opinion
stringlengths 349
204k
| instruction
stringclasses 163
values | question
stringclasses 160
values | choices
sequencelengths 0
311
| answer
sequencelengths 1
1
| task
stringclasses 157
values |
|---|---|---|---|---|---|
Glen D. WOOD, Karen Kraak Wood, and Karen Eslinger Wood, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 88-3088.
United States Court of Appeals, Fifth Circuit.
Jan. 20, 1989.
Paul M. Predmore, Teresa E. McLaughlin, Gary R. Allen, Chief, William S. Rose, Jr., Jonathan S. Cohen, Appellate Sec., Asst. Attys. Gen., Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendant-appellee.
Before JOHNSON, JOLLY and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
At issue is the status as taxable income of, or the right to a loss deduction for proceeds from drug smuggling forfeited to the federal government. The district court ruled that the drug proceeds were taxable income, and that the Appellant was not entitled to a loss deduction on the forfeited property under 26 U.S.C. § 1341 or § 165 on statutory and public policy grounds. 693 F.Supp. 452. Finding no error in the district court’s grant of summary judgment to the government, we affirm.
BACKGROUND
In 1978 and 1979, Appellant Glen D. Wood received commissions on marijuana that he handled. He earned $168,000 in commissions in 1978 and $432,000 in 1979, or a total of $600,000. The money was eventually channelled into a real estate development project at Basalt, Colorado. In 1982, Wood began cooperating with a federal investigation, and in 1983, he pled guilty to conspiracy to import marijuana and importation of marijuana. He was sentenced to serve four years in prison and to pay a $30,000 fine. Wood has paid the fine and has been released after serving his sentence.
In 1984, Wood submitted a “Counter Letter in Lieu of Forfeiture Proceeding” admitting that his interest in the Basalt properties was directly traceable to his $600,000 in commissions from drug smuggling, and thus, that the property had been impressed at all times with a constructive trust in favor of the federal government. Under the terms of the letter, he turned over his interest in the property to the Government.
In 1985, the IRS conducted an audit of Wood’s personal income tax returns. The IRS asserted deficiencies for 1978 and 1979 income tax that reflected a tax on the unreported drug proceeds. Wood consequently paid $309,551 in back taxes and $154,756 in additions to tax for fraud under 26 U.S.C. § 6653(b) as well as $271,249.53 in interest. Wood then filed administrative claims for refund with the IRS. The IRS denied the claims and Wood filed this suit for refund in the district court. The complaint sets out the amounts Wood asserts are due on some of his refund theories, but those are not at issue in this appeal.
On cross motions for summary judgment, the district court ruled that the proceeds were taxable income since Wood had exercised complete dominion and control over them in the taxable years, notwithstanding that they were later forfeited to the government. The district court denied a deduction under 26 U.S.C. § 1341 for taxes paid on income that was later determined to be subject to a superior claim of right. The district court also denied a loss deduction under 26 U.S.C. § 165 on public policy grounds. Finally, the district court ruled that an Eighth Amendment claim was barred because it was not raised in the prior IRS proceeding. Wood appeals each of these rulings.
I. DRUG PROCEEDS AS TAXABLE INCOME
We first consider whether the district court erred in including proceeds from drug smuggling as taxable income when the proceeds were forfeited to the federal government. Wood rests his claim regarding what is taxable income on an “estoppel” or “preclusion” argument. Section 61 of the federal tax code plainly defines gross income as “all income from whatever source derived.” Wood concedes that the gains from illegal activities are just as taxable as gains from legal activities. See James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1960) (overruling Commissioner v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946)). Instead, Wood claims that prior cases are distinguishable because this is the first case where the IRS has imposed a tax on proceeds that were already forfeited to the government. The government, he asserts, is acting inconsistently when it secures title to property and then taxes that property. Wood’s entire argument is summarized in his assertion that “to require such a result is fundamentally unfair.” Wood asks this Court to forbid or preclude the government from acting in this way.
Yet, Wood’s claim must fail, because the test for taxable income is not title. The test is actual dominion and control. In James, 366 U.S. at 219, 81 S.Ct. at 1055, the Supreme Court explained that a “gain ‘constitutes taxable income when its recipient has such control over it that, as a practical matter, he derives readily realizable economic value from it.’ ” (quoting Rutkin v. United States, 343 U.S. 130, 137, 72 S.Ct. 571, 575, 96 L.Ed. 833 (1952)). There is no dispute that Wood exercised complete dominion and control over the proceeds from the drug smuggling. It does not matter that by operation of law all right and title vested in the government as soon as the money was earned. The government did not even know the proceeds existed until some years later.
Thus, it is not inconsistent to tax income for years in which it was of economic benefit to the taxpayer. Moreover, whether or not forfeiture proceedings have begun should not affect the determination whether particular income is taxable. Nor should the test for taxable income turn, as Wood argues, on whether a taxpayer had to forfeit the proceeds to the federal government rather than make restitution to other victims. See James, supra (an embezzler was required to include embezzled funds in his gross income in the year when the funds were misappropriated, notwithstanding that he might later have to make restitution to the victim). The legal test for taxable income is dominion and control, and that test in its terms excludes consideration of what happens to income after it flows from the taxpayer’s hands.
There are of course statutory exemptions from taxable income. Wood admits there is no case law on point, but he requests this Court to carve out an exemption for ill-gotten proceeds that were already forfeited to the federal government and for which no taxes have yet been paid. Even if we thought such an exemption equitable, it is for Congress to carve out such exemptions, not the courts.
II. LOSS DEDUCTION UNDER 26 U.S.C. § 1341
We next consider whether the district court erred in denying a deduction for the forfeited proceeds under 26 U.S.C. § 1341. The district court concluded that “[t]he case of McKinney v. United States, 574 F.2d 1240 (5th Cir.1978), makes it very-clear that § 1341 cannot be used as authority to give plaintiff a deduction for a loss.” (footnote omitted) In McKinney, this Court held that § 1341 could not be invoked to justify a refund where the taxpayer restored embezzled funds to his employer. The Court ruled that the initial statutory requirement that “it appeared that the taxpayer had an unrestricted right to such item” was not met. Id. at 1243. Wood argues that McKinney can either be distinguished, or that it should be overruled.
(3) the amount of such deduction exceeds $3,000 ...
Wood asserts that it appeared to him that he had an unrestricted right to the drug proceeds even though they were subject to forfeiture to the federal government. Although the embezzler in McKinney knew that the funds did not belong to him, Wood alleges he did not know of the common law forfeiture in effect at the time of his drug activity. Thus, Wood argues that the availability of § 1341 should turn on his knowledge, or lack thereof, that he had no right to the drug proceeds.
We are reluctant to hold that a wholly subjective test of a claim of right to ill-gotten gains governs § 1341(a)(1). Speculation on the grounds for Wood’s claim of right to drug trafficking money is, however, unnecessary, as his § 1341 claim is foreclosed for an additional reason.
Section 1341 only applies where the taxpayer is entitled to a deduction under another provision of the tax code. United States v. Shelly Oil Co., 394 U.S. 678, 683, 89 S.Ct. 1379, 1382-83, 22 L.Ed.2d 642 (1969). Even if Wood prevailed on his theory that McKinney is distinguishable or must be overruled, he must then furnish another statutory source for a deduction. As will be seen, he cannot do this.
III. LOSS DEDUCTION UNDER 26 U.S.C. § 165
The district court ruled that the “forfeited money is properly classified as a loss under § 165,” but that “the loss must be disallowed due to the ‘sharply defined national policy against the possession and sale of marijuana.’ ” (quoting Tank Truck Rentals, Inc. v. Commissioner, 356 U.S. 30, 33-34, 78 S.Ct. 507, 510, 2 L.Ed.2d 562 (1958)).
Wood takes issue with this conclusion for three interrelated reasons. First, he relies on James v. United States, supra, which commented on the deductibility to an embezzler if funds were repaid to the victim:
We do not believe that Congress intended to treat a law-breaking taxpayer differently. Just as the honest taxpayer may deduct any amount repaid in the year in which the repayment is made, the Government points out that, “if, when, and to the extent that the victim recovers back the misappropriated funds, there is of course a reduction in the embezzler’s income.” (footnoted omitted)
366 U.S. at 220, 81 S.Ct. at 1056. Likewise, in McKinney, this court acknowledged that the embezzler was entitled to a loss deduction in the year he repaid the embezzled funds, 574 F.2d at 1241, even though the full benefit of § 1341 was not available to offset the actual taxes paid when he acquired the funds. Second, Wood suggests that if public policy is not offended by allowing a loss deduction by an embezzler, it is likewise not offended where a drug trafficker who has forfeited his ill-gotten gains later claims a deduction. Finally, he boldly argues that permitting a deduction does not frustrate public policy against drug abuse because the forfeiture constituted a remedial civil sanction rather than a criminal penalty. We disagree with each of his arguments.
Initially, it must be observed that we are bound by a prior decision of this court, unless it conflicts with James or we overrule it en banc. In Holt v. Commissioner, 69 T.C. 75, aff'd. per curiam, 611 F.2d 1160 (5th Cir.1980), a marijuana dealer was not permitted to deduct the value of his truck, trailer and marijuana that were seized by the federal government. This court approved the reasoning that § 165 would otherwise apply, but that a loss deduction under the circumstances would frustrate a sharply defined national policy. 69 T.C. at 79-80. See Tank Truck, 356 U.S. at 33-34, 78 S.Ct. at 509. The only significant distinction suggested by Wood between Holt and the present case is that Wood has forfeited the assets acquired with drug money and paid income tax on the forfeited amount of income, while Holt assertedly did not pay tax on the forfeited assets. This distinction is specious. There is no suggestion in our prior opinion that Holt never paid income tax on the money with which he acquired the assets that were later forfeited. But for the interest and penalties that accrued from Wood’s late payment of income tax on the 1978 and 1979 drug proceeds, Wood is in exactly the same tax position as Holt if no deduction is allowed.
Not only is Holt controlling, but upon reflection, James and McKinney appear irrelevant to a case predicated on a drug forfeiture. James asserted wholly in dicta that if a victim recovered embezzled funds, the embezzler would suffer a tax loss in the year of restitution. In McKinney, notwithstanding a § 1341 issue decided by this court, the government did not contest the taxpayer’s right to a loss deduction in the year of restitution. Neither of these cases considered the argument whether a sharply defined public policy enforced by fines or penalties would prohibit deductions for losses attributed to restitution payments. Compare Waldman v. Commissioner, 88 T.C. 1384 (1987), aff'd., 850 F.2d 611 (9th Cir.1988). In neither case was there any discussion about the comparative tax consequences of voluntary or forced restitution by the embezzler. We decline to base a broad “public policy” ruling on the penumbras of James and McKinney, which lack any public policy discussion whatsoever.
Contrary to Wood’s position, it is easy to sustain a public policy rationale for denying a loss deduction. Wood contends that because forfeiture is a civil rather than a criminal sanction, citing United States v. D.K.G. Appaloosas, Inc., 829 F.2d 532 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1270, 99 L.Ed.2d 481 (1988), a deduction will not offend public policy. He adds that he has paid his criminal debt by means of imprisonment and a $30,000 fine which he did not seek to deduct. It is obvious, however, that the public policy embodied in this nation’s drug laws is not enhanced by allowing a tax deduction to offset a forfeiture. The distinction between the “civil” or “criminal” character of forfeiture is irrelevant here. Forfeiture cannot seriously be considered anything other than an economic penalty for drug trafficking. Holt observed that “[t]he primary purpose of such forfeitures is to cripple illegal drug trafficking and narcotics activities by depriving narcotics peddlers of the operating tools of their trade.” 69 T.C. at 80. The legislative history of 21 U.S.C. § 881 reveals that the forfeiture provision was designed to reach drug traffickers “where it hurts the most,” 124 Cong.Ree. 36049 (1979), and to augment “the traditional criminal sanctions of fines and imprisonment.” H.R.Rep. No. 98-1030, 98th Cong., 2d Sess. (1984), U.S.Code Cong. & Admin. News 1984, p. 3182.
The Supreme Court in Tank Truck Rentals enunciated a flexible test for allowance of deductions “to accommodate both the Congressional intent to tax only net income, and the presumption against Congressional intent to encourage violation of declared public policy.” 356 U.S. at 35, 78 S.Ct. at 510. The Court declared:
If the expenditure [sought to be deducted] is not itself an illegal act, but rather the payment of a penalty imposed by the State because of such an act, as in the present case, the frustration attendant upon deduction would be only slightly less remote, and would clearly fall within the line of disallowance. Deduction of fines and penalties uniformly has been held to frustrate state policy in severe and direct fashion by reducing the “sting” of the penalty prescribed by the state legislature.
Id. Allowing a loss deduction would certainly “take the sting” out of a penalty intended to deter drug dealing.
IV. EIGHTH AMENDMENT CLAIM
Wood’s final contention is that having to pay taxes on the forfeited amounts, without receiving a loss deduction, violates the Eighth Amendment. He must overcome the hurdle that he did not raise this issue in the IRS proceedings. To do so, he contends that the statute and regulations at issue are only intended to prevent a litigant from varying the factual bases of his administrative argument at trial. He states that here, the Commissioner has been apprised of the exact nature of his claim and the facts upon which it is advanced. But Wood cites cases that reflect one purpose of the statute and regulations without mentioning that the requirements of 26 U.S.C. § 7422 and Treas.Reg. § 301.6402-2(b)(l) also inform the Government of the legal grounds relied on. United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 272, 51 S.Ct. 376, 377, 75 L.Ed. 1025 (1931); Alabama By-Products Corp. v. Patterson, 258 F.2d 892, 900-01 (5th Cir.1958).
It is the settled law of the Supreme Court and this Circuit that “[a]bsent a waiver by the government, a taxpayer is barred from raising in a refund suit grounds for recovery which had not previously been set forth in its claim for a refund.” Mallette Bros. Const. Co., Inc. v. United States, 695 F.2d 145, 155 (5th Cir.1983) (citing numerous prior cases). In Alabama By-Products, this Court explained the purpose of the rule precluding the raising of new issues in the courts of law:
All grounds upon which a taxpayer relies must be stated in the original claim for refund so as to apprise the Commissioner of what to look into; the Commissioner can take the claim at its face value and examine only those points to which his attention is necessarily directed. United States v. Garbutt Oil Co., 302 U.S. 528, [533], 58 S.Ct. 320, [323], 82 L.Ed. 405 [1938]. Anything not raised at that time cannot be raised later in a suit for refund. Carmack v. Scofield, 201 F.2d 360, 362 [5th Cir.1953] ...
‘A taxpayer is not permitted to advance one ground for refund in his claim filed with the Commissioner and thereafter rely upon an entirely different ground in a subsequent suit for refund, but is confined to the scope of the grounds for refund asserted in his claim filed with the Commissioner.’
258 F.2d at 900-01 (quoting Carmack, 201 F.2d at 362) (emphasis in original).
We find the instructions and the reasoning of these cases dispositive. The Commissioner should have been given the opportunity to consider whether the forfeiture law operating in tandem with the tax code constitutes a “fine”. The Commissioner also should have been given the opportunity to consider whether such a “fine” was an “excessive fine” within the meaning of the Eighth Amendment. In truth, we do not know, nor could the Commissioner have assayed, the exact amount of any refund that would be due to Wood if he were to prevail on any of his refund theories. The record does not show how any disposition of this case would affect his Eighth Amendment claim. Accordingly, the district court properly refused to consider the merits of this constitutional claim.
For the foregoing reasons, we therefore AFFIRM the judgment of the district court.
. Glen D. Wood’s former and present wife are parties to this proceeding solely because they filed joint income tax returns with him for the relevant tax years.
. The facts were stipulated by the parties.
. All section cites are to 26 U.S.C., the Internal Revenue Code, unless otherwise indicated.
. Section 1341 provides in relevant part that:
(a) General Rule. — If—
(1) an item was included in gross income for a prior taxable year (or years) because it' appeared that the taxpayer had an unrestricted right to such item;
(2) a deduction is allowable for the taxable year because it was established after the close of such prior taxable year (or years) that the taxpayer did not have an unrestricted right to such item or to a portion of such item; and
.The Court’s position in McKinney finds support in Treas.Reg. § 1.1341 — 1(a)(2) which provides in relevant part that;
For the purpose of this section "income included under a claim of right" means an item included in gross income because it appeared from all the facts available in the year of inclusion that the taxpayer had an unrestricted right to such item.
. Even if he had a claim to the proceeds, we might question whether it is "of right” any more than was McKinney’s. Wood’s failure to report the income on his 1978 and 1979 tax returns surely indicates some question in his mind about its status.
. Allowance of the forfeited amounts as a trade or business expense is expressly barred by § 162(f) and 280E of the Code.
. Section 165(a) allows a deduction for "any loss sustained during the taxable year and not compensated for by insurance or otherwise.’’
. DKG Appaloosas, Inc., supra, discussed only the extent to which a drug forfeiture is civil or criminal for the purposes of considering whether certain constitutional safeguards appropriate to criminal prosecutions would apply. Except for its bearing on, Wood’s eighth amendment claim, which we do not reach, DKG Appaloosas is inapposite.
. The Eighth Amendment provides that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
. Treas.Reg. § 301.6402-2(b)(l) provides, in pertinent part, as follows:
No refund or credit will be allowed ... except upon one or more of the grounds set forth in a claim [properly] filed.... The claim must set forth in detail each ground upon which a credit or refund is claimed and the facts sufficient to apprise the Commissioner of the exact basis thereof.... | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). | This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. | [
"not ascertained",
"male - indication in opinion (e.g., use of masculine pronoun)",
"male - assumed because of name",
"female - indication in opinion of gender",
"female - assumed because of name"
] | [
3
] | songer_appel2_7_2 |
SOLVAY PROCESS CO. v. NATIONAL LABOR RELATIONS BOARD.
No. 9519.
Circuit Court of Appeals, Fifth Circuit.
Oct. 7, 1941.
Edmund M. Preston and T. Justin Moore, both of Richmond, Va., C. V. Porter and Victor A. Sachse, both of Baton Rouge, La., and Monte M. Lemann and J. Blanc Monroe, both of New Orleans, La., for petitioner.
Robert B. Watts, Gen. Counsel, National Labor Relations Board, and Lewis M. Gill, Atty., National Labor Relations Board, both of Washington, D. C., for respondent.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
FOSTER, Circuit Judge.
In the above numbered and entitled cause the National Labor Relations Board, at the request of the National Defense Mediation Board, has petitioned us to clarify and interpret the decree entered herein on March 27, 1941, particularly paragraph 2(b), which is as follows: “2(b) Upon request, bargain collectively with Oil Workers’ International Union, Local No. 424, as the exclusive representative of all the employees at the respondent’s Baton Rouge, Louisiana, plant, exclusive of clerical and supervisory employees, laboratory employees, gatemen, brine-well employees, and mill, water, and wharf employees, in respect to rates of pay, wages, hours of work, and other conditions of employment, provided, however, that the Solvay Process Company or any labor organization at its Baton Rouge, Louisiana, plant other than Solvay Employees Council may petition the Board for a certification of representatives, in which event the Company may abide the decision of the Board and comply with any supplemental order to enforce certification by the Board, in lieu of bargaining collectively with Oil Workers’ International Union, Local No. 424, as herein ordered”;
The request, so far as this court is concerned, is without precedent, but in view of the present situation regarding national defense and the peculiar facts of the case, we have decided to entertain the request. However, this action is not to be considered as a precedent for other cases in the future. The pleadings before us show the Solvay Company is engaged in important defense work. A strike of any considerable magnitude would seriously interfere with this work and would adversely affect the welfare of the public and the government of the United States.
It also appears from the pleadings that the Chemical Workers’ Union No. 22609, American Federation of Labor, is claiming that the members of that local constitute a majority of the employees of the Solvay Process Co. That union objects to the company entering into an agreement with the Oil Workers’ International Union No. 424 until that question is decided, and had petitioned the National Labor Relations Board to call an election to determine which labor organization should be designated as representing all the employees as the bargaining agent with the Solvay Process Co. That petition was dismissed by the Board.
In interpreting the decree we hold that the Solvay Process Co. is obligated to negotiate with the Oil Workers’ International Union No. 424, affiliated with the Committee for Industrial Organization, without waiting for an election, and that the proviso of section 2(b) does not create a condition precedent to the taking effect of that part of said subsection.
We consider that patriotism in the emergency should override any factional differences between labor organizations and the Board should act promptly on a petition hereafter filed by a labor union or the Company and fully consider and determine the merits, and call an election within the shortest possible period within which it may be effectively held. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer_genapel1 |
NASHVILLE BRIDGE COMPANY, Appellee, v. A. B. BURTON COMPANY, Inc., Intervenor, Appellant.
No. 8422.
United States Court of Appeals Fourth Circuit.
Argued Oct. 25, 1961.
Decided Feb. 1, 1962.
Clyde C. Randolph, Jr., Winston-Salem, N. C. (James R. Caskie, S. Bolling Hobbs, and Caskie, Frost, Davidson & Watts, Lynchburg, Va., on brief), for intervenor appellant.
David M. Clark and Stephen Millilcin, Greensboro, N. C. (Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., on brief), for appellee.
Before SOBELOFF, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.
ALBERT V. BRYAN, Circuit Judge.
Intervention as a party defendant in this action, which involves a material-man’s claim on a construction contract bond of A. B. Burton Company, Inc. and named defendants, was sought by but denied to Burton. The Company appeals on the ground that its motion pleaded facts entitling it to enter the case as of right. Rule 24, F.R.Civ.P., 28 U.S.C.A. Failing this, refusal to allow permissive intervention is assailed as an abuse of the District Court’s discretion.
But the whole issue, we think, will be mooted by the motion — filed after the appeal — of Burton’s surety, an original defendant, to implead Burton as a third-party defendant. The motion is obviously well made for it will allow the determination in a single action of all the claims “arising out of the transaction or occurrence” between the plaintiff and the surety. Rule 14, F.R.C.P. The first result will be this appeal’s dismissal.
This conclusion is readily developed, since the problem here is solely one of pleading, from a narrative of the facts distilled from the allegations of the complaint, the answers and counterclaim, and the motion of intervention. Nashville Bridge Company, a Delaware corporation, brought the action in the District Court upon diversity jurisdiction against two South Carolina corporations, the defendants F. A. Triplett, Inc. and James T. Triplett, Inc. and the defendant Standard Accident Insurance Company, of Michigan charter. The Tripletts, together with appellant Burton, had entered into a contract with the North Carolina State Highway Commission for the construction of certain public roadways including a bridge of considerable dimensions. Standard signed, as surety, the required contract bond which the Tripletts and Burton had executed as principals. The bond protected those who furnished labor or materials to the principals for use in the project. Nashville sued as a subcontractor and materialman of the Tripletts claiming $43,000 of the Tripletts and Standard. It did not sue Burton.
In the performance of the State contract the Tripletts, who had in the allocation of the work among the principals undertaken the bridge erection, ordered from plaintiff Nashville a large amount of structural steel. Burton was not mentioned in the purchase agreement. Except for $43,000, for which Nashville sued, the entire price of the steel was paid by the Tripletts. This balance they refused to pay for the reason that the steel had not been delivered, they said, in accordance with the agreed delivery schedule and the completion of the bridge was thereby delayed, with resultant damages to the Tripletts of $15,143.00 and to Burton .of $36,821.93. Burton had been assigned those segments of the State contract requiring the use of the bridge, and its damages assertedly were occasioned by the unavailability of the bridge due to Nashville’s default.
To recover their damages the Tripletts presented a “Second Defense and Counterclaim” in the joint answer of themselves and Standard to Nashville’s complaint. In it the defendants asked that Burton also be made a party defendant to the action, so that Burton could prosecute its claim against Nashville, the Tripletts and Burton could square their accounts in accordance with the outcome of the case, and Standard could obtain indemnity, if necessary, from Burton. Burton meanwhile had moved to intervene and file a similar answer, with a like “Second Defense and Counterclaim” to recover its damages of Nashville.
Burton’s motion was granted ex parte, but later upon the motion of the plaintiff it was stricken without prejudice to Burton to sue Nashville in a separate action. Ruling on the defendants’ joint responsive pleadings, the Court directed the Tripletts and Standard to replead, due to confusion in their answer and counterclaim. It reserved to Standard the right to “amend its answer to assert any claim it might have against A. B. Burton Co. Inc.”. Apparently this saving clause suggested a third-party proceeding by Standard against Burton. Neither the Tripletts nor Standard is appealing. Burton is here asking review and reversal of the order overruling its motion to intervene.
The parties have argued and briefed the case on the principles of intervention. However, as the appellant Burton, a Virginia corporation subject to process in North Carolina, is now impleaded as a third-party defendant by Standard and, upon entry of the order confirming the impleader, will be a party in the action, it will be endowed with every right of defense, claim, counterclaim and cross-claim which it asked to assert in its motion for intervention. These privileges are amply bestowed upon a third-party defendant by Rule 14, F.R.C.P., reading in pertinent portion as follows:
“(a) * * * The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defense as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. * * *»
See American Export Lines Inc. v. Revel, 262 F.2d 122, 124 (4 Cir. 1958).
Manifestly, the concern of the appellant is dispelled and no. reason for the appeal remains. It will be dismissed, each party bearing its own costs.
Appeal dismissed. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. | What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. | [] | [
14
] | songer_civproc1 |
Morris COHEN, d/b/a Piehler Furs, Petitioner, Appellant, v. Arthur T. WASSERMAN, Trustee, Appellee.
No. 5124.
United States Court of Appeals First Circuit.
Heard Oct. 5, 1956.
Decided Dec. 5, 1956.
Alan J. Dimond, Boston, Mass., with whom Widett & Kruger, Boston, Mass., was on brief, for appellant.
Julius Thannhauser, Boston, Mass., with whom Wasserman & Salter, Boston, Mass., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from an order of the United States District Court for • the District of Massachusetts affirming an order of the referee in bankruptcy, entered on February 29, 1956, denying petitioner-appellant’s petition for the establishment of a lien in the amount of $968 on the proceeds of an eminent domain proceeding, held by the respondentappellee, trustee in bankruptcy.
There being no issue as to the facts, they may be briefly summarized as found by the referee. The petitioner-appellant, Morris Cohen, an individual doing business as Piehler Furs, brought suit against the bankrupt, Antoinette G. Monks, by writ dated August 8, 1949 with an ad damnum of $975. On August 9, 1949, acting under said writ, the appellant caused an attachment to be made on the bankrupt’s real estate located in Suffolk County in the Commonwealth of Massachusetts. On September 8, 1949 the bankrupt’s real estate, which was subject to the aforementioned attachment, was taken by the Commonwealth by exercise of the right of eminent domain. On March 10, 1950 the appellant obtained a judgment against the bankrupt in the amount of $968. Within thirty days from the entry of the judgment the sheriff purported to levy on the bankrupt’s interest in the attached real estate in Suffolk County. The sheriff immediately suspended further levy by “reason of prior attachments.” Presumably, the “prior attachments” mentioned in the sheriff’s return referred to the interest of the Commonwealth in the property resulting from the eminent domain proceeding.
Receivers of the bankrupt’s property having been appointed on April 11, 1950 by the Superior Court of Suffolk county, the appellant, on May 11, 1950, filed a petition for leave to intervene in the receivership proceeding, alleging that the bankrupt, by virtue of a letter dated February 14, 1950 had ordered the proper state officer to pay appellant $951.98 out of the proceeds of the eminent domain proceeding with respect to the real estate in Suffolk County, and praying that appellant’s claim be established as a preferred claim. This petition was never acted upon by the court, and it is not of any significance on this appeal.
On May 25, 1950 bankruptcy proceedings were initiated by an involuntary petition. Subsequently, the Commonwealth paid to the respondent-appellee, trustee in bankruptcy, $32,000 on account of a $48,000 judgment obtained by the appellee ($16,000 of said judgment having been paid to prior mortgagees) for the taking of the bankrupt’s real estate. No part of the appellant’s claim was paid by the appellee.
The referee, concluding that the title of the bankrupt to the real estate under attachment was extinguished by the taking under eminent domain on September 8, 1949, and that the attachment made by petitioner was extinguished as a result of the eminent domain proceeding, ordered that appellant’s petition to establish a lien, filed August 25, 1955, be denied. This appeal is taken from an order of the district court entered on April 17, 1956 affirming the referee’s action.
The question presented is whether appellant’s mesne process attachment under Massachusetts law created a valid lien which was transformed into an equitable lien upon the taking of the attached real estate by eminent domain and, as such, was enforceable against the proceeds of the taking even though judgment was not obtained by appellant until after the taking by eminent domain, and notwithstanding that the actual proceeds of the condemnation were not recovered by the trustee until after the owner of the property had been declared bankrupt.
Appellee mainly contends that where realty under mesne process attachment is taken by right of eminent domain the attachment lien is extinguished, and no equitable lien against the proceeds of the taking arises to take its place, because the lien of attachment is merely inchoate. To answer this contention we must first determine the nature of the lien created by appellant’s mesne process attachment of August 9, 1949.
It is clear that the nature of such a lien depends wholly upon the local law. Yumet & Co. v. Delgado, 1 Cir., 1917, 243 F. 519, Massachusetts courts have stated that “an attachment of property on mesne process is a specific charge upon the property,” Davenport & Others v. Tilton, 1845, 10 Met. 320, 327, 51 Mass. 320, and, further, that it “doubtless creates an immediate lien,” Gardner v. Barnes, 1871, 106 Mass. 505, 506. These cases are consistent with an earlier Supreme Court holding from which it can be gathered that in Massachusetts, for purposes of the bankruptcy law of 1841, an attachment on mesne process created a lien equal in stature to a common law lien, or a lien acquired after judgment. See Peck v. Jenness, 1849, 7 How. 612, 48 U.S. 612, 12 L.Ed. 841.
That a lien, in Massachusetts, arising from mesne process attachment, is a perfected charge or encumbrance upon the attached property from the time of attachment, is evidenced by the language in In re Blair, D.C.Mass.1901, 108 F. 529, 530, where the court stated that where “the lien is created by the attachment, the judgment and levy create no new or additional lien, but only enforce a lien already existing.” See also Gatell v. Millian, 1 Cir., 1924, 2 F.2d 365; In re Crafts-Riordon Shoe Co., D.C.Mass.1910, 185 F. 931. But see Ex parte Foster, C.C.D.Mass.1842, 9 Fed.Cas. p. 508, No. 4,960.
In light of these decisions we believe that mesne process attachment in Massachusetts creates a valid lien on the property attached from the time the attachment is made. A subsequent judgment for the plaintiff does no more than establish the fact that the lien was rightly obtained. Yumet & Co. v. Delgado, supra, 243 F. at page 520. If the lien is inchoate in any way, we believe it is only so as to its enforceability against the encumbered property. The lien cannot be enforced by the attaching plaintiff against the property until he has recovered judgment. See Yumet & Co. v. Delgado, supra at page 520. But, that enforceability of the lien is not available to the plaintiff until judgment is recovered, does not affect the existence and quality of the attachment as a valid lien, as evidenced by the fact that anyone taking the property after the attachment could take it only subject to the lien.
Having concluded that the appellant had a valid lien at the time of the taking of the attached property by the Commonwealth on September 8, 1949, we must next determine what became of the lien after the taking by eminent domain. Although no Massachusetts cases dealing with this very question have come to our attention, the law is well settled elsewhere that a lien creditor may enforce his lien in equity against the proceeds of an eminent domain award. This principle is enunciated in 2 Nichoís, Eminent Domain, § 5.74 (3d Ed. 1950):
“A lien is not a proprietary interest or an estate in the land, upon which it stands, but is a remedy against it, and, as the legislature may constitutionally impair a remedy without compensation, when land subject to lien is taken by eminent domain, the holder of the lien is not entitled to be made a party, or to recover compensation from the condemnor. It is, however, well settled that the award stands in place of the land, and is subject to the same liens, and that consequently a lienor may proceed against the award upon general equitable principles, and without the aid of any statute. He may have his lien satisfied out of the fund awarded to the owners of the legal title as compensation for the land in advance of other creditors.”
That this court undoubtedly would have applied a statutory form of this equitable principle in People of Puerto Rico v. United States, 1 Cir., 1942, 131 F.2d 151, certiorari denied 1943, 318 U.S. 775, 63 S.Ct. 832, 87 L.Ed. 1144, but for the finding that the tax lien under Puerto Rico statutes did not attach prior to the taking of the property by eminent domain, appears abundantly clear from the holding in People of Puerto Rico v. PaloSeco Fruit Co., 1 Cir., 1943, 136 F.2d 886.
Where property was taken by eminent domain, the title to the land vesting in the United States, the Second Circuit recognized that the lien of a first mortgagee was transferred to the award. United States v. Certain Lands in Borough of Brooklyn, 2 Cir., 1942, 129 F.2d 577. In considering whether a tax lien survived the taking of the property by eminent domain, the Third Circuit stated that the “condemnation award when made stands in the place of the land and the rights of all persons may be treated as though transferred to the award.” United States v. 25,936 Acres of Land, etc., 3 Cir., 1946, 153 F.2d 277, 279.
Moreover, the Massachusetts courts, in analagous situations, have applied the general principle “by which, in equity, one who has a lien upon property may follow the proceeds, and enforce his lien thereon, if there is no remedy at law.” Worcester v. Boston, 1901, 179 Mass. 41, 50, 60 N.E. 410, 412. Thus, in the Worcester case it was held that the mortgagee had an equitable lien upon any surplus proceeds remaining in the hands of the tax authorities who had sold the mortgaged property in a tax sale. In so holding, the court cited an earlier decision, Wiggin v. Heywood, 1875, 118 Mass. 514, where a creditor who had a mesne process attachment on property that was sold at a mortgage foreclosure, prior to recovery of judgment by him, was allowed to maintain a bill in equity to impress an equitable lien upon any surplus proceeds remaining in the hands of the mortgagee. The instant case is strikingly similar to the Wiggin case with the only variable being that here it was the taking by eminent domain instead of a mortgage foreclosure that extinguished the attaching creditor’s rights at law. This difference cannot serve to distinguish the instant case from it in view of the broad language of the court in the Wiggin case [at pages 516-517]:
“No means being provided by the common law or by statute for the attaching creditor to enforce his right in this fund, a case is presented in which a court of chancery, according to its well settled practice, will afford a remedy, to the same effect and upon the same conditions, as nearly as may be, as in proceedings at law in like cases.”
Where the collector of taxes of the City of Boston sought in equity to impress the city’s legal tax lien upon the proceeds held by a second mortgagee of certain real estate taken by eminent domain, the court recognized the general principle of the Wiggin case, and seems to have denied the collector the requested relief on the technical ground that his powers, being strictly statutory, authorized him to .proceed only “against the person assessed,” and the second mortgagee was not that person. Collector of Taxes v. Revere Building, Inc., 1931, 276 Mass. 576, 580, 177 N.E. 577, 578, 79 A.L.R. 112.
Based on the above precedents, we conclude that appellant’s mesne process attachment of August 9, 1949, constituting a valid lien, was transformed into an equitable lien upon the taking of the attached property by eminent domain on September 8, 1949, which equitable lien continued until appellant had reduced his claim to judgment, finally attaching upon the condemnation award paid to the appellee, trustee in bankruptcy, on February 25, 1953. From the time of the taking of the property, August 9, 1949, to the time the award was recovered by appellee, February 25, 1953, appellant’s equitable lien may be considered as attaching to the right of action that first Monks, the bankrupt, and then her trustee had against the Commonwealth for the taking of the property.
Since the lien arose upon attachment, on August 9, 1949, some ten months before the petition in bankruptcy was filed, it cannot be argued that appellant could not acquire a lien because the property of the bankrupt had come into the custody of the bankruptcy court. It is well established that, “The trustee takes the property of the bankrupt, in cases unaffected by fraud in the same condition that the bankrupt, himself, held it and subject to all valid legal or equitable liens thereon not expressly rendered void by the terms of the Bankruptcy Act [11 U.S.C.A. § 1 et seq.].” Porter v. Searle, 10 Cir., 1955, 228 F.2d 748, 750.
Appellee also contends that appellant lost his equitable lien since he failed to implement it by seizure on execution of property of the bankrupt within thirty days after recovery of judgment as provided by Mass.Ann.Laws c. 223, § 59 (1955).
The record shows that on March 13, 1950, three days after recovery of judgment, execution was issued. Further, that on April 7, 1950, the sheriff suspended further levy presumably due to the fact that the property had been taken by the Commonwealth on September 8, 1949. The appellant could not comply with the statute by enforcing his lien on the proceeds by legal or equitable process in a Massachusetts state court, since no process of attachment, legal or equitable, could have been brought against the taking authority, the Commonwealth, an indispensable party to any proceeding to enforce the lien on the proceeds prior to payment. McCarthy Co. v. Rendle, 1916, 222 Mass. 405, 111 N.E. 39. The Commonwealth cannot be impleaded in its own courts except by its consent clearly manifested by the legislature, and this consent has not been given with respect to either bills to reach and apply or attachment by trustee process. McCarthy Co. v. Rendle, supra; Dewey v. Garvey, 1881, 130 Mass. 86. Under such circumstances, where it is clear that the petitioner’s only means of enforcing his lien was to bring the present petition against the trustee in bankruptcy after the trustee had received the payment of the eminent domain award, it would be inequitable to apply the thirty day statutory limitation.
Neither can the appellant be considered as having lost his right to a lien due to his delay in bringing this action. Although appellant waited a period of two and one half years after appellee had recovered the eminent domain award, it cannot be fatal to his petition because appellee has not shown any injury or detrimental change of position due to the delay.
A judgment will be entered vacating the order of the district court and remanding the case to that court for the entry of an order consistent with this opinion.
. Although this date does not appear in the findings of the referee, it is included in appellee’s brief as a matter of judicial record. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". | What is the specific issue in the case within the general category of "economic activity and regulation"? | [
"taxes, patents, copyright",
"torts",
"commercial disputes",
"bankruptcy, antitrust, securities",
"misc economic regulation and benefits",
"property disputes",
"other"
] | [
3
] | songer_casetyp1_7-2 |
Steve STUMBO, Petitioner-Appellant, v. William SEABOLD, Superintendent, Luther Luckett Correctional Complex, La-Grange, Kentucky, Respondent-Appellee.
No. 82-5500.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 24, 1983.
Decided April 13, 1983.
R. Neal Walker (argued), Kevin Michael McNally, Frankfort, Ky., court appointed, for petitioner-appellant.
Steven L. Beshear, Atty. Gen. of Ky., Eileen Walsh, Joseph Johnson (argued), Frankfort, Ky., for respondent-appellee.
Before KEITH, MERRITT and KENNEDY, Circuit Judges.
MERRITT, Circuit Judge.
Petitioner appeals from the District Court’s denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. Petitioner was convicted in a Kentucky court of first degree murder, and given the minimum sentence of 20 years. He claims that he was denied due process of law under the fourteenth amendment by the Kentucky law allowing the victim’s family to hire a private prosecutor to prosecute the ease. Alternatively he alleges that even if the use of private prosecutors is not per se unconstitutional, the retained prosecutor in this case engaged in such gross misconduct that petitioner was denied a fair trial. The magistrate who originally heard this case recommended granting the writ on the ground of prosecutorial misconduct. The District Judge, however, denied the writ, finding that the prosecutor’s conduct, although improper, was not egregious enough to deprive the defendant of a fundamentally fair trial.
We do not believe that Kentucky law, which allows a privately retained prosecutor to assist the public prosecutor in criminal cases, constitutes a per se violation of due process. Many states have such laws, although they are rarely used. Petitioner argues that the private prosecutor has a single-minded goal of obtaining a conviction because his only ethical obligation is to his client (the victim or his family) while the public prosecutor’s duty is to seek “justice” on behalf of the state. Kentucky law, however, requires the public prosecutor to retain control over the conduct of the trial to ensure that the state’s interests are protected. Absent some evidence that the private prosecutor has in fact ignored the interests of justice in favor of seeking a conviction, his assistance of the public prosecutor is not a per se constitutional violation.
On habeas corpus review, the standard to be applied to allegation of prosecutorial misconduct is whether the petitioner was deprived of a fundamentally fair trial. Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.1979). Our careful review of the record convinces us that in the context of this case, where the evidence of guilt was weak, the private prosecutor’s misconduct deprived the petitioner of a fair trial. We are concerned that a serious injustice may have occurred in this case, and we believe that there should be another trial, one in which the egregious acts of prosecutorial misconduct which occurred in the first trial are not present.
Every tribunal which has reviewed this case has agreed that prosecutor Burns’ conduct was highly improper. The Kentucky Supreme Court’s description of his misconduct clearly and concisely demonstrates the kind of tactics used by the prosecutor to obtain a conviction.
Instances of Mr. Burns’ misconduct cited by Stumbo include: calling the victim “the dead boy” on ten separate occasions during trial; repeatedly shouting at witnesses; flourishing the murder weapon in the faces of the jury and the witnesses; snapping the revolver’s trigger repeatedly while cross-examining appellant, calling appellant “Johnny Murder Boy”; calling the victim’s death an execution; referring to the offense as “cold-blooded murder” several times; calling appellant’s defense a “cock-and-bull story”; calling for a guilty verdict to prevent murder cases from being “stacked up” in Floyd County; stating to the jury during closing argument that appellant “committed the crime of murder, in our opinion”; asking questions of defense witnesses Mr. Burns knew would be denied and for which he knew no proof would be offered; and repeating questions previously ruled inadmissible. Appellant objected to each of the above instances.
Stumbo v. Commonwealth (file No. 80-SC-422-MR), Memorandum Opinion at 3.
We find especially egregious Mr. Burns’ attempts to suggest to the jury through cross-examination and final argument, the existence of a conspiracy to murder between the defendant and his cousin, when there was absolutely no evidence to support such a theory. (Tr. 261-62, 380) Also highly improper were Mr. Burns’ references to the defendant as “Johnny Murder Boy” (Tr. 379), and his statement to the jury that if they believed this “cock-and-bull story” murder cases would be “stacked up” in Floyd County. (Tr. 383)
Had the evidence of guilt been overwhelming in this case, prosecutorial misconduct might be considered harmless error. There was little evidence, however, to support the prosecution’s theory of intentional homicide and a significant amount of evidence to support the defendant’s claim of accidental shooting. The only evidence the State cited during oral argument to support the theory that the defendant intended to shoot the decedent was the testimony of one witness to the effect that defendant Stumbo walked up to the decedent and put the gun right up against his stomach, and then it went off. (Tr. 112) He was the only witness who actually saw the shooting occur. The testimony of the other two prosecution witnesses was ambiguous. Apparently they did not see exactly how the gun fired at the last minute and only heard the shot. All the witnesses admitted that (1) defendant Stumbo and the decedent were brothers-in-law and good friends, (2) the shooting occurred in the context of defendant attempting to break up a fight between his cousin and the decedent, (3) the cousin had cocked the gun before placing it on the seat of the car, and (4) immediately after the shooting, defendant Stumbo said, “Oh God, I didn’t know the gun was cocked.”
Since the issue of the sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), was not exhausted in state court nor raised by the parties, we have no occasion to rule on this issue. We do hold that in a case such as this, where the evidence of guilt is at best conflicting, prosecutorial misconduct such as that which occurred in the instant case, which tends to prejudice and inflame the jury, deprives the defendant of a fundamentally fair trial and deprives him of due process of law.
Accordingly, we reverse the decision of the District Court and grant the writ of habeas corpus, with orders that the State of Kentucky either release the petitioner or retry him within 90 days. | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
17
] | songer_state |
Harold Ed BURNETT, Plaintiff-Appellant, v. Larry D. KERR and United States of America, Defendants-Appellees.
No. 87-1003.
United States Court of Appeals, Tenth Circuit.
Jan. 4, 1988.
Art Fleak, Tulsa, Okl., for plaintiff-appellant.
Susan W. Pennington, Asst. U.S. Atty. (Ben Baker, Asst. U.S. Atty., on the brief), Tulsa, Okl., for defendants-appellees.
Before HOLLOWAY, SETH and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Harold Ed Burnett was convicted of first-degree murder and sentenced to life imprisonment. His conviction was affirmed on appeal. United States v. Burnett, 777 F.2d 593 (10th Cir.1985). Burnett then filed a petition for a writ of habeas corpus on the basis of ineffective assistance of counsel. The district court denied the petition, and we affirm.
I.
On April 15, 1982, Harold Ed Burnett, Michael Simpson, and Dale Jackson shot and killed Labon Marchmont Miles. Burnett and Miles were both Indians, and the shooting took place in Miles’ home, a restricted Osage homestead allotment. The United States therefore had exclusive jurisdiction over the trial of Burnett, id. at 594-97, and Burnett was tried with Simpson in the District Court for the Northern District of Oklahoma. Burnett argued that he killed Miles in self-defense, and testified to that effect. After a four day jury trial, he was convicted of first degree murder.
During the course of the trial, the prosecutor questioned Burnett on cross-examination about his presence at the scene of a homicide committed by Miles. Miles had “stomped” a woman to death. Burnett was present at the time, and later testified against Miles at Miles’ felony trial. Miles subsequently made death threats against Burnett and his family. After questioning Burnett about this incident, the prosecutor asked Burnett whether he had ever been present at any other homicide scene. Burnett answered “Yes.” His attorney immediately moved for a mistrial and dismissal with prejudice.
The court reserved its ruling on the motion and admonished the jury to ignore the question and answer. Testimony continued. The following morning the court gave thorough consideration to the motion, and granted a mistrial. When the court announced that the new trial would commence the following Monday, Burnett’s attorney asked to confer with his client. He then stated that if the court refused to dismiss the case with prejudice instead of granting a mistrial without prejudice, Burnett preferred to continue with the existing jury panel. After the court questioned Burnett to ensure that this was in fact Burnett’s choice, the trial continued. On appeal, we held that Burnett’s due process rights were not denied by permitting the trial to proceed under these circumstances. Id. at 597.
Before closing arguments, a jury instruction conference took place. Burnett’s attorney objected to the court’s proposed instruction on self-defense on the ground that it was an incorrect statement of the applicable law. He renewed an oral request made three days earlier that a different instruction be given. The court denied his request because he had not submitted a written instruction. On appeal, we held that the instruction given by the district court was a correct statement of law, id. at 597, and that the district court did not err in rejecting the oral instruction offered by Burnett’s attorney, id. at 598.
II.
The right to counsel is guaranteed by the Sixth Amendment. This provision has been interpreted to mean not only that the government may not prevent a defendant from being represented by counsel, but also that the government has the affirmative obligation to provide counsel for those criminal defendants who cannot afford such services themselves. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 71-72, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). This right to counsel is not merely the right to have a person who is a lawyer at one’s side during trial; it is the right to effective assistance of counsel at all substantial phases of the criminal justice process. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); United States v. Cronic, 466 U.S. 648, 655-56, 104 S.Ct. 2039, 2044-45, 80 L.Ed.2d 657 (1984); McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970).
To prevail on his claim of ineffective assistance of counsel, Burnett must make two showings. First, he must prove that his counsel was so incompetent that he did not provide the “Assistance of Counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688, 104 S.Ct. at 2065. Second, Burnett must prove that counsel’s errors fatally prejudiced his defense. Id. at 687, 104 S.Ct. at 2064. He thus must show "that there is a reasonable probability that, but for [his] counsel’s unprofessional errors the result of [his trial] would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694,104 S.Ct. at 2068.
Because appellate courts enjoy the benefits of hindsight, and because competent attorneys must often choose from a broad range of possible strategies, courts must adopt a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. at 2065. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding; specifically, we must consider whether the adversary process upon which we rely to achieve justice broke down in such a way that we nor longer have confidence that the result of the trial is correct. Id. at 696, 104 S.Ct. at 2069.
Burnett, now represented by new counsel, argues that his appointed trial counsel was ineffective under this standard. He lists three instances of counsel’s alleged ineffectiveness:
“A. Counsel was inadequate when he: 1) failed to advise appellant of his Fifth Amendment right not to testify, and 2) instead advised him that he had to take the stand and give testimony, thus incriminating himself.
“B. Counsel was inadequate when he: 1) moved for a mistrial, and 2) obtained the Trial Court’s favorable ruling, then 3) decided he did not want to try the case again, and 4) withdrew his Mistrial Motion.
“C. Counsel was inadequate when he failed to request, in writing, an adequate instruction on self-defense.”
Brief of Appellant at iii.
A. The Right to Remain Silent
Failure by counsel to advise a client of his right to remain silent, and a representation by counsel that a client has no choice under law but to take the stand would be among the most serious instances of attorney error. In this case, however, there is no evidence to support Burnett’s claim. The sole evidence on the issue is an affidavit submitted by Burnett’s trial counsel at the direction of the district court during its consideration of the habeas petition. The affidavit reads, in relevant part, as follows:
“I believe that I did inform Petitioner of his Fifth Amendment right not to testify. It is entirely possible and likely that I told Petitioner that his failure to testify might be detrimental to his defense in the eyes of the jury despite an instruction from the Judge to the contrary.”
Brief of Appellant at App. A. Burnett submitted no affidavits or other evidence to contradict the attorney’s statement. While the affidavit submitted is not as definite as we would wish, we cannot read it as anything other than some evidence that counsel did in fact inform Burnett of his right not to testify. Burnett has thus not sustained his burden of proof on this issue.
B. The Mistrial Motion
It is clear from the record that the district court was surprised when Burnett’s attorney informed it that he wished to withdraw his motion for a mistrial after the court had granted it. The court had given counsel ample opportunity to argue the motion, had given the motion serious consideration, and “after a great deal of soul searching as to [Burnett’s] rights as an American citizen being tried under our justice system ...” rec., vol. VI, at 505, had at length decided in favor of granting the motion.
The court questioned Burnett's attorney closely as to his reason for withdrawing his motion. Counsel explained that his request from the beginning had been for a mistrial and dismissal with prejudice, on the ground that the fatal question had been asked intentionally. He explained further,
“Your Honor, I have conferred with my client and he informs me that he has been through this for two years already, sir, and he has been through this for four days here and his family has, too. He understands and he is willing to take the stand and confer [sic] this to Your Hon- or, too, on the record but he likes this jury panel. He has — we have picked them, he has testified before them and he is willing to put his faith in their hands....
“... He has testified once. The government will have opportunity for further using their investigative resources to try to pick apart his story. He wants to go ahead with this panel.”
Rec., vol. VI, at 503-05. The court then questioned Burnett, asking him whether he “waive[d] any objection now and forever more in regard to this statement made by [the prosecutor] during your cross-examination ... regardless of what this jury may do?” Id. at 505. Burnett replied that he did. Id.
Burnett’s attorney thus had conferred with his client and had two legitimate reasons for declining the mistrial— Burnett liked the jury panel, and he feared the use the government might make of his testimony at a subsequent trial. Burnett was present during this discussion and freely waived any objections, on the record. Given the broad deference we must accord counsel’s judgment, the legitimate reasons for the decision, and Burnett’s express approval, and given that we have already held that Burnett’s due process rights were not violated by permitting the trial to proceed, we hold that Burnett’s counsel’s decision to withdraw his motion for a mistrial did not render his performance constitutionally ineffective.
C. The Self-Defense Instruction
Whether or not failing to present jury instructions in writing could ever render an attorney’s performance unreasonably ineffective, Burnett was not prejudiced in this case. This court has already held that the instruction actually given by the district court was a correct statement of law. Burnett, 777 F.2d at 597. We further upheld the power of the court to refuse to accept the instruction Burnett’s attorney offered on the ground that it was not properly submitted. Id. at 598. The record suggests, moreover, that the district court’s refusal was based in part on a rejection of the attorney’s, argument that the court’s instruction was based on the wrong jurisdiction’s law. Rec., vol. VI, at 618-25. The failure by Burnett’s attorney to submit a more favorable instruction in writing thus did no more than provide the court with an additional reason for refusing an instruction it was not obliged to accept. The result of this failure, under our holding in Burnett, was that a correct self-defense instruction was given. We fail to see any lack of fundamental fairness to Burnett from being convicted under a standard we have already upheld as correct.
In short, in none of the three instances cited to us by Burnett on this appeal do we see convincing evidence of ineffectiveness on the part of counsel.
Affirmed.
. "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend, VI.
. The district court characterized the affidavit as "somewhat ambivalent” and relied instead on its conclusion that Burnett was forced to testify because his co-defendant Simpson "had taken the stand and effectively convicted his co-defendants. Tactically, the only hope Burnett had for exculpating himself was to testify.” Order, rec., vol. I, doc. 79 at 5. The court was mistaken, however, as to the order of testimony. Burnett testified before Simpson, and it was Simpson who was forced to take the stand. Rec., vol. VI, at 506-07, 536. This mistake is not crucial given our conclusion above. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. | What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. | [] | [
106
] | songer_const1 |
Allen N. BRUNWASSER, Appellant, v. PITTSBURGH NATIONAL BANK, a Corporation, and John S. Warwick.
No. 15270.
United States Court of Appeals Third Circuit.
Argued Oct. 21, 1965.
Decided Nov. 12, 1965.
Rehearing Denied Dec. 27, 1965.
Allen N. Brunwasser, Pittsburgh, Pa., pro se.
B. A. Karlowitz, Pittsburgh, Pa. (Patterson, Crawford, Arensberg & Dunn, Pittsburgh, Pa., on the brief), for appel-lee Pittsburgh Nat. Bank.
John M. Brant, Atty., Dept, of Justice, Washington, D. C. (John B. Jones, Jr., Acting Asst. Atty. Gen., Meyer Roth-wacks, Atty., Dept, of Justice, Washington, D. C., Gustave Diamond, U. S. Atty., James P. McKenna, Jr., Asst. U. S. Atty., on the brief), for John S. Warwick.
Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.
PER CURIAM.
The order of the United States District Court for the Western District of Pennsylvania of November 6, 1964 granting the motion for summary judgment on behalf of the Pittsburgh National Bank and John S. Warwick, defendants, and denying the motion for summary judgment of Allen N. Brunwasser, plaintiff, was proper and will be affirmed. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. | Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_procedur |
UNITED STATES v. NARDONE et al.
No. 412.
Circuit Court of Appeals, Second Circuit.
July 20, 1939.
Writ of Certiorari Granted Oct. 9, 1939.
See 60 S.Ct. 103, 84 L.Ed.-.
David V. Cahill, of New York City, for Frank Carmine Nardone.
Wegman & Climenko, of New York City (Jesse Climenko and Eugene J. Davidson, both of New York City, of counsel), for appellant Hoffman.
Louis Halle, of New York City, for Robert Gottfried.
John T. Cahill, U. S. Atty., of New York City (Lester C. Dunigan and Maxwell S. McKnight, Asst. U. S. Attys., both of New York City, of counsel), for the United States.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
The accused appeal from a judgment convicting them under an indictment in three counts two for smuggling and concealing alcohol, and a third for a conspiracy to do so. We affirmed an earlier conviction under the same indictment (United States v. Nardone, 2 Cir., 90 F.2d 630), but- the Supreme Court reversed our judgment (Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314) because of the admission of certain telephone “taps” which we thought competent, but they did not. Upon the present trial the same transactions were proved by what, generally speaking, was the same evidence, omitting the “taps”; and the main question raised bythese appeals is whether the judge improperly refused to allow the accused to examine the prosecution as to the uses to which it had put the information unlawfully gained; that is, as to what part of the evidence introduced was indirectly procured as a result of tapping the wires. We may refer to the statement of facts in our first opinion to show the general character of the crime charged and proved, and before discussing the main issue, we will take up some of the incidental objections raised. Nardone says that there was no evidence against him except the declarations of other parties to the venture, which did not become competent • until he had been independently connected. The principle is right, but its application is wrong. The prosecution directly proved that he was habitually in the company of those conspirators who were openly connected with the smuggling; and Geiger, a radio operator, swore that at the interview at which LeVeque, one of the conceded smugglers, was giving him his instructions, both Nardone and Hoffman were present; they would not have been, had they been merely disinterested observers. Another witness, McAdam, said that LeVeque introduced Nardone to him as his partner, and that the project was freely discussed before him. Apparently Nardone was one of the ringleaders. Gottfried also was repeatedly in the company of the smugglers at their customary places of meeting. His guilt was clearly enough shown by his ef< fort to destroy incriminating papers at the time of his arrest. He went to a water-closet off the bar where the arrests took place and threw into the flush-tank among other papers, the business cards of one, Mathiasen, and one Callahan. The reason for supposing that these came from Gottfried rather than from Nardone, who had earlier gone into the same water-closet, is that one, Mathiasen, swore that Gottfried had arranged with him to have Callahan, the owner of the Southern Sword, board that ship when she entered New York Harbor, loaded with alcohol on March 17, 1936, the date of the smuggling in the substantive counts. It is reasonable to conclude that these papers at least he tried to conceal, even if it was Nardone who threw away those relating to the places where the Isabelle H. and the Southern Sword were to meet in southern waters. Hoffman’s connection was also sufficiently established. He had paid for the gasoline to run the trucks that took the alcohol from the Pronton in December 1934 or January 1935, and he too was repeatedly seen in the company of the others. He objects that the conspiracy was laid as commencing on January 2, 1935, and that it was not shown that he paid for the gasoline after it began. That is irrelevant; his earlier complicity might not have been enough, had it not been followed by his later association with the smugglers; but when that was proved, it was reasonable to infer that it was in continuation of the original course of dealing, which took its color from what had gone before. There was plainly enough to support a verdict against all these men — certainly as to the conspiracy.
Objection was taken to the admission of several bits of testimony other than that procured by the “taps”. The prosecution was allowed to prove the landing at Keanslmrg, New Jersey, of some alcohol from the Pronto, which was interrupted by Treasury agents while it was in progress, and which developed into a shooting affray. This was altogether competent as in execution of the conspiracy. Several of the principal smugglers had been present at the scene and on the next day LeVeque was excitedly discussing it in the restaurant, where he had met several of the others, among them Nardone. The objection appears to be based upon the notion that the evidence was incompetent because it was likely to divert the jury’s mind from the crime to one of its distracting incidents. That is often true, but is never a reason for refusing to admit anything that goes to prove the issues.
The next objection was to secondary testimony by a sailor, Murphy, of a paper purporting to be a list of the owners of the Isabelle H. which contained the name of Nardone. Murphy, who was one of the crew of that vessel, swore that the wireless operator on board showed it to him in answer to his request for the names of those who were to pay him. If this had been mere gossip between the two men, it would not have been admissible; the fact that one conspirator tells another something relevant to the conspiracy does not alone make the declaration competent; the declaration must itself be an act in furtherance of the common object; mere conversation between conspirators is not that, any more than the declaration of an agent outside the scope of his duties. Here, hdwever, the declaration of the wireless operator was probably a part of his duty; foi he was employed to keep in touch with the owners ashore and advise them of any troubles that might arise. Ordinarily it is true, only the master would be authorized to answer the sailor’s question, but, considering the peculiar position of wireless operators on rum-runners, as Murphy swore to it, the situation was exceptional. The point is not free from doubt, but in any case no great harm is done by the testimony, as Nardone was amply connected without it.
There is left only the question of the effect of the unlawful “taps”. Did they taint all other evidence procured through them? Watson v. United States, 3 Cir., 6 F.2d 870. Did the burden rest upon the accused or the prosecution, to show to what the taint extended ? United States v. Kraus, D.C., 270 F. 578, 581. How should the inquiry be conducted? Was it too late to leave it until the trial? We do not think we need answer these questions because of the decision in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376, which, so far as we can see, still stands. The doctrine of that case is that telephone tapping is not of itself an unlawful search under the Fourth Amendment. If it were, then perhaps not only the actual talk overheard would be incompetent, but any evidence obtained by means of it; the court did not say as to that. In any case the same consequence does not attend the acquisition of evidence by.means of an ordinary.- crime; as to that,, the common-law still prevails, and the court will not look beyond the character of the evidence .itself. In Nardone v. United States, supra, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, the Supreme Court decided only that the Federal Communications Act, 47 U.S.C.A. § 151 et seq., for-bad divulging information derived from telephone “taps” in a court of law by government employees; all the discussion ranged upon whether the language of the act covered them. If it did, their testimony had been forbidden, and was of course incompetent; Congress had made it so. But Congress had not also made incompetent testimony which had become accessible by the use of unlawful “taps”, for to divulge that information was not to divulge an intercepted telephone talk. Indeed, the' officer might lock what he had heard in h'is breast, and yet use it effectively enough. He would of course be taking advantage of his crime, but that would not be enough; the testimony he secured would not itself be a. forbidden disclosure. So understood, the two cases are consistent, and the accused at bar had no right to a discovery of how the prosecution’s case was prepared.
On the other hand, if Olmstead v. United States, supra, should be treated as overruled the convictions may well have to be reversed. There is no practical way in which an accused can avail himself of his privilege — if it extends beyond the telephone talk itself — than by a complete discovery of how the Case against him has been prepared. In- substance the judge stopped the inquiry, for it did not help to give leave to the accused, as he did, to ex1amine as to any specific evidence they could point out. Evidence does not bear the ear-marks of its acquisition. One thing-leads to another, arid if the original taint pervades the last 'scrap 'of evidence eventually' found, .the accused will not get his' rights, short of a complete disclosure. We-hesitate to assume that so drastic a remedy follows upon a single misstep. If the inquiry must precede the trial, the prosecution will often be hopelessly handicapped by a.complete exposure of its case in advance. On the other hand, if it is left to the conclusion of the testimony, a mistrial will be necessary unless it turns out that the prosecution has not used the “taps” at all, or so little as not to count. These embarrassments may well result in qualifying the doctrine that all evidence procured through any unlawful search is incompetent; the incompetence may be limited to the very transaction — the document seized, the talk overheard. That, for example, is the doctrine as to confessions. Wig-more, § 859. The Supreme Court has never committed itself on the point, for in all its decisions except Silverthorne Lumber Company v. United States, 251 U. S. 385, 40 S.Ct. 182, 64 L.Ed. 319, the very document or other evidence seized was offered; and in that case, although the unlawfully seized papers were not offered, the prosecution was proposing to compel their production.
From what we have said it is apparent that we think that the result here is doubtful. Possibly Olmstead v. United States, supra, is no longer law; if it is not, possibly the extreme form of the doctrine will prevail, even at the cost of those difficulties in the prosecution of crime which we have mentioned. Against this chance we think that the accused should be allowed bail, pending application- for certiorari. When we denied bail originally, we had not had the chance to examine the record or to appreciate the doubts which have now appeared.
Judgment affirmed: appellants admitted to bail in case they apply for certiorari within- ten .days after this opinion is filed. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". | What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47? Answer with a number. | [] | [
151
] | songer_usc1sect |
UNITED STATES of America, Plaintiff-Appellee, v. Rafael SANDOVAL-VILLALVAZO, Defendant-Appellant.
No. 79-1396.
United States Court of Appeals, Ninth Circuit.
June 9, 1980.
Michael A. Brush, Santa Monica, Cal., for defendant-appellant.
Donald Etra, Asst. U.S. Atty., Los Ange-les, Cal., argued, for plaintiff-appellee; Andrea Sheridan Ordin, U.S. Atty., Los Ange-les, Cal., on brief.
Before MERRILL and FERGUSON, Circuit Judges, and SMITH , District Judge.
The Honorable Russell E. Smith, Senior Unied sitting by designation. States District Judge for the District of Montana,
RUSSELL E. SMITH, District Judge:
Sandoval-Villalvazo (Sandoval), who was convicted of violations of the narcotic laws, appeals.
Viewing the evidence in the light most favorable to the United States and drawing permissible inferences from the facts, the trial court could have found as follows:
On October 31,1978, codefendant Rosales, by telephone, advised Sepulveda, an undercover Drug Enforcement Administration (DEA) agent, that he had a source and could deliver approximately 15 ounces of heroin on the following day. On the next day Sepulveda and other agents went to a Skaggs parking lot in Santa Ana. Sepulve-da called Rosales, told him where he was, and then waited. At approximately 5:00 P. M. Rosales appeared at the parking lot in a red pickup driven by codefendant Velasquez. In the course of a conversation, Rosales indicated to Sepulveda that they weren’t having any success in finding the source — the owner of the merchandise. Rosales then pointed to Velasquez and said, “He is going to call him now.” Velasquez left. Sepulveda then took Rosales to the undercover truck and showed him the money with which the purchase would be made. Velasquez reappeared and said he couldn’t find “the man.” Rosales then said, “Don’t worry. I have talked to the guy. We are going to his house right now . . . He then asked Sepulveda to wait — to please not leave — and that something would be done that day. Velasquez and Rosales left in the red pickup, followed by Agent Alexander. Rosales was dropped at the Duran-go Restaurant, and Velasquez driving alone, followed by an agent, went to the 2500 block on West Pomona where he conversed with a driver of a parked gray-colored 1975 Grand Prix automobile. This was between 5:30 and 6:15 P. M.
At about the same time, 6:15 P. M., Se-pulveda called Rosales at the Durango Restaurant and was told that they were still having trouble finding “the man” but that Velasquez had gone looking for him. Rosales again repeated, “But don’t leave, please don’t leave. We are going to do something.” About 6:30 P. M. Sepulveda again called Rosales at the same restaurant and was advised that Velasquez had located “the man,” the owner of the merchandise. Between 7:20 and 7:30 P. M. Rosales and Velasquez returned to the parking lot. Se-pulveda asked Rosales if he had the heroin, and Rosales said, “No. The man will be bringing it with him.” Velasquez in the meantime went to the telephone. He came back, again left, and again came back and said that he couldn’t find “the man.” A short time later he left again and returned saying that the source was on his way. During this time Velasquez was highly agitated and was irritated by the failure of the source to appear. There was an argument between Rosales and Velasquez as to whether Velasquez should leave with the red pickup in search of the source and risk having the source miss the rendezvous in the absence of the pickup. Finally, however, Velasquez again left the parking lot, followed by the DEA agents.
In the course of these events Velasquez said to Rosales in the presence of the agents, “Your Campa Rafa, he has no compassion on those of us who are trying to make a buck or two . . . . Just because he has made his millions he doesn’t worry about us.” Sepulveda testified that he understood that “Campa Rafa” referred to Rosales’ good friend Rafael (Sandoval).
After Velasquez left, Rosales told Se-pulveda the source would arrive in a gray-colored Grand Prix.
Velasquez, again followed by Agent Alexander, went back to the 2500 block on West Pomona and arrived there shortly after 8:00 P. M. The Grand Prix was there. The driver of it, later identified as Sandoval, made a U-turn and closely followed the red pickup to the parking lot, once jumping a yellow light to keep up. They arrived in tandem about 8:30 P. M., and both parked. Velasquez then went to Sepulveda and told him that the heroin was in the pickup and that “the man — the owner” (nodding in the direction of Sandoval) wanted Rosales (by then arrested) and not Velasquez to deal with the buyer. At that time the agents pulled their guns and arrested Velasquez. The conversation preceding the arrest had taken about five minutes. During this time Agent Sepulveda was facing and observing the occupants of the Grand Prix. Sandoval sat in his car with the motor running and the lights on and watched Velasquez and Sepulveda talking; but when the arrest occurred he immediately put his car in reverse, screeched backward, and then sped forward in the direction of the two agents. He was stopped by a bullet fired into his tire by a DEA agent. Searching the red pickup, Sandoval found 252 grams of heroin. Bullets and a 45-calibre clip were found in the trunk of the Grand Prix. Sandoval, who had last worked in August 1978, when he had earned $600.00, had $300.00 in his possession.
Appellant urges that the statements of Rosales and Velasquez (undoubtedly prejudicial), which were made to the DEA agents in his absence, are hearsay. Statements made by one coconspirator during the course of and in furtherance of a conspiracy are admissible as vicarious admissions against another coconspirator. Fed.R. Evid. 801(d)(2)(E). It is required, however, that there be evidence, independent of the coconspirator’s statements, establishing the existence of the conspiracy and connecting a defendant with the conspiracy. The evidence proving the existence of the conspiracy was overwhelming.
With respect to Sandoval’s connection with the conspiracy, the facts, in our opinion, warrant the conclusion that the following occurred:
On November 1, 1978, during the period between 5:00 P. M., when Velasquez first appeared on the scene, and about 8:30 P. M., when he was arrested, Velasquez was totally absorbed in his effort to sell heroin. The trial judge could infer that during that period of Velasquez’ total absorption Sandoval first waited for him on Pomona Street and there he talked to him; by reason of some understanding between Velasquez and Sandoval, Sandoval again waited for Velasquez at the same place at a time about two hours later. On the second occasion Sandoval made a U-turn and purposefully followed Velasquez to the parking lot. At the parking lot he did not get out, as a shopper might have, but rather kept his motor running and his lights on. He observed Velasquez very closely and, when the arrest occurred, made a determined effort to escape. This, in our opinion, was proof, independent of the declarations of the coconspirators, connecting Sandoval with the conspiracy, and was sufficient to satisfy the standard of proof established by United States v. Dunn, 564 F.2d 348 (9th Cir. 1977).
We believe that the trial court was warranted in inferring that the statements made by the coconspirators, including the reference to “Campa Rafa,” were designed to keep the potential buyers from leaving the scene and were, therefore, in furtherance of the conspiracy. About 3V2 hours passed between the time Rosales first appeared at the parking lot and the arrest. Sepulveda commented to Rosales on their failure to find the source. A good part of the 3V2 hours was spent in calling and looking for the source and on some occasions Velasquez said he couldn’t find “the man.” Twice Rosales urged Sepulveda to wait and assured him that something would happen. The statement as to “Campa Rafa” did tend to assure the potential buyers that there was a real source and inferentially tended to explain the delay on the ground that the source was rich and could afford to keep people waiting.
It is urged that it was error to admit the statements of the coconspirators prior to the proof of Sandoval’s connection with the conspiracy. The order of proof was within the discretion of the trial court. United States v. Peterson, 549 F.2d 654 (9th Cir. 1977); United States v. Smith, 445 F.2d 861 (9th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971). The trial court did not abuse its discretion, and there was no error.
The argument that the evidence was insufficient to sustain the conviction is without merit. Once evidence sufficient to connect defendant with the conspiracy was properly admitted, the whole of the evidence was more than sufficient to convict.
Defendant sought to secure the testimony of one Sanchez, who was a passenger in the Grand Prix at the time it was in the Skaggs parking lot, and who was arrested along with the others. The trial initially was set for January 16,1979, and Sanchez was subpoenaed for this setting. He did not appear. When codefendant Velasquez moved for a continuance, due to the involvement of new counsel, Sandoval decided not to oppose the continuance only after ascertaining that Sanchez would be available as a witness after January 16th. The trial was then continued until February 27, 1979; Sanchez was not subpoenaed for this second setting, and no subpoena was issued when the witness did not appear on February 27th. On Thursday, March 1, 1979, the court granted defendant a continuance until Monday, March 5, so that he could obtain the witness. Again no subpoena was issued. Sanchez did not appear when the trial was resumed on March 5th. The court granted defendant’s request to be allowed to present the witness after the Government’s rebuttal if he had appeared by that time. When the Government declared it had no rebuttal the defendant requested a 10-minute recess to attempt to secure the attendance of this witness. The court denied this request and the Government made its closing argument. Then, for the first time, the court was advised that the witness had appeared. Defendant moved to reopen for the purpose of calling Sanchez. The motion was denied.
The rule is stated in United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978), quoting from Leino v. United States, 338 F.2d 154, 156 (10th Cir. 1964), as follows:
“When a continuance is sought to obtain witnesses, the accused must show who they are, what their testimony will be, that the testimony will be competent and relevant, that the witnesses can probably be obtained if the continuance is granted, and due diligence has been used to obtain their attendance on the day set for trial.”
The record demonstrates that the defendant was aware of the problem of securing the attendance of this particular witness and chose not to issue a subpoena for him. After recessing from Thursday until Monday for the sole purpose of giving defendant an opportunity to procure the attendance of Sanchez, the court did not abuse its discretion in refusing another continuance, albeit a short one, nor in refusing to reopen the case after the Government had made its closing argument.
The judgment is affirmed.
FERGUSON, Circuit Judge, dissenting: I must respectfully dissent.
The majority states correctly that out-of-court statements by one coconspirator during the course of and in furtherance of the conspiracy are admissible against another coconspirator where there is evidence independent of the coconspirator’s statements establishing the existence of the conspiracy and the defendant’s connection to it. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Weaver, 594 F.2d 1272 (9th Cir. 1979); United States v. Rosales, 584 F.2d 870 (9th Cir. 1978); Fed.R.Evidence, 801(d)(2)(E). While the majority concedes that Valasquez’s statement to Rosales was prejudicial, they fail to show that the statement was made “in furtherance of” the conspiracy.
The statement by Valasquez to Rosales was by far the most prejudicial of all the statements, yet it cannot in any way be considered a statement “in furtherance of” the conspiracy. It was, at best, idle conversation between two coconspirators. Mere conversation between conspirators or merely narrative declarations are not admissible as declarations in furtherance of the conspiracy. United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979); United States v. James, 510 F.2d 546 (5th Cir. 1975); United States v. Birnbaum, 337 F.2d 490 (2d Cir. 1964). For declarations to be admissible under the coconspirator exception, they must further the common objectives of the conspiracy. United States v. Eubanks, supra. As the Second Circuit noted in Birn-baum,
“[T]he fact that one conspirator tells another something relevant to the conspiracy does not alone make the declaration competent; the declaration must itself be an act in furtherance of the common object; mere conversation between conspirators is not that * * *.”
United States v. Birnbaum, supra, 337 F.2d at 495, citing United States v. Nardone, 106 F.2d 41, 43 (2d Cir.), rev’d on other grounds, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
The statement at issue here did not set in motion transactions that were an integral part of the distribution scheme, and did not assist the conspirators in achieving their objectives. See United States v. Eubanks, supra. Moreover, the statement was not made to keep either Rosales or the agents abreast of the conspirator’s activities, to induce continued participation, or to allay fears. See United States v. Eaglin, 571 F.2d 1069 (9th Cir. 1977); Salazar v. United States, 405 F.2d 74 (9th Cir. 1968).
In the absence of any evidence that Va-lasquez’s statement was a declaration “in furtherance of” the conspiracy, the statement should not have been admitted under the coconspirator exception to the hearsay rule. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
6
] | songer_genapel1 |
William T. OWENS, Appellant, v. B. F. OAKES, Appellee.
No. 76-1646.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 10, 1977.
Decided Jan. 10, 1978.
John E. Gehring, Walnut Cove, N. C., for appellant.
Jacob L. Safron, Sp. Deputy Atty. Gen. (Rufus L. Edmisten, Atty. Gen. of N. C., Raleigh, N. C., on brief), for appellee.
Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.
PER CURIAM:
A state prisoner appeals from the dismissal of his § 1983 action to recover damages on account of an assault and threats made against him by two guards at the prison where he was incarcerated, and by reason of the loss of certain prison privileges and good conduct time imposed as a result of prison disciplinary proceedings connected with the assault. In his prayer, he sought actual and pecuniary damages in the sum of $5,600,000, and injunctive relief vacating his “sentence” and requiring the issuance of warrants charging conspiracy against the defendant Oakes and Sergeant Carter and Guard Totten. The District Court dismissed the action without requiring a response from the defendant.
We affirm.
It is obvious on the face of the complaint that no action for assault or threats exists against the defendant Oakes, who neither participated nor acquiesced in such assault or threats under the plaintiff’s allegations. Rizzo v. Goode (1976) 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561. The two officers who the plaintiff alleges assaulted and threatened him were Sergeant Carter and Guard Totten. Neither is a defendant. So far as the loss of prison privileges and good conduct time are concerned, they were well within accepted limits of punishment which might be imposed after a prison disciplinary hearing under North Carolina procedure and the plaintiff makes no claim of any defect in the disciplinary proceedings themselves. Under those circumstances, the sentences imposed did not constitute a violation of constitutional rights. The demand for vacation of sentence is improper in a 1983 action. Moreover, even if we were to treat this as a habeas action, there is no allegation of any fact which would warrant the vacation of plaintiff’s sentence or of any punishment imposed as a consequence of the prison disciplinary hearing. Finally, the court was without authority to direct the issuance of arrest warrants as demanded. Hence, the District Court properly dismissed the action as without merit on its face.
AFFIRMED. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. | Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_procedur |
Wilton ESTERS, Appellant, v. UNITED STATES of America, Appellee.
No. 15987.
United States Court of Appeals Eighth Circuit.
Oct. 23, 1958.
See also 255 F.2d 63.
George F. Edwardes, Texarkana, Tex., submitted brief for appellant.
Charles W. Atkinson, U. S. Atty., Henry M. Britt, Asst. U. S. Atty., and Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., submitted brief for appellee.
Before JOHNSEN, VAN OOSTER-HOUT and MATTHES, Circuit Judges.
MATTHES, Circuit Judge.
A jury found defendant guilty of selling approximately 56 gallons of whiskey in unstamped containers, in violation of Title 26 U.S.C.A. § 5008(b); and of possessing certain items of personal property intended for use in violating the provisions of the federal internal revenue laws relating to intoxicating liquor, in violation of Title 26 U.S.C.A. § 5686 (b). Fi'om the judgment imposing sentence, the defendant has appealed.
Since the factual background leading to the indictment is detailed in the opinion of the trial court in denying defendant’s application for bail, pending appeal, see United States v. Esters, D.C., 161 F.Supp. 203, we dispense with again setting out in full the facts developed on trial. For the purpose of disposing of the points presented by appellant, it will suffice to make this summary of the material evidence: On February 22, 1956, the Sheriff of LaFayette County, Arkansas, and a member of the Arkansas State Police, along with other officers, observed a moonshine whiskey still in operation on property formerly owned by appellant’s father-in-law, and which at that time was owned by appellant and his wife, or by his wife. The officers kept the still under surveillance during the afternoon of that day, and, upon returning that night, they found 56 one-gallon containers of moonshine whiskey at the still site; that early in the morning of February 23, 1956, the officers observed Clarence Robinson and an unidentified person load the 56 one-gallon containers of moonshine whiskey in a GMC pickup truck; that shortly after the arrest of Clarence Robinson, appellant drove his Willys pickup truck via the only road leading into the area, and within 100 to 120 feet of the still. Upon examining appellant’s truck, the officers found that it contained 600 pounds of cane sugar, a 100 pound sack of bran, 8 five-gallon cans of gasoline, 70 empty one-gallon jugs and a siphon hose. According to the testimony of the sheriff, cane sugar and bran are ingredients adapted to the manufacture of illicit liquor.
The sheriff testified that at the scene ke “ * •» * asked Mr. Esters why he continued to deal with this type of business, and he (the defendant) said that he was in ill health and wasn’t able to work and it wasn’t too much work involved around that still.” The patrol officer testified that in addition to the above admission, appellant also stated “-x- * •* (T)here was only one thing he hated, he said he had a son, that he hated to have him learn and know about this, him being engaged in this business.”
Through Clarence Robinson, the Government developed that Robinson had purchased the 56 gallons of moonshine whiskey found in his truck from appellant, and had agreed to pay appellant $5 a gallon therefor; that on the morning of February 23, Robinson was given directions by appellant as to the road which would lead to where the whiskey was located.
Appellant challenges the sufficiency of the evidence to sustain the conviction. It would appear that this contention is predicated upon the belief that, absent the testimony of appellant’s accomplice, Clarence Robinson, there is no factual basis upon which to rest the verdict. And from this premise the argument is advanced that the uncorroborated testimony of an accomplice is insufficient to furnish a legal basis for a conviction. This is an erroneous concept of the law. For, as this court said in Haakinson v. United States, 8 Cir., 238 F.2d 775, at page 779:
“Even if the jury may have regarded Chesling as an accomplice, that fact would not be of any help to appellant on this appeal, for the testimony of an accomplice, though uncorroborated, can legally constitute a sufficient basis for a conviction, if it is not otherwise incredible or unsubstantial on its face. Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442; Harrington v. United States, 8 Cir., 267 F. 97, 103; Greenberg v. United States, 8 Cir., 297 F. 45, 47; Webb v. United States, 8 Cir., 8 F.2d 145, 146; Rossi v. United States, 8 Cir., 9 F.2d 362, 366; Johns v. United States, 10 Cir., 227 F.2d 374, 375; McClanahan v. United States, 5 Cir., 230 F.2d 919, 922.”
Moreover, there were facts, circumstances and incidents developed in the trial, which properly could have been regarded by the jury as corroborative of Robinson’s version of appellant’s connection with the offenses. As we have seen, appellant appeared at the scene of the illegal operation on the morning when the attempt was made to convey the moonshine whiskey from the premises; he possessed supplies and equipment adapted for use in distilling the same type of whiskey which Robinson had purchased from him; and at the scene he made voluntary and damaging admissions. In this state of the record we see no room for the contention that the case should not have been submitted to the jury.
The appellant also contends that the judgment cannot stand because the court made comments upon the evidence and the weight thereof which were prejudicial and deprived him of a fair trial. The assignment springs from the testimony of J. H. Porterfield, a member of the Arkansas State Police, and the remarks of the court in connection therewith. The following presents a full picture of the incident complained of.
(By Witness Porterfield) “The question was asked, and I can’t remember whether I asked or if Sheriff Baker asked it, but I remember the answer, that he was in bad health and had lots of doctor bills and was not able to do heavy work and in that business he didn’t have to do heavy work and that was the way he was making his livelihood.
“The Court: What business— you say that business?
“The Witness: In the liquor business. We were referring to this liquor business. I spoke to Mr. Esters in a friendly friendship tone of voice. I have known Mr. Esters a long time and I asked him why he was still engaged in this business, and I believe he answered the second time about the doctor bills; he said there was only one thing he hated, he said he had a son, that he hated to have him learn and know about this, him being engaged in this business. One other remark I recall, he said: T guess I will have to go down and spend some time with my brother-in-law.’
“By Mr. Britt: Who is his brother-in-law, if you know? A. A. P. Powell.
“The Court: Powell?
“The Witness: Yes, sir.
“By Mr. Britt: Will you explain that; did Mr. Esters explain that to you?
“The Witness: Well, in our conversation — I was one of the arresting officers in the Powell case.
“Mr. Shaver: I object to that, if the Court please.
“The Court: Well, he said he might have to spend some time with Powell — do you know where Powell was?
“The Witness: Yes, sir.
“The Court: Where was he ?
“The Witness: He was out here at the Correctional Institute out here.
“Mr. Shaver: I certainly object to that.
“The Court: Overruled.
“Mr. Shaver: Well, save my exception.
“The Court: Now, for the sake of the record, he was questioning, as I understand, Mr. Porterfield was questioning — this defendant as to why he was engaged in the liquor business at that particular still. Is that it, Mr. Porterfield?
“The Witness: Yes, sir.
“The Court: And he gave his reasons as to why he was, and he said he reckoned he would have to spend some time with his brother-in-law, and then his brother-in-law, it seems, was in the Federal Penitentiary. I think that—
“Mr. Shaver: That is what I object to.
“The Court: I think that is perfectly competent, for it is in the nature of an admission on his part.
“Mr. Shaver: Because A. P. Powell was in the Federal Correctional Institute would not be any evidence as to Wilton Esters.
“The Court: No, but—
“By Mr. Shaver: And it has a tendency to prejudice the jury.
“The Court: But it is evidence on Esters’ part that he was engaged in this business; it is some evidence; it can be explained possibly.
"By Mr. Shaver: You mean it is some evidence — that A. P. Powell was in an institution is some evidence—
“The Court: Oh, no, but what I am getting at, the man states there, according to Mr. Porterfield and his recollection, he is being questioned about being in this business and he is explaining why he is in that business, and he goes on and says I guess I will have to go down and spend some time with my brother-in-law. I think that is competent.
“Mr. Shaver: Save my exceptions.”
Appellant places emphasis on the statement, “But it is evidence on Esters’ part that he was engaged in this business; it is some evidence; it can be explained possibly,” and urges that it had the effect of placing a greater burden upon defendant than imposed by law, especially since the remark was made prior to the time defendant had testified. To our mind this contention is tenuous and without substance. The statement of this court, appearing in Batsell v. United States, 217 F.2d 257, 262, embodying the apposite principle of law, is apropos to the instant question. There we said:
“Complaint is also made of the trial court’s questions put to the defendant-witness Qualls with reference to the reputation of the appellant Batsell on the north side in Minneapolis. We find nothing improper in the Court’s questions. In the trial of any case, the judge has the responsibility of seeing that justice shall prevail and to that end may question the witnesses and may even express his opinion with reference to their testimony, provided, of course, that he makes it clear to the jury that they are the ultimate determiners of the facts in question. See Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Fischer v. United States, 10 Cir., 1954, 212 F.2d 441, 444; Griffin v. United States, 83 U.S.App.D.C. 20, 164 F.2d 903, certiorari denied 333 U.S. 857, 68 S.Ct. 727, 92 L.Ed. 1137.”
See also Goldstein v. United States, 8 Cir., 63 F.2d 609, and Costello v. United States, 8 Cir., 255 F.2d 389, certiorari denied 79 S.Ct. 52. When the comment complained of is viewed in context, we are of the opinion that it was not intended or calculated to disparage the appellant in the eyes of the jury, and we are unwilling to hold that the alleged offensive remark reveals prejudice on the part of the trial judge toward appellant. Indeed, from a careful study of the entire record, it is apparent that the trial judge conscientiously endeavored to preside over the trial with fairness and impartiality.
This brings us to consideration of the assignment that prejudicial error resulted from the failure of the court to instruct the jury that Clarence Robinson was an accomplice and that his testimony was to be viewed and considered by the jury with extreme caution. Again, we are compelled to hold the contention is without merit. It should be observed in connection with this point that appellant did not see fit to request the court to give such a cautionary instruction, neither was objection made nor exception taken to the failure of the court to specifically instruct on this question. The rule is well settled that, “(i)n the absence of a request for charge, a reversal is justified only if the failure to instruct constitutes ‘a basic and highly prejudicial error.’ United States v. Levy, 3 Cir., 1946, 153 F.2d 995, 998.” United States v. Gordon, 3 Cir., 242 F.2d 122, 126, certiorari denied 354 U.S. 921, 77 S.Ct. 1378, 1 L.Ed.2d 1436. In Gicinto v. United States, 8 Cir., 212 F.2d 8, at page 12, certiorari denied 348 U.S. 884, 75 S.Ct. 125, 99 L.Ed. 695, this pronouncement appears: “It is the long-established rule in the federal courts that 'Failure to give instructions is not reversible, as matter of right, in absence of proper request or exception.’ ” See also Pereira v. United States, 5 Cir., 202 F.2d 830, 835-836, affirmed on other grounds 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; Obery v. United States, 95 U.S.App.D.C. 28, 217 F.2d 860, 861, certiorari denied. 349 U.S. 923, 75 S.Ct. 665, 99 L.Ed. 1255.
Furthermore, we do not understand that an absolute and mandatory duty is imposed upon the court to advise the jury by instruction that they should consider the testimony of an uncorroborated accomplice with caution. See Caminetti v. United States, 242 U.S. 470, at page 495, 37 S.Ct. 192, at page 198, 61 L.Ed. 442, where the Court, in passing on a similar contention stated: “In Holmgren v. United States, 217 U.S. 509, [30 S.Ct. 588, 54 L.Ed. 861] this court refused to reverse a judgment for failure to give an instruction of this general character, while saying that it was the better practice for courts to caution juries against too much reliance upon the testimony of accomplices and to require corroborating testimony before giving credence to such evidence. While this is so, there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them.” Compare also Papadakis v. United States, 9 Cir., 208 F.2d 945, 954 and Cowell v. United States, 9 Cir., 259 F.2d 660.
Not only is appellant’s contention rendered impotent by the foregoing rules of procedure, but the factual situation obviated the necessity for giving the cautionary instruction. As previously demonstrated, there were facts established by probative evidence which the jury had the right to consider as corroborative of Robinson’s testimony.
The judgment is affirmed. | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". | Did the court conclude that the jury instructions were improper? | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_juryinst |
KFKB BROADCASTING ASS'N, Inc., v. FEDERAL RADIO COMMISSION.
No. 5240.
Court of Appeals of District of Columbia.
Argued Jan. 6, 1931.
Decided Feb. 2, 1931.
Geo. E. Strong, of Washington, D. C., for appellant.
Thad H. Brown, Arthur W. Seharfeld, and D. M. Patrick, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
ROBB, Associate Justice.
Appeal from a decision, of the Federal. Radio Commission denying appellant’s application for the renewal of its station license.
The station is located at Milford, Kan., is operating on a frequency of 1,050 kilocycles with 5,000 watts power, and is known by the call letters.KFKB. The station was first licensed by the Secretary of Commerce on September 20, 1923, in the name of the Brinkley-Jones Hospital Association, and intermittently operated until June 3,1925. On October 23, 1926, it was relicensed to Dr. J. R. Brinkley with the same call letters and continued to be so licensed until November 26, 1929, when an assignment was made to appellant corporation.
On March 20, 1930, appellant filed its application for renewal of license (Radio Act of 1927, c. 169, 44 Stat. 1162, U. S. C. Supp. 3, tit. 47, § 81, et seq. [47 USCA § 81 et seq.]). The commission, failing to find that public interest, convenience, or necessity would be served thereby, accorded appellant opportunity to be heard. Hearings were had on May 21, 22, and 23,1930, at which appellant appeared by counsel and introduced evidence on the question whether the granting of the application would be in the public interest, convenience, or necessity. Evidence also was introduced in behalf of the commission. Upon consideration of the evidence and arguments, the commission found that public interest, convenience, or necessity would not be served by granting the application and, therefore, ordered that it be denied, effective June 13, 1930. A stay order was allowed by this court, and appellant has since been operating thereunder.
The evidence tends to show that Dr. J. R. Brinkley established Station KFKB, the Brinkley Hospital, and the Brinkley Pharmaceutical Association, and that these institutions are operated in a common interest. White the record shows that only 3 of the 1,000 shares of the capital stock of appellant are in Dr. Brinkley’s name and that his wife owns 381 shares, it is quite apparent that the doctor actually dictates and controls the policy of the station. The Brinkley Hospital, located at Milford, is advertised over Station KFKB. For this advertising the hospital pays the station from $5,000 to $7,000 per month.
The Brinkley Pharmaceutical Association, formed by Dr. Brinkley, is composed of druggists who dispense to the public medical preparations prepared according to formulas of Dr. Brinkley and known to the public only by numerical designations. Members of the association pay a fee upon each sale of certain of those preparations. The amounts thus received are paid the station, presumably for advertising the preparations. It appears that the income of the station for the period February, March, and April, 1930, was as follows:
Brinkley Pharmaceutical Association ...................... $27,856.40
Brinkley Hospital............. 6,500.00
All other sources.............. 3,544.93
Total..............!.....$37,901.33
Dr. Brinkley personally broadcasts during three one-half hour periods daily over the station, the broadcast being referred to as the “medical question box,” and is devoted to diagnosing and prescribing treatment of eases from symptoms given in letters addressed either to Dr. Brinkley or to the station. Patients are not known to the doctor except by means of their letters, each letter containing a code signature, which is used in making answer through the broadcasting station. The doctor usually advises that the writer of the letter is suffering from a certain ailment, and recommends the procurement from one of the members of the Brinkley Pharmaceutical Association, of one or more of Dr. Brinkley’s prescriptions, designated by numbers. In Dr. Brinkley’s broadcast for April 1, 1930, presumably representative of all, he prescribed for forty-four different patients and in all, save ten, he advised the procurement of from one to four of his own prescriptions. We reproduce two as typical:
“Here’s one from Tillie. She says she had an operation, had some trouble 10 years ago. I think the operation was unnecessary) and it isn’t very good sense to have an ovary removed with the expectation of motherhood resulting therefrom. My advice to you is to use Women’s Tonic No. 50, 67, and 61. This combination will do for you what you desire if any combination will, after three months persistent use.
“Sunflower State, from Dresden Kans. Probably he has gall stones. No, I don’t moan that, I mean kidney stones. My advice to you is to put him on Prescription No. 80 and 50 for men, also 64. I think that he will be a whole lot better. Also drink a lot of water.”
In its “Facts and Grounds for Decision,” the commission held “that the practice of a physician’s prescribing treatment for a patient whom he has never seen, and bases his diagnosis upon what symptoms may be recited by the patient in a letter addressed to him, is inimical to the public health and safety, and for that reason is not in the publie interest”; that “the testimony in this case shows conclusively that the operation of Station KFKB is conducted only in the personal interest of Dr. John R. Brinkley. White it is to be expected that a licensee of a radio broadcasting station will receive some remuneration for serving the public with radio programs, at the same time the interest of the listening public is paramount, and may not be subordinated to the interests of the station licensee.”
This being an application for the renewal of a license, the burden is upon the ap-plieant to establish that such renewal would be in the public interest, convenience, or necessity (Technical Radio Lab. v. Fed. Radio Comm., 59 App. D. C. 125, 36 F.(2d) 111, 114, 66 A. L. R. 1355; Campbell v. Galeno Chem. Co., 281 U. S. 599, 609, 50 S. Ct. 412, 74 L. Ed. 1063), and the court will sustain the findings of fact of the commission unless “manifestly against the evidence.” Ansley v. Fed. Radio Comm., 60 App. D. C. 19, 46 F.(2d) 600.
We have held'that the business of broadcasting, being a species of interstate commerce, is subject to the reasonable, regulation of Congress. Technical Radio Lab. v. Fed. Radio Comm., 59 App. D. C. 125, 36 F.(2d) 111, 66 A. L. R. 1355; City of New York v. Fed. Radio Comm., 59 App. D. C. 129, 36 F.(2d) 115; Chicago Federation of Labor v. Fed. Radio Comm., 59 App. D. C. 333, 41 F. (2d) 422. It is apparent, we think, that the business is impressed with a public interest and that, because the number of available broadcasting frequencies is limited, the commission is necessarily called upon to consider the character and quality of the service to be rendered. In considering an application for a renewal of the license, an important consideration is the past conduct of the applicant, for “by their fruits ye shall know them.” Matt. VII :20. Especially is this true in a case like the present, where the evidence clearly justifies the conclusion that the future conduct of the station will not differ from the past.
In its Second Annual Eeport (1928), p. 169, the commission cautioned broadcasters “who consume much of the valuable time allotted to them under their licenses in matters of a distinctly private nature which are not only uninteresting, but also distasteful to the listening public.” When Congress provided that the question whether a license should be issued or renewed should be dependent upon a finding of public interest, convenience, or necessity, it very evidently had in mind that broadcasting should not be a mere adjunct of a particular business but should be of a public character. Obviously, there is no room in the broadcast band fo.r every business or sehool of thought.
In the present ease, while the evidence shows that much of appellant’s programs is entertaining and unobjectionable in character, the finding of the commission that the station “is conducted only in the personal interest of Dr. John E. Brinkley” is not “manifestly against the evidence.” We are further of the view that there is substantial evidence in- support of the finding of the Commission that the “medical question boy” as conducted by Dr. Brinkley “is inimical to the public health and safety, and for that reason _ is not in the public interest.”
Appellant contends that the attitude of , the commission amounts to a censorship of the station contrary to the provisions of section 29 of the Eadio Act of 1927 (47 USCA § 109). This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant’s-broadcasting matter to scrutiny prior to its release.. In considering the question whether the publie interest, convenience, or necessity will be served by a renewal of appellant’s license, the commission has merely exercised its undoubted right to take note of appellant’s past conduct, which is not censorship.
As already indicated, Congress has imposed upon the commission the administrative function of determining whether or not a station license should be renewed, and the commission in the present ease has in the exercise of judgment and discretion ruled against the applicant. We are asked upon the record and evidence before the commission to substitute our judgment and discretion for that of the commission. While section 16 of the Radio Act of 1927 (44 Stat. 1162, 1169, U. S. C., Supp. 3, tit. 47, § 96) authorized an appeal to this court, we do not think -it was the intent of Congress that we should disturb the action of the commission in a ease like the present. Support is found for this view in the Act of July 1, 1930 (46 Stat. 844 [47 USCA § 96]), amending section 16 of the 1927 Act. The amendment specifically provides “that the review by the court shall be limited to questions of law and that findings of fact by the commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the commission are arbitrary or capricious.” As to the interpretation that should be placed upon such provision, see Ma-King v. Blair, 271 U. S. 479, 483, 46 S. Ct. 544, 70 L. Ed. 1046.
We are therefore constrained, upon a careful review of the record, to affirm the decision.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". | This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? | [
"local",
"neither local nor national",
"national or multi-national",
"not ascertained"
] | [
3
] | songer_appel1_1_2 |
DELTA ENGINEERING CORPORATION and the Travelers Insurance Company, Appellants, v. Joseph Ruby SCOTT et al., Appellees. COLUMBIAN ROPE COMPANY, Appellant, v. Joseph Ruby SCOTT, Appellee. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Joseph Ruby SCOTT, Appellee. Joseph Ruby SCOTT, Appellant, v. DELTA ENGINEERING CORPORATION et al., Appellees.
No. 19861.
United States Court of Appeals Fifth Circuit.
Jan. 2, 1964.
For original opinion see 5 Cir., 322 F.2d 11.
Robert B. Acomb, Jr., George Denegre, A. R. Christovich, Charles Kohlmeyer, Jr., Thomas W. Thorne, Jr., New Orleans, La., for appellants.
Donald V. Organ, Christopher Tompkins, New Orleans, La., for appellees.
Before CAMERON and BROWN, Circuit Judges, and WHITEHURST, District Judge.
PER CURIAM.
The several petitions for rehearing are denied. So far as the contention by Delta Engineering Corporation (The Travelers Insurance Company) that payment to the plaintiff Scott of the judgment due by them to him and now affirmed by our opinion will render ineffectual their possible right to recover contribution or the like from Columbian Rope Company, the District Court on remand for the limited retrial shall be free to stay execution on that judgment on such terms and suitable security as required in its discretion to assure ulti- ' mate payment of the full amount of the judgment by Delta-Travelers to Scott with interest and costs. If, to preserve possible rights by Delta-Travelers against Columbian the plaintiff Scott is to be delayed in enjoying the fruits of the judgment heretofore affirmed in his favor, he is entitled to full security and protection.
Denied. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
2
] | songer_appbus |
Richard GOODWIN et al., Plaintiffs-Appellees, v. Russell G. OSWALD, Commissioner of Correctional Services of the State of New York, et al., Defendants-Appellants.
No. 776, Docket 72-1307.
United States Court of Appeals, Second Circuit.
Argued April 13, 1972.
Decided June 19, 1972.
Judith A. Gordon, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for defendants-appellants.
Barbara A. Shapiro, New York City (William E. Hellerstein, The Legal Aid Society, Richard A. Greenberg, New York City, of counsel), for plaintiffs-ap-pellees.
Jack Greenberg and Stanley A. Bass, New York City, on the brief for NAACP Legal Defense and Educational Fund, Inc., and National Office for the Rights of the Indigent as amici curiae.
Before FRIENDLY, Chief Judge, and SMITH and OAKES, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This appeal raises interesting and difficult questions concerning the balance to be struck between prisoners’ sixth and fourteenth amendment rights and the need to allow prison officials discretion to exclude communications they feel will endanger their institutions. The United States District Court for the Southern District of New York, Charles Tenney, Judge, granted a preliminary injunction to plaintiffs, prisoner-members of the Prisoners’ Labor Union at Green Haven (“the union”) holding that they must be allowed to receive a letter from their attorneys containing legal advice about the formation of the union and efforts to have it officially certified, and all letters from the Legal Aid Society, in accordance with the provisions of Administrative Bulletin No. 20 (January 31, 1972) of the Department of Correctional Services. The order was not given effect, as this court granted a stay and expedited the appeal of the Commissioner of Corrections and the Superintendent of Green Haven, who claim that the court below erred in his estimate of the effect the letters would have and abused his discretion in granting preliminary relief and allowing the letters to enter the allegedly tense prison. We find error only in the extent of relief granted and modify and affirm the grant of preliminary injunction.
The case presents three basic issues: (1) whether the court was incorrect in finding, on constitutional grounds, that the officials were unjustified in withholding the letters; (2) whether it was proper to require obedience to Administrative Regulation No. 20, which sets a standard for censorship of legal mail that is more lenient than constitutionally required; and (3) whether the conditions which justify issuance of a preliminary injunction exist. We are not faced on this appeal with the question of the constitutionality or legality of unions or other organizations of prisoners, but only with the right of prisoners to receive communications from counsel whose advice has been sought on that question. We do not therefore intimate any views as to the legality, desirability, dangers or possible benefits of any type of prisoner collective bargaining on prison working conditions or of any other organized representation of prisoners.
The inmates at Green Haven, a maximum security institution at Stormville, New York, holding 1900-2000 men, began during the summer of 1971 to organize a labor union to act on their behalf in connection with conditions of labor in the prison. They contacted the Legal Aid Society’s Prisoners’ Rights Project for assistance in this endeavor. The Project was told, when it inquired of the Commissioner, that prisoners are not in an employee-employer relationship with the Department of Corrections and that the Department would not recognize any inmate labor organization because “it would be contrary to the best interests of the Department and of the general welfare of the prison population.” In December, 1971, the Project received the signatures of approximately 800 inmates requesting the attorneys to draft a union constitution and represent them in union-related matters. The constitution was sent to the inmates; though it may have been signed and become effective, by its own terms, the union has thus far taken no action. Legal Aid also provided authorization forms to sign up new union members.
The communication which is the subject of this suit was sent by Legal Aid during the week of February 7, 1972 to all those inmates who had signed up as members of the union but to no one else. In the packet sent to each inmate the main document was a seven-page letter detailing legal steps being taken on behalf of the union and giving legal advice on a number of union matters. A copy of the letter to the Commissioner requesting recognition of the union, the union constitution, and press releases issued February 7 announcing the formation of the union and commitments of support for it by prominent individuals, were included. On February 9, the Commissioner told Legal Aid that he would deny recognition to the union; a week later he informed the Society that he had not and would not deliver the February 7 letters to the 980 addressees. Apparently, fifteen of the letters had arrived unsealed and were examined by prison officials; on the basis of this scrutiny the authorities had decided to withhold the letters. The next day, the 18th, Legal Aid filed a petition with the Public Employees Relations Board requesting certification of the union as collective bargaining agent for the prisoners. The present complaint was filed on February 23; the action was brought under 42 U.S.C. § 1983 and its jurisdictional complement 28 U.S.C. § 1343, and plaintiffs requested a preliminary injunction ordering the defendants to deliver the communications from their attorneys.
Affidavits were submitted to the court by both sides; neither requested an evidentiary hearing. The defendants argued that their action was justified because the formation of a union was against prison policy and would jeopardize their control of the institution. They interpreted the letter as a declaration that the union was “operational” and as an incitement to “concerted activity” that would present a clear and present danger of disruption to the institution. They anticipated that if the letters were delivered, and they were then obliged to burst the balloon of rising expectations by proscribing union activity, they would subject themselves to danger.
The court found that the letter was a communication of legal advice, not a call to illegal action, and that its optimism about the formation of a union was carefully hedged with cautionary instructions to obey all prison rules in the interim, which might be lengthy, before the union was certified and could negotiate with prison officials. The court held that the letter came within the “legal mail” classification of Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, sub nom. Oswald, Correction Commissioner et al. v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), and neither violated the standards applicable to such mail nor presented a clear and present danger to the security of the institution. The court felt that the resort to legal methods of challenging the prison’s refusal to countenance unions and of improving the prisoners’ status was a constructive and rehabilitative rather than a dangerous move. The withholding also violated the Commissioner’s own Administrative Regulation No. 20, and the court ordered that rule followed in the future. He held the class of all inmates proper under Rule 23(b) (2). He was not entirely clear on the issues of irreparable injury and balance of hardships. The only issues for this court are whether the court made clearly erroneous findings of fact or abused his discretion in ordering the warden to deliver the letters from Legal Aid and to abide by his mail regulation in the future. The court’s easy characterization of the Legal Aid letter as pure legal advice may be open to question, as it was somewhat more ambiguous than that, but we hold that he was quite correct in his assessment of the appropriate legal standard and his application of it to the facts of the case.
The main letter from the Prisoners’ Rights Project attorneys is addressed to “Dear Union Member” and begins by remarking on the public announcement of that day and by noting the possibility of affiliation with already existing unions. The letter goes on: “Now that your union is ready to function we have been requested to provide further legal advice as to the role it can play, how it will operate, and how to deal with problems that may arise.” The letter continues with a recitation of efforts to induce the Commissioner to recognize the union as the collective bargaining agent for the inmates; if he denies it recognition, the attorneys state that they will file a petition with the Public Employees Relations Board (PERB). The letter in general and the above sentences in particular had a positive tone about the probable outcome of the PERB proceeding and the chance that the union would be functional in the relatively near future that undoubtedly seemed unwarranted and threatening to the state. The letter advised inmates that it was crucial that they obey all institutional rules during the certification process before PERB and, if necessary, in the courts.
The letter goes on to describe the issues the union would treat were it certified ; certain of these paragraphs have a note, once again, of confident assumption that the recognition of the union is an event whose occurrence is quite certain rather than merely marginally possible. Most of the sentences, however, use the verb “would” rather than “will,” thus keeping the tone conditional. The letter mentions the fact that the prison officials have not objected to solicitation of union members over the preceding months and presents the Project’s view on why a union would serve the interests of the inmates more effectively than a liaison committee serving at the discretion of the administration. The letter ends with a warning that should the administration resist the union, the process of obtaining recognition will be long and arduous; the belief expressed is that the union “will eventually succeed” rather than that it will begin negotiations tomorrow.
The constitution sets forth as union goals the advancement of the economic, political, social and cultural interests of the prisoners, the adoption of laws increasing the welfare of prisoners, and the equalization of the rights of prison labor and free labor by expansion and recognition of the former. There are clauses on dues, meetings, and other routine matters. The press releases raise no problems.
Before discussing the specific factors operative in this situation, we review the constitutional context in which the claims of the plaintiffs arise. As convicted prisoners, they are denied the full panoply of constitutional rights which citizens normally enjoy. But among the basic rights which they do retain in prison are certain of the first amendment freedoms and the sixth and fourteenth amendment right of access to the courts. It is the latter right which is principally involved here, although there are first amendment overtones, recognized by the lower court, in this situation. The right of a prisoner to access to the courts was first articulated by the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Since then, the boundaries of the right has been further delineated; a necessary concomitant to the right of access is the right to assistance of counsel. See, e. g., McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed. 2d 718 (1969); Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.), aff’d sub nom. Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L.Ed.2d 142 (1971). In turn, the provision of effective assistance requires the opportunity for confidential communication between attorney and client on pending litigation and related legal issues. Coleman v. Peyton, 362 F.2d 905 (4th Cir.), cert. denied, 385 U.S. 905, 87 S.Ct. 216, 17 L.Ed.2d 135 (1966); McCloskey v. Maryland, 337 F.2d 72 (4th Cir. 1966); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y. 1970); Fulwood v. Clemmer, 206 F. Supp. 370 (D.D.C.1962). This court and others have recognized the primary importance of mail in this attorney-client relationship and have granted it protection from interference by prison staff in all but extraordinary circumstances. Sostre v. McGinnis, supra; Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); McDonough v. Director of Patuxent, 429 F.2d 1189 (4th Cir. 1970); Smith v. Robbins, 328 F.Supp. 162 (D.Me.1971), aff’d 454 F.2d 696 (1st Cir. 1972); Marsh v. Moore, supra; Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I. 1970). See Corby v. Conboy, 457 F.2d 251 (2d Cir. 1972); Wright v. McMann, 460 F.2d 126 (2d Cir. 1972). Cf. Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952).
The standard which applies to attorney-client mail in this circuit was formulated in Sostre v. McGinnis, supra; in distinction to other correspondence, which may be read and censored for material which inhibits or threatens rehabilitation, security, or other professed goals of incarceration, mail to or from attorneys is rarely proscribed:
The generous scope of discretion accorded prison authorities also heightens the importance of permitting free and uninhibited access by prisoners to both administrative and judicial forums for the purpose of seeking redress of grievances against state officers. The importance of these rights of access suggests the need for guidelines both generous and specific enough to afford protection against the reality or the chilling threat of administrative infringement. Thus, we do not believe it would unnecessarily hamper prison administration to forbid prison authorities to delete material from, withhold or refuse to mail a communication between an inmate and his attorney (citations omitted) or any court . . . unless it can be demonstrated that a prisoner has clearly abused his rights of access. [I]f a communication is properly intended to advance a prisoner’s effort to secure redress for alleged abuses, no interest would justify deleting material thought by prison authorities to be irrelevant to the prisoner’s complaint. The chance that an official will improperly substitute his judgment for that of the correspondent then preponderates. For similar reasons, prison officials may not withhold . . . material from otherwise protected communications merely because they believe the allegations to be repetitious, false, or malicious. [442 F.2d at 200-201]
The state argues that under any of the relevant tests the letter was properly excluded from the prison. Citing Roberts v. Pepersack, 256 F.Supp. 415 (D. Md.1966), which held that it was permissible to punish an inmate who had called for a demonstration against prison conditions, and McCloskey v. Maryland, 337 F.2d 72 (4th Cir. 1964), in which similar restriction was held permissible even though the advocacy was not a call to action but merely a dissemination of political or social views, the defendants urge that this is an analogous situation in which the first and sixth amendment rights of the inmates may be curtailed in order to prevent an incitement to concerted effort to evade institutional rules. Nor, defendants claim, can this threatening behavior hide behind a purported attorney-client relationship when in essence it is not bona fide legal advice. See Sostre v. McGinnis, 442 F.2d at 200; McCloskey v. Maryland, 337 F.2d at 74.
The answer to the question of which category the letter from Legal Aid falls into — whether it urged illegal concerted action, was merely correspondence by interested persons, or was communication to clients giving legal advice on actions intended to challenge and improve the conditions of confinement-— seems to us reasonably clear, although because prison unions are very new we find no cases directly on point. Most of the cases deal with representation in criminal cases, on habeas corpus petitions, or in civil rights actions, under 42 U.S.C. § 1983. The attorneys here might be said to be taking action analogous, though on a larger scale, to a section 1983 action, trying to establish a right, possibly derived from the first and thirteenth amendments, for the prisoners to associate and try to lessen the harshness of prison work conditions and contribute to the success of training and rehabilitation programs. Nor does the fact that the union was declared “operational” remove this letter from the realm of advice, for there is a valid and significant distinction between the existence of the union and its certification as an operating bargaining agent. To apply to PERB, the union had to be in existence, and the letter made it clear that the group could not deal with the officials yet, that the certification was a potentially lengthy legal proceeding, and that thinking about the issues the union might eventually raise (while obeying all prison rules) was the only concerted action inmates ought to take at present. They were not urged to change their work habits or to present any demands to the administration. A finding that this is not propaganda or incitement cannot be termed clearly erroneous.
Under the test for attorney-client mail, the state must show clearly an abuse of access in order to justify restriction. Defendants claim that such an abuse exists here, because the letter advocated an “unlawful scheme,” one instance mentioned by the Sostre court in which some restriction would be permissible. The contention that an application for recognition of the union and communication with one’s clients preparatory to such application are components of an unlawful scheme seems a misuse of that term. The lawyers were telling the prisoners to utilize lawful, not unlawful channels for the presentation of grievances and were guiding a challenge to a prison rule through orderly procedures. It is difficult to discern in what other fashion the prison would prefer to have the rule examined; it is the only peaceful method by which it can be reviewed by someone other than the Commissioner or his deputy, who are naturally interested in quelling any inmate activity which may arrogate to inmates themselves some decision-making power about the conditions of prison life.
Legal Aid points out, as the district court found, the inconsistency between the officials’ tolerance of the solicitation and mailing of authorization forms and the intolerance of a legal opinion which they undoubtedly never expected and with which they vehemently disagree. Given the fact that they allowed the solicitation which raised inmate hopes, their argument about the danger that will result from the disillusionment they will have to cope with on the heels of the Legal Aid letter seems highly disingenuous. They can hardly claim that to allow the prisoners to read a letter will be more disruptive than to deny them all word of the result of their organizational efforts of several months. In fact, the state conceded this point at oral argument; counsel stated that her clients did not object to a letter advising the inmates of the applicable law and recent events, but that the objection to the present letter was that it assumed the union was “operational.” This objection has been disposed of above.
Despite the fact that the letter was not within that category of legal mail which constitutes an abuse of access, defendants claim that the existence of a clear and present danger to the security of the institution justifies the exclusion. When such a danger exists, it has been held permissible to restrict even those most basic and “preferred” freedoms of individuals. A standard for such danger in a prison context has been set forth in Fortune Society v. McGinnis, supra n. 3, with which we agree: that in order to justify official interference, the state must show “a compelling state interest centering about prison security, or a clear and present danger of a breach of prison security, * * * or some substantial interference with orderly institutional administration.” 319 F.Supp. at 904.
The Commissioner, in an affidavit by an assistant attorney general, claims that the distribution of the letter would impair the orderly administration of the institution by creating an alternate source of authority to challenge the officials. However, the union’s legality is being adjudicated in another proceeding, and the introduction of the letters will not lead irresistibly to that result before the conclusion of that other procedure; it merely keeps the parties to that proceeding informed of its progress and of issues on which they may have to advise counsel. He emphasized his fear of reprisals when, after delivery of the letters, he is obliged to inform the inmates that the union can never exist. As the very issue of its right to negotiate is being litigated in another forum, he need not and cannot honestly tell the inmates that it “can never” exist, but merely give his opinion on the probable outcome of that proceeding. And defendants’ fears that their own response to the letters will in turn cause a disturbance cannot justify a refusal to deliver them. Finally, the Superintendent states that he expects fights between pro and anti-union inmates.
These conclusory predictions are based on the fact that there are approximately ten fistfights a week at the institution (which houses 1900 inmates) and that there have been threats. against several guards over a period of months and a few unfounded rumors of “trouble.” But during this past fall of anxiety and disruption at prisons in New York and elsewhere, Green Haven was quiet; and we conclude that no factual basis is shown for the dire predictions of the defendants. Compare the situations in Lee v. Washington, 390 U.S. 333, 88 S. Ct.994, 19 L.Ed.2d 1212 (1968); Rhem v. McGrath, 326 F.Supp. 681 (S.D.N.Y. 1971) ; Long v. Parker, 390 F.2d 816, 822 (3d Cir. 1968). See Davis v. Lindsay, 321 F.Supp. 1134 (S.D.N.Y.1970).
We conclude that the court was correct in requiring the delivery of the letters and enclosures. The judgment, however, goes further and requires adherence to the present departmental regulation on attorney mail. This regulation goes beyond the requirements of Sostre in requiring that attorney mail be opened in the presence of the inmate, presumably to insure that it is checked only for contraband and is not read for content. This would inhibit the chilling effect of any procedure under which the inmate must trust prison staff not to read an opened letter. While we feel that this policy is desirable, (and has been required in the First Circuit, see Smith v. Robbins, 454 F.2d 696 (1972) ) and urge the Commissioner to pursue it, we think it unnecessary to go so far and to freeze the regulations on this matter on this appeal on the narrow issue of the present Legal Aid letters. The issue here is confined to mail from that source, in accordance with the principles set out herein. The injunction may be modified to require only the delivery of the letters and enclosures described above, and other mail from Legal Aid to the prisoners concerning their union claims and other legal problems.
. The rule on mail from attorneys is as follows: “You may correspond with any attorney on legal matters or regarding your legal rights. Your incoming and outgoing letters and enclosures will be opened and examined in your presence to insure the absence of contraband. The contraband will be censored.”
. In Marsh v. Moore, 325 F.Supp. 392 (D.Mass.1971), cited by the court below, the withholding of mail from an attorney to his client concerning a pending legal matter was held to be irreparable injury in the preparation and prosecution of the case, and to warrant preliminary relief.
. On the first amendment rights of prisoners, see Barnett v. Rodgers, 133 U.S. App.D.C. 296, 410 F.2d 995 (1969); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Seale v. Manson, 326 F. Supp. 1375 (D.Conn.1971); Payne v. Whitmore, 325 F.Supp. 1191 (D.Cal. 1971); Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.N.Y.1970); Sobell v. Reed, 327 F.Supp. 1294 (S.D.N.Y. 1971). See generally.Note: Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971).
. As the court said in Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970), “that prison inmates do not have all the constitutional rights of citizens in society— and may hold some constitutional rights in diluted form — does not permit prison officials to frustrate vindication of those rights which are enjoyed by inmates or to be the sole judges' — by refusal to mail letters to counsel — to determine which letters assert constitutional rights.” 430 F.2d at 551.
. If the documents do not constitute a call to illegal concerted action against the institution, then the appellants claim that they are merely correspondence between members of the public and the inmates that may be censored, as “many kinds of controls on the correspondence of the inmate” are constitutionally permissible. Sostre, supra, 442 F.2d at 199. Limits on those to whom he can write and on what he can say and censorship to remove offensive material are permissible. See Administrative Regulation No. 20, paragraph 12.
We think, however, the letter and documents cannot properly be termed merely correspondence sent to the prisoners by interested members of the public. The Legal Aid Society had no involvement in prisoner unions before they received the letter from the prisoners in Green Haven asking for advice on the formation of such a group. The letter specifically gave a legal opinion on how to form a union, its legal status, possible powers, etc. This appears to us bona fide legal advice despite the somewhat over-enthusiastic language in some parts of the letter. That language, given the clearly expressed lack of intent to incite any violence against the institution, does not change the legal nature of the letter.
. The rule in Sostre and most other cases is not limited to certain forms of legal action but extends to communication on any legal questions and issues intended to obtain redress for alleged unconstitutional rules or actions.
. Nolan v. Fitzpatrick, 326 F.Supp. 209, 214-217 (D.Mass.1971). Cf. Edwards v. South Carolina, 372 U.S. 229, 231, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Terminiello v. Chicago, 337 U.S. 1, 5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Of course, the likelihood of the communications themselves causing breach of security or of prison discipline or substantial interference with administration is to be measured in the light of the situation within the institution, rather than the conditions outside portrayed in Edwards and Terminiello. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine or not there was any amicus participation before the court of appeals. | Was there any amicus participation before the court of appeals? | [
"no amicus participation on either side",
"1 separate amicus brief was filed",
"2 separate amicus briefs were filed",
"3 separate amicus briefs were filed",
"4 separate amicus briefs were filed",
"5 separate amicus briefs were filed",
"6 separate amicus briefs were filed",
"7 separate amicus briefs were filed",
"8 or more separate amicus briefs were filed",
"not ascertained"
] | [
1
] | songer_amicus |
UNITED STATES v. HURLBURT.
No. 1029.
Circuit Court of Appeals, Tenth Circuit.
July 28, 1934.
Ivor 0. Wingren, Asst. U. S. Atty., of Denver, Colo. (Thos. J. Morrissey, U. S. Atty., of Denver, Colo., on the brief), for the United States.
Jean 8. Breitenstein, of Denver, Colo., for appellee.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
PHILLIPS, Circuit Judge.
This action was brought by the United States to cancel a patent dated April 14, 1930, conveying a homestead to Hurlburt.
The material facts, as established by the agreed statement of facts and photostat copies of pertinent records of the Land Office, are these: Prior to February 2, 1915, the United States was the owner, as part of its unsurveyed public domain, of the following described land: The W% of the SE% and the SW]4 of Sec. 3, and the E% of the SE% of Sec. 4, Township 6 South, Range 95 West of the 6th P. M., containing 320 acres, Garfield County, State and District of Colorado. Hurlburt, after marking the exterior boundaries of such land, filed a settlement claim on February 2, 1915, in the United States Land Office at Glenwood Springs, Colorado. About July 15, 1915, he established his homo thereon, with a view to acquiring title thereto under the homestead laws of the United States when it became open and subject to homestead. He expended about $1500 in improving such land. He cultivated a small portion and used the balance of the land for grazing livestock. On December 6, 1916', the President of the United States issued an executive order which reads in part as follows: “It is hereby ordered that all lands included in the following list shall hereafter constitute Naval Oil Shale Reserve No. 1, Colorado No. 1, and shall be held for the exclusive use or benefit of the United States Navy, until the order is revoked by the President or by Congress.” The land in controversy is described in such list. i
Subsequently thereto, the land was surveyed and a plat showing such survey was filed in the Land Office on January 7, 1924. Hurlburt filed a homestead application on January 2, 1924, which was aecejited and allowed. After the usual field investigation, a recommendation was made that upon submission of final proof the land be clear-listed and passed to patent. Final proof was made on September 12, 1929, and on April 14, 1930, a patent was issued containing the following reservation: “Excepting and reserving, also,, to the United Slates all oil and gas and all shale or other rock valuable as a source of pe-, troleum and nitrogen in the lands so patented, and to it, or persons authorized by it, the right to prospect for, mine and remove such deposits from the same upon compliance with the conditions and subject to the provisions and limitations of the Act of July 17, 1914 (38 Stat. 509 [30 USCA §§ 121-123]).”
The trial court found that Hurlburt entered and settled upon such land in 1915 in good faith, and sinee that time has continuously maintained and perfected such entry and settlement. It concluded as a matter of law that such land was improperly and unlawfully included within the executive order of December 6; .1916.
Under section 3 of article 4 of the Constitution, Congress lias the power to dispose of and make all needful rules and regulations, respecting the territory of the United States. Utah Power & L. Co. v. United States, 243 U. S. 389, 37 S. Ct. 387, 61 L. Ed. 791; United States v. Gratiot, 14 Pet. 526, 537, 10 L. Ed. 573; Gibson v. Chouteau, 13 Wall. 92, 20 L. Ed. 534; United States v. Hanson. (C. C. A. 9) 167 F. 881. On June 25, 1910, Congress passed an act conferring upon the President the power to temporarily withdraw from settlement, location, sale, or entry any of the public lands, for certain specified purposes.
Prior to the passage of such act the President had made numerous withdrawals of public lands, and his power so to do had been confirmed by the courts. United States v. Midwest Oil Co., 236 U. S. 459, 35 S. Ct. 309, 316, 59 L. Ed. 673.
In that case the court said: “Congress, with notice of this practice and of this claim of authority, received the report. Neither at that session nor afterwards did it ever repudiate the action taken or the power claimed. Its silence was acquiescence. Its acquiescence was equivalent to consent to continue the practice until the power was revoked by some subsequent action by Congress.”
The Act of June 25,1910, did not attempt to affirm, repudiate, abridge, or enlarge any withdrawals previously made. Its purpose was to confer specific authority upon the President for the future, subject to the restriction that “there shall be excepted from the force and effect of any withdrawal made under the provisions of this Act all lands which are, on the date of such withdrawal, embraced in any lawful homestead or desert-land entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law.”
The executive order creating the naval oil shale reserve and withdrawing the land from settlement was issued December 6, 1916. It ■was therefore subject to the exception clause -contained in the Act of June 25, 1910, and •could not affect a prior valid settlement.
Did Hurlburt make a prior valid settlement that would bring him within the exception clause of that act?
The record shows that prior to December 6, 1916, Hurlburt entered upon the land, marked the exterior boundaries, built a home, and filed a settlement claim with the United States Land Office. It is admitted that he continued to reside thereon and did everything required by law to secure a patent, but it is contended that the land was unsurveyed and not subject to sale, entry, or disposal mirier the laws of the United States.
One settling upon public domain in advance of public surveys acquires no right, except the preferential right to secure the land after it has been surveyed and offered for settlement. There is nothing in the essential nature of the mere acts of entering upon unsurveyed public land, residing thereon, and improving it with the intention of filing on it as a homestead, that confers upon the settler a vested right or claim to the land, and such acts in no wise impair the power of the government to set aside the land for any public use. Frisbie v. Whitney, 9 Wall. 187, 19 L. Ed. 668; Kansas Pac. R. Co. v. Dunmeyer, 113 U. S. 629, 5 S. Ct. 566, 28 L. Ed. 1122; Buxton v. Traver, 130 U. S. 232, 9 S. Ct. 509, 32 L. Ed. 920; United States v. Hanson (C. C. A. 9) 167 F. 881, 886. See, also, 43 USCA §§ 166, 218 and 223, which deal with preferential rights of settlers on surveyed and unsurveyed public land.
Conceding that Hurlburt’s occupation of public land gives him no.right against the government, and that Congress had the power to set apart the land in controversy, we come to the inquiry whether Congress, by the reservation contained in the Act of June 25, 1910, withheld from the President power to withdraw Hurlburt’s land. The reservation in the act contemplates that there might be a valid settlement upon public lands, other than those which are embraced in legal entries or covered by lawful filings, as those terms are used in the public land laws. The courts have held also that a valid settlement could be made upon unsurveyed public land.
We conclude that Hurl hurt made a valid settlement within the meaning of the reservation clause of the act of June 25,1910.
Furthermore the land was withdrawn as a naval oil shale reserve. Under the Act of July 17, 1914 (38 Stat. 510, § 3 [30 USCA § 123]) such lands are subject to settlement, and a patent may be issued with a reservation of the mineral rights in the United States.
The record clearly shows that the Land Office in receiving the application and issuing the patent, considered itself bound by such act.
The judgment is affirmed.
The Act of June 25, 1910 (36 Stat. 847, §§ 1, 2 [43 USCA §§ 141, 142 and note]), read in part as follows:
“That.the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States * • * and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.
“Sec. 2 * * * That this Act -shall not be construed as a recognition, abridgement, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after any withdrawal of such lands made prior to the passage of this Act: And provided further, That there shall be excepted from the force and effect of any withdrawal made under the provisions of this Act all lands which are, on the date of such withdrawal, embraced in any lawful homestead or desert-land entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law; but the terms of this proviso shall not continue to apply to any particular tract of land unless the entry-man or settler shall continue to comply with the law under which the entry or settlement was made.”
In Holmes v. United States (C. C. A. 9) 118 F. 995, 999. the court said:
“Does the settler upon unsurveyed land, who makes it his home with the intention, as soon as the land is surveyed, to take the necessary steps to secure and protect his entry as a homestead, and to acquire title under the homestead law, and who malíes valuable and permanent improvements on the land, make a ‘valid settlement pursuant to law’?
“In Clements v. Warner, 21 How. 394-397, 16 L. Ed. 695, it was said:
“ ‘The law deals tenderly with one who in good faith goes upon the public lands with a view of making a home thereon.’
“In Buxton v. Traver, 130 U. S. 232, 9 S. Ct. 509, 32 L. Ed. 920, it was said:
“ ‘A settlement upon the public lands in advance of the public surveys is allowed to parties who in good faith intend, when the surveys are made and returned to the local land office, to apply for their purchase.’
“In Washington & I. Railroad Co. v. Osborn, 160 U. S. 103, 16 S. Ct. 219, 40 L. Ed. 350, it was held that a settler upon public unsurveyed land, who had made improvements thereon with the intention of acquiring a title under the pre-emption laws as soon as the lands should be surveyed, had a ‘possessory claim,’ such as was protected by the act of congress in granting to a railroad company a right of way over the public lands, and conferring upon a territorial legislature power to ‘provide for the manner in which private lands and possessory claims on the lands of the United States may be condemned.’ * * *f
“It is true, there is no statutory provision which in express terms permits or protects settlement upon unsurveyed public land. We think, however, in view of the foregoing expressions of the supreme court, and the known recognition of the rights of such settlers as against all except the United States, that such a settlement, while it confers no right which the government is bound to respect, is nevertheless a valid settlement, and made pursuant to law, and that it comes within the spirit and intent of the exception contained in the proclamation of the president.”
See also Lytle v. State of Arkansas, 9 How. 314, 333, 334, 13 L. Ed. 153; Stockley v. United States, 200 U. S. 532, 43 S. Ct. 186, 67 L. Ed. 390.
30 USCA § 123 (38 Stat. 510, § 3) reads as follows: “Any person who has, in good faith, located, selected, entered, or purchased, or any person who shall locate, select, enter, or purchase, after July 17, 1914, under the nonmineral land laws of the United States, any lands which are subsequently withdrawn, classified, or reported as being valuable for phosphate, nitrate, potash, oil, gas, or asphaltic minerals, may, upon application therefor, and making satisfactory proof of compliance with the laws under which such lands are claimed, receive a patent therefor, which patent shall contain a reservation to the United States of all deposits on account of which the lands were withdrawn, classified, or reported as being valuable, together with the right to prospect for, mine, and remove the same.” | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
1
] | songer_typeiss |
AMAREX, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION (Successor to the Federal Power Commission), Respondent, Arkansas Louisiana Gas Company, Intervenor.
No. 77-1503.
United States Court of Appeals, Tenth Circuit.
Argued Nov. 16, 1978.
Decided July 17, 1979.
Rehearing Denied Aug. 27, 1979.
Stanley L. Cunningham, Oklahoma City, Okl. (Philip D. Hart, Terry R. Barrett, and McAfee, Taft, Mark, Bond, Rucks & Wood-ruff, a Professional Corporation, Oklahoma City, Okl., on brief), for petitioner.
McNeill Watkins, II, Washington, D.C. (Robert R. Nordhaus, Gen. Counsel, and Philip R. Telleen, Washington, D.C., on brief), for respondent.
Glenn W. Letham, Washington, D.C. (Gilbert L. Hetherwick, Robert Roberts, Jr., Blanchard, Walker, O’Quin & Roberts, Shreveport, La., and Reuben Goldberg, Goldberg, Fieldman & Hjelmfelt, P.C., Washington, D.C., on brief), for intervenor.
James R. Patton, Jr. and David B. Robinson of Patton, Boggs & Blow, and Harry E. Barsh, Jr. of Camp, Carmouch, Palmer, Carwile & Barsh, Washington, D.C., filed briefs, for the State of Louisiana, amicus curiae.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
McWILLIAMS, Circuit Judge.
This case is a review of Opinion No. 798, as modified by Opinion No. 798-A, in which the Federal Power Commission, now the Federal Energy Regulatory Commission, directed Amarex, Inc., to deliver to Arkansas Louisiana Gas Company (Arkla) in interstate commerce natural gas attributable to Amarex’s interest in a certain oil and gas lease relating to land situated in Beckham County, Oklahoma. The background facts are not in dispute, and will be fully set out below, as such are deemed to be quite significant.
On May 4, 1967, the First State Bank of Pittsburg (Kansas), as lessor, and Sinclair Oil & Gas Company, as lessee, entered into an oil and gas lease covering the SE Vi of Section 22, Township 10 North, Range 26 West, Beckham County, Oklahoma. The lease was to remain in force for a primary term ending September 26, 1972. On January 15, 1970, Amarex acquired by assignment Sinclair’s interest in the 1967 lease. On June 6, 1970, Amarex and Arkla entered into a gas purchase contract providing for the sale to Arkla for a primary period of twenty years of natural gas produced under the terms of certain “contract leases” described in Exhibit A attached to the 1970 contract. The 1967 lease was one of the “Contract Leases” described in Exhibit A to the 1970 contract.
More specifically, the 1970 gas purchase contract between Amarex and Arkla provided as follows:
Section 2. Commitment
(A) Subject to the further provisions hereof, [Amarex] hereby agrees to sell and deliver to [Arkla], and [Arkla] agrees to purchase and receive from [Amarex], the natural gas production attributable to [Amarex’s] interest in all Contract Wells, and to that end [Amarex] hereby subjects and commits hereto the Contract Leases.
The 1970 contract defined “Contract Leases” and “Contract Wells” as follows:
(F) “Contract Leases” refers to the oil and gas leases and other mineral interests described in the schedule attached hereto and made part hereof as Exhibit A.
(G) “Contract Wells” refers to all wells now or hereafter completed as commercially productive of natural gas on lands covered by the Contract Leases or on a production unit which includes any part of said lands.
The 1970 contract further provided as follows:
This contract shall be subject to all relevant present and future local, state and federal laws, and all rules, regulations, and orders of any regulatory authority having jurisdiction.
In November, 1970, Amarex filed with the Commission an application for a small producer certificate of public convenience and necessity. By virtue of a Commission order regarding small producers, Amarex was granted on August 12, 1971, a blanket certificate of “unlimited duration” covering all of Amarex’s sales and service in interstate commerce. The order granting the certificate provided, among other things, as follows:
The grant of the certificates aforesaid for service to the particular customers involved shall not imply approval of all of the terms of the contracts, particularly as to the cessation of service upon the termination of said contracts as provided by Section 7(b) of the Natural Gas Act.
Amarex’s service under the 1970 gas purchase contract commenced with initial deliveries to Arkla in November 1971 of gas from acreage described in the 1970 gas purchase contract, though not from the southeast quarter section covered by the 1967 lease. Amarex’s lease interest in that quarter section expired by its own terms in September, 1972. Five months earlier, however, the lessors executed a new lease with Amarex covering the same quarter section for a period beginning on the expiration date of the 1967 lease and continuing for a primary term of five years. Prior to executing the 1972 lease, Amarex requested a title opinion, which read, in relevant part, as follows:
By instrument dated June 6, 1970, Amarex, Inc. and Arkansas Louisiana Gas Company entered into a gas purchase contract covering the lease under consideration. The terms and conditions of the contract are not set forth in the instrument of record, but you are advised that any gas produced from the premises is subject to said contract.
Sometime prior to 1975, the aforesaid Section 22 was declared a drilling and spacing unit by the Oklahoma State Corporation Commission. In August, 1975, a commercially productive gas well was completed in the drilling unit which included the Southeast Quarter of Section 22.
When Amarex refused to comply with Arkla’s request that gas attributable to Amarex’s interest in the Southeast Quarter be delivered to Arkla, both parties commenced proceedings before the Commission. Arkla first filed a complaint asking the Commission to direct Amarex to deliver to Arkla the natural gas attributable to Amarex’s oil and gas leasehold in the aforesaid Southeast Quarter. Amarex, in turn, filed with the Commission a petition for a declaratory order seeking a determination that Arkla was not entitled to the gas attributable to Amarex’s leasehold.
The Commission found that no significant questions of fact were presented by either Amarex’s petition or Arkla’s complaint and directed the parties to file briefs addressing the legal issues involved. Because the petition and the complaint concerned the same factual situation, the two were consolidated.
By Opinion No. 798 the Commission found that the public service obligation, imposed by Amarex’s small producer certificate of public convenience and necessity and the terms of the 1970 gas purchase contract between Amarex and Arkla, applied to Amarex’s leasehold interest in the Southeast Quarter and directed Amarex to deliver to Arkla any gas produced from or attributable to Amarex’s interest in the Southeast Quarter for interstate transportation and sale.
By opinion No. 798-A the Commission denied Amarex’s application for rehearing, but permitted Amarex to deliver gas to Arkla under a protective order, pending the outcome of judicial review of the Commission’s order.
In our view California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) has great bearing on the present controversy. In Southland, the owners of certain acreage in Texas executed in 1925, an oil and gas lease which granted the lessee, Gulf Oil Corp., the exclusive right to produce and market oil and gas from the land for the next 50 years. The owners thereafter sold their remainder interest to Southland Royalty Co., and others. In 1951 the lessee contracted to sell casinghead gas from the leased property to El Paso Natural Gas Co., an interstate pipeline. Following the decision in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954), the lessee applied for a certificate of public convenience and necessity from the Federal Power Commission authorizing its sale of gas to El Paso. The Commission granted the lessee a certificate of unlimited duration. The lessee in 1972 executed a second contract to. sell El Paso Natural Gas Co. additional volumes of gas from the leased premises, and obtained from the Commission in 1973 a certificate of unlimited duration for those volumes.
The original 50 year lease involved in Southland expired in 1975 and under local Texas law the lessee’s interest in the remaining oil and gas reserves terminated and reverted to Southland Royalty Company and the other reversioners. Shortly pri- or to the expiration of the lease Southland agreed to sell the remaining casinghead gas to an intrastate purchaser at a higher price than El Paso Natural Gas had been paying the lessee. It was in this setting that El Paso Natural Gas Co. filed a petition with the Commission seeking a determination that the remaining gas reserves in the leased property could not be diverted from it and into the intrastate market without abandonment authorization obtained pursuant to the provisions of the Natural Gas Act of 1938. 15 U.S.C. § 717f(b). The Commission agreed with El Paso’s contention on the ground that under the Natural Gas Act “service”, once instituted, could not be abandoned without Commission permission and approval. On petition for review, the Court of Appeals for the Fifth Circuit reversed the Commission. Southland Royalty Co. v. F.P.C., 543 F.2d 1134 (5th Cir. 1976). In essence, the Court of Appeals held that the lessee for a term of years could not legally dedicate to interstate commerce the gas reserves remaining at the expiration of the lease period, since a lessee cannot “encumber that which it does not own.”
The Supreme Court in Southland reversed the Court of Appeals and, in effect, upheld the Commission’s decision. In so holding the Supreme Court described the Commission’s position as follows:
“In this litigation the Commission held that once gas began to flow in interstate commerce from a field subject to a certificate of unlimited duration, that flow could not be terminated unless the Commission authorized an abandonment of service. The initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate. The expiration of a lease on the field of gas did not affect the obligation to continue the flow of gas, a service obligation imposed by the Act.” (Emphasis added.) 436 U.S. at 525, 98 S.Ct. at 1959.
In connection with the foregoing the Supreme Court held that the Commission’s interpretation of the abandonment provision of the Natural Gas Act was a “permissible interpretation.”
We recognize that Southland does not involve the precise question here presented. However, the Supreme Court’s approval of the Commission’s position in Southland that the service obligation attaches to “all fields subject to the certificate” certainly suggests that the Commission’s position in the present case should be upheld. The underlying principles in Southland control the present controversy and in our view dictate affirmance of the Commission’s order.
Southland, inter alia, stands for the following: (1) the initiation of interstate service pursuant to a certificate of public convenience and necessity dedicates all fields subject to that certificate; (2) once gas begins to flow in interstate commerce from a field subject to a certificate of unlimited duration, that flow cannot be terminated unless the Commission authorizes an abandonment of such service; and (3) the expiration of a lease on a field of gas does not affect the obligation to continue the flow of gas, a service obligation imposed by the Natural Gas Act.
Applying these principles to the facts of the instant case, we find: (1) when Amarex instituted delivery of gas to Arkla in November, 1971, pursuant to its gas purchase contract with Arkla and under the authority of its certificate of public convenience and necessity, such constituted a dedication of all fields subject to the contract and authorized by the certificate, which would include the gas reserves in the Southeast Quarter with which we are here concerned; (2) gas having begun to flow in November, 1971, from a field subject to a certificate of unlimited duration, such flow could not thereafter be terminated unless the Commission authorized such; and (3) the expiration in September, 1972, of the 1967 oil and gas lease between Amarex and the First State Bank of Pittsburg did not affect the obligation to continue the flow of gas from the field subject to the gas purchase contract, since the service obligation is imposed by the Natural Gas Act independently of property law.
In our view Amarex is in a less favorable position than was Southland Royalty Company. Southland Royalty Company was not a party to the gas purchase contract sought to be enforced in Southland, nor had it been selling in interstate commerce pursuant to a certificate of public convenience and necessity. Such is not the present case. Amarex is a party to the gas purchase contract sought to be enforced by Arkla, and Amarex had been making interstate deliveries to Arkla pursuant to a certificate of public convenience and necessity. Southland Royalty Company was a stranger to the gas purchase contract and the certificate involved in Southland. Amarex is not a stranger to the gas purchase contract and certificate here involved. Rather, it is a party thereto.
In sum, the fact that Amarex’s 1967 lease with the First State Bank of Pittsburg expired in 1972 does not affect the service obligation theretofore imposed on the gas reserves in that quarter section by the prior commencement of delivery under a gas purchase contract covering numerous leasehold interests, including that in the Southeast Quarter, which delivery was authorized by a certificate of unlimited duration granted Amarex by the Commission. Such follows from the teaching of Southland. Southland is but a logical extension of Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960) and Sun Oil Co. v. Federal Power Commission, 364 U.S. 170, 80 S.Ct. 1368, A L.Ed.2d 1639 (1960), and we believe our disposition of the present ease is in line with the rationale of Southland and those prior cases.
The foregoing opinion was written prior to the recent opinion of the United States Supreme Court in United Gas Pipe Line Co. v. McCombs, -U.S.-, 99 S.Ct. 2461, 61 L.Ed.2d 54 (1978). We believe that McCombs fully supports the result reached in the present case.
The Opinion and Order of the Commission is affirmed.
. The Commission in its opinion No. 798, concluded that the certificate was not limited in duration. See Sun Oil Co. v. F. P. C., 364 U.S. 170, 175, 80 S.Ct. 1388, 4 L.Ed.2d 1639 (1960). Amarex does not dispute this conclusion. Rather, it argues that the 1972 lease was not within the scope of the dedication.
. At oral argument it was agreed by all parties that the Natural Gas Policy Act of 1978, Pub.L. 95-621, 92 Stat. 3350 (1978), does not affect this review. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party | What is the nature of the counsel for the respondent? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
4
] | songer_counsel2 |
Nathaniel A. DENMAN, Plaintiff, Appellant, v. Ernest J. WHITE, Jr., Defendant, Appellee.
No. 6066.
United States Court of Appeals First Circuit.
April 24, 1963.
Nathaniel A. Denman, pro se.
Mark R. Joelson, Atty., Dept. of Justice, with whom John W. Douglas, Acting Asst. Atty. Gen., W. Arthur Garrity, Jr., U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on brief, for appellee.
Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.
GIGNOUX, District Judge.
This action was' brought by appellant to recover damages for defamation from appellee, a colonel in the United States Air Force. The district court entered summary judgment in favor of appellee on the ground that the allegedly defamatory statements had been made in the discharge of appellee’s official duties, and were therefore absolutely privileged under the rule of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) and Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959) and related eases.
On- January 15, 1961, Texas Tower 4, a United States Air Force radar installation located in the Atlantic Ocean seventy miles southeast of New York City, collapsed during a storm and fell into the sea, causing the death of 28 Air Force and civilian personnel. On January 16, a newspaper, the New Bedford Standard-Times, published a number of comments by appellant, a registered professional engineer of Falmouth, Massachusetts, which were critical of the conduct of the Air Force in the erection and maintenance of the tower. The article, which was headlined “Cape Engineer Charges Tower Flaw Two Years Old,” quoted appellant as charging that the Air Force “was aware of, or at least surmised, structural damage of Texas Tower 4” as far back as 1958 or early 1959.
At this time, appellee was the Commander of Otis Air Force Base, Massachusetts. One of the units then stationed at Otis Air Force Base was the 4604th Support Squadron, which unit included Texas Tower 4.
On the afternoon of January 16, the assistant to the editor of the Standard-Times telephoned appellee and requested a statement with respect to appellant’s charges. As a result, a conference was held in appellee’s office at Otis Air Force Base on the morning of January 17, which was attended by the reporter who had interviewed appellant, appellee, and several other Air Force, officers, including the Commander of the 4604th Support Squadron and the Base Information Officer. It was during this conference that appellee made the allegedly defamatory statements upon which this action is predicated. These statements, as reported in the January 17 issue of the Standard-Times, under the headline “Otis Officer Calls Tower Criticism ‘Irresponsible’,” were to the effect that appellant’s charges that Texas Tower 4 had been unsafe since 1958 were “irresponsible” and “distortions of the fact,” the only effect of which would be to add to the grief of the families of the 28 men aboard the structure when it collapsed and disappeared.
Appellant then brought this suit in the Barnstable County, Massachusetts, Superior Court alleging that appellee had “publicly, falsely, and maliciously” defamed him “willfully and knowingly, and not in the performance or furtherance of any fiduciary or professional obligation or status * * * but * * * for the fulfillment of his own personal design and intent.” On appellee’s motion, the cause was properly removed to the United States District Court for the District of Massachusetts under 28 U.S. C. § 1442a.
In the district court, appellee filed an answer asserting, inter alia, that the statements complained of had been made in the performance of his official duties. He subsequently filed a motion for summary judgment, with three supporting affidavits. One, by appellee himself, recited that appellee at the time of his statements was Commander of Otis Air Force Base; that one of the units assigned to the Base was the 4604th Support Squadron, which included Texas Tower 4; and that appellee had made the statements complained of in the performance of his official duties as Base Commander, under the authority of A. F.R. 190-6, in response to a newspaper request for information in regard to the collapse of Texas Tower 4. A second affidavit, by appellee’s commanding officer, Major General Henry Viccellio, confirmed that appellee was the Commander of Otis Air Force Base on January 16 and 17, 1961 and that one of his responsibilities as Base Commander was operating the Base Information Program in accordance with A.F.R. 190-6. The third affidavit, by the Director of Information Services, Office of the Secretary of the Air Force, Major General Arno H. Luehman, stated that affiant was “responsible for planning, establishing and supervising the Air Force Information Program as established by Air Force Regulation 190-6”; that appellee as Base Commander had the duty, either directly or through his Information Officer, to furnish news media at their request with information concerning matters affecting his command; and that in his capacity as Base Commander it was appellee’s duty “in respect to the charges attributed to [appellant in the Standard-Times] * * * and the resulting query * * * of that newspaper, * * to present what he knew, or believed to be a factual presentation of the circumstances surrounding the printed charges, availing himself of personnel within his jurisdiction who were knowledgeable of the facts and circumstances.” In reply, appellant filed affidavits of himself, of Bruce A. Grassfield, who had been Staff Procurement Officer on the Base, and of Elnor M. Phelan, the widow of one of the men lost in the disaster. The district court granted appellee’s motion for summary judgment. This appeal followed.
In Barr v. Matteo, supra, and Howard v. Lyons, supra, the two Supreme Court cases upon which the district court relied in support of its ruling, the Supreme Court held that individual officers of the United States Government, who issued public statements in the discharge of their official duties, were protected by an absolute privilege from personal liability in defamation actions. The justification for this privilege was stated in the opinion of Mr. Justice Harlan in the Barr case to be that “ * * * officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” 360 U.S. at 571, 79 S.Ct. at 1339, 3 L.Ed.2d 1434.
Appellant here does not question the Barr doctrine, but rather urges upon us that the rule of that case is not applicable to the facts of this case because appellee’s statements were not made by him in the discharge of his official duties. We find no merit in this contention. A.F.R. 190-6 establishes an Air Force Information Program, a basic objective of which is “to fulfill the obligation of keeping the American public informed of Air Force activities.” A.F.R. 190-6 (1). It states that this aspect of the program is to consist of “collecting, analyzing, and passing along to the public unclassified information about the Air Force and its activities.” A.F.R. 190-6 (1) (b). The regulation also designates the persons responsible for carrying on the information program, and with respect to Air Force bases it specifically provides that the base commander will “(1) Operate the information program within his command” and “(2) Coordinate the information actions and activities of tenant and attached units.” A.F. R. 190-6(2) (d). The commander of each tenant organization is similarly directed to “coordinate information activities with the base commander.” A.F.R. 190-6(2) (f). It seems clear that under A.F.R. 190-6 it was within appellee’s authority as Commander of Otis Air Force Base to release to the public unclassified information relative to the activities of units assigned to the Base, both those units which were within his primary, or tactical, command and those units which were subject to his jurisdiction as Base Commander because stationed at the Base as tenant or attached units. Since appellee’s published comments on the Texas Tower disaster related directly to an activity of an Air Force unit which was assigned to appellee’s base, we have no doubt that, as certified by his superior officers, they were authorized, if not required, by A.F.R. 190-6.
Appellant argues, however, that since Air Force Regulation 190-10 imposes on the commander of the base nearest an accident the responsibility of releasing information as to accidents as quickly as possible, and since there were other bases nearer the location of Texas Tower 4 than Otis Air Force Base, the whole matter of the collapse of Tower 4 was no official concern of appellee. Even if appellant is correct that some other base commander had the primary duty of releasing information as to the accident, we agree with the district court that the matter was still one which concerned a unit assigned to appellee’s Base, and on which he was clearly authorized by A.F.R. 190-6 to release information to the press. Upon this point, the opinion of Mr. Justice Harlan in Barr v. Matteo, supra 360 U.S. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d 1434, is pertinent:
“That petitioner was not required by law or by direction of his superiors to speak out cannot be controlling in the case of an official of policy-making rank, for the same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.”
Even if, however, it be conceded that appellee’s conduct in releasing information to the press concerning the Tower 4 collapse was not in technical compliance with applicable Air Force regulations, we think it clear that the Supreme Court in Barr v. Matteo, supra, “expressly rejected a rigid scope of duty, as literally prescribed by rule or regulation, in favor of a more generalized concept of line of duty.” Preble v. Johnson, supra note 2, 275 F.2d at 278. The opinion of Mr. Justice Harlan states:
“The fact that the action here taken was within the outer perimeter of petitioner’s line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint * * * ” 360 U.S. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d 1434.
And again, the concurring opinion of Mr. Justice Black concludes:
“It is enough for me here that the press release was neither unauthorized nor plainly beyond the scope of Mr. Barr’s official business, but instead related more or less to general matters committed by law to his control and supervision. See Spalding v. Vilas, 161 U.S. 483, 493, 498-499 [16 S.Ct. 631, 40 L.Ed. 780].” 360 U.S. at 577-78, 79 S.Ct. at 1343, 3 L.Ed.2d 1434.
Thus, as stated by Murrah, C. J., in Preble v. Johnson, supra, it seems fairly plain that under the rule of Barr v. Matteo “statements which are neither strictly authorized by, nor in furtherance of, some rule or regulation may nevertheless be in line of official duty, hence privileged, if they are deemed appropriate to the exercise of the utterer’s office or station.” 275 F.2d at 278. Measured by this standard, we have no doubt that the statements challenged here, which were made in response to a newspaper request for comment upon the implications of Air Force negligence contained in appellant’s quoted charges with respect to a unit assigned to appellee’s base, were “an appropriate exercise of the discretion which an officer of [appellee’s] rank must possess if the public service is to function effectively.” Barr v. Matteo, supra, 360 U.S. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d 1434. We conclude that, under the circumstances of their issuance, appellee’s statements were well within the “outer perimeter” of his line of duty, and therefore within the protection of the asserted privilege.
Only one other question is raised on this appeal. Appellant appears to suggest that the privilege asserted by appellee protects only statements of fact and not expressions of opinion, or comment. More specifically, he asserts that appellee’s use of such words as “irresponsible” and “distortions of the fact,” and the reference to grieving families, was an attack upon him personally, and, as such, outside the privilege. We do not agree with appellant’s interpretation. Appellee’s characterizations related to appellant’s charges, not to his character. As such, they clearly related to the matter in dispute and were well within the range of fair comment upon the matters appellee was privileged to publish. A privilege is not lost by its forceful exercise. Cf., Beauharnais v. Pittsburgh Courier Publishing Co., 243 F.2d 705 (7th Cir. 1957); Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 61, 80 N.E.2d 16, 19 (1948). We intimate no view as to whether the privilege accorded a government official by Barr and Howard would permit a collateral personal attack upon the party he is seeking to answer when the latter’s character is not itself directly in issue. Cf., Union Mutual Life Ins. Co. v. Thomas, 83 Fed. 803 (9th Cir. 1897); Sacks v. Stecker, 60 F.2d 73 (2d Cir. 1932).
We hold that the statements made were absolutely privileged, and affirm the judgment of the district court.
Judgment will be entered affirming the judgment of the district court.
. A.F.R. 190-6 (effective December 2, 1960) is entitled “Air Force Information Program,” and provides in pertinent part:
1. What the Information Program Is. The commander uses the information program to keep his personnel informed, and motivated for maximum production and service, and to fulfill the obligation of keeping the American public informed of Air Force activities. The four fields of operations are internal information, public information, community relations, and historical activities.
*****
b. Public information activities consist of collecting, analyzing, and passing along to the public unclassified information about the Air Force and its activities (see AFR 190-12). This aspect of the program is based on two principles:
(1) The full record of the Air Force should be available to the American people, subject only to security restric tions.
(2) The Air Force has a responsibility to report to the American people on its use of resources, both human and material.
*****
2. Who is responsible.
*****
(d) Air Force Bases. The commander of each Air Force base or similar organization will:
(1) Operate the information program within his command.
(2) Coordinate the information actions and activities of tenant and attached units. This responsibility includes providing support and facilities for the conduct of information activities.
* * * * *
(f) Tenant Units. The commander of each tenant organization will coordinate information activities with the base commander.
*****
. The competent allegations in appellant’s affidavits raise no controverted issues of fact material to this appeal. For example, the pertinent averments in appellant’s own affidavit do no more than assert by way of conclusion that appellee’s statements were not made pursuant to his official duties, obviously not a matter within appellant’s personal knowledge. Fed. R.Civ.P. 56(e). Cf., Preble v. Johnson, 275 F.2d 275, 279 (10th Cir. 1960). Similarly, the affidavit of Elnor M. Phelan simply recites that appellee’s wife had informed her that appellee “had nothing to do with the Texas Tower Squadron”, a matter neither within affiant’s personal knowledge nor admissible in evidence. Fed.R.Civ.P. 56(e).
. The classic statement of the reason for the privilege is that of Learned Hand, C. J., in Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), as quoted in part by Justice Harlan in Barr v. Matteo, 360 U.S. at 571—72, 79 S.Ct. at 1339-1340, 3 L.Ed.2d 1434:
“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. * * *
“The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.
* !¡t *»
. See note 1, supra.
. In addition to being Base Commander, appellee was also Commander of the 551st Aircraft Early Warning and Control Wing, which was stationed at the Base. The 4604th Support Squadron was not subject to appellee’s tactical command in his latter capacity because it was a part of another wing, located at Stewart Air Force Base, New York. However, it is not disputed that the 4604th Support Squadron, being attached to the Base, was within appellee’s jurisdiction as Base Commander.
. A.F.R. 190-10, which is entitled “Release of Information on Accidents,” provides in pertinent part:
“2. Who Will Release Information. The commander of the base nearest the accident will give news media all releasable information as quickly as possible.”
Appellant’s affidavit raises an issue of fact as to whether or not Otis Air Force Base was the nearest base to the site of the disaster, an issue which, however, becomes immaterial in view of our holding as to the applicability of A.F.R. 190-6. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of executive order or administrative regulation by the court favor the appellant?" This does include whether or not an executive order was lawful. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the interpretation of executive order or administrative regulation by the court favor the appellant? This does include whether or not an executive order was lawful. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_execord |
Lewis M. WAGNER, Appellant, v. READING COMPANY.
No. 18119.
United States Court of Appeals, Third Circuit.
Argued Feb. 19, 1970.
Decided June 23, 1970.
Rehearing Denied July 27, 1970.
F. Ross Crumlish, Crumlish & Kania, Philadelphia, Pa., for appellant.
Denis V. Brenan, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellee.
Before KALODNER and VAN DUSEN, Circuit Judges, and FULLAM, District Judge.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This case is before the court on appeal from a March 19, 1969, judgment on a verdict for plaintiff in an action under the Federal Employers’ Liability Act, 45 U.S.C. § 51 ff., for damages suffered by the plaintiff as the result of an accident during a train movement on the “Columbia Annex Run.” Wagner was conductor of a train crew assigned on March 19, 1965, to transfer cars from a main track of the railroad onto a siding, crossing a road and entering an industrial plant in Columbia, Pennsylvania. He left the engine which his crew was using and entered the plant to make sure that it was safe to move the cars and was crushed between two cars when a fellow employee allegedly moved the train without authorization or signal from the plaintiff, who was in charge. The defendant offered evidence aimed at showing that Wagner himself had given the signal which caused the cars to move. The jury found for the plaintiff but reduced its award of $11,-100. by 40% on the basis of contributory negligence. The trial judge denied plaintiff’s motion for a new trial, and Wagner now asserts several grounds for reversal on this appeal.
Cross-Examination of Medical Witness
As soon as the injury occurred, Wagner was taken to Columbia Hospital, where he was examined and operated on by Dr. Paul J. Rowan who supervised his convalescence until his release from the hospital. Dr. Rowan testified that, after x-rays were taken, exploratory surgery was performed on the plaintiff which revealed that his stomach and other internal organs had been pushed out of place, and that four of plaintiff’s ribs had been fractured. He removed plaintiff’s spleen and moved the misplaced internal organs to their proper position. Dr. Rowan notified defendant that the plaintiff was able to resume work on May 17, 1965, approximately two months after the accident. During his testimony he made reference to hospital reports made during plaintiff’s treatment which were subsequently introduced into evidence at the close of plaintiff’s case.
[1] On cross-examination, defendant’s counsel was permitted to ask Dr. Rowan, over objection, if during surgery he had discovered or detected an esophageal hiatal hernia. He answered that he had not. Plaintiff contended at trial, and he has renewed his contention on appeal, that this was improper cross-examination since it was beyond the scope of his direct examination of the doctor. We disagree. Initially it may be observed that the determination of the extent or limitation upon cross-examination of witnesses is a matter of discretion with the trial court. See Thorp v. American Aviation and General Insurance Co., 212 F.2d 821 (3rd Cir. 1954). Where, as here, a general treating physician has testified on direct examination to his diagnosis and treatment of injuries he discovered in a patient’s chest and abdominal region, it is no abuse of discretion to permit a question aimed at negating an injury to organs in this region. Our conclusion is supported by the statement in the x-ray reports to which Dr. Rowan referred during direct examination that no such hernia existed (see plaintiff’s Exhibit P-3, x-ray report of 3/30/65).
Exclusion of Wage Records from August 1966 to Time of Trial
The plaintiff testified that, after being released to return to work in May of 1965, he could not cope with the long hours required on the Columbia Annex Run where he had been working at the time of the injury, so that he took a lower paying position in the defendant’s Coatesville Yard until January 21, 1966. At that time, thinking that he would be able to perform the duties, he returned to the Columbia Annex Run, where he worked until August 1966. He left the Columbia Annex Run in that month “Because, as I stated before, after we start making a lot of overtime, and after eight hours or more I start hurting more through the chest cavity. As I get tireder I hurt more.” At that time, he went to work at the defendant’s Lancaster freight run, where he was not required to work overtime.
Dr. Rowan testified that he certified that plaintiff could return “to his usual work” on May 17, 1965. However, in response to a question on cross-examination which implied that Wagner had fully recovered at that point, the doctor replied:
“I concluded that he had reached maximum medical benefit, and that aside from the sequela which I have mentioned, he had recovered to the point where medical science could bring him.”
He also testified that the plaintiff would have “sequela,” including adhesions in the abdomen and permanent scarring in the left chest cavity, and that these residual effects of the accident would cause “distress.”
When the plaintiff sought to introduce wage records to demonstrate a differential in pay between what he could have earned had he stayed at the Columbia Annex Run and what he earned after August of 1966 on the Lancaster Run and on similar work prior to trial, the trial judge excluded the evidence over timely objection.
After careful consideration of the record, we have concluded that the possible loss of earnings after August 1966 should have been left to the jury and this ruling excluding the wage records was prejudicial error, requiring a partial new trial. Contrary to defendant’s contention, plaintiff’s medical witness did not testify that plaintiff was “fully recovered” when he released him for work in May of 1965. Rather, as noted above, he testified that he had recovered “to the point where medical science could bring him.” In view of his testimony that certain residual effects of the accident would cause the plaintiff distress, plaintiff was clearly competent tq testify to the existence of pain in his chest cavity and the jury could have believed that this pain made the longer hours on the Columbia Annex Run intolerable, as plaintiff claimed. In the context of this claim, we do not believe that medical testimony was required to establish plaintiff's inability to work when such inability was allegedly caused by pain which medical testimony had already established was the result of the accident in question. See Schultz v. City of Pittsburgh, 370 Pa. 271, 88 A.2d 74 (1952); Tabuteau v. London Guarantee & Accident Co., 351 Pa. 183, 40 A.2d 396 (1945). The case of Dixon v. Pennsylvania Railroad Company, 378 F.2d 392 (3rd Cir. 1967), relied on by the defendant, is clearly inapplicable. There a railroad signalman claimed a future loss of earnings from his alleged inability to climb, which purportedly arose from an injury suffered to his right leg. His own doctor, however, testified that the ability to climb could be determined only by climbing and the signalman had not tested his leg by attempting to climb. His employer’s doctors had cleared him for climbing work about a year after the accident. We sustained the District Court’s refusal to submit this issue to the jury on the grounds that a jury verdict would have been “sheer conjecture.” Such was not the case here, where plaintiff had in fact attempted to perform the disputed task for some six months and medical testimony had established that the pain which he claimed necessitated his taking another position was a result of the accident.
Because the above-described exclusion of evidence only concerned the damage issues, plaintiff is entitled to a new trial solely on those issues. Any award of damages at the new trial will bear interest from March 19, 1969.
Since the record justifies the jury’s findings of negligence and contributory negligence, the assessment of damages portion of the March 19, 1969, judgment will be vacated and the cause remanded for a new trial solely on the issue of damages, in accordance with the foregoing opinion.
. The District Court opinion of June 27, 1969, denying plaintiff’s motion for a new trial, is presently unreported.
. Because this contention is rejected on the merits, it is not necessary to pass on defendant’s assertion that plaintiff’s failure to raise this issue in his motion for a new trial bars him from arguing it as error on appeal. See Kiernan v. Van Schaik, 347 F.2d 775, 777 (3rd Cir. 1965); accord, Joseph T. Ryerson & Son, Inc. v. H. A. Crane & Brother, Inc., 417 F.2d 1263, 1265 n. 2 (3rd Cir. 1969).
. Defendant’s brief suggests that its interest in the condition was based on an answer by plaintiff to an interrogatory listing hiatal hernia as a medical condition for which he was going to demand damages at trial. Brief for Appellee at p. 5.
. Plaintiff’s claim that it was error for the trial judge to refuse to permit him to examine a second medical witness is without merit, since the record shows that he voluntarily withdrew the witness.
. Plaintiff’s counsel in response to a request for an offer of proof, stated that he planned to ask the company’s record clerk to testify:
“ * * * that there is a difference in wages from what he earned when he went back to work and the wages that his replacement earned until January 21, 1966, and that after he had left the Columbia Annex job in August of 1966 until the present time the wages of those who have replaced him were different from what he had earned since then.”
. Contrary to defendant's contention (pp. 8-9 of its brief), an examination of the pre-trial memoranda does not establish any limitation on the period of plaintiff’s wage loss claim. If defendant was uncertain of plaintiff’s wage claim, it should have moved that a more specific statement of this claim be stated by plaintiff in an amended pre-trial memorandum. Plaintiff’s Memorandum states (par. B(d) of Document 5): “Wage loss to be determined upon receipt of wage and absence statements.” There is no showing of exactly when such statements were furnished to plaintiff by defendant, but such statements concerning plaintiff had been furnished by the time of the first trial in December 1968 (see notes of Official Court Reporter of hearing on 3/13/69). The transcript of the first trial shows that plaintiff claimed on December 17, 1968, a wage loss from “January 20, 1966 until the present”. Also, by subpoena dated March 6, 1969, and served Friday, March 7 (ten days prior to trial, which started March 17, 1969), plaintiff demanded “all wage and absence records of the individual or individuals who worked in Mr. Wagner’s place on. the Columbia Annex run from March 1965 to the present” (see Document 17). At that time defendant was well aware of plaintiff’s wage claim and his counsel stated it in this language during a hearing sur Motion to Quash the Subpoena on March 13:
“What my suggestion was, apparently his claim is that the plaintiff could have worked but was unable to because of a physical disability causally related to the accident, could have worked on the Columbia Annex job from March of 1965 until the present.”
It is significant that the District Court did not state that it was excluding the wage records due to a limitation on plaintiff’s wage claim as expressed at the pretrial stage of the case, but the exclusion apparently was due to alleged insufficient evidence that plaintiff wanted to work on the Columbia Annex Run even if his physical condition permitted. At N.T. 155 the court stated:
“ * * * I don’t have any evidence before me from which I can conclude, except a self-serving statement by himself that his not working on these various jobs was due to his physical condition.”
We believe that plaintiff’s contention that he would in fact have worked on the Columbia Annex Run was an issue for determination by the jury.
. Also plaintiff contends that the trial judge erred in permitting defendant to show that the defendant had paid the plaintiff’s medical bills which were introduced in evidence, especially since defendant was reimbursed for such expenses by an insurance carrier. Whereas the “collateral source rule” permits a plaintiff to recover such expenses although he has been reimbursed by his own insurance carrier or where a showing has been made that the defendant itself has paid the bills, intending a gift to the plaintiff, we have found no authority for the proposition that payment by the defendant's insurance carrier qualifies as a “collateral source” within this rule and permits plaintiff to recover for damages already paid for by the defendant. Cf. Feeley v. United States, 337 F.2d 924 (3rd Cir. 1964).
. Since defendant’s objection to the improperly excluded evidence has been the cause of the delay in the final assessment of the item of damages, interest should run from March 19, 1969, on the total damages as ultimately computed.
. We have considered the other issues raised by the plaintiff on this appeal and find them to be without merit, | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. | [] | [
0
] | songer_r_fed |
UNITED STATES of America v. John Clifford CHANEY, Appellant, et al.
No. 19548.
United States Court of Appeals, Third Circuit.
Argued May 21, 1971.
Decided Aug. 20, 1971.
I. Leonard Hoffman, Ettinger, Poser-ina, Silverman, Dubin, Anapol & Sagot, Philadelphia, Pa., for appellant.
Victor S. Schwartz, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before SEITZ, VAN DUSEN and ADAMS, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal from a conviction for aiding and abetting three co-defendants in the commission of an armed robbery of a bank on May 26, 1969, in violation of 18 U.S.C. §§ 2113(a), 2113(b), 2113 (d) and Section 2 of Title 18. Defendant Chaney was found guilty of all four counts and on January 22, 1971, was sentenced to eight years’ imprisonment. Co-defendant Sheppard was also convicted. However, the jury acquitted co-defendant Williams and the court granted co-defendant Anderson’s motion for judgment of acquittal. After trial, a hearing was held by the court at which evidence was received concerning defendant Chaney’s pro se motion attacking the verdict on the grounds that he was denied effective assistance of counsel. After completion of the hearing, argument was heard on defendant Chaney’s motions for a judgment of acquittal and/or a new trial, and they were denied. This appeal from the January 22, 1971, sentence followed.
I. Claimed Insufficiency of Evidence to Support The Verdict
Chaney first claims that the evidence was legally insufficient to sustain a verdict of guilt on any of the four counts. He maintains that the testimony of Government witness Meginley was mere speculation and therefore inadmissible. We disagree.
Meginley’s testimony indicated that the vehicle used as a get-away car in the bank robbery was the vehicle borrowed by Chaney from witness Mathis on the day of the robbery. Meginley testified that on May 26, 1969, while he was in a public telephone booth about 1:30 P.M., he observed two or three men, one of whom was holding a bag, running towards him. They entered a parked vehicle being operated by a black man. He saw the driver’s back and arm, from which he estimated that he was heavy set, weighed about 220 pounds, and was about 45 years old. Before the vehicle sped away, Meginley was able to note the number on the license plate and a general description of the car. He testified that the license number was Pennsylvania 898-280 and described the vehicle as a 1962 Chevrolet with a tan or bronze color body and a black vinyl or convertible top. The next day, in the company of FBI agents, he identified a car belonging to witness Mathis as of “similar appearance” to the one observed on May 26. He testified that the license plate number was Pennsylvania 898-28A, and the vehicle was a 1962 Chevrolet and had a tan or light brown color. He testified that the only difference between the cars he observed on May 26, 1969, and on May 27, 1969, was that the latter had a damaged fender. Two of the FBI agents who accompanied Meginley on the 27th testified that the car Meginley observed on that date had license plate 89A-280 and was a 1962 Chevrolet which was grayish or tannish in color. Contrary to Chaney’s contention that the trial judge should have instructed the jury on his own initiative that this testimony was incompetent, we have concluded that the testimony on this point was admissible and, at the least, that its receipt was not plain error. See F.R.Crim.P. 52. The similarity of the cars identified on the 29th and 30th was striking, both as to license plate numbers and general description. Any discrepancies in the testimony were properly left to evaluation by the jury.
There was other circumstantial evidence supporting the conclusion that the vehicle used as a get-away car in the robbery belonged to Mathis and was borrowed by Chaney on the date of the robbery. Mathis testified he had loaned the car to Chaney about three times, once on a Monday in May or June 1969. On that date Chaney picked up the vehicle between 8:30 and 9:30 A.M. Chaney telephoned Mathis between 12:00 and 2:30 P.M., advising him that he could not get the car started and had left it at Lancaster Avenue. Chaney returned the keys to him later between 2:30 and 3:30 P.M.
The jury was presented with additional evidence connecting Chaney to the crime. For example, witness Taylor testified that on the day she left to return to Detroit with Sheppard, Sheppard and Chaney had left together from Chaney’s home sometime after 11:30 A.M., returning in the afternoon. Witness Walker observed Chaney and Sheppard together the night before the robbery. Also, the exculpatory statement by Chaney given to agent Culpepper was false in several respects. The evidence of the flight to Detroit and the fact that Chaney had $800. in his possession about May 29th further supported the verdict.
An examination of all the evidence, including that recounted above, leads us to the conclusion that the evidence against the defendant Chaney made out a strong enough case to permit a jury to find defendant guilty. United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959); United States v. Allard, 240 F.2d 840 (3d Cir. 1957); United States v. Kemble, 197 F.2d 316 (3d Cir. 1952).
In reaching this conclusion, we state our agreement with the analysis of Judge Fullam stated at the time he denied the post-trial motions on November 6, 1970 (pp. 149-150 of Document 43), as follows:
First, let me say that on the basis of all of the evidence I think the jury could reasonably conclude that the car which sped away from around the corner from the bank was the getaway car for the robbers, that the people who entered the car were the people who robbed the bank.
* * * [T]here is in my judgment sufficient evidence which would justify the jury in concluding that the car which the defendant Chaney had control of at the time of the robbery was, in fact, the car which sped away from the scene of the robbery, and when we add to that the considerable evidence about Chaney’s association with Sheppard the morning of the robbery, after the robbery- — there is evidence from the witness Tabb that the defendant was together with the defendant Sheppard at the defendant’s home on the evening of the robbery at about 5:00 or 6:00 p. m. — the evidence that the defendant and Sheppard both went out to Detroit and were together out there, the evidence that the defendant Chaney lied to the Federal Bureau of Investigation about that trip to Detroit and about various other matters, and the evidence that the defendant was in possession of large sums of money shortly after the robbery. Add all those together and it seems to me that a jury should be permitted to find that the defendant was guilty as charged.
In short, in my judgment that is what we have juries for. It is to sift the evidence, draw the inferences, and come to a conclusion within the limits of their oaths.
While, as I say, I believe this is a fairly close question, I am not disposed to disturb the jury's verdict in this case.
For all of these reasons, an order will be entered formally later today which will deny all of the post-trial motions of both defendants, Chaney and Sheppard.
II. Alleged Trial Errors
Defendant Chaney asserts that the trial court erred in admitting the testimony of a witness, Ada Tabb, that defendant had large sums of money in his possession subsequent to the robbery. The rule in this circuit is that:
“ * * * the sudden unexplained acquisition of wealth by an impecunious person at or about the time of a theft which he had an opportunity to commit, is competent evidence of guilt and will support *' * * conviction.” United States v. Howell, 240 F.2d 149, 158 (3d Cir. 1956), quoting Hans-brough v. United States, 156 F.2d 327, 329 (8th Cir. 1946).
United States v. McKenzie, 414 F.2d 808, 809 (3d Cir. 1969); See United States v. Jackson, 403 F.2d 647, 649 (3d Cir. 1968). A showing by the Government that the conditions set forth in this test are met is sufficient to establish a direct connection between the money in Chaney’s possession and that which was involved in the crime, as required by Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509 (1897). United States v. McKenzie, supra, 414 F.2d at 809. Defendant Chaney argues there was no evidence of impecuniosity. We disagree. Agent Culpepper of the F.B.I. testified that defendant advised him that he was taking a two-month break from work as a presser and that he had not worked at all for four weeks. Chaney claimed he had been able to save substantial sums of money and Ada Tabb suggested that he won large sums as a gambler. However, it was for the jury to decide whether to believe or disbelieve this evidence of alternative sources of money. We thus conclude that the testimony indicating that defendant Chaney was impecunious constituted sufficient foundation to admit evidence of possession of large sums of money by the defendant subsequent to the robbery.
Defendant Chaney also argues that the prosecutor, in summation to the jury, improperly “(1) used defendant’s exculpatory statement against him as if the same were testimony from the lips of' the defendant in the trial at issue, and further, (2) prejudicially stated that consciousness of guilt was revealed by negative omissions of defendant in failing to state assertive facts germane to the Government’s evidence concerning the co-defendant and other points at issue.” Defendant did not object at trial but now complains of the following statements of the prosecutor:
* * * the 2nd of June Mr. Chaney comes in to make a statement, and he testifies. * * *
Then what does he say? This is only * * * a very short time since the time the bank robbery. * * * What should your recollection be? It ought to be reasonably keen. * * *
Where did you go? * * * Does he in his statement say, “I can tell you I was with Mr. Sheppard that day?”
* * * and he left the house where he lived with Mr. Sheppard in the morning that day. Does he say anything about Mr. Sheppard ?
No, there is nothing said about Mr. Sheppard. Mr. Sheppard he stays clear of totally, nothing mentioned about Sheppard at all.
You recall the testimony about Mr. Sheppard being with him. * * * But no, he didn’t have anything to do with Mr. Sheppard, if you listen to his statement.
But I suggest to you that he is not telling the facts when he doesn’t mention about Mr. Sheppard.
Does he talk about being with Mr. Williams ? No, he doesn’t mention that either.
* * * The testimony * * * said that * * * at 8:30 in the mornings. Williams came, went out with Mr. Chaney.
Did Mr. Chaney say, “Mr. Williams will tell you I was with him”? Nothing in the statement like that at all. Nothing at all. [181a-182a]
tf- 'X* * * -X-
The thing that really impresses me in the Chaney statement is the fact that it says so little and yet every time it does speak out * * * it does not conform with the evidence. * * *
He doesn’t say * * * somebody else may have been behind the wheel of the car picking up my friend Sheppard or picking up my friend Williams * * * as they ran from the bank. He doesn’t say anything like that at all. [186a]
Defendant Chaney concedes that exculpatory statements made upon interrogation with intent to divert suspicion or mislead the police, when shown to be false, are circumstantial evidence of guilty consciousness and have independent probative force. United States v. Smo-lin, 182 F.2d 782, 786 (2nd Cir. 1950). However, he contends that when the prosecutor commented on omissions, using the present tense, his fifth amendment rights against self-incrimination, as protected by Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), were violated. “The test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Hayes v. United States, 368 F.2d 814, 816 (9th Cir. 1966). The statements of the prosecutor which are objected to came during a long review by him of the events occurring around the time of the robbery and the contradictions between what defendant told the FBI agent and the testimony of various witnesses. Viewed in the context of the prosecutor’s entire address, we think it clear he was charging that defendant Chaney lied by not mentioning Sheppard. We do not think those statements, in this situation, even though phrased in the present tense, were such as would lead the jury to conclude that the prosecutor was commenting on the failure of the accused to testify. See Hayes v. United States, supra; cf. United States v. Smith, 421 F.2d 1229, 1230 (3rd Cir. 1970). The following comments- of the trial judge during his charge further made the prosecutor’s meaning clear:
“The government also asks me to point out to you the government’s contention that, in addition to the other evidence that they argue with respect to Chaney, it is their contention that his statements to the F.B.I. agent as to his whereabouts on the day of the robbery and as to the means by which he got to Detroit were false and that the fact that he gave false statements is indicative of guilt.” (N. T. 879).
Even if there were doubts as to the propriety of the prosecutor’s choice of words, it is clear that there has been no plain error in this part of the Government's closing argument. See F.R.Crim. P. 52(b).
We have considered the other trial errors relied on by defendant Chaney and have concluded that either no error or nonreversible error is involved in each such contention.
III. Alleged Ineffective Assistance of Counsel
Defendant Chaney contends he was denied his constitutional rights due to ineffective assistance of counsel. His principal point is that his appointed attorney should have personally interviewed several potential trial witnesses to support an alibi defense. Of the four possible witnesses Chaney mentions, all were interviewed by a staff investigator from the Defender Office. Both attorneys who were involved in the defense of Chaney testified that the investigator was both skilled and experienced. The investigator found that none of these witnesses could accurately identify the time when they had seen defendant. The investigation reports were discussed by the trial counsel with the first counsel assigned to the case as well as with the defendant himself.
The trial judge, at the conclusion of the post-trial hearing on September 10, 1970, stated that:
“ * * * the witnesses have testified or their testimony has been presented * * * in these post trial hearings, and it is quite clear that the analysis of their testimony as formed by [the trial attorney] from reviewing the file was substantially accurate. None of these witnesses would have been an effective alibi witness at the trial, since none was able to pinpoint the time in any relevant respect.”
A review of the evidence as a whole convinces us that counsel’s performance was at the level of normal competency demanded by this circuit in Moore v. United States, 432 F.2d 730 (1970).
For the above reasons, the judgment and commitment of January 22, 1971, will be affirmed.
. After Meginley liad described seeing the back of the driver of the car with a “heavy arm” and after the judge had sustained an objection to a request that such witness identify anyone in the courtroom having “an arm similar to the arm you saw,” the judge refused to sustain an objection to the question “Would you describe for us the age of the man behind the wheel?” In response, Meginley testified that: “I estimated he was like a forty-five year old man, around there, forty or forty-five. He was a heavy-set person, a lot like a man 220 or something. I am estimating from the size of his arm.” Chaney’s contention that the answer was unresponsive and incompetent is rejected. The back and side view of an auto driver, including such items as hair color and arm size, may be a sufficient basis to estimate age after estimating weight. Also, no motion was made to strike the last two sentences of the above-quoted answer.
. Witness Surgenewich testified that he had Pennsylvania license number 898-280 on his car, a two-tone blue, 1963 Comet and that on the day of the robbery the car was in Wyoming, Pennsylvania, 130 miles from Philadelphia. This evidence presented a sufficient basis for the jury to infer that Mr. Meginley was wrong in his initial impression that the car seen on the day of the robbery had a number whose third digit was an eight rather than an A.
. The jury was entitled to find that tire testimony of the trained FBI agents accurately stated the license plate number as 89A-280 and that Meginley’s testimony inadvertently erred in misstating a different digit on the license plate as of each of the dates he saw the car (May 26 and May 27).
. Mathis testified that ho did not know the license number of his car and that the car was a light tan, four-door sedan, 1962 Chevrolet, without a black vinyl or convertible top. We agree with the trial judge who stated (N. T. 149 of Document 43 [hearing of 1/6/70], where rulings on post-trial motions were announced) : “I recognize that various witnesses described this car differently. Some described it as tan, some as bronze, some as gray. There were discrepancies as to whether it had a dark top, whether it was a convertible top, or vinyl top, or what, but it is significant that each witness who saw both that car and the Mathis car invariably described both cars the same way, and there is no question but that the jury could properly interpret the evidence of witnesses who saw both vehicles that they were one and the same vehicle in the opinion of such witness. Add to that the striking similarity of the license numbers, and there is in my judgment sufficient evidence which would justify the jury in concluding that the car which the defendant Chaney had control of at the ■ time of the robbery was, in fact, the car which sped away from the scene of the robbery. * * * ”
. In his statement to the agent, defendant Chaney stated that he gave the key back • to Mathis about 1 or 1:30 and that he took a bus to Detroit about 3:00 P.M. Mathis testified that he got the key back between 2:30 and 3 :30, and that he saw defendant Chaney at 5:00 P.M. in Philadelphia. Another witness testified he saw him at 6:00 P.M. Evidence also indicated that he used a black Ford to travel to Detroit.
. The contentions include the alleged inadmissibility of Sheppard’s statement, testified to by an F. B. I. agent, that the robot camera picture taken in the bank at the time of the crime was a picture of Sheppard, and the alleged impropriety of the prosecutor’s argument to the jury that observation of Chaney’s forearm “does not fail to meet” the testimony of Meginley that the driver of the get-away car had “a muscular arm, sort of a heavy arm, the left forearm” in light of the trial judge’s volunteered admonition to the jury : “It is quite obvious you can’t identify a man by the forearm” (N.T. 177a).
. Defendant Chaney also contends that his trial attorney should have impeached the witness Mathis, who testified at trial that defendant returned the car keys to him between 2:30 and 3 :30 P.M. and that he observed defendant between 5:00 and 6:00 P.M., but who told the investigator before tidal that he had seen defendant at 3:00. We agree with the trial judge, who stated that “It is doubtful whether any further cross-examination would have made his testimony any more helpful to the defense than it was. It was obvious that he tried to make the time as vague as possible to be helpful to the defendant, and counsel should certainly not be criticized for not wishing to antagonize Mr. Mathis, whose testimony on the whole was as favorable to the defendant as it could be made to be.” Further, defendant Chaney contends that counsel should have applied for a severance of his trial from that of the co-defendants. However, the defense attorney testified at the post-trial hearing that he purposely refused to request a severance because he assumed that if the Government tried Sheppard first, and he was convicted on his confession, he would testify against Chaney at the defendant’s trial.
. King Joyner, the bartender of the Gold Coast Bar where defendant Chaney alleged he visited immediately prior to his departure for Detroit, was unable to recall the date in question. Harold Young, a salesman at a shop which defendant Chaney alleges he visited at 1:05 P.M. after delivering the car keys to Mathis, could not recall the time of day of the purchase closer than early afternoon. Jessie Schultz, the proprietor of the shop where Mathis testified seeing the defendant between 5:00 and 6:00 P.M., stated that the defendant had visited the shop, stating that he was going to Detroit, but could not recall the date. Tyrone Smith, an employee of the Friendly Loan Company, where the defendant Chaney claimed to have been at 1:20-l :25 P.M., confirmed the sales purchase slip as being authentic, but could not recall the time of day except sometime after 12:00 noon.
. At the post-trial hearing, Joyner testified that he remembered speaking to Chaney on May 26, 1969, at some time during the early afternoon. At the same hearing, Schultz testified that he could not recall the date or time of day in question.
. We note that, although the notice of appeal filed in November 1970 (Document 36) may be ineffective to challenge the final judgment of January 22, 1971, the Motion For Stay of Execution and Belief Pending Beview (Document 48) filed by Chaney pro se on January 27, 1971, is an effective notice of appeal since “it evidences an intention to appeal.” See Fitzsimmons v. Yeager, 391 F.2d 849, 853 (3d Cir. 1968); cf. United States v. Deans, 436 F.2d 596, 599-600 (3d Cir. 1971). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). | This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. | [
"not ascertained",
"male - indication in opinion (e.g., use of masculine pronoun)",
"male - assumed because of name",
"female - indication in opinion of gender",
"female - assumed because of name"
] | [
0
] | songer_appel2_7_2 |
BUTTRAM v. GRAY COUNTY, TEX., et al.
No. 6660.
Circuit Court of Appeals, Fifth Circuit.
Dec. 8, 1932.
Wales H. Madden, of Amarillo, Tex., for appellant.
Before BRYAN, SIBLEY, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
This is an appeal from a decree dismissing a bill in equity filed by the appellant against appellees, Gray county, Tex., and officials of that county, which sought an injunction restraining and enjoining the enforcement of the collection of taxes for the years 1929 and 1930 assessed by that county against the appellant as the owner of the mineral interest described in an instrument dated February 7, 1928, whereby J. B. Bowers and his wife, Lizzie Bowers, “subject to the exceptions and reservations hereinafter contained,” granted, bargained, sold, conveyed, sot over, assigned, and delivered unto appellant “an undivided one-eighth (%) interest in and. to all the oil, gas, and other minerals in, under and that may be produced from” described lands in said Gray county, containing 3,320 acres, “together with the right of ingress and egress at all times, to, from and upon said lands for the purpose of mining, drilling, exploring and developing said lands for oil, gas and other minerals and removing tho same therefrom.” That instrument contained tho following provisions:
“Said lands being now under oil and gas lease, or leases, as the same may have been originally executed by the grantors herein, and as the same may be shown of record in the Deed Records of Gray County, Texas.
“It is understood and agreed that this sale is made subject to any and all of such leases as the same may be shown of record, but covers and includes the equal undivided one-eighth of all of the oil and gas royalty, gas rental, or royalty of any kind due and to become due under the terns of said leases;
“It is agreed and understood that the equal one-eighth part of the money rentals which may bo paid to extend the term, within which a well may be begun under the terms of any of said, leases is to be paid to the said Frank Buttram, and in the event that the above described leases, or any one or more of them for any reason becomes cancelled or forfeited, then and in that event the said Frank Buttram shall own the same undivided one-eighth interest in any down or bonus money that may bo paid for a new oil and gas lease on said lands described in such canceled or forfeited lease, and same undivided one-eighth interest in all future rentals that may be paid on any of said lands for oil, gas and mineral privileges.
“This sale is made for and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid, the receipt of which is hereby acknowledged, and of the other considerations, payments and reservations as hereinafter set out. In addition to the cash consideration above stipulated, and paid to the grantors heroin, the said grantors here now expressly except and reserve to themselves from such conveyance all of the oil, gas and casinghead gas produced, saved and marketed from the interest in the foregoing lands above described, until the grantors heroin shall have been paid and shall have received from such source the sum of Three Hundred Fifty Thousand ($350,000.00) .Dollars, and all of sueh oil, gas and minerals in,-under and that may be produced from the interest in the lands above particularly described shall belong to and be the absolute property of the grantors herein until they shall have received sueh total sum of $350,000.00 from sueh oil, gas and casing-head gas and other minerals when, as and if the same are so produced, saved and marketed.
“It is understood that the grantors herein shall likewise receive any rentals that may be paid under the terms of any existing leases or any future leases that may be made on and covering any part of said lands that would otherwise be the property of the grantee herein, and shall likewise receive any and all down or bonus monies that may be paid for any future leases that may be granted on and covering said lands, or any part thereof to which the grantee herein would othererwise be entitled, and that any such money shall be applied as a credit to the total sum of $350,000.00 herein provided to be paid to the grantors herein and that when such total sum of $350,000.00 shall so be paid to the grantors herein from either of the above sources, then this conveyance shall become absolute and any and all other interests in said lands herein conveyed shall become absolutely the property of the grantee herein, free and clear of any liens, incumbrances or reservations, by reason of the exceptions and reservations-herein contained.
“To have and to hold the above described property, together with all and singular the' rights and appurtenances thereto in anywise .'belonging, unto the said Frank But-train,' his heirs and assigns forever, and. we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend..all and singular the property and property;'mghts herein conveyed unto the said Frank Butt'ram, his heirs and assigns forever, against every 'person whomsoever lawfully claiming' or to claim the same or any part thereof, but subject to the provisions and reservations of .this contract, as herein set out.” ,
It was stipulated by the parties that of the $350,000 to be paid under an above set out provision approximately $153,000 had been paid. The terms of the above-mentioned instrument do not indicate that the transaction it evidenced was connected with a sale by the grantors in that instrument of any other interest in the land described; but evidence disclosed that by a written contract 'dated February 6, 1928, those grantors contracted to sell and convey to appellant and others an undivided one-half interest in all the oil, gas, minerals, and mineral rights in the same lands, it being provided that one-half of sueh interest, being an undivided one-fourth interest in sueh oil, etc., was to be sold and conveyed for the consideration of $250,000 in cash, and $25,000 in cash payable on or before February 1, 1929; and evidence also showed that by a deed of the same date as that of the first above-mentioned instrument the grantors therein conveyed to the appellant an undivided one-eighth interest in all oil, g’as, and oilier minerals in the above-described lands, that deed containing an acknowledgment by the grantors of their receipt of the consideration for the interest thereby conveyed. It appeared that one-half of the mineral interest disposed of by those grantors was paid for, mostly in cash. It also appeared that under the terms of the sale evidenced by the first above-mentioned instrument, in the event of the mineral interest which was the subject of that sale producing or yielding the amount stipulated to be paid to the vendors from that source, they would get for that interest substantially more than the price for which they sold to the appellant another like mineral interest in the same lands. It was stipulated by the parties that for the fiscal tax years of 1929i and 1930 Gray county levied and assessed taxes against all the mineral interests mentioned in said contract, and that no controversy exists with respect to the taxes against sueh mineral interests except as to the interest described in the first above-mentioned instrument. The instrument hereinafter referred to is the one first above mentioned.
For the appellant it was contended that the interest in the described land acquired by him under the instrument referred to was not such a one as was subject to be taxed.
Under the Constitution and statutes of Texas all property, real, personal, or mixed, except such as is expressly exempted, is subject to taxation. Constitution of Texas, .Art. 8, § 11; Revised Civil Statutes of Texas (1925) art. 7145. “Real propei’ty for the purpose of taxation, shall be (Jonstrued to include the land itself, * * *. and all the rights and privileges belonging or in any wise appertaining thereto, and all mines, minerals, quarries and fossils in and under the same.” Revised Civil Statutes of Texas (1925) art. 7146. A conveyance of an undivided interest in and to all the oil, gas, and other minerals in, under, or that may be produced from described land, conveys an interest in realty which is subject to taxation in the hands of the grantee separate from the interest m such, land retained by the grantor. Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989.
It is plain that the above referred to instrument conveyed to the grantee, the appellant, a taxable interest in the described land, unless it was deprived of that effect by the exceptions and reservations therein contained. What the grantors excepted and reserved to themselves “until the grantors herein shall have been paid and shall have ree ceived from such source the sum of three hundred and fifty thousand ($350,000.00) Dollars,” was “all of the oil, gas and casing-head gas produced, saved and marketed” from the described interest, any rentals that may be paid under the terms of a,ny existing or future leases covering any part of the described lands, and any and all down or bonus moneys that may be paid for any future leases that may be granted on and covering said lands, or any part thereof. Those exceptions and reservations fell short of covering the entire interest which was conveyed to the appellant by the instrument. Substantial proprietory rights covered by Hie conveyance to the appellant were not within the exceptions and reservations. His right of ingress and ogress at all times to, from, and upon the described lands for the purpose of mining, drilling, exploring, and developiaig -said lands for oil, gas, and other minerals and removing the same therefrom, was not affected; any limitation or restriction to which the exercise of that right was subject at and after the date of the execution of the conveyance being the result, not of any exception or reservation made in favor of the grantors, but of previously granted oil and gas leases covering described lands.
The right of the grantee to- make new leases in the event of the termination, by cancellation, forfeiture, or otherwise, of those in force at the time the conveyance was executed, was not suspended while the whole or any part of the agreed price remained unpaid. But the existence of such rights in the grantee not covered by exceptions and reservations in favor of the grantors was not necessary to make the interest acquired by the grantee a taxable one. Texas decisions are to the effect that upon a sale and conveyance of land or an interest therein the subject of the sale becomes the property of the vendee for purposes of taxation, though the sale bo on credit and title is retained in the vendor until the agreed price is paid. Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S. W. 296, 29 A. L. R. 607; Harvey v. Provident Inv. Co. (Tex. Civ. App.) 156 S. W. 1127; Taber v. State, 38 Tex. Civ. App. 235, 85 S. W. 835.
It is not a-n uncommon incident of a sale by the terms of which the agreed price, in whole or in part, is not presently payable, for the seller, during a considerable period after the sale is consummated, to he entitled to be paid on, the price as much as, -or more than, the thing sold yields or produces during that period. As between the buyer and others than the seller, the buyer is not kept from being the owner of the thing sold by the seller’s retention of the right to receive what that thing yields or produces until there shall be realized from that source what is owing on the agreed price.
Contentions in behalf of the appellant that the instrument in question conferred on him a mere option to acquire the described interest, or that under that instrument the acquisition by him of a taxable interest in the described land was dependent on the performance or happening of a condition precedent, the payment in full of the agreed price, are not sustainable. That instrument had the effect of making the stated undivided one-eighth interest the property of the appellant for purposes of taxation, though the grantors retained the right to get what that interest might produce or yield until it amounted to $350,000. The right retained by the vendors was a means provided for bringing about the payment of the stipulated price of the interest sold and conveyed; the vendee, the appellant, not being personally obligated to pay that price. The appellant had title against every one except his vendors, and his interest was a taxable one. Harvey v. Provident Inv. C'o., supra. The court did not err in denying the injunctive relief prayed for.
The decree is affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. | [] | [
0
] | songer_r_fed |
THE PRESIDENTE WILSON. UNITED STATES v. PHELPS BROS. & CO.
No. 256.
Circuit Court of Appeals, Second Circuit.
March 14, 1932.
Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Delbert M. Tibbetts, of New York City, of counsel), for appellant.
George Z. Medalie, U. S. Atty., of New York City (Mary R. Towle, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
The libellant proved to the satisfaction of the judge that the ship had failed to prevent the landing of five of her complement of alien passengers at the place designated by immigration officers. In the view we take it will be unnecessary to consider the evidence by which these facts were established, because we think that on the record before' us there was no basis for a libel in the admiralty. The claimant is an Italian corporation, operating a line of steamers between New York and Italian ports; it “maintained an office in the City of New York, had in said office representatives upon whom process could have been served and was financially responsible.” So the judge found, though the evidence scarcely bears out the finding. However, the libellant has not complained, and we are to assume that it states the facts, perhaps as agreed upon. We understand by it that the company was doing such continuous business in New York as to make it “present,” in the sense that it was subject to civil process. The Eighth circuit has held generally that a foreign corporation may be brought to trial on a criminal prosecution by proper summons (John Gund Brewing Co. v. U. S., 204 F. 17); and several District Courts have done the same [U. S. v. Standard Oil Co. (D. C.) 154 F. 728; U. S. v. Va. Car. Chem. Co. (C. C.) 163 F. 66; U. S. v. Nat. Malleable & Steel Castings Co. (D. C.) 6 F.(2d) 40], These decisions were apparently approved in Albrecht v. U. S., 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505. Arguendo we shall not go so far, but will assume no more than that when “present,” it may be prosecuted; so far at any rate there is no doubt. In view of the fact that the issue appears not to have been fully litigated, we will, however, allow the libellant a new hearing to meet the issue, if it wishes.
Subdivision (a) of section ten, as amended by Act May 26, 1924, c. 190, § 27 (8 USCA § 146), makes guilty of a misdemeanor, punishable by imprisonment and a fine of between two hundred and a thousand dollars, any “person, owner, master, officer, or agent” who fails to prevent the landing of an alien. It then proceeds: “If in the opinion of the Secretary of Labor, it is impracticable or inconvenient to prosecute” the offender, he “shall be liable to a penalty of $1,000, which shall be a lien upon the vessel * * and such vessel shall be libeled.” In the case at bar the Assistant Commissioner General of Immigration wrote to the Commissioner of Immigration at New York: “It is felt that there is a violation of law and that it is impracticable or inconvenient to prosecute.” As is so often the case with us all, we are to suppose that an opinion followed upon this feeling, and we assume that a prima facie ease was made out for proceeding by libel. We do not think that the statute put that opinion beyond examination, in spite of the comprehensiveness of the phrase, “impracticable or inconvenient.” The option was given to meet those cases when an arrest of the ship was the only convenient way to pursue the offence. A foreign line without any permanent or continuous footing in the United States may be troublesome to reach; its ships come and go, leaving no responsible persons behind; unless they are caught in port their owners may escape altogether, or the authorities must wait their chance till the same master returns, or they happen to catch a guilty agent or officer. These impediments are not to be suffered, and the Secretary must decide how far the delays and doubts make prosecution inconvenient. But his choice does not depend merely upon a preference for a suit in the admiralty as against a criminal information, nor is he permitted to avoid a jury because of greater uncertainties of success. That would give him a choice incompatible with the primary purpose disclosed, that the persons at fault should be prosecuted.
Whether his decision is reviewable at all is another matter. We agree that it is conclusive until challenged; his acts enjoy the usual presumption that he has not exceeded his powers. That does not alone put them beyond judicial inquiry. When Congress intended so much, as for example in section 20 of the Act of 1917 (8 USCA § 156), it used the phrase, “at the option of the. Secretary,” though Lazzaro v. Weedin, 4 F.(2d) 704 (C. C. A. 9), suggests that there might be a reviewable abuse of even that discretion. The whole judicial review on habeas corpus of the power to exclude (section 17 of the Act of 1917 [8 USCA § 153]) is in the teeth of as peremptory language; that is, that the decision of the boards of special inquiry “shall be final.” So too is the power to deport (section 19 of the Act of 1917 [8 USCA § 155]). Indeed under section 19, in the ease of those who claim citizenship, the Supreme Court has taken the issue entirely out of the hands of the administrative officers. Ng Fung Ho v. White, 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938. Similarly, orders of the Postmaster General excluding matter from the mails, though “final,” are reviewable when they are without any support in the facts. American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 S. Ct. 33, 47 L. Ed. 90.
On the other hand in Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 321, 29 S. Ct. 671, 53 L. Ed. 1013, the finding of the Secretary, based upon the certificate of his medical examiners that aliens were afflicted with contagious diseases whose existence could have been detected on embarkation, was held to be so absolute that the carrier might be deprived of a hearing. That was under section nine of the Act of 1903 (32 Stat. 1215), which gave the Secretary-power to impose the fine himself. The same rule no doubt applies to section six of the Quota Act of 1921, as added by Joint Resolution May 11, 1922, c. 187, 42 Stat. 540. Even so we have several times held that when the facts do not exist on which the power depends, the action is reviewable. Compagnie Francaise v. Elting (C. C. A.) 19 F.(2d) 773; U. S. v. Compagnie Generale Transatlantique (C. C. A.) 26 F.(2d) 195; Compagnie Generale Transatlantique v. U. S. (C. C. A.) 51 F.(2d) 1053; North German Lloyd v. Elting (C. C. A.) 54 F.(2d) 997. But this case does not arise under so stringent an enactment; Congress did not entrust the Secretary with power to impose fines for an escape of aliens; it provided alternative remedies for that offence, each judicial. His power was limited to a choice between these, based upon an objective standard; that choice was a part, so to say, of the procedure itself, and subject for that reason to such review as courts have over other procedural incidents. Even though his decision is irreviewable when the whole sanction is in his hands, we should assume the contrary, when he must resort to the courts.
The precise point appears never to have been ruled before, except in The Bremen (D. C.) 18 F.(2d) 960, a decision of the same judge who passed upon the case at bar. The query thrown out in The Nanking, 290 F. 769 (C. C. A. 9), has never been answered by the court which put it, and indicated no opinion at the time. The Coamo, 267 U. S. 220, 45 S. Ct. 237, 69 L. Ed. 582, does not touch it. Thus we are free to decide the ease upon principle, as we see it, and we hold that when it affirmatively appears that the owner is equally amenable to prosecution as to suit, there is no basis for choosing the second, and the Secretary’s opinion is not controlling. There are good antecedent reasons for so supposing. The duty imposed upon carriers was made absolute by the Act of 1917, and some latitude, in fact afforded by the upper and lower limits of punishment, became more imperative. Two hundred dollars is perhaps a drastic penalty when the carrier has done everything possible to pre vent the escape, but it is hardly oppressive; and Congress evidently meant to reserve the higher penalties for cases of neglect or connivance. But in a libel this cushion for the innocent is taken away (The Coamo, 267 U. S. 220, 45 S. Ct. 237, 69 L. Ed. 582); there is no latitude, and all must suffer alike. There is a plausible reason for this when the offender, though not at fault, keeps beyond reach; let him voluntarily subject himself to the ordinary processes, if he would raise his innocence to soften his punishment. But when he is here and so subject, and since the primary purpose was plainly to temper punishment in proper cases, it defeats the scheme to make the Secretary’s choice a fiat, independent of the actual facts. Indeed, it allows Him to oust the courts of just that jurisdiction which Congress intended them to have. We should have to find a stronger warrant in the language used than we can see, to exempt him from the scrutiny usual in such eases.
Decree reversed; cause remanded for further proceedings in conformity with the foregoing.' | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
1
] | songer_direct1 |
Theodore M. SPRINGFIELD, Appellant, v. UNITED STATES of America, Appellee.
No. 20424.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 11, 1968.
Decided Oct. 2, 1968.
Mr. Thomas A. Clingan, Jr., Washington, D. C., (appointed by this court) for appellant.
Mr. Carl S. Rauh, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Wright and Leventhal, Circuit Judges.
PER CURIAM:
Appellant was convicted of carnal knowledge of a girl under sixteen years of age. On brief, he argued that the instructions regarding the elements of the offense were defective, that the instructions on reasonable doubt were confusing and that there was insufficient evidence to corroborate the victim’s testimony. We have considered these contentions and find them without merit.
On oral argument a new issue was raised. Appellant contended for the first time that his case had been improperly treated as a capital one and that he had been prejudiced thereby. Appellant’s claim that his offense was not a capital one was based on the statutory language or, alternatively, on the proposition that capital punishment for statutory rape would constitute cruel and unusual punishment. Since oral argument yet another complication has been added. In United States v. Jackson, the Supreme Court held unconstitutional the penalty provisions of a statute which permitted only the jury to inflict capital punishment on the ground that these provisions inhibited defendants from exercising their Fifth Amendment right not to plead guilty and their Sixth Amendment right to a jury trial. The penalty provisions of the D.C. rape statute suffer from the same constitutional infirmity.
We conclude, however, that appellant was not prejudiced by the fact that his ease was treated as a capital one. Appellant’s allegations of prejudice are two. First he argues that he was prejudiced because people opposed to capital punishment were systematically excluded from the jury which found him guilty. But this contention was rejected in Witherspoon v. State of Illinois, and Bumper v. State of North Carolina, where the Supreme Court held that a jury from which people who opposed the death penalty were excluded could not impose the death sentence, but could determine guilt or innocence.
Appellant’s second claim is that because the jury improperly had the op-* tion to impose the death penalty it. may have compromised the verdict on guilt or innocence. In other words, some jurors who initially believed appellant was innocent may have agreed to find him guilty in return for other jurors’ giving up their demand for the death penalty.
On the facts of this case we find it overwhelmingly improbable that appellant was the victim of such a compromise. The prosecution never requested the death penalty, or even adverted to it. The trial judge gave it only a one-sentence mention in his charge to the jury. And the details of the crime were not such as to make it likely that the jurors seriously considered imposing the death penalty. Moreover, the evidence did not support a conviction for any lesser included offense, against which the jury might have been influenced by the judge’s passing mention of the death penalty. A statutory rape had been consummated, and the only real issue in the case was whether appellant was the perpetrator. On that question the evidence was compelling.
Since we find no prejudice, the decision below is affirmed.
. The case was treated as a capital one in that persons who opposed capital punishment were excluded from the jury and the jury was instructed that it could bring in the death penalty. Appellant was not given the death penalty, however.
. Appellant was convicted under D.C.Oode § 22-2S01, which provides:
Whoever has carnal knowledge of a female forcibly and against her will, or carnally knows and abuses a female child under sixteen years of age, shall be imprisoned for not more than thirty years: Provided, That in any case of rape the jury may add to their verdict, if it be guilty, the words ‘with the death penalty,’ in which case the punishment shall be death by electrocution: Provided further, That if the jury fail to agree as to the imnishment the verdict of guilty shall be received and the punishment shall be imprisonment as provided in this section.
Appellant contends that the proviso “in any case of rape” must refer to common law (forcible) rape if it is not redundant. But the fact that the entire chapter is entitled “rape” cuts against this interpretation.
In Sanselo v. United States, 44 App.D.C. 508 (1915), this court held that statutory rape was punishable by death.
. See Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (dissenting opinion of Goldberg, J.). Statu- . tory rapes occur very frequently and are rarely prosecuted.
. 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).
. Bailey v. United States, 128 U.S.App. D.C. 354, 389 F.2d 305 (decided Sept. 13, 1968).
. 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
. 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
. Cf. Bailey v. United States, supra note 5 (dissenting opinion of Faliy, J.). | What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. | What is the nature of the proceeding in the court of appeals for this case? | [
"decided by panel for first time (no indication of re-hearing or remand)",
"decided by panel after re-hearing (second time this case has been heard by this same panel)",
"decided by panel after remand from Supreme Court",
"decided by court en banc, after single panel decision",
"decided by court en banc, after multiple panel decisions",
"decided by court en banc, no prior panel decisions",
"decided by panel after remand to lower court",
"other",
"not ascertained"
] | [
0
] | songer_method |
Fred GILLIGAN; Van Hardesty, Plaintiffs-Appellants, v. CITY OF EMPORIA, KANSAS, Defendant-Appellee. League of Kansas Municipalities, Amicus Curiae.
No. 92-3217.
United States Court of Appeals, Tenth Circuit.
Feb. 19, 1993.
Daniel J. Markowitz and Michele I. Carroll of McDowell, Rice & Smith, Kansas City, MO, for plaintiffs-appellants.
Stanley E. Craven of Spencer Fane Britt & Browne, Kansas City, MO and Dale W. Bell of Helbert, Bell & Smith, Chartered, Emporia, KS, for defendant-appellee.
James M. Kaup of Gilmore & Bell, Topeka, KS, for amicus curiae League of Kansas Municipalities.
Before ANDERSON and EBEL, Circuit Judges, and BRIMMER, District Judge.
Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by designation.
EBEL, Circuit Judge.
Plaintiffs Gilligan and Hardesty brought a declaratory judgment action in the district court, seeking a ruling that mandatory “on-call” time which they spent in their employment with the City of Emporia, Kansas (the City), constituted compensable work hours under the Fair Labor Standards Act (FLSA) and that they were therefore entitled to overtime compensation pursuant to 29 U.S.C. § 207 (section 7 of the FLSA). The parties filed cross motions for summary judgment, and the district court granted the City’s motion, finding that plaintiffs were not entitled to overtime compensation for mandatory on-call hours. Plaintiffs appeal the district court’s grant of the City’s motion and the denial of their own motion.
Plaintiffs Gilligan and Hardesty are employed by the City in the water and sewer departments, respectively. In addition to their regular work hours and as a condition of their employment, plaintiffs are both required to be available to work on-call for certain time periods. Gilligan is claiming entitlement to overtime compensation for his on-call time from February 14, 1988, through February 5, 1989. During that period, Gilligan’s city job required that he perform on-call duty, with risk of discipline and legal action for failure to comply. The City supplied him with a pocket-size belt pager, and he was required to be accessible through the pager at all times while on call. Further on-call conditions imposed on Gilligan were that he was required to respond to a call within one hour and consumption of alcohol was prohibited. The requirement of accessibility through the pager dictated that Gilligan stay within the geographical limits of the pager, or leave a telephone number where he could be reached. Gilligan testified that he believed he was restricted to staying within the Emporia city limits. Aside from these literal requirements and prohibitions, Gilligan was prohibited from participating in certain activities which would keep him from hearing his beeper, and he avoided paid-entrance activities from which he could be called away, as well as certain other activities from which the risk of being called away made him uncomfortable or fearful. Gilligan also believed that he was required to use a city vehicle to respond to calls, but could not use the vehicle for personal reasons, which further inhibited his on-call time. He was allowed to trade on-call time with other employees, with prior supervisor approval.
Hardesty, like Gilligan, was given a small pager, so that he was not required to be by a telephone at all times. The conditions placed upon Hardesty were as follows: (1) he must respond to a call within thirty minutes; (2) he could not consume alcoholic beverages; (3) he was subject to discipline for failure to respond to a call; and (4) he was required to stay within the limits of his pager, or leave a telephone number where he could be reached but, like Gilligan, Hardesty believed he was restricted to the city limits. Aside from these express conditions, Hardesty was prohibited from pursuing activities which would prevent him from hearing his pager. He also had reservations similar to Gilligan’s about participating in certain activities from which he could be called away.
We review the district court’s grant or denial of summary judgment de novo. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, — U.S. —, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). We apply the same legal standard as the district court, and we view the evidence in the light most favorable to the party opposing the motion. If there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law, summary judgment is appropriate. Id.; Fed.R.Civ.P. 56(c).
This court has followed the Supreme Court’s lead in stating that
the test for whether an employee’s time constitutes working time is whether the ‘time is spent predominantly for the employer’s benefit or for the employee’s.’ Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944). That test requires consideration of the agreement between the parties, the nature and extent of the restrictions, the relationship between the services rendered and the on-call time, and all surrounding circumstances. Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944).
Boehm v. Kansas City Power & Light Co., 868 F.2d 1182, 1185 (10th Cir.1989). In addition, regulations promulgated by the Department of Labor lend insight into the determination of what constitutes compensable time. The regulations provide that on-call time is compensable if the employee is required to remain on the employer’s premises, 29 C.F.R. § 785.17, and if on-call time spent off the premises is so restricted that the employee cannot use the time effectively for personal pursuits, 29 C.F.R. § 553.221(d). “ ‘[Resolution of the matter involve[s] determining the degree to which the employee could engage in personal activity while subject to being called.’ ” Renfro v. City of Emporia, 948 F.2d 1529, 1537 (10th Cir.1991) (quoting Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 655 (10th Cir.1988)), cert. dismissed, — U.S. —, 112 S.Ct. 1310, 117 L.Ed.2d 510 (1992). “Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.” Skidmore, 323 U.S. at 137, 65 S.Ct. at 163.
Plaintiffs argue that this case is controlled by our decision in Renfro. We disagree. In Renfro, we held that the district court did not err in determining that the plaintiff firefighters were entitled to compensation under the FLSA while on call. Renfro, 948 F.2d at 1538. The firefighters, although not required to remain on the premises while on call, were required to report within twenty minutes of being called back and were called back an average of three to five times a day. Id. at 1537. The frequency of the call backs in that case was a pivotal factor in our determination that the firefighters’ on-call time was compensable. Id. at 1537-38. Likewise, we noted in Renfro that the frequency of call backs was the factor which the Renfro district court cited as distinguishing that case from other cases which had previously held that on-call time was not compensable. Id. at 1532-33. In contrast, plaintiffs in this case were called back to duty on average less than one time per day. Obviously, these plaintiffs have significantly less interference with personal pursuits than did the firefighters in Renfro, simply by virtue of the lower frequency at which they were called back. Further, Gilligan was given one hour to respond to a call, and Hardesty was required to respond within thirty minutes. The longer response time given these plaintiffs means that their personal time is less restricted while on call, yet another distinction from Renfro.
This court has held in three prior cases that time spent on-call is not compensable as overtime. See Armitage v. City of Emporia, 982 F.2d 430 at 432 (10th Cir.1992); Boehm, 868 F.2d at 1185; Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 656 (10th Cir.1988). In each of those cases, as in the case before us, restrictions on the employee’s on-call time were not so burdensome as to render it time predominantly spent for the benefit of the employer.
In Armitage, police detectives “were allowed to do as they pleased while on call, as long as they remained sober, could be reached by beeper and were able to report to duty within twenty minutes of responding to the page.” Armitage, 982 F.2d at 432. In addition, the detectives were called in on average less than two times a week. Id. Given those facts, we held that the on-call time did not prohibit the detectives from personal pursuits and that, “to require compensation under these facts would require that all on call employees be paid for standby time,” which would be a major change in the FLSA law. Id. We declined to make such a requirement in that case, and we decline to do so in this factually similar case.
In Boehm, the plaintiffs were free to leave the company premises and to use their on-call time as they pleased, so long as they could be reached and report for work one-third of the time they were called. Boehm, 868 F.2d at 1185. We held in that case that “although plaintiffs spent some time at home that they otherwise would not have spent because of the company’s on-call policy,” the time was not spent predominantly for the employer’s benefit. Id. Similarly, the employees in Norton were not required to remain on the employer’s premises, but were allowed to pursue personal activities, with the restriction that they be accessible by phone or pager. Norton, 839 F.2d at 655-66. We acknowledged in Norton that even though on-call time required restrictions on the employees’ personal time, the restrictions were not so great as to constitute working time. Id. at 656.
The case before us is factually similar to Armitage, Boehm, and Norton, and we believe that those cases control our decision in this case. Even though plaintiffs’ activities may be somewhat restricted while they are on call, the restrictions are not so prohibitive that it can be said that their on-call time is spent predominantly for the employer’s benefit. In addition, plaintiffs are free to pursue personal activities with little interference while waiting to be called. Consequently, we hold that, under the facts of this case, plaintiffs’ personal pursuits are not restricted to such a degree as to require that plaintiffs’ on-call time be compensated as overtime under the FLSA.
As an alternative holding, the district court concluded that Gilligan’s claim for overtime compensation was barred by the statute of limitations. “Ordinary violations of the FLSA are subject to the general 2-year statute of limitations. To obtain the benefit of the 3-year exception, the [employee] must prove that the employer’s conduct was willful....” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135, 108 S.Ct. 1677, 1682, 100 L.Ed.2d 115 (1988). To constitute willful conduct, the employer must either know or show reckless disregard for whether its conduct was prohibited by the statute. Id. at 133, 108 S.Ct. at 1681. Gilligan has not met his burden of showing that the City’s conduct in refusing overtime compensation for on-call time was willful. In fact, we have reviewed the record and he did not present any evidence whatsoever to the district court of the City’s willfulness. Therefore, Gilligan’s claims for overtime compensation are governed by the two-year limitations period; the district court was correct in its determination that his claim is barred.
The judgment of the United States District Court for the District of Kansas is, therefore, AFFIRMED.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "other". Your task is to determine which specific substate government agency best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "other". Which specific substate government agency best describes this litigant? | [
"City of, county of, etc. - in corporate capacity - criminal case",
"city of, county of, etc. - in corporate capacity - civil case",
"Other sub-state activity",
"not ascertained"
] | [
1
] | songer_respond1_4_3 |
BUCHER v. VANCE et al.
Circuit Court of Appeals, Seventh Circuit.
December 13, 1929.
No. 4230.
A. D. Gash, of Chicago, 111., for appellant.
Allan Healy, of Chicago, 111., for appellees.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal is from a decree of the District Court dismissing as to appellee Bates a creditors’ bill, to which Bates was a party defendant, brought in the circuit court of Cook county, 111.,' and removed to the federal court by Bates.
Bueher had recovered in the state court a judgment for $1,301.75 against L. F. Vance, and execution thereon was returned unsatisfied.
In the United States District Court for the Northern District of Illinois there was pending a suit brought by Vance, in which, rmder order of the court, there had been paid to Bates, as the clerk of said District Court, a sum of money, of which the court ordered its clerk, Bates, to pay Vance the sum of $5,626.44. Pursuant to the order, Bates, as clerk, made and sent to Vance a check for that amount, which cheek Vance declined to accept, and returned it to Bates, leaving the possession of the fund unchanged.
Bucher filed his creditors’ bill in the state court, making Bates a party, seeking thus to subject the fund to the payment of his judgment against Vance.
The single issue here is whether funds so paid into and remaining under the control of the District Court can be reached by a creditors’ bill upon a judgment in another court.
Section 851, 28 USCA, makes provision for the payment of money into court and its deposit. Section 852 provides: “No money deposited as aforesaid shall be withdrawn except by order of the judge or judges of said court, respectively, in term or in vacation, to be signed by such judge or judges, and» to be entered and certified of record by the clerk; and every such order shall state the cause in or on account of which it is drawn.”
In Wayman v. Southard, 10 Wheat. (23 U. S.) 1, 23, 6 L. Ed. 253, it was said: “The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied.”
In Osborn v. United States, 91 U. S. 474, 479, 23 L. Ed. 388, it was said: “The power of the court over moneys belonging to its registry continues until they are distributed pursuant to final decrees in the eases in which the moneys are paid. If from any cause they are previously withdrawn from the registry without authority of law, the court can, by summary proceedings, compel their restitution.”
Notwithstanding the issuance ' of the check, the money thus paid into court was not distributed until it reached the hand of the party to whom the court ordered it paid. The making of the order and the issuing of the cheek were not of themselves a distribution. They were steps which would lead to ultimate distribution by actual payment of the fund pursuant to the court’s order.
The trend of federal decisions has long been quite strongly against the right to subject such a fund to control by the process of another court, or through other proceedings.
In Re Lottawanna, 20 Wall. (87 U. S.) 201, 224, 22 L. Ed. 259, it was sought by an independent proceeding to reach a fund in the registry of the court. The court refused to subject the fund to seizure for the satisfaction of a judgment against its owner, giving as reasons for its conclusion:
“1. Because the fund, from its very nature, is not subject to attachment either, by the process of foreign attachment or of garnishment, as it is held in trust by the court to be delivered to whom it may belong, after hearing and adjudication by the court.
“2. Because the proceeds in such a case are not by law in the hands of the clerk nor of the judge, nor is the fund subject to the control of the clerk. Moneys in the registry of the Federal courts are required by the act of Congress to be deposited with the Treasurer of the United States, or an assistant treasurer or designated depositary, in the name or to the credit of such court, and the provision is that no money deposited as aforesaid shall be withdrawn except by the order of the judge or judges of said-. eourts respectively, in term time or vacation, to be signed by such judge or judges and to be entered and certified of record by the clerk. Regulations substantially to the same effect have existed in the acts of Congress for more than half a century, and within that period it is presumed that no proceeding to attach such a fund by a creditor of the owner has ever been sustained.”
In Jones v. Merchants’ Nat. Bank et al. (1 C. C. A.) 76 F. 683, 687, 35 L. R. A. 698, it was held that bills would not lie to reach funds in the hands of a United States District Court or other depositaries of the court. In the opinion it was said: “The futility of all such- bills is sufficient to defeat them, because, notwithstanding the pendency of one of them, the court having control of a fund may order the entire disposition of it summarily, thus leaving nothing for the bill to act on. A bill which can reach no result except by staying the ordinary and rightful exercise of the essential functions of the court is, by its character, so futile that it ought to be dismissed for that reason alone; but it is enough to say that the ruie that bills of this sort will not be tolerated is so fundamental, and so necessary to the full exercise of judicial functions, that the reasons on which it rests need not be further stated.” To like effect may be cited In re Forsyth (D. C.) 78 F. 296; United States v. Eisenbeis et al. (D. C.) 88 F. 4, and Martin Co. v. Shannonhouse (D. C.) 203 F. 517.
In 5 Pomeroy Eq. Jur., 2d Ed. 1919, § 2304 (881), it is stated that: “Money in custodia legis, iu the hands of a clerk of court in his official capacity, cannot be made the subject of a creditors’ bill.”
Upon authority, therefore, as well as upon principle, we are satisfied that, in the absence of federal statutory authorization, this fund, in the registry of the District Court, and under its control, could not be subjected to seizure on behalf of creditors of the owner.
The District Court properly dismissed the creditors’ hill as to'Clerk Bates, and its decree is affirmed. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". | What is the specific issue in the case within the general category of "economic activity and regulation"? | [
"taxes, patents, copyright",
"torts",
"commercial disputes",
"bankruptcy, antitrust, securities",
"misc economic regulation and benefits",
"property disputes",
"other"
] | [
3
] | songer_casetyp1_7-2 |
CITY OF NEW YORK and the Industrial Commissioner of the State of New York, Appellants, v. UNITED STATES of America, Appellee.
No. 29, Docket 26098.
United States Court of Appeals Second Circuit.
Argued Sept. 27,1960.
Decided Oct. 31,1960.
Cornelius F. Roche, New York City (Charles H. Tenney, Corporation Counsel, New York City, Stanley Buchsbaum, Brooklyn, N. Y., of counsel, on the brief), for appellant City of New York.
Samuel Stern, New York City (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Paxton Blair, Sol. Gen., Albany, and Leonard H. Rossen, Junior Atty., New York City, on the brief), for appellant Industrial Commissioner of State of New York.
Douglas A. Kahn, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, Department of Justice, Washington, D. C., on the brief), for appellee.
Before LUMBARD, Chief Judge, and TUTTLE and FRIENDLY, Circuit Judges.
Sitting by designation.
LUMBARD, Chief Judge.
This case is before us on appeal from an order entered by the District Court for the Eastern District of New York, confirming the order of a referee in bankruptcy granting lien status under § 67, sub. b of the Bankruptcy Act, 11 U.S. C.A. § 107, sub. b to certain claims of the United States for tax deficiencies. An involuntary petition in bankruptcy had been filed against the Moderneer Footwear Co. on February 26, 1958, by creditors claiming for unpaid wages and severance pay, and the company was sub■sequently declared a bankrupt and a trustee appointed.
Within four months prior to the filing of the petition, a general assignment for the benefit of creditors made by the bankrupt fourteen days earlier was perfected by filing the assignment with the New York Supreme Court of Kings County, under New York Debtor and Creditor Law, McKinney’s Consol.Laws, c. 12, § 3. Subsequent to such assignment, on November 22, 1957, the United States assessed tax deficiencies against the company in the amount of $4,826.64, for Federal Insurance Contributions Act, 26 U.S.C.A. § 3101 et seq. and withholding taxes due for the third quarter of 1957. This claim was in addition to an earlier assessment by the United States made on October 8, 1957, for $2,067.53 plus interest, due for FICA and withholding taxes for the second quarter of 1957. On the very date on which the bankruptcy petition was filed, the federal government made a third assessment in the amount of $277.39 for Federal Unemployment Tax Act, 26 U.S.C.A. §§ 3301-3308 obligations, and finally, on December 19,1958, it assessed an additional $834.21 as a further tax deficiency. The United States now seeks to have all but the last of these claims granted lien status under § 67, sub. b of the Bankruptcy Act, 11 U.S.C.A. § 107, sub. b, which upholds the validity of “statutory liens for taxes and debts owing to the United States * * * created or recognized by the laws of the United States or of any state * * * even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition initiating a proceeding under this title by or against him.” The United States’ claim is opposed by the New York State Industrial Commissioner and the City of New York, each of which have filed tax claims in the bankruptcy proceedings.
The United States’ contention that a lien had been perfected prior to the bankruptcy proceedings is based on § 6321 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6321, the relevant portion of which reads as follows:
Ҥ 6321. Lien for Taxes.
“If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount * * * shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”
Under § 6322, 26 U.S.C.A. § 6322, the lien arises at the time the assessment is made. As of that moment, therefore, if there exist property or rights to property “belonging” to the debtor, the lien will attach. In determining the nature and extent of the debt- or’s ownership, however, we are remitted to state law since § 6321 “creates no property rights but merely attaches consequences, federally defined, to rights created under state law.” United States v. Bess, 1958, 357 U.S. 51, 55, 78 S.Ct. 1054, 1057, 12 L.Ed.2d 1135; see Aquilino v. United States, 1960, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365; United States v. Durham Lumber Co., 1960, 363 U.S. 522, 80 S.Ct. 1282, 4 L.Ed.2d 1371; Fidelity & Deposit Co. of Maryland v. New York City Housing Authority, 2 Cir., 1957, 241 F.2d 142.
Under long-standing New York decisional law, an assignee for the benefit of creditors takes title to the debtor’s estate and holds as trustee for all the creditors. Brown v. Guthrie, 1888, 110 N.Y. 435, 18 N.E. 254; Brennan v. Willson, 1877, 71 N.Y. 502. The court supervises the trustee and orders distribution of the settled estate to the creditors,.N.Y. Debtor and Creditor Law, §§ 8, 15, 20, so that the estate is said to be in custodia legis. In Matter of John C. Creveling & Son Corp., 259 App.Div. 351, 353, 19 N. Y.S.2d 378, affirmed, 1940, 283 N.Y. 760, 28 N.E.2d 975; Florence Trading Corp. v. Rosenberg, 2 Cir., 1942, 128 F.2d 557. All that the assignor owns after his assignment is completed is the right to have refunded to him whatever remains after the creditors have been satisfied. Mills v. Husson, 1893, 140 N.Y. 99, 35 N. E. 422.
The § 6321 lien attaches only to the extent of the taxpayer’s property interest, United States v. Burgo, 3 Cir., 1949, 175 F.2d 196, and is not a proper basis for a levy on contingent rights before they come into being. United States v. Long Island Drug Co., 2 Cir., 1940, 115 F.2d 983. Thus, the property, after it had been assigned by the taxpayer, could not be subjected to the government’s lien. Nor is the fact that some New York decisions have upheld the validity of a mechanic’s lien filed after a general assignment any support for the proposition that the federal government’s lien is valid on the facts before us. A case such as John P. Kane Co. v. Kinney, 1903, 174 N.Y. 69, 66 N.E. 619, indicates merely that the New York courts have recognized a “preferential statutory right, in the nature of an unperfected equitable lien, in favor of the laborer, mechanic, materialman, or subcontractor.” Id., 174 N.Y. at page 73, 66 N.E. at page 619. Whatever policy reasons impel the New York courts to impress such a security interest on the debtor’s estate even before the creditor satisfies the statutory prerequisites are not binding on this court or apposite when it is not a laborer but the federal government which is pressing its claim. In none of the mechanics’ lien cases do the New York courts base their decision upholding the lien on an assertion that the assignor retained property rights after his general assignment had been perfected. Since it is only if such rights still belong to him that § 6321 impresses a lien on the taxpayer’s realty or personalty, the general assignment barred a subsequent tax lien.
The United States, however, contends that § 70, sub. a(8) of the Bankruptcy Act governs, despite local property law, once a petition in bankruptcy is filed. That subsection, now 11 U.S.C.A. § 110, sub. a(8), reads, in relevant portion, as follows:
“The trustee of the estate of a bankrupt * * * upon his * * * appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title * * * to all of the following kinds of property wherever located * * * (8) property held by an assignee for the benefit of creditors appointed under an assignment which constituted an act of bankruptcy, which property shall, for the purposes of this title, be deemed to be held by the assignee as the agent of the bankrupt and shall be subject to the summary jurisdiction of the court.”
The United States maintains that since the present assignment was made within four months of bankruptcy it constituted an act of bankruptcy within § 3, sub. a(4) and § 3, sub. b of the Bankruptcy Act, 11 U.S.C.A. § 21, subs. a(4), b, so that upon filing of the petition the title residing in the assignee by virtue of the states’ debtor-and-creditor law was extinguished by the federal bankruptcy statute, and he held the property as a “naked bailee” for the bankrupt. Therefore, the federal government continues, the lien attached when the deficiency was assessed against the corporate taxpayer since the property then “belonged” to the corporation and was held in the custody of its agent.
If we could find a legitimate bankruptcy policy that is furthered by such a construction of § 70, sub. a(8), it might not be enough to say merely that the language of the statute gives no retroactive effect to this incursion on local property law; it directs that the property shall “be deemed to be held by the assignee as the agent of the bankrupt,” not that it should “be deemed to have been held by the assignee” as an agent. However, there is no reason to suppose that Congress intended retroactively to alter the situs of title to property generally assigned for creditors. The legislative history of the present § 70, sub. a(8) indicates that it was meant to be declaratory of existing law and merely to facilitate the summary jurisdiction of the bankruptcy court under § 2, sub. a(21), 11 U.S.C.A. § 11, sub. a (21) to require assignees to deliver property in their possession to the trustees in bankruptcy. See H.R.Rep. No. 1409, 75th Cong., 1st Sess. 34 (1937) ; Shor v. McGregor, 5 Cir., 1939, 108 F.2d 421; 1 Collier, Bankruptcy para. 2.78; 4 id. para. 70.38. Thus, it makes good sense to have title to the assigned estate revert to the bankrupt at the time when the petition in bankruptcy is filed, though not before, in order to prevent the assignee from maintaining that he is an adverse claimant and thus entitled to plenary proceedings. May v. Henderson, 1925, 268 U.S. 111, 115, 45 S.Ct. 456, 69 L.Ed. 870.
Indeed, a contrary rule would throw into confusion the usual procedures whereby a state protects creditors once a general assignment has been made. Since § 67, sub. c(2) of the Bankruptcy Act requires that statutory liens be pos-sessory in order to be valid under § 67, sub. b, the very purpose of a general assignment — that of preserving the debtors’ assets and shielding them from levy by the more diligent creditors, see Matter of S. Feldman & Co., 1933, 237 App.Div. 720, 262 N.Y.S. 681 — would be undermined were we to accept the United States’ contention. If the assignee holds retroactively as a mere agent, it would well behoove a private creditor with a statutory lien to levy upon the estate so assigned and then file a petition in bankruptcy. Under the rule the federal government would have us adopt, § 70, sub. a(8) would uphold a lien accompanied by such a levy if bankruptcy proceedings are begun within four months of the assignment. Thus, the creditor who is dissatisfied with the state’s insolvency procedure would not merely get the federal forum to which he is entitled by reason of the Bankruptcy Act, but would also be given, to the extent of his levy, a priority which he is not allowed under state law. Curiously enough, therefore, § 67, sub. b of the Bankruptcy Act, which was intended to preserve only those rights recognized under state law, would, in concert with the proposed construction of § 70, sub. a(8) and § 67, sub. c(2), grant more liberal priorities in the federal courts than would the state under its insolvency proceedings.
The government’s further contention that § 3466 of the Revised Statutes, 31 U.S.C.A. § 191, gives the United States’ tax claim a priority would be persuasive had the bankruptcy petition not been filed. However, the Bankruptcy Act did not incorporate the priority provisions of § 3466 and they do not apply in bankruptcy. Davis v. Pringle, 1925, 268 U.S. 315, 45 S.Ct. 549, 69 L.Ed. 974.
Reversed with instructions to treat $5,104.03 of the claim of the United States entered on April 10, 1958, plus all claims filed thereafter, as ordinary tax claims under § 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(4).
. The state claims $910.12 for unemployment insurance contributions and $25 for a corporate franchise tax. The city’s claim is for sales and business taxes in the amount of $747.82.
. This policy, apparently founded on a desire to ensure that formalities would not defeat the rights of laborers and materialmen, whose claims sound in unjust enrichment, extends even to bankruptcy and validates a mechanic’s lien filed after a bankruptcy petition. Gates & Co. v. John F. Stevens Construction Co., 1917, 220 N.Y. 38, 115 N.E. 22. Since a tax assessment which postdates bankruptcy would not give rise to a statutory lien under the Internal Revenue Code, the federal claim is obviously distinguishable from the laborer’s.
. E.g., Post & McCord v. City of New York, 1914, 86 Misc. 300, 148 N.Y.S. 568, affirmed 1915, 166 App.Div. 919, 152 N.Y. S. 1138; Matter of Marstan Plumbing Co., 1941, 176 Misc. 956, 28 N.Y.S.2d 190.
. Statutes authorizing general assignments for the benefit of creditors have been approved by the Supreme Court as consistent with the policy of the Bankruptcy Act. “[Qluite in harmony with the purposes of the federal act * * * [statutes] that are regulatory of such voluntary assignments serve to protect creditors against each other, and go to assure equality of distribution * * Pobreslo v. Joseph M. Boyd Co., 1933, 287 U.S. 518, 526, 53 S.Ct. 262, 264, 77 L.Ed. 469. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. | Did the interpretation of federal statute by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
1
] | songer_fedlaw |
AMERICAN LEGION POST NO. 90 OF VILLAGE OF MAMARONECK et al. v. FIRST NAT. BANK & TRUST CO. OF MAMARONECK et al.
No. 396.
Circuit Court of Appeals, Second Circuit.
July 22, 1940.
Burton C. Meighan, Jr., of New York City (Meighan & Necarsulmer and Louis A. Marchisio, all of New York City, and James S. May, of White Plains, N. Y., on, the brief), for plaintiffs-appellants.
Monroe J. Cahn, of White Plains, N. Y. (Lynch & Cahn and Harold M. Miller, all of White Plains, N. Y., on the brief), for defendants-appellees.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
CLARK, Circuit Judge.
In 1921, 83 citizens of the town of Mamaroneck subscribed a total sum of $15,641.75 towards the purchase of premises to be used for the erection of a Community House as a memorial to the veterans of the World War. Title to the land purchased was taken in the name of one McArdle, one of the subscribers to the fund. After this first flush civic spirit seems to have lagged somewhat, and funds were not forthcoming for the building of the house itself. In due time, therefore, decision was made by the subscribers to sell the premises, and by November, 1928, a purchaser was found for the land for the sale price of $160,000.
Meanwhile McArdle had died, and his wife, who took title to the property, deeded it to The First National Bank and Trust Company of Mamaroneck (the “old bank”) according to the arrangements which had been made on the advice of a title company for the proper effectuation of the contract of sale. The old bank accepted the conveyance, entered into the contract of purchase, eventually conveyed the property to the purchaser, and received back part of the purchase money in cash and a purchase money mortgage in the sum of $130,000 payable by March 1, 1930. Payments were made in due course, so that, by May IS, 1930, the old bank had received a final payment of the entire purchase sum, together with interest accruements. It made certain disbursements of expenses and payments on the principal to the subscribers. In January, 1932, the “new bank,” First National Bank of Mamaroneck, was organized to assume all the liabilities and obligations of the old bank; but it failed in January, 1933, at which time the Comptroller of the Currency found it to be insolvent and appointed a receiver for it. The old bank was likewise declared insolvent and a receiver appointed in February, 1934. The payments made against the account by the two banks totaled $102,318.81, leaving a balance on hand of $60,964.39, the amount here involved at the time of the failure of the new bank. The matter was before this court and these facts are recited in the case of Meeker v. Durey, 2 Cir., 92 F.2d 607, involving the issue of income tax liability on these funds. The present questions are whether the fund was held by the banks as a general deposit or as a trust, and if the latter, whether or ■ not certain securities set aside by the banks for their trust funds pursuant to statute may now be availed of for the payment of the balance due. The district court found only a general deposit and allowed plaintiffs merely their general claim.
The plaintiffs are a portion of the original subscribers .to the fund who are suing on behalf of themselves and all others similarly situated. The court below found that they were proper representatives of all the subscribers, and that this action was properly brought as a class suit under former Equity Rule 38, 28 U.S.C.A. following section 723, and Federal Rule 23, 28 U.S.C.A. following section 723c; that portion of the judgment below is not the subject of appeal. Nor is there appeal from so much of the judgment as allots to the subscribers a refund of income taxes in the amount of $20,188.99 secured by the receiver as a result of Meeker v. Durey, supra. In that case, which was a suit by the receiver of the new bank against the estate of the Collector of Internal Revenue, the plaintiff claimed a refund of taxes assessed against him as trustee or fiduciary in respect of this same fund. We held that the bank was not taxable as a fiduciary, since under New York law the deed to McArdle and the later deed to the bank gave rise only to a so-called passive trust; and we made an alternative ruling that even if the bank was a fiduciary, the income, consisting of gains on the sale, was not accumulated for the benefit, of unborn or uncertain persons. Hence the income, if any, was taxable to the subscribers, and' not to the bank.
The controlling statutory provisions in issue here are contained in a lengthy .'section of the Federal Reserve Act, § 11 (k), 12 U.S.C.A. § 248 (k), authorizing and empowering the Board of Governors of the Federal Reserve System to grant by special permit to a national bank applying therefor the right to act as trustee and in various other named representative capacities, including those of executor, administrator, or receiver, “or in any other fiduciary capacity” in which competing state banks may act. It is provided that national banks exercising the powers enumerated in this subsection “shall segregate all assets held in any fiduciary capacity from the general assets of the bank and shall keep a separate set of books and records showing in proper detail all transactions engaged in under authority of this subsection.” Then it is stated that “No national bank shall receive in its' trust department deposits of current funds subject to check or the deposit of checks, drafts, bills of exchange, or other items for collection or exchange purposes.” Next follows the provision specifically in issue: “Funds deposited or held in trust by the bank awaiting investment shall be carried in a separate account and ■ shall not be used by the bank in the conduct of its business unless it shall first set aside in the trust department United States bonds or other securities approved by the Board of Governors of the Federal Reserve System.” And the statute continues that in event of the bank’s failure the owners of the funds held in trust for investment shall have a lien on these securities so set apart, in addition to their claim against the estate of the bank.
In this case each of the banks here involved treated the funds received from the sale of the Community House property as part of its trust funds, carried the accounts thereof in its trust department, and set aside securities for the protection of this fund and its other trust funds. The method which was followed was not the allocating of separate securities of the bank to each trust fund, but merely the earmarking for the trust department of securities generally to cover the shifting balance due the trust department for all its trust funds. Since the assets of the bank set aside for the trust department are adequate to cover all the trust accounts, including the account now under discussion, it is obvious, and indeed not disputed, that the bank intended to protect this fund as a trust fund. The objections made are really three: that the fund was only a general deposit without priority, and the course of dealing indicates an intention that the bank should use the funds for its general purposes; that there was no agreement with the subscribers to hold the funds “for investment,” but only for distribution, thus taking the matter outside the quoted statute; and that, since no securities were set aside separately for .this particular fund, there were no securities available to which priority might attach.
1. We are clear that the hanks held the funds in a fiduciary capacity, and that the arrangement created something more than a general deposit. It is true that the court below made a specific finding of fact, which it repeated as a conclusion of law, that no agreement was at any time requested of, or made by, the old bank or the new bank that the said money should be held in trust or deposited in the trust department of the bank, or be invested on behalf of the contributors, or in any manner secured, with a further finding that the batiks carried the account in the trust department merely as a matter of convenience to themselves. There was testimony by the president of the old bank indicating that the funds had been received in trust, but this the court seems to have rejected. We think effect may he given to the finding to the extent of its holding that no express agreement as to the manner of carrying the fund was made; but a conclusion of law that this account was only a general deposit does not necessarily follow therefrom and is in truth at variance with other facts either admitted or clear of record.
As early as 1921 the McArdles executed a formal document expressly declaring that title to the property was held by Mr. Mc-Ardle “only as an intermediary” until it should be determined by the persons in charge of the Community House movement that it should be deeded to some one else, and they thereby agreed to deed the same when and how properly directed. From time to time thereafter McArdle was referred to as trustee of the Community House property. The bank, when it took title with full knowledge of this arrangement, necessarily did so as a similar “intermediary.” True, the language used seems to signify that McArdle first and the banks later were not to be express trustees. Indeed, it is made clear throughout that the subscribers to the fund or a committee thereof should give directions as to the disposition of the property. On the other hand, it is quite evident that these parties were acting as fiduciaries, and the characterization of the situation as a passive trust in our earlier decision seems the most apt designation. Certainly while the bank held title to the real estate it was something more than a mere debtor to the subscribers for the amount invested in the realty. When it collected the proceeds, it could hardly have altered its character to that of a mere debtor unless it acted in a manner clearly evidencing its intent to do so and unless the subscribers knew of and acquiesced in the change. Neither of these conditions is shown to have occurred.
Stress is placed upon the circumstance that the attorney for the subscribers, who was also attorney for the bank, requested deposit of tlie fund in the interest department of the hank, and later requested that the deposit be held so as to produce interest. But it is difficult to see why this circumstance, if it has any persuasive force, does not tend to indicate that the fund was held by the bank as a trust, rather than as a general deposit. A bank acting as trustee or fiduciary would be expected to produce an increment on funds in its hands. It would also naturally receive a fee for its services, as was the case here.
We turn to the “course of dealing” relied upon by the district court to show that the banks could use the funds for their general purposes. All incidents referred to seem either undecisive or even more suggestive of the fiduciary relationship than of the contrary. . First is the cii-cumstance just noted — that interest was credited at the rate of 3 per cent — a course which would seem to be more natural for trust funds than for general deposits. Next reference is made to the fact that the money was left with the bank for a long period of time. Such delay is explained by necessary incidents of the entire transaction, including the litigation with reference to income taxation; the delayed payments provided for in the contract of sale; the necessity of ascertaining who were the present representatives of the original subscribers, leading to the institution of a suit in the state court to determine such ownership; and the financial difficulties, the attempted reorganization, and the later receiverships of the banks. Finally, the large amounts disbursed 'from time to' time for expenses and attorney’s fees, directed by the committee, seem without particular significance. Of 'course, it was the committee, not the bank, which was in general charge of the transaction. But that, we think, goes no further than to show the relationship to be a passive, rather than an express, trust.
We conclude that, notwithstanding the district court’s finding, the account must be considered as one held by the banks in a fiduciary capacity, and not as a general account. In re Kountze Bros., 2 Cir., 103 F.2d 785, is not in point. There funds were deposited for a claimed special purpose, but we held the proof insufficient to show that there was an. intended segregation from the general accounts. There the private bankers did no.t hold the funds in a fiduciary capacity.
2. Perhaps more serious is the further claim that these were not funds held in trust “awaiting investment” and hence without the statute. We think, however, that this is too narrow a construction of the statute, and really defeats its intent. If trust funds held for investment are subject to the. statute, but trust funds held for distribution are only general assets of the bank, then we find a serious difference in result following from a very slight, even formalistic, change in the relations of the parties. It would be no great stretch to term this a fund held “for investment,” particularly since the desire of the subscribers for some increment on their funds was made so clear. It was not to be fully paid in for a year and a half; it was to bear interest at a substantial rate; it was subject to various difficulties of adjustment, including income tax litigation and other litigation which remained unsettled on the bank’s failure more than four years after the first receipts were had.
Moreover, a broader interpretation should be given to the statute. We think that the provisions for security include in general the fiduciary funds which the- bank is required to keep segregated from its general assets. Such, indeed, is the view taken by the Board of Governors of the Federal Reserve System in their Regulation F promulgated under the power to issue regulations granted by this same statute. This regulation provides that when funds received and held in the trust department of a national bank “awaiting investment or distribution” are deposited in the commercial or savings department of the bank to the credit of the trust department, security for the deposit must be provided in the shape of United States bonds or other specified assets of the bank. Defendants assert in their brief that this regulation was not called to the attention of the court below, and .that therefore we cannot take judicial notice of it. It seems, however, that, while an appellate court is not obligated to notice matters not brought to the attention of the trial court, Line v. Line, 119 Md. 403, 86 A. 1032, Ann.Cas.1914D, 192, yet it may take such notice where- necessary either to affirm, or to show the impropriety of, a decision below. Hunter v. New York, O & W. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L.R.A. 246. With respect to a regulation required by the statute for the carrying into effect of its terms, we should not hesitate to take judicial notice so far as is necessary. The point is not decisive here, since all we are saying is that the interpretation made by the Board of Governors of the Federal Reserve System accords with our own. It also accords with the conclusions reached in the other cases cited. Carcaba v. McNair, supra; Fesenmeyer v. Salt Springs Nat. Bank, supra; see also Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184.
3. We do not think the objection that the securities were provided for all the trust funds without definite segregation is sound, especially when asserted by the bank’s receiver. Regulation F above does not require segregation. Such a course, if required, would be a burdensome one, undoubtedly adding to the expense of carrying a trust account, particularly in the case of smaller trusts, We do not see how it adds very much to the security of the funds; it may indeed make each fund less secure by restricting the securities available to it in the event of the bank’s failure. Cf. Legis., 37 Col.L.Rev. 1384. At any rate we think the intent of the statute was complied with. This makes unnecessary consideration of the further question of tracing of the trust funds argued in the briefs.
Plaintiffs also argue that adjudication should be had as to securities totaling $20,000 on deposit with the Superintendent of Banks of the State of New York by the new bank for the benefit of its trust funds. While the problem as to such funds would seem identical with that before us, no issue was made as to them by the case below, and we do not pass upon the matter,
We think that the securities which the new bank had set aside for the purpose of protecting these funds were legally available for the intended purpose and should be so employed. The judgment is therefore reversed to provide for this re-sulk
This particular provision, has been held to he a prohibition against receiving deposits of third persons and not applicable to deposits' of funds held by the bank itself. Carcaba v. McNair, 5 Cir., 68 F.2d 795, certiorari denied 292 U.S. 646, 54 S.Ct. 780, 78 L.Ed. 1497; cf. Fesenmeyer v. Salt Springs Nat. Bank, 2 Cir., 92 F.2d 599; and see, also, Ticonic Nat. Bank v. Sprague, 1 Cir., 90 F.2d 641, affirmed 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926. | What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. | What is the circuit of the court that decided the case? | [
"First Circuit",
"Second Circuit",
"Third Circuit",
"Fourth Circuit",
"Fifth Circuit",
"Sixth Circuit",
"Seventh Circuit",
"Eighth Circuit",
"Ninth Circuit",
"Tenth Circuit",
"Eleventh Circuit",
"District of Columbia Circuit"
] | [
1
] | songer_circuit |
In the Matter of BROOKS & WOODINGTON, INC., Bankrupt. Appeal of CARNCROSS, SCHROEDER, STEIN, WILLIAMS, YOUNG & COMPANY, and David M. Johnson, C.P.A.’s.
Nos. 73-1119, 73-1120.
United States Court of Appeals, Seventh Circuit.
Resubmitted Nov. 5, 1974.
Decided Dec. 3, 1974.
Thomas G. Ragatz, James F. Lorimer, David F. Grams, Madison, Wis., for appellant.
Before CUMMINGS, PELL and STEVENS, Circuit Judges.
PELL, Circuit Judge.
These are consolidated appeals arising from bankruptcy proceedings and essentially involve the matter of the correctness of the disallowance of fees claimed by accountants and rendered for the trustee in bankruptcy for Brooks & Woodington, Inc.
The bankruptcy proceedings were initiated in 1965, first under Chapter XI of the Bankruptcy Act but shortly thereafter becoming a regular bankruptcy administration case. William T. Rieser was appointed as trustee and thereupon petitioned the referee for authority to hire an accountant and “to secure a certified audit, internal and external, so that the trustee may have and use full and comprehensive financial reports on the assets and liabilities of the above bankrupt corporation.” An order was entered authorizing the retention requested. However, the accountants selected apparently developed conflicts of interest and in March 1966, an order was entered authorizing the trustee to retain Gordon, Carncross & Associates and David M. Johnson, C.P.A., one of its partners, the present appellants, to bring the books up to date and to audit the same, “at the compensation rate set forth in the attached petition.”
The petition on which the referee’s order was based had indicated that Johnson would work one week on the books and would then estimate the cost and time to accomplish the task at hand. The schedule of fees specified $12.00 per hour for certified public accountants, $9.00 per hour for senior accountants, and $7.00 per hour for junior accountants. The appellants submitted in response to the order -based upon this petition their recommendations as to the work to be done and estimated the cost to be $7,500.00.
The trustee then filed a petition requesting authorization to proceed to perform the work of bringing the books up to date and auditing the same. The referee entered an order authorizing the retention of the appellants for the purposes indicated “at the same rate of compensation as previously ordered.” In addition, however, the order extended the authorized services to include auditing the books of subsidiary, affiliated and related corporations, partnerships, and trusts of the corporation and of Neil A. Woodington.
The picture of the situation which then developed, and which appraisal is not refuted in the record before us, as presented by the appellants is as follows: Appellants then proceeded with the tedious and enormously time-consuming task of reconstructing the records. The evidence disclosed that there was no conceivable way the total extent of the necessary services could have been originally estimated, without some great intimacy into the affairs of the bankrupt and all related parties, as the expanding chain of complexity continued to unfold as the interrelationships with other entities were explored. What was finally found to be essential, was the reconstruction from scratch of records from as far back as nine years for the bankrupt and ten related corporations, partnerships, and trusts. This reconstruction was based upon an analysis of incomplete, inaccurate, misleading, and fundamentally unsound records through third party records (e. g., bank records) relating to thousands of interwoven accounting transactions. The trustee in bankruptcy for Allied Development Corporation whose affairs were grossly intertwined with those of the bankrupt and who was by far its largest creditor, testified that the status of the records as to the intercompany account “were a mess. . . . hopelessly entangled.” The testimony further disclosed that the principals of the bankrupt and its related entities engaged in extensive check kiting and other transactions and fund transfers between entities that made their tracks nearly impossible to follow, probably purposely so. Appellants’ expert witness, Gordon Volz, a prominent and experienced C.P.A., testified that he had never seen a worse mess and the Trustee stated he did not believe “anything could have beat” the situation for complexity. It is now common knowledge and a matter of public record in this community that the tangled web spun by Mr. Woodington and his associates deceived many people and precipitated the extensive losses involved in this and related bankruptcy proceedings, and that Mr. Woodington went to prison after conviction of charges pertaining to his activities in connection with an affiliated corporation.
It further appears that bills were submitted regularly and these bills were accumulated in the referee’s file. Periodic payments with the approval of the referee were made to the appellants totaling some $34,000.00. At no time was there any limitation of the authority of the trustee to continue obtaining the services of the appellants. The trustee, in reliance upon the authority of the 1966 orders, continued to require the services of the appellants in attempting to reach solid ground in what was apparently a bottomless pit. There appears to be no claim of lack of quality of the work or that any of it was performed unnecessarily or in bad faith. When the services were substantially completed, the referee in letters and oral communications indicated an unfavorable attitude toward the payment of the remaining unpaid bills. The appellants thereupon petitioned the district court for an order to transfer the matter of the disposition of the claim for fees to another referee. This was denied and is the basis of appeal No. 73-1119. We do not, because of the disposition of appeal No. 73-1120, need to determine this issue.
When the matter came before the referee who had issued the original orders, the total of the unpaid accounting claims was approximately $23,000.00. Upon determining that the amount remaining for distribution to unsecured creditors was insufficient for any payment to that class of creditors if the balance of the accountants’ claims was allowed, the referee denied payment of the remainder of the claim. This was affirmed by the district court and this appeal followed.
The delay in the disposition of this appeal is regretted. However, the case as it is before us is an eloquent testimonial to the value of the adversary system. In April 1973 no brief in opposition to the appellants’ brief having been filed, this court ordered that the parties show cause why the appeal should not be submitted for decision without the filing of a brief in opposition by the appellees. No briefs were filed and in December 1973 it was ordered that the appeal be submitted to the court for decision without oral argument and without the filing of an appellees’ brief pursuant to Rule 2 of the Federal Rules of Appellate Procedure.
Again, however, because of the desirability of having opposing views presented to an appellate court, an order was entered in September 1974 notifying the trustee in bankruptcy and any other known interested parties that the court would accept opposing briefs.
On two occasions the trustee in bankruptcy by letter advised this court that he did not intend to file a brief as he fully supported the position of the appellants. A brief was filed pursuant to the September 1974 order by the trustee in bankruptcy for Allied Development Corporation which was the principal creditor of the present bankrupt. This brief was filed notwithstanding that upon the occasion of the hearing on fees before the referee, the trustee of Allied stated that he did not take a position either of supporting or opposing the fees in that he had an obligation as an attorney and trustee of Allied Corporation but also he stated he was “a decent human being and wanted to see that justice was done.”
Because of the policy underpinnings of this case, despite the fact that it was ordered considered in December 1973 without the filing of an appellees’ brief and despite the belatedness of the filing of the opposition brief, we have in rendering this opinion given full consideration to the brief in opposition as well as the opinions of both the referee and the district court. Although the case is being disposed of pursuant to Rule 2 without oral argument, it is not being handled on what amounts to a default basis.
In so doing, however, we also note the lack of contravention of appellants’ assertions as follows: The evidence disclosed that without such extensive accounting services the assets and obligations of the bankrupt could not have been ascertained, and but for such ascertainment the Trustee could have not realized the approximately $700,000.00 of assets actually collected, or determined the correct and legitimate claims. The existence of multiple security devices on various properties necessitated extensive accounting merely to straighten out the secured claims. The Trustee testified that the secured creditors would not have been paid in full without the accounting services.
The referee in his dispositive opinion stated he had “no reason to doubt that the subsequent accounting work of Carn-eross was done expertly and in good faith.” The motivational factor of the referee’s decision thus appears not to be that some benefit from the services was not realized by creditors, albeit secured ones, nor that the services were make-work but rather that an allowance of the claimed fees would mean, insofar as general creditors were concerned, administration expenses would consume the available estate, a result that might have been reachable in a Dickens’ novel but to be eschewed in bankruptcy court.
However, by the disposition the referee did reach, the general creditors will receive a 3.61% dividend. We have difficulty in regarding this as being little else than a token and as such adding no real deference to what has sometimes been termed the economical spirit of the bankruptcy act.
The district court in its opinion stated that “[i]t would not have been unreasonable ... if the referee had concluded that the petitioner’s entire claim be allowed,” but further the district court declined to conclude that it was unreasonable for the referee “to limit the petitioner to a fee which was about five times as great as petitioner’s initial estimate, and which equalled the sum estimated by petitioner after it had been deeply involved in the assignment for more than 10 months.”
While we agree with the district court that the scope of review of the referee’s decision is of limited scope and that it should not be overruled absent of error of law or a clearly erroneous finding of fact, we are of the opinion that the law here has been erroneously applied.
We also agree with the contention of the principal creditor asserted on this appeal that an appellate court not be quick to revise an allowance or disallowance of fees involving the exercise of discretion of the bankruptcy court, which has been concurred in by the district court, 3 Collier on Bankruptcy, Sec. 62.12(4), p. 1488. Our reluctance, inter alia, has been demonstrated by the continuing attempts to secure views in opposition to the appellants’ position and we have not hastily or lightly reached the decision we have but we are bound to do so as a matter of law.
Order No. 45, General Orders in Bankruptcy, provides in relevant part:
“No accountant shall be employed by a trustee . . . except upon an order of the court expressly fixing the amount of the compensation or the rate of measure thereof . . . ”
Here the trustee was authorized to have the services performed which were in fact performed at his direction. Those services were performed over a number of years time at the rate fixed by the court. There is no indication that the rate increased as we are aware professional hourly rates did during the period of time. At no time did the referee, as he readily could have, amend or rescind the standing order for the retention and utilization of the services. The district court would place the burden on the accountant to protect his rights by requesting a maximum level of compensation be inserted in the authorizing order. Order 45, however, is in the alternative of the amount of compensation or the rate or measure. Here the latter course was chosen and remained in ef-feet at all pertinent times. We do not read the Order as mandating both the rate and the maximum even though the referee presumably could impose in the authorizing order both controls.
The district court also would place the duty on the accountant, when it becomes apparent that cost estimates are to be exceeded, to secure the express approval of the referee before continuing work. This duty has greater arguable merit and it is noted here that the original estimate was woefully inadequate. However, the original estimate was based only upon the books of the bankrupt corporation and even upon those following an abbreviated period of one week of examination. The order subsequently entered extended the scope of the inquiry as we have noted and when despite the mounting costs, which were no secret to the referee or trustee, the trustee continued to require the accounting services, we do not find that duty arose to go to court to see if the unamended and rescinded order of authorization was still effective, particularly when the excess billings had been routinely paid.
We adopt the reasoning of the court in Killoren v. Boyd, Cronk & Co., 119 F.2d 1, 3 (8th Cir. 1941) in allowing compensation to the appellee accounting firm:
“He [the trustee] should not have permitted the firm to continue rendering services which he knew, or ought to have known, were being performed with the expectation that they would be paid for at the rate fixed by the court.”
In Killoren, as in the present case, a time-equated rate was fixed. On the other hand, in that ease there is some suggestion that the work or at least some of it was permissively performed insofar as the trustee was concerned while here the request for continuing services was that of the trustee. The Killoren trustee opposed the additional fees, here the trustee heartily approves of payment. We do note another difference between the two cases as we find no indication that in Killoren the payment of the fees would have eliminated a dividend to general creditors. Nevertheless, the court in Killoren did recognize the importance of economical administration as a factor for consideration :
“While it is of great importance that the expense of administering an insolvent estate should be kept to a minimum, it is equally important that those administering such an estate should live up to the letter and the spirit of engagements lawfully made with those whom they employ.” 119 F.2d at 4.
Counsel for the principal creditor in its brief argues that Killoren is not controlling. We agree but have accepted its reasoning. Counsel also argues that the reasoning should not be followed because Killoren involved a Chapter X Reorganization where by analogy the payment of the fee was in an attempt to keep the patient alive whereas in the present case there was a decedent and the fees were in the nature of funeral arrangements. While this is an interesting analogy, it fails to persuade us as the apparent purpose of the fees here obviously was to have an accountant work through the morass in an endeavor to secure and recover greater assets for ultimate distribution. In either case the reasoning of Killoren is applicable.
Turning to the question of whether the equality of importance continues in the situation where an administrative cost would prevent any general credit distribution, we are satisfied that it may, and upon the particular facts of the case before us, it does do so. In the present area of consideration, only general guidelines may be set, bearing in mind the spirit and purposes of the bankruptcy act and that the bankruptcy court within the jurisdiction granted by the Act operates as an equity court and upon equitable principles. See Southern Bell Telephone & Telegraph Co. v. Caldwell, 67 F.2d 802 (8th Cir. 1933).
Essentially, in this type of case, the particular facts of the ease, on a case-by-case approach, will control. On the narrow facts of the present case, and we do not determine whether it should have any wider application, we hold as a matter of law that the desire for some dividend to creditors, if that dividend is only of a token nature, should not override the commitment lawfully made with those employed on specific terms by the bankruptcy court. We do not agree with the district court in its suggestion that there was any ambiguity in the present commitment.
As stated by the court in Jacobowitz v. Double Seven Corp., 378 F.2d 405, 408 (9th Cir. 1967), “[w]e think that the economical spirit of the Bankruptcy Act does not require, nor justify, reducing a requested fee where, as here, by all other proper standards it is a fair and reasonable one.”
Finally, as we have noted hereinbe-fore, the claimant with the largest claim failed in the bankruptcy court to take a position in opposition of the allowance of the claim and as noted by the district court, “[n]o objections to the fees requested were filed.”
It is not our intent in any way to find fault with the referee who displayed a conscientious and commendable devotion to an important concept of bankruptcy administration; it is merely that we find that the concept, on the facts of this particular case, must give way to the court commitment.
In the original brief of the appellants, they sought “full allowance of the Appellants’ requested unpaid fees.” No mention was made of interest. In the 22 page reply brief filed in response to the belated brief of the principal creditor, the subject of interest was first mentioned as a part of the final paragraph of the reply brief:
“Thus, it is respectfully requested that the Opinion and Order from which this appeal was taken be reversed, and that the Appellants be determined to be entitled to the full fees requested, plus interest thereon and their costs and disbursements on this appeal.”
The brief contains no discussion of the law which might be applicable to the disposition of the interest issue.
There has been an informal indication that the assets here involved have been invested in interest-bearing securities or an interest-bearing account pending the outcome of this appeal. If this is indeed the fact, we recognize the existence of some equities for the allowance of interest. In general, where a fund in litigation is deposited in court, interest may be recoverable to the extent that the fund earns interest during such time. 47 C.J.S. Interest § 54.
This is not the ordinary case, however, of a fund deposited in court. This is a bankruptcy proceedings and rules of ordinary application may, and often do, give way before the Act. Our own examination of bankruptcy law has reflected no authority precisely in point. We find help, however, in the analogous situation of the allowance of interest on claims filed in bankruptcy. See Collier on Bankruptcy, 14th Ed. ft 63.16 (1972). Even though the claim is interest-bearing, “to cope in the most convenient and equitable manner with the debtor’s apparent insolvency,” the “law selects as decisive the date of the filing of the petition in bankruptcy,” and “disregards, for the purpose of liquidation, interest accruing beyond that date.” Id. at 1858. Of course, a different situation might exist if the estate were solvent. 8A C.J.S. Bankruptcy § 422.
In the light of the generally prevailing bankruptcy rule applicable to interest-bearing claims and particularly in view of the manner in which the claim for interest has been asserted in this particular appeal, we hold that the appellants are not to be allowed interest on the amount of their claim. They will, as the prevailing party, be entitled to costs of appeal.
Accordingly, the judgment affirming the referee’s action with regard to the accountants’ fees claimed by the appellants is vacated and the cause is remanded for the entry of an appropriate order allowing the claim in full.
Reversed and remanded.
. “[W]lien he came to Westminster Hall, we found that the day’s business was begun. Worse than that, we found such an unusual crowd in the court of chancery, that it was full to the door, and we could neither see nor hear what was passing within . . . It appeared to be something interesting for every one was pushing and striving to get nearer . . . ‘Mr. Kenge,’ said Allan, appearing enlightened all in a moment. ‘Excuse me, our time presses. Ho I understand that the whole estate is found to have been absorbed in costs?’ ‘Hem! I believe so,’ returned Mr. Kenge. ‘Mr. Vholes, what do you say?’ T believe so,’ said Mr. Vholes. ‘And that thus the suit lapses and melts away?’ ‘Probably,’ said Mr. Vholes.”— Charles Dickens, Bleak House. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
0
] | songer_appnatpr |
UNITED STATES of America, Appellee, v. James E. BARRINGTON, Appellant.
No. 80-5201.
United States Court of Appeals, Fourth Circuit.
Argued May 8, 1981.
Decided Oct. 21, 1981.
Rehearing Denied Jan. 13, 1982.
Joseph R. Lassiter, Jr., Norfolk, Va. (Hof-heimer, Nusbaum, McPhaul & Brenner, Norfolk, Va., on brief), for appellant.
Larry W. Shelton, Asst. U. S. Atty., Norfolk, Va. (Justin W. Williams, U. S. Atty., Norfolk, Va., Jacob Lutz, Third Year Law Student on brief), for appellee.
Before BUTZNER and MURNAGHAN, Circuit Judges, and RAMSEY , District Judge.
The Honorable Norman P. Ramsey, United States District Judge for the District of Maryland, sitting by designation.
MURNAGHAN, Circuit Judge:
As was all Gaul, the initial indictment, a superseding indictment and a superseding criminal information were in every case divided into three parts. In each there were three counts charging fraudulent misrepresentation, Count I as to the Aid for Dependent Children (“AFDC") program, Count II as to the foodstamps program, and Count III as to the Medicaid program. The initial indictment was filed July 14,1980, the superseding indictment on August 25, 1980, and the superseding criminal information on September 4, 1980.
The superseding indictment, like the initial indictment, charged, in each count, a violation of the same statute, 18 U.S.C. § 287. (The superseding indictment added references to the aiding and abetting statute, 18 U.S.C. § 2(b).) Both indictments repeated in each count the allegation that “he then well knew the claims to be false and fraudulent in that he was both employed and received workmen’s compensation during this period.” “This period” in Counts I and II of each indictment was April 1, 1977 until February 28, 1978, and, in Count III, April 1,1977 until January 31, 1978.
The initial indictment charged that the defendant “caused to be presented” claims which were false and fraudulent to the United States Department of Agriculture in Count II, and to the United States Department of Health, Education and Welfare in Counts I and III. The superseding indictment amended the charges so that the defendant allegedly “did present” claims that were false and fraudulent to the same United States departments “through the Norfolk Division of Social Services.” Otherwise, the indictment and the superseding indictment did not differ.
The criminal information’s three counts charged violations of 42 U.S.C. §§ 601 and 1307(a) as to AFDC, 7 U.S.C. §§ 2011 and 2024(b) as to foodstamps, and 42 U.S.C. §§ 1396a and 1396h(a)(3) as to Medicaid. However, they concerned precisely the same activities as dealt with in the two indictments, being alike as to the time frame, and charging in each count guilty knowledge “that he received income from his employment as well as workmen compensation benefits”, or that “he well knew that he was ineligible . . . due to his employment and his receipt of workmen’s compensation,” or that he “failed to disclose . . . the fact that he had become employed as well as his receipt of workmen’s compensation benefits. . . . ”
Count I charged misrepresentations made to the Secretary of HEW through the Norfolk, Virginia Division of Social Services (a state agency). Count II charged acquisition of foodstamps through the same state agency. Count III asserted fraudulent nondisclosure to the state agency of the receipt of wages and workmen’s compensation benefits.
On April 1, 1976, the defendant Barring-ton in the course of applying for several welfare benefits from the Norfolk, Virginia Division of Social Services, filed a true and correct statement as to his financial condition. The single, consolidated statement qualified him for benefits under all three programs. When he was approved on June 2, 1976 (retroactive to April 1, 1976) as eligible for the benefits, the April 1, 1976 statement was still correct.
Under the regulations, Barrington had a duty to report promptly any change in employment or receipt of additional income. Subsequently, between March 26, 1977 and February 28, 1978, Barrington earned approximately $3851. In the period April, 1977 until or through February, 1978, Bar-rington also received, without notifying the Virginia Social Services agency, three workmen’s compensation benefits, aggregating $2,793.60. Although aware of his responsibility Barrington failed to report the wages or the workmen’s compensation payments. He continued to benefit under the three welfare programs up through February, 1978.
The initial indictment of July 14, 1980 charged three felonies. The defendant pleaded not guilty.
Then there came the superseding indictment of August 25, 1980, followed by the superseding criminal information filed September 4, 1980, to which, as part of a plea bargain, the defendant pleaded guilty. The charges were misdemeanors:
Count I, 42 U.S.C. § 1307(a) (Welfare Fraud), maximum penalty one year and $1,000; Count II, 7 U.S.C. § 2024(b) (Foodstamps Violations), maximum penalty one year and $1,000;
Count III, 42 U.S.C. § 1396h(aX3) (Medical Assistance Grants Penalties), maximum penalty one year and $10,000.
On October 6, 1980, pursuant to the guilty pleas, the district court sentenced Barrington to one year under each count, to be served consecutively, i. e., a total imprisonment of 3 years. A fine aggregating $7500 ($1,000 on Count I, $1,000 on Count II, and $5,500 on Count III) was also imposed. All but 180 days of the imprisonment were suspended, but a probation of 4 years and 185 days (amounting, with the 180 days to be served, to 5 years) was imposed on condition that the defendant make monthly payments of $150 each until the $7500 fine has been satisfied. Failure to maintain payment of the fine in accordance with the monthly terms prescribed would lead to revocation of probation and reincarceration for the suspended period.
Counsel for defendant argues that essentially there was but a single offense, or, at any rate, what defendant did was subject to but a single punishment. James Barring-ton, he points out, simply did not go to the Norfolk, Virginia Division of Social Services and enlighten that agency about changes in his financial status. Counsel emphasizes that bureaucratically, administration of the plans under the several benefit programs had been assigned to the Commonwealth of Virginia, and that it, or its surrogate, the Norfolk Division of Social Services, in conformity with those plans (for which federal approval is required ) had unified the application form so that someone such as Barrington was called upon to file but a single statement, rather than three separate statements, one under each of the three federal statutes.
It is undisputed from the record that, from June 2, 1976 until March 26, 1977, receipt of AFDC benefits, foodstamps and Medicaid by the defendant was altogether lawful. Such receipts became unlawful upon, and solely by reason of, Barrington’s post-March 26, 1977 wages and workmen’s compensation benefits. When Barrington pleaded guilty, the assistant United States Attorney stated: “At the time he applied, he was eligible for these benefits.... And he became ineligible later on and his failure to report changed his circumstances.”
The government contends, on the other hand, that there were three separate offenses, susceptible of three distinct criminal penalties. The prosecutor relied for that proposition primarily on the decision in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), recently reaffirmed in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981):
Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
284 U.S. at 304, 52 S.Ct. at 182.
The statement constitutes a “rule of statutory construction.” Albernaz v. United States, supra, 450 U.S. at 340, 101 S.Ct. at 1143; Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980). Only if the answer proves to be that the defendant committed separate crimes for which Congress intended that he should be subjected to separate pyramided sentences does any issue of double jeopardy in the constitutional sense under the Fifth Amendment arise. Addressing the question of statutory construction, the first thing to note is that obviously a variety of factual situations can be presented calling for variation in application of the Blockbur-ger formula. At one extreme, we may have the situation where the defendant’s activities are made up of a number of acts. He may have purchased narcotics in a foreign country and smuggled them into the United States, thereafter distributing them to a variety of individuals. Obviously both the crimes of importation and of distribution have been separately committed. To prove importation, the government could stop once the accused had passed through customs and prior to any distribution. Correspondingly, to prove distribution, the government could concentrate exclusively on activities commencing only after the defendant had landed. Thus, when multiple acts are involved and they are susceptible of such disentanglement, it is customarily relatively easy for the prosecution to satisfy the Blockburger requirement that, to make out multiple crimes, there need only be a showing that each provision requires proof of a fact which the other does not.
Similarly, the activities of an accused, rather than combined to form one continuing activity, as in the case of importation and distribution referred to above, may also partake of independent non-continuous aggregations of facts making out two or more distinct crimes. As demonstrated in Blockburger itself, a sale of drugs on one day may constitute one crime and a separate sale of other drugs on the next day will constitute a separate independent crime,
even though the sales are made to the same person.
The opportunity was presented in the present case for the government to have pursued such a discontinuous approach. We have, of course, no occasion to decide, but we can assume that the government could have successfully sought conviction and punishment for the fraudulent concealment of the first workmen’s compensation benefit under one count, of the first wage payment under a second count, of the second workmen’s compensation payment under a third count, etc. However, matters of this nature are determined not by what might have been done but by what, in fact, was done. Cf. Sanabria v. United States, 437 U.S. 54, 65-66, 98 S.Ct. 2170, 2179, 57 L.Ed.2d 43 (1978):
Legal consequences ordinarily flow from what has actually happened, not from what a party might have done from the vantage of hindsight. . . . The precise manner in which an indictment is drawn cannot be ignored ....
Instead of proceeding in a fashion, by which each count was grounded on a discrete fraudulent nondisclosure, the government elected to support the claim of fraudulent concealment under each count as having triggered collectively all the undisclosed payments, workmen’s compensation and wages together. It thus was the conscious choice of the government, for the purposes of this case, to make all nondisclosures of wage payments and of workmen’s compensation benefits a single fact.
The government did belatedly seek to argue that each failure to disclose upon receipt of a different payment constituted a separate crime. However, the district court clearly made no separation of that kind. Instead, the district judge, in connection with acceptance of the guilty pleas, clearly followed the lead of whoever drafted the indictments and information, and tied all workmen’s compensation and all wage receipts together for each of the three counts. With respect to Count I he said:
You were employed and you did have income from your employment and that you were also receiving workmen’s compensation benefits.
As to Count II his statement was:
. . . you knew .. . that you were ineligible to receive . .. those food coupons due to the fact that you were employed and that you were receiving workmen’s compensation.
His observations as to Count III read:
. . . you thereafter became ineligible because you resumed employment and because you were in receipt of workmen’s compensation benefits, but instead of telling the government that, that you continued to receive Medicaid benefits when you knew you weren’t eligible for them. . . .
Similarly, in terms of what the government might have done, rather than what it in fact did, it might, looking at the statutory language alone, and disregarding the legislative history indicating a Congressional purpose favoring composite administration, have administered the three welfare programs differently. Three separate statutes were involved, one for AFDC, one for foodstamps, and one for Medicaid. Nondisclosure to the administrator of each program could have been a different act so that each count could be deemed to have set forth a distinct offense requiring proof of a fact which the other did not, and for which the government, consequently, was entitled to exact a separate punishment.
If, indeed, things had proceeded on the basis of prosecution for three separate fraudulent concealments, the person being kept in the dark being the administrator of AFDC, in one case, the administrator of the foodstamps program, in another case, and the Medicaid administrator in the third case, no doubt the argument would have been very strong. However, that is not how things happened.
Instead, the federal government, through its Virginia surrogate, had consolidated administration of the three programs in such a way that an applicant was required to make but one initial application for benefits. We, of course, in no way fault so forward looking a step calculated to cut down the red tape attendant upon the obtaining of benefits to which indigent persons are entitled. Nevertheless, it was not without consequences beyond the immediate ones of simplifying the paperwork. Barrington was fully eligible when he made his application in April, 1976 and also later in June, 1976, when he was approved and began to receive payments. He remained eligible and properly received benefits until April, 1977.
At that time, when he first received additional sums which might have eliminated or reduced his benefits, he had and knew he had a responsibility to inform the source of benefits. For him, of course, it was a source of benefits for he had made but one application. It takes no great resort to the principle of lenity to conclude that, in keeping quiet instead of ’fessing up, he reasonably understood that he was making but a single nondisclosure. It being the eminently more reasonable one, Congress, we believe, had the same understanding about anyone in the situation of Barrington. Had Barrington been required to trudge up the stairs of three different government office buildings and make three different applications for benefits, it would have been reasonable to require him to make three distinct disclosures of additional income. But having only one to make, the failure was a single not a multiple offense. The government began the process by which only one, rather than three, was required. It cannot change horses in midstream and argue that, going into the river on one steed, the defendant must, to comply with the law, emerge with three.
The government perceived some of the difficulties inherent in the composite application and composite disclosure requirement. The language of Count I under the AFDC statute and Count III under the Medicaid statute are, when parsed, essentially identical prohibitions of nondisclosure of eligibility-affecting receipts from other sources. Magnanimously the government, at oral argument, agreed to a treatment of Count I as, for that reason, having merged with the crimes for which sentencing was imposed under Counts II and III. The government’s concession was limited to this particular case and so would have no prece-dential effect. However, a precedential effect bearing on multiple sentencing in a like set of circumstances is to be derived from our treatment of the separate and cumulative sentences under Counts II and III.
The government has sought to build on its concession as to Count I by pointing out that, while Count I and Count III proceed under statutes which may have similar language spelling out essentially identical crimes so that provisions each requiring proof of a fact which the other does not are unlikely, nevertheless, the situation under Count II is entirely different. Unlike Counts I and III, the statute under which Count II is framed is not cast in terms of fraudulent misrepresentation or concealment. Instead, it provides for punishment of “whoever knowingly uses . . . acquires ... or possesses coupons or authorization cards in any manner not authorized by this Act. . . . ” The statute applicable to Count III seeks to punish fraudulent concealment or failure to disclose, with knowledge of an event affecting the continued right to Medicaid. Thus, contends the government, any identity of crime as between Counts I and III is by no means present insofar as Count II is concerned. However, obeying the admonition to treat things as they are and not as they might have been, we note that, in this particular case, the manner “not authorized by this Act” involved acquisition and resulting use or possession of foodstamps as a consequence of fraudulent concealment.
The government makes a might-have-been response. The crime under Count II, looking only to the statutory language, and not to the actual, factual circumstances it was drafted to cover, namely those of Bar-rington’s case, could have proceeded under some quite different “manner not authorized by this Act.” For example, the defendant might have stolen the foodstamps or purchased them unlawfully.
The government’s argument loses sight of the total nature of the information’s construct. As the matter has arisen before us, the count under 7 U.S.C. § 2024(b) has not been pressed independently. Instead, it has been coordinated with prosecutions under 42 U.S.C. § 1307(a) and 42 U.S.C. § 1396h(a)(3) in such a manner as to reveal the proceeding under 7 U.S.C. § 2024(b) as one exclusively concerned with fraudulent concealment as the only “manner not authorized by this Act,” which was operative or of any concern to the government.
Where the actual “manner not authorized by this Act” is indeed fraudulent concealment and not some other possible manner, the construction of the statute should be in terms of the actuality and not in terms of hypothetical but not genuine possibilities. That is the teaching of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). There two crimes were charged, rape and felony murder. Felony murder could be made out with respect to a killing in the course of commission of six different crimes, one, but only one, of them being rape (the others being robbery, kidnapping, arson, etc.). The defendant was convicted both of a rape and of the killing of the victim. The Supreme Court refused to accept the argument that, applying Blockburger, there were two separate crimes for which separate penalties could be imposed because the statute could have involved other felonies besides rape:
The Government contends that felony murder and rape are not the “same” offense under Blockburger, since the former offense does not in all cases require proof of a rape; that is, D.C.Code § 22-2401 (1973) proscribes the killing of another person in the course of committing rape or robbery or kidnapping or arson, etc. Where the offense to be proved does not include proof of a rape — for example, where the offense is a killing in the perpetration of a robbery — the offense is of course different from the offense of rape, and the Government is correct in believing that cumulative punishments for the felony murder and for a rape would be permitted under Blockburger. In the present case, however, proof of rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in whieh one criminal offense requires proof of every element of another offense. ... To the extent that the Government’s argument persuades us that the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity.
Whalen v. United States, supra, 445 U.S. at 694, 100 S.Ct. at 1439.
Nor, of course, would it avail the government to argue that there are two offenses with each provision requiring proof of a fact which the other does not because each statute requires proof of a different governmental benefit, a different element of each offense. Count II, it is true requires proof of possession of foodstamps, which Count III does not. However, that consideration brings the Blockburger doctrine at most half of the way. A different element for each of the offenses is required. Each provision requires proof of a fact which the other does not. The additional element, while existing for Count II, has not been shown for Count III. For Count III the proof required is solely that of a false representation, a fact which is part and parcel of the Count II offense.
In such circumstances, we perceive no intent of Congress to make it a separate crime, subject to multiple penalties, purely because more than one type of benefit, simultaneously and for the same reason, became legally unavailable to Barrington because he concealed one truth. There is reinforcement for that conclusion in the consideration that there was but one application for benefits and but one agency to inform of a change in financial status, namely, the Norfolk, Virginia Division of Social Services.
All in all, the question is one of statutory construction: what was the congressional intent as to what punishment should be permitted when criminal activities breach more than one statutory scheme? Of course, there is no way to fathom a specific intent on the part of Congress. If it had had any specific idea on the subject, presumably it would have expressed it. Rather, it is intent in only the most general of senses: what would Congress have intended, if it had ever considered the matter? See Justice Frankfurter in Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955) speaking to a similar situation and alluding to the task imposed on the courts “of imputing to Congress an undeclared will.”
In such cases, Bell held, “the ambiguity should be resolved in favor of lenity.” “It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.” Id. Bell declined to permit more than a single punishment where the defendant was convicted under two counts for violation of the Mann Act. He had transported across state lines two different women, albeit on the same trip and in the same vehicle. The essence of the opinion is contained in its closing sentence:
... if Congress ¿oes not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses ....
To like effect is Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). Only a single sentence was permitted following conviction under two distinctly different statutes: the bank robbery statute, 18 U.S.C. §§ 2113(a) and (d) and the firearms statute, 18 U.S.C. § 924(c). The use of the firearms occurred in the course of the bank robberies. The Supreme Court proceeded on the assumption that the Blockburger test had been met, i. e., that “each provision requires proof of a fact which the other does not,” yet found that other indications of contrary Congressional intent outweighed the Blockburger indicia:
... to construe the statute to allow the additional sentence authorized by § 924(c) to be pyramided upon a sentence already enhanced under § 2113(d) would violate the established rule of construction that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”
435 U.S. at 14, 98 S.Ct. at 913.
See also, Brown v. United States, 623 F.2d 54, 57 (9th Cir. 1980) which applied “the rule of lenity”, defined as follows:
A court may not impose consecutive sentences for a single transaction that violates more than one statutory provision or purpose unless Congress has clearly expressed its intent to make each violation within that single transaction a separate offense subject to separate punishment. . . .
Blockburger provides, therefore, but one method for ascertaining Congressional intent. Thus, even were its test met in this case, it is, while useful, up to a point, not universal in its application. Blockburger, and many of the cases within its periphery, address simultaneous violations of several drug statutes. The concepts of mercy or lenity attach far more strongly to a case like Barrington’s involving a welfare recipient, someone for whom the economics of life simply became overwhelming. Congress has expressed sympathy to those in Barrington’s class in several ways, specifically by providing AFDC, foodstamp and Medicaid assistance programs.
When someone such as Barrington, qualifying for those three benefits, after legitimately receiving them for some time, fails to speak up on receipt of other modest sums, which would terminate or reduce his qualification, when the nondisclosure is treated as a single fact by the criminal information under which he is charged, and when, for reporting purposes, the three programs have been coalesced into one, we are satisfied that Congress intended Barring-ton’s unitary silence to constitute the basis for but a single punishment.
Accordingly, we vacate the sentences under Counts I and II, leaving intact, however, Count III. Practically, the ultimate effect insofar as incarceration is concerned may be no different whether the sentences under Counts I and II were or were not left standing. If Barrington complies with his conditions of probation, the result will be the same. However, he is entitled, in case he should violate the conditions of probation, to have hanging over him no greater Damoclean sword of prospective incarceration than the law allows. Here, it is 185 days, not 2 years and 185 days. Furthermore, the aggregate fine becomes simply the fine under Count III of $5,500. The fines of $1,000 each under Counts I and II having been eliminated, the probation condition will be the payment of $5,500, not $7,500.
One additional observation may be appropriate. The order of the district court speaks unequivocably of return to prison for violation of probation should Barrington miss any of the required payments of $150 per month. As phrased, the language would seem to call for invocation of the sanction of imprisonment for failure to make payments, however diligent Barring-ton’s efforts may have been. Obviously, he should not be imprisoned if he becomes unemployed through no fault of his own, or if illness or injury precludes his earning enough to make the payments. Revocation of probation for inability to pay the fine would offend the Constitution. United States v. Santarpio, 560 F.2d 448, 455-56 (1st Cir. 1977), cert. denied, sub nom. Schepici v. United States, 434 U.S. 984, 98 S.Ct. 609, 54 L.Ed.2d 478 (1977). The government, at oral argument, conceded that the order of the district court should be so interpreted. In light of that clarification, it is not necessary to remand for revision of the order of the district court in that respect.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART FOR REFORMATION OF THE SENTENCE IN ACCORDANCE WITH THE VIEWS EXPRESSED IN THE OPINION.
. See 42 U.S.C. § 601, 7 U.S.C. § 2020, and 42 U.S.C. § 1396.
. Such a composite approach was not simply the product of the policies of the Commonwealth of Virginia. The sensible red-tape reducing attitude was also displayed by the Federal Congress. See House Conference Report No. 95-599, 95th Cong. 1st Sess., reprinted in 2 U.S.Code & Admin.News, 2445, 2499 (1977):
The Conference substitute adopts (1) the Senate provision requiring a single interview for determining eligibility for the food stamp and Aid to Families with Dependent Children (AFDC) programs, (2) the House amendment requiring that supplemental security income (SSI) households be allowed to apply for food stamps by executing a simplified affidavit at social security offices and be certified utilizing information in the SSI files, (3) the House amendment requiring that public assistance or general assistance households have their application for participation in the food stamp program contained in the public or general assistance application form, and (4) the House amendment requiring that certifications of new public assistance or general assistance recipient households or households who recently lost their benefits under those programs will be based on information in their case file to the extent verification is available. The Conferees understand that a single interview may not be possible where the agency that administers the AFDC program is not the same agency that administers the food stamp program.
Cf. House Conf. Report No. 96-957 on the Food Stamp Act, 96th Cong. 2d Sess., reprinted in 3 U.S.Code & Admin.News 1057, 1061 (1980):
(F) The House amendment requires the Secretary to consult with the Secretary of Health, Education, and Welfare in implementing the periodic reporting requirements and, whenever feasible, households that receive income under the aid for families with dependent children (AFDC) program and that are required to file comparable reports under that program would be provided the opportunity to file reports at the same time for the purposes of both programs.
The Senate bill contains no comparable provision.
The Conference substitute adopts the House provision.
. There are situations where, even though the Blockburger test has been satisfied, nevertheless, it may be possible, through other interpre-tational aids, to establish that multiple punishments were not intended by Congress. In Al-bernaz, it is stated:
The Blockburger . . . rule should not be controlling where, for example, there is a clear indication, of contrary legislative intent. 450 U.S. at 340,101 S.Ct. at 1143.
For example, in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), the Court decided that Congress did not intend to pyramid punishment for someone holding up a bank, once for robbing the bank, and again for receiving the fruits of the robbery. See Baugh v. United States, 540 F.2d 1245, 1246 (4th Cir. 1976). We assume, however, that such an approach to ascertainment of congressional intent is inappropriate with respect to the crimes here at issue. The Heflin doctrine would make multiple sentencing always incorrect whenever there were counts charging violation of two or more of the welfare statutes. We limit our consideration to the particular situation of the particular case, and find that pyramided sentencing is barred as a matter of congressional intent. However, we do not mean to imply that separate sentences could not, in other circumstances, involving different considerations, be imposed under all three statutes.
. E. g., Blockburger, supra (sale of drugs not within the original stamped package is independent of a sale of drugs not in pursuance of a written order); Albemaz, supra (conspiracy to import marijuana is criminal whether or not there is a subsequent distribution; distribution is a crime even though the accused did not participate in the importation); Ianelli v. United States, 420 U.S. 770, 777-78, 95 S.Ct. 1284, 1289-90, 43 L.Ed.2d 616 (1975); Harris v. United States, 359 U.S. 19, 22, 79 S.Ct. 560, 563, 3 L.Ed.2d 597 (1959); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 253, 71 L.Ed. 505 (1927) (“One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case.”); United States v. Garner, 574 F.2d 1141, 1146-47 (4th Cir. 1978), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978); Baugh v. United States, 540 F.2d 1245 (4th Cir. 1976).
. But see Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889).
. For example Count III in the criminal information stated that he “failed to disclose .. . the fact that he had become employed as well as his receipt of workmen’s compensation benefits . . . . ” Similar language appeared in the other two counts, as well as in each count of the indictment and of the superseding indictment.
. The prosecutor stated at the time of entry of the guilty pleas:
They might have originated out of one act— one initial act, but they didn’t occur at the same time. So I believe the Court would be within its province to sentence under each count.
. See n.2 supra.
. As the case has been presented to us, the holding in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942) is the correct one to apply. We have the equivalent of a single statute and a single, if continuing, fraudulent misrepresentation. See Bramblett v. United States, 231 F.2d 489, 491 (D.C.Cir. 1956).
. Cf. Brown v. Ohio, 432 U.S. 161, 167-68, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977) (“The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; the prosecutor who has established auto theft necessarily has established joyriding as well.”).
The prosecutor who has established acquisition or possession of foodstamps in any manner not authorized, relying on fraudulent concealment to establish unauthorized acts, necessarily has established fraudulent concealment under either of the other two statutes as well.
. The judgment reads: “Further conditions of probation are that defendant must remain employed and pay $150 per month toward fines.”
. The trial court stated: “Upon your failure to remain employed, upon your failure to make your payments as required by this order here today, you will be brought back in, and if I find that you have failed to meet your terms of probation, I will revoke your probation and you will be required to serve the other two and a half years of your prison term. . . . One of those [probation] terms will be that you pay at least $150.00 a month on this fine. ...” | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". | Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
1
] | songer_sentence |
KOBER v. UNITED STATES.
No. 5786.
United' States Court of Appeals Fourth Circuit.
Nov. 8, 1948.
Mark P. Friedlander, of Washington, D. C. (Leroy Bendheim, of Alexandria, Va., on the brief), for appellant.
T. Hayward Brown, Atty., Department of Justice, of Washington, D. C. (H. G. Morison, Asst. Atty. Gen., and George R. Humrickhouse, U. S. Atty., of Richmond, Va., on the brief), for appellee.
Before PARKER, -Chief Judge, and SO-PER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
This is an appeal from a decree requiring the appellant William Kobe„r to assign to the United States all rights in certain inventions covered by applications for patents pending in the Patent Office, serial Nos. 543,744 and 686,093 respectively. The D-is1trict Judge found that the inventions were made by appellant while he' was employed by the United States and assigned to the duty of developing electrical appliances of the sort covered by the applications for patents, under a contract providing that'title to such inventions should be vested in the United States upon a determination by the Chief Signal Officer, which had been duly made, that the public interest so required. The District Judge held that the inventions belonged to the United States under the express terms of the contract, “as well as under the general law”.
The facts are that appellant, a graduate engineer was employed by the United States Army, Signal Corps, Engineering Laboratories, near Fort Monmouth, New Jersey, from January 1943 to January 1947.-In January 1943, before being assigned to laboratory work involving research and development projects, he agreed to the provisions of “Patent Memorandum No. 3, which ■is as follows:
.. “You are hereby assigned to develop improvement in arts of value to the Chief Signal Officer. It is expected that this work may result in the discovery of patentable features, and your assignment to this work is for the particular purpose of -vesting in the United States all right, title and interest to any invention- that you may make while engaged in the work assigned*,' if in the-opinion of the Chief Signal Officer the public interest demands that the invention be owned and controlled by the War-Department. :
“Acceptance of assignment, to this work will constitute an agreement on your part^ to execute the papers required for complete assignment of any such invention to the United States in case the Chief Signal Officer decides that the invention should remain secret, or to execute the papers necessary for making application for patent and the assignment of the patent to the United States if .secrecy is not necessary or is necessary only for a limited time. In the case, of an. invention which the Chief Signal Officer decides should remain secret acceptance of this assignment also constitutes' an agreement on your part that you yvill not disclose the invention to unauthorized persons until such time as you are informed in writing by the Director of the Signal Corps Ground Signal Service, that the need for secrecy has ceased.
“The assignment of the invention to the United States must be drafted in form to comply with requirements of law relating to patent applications coming under this category; but such assignment or instrument of transfer may in a proper case include suitable reservations to enable you to retain or repossess your commercial rights, in whole or in part, if and when the need for secrecy ceases to exist.
“This notice of assignment to develop improvements in arts of value to the Signal Corps shall not be construed as divesting you of ownership of any invention made by you while engaged on this work, other than those which in the opinion of the Chief Signal Officer should be owned and controlled by the War Department to safeguard the public interest, except that the United States shall be entitled to a nonexclusive license to any and all inventions made by you in the course of the work assigned in the same way as if this special assignment had not been made.”
In February or March 1943, appellant conceived -an invention relating to an alternating current generator, and in August 1944 an invention designed to maintain within limits the voltage output of a generator notwithstanding varying loads. He contends that he was not assigned to the development of these devices under his contract of employment; but the District Judge has found that he was so assigned and this finding is supported by substantial evidence including admissions made by appellant himself in statements filed by him as a basis of promotion in the government service. We must accept this finding, since there is no basis for holding that the judge who saw and heard the witnesses and was in better position than we are to judge their credibility, was clearly wrong in accepting the evidence relied on by the .government. In making applications- for patents on these inventions, appellant secured and filed certificates of the Secretary of War that the inventions were likely to be used in the public interest and was relieved of the payment of fees of the Patent Office under the Act of March 3,1883, as amended, 35 U.S.C.A. § 45.
In 1946, appellant prepared a document showing the theory of the first of his patents; and this was used by his superior, a Colonel Moynahan, without his knowledge, in negotiations with officials of the General Electric Company looking to the manufacture of the device for the government. Appellant protested against this disclosure and considerable feeling was developed between him' and Colonel Moynahan. He was ordered to -make a public apology for language which he had used to Colonel Moynahan, and resigned his position rather than do so. Demand was then made upon him that he either execute to the government licenses authorizing it to license others under the patents or make assignments to the government retaining licenses for himself which would authorize him to enter, into any commercial arrangements covering the patents that he might desire. Upon his refusal to accede to this demand, the Chief Signal Officer of the United States, Major General S. B. Akin, made a finding that, in his opinion, the public interest demanded that the invention described in appellant’s applications be owned and controlled by the War Department and enclosed papers of assignment for him to execute. He refused to execute these, and this suit was thereupon instituted to require him to assign to the government his rights under the patent applications.
At the hearing in the court below Major General Akin testified that he made the determination that it was in the public interest for the patents to be owned and controlled by the War Department on recommendations submitted by his technical advisers and on his personal knowledge of the facts: in the case. He stated that the facts - laid before him were that the devices covered by appellant’s inventions were needed by the armed forces of the United States and that it was desirable that the -government own the patents in order to secure quantity production by private maunfacturers and lower prices as a result of such production. He said that he knew nothing about the controversy that had arisen between appellant and Colonel Moynahan or the feeling resulting therefrom. There is not the slightest evidence that General Akin acted otherwise than in entire good faith in making the determination or that any person who furnished information to him with regard to the matter was actuated .by- improper motives. Counsel for appellant complain that they were stopped in their examination of General Akin; but the record shows that thorough examination was permitted as to the facts which were before the General and that the court merely declined to permit examination to show that he had made a mistake. While counsel stated generally that they proposed to show that fraud was perpetrated upon the General in securing his determination, this appears to be mere brutum fulmen, with no specific question or offer of proof to support the statement.
Upon these facts, we think that the judgment appealed from was clearly correct. In the absence of agreement fixing the rights of the parties, the rights of an employee in an invention which he has made are subject to different rules dependent upon the facts. If he has made the invention on his own initiative and on his own time and resources, the invention belongs to him and the employer has no rights in it. If while engaged in a certain line of work for his employer he has devised or improved a method or instrumentality for doing the work, using the property of the employer and the services of other employees to develop his invention and has assented to the use of same by the employer, the invention is his property subject to an irrevocable license, or shop right, in the employer. If he makes an invention while employed to make investigations and conduct experiments for the purpose of making it, the invention is the property of the employer, who is entitled to the fruits of the labor for which he contracted. These rules apply to employees of the government as well as to those of private persons. See United States v. Dubilier Condenser Corporation, 289 U.S. 178, 53 S.Ct. 554, 77 L.Ed. 1114, 85 A.L.R. 1488, and Houghton v. United States, 4 Cir. 23 F.2d 386, where this court dicussed the matter fully with citation of the applicable authorities. In the case at bar, however, these rules need not be considered except as furnishing background for the agreement of the parties heretofore quoted which deals fully with the matter. The effect of that agreement, aside from the provisions for secrecy, is to provide that any invention made by appellant while engaged in the work to which he has been assigned shall belong to the United States, if in the opinion of the Chief Signal Officer it is in the public interest that it be owned and controlled by the "War Department, otherwise it shall belong to appellant subject to a non exclusive license on the part of the United States. The determination by General Akin fulfilled the condition of the contract and vested title to the invention in the United States.
Appellant questions the validity of the contract on the ground that it is lacking in statutory foundation. If it were held invalid, this would not help appellant, as the government would then be entitled to the invention on the ground that appellant had made it while employed for the purpose of conducting investigations and making experiments from which it was anticipated that patentable inventions would result. We do not think, however, that the contract is invalid. On the contrary, it is a reasonable agreement entered into by the government for a lawful and proper purpose and finds ample support in the statutes. See Act of August 29, 1916, c. 418, sec. 1, 39 Stat. 622, 10 U.S.C.A. § 1223; Act of July 2, 1942, c. 477, sec. 8, 56 Stat. 631-632.
It is argued that the contract, properly construed, does not authorize any determination by the' Chief Signal Officer “except to insure military secrecy or to safeguard the public interest in a military way.” It is perfectly clear from a reading of the contract, however, that the provisions as to secrecy are entirely separate and distinct from those relating to the determination that the public interest requires ownership and control by the war department. The provision of paragraph two of the contract, upon which appellant relies, relating to a determination by the Chief Signal Officer that the invention should remain secret, provides for an assignment in such case of the invention as distinguished from the patent. This is followed by a provision requiring the assignment of the patent, “if secrecy is not necessary or is necessary for only a limited time.” The paragraph closes with a requirement that the invention be not disclosed until the need for secrecy has expired.' The third paragraph relates to form of assignments of patents as to which secrecy is required, but provides that reservations of rights may be made “in a proper case” to be asserted when need of secrecy has expired. The final paragraph makes clear that by a “proper case” is meant a case in which the Chief Signal Officer has not determined that the patent should be “owned and controlled by the war department to safeguard the public interest.” That paragraph makes it equally clear, when considered with the first paragraph, that such a determination by the Chief Signal Officer vests the right to such invention in the United States.
And we do not think that the rights of the United States were in any way prejudiced by the fact that appellant was allowed to apply for patents with assignment of licenses to the government, or that certificates of the Secretary of War were filed to permit this to be done without payment of Patent Office fees, as allowed by the Act of 1883, as amended. Until the Chief Signal Officer made his determination with respect to the public interest, appellant was entitled to his inventions, subject to this license, and to apply for patents to protect same; and no action taken or allowed as a matter of course for the protection of rights, which were undoubtedly his until action by the Chief Signal Officer, should be held to preclude the government from’ assertion of rights under the contract after the Chief Signal Officer made the determination for which the contract provides. See Houghton v. United States, supra; Grand Trunk Western Railway Co. v. United States, 252 U.S. 112, 40 S.Ct. 309, 64 L.Ed. 484; Wisconsin Central R. Co. v. United States, 164 U.S. 190, 17 S.Ct. 45, 41 L.Ed. 399.
We quite agree with appellant that good faith on the part of the Chief Signal Officer in making the determination for which the contract provides was essential to vest title to the inventions in the United States, and that his decision would be reviewable for fraud, bad faith,, or failure to exercise an honest judgment. United States v. Gleason, 175 U.S. 588, 20 S.Ct. 228, 44 L.Ed. 284; Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106. There is nothing in the record, however, upon which to base a contention of fraud, bad faith or failure to exercise an honest judgment, nor is there any basis for saying that evidence to this effect was excluded. As stated above, general charges of fraud were made in the argument of counsel, but there was no tender of proof which would justify sending the case back. There was no pretense of compliance with the requirement of rule 43(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides :
“In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character' of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.”
Even though the Chief of the Signal Corps acted in good faith, his determination would be set aside if it were shown to have been fraudulently induced by false statements or other fraudulent conduct on the part of his subordinates or others, just as the award of an arbitrator might be impeached for fraudulent conduct in its procurement; but there is no evidence or offer of evidence of this sort. It was not competent, of course, for the trial court to substitute its judgment for that of the Chief of the Signal Corps or enter into an inquiry as to whether or not he had made a mistake of judgment. This was what the judge refused to do; and there was no offer of any specific evidence to sustain the charge of fraud.
For the reasons stated, the judgment appealed from will be affirmed.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. | This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? | [
"cabinet level department",
"courts or legislative",
"agency whose first word is \"federal\"",
"other agency, beginning with \"A\" thru \"E\"",
"other agency, beginning with \"F\" thru \"N\"",
"other agency, beginning with \"O\" thru \"R\"",
"other agency, beginning with \"S\" thru \"Z\"",
"Distric of Columbia",
"other, not listed, not able to classify"
] | [
5
] | songer_appel1_3_2 |
MASTRANDREA v. PENNSYLVANIA R. CO.
No. 8057.
Circuit Court of Appeals, Third Circuit.
Argued Nov. 17, 1942.
Decided Dec. 8, 1942.
Samuel V. Albo, of Pittsburgh, Pa. (Henry Mustin, of Pittsburgh, Pa., on the brief), for appellant.
Samuel W. Pringle, of Pittsburgh, Pa. (Dalzell McFall & Pringle, of Pittsburgh, Pa., on the brief), for appellee.
Before BIGGS, MARIS, and JONES, Circuit Judges.
PER CURIAM.
Marco Anthony Mastrandrea, for whose death the administratrix of his estate seeks damages, was for many years a crossing watchman for the defendant railroad company. While in the performance of his duties as watchman at a main line crossing in Carnegie, Pennsylvania, he was struck by the side of the locomotive of a rapidly moving freight train and received injuries which caused his death almost immediately. The crossing was frequently traversed by trains engaged in interstate commerce, as was the train whose locomotive struck him.
In order to save from harm several children of tender years, whose actions gave indication of their intent to enter upon the crossing forthwith, Mastrandrea placed himself in a position of danger, in relation to the oncoming freight train, from which position he was unable to extricate himself in time to avoid being struck. In thus laying himself open to great danger in order to protect others, without thought of his own safety, his conduct was truly heroic.
But the plaintiff’s suit for damages, which, under the circumstances, was necessarily based upon the right of action conferred by the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., required proof showing the defendant guilty of negligence which was the proximate cause of the fatal injuries received by Mastrandrea. Unfortunately for the plaintiff, the record in the case is barren of any facts which would justify a jury’s finding that the defendant company, its agents, or servants failed to exercise ordinary care either in the operation of the train whose locomotive inflicted the fatal injuries or in any other particular relating to the accident. We, therefore, have no alternative under the law but to affirm the judgment of the court below, which ruled to like effect.
From the standpoint of a recovery by law for the death of this faithful employee in connection with his employment the case portrays an unfortunate legal situation. As we have seen, no recovery can be had under the Federal Employers’ Liability Act, since the plaintiff was unable to prove the defendant negligent. On the other hand, there is no Federal compensation law applicable to the employees of carriers of interstate commerce by rail. And yet, the exclusive applicability of the Federal Employers’ Liability Act, under the circumstances obtaining in this case, precluded a claim by Mastrandrea’s dependents for compensation under the State Compensation Law, 77 P.S. § 1 et seq. Such a situation would seem to merit appropriate legislative consideration and correction.
The judgment of the District Court is affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party | What is the nature of the counsel for the respondent? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
3
] | songer_counsel2 |
GENERAL DYNAMICS CORPORATION, Plaintiff-Appellant, v. LOCAL 5, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, Defendant-Appellee. GENERAL DYNAMICS CORPORATION, Plaintiff-Appellant, v. LOCAL 5, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, and Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, Defendants-Appellees.
Nos. 72-1112, 72-1113.
United States Court of Appeals, First Circuit.
Heard Sept. 8, 1972.
Decided Nov. 15, 1972.
Lewis H. Weinstein, Boston, Mass., with whom David B. Ellis, Foley, Hoag & Eliot, Boston, Mass., and Carter W. Eltzroth, Gen. Counsel, General Dynamics Corp., Quincy, Mass., were on brief, for appellant.
Warren H. Pyle, Boston, Mass., with whom Angoff, Goldman, Manning, Pyle & Wanger, Boston, Mass., was on brief, for appellees.
Before COFFIN, Chief Judge, Mc-ENTEE, Circuit Judge, and HAMLEY, Senior Circuit Judge.
Of the Ninth Circuit, sitting by designation.
COFFIN, Chief Judge.
These two appeals arise out of a dispute between the parties in the summer of 1969 over the interpretation of the seniority provisions in their collective bargaining agreement [the Agreement], signed in the spring of that year and effective until 1974. The dispute resulted in a work stoppage by members of the defendant Union and an arbitration award, pursuant to provisions of the Agreement, ordering the employees to return to work. Alleging non-compliance with the award, the plaintiff Corporation brought one suit for an order to enforce the award and another for damages resulting from the work stoppage. The district court, without opinion, granted the defendant’s motion to dismiss in the first action and the motions for summary judgment in the second. The plaintiff appealed from both orders.
On July 25, 1969, the Corporation ordered the layoff of eleven machine shop employees, effective August 1. On July 31, approximately twenty-five machine shop employees did not return to work at the end of the lunch period, apparently in protest over the layoffs which the Union felt were not in accordance with the Agreement’s seniority provisions. A meeting between the parties on August 1 resulted in the postponement of the layoffs and efforts to resolve the dispute. After the Union refused on August 19 to arbitrate the seniority issue, as the Corporation contends it had previously agreed to do, new notices of layoffs were sent out on August 22, to take effect the following Friday, the 29th. On August 25, a grievance was filed on behalf of three machine shop employees and a walkout began which by the next day included practically the entire work force. After telegrams to both the national and local unions requesting them to take all reasonable steps to end the walkout produced no results, the Corporation initiated the expedited arbitration proceedings provided for by the Agreement. On August 27, Arbitrator Fallon rendered his award, holding the work stoppage on July 31, August 25, and August 26 in violation of the Agreement and ordering the employees to cease and desist from that conduct, as provided in the Agreement. The work stoppage, however, continued, notwithstanding the arbitrator’s award. The Corporation then brought these suits in the district court. . A hearing on the plaintiff’s request for a temporary restraining order to enforce the award took place on August 29, but during a recess the parties agreed to arbitrate the machine shop seniority dispute. On September 2, Arbitrator Santer issued his award agreeing with the Corporation’s interpretation, after the announcement of which the employees began to return to work, full attendance being achieved within two days. Since then there has been apparently no work stoppage with regard to the machine shop seniority dispute, although there was allegedly one one-hour work stoppage in 1971 with regard to another matter.
We consider first our power to grant the relief requested in the first suit. In Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Supreme Court held that federal courts have the power to enjoin strikes over disputes subject to binding arbitration under a collective bargaining agreement. It reasoned that this narrow power was necessary to further the strong Congressional policy favoring peaceful arbitration of industrial disputes, and was not inconsistent with the Norris-LaGuardia Act which was designed to avoid the interjection of the federal judiciary into labor disputes on the behalf of management by means of sweeping, often ex parte, decrees. As courts, both before and after Boys Markets have recognized, New Orleans Steamship Ass’n v. General Longshore Workers, I.L.A. Local 1418, 389 F.2d 369 (5th Cir. 1968); Pacific Maritime Ass’n v. International Longshoremen’s and Warehousemen’s Union, 454 F.2d 262 (9th Cir. 1971), an arbitrator’s action, in accordance with the collective bargaining agreement, in issuing a cease and desist order against a work stoppage presents an even stronger case for federal power to issue injunctive relief. For here, the court is not being asked to force a party to go to arbitration, which he agreed to undertake, Textile Worker’s Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957), to restrain a party from violating its contractual promise to arbitrate, Boys Markets, supra, or to compel compliance with an arbitrator’s award confined to interpreting a provision of the collective bargaining agreement. Philadelphia Marine Trade, Ass’n v. International Longshoremen’s Ass’n, Local 1291, 365 F.2d 295 (3d Cir. 1966), rev’d on other grounds, 389 U.S. 64, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967). We are merely being asked to give judicial enforcement, specifically provided for by the Agreement, to an arbitrator’s injunction, specifically provided for by the Agreement, issued after voluntary compliance with the expedited arbitration procedure established by the Agreement. Nothing could be closer to the core of the federal labor arbitration policy and further from the core of the NorrisLaGuardia policy.
Concluding that we have power to enforce an arbitrator’s order, explicitly authorized by the contract, we turn to the order before us. The arbitrator’s award reads as follows:
“It is my finding that employees of General Dynamics, Quincy Division, engaged in a work stoppage on July 31st., August 25th., and August 26th., 1969 in violation of Article XI, Section 1 of the collective Bargaining Agreement.
Employees who have participated in this prohibited work stoppage are directed to refrain from such conduct forthwith and return to work immediately and cease and desist from any such further contract violations.”
There is much controversy over the meaning of the final Delphic phrase. We see only two viable interpretations —either the arbitrator meant to bar any further work stoppage, like the one he found occurred on the three named dates, relating to the machine shop dispute, or he meant to bar any further work stoppage in violation of that section of the Agreement. We adopt the former view for two reasons. First, we note the very precise provisions of the collective agreement regarding cease and desist orders:
“In such ease, the arbitator shall make findings of fact concerning the alleged violation, and if a violation shall be found to have occurred, he shall prescribe appropriate relief, which shall include an order requiring any party . or group of employees to desist from any violations of Section 1 hereof. ... In the event the arbitrator enters an order to desist from any violations of Section 1 above, it is agreed that he shall make as part of his order a provision in his award to the effect that if he finds there is thereafter a continuing or future violation of this Article during the term of this Agreement it shall automatically be deemed to be subject to the desist order entered by the arbitrator in such proceeding.”
Here the arbitrator did not include in his award the provision for applicability of the order, after subsequent findings, to continuing or future violations. Moreover, we cannot read the arbitrator’s words as implying such applicability; he used the words “cease and desist” only in the final phrase and the Agreement clearly indicates that future violations are to be made subject to that “desist order”. We can understand plaintiff’s disappointment in the award, but we are powerless to add words to an arbitrator’s award.
Our limited reading of the award is bolstered not only by the specificity of the Agreement but also by the potential Norris-LaGuardia difficulties with an injunctive order susceptible of application to an indefinite number of yet uncommenced strike actions over an extended period in the future. See Old Ben Coal Corp. v. Local 1487, United Mine Workers of America, 457 F.2d 162, 165 (7th Cir. 1972), New York Telephone Co. v. Communications Workers of America, 445 F.2d 39, 50 (2d Cir. 1971). Certainly in an area where our power is grounded in the policy of enforcing the will of the parties we would not even entertain such a sweeping order unless it was perfectly clear that the parties so intended. Even then we would be most cautious in issuing an order which would in effect involve relinquishment of an equity court’s obligation to weigh the circumstances and exercise its discretion in each instance. Boys Markets, supra, 398 U.S. at 253-254, 90 S.Ct. 1583; Parade Publications, Inc. v. Philadelphia Mailers Union No. 14, 459 F.2d 369 (3d Cir. 1972).
Since we intend to enforce the award, as interpreted to apply only to illegal work stoppages over the machine shop seniority dispute that arose in July 1969, we must consider both whether the issue is now moot and whether we can enforce this order directed at “employees” against their union. The Supreme Court has held that cease and desist orders of the National Labor Relations Board are not moot simply because the picketing at issue had ceased before its issuance, when one cannot say there is no danger of recurrent violation. Local 1976, United Bhd. of Carpenters and Joiners of America v. N. L. R. B., 357 U. S. 93, 97 n. 2, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958). Here similarly we cannot say there is no danger of recurrent violation. The grievance filed by the Union on behalf of the three machinists was never processed, though apparently requests were made even after the strike ended. We cannot be absolutely certain even now that a work stoppage over the original dispute will not recur. Division 1287, Amalgamated Ass’n of Street, Electric Ry. & Motor Coach Employees v. Missouri, 374 U.S. 74, 83 S.Ct. 1657, 10 L.Ed.2d 763 (1963). More significantly, we are far from sure that other work stoppages in violation of Article XI, Section 1 will not occur during the remaining term of this Agreement. Indeed, both parties admit that one brief stoppage did occur in 1971. Since the basic dispute here is over the enforceability of arbitrators’ awards under Article XI, there is a real possibility that it will recur if not resolved. Papaliolios v. Durning, 175 F.2d 73 (2d Cir. 1949). 6A Moore’s Federal Practice ¶ 57.13. Indeed, if we were to hold it moot, the employees could forever prevent judicial resolution of the issue by returning to work each time just before a decision is issued. We note that at least one court has in an analogous circumstance, found the issue not moot even though the collective agreement under which the award was issued had expired. Pacific Maritime Association, supra.
Nor is there merit in the claim that the order which enjoins “employees” cannot be enforced against the Union. First, it is not at all clear whether a § 301 suit for injunctive relief lies against individual strikers. The cases raising the liability of individuals have involved money damages and found against such liability. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); Williams v. Pacific Maritime Ass’n, 421 F.2d 1287 (9th Cir. 1970); Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers International Union, 452 F.2d 49, 54 (7th Cir. 1971) (reserving question of individual liability for strike injunction). Moreover, even if individuals could be directly sued, it would not necessarily follow that a suit against the Union would not lie. Section 301(b) specifically provides that a “labor organization may . be sued ... in behalf of the employees whom it represents in the courts of the United States.” 29 U.S.C. § 185(b). This Union's status as representative of the employees is also explicitly recognized in the Agreement. It would certainly frustrate the policies of the federal statute and the intention of the parties were relief against as many as 5000 employees for the same contract violation available only after service of and provision of an opportunity for defense to each and every individual.
We turn now to the damage suit. The two defendants [hereinafter the Union] claims that the suit was properly dismissed by summary judgment since the claim for damages as a result of the alleged breach of the no-strike clause was subject to arbitration under the Agreement. The Corporation, although admitting that the issue is arbitrable, claims it is no longer obliged to submit to arbitration because the Union’s conduct amounted to repudiation of the Agreement’s arbitration provision. The Corporation argues vigorously that the facts of this case are very different from those in the leading repudiation case-of Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers International, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962), and that the Union’s conduct here, unlike there, constitutes repudiation of the arbitration provision as a matter of law. The Union similarly urges us to decide whether the conduct here constitutes repudiation, in light of Drake Bakeries and Local 721, United Packinghouse, Food & Allied Workers v. Needham Packing Co., 376 U.S. 247, 84 S.Ct. 773, 11 L.Ed.2d 680 (1964).
We find, however, that in light of International Union of Operating Engineers, Local 150 v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972), the issue of repudiation is for the arbitrator, not us. There the Supreme Court held that the equitable defense of laches even though “extrinsic” to the arbitral process was encompassed within an arbitration provision covering “any difference” and thus an issue for the arbitrator. The dissent noted the implications of that holding for “other affirmative defenses that go to the enforceability of a contract”. 406 U.S. at 497, 92 S.Ct. at 1716. We believe that if the equitable defense of laches, which is a general defense not limited to contract suits nor dependent on the provisions of the contract, can be subject to an arbitration provision, then certainly the legal defense of repudiation, which necessarily requires an interpretation of the meaning of the contract and the intent of the parties, can be subject to an arbitration provision, if covered by its terms. In this Agreement, the word “grievance”, as to the employer, is defined in the opening definitional Article as:
“dissatisfaction and complaint by the Employer with any act or failure to act by the Union on members or representatives of the Union.”
Although awkwardly worded, we read this clause as applying to any action or failure to act by the Union to induce its members or representatives to do something. We think it therefore clearly covers the Union’s failure to induce its representatives to abide by their alleged agreement to arbitrate the machine shop dispute, its failure to prevent its members from striking both before the grievance it filed could be processed and after the cease and desist order was issued, its encouragement of mass picketing and violence, and its failure to induce members to accept the arbitrator’s award as to the machine shop dispute, which are essentially the five allegations of the Corporation as to repudiation. However, whatever doubts we may have as to the proper interpretation of the oddly-phrased grievance definition are dispelled by Section 7 of the Grievance Procedure Article, Article IV:
“In the case of any question involving the interpretation or application of this Agreement, or affecting employes of more than one department, the first two (2) steps of the grievance procedure shall be omitted. . . .”
This sentence obviously intends to identify two subclasses of the general class of grievances subject to the procedure for special treatment. It is indisputable that the question of what conduct, if a breach, constitutes repudiation of the arbitration provision is a “question involving the interpretation or application of this Agreement” and thus an arbitra-ble grievance.
The Corporation has asked us, should we find arbitration necessary, to stay the action pending arbitration rather than affirm the dismissal. It cites language in Drake Bakeries to the effect that such a procedure is the only means of preserving both the no-strike and arbitration clauses. 370 U.S. at 264, 82 S.Ct. 1346. But that case was decided in the district court on a motion for a stay pending arbitration and thus the only alternatives before the Supreme Court were affirmance or reversal of the stay. Since we see no statute of limitations problem, Mass.Gen.Laws Ann. ch. 260, §§ 1, 2, and since several other issues could be presented to the arbitrator which might obviate the need for future litigation, we believe the district court properly denied the plaintiff’s request and dismissed the action.
No. 72-1112 reversed and remanded for entry of an order enforcing the arbitrator’s award; No. 72-1113 affirmed.
. In light of our interpretation of the award, we find no merit in the Union’s complaint, grounded in Philadelphia Marine Trade Ass’n, supra, 389 U.S. at 74-76, 88 S.Ct. 201, that the award lacks sufficient specificity to be enforced by an injunctive order.
. The Union argues that since the Corporation had, at the arbitration hearing, requested specific other relief against the Union, which request was denied by the arbitrator, it cannot now seek relief against the Union. Since we find that the Union can be sued and made subject to a court order as the representative of the employees restrained by the arbitrator’s award, the Union’s argument is irrelevant.
. Tlie plaintiff, assuming that if we ordered arbitration, it would be on the damage claim, spoke of arbitration “on the merits” of its claim. The defendant, properly solicitous of its rights, argued that the Corporation was improperly attempting to keep procedural questions, such as the timeliness of the arbitration claim, particularly in light of the Corporation’s failure to request damages at the time it sought the cease and desist order, as the Agreement provides, from the arbitrator’s reach. If the plaintiff intended to make that argument, we must reject it entirely. Flair Builders, supra; John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
21
] | songer_state |
Jane J. SMITH, Executrix of the Estate of Michael J. Smith, Plaintiff-Appellant, v. UNITED STATES of America, Lawrence B. Mulloy, Defendants-Appellees.
No. 88-3177.
United States Court of Appeals, Eleventh Circuit.
July 11, 1989.
W.F. Maready, Petree, Stockton & Robinson, G. Gray Wilson, Winston-Salem, N.C., for Jane J. Smith.
Gary W. Allen, Torts Branch/Civ. Div., U.S. Dept, of Justice, Washington, D.C., John W. Adler, Adler, Kaplan & Begy, Michael McQillen, Catherine Tinker, Chicago, Ill., for defendants-appellees.
Gary W. Takacs, Asst. U.S. Atty., Tampa, Fla., for U.S.
Before RONEY, Chief Judge, COX, Circuit Judge and MORGAN, Senior Circuit Judge.
RONEY, Chief Judge:
Navy Commander Michael J. Smith was one of the crew members killed aboard the space shuttle Challenger when it exploded about 74 seconds after its launch on January 28, 1986. In this negligence action, Jane J. Smith, as executrix of her husband’s estate, sued the United States and Lawrence B. Mulloy, the Manager of the National Aeronautics and Space Administration's [NASA] Rocket Booster Program at Marshall Space Flight Center, for damages and injunctive relief. The plaintiffs initially sued, but have now settled with the manufacturer. The district court, relying on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and its progeny, granted the Government’s motion to dismiss the claims against the Government and the individual defendant. For the purpose of the motion to dismiss, it was assumed the complaint accurately alleges that the accident was caused by the failure of the aft field joint on the right-hand solid rocket motor. We affirm.
As for plaintiffs claims against the United States, we affirm on the basis of the well-reasoned opinion of the district court in Smith v. Morton Thiokol, (M.D.Fla.1988), 712 F.Supp. 893 (N.D.Fla.1988). Although plaintiff argued on appeal that the district court erred in failing to grant her discovery against the United States, since it is clear from the face of the complaint that this action is barred, there was no reversible error in prohibiting plaintiff from discovery against the United States.
In a subsequent order, the district court granted the motion to dismiss for lack of jurisdiction the claim against defendant Lawrence B. Mulloy, a civilian employee of NASA, a Government agency. Without discussion, the court held that the Feres doctrine bars suit on a state law tort claim against civilian government employees when injury to a person in military service occurs during activity incident to military duty, citing Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982), and Uptegrove v. United States, 600 F.2d 1248 (9th Cir.1979), cert. denied, 444 U.S. 1044, 100 S.Ct. 732, 62 L.Ed.2d 730 (1980).
Even though Feres addressed the issue of sovereign immunity, courts, relying on the same policy reasons that bar suit against the Government for tort claims arising out of military service, have applied the Feres doctrine to immunize military defendants in their individual capacities. The Supreme Court has relied on Feres to bar claims of constitutional violations raised under 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) against individual defendants, both military, and civilian.
The Circuit courts have held that state law claims as well as federal law claims are so barred, both as to military employees, and as to civilian employees. It is of no consequence that plaintiff seeks recovery not only on behalf of Smith’s estate but on behalf of herself and the three minor children. We follow these cases which emphasize the activity in which the plaintiff was involved, an activity “incident to service,” as the controlling factor, not the status of the tortfeasor. Thus, the district court properly held that there was a lack of subject matter jurisdiction over the claims against defendant Mulloy.
Subsequent to the district court’s order in this case, Congress passed legislation that provides an additional reason for dismissing plaintiffs claims against Mulloy. On November 18, 1988, Congress passed the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, 102 Stat. 4563. The new law, which is retroactive, provides that the exclusive remedy for individuals allegedly harmed by common law torts committed by Government employees acting within the scope of their employment is through an action against the United States under the FTCA. This new legislation apparently would apply to this case, foreclosing plaintiffs suit against Mulloy in his individual capacity.
AFFIRMED.
. Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).
. United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987).
. Mattos v. United States, 412 F.2d 793, 794 (9th Cir.1969) (parents of deceased soldier barred from suing fellow servicemember); Bailey v. DeQuevedo, 375 F.2d 72, 74 (3d Cir.1966) (medical malpractice suit against army physician brought under state law barred), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967).
. Jaffee v. United States, 663 F.2d 1226, 1234-35 (3d Cir.1981) (en banc) (suit barred against Government officials for intentional torts), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982); Uptegrove v. United States, 600 F.2d 1248, 1250-51 (9th Cir.1979) (negligence action against civilian FAA Air Traffic Controllers prohibited), cert. denied, 444 U.S. 1044, 100 S.Ct. 732, 62 L.Ed.2d 730 (1980); Hass v. United States, 518 F.2d 1138, 1143 (4th Cir.1975) (negligence suit against civilian stable employees of the Marines barred).
.See Martinez v. Schrock, 537 F.2d 765 (3rd Cir.1976) (army surgeon immune from suit brought by representative of deceased’s estate under both a survival and wrongful death claim), cert. denied, 430 U.S. 920, 97 S.Ct. 1339, 51 L.Ed.2d 600 (1977). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. | [] | [
0
] | songer_r_natpr |
SOUTHWESTERN TOOL CO. et al. v. HUGHES TOOL CO.
No. 1625.
Circuit Court of Appeals, Tenth Circuit.
July 1, 1938.
Arthur C. Brown, of Kansas City, Mo. (Herbert K. Hyde, of Oklahoma City, Okl., on the brief), for .appellants.
George I. Haight, of Chicago, 111. (Jesse R. Stone, of Houston, Tex., and B. A. Ames, of Oklahoma City, Okl., on the brief), for appellee.
Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.
BRATTON, Circuit Judge.
This is an action instituted by Hughes Tool Company against Southwestern Tool Company and Emil Dufek for infringement of three patents. Reference will be made to the parties as they were denominated in, the trial court. Plaintiff alleged in conventional manner that it owned letters patent Number 1,320,384 issued to Louis A. God-bold and Harold W. Fletcher in 1919, letters patent Number 1,480,014 issued to Floyd L. Scott in 1924, and letters patent Number 1,647,753 issued to F. L. Scott and L. H. Wellensiek in 1927; and that defendants Had infringed each and all of them. The defenses pleaded in the answer were invalidity, noninfringement, laches and estoppel ; but invalidity was expressly waived at the trial.
The court found that claims 3 and 4 of the first patent, claims 1, 2, 3, and 4 of the second, and claims 2, 3, 4, and 5 of the third were valid; and that defendants had infringed them. Decree was entered enjoining further infringement, and referring the cause to a master for accounting on the question of gains and profits. Defendants appealed.
Each of the patents relates to conical cutters for rotary drills in drilling oil- and gas wells. The first is entitled “Drill-Cutter”, and recites that it is designed as an improvement upon a patent issued to Hughes in 1910. Drill bits of the kind involved here consist of a bit head having a threaded shaft or spindle integral therewith, on which a plurality of conical shaped cutters are mounted to rotate on the surface at the bottom of the hole in drilling operations. The cutter consists of a bushing threaded on the inside and having a seat or shoulder at its top, a retaining ring threaded on its outer periphery and having a lateral hole, and a cone shaped toothed cutter shell threaded on the inside at the base. Prior to the advent of the patent the parts were assembled and disassembled in the field, each being attached or detached separately. In assembling, the retaining ring was first positioned in the seat or shoulder on the bushing, and the bushing was then threaded upon the shaft. The cutter shell was then positioned on the bushing and threaded into engagement with the retaining ring. In disassembling the inverse order was followed. The method was inefficient in that the bushing was exposed to dirt or water containing grit and mud. The invention of the patent is directed to the assembly of the three parts as a unit upon the shaft, and to the removal of them as a unit. It discloses holes in the cutter shell, retaining ring, and bushing, in alignment. The bushing is inserted withiss the recess in the cutter shell; the retaining ring is then positioned on the shoulder of the bushing and threaded into the cutter shell. A pin or wrench is then inserted through the aligned holes in the cutter shell and retaining ring, and into the hole in the bushing. The three parts are thus held together and mounted for operation by means of the bushing being threaded upon the shaft. The pin or wrench is then withdrawn and the holes are closed by a set screw or locking pin inserted through the opening in the cutter shell and threaded within the hole in the retaining ring, thus holding the cutter shell and retaining ring rigidly together and permitting their rotation around the bushing. The method disclosed in the patent enables assembly in the shop and ready mounting of the three parts as a unit, also dismounting as a unit and disassembly in the shop.
The second patent is entitled “Self-Cleaning Roller Drill”, and is directed to the formation of the teeth upon each cutter. It discloses an arrangement and spacing of teeth in such manner that when the cutters are mounted on the shaft the teeth will interfit without contact with each other, and will clear each other of material having a tendency to gather and adhere to them. The first and second patents were under consideration in Hughes Tool Co. v. International Supply Co., 10 Cir., 47 F.2d 490, the court holding that the two claims in the first were valid and infringed, and that the four in the second were not infringed.
The third patent is likewise directed to the formation of the teeth on the cones. It discloses teeth arranged in circumferential rows with apparent parallel sides, the teeth on one cutter being distanced slightly different from the base of the cone than those on the other, and the spaces between the teeth being cut deep to provide long, narrow, penetrating teeth, referred to as chisels. The advantages claimed for the construction are assistance in the rotation of the cutter and more effective penetration of the teeth.
The teeth wear rapidly during operation, the degree of rapidity depending upon the kind of formation being penetrated. A cone lasts from eight to forty-eight hours, the average life being from twelve to fifteen hours. Until shortly before the institution of this suit plaintiff sold complete bits including the cones without restriction or reservation in respect to replacement of cones; and it sold cones or cutters separately for use in replacements. In most instances deteriorated cones were replaced with new ones, but in some rebuilt or restored cones were used, and plaintiff rebuilt and restored cones for sale as such replacements.
The offending acts of infringement upon which the decree rests consist of purchasing worn out cones from drillers and junk dealers, rebuilding or restoring the teeth, sometimes furnishing new bushings and new retaining rings, and then selling them back to customers of plaintiff for reuse in connection with the bit heads originally purchased from plaintiff.
The finding of infringement is challenged on the ground that the patents embrace a combination of elements, all of which are deemed in law to be material; and that defendants do not employ all of them or their mechanical equivalent. As we understand it, the argument is that a cone consists of four elements — the bushing, the cutter shell, the retaining ring, and the device for holding the three together while the unit is being attached to or detached from the shaft; and that defendants do not use or employ the last one. The contention cannot be sanctioned. The cone consists of three constituent elements. They are the bushing, the toothed cutter, and the retaining ring; and defendants use all of them. The device for holding them together as a unit for attachment or detachment is merely a wrench or tool, not a constituent element of the device. But it would be of no avail to defendants to regard the wrench or tool as an element. They purchase worn out and discarded cones from contractors and junk dealers, take them to their shop, burn material from the face of the cutter down to surface, add new metal on the face by welding, cut new teeth, sharpen the teeth, replace the bushings and retaining rings with new ones, and then sell them back to customers of plaintiff with the intention and purpose of reuse or further use in connection with the bit heads purchased from plaintiff. The furnishing of one or more of several parts of a patented combination with the intention and purpose that the part or parts furnished shall be assembled with the other parts and the combination used as a unit is contributory infringement of the patent covering the complete combination. Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816; Dental Co. of America v. S. S. White Dental Manufacturing Co., 3 Cir., 266 F. 524; Elliott Addressing Machine Co. v. McParlan, 2 Cir., 80 F.2d 870.
It is further contended that the finding of infringement cannot be sustained for the reason that the evidence fails to show that defendants intend to or actually shape, arrange, and mount the teeth on their cones in substantial identity with the disclosures of the second and third patents. Cones manufactured and sold by plaintiff, and cones sold by defendants were offered in evidence and are before this court There was testimony by an expert witness that the construction of the teeth was exactly alike; that there was no particular difference between them; and that the only difference was in the use of rebuilt metal. There may be colorable differences between the conjoint invention of the patents and the cones sold by defendants, but they are insubstantial. A colorable departure from a patent does not avoid infringement. Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 50 S.Ct. 9, 74 L.Ed. 147; Skinner Bros. Belting Co. v. Oil Well Improvements Co., 10 Cir., 54 F.2d 896.
Defendants assert that their acts ■constitute permissible repair and restoration of worn cones — not infringing manufacture or remaking in the sense of reconstruction. The nature and extent of the work done upon the cones has already been detailed. When a patentee sells a patented article without restrictions it passes outside the monopoly and the owner may use or sell it to another without liability for infringement, Cream Top Bottle Corp. v. Bailes, 10 Cir., 62 F.2d 714; and the purchaser of a machine or mechanical device consisting of several parts and covered by a patent on the whole as a unit has the right to repair ■or replace worn or broken parts, provided the machine as a whole still retains its identity and the parts repaired or replaced do not so dominate the structural substance of the whole as to constitute making the machine or device anew, and provided further that the parts so repaired or replaced are not separately covered by a patent. Here ■the first patent is for the assembly of a bushing, a retaining ring, and a cutter; and the second and third patents relate to teeth ■on the cutter. The defendants furnish new bushings and new retaining rings, and they •add new teeth to cutters. They furnish parts that are specifically covered by the •patents and then sell the cones for reuse. 'That is well outside the domain of permis•sible repair and restoration, and plainly constitutes infringement. American Cotton-Tie Company v. Simmons, 106 U.S. 89, 1 S.Ct. 52, 27 L.Ed. 79; Shickle, Harrison & Howard Iron Co. v. St. Louis Car-Coupler Co., 8 Cir., 77 F. 739; Goodyear Shoe Machinery Co. v. Jackson, 1 Cir., 112 F. 146, 55 L.R.A. 692; Morrin v. Robert White Engineering Works, 2 Cir., 143 F. 519; National Malleable Casting Co. v. American Steel Foundries, C.C., 182 F. 626; Automotive Parts Co. v. Wisconsin Axle Co., 6 Cir., 81 F.2d 125.
The remaining question is whether defendant Dufek is personally liable for damages arising out of the infringement. Defendant Southwestern Tool Company is a corporation organized under the laws of Texas, with its principal office and place of business at Fort Worth; and Dufek is its president. An officer of a corporation participating in the corporation’s manufacture and sale of an infringing article is not personally liable for damages flowing from such piracy unless he acts wilfully and knowingly, or uses the corporation as an instrument to carry out his own deliberate infringement, or knowingly uses an irresponsible corporation with the intended purpose of avoiding personal liability. Dufek testified that he resided in Oklahoma City; that the defendant corporation did not have an office there; that application had been made for a charter in Oklahoma for a corporation to be known as the Southwestern Tool Company of Oklahoma; that he devoted all of his time to the selling of the cutters, and that a named person at Tonkawa, Oklahoma, was connected with him; that there was no one at his residence to take orders for cutters during his absence; that no one sold them but himself; that he went around to contractors and junk dealers and bought worn out cones; that they were then shipped or he hauled them to the shop of the corporation at Fort Worth where they were put in condition for resale; and that some remained there until they were delivered to purchasers, and some were freighted to Oklahoma City and stored until needed. He said “I take the cone in * * *. I take it into the shop and rebuild it. * * * We take it in the shop and burn the grease all off of it so as to get down to the surface. We rebuild it with an acetylene torch. * * * The cone is absolutely worn out when I pick it up to where it won’t dig and I resharpen them.” The testimony and the inferences reasonably to be drawn from it point to the conclusion that during the period in question Dufek dominated the corporation; that he wilfully and knowingly participated in the acts of infringement; and that he used the corporation as an instrument to carry out his own deliberate infringement. He is, therefore, jointly liable with the corporation for the damages resulting from the wrongful acts. National Cash-Register Co. v. Leland, 1 Cir., 94 F. 502; Hitchcock v. American Plate Glass Co., 3 Cir., 259 F. 948; Dangler v. Imperial Machine Co., 7 Cir., 11 F.2d 945; Claude Neon Lights, Inc., v. American Neon Light Corporation, 2 Cir., 39 F.2d 548; Denominational Envelope Co. v. Duplex Envelope Co., 4 Cir., 80 F.2d 186; Federal Trade Commission v. Standard Education Society, 2 Cir., 86 F.2d 692.
The decree is affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. | This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
3
] | songer_appel2_1_3 |
Albert J. FIRCHAU, Emma Firchau Sallender, both individually, and Albert Firchau and Emma Firchau Sallender, as Trustees and as Assignees of Western Oregon Trucking Corporation, Inc., a dissolved Oregon corporation, Firchau Logging Co., Inc., a Nevada corporation, and Independent Loggers and Contractors, Inc., an Oregon corporation, Appellants, v. DIAMOND NATIONAL CORPORATION, a Delaware corporation, Appellee.
No. 19526.
United States Court of Appeals Ninth Circuit
April 26, 1965.
Clarence H. Pease, Sacramento, Cal., for appellants.
Arthur R. Albrecht, Craig McAtee, McCutchen, Doyle, Brown, Trautman & Enersen, San Francisco, Cal., for appellee.
Before CHAMBERS, HAMLEY and BROWNING, Circuit Judges.
HAMLEY, Circuit Judge:
On January 24,1963, Albert J. Firchau and others commenced this action against Diamond National Corporation (Diamond) to recover damages in the sum of $1,500,000 for breach of contract. The action was filed in the Superior Court of the State of California in and for the County of Tehama, and was removed to the federal district court because of diversity of citizenship. On motion of Diamond the complaint, in which one claim was asserted, was dismissed on October 17,1963.
A first amended complaint, purporting to state two claims, was filed on November 21, 1963. The first claim was in general similar to that stated in the original complaint, and sought relief in the same amount. The second claim was stated in the alternative and sought damages in the sum of $1,297,500.
On motion of Diamond, the district court also dismissed the first amended complaint on June 25, 1964. On July 21, 1964, plaintiffs filed a notice of appeal “ * * * from the Order dismissing the second claim as pleaded in the first amended complaint. * * * ” The court entered a final judgment dismissing the action on July 24, 1964. No further notice of appeal was filed.
Diamond has moved to dismiss the appeal for lack of jurisdiction in this court. The company argues that the order of June 25,1964, dismissing the first amended complaint, is not an appealable order; that Firchau’s purported appeal therefrom is therefore ineffectual; and that no appeal was taken from the subsequently-entered judgment dismissing the action.
An order which dismisses a complaint without expressly dismissing the action is not, except under special circumstances, an appealable order. Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 643. The special circumstances under which this court will regard such an order as final, and therefore appealable, must be such as to make it clear that the district court determined that the action could not be saved by any amendment of the complaint. Marshall v. Sawyer, supra, at 643.
Assuming such circumstances did not exist in this case, the question remains whether the notice of appeal, filed on July 21, 1964, may not be regarded as running against the subsequently-filed final judgment of dismissal.
This court is extremely liberal in accepting as sufficient for the purposes of a notice of appeal informally drawn and improperly labeled documents. Poe v. Gladden, 9 Cir., 287 F.2d 249, 251; Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282. In this spirit, we regard the notice of appeal here in question as directed to the final judgment of dismissal, overlooking as a technical defect not affecting substantial rights, the premature filing of that notice.
The Supreme Court of the United States similarly viewed a notice of appeal filed before entry of the final decision in a criminal proceeding. See Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3. It did so in view of Rule 52(a), Federal Rules of Criminal Procedure, reading: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Since a substantially similar provision is contained in Rule 61, Federal Rules of Civil Procedure, we think the rationale of Lemke supports our view as expressed above. The motion to dismiss the appeal is denied.
On the merits, Firchau questions only the dismissal of the second claim of the first amended complaint, making no issue of the dismissal of the first claim stated in that pleading.
In his second claim Firchau alleged that he and Diamond, during the winter of 1960 to 1961, entered into an oral contract wherein Firchau agreed to cut and deliver to Diamond’s Red Bluff or other plants, forty-five thousand M board feet of logs for a minimum price of $22.75 per thousand. Firchau further alleged that, on or about April 1, 1961, Diamond anticipatorily breached that oral contract, to Firchau’s damage in the amount of $1,297,500.
In dismissing this claim for failure to state a claim on which relief can be granted the district court held that the claim is barred by California Code of Civil Procedure § 339(1). That statute provides that an action upon a contract not founded upon an instrument in writing must be brought within two years after the accrual of the cause of action. According to the allegations of the first amended complaint, the cause of action on the second claim accrued on April 1, 1961. The district court held that the action upon that claim was not brought until November 21, 1963, when the first amended complaint was filed.
Firchau argues here, however, as he did in the district court, that the second claim relates back to the date of the original complaint, and since he filed the latter pleading on January 24, 1963, which was less than two years after the accrual of the cause of action on the second claim, the California two-year statute of limitations does not bar that claim.
Consideration of this argument requires us to compare the allegations contained in the original complaint with those set out in the second claim of the first amended complaint. See Sidebotham v. Robison, 9 Cir., 216 F.2d 816, 823.
In the original complaint Firchau alleged that, in February, 1959, he and Diamond entered into an oral contract having a term of four years. This contract, Firchau alleged, pertained to timber operations on Diamond’s lands in Shasta and Tehama Counties, California, including logging, road construction, and the hauling of logs to Diamond’s plant at Red Bluff, California, and elsewhere. Under the terms of this so-called “Master Agreement,” plaintiff averred, he was to log forty-five thousand M board feet each year from forest areas then generally designated, but to be thereafter specifically designated. Under this agreement, Firchau alleged, he was to haul these forest products to Diamond’s plants and, during the first year he was to receive from twenty to twenty-two dollars per thousand net Scribner Decimal C scale for the logs, depending on the named area from which they were taken.
Firchau further alleged in his original complaint that, under the master agreement: (1) Firchau would build logging roads in such areas and for such prices as would be determined by the parties from time to time; (2) the' price per thousand in successive years would be negotiated from a base price of twenty-two dollars per thousand depending upon variances in the cost of labor and parts, and the length of haul; (3) Firchau would purchase from Diamond certain equipment, payment to be made by deducting one dollar per thousand board feet for all deliveries made by Firchau under the master agreement; and (4) the actual areas to be logged from year to year would be in accordance with a described five-year logging program.
Firchau also alleged in the original complaint that pursuant to the master agreement: (1) he and Diamond entered into a subordinate written agreement on February 17, 1959, covering logging and associated operations from April 1 to December 15, 1959 ; (2) pursuant to this subordinate written agreement, he cut, logged and delivered forty-seven thousand M board feet during the 1959 season; (3) he and Diamond entered into a substantially similar subordinate written agreement on February 8, 1960, covering logging and associated operations from March 1 to December 1, 1960; and (4) pursuant to this second subordinate written agreement, he cut, logged and delivered forty-nine thousand M board feet during the 1960 season. The original complaint (Paragraph XVI) then contains the critical allegations quoted in the margin.
In the second claim of the first amended complaint, after incorporating by reference certain introductory paragraphs of the original complaint, Firchau stated his claim as follows:
“That plaintiffs and defendant did during the winter of 1960-1961 enter into an oral contract wherein and whereby plaintiffs would cut, log and deliver to defendant’s Red Bluff or other plant, 45,000 M. board feet of logs for a minimum price of $22.75 per M. On or about April 1, 1961, defendant wrongfully and unlawfully anticipatorily breached said contract all to the damage of plaintiffs in the amount of $1,297,500.00. Plaintiffs have performed all covenants and conditions precedent required of them by said oral logging contract.”
This being a diversity action arising under the laws of California, California Code of Civil Procedure § 339(1) providing that actions upon a contract not founded upon an instrument in writing must be brought within two years, controls. We need not decide whether California law also controls in determining whether, for the purposes of applying that statute, the second claim stated in the first amended complaint relates back to the original complaint. This is true since we would reach the same conclusion in this case whether or not California law applies.
In California, as stated in Austin v. Massachusetts Bonding & Insurance Co., 56 Cal.2d 596, 601, 15 Cal.Rptr. 817, 819, 364 P.2d 681, 683 the amended complaint would be deemed filed as of the date of the original complaint “ * * * provided recovery is sought in both pleadings on the same general set of facts.” And, under Rule 15(c), Federal Rules of Civil Procedure, such an amendment relates back to the date of the original pleading: “[w]henever the claim * * * asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading * *
In holding that the second claim of the first amended complaint did not relate back, the district court recognized that Diamond’s alleged conduct of April, 1961, may have constituted a breach of both the master agreement as alleged in the original complaint and the oral agreement of 1960 to 1961 alleged in the second claim of the first amended complaint. But, the district court stated, the second claim arises out of an entirely new and different contract than was set forth in the original complaint. Accordingly, the court concluded, there was nothing in the original complaint which would place defendant on notice of such a contract.
Firchau argues that the second claim of the first amended complaint pleads a contract implied in fact arising out of conduct of the parties referred to in the original complaint. Accordingly, he urges, the second claim is but an alternative count which relates back to the initial pleading.
The main thrust of the original complaint is that Diamond breached an oral master agreement to enter into a subordinate cutting and hauling contract for the 1961 and 1962 seasons. In the course of stating that claim, however, facts are alleged which, considered together, provide considerable foundation for a claim that by reason of the course of conduct of the parties in the winter of 1960 to 1961 and prior thereto, a contract is to be implied in fact covering the 1961 season. These alleged facts concern the purchase by Firchau of Diamond’s equipment on a payment rate requiring three logging seasons, and the conduct of Diamond and Firchau leading into the 1961 season, as set out in the first few lines of Paragraph XVI, quoted in note 3. A contract implied in fact covering the 1961 season would not necessarily have been inconsistent with what we have referred to as the main thrust of the original complaint.
It therefore appears to us that if the second claim of the first amended complaint states a claim on a contract implied in fact, covering the 1961 season, arising out of the conduct of the parties, it has sufficient foundation in the facts alleged in the initial pleading to require application of the doctrine of relation back.
Diamond argues, however, that the second claim does not plead a contract implied in fact, but an express oral contract.
We agree. A contract implied in fact is not expressed in words but is implied from the promisor’s conduct. California Civil Code § 1621, Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947, 959; Iusi v. Chase, 169 Cal.App.2d 83, 337 P.2d 79, 82. An oral contract, on the other hand, is one in which the promisor’s undertaking is expressed in words, such words not being reduced to writing. See Treadwell v. Nickel, 194 Cal. 243, 228 P. 25, 33. See also, Rogers v. American President Lines, Ltd., 9 Cir., 291 F.2d 740, 742.
The first claim of the first amended complaint contains substantially the same facts pertaining to the conduct of the parties as the original complaint. As before noted, Firchau does not contest the dismissal of that claim. His second claim in the first amended complaint, however, makes no reference to the facts alleged in the original complaint which we have held provide a considerable foundation for a claim based on a contract implied in fact. It is based expressly and exclusively upon an alleged “oral contract” entered into during the winter of 1960 to 1961.
It is unnecessary for us to determine whether an oral contract of the kind alleged in Firchau’s second claim, relates back to the original complaint, because he indicates he does not want an opportunity to prove that kind of contract. We have held, however, that a claim based on an implied contract arising from the conduct of the parties would relate back. Firchau believes he can prove such a claim. Under these circumstances we think it appropriate to afford him an opportunity to present to the district court the question of whether he may further amend his complaint to set out such a claim.
Therefore, adapting the technique followed by this court in Evans v. Carroll & Co., 9 Cir., 259 F.2d 577, 579, the judgment is reversed as to Firehau’s second claim, and the cause is remanded for the purpose of further proceedings. This will enable Firchau, if he so desires, to move for leave to amend his pleadings to present a claim based on a contract implied in fact arising from the conduct of the parties for which there is a substantial foundation in the allegations of the original complaint.
In the exercise of its discretion in acting upon such a motion the district court may, if it grants the motion, prescribe as a condition reasonable terms compensating appellee for any loss or expense occasioned by Firchau’s failure to file adequate pleadings in the first instance. In the event no such motion is made, or is for good cause denied, final judgment for Diamond may be entered. Because of the special circumstances of this case Diamond, as appellee, will recover its costs on this appeal notwithstanding the fact that the judgment is reversed, as to Firchau’s second claim.
. See, also, United States v. Arizona, 346 U.S. 907, 74 S.Ct. 239, 98 L.Ed. 405; Hoiness v. United States, 335 U.S. 297, 300, 69 S.Ct. 70, 93 L.Ed. 16.
. Firchau alleged that at the time the first subordinate written agreement was negotiated Diamond advised him that the logging phase of the master agreement would have to be specifically written from year to year pursuant to the master agreement because:
“1) Defendant could not then project a precise area of logging operations for more than a year in advance although defendant had tentative annual areas designated on its said master program maps, and
“2) Defendant couldn’t fix the price per M. to be paid quite so far in advance because of labor and parts costs and haul variances, and
“3) A specifically written logging contract would be developed from year to year pursuant to said Master Agreement, and
“4) That plaintiffs did not need a longer term written logging contract in view of the fact they were going to have a three (3) year equipment purchase contract.”
. “That from the conclusion of logging operations at the end of the said 1960 cutting season until on or about the 1st day of April 1961, plaintiffs, in reliance upon the covenants of said Master Agreement on the part of defendant and upon the conduct of defendant which in no way indicated any doubt or question to plaintiffs but that plaintiffs would be allowed to perform said Master Agreement during the 1961 cutting season, made all their winter plans and necessary preparations for the continued operation pursuant to said Master Agreement for the cutting season of 1961; that thereafter and on or about the 1st day of April 1961, plaintiffs were first summarily notified by defendant that defendant did not propose to enter into any further annual logging and hauling contracts pursuant to said Master Agreement or otherwise with plaintiffs and that if plaintiffs desired to do any logging or hauling operation for defendant during the year of 1961, they must submit a bid therefor, competitive to the entire industry. Plaintiffs necessarily, and under protest, submitted such a bid on the 11th day of April 1961. * * * That thereafter and on the 28th day of April 1961, defendant did, in writing, reject plaintiffs’ bid by letter executed by said ROY D. BERRIDGE. * * *
“That by adopting said bid procedure over plaintiffs’ objection and rejecting the bid of plaintiffs, defendant, without cause or provocation did wilfully, unlawfully, maliciously and oppressively breach said Master Agreement resulting in unmitigated hardship upon plaintiffs and each of them. That plaintiffs performed nil the covenants and conditions precedent required by and of them to be performed by said Master Agreement at the time of the said breach thereof by defendant.”
. In Austin, at page 819 of 15 Cal.Rptr., at page 683 of 364 P.2d, the court noted that “ * * * subdivision (c) of Rule 15 of the Federal Rules of Civil Procedure, * * * adopts the modern rule * ^
. Contrary to Diamond’s view, the oral master agreement, as pleaded in the original complaint, did not require that the subordinate annual contracts be in writing. That contract, alleged to have been entered into “ * * * during or about the first week in February, 1959 * * * ” required only that the areas to be logged “ * * * would be specifically designated by defendant. * * Firchau would build logging roads in such areas and for such prices “ * * * as would be determined by parties hereto from time to time. * * and the price in successive years after 1959 would “ * * * be negotiated. * * * ” It is true that, as alleged in the original complaint, the parties subsequently entered into written subordinate contracts for the 1959 and 1960 season “ * * * pursuant to said Master Agreement.” But that pleading does not on its face establish that oral subordinate contracts would not have been sufficient compliance with the Master Agreement. According to the initial pleading, at the time the first written subordinate contract was negotiated, Diamond advised Firchau that “[a] specifically written logging contract would be developed from year to year pursuant to said Master Agreement. * * * ” However, Diamond’s willingness to manifest the annual arrangements by a writing, or even its demand that they be so manifested, does not establish that the Master Agreement so required.
In his original complaint Firchau alleged that, on April 1, 1961, Diamond notified Firchau that Diamond “ * * * did not propose to enter into any further annual logging and hauling contracts pursuant to said Master Agreement. * * * ” But this does not necessarily establish that the parties had not already entered into a contract implied in fact covering the 1961 cutting season. It may only mean that Diamond erroneously assumed that, under the master agreement, it would be bound only if the arrangement for that year was reduced to writing.
. These allegations had to do with the purchase by Firchau of Diamond’s equipment on a payment rate requiring three logging seasons, and the conduct of Diamond and Firchau leading into the 1961 season. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
2
] | songer_appbus |
PAGE, Internal Revenue Collector, v. LAFAYETTE WORSTED CO.
No. 2752.
Circuit Court of Appeals, First Circuit.
June 15, 1933.
Rehearing Denied July 26, 1933.
MORTON, Circuit Judge, dissenting.
Charles K. Hoover and Frank J. Ready, Jr., Sp. Attys., Bureau of Internal Revenue, both of Washington, D. C. (Henry M. Boss, Jr., U. S. Atty., of Providence, R. I., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for appellant.
Laurence Arnold Tanzer, of New York City (Francis J. O’Brien, of Providence, R. I., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
The Lafayette Worsted Company brought an action at law in the United States District Court for the District of Rhode Island against Frank A. Page, collector of internal revenue in that district, to recover taxes it claims were illegally assessed and collected. Jury trial was waived, and the case was tried before the District Judge. He entered judgment in favor of the plaintiff for $202,888.-20, with interest from January 19, 1926, and 'the defendant appealed.
The taxes in question are the meóme and excess profits taxes for the years 1918 and 1919. For 1918 the plaintiff’s return showed a tax liability of $811,443.94, which was paid in due course. Upon a reaudit in 1922, the Commissioner determined that the correct tax for 1918 was $801,261.06, and the difference was refunded. For the year 1919 the plaintiff’s return showed a tax liability of $586,-512.98, which was duly paid. Upon a reaudit in 1923 this amount was found to be too large by $4,378.68, and the excess was refunded.
In March, 1923, the plaintiff applied to the Commissioner for a special assessment of its taxes for the years in question under the provisions of sections 327 and 328 of the Revenue Act of 1918 (40 Stat. 1093). This application was granted by the Commissioner. The taxes for both years were accordingly redetermined upon a special assessment, so called. As a result of this special assessment, the Commissioner determined that the plaintiff had been overassessed $81,770.97 for the year 1918, and $86,021.56 for the year 1919. Those amounts were in due course refunded to the plaintiff.
In March, 1924, the Commissioner advised the plaintiff that his determination as to over-assessments for the years 1918 and 1919 was erroneous. Jeopardy assessments of the amounts previously refunded, plus interest and certain penalties, were made forthwith, followed shortly by notice and demand for payment. Litigation followed by which the plaintiff endeavored to prevent the collection of the jeopardy assessments. The plaintiff failed in the litigation; and in January, 1926, it paid the disputed assessments, in the amount of $81,770.97, with interest amounting to $13,014.27, and a penalty amounting to $4,088.55 for the year 1918,- and in the amount of $86^021.56, with interest amounting to $13,691.77 and a penalty of $4,301.08 for the year 1919. The total payments came to $202,888.20, which is the amount sought to be recovered in the present aetion. All payments were made under protest. The plaintiff has complied with all formalities required by law for the maintenance of this aetion.
The ease was tried on a stipulation of facts agreed to by both parties, with the right to introduce further evidence not inconsistent with the facts stipulated. The stipulation clearly covered all the facts relating to the assessment of the taxes for the two years in question, the amounts, and the refunds, and in addition certain correspondence between the Commissioner and the taxpayer relating to the reauditing of the tax, the allowance of the overassessments, and the re-examination of the. taxpayer’s application for reassessment of the taxes for the years under sections 327 and 328 of the 1918 act, and the jeopardy assessment. A deposition of the xYssistant Commissioner of Internal Revenue with certain exhibits thereto attached was offered by the plaintiff as bearing' on the grounds on which the Commissioner reopened the case and reversed his previous findings that there was an overassessment for the two years in question.
The District Court first excluded both the deposition and exhibits on the ground that it disclosed facts with reference to the business of other taxpayers engaged in similar business which should not, as a matter of public policy, be disclosed, and, in addition, was irrelevant to the issues in the case, apparently on the erroneous ground that the burden was on the Commissioner to prove on what grounds he based his jeopardy assessments. Austin Co. v. Commissioner (C. C. A.) 35 F.(2d) 910. Before the case was closed, however, he admitted the exhibits. The deposition was offered and marked and “left with the clerk for any subsequent use which may be made of it by the parties,” but was not admitted.
The bill of exceptions, it is true, does not state that it includes all the evidence bearing on the issue presented by the defendant’s exception; but from the bill of exceptions it clearly appears that the stipulation of facts, with the correspondence referred to, and the exhibits attached to the deposition, constitute all the evidence introduced at the hearing before the District Court, and on which the judge based his judgment. Since the record contains all the evidence on which the District Court based its judgment, the omission to so state in the bill of exceptions does not prevent the appellate court from considering the issue raised by a motion for a judgment for either party; exceptions being taken before judgment to the refusal to grant the motion. Board of Com’rs of Gunnison County v. Rollins, 173 U. S. 255, 19 S. Ct. 390, 43 L. Ed. 689; Crowe v. Trickey, 204 U. S. 241, 27 S. Ct. 275, 51 L. Ed. 454; St. Louis v. Western Union Tel. Co., 148 U. S. 92, 96, 13 S. Ct. 485, 37 L. Ed. 380.
While the motion for judgment by the defendant was not in the usual form, as it assigned as a reason that the plaintiff had not sustained the burden of proof that the taxes of the plaintiff have been overpaid, and that the taxes involved were erroneously assessed and collected, we think it raises an issue of law, if there was no substantial evidence to support a judgment for the plaintiff, or upon the facts stipulated and the evidence no other conclusion could be reached than that the defendant was entitled to judgment. While on a general finding of facts no issue of law is raised by exception to the judgment, Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113, a motion before judgment that judgment he entered for the defendant and refused and exception taken at the time, raises a question of law. Fleischmann Cons. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Maryland Casualty Co. v. Jones, 279 U. S. 792, 795, 796, 49 S. Ct. 484, 73 L. Ed. 960; St. Louis v. Western Union Tel. Co. supra; United States v. Smith (C. C. A.) 39 F.(2d) 851, 855.
The issue raised by the ruling' and exception hero is whether the Commissioner had authority, no fraud by the taxpayer being claimed, or mistake of fact being shown, to change an assessment once made and a refund paid, if done within the period of limitation for the assessment of taxes for the year in question.
The case of Woodworth v. Kales (C. C. A.) 26 F.(2d) 178, is cited as authority to the effect that, without fraud being shown, or mistake of law or in calculation, a Commissioner has no authority on the same state of facts to change an assessment once made and a refund paid. But in that ease the question was as to the value of securities in 3 913, and the change was made, not by the Commissioner who made the first valuation, but by a successor. Sections 1312 and 1313 of the Revenue Act of 1921 (42 Stat. 313), and sections 1006 and 1007 of the Revenue Act of 3924 (26 USCA § 1249 note, and § 1250), would have disposed of the ease without further consideration. The reasoning of the able judge, therefore, has not the weight it might have if it were alone decisive of the ease.
However, later. decisions of the Circuit Courts of Appeals, in the case of Austin Co. v. Commissioner, supra, and Oak Worsted Mills v. United States (Ct. Cl.) 36 F.(2d) 529, Id. (Ct. Cl.) 38 F.(2d) 699, and especially McIlhenny v. Commissioner (C. C. A.) 39 39. F.(2d) 356, 357, which was approved by the Supreme Court in Burnet v. Porter, 283 U. S. 230, 51 S. Cf. 416, 75 L. Ed. 996, establish a contrary rule to that laid down in the Woodworth Case, and governs this ease.
In the Mellhenny Case the court said: “But the sole question presented by the record before ns is not whether the first action of the Commissioner in allowing the deduction was right or wrong, hut whether having once determined the matter, and the tax computed upon such determination hav-
ing been paid, tbe Commissioner had power or authority, in the absence of fraud or other new evidence, to reopen the case, disallow the deduction theretofore allowed by him, and make a redetermination of the tax. In support of their contention that the Commissioner was without power to reopen the ease and make a redetermination, the petitioners, the taxpayer’s executors, rely upon Woodworth v. Kales (C. C. A. 6) 26 F.(2d) 178, and the Commissioner’s order of January 20, 1923, while the Commissioner finds support for his opposite view in Botany Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379; L. Loewy & Son v. Commissioner of Internal Revenue (C. C. A. 2) 31 F.(2d) 652; Holmquist v. Blair (C. C. A. 8) 35 F.(2d) 10; Austin Co. v. Commissioner of Internal Revenue (C. C. A. 6) 35 F.(2d) 910; sections 1312 and 1313 of the Revenue Act of 1921, 42 Stat. 227; and sections 1006 and 1007 of the Revenue Act of 1924, 43 Stat. 253 (26 USCA §§ 1249 note, 1250).. * * *
“In the ease at bar, the statutory procedure was not followed, in that there was no agreement in writing, or otherwise, that the determination and assessment of February, 1924, should be final and conclusive. As a consequence, we axe constrained to hold that the determination and assessment of 1924 were not final and conclusive, ánd that the Commissioner was not estopped or otherwise barred, by the payment and acceptance of the tax based on such determination and assessment, from reopening the case and making the further determination subsequently made by him.”
In passing on the conclusion of the Circuit Court of Appeals in the McIlhenny Case, the Supreme Court in the case of Burnet v. Porter said: “The Court of Appeals sustained the power of the Commissioner upon the authority of McIlhenny v. Commissioner of Internal Revenue [C. C. A.] 39 F.(2d) 356; and was clearly right in doing so.”
We think there was no evidence in the ease at bar to sustain the ruling of the District Court. The judgment is contrary to the law laid down in the McIlhenny Case. It may be noted in passing, too, that - the fact that a penalty was imposed in making the jeopardy assessments indicates that the Commissioner, on re-examination, must have had evidence of some irregularity on the part of the taxpayer.
The judgment of the District Court is reversed, and the ease is remanded to that court, with instructions to order a judgment for the defendant. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. | [] | [
1
] | songer_appfed |
PUBLIC CITIZEN, INC.; McCracken Poston; Ralph Paige; Betty Lee Sargent, Plaintiffs-Appellants, v. Zell MILLER, Governor of the State of Georgia; Max Cleland, Secretary of State of the State of Georgia and Director, Georgia State Board of Elections; Paul Coverdell, Defendants-Appellees.
No. 93-8273.
United States Court of Appeals, Eleventh Circuit.
June 14, 1993.
Kenneth S. Canfield, Doffermyre Shields Canfield & Knowles, Atlanta, GA, for plaintiffs-appellants.
Mark Cohen, Asst. Atty. Gen., Michael P. Kenney, Alston & Bird, Atlanta, GA, for defendants-appellees.
Before FAY and DUBINA, Circuit Judges, and HENDERSON, Senior Circuit Judge.
PER CURIAM:
The judgment of the district court is AFFIRMED for the reasons set forth in the Order entered by that court on January 4, 1993, 813 F.Supp. 821. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. | Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_procedur |
Manuel MENDEZ and Teresa Lastra de Mendez, Appellants, v. H. I. MAJOR, District Director of the Immigration and Naturalization Service, Appellee.
No. 17621.
United States Court of Appeals Eighth Circuit.
Jan. 20, 1965.
Forrest Boecker, St. Louis, Mo., William B. Ewald, St. Louis, Mo., for appellants.
Don. R. Bennett, Attorney, Criminal Division, Dept, of Justice, Washington, D. C., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., Herbert J. Miller, Jr., Asst. Atty. Gen., and Kenneth C. Shelver, Attorney, Dept, of Justice, Washington, D. C., for appellee.
Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and DAVIES, District Judge.
RONALD N. DAVIES, District Judge.
This action was first instituted in the United States District Court for the Eastern District of Missouri to review administrative action taken by the District Director of Immigration and Naturalization.
The appellants, Dr. Manuel Mendez and Teresa Lastra de Mendez, his wife, are Mexican nationals who, accompanied by a son, were admitted into the United States in 1955 as exchange visitors under the United States Information and Educational Exchange Act of 1948. While residing in Baltimore, Maryland, a second son was born to them, August 31, 1956. In that same year the Information and Educational Exchange Act under which the appellants were admitted was amended to provide:
“No person admitted as an exchange visitor under this section * * * shall be eligible to apply for an immigrant visa * * * or for adjustment of status to that of an alien lawfully admitted for permanent residence, until it is established that such person has resided and been physically present in a cooperating country or countries for an aggregate of at least two years following departure from the United States.”
In 1957 Dr. Mendez applied for an extension of his temporary stay in the United States. By letter dated October 2, 1957, he was informed by the Immigration and Naturalization Service that:
“Present law and regulations provide that any alien who. was admitted to the United States after June 4,1956, as an Exchange Visitor, or otherwise acquired the status of an Exchange Visitor after that date shall not be eligible to apply for and receive an immigration visa, for permanent residence, or a non-immigrant visa as a trainee or to perform temporary services in the United States, or for adjustment of status to that of an alien lawfully admitted for permanent residence, unless the Consular Officer is satisfied that such an alien has resided and been physically present abroad for an agree-gate of at least two years since his departure from the United States, following the termination of his Exchange Visitor’s status, in a country or countries cooperating in the Exchange Visitors Program. This includes any Exchange Visitor who is granted an extension of his temporary stay in the United States after September 21, 1956.”
After acknowledging that he had been informed of the conditions that would attach if he were granted an extension, Dr. Mendez again submitted his application for extension of temporary stay in this country which was granted.
In 1961 the Immigration and Nationality Act of 1952 was amended by adding Sec. 212(e), 8 U.S.C.A. § 1182(e), to provide for a waiver by the Attorney General of the United States of the two year x*esidence abroad requirement upon favorable recommendation of the Secretary of State made pursuant to x'equest of the Commissioner of Immigration and Naturalization after he had determined that departure from the United States would impose exceptional hardship upon the alien’s spouse or child if the spouse or child were a citizen of the United States.
In August of 1962 after the extension of their temporary stay had expired, Dr. Mendez and his wife each applied to the Distx’ict Director of Immigration and Natux'alization for a waiver of the two year foreign residence requix*ement, basing their applications upon the alleged exceptional hardship it would impose upon their United States citizen son if compliance were enforced.
The District Director concluded that the “exceptional hardship” standard had not been met, and he declined to submit a request to the Secx-etary of State for a recommendation to the Attorney Genei’al that the waiver be granted. Upon a subsequent motion to reconsider the applications, the District Director again found that the degree of hardship requix-ed by the statute had not been demonstrated.
Predicating jurisdiction upon the Administrative Procedure Act, 5 U.S.C.A. § 1009, appellants brought this action seeking judicial review of the Distx’ict Director’s refusal to submit the waiver applications to the Secretary of State. It was contended in Count One of the Amended Complaint that the District Director’s ruling was arbitrary and capricious, an abuse of discretion, a usurpation of legislative power and contrary to law. Equitable relief was sought in Count Two by requesting cancellation of. their Exchange Visitor visas, and in effect changing their status to that of “non-quota immigrants” under 8 U.S.C.A. § 1101(a) (27) (C). The District Director’s motion for summary judgment was granted. Mendez v. Major, D.C., 226 F.Supp. 364.
An appeal was then perfected to this Court.
In view of the 1961 amendment to See. 106(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1105a (a), which provides for initial review in the Circuit Courts of Appeals of “all final orders of deportation heretofore or hereafter made against all aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title * * * ”, we must first determine whether the Court below had jurisdiction to review the denial by the District Director of the relief sought under Sec. 212(e). The phrase “final orders of deportation” has recently been construed by the United States Supreme Court in Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281, the Court holding:
“It can hardly be contended that the meaning of the phrase ‘final orders of deportation’ is so clear and unambiguous as to be susceptible of only a narrow interpretation confined solely to determinations of deportability. If anything, the literal language would appear to include a denial of discretionary relief, made during the same proceedings in which deportability is determined, which effectively terminates the proceedings. In arriving at the intended construction of this language, we must therefore inevitably turn to the purpose of Congress in enacting this legislation. The fundamental purpose behind § 106(a) was to abbreviate the process of judicial review of deportation orders in order to frustrate certain practices which had come to the attention of Congress, whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts. •x * -»»
The Fifth Circuit Court of Appeals did not view the decision in Foti as indicating an intention to include within the scope of See. 106(a) all discretionary determinations relating in any way to deportation proceedings and declined initial jurisdiction to review a denial of a petition for a waiver under Sec. 212(e) which was made prior to and separate from any deportation proceedings. Saínala v. Immigration and Naturalization Service, 5 Cir. 1964, 336 F.2d 7.
The appellee neither denied nor explained by answer any of the allegations contained in the Amended Complaint, but instead relied upon the administrative record in support of his motion for summary judgment which the District Court granted. We think that such procedure was entirely proper. Todaro v. Pederson, D.C., 205 F.Supp. 612, aff’d 6 Cir. 1962, 305 F.2d 377, cert. denied, 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124; Kalatjis v. Rosenberg, 9 Cir. 1962, 305 F.2d 249. Cf. Montgomery v. Ffrench, 8 Cir. 1962, 299 F.2d 730.
The contention of appellants that to enforce the two year residence abroad requirement would be in violation of their United States citizen son’s constitutional rights is without substance. There can be no doubt that Congress has the power to determine the conditions under which an alien may enter and remain in the United States, Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317; even though the conditions may impose a certain amount of hardship upon an alien’s wife or children. See Swartz v. Rogers, 1958, 103 U.S.App.D.C. 1, 254 F.2d 338; United States ex rel. Hintopoulos v. Shaughnessy, 2 Cir. 1956, 233 F.2d 705, aff’d 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652; Papageorgiou v. Esperdy, S.D.N.Y.1963, 212 F.Supp. 874.
There is no merit in appellants’ contention that it was improper for the District Director to resort to the legislative history of Sec. 212(e) in construing the phrase “exceptional hardship”. It cannot be said that the phrase is so clear and unambiguous as to be susceptible of only one meaning, and it was, therefore, necessary for the District Director to look to the intent of the Congress in passing the Section to determine the proper standard to apply. Though he did find that there was a degree of personal hardship and inconvenience to appellants’ citizen son, his further determination that it was not the degree of exceptional hardship contemplated by the statute was neither capricious, arbitrary nor an abuse of discretion. Talavera v. Pederson, 6 Cir. 1964, 334 F.2d 52.
The remaining contention of any substance is that the appellants were entitled to equitable relief because when they entei-ed the United States as Exchange Visitors they could have entered as immigrants pursuant to 8 U.S.C.A. § 1101(a) (27) (C), and no one, including the personnel of the United States Consulate who granted their visas, informed them of this right.
Nowhere do we find any requirement that all possibilities under the Nationality and Immigration Act be explained to an alien who desires to enter the United States, Diminich v. Esperdy, 2 Cir. 1961, 299 F.2d 244, and as was said in Kalatjis v. Rosenberg, 305 F.2d 249, “ * * the government made no misleading statement to appellant[s], nor had it taken any misleading position on which appellant[s] could or did rely to his [their] detriment.” The appellants here were fully informed of the consequences if an application for an extension of stay were granted and, this being so, they are not entitled to the equitable relief which they seek.
The judgment of the District Court is
Affirmed.
. 62 Stat 6 (1948).
. 62 Stat. 6 (1948), amended 66 Stat. 276 (1952).
. 70 Stat 241 (1956).
. 75 Stat. 527-535 (1961).
. 22 C.F.R., Sec. 63.6 (j) (which sets forth procedure).
. But see Talavera v. Pederson, 6 Cir. 1964, 334 F.2d 52; Skiftos v. Immigration and Naturalization Service, 7 Cir. 1964, 332 F.2d 203; Giova v. Rosenberg, 9 Cir. 1962, 308 F.2d 347, Rev’d. 85 S.Ct. 156 (1964). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). | This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? | [
"not ascertained",
"poor + wards of state",
"presumed poor",
"presumed wealthy",
"clear indication of wealth in opinion",
"other - above poverty line but not clearly wealthy"
] | [
5
] | songer_appel2_7_5 |
MILLS ALLOYS, Inc., et al. v. STOODY CO.
No. 8313.
Circuit Court of Appeals, Ninth Circuit.
Jan. 24, 1938.
John Flam and Phillip Grey Smith, both of Los Angeles, Cal., for appellants.
Fred H. Miller and Charles C. Montgomery, both of Los Angeles, Cal., for appellee.
Before WILBUR, MATHEWS, and HANEY, Circuit Judges.
WILBUR, Circuit Judge.
This is a patent infringement suit brought by the owner of letters patent 1,-803,875 to enjoin the use of the process therein described for surfacing the face of an oil well drill. The matter was referred to a special master over the objections of the appellants. The master found the patent claims involved to be valid and infringed. Exceptions were taken to the master’s report, and overruled. The master’s findings were sustained and adopted by the court, and an interlocutory injunction granted and an accounting ordered. From this interlocutory decree this appeal is taken.
The appellants attack the findings of validity and of infringement by appropriate assignments o-f error. The scope and character of the review of the findings of the special master is defined by the new Equity Rule 61%, 28 U.S.C.A. following section 723, promulgated May 31, 1932, before the master’s report herein. The finding of fact and law are to be treated as presumptively correct, but subject to review by the trial court and by this court on appeal. Wilson-Western Sporting Goods Co. v. Barnhart, 9 Cir., 81 F.2d 108; Anraku v. General Electric Co., 9 Cir., 80 F.2d 958; Stewart-Warner Corp. v. Jiffy Lubricator Co., 8 Cir., 81 F.2d 786; Reinharts, Inc., v. Caterpillar Tractor Co., 9 Cir., 85 F.2d 628; Antonsen v. Hedrick, 9 Cir., 89 F.2d 149.
We proceed to a consideration of the findings and interlocutory decree. The first question to be considered is that of res judicata.
The patentee procured this process patent May 5, 1931, and upon an application pending at the patent office at the same time secured a product patent for a welding rod by letters patent No. 1,757,601.
The latter patent (No. 1,757,601) was before this court in Stoody Co. v. Mills Alloys, Inc., 9 Cir., 67 F.2d 807. We there held that its claims were void for lack of invention. The patent covered a welding rod which was to be used for the surfacing of a drill in accordance with the teaching of the patent, and, therefore, covered the use of the welding rod for the purpose for which it was designed. This use, as disclosed by the patent, was to deposit and fasten the hard particles inclosed therein upon the face of the drill by melting the tube upon the face of the drill to which it adhered with the inclosed particles by reason of the welding of the molten metal of the tube to the heated surface of the drill. In describing the invention in the welding rod patent it is shown that the purpose of the invention was to furnish a tube .filled with particles of hard material, preferably tungsten carbide, to be melted upon the' face of the drill by the use of an acetylene' torch. We there approved the finding of the master that a tube designed for such purpose did not constitute invention in view of the state of the prior art. The master’s finding on that subject, which we quoted in part in our former opinion (page 815) is set out in the margin.
The same master, in considering the patent for the process of applying the welding rod and its contents to the surface of the drill, sustained the patent and upon that finding the court enjoined the defendants from manufacturing or selling the welding tube covered by the void patent (No. 1,757,601) because it was held that the manufacture and sale of the welding rod was a contributory infringement of the process covered by patent No. 1,803,875. It also enjoined the sale of a welding rod in which the tungsten carbide particles had been embedded in the metal of the rod instead of being inclosed loosely in a welding tube. The appeal is from this decree. If this decree is affirmed by us and if, also, we adhere to our former opinion as to the invalidity of the product patent, it would follow that the product (the welding rod) patent which we held invalid would be made effective through the process patent.
The appellants rely strongly upon the doctrine of res judicata to support the conclusiveness of the facts found in the former case to establish the invalidity of the patent in suit.
One of the issues in the former case was the factual one of invention. It was there held that no invention was involved in producing a welding rod to be used according to the teaching of the patent. The court declined to enjoin the manufacture, sale, or use of the welding rod described in the patent. The finding that there was no invention in the welding rod not only implied a finding that there was no invention in the only use for which the rod was designed, but also there were express findings that the method of applying face hardening material such as tungsten carbide to a well drill by inclosing or incorporating them in a welding tube or rod and melting the rod on the face to be hardened was not new and did not call for the exercise of inventive genius. The question as to whether the proposed use of the welding rod was new or old was inherent in the question of invention in the welding rod itself. The proposed use of the welding rod could not be ignored in litigation over the question of whether or not the inventive faculty was exercised in its manufacture. It is true that the two patents are different and that the invalidity of one would not necessarily invalidate the other, but where the litigation in each case turns upon the question of the novelty of the manner of use, the adjudication of invalidity of the process (or manner of use) patent follows as an inevitable conclusion from the finding of lack of novelty in the product patent. As to general principle, see Freeman on Judgments, 5t.h Ed., vol. 2, p. 1469, § 695 et seq. This conclusion, we think accords with the view expressed by the Second Circuit Court of Appeals in Vapor Car Heating Co. v. Gold Car Heating & Lighting Co., 7 F.2d 284, 287. The master should have held the claims of the process patent here involved invalid for lack of invention because that lack was conclusively established by the prior finding and decree.
Furthermore, if we now adhere to the views expressed in the previous opinion, the same result follows because the evidence upon which that finding is based in the former case has been introduced in the main case, hence, it would follow that whether we rely upon the evidence herein of the prior art, or upon the doctrine of res judicata, our holding would he the saihe; namely, that the state of the prior art embraced the application on face hardening material to the surface of a well drill by incorporating or inclosing the hard material in a welding tube to be melted on the face of the drill by the use of an acetylene torch, or otherwise.
There is one notable exception between the prior art shown in this case and that shown in the former case. In the prior case the master concluded that the “hot rod method” of applying the tungsten carbide anticipated the product patent. In the present litigation he finds that the “hot rod method” was used a year later than he held in the former case, and that its use was by the patentee only, and shortly before, or immediately after, the present invention. Thus, in considering the evidence of the prior art, we must either ignore this particular alleged prior use or reverse the decision of the master on that subject reached by him after hearing the conflicting testimony of the witnesses who appeared before him, as to a date, where documentary evidence pointed toward the conclusion reached by the master. We should not do this except upon the principle of res judicata. Consequently, we will in our present inquiry ignore the hot rod method and consider the other prior art only. We will now consider that evidence.
In arriving at the conclusion that the process patent was valid, the master was strongly impressed by the fact that tungsten carbide was a recent metallurgical product whose reactions to the application of the intense heat were not entirely understood and that the patentees having discovered that the carbide particles could be applied to the face of the tools by the. welding process retaining their hardness without impairment were entitled to the award of the patent for their inventive genius. Evidence was offered to show the various experiments conducted by the patentees with a view of determining the best method of applying this newly produced product to the face of the drilling tool. It appears that other methods were tried, including grinding the tungsten carbide to uniform sizes and shapes and embedding them in holes countersunk in the face of the drill by soldering with molten brass or other soft material. It .was known while these experiments were being conducted that tungsten carbide is almost as hard as diamond (98 per cent, to 99 per cent., or, 9.8 to 9.9). It was also known that tungsten carbide has an extremely high melting point as compared to iron, or mild steel. The relative melting point of mild steel and tungsten carbide is as 2,600° F. is to 5,400° F. It was known that it did not soften or fuse at any lower temperature, and that it had the tenacity or strength of high speed steel. It was also known from German patent No. 427,074 issued to Siemens and Halslce March 22, 1926, that tungsten carbide in the form of grains could be mixed with molten metal and become imbedded therein without forming an alloy. From these known characteristics of tungsten carbide it was evident that the iron of a welding rod or tube could be melted without melting the tungsten carbide inclosed in the tube. However, the acetylene torch has a very high temperature at the apex of the cone of the flame. This temperature is about 6,000° F. It is thus apparent that if the hottest part of the acetylene flame is played upon the tungsten carbide for too long a time it might cause melting. It was feared also that the flame might crack the tungsten carbide particles. It is only necessary, however, to make the obvious experiment to determine the fact that the tungsten carbide particles were not melted and were not cracked and were secured to the face of the tool by the steel as it cooled. Here it should be stated that the process patent under consideration discloses none of the difficulties apprehended in the use of carbon tungsten and taught no method of avoiding these difficulties. Moreover, the patent process did not relate to the application of tungsten carbide alone, but expressly included all other hardening alloys or metals whose melting point was higher than that of mild steel. All were to be applied in the same way. Some of these materials would no doubt form an alloy with the molten mild steel of the tube and with the visced face of the drill, others, like tungsten carbide, would remain embedded in the metal in hard particles.
In considering the claims of the pat-, entees the master was evidently impressed by the contention which he had not fully considered in the other case that in the former . art the hard material which had been applied to the face of the drill by the use of a welding tube or rod, was incorporated therein as an homogeneous alloy so that the hardness of the face of the drill after the operation resulted from the incorporation into the steel face of the drill as an alloy of steel of the metal or alloy which had been contained in the tube or welding rod, whereas, in the case of tungsten carbide, the material deposited did not enter into combination with the metal of the drill or the molten metal from the tube to form an alloy, but remained deposited upon the surface- of the tool although embedded in the steel as an independent hard heterogeneous mass inclosed in a matrix of mild steel so that as the mild steel was worn away by the operation of the drill the tungsten carbide became exposed to form the cutting surface of the drill. (See note 3)
The question is whether or not the application of a process old in the art to the new product constitutes invention. It is clear that the most that can be said of the efforts of the patentees to successfully apply the newly produced hard alloy (tungsten and carbon) to the face of the tool was that they discovered that it could be applied in the usual manner; that is to say, they discovered that the characteristics of the tungsten carbide supplied to them by the manufacturers, or .produced by them, were such that by the use of an old process it could be applied to the surface of the drilling tool. The bare bones of the process of the patent consist in the application to the surface of the drill of face hardening material by inclosing the hardening material in molten steel which adheres to the face of the drill by welding action.
While it is true, as the master held, that this face hardened drill constituted a different result from that produced by the process of applying a substance which would form an alloy with the face of the tool, no invention was involved over the prior art because the process of application was exactly the same as disclosed by the prior art for applying face hardening materials. The beneficial result was brought about by using a new product and not by the use of a new process. This does not ordinarily constitute invention. David E. Kennedy, Inc., v. Beaver Tile & Specialty Co., D.C., 232 F. 477; see, also, Paramount Hosiery, etc., Co. v. Moorhead Knitting Co., D.C., 251 F. 897; Id., 3 Cir., 260 F. 841. We have so far assumed that the method of applying face hardening material to the surface of a drill by incorporating or inclosing it in a mild steel welding rod, the material to be added by melting the rod against the face of the drill to be hardened, was old, as we held in the former case. Stoody Co. v. Mills Alloys, Inc., 9 Cir., 67 F.2d 807. However, as we are now dealing with the facts upon the assumption that the prior decision was not conclusive on that subject, we now point out some of the facts of prior use in proof herein which would cause us to adhere to our former ruling even if we were not bound to do so by the principle of res judicata. The Mills patent, No. 1,650,905 applied for December 21, 1925, issued November 29, 1927, taught the use of a welding rod to apply materials inclosed therein, referred to as a composition. The patent states: “The composition can be such as to provide a wearing layer of high grade alloy steel when welded on worn cutting tools, such as on well drill bits. * * * Of course my invention is not limited to the precise form of container for the composition; in fact, in some instances the container itself enters materially into the ultimate composition of the matter welded. * * * The composition can be such as to alloy with the bar 13 when welded to form a high grade steel alloy, such as tungsten steel, nickel chromium steel, or vanadium steel.”
The patent to Jones, No. 1,387,157, applied for September 18, 1918, issued August 9, 1921, taught the method of applying metal alloys for hardening tools by inclosing the alloy in a welding rod and melting it upon the surface of the metal to be treated, by the use of an oxyacetylene or other blow • pipe. The patent states: “Again; all the materials necessary for the depositing of what is known as ‘high speed steel’ may be combined in a welding - rod; for example, a channel section mild steel welding rod with a carbon of cast iron content, and .a suitable proportion of vanadium, -cobalt, tungsten, molybdenum, chromium, aluminum, or the like may be' employed for depositing metal on the cutting parts of tools, dies and the like.”
The German patent, No. 427,074, issued to Siemens & Halske, describes the method of producing objects of great hardness from tungsten carbide by placing fine particles or grains thereof in a molten metal or alloy or soft metal or alloys, like iron, nickel, cobalt. The patent discloses that with a. cobalt chomium alloy the tungsten carbide completely dissolves forming a completely homogeneous mass, “while with some other metals we find merely an imbedding.”
In an article published in a German publication, Gluckauf, the use of tungsten carbide (“Thoran”) to the surfacing of drilling tools is extensively discussed and the properties of the new alloy (tungsten carbide) ,are particularly described, and its use indicated for the cutting surface of rock drills, the method of its application to such surfaces is by setting and soldering 'into the surface “with brass or.hard solder.”
Patent No. 1,698,936, applied for in 1924 and issued June 15, 1929, teaches the embedding of hard crystals of tungsten carbide, and other hard carbides, in a metal .(such as iron) matrix. The patent states: “In addition to Heat resistance, the alloy must also possess abrasive hardness and for this purpose should contain embedded in the metallic matrix hard crystals, usually metallic carbides.” In view of the foregoing there was no invention in the patent method, and the finding of invention cannot be sustained.
In view of our conclusion it is unnecessary to discuss other points covered by the briefs.
We conclude, first, that the question of invention is not open because the decree in the former case determines that there was no invention; second, that the prior art shown in evidence in this case, even without the aid of the former decree, requires a finding by us of lack of invention, and we do so find; third, that the claims of the patent in suit (Nos. 5, 6, 7, 10, 11, 12, 13, 14, 15, and 17) are invalid.
The interlocutory decree is reversed.
“ * * * The tube 1 is filled with broken pieces or particles 2 of an alloy, carbide or element such as black diamonds of great hardness and toughness; but we prefer to use an alloy set forth in our eopending application for an alloy, containing tungsten and carbon, serial No. 250,699, filed January 30, 1928. The ends of the tube 1 are preferably pinched together as at 3 so as to confine the particles within the tube.
“In the use of the welding rod the tools are faced with a layer or skin of mild steel or metal of which the tube 1 is composed, in which layer the particles or pieces 2 are embedded. We prefer to use an acetylene torch in melting the welding rod. The particles 2 of the alloy or element having a considerable higher melting point than the mild steel of which tube 1 is composed, will not be affected by the acetylene torch. The metal of the tube 1 serves as a binder holding the particles 2 to the face of the tool. The skin or layer of metal in which the particles 2 are embedded is then provided with a surface layer of a hard tool steel, though the second layer of metal may be omitted. The method and resulting product of such facing of tools is described and claimed in our copending application, filed January 30, 1928, serial No. 250,698. The second layer of hard tool steel may be omitted, and the particles 2 embedded in the metal of the welding rod deposited on the face of the tool, may be Used without the second layer of metal, and will produce good results.”
“Summing up the prior art it is found that at the time of the appearance of the welding rod of the patent * * *
“(1) It was common practice to combine in rod form various steel substances intended for deposit in a weld and to use a steel tube filled with alloying substances for the purpose.
“(2) It was known that tungsten carbide could be used advantageously in hard surfacing cutting tools.
“(3) It was known that tungsten carbide was not materially affected by a temperature of the degree of the acetylene torch and that it formed a bond with mild steel or other matrix metals. * * *
“It is true that the use of the tube of the patent results in a more facile and economical application of the material in a weld. However, in view of the state of the art the step taken did not involve the necessary element of inventive thought, but was an improvement logically coming from workers in the art, who applied their skill and knowledge to a given problem. * * *
“The device of the patent is simple, consisting of a tube of mild steel, or other substance having a comparatively low melting point, filled with small particles of tungsten carbide or other substance of a high melting point. It is intended for use in applying a hard facing to cutting tools. In the preferred method of use, the flame of an acetylene torch is applied to bring the surface of the tool to be faced to a welding temperature. After this is done the rod is heated until a portion of the tube is fused and falls down on the prepared surface, carrying with it the particles from the interior. These particles are not materially affected by the heat of the torch. They become embedded in the layer of steel from the tube that is formed on the surface of the tool. In use the hard particles embedded in a matrix of steel form abrasive cutting surfaces which resist wear in the manner of black diamonds. * * * “The prior art * * *
“After it was discovered that tungsten carbide was not affected to any appreciable extent by the heat of the acetylene torch, it became customary to secure it in place by flowing mild steel or a hard surfacing alloy around it. A satisfactory bond resulted. * * *
“The hot rod method first came in use in 1926. It was. useful in applying small particles of tungsten carbide to tools. The operator would heat a rod of steel to a welding temperature and then touch the hot end of the rod to the small particles of tungsten carbide. The particles would adhere to the rod. The operator would then melt off the end of the rod causing the steel and the tungsten carbide particles to fall on the part to be surfaced. The particles of tungsten carbide were not materially affected by the heat of the torch. * * *
“Validity * * *
“Hard materials of high melting point, such as tungsten carbide had been previously used for hard surfacing. Hard surfacing materials had been extensively applied by a welding process. Mills, Jones and others had previously used or described tubes filled with materials to be deposited by welding. Tungsten carbide was a comparatively new hard surfacing material, and as soon as it was commercially available in small particles it was an obvious step to place it in a tube of mild steel for convenient use. The character of the weld produced was not new. The previous use of tungsten carbide by imbedding it in steel or by the hot rod had produced the same type of weld, i. e., tungsten carbide embedded in steel.
“This result is due to an inherent characteristic of tungsten carbide in that it is not materially affected by ordinary welding temperatures. This incident of the use of tungsten carbide cannot be relied upon to give validity to broad structural claims of the character here in issue * * * The plaintiff’s theory of invention is based upon the differences in melting point as effecting the type of weld produced. * * * ”
“Other rods of composite materials were designed for the same use with the exception that the materials formed an alloy when fused during deposition. The Mills Oxite rod is an example. * * *
“It was intended that the rod be used with an acetylene torch to produce a homogeneous alloy in the resulting weld. At times the weld produced was rough in appearance due to the failure of all the material to fuse under the heat of the torch. The materials forming the unfused portions of the weld have not been identified. No embedding of hard particles was either intended or appreciably accomplished. The use of the Oxite rod did not anticipate the method of the patent. * * *
“In view of the state of the art at the time of the disclosure of the method of the patent it was not known that tungsten carbide and mild steel could be combined together and simultaneously deposited in a weld by the heat of an acetylene torch to produce a weld in which the tungsten carbide particles would be held embedded in a matrix formed by the steel.”
“Iron Age,” issue July 16, 1925, article entitled “German Alloy of Diamond Hardness.”
See last paragraph note 3. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. | This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? | [
"auto",
"chemical",
"drug",
"food processing",
"oil refining",
"textile",
"electronic",
"alcohol or tobacco",
"other",
"unclear"
] | [
8
] | songer_appel1_1_4 |
AMAREX, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION (Successor to the Federal Power Commission), Respondent, Arkansas Louisiana Gas Company, Intervenor.
No. 77-1503.
United States Court of Appeals, Tenth Circuit.
Argued Nov. 16, 1978.
Decided July 17, 1979.
Rehearing Denied Aug. 27, 1979.
Stanley L. Cunningham, Oklahoma City, Okl. (Philip D. Hart, Terry R. Barrett, and McAfee, Taft, Mark, Bond, Rucks & Wood-ruff, a Professional Corporation, Oklahoma City, Okl., on brief), for petitioner.
McNeill Watkins, II, Washington, D.C. (Robert R. Nordhaus, Gen. Counsel, and Philip R. Telleen, Washington, D.C., on brief), for respondent.
Glenn W. Letham, Washington, D.C. (Gilbert L. Hetherwick, Robert Roberts, Jr., Blanchard, Walker, O’Quin & Roberts, Shreveport, La., and Reuben Goldberg, Goldberg, Fieldman & Hjelmfelt, P.C., Washington, D.C., on brief), for intervenor.
James R. Patton, Jr. and David B. Robinson of Patton, Boggs & Blow, and Harry E. Barsh, Jr. of Camp, Carmouch, Palmer, Carwile & Barsh, Washington, D.C., filed briefs, for the State of Louisiana, amicus curiae.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
McWILLIAMS, Circuit Judge.
This case is a review of Opinion No. 798, as modified by Opinion No. 798-A, in which the Federal Power Commission, now the Federal Energy Regulatory Commission, directed Amarex, Inc., to deliver to Arkansas Louisiana Gas Company (Arkla) in interstate commerce natural gas attributable to Amarex’s interest in a certain oil and gas lease relating to land situated in Beckham County, Oklahoma. The background facts are not in dispute, and will be fully set out below, as such are deemed to be quite significant.
On May 4, 1967, the First State Bank of Pittsburg (Kansas), as lessor, and Sinclair Oil & Gas Company, as lessee, entered into an oil and gas lease covering the SE Vi of Section 22, Township 10 North, Range 26 West, Beckham County, Oklahoma. The lease was to remain in force for a primary term ending September 26, 1972. On January 15, 1970, Amarex acquired by assignment Sinclair’s interest in the 1967 lease. On June 6, 1970, Amarex and Arkla entered into a gas purchase contract providing for the sale to Arkla for a primary period of twenty years of natural gas produced under the terms of certain “contract leases” described in Exhibit A attached to the 1970 contract. The 1967 lease was one of the “Contract Leases” described in Exhibit A to the 1970 contract.
More specifically, the 1970 gas purchase contract between Amarex and Arkla provided as follows:
Section 2. Commitment
(A) Subject to the further provisions hereof, [Amarex] hereby agrees to sell and deliver to [Arkla], and [Arkla] agrees to purchase and receive from [Amarex], the natural gas production attributable to [Amarex’s] interest in all Contract Wells, and to that end [Amarex] hereby subjects and commits hereto the Contract Leases.
The 1970 contract defined “Contract Leases” and “Contract Wells” as follows:
(F) “Contract Leases” refers to the oil and gas leases and other mineral interests described in the schedule attached hereto and made part hereof as Exhibit A.
(G) “Contract Wells” refers to all wells now or hereafter completed as commercially productive of natural gas on lands covered by the Contract Leases or on a production unit which includes any part of said lands.
The 1970 contract further provided as follows:
This contract shall be subject to all relevant present and future local, state and federal laws, and all rules, regulations, and orders of any regulatory authority having jurisdiction.
In November, 1970, Amarex filed with the Commission an application for a small producer certificate of public convenience and necessity. By virtue of a Commission order regarding small producers, Amarex was granted on August 12, 1971, a blanket certificate of “unlimited duration” covering all of Amarex’s sales and service in interstate commerce. The order granting the certificate provided, among other things, as follows:
The grant of the certificates aforesaid for service to the particular customers involved shall not imply approval of all of the terms of the contracts, particularly as to the cessation of service upon the termination of said contracts as provided by Section 7(b) of the Natural Gas Act.
Amarex’s service under the 1970 gas purchase contract commenced with initial deliveries to Arkla in November 1971 of gas from acreage described in the 1970 gas purchase contract, though not from the southeast quarter section covered by the 1967 lease. Amarex’s lease interest in that quarter section expired by its own terms in September, 1972. Five months earlier, however, the lessors executed a new lease with Amarex covering the same quarter section for a period beginning on the expiration date of the 1967 lease and continuing for a primary term of five years. Prior to executing the 1972 lease, Amarex requested a title opinion, which read, in relevant part, as follows:
By instrument dated June 6, 1970, Amarex, Inc. and Arkansas Louisiana Gas Company entered into a gas purchase contract covering the lease under consideration. The terms and conditions of the contract are not set forth in the instrument of record, but you are advised that any gas produced from the premises is subject to said contract.
Sometime prior to 1975, the aforesaid Section 22 was declared a drilling and spacing unit by the Oklahoma State Corporation Commission. In August, 1975, a commercially productive gas well was completed in the drilling unit which included the Southeast Quarter of Section 22.
When Amarex refused to comply with Arkla’s request that gas attributable to Amarex’s interest in the Southeast Quarter be delivered to Arkla, both parties commenced proceedings before the Commission. Arkla first filed a complaint asking the Commission to direct Amarex to deliver to Arkla the natural gas attributable to Amarex’s oil and gas leasehold in the aforesaid Southeast Quarter. Amarex, in turn, filed with the Commission a petition for a declaratory order seeking a determination that Arkla was not entitled to the gas attributable to Amarex’s leasehold.
The Commission found that no significant questions of fact were presented by either Amarex’s petition or Arkla’s complaint and directed the parties to file briefs addressing the legal issues involved. Because the petition and the complaint concerned the same factual situation, the two were consolidated.
By Opinion No. 798 the Commission found that the public service obligation, imposed by Amarex’s small producer certificate of public convenience and necessity and the terms of the 1970 gas purchase contract between Amarex and Arkla, applied to Amarex’s leasehold interest in the Southeast Quarter and directed Amarex to deliver to Arkla any gas produced from or attributable to Amarex’s interest in the Southeast Quarter for interstate transportation and sale.
By opinion No. 798-A the Commission denied Amarex’s application for rehearing, but permitted Amarex to deliver gas to Arkla under a protective order, pending the outcome of judicial review of the Commission’s order.
In our view California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) has great bearing on the present controversy. In Southland, the owners of certain acreage in Texas executed in 1925, an oil and gas lease which granted the lessee, Gulf Oil Corp., the exclusive right to produce and market oil and gas from the land for the next 50 years. The owners thereafter sold their remainder interest to Southland Royalty Co., and others. In 1951 the lessee contracted to sell casinghead gas from the leased property to El Paso Natural Gas Co., an interstate pipeline. Following the decision in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954), the lessee applied for a certificate of public convenience and necessity from the Federal Power Commission authorizing its sale of gas to El Paso. The Commission granted the lessee a certificate of unlimited duration. The lessee in 1972 executed a second contract to. sell El Paso Natural Gas Co. additional volumes of gas from the leased premises, and obtained from the Commission in 1973 a certificate of unlimited duration for those volumes.
The original 50 year lease involved in Southland expired in 1975 and under local Texas law the lessee’s interest in the remaining oil and gas reserves terminated and reverted to Southland Royalty Company and the other reversioners. Shortly pri- or to the expiration of the lease Southland agreed to sell the remaining casinghead gas to an intrastate purchaser at a higher price than El Paso Natural Gas had been paying the lessee. It was in this setting that El Paso Natural Gas Co. filed a petition with the Commission seeking a determination that the remaining gas reserves in the leased property could not be diverted from it and into the intrastate market without abandonment authorization obtained pursuant to the provisions of the Natural Gas Act of 1938. 15 U.S.C. § 717f(b). The Commission agreed with El Paso’s contention on the ground that under the Natural Gas Act “service”, once instituted, could not be abandoned without Commission permission and approval. On petition for review, the Court of Appeals for the Fifth Circuit reversed the Commission. Southland Royalty Co. v. F.P.C., 543 F.2d 1134 (5th Cir. 1976). In essence, the Court of Appeals held that the lessee for a term of years could not legally dedicate to interstate commerce the gas reserves remaining at the expiration of the lease period, since a lessee cannot “encumber that which it does not own.”
The Supreme Court in Southland reversed the Court of Appeals and, in effect, upheld the Commission’s decision. In so holding the Supreme Court described the Commission’s position as follows:
“In this litigation the Commission held that once gas began to flow in interstate commerce from a field subject to a certificate of unlimited duration, that flow could not be terminated unless the Commission authorized an abandonment of service. The initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate. The expiration of a lease on the field of gas did not affect the obligation to continue the flow of gas, a service obligation imposed by the Act.” (Emphasis added.) 436 U.S. at 525, 98 S.Ct. at 1959.
In connection with the foregoing the Supreme Court held that the Commission’s interpretation of the abandonment provision of the Natural Gas Act was a “permissible interpretation.”
We recognize that Southland does not involve the precise question here presented. However, the Supreme Court’s approval of the Commission’s position in Southland that the service obligation attaches to “all fields subject to the certificate” certainly suggests that the Commission’s position in the present case should be upheld. The underlying principles in Southland control the present controversy and in our view dictate affirmance of the Commission’s order.
Southland, inter alia, stands for the following: (1) the initiation of interstate service pursuant to a certificate of public convenience and necessity dedicates all fields subject to that certificate; (2) once gas begins to flow in interstate commerce from a field subject to a certificate of unlimited duration, that flow cannot be terminated unless the Commission authorizes an abandonment of such service; and (3) the expiration of a lease on a field of gas does not affect the obligation to continue the flow of gas, a service obligation imposed by the Natural Gas Act.
Applying these principles to the facts of the instant case, we find: (1) when Amarex instituted delivery of gas to Arkla in November, 1971, pursuant to its gas purchase contract with Arkla and under the authority of its certificate of public convenience and necessity, such constituted a dedication of all fields subject to the contract and authorized by the certificate, which would include the gas reserves in the Southeast Quarter with which we are here concerned; (2) gas having begun to flow in November, 1971, from a field subject to a certificate of unlimited duration, such flow could not thereafter be terminated unless the Commission authorized such; and (3) the expiration in September, 1972, of the 1967 oil and gas lease between Amarex and the First State Bank of Pittsburg did not affect the obligation to continue the flow of gas from the field subject to the gas purchase contract, since the service obligation is imposed by the Natural Gas Act independently of property law.
In our view Amarex is in a less favorable position than was Southland Royalty Company. Southland Royalty Company was not a party to the gas purchase contract sought to be enforced in Southland, nor had it been selling in interstate commerce pursuant to a certificate of public convenience and necessity. Such is not the present case. Amarex is a party to the gas purchase contract sought to be enforced by Arkla, and Amarex had been making interstate deliveries to Arkla pursuant to a certificate of public convenience and necessity. Southland Royalty Company was a stranger to the gas purchase contract and the certificate involved in Southland. Amarex is not a stranger to the gas purchase contract and certificate here involved. Rather, it is a party thereto.
In sum, the fact that Amarex’s 1967 lease with the First State Bank of Pittsburg expired in 1972 does not affect the service obligation theretofore imposed on the gas reserves in that quarter section by the prior commencement of delivery under a gas purchase contract covering numerous leasehold interests, including that in the Southeast Quarter, which delivery was authorized by a certificate of unlimited duration granted Amarex by the Commission. Such follows from the teaching of Southland. Southland is but a logical extension of Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960) and Sun Oil Co. v. Federal Power Commission, 364 U.S. 170, 80 S.Ct. 1368, A L.Ed.2d 1639 (1960), and we believe our disposition of the present ease is in line with the rationale of Southland and those prior cases.
The foregoing opinion was written prior to the recent opinion of the United States Supreme Court in United Gas Pipe Line Co. v. McCombs, -U.S.-, 99 S.Ct. 2461, 61 L.Ed.2d 54 (1978). We believe that McCombs fully supports the result reached in the present case.
The Opinion and Order of the Commission is affirmed.
. The Commission in its opinion No. 798, concluded that the certificate was not limited in duration. See Sun Oil Co. v. F. P. C., 364 U.S. 170, 175, 80 S.Ct. 1388, 4 L.Ed.2d 1639 (1960). Amarex does not dispute this conclusion. Rather, it argues that the 1972 lease was not within the scope of the dedication.
. At oral argument it was agreed by all parties that the Natural Gas Policy Act of 1978, Pub.L. 95-621, 92 Stat. 3350 (1978), does not affect this review. | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". | From which district in the state was this case appealed? | [
"Not applicable",
"Eastern",
"Western",
"Central",
"Middle",
"Southern",
"Northern",
"Whole state is one judicial district",
"Not ascertained"
] | [
0
] | songer_district |
AH PAH REDWOOD COMPANY, a corporation, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15434.
United States Court of Appeals Ninth Circuit.
Dec. 13, 1957.
James C. Dezendorf, Koerner, Young, McColloch & Dezendorf, Marshall C. Cheney, Jr., Portland, Or., for petitioner.
Charles K. Rice, Asst. Atty. Gen., Helen A. Buckley, Robert N. Anderson, Walter R. Gelles, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before BONE and HAMLEY, Circuit Judges, and GOODMAN, District Judge.
HAMLEY, Circuit Judge.
This matter is before us on a taxpayer’s petition to review a decision of the Tax Court of the United States. In that decision, reported at 26 T.C. 1197, the tax court upheld a $38,304.21 income tax deficiency determination by the Commissioner of Internal Revenue, covering the calendar years 1948 and 1949.
In reaching this decision, the tax court held that the petitioner, Ah Pah Redwood Company, was not entitled to treat as long-term capital gains the receipts from the sale of timber cut and removed from its property by Coast Redwood Company between April 1948 and the end of 1949. The correctness of this ruling presents one of the two questions submitted for our consideration.
The facts to be considered in determining this question are undisputed. On December 13, 1946, Sage Land & Lumber Company, Inc., (seller) and Union Bond & Trust Company (buyer) entered into a contract for the sale and purchase of certain timberland situated in Humboldt county, California. In October, 1947, immediately after its organization as a corporation, petitioner purchased all of the right, title, and interest of Union Bond & Trust Company in this contract. Petitioner, according to the stipulated facts, then
“* * * allowed Coast Redwood Co. (an affiliate) to start cutting timber on this tract shortly after purchase and pay $5.00 per thousand feet as removed. This was an oral or implied contract.”
Pursuant to this arrangement, Coast began cutting timber on this tract, and, as it did so, paid the stipulated price. This activity continued through the balance of 1947, and throughout 1948 and 1949. On January 9, 1950, petitioner entered into a formal written agreement with Coast, under which the latter company purchased the land and all of the remaining timber covered by the contract of December 13, 1946.
Petitioner considered that its receipts from the sale of timber cut by Coast from April, 1948 (six months after petitioner acquired its interest in the tract and timber) to the end of 1949, were reportable as long-term capital gains. The company so reported these receipts in its income tax reports for 1948 and 1949, and claimed the preferential tax treatment accorded such gains, as prescribed by 26 U.S.C.A. (I.R.C.1939) § 117. All statutory references in this opinion are to the Internal Revenue Code of 1939.
The commissioner held, in his deficiency determination, that these receipts were taxable as ordinary income, instead of capital gains. As before indicated, the tax court concurred in this view.
It seems to have been the position of both parties in the tax court, and initially in this court, that, if petitioner was entitled to capital-gains treatment on these receipts, it must be by reason of that part of § 117(j) which gives application to transactions of the kind described in subsection (k) (2) of the same section. Both respondent and petitioner, therefore, originally turned their attention primarily to subsection (k) (2), the pertinent part of which reads as follows:
“(2) In the case of the disposal of timber or coal (including lignite), held for more than 6 months prior to such disposal, by the owner thereof under any form or type of contract by virtue of which the owner retains an economic interest in such timber or coal, the difference between the amount received for such timber or coal and the adjusted depletion basis thereof shall be considered as though it were a gain or loss, as the case may be, upon the sale of such timber or coal. * * * ”
Petitioner contended that contracts of “disposal,” within the meaning of subsection (k) (2), were entered into as and when the timber was cut and paid for. All receipts from timber cut and paid for more than six months after petitioner obtained its interest in the tract could therefore, according to petitioner, be treated as capital gains. Respondent, on the other hand, argued that the cutting and payment transactions could not be regarded as contracts of “disposal,” within the meaning of subsection (k) (2), because all such timber had already been disposed of by the act of the parties in entering into the October 1947 arrangement described in the above-quoted stipulation.
Both parties recognized that the October 1947 arrangement could not itself qualify as a transaction of the kind described in subsection (k) (2), since it was entered into within six months of the time petitioner acquired its interest in the timber.
The tax court, apparently accepting the issues as tendered by the parties, adopted respondent’s view that the October 1947 arrangement between petitioner and Coast represented a “disposal” of the timber thereafter cut, so that the later acts of cutting and paying for such timber could not be considered transactions of the kind described in subsection (k) (2). But the tax court, still directing attention to subsection (k) (2), also advanced another reason for holding against petitioner — a reason which was not urged upon it by respondent. This was that subsection (k) (2) is not applicable in the case of property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, citing § 117(j) (1).
On appeal, respondent completely disavowed this second reason advanced by the tax court, and pointed to an official ruling to the effect that the tax court decision, in this respect, does not represent the position of the Internal Revenue Service. The result was that, in their initial arguments in this court, both respondent and petitioner took the position, as they had in the tax court, that the controlling issue was whether the “disposal” of timber took place as and when the timber was cut and paid for, in which event subsection (k) (2) would apply, or at the time of the October 1947 arrangement, in which case subsection (k) (2) would not apply, and petitioner would not be entitled to capital-gains treatment.
Petitioner argued that the October 1947 arrangement, being only a license to cut, coupled with an offer to sell cut timber, and unsupported by consideration, is noncontractual, and therefore not a disposal “under any form or type of contract,” which is a requirement of subsection (k) (2). It also contended that, even if it be assumed that the October 1947 arrangement is contractual, since it is not in writing it is not binding upon petitioner but is revocable at any time. This being the case, petitioner urged, the arrangement under discussion cannot be considered a “disposal” of timber, within the meaning of subsection (k) (2). Hence, petitioner reasoned, since the October 1947 arrangement was not a “disposal” under subsection (k) (2), the later cutting and payment transactions stand undefeated as subsection (k) (2) “disposals.”
Respondent, on the other hand, contended that the arrangement of October 1947 was contractual in nature, because the stipulation of facts, quoted above, said it was. Although the October 1947 arrangement was oral, and therefore perhaps revocable under the statute of frauds, respondent pointed out that it was not revoked. Respondent further argued that, while the arrangement in question may have been only a cutting license and not a sale, it was nevertheless a “disposal,” within the meaning of subsection (k) (2), citing Springfield Plywood Corporation v. Commissioner, 15 T.C. 697. Thus, respondent concluded, there was a “disposal” of all of the timber in October 1947, and hence there could be no later “disposal” of the same timber.
A new contention, however, was injected into the case when respondent filed its first supplemental brief, responding to appellant’s reply brief. Respondent then contended, for the first time, that if, as petitioner argued, the sales or disposals occurred as the timber was cut and paid for, the transactions involved no retention by the owner of an economic interest in the timber, this being an indispensable requirement under subsection <k) (2).
In our view, the stipulated facts concerning the arrangement between petitioner and Coast, quoted above, indicate that no contract was entered into in October 1947. Under that arrangement, petitioner “allowed” Coast to “start cutting timber” and “pay $5.00 per thousand feet as removed.” Coast was under no obligation to remove any timber, and accepted no risk with respect to timber not removed. Petitioner received no consideration in any form at the time of the October 1947 arrangement.
In reaching this conclusion, we have not overlooked the concluding words of the quoted stipulation, i. e., “This was an oral or implied contract.” In view of the immediately-preceding words of the stipulation, which plainly indicate that Coast incurred no contractual obligation at that time, it must be assumed that these last-quoted words refer to the entire transaction. This would include not only the license extended and price quoted in October 1947, but also Coast’s use of the license and acceptance of the offer by cutting and paying for the timber.
Assuming, as said in Springfield Plywood Corp. v. Commissioner, supra, that a cutting license can be a “disposal” under subsection (k) (2), it still must be a contractual disposal to meet the requirements of subsection (k) (2). In the Springfield case, the transaction, whether considered a sale or a license, was concededly evidenced by a contract between the owner and the cutter. That is not true here. It follows, therefore, that the October 1947 arrangement was not a “disposal,” within the meaning of subsection (k) (2), and does not stand in the way of characterizing the later cutting and payment transactions as such “disposals.”
We also hold, however, that these later cutting and payment transactions, which occurred between April 1948 and the end of 1949, were not within subsection (k) (2), because they did not represent disposals in connection with which the owner retained an economic interest in such timber. This, as before noted, is an indispensable requirement of subsection (k) (2).
If this were the only statutory provision under which the seller of timber could claim capital-gains treatment, the ruling just announced would be conclusive on this phase of the case. Capital-gains treatment is not available to this petitioner under subsection (k) (2).
Noting that the parties, up to and including the filing of first supplemental briefs, seemed to be preoccupied with subsection (k) (2) as a basis for capital-gains treatment, we requested them to submit second supplemental briefs. They were asked to discuss the question of whether capital-gains treatment in the sale of timber is attainable only where .the timber is disposed of under a contract by virtue of which the owner retains an economic interest (as provided in subsection (k) (2)), or whether capital-gains treatment is also available under some other statutory provision where timber is disposed of without retention of an economic interest.
In their second supplemental briefs, both parties call attention to the fact that capital-gains treatment is available for absolute sales of timber (no economic interest being retained) under either subsection (a) (1) or (j) (1) of § 117, provided that the six-month-holding-period requirement is met, and that the timber was not held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.
Respondent argues, however, that individual cutting and payment transactions between petitioner and Coast after April 1948 cannot be dealt with as absolute sales, under either of these subsections, since the tax court had stated in its opinion that the timber was held for sale to customers in the ordinary course of such business. Petitioner, on the other hand, contends that these transactions can be dealt with as absolute sales under these subsections of the statute, because the tax court’s statement that the timber was held for sale to customers in the ordinary course of business is not supported by evidence.
In so far as the record and briefs would indicate, therefore, the only thing which may stand in the way of applying one or the other of these last-mentioned subsections is that petitioner may have been holding the timber primarily for sale to customers in the ordinary course of its trade or business. If so, the transactions are excluded under the express terms of subsections (a) (1) and (j) (1).
As before noted, the trial court did not make a finding of fact, as such, on this point. It did, however, make a statement in the course of its opinion, substantially to the effect that the timber was being held primarily for sale to customers in the ordinary course of trade or business.
Respondent and petition are in agreement that there is no evidence in the record to support a finding of fact to this effect. So are we.
Under normal circumstances, a taxpayer desiring to take advantage of the subsections now under discussion has the burden of proving that he was not holding the property primarily for sale to customers in the ordinary course of his trade or business. In this case, however, the factual question concerning petitioner’s purpose in holding the timber was not pertinent to the issues as they were framed in the tax court. Only subsection (k) (2) was then being relied upon, regarding which the purpose in holding the timber was immaterial. Thus, all concerned failed to appreciate the presence of a factual issue which would have to be decided. Under these circumstances, this should not be regarded as a failure of proof for which petitioner must accept sole responsibility.
This presents the further question, however, of whether petitioner is now entitled to rely upon the absolute-sale provisions of subsection (a) (1) or (j) (1), having relied only upon subsection (k) (2) in the tax court. The general rule is that for points to be passed upon here, they must have been reserved in the lower court. We should not, however, hesitate to exercise the power and duty to notice error to which the attention of the tax court has not been called, where in exceptional cases this is necessary to prevent a miscarriage of justice. See Legg’s Estate v. Commissioner, 4 Cir., 114 F.2d 760, 767.
The fact that subsection (k) (2) makes express reference to timber disposals, while subsections (a) (1) and (j) (1) do not, may account for the sole and, as it turned out, mistaken reliance which counsel for petitioner placed upon subsection (k) (2) in the tax court proceedings. They would not have done so had they appreciated that a transaction consisting of a sale and immediate payment could not qualify under (k) (2) because it would involve no retention of an economic interest. But respondent seemingly shared this misconception at the outset, for he did not call attention to the point until he filed his first supplemental brief in this court. The “economic interest” provision of subsection (k) (2) thus constituted a mutually unperceived booby-trap which did not come to light until long after the tax court proceedings.
While the circumstance just related may not be sufficiently exceptional to warrant an absolute reversal, we think it sufficiently unique to warrant a remand for further tax court proceedings, if a miscarriage of justice would otherwise result. We have no doubts on the latter score. If petitioner did fully qualify for capital-gains treatment under subsection (a) (1) or (j) (1), there was no $38,304.21 deficiency. Insistence that petitioner pay such a nonexistent “deficiency” (plus the higher penalty assessments associated therewith), because both parties initially cited the wrong subsection of § 117, would, in our opinion, be a miscarriage of justice.
We therefore conclude that the case must be remanded, to the tax court for further proceedings and a determination as to whether petitioner was entitled to capital-gains treatment under subsection (a) (1) or (j) (1).
This brings us to the second and last question submitted for our consideration on this review. This is whether petitioner’s claimed depletion allowance for the taxable years 1948 and 1949 should be retroactively adjusted in petitioner’s favor, where it was discovered, in 1952, that the quantity of timber had originally been overstated in a substantial amount.
In reporting its income for the taxable years 1948 and 1949, petitioner used a basis for depletion of $3.941566 per thousand board feet. Respondent used the same basis in computing a portion of the deficiencies here in question. Both parties computed the basis for depletion by dividing the amount of timber on the Sage tract, as shown on schedule A of the agreement of December 13, 1946, into the total purchase price paid by petitioner for such timber. In 1952, petitioner first realized that schedule A of the Sage agreement erroneously overstated the quantity of timber by a substantial amount. When petitioner made an actual cruise shortly after logging operations ceased in November of 1954, the overstatement was found to be approximately forty-eight per cent.
The applicable statute in effect during the years in question was § 23 (m) (26 U.S.C.A.), which is quoted in the margin. The emphasized words in this statute make clear that the relief which petitioner seeks is not available. The commissioner may not apply a depletion rate, based upon a revised estimate, retroactively to tax years prior to the date of revision.
Treasury Regulations 111, § 29.28 (m)-22, relied upon by petitioner, has no reference to the problem before us. That section of the regulations relates to the matter of revaluation of the basis of timber property as opposed to a redetermination of the quantity of timber, with which § 29.23 (m)-26 is concerned. A revaluation changes the total depletion to be allowed over the life existence of the wasting asset. A revision of the number of units, on the other hand, leaves the total depletion allowance intact and merely reallocates the'deduction per unit. The last sentence of Treasury Regulations 111, § 29.23(m)-22, itself, refers the taxpayers specifically to § 29.23 (m)-26, for the procedure and rules applicable to a revision of the remaining depletive units.
Rust-Owen Lumber Co. v. Commissioner, 7 Cir., 74 F.2d 18, also relied upon by petitioner, likewise deals primarily with revaluation, although the number of units was necessarily considered in determining total aggregate value.
In Beck v. Commissioner, 15 T.C. 642, affirmed 2 Cir., 194 F.2d 537, the taxpayer was aware of facts which would have required a downward revision of the depletion deduction for the years 1938 through 1941, but did not come forward with the facts. Subsequent to the tax years, the commissioner discovered the facts, and proceeded to revise the depletion allowance for the years involved. Sustaining this action, the court held, in effect, that a downward revision in depletion allowance will be deemed to have been made as of the date that the taxpayer ascertains facts requiring a downward revision.
Reading together the cited cases, the rule which emerges is that a retroactive adjustment in the depletion allowance is permissible only where there has been suppression of information by the taxpayer. Neither Beck nor any other decision which has come to our attention stands for the proposition, advanced by petitioner, that, if the taxpayer could have ascertained during the taxable years an error in depletion allowance which is adverse to his interests, his later discovery thereof entitles him to retroactive adjustment in his favor.
We therefore conclude that the tax court did not err in holding that petitioner’s depletion allowance for the taxable years 1948 and 1949 is not adjustable to reflect the subsequently discovered underrun of timber on the tract.
The judgment is reversed and the cause is remanded to the tax court for further proceedings not inconsistent with this opinion.
. Penalty assessments in the amount of twenty-five per cent of this sum were also made, pursuant to 26 U.S.C.A. (I.R.C.1939) § 291, because of the late filing of tax returns for these years. The propriety of making a penalty assessment in this percentage on the amount of tax properly assessable for these years is not questioned.
. The record contains no other information concerning this arrangement between petitioner and Coast.
. Judge Murdock dissented.
. Section 117 (j) (1) provides, in part, that the term “property used in the trade or business” includes “timber or coal with respect to which subsection (k) (1) or (2) is applicable * * * ” Section 117(j) (2) provides, in part, that if, during the taxable year, the recognized gains upon sales of property used in the trade or business exceed the recognized losses from such sales, “such gains * * shall be considered as gains * * * from sales * * * of capital assets held for more than 6 months. * * * ”
. The tax court made no finding of fact, as such, concerning the taxpayer’s purpose in holding this timber. In its opinion, however, the court said:
“ * * * In this connection, respondent makes the point, which we feel to be well taken, that petitioner at no time engaged in any logging activities, but, rather, merely sold the Sage timber to others under arrangements whereby the vendees would do the logging; that these sales of timber were the only business activity entered into by petitioner; that it is thus to be considered as having been engaged in the trade or business of selling timber; and that tbe timber in dispute, whether or not it was standing, was held for sale to customers in the. ordinary course of such business.”
. See Rev.Rul. 57-90, 1957-10 Int.Rev. Bull. 9. Our reading of the statute accords with the view expressed in this ruling. A taxpayer is entitled to capital-gains treatment of income derived from the disposal of timber under § 117 (k) (2), without regard to the purpose for which the timber was held, provided the taxpayer satisfies the other requirements set forth in the cited statutes.
. See footnote 5. As before noted, the absolute sale provisions of subsections (a) (1) and" (j) (1) are not available to a taxpayer with respect to timber held primarily for sale to customers in the ordinary course of trade or business.
. This statement was made not for the purpose of passing upon the applicability of the absolute sales provisions of subsections (a) (1) or (j) (1), but in developing its additional and uninvited reason for bolding subsection (k) (2) inapplicable.
. In its brief filed in the tax court, respondent said (page 13): “ * * * Nor is there any evidence as to the trade or business of petitioner or tbe purpose for which the property was being held by petitioner.”
. See Homann v. Commissioner, 9 Cir., 230 F.2d 671, 672; Pacific Homes v. United States, 9 Cir., 230 F.2d 755, 761, concurring opinion.
. Ҥ 23. Deductions from gross income. In computing net income there shall be allowed as deductions:
* * * * *
“(m) In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. In any case in which it is ascertained as a result of operations or of development work that the recoverable units are greater or less than the prior estimate thereof, then such prior estimate (but not the basis for depletion) shall be revised and the allowance under this subsection for subsequent taxable ■years shall be based upon such revised estimate. In the case of leases the deductions shall be equitably apportioned between the lessor and lessee. In the case of property held by one person for life with remainder to another person, the deduction shall be computed as if the life tenant were the absolute owner of the property and shall be allowed to the life tenant. In the case of property, held in trust the allowable deduction shall be apportioned between the income, beneficiaries and the trustee in accord-’ anee with the pertinent provisions of the instrument creating the trust, or, in the absence of such provisions, on the basis of the trust income allocable to each.” (Emphasis supplied.)
. Petit Anse Co. v. Commissioner, 5 Cir., 155 F.2d 797, certiorari denied 329 U.S. 732, 67 S.Ct. 92, 91 L.Ed. 632; McCahill v. Helvering, 8 Cir., 75 F.2d 725. Treasury Regulations 111, § 29.23(m)-26, conforming to the statute, states that, where it is subsequently ascertained that there are more or less units of timber remaining than the original estimate indicates,
" * * * then the original estimate (but not the basis for depletion) shall be revised and the annual depletion allowance with respect to the property for subsequent taxable years shall be based upon the revised estimate.” ■ (Emphasis supplied.^ | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? | [
"Food & Drug Administration",
"General Services Administration",
"Government Accounting Office (GAO)",
"Health Care Financing Administration",
"Immigration & Naturalization Service (includes border patrol)",
"Internal Revenue Service (IRS)",
"Interstate Commerce Commission",
"Merit Systems Protection Board",
"National Credit Union Association",
"National Labor Relations Board",
"Nuclear Regulatory Commission"
] | [
5
] | songer_respond1_3_3 |
UNITED STATES of America, Plaintiff-Appellee, v. Steven MANN, Dennis McLaughlin, Marc Schulman and Bruce Cunningham, Defendants-Appellants.
No. 79-5165
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 17, 1980.
Rehearing Denied May 27,1980.
Dick DeGuerin, Houston, Tex., for defendants-appellants.
James R. Gough, John M. Potter, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Before GEE, RUBIN and POLITZ, Circuit Judges.
Fed.R.App.P. 34(a); 5th Cir. R. 18.
PER CURIAM:
Now well-established principles relating to stopping and searching U. S. vessels on the high seas are involved in the appeal of this criminal conviction after a jury trial on three counts, conspiracy to import marijuana, 21 U.S.C. § 963, conspiracy to possess marijuana with intent to distribute it, 21 U.S.C. § 846, and carrying firearms in the commission of a felony, 18 U.S.C. § 924(c)(2). We affirm the conspiracy convictions, but reverse the firearms conviction on the ground that it is not unlawful to carry firearms on the high seas.
The four defendants, Mann, McLaughlin, Cunningham, and Schulman were arrested aboard a U. S. registry vessel on the high seas off the Yucatan Peninsula. The vessel, Texas Star, a shrimper owned by a Texas corporation, Interstate Exploration, Inc., was travelling in the direction of the Texas coast when Coast Guard officers observed her from a helicopter, and noted her course and speed. They communicated with the crime information center in El Paso, Texas, but the center had no information regarding the vessel. However, she was headed toward Texas, was not rigged for shrimping, carried no shrimp nets, was not on waters usually fished for shrimp and the Coast Guard saw no one aboard engaged in fishing activity. Therefore, the Coast Guard officer aboard the helicopter’s base vessel,- the Valiant, decided to board the Texas Star, ostensibly for a safety and document inspection. The officer in charge of the boarding party told those aboard that he was checking for compliance with U. S. laws and whether there were guns aboard. Mann said there were weapons on the ship and produced an AR 15 semi-automatic rifle and a shotgun. The vessel’s papers showed that 19 days previously she had been boarded by the Captain of the Port of Galveston and his inspection revealed that the pollution plaque was not in the engine room.
The Coast Guard officer went to the engine room to see whether the discrepancy had been corrected. En route he smelled what he thought to be marijuana. There were burlap covered bags in the room so he asked about their contents. Mann said the cargo was bauxite. The Coast Guard officer opened some of the bags, found marijuana and gave the defendants Miranda warnings. The Coast Guard party then searched the vessel and discovered 22,590 pounds of marijuana, two .22 caliber pistols, a shotgun and 980 rounds of ammunition.
Mann and McLaughlin thereafter made incriminating statements that were used against them at the trial. Seven issues are raised on appeal. We deal separately with defendants’ challenges of the conspiracy convictions, the firearms convictions and the sentences of defendants Mann and McLaughlin.
I.
Defendants initially challenge the introduction of evidence seized from the Texas Star and incriminating statements made after the stop of the vessel. As defendants recognize in their brief, the Coast Guard has plenary authority to stop and board an American vessel on the high seas for a safety and document inspection as it did here. See 14 U.S.C. § 89(a); United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc). The Texas Star was registered under the laws of the United States and was, therefore, subject to this authority.
Defendants argue, however, that the real reason for .the search was to uncover contraband and that the Coast Guard’s invocation of its section 89(a) safety and document check authority was pretextual. Even accepting that characterization of the stop and boarding, we need not determine whether it would distinguish this case from Warren, supra, for the district judge concluded that the facts known to the Coast Guard created a reasonable suspicion that the vessel was carrying contraband to the United States. We agree, and conclude that the stop and boarding was, therefore, justified. See United States v. Serrano, 607 F.2d 1145 (5th Cir. 1979); United States v. Kleinschmidt, 596 F.2d 133 (5th Cir. 1979), cert. denied, — U.S. -, 100 S.Ct. 267, 62 L.Ed.2d 184.
Once the customs officer was aboard, the odor of marijuana in the engine room and the presence of weapons justified the Coast Guard in taking further steps to ascertain the nature of the cargo the vessel carried. United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc); United States v. Conroy, 589 F.2d 1258 (5th Cir. 1979). Thus, whether the stop was intended to be only for safety and document inspection or whether it was designed to seek signs of illegal cargo, it was constitutional.
Defendants challenge the sufficiency of the evidence to support the conclusion that they intended to distribute the contraband cargo. The defendants were apprehended with over 22,500 pounds of marijuana in their possession, far too much for the personal consumption of four individuals. Having determined that defendants planned to import their cargo, the jury was entitled to infer from the facts before it that some plan had been made for its disposition. As we have previously noted “[t]he very size of a . . . cache can be sufficient to show intent to distribute . . .” United States v. Rodriguez, 585 F.2d 1234, 1246 (5th Cir. 1978), aff'd 612 F.2d 906 (5th Cir. 1980) (en banc); United States v. Perry, 480 F.2d 147 (5th Cir. 1973); United States v. Mather, 465 F.2d 1035 (5th Cir.), cert. denied, 409 U.S. 1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (1972).
Defendants argue that, even though the evidence may support convictions for both conspiracies, there was but a single agreement and a double conviction violates double jeopardy. The argument was settled when this court en banc held that the conviction and punishment in one proceeding of a single conspiracy under two specific conspiracy statutes does not violate the double jeopardy clause. See United States v. Rodriguez, 612 F.2d 906 (5th Cir. 1980) (en banc) But see id. at 925 (Rubin, J., dissenting).
The defendants final attack on the conspiracy convictions challenges the jurisdiction of the court because of the failure of the government to prove any overt act within the United States in furtherance of the conspiracy. It is not necessary for the government to állege or prove an overt act to obtain convictions under the controlled substance conspiracy statutes. See United States v. Rodriguez, 612 F.2d 906, 919 n. 37 (5th Cir. 1980) (en banc). The district court was not divested of jurisdiction of the offense because the government failed to do what it was not required to do. “The nation has long asserted the objective view, under which its jurisdiction extends to persons whose acts have an effect within the sovereign territory even though the acts themselves occur outside it.” United States v. Cadena, 585 F.2d 1252 (5th Cir. 1978). When a conspiracy statute does not require proof of overt acts, the requirement of territorial effect may be satisfied by evidence that the defendants intended their conspiracy to be consummated within the nation’s borders. See United States v. Postal, 589 F.2d 862, 886 n. 39 (5th Cir. 1979). Any other rule would place the United States in the anomalous position of being prohibited from apprehending and punishing those who plan to violate its laws until after the plan has taken fruit within its territorial boundaries. Thus, although Congress may have intended to strike at crimes and conspiracies begun outside the United States, it could not do so until they had some internal effect. Such a rule would not only make enforcement of our laws increasingly difficult, it would also conflict with the purpose of the objective view of jurisdiction. We, therefore, conclude that the district court had jurisdiction to try the defendants for a conspiracy aimed at violating United States law and intending effects in its territory even in the absence of proof of an overt act committed within this country.
II.
Defendants challenge their convictions for unlawfully carrying firearms in the course of a felony. 18 U.S.C. § 924(c)(2). “Section 924(c)(2) is violated only if the act of carrying the firearm is in and of itself a violation of federal, state or local law.” United States v. Bower, 575 F.2d 499, 501 (5th Cir. 1978). Defendants contend that there was no proof that their possession of weapons violated any federal, state or local law; we agree.
The government does not argue that carrying a weapon aboard a vessel on the high seas is itself illegal. To establish that carrying the firearms was unlawful it relies upon several provisions of both state and federal law.
None of the statutes we are referred to by the government makes illegal the conduct here — carrying a weapon on the high seas. Several of the statutes make the carrying of weapons within the territorial boundaries of a state illegal, e. g., Tex.Pen. Code § 46.02(a); L.S.A.-R.S. 14.95(A)(1); however, there is no proof that defendants had the weapons in their possession while they were in Texas and Louisiana. Had the defendants carried the weapons into Texas on their return, they would have violated federal prohibitions on the transporting and importation of firearms. The charge is not a conspiracy to violate the firearms statute, whatever the basis for such a charge might be, but possession of the firearms. The record contains no evidence that defendants’ possession of the weapons seized from the Texas Star was unlawful. Therefore, the convictions under 18 U.S.C. § 924(c)(2) must be reversed.
III.
At the sentencing hearing, the judge stated that he believed that Schulman and Cunningham had no knowledge of the identity of the backers of the drug scheme, and he sentenced them to twelve months with a six-year special parole term. The judge further stated that he did not believe the testimony of Mann and McLaughlin that they had no useful information to provide to the government and did not know of the identity of their financial backers, and he found them neither repentant nor determined to avoid similar action in the future. He then stated his intention to impose the maximum penalty of five years on Counts 1 and 2 and ten years on Count 3, running consecutively for a total of twenty years and a $30,000 fine. However, the judge invited their attorney to move for reduction of sentence.
Following the filing of the motion, and counsel’s argument that punishment cannot be enhanced for refusal to provide information, the court reduced the sentences of these two defendants to five years on Count 1, five years on Count 2, and seven and one half years on Count 3, all sentences to run concurrently.
While a court may not punish a defendant who refuses to provide information to the government, see United States v. Wright, 533 F.2d 214, 216 (5th Cir. 1976), it may consider a number of factors including truthfulness. See United States v. Grayson, 438 U.S. 41, 50-51, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 582 (1978); United States v. Richardson, 582 F.2d 968, 969 (5th Cir. 1978). The reduction of the original sentence reflects an appropriate reconsideration of the judge’s initial resolve and an elimination of the possible presence of improper motive. The fact that the two other defendants received lesser sentences is irrelevant. See United States v. Hayes, 589 F.2d 811 (5th Cir. 1979). Mann and McLaughlin appeared- to the district judge not only to be the masterminds of the criminal scheme but also to be less truthful and less repentant than their confederates. The assessment of a lengthier prison term for those two was within his discretion.
Accordingly, the convictions are REVERSED on Count 3 and AFFIRMED on all other counts. This case is REMANDED to the district court for resentencing.
. We note that, in his instructions to the jury, the judge neglected to charge that the carrying of the firearm must be unlawful. Although the unlawfulness of the defendants’ possession of firearms might be viewed as a question of law, United States v. Rivero, 532 F.2d 450, 458-59 (5th Cir. 1976), in this case a resolution of the question would depend upon the presence of facts establishing that the defendants were carrying the firearms while inside the United States. We have concluded that there was insufficient evidence to support such a conclusion. However, even if the evidence in the record could support that inference, the charge to the jury did not require them to find such facts before returning a verdict of guilty. Thus, it is likely that the jury returned a guilty verdict on Count III on the basis of facts which did not establish that the defendants were unlawfully carrying firearms. We cannot assume that the jury determined factual issues against the defendants which,' on the charge given, it did not need to determine before returning a verdict. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
0
] | songer_typeiss |
UNITED STATES of America, Plaintiff-Appellant, v. Alga HOPE, Jr., Defendant-Appellee.
No. 88-5443.
United States Court of Appeals, Eleventh Circuit.
Dec. 27, 1988.
Dexter W. Lehtinen, U.S. Atty., Richard Scruggs, Linda Collins Hertz, Harriet R. Galvin, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.
Joseph Paglino, Miami, Fla., for defendant-appellee.
Before TJOFLAT and FAY, Circuit Judges, and FAWSETT , District Judge.
Honorable Patricia C. Fawsett, U.S. District Judge for the Middle District of Florida, sitting by designation.
FAY, Circuit Judge:
This is an interlocutory appeal brought by the United States from an order in the district court granting the motion of defendant-appellee Alga Hope, Jr. to dismiss Count I of a five-count indictment. Count I charges the defendant with conspiracy to defraud the United States and to conceal and cover up material facts in a matter within the jurisdiction of an agency or department of the United States, in violation of 18 U.S.C. § 371. The Government contends that Count I contains the elements of the offense charged and that the sufficiency of the Government’s evidence is a matter of proof to be determined at trial. We find that under Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), Count I of the indictment fails to state a violation of § 371 because it alleges neither a direct nor indirect fraud on the United States. We therefore affirm the order of the district court.
I. BACKGROUND
The facts as alleged by the Grand Jury are as follows: Alga Hope, Jr. was the President and Executive Director of the Economic Development Corporation of Dade County, Inc. (EDCO), a nonprofit Florida corporation, which was organized in the aftermath of the 1980 riots in Miami to receive and distribute federal funds in the form of loans to minority owned businesses in Dade County, Florida. The funds were provided to Metropolitan Dade County as “Community Development Block Grants,” which EDCO would request from the Dade County Office of Community and Economic Development (OCED). Throughout Hope’s tenure with EDCO, he and Hilario James were the principals of three Florida corporations, among them, Sunbelt Recycled Rubber Collection Centers, Inc. (Sunbelt). Hope and James conspired to obtain through EDCO a federally funded loan of $75,000 for Sunbelt.
The indictment charges that in furtherance of the conspiracy, Hilario James resigned his position as business analyst and finance specialist with EDCO in order to apply to EDCO for the Sunbelt loan. Hope then used his position at EDCO to vote in favor of the loan to Sunbelt at a loan committee meeting, without disclosing his part ownership of the company. Also in furtherance of the conspiracy, Hope recommended to OCED officials that the Sunbelt loan be approved and that federal funds be drawn down to pay the loan. Hope allegedly submitted false documents to OCED in support of the loan application.
Hope and James were indicted on November 20, 1986 in a five-count indictment for violations of 18 U.S.C. § 371 (conspiracy to defraud the government and to cover up material facts within the jurisdiction of the Department of Housing and Urban Development (HUD) (Count I); 18 U.S.C. § 1001 (making false statements to HUD) (Count II); and 18 U.S.C. § 1951 (extortion) (Counts III-IV). Count I sets out seventeen overt acts committed by Hope or James in furtherance of the conspiracy. (Appendix A) None of the alleged overt acts mentions any communication or transaction between either of the defendants and any agency or department of the United States.
The defendant filed a motion to dismiss the indictment on March 15, 1988, claiming that under Tanner v. United States, supra, the indictment failed to allege the elements of a § 371 conspiracy. The court held a hearing on April 14, 1988 on the motion to dismiss and heard reargument on the motion on May 12, 1988. The court ruled that Tanner mandated a dismissal of the conspiracy count, but that the case would go to trial on the remaining counts. Before selection of a jury, the Government filed with our court a notice of appeal and a motion for an emergency stay of the trial proceedings. A hearing was held by telephone before the Honorable James C. Hill, Circuit Judge, on the Government’s motion for emergency stay. This motion was denied as moot once the district court granted a motion to continue pending the outcome of this appeal.
II. THE TANNER CASE AND § 371
In Tanner, the Supreme Court held that in a § 371 conspiracy, the target of the conspiracy must be the United States or one of its agencies or departments, either directly or through a third party. Defendants Tanner and Conover were indicted and convicted of inter alia, conspiring to defraud the United States by impairing, impeding, obstructing and defeating the lawful functions of the Rural Electrification Administration (REA), a credit agency of the United States Department of Agriculture, in violation of 18 U.S.C. § 371. Defendant Conover, the procurement manager for Seminole Electric Cooperative, Inc., a Florida corporation, improperly aided codefendant Tanner with respect to a contract bid on a construction project for Seminole. The construction contract was paid with loan money guaranteed by REA. Conover also made material misrepresentations to a bonding company regarding the project’s state of completion.
On appeal to our court, United States v. Conover, 772 F.2d 765 (11th Cir.1985) the conviction was affirmed. Before the Supreme Court, the defendants argued that at most, the evidence showed that Seminole, a private corporation, was defrauded, and that absent a direct fraud on the REA a conviction for conspiracy to defraud the United States could not stand. The Government made two arguments: (1) that a conspiracy to defraud the United States may be effected by third parties; and (2) that Seminole, as the recipient of federal financial assistance and supervision could be treated as the United States under § 371. The Supreme Court rejected the latter argument:
The conspiracies criminalized by § 371 are defined not only by the nature of the injury intended by the conspiracy, and the method used to effectuate the conspiracy, but also — and most importantly —by the target of the conspiracy_ [T]he Government, in arguing that § 371 covers conspiracies to defraud those acting on behalf of the United States, asks this Court to expand the reach of a criminal provision by reading new language into it. This we cannot do. Tanner, supra, 107 S.Ct. at 2752-53.
The Court did not, however, reverse the convictions. The Court accepted the Government’s first argument, that a § 371 conviction could be based upon a conspiracy to cause some third party to defraud the United States unwittingly. The case was thus remanded to our court to determine if there was sufficient evidence to show that the defendants conspired to cause Seminole to make false statements to REA.
III. APPLICATION OF TANNER
Under Tanner, Count I of the indictment in this case can survive only if it alleges that an object of the conspiracy was to defraud HUD, either directly or by causing EDCO to perpetrate the fraud. A close examination of Count I reveals that it alleges no such thing. The Government contends that the dismissal of Count I was error because the facts as alleged are sufficient to charge a § 371 conspiracy. However, Count I of the indictment states quite specifically that Hope’s conduct was aimed directly and exclusively at agencies and officials of Dade County. (Appendix A). The accusatory language in Count I closely tracks the language of the statute, but it does not allege any object of the conspiracy or overt act which is directed at the United States. Since under Tanner EDCO may not itself be treated as the United States, Count I fails to allege a conspiracy to defraud the United States directly.
It is a closer question whether Count I permits the Government to prove at trial that Hope conspired to manipulate EDCO in order that HUD and the United States be defrauded indirectly. The Court noted in Tanner that § 371, covering conspiracies to defraud “in any manner or for any purpose” does not limit the method which may be used to defraud the United States: “A method that makes uses of innocent individuals or businesses to reach and defraud the United States is not for that reason beyond the scope of § 371.” Tanner at 2752; see also United States v. Bornstein, 423 U.S. 303, 309, 96 S.Ct. 523, 528, 46 L.Ed.2d 514 (1976); United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (fact that a false claim passes through a third party on its way to the government does not preclude liability under the False Claims Act).
We agree, as a general matter, with the Government’s contention that it need not have specified in a separate clause of the indictment that the conspiracy contemplated an indirect fraud on the United States in order for the Government to introduce evidence in support of that theory. In this case, however, the indictment as framed fails to allege a conspiracy to defraud the United States either directly or indirectly. By explicitly naming county agencies as the sole and ultimate targets of the conspiracy in Count I, the Government precludes itself from claiming that it “fully intended to present sufficient proof” that HUD was either directly or indirectly defrauded by the defendant. (Brief for appellant at 10)
The former Fifth Circuit has held “that if an indictment enumerates the particular facts alleged to constitute the element of a charged crime and the proof makes out the elements in a different manner, a fatal variance results.” United States v. Guthartz, 573 F.2d 225, 228 (5th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed. 2d 173 (1987). Under Tanner, the particular facts alleged in the indictment in this case even if taken as true, do not state a violation of § 371. To allow the Government to introduce evidence to show that the defendants violated § 371 by conspiring to defraud the United States would be to permit a fatal variance from the words of the indictment.
IV. TWO OBJECTS ARGUMENT
The Government contends that a second reason that the decision of the district court should be reversed is that the conspiracy charged in Count I has a second, independent object; to knowingly and willfully make false statements in violation of 18 U.S.C. § 1001. Because the second object of the § 371 conspiracy is to violate a separate criminal statute, the Government argues that the court’s ruling was erroneous, since it precludes the Government from presenting evidence as to this second object.
We reject this argument. Section 371 explicitly covers conspiracies to defraud the United States or commit any offense against the United States. Section 1001 proscribes the substantive offense of falsifying or covering up material facts in any matter within the jurisdiction of any department or agency of the United States. A conspiracy to commit “any offense” against the United States (here a § 1001 offense) is as much a violation of § 371 as is a conspiracy to defraud the United States.
The Supreme Court in Tanner explained that the conspiracies criminalized by § 371 are defined by the target of the conspiracy. The holding in Tanner thus applies with equal force to the “any offense” clause of § 371 as it does to the “defraud” clause. Again, by specifically referring to county departments and agencies as the targets of the conspiracy, to the exclusion of departments or agencies of the United States, the overt acts section of the indictment precludes the Government from presenting evidence as to a § 371 conspiracy, no matter what its object. To permit the Government to do so would allow the possibility that the defendant could be convicted of an offense with which he had not been charged.
AFFIRMED.
APPENDIX A
The Grand Jury charges that:
COUNT I
Economic Development Corporation of Dade County
1. At all times relevant to this indictment the Economic Development Corporation of Dade County, Inc. (hereinafter EDCO) was a non-profit corporation, registered in the State of Florida. From May, 1981 to October, 1982, EDCO was located at 1001 N.W. 54th Street, Miami, Florida. From November, 1982, until October, 1984, EDCO was located at 8270 Northeast Second Avenue, Miami, Florida. EDCO was organized to receive and distribute federal funds in the form of loans to minority owned businesses in Dade County, Florida.
2. At all times relevant to this indictment EDCO received federal funds from the United States Department of Housing and Urban Development. These federal funds were provided to Metropolitan Dade County Florida in the form of Community Development Block Grants. EDCO would and did request funds from the Dade County Office of Community and Economic Development (hereinafter OCED). These funds would be drawn down in order to provide loans to minority businesses.
3. At all time relevant to this indictment EDCO received additional federal funds from the United States Department of Commerce, Minority Business Development Agency. The purpose of these funds was to allow EDCO to provide management and technical assistance to minority owned businesses.
The Defendants:
4. At all times relevant to this indictment ALGA HOPE, JR., was employed as the President and Executive Director of EDCO, and was responsible for EDCO’s overall operations.
5. From in or about May 1982, until on or about April 6, 1984, HILARIO JAMES, was employed by EDCO as a business analyst and finance specialist. His responsibilities included management and business assistance to EDCO’s clients.
6. At all times relevant to this indictment ALGA HOPE, JR. and HILARIO JAMES were the principals of three corporations registered in the State of Florida: Sunbelt Recycled Rubber Industries, Inc., incorporated on or about May 11, 1983 and allegedly located at 17860 Southwest 111th Avenue, Miami, Florida; Sunbelt Recycled Rubber Collection Centers, Inc., incorporated on or about May 11, 1983 and allegedly located at 17860 Southwest 111th Avenue, Miami, Florida; and Sunbelt Recycled Rubber Products, Inc., incorporated on or about July 29, 1983, and allegedly located at 781 N.E. 75th Street, Miami, Florida. Sunbelt Recycled Rubber Collection Centers, Inc. was a subsidiary of Sunbelt Recycled Rubber Industries, Inc.
7. From in or about May 1983 to in or about August 1984, at Miami, Dade County, in the Southern District of Florida and elsewhere, the defendants,
ALGA HOPE, JR. and HILARIO JAMES,
did knowingly and willfully combine, conspire, confederate and agree with each other and with persons unknown to the Grand Jury:
(1) to defraud the United States of America, and the Department of Housing and Urban Development, an agency of the United States, by impairing, obstructing, and defeating the lawful governmental function of administration and enforcement of the community Development Block Grant Program by means of fraud, deceit and dishonesty; and
(2) to knowingly and willfully conceal, cover up and cause to be concealed and covered up, material facts, that is, the co-ownership by ALGA HOPE, JR. of Sunbelt Recycled Rubber Collection Centers, Inc., in a manner within the jurisdiction of an agency or department of the United States, that is, the Department of Housing and Urban Development, in violation of Title 18, United States Code, Section 1001.
The Manner and Means of the Conspiracy:
8. It was part of the conspiracy that HILARIO JAMES would and did resign from his position as business analyst and finance specialist with EDCO so that he could apply to EDCO for a federally funded loan for Sunbelt Recycled Rubber Collection Centers, Inc., the corporation that he co-owned, with ALGA HOPE, JR.
9. It was further part of the conspiracy that ALGA HOPE, JR., as the President of EDCO, voted in favor of the loan to Sunbelt Recycled Rubber Collection Centers, Inc. at the meeting of EDCO’s loan committee without disclosing that he was a co-owner of the corporation.
10. It was further part of the conspiracy that ALGA HOPE, JR., without disclosing his co-ownership of Sunbelt Recycled Rubber Collection Centers, Inc., recommended to officials of Dade County OCED that the loan to the corporation be approved and that federal funds be drawn down.
11. It was further part of the conspiracy that false and fraudulent documents were submitted to Dade County OCED in support of the loan application of Sunbelt Recycled Rubber Collection Centers, Inc. These false and fraudulent documents included a purchase agreement and sales receipts between Sunbelt Recycled Rubber Collection Centers, Inc. and TCM International, Inc.
OVERT ACTS
In furtherance of the conspiracy and to effect the objects thereof, the following overt acts among others were committed by at least one of the defendants within the Southern District of Florida and elsewhere:
A. On or about March 20,1984, HILARIO JAMES sent a letter to ALGA HOPE, JR., submitting his resignation from EDCO.
B. On or about March 20,1984, HILARIO JAMES submitted an application to EDCO, requesting a federally funded loan in the amount of $85,000 for Sunbelt Recycled Rubber Collection Centers, Inc.
C. On or about March 30, 1984, ALGA HOPE, JR., submitted the loan application of Sunbelt Recycled Rubber Collection Centers, Inc. to an official of Dade County OCED.
D. On or about April 5, 1984, ALGA HOPE, JR., attended a meeting of the EDCO loan committee at which he voted in favor of the loan to Sunbelt Recycled Rubber Collection Centers, Inc.
E. On or about April 10, 1984, ALGA HOPE, JR., sent a letter to Dr. Ernest Martin, Director of Dade County OCED, recommending approval of the loan to Sunbelt Recycled Rubber Collection Centers, Inc.
F. On or about April 12, 1984, ALGA HOPE, JR., sent a letter to Dr. Ernest Martin, Director, Dade County OCED, responding to questions raised by OCED concerning the loan to Sunbelt Recycled Rubber Collection Centers, Inc.
G. On or about April 12, 1984, ALGA HOPE, JR., requested a draw down of $75,-000.00 in federal funds for the loan to Sunbelt Recycled Rubber Collection Centers, Inc.
H. On or about April 23, 1984, ALGA HOPE, JR., and HILARIO JAMES endorsed a check from Dade County, in the amount of $65,000.00, made out jointly to EDCO and to Sunbelt Recycled Rubber Collection Centers, Inc.
I. On or about April 26, 1984, ALGA HOPE, JR., HILARIO JAMES and an attorney attended a meeting at EDCO in which the loan to Sunbelt Recycled Rubber Collection Centers, Inc., was closed.
J. On or about April 27, 1984, ALGA HOPE, JR., signed an EDCO check in the amount of $73,750.25, payable to Sunbelt Recycled Rubber Collection Centers, Inc.
K. On or about May 4, 1984, HILARIO JAMES wrote a check from Tropical Federal Savings and Loan Association, account number 01 00043727, in the amount of $1,500.00, payable to HILARIO JAMES.
L. On or about June 11, 1984, HILARIO JAMES, wrote a cheek from Tropical Federal Savings and Loan Association, account number 01 00043277, in the amount of $1,000.00, payable to HILARIO JAMES. The check is annotated “L/P on behalf of A1 Hope.”
M. On or about June 18, 1984, HILARIO JAMES, wrote a check from Tropical Federal Savings and Loan Association, account number 01 00043277, in the amount of $500.00, payable to HILARIO JAMES. The stub for the check is annotated “loan payable — A1 Hope.”
N. On or about June 20, 1984, HILARIO JAMES, wrote a check from Tropical Federal Savings and Loan Association, account number 01 000433277, in the amount of $300.00, payable to HILARIO JAMES. The check is annotated “Loan Payable to A1 Hope.”
O. On or about July 2, 1984, HILARIO JAMES, wrote a check from Tropical Federal Savings and Loan Association, account number 01 00043277, in the amount of $2,000.00, payable to Sunbelt Recycled Rubber Industries, Inc. and annotated “management fees.”
P. On or about July 3, 1984, HILARIO JAMES, wrote a check from Tropical Federal Savings and Loan Association, account number 01 00043277, in the amount of $800.00, payable to HILARIO JAMES. The check is annotated “Hilario James A1 Hope.”
Q. On or about August 4, 1984, ALGA HOPE, JR. and HILARIO JAMES, meet with a consultant in Los Angeles, California to discuss a report prepared for Sunbelt Recycled Rubber Industries, Inc.
All in violation of Title 18, United States Code, Section 371.
. 18 U.S.C. § 371 provides, in full, as follows:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
.18 U.S.C. § 1001 provides, in full, as follows:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
. James subsequently pleaded guilty to some of the charges.
. The Supreme Court has interpreted the scope of the phrase “to defraud" under § 371 to reach “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966); see also Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924).
. On remand, this court reversed the convictions of Tanner and Conover, finding insufficient evidence to support the theory that the defendants conspired to induce Seminole to make misrepresentations to REA. United States v. Conover, 845 F.2d 266 (11th Cir.1988).
. In Tanner, the Government did allege an indirect fraud as a separate object of the conspiracy: It was further a part of the conspiracy that the defendants would and did cause Seminole Electric to falsely state and represent to the Rural Electrification Administration that an REA-approved competitive bidding procedure had been followed in awarding the access road construction contracts. Tanner, supra, 107 S.Ct. at 2754.
. The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. We reject defendant’s claim that Count I must be dismissed on independent grounds for duplicity, which is the joining of two or more separate crimes in a single count of an indictment. United States v. Ramos, 666 F.2d 469, 473 (11th Cir.1982). While it is true that courts have interpreted the "defraud the United States" and the "commit any offense” clauses of § 371 as separate criminal offenses, see, e.g., United States v. Haga, 821 F.2d 1036, 1039 (5th Cir.1987), it is well established that a single conspiracy count may properly allege multiple objectives. United States v. Alvarez, 735 F.2d 461, 465 (11th Cir.1984). The Supreme Court stated in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), that the allegation in a single count of a conspiracy to commit several crimes does not render the count duplicitous, for “[t]he conspiracy is the crime and that is one, however diverse its objects.” Id. at 54, 63 S.Ct. at 102, 87 L.Ed. at 28-29 (citations omitted). Count I alleges a single conspiracy in violation of § 371, with two separate objects, and is not duplicitous. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". | What is the general issue in the case? | [
"criminal",
"civil rights",
"First Amendment",
"due process",
"privacy",
"labor relations",
"economic activity and regulation",
"miscellaneous"
] | [
0
] | songer_geniss |
FANELLI v. UNITED STATES GYPSUM CO.
No. 245.
Circuit Court of Appeals, Second Circuit.
Feb. 17, 1944.
Cravath, De Gersdorff, Swaine & Wood, of New York City (Scott, MacLeish & Falk and Charles M. Price, all of Chicago, 111., and George S. Collins, of New York City, of counsel), for appellant.
Meyer Lindenbaum, of New York City (Samuel Mezansky, of New York City, of counsel), for appellee.
Douglas B. Maggs, Sol., Bessie Margolin, Asst. Sol., John K. Carroll, Regional Atty., Peter Seitz and Flora G. Chudson, for United States Department of Labor, all of Washington, D. C., amicus curiae.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. A month after his discharge, plaintiff made a one-sheet memorandum which, he testified, set forth the details of his overtime work from the beginning of his employment to the date of that discharge, a period of about five months. Over defendant’s objection, the trial judge permitted plaintiff, when testifying, to use this memorandum to refresh his recollection. Defendant, asserting error, relies on Putnam v. United States, 162 U.S. 687, 16 S. Ct. 923, 40 L.Ed. 1118, where the court held it reversible error to allow a witness for the government in a criminal trial to use similarly, in testifying as to certain conversations, a transcript of his testimony before a grand jury, concerning those conversations, given four months after they had occurred. The court based that ruling on the theory that it is dangerous to trust to the accuracy of memory stimulated by a record made when the facts were not “fresh in the mind.”
That theory has little to commend it. Common experience, the work of Proust and other keenly observant literary men, and recondite psychological research, all teach us that memory of things long past can be accurately restored in all sorts of ways. The creaking of a hinge, the whistling of a tune, the smell of seaweed, the sight of an old photograph, the taste of nutmeg, the touch of a piece of canvas, may bring vividly to the foreground a consciousness the recollection of events that happened years ago and which would otherwise have been forgotten. If a recollection thus reawakened be then set down on paper, why should not that paper properly serve in the courtroom, as it does in everyday life, to prod the memory at still a later date ? The memory-prodder may itself lack meaning to other persons as a symbol of the past event, as everyone knows who has ever used a knot in his handkerchief as a reminder. Since the workings of the human memory still remain a major mystery after centuries of study, courts should hesitate before they glibly contrive dogmatic rules concerning the reliability of the ways of provoking it.
Fortunately, the Putnam case, severely criticized by Wigmore, has recently had most of its teeth extracted by United States v. Socony-Vacuum Oil Company, 310 U.S. 150, 235, 236, 60 S.Ct. 811, 84 L.Ed. 1129. There the Supreme Court, referring to Putnam and citing Wigmore’s adverse comments, said that no inflexible four-months’ rule exists as to such recollection-refreshing memoranda, and went at lekst as far as to hold that in each case the trial judge has a reasonable discretion to allow the use of such a document if satisfied that the interval between its making and the occurrence of the facts are not excessive. The trial judge here did not abuse his discretion—particularly as plaintiff was able to, and did, testify, independently of the memorandum, as to the minimum number of hours of his overtime work; the trial judge instructed the jury that the memorandum was not to be considered as “an original document * * * indicative of the fact that he worked overtime,” did not “verify” plaintiff’s testimony “in any way” and did not “make his testimony any stronger”; and the trial judge admonished the jury in his final charge that “there is no document to prove the statement” of the plaintiff.
2. Section 13(a) explicitly authorizes the Administrator to “define and delimit,” by regulations, the terms used in that section. As his regulations are reasonable, they are as binding on the courts as if they had been directly enacted by Congress. In conferring such authority upon the Administrator, Congress acted in accordance with a long established tradition (frequently sanctioned by the Supreme Court), and did not unconstitutionally delegate powers vested in the legislative branch. The statutory standards here are far more precise than many which the Supreme Court has held sufficient; the delegation is unmistakably within the scope of rulings made by the Supreme Court over the course of many years. The trial judge therefore properly refused to instruct the jury that it could disregard the regulations.
3. The trial judge also correctly refused to instruct the jury that, “as a matter of law,” the plaintiff was employed in a bona fide executive or administrative capacity.
Plaintiff did not come within the exception provided in § 13(a) unless all six clauses of the regulation applied to him, since those clauses are conjunctive not disjunctive. As to two of them, Clauses (C) and (D), the evidence was not so unequivocal that the trial judge could properly have held that there were not questions of “fact” for the jury.
Affirmed.
Evidence, 3d ed. § 761.
In the Socony-Vacuum case, much of the matter used to refresh recollection consisted of transcripts of grand jury testimony given more than a year after the facts to which that testimony related.
Helliwell v. Haberman, 2 Cir., 140 F.2d 833; Walling v. Yeakley, 10 Cir., 140 F.2d 830; cf. Knight v. Mantel, 8 Cir., 135 F.2d 514, 517.
Because of his express authority to make them, the Administrator’s definitions have a greater dignity than ordinary administrative interpretations. Even such interpretations are entitled to great weight; see, e. g., Gray v. Powell, 314 U.S. 402, 411-413, 62 S.Ct. 326, 86 L.Ed. 301.
Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294; Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; Union Bridge Co. v. United States, 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; I. C. C. v. Goodrich Transit Co., 224 U.S. 194, 32 S.Ct. 436, 56 L.Ed. 729; Avent v. United States, 266 U.S. 127, 130, 131, 45 S.Ct. 34, 69 L.Ed. 202; Hampton v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624; Arizona Grocery Co. v. Acheson, Topeka & Santa Fe Ry., 284 U.S. 370, 386, 52 S.Ct. 183, 76 L.Ed. 348; United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85, 53 S.Ct. 42, 77 L.Ed. 175; Panama Refining Co. v. Ryan, 293 U.S. 388, 426-430, 55 S.Ct. 241, 79 L.Ed. 246; Currin v. Wallace, 306 U.S. 1, 15, 59 S.Ct. 379, 83 L.Ed. 441; United States v. Rock Royal Co-op., Inc., 307 U.S. 533, 574, 59 S.Ct. 993, 83 L.Ed. 1446; Sunshine Coal Co. v. Adkins, 310 U.S. 381, 398, 60 S.Ct. 907, 84 L.Ed. 1263; National Broadcasting Co. v. United States, 319 U.S. 190, 225, 226, 63 S.Ct 997, 87 L.Ed. 1344; United States v. Goldsmith, 2 Cir., 91 F.2d 983, 985, certiorari denied 302 U.S. 718, 58 S.Ct. 38, 82 L.Ed. 555.
Helliwell v. Haberman, supra. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations". | What is the specific issue in the case within the general category of "labor relations"? | [
"union organizing",
"unfair labor practices",
"Fair Labor Standards Act issues",
"Occupational Safety and Health Act issues (including OSHA enforcement)",
"collective bargaining",
"conditions of employment",
"employment of aliens",
"which union has a right to represent workers",
"non civil rights grievances by worker against union (e.g., union did not adequately represent individual)",
"other labor relations"
] | [
5
] | songer_casetyp1_6-3 |
Charles Frank SHOLE, Appellant, v. Alfred J. O’FERRALL, Assistant Attorney General; Francis B. Burch, Attorney General, J. Harold Grady, Judge, Howard L. Aaron, Judge, Appellees.
No. 14346.
United States Court of Appeals, Fourth Circuit.
April 30, 1970.
Charles Frank Shole, pro se.
Francis B. Burch, Atty. Gen. of Maryland, and William J. Rubin, Sp. Asst. Atty. Gen. of Maryland, on the brief, for appellees.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and BUTZNER, Circuit Judges.
PER CURIAM:
Upon consideration of the appellees’ motion for summary affirmance and a review of the record and briefs, we find oral argument unnecessary and summarily affirm the order of the district court dismissing the action.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. | What is the disposition by the court of appeals of the decision of the court or agency below? | [
"stay, petition, or motion granted",
"affirmed; or affirmed and petition denied",
"reversed (include reversed & vacated)",
"reversed and remanded (or just remanded)",
"vacated and remanded (also set aside & remanded; modified and remanded)",
"affirmed in part and reversed in part (or modified or affirmed and modified)",
"affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to another court",
"not ascertained"
] | [
1
] | songer_treat |
Kim Lee HUBBARD, Appellant, v. Glen R. JEFFES, Superintendent of S.C.I. at Dallas and Attorney General of Commonwealth of Pa., Appellees.
No. 80-1369.
United States Court of Appeals, Third Circuit.
Argued Oct. 17, 1980.
Decided July 7, 1981.
Gibbons, Circuit Judge, concurred and filed opinion.
Richard S. Watt, Haverford, Pa., (Argued), Gerber, Gerber & Shields, Norris-town, Pa., Peter T. Campana, Williamsport, Pa., for appellant.
Robert F. Banks (Argued), First Asst. Dist. Atty., Kenneth D. Brown, Dist. Atty., Williamsport, Pa., for appellees.
Before SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVI-TER, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
Kim Lee Hubbard appeals from a denial of his petition for federal habeas corpus. He was convicted in the Lycoming County Court of Common Pleas, Criminal Division, of second degree murder. The Pennsylvania Supreme Court twice upheld the conviction, after direct appeals in which Hubbard contended that the admission of certain evidence transgressed his Fourth Amendment rights, that the evidence at trial was insufficient to support the conviction, and that his trial and post-trial counsel had been ineffective. Hubbard once again advances these contentions in the current petition. Specifically, he claims that because the police neglected to read him the Miranda warnings before requesting the items, he did not voluntarily consent to the seizure of his boots and car. Thus, he argues, the admission of evidence obtained from this “seizure” violated the standards of voluntariness required by the Fourth Amendment. Additionally, Hubbard asserts that his trial counsel was ineffective in failing to make a timely suppression motion and in not interposing objections to allegedly inflammatory closing remarks by the prosecutor. Finally, Hubbard challenges the assistance rendered by post-trial counsel on the ground that he did not raise in post-trial motions the issue of trial counsel’s performance.
We conclude that the state court afforded Hubbard an adequate opportunity to present his Fourth Amendment claim, and that his other contentions are without merit. Accordingly, we affirm the district court’s denial of the habeas petition.
I.
The following facts were adduced in the state court. Jennifer Hill, a twelve-year-old friend of Hubbard’s sister, spent the night of October 18, 1973 at the Hubbard home. She was last seen alive at approximately 4:30 on the afternoon of October 19, shortly after leaving the Hubbard residence, entering a metallic green car. Her body was found ten days later in a nearby cornfield. An autopsy identified the cause of death as manual strangulation, and placed the time of death between 4:30 and 8:00 p. m. on October 19. A search of the cornfield revealed a boot-heel mark under the victim’s body, and two tire marks embedded in a mound of clay near the entrance to the field.
On October 31, two police officers and the district attorney went to the Hubbard residence to question members of the family. No family member was a suspect at the time. Mrs. Hubbard called the school where her son was a student and asked that he return home. When he arrived at the Hubbard home, the officers requested him to wait in another room until they finished speaking with his parents. According to petitioner’s testimony, the police then questioned him for approximately thirty to forty-five minutes out of his parents’ presence. Hubbard testified that he was not fearful during this questioning, and that he voluntarily cooperated with the police. He also stated at trial that the officers told him he was free to leave the room or to end the questioning at any time.
The officers then asked Hubbard if he owned a pair of boots and a car. Hubbard responded affirmatively and the police asked permission to inspect and to retain possession of these items. The state court found that “it was the uneontradicted testimony of the officers that they twice advised Hubbard that he had a right to refuse to consent to the requested inspection.” 472 Pa. 259, 372 A.2d 687, 694 (1977). Hubbard nevertheless turned over his boots and drove one officer back to Borough Hall and surrendered his car to him.
Subsequent police investigation revealed that the heel mark under Jennifer Hill’s body was made by one of the boots given to the police by Hubbard, and that the tire marks near the scene matched the tires on Hubbard’s car. These two items of information became a principal element in the ease against Hubbard.
At trial, one police officer asserted that Hubbard had been given the Miranda warnings prior to being questioned in his home. However, the other officer, Sgt. Peterson, denied that they read the Miranda rights, because Hubbard “was not a suspect” at the time. Upon hearing Sgt. Peterson’s recollection, Hubbard’s counsel moved to suppress the physical evidence turned over during the interview at the Hubbard home, arguing that the absence of Miranda warnings had rendered Hubbard’s consent involuntary under the Fourth Amendment. In the alternative he moved for a suppression hearing. The trial court denied the motion, ruling that it was not timely under Pa.R. Crim.P. 323(b), which requires motions to suppress evidence to be made before trial.
In a post-trial opinion, the trial judge considered the merits of the Fourth Amendment claim. He made a factual finding that Hubbard had “voluntarily surrendered his boots and car for examination.” The trial judge then ruled that “Miranda warnings are not a prerequisite to a voluntary surrender of evidence,” citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Schneckloth holds that, in distinction to the waiver standards that govern custodial interrogations, a knowing and intelligent waiver of the right to refuse a request to search is not a prerequisite to finding a voluntary consent to a search or seizure. The case indicates, however, that knowledge of the right to refuse consent bears on the question of voluntariness.
The Pennsylvania Supreme Court affirmed the denial of the suppression motion. It reiterated that the pre-trial filing requirement of Pa.R.Crim.P. 323(b) permits only two exceptions. Untimely suppression motions are allowed 1) where the opportunity to make an application to suppress did not previously exist, or 2) where “the interests of justice require.” 372 A.2d at 693.
The Pennsylvania Supreme Court rejected Hubbard’s argument that the opportunity to make an application did not exist until his lawyer learned, at trial, that no Miranda warnings • had been given at the home. Counsel was aware of all the facts pertaining to the interview, the court reasoned, and he therefore had the opportunity before trial to determine whether a suppression motion was advisable.
Reaching the merits, the Pennsylvania Supreme Court then concluded that the interests of justice did not require relaxation of the pre-trial rule in this situation, because Hubbard’s constitutional objection was not well-founded. Determining that Hubbard was not in custody at the time, that he was aware of his right to withhold consent, and that his consent was voluntary, the court held that under Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Fourth Amendment had not been violated.
II.
Our latitude in reviewing the state court proceedings is limited. 28 U.S.C. § 2254(d) directs that the factual findings of both the trial court and the Pennsylvania Supreme Court “shall be presumed to be correct.” See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Sumner holds that a habeas petitioner, in order to overcome state court factual determinations, must demonstrate “by convincing evidence” that the state proceeding was inadequate or the determinations clearly erroneous. We may also be precluded by the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), from reexamining the merits of Hubbard’s Fourth Amendment claim. In Stone v. Powell the Court held that when a state prisoner raises a Fourth Amendment violation in a habeas petition, a federal court may not consider the merits of the claim if the state tribunal had afforded the petitioner “an opportunity for a full and fair litigation” of his claim. S.Ct. 3052, 49 L.Ed.2d 1067. Id. at 494, 96
We agree with the Pennsylvania Supreme Court that Hubbard had a full and fair opportunity to present his claim to the state courts. His counsel was aware of the interview and of the need to make suppression motions before the commencement of trial. He could have reviewed statements Hubbard made to the police that might have acknowledged receipt of the warnings. He could have questioned Hubbard or his parents about whether Miranda warnings were given. Counsel had all the resources at his command to investigate and present a Fourth Amendment claim at the proper time. The failure to do so was not brought about by any restriction of the opportunity by the state courts.
An additional reason supports the conclusion that Hubbard enjoyed the opportunity contemplated in Stone v. Powell. Despite denying the request to conduct a suppression hearing in the middle of the trial, the trial court permitted counsel to explore at trial the questions of Hubbard’s custody and the voluntariness of his consent to the seizure. Moreover, the Supreme Court in Sehneekloth v. Bustamonte, supra, declared that the voluntariness of consent to a search is a factual question to be determined from the particular circumstances. The trial judge specifically found that Hubbard had voluntarily relinquished his boots and car. Since Hubbard has offered no evidence to demonstrate that the findings were clearly erroneous or that the state proceedings amounted to a denial of due process, the Supreme Court’s decision in Sumner v. Mata, supra, makes it clear that we are bound by the finding of voluntariness.
In the course of deciding whether the circumstances fell within an exception to Pa.R.Crim.P. 323(b), the Pennsylvania Supreme Court considered the merits of Hubbard’s suppression motion, and also held that the failure to give Miranda warnings did not nullify the voluntariness of Hubbard’s consent. Under these circumstances, where Hubbard had ample occasion to develop relevant evidence and received a ruling on the merits, he had a full and fair opportunity to advance his Fourth Amendment claim in the state court system.
Furthermore, on the merits, Hubbard’s Fourth Amendment argument rests on a flawed premise. The absence of Miranda warnings does not vitiate consent to a seizure of personal property, because the Miranda protections are addressed to constitutional rights that are distinct from Fourth Amendment rights. Solicitude for individual privacy is the central thrust of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Privacy rights must be balanced, however, against the interest of the community “in encouraging consent [to a search], for the resulting search may yield necessary evidence of the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.” Schneekloth, supra, 412 U.S. at 243, 93 S.Ct. at 2056. Inasmuch as the integrity of the fact-finding process may be enhanced by admitting evidence recovered from a search or seizure, the Supreme Court has not required a stringent standard for measuring voluntariness in the Fourth Amendment context. As the Court noted in Schneckloth, in refusing to impose the “knowing and intelligent waiver” standard, “almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” 412 U.S. at 237, 93 S.Ct. at 2052. The Miranda rights implicate the reliability of the truth determining process, because they apply in an inherently coercive situation and they protect the right to counsel and the privilege against self-incrimination. Knowledge of the right to be assisted by counsel and to remain silent, however, has little bearing on the voluntariness of a consent to a search. So long as the “waiver” of the right to refuse consent need not be knowing and intelligent, the person whose consent is sought need not be made aware of the full panoply of constitutional protections available to a criminal suspect who is undergoing custodial interrogation. Consequently, the absence of Miranda warnings is not dispositive of whether a person voluntarily consented to a search.
III.
Hubbard’s challenges to the effectiveness of counsel are without merit. The Pennsylvania Supreme Court concluded that trial counsel might have been amiss in not ascertaining the facts that would have formed a predicate for the suppression motion. However, the court held that this did not constitute ineffective assistance, because a timely motion would have been unavailing for the reason that the Fourth Amendment claim was without merit. 372 A.2d at 698. We concur in this conclusion. ■It follows that post-trial counsel was not ineffective in neglecting to assert trial counsel’s alleged mishandling of the suppression motion.
IV.
We also accept the Pennsylvania court’s finding that trial counsel’s failure to object to allegedly improper closing comments by the prosecutor “was born of a reasonable, calculated, and apparently successful trial strategy.” 402 A.2d at 1001. Trial counsel testified that he anticipated that the prosecutor would become shrill and alienate the jury, thereby diminishing the likelihood that the government would gain a conviction for first degree murder. The course chosen by counsel was reasonably designed to effectuate his client’s interests, and indeed, the jury failed to return the verdict urged by the prosecution, and convicted Hubbard only of murder in the second degree. Since trial counsel was not ineffective, a fortiori post-trial counsel did not render inadequate assistance when he declined to raise trial counsel’s failure to object to the prosecutor’s summation as a ground for post-trial relief.
V.
For the foregoing reasons, the judgment of the district court dismissing the petition for a writ of habeas corpus will be affirmed.
. In the first appeal, the Supreme Court vacated the judgment of sentence and remanded for consideration of the effectiveness of appellant’s post-trial counsel. 472 Pa. 259, 372 A.2d 687 (1977). Following an evidentiary hearing, the lower court held that post-trial counsel had rendered effective assistance, and reinstated the judgment of sentence. In his second appeal, Hubbard challenged the trial court’s finding that counsel had not been ineffective, and the Supreme Court affirmed. 485 Pa. 353, 402 A.2d 999 (1979).
. Although the alleged failure to give Miranda warnings is an element of Hubbard’s argument, this appeal presents only a Fourth Amendment issue concerning the voluntariness of Hubbard’s consent. We do not address any Fifth Amendment Miranda problems that may arguably lurk in the record. Hubbard asserted no Fifth Amendment claims in the state court, and the parties did not press such claims in the district court or on this appeal. Moreover, had Hubbard raised a Fifth Amendment claim for the first time in his habeas petition, we could not consider it without a demonstration that he exhausted state court remedies, or in the absence of a showing of cause for the failure to raise the claim below and prejudice. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
. The “lack of opportunity” exception to Rule 323(b) is similar to the Stone v. Powell standard permitting federal courts to review Fourth Amendment claims when the petitioner lacked a full, fair opportunity to air these claims before state tribunals. This parallel substantiates our conclusion that Hubbard had an opportunity, within the meaning of Stone v. Powell, to present his Fourth Amendment claim to the Pennsylvania trial court. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. | [] | [
0
] | songer_r_nonp |
UNITED STATES v. LANDRIEUX.
No. 5255.
Circuit Court of Appeals, Seventh Circuit.
Jan. 29, 1935.
Paul F. Jones, ,U. S. Atty., of Danville, ■111., Walter E. Ackermann, Asst. U. S. Atty., of Belleville, 111., Will G. Beardslee, Director, Bureau War Risk Litigation, of Washington, D. C., and Randolph C. Shaw, Sp. Asst, to Atty. Gen., for the United States.
Harold F. Lindley and Walter T. Gunn, both of Danville, 111., for appellee.
Before EVANS, SPARKS, and FITZ-HENRY, Circuit Judges.
FITZHENRY, Circuit Judge.
In April, 1918, Alfred F. Landrieux enlisted in the military service of the United States. He was honorably discharged in March, 1919. .While in the service he obtained a policy of war risk insurance which lapsed on May 1, 1919, by reason of nonpayment of the premium which was due April 1, 1919. His death, in January, 1922, was due to tuberculosis of the lungs. Mary Landrieux, mother of Alfred F. Landrieux, and the beneficiary named in the insurance policy, brought this suit ten years later, on January 2, 1932, in the District Court for the Eastern District of Illinois to recover the amount payable under the policy. She alleged that while the insurance was in full force and effect, and while serving in the United States Army, the said Alfred F. Landrieux became and was totally and permanently disabled, so as to render him unable to follow continuously any substantially gainful occupation and that he remained in that condition until his death.
At the close of plaintiff’s evidence and again at the close of all the evidence, the United States moved for a directed verdict. The motions were denied and, a jury having been waived, the court found for plaintiff and gave her judgment for $5,000, from which judgment the United States took this appeal.
Appellee relied upon the disability of tuberculosis to establish that insured was permanently and totally disabled on or before the lapse of the insurance on May 1, 1919. The evidence, however, was not confined to the period on or before the lapse of the policy since the subsequent condition of the insured was pertinent insofar as it tended to show whether he was totally and permanently disabled before the policy lapsed. Lumbra v. United States, 290 U. S. 551, 560, 54 S. Ct. 272, 78 L. Ed. 492. The United States contends that the evidence in the case wholly fails to support the finding of the District Court and that is the sole question here presented for consideration.
The evidence may be briefly summarized as follows: Alfred F. Landrieux was twenty-two years of age and' in excellent health when he enlisted in- the United States Army. He had previously been employed as a coal miner. While serving in France, he was exposed to inclement weather and developed a severe cough. Upon his return home, his mother, sisters, and brother-in-law testified that he had a persistent cough. On his discharge, however, he had stated that his health was good and this fact was certified by his commanding officer and by a medical officer who examined him. Insured never received treatment at any army or navy hospital and reported on sick call, only once, and then because of an earache.
Almost immediately upon returning home insured resumed work as a coal miner and worked with practically no time off from April, 1919, to November, 1919. There was evidence that he was able to do this work and draw full pay only because he was materially assisted by his co-worker, an old school chum who later married the sister of insured. At some time shortly following his return from the service, insured consulted Dr. J. M. Hickman, who found him suffering from an acute cold and bronchitis for which he treated him. Tuberculosis was not suspected and no test was made for it. The patient did not improve under the treatment. Members of his family testified that during this period he continually coughed, had to sit up to sleep, had some night sweats, and frequently vomited his breakfasts. On December 27, 1920, insured claimed compensation for a disability and stated in his application that his disability did not begin until December, 1919, or nine months after his insurance had lapsed. Various medical reports which were introduced in evidence show that while in government hospitals, approximately two years after leaving the service, insured stated to the examiners that he felt well until October, 1919, when he began to have bad colds and coughed, lost weight, felt weak. The cold continued until spring when he felt all right again. That he worked all winter and summer of 1920. That he caught cold again in November, 1920, but worked until December, 1920, when he was laid off.
In December, 1919, insured secured a position with the Ford Motor Company of Detroit and was found by the medical examiner of that company to be in good physical condition. He did machine and assembly work. There is evidence that the work was not heavy and that he sometimes came home early because he felt bad. On the other hand, he received the same pay as other men doing the same work, he was twice promoted (once automatically and once on the recommendation of his foreman), and the records of the Ford Company show that he was absent from work but little and that he received wages of $1,723.65 during employment of approximately one year.
Insured entered a government hospital at Detroit, Mich., in December, 1920, and remained in a government hospital until his death on January 3, 1922.
The only medical opinion as to whether insured was totally and permanently disabled before his policy lapsed is that contained in a “Physician’s Statement” made by Dr. Hickman to the Veterans’ Administration on May 9, 1933. Dr. Hickman answered in the negative when asked whether he believed that the condition as found by him would continue without improvement throughout the lifetime of the veteran. He also stated as the reason for his conclusion that he thought the condition would have improved as it did not appear serious at the time of treatment. In addition there is the statement of the army physician, made two weeks before the date when the policy lapsed, to the effect that he found no disability.
We think that all the evidence in this case falls far short of showing that the tuberculosis with which insured was afHicted had progressed to a stage where he could be said to be permanently and totally disabled at the time when the policy of insurance lapsed, within the requirements of Falbo v. United States, 291 U. S. 646, 54 S. Ct. 456, 78 L. Ed. 1042; United States v. Spaulding, 55 S. Ct. 273, 79 L. Ed. — ; Nicolay v. United States (C. C. A.) 51 F.(2d) 170, 173. In the latter case the court said: “It is a matter of common knowledge that many such incipient tuberculars respond readily to the simple treatment of rest and nourishment; the activity is arrested, and, while there probably always will be a susceptibility of recurrence, they are able to, and do, live out their lives following gainful occupations. On the other hand, there are some that do not respond to treatment, and their condition is incurable from the start. The burden of proof is upon the plaintiff; if his evidence leaves it a mere matter of speculation as to the permanence of his condition in May, 1919, he cannot recover.”,
The evidence, together with all the inferences which may properly be drawn therefrom, are not sufficient to form a basis for a judgment for appellee, and the trial court should have directed a verdict for appellant.
Reversed and remanded. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. | What is the disposition by the court of appeals of the decision of the court or agency below? | [
"stay, petition, or motion granted",
"affirmed; or affirmed and petition denied",
"reversed (include reversed & vacated)",
"reversed and remanded (or just remanded)",
"vacated and remanded (also set aside & remanded; modified and remanded)",
"affirmed in part and reversed in part (or modified or affirmed and modified)",
"affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to another court",
"not ascertained"
] | [
3
] | songer_treat |
Cathy A. WILLIAMS, Appellee, v. FORD MOTOR CREDIT COMPANY, Appellant, v. S & S RECOVERY, INC. Cathy A. WILLIAMS, Ford Motor Credit Company, Appellant, v. S & S RECOVERY, INC., Appellee.
Nos. 79-1911, 79-1947.
United States Court of Appeals, Eighth Circuit.
Submitted June 12, 1980.
Decided Aug. 12, 1980.
W. R. Nixon, Jr., Little Rock, Ark., for appellant, Ford Motor Credit.
Fines F. Batchelor, Jr., Van Burén, Ark., argued, for appellee, Cathy Williams.
Bradley D. Jesson, Hardin, Jesson & Dawson, Fort Smith, Ark., on brief, for S & 5 Recovery.
Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and HANSON, Senior District Judge.
William C. Hanson, Senior District Judge, Northern and Southern Districts of Iowa, sitting by designation.
LAY, Chief Judge.
Cathy A. Williams filed suit in state court against Ford Motor Credit Company (FMCC) alleging that it wrongfully repossessed an automobile in her possession which had been financed through FMCC. FMCC removed the case to federal court, answered and filed a third-party complaint against S & S Recovery, Inc. (S & S). The third-party complaint alleged that the seizure of Williams’ vehicle was made solely by S & S and that the manner and method used in the repossession was controlled by S 6 S.
A trial was conducted and at the conclusion of all the evidence, S & S’s motion for directed verdict was granted. Plaintiff’s case against FMCC was allowed to go to the jury; a verdict of $5,000 was returned in favor of plaintiff. Thereafter, FMCC made a motion for judgment notwithstanding the verdict. In response, plaintiff suggested that the court deny defendant’s motion or, if the court decided that the verdict should not be allowed to stand, that an order be entered for a voluntary nonsuit without prejudice to refile in state court. The court ordered a voluntary nonsuit without prejudice to refile and ordered nunc pro tunc that a verdict be directed in favor of S & S and against FMCC. FMCC appeals from the district court’s orders dismissing plaintiff’s complaint without prejudice and directing a verdict in favor of S & S.
Where no responsive pleading is filed, Fed.R.Civ.P. 41(a)(1) makes clear that a party may dismiss his action without order of the court. However, Fed.R.Civ.P. 41(a)(2) reads in part:
By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper.
It has long been acknowledged that the rule gives the district court equitable discretion to dismiss an action upon plaintiff’s request. Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975); United States v. Gunc, 435 F.2d 465 (8th Cir. 1970); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966). As stated in International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1946):
At most, the discretion vested in the court is a judicial and not an arbitrary one and does not warrant a disregard of well settled principles of procedure.
Id. at 780.
Here the action had been pending for over eighteen months. Discovery had been conducted on both sides, extensive pretrial preparation and proceedings had been undertaken and a two and one-half day jury trial had been held. A jury deliberated and rendered the verdict. Briefing had been completed on the motion for judgment notwithstanding the verdict. The only possible basis for the dismissal without prejudice appears to be that plaintiff feared the trial court might grant the motion. Plaintiff’s motion fails to disclose the reason for seeking the dismissal without prejudice. Plaintiff did not indicate that new evidence might be shown. Even if there were such evidence, there is no indication that plaintiff could not have presented it during trial.
This case is in a somewhat different posture than the International Shoe Co. case but the same reasoning applies here. There the defendant had moved for a directed verdict and the plaintiff then moved for a dismissal without prejudice. Here plaintiff has the verdict, but was obviously apprehensive of the court’s ruling on the judgment notwithstanding the verdict. In International Shoe Co. this court reasoned:
There seems to have been ample opportunity to prepare the case for trial and four and a half days had been consumed in taking testimony at the time plaintiff rested his case. Defendant’s motion for a directed verdict had been fully presented on its merits and submitted to the court, and the court had announced its intention to sustain the motion and direct a verdict for defendant. As the result of the proceeding the court had reached a decision on the merits and all that remained to be done was the accepting of a verdict and the entry of judgment thereon. To all intents and purposes the defendant had secured a decision that plaintiff’s action was without merit and this decision had been announced. The discontinuance of the case in such circumstances involved more for the defendant than the mere annoyance and expense of a second litigation upon the same subject matter. It deprived it of the benefit of a decision in its favor.
Id. at 780.
We find the defendant has sustained substantial prejudice by the dismissal. It will be subjected to more litigation expense and might be prejudiced on its third-party claim. If the trial court errs in granting judgment notwithstanding the verdict, plaintiff may still appeal to this court. Under the circumstances we feel the court abused its discretion in granting the motion to dismiss without prejudice at such a late time in the proceedings. Ferguson v. Eakle, 492 F.2d 26 (3rd Cir. 1974); Noonan v. Cunara Steamship Co., 375 F.2d 69 (2d Cir. 1967); International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1946); see Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975); United States v. Gunc, 435 F.2d 465 (8th Cir. 1970); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966). Cf. Western Union Telegraph Co. v. Dismang, 106 F.2d 362 (10th Cir. 1939). See generally 9 Wright & Miller, Federal Practice & Procedure §§ 2364, 2376 (1971); 5 Moore’s Federal Practice ¶¶ 41.05[1], 41.05[3] (2d ed. 1979).
As we indicated earlier, defendant impleaded S & S for indemnification. The trial court granted a directed verdict in favor of S & S at the close of the evidence. There is no need to review at this time the merits of the indemnity claim brought by defendant. Fed.R.Civ.P. 14 permits impleader of one who is or may be liable to the defendant. Federal impleader is designed to decide contingent liability as well as primary liability and the third-party claim can accelerate determination of the liability, if any, between the third-party plaintiff and the third-party defendant. As a prerequisite to that contingency, a court may grant a conditional judgment against the third-party defendant that does not become enforceable until the third-party plaintiff is otherwise determined to be entitled to judgment or payment of the judgment. See Travelers Insurance Co. v. Busy Electric Co., 294 F.2d 139, 145 (5th Cir. 1961); Wright & Miller Federal Practice & Procedure § 1451 (1971). In the present case the trial court ruled in favor of the third-party defendant before entering judgment on the original complaint. Under the circumstances, because the issue of S & S’s liability over to FMCC may be rendered moot by the ultimate disposition of FMCC’s motion for judgment against Williams notwithstanding the verdict, we decline to rule at this time on FMCC’s appeal from the judgment in favor of S & S. Instead, we dismiss FMCC’s appeal from that judgment without prejudice, and hold that the ruling of the trial court in favor of S & S should be appealed (if necessary) after judgment on the merits has been entered in the main suit.
The order of the district court dismissing plaintiff’s action without prejudice is vacated; the case is remanded and the court is directed to rule on defendant’s motion for judgment notwithstanding the verdict; the appeal by defendant on its third-party complaint is ordered dismissed without prejudice. In the event the court overrules defendant’s motion for judgment notwithstanding the verdict, defendant may move within ten days for reconsideration of the court’s ruling on its third-party complaint; upon such ruling the court should simultaneously enter judgment on the verdict and on the third-party complaint for convenience of appeal.
It is further ordered that each party shall pay its own costs on this appeal.
. Of course, the court may sever the third-party claim for separate trial and reserve ruling on it until trial on the main cause is complete. If the third-party claim is not severed the judgment on the main case is not final for purposes of review until the third-party claim is ruled upon or unless the district court files a Fed.R. Civ.P. 54(b) order. See 6 Moore’s Federal Practice ¶ 54.36 (2d ed. 1976). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. | [] | [
0
] | songer_r_state |
ASSOCIATED STATIONS, INC., a Virginia corporation, and USCO, Inc., a Virginia corporation, Appellees, v. CEDARS REALTY AND DEVELOPMENT CORPORATION, a Mississippi corporation, and Magnolia Homes Manufacturing Corporation, a Mississippi corporation, Appellants.
No. 71-1476.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1971.
Decided Jan. 17, 1972.
Thomas H. Atkins, Richmond, Va. (G. Kenneth Miller, and May, Garrett & Miller, Richmond, Va., on brief), for appellants.
George C. Rawlings, Jr., Fredericks-burg, Va., for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.
WINTER, Circuit Judge:
Associated Stations, Inc. (Associated), a Virginia corporation, leased certain property to Cedars Realty and Development Corporation (Cedars), a Mississippi corporation engaged in the manufacturing of mobile homes. After the lease expired, Associated sued to recover for damages to its property. Finding Cedars liable, the district court gave judgment in the amount of $42,858.00. We agree with the district court’s conclusion that Cedars was liable to Associated for damages to the leasehold; however, we conclude that the district court erred in using the “cost of restoration” standard in assessing damages. Therefore, we vacate the judgment and remand the case to the district court for a redetermination of damages.
I
In the fall of 1964, Associated leased to Cedars 32.46 acres, improved by two large quonset type buildings suitable for manufacturing as well as offices and storage areas, located at Doswell, Virginia. The term of the lease was from November 30, 1964 to November 30, 1967, with rent payable in monthly installments of $1,150.00. The lease provided, inter alia, that Cedars was to maintain the premises in good repair and upon termination of the lease to leave the premises in good repair, to remove all rubbish, and to return the keys to Associated.
In the latter months of 1966, Cedars decided to move its operations to Georgia and to discontinue all business at the Doswell site. This fact was known in the community because of its effect on jobs and because of two auctions held by Cedars to sell certain property. Although Cedars never formally communicated to Associated its intention to vacate the premises, Associated was aware of Cedars’ plans to discontinue its operations in Virginia.
Cedars’ closing operations occurred over a number of months. Regular production personnel were still on the site two days before Christmas, in 1966, and various supplies and materials, including a forklift truck, were still on the property in the early months of 1967. Despite the fact that Cedars claims that it intended to cease all operations, no effort was made to clear the property of rubbish, return the keys to Associated, or to restore the buildings which had been modified for Cedars’ operations to their former condition. Additionally, Cedars continued to pay the monthly rent, the checks being sent to Associated from Cedars’ office in Georgia.
Sometime around the end of January or the beginning of February, 1967, an employee of Cedars returned to the Dos-well property to retrieve the forklift truck. He noticed that an air-conditioning unit was missing from one of the buildings. He reported this fact to his superior, but this information was never conveyed to Associated. In March, of 1967, Mr. George Thomas, the president of Associated, visited the property and found that a considerable amount of vandalism had occurred. Windows, doors, and wiring, as well as plumbing and electrical fixtures, had been damaged. Holes were found in the roof and several of the heating motors and electrical switches required replacement. In addition, the special heavy-duty wiring which had been used by a previous tenant in the midfifties had been torn out and removed. Mr. Thomas made several more visits to the property and on each successive occasion he found more damage, but this damage was minor in comparison to what was originally found. The district court found that the bulk of the damage had occurred prior to Thomas’ March, 1967 visit.
After Associated regained possession of the property, it repaired some of the damage and made certain modifications of the facilities to accommodate a new tenant, Fiberlay Corporation, to which the property was let in May, 1968. Thereafter, Associated instituted this suit in the district court to recover $47,620.00 which it alleged would be the aggregate cost of restoring the property to its former condition. Of this sum, $11,900.00 was actually expended by Associated, including $2,800.00 for modifications for the new tenant. The remaining $35,720.00 was never spent. This figure included $27,500.00 to replace and repair the special heavy-duty electrical wiring required by Cedars’ predecessor. In 1970, Fiberlay Corporation purchased the property for $152,-000.00.
The district court found that Cedars was liable for the damage caused by the vandalism and awarded Associated '$43,858.00. It arrived at this sum by taking Associated’s estimated cost of repairs ($47,620.00) and reducing it by 10%. Cedars thereupon appealed.
II
Cedars contends that Associated, knowing that the property had been vacated and that vandalism was occurring, had a duty to protect the property from further damage and that having failed to do so, is barred from holding Cedars responsible for damages. Cedars’ argument need not detain us long. The district court found that Associated had not accepted a surrender of the property and that the property had not been abandoned. Even after all manufacturing had ceased, Cedars continued to use the property for storage in the early part of 1967. Cedars made no effort to comply with the provisions in the lease with respect to surrender and, throughout the period in question, it continued to pay the monthly rental. Manifestly, the district court was not clearly erroneous in finding neither an abandonment nor a surrender. It follows that Cedars was not relieved of its responsibility to protect the property.
Nor do we think that under the facts of this case Associated was required to reenter the property in order to prevent further vandalism. Where an injured party is in a position to prevent further loss to himself by a reasonable expenditure of money or effort, he is required to do so. Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281 (1948); Stonega Coke & Coal Co. v. Addington, 112 Va. 807, 73 S.E. 257 (1912). But, in determining what is reasonable, regard must be had for all the circumstances. In the present case, Cedars concedes that the property was difficult to secure. Presumably, this difficulty was as great for Associated as Cedars. In any event, there is nothing to suggest that by a “trifling inconvenience,” or even a reasonable effort, Associated could have prevented the damages. See Haywood v. Massie, supra, 49 S.E.2d at 284. Moreover, it was not until the great majority of the damage had been done that Associated was aware of the situation. We agree with the district court that Cedars has failed to demonstrate that by a reasonable effort Associated could have prevented the loss.
Ill
In assessing damages, the district court used the “cost of restoration” standard. Damages were based on the amount it would have cost to restore the property to the condition it had been in when the property was leased to Cedars. This is the general rule for determining damages to leasehold property in Virginia. See Sharlin v. Neighborhood Theatre, Inc., 209 Va. 718, 167 S.E.2d 334 (1969); Vaughan v. Mayo Milling Co., 127 Va. 148, 102 S.E. 597 (1920); Moses v. Old Dominion Iron and Nail Works Co., 75 Va. 95 (1880). In none of these cases, however, was there any contention that the cost of restoring the property to its former condition greatly exceeded any benefit to the market value of the property. Cedars has made this very assertion — that the cost of repair does exceed any benefit to the value of the property — and thus we have no controlling Virginia ruling on this point.®
The object of damages in a contract case is to restore the plaintiff to the position he would have been in had the contract not been breached. The “cost of restoration” method is one convenient way of determining the amount of damages to be awarded the plaintiff where a breach had occurred. There are, however, certain situations where this method of computing damages does not restore the plaintiff to the position he would have been in had the contract not been breached, but rather places him in a better position, thus providing him with a windfall. In those cases, courts have resorted to alternative methods of computing damages in order to insure that, as far as possible, the plaintiff neither loses nor benefits from the breach. As the court in Crystal Concrete Corp. v. Town of Braintree, 309 Mass. 463, 35 N.E.2d 672 (1941), stated:
[T]he plaintiff is not to be put in a better position than it would have been if the defendant had performed the terms of the lease. The location and character of the demised premises must be considered; and the reasonable cost of repairs, in some instances, would furnish the proper measure of damages while, in other instances, the value of the premises may be such that the incurrence of the expense for repairs would not be a reasonable, practical or economical method of dealing with the property. Such expense might greatly exceed any diminution of the fair market value of the land that was caused by the defendant’s nonperformance of the provisions of the lease.
Id. at 675.
We think the present case is similar to Bowes v. Saks & Company, 397 F.2d 113 (7 Cir. 1968). In Bowes, the lease provided that on its termination the property was to be returned to the landlords in the same condition that it had been when it was let to the lessees. The tenants in that case altered the property by building a bridge across an alley; and, at the expiration of the lease, the landlords sought to recover $115,000.00, which they claimed was the cost of removing the bridge and restoring the wall in the building where the bridge had been connected. During the term of the lease, the landlords sold the property, with settlement to be made two days after the expiration of the lease. Prior to the expiration of the lease, the tenant entered into a three-year lease with the new purchaser and thus its interest in the building continued. No effort was made by the new purchaser either to have the building restored or to recover part of the purchase price from the original landlords because of the lack of restoration. In a suit by the original landlords to recover damages for breach of the covenant to restore the premises, the court declined to permit the landlord to recover the cost of restoration because the value of the building was not diminished by the tenant’s failure to restore it, and, therefore, the landlords suffered no loss from the breach. Bowes v. Saks & Company, supra, 397 F.2d at 117; accord Dodge Street Building Corp. v. United States, 341 F.2d 641, 169 Ct.Cl. 496 (1965); Crystal Concrete Corp. v. Town of Braintree, supra.
In the absence of any controlling Virginia precedent, we think that the rule set forth in Bowes and the cases cited therein is the most appropriate for application in the present case. Included in Associated’s estimate for the cost of repairing the property was $27,500.00 to replace special heavy-duty electrical wiring which had been used last by a former tenant in the fifties. Expert testimony was to the effect that the value of the property at the expiration of the lease in 1967, assuming no vandalism, was $116,945.00, and that in 1970 when the property was sold it was valued at $134,700.00. The expert testimony was also that had the special heavy-duty wiring been replaced, its replacement would not have affected the market value of the property either in 1967 or in 1970. Thus, Associated expended $9,665.00 and was successful in selling property worth $134,700.00 for $152,-000.00, realizing thereby a profit of $7,635.00. If Associated were to recover also $27,500.00 as the estimated cost of replacement of the electrical wiring which Associated has no intention of replacing and which would have no effect on the market value of the property, Associated would realize a windfall of $27,500.00. Since, in this case, the use of the “cost of restoration” method of determining damages would probably do more than place Associated in the position it would have been in had Cedars not breached its agreement, we think the use of this method inappropriate. Rather, Associated should be permitted to recover the cost of restoration or the diminution in market value, whichever is less. In the event that diminution in market value is less, and so becomes the measure of recovery, Associated should also be permitted to recover the salvage value, if any, of the property removed by Cedars or others and not replaced by Cedars. Under this formula, Associated will not realize unjust enrichment, but it will be fully protected from any actual loss.
We have referred to the expert testimony with regard to the market value of the subject property in 1967 and in 1970. And, at one stage of the proceedings, the district court purportedly found the market value to be $131,950.00 as of an undisclosed date. But our study of the record discloses that the case was tried as to damages on the basis that Virginia law required damages to be assessed by the “cost of restoration” standard in all events without recognition of the exceptional case in which slavish devotion to the doctrine will result in unjust enrichment. Although we have concluded this case is in the latter category, we recognize that the evidence as to market value may not have been as fully developed, nor the finding of the district court as fully considered, had the relevance of market value been recognized at the outset. In remanding to the district court for reassessment of damages in the light of this opinion, we direct that the parties be given a reasonable opportunity to present additional evidence of market value, the district court being free to make findings in this regard anew.
Vacated and remanded.
. The original lessors were USCO, Inc. and Dixie Trailer Equipment Manufacturing. The name of USCO, Inc. has been changed to Usry Investment Corporation and Associated Stations, Ine. has succeeded to Dixie’s interest. Magnolia Homes Manufacturing Corporation, the parent of Cedars, was also joined as a defendant.
. The term was later amended to run from January 1, 1965 to December 30, 1967.
. Paragraphs 5 and 6 of the lease provide as follows:
5. Lessee will comply with all lawful requirements of local and state health boards, police and fire departments, County, Municipal, State and Federal authorities, and the Board of Fire Underwriters respecting the use of the premises and will make any improvements not of a structural nature required by said authorities.
Lessee will keep and maintain the premises in good condition and repair; keej) in good running order all heating and air conditioning systems, electric wiring, toilets, water pipes, water, gas and electric fixtures; replace all locks, trimmings, glass and plate glass broken during the term of this lease; unstop all water fixtures that may become choked and repair all water pipes and plumbing that may burst. Lessee will not make any alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations, changes and improvements, by whomsoever made, shall be the property of Lessors. The foregoing shall not apply to any equipment used in Lessee’s business which may be attached to the premises and Lessee may remove such equipment at the termination of this lease. It shall, however, repair and replace any and all damage done to the premises by such removal.
6. Lessee covenants to leave the premises in good repair, damages by fire, act of God, or other casualty excepted, and upon surrender of possession will have all rubbish removed, the premises thoroughly cleaned, and will deliver to Lessors all keys to the premises.
. The president had made an earlier visit to the property. On that occasion lie found that all operations had ceased, but that Cedars’ materials -were still on the property,
. Under Virginia law, mitigation of damages is an affirmative defense, and the burden of proof rests entirely on the party breaching the contract. See Foreman v. E. Caligari and Company, Inc., 204 Va. 284, 130 S.E.2d 447 (1903).
6. Green v. Burkholder, 208 Va. 708, 160 S.E.2d 765 (1968), cited by Associated for the proposition that the “cost of restoration” standard still applies, is distinguishable.
In Green, the parties assumed that damages were to be determined by the cost of restoration method and thus all the evidence went to the issue of how much it would cost the plaintiff to perform the breached contract. No evidence was submitted to show the present market value of the property or the effect the restoration might have on that market value. Nevertheless, the trial judge refused to permit the issue of damages to go to the jury because the plaintiff had not demonstrated that defendant’s breach adversely affected the value of his property.
The Supreme Court of Appeals reversed the trial court, holding that since the case was tried on the cost of repair theory and not the market value theory, “it [was too] late for the defendants to say that the proper measure of damages was the difference between the before and after value of the property.” Id. at 767. Although the court did apply the cost of restoration rule, nothing in the opinion suggests that this rule should be applied exclusively in all situations. Indeed, the court indicated that its application in that case was proper because the damages to be awarded under the rule would not be grossly disproportionate to the harm suffered and would not involve economic waste. The view we take of the instant case is consistent with the latter statement.
. Although the instrument in this case is a lease, the lease itself contains mutual covenants which are subject to contract principles. See generally, 3A Corbin, Corbin on Contracts, § 686 (1960).
. This sum was part of a larger sum of $35,720.00 which Associated never spent. By referring only to the $27,500.00 we do not mean to imply that Associated can recover the balance of the larger sum. Indeed, we do not decide what damages are to be recovered. We refer to the electrical wiring and its costs only by way of example since it was an item of considerable cost but having little or no relation to market value of the property. | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on an issue related to plea bargaining? Plea bargain includes all challenges to plea." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". | Did the court rule for the defendant on an issue related to plea bargaining? Plea bargain includes all challenges to plea. | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
4
] | songer_plea |
Gordon W. TIBBETT, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
No. 6661.
United States Court of Appeals Tenth Circuit.
July 5, 1961.
Thomas M. McComb, Jr., Denver, Colo., for appellant.
Charles N. Henson, Asst. Atty. Gen. of Kan. (William M. Ferguson, Atty. Gen. of Kan. and J. Richard Foth, Asst. Atty. Gen. of Kan., were with him on the brief), for appellee.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
PHILLIPS, Circuit Judge.
This is an appeal from an order discharging a writ of habeas corpus and remanding Tibbett, the petitioner, to the custody of the Warden.
Tibbett is confined in the Kansas State Penitentiary under a judgment of a Kansas state court, entered on December 20, 1957, sentencing him to imprisonment for a term of ten years on each of two counts of an information, each charging the offense of forgery, the sentences to run consecutively.
G.S.Kansas, 1957 Supp., 62-1304, insofar as here pertinent, reads:
“ * * * (a) If any person about to be arraigned upon an indictment or information for any offense against the laws of this state be without counsel to conduct his defense, it shall be the duty of the court to inform him that he is entitled to counsel, and to give him an opportunity to employ counsel of his own choosing, if he states that he is able and willing to do so. If he does ask to consult counsel of his own choosing, the court shall permit him to do so, if such counsel is within the territorial jurisdiction of the court. If he is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him, * * *. A record of such proceeding shall be made by the court reporter, which shall be transcribed and reduced to writing by the reporter, who shall certify to the correctness of such transcript, and such transcript shall be filed and made a part of the files in the cause. The substance of the proceedings provided for herein shall be entered of record in the journal and shall be incorporated in the journal entry of trial and judgment. * * * It is the duty of an attorney appointed by the court to represent a defendant, without charge to defendant, to inform him fully of the offense charged against him and of the penalty therefor confer with available witnesses, cause subpoenas to be issued for witnesses necessary or proper for defendant, and in all respects to fully and fairly represent him in the action. * *
The part, here pertinent, of the journal entry filed in the state court, which preceded the formal sentence, reads as follows:
“Now on the 17th day of December, 1957, * * * this cause comes on for hearing, the plaintiff appearing by Duane E. West, County Attorney, and the defendant appearing in person in the custody of the Sheriff with no attorney.
“The court is informed that the defendant does not have an attorney and the court interrogates the defendant as to whether or not he has funds with which to employ counsel and the defendant informs the court that he does not have funds with which to employ an attorney but that if counsel were appointed for him he would consult with such counsel and heed his advice. The court thereupon inquires of the defendant if he has any preference as to counsel if one were appointed for him and the defendant advises the court that he has no preference.
“Thereupon the court appoints Harrison Smith, a regular, competent, qualified and practicing attorney of the Finney County Bar to represent the defendant in this action.
“Thereafter, and on the 20th day of December, 1957, * * * this cause again comes on for hearing, the plaintiff appearing by Duane E. West, County Attorney, and the defendant appearing in person and by his attorney, Harrison Smith.
“Thereupon, the defendant informs the court, by his attorney, that he waives formal arraignment of the charges and desires to enter pleas of guilty to each count of the crimes as charged in the Information, * * * said crimes being that of forging and uttering a check.
“Counsel for the defendant informs the court that he has furnished the defendant with a copy of the Information filed in this cause and has explained the charges to defendant and discussed it with him; that he has fully advised the defendant as to the nature of the crimes with which he is charged, the penalties prescribed therefor and the possible sentence if, in fact, the defendant were upon jury trial found guilty of said offenses.
“Thereupon, the court interrogates the defendant as to his knowledge of the offenses charged, the penalties prescribed therefor, and as to defendant’s desire to enter a plea of guilty to both counts as charged. Defendant informs the court that he is well aware of the offenses, the penalties prescribed therefor, and his right to trial by jury on said charges and that it is still his desire that his pleas of guilty to the counts be accepted by the court. Thereupon the court announces that the pleas offered by the defendant are accepted and the court then inquires of defendant and of his attorney if they or either of them, have any reason to give why sentence should not now be passed upon the defendant and no reason is given.”
In his application for the writ Tibbett alleged that “the Court Reporter was not present and did not take her official notes in shorthand of all the proceedings of the Arraignment and appointment of Counsel which was had on the 17th day of December, 1957”;
That “The trial Court accepted a plea of guilty by the Court appointed Counsel for Petitioner, * * * who was appointed over * * * the objections of the Petitioner and did not have the consent of the Petitioner to enter * * * such plea”;
And that “The Court Reporter was not present and did not take her official shorthand notes of all” the sentencing proceedings “had on the 20th day of December, 1957.”
The Warden attached to his return to the writ as Exhibit A duly certified copies of the journal entry of judgment and other records in the state court and incorporated them into the return by reference.
At the hearing below in the instant case Tibbett testified that when he appeared in court on December 17, 1957, the court asked him if he “had any counsel” and that he told the court he wanted a Mr. Fleming. During the hearing in the instant case Tibbett was asked by the court, “Did you desire to employ Mr. Fleming as your counsel, * * * or did you want the court to appoint Mr. Fleming as your counsel,” to which Tibbett replied, “The court asked me if I had a preference to a counsel and I said ‘yes, sir,’ that I would like to have Mr. Fleming.” Tibbett further testified that the court then stated Mr. Fleming had more matters than he could handle and that he would appoint Harrison Smith as counsel for Tibbett. Tibbett further testified that he then stated: “Would it be asking too much of the court to call Mr. Fleming and ask him if he will accept my case,” and that the court replied that would not be necessary because he knew Fleming already had more than he could handle.
Tibbett further testified that Smith did not have Tibbett’s consent to enter pleas of guilty for him.
On cross-examination Tibbett testified that when he appeared in the state court on December 17, 1957, the judge advised him of his right to counsel. Further, on cross-examination, in response to the question of whether he asked the court to appoint Fleming or whether he wanted to employ Fleming, Tibbett testified that the state judge asked him if he “had a preference for a counsel and I said, ‘yes, sir, I would like to have Mr. Fleming.’ ”
Following his conviction and confinement under the state court sentence, Tibbett filed a petition for a writ of habeas corpus in the District Court of Leavenworth County, Kansas. His petition was denied. On appeal the order denying the writ was affirmed. Tibbett v. Hand, 185 Kan. 770, 347 P.2d 353, 355, certiorari denied 363 U.S. 854, 80 S.Ct. 1634, 4 L.Ed.2d 1736. The alleged grounds for the writ in the state court were that the official court reporter did not make and transcribe the notes of the proceedings on December 17, 1957, at which Smith was appointed counsel for Tibbett, and did not make and transcribe the notes of the arraignment, plea and sentencing proceedings of December 20, 1957.
In the opinion in Tibbett v. Hand, supra, the court said that Tibbett attached to his petition for the state court writ “A transcript prepared by the official court reporter showing the appointment of counsel for appellant in the district court of Finney County, [Kansas, which,] omitting the caption, read:
“ ‘Appearances: For the State— Duane E. West, County Attorney. For the Defendant — In Person.
“ ‘The Court: Let the record show that the defendant is without counsel; that the defendant is without funds with which to employ counsel; that the defendant desires that the Court appoint counsel to represent him in this action; that the defendant has been informed by the Court of his right to trial by a jury, and that the Court appoints Harrison Smith, a duly licensed and practicing attorney within the Thirty-Second Judicial District, as counsel for the defendant in this action.
“‘Date: December 17, 1957.’”
In its opinion the court further said:
“In his brief, among other things, the appellant charges that he did tell the court he had preference to an attorney but was denied that preference, and that he ‘never did plead guilty but was plead guilty by one Harrison Smith, Court appointed attorney who was appointed by the Court over the protests of defendant.’
“Assuming the charges set forth in the appellant’s brief are properly before the court, they are the uncorroborated statements of the appellant. This court is committed to the rule that the unsupported and uncorroborated statements of a petitioner in a habeas corpus proceeding do not .sustain the burden of proof or justify the granting of his writ where the judgment rendered is regular on its face and entitled to a presumption of regularity and validity. Cunningham v. Hoffman, 179 Kan. 609, 611, 296 P.2d 1081; and cases cited therein.”
The court further set forth the journal entry of the sentencing court referred to above and stated that it fully disclosed the proceedings in the sentencing court on December 17 and December 20, 1957. The court held that even though the record made by the court reporter of the December 17, 1957, proceedings was insufficient and that the court reporter made no record of the December 20, 1957, proceedings, that in view of the record of the proceedings set forth in the journal entry, the failure of the court reporter was a mere irregularity which was not sufficient to vitiate the proceedings, and quoted with approval from the opinion in Goetz v. Hand, 185 Kan. 788, 347 P.2d 349, certiorari denied 362 U.S. 981, 80 S.Ct. 1068; 4 L.Ed.2d 1016, decided the same day as the Tibbett case, the following:
“ ‘In a criminal action where counsel is appointed to represent an accused who is sentenced to imprisonment upon his plea of guilty, a judgment record showing full compliance with the jurisdictional requirements of G.S.1957 Supp., 62-1304, (specified in Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225), insofar as applicable, is prima facie evidence to prove that the primary rights of the accused to a trial have been safeguarded as provided in the statute, and the uncorroborated statements of the accused in a subsequent habeas corpus action are insufficient to overcome this evidence. The failure of the court reporter to be present and make a record of the proceedings under such circumstances is merely an irregularity which is not sufficient to vitiate the proceedings.’ ”
We conclude, therefore, that the failure of the court reporter to comply fully with the provisions of § 62-1304, supra, did not, under the law of Kansas, deprive the state court of jurisdiction.
The question remains whether the failure of the court reporter to take verbatim notes and make a complete transcript of the proceedings of December 17, 1957, and the failure of the court reporter to take notes or make a transcript of the proceedings of December 20, 1957, when in some criminal cases in the State of Kansas notes of the proceedings and transcripts thereof are made and provided in strict accordance with the requirements of § 62-1304, supra, deprived Tibbett of the equal protection of the laws under the Fourteenth Amendment.
We are of the opinion the question must be answered in the negative for four reasons: First, because there was available to Tibbett the journal entry of trial and judgment containing the substance of the proceedings provided for in § 62-1304, supra, which was duly entered of record; Second, because, there being absent any charge of fraud, such journal entry record of the proceedings imported verity and was not open to challenge in a collateral proceeding by parol testimony; Third, because Tibbett’s own testimony shows that he was not denied counsel of his own choosing, but was merely denied appointment by the court of counsel which he preferred, for adequate reasons given by the trial court; and Fourth, because Tibbett, when the court-appointed counsel entered pleas of guilty for him, stood by and raised no objections, and, immediately prior to the imposition of sentence, the state court, among other things, interrogated Tibbett with respect to his knowledge of the offenses charged, the penalties prescribed therefor, his right to trial by jury, and his desire to enter a plea of guilty to each count, and Tibbett informed the court that he was well aware of the offenses, the penalties prescribed, and his right to trial by jury and that it was still his desire that his plea of guilty to each count “be accepted by the court.”
At the hearing below Tibbett admitted that at the proceedings on December 17, 1957, the state court advised him of his right to counsel for his defense and his testimony in the instant case did not refute the recital in the transcript of the proceedings filed by the court reporter and the import of the recitals in the journal entry that Tibbett requested the court to appoint counsel for him and that it was in the course of the appointment of counsel for Tibbett by the court that the court asked him if he had any preference as to counsel. On the contrary, his testimony tended to corroborate the recitals in the court reporter’s transcript and the journal entry. There could have been no reason for the inquiry as to Tibbett’s preference if the state court was not about to appoint counsel for Tibbett. Two times in his testimony below, Tibbett was asked whether he desired to employ Fleming as counsel or whether he desired the court to appoint Fleming as his counsel, and both times he evaded a direct answer and said that the court asked him if he had a preference as to counsel and he replied he would like to have Mr. Fleming. The constitutional guaranty to be represented by counsel does not confer upon the accused the right to compel the court to appoint such counsel as the accused may choose. On the contrary, the selection of counsel to be appointed for an accused rests in the sound discretion of the court.
The fact that Tibbett stood mute when his court-appointed counsel entered pleas of guilty for him in the state court and the fact that he failed to deny at the hearing in the instant case that in response to the inquiries of the state court immediately prior to imposition of sentence he has stated he was “well aware of the offenses, the penalties prescribed therefor and his right to trial by jury” and that it was “still his desire that his pleas of guilty to the counts be accepted by the court,” as recited in the journal entry of judgment, preclude a contention by Tibbett that the pleas of guilty entered for him by his counsel were without his consent. Moreover, there was a presumption that in entering pleas of guilty, Tibbett’s court-appointed counsel acted properly and with Tibbett’s consent.
Accordingly, we conclude that if the court reporter had made a complete record of the proceedings of December 17 and December 20, 1957, and had transcribed the same, on this record there is no basis for a contention that such transcript would have contradicted the facts recited in the transcript which the court reporter did make, or the recitals of fact set forth in the journal entry judgment filed in the state court.
We conclude that the record of the proceedings of December 17 and December 20, 1957, set forth in the state court journal entry, which was available to Tibbett, fully met the requirements of the Fourteenth Amendment that he be accorded the equal protection of the laws.
Affirmed.
. The journal entry was approved by Smith, as counsel for Tibbett, and by the County Attorney.
. See Thomas v. Hunter, 10 Cir., 153 F.2d 834.
. Tibbett further testified that when the pleas of guilty were entered he did not say anything.
. Griffiths v. United States, Ct.Cl., 172 F.Supp. 691, certiorari denied 361 U.S. 865, 80 S.Ct. 128, 4 L.Ed.2d 107; Schuble v. Youngblood, 225 Ind. 169, 73 N.E.2d 478; People v. Fanning, Co.Ct., 73 N.Y.S.2d 68; State v. Rinaldi, 58 N.J.Super. 209, 156 A.2d 28; State v. Whitaker, Mo., 312 S.W.2d 34.
. Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 876, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case? Answer with a number. | [] | [
1
] | songer_numappel |
Magdalena GARCIA, et al., Plaintiffs-Appellants, v. RUSH-PRESBYTERIAN-ST. LUKE’S MEDICAL CENTER, et al., Defendants-Appellees.
No 80-2087.
United States Court of Appeals, Seventh Circuit.
Argued May 13, 1981.
Decided Sept. 30, 1981.
Stephen G. Seliger, Raymond G. Romero, Mexican American Legal Defense and Ed. Fund, Chicago, Ill., for plaintiffs-appellants.
Richard H. Schnadig, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendants-appellees.
Before SWYGERT, Circuit Judge, NICHOLS, Associate Judge, and BAUER, Circuit Judge.
The Honorable Philip Nichols, Jr., Associate Judge of the United States Court of Claims, is sitting by designation.
NICHOLS, Associate Judge.
This employment discrimination case comes before the court on plaintiffs’ appeal of the June 30, 1980, judgment of the United States District Court for the Northern District of Illinois. The Honorable George N. Leighton held that defendants Rush-Presbyterian-St. Luke’s Medical Center, James A. Campbell, and Charles A. Freeman were entitled to judgment in their favor against plaintiffs as to all individual and class claims. We affirm.
In the district court plaintiffs Magdalena Garcia, Fernando Romero, and Victoria Perez, who were Latinos, sued on their own behalf and on behalf of other Latinos similarly situated in a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. Plaintiffs’ complaint alleged claims for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981.
The district court determined that the evidence did not establish by the standard of proof required by law that the plaintiffs individually or as a class were subjected to any disparate treatment or were the object of any disparate impact because of their race, color, national origin, or because any of them were Latinos. The district court’s definition of “Latino” was “any Spanish surnamed person or individual of Hispanic ancestry.” But he excluded Filipinos. It is asserted and denied that the district court was confused about the composition of the aggrieved class. This was potentially important because of the importance of statistical evidence and the noninclusion of blacks, the largest racial minority in the community, as members of the grievant cláss. In light of our other conclusions, clearing up any semantic confusion in this regard is not needed.
The district court issued a detailed and well reasoned decision in which it determined that defendant Rush’s hiring and transfer practices were and had always been racially neutral. In rendering its decision the court considered extensive evidence submitted during 18 days of trial without a jury, from May 27 to June 23, 1980. At trial, plaintiffs called 13 witnesses, used excerpts from four depositions, and offered and had received in evidence 70 exhibits. Defendants called 11 witnesses, offered and received in evidence 102 exhibits and then on rebuttal plaintiffs offered three additional exhibits. The reasoning of the court will be set forth herein where it has been challenged by plaintiffs.
Succinctly, plaintiffs claims were and are for alleged employment discrimination. More specifically the claims of the individual plaintiffs against defendants below were:
1. Discrimination against plaintiff Magdalena Garcia by harassment, discipline, and discharge because of her race or national origin in violation of Section 703 of Title VII, 42 U.S.C. § 2000e-2.
2. Discrimination against plaintiff Victoria Perez in denying her transfer to the position of Lab Liaison Technician at Rush in violation of Title VII and 42 U.S.C. § 1981. She also alleged discrimination and retaliation by her discharge on August 17, 1976, in violation of Sections 703 and 704(a) of Title VII, 42 U.S.C. § 2000e-2 and § 2000e-3(a) and in violation of 42 U.S.C. § 1981, but at the conclusion of plaintiffs’ evidence, plaintiffs’ counsel withdrew this discharge claim under both statutes.
3. Purposeful and intentional discrimination against plaintiff Fernando Romero by Rush’s refusal to hire him because he was a Latino, in violation of 42 U.S.C. § 1981.
Plaintiffs do not appeal from the trial court’s findings of fact and conclusions of law concerning any of the individual claims of plaintiffs Garcia and Perez, and no issues respecting them remain in the case. Only the legal standard applied to the facts regarding plaintiff Romero are challenged.
The class claims against defendants under Title VII of the Civil Rights Act of 1964 and under 42 U.S.C. § 1981 were:
1. Discrimination in refusing to hire qualified Latinos.
2. Making discriminatory assignments to Latino employees.
3. Utilizing discriminatory performance standards for Latino employees with respect to promotion, assignment, and tenure.
4. Discriminating against Latino employees by restraining and coercing them in the exercise of their rights to complain of discriminatory employment practices.
Plaintiffs do not challenge the trial court’s findings and conclusions that defendant did not discriminate against plaintiffs in assignments, or in utilizing performance standards for promotion, assignment, and tenure, or by restraining and coercing plaintiffs in the exercise of the rights to complain of discriminatory practices. The issues brought forward on appeal are comparatively few. Plaintiffs challenge the district court findings regarding only defendant’s hiring practices, and plaintiff Romero’s claim under 42 U.S.C. § 1981.
I
Initially though, plaintiffs argue that this case should be reversed and remanded because the trial judge adopted the proposed findings and conclusions submitted by defendants. It does appear he used in haec verba many proposed findings that defendants submitted, or altered and rearranged them only in rather immaterial particulars. But a party cannot be penalized for the persuasive nature of his submissions. We do prefer to see findings that reflect an effort of composition by the trial judge. They furnish evidence that he really worked over and analyzed the fact issues. He must avoid giving the impression that he first decided who should win, and then made the findings that would best support the favored litigant on appellate review. Here, however, the record does contain other evidence of the concern Judge Leighton displayed with the fact issues. For instance, he requested additional evidence to verify the probativeness of defendants’ statistical evidence. See infra.
As plaintiffs correctly point out, this court has criticized the practice of adopting the prevailing party’s findings verbatim and without change. But such adoption does not invalidate the findings, although they may therefore be more critically examined. Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 731 (7th Cir. 1979); and FS Services, Inc. v. Custom Farm Services, Inc., 471 F.2d 671, 676 (7th Cir. 1972). The proper standard of appellate review of the trial court’s findings of fact is that the findings will not be disturbed unless “clearly erroneous.” Fed.R.Civ.P. 52(a), Title 28 U.S.C.; Hanock v. Eck, 183 F.2d 632, 635 (7th Cir. 1950) and Tornello v. Deligiannis Brothers, Inc., 180 F.2d 553 (7th Cir. 1950).
Plaintiffs have failed to establish any error on the part of the district court. Rather than showing that the district court findings were clearly erroneous as they must on appeal, with specifics as to what findings were erroneous and how, plaintiffs set forth summaries of the evidence they submitted below (complete with percentage statistics and a graph along with what is purported to be a summary of defendants’ data and expert evidence). But the test on appeal is not which party had the better evidence below. Plaintiffs’ position therefore cannot prevail. As this court explained in a previous employment discrimination case with respect to findings of expert statistical evidence—
On appeal the defendants seek to challenge the district court’s conclusions by relitigating the probativeness of the evidence introduced and rejected at trial. The findings of the trial court with respect to this evidence — statistical studies and the testimony of expert witnesses— are perfect examples of subsidiary facts to which the clearly erroneous standard applies. As this court has observed, “[t]he resolution of such evidentiary conflicts is the precise function for which our trial courts sit [and it] is only necessary for us to determine on review whether the findings supporting the judgment have an evidentiary basis. * * *. [citations omitted.] We should reverse the district court’s findings only if, with due deference to the trial judge’s resolution of conflicting evidence and to his determination of credibility, we are left with the definite and firm conviction that a mistake has been committed. * * * [citations omitted.]
United States v. City of Chicago, 549 F.2d 415, 429-30 (7th Cir.), cert. denied sub nom., Adams v. City of Chicago, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). The district court’s findings now before us are supported by substantial record evidence.
Plaintiffs do not contest the vast majority of the trial judge’s findings and conclusions, yet complain that the trial judge did not consider the case with a “disinterested mind.” This argument is weak. Plaintiffs cite two cases as “similar” to their own, Equal Employment Opportunity Commission v. United Virginia Bank/Seaboard National, 555 F.2d 403 (4th Cir. 1977); United States v. Commonwealth of Virginia, 569 F.2d 1300 (4th Cir. 1978). But these cases do not support plaintiffs’ position. In Equal Employment Opportunity Commission v. United Virginia Bank, supra, for instance, the appeals court reversed the district court because the district court’s findings of fact were phrased in “broad conclusory terms and did not include any subsidiary findings which would give appropriate support to the court’s conclusory findings.” 555 F.2d at 405. In addition, the district court in that case made no analysis of statistical information or the weight to be accorded it, it engaged in no inquiry into the racial pattern of the community population, and it did not review the employment records of defendant. In United States v. Commonwealth of Virginia, supra, the district court issued no written findings of fact at all. As will be shown herein, there is not even a remote similarity between the findings and conclusions written and adopted by Judge Leighton and those in the two Fourth Circuit cases cited by plaintiffs.
Plaintiffs argue also that the clearly erroneous standard is not workable here where the trial court’s findings are conclusory and argumentative. The excerpted findings of the trial court that follow, demonstrate conclusively that the trial judge carefully analyzed the statistical information submitted to him, critically reviewed the expert reports of both sides, and then made subsidiary findings to support his final determination.
II A
The relevant findings below respecting class claims which are challenged on appeal follow.
Rush is a not-for-profit corporation which operates both a medical university and an 864-bed tertiary care hospital. A “tertiary care hospital” is a highly specialized medical facility [which provides] * * * —sophisticated diagnostic services and treatment which normally can[not] be provided by secondary and primary care facilities. [It is located in Chicago.]
Rush’s delivery of health care, research activities, and education of physicians, nurses and health scientists and administrators requires a highly specialized level of skill and training among most employees in its workforce.
Rejection by Rush of those Latinos who, the evidence shows, were not hired, resulted from the two most common [non-discriminatory] reasons on which an employer can rely to reject a job applicant: an absolute or relative lack of qualifications. [In 1979 the faculty of the various Rush Colleges and its registered nurses were 1,800 persons and 28 percent of Rush’s workforce. The managerial, professional, and technical employees that year were 3,994 persons, 62 percent of the workforce.]
Rush requires employees in nearly all job classifications to speak and read English in some fashion. Plaintiffs contend that this requirement results in unlawful discrimination against Latinos. They did not produce evidence, nor is there any in the record to show that Latinos were excluded from Rush’s workforce at a greater rate than persons of other national origins, by virtue of such requirement standing alone, or in connection with other employee selection procedures. The requirement that an employee speak and read English in some fashion did not have an adverse impact on Latinos; nor were Latinos treated differently than all other persons with regard to the requirement. The ability to speak and read some English is a necessary, job-related requirement for virtually every job in this highly sophisticated medical care institution.
This court further comments: Thus some facility in English is at Rush a Bona Fide Occupational Qualification (BFOQ). The question of language in a large modern hospital in an urban area is, if we may interject some judicial notice, difficult, and anyone who has been so lucky or unlucky as to be a patient in such an institution probably has had some personal experience with it. Such an institution is apt to be somewhat of a Tower of Babel. We would suppose that English is most likely to be the common language of a majority of patients and staff alike, and, therefore, a deficiency in English is the language deficiency most likely to be troublesome with an employee of a hospital located well in the interior of a supposedly English speaking nation. There would be many patients not fluent in English, who would need someone able to converse with them in their own native language. Plaintiffs allude to this question in their brief without drawing any clear conclusion from it. A random introduction of non-English speaking persons into the hospital staff would probably not contribute to meeting this need, and it is not suggested that it is required by Title VII, or that in general Title VII requires hospitals to be indifferent to the communication needs of their patients, or any of them. At any rate, the language qualification is clearly within the discretion of the hospital authorities and plaintiffs do not argue otherwise. It impinges equally on other foreign language users as on the Hispanies.
Returning to the findings—
Rush has had, and has maintained, an equal employment opportunity policy in form and substance. Long before this controversy with the plaintiffs, it has at all relevant times, publicized its equal employment opportunity policy to the public generally, to its supervisory executives and all employees through employee handbooks, bulletins, and personnel policy and procedure manuals. This policy has been published and disseminated for many years in the Medical Center’s employee newsletters, orientation programs and seminars. Rush has publicized and implemented its grievance procedures for both union and nonunion personnel as a means of correcting any supervisory action shown to be unfair or inconsistent with the Center’s declared equal employment opportunity policy. Union contracts covering approximately 1,000 employees contain clauses prohibiting discrimination on the basis of race, color, national origin, sex, and religion as covered by Title VII. Latino employees, including those mentioned by Garcia and the witness Cruz, used the grievance procedures; and, in several cases, obtained favorable dispositions thereby. These facts, shown by unrebutted evidence, undermine the unproved allegations in plaintiffs’ complaint that Rush engaged in a pattern or practice of discrimination against Latinos employed at the Medical Center.
The affirmative action program is consistent with the declared policy of equal employment opportunity that Rush has administered for many years. Consistent with its declared policy, and its affirmative action programs, Rush has made efforts to recruit and increase the availability of Latinos and other minorities for its workforce, both before and after this suit was filed. These efforts include the Inroads Program in 1973 and 1974, the Boy Scout Explorer Program from 1971 to 1974, the Youth Motivation Program from 1974 to the date of the trial in this case, Health Care Career Opportunity Program from 1978 to the date of trial, the Secretarial and Clerical Opportunities Program from 1975 to the date of trial, and other continuing CETA programs for students and adults. Some participants in these programs have become full time employees of Rush. For many years prior to and after the filing of this complaint, Rush recruited employees through predominantly Latino referral agencies such as Gads Hill and Ser. After this suit was filed, Rush voluntarily participated in a formal recruitment program specifically directed to Latinos. Rush also has extensively recruited at schools and universities whose student bodies are predominantly Latinos and Negroes. Rush advertises its equal opportunity policy, and its job openings in Spanish periodicals. It maintains a tuition reimbursement and continuing education program for all employees which includes courses in English and Spanish. At all relevant times, Rush has provided health care programs for the benefit of Latinos and other minorities in the surrounding west side Chicago area; and it has published a Spanish language patient handbook and a brochure on its community relations program in Spanish. Rush has actively responded to the special needs of Latinos in its workforce and in the community; this response is inconsistent with the allegations contained in plaintiffs’ complaint that Rush’s employment practices were motivated by discriminatory purpose.
The testimony of the individual plaintiffs does not support the class claims because none identified or was able to testify about any hiring, employment, assignment, promotion, transfer, or discharge policy or practice of Rush which disparately treated or disparately impacted Latinos because of their national origin under Title VII, or their race under § 1981, or because they had engaged in any protected activity in opposition to allegedly discriminatory employment practice by Rush.
Plaintiffs called two expert witnesses: Dr. William G. Fischer, a clinical psychologist; and Dr. Wayne J. Villemez, a University of Illinois Assistant Professor in the Department of Sociology. It was Dr. Fischer’s opinion that the qualifications or requirements set forth in certain Rush job descriptions were deficient because some were too vague, others were too high for the job, and still others permitted subjectivity and potential for bias because no qualifications as such were contained thereon. Dr. Fischer could not cite any authority, or authorities in the context of a Title VII or § 1981 discrimination issue to support any of his opinions or analyses with respect to Rush’s job descriptions. He reviewed 950 to 1,000 Rush job descriptions and compared them to four published works, at least two of which contained narrative descriptions of potentially similar jobs. He admitted on cross-examination that he had not consulted any of the three most current sources until after he had already formed his opinions and made his characterizations based on a 1966 supplement to the United States Department of Labor’s Dictionary of Occupational Titles, a publication which contains no comparative descriptions at all. Dr. Fischer’s testimony was neither meaningful nor probative of plaintiffs’ claims.
Dr. Villemez failed to establish any foundation that the definitions of availability used in his reports measured the availability of Latinos who were qualified for the jobs in question at Rush. He conceded that his availability estimates were based on personal assumptions only, and that he did not know whether the census data he used in estimating Latino availability for jobs at Rush were based on comparable jobs in terms of skill requirements and qualifications. Dr. Villemez chose national employment data for the hospital industry as the most appropriate “proxy population” for the professional and technical jobs at Rush; he did not know whether the jobs designated as professional and technical at Rush were comparable in terms of skill requirements and qualifications.
Defendants’ expert was Dr. George R. Neumann, Assistant Professor, Graduate School of Business, University of Chicago. Dr. Neumann’s report, prepared by him, and described in his testimony, is a more probative study.
First, he compared the representation of Latinos in specific skilled and licensed jobs at Rush with their availability as measured by their representation in identical jobs in the national health field labor force. Second, he divided the Rush workforce into three groupings according to broad definitions of skill requirements for the various jobs within each group, and compared the Latino representation in these occupational groups with their availability as measured by a weighted average of the City of Chicago and the Chicago Standard Metropolitan Statistical Area (SMSA) census data. In all comparisons, Dr. Neumann found no evidence of any statistically significant underemployment of Latinos or adverse hiring of Latinos at Rush. •
There is no direct or statistical evidence to prove plaintiffs’ class allegations. Even if plaintiffs made out a prima facie case, the [district] court finds that Dr. Neumann’s report and testimony rebut any inference of discrimination which can be drawn from the evidence. The burden of persuasion in proving classwide discrimination remains on the plaintiffs; and from all the evidence adduced at trial, the court finds plaintiffs, have failed to establish any such discrimination by defendants.
A critical examination of the findings reveal that they are not argumentative or conclusory and are not clearly erroneous.
II B
In the proceedings below, both sides submitted statistical evidence to support their respective positions. The statistical evidence relied upon by plaintiffs were “EEO-1” Reports, which are reports submitted by defendant Rush every year to the Equal Employment Opportunity Commission. EEO-1 Reports are workforce data summaries that contain a breakdown by sex and ethnic group of defendant Rush’s employees. These summaries had been prepared from records made in course of hiring employees, and represented the employees’ own representations or the conclusions of personnel officers, as to the employees’ race. Defendants relied on COMSHARE summaries which were prepared by Comshare Inc., a time-sharing computer services company. The COMSHARE summaries were workforce data taken from defendant Rush’s year-end employment information for 1972 to 1979, with adjustments attacked by plaintiffs as tainted by subjective considerations in the minds of defendants’ officers. COMSHARE data was coded to show the Latino composition of defendant Rush’s workforce.
The court’s findings set forth above show that the trial judge reviewed both sets of evidence and then found defendants’ testimony and statistical information more probative. Plaintiffs now challenge that determination and argue that their EEO-1 Reports should have been accepted and that defendants’ COMSHARE data was erroneous.
By inference from the EEO-1 Report submitted by plaintiffs, there was a statistical disparity between the number of Latinos in defendant Rush’s workforce and their availability based on 1970 census data. But the district judge found as a fact that the EEO-1 Reports did not accurately portray the number of Latinos in the workforce. This statistical analysis is not sufficiently probative for the further reason that it fails to compare the number of Latinos in defendant Rush’s workforce with the availability of Latinos who were qualified for jobs at Rush, which delivers specialized health care, and where English is a BFOQ.
Next plaintiffs assert that defendants’ COMSHARE data is erroneous because it includes persons with Spanish surnames who are not Hispanic and thereby inflates the number of persons designated as Latinos in Rush’s workforce. Plaintiffs complain that “Latino” was not defined by the district court as referring to a person of “Hispanic ancestry or ethnic background.” He would allow, they say, persons of no such ancestry or background to be classed as Latinos. Yet, in deciding whether the suit should proceed as a class action the court, “over defendants’ objections to class certification accepted plaintiffs’ definition of ‘Latino’ as being ‘any Spanish surnamed person or individual of Hispanic ancestry residing in the City of Chicago.’ ” Thus the COMSHARE data followed the district court’s class definition of Latino by including persons either of Spanish surname or Hispanic ancestry. If this was a trap for plaintiffs, they laid it themselves.
The district court was persuaded by defendants’ expert Dr. Neumann who noted that while not all Spanish surnamed persons are Hispanic, many persons who do not have Spanish surnames are of Hispanic ancestry and that the net effect of the two would cancel out the over or under count. To test the accuracy of the COMSHARE summaries, the district court requested that defendant Rush submit a sampling of the employment files of persons designated as Latinos. All 12 files examined met both the Spanish surname and Hispanic ancestry measures of being a Latino. We therefore hold that the properly admitted COMSHARE data supported the conclusions reached and was correctly relied upon by the district court.
We find very damaging to plaintiffs’ position the fact that not only was their statistical evidence insufficient, but that they failed completely to come forward with any direct or anecdotal evidence of discriminatory employment practices by defendants. Plaintiffs did not present in evidence even one specific instance of discrimination. There was no individual to testify how defendant discriminated against him. A case often cited by plaintiffs to support their position is International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In that employment discrimination case, the United States Supreme Court found that the plaintiff had the initial burden of making out a prima facie case of discrimination by the preponderance of the evidence. And in meeting their burden, the plaintiff in Teamsters presented in addition to reliable statistics, the “testimony of individuals who recounted over 40 specific instances of discrimination,” to bolster their statistical evidence. Id. at 338, 97 S.Ct. at 1856. There was also no showing how Rush discriminated, if it did, comparable to the use made of the police examinations in United States v. City of Chicago, supra. There were only petty grievances, such as that personnel officers did not return the phone calls of employment agencies. Since plaintiffs here did not make an adequate showing of either statistical or direct evidence, they failed to make out a prima facie case and so the district court correctly found that plaintiffs failed to prove any of their class allegations. Plaintiffs’ arguments about when the burden shifts to defendants are irrelevant since plaintiffs never met their initial burden.
We may remark in passing that this appeal would be close to the frivolous and probably never would have been filed, except for the strange fact that in the community, in the decade before action brought, the percentage of Latinos in the population rapidly grew, while according to the EEO reports, their percentage in the employ of the hospital actually declined. If the EEO statistics understated, the error might be expected to be consistent from year to year. This is about all plaintiffs have, and naturally they harp on it. It proves, according to them, that the COM-SHARE data is false and should have been excluded. There are, however, so many innocent possible explanations it is impossible to disregard the other relevant evidence in the case when these explanations are not persuasively eliminated. For example, there could have been a change in the Latino’s perception of how it would be advantageous to him to characterize his race. Though not Filipino, a Latino could be of Mexican or of Caribbean origin, or a Spaniard from Spain, very disparate ethnic and cultural groups though lumped together by the EEOC. They constitute a minority among all the minorities. Certainly, it must be far easier to establish discrimination against all minorities than it is to accuse the employer of singling out one, or here rather three minorities, for discrimination from which other minorities are exempted. How could a great nonprofit public service body be shown to have a motive for such discriminatory discrimination? It is clear the plaintiffs undertook a difficult task, for which the simplistic use of statistics, acceptable perhaps in ordinary discrimination litigation, is insufficient here. To mulct in damages a body such as Rush, it is not sufficient to raise unanswered questions and they do not constitute in and of themselves a prima facie case. Defendants’ officers certainly thought the EEOC statistics misleading as to the true extent of Latino employment, and that was why they resorted to COMSHARES. There was no evidence they entertained that thought in bad faith or for self-serving reasons, and the district judge entertained it too.
The district judge thought the various government agencies had promulgated “conflicting and confusing definitions of Hispanic persons.” An amicus brief by the Mexican American Legal Defense and Educational Fund, Inc., disputes this and argues that the government definitions are consistent. It is not necessary to pass on this issue and we do not do so except to remark that much that is said in this field of discourse is Orwellian.
III
Finally, plaintiffs argue that the trial court used an incorrect legal standard in deciding against the individual claim of plaintiff Fernando Romero. Romero applied but was not hired as a maintenance mechanic in Rush’s physical plant department, and a white applicant was hired. Plaintiffs say that Romero was discriminated against and not hired because he is Latino. The statistics were against Romero inasmuch as the workforce in the physical plant department was well integrated, and the hires at about the date of Romero’s application included one Latino, two blacks, and seven whites.
Romero claims he established that “he was a member of a minority, that he applied for the position of maintenance mechanic, that he was qualified for the job * * *, and that a white man * * * was hired instead” and thereby proved his prima facie case. But that showing is insufficient unless the circumstances give rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The district judge found no such inference possible in view of several factors: the above statistics, Rush’s general policy, and the unusual courtesy, and consideration shown Romero by his own testimony.
The next erroneous argument made by plaintiffs was that defendants were required to show that the person hired was more qualified than Romero and absent such a showing, that plaintiff Romero is entitled to a finding in his favor. Burdine rejects the requirement that the employer who hired a nonminority applicant instead of a minority one, show the former was better qualified.
IV
Therefore, for the reasons above stated, the district court’s decision is
AFFIRMED. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. | Did the interpretation of federal statute by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_fedlaw |
John J. McCARTHY, Plaintiff-Appellant, v. Mr. MADDIGAN, Dr. Perry; Dr. Walter; Dr. Delmuro, Defendants-Appellees.
No. 90-3112.
United States Court of Appeals, Tenth Circuit.
April 22, 1992.
Before McKAY, Chief Circuit Judge, and MOORE and BRORBY, Circuit Judges.
ORDER
Mr. McCarthy, a federal prisoner, filed a Bivens — type civil action seeking monetary damages for the alleged deliberate indifference to his serious medical needs. The district court, relying upon Brice v. Day, 604 F.2d 664, 666-68 (10th Cir.1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1045, 62 L.Ed.2d 772 (1980), dismissed the claim without prejudice as Mr. McCarthy failed to demonstrate he had made use of the administrative review process provided by the Bureau of Prisons. We affirmed, being bound by our precedent in Brice. See McCarthy v. Maddigan, 914 F.2d 1411 (10th Cir.1990).
The Supreme Court reversed this court’s decision holding that exhaustion of the Bureau of Prison’s administrative procedure is not required before a federal prisoner can initiate a Bivens action solely for monetary damages. See McCarthy v. Maddigan, — U.S. —, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992).
We therefore recall our mandate and reverse the order of the district court and remand this case to the district court for such further proceedings as may be just and proper in accordance with the decision of the United States Supreme Court.
The mandate shall reissue forthwith.
. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. | Is the opinion writer identified in the opinion, or was the opinion per curiam? | [
"Signed, with reasons",
"Per curiam, with reasons",
"Not ascertained"
] | [
1
] | songer_opinstat |
WESTERN UNION TELEGRAPH CO. v. WILCOX et al.
No. 10555.
Circuit Court of Appeals, Eighth Circuit.
Aug. 7, 1936.
Ralph T. Finley and Lon O. Hocker, both of St. Louis, Mo. (James C. Jones and Frank H. Sullivan, both of St. Louis, Mo., Francis R. Stark and Robert C. Barnett, both of New York City, and Jones, Hocker, Gladney & Jones and Sullivan, Reeder & Finley, all of St. Louis, Mo., on the brief), for appellant.
James L. HornBostel, of Jefferson City,. Mo. (Roy McKittrick, of Jefferson City, Mo., on the brief), for appellees.
Before STONE, WOODROUGH, and THOMAS, Circuit Judges.
WOODROUGH, Circuit Judge.
The Western Union Telegraph Company brought this suit in equity against members and the secretary of the Missouri state tax commission and the state auditor to enjoin the certification to the various counties in the state for taxation purposes of an alleged excessive and discriminatory assessment of the company’s property as of June 1, 1932. Injunction was denied after trial of the issues in the District Court, and the company has appealed. Diversity of citizenship and jurisdictional amount in controversy were shown; also want of adequate remedy at law; and no question is presented here as to the form of the suit or the sufficiency of the petition.
It appears that under the laws of Missouri the state tax commission is charged with the duty of originally assessing for taxation the property of telegraph companies such as the plaintiff on the basis of its true value in money in the same proportion as other property is assessed; said assessment being subject to equalization by the state board of equalization. The telegraph company pleaded that, although the true value of its property within the state did not exceed the sum of $4,300,000, the tax commission, at first tentatively and then, after a hearing and the introduction of evidence, finally assessed its property in Missouri in the sum of $6,556,192, which assessment the state board of equalization, after hearing, refused to reduce. Plaintiff alleged further: “That in valuing the plaintiff’s property and equalizing said assessment, said Tax Commission and Board of Equalization, under the law and in accordance with the settled practice and custom of said Commission and Board, were required to determine the value of plaintiff’s property in the State of Missouri by taking such percentage of the total value of the plaintiff’s property within and without the State of Missouri as the total mileage of the plaintiff’s poles and wires in the State of Missouri bore to the total mileage of the plaintiff’s poles and wires within and without the State of Missouri”; that, “Within the time required by the laws of the State of Missouri, the plaintiff filed * * * a statement, duly subscribed and sworn to, * * * which statement set out the kind of property composing plaintiff’s telegraph system in the State of Missouri * * * and also the number of miles of poles and miles of iron and copper wire in said State * * * ”; “that from the statements filed by the plaintiff, aforesaid, and evidence offered before said Tax Commission, said Commission had before it the facts showing the total property owned by the plaintiff within and without the State of Missouri, including the total mileage of poles and wires within and without the State of Missouri, and the total cost thereof, the average cost per mile of various kinds of property, such cost less depreciation, together with earnings of the plaintiff’s property prior to such assessment, as well as the market value of its outstanding stock and bonds, over a reasonable period of years prior to such assessment”; “that in making and approving the said assessment of $6,556,192.00, the said (Tax) Commission and- Board of Equalization deliberately, intentionally and arbitrarily grossly overassessed the plaintiff’s said property to the extent that the said assessed value was fixed in excess of $4,300,000.00, by deliberately, intentionally and arbitrarily basing said assessed value upon a cost basis alone, in total disregard of the earning power of plaintiff’s said property and the true value in money of its said property; that the valuation of plaintiff’s said property fixed by said Commission and approved by said Board of Equalization is not supported in any manner by any representative method or basis of valuation; that to arrive at any value of said property in excess of $4,300,000.00, said State Tax Commission could only have gróssly overassessed the plaintiff’s property in Missouri or considered valuations of plaintiff’s property outside of the State of Missouri, not legally forming a part of plaintiff’s property within said State; that in so valuing the plaintiff’s property, and in basing its valuation upon cost alone, and disregarding the earning power and the market value or true value in money of plaintiff’s said property, the said Commission and Board of Equalization proceeded upon a fundamentally wrong theory of valuation, for all of which said reasons the amount of such valuation in excess of $4,300,000.00 constitutes a fraud against this plaintiff, and deprives and will deprive the plaintiff of its property without due process of law,” “and denies to the plaintiff the equal protection of the laws.”
The plaintiff further alleged “that while intentionally, deliberately and arbitrarily assessing the plaintiff’s property, as aforesaid, as of June 1, 1932, for the taxes for the year 1933, grossly in excess of its true value, as aforesaid, and upon such fundamentally erroneous basis of valuation, the said State Tax Commission and State Board of Equalization deliberately, intentionally and arbitrarily fixed, approved and equalized the assessment of all other property in the State of Missouri, for the same year, in the same class for the purpose of taxation, at not to exceed eighty per cent, of its true value in money; that such action by said taxing authorities was and is a discrimination against, and a fraud upon, the plaintiff * * * ” And more particularly it was alleged that real estate and personal property were underassessed at 65 per cent, of true value and that flat reductions were made in the assessment of real and personal property, especially upon flat rates of value for livestock on account of the financial depression since 1929, and that all such underassessment has been so open and notorious that the same has developed into a well-established practice and custom of underassessment.
These claims were put in issue by the answer of the defendants, and on the trial of the case-a member of the state tax commission, Mr. A. J. Murphy, who had participated in making the assessment complained of, testified as a witness for the defendants, and narrated in detail how the assessment was arrived at and made by the board. The contentions argued in this court can be more readily introduced by a consideration of Mr. Murphy’s account of the making of the assessment.
Mr. Murphy said that the sworn return of their properties to the tax commission was supposed to be filed by the public utilities before the end of the year (in this case 1932), and the board passes on it in the spring of the following year or sometime in the summer. In its return for the tax year in question the company omitted to report certain properties amounting to around $800,000 which it had always included in the reports in previous years,' and it also claimed greatly reduced values, so that upon the face of its return its assessment would be much less than it had been. Accordingly, a study was made by Mr. Murphy, not only of the returns made by the company to the tax authorities in Missouri, but of its reports to the Interstate Commerce Commission, the . Missouri Public Service Commission, and to stockholders. Mr. Murphy prepared tables showing what the assessments of the Western Union property had been in the state of Missouri over a number of years. The assessments from 1921 to 1931 were as follows:
1921 $5,470,540.00
1922 5.724.447.00
1923 5.499.156.00
1924 5.865.121.00
1925 5.851.999.00
1926 5.840.633.00
1927 5.853.930.00
1928 5.918.248.00
1929 5.893.139.00
1930 5.955.751.00
1931 5.955.653.00
It appeared that in a period between 1926 and 1931 the property of the company, as assessed in Missouri, had only been increased $115,000, whereas the reports of the company filed with the Public Service Commission of Missouri showed that in the five-year period from 3928 to 1932 the increase of the company’s book value of plant and equipment was $69,161,168. There was nothing in the reports made by the company to the taxing authorities of Missouri from year to year showing increased valuations except that some increase of mileage of wires and poles was indicated. Examination of the returns made by the telegraph company to the taxing authorities in Missouri disclosed that the company did not report the number of miles of wire owned or operated by it in the state of Missouri or in the United States, so that, although Mr. Murphy deemed the pole and wire mileage comparison proper for state allocation purposes, no such allocation could be made from the returns made to the Missouri taxing authorities. Mr. Murphy said: “We were trying to arrive at a correct value of the properties using * * * whatever information we could get. * * * We had copies of their annual reports to the stockholders and in reading these reports we discovered that in this ten years in which we had not been increasing their assessment in Missouri they say their property has increased' 83 per cent. They did not say what kind of property hut we had information enough to know it was' similar property to that in Missouri, poles and wires and telegraphic instruments.” The company’s reports showed that “the new construction for the six years (1928-1932) * * * added to plant and equipment were: Poles $26,802,109.00; wires, $13,-548,031.00; aerial cable, $2,751,825.00; underground cable, $4,486,269.00; conduit $3,948,976.00; pneumatic tubes $1,677,804.-00; telegraphic equipment, $21,340,090.00; total additions to assets $113,232,321.00.” “We were trying to make up our minds whether this property (the telegraph company’s) should be worth more, * * * we examined their annual report and find that the company’s annual report for the fiscal year 1931 says ‘the company’s property has been expanded and intensively developed to keep pace with the growing demand for better and faster telegraph service. Additions and betterments to the plant during the twenty years ending 1931 aggregated $193,335,000.00.’” It also appeared in the reports to stockholders for 1931 that the taxes of the company throughout the United States generally were double those of ten years ago, whereas the property account had increased only 83 per cent.
With this and other information in hand, Mr. Murphy prepared tables of computations of the company’s property values and pole and wire mileages to arrive at a valuation for the assessment. He testified that in reaching the valuation upon which the assessment was made the commission did not'adopt the reproduction cost new less depreciation basis nor any other one theory. In response to the question propounded by the court to Mr. Murphy: “How did you arrive at your assessment?” Mr. Murphy said: “We arrived at that originally by the first method that I talked to you about, the reproduction cost new, comparing that with the earning statement at that time as we knew it and the sale of their securities as we knew it at that time. That was a fair average of the three methods there. The average on plans 1, 4, and 5, that is the reproduction cost new, total net income and sale of securities, which we think are the fa-ir methods. The average of those three is $6,897,350.00.” (The assessment being $6,556,192.)
Although Mr. Murphy did not testify that he was an accountant, his testimony reflects that he was competent to and did make comprehensive studies of the company’s properties from the sources referred to by him.
On the trial Mr. Murphy submitted tables which contained the figures in detail to reflect computations made according to each method employed to arrive at the value of the company’s property in Missouri. The tables so presented on the trial were not those originally compiled by the commission prior to the assessment. Mr. Murphy says: “We made tables in the light of more recent information which we” are submitting. “After this suit came up we had to make further investigation, that is the company did. The company revised their estimates. Every time they revised their figures we would have to revise ours; we would get some additional information.” The tables of computations, submitted by Mr. Murphy and received in evidence, show the valuation of the plaintiff’s property of June 1, 1932, by five different methods, summarized as follows:
(1) Reproduction Cost New Less 15% depreciation Plus 8% Going Value $7,-997,761 — $1,999,664 equals $6,792,007 plus $543,360 equals $7,335,367
(2) Prorated Book or Cast Value $9,930,871 —15% Dep. $1,489,620 equals $8,441,-241 plus 8% equals 9,116,540
(3) Plant Capitalizing Earnings over a 5-year term at 6% return equals 5,917,607
(4) Capitalizing Total Net Income at 7% 1928-1929-1930 and 6% 1931-1932 6,473,571
(5) Sale of Securities equals 6,883,113
Average of all 5 valuations $7,145,239
Assessment 6,555,690
Average of 1-4-5 6,897,350
Valuation on Cost of property*! less Depreciation plus going value * which is valuation used in the ^Equals 9,116,540 assessment of land, Town lota, and most property J
Assessment $6,555,690
72%
Voluminous testimony offered for the company was to the effect that the computations as made for the Board upon each of the several identified methods of estimating values were erroneous, that the conclusions arrived at were wrong, and that the true value of the company’s property in Missouri was only a fraction of the assessment.
On the issue of discrimination Mr. Murphy testified that the practice of the tax commission was to “make a map showing each county in the state and we put down in red ink on this map (over each county) the last previous assessment confirmed by the State Board of Equalization which, in this case is 1932, which was the assessment for 1931. Then we put a second figure in black ink, the average assessment per acre of farm land returned from each county. * * * After this map has been completed and other assessments arrived at rby the County Assessor and certified to by the Tax Commission, the Tax Commission reviews these assessments, compares the assessments with the previous year and gets these maps for probably two or three years back and sees what the general tendency in each county has been, whether it is up or down. We compare the assessment in each county (with the assessment) on lands of the surrounding counties and if we find a discrepancy or if our other information leads us to believe that any of the figures returned by the assessors are too high or too low, we increase it or decrease it and make this third set of figures which is the valuation arrived at by the Tax Commission. Then, wp certify these up to the State Board of Equalization who make an additional finding and their finding is the fourth figure on these maps which is the final assessment for the state.” In answer to the question: “Mr. Murphy, I will ask if the Tax Commission intentionally assessed the property of the plaintiff at more than its true value and other .property in the state at less than 100% of its true value in money?” Mr. Murphy answered: “No.”
The plaintiff called some fifty-odd witnesses who gave testimony tending to show that real and personal property in the state was assessed below its true value and that there had been flat reductions in the assessments upon certain classes of personal property, notably, livestock and bank stock. Many witnesses called for the defendants gave testimony tending to show that property values in Missouri had gone down much faster than taxing officers had reduced assessments, so that in the tax year in question assessed values tended to approximate closely to real values in money.
Neither of the parties made any request to the court to find specially upon any of the very numerous fact disputes developed in the large volume of testimony, and the court accordingly declared briefly and generally that it could not be found as a fact that the fair value of the plaintiff’s property as of June 1, 1932, was less than the amount at which it was assessed; nor that there was any intentional, deliberate, or arbitrary overassessment of plaintiff’s property; nor that the assessment of other property in Missouri “was not at the true value in money of that property”; and the court found “that there was no intentional deliberate nor arbitrary discrimination against the plaintiff by assessing its property at a different or higher percentage of its true value in money than the percentage of value at which other property in Missouri was assessed in 1932.” The court, accordingly, dismissed the bill.
On this appeal the contentions of the appellant relate, first, to its claim that its property was overassessed, and, second, to the claim of discrimination on account of the alleged failure to equalize the plaintiff’s assessment on the same basis of valuation as the great mass of other property in the state.
Overassessment.
As to the overassessment of the property, it has been argued for appellant that the assessment here assailed was not arrived at by the tax commission upon consideration of computations made in accordance with the several theories of valuation testified to by Mr. Murphy, but that it was, in fact, made arbitrarily by wrongfully including certain locally assessable properties and other property outside the state at grossly excessive prices and then resorting to computations merely to check or justify what had been wrongfully done. It is claimed that a so-called “work sheet” produced from the files of the commission (Exhibit, 17-A) and the testimony concerning the same would so indicate. The exhibit referred to includes an item “Other Equipment, $1,498,764,” and it is argued that the property referred to in this item was in part property that was outside of the state and that another part, amounting to at least $1,000,000, was inside of the state but locally assessable and not subject to assessment by the tax commission. On stridy of the testimony relative to this controversy, we have concluded that it was not established that the identified work sheet was intended to or did set forth the elements upon which the assessment was based by the tax commission. We have concluded that we should give credence to Mr. Murphy’s statement that the assessment was reached originally by the commission upon consideration of the several methods of computation and the combination thereof as described by him.
The appellant has also presented that the commission followed fundamentally erroneous methods to compute the value of plaintiff’s property as argued in the following contentions, which we will number, epitomize, and discuss:
1. That in its valuation upon the reproduction cost new basis the commission wrongfully included an arbitrary item of 8 per cent, for franchise or going value, amounting to $300,000.
2. That the commission included personal property to the extent of at least $1,-000,000, which was assessable by the assessors in the local subdivisions of the state and not by the state tax commission.
3. That the commission based its valuation upon book values without adequate allowance for depreciation and without due consideration of actual values, wrongfully taking (in part at least) an average value over a period of years.
4. That in its valuation by capitalization of earnings, (a) a five-year average was wrongfully taken; (b) expenses of rent on lease lines were not deducted; (c) the commission capitalized earnings on the basis of 6 per cent, instead of 7 or 8 per cent.
5. In its valuation on the sale of’ securities basis of computation the commission (a) wrongfully used a five-year average of sales values; (b) it wrongfully added stocks and bonds which plaintiff had purchased amounting to about $1,765,550; noninterest-bearing liabilities, about $13,-000,000; premiums on stocks, about $1,-163,350; and bonds owned by plaintiff and deposited as collateral for loans, $3,143,000.
1. Going Value. In estimating the value of the company’s property upon the basis of reproduction cost new less depreciation, the Board, after, deducting 15 per cent, depreciation from the' gross valuation, added to the depreciated figure an amount equal to 8 per cent, thereof as going value. Later, when the tables showing the five different methods of estimating values had been compiled, the' same addition of 8 per cent, upon the depreciated valuation was made by Mr. Murphy in reaching his valuation by his so-called prorated book or cost value. Mr. Murphy said: “In some of these computations there is an 8 per cent, going value as a part of the real value of the property. It was added, however, after taking off depreciation.” “The theory of going value is this: that in a property of this kind, spread out over the United States, that it would take at least five years to build, that you would incur three or four years taxes, interest, and everything on your securities before you get to earning a cent. You are attempting to establish the value of it at the present time. * * * So I think that is a proper element to be taxed. We assess similar values on every utility in the state. * * * Always have.”
The reasons upon which it has been found necessary in estimating the value of properties like the plaintiff’s to make an addition on account of going value have been explained and upheld by the courts in numerous cases (see Los Angeles Gas & Electric Corp. v. Railroad Comm., 289 U.S. 287, 313-319, 53 S.Ct. 637, 77 L.Ed. 1180); and we do not find fundamental error, illegality, or fraud in the addition made under the item “Going Value.” Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 139, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 109-111, 55 S.Ct. 55, 79 L.Ed. 222; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 28, 52 S.Ct. 48, 76 L.Ed. 146; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 245, 52 S.Ct. 133, 76 L.Ed. 265; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L. R. 979.
2. Property Claimed to be Locally Assessable. Two assignments of error and considerable portions of appellant’s brief and reply brief relate to its second contention above stated to the effect that certain property included by the Commission was locally assessable property. There is no competent evidence to establish that the property referred to in this contention ever was actually assessed by local assessors in the state or that there was a double assessment thereof by local and state assessing officers. Mr. Meigs, testifying for the telegraph company, says that “he had been told that the elements of value enumerated” had been locally assessed and that “he had been told that the reason for not including them in the returns of the company for the year in controversy was that he had been so told by Mr. Whitney, now deceased, who was tax attorney.” Whether any of the company’s property was in fact being doubly assessed, once by local assessors in the counties and again by the state tax commission, was a matter very easy of ascertainment and demonstration by the company. The Missouri statute (section 9764, R.S.Mo.1929 [Mo.St.Ann. § 9764, p. 7880]) requires the company to make a sworn return to local assessors of any of its property which is locally assessable, and no such local returns are shown. Mr. Murphy testified: “I want to say further that there is a blank sent to them (the telegraph company) to make a return of their property in each county in the state and each taxing subdivision. They reported nothing on those blanks, except the number of miles of wire and number of miles of poles. They did not give us a list of any other property in those counties or taxing subdivisions.”
Neither did the company plead that the tax commission had committed the wrong now complained of. Its pleading was, as stated, that the tax commission had arrived at its excessive assessment by other means specifically set out, not including double assessment by local officers and by state officers. The pleading referred to is the amended petition which the plaintiff was permitted to file after all of the testimony had been taken on the trial. Nor does the record disclose that this contention now seriously urged upon us was presented to the trial court. Undoubtedly the great bulk of locally assessable property belonging to the telegraph company in Missouri is in St. Louis, where it has valuable land and buildings and equipment. Mr. Murphy was very positive that those were not included in his calculations. He testified: “In making these computations I did not count in the buildings and land. * * * I eliminated those * * * they were deducted as noil-distributable property. What we recognize as and what the law recognizes as non-distributable property is lands, buildings. * * We did not include these in this calculation.” lie said that he had only included “distributable property” in his calculations and that such property was properly assessable by the state tax commission rather than by the local assessors.
Because it has been urged upon us with earnestness we have given this contention of the appellant careful consideration, but we conclude that it should not be sustained.
3. Book Values — Depreciation. The appellant pleaded and has contended upon elaborate analyses of all relevant computations and figures that the commission gave undue weight to book' values. Its argument establishes that in the depression tax year in question book values were not an accurate criterion of true value, and undoubtedly, if it could be proven that the assessment was merely the book value in that year, that would present “a fundamentally wrong theory” of valuation.
At the opening of the trial counsel for the telegraph company said: “There is no dispute about the reconstruction costs new in any value of the physical plant. There is no contest but that that is correct.” There were disputes as to what items should be properly included. The company submitted four different reports of its reproduction cost new as of June, 1932. Report No. 1 was submitted in 1932 and withdrawn because of errors. Report No. 2 was submitted in January, 1933. Report No. 3 was submitted in depositions taken by appellant in New York after institution of this suit. Report No. 4 was submitted when the case was being tried before the court. The totals of the reports are as follows:
(The assessment, $6,556,192, is exactly 75 per cent, of the above figure $8,741,589.)
In all of its reports the company took a 30% per cent, depreciation and omitted going value. Reports Nos. 2 and 3 omitted items of property aggregating $885,808 claimed to be nonassessable by the company but which were included in report No. 4, and which the defendants claim should be included. They all also omit additional items amounting to $317,935 of property which had been reported as operative property of the company to the state authorities in previous years and which ought to be included according to the defendants. The estimate of reproduction new less depreciation at 15 per cent., with 8 per cent, going value, arrived at and shown on defendants’ table of computation, was $7,335,367. Recalculation of the defendants’ three methods of computation, 1, 4, and 5, produces the following result when weighted by attributing 20 per cent, to the first method and 40 per cent, to each of the others, as follows:
Value by Reproduction Cost new less depreciation.
Method No. 1 $7,335,367
20% of this value $1,467,073
Value by Capitalization of Net Income
Method No. 4 6,473,571
4C% of this value 2,589,428
Value by Sale of Securities
Method No. 5 6,883,113
40% of this value ' 2,753,245
Value by Combination of Methods $6,809,746
Appellees’ Assessment 6,555,690
Upon consideration of these tables and the data from which they were derived, we think it cannot be held that the assessment in question was wrongfully rested on book values or on reproduction cost new less depreciation plus going value. The strength as well as the weaknesses of the reproduction cost new less depreciation method of valuation have been recognized and explained by the courts. Cleveland, C., C. & St. L. Ry. Co. v. Backus, 154 U.S. 439, 14 S.Ct. 1122, 38 L.Ed. 1041; Harris Trust & Sav. Bank v. Earl (C.C.A.8) 26 F.(2d) 617, 618; Chicago & N. W. Ry. Co. v. Eveland (C.C.A.8) 13 F.(2d) 442; Northern Pac. Ry. Co. v. Adams County (D.C.) 1 F.Supp. 163, 174, 175, 190, 191; See Standard Oil Co. v. So. Pac. Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890. But it is an allowable method of estimating values, providing undue weight is not accorded to it. In the computations above set forth, a weight of only 20 per cent, has been accorded, and the resultant figures do not show a grossly excessive or arbitrary assessment was arrived at.
Neither do we sustain, the contention of the appellant that the only allowable depreciation was 30½ per cent. It would appear that, in view of the reports made by the company concerning the condition of the property, a less percentage could lawfully be taken for depreciation. Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182. We have not overlooked the testimony of Mr. John B. Campbell, called as a witness on rebuttal for the telegraph company, who testified, among other things, that, as a stockholder in the company, he had received no dividends for several years and that the company’s properties in Missouri were depreciated on the average of about 50 per cent. Other testimony reflects that dividends have been earned on the stock of the company continuously since 1870, and that the lesser rate of depreciation was not improper.
4. Capitalization of Earnings. Mr. Murphy prepared several tables reflecting an estimate of the value of the company’s property in Missouri according to the capitalization of earnings method, always taking averages over a five-year period, and appellant complains that it was fundamentally erroneous to use a five-year period in computing under this method. The evidence is that the earnings of the company were at the lowest point in the tax year in question, and it is argued that, as the only value in the company is its power to earn, when its earnings fell its value for taxing purposes should be reduced to the same low level. We think it was necessary for the commission to consider the reduced earnings, but we do not agree that, because the net earnings fell to little more than a third of what they were in 1928, the assessment should be reduced to the same extent. The long-maintained stability of the company cannot be disregarded, and it was not fundamentally erroneous to consider the five-year average in the computation. Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 149, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 105, 55 S.Ct. 55, 79 L.Ed. 222.
In making the computation in one of the tables presented by him, Mr. Murphy capitalized net income of the system at the rate of 7 per cent, per annum for the three years 1928, 1929, and 1930, estimating the values at $319,190,540 for 1928, $330,542,-858 for 1929, and $282,528,985 for 1930, but for the two years 1931 and 1932 the valuation on this basis fell to $242,418,566 and $126,566,800 respectively upon a 6 per cent, capitalization used for those years. The appellant complains that there was fundamental error (among other things) because in making the computations the item of “expenses on rent of leased lines” was not deducted. The experts for the company claimed large deductions by reason of the rent items.
On this issue Mr. Murphy testified that the reports of the company reflected that the company leased about 15 per cent, of the total wire which it used in the system and that it paid large sums for rent on the leased lines — about three and a half million dollars in the year 1928, for instance. It appears that the company had very little leased plant or equipment in Missouri, and Mr. Murphy testified that this fact had to be taken into consideration in making the computation of value upon the capitalization of earnings method used to make up the table on that basis. He pointed out that, unless the item of rent from leased property was treated the way he treated it, an unfair reduction of the value to be allocated to Missouri would result. He testified: “They pay three and one-half million dollars rent on that 15 per cent, of their wire,” and he said: “We take it (the item of rent) off after we determine the earnings of the entire wire mileage. Then you pay it, but it is not a proper deduction before you determine the earnings of your entire system.”
The real inquiry of the commission was as to the result of capitalizing the earnings per mile in order to attribute just value to the miles in Missouri. In Mr. Murphy’s view, Missouri was not concerned that some of the company’s wires in other states were leased and rental paid therefor. As the ultimate allocation to Missouri from all of the computations according to this method was upon the comparison of wire mileages, we are not convinced that the method of computation described and illustrated by Mr. Murphy was fundamentally erroneous in the particular complained of.
Neither can it be said that the 6 per cent, basis used for capitalization of earnings was fundamentally erroneous. Great Northern Ry. Co. v. Weeks, supra.
5. Sale of Securities Method. In estimating the system value of the telegraph company on the sale of securities basis, Mr. Murphy testified that the figures were all obtained from the company’s reports to the Public Service Commission as to quantities of securities, and the sale prices were obtained from letters of the company and from information furnished by the company to the Oklahoma state tax commission. “The prices on the securities which they report agree with our records but there are a number of securities they did not report that we had to get prices on elsewhere.”
The appellants complain that the securities which Mr. Murphy here refers to and which the company did not report ought not to have been included in the computation of value according to the sale of securities method.
It appears that the company carries on its books certain large items as liabilities which are peculiar. One item is carried m its reports at about $13,000,000, another item is “premiums on stocks” about $1,-163,350; “bonds owned by plaintiff and deposited as collateral for loans,” .$3,143,000; and “stocks and bonds purchased by plaintiff” amounting to about $1,765,550. The nature of the items was explained by Mr. Dow, testifying for the company. The question whether the items should have been included in Mr. Murphy’s computations of value on the “Sale of Securities” basis is not free from doubt. Mr. Murphy’s testimony reflects that he understood the peculiar nature of the items and gave them careful consideration. He says that “item of $13,000,000 is the one that is explained here * * * ‘Deferred non-interest bearing liabilities in respect of proceeds of sales of securities and other properties held under leases for terms expiring in 1981 and 2010 from companies in which the Western Union Telegraph Company has, for the most part, a controlling interest, payable on the termination of the leases.’ I don’t know what would be the present value of that liability but I presume the proceeds of those have been turned into money and invested in the plant.” (Not denied by Mr. Dow.) He says, as to the item of $3,143,000, “That represents bonds presumably of their own company that is owned by the company and deposited as collateral security for loans.” He says that the company put the items on its balance sheet as liabilities. “You (the company) promise to pay those securities. They are on your liability side; they are a debt of the company. Anybody going to buy your stock would look and see that you owed $18,000,000.00 before they could get their money.” They (the items) “reduce the value of the stock just that much.”
Upon these considerations Mr. Murphy left the items in his computation and maintained on the trial that they should be left in. We think that their inclusion tended to somewhat exaggerate the total value reached on the “Sale of Securities” basis. On the other hand, there could be no justification to omit these items entirely from the computation of value on the sale of securities basis. They appear to have been an integral part of the financial setup reflected by the company’s report, and the theory of this particular method of computation contemplates that all obligations ahead of the capital stock liability must be included in the computation. Accountants’ ingenuity should suggest some adjustment in relation to the items, but such error as is involved in Mr. Murphy’s computation is not the fundamental error of method denounced by the courts, but merely a failure to reach perfection in the details of carrying out of a method of computation which method was in itself fundamentally sound; that is to say, the method was one of the methods permissible to be used where no undue weight is accorded to it, and no undue weight was accorded in this instance.
Allocation Percentages. It appears that different percentages were used by Mr. Murphy in different computations to allocate Missouri’s share of system values ranging between two and a fraction to three and a fraction per cent., and Mr. Murphy explained the method of arriving at each of the percentages. Mr. Murphy does not dispute the propriety of comparing the total mileage of “plaintiff’s poles and wires in the state” with “the total mileage of the plaintiff’s poles and wires within and without the state,” alleged in plaintiff’s petition to be customary and proper. But it appears that plaintiff had not reported the specific number of miles of wire owned and miles operated by the company in Missouri or in the system. Consequently, it was necessary for Mr. Murphy to make elaborate computations as to pole lines, conduits, cables aerial and underground cables, cables, pneumatic tubes, etc., and Mr. Murphy’s testimony is persuasive that the computations he made were in good faith to arrive at a proper percentage for allocation in each instance, and none of the percentages so used by him has been shown to be fundamentally erroneous or arbitrary.
Although in our discussion of the valuation of appellant’s property we have referred extensively to the testimony of Mr. Murphy, we have not overlooked the opposing testimony of the company’s witnesses. But our inquiry has been whether the valuation was arbitrarily arrived at, or by fundamentally erroneous methods, or by such reckless disregard of proper evidence as to amount to fraud and, as Mr. Murphy was a member of the assessing body and participated in and knew its processes, frequent reference to his testimony and explanations has been necessary.
Appellant has contended that the conclusion reached by the Supreme Court in Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 56 S.Ct. 426, 433, 80 L.Ed. 532, is the conclusion required by the testimony here. In that case “the testimony and computations made by respondents’ [the taxing officers] witness show that the 1933 assessment could not have been arrived at by any calculation based on the principles and methods governing the tax commissioner in his computations submitted to the board through a period of years and constituting the controlling bases of the assessments made by it,” and the Board arbitrarily adopted an assessment clearly demonstrated to have been inapplicable at the time of the assessment. 297 U.S. 135, loc.cit. 148, 149, 56 S.Ct. 426, 80 L.Ed. 532.
We are satisfied that no such situation is here presented, and the case is relevant only as it reiterates the positive duty of the courts to afford protection in every proper case against unlawful confiscation attempted under the guise of taxation. St. Joseph Stock Yards Co. v. U. S., 56 S.Ct. 720, 80 L.Ed. 1033; Baltimore & O. R. Co. v. United States, 56 S.Ct. 797, 80 L.Ed. 1209. The elaborate and painstaking analysis of the whole testimony presented in the brief and reply brief of the appellant leaves no doubt that' some computations and estimates of value given by Mr. Murphy involved inaccuracies, but we find no mistakes which reflect any intention or purpose of the commission to depart from or disregard methods which are recognized to be sound and applicable. We deem the opinion in Roley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 55 S.Ct. 55, 79 L.Ed. 222, more nearly controlling here and that the charges of fraud or arbitrary, willful, or fundamentally erroneous action in the valuation put on the plaintiff’s property were not sustained.
Discrimination.
The property of appellant is of the kind of property referred to as utility property, and it is not shown in the testimony that utility properties in Missouri were assessed for the tax year in question here below their full 100 per cent, value, nor that there was discrimination between the assessment of plaintiff’s property and that of utilities generally in the state. Cf. Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 52 S.Ct. 133, 76 L.Ed. 265; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 52 S.Ct. 48, 76 L.Ed. 146; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L.R. 979.
Although very substantial reductions were made in the assessment of the stocks of banks in the state, the testimony discloses very pressing reasons for such reductions and why they were made. There was a general shrinkage of value of loans, bonds, and other investments which, on the whole and generally, affected the value of bank stocks and occasioned a reduction in their assessments. Mr. Sam E. Trimble, a member of the tax commission of the Missouri Bankers Association, testified:
“I am executive vice president of the Union National Bank * * *
“Considering the experience of so many of the banks closing, the liquidation of these banks, the fluctuation downward of securities which heretofore had always been regarded as good and marketable, even the fluctuation of Government securities, the downward trend of real estate, we made a calculation after going thoroughly into it that a deduction of approximately 4 per cent. on the resources of the average bank in Missouri would equal a reduction of 40 per cent, of the capital structure. To illústrate, the ratio in Missouri is about ten to one; the total resources is about ten times the capital structure. Four or five per cent, of that would equal 40 per cent. of the capital structure, lhe banks were trying to build up reserves m surplus and undivided profits for protection and that was also considered because that was a safeguard for the depositors and that was by experience and observation that we came to that conclusion. It was our conclusion that the 60 per cent, assessment was the real value of the shares of the bank.
Likewise as to livestock, there was a great falling off in value and assessments were somewhat lowered.
There is a large volume of testimony taken by the plaintiff including individual and compiled tables of appraisals in many parts of the state and comparisons with assessments and admissions made by assessors of intentional assessment below full value and studies of values and assessments such as have become familiar in cases of this character since Louisville & N. Ry. Co. v. Greene, 244 U.S. 522, 37 S.Ct. 683, 61 L.Ed. 1291, Ann.Cas.1917E, 97, all of which has been read and considered.
It appears that the grand totals of the taxable wealth of the state of Missouri for the years 1929, 1930, 1931, and 1932 were as follows •
June 1, 1929 $4.968,850,691.00
June 1, 1930 4,788,153,970.00
June 1, 1931 4,320,685,447.00
June 1, 1932 3,909,115,389.00
From which table it appears that there was a reduction in the assessment of all property of about 20 per cent, over the period. There is persuasive testimony that actual market values and true values in money of property of almost all kinds and descriptions in Missouri fell much more than the 20 per cent, shrinkage in the total assessments, and it is made especially clear that as to great masses of property actual buying and selling fell off to such an extent that there: appeared to be: no firm or constant market for sales. It is also evident throughout all the testimony that the absolute necessity of the state and localities to raise money enough to run the government prevented the lowering of assessments entirely without check. Mr. Forrest Smith, a defendant member of the state tax commission, testified:
“As a member of the State Tax Commission my chief duly was dealing with taxation, the matter of assessments and valuations of property, exercising some superintendence and control over the assessment valuations of property all over the state. We had a meeting with the assessors every year before they started assessing as of June 1st. I tried to familiarize myself with the values of real and personal property in Missouri in the year 1932. At that time there were practicaily no sales except foreclosures, very few bona fide sales in the state. Due to the economic condition, of course, no one wanted real estate. There is no income from it and banks wouldn’t loan money on it. The prices of live stock and grain at that time were very low, below the normal on live stock and wheat was about the lowest. At threshing time the Missouri wheat sold for 22 to 35 cents a bushel; corn was about 35 a bushel June 1, 1932. * * * I would say it was assessed at 100 per cent, of its actual value. * * *
“My information as to value was not gathered entirely from delegations who wanted their taxes lowered. We sent out questionnaires to the various assessing officers and we used every means we knew to obtain accurate information. We took the questionnaires wherein the assessors state tbe percentage m their county as evidence of what they were being assessed; the same with the county courts; and considered that along with the delegations who came on complaints. Under the law, of course, we were compelled to visit every county in the state every two years for the purpose of studying conditions and familiarizing ourselves with property values.”
The trial court, in a memorandum commentary on certain of his findings, said: “I am frank to say that upon a first consideration of the evidence I was inclined to the view that the plaintiff had proved an undervaluation for taxing purposes of all other property in the state. Further consideration of that matter, however, has convinced me that while prior to the year 1932 there had been such an undervaluation of other property in Missouri, the sharp decline in all property values in the state resulting from the depression, a decline that had become fully manifest in 1932 substantially had made, what doubtless was intended to be an undervaluation a fair approximation of real values. There was evidence supporting this conclusion. The conclusion is supported also by facts of which judicial notice must be taken.”
Our reading of the testimony on this issue has led us to a similar decision. The blunders of some witnesses are glaring, as when Assessor Wampler testified that he did not intentionally assess at other than true value in money, though it was shown that he sold a mule for $140 and then assessed the same mule in the hands of his own vendee at $40. But the testimony adduced falls far short of clear, convincing proof that property generally in Missouri was, at the time of the assessment in question here, of greater market value or of value in money to any substantial extent beyond the amount of the assessment thereof.
The appellant has forcefully pointed out that.the only ground upon which assessment of other property can be said to approximate true value is that the continued stress of the depression reduced values faster then assessments were reduced. It contends that, if such view be adopted, then it should follow that a similar depression valuation should be put on the company’s property. It argues that the depression did bear with full force upon its net income and its sales of securities values in 1932, and it submits at least one table re-fleeting a value of its property in Missouri only a little over one-third of what its assessments had been. But we think that the proven stability of the plaintiff’s organization and property, its history and its future prospects, justified the commission’s refusal to base the assessment upon temporary low figures of the bottom of the depression.
In conclusion: A company like the plaintiff has a great stake in the maintenance of government in each of the states where its properties are situated, and must be ready and willing to contribute, through taxation, its fair and just share towards the support of such government. Likewise, in view of the extent and intricacies of the taxable interests of the company, it should make complete, full, and simplified returns to minimize the chance of error on the part of officers charged with the duty of assessing its properties. The failure of the plaintiff to prove the substantial and important allegation of its petition, that it had reported its miles of wires in the state and in the system to the taxing authorities prior to the assessment, has detracted from the equity of the plaintiff's case, notwithstanding its explanation that “the error resulted from the failure of the Commission to require specifically a separate statement of wire in tubes and conduits.”
On consideration of all of the testimony we find some basis for the statement made by Mr. Murphy during the course of his examination: “Realizing in these times that everybody is urging a reduction in assessments and had Missouri raised the assessment on this (telegraph) property back in 1928 or 1929 when the net earnings before depreciation and interest amounted to twenty-eight or twenty-nine million dollars a year, to twenty-five or thirty per cent, above the assessment in previous years, then a reduction in assessments might have been in order but in view of the manifest fact that they were under assessed in those years it would be unfair to other companies to not raise or; readjust the assessment on this company.”
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. | This question concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? | [
"legislative",
"executive/administrative",
"bureaucracy providing services",
"bureaucracy in charge of regulation",
"bureaucracy in charge of general administration",
"judicial",
"other"
] | [
2
] | songer_respond2_5_2 |
UNITED STATES of America, Appellee, v. Sara Maria NUNEZ, Reyes Torres Troche, Manuel O. Nunez, Defendants, Appellants.
No. 80-1837.
United States Court of Appeals, First Circuit.
Argued Nov. 2, 1981.
Decided Dec. 10, 1981.
Lorenzo 0. Caban Arocho, Mayaguez, P. R., for defendants, appellants.
H. Manuel Hernandez, Asst. U. S. Atty., San Juan, P. R., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for appellee.
Before CAMPBELL, BÓWNES and BREYER, Circuit Judges.
PER CURIAM.
The government charged appellants, in a two count indictment, with “aiding and abetting each other” in encouraging and inducing “the entry into the United States of aliens not lawfully entitled to enter or reside” there. Appellants waived a jury trial. They were convicted, sentenced to terms of imprisonment ranging from six months to two years, and placed on five years probation. They raise a number of objections to their convictions and sentences, all of which we find to be without merit.
Appellants’ major argument is that Count I of the indictment (which relates to the illegal aliens Marta Linares Ramirez and Ruth Esther Linares Ramirez) is insufficiently specific about the date of the offense. That count charges that the offense took place “on or about 1977, the exact dates to the grant jury unknown.” Although it is unusual for an indictment not to pin down the date of the crime with greater specificity than this, it is nonetheless hornbook law that “great generality in the allegation of date” is allowed, 1 Wright, Federal Practice and Procedure: Criminal § 125 at 246-47 — at least where, as here, the exact time of the crime’s commission is not important under the statute allegedly violated. See United States v. Antonelli, 439 F.2d 1068, 1070 (1st Cir. 1971), and 8 U.S.C. § 1324(a)(4). “Generally,' exact dates are not required so long as they are within the statute of limitation . . . and no prejudice is shown.” United States v. Austin, 448 F.2d 399, 401 (9th Cir. 1971) (citation omitted). In a case such as this one, the allegation of time “is not regarded as going to an essential element of the crime, and, within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient.” Wright, supra, at 247. See also United States v. Vahalik, 606 F.2d 99, 100 (5th Cir. 1979); Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970).
The charge in this instance would seem “reasonable.” The government states, and appellants do not deny, that the witnesses were unable to be more specific as to date. Moreover, the facts at issue were scarcely concealed from or unknown to appellants. Under the Jencks Act, appellants were provided with the government’s evidence, including the statements of the relevant witnesses, long before trial. The two aliens named in Count I of the indictment lived in the house of and worked for one of the appellants and were personally known to all of them. Appellants, in short, knew virtually as much about the government’s evidence, including the evidence about the date, as did the government. As imprecise as the date charged in Count I of the indictment was, it fell plainly within the applicable five year statute of limitations. See 18 U.S.C. § 3282. No other special factor here makes the indictment’s language unfair or prejudicial.
Appellants seek to bolster their argument by pointing out that on November 6, 1980, in response to a request for more specific information about dates, an assistant United States attorney wrote that the events charged in Count I took place in February 1978. The government agrees that its answer in this letter was mistaken. It discovered its mistake at a pretrial conference held one week later on November 14. It immediately told appellants’ counsel that the February date was wrong and that it would rely instead upon the dates charged in the indictment.
We are aware of no prejudice that this mistake could have caused appellants. Appellants knew about the government’s claim as to date for at least a month prior to November 6. They had received the Jencks Act material with the alien witnesses’ statements two months before November 8. At most they were under a misapprehension about the relevant date for eight days. And any misapprehension was cleared up ten days before trial. We consider the government’s “February” response, then, as of no more consequence than a minor variance between a date charged in an indictment and a date proved at trial — a variance that generally does not warrant reversal. See, e.g., United States v. Antonelli, 439 F.2d at 1070; Russell v. United States, 429 F.2d at 238. See generally Wright, supra, at 247 & n.37.
Appellants’ other claims are equally without merit. They argue that the district judge abused his discretion in sentencing them to more than probation. It is well-settled, however, that as an appellate court “we are without authority to reverse [an] adult sentence . .. imposed within statutory and constitutional limits.” United States v. Beliard, 618 F.2d 886, 888 (1st Cir. 1980).
Appellant Sara Maria Nunez argues that she cannot be convicted because her actions allegedly took place in the Dominican Republic — outside the United States. It is clear, however, that an individual can be convicted of inducing and encouraging the unlawful entry of aliens into the United States even though the acts of inducement and encouragement take place abroad, United States v. Beliard, 618 F.2d at 887; United States v. Castillo-Felix, 539 F.2d 9, 13 (9th Cir. 1976), United States v. Williams, 464 F.2d 599, 601 (2d Cir. 1972), particularly where, as here, the aliens in fact enter this country.
The remainder of appellants’ claims consist of wide-ranging arguments as to why the witnesses against them ought not to be believed and why their evidence was more convincing than that of the government. As to those claims, we simply state that our review of the record convinces us that there was adequate lawful evidence upon the basis of which a rational trier of fact could have concluded beyond a reasonable doubt that appellants were guilty of the crimes charged. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Nardi, 633 F.2d 972, 974 (1st Cir. 1980).
Affirmed.
. See 8 U.S.C. § 1324(a)(4), which provides: (a) Any person ... who—
(4) willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of— any alien .. . not lawfully entitled to enter or reside within the United States .. . shall be guilty of a felony....
And see 18 U.S.C. § 2(a), which provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
0
] | songer_typeiss |
Charles COX and Albert Earl Jones, Appellants, v. Agnes H. REMILLARD, Administratrix of the Estate of Edward S. Remillard, Deceased, Appellee.
No. 14910.
United States Court of Appeals Ninth Circuit.
Oct. 18, 1956.
Ryan & Pelay, John D. Ryan, James J. Kennedy, Portland, Or., John Gavin, Yakima, Wash., Edwin L. Dunnavan, Pasco, Wash., for appellants.
Arthur S. Yosburg, William H. Hedland, Prank Bosch, Portland, Or., for appellee.
Before STEPHENS, POPE and CHAMBERS, Circuit Judges.
POPE, Circuit Judge.
This was an action under the Oregon Wrongful Death Act, brought in the court below by reason of the diversity of citizenship of the parties. The defendants, appellants here, were charged with having caused the death of Edward S. Remillard, the plaintiff’s decedent, through the negligent operation of a tractor at a place near The Dalles, Oregon. Edward S. Remillard was then three years of age and had a life expectancy of 61 years. Upon trial to. the court without a jury, the plaintiff administratrix recovered judgment for $10,000 general damages, and $238 special damages. (The latter were for funeral expenses.)
No question is raised upon this appeal as to the propriety of the trial court’s finding of negligence on the part of the defendants. All the assignments of error relate to the amount of. the judgment. It is not only alleged that the award is excessive and based wholly upon speculation, but that the Oregon statute does not permit any recovery for the benefit- of the estate of a three year old decedent, and that a construction of such statute as permitting any such recovery would render the Act unconstitutional.
The Oregon Wrongful Death Act, Oregon Revised Statutes, § 30.020, is copied in the margin. The key provision of the section, insofar as it concerns a case like this, where there is no spouse and no dependents, is that the recovery shall be “for the benefit of the estate of the decedent”. This serves to put certain limitations upon the recovery. This is well and briefly put by the Oregon court in Lane v. Hatfield, 173 Or. 79, 143 P. 2d 230, 234, where the court, dealing with an action brought by the administrator of the estate of a seven year old child, stated that it was the duty of the court " * * * to limit plaintiff’s recovery to the amount which the estate of decedent would comprise if decedent had not been killed as here narrated. Her estate would be entitled only to the accumulation of money and other property derived from her services, earnings, investments and savings during the period of her life subsequent to the time when she attained the age of majority.”
Prior to the time when the Oregon statute was amended to read as it does at present, the act provided that in all cases, whether the decedent had dependents or otherwise, the measure of recovery was the loss to the decedent’s estate. Carlson v. Oregon Short-Line & U. N. Ry. Co., 21 Or. 450, 28 P. 497. After these amendments, the so-called “benefit of the estate rule” was departed from in the case of decedents with dependents, and it was held that the damages recoverable were similar to those allowed under Lord .Campbell’s acts generally. Nordlund v. Lewis & Clark R. Co., 141 Or. 83, 15 P.2d 980. Even so, recoveries in such cases were limited strictly to the “pecuniary value of the services which the beneficiary under the statute might reasonably have expected from the person on account of whose death the action was brought.” Hansen v. Hayes, 175 Or. 358, 154 P.2d 202, 214.
The argument most strongly urged by appellants here is based upon certain language used by the Oregon court in the two cases last cited. There it was said that in determining damages, the jury should .be instructed to consider the age, health and physical condition of the decedent, his habits with respect to industry and thrift, his capacity to earn money, his probable length of life, and how many years of that life he would be likely to devote to earning money. Appellants say that most of these criteria cannot be applied in a case where recovery is sought for the death of a three year old child. Here, of course, there are neither spouse nor dependents, and the recovery must be limited by the rule stated in Lane v. Hatfield, supra. Appellants argue that here, in contrast with a case involving death of an adult, the capacity to labor, the earning capacity, the habits of living and expenditures, and of thriftiness, cannot be taken into , consideration for proof of them is unavailable. The statute itself, they say, furnishes no tests or standards by which to measure the recovery “for the benefit of the estate of the decedent”. The argument is that as applied to an adult the statute has become valid and workable only because the Oregon court by judicial construction has attached to it the tests and standards we have mentioned; but in a case where those standards are not susceptible of proof, the act on its face is so vague and indefinite as to be unenforcible and void and hence lacking in due process.
While no such argument as to the unconstitutionality, or partial unconstitutionality, of the Act was presented in Lane v. Hatfield, supra, yet the Oregon court there found no difficulty in applying a workable standard of proof where the death of a seven year old girl was involved. That case, therefore, demonstrates that there is no basis for the appellant’s attack upon the validity of the Oregon act. In the Lane-Hatfield case the life expectancy of the child was proven, and that she was “active, alert and gave promise of a successful and commendable fruition.” The proof here was just as adequate. It was stipulated in the pretrial order that young Remillard had a life expectancy of 61 years, and the testimony was that he was a bright, alert, normal and healthy boy. It is true that it was impossible to furnish all of the proof of anticipated earnings and savings which might be furnished in the case of an adult, but that circumstance does not mean that no damáges whatever can be recovered, which would be the result were we to accept appellants’ argument.
There are numerous types of cases in which as a matter of common sense it is known that the damages are real but the precise amount, from the nature of the case, is not susceptible of definite proof. Yet that circumstance does not compel denial of substantial recovery. This the Oregon court recognized in Lane v. Hatfield, supra, where it said: “No one knows or can know when, if at all, a seven year old girl will attain her majority for her marriage may take place before she has become twenty-one years of age. * * * Moreover, there is much uncertainty with respect to the length of time anyone may live. A similar uncertainty veils the future of a minor’s earning capacity or habit of saving. Illness or a nonfatal accident may reduce an otherwise valuable and lucrative life to a burden and a liability.
“The rule, that the measure of recovery by a personal representative for the wrongful death of his decedent is the value of the life of such decedent if he had not come to such untimely end, has been termed vague, uncertain and speculative if not conjectural. It is, however, the best that judicial wisdom has been able to formulate.”
In this case the court could properly assume that the boy would normally live out his expectancy of 61 years. Likewise, it could infer that he would conduct himself as normal individuals do; that he would have earning capacity, and that he would accumulate savings. In Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159, 181, 29 S.Ct. 270, 277, 53 L.Ed. 453, the Supreme Court quoted with approval the statement made in a Texas case [Brunswig v. White, 70 Tex. 504, 8 S.W. 85] to the effect that “ ‘when from the age and undeveloped state of the child, any estimate of value of the services until majority would be matter of opinion, in which no particular or especial knowledge in way of expert testimony could be procured better than the judgment and common sense of the ordinary juror called to the duty of determining such value, then, upon such testimony, the sound discretion of the jury can be relied on to determine the value, without any witness naming a sum.’ ”
The principle that under a statute similar to the Oregon statute here involved proof of current or past earnings is not indispensable was stated in Herzig v. Swift & Co., 2 Cir., 146 F.2d 444, where the court was dealing with an action under the Florida Wrongful Death Act, F.S.A. §§ 768.01, 768.02. The court cited International Shoe Co. v. Hewitt, 123 Fla. 587, 167 So. 7, as holding that recovery for death of an adult might be allowed although no savings were shown and the deceased had earned nothing for four years prior to her death.
“In cases of this character it is not possible to prove the damage with any approximation to certainty. The jury must estimate them as best they can by reasonable probabilities, based upon their sound judgment as to what would be just and proper under all of the circumstances.” Butler v. Townend, 50 Idaho 542, 298 P. 375, 376.
Appellants have furnished us with no case holding invalid a statute such as that which they attack on this appeal. The mere difficulty in supplying more definite proof as to the amount of damages suffered where the loss is nevertheless a real one, has never been made an excuse by any court for denying all recovery as appellants seek to have us do here. Indeed it is not uncommon for statutes to provide, where proof of pecuniary loss is inherently difficult, that the damages recoverable rest in the sound discretion of the jury. We know of no case holding a statute of that kind to be void.
Appellants’ other argument that the amount awarded by the court below was excessive is also untenable. In awarding the $10,000, the trial court had in mind the fact that the Oregon court had sustained an award of $5000 in the case of the seven year old child in Lane v. Hatfield, supra. That was in 1943. The Oregon court there spoke of the speculative nature of appraising the damages and alluded to the fact that this girl might attain her majority by marriage before she became 21 years of age. The court below took into consideration the fact that the decedent here was a boy, who, it could be inferred, would have greater earnings than the girl. The court also took into account the decrease in the purchasing value of the dollar since the time of the Hatfield case. This the court had the right to do. Southern Pacific Co. v. Zehnle, 9 Cir., 163 F.2d 453, 454. The amount which we here approve is the same as that approved in Smith v. Philadelphia Transp. Co., 3 Cir., 173 F.2d 721, 727, where the damages were from the death of a five year old child, and where the Wrongful Death statute was substantially the same as the Oregon Act.
The judgment is affirmed.
. “§ 30.020. Action by personal representative for wrongful death. When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the decedent, for' the benefit of the surviving spouse and dependents and in case there is no surviving spouse or dependents, then for the benefit of the estate of the decedent, may maintain an action' against the wrongdoer, if the ' décedent might have main- '■ tained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. Such action shall be commenced within two years after the . death, and damages therein shall not exceed $20,000, which may include a recovery for all reasonable expenses paid or incurred for funeral, burial, doctor, hospital or nursing services for the deceased.”
. See for example California Civil Code, § 3339 — “The damages for seduction rest in the sound discretion of the jury.” | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. | Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? | [
"Issue not discussed",
"The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent",
"The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant",
"The resolution of the issue had mixed results for the appellant and respondent"
] | [
1
] | songer_constit |
ATLAS TRUCK LEASING, INC., Plaintiff, Appellee, v. FIRST NH BANKS, INC. (Formerly First Bancorp of New Hampshire, Inc.), Defendant, Appellant.
No. 86-1565.
United States Court of Appeals, First Circuit.
Argued Oct. 8, 1986.
Decided Jan. 12, 1987.
Mark Weaver with whom James E. Higgins and Sheehan, Phinney, Bass & Green Professional Association, Manchester, N.H., were on brief for defendant, appellant.
Gary S. Matsko with whom Judith Ash-ton and Davis, Malm & D’Agostine, Boston, Mass., were on brief for plaintiff, appellee.
Before COFFIN, BREYER and TORRUELLA, Circuit Judges.
BREYER, Circuit Judge.
Atlas Truck Leasing, Inc. (Atlas) sued First NH Banks, Inc. (FNH) for unlawfully terminating a Vehicle Lease Agreement. The jury found for the plaintiff, and awarded Atlas $50,000. FNH appeals. We affirm.
The facts of the case may be summarized briefly. Atlas is a corporation that leases vehicles. It is owned by the Trans-Lease Group, a Massachusetts Business Trust. FNH is a bank holding company that sends documents back and forth among its various offices. In contracting with Trans-Lease for a document courier service, FNH signed a Vehicle Lease and Service Agreement that governed the leasing of vehicles by Atlas to FNH. The Lease Agreement says that FNH, the lessee, “agrees to hire” from Atlas certain specified vehicles “for a term beginning on the date each such VEHICLE is ready for ... service ... and continuing until terminated, as hereinafter provided____” The termination provision of the Lease Agreement says:
This agreement may be terminated wholly or in part by either LESSOR or LESSEE on any anniversary date of the last vehicle installed in the customer service, upon sixty (60) days written notice thereof to the other party of its intent to terminate.
After Atlas had provided vehicles under the lease for about 17 months, FNH terminated the courier service with Trans-Lease and refused to accept cars from Atlas.
Atlas sued for breach. It argued that FNH terminated the lease nearly two months after the anniversary date indicated in the quoted provision; thus, the agreement, by its terms, should have remained in effect until the next anniversary. The jury found (contrary to FNH’s claims) that the Lease Agreement constituted a binding contract between the parties, and that FNH had breached that contract. Based on evidence of Atlas’ earnings during the last twelve months that it had leased vehicles to FNH, the jury found that Atlas had suffered $50,000 of lost profits.
FNH does not appeal the jury’s finding that the Lease Agreement constituted a binding contract. Rather, it makes three less central claims. It says the district court erred: 1) in denying FNH’s motion in limine to exclude certain exhibits and testimony, 2) in submitting the issue of damages to the jury, and 3) in instructing the jury on foreseeability of damages and on the effect of income taxes on the damage award. We consider each of these arguments in turn.
1. FNH claims that the district court abused its discretion when it denied FNH’s motion to exclude from evidence certain financial records and related testimony relevant to damage calculations. FNH says that the evidence should have been excluded because Atlas did not furnish the exhibits to the Clerk’s office at least one week before trial, as required by New Hampshire District Court Rule 16(a); instead it delivered them 5 days before trial. FNH adds that late delivery materially prejudiced its defense.
The trial court, however, has wide latitude in formulating pretrial orders and in imposing sanctions on parties who fail to comply with procedural rules. See Fed.R.Civ.P. 16; N.H.DistR. 2(a). We will reverse its determination only if the ruling results in clear injustice. See 8 C. Wright & A. Miller, Federal Practice and Procedure §§ 2006, 2284 (1970), and cases there cited. We can find no such injustice here because the exhibits in question were filed only two days late. The trial court granted FNH an additional half-day to review the late exhibits and Atlas provided FNH with work papers to assist FNH with its review. Under these circumstances, the trial court did not exceed the scope of its legal power to decide whether or not to exclude the evidence. Cf. Johnson v. H.K. Webster, Inc., 775 F.2d 1, 4-5 (1st Cir.1985) (upholding a ruling enabling a party to amend its list of expert witnesses seven days before trial); Clark v. Pennsylvania R.R. Co., 328 F.2d 591 (2d Cir.), cert. denied, 377 U.S. 1006, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964) (upholding the admission of testimony by witnesses not named in the pre-trial order when the judge offered counsel an adjournment to prepare for cross-examination).
2. FNH also contends that the trial court should not have submitted the issue of damages to the jury because the amount of damages was not foreseeable. Cf. Hydraform Products Corp. v. American Steel & Aluminum Corp., 127 N.H. 187, 197, 498 A.2d 339, 345 (1985) (holding that one who breaches a contract is liable for reasonably foreseeable damages); Petrie-Clemons v. Butterfield, 122 N.H. 120, 124, 441 A.2d 1167, 1170 (1982) (same); Crawford v. Parsons, 63 N.H. 438, 444 (1885) (same). It says that damages were not reasonably certain to occur because the Lease Agreement, (which required Atlas to keep vehicles available for FNH’s use) provided for payment on the basis of per mile use, but it did not say how much FNH had to use the vehicles. FNH told the jury that it might have hired the vehicles from Atlas and just have left them sitting in the parking lot. Tr. 3-44—3-45. Left idle, the cars would produce no income for Atlas because FNH owed Atlas money only if the vehicles were used. If FNH could refuse to use the vehicles, then Atlas could not reasonably foresee damages from termination of the lease.
In fact, however, FNH was legally obliged to use the vehicles. Under New Hampshire law, every contract carries an implied covenant of good faith and fair dealing. See Albee v. Wolfeboro R.R. Co., 126 N.H. 176, 179, 489 A.2d 148, 151 (1985) (citing Seaward Constr. Co. v. Rochester, 118 N.H. 128, 383 A.2d 707, 708 (1978)). FNH would violate this covenant if it were unreasonably not to use the vehicles in order to deprive Atlas of the contract’s benefits. See Uproar Co. v. National Broadcasting Co., 81 F.2d 373, 377 (1st Cir.), cert. denied, 298 U.S. 670, 56 S.Ct. 835, 80 L.Ed. 1393 (1936). FNH therefore had to make reasonable good faith efforts to use Atlas’ vehicles to satisfy the banks’ ordinary needs. If FNH violated its obligation, Atlas would foreseeably suffer damages.
The jury could reasonably assess Atlas’ damages by looking to the time period when FNH lived up to its contractual obligation to act in good faith. It could have decided that Atlas would have earned profits roughly comparable to what it earned in that prior comparable period. It is, after all, common practice to estimate lost future profits by examining profits earned in the comparable past. See Van Hooijdonk v. Langley, 111 N.H. 32, 34, 274 A.2d 798, 799 (1971); 11 Williston on Contracts § 1346A (3d ed. 1968). The jury had ample evidence of the profits earned by Atlas during the 16 months before FNH said it wanted to terminate the contract. It also had evidence that FNH’s needs for courier services remained essentially unchanged. The jury could calculate probable lost profits with reasonable certainty. Therefore, the court was legally entitled to submit the issue of damages to the jury. See Hydraform, 127 N.H. at 197, 498 A.2d 345 (citing Whitehouse v. Rytman, 122 N.H. 777, 780, 451 A.2d 370, 372 (1982)); Van Hooijdonk, 111 N.H. at 34, 294 A.2d at 799-800.
3. Finally, FNH asserts that two of the court’s jury instructions were erroneous. It says that the court should have given the following requested instruction on damage foreseeability:
If Plaintiff Atlas is entitled to any damages in this case, they [sic] may only be granted compensation for those injuries the Defendant FNH had reason to foresee as a probable result of its breach of a contract with Atlas. Emery v. Caladonia Sand & Gravel Co., 117 N.H. 441, 446 [374 A.2d 929] (1977).
The court, however, actually instructed the jury as follows:
Profits that might reasonably be anticipated may be recovered as damages. You may determine lost profits based on evidence of the prior profits Atlas had under the agreement.
Damages ... including those of lost profits do not have to be proved with mathematical certainty, but they may not be wholly speculative. If profits were reasonably certain to result they may be awarded by the jury.
We can find no legally significant difference between the two instructions. We realize that the court spoke of damages that might “reasonably be anticipated” while FNH wanted it to use the words “reason to foresee” but, in the context of this case, that seems a distinction without a difference. FNH also tells us that the court instruction omitted details of the Emery holding, but FNH’s instruction also omitted those same details. In any event, we believe that the charge adequately reflects New Hampshire’s rule on contractual damages — at least insofar as the facts of this case are concerned. See, e.g., PetrieClemons, 122 N.H. at 125, 441 A.2d at 1171 (“We will uphold an award of damages for lost profits if sufficient data existed indicating that profits were reasonably certain to result.”); M.W. Goodell Construction Co. v. Monadnock Skating Club, Inc., 121 N.H. 320, 323, 429 A.2d 329, 331 (1981) (noting that “the law does not require ‘mathematical certainty’ in computing damages”); Zareas v. Smith, 119 N.H. 534, 538, 404 A.2d 599, 601 (1979) (holding that “consequential damages that ‘could have been reasonably anticipated by the parties as likely to be caused by the defendant’s breach’ ” may be awarded to plaintiff) (quoting Hurd v. Dunsmore, 63 N.H. 171, 174 (1884)).
FNH also complains about the fact that the trial court instructed the jury on the effect of income taxes on the damage award. The court told the jury:
In determining damages for lost profits you are not to consider income tax, because if there is an award of damages the plaintiff will have to pay taxes on that award.
This was a correct statement of the law. See Kennett v. Delta Air Lines, Inc., 560 F.2d 456, 462-63 (1st Cir.1977); McLaughlin v. Union-Leader Corp., 100 N.H. 367, 371, 127 A.2d 269, 273 (1956), cert. denied, 353 U.S. 909, 77 S.Ct. 663, 1 L.Ed.2d 663 (1957). And the judge might reasonably have believed the circumstances called for the instruction. FNH raised the tax issue when it asked witnesses several times whether or not tax consequences were considered in calculating profits. The instruction simply eliminated possible jury confusion about the role taxes should play in assessing damages. We find no legal error in any of the cited instructions.
The judgment of the district court is
Affirmed. | What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". | What federal agency's decision was reviewed by the court of appeals? | [
"Benefits Review Board",
"Civil Aeronautics Board",
"Civil Service Commission",
"Federal Communications Commission",
"Federal Energy Regulatory Commission",
"Federal Power Commission",
"Federal Maritime Commission",
"Federal Trade Commission",
"Interstate Commerce Commission",
"National Labor Relations Board",
"Atomic Energy Commission",
"Nuclear Regulatory Commission",
"Securities & Exchange Commission",
"Other federal agency",
"Not ascertained or not applicable"
] | [
14
] | songer_adminrev |
UNITED STATES of America, Appellee, v. Richard H. MURPHY, Defendant, Appellant.
No. 72-1182.
United States Court of Appeals, First Circuit.
Heard May 7, 1973.
Decided June 13, 1973.
Brian T. Callahan, Medford, Mass., by appointment of the Court, for appellant.
James B. Krasnoo, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
McENTEE, Circuit Judge.
Defendant, Richard H. Murphy, a federal meat inspector convicted on ten counts of accepting money from a person, firm, or corporation engaged in interstate commerce in violation of 21 U.S. C. § 622, challenges these convictions on thirteen grounds. We discuss only those which are either not resolved by United States v. Seuss, 474 F.2d 385 (1st Cir. 1973), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973), or are not clearly frivolous.
In July 1968 defendant, on the first day of his assignment at State Beef Company, requested payment of $25 per week in exchange for more lenient enforcement of the statutes and regulations which governed the firm’s operations. State Beef’s owner, Abraham Cohen, testified that he paid defendant this sum every Friday from September 11 to October 15, 1968, the period specified in the indictment. In January 1970 defendant was reassigned to Blue Star Kosher Products, Inc. Once again, on his first day in the plant, he informed Blue Star foreman George Goldrich that he expected to be paid, this time, $50 per week. When Goldrieh protested that he did not possess the authority to authorize such payments, Erich Rosengarten, the plant manager of the firm that owned Blue Star, was consulted and eventually payments of $35 per week were agreed upon. Rosengarten testified that he arranged to have defendant paid this sum once each week from April 1 to May 12, 1970, the period in question.
On this background defendant first challenges part III of 21 U.S.C. § 622 on equal protection grounds. Specifically, he contends that this provision draws an impermissible distinction between two similarly situated groups, meat inspectors and meat packers, by making it an offense for inspectors to accept or receive any item of value, irrespective of the intent of the donor, while creating no corresponding offense covering packers. The difficulty with this argument, however, lies in its premise since it is clear that in enacting The Meat Inspection Act of 1907, 34 Stat. 1264, of which the predecessor of § 622, 21 U.S.C. § 90, was a part, Congress was justified in drawing distinctions between the group of federal employees who were to be charged with the enforcement of the Act and the other participants in the meat processing industry. As noted in Seuss, supra at 388 of 474 F.2d, the aim of Congress in enacting this legislation was “to insure that meat products sold to the consumer [would] be clean and safe. [In implementing this policy a] system of federal inspection was created and the inspectors subjected to strict regulation lest their corruption — or the appearance of it — undermine the quality of meat or the public’s trust in their supervision of meat quality.” It is of course entirely reasonable for Congress to decide that the federal inspector — the one with ultimate power to control the products leaving the plant and the one imbued with a substantial public trust — should be treated more strictly than private parties whose offers of money can be refused, who do not have the final word on the produce going to the market, and who may be lowly employees with little power and perhaps are acting without corporate direction. Since the statutory configuration defendant complains of clearly bears a rational relation to the achievement of these legitimate and laudatory legislative goals, we cannot agree that the statute offends the equal protection guarantees implicit in the fifth amendment.
Defendant next contends that the trial court erred in denying in whole or in part his pre-trial motions for a list of all persons expected to testify at trial, for disclosure of any immunity awarded the witnesses who either testified before the grand jury or were expected to testify at trial, and for the production of all exculpatory material in the possession of the government. We find the trial court’s disposition of each of these motions to have been appropriate.
First, with regard to defendant’s request for disclosure of the government’s trial witnesses, since criminal defendants are ordinarily not entitled to this information, see United States v. Glass, 421 F.2d 832, 833 (9th Cir. 1969), and cases cited, it is settled that this motion was addressed to the discretion of the trial court. Given the simple nature of the underlying factual situation in the instant case and the fact that three of the government’s four witnesses were named in the indictment, this discretion was not abused in the denial of this motion. Defendant’s motion regarding transactional immunity was granted in part and denied in part, disclosure being required only at the time of trial and only as to those witnesses who actually testified. This disposition was also correct since, before trial, as defendant recognizes, he made no showing of any compelling need for this information. See Walsh v. United States, 371 F.2d 436 (1st Cir.), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967). Nor do his further contentions that such compelling need became apparent at trial and that he suffered prejudice and was deprived of procedural due process by the belated disclosure of this data withstand scrutiny. As a review of the record reveals, trial counsel never complained that he lacked an adequate opportunity to examine the grand jury testimony of the government’s witnesses during trial and, as is abundantly clear from the transcript, full and skillful use of this testimony was made on cross-examination. Finally, the denial of defendant’s motion for the production of exculpatory material on the government’s representation that it did not possess any such evidence and that any that it did acquire would be made available was also proper. Again, aside from a single allegation that Rosengarten’s testimony should have been turned over because it demonstrated that in making payments he was acting as an individual and not as an agent of Blue Star, a point which is clearly without merit in light of our conclusion in Seuss, swpra, at 390 of 474 F.2d, that no corporate policy need be established to sustain a § 622 violation, defendant raises no other allegation of government failure to make a required disclosure.
Defendant’s next series of complaints are directed to the sufficiency of the government’s proof or to events which occurred at trial. He argues first that the trial court erred in receiving evidence which indicated that he had committed a number of criminal acts, i. e., had accepted a number of illegal payments, in addition to those for which he was being tried. Mindful of the rule that evidence of offenses which are wholly independent of those charged is generally inadmissible, see Fish v. United States, 215 F. 544 (1st Cir. 1914), we note initially that the evidence in question might well have been admissible under exceptions to this rule either to show that defendant acted knowingly or wilfully in accepting these payments or because it was “so blended or connected with the [evidence of the offenses] on trial . . . that proof of one incidentally involve [d] the other. .” Green v. United States, 176 F.2d 541, 543 (1st Cir. 1949), quoting Braeey v. United States, 79 U.S.App.D. C. 23, 142 F.2d 85, 87, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944). Additionally, however, on the two occasions when this evidence went in, defendant raised no objection. Especially in view of the obvious nexus between this evidence and the offenses on trial, we cannot say that these admissions constituted plain error.
Defendant further suggests that the government’s evidence was insufficient to establish that State Beef and Blue Star were engaged in interstate commerce. This argument is not persuasive, however, in view of the testimony of State Beef’s owner that he purchased meat in New Hampshire and sold it outside Massachusetts and of Blue Star officials that they made purchases in Maine and New Hampshire and sales in Connecticut and New York. Defendant’s further attempt to characterize this evidence as de minimis and therefore inadequate must also fail since to require proof of an extensive participation in interstate commerce would be to place an unduly restrictive burden on the scope of § 622.
The prosecution’s summation is the target of defendant’s next attack. In this regard, he argues, in particular, that the government’s repeated references to him as a “bribe taker” or “money taker” and its allusions to the potential impact “accommodating” meat inspection might have on the quality of meat sold to consumers were so prejudicial that he was deprived of a fair trial. This argument is unavailing for at least two reasons. First, the government is entitled to include an accurate summary of the evidence in its closing statement, see United States v. Miceli, 446 F.2d 256, 260 (1st Cir. 1971), and nothing which defendant has called to our attention indicates that this privilege was abused in the instant case. Unlike De-Christoforo v. Donnelly, 473 F.2d 1236 (1st Cir. 1973), on which defendant relies, the prosecutor did not “testify” as to his personal opinion of defendant’s guilt or innocence. Second, since no objections were taken to the remarks in question, it is clear, under the circumstances, that this summation did not constitute plain error.
Defendant takes issue with the trial court’s instruction in two respects. Without having requested an instruction on either issue, he asserts that the court committed plain error by failing to make mention of the transactional immunity granted the government’s witnesses and by failing to instruct that in order to convict the jury must find a connection between the payments made and defendant’s official duties, the so-called “connection requirement” instruction of United States v. Seuss, supra. Little need be said with regard to the absence of the instruction on the immunity issue other than to note first, that defendant raised no objection to the court’s instructions on this ground, second, that he did make full use of this information on cross-examination, and finally, that the court did direct the jury to consider the witnesses’ “intelligence, motives, . . . state of mind, . . . demeanor and manner” in assessing their credibility. The absence of the connection requirement instruction also gives us little pause. Aside from the fact that this case was tried ten months before our decision in Seuss, thus making the omission of this instruction understandable, the evidence that these payments were made in connection with the performance of defendant’s official duties was abundant. Given the fact that defendant demanded payments on his first day at both packing plants and even specified at State Beef that for $25 per week he would be less forceful in the performance of his responsibilities as an inspector, the court’s failure to give this instruction did not constitute plain error.
Finally, defendant’s request that we review his sentence is without merit. The three year term he received was clearly within statutory limits. His allegation that his receipt of the harshest sentence of all those given meat inspectors prosecuted in the District of Massachusetts in the recent spate of such trials was a denial of equal protection, being unequal or selective enforcement, is substantiated by nothing other than a list of the sentences meted out. In the absence of any affirmative showing of impropriety, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), we cannot sustain this claim of unequal enforcement.
Affirmed.
. Part III of § 622 provides :
“[A]ny inspector . . . authorized to perform any of the duties prescribed . who shall receive or accept from any person, firm, or corporation engaged in commerce any gift, money, or other thing of value, given with any purpose or intent whatsoever, shall be deemed guilty of a felony and shall, upon conviction thereof, be summarily discharged from office and shall be punished by a fine not less than $1,000 nor more than $10,000 and by imprisonment not less than one year nor more than three years.”
. The denial of defendant’s request for a list of all persons called before the grand jury who were not sworn as witnesses was also proper since defendant demonstrated no compelling need for this data. See Walsh v. United States, 371 F.2d 436 (1st Cir.), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967).
. This aspect of Seuss also disposes of the claim, raised for the first time on appeal, that the counts of the indictment fail to state an offense because only individuals are identified as donors and not corporations engaged in interstate commerce or individuals acting on behalf of such corporations.
. From our review of the transcript we do not agree with defendant’s assertion that evidence of the offenses not on trial came into the record on three additional occasions. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. | Are there two issues in the case? | [
"no",
"yes"
] | [
0
] | songer_two_issues |
UNITED STATES of America, Plaintiff-Appellee, v. Joseph C. GALLO; Frederick Graewe; Hartmut Graewe, Kevin Joseph McTaggart; Angelo A. Lonardo, Defendants-Appellants.
Nos. 83-3288 to 83-3290, 83-3292, 83-3339, 83-3803 and 83-3804.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 8, 1984.
Decided May 29, 1985.
Alan P. Caplan (argued), Cleveland, Ohio, for Joseph C. Gallo and Kevin Joseph McTaggart.
Donna M. Congini, Cleveland, Ohio, William C. Bryson (argued), Washington, D.C., Steven R. Olah, Donna M. Congeni, Gregory B. English, Asst. U.S. Attys., Cleveland, Ohio, for the U.S.
Edward F. Marek (argued), Public Defender, Cleveland, Ohio, for Frederick Graewe.
Paul Mancino, Jr. (argued), Cleveland, Ohio, for Hartmut Graewe.
Leonard W. Yelsky (argued), Cleveland, Ohio, for Angelo Lonardo.
Before MERRITT, WELLFORD and MILBURN, Circuit Judges.
WELLFORD, Circuit Judge.
On appeal from their convictions on Racketeer Influenced and Corrupt Organization Act (“RICO”), Continuing Criminal Enterprise (“CCE”), and related counts, Joseph Gallo, Frederick (“Fritz”) Graewe, Hartmut (“Hans”) Graewe, Kevin McTaggart, and Angelo Lonardo, raise a total of thirty-five issues in the four appellant briefs filed. There are overlapping issues, however, and we will address how the issues relate to each of the appellants.
Following a jury trial in the United States District Court for the Northern District of Ohio (Manos, J.), the five appellants were convicted on a variety of charges relating to their participation in murder, narcotics distribution, and gambling in the Cleveland, Ohio area. The jury found appellants Gallo, Hans Graewe, and McTaggart guilty of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (count 1). The jury also found those three appellants and Lonardo guilty of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (count 2). The jury further found all of the appellants, including Fritz Graewe, guilty of aiding racketeering through interstate travel, in violation of 18 U.S.C. § 1952 (counts 3 through 21), possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (count 35), and using the telephone to facilitate a narcotics offense, in violation of 21 U.S.C. § 843(b) (counts 40 through 48, 50 through 51, 53 through 55, and 57 through 58).I.
Gallo, Hans Graewe, McTaggart, and Lonardo all were sentenced to life imprisonment on the continuing criminal enterprise count. In addition, Gallo, Hans Graewe, and McTaggart received concurrent sentences of 20 years’ imprisonment on the racketeering conspiracy count. On each of the Travel Act counts, the district court sentenced each appellant to consecutive terms of five years’ imprisonment. On the cocaine possession count, the court imposed a consecutive sentence of 15 years’ imprisonment on appellants Gallo, Hans Graewe, and McTaggart, and 10 years’ imprisonment on appellant Fritz Graewe. For the unlawful use of the telephone counts, the court imposed consecutive four year terms on Gallo, Hans Graewe, McTaggart, and Lonardo; two years’ imprisonment on Fritz Graewe.
All five defendants appeal their convictions and the denial of their motions for new trial, which they filed while the appeal was pending.
I. FACTUAL BACKGROUND
We set out the facts in the light offered by the government and as apparently believed by the jury in reaching its verdicts.
Between 1978 and 1982, appellants and others conspired to control the businesses of gambling and narcotics distribution in the city of Cleveland, Ohio. During that period, they fashioned an agreement between rival criminal factions on the east and west sides of the city, whereby they would jointly control and profit from their control of criminal activities. The evidence indicates that Lonardo was one of the leading directors and investors in the profitable but illicit joint enterprise, that Gallo was a high-level supervisor, and that Hans Graewe, McTaggart, and Fritz Graewe were regular participants in various criminal activities of the enterprise.
The chief witness for the government was Carmen Zagaria, a co-conspirator and coordinator of the enterprise’s business activities. He testified in detail about the roles played by defendants and others in narcotics and gambling activities, as well as in violence and intimidation on behalf of the enterprise, which included at least seven murders during the four-year period covered by the indictment. The government called other co-conspirators as witnesses who testified about the criminal activities of the enterprise. The government introduced surveillance evidence and physical and wiretap evidence, which corroborate these witnesses’ testimony concerning murders and defendants' roles in gambling and narcotics activities.
In January, 1978, Zagaria started dealing in marijuana. He began with small quantities, buying marijuana in one pound lots and selling it by the ounce, utilizing his tropical fish store on Lorain Avenue in Cleveland as a base of operations. Early in 1978, Zagaria met with Keith Ritson, another marijuana dealer; Zagaria and Ritson agreed to cooperate by supplying each other with marijuana as needed. Ritson told Zagaria that McTaggart was selling cocaine and marijuana for him.
In May 1978, Zagaria sought to expand his marijuana business by finding investors for the business and by purchasing large quantities of marijuana in Florida. He agreed with Ritson to obtain marijuana in large lots, from which he would supply a portion of each shipment to Ritson for local distribution.
At about the same time, Hans Graewe told another co-conspirator, James Coppola, that he was looking for a place to invest some money to make a quick profit. Graewe told Coppola that he had succeeded in “ripping off” one Orville Keith for $20,-000 in a narcotics transaction. When Keith realized that he had been “ripped off,” he began trying to force Graewe to return his money. Graewe told Coppola that he intended not only to keep the money but also to kill Keith to prevent any further bother about it.
At Coppola’s suggestion, Graewe then invested $14,000 of the stolen funds in Zagaria’s marijuana business, and Zagaria agreed to pay him $1500 per week on this investment. In addition, Graewe’s brother, Fritz Graewe, agreed to sell marijuana for Zagaria. For the next four years, Fritz regularly purchased marijuana from Zagaria’s operation for resale; Hans also sold some of Zagaria’s marijuana, and he found other drug salesmen for Zagaria’s expanding marijuana business.
Several months later, Zagaria repaid $8000 to Hans who said that he was going to buy a farm with the money; in fact, he subsequently acquired a nearby farm. Several months later, Zagaria made another repayment on Graewe’s investment by supplying him an ounce of cocaine and an amount of cash. In addition to these payments, Zagaria paid regular installments to Hans as originally agreed.
Between 1974 and 1978, James Coppola worked as the overseer of a Barboot game located on Broadview Road in Cleveland. In that capacity, Coppola testified, he was working for the “west side” group, which included Ritson, Brian O’Donnell, McTaggart, and Danny Greene. The game came to an end in 1978 shortly after Danny Greene was killed in a bombing incident.
In the summer of 1978, Thomas Sinito aproached Coppola and proposed to start a Barboot game that would be jointly sponsored by the rival groups of the east and west sides of Cleveland. Sinito proposed to “split the money and try to stop all this fighting between the east side and the west side.” Sinito was a member of the “east side” group, which controlled gambling on the east side of Cleveland.
The representatives of the west side group, including Zagaria, Ritson, and Hans Graewe, agreed to go along with Sinito’s proposal to “end all the fighting and have a mutual gambling .operation which would benefit both sides of town, keep everybody happy, and split [sic] the profits.” Accordingly, Zagaria, Coppola, Hans Graewe, Ritson, and three other men arranged one night to close down the two competing games. They closed the first game without difficulty, and they took over a second game, which was then being run in downtown Cleveland. Zagaria and Ritson had sledge hammers with them when the group went to close the competing games, but Coppola told them, “We don’t need no sledge hammers. These are all old guys.” Coppola let the operator of the second game continue to run the game for the next week in order to try to recoup some of his expenses. He told the man, however, that “next week it is ours.”
After Coppola’s group took over the downtown Barboot game, the two groups split the profits from the game evenly; in addition, Sinito directed Coppola to give 10 percent of the proceeds to Carmen Basile, the owner of a bar on Cleveland’s west side. When Coppola questioned that decision, Sinito replied, “Don’t ask questions; just out of respect for the old man, we will give him 10 percent.”
In compliance with Sinito’s instructions, Coppola began giving Basile 10 percent of the receipts from the Barboot game. Basile, however, regularly charged that he was being cheated, and he and Coppola constantly bickered over the amount of Basile’s share. Ultimately, Sinito arranged a meeting to resolve the dispute. Appellant Gallo attended the meeting and told Coppola that Basile was going to supervise Coppola, and that Coppola would be Basile’s “underboss.” Basile subsequently referred to Gallo and Sinito as “two of my close associates from the east side.”
After Coppola, Zagaria, Hans, and their associates took over the Barboot game, Coppola met with Sinito each week to divide up the proceeds from the game. Soon, McTaggart began delivering the “east side’s” share of the Barboot money to Sinito. Although McTaggart was not a full partner in the Barboot game, he was regularly given a share of the Barboot receipts.
In August of 1978, Sinito asked Coppola if he knew someone who could handle a “contract” to kill one Harvey Rieger. Sinito said, “We have to get rid of this guy because he knows too much and he is getting ready to go to trial.” Coppola then checked with Keith Ritson, who said that he could handle the contract. Coppola reported Ritson’s willingness to perform the contract, and Sinito gave Coppola a $2500 advance to give to Ritson for the job. Ritson, however, made no effort to kill Rieger, and as a result, Coppola had to pay back the $2500 advance that Sinito had given him. Sinito then told Coppola that Ritson had defaulted on the contract, and that Coppola “ought to take care of that situation.”
During the same period, Ritson told Zagaria that he wanted to attend a clam bake that was being held by members of the east side group, so that he could “kill a few of his old enemies.” In particular, Ritson said he wanted to kill James Licavoli and Angelo Lonardo. At about the same time, Ritson suggested that Hans and Zagaria should kill Sinito, but Zagaria refused.
Zagaria, Coppola, and Hans met on a number of occasions to discuss their problems with Ritson. They suspected that Ritson was an informant and feared retaliation if he tried to kill Sinito. In addition, Hans wanted to eliminate Ritson because he wanted to take over Ritson’s share in the Barboot game, and because Ritson had “beat him” in a cocaine deal the previous spring. Ultimately, the three men decided to kill Ritson, and they made plans accordingly.
On November 16, 1978, Ritson was invited to Zagaria’s pet store on a pretext. Hans and Zagaria were waiting for him there, and Hans shot and killed Ritson after his arrival. After shooting Ritson, Hans commented, “It looks like I’m back in the Barboot game.” Hans then called his brother Fritz to borrow a truck to move Ritson’s body. Hans and Zagaria dumped Ritson’s body in a local quarry. Hans later told Zagaria that he and his brother Fritz had run a file through the handgun that Hans had used to kill Ritson to avoid identification of the gun as the murder weapon. Coppola assured Sinito that the murder of Ritson had been carried out. Sinito subsequently told Zagaria that he had informed Lonardo that Zagaria was responsible for Ritson’s killing. When Zagaria later met Lonardo at a party, Lonardo told him, “I heard a lot of good things about you,” and advised him to “be careful.”
In 1979, the conspirators arranged to open a craps game on the west side of town. As in the case of the Barboot game, they agreed to split the proceeds between the west side and east side groups. Zagaria, Hans, McTaggart, and Coppola agreed to take one-half of the game proceeds on behalf of the west side, while Sinito and Gallo agreed to sponsor the game on behalf of the east side.
This new gambling operation was run out of a house in Linndale, Ohio, as arranged by Fritz and others. Gallo arranged for parking in the area with an associate. This game, however, was closed by the police shortly after it began operations.
One of the operators of the game was Billy Bostic, a west side gambler. Bostic made $2500 on the game while it was in operation, but he claimed to have spent a large sum on the improvements to the house. He therefore refused to share the proceeds with the partners in the game. Zagaria subsequently discussed Bostic's actions with Gallo and Sinito, who also recounted problems with Bostic and several of his associates; Gallo commented that “maybe they are getting their little organization bigger than we thought.” Several of Bostic’s associates from the east side, they said, were making accusations about Licavoli and Lonardo and causing trouble. Sinito and Gallo then told Zagaria that Bostic was “a west side problem” and that Zagaria should “take care of your west side problems ... contact your people and take care of this problem.” When Zagaria asked about Bostic’s three associates from the east side, Gallo and Sinito said that they would take care of their part of the problem, which was an east side problem. Gallo then said that he would offer $50,000 to anyone on the west side who would kill the three men associated with Bostic.
Zagaria later discussed Bostic with Hans, and in June of 1980, Hans and McTaggart lured Bostic into the basement of Zagaria’s pet fish store, where they shot and killed him. At Hans’ direction, Fritz then brought Hans his “surgical tools” — a meat cleaver and a large knife — which were used to dismember Bostic’s body before disposal of his remains.
Following the failure of' the Linndale gambling effort, Zagaria began to suspect that the operators of the Barboot game were cheating him and his partners. With the blessing of Gallo and Sinito, and with the assistance of Hans and McTaggart, Zagaria reorganized and directed the operation of the game. From June 1980 to early 1981, Zagaria ran the game, meeting with McTaggart, Hans, and Coppola on a daily basis, during which period the game was highly profitable.. Out of these gambling proceeds, Zagaria paid operating expenses and 10 percent of the gross receipts to Carmen Basile. Remaining profits were divided with representatives of the east side, Gallo and Sinito. In addition, Zagaria regularly gave McTaggart $50 to $100 per week from the Barboot receipts.
In the fall of 1980, Sinito and Gallo asked Zagaria to let an east side representative, Phil Bonadonna, work at the Barboot game. Zagaria and Hans agreed to put Bonadonna to work at the game, if Bonadonna could bring in customers. Basile opposed it, and complained to Lonardo about Bonadonna. Zagaria spoke with Sinito and Lonardo about the matter, and Sinito told Zagaria to “respect Carmen Basile,” even though Basile was giving them “a headache over the Barboot game.” Lonardo later reiterated this instruction, directing Zagaria to “just respect Carmen Basile and don’t pay him no attention and at this time just respect him,” but told Zagaria to “keep the kid [Bonadonna] working.”
Prior to his death, Ritson told Zagaria that McTaggart was one of his marijuana and cocaine “customers.” After Ritson’s murder, McTaggart obtained his cocaine and marijuana from Coppola, supplied by Zagaria. Ultimately, McTaggart arranged to obtain his supply of drugs directly from Zagaria, for distribution to his own customers. Zagaria then regularly delivered substantial quantities of marijuana and cocaine to McTaggart.
As the drug business expanded, Zagaria began to use a crew of assistants to obtain drugs in Florida and to deliver them to Cleveland. One of Zagaria’s assistants testified that he began working for Zagaria in the fall of 1978, and that he soon became a regular “runner” for Zagaria, obtaining marijuana and cocaine in Florida and driving the loads back to Cleveland. In November 1978, Zagaria agreed to buy 100,-000 Quaalude (methaqualone) tablets from Sinito, paying $175,000 for them upon resale.
Sinito subsequently arranged to sell bottles of illegally obtained prescription pills to Zagaria for $100 per bottle. The pills included Quaalude and Dilaudid tablets as well as a variety of barbiturates. Zagaria continued purchasing the pills on a regular basis for the next two years. He met with Sinito each week to make satisfactory arrangements.
In February of 1979, Sinito asked Zagaria whether he was interested in purchasing a large amount of marijuana. Sinito then arranged a meeting between Zagaria and appellant Gallo. Following the meeting, Zagaria had one of his assistants pick up the marijuana and deliver it to a “stash house” he operated on the west side of Cleveland. About a week later, Zagaria paid Gallo and Sinito approximately $60,000 for the marijuana thus supplied.
Shortly thereafter, Gallo and Sinito offered to sell a larger quantity of marijuana to Zagaria. Zagaria purchased the marijuana for approximately $225,000. At that time, Gallo and Sinito proposed to Zagaria that they had some “connections” in Florida from who Zagaria could obtain marijuana. Following that discussion, Sinito and Zagaria, together with several of Zagaria’s associates, traveled to Florida to buy marijuana, but were unable to consummate a deal.
In May of 1979, Gallo and Sinito agreed to invest $25,000 in Zagaria’s marijuana business; they agreed that in exchange for their investment, Gallo and Sinito would share in the profits from the venture. That night or the next day, Zagaria sent one of his runners to Florida to purchase marijuana with $35,000 of his own money and the $25,000 Gallo investment. That transaction was followed by a series of marijuana purchases by Zagaria and his associates, using funds provided by Gallo and Sinito. Every week for the next two years, Zagaria met with Gallo and Sinito to discuss their marijuana operations and to divide the profits from this ongoing venture. By August of 1979, Zagaria was paying Sinito and Gallo between $2000 and $2500 per week on their investment. Gallo and Sinito then invested another $25,000 in the venture with Zagaria.
In September 1979, Zagaria sent his assistant, Donn Newman, to Florida on three or four occasions to acquire marijuana. Zagaria would have a runner assistant pick up the marijuana and deliver it to one of his “stash houses.” Zagaria would then break the marijuana down into one-pound bags for delivery to his dealers.
In October, Newman took $100,000 to Florida to buy marijuana, but $85,000 of the money was stolen by a drug supplier there. When told, Gallo suggested sending McTaggart to Florida to find and to kill the thief. The stolen money, however, was never recovered, and Zagaria looked to Gallo and Sinito for refinancing the narcotics business. Gallo and Sinito agreed to invest more money in the business, but they explained that while the first $25,000 investment had belonged to them personally, the second $25,000 investment had belonged to “the old timers,” indicating (to Zagaria) Lonardo. Since Zagaria was responsible for the loss of the $25,000 investment, he was required to pay interest of five percent per week on that money. For their further investment in his marijuana business, they required collateral. The new funds were stolen in a Florida rip-off as well. Zagaria reported the loss to Gallo and Sinito and told them, “We’re out of business.”
The next month, Zagaria went to a Cleveland restaurant frequented by Lonardo. Inside, Zagaria encountered Sinito and Lonardo, and spoke with Sinito, who indicated that with collateral, Lonardo would lend him $50,000. When Zagaria offered diamonds as collateral, Sinito returned to and consulted Lonardo; by a nod to Zagaria, Lonardo indicated agreement.
Zagaria then was directed to Gallo’s office; Gallo told him that Sinito was “next door picking up the money.” Shortly thereafter, Sinito arrived carrying $50,000 in a paper bag. Gallo and Sinito explained that a condition of the loan was that a representative of the “east side” would travel to Florida with Zagaria’s agent for the marijuana, and would handle the money. Zagaria paid interest of five percent per week on this new loan, in addition to that due on the prior loans, totalling about $5,000 in interest each week, and in addition to a share of the profits earned.
Zagaria began making interest payments to Gallo and Sinito shortly after the new infusion of funds. Between November 1979 and May 1981, he paid them approximately $340,000 in interest alone, and more than $1,000,000 as their share of the profits from the drug distribution operation, all in periodic cash payments. Often Zagaria would be. accompanied by his associates, McTaggart and Hans when he made these payments. Zagaria was responsible for buying and selling the marijuana, but Gallo and Sinito provided him with marijuana suppliers in Florida and dealers in the Cleveland area. Zagaria followed the procedure of sending a “runner” to Florida to purchase the marijuana, accompanied by an “east side” representative on the trip.
Zagaria would arrange to pick up the marijuana and place it in a “stash house,” where it would be weighed and packaged for distribution to the local dealers. Zagaria had as many as 30 runners working for him on various marijuana trips, each paid about $1,000 per trip.
Gallo was monitored in a phone conversation in December, 1980 with an associate. Gallo discussed selling 1,000 pounds of high-quality marijuana, which “we can pick up in Miami.” In the same conversation, Gallo commented that “We need a landing strip of about 6500 feet to import a load of about 12,000 pounds.” Zagaria, Gallo, and Sinito did not limit themselves to marijuana dealing; in addition, Zagaria paid Sinito between $90,000 and $100,000 for prescription items. He also paid Sinito and Gallo some $200,000 for Quaalude tablets and over $150,000 for cocaine.
In January of 1980, Zagaria traveled to Florida to try to reclaim some of the money that had been stolen from his drug runners. Gallo and Sinito donated Ronnie Anselmo, one of their associates, to serve as “muscle” for Zagaria’s efforts. Although Zagaria failed to get the money back, he was able to arrange additional large shipments of marijuana, both from Florida and from Atlanta, Georgia.
Early in 1980, Zagaria, Gallo, and Sinito flew to Jamaica and contacted a pilot who could fly marijuana into the United States. In addition, they arranged for access to an airstrip at which both marijuana and cocaine could be imported. Zagaria arranged to use an airstrip in Tennessee, where he said the local sheriff “was on our side,” adding “we could pay him and land a plane there just about any time we wanted: September of 1980, one of Zagaria’s runners had possession of a rental car used on one of the drug supply trips. Because the car had not been returned to the rental agency, the police seized the car and discovered that it contained narcotics, paraphernalia, and cocaine. In
McTaggart, who continued to obtain large amounts of marijuana and cocaine from Zagaria, had a number of dealers who worked under him, and whom he contacted on an almost daily basis. A McTaggart associate testified at trial that McTaggart regularly supplied cocaine and barbiturates to members of the Hell’s Angeles motorcycle group. Timothy Lindow, a McTaggart dealer, testified that he was looking for work when he got out of prison in early 1979, and that he had asked Coppola about any prospects. Coppola referred him to McTaggart, who agreed to let Lindow sell cocaine and Quaaludes for him. Lindow obtained cocaine and Quaaludes from McTaggart regularly until January 1980, when he was jailed for burglary. During the summer of 1979, however, McTaggart and Hans complained to Zagaria that Lindow owed money for drugs purchased and advised Zagaria they had to “put a little pressure” on Lindow.
After Lindow’s release from jail in 1980, Hans and McTaggart met with him, not knowing that Lindow had agreed to cooperate with the FBI. Although Lindow did not tell them about his FBI relationship, McTaggart nonetheless searched Lindow for a hidden recording device when they met, and threatened him by a reminder about “what would happen to people like Keith Ritson.” Hans added to those threats by reference to Lindow’s wife and children.
Allan Wysocki, involved with William Laszlo, one of Zagaria’s dealers in cocaine, was arrested without having paid Laszlo. When released in December 1980, Wyoscki was visited by Laszlo along with Hans. Laszlo demanded that Wysocki pay the cocaine debt. When Wysocki said he did not have the money, Hans informed Wysocki that he “definitely wouldn’t be walking around the next day” if he failed to find it. In addition to his services as an “enforcer,” Hans also recruited drug dealers for Zagaria’s operation, including in 1978, Larry Turner operator of a Zagaria “drug house.” Hans introduced Zagaria to Gary Young, who became a substantial marijuana dealer for Zagaria.
Like McTaggart, Hans also had frequent conversations with Zagaria concerning drug customers. For instance, Hans and McTaggart spoke to Zagaria about allowing a barmaid named “Utah” to purchase marijuana; Hans subsequently advised Zagaria about another customer who would purchase small amounts of marijuana and LSD.
Gallo and Sinito asked Zagaria in late 1979 if he were interested in joining “the Mafia.” Gallo and Sinito then described the organization of the group; that the head of the local Mafia had admitted no new members for 15 years, except themselves. Zagaria said that he had learned Basile was a “made member” of the Mafia, and that other members in Cleveland were Licavoli, the “boss”; Lonardo the under-boss; Gallo and Sinito; Anthony Liberatore; and a sixth member then living in Florida. JJasile had said he was the controller of the west side Mafia family, sponsored by Lonardo with respect to his 10 percent interest in the Barboot gambling. When Zagaria mentioned Lonardo’s name, Sinito and Gallo warned against ever using the name, but rather suggested that he refer to Lonardo and Licavoli as “the old-timers, the other guys, the old men, anything but their names.” In the fall of 1980, Gallo and Sinito spoke with Zagaria once again about joining the Mafia; Sinito intended to take Lonardo’s place, and they promised Zagaria that he would be put in charge of all the “soldiers.”
Curtís Conley was a competing cocaine distributor, resisting McTaggart’s and Hans’ pressures to join them. In April 1980, Ronnie Starks, a cocaine dealer for McTaggart and Zagaria reported that Conley wanted to kill them both. In June, Gallo told McTaggart about a contract on his life; at that point Zagaria and McTaggart decided to confront this serious threat. They pretended to purchase cocaine from Conley, but instead shot him to death and stole a pound of cocaine Conley then possessed. Zagaria advised Hans and Gallo about Conley’s elimination.
Zagaria also learned that another competitor, David Hardwicke, was trying to sell a kilogram of cocaine in the Cleveland area. Zagaria had dealt previously with Hardwicke. Zagaria and his associates decided to steal the kilogram. At a meeting with the Graewes and McTaggart, Fritz suggested choking Hardwicke with a coathanger. Zagaria agreed to share the proceeds from the sale of the stolen cocaine. The conspirators, under the pretext of purchasing the cocaine, lured Hardwicke into a car where Fritz strangled him with a coathanger, and the Graewes and McTaggart shot him. Zagaria took Hardwicke’s cocaine and sold it; he later shared the proceeds with each of the murder participants, as agreed. One of Hardwicke’s former partners subsequently gave Zagaria a $5,000 discount on a kilogram of cocaine for his service in disposing of Hardwicke.
In November of 1980, one of Zagaria’s associates suggested stealing two kilograms of cocaine from Kenny Odom, suspected of a previous substantial theft from Zagaria’s organization. Zagaria talked with Hans and McTaggart about this proposal, and they agreed. Fritz and Robert Dumas, another of their associates, would pose as narcotics officers, and would then steal the cocaine in the course of a pretended arrest. McTaggart, Zagaria, and Hans supported Fritz and Dumas at the scene of the subsequent theft. Zagaria paid each of the participants a substantial sum for their efforts in eliminating Odom.
In September 1980, Sinito and Gallo discussed with Zagaria another proposal to steal drugs from a principal supplier, Joseph Giaimo. Zagaria did not initially agree to go along with the plan since Giaimo was supplying large amounts of marijuana, cocaine and Quaaludes for him. Later Gallo and Sinito again discussed with Zagaria “ripping off” Giaimo. They finally agreed to steal a huge quantity of drugs from Giaimo and to kill him in the process. Accordingly, they arranged a marijuana purchase from Giaimo to occur at about the end of the year. They then sent a number of people to Florida to pick up a load of Giaimo’s marijuana. On the first trip, the runners returned from Florida with almost 800 pounds of marijuana.
Gallo and Sinito told Zagaria that from the proceeds of the sale of Giaimo’s drugs, Zagaria would be able to pay the entire $124,500 that he still owed to the two “old timers” and would be able to make an additional profit on the transaction. Zagaria contacted Hans and explained the plan to him. On the night of January 17, 1981, Zagaria and Hans lured Giaimo into Zagaria’s pet fish store and killed him, bricking the body into a basement wall.
The Giaimo theft enabled the conspirators to obtain marijuana worth more than $500,000, which was shared by the principal participants, including Zagaria, Sinito, Gallo, McTaggart, and the Graewes. Zagaria stored some of the marijuana at Fritz’s home until it could be distributed.
In December 1980, Sinito asked Zagaria if he “had room in the pond to put someone,” referring to one of Zagaria’s drug dealers, David Perrier, who was challenging Lonardo and Licavoli. According to Sinito, Perrier was claiming that he had “buried a lot of people for Lonardo and Licavoli” and wanted payment. Later the same month, Zagaria saw Sinito and Lonardo together at the same restaurant. Sinito approached Zagaria, recounted the problems with Perrier, and asked if Zagaria would help. Sinito told Zagaria that Lonardo was so angry at Perrier that he wanted to kill him personally. In response, Zagaria replied that he would help. Sinito returned to Lonardo, who then nodded to Zagaria. Sinito later reported to Zagaria that with the assistance of an east side “muscle” man, he had killed Perrier.
In February 1981, Zagaria met with Basile, who indicated he would tell Lonardo what good work Zagaria had been doing; “you should become a member, and Angelo would be proud.” Lonardo later congratulated Zagaria personally for his services; he told Zagaria, “I heard a lot of good things about you. You are doing a good job, and be careful.” Later that spring, Gallo again talked with Zagaria about joining the Mafia. If Gallo and Sinito were to be “bosses”, when Zagaria joined, he would be an “underboss.” Zagaria later told Hans about this conversation; Hans replied that Zagaria should join the group to learn “where everything is coming from.”
On May 12, 1981, law enforcement authorities conducted warrant-authorized searches of Zagaria’s premises and those of several of his associates. Narcotics, drug paraphernalia, and firearms were discovered at several of the locations, including the residences of Zagaria and the Graewes. Subsequently, Zagaria transferred the day-to-day responsibility for running the drug business to Donn Newman. In August of 1981, Zagaria attended a party for Basile, at which Lonardo was present. Lonardo asked Zagaria how McTaggart was doing. In addition, he informed Zagaria to be careful, and not to wear so much jewelry in public. Sinito later told Zagaria that Lonardo had complained about his wearing too much jewelry. In late 1981, during the course of the FBI investigation of the defendants, Hans told one of his associates about his plan to kill two investigating FBI agents. The FBI was also informed that Zagaria was threatening the agents’ lives. FBI agents subsequently interviewed Lonardo concerning those reported threats, and Lonardo told them “we wouldn’t want that kind of headache.”
Cleveland police officers conducted regular surveillance of several defendants for over two years during the pertinent period. Surveillance indicated that Lonardo met with Sinito on a daily basis at regular meeting places. Sinito and Gallo also met regularly, and Gallo joined Lonardo and Sinito at their meetings approximately once each week. Telephone records showed a huge volume of calls between telephones listed to Sinito and those listed to Zagaria, Gallo, and McTaggart. There were also large numbers of calls reflected between Zagaria and McTaggart, and between Hans and Zagaria, Fritz, and McTaggart. (The records indicated calls made to and from numbers attributed to the defendants above indicated).
Only Gallo, among appellants, testified and he admitted being aware of Zagaria’s narcotics operation, but denied participation in it. He claimed that his dealings with Zagaria involved gems and jewelry. Gallo explained that the comments about marijuana in the tape-recorded conversations referred to his effort to obtain marijuana for a friend who needed it for medicinal purposes.
Fritz offered evidence of witnesses that he held several jobs during the indictment period, and that he had no appreciable sum in his savings account during the time. Hans produced witnesses to discredit the Coast Guard reports regarding the Orville Keith incident. Lonardo called several witnesses who testified that Lonardo ate five days a week at a local restaurant that was the scene of the meetings about which Zagaria testified. They claimed they had never heard Lonardo discuss drugs, loansharking, or gambling while he was in the restaurant, and said that Lonardo was not present on several of the occasions to which Zagaria referred. McTaggart’s father testified that he was visiting with his son in the hospital on the day Conley was killed.
II. DISCUSSION
The five appellants herein raise over thirty issues, which they claim require reversal of their convictions. There is considerable overlap among appellants’ claims, and for clarity’s sake we will discuss the issues topically making reference as necessary to the facts pertaining individually to appellants’ arguments.
A. SUFFICIENCY OF THE EVIDENCE
Each appellant raises the issue of whether the government adduced sufficient evidence to support his conviction. In addressing the sufficiency of the evidence, this Court does not sit as a trier of fact in a de novo trial. Rather, the standard of review for claims of insufficient evidence 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) (emphasis in original); see also United States v. Chagra, 669 F.2d 241 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982). As the Supreme Court has stated: “It is for [jurors] and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story.” United States v. Bailey, 444 U.S. 394, 414-15, 100 S.Ct. 624, 636-37, 62 L.Ed.2d 575 (1980); United States v. Chagra, 669 F.2d 241, 257 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982). Furthermore, “[circumstantial evidence is entitled to the same weight as direct evidence in this calculus [of determining sufficiency].” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954). And, the uncorroborated testimony of an accomplice may support a conviction under federal law. See Krulewitch v. United States, 336 U.S. 440, 454, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., concurring); United States v. McCallie, 554 F.2d 770, 771-72 (6th Cir.1977); United States v. Ailstock, 546 F.2d 1285, 1287-88 (6th Cir.1976). We find each appellant’s contention of insufficient evidence of guilt to be without foundation.
1. Lonardo
Count 2 of the grand jury’s indictment in relevant part alleged that Lonardo: did engage in a Continuing Criminal Enterprise in that [he] did violate Title 21, United States Code, Section 841(a)(1) [distribution of Schedule I and II controlled
substances]____ Section 843(b) [illegal use of telephone] ... which violations were part of a continuing series of violations of said statutes undertaken by the said defendants in concert with at least five other persons, with respect to whom [Lonardo] occupied a position of organizer, supervisor, and manager____
It was a further part of the conspiracy that the defendants, co-conspirators, would traffic in illegal drugs on a daily basis____ Moreover, ALL DEFENDANTS supervised an operation pursuant to which legal prescription drugs ... were diverted to the clandestine market____
2. ANGELO LONARDO was a “Boss” in the Cleveland Organized Crime Family, would supervise the efforts of his two trusted subordinates, THOMAS SINITO and JOSEPH GALLO, in said narcotics enterprise conspiracy. These three also filled the roles of financiers and protectors of the enterprise from encroachment by other competing criminal groups. JOSEPH GALLO and THOMAS SINITO would strive to insulate ANGELO LONARDO from criminal liability by serving as the conduit through which his instructions were relayed to the other members of the conspiracy.
The central focus was Lonardo’s involvement in drug trafficking; in particular, his role as supervisor, protector, and, financier of the drug operation. Lonardo emphasizes his contention that the evidence, while perhaps indicating involvement in loan sharking and illegal gambling, does not support his involvement in the illicit drug traffic.
Evidence in the record, however, does support the government’s position that Lonardo was indeed a financier of Zagaria’s drug operations. In May of 1979, Zagaria received $25,000 from Joe Gallo and Tommy Sinito as an investment in his drug business. In August they invested another $25,000. In mid-October Zagaria’s courier in Florida had nearly $100,000 stolen by a drug supplier. When Zagaria went back to Sinito and Gallo, they informed him that the initial investment had been theirs, but the second investment had been borrowed from Lonardo. Zagaria borrowed an additional $24,500 from Gallo and Sinito; when he received the money he also received a “payment book” to reflect the weekly interest charged. Zagaria’s drug supplier in Florida again stole this money and Zagaria told Sinito and Gallo that “we’re out of business.”
Sinito responded that if he could come up with collateral, the “old-timers” would be willing to loan an additional $50,000 with “different specifications.” After Sinito informed Zagaria of this, during their meeting at a local restaurant, Sinito immediately conferred with Lonardo, also present at the restaurant. After Sinito conferred with Lonardo, he told Zagaria that “they agree, just come up with more collateral, and you will have the money,” Lonardo nodded to Zagaria in affirmance.
A few days later Gallo informed Zagaria that “Our buddy [Sinito] was next door picking up the money.” Sinito and Gallo gave Zagaria $50,000 but said that an “east side man” would have to accompany Zagaria’s man on his trips to Florida. When Zagaria made payments to Sinito and Gallo, he placed them in two bags, one for the “interest” and one for a share of the “profits.” Since “specifications” for the loan required the presence of an “east side man,” a jury reasonably may have concluded from these circumstances that Lonardo was the genesis of the “specifications” and the financier of the drug enterprise.
The evidence also indicates that Lonardo was the supervisor of Sinito, clearly implicated in the drug conspiracy. There was more than mere guilt by association (see United States v. Tolliver, 541 F.2d 958, 962 (2d Cir.1976), and Ong Way Jong v. United States, 245 F.2d 392 (9th Cir.1957)); the evidence forms the basis for a reasonable jury’s conclusion that Sinito’s actions were, in fact, orchestrated by Lonardo, and was therefore a valid basis for the CCE count conviction.
The Pinkerton doctrine set out in 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), makes each member of a conspiracy responsible for acts in furtherance of the conspiracy committed by his co-conspirators, and therefore considerably hurts Lonardo’s sufficiency argument. The court here properly instructed the jury on the theory urged by the government, See United States v. Murray, 492 F.2d 178, 187 (9th Cir.1973), cert. denied, 419 U.S. 942, 95 S.Ct. 98, 42 L.Ed.2d 87 (1974), citing United States v. Rosselli, 432 F.2d 879 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971). Since copious evidence against the other co-conspirators exists that shows their involvement in the CCE and in the underlying substantive offenses, the evidence only need show that Lonardo was also a member of the CCE conspiracy, and it was sufficient for that purpose:
while no direct evidence or formal agreement is necessary to establish a conspiracy ... there must be proof beyond a reasonable doubt that a conspiracy existed, that the accused knew it, and with that knowledge intentionally joined that conspiracy.
United States v. Bright, 550 F.2d 240, 241-42 (5th Cir.1977). There was sufficient evidence, giving favorable construction to the government’s proof, to satisfy this criterion.
The evidence supports circumstantially that Lonardo was a co-conspirator in the drug operation, and that he was a chief financier. Lonardo, on two separate occasions contributed significant sums of money to the drug operation. After Zagaria had been defrauded of nearly $100,000 in a drug deal; moreover, he met with Sinito in Lonardo’s presence, and Sinito said the “old timers” would be willing to lend $50,-000 as long as one of their own trusted men was present during any drug purchase, evidencing Lonardo’s actual knowledge of Zagaria’s illicit drug business. In sum, there is sufficient evidence from which a jury could find that Lonardo was a knowing financier and co-conspirator in the CCE.
Lonardo claims, however, that his single act of investing money in the drug operation is insufficient to make him part of the CCE. There is evidence, on the other hand, that Lonardo committed more than a single act in furtherance of the conspiracy, although the one “loan” to the drug operation would be sufficient to make him part of the CCE. We recognize that:
For a single act to be sufficient to draw an actor within the ambit of a conspiracy to violate the federal narcotics laws, there must be independent evidence tending to prove that the defendant in question had some knowledge of the broader conspiracy, or the single act must be one from which such knowledge may be inferred.
United States v. Sperling, 506 F.2d 1323, 1342 (2d Cir.1974), quoting United States v. DeNoia, 451 F.2d 979, 981 (2d Cir.1971). The single act in the instant case, however, is one from which knowledge of a broader conspiracy properly may well be inferred. Lonardo invested substantially in the drug enterprise, and he made the loan contingent upon one of his group’s men accompanying Zagaria’s man on his shopping expeditions. A network of dealers would reasonably be deemed necessary to dispose of Lonardo’s investment alone in illicit drugs. This single act of investing a considerable sum of money in the drug operation is therefore sufficient to prove that Lonardo was a member of the conspiracy. The Pinkerton doctrine helps close any gaps in the proof of Lonardo’s involvement in other substantive offenses.
In United States v. Alsobrook, 620 F.2d 139, 143-44 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980), we held that a jury must find that a defendant was aware of the interstate travel which provides federal jurisdiction under the Travel Act, 18 U.S.C. § 1952. See also United States v. Prince, 529 F.2d 1108, 1111-12 (6th Cir.), cert. denied, 429 U.S. 838, 97 S.Ct. 108, 50 L.Ed.2d 105 (1976); United States v. Barnes, 383 F.2d 287 (6th Cir.1967). That Lonardo required an east side man to accompany Zagaria’s courier to Florida to pick up his marijuana shipments, sufficiently evidences Lonardo’s awareness of the interstate travel involved in the CCE.
Lonardo relies also upon what is known as the “innocent purposes doctrine” in respect to the conspiracy charge. “To establish the intent essential to a conviction for conspiracy the evidence of knowledge must be clear and not equivocal. A suspicion, however strong, is not proof and will not serve in lieu of proof.” United States v. Gutierrez, 559 F.2d 1278 (5th Cir.1977), quoting United States v. Pruett, 551 F.2d 1365 (5th Cir.1977). In Gutierrez, $500 of marked money from a government purchase of drugs was found at the residence of the primary defendant’s uncle. The court determined that the mere presence of the money, without more, was insufficient to prove a conspiracy between the uncle and nephew because completely innocent actions, could have resulted in the presence of the money. The court, therefore, reversed the uncle’s conviction. See also United States v. Leon, 534 F.2d 667 (6th Cir.1976).
Lonardo argues that the evidence adduced against him is consistent with “innocent” behavior. Lonardo’s requiring his own trusted men to accompany Zagaria’s drug couriers as a condition to his making a substantial loan in the drug enterprise indicates more than innocent behavior with respect to the investment (or loan as the case may be). Sufficient evidence, therefore, supports Lonardo’s conviction on all substantive counts.
2. Fritz Graewe
Fritz also claims that sufficient evidence does not exist to support his conviction on counts 16, 17, 18, and 19 (Travel Act counts), count 35 (possession of cocaine with intent to distribute), and count 58 (use of a telephone to facilitate distribution of marijuana).
Even under this court’s narrow construction of the Travel Act in United States v. Alsobrook, 620 F.2d 139, 143-44 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980) (but see supra note 25), there is sufficient evidence supporting Fritz’s conviction on the Travel Act counts. It is not necessary for a co-conspirator to know the circumstances of each instance of travel or the identity of each traveler-participant in a criminal activity. See United States v. Prince, 529 F.2d 1108 (6th Cir.), cert. denied, 429 U.S. 838, 97 S.Ct. 108, 50 L.Ed.2d 105 (1976). The evidence shows that Fritz actually participated in the interstate travel on at least two occasions, that he was a regular distributor in the narcotics operation, and that he played a very substantial role as a protector and enforcer of the enterprise. His claims of insufficient proof to sustain the Travel Act convictions are without merit. The Pinkerton theory of co-conspirator liability, moreover, sufficiently supports Fritz’s conviction on the remaining substantive counts.
3. Hans Graewe, Joseph Gallo, and Kevin McTaggart
We also find the contentions of Hans Graewe, Gallo and McTaggart as to sufficiency of the evidence to be without merit because of the substantial evidence in the record supporting their convictions on all counts.
B. THE SPEEDY TRIAL ACT’S THIRTY DAY REQUIREMENT
All appellants and Zagaria were initially indicted on July 8, 1981. Subsequently, Zagaria agreed to enter a plea bargain arrangement and to testify against his alleged co-conspirators. Thereafter, a superseding indictment was returned on October 27, 1981, which changed Zagaria’s status from indicted to unindicted co-conspirator, added Gallo to the RICO count (Count 1), and withdrew the predicate offense charging Hans Graewe with the murder of one Ted Waite.
Appellants were arraigned on the superseding indictment on October 28, 1982. The original indictment was dismissed the next day on the government’s motion, jury selection began November 8, 1982, and the trial began a week later. Gallo and Hans Graewe each claim the court committed reversible error by failing to grant a 30-day continuance following the superseding indictment. They claim the Federal Speedy Trial Act, 18 U.S.C. §§ 3161(c)(2) and 3161(d)(1) require a new 30 day period after the superseding indictment.
1. Joseph Gallo
The original indictment charged Gallo with engaging in a Continuing Criminal Enterprise, 21 U.S.C. § 848, and numerous substantive violations. The superseding indictment, in addition to these counts, also charged Gallo with RICO violations, 18 U.S.C. §§ 1961-1968.
We note at the outset that the Speedy Trial Act requires a court to provide an additional 30-day period in two situations only. First, when “any indictment or information is dismissed upon motion of the defendant,” and second, when “any charge contained in a complaint filed against an individual is dismissed or otherwise dropped.” (Emphasis added). Here the indictment was dismissed upon the government’s motion, not upon defendants’ motion. Further, an indictment, not a complaint was dismissed. Therefore both provisions are inapplicable. We note also that the original indictment was not dismissed until after the defendants had been arraigned under the superseding indictment. Section 3161(d)(2) is limited to situations in which a new indictment, information, or complaint is filed after dismissal of the original indictment. Section 3161(d)(2) is therefore inapplicable to the circumstances of this case. We agree with the Second and Seventh Circuits that the appropriate period for preparation by defendants following a superseding indictment is governed by the discretion of the district court, and not by the statutory 30-day requirement. See United States v. Todisio, 667 F.2d 255, 260 (2d Cir. 1981), cert. denied, 455 U.S. 906,102 S.Ct. 1250, 71 L.Ed.2d 444 (1982), and United States v. Horton, 676 F.2d 1165, 1170 (7th Cir.1982), cert. denied, 459 U.S. 1201, 103 S.Ct. 1184, 75 L.Ed.2d 431 (1983); see also Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act oif 1979 (1981) at 14 (30-day period does not run anew when a superseding indictment is filed).
That we find the Speedy Trial Act to be inapplicable, however, does not dispose of this issue entirely. Gallo claims that he was denied his due process and effective assistance of counsel rights by the denial of a continuance.
The denial of a motion for a continuance will not be reversed absent a clear abuse of discretion. Denial amounts to a constitutional violation only if there is an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay.” To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense.
United States v. Mitchell, 744 F.2d 701, 704 (9th Cir.1984). See also United States v. Faymore, 736 F.2d 328 (6th Cir.), cert. denied, — U.S. -, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984). The trial judge allowed Gallo only ten or eleven days to prepare a defense to the RICO claim contained in the superseding indictment. We note that granting Gallo’s continuance motion would not have jeopardized the government’s case against any of the defendants under the 70-day requirement of the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), contrary to the government’s argument, because the tolling provisions of sections 3161(h)(7) and (8) of that Act would cure any problems with respect to this 70-day requirement. When defense counsel makes reasonable requests for a continuance in a highly complex case, and is afforded only ten days following arraignment to prepare for trial, the trial judge’s denial of the motion constitutes an abuse of discretion and violates the defendant’s sixth amendment right to counsel. Linton v. Perini, 656 F.2d 207 (6th Cir. 1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982); see also United States v. Wirsing, 719 F.2d 859 (6th Cir.1983). We find the situation in these cases to be analogous to Gallo’s charge under the RICO count, a complex charge with a prompt request for a continuance and an otherwise unreasonably short time to prepare a defense. We conclude that Gallo has shown prejudice with respect to the RICO charge, and we therefore reverse his conviction on that count.
Given the four months which Gallo’s defense counsel had to prepare for the remaining counts in the indictment, however, we find no “spill over” effect from the continuance denial which would taint the remainder of Gallo’s convictions. See United States v. Wirsing, 719 F.2d 859 (6th Cir.1983). There is no demonstrated prejudice in the government’s proceeding to prompt trial on the other charges set out in the original indictment. Since Gallo received a concurrent and longer sentence on the count 2 conviction, the concurrent sentence doctrine preserves Gallo’s conviction and sentence on this and the other counts notwithstanding our reversal of his count 1 conviction. Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 2364 n. 16, 37 L.Ed.2d 380 (1973); United States v. Greer, 588 F.2d 1151, 1154 (6th Cir.1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979); United States v. Grunsfeld, 558 F.2d 1231, 1242 (6th Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 219, 54 L.Ed.2d 152 (1977); United States v. Burkhart, 529 F.2d 168, 169 (6th Cir.1976); see also Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We therefore do not find it necessary to remand this case to the district court, despite our setting aside Gallo’s RICO conviction.
2. Hans Graewe
Hans Graewe also claims violation of due process and effective assistance of counsel right stemming from the trial judge’s denial of a continuance following the filing of the superseding indictment. The superseding indictment, however, only affected Hans by eliminating the predicate offense of Ted Waite’s murder.
As set out in our discussion of Gallo’s similar claim, the Speedy Trial Act does not mandate a 30-day delay between the filing of a superseding indictment and commencement of trial. Unlike Gallo's situation, however, we find no abuse of discretion by the trial judge in denying a continuance to Hans. We believe that the judge properly exercised his discretion in refusing to grant a continuance. See Morris v. Slappy, 461 U.S. 1, 7, 103 S.Ct. 1610, 1614, 75 L.Ed.2d 610 (1983) (“broad discretion must be granted trial courts on matters of continuances”). Hans’ counsel had almost four months to prepare for the counts contained in the original indictment, with a major predicate offense eliminated in the superseding indictment. Graewe, furthermore, fails to demonstrate any “actual prejudice to his defense” caused by the trial judge’s refusal to grant a continuance.
3. Angelo Lonardo, Fritz Graewe, and Kevin McTaggart
For the reasons already given, we find the trial judge to have acted well within his broad discretion in denying the motions of other appellants for a continuance.
C. SEVERANCE
Denial of a Rule 14 severance will not be disturbed on review unless the district court abused its discretion in denying the motion. See, e.g., United States v. Williams, 711 F.2d 748, 750 (6th Cir.), cert. denied, — U.S. -, 104 S.Ct. 433, 78 L.Ed.2d 365 (1983); United States v. Warner, 690 F.2d 545, 552 (6th Cir.1982); United States v. Tarnowski, 583 F.2d 903 (6th Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 468 (1979); United States v. McLaurin, 557 F.2d 1064 (5th Cir.1977).
To show abuse of discretion in this respect, a defendant must make a strong showing of prejudice. Williams, 711 F.2d at 751; United States v. Davis, 707 F.2d 880, 883 (6th Cir.1983); Warner, 690 F.2d at 552. Specifically, he must show an inability by the jury to separate and to treat distinctively evidence that is relevant to each particular defendant on trial. See Williams, 711 F.2d at 751; Davis, 707 F.2d at 883; McLaurin, 557 F.2d at 1075. Even if defendant may establish some potential jury confusion, this must be balanced against society’s need for speedy and efficient trials. United States v. Scaife, 749 F.2d 338 (6th Cir.1984); Davis, 707 F.2d at 883. Persons jointly indicted normally should be tried together. United States v. Stull, 743 F.2d 439 (6th Cir.1984); United States v. Licavoli, 725 F.2d 1040, 1051 (6th Cir.), cert. denied, — U.S.-, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); see also United States v. Robinson, 707 F.2d 872, 879 (6th Cir. 1983).
1. Angelo Lonardo
Lonardo claims the district court erred by failing to grant his motion for severance. See Fed.R.Crim.Proc. 14. This claim raises an issue concerning the effect the court’s actions had on the ability of the jury to decide fairly and separately the guilt or innocence of each defendant.
Lonardo claims that the “mass of highly inflammatory testimony concerning the gruesome and brutal murders [charged against the other defendants] would not have been admitted if Appellant were tried alone” (Lonardo’s brief at 25). He argues that he has a right not to be tried for violent offenses for which he is not charged, not to be tried jointly with appellants charged in a similar but allegedly unrelated conspiracy, and not to be tried in a joint trial where substantial prejudice results from a “spillover effect” of evidence relating to other appellants.
Lonardo fails to support his argument for severance with any showing of likely jury confusion or other indicia of prejudice. Rather, he bases his argument on the inflammatory nature of some of the evidence adduced against the other appellants. Merely because inflammatory evidence is admitted against one defendant, not directly involving another codefendant (and with which the other is not charged) does not, in and of itself, show substantial prejudice in the latter’s trial. See United States v. Scaife, 749 F.2d 338 (6th Cir.1984), in which this court found no abuse of discretion even though evidence of one defendant’s attempted murder of an FBI agent was admitted during a joint trial for robbery and even though the other defendants were not charged with the attempt.
Here, the jury was able to acquit each appellant on some counts and convict them on others. This strongly suggests that the jury was not confused by the testimony adduced at trial, and was able to attribute to each appellant evidence pertinent to that particular party. Absent a clear showing of specific and compelling prejudice resulting from a joint trial, the denial of a motion for severance will not serve as a basis for reversal. See United States v. Dempsey, 733 F.2d 392, 398 (6th Cir.), cert. denied, — U.S.-, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984); United States v. Licavoli, 725 F.2d 1040, 1051 (6th Cir.), cert. denied, — U.S. -, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Williams, 711 F.2d 748, 751 (6th Cir.), cert. denied, — U.S.-, 104 S.Ct. 433, 78 L.Ed.2d 365 (1983); United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983). Lonardo has failed to make the strong showing required.
Lonardo further claims that the district court’s refusal to sever his trial resulted in a “spillover effect” which may have caused the jury to convict him “not on the basis of evidence relating to [him] but by imputing to [him] guilt based on the activities of the other set of conspirators.” United States v. Tolliver, 541 F.2d 958, 962 (2d Cir.1976).
The existence of ... a “spill-over” or “guilt transference” effect ... turns in part on whether the numbers of conspiracies and conspirators involved were too great for the jury to give each defendant the separate and individual consideration of the evidence against him to which he was entitled.
Hs # sfc s}: s}c sjc
Nine persons here were indicted, and six went to trial, virtually the same number we found insufficient in United States v. Miley, 513 F.2d 1191, 1209 (2d Cir. 1975), to raise a possibility of guilt transference, and far fewer than the 29 persons indicted and 17 tried in United States v. Bertolotti, 529 F.2d 149, 156 (2d Cir.1975), or the 32 defendants indicted and 19 tried in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), where a “spill-over” effect was found to exist.
541 F.2d at 962-63. In comparison to Tolliver this case involves seven indicted defendants, only five being tried. The authority cited is not a basis for reversal on the “spillover” effect of failure to sever.
Joinder of cases is permitted when it would promote judicial economy without substantial prejudice to the defendants. Fed.R.Crim.P. 8; Bruton v. United States, 391 U.S. 123,131 n. 6, 88 S.Ct. 1620,1625 n. 6, 20 L.Ed.2d 476 (1968). A defendant has no right to a separate trial merely because his likelihood of acquittal would be greater if severance were granted. United States v. Stirling, 571 F.2d 708, 733 (2d Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978); United States v. Larson, 526 F.2d 256, 260 (5th Cir.), cert. denied, 429 U.S. 839, 97 S.Ct. 110, 50 L.Ed.2d 106 (1976). Absent a showing of substantial prejudice, spillover of evidence from one case to another does not require severance. United States v. Ricco, 549 F.2d 264, 270-71 (2d Cir.1977). The burden is upon Lonardo, who has failed to show this substantial prejudice required for reversal.
Lonardo cites Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), to support his contention in this respect, a case involving a serious variance between the indictment charge and the proof adduced by the government. In Kotteakos there were eight different conspiracies linked by a single broker at its hub: “the pattern was ‘that of separate spokes meeting in a common center,’ though ... without the rim of the wheel to enclose the spokes.” Id. at 755, 66 S.Ct. at 1243. The indictment, however, had charged only one conspiracy, and the trial judge had instructed the jury “It is one conspiracy, and the question is whether or not each of the defendants, or which of the defendants, are members of that conspiracy.” Id. at 756, 66 S.Ct. at 1243. The indictment in the instant case does not charge Lonardo with the RICO conspiracy; rather, Lonardo is charged with complicity in a separate CCE conspiracy. The indictment charge, unlike the situation in Kotteakos, is not at variance with the government’s proof. Thus, Kotteakos is inapposite.
Lonardo also relies on Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960), which again involved a joint trial of defendants in a spoke and hub type conspiracy, a scheme to transport stolen goods in interstate commerce. Three separate groups were involved with a common coordinator to transport stolen goods to various states. The conspiracy charges linking the Schaffer appellants with the common coordinator were dropped, yet the Court found joinder appropriate. In contrast, the conspiracy charge against Lonardo was not dropped, and the proof against the other defendants in the CCE charge were applicable to Lonardo. Schaffer is clearly distinguishable.
United States v. Reynolds, 489 F.2d 4 (6th Cir.1973), cert. denied, 416 U.S. 988, 94 S.Ct. 2395, 40 L.Ed.2d 766 (1974), and United States v. Bova, 493 F.2d 33 (5th Cir.1974), also cited by Lonardo, deal with a Rule 8(b) misjoinder claim. Lonardo, however, did not claim a Rule 8(b) misjoinder in the proceedings below, and therefore he has failed to preserve this claim on appeal. United States v. Williams, 711 F.2d 748, 750 & n. 3 (6th Cir.), cert. denied,-U.S. -, 104 S.Ct. 433, 78 L.Ed.2d 365 (1983).
United States v. McLaurin, 557 F.2d 1064 (5th Cir.1977), involved a trial of 15 defendants together, with common names and nicknames, and still the court found no abuse of discretion in denying a severance. “Defendant’s burden of showing prejudice [is] a ‘heavy’ or ‘extremely difficult’ burden.” Id. at 1075. Likewise, United States v. Tarnowski, 583 F.2d 903 (6th Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 468 (1979), cited by Lonardo, involved a finding of no abuse of discretion in denying a Rule 14 severance motion.
In United States v. Vinson, 606 F.2d 149 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980), the defendants presented a more compelling case of prejudice than in the instant case. The defendants claimed that they were antagonistic toward one another. The court found severance unnecessary “[a]bsent some indication that the antagonism between [them] misled or confused the jury.” Id. at 154. The court noted “the mere fact that codefendants attempt to blame each other does not compel severance.” Id. United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir.1980) (per curiam), in like fashion held “defendant must show that antagonism between codefendants will mislead or confuse the jury.” (One defendant was charged with a crime that the others were not.) There was, nevertheless, no abuse of discretion in denial of a Rule 14 severance. There was no claim of antagonism between the positions of co-defendants in this case.
Finally, United States v. Ong, 541 F.2d 331 (2d Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977), cited by Lonardo, stands for the proposition that the harmless error rule applies in situations when a separate trial should have been granted to avoid the potential of undue prejudice. We find that no undue prejudice was demonstrated by the district court’s denial of the Rule 14 severance in the instant case, and conclude that none of the authority cited by Lonardo persuades us to the contrary.
2. Fritz Graewe
Fritz Graewe, unlike Lonardo, was charged in the RICO conspiracy (count 1). He makes a similar argument to that of Lonardo’s for new trial based on a failure to sever, because he claims his joinder in count one was made in bad faith and because the district court granted his Rule 29(a) motion for acquittal on the RICO count.
We find no indicia of bad faith in the government’s decision to join Fritz in the RICO conspiracy count. The evidence at the very least suggests that Fritz was an accessory after the fact in a number of murders that served as predicate acts for the RICO count. Under the circumstances, we are not persuaded that the government acted in bad faith in charging him along with other defendants in count 1.
We conclude that Fritz Graewe states a less persuasive case for severance than does Lonardo, and for essentially the same reasons stated in denying Lonardo’s claim, the trial judge did not abuse his discretion in denial of severance despite the favorable Rule 29 holding.
D. RULE 105 LIMITING INSTRUCTIONS
Both Lonardo and Fritz claim error in the failure to give Rule 105 limiting instructions with respect to certain testimony, which the court admitted, they assert, for purposes of proving the RICO charge not the CCE charge. The government contends that the court’s three or four admonitions each day to the jury, directing that jurors consider the evidence separately as to each defendant was sufficiently limiting. In any event, the government contends the evidence was admissible to prove the CCE as well as the RICO charge.
Assuming that the court’s general instructions wer not the specific mandate required by Rule 105, see Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 266 (5th Cir.1980); and Wright and Graham, 21 Federal Practice & Procedure § 5062 (1977 & 1983 Supp.), we consider the alternate argument of the government that Rule 105 instructions are not required if the evidence is relevant, material, and otherwise admissible without limitation against the party requesting the instruction. If certain evidence is admissible against one defendant on one particular count, and the primary purpose of the presentation is to prove that count, a court need not give Rule 105 instructions requested by a co-defendant if the evidence is also admissible against the latter as to a completely different count. The trial judge correctly noted that the evidence in controversy here
may come in to establish an overt act as to the [RICO] conspiracy count [and] it may come in to indicate the in concert relationship with others and [to show] that the enterprise was a continuing enterprise.
Evidence of Lonardo’s supervisory position over Gallo and Sinito, developed by the government in its proof on the RICO count was also relevant to Lonardo’s similar role in the CCE. For the same reasons we reject Fritz’s complaints about the court’s failure to give Rule 105 limiting instructions in respect to his involvement in activities with which other defendants were charged.
E. ABSENCE AT TRIAL
After the government had rested its case, appellant Hans Graewe became ill and was taken to a local hospital. His attorney was about to conclude his ease, and the other defendants about to begin their presentations. Hans was absent for no more than two days. The following colloquy took place between the court and Hans’ defense attorney when he first failed to attend the trial:
THE COURT: Let the record show earlier this morning the Court was called by the Marshal and told that Mr. Hartmut Graewe was at the City Hospital and was admitted there last night as an emergency patient.
His counsel this morning was told of the call and has talked to Mr. Graewe by phone at the Hospital____
[DEFENSE COUNSEL]: I have talked with Mr. Graewe at the hospital.
His indication to me is he is prepared at this time to enter a waiver of his presence of the continuing cross-examination of Agent Winslow that I will be conducting.
At this point I will be resting our case, and he has waived his presence in the preparation of the other defendants’ cases.
THE COURT: Let the record so show.
[PROSECUTOR]: Your Honor, I move for leave of the Court to reopen the Government’s case to call Detective Phil Smith.
THE COURT: The motion is granted.
[DEFENSE COUNSEL]: Let our objection be noted.
After Graewe returned to court he again became ill and requested permission to absent himself for an additional day. At this point, the following colloquy took place in the judge’s chambers:
[DEFENSE COUNSEL]: Hartmut Graewe would at this time waive his presence during the rebuttal testimony for the day in order to recuperate and be better prepared to sit for the rest of the trial, specifically closing argument and those type of things. It is his wish that this waiver be accepted and that he be returned to the — do you want to go back to the medical facility at the jail?
DEFENDANT HARTMUT GRAEWE: Yeah.
[DEFENSE COUNSEL]: He would like to go back to the medical facility at the jail, at County Jail.
THE COURT: Is this your decision, Mr. Graewe?
DEFENDANT HARTMUT GRAEWE: Pardon me?
THE COURT: Is this your decision, sir?
DEFENDANT HARTMUT GRAEWE: Yes, sir.
THE COURT: The Court will grant you the motion____
Jt.App. at 2972.
It is well settled that a defendant can waive his right to be present at trial by voluntarily absenting himself from trial, see Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), by obtaining the court’s permission to be absent, see United States v. Jones, 514 F.2d 1331 (D.C.Cir.1975), or by failing to make a timely objection to the holding of proceedings in his absence, see United States v. Brown, 571 F.2d 980, 987 (6th Cir.1978). Here is demonstrated a clear example of waiver. We find Hans’ argument in this regard entirely baseless. There is no showing of prejudice.
F. OFF THE RECORD CONFERENCES
Numerous times during trial the district judge engaged in dialogue with the attorneys, both for defendants and for the government, “off the record,” but usually out of the jury’s hearing. These off-the-record remarks were not transcribed. There is no indication that during the trial any attorney objected to this procedure. To the contrary, when defense attorneys objected to a ruling resulting from off-record discussion, the court permitted the attorneys to go “on record” to state their objections in full. We consider the court’s failure to record fully these bench conferences sufficiently troublesome to merit full discussion.
The Court Reporters Act, 28 U.S.C. § 753, states in part:
(b) One of the reporters appointed for each such court shall attend at each session of the court and at every other proceeding designated by rule or order of the court or by one of the judges, and shall record verbatim by shorthand or by mechanical means which may be augmented by electronic sound recording subject to regulations promulgated by the Judicial Conference: (1) all proceedings in criminal cases had in open court; (2) all proceedings in other cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary; and (3) such other other proceedings as a judge of the court may direct or as may be required by rule or order of court or as may be requested by any party to the proceeding.
(Emphasis added). We agree that the Act states a mandatory rule. See United States v. Renton, 700 F.2d 154 (5th Cir. 1983); United States v. Selva, 559 F.2d 1303, 1305 (5th Cir.1977); United States v. Garner, 581 F.2d 481 (5th Cir.1978). Furthermore, it is the duty of the court, not the attorneys, to meet the Act’s requirements. United States v. Garner, 581 F.2d 481 (5th Cir.1978).
A violation of the recording mandate, however, is not per se error, and thus without more does not require reversal. Even the Fifth Circuit's United States v. Selva, 559 F.2d 1303 (5th Cir.1977), which most strictly views failure to follow the Act’s requirements, does not adopt a per se error approach. Rather, Selva states two different standards depending on whether the same counsel represented defendant at trial and on appeal. If the counsel is the same, Selva requires an appellant to show hardship and prejudice before a court will find reversible error. A standard less exacting upon defendant applies if appellate counsel were not the trial counsel. In such situations, according to Selva, a defendant need only show the absence of “a substantial and significant portion of the record.” See also United States v. Renton, 700 F.2d 154 (5th Cir.1983).
In some instances the failure of a court to follow the § 753(b) mandate will require reversal. We disagree, however, that a separate, less demanding test need be applied when a defendant is represented by new counsel on appeal. Absent a showing by counsel on appeal of a reasonable but unsuccessful effort to determine the substance of the off-the-record remarks and the nature of a claimed error, reversal is not an appropriate remedy. In any event, we refuse to apply two standards in reviewing § 753(b) problems when it happens that trial counsel and appellate counsel are not the same.
In determining whether hardship or prejudice results from a trial court’s failure to record every statement made in “open court,” the reviewing court must consider all the circumstances in the record surrounding the omission. Generally, failure to record comments made by the judge or counsel to the jury will be viewed with greater disfavor than those made during side bar discussions. See United States v. Sneed, 527 F.2d 590 (4th Cir.1975); United States v. Piascik, 559 F.2d 545, 548 (9th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978). A court’s offer to counsel to record objections following an “off-the-record” discussion lessens the risk of prejudice and reversal. See, e.g. United States v. Metz, 608 F.2d 147 (5th Cir.1979), cert. denied, 449 U.S. 821, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980); United States v. Sneed, 527 F.2d 590 (4th Cir.1975). Compare these with the situation in United States v. Weiner, 578 F.2d 757 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978).
It is significant that defendants may have waived objections to the court’s procedure, even if it failed to comply with the Court Reporters Act above cited. The defendant’s personal consent or a waiver of claim of error in not recording all proceedings may preclude claims of reversible error. See United States v. Weiner, 578 F.2d 757, 789 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); United States v. Piascik, 559 F.2d 545, 549-50 (9th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978); Houston v. United States, 419 F.2d 30, 34 (5th Cir.1969). Lawyers for defendants in this instance went beyond merely acquiescing in the trial court’s procedure; in a number of instances, the directive to “go off the record” came not from the court but from defendant’s counsel, without objection from other counsel. We find defendants effectively to have waived objection to the “off-the-record” side bar discussions especially in light of their failure to state any particular substantive errors the court may have made during these discussions. See United States v. Long, 419 F.2d 91, 94 (5th Cir.1969) (“in order to require reversal, some specific error or prejudice resulting from failure to record such proceedings must be called to the Court’s attention”).
With respect to this issue, however, under our supervisory power we strongly “suggest that if the trial court needs to confer with counsel about rulings to be made from the bench the safe course is to excuse the jury or retire to chambers and let the reporter record what takes place.” United States v. Brumley, 560 F. 2d 1268, 1281 (5th Cir.1977). On the record before us, however, reversible error has not been demonstrated by the unfortunate failure to record all proceedings in the court pertaining to the trial.
G. STEERING
Appellants filed motions for new trial claiming that by manipulating the court assignment system the prosecutors had engaged in a pattern of “steering” significant criminal cases to a judge of their choice. We note that in an analogous and related case we held that due process concerns are not implicated by clerical errors resulting in a defendant’s being assigned to a different judge than he would have received absent the error. Sinito v. United States, 750 F.2d 512 (6th Cir.1984). In Sinito, the court noted that “a defendant does not have a right to have his case heard by a particular judge,” does not “have the right to have his judge selected by a random draw,” and “is not denied due process as a result of the error unless he can point to some resulting prejudice.” Id. at 515.
[E]ven if control over the assignment of cases were not observed by the court under the rule, the judges have inherent power to administer the business of the courts in an orderly way. Litigants have no vested right in the order in which cases are assigned for trial; and it is not contended that the judge to whom the case was assigned was in any way disqualified.
Levine v. United States, 182 F.2d 556, 559 (8th Cir.1950), cert. denied, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665 (1951).
These cases are clearly dispositive. Appellants do not claim the trial judge was in any way disqualified to hear the case. The district court properly refused to grant appellant’s motion for new trial based on this claim.
III. CONCLUSIONS
We have carefully considered the remainder of appellants’ numerous arguments and find them to be without merit.
For the above reasons we Affirm in full the convictions of appellants Angelo Lonardo, Hartmut Graewe, Frederick Graewe, and Kevin McTaggart. We Affirm Joseph Gallo’s conviction except that we Reverse his conviction on count 1 because of the court’s failure to accord him sufficient time in which to prepare his defense. Because Gallo’s sentence on count 1 was to run concurrently with the longer sentence he received on the remaining counts, however, we do not find it necessary to remand the case to the district court for further proceedings.
Accordingly, we Affirm in part and Reverse in part.
. Hartmut Graewe filed two briefs written by different lawyers.
We assume the latter of the two superseded the earlier, and therefore have not considered any issue raised in the superseded brief.
. In addition to counts 1 and 2, the jury convicted Gallo on counts 11 through 21 (Travel Act counts), count 35 (the cocaine possession count), and counts 44 through 48, 50, 51, 53, 54, 55, 57, and 58 (unlawful telephone use counts). The jury acquitted him on the remaining counts. The jury convicted Fritz Graewe on counts 16 through 21, count 35, and count 58, and acquitted him on the remaining counts. In addition to counts 1 and 2, the jury convicted Hans Graewe on counts 3 through 21 (Travel Act counts), count 35, and counts 40 through 48, 50, 51, 53, 54, 55, 57, and 58 (unlawful telephone use counts). The jury acquitted him on the remaining counts. In addition to counts 1 and 2, the jury convicted McTaggart on counts 3 through 21, count 35, and counts 40 through 48, 50, 51, 53, 54, 55, 57, and 58, and acquitted him on the remaining counts. In addition to count 2, the jury convicted Lonardo on counts 11 through 21 (Travel Act counts) and on counts 44 through 48, 50, 51, 53, 54, 55, 57, and 58 (unlawful telephone use counts). He was acquitted on the remaining counts.
. The illicit gambling allegations related only to the RICO charge and not to the CCE count. Since Lonardo was not indicted on the RICO charge, his role in the illicit gambling operation may not be considered substantive evidence of criminal activity. The facts concerning these activities, however, are relevant to show the relationships among all the parties.
. Ritson was later murdered by Hans Graewe prior to trial.
. Hans Graewe carried out his murderous plan in July 1978. Zagaria agreed to assist.
. Barboot is a dice game in which the players bet against one another and in which the house takes 2'A percent of the winnings as its share.
. The details of the Danny Greene bombing incident are set forth in United States v. Licavoli, 725 F.2d 1040 (6th Cir.1984).
. Thomas Sinito was convicted of RICO violations in a separate proceeding. See United States v. Sinito, 714 F.2d 143 (6th Cir.1983) (affirming conviction in an unpublished opinion). See also the related cases, United States v. Sinito, 723 F.2d 1250 (6th Cir.1983), and United States v. Sinito, 750 F.2d 512 (6th Cir.1984).
. The travel by Sinito and Zagaria in March 1979 formed the basis for the convictions on counts 3 and 4 of the indictment.
. The travel by Newman and by Zagaria’s associate, Ed Uscier, to obtain marijuana and deliver cocaine in September and October of 1979 formed the basis for the convictions on counts 5 through 10 of the indictment. The telephone calls made during those trips formed the basis for the convictions on counts 40 through 43.
. The evidence showed that the restaurant frequented by Lonardo was located very close to Gallo’s office.
. The travel by Zagaria and his associates, Anselmo and Odom, to Florida and Georgia in January 1980 formed the basis of the convictions on counts 11 through 14. The telephone calls between Zagaria, Gallo, and Sinito during that trip formed the basis for the convictions on count 44. The travel by runner William Laszlo to Georgia in May 1980 to pick up 750 pounds of marijuana formed the basis for the convictions on count 15.
. The cocaine that was found in the rental car formed the basis for the convictions on count 35 of the indictment.
. Zagaria knew him only as "David," but the man was later identified as David Hardwicke.
. The travel of Ed Uscier from Florida to Ohio in November 1980 with the two stolen kilograms of cocaine formed the basis for the convictions on count 16.
. The plans to “rip off” Giaimo were discussed in several telephone conversations between Zagaria, Gallo, and Sinito, intercepted pursuant to court order. Those recorded conversations included discussions of other narcotics transactions and gambling activities.
. The travel of Fritz Graewe and three of Zagaria’s other associates in connection with the Giaimo "rip off’ formed the basis for the convictions on counts 17 through 21. The related telephone calls during that period formed the basis for the convictions on counts 57 and 58.
. This is the second occasion on which Lonardo congratulated Zagaria in a similar manner.
. Testimony indicates or clearly implied that the “old-timers” included Lonardo.
. The evidence indicates that Gallo’s office was near the restaurant frequented by Lonardo.
. Lonardo was of top rank under the evidence in the east side crime family. Keith Ritson [a murder victim], for example, wanted to go to the east side’s annual clambake and kill a few of his old enemies: "James Licavoli, Angelo Lonardo, Eugene Ciasuelo, and Calabrese.” There is copious other evidence further showing Lonardo's supervisory and managerial role in the east side crime family.
. The Eleventh Circuit in United States v. Alvarez, 755 F.2d 830, 849-50 (11th Cir.1985), noted that a "court need not inquire into the individual culpability of a particular conspirator, so long as the substantive crime was a reasonably foreseeable consequence of the conspiracy." We agree with this characterization of the Pinkerton doctrine.
. There is no requirement that the court use the word "Pinkerton” in its charge to the jury. The court here gave this instruction:
[if] the defendant under consideration was • one of [the conspiracy’s] members, then the statements and acts knowingly made and done during such conspiracy and in furtherance of its objects, by any other proven member of the conspiracy, may be considered by the jury as evidence against the defendant under consideration even though he was not present to hear the statement made or the act done.
This is true because, as stated earlier, a conspiracy is a kind of partnership so that under the law each member is an agent or partner of every other member, and each member is bound by or responsible for the acts and statements of every other member made in pursuance of their unlawful scheme. Jt.App. at 3259. This comports with Pinkerton.
. Although he emphasizes that he made loans to, rather than investments in, the drug business, Lonardo never claims he did not know of Zagaria's intended use for the money.
. This court is alone in requiring knowledge of the interstate nexus as a necessary element in the proof of a Travel Act violation. See United States v. Herrera, 584 F.2d 1137, 1150 (2d Cir. 1978); United States v. LeFaivre, 507 F.2d 1288, 1297-98 (4th Cir.1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975); United States v. Perrin, 580 F.2d 730, 737 (5th Cir. 1978), aff'd, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979); United States v. McPartlin, 595 F.2d 1321, 1361 (7th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1980); United States v. Sellaro, 514 F.2d 114, 120-21 (8th Cir.1973), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed-.2d 681 (1975); United States v. Roselli, 432 F.2d 879, 891 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); United States v. Villano, 529 F.2d 1046, 1054 (10th Cir.), cert. denied, 429 U.S. 953, 96 S.Ct. 3180, 49 L.Ed.2d 1193 (1976).
In United States v. Yermian,-U.S.-, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984), the Supreme Court indicated that knowledge is not necessary to confer jurisdiction under the federal false statement statute, 18 U.S.C. § 1001. Id. at 4923 (existence of fact conferring federal jurisdiction "need not be one in the mind of the actor at the time he perpetrated the act made criminal by the federal statute.”) This holding may suggest that the basis of the knowledge requirement under the Travel Act may no longer be valid. We need not reach this question, however, because we find sufficient evidence from which a jury reasonably could have found that Lonardo was aware of the interstate travel involved in the conspiracy.
. Graewe does not challenge the sufficiency of the evidence with respect to counts 20 and 21, which charge him with being the person who actually did the interstate traveling.
. Fritz filed a motion for continuance on November 3, 1982, denied November 5, 1982. Gallo moved for a continuance on November 1, 1982, denied November 3, 1982. We find no indication in the record that other appellants moved for continuance, as claimed by Hans in his brief. We assume for purposes of this appeal, however, that each appellant timely moved for a continuance and was turned down, since the government does not argue to the contrary.
. 18 U.S.C. § 3161(c)(2) provides:
Unless the defendants consent in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.
.. U.S.C. § 3161(d)(1) provides:
If any indictment or information is dismissed upon motion of the defendant, or any charge contained in a complaint filed against an individual is dismissed or otherwise dropped, and thereafter a complaint is filed against such defendant or individual charging him with the same offense or an offense based on the same conduct or arising from the same criminal episode, or an information or indictment is filed charging such defendant with the same offense or an offense based on the same conduct or arising from the same criminal episode, the provisions of subsections (b) and (c) of this section shall be applicable with respect to such subsequent complaint, indictment, or information, as the case may be.
. The terms "indictment,” "information,” and “complaint” are not synonymous. An "indictment" is a grand jury accusation that a defendant committed a crime. See 21 Words and Phrases, Indictment 316-333 (1960 & 1984 Supp.). An "information” is an attorney general’s or prosecuting attorney’s accusation. See 21 Words and Phrases, Information 610-24 (1960 & 1984 Supp.). And a "complaint" is an accusation filed by a private person or informant. See 8 Words and Phrases, Complaint 382-85 (1951 & 1984 Supp.).
A review of the rather scanty legislative history behind § 3161(d) provides some insight into the Congress' choice of language:
If a defendant procures dismissal of an indictment or information, any subsequent indictment or information with respect to that crime and defendant must observe the requirements of subsection (b) and (c).
1974 U.S.Code Cong, and Admin.News, Committee Report on H.R. 17409 at 7401, 7453. Thus, subsection (d) refers not to the 30 day minimum, but rather to the 70-day maximum. The language limits this recalculation of the 70-day period only to those situations in which a party other than the government procures the dismissal so that the government cannot avoid the 70-day period merely by dismissing the original indictment and subsequently obtaining a new indictment. We therefore disagree with the Ninth Circuit, which in United States v. Harris, 724 F.2d 1452, 1455 (9th Cir.1984), held that under the Speedy Trial Act a court may not compel a defendant to go to trial until 30 days after the filing of a superseding indictment. We note that the Supreme Court has granted certiorari in a similar Ninth Circuit case, United States v. Rojas-Contreras, 730 F.2d 771 (9th Cir. 1984), cert. granted, — U.S. -, 105 S.Ct. 1167, 84 L.Ed.2d 319 (1985), in which the Ninth Circuit followed Harris.
. Hans’ counsel’s claim is unpersuasive that the superseding indictment “changed the thrust of the prosecution from an essentially drug trafficking prosecution to a murder permeated prosecution.”
. The arguments raised by Lonardo in his severance claim are intimately related to his contention that some of the evidence, especially that relating to the murders, should have been excluded under Rule 403 of the Federal Rules of Evidence. Indeed, the Rule permits a judge to exclude evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
For essentially the reasons we give for not finding improper the denial of Lonardo’s Rule 14 motion, we find no abuse of discretion by the trial court in refusing to exclude the evidence on Rule 403 grounds. Clearly in reviewing Rule 403 decisions we must apply an “abuse of discretion” standard. See e.g., United States v. Friedland, 660 F.2d 919, 929 (3d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2268, 73 L.Ed.2d 1283 (1982); United States v. Authement, 607 F.2d 1129, 1131 (5th Cir.1979); United States v. Larios, 640 F.2d 938, 941 (9th Cir.1981); United States v. Pomerantz, 683 F.2d 352 (11th Cir. 1982); accord United States v. Jenkins, 525 F.2d 819, 824 (6th Cir.1975). Given the frequently violent nature of crimes committed in furtherance of the illicit activities Congress addressed in its enactment of the RICO and CCE statutes, we do not find an abuse of discretion by the trial court in refusing to exclude under Rule 403 evidence of those violent crimes committed by Lonardo’s co-conspirators in furtherance of the CCE.
. See also United States v. Bertollotti, 529 F.2d 149 (2d Cir.1975), for a similar factual situation to that in Kotteakos.
. RICO defines racketeering activity, inter alia, as "an act or threat involving murder ... which is chargeable under state law and punishable by imprisonment for more than one year.” 18 U.S.C. § 1961. Under Ohio Rev.Code §§ 2921.-32(A) and (B), and 2929.11(B), obstruction of justice is punishable by imprisonment for more than one year. Courts have found obstruction of law enforcement activities concerning listed predicate acts to be predicate acts themselves, we similarly find obstruction of justice concerning predicate acts also to be predicate acts. See United States v. Welch, 656 F.2d 1039 (5th Cir. 1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1767, 72 L.Ed.2d 173 (1982).
. Rule 105 of the Federal Rules of Evidence provides:
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.
. We specifically reject Lonardo’s contention that evidence presented relative to a co-defendant’s purported involvement in a "RICO” conspiracy cannot be used to support a conviction of the other defendant’s involvement as charged in a "continuing criminal enterprise.” Although the two offenses have separate elements of proof, often a substantial overlap in the evidence offered may exist. Cf. United States v. Phillips, 664 F.2d 971, 1038 (5th Cir.1981).
. We note that during the five day period of jury deliberations the judge also made “off the record" remarks to the jury on three occasions. It appears, however, that these comments concerned the jury’s physical comfort, and on one occasion a juror’s need to visit her dentist. These remarks, no matter how innocuous, should be made on the record, but we find the error to be harmless under the circumstances beyond a reasonable doubt.
. At oral argument neither side was able to answer whether audio recordings of these discussions were made by the court. For purposes of this appeal we will assume the "off-the-record" dialogues are not now available in any form.
. The following colloquy is representative of this situation:
[DEFENSE COUNSEL]: Object, your Honor. THE COURT: Approach the Bench.
(The following proceedings were had at the side bar out of the hearing of the jury.)
(Discussion had off the record.)
THE COURT: All right. Put whatever you want on the record.
[DEFENSE COUNSEL]: Your Honor, I rise to object because____
Jt.App. 1951. (No objection was made to the fact that the discussion was not then made a part of the trial record.)
. To apply a different standard as a matter of course may invite counsel to plant the seeds of reversible error during the course of trial, and permit a resourceful defendant to reap the benefit by utilizing a different counsel on appeal. As the Fifth Circuit itself noted in United States v. Smith, 591 F.2d 1105, 1109 n. 1 (5th Cir.1979):
This anomalous [Selva] rule seems to invite the manipulation of appellate causes to achieve unmerited reversals.
We do not, however, imply that appellant or his counsel in the instant case engaged in any such improper manipulation.
. Appellant’s counsel argues that some of the recorded objections are so ambiguous and confused that ”[t]he realm of speculation reaches mind boggling heights in attempting to divine what procedural matters were discussed, who discussed them, what was said or represented by the parties to this lawsuit, what was said by the court, and what rulings were made." Gallo’s and McTaggart’s brief at 33.
Our own review of the record, on the other hand, indicates that in most instances the nature and outcome of the off-the-record discussions are clear. The trial judge permitted defense counsel to record objections to his rulings. It is counsel’s responsibility to ensure that the record is clear and complete. We find no reversible error in those few instances in which the nature of defendants’ objection is not clear, especially absent allegations of the nature of errors the court is claimed to have committed.
. Appellants do claim that at one point during voir dire, Gallo’s attorney stated he would like a particular motion made part of the record and the judge replied ”[i]t is not necessary for the record.” This motion was not demonstrated to involve a prejudicial matter. Thus, although we view the court’s refusal to permit the motion to be made part of the record with disfavor, we find this particular instance to be harmless error also.
. We are not impressed by appellants’ claim that they were "brain washed” into accepting the court’s procedure here. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_judgdisc |
PINKERTON v. UNITED STATES.
No. 9523.
United States Court of Appeals Seventh Circuit.
Nov. 24, 1948.
James B. Martin, of Springfield, Ill., Charles E. Bliss, of Taylorville, Ill., and Harry B.. Hershey and Lee W. Ensel, both of Springfield, Ill., for appellant.
Howard L. Doyle, U. S. Atty., and Marks Alexander, Asst. U. S. Atty., both of Springfield, Ill., Theron L. Caudle, Asst. Atty. Gen., Arthur L. Jacobs, Atty., Dept. of Justice, of Washington, D. C. and George A. Stinson, Ellis N. Slack, A. F. Prescott, and Clarence J. Nicltman, Sp. Asst. to Atty. Gen., for appellee.
Before KERNÉR and MINTON, Circuit Judges, and SWYGERT, District Judge.
KERNER, Circuit Judge.
Plaintiff, as receiver of Mt. Auburn & Osbernville Grain Company (hereinafter referred to as Auburn), filed a timely claim for refund of federal income and excess profits tax which the Commissioner of Internal Revenue rejected. Upon denial of the claim, suit was instituted. The facts were stipulated. They appear in the trial judge’s findings reported in D.C., 73 F.Supp. 590. The controlling facts briefly summarized are that although Auburn was originally engaged in the grain business, it entered into an agreement under which it ceased active grain operations and instead assumed the active status of a landlord-lessor. In 1944 a receiver was appointed to manage and operate Auburn. As receiver he collected rents which would have been taxable to Auburn, deferred payment of part of the rent, paid real estate taxes, sold real estate and realized a profit, that is, a net capital gain for the sale of real estate. Based on these findings the court concluded that plaintiff, as receiver, had carried on precisely the business that had been carried on by Auburn for some years preceding the receivership and that the taxable income and gain thereby realized came into his hands as a result of his management of the business and properties of and the collection of rent due Auburn. The court ruled that plaintiff was an operating receiver within the meaning of § 52 of the Internal Revenue Code, 26 U.S. C.A. § 52, and that the taxes had been properly paid; it dismissed the complaint and entered judgment for costs against plaintiff. To reverse this judgment, plaintiff appeals.
Section 52 of the Internal Revenue Code reads in part as follows: “In cases where receivers * * * are operating the property or business of corporations, such receivers * * * shall make returns for such corporations in the same manner and form as corporations are required to make returns. Any tax due on the basis of such returns made by receivers * * * shall be collected in the same manner as if collected from the corporations of whose business or property they have custody and control.”
Plaintiff makes the point that where a receiver takes immediate steps to sell and does sell all of the assets of a corporation, except those which the court appointing the receiver, ordered reserved for collection, it cannot be said that the receiver is operating the property or business within the meaning of the statute, citing among other cases, In re Owl Drug Co., D.C., 21 F.Supp. 907, and In re Heller, Hirsch & Co., 2 Cir., 258 F. 208.
In the Owl case the trustee took over the drug stores which the bankrupt had formerly operated, and after selling the business and all of its assets as a going concern, he deposited the proceeds in a bank. The court held that the interest earned on the deposits was not gain derived from the operation of the business of the bankrupt. In the Heller case the facts were that the trustee was not carrying on the business of the bankrupt, and the funds constituting the income were the result of a compromise made by the trustee of a claim for nonpayment of salary and commissions. Thus, the trustee did nothing more than collect the proceeds from a claim, which he compromised, arising from a contract entered into and completely executed by the corporation prior to the bankruptcy. We do not disagree with these decisions but, in the light of the instant facts, we do not think they are applicable here.
In our case Auburn’s business was the collection of rents, and the Christian County Court entered a decree directing the receiver to take charge of, manage and operate its assets, and after plaintiff was appointed receiver he succeeded to and continued Auburn’s sole business function. Under these circumstances we think he was not only operating Auburn’s business, but he also took over its corporate property and in the course of his receivership he operated its property, and hence came within the meaning of § 52 of the Act. We are fortified in this conclusion by the cases presently to be discussed in which the words “operating the property or business” have received judicial construction.
It is immaterial that the receiver’s activities were of short duration. Von Baumbacb v. Sargent Land Co., 242 U.S. 503, 517, 37 S.Ct. 201, 61 L.Ed. 460. See also Page v. M. Rich. & Bros. Co., 5 Cir., 99 F.2d 607. True, the Von Baumbach case did not involve § 52 of the Revenue Act. It was a suit to recover taxes paid under protest and assessed under the Corporation Tax Law of 1909, yet the question was whether plaintiff was doing business.' The Act in that case did not require any particular amount of business in order to bring a company within its terms; neither does § 52 of the Revenue Act; Hence whether the activities are slight or of short duration is immaterial.
State v. American Bonding & Casualty Co., 225 Iowa 638, 281 N.W. 172, however did involve an interpretation of § 52 of the Revenue Act. There, as here, the receiver took over properties and collected rents. No federal income tax was paid 'upon the income thus derived by the receiver. The United States Government filed a claim against the corporation. The receiver filed objections to the claim contending that as the corporation had been dissolved, it could not have any income after its dissolution, and could not, therefore, be subject to any income tax. The court, in disposing of the receiver’s contention, 281 N.W. at page 175, said: “ * * * this receivership comes fairly within the phrase ‘receiver operating the property or business,’ especially in connection with the words occurring later in the statute, ‘of whose business'or property they have custody and control.’ ” In United States v. Metcalf, 9 Cir., 131 F.2d 677, the corporation had been adjudicated a bankrupt and its property was in the 'course of -administration by a trustee for ultimate liquidation. The properties consisted of' various parcels of real estate from which the trustee had collected income. The trustee coni tended" that even if this income 'was acquired by him in the operation of the bank*rupt’s property, it was not taxable because his ultimate objective was- the liquidation of the entire estate. The court held that it is what the trustee does that determines his liability, and since1 he :had collected various kinds of income from the properties, he was doing business within the meaning of § 52 of the Revenue Act. See also Louisville Property Co. v. Commissioner, 6 Cir., 140. F.2d 547.
' In the light o-f these cases and the facts in our case, we are of the opinion that the District Court correctly held that plaintiff was an operating receiver within the meaning of § 52 of the Internal Revenue Code. Consequently, the judgment must be affirmed.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? | [
"Food & Drug Administration",
"General Services Administration",
"Government Accounting Office (GAO)",
"Health Care Financing Administration",
"Immigration & Naturalization Service (includes border patrol)",
"Internal Revenue Service (IRS)",
"Interstate Commerce Commission",
"Merit Systems Protection Board",
"National Credit Union Association",
"National Labor Relations Board",
"Nuclear Regulatory Commission"
] | [
5
] | songer_respond1_3_3 |
Bhupendra C. PATEL, also known as “Ben” Patel, and Meena B. Patel, his wife, Plaintiffs-Appellants, v. Richard C. GAYES, M.D., Thomas Engel, M.D., and Evangelical Health Systems Corporation, doing business as Good Shepherd Hospital, an Illinois corporation, Defendants-Appellees.
No. 91-2210.
United States Court of Appeals, Seventh Circuit.
Argued April 2, 1992.
Decided Jan. 21, 1993.
Rehearing and Rehearing En Banc Denied March 29, 1993.
Kenneth C. Chessick, John W. Fisk (argued), Daniel L. Giudice, Schaumburg, IL, for plaintiffs-appellants.
John Joseph Mustes (argued), Thomas P. Hartnett, Kathleen A. Bridgman, Connelly, Mustes, Schroeder, John N. Seibel, Cassi-day, Schade & Gloor, Chicago, IL, for defendants-appellees.
Before FLAUM and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
RIPPLE, Circuit Judge.
This is an appeal from a jury verdict for the defendant, Dr. Richard Gayes, in a medical malpractice action. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988). For the reasons that follow, we affirm.
I
BACKGROUND
On October 9, 1986, Bhupendra Patel underwent a cardiac stress test arranged by his physician, Dr. Richard Gayes, and performed by Dr. Thomas Engel, a cardiologist. The test revealed abnormal activity that indicated that Mr. Patel was suffering from heart disease. Dr. Engel informed Dr. Gayes of the results. That same day, Dr. Gayes informed Mr. Patel that the results of the test were abnormal, but he did not instruct him to take any special precautions. Two days later, Mr. Patel moved and serviced a sump pump weighing thirty pounds. Early the following morning, he suffered a heart attack. Following his heart attack, Mr. Patel was treated by Drs. Susarla and Robin.
Mr. Patel and his wife, Meena Patel, brought the present civil action against Dr. Gayes for negligent malpractice. Specifically, they allege that the heart attack could have been prevented had Dr. Gayes cautioned Mr. Patel to avoid strenuous or stressful activities until further tests were performed. The Patels brought their claim in federal court pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). A jury found Dr. Gayes was not liable, and the district court subsequently denied the Pa-tels’ request for a new trial. For the reasons that follow, we now affirm.
II
ANALYSIS
Mr. Patel and his wife allege four separate trial errors: (1) that the court erred in excluding opinion testimony from two of the physicians who treated Mr. Patel; (2) that the court erred in not reading four proposed jury instructions, and in altering the language of a fifth; (3) that the court erred in preventing certain hypothetical questions from being asked to the Patels’ expert witness; and (4) that the court erred in excluding certain evidence on the scope of damages. We address each of these contentions in turn.
1. Exclusion of expert testimony from treating physicians
During discovery, Dr. Gayes served an interrogatory pursuant to Rule 26(b)(4)(A) of the Federal Rules of Civil Procedure. He sought the names of all experts who would testify at trial, the subject matter on which they were expected to testify, and the substance of the facts and opinions that they were expected to give. The Patels responded that their only expert would be Dr. John Vyden, a cardiologist.
Prior to trial, Dr. Gayes filed a motion in limine to prevent Drs. Susarla and Robin, Mr. Patel’s subsequent treating physicians, from giving expert testimony because they had not been identified as experts in the Patels’ response to the Rule 26(b)(4) interrogatory. Dr. Gayes had deposed both doctors during discovery. In an in limine proffer of testimony, both Dr. Susarla and Dr. Robin gave opinions on the standard of care to which Dr. Gayes should have adhered. After defense objections, the court disallowed this testimony because the Pa-tels had not identified these two physicians as experts under Rule 26.
As a preliminary matter, we note that “we review a district court’s decision to exclude expert testimony under an abuse of discretion standard, and the trial court’s determination will be affirmed unless it is ‘manifestly erroneous.’ ” Mercado v. Ahmed, 974 F.2d 863, 871 (7th Cir.1992) (citations omitted). Federal Rule of Civil Procedure 26(b)(4)(A)(i) provides:
A party may through interrogatories require any other .party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
If a party fails to adhere to the standards of Rule 26(b), the district court may, in its discretion, bar the party from presenting that expert’s testimony. Blumenfeld v. Stuppi, 921 F.2d 116, 117 (7th Cir.1990).
The text of Rule 26(b)(4) would appear to require the disclosure of all persons who would provide expert testimony at trial. However, the Advisory Committee Notes and cases interpreting the rule apply a more narrow interpretation. Specifically, the Notes state that “the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an ..expert should be treated as an ordinary witness.” Fed.R.Civ.P. 26(b)(4)(A), Advisory Committee Note. Consequently, an expert need not be identified if he was “a viewer or actor with regard to the disputed question.” Jenkins v. Whittaker Corp., 785 F.2d 720, 728 (9th Cir.), cert. denied, 479 U.S. 918, 107 S.Ct. 324, 93 L.Ed.2d 296 (1986).
We must decide whether Drs. Susarla and Robin acquired their opinions about the correct duty of care directly through their treatment of Mr. Patel. If so, the Patels were not required to identify them as expert witnesses under Rule 26(b)(4), and the court erred in excluding their testimony. The Patels contend that they did hot have to identify the physicians because “these experts did not become involved in this case in anticipation of litigation, but became involved as treating physicians.” Appellant’s Br. at 25. Dr. Gayes counters that Drs. Susarla and Robin needed to be identified as experts because their proposed testimony “went beyond the substantive and temporal scope” of their treatment of Mr. Patel. Appellee’s Br. at 18. As a result, their opinions “went beyond [their] professional relationship with Ben Patel, and into the realm of pure expert testimony.” Id. at 22.
In order to determine if an expert need be identified before trial, Rule 26 focuses not on the status of the witness, but rather on the substance of the testimony. See Nelco Corp., 80 F.R.D. at 414 (“[u]nder Rule 26(b)(4)(A), a witness sought to be discovered may be an ‘expert’ as to some matters and an ‘actor’ as to others.”); accord Quarantillo, 106 F.R.D. at 437. Under the Federal Rules, an expert must be identified if his testimony does not come from his personal knowledge of the case, Jenkins, 785 F.2d at 728, or if his knowledge was “acquired or developed in anticipation of litigation or for trial.” Grinnell Corp. v. Hackett, 70 F.R.D. 326, 331 (D.R.I.1976). The testimony of Drs. Susar-la and Robin with respect to the standard of care falls within this category. As Dr. Gayes points out, at least one of the documents upon which the physicians were asked to comment, the electrocardiogram (EKG), was not used by them to treat Mr. Patel. Therefore, their knowledge, in this instance, was not based on their observations during the course of treating his illness. Moreover, the physicians were questioned about their opinion of the general medical standard of care within the community. As the district court determined, this is “classic” expert testimony. A witness would formulate such an opinion only when preparing for litigation. Accordingly, we cannot conclude that the district court’s ruling was “manifestly erroneous.”
2. Jury instructions
The Patels next contend that the district court committed five reversible errors in its handling of the jury instructions. Specifically, the court refused to read four of the Patels’ proposed instructions and substituted the words “wrongful conduct” for “negligence” in the proposed jury instruction on damages. Our review of a district court’s choice in jury instructions is limited.
“In diversity cases, state law determines the substance of jury instructions, while federal law governs the procedure in formulating the instructions and the manner in which they are given.” Simmons Inc. v. Pinkerton’s Inc., 762 F.2d 591, 595 (7th Cir.1985). Moreover, we review jury instructions only to determine if “the instructions as a whole were sufficient to inform the jury correctly of the applicable law.” United States v. Villarreal, 977 F.2d 1077, 1079 (7th Cir.1992). Consequently, “when assessing the adequacy of jury instructions given at trial, we consider not only ‘the instructions as a whole, but [also] ... the opening statements, the evidence, and the closing argument’ to determine if the jury was adequately informed of the applicable law.” Smith v. Chesapeake & Ohio Ry., 778 F.2d 384, 387-88 (7th Cir.1985). With these standards in mind, we turn to proposed jury instruction numbers 9, 15, 16, and 22, which were refused in this case.
Proposed Instruction 9 would have instructed the jury that it could draw an adverse inference against Dr. Gayes for failing to introduce into evidence an American Heart Association study upon which a substantial portion of his testimony was based. Instruction 9 is based upon Illinois Pattern Civil Jury Instruction No. 5.01, which by its terms is only appropriate when the evidence withheld was not readily available to the other party. Illinois Pattern Jury Instructions No. 5.01 (West 3d ed. 1992) (hereinafter IPI); Myre v. Kroger Co., 176 Ill.App.3d 160, 125 Ill.Dec. 713, 715, 530 N.E.2d 1122, 1124 (1988). Whether to give IPI No. 5.01 is a matter within the sound discretion of the trial court. Roeseke v. Pryor, 152 Ill.App.3d 771, 105 Ill.Dec. 642, 648, 504 N.E.2d 927, 933 (1987). In the present case, the challenged evidence was a study issued by the American Heart Association, which presumably the Patels could have obtained on their own. Moreover, the Patels were permitted to argue to the jury the fact that the study had not been introduced. Accordingly, we cannot accept the contention that the Pa-tels were prejudiced by the trial court’s decision.
Proposed Instruction 15 would have instructed the jury that at times a physician’s duty of due care requires him to bring a specialist in to assist him. At trial the Patels argued that Dr. Gayes should have hospitalized Mr. Patel for further tests once Dr. Gayes informed him of the stress test results. Consequently, the district court reasoned that an instruction on the duty to call in a specialist was subsumed within the argument that Dr. Gayes should have hospitalized Mr. Patel. Tr. of Mar. 7, 1991 at 820. The ruling of the district court was not reversible error.
Proposed Instruction 16 would have instructed the jury that a cardiologist may properly delegate to a patient’s regular physician the duty of explaining the results of a stress test. Because the Patels voluntarily dismissed Dr. Engel from the suit, the district court’s decision not to give such a specific instruction directing attention to that physician’s conduct was within the court’s sound discretion and did not result in an unfair trial.
Proposed Instruction 22 would have instructed the jury that Mr. Patel could recover damages if the heart attack aggravated a pre-existing coronary disease. The instructions actually read to the jury contained no reference to pre-existing injuries. However, at trial Dr. Vyden, the Patels’ expert, stated that Mr. Patel’s heart attack aggravated his already existing condition of coronary artery disease. If, as was the Patels’ theory, Dr. Gayes would have been able to prevent the heart attack if he had checked Mr. Patel into a hospital, then it appears, in a sense, that his negligence would have “caused” (or at least would have “contributed to”) the aggravation of Mr. Patel’s disease. Dr. Gayes does not dispute this theory. Instead, he asserts that the coronary artery disease Mr. Patel suffered was not made worse by his conduct, rather that the condition progressed naturally into a heart attack.
Under Illinois case law, a plaintiff is generally entitled to an instruction on the aggravation of a pre-existing injury if there is a sufficient evidentiary basis to permit a jury to find that the defendant’s conduct made a pre-existing injury worse. Tracy v. Village of Lombard, 116 Ill.App.3d 563, 71 Ill.Dec. 838, 847, 451 N.E.2d 992, 1001 (1983). The district court was of the view that a pre-existing injury instruction was not appropriate on the facts of this case:
The pre-existing ailment was coronary artery disease, blockage. How this ailment was aggravated is not shown. It’s really not an aggravation case.
Tr. of Mar. 7, 1991 at 819. The jury was instructed that it could assess damages for disability and for pain and suffering caused by Dr. Gayes’ alleged negligence. We believe that these instructions, when read as a whole, sufficiently depicted the Patels’ theory of liability that there was no real risk that the jury was misguided by the omission of a pre-existing injury instruction. Accordingly, the district court did not commit reversible error in omitting the proposed instruction.
The Patels also contest the district court’s substitution of the words “wrongful conduct” for “negligence” in the damage instruction, which was modeled after IPI No. 30.01. We cannot say that the district court’s choice of instruction phrasing amounted to an abuse of discretion. Moreover, because the jury did not find Dr. Gayes liable at all, a prerequisite for awarding damages under any instructions tendered, any error in the precise wording of the damages instructions would have been harmless.
3. The hypothetical question to Dr. Vyden
As noted above, prior to trial, Dr. Gayes requested from the Patels the identity of any expert witnesses that they sought to call, as well as the substance of any testimony that these witnesses would give, and the facts upon which they would base that testimony. In their response, the Patels identified Dr. Vyden as a medical expert and stated that he would discuss, in part, the effect on Mr. Patel of social dancing the evening before his heart attack. Subsequent to answering the interrogatory, it was learned that Mr. Patel had not been dancing the evening before the attack. However, he had moved and serviced a sump pump the morning the incident occurred. Under Rule 26(e)(1)(B), the Pa-tels were required to supplement their interrogatory response regarding Dr. Vyden’s testimony to correct this factual error; they failed to do so. Prior to trial, the court granted Dr. Gayes’ motion in limine to limit the Patels’ expert to testifying only to opinions previously disclosed during discovery.
At trial, Dr. Vyden testified that during his deposition he erroneously had believed that Mr. Patel had been dancing the evening before his attack. The Patels’ counsel then attempted to elicit from him, through the use of hypothetical questions, the effect that moving a sump pump would have had on Mr. Patel. The court barred this testimony because the information about the sump pump had not been disclosed to Dr. Gayes previously. The Patels claim that the exclusion of this testimony was erroneous because their question was a proper hypothetical to an expert. In support of this argument, they cite a number of Illinois state court cases approving the use of hypotheticals.
The Patels’ argument is misplaced because the district court excluded this information as a sanction for failing to conform with the disclosure requirements of Rule 26(e), not because the questions eliciting it had been improperly framed. Tr. of Mar. 7, 1992 at 449-50. Under the Federal Rules, the district court has the discretion to impose sanctions on a party if that party fails to meet the requirements of Rule 26. Blumenfeld v. Stuppi, 921 F.2d 116, 117 (7th Cir.1990). Among the sanctions available to the court for a violation of Rule 26(e) are “exclusion of evidence, continuance, or other action as the court might deem appropriate.” Fed.R.Civ.P. 26(e), Advisory Committee Notes. Accordingly, unless the district court abused its discretion in excluding the evidence, its decision will not be disturbed on appeal. We find that no abuse of discretion occurred.
4. Exclusion of damage evidence
The district court excluded expert testimony about Mr. Patel’s alleged reduced life expectancy, his risk of a second heart attack, and his personal fear of another heart attack. Mr. Patel claims that it was established to a reasonable degree of certainty that he was likely to have another heart attack and that his life span had been shortened by the heart attack. Consequently, he claims that the district court erred in excluding this evidence from the jury’s calculation of damages. The Patels presented their arguments in response to a series of in limine motions to exclude the evidence. The district court concluded that this evidence was too speculative in the absence of expert testimony that would illustrate the risk to a reasonable medical certainty. Tr. of Dec. 28, 1990 at 24-33. We cannot say that this determination was unreasonable. Accordingly, the district court did not abuse its discretion.
CONCLUSION
The judgment of the district court is affirmed.
Affirmed.
. In the parties’ briefs as well as at oral argument, there appeared to be some question as to the applicability of Illinois Supreme Court Rule 220, which is the state court rule on expert testimony and is worded identically to Federal Rule of Civil Procedure 26(b)(4)(A). However, when there is a Federal Rule of Civil Procedure directly on point, which is not unconstitutional, a federal district court sitting in diversity must apply the federal procedural rule, rather than a conflicting state rule. Hanna v. Plummer, 380 U.S. 460, 473-74, 85 S.Ct. 1136, 1145, 14 L.Ed.2d 8 (1965).
. Cf. Nelco Corp. v. Slater Elec., Inc., 80 F.R.D. 411, 414 (E.D.N.Y.1978) (”[I]t is ... apparent that these provisions are not applicable to discovery requests directed at information acquired or developed by the deponent as an actor in transactions which concern this lawsuit.”) (emphasis in original); Quarantillo v. Consolidated Rail Corp., 106 F.R.D. 435, 437 (W.D.N.Y.1985) ("Rule 26(b)(4) sets forth restrictions upon discovery of facts known and opinions held by experts that had been acquired or had been developed in anticipation of litigation or for trial.") (emphasis in original).
.Under Illinois case law, the Patels might have a stronger argument that the doctors did not have to be identified. See O’Brien v. Meyer, 196 Ill.App.3d 457, 143 Ill.Dec. 322, 324, 554 N.E.2d 257, 259 (1989) (treating physicians need not be disclosed as experts under Rule 220); Dugan v. Weber, 175 Ill.App.3d 1088, 125 Ill.Dec. 598, 601, 530 N.E.2d 1007, 1010 (1988) (“The physician’s relationship to the case, not the substance of his testimony, qualifies him as a Rule 220 expert.’’). Although these cases seem to set down a blanket rule that a treating physician not retained to give an opinion at trial need not be disclosed, there is also language in O’Brien warning against trying to bring expert testimony in "through the back door.” 143 Ill.Dec. at 324, 554 N.E.2d at 259.
. Although not necessary to our decision, we note that Dr. Vyden, the Patels' expert cardiologist, did testify to the jury that it was his opinion that Dr. Gayes had not adhered to the general medical standard of care.
. The district court noted on the record that all of the Patels’ proposed instructions were actually rejected because they were not timely submitted. However, for the sake of completeness, we shall elaborate further because the Patels dispute the clarity of the instruction deadline. Tr. of Mar. 7, 1991 at 818, 822.
. See also Midcoast Aviation, Inc. v. General Elec. Credit Corp., 907 F.2d 732, 741-42 n. 7 (7th Cir.1990) ("With (jury] instructions, we don’t pick nits; we examine the whole of what was given and look for overall fairness and accuracy."); Goldman v. Fadell, 844 F.2d 1297, 1302 (7th Cir.1988) (inadequacy of jury instructions is only reversible error when “the jury’s comprehension of the issues is so misguided that a litigant is prejudiced”) (citations omitted).
. Dr. Gayes testified that he relied upon the study to estimate the chance of Ben Patel having a heart attack, given the other coronary risk factors that he had. Additionally, he relied upon the study as the basis for his opinion that he had not deviated from the appropriate standard of care.
.Dr. Vyden testified that Dr. Gayes deviated from accepted standards of care in not hospitalizing Mr. Patel immediately. Specifically, Dr. Vyden stated that "not to have hospitalized the patient, not to have immediately ordered followup tests is in a word outrageous.” Tr. of Mar. 7, 1991 at 442-43.
. The jury was instructed separately on the issue of liability in terms of negligence. Tr. of Mar. 11, 1991 at 892-93.
. Federal Rule of Civil Procedure 61 governs when a mistake made at trial is harmless error:
The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Fed.R.Civ.P. 61.
. See, e.g., Stephens v. Inland Tugs Co., 44 Ill.App.3d 485, 3 Ill.Dec. 157, 358 N.E.2d 324 (1976) (experts may properly be asked hypothetical questions even though not all material facts of trial are included); Morris v. Stewart, 4 Ill. App.3d 322, 280 N.E.2d 746, 753 (1972) (hypothetical questions posed to an expert are not improper merely because they include only some of the facts in evidence). | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". | Did the court rule that the indictment was defective? | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
4
] | songer_indict |
CITY BANK FARMERS TRUST CO. v. McGOWAN, Collector of Internal Revenue.
No. 228.
Circuit Court of Appeals, Second Circuit.
May 10, 1944.
J.'Seymour Montgomery, Jr., and Montgomery, Grace & Derby, all of New York City (Ja'mes Lloyd Derby, King, Taylor, Otheman & Swain, and Frederick P. King, and Hines, Rearick, Dorr & Hammond, and John K. Watson, and Paul Smith, all of New; York City, of counsel), for appellant.
Carlton Fox, of Washington, D. C., Samuel O. Clark, Jr., Asst. Atty. Gen., and Se-wall Key and J. Louis Monarch, Sp. Assts. to the Atty. Gen., George L. Grobe, U. S. Atty., of Buffalo, N. Y., and Robert M. Hitchcock, Asst. U. S. Atty., of Washington, D. C., for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
The plaintiff is the administrator of Helen Hall Vail, a deceased incompetent; it sued to recover the amount which it had paid to the defendant, as collector, as an estate tax levied on her estate. The judgment allowed part of the claim and denied the rest; and the plaintiff appeals from the denial. The facts were as follows. Helen Hall Vail, the intestate, was declared incompetent by the Supreme Court of New York, where she lived, in August, 1926; and the plaintiff was appointed a committee of her property. She was then a widow, over seventy years old and incurably insane. Her next of kin were a daughter and three infant children of a dead daughter who lived with their father. She owned real estate in Geneva, New York, Palm Beach, Florida, and New Jersey; and including accumulations of past income, she had personal property, of about $1,000,000. Besides, she was the life beneficiary of a trust in her favor created by her first husband, the income from which was about $300,000 a year; and her income from all sources including this was about $350,000. On October 8, 1926, her daughter petitioned the New York court to direct the plaintiff, as committee, to pay annually to certain named persons reasonable allowances out of the incompetent’s surplus income, and the court referred the petition to a referee to hear testimony. The referee found that the utmost amount necessary for the incompetent’s support, including the payment of taxes, would “fall far short of the sum of $50,000 per annum” and that there would remain “a balance of income of over $250,000,” and recommended certain allowances. The court confirmed the report and directed the plaintiff to pay to the daughter annually $50,-000, and to the guardian of the grandchildren the same amount. It also directed the plaintiff to pay $2,000 a year to a brother, $2,000 to each of three sisters, and $3,-000 to a fourth sister. On April 26, 1932, the daughter petitioned the court for an increased allowance; and this petition was referred to another referee. He heard testimony and recommended that the allowances to the daughter and to the grandchildren be increased by $25,000, and these increases should be paid retroactively. The court confirmed his report and entered an order to that effect. Under both these orders the plaintiff, as committee, paid out of surplus income the specified amounts until the death of the incompetent on December 27, 1935. The aggregate of these payments the commissioner included in the incompetent’s estate on the ground that they were made in contemplation of death under § 302(c) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 227. The district judge held that all the payments were part of the incompetent’s estate except $6,000 of the annual payments to the daughter, $6,000 of those to the grandchildren, and $500 of those to one of the sisters. His reasons for making these exceptions were that the gifts pro tanto “were motivated by the same motive which would have led the incompetent, Helen Hall Vail, to make payments in these amounts to these respective parties.” Between the year 1914 and August 1926, when the incompetent was adjudged incompetent, she had given $6,000 annually to her two daughters, and $500 annually to the sister in question.
Section 302(c) of the Revenue Act of 1926 covers “any interest -* * * of which the decedent has at any time made a transfer * * * in contemplation of * * * death.” The payments at bar were not made by the decedent, so that literally, the words do not apply. Nevertheless, the property was transferred, for the law gave the judges power to transfer it. The first question therefore is whether we should hold that the section covers such payments in case they are made “in contemplation of death,” a question which we may reserve for the moment. We are satisfied that the proper construction of the section is as though it read: “any interest * * * of which at any time a transfer has been made from the decedent in contemplation of death.” We have no doubt that if Congress had been faced with a situation like that before us, it would have included payments made by the court out of the property of an incompetent; to hold otherwise would be to frustrate the plain purpose of the section. Moreover, that once granted, the intent of the court must control in deciding whether the payments were made “in contemplation of death,” for obviously the incompetent herself could have no intent of any kind. The judges’ intent was to make such gifts as the incompetent would have made, if she had been competent, so the orders said; but that cannot have meant such gifts as she would have made, had she been not only competent, but expecting to continue competent until she died. It must have meant such gifts as she would have made, if for the moment lucid, but with the prospect of imminent incompetency before her. There can be no doubt as to this, for the judges had no evidence whatever from her past conduct for supposing that, if she had looked forward to ending her life in full possession of her faculties, she would have given away every year to her daughter, her grandchildren and her brother and sisters, more than $160,000 out of the $250,-000 which remained to her after paying her taxes and expenses. The allowances she had theretofore made did not remotely approach such figures.
Little has been added by the Supreme Court to what was said as to the phrase, “in contemplation of death,” in United States v. Wells, 283 U.S. 102, 51 S.Ct. 446, 75 L.Ed. 867, which remains our authoritative guide. The only other decisions of that court which can be said to throw any light upon it are Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, overruled on another point in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368; and Colorado National Bank v. Commissioner of Internal Revenue, 305 U.S. 23, 59 S.Ct. 48, 83 L.Ed. 20, and neiiher of these professes to modify the doctrine as there laid down. Its outlines were indeed not sharp, or intended to be sharp, but some things are clear. Such a gift need not be in contemplation of imminent death; the section applies to gifts made by the young and healthy, as well as by the old and infirm. It covers “substitutes for testamentary dispositions.” If they are such “substitutes,” the test is the donor’s motive, which “must be of the sort which leads to testamentary disposition” (page 117 of 283 U.S., page 451 of 51 S.Ct., 75 L.Ed. 867). Moreover, even though they be “substitutes” and the motive he of that “sort,” the donor must not be also actuated by a “dominant” motive of some other kind, which was left vague then, and has not yet been defined. Among such motives apparently is the desire to accustom the donee to the management and responsibility of property (United States v. Wells, supra, 283 U.S. 102, 51 S.Ct. 446, 75 L.Ed. 867), the desire to make him independent, or to keep down the donor’s surtaxes on his income (Becker v. St. Louis Trust Co., supra, 296 U.S. 48, 52, 56 S.Ct. 78, 80 L.Ed. 35), the desire to escape the possible consequences of the donor’s own speculations (Colorado National Bank v. Commissioner, supra, 305 U.S. 23, 26, 59 S.Ct. 48, 83 L.Ed. 20). Thus, if the gift be a “substitute” for a “testamentary disposition,” and if the only motive be a desire to anticipate the benefit which the donee will eventually get by such a disposition, it might seem to follow inevitably that it is made “in contemplation of death.” Yet, if that be true, every present gift, actuated by an undifferentiated desire to benefit the donee, is a gift “in contemplation of death,” if only it is made to a person to whom the donor would have left the property on his death. In that event the gift tax covers only gifts which are not “substitutes for testamentary dispositions,” and gifts, which, though they are such substitutes, are made with some “dominant” purpose of the specific character which takes a gift out of the section. Possibly that may be the law, but certainly it has not yet been clearly so declared.
We are not however confronted with that question here, because the gifts at bar were “substitutes for testamentary dispositions” in a', much more complete sense than the ordinary present gift inter vivos. First, they were made by one who could not enjoy the income during her life, but who must let it roll up and pass upon her intestacy. In Farmers’ Loan & Trust Co. v. Bowers, 2 Cir., 68 F.2d 916; Id., 2 Cir., 98 F.2d 794—“The Astor Trusts Case,”—for example, the donor had reserved to himself $150,000 annually out of the income of each trust which substantially exhausted it, so that all that he really gave to his sons was in substance remainders after his death. That was as complete a substitute for a testamentary disposition as it was possible for a gift to be and still be a gift at all. We do not forget that the gift of a remainder is not one “intended to take effect in possession or enjoyment” at the donor’s death. May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244. Nor do we mean that a gift to a person who would receive it upon the donor’s death is inevitably a gift “in contemplation of death,” whenever the donor reserves the income to himself for life. If the donor has a specific “dominant” motive of the required kind, such a gift will be excluded. But in determining whether a gift is one “in contemplation of death” an extremely weighty consideration is that by reserving the income to himself for life, the donor has so closely assimilated the gift to a testamentary disposition. In The Astor Trusts Case, supra, that.fact was, it is true, coupled with the donor’s other, and perhaps “dominant,” motive—to escape an estate tax—but that was not among those which the court will recognize.
Moreover, the facts in the case at har are even stronger than if a sane person had reserved the income to himself and given away only a remainder to those who would in due course have received it anyway. Such a person has had power to dispose of the remainder before he makes the gift, a power of which the gift deprives him. But an incompetent has no such power, and any gift made on his behalf deprives him of nothing; he is an inert conduit of the property to his next of kin, or to his legatees, if he has made a will while sane. It is true that in the case at bar the judges were authorized to act, and did act, for the incompetent, so that the incompetent is not to be deemed jurally impotent if this vicarious power can be imputed to her. But even if it can be, that power was very limited; as we have seen, it was confined to such gifts as she would have made, had she in a lucid interval contemplated her unhappy prospect. They had the choice of letting the surplus roll up, or of disposing of it as she would have disposed of it in such an interval, and as to the bulk of it they chose the ’daughter and grandchildren as donees, who were sure to take anyway. There could be no more complete “substitution” of a gift for a “testamentary”— in this case an intestate—-“disposition” than that. Perhaps it still would not have been within the section, if the judges had made the allowances in order to set up the donees in business, or something of the. kind, but they did nothing of the sort. Indeed, upon the hearings before the referees the testamentary purpose was very frankly made plain, as the following excerpts from the remarks of counsel show. At the first hearing: “The granting of these allowances will only affect the persons who are applying for them, and they will eventually get the property upon Mrs. Vail’s death.” Again, “By granting these allowances the child and grandchildren will be simply getting now what they will eventually get in the end, with the exception of the small allowances asked for the brother and sisters of Mrs. Vail which they, the only persons interested in the estate are willing these sisters and brother should have.” At the second hearing: “It is to me, not a matter of obtaining an allowance. It seems to be the idea of distributing part of this incompetent’s property in anticipation more or less of her death.” Again, “Where it is impossible for her to use it” (the income) “* * * then the Court can make an advancement.” And in accordance with this last suggestion the order provided that, so far as the payments to the daughter and the grandchildren might prove to be unequal, any excess given to one stirps should be regarded as an advancement in the distribution of the estate on intestacy, and should be charged against that stirps.
It is true that the allowances made to the brother and the sisters were not substitutes for that disposition of the property which would otherwise have taken place; on the contrary they diverted the money from those who would otherwise receive them. And yet it seems to us that it is enough to carry them along with the allowances to the daughter and grandchildren that the property transferred was beyond any power of the donor to enjoy, as were the remainders in The Astor Trust Cases; and that it was in addition beyond her individual power of disposition. Although they were not substitutes for the inevitable devolution of the property had they not been made, they were certainly testamentary in their character, and they were actuated by a motive of the sort that leads to testamentary dispositions. With less confidence as to these, we hold that they were also gifts “in contemplation of death” within § 302(c).
Judgment affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. | [] | [
1
] | songer_r_fed |
Pete Fossett TYLER, Appellant, v. UNITED STATES of America, Appellee.
No. 7380.
United States Court of Appeals Tenth Circuit.
Oct. 23, 1963.
Malcolm E. MacDougall, Littleton, Colo., for appellant.
Robert K. Ball, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges.
MURRAH, Chief Judge.
Appellant Tyler was tried and convicted in the United States District Court for the Western District of Oklahoma, on an indictment charging violation of 18 U.S.C., § 2312, i. e., transportation in interstate commerce of a stolen motor vehicle, described in the indictment as “a 1956 Lincoln, Vehicle Identification Number 56WA7009L”. Tyler contends on appeal that the trial Court erred in denying his motion for directed verdict of acquittal, because the prosecution failed to prove, as an essential element of the offense charged, that the 1956 Lincoln automobile found in Oklahoma City was the same vehicle which he allegedly transported from Dallas, Texas into Oklahoma.
The government’s case is based upon a connecting chain of circumstances and events, and may be briefly stated as follows : A used car dealer in Dallas, Texas testified that he negotiated with Tyler for the sale of a 1956 Lincoln; that when Tyler left his lot to “try the car out,” the vehicle bore Dealer’s License Plate No. 9P7589; and, that Tyler never returned the' vehicle nor was he thereafter seen by the witness. A police officer described an Oklahoma City two-car-accident, in which Tyler was involved and, referring to the accident report, testified that Tyler was then the driver of a “yellow 1956 Lincoln,” bearing 1961 Texas Tag No. SC2208. This tag was not the Dealer’s License Plate the 1956 Lincoln bore when it was taken from the dealer’s lot in Dallas. The proprietor of an Oklahoma City body shop testified that Tyler had left a “wrecked 1956 Lincoln” with him for repair. The F.B.I. Agent, who arrested Tyler in Ohio, testified that the defendant told him of having been involved in an Oklahoma City accident, which resulted in his vehicle being in an Oklahoma City body shop; and, that Tyler asserted his ownership of “this” automobile, stating that he had purchased it in Dallas, Texas.
There was no evidence that the automobile stolen in Texas bore the same serial number as the one found in Oklahoma City, or that they were even the same color. The only incriminating evidence of unlawful transportation was simply that Tyler took a 1956 Lincoln from the used car lot in Dallas, and he was in possession of a 1956 Lincoln automobile in Oklahoma City, to which he asserted ownership. “Proof that an automobile of' well-known and widely distributed type and model is stolen in one state * * * and that a similar car is * * * delivered in an adjoining state * * * is not sufficient evidence * * * that the automobile stolen * * * moved in interstate commerce * * Cox v. United States, 8 Cir., 96 F.2d 41, 42. And see: Hall v. United States, 8 Cir., 182 F.2d 833; and Kelly v. United States (10 C.A.), 246 F.2d 864. Cf. Gay v. United States (10 C.A.), 322 F.2d 208. While the chain of circumstances may be consistent with guilt, it is not inconsistent with innocence, and it is insufficient to support a conviction. See: McClintock v. United States (10 C.A.), 60 F.2d 839. See also: Brumbelow v. United States, (10 C.A.) 323 F.2d 703. (Sept. Term)
We hold that the government failed to identify the stolen vehicle in Oklahoma with sufficient certainty, and the case is reversed and remanded, with directions to dismiss. | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". | From which district in the state was this case appealed? | [
"Not applicable",
"Eastern",
"Western",
"Central",
"Middle",
"Southern",
"Northern",
"Whole state is one judicial district",
"Not ascertained"
] | [
2
] | songer_district |
George X. RAMSEUR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 18824.
United States Court of Appeals, Sixth Circuit.
April 8, 1970.
George X. Ramseur, Jr., in pro. per. J. H. Reddy, U. S. Atty., W. Thomas Dillard, Asst. U. S. Atty., Knoxville, Tenn., on brief for respondent-appellee.
Before WEICK, Chief Judge, and PECK and COMBS, Circuit Judges.
JOHN W. PECK, Circuit Judge.
Petitioner-appellant was charged by indictment with violation of Title 26, §§ 4744(a) (1) and 4742(a), possession of and aiding and abetting in the transfer of marijuana,, and was found guilty thereof by a jury.
Appellant appealed to this court, raising these issues: illegal search and violation of constitutional rights since Negroes and women were excluded from the jury. We affirmed the conviction, United States v. Ramseur, 378 F.2d 902 (1967).
Appellant subsequently sought relief in the District Court by a motion to vacate (28 U.S.C. § 2255) and for the first time contended that his conviction under the Marijuana Tax Law violated his privilege against self-incrimination. The District Court denied his motion, relying on Leary v. United States, 383 F.2d 851 (5th Cir. 1967), a case dealing with marijuana tax laws in which Leary had been charged under 26 U.S.C. § 4744(a) (2), and held that since he did not raise the self-incrimination issue at trial or on appeal, it was too late to raise such defense in a § 2255 proceeding. The appeal here considered is from that determination.
The Supreme Court reversed Leary, holding that where compliance with transfer tax provisions of the Marijuana Tax Act would have exposed defendant to prosecution under state narcotics laws, the plea of self-incrimination was a complete defense in prosecution for noncompliance with the law. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).
In a companion case, United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969), the Supreme Court affirmed the District Court’s dismissal of the indictment against Covington charging him with a violation of § 4744(a) (1). In a footnote, the Court stated that there was no significant distinction between § 4744(a) (2) in Leary and § 4744(a) (1). 395 U.S. at 59.
Appellant here was also charged with violation of § 4742(a) and neither Leary nor Covington dealt with that section. In a later Supreme Court case, Buie v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969), the Court dealt with a situation where a defendant was convicted under § 4742(a). In Buie, the Court held that the Fifth Amendment privilege against self-incrimination was not violated by the seller complying with this statute.
The Supreme Court has made a distinction between these two statutes because under § 4742(a) the person is a seller or transferor {Buie), while under § 4744 the person is a buyer or transferee {Leary). The Supreme Court in Buie concluded that there was no real and substantial possibility that purchasers would be willing to comply with the order form requirement even if their seller insisted on selling only pursuant to the form prescribed by law. 396 U.S. at 91, 90 S.Ct. 284.
It is here determined that the self-incrimination argument presented by appellant as to his conviction under § 4742(a) is not substantial, Buie v. United States, 396 U.S. 87, 90 S.Ct. 284 (1969).
As has been above indicated, appellant’s conviction as a transferee of marijuana under Section 4744(a) (1) presents separate issues. Covington and Leary hold that the Fifth Amendment privilege against self-incrimination provides a complete defense to a charge of violation of Sections 4744(a) (1) and 4744(a) (2) (as we have mentioned, the Supreme Court makes no distinction between these subparagraphs for purposes of determining Fifth Amendment privileges) “unless the plea is untimely, the defendant confronted no substantial risk of self-incrimination, or the privilege has been waived.” United States v. Covington, supra, 395 U.S. at 59, 89 S.Ct. at 1560. An additional question is whether relief under Covington and Leary is to be made available to appellant in this motion to vacate sentence or whether those eases are to be given prospective application only.
Similar threshold questions were faced by this Court sitting en banc in United States v. Whitehead, 424 F.2d 446 (6th Cir., decided March 3, 1970). The issue in that case which is here pertinent concerned the application of two decisions of the Supreme Court in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). Those eases hold that disclosures required to be made in order to comply with certain federal tax laws relative to gambling constituted self-incrimination violative of the Fifth Amendment rights. Judge Edwards speaking for the majority stated, “Turning to the constitutional issue, we note that appellant herein did not seek to raise the Fifth Amendment privilege at trial. Nonetheless, we do not consider the privilege to have been waived in this case and we elect to decide this issue on its merits [citing cases].” Similarly, and as have other courts which have considered the question, we here do not choose to reject the plea as untimely, nor do we consider the privilege to have been waived. Furthermore, it is clear that as a transferee of marijuana appellant confronted a substantial risk of self-incrimination. Tenn.Code Ann. § 52-1301 et seq. (1966). We therefore turn to a consideration of the applicability of Covington and Leary.
Our opinion in Graham v. United States, 407 F.2d 1313 (1969) opens with this sentence: “This appeal presents squarely for the first time in this court the contention that the decisions of the United States Supreme Court in the Marchetti and Grosso cases should be applied with unlimited retroactivity.” We therein examined the criteria for resolution of that issue as outlined by the Supreme Court in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and held (407 F.2d 1315):
“We have considered these criteria and believe that a) the purposes outlined for the reversing decisions in Marchetti and Grosso will be adequately served by applying them largely prospectively (i. e., so as not to require reversal and retrial of cases wherein judgments had become final as of the date of the Marchetti and Grosso decisions); b) obviously law enforcement authorities prior to these cases relied implicitly (and had reason to do so) upon the prior holdings of the United States Supreme Court in [United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1963)] and [Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955)]; and e) the impact of unlimited retroactivity upon the administration of justice would be substantial and adverse.”
In the present case the judgment of conviction had become final well over four years prior to the May 19, 1969, Covington and Leary decisions.
Applying the criteria decreed in Stovall v. Denno, supra, to the present case as we were guided by them in Graham it is concluded that Covington and Leary should be applied “largely prospectively” and that they do not require vacation of appellant’s conviction under Section 4744(a) (1).
Affirmed.
. Leary and Covington dealt with this statute :
Ҥ 4744. Unlawful possession
“(a) Persons in general. — It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a)—
(1) to acquire or otherwise obtain any marihuana without having paid such tax, or
(2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana so acquired or obtained.”
. “4742. Order forms
“(a) General requirement. — It shall be unlawful for any person, whether or not required to pay a special tax and register under sections 4751 to 4753, inclusive, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.”
. Because of some similarity in the issues, disposition of the present ease has been delayed pending the decision in Whitehead.
. In the following cases the self-incrimination issue was raised for the first time on appeal and the Courts of Appeals held the defense to be timely: Becton v. United States, 412 F.2d 1005 (8th Cir. 1969); United States v. Lopez, 414 F.2d 272 (2d Cir. 1969). The plea has also been found to be timely on motion to vacate (28 Ü.S.C. § 2255): Rowell v. United States, 415 F.2d 300 (8th Cir. 1969), petition for cert. filed, 38 U.S. L.W. 3304 (U.S. Nov. 18, 1969) (No. 873); United States v. Santos, 417 F.2d 340 (7th Cir. 1969), vacated, 397 U.S. 46, 90 S.Ct. 811, 25 L.Ed.2d 36 (U.S. Feb. 24, 1970). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
8
] | songer_genresp2 |
Irmtrud and Eric MILLER v. APARTMENTS AND HOMES OF NEW JERSEY, INC.; Peter Ronay; CIB International, Inc.; Anthony Lacetola and James Nuckel, CIB International, Inc., Anthony Lacetola and James Nuckel, Appellants.
No. 80-2260.
United States Court of Appeals, Third Circuit.
Argued Feb. 12, 1981.
Decided April 22, 1981.
Jane W. Vanneman (argued), National Committee Against Discrimination in Housing, Washington, D. C., James Sacher, Middlesex County Legal Services Corp., New Brunswick, N. J., Andre Shramenko, Hackensack, N. J., for appellees.
Richard E. Snyder (argued), John D. Horan, Goodman, Stoldt & Horan, Hackensack, N. J., for appellants CIB International Inc., Anthony Lacetola and James Nuckel.
Before ALDISERT and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM, District Judge .
Honorable Hubert I. Teitelbaum, United States District Judge for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
TEITELBAUM, District Judge.
The matter sub judiee is an appeal from the decision of the District Court of New Jersey finding illegal racial discrimination in housing and awarding relief. The trial court, in the non-jury proceeding below, determined that the plaintiffs-appellees had impermissibly been denied the enjoyment of certain rental housing because of their race and awarded compensatory and punitive damages as well as attorney’s fees. The defendants-appellants do not challenge the finding of liability, but rather have urged that the award was too high a price to pay for discriminating. A careful review of appellants’ claims convinces us that the trial court committed no error. We affirm the judgment for the reasons set forth below.
I.
In August of 1973, Irmtrud Miller, a white woman, visited the offices of Apartment and Homes of New Jersey, Inc. (hereinafter Apartments and Homes), the rental agent for apartments owned by James Nuckel and/or CIB International, Inc., (hereinafter CIB) a corporation owned by Mr. Nuckel. There Mrs. Miller met Peter Ronay, a broker employed by Apartments and Homes. They went to the Florence Apartments in Little Ferry, New Jersey. The resident superintendent gave Mr. Ronay a key for a vacant apartment, apartment sixty-seven. Mr. Ronay told Mrs. Miller the apartment was available. Mrs. Miller agreed to rent the apartment for herself and her husband, left a deposit for the apartment, and completed an application to rent the premises. She was advised that pending the results of a credit check, she could occupy the premises beginning on September 10, 1973.
On September 5, 1973, the Millers met Mr. Ronay to sign the lease. When Mr. Ronay saw that Mr. Miller was black, “there was a perceptible change in [his] attitude,” according to the findings of the district court. The court did not specify what change occurred. In any event, Mr. Ronay and the Millers executed a formal lease for apartment sixty-seven. Mr. Ronay told the Millers that the key would be available at the office of the resident superintendent on September 7,1973. Mr. Miller went to the resident superintendent’s office on the evening of September 7 and asked for the key to his apartment. He did not state which apartment he had rented, and the superintendent did not ask. Instead, the superintendent stated that he had no knowledge of Mr. Miller’s rental of any apartment and asked him to wait outside while he checked further. After waiting about fifteen minutes Mr. Miller again knocked at the door and was told to wait. After another half hour, the superintendent advised Mr. Miller that he had no knowledge of the rental. Mr. Miller asked if he could look at the apartment, but again he did not specify the apartment number. The superintendent reiterated that he had no knowledge of Mr. Miller’s lease, but he took Mr. Miller directly to apartment sixty-seven without ever asking Mr. Miller which apartment he had rented. Mr. Miller specifically requested the keys to apartment sixty-seven and was refused. Mr. Miller described the superintendent’s attitude throughout the encounter as “cold” and testified that the superintendent looked “through” him and not at him. He testified also that he felt humiliated and downgraded, like a “village idiot,” by being made to wait outside the superintendent’s office for approximately forty-five minutes. The next .day the Millers went to the rental offices of CIB. Mr. Lacetola, in charge of the CIB office falsely told the Millers that the apartment had been previously rented. He suggested that they see Mr. Ronay about another apartment.
The Millers returned to Apartments and Homes to find alternative accommodations. Mr. Ronay was sympathetic to their plight, and made some modest, but unsuccessful effort to find another apartment for them. Upon reflection the Millers decided they were entitled to apartment sixty-seven and telephoned Mr. Lacetola to inform him of their position. He agreed that they were entitled to the apartment and indicated that he would have the key on September 10, 1973. On that day, having arranged to vacate their prior residence, the Millers, with all their possessions in a moving van, arrived at the CIB rental office to obtain the key as prearranged. Mrs. Miller’s request for the key was refused, again ostensibly because the apartment had been previously rented. Mr. Lacetola, although he had access to an extensive list of vacant apartments owned by Mr. Nuckel and/or CIB, remained indifferent to the Miller’s plight. After a brief stay with relatives, the Millers by their own efforts were fortunate enough to lease a different apartment. By coincidence it was owned and operated by the appellants, Nuckel and CIB, but the Millers did not deal with Mr. Ronay or the CIB rental office in learning of it. Unfortunately this substitute apartment was at a higher rental, and required the Millers to expend greater sums than they would have paid in apartment sixty-seven for equivalent necessary utility services.
On October 30, 1973, the Millers instituted this action against Apartments and Homes, Mr. Ronay, CIB, Mr. Lacetola and Mr. Nuckel. Near the end of 1975, the plaintiffs agreed to settle their claim against Apartments and Homes and Mr. Ronay for $1,821.00. The action against the remaining defendants proceeded to trial before the court, sitting without a jury. In addition to determining the aforementioned facts, the district court also noted that Mr. Nuckel and CIB had been the subjects of remedial court orders to cease discrimination. Despite those orders, statements made by Mr. Nuckel at his deposition (introduced into evidence at trial) showed his utter disregard for his obligations to promulgate and implement a policy of nondiscrimination. The court found Mr. Nuckel was interested only in building and money, and not in people; people who contributed to Mr. Nuckel’s and/or CIB’s monthly gross rental income of $400,000.00. The court also found that Mr. Nuckel and CIB disobeyed the prior remedial order by failing to instruct employees not to discriminate on the basis of race, and by falsifying required records showing the number of minority tenants.
In addition to these findings, the district court was also obliged to determine the appropriate amount of damages. The damages disputed in this appeal represent a portion of the compensatory damages, specifically, the sum awarded as the difference in rent and utility payments between what the Millers were required to pay and the amount that would have been required for apartment sixty-seven, an amount of $4,451.00; and the award of punitive damages of $25,000 assessed against Mr. Nuckel and CIB. Additionally, the court below held that the defendants were entitled to only a pro tanto reduction for the amounts previously paid by Mr. Ronay and Apartments and Homes in the settlement. Finally, an award of $21,845.00 was made for attorneys’ fees.
II.
As we previously noted, this is not an appeal alleging an error in the finding of liability, but rather a plea that the size of the total award was too great. While the trial court committed no error, several interesting issues have been raised which demand this Court’s attention. We turn now to those issues.
A.
The appellants claim that the district court erred on its ruling on the effect of a settlement upon the liability of the remaining defendants. The district court held that the award of compensatory damages against the appellants should be reduced by $1,821.00, the amount of appellees’ settlement with defendants Mr. Ronay and Apartments and Homes. The appellants argue that instead of this pro tanto reduction for the settlement, the court should have granted them a pro rata reduction of liability. They maintain that since there were essentially two groups of defendants in the case — Apartments and Homes and its employees, and Mr. Nuckel, his employees and subordinates — that the settlement with one group extinguished half of the Millers’ claim.
This the Millers deny. They insist that federal common law should govern with respect to the effect of settlements upon the liability of joint violators of federal civil rights statutes. They further insist that the federal rule relating to settlements should be the rule of pro tanto rather than pro rata reduction.
This case therefore appears to require the Court to decide whether state or federal law applies to such questions under the civil rights statutes, and what the pertinent rule should be. The general problem of whether state law or federal common law should apply to various subordinate issues relating to federal statutory rights is a familiar one. It derives from what Professor Hart called the “interstitial character” of federal law. The general problem extends to questions such as statutes of limitation and tolling rules, mental capacity, right to jury trial of designated issues, defenses in commercial paper law, and implied rights of action under federal statutes as well as to contribution rules. Professor Wright has said:
Whether state law or federal law controls on matters not covered by the Constitution or an Act of Congress is a very complicated question which yields to no simple answer in terms of the parties to the suit, the basis of jurisdiction, or the source of the right which is to be enforced.
C. Wright, Handbook of the Law of Federal Courts 247 (2d ed. 1970). The question is examined in all its complexity by Professor Wright, id. at 247-53, and by Professor Wechsler and his colleagues in Hart and Wechsler’s The Federal Courts and the Federal System at 756-832 (2d ed. 1973) (Bator, Mishkin, Shapiro and Wechsler, eds.).
Happily, the present case may be decided without a comprehensive reevaluation of the entire thicket. Congress provided the courts some modest guidance for resolving the choice of law question in civil rights cases in 42 U.S.C. § 1988. That section provides, in pertinent part:
§ 1988. Proceedings in vindication of civil rights.
The jurisdiction in civil .. . matters conferred on the district courts by the provisions of this chapter ... for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies ... the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....
This section invites federal courts to adopt state rules to further, but not to frustrate, the purposes of the civil rights acts. Its general language invites courts to use their judgment in resolving problems. The cases are not in perfect harmony. This neither troubles nor surprises us. There is, however, a fair uniformity in favor of allowing contribution among the few courts which have considered the general question of contribution under the civil rights acts. See Glus v. G. C. Murphy Co., 629 F.2d 248 (3rd Cir. 1980), petition for cert. filed sub nom. Retail, Wholesale and Department Store Union v. G. C. Murphy Co.,-U.S.-, 101 S.Ct. 351, 66 L.Ed.2d 212 (1980) (contribution allowed where payment by one defendant to the plaintiff settled entire claim); Denicola v. G. C. Murphy Co., 562 F.2d 889 (3rd Cir. 1977); Johnson v. Rogers, 621 F.2d 300 (8th Cir. 1980) (applying state law under section 1988); cf. Grogg v. General Motors Corp., 72 F.R.D. 523 (S.D.N.Y. 1976); I. U. of E. Radio and Machine Workers v. Westinghouse Electric Corp., 73 F.R.D. 57 (W.D.N.Y.1976); Blanton v. Southern Bell Tel. & Tel. Co., 49 F.R.D. 162 (N.D.Ga.1970).
When narrower questions are asked, the decisions tend to disagree. In Johnson v. Rogers, supra, a former deputy sheriff sued the sheriff and the county under 42 U.S.C. § 1983. The plaintiff settled her claim against the county for $7500.00. By the settlement agreement, she agreed “to credit and satisfy only ‘that portion of the total amount of her damages ... which may hereafter be allocated ... in the trial or otherwise to causal [sic] acts or admissions [sic] on the part of the Defendant County of Meeker.’ ” At the trial no damages were assessed against or allocated to the county. The trial court rendered a judgment against the sheriff for $7500.00. The sheriff sought complete exoneration, arguing that the plaintiff’s proved damages had been fully satisfied by the settlement. The Court of Appeals for the Eighth Circuit rejected that claim. It held, initially, that the effect of the settlement was governed by Minnesota law under section 1988.
Since this is a civil rights action brought under 42 U.S.C. § 1983, § 1988 determines choice of law. As construed by the Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 588-90, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), § 1988 instructs that if federal law does not cover an issue, then state law should provide the rule of decision unless “inconsistent with the Constitution and laws of the United States.” In the instant case, as federal law does not answer the question of the effect of a plaintiff’s settlement with one defendant on an award of damages against a non-settling defendant, state law should serve as the federal rule of decision unless inconsistent with the policies underlying a § 1983 cause of action. Among the principal objectives of § 1983 are “compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.” Robertson v. Wegmann, supra, 436 U.S. at 590-91, 98 S.Ct. at 1995. Neither of these concerns would seem to be hindered by adoption of the Minnesota Court’s approach.
Id. at 304. This led the court to examine the Minnesota law. The court concluded that a non-settling defendant is entitled to have the amount of a settlement credited against the plaintiff’s damages only if it appears at trial that the settling defendant would have been liable to the plaintiff. Since that fact was not proved at trial, the sheriff was denied any benefit based on the settlement.
A month after the decision of Johnson v. Rogers, supra, this Court decided Glus v. G. C. Murphy Co., supra. In Glus, female employees of the G. C. Murphy Co. brought a class action under Title VII of the Civil Rights Act of 1964. They sought damages for employment discrimination on the basis of sex. Murphy filed cross-claims against certain unions seeking contribution. Prior to trial, Murphy and the plaintiff class settled the class action. Litigation continued on the cross-claims. The district court held that both Murphy and the unions had violated Title VII, and that Murphy was entitled to contribution with respect to the Title VII settlement.
This Court affirmed that decision, and held that Murphy was entitled to contribution as a matter of federal common law. We noted that Title VII does not specifically deal with the problem of contribution. The problem is interstitial. Whether this particular interstice was to be filled with federal common law or with state law depended upon an extensive analysis of Congressional purpose; of the underlying goals of a statute; of the extent to which the application of federal law would further those goals or the application of state laws would impede them; and of the traditional allocation of functions between state and federal law. Applying that analysis, we found no specific Congressional intent as to contribution; that Congress did intend to make unions liable for discrimination under Title VII; that a rule of contribution would further the purpose of Title VII by inducing employers and unions to be vigilant in observing Title VII requirements and in encouraging conciliation which Title VII favors.
Nothing in this case suggests that a different analysis or a different result should follow in civil rights cases. Neither does Johnson v. Rogers, supra, which was not considered in Glus, convince us that state law, rather than federal law, should apply. Johnson’s discussion of the choice of law problem relied on the text of section 1988 and on the Supreme Court’s decision in Robertson v. Wegmann, supra. We disagree with the Eighth Circuit’s reading of those authorities. Section 1988 declares that the civil rights acts shall be “enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies ... the common law, as modified and changed by the Constitution and statutes of the State ... shall be extended to and govern ... the trial and disposition of the cause.... ” The Eighth Circuit in Johnson held that federal law does not prescribe a rule of contribution in civil rights cases, so state law must apply.
Robertson v. Wegmann, supra, does not require this analysis of the problem. In Robertson, the Supreme Court decided that state law governs some issues of survival of section 1983 causes of action. The decision that federal law is “deficient” with respect to survival was brief and conclusory. In essence the Supreme Court reasoned that the federal law “does not cover every issue that may arise in the context of a federal civil rights action ...” id. 436 U.S. at 588, 98 S.Ct. at 1994. The Court then declared that “one specific area not covered by federal law is that relating to ‘the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant. .. . ’ State statutes governing the survival of state actions do exist, however .... [They provide] the principal reference point in determining survival of civil rights actions....” id. at 589-90, 98 S.Ct. at 1994-1995.
We do not understand that decision to abandon the historic method of analysis of problems of claimed federal common law rights. One traditional ground for refusing to declare federal common law to fill particular interstices of statutory law is this: that the question to be answered is one particularly suited to statutory rather than to judicial solution. Thus federal courts habitually apply state statutes of limitations to federal causes of action where Congress has not adopted an applicable limitation. Another traditional ground for refusing to declare federal common law is that the question to be answered lies in an area which is traditionally of state rather than federal concern. Matters of domestic relations including domestic property allocations such as the division of property upon divorce, and rules of descent, distribution and wills clearly are within this area of traditional state concern. We understand the decision in Robertson to rest on both of these grounds. The Court specifically referred to the existence and diversity of state survival statutes and to the fact that the states generally used statutes (rather than judicial declaration) to abrogate the ancient common law rule against the survival of actions, id. at 589, 98 S.Ct. at 1994. The Court also noted the diversity of state statutes with respect to the kinds of claims which survive and with respect to the identity of the successors, id. at 591. Finally, the Court noted the absence of general federal provisions concerning survival of actions, id. at 589, 98 S.Ct. at 1994.
The present problem is unlike the problem in Robertson in three important ways. First, the rule of contribution is intimately bound up with the nature and extent of the substantive federal rights created by the civil rights acts. Questions of limitation periods and of survival are less related to the substance of the federal rights. See, Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952). Contribution rules declare which defendants are liable and how much they owe. Contribution rules are of high importance in the process of settling claims before trial. Consequently, the selection of a contribution rule bears on the work of the federal courts as well as on the substantive rights and liabilities of the parties.
Second, contribution rules are not traditional matters of state rather than federal concern. Federal courts have fashioned common law contribution principles in civil rights cases, Glus, supra, and in anti-trust cases, Wilson P. Abraham Constr. Corp. v. Texas Industries, Inc., 604 F.2d 897 (5th Cir. 1979), cert. granted sub nom. Texas Industries, Inc. v. Radcliff Materials, Inc.,-U.S.-, 101 S.Ct. 351, 66 L.Ed.2d 213 (1980) (contribution is a matter of federal law). Federal contribution rules have long governed collision cases in admiralty, Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), and govern the availability of contribution in admiralty actions for personal injury not based on collisions, id., Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974).
Finally, contribution rules, unlike limitations and survival rules, are not invariably legislative creations. Federal courts have fashioned contribution rules in various fields. Some state courts have overruled the ancient rule against contribution without waiting for the adoption of a contribution statute. W. Prosser, Handbook of the Law of Torts § 50 at 306-07 (4th ed. 1971). Thus no special considerations of institutional competence prevent the courts from elaborating a federal common law of contribution in civil rights cases.
Our decision that federal law determines the availability of contribution in federal civil rights suits requires us to determine what that rule is where one of two defendants settles with a plaintiff before a trial. The non-settling defendants claim that they should receive a pro rata reduction of the damages award because the plaintiff has deprived the defendant of recourse against the settling defendant. This, the defendant urges, would be the result under the “enlightened” New Jersey rule. The plaintiff replies that the district court correctly applied a rule of pro tanto reduction.
Our decision in the Glus case, supra, does not resolve this problem. There the only defendant settled the plaintiffs entire claim. The defendant then sued the joint tort-feasor for contribution, and received it. There this Court did not have to consider the effect of a settlement which ended the settling defendant’s direct liability to the non-settling joint tort-feasor. The effect such settlements should have is not an arid and technical question. It is one rooted in important and conflicting principles of public policy. Three principles must be considered in choosing the rule.
First, the law generally seeks to assure the tort victim neither more nor less than one complete satisfaction of his claim. A rule of pro tanto reduction accomplishes this goal. A rule of pro rata reduction frustrates it to the extent that the plaintiff makes a good or a bad settlement.
Second, the law seeks to encourage settlements. A rule that the settling defendant will remain liable to contribute after an award against a non-settling defendant would impede settlements. So would a rule that the plaintiff must give non-settling defendants the benefit of a pro rata reduction in their liability. The 1939 Uniform Contribution Among Tort-feasors Act emphasized competing policies rather than the policy of promoting settlements. Section 4 of the 1939 Act required a pro tanto credit for the amount of settlements the plaintiff received. However, Section 5 declared that settling defendants remained liable to contribute to non-settling defendants unless the .release provided for a pro rata reduction of the plaintiff’s damages recoverable against all the other tort-feasors. The 1955 Uniform Contribution Among Tort-feasors Act abandoned that policy choice. The 1955 Act retains the direct pro tanto credit rule. But section 4(b) now provides:
When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death; . .. (b) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.
See, 73 A.L.R.2d 403 (1960).
Third, considerations of justice suggest that tort-feasors whose conduct has caused a plaintiff a single injury should be equally liable (or, in comparative fault jurisdictions, should be liable in proportion to the degree of their fault) for the injury. A rule of pro rata reduction achieves the goal of equality albeit at the expense of other values. The same could be said of the rule of the 1939 Act which held a settling defendant liable to contribute. A rule of pro tanto reduction, on the other hand, defeats a goal of equality.
None of these competing principles is insignificant. The law must choose to promote some at the expense of others. The choice has varied in different jurisdictions, and some courts have chosen to avoid innovation while calling for a legislative solution to the problem of choice. The issues posed are clear. The work of the law requires an early and definite declaration of a rule for the guidance of attorneys and litigants. The question of contribution rules is fairly presented in this case, and should not be avoided or deferred. As Judge Higginbotham of this panel wrote in Glus,
There are countervailing arguments, and the policy choice is a difficult one. But the litigants before us have tendered the issue, and its closeness does not absolve us from the obligation to decide it. Nor does our action become an impermissible encroachment on the legislative branch, merely because of the difficulty of the issue presented. [Whichever rule we adopt,] we must make a choice.
Supra at 257. In making our choice, we accord the least weight to the third principle. We believe that parties generally will have sufficient incentive to negotiate settlements as vigorously as they can, and that in most cases the settlements achieved will not deviate unacceptably from the aimed for proportionality of payment. We further believe that in most cases favoritism will present no problem, and that skilled attorneys will be able to discover collusive settlements and avoid the feared harmful effects of the collusion. We see no necessary conflict between the first two policies. The policy of allowing complete satisfaction is furthered by a rule of pro tanto credit. And the rule of pro tanto credit is plainly preferable to a rule of pro rata credit in encouraging settlements. We therefore hold that in federal civil rights cases, where one or more defendants have settled with a plaintiff, the damages recoverable by that plaintiff shall be reduced by the amount of the settlement received. Since we see nothing inconsistent with this rule in the decision of the district court, its decision on this point will be affirmed.
One further issue concerning contribution requires discussion. The decision of the district court did not specify whether it was based on the New Jersey law of contribution or on federal law. New Jersey law generally allows non-settling defendants a pro rata credit for settlement. Theobald v. Angelos, 44 N.J. 228, 208 A.2d 129 (1965). However, the non-settling defendant has the burden of proving that the settling defendant was a proper source of contribution, i. e., that the settling defendant would have been liable to the plaintiff for causing the same injury which the non-settling defendant caused. If the non-settling defendant cannot prove this, he is entitled only to a pro tanto credit, id. In this case the decision of the district court does not hold that Mr. Ronay or Apartments and Homes would have been liable to the plaintiffs. In fact, it appears that they would not have been liable. Mr. Ronay, as agent for the non-settling defendants, entered into a lease with the Millers. When the non-settling defendants repudiated it, Mr. Ronay provided further assistance to the Millers. It does not appear that he discriminated against the Millers on the basis of race. Therefore even if New Jersey law applied on the issue of contribution, the decision of the district court would be affirmed.
B.
Additionally, this appeal calls upon the Court to consider whether the limit on the award of punitive damages contained in 42 U.S.C. § 3612(c) creates an absolute ceiling on punitive damages when concurrent liability is established under the Fair Housing Act and section 1982. Although this issue is one of first impression in this Court, decisions elsewhere have held that no ceiling exists, Dillon v. AFBIC Development Corporation, 597 F.2d 556 (5th Cir. 1979) and Fountila v. Carter, 578 F.2d 487 (9th Cir. 1978).
Section 1982 and the Fair Housing Act stand independently of each other. Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 286 (1969) and Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). While both statutes prohibit racial discrimination in real estate transactions, the language of each statute suggests that some forms of discrimination are not prohibited by both of these provisions, the Fair Housing Act does not prohibit racial discrimination in transactions having no nexus to realty, and section 1982 does not prohibit discrimination based on sex, religion or national origin. Thus to accept the proposition urged by the defendants, that the award of punitive damages be governed by reference to section 3612(c) when there is concurrent liability under the Fair Housing Act and section 1982, would be to create an undesirable anomaly in the law; punitive damages for racial discrimination having some nexus to realty would be limited to $1000 while no such limit would preclude a greater award for similar conduct in a transaction involving only personalty.
Because of the independence of the Fair Housing Act and section 1982 and because of our desire to avoid this unjustifiable result, we hold there is no ceiling on the award of punitive damages under these circumstances. The Court expresses no opinion as to the applicability of section 3612(c) when the discriminatory conduct is illegal solely under the Fair Housing Act as that problem is not presently before us. However, it is noted that the Fair Housing Act and section 1982 are not completely overlapping and may both remain viable depending upon the facts involved.
C.
Having decided that section 3612(c) does not limit the award of punitive damages in this case, we turn to the defendant’s contention that the district court had no basis to assess $25,000 in punitive damages against Mr. Nuekel and CIB, jointly. Federal courts award punitive damages when a defendant has acted “with actual knowledge that he was violating a federally protected right or with reckless disregard of whether he was doing so,” Coehetti v. Desmond, 572 F.2d 102, 106 (3d Cir. 1978), or “with such conscious and deliberate disregard of the consequences of his actions to others that his conduct is wanton.” Knippen v. Ford Motor Co., 546 F.2d 993, 1002 (D.C.Cir.1976) (quoted in Fountila v. Carter, 571 F.2d 487, 491 (9th Cir. 1978). We hold an employer liable for punitive damages for the conduct of his agent when the record shows that he was, “by action or knowledgeable inaction, involved in the wrongdoing,” Marr v. Rife, 503 F.2d 735, 745 (6th Cir. 1974), or that he has “authorized, ratified, or fostered the acts complained of.” Williams v. City of New York, 508 F.2d 356, 361 (2d Cir. 1974). The district court correctly applied those standards in this case. App. at 130-31. Considering that Mr. Nuekel and CIB had previously entered into a consent decree agreeing to pursue a policy of non-discrimination, and that Mr. Nuekel blithely admitted, via deposition, that he had not taken any action either to implement or enforce a policy of non-discrimination, but rather his only interest was to make money and further considering that guesswork alone was used to fulfill requirements to report the number of minority tenants, this Court is satisfied that the district court’s assessment of $25,000 punitive damages against entities receiving between $300,000 and $400,000 per month in gross rentals was not an abuse of discretion.
D.
The defendants challenge a portion of the compensatory damage award, specifically, the $4451.00 awarded as the difference in rent and utility bills between the substitute apartment and apartment sixty-seven. It is suggested that this award was improper because the Millers received fair economic value in exchange for their rent and utility payments and therefore suffered no legal damage. Defendants further contend that if the plaintiffs did suffer legal damage, then the proper measure of damages should be, by analogy to the measure of damages when a seller breaches a contract to sell real property, the difference between the rent specified in the lease for apartment sixty-seven and the fair market value of that apartment. The defendants also urge that the trial court erred in not finding that the Millers failed to mitigate damages in remaining at a superior and expensive substitute apartment.
We reject the contention that the Millers suffered no legal damage; the substitute apartment was “all electric” while apartment sixty-seven was not. Therefore simply due to the economics of the utility market, the plaintiffs were forced to pay more at the substitute apartment for substantially the same value they would have received at apartment sixty-seven. We also note the substitute apartment complex had been described by Mr. Ronay as “too expensive” suggesting that it was overpriced and that its rent was in excess of its fair market value. Further, if and to the extent that the Millers did receive more value at the substitute apartment, this can be viewed as a forced reallocation of their monetary resources, i. e. because of defendants’ actions plaintiffs were forced to pay more for an apartment than they wished and thus, had less money available to be used for other purposes.
Although defendants contend a real property measure of damages is proper, we conclude that the difference in rent and utility bills between the two apartments is the proper measure of damages in these circumstances. Upon consideration of the trend to treat leases within the framework of contract rather than property law, and the concept of “cover” in sales transactions, we find an appropriate remedy for defendants’ racial discrimination is to allow appellees to “cover.” See Young v. Parkland Village, Inc., 460 F.Supp. 67, 71 (D.Md. 1978), Walker v. Fox, 395 F.Supp. 1303, 1306 n.2 (S.D.Ohio 1975), Stevens v. Dobs, Inc., 373 F.Supp. 618, 623 (E.D.N.C.1974), for decisions awarding compensatory damages measured by difference in rent and/or utility bills without discussion.
Whether plaintiffs failed to mitigate damages depends upon the reasonableness of their conduct; the finding of the trial court is one of fact reversible only for clear error. Williams v. Albemarle City Bd. of Education, 508 F.2d 1242 (4th Cir. 1974). Considering all of the facts and circumstances of this case, the district court’s finding of reasonableness is not clearly erroneous and must be sustained.
E.
There is also a challenge to the award of attorneys’ fees. Plaintiffs have been represented by public interest attorneys in these proceedings and are not obligated to pay for legal services. The district court awarded $21,845.00 as attorneys’ fees under the Civil Rights Attorney’s Fees Award Act of 1976. This award is opposed on four bases.
The principles controlling the award of attorneys’ fees are well-established in this Circuit. We will therefore briefly address defendants’ four arguments. Defendants first contend since the Millers are not obligated to pay their public interest attorneys, the award is a windfall. That argument was previously rejected in Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), which established that attorney’s fees may be awarded litigants represented by public interest attorneys. Rodriguez mandates that such award must accrue to counsel to avoid a windfall to litigants. The Court feels secure that the district court’s award of attorneys’ fees contemplated payment to the attorneys.
Defendants also suggest that the district court did not, but should have, considered plaintiffs’ ability to pay attorneys’ fees, particularly in light of the substantial punitive damages awarded. In Hughes v. Repko, 578 F.2d 483 (3rd Cir. 1978) we expressly left open the question of whether a court may take into account ability to pay attorneys’ fees, and left this issue for determination in the first instance by the district court on remand. In the matter sub judice the district court did in fact consider the Millers’ ability to pay and found that they could not afford private counsel to engage in this type of litigation. The district court performed the analysis suggested by the defendants; the plaintiffs do not assert that this was error. Given this posture, we perceive no need to resolve the question left open in Hughes. Additionally, the proper relationship between an award of attorneys’ fees and punitive damages was addressed in Aumiller v. University of Delaware, 455 F.Supp. 676 (D.Del.1978), aff’d, 594 F.2d 854 (3rd Cir. 1979), which held that the award of attorneys’ fees should not be reduced by sums awarded as punitive damages.
Moreover defendants urge that the amount awarded as attorneys’ fees must be reduced to the actual costs incurred by the public interest organization. Rodriguez, supra, held that the award of attorneys’ fees to public interest attorneys should be made on the basis of reasonable hourly rates based on experience and expertise of the attorneys and that the award should not be limited to the actual salaries paid public interest attorneys. We are in accord with that holding.
Finally, the defendants contend that the amount awarded as attorneys’ fees should be adjusted downward because of the limited effects and limited benefits of this litigation. Hughes v. Repko, supra at 492, (Garth, J., concurring) suggests factors which may be considered in adjusting the lodestar amount (reasonable number of hours times reasonable hourly rate). An assessment of these factors leads to the conclusion that the lodestar amount need not be reduced. For all of the foregoing reasons, the district court did not abuse its discretion in the award of attorneys’ fees.
The judgment of the district court will be affirmed.
. Despite the statements made to the Millers that the apartment had been rented previously, on September 12, 1973, a white tester was shown three apartments in the Florence Apartments complex, including apartment sixty-seven, and was informed that all were available.
. This matter was originally filed as a class action, however the motion for certification was denied. No appeal has been taken from that decision.
. The remainder of the compensatory damages were for moving expenses, car rental expenses, and telephone expenses totalling $801.00. Mr. Miller was awarded $3,500 for pain and suffering and deprivation of rights and Mrs. Miller was entitled to $2,500 to include her loss of consortium. The propriety of these awards is not disputed.
. The appellants say the court should have followed the “enlightened” New Jersey rule on this issue, though they do not specify whether that rule should have been applied because of the site of the controversy or because that rule should become the uniform federal rule.
. This case deals only with the effect of a settlement by one defendant in a tort case upon the liability of non-settling defendants. It does not deal directly with problems of contribution among joint tort-feasors. However, the two problems are so intertwined that they cannot sensibly be treated in isolation. At some points in this decision the rules governing these problems will be referred to as “contribution rules” for simplicity.
. This principle is generally stated in this form, without regard to the necessary limitations found in rules which require the victim to bear most of his litigation costs and which allow him to keep receipts from “collateral sources” without a corresponding reduction in the defendants’ liability.
. An argument has been made that a rule of pro tanto reduction is unjust for an additional reason. The pro tanto rule, the argument goes, encourages favoritism and collusion. A plaintiff may settle his claim against one defendant for a small payment with the understanding that the settling defendant will then help the plaintiff to present a strong case against the remaining defendants.
. We note, without purporting to decide an issue not present in this case, that section 4 of the 1955 Uniform Act discharges settling tortfeasors when a release is given “in good faith.”
. The parties have assumed in this case that the settlement by Ronay and Apartments and Homes discharges them from claims of contribution. We believe that this assumption, which reflects the rule of the 1955 Uniform Act, is correct as a matter of federal law.
. We noted that the same issue of burden of proof may arise under the federal rule in actions for contribution from non-defendants, such as the action in Glus. New Jersey is not alone in requiring that a party seeking contribution bear the burden of proof that his opponent would have been directly liable. Johnson v. Rogers, supra at 304 (Minn.); the Uniform Act of 1955, § 1(a); Prosser, § 50 at 309.
. See also, Bishop v. Pecsok, 431 F.Supp. 34 (N.D.Ohio 1976); Parker v. Shonfeid, 409 F.Supp. 876 (N.D.Cal.1976); Clemons v. Runck, 402 F.Supp. 863 (S.D.Ohio 1975); Allen v. Gifford, 368 F.Supp. 317 (E.D.Va.1973); Wright v. Kaine Realty, 352 F.Supp. 222 (N.D.Ill.1972).
. Such a construction would limit the award of punitive damages to $1000 for a racially motivated refusal to sell a farm while no limit on the award of punitive damages would exist for racially motivated refusal to sell a tractor for use on the farm, both of which are prohibited by section 1982.
. Appellees do have a retainer agreement with original counsel for limited services performed.
. The district court calculated the lodestar and made no adjustment for contingency or quality factors; that portion of the judgment was not appealed from. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
1
] | songer_direct1 |
Benito CONCEPCION, Appellant, v. Menelio Cruz SOTO and Virgin Islands Water and Power Authority.
No. 75-1155.
United States Court of Appeals, Third Circuit.
Argued April 22, 1975.
Decided July 7, 1975.
Leroy A. Mercer, Christiansted, St. Croix, V. L, for appellant.
Verne A. Hodge, Atty. Gen. of the Virgin Islands, Emory W. Reisinger, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before HASTIE, GIBBONS and HUNTER, Circuit Judges.
OPINION OF THE COURT
HASTIE, Senior Circuit Judge.
This is an appeal from a judgment that denied the petition of a judgment creditor for an order “commanding the [Virgin Islands Water and Power Authority] to make payment of” a $20,000 money judgment, plus costs and an attorney’s fee, entered against the Authority in a tort action for personal injury and property damage. Failure of the Authority to respond to the original complaint had resulted in imposition of liability by default. Thereafter, damages had been determined by a jury.
The Virgin Islands Water and Power Authority is an incorporated instrumentality of the Government of the Virgin Islands. In the Act of August 13, 1964, No. 1248, Sess.L.1964, 30 V.I.C. (1974 Supp.) § 103, the Legislature of the Virgin Islands created this corporate instrumentality, defined its functions and powers, authorized it to issue bonds and created and limited its amenability to judicial process. While the enumerated powers of the Authority included the capacity “to sue and be sued”, 30 V.I.C. § 105(4), its amenability to judicial process was restricted by the following provision:
“All property including funds of the Authority shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall any judgment against the Authority be a charge or lien upon its property; Provided, however, That this subsection shall not apply to or limit the right of bondholders to pursue any remedies for the enforcement of any pledge or lien given by the Authority on its rates, fees, revenues, or other income or any other funds.” 30 V.I.C. (1974 Supp.) § 111(a).
We think that the relief sought here, a judicial order that would compel the Authority to surrender its assets in payment of a money judgment for tortious personal injury, is within the meaning of the quoted prohibitory language, since the order sought would be “judicial process” designed to reach the property of the Authority.
This does not make the right to sue the Authority or the obtaining of judgment against it meaningless. As a responsible agency the Authority can, and apparently does, carry liability insurance.
Separately, the appellant contends that the quoted provision of Section 111(a) was in effect repealed by a subsequent comprehensive waiver of governmental immunity from tort liability that was enacted in the 1971 Virgin Islands Tort Claims Act. 33 V.I.C. (1974 Supp.) § 3408.
Whether this is a tenable argument depends upon the following provision of the Authority creating 1964 statute:
“Insofar as the provisions of this chapter are inconsistent with the provisions of any other Act of the Legislature of the Virgin Islands, the provisions of this chapter shall be controlling and no law heretofore or hereafter passed governing the administration of the Government of the Virgin Islands or any parts, office, bureaus, departments, commissions, municipalities, branches, agents, officers, or employees thereof shall be construed to apply to the Authority unless so specifically provided . . . .” 30 V.I.C. (1974 Supp.) § 122.
The Tort Claims Act does not expressly overrule the particular exemption from judicial process granted in Section 111(a) of Title 30 and now relied upon by the Authority. Indeed, the Tort Claims Act makes no mention whatever of the Authority. But Section 122 of Title 30, in terms and in legal effect, has precluded repeal of Section 111(a) by implication. Therefore, the Tort Claims Act cannot properly be read as having that effect.
The judgment will be affirmed.
. The briefs indicate that the Authority carries liability insurance but that the insurer has refused to entertain a claim in this case unless the default shall be set aside and opportunity provided to defend the action on its merits.
. While we hold that the general waiver of governmental immunity in 33 V.I.C. § 3408 does not affect the special statutory provisions concerning the Water and Power Authority, we also observe that, even if the Tort Claims Act were applicable here, the plaintiff would be confronted with a statutory exclusion of default judgments from the benefits of the Tort Claims Act. 33 V.I.C. (1974 Supp.) § 3411. The time and method of asserting such a claim also are restrictively prescribed. 33 V.I.C. (1974 Supp.) § 3409. • | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? | [
"legislative",
"executive/administrative",
"bureaucracy providing services",
"bureaucracy in charge of regulation",
"bureaucracy in charge of general administration",
"judicial",
"other"
] | [
2
] | songer_respond1_5_2 |
SUPERSCOPE, INC., Plaintiff, Appellee, v. BROOKLINE CORP., etc., Defendant, Appellee. Robert E. Lockwood, Defendant, Appellant.
No. 83-1129.
United States Court of Appeals, First Circuit.
Argued Aug. 3, 1983.
Decided Aug. 31, 1983.
George L. Bernstein, Boston, Mass., for defendant, appellant.
Paul E. Heimberg, Brookline, with whom Julius Thannhauser, and Riemer & Braunstein, Boston, Mass., were on brief, for Superscope, Inc.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZGIMENEZ, District Judge.
Of the District of Puerto Rico, sitting by designation.
LEVIN H. CAMPBELL, Chief Judge.
Superscope, Inc., appellee, supplied Brookline Corp. with inventory for Brook-line’s chain of retail stores. Payment for the inventory was secured by a purchase money security interest. On November 14, 1980, appellant Lockwood, who was the president, treasurer, and clerk of Brookline, executed and delivered a personal guaranty to Superscope guaranteeing Brookline’s indebtedness in excess of $100,000. The guaranty provided that recourse to Lockwood would be had “simultaneous with proceeding against any security taken and held to satisfy all debt of [Brookline] to [Super-scope] and with exercising any other remedy available to [Superscope] against [Brook-line].”
On April 8, 1981, Brookline filed a petition for relief under Chapter 11 of the United States Bankruptcy Code. On April 13, 1981, Superscope brought the present action against Brookline and Lockwood in the district court. On April 8, 1982, the Chapter 11 proceeding was converted into a Chapter 7 liquidation.
After Superscope had moved for summary judgment in the instant case against both defendants, the parties stipulated that Brookline owed Superscope $176,814.19. Thereafter, the district court entered judgment in the amount of $76,814.19 against Lockwood, that being the portion of the stipulated amount owed by Brookline in excess of $100,000. From that judgment, Lockwood appealed to this court. We agree with the district court that Superscope established all the elements of its case and that no material factual dispute sufficient to defeat summary judgment was raised. Brookline’s underlying obligation is undisputed and fully liquidated. Lockwood does not deny the existence of the debt or his guaranty of a portion thereof. Brookline is clearly in default as the debt has been due and owing for over 30 days and it has filed for bankruptcy. The several letters sent by Superscope to Lockwood and Lockwood’s position in the corporation, as well as the filing of this suit, provided sufficient notice to Lockwood of Brookline’s default. Lastly, the furnishing of credit to Brookline on Lockwood’s promise is sufficient consideration; no benefit need pass directly to Lockwood.
The sole question on appeal is whether Superscope complied with the condition that it proceed simultaneously against both the security and the guarantor. Appellants argue that by filing a claim as an unsecured creditor, Superscope abandoned its security and therefore lost its right to proceed against Lockwood on the guaranty. The district court held, and we agree, that Superscope did not abandon its security and took all required action precedent to realizing on the guaranty.
Brookline’s petition for reorganization listed Superscope as a secured creditor. Under § 1111(a) of the Bankruptcy Code, a proof of claim is deemed filed under § 501 if that claim appears in the schedule filed by the debtor under § 521(1) so long as the claim is not scheduled as disputed, contingent or unliquidated. Thus, Superscope did not have to file a proof of claim for its secured interest because Lockwood had listed Superscope as a secured creditor in Brookline’s schedule. Superscope, to be sure, also filed a proof of claim as an unsecured creditor under § 501. But as the Committee notes to the Senate Report on § 501 explain, S.Rep. No. 989, 95th Cong., 2d Sess. 61, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5847, a creditor who is only partially secured, as Superscope appears to have been, may file a proof of claim as an unsecured creditor. Given its listing elsewhere as a secured creditor, Superscope’s filing as an unsecured creditor did not operate to abandon the security but merely gave Superscope claims both as a secured and an unsecured creditor. Nothmg in § 1112 or elsewhere suggests that when the case was converted to Chapter 7 the proof of claim deemed filed under § 1111 disappeared.
The only possible additional action that Superscope could have taken that it did not take was to seek relief from the automatic stay under § 362(d). Like the court below, we do not believe that the guaranty required Superscope to realize on its security before it could proceed against Lockwood. The condition merely required that it proceed simultaneously. The existence of a sufficient proof of claim as a secured creditor coupled with the filing of a proof of claim as an unsecured creditor and the bringing of this action meets this condition; thus, it was unnecessary for Superscope to seek relief from the stay.
Affirmed.
. Schedule A-2 entitled “Creditors Holding Security,” which was filed for Brookline by Lockwood himself, showed a debt to Superscope of $176,814.19; the schedule also showed that this amount was secured by $10,000 of inventory. It was explicitly stated in the schedule that the claim was not contingent, unliquidated or disputed.
. Since Superscope was only partially secured, it properly filed a proof of claim as an unsecured creditor in hope of realizing more than the $10,000 value of its security. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. | This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
9
] | songer_respond2_1_3 |
Oliver T. CARR, Jr., Trustee et al, v. DISTRICT OF COLUMBIA, a Municipal Corporation et al. United States of America, Appellant.
No. 79-1571.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 30, 1980.
Decided Dec. 18, 1980.
Carl Strass, Atty., Dept, of Justice, Washington, D. C., with whom Dirk D. Snell, Atty., Dept, of Justice, Washington, D. C., was on brief, Sanford Sagalkin, James W. Moorman and James C. Kilbourne, Attys., Dept, of Justice, Washington, D. C., for appellant United States of America.
William Joseph H. Smith, Washington, D. C., with whom S. Lamont Bossard, Jr., Redondo Beach, Cal., was on brief, for appellees.
Before ROBINSON, WILKEY and GINSBURG, Circuit Judges.
GINSBURG, Circuit Judge:
In one of the most successful examples of urban development based upon cooperation between government and the private sector, Maryland landowners and trustees appointed by President George Washington arranged in 1791 for transfers of land to establish a Federal City, later named Washington. In this action and similar litigation in the Court of Claims and District of Columbia courts, latter twentieth century real estate developers have rehearsed the history of the creation of the nation’s capital. The context is a dispute over the District’s current authority to impose a charge upon closing an “original alley,” i. e., an alley located within the original boundaries of the City.
The most thorough ventilation of the alley-closing dispute occurred in the District of Columbia courts. Recently authenticated original documents preserved in the National Archives were carefully studied, and all issues raised in this proceeding were fully and fairly litigated in the parallel proceeding before the D.C. Superior Court and Court of Appeals. We conclude, as did District Court Judge Thomas A. Flannery, ruling on cross-motions for summary judgment, that the adjudication in the District of Columbia courts merits full credit here. Accordingly, we affirm the District Court’s judgment.
I. Background
D.C. Alley-Closing Authority
The D.C. Code authorizes the City Council to close public alleys it finds “useless or unnecessary.” Upon closure, title to the alley space reverts to the owners of the abutting property, and ordinarily no fee may be charged, unless the United States holds title to the land on which the alley stood. If the land is owned by the United States, the District of Columbia may dispose of it “to the best advantage of the locality.” One method of disposition specifically identified in the Code is a cash sale at fair market value. If the D.C. Council elects the cash sale option, the sale proceeds must be paid into the United States Treasury.
It is undisputed that for decades the District government did not elect the cash sale option. The City Council commenced imposing fair market value charges for closing original alleys in 1967. At that time, it was generally assumed that alleys within the original Federal City boundaries were owned by the United States.9 This assumption, the Superior Court declared, was incorrect. In a comprehensive opinion, Judge John Garrett Penn determined, largely from the documents found in the National Archives and not theretofore fully presented to any court, that title to the “original alleys” was not and never had been in the United States. Rather, Judge Penn concluded, Federal City parcels, as first sold to members of the public, encompassed both lot and adjacent alley space. He held, therefore, that on closure of an original alley, title reverted to the abutting property owners under the applicable terms of the D.C. Code, and no sale charge could be imposed. In an appeal brought solely by the United States, the D.C. Court of Appeals affirmed.
The Issue Preclusion Question
The United States urges no facts, issues or argument here that it did not raise in its presentation to the D.C. Court of Appeals. Indeed, its brief in this court simply reruns the points it made, unsuccessfully, in the appellate court across the street. Nevertheless, the United States insists that fresh decision by this court is mandated because the judgments of the D.C. Superior Court and Court of Appeals, in favor of plaintiffs not before this court, are themselves inconsistent with an earlier judgment rendered by the Court of Claims.
Our reconsideration, unencumbered by the adjudication in the District of Columbia courts, is invited on two further grounds. First, the United States contends that the District of Columbia courts lacked subject matter jurisdiction over the controversy. It characterizes the District of Columbia action, and the one before us, as quiet title suits in which federal court jurisdiction is exclusive. Second, the United States maintains that a “pure question of [federal] law” is at stake, an issue on which the decision of a nonfederal court should not bind a federal tribunal.
To explain our conclusion that the United States offers no sound reason for denying full credit to the adjudication in the District of Columbia courts, we set out first the sequence of litigation in the District Court and this court, in the Court of Claims, and in the District of Columbia courts. Thereafter, we consider application to the case before us of the rule of issue preclusion, sometimes referred to as collateral estoppel, the rule that a party, having fully and fairly litigated an issue on a previous occasion, may not relitigate that issue.
Litigation on Three Fronts
Carr v. District of Columbia, 371 F.Supp. 293 (D.D.C.1974), aff’d without opinion, 521 F.2d 324 (D.C.Cir.1975), modified and rehearing denied, 543 F.2d 917 (D.C.Cir.1976) (“Carr II”).
Appellees Oliver T. Carr, Jr. and George H. Beuchert, Jr., as trustees for 1800 M Associates, held legal title to property abutting an original alley. On December 7, 1971, Carr and Beuchert applied for the closing of the alley in order to construct a building on land encompassing the alley space and the several lots surrounding it. Pursuant to a resolution adopted by the D.C. Council on June 6, 1972, the alley was closed on December 12, 1972. Construction commenced thereafter and an office building now stands on the property.
The City Council conditioned the alley closing upon payment of $196,200, representing the fair market value of the land contained in the alley. Carr and Beuchert disputed the Council’s authority to impose the sale charge, although they did not then question United States ownership of the alley. By agreement with the Corporation Counsel, the $196,200 were deposited in escrow with The Riggs National Bank pending judicial determination whether the charge was lawfully imposed.
In January 1973, Carr and Beuchert filed an action in the District Court seeking a declaration that the City Council could not exact a price for the alley space closed. They invoked the jurisdiction the District Court then had in civil actions brought in the District of Columbia where the amount in controversy exceeded $50,000. All agreed that the alley in question was an original alley. Based upon that undisputed fact, Judge Flannery concluded that the Council had authority to sell the property at market value for the account of the United States.
Carr and Beuchert assumed for purposes of the contest that the United States owned the alley. They rested their case on two statutory construction arguments. First, they maintained that, under the relevant D.C. Code provision, the sale authority came into play only when the Council could not otherwise dispose of the alley space in a manner advantageous to the locality. Second, they urged that sale authority was confined to cases in which the District closed a United States alley on its own initiative. Judge Flannery found both arguments insubstantial and this court agreed with his analysis.
While the appeal was under submission, Carr and Beuchert filed motions asserting for the first time in this litigation that the generally held assumption concerning United States ownership of original alleys was erroneous. This dramatic new assertion was not considered by the court because it lacked support in the record. On petition for rehearing, however, the panel explicitly preserved to plaintiffs an opportunity to bring an independent action for relief from the judgment based on the historical evidence recently explored at the National Archives.
Washington Medical Center, Inc. v. United States, 545 F.2d 116 (Ct.C1.1976), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977), petition for relief from judgment denied sub nom. 1776 K Street Associates v. United States, 602 F.2d 354 (Ct.C1.1979).
Shortly after the final disposition in Carr II, the Court of Claims addressed the District’s authority to charge for original alley closings. In a decision consolidating four cases, the earliest commenced in 1972, the latest in 1975, that court adhered to the traditional understanding. It declared the United States owner of the alleys, and therefore held that the closing charges were lawfully imposed by the D.C. Council and properly deposited in the Treasury. The plaintiffs in Washington Medical Center did attempt to show that the first purchasers of original Federal City lots also paid for portions of the alleys. However, the Archives study was still in progress and the plaintiffs were not yet in a position to support their contention with convincing evidence.
The Court of Claims found that the proof plaintiffs did submit lacked “probative value.” 545 F.2d at 126. It characterized plaintiffs’ ownership contention as “afterthought,” and suggested that, in any event, plaintiffs were not comfortably situated to raise the issue. They had paid the alley-closing charges fixed by the D.C. Council without protest, and might have been stopped at the threshold on that account. It was unseemly, the Court of Claims thought, for plaintiffs to claim back from the Treasury amounts they had willingly paid to get the alleys closed. Id. at 120-21.
After the Archives research turned up more secure evidence, some of the Washington Medical Center plaintiffs sought rehearings, and later petitioned for relief from the judgment. The Court of Claims declined to reconsider, noting again plaintiffs’ voluntary payment of the charges, and stressing plaintiffs’ voluntary submission of the case for expedited treatment on incomplete evidence. Had the plaintiffs sought to delay adjudication pending full development of the new evidence, the court would have been accommodating. 602 F.2d at 357. Significantly, the Court of Claims indicated it did not expect that its 1976 judgment would have “an adverse collateral estoppel or res judicata effect on other cases.” Id. at 358.
Chesapeake & Potomac Telephone Co. v. District of Columbia, 106 Daily Wash.L. Rep. No. 104 (D.C.Super.Ct. March 28, 1978), aff’d sub nom. United States v. Chesapeake & Potomac Telephone Co., 418 A.2d 114 (D.C.1980) (“C&P Telephone”).
Largest of the alley-closing controversies, C&P Telephone was commenced in the D.C. Superior Court in 1975, before Washington Medical Center was decided, and while Carr II was pending in this court. The proceeding consolidated six cases instituted by owners of several parcels of realty in downtown Washington. Each parcel abutted an original alley. As in Carr, the alley-closing payments set by the D.C. Council were deposited in escrow pending judicial determination of the Council’s authority to impose the charges.
A full dress presentation followed, including testimony and argument. Center stage in the presentation was a detailed exploration of ancient material both in court and at the National Archives. Items spread before the court included deeds, maps, records of land divisions and dispositions, legal opinions and correspondence, legislative enactments, presidential proclamations and building regulations, all contemporaneous with the establishment of the Federal City. We have already recounted the end-product of the C&P Telephone litigation. (Then) Superior Court Judge John Garrett Penn ruled, and a unanimous D.C. Court of Appeals panel affirmed, that (1) the D.C. Council lacked authority to charge for the alley closings and (2) the realty owners were entitled to return of the money held in escrow.
Carr v. District of Columbia, Civil Action No. 77-445 (D.D.C. January 12, 1979) (“Carr III”).
After this court’s 1976 remand, plaintiffs promptly instituted an independent action and Judge Flannery denied a motion to dismiss it. In the unique circumstances presented, he concluded, Carr and Beuchert ought not be tied to the initial judgment. Plaintiffs had searched with diligence all available D.C. land records. The District’s Surveyor and Corporation Counsel had represented throughout that the United States owned the alleys. The evidence contradicting that representation was located in the National Archives, not a “normal” place for a local land records search. J.A. 25. He reopened the case and, after Judge Penn’s decision in the Superior Court, granted summary judgment to the plaintiffs. Judge Flannery noted that he had given the United States substantial time to review the records in the Archives, and that the government had raised not a single fact indicating that, “on the merits, [the United States] is indeed the owner of the original alleys.” His review indicated three assessments: the extensive and prolonged historical research had set the record straight; the United States had been accorded a full and fair chance to litigate; it was time to bring the alley dispute to a final closing,
II. Legal Analysis
Use of Issue Preclusion as a Sword
Carr and Beuchert were not party to the adjudications concerning original alley closings in the District of Columbia courts or in the Court of Claims. However, the United States defended the District’s alley-closing charges in those cases, as it did in the case before us. Carr and Beuchert invoke the adjudication in the District of Columbia courts as a sword; they seek “offensive” use of the issue preclusion (collateral estoppel) principle to foreclose yet another airing of the District’s authority to condition original alley closings on payment of a fair market value charge by abutting property owners.
In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651, 58 L.Ed.2d 552 (1979), the Supreme Court instructed lower federal courts on the “preferable approach” in a case such as this one. No fixed rule precluding or directing the use of offensive collateral estoppel is appropriate, the Court said. Rather, a case by case analysis should be employed. Trial courts should take into account a variety of eonsiderations, all relevant to the ultimate question: Would application of offensive estoppel be unfair to the defendant? Exposing this unique case to the particularized analysis Parklane approved, we conclude that the determination in the District of Columbia courts should have issue preclusive effect here.
Incentive and Opportunity to Litigate
Two considerations are quickly cleared. First, the United States had every incentive to litigate fully and vigorously, and in fact did so, in the District of Columbia courts. Six cases were consolidated in the District of Columbia C&P Telephone proceeding; only one alley is involved in the current Carr litigation. Nor does the United States suggest it participated with muted zeal in C&P Telephone; indeed, the government concedes that it presented in the District of Columbia courts every fact and legal argument it urges here. Second, the United States does not assert, nor could it plausibly, that federal court procedures afford it outcome influencing opportunities unavailable in the District of Columbia courts.
The Ease of Joining a First Action
Parklane cautions lower courts not to reward a plaintiff who “could easily have joined in the earlier action.” 439 U.S. at 331, 99 S.Ct. at 651. Carr and Beuchert might have joined the several plaintiffs in the C&P Telephone case, but they had compelling reasons to continue the federal court contest. First, C&P Telephone was not “the earlier action.” It was commenced in 1975, over two years after commencement of the Carr II case. Of greater importance, Carr and Beuchert suffered an adverse judgment in the District Court in 1974, and that judgment withstood challenge in this court in 1975 and 1976. Unless Carr and Beuchert prevailed in their effort to set aside the 1974 judgment, they could not have benefited from a decision for plaintiffs in the C&P Telephone litigation. They had “everything to lose, and nothing to gain” by abandoning the fray in the District Court.
In short, Carr and Beuchert were not sideline sitters while others carried the ball. They did not adopt the “wait and see” attitude the Supreme Court had in mind when it declared the “general rule” that a plaintiff who “could easily have joined” a prior action may not offensively invoke issue preclusion. 439 U.S. at 330, 331-32, 99 S.Ct. at 651-652. That general rule simply does not fit this exceptional case.
The Relevance of a Prior Inconsistent Judgment
Parklane also identifies as a factor militating against offensive use of collateral estoppel the existence of a prior inconsistent judgment. 439 U.S. at 330, 99 S.Ct. at 651. Washington Medical Center yielded such a judgment, the United States emphasizes. Moreover, the Washington Medical Center, a loser in the Court of Claims, was allowed to relitigate (albeit as to a different alley) in the District of Columbia courts in C&P Telephone. It would be ironic, the United States asserts, to allow Carr and Beuchert to invoke the C&P Telephone adjudication offensively when the District of Columbia courts in that case rejected the government’s plea for defensive use of collateral estoppel against the Washington Medical Center.
We recognize, as the Supreme Court did, that in many cases it would be “unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant.” 439 U.S. at 330, 99 S.Ct. at 651. We underscore again, however, that the case before us is atypical. The Court of Claims decision in Washington Medical Center was based on an incomplete record. It issued at a time when the Archives research was ongoing. In 1979, when the Court of Claims refused to set aside its 1976 judgment, it appeared to acknowledge the limited effect of that judgment. The 1976 decision was unchallengeable on its record, the Court of Claims said. 602 F.2d at 356. It settled the precise claims in suit, it put to rest any controversy concerning the particular alleys the Washington Medical Center plaintiffs had paid for without protest. But the Court of Claims observed:
Plaintiffs do not allege that our former decision is having an adverse collateral estoppel or res judicata effect on other cases. The decisions they do cite would refute such a claim if made.
We conclude that the Washington Medical Center decision, based as it was on a record that did not include the Archives evidence, should not block reliance in Carr on the C&P Telephone adjudication. The District of Columbia courts carefully canvassed a full record. It would have been an inordinate waste of judicial resources for the District Court to retread the same ground.
The Quiet Title Characterization
In the District Court, in this court, and in the District of Columbia courts, the United States consistently urged that the alley-closing disputes are in reality quiet title actions governed by 28 U.S.C. § 2409a (1977). Exclusive jurisdiction to quiet title to real property in which an interest is claimed by the United States resides in the district courts. Id. § 1346(f). Hence, the United States concludes, the District of Columbia courts lacked subject matter jurisdiction in the C&P Telephone cases. Moreover, the limitation period for actions to quiet title to land in which the United States claims an interest is 12 years, 28 U.S.C. § 2409a(f) (1977), a period the United States asserts has “long since expired.”
We find the argument farfetched. First, we note a certain lapse on the part of the United States in pressing the characterization. The District of Columbia’s authority to impose a sale charge for an alley closing turns on United States ownership of the alley. Therefore, the United States maintains, “this case is in fact a quiet title action, and it cannot be anything else.” Significantly, the United States takes no such position with respect to the Court of Claims adjudication in Washington Medical Center.
Decision in Washington Medical Center also turned on United States ownership of original alleys. The logic is inescapable that if this case cannot be anything but a quiet title action, the Court of Claims case could not have been “anything else” either. But we do not rest our determination on the United States treatment of the quiet title characterization as a “sometimes thing.” We merely observe that on another day, the United States thought a tribunal other than a federal district court had authority to decide as a threshold matter whether the United States owned original alleys.
As the D.C. Court of Appeals stated, abutting property owners in the alley-closing cases were not bringing an action to establish title. They challenged action by the D.C. Council — imposition of a fair market value charge for alley space closed — as beyond the authority of that body under the Street Readjustment Act. Title figured in the litigation as the pivotal issue, but it was a question incidental to the matter directly in controversy.
While we view the C&P Telephone case and, indeed, the Washington Medical Center case, as instances in which a court legitimately determined incidentally an issue it lacks jurisdiction to determine directly, the argument presented by the United States encounters another shoal. The D.C. Court of Appeals, in response to the objection raised by the United States, expressly determined that it had subject matter jurisdiction in the C&P Telephone contest. We decline the invitation to sideswipe that determination:
When the question of the tribunal’s [subject matter] jurisdiction is raised in the original action, in a modern procedural regime there is no reason why the determination of the issue should not therefore be conclusive under the usual rules of issue preclusion. The force of the considerations supporting preclusion is at least as great concerning determinations of the issue of jurisdiction as it is with respect to other issues.
Restatement (Second) of Judgments § 15, comment c at 154 (Tent. Draft No. 6,1979); see Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963).
Nor can we credit the contention that issue preclusion should be withheld because C&P Telephone and the instant case involve “a pure question of law, the interpretation of undisputed facts and documents as a matter of federal law.” The “fact/law” characterization of the issue before us is not critical; it is today well accepted that issue preclusion applies to questions of law and law application as well as to questions of fact. Moreover, what we have said as to the preclusive effect of subject matter jurisdiction determinations sufficiently answers this further contention on the part of the United States.
Conclusion
The precise question we decide today bears restatement. The D.C. Court of Appeals did not rule directly and dispositively 'that owners of parcels abutting original alleys hold title to the alleys, nor do we.
That court did rule definitively that the D.C. Council was without authority under the Street Readjustment Act and related D.C. Code provisions to impose a sale charge for an original alley closing. We hold that further contest on that ultimate issue is precluded here. Accordingly, we reject the request by the United States that we review the “undisputed facts and [public] documents,” and make our own decision on the merits. The decision on the merits made in the District of Columbia courts is that the D.C. Council lacks discretion under the relevant legislation to condition original alley closings on payment of a fair market value price. That once arguable question, we hold, cannot be argued anymore.
Affirmed.
. For discussion of the history of the founding of the Federal City, see Morris v. United States, 174 U.S. 196, 250-59, 19 S.Ct. 649, 671-74, 43 L.Ed. 946 (1899) (with maps at 220-21, 19 S.Ct. at 660-61); Van Ness v. City of Washington, 29 U.S. (4 Pet.) 232, 7 L.Ed. 842 (1830).
. Washington Medical Center, Inc, v. United States, 545 F.2d 116 (Ct.Cl.1976), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977), petition for relief from judgment denied sub nom. 1776 K Street Associates v. United States, 602 F.2d 354 (Ct.Cl.1979).
. Chesapeake & Potomac Telephone Co. v. District of Columbia, 106 Daily Wash.L.Rep. No. 114 (D.C.Super.Ct. March 28, 1978), aff’d sub nom. United States v. Chesapeake & Potomac Telephone Co., 418 A.2d 114 (D.C.1980) (“C&P Telephone").
. Carr v. District of Columbia, Civil Action No. 77-445 (D.D.C. January 12, 1979) (“Carr III"), reprinted in Joint Appendix (“J.A.”) 44-54.
. Street Readjustment Act § 1, D.C. Code § 7-401 (West Supp.1979). In an earlier contest, Judge Sirica observed that a principal economic purpose of this Act was “elimination of barriers to real estate development in the District.” Carr v. District of Columbia, 312 F.Supp. 283, 286 (D.D.C. 1970), aff’d without opinion, No. 24,406 (D.C.Cir.1971) (“Carr I").
. The Council may exact a protective payment from the closure applicant when there is a risk of damage to neighboring property for which the District might be liable. Id. at 285.
. D.C. Code § 7-401 (West Supp.1979); id. § 7-302 (West 1966).
. Id. § 7-325. For fuller description of the relevant D.C. Code provisions, see Carr v. District of Columbia, 543 F.2d 917, 919-24 (D.C. Cir.1976) (“Carr II”).
. Exorbitant statements appear in the opening brief suggesting that United States consent is necessary to close an original alley and that the United States may “charge any sum it wishes” for the closing. Brief for the United States at 17, 18, 22-23. These indulgences in wishful thinking were not repeated at oral argument.
Beyond debate, the Street Readjustment Act, supra note 5, provides no role for the United States in decisions concerning alley closings. In fact, the United States conceded that it “did not involve itself in any decision, past or present, to charge or not to charge for the closing of [original] alleys, that it did not involve itself in the decision to begin charging for the alley closings in 1967,” and that it does not take part in deciding how much to charge for an alley closing, or indeed, whether to charge anything at all. C&P Telephone, supra note 3, 106 Daily WashX.Rep. at p. 1071.
. The assumption prevailed for over 175 years. Washington Medical Center, supra note 2, 545 F.2d at 126.
. C&P Telephone, supra note 3 (D.C.Super.Ct. March 28, 1978).
. The C&P Telephone case, and the litigation here, were similarly styled as actions for declaratory relief. The complaints named only the District of Columbia and the District of Columbia Council as defendants. Plaintiffs sought declarations that the District lacked statutory authority to condition closing of the alleys in question upon payment of a sale charge. Judge Penn in the Superior Court, C&P Telephone, supra note 3, 106 Daily Wash. L.Rep. at p. 1070-71, and Judge Flannery in the District Court, Carr v. District of Columbia, 371 F.Supp. 293, 296-97 (D.D.C.1974), aff’d without opinion, 521 F.2d 324 (D.C.Cir.1975), modified and rehearing denied, 543 F.2d 917 (D.C.Cir. 1976) (“Carr II”), held that the United States was not an indispensable party to the proceedings. In both cases, however, the United States participated actively before the trial courts and, as intervenor, appealed both decisions. The District of Columbia did not join in the appeal to the D.C. Court of Appeals.
. The plaintiffs in the District of Columbia courts were Chesapeake & Potomac Telephone Co., The Supreme Council, 6th & E Street, Inc., Sylvan C. German and Saul H. Bernstein, Ulysses and Lulu Auger, Bicentennial Associates, and Washington Medical Center, Inc. J.A. 87.
. Washington Medical Center, Inc. v. United States, supra note 2. The plaintiffs in the consolidated Court of Claims proceedings were Washington Medical Center, Inc., William J. and Frances S. Cusack, Mary C. Morgan, 1776 K Street Associates, Metropolitan Club of the City of Washington, D. F. Antonelli, Jr. and Jack Kogok. Id. at 118-19.
. See 28 U.S.C. § 1346(f) (1977).
. See Restatement (Second) of Judgments ch. 1, introduction at 1 (Tent. Draft No. 7, 1980). In the traditional terminology, res judicata refers to the preclusive effect of a judgment on the claim involved, while collateral estoppel concerns the judgment’s preclusive effect on issues involved. Id. at 4. Claim preclusion and issue preclusion are more descriptive labels for the same concepts.
It was once the rule that a person who did not participate in a prior action, and therefore was not bound by the judgment there, could not invoke issue preclusion against a party to the prior adjudication. This “mutuality of estoppel” rule has undergone erosion to the point where it is now generally held in the federal courts and in many state courts that “a party who loses the contest of an issue against one adversary is ordinarily precluded from relitigating it against any other adversary.” Id. at 9.
Application of preclusion rules in an interjurisdictional context in the United States has a constitutional dimension. Under the full faith and credit clause, U.S.Const. Art. IV, § 1, and the federal statute associated with it since 1790, 28 U.S.C. § 1738 (1977), it is the general rule that judgments are to have no lesser preclusive effects in any court within the United States than they have in the court from which they are taken. See Restatement (Second) of Judgments, supra, § 134, at 71-83; cf. Restatement (Second) of Conflict of Laws § 95, comment g.
. And now trustees of the successor venture, Square 140 Associates.
In an earlier District Court action, Carr successfully resisted an alley-closing charge the District sought to impose. In that action, alley ownership by the United States was not raised by the parties or discussed by the court. With the “original alley” issue absent from the controversy, Judge Sirica ruled for the plaintiffs, holding that the Street Readjustment Act, supra note 5, limited charges to cases in which the District needed protection against future liability to neighboring property owners whose parcels might be adversely affected by the closing. Carr v. District of Columbia, 312 F.Supp. 283 (D.D.C.1970), aff’d without opinion, No. 24,406 (D.C.Cir.1971) (“Carr/”).
. D.C. Code § 11-501(4) (West Supp.1970). This provision is part of the District of Columbia Court Reorganization Act of 1970, P.L. No. 91-358, 84 Stat. 473; it continued District Court jurisdiction for a 30-month transition period. See generally Williams, District of Columbia Court Reorganization, 1970, 59 Geo.L.J. 483 (1971).
. D.C. Code § 7-401 (West Supp.1979).
. Carr II, 543 F.2d at 929. Although the one-year time limit applicable under Fed.R.Civ.P. 60(b) had expired, timeliness of an independent action is determined less woodenly by doctrines of laches and due diligence. See Restatement (Second) of Judgments § 127, at 121-22, 125 (Tent. Draft No. 6, 1979) (indicating as the sounder approach removal of the fixed time limit for Rule 60(b) relief).
. See note 20 and accompanying text supra.
. Judge Flannery’s appraisal of the case for extraordinary relief is inharmonious with the position taken by the Court of Claims in 1776 K Street Associates v. United States, 602 F.2d 354 (Ct.C1.1979) (the Washington Medical Center case). However, his determination permitting plaintiffs to proceed in the independent action was not challenged by the United States in this appeal.
. Carr III, supra, slip op. at 7, reprinted in J.A. 50. On United States participation in the Carr and C&P Telephone proceedings, see note 12 supra and C&P Telephone, 106 Daily Wash.L. Rep. at p. 1071.
. As the Supreme Court noted in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4, 99 S.Ct. 645, 648 n.4, 58 L.Ed.2d 552 (1979), “offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from [litigating an issue] the plaintiff has previously litigated and lost against another defendant.”
. The Court observed, 439 U.S. at 331 n.16, 99 S.Ct. at 651 n.16, that the approach it outlined is essentially the one advanced in Restatement (Second) of Judgments § 88. See Tent. Draft No. 3, 1976, at 161-74.
. See note 13 supra.
. The active participation of the United States in every aspect of the C&P Telephone case as it unfolded in the Superior Court, see 106 Daily Wash.L.Rep. at p. 1071, leaves no room for argument that the United States ought not be precluded because it lacked formal party status in C&P until it intervened in the D.C. Court of Appeals to obtain the appellate review the District of Columbia refrained from pursuing.
. D.C.Super.Ct.Civ.R. 20(a).
. See pp. 602-603, supra.
. Cf. Parklane Hosiery Co. v. Shore, 439 U.S. at 330 & n.13, 99 S.Ct. at 651 & n.13.
. For reasoned consideration of the ease of joinder factor, see Starker v. United States, 602 F.2d 1341, 1348-50 (9th Cir. 1979).
. See pp. 603-604, supra.
. Brief for the United States at 10.
. The D.C. Court of Appeals noted that “[t]he Court of Claims was without the benefit of the material from the Archives.” C&P Telephone, supra, 418 A.2d at 120 n.13. Cf. Restatement (Second) of Judgments § 88, comment j, at 169 (Tent. Draft No. 3, 1976) (identifying the disclosure of “new evidence that could likely lead to a different result” as important among circumstances tending against application of issue preclusion).
Of course, no preclusive effect could be claimed for Washington Medical Center as to property owners who were not before the court in that case. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971).
. 1776 K Street Associates, 602 F.2d at 358. The Court of Claims thus recognized that newly discovered evidence, even if insufficient to justify setting aside a judgment, may warrant refusal to give the judgment preclusive effect in other actions. See Restatement (Second) of Judgments § 88, comment j, at 169 (Tent. Draft No. 3, 1976); cf. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 333, 91 S.Ct. 1434, 1445, 28 L.Ed.2d 788 (1971); State Farm Fire & Casualty Co. v. Century Home Improvements, Inc., 275 Or. 97, 550 P.2d 1185, 1191 (1976).
. See Brief for the United States at 14-19.
. Id. at 18.
. Id. at 16. But see id. at 19-20 & n.7 (suggesting United States may have acquired the alleys by occupation, in which event “no quiet title suit is proper”).
. In Washington Medical Center, the United States asked the Court of Claims to rule: (1) plaintiffs stand estopped from claiming refunds of alley-closing charges because they paid the charges without protest, and (2) the United States had fee simple title to the original alleys, hence the District of Columbia was fully authorized to make the charges. 545 F.2d at 120.
. C&P Telephone, 418’A.2d at 117.
. Supra note 5.
. For the D.C. Court of Appeals’ reasoning and conclusion to this effect, see C&P Telephone, 418 A.2d at 117.
. See Restatement (Second) of Judgments § 68.1, comments d & e, at 35, 37-38 (Tent. Draft No. 4, 1977).
. C&P Telephone, 418 A.2d at 117.
. We do not regard this case as the exceptional situation in which a jurisdictional question raised, litigated and decided is nonetheless subject to a second look. See Restatement (Second) of Judgments § 15, Reporter’s Note, at 161-64 (Tent. Draft No. 6, 1979).
. Brief for the United States at 13.
. See Restatement (Second) of Judgments § 68, at 1, 4, 18-19 (Tent. Draft No. 4, 1977); id. § 68.1(b). An issue subject to preclusion may be one of “evidentiary fact,” “ultimate fact” or law. Id. § 68, comment c, at 4. A question of law falls outside the general rule of issue preclusion when (1) the two actions involve substantially unrelated claims, or (2) a new determination is warranted to account for an intervening change in the applicable law or to avoid inequitable administration of the law. Id. § 68.1(b). Neither exception is relevant here.
Where there is a lack of total identity between the matter presented in the first and second actions, a key factor in deciding whether the issue of fact or law involved is “the same,” is the degree of overlap between the evidence and argument to be advanced in the second proceeding, and that advanced in the first. Id. § 68, comment c, at 3. Carr and C&P Telephone were not totally identical. Different alleys were involved in the two cases. But the United States concedes there was no evidence or argument to present to Judge Flannery or to this court that had not been presented earlier to Judge Penn or to the D.C. Court of Appeals.
. Nor do the well-reasoned opinions of the District of Columbia courts in C&P Telephone afford any basis for suspecting that those courts “inaccurately or unsympathetically comprehended” the arguments made by the United States. Cf. Restatement (Second) of Judgments § 134, comment b, at 73 (Tent. Draft No. 7, 1980). We find nothing in the District of Columbia courts’ adjudication that threatens the viability of DeGuyer v. Banning, 167 U.S. 723, 17 S.Ct. 937, 42 L.Ed. 340 (1897). Compare Brief for the United States at 24-30, with C&P Telephone, 418 A.2d at 121. And we regard as extravagant the suggestion made at oral argument that the resolution of this unique alley-closing controversy by the District of Columbia courts will encourage state courts hostile to federal interests to aid local citizens in maneuvers jeopardizing United States land holdings.
. The District Court appropriately characterized the title question as “incidental.” The court’s further statement, that “[t]he plaintiffs presently have title to the land,” Carr III, supra, slip op. at 9, reprinted in J.A. 52, was unnecessary to the decision.
. The District of Columbia did not appeal from the Superior Court judgment in the C&P Telephone case, see note 12 supra, nor has it appealed from the District Court’s final judgment in this action.
. Brief for the United States at 13-14.
. The United States does not now contend, and the Street Readjustment Act would not permit it to do so, that the District is required to impose a charge for closing an original alley. See note 9 and accompanying text supra. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
0
] | songer_direct1 |
Herbert ROOM, Plaintiff, Appellant, v. CARIBE HILTON HOTEL, Defendant, Appellee.
No. 80-1607.
United States Court of Appeals, First Circuit.
Argued June 1, 1981.
Decided Sept. 14, 1981.
Jose E. Fernandez Sein, Rio Piedras, P. R., with whom Harvey B. Nachman, Santucce, P. R., was on brief, for plaintiff, appellant.
Charles DeMier Leblanc, Hato Rey, P. R., with whom A. Miranda Cardenas, De Corral & Rodriguez, Old San Juan, P. R., was on brief, for defendant, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
Plaintiff Herbert Room commenced this diversity action to recover damages allegedly arising out of a heart attack he suffered on November 24, 1976, while a guest at defendant Caribe Hilton Hotel. At the close of plaintiff’s case-in-chief, the district court granted a directed verdict for defendant and plaintiff appeals. We affirm.
The facts as viewed in the light most favorable to plaintiff, see, e. g., Carlson v. American Safety Equipment Corp., 528 F.2d 384, 385 (1st Cir. 1976), are as follows. Herbert Room arrived in Puerto Rico on November 24, 1976 and registered as a guest at the Caribe Hilton Hotel in San Juan. That evening, Room gambled at the hotel casino. As he was leaving the casino, he began to feel weak and returned to his room. Upon arriving there, he felt nauseous, and therefore called the hotel operator, after reading the following section in the hotel service directory:
A registered nurse is on duty, and a qualified physician is available at all times. Call doctor’s office for appointment 8:30 A.M. to 5:00 P.M., Monday through Friday. After hours and Saturdays and Sundays, call: Telephone operator. Nurse will be glad to make dental appointments. Call: Ext. 1740.
This first call to the operator took place, according to Room, at 7:30 p. m. He requested a doctor, although he did not describe his symptoms, and testified that the operator told him she would get him one. At 11:30 p. m., he called the operator and again requested a doctor, again making no mention of his symptoms. The operator tried to call one of three doctors listed on a hotel roster as available to treat guests, but his line was busy. She then called Room, who told her to keep trying. Five or ten minutes later she tried again to call the doctor, but his line was still busy. She informed Room, who again asked her to keep trying. She tried to call the other doctors on the list, but was unable to make contact with any of them. Once again, she called Room, who again asked her to keep trying. At no time did she call the 24-hour emergency number of the San Jorge Hospital, although that number was also listed on her roster. Eventually, Room called some friends in Puerto Rico, who advised him to take a cab to the Presbyterian Hospital, which he did. They also called the hotel operator and informed her that she could stop trying to call the doctor.
Room arrived at the hospital at approximately 1:15 a. m. His condition was diagnosed as a myocardial infarction, or heart attack. He remained hospitalized for almost a month. In the course of that time, he suffered two more serious incidents involving his heart, acute cardiac failure on November 30, and paroxysmal tachycardia on December 8.
After being released from the hospital, Room returned to his home in New York and took a job as a converter in the textile industry. He quit approximately nine months later because he was unable to keep enough information in his head to do his job satisfactorily. He now suffers from a poor memory and head pains, complaints he never had before his heart attack.
Room sued the hotel, alleging that it had breached a duty under Puerto Rico law to provide him with adequate medical care by failing to put him in touch with a doctor from the time he first called the operator until he left for the hospital. Room alleged that this delay caused him permanent brain damage, and claimed $1 million in damages for hospital and medical expenses, loss of earnings, and pain and suffering. In directing a verdict for the defendant, the district court found, inter alia, that the delay in providing plaintiff with medical attention was not a proximate cause of his injuries.
Assuming arguendo that the defendant breached a duty to exercise reasonable care in providing medical care to its guests, the plaintiff must still establish a causal relation between the defendant’s negligence and the plaintiff’s injury. See, e. g., Portilla v. Carreras Schira, 95 P.R.R. 785, 793 (1968). In discussing this issue, it is necessary to distinguish the plaintiff’s permanent brain damage from any pain and mental anguish he may have suffered during the time when the defendant failed to provide him with a doctor. We shall address the permanent injuries first.
The plaintiff’s sole expert testimony concerning his medical condition was given by Dr. Jose Luis Freyre, a clinical neurologist. Dr. Freyre examined the plaintiff on November 1, 1978. He had no contact with plaintiff at any time prior to this; specifically, he did not treat plaintiff during his hospitalization in 1976.
Dr. Freyre testified as to plaintiff’s loss of some cerebral function, and testified further that the heart attack of November 24 could have caused this condition. On cross-examination, however, he admitted that the hospital’s records of plaintiff’s condition at the time of his admission were not complete enough to determine with any degree of certainty whether the November 24 attack did indeed cause any brain damage. In particular, the lack of any information as to plaintiff’s blood pressure at the time of admission made it impossible for Dr. Freyre to ascertain whether the attack had resulted in any significant decrease in blood flow to the brain.
Most significantly, Dr. Freyre was unable to determine which of the three heart-related incidents suffered by plaintiff caused the brain damage. The following colloquy took place between the court and Dr. Freyre:
THE COURT: [Cjould the second [heart failure] have been the cause of [plaintiff’s] condition?
THE WITNESS: It could have.
THE COURT: Is there any way of telling whether it was the second or the first?
THE WITNESS: No way of telling whether it was the first, second or third.
It is not disputed that the delay in rendering medical assistance on November 24 was not a cause of the two subsequent cardiac incidents. There was no evidence that the delay on November 24 was a more likely cause of plaintiff’s condition than were the other two incidents. In such a situation, any determination by the jury that the delay did cause the injury would be pure speculation and conjecture. Such speculation is not permitted. Widow of Delgado v. Boston Insurance Co., 99 P.R.R. 693, 702-04 (1971); W. Prosser, Handbook of the Law of Torts § 41, at 241 (4th ed. 1971). The directed verdict for defendant as to plaintiff’s permanent brain damage was therefore proper.
The evidence of any mental anguish that plaintiff may have suffered during the delay in obtaining medical treatment was also insufficient to overcome defendant’s motion for a directed verdict. Plaintiff’s sole evidence on this issue is as follows. He testified that during the time he was in the hotel room waiting for the operator to contact a doctor, he was weak and had few lucid moments. He said he had some pains in his back and arms, and that at one point they became very severe, at which time he felt that he was going to die.
There was, however, no evidence that the delay alone caused any pain or mental suffering. Defendant quite rightly points out that the heart attack itself — an event for which defendant was not responsible — would be accompanied by some pain, regardless of the speed with which help arrived. There was no attempt by plaintiff to show the extent to which prompt medical attention would have alleviated his pain, if at all. Given this failure even to attempt to apportion the damages between the delay and the heart attack, no reasonable jury could conclude that the delay alone caused any pain or mental suffering.
Similarly, the proof of mental anguish based on plaintiff’s fear that he was going to die was insufficient. Again, there is no evidence that he would not have feared for his life even after receiving medical attention. The fact that he suffered two more cardiac-related crises while in the hospital certainly suggests that he was not out of danger even after his hospitalization. Moreover, plaintiff did not describe how long he feared for his life or how great that fear was. Any attempt by the jury to assign a dollar value to this injury based on the testimony described above could only be the result of speculation and conjecture. While plaintiff’s testimony may amount to a scintilla of evidence that the delay caused him substantial mental anguish, that is not sufficient to overcome a motion for a directed verdict. See, e. g., Trinidad v. Pan American World Airways, Inc., 575 F.2d 983, 985 (1st Cir. 1978).
Affirmed.
. In light of our decision on this issue, it is not necessary to reach the other grounds on which the district court rested its decision.
. We do not decide whether such a duty actually existed or whether it was breached in this case.
. Under Puerto Rico law, a plaintiff may recover damages for mental suffering, even without any physical injury being alleged or proven. See Compagnia Nationale Air France v. Castano, 358 F.2d 203 (1st Cir. 1966); Muriel v. Suazo, 72 P.R.R. 348 (1951); Rivera v. Rossi, 64 P.R.R. 683 (1945).
. Defendant is not, of course, responsible for that portion of the injury resulting solely from the heart attack. See generally W. Prosser, Handbook of the Law of Torts § 52, at 317-20. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
1
] | songer_r_bus |
Carl Allen COLE, Appellant, UNITED STATES of America, Appellee.
No. 7096.
United States Court of Appeals Tenth Circuit.
Dec. 3, 1962.
Eugene J. Roberts, Denver, Colo., for appellant.
Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.
Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.
PER CURIAM.
This appeal was submitted to the Court after oral argument at the November term. Petitioner, then in the custody of the State of Kansas, sought relief by way of Writ of Error Coram Nobis from a judgment of conviction for a federal offense and the sentence imposed pursuant to such judgment upon claim that the federal sentence, although fully served, formed the basis for his retention by the State of Kansas. We are now informed that petitioner has since been released from state custody pursuant to a Writ of Habeas Corpus issued by the Kansas state court. The issues of this appeal are thus moot and the appeal is dismissed. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. | What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. | [] | [
0
] | songer_usc1 |
TELEDYNE INDUSTRIES, INC., doing business as Teledyne Still-Man, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Nos. 89-5809, 89-5885.
United States Court of Appeals, Sixth Circuit.
Argued April 30, 1990.
Decided Aug. 23, 1990.
William Alexander Blue, Jr., Larry W. Bridgesmith (argued), Constangy, Brooks & Smith, Nashville, Tenn., Alan L. Rolnick, Constangy, Brooks & Smith, Atlanta, Ga., for petitioner/cross-respondent.
Aileen A. Armstrong, Deputy Asso. Gen. Counsel, Howard E. Perlstein, Laurence S. Zakson (argued), N.L.R.B., Office of the General Counsel, Washington, D.C., Martin M. Arlook, Director, Victor McLemore, N.L.R.B., Atlanta, Ga., for respondent/cross-petitioner.
Before MARTIN and BOGGS, Circuit Judges, and JOINER, Senior District Judge.
The Honorable Charles W. Joiner, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.
BOYCE F. MARTIN, Jr., Circuit Judge.
This controversy stems from the discharge of two employees by Teledyne Industries following a strike at its plant in Cookeville, Tennessee, which manufactures heating elements. The two employees, Oma Stidham and Willie Wheeler, are members of the International Association of Machinists and Aerospace Workers, AFL-CIO, and its affiliated Local Lodge 2553. Stidham and Wheeler participated in the Union’s long and frequently hostile strike at the Cookeville plant during 1984 and 1985. After the strike was over, Teledyne discharged Stidham and Wheeler for misconduct during the strike. The National Labor Relations Board found that by discharging Stidham and Wheeler, Teledyne violated the National Labor Relations Act, 29 U.S.C. §§ 141 et seq. The Board ordered Teledyne to reinstate Stidham and Wheeler with backpay. Teledyne Industries now challenges the Board’s order, and the Board seeks enforcement. We enforce the Board’s order.
The strike began on February 1, 1984 when the Union’s membership rejected a new collective bargaining agreement with Teledyne. Teledyne began hiring permanent replacements for the strikers on February 27, 1984. Striking employees had been tensely anticipating this move by Tel-edyne, and they allegedly responded with a campaign of intimidation to prevent their replacements from coming to work. Striking workers allegedly blocked entrances and access routes to the plant, threw rocks at the vehicles of replacement workers entering the plant, and threatened replacement workers in their homes and in the community.
After an investigation of these incidents, the Regional Director of the Board issued a complaint on March 22, 1984, alleging many violations of the Act. One allegation was that Stidham, together with other employees, followed nonstriking employees to their homes and threatened them for not joining the strike, in violation of section 8(b)(1)(A) of the Act. 29 U.S.C. § 158(b)(1)(A) (prohibits labor organizations from coercing employees in the exercise of rights guaranteed by the Act). On March 28, 1984, the Regional Director filed a petition in the United States District Court for the Middle District of Tennessee for an injunction under section 10(j) of the Act against Stidham and others to prevent further unfair labor practices. Id. at § 160(j). Before any action was taken on the petition, the parties settled their grievances, and the district court entered an agreed order on April 4, 1984. The agreed order enjoined the Union and others from mass picketing, blocking access to the plant, and other strike misconduct. The district court did not hold a hearing, and the parties waived any findings of fact or conclusions of law.
On August 13, 1984, more controversy ensued when Teledyne began operating a second shift at the plant with more permanent replacements and nonstriking workers. Striking workers allegedly blocked access to the plant again, struck the cars of replacement workers with rocks and other objects, and threatened and assaulted nonstriking employees. In response to a charge filed by Teledyne, the Board filed a second petition with the district court on August 15, 1984, which was amended on August 24, 1984. The second petition sought further injunctive relief and a finding of civil and criminal contempt against various strikers, including Willie Wheeler, for violation of the agreed order entered on April 4, 1984. The second petition alleged that Wheeler had blocked entrances to the plant, hit cars belonging to nonstriking employees, and threatened nonstriking employees. However, the parties again negotiated a settlement. Instead of instituting contempt proceedings, the district court entered another agreed order on August 29, 1984. This order enjoined Wheeler, along with 36 others, from picketing and from coming within 500 feet of the plant. Once again, the district court did not hold a hearing, nor did it make any findings of fact or law regarding the Board’s allegations.
The strike wore on until the Teledyne employees voted to decertify the Union in April 1985. With the Union decertified, the strike ended on April 5, 1985. After the strike, Teledyne created a priority list for rehiring former striking employees. Wheeler, Stidham, and three other former striking employees were on the rehiring list, but before they could be rehired, Tele-dyne terminated them in early 1986 for misconduct during the strike.
The Regional Director of the Board issued a complaint charging Teledyne with committing an unfair labor practice by discharging Wheeler, Stidham, and the other three former employees. An employer commits an unfair labor practice if the employer refuses to reinstate or discharges an employee for exercising rights guaranteed by the National Labor Relations Act, 29 U.S.C. § 157, including participation in a lawful economic strike. 29 U.S.C. § 158(a)(1); NLRB v. Int’l Van Lines, 409 U.S. 48, 52, 93 S.Ct. 74, 77, 34 L.Ed.2d 201 (1972). However, employees may forfeit the Act’s protection from discharge through physical violence or other unlawful conduct, if the conduct is sufficiently egregious. Star Meat Co. v. NLRB, 640 F.2d 13, 14 (6th Cir.1980) (per curiam).
Before an administrative law judge could hold a hearing on the Board’s complaint, Teledyne filed a motion for partial summary judgment. Teledyne argued that the Board was estopped from alleging that Tel-edyne had committed an unfair labor practice in discharging Wheeler and Stidham. Teledyne contended that the Board had previously asserted the contrary position that Stidham and Wheeler had committed misconduct under the Act by seeking injunc-tive relief against Stidham and a finding of contempt against Wheeler. The administrative law judge denied Teledyne’s motion and set the case for a hearing.
After an eight-day hearing in the fall of 1986, the administrative law judge found that Teledyne had violated section 8(a)(1) by discharging Wheeler and Stidham, but that the discharges of the other three employees were warranted. The administrative law judge based its holding on its factual finding that neither Stidham nor Wheeler had engaged in serious strike misconduct. NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). The administrative law judge also found that Teledyne did not have a good faith belief that Wheeler had engaged in serious strike misconduct. This finding alone could support a holding that Teledyne had committed an unfair labor practice. Id. at 23, 85 S.Ct. at 172. In regard to Stidham, the administrative law judge found that Teledyne honestly believed, albeit mistakenly, that she had engaged in strike misconduct. The administrative law judge ordered Teledyne to reinstate Stidham and Wheeler with backpay.
A three-member panel of the Board affirmed the decision of the administrative law judge on June 15, 1989. The Board held that the discharge of Stidham and Wheeler for misconduct during the strike violated the Act because they were subsequently found not to have engaged in the misconduct. See NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). The Board also affirmed the award of backpay to Stidham and Wheeler, holding that an employer must pay back-pay for a discharge in violation of the Act, regardless of whether the employer had a good faith belief that the discharged individual had engaged in misconduct. Id. at 23-24, 85 S.Ct. at 172-73.
We now have three issues for review: the applicability of judicial estoppel, the appropriate award of backpay, if any, and the administrative law judge's decision on the merits.
Claim of Judicial Estoppel
Teledyne contends that the doctrine of judicial estoppel bars the Board from issuing a complaint against Teledyne for discharging Wheeler and Stidham. The doctrine of judicial estoppel forbids a party “from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.” Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469, 472-73 (6th Cir.1988) (citations omitted). Judicial es-toppel is an equitable doctrine that preserves the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment. See Scararo v. Central R.R., 203 F.2d 510, 513 (3d Cir.1953) (judicial estoppel precludes a party from “playing fast and loose with the courts”). In order to invoke judicial estoppel, a party must show that the opponent took a contrary position under oath in a prior proceeding and that the prior position was accepted by the court. Reynolds, 861 F.2d at 472-73. Teledyne contends (1) that the Board took a position in its petitions to the district court that Stidham and Wheeler engaged in serious misconduct under the Act justifying their dismissal, (2) that the agreed orders constituted judicial acceptance of that position, and (3) that the Board’s current order finding that the discharges were not justified under the Act contradicts the Board’s previous position in its petitions to the district court. The weakness in Teledyne’s contention is that the agreed orders do not constitute judicial acceptance of the Board’s prior position.
Judicial estoppel is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement. For example, before the doctrine of judicial estoppel may be invoked, the prior argument must have been accepted by the court. Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th Cir.1982); City of Kingsport v. Steel and Roof Structure, Inc., 500 F.2d 617 (6th Cir.1974). Although this limit allows parties to contradict themselves in court, it threatens only the integrity of the parties, not of the court. See, e.g., Fidelity & Deposit Co. v. Hudson United Bank, 653 F.2d 766, 778-79 (3d Cir.1981) (an answer to an interrogatory in a different suit did not estop the defendant from taking a different position, although the difference could be admitted in evidence at trial). But cf. Hamilton v. Zimmerman, 37 Tenn. (5 Sneed) 39, 48 (1857) (under Tennessee law, courts refuse to allow inconsistent testimony, regardless of judicial acceptance, in order to protect the “sanctity of the oath.”) In the federal courts, we rely on impeachment during, cross-examination to deter parties from contradicting their prior statements to the court. Fed.R.Evid. 801(d)(1)(A); see also Fed.R.Evid. 613 (even prior inconsistent statements that are not under oath may be used for impeachment). Requiring prior judicial acceptance protects the truth-seeking function of the court, while preserving the court’s integrity.
In this case, the Board cannot be judicially estopped unless the district court’s acceptance of the agreed orders enjoining Wheeler and Stidham constituted judicial acceptance of the Board’s prior allegations, even if the Board’s actions against Tele-dyne contradict its earlier petitions for an injunction to the district court. The district court's acceptance of the agreed orders was not judicial acceptance of the Board’s prior allegations against Stidham and Wheeler. We do not imply that judicial acceptance only occurs where a party ultimately prevails on the merits. “Rather, judicial acceptance means only that the first court has adopted the position urged by the party, either as a preliminary matter or as part of a final disposition.” Edwards, 690 F.2d at 599 n. 5. There was no judicial acceptance in the agreed orders of any allegations against Stidham and Wheeler for two reasons: because the agreed orders contained no findings against Stid-ham and Wheeler, and because the district court’s entry of the agreed orders did not constitute acceptance of them for purposes of judicial estoppel.
Teledyne relies on our decision in Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469 (6th Cir.1988), to assert judicial estoppel, but the differences between this case and Reynolds actually illustrate why judicial estoppel does not apply to the Board. Unlike Reynolds, the agreed orders in this case contain no admissions or findings of law or fact. In Reynolds, the issue was whether the petitioner or the petitioner’s former spouse was liable for the tax on a certain capital gain. Id. at 470. The Commissioner of Internal Revenue admitted in a bankruptcy court-approved stipulation in the first case against the wife, that the wife was liable for the tax, implicitly exonerating the husband. Id. at 471-72. In this case, the Board and the Union negotiated settlement stipulations in which Wheeler and Stidham did not admit that they had engaged in any misconduct under the Act. Judicial estoppel cannot apply without some decision or admission in the district court’s agreed orders as to whether Stidham and Wheeler actually engaged in the alleged misconduct. NLRB v. Markle Mfg. Co., 623 F.2d 1122, 1126-27 (5th Cir.1980).
In addition, the stipulation in Reynolds was approved by a bankruptcy court in a bankruptcy proceeding, where the court had a duty to ensure that the agreement was fair and equitable, unlike an ordinary civil case. Reynolds, 861 F.2d at 473; see also id. at 475 (Kennedy, J., dissenting) (arguing that even a settlement approved in bankruptcy court would not constitute judicial acceptance). Here, the district court had no similar duty in accepting a settlement in lieu of considering the Board’s original petitions under the Act. Settlements, even in the form of an agreed order, ordinarily do not constitute judicial acceptance of whatever terms they contain. In Reynolds, the court stated, “When an ordinary civil case is settled, there is no ‘judicial acceptance’ of anyone’s position and thus there can be no judicial estoppel in a later proceeding.” 861 F.2d at 473; see also Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C.Cir.1980) (“settlement neither requires nor implies any judicial endorsement of either parties[’] claims or theories, and thus, a settlement does not provide the prior success necessary for judicial estop-pel”). Teledyne offers no reason why we should make an exception here. These settlements did not constitute judicial acceptance of any factual allegations under the doctrine of judicial estoppel.
In regard to Stidham, even if the district court had granted the injunction, the injunction would not constitute a finding that the unfair labor practice actually occurred. The grant of the injunction under section 10(j) of the Act means merely that there is “reasonable cause” to believe that an unfair labor practice occurred. Gottfried v. Frankel, 818 F.2d 485, 493-94 (6th Cir.1987) (under section 10(j), a court also must determine that temporary injunc-tive relief is just and proper). “Reasonable cause” to believe a position is not judicial acceptance of that position.
The parties here confuse the difference between judicial and other forms of estoppel. Teledyne asserts only that the Board’s action challenging its discharge of Stidham and Wheeler is barred by judicial estoppel, but the Board construes Tele-dyne’s brief to assert both equitable and collateral estoppel as well. Although each of these doctrines deals with the preclusive effect of previous legal actions, the similarity ends there. See Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166-67 (4th Cir.1982) (“The circumstances under which judicial estoppel may appropriately be invoked are ... found where neither collateral estoppel nor equitable estoppel ... would apply.”).
The difference between judicial and equitable estoppel stems from their different purposes. Judicial estoppel exists to “protect the courts ‘from the perversion of judicial machinery’ ” through a party’s attempt to take advantage of both sides of a factual issue at different stages of the proceedings. Id. (quoting Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th Cir.1982)) (emphasis added). In contrast, equitable estoppel serves to protect litigants from unscrupulous opponents who induce a litigant’s reliance on a position, then reverse themselves to argue that they win under the opposite scenario. See Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951); Edwards, 690 F.2d at 598. A party may invoke equitable estoppel to prevent the opposing party from changing positions if (1) the party was an adverse party in the prior proceeding; (2) the party detrimentally relied on the opponent’s prior position; and (3) the party would now be prejudiced if the opponent changed positions. Edwards, 690 F.2d at 598; Konstantinidis v. Chen, 626 F.2d 933 (D.C.Cir.1980). Equitable estoppel may apply regardless of judicial acceptance of the party’s original position, because equitable estoppel protects litigants instead of the integrity of the courts. Judicial estoppel may apply regardless of detrimental reliance by the opposing party because it exists to protect the integrity of courts instead of the litigants.
Judicial estoppel also differs from the doctrine of collateral estoppel. Collateral estoppel conserves judicial resources by preventing a party from relitigating ultimate issues of fact that already have been resolved against that party. Edwards, 690 F.2d at 598-99. Collateral estoppel also preserves the integrity of the court because a court cannot make an inconsistent decision on a specific issue that it does not consider a second time. However, this protection of the court’s integrity is incidental because collateral estoppel protects the court only in cases where the party is taking the same position on the same issue. But see Bank of Heflin v. Landmark Inns of America, Inc., 604 F.2d 354 (5th Cir.1979) (applies collateral estoppel in this situation, although the cited authority concerns judicial estoppel). In nearly a mirror image to collateral estoppel, judicial estop-pel consistently protects the integrity of the court by estopping a party whenever it has previously persuaded a court to make a decision contrary to the party’s current position. Judicial estoppel is not bounded by the limits of mutuality and finality that protect the parties in collateral estoppel. See, e.g., Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469 (6th Cir.1988).
The agreed orders entered previously by the court could not justify imposition of collateral estoppel because they did not constitute fully litigated and finally decided decisions on the merits. Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979). Indeed, the agreed orders expressly avoided making any decision at all.
To support the imposition of equitable estoppel, Teledyne would have to show that the Board previously had taken an inconsistent position, on which Teledyne had relied to its detriment. The allegations in the Board’s petitions against Stidham and Wheeler were dropped pursuant to the agreed orders, which contained explicit nonadmission clauses. After the district court entered the agreed orders, Teledyne could not justifiably rely on allegations in the petitions that had preceded them.
The Award of Backpay
Teledyne does assert the doctrine of equitable estoppel to argue that Wheeler and Stidham should not be awarded back-pay after their reinstatement. The Board has recognized that an employer reasonably may rely on assertions of fact in a General Counsel complaint accusing individuals of unlawful conduct. Markle Mfg. Co., 239 N.L.R.B. 1142, 1151 (1979) enfd. as modified, 623 F.2d 1122 (5th Cir.1980). Teledyne contends that if we enforce the Board’s order reinstating Stidham and Wheeler, the award of backpay should be tolled until the judgment of the administrative law judge against Teledyne in this case. NLRB v. Markle Mfg. Co., 623 F.2d 1122, 1127 (5th Cir.1980).
In Markle, the Fifth Circuit tolled the award of backpay after the company was ordered to reinstate an employee, who had been discharged in violation of the Act. The Court held that where a previous consent order had been based on allegations of misconduct by the discharged employees, “the first order tolls any duty to reinstate and any concomitant liability for backpay until the second order is entered.” Id. The Court stated that once the Board alleges that an employee has committed a violent act, the employer may rely on those allegations to discharge the employee until the allegations are disproved. Id. at 1127-28.
Although we agree that an employer may rely on allegations by the Board in a complaint, we do not believe that an employer may continue to rely on these allegations, even after the Board has resolved them by settlement. In this case, the agreed orders, which supplanted the previous assertions by the Board in its petitions to the district court, explicitly waived any factual or legal findings. Although the agreed orders stemmed from allegations of violations, they did not endorse those allegations. Thus, we disagree with the Fifth Circuit’s characterization of such agreed orders as “based upon allegations of violence.” As stated above, the Board’s allegations in its petitions were subsumed in the later agreed orders, and Teledyne could not reasonably rely on them. The Board’s complaint, on which the petitions to the district court were based, was resolved in a stipulated settlement on August 20, 1985. The stipulated settlement also explicitly waived any finding of fact or law beyond those needed to establish the Board’s jurisdiction. In addition, it contained an explicit nonadmission clause by the Union.
Thus, by the time Teledyne discharged Stidham and Wheeler in early 1986, five months had elapsed since the Board’s allegations against them had been resolved, and Teledyne could no longer reasonably rely on those allegations. Otherwise, the effect of the waivers of any findings and of the nonadmission clauses would be diluted. The primary advantage to negotiated agreed orders in these cases is that they provide a quick resolution to an immediate problem during a strike, ending any alleged violence or intimidation. In addition, these agreed orders allow parties to avoid the expense and delay of a full adjudication and the risk of defeat. Unions and management will have greater difficulty reaching quick agreement in these pressured negotiations if the result.of those negotiations will necessarily affect the award of backpay in later litigation over potential discharges.
Also, tolling an award of backpay in this situation would conflict with the reasoning of the Supreme Court in NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). In Burnup & Sims, the Court held that employees were entitled to backpay if they were discharged in violation of the Act, regardless of any good faith belief of the employer that the discharges were warranted under the Act. The Court stated that the “controlling” factor in the analysis was not the employer’s state of mind, but the tendency of the employer’s conduct to weaken or destroy protected rights. Id. at 23-24, 85 S.Ct. at 172-73. If an employee’s backpay is limited upon reinstatement after an illegal discharge because of a position taken by the Board, then it is the employee who suffers for the mistakes of the Board. The result will discourage employees from exercising their rights under the Act. Although the employer may not be culpable where it relied on the Board’s earlier position in good faith in discharging an employee, the Court in Burnup & Sims rejected by a vote of eight to one Justice Harlan’s related approach to make the award of backpay dependent upon the reasonableness of the employer’s decision to discharge the employee. See id. at 24, 85 S.Ct. at 173 (Harlan, J., concurring in part and dissenting in part). Cf. NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969) (even if the amount of backpay award is increased by the Board’s failure to act promptly in violation of the Administrative Procedure Act, 5 U.S.C. § 1005(a), enforcement of the full backpay remedy is appropriate). To deny backpay to a reinstated employee in this case conflicts with the rule of Burnup & Sims that the culpability of the employer is not the relevant question. Thus, we decline to toll the award of backpay to Stidham and Wheeler.
The Merits of the Discharges
Aside from the arguments of estoppel, Teledyne argues that the administrative law judge erred in deciding that Teledyne committed an unfair labor practice by discharging Stidham and Wheeler. In NLRB v. Burnup & Sims, 379 U.S. 21, 23, 85 S.Ct. 171, 172, 13 L.Ed.2d 1 (1984), the Court outlined a three-step analysis for determining whether an employer committed an unfair labor practice by refusing to reinstate and by discharging an employee because of strike-related activity. Only the third step of the Burnup & Sims test is at issue here. For purposes of this appeal, the parties assume the first two steps: that Teledyne discharged Wheeler and Stidham for conduct that took place during a protected strike, and that Teledyne discharged its employees in the good faith belief that they had committed misconduct. See id. In the third step, the Board must show that the employees did not actually engage in the alleged misconduct. Id.; Schreiber Mfg. Co. v. NLRB, 725 F.2d 413, 415-16 (6th Cir.1984). Under Burnup & Sims, even if the employer honestly believes that the employee engaged in misconduct, the employer still violates the Act if the Board proves that the employees were innocent. “Otherwise, the protected activity would lose some of its immunity since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees.” Burnup & Sims, 379 U.S. at 23, 85 S.Ct. at 172-73.
The Board’s determination that Wheeler and Stidham did not commit the alleged misconduct is a factual finding and, as such, is conclusive if “substantial evidence on the record as a whole” supports it. 29 U.S.C. § 160(e). We hold that substantial evidence supports the Board’s finding that the alleged misconduct by Wheeler did not occur. Teledyne contends that Wheeler’s discharge was lawful because on July 13, 1984, Wheeler allegedly struck the car of employee Russell Swallow with his picket signs and blocked a tractor-trailer truck from entering Teledyne’s parking lot gate for a period of approximately one minute. If Wheeler struck a vehicle seeking to gain access to the employer’s facility, he could be discharged for strike misconduct. NLRB v. Hartmann Luggage Co., 453 F.2d 178 (6th Cir.1971); see Clear Pine Mouldings, Inc., 268 N.L.R.B. 1044, 1046 (1984) (The standard is whether their conduct “under the circumstances existing ... may reasonably tend to coerce or intimidate employees in the the exercise of rights protected under the Act.”). However, Teledyne introduced no evidence that Wheeler actually struck the car. Without any countervailing evidence, Wheeler’s denial under oath that he struck the car easily surpasses the substantial evidence standard.
Wheeler also denied that he blocked the tractor-trailer truck from entering Tele-dyne’s parking lot. The Teledyne Personnel Director, Cecil Cummings, testified that he saw Wheeler block the truck, and Tele-dyne introduced into evidence a videotape of the blocking of the truck, in which Cummings identified the driver of the car blocking the truck as Wheeler. The administrative law judge viewed the videotape and found that it was not possible to identify the driver as Wheeler. The administrative law judge also found Wheeler to be a more credible witness than Cummings. Our review of the credibility of witnesses also is “narrow.” Electrical Workers Local 948 v. NLRB, 697 F.2d 113, 117 (6th Cir.1982). In Electrical Workers, we stated, “The Board’s choice between conflicting testimony will not be set aside simply because this court ‘would justifiably have made a different choice had the matter before it been de novo.’ ” Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1950)). We affirm the credibility determination of the Board if “the Board’s conclusions are reasonable in light of the proven facts.” NLRB v. Com general Corp., 684 F.2d 367 (6th Cir.1982). The Board’s decision to credit the testimony of Wheeler over Cummings was not unreasonable.
We also affirm the Board’s finding that Stidham did not engage in strike misconduct. Teledyne contends that Stidham was discharged because she followed nonstrik-ers home from the plant and threatened them, and because she blocked the entrance to the Teledyne plant. Again, the alleged conduct, if proved, could be sufficiently grave to warrant removing the protection of the Act from Stidham. The Board has stated:
[T]he existence of a ‘strike’ in which some employees elect to voluntarily withhold their services does not in any way privilege those employees to engage in other than peaceful picketing and persuasion. They have no right, for example, to threaten those employees who, for whatever reason, have decided to work during the strike, to block access to the employer’s premises and certainly no right to carry or use weapons or other objects of intimidation.
Clear Pine Mouldings, Inc., 268 N.L.R.B. 1044, 1047 (1984). In this case, the Board found that the General Counsel had succeeded in proving that Stidham did not commit the acts which could have warranted discharge.
The Board’s decision regarding Stidham again came down to a credibility determination between opposing witnesses. “Deference to the Board’s factual findings is particularly appropriate where the ‘record is fraught with conflicting testimony and essential credibility determinations have been made.’ ” Tony Scott Trucking v. NLRB, 821 F.2d 312, 315 (6th Cir.1987) (quoting NLRB v. Nueva Engineering, 761 F.2d 961, 965 (4th Cir.1985)), cert. denied, 484 U.S. 896, 108 S.Ct. 230, 98 L.Ed.2d 188 (1987). Here, two carloads full of striking workers followed a group of nonstriking workers to the home of a nonstriking worker, Linda Golden, to engage in intimidation. However, Stidham was not in the two carloads. Stidham appeared in front of Golden’s home in a separate car while the intimidation was going on. There is conflicting testimony as to whether Stidham shouted a threat at Golden’s group or otherwise supported the other striking workers. This evidence does not condemn Stidham so strongly that the administrative law judge’s decision to exonerate her lacks substantial evidence to support it.
In regard to the Stidham’s second instance of alleged misconduct — blocking access to the plant — Teledyne based its case on the testimony of Cecil Cummings and a videotape. However, Cummings admitted that he could not identify Stidham in the videotape, and he contradicted himself as to whether he was present when the alleged blocking of access took place. Here too, the factual finding of the administrative law judge that Stidham did not commit strike misconduct is supported by substantial evidence.
Thus, we decline to apply estoppel, to toll the award of backpay, or to overturn the factual findings of the administrative law judge. The order of the Board is enforced.
. The administrative law judge also held that Teledyne violated section 8(a)(3) of the Act, which prohibits an employer from discriminating in the hire or tenure of an employee to discourage or encourage membership in any labor organization. 29 U.S.C. § 158(a)(3). This holding does not concern us because the Board did not reach this issue in its review of the administrative law judge's decision.
. The Board's decision does not reflect whether Teledyne appealed to the Board its contention that judicial estoppel barred the Board from its action in this case. Because the Board does not assert in its arguments before us that Teledyne failed to do so, we will not consider whether Teledyne's estoppel arguments are waived.
. The doctrine of judicial estoppel does not clash with the right to plead inconsistent claims under Fed.R.Civ.P. 8(e)(2). Rule 8(e)(2) concerns the ability to plead alternative legal arguments, even if they are inconsistent or based on inconsistent facts. In contrast, judicial estoppel does not bar a party from contradicting itself, but from contradicting a court’s determination that was based on that party’s position.
. Some courts have held that a party may avoid application of judicial estoppel if the prior position was the result of a mistake, inadvertence, or fraud. See Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C.Cir.1980); Johnson Serv. Co. v. TransAmerica Ins. Co., 485 F.2d 164, 175 (5th Cir.1973). The reasoning is that if the prior position was false, the danger to the integrity of the courts is reversed, because a strict rule would force the court to continue to adopt a false position. The danger of creating these exceptions to the applicability of judicial estop-pel is that they threaten to collapse the entire doctrine; a party inherently argues that a prior position was false if the new position contradicts it. However, we need not reach this question today.
. Of course, if the district court had made a finding of contempt against Wheeler, such a finding would constitute judicial acceptance of the Board’s argument in the petition that Wheeler had violated the previous agreed order.
. Teledyne appears to have abandoned on appeal its argument before the Board and the administrative law judge that Stidham engaged in misconduct by shouting threats at nonstriking employee Bobby Kirby. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. | What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. | [] | [
29
] | songer_usc1 |
UNITED STATES of America, Appellee, v. Jeris E. BRAGAN, Appellant.
No. 73-2066.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 6, 1974.
Decided July 16,1974.
Philip J. Hirschkop, Alexandria, Ya. [court-appointed counsel], for appellant.
Justin W. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., for the E. D. Va., on brief), for appellee.
Before WINTER, BUTZNER and WIDENER, Circuit Judges.
BUTZNER, Circuit Judge:
Jeris E. Bragan, a private detective, appeals from his conviction of violating provisions of the Omnibus Crime Control Act pertaining to wiretapping and wiretap devices, 18 U.S.C. §§ 2511 and 2512. His principal assignment of error deals with the district court’s denial of a continuance which he sought for the purpose of substituting counsel. The court’s ruling, he asserts, deprived him of his right to obtain counsel of his choice. Finding neither abuse of the trial court’s discretion nor infringement of the sixth amendment, we affirm.
Bragan was arrested on February 15, 1973, and his preliminary hearing was conducted on March 7. He was indicted on March 14 for intercepting and disclosing, and trying to intercept, telephone conversations of persons he was investigating, and for manufacturing, possessing, and transporting wiretap devices. At his arraignment on March 19, the court designated April 7 as the cutoff date for pretrial motions and scheduled a hearing on the motions for April 20. Trial by jury was scheduled for May 14. Throughout all of the preliminary proceedings and at the trial, Bragan was represented by able, experienced counsel whom he had retained shortly after his arrest.
On April 13, Bragan’s counsel moved for a continuance so that new counsel could be substituted for the defense. Four days later, the prospective counsel renewed the motion, explaining that Bragan wished to employ him because of his experience in the law pertaining to wiretapping, but that he could not participate in a trial on May 14 due to a previous commitment for a hearing in another court on the same day.
The district judge declined to continue the trial. However, he expressed the belief that the principal legal issues involving the wiretapping charges could be considered at the hearing on pretrial motions. Accordingly, he reopened the cutoff date for filing the motions and continued the pretrial hearing from April 20 to May 4. This permitted Bragan’s new counsel to file a number of motions and participate as co-counsel in the proceedings on May 4. The principal legal issues pertaining to co-counsel’s field of expertise were argued by the co-counsel at the rescheduled pretrial hearing and they now provide the basis for most of Bragan’s assignments of error. At the trial, conducted as scheduled on May 14, Bragan was represented only by his originally retained attorney. However, the government used no evidence of wiretaps or other electronic devices that had not been the subject of the previous pretrial hearing.
The recent emphasis on quickening the pace of criminal proceedings, exemplified by Rule 50(b) of the Federal Rules of Criminal Procedure, has created tension between the rule’s policy of eliminating undue delay and the occasional attempts of both prosecutors and defendants to seek additional time between arraignment and trial. Although the rulé does not freely countenance pleas for delay, it permits the trial judge to retain sufficient flexibility over his docket to assure proper disposition of justifiable motions for continuance. Consequently, the rule does not deprive the judge of the discretion that he has traditionally exercised in considering a request for a continuance. Review of his ruling, therefore, must take into consideration all of the circumstances, particularly those which were presented when the motion was argued. When these circumstances raise an issue about the defendant's right to counsel, the trial court must exercise its discretion, and the reviewing court must test its ruling, by the precepts of the sixth amendment. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); Franken v. United States, 248 F.2d 789 (4th Cir. 1957) (by implication).
United States v. Inman, 483 F.2d 738 (4th Cir. 1973), contains our most recent review of the principles governing continuances to enable a defendant to obtain representation by counsel of his choice. We found in that case no abuse of discretion in the court’s denial of a continuance because the motion was made without mitigating explanation for its delay on the morning of trial, although the trial date had been set approximately two months earlier. Furthermore, the record disclosed that the defendant had received competent representation from his appointed counsel. But even so, we cautioned that the case presented an instance when “the outermost reach of discretion was exercised.” 483 F.2d at 740. Almost concurrently, we found error in the refusal of a continuance and the consequent denial of the right to counsel in United States v. Fisher, 477 F.2d 300 (4th Cir. 1973). There, because of confusion that arose through no fault of the defendant, his lawyers were unprepared. Despite knowledge of this fact, the court denied a motion for a continuance on the morning of trial. We reversed Fisher because the circumstances and the record of the trial established that the court’s insistence on proceeding with the scheduled trial had deprived the defendant of effective representation.
Inman and Fisher, read together, underscore the care with which a trial court must exercise its discretion when it rules on a continuance that will affect the representation that a defendant receives. They teach that the sixth amendment’s provision for the right to counsel embraces the right to an attorney of the defendant’s choice and a reasonable opportunity to obtain this representation. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Implicit, also, is the right to effective representation. Stokes v. Peyton, 437 F.2d 131, 136 (4th Cir. 1970). Inman cautions and Fisher illustrates that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” But the Constitution does not afford an accused, who has ample time to obtain counsel, the “unbridled’right” to insist that his trial be held in abeyance while he replaces one competent attorney with another. United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968).
Applying these principles, we conclude that the trial judge’s discretion was tempered by proper consideration of Bragan’s sixth amendment rights. Dates for the filing and hearing of motions and for trial were selected to provide for the orderly progress of the case, and the nearly 60 days that intervened between arraignment and trial allowed ample time for thorough preparation. The court’s rearrangement of the pretrial schedule and its continuance of the hearing on the pretrial motions afforded Bragan’s new co-counsel an adequate opportunity to raise defenses peculiar to his field of expertise.
The: trial lawyer who represented Bragan throughout the case is recognized as an experienced, able practitioner of criminal law. Promptly after he was retained, and even before the grand jury returned the indictment, he conferred extensively with the United States Attorney’s assistants for the purpose of informal discovery. He heard tapes implieating Bragan which the government had obtained through the cooperation of Bragan’s erstwhile accomplices, and he obtained an outline of the government’s theory of the prosecution. He participated in the pretrial hearing in which Bragan’s co-counsel also appeared. There is no indication that he was ignorant of the facts or the law, and his conduct of the trial cannot be faulted. It is apparent that Bragan was effectively represented by competent counsel throughout the proceedings.
Bragan’s motion for a continuance was made a month before the date scheduled for trial. His request was grounded on reasons which dispelled any inference that he sought an unjustifiable delay. Therefore, it merited the careful consideration of the district court. Had the court denied the motion out of hand, it is unlikely that Bragan would have had an opportunity to present his complex defenses properly. This, of course, would have raised a serious question about the propriety of the court’s ruling. However, by reopening the cutoff date for motions and continuing the pretrial hearing for an appropriate interval, the court afforded Bragan the right to be represented at a critical time by a co-counsel whose expertise he valued. On the other hand, since Bragan had able, experienced trial counsel, the presence of his co-counsel at the trial was not indispensable. We find, therefore, no error in the court’s denial of Bragan’s motion to continue the trial.
Bragan’s other assignments of error require only brief comment. The district court did not err in denying his motion for separate trials for each of two wiretaps. Bragan can show no prejudice in the joinder of these offenses because all the evidence admissible in the joint trial would have been admissible in separate trials had the court severed the offenses. Federal Rules of Criminal Procedure 8(a) and 14; United States v. Simon, 453 F.2d 111, 113 (8th Cir. 1971); ABA Standards Relating to Joinder and Severance §§ 1.1, 2.2 (App. Draft 1968).
The government relied in part on transcripts and tapes of Bragan’s conversations with his former accomplices. This evidence was admissible because it was obtained with the consent of a participant. 18 U.S.C. § 2511 (2) (c). United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); ABA Standards Relating to Electronic Surveillance § 4.1 (App. Draft 1971). The record discloses that the government neither obtained nor used evidence, or the fruits of evidence, in violation of Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Consequently, the type of hearing required in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), was unnecessary. Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); United States v. Hauff, 473 F.2d 1350, 1355 (7th Cir.), cert. denied, 412 U.S. 907, 93 S.Ct. 2299, 36 L.Ed.2d 972 (1973).
Because Bragan’s victims consented to the introduction into evidence of their wiretapped conversation, the exclusionary rule of 18 U.S.C. § 2515 did not render inadmissible the wiretaps Bragan made in violation of 18 U.S.C. § 2511. It is the victims’ consent that distinguishes this case from the ruling of the court of appeals reversing United States v. Liddy, 354 F.Supp. 217 (D.D.C.), rev’d, 155 U.S.App.D.C. 382, 478 F.2d 586 (1973). In any event, Bragan lacks standing to suppress the contents of his illegal wiretaps because he is not an aggrieved person within the meaning of 18 U.S.C. §§ 2510(11) and 2518(10) (a).
The judgment is affirmed.
. Title 18 U.S.C. §§ 2511 and 2512 prohibit the interception and disclosure of wire or oral communications and the manufacture and possession of intercepting devices.
. FedJt.Crim.P. 50(b) provides in part:
“To minimize undue delay and to further the prompt disposition of criminal cases, each district court . . . shall prepare a plan . . . which shall include rules relating to the time limits within which procedures prior to trial, the trial itself, and sentencing must take place . . . . ”
The plan for the Eastern District of Virginia prescribes a limit of 120 days from arraignment to trial, which, however, is subject to extension for good cause. Plan Oases, 111(b) and IV (E.D.Va.1973). for Processing and Disposing of Criminal
. The sixth amendment provides in part:
“In all criminal prosecutions, 'the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.”
. The quotation is from Mr. Justice White’s opinion for the Court in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).
. Title 18 U.S.O. § 2515 excludes from evidence the contents of an illegal wiretap and its fruits.
. Title 18 U.S.O. § 2510(11) defines an aggrieved person as “a party to any intercepted wire or oral communication or a person against whom the interception was directed.”
Title 18 U.S.O. § 2518(10) (a) empowers an aggrieved person to move for the suppression of the contents of an illegal wiretap. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_trialpro |
FT. DEARBORN COAL CO. v. BORDERLAND COAL SALES CO.
Circuit Court of Appeals, Sixth Circuit.
July 3, 1925.
No. 4313.
1. Frauds, statute of <s=>84 — Contract for sale of coal held void as within the statute.
A written order for certain cars of coal, sent by defendant to plaintiff, was rejected as not in accordance with the previous oral agreement, and was sent back for correction, but was not returned. Plaintiff, however, shipped some of the cars to a customer of defendant, as contemplated by the contract, but they were rejected. Held, that such shipment must be regarded as having been made under the oral contract which, the shipment not having been accepted, was void under Gen. Code Ohio, § 8384(1).
2. Frauds, statute of <S=»89(3) — Direction by broker of shipment of coal direct to customer held not an acceptance of delivery which took the contract out of the statute of frauds.
Where defendant, which was a coal broker, and known to be such by plaintiff, in making an oral contract for coal directed its shipment direct to a customer, such direction was not an acceptance of delivery or the exercise of any act. of ownership, which took tlie contract out of the statute of frauds; the shipment having been rejected by the customer.
In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.
At Law. Action by the Ft. Dearborn Coal Company against the Borderland Coal Sale's Company. Judgment for defendant, and plaintiff brings error.
Affirmed.
The Ft. Dearborn Coal Company brought action to recover damages for breach of a contract for the sale of 37 cars of Imperial New River mine run coal, which it claimed it sold to the defendant, and upon its order delivered 32 cars to the Chicago By-Products Coke Corporation, Hawthorne, Ill., which corporation refused to unload the same, and defendant refused to make disposition thereof, to the damage of tlie plaintiff in the snm of $2,486.03, and that, in addition thereto, it was compelled to pay the sum of $3,621.44 for additional freight, ear service charges, demurrage charges, and switching eharg-es. The defendant answered denying that it made any contract whatever with the plaintiff to purchase 37 cars of coal to be consigned to the Chicago By-Products Coke Corporation, and denies that plaintiff delivered 32 c-ars of coal to the defendant or to the Chicago By-Products Coke Corporation on defendant’s order, and further answering says that, if a contract was entered into between plaintiff and defendant that the contract was an oral contract for the sale of goods of the value of more than $2,500, and void under section 8384 (1) of the General Code of Ohio.
The plaintiff for reply denies the allegation in the answer that no note or memorandum in writing of said contract was signed by the parties to he charged, and further avers that the buyer did accept and actually receive part of the goods covered by the contract. At the close of the evidence offered on behalf of the plaintiff, the court on motion directed the jury to return a verdict for the defendant, to which the plaintiff excepted.
It appears from the record: That C. L. Pierce, district manager of the Ft. Dear-born Coal Company, located in Cincinnati, Ohio, had some oral negotiations with H. L. Bonnell, representing the Borderland Company of Cincinnati, for the purchase of this coal. That Bonnell told Pierce he had taken orders for coal “around 20 per cent, volatile,” and that in his (Bonnell’s) estimation “that can mean anything between 15 and 25 per cent.” That Pierce told Bonnell he liad been instructed not to guarantee tlie volatile in this coal, and therefore would not make a sale to him on guaranty of 20 per cent, volatile. That Bonnell then said, “If we can get together on the price I can handle your coal.” Thereupon Pierce made a sales memorandum order signed by himself, upon which appeared the following: “Volatile not guaranteed.” This was shown to Bonnell, but no copy of it was given to him. Following these verbal negotiations, and on the same day, the Bonnell Coal Company sent to the Dearborn Company its written order covering these 37 cars of New River coal, a part of which is as follows: “Guaranteed to run under 1 per cent, sulphur, 8 per cent, ash, and around 20 per cent, volatile matter. To be applied against their 150-ca.r order.” This reached the Dear-born Company the following morning, and as soon as it was received Mr. Pierce called Mr. Bonnell over the telephone at the Borderland office and told him that he was in receipt of the Borderland’s order containing tlie guaranty “around 20 per cent, volatile,” and that “wo did not want it to appear on anything in our office that we had guaranteed the volatile around 20 per cent.” That Bonnell said to him, “Well, I talked to yoit about that when I was in your office, and I understand what the coal is, and you understand what I mean by around 20 per cent.,” to which Pierce replied, “I might understand what you mean by around 20 per cent., but I told you we would not guarantee the volatile, and I am sending this order back to you, this acknowledgment back to you for correction.” Pierce further testified that he then put this written memorandum or order in an envelope, addressed it to the Borderland Coal Sales Company, and put it in the mail chute. This written order in reference to this contract, which was rejected by the Dear-born Company and returned to the Borderland Company was not corrected and returned, nor was any other written order or memorandum in writing, signed by the Borderland Company, executed or delivered to the Dearborn Company. On the next day Pierce and Bonnell had some further talk over the telephone, in which Pierce stated to Bonnell that 32 ears of coal were then in transit to the Chicago By-Products Coke Corporation for the Borderland account, and that Bonnell said “he would handle it,” and that Mr. Pierce then said he would withhold further shipments for later instruction.
Walter K Sibbald, of Cincinnati, Ohio, for plaintiff in error.
Charles J. Hunt, of Cincinnati, Ohio (Hunt, Bennett & Utter, of Cincinnati, Ohio, on the brief), for defendant in error.
Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.
DONAHUE, Circuit Judge
(after stating the facts as above). It is clear, from this evideneé introduced by the plaintiff, that there was no written contract and no written memorandum of any claimed verbal contract signed by the Borderland Company. So far as appears from this record, the Borderland Company would have been justified in the belief that the rejection and return of this written order ended the transaction. It necessarily follows that whatever shipments were made, were made in pursuance of this verbal contract after the written memorandum or order had been rejected. It is also clear that the coal was not accepted by the Borderland Company or the Chicago ByProducts Corporation, the consignee, but on the contrary was rejected by the consignee because of excess volatile matter as, under the written memorandum rejected by the Dearborn Company, the defendant and the By-Products Company had a right to do.
It is claimed, however, that the Borderland Company exercised acts of ownership over this coal by reselling it at a profit. This contention is not sustained by the evidence. The Borderland Company is a coal broker, and was known to be such by the plaintiff. The order to ship to the By-Products Company was a part of the original oral negotiations, and contemplated no delivery whatever to the Borderland Company, but on the contrary delivery by the Dear-born Company as consignor direct to the consumer, the By-Products Corporation, as consignee. It was all part and parcel of the same transaction. 'In this respect it differs materially from the cases' cited in the brief of counsel for plaintiff in error.
It is further claimed that, after 32 ears of this coal had been shipped upon this verbal contract, the Borderland Company, through Bonnell, assented to become the owner of these specific goods. This claim is based on the testimony of Pierce that the next day after he had rejected and returned the written memorandum of contract he told Bonnell over the telephone that 32 earloads of this coal were then in transit, and that Bonnell said “that he would handle it.” In view of the facts known to the plaintiff at the time, that the Borderland Company was not buying this coal for its own use, but was buying it as a means of filling its existing coal broker’s contract with the By-Products Company, that the final delivery and the first opportunity for'inspection would be on the tracks of the By-Products Company, and that the coal would continue in the possession of the carrier until final delivery, the statement by Bonnell that he would “handle it” cannot be construed as an assent by the Borderland Company, before delivery, to become the owner of the coal shipped under the verbal contract, even if the rejection and return of the written order and Jailure of defendant to modify and return the same would not have the effect of canceling the verbal order and ending the transaction. However, whether or not this promise to “handle it” amounts to an acceptance under section 8384 (3), there was not, under the recited circumstances, the “actual receipt” which section 8384 (1) requires in addition to acceptance.
Judgment affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent. | What is the nature of the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer_genresp1 |
AMERICAN POTATO DRYERS, Inc., et al. v. PETERS.
No. 6051.
United States Court of Appeals Fourth Circuit.
Argued June 13, 1950.
Decided Sept. 13, 1950.
Gordon W. Daisley, Washington, D. C., and Oscar Leach, Raleigh, N. C. (Smith, Leach & Anderson, Raleigh, N. C., on the brief), for appellants and cross-appellees.
Charles F. Meroni, ’Chicago, 111. (Hill, Sherman, Meroni, Gross & Simpson, Chicago, 111., Clem B. Holding and Bailey & Holding, all of Raleigh, N. C. on the brief), ’for appellee and cross-appellant.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
These are cross appeals in a patent case. The plaintiff in the court below was Frederick C. Peters, holder of Arthur patents Nos. 2,228,192 and 2,326,115, relating respectively to a process for drying potatoes for shipment and a machine for carrying out the process. Plaintiff asked damages for infringement of the patents and for breach of confidence and breach of contract by defendants with respect to the subject matter which they embrace. Defendants are Broadus Wilson and American Potato Dryers, Inc., a corporation which he controls. In addition to denying liability to plaintiff, defendants alleged that plaintiff had been guilty of violating the anti-trust acts in connection with his ownership of the patents and asked damages on that account. The judge below made extensive findings of fact in which he held that the patent® sued on were invalid, that, even if valid, they had not been infringed, that defendants were not estopped to deny their validity, and that there was no basis for recovery ’by plaintiff on account of breach of confidence or breach of contract or by defendants on account of the alleged violations of the anti-trust acts. From judgment entered on these findings both sides have appealed; but plaintiff raises no question as to the correctness of the holding as to the invalidity of the machine patent.
While many matters have been discussed in the briefs and arguments of counsel, the case before us, when properly analyzed, is narrowed to three questions: (1) whether, the process patent sued on is valid; (2) whether because of dealings had between the parties, defendants are estopped to question the validity of the patent or plaintiff is entitled, irrespective of its validity, to recover damages of defendants because of breach of confidence or breach of contract; and (3) whether defendants are entitled to recover damages of plaintiff on account of violations of the anti-trust laws. We think that all of these questions should be answered in the negative.
1. The Validity of the Patent.
The patent in suit, No. 2,228,192, issued to A. F. Arthur and assigned to plaintiff, was applied 'for March 29, 1940, and granted January 7, 1941. It relates to the washing of dirt 'from potatoes and drying them by the use of a current of hot air. To wash potatoes before they are shipped to market adds to their value, but the moisture which clings to them after they are washed is conducive to soft rot or decay. It is important, therefore, that, if the potatoes are washed, they be dried afterward®; and the process of the patent is to dry them by passing them through a tunnel in which they come in contact with hot air flowing in the opposite direction. It is contended that this process results not only in drying the potatoes but also in producing a 'biological change which further protects them from decay. ’Claims one and five, which may, be taken as typical, are as follows :
“1. The process of treating potatoes for shipment and to aid in preventing soft rot during shipment which comprises moistening whole potatoes so that the skin of each potato is coveted with a 'film of moisture adapted to serve, during subsequent steps of the process ás a heat insulator to- prevent co.olcing of the body of the, potato, then, conveying the moistened potatoes through a confined area, subjecting the potatoes, as they travel, through said area to a heated blast of air for a period of time approximating four minutes and of a temperature of substantially 100 to 145 degrees F. and of a velocity of substantially 1200 feet per minute to evaporate the moisture from the skins of the potatoes by skin drying the potatoes and whereby substantially one-half pound of moisture is removed 'from each bushel of potatoes, and utilizing the evaporation of said moisture to preclude the heating and cooking of the body of the potato.”
"5. In a process of treating raw potatoes to aid, in preventing deterioration while-preserving-the natural appearance of the potatoes, the steps of disposing, the po-tatoes in a-predefined area and subjecting each potato uniformly over its entire surface to a large volume of heated relatively high velocity air of a temperature approximately 100 degrees F. for a short' period of time sufficient-to remove rapidly moisture from the outer and periderm layers of cells of the potato, and just prior to discharge of the potato,from said area causing the dried outer cells of the potato to be subject- . ed to a higher temperature short of that which would cook the starchy body of the potato but which will cause a biological change in the formation of the outer, and periderm layers of; cells of the potato to render the same resistant to the ingress of deteriorating bacteria.”
The patent is correctly analyzed in the findings of- the learned judge below as follows: "The only acts- or physical opera- . tions actually performed on, the potatoes in carrying out the process disclosed in patent No. 192 are as follows: (1) moistening or washing whole potatoes so, that, the skin of each potato is covered with a film of moisture, (2) conveying the moistened potatoes through an enclosed drying chamber, (3) subjecting the potatoes as they travel through the chamber to a blast of heated air moving in the opposite direction to that of the potatoes, the air having (a) a temperature of approximately 145 degrees F. upon entry into the chamber and an exit temperature of about 100 degrees F., and (b) a linear,velocity of approximately 1200 feet per minute, and (4) keeping the potatoes in the chamber •for a period of approximately -four minutes. The specification of patent No. 192 also describes, and the claims include, certain other alleged features of the process, such as: (A) evaporating the moisture from the skins of the potatoes by skin-drying the potatoes and thereby removing substantially one-half pound of moisture from each bushel of potatoes, (B) utilizing the evaporation of said moisture to preclude the heating and cooking of the starchy body of the potatoes, arid (C) causing the heat of the heated air to act on the outer layers of cells of the potatoes as they are drying to cause a ’biological change or a change of cell construction or -formation therein such as to render the potatoes resistant to the ingress of soft rot bacteria. The weight of the evidence is contrary to the teaching of patent No. 192 that the drying procedure specifically described therein is effective to cause such a biological or other change in the outer layers of cells of the potatoes as they are dried.”
We would not be justified, on the evidence before us, in reversing the finding of the lower court with respect to the biological change produced in the potatoes by the process of the patent; but we re-gard this as immaterial, in any event,since the -biological change produced in the potatoes, if any there be, is the result of the process, and not a part thereof and is therefore not patentable. Le Roy v. Tatham, 14 How. 156, 174-175, 14 L.Ed. 367. The process of the patent, then, is nothing more than using hot air to dry potatoes being carried on a conveyor in a, tunnel, and we agree with the court below that no patentable novelty was involved in such a process. The evidence shows beyond question the use of heated air -for drying potatoes, which had been washed in preparation for marketing, as early as 1930 by the Idaho Packing Co. at Pocatello, Idaho. While the specific details of the process at Pocatello are not shown in evidence, the evidence does show that a process which is substantially the process O'f the patent was in use by John F. Stambaugh at McGuffey, Ohio, in 1934 and by the Gould’s Growers, Inc. of Goulds, Florida, in 1937. Goulds, Florida, is the town in which it is claimed that the process of the patent was developed; and the evidence shows that more than a year before the patentee claims to have reduced his ideas to practice, the process for which his patent was issued was being publicly used in the town in which he was operating. With respect to the Stambaugh and Goulds uses of the process, the trial court found the facts as follows:
“11. The testimony and exhibits concerning the Stambaugh dryer establish that at least as early as 1936 Stambaugh publicly practiced a process of treating potatoes, for shipment which included the steps (1) washing the potatoes, (2) conveying them through an enclosed tunnel for a distance of 110 feet, (3) blowing air of relatively high temperature through the tunnel countercurrent to the movement of the potatoes by means of a fan having an output velocity of 1800 feet per minute, and (4) subjecting the potatoes to the heated air for a period of approximately 4^2 minutes, and that, under normal weather conditions, the potatoes thus treated were satisfactorily dried, had no visible moisture on them, and were well enough dried to enable their packing in paper bags. In view of the non-critical character of the specific values of air temperature and velocity and time of treatment of the potatoes set forth in the claims of patent No. 192, and since the alleged production of a 'biological or other change in the outer layers of cells of the potatoes, if it occurs under the conditions specified in the claims, would inherently occur in any equivalent procedure, the method of operation of the Stambaugh dryer embodied every material procedural step of the process claimed in patent No. 192.
"12. Early in 1937 Goulds Growers, Inc., of Goulds, Florida, ‘began to publicly use in their commercial packing operations two potato processing production lines each of which included a washing mechanism and a heated air dryer, the method of operation of which was the same in all material respects as the process defined by the claims of patent No. 192. The Goulds Growers packing-house was located only one-quarter of a mile away from plaintiff’s packing-house where Arthur was employed, and Arthur was admittedly very familiar with the construction and method of operation of the Goulds Growers installation from the time when it was being built. * *
“IS. The Goulds Growers Potato washing and drying machines as they were publicly used during the potato packing seasons of 1937 and 1938 performed the following operations in preparing potatoes for shipment: (1) washed the potatoes, (2) conveyed them through enclosed tunnels for a distance of approximately 100 feet, and for double that distance during time of unfavorable weather conditions, (3) produced a high velocity, turbulent flow of heated air through the tunnels countercurrent to the movement of the potatoes there through, the air having an inlet temperature of from 120 to ISO degrees F. and being blown through the tunnels by fans having an output velocity of approximately 880 feet per minute, and (4) subjected the potatoes to the heated air for a period of time ranging from 3yz to 5% minutes, or double that period when both machines were connected in series. The potatoes discharged from the Goulds Growers dryers were dried sufficiently to practically eliminate losses from bacterial soft rot, which is the avowed purpose of the process of patent No. 192.”
In the light of these findings, which are amply supported by the testimony, the process patent is clearly invalid. As we have seen, the pointing out in the patent that the process of drying by hot air resulted in a biological change in the potatoes did not constitute patentable invention. And it is equally clear that it was not invention to point out the range of temperature and the velocity of the air current at which the best results were to be obtained. There was nothing critical in any particular temperatur.e or velocity; and the determination of which had best be used involved nothing that the skill of the engineer could not easily supply. The fact that Arthur may have made improvements in a process already being used.'successfully did, not entitle him to a patent where there was nothing in the improvements involving real invention as distinguished, from the skill of the calling. See Atlantic Works v. Brady, 107 U.S. 192, 200, 2 S. Ct. 225, 27 L.Ed. 438; Thompson v. American Tobacco Co., 4 Cir., 174 F.2d 773, 777; Wine Ry. Appliance Co. v. B. & O. R. Co., 4 Cir., 78 F.2d 312, 319, and cases there -cited.
It is difficult to see, at this time in the history of the'-arts and sciences, how it could possibly- be thought' that there was patentability in the use of hot air in drying vegetables; and-the process of -blowing the air through a tunnel in a direction opposite to that in which the -vegetables are being carried -would seem to- be a process which would readily suggest itself -to anyone faced with the problem. That machines employing such a process had long been known, is shown by numerous patents referred to iby the lower court in holding the machine patent invalid. 'See findings 34, 35 and 36. A -patent may not, of -course,- be granted for a process when the process has been disclosed by prior patents -covering machines to practice the process. MacDougald Const. Co. v. Finley, 5 Cir., 38 F.2d 809, certiorari denied 282 U.S. 862, 51 S.Ct. 36, 75 L.Ed 763; Girdler Corp. v. Abbotts Dairies, D. C., 24 F.Supp. 551, affirmed 3 Cir., 106 F. 2d 998.
Since the patent is manifestly1 void on account of the prior -uses-established by the evidence, it is not necessary that we consider the Wayland patent also .relied upon by the lower -court, -nor is it necessary that we pass upon the questions of infringement which have been- strenuously argued. ..
2. The Dealings' Between the Parties.
Plaintiff contends that, even though the patent sued on be invalid, defendants are estopped to assert its, invalidity -because of dealings had between the. parties.. They contend also that these dealings establish a confidential relationship which defendants have abused, entitling plaintiff to recover damages on that account, and that plaintiff is entitled to recover damages also because defendants have breached the provisions of a contract entered into between the parties at the conclusion of their dealings. The fa-cts established with respect to these matters are as follows:
Plaintiff, a grower an-d shipper of potatoes, employed Arthur, the grantee of the patents in suit; as a packing house foreman and assigned him the duty of working out some satisfactory process of cleaning potatoes for shipment. Arthur, after experimenting with a -cooling or refrigerating process for -handling the washed potatoes, decided that a more satisfactory process would be to dry them by the use of hot air and proceeded to have a -machine built for that purpose. A part of the equipment for this machine was furnished by one of defendant Wilson’s corporations; and one Hincz, representing the corporation, -helped to install it and became thoroughly familiar with the machine and its operation. He told defendant Wilson about the machine and brought him to plaintiff’s packing house where Wilson saw it in operation and discussed with -plaintiff the possibility of obtaining a patent on it. This was early in the year 1939. Defendant made no effort then to -obtain a patent either for himself or for plaintiff but began planning to manufacture potato drying machines which would use the hot air process. In early 1940 plaintiff and defendant entered into three contracts the salient provisions of which were that a corporation should be organized, owned in equal parts by plaintiff and defendant, -to manufacture and lease potato drying machines; that one of defendant’s corporations should be given the exclusive contract of manufacturing the machines; and that the patents which were to be applied for should be the property of a corporation owned by plaintiff but that the corporation to be formed should be granted a license to use them for a nominal consideration. Arthur had already made application for the -patent in suit, and the corporation provided for in the contracts was duly organized and commenced business. A controversy arose within a few months, however, and defendant sold out to plaintiff his interest in the corporation. The three prior contracts were then cancelled and a new contract was thereafter made, dated August 31, 1940, settling all matters in difference between the parties. That contract contained, among others, the following provisions:
“4. That for and in consideration of payments made in the past to said parties of the first part (Wilson and one of his corporations) said parties of the first part, together and separately, agree not to utilize or to take advantage in any way of disclosures to them by the said parties of the second and third parts of the latter’s processes and apparatuses for processing agricultural products, which is the basis of a patent application now pending in the Patent Office and owned by said parties of the second part.
“5. That the parties of the first part, except as provided for in the present agreement, hereby agree not to use any of the confidential disclosures to them regarding said process of treating agricultural products by said parties of the second part, and not to manufacture, sell, or lease any equipment for processing agricultural products in accordance with the process disclosed to them in confidence by said parties of the second and third parts.”
Following the execution of this contract, defendant began making and leasing potato drying machines which plaintiff contends practice the process of the Arthur Patent but which defendants contend operate upon entirely different principles.
We see no ground upon which the defendants can .be held to be estopped to assert the invalidity of the patent. They were never licensees under it; they neither bought nor sold any interest in it; and they entered into no contract recognizing its validity in any way. Not even the corporation formed by plaintiff and defendant to manufacture and lease potato drying machines held any license under the patent 'but had at the most a mere executory contract that it should have a license under any patent that might be obtained, and the final contract between the parties put an end even to this. Under such circumstances, it is perfectly clear that defendants are not estopped to dispute the validity of the patent by reason of having sold out to plaintiff their interest in the corporation which was to have potato drying machines manufactured and lease them.
And we think it equally clear that no factual basis has been established for recovering damages on account of breach of confidence under the principles laid down in Hoeltke v. C. M. Kemp Mfg. Co., 4 Cir., 80 F.2d 912 or Saco-Lowell Shops v. Reynolds, 4 Cir., 141 F.2d 587. We agree with the following finding of the court below with respect to this matter: “49. None of the information which the defendant Wilson obtained concerning the things upon which plaintiff relies as secrets was given to Wilson in confidence by either the plaintiff or Arthur. The defendant Wilson had been fully informed by Hincz concerning the construction and operating procedure of the plaintiff’s installation before Wilson ever visited plaintiff’s packinghouse. The information which Hincz thus conveyed to Wilson was obtained by Hincz by fair means, in the ordinary and open course of business, and without any injunction of secrecy; he had free access to the plaintiff’s dryers at all times and rightfully considered that all of the information connected therewith, particularly the technical data which he himself worked out in designing the air conditioning equipment, could 'be freely given iby him to Wilson or anyone else. The weight of the evidence does not support plaintiff’s contention that 'his brief conversation with the defendant Wilson on the subject of patents during Wilson’s first visit to plaintiff’s packinghouse in February 1939 gave rise to a confidential relationship between the two men,, nor does it establish that Wilson obtained on that visit any information with respect to the installation in the packinghouse which he did not already have. The evidence likewise fails to establish plaintiff’s contention that the defendant Wilson received secret or confidential information from Arthur with respect to the potato' processing installations made by General Produce Dryers, Inc., using the dryers which had been designed ánd built under Wilson’s supervision at the General Air Conditioning Company plant at Raleigh.”
For the same reason, no, basis is established for recovery on the theory that the above quitted provisions of the final contract betwderi the parties have been breached. While plaintiff complains that defendants’ machines embody his process, he does not specifically point out the disclosures or processes .which he contends that defendants have appropriated. As we have seen, the process and machine of plaintiff embodied processes and devices which were oíd,and well known in the art and which had been' employed in practically the same way by Goulds only a few hundred yards from plaintiff’s installation. The' provisions of the contract which we have quoted cannot reasonably be interpreted as an agreement by defendants Mot to use machines or processes in use by persons other than plaintiff; for it would be absurd to designate .as a confidential disclosure that which is publicly known. It is not sufficient, .therefore, 'for plaintiff to introduce general testimony to the, effect that Arthur had the idea of drying potatoes ;by the use of hot air and that defendants were given the benefit of his ideas while helping to build his machine. Plaintiff must show that he disclosed .to defendants matters which were peculiar to the process and machine which he was developing, and not common property, and that defendants used these in' building their machine, and .not merely devices and processes which were open to the public. This' 'he has not done. As was well said in the findings of the could below:’ “62. Paragraph 5 of the August 31, 1940 agreement is specifically limited by its terms to the use of ‘confidential’ disclosures. Although paragraph 4 does not include the word ‘confidential’ as a modifier of ‘disclosures’, the word ‘disclosures’ itself implies that the things referred to. were secret, concealed or unknown prior to the time of their revelation. The evidence does not establish that any confidential disclosure's' were made to the defendant Wilson by plaintiff or on his behalf.”
The evidence, in fact, negatives the making o,f any confidential disclosures. The deposition of the witness Arthur relating to the matter tells of the visit of Wilson to plaintiff’s packing plant and -his meeting with Peters, and proceeds as follows: “They talked a little bit there, and Mr. Wilson seemed especially pleased'with the installation; in fact, I would almost describe his expression as beaming. He said, ‘Mr. Peters, you really have got a wonderful thing here, and I believe.it can be patented.’ They talked a few minutes, longer, and Mr. Peters was pleased with that statement, and informed Mr, Wilson that he was extremely busy selling potatoes,'and that he would like to have me show him -further details of the machine. I talked with Mr. Wilson and Mr. Hincz, explaining the operations, but Mr. Wilson was' pretty well acquainted with them. He seemed to know all about the entire installation. We did not spend a great déal of time there, since he -seemed to know, without my explaining it, how it-operated and particularly how the drying operation was handled. I brought him in here to Mr. Peters’ office then, and left them with Mr. Peters. I didn’t see them when they left, because I had to go back into the packinghouse and continue operations.
“Q. 293. How did you happen to explain the operations to Mr. Wilson, and Mr. Hin-cz? A. Because Mr. Wilson told Mr. Peters he could get him a patent, or thought he could get him a patent, and Mr. Peters asked me to show him everything about it, to give him access to it and give him the information.
“Q. 294. Did you do that? A. I gave him what I could in the time we had, but he seemed to know as much about it as I did. I didn’t think it was necessary to give him any great deal of information.”
This testimony clearly indicates that no confidential disclosures had been made prior to that timé and that none was made then because, in the language of Arthur, Wilson “seemed to know all about the entire installation”.
It is strenuously argued that confidential disclosures to defendants are conclusively established by the 'fact that the above quoted provisions were inserted in the contract. Wilson contends, however, that Peters, who had the contract prepared, had these provisions incorporated without prior agreement; that there were in fact no 'Confidential disclosures to which they could have had reference; and that he signed the contract without insisting upon their deletion because Peters was away on a cruise and could not be reached and only by executing the contract could he get money which Peters owed him and which he needed. Be that as it may, it is clear that the provisions of the contract do not of themselves make out a case for damages for breach of contract. It is necessary that plaintiff supplement them by specific proof of what confidential disclosures he made to defendants and what damage he has sustained by reason of defendants’ use thereof. No such damage from breach of the contract has been established.
3. Violation of Anti-Trust Law.
Defendants’ counterclaim for damages under the anti-trust acts is based (1) on contracts between plaintiff and the Food Machinery Corporation to the effect that that company, which was contracting to manufacture machines for plaintiff under his patent, would not manufacture, lease or sell any potato-drying machinery competitive with that of the patent, and (2) on threats by plaintiff to bring infringement suits against the licensees of defendants’ machines. No extended discussion of these matters is necessary. Defendants have shown no damage resulting to them from the contracts between plaintiff and the Food Machinery Corporation; and for this reason, even if the contracts were violative •of the anti-trust acts, which we do not decide, see United States v. Bausch & Lomb Optical Co., D.C., 45 F.Supp. 387, 399; Id., 321 U.S. 707, 719, 64 S.Ct. 805, 88 L.Ed. 1024, they would furnish defendants no basis for recovery. So far as the threats of suit for patent infringement are concerned, the evidence supports the finding of the lower court that these were made in good faith in protection of what plaintiff thought were rights secured by the patent and not pursuant to an unlawful attempt to extend the monopoly thereby granted. See U. S. G & P. E. Corp. v. Hanson-Van Winkle, etc., Co., 4 Cir., 104 F.2d 856, 862.
For the reasons stated, the judgment appealed from w'ill be affirmed.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
8
] | songer_genresp2 |
Jaynell BEGLEY, Ruth Ellis, Evelyn Gibson, Daisy Laymance, Eva Nuchols, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. SECRETARY of HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 91-5361.
United States Court of Appeals, Sixth Circuit.
Argued March 17, 1992.
Decided June 10, 1992.
Robert R. Campbell, Hodges,. Doughty & Carson, Knoxville, Tenn., Lenny L. Croce (argued & briefed), Donna M. Lefebvre, Rural Legal Services of Tennessee, Oak Ridge, Tenn., and Kenneth Miller, Miller & Prewitt, Knoxville, Tenn., for plaintiffs-appellants. ■
Lowell V. Sturgill, Jr., Matthew M. Col-lette, Marc Richman (argued and briefed), William Kanter, Dept, of Justice, Appellate Staff, Civ. Div.; James S. Portnoy, U.S. Dept, of Justice, Civ. Div., Washington, D.C.; and Paige Auer Winck, Asst. U.S. Atty., Office of the U.S. Atty., Knoxville, Tenn., for defendant-appellee.
Before GUY and RYAN, Circuit Judges; and JOINER, Senior District Judge.
The Honorable Charles W. Joiner, United States District Court for the Eastern District of Michigan, sitting by designation.
RYAN, Circuit Judge.
This is a class action challenging certain policies and practices employed by the Secretary of Health and Human Services to evaluate the disability benefits eligibility of certain “surviving spouse” claimants under the Social- Security Act. Plaintiffs were granted summary judgment and now seek review of the district court’s award of attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. We vacate the order awarding attorneys’ fees and remand the case for further proceedings.
I.
Plaintiff widows were denied disability benefits when the Secretary determined that their impairments did not meet or equal the listed medical criteria considered by the Secretary so severe as to preclude any gainful activity. They brought this claim alleging that the Secretary had denied them and others widows similarly situated individual assessments of their ability to engage in gainful activity. The district court determined that the Secretary’s policies and practices were arbitrary and capricious and contrary to the mandate of the Social Security Act and granted plaintiffs’ motion for summary judgment.
Plaintiffs, as a “prevailing party” in a civil action brought against the federal government, petitioned for an award of attorneys’ fees and expenses. 28 U.S.C. § 2412(d)(1)(A). The Equal Access to Justice Act provides that the amount of fees awarded shall be based on
prevailing market rates for the kind and quality of the services furnished, except that ... attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A). In support of their petition for attorneys’ fees, counsel for the class submitted declarations explaining their requested rates, hours, and total fees. Plaintiffs’ attorneys, Lenny L. Croce' and Donna M. Lefebvre, are employed by Rural Legal Services of Tennessee, Inc., a private, nonprofit legal aid corporation, and made their fee requests on behalf of the corporation. Croce and Le-febvre based their requests on hourly rates awarded to them in prior Social Security cases. Croce stated that he had been awarded a $125 hourly fee for a Social Security class representation in 1988. Based on this figure, Croce sought $135 per hour for his services in this case, consisting of a $125 hourly rate, plus cost of living adjustments from 1988. Lefebvre stated that she had been awarded a $75 hourly fee in representing an individual Social Security claimant in 1988. She sought an award of $82 per hour for her services based on the earlier fee award and cost of living adjustments from 1988. Kenneth Miller, a private attorney who represented an individual claimant in this case, stated that he specialized in Social Security disability cases and generally charged $125 per hour in noncontingent Social Security cases. Miller sought $103.35 per hour, based on the $75 statutory maximum fee plus cost of living adjustments dating to 1981.
The Secretary did not contest the claims concerning the amount of time the lawyers devoted to the case, or present any evidence of the prevailing market rate for the kind and quality of legal services rendered to plaintiffs. Instead, the Secretary challenged the fee requests only to the extent that they exceeded the EAJA’s “cap” of $75 per hour.
The district court denied the requests for awards of $82 to $135 per hour and awarded attorneys’ fees based on hourly rates ranging from $50 for Lefebvre’s services to $65 for those of Croce and Miller. The district court stated:
The Court does not find that in the market in this locality an hourly rate of $75.00 is reasonable. In view of the extensive amount of Social Security litigation that passes through this Court, no shortage of attorneys exists for the representation of claimants in this area.
The district court also held that under “the terms of the statute and the controlling precedent” it was required to reject the requests for adjusted rates above $75 per hour.
Plaintiffs moved for reconsideration. In support of the motion, plaintiffs attached additional declarations by Croce and Le-febvre, citing the difficulties faced by indigent plaintiffs in rural Eastern Tennessee in obtaining adequate representation. Also included was the declaration of attorney Dale Buchanan, who attested to the scarcity of attorneys in Tennessee with the willingness and expertise to handle Social Security class actions. Buchanan also opined that the fees requested by Croce and Le-febvre were “eminently reasonable.”
The district court found “no reason to revise its findings as to the amount of fees appropriate in this case,” however, and denied plaintiffs’ motion for reconsideration.
II.
We review the district court’s award of attorneys’ fees under the Equal Access to Justice Act for abuse of discretion. Perket v. Secretary of Health & Human Servs., 905 F.2d 129, 132 (6th Cir.1990). The district court’s factual findings are reviewed for clear error, and its legal conclusions de novo. Id.
III.
Plaintiffs challenge the district court’s order awarding attorneys’ fees on three grounds: 1) that the court clearly erred in establishing an hourly rate of $50 to $65; 2) that the court abused its discretion in failing to adjust the fees awarded for increases in the cost of living; and 3) that the court abused its discretion in failing to order enhancements to attorney Lenny Croce’s fee award to take account of “special factors,” such as the lack of other attorneys willing to take on Social Security class-action cases and Croce’s special knowledge and expertise in Social Security law and class actions.
A.
We address the issue of hourly rates first. Plaintiffs argue that the district court abused its discretion in ignoring the uncontradicted evidence in the record that the prevailing market rate in the community for legal services of the kind and quality rendered in this case exceeded $75 per hour and awarding fees below the EAJA’s $75 per hour “cap” on attorneys’ fees. The Secretary responds that plaintiffs simply failed to meet their burden of proving that the market value of the legal services provided in this case exceeds $75 per hour and that the district court’s factual finding that the prevailing market rate in these types of cases ranged from $50 to $65 per hour in rural eastern Tennessee was not clearly erroneous.
The hourly fee determination in this case was apparently based solely on the district court’s observation that “[i]n view of the extensive amount of Social Security litigation that passes through this Court, no shortage of attorneys exists for the representation of claimants in this area.” Contrary to the Secretary’s characterization, we do not find this statement the equivalent of a factual finding concerning the prevailing market rate for legal services in rural Tennessee. It is simply a statement of personal belief. The district court’s assertion lacks foundation in the record and ignores the only evidence presented on attorneys’ fees in the relevant market. The court’s conclusion was not an exercise of discretion, grounded in the evidence, but an abuse of it., We must, therefore, vacate the fee determination and remand for a redetermination.
B.
The second issue presented concerns the claim for cost of living adjustments. • The EAJA permits awards in excess of $75 per hour where “the court determines that an increase in the cost of living ... justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A).
Plaintiffs assert that, given the undisputed evidence in the record that the prevailing market rates exceed $75 per hour, they were entitled to cost of living adjustments to the maximum hourly fee. The Secretary argues that the cost of living requests were properly denied and ignored as irrelevant, given the district court’s finding that the prevailing market rate for attorneys’ services was below $75 per hour.
This court has stressed that “we think it important that the $75 statutory rate is a ceiling and not a floor” and held that a district court did not abuse its discretion “in determining that the fees awarded should not exceed $75 per hour even though the cost of living may have indeed risen since the enactment of the EAJA.” Chipman v. Secretary of Health & Human Servs., 781 F.2d 545, 547 (1986). While adjustments for increases in the Consumer Price Index are sometimes seen as essentially perfunctory or even mandatory, see, e.g., Coup v. Heckler, 834 F.2d 313, 320 (3d Cir.1987); Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir.1988), this court leaves the matter to the sound discretion of the district court. Chipman, 781 F.2d at 546-47. Accord Headlee v. Bowen, 869 F.2d 548, 551 (10th Cir.), cert. denied, 493 U.S. 979, 110 S.Ct. 507, 107 L.Ed.2d 509 (1989).
The refusal of a district court to award cost of living adjustments will not normally amount to an abuse of discretion, even though the cost of living has risen since the enactment of the EAJA. Chipman, 781 F.2d at 547. The .issue is, and must remain, whether these increases in the cost of living “justif[y] a higher fee.” Our review of the record suggests that the district court may have read our decision in Chipman to foreclose any upward adjustments from the statutory ceiling. This is not correct. We interpret Chipman as a specific instruction not to use $75 as a minimum hourly fee and a more general command to district courts to carefully consider, rather than rubber stamp, requests for adjusted fee awards based on inflation. We have neither precluded cost of living adjustments in appropriate cases, nor interfered with the authority of the district courts to decide such matters within their discretion.
In this case, we find no evidence that the district court properly considered the request for cost of living adjustments once attorneys’ fees were arbitrarily set below the statutory ceiling of $75 per hour. The district court applied incorrect legal standards and failed to exercise its discretion by determining whether cost of living adjustments were justified in this case. On remand, after the district court determines, based on the evidence in the record, the prevailing market rate for attorneys’ services of the kind and quality rendered in this case, it should next consider and determine, as an exercise of its discretion, whether increases in the cost of living justify an award in excess of $75 per hour. The determination should be made on the record and on the basis of specific factual findings and conclusions of law.
In their briefs, the parties addressed the question whether cost of living increases, if awarded, should be measured from the original enactment of the Equal Access to Justice Act, on an experimental basis, in 1981 or from its 1985 reenactment. This issue is not necessary to our determination of this appeal and we decline to address it at this time.
C.
The third and final issue for our review is whether the district court abused its discretion in denying plaintiffs’ request for “special factors” enhancement to the hourly rates awarded for the services of attorney Croce. Adjustments above $75 per hour for attorneys’ services may be awarded if “the court determines that ... a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A).
Plaintiffs contend that no attorneys in the locality, other than Croce and Lefebvre, were willing or able to take a Social Security class representation case “for the statutory fee rate, or any rate.” They also argue that Social Security class actions, as opposed to individual representations, require a specialized knowledge and expertise. See Pirus v. Bowen, 869 F.2d 536, 540-42 (9th Cir.1989). The Secretary contends that the “special factors” possibly justifying enhancement of attorneys’ fees do not include the type of “general lawyerly skills” professed to have been necessary to successfully prosecute plaintiffs’ class action suit. See Pierce v. Underwood, 487 U.S. 552, 571-74, 108 S.Ct. 2541, 2553-2555, 101 L.Ed.2d 490 (1988).
The district court failed to exercise its discretion to decide these issues, and, as a result, we once again lack an adequate record for proper review. The special factors raised by plaintiffs in support of enhanced hourly fees should be considered by the district court. We therefore remand the case to the district court for specific factual findings and conclusions of law on this issue.
IV.
The order awarding attorneys’ fees is VACATED and this case REMANDED for factual findings and conclusions of law on plaintiffs’ requests for awards in excess of $75 per hour. On remand, the district court should specifically determine the prevailing market rate for legal services of the kind and quality rendered in this case and whether increases in the cost of living or special factors involved in this representation justify rates in excess of $75 per hour under the Equal Access to Justice Act. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). | This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? | [
"not ascertained",
"poor + wards of state",
"presumed poor",
"presumed wealthy",
"clear indication of wealth in opinion",
"other - above poverty line but not clearly wealthy"
] | [
1
] | songer_appel1_7_5 |
Robert I. GREENBERG; Rose Greenberg; Maynard Greenberg, as Co-Trustees of the Mal Greenberg Testamentary Trust, Plaintiffs-Appellees, v. SERVICE BUSINESS FORMS INDUSTRIES, INC.; Service Computer Forms Industries, Inc., Defendants-Appellants.
No. 88-1636.
United States Court of Appeals, Tenth Circuit.
Aug. 17, 1989.
John T. Edwards (Sarah H. Stuhr with him, on the brief) of Monnet, Hayes, Bullís, Thompson & Edwards, Oklahoma City, Okl., for plaintiffs-appellees.
Richard C. Ford (J. Clay Christensen with him, on the brief) of Crowe & Dun-levy, Oklahoma City, Okl., for defendants-appellants.
Before LOGAN, BRORBY, and EBEL, Circuit Judges.
PER CURIAM.
Service Business Forms Industries, Inc. (Service Business) and Service Computer Forms Industries, Inc. (Service Computer), defendants, appeal the district court’s order granting plaintiffs partial summary judgment on their claim for recovery of an accelerated debt allegedly due under Service Business’ promissory note. The district court determined that there were no material issues of fact as to Service Business’ default under the terms of the promissory note and that plaintiffs properly exercised their right to accelerate the unpaid principal balance and accrued interest. On appeal, defendants contend there are genuine issues of fact regarding each of its defenses.
Plaintiffs are co-trustees of the Mai Greenberg Testamentary Trust (the Trust). On October 29, 1982, plaintiffs entered into a stock redemption agreement with Service Computer, a Nevada corporation presently owned and operated by Carolyn and Lau-rance Wolfberg. The Wolfbergs are the sister and brother-in-law of Robert Green-berg (Greenberg), a plaintiff and a trustee of the Trust. Under the stock redemption agreement, the Trust transferred all the shares it owned in Service Computer back to the company in exchange for $102,000. Of this amount, $2,000 was to be paid at closing and $100,000 was to be paid pursuant to the promissory note at issue here.
Pursuant to the stock redemption agreement, Service Business, an affiliate of Service Computer which is also operated by the Wolfbergs, executed a $100,000 promissory note on October 29, 1982, the closing date of the stock redemption agreement. The note provided for annual payments to be calculated on a twenty-year amortization schedule with full payment to be made on the tenth anniversary of the note’s execution. The note further stated that the Trust had the option to accelerate the debt and demand full payment if Service Business defaulted on any of its obligations under the note. The note did not specify a specific due date for the annual payments. In addition to this written agreement, Service Business alleged that Greenberg promised to execute a disclaimer of any interest he had as a beneficiary under the Trust. Greenberg denied that he ever made such an agreement.
By April, 1986, Service Business had made only one payment on the note, in the amount of $5,000. As a result of further negotiation between the parties, Greenberg executed a written disclaimer in favor of Service Computer under which Greenberg disclaimed any interest he might have through inheritance in the family jewelry. The disclaimer was conditioned on Service Business’ payment of all past due amounts owing under the promissory note and upon its “timely payment” of all future installments. The disclaimer also failed to designate a specific date for the future annual payments. Thereafter, Service Business paid $43,231.86 on June 26, 1986, which included partial payment of the 1986 installment. On November 6, 1986, not having received the payment from Service Business which they considered due on October 29, 1986, plaintiffs sent Service Business a notice of their intention to accelerate payment of the note. On November 14, 1986, and again on October 29, 1987, Service Business tendered payment of the installment amount owing, calculated as of the anniversary date of the note. On both occasions, plaintiffs refused to accept the payments.
Plaintiffs brought this action to recover the accelerated amount of the principal and accrued interest under the note. In its answer, defendants raised several defenses, including waiver, estoppel, and lack of default under the terms of the note. Defendants also filed a counterclaim, alleging failure of consideration by virtue of Green-berg’s refusal to execute a disclaimer of any interest in the Trust funds. Plaintiffs moved for summary judgment and, after a hearing, the district court granted partial summary judgment in their favor. The court found that the terms of the contract clearly designated the payments to be due on October 29th of each year, by virtue of the date of the note's execution and the fact that annual payments were calculated on the basis of a twenty-year amortization. The court further held that there were no material issues of fact as to waiver, estop-pel, or default and found that Business Service had defaulted on its payment obligations, that the Trust had the right to accelerate the balance owing upon default, and that the Trust properly exercised its right to accelerate. The court ruled, however, that there were material issues of fact regarding the issue of whether Service Business received full consideration for the stock redemption agreement with the Trust because Greenberg allegedly failed to issue a disclaimer of any interest as beneficiary under the Trust. This last issue was presented to the jury, which returned a verdict in favor of Greenberg and the Trust.
On appeal, Service Business contends that there are several genuine issues of fact which precluded the granting of partial summary judgment. First, Service Business contends that it did not default on its obligations under the note because the document did not specify a date on which payment was due, and argues under Oklahoma law that payment was thereby due within a reasonable time. We disagree. Oklahoma statute dictates that contracts are to be interpreted according to the intent of the parties at the time the instrument was executed. Okla.Stat. tit. 15, §§ 152, 153 (1981). Intent must be determined by construing the contract as a whole, and the court must construe the contract so as to give effect to each provision. Amoco Prod. Co. v. Lindley, 609 P.2d 733, 741 (Okla.1980). The language of the note setting the date of final payment as October 29, 1992, and the method for calculating the amount of annual payments clearly indicate that the parties intended that payments were to have been made on the anniversary date of the note.
Second, Service Business asserts that plaintiffs did not accelerate the note in good faith. Service Business claims the duty of good faith arises both under the Uniform Commercial Code (UCC), Okla. Stat. tit. 12A, § 1-208 (1981), and under the common law doctrine of good faith in the performance of a contract. Section 1-208 provides:
A term providing that one party ... may accelerate payment or performance or require collateral or additional collateral “at will” or “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.
Id.; see also Mitchell v. Ford Motor Credit Co., 688 P.2d 42, 44-45 (Okla.1984) (acceleration by a secured party). In finding that plaintiffs properly exercised their power of acceleration, the district court implicitly found that the good faith requirement set forth in § 1-208 does not apply to notes that permit acceleration at the option of the holder upon default by the debtor. We agree.
The only Oklahoma case we have located which addresses the question of whether the good faith requirement under the UCC applies to acceleration on default clauses is Knittel v. Security State Bank, Mooreland, Okla., 593 P.2d 92 (Okla.1979). The case did not directly address the issue; however, it upheld a challenged jury instruction which stated that the good faith requirement under § 1-208 did not apply to an acceleration on default clause. Id. at 97. Because a court must determine whether a challenged jury instruction properly states the applicable law, see Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988), it logically follows that Knittel supports the position that the UCC good faith requirement does not apply to acceleration on default clauses.
Several states have similarly held that the UCC good faith requirement is not applicable when the acceleration clause is based on an event in the debtor’s complete control. E.g. Brummund v. First Nat’l Bank, 99 N.M. 221, 656 P.2d 884, 887 (1983) (relying on North Carolina law); Bowen v. Danna, 276 Ark. 528, 637 S.W.2d 560, 564 (1982); In re Sutton Invs., Inc., 46 N.C.App. 654, 266 S.E.2d 686, 690 (1980); Crockett v. First Fed. Sav. & Loan Ass’n, 289 N.C. 620, 224 S.E.2d 580, 588 (1976). But see Brown v. AVEMCO Inv. Corp., 603 F.2d 1367, 1375-80 (9th Cir.1979) (comparing the applicability of UCC § 1-208 on “default” acceleration clauses as opposed to “insecurity” acceleration clauses under Texas law). Because of the ruling in Knit-tel and the general consensus in other jurisdictions, we conclude that Oklahoma would not apply the good faith requirement in § 1-208 to the acceleration on default clause at issue in this case.
Service Business also claims that plaintiffs failed to perform their contract in good faith under common law equitable principles. Service Business relies on Brown v. AVEMCO Inv. Corp., in which the Ninth Circuit applied the common law doctrine of good faith to a due-on-lease clause contained in a security agreement executed in conjunction with a promissory note. 603 F.2d at 1375-79. In reversing a jury verdict in favor of the creditor, the court noted that, under Texas law, acceleration clauses are designed to protect a creditor from conduct or events that jeopardize or impair the creditor’s security. Id. at 1376. The court held that the jury should have been instructed on the issue of the creditor’s good faith in exercising the due-on-lease clause when evidence existed that it inequitably desired to take advantage of a technical default, not because it in good faith feared its security was impaired. Id. at 1379. This decision was based on Texas case law which clearly mandated that equitable considerations should be applied when a creditor exercises an optional right to accelerate for the sole purpose of receiving the entire payment rather than for the purpose of protecting its debt. Id. We must determine whether Oklahoma would likewise impose an equitable duty on a creditor to not use the power of acceleration when its security is not impaired.
The Oklahoma Supreme Court has ruled on two occasions that an acceleration clause contained in a mortgage will not be enforced where the conduct of the mortgagee has been unconscionable or inequitable. Continental Fed. Sav. & Loan Ass’n v. Fetter, 564 P.2d 1013, 1019 (Okla.1977); Murphy v. Fox, 278 P.2d 820, 826 (Okla.1955). In Continental, the court denied a bank’s request to accelerate and foreclose on a mortgage based on a due-on-transfer clause when the bank refused to consent to a transfer solely because the mortgagor would not pay a substantial transfer fee. The transfer fee was an additional condition unilaterally imposed by the bank and was not contained in the original mortgage agreement. The court held the bank’s conduct in demanding additional payment was unconscionable and denied its requested relief. 564 P.2d at 1019.
In Murphy, the court refused to permit a mortgagee to accelerate the maturity of a promissory note because the court found that the mortgagee had attempted to hinder timely payment by the mortgagor and had encouraged its default. 278 P.2d at 824. The court determined that this conduct was motivated solely by the mortgagee’s desire to accelerate the maturity of the entire debt and held that the technical default of tendering late payment of taxes was insufficient to justify acceleration when the mortgagee had acted unconscionably. Id. at 826.
According to our reading of these cases, whether the Oklahoma court permits acceleration depends on the conduct of the mortgagee and whether he has dealt fairly with the debtor or has acted oppressively or unconscionably. This view is consistent with that of several other jurisdictions. See Phipps v. First Fed. Sav. & Loan Ass’n, 438 N.W.2d 814, 819 (S.D.1989) (an acceleration clause will be enforced absent fraud, bad faith, or other conduct on part of the mortgagee which would make it unconscionable to enforce the clause); Key Int’l Mfg., Inc. v. Stillman, 103 A.D.2d 475, 480 N.Y.S.2d 528, 530 (1984) (absent some element of fraud, exploitative overreaching or unconscionable conduct by the creditor, the court should enforce an acceleration clause), aff'd as modified, 66 N.Y.2d 924, 498 N.Y.S.2d 795, 489 N.E.2d 764 (1985); Bowen v. Danna, 637 S.W.2d at 564 (a court in equity can relieve a debtor from the hardship of acceleration based on accident, mistake, fraud, or inequitable conduct of the creditor); First Fed. Sav. & Loan Ass’n v. Ram, 135 Ariz. 178, 659 P.2d 1323, 1325 (Ct.App.1982) (same); Ciavarelli v. Zimmerman, 122 Ariz. 143, 593 P.2d 697, 698-99 (Ct.App.1979) (same).
Nothing in the record warrants an application of these equitable principles in the instant case. Plaintiffs did not exercise their option to accelerate after a considerable delay. See, e.g., Brown, 603 F.2d at 1379; Caspert v. Anderson Apartments, Inc., 196 Misc. 555, 94 N.Y.S.2d 521, 526 (Sup.Ct.1949). Nor did the default concern a technical, secondary obligation such as payment of taxes. Rather, the default violated the essence of the written agreement, timely payment of principal and interest. Finally, no evidence was presented that Greenberg attempted to hinder or otherwise cause the default so as to make his conduct unconscionable. Defendants had complete control over the event which triggered plaintiffs’ right to accelerate. The mere fact that the plaintiffs' interest might not have been in jeopardy, without some misconduct on the part of the plaintiffs, does not warrant a refusal to enforce an acceleration clause which was a bargained-for element of the contract between the parties. Under the circumstances of this case, we conclude that there are no material issues of fact under the applicable Oklahoma law regarding the enforceability of the acceleration clause and the issue of good faith.
Service Business also asserts that plaintiffs waived their right to accelerate through their prior acceptance of late payments. Ordinarily, prior acceptance of late payments only waives the right to accelerate as to those past installments. McGowan v. Pasol, 605 S.W.2d 728, 732 (Tex.Civ.App.1980). When a creditor establishes a prior course of dealing in accepting late payments, the creditor is estopped from declaring total debt due on future defaults. Id. Estoppel does not apply, however, when the obligor gives the debtor notice that the terms of the agreement will be enforced in the future. Id.; Dunn v. General Equities of Iowa, Ltd., 319 N.W.2d 515, 517 (Iowa 1982); see also Sternberg v. Mason, 339 So.2d 373, 376 (La.Ct.App.1976) (waiver rule has no application where obligee made frequent demands for punctual payment or accepted tardy payment as a result of unwilling or forced indulgence). Because Service Business or its officers received adequate notice by virtue of the disclaimer executed in April, 1986, that the trustees demanded all future payments to be made timely, no material issue of fact exists on the issue of waiver.
Defendants also argue that they did not receive a fair trial on the disclaimer issue because they were not permitted to introduce evidence concerning Greenberg’s motivation in accelerating the note. Apparently, the district court refused to allow any evidence concerning the default because the issue had been decided on summary judgment. The question of whether certain evidence is relevant to an issue before the jury is within the sound discretion of the district court. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). If Service Business believed evidence regarding Greenberg’s motivation was relevant to its claim tried to the jury, it should have made such an objection during trial. Based on the objections contained in the record, we do not believe the trial court abused its discretion in so ruling.
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.
. Service Business relies on Okla.Stat. tit. 15, § 173 (1981), which states that the law implies a reasonable time for payment when no date is provided for performance of a contractual obligation. But the law implies a reasonable time for payment only when the contract is ambiguous and the intention of the parties cannot be determined from the express language and terms of the contract. See id. § 154; Lindhorst v. Wright, 616 P.2d 450, 453 (Okla.App.1980). Because the terms of the agreement as a whole clearly indicate a time for payment, this rule cannot appropriately be applied to the promissory note at issue in this case.
. Under the security agreement, the creditor, AVEMCO, had the option to accelerate the entire debt if the debtor leased the property, an airplane, without its written consent. In 1973, the debtor leased the airplane to a third party and also executed an option to purchase. The debtor sent notice of the agreement to AVEM-CO. Two years later, the lessee exercised its option to purchase and tendered full payment of the remainder owing under the promissory note. AVEMCO, after two years of inaction, refused the tendered payment and instead exercised its option to accelerate under the due-on-lease clause but also demanded an additional sum for the cost of insurance premiums. After the debtor refused to pay the additional amount, AVEMCO repossessed the airplane and sold it for a higher profit. 603 F.2d at 1369.
. In Murphy, the court discussed several cases from other jurisdictions which considered a technical default to be a failure to comply with a secondary obligation such as payment of taxes or assessments as opposed to a default on payment of principal or interest. See 278 P.2d at 825. Generally, these cases consider a default in payment of a principal or interest payment to be a substantial breach rather than a technical default. See e.g., Graf v. Hope Bldg. Corp., 254 N.Y. 1, 171 N.E. 884, 885-86 (1930).
. The court in Continental Federal Savings & Loan Association v. Fetter stated:
[Acceleration clauses are bargained-for elements of mortgages and notes to protect the mortgagee from risks connected with transfer of the mortgaged property. The underlying rationale for an acceleration clause is to insure that a responsible party is in possession, to protect the mortgagee from unanticipated risks, and to afford the lender the right to be assured of the safety of his security. However, an action to accelerate and foreclose a mortgage is an equitable proceeding, and the equitable powers of the court will not be invoked to impose an extreme penalty on a mortgagor with no showing that he has violated the substance of the agreement.
564 P.2d at 1017-18 (footnote omitted) (emphasis added).
.Any issue as to Greenberg’s refusal to provide a disclaimer was conclusively decided by the jury, which decision is not an issue in this appeal. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
1
] | songer_direct1 |
UNITED STATES of America, Plaintiff-Appellee, v. John RUPPEL, Defendant-Appellant.
No. 83-2380
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 9, 1984.
Rehearing and Rehearing En Banc Denied March 7, 1984.
Robert W. Ritchie, Richard A. Hamra, II, Knoxville, Tenn., for defendant-appellant.
Robert J. Wortham, U.S. Atty., Beaumont, Tex., Sidney M'. Glazer, Acting Chief, Robert J. Erickson, Deputy Chief, Appellate Section, Crim. Div., U.S. Dept, of Justice, Washington, D.C., for plaintiff-appellee.
Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.
PER CURIAM:
John Ruppel was convicted in May 1980 of conspiring to violate the drug laws and of possession of marijuana with intent to distribute. 21 U.S.C. §§ 841, 846 (1976 & Supp.1981). Among the eight claims asserted in Ruppel’s direct appeal was that of prosecutorial vindictiveness. Ruppel argued that the Government violated due process when it reindicted him to bring the conspiracy and substantive drug charges after an earlier RICO indictment resulted in a mistrial because the jury was unable to reach a verdict. We affirmed Ruppel’s conviction. 666 F.2d 261 (5th Cir.), cert. denied, 458 U.S. 1107, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982). “Absent evidence of actual retaliation, mere reindictment after a mistrial due to a hung jury is insufficient to demonstrate the realistic likelihood of prosecutorial vindictiveness .... ” 666 F.2d at 267 (footnote omitted). Ruppel now challenges his conviction collaterally, 28 U.S.C. § 2255 (1976), raising as his sole ground the Supreme Court’s intervening decision in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). See Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). The district court denied relief, and we affirm.
Ruppel reads Goodwin to establish that changes in the charging decision made after the initial trial presumptively result from improper prosecutorial motives. The Goodwin Court undoubtedly focused on the salient differences between pretrial and posttrial settings in determining whether a presumption of prosecutorial vindictiveness applied. 457 U.S. at 371, 102 S.Ct. at 2493. But Goodwin and every other prosecutorial vindictiveness decision since the doctrine was announced have been rooted in the proposition that one cannot be punished for exercise of a protected right. E.g., id. at 371, 102 S.Ct. at 2488; Bordenkircher v. Hayes, 434 U.S. 357, 362-64, 98 S.Ct. 663, 667-68, 54 L.Ed.2d 604 (1978); North Carolina v. Pearce, 395 U.S. 711, 723-24, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). Appellant unmoors developing doctrine from this original principle by ignoring one crucial fact: the altered charge in his case cannot have resulted from any exercise of right on his part. His first trial mistried not because of any action of appellant, but because the jury was simply unable to reach a verdict.
This case therefore presents no possibility of vindictiveness because Ruppel made no move for which the Government’s decision to reindict can be seen as exacting retribution. Compare United States v. Thurnhuber, 572 F.2d 1307, 1309-11 (9th Cir.1977) (no vindictiveness in addition of counts after mistrial on hung jury) with United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407, 415-16 (1974) (vindictiveness presumed from increased charges after trial court granted mistrial on defendant’s motion). But see United States v. Motley, 655 F.2d 186 (9th Cir.1981). The freedom of criminal defendants to exercise their legal rights is neither infringed nor chilled by the possibility that should the jury be unable to reach a verdict the prosecutor might “up the ante.” See United States v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983) (en banc). We find nothing in Goodwin to undermine our original decision that due process was not violated by reindictment in this case.
AFFIRMED. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. | [] | [
1
] | songer_r_fed |
Roy A. OAKLEY et al., Appellants, v. Arthur E. SUMMERFIELD, Postmaster General of the United States, et al., Appellees. Arthur E. SUMMERFIELD, Postmaster General of the United States, et al., Appellants, v. Roy A. OAKLEY et al., Appellees. Roy A. OAKLEY et al., Appellants, v. Arthur E. SUMMERFIELD, Postmaster General of the United States et al., Appellees.
Nos. 12918, 12971, 13033.
United States Court of Appeals District of Columbia Circuit
Argued Jan. 31, 1956.
Decided March 29, 1956.
Mr. Josiah Lyman, Washington, D. C., for appellants in Nos. 12,918 and 13,023, and appellees in No. 12,971.
Mr. William F. Becker, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellees in Nos. 12,918 and 13,023 and appellants in No. 12,971.
Mr. Oliver Gasch, Principal Asst. U. S. Atty., also entered an appearance for appellants in No. 12,971.
Before EDGERTON, Chief Judge, and WASHINGTON and BASTIAN, Circuit Judges.
PER CURIAM.
This litigation is similar to the Tour-lanes cases (Tourlanes Publishing Co. v. Summerfield), 97 U.S.App.D.C. -, 231 F.2d 773. Oakley is a photographer and not a publisher. However, he sells numerous admittedly innocuous books and publications, in addition to the photographs found by the Post Office Department to be obscene. The judgment of the District Court, which was similar to its order in Tourlanes, will likewise be affirmed (No. 12,971). During oral argument, counsel for Oakley made the same statement concerning his cross-appeal as was made by counsel for Tour-lanes. On a like basis, the appeals by Oakley will be dismissed (Nos. 12,918 and 13,023).
So ordered. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
0
] | songer_direct2 |
UNARCO INDUSTRIES, INC., an Illinois corporation and Overhead Door Corporation, an Indiana corporation, Plaintiffs-Appellees, v. KELLEY COMPANY, Inc., a Wisconsin corporation, Defendant-Appellant.
No. 71-1522.
United States Court of Appeals, Seventh Circuit.
Argued June 7, 1972.
Decided Sept. 7, 1972.
Norman C. Skogstad, Grafton, Wis., David L. Petersen, Elwin J. Zarwell, and John S. Sammond, Milwaukee, Wis., for defendant-appellant.
Stanley J. Adelman and Frederic S. Lane, Chicago, Ill., for plaintiffs-appellees.
Before DUFFY, Senior Circuit Judge, DURFEE , Senior Associate Judge and ESCHBACH , District Judge.
Senior Associate Judge James R. Durfee of the United States Court of Claims is sitting by designation.
District Judge Jesse E. Esebbaeh of the Northern District of Indiana is sitting by designation.
DUFFY, Senior Circuit Judge.
This is a suit for declaratory relief seeking the proper construction of a written agreement. The critical question is whether or not the patent license herein considered was assignable without the consent of the licensor. The District Court held the agreement to be assignable. A motion to restrain production and sale of the patented product pending a decision by the District Court was held in abeyance and finally denied.
The principal product manufactured by Kelley Company, Inc., the defendant herein, is based upon a patent granted to Garrett P. Kelley. The Company produced material-handling equipment known as “dockboard.” This product permits the movement of merchandise from the bed of a truck to a loading dock.
In 1964, Kelley became aware that Unarco, a large corporation, was marketing and selling a dockboard which Kelley believed infringed its patented invention.
Kelley Company sued Unarco in the Federal District Court in Tennessee for patent infringement. This litigation became protracted and thus very expensive. Settlement discussions were held, and it became apparent to all that it would be for the best interest of both parties to enter into a nonexclusive license agreement terminating the litigation.
It became apparent that Unarco was not a serious competitor in the dock-board industry. Unarco’s principal interest was to use dockboard as a selling tool for its principal product which was shelving. The settlement permitted Un-arco to manufacture annually a few hundred dockboards without paying a royalty. While operating under this agreement, Unarco never exceeded the minimum number of royalty-free dockboards anticipated by the parties to the agreement.
Thereafter, the President of a Texas conglomerate named Overhead Door attempted to buy or merge with Kelley Company because of its desire to operate in the dockboard field. No agreement was reached.
Overhead Door then contacted Unarco with respect to the possible purchase of Unarco’s dockboard division [Sturdi-bilt]. On August 4, 1969, Overhead Door and Unarco entered into a contract whereby Overhead Door agreed to purchase and Unarco agreed to sell Unarco’s dockboard business and all the assets used in connection therewith. In this contract, Unarco agreed not to compete for at least five years in the dockboard business with Overhead Door, and furthermore warranted that “Every contract, license agreement or other intangible included among Dock Board Assets is assignable by UNARCO without prior consent of any other person. . . . ”
Subsequently, in a letter dated August 13, 1969, the attorney for Kelley was notified by a newspaper article of the contemplated acquisition of the Sturdi-bilt (dockboard) division of Unarco by Overhead Door. Overhead Door was advised by Kelley’s attorney that their license agreement for the patents “was and is limited to Unarco.”
On October 20, 1969, Unarco and Overhead Door commenced this action in District Court for a declaratory judgment with respect to the assignability of the nonexclusive patent license.
The District Court held that the compromise agreement was a simple contract to be construed under the common law of the State of Illinois. Further, that as Illinois common law views a liberal construction of the assignability of all contracts, the license of the patent was assignable.
Defendant Kelley points out that the nonexclusive license agreement or contract between Kelley and Unarco was not only the result of a compromise settlement but it was, in fact, a forbearance.
Kelley points out that if the judgment of the District Court is sustained, Kelley’s refusal to sell out to Overhead Door will be circumvented, and Overhead Door would, indirectly, obtain Kelley’s patent rights which Kelley had consistently refused to sell to Overhead Door.
The threshold question before our Court is whether the law of the State of Illinois, where the contested agreement was consummated, applies, or whether determination of this issue in federal court falls within one of the exceptions to the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) requiring the application of federal common law.
The Supreme Court considered this exception to Erie in Sola Electric Co. v. Jefferson Co., 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165 (1942). In that opinion regarding patent license litigation, the Supreme Court also considered the application of estoppel and whether estoppel in litigation concerning patent licenses and the Sherman Act was a state or federal question. The Court held that estoppel as applied was a federal question where, if invoked, it would thwart the purposes of statutes of the United States. The Erie doctrine was circumvented by the Court in Sola Electric Co., supra, by the following passage:
“It is familiar [doctrine] that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules. In such a case our decision is not controlled by Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.] There we followed state law because it was the law to be applied in the federal courts. But the doctrine of that case is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law. Royal Indemnity Co. v. United States, 313 U.S. 289, 296 [61 S.Ct. 995, 997, 85 L.Ed. 1361;] Prudence [Realization] Corp. v. Geist, 316 U.S. 89, 95 [62 S.Ct. 978, 982, 86 L.Ed. 1293;] Board of Comm’rs. [of Jackson County] v. United States, 308 U.S. 343, 349 [350, 60 S.Ct. 285, 287, 288, 84 L.Ed. 313;] cf. O’Brien v. Western Union Telegraph Co. [1 Cir.,] 113 F.2d 539, 541. * * * To the federal statute and policy, conflicting state law and policy must yield.”
Article I, Section 8, Clause 8 of the United States Constitution provides that Congress has been granted the power “ . . . [T]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This exclusive and personal concept of patents was considered by Congress upon implementation of the Patent Act of 1952 and other legislation aimed at federal control of patent regulation. When an inventor or person holding patent rights desires to license or relinquish any part of the patent monopoly, such person is utilizing the monopoly of rights intended by the framers of the Constitution and the legislation of Congress to reward invention and originality. This monopoly conferred by federal statute as well as the policy perpetuating this monopoly, so affects the licensing of patents, and the policy behind such licensing is so intertwined with the sweep of federal statutes, that any question with respect thereto must be governed by federal law.
We are of the opinion that the question of assignability of a patent license is a specific policy of federal patent law dealing with federal patent law. Therefore, we hold federal law applies to the question of the assignability of the patent license in question.
We agree with Kelley that we are here considering a specific policy of the patent law dealing with federal patent rights, and in that respect our problem does not involve the general state of Illinois contract law.
The long standing federal rule of law with respect to the assignability of patent license agreements provides that these agreements are personal to the licensee and not assignable unless expressly made so in the agreement. Troy Iron & Nail Factory v. Corning, 55 (14 How.) U.S. 193, 14 L.Ed. 383 (1852); Hapgood v. Hewitt, 119 U.S. 226, 7 S.Ct. 193, 30 L.Ed. 380 (1886); Lane & Bodley Co. v. Locke, 150 U.S. 193, 14 S.Ct. 78, 37 L.Ed. 1049 (1893); Wood Harvester Co. v. Minneapolis Harvester Co., 61 F. 256 (8 Cir., 1894); Bowers v. Lake Superior Contracting, 149 F. 983 (8 Cir., 1906). See also Deller’s Walker on Patents, Sec. 409 (2d Ed. 1965).
In Wood Harvester Co. v. Minneapolis Harvester Co., supra, the license agreement said nothing pertaining to assignability. That Court said 61 F. on page 258: “ . . . I think the absence of any words of assignability in this license shows an intent to make it run to [licensees] alone, as clearly as if words of nonassignability had been incorporated therein.” In post-Erie federal decisions, this rule of non-assignability has been unquestioned. Rock-Ola Mfg. Corp. v. Filben Mfg. Co., 168 F.2d 919 (8 Cir., 1948), cert. den. 335 U.S. 892, 69 S.Ct. 249, 93 L.Ed. 430.
This rule of non-assignability absent consent has been adhered to by state and federal courts. We therefore hold the District Court was in error in departing from this well established rule.
We hold the nonexclusive license agreement which was, in fact, a forbearance of suit, here in question was personal, and that it was not assignable without Kelley’s consent. Further, the attempted assignment by Unarco Industries, Inc. to Overhead Door was and is void.
The judgment of the District Court is
Reversed.
. The license agreement pursuant to the settlement between Kelley and Unarco was executed on January 1, 1968. The license provided that Kelley grant Unarco for the entire term of specified patents “a nonexclusive license to make, have made, use and sell dockboards coming within the scope of any claims of any of the said patents.” The license further provided for royalties on dockboards produced by Unarco over a stipulated minimum. Also, as part of the agreement, Unarco issued a nonexclusive license agreement to Kelley for two Unarco patents under which agreement Kelley was to pay a royalty.
. Appellant Kelley stated in its brief to this Court “This overture and approach by the Texas conglomerate was politely rebuffed.”
. On October 23, 1969, three days after commencing this action, Unarco entered into an assignment of licensing agreement with Overhead Door, assigning to Overhead all their rights to royalties from Kelley under that agreement for the use of Unareo’s patents.
. The exception to application of state law to outcome determinative questions appears on page 78 of 304 U.S., on page 822 of 58 S.Ct. of Erie, supra “Except in matters [governed] by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the state.”
. 35 U.S.C. § 1 et seq.
. Although we need not consider state law, Illinois law is also well settled. The case of Havana Press Drill Company v. Ashurst, 148 Ill. 115, 35 N.E. 873 (1893) was not called to the attention of the District Court. In that case, a license was granted which was thereafter assigned. There was no statement in the license as to its assignability. The Illinois Supreme Court there stated: “In the present case the Drill Company had no authority to assign the license for two reasons, (1) Because the license to it did not run to its assigns, and was, therefore, merely personal. . . . ” See also Smith v. Preston, 170 Ill. 179, 48 N.E. 688 (1897); Rhodes v. Ashurst, 176 Ill. 351, 52 N.E. 118 (1898). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? | [
"auto",
"chemical",
"drug",
"food processing",
"oil refining",
"textile",
"electronic",
"alcohol or tobacco",
"other",
"unclear"
] | [
8
] | songer_respond1_1_4 |
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE and Kathryn Horanic v. Mark J. MARKIEWICZ, Commonwealth of Pennsylvania, Department of Public Welfare, Appellant/Cross Appellee No. 90-3327, Mark J. Markiewicz, Appellee/Cross Appellant No. 90-3373.
Nos. 90-3327, 90-3373.
United States Court of Appeals, Third Circuit.
Argued Nov. 13, 1990.
Decided April 3, 1991.
Jason W. Manne (argued), Asst. Counsel, Office of Legal Counsel Dept, of Public Welfare, Pittsburgh, Pa., for appellant/ cross appellee.
Zanita A. Zacks-Gabriel (argued), Erie, Pa., for appellee/cross appellant.
Before STAPLETON, HUTCHINSON, and ROSENN, Circuit Judges.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
This case presents a question of first impression. Section 654(4)(B) of Title 42 of the United States Code provides limited access to the federal courts for state agencies seeking to obtain or enforce child support orders in the discharge of their obligations under the Aid to Families with Dependent Children Program (“AFDC”). “[Wjhen [reciprocal] arrangements and other means have proven ineffective, the State may utilize the Federal courts to obtain or enforce court orders for support; ....” 42 U.S.C. § 654(4)(B). We must decide whether the Pennsylvania Department of Public Welfare (“DPW”) has demonstrated that “other means have proven ineffective” in this case so as to establish federal court jurisdiction. The district court dismissed the case for lack of subject-matter jurisdiction and we will affirm.
I.
Kathryn Horanic (“Horanic”) is a resident of Pennsylvania. On December 31, 1977, in the state of Pennsylvania, she and Mark Markiewicz (“Markiewicz”) engaged in sexual relations. Markiewicz, a resident of New Mexico, was visiting family and friends in Pennsylvania at the time. Approximately nine months later, Horanic gave birth to her son, Gregory. Horanic alleges that Markiewicz is her son’s father.
Subchapter IV-A of the Social Security Act established AFDC. 42 U.S.C. § 601. AFDC provides funds to state programs giving financial assistance to needy families with dependent children. Any state desiring AFDC money must submit a plan to the Secretary of Health and Human Services (“Secretary”) setting forth the manner in which it will administer the funds. 42 U.S.C. § 601. 42 U.S.C. § 602 lists the requisite features of qualifying plans. For example, the plan must provide that each individual applying for aid will assign all support rights to the state. 42 U.S.C. § 602(a)(26)(A).
The state, in turn, must enforce those rights. Title IV-D of the Social Security Act (“Title IV-D”) established the Child Support Enforcement Program under which each participating state must create a “IV-D agency” to administer the state’s program. The regulations promulgated thereunder set forth the minimum staffing and operational requirements of IV-D agencies. See 45 C.F.R. § 303. One duty of a IV-D agency is to attempt to establish the paternity of any child recipient born out of wedlock and to obtain support payments from the child’s father.
Ms. Horanic receives AFDC funds. Hor-anic and Erie County authorities commenced an action seeking child support from Markiewicz in the Pennsylvania Court of Common Pleas in 1979. When it was determined that Markiewicz was residing in New Mexico, the court ordered that the relevant documents be transmitted to New Mexico pursuant to the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”). Both New Mexico and Pennsylvania have adopted RURESA. 23 Pa.Cons.Stat. §§ 4501-4540; N.M.Stat.Ann. §§ 40-6-1 to -41.
RURESA seeks to “improve and extend by reciprocal legislation the enforcement of duties of support.” RURESA § 1, 9B U.L.A. 394 (1968). The prefatory note explains that the
Act itself creates no duties of family support but leaves this to the legislatures of the several states. The Act is concerned solely with the enforcement of the already existing duties when the person to whom a duty is owed is in one state and the person owing the duty is in another state.
Section 18 of RURESA requires the court in the responding state to docket the case and notify the prosecuting attorney of the action. The prosecuting attorney must prosecute the case diligently. RURESA § 18, 9B U.L.A. 461 (1968).
New Mexico authorities served the complaint on Markiewicz and assigned an assistant attorney general to handle the case. Markiewicz’s attorney filed a motion to dismiss and an answer denying paternity. The New Mexico state court set a trial date.
It is not clear whether the court held a full-scale bench trial. The court's decision was never appealed and the transcript was destroyed when the time for appeal expired. It is clear, however, that on February 7, 1980, New Mexico presented to the court the papers that the Erie County Domestic Relations Office had provided, and Markiewicz testified on his own behalf. At the conclusion of the session, the court dismissed the case with prejudice.
When notified, the Erie County Reciprocal Support Office inquired as to the reasons for the dismissal. It learned that a paternity affidavit had been omitted from the papers transmitted to New Mexico. Erie County sent the paternity affidavit and asked the assistant attorney general to reopen the case. He did not. Erie County did not pursue the matter further and the order of the New Mexico court was never appealed.
Five years later, Erie County authorities brought a long arm action in the Erie County Court of Common Pleas. At that time, the applicable statute of limitations for support actions in Pennsylvania was six years. That statute had run and the court dismissed the action on statute of limitations grounds.
In 1988, the Supreme Court declared the six-year statute of limitations unconstitutional. Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). The Pennsylvania legislature responded by enacting an eighteen-year statute of limitations for paternity actions. 23 Pa.Cons. Stat. § 4343(b). The statute specifically permits parties to refile actions dismissed as a result of the prior limitations period. However, neither DPW nor Erie County officials have refiled Horanic’s action in the Court of Common Pleas.
No further action was taken in Horanic’s case until 1990. By then, the responsibility for the matter had been transferred to the DPW’s office of legal counsel for special handling. DPW filed the present action in the district court for the Western District of Pennsylvania.
DPW relies on 42 U.S.C. § 654(4)(B) to establish the district court’s subject-matter jurisdiction. That section permits states seeking support orders to bring an action in federal court when reciprocal “arrangements and other means have proven ineffective.” The district court concluded that DPW did not demonstrate that “other means have proven ineffective.” Specifically, it noted that the change in Pennsylvania's statute of limitations removed the bar to proceeding with a long arm action in the Erie County Court of Common Pleas.
DPW appeals the final order of the district court dismissing the action for lack of subject-matter jurisdiction. This Court has jurisdiction over DPW’s appeal. 28 U.S.C. § 1291. No jurisdictional facts are in dispute. Accordingly, we exercise plenary review of the district court’s order dismissing the action for lack of subject-matter jurisdiction. See York Bank and Trust Co. v. Federal Savings and Loan Ins. Corp., 851 F.2d 637 (3d Cir.1988).
II.
A. The “Other Means” Requirement
Congress enacted a statutory scheme that contemplates the use of RURESA or similar arrangements as the primary vehicle for obtaining support orders. Thus, IV-D agencies must pursue such matters “utilizing any reciprocal arrangements adopted with other states” before a federal court can take jurisdiction over a support action. 42 U.S.C. § 654(4)(B). In the present case, Pennsylvania officials utilized RURESA in the initial efforts to obtain a support order.
In addition to reciprocal arrangements, the statute directs states to pursue “other means.” IV-D agencies seeking support orders must take steps in addition to those available through arrangements like RURESA before coming to federal court. At a minimum, the statute requires states to pursue paternity and support actions through an arrangement like RURESA, as well as through a long arm proceeding in its own state courts.
B. The “Proven Ineffective” Requirement
In the present case, Pennsylvania authorities have pursued a support order through RURESA as well as a long arm proceeding in the Pennsylvania state courts. Neither effort yielded an order of support. However, to establish federal jurisdiction, an unsuccessful IV-D agency must demonstrate that the use of RURESA and its own state courts have “proven ineffective” within the meaning of § 654(4)(B).
We believe that the statutory language requires some showing of due diligence on the part of the IV-D agency seeking access to the federal courts. When Congress limited federal court jurisdiction to those cases where reciprocal “arrangements and other means have proven ineffective,” it limited access to those cases where the prosecuting IV-D agency has diligently employed available nonfederal procedures and those procedures have proven unsuccessful.
DPW acknowledges that at the time it instituted this action, it could have proceeded in' the Pennsylvania Court of Common Pleas and could have secured in personam jurisdiction over Markiewicz there with service under Pennsylvania’s long arm statute. Such an action was dismissed five years ago solely on the basis of an expired statute of limitations. The Supreme Court has declared that statute unconstitutional, and the Pennsylvania legislature has enacted legislation that permits parties to refile action dismissed as a result of the prior statute of limitations. We hold that such an action constitutes “other means” for the purposes of the jurisdictional requirements of § 654. Because DPW has not exhausted this option, it cannot demonstrate that “other means have proven ineffective” within the meaning of the statute.
DPW makes much of the difference between the language of § 654 and that of § 652. Section 652(a)(8) provides that the Secretary should certify an action seeking to enforce a support order when “utilization of the federal courts is the only reasonable method of enforcing such order....” Section 660 provides that the federal district courts “shall have jurisdiction” over matters the Secretary certifies under § 652(a)(8). Because of the difference between these sections, DPW maintains that the jurisdictional requirements of § 654 are “more relaxed” and we should apply them “liberally.” In particular, we understand it to suggest that the absence of § 652’s “the only reasonable method” language means that a plaintiff can gain access to the federal courts under § 654 without exhausting all available state remedies.
In support of its position, DPW argues that one “obvious” reason Congress intended to provide a “more relaxed standard” in § 654(4)(B) is that “there is no danger of a flood of child support litigation” coming into federal courts because § 654(4)(B) can be invoked only by IV-D agencies in AFDC cases. “Unlike §§ 652(a)(8) and 660, [§ 654(b)(4)(B) ] cannot be used on behalf of private litigants.”
DPW misreads § 652(a)(8). Section 652 provides that the Secretary will establish a specific organizational unit with responsibility for coordinating, monitoring and providing assistance to states seeking to satisfy the requirements of their AFDC plans. One of the responsibilities of that unit is to “receive applications from States for permission to utilize the courts of the United States to enforce court orders for support against absent parents.... ” § 652(a)(8) (emphasis added). 45 C.F.R. § 303.73 sets forth the factors a IV-D agency must establish when seeking the Secretary’s permission to utilize the federal courts for this purpose. Thus, not only is § 652(a)(8) similarly limited to states seeking to use the federal courts, it is also meant to apply to AFDC cases.
DPW likens itself to an executive branch agency interpreting the statute it is charged to administer. DPW argues that Congress intended for courts to give deference to a IV-D agency’s determination that “other means have proven ineffective.” See Levine v. Fairleigh Dickinson University, 646 F.2d 825, 831 (3d Cir.1981) (“[w]hen presented with a problem of statutory construction, we must give deference to the interpretation given the statute by the officers or agency charged with its administration”). DPW’s argument is unavailing. The Secretary of Health and Human Services is charged with the administration of AFDC, not the states.
The differences in statutory language relied upon by DPW do nothing to obviate the showing DPW must make in order for it to proceed under § 654(4)(B). Like any other party seeking to invoke the jurisdiction of the federal court, DPW has the burden of proving that federal court jurisdiction is present. See Schultz v. Cally, 528 F.2d 470, 473 (3d Cir.1975). In this case, DPW is unable to do so because an avenue of effective relief remains open to it in the Court of Common Pleas. It is unnecessary for us to consider here whether exhaustion of all state remedies is a prerequisite to jurisdiction under § 654. Where, as here, a state remedy is readily available and that remedy appears comparable to the federal one, we are unpersuaded that Congress intended to permit preemption of the state process.
If DPW obtains a valid order from the Pennsylvania courts and New Mexico officials will not enforce that order as DPW apparently fears may happen, DPW may then seek the assistance of the federal courts. In such an event, DPW could attempt to proceed under either § 654(4)(B) or §§ 652(a)(8) and 660.
C. The District Court’s Opinion
In its opinion dismissing DPW’s action, the district court ruled that it had personal jurisdiction over Markiewicz and that the dismissal of the New Mexico proceeding had no res judicata effect on DPW’s action. It was only after making those determinations that the court considered the question of subject-matter jurisdiction.
We believe the district court erred in addressing the res judicata and personal jurisdiction issues because they were not essential to the district court’s conclusion that it lacked subject-matter jurisdiction. “The initial inquiry in any suit filed in federal court must be whether the federal court possesses subject-matter jurisdiction.” Rice v. Rice Foundation, 610 F.2d 471, 474 (7th Cir.1979). See also Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2714-15, 61 L.Ed.2d 464 (1979) (subject-matter jurisdiction is “fundamentally preliminary” issue). Because of the district court’s lack of subject matter jurisdiction, these other aspects of the court’s memorandum decision will have no collateral consequences, and we decline to address them.
III.
The availability of a long arm proceeding in the Pennsylvania Court of Common Pleas precludes DPW from demonstrating that other means of obtaining a support order “have proven ineffective.” The district court correctly found that it lacked subject-matter jurisdiction and properly dismissed the complaint. We will affirm the order of the district court.
. We need not reach the question of whether the RURESA arrangements have proven ineffective in this matter. We note, however, that no appeal was ever taken from the New Mexico dismissal. We note further that there is no evidence that New Mexico officials acted improperly in their handling of this action. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party | What is the nature of the counsel for the respondent? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
3
] | songer_counsel2 |
Syed J. Iqbal JAFREE, Plaintiff-Appellant, v. William J. SCOTT, Individually and as Attorney General of the State of Illinois, et al., Defendants-Appellees.
Nos. 76-2220, 78-1103.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 3, 1978.
Decided Nov. 7, 1978.
Rehearing Denied Dec. 6, 1979.
Syed M. Jafree, pro se, Sheldon R. Waxman, Chicago, Ill., for plaintiff-appellant.
Herbert Lee Caplan, Chicago, Ill., for defendants-appellees.
Before CUMMINGS, PELL and TONE, Circuit Judges.
PER CURIAM.
The root of the claims involved in the present consolidated appeals by Jafree is before this court for the second time. In our order of June 25,1975, with one narrow exception, we affirmed the judgment of the district court dismissing by way of summary judgment Jafree’s cause of action. While Jafree is continuing to contend that he remains to this day an assistant Attorney General of Illinois, our prior decision clearly puts to rest any such claim as we affirmed the district court's judgment that he had no property interest in his employment and that he was subject to the summary dismissal which occurred.
In our decision of Í975 we did note that it was not clear, however, that some liberty interest of Jafree may not have been violated by claimed stigmatizing communications following the discharge, particularly one from Scott to the American Civil Liberties Union. We therefore stated in our holding,
Reluctantly, because of doubt from the entire record as to Jafree’s ultimate ability to sustain the liberty position he asserts, we conclude, notwithstanding the borderline aspects of the particular issue, that there was sufficient matter presented outside the pleading as to require at the least further exploration via summary judgment procedure and if that does not eliminate the issue of fact, then a trial on the liberty interest issue.
In view of some narrowing of concepts in the matter of the liberty interest issue since our prior decision, see Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), and Schwartz v. Thompson, 497 F.2d 430 (2d Cir. 1974), we might well have second thoughts as to the correctness of the prior disposition. That issue, however, is not directly before us so we will address only the issue which is properly before us.
In determining what that issue is, we look first at the notice of appeal filed June 9, 1976. That notice purports to launch an appeal not only as to the May 7, 1976 (formally entered May 10, 1976) order denying Jafree’s first 60(b) motion but also as to the judgment of dismissal dated March 30,1976. As far as the judgment of March 30 was concerned the 30 days for filing notice of appeal was long past, there was no extension of time requested, and even if there had been an additional 30 days as allowed by Rule 4, F.R.A.P., it also would have expired prior to June 9, 1976. The 60(b) motion was filed within the 30 day period after the judgment of dismissal but “Rule 60(b) was not intended to be an alternative method to obtain review by appeal or as a means of enlarging by indirection the time for appeal.” Swam v. United States, 327 F.2d 431, 433 (7th Cir.) cert. denied, 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed.2d 55 (1964). The reference in the notice to the judgment, therefore, is without effect because of the lack of timeliness. The failure to appeal the judgment of dismissal is of some significance because of the contention raised on appeal for the first time, at least as far as either 60(b) motion is concerned, that in some way Jafree was excused from prosecuting his action because the defendants had not answered certain interrogatories. This was a matter plainly visible in the record before the district court, unlike Jafree’s absence from the country raised on the first 60(b) motion and the alleged fraud of defendants and their collusion with the union attorney formerly representing Jafree raised in the second 60(b) motion. The record reflected that the interrogatories had not been answered and we regard the failure of Jafree to raise this by direct appeal as a waiver.
Even if there were no waiver we would not view the dismissal for want of prosecution as an abuse of discretion. The defendant’s answers to the interrogatories were overdue when the court struck plaintiff’s affidavit and ordered another one filed within ten days and when the court later extended that time for two weeks. It must be assumed that the court determined that plaintiff should be required to file a new affidavit regardless of whether the interrogatories had been answered, which it plainly had power to do. Plaintiff’s failure to comply with the court’s order was an adequate basis for dismissal.
It should also be remembered that the basic duty of prosecuting the action remains on the plaintiff who has brought it, not the court before which it pends nor the defendant who generally, in any event, is an unwilling participant in the proceedings. It is quite sufficient to justify dismissal if the plaintiff does nothing, as he knows that until something is done there will be no trial. See Forest Nursery Company v. Crete Carrier Corporation, 319 F.Supp. 213, 215 (E.D.Tenn.1970).
There remains then for decision the matter of the propriety of the district court’s denial of relief on the two 60(b) motions. This is all that is before the court despite the mass of wide-ranging, often conclusory, material from Jafree by means of briefs, motions, and correspondence which can only be regarded as a counter-stigmatization program with a self-encomiastic background.
In considering the two motions we first note that “[i]t is well settled that neither a dismissal with prejudice for failure to prosecute nor a refusal to vacate such a judgment will be reversed on appeal except for abuse of discretion.” Redac Project 6426, Inc. v. Allstate Ins. Co., 412 F.2d 1043, 1046 (2d Cir. 1969). Moreover, in reviewing the denial of a 60(b) motion, the appellate court’s function generally “is not to determine whether the court was substantively correct in entering the judgment from which relief is sought but is limited to deciding whether the judge abused his discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not shown in a timely manner.” Brennan v. Midwestern United Life Insurance Company, 450 F.2d 999, 1003 (7th Cir. 1971), cert. denied, 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 (1972).
The sum of Jafree’s 60(b) motions is that he relies on subdivisions (1), (4), and (6) of that rule. On the facts of the present case we are not persuaded that the district court abused its discretion in denying the motions. The motion under subdivision (1) on the ground of excusable neglect did not show grounds for vacating the order of dismissal, which as we have said was not an abuse of discretion when entered. Judge Decker, following the implicit direction of this court in its prior order for “further exploration via summary judgment procedure,” had ordered Jafree to file an affidavit with regard to alleged stigmatory statements directed at him. Jafree had been granted several extensions of time and had failed to file an adequate affidavit. As the judge noted, the fact that Jafree was in England does not excuse his neglect inasmuch as his attorney was here in Chicago and could have sought another extension if communication with the client was difficult.
As already indicated herein, there is no basis for claiming a void judgment under subdivision (4). As to subdivision (6), the conclusory generalized statements regarding corruption, or collusion, or fraud by his former attorney in failing to file the necessary affidavit is insufficient in our opinion for us to say that the court abused its discretion.
Finding that there was no abuse of discretion, the orders of the district court in denying the Rule 60(b) motions and the judgment at which the motions were directed are affirmed.
AFFIRMED.
No. 76-2220 — ADDENDUM
General conclusory claims of violations of constitutional rights
“So much blood of Assistant Attorney General Syed M.J. Iqbal Jafree (Appellant) has been washed underneath the bridges and down the sewage of jurisprudence in the State of Illinois during the Era of NiXXonites [sic] that no amount of recounting would do sufficient justice.”
“[E]ach page of this avant-garde brief incorporates by reference as part and parcel of this brief all that has been said before, and does not exclude the cries of three little children (Jafree’s) whose American dreams have been systemically [sic] BUTCHERED (the Honorable Oriental means it, very seriously!).”'
“Plaintiff has suffered horrendous pain and mental anguish and has been irreparably injured in his profession and community esteem. Every day fresh, new, unique and distinct causes of action have arisen in favor of the plaintiff and against the Defendant.”
“Plaintiff’s family has languished in hopelessness and poverty and without adequate medical care or economic resources. Plaintiff and his family had to live in poverty housing (they have the dignity of not going on public welfare) at a time when an avalanche of rash claims are being made about the keen demand of and for minority lawyers.”
Claims concerning district court — Judge Bauer
“Judge Bauer (since elevated) dismissed the lawsuit 73C2447 and in his amazing Memorandum Opinion steered clear of the primal issue . . . . Judge Bauer chose to invent his own facts.”
“Judge Bauer went deeply into obiter dicta,
“THIS matter which has taken some 6 years (because Judges Bauer or Decker had no intention of doing justice) . . . .”
Claims concerning district court — Judge Decker
“From London Jafree used to telephone every 10-14 days, sometime [sic] twice a week to his lawyers; he was told that everything was under control; . that they were expediting as much as they could but Judge Decker (a personal friend of Scott) was ‘foot-dragging’.”
“THIS matter which has taken 6 years (because Judges Bauer or Decker had no intention of doing justice) . . . .”
Claims concerning William Scott and other defendants
“Scott also claimed that Jafree is mentally ill, and a homosexual.”
“Scott has also falsely accused Jafree of dishonesty, immorality, incompetence and other perversions which from Scott’s mouth are particularly damaging. When a crook calls a noncrook a crook, it is more than crooked.”
“Scott has used two hatchetmen to tout that Jafree is not a lawyer.”
“Scott has dismissed former Chief of Opinions, defenant-appellee [sic]: Calvin Bostian (Jafree has predicted this in 1973, 1974 that Scott will throw Bostian out of the window, after he is of no use, like a used candom).” [Sic]
“Scott has electronically harassed Jafree and claims that judges are under his thumb and Jafree has as much chance of receiving justice in Illinois as a ‘snowflake in hell.’ ”
“Scott’s bossom [sic] friend Nettles used to refer to all minorities including white jews, openly, as “Niggers” and kept a diary of the number of niggers visiting the Office in Springfield; [sic] . . . .”
“Scott merely pulled the wool over the eyes of the courts by artfully interjectiung-ting [sic] extraneous matters.”
“Maybe Scott stole this letter afterwards to seek to legitimitize [sic] his earlier criminal activities.”
“May be [sic] Scott wants to hide the fact that almighty William Scott is morally as well as mentally handicapped.”
“In this case Scott’s stigmatory letter was published worldwide by Scott.”
“To Scott, every foreign-born person is lacking in clarity or hard of hearing. Sad!”
“It seems to me that the only creditable statement he [Scott] has made is that judges in Illinois are under his thumb: I have steadfastly refused to believe it.”
“Defendant Scott,, not satisfied with the above, has himself unleashed or caused to be unleashed unsurpassed venom, slanders and stigmas against the Plaintiff who has had no opportunity to defend himself against such slurs, innuendos and miscellaneous skunk systems.”
“Defendant’s Game Plan has been to destroy Plaintiff’s credibility, to tarnish Plaintiff’s public image and to alienate everybody against and isolate the Plaintiff.” “Defendant Scott has invaded the Privacy of Plaintiff Jafree through unconstitutional, civil and unfair means and in various manners by harassing his family, obstructing and tampering with Plaintiff’s mail himself or through his agents, associates, servants and other relations. Defendant further, through harassment tactics drove the family of the plaintiff out of Springfield . .
“Jafree was stigmatized by Defendant Scott’s favourite clerk Nettles on 6 July 73 and by Scott’s faithful servant Bostian on or about 16 July 73 (when Bostian tried to blackmail Jafree) and was further Stigmatized by Scott on 27 July 1973; by O’rourke and verbally by other servants, commissars and hatchetmen of Scott. This Stigmatization has flourished and has been accelerated everyday since 6 July 1973.
“Scott’s agents have telephoned every major corporation and have even tried to buy dirt on Jafree in Pakistan. Filthier language, dirtier tricks and greater clout has been used than in Watergate . . . .”
Claims concerning his own attorneys
“[Ujnder some pre-arrangement with defendants. Jafree’s Union-supplied lawyers unilaterally abondoned [sic] the lawsuit
“It has turned out that Gilbert Cornfield used this case (an ideal lawsuit) as a “guinea pig” for imparting federal litigation experience to his novice assistant Jacob Pomeranz. There have been so many unethical practices and so much conduct unbecoming attorneys by these two (and their law firm) that this matter was referred to the Attorney Registration and Disciplinary Commission by Jafree last, year and is yet to be investigated.”
“Incidentally, Cornfield completely rewrote the Petition that was drafted by Jafree. There is evidence of collusion from the beginning.”
“In all probability Cornfield designed this affidavit, in arrangement with Scott.”
Self-encomiums
“Jafree was told that he could soon become the first Asian United States District Court Judge in the continental USA.”
“Jafree has applied for the next United States District Judgeship in Chicago and will sue if Carter appoints a lesser lawyer or man . . ..”
“And I will win [nobody can outclass me as a civil rights lawyer].”
“It should have done justice that it would expect, had Jafree been the judge (indeed, he is fully qualified).”
Other litigation and claims
The record brought to this court by Jafree reflects that he is no stranger to finding appropriate words to claim a discriminatory discharge. Thus we note a thirteen page pro se petition (single spaced on legal size paper) filed on December 17, 1971, in the United States District Court for the Eastern District of Washington against the President of Central Washington State College, seeking a temporary injunction, declaratory judgment, “and other proper redress” in which the following allegations are noted:
“Mr. John D. Green, as I were to learn later on, wrote dozens of defamatory and suggestive letters. One example EXH E.l. is enclosed; others will be presented later and some may have to be subpoenaed from different sources. The idea of such letters was to condemn me professionally and to have me deported. Only God knows how many letters were written, using the resources of the State of Washington. I lost several job offers elsewhere. The idea was not simply to oust me but to disgrace and defame me internationally and so severely that I would “voluntarily” bow out both out of the College as well as life. I have learnt [sic] a scheme was hatched to completely and I mean thoroughly “destroy” me. . It was calculated, I learnt [sic] later, that I would stampede and commit suicide. . This was a plot to destroy a man through slurrs, [sic] innuendoes, gossipmongering and words of mouth and it was brilliantly accomplished.”
“Prior to my departure, a series of incidents of criminal nature occured [sic], my painting was stolen; several of my works were vandalized; threats to my life were made by Mr. Papadopoulos threatened to kill me and my wife if we remain in Ellensburg; notices: “Jafree Go Back to Hell” and saying other sickening things went up; threatening and obscene calls were made. I reported these incidents to CWSC Security Police (they, I am told have full Police powers), no action was taken. It was a grand conspiracy to completely annihilate me through innuendoes and threats.”
“Furthermore my mail was intercepted, censored, damaged and stolen. Several letters never reached me. Mr. Steven D. Mi-lam put a notice on my Office door forbidding entry, presumably me and my lock was changed in my absence without informing or getting my permission. My June, 1971 salary was withheld and arbitrary deductions made (in an effort to louse up and destroy my credit).”
“I rushed to Ellensburg, as I foresaw the destruction of my American dream.”
“Messrs James Brooks, Steven D. Milam, Edward Harrington, John A. Green, Stephen Bayless, William Dunning and C. Papadopoulos, all members of the CWSC faculty and employees of the State of Washington have done such a comprehensive job of maligning and ruining my reputation so completely locally that no one finds it easy to be of help, even on the grounds that CWSC officials have denied my civil rights within the meaning of 42 U.S.A. Code 1983, 85 and 86 [U.S.C.A. §§ 1983, 1985, 1986]. Grave and gross uncivil liberties have been taken to inhumanely abuse my very humanity. I have experience of law practice in Pakistan, if something like this had happened there, local bar would have defended the accused, so outrageously denied all notions of suggestions of justice, fairness and civil rights . . . . Indeed Messrs James Brooks, Stephen Bayless and Christos Papadopoulos have threatened to kill me and I dont [sic] doubt it very much.”
“My resources are barely enough to manage to survive. My wife is pregnant and has been ill. My health is such that I cannot take long distance travelling as my internal bleeding, under physical strain, becomes very intensified. My health has gone bad ever since the harassment at CWSC started. It seems to me CWSC administration feels that they have a carte blanche to abuse my humanity, to infringe upon my property and possessions.”
* * *
When this case was previously before this court we denied the motion of the defendants to supplement their brief “by listing some sixty separate discrimination claims filed by Jafree throughout the United States against some 43 companies or institutions who apparently mostly were employers. The period of this activity ranged from the late 1960’s to [1975] This data was not part of the record in the district court a ,
This tabulation is now a part of the record in the present appeal.
. Appeal No. 76-2220 was instituted by a notice of appeal filed June 9, 1976. The scope of this appeal is discussed hereinafter. Appeal No. 78-1103 was instituted by a notice of appeal filed January 11, 1978, and was directed at the denial of Jafree’s Rule 60(b) motion by order entered in the action on December 15, 1977, formally entered on December 19, 1977.
. The initial judgment of the district court is reported at Jafree v. Scott, 372 F.Supp. 264 (N.D.Ill.1974). The decision of this court was an unreported order in Appeal No. 74-1295.
. In the voluminous file that has accumulated in this court in appeal No. 76-2220 alone, we do note a question having been raised as to whether the dismissal of March 30, 1976, was a final judgment. This matter was settled by this court’s order of December 2, 1977.
For a recent general discussion of the interrelationship between Rule 60(b) motions, judgments, and other post judgment motions, see Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 263 n.7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978).
. We have accepted for the present purpose Jafree’s contention that the interrogatories were not answered, which the defendants denied’at oral argument, the record brought to us by appellant being not as complete as it should be.
. A sample, and only that, to which we refer is appended to this opinion as an addendum by categories.
. This court also observed in Brennan that notwithstanding that the finality of judgments ought not to be disturbed except on very narrow grounds, the rule should have a sufficiently liberal construction that judgments which are void or are vehicles of injustice not be left standing. Id. On the entire record in this case, we do not regard the judgment as being such a vehicle and it certainly is not void. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
1
] | songer_typeiss |
UNITED STATES of America, Plaintiff-Appellee, v. Dario DICESARE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kathleen FLANNERY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose MARIN, Defendant-Appellant.
Nos. 84-5013, 84-5021 and 84-5056.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 8, 1985.
Decided July 10, 1985.
Reinhardt, Circuit Judge, filed concurring opinion.
Christine W.S. Byrd, Los Angeles, Cal., for plaintiff-appellee.
Stanley I. Greenberg, Los Angeles, Cal., Manuel Araujo, Santa Ana, Cal., for defendant-appellant.
Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges.
WALLACE, Circuit Judge:
DiCesare and Flannery appeal their convictions entered after conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Marin appeals his conviction after a jury trial. We have jurisdiction under 28 U.S.C. § 1291. We affirm DiCesare’s conviction, but vacate Flannery’s conviction and remand for an evidentiary hearing. We vacate Marin’s conviction and remand for a new trial.
I
In January 1983, the government began investigating DiCesare after he and his wife insisted on depositing large amounts of cash in the First Los Angeles bank without filing the currency transaction reports required by 31 C.F.R. §§ 103.22, 103.25 (1984). On July 25, 1983, Glendale police seized approximately 33 pounds of cocaine at a hotel room in Glendale. DiCesare arrived at the hotel room and provided inconsistent explanations of his presence to the police. He was arrested, but later released.
A team of law enforcement officers from the United States Customs Service, and the Los Angeles and Glendale police departments began a surveillance of DiCesare. During late August, this surveillance revealed meetings and rendezvous between DiCesare and codefendant Marin under secretive and suspicious circumstances. The police observed DiCesare and Flannery drive in DiCesare’s automobile to the home of a suspected drug trafficker. Upon their return to Flannery’s apartment, DiCesare switched vehicles to Flannery’s BMW and returned to his apartment in Marina del Rey. Later, DiCesare placed a suitcase in the BMW’s trunk. The officers requested a narcotics canine, which “alerted” to the presence of narcotics in the trunk.
On the basis of these observations, Special Agent Rodriguez, a customs officer who had participated in the surveillance, obtained a search warrant for DiCesare’s and Flannery’s apartments from a Glendale municipal court judge. The search of DiCesare’s apartment revealed large quantities of cash, cocaine, other narcotics trafficking paraphernalia, and several envelopes containing large amounts of currency addressed to an attorney. The BMW also was searched, and the suitcase in the trunk contained six pounds of cocaine and a balance scale. Both DiCesare and Marin were arrested in DiCesare’s apartment. When the officers searched Flannery’s apartment, they found cocaine, paraphernalia and cocaine trafficking notations. Flan-nery also was arrested.
When Marin was arrested, he had a small child with him. The officers took custody of the child, and then drove to Marin’s apartment in an attempt to locate the child’s mother. Outside Marin’s apartment, the officers stopped Liguori, DiCe-sare’s secretary, and searched her purse. It contained an envelope addressed to the same attorney as the envelope containing currency that had been found in DiCesare’s apartment. The envelope found in Liguo-ri’s purse contained $9,700 in cash. The officers arrested Liguori. A later inventory search of the purse revealed cocaine and a rental receipt for Marin’s apartment.
At Marin’s apartment, the officers met several Spanish-speaking occupants. Although it is not clear whether the officers received permission to enter or whether the occupants understood why the officers were present, the officers entered the apartment with the avowed purpose of returning the child. Once in the apartment, the officers observed the following items in plain view: a utility bill with DiCesare’s name on it, a note pad containing figures that, in the officers’ opinions, were consistent with cocaine trafficking, and a large green suitcase. The officers first secured the apartment, and then requested a narcotics canine. When the dog arrived, it entered the apartment and alerted to the suitcase. Two hours after their initial entry, the officers decided to obtain a search warrant, and detained the occupants for several hours while awaiting the warrant. The search revealed $2,000 in cash next to an envelope addressed to the same attorney as the envelopes found in DiCesare’s apartment and Liguori’s purse. The search of the suitcase revealed no contraband.
DiCesare, his wife Beatrice, Flannery, Marin, and Liguori were indicted for a conspiracy in violation of 21 U.S.C. § 846 (count one: conspiracy to possess or distribute cocaine). In addition, Flannery and the DiCesares were indicted for the following violations: 21 U.S.C. § 841(a)(1) (possession of cocaine with intent to distribute) (count four: DiCesare and Flannery; count two: DiCesare alone); 18 U.S.C. § 924(c) (count three: carrying a firearm during a felony) (DiCesare alone); 26 U.S.C. § 5861(h) (count five: possessing a firearm with an obliterated serial number) (DiCe-sare alone); 18 U.S.C. § 371 and 31 U.S.C. §§ 5313, 5322 (count six: conspiracy of and a willful failure to report a domestic currency transaction) (both DiCesares). The firearm serial violation was later dismissed. Beatrice DiCesare entered a guilty plea, while Liguori’s charges were dismissed after she cooperated; neither is a party to this appeal. Both DiCesare and Flannery entered conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Pursuant to the plea agreement, counts two and three were dismissed against DiCesare at the time of sentencing, and count four was dismissed against Flannery. Marin entered a plea of not guilty, and was convicted by a jury on count one.
II
We first address the issues raised by DiCesare and Flannery, who joined in the motions of her co-defendants.
A.
DiCesare and Flannery contend that the district court erred by denying their motions for hearings required by Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (Franks). There are five requirements for a sufficient motion for a Franks hearing: (1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1983) (Kiser).
We review the denial of a Franks hearing de novo. See, e.g., United States v. Ritter, 752 F.2d 435, 439 (9th Cir.1985). DiCesare argues that five statements or omissions in Rodriguez’s affidavit warranted a hearing: (1) he used information from a search that was quashed three years previously; (2) he referred to an earlier arrest but failed to relate that the state subsequently declined to prosecute; (3) he advised the magistrate that the apartment trash revealed evidence of narcotics transactions when the trash could have been commingled; (4) he failed to disclose the unreliability of the canine; and (5) he misrepresented that DiCesare was using an alias.
An examination of DiCesare’s moving papers reveals only two allegations that arguably suffice to show an intentional or reckless omission or misstatement by Rodriguez: (1) the inclusion of the results from a three year old search, and (2) whether the trash could have been examined since it was deposited in a large common container. Thus, the remaining three statements fail to qualify. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684; Kiser, 716 F.2d at 1271. There was no error in the denial of a hearing on those two statements, however, because a hearing is required only if the challenged information is necessary to find probable cause. See id. Even without these statements in the affidavit, we conclude that the other allegations in the affidavit supported a finding of probable cause. Therefore, we affirm the district court’s denial of DiCesare’s and Flannery’s motion for a Franks hearing.
B.
Both DiCesare and Flannery argue that the district court erroneously denied their motions for other evidentiary hearings. We review the denial of an evidentia-ry hearing for an abuse of discretion. See United States v. Santora, 600 F.2d 1317, 1320 (9th Cir.), amended on other grounds, 609 F.2d 433 (1979) (order).
Flannery argues that the disputed facts surrounding the execution of the search warrant at her apartment on August 26 and a second entry on September 14 require an evidentiary hearing. On August 26, the officers executed the search warrant for Flannery’s and DiCesare’s apartments. When they arrived at Flannery’s apartment, the main door was open, but the screen door was closed and locked. In Flannery’s declaration, she stated that the officers forcibly entered and announced simultaneously, and that “[pjrior to breaking open the door, none of the officers knocked, announced their identity, or stated the purpose of their presence.” Upon entry, Flannery stated that she was assaulted and verbally abused. The officer declared, however, that he saw Flannery speaking on the telephone and announced the presence of the police. He stated that Flannery became hysterical, dropped the telephone, and turned as if to flee. He then forcibly entered to prevent possible destruction of evidence. He flatly denied the occurrence of an assault and verbal abuse. Flannery introduced photographic exhibits supporting her version of the entry, and a supporting declaration of her sister to whom she was speaking at the time of the entry. Flannery’s sister declared that she heard the sound of entry, an announcement, and then obscenities and statements indicating a beating was taking place.
Flannery asserts that the officers violated 18 U.S.C. § 3109, the “knock and announce” statute. If the officers did violate the statute, the evidence seized during the search must be suppressed. See Miller v. United States, 357 U.S. 301, 313-14, 78 S.Ct. 1190, 1197-98, 2 L.Ed.2d 1332 (1958). The sworn statements and exhibits present directly contradictory accounts of the sequence of events, and thus whether the officers complied with the statute. We conclude that Flannery made an offer of proof “sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Ledesma, 499 F.2d 36, 39 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). Thus, an evidentiary hearing was required. See id. Moreover, this error was not harmless, because the search uncovered cocaine, paraphernalia, and papers suggestive of narcotics trafficking. We conclude that the district court abused its discretion by denying an evidentiary hearing on the August entry.
On September 14, the officers returned to Flannery's apartment with an arrest warrant. There is no dispute that her outside door was open, and that the inner screen door was closed but unlocked. When the officers arrived, they observed guests seated at a dining table, but did not see Flannery. According to Flannery, the officers merely entered and apprehended her without knocking or announcing their identity and purpose. According to the officers, they asked for Flannery, announced their identity and when Flannery entered the room, then entered to arrest her. Once again, the affidavits present contradictory reports of these events. Although section 3109 by its terms applies only to search warrants, the Supreme Court has held that the same criteria apply to arrests. See Miller, 357 U.S. at 306, 78 S.Ct. at 1194. If the officers failed to announce their identity and purpose or simultaneously did so and entered, they violated the section 3109 criteria. See United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Such a violation would not be harmless, because the incident search revealed additional tangible evidence.
We conclude that the affidavits establish a sufficiently definite offer of proof to require a hearing on the September entry and that the district court abused its discretion by denying the hearing. Ledesma, 499 F.2d at 39.
Both DiCesare and Flannery also appeal the denial of evidentiary hearings on whether the search of their apartment exceeded the scope of the warrant. We conclude that the district court did not abuse its discretion. Such a hearing is required only when there is a dispute concerning issues of fact relevant to the legality of the search. Id. See also United States v. Hickock, 481 F.2d 377, 379 (9th Cir.1973) (denial of an evidentiary hearing on a motion to suppress is not error when the movant presents no factual issues). In this case, DiCesare and Flannery do not contest the inventory of items obtained pursuant to the search. Thus, there were no facts in dispute relating to the scope of the search and we are unable to conclude that the district court abused its discretion by denying the request for a hearing. See, e.g., id.
DiCesare challenges the denial of an evidentiary hearing on the search of his secretary Liguori’s handbag. DiCesare, however, has no standing to challenge that search. For standing purposes, the only connection between DiCesare and Liguori was their joint criminal venture. We have rejected standing on that basis alone. See United States v. Mendia, 731 F.2d 1412, 1414 (9th Cir.), cert. denied, — U.S.-, 105 S.Ct. 509, 83 L.Ed.2d 399 (1984).
C.
Flannery argues that the search warrant for her apartment was unsupported by probable cause. We review the magistrate’s determination of probable cause under the “substantial basis” standard. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984). The affidavit presented the magistrate with three factual situations: (1) several meetings during a three-day period with DiCesare, including one on a boat during which the participants appeared to be using cocaine; (2) Flannery and DiCesare drove together to the home of a suspected narcotics trafficker and switched vehicles upon their return; and (3) a narcotics canine alerted to a suitcase DiCesare placed in the trunk of Flannery’s BMW. The canine’s sniff of the trunk was not a “search” requiring probable cause. See, e.g., United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983); United States v. Beale, 736 F.2d 1289, 1291-92 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). We conclude that under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to search Flannery’s car and her apartment.
D.
DiCesare and Flannery assert that Rodriguez, as a Customs officer, lacked authority to obtain a state search warrant. They argue that both rule 41(a), Fed.R. Crim.P., and 26 U.S.C. § 7607(1) prohibit Rodriguez from executing a state search warrant. We need not decide this issue, because even if they 'are correct, suppression would not be required. Both state and federal officers participated in the investigation and executed the warrant; had it been a state officer rather than Rodriguez who had done so, its validity would not be in question. Therefore, if a defect existed, it was merely a technical defect, and did not implicate any constitutional violations. See, e.g., United States v. Payner, 447 U.S. 727, 731-33, 100 S.Ct. 2439, 2444-45, 65 L.Ed.2d 468 (1980) (evidence should not be suppressed unless the defendant’s constitutional rights are violated). Since the warrant was supported by probable cause and was not executed improperly, no circumstances are present that warrant suppression. See, e.g., United States v. Harrington, 681 F.2d 612, 614-15 (9th Cir.1982); United States v. Pennington, 635 F.2d 1387, 1390 (10th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).
E.
DiCesare and Flannery argue that the Customs Service narcotics canine training manual should have been disclosed, because it provided information to attack the reasonableness of relying on responses of the dogs. Federal regulations prohibit disclosure “to the extent that [it] would ... [d]isclose investigative techniques and procedures.” 19 C.F.R. § 103.12(g)(5) (1984). DiCesare and Flannery argue that disclosure was proper because the government's papers filed in opposition were not proper and because the manual contained portions that, if disclosed, would not compromise investigative techniques. The district court reviewed the manual in camera and determined that disclosure of chapters three through five of the manual would involve such a compromise, and declined to order discovery. Even if the district court erred, however, we conclude that any error was harmless because DiCesare and Flannery were provided with the most critical information: the actual training records of the dogs used in the searches, and chapters one and two of the manual on dog training.
F.
DiCesare and Flannery argue that the indictment was insufficiently specific, thereby necessitating a bill of particulars. A bill of particulars is appropriate when the indictment is insufficient to per- . mit the preparation of an adequate defense. See Fed.R.Crim.P. 7(f); see, e.g., United States v. Inryco, Inc., 642 F.2d 290, 295 (9th Cir.1981), cert. dismissed, 454 U.S. 1167, 102 S.Ct. 1045, 71 L.Ed.2d 324 (1982). DiCesare and Flannery requested a bill for three reasons: (1) to obtain the names of any unknown coconspirators; (2) to determine the exact date on which the conspiracy allegedly began; and (3) to delineate all other overt acts that comprised the charged activity. These reasons, however, do not warrant a bill of particulars. See, e.g., United States v. Long, 449 F.2d 288, 294-95 (8th Cir. 1971) (exact times), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972); Wilkins v. United States, 376 F.2d 552, 562-63 (5th Cir.) (names of all coconspirators), cert. denied, 389 U.S. 964, 88 S.Ct. 342, 19 L.Ed.2d 379 (1967); Cook v. United States, 354 F.2d 529, 531 (9th Cir.1965) (all overt acts). Moreover, neither DiCesare nor Flannery specified any prejudice or surprise resulting from the denial of the bill. See, e.g., United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979); United States v. Cooper, 577 F.2d 1079, 1089 (6th Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978). The district court’s denial of the motion was not an abuse of discretion.
G.
Both DiCesare and Flannery moved for a severance under rule 14, Fed. R.Crim.P., because they wished to testify on one count but not on all counts. To justify severance on this ground, a defendant “must show that he has important testimony to give on some counts and a strong need to refrain from testifying on those he wants severed.” United States v. Nolan, 700 F.2d 479, 483 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). Neither DiCesare nor Flannery made any such showing in their moving papers, and each failed to list “the specific testimony he will present about one offense, and his specific reasons for not testifying about others.” United States v. Bronco, 597 F.2d 1300, 1303 (9th Cir.1979) (Bronco).
Flannery also requested severance because she was not charged on several counts and feared prejudice from testimony relating to those offenses. Separate offenses, however, may be tried together if a conspiracy existed that links them together. See, e.g., United States v. Abushi, 682 F.2d 1289,1296-97 (9th Cir.1982). The conspiracy charged in count one was sufficient to link all the offenses. Moreover, Flannery’s allegations of prejudice are insufficient. The policy in favor of joint trials outweighs the prejudicial impact of testimony about other offenses unless the right to a fair trial is abridged. See, e.g., United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980); Bronco, 597 F.2d at 1303. Flannery makes no such allegation in her moving papers. Thus, the denial of the severance motions was not an abuse of discretion.
Ill
We need discuss only three of the issues raised by Marin.
A.
Marin asserts that the evidence obtained during the search of his apartment must be suppressed. We agree. The following factual sequence is undisputed. The officers arrived at Marin’s apartment with the child, sought permission to enter, and then entered, perhaps even with permission. Once inside the apartment, the officers observed a utility bill with DiCesare’s name on it, and a note pad containing figures consistent with cocaine trafficking. At this point, the officers secured the premises, questioned the occupants and called for a narcotics canine. Upon arrival, the dog alerted to a green suitcase in Marin’s living room. Based on this information, the officers sought a search warrant and executed it some six hours after the initial entry, during which time the occupants were detained.
In Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Supreme Court observed that “[different interests are implicated by a seizure than by a search. A seizure affects only the person’s possessory interests; a search affects a person’s privacy interests.” Id., 104 S.Ct. at 3387 (citations omitted). The Court then upheld the seizure of a dwelling prior to the execution of a warrant because the agents had probable cause unconnected with the seizure. Id. at 3389. Although the Court pointed to two instances in which seizures of property have been permitted on less than probable cause, see id. at 3387 n. 6 (postal packages and suitcases at airports), the Court made it clear that probable cause is necessary to seize a private home. See id. at 3387-91.
The seizure of Marin’s apartment was completed before the narcotics canine arrived; the occupants already had been detained, and additional officers had arrived. Assuming a valid entry, when the seizure occurred the officers had observed only two plausible pieces of evidence in plain view — the utility bill and the note pad. We conclude that under the totality of the circumstances, these items fail to provide the probable cause necessary to seize or search the apartment. See Segura, 104 S.Ct. at 3386-87 (using the “totality of the circumstances” test).
The government argues, however, that the warrant should be upheld because the dog was merely another police officer, its entry was therefore lawful and not an incremental intrusion on Marin’s privacy or possessory interests, and its sniff of the green suitcase was not a search. We need not decide whether the dog’s entry should be treated like that of any police officer or whether the sniff of a suitcase in a private home is a search. Cf. United States v. Place, 462 U.S. at 707, 103 S.Ct. at 2644 (sniff of a suitcase in a public place is not a search). These issues are irrelevant in this case. Even if the dog’s entry and subsequent sniff were lawful, the acquisition of probable cause during an unlawful seizure does not cure the illegality and does not constitute an independent source of probable cause. See United States v. Taheri, 648 F.2d 598, 600-01 (9th Cir.1981). The use of the canine was a direct and proximate result of the illegal seizure. But for the seizure, the officers would not have requested the dog, and but for the alert, probable cause did not exist to search the apartment. See Segura, 104 S.Ct. at 3391-92. If we upheld the admissibility of this evidence, we would encourage police to seize private dwellings without probable cause, then to bring in trained dogs to locate contraband in order to obtain the probable cause necessary for a warrant. Officers cannot seize a dwelling to find probable cause — first they must have probable cause to seize a dwelling. See id. at 3390-91.
Finally, we conclude that the failure to suppress was not harmless beyond a reasonable doubt. The police uncovered $2,000 in cash next to an envelope identical to the envelopes found in DiCesare’s apartment and Liguori’s purse, with the name of the same attorney written on it. This is significantly probative evidence of Marin’s membership in the conspiracy, the only offense for which he was charged. Therefore, we hold that the district court erroneously failed to suppress this evidence and that Marin is entitled to a new trial without the admission of the evidence seized at his apartment.
B.
Marin also argues that the district court erred by denying his motion to strike evidence admitted against him from the Glendale seizure on July 25,1983, involving DiCesare. On that date, officers seized approximately 33 pounds of cocaine and other items. Marin argues that it was error to deny the motion because insufficient evidence connected him to the events of July 26. We review this issue for an abuse of discretion. Cf. United States v. Ordonez, 737 F.2d 793, 811 (9th Cir.1984) (evidentiary rulings in general).
The seizure of July 25 and the surrounding events were among the overt acts in the conspiracy indictment against Marin. The existence of separate conspiracies is a question of fact, not of law, to be determined by the jury. See, e.g., United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). A defendant need not participate in all phases of a conspiracy to be part of a single conspiracy. See, e.g., United States v. Burreson, 643 F.2d 1344, 1348 (9th Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106 (1981).
The district court instructed the jury to acquit if they found that Marin was a member of an uncharged conspiracy. Marin did not object to this instruction, although he now argues that it was an inadequate multiple conspiracy instruction. A proper instruction would cure an erroneous denial of the motion to strike. Since Marin did not object, however, we can reverse only if the instruction was plainly erroneous. See, e.g., United States v. Hall, 650 F.2d 994, 998 (9th Cir.1981) (per curiam); Fed.R.Crim.P. 52(b).
Even if the government failed to show a connection between Marin and the conspiracy on July 25, Marin is not absolved of liability. “[A] conspirator who joins a pre-existing conspiracy is bound by all that has gone on before in the conspiracy.” United States v. Saavedra, 684 F.2d 1293, 1301 (9th Cir.1982). If sufficient evidence supports Marin’s joinder in the conspiracy, and the conspiracy included the July 25 events, then the evidence properly may be used against him. Since we are remanding for a new trial, we need not decide the factual question now. We conclude, however, that the district court did not abuse its discretion by denying the motion to strike, and that the curative jury instruction was not plainly erroneous.
C.
Our decision to vacate Marin’s conviction does not relieve us of the responsibility to address Marin’s argument that the evidence was insufficient because if he is correct, his retrial would be barred by the double jeopardy clause. See, e.g., United States v. Bibbero, 749 F.2d 581, 585-86 (9th Cir.1984) (Bibbero); United States v. Harmon, 632 F.2d 812, 814 (9th Cir.1980) (per curiam) (Harmon). See also Tibbs v. Florida, 457 U.S. 31, 40-42, 102 S.Ct. 2211, 2217-18, 72 L.Ed.2d 652 (1982). In our review, however, we must consider all the evidence admitted at trial, including illegally obtained evidence, because “[i]t is impossible to know what additional evidence the government might have produced had the faulty evidence been excluded at trial, or what theory the government might have pursued had the evidence before the jury been different.” Harmon, 632 F.2d at 814; see Bibbero, 749 F.2d at 586 n. 3.
Our review of the evidence in the light most favorable to the government convinces us that a rational trier of fact could have found the elements of a conspiracy beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984). Marin assisted DiCesare in counting large sums of cash. He and DiCesare met with couriers at the airport. They met several times under suspicious circumstances and with secretive precautions. Identical envelopes bearing the same attorney’s name were found in both Marin’s and DiCesare’s apartments. DiCe-sare maintained Marin’s apartment and DiCesare was involved in cocaine trafficking.
We need not address Marin’s other arguments since the illegal seizure of his apartment requires a new trial.
We affirm DiCesare’s conviction, vacate Marin’s conviction and remand for a new trial, and vacate Flannery’s conviction and remand for an evidentiary hearing on whether the officers complied with the knock and announce statute during both the August and September entries. Since we find no merit to any of Flannery’s other assigned errors, if the district court finds after a hearing that the officers complied with the statute or that their compliance was excused, the district court may re-enter her conviction.
No. 84-5013: AFFIRMED.
No. 84-5021: VACATED AND REMANDED.
No. 84-5056: VACATED AND REMANDED.
. The concurrence suggests that dogs cannot be used to search private homes without the consent of the occupants, even if probable cause exists. It also suggests that, unless such consent is obtained, the use of dogs will be a barbaric procedure reminiscent of Nazi Germany and the pre-Civil War South. The standard proposed, consent in addition to probable cause, is a much higher standard than that of the fourth amendment, in which we may rely solely on probable cause.
No court that has considered the use of canines has suggested that their use is subject to any standard other than probable cause or one of its exceptions. See, e.g., United States v. Place, 462 U.S. at 701-07, 103 S.Ct. at 2641-44; United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir.1985) (recognizing that a dog sniff of the exterior of a dwelling is more intrusive than the search of luggage at an airport, thus requiring probable cause); United States v. Beale, 736 F.2d 1289, 1290-92 (9th Cir.) (en banc) (discussing whether a particular dog sniff is a search subject to the fourth amendment), cert. denied, — U.S.-, 105 S.Ct. 565, 83 L.Ed.2d 565 (1984).
Since the seizure of Marin’s apartment took place without probable cause, we do not need to decide whether the use of the dog required something more than probable cause. Nor do we believe that it is appropriate to reach out to do so. We leave for another case whether a dog that may sniff a suitcase in an airport without probable cause, and sniff the exterior of a dwelling pursuant to a valid warrant, may cross the threshold of a home if the officers accompanying it have probable cause. | What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. | What is the nature of the proceeding in the court of appeals for this case? | [
"decided by panel for first time (no indication of re-hearing or remand)",
"decided by panel after re-hearing (second time this case has been heard by this same panel)",
"decided by panel after remand from Supreme Court",
"decided by court en banc, after single panel decision",
"decided by court en banc, after multiple panel decisions",
"decided by court en banc, no prior panel decisions",
"decided by panel after remand to lower court",
"other",
"not ascertained"
] | [
0
] | songer_method |
LEISHMAN v. ASSOCIATED WHOLESALE ELECTRIC CO.
No. 9970.
Circuit Court of Appeals, Ninth Circuit.
May 26, 1942.
Rehearing Denied July 25, 1942.
See also, D.C., 36 F.Supp. 804.
John Flam, of Los Angeles, Cal., for appellant.
Gibson Yungblut, of Cincinnati, Ohio, and Leonard S. Lyon, of Los Angeles, Cal., for appellee.
Before MATHEWS, HANEY, and STEPHENS, Circuit Judges.
MATHEWS, Circuit Judge.
Appellant brought an action against ap-pellee for infringement of a patent. Ap-pellee answered, trial was had, findings of fact and conclusions of law were made and filed, and judgment was entered dismissing the action. From that judgment this appeal is prosecuted.
The question is whether we have jurisdiction of the appeal. Though not raised by the parties, the question is here and has to be decided. City and County of San Francisco v. McLaughlin, 9 Cir., 9 F.2d 390; Credit Bureau of San Diego v. Petrasich, 9 Cir., 97 F.2d 65, 67; Crockett v. United States, 9 Cir., 125 F.2d 547, 549.
Section 8(c) of the Act of February 13, 1925, c. 229, 43 Stat. 940, 28 U.S. C.A. § 230, provides: “No writ of error or appeal intended to bring any judgment or dncree before a circuit court of appeals for review shall be allowed unless application therefor be duly made within three months after the entry of such judgment or decree.” With respect to appeals from judgments in civil actions, rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, provides: ■“When an appeal is permitted by law from a district court to a circuit court of appeals and within the time prescribed, a party may appeal from a judgment by filing with the district court a notice of appeal.” The time referred to in rule 73(a) is that prescribed in § 8(c), namely, three months .after entry of judgment.
The judgment in this case was entered ■on May 1, 1941. Notice of appeal was filed on September 4, 1941 — four months and three days after entry of judgment. We •called this to counsel’s attention and permitted briefs to be filed on the question of the timeliness of the appeal.
Appellant, in his brief, invokes the rule that, where a petition for a rehearing, a motion for a new trial or a motion to vacate, amend or modify a judgment is seasonably made and is entertained, the time for appeal does not begin to run until the motion is disposed of. This rule, however, avails appellant nothing; for, in this case, there was no petition for a rehearing, no motion for a new trial, no motion to vacate, amend or modify the judgment.
On May 28, 1941 — 27 days after entry of judgment — appellant moved the court to amend and supplement its findings and conclusions. The motion was denied on June 9, 1941. Appellant would have us treat the motion as a petition for a rehearing, a motion for a new trial or a motion to vacate, amend or modify the judgment, and so would have us hold that the time for appeal did not begin to run until the motion was denied. This we cannot do; for the motion was not, and did not purport to be, a petition for a rehearing, a motion for a new trial or a motion to vacate, amend or modify the judgment.
The motion was made under rule 52(b) of the Federal Rules of Civil Procedure, which provides: “Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.” The motion in this case, though not made within the time prescribed in rule 52(b), was made within that time as enlarged by an order obtained by appellant pursuant to rule 6(b) of the Federal Rules of Civil Procedure. The order, however, did not extend the time for taking an appeal and could not have done so; for rule 6(b) expressly forbids any such extension.
Rule 52(b) provides, as shown above, that the court may, upon motion of a party, amend its judgment as well as its findings. The motion in this case was not, however, a motion to amend the judgment. It was merely a motion to amend and supplement the findings and conclusions. Appellant cites no case, and we have found none, holding that such a motion extends the time for taking an appeal.
The cases cited in appellant’s brief (Thomas Day Co. v. Doble Laboratories, 9 Cir., 41 F.2d 51; The Astorian, 9 Cir., 57 F.2d 85; Neely v. Merchants Trust Co., 3 Cir., 110 F.2d 525; Fiske v. Wallace, 8 Cir., 115 F.2d 1003) are readily distinguishable from the case at bar. There was, in the Thomas Day case, a petition for rehearing; in The Astorian, a similar petition; in the Neely case, a motion to vacate the judgment; in the Fiske case, a motion to amend the judgment. In the case at bar, there was no petition for a rehearing, no motion to vacate or amend the judgment.
We conclude that the time within which appellant could have taken a valid appeal expired on August 1, 1941 (three months after entry of judgment); that the appeal actually taken — on September 4, 1941 — was not a valid appeal; and that we have no jurisdiction thereof. Von Holt v. Carter, 9 Cir., 56 F.2d 61, 63.
Appeal dismissed.
Idaho Irrigation District v. Gooding, 9 Cir., 285 F. 453, 461; Thomas Day Co. v. Doble Laboratories, 9 Cir., 41 F. 2d 51 (cited by appellant); The Astorian, 9 Cir., 57 F.2d 85 (cited by appellant); Mitchell v. Maurer, 9 Cir., 67 F.2d 286.
Montgomery Ward & Co. v. Banque Beige, 9 Cir., 298 F. 446; Davis v. Livingston, 9 Cir., 13 F.2d 605; Janus v. United States, 9 Cir., 38 F.2d 431.
Southern Pacific Co. v. Sartoris, 9 Cir., 27 F.2d 852; Neely v. Merchants Trust Co., 3 Cir., 110 F.2d 525 (cited by appellant).
Fiske v. Wallace, 8 Cir., 115 F.2d 1003 (cited by appellant).
United States v. Steinberg, 2 Cir., 100 F.2d 124.
See cases cited in footnotes 1-5.
Rule 6(b) provides: “When by these rules * * * an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion * * * order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order * * *; but it may not enlarge * * * the period for taking an appeal as provided by law.” | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
99
] | songer_appnatpr |
In the Matter of Richard KNAPP, Bankrupt-Appellant, Michael J. Daly, III, State Court Receiver of Tanglewood Incorporated, and J. E. Smith & Company, Incorporated, Objecting Creditors, and John F. Phelan, Trustee in Bankruptcy of Estate of Richard Knapp, bankrupt, Appellees.
No. 103, Docket 27591.
United States Court of Appeals Second Circuit.
Argued Oct. 25, 1962.
Decided Nov. 8, 1962.
Fred B. Rosnick, Waterbury, Conn., (Weisman & Weisman, Waterbury, Conn., on the brief; Sherman L. Quinto, Waterbury, Conn., of counsel), for appellant.
Walter R. Griffin, Waterbury, Conn., for J. E. Smith & Co., Inc., appellee.
Before LUMBARD, Chief Judge, and SWAN and MOORE, Circuit Judges.
PER CURIAM.
The appeal raises a very narrow issue, namely, whether the findings of fact of the referee in bankruptcy are sufficient to support his denial of a discharge. General Order No. 47 requires the judge to accept the referee’s findings of fact unless clearly erroneous. See In re Tabibian, 2 Cir., 289 F.2d 793, 795; Collier on Bankruptcy, 14th ed. Par. 14.65. We hold that Judge Timbers did not err in accepting the referee’s findings and that they are adequate to support denial of a discharge.
The bankrupt conducted his business of constructing and selling residences through Tanglewood, Inc., a corporation formed in December 1957. He was secretary and treasurer of the corporation and he owned 18 of its 20 shares of capital stock, the remaining shares being held by members of his family. After November 1958 he was unable to employ an accountant to keep the books of Tan-glewood. From December 1958 to August 1959 be received some $26,000 from Tanglewood. No books of account or records, either personal or corporate, were produced to reflect to whom or for what purpose this sum was disbursed. His oral testimony left $11,150 of the money not accounted for. The bankrupt’s testimony that he kept the books of account after November 1958 and left them in his home which he vacated in August 1959, and from which they disappeared in some unknown fashion, was not believed by the referee. He found that the books and records of Tangle-wood, Inc., were necessary to determine the bankrupt’s personal financial condition, and held that the bankrupt, in failing to keep adequate books and records for Tanglewood after November 1958, had violated Bankruptcy Act § 14, sub. c(2), 11 U.S.C. § 32, sub. c(2). Further, the referee found that the bankrupt’s inability to explain satisfactorily the loss of assets violated Bankruptcy Act § 14, sub. c(7), 11 U.S.C. § 32, sub. c(7). The discharge was denied on both these grounds.
Under the circumstances disclosed in the record the referee properly found that the corporate books and records were necessary to determine the bankrupt’s personal financial condition. Accordingly, the petition to review was properly denied by Judge Timbers. See In re Sandow, 2 Cir., 151 F.2d 807; In re Muss, 2 Cir., 100 F.2d 395, 396; Simon v. Massachusetts Trust Co., 1 Cir., 276 F. 391, 392-93, cited in his memorandum opinion.
Order affirmed.
. It was later stipulated by all parties that the bankrupt did orally account for the disbursement of the remaining $11,-150. The referee, however, was not satisfied even by the bankrupt’s oral explanation as to the balance. Since the referee was under no obligation to accept the bankrupt’s testimony concerning any or all of the lost assets, we hold the error brought to light by the stipulation — if error it was — to be harmless.
. Section 14, sub. c(2) and sub. c(7) of the Bankruptcy Act, 11 U.S.C. § 32, sub. c(2) and sub. c (7) set forth as grounds for denying the bankrupt a discharge his failure “to keep or preserve books of account or records, from which his financial condition and business transactions might be ascertained” [§ 14, sub. c(2)] or “to explain satisfactorily any losses of assets or deficiency of assets to meet his liabilities.” [§ 14, sub. c(7)]. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. | [] | [
0
] | songer_r_subst |
Gerald E. SMALLWOOD, Appellee, v. UNITED AIR LINES, INC., Appellant. Gerald E. SMALLWOOD, Appellant, v. UNITED AIR LINES, INC., Appellee.
Nos. 82-2115, 82-2116.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 1, 1983.
Decided Feb. 28, 1984.
Herbert Prashker, New York City (William E. Hickman, Poletti, Freidin, Prashker & Gartner, New York City, on brief), for appellant in No. 82-2115, and for appellee in No. 82-2116.
Wyatt B. Durrette, Jr., Fairfax, Va. (Michael C. Montavon, Joyce A. Naumann, Roeder, Durrette & Davenport, P.C., Fairfax, Va., on brief), for appellee in No. 82-2115 and for appellant in No. 82-2116.
Before RUSSELL, HALL and MURNA-GHAN, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
This is an action under the Age Discrimination in Employment Act (ADEA) in which the plaintiff (Smallwood) challenges the refusal of the defendant United Air Lines, Inc. (United) to process his application for employment as a flight officer under a rule providing that an application for employment as a flight officer would not be processed if the applicant were over 35 years of age. The plaintiff was shown on his application to be 48 years of age. At trial of the action the defendant sought to defend against the charge of a statutory violation by asserting, first, that its rule under which it refused to process plaintiff’s application met the requirements of a bona fide occupational qualification (BFOQ) within the Act, and, second, that the plaintiff would not have been hired as a flight officer even if there had been no age discrimination. The district judge, however, confined the trial to the validity of the BFOQ claim and refused to permit the defendant to develop fully, or to rule on the defendant’s second defense. At the conclusion of the testimony, the district judge upheld the validity of the BFOQ defense and ordered the complaint dismissed. On appeal by the plaintiff, we reversed, finding the defendant’s rule not to be a valid bona fide occupational qualification. Since the district court had not ruled on defendant’s second defense, we remanded the cause for trial of that issue, i.e., whether the defendant would not have hired the plaintiff if there had been no age discrimination. Smallwood v. United Air Lines, Inc., 661 F.2d 303 (4th Cir.1981).
After the remand and in preparation for the second trial, the parties engaged in discovery. Because of the direction of such discovery as pursued by the defendant, the plaintiff filed a motion for clarification of issues. In support of his motion, the plaintiff argued 1) that the earlier decision had resolved all issues in the case, including the defense that the defendant would not have hired the plaintiff if there had been no age discrimination; and 2) that, even if that latter issue were still relevant on remand, the defendant was strictly restricted in proof of such defense to evidence on “matters arising subsequent to [the first] trial.” During argument on the motion, the district judge remarked that the Court of Appeals' opinion in the first appeal was “almost a direction for [him] to consider aspects of the case which [he] didn’t consider” and that “the prudent way to proceed [was] to allow the defendant to introduce this additional [evidence which] is apparently not a great deal of evidence.” He opined that if the case went back to the Court of Appeals the record would thereby be “in a position that [the Court of Appeals] can decide [the case] and not send it back here for any more testimony.” For this reason, he said, it was proper “to get all that has to be gotten or is proffered by either side into this record now, so that we can decide this case finally, if possible.” After the hearing, the district judge denied the motion and, in the exercise of his discretion allowed “the reopening of the record and receipt of evidence on the question whether plaintiff would have been hired by the defendant regardless of age.” The cause thereafter proceeded to trial. Both parties offered evidence and at the conclusion of the trial, the district judge, by oral decision, later confirmed by a formal judgment with a later “clarification,” found for the plaintiff.
In his oral decision, the district judge began by expressing doubt that “the wouldn’t-have-hired-anyway defense” was “available as a defense” in this case. Without indicating the reason for such doubt, he proceeded, however, to find that such defense was “available as a defense” but that the burden of establishing such defense by the preponderance of the evidence rested on the defendant. He added, however, that in considering evidence of the plaintiff’s alleged fraud upon his former employer [which was the defense asserted by the defendant], “it’s true that — or at least there is some force to the argument that only those facts available to the defendant as of the time of the rejection of the plaintiff’s application ought to be considered” but that if any evidence after the time of the rejection of plaintiff’s application were deemed “admissible, it seems to me the Court is entitled to be and should be, skeptical of after-the-fact decisions as to what the defendant would have done had it known what it knows now.” It followed with a criticism of defendant’s action, saying that, if there had been no age discrimination, the defendant would at the time of the application have made “suitable inquiry .. . whether or not [plaintiff’s] activity with his former employer was such that it [the defendant] would [have been] warranted] ... [in] rejecting him as an applicant” and whether the defendant would have “interviewed [the plaintiff] ... so that he could have at least ... given his side of the story.” Though he recognized, as the foregoing comments demonstrated, that the critical issue on remand was the plaintiff’s “activity with his former [airline] employer” which caused such employer to fire the plaintiff, the district judge gave no explicit
reasons for his basic decision save this sentence at the end of his decision:
“I find that the defendant has not borne its burden of proof by a preponderance of the evidence that he would not have been hired anyway after viewing this evidence, bolstered as it has been in the interim between the November, 1979 hearing [at the first trial] and now.”
Later, in his judgment order, the district judge added a “clarification” of his decision, “lest there be any uncertainty in the matter.” This clarification consisted of but a single sentence:
“The court’s feelings at the time it ruled, as well as now, are that the after-the-fact rationale and testimony of the defendant in this regard, particularly where no opportunity had been given the plaintiff to explain the prior transaction with his former employer, were just not persuasive.”
The judgment entered by the district court in conformity with this ruling was in two parts: First, it granted injunctive relief by requiring United to “process” plaintiff’s application in the same manner as it processed all other applications received at the time plaintiff filed his application, and, if his application were successfully processed, to include him in the first available class of applicants to be provided flight training, which class the court then found in advance of any processing to be that of January 9, 1978, and to be given all rights and benefits “normally afforded United Air Lines pilot employees, including seniority and longevity rights,” and certain pension benefits. Second, it granted backpay, holding that, if the plaintiff’s application had been processed free of any violation of ADEA, he would be entitled to backpay from January 9,1978, the date it was found he would have been hired absent discrimination, to date of trial of the case, computed to be $92,501.31, which it doubled as liquidated damages, increasing the pecuniary award to the plaintiff $185,002.62. To this it added an attorney’s fee of $125,000, together with costs of $2,160.30.
From that part of the judgment granting the plaintiff backpay and attorney’s fees, the defendant has appealed, asserting that the court’s finding that the defendant had not proved by the preponderance of the evidence that its defense against such award was clearly erroneous, arrived at by the use of improper standards of proof, and in complete disregard of the undisputed evidence. It raised, also, alternatively the contention that, even if the court had been correct in its dismissal of defendant’s defense, it erred in the relief granted. The plaintiff cross-appeals, contending that the denial of his motion for clarification was clearly erroneous. Finding no merit in the plaintiff’s cross-appeal, we dismiss such cross-appeal, but reverse the judgment awarding the plaintiff backpay relief, finding that the district court’s decision and findings in favor of such an award were clearly erroneous.
Before reviewing the evidence connected with the defendant’s appeal herein, it is necessary, particularly in view of certain arguments of the plaintiff later noted and of the language of the district court in its oral decision, to identify specifically the issue with which the present appeal is concerned and to distinguish it from the issue decided by us on the first appeal. We begin such explication by observing that there are generally two issues in disparate treatment cases whether the action be under either the ADEA, Title VII, or Section 1981: One has to do with the substantive issue of violation of the applicable statute or constitutional provision; the other (which, it must be emphasized, only becomes relevant if a violation is proved) involves the remedy which generally presents the question of compelled hiring, reinstatement, or promotion accompanied with backpay. These two issues are separate and distinct and their resolution depends on different, or at least additional, evidence and findings. Thus, in this case, the admitted refusal of the defendant to process the plaintiff’s application because of its rule prohibiting the processing of job applications by flight officers over 35 years of age constituted, as we held in the first appeal, a violation of ADEA and entitled the plaintiff to injunctive relief against the present and future use of such rule. That specific issue — one of violation — was decided by our decision in the first appeal in this case and is the law of the case. But that determination did not trigger anything more than a mere presumption of a right in the plaintiff to the remedy of employment and backpay, a presumption which was subject to being defeated by proof by the preponderance of the evidence on the part of the defendant that the plaintiff would not have been hired anyway if there had been no discrimination.
This distinction between the two issues, involving as they do separate and distinct findings based upon separate and distinct facts, was initially explicated in connection with a constitutional claim in Mt. Healthy, 429 U.S. at 285-87, 97 S.Ct. at 575-76, and was later specifically applied in the employment discrimination context in the companion cases of Teamsters v. United States, 431 U.S. 324, 326, 97 S.Ct. 1843, 1850, 52 L.Ed.2d 396 (1977), and East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403-04, n. 9, 97 S.Ct. 1891, 1896-97, n. 9, 52 L.Ed.2d 453 (1977). In the latter case, the Court said:
“Even assuming, arguendo, that the company’s failure even to consider the applications was discriminatory, the company was entitled to prove at trial that the respondents had not been injured because they were not qualified and would not have been hired in any event.”
We have consistently recognized and followed this rule as stated in Rodriguez, the most recent illustration of which being Patterson v. Greenwood School Dist. 50, 696 F.2d 293, 295 (4th Cir.1982):
“When a court finds that a plaintiff has been discriminated against in violation of Title VII, it retains broad remedial powers to grant injunctive relief and to order such affirmative action as may be appropriate. See EEOC v. Ford Motor Co., 645 F.2d 183, 200 (4th Cir.1981). When retroactive promotion and back pay are sought, however, further questions must be asked. The statute makes it clear that these forms of relief are available only where the employee would have received the promotion had she not been the victim of discrimination. The case law is also plain that the purpose of a back pay award is to make the plaintiff whole; that is, to restore her to the position she would have occupied but for the discrimination.”
Although the two issues require separate findings, the resolution of which may depend on different evidence, district courts may in the interest of more efficient administration admit evidence on, and dispose of, both issues in one trial. This was the procedure followed in Murnane v. American Airlines, Inc., 482 F.Supp. 135 (D.C.D.1979), aff’d., 667 F.2d 98 (D.C.Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982), a case very similar on the facts to this case and one relied on by the plaintiff. As here, the defendant commercial airline had refused to process the plaintiff’s application for employment as a flight officer because of its rule denying initial employment as a flight officer to persons above a fixed age. That rule was challenged under the age discrimination statute. The defendant airline defended, as did the defendant in this case, raising the claim that its rule qualified as a bona fide employment qualification but adding the defense that, if the rule were not a valid BFOQ, and there were age discrimination, still the plaintiff would not have been hired anyway and backpay would accordingly not be appropriate in the case. The court tried the two issues together and made a ruling on both claims. It sustained the BFOQ defense but proceeded, also, to dispose of the second claim, saying in that regard:
“American contends that since the evidence indicates that it would not have hired plaintiff in any event, plaintiff could not have been injured by any alleged age discrimination and consequently is entitled to no relief. The Court concurs.” 482 F.Supp. at 148.
On appeal that ruling on the right to back-pay was affirmed with this statement:
“In the case at hand, as we have already stated, there is ‘credible and persuasive evidence’ that appellant would not have been selected for the position he claims to have been illegally denied, whether or not the age requirement he objects to was illegally discriminatory. Therefore, applying the principles in the Supreme Court cases just discussed, we conclude that appellant cannot prevail on this appeal.” 667 F.2d at 102, cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174.
The Court in that case thus decided both issues on the basis of a single record.
While there is no question that the two issues, though requiring separate and different evidence and standards of evaluation, can be tried together, as was done in Murnane, that is not the only way the issues may be tried. A court may bifurcate the trial of the two issues. Such was the procedure in a class action approved by us. Sledge v. J.P. Stevens & Co., 585 F.2d at 637. The district judge made it clear throughout the first trial in this case that he was considering only the violation issue. Thus, he repeatedly — ultimately, with considerable emphasis and finality — ruled that he would not permit the defendant to inquire either on cross-examination of the plaintiff or by direct evidence fully into the circumstances of plaintiff’s termination as a flight officer by his previous airline employer, Overseas National Airways (ONA). He in effect by these rulings bifurcated the two issues in this case. If in this case the district court had been sustained in its decision on the defendant's BFOQ defense in the bifurcated trial, its method of handling the case would have saved the court the problem of developing a full record and making a ruling on the remedy issue. We, however, found on appeal that the BFOQ defense was faulty, and remanded the cause to resolve the remedy issue, as we said in our first opinion. Therefore, the sole issue on remand, for trial by the district court, was the issue the district court did not decide, i.e., whether the defendant had established by the preponderance of the evidence that it would not have hired the plaintiff absent age discrimination. The resolution of that issue required the full examination of plaintiff’s termination as a flight officer by his former airline employer, Overseas National Airlines (ONA).
The plaintiff, however, disagrees with this analysis of the issue that was presented at the second trial and that is presented on this appeal. He argues that the BFOQ defense (which he denominates as the “statutory defense”) and the remedy defense are not separate issues but are interdependent and that the determination of the first, (the BFOQ defense) is conclusive under principles of res judicata of the second (the back-pay remedy). He phrases this argument in his brief thus: “Asserting a BFOQ defense logically eliminates the other statutory defense — that the rejection was based upon a reasonable factor other than age (citing Murnane, supra). Since United asserted but failed to prove its BFOQ defense, its liability was established, and it cannot now rely upon the (second) defense.” Citing § 7(a) of the ADEA, he urges that a finding of a violation under the Act carries with it a mandatory finding of entitlement to backpay, and “precludes the defense of ‘wouldn’t have hired anyway’ (italics in brief).” Such an argument is manifestly contradictory of what the Supreme Court said in Mt. Healthy, 429 U.S. at 286-87, 97 S.Ct. at 575-76, and what we held in Patterson v. School District 50, 696 F.2d at 295.
In Mt. Healthy, as we have seen, the Supreme Court directed that in discrimination cases, whether under Title VII or under ADEA, the trial court should first determine whether there was a violation and that, if it found a violation, then it should consider and resolve “the defense of ‘wouldn’t have hired anyway.’ ” Moreover, any contention that a finding of violation carries with it an inescapable ruling in favor of backpay is contradictory of our first decision in this case in which we reversed the ruling of the district court of no-violation but remanded the case in order that the district court might resolve the issue which had not been resolved by the district court in its first decision, i.e., the issue of backpay. On that remand, which would have been unnecessary if plaintiff’s argument were sound, it was both proper and necessary for the district court to do what the court in Nanty v. Barrows Co., 660 F.2d 1327, 1334 (9th Cir.1981) said it should do in such a situation and that is: “afford [the defendant] the opportunity to prove by ‘clear and convincing’ evidence that [the plaintiff] ... in the absence of discrimination, ... would not have been hired.” And this is what was done in this case. The dispositive question in the case thus became whether the defendant had satisfied its burden with proof and, if it had, it would have rebutted the plaintiff’s claim for backpay. Whether the defendant has satisfied this burden depends on an analysis of the record developed at the second trial. We accordingly turn to the evidence on the issue before the district court.
As we have said, the ground on which the defendant claimed it would have refused to employ the plaintiff as a flight officer if there had been no discrimination was the circumstances of the plaintiff’s discharge as a flight officer by ONA on February 13, 1976. The reasons for such discharge were summarized in ONA’s letter of discharge addressed to the plaintiff on that date:
“Upon a full evaluation of all of the information available to this Company, as well'as the information which you have provided, it has been determined that you have, in a most calculated manner, abused privileges which were extended to you both as an employee of this Company and as a flying officer. We have concluded, based on the available evidence, that you misused your ATP card in that you billed flights undertaken by your children to the Company.
Moreover, and of the utmost importance, you secured a purchase order for an amount in excess of $2,000 for a move which you knew, or should have known, was not actually to be accomplished.
“Overseas National Airways regards each incident to be of such a serious nature that either, standing alone, would constitute grounds for discharge. In view of all circumstances, this Company has no choice but to advise you that your services with ONA are hereby terminated.”
There was later a hearing on these reasons for discharge before a Board of Adjustment, convened on the demand of the plaintiff under the terms of the agreement between the plaintiff’s Union and the airline. At this hearing, which was held on February 1, 2, 3, and 8 and May 17, 1977, the plaintiff, assisted by a representative of his Union, and the employer were heard. Both parties stated their respective positions and offered evidence in support. The plaintiff does not contend that the hearing was unfairly conducted or that there was any denial to him of the right to present his evidence. The record is full and complete. All the hearings and the briefs of the parties to the proceedings preceded the filing of plaintiff’s application for employment with the defendant and were fully known to the plaintiff. Later the impartial Referee filed a lengthy report, which was concurred in by two other members of the Board. The members of the Board who did not concur in the result recommended by the impartial Referee did not, however, take any exception to the Referee’s review of the evidence, or to his findings on the basis of such evidence; their objections seemingly were directed at the severity of the penalty. Nor, for that matter, has the plaintiff offered any objections to the statements in the Referee’s report, summarizing the positions of the parties or the evidence offered, though he does argue that the penalty was too severe. That report and the record are a part of the trial record herein. It seems fair under these circumstances to look to this report for a statement of the circumstances of plaintiff’s discharge.
As the report of the impartial Referee makes clear, the first basis for plaintiff’s discharge by ONA was the procuring by the plaintiff of a purchase order from ONA in June, 1975, to cover moving expenses arising out of plaintiff’s change of base from California to New York City. Under the agreement between the Pilots’ Union and ONA, reimbursement was to be had for “[mjoving expenses ... only when a pilot moves from a previous base to his new base ... if the pilot locates within one hundred fifty (150) miles from the new base.” In securing the purchase order, the plaintiff represented he was moving to Cherry Hill, New Jersey, a location within 150 miles of plaintiff’s new base of New York City. The plaintiff, however, did not move, and there was no evidence he ever intended to move to Cherry Hill. He actually moved, as he apparently always intended, to Burke, Virginia. Burke was concededly not within 150 miles of New York. His household goods and furniture arrived in Burke from California on June 24,1975 and were placed in a home in Burke which the plaintiff had contracted for on June 25.
Under the explicit language of the agreement, as quoted above, the plaintiff was not entitled to reimbursement for moving expenses for his move to Burke and, had he not represented falsely that he was moving to Cherry Hill, he would not have had a right to the purchase order from ONA. The plaintiff would excuse his misrepresentation as due to a misunderstanding of the language of the agreement. The Adjustment Board was unable to accept that excuse. We are likewise unable to accept it. The language of the Agreement is clear. It is inconceivable that one with the educational background and business experience of the plaintiff could have misunderstood the simple language of the Agreement. The plaintiff was a graduate engineer and a graduate lawyer who had been both a University instructor in law and an active legal practitioner in several states. In addition, his conduct demonstrated he understood the Agreement’s limitation upon a right to moving expenses. ONA offered proof that before the plaintiff had procured his purchase order to cover moving expenses to Cherry Hill, he had requested a waiver of the 150-mile limitation on his right to moving expenses and his request had been denied. In the face of this conduct, the plaintiff was in no position to claim he did not understand the provision of the Agreement relative to moving expenses.
Moreover, a majority of the Adjustment Board, in their findings, concluded that the plaintiff had misled ONA into issuing a purchase order in his favor for moving expenses by intentionally misleading ONA to believe that he was moving his residence to a location within 150 miles of New York. The report points out in substantiation of this conclusion that the plaintiff ordered stationery with his address given as Cherry Hill, rented a post office box and arranged for a telephone listing (though the listing was of an answering service) in Cherry Hill, and, after he had moved to Burke, had written ONA “on New Jersey stationery, and called specific attention to his New Jersey telephone number (which was not at his ‘residence’).” The Adjustment Board majority found that at no time, either before or after his moving to Burke, had the plaintiff made any effort to secure, or had any intention of establishing a home in Cherry Hill, and that, in the Referee’s opinion, his actions in procuring stationery, showing his address as Cherry Hill, the obtaining of a post office box in Cherry Hill, and the use of an answering service’s number in Cherry Hill, “suggest deliberate deception” on the plaintiff’s part. This conduct of the plaintiff, in the Referee’s opinion, “was a most serious act, one which would normally call for the severest of penalties” (which it would be assumed meant discharge).
There was, also, a second delinquency charged against the plaintiff in the letter of termination, equally serious. It involved the use of his ATP card in purchasing transportation for his children from California east. The purpose of issuing an ATP credit card to flight officers was “to enable employees, such as captains” to secure transportation “from one place to another to pick up or leave scheduled Company flights” but specifically such card was “not to be used for the travel of dependents, whether for personal pleasure or pursuant to a move.” The use of the card by the plaintiff for a purpose known to him to be improper was an inadmissible charge to ONA.
ONA, however, had procrastinated in taking prompt action against the plaintiff after discovering this misconduct on his part. It offered what appears to have been plausible excuses for such delay but a majority of the Adjustment Board decided that, because of this delay, an eighteen (18) month suspension rather than outright termination was in order. But, in agreeing to such penalty, the impartial Referee chose to add this statement:
“A severe penalty certainly, was warranted, since the grievant’s misconduct was extremely serious....
“While rescinding the discharge, the undersigned wants to emphasize that he in no way condones the grievant’s handling of his financial relations with the Company. Since pilots are virtually unsupervised in their daily activities, they must be completely trustworthy, both in' large and small transactions.”
All of these facts, so carefully spelled out in the Report of the Referee were exposed both by ONA’s investigation and at the Board’s hearings, which occurred before plaintiff filed his application for employment with the defendant. The plaintiff sought to moderate this serious transgression by asserting that he admitted to the ONA in August, 1975, that he had actually moved to Burke and not to Cherry Hill, and that he had reimbursed ONA for his children’s transportation. His admission of his move to Burke, however, was quite some time after he had procured his purchase order on the representation he was then in the process of moving to Cherry Hill, according to the Referee’s Report; his reimbursement for his misuse of his ATP card occurred only after ONA had discovered the misuse and was threatening disciplinary action against plaintiff. He conceded at the hearing that his actions under investigation may have been “questionable” and that he may have been negligent in saying he was moving to Cherry Hill rather than Burke, but “he was under great [domestic] pressures” at the time and in any event “the penalty was grossly inappropriate.” The plaintiff even contended at one time that ONA had “deliberately entrapped” him into making admissions related to his transgressions as an employee of ONA. There can be under this record no reasonable basis for finding that the plaintiff had not engaged in misconduct reflecting on his trustworthiness, which misconduct led to his lengthy suspension by ONA as a flight officer.
The district judge, in his oral decision at the conclusion of the trial herein finding that the above evidence did not persuade him that the plaintiff would not have been hired anyway, made no specific findings of fact of his own nor did he indicate disagreement with any of the factual findings set forth in the Report filed by the impartial Referee of the Adjustment Board, filed as a part of the record herein. The only clue to the district judge’s rationale for his decision against the defendant’s defense appears in three comments made by him in his oral opinion and in his later clarification. No one of these comments relates to the actual facts and circumstances of the “alleged fraud” practiced by the plaintiff against his employer, ONA. The factual showing in the record of such misconduct by the plaintiff while in the employment of ONA seems to have been accepted by the district judge. The district judge’s primary objection to the defendant’s defense as based on these undisputed facts was that these facts and the conclusion they required represented an “after-the-fact rationale,” because the facts had not been “available” to the defendant at the time the latter refused to process plaintiff’s application for employment. He declared that he had great doubt whether such “after-the-fact” evidence should be admitted but if “admissible” it was the duty of the court to view it with skepticism. It seems, also, that the district judge felt that the defendant should have, before refusing to process the plaintiff’s application, offered the plaintiff an opportunity to give his side of his difficulty with ONA.
The idea that the defense, based as it was on undisputed facts, should be dismissed or burdened with a heavy cloak of skepticism because it was an “after-the-fact rationale” is a reason that is completely contrary to the bellwether case in this area of Mt. Healthy. In that case, the Court said:
“Initially, in this case, the burden was properly placed upon respondent to show that this conduct was a ‘substantial factor’ — or, to put it in other words, that it was a ‘motivating factor’ in the Board’s decision not to hire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct.” 429 U.S. at 287, 97 S.Ct. at 576.
In short, the Supreme Court instructed district courts in cases where the issue is such as here that they “should” proceed to make the “after-the-fact rationale” which the district court in this case deprecates. Moreover, it nowhere countenanced the idea that the evidence on this issue was to be treated with skepticism; the clear inference is that such evidence was to be weighed by the same standards as other testimony.
This construction of Mt. Healthy has been followed in repeated decisions; in fact, we have found no authority which supports the district court’s condemnation of what it characterizes as the “after-the-fact rationale” in this context. Certainly, the Court did not follow this reasoning of the district court in Murnane, in which, as we have seen, the airline had, as the defendant here, first refused to process the plaintiff’s application under a policy of not processing applications for employment as a flight officer by one who was over 40 years of age. But the defendant was permitted to prove by other facts later developed it wouldn’t have hired the plaintiff anyway. We did the same in Patterson, 696 F.2d 293. Moreover, this procedure is, as the Court described it in Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1097 (8th Cir.1982), “[cjonsistent with the ADEA’s purpose of recreating the circumstances that would have existed but for the illegal discrimination” in determining whether a claimant is entitled to backpay. And, there is nothing unusual in a court resolving what a party to litigation would or should have done under certain circumstances. It is done repeatedly in tort cases. Courts have not bridled in these cases at making “after-the-fact rationale[s].” Neither may they in cases such as this.
Similarly, there is no support in the authorities for the doubt expressed by the district court in its oral opinion on the availability (“not available”) of the defense that the plaintiff “wouldn’t have been hired anyway” because that point was not raised at the time the plaintiff’s application was initially denied processing. Murnane is a perfect answer to such expression of doubt. The defendant there did not raise the plaintiff’s disqualification for employment when it refused to process plaintiff’s application and the evidence on which it rested its contention that the plaintiff would not have been hired “anyway” all involved incidents occurring months after the court had found the defendant had refused to process plaintiff’s application because of his age. Our own case of Patterson, 696 F.2d at 295-96, is likewise in point. There the district court found that the defendant, in filling a vacancy of assistant principal, had “improperly discriminated against [the plaintiff] in violation of Title VII.” The defendant did not on appeal except to this finding. Its defense was that “at least four of the five interviewers [who made the selection in question] would have selected another female applicant ahead of plaintiff for reasons other than prohibited discrimination,” and thus the plaintiff would not have been selected “anyway.” It supported this contention with the evidence of the interviewers. We ordered judgment in favor of the defendant on the issue of backpay because the evidence demonstrated that the plaintiff would not have received the promotion had there been no sex discrimination. Even in Rodriguez v. Taylor, 569 F.2d 1231, 1240-41 (3d Cir.), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), the court said that if the defendant had offered proof at trial [there was no bifurcation of issues in this case] that the plaintiff at any time prior to trial had failed the civil service examination, he would have been denied backpay. In summary, what these cases show is that the disqualification for employment and thus for backpay, based on a “recreating [of] the circumstances that would have existed but for the illegal discrimination.” may be established by evidence which had not been developed at the time the claimant was denied employment, provided such evidence is proved at trial of the remedy issue. In this case, the defendant’s evidence that the plaintiff would not have been hired absent age discrimination because of the circumstances of his discharge for misconduct by his prior airline employer was in existence at the time the plaintiff’s application was denied processing [a fact different from Murnane where the evidence of disqualification occurred after refusal to process] and the evidence that the defendant would not have hired anyone guilty of such misconduct as a flight officer was undisputed.
The feeling of consideration for the plaintiff, as expressed by the district judge in his comment that the defendant should have given the plaintiff an opportunity to give his side of his controversy with ONA is misplaced. Of course, the defendant had no occasion to discuss the plaintiff’s discharge by ONA with the plaintiff at the time it refused to process plaintiff’s application. It had disqualified the plaintiff for employment because his statement of his age in the very first part of plaintiff’s application made any inquiry into plaintiff’s prior employment unnecessary under the defendant’s BFOQ rule. It was only later when it made inquiry of ONA that the fact of plaintiff’s discharge came to defendant’s attention. It acquired then the full proceedings before the Adjustment Board. The plaintiff had given such explanation as he could with reference to the two actions resulting in his discharge at the hearing before that Board. His discharge was injected into the case at both trials in this court, though the court at the first trial denied the defendant an opportunity to examine it fully. At both of these trials the plaintiff had his opportunity to make such explanation as he wished. The tenuousness of that explanation is evident in the record both of this trial and of the Adjustment Board hearings. In view of these opportunities to explain his “side of the story” it would have been a waste of time to request of the plaintiff another explanation.
It is thus clear that, so far as any of the reasons assigned even obliquely by the district court as a basis for dismissing the defendant’s defense, they cannot justify a dismissal of the defendant’s defense. Moreover, the facts in support of the defense [the grounds for plaintiff’s discharge by ON A] are fully detailed in the record and completely justified the defendant’s action. Under these circumstances, the district court’s conclusion dismissing this defense based on the reasoning stated by such court, is clearly erroneous.
But the plaintiff himself, in his brief in this Court, has sought to state reasons other than those suggested by the district judge for upholding the court’s decision awarding backpay. It is interesting that these reasons do not relate to the accuracy of the conclusions by the Adjustment Board majority on plaintiff’s misconduct while employed by ON A. His reasons in effect assume the correctness of the findings of the Adjustment Board majority and rest on the hypothesis that the plaintiff’s conduct so established and found, and as established in the record here was irrelevant and any evidence of such misconduct should not have been received. It is doubtful that the plaintiff ever raised properly this issue before the trial judge. Whether plaintiff did or not, it is manifest from the record that the district judge never ruled on the point. Certainly, there is no reference to the claim either in the district judge’s oral decision or his clarification. But, assuming that the point is properly before us, though, we find it without merit.
This argument of the plaintiff is that proof of his “alleged fraud” upon his former airline employer which caused that employer to discharge him is irrelevant to his qualifications mechanically to operate and pilot an airplane and is, therefore, irrelevant to the issue to be resolved herein, which, he contends, is confined to the ability mechanically to operate and pilot an airplane such as that used by the defendant in its operations. To be more specific: What the plaintiff contends is that trustworthiness, reliability and honesty are in no way required or expected of a pilot of a large commercial plane, to whose substantially unsupervised competency, trustworthiness, reliability, and fidelity to the rules and regulations is committed the safety of the scores of passengers on the plane he pilots. We are unwilling to accept this argument. The logs a pilot maintains, the accuracy of his reports, the faithful and exacting observance of all the safety rules and regulations and their accurate and punctual recording, all are vital to the safety of the plane’s passengers and all depend on the trustworthiness, truthfulness and reliability of that pilot aloft, where he operates largely free from any effective supervision. Any argument that the only qualification of such a flight officer is his mechanical ability to manipulate the various controls of the plane completely lacks conviction. And the evidence in this record demonstrates the necessity for these additional qualifications of trustworthiness and reliability.
The officer of the defendant, who had the responsibility for evaluating applications for employment as flight officers by the defendant, testified to the reasons why trustworthiness and reliability were essential qualifications for employment by a commercial airline of a flight officer. He said:
“Well, I think there are two major reasons. The first being a general statement that United Air Lines is involved with providing a service to the public and we have to create an honest and sincere image with the public. So any employee of United must demonstrate integrity and honesty. In the case of a cockpit crew member, however, I think there is an added factor that comes into it, and that is that cockpit crew members for the most part are people that you have to trust since you can’t oversee their operations on a day-to-day basis. You simply can’t supervise them. If you’re making widgets, you walk down on the floor and see how production is going; but in the case of a flight crew, they may be at 39,000 feet or two miles up and there is no way that you can on a daily basis supervise their work. So it’s doubly important that they demonstrate integrity and honesty.”
The impartial Referee on the Adjustment Board who, undoubtedly was selected by the other members of the Board because of his expertise in employment relationships involving commercial airlines, had earlier confirmed this essential qualification for a flight officer on a commercial airline. He had written in his formal report on plaintiff’s grievance against ONA: “Since pilots are virtually unsupervised in their daily activities, they must be completely trustworthy, both in large and small transactions.” Moreover, a majority of the Adjustment Board was of the opinion that such trustworthiness and reliability were to be deemed requirements for the proper performance of a flight officer’s employment. If this were not so, there would have been no justification for an eighteen months’ suspension of the plaintiff or of his discharge. Nor was this all that was in the record on this point. The plaintiff himself had, prior to his discharge by ONA, sat as a member of an Adjustment Board, investigating another flight officer’s grievance arising out of misconduct similar to that of the plaintiff here, and the plaintiff joined in a penalty of an eighteen months’ suspension for the offending employee. Thus, in the opinion of the plaintiff, his transgression was of such a serious character as to justify the severe penalty. That penalty could not have been justified if that misconduct had not gone to the faithful performance of his duties and responsibilities as a flight officer. In the face of this record, this point loses any value.
Finally, the plaintiff argues that, even if we were to conclude that it was clear error for the district court not to uphold defendant’s defense, this decision should not operate to “cut-off [plaintiff’s] entitlement to damages prior to the time that the disqualification determination was made.” In effect, the plaintiff is contending that, though we may find that the plaintiff would not have been hired anyway based on facts existing at the time he filed his application for employment with the defendant and facts which would have been developed in a reasonable processing of such application by the defendant — a finding which, the plaintiff seemingly concedes for purposes of the argument would foreclose a backpay award — that finding would only operate to bar backpay from the date we made that determination and that for the period between the date when he would have been employed if there had been no disqualification and that of our determination, he would be entitled to backpay. This argument we find untenable. The question is whether the plaintiff would not have been hired had the defendant followed its normal procedure and processed the plaintiff’s application as it did all others. Such processing would have included inquiries of the plaintiff’s former airline employer as listed on his application form. That inquiry would have elicited the full evidence of the circumstances of plaintiff’s discharge by ONA. The information received from ONA would have meant the plaintiff would never have been hired by the defendant as a flight officer. Under those circumstances, the plaintiff would have, like the plaintiffs in Murnane, Patterson and Gibson, not been entitled to backpay. Neither Rodriguez v. Taylor, 569 F.2d 1231, nor Houghton v. McDonnell-Douglas Corp., 627 F.2d 858 (8th Cir.1980), the two authorities cited by the plaintiff in support of his theory, is on point.
It follows from what we have.said that it is incontestable on the record that the plaintiff would never have been employed by the defendant as a flight officer on the basis of his 1977 application. The circumstances of his termination by ONA, fully developed in the record, were such that, under its customary procedure for evaluating applicants for employment as flight officers, the defendant would unquestionably not have found the plaintiff qualified for employment. Neither the district court nor the plaintiff has suggested a single fact or circumstance that would support a contrary conclusion. The district court’s purely con-clusory statement supported by no explicit fact finding, is inadequate. EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633 (4th Cir.1983); Holsey v. Armour & Company, 683 F.2d 864 (4th Cir.1982).
It remains to be decided what disposition to make of this appeal under'these circumstances. Ordinarily, the procedure would be to remand the cause to the district court for resolution. However, this appears to be one of those exceptional eases such as Patterson where it is obvious from a thorough review of the undisputed record that there is but one possible resolution of the critical issue on this appeal and that “any other resolution by the district court would be clearly erroneous.” In that situation it is not necessary to follow the usual rule of remanding the cause to the district court for further action: it is appropriate for us to make the finding that the defendant would not have hired the plaintiff if there had been no age discrimination and thus reverse the finding of the district court that the plaintiff is entitled to backpay and order dismissal of plaintiff’s claim to the processing of his application and to backpay.
Reversed and remanded for the entry of an appropriate judgment.
. 29 U.S.C. § 621, et seq.
. 29 U.S.C. § 623(f)(1).
. See Smith v. Secretary of the Navy, 659 F.2d 1113, 1119-20 (D.C.Cir.1981); Day v. Mathews, 530 F.2d 1083, 1084-85 (D.C.Cir.1976).
. It is odd that in Murnane v. American Airlines, Inc., 482 F.Supp. 135 (D.C.D.1979), aff’d., 667 F.2d 98 (D.C.Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982), on which the plaintiff relies on this appeal, the court held that a rule similar to that involved in this case was a valid BFOQ.
. As the Court observed in Cohen v. West Haven Bd of Police Com’rs, 638 F.2d 496, 502, n. 10 (2d Cir. 1980) there is some disagreement among the Circuits on the burden borne by the defendant in connection with this defense. We held in Sledge v. J.P. Stevens & Co., 585 F.2d 625, 636 (4th Cir.), cert. denied, 440 U.S. 981, 99 S.Ct. 1789, 60 L.Ed.2d 241 (1979), that the proper burden was that of the preponderance of the evidence. The Fifth and District of Columbia Circuits, however, had, in Davis v. Board of School Com’rs of Mobile County, 600 F.2d 470, 474 (5th Cir. 1979), modified on other grounds, 616 F.2d 893 (1980), and Day v. Mathews, 530 F.2d 1083, 1085 (D.C.Cir. 1976), opted for the “clear and convincing” burden of proof. We think the district court in this case was correct in following our decision in Sledge, 585 F.2d at 637, especially since it is the very rule stated by the Supreme Court in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), quoted later, and the plaintiff has offered no objection to this ruling by the district court.
See also, League Etc. v. City of Salinas Fire Dept., 654 F.2d 557, 558-59 (9th Cir.1981), expressing some question whether the burden of proof shifted to the defendant under Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
. Smith v. Secretary of Navy, 659 F.2d at 1119-20; Day v. Mathews, 530 F.2d at 1084-85.
. The rationale for this rule that the right to backpay does not exist if the claimant would not have been hired absent discrimination is because such right is authorized not as punishment for the defendant or as a windfall for the plaintiff but only to put the plaintiff in the same position but in no better position than he would have been had there been no discrimination. In Mt. Healthy, the Court said:
“The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct.” 429 U.S. at 285-86, 97 S.Ct. at 575.
In Cline v. Roadway Exp., Inc., 689 F.2d 481, 490 (4th Cir.1982), we stated the same rule:
“The ordering equitable principle is that a compensatory backpay award should only make the wrongly discharged employee monetarily whole under his employment contract; it should not provide a windfall.”
See also, Walker v. Pettit Const. Co., Inc., 605 F.2d 128, 129 (4th Cir.1979), modified on other grounds, 611 F.2d 950; Slatin v. Stanford Research Institute, 590 F.2d 1292, 1293-96 (4th Cir.1979); Dean v. American Sec. Ins. Co., 559 F.2d 1036, 1038-40 (5th Cir.), cert. denied, 434 U.S. 1066, 98 S.Ct. 1243, 55 L.Ed.2d 767 (1978).
. See note 4, supra.
. The plaintiff identifies this second defense as the “RFOA” defense (a reasonable factor other than age).
. See 661 F.2d at 306, n. 3.
. Under the collective bargaining agreement between the Pilot’s Union and ONA, an employee discharged by the employer, had a right to demand a hearing to investigate and rule on the discharge before an Adjustment Board, consisting of two members selected by the Union, two by the employer and an impartial Referee selected by the other members of the Board.
. Actually, his application stated he was engaged in the practice of patent law at the time.
. Gibson v. Mohawk Rubber Co., 695 F.2d at 1097.
. In Rodriguez the defendant had stood mute after the plaintiff had established a prima facie case, even though it had a perfect defense that the plaintiff would never have been employed because he could not pass the required civil service examination. Had the defendant offered proof of that fact, if it had given the test before trial and proved the plaintiffs failure, the defense against the award of backpay would have been sustained and the action dismissed so far as that issue of backpay was involved. And the Court said exactly this. What the defendant did was to delay until after judgment before it gave the test. That it was this delay that was the basis for dismissal of defendant’s defense is obvious from this language of the opinion:
“The City might well have satisfied its burden of production and conclusively settled the ultimate issue of Mr. Rodriguez’s qualifications had they only administered to him the written civil service exam prior to trial. Instead, the City failed to promptly administer the written exam precluding development of material evidence on this issue until after trial. The importance of requiring employers to adhere to their evidentiary burden at trial is underscored by consideration of the consequences of delaying final determinations of Mr. Rodriguez’s back pay award until the exam was taken (Emphasis added).” 569 F.2d at 1240.
The defendant in this case has not stood mute or delayed to present its evidence until after trial. The defendant has at trial adduced clear proof why it would never have employed plaintiff absent discrimination.
In Houghton, the defendant had no specific age limitation on retention of test pilots. The plaintiff had been terminated for age, it being the defendant’s contention that the plaintiff “could no longer qualify” as a production test pilot. The testimony was addressed to the point whether the plaintiff was qualified at the time he was fired and up to February 18, 1975. Both parties adduced testimony directed to such point. The jury decided in a verdict that he was so qualified. The court in the first appeal decided that up to February, 1975, the plaintiff was entitled to backpay but ruled that, after that date, his qualifications were open to proof. The cause was remanded to determine that question. On remand that question was resolved against the plaintiff. That case presents a situation unlike the one here.
As we have said, neither case parallels the present case. Unlike the defendant in Rodriguez, the defendant in this case sought and was denied at the first trial the right to prove the plaintiff’s disqualification for employment; at the second trial, however, the defendant did establish such disqualification. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
1
] | songer_injunct |
UNITED STATES of America, Appellee, v. Brian Leonard LeMAY, Appellant.
No. 91-1604.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 11, 1991.
Decided Dec. 24, 1991.
Douglas H. Olson, Minneapolis, Minn., for appellant.
Michael W. Ward, Minneapolis, Minn. (Brian Wyneken, on brief), for appellee.
Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.
PER CURIAM.
Brian Leonard LeMay appeals the sentence he received after pleading guilty to drug and tax evasion charges. He argues that the district court abused its discretion in rejecting an initial plea agreement, and that the ten year supervised release term imposed after the district court accepted a second plea agreement exceeded the maximum term authorized under § 5D1.2 of the Sentencing Guidelines. We affirm.
I.
In June 1990 LeMay was indicted for conspiracy to distribute and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846, and with failing to declare illegal drug income on his 1987 tax return in violation of 26 U.S.C. § 7206. In August 1990, LeMay entered into a plea agreement which provided that he would plead guilty to the conspiracy and tax charges; that the government would dismiss the substantive drug count; that he “has cooperated and will continue to cooperate” with the ongoing government investigation; that he would be sentenced in accordance with the Sentencing Guidelines; that his agreed offense level and criminal history resulted in a sentencing range of 97 to 121 months; that the government would move for a § 5K1.1 downward departure “to a maximum sentence range limitation of 27 to 33 months” plus “a period of supervised release of at least 10 years”; and that he could withdraw his plea of guilty if the district court rejected the downward departure motion.
After a hearing, the district court accepted the guilty plea but deferred sentencing until a Presentence Investigation Report was prepared. In December 1990 the court rejected the plea agreement as inconsistent with the Guidelines and set the case for trial, explaining that the maximum sentence agreed to with the downward departure was unfairly low in comparison to longer sentences the court had previously given to a number of LeMay’s less culpable conspirators.
Before trial, LeMay and the government entered into a second plea agreement, containing the same terms as the first, except that the agreed sentence range was 27 to 42 months, rather than 27 to 33 months. LeMay again appeared before the district court and pleaded guilty to the tax and conspiracy counts. Before accepting the second plea agreement, the district court confirmed that both LeMay and his attorney understood that it called for ten years of supervised release, rather than the three to five year range called for in § 5D1.2(a) of the Guidelines. The court then accepted the plea agreement, granted the government’s downward departure motion, and sentenced LeMay to concurrent prison terms of 39 months on the conspiracy offense and 36 months on the tax offense, followed by concurrent terms of ten years and one year of supervised release.
LeMay’s PSI set the Guideline range for his drug conspiracy offense at 151-188 months in prison plus five years of supervised release. Thus, his sentence reflects a downward departure of 112-149 months in prison but five additional years of supervised release. LeMay appeals that sentence.
II.
LeMay argues that the district court abused its discretion when it refused to accept his first plea agreement because of the 33 month sentence “cap.” Rule 11(e) of the Federal Rules of Criminal Procedure authorizes plea agreements that contain either a nonbinding recommendation for a particular sentence or an agreement that a specific sentence is appropriate. Such plea agreements are subject to acceptance or rejection by the district court. “In the case of a plea agreement that includes a nonbinding recommendation, the court may accept the recommendation if the court is satisfied ... that ... (2) the recommended sentence departs from the applicable guideline range for justifiable reasons.” U.S.S.G. § 6B1.2(b).
Prior to the Guidelines, a district court had broad discretion under Rule 11(e) to reject a negotiated plea agreement. See United States v. Moore, 637 F.2d 1194, 1196 (8th Cir.1981). Here, the district court’s reason for rejecting LeMay’s first plea agreement was clearly an acceptable basis for exercising that discretion: “A decision that a plea bargain will result in the defendant’s receiving too light a sentence under the circumstances of the case is a sound reason for a judge’s refusing to accept the agreement.” United States v. Bean, 564 F.2d 700, 704 (5th Cir.1977).
The Guidelines were not intended “to make major changes in plea agreement practices.” U.S.S.G. § lA.4(c). Although Chapter 6B imposes new substantive standards on the district court’s task of accepting or rejecting plea agreements, it remains a discretionary task, reviewable on an abuse of discretion standard. Moreover, the district court’s reason for rejecting LeMay’s first plea agreement — that it provided an excessive downward departure from the Guidelines range — is a nonreviewable Guidelines decision. See United States v. Sharp, 931 F.2d 1310 (8th Cir.1991); United States v. Evidente, 894 F.2d 1000, 1004 (8th Cir.), cert. denied, 495 U.S. 922, 110 S.Ct.1956, 109 L.Ed.2d 318 (1990). Thus, LeMay’s challenge to the district court’s rejection of his first plea agreement is plainly without merit.
III.
Citing § 5D1.2 of the Guidelines, LeMay next argues that the ten year supervised release term exceeds the statutory maximum of five years, and therefore “this case should be remanded for renegotiation of the plea agreement and resentencing.” Because LeMay did not raise this issue in the district court, it has been waived unless the district court committed plain error, resulting in a miscarriage of justice, by imposing a sentence in violation of law. See United States v. Carnes, 945 F.2d 1013 (8th Cir.1991); United States v. Fritsch, 891 F.2d 667 (8th Cir.1989); United States v. Pratt, 657 F.2d 218 (8th Cir.1981). We conclude that this is not an illegal sentence.
When supervised release terms were first authorized in the Sentencing Reform Act of 1984, 18 U.S.C. § 3583(b) provided that, “the authorized terms of supervised release are ... (1) for a Class A or Class B felony, not more than five years.” The Anti-Drug Abuse Act of 1986 amended § 3583(b) by adding the introductory phrase, “Except as otherwise provided.” At the same time, that Act amended 21 U.S.C. § 841(b)(1)(A) to require that a sentence imposed under that statute include at least five years of supervised release for a defendant with no prior drug convictions, and at least ten years of supervised release for defendants with prior convictions. See Pub.L. No. 99-570, 100 Stat. 3207, §§ 1002, 1006(a)(2). It is obvious to us that the phrase “except as otherwise provided” was added to § 3583(b) so that this statute would not conflict with statutes such as 21 U.S.C. § 841(b)(1)(A) that authorize supervised release terms in excess of five years. Therefore, the relevant statutes expressly permit the ten year supervised release term imposed in this case.
LeMay relies upon § 5D1.2 of the Guidelines in arguing that ten years of supervised release is an illegal sentence. Section 5D1.2(a) of the Guidelines provides:
If a defendant is convicted under a statute that requires a term of supervised release [such as § 841(b)(1)(A) ], the term shall be at least three years but not more than five years, or the minimum period required by statute, whichever is greater.
Here, since LeMay had no prior convictions, § 841(b)(1)(A) required that he receive a supervised release term of at least five years. LeMay argues, in effect, that in adopting § 5D1.2(a) the Sentencing Commission had both the power and the intent to eliminate the authority expressly conferred in the drug abuse statute to impose a term of more than five years of supervised release. We disagree. Section 841(b)(1)(A) and the Guidelines are easily reconciled if the term of supervised release authorized in § 5D1.2(a) is construed as a Guideline range — three to five years — that is subject to the same departures that are applicable to the Chapter 5C imprisonment range.
In this case the government made a downward departure motion pursuant to the plea agreement and § 5K1.1 of the Guidelines. The district court granted that motion because of LeMay’s substantial assistance in the government’s investigation, as expressly authorized by statute. See 18 U.S.C. § 3553(e). The ten year term of supervised release was consistent with the plea agreement, was within the court’s statutory authority under § 841(b)(1)(A), and was part of a sentence that was accepted under § 6B1.2(b)(2) of the Guidelines because it “departs from the applicable guideline range for justifiable reasons.” In these circumstances, even if LeMay did not waive this issue in his colloquy with the district court, we conclude that the resulting sentence was not illegal.
Accordingly, the judgment of the district court is affirmed.
. The Honorable Harry H. MacLaughlin, United States District Judge for the District of Minnesota.
. LeMay's drug conspiracy offense is a Class A felony. See 18 U.S.C. § 3559(a)(1); 21 U.S.C. § 841(b)(1)(A).
. Although the Tenth Circuit reached a contrary conclusion in United States v. Esparsen, 930 F.2d 1461, 1476-77 (1991), it relied upon a concession by the government rather than analysis of the 1986 Act. Accordingly, we decline to follow Esparsen. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
1
] | songer_appnatpr |
Sarah RICHMAN, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
No. 82-1919.
United States Court of Appeals, First Circuit.
Argued May 2, 1983.
Decided June 10, 1983.
C. Donald Briggs, III, Boston, Mass., with whom Bernard A. Kansky, Boston, Mass, and Robert B. Rumrill, Boston, Mass., were on brief, for plaintiff, appellant.
Nancy Serventi, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, ALD-RICH, Circuit Judge, and BONSAL, District Judge.
Of the Southern District of New York, sitting by designation.
BAILEY ALDRICH, Senior Circuit Judge.
In this Federal Tort Claims action defendant filed a motion to dismiss, asserting seven grounds, four of which were accepted by the court, without opinion, with the following succinct order.
Upon consideration of motion and supporting and opposing memoranda, motion allowed and ordered that the case be dismissed on grounds 1, 2, 3 and 6.”
These grounds were, 1. The complaint fails to state a ground upon which relief may be granted. 2. Jurisdiction is lacking because plaintiff failed to file a timely administrative claim as required by law. 28 U.S.C. § 2675, 2401(b). 3. The claims are barred by the statute of limitations. 6. The complaint is barred by the earlier rulings of the district court in C.A. No. 81-0059-Mc.
It is perhaps difficult, simply by reading the complaint, to find sufficient basis for defenses 2 and 3, and, for that matter, 6. However, the “supporting and opposing memoranda” agree on the underlying facts. We shall, accordingly, treat the order of dismissal as a grant of summary judgment for the defendant. So considered, it was correct.
The facts are these. On January 11,1979 plaintiff, a woman entirely unacquainted with one George Chalpin, while walking on a public sidewalk was assaulted and seriously injured by Chalpin, apparently in a fit of temper brought on by anger from learning that his wife intended to divorce him. In December, 1980, while attending Chalpin’s criminal trial, plaintiffs counsel learned that he had been under treatment as an outpatient, and sometime inpatient, prior to the occurrence, at a Veterans Administration hospital for “nervous breakdown and emotional disturbances.” On January 9, 1981, plaintiff sued the United States and the Veterans Administration, but without having previously filed the administrative claim required by 28 U.S.C. § 2675(a). That action was dismissed because of such failure. On September 28, 1981 plaintiff made the claim, appropriate except for the date, which, in due course, the Veterans Administration denied. This suit followed.
Although suit was brought within the specified six months of the administrative denial, it is manifest that the administrative filing was not made within the two years as required by 28 U.S.C. § 2401(b), viz., January, 1981. Plaintiff would excuse this on the ground that this is an action for malpractice, which she says does not accrue until the fact of malpractice is learned, and that she did file administratively within two years of acquiring knowledge of the claim in December, 1980.
Counsel’s ingenuity doubtless deserves recognition, but it is misplaced. The delayed accrual of a patient’s claim against his physician for malpractice is an exception to the general rule that, in the absence of fraudulent concealment, minority, or other special excuse, a statute of limitations begins to run from the date of the wrongful act. The present wrongful act, seemingly the failure to place Chalpin in physical confinement, occurred no later than January 11, 1979, and was not malpractice with reference to the plaintiff even if, for present purposes, it be assumed to be actionable negligence. The postponement of the running of the statute of limitations with respect to true malpractice, whether on the theory that part of the misconduct caused the delay in its discovery, or on some “humane” principle, is not applicable to plaintiff’s claim. See United States v. Kubrick, 1979, 444 U.S. 111, 122-25, 100 S.Ct. 352, 359-60, 62 L.Ed.2d 259. Plaintiff was not a patient, and her difficulty is not, and is not comparable to, a malpractice injury; it is simply that she did not realize there was another party she might be able to make a claim against. Indeed, the Court held even in United States v. Kubrick that if the plaintiff knew of the injury, but failed to inquire and learn of the doctor’s fault, the statute was not tolled. So here, plaintiff knew of her injury; there was no concealment that would toll the statutory period. Davis v. United States, 9 Cir., 1981, 642 F.2d 328, 331-32, cert. denied, 455 U.S. 919, 102 S.Ct. 1273, 71 L.Ed.2d 459.
“The mere failure of a wrongdoer to disclose his wrongdoing, where no fiduciary relation exists, is not a fraudulent concealment of the cause of action . ... ” Norwood Trust Co. v. Twenty-Four Fed. St. Corp., 1936, 295 Mass. 234, 237, 3 N.E.2d 826.
Thus, if a pedestrian were struck by a negligent driver, the statute would run in favor of his undisclosed employer, and the barkeeper who allowed him to drink too much, even if the pedestrian were ignorant of their existence. There would be no limit to when the government might be sued if a plaintiff could assert ignorance as an excuse for not pursuing her claim within the statutory period.
We may add that it is particularly inappropriate for this plaintiff to lament the expiration of the statutory period. If, upon learning of her possible claim, she had filed the statutorily required administrative papers instead of instituting this suit there would have been no problem. Her failure destroyed the court’s jurisdiction to order a judgment against the government, and cannot be waived. Employees Welfare Committee v. Daws, 5 Cir., 1979, 599 F.2d 1375, 1378.
We need not reach defendant’s other grounds.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? | [
"cabinet level department",
"courts or legislative",
"agency whose first word is \"federal\"",
"other agency, beginning with \"A\" thru \"E\"",
"other agency, beginning with \"F\" thru \"N\"",
"other agency, beginning with \"O\" thru \"R\"",
"other agency, beginning with \"S\" thru \"Z\"",
"Distric of Columbia",
"other, not listed, not able to classify"
] | [
6
] | songer_respond1_3_2 |
SUNNY HILL FARMS DAIRY CO., Inc., Plaintiff-Appellee, v. Clifford HARDIN, Secretary of Agriculture, Defendant-Appellant.
No. 20201.
United States Court of Appeals, Eighth Circuit.
Aug. 25, 1971.
William D. Ruckelshaus, Asst. Atty. Gen., Alan S. Rosenthal, William D. Ap-pier, Attys., Department of Justice, Washington, D. C., for defendant-appellant.
James S. Newberry, O’Herin & Newberry, Malden, Mo., for plaintiff-appellee.
Stuart H. Russell, Oklahoma City, Okl., James A. Doyle, Omaha, Neb., for amici curiae Associated Milk Producers, Inc. and Mid-America Dairymen, Inc.
Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and HANSON, District Judge.
HEANEY, Circuit Judge.
The primary question raised on this appeal is the validity of an amendment to the St. Louis, Missouri, Milk Marketing Order. The amendment requires handlers with plants in three southern counties of the marketing area to pay producers an additional fifteen cents per hundredweight for milk. The District Court held that the differential was not a statutorily permissible one.
The detailed facts are found in the various administrative hearings and in the decision of the District Court. We restate only those facts necessary to an orderly exposition of the issues.
In May, 1963, various amendments to the St. Louis Marketing Order were proposed. Sunny Hill Farms Dairy Company, a regulated handler with a plant in Cape Girardeau, Missouri, proposed that six new counties be added to the St. Louis marketing area. Others proposed that a price differential of twenty-six cents per hundredweight would be necessary in some of the newly added counties to align prices in those counties with nearby marketing areas in Kentucky, Tennessee and Arkansas. Sunny Hill took no position on this issue.
The hearing examiner recommended addition of the six counties but declined to recommend either a plus or minus differential for handlers located in any of the new counties. 29 Fed.Reg. 6630 (1964).
Interested parties were given an opportunity to file exceptions to the proposed findings. None was filed by Sunny Hill, and it was not notified that exceptions to the recommendations with respect to the differential had been filed by others.
The Assistant Secretary of Agriculture, after reviewing the record and the exceptions, modified the recommended decision with respect to differentials. He concluded:
“ * * * a price 15 cents per hundredweight above the St. Louis price would be more appropriate for the Cape Girardeau area. Such a price appears necessary to assure an adequate supply for plants in the area, and also provide for better alignment of prices between orders.
“At the present time there are no plants located in the counties of Perry and Ste. Genevieve. If a plant were to be located in these counties, the Class I price should be the same as at Cape Girardeau to assure proper price alignment with markets to the south.”
29 Fed.Reg. 15130, 15139 (1964).
The Assistant Secretary gave these reasons for his decision :
(1) Unless the existing order were amended, a location differential of minus twenty-two cents would be applicable at the Sunny Hill plant.
(2) Producer milk should be priced in relation to its location value. Generally, in order to obtain an adequate supply of milk, markets south of the surplus milk production area in Minnesota and Wisconsin require progressively higher priees corresponding to the increased cost of transporting milk from such alternative supply areas.
(3) Cape Girardeau is approximately 120 miles south of St. Louis, and is located near other marketing areas in which a higher price for milk is paid.
(4) Sunny Hill had traditionally purchased most of its milk from producers located in Cape Girardeau County at a price approximately fifteen cents per hundredweight above the minimum prices received by producers in the county who supplied regulated handlers in St. Louis and the suburban St. Louis market.
The Assistant Secretary’s order became effective on February 1, 1965. 29 Fed.Reg. 18049.
Sunny Hill operated under the order for approximately a year. In January of 1966, it filed a petition with the Secretary of Agriculture, pursuant to 7 U.S.C. § 608c(15) (A), alleging that it was being damaged because it had to compete with other producers in St. Louis paying the lower St. Louis price. It challenged the fifteen-cent differential as being unlawful because:
(1) The differential resulted in the taking of Sunny Hill’s property without due process of law.
(2) The differential constituted an economic trade barrier which limited and discouraged Sunny Hill from selling processed fluid milk in the city of St. Louis.
(3) The differential applied exclusively to Sunny Hill, contravening the Fifth Amendment to the United States Constitution.
(4) The differential was arbitrary in that it did not tend to effectuate the purpose of the act to encourage a sufficient quantity of pure and wholesome milk.
A hearing was held on these contentions. The hearing examiner found that Sunny Hill had failed to demonstrate that the differential was not in accordance with law, and he accordingly recommended that the petition be dismissed. He found that:
(1) The differential could be sustained either as a location adjustment or as a market differential customarily applied, stating:
“There [was] specific statutory authority for the differentials in question. Section 8c(5) of the act authorizes the use classification of milk and the fixing of minimum class prices, which prices ‘shall be uniform as to all handlers, subject only to adjustments for (1) volume, market and production differentials customarily applied by the handlers subject to such order, * * * and (3) the locations at which delivery of such milk ... is made to such handlers.’ 7 U.S.C. § 608c(5) (A). * * * The Assistant Secretary found that milk in the three-county area in question [Cape Girar-deau, Perry and Ste. Genevieve Counties] has a higher value than milk in St. Louis, that the differential would provide better alignment of prices between the St. Louis order and other orders in adjacent marketing areas, and that [Sunny Hill] customarily paid [its] producers about 15 cents more than the minimum prices applicable at St. Louis. * * * ”
(2) The fact that Sunny Hill’s profit had declined approximately forty percent during the year because of the differential did not amount to a taking of its property without due process.
(3) The fact that Sunny Hill was the only handler in the three-county area did not violate due process, because it was reasonable to divide the marketing area into two zones. Furthermore, the differential was by its terms applicable to any handlers entering the market in the future.
(4) There was no trade barrier within the meaning of the statutory prohibition against such barriers.
(5) Sunny Hill had not challenged the sufficiency of the evidence in support of the Secretary’s findings that the differential was necessary to ensure an adequate supply of milk for the Cape Girardeau area.
Sunny Hill took exceptions to the examiner’s conclusions and again requested an order which would eliminate the fifteen-cent location differential.
The Secretary denied the relief requested by Sunny Hill and dismissed the petition. In re Sunny Hill Farms Dairy, AMA Docket No. M 62-2 (U.S.D.A., March 30, 1967).
Sunny Hill then commenced this action in the United States District Court. Motions for summary judgment were made by Sunny Hill and the Secretary. The District Court granted Sunny Hill’s motion on the grounds that the fifteen-cent differential was not permissible under the statute. It held that the differential was not a “location differential,” stating:
“ * * -x- jn the present case, the differential relied on by the Secretary is a location differential or a market differential based on location, and the differential cannot be sustained as to either. The record and the final decision reflecting the facts of the record upon which it is based clearly show that as a ‘differential customarily applied by the handlers’ it was not based on the location, transportation costs or nature of the market, but on the use to which milk was previously put by the handler, a prohibited basis for adjustment to the uniform price. The primary justification for the Order is price alignment with neighboring markets. Such a differential is not specifically authorized by Section 8c(5) (B), but the creation of an orderly market is an objective of the Act. There is no rational basis for singling out plaintiff as the only handler in the entire marketing area to be a buffer between marketing areas when it is undisputed that 69% of its sales are in the St. Louis marketing area. •x- * -x-»
Sunny Hill Farms Dairy Company v. Freeman, 307 F.Supp. 392, 400 (E.D.Mo.1969).
The Secretary of Agriculture appeals. He contends initially that the question of the validity of the differential under the statute was not properly raised in the administrative proceedings leading to this appeal, and that the question was improperly considered by the District Court and cannot now be considered by us.
We are not impressed with this argument. While Sunny Hill’s petition of January, 1966, may have been in-artful in challenging the validity of the order on the grounds that it was discriminatory and in violation of Sunny Hill’s constitutional rights, it would require a highly technical reading of this record to reach the conclusion that Sunny Hill had not also raised the validity of the Secretary’s regulations under the statute. Our review of the entire administrative record convinces us that the question of the validity of the Secretary’s action under the statute was very much before the Secretary in all administrative proceedings. Furthermore, this question was discussed at length in each of the administrative decisions, including the final decision of the Secretary.
It is true that Sunny Hill, at the administrative hearings, did not challenge the sufficiency of the evidence justifying the differential as a permissible one under the statute; but Sunny Hill clearly challenged the statutory right of the Secretary to impose the differential for the reasons advanced.
We turn then to the question of whether the fifteen-eent differential was statutorily permissible. We believe that it was. It not only fits within the literal definition of a location adjustment permitted by the Act, but was found by the Secretary to be necessary to assure an adequate supply of milk for the plants in the area and to provide for better alignment of prices between orders. No challenge was lodged as to the sufficiency of the evidence to support these findings.
The District Court relied on Zuber v. Allen, 396 U.S. 168, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969), in finding the differential statutorily impermissible. In Zuber, the Supreme Court held that a nearby differential payment to farmers within a stated radius of a designated market center was contrary to the provisions of Section 8c(5) (B). The Supreme Court declared that the differential was not a location differential for the simple reason that it was not dependent on the location at which the delivery of milk to a handler was made, but was rather dependent on the location of a producer’s farm with reference to the primary market. The Court stated that the differential could thus be justified, if at all, only as a “market differential customarily applied” and that it could be so justified only if it had as a purpose providing compensation to producers for rendering an economic service. The Court held that the nearby differential could not be so justified. The Court pointed out that the Secretary had failed to advance any economic justification for the nearby differential. It further noted that the differential was included in the original order as a recognition of the favored position of nearby producers in the fluid market and as an inducement to them to approve the order. We find nothing in Zuber v. Allen, swpra, that requires reversal of the case before us. The differential here is based on the handler’s location rather than the producer’s and is not for the purpose of providing benefits to nearby producers.
A recent decision of the Court of Appeals for the District of Columbia is more in point. Fairmont Foods Company v. Hardin, 442 F.2d 762 (D.C.Cir.1791). In Fairmont, a location differential was involved. There, as here, the Secretary divided a marketing area into three zones. Handlers in the central zone were required to pay producers a fifteen-cent differential, and handlers in the western zone were required to pay producers a forty-cent differential. The Secretary found that the differential was necessary to reflect the cost of moving milk from the eastern to the central and the western zones, and to align the prices in the central and western zones with the higher prices in the adjacent Colorado and Black Hills marketing areas. On appeal, the Court held that the differential could not be justified under the statute as there was no support in the record for the Secretary’s finding that higher prices were necessary to reflect the cost of moving milk from east to west. It pointed out that the record showed that the basic movement of milk in the Nebraska marketing area was from the west to the east. It added:
“If there is a slight deficit in the western zones on occasion, due to the Coop’s desire to take advantage of the higher Colorado prices, that does not warrant deviation from the uniform price payable by handlers, which the Act contemplates as the norm for milk marketing orders.”
Id. at 770.
The Court also found that there was no support in the record for the Secretary’s finding that the higher price in the central and western zones was necessary to avoid serious disruption of the eastern Colorado marketing area. It noted that in handling this problem through the Nebraska order, the Secretary had imposed the burden of higher prices on all handlers receiving milk within the central and western zones whether or not they intended to market that milk in Colorado. The Court further noted that very little milk was sold by Nebraska handlers in Colorado, and that, to the contrary, Colorado handlers accounted for a substantial share of milk marketing in western Nebraska. The Court concluded by saying:
“ * * * Assuming that intra-Order differentials may constitute a proper means of dealing with dislocations between western Nebraska and eastern Colorado, there was insufficient need in this case for their application.”
Id. at 772.
Fairmont can thus be distinguished from this case on at least three grounds. First, the sufficiency of the evidence to support the Secretary’s findings was challenged in Fairmont but was not challenged here. Second, there is little evidence in this record to dispute the Secretary’s finding that the order was necessary to maintain a sufficient supply of milk in the Cape Girardeau area. On the contrary, the record indicates that Sunny Hill paid a premium to Cape Girardeau producers to obtain an adequate supply of milk before the order was issued, and that after the order was issued, it still paid approximately fifteen cents per hundredweight to producers not covered by the order to obtain an adequate supply of milk during some seasons of the year. Third, there is little evidence to contradict the Secretary’s finding that the fifteen-cent differential was necessary to align the Cape Girar-deau prices with those in Memphis. Indeed, the record shows affirmatively that Sunny Hill sold approximately nineteen-percent of its milk in the Memphis marketing area at a price in excess of that established for the Cape Girardeau zone. The president of Sunny Hill conceded that, were the differential removed, he would have an advantage in the Memphis area:
“ * * * The Memphis market may be put at a competitive disadvantage, and that’s their problem. The fact that I am put at a competitive disadvantage in the Cape Girardeau market is my problem, and this is what I am trying to work out. So whether or not I would have a competitive advantage over the Memphis market is definitely a problem, but it is not my problem.”
We find that the problem referred to was one for the Secretary of Agriculture, who has the responsibility for carrying out the broad purposes of the legislation.
The Fairmont Court stated in a footnote:
“The Secretary argues among other things, that the differentials set by this Order are based on the ‘locations at which delivery ... is made to handlers,’ and thus fit within the literal definition of a location adjustment permitted by the Act. 7 U.S.C. § 608c(5) (A) (3). We cannot agree, however, that a mere difference in location is sufficient reason to require one handler to pay higher prices than another governed by the same Order. There must still be some relation between the price differential and economic benefit.”
Fairmont Foods Company v. Hardin, supra at 767, n. 23.
We agree that a differential is not a location differential within the meaning of the Act simply because the Secretary calls it one. We also agree that the Secretary is not free to establish a differential for every location at which milk is delivered to a handler. He always has the additional burden of establishing that the differential is, in fact, based upon the handler’s location and that it is required to accomplish the broad purposes of the Act. We feel that the Secretary has borne both of these burdens here.
Sunny Hill raises two additional issues : first, that the location differential discriminated against Sunny Hill and, second, that it created an impermissible trade barrier.
The District Court found that the differential was unlawfully discriminatory because there was no rational basis for it. The court said:
“ * * * There is no reasoned basis for separating out and distinguishing plaintiff from all other regulated handlers in the St. Louis marketing area. *X* * -X- >9
Sunny Hill Farms Dairy Company v. Freeman, supra 307 F.Supp. at 399.
The essence of this argument has been met in the earlier sections of this opinion. In our view, there was a reasonable basis for distinguishing between handlers in Cape Girardeau, Ste. Genevieve and Perry Counties, and handlers in the remaining marketing area. As we have pointed out, the Secretary properly found that the milk had a higher location value at Cape Girardeau than it did in St. Louis.
Because the District Court ruled in favor of Sunny Hill on other grounds, it was not required to discuss Sunny Hill’s contention that the differential constituted an economic trade barrier prohibited by 7 U.S.C. § 608c(5) (G). Since we have reversed the trial court on the other grounds, however, we must consider this contention.
Section 8e(5) (G) provides:
“No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.”
The order promulgated by the Secretary obviously does not prohibit Sunny Hill from marketing milk purchased by it in the St. Louis area or, for that matter, in the Memphis or Paducah areas. The order does make it less profitable for Sunny Hill to sell in the St. Louis market than it would be were Sunny Hill not required to pay its producers the fifteen-cent differential. But the differential is specifically authorized by the Act and reasonable under the circumstances of the case. It thus cannot be construed as establishing an illegal trade barrier. If all location differentials were to be so construed, nothing would be left of the Secretary’s power to promulgate milk marketing orders.
In our view, neither Lehigh Valley Co-op Farmers v. United States, 370 U.S. 76, 82 S.Ct. 1168, 8 L.Ed.2d 345 (1962), nor Polar Ice Cream & C. Co. v. Andrews, 375 U.S. 361, 84 S.Ct. 378, 11 L.Ed.2d 389 (1964), indicate a contrary result, the former because it involved clearly unreasonable compensatory payments and the latter because it involved purchase and allocation requirements imposed upon distributors by a state government.
In summary, we hold that on the basis of the record presented to us, the zoning of the St. Louis milk marketing area was statutorily and constitutionally permissible.
The judgment of the District Court granting summary judgment to Sunny Hill is reversed. The case is remanded to the District Court with directions to enter summary judgment in favor of the Secretary of Agriculture.
. Sunny Hill Farms Dairy Company v. Freeman, 307 F.Supp. 392 (E.D.Mo.1969). For an earlier proceeding involving Sunny Hill, see United States v. Sunny Hill Farms Dairy Company, 258 F.Supp. 94 (E.D.Mo.1966).
. The counties were Cape Girardeau, Bol-linger, Jefferson, Perry, St. Francois and Ste. Genevieve.
. Sunny Hill made a point of this fact at the 1967 administrative hearings. It contended that the failure to notify it that exceptions had been filed to the examiner’s report was a violation of due process. This issue has not been raised on this appeal.
. For a discussion of the general validity of this premise, see Kessel, Economic Effects of Federal Regulation of Milk Markets, 10 J.Law & Econ. 51 (1967).
. Zuber v. Allen, 396 U.S. 168, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969); United States v. Rock Royal Co-operative, 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446 (1939); H. P. Hood & Sons v. United States, 307 U.S. 588, 59 S.Ct. 1019, 83 L.Ed. 1478 (1939). | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
1
] | songer_weightev |
Dr. Nicholas J. CAPOS, Plaintiff-Counterdefendant/Appellant, v. MID-AMERICA NATIONAL BANK OF CHICAGO, a National Banking Corporation, Defendant-Counterclaimant/Appel-lee.
No. 77-1881.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 17, 1978.
Decided Aug. 9, 1978.
Wayne B. Giampietro, Chicago, Ill, for plaintiff-counterdefendant/appellant.
Larry M. Wolfson, Chicago, Ill., for defendant-counterclaimant/appellee.
Before FAIRCHILD, Chief Judge, and SWYGERT and PELL, Circuit Judges.
PELL, Circuit Judge.
Dr. Nicholas J. Capos brought this action against the Mid-America National Bank of Chicago (Mid-America) invoking at trial section 7 of the Securities Exchange Act of 1934, 15 U.S.C. § 78g, and Regulation U promulgated thereunder by the Federal Reserve Board, 12 C.F.R. § 221.1 et seq., and a common law theory that a bank holding stock as collateral for a loan has not only a right but a duty to foreclose on the collateral if its value should fall to the vicinity of the amount owed. After considering an extensive factual and documentary stipulation, deposition and live testimony of Capos and live testimony of a Mid-America official, the district court entered judgment against Capos on his complaint and for Mid-America on its counterclaim for principal and interest due. This appeal followed.
The salient facts are not complicated. In 1966 Capos purchased 5000 shares of stock in diversified Metals Corporation (Diversified), on the advice of his broker. Later that year, on further advice, he purchased 5000 additional shares with funds borrowed from the Michigan Avenue National Bank. The first 5000 shares were used as collateral, and Regulation U was explained to Capos at that time. In 1968, when the bank told Capos it wanted to sell the shares because their value was declining, Capos moved the loan to Mid-America. The April 10 Mid-America loan provided $50,591.83 to pay the loan at the Michigan Avenue National Bank, along with nearly $60,000 to pay income taxes. An earlier $10,000 working capital loan was consolidated therewith, and the entire $120,000 loan was secured by 6000 shares of Diversified, worth at the time about $360,000. No suggestion is made here that this transaction was other than in complete compliance with Regulation U.
In April 1969, Mid-America loaned Capos an additional $25,000 to pay income taxes, the loan being consolidated with the $120,-000 previously owed. The Diversified stock then secured the entire loan, in compliance with Regulation U.
On July 25, 1969, Capos borrowed an additional $22,000 from Mid-America, secured by 4000 additional shares of Diversified stock with a value between $84,000 and $87,000. Capos and Mid-America executed a Form U-l at the time, as required by 12 C.F.R. § 221.3(a), which stated that the proceeds were to be used for the “purchase of stock (regulated).” If, as the district court found, the purpose of the loan was to purchase margin stock, the loan violated Regulation U because the maximum loan value of the securing stock would have been $17,400. The premise of Capos’ Regulation U theory is thus that Mid-America lent him $4600 more than it should have.
While the collateral originally was adequate, the situation changed dramatically in time. The value of Diversified stock fell from $60 per share on April 10, 1968, to approximately $21 per share on July 25, 1969. Unfortunately for all concerned, the slide continued. Although Mid-America at all pertinent times had the right to sell the collateral, it did not do so. Indeed, it was not until May 1972, when the value of the collateral had fallen to approximately $88,-000, or $8.80 per share originally pledged (the outstanding indebtedness being $147,-000 at the time), that Mid-America proposed to sell the stock. Because Capos expressed optimism in Diversified and began a regular principal repayment plan, the stock was not sold. It eventually became worth $3.20 per share originally pledged, if indeed there was a market for the stock even at this price. The district court found, on ample evidence from Capos himself, that Capos had actual knowledge, at least on a week-to-week basis, of the price of the stock during the pertinent period.
I.
We consider first the district court’s judgment on the Regulation U theory. Neither the authorizing statute nor the regulation itself creates a private cause of action to enforce the regulation. In reliance on several decisions, the district court held that a private remedy was properly implicit in the statute and regulation. Mid-America, indeed, did not argue otherwise. It might well be questioned, after the guidance provided by Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), whether a private cause of action should be implied to enforce Regulation U. See, e. g., Utah State University of Agriculture and Applied Science v. Bear, Stearns & Co., 549 F.2d 164 (10th Cir. 1977), cert. denied, 434 U.S. 890, 98 S.Ct. 264, 54 L.Ed.2d 176 (1977); and Theoharous v. Bache & Co., Inc., CCH Fed.Sec.L.Rep. ¶ 96,281 at 92,799 (D.Conn., September 7,1977), both of which hold that Regulation T, which applies margin requirements to brokers, does not imply a private remedy. Because the question has not been briefed here, and because, even if there were a private remedy available, this plaintiff could not prevail here, we do not, despite our doubts, need to decide whether a private cause of action is properly implied.
The district court held that the remedy was nonetheless barred by the statute of limitations. As there is no limitations period specified for such actions in the Securities Exchange Act of 1934, the limitations period of the forum state, Illinois, which “ ‘best effectuates’ the federal policy at issue” controls. Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125 (7th Cir. 1972) (citation omitted). The district court found Ill.Rev.Stat.1975, ch. 83 § 15 controlling. It provides that “[a]ctions . . . for a statutory penalty . . . shall be commenced within two years next after the cause of action accrued.” The complaint in this action was filed nearly five years after the July 25, 1969, loan. Not surprisingly, Capos invokes the five-year limitations period of Ill.Rev.Stat.1975, ch. 83 § 16:
actions ... to recover damages for an injury done to property ... or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.
Capos makes no attempt to justify application of the specific provisions of § 16, arguing merely that this is not an action for a statutory penalty, and is thus “not otherwise provided for.”
We believe the district court correctly applied § 15. The purpose of the margin requirements, as is plainly indicated in the authorizing legislation, quoted supra, is to prevent excessive use of the nation’s credit resources for speculation in the stock market. See Remar v. Clayton Securities Corp., supra, 81 F.Supp. at 1017. As this court stated in Daly v. Columbia Broadcasting System, Inc., 309 F.2d 83, 86 (7th Cir. 1962):
Illinois cases demonstrate that if an individual is subjected to civil liability for the violation of a regulatory statute for the general protection of the public, such liability is penal in nature and barred by the two-year statute of limitations. [Citations omitted.]
Furthermore, the relief requested here is a forfeiture of Mid-America’s right to recover most of the money lent to Capos and liability of Mid-America for the diminished value of the Diversified securities. We note that this diminution in value bears absolutely no relationship to the Regulation U violation, and that absent the diminution the only “injury” to Capos was that Mid-America lent him $4600 more than it should have. This activates the Illinois rule that a statute “imposing a forfeiture or penalty for transgressing its provisions when the object of the statute is clearly to inflict punishment on the party violating it” is penal. Superior Laundry & Linen Supply Co. v. Edmanson-Bock Caterers, Inc., 11 Ill.App.2d 132, 136 N.E.2d 610 (1956). See also Schiffman Bros. Inc. v. Texas Co., 196 F.2d 695 (7th Cir. 1952), holding that § 15 governs, in Illinois, actions brought under the treble damage provisions of the Clayton Act, 15 U.S.C. § 15.
Capos argues that even if a penalty is involved, it is not a statutory penalty within the meaning of § 15 because it is not explicitly provided for by statute. The argument is specious. Literal precision in borrowing an appropriate statute of limitations from the forum state is not required, and even if it were, the very premise of this lawsuit is that the federal statute directly implies this cause of action and these remedies.
II.
With regard to the common law theory, the district court thought that there was a duty on Mid-America to exercise reasonable care in preserving the value of the Diversified stock collateral, but concluded that the bank had not breached its duty, and that Capos’ contributory negligence barred recovery in any event. We would have no difficulty affirming the court’s judgment on the ground of contributory negligence if the underlying duty were that found by the district court to exist. Clearly Capos had equal opportunity with Mid-America to stay apprised of the declining value of the stock, and the district court’s finding that Capos in fact did so, at least weekly, is fully supported by the evidence. At any point prior to the stock’s value becoming less than the amount owed, Capos could have instructed the bank to sell the stock and liquidate the debt. Thereafter, he could have acquiesced in Mid-America’s suggestion that the stock be sold. The loss in the stock’s value was, quite simply, an investment loss, the investment was Capos’, not Mid-America’s, and any negligence in not cutting the losses was at least equally his.
Mid-America urges us to affirm the district court judgment on the alternative ground that a bank has no duty to its borrower to sell collateral stock of declining value. We think it appropriate to do so. It is the borrower who makes the investment decision to purchase stock. A lender in these situations merely accepts the stock as collateral, and does not thereby itself invest in the issuing firm. Nor, unless otherwise agreed, does the lender undertake to act as an investment adviser, although imposing a duty on the lender to sell the stock at the “reasonable” time would foist that role upon it. Not surprisingly, Illinois common law did not impose a duty on a pledgee to sell shares of stock at any time or liability for depreciation of the shares’ value while in his possession. Rozet v. McClellan, 48 Ill. 345, 348 (1868).
The Uniform Commercial Code, which now governs these situations provides:
A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.
Ill.Rev.Stat.1975, ch. 26 § 9-207(1). The Illinois Comments on this provision make it clear that the first sentence adopts the standard of care of the Restatement of .Security, § 17 (1941), and that the second sentence adopts the standard of Restatement § 18. Restatement § 17 is in language quite similar to that used in § 9-207(1), but Official Comment a. is disposi-tive evidence that the duty imposed is not that urged by Capos:
The rule of reasonable care expressed in this Section is confined to the physical care of the chattel, whether an object such as a horse or piece of jewelry, or a negotiable instrument or document of title. (Emphasis added.)
The language of Restatement § 18 is much like that of the second sentence of § 9-207(1), and neither would appear to have any pertinence to the mere diminution in market value of securities. If there can be any doubt, Official Comment a. to the Restatement provision ends it: “The pledgee is not liable for a decline in the value of pledged instruments, even if timely action could have prevented such decline.”
We see no warrant in Illinois law for engrafting a new and significantly burdensome duty onto § 9-207(1). Although the district court’s opinion referred to “harsh” results not in keeping with present day commercial realities if the statute’s language is given its natural and apparently intended meaning, we see nothing harsh or unrealistic about requiring a borrower/investor to contract for investment advice if he wishes to receive it. As for the authorities relied upon by Capos and the district court, they are readily distinguishable, as they involved failures to exercise rights to convert debentures into stock and a failure to present a note for payment (thus releasing a solvent indorser). Either situation falls within the second sentence of § 9-207(1), see Illinois Code Comment 2, whereas this case, as we have said, does not.
For the reasons set out herein, the judgment of the district court is affirmed.
. 15 U.S.C. § 78g provides, as pertinent:
(a) For the purpose of preventing the excessive use of credit for the purchase or carrying of securities, the [Federal Reserve Board] shall . prescribe rules and regulations with respect to the amount of credit that may be initially extended and subsequently maintained on any security . Subsection (d) makes it unlawful to extend or maintain credit “for the purpose of purchasing or carrying any security” in contravention of the rules prescribed by the Board.
. 12 C.F.R. § 221.1 provides, in pertinent part:
(a) Purpose credit secured by stock.
(1) . . .no bank shall extend any credit secured directly or indirectly by any stock for the purpose of purchasing or carrying any margin stock in an amount exceeding the maximum loan value of the collateral, as prescribed from time to time for stocks in § 221.4 [20% of the stock’s value being the figure prescribed during the period pertinent to this case]
. The firm later changed its name to Diversified Industries, Inc. For convenience our reference to the firm will be simply as Diversified.
. We reject Mid-America’s challenge to this finding. The Form U-l together with Capos’ testimony adequately support the conclusion that such was the articulated purpose. Insofar as the argument is that there is no proof the funds were in fact so used, we agree with the district court that the subsequent use is not the test. We can well imagine the outrage Mid-America would evince if the stated purpose had been to pay income taxes, but the actual use of the proceeds was to purchase margin stock, and a Regulation U violation was asserted against the bank.
. At some point, Diversified stock split, so the actual value per share may have been somewhat lower in May 1972. The figure per share originally tendered is useful for comparison.
. Remar v. Clayton Securities Corporation, 81 F.Supp. 1014, 1017 (D.Mass.1949); Serzysko v. Chase Manhattan Bank, 290 F.Supp. 74, 78 (S.D.N.Y.1968), aff’d, 409 F.2d 1360 (2d Cir. 1969), cert. denied, 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180; Smith v. Bear, 237 F.2d 79, 87-88 (2d Cir. 1956).
. There is no request that the funds lent to pay income taxes or for working capital be forfeited, although the calculation of “damages” sought would apparently apply all principal payments made by Capos to these loans.
. Chattanooga Foundry and Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906), cited by Capos, is inapposite, for its purported to do no more than decide the proper result under Tennessee law.
. Reed v. Central National Bank of Alva, 421 F.2d 113 (10th Cir. 1970) (conversion rights); Grace v. Sterling, Grace & Co., 30 App.Div.2d 61, 289 N.Y.S.2d 632 (1968) (conversion rights); State Bank of Clinton v. Parkhurst, 155 Ill.App. 101 (1910) (presenting note for payment). | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_weightev |
UNITED STATES ex rel. FLETCHER v. FAHEY et al.
No. 7568.
United States Court of Appeals for the District of Columbia.
Argued Dec. 12, 1940.
Decided Feb. 24, 1941.
Petition for Rehearing Denied March 19, 1941.
Motion to Vacate Opinion and Judgment Denied April 10, 1941.
Edmond C. Fletcher, of Washington, D. C., pro se.
Harvey D. Jacob and E. K. Neumann, both of Washington, D. G, for appellees.
Before GRONER, Chief Justice, and LUHRING and O’DONOGHUE, United States District Judges sitting by assignment.
GRONER, C. J.
R.S. § 5438 made it a crime to present false claims against the United States, and by the terms of R.S. §§ 3490, 3491, and 3493, any person may institute an action in a District Court, on behalf of the United States, against the wrongdoer, to recover a penalty and double the damages sustained, one half of which the informer may keep for himself.
Appellant brought this action in the court below against John H. Fahey and others, who at the time in question were either members or executive officers of the Federal Home Loan Bank Board, to recover 400 million dollars, plus a penalty of $34,-000, because of their acts in the following circumstances. § 4(a) of The Home Owners’ Loan Act of 1933, authorized and directed the Federal Home Loan Bank Board “to create a corporation to be known as the Home Owners’ Loan Corporation, * * * which shall have authority to sue and to be sued in any court of competent jurisdiction, Federal or State”. The complaint charges that certain of the defendants, acting as members of the Board, “misconceiving themselves to be a Sovereign power, from which all corporate franchises flow, spread upon the records of said Board” a paper purporting to be a charter of the Home Owners’ Loan Corporation; that their action in this respect was beyond any power committed to them by the Act or by any statute of the United States; that, having taken this illegal action, they then transmitted to the Secretary of the Treasury a copy of the resolution, represented to him that the corporation was a bona fide and existing body corporate with a capital stock of 200 million dollars, called on him to subscribe on behalf of the United States for all of “such purported capital stock of said pretended corporation”, and demanded and received from the Treasury of the United States from time to time various sums of money aggregating 200 millions in payment for the stock.
This brief narrative is sufficient to show that the purpose of the suit is to recover on behalf of the United States double the amount of money paid for stock of the Home Owners’ Loan Corporation, on the theory that there is no such legal corporation and that the money had been secured by the false and fictitious claim of the defendants that the corporation had been properly and legally incorporated. The trial court dismissed the complaint on the authority of Fletcher v. Jones, 70 App.D.C. 179, 105 F.2d 58, certiorari denied 308 U.S. 555, 60 S.Ct. 116, 84 L.Ed. 467.
In this court appellant contends that it takes the act of a sovereign power to create a corporation, that the statute does not authorize the Board to issue a charter, and that the Board could create the Home Owners’ Loan Corporation only by obtaining a charter from the District of Columbia or some state.
We find no merit in the contention and think the lower court was quite correct in holding the case controlled hy the Jones decision. There the same plaintiff as here sought to recover possession of realty on a resulting trust, on the ground that the beneficiary in a deed of trust was the Home Owners’ Loan Corporation, which it was alleged did not exist. We examined the statute and held that Home Owners’ Loan Corporation had been properly organized according to law and had complete corporate existence. We now adhere to all that we said there.
Appellant also argues that the complaint could not be “dismissed” without the written consent of the judge and of the United States Attorney, required by R.S. § 3491 before actions of this nature, once filed, may be “withdrawn or discontinued”. This point, too, we think without merit. The action of the court was on a motion to dismiss for failure to state a cause of action. This was a proper defense, and the prohibitions of the statute were intended to reach a wholly different situation.
Affirmed.
Now reproduced in amended form in 18 U.S.C.A. § 80, cf. United States ex rel. Kessler v. Mercur Corp., 2 Cir., 83 F.2d 178, certiorari denied 299 U.S. 576, 57 S.Ct. 40, 81 L.Ed. 424.
31 U.S.C.A. §§ 231, 232, 234.
48 Stat. 129, 12 U.S.C.A. § 1463(a). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Your task is to determine which specific federal government agency best describes this litigant. | This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Which specific federal government agency best describes this litigant? | [
"Federal Aviation Administration",
"Federal Bureau of Investigation (FBI)",
"Federal Coal Mine Safety Board",
"Federal Communications Commission",
"Federal Deposit Insurance Corporation and FSLIC",
"Federal Election Commission",
"Federal Energy Agency (Federal Power Commission)",
"Federal Energy Regulatory Commission",
"Federal Home Loan Bank Board",
"Federal Housing Authority (FHA)",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Federal Mine Safety & Health Administration",
"Federal Mine Safety & Health Review Commission",
"Federal Reserve System",
"Federal Trade Commission"
] | [
8
] | songer_respond2_3_3 |
TALBOT TRACTOR COMPANY, INC., Plaintiff, v. HINOMOTO TRACTOR SALES, USA and Southern Tractor Corporation, Defendants-Third-Party-Plaintiffs-Appellants, v. KANEMATSU-GOSHO, (U.S.A.) INC., Third-Party-Defendant-Appellee.
No. 82-3389.
United States Court of Appeals, Fifth Circuit.
April 18, 1983.
Jerry Saporito, Albert C. Miranda, Metairie, La., for Hinomoto Tractor Sales USA.
Hayes, Durio & Richard, Steven G. Durio, Lafayette, La., for Southern Tractor Corp.
Franklin, Moore & Walsh, R. Michael Caldwell, Baton Rouge, La., Richard K. Jeydel, New York City, for Kanematsu-Gosho, Ltd.
Before TUTTLE, POLITZ and GAR-WOOD, Circuit Judges.
Circuit Judge of the Eleventh Circuit, sitting by designation.
TUTTLE, Circuit Judge:
This is an appeal from the dismissal by the trial court of a third-party action against Kanematsu-Gosho, (U.S.A.) Inc., for want of personal jurisdiction in the State of Louisiana.
I. STATEMENT OF FACTS AND PROCEEDINGS BELOW
The parties in this action are as follows:
1. Toyosha Company of Japan — a tractor. manufacturer;
2. Kanematsu-Gosho, (U.S.A.) Inc. (“KG”) — an importer of products that receives Toyosha tractors at West Coast ports and delivers them to Hinomoto in Houston for national distribution;
8. Hinomoto USA, Inc. — national distributor of Toyosha tractors;
4. Southern Tractor and Talbot Tractor — competing tractor distributors in Louisiana.
Talbot Tractor filed an action against Southern Tractor and Hinomoto alleging that Hinomoto had breached its non-exclusive Louisiana dealership contract with Talbot and that Southern had wrongfully induced the breach. Hinomoto and Southern then filed third-party demands against Toyosha and K-G alleging that if there was a failure to meet their contractual obligations, Toyosha and K-G had caused the damages alleged by Talbot. K-G moved to dismiss the third-party complaint for lack of personal jurisdiction.
The facts are largely undisputed. In 1978, Toyosha and Hinomoto entered into a contract granting Hinomoto the right to distribute Toyosha products in the United States and Canada. As a corollary to this agreement, Hinomoto and K-G agreed that K-G would serve as importer of Toyosha products for Hinomoto and would deliver them anywhere in the United States specified by Hinomoto. Hinomoto and K-G also agreed that K-G would aid in the processing of warranty claims by consumers of Toyosha products.
It is undisputed that K-G does not conduct or solicit any business, activity in Louisiana. Its contract with Hinomoto was not executed in Louisiana and called for no performance by K-G in that state (though, presumably, if Hinomoto requested the goods to be delivered to Louisiana, K-G would have to comply). K-G takes title to the goods at the West Coast and its relationship with them ceases in Houston. The record is not clear as to whether K-G delivers Toyosha tractors to Hinomoto in any place other than Houston. K-G had no role to play in picking dealers.
II. STATEMENT OF ISSUES
1. Does the district court have personal jurisdiction over K-G?
a) doing business?
b) minimum contracts?
c) fair and reasonable?
2. (Secondary Issue) If the Due Process Clause would not block the exercise of jurisdiction, does § 3201(d) of the Louisiana Longarm Statute provide personal jurisdiction over an out-of-state contract breacher simply because a victim of the breach resides in-state?
Hinomoto’s claim of personal jurisdiction is based on the Louisiana Longarm Statute, which provides:
A Court may exercise personal jurisdiction over a non-resident, who acts directly or by an agent, as to a cause of action arising from the non-resident’s (a) doing business in the state;
sfc * ¡k s¡c
(d) causing injury or damage in this state by an offense or quasi-offense committed through an act or omission outside of the state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.
La.Rev.Stat.Ann. § 13:3201(d).
This Court has held: “This statute was intended to permit the full exercise of in personam jurisdiction allowable under due process standards in cases when the suit ‘arises from’ the non-resident’s contacts with the forum.” Standard Fittings Co. v. Sapag S/A, 625 F.2d 630, 638-40 (5th Cir. 1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299, (1981). “Business activity which will satisfy the requirements of due process will thus necessarily satisfy the ‘transacting business’ requirement of the [Louisiana] Longarm Statute.” Austin v. North American Forest, 656 F.2d 1076, 1089 (5th Cir.1981).
III. THE DISTRICT COURT OPINION
The district court relied on Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) and Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974) to reject the notion that K-G had sufficient minimum contacts with the state to be haled into court. The court found that K-G had not purposefully availed itself of the benefits of conducting business in the state, and its contacts with Louisiana were not “reasonably foreseeable.” The court held that the mere knowledge by K-G that Hinomoto had a national distributorship was insufficient since K-G never shipped any goods to Louisiana or performed any warranty work in the state.
Without citing any cases, the district court also stated that courts were less willing to assert jurisdiction over a party alleged to have breached a contractual duty than over a party “standing in the shoes of” the manufacturer of an injury-causing product.
Finally, the court (again without citing cases) asserted that even if K-G was subject to jurisdiction under the Due Process analysis, § 3201(d) only addresses tortious misconduct and that no portion of the Statute provides for jurisdiction over a “breaching” party with only attenuated contacts in the state.
IY. DISCUSSION OF ISSUES
The appellant bases its argument on the notion that K-G should reasonably have foreseen that some of the products handled by it would be sold or used in Louisiana. Appellant also urges that K-G “derives revenue” from the state since each tractor sold in Louisiana means an additional tractor shipped by K-G.
The appellant attempts to distinguish Volkswagen, the case relied on by the district court in which the Supreme Court refused to allow an Oklahoma state court to exercise jurisdiction over the sellers of an automobile in a products liability suit brought by persons who had purchased the automobile in New York as New York residents. The Court held that the mere fact that the accident occurred in Oklahoma was not enough and rejected the plaintiffs’ contention that the “reasonably foreseeable” doctrine should subject the seller to suit in every state.
The appellant urges that the contacts in the present case were not “simply fortuitous” (as the Supreme Court labeled those in Volkswagen) and cites Austin v. North America Forest Products, 656 F.2d 1076 (5th Cir.1981) where this Court stressed that jurisdiction may be exercised where contacts with the state are “purposeful and deliberate.” The appellant urges that the present case bears no factual semblance to Volkswagen since K-G and Hinomoto were parties to an agreement specifying that Hinomoto was a distributor for an area including Louisiana.
Hinomoto also argues that notions of fairness and judicial economy compel the assertion of jurisdiction over K-G. Hinomoto notes that it was itself haled into court in Louisiana and urges that to require it to file a separate suit for indemnity in Texas would not create any inconvenience to K-G and would waste judicial resources.
The appellee K-G relies heavily on Volkswagen. As for the foreseeability of any product transported by K-G entering Louisiana, K-G quotes:
The foreseeability that is critical to due process analysis is not the mere likelihood that the product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.
Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. K-G urges that the foreseeability doctrine is especially inapplicable to it given that it is not a manufacturer and that Hinomoto’s claim rests on a breach of contract rather than a tort. K-G stresses that the manufacturer, Toyosha, had a direct distribution agreement with Hinomoto and that K-G acted for Hinomoto to transfer the goods to Houston.
The appellee stresses that its revenues and its activities with regard to Toyosha products were not directly connected in any way to the degree of Hinomoto’s sales in Louisiana. K-G urges that it should not be subject to the jurisdiction of the Louisiana court simply because Hinomoto’s national sales area happens to include Louisiana.
K-G attacks the appellant’s “fairness” argument on two grounds. First, K-G urges that it deliberately structured its relationship with Hinomoto and Toyosha so as to be subject to suits only in a limited number of states; the legal system should have a “degree of predictability ... that allows potential defendants to structure their primary conduct with some minimum assurance as to where the conduct will and will not render them liable to suit.” Volkswagen, supra, at 297, 100 S.Ct. at 567. As evidence of this intent, K-G points to its written arbitration agreements with Hinomoto and Toyosha and urges that Hinomoto can hardly claim that the present suit represents the most efficient resolution of this dispute.
Both parties recognize that the Supreme Court’s pronouncements in Volkswagen, supra, must be carefully analyzed for our determination whether personal jurisdiction exists in this case. Appellee contends that Volkswagen controls because the facts here neatly meet those in Volkswagen. Appellant, to the contrary, points to the fact that there is an important distinction in the facts, to wit: that the only basis for jurisdiction in Volkswagen was the fact that an automobile manufactured or sold by the out-of-state defendant ended up in the State of Oklahoma where it figured in a tortious incident whereas here, the out-of-state defendant is in the chain of national distribution of equipment that ultimately found its way to the State of Louisiana.
Appellant cites only one Fifth Circuit case, Austin v. North American Forest, supra, in its effort to find a matching state of facts based on a breach of contract. In Austin, this Court found in favor of longarm jurisdiction under the Louisiana statute because of the very significant fact present in that case, that the out-of-state defendant was actually required to, and did, submit to the Louisiana plaintiff a certificate of compliance with federal standards, which was required under federal regulations before the contract for the purchased materials could be approved. 656 F.2d at 1090. This, undoubtedly, furnished sufficient contact, not only with the State of Louisiana, but with the particular plaintiff, to warrant, as found by this Court, a determination that the Louisiana statute conferred jurisdiction.
Another Fifth Circuit case, Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974), was cited by the trial court. In that case the Court held that the plaintiff failed to connect Jacques Cousteau and his French company to the contract entered into between Product Promotions, Inc., and CEMA on the basis of agency. It then discussed the nature of proof required to support personal jurisdiction over CEMA, the other party to the contract. It first held that the contract was actually made in Texas. The court then said:
... since the contract was made in Texas, CEMA had reason to foresee that enforcement and protection of its own rights under the contract might depend on the laws of Texas. In short, CEMA voluntarily entered a transaction with one it knew to be a Texas resident, a transaction which had a substantial connection with Texas and which CEMA had reason to know would have consequences in Texas. (Footnotes omitted).
495 F.2d at 497. See also, Benjamin v. Western Boat Building Corp., 472 F.2d 723 (5th Cir.1973), a breach of contract case, which we feel fully supports the trial court’s decision here.
In Volkswagen, the court cited six factors which it considered in determining that long-arm jurisdiction over the defendant did not reside in the Oklahoma courts: (1) defendant conducts no activity in the state; (2) it closes no sales and performs no services in the state; (3) it avails itself of none of the privileges and benefits of state law; (4) it solicits no business either through sales persons in the state or ads reasonably calculated to reach the state; (5) it makes no regular sales to state residents; and (6) it does not “indirectly, or through others, serve or seek to serve the [state] market.” 444 U.S. at 295, 100 S.Ct. at 566.
All of these factors apply to K-G in the present case except possibly the final one, for it is not entirely clear that K-G does not “indirectly, or through others, ... seek to serve the [state] market.” However, with respect to this factor the Court said: “[Financial benefits accruing to the defendant from a collateral relationship to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State.” 444 U.S. at 299, 100 S.Ct. at 568. Here, there was no effort made by the appellants to show that the sale of a tractor in Louisiana even added substantially to profits of K-G.
Since we conclude that the trial court was correct in finding against personal jurisdiction on due process grounds, we do not reach the question whether subsection (d) would otherwise provide a basis for jurisdiction.
As to appellant’s argument that jurisdiction should be found because of “fairness” in permitting it to litigate against all parties where it was forced into court by the plaintiff, it is clear that fairness itself cannot overcome the requirement of some necessary minimum contacts. In Volkswagen, the Court said:
Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. 444 U.S. at 294, 100 S.Ct. at 565.
The judgment is AFFIRMED. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. | This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
5
] | songer_appel2_1_3 |
James JONES, Appellant, v. BOARD OF POLICE COMMISSIONERS; Gerald McFadden; Terran Williams; Antoinette Lee; Lawrence Stevens; City of St. Louis; Robert J. Baer; John J. Frank; James E. Mosbacher; William H. Young; Arthur R. Coffey; Mayor Vincent C. Schoemel, Jr., Appellees.
No. 87-1097.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 10, 1987.
Decided April 1, 1988.
Rehearing and Rehearing En Banc Denied May 20, 1988.
Helmut Starr, St. Louis, Mo., for appellant. '
David Richard Bohm, St. Louis, Mo., for appellees.
Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.
BOWMAN, Circuit Judge.
James Jones, the plaintiff in this 42 U.S. C. § 1983 action for damages, appeals from a judgment entered by the District Court after a jury verdict for the defendants. The incident upon which the action is based occurred in O’Fallon Park in the city of St. Louis on April 13, 1982. There is a sharp dispute as to what transpired that evening.
I.
Jones testified that he stopped in the park to inspect an unusual noise coming from the rear of his vehicle. When shortly thereafter gunshots were fired by an unknown assailant and a bullet shattered the back windshield of his car, he jumped into his automobile and drove out of the park. A chase ensued. Only after leaving the park did he become aware that some of the vehicles following him were police cars.
According to Jones, when the chase ended he stopped his automobile and stepped out, putting his hands in the air. While he was behind the door on the driver’s side of his vehicle, the police began firing at him, but none of the bullets struck either him or the car door. Two police officers, Gerald McFadden and Lawrence Stevens, approached Jones without weapons in their hands. They struck him, threw him to the ground, handcuffed him, and while he was lying there someone shot him in the groin.
Defendants’ version of the incident is very different. The four police officers named as defendants were assigned to a special detail in O’Fallon Park. Defendants McFadden and Terran Williams were dressed in plain clothes and were operating an unmarked police car. Soon after entering the park, McFadden and Williams passed a black Cadillac driven by Jones. A black man was in the car with him. The Cadillac turned around and pulled up next to the police car, its occupants looking in at the two officers. When the Cadillac pulled away, they decided to follow it.
After rounding a curve, the Cadillac parked near the front of a white Buick. The officers stopped their car and observed the scene with an infrared scope. Jones got out of the Cadillac and walked toward the Buick, holding either a rifle or a shotgun. Jones forced the passenger to get out of the Buick and walk toward the Cadillac.
At this point, McFadden radioed that there was a robbery in progress. He and Williams drove closer to the scene. Using the door of the police car as a shield, McFadden ordered Jones to halt and identified himself as a police officer. Jones fired one shot in McFadden’s direction, then turned and fired at another police car that just had arrived. The occupants of this second car, Officers Stevens and Antoinette Lee, ducked as their windshield shattered.
Jones jumped into the Cadillac and sped away. The police followed in hot pursuit, the Cadillac never leaving their sight except for two or three seconds as they rounded a corner. Both McFadden and Stevens fired shots at the Cadillac during the chase.
The Cadillac’s flight ended at a police roadblock. It approached the roadblock at a high rate of speed, racing toward a police car driven by Officer Michael Johnson. Johnson and his partner leapt out of their car and Johnson fired three shots at the windshield of the Cadillac.
The Cadillac pulled to the curb. Jones jumped out and started to run. The police fired a number of shots at him from the blockaded intersection. McFadden approached Jones on foot, advising him that he was a police officer and that Jones was under arrest. Jones struggled with McFadden in an attempt to escape, and McFadden struck him with his fist three times. Coming to McFadden’s aid, Stevens grabbed and struck Jones. Together the officers placed handcuffs on him. None of the officers fired any shots at Jones after he was handcuffed.
After subduing Jones, the officers discovered that he had suffered a gunshot wound to the perineum. They did not find any weapons, nor did they find the passenger they had seen in the Cadillac.
II.
Jones was charged with robbery, was tried, and was acquitted. Thereafter, he filed this action against McFadden, Williams, Lee, and Stevens, and against the members of the Board of Police Commissioners of the City of St. Louis, alleging that defendants had deprived him of his liberty without due process of law. Specifically, Jones alleged that the police officers used excessive force in arresting him and that they shot him while he was handcuffed and lying on the ground. At trial, the District Court granted a directed verdict for the Board of Police Commissioners, and the jury returned a verdict for the remaining defendants. The District Court denied plaintiff’s motion for a new trial and entered judgment for all defendants.
For reversal, Jones argues that the trial court erred by (1) denying his motion for new trial on the ground that the verdict is contrary to the clear weight of the evidence; (2) failing properly to instruct the jury concerning the officers’ liability for use of excessive force; and (3) denying his motion in limine to exclude evidence of his record as a convicted felon and allowing this evidence to be admitted for the purpose of impeaching his credibility as a witness. We affirm.
III.
Jones argues that the verdict is contrary to the clear weight of the evidence and that the District Court therefore abused its discretion by denying his motion for a new trial. “The denial of a motion for a new trial is within the sound discretion of the trial court, and its ruling will be reversed only upon a showing that the court abused its discretion.” Ryko Mfg. Co. v. Eden Serve., 823 F.2d 1215, 1221-22 (8th Cir.1987) (citations omitted), cert. denied, — U.S. —, 108 S.Ct. 751, 98 L.Ed. 2d 763 (1988). The evidence in this case is conflicting, and the jury chose to believe the police officers. Crediting their testimony, it is impossible to conclude that the verdict is against the weight of the evidence. There is substantial evidence that two of the officers saw Jones committing an apparent robbery, that he fled from the scene, that the officers used no more force than reasonably appeared necessary to apprehend and subdue him, and that they did not shoot him after he was handcuffed and lying on the ground. Accordingly, we cannot say that the District Court abused its discretion.
IV.
Jones contends that the District Court committed plain error by failing to instruct the jury that law enforcement officers may be liable under 42 U.S.C. § 1983 for using excessive force in completing an arrest. The challenged instruction provided:
As stated before, the Fourteenth Amendment to the Federal Constitution provides that no state shall deprive any person of his liberty without due process of law.
The plaintiff in this case, in common with the defendants and all other persons living under the protection of our Constitution, had the legal right at all times not to be deprived, without due process of law, of any liberty secured to him or protected by the Constitution or laws of the United States.
To be deprived of liberty “without due process of law” means to be deprived of liberty without authority of the law. Before the jury can determine, then, whether or not the plaintiff was deprived by the defendants of any of his liberty under the Federal Constitution “without due process of law,” the jury must first determine, from a preponderance of the evidence in the case, whether the defendants knowingly did the acts alleged and, if so, whether, under the circumstances shown by the evidence in the case, the defendants acted within or without the bounds of their lawful authority under state law.
For if the defendants acted within the limits of their lawful authority under state law, then the defendants could not have deprived the plaintiff of any liberty “without due process of law,” since the Court finds and instructs you that the state law applicable in this case meets the requirements of the Federal Constitution.
At all times the plaintiff in this case had the legal right not to be deprived of any liberty protected by the Constitution or laws of the United States, except by due process of law. To be deprived of liberty “without due process of law” means to be deprived of liberty without authority of law. In this respect, this plaintiff has the same legal rights as have the defendants and as have all people living in the United States.
Jury Instruction No. 11. Jones argues that this instruction permitted the jury to make an unguided determination regarding the validity of defendants’ acts under state law.
When a particular jury instruction is assigned as error, the reviewing court must determine whether the instructions, taken as a whole and viewed in light of the evidence and the applicable law, fairly and adequately submitted the issues in the case to the jury. Swift v. R.H. Macy’s & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985). Because Jones’s trial counsel made no objection to instruction 11, our review must be limited to determining whether the error, if any, is plain error in the sense that it has produced a miscarriage of justice. See Fed.R.Civ.P. 51; Rogers v. Rulo, 712 F.2d 363, 368 (8th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). The plain error exception is quite narrow and is confined to the exceptional case where the error seriously affected the fairness or the integrity of the trial. Rogers, 712 F.2d at 368.
Reviewing the instructions as a whole, in light of the evidence and the applicable law, we cannot say that instruction 11 constituted plain error. Instruction 10, as well as 11, informed the jury that Jones had a right not to be deprived of liberty without due process of law. Using the expressions “unprovoked,” “without just cause or excuse,” “maliciously,” “wantonly,” and “oppressively,” instruction 17A correctly described the type of conduct that constitutes excessive force. Although instruction 11 standing alone would not give the jury sufficient guidance, we are satisfied, in view of the other instructions, that the rigorous requirements for reversal under the plain error standard of review have not been met in this case.
V.
Jones argues that the District Court abused its discretion by denying his motion in limine to exclude evidence of his convictions for robbery, rape, and forcible sodomy. Plaintiff argues that the District Court had a duty under Federal Rules of Evidence 403 and 609 to balance the probative value of this evidence against the potential for prejudice, and that the absence of a hearing on the motion in limine or any record of the court’s balancing constitutes reversible error. Jones similarly asserts error with regard to the admission, during his cross-examination, of all his prior convictions, and he particularly emphasizes his view that it was unfair to allow the jury to learn of his rape and forcible sodomy convictions.
Federal Rule of Evidence Rule 609(a) provides:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Rule 609(a) modifies the common law, which freely allowed the use of prior felonies, without regard to the nature of the particular offense, to impeach a witness’s credibility. See Fed.R.Evid. 609 advisory committee’s note. Subsection (1) requires the trial judge to balance the probative value of the evidence of prior felony convictions against the prejudicial effect “to the defendant.” Under subsection (2), a conviction (felony or misdemeanor) involving dishonesty or false statement is, subject to the ten-year time limit imposed by Rule 609(b), always admissible; there is no balancing to be done.
With regard to the admissibility of Jones’s convictions, Rule 609(a)(1) is clearly not applicable in the present case. Assuming arguendo that the Rule does apply to civil cases — and we are not convinced that it does — it is not helpful to Jones as he is the plaintiff in this case. Although at least one other circuit has extended the balancing test of Rule 609(a)(1) to plaintiffs in civil cases, see Petty v. Ideco, 761 F.2d 1146, 1152 (5th Cir.1985), we do not believe that this decision can be reconciled with the unambiguous wording of Rule 609(a)(1). The plain language of the Rule simply cannot be read to mean anything other than that the Rule applies only when to admit evidence of prior convictions for impeachment purposes might unduly prejudice “the defendant.” Thus, a plaintiff has no standing to invoke Rule 609(a)(1), even if the Rule was intended to apply in civil cases, which we seriously doubt.
We turn to Federal Rule of Evidence 403, which 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 403 is a “rule of exclusion that cuts across the rules of evidence.” Shows v. M/V Red Eagle, 695 F.2d 114, 118 (5th Cir.1983) (citation omitted). In keeping with that broad view of Rule 403, we have held that Rule 609 does not preclude the application of Rule 403’s balancing test to evidence of prior convictions offered for impeachment purposes. See, e.g., Radtke v. Cessna Aircraft Co., 707 F.2d 999, 1000 (8th Cir.1983); Czajka v. Hickman, 703 F.2d 317, 319 (8th Cir.1983). Contra Campbell v. Greer, 831 F.2d 700, 707-08 (7th Cir.1987). In this Circuit, it thus is possible, at least in theory, that evidence of prior convictions admissible under Rule 609 without any balancing test could be excluded under the balancing test of Rule 403.
Under Rule 403, the District Court was required to weigh the probative value of the evidence of Jones’s criminal record against the danger of unfair prejudice, but was empowered to exclude this evidence only if the court decided that its probative value was substantially outweighed by the danger of unfair prejudice. A trial court’s ruling as to the admissibility of evidence will not be disturbed unless there is a clear and prejudicial abuse of discretion. See Radtke, 707 F.2d at 1001 (citing E.I. du Pont de Nemours & Co, v. Berkley & Co., 620 F.2d 1247, 1272 (8th Cir.1980)). We find no such abuse of discretion in this case. While it is part of the conventional wisdom to regard crimes such as robbery, rape, and forcible sodomy as being less probative of a witness’s veracity than are offenses involving crimen falsi, a number of courts have approved the admission of evidence of such crimes for purposes of assessing credibility. See, e.g., Campbell, 831 F.2d at 707-08; Leno v. Gaughan, 664 F.2d 314, 315 (1st Cir.1981). Cases such as the one before us, in which the jury had to choose between conflicting versions of the same occurrence, turn on the jury’s credibility determinations. The evidence of. Jones’s prior convictions had probative value to an assessment of his credibility as a witness, and we cannot say, that he was unfairly prejudiced by the admission of this evidence.
While it would have been preferable for the trial court to have made a record of its balancing of the probative value of Jones’s convictions against the danger of unfair prejudice, its failure to do so is harmless when “the substantial rights of the parties” are not affected. See Fed.R. Civ.P. 61. Cf Czajka, 703 F.2d at 319. By denying Jones’s motion in limine to exclude the evidence of his convictions, the Court necessarily responded to his claims of prejudice. We are satisfied that the Court’s failure to make a record of its balancing of probative value against danger of unfair prejudice did not affect Jones’s substantial rights.
Jones raises other issues. We have carefully considered them and find them to be without merit. Accordingly, the judgment of the District Court is affirmed.
. The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri.
. It is undisputed that Jones suffered a single gunshot wound to the perineum and that the edges of the wound were burned. The perineum is the region between the thighs, bounded in the male by the scrotum and the anus. Dor-land’s Medical Dictionary 529-30 (23d ed. 1982). The police deny that anyone shot Jones while he was lying on the ground. There was uncontra-dicted testimony that it was unlikely that Jones’s wound occurred as he claimed, since from that extremely close range the ammunition used by the police would have caused greater injury than Jones actually suffered. The physician who treated Jones’s wound testified that the rim of burn around the wound was not excessive, that he did not recall if the burned skin showed any sign of gunpowder, and that he could not speculate as to the distance from which the bullet had been fired.
. This Court has questioned whether we have the authority to overturn as an abuse of discretion a trial court’s denial of a motion for a new trial on the ground that the jury’s verdict is against the weight of the evidence. See, e.g., Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 906 (8th Cir.1985); SCNO Barge Lines, Inc. v. Anderson Clayton & Co., 745 F.2d 1188, 1194 (8th Cir.1984). We need not address this issue as we find no abuse of discretion in this case.
. There is considerable difference of opinion as to whether Rule 609(a)(1) is applicable in civil cases. Compare Campbell v. Greer, 831 F.2d 700, 703-05 (7th Cir.1987) (Rule 609(a)(l)’s balancing test applies only when the prosecutor in a criminal case is trying to impeach the defendant) with Petty v. Ideco, 761 F.2d 1146, 1152 (5th Cir.1985) (Rule 609(a)(l)’s balancing test applies in civil cases).
. In Campbell, supra note 5, 831 F.2d 700, the Seventh Circuit held that, with regard to Rule 609(a), the “only prejudicial effect that the judge is to consider in ruling on the admissibility of a prior conviction is the prejudicial effect on the defendant in a criminal trial; as to all other witnesses, prior convictions are admissible for purposes of impeachment without any balancing test." Id. at 704. Other courts have similarly held. See Linskey v. Hecker, 753 F.2d 199, 201 (1st Cir.1985). See also United States v. Martin, 562 F.2d 673, 680-81 n. 16 (D.C.Cir.1977) (dictum). While we do not need to decide the issue, we find the Seventh Circuit’s reasoning to be very persuasive.
.Evidence of prior convictions admissible after balancing under Rule 609(a)(1) would be admissible a fortiori under Rule 403 because 609(a)(1) permits admission of the evidence only when its probative value outweighs its prejudicial effect to the defendant, whereas 403 requires admission of the evidence unless its probative value is substantially outweighed by the danger of unfair prejudice. | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). | What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? | [
"Trial (either jury or bench trial)",
"Injunction or denial of injunction or stay of injunction",
"Summary judgment or denial of summary judgment",
"Guilty plea or denial of motion to withdraw plea",
"Dismissal (include dismissal of petition for habeas corpus)",
"Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)",
"Appeal of post settlement orders",
"Not a final judgment: interlocutory appeal",
"Not a final judgment: mandamus",
"Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment",
"Does not fit any of the above categories, but opinion mentions a \"trial judge\"",
"Not applicable (e.g., decision below was by a federal administrative agency, tax court)"
] | [
0
] | songer_applfrom |
UNITED STATES of America, Plaintiff-Appellee, v. Joel H. DARK, Defendant-Appellant.
No. 78-5237.
United States Court of Appeals, Sixth Circuit.
Argued April 10, 1979.
Decided May 4, 1979.
Walter S. Clark, Phyllis L. Bateman, Nashville, Tenn., for defendant-appellant.
Hal D. Hardin, U. S. Atty., Richard L. Windsor, Asst. U. S. Atty., Nashville, Tenn., for plaintiff-appellee.
Before ENGEL and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.
PER CURIAM.
Appellant Dark was convicted of two counts of willfully failing to file income tax returns, in violation of 26 U.S.C. § 7203 (1976), after a jury trial in the United States District Court for the Middle District of Tennessee. He was sentenced to five months’ imprisonment on count one and to one year’s imprisonment on count two, the latter sentence suspended in favor of three years’ probation.
The government’s evidence was plainly sufficient to support the verdict. During 1973 and 1974, Dark was self-employed as a certified public accountant, he taught elementary accounting at Tennessee State University in Nashville, and he attended law school at night. His total receipts on accounts receivable from his accounting practice amounted to $36,331.10 in 1973 and $40,779.22 in 1974. In 1973 he received a salary of $5,420 from Tennessee State. He failed to file income tax returns for either year, despite the fact that he had been specifically warned by the Internal Revenue Service of his obligation under the law to file timely returns. Dark had failed to file his returns for the years 1967-1971 until March 1973, when he learned that he was under investigation by the IRS. At that time, Dark assured the IRS that he would comply with all filing requirements in the future.
Dark’s defense was that his failure to file had not been “willful.” He testified that his financial books and records were simply “not in shape to file a tax return” on the respective due dates, principally because of the complicated and cumbersome nature of his personal accounting system, and that the pressures of his accounting practice and legal studies had distracted him from properly maintaining his books. The jury deliberated only five minutes before returning its verdict of guilty on both counts.
Dark raises numerous claims of error on appeal, most of which are wholly without merit. He contends that the testimony of certain witnesses subpoenaed by the government should have been excluded at trial because the Assistant United States Attorney had instructed the Marshal not to place the returned subpoenas in the ease file in the district court clerk’s office, thereby preventing defense counsel from looking at the case file to find out who was going to testify for the government. The short answer to this claim is that defense counsel was not entitled to know, in advance of trial, who was going to testify for the government. United States v. Conder, 423 F.2d 904, 910 (6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970).
Dark contends that the district judge committed reversible error during jury selection by telling the panel, in the course of explaining the presumption of innocence and burden of proof in a criminal case, that “Neither side has the edge.” Read in context, the remark was apparently calculated to impress upon the prospective jurors that both parties in a criminal case come before the court with equal dignity and that neither should be arbitrarily favored out of prejudice for or against the government or defendants as a class. While perhaps better left unsaid, the remark could not have confused the jury, especially in light of the district judge’s more than adequate explanation of the defendant’s presumption of innocence and the government’s heavy burden of proof in his other comments to the panel during jury selection and in his instructions at the close of the trial.
Dark also argues that the trial judge erred in refusing to order the government to turn over to defense counsel, as “statements” under the Jencks Act, the contents of IRS Special Agent Hollingsworth’s case file after Hollingsworth’s testimony at trial, without at least inspecting the file in camera to determine whether it contained any Jencks material. Agent Hollingsworth’s written case reports are not his “statements” under 18 U.S.C. § 3500(e), and the trial court was under no obligation to examine the file in camera, since there was “no basis for belief that a Jencks Act ‘statement’ existed other than those already furnished defense counsel.” United States v. Nickell, 552 F.2d 684, 687-90 (6th Cir. 1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2233, 56 L.Ed.2d 402 (1978).
Dark’s two remaining claims of error are more troublesome. Both involve actions of the trial court, which, Dark argues, unfairly hampered the presentation of his defense.
Dark sought to introduce in evidence some of his personal financial records in an effort to corroborate his claim that his personal record-keeping system was so complicated that it would have been difficult, if not impossible, to prepare accurate tax returns by the dates required by law. The trial judge ruled that the records were irrelevant .and refused to admit them. We think this was error. The records were plainly relevant to Dark’s defense, lame though it might have been.
The other incident occurred during the prosecutor’s cross-examination of Dark. Dark testified, “I do not think I could have done [the 1973 and 1974 tax returns] under the circumstances under which I was laboring. On the due date my books were not in shape to file a tax return.” At that point, the trial judge interrupted to ask the following question: “Well, the reason your books were not in shape is that you elected to spend time making money off somebody else and not keep your own books up, is that not correct?”
This Court has only recently had occasion to observe that “potential prejudice lurks behind every intrusion into a trial made by a presiding judge” and that, when such intrusion occurs, the judge must “sedulously avoid all appearances of advocacy as to those questions which are ultimately to be submitted to the jury.” United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979). The question propounded by the trial judge here came dangerously close to violating this principle, for it could have created the impression in the minds of the jurors that the trial judge was unsympathetic to Dark’s defense, a matter which was for the jury, and the jury alone, to evaluate.
In light of the overwhelming evidence of Dark’s guilt, however, we do not believe that either the erroneous exclusion of Dark’s financial records or the trial judge’s isolated intrusion into the cross-examination of Dark affected Dark’s substantial rights. Rule 52, Fed.R.Crim.P.
Accordingly, it is Ordered that the judgment of conviction be, and hereby is, Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. | What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
8
] | songer_genapel2 |
KIMBALL v. COMMISSIONER OF INTERNAL REVENUE.
No. 4180.
Circuit Court of Appeals, First Circuit.
Nov. 1, 1946.
Before MAHONEY, GOODRICH (by special assignment), and WOODBURY. Circuit Judges.
Robert C. McKay, of Boston, Mass., for petitioner for review.
Melva M. Graney, Sp. Asst, to the Atty. Gen., of Washington, D. C. (Douglas W.. McGregor, Asst. Atty. Gen., and Sewall Key and J. Louis Monarch, Sp. Asst. to the Atty. Gen., all of Washington, D. C., on the brief), for Commissioner.
PER CURIAM.
This case comes before us on a petition to review a decision of' The Tax Court of the United States which sustained a determination by the Commissioner of Internal Revenue of a deficiency in petitioner’s liability for withholding income tax at the source for the years 1941 and 1942, under § 143(b) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 143(b).
The petitioner is the sole trustee of a trust fund under the will of Annie Bi Webb, late of Salem, Massachusetts, who died in 1925. In Clause 18 of her will, the testatrix left the residue of her property to trustees and authorized them to pay from the net income:
“(c) To Mabel Duncan and Ethel Duncan, now or recently residing at 6 Place St., Sulpice, Paris, an annuity of four hundred dollars, one half to each, and the whole to the survivor for life.
“(d) To the following named persons, annuities for their respective lives, namely: Germaine St. Laurent, eight hundred dollars * *
Both Ethel Duncan and Germaine St. Laurent were citizens of France and resided there in the years 1941 and 1942 and the latter had been in the employ of the testatrix from 1913 to 1925.
The petitioner paid or deposited to the credit of Ethel Duncan and Germaine St. Laurent in each of the years 1941 and 1942 200 and 800 dollars respectively. These amounts were not included in the withholding tax returns as income subject to withholding, because the petitioner claimed that the annual payments to the former constituted a “life annuity” and to the latter both a “private pension” and a “life annuity” paid to citizens and residents of France, and hence were exempt under Article IX(c) of the Convention and Protocol on Double Taxation between the United States and the Republic of France executed April 27, 1932, and effective January 1, 1936. 49 Stat. 3145 (1935.) The Tax Court sustained the action of the Commissioner in refusing to accept this contention and held that the words “life annuities” in the Treaty could reasonably be limited to purchased or contractual annuities and therefore would not include testamentary annuities. It also held that it was unnecessary for it to decide the scope of the term “private pensions” as used in the Treaty because it found that in this case amounts paid to Germaine St. Laurent were not paid as a pension, but that she was simply one of several named beneficiaries under the terms of a trust. It further stated that there was no indication in the will that the payments were to be made for past services nor that an employee-employer relationship had existed between her and the decedent.
Whether or not this was a pension is a question of fact and we are bound by the determination of the Tax Court. Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248; Commissioner v. Scottish American Investment Co., 1944, 323 U.S. 119, 65 S.Ct. 169, 89 L.Ed. 113.
Likewise we are in accord with the reasoning of the Tax Court and its conclusion that the payments made to Ethel Duncan and Germaine St. Laurent were not “life annuitiés” within the meaning of Article IX(c) of the Convention and Protocol on Double Taxation between the United States and France.
The decision of the Tax Court of the-United States is affirmed.
“See. 143. Withholding of tax at source
$ * if. * *
“(b) Nonresident aliens. All persons, in whatever capacity acting, including lessees or mortgagors of real or personal property, fiduciaries, employers, and all officers and employees of the United States, having the control, receipt, custody, disposal, or payment of interest, * * * dividends, rent, salaries, wages, premiums, annuities, compensation, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income (but only to the extent that any of the above items constitutes gross income from sources within the United States), of any nonresident alien individual, * * * shall * * * deduct and withhold from such annual or periodical gains, profits, and. income a tax * *
Article IX- — Convention and Protocol on Double Taxation between the United States and the Republic of Prance.
“The following classes of income paid in one of the contracting States to a corporation of tbe other State, or to a citizen of the latter State residing there, are exempt from tax in the former State: * * * *
“(c) private pensions and life annuities.” | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. | Is the opinion writer identified in the opinion, or was the opinion per curiam? | [
"Signed, with reasons",
"Per curiam, with reasons",
"Not ascertained"
] | [
1
] | songer_opinstat |
SNYDER et al. v. CHARLES LEVINE, Inc.
No. 6305.
United States Court of Appeals for the District of Columbia.
Argued May 6, 1935.
Decided Nov. 4, 1935.
Rehearing Denied Nov. 27, 1935.
Leslie C. Garnett, John J. Wilson, and Frank H. Myers, all of Washington, D. C., for plaintiffs in error.
Alfred M. Schwartz, of Washington, D. C., for defendant in error.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.
VAN ORSDEL, Associate Justice.
This case comes here on writ of error to the municipal court to review a judgment entered against plaintiffs in error in the sum of $80. At the time of the transaction in question, plaintiff in error Snyder was United .States marshal for the District of Columbia, and the Indemnity Insurance Company of North America was surety upon his official bond. The present suit was brought by defendant in error to recover damages alleged to have been suffered when one of the marshal’s deputies in executing a writ of fieri facias issued upon a municipal court judgment against Charles Levine and Ethel Levine, individuals, seized goods and chattels alleged to have belonged at the time to the defendant in error.
Defendant in error gave notice to the marshal that the goods levied upon belonged to it, whereupon the marshal notified the judgment-plaintiff to appear and try the right of property in the seized goods. On hearing the court decided the claim to the goods in favor of the defendant in error. Neither of the plaintiffs in error were present or represented at the trial of the right of property. When the court found that defendant in error Vas entitled to the property, the marshal promptly released it.
This suit was then brought to recover damages claimed to be due as a result of the marshal’s levy and detention of the property. In the trial the marshal sought to prove that the title acquired by the defendant in error from Charles Levine and Ethel Levine was fraudulent and void, and that the property levied upon was in truth and in fact owned by the Levines; that the bill of sale executed to transfer the business to the defendant in error was made to defraud the attaching creditor. The trial court refused to admit evidence on this point on the ground that the judgment returned in the trial of the right of property proceeding was res judicata upon plaintiffs in error. The court accordingly struck out the evidence touching the fraudulent conveyance and entered judgment for the plaintiff.
The sole question involved is whether or not the court below erred in treating the finding in favor of defendant in error, in the trial of the right of property, as res judicata upon the United States marshal and his surety in a subsequent suit against them by plaintiff to recover damages for seizure of the property. The statutory provision respecting the trial of the right of attached property is found in sections 234, 235, and 236 of title 18 of the 1929 D. C. Code. Section 234 provides: “When personal property taken on execution or other process issued by the municipal court is claimed by a person other than the defendant therein, or is claimed by the defendant to be property exempt from execution, and such claimant shall give notice, in writing, to the marshal of his claim, or the defendant shall give notice, in writing, that the property is exempt, the marshal shall notify the plaintiff of such claim and return said notice to the court, and a trial of said right of property, or said question of exemption, shall be had before said court.” The manner of docketing and trial and the judgment to be entered therein are set forth in sections 235 and 236.
As we have observed, the marshal followed the directions of the statute and returned the notice to the court for the proceedings thereafter had on the right to the attached property. Our statutory procedure has been clearly defined in the case of Bond v. Carter Hardware Company, 15 App.D.C. 72, as follows: “The notice of claim of property given to the constable, as required, may in a certain sense, and for certain purposes, after the justice is notified by the constable and the former has entered the claim upon his docket, to be tried, be regarded as a suit or action. But it clearly can not be regarded as a suit that shall not be commenced before a justice of the peace without first giving security for costs. After the claimant has given the notice of claim to the constable the latter, being the party that can only proceed at his peril, then becomes the active party in bringing the plaintiff and claimant before the justice for the trial of the right of property; and until this is done and the right of property determined, the hands of the constable are stayed and the levy made by him is suspended. Hence the statute has provided that the constable shall notify the plaintiff of the claim, and also notify both plaintiff and the claimant before what justice, and at what time and place a trial of the right of property shall be had. The statute is mainly intended, by summary means, to indemnify and save harmless the officer charged with the execution of the writ or process, and to protect the plaintiff who may direct the levy upon or seizure of the property, and also to uphold and maintain the power and jurisdiction of the justice, in making his process effective, but at the same time to avoid doing injury "to third persons. * * * Under this statute many decisions have been made, but in none of them do we find it suggested that the proceeding authorized and directed by the statute was to be regarded as an ordinary suit or action- instituted by the claimant of the property against either the plaintiff in the execution, or the officer making the levy. The proceeding, upon the application of the officer, is treated as in the nature of an interpleader, as between the parties; and hence the act is called an interpleader act.”
It is clear that the object of the trial of the right of property is to determine by a summary proceeding between the time of the levy of an execution and the sale of the property whether the marshal should sell or return the seized chattels. It is an intervening remedy to avoid injury to third persons and to enable persons deprived of possession of a simple and speedy remedy of regaining possession. However conclusive a judgment of this kind may be as between the claimant and the judgment creditor, it' cannot be held to have any conclusive or binding effect upon the marshal or the judgment debtor. As was said in Sponenbarger v. Lemert, 23 Kan. 55, 63, “This kind of suit is a summary proceeding before a justice of the peace for the trial of the right to property which may amount in value to several hundreds or even thousands of dollars, and neither the judgment debtor (the supposed’ owner of the property) nor the constable who has seized it is made a party to the action, but the proceeding is had merely between the claimant and the judgment creditor.”
We are of the opinion that the court was in error in holding the judgment as to the right of property res judicata upon the marshal and his surety. They were not parties to the action, and regardless of the judgment entered therein the marshal and his surety may defend in an action for damages on the ground of a fraudulent transfer of the property, to avoid execution, prior to the levy made by the marshal thereon. The only ground upon which the action for damages can be founded is upon the wrongful levy made by the marshal, hence a fraudulent transfer, to avoid execution, becomes a most important element of defense for the marshal and his bondsman.
The judgment is reversed with costs. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. | What is the number of judges who voted in favor of the disposition favored by the majority? | [] | [
5
] | songer_majvotes |
RIVERA v. UNITED STATES.
No. 3995.
Circuit Court of Appeals, First Circuit
Aug. 29, 1945.
B. F. Sanchez Castaño, of San Juan, Puerto Rico, for appellant.
Philip F. Herrick, U. S. Atty., of San Juan, Puerto Rico (Francisco Ponsa Feliu and Pascual Amado, Rivera, Asst. U. S. Attys., both of San Juan, Puerto Rico, on the brief), for appellee.
Before MAHONEY, Circuit Judge, and PETERS and FORD, District Judges.
PETERS, District Judge.
Appeal from a judgment of the United States District Court for Puerto Rico adjudging the defendant guilty of violations of the Federal Firearms Act, 52 Stat. 1250, 15 U.S.C.A. § 902(e). The indictment contains two counts, one for transporting a firearm within the Territory of Puerto Rico, the defendant having been previously convicted of a crime of violence, i.e., aggravated assault and battery; and the other for transporting ammunition for firearms within the territory, after the same conviction.
The defendant finds fault with the indictment on the ground that it does not charge him with an offense; claiming that transportation in interstate commerce is not charged by an allegation of transportation “in and within the territory of Puerto Rico”; and that in any event the Act should not be held to apply to transportation wholly within the territory, since Congress did not so intend, having established a Puerto Rican Legislature to legislate in such local matters.
That the Act in question, like the White Slave Traffic Act, 18 U.S.C.A. § 397 et seq., applies to transportation wholly within Puerto Rico, we have no doubt. See Crespo v. United States, 1 Cir., 1945, 151 F.2d 44.
That the indictment sufficiently describes in each of the two counts an offense prohibited by the statute, is equally certain. The Act makes it “unlawful for any person * * * who has been convicted of a crime of violence * * * to * * * transport * * * in interstate * * * commerce any firearm or ammunition.” By § 1 of the Act, 15 U.S.C.A. § 901 interstate commerce includes commerce “within any Territory or possession.”
It is urged in behalf of the defendant that he could not be properly convicted of more than one offense because the ammunition he was charged with transporting was carried in the pistol which he was separately charged with transporting, and used with it when he shot a man named Marcano with three or four shots.
This contention cannot be sustained. It is based on much the same reasoning as was advanced by the defendant in the Crespo case above mentioned, where several prostitutes were transported together. As we said in that case: “As to whether there is a plurality of offenses, ‘the test is whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be.’ ”
The second count here is equivalent to a second indictment. It is clear that proof of transporting ammunition would not sustain a charge of transporting firearms, and vice versa.
It is contended that the evidence was not sufficient to sustain a conviction. That contention is based partly on the fact that there was no evidence that either the pistol or the ammunition was brought into Puerto Rico in interstate commerce after the Act became effective. That was not important. It was not the introduction, covered by § 2(f) of the Act, that was involved, but the transportation solely. As to the transportation, the evidence is ample that the defendant, having the loaded revolver, traveled to the place where it was used arid proceeded to another place, having the revolver and a part of the ammunition — all in Puerto Rico.
The judgment of the District Court is affirmed. | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". | Did the court rule that there was insufficient evidence for conviction? | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_suffic |
UNITED STATES of America, Appellee, v. Manuel JIMENEZ-OTERO, Defendant, Appellant.
No. 89-1562.
United States Court of Appeals, First Circuit.
Heard March 6, 1990.
Decided March 14, 1990.
Gabriel Hernandez Rivera, with whom Feldstein, Gelpi, Hernandez & Gotay, Old San Juan, P.R., was on brief for defendant, appellant.
Warren Vazquez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S.
Before BREYER and SELYA, Circuit Judges, and RE, Judge.
The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation.
SELYA, Circuit Judge.
This is a single-issue sentencing appeal wherein a defendant who pled guilty to a charge of threatening a federal officer, in violation of 18 U.S.C. § 115(a), (b)(4), challenges the district court’s 6-point adjustment in its computation of defendant’s total offense level. The court made the upward adjustment because it found that the defendant had engaged in conduct “evidencing an intent to carry out [the] threat,” U.S.S.G. § 2A6.1(b)(l), by brandishing a screwdriver during the crime’s commission.
The circumstances are as follows. On September 28, 1988, defendant-appellant Manuel Jimenez-Otero (Jimenez) was charged with having verbally threatened to murder a postal service employee engaged in the performance of his official duties. Subsequently, a non-binding plea agreement was entered, Fed.R.Crim.P. 11(e)(1)(B), in which the government agreed to reduce the charge from “threat to murder” to “threat to assault.” Jimenez agreed to plead guilty to the reduced charge. The parties stipulated that they believed the applicable sentencing guideline should be computed at a base offense level of 12, U.S.S.G. § 2A6.1(a), to be decreased by 4 levels since defendant’s conduct involved a single instance evidencing little or no deliberation, U.S.S.G. § 2A6.1(b)(2), and further reduced by 2 more levels for acceptance of responsibility, U.S.S.G. § 3El.l(a). (A base offense level of 6 and a criminal history category of I would produce a sentencing range of 0 to 6 months).
Defendant pled guilty to the reduced charge. Pursuant to standard convention, see Fed.R.Crim.P. 32(c), the court ordered a presentence report (PSI Report). The Report did not recommend the downward adjustments foreseen by the parties. Rather, the probation officer suggested an increase of 6 levels on the ground that the defendant had brandished a dangerous weapon — a screwdriver — during the commission of the crime Inasmuch as this conduct called for a 6-level upward adjustment, see infra, the probation officer advised computing the sentence at a total offense level of 18, resulting in a guideline imprisonment range of 27-33 months. The Report concluded with the opinion that there was no information that would warrant departure from the guidelines.
At the sentencing hearing, the court granted defendant a 2-point reduction for acceptance of responsibility (not envisioned by the probation officer) but increased the base offense level by 6 because the “defendant engaged in conduct evidencing an intent to carry out a threat ... [by] brandishing] a dangerous weapon.” See U.S. S.G. § 2A6.1(b)(l). The resultant total offense level (16) produced a 21-27 month spread. The court sentenced defendant at the nadir of the guideline range, 21 months in prison.
Jimenez appeals on the basis that the district court incorrectly applied the guidelines. See 18 U.S.C. § 3742(a)(2). We review the district court’s fact-based determination regarding defendant’s purpose in holding the screwdriver only for clear error. See 18 U.S.C. § 3742(e) (court of appeals “shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts”); United States v. Royer, 895 F.2d 28, 29-30 (1st Cir.1990); United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir.1989) (per curiam); United States v. Zayas, 876 F.2d 1057, 1060 (1st Cir.1989); United States v. Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989). The “clearly erroneous” rule applies “in full flower” to inferences drawn from documentary evidence and/or agreed facts. E.g., In re Tully, 818 F.2d 106, 109 (1st Cir.1987). It is plainly reasonable to think of a screwdriver as a “dangerous weapon” in the context of this offense and therefore to conclude the wielder has “engaged in conduct evidencing an intent to carry out a threat.” U.S. S.G. § 2A6.1(b)(l). Accordingly, we cannot alter the trial court’s interpretation of the undisputed facts. After all, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).
Nor can we say that the plea agreement made a dispositive difference. Appellant concedes that the colloquy ordained under Fed.R.Crim.P. 11(c) contained all of the required advice, warnings, and caveats. Moreover, the law is clear that, where a non-binding plea agreement is struck, the district court is constrained neither by the United States Attorney’s sentencing recommendation, see U.S.S.G. § 6Bl.l(b) (policy statement), nor by stipulations of fact accompanying the plea contract, U.S.S.G. § 6B1.4(d) (policy statement).
Defendant also argues that there were “mitigating circumstances” such that the court should have departed downward in imposing sentence. We have held before, and today reaffirm, that a criminal defendant cannot normally ground an appeal on such a theory. See United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989). This case is no exception to that rule.
We need go no further. Although the district judge might have elected to view the scenario more congenially to defendant, she was not obliged to do so. Because the court’s recension of the evidence was plausible, we cannot say that its conclusions were unfounded or clearly erroneous. The judgment of conviction and the concomitant sentence are, therefore, Affirmed.
. Defendant did not dispute that he was holding the screwdriver at the time. He argued instead that it was part of his usual equipage as a maintenance man and that he was not carrying it in a threatening manner. | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. | What party initiated the appeal? | [
"Original plaintiff",
"Original defendant",
"Federal agency representing plaintiff",
"Federal agency representing defendant",
"Intervenor",
"Not applicable",
"Not ascertained"
] | [
1
] | songer_initiate |
Melvin LANDRY, Plaintiff-Appellant, v. THE COOPER/T. SMITH STEVEDORING COMPANY, INC., et al., Defendants-Appellees.
No. 88-3388.
United States Court of Appeals, Fifth Circuit.
Aug. 22, 1989.
Lyman L. Jones, Jr., New Orleans, La., for plaintiff-appellant.
David E. Walker, Walker, Bordelon, Hamlin & Theriot, New Orleans, La., for Cooper/T. Smith, etc.
David H. Seelig, Seelig, Cosse, Frisch-hertz & Poulliard, New Orleans, La., for The Dock Loaders & Freight Cars & Barge.
Before THORNBERRY, WILLIAMS and DAVIS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Melvin Landry appeals a judgment notwithstanding the verdict in favor of his employer and his union. In the court below, Landry contended that his employer had violated the terms of the collective bargaining agreement by revoking his registration card, and that the union had breached its duty of fair representation in prosecuting his grievances. After a jury verdict in favor of Landry on both claims, the district court entered judgment for the defendants. We affirm the judgment notwithstanding the verdict on the ground that Landry failed to introduce sufficient evidence to support a finding that the union’s representation in his grievance was not fair, which is a prerequisite for recovery against both the employer and the union.
I. Background
A. Contractual Relationship Between the Parties
Melvin Landry, a freight handler in the Port of New Orleans, is a member of appel-lee Dock Loaders and Unloaders of Freight Cars and Barges, Local Union 854 of the International Longshoremen’s Association, AFL-CIO (“Local 854” or “the union”). Appellee Cooper/T. Smith Stevedoring Company (“Cooper/Smith”) operates in the Port of New Orleans, hiring members of the union to load and unload freight. Cooper/Smith is a member of appellee New Orleans Steamship Association (“NOSSA”), a trade group of companies doing business in the port. NOSSA is the bargaining agent for shipping and stevedoring companies in the port. At the time of the incidents giving rise to this lawsuit, the terms and conditions of freight handlers’ employment with the New Orleans stevedoring companies was governed by the 1983-1986 Deep-Sea Agreement, a collective bargaining agreement between Local 854 and NOSSA.
Under the agreement, freight handlers who worked a certain number of hours during a qualifying year received a registration card (also known as a “G” card) that entitled them to a hiring preference at the Waterfront Employment Center, where the freight handlers would appear for morning “shape-up” to be hired for the day by stevedoring companies. Employees eligible for a registration card also participated in a Guaranteed Annual Income Plan, which provided partial compensation to freight handlers when work was not available. Melvin Landry possessed a “G” card. Under the collective bargaining agreement, a registration card could be revoked by NOSSA for “just cause.”
The collective bargaining agreement contained grievance procedures that provided the exclusive mechanism to settle employment disputes between union members and the stevedoring companies. At each step in the process, the complaining freight handler was represented by the union. The first step involved an immediate discussion between a representative of the employer and of the union. If a satisfactory settlement was not reached, either side could refer the matter to the Permanent Disputes Committee, consisting of two representatives of NOSSA and two Local 854 officials. Under Step Two of the grievance procedures, the Permanent Disputes Committee conducted a hearing. If the dispute was not resolved at this level, the employer or the union could refer the grievance to binding arbitration by an independent arbitrator, which was the third and final step in the grievance process.
B. Landry’s Disciplinary Citations
On several occasions, Melvin Landry was cited for contract violations while in the employ of Cooper/Smith. In May, 1978, Landry was involved in a physical altercation with a Cooper/Smith foreman. After a Step Two Permanent Disputes Committee hearing, Landry’s registration card was suspended for sixty days.
In January and April, 1983, Landry and approximately twenty-five other workers were cited for “poor production” by Cooper/Smith. These citations were part of a larger controversy surrounding an attempt by NOSSA and its members to increase the production of the freight handlers in the Port of New Orleans. Local 854 filed a grievance on behalf of its members who were cited. The grievance progressed to arbitration before an independent arbitrator in June, 1983. That arbitration was adjourned on its first day because the arbitrator was called away on a family emergency. The union did not attempt to reschedule the arbitration, despite demands from some of its members, including Landry. Thus, the poor production citations remained on Landry’s employment record. In a letter accompanying the citations, Landry was informed that any future contract violations would result in further disciplinary action, which could include permanent revocation of his registration card.
In January, 1985, Landry was again cited for a violation of the labor contract by a Cooper/Smith supervisor. This incident involved the refusal of Landry and one other worker to work on a rainy day. Twenty-three other union members on the same work crew went to work without protest. A union vice-president on the scene attempted to settle the dispute through a Step One discussion with the Cooper/Smith supervisor. The union representative, Ray Worthy, proposed that two other men work in place of Landry and the second protesting employee, with the understanding that Landry and his co-worker would not be disciplined and would not seek any pay for that day. Although Worthy and Landry left the scene thinking that a settlement had been reached, Landry was later cited for the incident.
On February 18, 1985, Landry and the union were notified that Landry’s registration card would be picked up because he had accumulated three contract violations. Local 854 grieved this action on behalf of Landry before the Permanent Disputes Committee at a Step Two proceeding. The Committee met twice, with Landry present, to discuss the matter, but deadlocked in its vote. Landry turned in his card at the second meeting.
Local 854 did not request arbitration to regain Landry’s “G” card. Instead, the union president, Tyrone Webster, persistently lobbied NOSSA officials informally, asking them to return the card so that Landry would be allowed to work and support his family. On May 15, 1985, the Permanent Disputes Committee met and agreed to reduce the revocation to a 72-day suspension, which would allow Landry to pick up his card immediately and return to work. Landry was present at the meeting.
Two days later, Landry, accompanied by Tyrone Webster, picked up his registration card at the Waterfront Employment Center. Landry was told he needed to sign an agreement in order to regain his card. After reading the settlement agreement, Landry signed the document. The agreement stated that as a settlement of Landry’s prior grievances, the revocation of Landry’s card was reduced to a 72-day suspension. Landry was able to return to work as of May 15, 1985.
C. Prior Proceedings
In August, 1985, Landry filed complaint against Cooper/Smith, NOSSA, and Local 854. Landry alleged that Cooper/Smith and NOSSA had wrongfully revoked his registration card under the collective bargaining agreement. Landry also contended that the union had violated its duty of fair representation in processing his grievances.
The case proceeded to a jury trial in March, 1988. The district court reserved a ruling on the defendants’ motions for a directed verdict. The jury returned a verdict in favor of Landry, finding that Landry’s registration card had been wrongfully revoked and that Local 854 had breached its duty of fair representation. The jury also rejected as a defense that Landry had signed a binding settlement agreement. The jury awarded $27,500 in damages, which was apportioned 45 percent to Cooper/Smith, 45 percent to NOSSA, and 10 percent to Local 854.
The district court then granted the defendants’ motion for judgment notwithstanding the verdict (JNOV), and entered a judgment in favor of Cooper/Smith, NOSSA, and Local 854. The court determined that the great weight of the evidence established that Landry’s acceptance of the written agreement was a final settlement of his claim that the revocation of his registration card was in violation of the labor contract. The court also concluded that the union had fulfilled its duty to represent Landry fairly in the grievance proceedings. Landry appeals.
II. Standard of Review
A judgment notwithstanding the verdict is proper
only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable [people] could not arrive at a contrary verdict, viewing the facts in the light most favorable to the party against whom the motion is made, and giving that party the advantage of every fair and reasonable inference which the evidence justifies.
Harwood and Assoc., Inc. v. Texas Bank and Trust, 654 F.2d 1073, 1076 (5th Cir. Unit A, Sept. 1981) (citing Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc)). There must be a “conflict in substantial evidence,” however, to create a jury question; a mere scintilla of proof is insufficient. Boeing, 411 F.2d at 375. We apply the same standard to review a JNOV on appeal. Dawsey v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir.1986).
III. Landry’s Interrelated Claims
A. The “Hybrid § 301/Fair Representation Claim” ,
Federal jurisdiction over Landry’s claims arises from two different sources. Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, provides an employee with a federal cause of action against his employer for breach of a collective bargaining agreement. See Smith v. Evening News Assoc., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). An employee’s cause of action against his union for breach of the duty of fair representation is implied by the courts from the statutory scheme of federal labor law. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
These two separate causes of action, however, are “inextricably interdependent.” Del Costello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983).
The interdependency arises from the nature of the collective bargaining agreement. If the arbitration and grievance procedure is the exclusive and final remedy for breach of the collective bargaining agreement, the employee may not sue his employer under § 301 until he has exhausted the procedure. Further, he is bound by the procedure’s result unless he proves the union breached its duty of fair representation.
Daigle v. Gulf State Utility Co., 794 F.2d 974, 977 (5th Cir.), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986) (citations omitted) (emphasis added).
A breach by a union of its duty of fair representation, then, provides an exception to the general rule that courts will not entertain challenges to an arbitral decision or a grievance settlement when the collective bargaining agreement specifies that such a resolution is final. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 1058, 47 L.Ed.2d 231 (1976); Bache v. American Telephone and Telegraph, 840 F.2d 283, 289 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 219, 102 L.Ed.2d 210 (1988). The hybrid § 301/fair representation suit “amount[s] to a direct challenge to the private settlement of disputes under the collective bargaining agreement.” DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291 (quoting United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66, 101 S.Ct. 1559, 1566, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring in judgment)). To overcome the bar of finality, however, an employee must establish that his union’s breach of its duty of fair representation “seriously undermine[d] the integrity of the [grievance] process.” Hines, 424 U.S. at 567, 96 S.Ct. at 1058. See also United Parcel Service, 451 U.S. at 61, 101 S.Ct. at 1563.
B. Finality of the Separate Signed Agreement
The settlement of Landry’s grievance, which allowed him to regain his registration card after a 72-day suspension, resulted from negotiations at a Step Two grievance proceeding pursuant to the collective bargaining agreement. The grievance settlement was embodied, however, in a discrete written agreement signed by Landry. Cooper/Smith and NOSSA suggest that this separate agreement is absolutely final without regard to whether Local 854 breached its duty of fair representation, because Landry expressly agreed to accept the return of his “G” card as a settlement of his prior grievances. In effect, they argue for an exception to the rule that a union’s breach of the duty of fair representation may open a final grievance settlement, which would apply when the grievant specifically consents to the settlement.
The parties and the court below focused much of their attention on the finality of the signed settlement agreement. We do not need to reach this question, however, to decide Landry’s appeal. Instead, we conclude that the question of whether Local 854 breached its duty of fair representation is the controlling issue.
The settlement agreement states only that it resolves Landry’s grievances against Cooper/Smith and NOSSA. It does not purport to settle Landry’s duty of fair representation claim against Local 854, which had not even been raised at the time the agreement was signed. Accordingly, even assuming that the agreement cannot be challenged, it would resolve only one prong of Landry’s interrelated claims. We would then have to address Landry’s contention that the union breached its duty of fair representation.
This two-step analysis becomes unnecessary, however, if we determine as an initial matter that Local 854 did not breach its duty to represent Landry fairly. Landry must establish this breach to prevail against the union and his employer; “the ‘indispensable predicate’ for a § 301 action in this situation is a fair representation claim against the union.” Daigle, 794 F.2d at 977 (quoting United Parcel Service, 451 U.S. at 62, 101 S.Ct. at 1564). See also Hines, 424 U.S. at 567, 96 S.Ct. at 1058; Bache, 840 F.2d at 289. If Landry did not introduce sufficient evidence to establish the union’s breach, the JNOV was proper for both of his claims. Accordingly, without deciding the independent finality of the signed settlement agreement, we turn to the dispositive question of whether Local 854 breached its duty of fair representation.
IV. The Union’s Duty of Fair Representation
A. Scope of the Duty
A union must represent all employees fairly in its enforcement of a collective bargaining agreement. This duty of fair representation stands “as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca, 386 U.S. at 182, 87 S.Ct. at 912.
A union retains considerable discretion, however, in processing the grievances of its members. Cox v. C.H. Masland & Sons, 607 F.2d 138, 142 (5th Cir.1979); Turner v. Air Transport Dispatchers Assoc., 468 F.2d 297, 299 (5th Cir.1972). An employee has no absolute right to have his grievance taken to arbitration, Vaca, 386 U.S. at 191, 87 S.Ct. at 917, or to any other level of the grievance process. Turner, 468 F.2d at 300. Instead, a breach of the duty of fair representation occurs “only when the union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190, 87 S.Ct. at 916.
Under this test, a union may not “arbitrarily ignore a meritorious grievance or process it in perfunctory fashion.” Id. at 191, 87 S.Ct. at 917. Thus, the duty of fair representation imposes an obligation for a union to investigate a grievance in good faith. Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 347 (5th Cir.1980). A union also has an obligation to prosecute a grievance “with reasonable diligence unless it decided in good faith that the grievance lacked merit or for some other reason should not be pursued.” Hammons v. Adams, 783 F.2d 597, 602 (5th Cir.1986).
A union does not breach its duty of fair representation, however, through simple negligence or a mistake in judgment. See Vaca, 386 U.S. at 192-93, 87 S.Ct. at 918; Connally v. Transcon Lines, 583 F.2d 199, 203 (5th Cir.1978). We have upheld a determination that a union did not breach its duty when its conduct in processing an employee’s grievance was “less than enthusiastic” and “not perfect.” Connally, 583 F.2d at 202-203. The critical question is whether a union’s conduct was arbitrary, discriminatory, or in bad faith, so that it undermined the fairness or integrity of the grievance process. See Hines, 424 U.S. at 567-69, 96 S.Ct. at 1058.
B. Local 854’s Actions Prosecuting Landry’s Grievances
The revocation of Landry’s registration card resulted from his accumulation of three disciplinary citations. Two citations arose from the 1983 dispute over production quotas, and were grieved together. The third incident, which immediately preceded the revocation of Landry’s registration card, involved Landry’s 1985 refusal to work in the rain.
We have carefully reviewed the evidence of the union’s conduct in both 1983 and 1985. While mindful of the deferential standard of review due the jury’s verdict, we conclude that the evidence introduced at trial is insufficient to establish that the union’s actions in processing Landry’s grievances were “arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190, 87 S.Ct. at 916. We affirm the judgment NOV on this ground.
1. The 1985 Rain Incident
We start with the 1985 rain incident, which, as Landry’s third disciplinary citation, triggered the revocation of his “G” card. Landry contends that Local 854 breached its duty of fair representation in failing to investigate this grievance adequately. He also faults the union for refusing to resolve the dispute on the merits through arbitration.
In support of his claim, Landry notes that the evidence established that the union president, Tyrone Webster, declined to meet with Landry to discuss his grievance. Landry testified that Webster stated he was “too busy” for such a meeting. Landry also points to the fact that NOSSA officials testified that they agreed to return Landry’s card primarily because union representatives lobbied them on “humanitarian grounds,” stating that Landry had suffered enough and needed to return to work to support his family. In seeking the return of Landry’s card, Local 854 officials did not focus on the merits of Landry’s grievance.
Even when this evidence is considered in the light most favorable to Landry, however, it is not sufficient to support a conclusion that Local 854 breached its duty of fair representation. The failure of a union president to meet with a grievant does not provide sufficient evidence to establish that the union did not investigate a claim adequately. In fact, it is undisputed that union vice-president Ray Worthy was present on the docks at the time of the rain incident. Worthy was able to determine the prevailing weather conditions. He questioned the protesting workers and the Cooper/Smith supervisor. Worthy also discovered that 23 of the 25 workers on the crew went to work without protest; Landry was one of two workers who refused to work because of the rain.
Under these circumstances, Local 854 may well have concluded that a humanitarian appeal was more likely to succeed in regaining Landry’s card than would an arbitration based on the merits of Landry’s claim. The decision not to arbitrate the grievance on its merits was clearly within the union’s discretion. Vaca, 386 U.S. at 191-95, 87 S.Ct. at 917-19.
The insufficiency of evidence to support Landry’s contention that Local 854 breached its duty of fair representation becomes even more apparent when one examines the uncontradicted evidence regarding the actions the union did take to prosecute Landry’s grievance. Ray Worthy immediately took up Landry’s cause at a Step One negotiation, attempting to avert a disciplinary citation for the rain incident. When that approach proved unsuccessful, Local 854 supported Landry at a Step Two meeting before the Disputes Resolution Committee, with both union representatives on the Committee voting in Landry’s favor. When Landry’s registration card was nevertheless revoked under the “just cause” provision of the collective bargaining agreement, the Union repeatedly requested that NOSSA officials return the card. Ultimately, a settlement was reached so that the revocation of Landry’s card was reduced to a 72-day suspension, and he was allowed to return to work.
In short, the evidence conclusively established that Local 854 diligently pursued Landry’s grievance, albeit not on the grounds or with the tactics Landry desired. Cf. Hart v. Nat’l Homes Corp., 668 F.2d 791, 794 (5th Cir.1982). The union’s duty of fair representation, however, was not “a ministerial one of satisfying each employee’s demands at all costs.” Cox, 607 F.2d at 142.
Landry’s dispute with Local 854 over the rain incident is, at bottom, a disagreement over tactics and discretionary decisions. The evidence in support of Landry’s claim does not indicate any arbitrary, discriminatory, or bad faith conduct by the union. Thus, the evidence is insufficient to establish that Local 854 breached its duty of fair representation in grieving Landry’s disciplinary citation for refusing to work in the rain.
2. The 1983 Poor Production Citations
Landry also contends that Local 854 breached its duty of fair representation in failing to reschedule the arbitration over the poor production citations issued to 25 union members, including Landry, in 1983. In support of his claim, Landry notes that union officials did not respond to repeated requests by the members to take this matter to arbitration. Landry testified that when Tyrone Webster was running for union president in 1983, he promised the workers that he would restart the arbitration. Webster did not do so when elected. The testimony also indicated that union officials did not inform the members of the reasons for their decision to abandon the arbitration over the poor production citations. Finally, the evidence established that the collective bargaining agreement provided for hourly wages for freight handlers. Landry and other union members testified that they interpreted this provision as precluding production quotas set by the employer.
The union president, Tyrone Webster, conceded that he did not adequately explain to union members why the arbitration was not rescheduled. Webster testified, however, that Local 854 had decided that continued arbitration over the poor production issue would not be in the best interest of all of its members. At the time of this dispute, production in the Port of New Orleans was declining to the extent that New Orleans-based companies and workers were losing business to other, more productive, ports. Union officials decided that an arbitration over poor production would exacerbate this problem by bringing negative publicity to the port and the union. The union feared that the ultimate result of arbitration would be less work for its members.
The testimony of a NOSSA official, Win Niemand, confirmed that the New Orleans port had production problems which led to declining stevedoring business. Niemand testified that NOSSA discussed this problem with union officials, seeking their cooperation to increase production in order to avert a further loss of work. On the question of whether the attempt to introduce production quotas violated the collective bargaining agreement, Neimand stated that NOSSA took the firm position that the employers had the right to demand a certain level of production pursuant to the management rights clause of the Agreement.
Under these circumstances, Local 854 was well within its discretionary right in deciding not to arbitrate the poor production citations. Courts have long recognized that a union must, at times, subordinate the interests of individual employees to the collective interest of all union members. Vaca, 386 U.S. at 182, 87 S.Ct. at 912; Tedford v. Peabody Coal Co., 533 F.2d 952, 957 (5th Cir.1976). In addition, a union may act according to its own reasonable interpretation of the collective bargaining agreement. Local 854 could recognize an interpretation allowing the employer to set acceptable production quotas under the management rights clause. A union is not required to advocate a different interpretation preferred by some individual union members. Bache, 840 F.2d at 290.
The evidence offered by Landry does not refute that there was a production problem in the Port of New Orleans which adversely affected the stevedoring companies and the freight handlers. Instead, Landry contends that the fact that Tyrone Webster broke his promise to restart arbitration and did not explain to union members why the union had abandoned the poor production issue is sufficient to establish a breach of the duty of fair representation. This conduct by union officials may fall short of the best in contract administration, but the duty of fair representation does not reach all less than perfect behavior. Connally, 583 F.2d at 203. See also Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1126-27 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980) (A union did not breach its duty of fair representation by informing an employee that his grievance had been rejected by an arbitrator, when in fact it had been withdrawn). Instead, the duty is breached only by conduct that is arbitrary, discriminatory, or in bad faith.
Under this standard, “a union may refuse to process a grievance or handle the grievance in a particular manner for a multitude of reasons,” so long as a union acts in good faith and there is some nonarbi-trary basis for its decision. Griffin v. Int’l Union, United Automobile, Aerospace, and Agricultural Implement Workers, 469 F.2d 181, 183 (4th Cir.1972). The overwhelming evidence established that Local 854 did not resume the arbitration over the poor production citations because it thought such a step would not enhance the greater good of all union members. This decision cannot be considered arbitrary, and there is no evidence that it was motivated by ill will toward Landry or discriminatory motives. The evidence is therefore insufficient to establish that the union breached its duty of fair representation in refusing to arbitrate Landry’s earlier poor production citations.
V. Conclusion
The evidence conclusively establishes that Local 854 actively prosecuted Landry’s grievance, with no indication of bias or unfairness, when NOSSA revoked Landry’s registration card after his 1985 refusal to work in the rain. The overwhelming evidence also indicates that the union declined to reschedule the arbitration over Landry’s 1983 poor production citations because it feared such an action would contribute to the declining business in the Port of New Orleans, and thus would not be in the best interest of all union members. Landry takes issue with certain tactics adopted by Local 854, including its failure to explain its decision to abandon the poor production arbitration to the union members. But there is no evidence of arbitrary, discriminatory, or bad faith conduct by the union in prosecuting any of Landry’s grievances. The evidence is therefore not sufficient to establish that the union breached its duty of fair representation, which is the critical element of Landry’s claim against the union and his employer. The judgment notwithstanding the verdict entered by the district court must be affirmed.
AFFIRMED.
. As is the usual circumstance in collective bargaining agreements, the contract did not define "just cause.” A NOSSA official testified that the Association followed a typical policy of progressive discipline, attempting to impose a punishment that was consistent with the severity of the offense. NOSSA would impose a more serious punishment when a worker had accumulated several disciplinary citations.
. The collective bargaining agreement contained a rain clause, which allowed an employer to work men in the rain if the workers were either suitably sheltered or furnished with rain gear. There was conflicting testimony at trial as to whether appropriate protection was offered when Landry refused to work. The rain clause also specified that if freight handlers were prevented from working by rain, they were entitled to a minimum of two hours’ pay for the day.
. Landry testified at trial that he believed when he turned in his card that his working privileges were being temporarily suspended. Other parties present at the meeting testified that this action was in fact a permanent revocation of Landry's card. A settlement agreement later signed by Landry also indicated that his registration card had been permanently revoked.
On appeal, Landry does not contend that the original action was intended only as a suspension of his card. Instead, his brief characterizes this step as a revocation.
. DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983).
. We note some authority contrary to the argument advanced by Cooper/Smith and NOSSA. In Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir.1973), this Court determined that a settlement agreement signed by the complaining employee could be subject to challenge if the union breached its duty of fair representation in negotiating the settlement. We concluded that the question of the employee’s consent to the negotiated settlement "did not belong in the case as a determinative issue.” 483 F.2d at 114.
. Article XIV(a) of the Deep-Sea Agreement stated: “Except as specifically restricted by express language of this contract, management shall have the right to direct the performance of work.” | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). | This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? | [
"not ascertained",
"poor + wards of state",
"presumed poor",
"presumed wealthy",
"clear indication of wealth in opinion",
"other - above poverty line but not clearly wealthy"
] | [
5
] | songer_appel1_7_5 |
NOERR MOTOR FREIGHT, INC., et al., Appellants in No. 12750, v. EASTERN RAILROAD PRESIDENTS CONFERENCE et al., Appellants in No. 12751.
Nos. 12750, 12751.
United States Court of Appeals Third Circuit.
Argued June 8, 1959.
Decided Dec. 10, 1959.
Biggs, Chief Judge, dissented.
Harold E. Kohn, Philadelphia, Pa., (Philip P. Kalodner, Aaron M. Fine, Philadelphia, Pa., Dilworth, Paxson, Kalish, Kohn & Dilks, Philadelphia, Pa., on the brief), for plaintiffs.
Daniel Mungall, Jr., Philadelphia, Pa.. (Seth W. Watson, Jr., Philadelphia, Pa., on the brief), for Main Cent. R. Co.
Philip Price, Philadelphia, Pa. (Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., Hughes, Hubbard, Blair & Reed, New York City, Barnes, Dechert, Price, Myers & Rhoads, Harold B. Borne-mann, Philadelphia, Pa., Dennis P. Donovan, New York City, Drinker, Biddle & Reath, Philadelphia, Pa., Carl E. Glock, Pittsburgh, Pa., James B. Anderson, Montgomery, McCracken, Walker & Rhoads, Morgan, Lewis & Bockius, Daniel Mungall, Jr., Cornelius C. O’Brien, Jr., Philadelphia, Pa., T. W. Pomeroy, Jr., Pittsburgh, Pa., Paul Maloney, Saul, Ewing, Remide & Saul, Philadelphia, Pa., on the brief), for defendants.
Before BIGGS, Chief Judge, and MCLAUGHLIN and STALEY, Circuit Judges.
PER CURIAM.
In this antitrust action for an injunction and treble damages, forty-one long distance trucking companies and their trade association, Pennsylvania Motor 'Truck Association, sued twenty-four major eastern railroads, Eastern Railroad Presidents Conference and Carl Byoir Associates, Inc. a New York corporation, the public relations agency for the Conference.
Plaintiffs charged in their complaint (filed April 30, 1953) inter alia, that in or about May, 1949, the defendant Railroads embarked upon an illegal conspiracy, in violation of the civil and criminal provisions of the antitrust laws of the United States, aimed at destroying the plaintiffs and those similarly situated as competitors in the field of the hauling of freight, and at carving out exclusive, monopolistic spheres of operation in the freight transportation business of the United States, so that the railroads would have a monopoly on freight hauling in interstate commerce; that the defendant Railroads worked for those ends through the defendant Conference; that the latter retained defendant Byoir as publicity agent to carry said conspiracy into effect; that thereafter the Conference, its committees, members thereof, the defendant Railroads, their presidents and trustees and other individual defendants and Byoir, with divers other persons unknown to plaintiffs, have acted in combination and concert to obtain the objectives of the conspiracy. The means used are detailed in the complaint; a continuing conspiracy to the date of the complaint is alleged; damage to each of the plaintiffs is asserted, irreparable, continuing injury stated and an injunction asked. Defendants denied the charges of the complaint. In 1956, after the case had been assigned a trial date, October 1, 1956, and while discovery procedures were pending, some of the Railroads and the Conference sought permission to and were allowed to file a counterclaim against the plaintiffs. This claimed that plaintiffs were engaged in an illegal conspiracy to obtain a monopoly of the long haul freight industry in the same part of the United States as set out in the complaint and to force the Railroads out of that part of the transportation business in that area.
The case went to trial before Judge Clary on October 1, 1956 and lasted almost four months. There were many witnesses and 968 exhibits. On October 10, 1957, the court in an exhaustive opinion (it covers 73 pages in 155 F.Supp. 768-841) found in favor of the plaintiffs against all the defendants on plaintiffs’ cause of action and against the defendant counterclaimants and in favor of the plaintiffs on the counterclaim.
Soundly based on substantial evidence, the trial court found that the Railroads and Byoir, as contended, had conspired in unreasonable restraint of trade to injure the truckers in their competitive position in the long haul freight industry in the northeastern part of the United States; that their immediate purpose was to create public resentment to the truckers, not only in the minds of the general public but in the minds of those who utilized the services of the trucks and in such a manner as to interfere with business relations between shippers and truckers; that instead of meeting the truckers competition in the long haul freight field, the Railroads and Byoir combined to injure and/or destroy the truckers and thereby force the shippers to their detriment to continue to use the Railroads; that they adopted and carried out a full program to obtain that objective; that serious private injury to the truckers was accomplished, definitely a loss of good will to the trucking industry and in some instances that loss of good will being extreme; that their actions destroyed to a large extent the public confidence which the truckers had fairly earned and which might have been increased in the light of the innumerable beneficial accomplishments of the truckers in long haul transportation.
The court found on overwhelming evidence that it was no series of individual conspiracies in the various states involved but one large ever-growing conspiracy as charged having as its goal to injure and/or destroy the long haul trucking industry and that the main means used to attain such end was primarily a campaign designed to destroy the good will of the truckers and to instigate and foster government restrictions by creating public hostility to the truckers, bringing this to the attention of the various legislatures, then proposing legislation crippling to the trucking industry and favored by the Railroads, all under the guise of public spirited organizations and with the defendants’ interest concealed.
The record shows the defendants’ antitrust conspiracy completely established against all the defendants named in the decree. It shows both legal and illegal methods to obtain the illegal objective of injuring and/or destroying the long haul trucking industry. It shows injury to the plaintiffs and to the public. It justifies the injunctive relief against continuing illegal activities of the defendants. It justifies the compensatory damages (trebled by statute) allowed plaintiff Pennsylvania Motor Truck Association, together with costs and counsel fees. It justifies the holding of the district court that the other plaintiffs, by reason of the stipulation which is very clear and is part of the record, are only entitled to nominal damages. It justifies the dismissal of the counterclaim, which action is not disputed by the Railroads except in line with their argument that the counterclaim is similar in content to the plaintiffs’ claim.
Though we think it plain from what we have said, it might be well to expressly note that the suggestion that the Railroads’ entire activity, spearheaded by Byoir, was merely a perfectly legitimate public relations campaign for legislation is fanciful in view of the impressive documentation in the record of the finding of the trial court “ * * * that the entire campaign and its objectives did not constitute a mere appeal to the legislature; nor was it a large scale lobbying campaign. True, one phase of the activities was of a legislative nature — but a rather new approach to legislation, to say the least. The other phase, and the more important one of the campaign, was one of vilification designed to destroy the good will of the long-haul trucking industry. Hence, the Court has rejected the contention of the defendants that their combination was entirely legislative. 1 have further determined that the ro.ilroads were not acting as the guardian of the public welfare, as they have so earnestly asserted.” (Emphasis supplied.)
Judge Clary’s opinion is soundly predicated on the facts and law of this litigation. We are in accord with it. The decree and orders of the district court of July 22, 1958 and July 31, 1958 will be affirmed.
. Sherman Act, 15 U.S.C.A. § 1 et seq.; Clayton Act, 15 U.S.C.A. § 15.
. The third party apparatus employed by the defendants, while concealing their own adroit manipulation thereof, in seeking to procure legislative and executive action is contrary to public policy and illegal. Marshall v. Baltimore & O. Railroad Co., 1853, 16 How. 314, 335, 14 L. Ed. 953; Angle v. Chicago, St. Paul, M. & O. R. Co., 1893, 151 U.S. 1, 14 S.Ct. 240, 38 L.Ed. 55; Commissioner of Internal Revenue v. Textile Mills Securities Corp., 3 Cir., 1940, 117 F.2d 62, affirmed 1941, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249. Cf. United States v. Silliman, 3 Cir., 1948, 167 F.2d 607, certiorari denied 1948, 335 U.S. 825, 69 S.Ct. 48, 93 L.Ed. 379.
. The attempt to influence legislation and executive action while rightly held by the trial court to be less important than the direct vilification of the long haul trucking industry was nevertheless properly found to be a vital element of the defendants’ conspiracy to injure and/or destroy that group. Even assuming the brazen interference with legislation and executive action in this instance was lawful, its entire motivation was shown to emanate from the conspiracy charged. It was part of defendants’ scheme to wreck their competitor, to monopolize that branch of commerce for themselves. As such it violated the Sherman Act. Giboney v. Empire Storage & Ice Co., 1949, 336 U.S. 490, 497-502, 69 S.Ct. 684, 93 L.Ed. 834; United States v. Krasnov, D.C. E.D.Pa.1956, 143 F.Supp. 184, affirmed 1957, 355 U.S. 5, 78 S.Ct. 34, 2 L.Ed. 2d 21; Atchison, Topeka & Santa Fe Railway Co. v. Aircoach Transport As-soeiation, 102 U.S.App.D.C. 355, 253 F. 2d 877, 887.
American Banana Co. v. United Fruit Co., 1909, 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, urged below and here by the Railroads, has no real application to the facts before us. The later decisions of the Supreme Court in United States v. Sisal Sales Corporation, 1927, 274 U.S. 268, 47 S.Ct. 592, 71 L.Ed. 1042, and Steele v. Bulova Watch Co., 1952, 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 252 clearly indicate that the Banana Company opinion is limited to the proposition that the Sherman Act cannot be invoked against persuading a foreign sovereign to act. Okefenokee Rural Electric Membership Corp. v. Florida Power & Light Co., 5 Cir., 1954, 214 F.2d 413, is the other decision stressed by the Railroads in the district court and on appeal. That too is hardly an authority for anything pertinent under the instant unescapable facts. There the complaint made no allegation that the conspiracy was directed to ruining a competitor in his business. The later case of Crummer Co. v. Du Pont, 5 Cir., 1955, 223 F.2d 238 and 5 Cir., 1958, 255 F.2d 425, certiorari denied 1958, 358 U.S. 884, 79 S.Ct. 119, 3 L. Ed.2d 113, leaves no doubt but that as of now in the Fifth Circuit Court of Appeals, a conspiracy to drive a competitor out of business is a violation of the Sherman Act even though, as in Crum-mer, its most important element was the obtainment of its objective by secretly moving under the guise and protection of the public interest and through the public authorities. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
0
] | songer_appnatpr |
Lyonel DOR, Petitioner-Appellant, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
No. 937, Docket 88-6270.
United States Court of Appeals, Second Circuit.
Submitted March 30, 1989.
Decided Dec. 8, 1989.
Mark Eli Nerenberg (Galef & Jacobs, New York City), for petitioner-appellant.
Noel Anne Ferris, Sp. Asst. U.S. Atty., New York City (Benito Romano, U.S. Atty., S.D.N.Y., Harriet L. Goldberg, Asst. U.S. Atty., of counsel), for respondent-appellee.
Before FEINBERG, PIERCE, and BROWN , Circuit Judges.
Hon. John R. Brown, Senior Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.
JOHN R. BROWN, Senior Circuit Judge:
Lyonel Dor appeals a district court decision denying his application for a preliminary injunction and dismissing his petition for a writ of habeas corpus. Dor, a Haitian, was ordered deported in 1985 after serving a prison sentence for manslaughter. A final order of deportation was stayed by this Court in 1987, however, so that the Immigration and Naturalization Service (INS) could determine whether Dor was entitled to relief under a recently passed immigration law. We reject Dor’s arguments that his continued detention (i) is without rational basis, (ii) extends beyond an INS six-month detention limitation, and (iii) violates due process. Furthermore, we find that the terms of our stay have been satisfied, i.e., that Dor’s application for adjustment of status under the new immigration law has been sufficiently adjudicated by the INS. Accordingly, we affirm the district court’s ruling and we vacate our earlier stay.
From Haiti to INS Detention
Dor, a citizen of Haiti, entered the United States at the age of 12 without valid entry documents in 1972. Six years later he was convicted of first degree manslaughter for participating in the murder of his aunt. Dor served 672 years in prison and then was released into the custody of the INS on June 20, 1984. He remains in INS custody today, more than 5 years after completing his sentence.
On December 8, 1982 the INS instituted deportation proceedings against Dor on the ground that he had entered the United States without valid entry documents. Having conceded that he indeed illegally entered the United States, Dor applied for asylum and a withholding of deportation. An Immigration Judge on April 30, 1985 denied his request for asylum and a withholding of deportation on the grounds that Dor is “a danger to the community of the United States” given the role he played in the slaying of his aunt, and ordered his deportation (event 3). See Immigration and Nationality Act (INA), § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B) (1952); 8 C.F.R. § 208.8(f) (1988). Dor unsuccessfully appealed that decision to the Board of Immigration Appeals (BIA) (event 4). In its dismissal order, the BIA determined that Dor was eligible for neither a withholding of deportation nor asylum due to his conviction for first degree manslaughter. Subsequently the BIA also denied Dor’s motion to reconsider and to reopen the deportation hearing (event 7; 7/3/86). Dor became subject to a final order of deportation on December 31, 1985.
Having exhausted his administrative remedies, Dor sought judicial review of the deportation order resulting in a stay of the order. 8 U.S.C. § 1105a(a)(3). In December 1986 this Court affirmed the order of deportation, (event 8; 12/24/86) but then stayed the issuance of its mandate in response to the suggestion that under the then-recently promulgated Immigration Reform and Control Act of 1986 (IRCA), Pub.L. 99-603, Dor as a Haitian might qualify for an adjustment of status and thus avoid deportation by attaining the status of lawfully admitted permanent resident (event 15; 1/20/87). On January 20, 1987 the stay of mandate was modified by extending it from 21 days to “until such time as the Immigration and Naturalization Service adjudicates the applications for relief from deportation by adjustment of status to lawful permanent resident status under [IRCA § 202].” (event 15)
Nearly three years have elapsed since this Court stayed Dor's deportation. On January 15, 1987 Dor filed his application for adjustment of status with the District Director of INS (event 14). The District Director rejected Dor’s application for adjustment on the grounds that he was statutorily ineligible (event 17; 1/29/87). The Administrative Appeals Unit (AAU) then advised that Dor “may be eligible to file an application before the District Director (event 19; 10/16/87).” Thereupon, on December 7, 1987, the District Director denied the application without a hearing (event 20). The District Director concluded that Dor was not eligible for adjustment under IRCA § 202(a)(3) because his manslaughter conviction made him an alien who had “been convicted by a final judgment of a particularly serious crime,” under § 243(h)(2)(B) of the INA. Dor filed a notice of appeal to the AAU (event 21; 12/28/87), and requested the District Director for a hearing. Before the AAU granted an appeal, the District Director granted Dor a hearing, but again ruled against Dor’s application (event 22; 1/23/89).
It Ain’t Over Til It’s Over
Dor has gone back and forth between the District Director and the AAU in his quest for adjustment. Throughout these legal maneuvers, this Court's stay of mandate alone has kept Dor from being deported. In August 1988 Dor filed a petition in the district court for habeas corpus and mandatory and injunctive relief pursuant to 8 U.S.C. § 1329 (event 31). Specifically Dor seeks release from INS custody while his quest for adjustment proceeds at a snail’s pace. At the time the district court denied Dor’s application for a preliminary injunction and dismissed the petition for a writ of habeas corpus, 697 F.Supp. 694 (S.D.N.Y. 1988) (event 32; 9/29/88), the January, 1989 decision of the District Director had not issued.
Today as we review the district court’s denial of habeas corpus relief, the AAU has affirmed (event 24; 6/12/89) the latest decision of the District Director (event 22; 1/23/89), finding once again that Dor does not have grounds for attaining readjustment under IRCA. On August 4, 1989 Dor filed a motion pursuant to 8 C.F.R. § 103.5(a) (1989) seeking AAU reconsideration of that AAU decision (event 25). The AAU denied this motion for reconsideration on September 18, 1989 (event 26), holding that it’s previous decision (event 24) thoroughly reviewed the issues and arguments presented in the appeal and reiterated on motion. Meanwhile, on October 11, 1989, the BIA heard oral argument on Dor’s motion to reopen his deportation proceedings (event 10). This most recent motion to reopen the deportation proceedings has also been denied (event 11; 11/2/89).
I. Issues on Appeal
We are presented initially with the question of whether the district court erred in dismissing Dor’s petition for a writ for habeas corpus and request for injunctive relief. We wholeheartedly embrace the district court’s conclusions that Dor’s continued detention by the INS is legal. We reject Dor’s arguments that (i) the detention without bond was without rational basis; (ii) the INS’ failure to deport him within six months of the entry of the final deportation order precludes his further detention; and (iii) his extended detention violates due process.
(i) Rational Basis?
The Haitian-Cuban Adjustment provision of IRCA, § 202(a), excludes from its coverage those aliens described in the earlier immigration statute, INA § 243(h), 8 U.S.C. § 1253(h). For our purposes, the pertinent subsection of § 243(h) is 243(h)(2)(B), which states that a withholding of deportation shall not be granted when “the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” INA § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B). As the district court pointed out, the Immigration Judge has already made an unambiguous finding in the deportation proceedings (event 3; 4/30/85), and this has been confirmed by the BIA (event 4; 8/20/85), that appellant Dor is within those class of persons defined by § 243(h)(2)(B) of the Act, 8 U.S.C. § 1253(h)(2)(B).
Dor makes several arguments to challenge the effect of this characterization by the immigration authorities. None of these arguments are persuasive. First, Dor claims that this Court has already determined that his homicide conviction is insufficient to show that he is “dangerous” under INA 243(h)(2), 8 U.S.C. § 1253(h)(2). Dor bases this claim solely on our earlier rejection (event 18; 2/9/87) of the Government’s motion to vacate the stay of the mandate (event 16; 1/28/87). But in rejecting the Government’s motion to vacate the stay, we neither intended nor intimated a particular substantive ruling, explicit or implied, regarding the merits of either party’s claim. Our stay of the mandate was designed simply to allow Dor the ability to maintain administrative review in the INS in light of the passage of IRCA. Since Dor is a Haitian, and IRCA contains a special provision for Haitians, (the Cuban-Haitian Adjustment provision, § 202), we merely considered the obvious possibility that Dor’s alien status might be adjusted pursuant to that Act. However, well-established doctrine prevented our judicial interference in administrative decision-making at that incomplete stage of the process.
Second, Dor contends that the Immigration Judge and the BIA have no jurisdiction to determine his eligibility under IRCA because the act requires the Attorney General to make the status eligibility determination. We agree. The proper authority to decide Dor’s adjustment application is the Attorney General, and he has delegated that authority, by regulation, to the District Director. 8 C.F.R. § 245.6 (1989). And as we observed, supra, Dor has been pursuing adjustment of status before the District Director and, on appeal, before the AAU. However, merely because the District Director and the AAU have exclusive jurisdiction over Dor’s adjustment application does not prevent them from relying on the pre-IRCA interpretation by the Immigration Judge and the BIA that he was not entitled to a withholding of deportation or a grant of asylum under § 243(h)(2)(B) and 8 C.F.R. § 208.8(f). See note 7, supra. The issue was directly and necessarily involved. The district court was entitled to determine this was a rational decision.
(ii) Six Month Deadline
Dor next argues that § 242(c) of INA, 8 U.S.C. § 1252(c), limits the Attorney General to a six month detention period, and since Dor has been held much longer than six months, his release is required. But Dor misinterprets the language of the statute and ignores prior decisions of this Court. First, the statute clearly states that the commencement date for the six month period is the date of the final order of a court, where judicial review is sought. But the final order of this Court has not been entered since Dor successfully pursued, and obtained, a stay of the mandate (event 15; 1/20/87). As the district court found, this case is governed by United States ex rel. Cefalu v. Shaughnessy, 117 F.Supp. 473, 474 (S.D.N.Y.), aff’d on opinion below, 209 F.2d 959 (2d Cir.1954). When the actions of the alien prevent the INS from effecting deportation, delaying tactics do not support the alien’s claim for release from deportation. See also Doherty v. Meese, 808 F.2d 938, 941 (2d Cir.1986); United States ex rel. Lam Tuk Man v. Esperdy, 280 F.Supp. 303, 304 (S.D.N.Y.1967). Dor contends that the government’s formulation of INA § 242(c), 8 U.S.C. § 1252(c) could lead to the detention of an alien in perpetuity, if the INS refrained from adjudicating a pending application for administrative relief for whose explicit adjudication a Court of Appeals has ordered deportation stayed. But this argument assumes the absence of facts critical to the case at hand, i.e., that Dor is largely responsible for the very delay of deportation of which he complains.
(Hi) Due Process
Dor’s due process claims fail for the same reason. Dor stresses this Court’s decision in United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir.1986), which held that where the Government, “even if not deserving of blame, bears a responsibility for a portion of the delay significant enough to add considerable weight to the [petitioner’s] claim that the duration of detention has exceeded constitutional limits,” lengthy detention pending resolution of a criminal charge “would exceed even the flexible standards of due process.” Id., at 343.
We find Gonzales Claudio not controlling. First, a deportation proceeding is not a criminal proceeding (Gonzales Claudio ) and the full trappings of legal protections that are accorded to criminal defendants are not necessarily constitutionally required in deportation proceedings. See Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir.1977).
Second, while we found that the defendants in Gonzales Claudio bore some responsibility for the delays in that case, a significant portion of the responsibility for the delay fell on the Government. Id. at 342. In Dor’s case, on the other hand, the INS issued its first decision on Dor’s application for Cuban-Haitian Adjustment on January 29, 1987, two weeks after it was filed. Assuming, without deciding, that within the framework of this Court’s very generous stay it was permissible for Dor to pursue repeated, unsuccessful appeals of the various administrative decisions that he is statutorily barred from adjustment, he comes perilously close to Gonzales Claudio’s admonition that “[parties] cannot litigate pretrial matters to the ultimate degree and then rely on the extra time attributable to their * * * practice to claim that the duration of pretrial detention violates due process.” Id. at 341. After all, Dor’s continued presence in the United States, and his sustained detention, result from the simple fact that — at his urgent request and by our stay — we allowed his application to be exhaustively adjudicated by the INS. Dor has failed to demonstrate that his continued detention by the INS is a denial of due process requiring his release.
II. What’s in Store for Dor?
Dor has vigorously cultivated every avenue of relief open to him: he has sought clemency from the Governor of New York, pursued repeated appeals of his adjustment application to the AAU, tried new motions to reopen his deportation proceedings with the BIA, endeavored to have his felony conviction expunged in the New York state court, and now appeals a petition for habe-as corpus and injunctive relief. While the zeal and diligence of his pro bono publico attorney is to be commended, we must recognize that Dor has yet to successfully convince the administrative bodies of the INS that he should be able to remain in the United States.
Satisfaction of Our Stay
As we stated, supra, on January 20th, 1987, the length of stay of our mandate was modified to extend the stay from 21 days to “until such time as the Immigration and Naturalization Service adjudicates the applications for relief from deportation by adjustment of status to lawful permanent resident status under [IRCA § 202]” (event 15). Although the terms of our stay are not directly raised on this appeal of a habeas petition, this Court having found the district court’s decision unqual-ifiedly correct is faced with a problem: what happens now? Obviously, this Court has full authority to vacate a stay of its own mandate. See Miller v. Aaacon Auto Transport, Inc., 545 F.2d 1019, 1020 (5th Cir.1977), cert. denied, 449 U.S. 918, 101 S.Ct. 315, 66 L.Ed.2d 145 (1980).
In its June 12, 1989 decision, the AAU held that “the sole issue in the proceeding is whether [Dor] is statutorily ineligible for [adjustment of status under subparagraph (a)(3) of § 202 of IRCA].” (event 24) This provision, the AAU observed, “bars the adjustment of any alien if the Attorney General determines that the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” The AAU then cited immigration cases as authority that (i) manslaughter in the first degree is a “particularly serious crime,” and (ii) no separate determination of dangerousness is necessary once a determination is made that an individual has been convicted of a “particularly serious crime.” See, e.g., Matter of Frentescu, 18 I & N Dec. 244 (BIA 1982), and Matter of Carballe, I.D. 3007 (BIA 1986).
Dor’s motion to reopen before the AAU (event 25) offered two new facts: (i) the BIA decision dismissing Dor’s appeal of the District Director’s denial of request for custody redetermination (event 35); and (ii) a copy of the motion filed with the BIA requesting it to reopen Dor’s deportation proceedings (event 9). Finding neither fact material, the AAU concluded: “The [BIA’s] decision relating to the custody of the applicant and counsel’s motion to reopen deportation proceedings are not pertinent to the matter of the applicant’s ineligibility for the benefit sought as neither affects the finding that the applicant is statutorily ineligible for adjustment of status.” (event 26) In light of these final administrative decisions, we find that Dor’s application for adjustment of status has been sufficiently adjudicated. Accordingly, our stay is hereby vacated. The stayed mandate should issue forthwith, and the mandate affirming the instant appeal should issue forthwith.
Affirmed.
Stay VACATED.
APPENDIX
DOR TIMELINE
Event Date Event No.
Deportation Proceedings
1. 12/08/82 INS institutes deportation proceedings against Dor on the grounds that he entered the United States illegally.
2. 3/12/85 Deportation hearing held before Immigration Judge, who concludes that Dor is deporta-ble.
3. 04/30/85 Dor concedes his deportability, but applies for asylum and a stay of deportation. The Immigration Judge denies both of these requests. The Immigration Judge orders Dor deported and concludes that Dor, having been convicted of a “particularly serious crime ... constitutes a danger to the community of the United States,” and thus is statutorily ineligible for withholding of deportation and not worthy of the favorable exercise of discretion to be granted asylum.
4. 08/20/85 BIA upholds Immigration Judge order of 4/30/85, citing same reasons as the Immigration Judge for disallowing asylum and a stay of deportation.
5. 08/29/85 Dor files petition to review BIA action of 8/20/85 in this Court.
6. 10/29/85 Petition for review of 8/29/85 is withdrawn with prejudice. Dor loses right to appeal BIA decision of 8/20/85 before this Court (effective 12/31/85).
7. 7/3/86 BIA denies Dor’s motion to reopen and reconsider its 8/20/85 decision. Dor’s reliance on the New York State Certificate of Relief from Disabilities (issued 12/20/85), is misplaced, according to the BIA, because it has no legal effect on the finding of de-portability.
8. 12/24/86 This Court upholds, the BIA’s 7/3/86 decision denying Dor’s motion for reconsideration. Pursuant to Fed.R.App.P. 41(a), Dor is given 21 days before the mandate of this Court is carried out ordering Dor deported.
9. 6/23/89 Dor files motion with the BIA to reopen his deportation proceedings for the express purpose of remanding the matter to the Immigration Judge, for a hearing and a reconsideration of BIA’s earlier order on whether Dor is an alien described in § 243(h)(2)(b).
10. 10/11/89 BIA hears oral argument on Dor’s motion to reopen and reconsider his deportation proceedings.
11. 11/2/89 BIA denies Dor’s motion of 6/23/89 to reopen deportation proceedings.
Adjustment of Status Proceedings
12. 11/06/86 Immigration Reform and Control Act (IRCA) enacted.
13. 01/13/87 Dor moves this Court to stay its mandate “until INS adjudicates” his applications for relief, in light of the passage of IRCA. (First time IRCA is raised in Dor’s proceedings).
14. 1/15/87 Dor files his adjustment application with the District Director.
15. 01/20/87 This Court grants Dor’s motion of 1/13/87, staying Dor’s deportation pending final adjudication of his application for adjustment of status as a Cuban/Haitian entrant under the provision of section 202 of IRCA.
16. 01/28/87 INS moves to vacate the stay by this Court.
17. 1/29/87 Dor’s adjustment application is denied by the District Director. Dor appeals to the AAU.
18. 2/9/87 This Court denies the INS’s motion, to vacate its 1/20/87 order staying Dor’s deportation. Consequently, stay issued on 1/20/87 remains in effect.
19. 10/16/87 AAU refers case back to District Director for decision on the merits.
20. 12/07/87 District Director denies, without a hearing, Dor’s application on 10/16/87 remand from the AAU.
21. 12/28/87 Dor appeals the 12/07/87 decision to the AAU.
22. 1/23/89 After a hearing, the District Director again denies Dor’s adjustment application. In its decision, the District Director cites the 4/30/85 decision of the Immigration Judge finding Dor an alien under § 243(h)(2)(b), the 12/24/86 decision of this Court that specifically pointed out the Immigration Judge’s 4/30/85 finding, and the 9/30/88 decision of the District Court dismissing Dor’s petition for a writ of habeas corpus based on what it called the “incontrovertible” finding that Dor was an alien described in § 243(h)(2)(b).
23. 4/6/89 Oral argument granted before the AAU.
24. 06/12/89 AAU affirms the District Director decision of 1/23/89.
25. 08/04/89 Dor files motion seeking AAU reconsideration and reopening of its 6/12/89 opinion.
26. 9/18/89 AAU denies Dor’s 8/4/89 motion to reopen and reconsider his Cuban-Haitian adjustment application.
Custody/Habeas Proceedings
27. 5/20/84 Dor released by New York into INS custody.
28. 7/2/86 Dor requests that the District Director set conditions for his release.
29. 10/3/86 District Director, pursuant to Dor’s 7/2/86 request, reinstates bond in this case in the amount of $20,000. Dor does not post bond and remains in custody.
30. 12/31/86 District Director again revokes Dor’s bond and orders him detained in Service custody.
31. 8/19/88 Dor files a petition for a writ of habeas corpus (for release from custody while INS process continues) in U.S. District Court.
32. 9/29/88 District Court denies Dor’s habeas corpus claims. Dor Appeals to this Court.
10/4/88 Dor requests the District Director for a reconsideration of his custody status.
34. 10/26/88 District Director denies Dor’s 10/4/88 request for reconsideration. District Director concludes in its denial that the basis of the request, i.e., the AAU’s interest in the case, was severely diminished by the 9/29/88 dismissal of the respondent’s petition for a writ of habeas corpus by the District Court. Specifically, the District Director emphasized the District Court’s finding that the INS detention of Dor was not an abuse of discretion. In addition, the District Director finds significant the District Court’s consideration of the respondent’s eligibility for adjustment of status as a Cuban/Haitian entrant and its conclusion that the respondent’s appeal from the denial of his application was not likely to succeed. Dor ordered to remain detained without bond.
35. 4/26/89 BIA affirms the District Director’s 10/26/88 denial of Dor’s request for redetermi-nation of his custody status. BIA asserts lack of jurisdiction over all issues raised with regard to Dor’s Cuban-Háitian adjustment application. BIA limits its inquiry on appeal to a review of the custody determination of the District Director as it relates to the necessity for and the appropriate amount of bond to ensure Dor’s availability for deportation. Upon consideration of the facts and evidence presented in this particular case, the BIA concludes that Dor is a substantial bail risk and that he should not be released from INS custody.
Other Proceedings
36. 1972 Dor enters the United States without valid entry documents.
37. 11/17/78 Dor sentenced to a New York prison term of 5-15 years for first-degree manslaughter.
38. 6/1/88 Dor’s motion to vacate his felony conviction is denied by the New York State Supreme Court, Kings County.
39. 6/19/88 Dor’s request for executive clemency is denied by the New York Executive Clemency Bureau.
40. 7/5/88 Dor files a motion before the Appellate Division for a certificate granting leave to appeal the 6/1/88 denial by the New York State Supreme Court, Kings County.
. An appendix following this opinion delineates the procedural history of Dor’s unusually complex and protracted case. To clarify, we will parenthetically refer throughout the text to the date and "event number” of significant events (see appendix).
. Section 202(a) of IRCA provides, in relevant part:
(a) [An alien’s] status * * * may be adjusted by the Attorney General, in the Attorney General's discretion and under such regulations as the Attorney General may prescribe, to that of an alien lawfully admitted for permanent residence if * * * (3) [the alien] is not an alien described in § 243(h)(2) of [the INA]. See Immigration Reform and Control Act of 1986 (IRCA) P.L. 99-603, 100 Stat. 3359, 3404, § 202. See note following 8 U.S.C.A. § 1255a (West 1988).
Section 202 of IRCA, which is devoted solely to Cuban-Haitian entrants, is discussed in a House Report attached to the bill: "Section 202 of the Committee bill would allow Cuban-Haitian Entrants * * * to apply for lawful permanent resident status if they have resided continuously in the United States since January 1, 1982 and are not excludable on criminal or national security grounds." H.R.Rep. No. 682(1), 99th Cong., 2d Sess. 76, reprinted in 1986 U.S.Code Cong. & Admin.News 5649, 5680 (our emphasis).
. Because our earlier stay involved matters literally not part of the record in this case, the Court on May 25th sent a letter to counsel requesting the Court be kept informed of developments in the case pending in the INS administrative process. The purpose of our request was to be assured that the Court in its continuous appraisal of its earlier stay have accurate information and that further administrative actions in the INS are handled expeditiously to avoid further unnecessary delay.
. The AAU decision was rendered on June 12, 1989. Dor moved to reopen the proceeding given perceived errors in the AAU decision. In response, AAU on June 23, 1989 modified its June 12th opinion. The modifications, however, did not alter the affirmance of the District Director’s denial of adjustment.
.Dor's motion to reopen his deportation proceedings was made pursuant to 8 C.F.R. §§ 3.2 and 3.8(a) (1989). These regulations disallow reopening “unless it appears to the BIA that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 3.2 (1989).
Dor’s motion to reopen alleged two new material facts. First, he claimed that the enactment of IRCA, (especially § 202), justified a fresh look at his deportation order, in light of the remedial purposes of that statute. Second, he alleged that the District Director/AAU improperly relied upon a prior finding of the Immigration Judge in making a critical determination about his application for adjustment of status. Neither of these arguments persuaded the BIA to reopen the deportation proceedings (event 11).
. See note 2, supra.
. The full text of INA § 243(h), 8 U.S.C. § 1253(h) provides as follows:
(h)(1) The Attorney General shall not deport or return any alien (other than an alien described in § 241(a)(19) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
(h)(2) paragraph (1) shall not apply to any alien if the Attorney General determines that—
(A) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
(B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
(C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States; or
(D) there are reasonable grounds for regarding the alien as a danger to the security of the United States.
.Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938); see also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 20-24, 94 S.Ct. 1028, 1038-41, 39 L.Ed.2d 123 (1974); McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969); County of Rockland v. N.R.C., 709 F.2d 766, 774 (2d Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 485, 78 L.Ed.2d 681 (1983); Marshall v. Northwest Orient Air lines, 574 F.2d 119, 122 (2d Cir.1978); Brown v. General Services Administration, 507 F.2d 1300, 1307-08 (2d Cir.1974), aff’d, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976).
. The principal Justice Department units with adjudicative roles in immigration are: 1) the Executive Office for Immigration Review, (which is composed of the Immigration Judges, and as appellate authority, the BIA); and 2) the INS (which is composed of District Directors, and as appellate authority, the AAU). See Le-gomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L.Rev. 1297, 1308 (1986). To avoid confusion, it should be stressed that the BIA and the Immigration Judges are no longer (since 1983) formally part of the INS.
The Attorney General sits atop these two divisions. The allocation of adjudicatory responsibility between the Executive Office for Immigration Review and the INS does not lend itself to simple explanation or summary. The Immigration Judges issue both exclusion and deportation orders, among other things. INA §§ 236(a), 242(b), 8 U.S.C. §§ 1226(a), 1252(b) (1982). District Directors decide visa petitions, (8 C.F.R. § 204.1), adjustment of status applications, (§ 245.2, § 245.6), extensions of stays for nonimmigrants, (§ 214.1-2, etc.)
The AAU consists of five “appellate examiners” and the Chief of the Unit, none of whom is an attorney. Each case is considered de novo by one of the appellate examiners and reviewed by the Chief, whose decision prevails in the event of a conflict. Decisions of the AAU are published very infrequently.
The BIA has five members, all attorneys, and all of whom participate in every case. See 8 C.F.R. § 3.1(a)(1), and Legomsky, Forum Choices, supra. They are assisted by a staff of attorney examiners. The BIA selects, for publication, precedent decisions that will bind the INS and the Immigration Judges. 8 C.F.R. § 3.1(g).
. Section 242(c) provides: “When a final order of deportation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien’s departure from the United States, during which period at the Attorney General’s discretion, the alien may be detained, or released on bond in an amount and containing such conditions as the Attorney General may prescribe. * * * ” 8 U.S.C. § 1252(c).
. As mentioned earlier, Dor has pursued a second series of appeals before the Immigration Judge and the BIA (events 2, 3, 4). The BIA granted Dor’s motion to reopen his deportation proceedings in late August of 1989, and heard oral argument for that motion on October 11, 1989, (event 10). On November 2, 1989, the BIA denied Dor’s motion to reopen his proceedings (event 11).
. At the heart of Dor’s argument in his repeated appeals before the INS is a claim that the AAU and the District Director have erroneously relied on interpretations by the Immigration Judge and the BIA in making their decisions about Dor's application for adjustment of status. The claim can be summarized as follows: 1) the Immigration Judge and the BIA determined that Dor was an alien described in § 243(h)(2)(B) of the INA, and therefore deportable (events 2, 3, 4); 2) then, IRCA was enacted, allowing relief to Dor only if he is not an alien described in § 243(h)(2)(B) (event 12); 3) rather than relying on the previous decisions of the Immigration Judge and the BIA, Dor argues that a de novo determination must be made by the District Director and the AAU as to whether he is an alien described in § 243(h)(2)(B).
Several reasons are given in support of this third assertion. The most persuasive reasons are that new administrative offices (namely, the District Director and the AAU, see 8 C.F.R. § 245.6) have been entrusted with deciding whether relief is available under IRCA, and that § 243(h)(2)(B) might require a different interpretation in light of the remedial purposes of IRCA.
Fortunately, we do not, need to embroil ourselves in these issues, since the AAU’s latest decisions (events 24 and 26) that Dor is an alien described in § 243(h)(2)(B) are reached with sufficient independence. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. | Did the interpretation of federal statute by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_fedlaw |
Richard GOODWIN et al., Plaintiffs-Appellees, v. Russell G. OSWALD, Commissioner of Correctional Services of the State of New York, et al., Defendants-Appellants.
No. 776, Docket 72-1307.
United States Court of Appeals, Second Circuit.
Argued April 13, 1972.
Decided June 19, 1972.
Judith A. Gordon, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for defendants-appellants.
Barbara A. Shapiro, New York City (William E. Hellerstein, The Legal Aid Society, Richard A. Greenberg, New York City, of counsel), for plaintiffs-ap-pellees.
Jack Greenberg and Stanley A. Bass, New York City, on the brief for NAACP Legal Defense and Educational Fund, Inc., and National Office for the Rights of the Indigent as amici curiae.
Before FRIENDLY, Chief Judge, and SMITH and OAKES, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This appeal raises interesting and difficult questions concerning the balance to be struck between prisoners’ sixth and fourteenth amendment rights and the need to allow prison officials discretion to exclude communications they feel will endanger their institutions. The United States District Court for the Southern District of New York, Charles Tenney, Judge, granted a preliminary injunction to plaintiffs, prisoner-members of the Prisoners’ Labor Union at Green Haven (“the union”) holding that they must be allowed to receive a letter from their attorneys containing legal advice about the formation of the union and efforts to have it officially certified, and all letters from the Legal Aid Society, in accordance with the provisions of Administrative Bulletin No. 20 (January 31, 1972) of the Department of Correctional Services. The order was not given effect, as this court granted a stay and expedited the appeal of the Commissioner of Corrections and the Superintendent of Green Haven, who claim that the court below erred in his estimate of the effect the letters would have and abused his discretion in granting preliminary relief and allowing the letters to enter the allegedly tense prison. We find error only in the extent of relief granted and modify and affirm the grant of preliminary injunction.
The case presents three basic issues: (1) whether the court was incorrect in finding, on constitutional grounds, that the officials were unjustified in withholding the letters; (2) whether it was proper to require obedience to Administrative Regulation No. 20, which sets a standard for censorship of legal mail that is more lenient than constitutionally required; and (3) whether the conditions which justify issuance of a preliminary injunction exist. We are not faced on this appeal with the question of the constitutionality or legality of unions or other organizations of prisoners, but only with the right of prisoners to receive communications from counsel whose advice has been sought on that question. We do not therefore intimate any views as to the legality, desirability, dangers or possible benefits of any type of prisoner collective bargaining on prison working conditions or of any other organized representation of prisoners.
The inmates at Green Haven, a maximum security institution at Stormville, New York, holding 1900-2000 men, began during the summer of 1971 to organize a labor union to act on their behalf in connection with conditions of labor in the prison. They contacted the Legal Aid Society’s Prisoners’ Rights Project for assistance in this endeavor. The Project was told, when it inquired of the Commissioner, that prisoners are not in an employee-employer relationship with the Department of Corrections and that the Department would not recognize any inmate labor organization because “it would be contrary to the best interests of the Department and of the general welfare of the prison population.” In December, 1971, the Project received the signatures of approximately 800 inmates requesting the attorneys to draft a union constitution and represent them in union-related matters. The constitution was sent to the inmates; though it may have been signed and become effective, by its own terms, the union has thus far taken no action. Legal Aid also provided authorization forms to sign up new union members.
The communication which is the subject of this suit was sent by Legal Aid during the week of February 7, 1972 to all those inmates who had signed up as members of the union but to no one else. In the packet sent to each inmate the main document was a seven-page letter detailing legal steps being taken on behalf of the union and giving legal advice on a number of union matters. A copy of the letter to the Commissioner requesting recognition of the union, the union constitution, and press releases issued February 7 announcing the formation of the union and commitments of support for it by prominent individuals, were included. On February 9, the Commissioner told Legal Aid that he would deny recognition to the union; a week later he informed the Society that he had not and would not deliver the February 7 letters to the 980 addressees. Apparently, fifteen of the letters had arrived unsealed and were examined by prison officials; on the basis of this scrutiny the authorities had decided to withhold the letters. The next day, the 18th, Legal Aid filed a petition with the Public Employees Relations Board requesting certification of the union as collective bargaining agent for the prisoners. The present complaint was filed on February 23; the action was brought under 42 U.S.C. § 1983 and its jurisdictional complement 28 U.S.C. § 1343, and plaintiffs requested a preliminary injunction ordering the defendants to deliver the communications from their attorneys.
Affidavits were submitted to the court by both sides; neither requested an evidentiary hearing. The defendants argued that their action was justified because the formation of a union was against prison policy and would jeopardize their control of the institution. They interpreted the letter as a declaration that the union was “operational” and as an incitement to “concerted activity” that would present a clear and present danger of disruption to the institution. They anticipated that if the letters were delivered, and they were then obliged to burst the balloon of rising expectations by proscribing union activity, they would subject themselves to danger.
The court found that the letter was a communication of legal advice, not a call to illegal action, and that its optimism about the formation of a union was carefully hedged with cautionary instructions to obey all prison rules in the interim, which might be lengthy, before the union was certified and could negotiate with prison officials. The court held that the letter came within the “legal mail” classification of Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, sub nom. Oswald, Correction Commissioner et al. v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), and neither violated the standards applicable to such mail nor presented a clear and present danger to the security of the institution. The court felt that the resort to legal methods of challenging the prison’s refusal to countenance unions and of improving the prisoners’ status was a constructive and rehabilitative rather than a dangerous move. The withholding also violated the Commissioner’s own Administrative Regulation No. 20, and the court ordered that rule followed in the future. He held the class of all inmates proper under Rule 23(b) (2). He was not entirely clear on the issues of irreparable injury and balance of hardships. The only issues for this court are whether the court made clearly erroneous findings of fact or abused his discretion in ordering the warden to deliver the letters from Legal Aid and to abide by his mail regulation in the future. The court’s easy characterization of the Legal Aid letter as pure legal advice may be open to question, as it was somewhat more ambiguous than that, but we hold that he was quite correct in his assessment of the appropriate legal standard and his application of it to the facts of the case.
The main letter from the Prisoners’ Rights Project attorneys is addressed to “Dear Union Member” and begins by remarking on the public announcement of that day and by noting the possibility of affiliation with already existing unions. The letter goes on: “Now that your union is ready to function we have been requested to provide further legal advice as to the role it can play, how it will operate, and how to deal with problems that may arise.” The letter continues with a recitation of efforts to induce the Commissioner to recognize the union as the collective bargaining agent for the inmates; if he denies it recognition, the attorneys state that they will file a petition with the Public Employees Relations Board (PERB). The letter in general and the above sentences in particular had a positive tone about the probable outcome of the PERB proceeding and the chance that the union would be functional in the relatively near future that undoubtedly seemed unwarranted and threatening to the state. The letter advised inmates that it was crucial that they obey all institutional rules during the certification process before PERB and, if necessary, in the courts.
The letter goes on to describe the issues the union would treat were it certified ; certain of these paragraphs have a note, once again, of confident assumption that the recognition of the union is an event whose occurrence is quite certain rather than merely marginally possible. Most of the sentences, however, use the verb “would” rather than “will,” thus keeping the tone conditional. The letter mentions the fact that the prison officials have not objected to solicitation of union members over the preceding months and presents the Project’s view on why a union would serve the interests of the inmates more effectively than a liaison committee serving at the discretion of the administration. The letter ends with a warning that should the administration resist the union, the process of obtaining recognition will be long and arduous; the belief expressed is that the union “will eventually succeed” rather than that it will begin negotiations tomorrow.
The constitution sets forth as union goals the advancement of the economic, political, social and cultural interests of the prisoners, the adoption of laws increasing the welfare of prisoners, and the equalization of the rights of prison labor and free labor by expansion and recognition of the former. There are clauses on dues, meetings, and other routine matters. The press releases raise no problems.
Before discussing the specific factors operative in this situation, we review the constitutional context in which the claims of the plaintiffs arise. As convicted prisoners, they are denied the full panoply of constitutional rights which citizens normally enjoy. But among the basic rights which they do retain in prison are certain of the first amendment freedoms and the sixth and fourteenth amendment right of access to the courts. It is the latter right which is principally involved here, although there are first amendment overtones, recognized by the lower court, in this situation. The right of a prisoner to access to the courts was first articulated by the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Since then, the boundaries of the right has been further delineated; a necessary concomitant to the right of access is the right to assistance of counsel. See, e. g., McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed. 2d 718 (1969); Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.), aff’d sub nom. Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L.Ed.2d 142 (1971). In turn, the provision of effective assistance requires the opportunity for confidential communication between attorney and client on pending litigation and related legal issues. Coleman v. Peyton, 362 F.2d 905 (4th Cir.), cert. denied, 385 U.S. 905, 87 S.Ct. 216, 17 L.Ed.2d 135 (1966); McCloskey v. Maryland, 337 F.2d 72 (4th Cir. 1966); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y. 1970); Fulwood v. Clemmer, 206 F. Supp. 370 (D.D.C.1962). This court and others have recognized the primary importance of mail in this attorney-client relationship and have granted it protection from interference by prison staff in all but extraordinary circumstances. Sostre v. McGinnis, supra; Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); McDonough v. Director of Patuxent, 429 F.2d 1189 (4th Cir. 1970); Smith v. Robbins, 328 F.Supp. 162 (D.Me.1971), aff’d 454 F.2d 696 (1st Cir. 1972); Marsh v. Moore, supra; Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I. 1970). See Corby v. Conboy, 457 F.2d 251 (2d Cir. 1972); Wright v. McMann, 460 F.2d 126 (2d Cir. 1972). Cf. Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952).
The standard which applies to attorney-client mail in this circuit was formulated in Sostre v. McGinnis, supra; in distinction to other correspondence, which may be read and censored for material which inhibits or threatens rehabilitation, security, or other professed goals of incarceration, mail to or from attorneys is rarely proscribed:
The generous scope of discretion accorded prison authorities also heightens the importance of permitting free and uninhibited access by prisoners to both administrative and judicial forums for the purpose of seeking redress of grievances against state officers. The importance of these rights of access suggests the need for guidelines both generous and specific enough to afford protection against the reality or the chilling threat of administrative infringement. Thus, we do not believe it would unnecessarily hamper prison administration to forbid prison authorities to delete material from, withhold or refuse to mail a communication between an inmate and his attorney (citations omitted) or any court . . . unless it can be demonstrated that a prisoner has clearly abused his rights of access. [I]f a communication is properly intended to advance a prisoner’s effort to secure redress for alleged abuses, no interest would justify deleting material thought by prison authorities to be irrelevant to the prisoner’s complaint. The chance that an official will improperly substitute his judgment for that of the correspondent then preponderates. For similar reasons, prison officials may not withhold . . . material from otherwise protected communications merely because they believe the allegations to be repetitious, false, or malicious. [442 F.2d at 200-201]
The state argues that under any of the relevant tests the letter was properly excluded from the prison. Citing Roberts v. Pepersack, 256 F.Supp. 415 (D. Md.1966), which held that it was permissible to punish an inmate who had called for a demonstration against prison conditions, and McCloskey v. Maryland, 337 F.2d 72 (4th Cir. 1964), in which similar restriction was held permissible even though the advocacy was not a call to action but merely a dissemination of political or social views, the defendants urge that this is an analogous situation in which the first and sixth amendment rights of the inmates may be curtailed in order to prevent an incitement to concerted effort to evade institutional rules. Nor, defendants claim, can this threatening behavior hide behind a purported attorney-client relationship when in essence it is not bona fide legal advice. See Sostre v. McGinnis, 442 F.2d at 200; McCloskey v. Maryland, 337 F.2d at 74.
The answer to the question of which category the letter from Legal Aid falls into — whether it urged illegal concerted action, was merely correspondence by interested persons, or was communication to clients giving legal advice on actions intended to challenge and improve the conditions of confinement-— seems to us reasonably clear, although because prison unions are very new we find no cases directly on point. Most of the cases deal with representation in criminal cases, on habeas corpus petitions, or in civil rights actions, under 42 U.S.C. § 1983. The attorneys here might be said to be taking action analogous, though on a larger scale, to a section 1983 action, trying to establish a right, possibly derived from the first and thirteenth amendments, for the prisoners to associate and try to lessen the harshness of prison work conditions and contribute to the success of training and rehabilitation programs. Nor does the fact that the union was declared “operational” remove this letter from the realm of advice, for there is a valid and significant distinction between the existence of the union and its certification as an operating bargaining agent. To apply to PERB, the union had to be in existence, and the letter made it clear that the group could not deal with the officials yet, that the certification was a potentially lengthy legal proceeding, and that thinking about the issues the union might eventually raise (while obeying all prison rules) was the only concerted action inmates ought to take at present. They were not urged to change their work habits or to present any demands to the administration. A finding that this is not propaganda or incitement cannot be termed clearly erroneous.
Under the test for attorney-client mail, the state must show clearly an abuse of access in order to justify restriction. Defendants claim that such an abuse exists here, because the letter advocated an “unlawful scheme,” one instance mentioned by the Sostre court in which some restriction would be permissible. The contention that an application for recognition of the union and communication with one’s clients preparatory to such application are components of an unlawful scheme seems a misuse of that term. The lawyers were telling the prisoners to utilize lawful, not unlawful channels for the presentation of grievances and were guiding a challenge to a prison rule through orderly procedures. It is difficult to discern in what other fashion the prison would prefer to have the rule examined; it is the only peaceful method by which it can be reviewed by someone other than the Commissioner or his deputy, who are naturally interested in quelling any inmate activity which may arrogate to inmates themselves some decision-making power about the conditions of prison life.
Legal Aid points out, as the district court found, the inconsistency between the officials’ tolerance of the solicitation and mailing of authorization forms and the intolerance of a legal opinion which they undoubtedly never expected and with which they vehemently disagree. Given the fact that they allowed the solicitation which raised inmate hopes, their argument about the danger that will result from the disillusionment they will have to cope with on the heels of the Legal Aid letter seems highly disingenuous. They can hardly claim that to allow the prisoners to read a letter will be more disruptive than to deny them all word of the result of their organizational efforts of several months. In fact, the state conceded this point at oral argument; counsel stated that her clients did not object to a letter advising the inmates of the applicable law and recent events, but that the objection to the present letter was that it assumed the union was “operational.” This objection has been disposed of above.
Despite the fact that the letter was not within that category of legal mail which constitutes an abuse of access, defendants claim that the existence of a clear and present danger to the security of the institution justifies the exclusion. When such a danger exists, it has been held permissible to restrict even those most basic and “preferred” freedoms of individuals. A standard for such danger in a prison context has been set forth in Fortune Society v. McGinnis, supra n. 3, with which we agree: that in order to justify official interference, the state must show “a compelling state interest centering about prison security, or a clear and present danger of a breach of prison security, * * * or some substantial interference with orderly institutional administration.” 319 F.Supp. at 904.
The Commissioner, in an affidavit by an assistant attorney general, claims that the distribution of the letter would impair the orderly administration of the institution by creating an alternate source of authority to challenge the officials. However, the union’s legality is being adjudicated in another proceeding, and the introduction of the letters will not lead irresistibly to that result before the conclusion of that other procedure; it merely keeps the parties to that proceeding informed of its progress and of issues on which they may have to advise counsel. He emphasized his fear of reprisals when, after delivery of the letters, he is obliged to inform the inmates that the union can never exist. As the very issue of its right to negotiate is being litigated in another forum, he need not and cannot honestly tell the inmates that it “can never” exist, but merely give his opinion on the probable outcome of that proceeding. And defendants’ fears that their own response to the letters will in turn cause a disturbance cannot justify a refusal to deliver them. Finally, the Superintendent states that he expects fights between pro and anti-union inmates.
These conclusory predictions are based on the fact that there are approximately ten fistfights a week at the institution (which houses 1900 inmates) and that there have been threats. against several guards over a period of months and a few unfounded rumors of “trouble.” But during this past fall of anxiety and disruption at prisons in New York and elsewhere, Green Haven was quiet; and we conclude that no factual basis is shown for the dire predictions of the defendants. Compare the situations in Lee v. Washington, 390 U.S. 333, 88 S. Ct.994, 19 L.Ed.2d 1212 (1968); Rhem v. McGrath, 326 F.Supp. 681 (S.D.N.Y. 1971) ; Long v. Parker, 390 F.2d 816, 822 (3d Cir. 1968). See Davis v. Lindsay, 321 F.Supp. 1134 (S.D.N.Y.1970).
We conclude that the court was correct in requiring the delivery of the letters and enclosures. The judgment, however, goes further and requires adherence to the present departmental regulation on attorney mail. This regulation goes beyond the requirements of Sostre in requiring that attorney mail be opened in the presence of the inmate, presumably to insure that it is checked only for contraband and is not read for content. This would inhibit the chilling effect of any procedure under which the inmate must trust prison staff not to read an opened letter. While we feel that this policy is desirable, (and has been required in the First Circuit, see Smith v. Robbins, 454 F.2d 696 (1972) ) and urge the Commissioner to pursue it, we think it unnecessary to go so far and to freeze the regulations on this matter on this appeal on the narrow issue of the present Legal Aid letters. The issue here is confined to mail from that source, in accordance with the principles set out herein. The injunction may be modified to require only the delivery of the letters and enclosures described above, and other mail from Legal Aid to the prisoners concerning their union claims and other legal problems.
. The rule on mail from attorneys is as follows: “You may correspond with any attorney on legal matters or regarding your legal rights. Your incoming and outgoing letters and enclosures will be opened and examined in your presence to insure the absence of contraband. The contraband will be censored.”
. In Marsh v. Moore, 325 F.Supp. 392 (D.Mass.1971), cited by the court below, the withholding of mail from an attorney to his client concerning a pending legal matter was held to be irreparable injury in the preparation and prosecution of the case, and to warrant preliminary relief.
. On the first amendment rights of prisoners, see Barnett v. Rodgers, 133 U.S. App.D.C. 296, 410 F.2d 995 (1969); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Seale v. Manson, 326 F. Supp. 1375 (D.Conn.1971); Payne v. Whitmore, 325 F.Supp. 1191 (D.Cal. 1971); Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.N.Y.1970); Sobell v. Reed, 327 F.Supp. 1294 (S.D.N.Y. 1971). See generally.Note: Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971).
. As the court said in Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970), “that prison inmates do not have all the constitutional rights of citizens in society— and may hold some constitutional rights in diluted form — does not permit prison officials to frustrate vindication of those rights which are enjoyed by inmates or to be the sole judges' — by refusal to mail letters to counsel — to determine which letters assert constitutional rights.” 430 F.2d at 551.
. If the documents do not constitute a call to illegal concerted action against the institution, then the appellants claim that they are merely correspondence between members of the public and the inmates that may be censored, as “many kinds of controls on the correspondence of the inmate” are constitutionally permissible. Sostre, supra, 442 F.2d at 199. Limits on those to whom he can write and on what he can say and censorship to remove offensive material are permissible. See Administrative Regulation No. 20, paragraph 12.
We think, however, the letter and documents cannot properly be termed merely correspondence sent to the prisoners by interested members of the public. The Legal Aid Society had no involvement in prisoner unions before they received the letter from the prisoners in Green Haven asking for advice on the formation of such a group. The letter specifically gave a legal opinion on how to form a union, its legal status, possible powers, etc. This appears to us bona fide legal advice despite the somewhat over-enthusiastic language in some parts of the letter. That language, given the clearly expressed lack of intent to incite any violence against the institution, does not change the legal nature of the letter.
. The rule in Sostre and most other cases is not limited to certain forms of legal action but extends to communication on any legal questions and issues intended to obtain redress for alleged unconstitutional rules or actions.
. Nolan v. Fitzpatrick, 326 F.Supp. 209, 214-217 (D.Mass.1971). Cf. Edwards v. South Carolina, 372 U.S. 229, 231, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Terminiello v. Chicago, 337 U.S. 1, 5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Of course, the likelihood of the communications themselves causing breach of security or of prison discipline or substantial interference with administration is to be measured in the light of the situation within the institution, rather than the conditions outside portrayed in Edwards and Terminiello. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). | This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. | [
"not ascertained",
"male - indication in opinion (e.g., use of masculine pronoun)",
"male - assumed because of name",
"female - indication in opinion of gender",
"female - assumed because of name"
] | [
1
] | songer_respond1_7_2 |
Allen L. GRIFFIN, Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Appellant.
No. 72-1126.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 11, 1972.
Decided Oct. 24, 1972.
Bernard G. Link, Baltimore, Md. (Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen, Detroit, Mich., on brief), for appellants.
Hugh G. Casey, Jr., Charlotte, N. C. (George S. Daly, Jr., and Casey & Daly, P. A., Charlotte, N. C., on brief), for ap-pellee.
Before SOBELOFF, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
SOBELOFF, Senior Circuit Judge:
Allen Griffin, the appellee, brought a civil action for damages against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. He claimed that the UAW had breached its duty of fair representation in handling the grievance based on his discharge by the Ford Motor Company. The case was tried before Judge McMillan and a jury and resulted in a verdict in favor of Griffin in the amount of $12,000. From this judgment, the UAW appeals.
In its brief the appellant raised several issues which were not pursued at oral argument. After a careful examination of the record, the briefs of the parties and the pertinent authorities, we conclude that these contentions are without merit. The only issue deserving discussion is whether there was sufficient evidence to support the jury’s finding that the Union breached its duty of fair representation.
I
The phrase “duty of fair representation” is a legal term of art, incapable of precise definition. St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, 130 (6 Cir. 1969). There is no code that explicitly prescribes the standards that govern unions in representing their members in processing grievances. Whether a union breached its duty of fair representation depends upon the facts of each case. Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191 (4 Cir. 1963); Trotter v. Amalgamated Ass’n of Street Railway Employees, 309 F.2d 584 (6 Cir. 1962), cert. den., 372 U.S. 943 (1963). But pronouncements made from time to time by the Supreme Court, articulating the somewhat hazy contours of the union’s obligations, do furnish a measure of guidance.
The doctrine of the “duty of fair representation” was first given currency by the Supreme Court in Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Although first propounded in the context of racial discrimination under the Railway Labor Act, the Court extended this duty to cases under Section 301 of the National Labor Relations Act. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). In representing its members, declared the Court, a union is permitted “a wide range of reasonableness,” but this latitude is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id. at 337-338, 73 S.Ct. at 686.
The outline of the duty of fair representation cognizable under Section 301 was further clarified in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). That case declared that a union is accorded considerable discretion in the handling and settling of grievances. The individual employee has no absolute right to insist that his grievance be pressed through any particular stage of the contractual grievance procedure. A union may screen grievances and press only those that it concludes will justify the expense and time involved in terms of benefiting the membership at large. Encina v. Tony Lama Boot Co., 448 F.2d 1264 (5 Cir. 1971). In the Vaca decision itself, the Court held that a union did not necessarily breach its duty of fair representation when it refused to take a member’s grievance to arbitration.
Nonetheless, the Supreme Court did not invest the union with a carte blanche. It sought to fashion an appropriate standard by which to measure union conduct. “[The doctrine of fair representation] includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. at 910. A union must conform its behavior to each of these three separate standards. First, it must treat all factions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action.
The repeated references in Vaca to “arbitrary” union conduct reflected a calculated broadening of the fair representation standard. Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, 453 F.2d 1018, 1023 n. 8 (9 Cir. 1972); Feller, “Vaca v. Sipes, One Year Later” in N.Y.U. Twenty-First Annual Conference on Labor 141, 167 (1969). While negligence in handling grievances has not been identified as breaching the union’s duty of fair representation, Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3 Cir. 1970), the courts have adopted the position that a union may not arbitrarily ignore a meritorious grievance or handle it in a perfunctory manner. Vaca v. Sipes, supra 386 U.S. at 191, 194, 87 S. Ct. 903; Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, supra, 453 F.2d at 1024 n. 10; De Arroyo v. Sindi-cato de Trabajadores Packinghouse, 425 F.2d 281, 284 (1 Cir. 1970); St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, at 130. Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation. A union may refuse to process a grievance or handle the grievance in a particular manner for a multitude of reasons, but it may not do so without reason, merely at the whim of someone exercising union authority. A union must especially avoid capricious and arbitrary behavior in the handling of a grievance based on a discharge — the industrial equivalent of capital punishment.
For a successful suit against a union for breach of its duty of fair representation, the employee “must also have proved arbitrary or bad-faith conduct on the part of the union in processing his grievance.” Vaca v. Sipes, supra, 386 U.S. at 193, 87 S.Ct. at 918 (emphasis added). We believe that looking at the evidence in the light most favorable to Griffin — as we are bound to do at this stage — there is sufficient evidence to support a conclusion of arbitrary or bad-faith conduct.
II
For seven years Allen Griffin worked for the Ford Motor Company at its parts depot in Charlotte, North Carolina. His problems apparently began in July, 1965, when he was disciplined by the Warehouse Operations Manager, D. J. Cashion, management’s second ranking member at the forty men depot, for allegedly reading a newspaper that lined the handtruck used by Griffin in his work. Cashion’s disciplinary action was successfully appealed by the Union. Subsequently, the relationship between the two men further deteriorated until they became embroiled in a fight at a local hockey game, with Cashion sustaining facial lacerations and cracked ribs. As a result of these fisticuffs, Griffin was discharged by Depot Manager Meares upon his return to work. In addition, a local court fined Griffin $50 for the assault.
J. W. Brown, who worked immediately under Cashion, was the chairman of the Union’s Local House Committee. His responsibilities included handling the preliminary stages of the grievance procedure. He filed with Cashion, the very man with whom Griffin had the fight, the grievance seeking Griffin’s reinstatement. Not surprisingly, Cashion, representing Ford, refused reinstatement. After Griffin’s assault conviction, Brown recommended to his fellow committee members that Griffin’s grievance be withdrawn. When one of the committee members objected, Brown threatened to resign. The grievance was withdrawn by a 2-1 vote.
Griffin then appealed to the membership of his Local to reverse the decision to withdraw his grievance. A vote was taken and it was decided that Griffin’s grievance be pursued. In protest of the members’ action, House Committee Chairman Brown resigned his position as House Chairman. But the action of the House Committee in withdrawing Griffin’s grievance was upheld by an appeals committee of the International; although the committee recommended that efforts to secure Griffin’s reinstatement continue. Finally, Ford agreed to reinstate Griffin’s grievance and allow it to be processed through normal channels on the condition that Griffin waive any claim for back pay prior to the time the grievance was reinstated. Griffin accepted this proposal. The revived grievance, “frozen dead” after the two-year hiatus, was eventually heard by the Ford Umpire, who on March 22, 1968, upheld the discharge.
Ill
The Union’s insistence on filing the discharge grievance with Cashion, the man with whom Griffin had fought, cannot be justified. It represents a stubborn refusal to recognize the inequity of placing the matter in the hands of a hostile person — Griffin’s antagonist. Although the Union may have acted in good faith, grieving the discharge in this manner can be viewed — as the jury apparently viewed it — as the equivalent of arbitrarily ignoring the grievance or handling it in a perfunctory manner. Vaca v. Sipes, supra, 386 U.S. at 191, 194, 87 S.Ct. 903. The “arbitrary” standard elucidated in Vaca was thus breached.
The Union attempts to justify submitting the grievance to Cashion by pointing out that the only other person with whom the grievance could have been filed was Meares, the Depot Manager. This, the UAW maintains, “was at best a Hobson’s choice: Cashion, the man Griffin assaulted on the one hand, and Meares, the man who discharged Griffin, the very act that was being protested, on the other hand.”
The Union’s contention overstates the case. Cashion had a history of difficulties in supervising the men under him. There was evidence that he was “very high tempered” and that he was willing to use his position of authority to punish those “who crossed him.” Meares, at the time of the discharge, had heard only Cashion’s version of the fight and the incidents that led np to it. It is quite possible that if the grievance had been immediately filed with Meares and Cashion’s history of pugnacity with workers in general, and his goading of Griffin in particular, had been adequately presented, Meares would have mitigated his disciplinary action. The fact that Meares refused the grievance after it was reinstated nearly one and one-half years later has no relevance. The passage of time and the hardening of positions had taken their effect.
There was also evidence presented to the jury from which it might have found the Union’s handling of the grievance to have been motivated by bad faith. After the membership of the Local voted to pursue Griffin’s grievance, House Committee Chairman J. W. Brown resigned his position to protest the members’ action. He was replaced by George R. Kennedy. On April 8, 1966, Kennedy wrote Walter P. Reuther, the late president of the UAW, to express his opinion that the action of the Local in dropping Griffin’s grievance was the result of the friendship between Cashion and J. W. Brown. In the course of the letter Kennedy stated poignantly:
Mr. Cashion, having been a personal friend of the former Chairman [Brown] for many years, as well as a very good friend with one of the committeemen and a close friend of the union member who testified against Mr. Griffin, used these friendships to influence the committee’s decision to drop the case as far as the committee was concerned. Therefore, when the membership overruled the committee, the Chairman, Mr. J. W. Brown resigned.
In my opinion those officers who were in a position to help Mr. Griffin, were trying to find as many reasons as they could not to help him. This is illustrated by the very fact that I am writing this letter because Mr. T. C. Brown, our Recording Secretary, and the brother of Mr. J. W. Brown, the resigned Chairman, refused to answer your letter of March 80, 1966. (Emphasis added.)
There is sufficient evidence in the record to support the jury’s finding that the Union breached its duty of fair representation in handling Griffin’s discharge grievance. Therefore, the judgment of the District Court is hereby
Affirmed.
. Earlier in the summer, the two men almost became involved in a fight when Cashion invited Griffin outside the plant behind the railroad tracks to settle their difference and to “whip his blank” — an invitation declined by Griffin.
. This characterization was given the reinstated grievance by Judge McMillan. (Tr. 403.)
. Appellant’s Reply Brief at 2-3. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
1
] | songer_genapel1 |
Subsets and Splits