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songer_usc2 | 49 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 49. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES ex rel. CITY OF LOS ANGELES v. INTERSTATE COMMERCE COMMISSION.
Court of Appeals of District of Columbia.
Submitted January 8, 1929.
Decided February 25, 1929.
No. 4863.
Edwin C. Blanchard, of Washington, D. C., and Max Thelen, of San Francisco, Cal., for appellant.
Daniel W. Knowlton, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
Judgment reversed 50 S Ct. 53, 74 L. Ed. —.
VAN ORSDEL, Associate Justice.
The city of Los Angeles, Cal., a municipal corporation, filed a petition for mandamus in the Supreme Court of the District of Columbia to compel defendant, the Interstate Commerce Commission, to make an order requiring the Southern Pacific, the Atchison, Topeka & Santa Fé, and the Los Angeles & Salt Lake Railroad Companies to construct, maintain, and operate, a union passenger station in the city of'Los Angeles, at a point near what is known as the Plaza.
It appears that in 1921 the Railroad Commission of California, in a proceeding before it, ordered the carriers named to file plans for the erection of a union station at the point above designated in the city of. Los Angeles, and in a subsequent order required the carriers to secure sufficient land for the construction of the station and terminal, to submit plans therefor, and, upon approval by the commission, to proceed with the construction. The carriers appealed from the decision to the Supreme Court of California. Los Angeles & S. L. R. Co. v. Railroad Commission, 190 Cal. 214, 211 P. 460. The court reversed the order on the ground that the Transportation Act of 1920, 41 Stat. 456, had vested full authority over union depot facilities of interstate carriers by railroads in the Interstate Commerce Commission, divesting the state commission of jurisdiction in the premises. From this decision the state commission carried the ease to the Supreme Court of the United States.
While the ease was there pending, the city of Los Angeles filed a complaint with the Interstate Commerce Commission praying the Commission to require the defendant carriers to construct and operate the union passenger station in question. During the pend-ency of this ease before the Commission, the Supreme Court rendered its opinion in Railroad Com. of Cal. v. Southern Pac. Co., 264 U. S. 331, 44 S. Ct. 376, 68 L. Ed. 713, hereafter for convenience referred to as the Los Angeles Case, in which the judgment of the Supreme Court of California (190 Cal. 214, 211 P. 460) was affirmed, the court holding, in substance, however, that defendant carriers could not be required to provide a union station and extend their terminal tracks until the Interstate Commerce Commission had acted under paragraphs 18 to 21 of section 402 of the Transportation Act (49 USCA § 1 (18-21). •
The Commission then issued its report in the proceeding instituted by the City of Los Angeles, City of Los Angeles v. Los Angeles & S. L. R. Co., 100 I. C. C. 421, holding that it was powerless “to require carriers to construct union passenger stations under conditions such as are here present.” It, however, made findings in accordance with its interpret tation of the decision of the Supreme Court, to the effect that public convenience and necessity required such extensions and abandonments of lines and service and joint use of terminal tracks as would be necessary in the establishment and operation of a union passenger station at the point designated, and that the expense would not-impair the ability of the roads to perform their respective duties to the public. The Commission, however, refused to issue certificates as provided in the Transportation Act, but retained jurisdiction of the case, reserving the right to alter its findings in event that the plan evolved by the carriers or the state commission for the establishment of a union station might be materially different from that “here considered to be in the public interest.”
The state commission reopened the ease, and on further hearing rendered a decision, with findings substantially identical with those made by the Interstate Commerce Commission, and in addition found that public convenience and necessity required the defendant carriers to construct a union passenger station at the point designated, with the terminal facilities incidental thereto, which in its opinion could be done at a cost of $10,-000,000. The state commission thereupon made an order requiring defendant carriers to carry out its findings when the Interstate Commerce Commission should promulgate an order authorizing the construction, extensions, and abandonments, as directed by the state commission.
The city of Los Angeles and the state commission thereupon filed with the Interstate Commerce Commission petitions asking the Commission to issue certificates in accordance with the findings theretofore made by it, and to order said carriers to construct and thereafter operate the union passenger station in compliance with the plan announced by the state commission. The carriers filed answers opposing the relief sought. Evidence was taken, and the Interstate Commerce Commission, on May 8, 1928, rendered its report and order affirming the findings made in its earlier report with the finding that the report of the state commission is sufficiently supported in the record, and it accordingly issued certificates in conformity, with said findings. Los Angeles Passenger Terminal Case, 142 I. C. C. 489’. The -Commission, however, adhered to the decision reached in the earlier ease to the effect that it was not empowered to require the construction of a union passenger station, and denied the application in this particular.
It was this decision which brought about the present suit, and, from the decision of the court below dismissing the petition, this' appeal is prosecuted.
We think the Interstate Commerce Commission was in error in holding that it is without power under the Transportation Act to require the carriers in question to construct a union station. The purpose in the mind of Congress in vesting in the Commission the extensive control over interstate railways, set forth in the Transportation Act, is expressed in Dayton-Goose Creek Railway Co. v. United States, 263 U. S. 456, 478, 44 S. Ct. 169, 172 (68 L. Ed. 388, 33 A. L. R. 472), where the court said: “The new Act seeks affirmatively to build up a system of railways prepared to handie promptly all the interstate traffic of the country. It aims to give the owners of the railways an opportunity to earn enough to maintain their properties and equipment in such a state of efficiency that they can carry well this burden. To achieve this great purpose, it puts the railroad systems of the country more completely than.' ever under the fostering guardianship and' control of the Commission, which is to supervise their issue of securities, their car supply and distribution, their joint use of terminals, their construction of new lines', their abandonment of old lines, and by a proper division of joint rates, and by fixing adequate rates for interstate commerce, and in case of discrimination, for intrastate commerce, to secure a fair return upon the properties of the carriers engaged.”
-This broad supervisory power, it is urged; does not extend to the requirement that an interstate carrier or system of carriers may be required by the Commission to install an interstate union station; but running throughout the act are provisions which authorize the Commission to impose most drastic limitations on a carrier’s control and use of its property in order to secure the convenience and welfare of the shipping and traveling public in interstate commerce. It specifically imposes upon the Commission the power and duty, when required by public convenience and necessity, to convert the passenger and freight station of one interstate carrier into a union station or depot. The inconsistency of granting this power without the analogous power of requiring a number of carriers converging at -a given point to erect, for the convenience of the traveling public and the carriers themselves, an interstate union station is pointed out in the Los Angeles Case, at page 344 of 264 U. S. (44 S. Ct. 378), where the court said: “This would be giving power to the Interstate' Commerce Commission to provide for a small and contracted union station of interstate carriers, limited to the terminals of one carrier, and would leave the larger and more important union stations of interstate carriers to the control of state commissions. We think, however, that means of control over installation of such new union stations for interstate carriers is given to the Interstate Commerce Commission in amended paragraphs (18 to 21) of section 402.”
Under this construction of paragraphs 18 to 21, it is clear that an interstate carrier is not permitted to extend its line of railroad, or to construct a new line, or acquire a line of road or extension thereof, or engage in transportation over such line or lines, until it has procured from the Interstate Commerce Commission a certificate that public convenience requires it. Neither can a carrier abandon all or any portion of its line without a similar certificate. As was further said in the Los Angeles Case: “Such a certificate is, we think, neeessary in the construction of a new interstate union station, which involves a substantial and expensive extension of the main tracks or lines of interstate carriers who theretofore have maintained separate terminals. * * * Until the Interstate Commerce Commission shall have acted under paragraphs 18 to 21 of section 402 of the Transportation Act, the respondent railways cannot be required to provide a new interstate union station and to extend their main tracks thereto as ordered by the State Railroad Commission.”
Following this suggestion, the Interstate Commerce Commission issued the following certificate: “It is hereby certified, that the present and future public convenience and necessity (1) require the construction by the Los Angeles & Salt Lake Railroad Company, the Southern Pacific Company, and the Atchison, Topeka & Santa Fé Railway Company, of extensions of their respective main lines of railroad in the City of Los Angeles, California, so as to reach and serve a union passenger station and terminal which they may construct in the Plaza district, pursuant to the order of the Railroad Commission of the State of California to that effect; (2) require the construction of the necessary extensions of their main lines, and permit the abandonment of such other portions of their main lines, as may be neeessary to provide for the rearrangement of passenger and freight routes incidental to the convenient and proper operation of such union passenger station and terminal; (3) permit the abandonment and operation of all passenger and freight train service, except incidental freight-train and freight-switching service, on the main line of the Southern Pacific on Alameda Street from College Street to east Fifteenth Street, inclusive, in the City of Los Angeles, California; and (4) require the use by any defendant steam carriers of so much of the terminal main-line track or tracks of any of the other defendant steam carriers in the City of Los Angeles, California, as may be incidental, and neeessary or convenient, to the proper operation of such union passenger station and terminal.”
It will be observed that the Commission, in its certificate as to necessity and convenience, omits any certification to the fact “that the expense involved therein will not impair the ability of the carrier to perform its duty to the public.” This, however, we think is affirmatively implied in the certification as to necessity and convenience. Especially, in view of the findings of fact found by the Commission in its earlier decision, 100 I. C. C. 421, 459, 460, to the effect that the public convenience and necessity requires “the extension by defendants of their respective main lines of steam railroad in the City of Los Angeles, Calif., so as to reach and properly serve any union passenger station and terminal” at the point designated. Following these findings of fact, the Commission further found as follows: “That the extensions referred to in the preceding paragraph are reasonably required in the interest of the publie convenience and necessity, and that the expense involved therein will not impair the ability of defendants to perform their respective duties to the public.” In view of this express finding of fact by the Commission, the court would certainly not be justified in failing to determine the fundamental question of jurisdiction here involved merely upon the failure of the Commission to make an express certification on this point. The point at most is not jurisdictional, but incidental to the exercise of jurisdiction by the Commission. The question before us is not one involving direction of the Commission as to how it shall act, but merely the requirement that it take jurisdiction of the matter of establishing proper terminals and a union station at the point designated and proceed therein as required by law. Interstate Commerce Com. v. U. S. ex rel. Humbolt Steamship Co., 224 U. S. 474, 32 S. Ct. 556, 56 L. Ed. 849.
We think the act clearly manifests the intention of Congress to give the Interstate Commerce Commission jurisdiction over the rearranging and extension of terminals and the establishment of union depots by converging interstate railroad lines, and to limit the jurisdiction of state commissions to matters purely intrastate and such exercise of police power as may be essential over interstate lines within the state.
Paragraph 22 of section 402 (49 USCA § 1 (22) provides as follows: “The authority of the Commission conferred by paragraphs (18) to (21), both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching, or side tracks, located or to be located wholly within one State, or all street, suburban, or interurban electric railways, which are not operated as a part or parts of a general steam railroad system of transportation.”
The court in the Los Angeles Case at page 345 of 264 U. S. (44 S. Ct. 379) interpreted the above limitation upon the power of the Interstate Commerce Commission as follows: “This is a palpable distinction between the main tracks of an interstate carrier, and its spur, industrial, switching or side tracks, and shows the legislative intention to retain any substantial change in the main tracks within the control of the Interstate Commerce Commission. It may well be that a mere relocation of a main track of an interstate carrier which does not involve a real addition to, or abandonment of, main tracks and terminals, or a substantial change in destination, does not come within the paragraphs 18 to 21. One might, too, readily conceive of railroad crossings, or connections of interstate carriers in which the exercise by a state commission of the power to direct the construction of merely local union stations or terminals without extensions of main traeks and substantial capital outlay should be regarded as an ordinary exercise of the police power of the state for the public convenience and would not trench upon the power and supervision of the Interstate Commerce Commission in securing proper regulation of an interchange of interstate traffic or passengers.”
We come now to the conceded facts as set forth in paragraph XVIII of the petition. The railroad terminal properties and track-age which would be used in carrying out the union depot plan, including the entire track-age along the Los Angeles river and nearly all of the land on which the union station is to be erected, are now owned by the three carriers here involved. The small portion of land still in private ownership is needed only for a proper approach to the main depot and for properly completing the project as planned. This land could be acquired, of course, by the carriers, either by purchase or by eminent domain under direction of the appropriate public authority.
It thus appears that the whole project is such that under the act it has been removed from the jurisdiction of the state commission and placed within the jurisdiction of the Interstate Commerce Commission. If, in carrying out the project, necessity arises for the state to exercise its police power in the matter of protecting street crossings, etc., it would be merely incidental to the general scheme, co-operative with and not hostile to the jurisdiction of the Interstate Commerce Commission.
The broad power conferred upon the Interstate Commerce Commission is set forth in paragraphs 3 and 4 of section 405 of the act (49 USCA § 3 (3, 4). Paragraph 4 empowers the Commission to regulate the terminal’ facilities of converging carriers to the extent of requiring an interchange of track-age by the different lines to facilitate the better operation and handling of freight and passengers.
Paragraph 3 provides as follows: “All carriers, engaged in the transportation of passengers or property, subject to the provisions of this Act, shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers or property to and from their several lines and those connecting therewith, and shall not discriminate in their rates, fares, or charges between such connecting lines, or unduly prejudice any such connecting line in the distribution of traffic that is not specifically routed by the shipper.” This section we think vests the Interstate Commerce Commission with almost unlimited power in the matter of establishing terminals and union stations for the proper interchange of traffic between the converging interstate railroad lines. The term “reasonable, proper, and equal facilities” is broad and comprehensive enough to include not only trackage but adequate station facilities.
■ The carriers, through counsel, challenge the constitutional power of Congress to vest th'e Interstate Commerce Commission with jurisdiction to order the construction and operation of a union passenger station as prayed for by the city of Los Angeles. This contention is based on decisions of the courts to the effect that the Commission may not order the carriers to perform a different service than that which they have undertaken to render. It is well established that, while public authority under legislative sanction and in the exercise of police power may require railroad companies to construct and operate union passenger stations, the facts tip on which such orders are based must be reasonable.
In view of the facts in the instant case, the contention that the carriers cannot be required to extend their tracks to reach the proposed union station is without merit. The situation here disclosed is most reasonable and well within the jurisdiction of administrative authority. The three interstate carriers involved all enter the city of Los Angeles from the north, and pass under what is known as the North Broadway viaduct over the Los Angeles river. The main lines of the Southern Pacific and Santa Fé extend along the •west bank of the river, and the main line of the' Salt Lake Road runs along the east bank. The Santa Fé’s track runs directly across the site of the proposed terminal, the Southern Pacific track also extends across the site "along Alameda Street, and the Salt Lake’s branch line track extends directly across the river from the site. It will be observed that tb reach the terminal, instead of any material exténsion of trackage, it means merely a convenient readjustment of existing tracks.
Prior to the enactment of the Transportation Act of 1920, the states in many instances, either by Constitution or statute, had vested jurisdiction in their Railroad Commissions to compel the construction of union stations. Railroad Commission of Alabama v. Alabama Northern Railway Co., 182 Ala. 357, 62 So. 749; Railroad Commission of Alabama v. Alabama Great Southern Railway Co., 185 Ala. 354, 64 So. 13, L. R. A. 1915D, 98; Mayor of Worcester v. Norwich & Worcester R. R. Co., 109 Mass. 103; Dewey v. Atlantic Coast Line, 142 N. C. 392, 55 S. E. 292; State v. St. Louis Southwestern Ry. Co. (Tex. Civ. App.) 165 S. W. 491. These state de^eisions go to the extent of upholding orders requiring a carrier to acquire additional property through eminent domain, the abandonment of existing passenger stations, or the acquiring of the right to use the property of a rival railroad.
It was in effect held by the Supreme Court of California in the present controversy (190 Cal. 214, 211 P. 460) that the power vested in the State Railroad Commission of that state had passed by the Transportation Act of 1920 to the Interstate Commerce Commission. In this instance the State Railroad Commission derived its jurisdiction through a provision of the Constitution of the state of California. It was held, nevertheless, that Congress, in the exercise of its constitutional power to regulate, interstate commerce, could divest the State Railroad Commission of its jurisdiction and vest it in the Interstate Commerce Commission. This ruling was affirmed in the Los Angéles Case.
The procedure adopted by the city, of Los Angeles in applying to the Interstate Commerce Commission for an order requiring the carriers to establish the union station in question was approved in the concluding words of the opinion in the Los Angeles Case, where-the court said: “We were advised by statements at the bar that, after the California Supreme Court handed down its decision in this ease, the City of Los Angeles filed a petition with the Interstate Commerce Commission, asking for an order to provide, maintain, and use a union station, that a hearing followed, and that, pending the decision in this court, the matter is held under consideration. For the reasons given, we think the course taken by the City of Los Angeles was the correct one.”
The judgment is reversed, with costs, and the cause is remanded for further proceedings, not inconsistent with this opinion.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 49. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_usc2sect | 841 | 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 second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. Pablo CARREON, Defendant-Appellant.
No. 79-2130.
United States Court of Appeals, Seventh Circuit.
Argued April 30, 1980.
Decided July 9, 1980.
Adam Bourgeois, Chicago, 111., for defendant-appellant.
Thomas P. Sullivan, U.S. Atty., Douglas Miller, Asst. U.S. Atty., Chicago, 111., for plaintiff-appellee.
Before CUMMINGS and BAUER, Circuit Judges, and EAST, Senior District Judge.
The Honorable William G. East, Senior District Judge of the United States District Court for the District of Oregon, is sitting by designation.
BAUER, Circuit Judge.
Defendant Pablo Carreon appeals from his conviction on one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and on seven counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Carreon contends that his statutory and constitutional speedy trial rights were violated, that he was entrapped, and that his rights under the double jeopardy clause of the Fifth Amendment were violated. We affirm the judgment of conviction on all counts.
I. Speedy Trial Rights
A. Procedural History
The original indictment against Carreon was filed on April 10, 1975. Shortly thereafter, he failed to appear at a scheduled plea hearing, and his case was placed on the district court’s fugitive calendar, where it remained for over a year. Ultimately, Carreon reappeared, and his case was assigned to Judge Alfred Y. Kirkland. A hearing was set for September 2, 1976, at which time it was contemplated that Carreon would plead guilty to two counts of the indictment and that the government would seek dismissal of the remaining counts.
Because Judge Kirkland was unavailable on September 2, the hearing on Carreon’s guilty plea was held before Judge John F. Grady. After eliciting Carreon’s version of the facts, Judge Grady refused to accept the plea, ruling that an entrapment defense would be available if the facts were as Carreon had stated. On the following day, however, Carreon retendered his guilty plea to Judge Kirkland, who accepted it without detailed questioning. Carreon was sentenced to two concurrent terms of four years of imprisonment to be followed by three years of parole and was duly imprisoned.
On March 10, 1977, Carreon filed a petition under 28 U.S.C. § 2255 seeking to set aside his conviction on the ground that his guilty plea had been involuntarily given. The district court granted summary judgment for the government on the petition, and Carreon appealed to this Court. On May 3,1978, while that appeal was pending, Carreon was released on parole; he had served twenty-six months in prison, including credit for time served prior to his conviction. On June 14, 1978, this Court reversed the district court’s grant of summary judgment on the § 2255 petition, ruling that Carreon’s guilty plea had not been taking in conformity with Fed.R.Crim.P. 11 and had not been made voluntarily. Carreon v. United States, 578 F.2d 176 (7th Cir. 1978) (Carreon I).
Prior to June 28, 1978, when this Court’s mandate in Carreon I would have issued, the government moved for an extension of time in which to petition for rehearing. That motion was granted, and the mandate of this Court was stayed until July 28,1978. The government ultimately determined not to petition for rehearing, but, apparently because of a clerical oversight, the mandate did not issue on July 28. Meanwhile, Judge Kirkland conducted status calls in the case on June 22, August 8, and September 20, 1978; at the third status call, Judge Kirkland ordered that the case be removed from his calendar pending disposition by this Court. This Court’s mandate in Carreon I finally reached the district court on December 5,1978, but no further action was taken in the district court until May 1,1979, when Judge Kirkland’s illness caused the case to be reassigned to Judge Nicholas J. Bua.
Judge Bua held a status hearing on May 30, 1979; at that hearing Judge Bua vacated Carreon’s conviction and sentence and ordered that he be permitted to withdraw his plea. The § 2255 action was then dismissed.
On June 15,1979, the government moved to reopen the criminal case. Chief Judge James B. Parsons granted the motion and assigned the case to Judge Joel M. Flaum for arraignment. The arraignment was first set for June 26, but was continued to July 9,1979, because Carreon was unavailable on the earlier date. On July 9, Carreon pleaded not guilty to all counts of the indictment, and trial was set for August 27, 1979.
On July 23, 1979, Carreon moved to dismiss the indictment with prejudice on speedy trial grounds. While this motion was pending, a superseding indictment was returned on August 21, 1979. On August 27, Judge Flaum denied Carreon’s motion to dismiss the prior indictment with prejudice, ruling that it should be dismissed without prejudice. Carreon then pleaded not guilty to all counts of the superseding indictment. A bench trial was had, after which Judge Flaum found Carreon guilty on all counts and sentenced him to two years of probation on each count, the sentences to run concurrently. This appeal followed.
B. Speedy Trial Act Rights
Carreon first contends that the trial court erred in applying the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. (1976). Specifically, Carreon maintains that § 3161(e) applies to this case, that its provision requiring retrial within sixty days of the final action occasioning retrial was violated, and that the trial court should have remedied the violation by dismissal of the original indictment with prejudice under the sanctions provisions in § 3162. The government responds that § 3161(i) is the applicable subsection, that even if § 3161(e) were applicable it was not violated, that no sanctions are available under the Act for a violation of either subsection, and that, in any event, the trial court correctly applied § 3162 in ruling that dismissal of the prior indictment should be without prejudice.
Our analysis of the Speedy Trial Act issue does not differ materially from that of the district court. The district court apparently assumed that the sanctions of § 3162 were applicable in this case to a violation of either § 3161(e) or § 3161(i). For purposes of our decision, we will also assume their applicability. The district court next reasoned that it need not determine whether § 3161(e) was applicable, as Carreon contends, or whether § 3161(i) applied, as the government urges, because § 3161(e) had not been violated, and because, although § 3161(i) may have been violated, that violation would not justify dismissal of the original indictment with prejudice under the provisions of § 3162(a)(2). We agree that we need not decide which subsection of § 3161 applies to the facts at bar, but we prefer to base our ruling on the broader ground that, even assuming a violation of the time limits of either subsection, dismissal of the original indictment with prejudice was not mandated by the provisions of § 3162(a)(2). The district court therefore acted within its discretion in dismissing the first indictment without prejudice.
In determining whether dismissal under § 3162(a)(2) should be with or without prejudice, the court must consider “among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of reprosecution on the administration of this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(2). As the district court noted, two of these factors favor dismissal without prejudice in this case. First, Carreon’s crimes were serious, and the sanction of dismissal with prejudice should therefore be imposed only for a correspondingly serious delay. Second, the adverse impact of reprosecution on the administration of justice and the Speedy Trial Act would be slight. The defendant claimed no prejudice due to the delay, the government did not intentionally seek delay, and the unusual circumstances of the case would be unlikely to recur, thus causing the sanctioning of similar delays in the future.
Consideration of the third factor, the facts and circumstances that led to the delay, also indicates that dismissal without prejudice was proper. The total delay of which Carreon appears to complain amounted to just over a year, or from June 14, 1978, when Carreon I was issued, to July 23, 1979, when Carreon moved for dismissal. Carreon has no cause to complain of the delay resulting from the stay of this Court’s mandate until July 28, 1978. The delay in issuance of the mandate until December 5, 1978 was due not to the government but to a court error; although the government did not move for issuance of the mandate, neither did Carreon, who was the prevailing party and who makes no contention that he was not represented by counsel during the delay. Similarly, the delay between December 5,1978 and May 30,1979 was apparently due to Judge Kirkland’s illness and the fact that Judge Kirkland had removed the case from his calendar. Carreon took no steps in the district court to cut short this delay. Finally, we note that the two-week delay between June 26 and July 9, 1979 was due to Carreon’s unavailability. Because the delay was in major part due to the negligence of the parties and oversight in the courts, and because Carreon failed to assert his speedy trial rights or otherwise move to expedite the case prior to July 23, 1979, the reasons for the delay do not mandate dismissal of the prior indictment with prejudice. Accordingly, the trial court acted within its discretion in determining that to try Carreon would not violate the Speedy Trial Act.
C. Sixth Amendment Speedy Trial Right
What we have already said largely disposes, we think, of Carreon’s complaint that his Sixth Amendment speedy trial right was violated. Although Sixth Amendment speedy trial issues require a careful, ad hoc balancing approach, four critical factors are to be examined in every case. These are the “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 533, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Considering these factors, we conclude that no Sixth Amendment violation occurred.
The length of delay here involved was approximately one year. Though significant, the delay was not extreme. See United States v. Joyce, 499 F.2d 9, 20 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974). The delay was due, in part, to the government’s negligence in failing to move to expedite the case. Such negligence is to be “weighted less heavily” than intentional delay. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192. The delay was also due to Carreon’s negligence, however; Carreon failed to asset his right during the entire period of the delay. As the Supreme Court emphasized in Barker, “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532, 92 S.Ct. at 2193. Finally, Carreon has alleged no prejudice as a result of the delay. He was not in custody during the delay, he alleges no anxiety or concern as a result of the delay, and, most importantly, he does not allege any impairment of his ability to defend himself as a result of the delay. Thus, applying the Barker v. Wingo balancing test, we conclude, as did the trial court, that Carreon’s Sixth Amendment right to a speedy trial was not infringed.
II. Entrapment
Carreon next contends that the trial court erred in ruling that he was not entrapped. He argues that a transcript of his testimony given at the separate trial of his co-indictee and introduced by the government in its case-in-chief against Carreon raised the issue of entrapment, that the issue remained unrebutted by the remainder of the government’s case, and that he was therefore entitled to acquittal as a matter of law.
In his prior testimony, Carreon stated, in substance, that he had not been involved in drug sales until his lover Maria Hernandez, who was then a government informant, induced him, by persistent requests and by use of her position of influence with him, to sell heroin. The trial court ruled that Carreon’s prior testimony did not require a finding of entrapment as a matter of law, that testimony given by government agents had demonstrated Carreon’s predisposition beyond a reasonable doubt and had thus rebutted any evidence of entrapment contained in Carreon’s prior testimony, and that, accordingly, Carreon had not been entrapped. Having reviewed the trial transcript and the transcript of Carreon’s former testimony, we find the trial court’s ruling on entrapment to be supported by sufficient evidence.
Carreon does not contend that the use by the government of an informant who was also his lover violated the due process clause of the Fifth Amendment, but rather argues only that the government failed to prove beyond a reasonable doubt his predisposition to sell heroin. Under settled standards, predisposition is adequately proved, and an entrapment defense is not, therefore, available, see Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), if the government demonstrates that the accused exhibited “a willingness to commit the crime charged as evidenced by accused’s ready response to the inducement.” United States v. Viviano, 437 F.2d 295, 299 (2d Cir.), cert. denied, 402 U.S. 983, 91 S.Ct. 1659, 29 L.Ed.2d 149 (1971). Under this standard, the government sustained its burden.
First, many portions of Carreon’s prior testimony indicating reluctance on his part were contradicted by the testimony of government agents. As Carreon himself did not take the stand, the trial court had no opportunity to observe his demeanor or assess his credibility; given this and Carreon’s obvious interest in the case, the court may have credited the agents’ testimony and discredited Carreon’s former testimony. Second, the agents testified to many incidents which, if believed, were sufficient to demonstrate Carreon’s predisposition. Among these were that Carreon had told agents that he desired to sell larger quantities of heroin to increase his profit, had informed agents that one sample of heroin was of poor quality, had initiated contact with the agents at least once, had endeavored to promote sales by informing the agents of the whereabouts of his source and the timeliness of his deliveries, had delivered the heroin in devious ways that tended to demonstrate his experience in drug sales, and had provided free samples to induce sales. Accordingly, we find sufficient evidence of record to support the trial judge’s finding that Carreon was not entrapped.
III. Double Jeopardy
Finally, Carreon contends that his rights under the double jeopardy clause of the Fifth Amendment were violated. His argument is in two parts. First, he argues that jeopardy attached when we was sworn to give testimony in the plea hearing before Judge Grady, and that he could not be later tried, therefore, upon the six counts of the indictment that were subsequently dismissed pursuant to the plea agreement that resulted in the guilty plea entered in Judge Kirkland’s court. Carreon cites no authority for this novel interpretation of the concept of jeopardy, and we decline the invitation to declare a rule that would undermine the entire system of plea bargaining.
Second, Carreon contends that his sentence of two years probation violates the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that “the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” Id. at 718-19, 89 S.Ct. at 2077. It does so, Carreon says, because the twenty-six months of imprisonment plus some months of parole that Carreon actually served more than cancel out a two-year probation term, and because, therefore, the crediting of the former against the latter requires that Carreon should have no remaining sentence to serve.
Initially, we note that this issue was not raised in the district court by a post-sentencing motion. Accordingly, it cannot be considered on appeal unless it involves plain error or a defect affecting substantial rights. Fed.R.Crim.P. 52(b). We find no plain error, and none of Carreon’s substantial rights were affected. Carreon was sentenced to two years of probation on each of the eight counts of the indictment, the sentences to run concurrently. Even if we were to find a defect under Pearce with respect to the sentence on the two counts of the indictment of which Carreon had previously been convicted and on which he had previously been sentenced, the sentence of probation on the six remaining counts would still stand. Accordingly, no substantial right has been affected. See United States v. Peters, 617 F.2d 503, 506 (7th Cir. 1980).
Although we need not go further, we note also that the trial court plainly intended to sentence Carreon to time served, to suspend that sentence, and to impose the two years of probation in lieu of what would have been a mandatory three-year special parole term under 21 U.S.C. § 841(b)(1)(A) had the sentence to time served not been suspended. The sentencing order read: “[T]he imposition of sentence is hereby suspended and defendant is placed on probation for a period of TWO (2) YEARS.” During the sentencing hearing, Judge Flaum stated:
All right, I deem that the custody that Pablo Carreon has served in this case is sufficient, the 23 months that he has served . . . . However, I do deem it appropriate there be some probationary time for this offense, and I’m going to sentence Pablo Carreon to two years probation .
The apparent reason that the suspended sentence was given was that Judge Flaum wished to avoid the mandatory parole term provisions of § 841(b)(1)(A); defense counsel was aware of this problem, and, indeed, he requested at the sentencing hearing that, for this reason, only a short term of probation be imposed. Counsel cannot argue now that the action formerly requested was in error, especially since the issue was not first raised in the district court. Moreover, we are at a loss to understand what Carreon could gain by prevailing on this issue. The proper remedy, were a Pearce violation to be found, would be to vacate the sentence on the two counts and remand for resentencing. Carreon’s argument appears to be that the trial court’s alternatives on remand would be either to increase the sentence or to set Carreon totally at liberty. The trial judge has already said that he finds a period of continued supervision necessary, and thus the likely outcome of a remand would be a sentence to time served plus the § 841(b)(1)(A) three-year parole term. This would leave Carreon with a heavier sentence than the one he currently bears. The trial court was lenient in sentencing Carreon to a period of probation, which when added to the terms of imprisonment and parole that he had already served, amounted to less than the total period of his prior sentence. We think Carreon has no complaint on this score.
For all of the foregoing reasons, the judgment of conviction is affirmed.
Affirmed.
. We note that the trial court applied the Act as it stood prior to The Speedy Trial Act Amendments Act of 1979, Pub.L.No. 96-43, 93 Stat. 327 (the post-amendment text of the Act appears at 18 U.S.C.A. § 3161 et seq. (Supp. 1980)), which became effective on August 2, 1979. The parties have not challenged the correctness of that action, and no issue has been raised on appeal concerning the applicability of the 1979 amendments to this case. Nevertheless, the parties have referred in their briefs to several of the changes made by the 1979 amendments, and we have therefore examined the amendments and determined that application of them to this case would not alter our result. Because the parties appear to agree that the pre-amendment text of the Act applies, we will confine our analysis to that text.
. Prior to the August 2, 1979 amendments to the Act, 18 U.S.C. § 316(e) provided, in pertinent part,
If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within sixty days from the date the action occasioning the retrial becomes final. . . .
The 1979 amendments extended this time period from sixty to seventy days. See 18 U.S.C.A. § 3161(e) (Supp. 1980).
. The relevant portion of 18 U.S.C. § 3162, § 3162(a)(2), was unchanged by the 1979 amendments to the Act, and provides, in pertinent part,
If a defendant is not brought to trial within the time limit required by section 3161(c) extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion . . . . In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.
Section 3161(c) is set out in note 4 infra.
. 18 U.S.C. § 3161(i), which was not changed by the 1979 amendments provides,
If trial did not commence within the time limitation specified in section 3161 because the defendant had entered a plea of guilty or nolo contendere subsequently withdrawn to any or all charges in an indictment or information, the defendant shall be deemed indicted with respect to all charges therein contained within the meaning of section 3161, on the day the order permitting withdrawal of the plea becomes final.
The relevant portion of § 3161, 18 U.S.C. § 3161(c), provided, prior to the 1979 amendments, as follows:
The arraignment of a defendant charged in an information or indictment with the commission of an offense shall be held within ten days from the filing date (and making public) of the information or indictment, or from the date a defendant has been ordered held to answer and has appeared before a judicial officer of the court in which such charge is pending whichever date last occurs. Thereafter, where a plea of not guilty is entered, the trial of the defendant shall commence within sixty days from arraignment on the information or indictment at such place, within the district, as fixed by the appropriate judicial officer.
The 1979 amendments eliminated the bifurcated time limit of ten and sixty days, imposing instead a single, seventy-day requirement that runs from the later of the filing or appearance date to the trial date. See 18 U.S.C.A. § 3161(c)(1) (Supp.1980).
. Under the pre-amendment version of the Act, the sanctions provisions of § 3162 were to become effective and apply to cases instituted on or after July 1, 1979. 18 U.S.C. § 3163(c) (1976). The August 2, 1979 amendments moved the effective date of the sanctions back to July 1, 1980. See 18 U.S.C.A. § 3163(c) (Supp.1980). This left a month between July 1 and August 2, 1979 when the sanctions may have been in force. Assuming they were in force, it is doubtful that they apply to Carreon’s case because it does not appear that the case was commenced within the critical month. See id.; see also 18 U.S.C. § 3163(c) (1976).
Carreon has not argued that, assuming the inapplicability of § 3162, the United States District Court for the Northern District of Illinois’ Plan for the Prompt Disposition of Criminal Cases that was in effect prior to July 1, 1979 would require dismissal here; indeed, neither of the parties have dealt at all with the district court’s interim plan. It would appear, however, that that document would control this case insofar as sanctions are involved. See e.g., United States v. Walters, 591 F.2d 1195, 1201 (5th Cir. 1979). Under the Northern District’s current plan, which became effective on July 1, 1979, there is no requirement that a case be dismissed in circumstances that would not require dismissal under 18 U.S.C. § 3162. United States District Court for the Northern District of Illinois, Plan for the Prompt Disposition of Criminal Cases § 9(c). In light of this, and of the failure of the parties to brief the issue, we see no need to conduct an independent inquiry into whether sanctions provided by the formerly applicable Northern District Plan might affect the result we reach in the case at bar.
We note also that the pre-amendment versions of § 3161(e) and § 3162(a) do not indicate that § 3162 sanctions were available for violations of § 3161(e). The amendments to § 3161(e) state that § 3162 sanctions do apply to that section, see 18 U.S.C.A. § 3161(e) (Supp.1980), although no corresponding amendment to § 3162(a)(2) was made. Given all this, it is doubtful that the Act provides any sanctions that are applicable to this case. We will nevertheless assume the applicability of § 3162 for purposes of our decision.
. As the government points out, the difficulty with applying § 3161(e) to the case at bar is that that subsection deals with defendants who are “tried again,” see note 2 supra, whereas Carreon was first convicted on his guilty plea, and was therefore never “tried” a first time. Applying § 3161(i) & (c) to the facts at bar is equally difficult, however; as the trial court noted, it is unclear what date should be considered the “filing date” that triggers the running of the ten-day period under § 3161(c), see note 4 supra. The filing date could be argued to be June 15, 1979, when Chief Judge Parsons ordered that the government be permitted to reopen the criminal case; May 30, 1979, when Judge Bua vacated Carreon’s prior conviction; December 5, 1978, when our mandate reached the district court; or even July 28, 1978, when the mandate in Carreon I should have issued. Any of the critical dates prior to and including May 30, 1979 might be thought, under § 3161(i), see note 4 supra, “the day the order permitting withdrawal of the plea [became] final.”
. The district court found that “the date the action occasioning the retrial [became] final” under § 3161(e) was May 30, 1979, when Judge Bua enforced this Court’s mandate and vacated the prior conviction and sentence. The court further found that Carreon’s motion to dismiss the indictment on July 23, 1979 tolled the running of § 3161(e)’s sixty-day time limit. Cf. 18 U.S.C. § 3161(h)(1)(E) & (G) (1976) (delay due to hearings on pretrial motions and proceedings concerning defendant taken under advisement are excludable time). Accordingly, the court found that the sixty-day limit was not transgressed.
Carreon challenges this reasoning, contending that May 30, 1979 was not the date the action occasioning retrial became final; Carreon does not indicate, however, what earlier date he thinks should have been chosen as the applicable date. As we state in text, infra, we do not reach the issue of whether § 3161(e) was violated.
. The district court noted that § 3161(i) may have been violated because, whatever relevant date is considered to be the filing date for § 3161(c) purposes, Carreon was not arraigned within ten days of the filing date. Carreon was, however, scheduled for arraignment on June 26, 1979, eleven days after the case was reopened on June 15. Carreon’s unavailability, which is excludable time, 18 U.S.C. § 3161(h)(3)(A) (1976), caused the arraignment to be moved back to July 9, 1979. As the trial court noted, arraignment would have been scheduled at least a day earlier had the court suspected that the § 3161(c) time limit began to run on June 15.
. Carreon argues that the record does not disclose whether the government’s failure to move to expedite the case was due to intentional procrastination or merely to negligence. The record provides no basis for a conclusion that the government may have intentionally delayed the proceedings, however, and the trial court so found, noting that, “No suggestion has been made that the Government’s inaction was due to anything more than negligence.” Carreon presented no witnesses at trial, and there is no indication that he could have been tactically disadvantaged in any way by the delay. The government, on the other hand, was faced with the prospect of calling witnesses to testify in 1979 concerning events that took place in 1974. It is unlikely that the government attempted to delay the trial while the prosecution witnesses’ memories continued to fade. No further investigation of the case by the government was required or undertaken, and Carreon was at liberty during the entire period of delay. Moreover, the government manifested its good faith during the course of the proceedings by prompting Carreon’s counsel to move for vacation of the conviction and sentence at the hearing held by Judge Bua on May 30, 1979. It is Carreon’s burden to demonstrate a denial of his speedy trial rights, 18 U.S.C. § 3162(a)(2) (1976), and he has failed to present any evidence that the delay was due to anything other than clerical oversight on the part of the courts and negligence on the part of both parties.
. Carreon has argued that, because Judge Kirkland had removed Carreon’s case from his calendar on September 20, 1978, and because the case was not, therefore, pending before any district judge when the district court received our mandate in Carreon J, Carreon was precluded from moving in the district court to expedite the proceedings. We doubt that this is the case; Carreon could have filed a motion either in this Court or in Judge Kirkland’s court to determine the status of his case. We would view Carreon’s allegation that he was precluded from expediting the case more seriously if he had tried to do so and failed.
. Nor does the record disclose any impairment of Carreon’s defense. Carreon called no witnesses at trial and apparently desired to call none. Informant Maria Hernandez, who was a key witness as to Carreon’s entrapment defense, was available, but Carreon chose not to call her to testify. The government’s witnesses at trial experienced only slight lapses of memory, none of which were in any was prejudicial to Carreon. We can find no evidence of prejudice on this record.
. Although this issue was not raised, we have examined Carreon’s testimony to determine if a due process issue plainly is present on the record. Were the facts as Carreon testified, a colorable claim under the due process clause might be present. But cf. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Carreon’s version of the events was disputed by the government on most significant points, however, and, as with the entrapment issue discussed in text, infra, the trial court was clearly entitled to discredit Carreon’s story. Under these circumstances, even if we were to interpret Carreon’s entrapment argument as presenting also a due process issue, that issue would have to be resolved in favor of the government.
. It would serve no useful purpose to set out some or all of the numerous instances of conflict between the agents’ testimony and Carreon’s prior testimony. It suffices to say that Carreon testified to a series of events in which he often protested that he did not wish to go through with the sales, and that the agents testified to a series of events in which Carreon demonstrated willingness and readiness to deal in heroin.
. Carreon has argued on appeal that predisposition must be proved by evidence of the defendant’s conduct prior to commission of the crime in question; alternatively, Carreon has urged that conduct prior to the criminal act is more probative of predisposition than subsequent conduct, and that there was insufficient prior conduct evidence in this case. As to the former contention, Carreon cites no authority for such a rule, and we know of none. While it is true that predisposition turns on a defendant’s mental state prior to commission of the crime, that mental state may be proved by relevant and admissible evidence concerning the defendant’s actions either before or after commission of the crime. See United States v. Townsend, 555 F.2d 152, 157 n. 8 (7th Cir.), cert. denied, 434 U.S. 897 (1977). As to Carreon’s alternative contention, we do not disagree with the general proposition that conduct prior to commission of the crime may often provide stronger evidence of predisposition than conduct subsequent to the crime. We do disagree, however, with Carreon’s contention that the absence of evidence of predisposition in the form of evidence of Carreon’s conduct prior to the first substantive offense charged renders the government’s case insufficient to establish predisposition beyond a reasonable doubt. Having read Carreon’s prior testimony, and having compared it to that of the agents, we believe the trial court could properly have accorded Carreon’s tale of entrapment little or no weight. Given Carreon’s later actions, some of which are listed in text, infra, the trial court could properly have found that Carreon at some point acquired the desire to sell heroin and knowledge of how to do so. It would also have been reasonable, on the record, to conclude that this desire and knowledge on Carreon’s part did not come into existence during the course of the events at issue, but rather had existed from the outset of the series of transactions charged. Finally, the September 8 heroin transfer, which formed the basis for Count II, the first substantive count of the indictment, involved the transfer of a free sample of heroin; this transfer could reasonably have been viewed by the court as an action intended by Carreon to promote future sales, and thus as indicative of Carreon’s predisposition. Given all this, and given also the limited scope of review in this Court of findings of fact in the trial court, we conclude that the government’s case on the entrapment issue was not legally insufficient despite the absence of predisposition evidence in the form of evidence of Carreon’s conduct prior to the first substantive count charged.
. Carreon’s reliance on United States v. Freije, 282 F.Supp. 997, 999 n.1 (D.N.H.1968), aff'd after trial on other grounds, 408 F.2d 100 (1st Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 129, 24 L.Ed.2d 111 (1969), is misplaced. In that case dismissal of the counts occurred after the jury had been sworn and jeopardy had attached.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number.
Answer: |
songer_respond1_3_3 | F | 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 "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
Marie Tipton FAIDLEY, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant-Appellee.
No. 80-1296.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 15, 1981.
Decided Aug. 5, 1981.
William E. Benjamin, Adams County Legal Services, Commerce City, Colo., for plaintiff-appellant.
Beverly R. Buck, Asst. U. S. Atty., D. Colorado, Denver, Colo. (Joseph Dolan, U. S. Atty., and Roland J. Brumbaugh, Asst. U. S. Atty., Denver, Colo., on brief), for defendant-appellee.
Before DOYLE and McKAY, Circuit Judges, and O’CONNOR, District Judge.
Of the United States District Court for the District of Kansas, sitting by designation.
McKAY, Circuit Judge.
When the Secretary of Health, Education, and Welfare (now Health and Human Services) determines the eligibility for benefits under the Supplemental Security Income (SSI) Program of an individual married to a person not eligible for SSI benefits, 42 U.S.C. § 1382c(f)(l) requires the Secretary to deem that individual’s income and resources to include any income and resources of the ineligible spouse, “except to the extent determined by the Secretary to be inequitable under the circumstances.” Prior to February 1978, appellant was an unmarried person who had been receiving approximately $178 per month in SSI benefits as a disabled person. In February 1978, she reported to the Social Security Administration, which administers the SSI program under the direction of the Secretary, that she had married an ineligible person whose sole income was approximately $295 per month from retirement benefits under Title II of the Social Security Act. Because her spouse’s includable income was $5.80 above the amount allowed by the Secretary’s regulations, appellant was terminated from all benefits in June 1978. After exhausting her administrative remedies, appellant brought an action for judicial review of the Secretary’s decision in the district court. The court affirmed the Secretary’s termination of appellant’s benefits.
Appellant argues that the Secretary has breached her statutory duty to determine whether, “under [appellant’s] circumstances,” deeming appellant’s income to include so much of her ineligible husband’s income as disqualifies her from SSI benefits is “inequitable.” We find, however, that appellant has not shown that the Secretary has violated any statutory duty. Section 1382c(f)(l) does impose on the Secretary a duty to determine under what circumstances deeming ineligible spouse income to be eligible spouse income is inequitable. Accordingly, the Secretary has promulgated regulations providing for numerous exclusions from the generally applicable deeming requirement of § 1382c(f)(l), such as exclusions of amounts used (1) to support ineligible children living in the same household, (2) to fulfill an approved plan for achieving self-support, or (3) to comply with the terms of court-ordered support. 20 C.F.R. § 416.-1185. Appellant concedes in her brief that in determining whether appellant was entitled to receive SSI benefits after her marriage, the Secretary included in her calculation an exclusion for unearned income of $20.00. Appellant’s Brief at 5-6. Appellant’s argument is that the Secretary must be required to consider the particular equities of appellant’s circumstances and to determine whether those equities entitle appellant to some further exclusion from the deeming provision beyond the generalized exclusions of § 416.1185. We hold, however, that the Secretary acted within her discretion in choosing not to engage in case-by-case adjudications of inequitable circumstances and not to include among the regulatory exclusions each and every equitable particular of persons in precisely appellant’s position.
We have previously held that the language “except to the extent determined by the Secretary to be inequitable under the circumstances” does not require the Secretary to engage in case-by-case determinations. Hammond v. Secretary of Health, Education and Welfare, 646 F.2d 455 (10th Cir. 1981) (construing this clause in § 1382c(f)(2), in which the language is identical to that in the equities clause of § 1382c(f)(l)). As we indicated in Hammond, we also follow the First Circuit’s ruling that in defining the equitable exceptions, the Secretary need not expressly rule on every conceivable or rational category or circumstance, but may rely upon generalized rules that fall within the scope of his discretion to effectuate lawful congressional purposes. See Kollett v. Harris, 619 F.2d 134 (1st Cir. 1980). In this case, the Secretary has set forth detailed regulations which are rationally related to the purposes and concerns of Congress in enacting § 1382c(f)(l), and which, as Congress intended, avoid those difficulties of individual determinations that outweigh the marginal increments in the precise effectuation of congressional concerns which they might be expected to produce. See generally Weinberger v. Salfi, 422 U.S. 749, 785, 95 S.Ct. 2457, 2476, 45 L.Ed.2d 522 (1975).
The Secretary’s decision not to make an additional exception for those whose circumstances are like appellant’s, therefore, is not an abuse of the Secretary’s broad discretion. Even though appellant’s circumstances are very appealing to the equitable conscience, we could find that the Secretary has abused her discretion under these circumstances only by requiring her to make case-by-case adjudications in every § 1382c(f)(l) case or to define the exclusionary categories narrowly enough to amount to essentially the same thing. We have already declined in the Hammond case to impose such requirements.
AFFIRMED.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer: |
songer_casetyp2_geniss | G | 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.
There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - other bankruptcy. Your task is to determine the second issue in the case. 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".
MOSS et al. v. SHERBURNE et al.
(Circuit Court of Appeals, First Circuit.
March 3, 1926.
On Petition for Rehearing April 6, 1926.)
No. 1855.
1. Exceptions, bill of <S=4I (1)— Bill of exception filed within extension of time granted therefor held timely (District Court rule 19).
Bill of exceptions, filed within extension of time granted therefor when motion for new trial was overruled, held, under District Court rule 19, timely filed.
2. Sales <@=>89 — Whether buyer, after seller’s attempted cancellation of contract, waived rights thereunder by making new contract for part of same goods, held for jury.
Whether buyer of sugar, after seller’s attempted cancellation of contract by making new contract for part of same sugar, waived or relinquished rights under first contract, held, under conflicting evidence as to whether he was told that he was purchasing same sugar, question for jury.
3. Appeal and error <@=>1050(1) — Error, if any, * in admitting evidence of market value at place other than place of delivery, in action for breach of contract to sell sugar, held not prejudicial.
Where jury, in calculating damages for breach of contract to sell sugar f. o. b. Buenos Aires, did not consider evidence of market value in New York, but clearly considered price fixed in a second contract c. i. f. New York, in determining market value in Buenos Aires, held, error, if any, in admitting proof of” market value in New York, was not prejudicial..
4. Sales <@=>418(2) — Measure of damages for seller’s breach of contract is difference between contract price and market value at time of breach and place of delivery.
Measure of damages for breach, of contract by seller is difference between contract price and market value of goods at time of breach and place of delivery, or, if there is no market value at such place, then at nearest available market.
5. Sales <@=>416(2) — In action for breach of contract to sell sugar, evidence of contract price under second contract between same parties for same sugar held admissible as evidence of market, value.
In action for breach of contract to sell sugar f. o. b. Buenos Aires, evidence of contract price of same sugar under a second contract c. i. f. New York between same parties held properly admitted as evidence of market value of sugar described in first contract.
6. Appeal and error <@=l 151(1).
Clerical error in computing damages for breach of contract, if possible, may be corrected by remittitur, without new trial.
On Petition for Rehearing.
7. Appeal and error <@=>835(2).
Defense, first asserted on petition for rehearing on second appeal of case, held not available.
In. Error to tlie District Court of the United States for the District of Massachusetts; James M. Morton, Judge.
Action by John H. Sherburne and others, trustees, against Jacinto Moss and others. Judgment for plaintiffs, and defendants bring error.
Affirmed, on condition remittitur be. filed; otherwise, .reversed, and new trial granted.
See, also, 295 E. 769.
Gaston, Snow, Saltonstall & Hunt, of Boston, Mass. (Dunbar E. Carpenter and Thomas Hunt, both of Boston, -Mass., of counsel), for plaintiffs in error.
Howard Stockton, Jr., and John H. Sherburne, both of Boston, Mass. (Sherburne, Powers & Needham and Warren, Garfield, Whiteside & Lamson, all of Boston, Mass., on the brief), for defendants in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
JOHNSON, Circuit Judge.
This is a writ of error to the United States District Court for the District of Massachusetts to reverse a judgment entered in an action of contract brought by the receivers in bankruptcy of E. R. Sherburne Company, a Massachusetts corporation, to whose rights the present defendants in error have succeeded against Moss & Co., plaintiffs in error, co-partners, with a-usual place of business at Buenos Aires in the Argentine Republic, to recover damages for breach of a contract to deliver to the Sherburne Company 23,000 tons of sugar; Eor convenience the plaintiffs in error will be referred to as “Moss” .and the defendants in error as “Sherburne.”
A written contract was entered into by Sherburne with Moss on April 14, 1920, for the purchase of 23,000 tons of sugar at $332 per ton f. o. b. Buenos Aires. This contract was as follows:
“Minford, Lueder & Co., 106 Wall Street, New York.
“Contract No. 2033. April 14, 1920.
“Messrs. Moss & Co. Buenos Aires, Argentine — Gentlemen: We beg to confirm the purchase on this date from your good selves through your New York representatives, Messrs. Aboab Hermanos of Buenos Aires and New York, as sellers, for account of the E. R. Sherburne Company, Boston, as buyers, of about twenty-three thousand (23,000) long tons (of 2,240 pounds each) pile, pure, white granulated sugar, polarizing 99° plus and equal in quality to United States standard granulated sugar.
“At a price of three hundred thirty-two dollars ($332) per long ton of 2,240 pounds, free on board, Buenos Aires.
“Sugar to be shipped in vessels to be provided by buyers, and sellers to have sugars ready for delivery at steamer’s call at Buenos Aires during April and May, 1920, and June, 1920.
“Sugars to be invoiced on net shipping weights.
“Payment: Buyers are to open by cable a confirmed, irrevocable credit in favor of Messrs. Moss & Company, Buenos Aires, to be availed of by sight against delivery of complete set of shipping documents, including certificate of analysis and Argentine export license, not including prepaid freight.
“Buyers are to receive a guaranty of shipment at the point of embarkation and of performance of this contract by the seller, which guaranty is to be acceptable to buyer’s bank and against satisfactory evidence of analysis as to the quality of the sugar by the American Chamber of Commerce of Buenos Aires and export license of the Argentine government.
“Marine insurance from shore to shore, including craft risk, loading and discharging to be for buyer’s account.
“Sellers to notify buyers by cable immediately the vessels designated to take the sugar arrive at loading port for purposes of insurance.
“Yours very truly,
“Minford, Lueder & Co., Buyers. “Sellers: J. Moss & Cie,
“By Aboab Herms.
“J. J. Bela.
“Accepted: E. R. Sherburne Co.
“E. R. Sherburne, Brokers.”
This case came on for trial in the District Court before a jury, which made special findings in favor of the plaintiffs in answer to questions submitted by the court, and also, on March 10, 1922, by its direction, returned the following alternative verdict:
“The jury find for the plaintiffs and assess damages in the sum of one million three hundred sixty-one thousand seven hundred six and 14/ioo dollars.
“But if, as a matter of law, the plaintiffs are not entitled to a verdict, then the jury find for the defendants and consent that this verdict may be entered on order of the United States District Court for the District of Massachusetts, or of the United States Circuit Court of Appeals for the First Circuit or of the Supreme Court of the United States, with same effect as if returned by them.”
On March 11, 1922, Moss filed a motion for a new trial, and also to set aside the verdict for the plaintiffs, and to enter one for the defendants.
The judge of the District Court, on August 22, 1922, set aside the verdict for the plaintiffs and entered a verdict for the defendants, upon the ground that the plaintiffs had failed to establish either authority of Aboab Hermanos to act as the agent of the defendants or the ratification of the contract by them.
Upon a writ of error by plaintiffs this court held that the jury was warranted in finding that the contract was either authorized or ratified, and an order was entered vacating the judgment of the District Court, setting aside the verdict for the defendants, and remanding the ease to the District Court for further proceedings not inconsistent with the opinion rendered. See Sherburne v. Moss, 295 F. 769.
After receipt of the mandate of this court the District Court, on July 22, 1924, ordered the verdict for Moss to be set aside, and judgment entered for Sherburne on the verdict of the jury.
The case has now been brought here by Moss upon a writ of error. We are met at the outset by a motion of Sherburne to strike the bill of exceptions from the record, on the ground that it was not filed within the time allowed by law or the .rules of the District Court.
When, on July 22, 1924, judgment was entered for Sherburne on the verdict of the jury, the motion of Moss for a new trial was then pending. By order of the District Court the time for filing a bill of exceptions by Moss was extended to November 1,1924, and this bill of exceptions was filed October 27, 1924.
The motion for a new trial which had been filed by Moss was not disposed of until judgment upon the verdict was entered for Sherburne; and as, under rule 19 of the District Court, which provides that a bill of exceptions must be filed within 20 days after the verdict or the denial -of a motion for a new trial, “unless the court or judge shall otherwise order,” and the time for filing the same had- been properly extended to November 1, 1924, the bill of exceptions in this ease was seasonably filed. Slip Scarf Co. v. William Filene’s Sons’ Co. (C. C. A.) 289 F. 641.
When the case was formerly before this court upon Sherburne’s exceptions, we held that the only questions presented were whether there was any evidence from which the jury might reasonably find that Moss either authorized or ratified the contract of April 14th, and only the evidence pertaining to the questions of authorization and ratification was before us.
The following positions are now taken by Moss as grounds for reversal:
First. That, by making a contract on April 26, 1920, for the purchase of the same sugar as was the subject of the contract of April 14, 1920, Sherburne released the defendants from liability under the contract of April 14, 1920, and that the trial court erred in refusing to rule as requested by the defendants that, as a matter of law, such was the case.
Second. That the trial court, over the objections and exceptions of the defendants, permitted improper evidence to he introduced, from which the jury were allowed to compute the damages, and failed to rule as the defendants requested, and improperly charged the jury as to damages.
The contract of April 14, 1920, was canceled on or about April 17, 1920, by a cable from Aboab of Buenos Aires to Aboab in New York, on the ground that credit had not arrived on April 16th. On April 26, 1920, another contract was made between the same parties for the purchase of 20,500 tons of what the parties have stipulated was a part of the sugar included in the former contract, at the price of $410 per long ton of 2,240 pounds, e. i. f. New York, and with the provisions that the export duty, if any, was to be for buyer’s account, and that, if the export license was not granted before the 10th of May following, the contract should be null and void. No export license was obtained, and' no sugar was shipped under this contract.
At the close of the evidence Moss made the following requests for rulings:
“A subsequent contract covering the same subject-matter and made by the same parties as an earlier agreement, but containing terms inconsistent with the former contract, so that the two cannot stand together, rescinds, supersedes, and is substituted for the earlier contract, and becomes the only agreement of the parties on the subject.
“If and when the parties to the contract of April 14, 1920, entered into a new contract (that of April 26, 1920), covering the the same subject-matter, the new contract necessarily superseded, -abrogated, and took the place of the first as a matter of law, and became the measure of the obligations of both parties.”
The court declined to give these instructions, but gave the following:
“On the 26th another arrangement was made, or a contract even, between Moss & Co. and the Sherburne Company, with reference to 20,500 tons. The defendant says that the contract related to the remainder of the same sugar that had formed the subjeet-matter of the 23,000-ton contract of two weeks previous, and that, when the parties made that contract — the same parties — it was understood that all rights under the contract of April 14th were waived and abandoned by the plaintiff or by the Sherburne Company. The plaintiffs and the Sherburne Company say that was not so at all; that nothing was said about their giving up their rights under the April 14th contract; that their attitude was they were insisting upon those rights, and made this purchase of sugar as a purely independent transaction. Well, you are to decide which the understanding of the agreement was. To put it exactly: Are you satisfied by a fair preponderance of the testimony, at the time when Sherburne & Co. and Moss & Co. entered into the contract of April 26th, it was understood and agreed between those parties that the Sherburne Company relinquished and abandoned and waived any and all rights which it had under the contract of April 14th? Are you satisfied that is so? If you are, you will answer that question ‘Yes.’ If you are not satisfied, you will answer it ‘No.’ ”
The jury, by a special finding, answered the question in the negative.
If it had been shown hy uneontradicted testimony that Sherburne knew at the time of the second contract that its subjeet-matter was the same lot of sugar as that covered by the first, and the circumstances were such that no other conclusion could be drawn than that a cancellation or waiver of rights under the first contract was intended, the requested instruction would have been proper. But the testimony on the part of Moss and Sherburne as to whether the latter was told that it was the same lot of sugar was conflicting, and, as there was nothing to distinguish the lot of pile sugar embraced in the second contract from any other lot, it was for the jury to say whether Sherburne had waived any of his company’s rights under the first contract.
The jury have passed upon this by their special finding under the instructions that were given, and which, although in some respects inadequate, placed the issue of waiver squarely before them. We cannot hold as a matter of law that these instructions, under the conflicting testimony which was given, were not right, or that there was error in refusing to give the requested instructions.
Over the objection of Moss testimony was introduced as to the market value in New York of white granulated sugar during the months of April and May, 1920. It is evident, however, that Moss was not prejudiced by this, because the jury, in arriving at their verdict, did not consider it.
The well-understood rule for the assessment of damages for breach of a contract for the sale of goods, in both federal and state courts, is that, if the contract is broken by the seller, the buyer may recover as damages the difference between the contract price and the market value of the goods at the time of the breach and at the place of delivery, or, if there is no market value at such place, then at the nearest available market.
In this case, under objection of the defendant, to which exception has been taken, the jury were allowed to take into consideration as evidence of the market value of Argentine pile sugar at Buenos Aires at the time of the breach of the contract the price of the same fixed in the second contract, which was $410 per long ton of 2,240 pounds or 18.30 cents per pound e. i. f. New York. The price of sugar per pound under the first contract was 14.82 cents per pound f. o. b. Buenos Aires. To this amount was added the cost of freight, handling, and the import duty into the United States, making in all the sum of 17.43 cents per pound for this sugar unloaded in New York. By adding to 18.30 cents, the cost per pound under the second contract e. i. f. New York, the import duty of 1.36 cents per pound and the cost of handling, .25 cents per pound, the price of 19.91 cents per pound was obtained as the cost of this sugar in New York. The cost of insurance, which, according to the testimony, was 3 cents per 100 pounds, was not added to the contract price in either ease.
The amount thus obtained for the cost of sugar in New York under the first contract, deducted from the price under the second contract, left a difference of 2.48 cents per pound, which it is evident was the basis upon which damages were calculated by the jury. It was not, however, according to the undisputed evidence, the difference between the prices under the two contracts. The import duty may be discarded in the consideration of prices under them, as in each it was to be paid by the buyer.
If to the price under the first contract, 14.82 cents f. o. b. Buenos'Aires, freight, 1 cent per pound, and insurance, 3/ioo cents per pound, are added, the price, New York, would be 15.85 cents per pound, and this, deducted from 18.30 cents per pound, the price under the second contract, which includes freight' and insurance, but not handling, would leave a difference of 2.45 cents per pound. The same result would be arrived at by deducting from 18.30 cents per pound, the price e. i. f. New York under the second contract, freight and insurance, making the cost f. o. b. Buenos Aires 17.27 cents per pound, or 2.45 cents per pound more than the price under the first contract. As 23,000 long tons are 51,520,000 pounds, this error would reduce the verdict by $15,436.
There was no error in admitting the price in the second contract as evidence of the market value of the sugar described under the first contract at Buenos Aires on the date of the breach of the contract, but there was clearly a clerical error in the computation of damages. To avoid the expense of a new trial, this may be corrected by a remittitur. Hansen v. Boyd, 16 S. Ct. 571,161 U. S. 397, 411, 40 L. Ed. 746; Van Boskerck v. Torbert, 184 F. 419, 422, 107 C. C. A. 383, Ann. Cas. 1916E, 171; Straus et al. v. Victor Talking Machine Co. et al. (C. C. A.) 297 F. 791, 807.
Ordered, if the defendants in error, within 15 days after this opinion is handed down, file a remittitur of $15,436, with interest for 400 days, the time for which interest was allowed by the jury, in the office of the clerk of the District Court, and a certified copy in the office of the clerk of this court, the judgment, less the amount so remitted, will be affirmed, with costs in this court to the plaintiffs in error. If this is not done, the verdict will be vacated, judgment reversed, and a new trial granted, with costs to the plaintiffs in error.
On Petition for Rehearing.
The plaintiffs in error have petitioned for a rehearing since our opinion was handed down in this case.
In addition to the defenses relied upon at the trial of this action, and which were argued before us, the petitioner now contends that the contract of April 14,1920, was a conditional one; that under it Moss did not guarantee that an export license could be obtained from the Argentine government; and that the contract, if one were made, was conditioned upon his being able to obtain this.
The case has been before this court twice, and neither time was this position taken by Moss. The only defenses relied upon the second time the ease was argued- before us were:
First. That by making the contract of April 26, 1920, for the purchase of the same sugar as was the subject of the contract of April 14, 1920, Sherburne released the defendants from liability under the contract.of April'14, 1920, and that the trial court erred in refusing to rule as requested by the defendants that such was the ease.
Second. That the trial court, over the objections and exceptions of the defendants, permitted improper evidence to be introduced, from which the jury were allowed to compute the damages, and failed to rule as the defendants requested, and improperly charged the jury as to damages.
’In our opinion we discussed these defenses, and find nothing in the petition which causes us to reach a different conclusion from that which we then reached.
The petition is denied.
Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - other bankruptcy?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_method | A | 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.
BIG Y SUPERMARKETS, INC., Plaintiff, Appellant, v. Frank W. McCULLOCH et al., Defendants, Appellees.
No. 6895.
United States Court of Appeals First Circuit.
June 12, 1967.
Jay S. Siegel, Hartford, Conn., for appellant.
Michael N. Sohn, Washington, D. C., Attorney, with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Gary Green, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Attorney, were on brief, for appellees.
Before ALDRICH, Chief Judge, Mc~ ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
The judgment of the district court is affirmed on the opinion below. See also Greensboro Hosiery Mills, Inc. v. Johnston, 4 Cir., 1967, 377 F.2d 28 (5/12/67).
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer: |
songer_treat | B | 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.
John VON UTTER, Jr., Petitioner, Appellee, v. Donald P. TULLOCH, Respondent, Appellant.
No. 7471.
United States Court of Appeals, First Circuit.
Heard March 2, 1970.
Decided May 14, 1970.
Lawrence P. Cohen, Asst. Atty. Gen,, with whom Robert H. Quinn, Atty. Gen., John Wall, Asst. Atty. Gen., Chief, Criminal Div., Edmund Dinis, Dist; Atty., and Peter B. Gay, Asst. Dist. Atty., were on brief, for appellant.
Mitchell Benjoya, Boston, Mass., with whom Kevin M. Keating and Crane, Inker & Oteri, Boston, Mass., were on brief, for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
Petitioner Von Utter was convicted in Massachusetts Superior Court for possession of narcotics in violation of the narcotics drug laws. The narcotics were seized in a search of his car pursuant to a search warrant issued to a Province-town police officer. Petitioner’s motion to suppress the evidence on the ground that the application for the warrant did not allege facts constituting probable cause was denied and his conviction was subsequently upheld by the Supreme Judicial Court. Commonwealth v. Von Utter, 1968 Mass.Adv.Sh. 559, 246 N.E.2d 806. Thereafter, Von Utter filed the instant petition for a writ of habeas corpus. In the district court, the Commonwealth, in addition to arguing the validity of the search warrant, attempted for the first time to support the seizure on the ground that it was a search incident to a lawful arrest. Although it did not ask for a decision on the merits, it did seek a remand of the case to the state court for an evidentiary hearing. The Commonwealth appeals from the order of the district court discharging the petitioner from custody.
I
The search warrant was accompanied by an affidavit and a memorandum setting forth the basis for the affiant’s belief that a search of the petitioner’s car would reveal quantities of LSD and marijuana. The memorandum, to the extent relevant, appears in the margin.
In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court elaborated on the test to be applied in judging the validity of search warrants where the information set out in the affidavit is based in part on hearsay. The Court began by reaffirming the two-pronged test announced in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), that “the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was ‘credible’ or his information ‘reliable’.” The Court went on to hold, however, that where the affidavit falls short of this standard, the magistrate can go beyond the informer’s tip and consider whether it and any other corroboratory information in the affidavit are sufficiently detailed “so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s reputation.” Spinelli, supra, 393 U.S. at 416, 89 S.Ct. at 589. The Court cautioned that Aguilar’s standards must nonetheless inform the magistrate’s decision. Thus, in order to find probable cause, the magistrate must be satisfied that the information disclosed by the informant, coupled with any other information contained in the affidavit, is at least as trustworthy as the informer’s tip would need to be to stand alone under Aguilar.
Following the format prescribed in Spinelli, we begin by assessing the weight to be attributed to the informer’s tip apart from the rest of the affidavit. It is apparent that the tip is deficient when measured by Aguilar’s standards. On the issue of the informer's reliability the affiant did not represent that he had had any prior contact with the informer or that the latter had provided the authorities with accurate information in the past. Rather, he attested that the informant was an admitted user, had a user’s knowledge of narcotics, and was known by the affiant personally to associate with convicted users. This description could fit any addict picked up by the police for a narcotics violation. Narcotics informants do not enjoy a reputation for veracity. Jaben v. United States, 381 U.S. 214, 224, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); Jones v. United States, 105 U.S.App.D.C. 626, 266 F.2d 924, 928 (D.C. Cir. 1959). Lacking corroboration, information from so untested a source is unacceptable. See Wong Sun v. United States, 371 U.S. 471, 480, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963); United States v. Elgisser, 334 F.2d 103, 110 (2d Cir.), cert. denied, Gladstein v. United States, 379 U.S. 879, 85 S.Ct. 148, 13 L.Ed.2d 86 (1964); United States v. Brennan, 251 F.Supp. 99, 103-104 (N.D.Ohio 1966).
Nor does the tip satisfy Aguilar’s other test: there is no indication as to how the informant came by this particular information. The fact that the informant is known to associate with convicted users is insufficient to establish how he knew that one John Von Utter would have narcotics in his possession at a certain time and place. Cf. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). To paraphrase Spinelli, “We are not told how the * * * source received his information — it is not alleged that the informant personally observed [Von Utter] at work or that he had ever [bought narcotics from] him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable.” See Saville v. O’Brien, 420 F.2d 347 (1st Cir. 1969), cert, denied 398 U.S.. 938, 90 S.Ct. 1840, 26 L.Ed.2d 270.
We must, therefore, deal with the question of whether the facts set out in the informant’s tip augmented by information supplied by the police could lead a magistrate reasonably to believe that the information was reliable, was not derived from a casual rumor, or was not based merely on Von Utter’s general reputation. Spinelli, supra, 393 U.S. at 416, 89 S.Ct. 584. The detailed facts supplied by the informer are that Von Utter would arrive in Provincetown between March 8-10, driving a white VW 2 door sedan with Connecticut registration JJVU, and that the car would contain marijuana and LSD.
These facts bear a superficial resemblance to those in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L. Ed.2d 327 (1959), in which the Court upheld a search incident to arrest on information supplied by an informant that Draper had gone to Chicago the previous day and that he would return by train with three ounces of heroin on one of two specified mornings. In addition, however, he described in meticulous detail the clothes Draper would be wearing, his habitual tendency to walk fast and the fact that he would be carrying a tan bag. As stated by the Court in Spinelli, supra, 393 U.S. at 417, 89 S.Ct. at 589, “a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” We are of the opinion that the detail set forth in the instant informer’s tip is insufficient to permit a magistrate to infer that the informant spoke from personal observation or other particular knowledge of the criminal activity. There are obvious qualitative and quantitative differences between this information and that furnished in Draper. Most telling is the fact that although the informant reported that Von Utter would be in Province-town between March 8-10, the application for the warrant was not made until March 14. We think the instant case bears a stronger resemblance to Spinelli itself, where the informer supplied information that the defendant was using two telephones, described by number, and that these phones were being used to conduct illegal gambling operations. The Court held that “this meagre report could easily have been obtained from an offhand remark heard at a neighborhood bar.”
Nor is the deficiency remedied by any other information contained in the affidavit. The sum total of that intelligence is that a “reliable” informant had given Detective Silva the names of persons attending parties on stated dates which conformed with “the same type of information” received by the affiant’s informant ; that Von Utter was known by the Connecticut State Police to consort with convicted narcotic users; and that Von Utter's “reputation” and the description of his car had been confirmed by the state police. The information supplied by Detective Silva’s informant is too vague to be of any value, and the mere assertion that an individual is “known” to be a criminal or to associate with criminals has been held inadequate to supply additional weight to otherwise insufficient allegations. Spinelli, supra, at 419, 89 S.Ct. 584. Notably, the affiant does not even disclose whether or not the car had arrived as predicted. The only conclusion that can be drawn is that this document falls short of the constitutional standard.
II
In view of the foregoing, the Commonwealth’s attempt to support the seizure as a search incident to a lawful arrest does not require extended discussion. According to the Commonwealth the police officers approached Von Utter as he was coming out of a drug store and told him they had a warrant to search his car. He said there would be no need; he would do it himself. Thereupon he reached into the glove compartment, seized some contraband from it and fled on foot. The police gave chase, apprehended him and placed him under arrest. Thereafter they searched the car and found a quantity of narcotics.
On the record this is not a case where an arrest can be upheld on an independent showing of probable cause, even though the warrant turns out to be invalid. See, e.g., United States v. White, 342 F.2d 379, 381 (4th Cir.), cert. denied, 382 U.S. 871, 86 S.Ct. 148, 15 L. Ed.2d 109 (1965); Williams v. United States, 273 F.2d 781, 790 (9th Cir.), cert. denied, 362 U.S. 951, 80 S.Ct. 862, 4 L.Ed.2d 868 (1960). Here the evidence in support of the Commonwealth’s alternative contention, the action of the defendant, was initially tainted by the invalid search warrant. That defect was not remedied by what occurred afterwards. Cf. Wong Sun v. United States, supra.
Affirmed.
. “1. Information received from a confidential informant who is an admitted user and is known by me personally to associate with convicted narcotic users, and the informant admittedly associates with convicted users, who have past convictions for narcotic violations, and who has a user’s knowledge of narcotics.
2. Information received by me from Detective Robert Silva, who has information from a reliable informant as to dates of parties and names of persons in attendance to conform with the same type of information received from my confidential informant.
3. And information received from State Police Connecticut Narcotics Agents, Trooper Hall and Trooper Reynolds that John Joseph Von Utter is known to associate with convicted narcotic users.
4. Information from my confidential informant that John Joseph Von Utter will be operating a white VW 2 door sedan, Connecticut registration JJVU in Provincetown sometime between March 8-10, 1968 and will be containing a quantity of Marijuana, a Narcotic Drug and a quantity of Hallucinogenic Drug known as LSD (lysergic acid diethylamide) .
5. All of the information received by me from my confidential informant has been confirmed by Narcotic Agents of the Massachusetts State Police and Connecticut State Police regarding the reputation of John Joseph Von Utter and the cars, owner and description, color, registration number.”
. In Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), the Court, in sustaining an affidavit based on an informant’s tip, said: “Thus we may assume that Didone had the day before been told, by one who claimed to have bought narcotics there, that petitioner was selling narcotics in the apartment. Had that been all, it might not have been enough; but Didone swore to a basis for accepting the informant’s story. The informant had previously given accurate information. His story was corroborated by other sources of information. And petitioner was known by the police to be a user of narcotics. Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history.”
. Compare the extent of the detail in the informer’s report in United States v. Repetti, 364 F.2d 54, 56 (2d Cir. 1966) : “Appellant was arrested after an informant, who had proved . reliable on twenty-five prior occasions, told an agent of the Federal Bureau of Narcotics that a man named Paul, white, five feet, four inches tall, weighing one hundred ten pounds, thin with a prominent nose, driving a customized black Mercury, bearing New York registration number 9T 4041, would be delivering an ounce of heroin at 135th Street and Fifth Avenue at five o’clock in the afternoon of August 2, 1963. Federal narcotics agents were posted at the place referred to by the informant. At five o’clock appellant drove up in an automobile fitting the informant’s description.”
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
songer_geniss | F | 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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 810, STEEL, METALS, ALLOYS & HARDWARE FABRICATORS & WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent, and Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., Intervenors.
Nos. 574, 575, Dockets 71-1951, 71-2062.
United States Court of Appeals, Second Circuit.
Argued March 24, 1972.
Decided May 11, 1972.
Jack H. Weiner, Washington, D. C. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Washington, D. C., on the brief), for petitioner.
Thomas Canafax, Jr., Washington, D. C. (Shimmel, Hill & Bishop, Washington, D. C., and Henry Brickman, New York City, on the brief), for respondent.
John T. Redmond, New York City (James H. Tully, Jr., Wood, Redmond & Tully, New York City, on the brief), for intervenors.
Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.
HAYS, Circuit Judge:
The National Labor Relations Board filed this application for enforcement of its order directing respondent Local 810 to cease and desist from conducting a secondary boycott in violation of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations. Act, 29 U.S.C. § 158(b) (4) (i) and (ii) (B) (1970). The charging parties, Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., intervened, urging that the application be granted. The Union cross-petitioned to set aside the Board’s order. We deny enforcement of the Board’s order and grant respondent’s cross-petition to set it aside.
I. The Facts
The Trial Examiner’s findings of fact were adopted by the Board and are supported by substantial evidence. These findings establish the following:
A. The Initial Dispute
An employee of Sid Harvey Supply, Inc. was discharged on February 20, 1970, and the Union went on strike after the company refused to reinstate him. The Union began picketing Supply that day, and on March 10 commenced picketing Sid Harvey, Inc. In May and June, members of the Union picketed and distributed handbills in front of stores operated by Sid Harvey Brooklyn Corp., Sid Harvey Nassau, Inc., and Sid Harvey Suffolk, Inc. The picket signs and leaflets, and the verbal exhortations of the pickets, requested the public not to buy Sid Harvey products. The pickets were successful in persuading some of the potential customers of one store operated by Nassau not to patronize that store, and also prevailed on carriers not to make deliveries to Inc. and Brooklyn. On June 11 the Union discontinued the picketing of Inc., Brooklyn, Nassau, and Suffolk after the United States District Court for the Eastern District of New York temporarily enjoined the Union from picketing the four corporations in violation of § 8(b) (4) (i) and (ii) (B).
B. Relationships Among the Sid Harvey Companies
1. Structure and Operations
Supply, the company which the Union struck, and the four companies the Union picketed before the issuance of the temporary injunction, are a part of a complex of interrelated corporations operating on a nationwide basis. The Sid Harvey corporations are engaged in the reconditioning, distribution, and sale of air conditioning and heating equipment to trade users. While the Sid Harvey corporations are not totally interdependent, they constitute what is essentially a vertically integrated operation, or to use the popular term for their relationship to each other, they are engaged in a straight-line operation.
The keystone of the Sid Harvey organization is Inc., located in Valley Stream, Long Island. Inc., and Sid Harvey Midwest, Inc., located in Illinois, are engaged in the business of rebuilding and reconditioning air conditioning and heating equipment and parts for such equipment. Inc. obtains the used equipment that it rebuilds from the sales companies within the Sid Harvey group.
The equipment rebuilt by Inc. is warehoused and then distributed by Supply to the various Sid Harvey sales companies. Supply does not distribute only Inc. goods, but all of Inc.’s goods are distributed by Supply. Supply distributes only to sales companies within the Sid Harvey group.
Although the record is not entirely clear, it appears that there are approximately 20 sales companies in the Sid Harvey group, many of which, like Nassau, Brooklyn, and Suffolk, have corporate names containing the words “Sid Harvey.” These sales companies receive from Inc. via Supply all the rebuilt equipment they sell. The greater part of the new equipment sold by the sales companies is obtained indirectly from the manufacturers through Supply, with the remaining portion obtained directly from manufacturers. Thus, of Nassau’s sales, 40% represents sales of Inc.’s rebuilt equipment, and 60% is of new equipment; 60% of the new equipment sold is obtained through Supply. The corresponding figures for Brooklyn are 20%, 80%, and 85-90%, and for Suffolk are 33%, 67%, and 70%.
2. Control
Stephen Harvey owns 100% of the voting stock of Inc., and is chairman of the board of directors, president, and treasurer. Supply is owned by fourteen Sid Harvey sales companies located in the Northeast. Stephen Harvey has voting control of nine of these sales companies, including Brooklyn and Nassau. Collectively those nine own 73% of the stock of Supply. Stephen Harvey is chairman of the board and an officer of each of these sales companies, and is chairman of the board and treasurer of Supply. Although Stephen Harvey has a commanding position in the interlocking corporate structure of the Sid Harvey group, the Trial Examiner found that he “has no actual day-to-day duties in any of these corporations except Inc.”
3. Corporate Policy and Functional Relationships
Much of the hearing and a large part of the opinion of the Trial Examiner were devoted to an examination of policies, practices, and working conditions within the various Sid Harvey corporations. In view of the basic questions raised by a suit of this nature, a good deal of what the Trial Examiner concerned himself with was of marginal relevance and dubious materiality.
The Trial Examiner found that some of Inc.’s marketing activities are conducted in the building where Supply has its offices, although the areas in which the two corporations are located “are separated by partitions and lockable doors (which are open during working hours), and the employees of each company have separate entrances and separate restrooms.” The two pay rent directly to the landlord, a partnership in which Stephen Harvey “has an interest,” as he does in all the partnerships from which companies in the Sid Harvey group rent land and facilities. The two corporations located in the one building utilize a common switchboard, and Inc. pays Supply a service fee for “some minor services” such as janitorial work. All the companies in the Sid Harvey group have the same hospital, medical, group life, and automobile liability policies. Occasionally an employee of one of the companies will take a job with another Sid Harvey company. One accounting firm served all the Sid Harvey corporations and it “prepared an office manual of standard operating procedures.” However the companies were not required to use the manual.
The Trial Examiner compared the working conditions at Supply and Inc. and found:
“Although [the Union] showed a number of working conditions in common among the employees of Inc. and Supply, [including “the same system of rating jobs, the same work hours and two 10-minute rest periods, the same number of holidays, Christmas bonuses based upon length of service, the same profit-sharing program”] there were also many working conditions that were different between the two groups .... The two groups had different rules for qualification of overtime, different sick pay and disability benefits, and other benefits. Supply has no pension plan; Inc. does. Inc. has a cash attendance award. Supply does not. Inc. has a savings plan for employees; Supply does not. There are differences in the rules on ‘tardiness,’ smoking, making telephone calls, working on Election Day, to mention a few.”
More important for the question presented by this case, the Trial Examiner and the Board found that once a year “the presidents and some other top executives” of the Sid Harvey group of companies meet to discuss problems common to the companies. The Board found that at the May, 1970 meeting the strike at Supply was discussed, but “there was no proof that overall policies resulted from these meetings, particularly no overall labor policy or personnel policy.”
In addition the Board found that Stephen Harvey had personally fired two presidents of two Sid Harvey companies, and that he actively oversaw and controlled the financial aspects of the Sid Harvey companies. Inc. publishes a monthly news letter, “Renews,” which the Trial Examiner termed a “house organ.” This house organ contains news about people in the various Sid Harvey companies as well as corporate news. Its content reveals that the personnel of the companies considered themselves to be engaged in interlocking business activities in an interrelated corporate structure.
II. The Decision of the Board
The Board, adopting the Trial Examiner’s decision, stated that the question of whether the Union had violated § 8(b) (4) (i) and (ii) (B) by picketing Brooklyn, Suffolk, Nassau, and Inc. turned on whether the related companies were so closely allied as not to be “other employer [s]” within the meaning of that section. The Board said:
“On the ‘ally’ issue the precise question is whether the corporations were under the actual control of Stephen Harvey, as distinguished from his potential control.”
The Board found
“[u]pon all. the above facts and considerations and the entire record in the case considered as a whole . . . that despite the cooperation and mutual assistance among the various corporations directly involved herein, there is not that appreciable degree of integration of management and day-to-day operations between Supply, the primary employer, and the others, as to make them allies and deprive Inc., Brooklyn, Nassau, and Suffolk of the protection of Section 8(b) (4) of the Act.” (Emphasis added.)
In so holding, the Board relied heavily on the conclusion, that, despite Stephen Harvey’s dominant position in the corporate structures of Inc., Supply, and the various Sid Harvey sales companies, he did not actually control the daily operations of all these companies. In addition, in considering the differences in the working conditions and benefits of Supply, Inc., and the sales companies, the Board assumed that if the management and operations of the Sid Harvey group were integrated on a day to day basis, all working conditions and benefits — such as smoking rules and disability benefits — would be the same, regardless of the function or size of the individual company.
III. Section 8(b) (4) and the Neutral Secondary Employer
The question presented for decision by the Board was whether the four secondary employers picketed by the Union were in fact the same employer within the meaning of § 8(b) (4) (i) and (ii) (B), which provides:
“(b) It shall be an unfair labor practice for a labor organization or its agents—
******
(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in any industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees . Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . . ”
The question presented in this case is whether the Board applied the correct legal test and whether it could properly conclude, on the basis of the evidence in the record that the four employers picketed by the Union were “other employer [s]” within the meaning of the Act.
Section 8(b) (4), as amended, was enacted to prevent the widening of a labor dispute to entangle employers who had no concern with the original dispute. To this end Congress prohibited unions from engaging in secondary boycotts, that is “pressure tactically directed toward a neutral employer in a labor dispute not his own.” National Woodwork Mfrs. Ass’n v. N. L. R. B., 386 U.S. 612, 623, 87 S.Ct. 1250, 1257, 18 L.Ed.2d 357 (1967) (footnote omitted). The broad policy objective of this section is “the protection of neutrals against secondary pressure . . . .” Id. at 627, 87 S.Ct. at 1259 (emphasis added) “Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b) (4) (B). This concern was focused on the ‘secondary boycott,’ which was conceived of as pressure brought to bear, not ‘upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it’ ” (footnotes omitted). N. L. R. B. v. Local 825, Int’l Union of Operating Engineers, 400 U.S. 297, 302-303, 91 S.Ct. 402, 406, 27 L.Ed.2d 398 (1971). The basic question in this case is whether in fact Inc., Nassau, Brooklyn, and Suffolk were neutral third parties in the dispute between respondent Union and Supply. N. L. R. B. v. Local 810, Steel Fabricators, 299 F.2d 636, 637 (2d Cir. 1962); N. L. R. B. v. Milk Drivers Local 584, 341 F.2d 29, 32-33 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15 L.Ed.2d 64 (1965).
In determining whether an employer is in fact a neutral in a labor dispute, the courts have considered such factors as the extent to which a corporation is de facto under the control of another corporation, the extent of common ownership of the two employers, the integration of the business operations of the employers, and the dependence of one employer on the other employer for a substantial portion of its business. See, e. g., Carpet Layers Local 419 v. N. L. R. B., 429 F.2d 747, 752 (D.C. Cir. 1970); N. L. R. B. v. General Teamsters Local 126, 435 F.2d 288, 291 (7th Cir. 1970); Truck Drivers Local 728 v. Empire State Express, Inc., 293 F.2d 414, 423 (5th Cir.), cert. denied, 368 U.S. 931, 82 S.Ct. 365, 7 L.Ed.2d 194 (1961); N. L. R. B. v. Somerset Classics, Inc., 193 F.2d 613, 615 (2d Cir.), cert. denied, 344 U.S. 816, 73 S.Ct. 10, 97 L.Ed. 635 (1952).
As the court said in Vulcan Materials Co. v. United Steelworkers of America, 430 F.2d 446, 451, 453 (5th Cir. 1970), cert. denied, 401 U.S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971):
“In the final analysis, however, the question of neutrality cannot be answered by the application of a set of verbal formulae. Rather, the issue can be resolved only by considering on a case-by-case basis the factual relationship which the secondary employer bears to the primary employer up against the intent of the Congress as expressed in the Act to protect employers who are ‘wholly unconcerned’ and not involved in the labor dispute between the primary employer and the union.
* * * * * *
In determining whether the relationship of a secondary employer and a primary employer is such as to destroy neutrality, the court must look to the essence of the relationship, and not to its incidental trappings.”
See also Local 24, Int’l Bhd. of Teamsters v. N. L. R. B., 266 F.2d 675, 680 (D.C. Cir. 1959). The Supreme Court has cautioned against the mechanical application of tests which obscures the “central theme” — neutrality—of this section. Nat’l Woodwork Mfrs. Ass’n v. N. L. R. B., supra, at 625, 87 S.Ct. 1250. See also Local 761, Intern Union of Electrical, etc., Workers. v. N. L. R. B., 366 U.S. 667, 677, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). Cf. N. L. R. B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).
Neutrality, for purposes of the Act, is not a technical concept. To determine whether an employer is neutral involves a common sense evaluation of the relationship between the two employers who are being picketed. In mechanically applying a “day-to-day” test in this case, the Board engaged in a technical exercise in the intricacies of corporate structure rather than a realistic, common sense evaluation of neutrality.
The Sid Harvey organization is essentially an integrated complex which manufactures, distributes, and sells a limited number of products. Ownership and control of the five corporations is centralized or overlapping. The daily contact among the corporations is extensive, and the operation and success of each is interrelated with and heavily dependent upon the other members of the group performing their assigned tasks. Only in the most strained and technical sense could the picketed employers be characterized as neutral.
The petition for enforcement is denied, and the cross petition for an order vacating the order of the Board is granted.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_two_issues | A | 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.
UNITED STATES of America, Appellee, v. Luis Alphonso HENRIQUEZ, Jose Colon Ortiz, Segundo Zacarias Ortiz, Juan Andres Julio-Cardales, Joaquim G. Mejia, Olivio Omelis-Gundis, Felipe Molina Marrujo, Francisco Javier Gomez, and Rodrigo Roman-Ortiz, Appellants.
Nos. 458, 459, 466, 531, 588, 461, 460, 485, 462, Dockets 83-1186 to 83-1193, and 83-1241.
United States Court of Appeals, Second Circuit.
Argued Dec. 12, 1983.
Decided March 20, 1984.
Carol B. Schachner, Asst. U.S. Atty., New York City (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Gregory J. Wallance, Asst. U.S. Atty., Brooklyn, N.Y., on brief), for appellee.
Phylis Skloot Bamberger, New York City (Robin Charlow, Legal Aid Society, Federal Defender Services Unit, New York City, on brief), for appellant Gomez.
Lawrence Farkash, New York City, for appellant Omelis-Gundis.
Austin V. Campriello, New York City (Polstein, Ferrara & Campriello, New York City, on brief), for appellant Roman-Ortiz.
Gary Schoer, Forest Hills, N.Y., for appellant Marrujo.
Stuart R. Shaw, New York City, for appellant Henriquez.
Frank J. Livoti, Mineóla, N.Y., for appellant Colon Ortiz.
Kenneth Ramseur, New York City, for appellant Segundo Ortiz.
George S. Popielarski, Brooklyn, N.Y., for appellant Julio-Cardales.
Millard King Roper, Bellerose, N.Y., for appellant Mejia.
Before FEINBERG, Chief Judge, and OAKES and PIERCE, Circuit Judges.
OAKES, Circuit Judge:
This appeal, coming to us on conditional pleas of guilty preserving several questions, raises three issues. The first of these is said to go to “subject matter jurisdiction,” the second relates to the constitutionality of the underlying jurisdictional statute, and the third is based on the government’s failure to preserve certain tapes. The appellants, all foreign nationals, pleaded guilty to possession with intent to distribute marijuana “on board a vessel subject to the jurisdiction of the United States on the high seas,” in violation of 21 U.S.C. § 955a(a) (Supp. V 1981) and 18 U.S.C. § 2 (1976) (aiding and abetting). The United States District Court for the Eastern District of New York, Jacob Mish-ler, Judge, accepted the defendants’ guilty pleas on the condition that the issues of subject matter jurisdiction and the failure to preserve the tapes would be preserved. We remand for further findings in respect to the status of the vessel involved, the “Juan XXIII.”
FACTS
On January 5, 1983, at about 3:00 p.m., a single-stack motor vessel was sighted by a U.S. Coast Guard aircraft in international waters approximately 73 miles off Long Island. The vessel was headed for Mon-tauk. Fifty minutes later the vessel had altered its course 180 °, and by 5:00 p.m. personnel aboard the aircraft observed an individual jettisoning bale-like objects, some 123 of which were counted by the aircraft. The aircraft subsequently dropped a marker buoy at the spot the bales were jettisoned. A Coast Guard cutter was dispatched and three aircraft successively maintained surveillance of the vessel until the cutter arrived in the vicinity at 2:30 a.m. on January 6.
The cutter came within sight of the vessel at approximately 7:00 a.m. No identifying markings on the vessel were visible from as close as 300 yards. After several unsuccessful attempts to establish contact by radio or bullhorn, the Coast Guard finally elicited a radio response that the vessel was the Juan XXIII of Honduran nationality, and permission was given to board. Circling the vessel prior to boarding, the boarding party saw two small boards or plaques on the railing just above the pilot house reading “Juan XXIII, Honduras.” The boarding party was given the vessel’s Honduran registry papers, dated September, 1979, later found by the district court to be counterfeit. Search of the engine room and cargo for a “main beam number” revealed traces of what appeared to be marijuana, the smell of which pervaded the air despite the hold having been washed down with diesel fuel. A field test on the substance indicated the presence of THC, the active ingredient of marijuana. The boarding party returned to the cutter.
According to the testimony of Lt. Voiles, who had headed the boarding party, the Coast Guard received word that night, January 6, that the Honduran government refuted the claim to Honduran registry. The following day the Juan XXIII was again boarded. Wooden pallets which had been on the floor of the cargo hold the day before were no longer there. The appellants were taken into custody and the Juan XXIII secured. Meanwhile many of the bales which had been jettisoned had been recovered. Eventually, custody of the crew, contraband, and other evidence was transferred to the Drug Enforcement Administration and prosecution on a two count indictment charging conspiracy to violate 21 U.S.C. § 955a(a) and possession of marijuana with intent to distribute commenced.
Motions to dismiss for lack of subject matter jurisdiction were filed on the basis that the United States did not have jurisdiction over Colombian nationals aboard a non-American vessel in international waters. It was also argued that there was insufficient proof that the vessel was “stateless” so as to be subject to the jurisdiction of the United States within section 955a(a), and that the indictment should be dismissed. Next it was argued that the Government’s evidence of the air and sea surveillance should have been suppressed because the Coast Guard, in what the United States Attorney called an act of “bureaucratic negligence,” destroyed certain tapes which the Magistrate had in effect ordered preserved. Certain other motions now waived were filed. All defense motions were denied, with the judge making findings in connection with the “statelessness” issue that will be discussed below.
DISCUSSION
Subject Matter Jurisdiction
A. Nexus Requirement. Appellants argue that Congress cannot assert American jurisdiction to prosecute criminally foreigners on non-American vessels anywhere on the high seas in the complete absence of any nexus between the defendants and the United States, even though Congress clearly intended, as it provided in 21 U.S.C. § 955a(h) (Supp. V 1981), “to reach acts of possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States.” The district court found, however, that there was a nexus between the defendants and the United States. The court concluded that the defendants possessed marijuana with intent to distribute it in the United States from the fact that the vessel was initially sighted beaded towards Montauk Point and then, upon sighting the well-marked Coast Guard aircraft,- turned around and took flight in the opposite direction. We do not quarrel with that finding which the court found was “established ... beyond any reasonable doubt.” But the law of this circuit, as recently formulated in United States v. Pinto-Mejia, 720 F.2d 248, 260-61 (2d .Cir.1983), is that “stateless vessels on the high seas are, by virtue of their statelessness, subject to the jurisdiction of the United States ... even absent proof that the vessel’s operators intended to distribute their cargo in the United States____” Thus on either basis — that there was a nexus or that a nexus is unnecessary — the ruling of the district court that there was jurisdiction must be sustained.
B. “Statelessness.” The question remains whether the Juan XXIII was “stateless,” for only stateless vessels or vessels “assimilated to” stateless vessels come under United States jurisdiction pursuant to section 955a(a) and (b). The Government argues that this question was not reserved since it does not fall under the rubric “subject matter jurisdiction,” but rather goes to the merits. See Fogel v. Chestnutt, 668 F.2d 100, 105-07 (2d Cir. 1981) (Friendly, J.) (elaborating upon judicial confusion between “jurisdiction” and whether the complaint states a cause of action), cert. denied, 459 U.S. 828, 103 5. Ct. 65, 74 L.Ed.2d 66 (1982). But whether or not one agrees with the Government that the Pinto-Mejia panel fell into the trap against which Judge Friendly warned in Fogel, appellants here were entitled to rely on that case’s holding that statelessness was an element of subject matter jurisdiction. 720 F.2d at 256-61.
We have no doubt that the issue of “statelessness” was preserved for review here under the slippery label of “jurisdiction.” At all times below both counsel and court treated the question of statelessness as part of the issue of subject matter jurisdiction, the court referring to it at one point as “some variation” of the jurisdiction issue and, later, “a jurisdiction issue.” Moreover, it is more than a bit inconsistent for the Government to argue as it does that Pinto-Mejia was correct in finding that the stateless nature of the vessel is the basis for subject matter jurisdiction under international law, but wrong to treat the question of the vessel’s status as one going to subject matter jurisdiction. In any event, like the panel in Pinto-Mejia, we will treat the issue as preserved for review as the parties and district court intended it to be.
On the hearing below the Government’s evidence adduced to show statelessness was as follows. First, there was the direct evidence of the observations of the vessel. Unlike most vessels, this vessel was not flying a flag and lacked a main beam number. The sole reference to Honduras on the vessel was on the two small plaques, “Juan XXIII, Honduras,” on the railing above the bridge. Second, there was the hearsay testimony of Lieutenant Voiles, the head of the boarding party, that a message was received on the evening of January 6,1983 in response to a request by the Coast Guard cutter that Honduras refuted the Juan XXIII claim of registry. The testimony did not indicate who arrived at that conclusion, how it was arrived at, or through what channels the information passed. Cf. United States v. Yakobov, 712 F.2d 20, 23-24 (2d Cir.1983) (proof of lack of registration not satisfied by hearsay statements inadmissible under Fed.R.Evid. 803(10)). Third, the Government produced a Honduran Certificate of Non-Registry, dated February 11, 1983, issued under the seal of the Commandant General of the Honduran Navy, duly authenticated and stating that a search had been conducted
of the Records on the Registration of the vessel “M/V Juan XXIII” pursuant to the request from the Government of the United States of America. The results of the said search have been negative, as I was unable to locate any records such as are regularly kept by the Government of Honduras. Therefore, the Government of Honduras concludes that the “M/V Juan XXIII” is not a Honduran registration vessel.
' To counter the Government’s evidence, the appellants produced Ralph Addonizio, a private investigator who had been advised by the Honduran Consul General that the Juan XXIII’s Honduran registration appeared to be authentic, but that he, the Consul General, would only testify at the request of the United States Government. The Consul General said he would cable Honduras as to the authenticity of the 1979 papers. Addonizio so testified and, when on his cross-examination the government introduced its Certificate of Non-Registry (and a translation thereof), the court directed the witness to take the Certificate and translation to the Consul General and to report back. He did so and reported as a court witness that the Consul General said that the Certificate seemed genuine, that his cable inquiring as to the 1979 papers had not been answered, and that some 500 ships had had their Honduran registrations cancelled in 1983. The Honduran Consul ultimately did not testify, nor was any answer to his cable of inquiry or report of it adduced. On the foregoing the district court found that the vessel was stateless and that its 1979 registration certificate “was a counterfeit certificate and it simulated or assimilated the certification of registry in Honduras.”
At oral argument on this appeal much discussion ensued as to what the Government’s burden of proving statelessness was, the argument touching upon standards ranging from some evidence to a mere preponderance of the evidence and to beyond a reasonable doubt. Without getting into this question, which subsumes or may subsume questions as to whether statelessness is a matter going to subject matter jurisdiction or is an element of the crime (as to which see supra note 6 and accompanying text), as well as questions pertaining to the Government’s burden of proof on a conditional plea of guilty, remand for the district court to consider these issues in the first instance. We note that there was vigorous briefing and argument on appeal on the question whether the proof here was sufficient to establish that on January 6-7, 1983, when the vessel was searched and seized and appellants arrested, it lacked a valid Honduran certificate. For all that appears the 1979 papers could have been genuine and the registry cancelled between January 6-7 and February 11, the date of the Certificate of Non-Registry; under such a scenario all papers were genuine. There may well be insufficient evidence to support a finding of counterfeiting. Far preferable would be a certificate of non-registry which satisfies the requirements of Fed.R.Evid. 803(10) that speaks to the date of search and seizure, or a similarly valid showing of prior cancellation of the 1979 papers or non-registration in the first instance. See United States v. Fitzpatrick, 581 F.2d 1221, 1223 (5th Cir. 1978) (allegation that bank robbed was insured by FDIC; proof must relate to day of robbery).
On this basis, appellants would have us reverse the district court outright and dismiss the indictment, going so far as to suggest that the double jeopardy clause of the Fifth Amendment is involved. We view the suggestion as unavailing since this was, after all, a conditional guilty pléa, cf. Forman v. United States, 361 U.S. 416, 425-26, 80 S.Ct. 481, 486-87, 4 L.Ed.2d 412 (1960) (no double jeopardy on retrial after conviction reversed and remanded). Accordingly, exercising our power to determine cases under 28 U.S.C. § 2106 (1976), see Forman v. United States, 361 U.S. at 425, 80 S.Ct. at 486, as the court did implicitly in Pinto-Mejia, 720 F.2d at 258, we remand so that the district court may determine the appropriate standard of proof and make further findings, with the Government to have the opportunity to adduce evidence sufficient to satisfy whatever burden it may have.
Coast Guard Tapes
Lieutenant Commander D’Alessandro, as liaison between the Coast Guard District Legal Office and the United States Attorney’s Office in this case, was responsible for supervising the gathering of evidence. Coast Guard Operations Center (OPCEN) in New York is responsible for keeping track of cases involving Coast Guard operational units away from base. It maintains twenty-four hour continuously running tape recordings of all ship to ground communications, as well as search and rescue chronological logs (“chronologs”) and message traffic of ships within its jurisdiction. The twenty-four hour tapes record all telephone conversations with field units. Simultaneously with the recordings Coast Guard personnel make entries in the chronolog reflecting the substance of the conversations. The tapes are stored at OPCEN for thirty days and then routinely reused for budgetary reasons.
Sometime at or near the time of this case OPCEN formulated a policy which required any office requesting that the original tapes be retained beyond thirty days either to provide replacement tapes or sufficient funds to buy them, a policy which Lieutenant Commander D’Alessandro learned of only in late January, 1983. Defense attorneys requested the production of all tape recorded material relating to this case, and this request was embodied in a magistrate’s order. Subsequently, D’Alessandro prepared a memorandum requesting the participating units to preserve “all tapes, logs, records, etc.,” and the memorandum was sent to New York OPCEN, Boston OPCEN, the Boston Communications Center which monitors all Coast Guard aircraft operations in the North Atlantic and routinely relays messages to New York OP-CEN, various other air stations and the vessels which were or might be involved. In response to the written request for preservation of all evidence, New York OPCEN advised the District Legal Office of its new policy. Evidently, however, the reply was directed to D’Alessandro’s superior, Commander Matthews, and no adequate response was made, so that the tapes in question were routinely reused after thirty days. Re-use of course means erasure.
Appellants unsurprisingly complain that this erasure either deprived them of their rights to due process and a fair trial or that the court should at least have precluded the Government from using at trial testimony pertaining to the surveillance and seizure of the Juan XXIII. The Government, on the other hand, claims that the appellants were in no way prejudiced because the information was contained in the chronologs and message traffic files summarizing what had been taped at OPCEN and Boston Communication Center and, moreover, personnel from the cutter had made their own cassette recordings of the actual boarding, and these were played for all the defendants and their attorneys in advance of the suppression hearing.
This court was somewhat surprised to learn that the District Legal Office responsible for law enforcement cases for the Coast Guard was not familiar with our decisions in United States v. Bufalino, 576 F.2d 446 (2d Cir.) (destruction of tapes), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978), or United States v. Paoli, 603 F.2d 1029, 1036-37 (2d Cir.) (destruction of notes), cert. denied, 444 U.S. 926, 100 S.Ct. 264, 62 L.Ed.2d 182 (1979). A Coast Guard legal officer testified that he did learn of United States v. Grammatikos, 633 F.2d 1013 (2d Cir.1980), but only after he told the prosecuting attorney that the tapes in this case had been destroyed. The majority opinion in Grammatikos said that “[t]he government has long been on notice of its duty to preserve discoverable evidence and has been repeatedly warned of the jeopardy in which it places its prosecutions when it disregards this obligation.” Id. at 1019. Bufalino had also warned that
we will look with an exceedingly jaundiced eye upon future efforts to justify non-production of a Rule 16 or Jencks Act “statement” by reference to “department policy” or “established practice” or anything of the like____ Where, as here, destruction is deliberate, sanctions will normally follow, irrespective of the perpetrator’s motivation, unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant.
576 F.2d at 449. This warning was explicitly reiterated in Paoli, 603 F.2d at 1036.
This matter has given us considerable difficulty. The trial judge found no intent to destroy evidence and “absolutely no prejudice to the defendants” since the logs “clearly support the oral testimony giv-en____” He also found that there is no question but that “quantities of marijuana were aboard the vessel____” We ultimately resolve the issue as did Grammatikos and the First Circuit case of United States v. Arra, 630 F.2d 836, 849 (1st Cir.1980), also involving the Coast Guard, this time in favor of the Government. We do so, however, with full recognition of Judge Frank’s admonition in United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946) (dissenting opinion), that affirmance in these circumstances makes the “deprecatory words we use in our opinions on such occasions ... purely ceremonial.”
So that we will not again be in the position in which the Coast Guard has cast us in this case, in the exercise of our supervisory powers, we direct the United States Attorney to advise the United States Coast Guard and each and every agency referred to at page li of the Government’s brief that in the future deliberate, negligent or other destruction of tapes, whether for budgetary reasons or otherwise, will not be tolerated by this court. We direct further that the United States Attorney report back to this court within 90 days advising us of the warnings given and the replies received.
Judgment reversed and remanded in accordance with the opinion.
. We have repeatedly suggested that caution be used when accepting guilty pleas subject to a variety of conditions because they tend to undercut finality in the criminal process and create unneeded appellate litigation. E.g., United States v. Burns, 684 F.2d 1066, 1071 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983); United States v. Thibadeau, 671 F.2d 75, 79-80 (2d Cir. 1982). This case well illustrates the basis for our concern.
. 21 U.S.C. § 955a(a) provides:
It is unlawful for any person on board a vessel of the United States or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.
. 21 U.S.C. § 955b(d) provides:
"Vessel subject to the jurisdiction of the United States" includes a vessel without nationality or a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the Convention on the High Seas, 1958.
. While a commentator, Note, High Seas Narcotics Smuggling and Section 955a of Title 21: Overextension of the Protective Principle of International Jurisdiction, 50 Ford.L.Rev. 688 (1982), suggests that absent a territorial nexus marijuana trafficking does not fall within any of the principles of international law justifying the assertion of extraterritorial jurisdiction, two other circuit courts of appeal have agreed with the statement of Pinto-Mejia. United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir.1982), cert. denied sub nom. Pauth-Arzuza v. United States, 459 U.S. 1114, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983); United States v. Howard-Arias, (>19 F.2d 363 (4th Cir.), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982). In any event, United States courts are obliged to enforce congressional enactments and not international law when the two conflict unless the law would violate the due process clause of the Fifth Amendment. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1334 (2d Cir. 1972).
. It is also argued that 21 U.S.C. § 955a(a) as applied violates the notice requirement of the due process clause of the Fifth Amendment. See Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957); United States v. Man-cuso, 420 F.2d 556 (2d Cir.1970); United States v. Sansone, 385 F.2d 247 (7th Cir.1967) (customs agents had duty to inform defendant of registration requirement). The argument is based not only on the claim that the statute is "unprecedented in international law" and the proposition that marijuana trafficking itself is not universally condemned, but also on the alleged vagueness of the definition of "vessel without nationality" in 21 U.S.C. § 955b(d), supra note 3. On this point, however, we agree with the Eleventh Circuit in United States v. Marino-Garcia, 679 F.2d at 1383-84, that the term “vessel without nationality” clearly encompasses vessels not operating under the authority of any sovereign nation.
. As Judge Friendly pointed out in Fogel v. Chestnutt, 668 F.2d at 107, even the highest. Court has fallen into the same word trap. E.g., Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 149-50, 100 S.Ct. 960, 967-68, 63 L.Ed.2d 267 (1980). See generally United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 39, 73 S.Ct. 67, 70, 97 L.Ed. 54 (1952) (Frankfurter, J., dissenting) (“I do not use the term 'jurisdiction' because it is a verbal coat of too many colors.”).
. While this evidence might well establish probable cause to search and seize the vessel, the lawfulness of the search and seizure is a matter in no way in issue. It surely is not admissible evidence as to the fact of statelessness.
. Appellants’ counsel was not allowed to offer into evidence testimony which allegedly would have shown that a military junta was in power in Honduras at the time that the Juan XXIII’s documents were purportedly prepared. If established to be a fact, this might also help explain why a later Honduran government might have no record of the registration.
. The briefs did not address this issue except in generalities. On remand perhaps the parties will give the district court the benefit of counsel’s research on these points.
. That is, New York OPCEN, Boston OPCEN, Boston Communications Center, Air Station Cape Cod, Air Station Brooklyn, Group Shinne-cock, Long Island, and Air Station Elizabeth City.
Question: Are there two issues in the case?
A. no
B. yes
Answer: |
songer_casetyp1_2-3-1 | G | 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 "civil rights - civil rights claims by prisoners and those accused of crimes".
Charles McCORKLE, Plaintiff-Appellant, v. W.E. JOHNSON, Warden, Joseph Kolb, Chaplain, Freddie V. Smith, Commissioner, Defendants-Appellees.
No. 88-7478
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Aug. 24, 1989.
P. David Bjurberg, David Christy, and Beth Jackson Hughes, Asst. Attys. Gen., Montgomery, Ala., for defendants-appel-lees.
Before VANCE, JOHNSON and CLARK, Circuit Judges.
PER CURIAM:
The judgment of the district court is AFFIRMED on the basis of the memorandum opinion entered by the district court on July 13, 1988. (Attached hereto as Appendix.)
APPENDIX
In The United States District Court For The Southern District of Alabama Southern Division Charles McCorkle, Plaintiff, vs. W.E. Johnson, et al., Defendants.
Civ. A. No. 84-0918-C
MEMORANDUM OPINION
This action was referred to the Magistrate for submission of recommendations pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate submitted recommendations, and timely objections to those recommendations were filed by the plaintiff. In accordance with 28 U.S.C. § 636(b)(1)(C), the court has made a de novo determination of those portions of the Magistrate’s recommendations to which objections were made.
Charles McCorkle, a state prisoner confined in the Holman facility, filed this complaint pursuant to 42 U.S.C. § 1983 seeking redress for the deprivation of his First Amendment right to freely exercise his chosen religion. The defendants are prison officials who allegedly impinged on the plaintiff’s practice of the Satanic “religion” by denying plaintiff’s request for access to certain Satanic books and articles, including The Satanic Bible, The Satanic Book of Rituals, and a Satanic medallion. Their defense is three-fold: (1) Satanism is not a religion entitled to First Amendment protection; (2) assuming it is a religion, the plaintiff is not a sincere believer in Satanism; and (3) access to the requested books and medallion would pose a threat to the security of the prison. The Magistrate held that all three defenses were valid and recommended that judgment be entered in favor of the defendants.
The threshold questions of whether Satanism is a religion and, if it is, whether plaintiff is a sincere believer need not be decided since it is clear that, even if these questions are answered affirmatively, the challenged prison policy does not violate the Free Exercise Clause of the First Amendment as it is applied to the States through the Fourteenth Amendment. When it is alleged that a prison policy impinges on an inmate’s constitutional rights, the policy is valid “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Giving the deference that is due to the officials charged with prison administration, see Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977), the court finds that the policy at issue in the present case successfully withstands this scrutiny; it is not an exaggerated response to the situation.
There are several factors which are relevant in determining the reasonableness of this policy. First, there must be a “valid, rational connection” between the prison restriction and the legitimate governmental interest put forward to justify it. Turner, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). The restriction at issue here clearly meets this standard. The prohibition on Satanic materials such as those requested by the plaintiff is justified by the defendants’ concern for institutional security and order. It is an informed and measured response to the violence inherent in Satan worship, and to the potential disorder that it might cause within the prison.
Testimony at the evidentiary hearing turned gruesome when the plaintiff recounted two of the rituals espoused by The Satanic Book of Rituals. The fertility ritual includes the sacrifice of a female virgin, preferably a Christian. Also explained in this book, according to the plaintiff, is the initiation ritual. Wrist-slashing, blood-drinking, and the consumption of human flesh — usually fingers — are some of the gory highlights of this ceremony. The plaintiff quipped that hopefully the person whose flesh is eaten is alive at the end of the ritual.
Candles, a common item in many religious ceremonies, are also used in the Satanic rituals. However, the candles preferred by the plaintiff and other Satanists are not made of wax or paraffin; instead, they are made from the fat of unbaptized infants.
An inmate witness subpoenaed by the plaintiff testified that he has observed the plaintiff performing certain Satanic rituals within Holman Prison on several occasions. According to this testimony, the plaintiff, as part of these rituals, drew his own blood by slicing his wrist or using a needle, and burned paper. Mr. McCorkle has also asked other inmates for their blood. Approximately three years ago, one inmate got highly irritated when the plaintiff requested that he donate a vial of blood for use in the worship of Satan.
The teachings of The Satanic Bible, which the plaintiff claims to wholeheartedly believe, and desires to study, also present a significant threat to security and order within the prison. W.E. Johnson, Warden of Holman Prison, testified that upon review of The Satanic Bible, he concluded that persons following its teachings would murder, rape or rob at will without regard for the moral or legal consequences. Moreover, Warden Johnson thought that the plaintiff’s safety would be threatened if other inmates became aware of the contents of The Satanic Bible. Accordingly, he denied plaintiff’s requests.
Testimony from proclaimed Satanists, and an independent review of the book, confirms Warden Johnson’s conclusions about the beliefs of Satanists. A “master counselor” of a Satanic sect testified that the premise underlying all of the teachings in The Satanic Bible is that life should be lived according to individual desires without regard for conscience or consequences. Certain portions of the book are somewhat harsher. For instance, in the chapter entitled “The Book of Satan,” author Anton Szandor LaVey states that right and wrong have been inverted too long. He challenges readers to rebel against the laws of man and God. Furthermore, LaVey declares that hatred of ones enemies is of utmost importance; revenge should be a top priority.
Clearly, practices such as those described above, and the beliefs that encourage them, cannot be tolerated in a prison environment since they pose security threats and are directly contrary to the goals of the institution. Allowing the plaintiff access to the requested books and medallion would only encourage such behavior. Thus, it cannot be said that the policy in question is arbitrary; rather, it is logically connected to the governmental interests asserted.
A second factor relevant in determining the reasonableness of a prison restriction is that alternative means of exercising the asserted right remain open. Turner, 107 S.Ct. at 2262. The inquiry here is whether, under the restrictions imposed, the plaintiff is deprived of all means of practicing his “religion.” See O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 2406, 96 L.Ed.2d 282 (1987). Testimony at trial revealed that the plaintiff and other members of the various Satanic sects in Holman Prison are practicing Satanists despite the deprivation of the books and medallion requested by the plaintiff. Moreover, plaintiff indicated that he wears a duplicate medallion and has memorized portions of both The Satanic Bible and The Satanic Book of Rituals. Clearly, the restrictions about which plaintiff complains have not foreclosed all avenues of his worship of Satan.
A third consideration in the reasonableness inquiry is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. Turner, 107 S.Ct. at 2262. Warden Johnson justifiably believes that books and memorabilia that teach hatred for one’s fellow man and disrespect for laws and legal order, and that encourage and explain the practice of violent acts such as flesh-eating and blood-letting, pose substantial threats to prison security and order, and are contrary to the rehabilitative goals of the institution. Consequently, the plaintiff’s asserted right to freely worship Satan can be exercised only at significant costs to guards, other prisoners, and society in general. Where such a trade-off is necessary, the choice made by prison officials should not be lightly set aside by the court since such judgments are peculiarly within their province. See Turner, 107 S.Ct. at 2263, (citing Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974)).
Finally, the presence of workable alternatives is evidence of the unreasonableness of the restrictions imposed. Turner, 107 S.Ct. at 2262. Plaintiff, however, has not offered any alternatives that would fully accomodate his asserted rights at a de min-imis cost to the valid penological interests that gave rise to the imposed restrictions.
The restrictions challenged by the plaintiff are reasonably related to valid penological interests. Accordingly, the court refuses to substitute its judgment on difficult matters of prison administration for the determinations of those charged with the formidable task of running a prison. See O’Lone, 107 S.Ct. at 2407. The court will by separate document enter final judgment dismissing the plaintiff’s complaint on the merits.
DONE this 13 day of July, 1988.
Emmett R. Cox
UNITED STATES CIRCUIT JUDGE SITTING BY DESIGNATION
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
Answer: |
songer_appbus | 0 | 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.
UNITED STATES of America, Plaintiff-Appellee, v. Patrick Henry EARLEY, Defendant-Appellant.
No. 72-1803.
United States Court of Appeals, Tenth Circuit.
July 20, 1973.
Stephen K. Lester, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.
Peter H. Ney, Englewood, Colo., for defendant-appellant.
Before PHILLIPS, HILL and SETH, Circuit Judges.
ORIE L PHILLIPS, Circuit Judge.
On October 15, 1971, a 12-count indictment was returned in the United States District Court for the District of Kansas against Patrick Henry Earley and Wayne E. Porter.
Count I charged that Earley and Porter, together with 10 other persons who were named as coconspirators, but not named as defendants, were charged with conspiracy to commit offenses against the United States. Count I further charged that the object, purpose and intent of the conspiracy was to “travel in and cause the travel and use of the facilities of interstate commerce with intent to:
“(a) Distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, in which state such acts of arson were committed;
“(b) Commit crimes of violence to further the aforesaid unlawful activity; and
“(c) Otherwise promote, manage, establish, carry on, and to facilitate the promotion, management, establishment, and carrying on the unlawful activity of arson.”
We think it will be helpful if we set out the provisions of 18 U.S.C.A. § 1952, as follows:
Ҥ 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises
“(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, * * * with intent to—
“(1) distribute the proceeds of any unlawful activity; or “(2) commit any crime of violence to further any unlawful activity ; or
“(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
“(b) As used in this section ‘unlawful activity’ means * * * (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.”
Count III charged that Earley on or about August 11, 1968, traveled “in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to carry on and facilitate the carrying on of the unlawful activity of arson, and did thereafter distribute the proceeds of the unlawful activity of arson, and did thereafter at Wichita, Kansas, continue to carry on the unlawful activity of arson, in violation of 18 U.S.C. 1952.”
Count IV charged that Earley on or about November 17, 1968, made a firearm, “to wit: a destructive device as defined by 26 U.S.C. 5845(f), without having first filed with the Secretary of the Treasury or his delegate to make and register the destructive device on the form prescribed by the Secretary or his delegate, as required by 26 U.S.C. 5822(a), in violation of 26 U.S.C. 5861(f).”
Count V charged Earley with possession on or about November 17, 1968, of “a destructive device as defined by 26 U.S.C. 5845(f), which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d).”
Count VII charged that Earley on or about June 30, 1969, “did transport in interstate commerce from Duncan, Oklahoma, to Wichita, Kansas, a firearm, to wit: a destructive device as defined by 26 U.S.C. 5845(f), which had not been registered to him in the National Firearms Registration and Transfer Record as required by Chapter 53 of the Internal Revenue Code of 1954, as amended, in violation of 26 U.S.C. 5861(j).”
Count VIII charged that Earley on or about July 1, 1969, possessed “a firearm, to wit: a destructive device as defined by 26 U.S.C. 5845(f), which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d).”
Count IX charged that Earley traveled in interstate commerce “from Oklahoma City, Oklahoma, to Wichita, Kansas, with intent to carry on and facilitate the carrying on of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and did thereafter at Wichita, Kansas, carry on the unlawful activity of arson by bombing Ra-zook’s Thriftway Market, in violation of 18 U.S.C. 1952.”
Count X charged that Earley traveled “in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to facilitate the carrying on of the unlawful activity of arson, and did thereafter at Oklahoma City, Oklahoma, distribute the proceeds of the unlawful activity of arson, in violation of 18 U.S.C. 1952.”
Earley was convicted on Counts I, III, IV, V, VII, VIII, IX, and X, and found not guilty on Counts II, VI, and XI. Therefore, we have not set out what Counts II, VI, and XI charged.
Count XII of the indictment charged that Wayne E. Porter traveled "“in interstate commerce from Wichita, Kansas, to Perry, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to carry on and facilitate the carrying on of the unlawful activity of arson, and did thereafter distribute the proceeds of the unlawful activity of arson, in violation of 18 U.S.C. 1952.”
The case came on for trial on May 1, 1972. Earley appeared in person and by his counsel, Archibald Hill. Porter appeared in person and by his counsel, William C. Farmer and Everett C. Fet-tis. Mr. Hill informed the court that his home and his automobile had been burglarized early that morning, and that the papers he had prepared for use during the trial had been taken. He moved for a further continuance, which was denied.
The original transcript of the record of the trial consists of 10 volumes, which were filed in lieu of an appendix. If, instead of filing all of the original record, an appendix had been filed, much immaterial matter could have been omitted, and it would have greatly reduced the work of the court.
On the fifth day of the trial, out of the sight and hearing of the jury, Porter pleaded guilty to Count I, the conspiracy count, and Count XI was dismissed as to him and Count XII was dismissed.
After such pleas and dismissals, the jury were returned to the box and the court advised them that Mr. Porter had entered a plea of guilty; that he had conflicting engagements for Monday, May 8, 1972, and that the trial would be recessed until Tuesday, May 9,1972.
The court very carefully gave the jury the precautionary instruction usually given when there is a recess of a trial.
On Tuesday, May 9, 1972, the trial was resumed, and immediately after the jury had entered the box, the trial judge gave them this further precautionary instruction :
“The jury will recall that immediately preceding the recessing of the trial last Friday afternoon the Court at that time advised you that the Defendant Wayne Porter had entered a plea of guilty to count one of the indictment, that is, the conspiracy count, before the Court and that the Court had accepted it.
“I further specifically instruct you at this time that this jury may not in any way, in the smallest degree, consider the plea of the defendant Porter as creating any inference or aspect of guilt of the defendant Patrick Henry Earley as to the conspiracy charge set forth in count one of the indictment to which the defendant Porter has entered his plea of guilty, or as to the guilt of the defendant Patrick Henry Earley on any other count of the indictment with which he is charged in this case.
“The jury is reminded that the indictment charged numerous individuals, specifically ten persons, with being joint conspirators, and the admission of the Defendant Porter, as one of the alleged co-conspirators, cannot be considered in determining the guilt or innocence of the defendant Patrick Earley on any and all counts. You must consider only evidence produced in this courtroom from the witnesses in determining the guilt or innocence of the defendant Earley on each count upon which he is charged.”
The trial judge reiterated the above-quoted instruction in his general charge to the jury.
The evidence clearly warranted the jury in finding beyond a reasonable doubt the following facts:
Porter was the owner of several grocery stores situated in Wichita, Kansas. Three of such stores, respectively, known as University IGA Store, Grove IGA, and 21st Street IGA, were located in the northeast section of Wichita. Porter hired Earley, then a resident of Oklahoma, to set on fire or cause to be set on fire during the period extending from July 1968 through July 1969, and during a time of racial unrest in Wichita, the University IGA Store and two stores owned by Porter’s competitors. Earley, in turn, hired other persons to set on fire or assist him in setting on fire such three stores.
Such three stores were, in fact, set on fire by persons so hired by Earley, or were set on fire by Earley with the assistance of such other persons. Thus, three acts of arson were committed by Earley, as that offense is defined by the laws of Kansas.
Also, there was ample evidence to justify the jury in finding beyond a reasonable doubt that Earley committed the offenses charged in Counts I, III, IV, V, VII, VIII, IX, and X of the indictment. Earley does not challenge the sufficiency of the evidence adduced to warrant the jury in so finding, but bases his appeal on other alleged errors. Hence, we deem it unnecessary to set out the evidence at length.
Counsel for Earley contends that the trial court erred in overruling his oral motion for a continuance, made when the case was called for trial on May 1, 1972, on his stated ground that his automobile was broken into the preceding night and his briefcase, containing “all his notes, minutes, files, and questions of law and questions to be raised” at the trial, was stolen.
The indictment was returned on October 15, 1971. The arraignments were set for November 15, 1971. The history of the case from that day on reflects one postponement after another, made at the request of Archibald Hill, counsel for Earley, up to and including his motion for a continuance, made on May 1, 1972, on the eve of the trial.
At Hill’s request, the arraignments were postponed from November 15, 1971, to December 6, 1971. On the latter date, Earley was arraigned and entered pleas of not guilty as to Counts I to XI, inclusive, and the trial court stated that the case would be set for trial at some date in January 1972. Also, on that date, Hill was given 10 days by the court within which to file motions. On December 16, 1971, Hill filed a motion to extend the time for the filing of such motions until December 21, 1971, because of the fact he was engaged in a session of the Oklahoma Legislature, of which he was a member. On January 10, 1972, an order was made denying the last-mentioned motion. At that time, Hill had not filed any of such motions. Thereafter, argument on such motions was continued by the court until January 17, 1972, because Earley was in jail in Oklahoma on state charges. On January 17, 1972, Hill did not appear, and hearing on such motions was continued by the court until April 4,1972.
The trial of the case was set for April 18, 1972, but on that date the court was informed that Hill was ill and in a hospital, and the court continued the trial until May 1,1972.
So far as the record discloses, Hill filed no motions, except for postponements, until May 1, 1972, when he filed a motion for a severance, and on November 12, 1971, when he filed a motion to suppress physical evidence and to suppress evidence of a confession.
The granting of a motion for a continuance rests in the discretion of the trial court, and the denial thereof by such court will not be set aside on appeal in the absence of a clear showing of an abuse of discretion.
The records of the trial show that Hill conducted a vigorous and competent defense of Earley, and there is nothing to indicate that he suffered any handicap by his claimed loss of his “notes, minutes, files, and questions of law and questions to be raised” at the trial. We conclude that the court did not abuse its discretion in overruling such motion for a continuance.
Earley contends that the trial court erred in denying his motion for a severance. In passing on such a motion the trial court has a wide discretion, and the burden is on the movant to show that he suffered sufficient prejudice from the denial of his motion to warrant the appellate court in finding that the trial court clearly abused its discretion.
As a basis for his claim that there was an abuse of discretion, Earley asserts that had there been a severance he would have avoided the prejudice which resulted to him:
(1) When the trial court advised the jury on the fifth day of the trial that Porter had pleaded guilty to the conspiracy count, and
(2) When evidence was adduced at the trial of other criminal acts on the part of Earley.
Since Earley asserts (1) and (2) as separate grounds of error, and since all three claims of error are related, we will proceed to consider all of them at this point.
First, as to the statement by the court to the jury that Porter had pleaded guilty to the conspiracy count. On the fifth day of the trial, after the jury had retired to the jury room, out of the sight and hearing of the jury Porter entered such plea, and Count XI, which charged Earley and Porter jointly with an offense, was dismissed as to Porter, and Count XII, which charged an offense only by Porter, was also dismissed.
Before recessing the trial, which had begun on May 1, 1972, on Friday, May 5, 1972, the court advised the jury that Porter had pleaded guilty to the conspiracy count. He then gave the usual precautionary instruction to be observed by the jury during the recess of the trial, and advised them that he had made prior commitments for Monday and that the trial would be recessed until Tuesday morning, May 9, 1973.
The trial, as to Earley, continued from May 9 to May 15, 1972.
It has long been the law in this circuit and in other circuits that the trial court may inform the jury that a codefendant has entered a plea of guilty, provided the jury is clearly instructed that such a plea cannot be considered as evidence of the guilt of the remaining defendant or defendants.
The instruction given by the court on May 9, 1972, and reiterated in his general charge, fully advised the jury that such plea could not be taken or considered in any way as evidence against Earley, and that they should determine his guilt or innocence on each count by which he was charged with an offense solely on the evidence adduced on the witness stand.
The reasons for advising the jury that a codefendant has pleaded guilty, and for the instruction given, are obvious.
Porter did not further appear during the several days the trial continued as to Earley. Were not the jury advised and instructed, they might well conclude that Porter had pleaded guilty, and give an erroneous effect to that fact in passing on the guilt or innocence of Earley. In fact, the procedure followed and the instruction given might well have redounded to Earley’s benefit, instead of his prejudice.
We hold that Earley was not prejudiced by the procedure followed with respect to Porter’s plea.
We turn now to Earley’s claim that evidence of other crimes committed by him was erroneously admitted, and conclude that such claim is not well founded.
In a number of instances, where a witness testified with respect to other crimes committed by Earley, the testimony was brought out by Earley’s counsel, Hill, on cross-examination of the Government’s witness, Virginia McCool. She would have been called as a witness by the Government against Earley, even though there had been a severance.
In other instances, testimony was part of the whole story, only part of which was brought out by Hill in his cross-examination.
One matter with respect to which counsel for Earley complains occurred in the absence of the jury and could not have done him any harm. Another was a repetition brought out by counsel for Porter of matters theretofore brought out by Hill, counsel for Earley, in his cross-examination of the witness. Moreover, the court instructed the jury to disregard any evidence adduced which tended to show that Earley had been guilty of other crimes than those charged against him in the indictment.
In Count IV, Earley was charged with making a destructive device, without first having filed a written application to make and" register such a device. In Count V, Earley was charged with the possession of the unregistered device he had made. The evidence established that Earley made and possessed the device on November 17, 1968, as charged in the indictment.
In 1968, Congress amended the National Firearms Act and provided that it should be cited as the “National Firearms Act Amendments of 1968.” Such amendments became effective on November 1, 1968. The Congressional intent of the National Firearms Act Amendments was to correct the constitutional deficiencies of the former Act, which the Supreme Court held to be unenforceable in Haynes v. United States, 390 U. S. 85, because it required registration almost exclusively by those in illegal possession of a weapon and made this information available for prosecution purposes. The 1968 amendments avoided the problem by extending the registration to all possessors of the weapons, legitimate or otherwise, and “by providing that registration information may not be used directly or indirectly to prosecute a natural person for an offense prior to or concurrent with his registration.”
Since the acts charged in Counts IV and V occurred after November 1, 1968, a prosecution for such offenses was legal.
Accordingly, the judgment and sentences of the court on the counts on which Earley was found guilty are hereby affirmed.
. United States v. Fairchild, 10 Cir., 435 F.2d 972, 973; United States v. Harris, 10 Cir., 441 F.2d 1333, 1335-1336; Johnson v. United States, 8 Cir., 291 F.2d 150, 153, cert. denied 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80; United States v. Hartenfeld, 7 Cir., 113 F.2d 359, 362, cert. denied 311 U.S. 647, 61 S.Ct. 30, 85 L.Ed. 413; United States v. Eagleston, 10 Cir., 417 F.2d 11, 14.
. Carpenter v. United States, 10 Cir., 463 F.2d 397, 399; United States v. Mallory, 10 Cir., 460 F.2d 243, 248; United States v. Jorgenson, 10 Cir., 451 F.2d 516, 523, cert. denied 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793; United States v. Harris, 10 Cir., 441 F.2d 1333, 1336; United States v. Rogers, 10 Cir., 419 F.2d 1315, 1317.
. Wood v. United States, 8 Cir., 279 F.2d 359, 363; United States v. Aronson, 2 Cir., 319 F.2d 48, 52; Fahning v. United States, 5 Cir., 299 F.2d 579, 580; United States v. Soares, 10 Cir., 456 F.2d 431, 433; Jiron v. United States, 10 Cir., 306 F.2d 946, 947; Hines v. United States, 10 Cir., 131 F.2d 971, 974.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_direct1 | A | 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.
Elmer EASLEY, Appellant, v. UNITED STATES of America, Appellee.
No. 7672.
United States Court of Appeals Tenth Circuit.
June 8, 1964.
Peter C. Dietze, Denver, Colo., for appellant.
Milton C. Branch, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., was with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
PER CURIAM.
Defendant was found guilty of having transported a stolen vehicle in interstate commerce in violation of 18 U.S.C. § 2312. He appeals, asserting that his written confession was improperly admitted into evidence under the totality of the circumstances and in view of the rule of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. We find no merit to the contentions.
On August 27, 1963, defendant was arrested by an officer of the Colorado State Highway Patrol for operating an improperly equipped automobile upon the highways of that state and for driving without a valid operator’s license. He was immediately taken before a justice of the peace, was adjudged guilty, and sentenced to a 12-day jail term. While in state custody defendant was interrogated by a special agent of the F.B.I. and on August 31 signed a written confession to the commission of the federal offense. On Saturday, September 7, he was placed under federal arrest and appeared before the United States Commissioner on , , n Monday, September 9.
When defendant’s confession was offered in evidence at the trial, objection to its voluntariness was timely made and the trial court properly proceeded to make preliminary inquiry of the circumstances surrounding the execution of the instrument. McHenry v. United States, 10 Cir., 308 F.2d 700. Both the testimony of the special agent and that of the defendant indicated that the interrogation of defendant was conducted with commendable fairness, without taint of threat or promise, and that defendant was fully advised of his rights, including the right to be silent and to consult counsel. There is no indication of unbecoming conduct upon the part of state officers, no offensive “cooperation” between state and federal officers, no exploitation of a physical or mental weakness in defendant’s condition, and nothing in the totality of circumstances that would dictate that the confession was made otherwise than as an expression of free will. Compare Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed. 2d 1037.
Defendant’s appearance before the United States Commissioner was made promptly after he was subject to federal restraint and the prohibition of Mallory against the use of confessions obtained during an unnecessary delay between arrest and arraignment is not here applicable. And although defendant s confession was made before he consulted counsel he was denied no right in such regard by either state or federal authority. Compare Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448.
The judgment is affirmed.
. Defendant specifically requested that the issue not be submitted as a factual issue to the jury.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_appfed | 1 | 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.
UNITED STATES of America, Appellant, v. Robert P. ANDERSON et al., Appellees.
No. 8134.
United States Court of Appeals Tenth Circuit.
Sept. 30, 1966.
See also 34 F.R.D. 518.
Kathryn H. Baldwin, Atty., Dept, of Justice (John W. Douglas, Asst. Atty. Gen., Lawrence M. Henry, U. S., Atty., Alan S. Rosenthal, Atty., Dept, of Justice, with her on the brief), for appellant.
Benjamin E. Sweet, Denver, Colo. (Ralph E. Crandell, Denver, Colo., with him on brief), for appellees.
Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
The First National Bank of Englewood, Colorado (Bank) loaned $250,000.-00 to U. S. Durox Corporation of Colorado (Corporation). In order to induce the Bank to make the loan to the Corporation, the appellees, directors of the Corporation, executed an unconditional guarantee to the Bank, its successors or assigns.
After default on the obligation, the Bank assigned the note together with all collateral including the unconditional guarantees to the Small Business Administration (SBA), who had joined with the Bank in a participating loan.
The directors, who guaranteed the loan, were ousted. A new board was elected and application for reorganization made under Chapter X of the Bankruptcy Act.
The ousted directors and the assignee, SBA, objected to the reorganization. Nevertheless, an amended plan which ordered liquidation of the assets was approved by the Bankruptcy Court.
SBA, a secured creditor under the plan, bid $250,000.00 for the property under an order of the court to sell the property for cash. After the sale had been approved, SBA applied to the court to permit it to pay $8,000.00 in cash and set off its secured obligation of $242,000.00 as full payment of the property purchased. The Bankruptcy Court refused to allow this method of payment, because it did not provide the necessary cash to pay the cost of administration of the reorganization attempt. The court agreed to permit SBA to set off a portion of the amount secured if it would pay $124,500.-00 in cash to the trustees. This amount was the estimated total of the priority claims in the Chapter X proceeding which included the costs of administration. SBA complied and received title to the property free and clear of all liens or claims against the debtor corporation.
The SBA then filed this action against the guarantors, who had induced the loan by their guaranty, claiming $113,668.87 on the guaranteed portion of the loan plus accruing interest as the deficiency.
The accountings contained in the record are confusing and do not afford an accurate accounting. The. trial court adjudged the liability to be the amount of principal balance plus interest as of February 6, 1959 (the date of the petition in bankruptcy); the costs and expenses of preservation, including insurance on the property (and interest on the amount of premium), repair of the property and local property taxes; and expenses directly connected with the auction sale including auctioneers. From the sum of these amounts is to be deducted the amount of $250,000.00 to determine the deficiency for which guarantors are now liable. Nowhere in the record can such an accounting be found.
The SBA appeals from this judgment complaining that the cost of administering the Chapter X proceedings is a charge which should be made against the guarantors and should be included in the liability adjudged by the trial court.
It is uncontroverted that: (1) SBA succeeded as assignee of the secured beneficiaries; (2) that SBA succeeded 'as secured creditor of the mortgage and the note; (3) that SBA became the creditor of the corporation for the balance due on the note; (4) that the guaranties are unconditional agreeing to pay the balance due on the note to the bank or its assignee without requiring the bank or its assignee to pursue or exhaust their rights or remedies against the debtor. The guaranties also provide that when the principal, interest and all other sums payable in accordance with the terms of the note of the debtor are due, payment will be made. The note provides, “the term indebtedness * * * shall mean the indebtedness evidenced by this note, including principal, interest, and expenses, whether contingent, now due or hereafter to become due and whether heretofore or contemporaneously herewith or hereafter contracted. The indebtedness shall immediately become due and payable, without notice or demand, upon * * * the filing of a petition * * * under the provisions of the Bankruptcy Act of 1898 * *
The question then is the effect of the participation of SBA in the bankruptcy proceedings, wherein it purchased the property and agreed to pay administrative costs to the trustee, upon the guarantors’ obligation.
Taking a broad and more comprehensive view of the entire proceedings, it becomes patent that these bankruptcy transactions can have little effect on the guaranties. Section 34 of the Bankruptcy Act provides that guarantors are not released from liability by a discharge of the bankrupt. Therefore, the reorganization proceedings and the sale to SBA do not have the effect of releasing guarantors from their obligations. The section, however, does not authorize the secured beneficiaries to incur additional expenses by engaging in proceedings other than for collection from the guarantors.
The trial court properly found, “On the basis of data now before the Court it is not possible to determine exactly the amount of the guarantors’ liability on a deficiency. The guarantors’ liability consists of: (1) The amount of principal balance as of February 6, 1959, plus interest thereon; (2) the costs and expenses directly attributable to preservation of the collateral, including insurance of the property (and interest on the amount of the premium), repair of the property, and local property taxes; * * * »
“The law is settled that a guaranty is a collateral agreement to pay a debt or perform a duty for another in case of default which may be enforced separately from the primary obligation. It is not necessary to proceed against the primary debtor. An unconditional guaranty is one whereby the guarantor agrees to pay or perform a contract upon default of the principal without limitation. It is an absolute undertaking to pay a debt at maturity or perform an agreement if the principal does not pay or perform, (citations omitted). A definition of conditional and unconditional contracts of guaranty and the liability of guarantors under them is well stated by this court in Pavlantos v. Garoufalis, [10 Cir.] 89 F.2d 203, 206, where it is said: * * * ‘An absolute guaranty is an unconditional undertaking on the part of the guarantor that the person primarily obligated will make payment or will perform, and such a guarantor is liable immediately upon default of the principal without notice. * * *’”
“As pointed out in Woodstock Bank v. Downer, 27 Yt. 539, supra, it was not necessary to bring an action against the maker of the bonds to charge defendants on their guaranty, nor do we think it was necessary to appear in the bankruptcy proceedings. Plaintiff could have proceeded against defendants without an action against the cement company, and without appearing in the bankruptcy proceedings.”
As indicated, supra, the SBA had a clear cause of action against the guarantors immediately after the default occurred and at the time the bankruptcy proceedings were filed.
SBA’s participation in the Chapter X proceeding was unnecessary to protect their interest, therefore, the guarantors would not be liable for unnecessary costs incurred in the administration of the attempted reorganization. “As a general rule, a guarantor, even under a conditional guaranty, is not liable for the costs of a suit which was instituted unnecessarily * * * ” Therefore, the trial court’s finding that the guarantors were responsible for the obligations represented by the note at the time the petition in bankruptcy was filed is sustained by the law and the evidence, and they cannot be charged with the unnecessary expense of the administration of the Chapter X bankruptcy.
Affirmed.
. 11 U.S.C. § 34 (1953).
. 6A Collier, Bankruptcy, § 11.18 at 694 (1965).
. United States v. Anderson, 226 F.Supp. 932, 940 (1964).
. Joe Heaston Tractor & Imp. Co. v. Securities Accept. Corp., 243 F.2d 196, 199 (10 Cir., 1957); Duke v. Reconstruction Finance Corp., 209 F.2d 204 (4 Cir., 1954).
. Walker v. McNeal, 134 Okl. 111, 272 P. 443, 447 (1928).
. Supra, note 4 and contents of note instrument.
. 38 C.J.S. Guaranty § 58 at 1215 (1943).
Question: 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.
Answer: |
songer_casetyp1_1-3-2 | Q | 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 "criminal - state offense".
Leroy WILLIAMS, # 004336, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
No. 82-5440.
United States Court of Appeals, Eleventh Circuit.
Aug. 22, 1983.
Mark A. Pizzo, Asst. Fed. Public Defender, Tampa, Fla., for petitioner-appellant.
Frank Lester Adams, III, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.
Before HILL, KRAVITCH and HENDERSON, Circuit Judges.
PER CURIAM:
Leroy Williams appeals from denial of federal habeas corpus relief. 28 U.S.C. § 2254. Finding no deprivation of constitutional rights, we affirm.
Appellant was charged with escape from a Florida correctional institution, tried and convicted in the state courts of Florida. The conviction was reversed and the matter remanded for a new trial due to violation of appellant’s right to assistance of counsel. Williams v. State, 337 So.2d 846 (Fla. 2nd DCA 1976). Prior to retrial appellant filed a motion for psychiatric examination. A court-appointed psychiatrist, applying the M’Naughten test of insanity, which is applicable in Florida, concluded appellant was sane at the time of the crime. Appellant thereafter filed a notice of intent to rely upon an insanity defense and a statement of particulars providing the basis for the defense of insanity.
At request of appellant’s counsel, a pretrial hearing was held to determine whether the defendant would be allowed to raise the insanity defense at trial. The state trial court heard arguments, applied the M’Naughten test of whether or not the defendant knew right from wrong at the time of the crime, and concluded that there was no substantial evidence tending to show appellant was insane at the time of the crime. Cf. Griffin v. State, 96 So.2d 424, 425 (Fla. 3rd DCA 1957). The court therefore refused to appoint additional psychiatrists to examine appellant, ordered that the insanity defense be struck, but specifically ruled that no limitation would be placed on defendant’s right to produce evidence of absence of the requisite criminal intent.
Appellant then entered a plea of nolo contendere, reserving the right to appeal on the issue of the insanity defense. The judgment of guilt was affirmed without -written opinion. Williams v. State, 358 So.2d 1198 (Fla. DCA 1978). Appellant next filed a petition for federal habeas corpus relief. Based on the report and recommendation of the federal magistrate, the district court denied the petition.
Appellant does not contend that Florida’s use of the M'Naughten definition of insanity is unconstitutional; nor does he challenge the presumption of sanity nor the burden of proof on the issue that is applied in Florida. Rather he alleges that denial of the right to present the insanity defense violated his right to a fair trial by jury, guaranteed by the Sixth and Fourteenth Amendments, even though his attorney conceded at the pretrial hearing that he was not insane under the M’Naughten standard. Record, Exhibit B, Tab 6, page 8.
Federal habeas relief does not lie unless the petitioner is in custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254. The issue before us is whether the Constitution requires that a defendant be allowed to present an affirmative defense and instructions relating thereto to the jury even though the state court has ruled that there is no substantial evidence to support that defense and, indeed, defense counsel has conceded the defendant’s inability to meet the determinative legal standard. We answer the question in the negative.
Appellant’s contention is analogous to arguments raised in the context of asserting the affirmative defense of entrapment. This court has held that the defendant has the initial burden of producing substantial evidence to support the claim of entrapment before the defense properly is presented' to the jury. United States v. Reyes, 645 F.2d 285, 286-87 (5th Cir.1981); Sears v. United States, 343 F.2d 139, 143 (5th Cir.1965). The sufficiency of the evidence proffered to raise the defense of entrapment is a question of law for the court in the first instance; only if this threshold showing is made does a question of fact for the jury arise. United States v. Reyes, 645 F.2d at 287. No deprivation of the constitutional right to a fair trial or a trial by jury is raised by such a procedure. United States v. Humphrey, 670 F.2d 153,155 (11th Cir.1982), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982); United States v. Reyes, supra; United States v. Hill, 626 F.2d 1301, 1303-04 (5th Cir.1980); United States v. Wolffs, 594 F.2d 77, 80 (5th Cir.1979). Cf. United States v. DeLoach, 504 F.2d 185 (D.C.Cir.1974) (on direct appeal, if evidence is sufficient to support inferences underlying defendant’s non-affirmative defense, counsel must be allowed to make arguments to the jury); Strauss v. United States, 376 F.2d 416, 419 (5th Cir. 1967) (on direct appeal of federal conviction defendant is entitled to offer and have the jury instructed as to any theory of defense “for which there is any foundation in the evidence”).
Similarly here, under the law of Florida insanity is an affirmative defense. See Parkin v. State, 238 So.2d 817, 821-22 (Fla.1970). As with the entrapment defense, the burden of producing sufficient evidence to establish a jury question may constitutionally be placed on the defendant so long as the threshold level of proof is not of such a magnitude to deprive the defendant of due process protections. Although the state court may or may not have erred as a matter of state law in concluding that there was not sufficient evidence for the insanity defense to be presented to a jury, see Griffin v. State, supra, where appellant conceded that he could not satisfy the M’Naughten test, the federal constitutional threshold certainly was not crossed.
The judgment of the district court is AFFIRMED.
. Indeed other jurisdictions have explicitly ruled that use of the M’Naughten standard does not violate due process protections. See, e.g., United States ex rel. Phelan v. Brierley, 453 F.2d 73 (3d Cir.1971), judgment vacated on other grounds, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972); Ramer v. United States, 390 F.2d 564, 576 (9th Cir.1968), cert. denied, 393 U.S. 870, 89 S.Ct. 156, 21 L.Ed.2d 138 (1968). See also Leland v. Oregon, 343 U.S. 790, 800-01, 72 S.Ct. 1002, 1008-09, 96 L.Ed. 1302 (1952).
. This is a legal conclusion to which a presumption of correctness would not necessarily attach. Cf. Sumner v. Mata, 449 U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). Appellant has not shown by a preponderance of evidence however that the opposite legal conclusion should be reached by the federal habeas court.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this circuit adopted as precedent the decisions of the former Fifth Circuit decided prior to October 1, 1981.
. Appellant in effect argues that regardless of the defendant’s ability to meet the appropriate legal standard he has a constitutional right to submit the affirmative defense of insanity to the jury in the hope that the jury will arrive at a favorable, but concededly erroneous, result. The Sixth and Fourteenth Amendments do not extend so far.
Question: What is the specific issue in the case within the general category of "criminal - state offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other state crimes
R. state offense, but specific crime not ascertained
Answer: |
songer_appel1_7_2 | B | 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 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").
John C. LOAN, Appellant, v. SOUTHERN RAILWAY COMPANY, Appellee.
No. 9804.
United States Court of Appeals Fourth Circuit.
Argued April 8, 1965.
Decided April 20, 1965.
F. Byron Parker, Richmond, Va., for appellant.
H. Merrill Pasco, Richmond, Va. (Robert P. Buford, Jr., and Robert F. Brooks and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for appellee.
Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and STANLEY, District Judge.
PER CURIAM:
John C. Loan, a railroad fireman, brought an action against his employer, Southern Railway Co., under the Federal Employers’ Liability Act. He alleged in his complaint that the defendant negligently caused him to slip and fall by leaving metal rods on a step leading to the cab of an engine in which he was working. The case was heard by a jury and a verdict was rendered for the defendant.
The charge to the jury was adequate and there was sufficient evidence offered to support its verdict. The testimony of Loan’s ex-wife, even if privileged, was merely cumulative. Independent witnesses abundantly established the facts testified to by the wife. The error of receiving her testimony, if it was error, was not in our opinion sufficient in the entire context of the trial to warrant reversal.
Affirmed.
Question: 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)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_weightev | D | 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".
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).
Question: 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?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_constit | B | 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.
UNITED STATES of America, Plaintiff-Appellee, v. Donald Louis MONROE, Defendant-Appellant.
No. 88-3017.
United States Court of Appeals, Eleventh Circuit.
March 2, 1989.
Thomas S. Keith, Asst. Federal Public Defender, Pensacola, Fla., for defendant-appellant.
Randall J. Hensel, Asst. U.S. Atty., Pensacola, Fla., for plaintiff-appellee.
Before RONEY, Chief Judge, HATCHETT, Circuit Judge, and HENDERSON, Senior Circuit Judge.
HATCHETT, Circuit Judge.
In this appeal, we reject the appellant's contentions that the district court erred by admitting hearsay statements, finding the evidence sufficient to convict, and ordering the forfeiture of real property. We affirm.
FACTS
On July 14,1987, the Air Products Chemical Plant in Pace, Florida, received an order placed by Bill Luke for a fifty-five gallon drum of methylamine, a key ingredient in the manufacture of methamphetamine, from Bill’s Supply, Route 1, Seminole, Alabama. On July 17, 1987, Donald Louis Monroe and a person who identified himself as Earl Godwin arrived at the plant in a van to pick up the order. Monroe and Godwin were required to fill out a visitor’s pass. Monroe signed his name as “D. Martin” and indicated that he represented Bill’s Supply.
Godwin drove the van to the loading dock where an Escambia County Sheriffs Department deputy, posing as an employee of Air Products, assisted Monroe and Godwin in loading the fifty-five gallon drum of methylamine into the van. Monroe signed the bill of lading “D. Martin” which reflected the order of the fifty-five gallon drum of methylamine by Bill Luke of Bill’s Supply, Route 1, Seminole, Alabama.
Law enforcement officers on the ground as well as in a helicopter observed the van travel to Monroe’s residence on Bankhead Drive in Pensacola, Florida, where Monroe and Godwin unloaded the drum and placed it in a Quonset hut on Monroe’s property. The total property located at 5225 Bank-head Drive encompasses approximately ten to eleven acres and is situated on a sandy drive where the Quonset hut, a mobile home, storage sheds, and a house are located. Also on the property is a large clay pit area containing abandoned cars, equipment, and other containers. Monroe also kept equipment for his machinery and demolition business on the property.
Based on the July 17, 1987 surveillance and other information, law enforcement officers sought and obtained a search warrant for Monroe’s residence and the surrounding property at 5225 Bankhead Drive. On July 18, 1987, officers of the Drug Enforcement Administration (DEA) and the Escambia County Sheriff’s Department executed the search warrant and seized numerous items.
The chemical apparatus, including flasks, condensers, and tubing were found in the Quonset hut laboratory set up. In a metal storage shed behind Monroe’s house, the officers found a Western Union money transfer application dated February 17, 1987, sent from Donald Moore, 5225 Bank-head Drive, Pensacola, Florida, and made payable to William Luke.
Officers found two keys in the kitchen of Monroe’s house which fit the padlock securing the Quonset hut. Once inside the Quonset hut, officers discovered, among other things, a make-shift laboratory set up, that is, two three-neck round bottom flasks, two cold water condensers with tubing, a drying tube, a hot plate, fans for ventilation, and a tank of nitrogen with tubing attached. A DEA chemist described this as a “reflux set up.” Officers found various chemicals, including the fifty-five gallon drum of methylamine obtained from Air Products the day before, now with a valve attached to gain access to its contents, and a canister of monomethylamine in the Quonset hut.
Officers also found several empty shipping boxes in the Quonset hut. One box had an address label indicating it had been shipped by the D.F. Goldsmith Chemical and Metal Corporation to William Luke Decorating Company, 2103 West Gardenia Circle, North Fort Myers, Florida, with writing on the box indicating it contained mercuric chloride at the time of shipping. Another empty box had an address label from Chemical Dynamics Corporation, South Plainfield, New Jersey, addressed to Bill’s Pools, Inc., 2103 West Gardenia Circle, North Fort Myers, Florida. Officers found Monroe’s fingerprints on the fifty-five gallon drum of methylamine, the two flasks in the laboratory set up, a box of acetaldehyde found in the house, and the box in which the forty triangular packets of a brown powdery substance were found.
PROCEDURAL HISTORY
On September 17, 1987, the grand jury charged Monroe in a superseding indictment with conspiring to manufacture methamphetamine, in violation of 21 U.S.C. § 846 (Count I); attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846 (Count II); possessing cocaine in violation of 21 U.S.C. § 844 (Count III); and using or intending to use certain real property in a manner to commit or to facilitate the commission of the alleged violations, in violation of 21 U.S.C. § 853(a) (Count IV). In Count IV, the government sought the forfeiture of Monroe’s real property.
During Monroe’s jury trial, he raised hearsay objections to testimony of witnesses Steven Jernigan and Mary DeMoss. The court overruled the objections. At the conclusion of the government’s case, Monroe moved for a judgment of acquittal on all counts. The district court denied this motion. Monroe’s defense consisted of the testimony of the government’s expert chemist who had testified during the government’s case. The government did not present any rebuttal evidence.
The jury returned a verdict finding Monroe guilty as charged in Counts I and II, not guilty on Count III, and the property specified in Count IV subject to forfeiture. On December 30, 1987, the district court sentenced Monroe to ten years imprisonment under the provisions of 18 U.S.C. § 4205(b)(2) to run concurrently on Counts I and II. The district court also entered an order forfeiting the real property to the government. Monroe objected to the order of forfeiture on the grounds that the forfeiture, in addition to his sentence of imprisonment, would constitute cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. The district court rejected this contention.
CONTENTIONS
Monroe contends that the district court erred in admitting testimony from Steven Jernigan and Mary DeMoss that Bill Luke had made statements to them or in their presence which implicated Monroe and Luke in a plan to make methamphetamine. Monroe argues that Jernigan and DeMoss were not coconspirators, and that Luke was not trying to further any conspiratorial aims in making these statements; thus, the district court erred in ruling that Luke’s statements qualified for admission under the coconspirator exception to the hearsay rule.
The government counters that the district court did not err in admitting this testimony. The government argues that the district court correctly ruled that Luke’s statements qualified for admission under the coconspirator exception to the hearsay rule. The government asserts that Luke’s statements to Jernigan, who was not a coconspirator at the time, were “in furtherance of the conspiracy” because Jer-nigan did join the conspiracy later. The government argues that the testimony of Mary DeMoss regarding the statements she overheard Luke make with respect to Monroe’s involvement in the conspiracy were likewise in furtherance of the conspiracy because they were meant to allay De-Moss’s suspicions.
Monroe also contends that the district court erred in admitting testimony by Steven Jernigan regarding Cindy Luke’s statements which implicated Monroe and Bill Luke in a plan to make methamphetamine. Monroe argues that Cindy Luke’s statements were neither admissible under the coconspirator exception nor the “against penal interest” exception to the hearsay rule.
The government argues that the trial court correctly allowed the testimony of Steven Jernigan regarding these statements because the coconspirator exception to the hearsay rule allows statements which further a conspiracy. The government contends that the effect of these statements on Jernigan, in conjunction with Bill Luke’s subsequent revelations followed shortly thereafter by Jernigan’s involvement in the conspiracy, effectively furthered the conspiracy.
Next, Monroe contends that sufficient evidence did not exist to sustain his convictions on Counts I and II and the finding of forfeiture in Count IV. Monroe argues that the government’s evidence, while showing suspicious circumstances, is too speculative to constitute proof beyond a reasonable doubt. The government counters that sufficient evidence existed to sustain Monroe’s convictions on Count I and II and the jury finding that the property described in Count IV was subject to forfeiture.
Monroe contends that an order of criminal forfeiture is a form of punishment subject to scrutiny under the eighth amendment’s proscription against cruel and unusual punishment. Monroe argues that the forfeiture of his property on which his home stands, in addition to his sentence of imprisonment, violates the eighth amendment because the total sentence is disproportionate to the offenses for which he has been convicted. The government counters that the forfeiture of Monroe’s real property did not constitute cruel and unusual punishment because the trial court correctly considered all the factors surrounding the case and Monroe’s involvement therein, and correctly concluded that forfeiture of his property was not so disproportionate to his crimes as to constitute cruel and unusual punishment in violation of the eighth amendment.
ISSUES
Monroe raises the following issues on appeal:
(1) whether the district court erred in admitting Steven Jernigan and Mary De-moss’s testimony about the Bill Luke statements;
(2) whether the district court erred in allowing Steven Jernigan’s testimony regarding Cindy Luke’s statements;
(3) whether sufficient evidence existed to sustain the convictions on Counts I and II and to support the finding in Count IV that his real property was subject to forfeiture; and
(4) whether the forfeiture of the real property, in addition to the ten-year sentence of imprisonment, constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution.
DISCUSSION
I. The Bill Luke Statements
Monroe contends that the trial court erred in admitting the Steven Jernigan and Mary DeMoss’s testimony regarding certain statements Bill Luke made to them. The government counters that the trial court did not err in admitting this testimony, because the statements were made “in furtherance of the conspiracy.”
Fed.R.Evid. 801(d)(2)(E) states:
(d) Statements which are not hearsay. A statement is not a hearsay if—
(2) Admission by party-opponent. The statement is offered against a party and is
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Monroe contends that the record does not support a finding that these statements were made “in furtherance” of any conspiracy between Luke and Monroe; thus, they do not come within the coeonspirator exception to the hearsay rule. Monroe argues that Jernigan’s testimony did not indicate that Luke attempted to get Jernigan to join the conspiracy or to act in any way to further it. Although Jernigan did subsequently assist Luke in ordering chemicals, Monroe contends that no evidence exists to indicate that Luke attempted to enlist Jer-nigan’s aid at the time he initially told him about the plan to make methamphetamine.
Monroe contends that no factual basis exists for finding that what DeMoss overheard Luke say about him was a statement in furtherance of a conspiracy. Monroe notes that DeMoss was not asked to join a conspiracy or act in any way to further a conspiracy. Further, Monroe argues that the testimony of Jernigan and DeMoss did not indicate that Luke’s statements about Monroe were meant to allay any suspicions or fears that they may have had so as to further the objectives of the conspiracy. Monroe contends that the statements at issue were only casual admissions of culpability to people Luke had individually decided to trust.
The government concedes that neither Jernigan nor DeMoss were members of the conspiracy at the time Bill Luke made the statements. The government contends, however, that statements made by a cocon-spirator to a non-member of the conspiracy are admissible by meeting the “in furtherance of a conspiracy” standard when found to advance the objectives of the conspiracy. The government argues that Jernigan’s conversation with Bill Luke did lead to his becoming an active participant in the conspiracy between Luke and Monroe.
Whether a statement is “in furtherance of the conspiracy” is determined on the particular facts of each case. That determination is a finding of fact which may be overturned only if clearly erroneous. United States v. Posner, 764 F.2d 1535, 1537 (11th Cir.1985). The in furtherance of the conspiracy standard must not be applied too strictly, “lest we defeat the purpose of the exception.” United States v. James, 510 F.2d 546, 549 (5th Cir.), cert. denied sub nom., Vasquez v. United States, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975); see also United States v. Ayarza-Garcia, 819 F.2d 1043, 1050 (11th Cir.), cert. denied, — U.S.-, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987). On review, we apply a liberal standard in determining whether a statement is made in furtherance of a conspiracy. United States v. Santiago, 837 F.2d 1545, 1549 (11th Cir.1988). Statements made by one conspirator to a fellow conspirator identifying yet another conspirator for the purpose of affecting future dealings between the parties are held to be in furtherance of a conspiracy. United States v. Caraza, 843 F.2d 432, 436 (11th Cir.1988); United States v. Patton, 594 F.2d 444, 447 (5th Cir.1979). Also, when a conspirator provides information to his coconspirators necessary to keep them abreast of the conspiracy’s current status, such statements are properly admitted as coconspirator declarations. United States v. Pool, 660 F.2d 547, 562 (5th Cir. Unit B 1981). Conversations made by conspirators to prospective coconspirators for membership purposes are also considered acts in furtherance of the conspiracy. United States v. Shoffner, 826 F.2d 619, 628 (7th Cir.), cert. denied sub nom. Strange v. United States, — U.S. -, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987). Statements can be made in furtherance of a conspiracy if meant to allay suspicions or fears of others. Posner at 1538.
Based on this authority and a close examination of the contested testimony, we find that the district court did not err in admitting the testimony of Steven Jernigan and Mary DeMoss regarding the Bill Luke statements. These statements are admissible under the coconspirator exception to the hearsay rule because the statements were made in furtherance of the conspiracy.
II. The Cindy Luke Statements
Monroe contends that the trial court erred in allowing the testimony of Steven Jernigan regarding Cindy Luke’s statements. The government counters that the trial court correctly allowed this testimony.
Prior to trial, Cindy Luke died. Monroe contends that Jernigan’s testimony about Cindy’s statements was inadmissible under both the coconspirator and “against penal interest” exceptions to the hearsay rule. Monroe argues that these statements are not admissible under the coconspirator exception because they were not made in furtherance of the conspiracy. Monroe asserts that these statements are also inadmissible under the “against penal interest” exception of Fed.R.Evid. 804(b)(3) which provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interests, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
See United States v. Alvarez, 584 F.2d 694, 699-702 (5th Cir.1978); and United States v. Harrell, 788 F.2d 1524, 1526-27 (11th Cir.1986). Monroe contends that this exception is inapplicable because Cindy did not implicate herself in the plan to make methamphetamine. She only implicated her husband, Bill Luke.
The government concedes that Jerni-gan’s testimony regarding Cindy Luke’s statements did not qualify as statements against her penal interests. The government, however, argues that a reasonable inference can be drawn that Cindy Luke’s comments to her brother were more than informative. Considered in light of her brother’s subsequent conduct, the government argues that Cindy’s statements may be construed as being in furtherance of the conspiracy because she expressed her knowledge of and her tacit approval of her husband’s activities in which her brother subsequently actively assisted. The government contends that Cindy Luke’s knowledge and apparent approval of Bill Luke’s and Don Monroe’s activities could be seen as statements made in furtherance of the conspiracy.
Whether a statement is in furtherance of the conspiracy must be determined on the particular facts of each case, with that determination overturned only if clearly erroneous. Posner at 1537. See Section I. We hold that the district court did not err in admitting the testimony of Steve Jerni-gan regarding Cindy Luke’s statements because the statements may be construed to have induced Jernigan to join the conspiracy.
III. Sufficiency of the Evidence
Monroe contends that the evidence at trial was insufficient to sustain his convictions on Counts I and II and the finding in Count IV that his property is subject to forfeiture. In addition to the evidence found at Monroe’s residence, and the testimony of Jernigan and DeMoss, a handwriting expert testified that Monroe had written “Merck index” reference numbers on the front page of the written formula for making methamphetamine. Monroe also wrote the words on the back of the last page; however, the handwriting expert concluded that Monroe had not written the actual formula. Additionally, the expert concluded that Monroe had written the list of chemical supplies with corresponding reference numbers and prices consistent with VWR Scientific Company invoices and packing receipts found in his master bedroom.
A DEA chemist assisted the agents in the search of the Quonset hut and the examination of the chemical apparatus set up inside. The chemist performed an analysis of the liquid substances collected from the flasks and jars found in the Quonset hut and determined that none were methamphetamine or any other controlled substance. The chemist also performed an analysis of the brown powdery substance contained in the forty triangular shaped packets and determined that those likewise did not contain methamphetamine or any controlled substance. The brown powdery substance did contain, however, among other things, inositol, which is a common cutting agent for drugs. The chemist testified that the substance in the packets, the powdery substance on the grinder found in the residence, and the liquids in the flasks in the Quonset hut all contained the identical non-controlled substance N,N dibenzyl me-thylamine. The chemist also testified that the written formula found in the house was a formula for making methamphetamine, but that an essential ingredient utilized in the formula, P2P, was not found on Monroe’s property. The chemist opined that considering the laboratory set up as he found it in the Quonset hut, the chemicals found on the property, and his analysis of the various liquids and solids, Monroe could not have been trying to make methamphetamine by the written formula found inside his residence.
The various numbers written on the front page of the formula, identified as being Monroe’s handwriting, corresponded to certain reference numbers in the “Merck index.” The reference numbers written by Monroe on the formula included those for the following chemicals: methylamine, methanol, mercuric chloride, ethyl ether, sodium hydroxide, and methamphetamine.
The chemist opined that Monroe could have been trying to make methamphetamine by what is known as the “Chewbak-ka Darth” method. This method requires mixing various chemicals in two separate reactions and then combining the end products of these two reactions to make methamphetamine. Monroe had all the essential ingredients for making methamphetamine by this method except for magnesium metal turnings. Without the magnesium metal turnings, the first reaction could not take place and consequently, the final reaction to methamphetamine could not take place. Pieces of aluminum foil found in one of the flasks could not be used as a substitute for magnesium metal turnings because of their different properties. The chemist further testified that the substance found in the flasks and in the forty packets —N,N dibenzyl methylamine, or N benzyl methylamine — could have been produced by bubbling methylamine into a liquid containing Alpha-chlorotoluene. On cross-examination, the chemist acknowledged that Monroe could have been making something other than methamphetamine.
In determining challenges to the sufficiency of evidence in a criminal case, we must determine whether the evidence, when viewed in the light most favorable to the government, and accepting reasonable inferences an,d credibility choices by the fact-finder, would enable the trier of fact to find the defendant guilty beyond a reasonable doubt. United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied sub nom. Gonzalez v. United States, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984). To support a conviction for a conspiracy, the government must prove that two or more persons agreed to commit a crime, that the defendant knew of the agreement, and that he or she voluntarily became a part of the conspiracy. United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir.), cert. denied, — U.S.-, 108 S.Ct. 2003, 100 L.Ed.2d 234 and cert. denied sub nom. Masquera-Herrera v. United States, — U.S.-, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988).
Monroe concedes that the government’s evidence, i.e., the items seized at his property, the laboratory set up, the interactions with the Lukes, and the testimony of the DEA chemist suggests that he conspired to and attempted to manufacture methamphetamine. Monroe, however, contends that suspicious circumstances do not equal proof beyond a reasonable doubt. Monroe emphasizes that no methamphetamine was found on his property and that he did not have all the essential ingredients to make it. Although he possessed a formula for making methamphetamine, Monroe argues that he could not have been using the formula to try to make methamphetamine because he lacked several essential ingredients.
Monroe contends that although the DEA chemist explained how he may have been trying to make methamphetamine by another method, no formula for this method existed and that the high unlikelihood of success without a formula, the lack of an essential ingredient, and the inconsistency between this method and how the substance in the flasks and packets could have been made, defeats the government’s theory. Monroe argues that considering all the admissible evidence in the light most favorable to the government, no reasonable jury could find guilt beyond a reasonable doubt on Counts I and II, and that the finding of forfeiture on Count IV must necessarily fall.
The test for determining whether a defendant may be convicted of an attempt was established in United States v. Mandujano, 499 F.2d 370 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975).
First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting.... Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.
Mandujano at 376.
The government contends that all the evidence found on defendant’s property, even excluding the testimony of Jernigan and DeMoss, is sufficient to establish Monroe’s intent to conspire with others to manufacture methamphetamine and that his acts were not consistent with a legitimate explanation of his conduct. Coupling the evidence with the statements by Jernigan and DeMoss, the government argues that Monroe’s intent to conspire and attempt to manufacture methamphetamine is clearly established. See United States v. Cusak, 827 F.2d 696, 698 (11th Cir.1987).
We hold that the evidence, when viewed in the light most favorable to the government, enabled the trier of fact to find Monroe guilty beyond a reasonable doubt. Sufficient evidence existed to convict Monroe on Counts I and II as charged.
IV. Forfeiture
Monroe contends that the forfeiture of his property in addition to his ten-year sentence of imprisonment constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. Monroe cites two Ninth Circuit cases to argue that an order of criminal forfeiture is a form of punishment which must be scrutinized under the eighth amendment. See United States v. Littlefield, 821 F.2d 1365 (9th Cir.1987) (remand to district court to determine whether entire parcel of land, or only portion used for drug cultivation should be subject to forfeiture under 21 U.S.C. § 853) and United States v. Busher, 817 F.2d 1409 (9th Cir.1987) (remand to district court to determine whether forfeiture of entire interest in several properties under 18 U.S.C. § 1963 was so grossly disproportionate to the offense committed as to violate the eighth amendment). In Busher, the Ninth Circuit held that an order of forfeiture must be examined under the test enunciated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (the eighth amendment prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed):
In considering the harm caused by defendant’s conduct, it is certainly appropriate to take into account its magnitude: the dollar volume of the loss caused, whether physical harm to persons was inflicted, threatened or risked, or whether the crime has severe collateral consequences, e.g., drug addiction_ The eighth amendment prohibits only those forfeitures that, in light of all relevant circumstances, are grossly disproportionate to the offense committed.
Busher at 1415 (emphasis added) (citations and footnotes omitted). In Littlefield, the Ninth Circuit stated:
Before entering an order of forfeiture under section 853, the district court must therefore determine, consistent with Busher, that forfeiture of the entire property on which drugs were cultivated together with other punishments imposed is not so disproportionate to the offense committed as to violate the Constitution. In making that determination, the court is not limited to the factors specifically mentioned in Busher, but may take into account other relevant considerations, including the value of the illegal drugs cultivated on the property, and the nexus between the portion of the property actually used to grow the marijuana plants and the rest of the land.
Littlefield at 1368 (citations omitted).
Citing both Busker and Littlefield, Monroe contends that the forfeiture of his entire property in addition to his ten-year sentence of imprisonment violates the eighth amendment. Monroe’s property consisted of his home and ten to eleven acres of land. The market value of the property was estimated to be $25,000 to $30,000. Monroe argues that we should consider the fact that no methamphetamine was actually produced on his property, and that this property is his only significant asset.
The government contends that the forfeiture of Monroe’s real property did not constitute cruel and unusual punishment in violation of the eighth amendment. The district court rejected Monroe’s argument that forfeiture of the entire property was grossly disproportionate and noted that the maximum penalties for the offenses involved in Counts I and II were each imprisonment for up to 20 years and a $1 million fine, and that 10 year concurrent sentences and the forfeiture of property worth up to $30,000 were not grossly disproportionate punishments.
Although the Ninth Circuit has recognized criminal forfeiture as a form of punishment subject to the eighth amendment’s prohibition against cruel and unusual punishment, we decline to address this issue of first impression in this circuit (whether the eighth amendment applies to forfeitures). We decline because the sentence of 10 years concurrent on Counts I and II and the forfeiture of property worth up to $30,-000 would not be disproportionate to Monroe’s crimes and would not implicate a constitutional violation nor require the application of the three-pronged Solem criteria. Consequently, we await a better factual setting in which to determine the eighth amendment issue.
CONCLUSION
We hold that the district court did not err in admitting the testimony of Steven Jerni-gan and Mary DeMoss regarding Bill Luke’s statements under the coconspirator exception to the hearsay rule, nor in admitting the testimony of Steven Jernigan regarding Cindy Luke’s statements.
We hold that sufficient evidence existed to convict Monroe on Counts I and II. Finally, we affirm the forfeiture because no eighth amendment violation would exist under any existing analysis or any standard we would create.
AFFIRMED
. Items seized from Monroe’s house included:
(1) a bottle of inositol, which is a common "cutting agent” for methamphetamine and other drugs;
(2) a black grinder with powder residue on it;
(3) eight full boxes containing the chemical acetaldehyde;
(4) a sandwich bag box containing one clear plastic sandwich bag which contained forty small triangular packets of a brown powder substance;
(5) a Kodak laboratory research and products catalog and a VWR Scientific Catalog, both reference books for selling chemicals and laboratory equipment;
(6) the "Merck Index,” a dictionary encyclopedia of chemical compounds containing a list of almost all known chemicals and their physical properties;
(7) an address book and a rolodex, each containing, among other things, the name Bill Luke with a telephone number of (813) 543-5148;
(8) a county occupational license issued by Escambia County to West Florida Demolition, Donald Moore, 5225 Bankhead Drive, Pensacola, Florida;
(9) numerous packing lists and invoices from VWR Scientific Company and Eastman Kodak Company reflecting the shipment of various chemicals and laboratory equipment to Monroe’s address under the names of Don Martin, Don Moore, or Don Morton;
(10) an Air Products sticker attached to a material safety data sheet for methylamine, the sticker reflecting a weight of seven pounds, with the methylamine safety data sheet inscribed with the handwritten notation of "Bill’s Supply, Residential Division, Route 1, Box 129, Seminole, Alabama”;
(11) a cashier’s check customer receipt payable to the order of Air Products from Bill’s Supply in the amount of $130.41, dated July 6, 1987;
(12) a photostatic copy of a formula for making methamphetamine with some numbers written in ink on the front page and writing on the back of the last page;
(13) the top flap of a cardboard box with an address label showing that it was from Air Products, the Escambia plant, addressed to "Sharpshooter’s Gun Sales, 2103 East Gardenia Circle, North Fort Myers, Florida, Attention Cynthia Luke,” reading the contents to be methylamine aqueous solution, flammable liquid; and
(14) a legal size sheet of paper with numerous handwritten entries by Monroe for chemical apparatus including the description, reference number, and price corresponding to the same information on VWR Scientific Company invoices and packing receipts found in Monroe's master bedroom.
. At trial, Jernigan testified:
THE COURT: Now, I’m getting confused because he’s already testified that Luke said something directly to him about Donald Monroe. Did Luke say anything to you directly about Donald Monroe getting involved?
[JERNIGAN]: Yes, he did tell me that him and Bill were in — Bill and Don was going to get together and use his place to make these drugs.
[COUNSEL]: What was it, Did he make statements to you directly or did he not?
A. He made several statements to me directly but I can’t recall all the statements.
Q. Well, I understand you may not recall word for word but I need to know what, in general, he said to you—
A. In general, he said that him and Don was trying to get together and make crystal meth. They was going to try to get these drugs. He was going to ship the drugs up to him, get him the drugs any way he could to make the drug with.
Q. Now, when he was saying this to you, was he trying to enlist your help in any way? Was he telling you, ‘This is what we're doing; this is what I want you to do’?
A. No. He just told me what they were doing.
Q. He was just telling you what he was doing with Mr. Monroe?
A. Right. Correct.
Q. For your information?
A. Yes. Correct.
Q. All right. I asked you — The last question,
I think, before we went to the Bench was when if ever it came up about any conversations you had with Bill Luke about Donald Monroe being involved in this thing, making methamphetamine?
A. Uh-huh (affirmative).
Q. Can you tell me if that ever occurred?
A. Well, they — he had told me before that he was worried about — he didn’t want to make the stuff there itself because he didn’t want to make it around the kids and this and that and he was scared. So he knew that Don Monroe had a big place up here, a lot of land that was kind of secluded off to itself. So he said he was going to try to get Don involved in it and help him out and have Don make it up here for him.
Q. Okay. Now, did you ever assist your brother-in-law, Bill Luke, in trying to get these chemicals to make this methamphetamine?
A. Yes, I did.
DeMoss testified:
Q. Were you ever at the house and answered the phone when it was Don Monroe and Bill agreed to talk to him?
A. Yes, sir.
Q. Did you ever overhear any conversation they had?
A. I heard bits and pieces.
Q. Could you tell what they were talking about from what you heard?
A. Drugs.
Q. What type?
A. Chemicals.
. At trial, Jernigan, Cindy’s brother, testified:
Q. Did you ever have any conversation with your sister regarding the manufacture of methamphetamine?
A. Yes. She approached me one day and said Bill had come up with a formula from somewhere for the making of crystal meth.
Q. Who was going to be making it?
A. Him and Don Monroe was supposed to get together. Don Monroe was supposed to make it at his place.
Q. Slow down. I’m referring first to the statement Cindy gave — when Cindy told you about it.
A. She said Bill was going to be making it.
Q. Where at?
A. They didn’t say where at.
Q. They didn’t know?
THE COURT: She just said they were — She wasn’t helping?
THE WITNESS: No.
Q. Did Cindy tell you Bill had found a formula?
A. Yes, and was going to be making crystal meth, the methamphetamine.
Q. Did she say thing about profit or money?
A. No.
. We have limited Solem v. Helm to the extremely narrow issue of "whether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony." Seritt v. State of Alabama, 731 F.2d 728, 732 (11th Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 433 (1984) (emphasis in original).
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer: |
songer_counsel1 | D | 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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. Ronald Thomas BOHLE, Defendant-Appellant.
No. 18604.
United States Court of Appeals, Seventh Circuit.
June 2, 1971.
Cummings, Circuit Judge, concurred with opinion.
Enoch, Senior Circuit Judge, dissented with opinion.
James H. Pankow, Joseph T. Helling, Philip C. Potts, South Bend, Ind., for defendant-appellant.
William C. Lee, U. S. Atty., Fort Wayne, Ind., Richard L. Kieser, Asst. U. S. Atty., South Bend, Ind., for plaintiff-appellee.
Before ENOCH, Senior Circuit Judge, CUMMINGS and PELL, Circuit Judges.
PELL, Circuit Judge.
On January 9, 1969, the destined course of Eastern Airlines Flight No. 831 originating at Miami, Florida was diverted from the Bahamas to Cuba by a procedure variously known as hijacking or skyjacking and sometimes more grandiloquently referred to as air piracy.
Ronald Thomas Bohle was indicted for the act pursuant to 49 U.S.C. §§ 1472 (i) and 1473(a) in the Northern District of Indiana where he stood trial before a jury, resulting in his conviction and sentencing of twenty-five years confinement.
We fail to find in the record any serious, or even token, disputation that Bohle did not board the plane in Miami and after the plane was aloft and over open water that he did not with the actual use of a switchblade knife and the threatened use of concealed nitroglycerin and a gun persuade a stewardess to take appropriate steps to divert the course of the plane to Cuba.
While the possibility of an insanity defense was alluded to at a hearing on a motion for bond reduction in December 1969, it was not until the second day of the trial on April 24, 1970, after the Government had concluded its ease-in-ehief, that counsel indicated to the court that insanity was an issue in the case.
Most of the contentions raised on this appeal concern alleged errors occurring during the course of the seven day trial and insofar as pertinent thereto, evi-dentiary aspects of this case will be set forth in connection with the specific contentions of Bohle for reversal. There are, however, two threshold contentions of error.
VENUE CONTENTION
Bohle’s first contention is that venue was improper in the district court for the Northern District of Indiana, under the provisions of 49 U.S.C. § 1473(a). That section, insofar as here relevant, provides that where, as here, the offense takes place outside any district, “the trial shall be in the district where the offender * * * is arrested or is first brought. If such offender * * * [is] not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender * *
A complaint charging Bohle with aircraft piracy was filed with the United States Commissioner in the Northern District of Indiana on June 27, 1969. Bohle was transported to the United States border by Canadian officials on November 2, 1969, entering the United States in the Northern District of New York. He was there arrested pursuant to a warrant issued by the United States Commissioner in Indiana. Following his removal to the Northern District of Indiana, an indictment was returned in that district on December 15, 1969.
Bohle asserts that venue was lacking in the Northern District of Indiana because he was arrested in the Northern District of New York before the indictment was returned in Indiana. The Government argues in part that the purpose of the venue provision is satisfied by the filing of the complaint in Indiana before Bohle was “arrested or brought into any district. * * * ” By this filing, it is contended, the first step was taken leading to the return of an indictment and the prosecution was thus begun in the Northern District of Indiana before Bohle’s return to this country.
We need not reach the merits of this phase of the Government’s position since even if defendant is correct in asserting that venue was otherwise improper, he has waived any objection he might have had. Venue was challenged for the first time in a motion for acquittal filed at the close of the Government’s case. While such a motion is the proper vehicle for asserting objections to venue in some cases, United States v. Jones, 174 F.2d 746 (7th Cir. 1949); 1 Wright, Federal Practice and Procedure: Criminal § 306, p. 600, this is not one of those cases.
A challenge to venue in a motion for acquittal is timely only where there is a proper allegation of venue which is not sustained by the evidence. 1 Wright, Federal Practice and Procedure: Criminal § 306, p. 600 and cases cited at n. 9 therein. In such a case the defendant has no notice of a defect of venue until the Government rests without proving what it has alleged. Until he has such notice, there can be no waiver. United States v. Gross, 276 F.2d 816, 819 (2d Cir. 1960), cert. den. 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525.
However, where the fact of improper venue is apparent on the face of the indictment, it has been uniformly held that the objection is waived if not presented before the close of the Government’s case and perhaps if not presented before commencement of trial. 1 Wright, Federal Practice and Procedure: Criminal § 306, pp. 305-06 and cases cited at nn. 7 & 8 therein.
Bohle attempts to take this case out of this latter rule by arguing that the indictment alleged that his last place of residence was in Michigan City, Indiana, within the Northern District. He maintains that the indictment thus charged proper venue and the defect appeared only when the Government’s proof failed to sustain venue in the Northern District of Indiana.
This argument distorts the idea of an allegation of proper venue. An indictment alleges proper venue when it alleges facts which, if proven, would sustain venue. Here the indictment alleged facts which, even if proven, would not sustain venue. The defendant was on notice that even if the Government proved all it alleged, proper venue would not be shown.
Here the indictment alleged that Bohle’s last place of residence was within the Northern District of Indiana and the Government proved that allegation at trial. However, such allegation and proof were insufficient to establish venue in the Northern District of Indiana unless the Government further alleged and proved that the indictment was returned prior to Bohle’s return to the United States. That crucial allegation was absent from the indictment and thus the allegation of venue was patently improper. Bohle was chargeable with knowledge of this possible defect in venue which was apparent on the face of the indictment prior to trial. Any objection which he might have raised to it was waived by his failure to assert it until the close of the Government’s case.
Specifically, Bohle filed a motion to dismiss on December 23, 1969, prior to his arraignment two months later. In this motion the indictment was challenged on a number of grounds but nothing was even intimated about a venue question although all of the facts pertaining thereto had to have been known at that time. Rule 12(b) (2) of the Federal Rules of Criminal Procedure requires that any such motion “shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof * * However, the court for cause shown may grant relief from the waiver.
No effort to show cause was made and indeed it appears that Bohle’s interest was best served by a trial in the Northern District of Indiana.
No doubt if the point had been raised on the motion to dismiss and there had been a ruling favorable to Bohle, his counsel might very well on the facts of this particular case had urgent reasons for then waiving. Neither Bohle nor the alleged offense had any connection with the Northern District of New York. That was merely the fortuitous place of his return to this country. Bohle had lived in Indiana all of his life. He left Indiana only 24 hours before the commission of the alleged offense. All of his lay witnesses and two of his medical witnesses lived in Indiana in close proximity to the court where he was tried. So far as we can determine, none of his witnesses resided closer to the court in New York than to the court in Indiana.
We further note that Bohle first appeared before the commissioner in New York state on the morning of November 2, 1969, at which time he was advised of the charges against him and of his right to counsel including the appointment thereof. Pursuant to his request for counsel, an attorney was appointed who represented him at this preliminary stage. On November 3, 1969, after conferring with the attorney, Bohle appeared before the commissioner and executed a waiver of removal hearing form. Inadvertently, and apparently through a scrivener’s error, the commissioner papers were made out for removal to the Southern District of Florida where no charge or complaint was pending against Bohle. The only complaint and warrant issued for him were from the Northern District of Indiana. That this was a scrivener’s error is evident from the order subsequently issued on November 10, 1969 by the United States District Court for the Northern District of New York commanding the marshal of that district to remove Bohle to the Northern District of Indiana, “upon the waiver of a hearing and consent to removal to said District by the said Ronald Thomas Bohle. * * * ”
As stated in Chandler v. United States, 171 F.2d 921, 933 (1st Cir. 1948), cert. den. 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949), “It would indeed be unfortunate if we were compelled to hold, on such a highly technical ground, that this elaborate trial has gone for naught.”
We find the venue contention of Bohle, asserting improper venue rather than lack of venue, to be without merit.
CONSTITUTIONALITY OF STATUTE
A section of the statute pursuant to which Bohle was indicted defines the offense involved as “any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft in flight in air commerce.” 49 U.S.C. § 1472(i) (2). Bohle’s second threshold contention is a challenge to the constitutionality of this section.
Essentially the argument is that Congress must have intended something more than general criminal intent when it required the seizure of an aircraft to be “with wrongful intent” to constitute a crime since general intent is required even if not mentioned. Therefore, Congress, it is asserted, must have intended to require some specific intent as an element of the crime but the word “wrongful” is too vague to describe any specific intent and therefore the statute is unconstitutionally vague. From the cases cited by defendant, it would seem that he believes Congress may have intended to require the specific intent to deprive permanently the owner of his property as is often required in robbery statutes, whether or not specifically set forth.
We are not persuaded by defendant’s pedantic reasoning that Congress intended to make the hijacking of an aircraft a crime only if the hijacker intended to deprive permanently the owner of it. We agree with the Government and the district court that the wrongful intent referred to in the statute is no more than the general criminal intent present when one seizes or exercises control of an aircraft without having any legal right to do so.
Bohle’s remaining contentions concern alleged errors occurring during the trial. One of these, being claimed error in the giving and refusal to give certain instructions dealing with the intent required and with possible lesser included offenses not requiring some specific intent, necessarily falls with the rejection of Bohle’s theory that the statute under which he was indicted requires more than a general criminal intent.
The thrust of the remaining contentions is that allegedly erroneous rulings by the district court severely prejudiced the insanity defense.
LIMITATION ON ADMISSION OF EVIDENCE
One ruling related to defendant’s Exhibit A consisting of medical records covering Bohle’s hospitalization and treatment while in the Navy. The district court admitted these records but advised the jury that they were not admitted to prove the truth of the matters stated but merely because they formed part of the basis for expert opinion on Bohle’s mental condition in 1969.
The Government points out that among the documents in Exhibit A are certain statements by Bohle’s mother to a social worker relating to Bohle’s childhood. It defends the ruling of the trial court by asserting, “This sort of material is compounded, unreliable, damaging hearsay of the most obvious sort. That such hearsay is not permitted is so basic to the rules of evidence as to require no citation of authority.” We cannot agree that the matter is so simple.
Section 1732(a), Title 28, United States Code, provides:
“In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.
“All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.
“The term ‘business,’ as used in this section, includes business, profession, occupation, and calling of every kind.”
This statute was intended to permit the admission of business records which carry “a circumstantial guarantee of trustworthiness. The test is one of reliability.” United States v. Hickey, 360 F.2d 127, 143 (7th Cir. 1966), cert. den. 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed. 2d 210. It clearly applies in criminal as well as civil proceedings. Hickey, supra; United States v. Ware, 247 F.2d 698, 699-700 (7th Cir. 1957); and Wheeler v. United States, 93 U.S.App. D.C. 159, 211 F.2d 19, 23 (1953), cert. den. 347 U.S. 1019, 74 S.Ct. 876, 98 L. Ed. 1140 (1954). See also Fed.R.Crim. P., Rule 26, 18 U.S.C. Hospitals are included in the statutory phrase “any business.” Wheeler, supra; and England v. United States, 174 F.2d 466, 468-469 (5th Cir. 1949). See also Brucker v. Order of United Commercial Travelers, 217 F.2d 876, 881 (7th Cir. 1954).
Thus it is clear that at least some medical records prepared by hospital staffs are admissible in criminal cases. In addressing ourselves to the admissibility of the particular records before us, we deem it important to note that Exhibit A contains three general types of material. It contains material in the nature of a case history consisting largely of statements made by Bohle and third parties, principally his mother, and recorded by members of the hospital staffs. It also contains records concerning the treatment given Bohle and concerning observations made of him which require no special skill and as to which there is little likelihood of disagreement among trained observors. Finally, Exhibit A contains diagnoses, and similar judgment opinions, of Bohle’s condition prepared by those who attended him while he was hospitalized.
We do not propose to lay down rigid rules concerning any of these types of material, for in every case “the test is one of reliability,” Hickey, supra, 360 F.2d at 143. In each instance, the trial judge must be left some discretion to decide whether, in the words of the Uniform Rules of Evidence, “the sources of information from which [the records were] made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence, Rule 63 (13). See Judicial Conference of the United States, Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 803 (6) and Advisory Committee’s Note, 51 F.R.D. 315, 420 and 426-429 (1971). (Hereafter Proposed Rules for United States Courts). However, some generalizations seem possible and appropriate.
The case history “multiple hearsay” type of material in Exhibit A consists almost exclusively of statements by Bohle and his mother concerning events in his life prior to being hospitalized. Some courts would apparently admit such subjective statements of a patient’s history without any express requirement of an independent exception to the hearsay rule apart from the business record statute. Glawe v. Rulon, 284 F.2d 495. 498 (8th Cir. 1960), and Gaussen v. United Fruit Co., 412 F.2d 72, 73-74 (2d Cir. 1969); Tucker v. Loew's Theatre & Realty Corp., 149 F.2d 677, 680 (2d Cir. 1945); but cf. contra Felice v. Long Island R.R. Co., 426 F.2d 192, 196-197 (2d Cir. 1970). See Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725, 740-741 (1957) (dissenting opinion), cert. den. 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958); and New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297, 309-310 (1945). See also Pekelis v. Transcontinental & Western Air, Inc., 187 F.2d 122, 131 (2d Cir. 1951), cert. den. 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374. See generally McCormick on Evidence § 266, p. 564. The purpose for which these courts would admit such evidence is not clear. We find it necessary to distinguish two separate situations.
First, where such statements of case history are relevant merely because made, we think they are clearly admissible under Section 1732(a) if they meet its conditions. See McCormick on Evidence, § 290, p. 611; and 3 Jones on Evidence, § 548, pp. 1066-67 (5th Ed. 1958). Thus, in the instant case, the trial court correctly admitted these multiple hearsay statements in Exhibit A since they formed part of the basis of the expert opinions concerning Bohle's mental condition and were thus relevant whether or not true. It is undisputed that they were taken in the regular course of the hospitals’ business and that the hospitals regularly took and promptly recorded such statements.
However, the question remains whether the district court was correct in refusing to admit such multiple hearsay for the truth of the matters stated. We think it was. The reason is aptly stated in the following passage:
“These acts were intended to make admissible records which, because made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recordation of third party statements is routine, taken apart from the source of the information recorded, imports no guaranty of the truth of the statements themselves. There is no reason for supposing an intention to make admissible hearsay of this sort. So to construe these statutes would make of them almost limitless dragnets for the introduction of randon, irresponsible testimony beyond the reach of the usual tests for accuracy.” Note, Business Entry Statutes, 48 Col.L.Rev. 920, 927 (1948).
See also 3 Jones on Evidence § 548, p. 1067 (5th Ed. 1958).
We emphasize that the test is one of reliability. While the recording, in the ordinary course of a hospital’s business, of statements by patients and third parties is persuasive of the fact, when relevant, that such statements were made, it does little by itself to add credence to the contents of the statement. Because “the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail.” Proposed Rules for United States Courts, Advisory Committee’s Note, supra, 51 F.R.D. at 427. See also eases cited therein. In such a case, the record is not admissible for the truth of the matters stated, “not because it contains hearsay, but because it was not made in the regular course of business.” Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. den. 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958). See Simms v. United States, 101 U.S.App.D.C. 304, 248 F.2d 626, 630 (1957), cert. den. sub nom. Duncan v. United States, 355 U.S. 875, 78 S.Ct. 127, 2 L.Ed.2d 79. See generally McCormick on Evidence, § 290, p. 611 and cases cited therein.
Of course, where some independent exception to the hearsay rule is available to lend credibility to the second level hearsay and thus justify its admission, a different case is presented. See Proposed Rules for United States Courts, supra, Rule 805, 51 F.R.D. at 445; 2 Jones on Evidence § 316, p. 593 (5th Ed. 1958); McCormick on Evidence § 290, p. 611; and National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence, Rule 66. Here, however, no such exception beyond that provided by Section 1732(a) is claimed. Accordingly, the trial court properly admitted the case history portions of Exhibit A under the limiting instruction that they were not to be taken for the truth of the matters stated.
Turning to the second general type of material contained in Exhibit A, there seems to be no disagreement, even by courts which take a narrow view of the scope of Section 1732(a), that “regularly recorded facts as to the patient’s condition or treatment on which the observations of competent physicians would not differ are of the same character as records of sales or payrolls [and are, therefore, admissible for the truth of the matter stated under Section 1732 (a)].” New York Life Ins. Co. v. Taylor, supra, 147 F.2d at 303; Wheeler v. United States, supra, 211 F.2d at 23; and England v. United States, supra, 174 F.2d at 468-469. This court has previously reached a similar conclusion, Brucker v. Order of United Commercial Travelers, supra, 217 F.2d at 881. This agreement also extends to the results of routine tests. Wheeler, supra, 211 F.2d at 23, and authorities cited therein; Taylor, supra, 147 F.2d at 303-304, and cases cited therein. This court has reached the same result as to analysis of drugs by a government chemist. United States v. Ware, supra, 247 F.2d at 699-700. See generally 4 Orfield, Criminal Procedure under the Federal Rules § 26.808, p. 425; 3 Jones on Evidence § 548, p. 1066 (5th Ed. 1958); McCormick on Evidence § 290, pp. 609-10; and 6 Wigmore on Evidence § 1707, p. 36 (3rd Ed. 1940).
There are significant amounts of such routine information in Exhibit A, some of which could have been helpful to Bohle’s defense of insanity had the jury been allowed to consider it as true. Thus, there are statements that Bohle was originally admitted to a government mental hospital after an attempted suicide and assignment to a cell in the brig “especially for mental cases,” and that he was thereafter transferred directly to another government mental hospital. The exhibit also contains particularized statements concerning Bohle’s appearance, conduct and reactions. Many of these might also have aided Bohle’s defense if taken as true. For example, the exhibit contained records of Bohle’s “disheveled, depressed” appearance and of the fact that “it was apparent that his judgment and insight was impaired.” Under the instruction of the trial court, the jury could not accept these statements as evidence that Bohle had, in fact, given such appearances. Further, Exhibit A contained statements concerning the treatment given Bohle. Certainly the fact that Bohle was given treatment for a mental condition in the past might have helped his defense had the jury been permitted to accept Exhibit A as evidence that he was in fact given such treatment.
Thus, we conclude that the district court erred in instructing the jury that, even as to such routine matters, Exhibit A was not to be taken for the truth of the matters stated.
It may be argued that the limitation on admission of Exhibit A was harmless error since the entire exhibit was before the jury which could very well have taken all of the matters therein as not only being accurate recordations, but accurate as to the content thereof. However, we cannot assume that the jury would have thus disregarded the court’s instruction. We are not unmindful of an apparent dilemma because in a converse situation where prejudicial evidence has gone before the jury and is then stricken and the jury admonished to disregard the same, courts sometime take the position that the admonition could not have been effective to have removed the prejudicial effect of the improper evidence.
We cannot here, however, ignore the potential disadvantaged situation in which Bohle found himself of being unable to assert the validity of the matter so recorded. While the judge’s admonitory limitation did not deny the truthfulness of the matters, nevertheless, since the district court did expressly state that they were not admitted for their truth, the jury had open to it the possible conclusion that the doctor’s testimony based in part upon the recorded data was suspect in having an infirm basis and such opinions were no better than the basis upon which they were founded. In any event, we need not, because we find other errors, determine finally the prejudicial effect of the erroneous exclusions standing alone.
The final type of material found in Exhibit A consists of diagnoses of Bohle’s mental condition by members of the hospital staffs. The admissibility of such statements under § 1732(a) has provoked much controversy. The controversy seems not to extend to diagnostic statements based on objective data and presenting no more than average difficulty of interpretation. Even courts which steadfastly oppose the admission of more complex diagnoses concede the admissibility of a diagnosis considered more routine and less conjectural. See, e. g., Taylor, supra, 147 F.2d at 303-304. See generally McCormick on Evidence § 290, p. 612, n. 33 and authorities cited therein. See also Brueker, supra, 217 F.2d at 881.
However, where, as here, diagnoses of mental conditions are involved, there is a strong split of opinion both among and within courts. The opposing positions have been concisely summarized by Chief Judge Murrah in Otney v. United States, 340 F.2d 696, 699-700 (10th Cir. 1965). He finds that courts which exclude hospital records of psychiatrist’s opinions “draw a ‘distinction between the reasonable reliability of recorded facts on the one hand, and controversial technical opinions on the other’ and they regard the ‘difference between a “fact” (such as an act, transaction, occurrence or event) and an “opinion” ’, as fundamental in the law of evidence.” Id. Those courts which would admit such records view the diagnosis as “a recorded occurrence or event made in the course of the business of operating a hospital * * * [and] can see no basis for drawing a distinction between diagnoses of mental illness and diagnoses of physical illness or, for that matter, between ‘facts’ and ‘opinion’.” Id.
To this summary, we would add that courts wtiich would exclude records of mental diagnoses stress that because such diagnoses are based so much on judgment and opinion and are so subject to disagreement among trained experts, they must be “subjected to the safeguard of cross-examination of the physician who makes [them].” Taylor, supra, 147 F.2d at 304.
Those who would admit such records reply that the circumstantial guarantee of the accuracy of such diagnostic records is greater than average “for the records are made and relied upon in affairs of life and death.” Lyles v. United States, supra, 254 F.2d at 738-739 (dissenting opinion), citing 6 Wigmore on Evidence § 1707, p. 36 (3rd Ed. 1940); and Thomas v. Hogan, 308 F.2d 355, 361 (4th Cir. 1962), and cases cited therein. Further, it is reasoned, compelling the attendance at trial of all the medical personnel responsible for the diagnostic record “is too serious a price to pay for the doubtful advantage of cross-examining a doctor who [due to the volume of such routine cases] has little or no independent recollection of the subject he has reduced to writing.” Lyles, supra, 254 F.2d at 738 (dissenting opinion).
In addition, advocates of the admission of these records suggest that all records are subject to error which cross-examination might expose, but that Section 1732(a) nevertheless makes them admissible in reliance upon the circumstantial guarantees of trustworthiness arising from their origin, id. at 738-739, and in reliance upon the ability of juries to allow the proper weight to medical opinion of all types, id. at 740. Finally, it is argued that where the circumstantial evidence of trustworthiness is shown to be lacking either by the records themselves or by other evidence indicating that the opinion lacks factual basis or expert qualification, then the records would be barred by the limitations of Section 1732(a) itself and the doctrine of Palmer v. Hoffman, 318 U.S. 109, 111-115, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Thomas, supra, 308 F.2d at 361; Lyles, supra, 254 F.2d at 740. See Otney, supra, 340 F.2d at 700.
The positions taken in this controversy by various state and federal courts are ably summarized, with detailed citations, by Chief Judge Sobeloff in Thomas v. Hogan, supra, 308 F.2d at 359-360. See also 23 Modern Federal Practice Digest, Federal Civil Procedure, § 1192, for recent cases. The Advisory Committee’s Notes to the Proposed Rules for United States Courts, supra, 51 F.R.D. at 427-428, indicate a nearly even split in federal courts and note that the trend in state courts favors admissibility. The Proposed Rules, Rule 803(6), would admit diagnostic records. Id. at 420 and 428.
Apart from cases already cited sustaining the admission of routine observations and tests. Ware, supra, 247 F.2d 698, and Brucker, supra, 217 F.2d 876, this court has not been squarely presented the problem of diagnostic records. In a case involving a war risk insurance claim, we noted that the record contained evidence that the plaintiff had been admitted to a hospital and his mental condition diagnosed as psychoneurosis, hysteria. Becker v. United States, 145 F.2d 171, 173 (7th Cir. 1944). However, there was apparently no challenge to the admission of this evidence. Also, it may be questioned whether the evidence was admitted for the truth of the matters stated. See Taylor, supra, 147 F.2d at 305 n. 11. We think it clear that Becker was not intended to, and did not, resolve the question of the admissibility of records of mental diagnoses. Thus, we must approach it as an issue of first impression in this court.
It may well be that the coexistence of an increasingly complex society and overburdened courts may in the future necessitate the elimination of some of the evidentiary rules which we have heretofore deemed to be safe-guards for verity. We do not believe that we have arrived at that point, however, with regard to the third type of material under consideration. We concede that the records are made and relied upon in affairs of life and death but the proposed method of introduction would eliminate any direct attack upon the weaknesses or the omissions of the opinions involved. Admittedly too, medical personnel is becoming more reluctant to spend time in the court room. Resort may be more and more to out of court depositions but nevertheless the opponent is able thereby to have the opportunity of confrontation as to a particular opinion.
As a matter of fact, those who in a particular case would desire to gain the admission of the evidence may in some instances suffer by so doing. Thus, some other doctor for the opposition may on the witness stand refer to the opinion and point out that there is no indication therein that a particular aspect had been given consideration. Such aspect may well have been considered by the recording doctor but not deemed to be of such sufficient significance to record. By his not testifying, however, to spell out and defend his position, it is substantially weakened.
Particularly in the matter before us, we are dealing with a field of science in which there are many variables and one in which opinions must perforce be based upon many subjective factors requiring judgment evaluation. Here particularly the party to be confronted by such an opinion should have the full opportunity of cross-examination. We must also keep in mind that cross-examination deals not only with the basis and content of an opinion but with the professional qualification of the person rendering the opinion. This often would not appear in the recorded opinion.
For these reasons we are of the opinion that the district court ruled correctly as to the third type of evidentiary material.
Our discussion thus far has assumed that some parts of Bohle’s medical records could be admitted as evidence of the truth of the matters stated while other parts could be admitted for the lesser purpose of background without importing verity.
At least one court of appeals has found it to be clear error to admit less than the entire record. Harris v. Smith, 372 F.2d 806, 816-817 (8th Cir. 1967), and Glawe, supra,, 284 F.2d at 498. Where the admission of the entire record is necessary as background for parts otherwise admissible, we agree that it would ordinarily be error to exclude some parts. However, we can find no persuasive reason for an absolute rule on the subject. Certainly, where only part of the record is admissible for the truth of the matters stated, the court should so inform the jury and instruct it that other parts are admissible only as background.
EXAMINATION BY GOVERNMENT PSYCHIATRIST
Bohle further contends that his Fifth Amendment privilege against self-incrimination was violated when the trial court compelled him to submit to an examination by a Government psychiatrist and so to submit without having his attorney present.
At the time the court ordered the psychiatric examination, Bohle also stated the desire for his psychiatrist to be present. This was not permitted. On the motion for a new trial, the ruling as to the psychiatrist was urged in addition to that pertaining to the presence of counsel. On this appeal, however, the exclusion of the defendant’s psychiatrist was not urged as an error and we may deem it waived. If it had been urged, we would have treated this in the same manner as we do hereinafter the request for the presence of counsel.
Nearly two months prior to the beginning of the trial, the Government had moved to have Bohle examined by the Government’s own psychiatrist. The motion was denied by the court at that time. At the close of the second day of trial, just prior to the Government’s resting its case, when the defendant indicated that insanity was to be an issue, the district court then granted the Government’s motion and denied Bohle’s request that his counsel be present during the psychiatric examination. The examination was conducted over the weekend and the trial was not interrupted thereby. While there is apparently not entire unanimity on the issue here involved, which to some extent is still a developing concept in the law, in our opinion the better reasoning and result is that which is set forth in United States v. Albright, 388 F.2d 719 (4th Cir. 1958), and we approve the reasoning and result of that case for this circuit
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_usc1sect | 841 | 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 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. Frank C. McLISTER, Defendant-Appellant.
No. 78-3077.
United States Court of Appeals, Ninth Circuit.
Nov. 21, 1979.
Richard B. Mazer, San Francisco, Cal., for defendant-appellant.
Floy E. Dawson, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before HUFSTEDLER and GOODWIN, Circuit Judges, and JAMESON, District Judge.
The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation.
JAMESON, District Judge:
A jury found Frank C. McLister guilty of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and acquitted him of conspiring to distribute cocaine in violation of 21 U.S.C. § 846.
Factual Background
McLister and three codefendants, John Irwin, Sharon Baker, and Thane Rucker were arrested after participating in a transaction in which a pound of cocaine was sold to an undercover government agent. McLister does not deny his participation or his knowledge that the sale involved cocaine. Rather, he contends that he lacked the requisite criminal intent.
The events leading to the arrests began in Denver, Colorado, where Irwin was arrested by the Denver Police Department in December, 1977, for possession of cocaine. In exchange for a dismissal of the criminal charge against him, Irwin agreed to become an informant for the Police Department. In February, 1978, Irwin met Darrell Wisdom, a Drug Enforcement Administration (DEA) agent, who was posing as a large scale drug dealer. Wisdom was aware of Irwin’s status, but Irwin did not know that Wisdom was a DEA agent. In subsequent negotiations, Wisdom began to suspect that Irwin was “double dealing”, i. e., acting as an informant and continuing to deal in the illegal distribution of drugs.
On March 6 Irwin told Wisdom that he had set up a transaction in San Francisco for the purchase of a pound or two of cocaine. Irwin and his girl friend, Sharon Baker, flew to San Francisco later that day, and Wisdom followed on March 7. After making final arrangements for the purchase of the cocaine, Wisdom met Irwin and Baker in the lobby of the Hilton Hotel. Shortly thereafter McLister and Rucker arrived in McLister’s camper. After Wisdom entered the camper, Irwin and McLister produced the cocaine and gave it to Wisdom. Shortly thereafter, Wisdom and other agents arrested the four defendants.
At the trial Irwin testified that he had participated in the cocaine sale solely in furtherance of his plea agreement with the Denver Police and that he had intended to turn the participants over to the authorities. He claimed that McLister supplied the cocaine. On the other hand, McLister testified that prior to the transaction Irwin told him that he and Baker were acting as undercover agents for the Denver Police and that he reluctantly agreed to assist them in arranging for the arrest of a narcotics trafficker (Wisdom). McLister testified further that the cocaine he handed to Wisdom in the trailer belonged to either Irwin or Baker, who had placed it in the camper the night before with his permission.
Contentions on Appeal
Appellant contends that the district court erred in (1) restricting appellant’s cross-examination of his codefendant Irwin and Denver Police Detective Meyer; (2) permitting the prosecutor to cross-examine appellant concerning a misdemeanor conviction for possession of marijuana; and (3) instructing the jury that it would consider evidence that appellant had used cocaine; and (4) that the acquittal of appellant on the conspiracy charge was inconsistent with its verdict of guilty on the substantive charge.
Inconsistent Verdicts
We find no merit in appellant’s last contention that his acquittal on the conspiracy count precluded his conviction on the substantive count of distribution of cocaine. See, e. g., United States v. Livengood, 427 F.2d 420, 423 (9 Cir. 1970), where the jury acquitted the defendants on conspiracy charges to commit mail fraud, but convicted them on substantive counts of overt acts included in the conspiracy count. This court rejected the contention that a reversal was required and followed the general rule “that consistency between the several counts of an indictment or information is not necessary where a defendant is convicted upon one or some of the counts but acquitted on another or others and that the conviction will be sustained even though rationally incompatible with the acquittal.” Id. at 423 (citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)).
We conclude, however, that the combination of other alleged errors requires a reversal, even though each by itself might constitute harmless error.
Cross-examination of Irwin and Meyer
The alleged errors in the cross-examination of codefendant Irwin and Gregory Meyer, a Denver Police Department detective, resulted in large part from the conflicting contentions of the defendants, i. e., Irwin and Baker claiming that McLister owned the cocaine, and McLister claiming that it was owned by Irwin or Baker, and that he was simply assisting them in arranging for the sale to a narcotics trafficker, assuming that Irwin and Baker were under-cover agents.
(a) Cross-examination of Meyer
Meyer, called as a witness by codefendant Baker, testified during direct examination that in February, 1978, he did not believe Irwin was double dealing in his negotiations with agent Wisdom, despite DEA conclusions to the contrary. On cross-examination Meyer was asked by counsel for McLis-ter if he then believed Irwin had been double dealing. The court sustained the Government’s objection that Meyer’s opinion was irrelevant. In an offer of proof McLister claimed that Meyer would have testified that at the time of trial he believed Irwin had been double dealing, contrary to his previous opinion: Appellant argues that this testimony should have been permitted because it related to a subject raised on direct examination and supports his defense.
It is probably true, as the Government argues, that Meyer’s answer might have “caused prejudicial harm to Irwin”. We cannot agree, however, that it could not have benefited McLister. Meyer’s testimony on direct examination might well have left the impression that at the time of trial, Meyer continued to believe that Irwin was not double dealing and his participation in the transaction was solely to assist the Denver police. This would affect McLister’s defense, which in part required the jury to believe that Irwin was acting on his own and was the owner of the cocaine. To prevent a possible half truth, detrimental to appellant, it was proper and relevant for him to cross-examine detective Meyer on his current opinion on whether Irwin had been double dealing. See United States v. Brady, 561 F.2d 1319, 1320 (9 Cir. 1977). The question was directed specifically to testimony developed by Irwin and the trial court on direct examination. See United States v. Alvarez-Lopez, 559 F.2d 1155, 1158 (9 Cir. 1977).
(b) Cross-examination of Irwin
On April 4,1978, Wisdom, without Irwin’s knowledge, taped a telephone conversation in which Irwin admitted that he had been double dealing in San Francisco. Following a pretrial hearing the district court granted Irwin’s motion to suppress this conversation, under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
At trial the court refused to allow appellant to question Irwin concerning the April 4 conversation on the ground that the post-arrest conversation was irrelevant. Appellant argues that the conversation would have (1) shown Irwin’s bias, prejudice and interest in naming the appellant as the source of the cocaine, (2) impeached Irwin’s credibility, and (3) supported appellant’s defense.
Irwin testified that he acted solely to further his plea agreement with the Denver police, and that McLister had furnished the cocaine. It was necessary to appellant’s defense that the jury find that Irwin had been double dealing and also that appellant had assumed that Irwin was acting as an undercover agent. Appellant had a right to impeach Irwin’s credibility. The evidence was relevant and might have been helpful to appellant’s defense. The fact that Irwin was not called as a witness by the Government is immaterial. See United States v. Dixon, 547 F.2d 1079, 1084 (9 Cir. 1976).
The Government argues that any error in refusing to permit appellant to examine Irwin was, in any event, harmless error. It is true that in finding Irwin guilty of both conspiracy and distribution, the jury must have believed that he was double dealing. It is difficult, however, to determine what effect, if any, this testimony would have had upon appellant’s defense. If this were the only error, we might well conclude that it was harmless in view of other evidence of McLister’s guilt. As noted supra, however, we conclude that combined with other errors, reversal is required.
Prior Marijuana Conviction
The district court, over objection, permitted the Government to cross-examine McLister with regard to a misdemeanor conviction nine years earlier involving possession of one cigarette. As the Government notes in its brief, the evidence was offered as a “misdemeanor conviction involving moral turpitude” under Rule 609(a), Federal Rules of Evidence. The court, however, did not accept the evidence under that theory and later instructed the jury that the conviction could be considered “only in the light of the characterization of . [appellant’s] life style as one that might normally have been expected to exclude the use of such substances”.
(a) Admissibility under Rule 609(a)
Rule 609(a), Federal Rules of Evidence provides:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him 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 he 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.
The marijuana conviction was not punishable by “imprisonment in excess of one year” and did not involve “dishonesty or false statement”. It therefore could not be used to impeach credibility. See, e. g., United States v. Ortega, 561 F.2d 803 (9 Cir. 1977); United States v. Thompson, 559 F.2d 552 (9 Cir. 1977).
(b) Admissibility under Rule 404
Rule 404 relating to “character evidence” provides in 404(a) that:
Evidence of a person’s character . is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except [when] . offered by an accused, or by the prosecutor to rebut the same .
A defendant may offer testimony “that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged”. Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948). Such testimony is limited to opinions with respect to the defendant’s general reputation in the community. When the defendant offers testimony tending to prove his good reputation, the Government may introduce contradictory evidence. Id. 476, 69 S.Ct. 213 et seq.
Appellant’s counsel in his opening statement told the jury that McLister was engaged in the antique business, had purchased property in Colorado and intended to go into the hydroponics business, and came from “what may be called a relatively privileged background”, with no need to get into any illegal business. McLister testified regarding his property interests and his intention of going into the hydroponics business. The Government argues that it had the right under Rule 404(b) to impeach McLister’s credibility and to show “his knowledge of illicit drugs”.
We cannot find that either counsel’s opening statement or McLister’s own testimony placed his general character in issue under Rule 404(a) or under the rules set forth in Michelson v. United States, supra. See United States v. Tomaiolo, 249 F.2d 683, 689 (2 Cir. 1957). Nor did appellant request any jury instruction indicating that he intended to place his character in issue. The trial judge specifically instructed the jury that the marijuana conviction was to be used “only in the light of the characterization of . [appellant’s] life style . ”. There is no suggestion that the court intended that the evidence could be considered for any of the purposes, including knowledge, set forth in Rule 404(b).
Assuming, arguendo, that the appellant’s character was placed in issue or that Rule 404(b) is applicable, any relevance the marijuana conviction might have is outweighed by its prejudicial effect. Rule 403 and Rule 609, Fed.R. of Evid., require balancing of the probative value of the evidence against its prejudicial effect. A misdemeanor marijuana conviction nine years before the indictment has little probative value to impeach credibility or to prove any of the purposes listed in Rule 404(b), but its prejudicial effect could be significant.
The Government argues that any error in admitting the evidence was harmless beyond a reasonable doubt — that evidence of a minor marijuana conviction nine years ago could not be deemed unfairly prejudicial. If this were the only error, we might agree, but again we must consider the potential effect of the series of errors in the Government’s proof.
Instruction on Cocaine Use
Irwin testified that the night before the San Francisco arrests, he, Baker, McLister, Rucker and four others were at appellant’s home. Someone produced cocaine for “socializing”, which he ingested to satisfy himself that it was cocaine and not a substitute. He denied knowing who brought the cocaine out. Appellant denied having used it.
The court instructed the jury that “there was some testimony that he [appellant] had used cocaine at his home in the presence of the persons who were said to be there.” Appellant objected, claiming that no evidence in the record indicated that he had used the cocaine. The court then rein-structed the jury as follows:
THE COURT: I think I said to you that there was evidence that McLister might have ingested some cocaine at his house on the evening of the purported party.
You will recall what the evidence was on that point. I have. It’s been suggested that there was no specific evidence dealing with Mr. McLister and it may well be that the evidence was solely that some other person or persons had done it and there was no evidence with respect to Mr. McLister. So I withdraw that. If you do think that the state of the evidence was such as to indicate that McLis-ter did ingest any cocaine on that evening, then consider that only for the limited purpose that I indicated to you.
But I do not state unequivocally that that is what the evidence said, but it might be that it is possible for you to make that, draw that conclusion from the evidence.
Appellant contends that the jury could not permissibly infer from the evidence in the record that he had used cocaine on the night prior to his arrest. He argues that the trial judge’s instruction that the jury might draw this conclusion inserted a false issue in the case, and was, therefore error.
It is of course well established that an instruction should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation. See, e. g., United States v. Thomas, 453 F.2d 141, 143 (9 Cir. 1971), cert. denied 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1978); United States v. Waskow, 519 F.2d 1345, 1347 (8 Cir. 1975). Here Irwin testified that someone produced a small amount of cocaine for “socializing” at McLister’s home and that he had a conversation with McLister about the cocaine before it was passed around. There is no evidence, however, that McLis-ter used the cocaine.
The Government argues that even though the record “does not specifically reflect that McLister used any of this cocaine”, it is reasonable to infer that he used and furnished it; that the erroneous instruction was corrected; and that in any event, it was harmless error in the context of this case.
While a close question is presented, we conclude that the instruction was improper in view of the absence of any evidence that McLister used the cocaine. If this were the only error, we would hold it harmless. As noted supra, however, we are forced to the conclusion that the combined errors were prejudicial and require a reversal. See United States v. Ortega, supra.
Reversed and remanded for new trial.
. The defendants were charged and tried jointly. Irwin and Baker were convicted of both conspiracy to distribute and distributing cocaine. Irwin’s conviction is on appeal. Baker is a fugitive. Rucker was acquitted on both charges.
. Prior to trial McLister had moved to sever his trial from that of Irwin and Baker on the ground that their testimony was indispensible to his defense. The motion was denied. In light of the proof offered at the trial, the motion could properly have been granted.
. Having found possible prejudice, we need not consider whether the restriction of appellant’s right to cross-examination was of constitutional dimensions. See United States v. Brady, supra, 561 F.2d at 1320.
. Rule 404(b) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
. The Government’s reliance upon United States v. Batts, 573 F.2d 599 (9 Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978), is misplaced. Batts is distinguishable on two grounds: (1) Batts, charged with distribution of hashish, claimed lack of knowledge of cocaine, the uses of a coke spoon, and the existence of hashish in his vehicle. Evidence that he had recently participated in a cocaine sale was held admissible under Rule 404(b), to show “knowledge”. Here McLister admitted “knowledge” of the cocaine. (2) In holding that the relevant factor was the type of activity undertaken rather than the identity of the drug, we held in Batts that the “connecting factor” was that both the prior act and the current offense involved an intent to distribute an illegal drug. Here the conviction for possession of one marijuana cigarette nine years before trial bears little similarity to the current charge of distributing cocaine.
. Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” While Rule 404(b) is an “inclu-sionary rule”, it is subject to the balancing test of Rule 403. The trial judge must perform this balancing. E. g., United States v. Sangrey, 586 F.2d 1312, 1314 (9 Cir. 1978).
Question: 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 21? Answer with a number.
Answer: |
songer_erron | B | 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 civil law issues involving government actors. The issue is: "Did the court's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. 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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S. PRAWER & COMPANY, Respondent.
No. 78-1030.
United States Court of Appeals, First Circuit.
Argued June 5, 1978.
Decided Sept. 27, 1978.
Jesse I. Etelson, Atty., N.L.R.B, Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John H. Ferguson, Atty., Washington, D. C., were on brief, for petitioner.
Harold N. Mack, Boston, Mass., with whom Philip J. Moss, and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
The National Labor Relations Board (“Board” or “NLRB”) seeks enforcement of its order that S. Prawer & Co. (“Company”) cease and desist from certain unfair labor practices found by the Board, that it bargain with the Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO (“Union”) upon request, and that it post appropriate notices. The Company alleges that the Board’s finding of section 8(a)(5) and (1), 29 U.S.C. § 158(a)(5) and (1), violation does not find substantial evidence in the record as a whole and that the Board erred in not accepting into evidence certain statements by one of the employees and in failing to hold an evidentiary hearing.
On October 5, 1977, the Union requested the Company to recognize and bargain with it. The Company refused. The Union had been certified as the bargaining representative pursuant to an election held on March 19, 1976. The Company had filed timely exceptions to the election alleging that the election was invalid (1) because of a rumor circulated to twelve of fourteen employees the morning of the election to the effect that the plant was moving to a location twenty-five or thirty miles away; (2) because the Union had allegedly misrepresented to employees that a former employee had been terminated for union activities; and (3) that the Union had circulated, nine days prior to the election, a news letter purportedly misrepresenting a claim that it had negotiated a $.60 per hour raise and improvements in vacation and sick pay on behalf of members employed by Ryder Truck Rental of Portland. Following an investigation, the Regional Director found against the Company on all three exceptions. The Company took exceptions to the Director’s report, which the Board rejected in September, 1977, when it adopted the findings of the Regional Director and certified the election. The Company refused to bargain with the Union, persisting in its claim that the election results should be overturned. Subsequent unfair labor practice charges were filed, charging the Company with refusal to bargain. The Board found against the Company on the unfair labor practice charges and now seeks enforcement of its orders by this court.
While many cases may be decided without detailed separate analysis of the issues to be reviewed, there is a two-tiered process involved: we review the fact findings of the Board in its petition for enforcement of its orders on the unfair labor practices complaint pursuant to the standard articulated in the statute, 29 U.S.C. § 160(e), and enunciated in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,487-488, 71 S.Ct. 456, 95 L.Ed. 456 (1951), as to whether the Board order finds substantial evidence in the record as a whole. Since Board rulings on the certification challenge are not reviewable directly, A.F.L. v. N.L.R.B., 308 U.S. 401, 406, 60 S.Ct. 300, 84 L.Ed. 347 (1940), but only to the extent that the unfair labor practices complaint rests upon them, Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 154, 61 S.Ct. 908, 85 L.Ed. 1251 (1941), our standard of review on that question is restricted to an analysis of whether the Board abused its discretion in certifying the election. N.L.R.B. v. O. S. Walker Co., Inc., 469 F.2d 813, 817 (1st Cir. 1972). We also determine whether the Company’s assertion that it was denied due process has merit. Pittsburgh Plate Glass Co. v. N.L.R.B., supra, 313 U.S. at 154-155, 61 S.Ct. 908.
The Regional Director investigated the claim that a plant relocation rumor had so charged the atmosphere immediately preceding the election that the employees were thwarted in the attempted exercise of their free choice in selecting vel non a bargaining representative. N.L.R.B. v. A. G. Pollard Co., 393 F.2d 239,241 (1st Cir. 1968). Eleven or twelve of fourteen voting employees attended a meeting the morning of the election. One of the employees stated that he had heard that the Company was going to relocate to a location twenty-five or thirty miles away. Another employee, the brother-in-law of the Company’s warehouse manager, said that he knew this to be so. Several employees then commented that they would be unable to remain with the Company should the move take place. The Regional Director ruled that this rumor was not sufficient to set aside the election. He responded to the Company’s assertion that such a rumor would have the effect of causing employees to vote for the Union in hopes that the Union would be able to negotiate favorable severance pay or moving expense provisions by noting that as reasonable an inference could be drawn that employees would not vote for the Union in the hopes of encouraging the Company to remain at its present location. No offer of proof was tendered by the Company to show that, in fact, any employee had changed his vote because of the rumor. The effect of such a rumor is ambiguous at best. In the absence of an offer of proof, the investigator was entitled to draw any reasonable inference from the evidence. N.L.R.B. v. O. S. Walker Co., Inc., supra, 469 F.2d at 819. The Board concluded, and we affirm, that the Regional Director's inference was not unreasonable. The burden rests with the party urging that an election be set aside. That burden, as we have noted elsewhere, is a heavy one, Solon Mfg. Co. v. N.L.R.B., 544 F.2d 1108, 1111 (1st Cir. 1976), which the Company here has failed to shoulder.
The Regional Director determined that the Company’s second allegation concerning the termination of a former employee involved no misrepresentation on the part of the Union. The former employee had resigned more than one month prior to the election and other employees quickly learned of the fact. There was some feeling that he had resigned under pressure by the Company. However, there was no evidence that the Union had claimed that he had been terminated for union activities. Rather, the evidence indicated the Union stated that, if he had been terminated for union activity, the Union would do something on his behalf. Two days before the election, the Union filed an unfair labor practice in relation to the resignation. Thereafter, the charge was dismissed by the Regional Director for insufficient evidence. The Board affirmed the Regional Director’s finding that there was no evidence to suggest that the Union had misrepresented the resignation and further stated that, even had the Union misrepresented the situation, this was an instance where the employees would have no reason to believe that the Union’s information was any more accurate than their own and that the employees could accordingly assess any such union representation. See N.L.R.B. v. International Equipment Co., Sub., Damon Corp., 454 F.2d 686, 688 (1st Cir. 1972). We find no error here.
The third claim involved a purported misrepresentation by the Union of contract improvements it had negotiated with another company, Ryder Truck Rental of Portland. The investigation revealed that the Union, in response to alleged Company statements that the employees would lose benefits if the Union came in, claimed certain benefits won in another contract with Ryder. There was no material misrepresentation found by the Board in the open letter which the Union circulated nine days before the election. The Union claimed improved pay, holiday and sick pay benefits. The Board, in ruling that the claim of increased sick pay was not untrue, found that, though there was no separate increase for sick pay, since sick pay was tied to the wage rate, it increased as a function of the increased pay. Furthermore, the Board noted that this was not an eleventh hour pronouncement, timed so as to deprive the Company of opportunity for adequate response. Compare Cross Baking Co. v. N.L.R.B., 453 F.2d 1346, 1350 (1st Cir. 1971). The letter was circulated nine days prior to the election and contained a statement urging the employees to contact the Ryder employees to verify the information. In fact, some employees had obtained a copy of the Ryder contract before the election and thus had the opportunity to appraise the Union’s claims themselves. Compare N.L.R.B. v. Trancoa Chemical Corp., 303 F.2d 456, 460 (1st Cir. 1962). The Company itself had seen the open letter two days prior to the election and could have rebutted any portion it wanted. Cross Baking Co., supra, 453 F.2d at 1349. The record supports the Board’s findings.
In resolving not to bargain with the Union following certification by the Board, the Company’s position has been that the election should be set aside. In addition to the substantive complaints discussed above, the Company asserts that the Board erred as a matter of law in not including as part of the record certain material and in dispensing with an oral hearing.
Turning first to the assertion that the Board erred in not requiring an evidentiary hearing, we note, as we have in the past, that broad discretion reposes in the Board on this question. Solon Mfg. Co., supra, 544 F.2d at 1110. A hearing is required only where substantial and material factual issues exist. 29 C.F.R. § 102.69(d); Baumritter Corp. v. N.L.R.B., 386 F.2d 117, 120 (1st Cir. 1967). To raise a substantial and material factual issue, it was incumbent on the Company to come forward with specific evidence to challenge the Regional Director’s finding that the plant relocation rumor did not affect employees’ votes. The offer of proof necessary to require a hearing must be based on more than a mere difference of opinion with the Regional Director’s inferences and conclusions. It must point to specific evidence which will be presented to controvert those findings, N.L.R.B. v. Target Stores, Inc., 547 F.2d 421,425 (8th Cir. 1977), and which prima facie would warrant setting aside the election. N.L.R.B. v. O. S. Walker Co., Inc., supra, 469 F.2d at 818. The Company’s argument that an issue of credibility was raised by employee David Thomas’ claim that he felt that some employees had changed their vote because of the plant relocation rumor is not the kind of specific evidence needed to carry the Company’s burden. The Regional Director’s investigation revealed no employee who had changed his vote as a result of the rumor. Employee Thomas’ statement that he “felt” that the rumor affected the vote, while disclaiming any effect on his own vote, does not rise above the level of speculation and conjecture. The Company came forth with no sufficient reason for requiring a hearing and the Board did not abuse its discretion in refusing to grant one.
The Company also forwards as error the Board’s refusal to consider as part of the formal record certain unsigned and signed statements of employee David Thomas, to the effect that he felt that the rumor affected the election. The Company attempted to submit Thomas’ statement— both the signed and unsigned versions — on three separate occasions, all after the time for filing exceptions and supporting briefs to the Regional Director’s report had expired. The Board rejebted the material as untimely. We need not reach the question, urged by the Company, of whether an unsigned statement, given by Thomas to a Board agent during the investigation, is properly considered “documentary evidence” as that term is used in 29 C.F.R. § 102.69(g). It is clear that the statement, originally given orally to the Regional Director’s representative, in the presence of the Company attorney, was part of the evidence on which he based his decision. The fact that the Regional Director did not interpret it in the manner desired by the Company and failed to mention it imports no reviewable issue. He is not required to comment on every bit of evidence gathered during an investigation. Given the ambiguous nature of Thomas’ statement and its minimal probative value, we see no error by the absence of any reference to it.
The other issues raised before the Board and not repeated here include no grounds for reversing the Board’s findings. The orders are enforced. Costs awarded petitioner.
. The Company maintained that an employee, David Thomas, had said that the rumor had affected the election. And yet, when interviewed by a Board agent, Thomas stated that he had not changed his vote because of it. Furthermore, the Regional Director found that no employee interviewed during the investigation indicated that his vote was in any way affected by hearing the rumor. Thomas’ claim that he felt that other employees had changed their vote is not the type of convincing proof sufficient to overturn the Regional Director’s findings.
. Since the proceedings in the instant case, the Board has articulated a standard for upsetting elections which tightens the requirements and limits the ability of a disappointed party to urge that an election be set aside. Shopping Kart Food Market, Inc., 228 NLRB No. 190, 94 LRRM 1705 (1977). Since the Company here is unable to prevail even on the basis of the preexisting more liberal standard, see Hollywood Ceramics Co., 140 NLRB 221 (1962), we need not consider the effect of the new standard.
. The regulation, in pertinent part, reads as follows:
The notice of hearing, motions, rulings, orders, stenographic report of the hearing, stipulations, exceptions, documentary evidence, shall constitute the record in the case. Materials other than those set out above shall not be a part of the record; except that in a proceeding in which no hearing is held, a party filing exceptions to a regional director’s report on objections or challenges, a request for review of a regional director’s decision on objections or challenges, or any opposition thereto, may append to its submission to the Board copies of documents it has timely submitted to the regional director and which were not included in the report or decision.
Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_genresp2 | 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.
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.
Kurt J. LINDNER, Edith Lindner; St. Joseph Hospital of Kirkwood; Admiral Insurance Agency; Lindner Fund, Inc.; Petty & Company; Landmark Central Bank & Trust Company, Appellants, v. DURHAM HOSIERY MILLS, INC.; George A. Cralle; H.E. Schoenhut, Jr.; W.K. Bigelow; H.E. Rodenhizer; W.C. Spann and John P. Barnett, individually, Appellees.
No. 84-1593.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1985.
Decided May 6, 1985.
William Woodward Webb, Raleigh, N.C. (Broughton, Wilkins & Webb, P.A., Raleigh, N.C., Kevin P. Roddy, Smith, Tag-gart, Gibson & Albro, Charlottesville, Va., on brief), for appellants.
G. Eugene Boyce, Raleigh, N.C. (Susan K. Burkhart, Boyce, Mitchell, Burns & Smith, P.A., Raleigh, N.C., on brief), and L. Bruce McDaniel, Raleigh, N.C. (DeBank, McDaniel, Heidgard & Holbrook, Raleigh, N.C., on brief), for appellees.
Before RUSSELL and CHAPMAN, Circuit Judges and HAYNSWORTH, Senior Circuit Judge.
CHAPMAN, Circuit Judge:
This appeal arises out of the merger and reorganization of Durham Hosiery Mills, Inc. (Durham Hosiery), a North Carolina corporation, into DHM, Inc., a Virginia corporation, on January 15, 1981. The plaintiffs brought this diversity action alleging that the defendants had deprived them of the fair market value of their stock by virtue of a reverse stock split accomplished as a part of the merger. The plaintiffs appeal from the decision of the district court dismissing their claim for relief under the North Carolina Unfair Trade Practices Act, N.C.Gen.Stat. § 75-1.1 (1981), and denying their motion for a new trial on their claim for breach of fiduciary duty. We affirm.
I
The plaintiffs are former minority shareholders who owned Class B nonvoting stock in Durham Hosiery. All of the plaintiffs are citizens and residents of the State of Missouri. Defendant Durham Hosiery was a hosiery manufacturer incorporated in North Carolina with plants located, at one time, in both North Carolina and Virginia. Defendants Bigelow, Rodenhizer, and Spann were directors of Durham Hosiery.
In August 1980 a New York stockbroker contacted the president of Durham Hosiery, defendant George Cralle, and offered him a large block of stock. The broker was asking $7 a share for the Class B stock and $12 a share for the Class A stock. Cralle contacted John P. Barnett, an acquaintance who had negotiated the sale of the Danville plant to Durham Hosiery, and offered him the opportunity to acquire this block of stock.
After many discussions, Barnett authorized Cralle, who had personally dealt with the New York stockbroker, to negotiate the purchase of the Durham Hosiery stock. On November 7, 1980, Barnett purchased through Cralle 25,705 shares of Class B and 2,483 shares of Class A stock from the New York stockbroker. Because the number of outstanding Durham Hosiery shares was 71,101, this transaction represented a purchase by Barnett of 40 percent of the company’s stock. The majority of the company’s shares was owned by Cralle and Harry S. Schoenhut, the vice president of Durham Hosiery.
Cralle and Schoenhut had been employees of Durham Hosiery for 28 years and 13 years, respectively. Before these transactions occurred, the Board of Directors of Durham Hosiery had discussed and concluded that the company would provide retirement benefits for Cralle and Schoenhut. When Barnett began acquiring stock in Durham Hosiery and reorganization discussions began, Cralle requested that Barnett honor the company’s obligation to fund the retirement plans that he and Schoenhut had anticipated. Barnett agreed that after the merger Schoenhut would receive deferred compensation of $500,000 for consulting services to the corporation. Cralle received similar assurances, and also an option to sell to Barnett his shares of Durham Hosiery. By the time of the merger, Barnett had accumulated a majority of the Durham Hosiery stock.
After Cralle and Barnett discussed their intentions for the reorganization of Durham Hosiery, Barnett arranged a meeting with attorney Frederick R. Russell. Russell advised Barnett and Cralle to reduce substantially the number of Durham Hosiery shareholders to enable the company to raise one million dollars of working capital through personal guarantees. Russell also recommended that Durham Hosiery eliminate nonvoting stock. Finally, they agreed to a plan by which those shareholders interested in remaining in the corporation had to accumulate 4,500 shares in the old corporation to acquire one share in the new corporation. The new corporation would have only 16 shares of stock. Holders of fewer than 4,500 Durham Hosiery shares were either to purchase sufficient shares to bring the total to 4,500, or to sell their shares at a price determined by bids received by the corporation from holders seeking more shares.
Durham Hosiery mailed to its shareholders a Proxy Statement and other documents, prepared by Russell, containing descriptions of the proposed merger and reorganization. According to the Proxy Statement, shareholders objecting to the merger could dissent and seek appraisal of and payment for their shares in the corporation by complying with the “Virginia Stock Corporation Act (or the similar provi sion of North Carolina law).” Cralle read the documents and signed the Proxy Statement.
On December 22, 1980, the Board of Directors of Durham Hosiery voted unanimously in favor of the plan for reorganization and merger. At a special meeting on January 12, 1981, the Durham Hosiery shareholders approved the merger by an affirmative vote of 80 percent or more of each class of outstanding stock. The plaintiffs dissented from the proposed merger and reorganization, executing their proxies on December 27, 1980. The Articles of Merger of Durham Hosiery Mills and DHM, Inc. were filed with the Secretary of State of North Carolina on January 15, 1981, and the merger was effected.
On January 19, 1981, Durham Hosiery sent a letter to the plaintiffs and other Durham Hosiery shareholders explaining that the merger had been overwhelmingly approved and that the merger was effective. The letter, signed by Cralle, also instructed the shareholders to execute an enclosed form for disposing of fractional interests in the stock and requested return of the stock certificates in accordance with the plan for payment. The plaintiffs did not respond to this letter. On February 23, 1981, Durham Hosiery sent another letter to the plaintiffs instructing them to submit their stock certificates in order to receive $7 per share of stock. The plaintiffs again failed to submit their stock certificate for payment.
In April 1981 the plaintiffs filed an action in the Wake County Superior Court of North Carolina seeking a determination of the fair value of Durham Hosiery stock. This state appraisal action was pending on December 23, 1981, when the plaintiffs filed the present action for damages in the district court. That action is still pending in the North Carolina state court.
In this action the plaintiffs alleged causes of action for (1) violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Security Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. 240.10b-5 (1984); (2) constructive fraud; (3) breaches of fiduciary duty; (4) violations of the North Carolina Securities Act, N.C.Gen.Stat. § 78A-56(b) (1981); (5) unfair or deceptive acts or practices in violation of N.C.Gen.Stat. § 75-1.1 (1981); and (6) violations of the North Carolina Dissenters’ Rights Statute, N.C.Gen.Stat. §§ 55-108, 113 (1981). In two separate memoranda opinions the district court dismissed all of the plaintiffs’ claims except their claim for breach of fiduciary duty. On January 12, 1984, the plaintiffs amended their complaint to allege a cause of action under the civil damages provision of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961—68 (1982).
After twelve days of testimony the jury found that the defendants had not committed a breach of fiduciary duty and that they had not violated the provisions of the RICO Act. The district court denied the plaintiffs’ motion for a new trial and entered judgment in accordance with the jury’s verdict. This appeal followed.
II
The first issue presented is whether N.C.Gen.Stat. § 75-1.1 applies to securities transactions. The plaintiffs argue that the defendants’ conduct constituted an unfair or deceptive act or practice in violation of § 75-1.1. The district court dismissed this claim and held that “the instant merger transaction does not fall within the scope of N.C.Gen.Stat. Sec. 75-1.1.” It stated that § 75-1.1 “is directed toward misrepresentation and shady practices sometimes associated with the marketing of goods and services, and that the deterrent of such practices for the protection of the general public is the reason that ... [§] 75-16 entitled the person injured by such acts to treble damages.” The district court reasoned that § 75-1.1 has no application to a securities fraud case involving a corporate merger because such an application is inconsistent with the purpose behind the enactment of § 75-1.1.
Because the North Carolina Unfair Trade Practices Act does not refer to securities transactions and the North Carolina courts have not addressed this issue, we must ascertain what the North Carolina Supreme Court would decide if confronted with this question. Our inquiry is guided by the purpose behind § 75-1.1, the North Carolina cases limiting the scope of § 75-1.1, other state cases construing similar statutes, and the scope of § 5 of the Federal Trade Commission (FTC) Act, 15 U.S.C. § 45(a)(1) (1982).
Section 75-l.l(a) declares that “[ujnfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are ... unlawful.” There are only two express exclusions contained in the statute. Subsection (b) excludes professional services rendered by a member of a learned profession. Subsection (c) excludes the advertising media when the owner, agent or employee who published the material did not have knowledge of the false, misleading or deceptive character of the advertisement and did not have a direct financial interest in the sale or distribution of the advertised product or service. This Court previously has observed that the “prohibitory scope of the North Carolina [Unfair Trade Practices Act] ... is potentially quite broad.” ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 n. 10 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (citing Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716-17 (4th Cir.1983)). Nevertheless, the scope of § 75-1.1 is not unlimited.
The apparent purpose behind the enactment of § 75-1.1 was the protection of the consuming public. In Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981), the North Carolina Supreme Court stated:
In an area of law such as this, we would be remiss if we failed to consider also the overall purpose for which this statute was enacted. The commentators agree that state statutes such as ours were enacted to supplement federal legislation, so that local business interests could not proceed with impunity, secure in the knowledge that the dimensions of their transgression would not merit federal action.
Id. at 549, 276 S.E.2d at 403. The North Carolina Supreme Court also stated that “[i]n enacting [§ 75-1] and [§ 75-1.1], our Legislature intended to establish an effective private cause of action for aggrieved consumers in this State” because “common law remedies had proved often ineffective.” Id. at 543, 276 S.E. at 400. Moreover, the commentators agree that the North Carolina Unfair Trade Practices Act grew out of antitrust laws in an effort to protect the consuming public from anticompetitive business practices. See Morgan, The Peo-pie’s Advocate in the Marketplace — The Role of the North Carolina Attorney General in the Field of Consumer Protection, 6 Wake Forest L.Rev. 1, 12 (1969). The North Carolina Supreme Court’s discussion of the purpose behind § 75-1.1, although not dispositive of this case, gives some guidance on the potential scope of that section.
Two North Carolina eases have limited the potential scope of § 75-1.1. In Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 248 S.E.2d 567 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 32 (1979), the North Carolina Court of Appeals held that commodities transactions are not within the ambit of § 75-1.1. The court held that the “pervasive” federal scheme for regulating commodities transactions militated against finding a state cause of action under § 75-1.1. The court also recognized that a finding that one party’s conduct violated § 75-1.1 would expose it to a host of legislatively created sanctions in addition to those sought in the suit. Based on these concerns, the court held that “Congress has clearly expressed its intent to exercise exclusive jurisdiction over the activity of the commodity exchanges and has provided elaborate administrative procedures for the redress of grievances” pursuant to the Commodity Exchange Act, 7 U.S.C. § 1 et seq. (1976). 38 N.C.App. at 418, 248 S.E.2d at 570.
Similarly, in Buie v. Daniel International Corp., 56 N.C.App. 445, 289 S.E.2d 118 (1982), cert. denied, 305 N.C. 759, 292 S.E.2d 574 (1982), the North Carolina Court of Appeals held that employer-employee relationships did not fall within the intended scope of § 75-1.1. The court reasoned that “[ejmployment practices fall within the purview of other statutes adopted for that express purpose.” 56 N.C.App. at 448, 289 S.E.2d at 120. Although neither Hunsucker nor Buie are directly dispositive of this case, both cases stand for the proposition that the presence of other federal or state statutory schemes may limit the scope of § 75-1.1.
We find it significant that no state court has held that its Unfair Trade Practices Act applies to securities transactions. In fact, courts in three states, Rhode Island, South Carolina, and Washington, have held that their state Unfair Trade Practices Act has no application to securities transactions. State v. Piedmont Funding Corp., 119 R.I. 695, 382 A.2d 819 (1978); State ex rel. McLeod v. Rhoades, 275 S.C. 104, 267 S.E.2d 539 (1980); Kittilson v. Ford, 23 Wash.App. 402, 595 P.2d 944 (1979), aff'd, 93 Wash. 223, 608 P.2d 264 (1980). In each case the state court held that its Unfair Trade Practices Act did not apply to securities transactions because of a particular statutory provision exempting “actions or transactions permitted under laws administered by any regulatory body” of the state or the United States. Although the presence of that statutory exemption makes Piedmont Funding, Rhodes and Kittilson distinguishable from this case, those cases, together with the absence of any other state court decision holding securities transactions subject to the state’s Unfair Trade Practices Act, provide some indication of the general scope of such acts.
We also find it significant that § 75-1.1 is reproduced verbatim from § 5 of the FTC Act, 15 U.S.C. § 45(a)(1) (1982), and that the courts interpreting and applying § 75-1.1 have deemed it appropriate “to look to the federal decisions interpreting the FTC Act for guidance in construing the meaning of G.S. § 75-1.1.” Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 262, 266 S.E.2d 610, 620 (1980) (citing Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975)). See also ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984). Thus, the fact that no federal court decision has applied § 5(a)(1) of the FTC Act to securities transactions is additional evidence of the scope of § 75-1.-I. Moreover, at least one district court has relied upon the scope of § 5(a)(1) of the FTC Act in holding that securities transactions were not subject to a Massachusetts statute which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conkling v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 575 F.Supp. 760, 761 (D.Mass.1983) (interpreting Mass.Gen.Laws Ann. ch. 93A § 2(a) (1972)). Accord, Sweeney v. Keystone Provident Life Insurance Co., 578 F.Supp. 31, 35 (D.Mass.1983).
The plaintiffs argue that § 75-1.1 applies to securities transactions because North Carolina courts have applied that section in a variety of commercial settings. See, e.g., Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980) (transaction between a mortgage broker and a borrower for the exclusive right to place permanent mortgage financing); Kent v. Humphries, 50 N.C.App. 580, 275 S.E.2d 176 (1981), aff'd and modified, 303 N.C. 675, 281 S.E.2d 43 (1981) (rental of commercial property); Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271 (1980) (unfair methods of competition in the insurance business). See also United Roasters, Inc. v. Colgate-Palmolive Co., 485 F.Supp. 1041 (E.D.N.C. 1979), aff'd on other grounds, 649 F.2d 985 (4th Cir.1981), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981) (bulk sale of business’ assets); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir. 1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (antitrust action brought by tire dealer against tire manufacturer). While it is true that North Carolina and federal courts have applied § 75-1.1 in a variety of commercial settings, that fact does not mean that § 75-1.1 applies to all commercial transactions or to securities transactions. Nor does it mean that the purposes behind the enactment of § 75-1.1 may no longer serve as some indication of its scope. In most of the cases cited above, the defendants anti-competitive conduct necessarily injured the consuming public.
We think that the North Carolina Supreme Court would hold, if presented with this issue, that securities transactions are beyond the scope of § 75-1.1. Our decision is consistent with § 75-1.1’s purpose to protect the consuming public, the North Carolina eases holding that other federal or state statutes may limit the scope of § 75-1.1, the absence of any other state court decision holding that securities transactions are subject to a similar Unfair Trade Practices Act, and the absence of any federal court decision holding that securities transactions are subject to § 5(a)(1) of the FTC Act. We do not believe that the North Carolina legislature would have intended § 75-1.1, with its treble damages provision, to apply to securities transactions which were already subject to pervasive and intricate regulation under the North Carolina Securities Act, N.C.Gen.Stat. § 78A-1 et seq. (1981), as well as the Securities Act of 1933, 15 U.S.C. § 77a et seq. (1982), and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. (1982). Furthermore, to hold that § 75-1.1 applies to securities transactions could subject those involved with securities transactions to overlapping supervision and enforcement by both the North Carolina Attorney General, who is charged with enforcing § 75-1.1, and the North Carolina Secretary of State, who is charged with enforcing the North Carolina Securities Act. For all of these reasons, we hold that whatever the scope of § 75-1.1, securities transactions are beyond the reach of the North Carolina Unfair Trade Practices Act.
III
The second issue presented is whether the district court abused its discretion in denying the plaintiffs’ motion for a new trial on their claim for breach of fiduciary duty. It is well settled that “the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal, save in the most exceptional circumstances.” Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir.1941); City of Richmond v. Atlantic Co., 273 F.2d 902, 916-17 (4th Cir.1960). In this case the district court instructed the jury that defendants Cralle, Schoenhut, Bigelow, Rodenhizer and Spann owed a fiduciary duty to the plaintiffs as minority shareholders of Durham Hosiery “as a matter of law.” N.C.Gen.Stat. § 55-35 (1982). The district court likewise instructed the jury that if it found that defendant Barnett was a majority shareholder of Durham Hosiery at the time the Proxy Statement was issued, a fiduciary relationship also existed between Barnett and the plaintiffs as a matter of law. The plaintiffs do not challenge the district court’s charge to the jury but argue that the verdict is against the manifest weight of the evidence. Based upon our review of the record, we are unable to conclude that the district court abused its discretion in denying the plaintiffs’ motion for a new trial. Accordingly, the judgment of the district court is
AFFIRMED.
. This action is but one of several in the federal courts arising out of the merger and reorganization of Durham Hosiery Mills, Inc. In White v. Durham Hosiery Mills, Inc., 753 F.2d 1072 (4th Cir.1985), another panel of this Court affirmed a jury verdict awarding a former minority shareholder compensatory damages of $25,900 and punitive damages of $50,000 on his action for misrepresentation under Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983). Two actions brought by five other shareholders are presently pending in the United States District Court for the Middle District of North Carolina. See Umstead v. Durham Hosiery Mills, Inc., 578 F.Supp. 342 (M.D.N.C.1984); Teer v. Durham Hosiery Mills, Inc., 592 F.Supp. 1269 (1984).
. On January 9, 1981, plaintiff Lindner filed a complaint in the district court for the Western District of Virginia for the purpose of obtaining an injunction to postpone the shareholder meeting scheduled for January 12. On the morning of January 12, however, the district court concluded that Lindner had failed to show any irreparable injury from the holding of the meeting and the merger due to the availability of his appraisal remedy under state law.
. But see Hickey v. Howard, 598 F.Supp. 1105 (D.Mass.1984) (holding that Massachusetts statute proscribing unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce, and providing for treble damages, is applicable to securities transactions); Mitchelson v. Aviation Simulation Technology, Inc., 582 F.Supp. 1 (D.Mass. 1983) (same). However, two other judges in the United States District Court for the District of Massachusetts have held that this Massachusetts statute does not apply to securities transactions. See Moseley and Sweeney, infra.
. This fact makes the instant case clearly distinguishable from ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir.1983), and Bostic Oil Corp. v. Michelin Tire Corp., 702 F.2d 1207 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983). In those cases this court held that proof of conduct violative of § 1 of the Sherman Act is proof sufficient to establish a violation of the North Carolina and South Carolina Unfair Trade Practices Acts. But a key to those decisions was this court’s observation that "it is an accepted tenet of basic antitrust law that § 5 of the [FTC] Act sweeps within its prohibitory scope conduct also condemned by § 1 of the Sherman Act." ITCO, 722 F.2d at 48 (citing FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); FTC v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922)).
. See footnote 3, supra.
. See footnote 4, supra.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_typeiss | C | 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.
James B. LATTA, Appellant, v. Hilbert S. SABIN, Appellee.
No. 17664.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 8, 1964.
Decided Feb. 20, 1964.
Mr. Earl H. Davis, Washington, D. C., with whom Mr. Donald S. Caruthers, Washington, D. C., was on the brief, for appellant.
Mr. J. Joseph Barse, Washington, D. C., with whom Messrs. H. Mason Welch and J. Harry Welch, Washington, D. C., were on the brief, for appellee. Mr. James A. Welch, Washington, D. C., also entered an appearance for appellee.
Before Danaher, Bastían and McGowan, Circuit Judges.
DANAHER, Circuit Judge.
The District Judge directed a verdict in favor of the appellee on the issue of negligence in a malpractice action. The appellant did not sustain his burden of proving that the surgeon had failed to exercise that degree of care and skill required by the standard of practice which the appellee was bound to afford to the appellant as his patient. The appellant’s claims as to breach of warranty and unauthorized operation were submitted to the jury pursuant to adequate instructions, adapted to the issues.
The jury returned a verdict in favor of the appellant awarding damages equal to the amount of the surgeon’s charge for his services. The award is now attacked, as grossly inadequate.
The jury might have decided that except for a comparatively minor phase of the surgery, the special damages claimed by appellant were actually attributable to a later operation by other surgeons. The jury might also have concluded that no credence could be placed in the appellant’s claim that the doctor had warranted a particular result. In any event, no special interrogatories had been submitted to the jury, and its general verdict is not without support in the record. The trial judge denied the appellant’s motion for a new trial. Our review of the record does not disclose such abuse of discretion as to require reversal.
We have examined other contentions of the appellant in respect of certain rulings on evidence as to which we find no error.
The judgment of the District Court is
Affirmed.
. Rodgers v. Lawson, 83 U.S.App.D.C. 281, 170 F.2d 157 (1948); and see Brown v. Keaveny, 117 U.S.App.D.C. -, 326 F.2d 660 (rehearing en banc denied).
. Hulett v. Brinson, 97 U.S.App.D.C. 139, 140, 229 F.2d 22, 23, cert. denied, 350 U.S. 1014, 76 S.Ct. 659, 100 L.Ed. 874 (1956) ; cf. Muldrow v. Daly, 117 U.S.App.D.C. -, -F.2d- (1964) ; Association of Western Railways v. Riss & Company, 112 U.S.App.D.C. 49, 52, 299 F.2d 133, 136, cert. denied, 370 U.S. 916, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962).
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_r_state | 1 | 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.
Houston McELROY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
No. 71-2997.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 2, 1972.
Rehearing Denied April 4, 1972.
Before JOHN R. BROWN, Chief Judge, and INGRAHAM, and RONEY, Circuit Judges.
Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
Affirmed. See Local Rule 21.
. In his habeas petition filed below, the appellant contended that he was convicted on the basis of insufficient evidence, and that his privately-retained counsel rendered ineffective representation.
. See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966.
Question: 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.
Answer: |
songer_weightev | D | 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".
Irma Jean PEREZ, Plaintiff-Appellant, v. Wayne A. SIMMONS; James Nalls; Thomas Miller; Mark Meske; and City of Santa Barbara, Defendants-Appellees.
No. 86-6663.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 7, 1988.
Decided Oct. 26, 1988.
Amended Aug. 31, 1989.
John M. Sink, Santa Barbara, Cal., for plaintiff-appellant.
David K. Hughes, Asst. City Atty., and Kristofer Kallman, Santa Barbara, Cal., for defendants-appellees.
Before HUG, ALARCON and KOZINSKI, Circuit Judges.
HUG, Circuit Judge:
An opinion in this case was filed on October 26, 1988, Perez v. Simmons, 859 F.2d 1411 (9th Cir.1988). Appellees petitioned for a writ of certiorari to the United States Supreme Court. In response to the petition, the Court vacated the judgment and remanded to our court for further consideration in light of City of Canton v. Harris, — U.S. —, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Simmons v. Perez, — U.S. —, 109 S.Ct. 1736, 104 L.Ed.2d 174 (1989). On further consideration, in light of that case, we file this amended opinion.
Plaintiff Irma Perez brought this section 1983 action against the City of Santa Barbara and certain police officers alleging that the officers violated her constitutional rights by entering her house unlawfully in search of her brother. The district judge granted a directed verdict in favor of the City, and a jury found in favor of the remaining defendants. In this appeal, Perez alleges error in the jury instructions and error in granting the directed verdict. We have jurisdiction under 28 U.S.C. § 1291 (1982). We reverse.
I.
FACTS
On March 8, 1983, Irma Perez was living in a three-bedroom apartment at 13 South Soledad Street, in Santa Barbara, California. She had lived there over three years with her children.
Irma Perez had a brother named Albert who, Irma testified, never lived in her apartment. Albert was on probation and also had warrants outstanding for his arrest. Officers Nalls, Simmons, and Miller of the Santa Barbara Police Department narcotics detail were aware of the arrest warrants. Between October and December of 1982, the officers went three or four times to the residence of Albert’s other sister, Debbie, to contact Albert. Debbie lived across town from Irma on Bath Street. This was the residence address that Albert had given to the police when he was arrested on August 21, 1982, and this was the address used by the probation department. When the officers spoke with Debbie on those occasions, they informed her of the warrants for Albert’s arrest. She informed them that Albert was not residing there any longer and she did not know where he was living.
In the early afternoon of March 8, 1983, the three officers were driving in an unmarked vehicle on Carpintería Street and approached the intersection of South Sole-dad Street. They spotted Albert Perez walking toward them on Soledad Street, in the same block where Irma Perez lived in the apartment complex. When Albert saw them, he immediately turned and headed in the direction of the apartment. Detective Miller got out of the car while the others drove to a parking place. The three then walked through the apartment complex but saw no trace of Albert.
Sergeant Nalls then recalled that he had participated in an arrest of Albert Perez in July of 1980 on Soledad Street in front of the same complex. He further recalled that, at that time, a relative of Albert’s named Irma Perez was living in the complex, but he could not remember which apartment she lived in. Additionally, Detective Miller remembered that in early 1982, he had talked to Albert in this area. At that time, Albert said he was residing at the complex (according to Detective Miller’s testimony).
Not knowing which apartment Irma Perez lived in, the three officers radioed the police dispatcher, asking for the address that was marked on Albert Perez’s 1980 arrest report. Because the dispatcher was unable to assist, the officers drove to a nearby telephone and called the Santa Barbara Sheriffs narcotics detail to obtain the address. Detective Simmons was told that the address was apartment number 3 at 13 Soledad Street. While driving back to the apartment complex, a detective’s message came over the radio. Sergeant Nalls testified that he interpreted the detective to have said that Albert lived in Apt. 3. When the officers asked the dispatcher to cross-index the address, the dispatcher informed them that Irma Perez lived at apartment 3.
The officers planned to search the apartment and radioed for assistance from a uniformed officer. As they were waiting for the backup car, Detective Miller observed a Mr. William Roberts exit the complex. Detectives Miller and Simmons knew Roberts, since they previously had arrested him. Detective Miller approached Roberts and asked which apartment Albert Perez lived in. According to Detective Miller’s testimony, Roberts responded that Albert lived in Apt. 3, and when asked if that was Irma’s apartment, Roberts responded that it was. Detective Miller also testified that he asked Roberts if he had seen Albert recently, and Roberts replied that he had not. Roberts’ testimony conflicted with Miller’s; Roberts testified that he told the officers Albert did not live there, but that he had seen Albert walking down the street five or ten minutes earlier.
When the uniformed police officer — Officer Meske — arrived, all four officers went to Apt. 3 intending to apprehend Albert, though they had no arrest warrants with them. Detective Simmons’ testimony at trial indicated that the officers believed Albert was staying at Irma’s apartment. Sergeant Nalls testified that he did not check with any city agency to determine whether the apartment was listed to anyone in addition to Irma Perez. Indeed, the defendants do not now claim that any such check was made. Sergeant Nalls testified at trial that the idea of obtaining a search warrant to search Irma Perez’s apartment “just didn’t occur to [him].”
Sergeant Nalls went to the rear of the apartment, and the other three officers went to the front door, knocked, and stated that they were police officers looking for Albert Perez, that they believed he was in the apartment, and that they had a warrant for his arrest. They then requested consent to search. Detective Miller testified that Irma Perez opened the door and stated that Albert was not there, did not live there, and had never lived there. She demanded to see the arrest warrant. When the officers failed to produce it, she refused to consent to a search and began closing the door. At that point, Detectives Simmons and Miller shoved open the door and all of the officers entered.
The three plainclothes officers went upstairs and Officer Meske stayed downstairs. Irma Perez testified that after some conversation between her and Officer Meske, Officer Meske grabbed her from behind, threw her into a wooden rocking chair, and pinned her down with one knee on her leg and both of his hands on both of her wrists. She further testified that after approximately 30 seconds he let her up.
The officers did not find Albert Perez in the apartment. When the officers were on their way out of the apartment, Irma went to the telephone in the kitchen and dialed 911. She told the dispatcher that she wanted to “speak to somebody about policemen harassing me.... ” The dispatcher told her to call the non-emergency number for the police. When she was about to make a second call, one of the officers cut off the call by depressing the receiver. Perez testified that she threw the telephone to the floor in anger. She was then spun around, thrown against the wall, handcuffed and told she was under arrest for harboring a fugitive.
Perez testified that she was led out the door in front of gathering neighbors to the police car, and was thrown into the vehicle with such force that her right shoulder slammed against the door frame, causing her pain. Irma was first taken to the Santa Barbara police station, and then to jail. She was released after posting $250 bail. The district attorney declined to prosecute her.
Perez brought this action under 42 U.S.C. § 1983 against the City of Santa Barbara and the four officers who entered her house. She claimed that the officers violated her civil rights by: (1) unlawfully searching her apartment without her consent or a search warrant; (2) falsely arresting her for harboring a fugitive; (3) using excessive force against her prior to and during the arrest; and (4) depriving her of her rights to free speech by preventing her from making the second phone call to the police and by arresting her in retaliation for insulting comments she directed at them. Her first cause of action was against the four police officers, and her second cause of action was against the City on a theory of municipal liability.
The case was tried before a jury. Upon conclusion of Perez’s case-in-chief, the court granted the City’s motion for a directed verdict and dismissed the second cause of action. The first cause of action was sent to the jury. The jury was provided a special verdict form which segregated issues of qualified immunity from issues of whether Perez’s constitutional rights were violated. The jury unanimously found that the police officers did not violate any of Perez’s constitutional rights; thus, they failed to reach any issues of qualified immunity.
On appeal, Perez challenges several of the jury instructions. Because we find reversible error in the instructions pertaining to the entry and search of her home, we need not address whether the other instructions were proper. We also conclude that the directed verdict in favor of the City was granted in error.
II.
JURY INSTRUCTIONS
We must determine “whether, viewing the jury instructions as a whole, the trial judge gave adequate instructions on each element of the case to ensure that the jury fully understood the issues.” Los Angeles Memorial Coliseum Comm. v. Nat’l Football League, 726 F.2d 1381, 1398 (9th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). The trial court has broad discretion in formulating instructions and will be reversed only upon a showing of an abuse of discretion. United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985).
The trial judge gave the following instructions to the jury on the issue of whether the officers violated Perez’s constitutional rights by forcibly entering into and searching her residence:
Under the Fourth Amendment, an arrest warrant is alone sufficient to authorize the entry into a person’s home to effect an arrest. If you find that the police officers had reasonable cause to believe that the plaintiff’s apartment was inhabited by Albert Perez at the time of the entry and the search, and they had reason to believe that Albert Perez was within the apartment, then the entry and search were constitutionally valid.
In determining whether a search is reasonable under the Fourth Amendment, an inhabited residence is a place of occupancy, and is not restricted to a person’s permanent home.
(Emphasis added.)
The difficulty we have with the instruction lies in the definition of an inhabited residence as merely a place of occupancy. This leaves the jury with the understanding that any sort of temporary occupancy by one person of the home of another can subject that other person to a search of his or her home without a search warrant. We begin our analysis by noting the “ ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable,” and that “[ajbsent exigent circumstances, [the] threshold [of a home] may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 586, 590, 100 S.Ct. 1371, 1380, 1382, 63 L.Ed.2d 639 (1980).
In Payton, the Court held that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Id. at 603, 100 S.Ct. at 1388 (emphasis added). However, in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), the Court made it equally clear that, absent exigent circumstances, an arrest warrant does not justify entry into a third person’s home to search for the subject of the arrest warrant. A search warrant is needed to protect the rights of the homeowner. Id. at 206, 101 S.Ct. at 1644.
In formulating this rule, the Court examined the purposes to be served by the two kinds of warrants. The Court noted, “[W]hile an arrest warrant and a search warrant both serve to subject the probable-cause determination of the police to judicial review, the interests protected by the two warrants differ.” Id. at 212-13, 101 S.Ct. at 1647-48. The Court noted that an arrest warrant “primarily served to protect an individual from an unreasonable seizure,” while a search warrant “safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police.” Id. at 213, 101 S.Ct. at 1648. In Steagald, the officers relied upon an arrest warrant to enter the home of a third person in which the subject of the arrest warrant was thought to be. Id. at 212, 213, 101 S.Ct. at 1647, 1648. The Court explained that while the arrest warrant protected the interests of the suspect, “it did absolutely nothing to protect [the homeowner’s] privacy interest in being free from an unreasonable invasion and search of his home.” Id. at 213, 101 S.Ct. at 1648.
In this ease, we are faced with a situation which falls between Steagald and Payton. The officers had an arrest warrant for Albert Perez. They could have legally entered his home to seize him. Yet they used it to enter the home of his sister, Irma, on the apparent belief that Albert had been staying there. If Albert had been an actual co-resident in the apartment, the search would have been legal because the arrest warrant authorizes entry into the suspect’s own home, even if that home is shared by others. See United States v. Ramirez, 770 F.2d 1458, 1460 (9th Cir.1985). However, if Albert did not actually reside in the apartment, the search was illegal under Steagald.
The question presented to us by this case is what constitutes a person’s “home” within the meaning of Payton and Steag-ald. Here there was some evidence that Albert occasionally spent the night at Irma’s home. We must decide whether this temporary occupancy sufficed to make the apartment Albert’s home as well so as to allow entry based on simply a warrant for Albert’s arrest. The instructions to the jury stated that for purposes of determining Irma’s Fourth Amendment rights, the search was legal if the police officers had reasonable cause to believe that Irma’s apartment was “inhabited” by Albert at the time of the search. The court further instructed, “[a]n inhabited residence is a place of occupancy, and is not restricted to a person’s permanent home.” The court thus conveyed a clear impression to the jury that a search warrant was not needed if Albert was temporarily staying at Irma’s apartment.
We find error in that instruction. Irma’s Fourth Amendment rights revolve around her expectation of privacy in her own home. It is unlikely this expectation was lowered substantially when she allowed her brother to stay with her temporarily. She could not have considered Albert a co-resident simply because he occupied her apartment for a short while. The Fourth Amendment’s protection against unreasonable searches in a person’s home is not diminished by the mere presence of a guest in the home. Payton allows entry into the suspect’s actual home to execute an arrest warrant for the suspect. See Payton, 445 U.S. at 603, 100 S.Ct. at 1388. (“[A]n arrest warrant ... carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” (Emphasis added)). The Court made it very clear in Steagald that the Fourth Amendment does not allow entry into a third person’s home without a search warrant. We would im-permissibly diminish the protection offered by Steagald were we to hold that, for purposes of the homeowner’s Fourth Amendment rights, the dwelling is the “home” of whoever happens to be staying there.
The defendants assert that “for Fourth Amendment purposes, staying somewhere for a short period of time may be temporarily equivalent to a home.” Though this assertion might be true for some Fourth Amendment purposes, it has no force in the case at hand. The privacy interest protected by the Fourth Amendment is personal to the individual asserting it. See Steagald, 451 U.S. at 219, 101 S.Ct. at 1651. The cases cited by the defendants involve the constitutional rights of accused persons who temporarily stay in a place. See, e.g., United States v. Grandstaff, 813 F.2d 1353 (9th Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 119, 98 L.Ed.2d 78 (1987); Eng Fung Jem v. United States, 281 F.2d 803 (9th Cir.1960); Fequer v. United States, 302 F.2d 214, 249 (8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962); United States v. Bulman, 667 F.2d 1374, 1382-84 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). The issue in those cases is whether suspects have a reasonable expectation of privacy in a place of temporary occupancy. For these purposes, a hotel room has been held to be the equivalent of a home. See Eng Fung Jem, 281 F.2d at 804-05; Fequer, 302 F.2d at 249; Bulman, 667 F.2d at 1384. Those cases have little to do with this one, where an actual resident of the home asserts Fourth Amendment rights. As the Supreme Court stated in Steagald, “The issue here ... is not whether the subject of an arrest warrant can object to the absence of a search warrant [for] .. another person’s home, but rather whether the residents of that home can complain of the search.” Steagald, 451 U.S. at 219, 101 S.Ct. at 1651.
The privacy interests underlying Albert’s and Irma’s rights are markedly different. It may be true that if Albert’s Fourth Amendment rights were at issue, Irma Perez’s apartment might be considered his “residence,” even though it was a very temporary place of occupancy. But it simply does not follow that, when analyzing Irma’s constitutional rights, Albert must be considered a co-resident just because he spent the night there on occasion. On the contrary, when assessing whether the search violated Irma’s rights, Albert must be considered a guest in her home if he stayed there only on a temporary basis.
A close reading of Steagald suggests that the circumstances in this case are similar to those in Steagald. In Steagald, the police received an anonymous phone call from an informant who stated that the subject of an arrest warrant — Ricky Lyons — might be reached at a certain phone number. The phone number was listed to a person other than Lyons. See Steagald, sub nom United States v. Gaultney, 606 F.2d 540, 543 (5th Cir.1979) (discussion of facts). During the next four days the police had several other conversations with the informant in which the informant told them that Lyons was at the same location. See id. The facts imply that Lyons stayed at the residence for at least a few days, and the Supreme Court noted that the police officers believed Lyons was a guest at the house. Steagald, 451 U.S. at 213, 101 S.Ct. at 1648. The Supreme Court, however, did not view the house as Lyons’ residence. Similarly, we do not view Irma Perez’s apartment as Albert’s residence even though he may have occasionally spent a night there.
We hold that the trial judge erred in instructing the jury that, for the purposes of determining Irma Perez’s Fourth Amendment rights, her residence could be considered Albert’s home even if he did not permanently reside there. Unless a jury finds that Albert was an actual co-resident of the apartment, and that the police had reasonable grounds for believing Albert was in the apartment at the time, see Payton, 445 U.S. at 603, 100 S.Ct. at 1388, the search was in violation of Irma Perez’s constitutional rights. The Fourth Amendment right to be secure against warrant-less searches within the home is too vital to justify entry without a search warrant to execute an arrest warrant upon a guest in the home, absent exigent circumstances. See Steagald, 451 U.S. at 221, 101 S.Ct. at 1652.
III.
DIRECTED VERDICT
In her second cause of action, Perez seeks to hold the City liable for her claimed constitutional injury because she attributes the illegal search of her apartment to inadequate training received by the City’s officers. The district court granted a directed verdict in favor of the City, which we review de novo. West Am. Corp. v. Vaughan-Bassett Furniture Co., 765 F.2d 932, 934 (9th Cir.1985). The evidence must be viewed in the light most favorable to Perez, and all inferences must be drawn in her favor. Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1219 (9th Cir.1983), cert. denied, 471 U.S. 1007, 105 S.Ct. 1874, 85 L.Ed.2d 166 (1985). A directed verdict is appropriate when the evidence permits only one reasonable conclusion as to the verdict. Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir.1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986).
The law of the circuit at the time of trial was that a city could be held liable under section 1983 for the constitutional violations of its police officers if the violation resulted from a municipal policy or custom. We held that a practice of gross negligence in training or supervision is a policy giving rise to municipal liability under section 1983. Bergquist v. County of Cochise, 806 F.2d 1364, 1370 (9th Cir.1986). This could result in municipal liability if the plaintiff established a direct causal link between the gross negligence in training and the constitutional deprivation. Id. at 1369-70. Applying these standards, we held that the trial court erred in granting the directed verdict because the evidence could have permitted a finding of municipal liability.
Since the trial and our judgment on appeal, the Supreme Court has articulated the circumstances in which a municipality can be held liable for inadequate police training, specifying a standard of deliberate indifference. City of Canton v. Harris, — U.S. —, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Supreme Court vacated our earlier judgment on appeal in this case and remanded for our consideration in light of City of Canton. Simmons v. Perez, — U.S. —, 109 S.Ct. 1736, 104 L.Ed.2d 174 (1989).
The Court articulated its newly announced standard as follows:
[T]he inadequacy of policy training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.
But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.
City of Canton, 109 S.Ct. at 1204-05 (footnote 10 omitted). In footnote 10 of the opinion, which is referenced to this quotation, the Court cited two examples of situations in which a jury could reasonably find that a failure to train or inadequate training could amount to deliberate indifference.
In City of Canton, the Court noted that the standard of proof the district court had imposed was one consistent with Sixth Circuit precedent but lesser than the standard announced by the Court. The Court stated
Whether respondent should have an opportunity to prove her case under the “deliberate indifference” rule we have adopted is a matter for the Court of Appeals to deal with on remand.
Id. at 1207. Justice Brennan, in his concurring opinion, stated, “The Court’s opinion, which I join, makes clear that the Court of Appeals is free to remand this case for a new trial.” Id.
The situation is similar in this case and we deem the appropriate action is to remand this claim against the City for retrial under the newly announced standards. Whether a directed verdict for the City would be appropriate in light of evidence produced at retrial would then be appropriate for the district judge to determine in the first instance.
IV.
CONCLUSION
We reverse the district court’s judgment and remand for proceedings consistent with this opinion.
REVERSED and REMANDED.
. The conversation was recorded on a dispatcher tape; however, the tape is muffled and does not clearly reveal the detective’s precise words.
. The defendants argue that Perez has waived her right to challenge the instructions, contending that she failed to object to the instructions with sufficient specificity. See Fed.R.Civ.P. 51. We find that her objections were adequately specific to meet the requirements of Rule 51.
. Albert Perez testified in depositions that, prior to the incident, he typically spent the night at Irma’s apartment two or three times a month for the purpose of babysitting her children. 6 RT 53. Irma Perez testified that, when Albert babysat her children overnight, he slept on a sofa, located downstairs in the living room. 2 RT 108, 65.
. The defendants do not claim that there were any exigent circumstances in this case.
Question: 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?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_usc1 | 18 | 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.
UNITED STATES of America, Plaintiff-Appellee, v. Truman TALK, Defendant-Appellant.
No. 133-69.
United States Court of Appeals Tenth Circuit.
Nov. 20, 1969.
Martin E. Threet, Albuquerque, N. M., for defendant-appellant.
Victor R. Ortega, U. S. Atty. (Ruth C. Streeter, former U. S. Atty., and John A. Babington, Asst. U. S. Atty., on the brief), for plaintiff-appellee.
Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and THEIS, District Judge.
THEIS, District Judge.
Appellant in this case was charged with the crime of rape on an Indian Reservation, in violation of 18 U.S.C.A. § 1153. In the first trial the jury was unable to reach a verdict. At a second trial he was tried again, convicted, and sentenced to twenty years in prison, with provisions for parole as set forth in 18 U.S.C.A. § 4208(a) (2).
The facts are simple. On the night of July 12, 1968, within the boundaries of the Navajo Indian Reservation, Gloria Mae Begay, a thirteen-year old Indian girl, was seized by the appellant and dragged to a secluded spot at the rear of a drive-in movie theater. With his fists and by beating her with a chain, the appellant physically abused the girl. Thereafter, he, along with five other young Indians, commenced to rape the girl. During the course of the attack a police car drove by, causing the appellant and those with him to run. The girl went to the police car and made her complaint.
On this appeal, appellant brings to this Court only two questions concerning error by the trial court: one bearing on the prosecution’s cross-examination of the appellant about a previous assault on, and the validity of his claimed marriage to, one Alice Johnson; and the other concerning the trial court’s refusal to disclose the contents of the pre-sentence report to the appellant prior to sentencing.
As to appellant’s first contention, at the trial and after the appellant had testified on direct examination that he was married to Alice Johnson and enjoyed a satisfactory sexual life, the following occurred on cross-examination:
“Q. (Mr. Watkins [Assistant U. S. Attorney] continuing.) Truman, you said you were married to Alice Johnson, is that correct?
A. That’s correct.
Q. When were you married to Alice Johnson?
A. I got married to Alice Johnson— well, I didn’t took our blood tests, March 15, we got married May 15.
Q. Isn’t it true, Truman, that in June of 1968 that you and Alice Johnson were engaged tobe married but that you got mad at her and threw her out of a moving car and broke her shoulder ?
MR. THREET: [Appellant’s attorney] Your Honor—
Q. (Mr. Watkins continuing.) She never married you?
MR. THREET: — this is getting into matters—
MR. WATKINS: Your Honor, he says he’s married. I want to find out if he really is.
THE COURT: You might ask him about being married, but all of this other will be stricken and the jury advised not to consider it.” (Emphasis added.)
On the basis of the italicized question above, appellant’s counsel moved for a mistrial at the close of the evidence and moved for a new trial after the guilty verdict was received. Both motions were denied by the trial court. Appellant now contends those rulings were error. We do not agree.
In order to place the question of the United States Attorney in proper perspective, it is necessary to examine the Government’s case and certain events that transpired during the course of the trial, appearing in the record before us. On direct examination the appellant Talk, who had taken the stand in his own defense, told the jury that he was married to Alice Johnson, and that his sex life had been satisfactory. The transcript further shows in the colloquy of counsel before the trial court, that the United States Attorney had stated that Miss Johnson was unavailable as a witness because she gave birth to a child on the second day of the trial, and that the prosecutor had in his hand at the time the objectionable question was asked, an investigatory statement given by Miss Johnson denying that she ever married Talk, and telling how her injury, when pushed from Talk’s car in June, 1968, ended their relationship a month before commission of the crime on which the instant prosecution was based.
It is fundamental that the trial court has broad discretionary powers in permitting or limiting cross-examination. See Jennings v. United States, 364 F.2d 513 (10 Cir. 1966), cert. den. 385 U.S. 1030, 87 S.Ct. 760, 17 L.Ed.2d 677. Further, the exercise of that discretion will be overruled only upon abuse thereof which is clearly shown. See McManaman v. United States, 327 F.2d 21 (10 Cir. 1964), cert. den. Jenkins v. United States, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964).
As has been seen, in the instant setting the subject of the appellant’s marriage and satisfactory sexual life had been raised during direct examination when he took the witness stand in his own defense. The general rule regarding cross-examination of a defendant is that it should be limited to matters embraced within the direct examination. See Lewis v. United States, 373 F.2d 576 (9 Cir. 1967), cert. den. 389 U.S. 880, 88 S.Ct. 116, 19 L.Ed.2d 173. Since the defendant raised the issue of being happily married during his direct testimony, it appears clear to us that the United States was justified in questioning him regarding that marriage on cross-examination.
Appellant claims also that the question prejudiced him in that it mentioned a previous offense under New Mexico law, i. e., aggravated battery. See Section 40A-3-5, N.M.S.A., 1953 Comp. Of course, an accused cannot be convicted upon evidence that he committed another offense, and ordinarily evidence tending to show the commission of a crime wholly separate from, independent of, and without any relation to the one laid in the indictment or information in the case on trial is not admissible. See O’Dell v. United States, 251 F.2d 704 (10 Cir. 1958); Morgan v. United States, 355 F.2d 43, 45 (10 Cir. 1966); . and King v. United States, 402 F.2d 289 (10 Cir. 1968). However, this rule is not absolute. Evidence which goes toward proving a material fact in the case is admissible even if it incidentally shows that the accused committed another offense at a different time and place. If such evidence is material to any issue in the case, it should be admitted. See Fitts v. United States, 284 F.2d 108 (10 Cir. 1960); and Cram v. United States, 316 F.2d 542 (10 Cir. 1963).
Keeping this in mind, and remembering that the appellant had come forth with testimony about a satisfactory marriage, it is apparent to us that the United States did not go beyond the proper scope of cross-examination when it asked the question which is the subject of this appeal. Further, we do not find that the United States prejudiced the appellant by asking the question. Since the appellant had put in issue the fact of his satisfactory marriage, the government was entitled to. rebut it, and could do so even if its evidence contained reference to another unrelated offense. Thus, we cannot perceive that the material in the question substantially affected the rights of the appellant, especially when it is remembered that the trial judge sustained the appellant’s objection to the question and instructed the jury to disregard it.
Appellant’s second point, wherein he contends that the sentencing court abused its discretion when it refused to allow the appellant to see the presentence report or to advise him of the contents thereof, requires little attention. It suffices to point to our previous holdings, which clearly show the question to be without merit. In the circumstances of the present case, we do not believe it was an abuse of discretion by the trial court to refuse appellant access to the pre-sentence report or the information contained therein. See Hoover v. United States, 268 F.2d 787 (10 Cir. 1959); Roddy v. United States, 296 F.2d 9 (10 Cir. 1961); Thompson v. United States, 381 F.2d 664 (10 Cir. 1967); and Cook v. Willingham, 400 F.2d 885 (10 Cir. 1968).
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_respond2_1_3 | F | 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.
COLORADO PUMP & SUPPLY COMPANY, a Colorado corporation, Plaintiff-Appellant, v. FEBCO, INCORPORATED, a corporation, et al., Defendants-Appellees.
No. 72-1204.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Sept. 19, 1972.
Decided Jan. 5, 1973.
Rehearing Denied Feb. 7, 1973.
James C. Bull, Denver, Colo. (Creamer & Creamer and Quiat & Quiat, Denver, Colo., on the brief), for plaintiff-appellant.
M. Dee Biesterfeld, Denver, Colo. (E. L. Fraser, Los Angeles, Cal., and Doyle & Biersterfeld, Denver, Colo., on the brief), for defendants-appellees.
Before LEWIS, Chief Judge, and MURRAH and BREITENSTEIN, Circuit Judges.
BREITENSTEIN, Circuit Judge.
In this private antitrust suit the issues are whether actions of defendants-appellees Febeo, Incorporated, and Thompson Pipe & Steel Company violate the federal antitrust laws. The district court held for the defendants and dismissed the action. We affirm.
Febeo manufacturers lawn and turf equipment. Thompson and plaintiff-appellant Colorado Pump & Supply Company are competing wholesale distributors of such equipment in the Colorado area. An important item is the control device for sprinkling systems. Until January 16, 1967, Thompson, Colorado Pump, and other distributors purchased from Febeo and received a 50% discount. Colorado Pump had a franchise agreement with Rainbird, a competitor of Febeo, and limited its Febeo purchases to controllers. The trial court found that other controllers on the market were competitive with, and satisfactory substitutes for, the Febeo controllers.
On the mentioned date Thompson and Febeo made a written agreement whereby Thompson became the exclusive Feb-eo distributor in a geographically defined area. Thompson received a 50/10% discount on package quantities and 50% on broken package quantities. Other contract provisions will be discussed later. After the agreement, Feb-eo refused to sell directly to Colorado Pump which could, and did, purchase Febeo products from Thompson at a 35% discount on parts and 40% discount on complete line equipment. These were the same discounts given all other distributors and jobbers by Thompson.
With the 35% discount Colorado Pump could not make a profit on sales of controllers and discontinued handling the Febeo controller with a resulting loss in business. The complaint alleged that Colorado Pump lost $150,000 in profits; that the actions of Febeo and Thompson violated §§ 1, 2, and 14 of Title 15 U.S.C.; and that Colorado Pump is entitled to treble damages. Trial to the court was had on the issue of liability, with damages reserved for later consideration. The court miade findings of fact and concluded that Febeo and Thompson had not violated the federal antitrust laws.
The contract between Febeo and Thompson authorizes Thompson “to sell within the following territory [here follows a description including Colorado and some adjacent area].” Title to the purchased products passes to Thompson at Febco’s shipping point. Colorado Pump says that these contract provisions are a per se Sherman Act violation because a manufacturer has imposed vertical restrictions as to territory on a product, title to which has passed from the manufacturer to the distributor.
Prime reliance is placed on United States v. Arnold, Schwinn & Co., 388 U. S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249, which Colorado Pump says establishes the rule that if the producer passes dominion and title to the distributor, territorial restrictions imposed by the producer are per se violative of the antitrust laws. In Schwinn, the Court commented that the producer had been “firm and resolute” in its insistence upon the limitations and that firmness “was grounded upon the communicated danger of termination.” 388 U.S. at 372, 87 S.Ct. at 1862. We agree with the Second Circuit that the holding in Schwinn was predicated on the “firm and resolute” insistence on compliance. Janel Sales Corp. v. Lanvin Parfums, Inc., 2 Cir., 396 F.2d 398, 406, cert. denied 393 U.S. 938, 89 S.Ct. 303, 21 L.Ed. 2d 275.
Our case is different from Schwinn. We have no explicit contract restriction. Nothing in the contract forbids, or even touches on, sales by Thompson outside of the territory. The trial court found, and we agree, that the contract “contained no resale restrictions with regard to whom Thompson could sell or at what price.” Further, no “firm and resolute” action of Febeo insisted upon observance of any territorial restriction. The Manager of the Irrigation Division of Thompson testified that although Thompson had not made sales outside of the allocated territory, it was not prohibited from doing so. The Manager of Febeo testified that “there was no authorization or no restriction to my knowledge” on Thompson sales outside of the territory. Our situation is a far cry from that considered in Schwinn.
The contract provision with which we are concerned is no more than a description of a primary marketing territory and as such is not a per se violation. Plastic Packaging Materials, Inc. v. Dow Chemical Co., E.D.Pa., 327 F.Supp. 213, 225; see also Janel Sales Corp. v. Lanvin Parfums, Inc., 2 Cir., 396 F.2d 398, 406, cert. denied 393 U.S. 398, 89 S.Ct. 303, 21 L.Ed.2d 275. Contrary to Colorado Pump’s assertion, Interphoto Corp. v. Minolta Corp., S.D.N.Y., 295 F.Supp. 711, aff’d 2 Cir., 417 F.2d 621, did not hold that a per se violation could be found on the basis of a mere contractual provision. In that case, the court found that Minolta had persistently advised its distributor against unwanted incursions into restricted areas. 295 F.Supp. at 720. The record before us is devoid of any suggestion that Febeo had even admonished Thompson to confine its sales to the described territory.
In our opinion the attacked contract provision is not a per se Sherman Act violation. When coupled with the other evidence in the record, it shows no violation. A manufacturer may select the customers to whom he will sell so long as his conduct has no monopolistic or market control purpose. New Home Appliance Center v. Thompson, 10 Cir., 250 F.2d 881, 884. Here we have no price fixing and no evidence of market control. The trial court found that the marketing of lawn and turf equipment “is highly competitive on a national and regional basis.” We have nothing more than a vertical confinement of sales to a selected customer of a product which is competitively available from others. This is not enough to establish a Sherman Act violation. Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 9 Cir., 416 F.2d 71, 76, cert. denied 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755, and cases there cited.
Under the contract, Thompson was obligated to “maintain adequate inventories of products and parts which will enable Distributor to offer for sale a complete line of said products and service them after installation.” Colorado Pump argues that this is an impermissible tying arrangement in that the requirement that the complete line be stocked is tied to the right to acquire the desirable Febeo controller. A tying arrangement is an agreement by a party to sell a product but only on the condition that the buyer also purchases a different (or tied) product or at least agrees that he will not purchase that product from any other supplier. Northern Pac. R. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 2 L.Ed.2d 545.
A tying arrangement is a per se Sherman Act violation if (1) the seller has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product, and (2) a “not insubstantial” amount of commerce is foreclosed to competitors. Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 499-500, 89 S.Ct. 1252, 22 L.Ed.2d 495, quoting Northern Pac. R. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 2 L.Ed.2d 545.
The claim of adverse economic impact rests upon the desirability of the Febeo controller. Although there was evidence that Colorado Pump considered the Feb-eo controller to be superior, there was none that Thompson, the supposed victim of the tying arrangement, was of the same opinion. Competent evidence of the availability and suitability of alternative products was relevant. Elder-Beerman Stores Corp. v. Federated Department Stores, Inc., 6 Cir., 459 F.2d 138, 144. The trial court found on conflicting evidence that: “Other controllers on the market were competitive with and satisfactory substitutes for the Febeo controllers.” This negates any inference of sufficient economic power to restrain free competition. It should be noted in passing that here we have no conditioning of the right to purchase controllers on the purchase of worthless products, no evidence of the imposition of burdensome terms by Febeo, no restriction on the right of Thompson to distribute products in competition with those of Febeo, no evidence that the prices of the balance of the Febeo line were inflated, and no evidence that Feb-eo used any coercion on Thompson.
The other requirement for a per se violation by a tying agreement is the foreclosure of a substantial amount of commerce to competitors. It is conceivable that the need to maintain adequate inventories might affect commerce by providing impetus to sell products of the manufacturer rather than those of another. Be that as it may, there is no evidence of the cost of maintaining the necessary inventory or of its effect on Thompson sales. The trial court held that in the competitive industry Thompson is free to sell products of Febco’s competitors. The mere existence of the requirement that the full line be stocked, without additional information about its competitive impact, does not suffice to establish an unreasonable restraint of trade.'' Cf. Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 325-329, 81 S.Ct. 623, 5 L.Ed.2d 580. We are convinced that the record shows no impermissible tying arrangement.
Colorado Pump argues that a Sherman Act violation, monopolization of the Colorado market, was accomplished through the use of a price discrimination scheme prohibited by the Robinson-Patman Act, 15 U.S.C. § 13. Perhaps it is enough to say that we find nothing in' the record to sustain the claim of monopolization. We also find no Robinson-Patman violation. That Act prohibits price discrimination “between different purchasers” and does not prevent persons selling goods in commerce “from selecting their own customers in bona fide transactions and not in restraint of trade.” After its agreement with Thompson, Febeo stopped selling to Colorado Pump. The record shows only a refusal to deal, not price discrimination. Colorado Pump had to buy Febeo products from Thompson at a greater price than Thompson had to pay but at the same price charged to other purchasers from Thompson. Cherokee Laboratories, Inc. v. Rotary Drilling Services, Inc., 5 Cir., 383 F.2d 97, cert. denied 390 U.S. 904, 88 S.Ct. 816, 19 L.Ed.2d 870, is not in point. The court there recognized the holding in Schwinn that vertical refusals to deal are immunized so long as there are competitive products readily available to others, 388 U.S. at 376, 87 S.Ct. 1856, and held that a jury question was presented on the issue of whether competitive products were available, 383 F.2d at 105. In the instant case, the trier of the fact found that competitive products were available.
Colorado Pump argues that the Febco-Thompson contract contains an impermissible customer restriction. The contract says that “in no event shall Distributor’s retail sales exceed one-third (⅓) of Distributor’s annual sales volume.” As we read the record, this argument was not part of the legal theory upon which the case was tried. Cf. Stephens Industries, Inc. v. Haskins & Sells, 10 Cir., 438 F.2d 357, 361. If it was, no evidence was adduced as to the total sales, the sales to distributors, the sales to retailers, or of any efforts by Febeo to enforce the provision. Nothing shows that the restriction was unreasonable or that any purchaser, wholesale or retail, did or could suffer in the highly competitive industry with adequate substitutes readily available. We find nothing in Schwinn or any other authority holding that the attacked provision is a per se Sherman Act violation.
Finally, Colorado Pump attacks the findings of the trial court on the ground of inadequacy. In our opinion the findings are adequate, sustained by substantial evidence, and not clearly erroneous.
Affirmed.
Question: 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?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_typeiss | B | 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.
Clifford O. BOREN, Appellant, v. R. A. RIDDELL, District Director of Internal Revenue, Appellee.
No. 15203.
United States Court of Appeals Ninth Circuit.
Feb. 19, 1957.
John A. Brant and Torrance & Wan-sley, San Diego, Cal., for appellant.
Charles K. Rice, Asst. Atty. Gen., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Helen A. Buckley, Washington, D. C., Edward R. McHale, Robert H. Wyshak and Bruce I. Hochman, Asst. U. S. Attys., Los Angeles, Cal., for appel-lee.
Before STEPHENS, CHAMBERS and BARNES, Circuit Judges.
BARNES, Circuit Judge.
Appellant sought an injunction in the District Court restraining and enjoining appellee from making any seizure, collection or distraint of any property belonging to appellant under the authority of an assessment for income taxes, interest and penalties made by the Commissioner of Internal Revenue against appellant, for the calendar year 1951. This income tax return appellant had duly filed.
Appellee moved to dismiss, filing a supporting affidavit. The District Court treated the motion as one for summary judgment, heard the matter, and ordered dismissal. This is an appeal from that order of dismissal.
A taxpayer’s right to enjoin the collection of taxes is limited by statute under the Internal Revenue Code of 1954, effective August 17, 1954.
In that Code, § 7421 provides:
“(a) Tax. — Except as provided in sections 6212(a) and (c), and 6213 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.”
§ 6212(a) provides that after the Secretary or his delegate determines there is a deficiency, he “is authorized to send notice of such deficiency to the taxpayer by registered mail.”
§ 6213 provides that within ninety days after the notice authorized in § 6212 is mailed, the taxpayer may file a petition with the Tax Court for a redetermination of the proposed deficiency.
In such an event, § 6212(c) (1) provides that the Secretary or his delegate shall have no right to determine any additional deficiency of the taxpayer for the same taxable year.
Under the Internal Revenue Code of 1939, similar restrictions on the taxpayer’s right of injunction existed.
Section 272, as amended, provided:
“If in the ease of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail * *
This Section then gives the taxpayer the right, within ninety days, to petition for a redetermination of the deficiency, and no assessment, distraint or proceeding in court for collection shall be made, begun, or prosecuted “until such notice has been mailed to the taxpayer, nor until the expiration of such ninety day period,” nor if such a petition is filed, “until the decision of the Board has become final,” and if attempted, “[it] may be enjoined.”
The facts are undisputed. On March 11, 1955, the Commissioner sent a notice of deficiency by registered mail to the taxpayer at the wrong address. This notice is conceded by both parties to be ineffective for any purpose.
On April 14, 1955, the Commissioner mailed a notice of deficiency by ordinary mail to the taxpayer at his correct address. It was received by taxpayer the following day.
The appellant filed no petition for re-determination of the deficiency with the Tax Court at any time.
On July 22 1955 (more than ninety days after the notice had been received) when no action was taken by the taxpayer, appellee gave written notice and demand for payment, and issued a warrant of distraint.
The sole question presented is whether the notice of deficiency so received by the taxpayer is a valid statutory notice. If so, appellant has no defense to the threatened levy and distraint. If not, appellee has no authority to levy and distrain, and should be enjoined from doing so until after notice has been given by registered mail, the expiration of the ninety day period, and the failure of taxpayer to petition.
The earlier cases, particularly those heard by the Tax Court, applied the statutory construction rule, expressio unius est exclusio alterius, and held that “notice by registered letter” meant notice in that way, and in no other way; that notice by ordinary mail, or manual delivery, was insufficient.
“Any other method of notice does not comply with the statute and is invalid. The method directed by the statute is mandatory.”
Day v. Commissioner, 12 B.T.A. 161; Hamilton v. Commissioner, 13 T.Ct. 747, 749; Wilson v. Commissioner, 16 B.T.A. 1280, 1290; Heinemann Chemical Co. v. Heiner, 3 Cir., 1937, 92 F.2d 344; citing Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379, where there appears this language, interpreting the 1924 Act:
“When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” 278 U.S. 282, 49 S.Ct. 129, 132.
But, argues the Government, the statute now has been revised; it does not now so “limit”; it merely “authorizes” one method of giving notice. It points out that the 1924 Act provided that notice “shall be sent by registered mail,” the 1926 Act, § 274(a), 26 U.S.C.A.Int. Rev.Acts, p. 203 was revised to provide that the Government was “authorized” to so send the notice; that this word “is a permissive word at most; ” that the real objective is actual notice. If notice by registered mail was deemed indispensable, runs the Government’s argument, it would have been simple for the Congress to have so provided; i. e., “notice must be served by registered mail.” We believe that this Court should attempt to give effect to the manifest intent of Congress, when it changed the requirement “shall use registered mail,” to the permissive “may use registered mail.” We presume the purpose of using registered mail is first, to provide the safest economical. method of insuring that in the greater majority of cases, notice is actually received by the taxpayer from his Government; second, to create some commonly accepted factual basis to permit, in good conscience, the initiation of the ninety day period against the taxpayer, without requiring the Government to face the almost impossible task of proving actual notice to the taxpayer.
But the heart of the taxpayer’s right is to have actual notice, which enables him to petition his Government if he so desires. This he had here, under the notice he admittedly received by ordinary mail.
We believe a broader interpretation of the language is followed in the more recent court cases. See Commissioner of Internal Revenue v. Stewart, 6 Cir., 186 F.2d 239, 241, 24 A.L.R.2d 793:
“The taxpayer contends that since the statute requires the notice of the deficiency assessment to be sent ‘to the taxpayer by registered mail,’ the action of the Commissioner in sending it to the taxpayer’s auditor and attorney, instead of to the taxpayer himself, was not a compliance with the provisions of the statute, and was therefore an invalid notice. The Tax Court ruled that since the statute limited the way in which the notice could be sent it negatived any other mode of action; that the Commissioner was required to send the notice of deficiency to the taxpayer in strict accord with the statutory requirements; and since he did not do so, the petition must be dismissed for lack of jurisdiction.
“We are of the opinion that such a strict literal construction of the statute is not authorized in the present case. It is clear that the purpose of the deficiency notice is to give the taxpayer notice that the Commissioner means to assess a deficiency tax against him and to give him an opportunity to have such ruling reviewed by the Tax Court before it becomes effective. Commissioner [of Internal Revenue] v. New York Trust Co., 2 Cir., 54 F.2d 463, 465; Commissioner [of Internal Revenue] v. Forest Glen Creamery Co., 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, 2 Cir., 88 F.2d 650, 651. In addition to giving the taxpayer notice of the proposed deficiency assessment, the mailing of the deficiency notice limits the period of time thereafter to ninety days in which the taxpayer can have the question reviewed by the Tax Court. If the taxpayer receives notice of the proposed assessment, and during the ninety-day period thereafter files his petition for review with the Tax Court, the purposes of the Act have been accomplished. Although some courts have said that strict compliance with the statutory notice provisions is necessary in order to validate the assessment and to give the Tax Court jurisdiction to review it, we do not think that such a view is the correct one. In Commissioner [of Internal Revenue] v. Forest Glen Creamery Co., supra, the Court said, 98 F.2d at page 971: 'x‘ * there is no indication in the statute of an intention to require the notice to be on the basis of jurisdiction of the Board in a technical sense.’ As pointed out by Commissioner [of Internal Revenue] v. New York Trust Co., supra, 54 F.2d at page 465, it is the taxpayer who invokes the jurisdiction of the Board by filing his petition to review. This Court has previously ruled that a failure to strictly comply with the statutory notice provisions does not necessarily deprive the Tax Court of its jurisdiction to act in the matter. Warner Collieries Co. v. United States, 6 Cir., 63 F.2d 34; Commissioner [of Internal Revenue] v. Nichols & Cox Lumber Co., 6 Cir., 65 F.2d 1009. See also Burnet v. San Joaquin Fruit & Investment Co., 9 Cir., 52 F.2d 123, 128. Under Section 272(d) Internal Revenue Code, the required mailing of the deficiency notice can be waived by the taxpayer without invalidating the validity of the assessment. In the following cases it was held that defects or irregularities in giving the required statutory notice were waived by the taxpayer’s action in proceeding with a petition for review in the Tax Court, which thereupon acquired jurisdiction to determine the matter: Haag v. Commissioner, 7 Cir., 59 F.2d 516, 518; Commissioner [of Internal Revenue] v. New York Trust Co., supra, 54 F.2d at page 466.
“In the present case, the taxpayer received the full measure of protection guaranteed to him by Section 272(a) of the Code.”
We do not go as far as the majority did in Dolezilek v. C. I. R., 1954, 94 U.S. App.D.C., 97, 212 F.2d 458, in here holding that actual notice, plus a ninety-day period thereafter within which the taxpayer may act, satisfies the statute, and that a literal compliance is unnecessary. There the majority opinion held that the mailing of an undelivered registered letter starts the ninety-day period running, where the taxpayer had actual notice within the ninety-day period by manual delivery and “adequate time remaining within such period for preparing and filing * * * ” his protest. The dissent of Judge Miller points out that he believes the legislative intent was that “the notice must actually reach the taxpayer * * * before limitation begins to run from the date of mailing,” and in conclusion he states:
“My opinion is that Congress intended to permit an application to the Tax Court within ninety days after the mailing of a final or ninety-day deficiency letter which was actually delivered to the taxpayer by the post office; and, in the absence of notice by registered letter, within ninety days after the taxpayer’s actual receipt of notice delivered to him by some other method. Section 272 does not, as the majority say, provide for manual delivery. But such delivery is not forbidden, and the use of registered mail is not mude exclusive. The essential thing is that the taxpayer have notice, and not that he have it in any particular way.” (Emphasis added.)
We agree with this reasoning. Here' the essential purpose of the statute was accomplished. The rights of the taxpayer were protected. He received ae-tual notice in sufficient time to petition the: Tax Court to stay the levy and dis-traint, had he desired so to do. He chose not to do so, and he cannot now complain of an alleged technical deficiency which deprived him of no rights.
Our conclusion herein as to the sufficiency of the notice is based upon the circumstances of this case and our reasoning is not meant as authority for holding that actual notice is sufficient in all cases where another specific kind of notice is prescribed.
Affirmed.
. 28 U.S.C.A. § 1340.
. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A.
. 28 U.S.C.A. § 1291.
. 26 U.S.C.A. § 7421.
. 26 U.S.C.A. § 6212.
. 26 U.S.C.A. § 6213.
. 26 U.S.C.A. (I.R.C.1939), § 272.
. Internal Revenue Act of 1924, § 274(a), 26 U.S.C.A.Int.Rev.Acts, p. 56.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_typeiss | C | 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.
John S. PORTER, Plaintiff, Appellant, v. Harold NUTTER, et al., Defendants, Appellees.
No. 89-1834.
United States Court of Appeals, First Circuit.
Heard Aug. 1, 1990.
Decided Sept. 11, 1990.
Lee C. Nyquist, with whom Devine and Nyquist and Merrick C. Weinstein, were on brief for plaintiff, appellant.
Andrew D. Dunn, with whom Devine, Millimet, & Branch and Cynthia A. Satter, were on brief for defendants, appellees.
Before CAMPBELL and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.
SELYA, Circuit Judge.
Invoking diversity jurisdiction, 28 U.S.C. § 1332, plaintiff-appellant John S. Porter, a Floridian, sued several local citizens, including appellee Ronald Griffin, in the United States District Court for the District of New Hampshire. The district court, acting on a Rule 12(b)(6) motion, dismissed Porter’s complaint against Griffin for failure to state a cognizable claim. Following entry of judgment under Fed.R. Civ.P. 54(b), Porter appeals.
I
“In reviewing a Rule 12(b)(6) dismissal, we take the well-pleaded facts as they appear in the complaint, indulging every reasonable inference in plaintiff’s favor.” Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). Utilizing this approach, Porter’s amended complaint, read in its most flattering mien, reveals the following:
1. Griffin, Porter, and Raycraft worked for a common employer, Rockingham Venture, Inc. (RVI), which owned and operated a racetrack in Salem, New Hampshire. Griffin was a supervisor whose duties included reviewing safety precautions and directing work crews. Porter and Raycraft were subordinates who did plumbing repairs and general labor.
2. On July 20, 1987, the three men were toiling near the ladies’ rest room at the racetrack. Performance of the job required Porter to work in a trench. He was not furnished with any headgear or other protective equipment.
3. Several times, Porter asked Griffin to remove a propane tank hovering near the trench’s edge. Griffin had both the authority and the wherewithal to relocate the tank, but neglected to do so. Eventually, misfortune struck. Raycraft, said by plaintiff to be a “known user and abuser of alcohol,” attempted to leap across the fissure, causing the omnipresent tank to fall into the trench. The tank struck Porter, seriously injuring him.
The district court, reading these facts liberally in plaintiffs favor, nonetheless believed Griffin to be immune from suit. We agree.
II
State substantive law controls in this diversity case. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Moores v. Greenberg, 834 F.2d 1105, 1107 (1st Cir.1987). We begin our exposition by remarking that, under New Hampshire law, tort liability between coemployees is something of a gray area. The state supreme court in recent years has wrestled with the problem and determined that an employee may not sue a fellow employee for negligently-inflicted injuries sustained in the course of the employment if the putative defendant was simply carrying out the employer’s nondelegable duty to maintain a safe workplace. See Rounds v. Standex International, 131 N.H. 71, 76-77, 550 A.2d 98, 101-02 (1988); see also Taylor v. Nutting, — N.H. -, -, 578 A.2d 347, 348 (1990) (summarizing holding in Rounds). To rule otherwise, the court reasoned, “would vitiate the purpose of the workers’ compensation law.” Rounds, 550 A.2d at 102. Thus, an employee can be liable in negligence to a coemployee only for the breach of some duty “distinct from the employer’s duty to maintain a safe workplace.” Id.
The New Hampshire Supreme Court amplified the purport of Rounds in Tyler v. Fuller, — N.H.-, 569 A.2d 764 (1990). There, the court rejected a proposed distinction premised on “active” versus “passive” negligence, 569 A.2d at 767, and observed that, for one employee to owe a separate and distinct duty to another, “something extra” was required: “It must be ‘an affirmative act which increase[s] the risk of injury’ and is beyond the scope of the employer’s nondelegable duty to provide a safe workplace.” Id. 569 A.2d at 769 (quoting Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973)). The court’s use of the conjunctive is noteworthy; to be actionable, the actor’s conduct must not only increase the risk to plaintiff but must also exceed, and arise independent of, the responsibilities that the actor, standing in the employer’s shoes, was required all along to fulfill.
The theory and burden of this line of cases is apparent. In New Hampshire, as elsewhere, an employer has a nondelegable duty to provide employees with a safe place to work. See, e.g., Moore v. Company, 89 N.H. 332, 335, 197 A. 707, 710 (1938). The sweep of the duty is broad: “The working conditions must be as safe as the nature of the place of employment reasonably permits_” Wasley v. Kosmatka, 50 Wis.2d 738, 744, 184 N.W.2d 821, 824-25 (1971). Although the duty is itself nondelegable, it is routinely implemented through agents, supervisory employees entrusted by the employer with carrying out the employer’s common-law duty. When a supervisor’s alleged negligence comprises conduct in derogation of this duty, an injured coemployee cannot sue the supervisor; after all, “[t]he duty of proper supervision is a duty owed by a ... supervisory employee to the employer, not to a fellow employee,” and breach of it is, therefore, not actionable by the latter (the injured party being remanded, in effect, to his rights under the workers’ compensation statutes). Tyler, 569 A.2d at 768 (quoting Kruse, 213 N.W.2d at 67). It is only when the supervisor’s conduct transcends the scope of the employer’s duty that negligence will ground a suit by an injured fellow employee. Hence, a right of action inures when the act or omission occurs “in the [supervisor’s] separate and distinct capacity as coemployee[ ].” Id. 569 A.2d at 769.
Ill
We think that these authorities are dispositive of the instant appeal. Griffin was the overseer at the job site and, as the amended complaint unambiguously alleges, was in charge of safety precautions. In carrying out that responsibility, he was carrying out RVI’s nondelegable duty to its work force. Requiring Porter to perform his chores in the presence of a known, curable hazard presumably violated RVI’s duty to furnish Porter a safe place to work. Leaving the dangerous condition in place, particularly after attention had been called to it, presumably violated Griffin’s duty to RVI. Yet, nothing in the amended complaint’s factual scenario suggests that Griffin was guilty of any act or omission apart from, or beyond the scope of, RVI’s duty to ensure that “[t]he working conditions [would] be as safe as the nature of the place of employment [here, the trench] reasonably permitted].” Wasley, 184 N.W.2d at 824-25. In short, the claimed negligence occurred while appellee was “merely executing the employer’s duty.” Tyler, 569 A.2d at 766. “Something extra” was lacking.
Appellant focuses obsessively on a single excerpt from the Tyler opinion:
An important factor to consider is the nature of the alleged negligence. If there is some direct involvement which creates a personal duty of care, liability may be asserted notwithstanding Rounds if such an independent duty is breached by a supervisory employee acting in the capacity of a co-worker/co-employee.
569 A.2d at 769. From this passage, he divines that cases like this one turn not on the scope of the employer’s duty, but on the degree of the supervisor’s involvement. But, this conclusion stands logic on its ear. Read in context, the analysis which Tyler directs starts not with the relationship between fellow employees, but with the relationship between the negligent actor and the employer; not with the supervisor’s conduct, but with the scope of the employer’s duty. If the negligence occurs in connection with the “supervisory duties which the defendant performs for the employer,” then the defendant “has breached a duty owed to the employer and not to the employee.” Id. It is only when the defendant “steps out of his or her role as a supervisor” that a personal duty of care to the injured employee arises. Id. And unless such a duty can be shown, the degree of the actor’s involvement is immaterial. See id. (requiring, conjunctively, that conduct sued upon be both risk-increasing and beyond the scope of the employer’s nondel-egable duty to furnish a safe place to work).
Here, the facts alleged in no sense show that Griffin acted (or more precisely put, failed to act) beyond his supervisory capacity. Despite his direct involvement in the mishap, Griffin was standing in the shoes of the employer, plain and simple, when he neglected to remedy the on-site hazard and thereby contributed to the happening of the accident. He was obliged to relocate the tank by virtue of the employer’s duty, which had devolved upon him as RVI’s agent; that Porter also requested the tank’s removal was beside the point. Because Rounds and its progeny do not allow an injured employee to maintain an otherwise-precluded tort suit by the simple expedient of calling a failure to provide safe working conditions by some other appellation, Porter cannot sue Griffin on these facts.
IV
We need go no further. In diversity jurisdiction, “[o]ur function is not to formulate a tenet which we, as free agents, might think wise, but to ascertain, as best we can, the rule that the state’s highest tribunal would likely follow.” Kathios v. General Motors Corp., 862 F.2d 944, 949 (1st Cir.1988). If we are unwilling to stretch state precedents to reach new frontiers, a litigant like Porter, who deliberately “chose to reject a state-court forum in favor of a federal forum ... is in a perilously poor position to grumble” about our stodginess. Kassel v. Gannett Co., 875 F.2d 935, 950 (1st Cir.1989). See also Croteau v. Olin Corp., 884 F.2d 45, 46 (1st Cir.1989); Cantwell v. University of Massachusetts, 551 F.2d 879, 880 (1st Cir.1977); cf. Freeman v. Package Machinery Co., 865 F.2d 1331, 1349 (1st Cir.1988) (party removing ease from state court “hard put to complain if the federal court follows state practice in regard to state-law claims”). We may, perhaps, be unadventurous in our interpretation of New Hampshire law, but a plaintiff who seeks out a federal venue in a diversity action should anticipate no more.
Affirmed.
. Plaintiff’s case against one such person, James Raycraft, remains pending in the district court.
. In the case of a supervisory employee, "something extra," as that phrase was intended by the Tyler court, must mean something apart from, beyond, or transcending “the category of supervisory duties which the [supervisor] performs for the employer” in order to make the workplace reasonably safe. Tyler, 569 A.2d at 769; see also Kruse, 213 N.W.2d at 67-68.
. Indeed, if "direct involvement” itself can create an independent duty duplicative of the employer’s duty, as appellant asseverates, then the exception would harbor the potential to swallow virtually the entire rule. We do not think Rounds and Tyler can so easily be skirted, especially since appellant's view of the primacy of direct involvement comes perilously close to reintroducing the dichotomy between "active” and “passive" negligence specifically rejected by the court in Tyler, 569 A.2d at 767.
. We have considered certification of this case to the New Hampshire Supreme Court, but believe it unnecessary, for reasons stated elsewhere, to embark on such a course. See Kassel, 875 F.2d at 950 n. 14; Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4, 8 (1st Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1135, 103 L.Ed.2d 2196 (1989); see also Bi-Rite Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440, 443 n. 3 (1st Cir.1985) ("it is inappropriate for a federal court to use [certification] when the course state courts would take is reasonably clear”). At any rate, we are particularly hesitant to certify state-law questions where, as here, both parties, upon direct inquiry at oral argument, expressed a contrary preference. Cf. Fischer, 857 F.2d at 8 (case for certification "considerably weaken[ed]” when district court was not asked to certify question).
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_initiate | A | 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.
UNITED STATES of America, Appellant, v. PENNSYLVANIA ENVIRONMENTAL HEARING BOARD, Robert Broughton, Paul E. Waters, and Ray A. Alberigi, Prothonotary of Lackawanna County, Appellees.
No. 77-2041.
United States Court of Appeals, Third Circuit.
Argued March 30, 1978.
Decided Aug. 14, 1978.
James Hunter, III, Circuit Judge, dissented and filed opinion.
James W. Moorman, Acting Asst. Atty. Gen., Washington, D. C., S. John Cottone, U. S. Atty., James W. Walker, Asst. U. S. Atty., Scranton, Pa., Raymond N. Zagone, Carl Strass, Attys., Dept, of Justice, Washington, D. C., for appellant.
Dennis Jay Harnish, Karin W. Carter, Asst. Attys. Gen., Harrisburg, Pa., for ap-pellees.
Before HUNTER, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
This appeal requires us to determine whether a private company operating under federal contract is a federal “department, agency or instrumentality” for the purposes of section 313 of the Federal Water Pollution Control Act Amendments of 1972 (Act). That provision requires inter alia that a federal “department, agency or instrumentality” comply with State and local pollution control requirements “to the same extent that any person is subject to such requirements.”
The district court determined that Chamberlain Manufacturing Corporation (Chamberlain), the company whose operations and whose relationship to the Government is involved here, is a private independent contractor and not a federal agency for purposes of section 313. That holding resulted in the district court granting the summary judgment motion brought by the Pennsylvania Environmental Hearing Board (Board). 431 F.Supp. 747 (M.D.Pa.). We affirm.
I
The United States owns the premises, installations and equipment at the Scranton Army Ammunition Plant (Plant) in Scranton, Pennsylvania. The primary function of the Plant is the production of metal parts for ammunition shells used solely by the United States. Chamberlain, an Iowa corporation having a certificate of authority to do business in Pennsylvania, operates the Plant under a facilities contract with the United States. That contract designates Chamberlain as “an independent contractor and not an agency of the Government,” and provides that the personnel employed “in carrying out the work hereunder. shall constitute employees of the Contractor [Chamberlain] and not of the Government.”
From July, 1970 through October, 1972, the operation of the plant by Chamberlain resulted in the discharge of 1.5 million gallons per day of untreated wastes from the Plant into Roaring Brook, a tributary of the Lackawanna River. “As a result of the industrial waste discharge, no fish could have lived within a half mile of the plant, and the lower life forms were also depressed.”
During this period, “Chamberlain knew that its operation of the plant and the attendant discharge of industrial wastes from the plant caused substantial pollution of Roaring Brook.” Chamberlain however was not unresponsive: commencing in 1966 and at least through October, 1972, Chamberlain engaged in a series of pollution abatement measures which, by October, 1972, resulted in abatement of the Plant’s industrial waste discharge.
The parties stipulated that in order to receive reimbursement from the United States for its pollution control programs, Chamberlain required the approval of the Department of the Army prior to their implementation. The facilities contract between the Government and Chamberlain nonetheless specified that Chamberlain was to comply with all governmental laws and regulations, and was to “procure all necessary permits and licenses,” including those of state and local authorities. Additionally the facilities contract contains a specific section dealing with Chamberlain’s responsibility to comply with state pollution control laws, and provides among other things that “[i]n the event any Governmental agency, local, state or federal, shall assess fines, institute suit, or otherwise disrupt, curtail, or order cessation of production, the Government shall hold harmless and indemnify the contractor for costs and damages incurred.”
In 1972, the Pennsylvania Department of Environmental Resources (Department) filed a complaint for civil penalties for water pollution with the Board against Chamberlain and other defendants. The complaint alleged violations of the Pennsylvania Clean Streams Law, and sought money damages pursuant to the 1970 Amendments to that act. None of the defendants filed an answer. On October 19, 1972, the Board entered a default judgment against Chamberlain and the commanding officer of the facility. (App. 17, 35).
At a subsequent penalty hearing, an Assistant United States Attorney made a limited appearance on behalf of all defendants. He argued that under the doctrine of sovereign immunity the Board lacked jurisdiction to “ ‘impose fines or penalties upon federal employees or federally operated facilities.. ’ ” The Board denied the Government’s objection to the Board’s assertion of jurisdiction. This jurisdictional objection constituted the full extent of the Government’s participation in Board proceedings. The Board went on to assess a $1,667,000 fine against Chamberlain.
Following the Board’s decision, the United States filed a complaint in the federal district court, seeking an injunction to prevent the Department's enforcement and collection of the fine levied against Chamberlain. The parties stipulated to the relevant facts, and the case was heard upon a motion for summary judgment brought by the Board.
Aware of the dismissals and stipulations affecting the other defendants, the district court considered the United States’ claim of immunity solely as it related to Chamberlain. The court did not confine itself to the ratio decidendi found in the Board’s decision, as it was not sitting as a court reviewing Board determinations. Rather, the district court focused on the facilities contracts pursuant to which Chamberlain contracted to operate the Scranton Army Ammunition Plant. As noted “the two contracts... denominate Chamberlain ‘an independent contractor and not an agency of the Government’ and employ language fully consistent with that characterization.” 431 F.Supp. at 754. The question before the district court thus became whether Chamberlain, which con-cededly operated the plant and indeed was named as an “independent contractor” in all relevant documents to which it was a party and which were pertinent to its function as Plant operator, was nonetheless a United States “department, agency, or instrumentality” within the meaning and terms of section 313. If so, then upholding the Government’s sovereign immunity contention would result both in the district court being the exclusive forum for any action instituted against Chamberlain and in the disallowance of any fine. See n. 20 infra. If not, i. e., if Chamberlain was not a federal entity under section 313, then Chamberlain, like any other private company, was subject to the jurisdiction of, and sanctions imposed by, the Board.
The district court, after an examination of policy considerations and relevant authorities, particularly Powell v. United States Cartridge Company, concluded that as a matter of federal law Chamberlain was not shielded from state environmental proceedings merely because it was operating under a contract made with the federal government. The district court reasoned:
To include Chamberlain, an independent contractor, within [the] definition [of “department, agency, or instrumentality”] would not only strain the literal language, but would, by extending a partial shield to the vast number of companies which do business under contract with the Government, flout the environmental concerns which gave impetus to the Air and Water Acts. Those statutes, rather than erecting new obstacles to enforcement, exposed to suit in a specific forum the otherwise immune activities of strictly governmental agencies.
431 F.Supp. at 755. The district court therefore refused to enjoin the Board’s order prescribing a penalty against Chamberlain. Id.
II
We agree with the district court that Chamberlain is not a federal “department, agency, or instrumentality” under section 313 of the Act.
We find it critical that Chamberlain’s contract with the federal government specifies that it is “an independent contractor and not an agency of the Government,” and that its employees are not government employees. By contrast, the pollution control requirements prescribed in section 313 apply to a federal “department, agency or instrumentality.” This statutory terminology seems logically to exclude an independent contractor. If there is an ambiguity in the terms of the statute, however, that ambiguity disappears when reference is made to the explicit contractual language of the parties which carefully denotes Chamberlain to be an independent contractor and “not an agency of the Government.”
Admittedly, contract provisions do not necessarily govern a party’s legal status vis-a-vis third parties (here the Board). Yet here the language of the contracting parties is unmistakably clear, and in our opinion was specifically intended to establish the status of the one in relation to the other. In the context of this case, in which the Government would have Chamberlain cloak itself with the mantle of a federal “department, agency or instrumentality” and thereby gain governmental immunity with respect to third parties, the relevant contract terms assume an enhanced significance.
Indeed, in a highly analogous context the Supreme Court found nearly-identical contract language to be “persuasive” and virtually determinative of the issue before it. In Powell v. United States Cartridge Co., 339 U.S. 497, 505-06, 70 S.Ct. 755, 94 L.Ed. 1017 (1950), a private company under contract with the United States claimed that it was a Government agent, and that its employees were Government employees, thereby exempting the employees from the minimum wage and maximum hour provisions of the Fair Labor Standards Act as amended, 29 U.S.C. §§ 201 et seq. In Powell, as here, the private company was a munitions manufacturer which operated a plant owned by the United States. There as here, the company’s work was directed toward producing ammunition solely for the Government, a process whereby the end product as well as the raw materials were owned by the Government. There as here, the relevant contract between the Government and the company designated the company as an independent contractor and not a Government agent. There, as here, the contractor claimed to be shielded from a statute which affected and sought to regulate aspects of health and welfare. Finally, the very issue raised in Powell (whether the contractor’s employees were those of the contractor or of the Government) has, in this case, been unequivocally determined by the actions of the contracting parties when they agreed that all employees were those of Chamberlain and not of the Government.
The Supreme Court in Powell reasoned: The contract.in the Powell case contained the following additional clause:
“Article III-A-Status of Contractor.
“It is expressly understood and agreed by the Contractor and the Government that in the performance of the work provided for in this contract, the Contractor is an independent contractor and in no wise an agent of the Government.” (Emphasis supplied.)
Such provisions are persuasive that the petitioners [employees] should be recognized here as employees of the respective respondents [private companies], and the respondents as independent contractors. The respondents argue, however, that the context of the times, other provisions of the contracts and the practice under the contracts deprive these statements of their ordinary meaning. We find, on the contrary, that each of these sources supplies additional evidence that these provisions correctly state the true relationship between the petitioners and respondents.
For example, we find in these contracts a reflection of the fundamental policy of the Government to refrain, as much as possible, from doing its own manufacturing and to use, as much as possible (in the production of munitions), the experience in mass production and the genius for organization that had made American industry outstanding in the world. The essence of this policy called for private, rather than public, operation of war production plants.... It would have been simple for the Government to have ordered all of this production to be done under governmental operation as well as under governmental ownership. To do so, however, might have weakened our system of free enterprise. We relied upon that system as the foundation of the general industrial supremacy upon which ultimate victory might depend. In this light, the Government deliberately sought to insure private operation of its new munitions plants.
In these great projects built for and owned by the Government, it was almost inevitable that the new equipment and materials would be supplied largely by the Government and that the products would be owned and used by the Government. It was essential that the Government supervise closely the expenditures made and the specifications and standards established by it. These incidents of the program did not, however, prevent the placing of managerial responsibility upon independent contractors.
The relationship of employee and employer between the worker and the contractor appears not only in the express terminology that has been quoted. It appears in the substantial obligation of the respondent-contractors to train their working forces, make job assignments, fix salaries, meet payrolls, comply with state workmen’s compensation laws and Social Security requirements and “to do all things necessary or convenient in and about the operating and closing down of the Plant,... ”
339 U.S. at 505-07, 70 S.Ct. at 760-61 (footnotes omitted) (emphasis in original).
Here as in Powell, the Government has deliberately opted for the “genius” of private enterprise in the operation of its Scranton Army Ammunition Plant. In so choosing, the Government enjoys the benefits that are derived from private operation, but by the same measure, it must also suffer any reciprocal burdens. One of those burdens is the responsibility of Chamberlain’s compliance with state pollution regulations.
In sum we find no significant distinction between this case and Powell. Hence we are persuaded that Powell’s reasoning applies with equal force to the Pennsylvania Board’s attempts to regulate discharges of pollutants resulting from Chamberlain’s operations. Cf. United States v. Boyd, 378 U.S. 39, 44-48, 84 S.Ct. 1518,12 L.Ed.2d 713 (1964) (the use of Government-owned property by a federal contractor for profitable activities is a taxable activity, even if the tax is finally borne by the United States); United States v. City of Detroit, 355 U.S. 466, 469, 78 S.Ct. 474, 476, 2 L.Ed.2d 424 (1958) (“it is well settled that the Government’s constitutional immunity does not shield private parties with whom it does business from state taxes imposed on them merely because part or all of the financial burden of the tax eventually falls on the Government”); Penn Dairies, Inc. v. Pennsylvania Milk Control Commission, 318 U.S. 261, 269, 63 S.Ct. 617, 620, 87 L.Ed. 748 (1943) (independent federal contractor may be regulated, taxed and subject to license revocation by state even though such tax and regulation increases burden on federal government: “those who contract to furnish supplies or render services to the government are not [federal] agencies and do not perform governmental functions”); Alabama v. King & Boozer, 314 U.S. 1, 8-12, 62 S.Ct. 43, 86 L.Ed. 3 (1941) (state may levy sales tax on purchase of goods by contractor who buys them for use in performing “cost-plus” contract for the Government, even though title to materials vests in the United States upon inspection and acceptance, and even though Government reimburses contractor for tax paid). See also United States v. Georgia Public Service Commission, 371 U.S. 285, 83 S.Ct. 397, 9 L.Ed.2d 317 (1963); Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 517, 83 L.Ed. 784 (1939) (“the government does not become the conduit of immunity in suits against its agents or instrumentalities merely because they do its work”).
Inasmuch as Congress has inclined toward restricting immunity from pollution control even for acknowledged federal agencies, we see no reason to broaden immunity as it relates to the private sector. The recent amendments to section 313 subject any “department, agency or instrumentality of the executive, legislative, and judicial branches” to “all” state and local regulations “notwithstanding any immunity” (albeit permitting removal of proceedings to the federal courts and limiting the payment of certain penalties). This amendment confirms our understanding that under the Act even “Federal facilities [must] meet all control requirements as if they were private citizens” in order “to provide national lead-orship in the control of water pollution.” If we were to thwart this national policy as well as evident congressional intent by acceding to the Government’s argument that independent contractors partake of an immunity as great as that of the Government itself, we would be denying the entire course of environmental pollution control, a fundamental concern of Congress and society. See also E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); American Iron & Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975), modified, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978).
The order of the district court will be affirmed.
. At the time relevant to the events which underlie this appeal, § 313 of the Act reads as follows:
Federal facilities pollution control
Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges. The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 1316 or 1317 of this title. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption.
Pub.L.No.92-500, § 2, 86 Stat.,875 (1972) (prior to 1977 Amendments) (codified at 33 U.S.C.A. § 1323 (Supp.1977)) (current version at 33 U:S. C.A. § 1323 (Feb. 1978 Supp.), quoted in n.24 infra). See n.20 infra.
. The parties to the district court proceeding agreed upon virtually all the facts relevant to that proceeding. Their stipulation took the form of 65 findings of fact and is reproduced in haec verba in the district court opinion. 431 F.Supp. at 749-53.
. The parties stipulated and the district court thereupon found that “Chamberlain operates the Scranton Army Ammunition Plant under a facilities contract with the United States of America” (emphasis added). Id. at 749, Finding No. 4.
. Contract No. DA-36-034-AMC-0163A, Exhibit “A”, fl 1 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79); accord, 431 F.Supp. at 754.
. Contract No. DA-36-034-AMC-0163A, pt. I, U 3 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79).
. 431 F.Supp. at 750, Finding No. 21.
. Id., Finding No. 22.
. Id., at 751, Finding No. 43.
. Contract No. DA-36-034-AMC-0163A, art. VI, 1) 1 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79) provides that:
The Contractor shall procure all necessary permits and licenses; obey and abide by all applicable laws, regulations and ordinances and other rules of the United States of Amer-ica, of the state, territory, or subdivision thereof wherein the work is done, or of any other duly constituted public authority.
. Contract No. DAAA09-71-C-0257, at 47, art. IV-D, H 3 (effective July 1, 1971) (District Court Docket # 80) (emphasis added).
. The original defendants in the State Board action were three: Robert E. Froehlke, the Secretary of the Army; Lt. Col. Daniel E. Duggan, the Commanding Officer of the facility; and Chamberlain. The complaint against the Secretary was dismissed by the Board for want of personal jurisdiction. App. 38. The complaint against Lt. Col. Duggan, while upheld by the Board, was withdrawn in the district court by stipulation of the parties. App. 39. Thus, Chamberlain is the sole party against whom the Board’s fine was levied.
. Pa.Stat.Ann. tit. 35, §§ 691.1 et seq. (Purdon 1977).
. 431 F.Supp. at 752, Finding No. 57.
. The Board addressed the sovereign immunity issue as follows:
Whether the action is so barred depends upon whether the individual Defendants can be said to have been violating the Clean Streams Law and the regulations promulgated thereunder in the course of their duties as federal officials and contractors, or whether in doing so they were acting outside the scope of their duties as federal officials. If the Defendant [sic] were acting entirely outside the scope of their authority, then the suit cannot be viewed as one against the United States.
Board Op. at 6-7, reproduced at App. 22-23. The Board concluded that the defendants’ conduct was beyond the scope of their authority as agents of the United States, and to that extent jurisdiction to assess civil penalties was not barred by sovereign immunity (App. 28).
. The United States also sought review of the Board’s decision through the prescribed channels: an appeal to the Pennsylvania Commonwealth Court. As represented to us at the oral argument of this case, that appeal to the Commonwealth Court was quashed as untimely filed. Thus no state proceeding is presently pending, and we are therefore not confronted with the question as to whether these federal civil proceedings should be dismissed under the comity doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. For a general discussion of the applicability of Younger to civil proceedings, see Note, Younger Grows Older: Equitable Abstention in Civil Proceedings, 50 N.Y.U.L.Rev. 870 (1975). Nor are we here faced with a question of abstention under Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See generally Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071 (1974). Neither have the parties on appeal raised or argued the question of whether the now-final determination of the Pennsylvania Environmental Hearing Board precludes further inquiry into the matters raised on this appeal under principles of res judicata. See United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Seatrain Lines, Inc. v. Pennsylvania R. Co., 207 F.2d 255 (3d Cir. 1953) (giving res judicata effect to a decision of the Interstate Commerce Commission). We therefore do not treat with this question. For discussions of the applicability of the doctrine of res judicata to administrative decisions, see Painters Dist. Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081 (5th Cir. 1969); 2 K. Davis, Administrative Law Treatise ch. 18 (1958 & Supp.1970) (the applicability of res judicata to administrative judgments may depend upon many factors, including inter alia the agency’s expertise in deciding the particular issue, the legislative intent concerning the allocation of decision-making, and the fullness and fairness of the agency litigation).
. See n. 2 supra.
. See n. 11 supra.
. Contract DA-36-034 — AMC-0163A (District Court Docket # 79) covered the period from June 13, 1963 through June 30, 1971. Contract DAAA09-71-C-0257 (District Court Docket # 80) covers July 1, 1971 through at least the date of the district court decision. 431 F.Supp. at 749, Finding Nos. 5 & 6.
. 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017 (1950). In Powell the Supreme Court ruled that employees of an independent contractor who manufactured munitions for the federal government were not federal employees; nor was the contractor a federal agency. Hence the Court held that the employees were not excluded from coverage under the minimum wage and maximum hour provisions of the Fair Labor Standards Act. The district court recognized, as do we, that Powell presents a situation highly analogous to the instant case. See pp. 1278-1280 infra.
The district court found further support for its position in Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784 (1939), and in two court of appeals cases which declined to extend immunity from tort liability to private munitions manufacturers who were “intimate[ly] connect[ed]” with the Federal Government. 431 F.Supp. at 754, citing Foster v. Day & Zimmermann, Inc., 502 F.2d 867 (8th Cir. 1974) and Whitaker v. Har-vell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969).
. It is unclear to us precisely what advantages would accrue to a federal “department, agency or instrumentality” under the unamended version of § 313, quoted in n. 1 supra. The statute provides that a federal entity must comply with pollution control and abatement “requirements” “to the same extent that any person is subject to such requirements.” This language would seem to erase any distinction between the treatment of federal and nonfederal entities. See S.Rep.No.414, 92d Cong., 1st Sess. 67, reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3668, 3733-34, quoted in n. 26 infra. Yet in two cases of now questionable vitality, the Supreme Court has rejected this interpretation, and ruled that any waiver of sovereign immunity must be clearly stated and strictly construed. See n. 22 infra. Presumably therefore, under the unamended statute and under traditional notions of sovereign immunity, a federal agent is (at the least) immune from an environmental enforcement proceeding unless brought in federal court, and could not be fined in any forum. See 431 F.Supp. at 754-55.
Under the amended § 313, quoted in n. 24 infra, the status of such a federal entity is clear. It must conform to all “substantive or procedural” pollution requirements; it may be sued in any forum but retains a right of removal to federal court; and its immunity from fines is recognized.
. See p. 1274 & nn. 4-5 supra.
. Two recent Supreme Court decisions are also marginally relevant insofar as they rule that a waiver of sovereign immunity, and the resultant amenability of a federal agency to state regulation, will not be found absent “a clear expression or implication to that effect.” Hancock v. Train, 426 U.S. 167, 179, 96 S.Ct. 2006, 2012, 48 L.Ed.2d 555 (1976), superseded by statute, Pub.L.No.95-96, tit. I, § 116, 91 Stat. 711 (1977) codified as amended at 42 U.S.C.A. § 7418 (Nov. 1977 Supp.)), quoting United States v. Wittek, 337 U.S. 346, 359, 69 S.Ct. 1108, 93 L.Ed. 1406 (1949); accord, EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), superseded by statute, Pub. L.No.95-217, § 60, 91 Stat. 1597 (1977) (codified as amended at 33 U.S.C.A. § 1323(a) (Feb. 1978 Supp.)). Yet whatever their vitality, Hancock and EPA do not treat with the issue of whether or when a private company becomes converted into a federal agency by virtue of contracting with the Government. Hancock and State Water Resources Control Bd. held only that federal agencies need not procure state air and water pollution control permits. Even those holdings, as indicated, have now been effectively overruled by statute.
. See n.l supra & n.24 infra.
. Section 313 as amended reads in relevant part:
Federal facilities pollution control
(a) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable services charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. Nothing in this section shall be construed to prevent any department, agency, or instrumentality of the Federal Government, or any officer, agent, or employee thereof in the performance of his official duties, from removing to the appropriate Federal district court any proceeding to which the department, agency, or instrumentality or officer, agent, or employee thereof is subject pursuant to this section, and any such proceeding may be removed in accordance with section 1441 et seq. of Title 28. No officer, agent, or employee of the United States shall be personally liable for any civil penalty arising from the performance of his official duties, for which he is not otherwise liable, and the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court. The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 1316 or 1317 of this title. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemptions shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption. In addition to any such exemption of a particular effluent source, the President may, if he determines it to be in the paramount interest of the United States to do so, issue regulations exempting from compliance with the requirements of this section any weaponry, equipment, aircraft, vessels, vehicles, or other classes or categories of property, and access to such property, which are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State, and which are uniquely military in nature. The President shall reconsider the need for such regulations at three-year intervals.
Pub.L.No.95-217, § 60, 91 Stat. 1597 (1977) (codified as amended at 33 U.S.C.A. § 1323(a) (Feb. 1978 Supp.)), superseding EPA v. California ex rel. Status Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Cf. Clean Water Act of 1977, Pub. L.No.95-217, 91 Stat. 1566 (codified in scattered sections of 33 U.S.C.A. ch. 26 (Feb. 1978 Supp.)); 46 U.S.L.W. 2324 (Dec. 20, 1977) (regional office of the EPA has recently issued environmental enforcement letters to seventeen major federal facilities said to be violating environmental standards, thereby instituting “the first formal action under a recently announced agency policy of enforcing the federal Clean Air and Water Pollution Control Acts against federal facilities”).
. S.Rep.No.414, 92d Cong., 1st Sess. 67, reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3733-34.
. In its brief the Government seeks to support its argument by citing to certain fragments of legislative history which state that § 313 was enacted to subject federal activities, carried on directly or “by contract,” to state pollution control. Government’s Brief at 11-12, citing H.R.Rep.No. 127, 91st Cong., 1st Sess. 6, 19-20, reprinted in [1970] U.S.Code Cong. & Admin. News, pp. 2691, 2696, 2710-11, and H.R.Con. Rep.No.940, 91st Cong., 2d Sess. 55, reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 2691, 2740. We find this history to be ambiguous and inconclusive.
First we believe that § 313 is clear and unambiguous as it relates to subjecting federal agencies to state and local environmental controls. As such, Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), and Schiaffo v. Helstoski, 492 F.2d 413, 428 (3d Cir. 1974), teach us that recourse to legislative history is inappropriate. See generally 2A C. Sands, Sutherland’s Statutes and Statutory Construction [fff 46.01, 46.04 (4th ed. 1973); Frankfurter, Some Reñections on the Reading of Statutes, 47 Colum.L.Rev. 527, 527-28 (1947); Murphy, Old Maxims Never Die: The “Plain-Meaning Rule’’ and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L.Rev. 1299 (1975).
Second, even if we were to look to legislative history, we would not agree with the Government’s construction.
The Government would interpret the language quoted above to carve out a partial immunity for the private independent contractor under § 313. We think however that this language does not address the status of the operator of a federal facility; nor does it attempt to equate a private contractor with a federal agent. Rather, we believe that its import is to acknowledge that all federal activities and operations are subject to pollution control requirements. We read this language as no more than one of the many attempts made by the legislature to broaden the scope of permissible state and local regulation, and not, incongruously, as an attempt to narrow state control by impliedly carving out immunity for independent contractors. See, e. g., S.Rep.No,414, 92d Cong.,
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_respond1_8_2 | 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 first listed respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Tom MALOUFF, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
Circuit Court of Appeals, Eighth Circuit
January 25, 1929.
No. 8129.
T. J. Malouff, for plaintiff in error.
George Stephan, U. S. Atty., and Charles E. Works, Asst. U. S. Atty., both of Denver, Colo.
PER CURIAM.
Writ of error dismissed, without costs to either party in this court, for failure to file brief, as provided in stipulation of parties.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer: |
songer_state | 22 | 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 re ROLLAND STORES CORPORATION. BERMAN v. HALE.
No. 2853.
Circuit Court of Appeals, First Circuit.
Feb. 16, 1934.
Harry T. Talty, of Boston, Mass. (Archibald Palmer, of New York City, on the brief), for appellant.
Clifford H. Byrnes, of Boston, Mass., for appellee.
Before WILSON and MORTON, Circuit Judges, and PETERS, District Judge.
WILSON, Circuit Judge.
The appellant was the treasurer of the Rolland Stores Corporation, which was duly adjudged a bankrupt in the District Court of Massachusetts. As such treasurer, he was ordered by the District Court on the report of a referee to turn over to the tras-tee certain merchandise as property of the bankrupt, which it was found he had wrongfully withheld from the trustee, or the value thereof, amounting to $12,949.29.. Prom this order the appellant filed a petition for appeal which, was allowed in the District Court, and also a petition to this court for leave to appeal under section 24b of the Bankruptcy Act (11 USCA § 47 (b). It is conceded that the bankrupt is only entitled to proceed under section 24b.
Both parties being ready to proceed to a hearing on the merits in case his petition for leave to appeal was allowed, the case was fully heard at the January session of this court. The petition for leave to appeal is allowed and the case will be disposed of on the merits.
The trustee filed a petition in the District Court alleging that Prank E. Berman, at various times prior to December 3, 1931, wrongfully received property of the bankrupt which he was withholding without col- or of title or adverse claim, and refused to surrender to the trustee in bankruptcy, to wit:
(1) Approximately $5,000 recorded on. the hooks of the company as loans receivable, which consisted in fact of money misappropriated by Berman.
(2) Trade fixtures of the value of $250.
(3) Merchandise or the proceeds from the sale thereof of approximately $35,000.
(4) Money received from the sale of merchandise, but not deposited to the credit of the corporation amounting to $4,454.84.
(5) Certain checks, records, and books of the corporation.
(6) The record books of the corporation.
The petition was referred to a referee and, after protracted hearings, the referee found and ordered that Frank E. Berman, as treasurer of the bankrupt corporation, either turn over to the trustee merchandise or the value thereof, to wit, $12,949.29) and certain canceled cheeks,' books, and records of the bankrupt, which are more particularly described in the referee’s order.
The order of the referee was affirmed by the District Court. The appellant filed numerous assignments of error, but all were directed to the contention that the evidence before the referee did not warrant a finding that the appellant had in his possession any merchandise belonging to the bankrupt and was wrongfully withholding it, or -that he had any of the books, records, or cheeks described in- the trustee’s petition and in the order of the referee; and,- further, that the order was not sufficiently definite to compel a compliance therewith.
From examination of the referee’s report and of the stenographic copy of the evidence before the referee, which by stipulation was filed in this court, but not made a part of the printed record, we think the referee was warranted in his findings.
While the trustee claimed, according to an inventory taken in July, 1931, that there was a much larger shortage than the referee found, the referee finally adopted as a basis for his findings the inventory taken by the appellant himself on November 9,1931, about three weeks prior to the filing of the petition in bankruptcy. This inventory showed merchandise on hand of $23,208.25. The books of the corporation showed purchases between November 9, 1931; and December 3, 1931, to the amount of $5,990, or a total amount of merchandise to be accounted for of $29,198.25. Upon the testimony before the referee, he found that the total sales during the period from November 9 to December 3, 1931, were $9,132.21, and that the value of the merchandise on hand December 3, 1931, at cost prices was $7,116.75, or a total of merchandise accounted for of $16,248.96, which showed, as the referee found, an unexplained shortage of merchandise of $12,-949.29.
There was more or less conflicting evidence before the referee and, according to the testimony of an expert accountant, much irregularity appeared in the books of account.
It appeared that the recorded receipts of money according to the books exceeded , the, actual bank deposits by an amount of $4,454.84, which was the basis of the fourth charge in the trustee’s petition. There was testimony tending to show that this sum had been, in part at least, disbursed in payment of certain creditors. The referee, however, found that the evidence was not sufficient to show that the sum of $4,454.84 was diverted by Berman from the business.
The expert accountant who examined the books after bankruptcy found that the books did not balance, and in order to make up a trial balance he was obliged to make a charge on the debit side of the cash account of $4,042.95. It is not clear from the testimony whether these two sums of approximately $4,000 had any connection with each other, or whether each was the result of irregularities in keeping the books of account.
It is contended, however, that the necessary additional cash entry, in order to balance the accounts, would indicate that there had been sales of merchandise in addition to the amount found by the referee, and that the total sales should be $13,175.16 instead of the sum of $9,132.21, on which the referee based his order.
The expert accountant testified that the two discrepancies might be accounted for as the result (1) of additional sales of merchandise; or (2) cash receipts from sales of merchandise prior to November 9, 1931. The referee, however, found that since it required an entry of $4,042.95 in order to balance the books of the corporation, it tended to show a further “unexplained shortage in merchandise” of about $4,000 rather than additional sales, but it was not clear from the testimony that this merchandise was taken and concealed by Berman. This finding evidently accounts for his general finding upon which the order was based that there was an unexplained shortage of $12,949.29.
We think the referee from all the evidence was warranted in finding that there was an unexplained shortage of merchandise for whieh the appellant was accountable, totaling $12,949.29, and that the checks, records, and books of account described in his order were wrongfully withheld from the trustee by the appellant; and that the .evidence before him was sufficient to warrant a so-called “turn-over order.” Oriel v. Russell, 278 U. S. 358, 49 S. Ct. 173, 73 L. Ed. 419.
It is further urged by the appellant that the. order is not sufficiently definite to enable him to comply therewith, but we think the following cases clearly support it: Kirsner v. Taliaferro (C. C. A.) 202 F. 51; Hirsch v. Schilling (C. C. A.) 28 F.(2d) 171; In re Cohan (C. C. A.) 41 F.(2d) 632; Prela v. Hubshman, 278 U. S. 358, 49 S. Ct. 173, 73 L. Ed. 419; Epstein v. Steinfeld (C. C. A.) 210 F. 236; Sheinman v. Chalmers (C. C. A.) 33 F.(2d) 902; and it clearly can be sustained under the ease of Cooper v. Dasher, 290 U. S. 106, 54 S. Ct. 6, 78 L. Ed. -, decided by the Supreme Court on November 6, 1933.
The order of the District Court is affirmed with costs.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_r_fed | 1 | 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.
Gene R. AUSTIN, Appellant, v. UNITED STATES of America, Appellee.
No. 12325.
United States Court of Appeals Sixth Circuit.
June 10, 1955
Irving Harris, Cincinnati, Ohio, for appellant.
John H. Reddy, Chattanooga, Tenn. and James M. Meek, Knoxville, Tenn., for appellee.
Before MARTIN, MILLER and STEWART, Circuit Judges.
PER CURIAM.
On this appeal from an order of the district court denying appellant’s motion to vacate sentence, his court-appointed attorney, both in oral argument and in brief, has ably presented the contention that appellant was erroneously deprived of his rights in being permitted to defend himself without the assistance of counsel, even though he himself had requested such privilege; that defendant was erroneously convicted of violation of the Dyer Act, 18 U.S.C.A. §§ 10-2311-2313, where the only evidence of transportation consisted of proof of the sale of the stolen vehicle; that defendant should have been permitted to be present in person when his motion to set aside the judgment of conviction and sentence as to him was heard by the district court; and that conviction for the transporting in interstate commerce of a stolen automobile and the sale of the automobile knowing it to have been stolen do not permit the imposition of consecutive sentences of five years each.
None of these propositions, though well argued, is in our opinion sound. See York v. United States, 6 Cir., 299 F. 778; United States v. Spradley, D.C., 65 F. Supp. 136, opinion by District Judge Swinford, affirmed 6 Cir., 162 F.2d 203; Crawford v. United States, 6 Cir., 214 F.2d 313; to the effect that the fact that both charges relate to and grow out of one. transaction does not make a single offense where two are defined by statute.
It is well established that it is unnecessary that a defendant be present at the hearing of his motion to set aside a judgment of conviction and sentence, where no issue of fact is presented for consideration. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. Here, we are confronted with the issue of our right to review a jury verdict determining a fact issue; and it is thoroughly established that a motion to vacate sentence is not to be employed as a substitute for appeal. Goss v. United States, 6 Cir., 179 F.2d 706.
The judgment of the district court is affirmed;- and it is so ordered.
Question: 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.
Answer: |
songer_initiate | F | 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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RALPH PRINTING AND LITHOGRAPHING COMPANY, Respondent.
No. 18570.
United States Court of Appeals Eighth Circuit.
July 6, 1967.
Nancy M. Sherman, Atty., N.L.R.B., for petitioner and Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Anthony J. Oba-dal, Atty. for N.L.R.B., were on the brief.
John E. Tate of Nelson, Harding, Ack-lie, Leonard & Tate, Omaha, Neb., for respondent and filed brief.
Before MATTHES, BLACKMUN and MEHAFFY, Circuit Judges.
MATTHES, Circuit Judge.
This case is before the Court upon the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151-168 (1959), for enforcement of its order issued June 6, 1966 against Respondent Ralph Printing and Lithographing Company. The Board’s decision and order are reported at 158 N.L.R.B. No. 128. No jurisdictional issue is presented. We modify the order as hereinafter set out and grant enforcement of it as so modified.
Respondent, a Nebraska corporation, is engaged in the business of commercial printing and lithographing in Omaha, Nebraska. During September, 1964 the Lithographers and Photoengravers International Union, AFL-CIO, Local 38 L, began a union organizational drive among Respondent’s employees. On the evening of September 18, 1964 the Union representative, Melford L. Galbraith, held a meeting with the employees and distributed authorization cards to them. Galbraith explained that in signing the authorization cards the employees were authorizing the Union to act as their collective bargaining representative, that the cards would enable him to demand recognition, and that if recognition were granted the Union would proceed to negotiate with Respondent. Nineteen authorization cards were signed by the employees on September 18th. During the next ten days Galbraith obtained a total of 24 authorization cards in a unit later found to comprise a total of 26 employees.
Armed with his authorization cards Galbraith conferred with Roy and John Ralph, Respondent’s President and Vice-President, and requested recognition for the Union. He asserted that his Union held signed authorization cards from a substantial majority of Respondent’s employees, numbering over 90%. Roy Ralph refused the request for recognition and expressed a desire to proceed only through a Board election. Galbraith offered to submit the authorization cards to a mutually acceptable third party to determine the Union’s majority status, but Ralph declined the offer and reaffirmed his intention to await the outcome of a Board election. Galbraith informed the Ralphs that his Union represented all of Respondent’s production and maintenance employees, including pressmen. Mr. John Ralph denied the purport of this conversation and stated that Galbraith did not specify the composition of the unit he was seeking to represent, and thus left him in doubt as to whether office-clericals, supervisors and certain other employees were included in the unit sought to be represented.
On the same day, after the conference, Galbraith' filed a petition with the National Labor Relations Board requesting a representation election among Respondent’s employees. On October 29th, a pre-election hearing was held and on November 20th, the Regional Director ordered an election to be conducted on January 7, 1965.
Subsequently on December 24, 1964 Respondent’s employees, whose normal quitting time was 4:00 P.M., worked through their half-hour lunch period and were released at 1:00 P.M. in the afternoon without loss of pay. Similarly on December 31, 1964 the employees were released at 3:00 P.M., one hour early. Several employees disclosed that Respondent had no set policy on the amount of time off granted on a day preceding a holiday, but that such time off fluctuated with the amount of work orders that had to be filled. The past practice of Respondent, however, as revealed by the testimony of employees Ray Angus and Virgil DeMars, was usually to grant approximately an hour off before Christmas, and little or no time off prior to New Years.
On January 4, 1965, three days before the scheduled election, Supervisor Donald Higgins approached Ray Angus, a lino-type operator employed by Respondent for ten years, at his work station and inquired whether Angus intended to attend the union meeting that night. Upon being advised that Angus would attend, Higgins purportedly asked Angus so advise him as to who was present at the meeting. Angus further testified that Higgins requested him to ask certain questions at the meeting relating to the Union’s contract with another printing company. Angus further asserted that on January 6th Higgins thanked him for asking several questions at the meeting. Higgins categorically denied having any such conversation with Angus.
The following morning, the Secretary-Treasurer of the Company, Sylvia Fitch Middleton, showed Angus a pink scratch pad on which were written the names of twelve employees who had attended the union meeting the previous evening. Angus testified that Miss Fitch asked him to verify the correctness of the list, and he replied that it was correct. Miss Fitch also inquired of Angus whether an employee, John Dormer, or any of the “new help” attended the union meeting. Subsequently, Angus told three of his fellow employees that the Company had a list of those who had attended the meeting. Miss Fitch repudiated the existence of any such list and denied questioning any employee with reference to his or his coworker’s union activities.
On January 7th the Board conducted an election among Respondent’s eligible maintenance and production employees. The Union lost by a narrow margin of 13 to 12. Angus’ undisputed testimony, corroborated in substance by Virgil De-Mars, was to the effect that immediately following the balloting, Vice-President John Ralph happily announced the results of the election, and thanked those employees who had confidence in voting for the Company. Ralph asserted there would be no changes within thirty days and that it would take that long before there would be any improvements. On January 12th, the Union filed timely objections to conduct affecting results of the election. During the pendency of these objections Respondent’s employees received a notice on February 12th that they would receive a ten cent per hour increase in pay effective February 19th.
On the above facts the Board found that Respondent violated Section 8(a) (1) of the Act by coercively interrogating employee Angus about his union activities, by requesting him to report on the union activities of his fellow employees, and by creating the impression of surveillance among the employees. The Board also found that Respondent violated Section 8(a) (1) by granting its employees benefits prior to the election and by promising and granting them benefits immediately thereafter, during the period in which objections to the election could be filed. The Board further concluded that Respondent violated Section 8(a) (5) and (1) by refusing to bargain with the Union on or after October 5th, at which time the Union represented a majority of its employees.
The Board ordered Respondent to cease and desist from the unfair labor practices found, and, upon request, to recognize and bargain collectively with the Union.
SECTION 8(a) (1) — INTERROGATION AND IMPRESSION OF SURVEILLANCE.
Contrary to Petitioner’s intimation, the record in this case does not disclose a background of open hostility to the Union by the Respondent. These alleged Section 8(a) (1) violations are based almost exclusively on the testimony of a single employee, Ray Angus, whose testimony was controverted throughout by several of Respondent’s witnesses. We are mindful, however, that questions of credibility are primarily a matter for Board determinations and not for this Court. N. L. R. B. v. Comfort, Inc., 365 F.2d 867, 871 (8th Cir. 1966); N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534, 538 (8th Cir. 1963).
Accepting Angus’ version of the situation, on a single occasion one of Respondent’s supervisors, Donald M. Higgins, inquired of Angus’ union activities, and asked him to report to the Company on the union activities of his co-workers. An employer’s interrogation of its employees, however, is not unlawful per se, unless conducted with such anti union animus as to be coercive in nature. Higgins’ interrogation of Angus, not in itself threatening or coercive, would not violate Section 8(a) (1) unless it were conducted against a background of employer hostility and discrimination towards unionization, such as would induce in its employees a fear of reprisal for lawfully pursuing their union activities. Banner Biscuit Company v. N. L. R. B., 356 F.2d 765, 769-70 (8th Cir. 1966) ; N. L. R. B. v. Ritchie Manufacturing Company, 354 F.2d 90, 99 (8th Cir. 1965). Cf. N. L. R. B. v. Morris Novelty Co., Inc., 378 F.2d 1000 (8th Cir. June 19, 1967). The circumstances surrounding Higgins’ interrogation negative any inference of coercion. The questioning of Angus was not part of any employer plan of systematic intimidation of its employees, but at best was isolated and casual in nature. The questioning, moreover, was totally devoid of any coercive statements, which are usually characteristic of an unlawful interrogation. This isolated form of interrogation, we believe, was insufficient to violate the rights of Respondent’s employees under Section 8(a) (1). In summary, we believe that the Board’s finding of a coercive interrogation is not supported by substantial evidence in the record.
We are not prepared, however, to accord similar protection for the more aggravated demeanor of Miss Fitch. Her conduct, we feel, inhibited the employees’ pursuit of their union activities. Miss Fitch attempted to verify on the Company’s behalf the names of those employees who had attended a previous union meeting. The evidence relating to this charge fully supports the finding that Angus and the three other employees to whom he disclosed the existence of the list of Union adherents were left with the clear impression that Respondent was keeping its employees’ union activities under surveillance. An impression of surveillance might well instill in the employee a fear of reprisal from the employer. Such conduct is violative of Section 8(a) (1) as it could inhibit the right of employees to pursue their union activities untrammeled by the fear of possible employer economic coercion or other forms of retaliation. See, e. g., N. L. R. B. v. Community Motor Bus Company, 335 F.2d 120, 122 (4th Cir. 1964); Hendrix Manufacturing Company v. N. L. R. B., 321 F.2d 100, 104-105 (5th Cir. 1963); N. L. R. B. v. United Wire and Supply Corporation, 312 F.2d 11, 13 (1st Cir. 1962); N. L. R. B. v. Des Moines Foods, Inc., 296 F.2d 285, 287 (8th Cir. 1961); N. L. R. B. v. Hoffman-Taff, Inc., 276 F.2d 193, 198 (8th Cir. 1960).
SECTION 8(a) (1) — PRE-ELECTION AND POST-ELECTION BENEFITS.
The Board found that Respondent’s conferral of economic benefits during the election period in the form of increased holiday time on December 24, 1964 and December 31, 1964 violated Section 8(a) (1) of the Act. There is no doubt that the granting or announcement of economic benefits during a union organizational campaign or during the pendency of a representation election constitutes unlawful interference with the employees’ protected right to organize. National Labor Relations Board v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). We are convinced, however, that the benefits conferred by Respondent here fall far short of the economic benefits condemned in Exchange Parts Co., supra. In the latter case, one of the economic benefits found to be a violation of the Act was an extra “floating holiday,” which would be taken on the employees’ respective birthdays. In questioning the propriety of such benefits, the Court stated:
“We think the Court of Appeals was mistaken in concluding that the conferral of employee benefits while a representation election is pending, for the purpose of inducing employees to vote against the union, does not ‘interfere with’ the protected right to organize.
“ * * * We have no doubt that it [Section 8(a) (1)] prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” 375 U.S. at 409, 84 S.Ct. at 459.
The record here, however, does not permit the inference that Respondent intentionally deviated from an established practice as to pre-holiday time off for the purpose of inducing its employees to vote against the Union. On the contrary the testimony of several employees and management representatives unequivocally established that Respondent had no established policy as to the allotment of pre-holiday time off but that such time off was proportionate to its workload. It was customary to release the employees approximately an hour ahead of time. In view of Respondent’s flexible policy, we do not consider the additional two and one-half hours on December 24th and the oiie hour on December 31st materially significant. Rather, we think, it falls within the “de minimis” rule and does not violate Section 8(a) (1).
Respondent’s post-election benefits, however, stand on a somewhat different footing. Immediately following the favorable results of the election, before the Union had an opportunity to file its objections to the election, Respondent, through its Vice-President, John Ralph, suggested to its employees that there would be “improvements” after thirty days. In the interim, on January 18th, the Union filed its unfair labor practice charges with the Board to upset the election. Despite the pendency of these objections, however, Respondent initiated its improvements in the form •of a ten cent per hour wage increase.
In light of Respondent’s pre-election conduct, the likelihood that the Union would file objections to the conduct of the election cannot be considered remote. The impact of Respondent’s well timed wage increase is clear, for it would tend to seriously impinge on the employees’ choice of a bargaining representative in the event the Board •ordered a second election. The announcement of the wage increase and the increase itself were clearly tantamount to an expression of approval by the Company of the Union’s defeat.
The timeliness of Respondent’s announced benefits as well as their unconditional nature warranted the inference that further benefits would be forthcoming if there were a continued rejection of unionization. We cannot ignore the effect on the employees’ freedom of choice which such post-election benefits may have, particularly where a second election is ordered. For these reasons we feel that such benefits plainly violate Section 8 (a) (1). Cedartown Yarn Mills, Inc., 84 N.L.R.B. 1, 8, enforced per curiam, Cedartown Yarn Mills, Inc. v. N. L. R. B. 180 F.2d 579 (5th Cir. 1950); The Hills Brothers Company, 67 N.L.R.B. 1249, 1255, enforced per curiam, N. L. R. B. v. Hills Bros. Co., 161 F.2d 179 (5th Cir. 1947); Northwest Engineering Company, 148 N.L.R.B. 1136, 1144-45 (1964). See also Amalgamated Clothing Workers v. N. L. R. B., 345 F.2d 264, 266 (2d Cir. 1965) (half a day off without loss of pay to celebrate defeat of union).
SECTION 8(a) (5) — REFUSAL TO BARGAIN.
The Board found that Respondent violated Section 8(a) (5) of the Act by refusing to recognize and bargain with the Union as the authorized collective bargaining representative of a majority of its employees. The Respondent, despite the uncontradicted evidence that the Union represented an overwhelming majority of its employees, persistently demanded that the representation question be determined through the process of a Board conducted election. Respondent, however, has no such vested right to an election. Where a labor organization has been designated by a majority of the eligible employees as their representative in an appropriate bargaining unit, the employer must recognize and bargain with such an organization, irrespective of whether or not it has been certified by the Board as the result of an election. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 72, 76 S.Ct. 559, 100 L.Ed. 941 (1956); Colson Corporation v. N. L. R. B., 347 F.2d 128, 135 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965); N. L. R. B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir. 1962), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962). If, however, there had been substantial evidence to show that Respondent doubted in good faith that the Union represented a majority of its employees in the appropriate unit, it could justifiably refuse to recognize and bargain with the Union, until the latter’s claim had been established through the procedure of a Board election. N. L. R. B. v. Comfort, Inc., supra. Respondent predicates its good faith doubt of the Union’s majority status on the fact that it was unaware of the composition of the bargaining unit. Respondent’s Vice-President, John Ralph, did express some misgivings as to whether Clyde Nelson and Donald Higgins, supervisory employees of Respondent, were excluded or included in the unit the Union sought to represent. Ralph also stated that Galbraith did not express to him whether he intended to include clerical employees, truck drivers, and shipping employees within the unit. The fact remains, however, that even apart from these disputed employees, the Union still represented a substantial majority of Respondent’s employees at all times. Counsel for Respondent in the trial stipulated that the Union represented a majority of Respondent’s employees at the time of the request for recognition, though he would not specify the extent of the majority.
At no time, moreover, did either of the Ralphs verbally express any doubt as to the Union’s majority status. They refused to submit the authorization cards to a mutually acceptable third party to verify the Union’s claims. Their failure to give the Union any opportunity to substantiate its claims of representation is inconsistent with the assertion of good faith. In view of the Union’s substantial majority and Respondent’s subsequent conduct, the Board was justified in concluding that Respondent withheld recognition, not as the result of a good faith doubt, but in order to undermine support for the Union and dissipate the very majority which it contended was-in doubt.
THE REMEDY
In the final analysis, however, Respondent contends that, even assuming that the Board’s findings and conclusions are supported by substantial evidence, the Board nevertheless exceeded its powers in issuing a bargaining order, rather than directing a second election. Petitioner, on the other hand, asserts that a second election is not an appropriate remedy, in that experience has demonstrated that a majority of rerun elections favor the party who has interfered with the original election.
In view of our holding that Respondent has failed to recognize and bargain with the Union in good faith at a time when it represented a majority of Respondent’s employees, we find no alternative but to enforce the Board’s-remedy for the 8(a) (5) violation. A ruling, suggested by Respondent, that would condition the Board’s - bargaining order on the outcome of a second election, would be inconsistent with our determination of a 8(a) (5) violation.
In summary, we hold: (1) the Board’s findings that Respondent violated Section 8(a) (1) by interrogation, and by granting pre-election benefits are not supported by substantial evidence; (2) the Board’s findings that Respondent violated Section 8(a) (1) by creating the impression of surveillance and by granting post-election benefits are supported by substantial evidence; (3) the Board’s finding that Respondent violated Section 8(a) (5) by refusing to bargain is supported by substantial evidence.
The Board’s findings and order are accordingly modified, and as modified, enforcement is granted.
. Local 38 L was later redesignated as Local 203 as a result of a merger with Local 43 P of the same Union.
. On November 20, 1964 the Board’s Regional Director found the appropriate collective bargaining unit to consist of all of Respondent’s production and maintenance employees, a total of 26 employees.
. In N. L. R. B. v. Ambox, Incorporated, 357 F.2d 138, 141 (5th Cir. 1966), the Company’s grant of benefits while objections to the election were pending was not considered to violate Section 8(a) (1). The Court made it clear, however, that the increases were to be granted retroactively as soon as the election objections were cleared up, and the promise of benefits was not made dependent on the outcome of the election proceeding.
. The evidence disclosed that if the disputed truck drivers, janitors, receiving or shipping clerks had been excluded, the appropriate unit would then have numbered twenty-three instead of twenty-six employees.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_geniss | G | 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".
Albert HARTWICK, Elizabeth Hartwick, Plaintiffs-Appellants. v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
No. 72-1280.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 12, 1972.
Decided Jan. 18, 1973.
James A. Tuck, Goodman, Eden, Mil-lender, Goodman & Bedrosian, Detroit, Mich., for plaintiffs-appellants; William H. Goodman, Detroit, Mich., on brief.
Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendant-appellee; John A. Marxer, Detroit, Mich., on brief.
Before CELEBREZZE and MILLER, Circuit Judges, and HOGAN , District Judge.
The Honorable Timothy S. Hogan, United States District Judge for the Southern District of Ohio, sitting by designation.
WILLIAM E. MILLER, Circuit Judge.
This is a negligence action against United States Steel Corporation arising from the injury of Albert Hartwick, the appellant, while he was foreman for the C-Way Construction Company. The United States Army Corps of Engineers had contracted with C-Way, appellant’s employer, for the construction of a lock on the Crooked River near Alanson, Michigan. The appellant was in charge of the steel pile driving crews.
In order to construct the lock it was necessary first to divert the river and to fill the river bed with gravel. Two cells, each 15 feet wide and 80 feet long, were then to be contructed on the sides of the old river bed. The cell walls were to consist of a continuous web of sheet piling to be driven some 27 feet into the ground by a pile driver. The sheet piling was manufactured by the 'appellee, United States Steel Corporation.
The sheets of piling are “Z” shaped, about 18 inches wide and varying in length from 27 to 28 feet. On each edge of the piling and extending the entire length of one edge there is a ball or a socket allowing the sheets of piling to be attached to one another. To assemble the piling around the cell, it is necessary to lift a sheet some 30 feet into the air and align the ball of that sheet with the corresponding socket of the adjacent sheet. After the ball and socket are initially aligned, the sheet piling is lowered into place and driven into the ground. Correctly manufactured, the sheets will form a straight line when installed. The sheets of piling manufactured by the ap-pellee, however, would not align properly. When the pilings were threaded together the sheets would be from 4 to 6 inches out of alignment. It was un-eontradicted at trial that appellee was aware of this defect in the piling when it was manufactured.
In order to correct the defect the appellant’s employer used a system of chains and chain binders to pull the piling back into alignment, so that it could be correctly driven into the ground. During the pile driving process, tension is placed on the chains and binders as they hold the pile in alignment. At the time of the accident the appellant was releasing the tension on a chain and chain binder attached to a pile that had been driven into the ground. When the binder was first attached to the chain holding the pile, a small wire had been placed around the handle of the binder to prevent it from being inadvertently knocked open. To release the tension on the chain and binder, the appellant removed the wire from the binder’s handle. The handle snapped open, striking the appellant on the shin and causing the injury.
After completion of the appellant’s proof, the appellee moved for a directed verdict. This motion was granted by the district court. In its ruling on the motion the district court found that the appellee’s manufacture of the pilings was not the proximate cause of the appellant’s injury.
The jurisdiction of the court was based upon diversity of citizenship. Directed verdicts are not favored in Michigan. Blazo v. Neveau, 382 Mich. 415,170 N.W.2d 62 (1969); See Serratoni v. Chesapeake & Ohio Ry., 333 F.2d 621 (6th Cir. 1964). The standard to be applied for directed verdicts is succinctly stated in Blazo:
On a motion for directed verdict it is the duty of the trial judge to review all the evidence, giving to the opposing party the benefit of all conflicts and inferences, and decide if there is any evidence from which the jury could reasonably find a verdict contrary to the moving party. 382 Mich. at 424, 170 N.W.2d at 66.
If reasonable minds can differ, the question should be submitted to the jury. Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).
The district court found that the injury was not a natural event flowing from the appellee’s “negligent construction of the pilings . . . . ” In so ruling the court thus assumed that the appellee was negligent in its manufacture of the pilings and there is substantial evidence in the record to support this conclusion. The Michigan Supreme Court has made clear that the question of proximate cause, in case of doubt, is for the jury. As the court stated in Davis v. Thornton, supra at 145, 180 N. W.2d at 15.
But determination of negligence alone does not end the inquiry. Once a jury or judge has found that the defendant was negligent and that the plaintiff suffered injuries, it must be determined, whether the plaintiff’s injuries were caused by the defendant’s wrongful conduct and, then, if the defendant did cause the injuries, judge whether the plaintiff's injuries were too insignificantly related to or too remotely effected by the defendant’s negligence.
Of all the elements necessary to support recovery in a tort action, causation is the most susceptible to summary determination for it usually amounts to a logical connection of cause to effect. However, any doubts about the connections between the causes and the effects, should be resolved by the jury.
In Parks v. Starks, 342 Mich. 443, 448, 70 N.W.2d 805, 807 (1955), the court quoted with approval from 38 Am.Jur. Negligence, § 55 at 705 (1941):
The proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time, distance, or space. Assuming that there is a direct, natural, and continuous sequence between an act and an injury, . . . the act can be accepted as the proximate cause of the injury without reference to its separation from the injury in point of time or distance.
This holding was reaffirmed by the court in McKine v. Sydor, 387 Mich. 82, 88, 194 N.W.2d 841, 844 (1972).
Since- we must assume that the appellee’s manufacture was negligent, under the applicable Michigan precedents the element of the foreseeability of the harm is removed. As noted in Davis v. Thornton, supra, 384 Mich. at 146, 180 N.W.2d at 15:
The jury must then bridge the gap between the plaintiff’s injuries and the defendant’s negligence. This is the determination of cause and the remoteness of the effect. Once negligence is determined, foreseeability of harm should no longer be considered.
Causation is a process of logical determination, while the significance of the connections — remoteness—is a policy determination.
There is no doubt from the record before us that the appellee’s negligent construction was at least one of the causes of the appellant’s injury. Plainly the accident and injury would not have occurred absent such negligence. Thus we are left with the question of remoteness. As the Michigan Supreme Court has demonstrated, such an issue, as that of negligence itself, should ordinarily be determined by the jury:
The determination of remoteness, however, should seldom, if ever, be summarily determined.
Both the determination of remoteness and of negligence should almost always be left to the jury. Davis v. Thornton, supra, 384 Mich. at 147-148, 180 N.W.2d at 16.
Under these principles declared by the highest court of Michigan, we feel that there is sufficient connection between the appellee’s negligent construction or manufacture of the pilings and the appellant’s injury that reasonable minds could differ on the issue of causation and hence that the issue of proximate cause should have been left to the jury.
Although the district court made reference to the possibility of contributory negligence, he made no specific ruling on this issue and we therefore express no opinion with respect to it.
The judgment of the district court is reversed and the action is remanded for further proceedings not inconsistent with this opinion.
. This opinion specifically refers to the appellants, Albert Hartwick and Elizabeth Hartwick, only in the singular since any possible recovery by Elizabeth Hartwick is dependent upon her husband’s negligence action. The complaint alleges that she has been damaged by “Loss of society, companionship, love, affection and services of her husband . . . .”
. We need not determine here whether the rule governing the direction of verdicts is “substantive” or “procedural” within the meaning of the Erie rationale. This is true because the federal and Michigan rules appear to be substantially identical. For the Federal rule see 5A Moore, Federal Practice If 50.02(1) (2d ed. 1971). For the Michigan rule see the cases cited in this opinion, particularly Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_genapel2 | I | 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.
James Edward WINGO, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 13187.
United States Court of Appeals Sixth Circuit.
May 31, 1957.
James Rutherford, Nashville, Tenn., for appellant.
Fred Elledge, Jr., and James R. Tuck, Nashville, Tenn., for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
PER CURIAM.
Appellant, in this proceeding under Section 2255, Title 28 U.S.Code, seeks to vacate judgment imposed in the U. S. District Court on the ground of prejudicial newspaper publicity during the overnight recess of the jury, during which the jurors separated and went to their respective homes. Briggs v. United States, 6 Cir., 221 F.2d 636, 638. Following a hearing in which appellant introduced the newspaper articles complained of but no other evidence on the issue, the District Judge dismissed the proceeding.
The question presented could have and should have been raised by motion for mistrial in the trial of the case in the District Court. No appeal was taken from the judgment on the verdict. Compare Briggs v. United States, supra; Krogmann v. United States, 6 Cir., 225 F.2d 220, 228. The provisions of Section 2255, Title 28 U.S.Code, cannot be used as a substitute for appeal. Sunal v. Large, 332 U.S. 174, 178-179, 67 S.Ct. 1588, 91 L.Ed. 1982; Ford v. United States, 6 Cir., 234 F.2d 835, 836.
The appellant is in custody under a state sentence, not the sentence in the federal court, which he is attacking in this proceeding. If the sentence under attack should be held invalid, it would not result in appellant’s release from confinement. The present proceeding is premature and will not lie. Duggins v. United States, 6 Cir., 240 F.2d 479.
The judgment is affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_geniss | G | 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".
CENTRAL PAPER CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 11508.
United States Court of Appeals Sixth Circuit.
Decided Nov. 13, 1952.
Melva M. Graney, Washington, D. C. (Ellis N. Slack, A. F. Prescott, Virginia H. Adams, Washington, D. C., on the brief), for respondent.
Wilbur A. Giffen, Chicago, 111., of counsel, KixMiller, Baar & Morris, Chicago, 111., on the brief, for petitioner.
Before SIMONS, Chief Judge, and Mc-ALLISTER and MILLER, Circuit Judges.
MILLER, Circuit Judge.
The Tax Court dismissed Petitioner’s application for a redetermination of its excess profits tax liability on the ground that it lacked jurisdiction in the matter, from which ruling the Petitioner has appealed.
The Petitioner, Central Paper Company, Inc., a Michigan 'Corporation, filed claims for refund, relating to' the application of § 722 of the Internal Revenue Code, 26 U.S. C.A. § 722, with respect to excess profits taxes for the fiscal years ending June 30, 1943, 1944 and 1945. The Commissioner, by letter of September 6, 1950, rejected the applications. The letter also advised the taxpayer — “Within ninety days * * * from the date of the mailing of this letter, you may file a petition with The Tax Court of the United States, at its principal address, Washington 4, D. C., for a redetermination of your excess profits tax liability under the Internal Revenue Code.” This was in accordance with the provisions of § 732(a) Internal Revenue Code, 26 U.S.C.A. § 732(a).
The taxpayer prepared such a petition which was mailed at Chicago, Illinois, properly stamped and legibly addressed to “The Tax Court of the United States, Washington 4, D. C.” The wrapper on the package which contained the petition shows a Chicago postmark of 3:30 p. m. on December 1, 1950. The docket of the Tax Court carries the following entry: “1950, December 7. Petition received and filed.” The petition itself was rubber stamped “Filed December 7, 1950.” December 7, 1950, was 92 days after the date of the mailing by the Commissioner of the registered notice of disallowance of the claims on September 6, 1950. The Commissioner moved that the proceeding be dismissed for lack of jurisdiction, due to the failure of the petitioner to file its petition with the Tax Court within the 90 days provided by the statute. The Tax Court sustained the motion, without opinion.
In connection with the Tax Court’s consideration of the motion to dismiss, it was stipulated between the parties that the Court should consider as being in evidence the cover of the package which .contained the petition; that there was attached to the notice of disallowance in the above matter a slip of instructions which stated that “appeals should be addressed to'The Tax Court of the United States, Washington 4, D. C.”; that the Court should consider as evidence the statement of the postmaster at Chicago, Illinois, that a record is made of pouches of mail that miss connection with intended trains and also unusual conditions that would interrupt normal operation of trains enroute to destination would be recorded, that there was no record of any such irregularity in the handling of mail at the Chicago postoffice on December 1, 1950, or any interruptions in transportation service that would account for a first-class piece of mail addressed to The Tax Court of the United States, Washington 4, D. C., not reaching the addressee according to schedule, and that a first-class piece of mail addressed to The Tax Court of the United States, Washington 4, D. C., showing postmark in Chicago on December 1, 1950, 3:30 p. m. would in the normal course have arrived at Washington, D. C., at 4:30 p. m. on December 2, 1950; that the Court should consider as evidence the statement of the postmaster at Washington, D. C., that The Tax Court of the United States rents lock box No. 70 at the Benjamin Franklin Station, which is about five inches square, that because of the volume of mail received by The Tax Court their mail is not placed in this box but is. piled on a ledge in no special receptacle until called for by a messenger from The Tax Court, that The Tax Court is not the only box holder at said station for whom mail is retained! in no special receptacle until called for, that on December 2, 1950, there were no unusual conditions or circumstances existing in Washington, D. C. Post Office which would cause delay in the normal handling of mail arriving at Washington on that date, and that a piece of first-class mail addressed to The Tax Court of the United States; Washington, D. C., and arriving in the Washington Post Office at approximately 4:30 p. m. on December 2, 1950 would in normal course have been received by the Box Section of the Benjamin Franklin Station on the same day.
In support of The Tax Court’s ruling, the Commissioner contends that the time limitation for filing the petition is statutory and jurisdictional, and that failure on the part of the taxpayer to file such a petition with the Tax Court within the 90-day period provided is a bar to its consideration. Such is the well established rule, which is not challenged by the taxpayer. Di Prospero v. Commissioner, 9 Cir., 176 F.2d 76; Stebbins’ Estate v. Helvering, 74 App.D.C. 21, 121 F.2d 892; Poynor v. Commissioner, 5 Cir., 81 F.2d 521.
We also agree with the Commissioner’s contention that a failure to file the petition within the specified 90-day period, caused by matters over which the taxpayer has no control, such as delay in the mail service enroute from the taxpayer to the Tax Court, Di Prospero v. Commissioner, supra, failure of airplane mail service to function because of adverse weather conditions, Stebbins’ Estate v. Helvering, supra, or because of other equitable considerations, Edward Barron Estate Co. v. Commissioner, 9 Cir., 93 F.2d 751, 753, does not prevent the rule from being applicable. The taxpayer does not contend otherwise.
But these rules do not prevent the Court from determining as a matter of law, for the purpose of computing the ninety-day period provided, the date on which the notice of disallowance was mailed, Eppler v. Commissioner, 7 Cir., 188 F.2d 95, or the date on which the petition was “filed,” McCord v. Commissioner, 74 App.D.C. 369; 123 F.2d 164; Edward Barron Estate Co. v. Commissioner, supra; Arkansas Motor Coaches v. Commissioner, 8 Cir., 198 F.2d 189, concurring opinion of Judge Johnsen at page 194. The present case does not involve any extension of the ninety-day period, but does involve merely a determination of the date on which the petition was “filed” with The Tax Court. Petitioner contends it was so filed on December 2, 1950, which was within the ninety-day period. The Commissioner contends it was filed on December 7, 1950, which was after the expiration of the ninety-day period.
When mail matter is properly addressed and deposited in the United States mails, with postage duly prepaid thereon, there is a rebuttable presumption of fact that it was received by the addressee in the ordinary course of mail. Dunlop v. United States, 165 U.S. 486, 495, 17 S.Ct. 375, 41 L.Ed. 799; Crude Oil Corp. v. Commissioner, 10 Cir., 161 F.2d 809; Boemer v. United States, 2 Cir., 117 F.2d 387, 389-390; Stern Bros. & Co. v. Burnet, 8 Cir., 51 F.2d 1042, 1045; Haag v. Commissioner, 7 Cir., 59 F.2d 516, 517. This presumption is applicable to the present case, and is strengthened by the testimony of the Postmasters at Chicago and Washington to the effect that there was no interruption to normal mail service between those points on December 1st and 2nd, 1950, and that in the normal course of mail the letter would have arrived at Washington about 4:30 p. m. on December 2, 1950. The presumption is not rebutted by the fact that the letter might possibly have been lost or misplaced by postal employees before delivery to the mail box of The Tax Court, in the absence of any evidence as to when it was placed on the ledge beside the mail box, or when it came into the possession of the messenger from The Tax Court. Hand & Johnson Tug Line v. Canada S. S. Lines, 6 Cir., 281 F. 779. Accordingly, in the present case we accept as a fact that the petition mailed by the taxpayer to The Tax Court was delivered in due course of mail to the ledge beside the lock box of The Tax Court on December 2, 1950.
We are of the opinion that such a delivery by the Post Office constituted delivery to The Tax Court, although not a physical delivery to the Clerk’s Office of The Tax Court. It had made delivery at the place directed by the addressee. At that time the Post Office had no further duty to perform in connection with its obligation to deliver. There is no twilight zone between delivery by the Post Office to the addressee, and receipt, either actual or constructive,, by the addressee.
The Commissioner contends that Rule 5 of the Rules of Practice of The Tax Court, 26 U.S.C.A. § 1111 requires that any document to be filed with the Court, must be filed in the office of the .Clerk of the Court during business hours. By Rule 1, business hours are from 8:45 a. m. to 5:15 p. m. The taxpayer addressed the petition to The Tax Court, using the address given to it by the Commissioner in the letter of disallowance. It was delivered to The Tax Court on December 2, 1950. It was delivered to The Tax Court’s lock box instead of to the Clerk’s office by direction of The Tax Court. Assuming for the purposes, of this case, without so holding, that Rule 5 was not waived by the action of The Tax Court in requiring its mail to be delivered to a lock box instead o!f at tfie Clerk’s Office, McCord v. Commissioner, supra, we are of the opinion that the processing and handling of the petition by Tax Court employees thereafter was no concern of the taxpayer. Failure or unreasonable delay on the part of Tax Court employees to transfer it from the lock box to the ‘Clerk’s Office, or to stamp it as filed after receipt in the Clerk’s Office, is not chargeable to the taxpayer. McCord v. Commissioner, supra; concurring opinion of Judge Johnsen in Arkansas Motor Coaches v. Commissioner, supra, 198 F.2d at page 194; Palcar Real Estate Co. v. Commissioner, 8 Cir, 131 F.2d 210, 213; Milton v. United States, 5 Cir, 105 F.2d 253, 255; Campbell v. Mason, 269 Ky. 128, 133, 106 S.W.2d 100. Treating Rule 5 as applicable, the petition was nevertheless legally filed in the Clerk’s Office at the latest on the next business day after December 2, 1950.
The judgment of The Tax Court is reversed and the case remanded for hearing."
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_respond2_1_2 | D | 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 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".
CUSHING et al. v. MARYLAND CAS. CO. et al.
No. 13887.
United States Court of Appeals Fifth Circuit.
July 31, 1952.
Rehearing Denied Oct. 9, 1952.
See 198 F.2d 1021.
James J. Morrison, Arthur A. de la Hous-saye, Raymond H. Kierr, Gerard A. Rault, New Orleans, La., for appellants.
Eberhard P. Deutsch, Brunswick G. Deutsch, New Orleans, La., for appellees.
Before HOLMES, STRUM, and RIVES, Circuit Judges-
STRUM, Circuit Judge.
This appeal is from a summary judgment dismissing, as to the insurers involved, five consolidated actions at law brought to recover damages for the death of five seamen who drowned when the tug boat “Jane Smith” collided with a ¡bridge, capsized and sank in navigable waters within the admiralty jurisdiction in Louisiana. Federal jurisdiction is asserted both under Sec. 33 of the Merchant Marine (Jones) Act of 1920, 46 U.S.C.A. § 688, and upon diversity of citizenship.
The suits are against Texas & Pacific Railway Company, owner of the bridge, and Maryland Casualty Company and Home Insurance Company, who are the liability insurance underwriters of the owner and charterer of the tug, insuring against loss of life by, or personal injury to, the crew of said vessel. The complaints allege that the deaths were due to the negligence of the bridge owner, and of the owner and •charterer of the tug.
Plaintiffs assert the right to directly sue the insurers under Louisiana’s “direct action” statute, Title 22, Sec. 655, La.Rev.Stat. 1950, LSA-R.S. 22:655, which provides in part: “The injured person or his or her heirs, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy, * * * and said action may be brought against the insurer alone or against both the insured and the insurer, jointly * * The policies involved were issued and delivered in Louisiana.
The dominant question is whether or not the statute applies to policies which protect the owner and charterer of a vessel against liability for personal injuries or accidental death suffered by the crew of a vessel in navigable waters. The district judge answered the question negatively. He was of the view that Sec. 655, supra, which relates to “liability” insurance, is confined to the ordinary type of liability insurance as defined in Title 22, Sec. 6(4), La.Rev. Stat.1950, LSA-R.S. 22:6(4), and does not extend to “Marine protection and indemnity insurance,” as defined in subd. (13) (e) of that title, which is the type of policy here sued upon. He was further of the view that to give effect to the direct action statute as to these policies would be an invasion of the field of exclusive federal jurisdiction over admiralty and maritime matters which would not only impair the characteristic features of general maritime law, but would contravene the essential purpose of limitation of liability proceedings in admiralty, under 46 U.S.C.A. § 183, which have ¡been instituted by this owner and charterer, and in which these plaintiffs have filed claims. As one of the policies also provides hull insurance, the district judge was further of the view that to the extent of plaintiffs’ recovery in the limitation proceedings, the owner would be compelled to surrender insurance money to the claimants therein, contrary to the rule established in Norwich & N.Y. Transp. Co. v. Wright, 13 Wall. 104, 80 U.S. 104, 20 L.Ed. 585, and in City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134, that an owner’s liability is confined to the value of the vessel after the damage, not before, and that insurance money belongs to- the owner, not to the claimants.
It appears to us that in enacting Sec. 655, supra, the Louisiana legislature used the term “liability insurance,” in its broad generic sense, meaning that form of insurance by which an insured is indemnified against liability on account of bodily injuries sustained by others. The statute is not limited to the one type of liability insurance defined in Sec. 6(4), Title 22, supra, but extends as well to marine liability insurance of the type here involved. The statute is remedial. It should be liberally construed to accomplish its obvious purpose, which is to- afford an injured person a direct action against a compensated insurer who has assumed ultimate liability. There is no- indication in Sec. 655 that the Louisiana legislature intended to deny the right of direct action to persons covered by marine policies, while extending it to all others. On the contrary, it appears to us that it was intended, so far as the state legislative powers are effective, to extend the right to all persons covered by what is broadly known as “liability insurance,” including policies of the type here in question. While the policies sued on cover marine activities, fundamentally they are ordinary contracts of indemnity insurance.
Title 28 U.S.C.A. § 1333, a part of the original Judiciary Act of 1789, provides that United States district courts shall have original jurisdiction, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, “saving to suitors in all cases all other remedies to which they are otherwise entitled.” Applying this clause in upholding the validity of the New York Arbitration statute as applied to a dispute under a charter party made and to be performed in that state, the United States Supreme Court said; “The ‘right of a common-law remedy,’ so saved to suitors, does not * * * include attempted changes 'by the states in the substantive admiralty law, but it does include all means other than proceedings in admiralty which may be employed to enforce the right or to redress the injury involved. * * * A state may not provide a remedy in rem for any cause of action within the admiralty jurisdiction. * * * But otherwise, the state, having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit. * * * In no case has this court held void a state statute which neither modified the substantive maritime law, nor dealt with the remedies enforceable in admiralty.” Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 44 S.Ct. 274, 277, 68 L.Ed. 582, 586. These principles are determinative here.
While Sec. 655, supra, confers upon an injured party a substantive right which becomes vested at the moment of the injury, it is not a right essentially maritime in character, nor one peculiar to admiralty or maritime jurisdiction, but is one which applies alike to all contracts of public liability insurance, regardless of whether the injury occurs ashore or afloat. There is nothing in it which undertakes to change the substantive admiralty law, nor does it undertake to deal with a remedy in courts of admiralty. The statute provides only an additional and cumulative remedy at law in the enforcement of obligations of indemnity voluntarily and lawfully .assumed ¡by the insurer. Thus the statute does not conflict with any feature of substantive admiralty law, nor with any remedy peculiar to admiralty jurisdiction. These suits are at law, not in admiralty.
Appellees, the insurers, further contend that the Jones Act, 46 U.S.C.A. § 688, creates a right of action against an injured seaman’s employer, but not against the employer’s liability underwriter, and that the State of Louisiana can not add to the rights created by the Jones Act. It is unnecessary, however, to determine that question. Even if there were no jurisdiction, nor any right of action, under the Jones Act, which we do not decide, diversity of citizenship exists between all plaintiffs and the defendant insurers, and more than $3,000.00 is involved in each suit. These circumstances support federal jurisdiction. The complaints contain averments which sufficiently assert liability upon general principles of negligence, and also for accidental death within tlie coverage of the policies sued upon, so that a cause of action is stated.
Appellees’ contentions over-mflate a relatively simple proposition with apparent, but unreal, technical problems. Stripped of illusory technicalities, the Louisiana statute merely creates in favor of one who has been wrongfully injured, an additional and cumulative remedy at law against an insurer who has agreed to indemnify the tort-feasor against liability, by subrogating the injured person to all the rights of the insured within the terms and limits of the policy. Other existing remedies are not in the least impaired or affected. New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R.2d 128. Such contracts of insurance are for the benefit of the public, as well as of the insured employer. Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351; West v. Monroe Bakery, Inc., 217 La. 189, .46 So.2d 122. The statute is simply a regulation by the state of insurance companies doing business within its boundaries, for which there is ample sanction in federal law. 15 U.S. C.A. §§ 1011, 1012, the McCarran Act. The limitation of liability statutes, 46 U.S. C.A. § 183 et seq., relate, not to “the business of insurance” as mentioned in the McCarran Act, but to the liability of shipowners. The object of that proceeding is to limit the liability of the owner, not to preclude injured persons from pursuing any remedy open to them against others. To permit such an action will not defeat the purpose of the federal limitation of liability statute, nor will it interfere with the harmony or uniformity of admiralty law in its international or interstate relations. That the remedy may not exist in states other than Louisiana is not a tenable objection. The same was true in Red Cross Line v. Atlantic Fruit Co., supra, involving the New York Arbitration statute.
The Louisiana statute is wholly a regulation of the liability of insurers doing business in Louisiana upon obligations voluntarily assumed by them there. We see no reason why it should not be applied to liability policies such as those here sued upon, even though the injuries were suffered upon navigable waters. Federal jurisdiction exists, and the complaints state a cause of action.
Reversed and remanded.
. The district judge said [99 F.Supp. 683]: “If these plaintiffs should be paid any part of their claims in the limitation proceedings, then the shipowner under his contracts of insurance has a right to bo reimbursed by his underwriters. If the underwriters’ exposure on the policies is exhausted in paying the claims in this case, then the shipowner’s right against his insurers will avail him nothing.
“The effect therefore of allowing these plaintiffs to proceed directly against the shipowner’s insurers -would be to force the owner to turn his insurance into the limitation proceeding as part of ‘the interest of such owner in such vessel’. This the owner is not required to do. City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134.”
. Gager v. Teche Transf. Co., La.App., 143 So. 62; Hudson v. Georgia Cas. Co., D.C., 57 F.2d 757.
. See also Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, and Great Lakes D. & D. Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756, holding that although admiralty affords no relief for wrongful death under general maritime lawr, an action in personam, may be maintained in admiralty under a state “wrongful death” statute to recover for a death upon navigable waters as a result of a maritime tort. (Statutory remedies for personal injures or death suffered by a seaman, or for wrongful death on the high seas, are now provided by 46 U.S.C.A. §§ 688, 761). Also, see Jarka Corp. v. Hellenic Lines, 2 Cir., 182 F.2d 916, 919, holding general New York law applicable to a stevedoring contract, which is a maritime contract. What was said as to “uniformity” in Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, has. been sharply limited by Standard Dredging Corp. v. Murphy, 319 U.S. 306, 63 S.Ct. 1087, 87 L.Ed. 1416.
. Fisher v. Home Indemnity Co., 5 Cir., 198 F.2d 218; New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R. 2d 128; Belanger v. Great American Indemn. Co., D.C.La., 89 F.Supp. 736; West v. Monroe Bakery, Inc., 217 La. 189, 46 So.2d 122.
. “Congress declares that the continued regulation * * * by the several States of the business of insurance is in tb© public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation * * * of such business by the several states.” 15 U.S.C.A. § 1011. “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance * * * unless such Act specifically relates to the business of insurance”. 15 U. S.C.A. § 1012(b).
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_usc1sect | 876 | 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 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
James Emerson MORRIS, Appellant, v. UNITED STATES of America, Appellee.
No. 7120.
United States Court of Appeals Fourth Circuit.
Argued Jan. 4, 1956.
Decided Jan. 11, 1956.
No appearance for appellant.
Robert L. Gavin, Asst. U. S. Atty., Greensboro, N. C. (Edwin M. Stanley, U. S. Atty., Greensboro, N. C., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal in a criminal case in which appellant was indicted for sending threatening letters through the mail in violation of 18 U.S.C. § 876. He pleaded guilty to one of the counts of the two count indictment and not guilty to the other count, but was convicted on that count after a trial at which he was represented by competent counsel appointed by the court. He noted an appeal from the sentence and judgment of the court but has filed no brief as required by our rules. The United States Attorney has made a motion to dismiss or affirm. We have examined the record and find no ground for any contention that the appellant was not properly tried and sentenced or that he was not guilty of the crimes charged against him. The judgment appealed from will accordingly be affirmed.
Affirmed.
Question: 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 18? Answer with a number.
Answer: |
songer_casetyp1_9-3 | I | 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 "miscellaneous".
STOLTZ v. UNITED STATES.
No. 8790.
Circuit Court oí Appeals, Ninth Circuit.
Oct. 24. 1938.
D. W. Doyle, of Conrad, Mont., for appellant.
John B. Tansil, U. S. Atty., and Roy F. Allen, Asst. U. S. Atty., both of Butte, Mont., and Norman MacDonald, Thomas E. Harris, and Oscar A. Provost, Attys., Department of Justice, all of Washington, D. C., for the United States.
Before GARRECHT, HANEY, and HEALY, Circuit Judges.
HANEY, Circuit Judge.
The court below granted appellee restitution of certain premises allotted to Indian wards and judgment for triple damages in the sum of $1496.25 with interest and costs. Appellant was defendant below.
The parties refer to the cause as an action for unlawful detainer. The allegations of the pleading filed by appellee, designated as a “Complaint”, however, seem to call for injunctive relief and apparently the cause was intended as a suit in.equity. Since the parties treat the cause as one at law, we assume for the purposes of our decision, that the equitable claims were insufficient or withdrawn.
The complaint alleged that the Indian allottees and wards of appellee leased, by writing and with the consent, authority and approval of appellee, certain real property on an Indian Reservation to appellant for the term from April 1, 1932 to and including March 31, 1936; and that on November 21, 1935, the wards, with the consent, authority and approval of appellee, leased a portion of the premises to one Idso for the term from April 1, 1936, to April 1, 1941. Idso paid the rental for the first year, in the sum of $493.75.. It was further alleged that on May 22, 1936, Idso attempted to enter upon the premises with his tractor and plow and that appellant damaged the same by driving them into a ravine and since has kept Idso from entering the premises by threats of force. Appellee prayed for restitution of the premises and for damages for rents and profits, alleged to be $958.10 per annum.
Appellant, by answer alleged that by virtue of his lease, he had a preference right to a five-year lease beginning on April 1, 1936, “by meeting the highest bid made therefor”; , that he did meet the highest bid, paid the first year’s rental, aftd thereby leased the property for the period claimed by Idso; and that he remained in possession of the property until August 1, 1936.
By stipulation the cause was tried to the court. The evidence disclosed that in the fall of 1936, the superintendent of the reservation gave notice for bids on the premises in question, which notice contained the following: “ * * * Leases will be let to the highest bidder, provided the bid meets with the approval of the office and the Indians consent to the terms of the bid, unless the present lessee wishes to meet the high bid * * * ” On October 10, 1935, the superintendent sent a letter to appellant enclosing a form of lease to be signed. Appellant signed the lease and sent it with the first year’s rental to the superintendent. When advised of a higher bid, appellant met the higher bid. The money was held in a special account, but since the wards did not execute the lease, the money, at appellant’s request was applied on other leases obtained by appellant. The lease sent by appellant was not ' approved by an officer in charge of the reservation.
Appellant retained physical occupancy of the land until. August 1, 1936, but thereafter one of his mess wagons was on the land and was still there at the time of the trial, at which time appellant testified, “I still claim that I am holding possession of that land right today.”
There was no request for special findings made by appellant. The court below made a general finding for appellee, and held “that the measure- of damages here is the rental value of the land in question which, according to the undisputed proof, is $493.75 plus a lease fee of $5.00.” The damages thus found were trebled pursuant to Rev.Codes of Mont. § 9901, and judgment was entered for restitution of the premises and for the sum of $1496.25. Appellant seeks review of the judgment.
Appellee contends that there is nothing to review, because no question is raised as to admissibility of evidence, and because there was no request for special findings, and of course, no exceptions. Under the new Rules of Civil Procedure the questions presented would require answer, notwithstanding a failure to except or request special findings. Rules 46, 52 (a), 28 U.S.C.A. following section 723c. We think that there is sufficient justification for treating the failure to except and to request special findings as “technical errors, defects, or exceptions which do not affect the substantial rights of the parties” within 28 U.S.C.A. § 391, and to decide the cause on the merits.
Appellant contends that he acquired a lease on the premises for the five-year term beginning April 1, 1936, because under the terms of the notice there was a lease when appellant met the high bid. We believe the contention is untenable because the leases were subject to the Act of March 3, 1921, 25 U.S.C.A. §’393, which provides that the allottee may lease the lands “subject only to the approval of the superintendent or other officer in charge of the reservation where the land is located”. There being no such approval, we think there was no lease acquired as contended by appellant.
It is further contended that the action could not be maintained by the United States, but only by Idso. Rev. Codes of Mont. § 9889 provides in part: “A tenant * * * is guilty of unlawful detainer: When he continues in possession * * * of the property, or any part thereof, after the expiration of the term for which it is let to him, without the permission of the landlord, or the successor in estate of his landlord, if any there be.” Based on this statute appellant’s argument is that "one holding over land that has been leased to a third person could not be guilty of unlawful detainer as against the landlord but only as against the successor of the landlord” and since appellant was not guilty of unlawful detainer as against the landlord, the latter has no cause of action.
We see nothing in the statute which restricts the effect of an unlawful detainer to the new tenant. The statute merely points out that there is an unlawful detainer when there is lacking the permission specified. We need not here undertake to declare which party must give the permission in order to avoid the statute, because here there was permission from neither the landlord nor the new tenant.
In this connection, appellant also contends that since Idso was entitled to the possession of the property, he is the real party in interest. It is generally held, however, that one who has never been in possession of the land may not maintain the action (26 C.J. 816, § 43), hut that it must be maintained by the landlord. 26 C. J. 834, § 74. On principle the rule is supported by reason because, as here, at the expiration of appellant’s lease, the right of possession reverted to the landlord, who had conveyed the right to Idso, but who could not obtain the required actual possession in order to give it to Idso.
Rev.Codes of Mont. § 8687 provides in part: “The detriment caused by the wrongful occupation of real property * * * is deemed to be the value of the use of the property for the time of such occupation * * Section 9901 provides in part: “ * * * the court * * * shall also assess the damages occasioned to the plaintiff by any * * * unlawful detainer * * * and find the amount of any rent * * * and the judgment shall be rendered against the defendant * * * for three times the amount of the damages thus assessed, and of the rent found due.” It is argued by appellant, that since Idso had paid the rent for the first year, the landlord could not be damaged, and there being no rent due, a money judgment was unauthorized. However, we think it cannot be said that the first year’s rent was paid, because Idso, not obtaining possession, is entitled to recover the rent he paid. 1 Tiffany on Real Property (2d Ed.) § 50. Therefore, by § 9901 judgment was authorized "for three times the amount of the damages” which are by § 8687 “the value of the use of the property for the time of” the occupation by appellant. The latter statute has been construed to mean that “the value of the use of the property” may be measured by the rental value. Leyson v. Davenport, 38 Mont. 62, 98 P. 641.
Finally, it is contended that the judgment should have been for only three times the amount which is equal to five-twelfths of $493.75, because appellant was not in possession of the property except for five months after the lease expired. We think appellant conceded, by the testimony above quoted, that he was in possession for a year.
Affirmed.
HEALY, Circuit Judge, concurs in the result.
Question: What is the specific issue in the case within the general category of "miscellaneous"?
A. miscellaneous interstate conflict
B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)
C. attorneys (disbarment; etc)
D. selective service or draft issues (which do not include 1st amendment challenges)
E. challenge to authority of magistrates, special masters, etc.
F. challenge to authority of bankruptcy judge or referees in bankruptcy
G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law
H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights)
I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act)
J. Indian law - federal regulation of Indian land and affairs
K. Indian law - state/local authority over Indian land and affairs
L. Indian law - tribal regulation of economic activities (includes tribal taxation)
M. other Indian law
N. international law
O. immigration (except civil rights claims of immigrants and aliens)
P. other
Q. not ascertained
Answer: |
songer_state | 56 | 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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RICH’S OF PLYMOUTH, INC., Respondent.
No. 77-1497.
United States Court of Appeals, First Circuit.
Argued April 4, 1978.
Decided June 6, 1978.
Lee Ann Huntington, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Elliott Moore, Deputy Associate General Counsel, and William R. Stewart, Atty., Washington, D. C., were on brief, for petitioner.
Duane R. Batista, Boston, Mass., with whom David E. Watson and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
The National Labor Relations Board (the Board) seeks enforcement of a cease and desist order issued after its finding that respondent violated section 8(a)(1) of the National Labor Relations Act (the Act) (1) by soliciting employee grievances and promising and granting benefits with intent to discourage support for a union campaign and (2) by creating an impression of surveillance among the employees. Also at issue is whether respondent shall be required to reinstate with back pay a union supporter who walked off her job in a fit of pique on a busy night. We first address those portions of the Board’s order which we enforce.
Promise and Grant of Benefits
Respondent is a chain of nine retail stores. In April, 1976, Local 222 of the Retail Clerks International Association, AFL-CIO embarked on a campaign to organize the employees of respondent’s Plymouth, Massachusetts store. A flyer distributed among the employees announced that an initial organizational meeting would be held on April 26.
The same day of the union’s first meeting, Gerald Costello, personnel and operations manager for the chain, convened the entire workforce, scheduling separate meetings for the day and night shift employees. Addressing the day employees first, Costel- ■ lo discussed the union campaign and the effect of signing authorization cards. He then asked if the employees had any problems. Two subjects were raised: health insurance and the establishment of a grievance committee. Costello agreed to investigate both proposals. He explained that if implemented, a health insurance plan would cover all stores in the Rich’s chain, not just the Plymouth branch, and would be jointly financed by management and the employees.
On May 10 Costello met with a group of 15 or 20 night shift employees. This group’s reaction to the two suggestions made by the day personnel was favorable. Costello told them that a grievance committee procedure would be established and that management would pursue the proposal for health insurance.
A short time later a grievance committee ballot box was installed in the Plymouth store. Two days later it was removed. After the May 10 meeting, no further mention was made of the health insurance proposal. Store supervisors were directed to answer any inquiries about the progress of the employees’ suggestions by stating that the company “had been advised not to go into this at this point.”
Early in May respondent instituted a pay increase of 5 cents per hour for all employees in the chain. On May 14, the union filed a petition with the Board to represent the Plymouth store workforce. An election was conducted on July 22 in which the union lost by a margin of 41 votes to 22, with 7 ballots challenged. Subsequently the union filed unfair labor practice charges and sought to have the election overturned.
We sustain the Board’s conclusion that respondent violated section 8(a)(1) of the Act by soliciting employee grievances and promising benefits during the pendency of this union campaign. One indication that the grievance sessions conducted in this case could be found to have been calculated to infringe upon the employee freedom of choice with respect to unionization, NLRB v. Exchange Parts, 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), is their timing. Ordinarily, the more imminent a representational election, the greater the presumption that management’s expression of concern for employee welfare has an impermissible motive, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 277 (1st Cir. 1975). Here an election had not yet been requested at the time the employees were convened and additional benefits were discussed, a fact seemingly in respondent’s favor, see id. However, it appears to be no mere coincidence that Costello called for the meetings, inquired of the day employees’ grievances, and promptly responded to their suggestions the very day the union had chosen for its first organizational meeting. We think it reasonable to conclude that the grievance sessions were timed to nip the union effort in the bud.
The manner of convening the workforce adds support to the Board’s finding. Neither grievance session was a regularly scheduled event, see NLRB v. South Shore Hospital, 571 F.2d 677, 681 (1st Cir. 1978). The meetings were not called by the employees, but were initiated by management, and concededly in response to the union presence at the store, see NLRB v. Gotham Industries, 406 F.2d 1306, 1311 (1st Cir. 1969). Costello asked for the employees’ proposed improvements promptly after having acknowledged that the union was attempting to organize. When contrasted to respondent’s characteristic method of dealing with employee complaints on an individual, informal basis, convocation of the entire workforce conveyed the impression that with a union campaign in progress, employee suggestions would be taken more seriously.
Some evidence, although it was specifically discredited by the administrative law judge, indicates that the proposal for a health insurance plan may at least have been considered by management prior to the union’s appearance at the Plymouth store, see NLRB v. Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978). Even if that were the case, it would not mitigate the effects of respondent’s conduct. No specific details of such a plan were communicated to the employees prior to April 26, nor did management ever unconditionally commit itself to providing health insurance, id.; NLRB v. Exchange Parts, supra, 375 U.S. at 409, 84 S.Ct. 457. In any event, there is no basis for believing that the second improvement discussed with the employees at the same time, establishment of a grievance committee, had been predetermined, see NLRB v. Arrow Elastic Corp., supra. That idea originated with the day employees at the April 26 meeting. No business justification was even offered for management’s sudden interest in it, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).
Respondent seeks support in the fact that whatever promises may have been made at the meetings were never put into effect. In what appears to have been a belated effort to avoid a probable unfair labor practice charge, respondent removed the grievance committee ballot box before an election could be held, made no further mention of the proposal for health insurance, and gave an explanation for its action which was carefully phrased to avoid reference to the union. As we have noted in previous decisions, we are not insensitive to attempts by an employer to mitigate impermissible conduct, see Sta-Hi Division, Sun Chemical Corp. v. NLRB, 560 F.2d 470, 474 (1st Cir. 1977). Once the promises had been made, however, the requisite laboratory conditions for a representational election had been destroyed, and even good faith efforts to blunt their impact could not make it otherwise, id.
Similarly, we agree with the Board that the implementation of a 5 cent per hour pay increase violated section 8(a)(1). Although it is not invariably an unfair labor practice to increase compensation while a union campaign is underway, such conduct makes out a prima facie case of intentional interference with employee organizational rights, see NLRB v. Styletek, supra, 520 F.2d at 280. The burden then shifts to the employer to justify both the fact and the timing of the increase, id.
Respondent argues that it carried that burden by introducing evidence that the decision to increase wages was made in January, 1976, before the union made its presence known, and was implemented pursuant to a consistently applied policy of granting raises in the spring and fall of each year, see D’Youville Manor v. NLRB, 526 F.2d 3, 5 (1st Cir. 1975). However, the administrative law judge and the Board discredited testimony by respondent’s president that by January, 1976, management had resolved to increase wages. We have no basis for disturbing that finding, based as it was on an assessment of credibility, see NLRB v. Garland Corp., 396 F.2d 707, 709 (1st Cir. 1968).
Similarly, the Board was unpersuaded, and we think with good reason, by the argument that the timing of the raise was in line with pre-existing company policy. Between 1972 and 1974 wages were in-creased every six months, in April and October. That pattern was interrupted in 1974 and subsequent increases, mandated by changes in federal minimum wage requirements, were instituted in May, 1974, January, 1975, and January, 1976. The next voluntary pay increase was not until May, 1976. No evidence indicates that the employees had any expectation that they would receive the 5 cent raise, much less that it would be in that month. Since respondent had only once given a raise in May, and that had been two years prior to the period in question, we, like the Board, are unconvinced that respondent had a history of showing its munificence in May. Respondent’s conceded awareness of the union presence at the time it put the increase into effect undermines its argument all the more, see NLRB v. Arrow Elastic Corp., supra, at 704; NLRB v. Gotham Industries, supra, 406 F.2d at 1310. On these facts it appears that even if it might have been decided in advance, the wage increase was “sprung on the employees in a manner calculated to influence the employees’ choice”, NLRB v. Styletek, supra, 520 F.2d at 280.
Impression of Surveillance
We are somewhat more troubled by the Board’s finding that respondent violated section 8(a)(1) by creating an impression of surveillance among its employees. Late in a working day toward the end of April, 1976, a store employee approached Aida Pereira, a union supporter, to ask for her telephone number. According to Pereira, she did not have any paper, and so wrote the number on the back of a blank union authorization card. Steven Rice, then the store manager, called Pereira aside and said, “Aida I know that you are responsible for this.” The administrative law judge concluded that although Rice’s statement was “less than explicit”, in view of the other unfair labor practices respondent had committed and the fact that a union authorization card was involved in the incident, an impression of surveillance had been created.
Part of our difficulty with this conclusion stems from the fact that this episode was short-lived and appeared to be the only one that occurred during the entire union campaign, see Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 468 (1st Cir. 1976); NLRB v. Garland Corp., supra, 396 F.2d at 709. Rice’s comment was at best vague, and contained no reference to the union, or threat of reprisals, see NLRB v. Sandy’s Stores, 398 F.2d 268 (1st Cir. 1968); NLRB v. Prince Macaroni Mfg. Co., 329 F.2d 803 (1st Cir. 1964). Even if Rice had mentioned the union, Pereira was known to management as a union supporter, see Hedstrom Co. v. NLRB, 558 F.2d 1137, 1144 (3d Cir. 1977). The Act does not prevent an employer from acknowledging an employee’s union activity, without more, see NLRB v. Mueller Brass Co., 509 F.2d 704, 709 (5th Cir. 1975). Nevertheless, “[bjecause this finding is largely grounded on the fact finder’s judgment concerning the credibility of the witness and on unrefuted testimony, we conclude that it was supported by substantial evidence and should not be disturbed”, see Stone & Webster v. NLRB, supra, 536 F.2d at 468.
Refusal to Rehire
It is at the point of reviewing the finding that a section 8(a)(3) violation occurred that we part company with the Board. Jean Schembri, the employee in question, was one of two employees who worked at a jewelry concession in the Plymouth store. Evidence indicated that on several occasions she had expressed interest in the union to respondent’s supervisory personnel.
On July 9,1976 Schembri reported for her evening shift. Customarily a busy night, that Friday promised to be especially so, since an ear piercing clinic was to take place. Schembri approached the concession manager Mary Fontaine and the supervisor Dottie McDonald to inquire about holiday pay she had claimed, after advice from the union, but not received and to renew a complaint about a reduction in the number of hours she had been scheduled to work. When Fontaine informed her she was expected to work at an ear piercing clinic to be held the following day, Schembri protested that she had not been notified of this. Fontaine pointed out that the schedule had been posted two days earlier. Displaying some anger, McDonald suggested that she and Fontaine leave. Schembri asked to speak to McDonald and returned to her station, apparently expecting McDonald to follow. When she discovered that McDonald had left the concession without talking to her, Schembri stormed over to the service desk, announced to assistant store manager Croteau that she was quitting, and told him to find a replacement for her. After giving a substitute employee brought over from the service desk some instruction on preparation for the ear piercing clinic, Schembri left.
Soon after she returned home, Schembri informed Fontaine by telephone that she had quit. Several hours later she again called Fontaine, apologized, and asked for her job back. Fontaine responded that although Schembri had been a good employee, the matter was up to management. She agreed to relay Schembri’s desire to be rehired to McDonald, but noted that the latter was upset with Schembri because of her comments about the union. Several telephone calls with various supervisory personnel and the concession owner followed, but Schembri was not reinstated. Two days later a replacement was hired.
Both parties treat this case precisely the same as one in which there has been an allegation of an unlawful discharge and seem to have assumed that the employer had an obligation to come forward with an explanation for its failure to reinstate Schembri. That premise does not strike us as so obvious. Schembri was not discharged, impermissibly or otherwise, see, e. g. Stone & Webster v. NLRB, supra, 536 F.2d 461. Nor was it ever argued that, by walking off her job, she joined in concerted activity protected by the Act, see NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Bob’s Casing Crews, Inc. v. NLRB, 429 F.2d 261, after remand, 458 F.2d 1301 (5th Cir. 1972); Colson Corp. v. NLRB, 347 F.2d 128 (8th Cir. 1965). Rather, she unilaterally and precipitously quit her job for a reason unconnected to her union sympathies, see LTV Electrosystems, Inc. v. NLRB, 408 F.2d 1122, 1127 (4th Cir. 1969); NLRB v. J. W. Mays, Inc., 356 F.2d 693, 695 (2d Cir. 1966).
Under such circumstances Schembri’s rights seem to us to approximate more closely those of a job applicant than those of a discharged employee. Just as union membership or sympathy has not been regarded as an insurance policy for job placement, it cannot assure that an employee who quits and then changes her mind will be reinstated, see NLRB v. Plymouth Cordage Co., 381 F.2d 710, 711 n. 2 (5th Cir. 1967). An employer who refuses to reinstate an employee who voluntarily terminated is arguably in a stronger position to defend its action than one who has discharged the employee. By the same token a correspondingly heavier burden might rest on the Board to prove a section 8(a)(3) violation, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394-95 (6th Cir. 1967).
Nevertheless, we do not rest our decision on any such difference in defenses and burdens. Even assuming that in both circumstances the employee has the same right to reinstatement judged against the same standard, we conclude that the Board erred in finding that respondent’s refusal to rehire Schembri violated section 8(a)(3).
It was conceded here that management was aware of Schembri’s interest in the union movement at the time it was confronted with her request for reinstatement, compare Stone & Webster v. NLRB, supra, 536 F.2d at 464, with NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st Cir. 1966). There is also evidence that management demonstrated some hostility toward the union effort. However, management alleged, and offered supporting evidence, that it had refused to rehire Schembri not on that basis, but because she had left them in the lurch at an especially bad time. Respondent having offered a legitimate business justification for its conduct, the burden shifted to the Board to establish by substantial evidence “an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one”, NLRB v. Billen Shoe Co., 397 F.2d 801, 803 (1st Cir. 1968). In our repeated efforts to impress this standard upon the Board we have variously redefined it to mean that the decision would not have been made “but for” the employee’s union activity, Coletti’s Furniture, Inc. v. NLRB, 550 F.2d 1292, 1293 (1st Cir. 1977), that union animus was the “dominant” reason, NLRB v. Lowell Sun Publishing Co., 320 F.2d 835, 842 (1st Cir. 1963), or the “controlling” motive, NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1315 (1st Cir. 1971). By whatever phraseology, we have attempted to make it clear that “the mere existence of anti-union animus is not enough” to make out a section 8(a)(3) violation, NLRB v. Billen Shoe, supra, 397 F.2d at 803.
Here the administrative law judge, upheld by the Board, acknowledged that respondent had asserted a business reason for its conduct, but dismissed it as “improbable” and concluded that “but for” the union activity, Schembri would have been rehired. While the magic words may have been invoked, that is not enough, see Coletti’s Furniture, supra, 550 F.2d at 1293. Our standard must also be reasonably applied to the facts at issue, id. We are unable to convince ourselves that this was done.
This case is unlike Champion Papers Inc. v. NLRB, supra, 393 F.2d at 394, for example, where the asserted reason for the employer’s action, “dissatisfaction” and “attitude”, appeared unsubstantiated or inconsequential. Here respondent’s refusal to rehire Schembri had a sound basis in business judgment. The only employee at the jewelry counter, Schembri had walked out in a fit of temper at the outset of one of respondent’s busiest retail nights, requiring the supervisors to draft an untrained last minute substitute from one of the other departments. An employer’s unwillingness to rehire an employee who demonstrated such irresponsibility and lack of consideration is quite understandable. Moreover, respondent presented evidence to the administrative law judge that it had acted in accordance with a pre-existing policy of refusing to reinstate employees who quit without notice or a valid excuse.
The Board summarily dismissed the proffered reason as “improbable”, see NLRB v. Fibers Int'l Corp., supra, 439 F.2d at 1315, and assorted that respondent’s rein-
statement policy was the exact opposite of what respondent asserted it to be, i. e., that in the past respondent had always rehired employees who terminated voluntarily, and had failed to do so only in this case. The Board’s assertion is belied by the record. Of the two examples the Board relied upon to reach its conclusion, one concerns a rehired employee who had given notice prior to resigning. The other relates to a young boy who was discharged for stealing. He was indeed rehired, but only after his parents managed to persuade respondent that the boy had learned his lesson. In all instances of voluntary termination without notice or explanation cited in the record, the employees in question were not reinstated and it was noted in their personnel files that they were ineligible for rehire. See NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 514 (6th Cir. 1963).
In sum, Schembri genuinely quit without notice on her own volition at a pressing time over a matter wholly unrelated to any concerted activity or bargaining. The employer’s professed reason for refusing to rehire her not only is readily understandable as a matter of common sense but was in conformity with a written policy which was, contrary to the Board’s analysis, faithfully followed. While the employer knew that Schembri was a union supporter, there is nothing to indicate that she was other than rank-and-file. All that is left is that management representatives had demonstrated some hostility toward union efforts in conversations with Schembri and had committed some illegal actions in other contexts. On this record we find this to be insufficient evidence of dominant antiunion motive to overcome the legitimate business justification for respondent’s conduct, see Stone & Webster v. NLRB, supra, 526 F.2d at 465; NLRB v. Puerto Rico Telephone Co., 357 F.2d 919, 920 (1st Cir. 1966); NLRB v. Bird Machine Co., 161 F.2d 589, 591 (1st Cir. 1947).
In Coletti’s Furniture, Inc. v. NLRB, supra, 550 F.2d at 1293, we noted that after such repeated and unambiguous interpretation “there can be little reason for us to rescue the Board hereafter if it does not both articulate and apply our rule”. Our rescue mission stops here. So much of the Board’s order as directs that Schembri be reinstated with back pay is set aside. That portion of the order as concerns the violation of section 8(a)(1) is enforced.
So ordered.
. It is unclear from the administrative law judge’s report whether the wage increase was implemented before or after the union filed its petition with the Board. The precise date is unimportant, for it is conceded that at the time the increase went into effect respondent was aware of the union activity in its Plymouth store, see NLRB v. Gotham Industries, Inc., 406 F.2d 1306, 1310 (1st Cir. 1969).
. The administrative law judge found that the benefits discussed at the meetings were never actually conferred, There is no claim on appeal that respondent committed a separate unfair labor practice by withholding promised benefits, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).
. Whether well timed raises create a rebuttable presumption of a violation, as the Board found, or a prima facie case of misconduct, is immaterial to the disposition of this case. In either event the company was called upon to present substantial evidence in opposition to the charge, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 280 (1st Cir. 1975). It failed to do so.
. This can be inferred from the fact that by Pereira’s own testimony, at some point after management’s meetings with the day and night shift employees, but before this incident, personnel manager Costello asked for her reaction to the proposal for implementing health insurance. Pereira responded that she “wanted union representation”.
. Although independently owned, the concession was operated under the supervision of Rich’s employees.
. Schembri recounted to the administrative law judge a series of conversations with the concession manager which, if believed, would have indicated some anti-union animus on the part of the supervisory personnel. Favorably im- , pressed by the manager’s demeanor, and unconvinced by Schembri’s testimony, which he termed “hostile and robot-like”, the administrative law judge disbelieved Schembri’s version of these discussions, except where corroborated by the manager.
. The briefs cite pretext dismissal cases.
. Inclusion of the phrase “but for” constitutes . the only reference in the administrative law judge’s memorandum to any standard. No decision of this court was cited, see NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1312 (1st Cir. 1971), and there was no elaboration on the “but for” language.
. That Schembri had been considered a competent employee and it may arguably have been in respondent’s interest to bend policy in order to rehire her does not refute the legitimacy of respondent’s refusal to do so. The business justification was within respondent’s realm to make, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394 (6th Cir. 1967). It is neither the Board’s function, nor indeed ours, to second-guess business decisions. "The Act was not intended to guarantee that business decisions be sound, only that they not be the product of antiunion motivation”, Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 467 (1st Cir. 1976) (emphasis in original).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_origin | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES ex rel. TENNESSEE VALLEY AUTHORITY v. POWELSON et al.
No. 4679.
Circuit Court of Appeals, Fourth Circuit.
Oct. 8, 1943.
William C. Fitts, Jr., Gen. Counsel, Tennessee Valley Authority, of Knoxville, Tenn. (Charles J. McCarthy, Asst. Gen., Counsel, Tennessee Valley Authority, and Robert H. Marquis, both of Knoxville, Tenn., on the brief), for appellant and cross-appellee.
G. Lyle Jones and George H. Wright, both of Asheville, N. C., for appellee and cross-appellant.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
The decision of this Court, rendered on-March 10, 1941, was to the effect that the award of damages by the District Court for property condemned by the United States should be modified by eliminating certain items from the award of damages and that, as so modified, the judgment appealed from should be affirmed. United States v. Powelson, 4 Cir., 118 F.2d 79. This decision was reversed by the Supreme Court because that Court was of the view that in arriving at the award of damages certain elements had been included in the valuation of the property which should not have been considered. United States v. Powelson, U.S., 63 S.Ct. 1047, 1057, 87 L.Ed. 1390. We have given careful consideration to what should be the future procedure in the case, and are of opinion that it should be remanded to the District Court for further proceedings in accordance with the principles laid down by the Supreme Court, and with leave to the parties to produce additional testimony, if they so desire.
In reversing the decision of this Court, the Supreme Court held that the respondent’s privilege to use the power of eminent domain might not be considered in determining whether there was a reasonable probability of the lands in question being combined with other tracts into a power project in the reasonably near future, and that respondent had not established the basis for proof of the “water power value” which was asserted, except upon the assumption that it possessed the power of eminent domain. The limited nature of the decision was shown by the opening sentence of the next to the last paragraph of the opinion wherein the Court said: “We hold only that profits, attributable to the enterprise which respondent hoped to-launch, are inadmissible as evidence of the value of the lands which were taken.”
The Court went on to say: “Respondent is, of course, entitled to the market value of the property fairly determined. And that value should be found in accordance with the established rules (United States v. Miller, supra [317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. -]) — uninfluenced, so far as. practicable, by the circumstance that he whose lands are condemned has the power of eminent domain.”
The Miller case [317 U.S. 369, 63 S.Ct. 280, 87 L.Ed.-] cited in the excerpt from the opinion goes fully into the principles, to be applied in determining valuation and states that “the market value of the property is to be fixed with due consideration of all its available uses”, citing Boom Co. v. Patterson, 98 U.S. 403, 407, 408, 25 L.Ed. 206. The rule is thus, stated in the case last cited:
“In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it, and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated.
“So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.”
Nothing said by the Supreme Court changes in any way the rule as to damages laid down in Olson v. United States, 292 U.S. 246, 256, 54 S.Ct. 704, 708, 78 L.Ed. 1236, from which we quoted in our opinion as follows: “The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. Mississippi & R. River Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206; Clark’s Ferry Bridge Co. v. Public Service Comm., 291 U.S. 227, 54 S.Ct. 427, 78 L.Ed. 767; 2 Lewis, Eminent Domain (3d Ed.) § 707, p. 1233; 1 Nichols, Eminent Domain (2d Ed.) § 220, p. 671. The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. Nor does the fact that it may be or is being acquired by eminent domain negative consideration of availability for use in the public service. [City of] New York v. Sage, 239 U.S. 57, 61, 36 S.Ct. 25, 60 L.Ed. 143. It is common knowledge that public service corporations and others having that power frequently are actual or potential competitors not only for tracts held in single ownership but also for rights of way, locations, sites, and other areas requiring the union of numerous parcels held by different owners. And, to the extent that probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account. [Mississippi & R. River] Boom Co. v. Patterson, ubi supra.”
The difficulty presented by the record in this case is that the evidence of value produced by the owner was based almost entirely on profits of the enterprise which he hoped to launch, whereas the evidence on the other side consisted almost entirely of the opinions of those who valued the land merely as wild mountain land without reference to any value it might have because of its availability as a power site. Opinions of persons knowing nothing of the value of land for water power purposes are not a fair criterion of its value, where there is evidence that it is available for such purposes. Persons in the immediate neighborhood may not be in position to testify as to such value, but there may be others who are qualified to testify. Certainly one who has embarked upon the enterprise of a great water power development, has purchased and brought together thousands of acres of land for the purpose and spent hundreds of thousands of dollars in the enterprise, is entitled to have his holdings valued on some other basis than that of numerous small separated tracts of wild mountain land, if it be found, irrespective of the possession of the power of eminent domain by the landowner, that “there is a reasonable probability of the lands in question being combined with other tracts into a power project in the reasonably near future”. Market value is nothing but a hypothetical concept based upon what, in the opinion of those who know, a willing buyer would have to pay a willing seller of property in order to purchase it. The question here is, not what wild mountain land was selling for in the community, but what would the portion of land owned by Powelson and available for this water power development have been reasonably worth on the market when sold by one who was willing but not compelled to sell and bought by one who was willing but not compelled to buy. In arriving at this valuation, it is proper that those who make it take into consideration the fact that a large body of land has been brought together under one ownership and any special value that it may have acquired because of this fact.
If the parties desire to adduce additional evidence on this question in the light of the Supreme Court’s decision, they should be allowed to do so. If they do not so desire, the valuation should at all events be made in the first instance by the court below, because of the opportunity which the judges and commissioners of that court have had to view the land and hear the witnesses as to valuation testify. The judgment below will accordingly be reversed and the case will be remanded to the District Court for further proceedings not inconsistent herewith.
Reversed and remanded.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
songer_circuit | I | 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.
Ruben BENN, Plaintiff-Appellant, v. Frank A. EYMAN, Warden, Defendant-Appellee.
No. 25546.
United States Court of Appeals, Ninth Circuit.
Jan. 19, 1971.
McCafferty & Loftus, Phoenix, Ariz., for plaintiff-appellant.
Gary K. Nelson, Ariz. Atty. Gen., Carl Wagg, Asst. Atty. Gen., Phoenix, Ariz., for defendant-appellee.
Before CHAMBERS, BARNES and TRASK, Circuit Judges.
PER CURIAM:
Petitioner, a state prisoner, appeals from the order of the district court denying his petition for writ of habeas corpus. We affirm the order of the district court.
Petitioner was charged with three felonies, one count of attempted rape and two counts of burglary. On the scheduled day of trial on the attempted rape charge, which was to be tried first, the attorney prosecuting that charge was ill. The trial was continued, and one of the burglary counts was set to be tried the next day.
The next day, petitioner’s appointed counsel moved for a continuance because he did not have a copy of the transcript of the preliminary hearing for the burglary count to be tried that day. The state trial court denied the motion because defense counsel had, on the previous day, stated that he had the transcript for the burglary charge.
Petitioner then withdrew his plea of not guilty to the burglary count on trial and entered a plea of guilty. The charge of attempted rape and the other burglary count were dismissed.
Petitioner’s principal contention on appeal is that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) requires that his writ be granted. Boykin, where there was no allegation that the guilty plea was involuntary, held that it was constitutional error for a state trial judge to accept the guilty plea “without an affirmative showing that it was intelligent and voluntary.” 395 U.S. at 242, 89 S.Ct. at 1711. Petitioner argues that his conviction must be reversed because the state trial judge made no interrogation to determine whether his guilty plea was voluntary and intelligent before accepting the plea; and also because there was no showing that he changed his plea knowingly, voluntarily and intelligently.
Boykin was decided in 1969. Petitioner’s guilty plea was entered in 1964. This court has held that Boykin is not retroactive. Moss v. Craven, 427 F.2d 139 (9th Cir. 1970). Other circuits are in accord. Meller v. Missouri, 431 F.2d 120 (8th Cir., 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1969). Therefore, the absence of interrogation of petitioner at the time his plea was entered does not alone require reversal.
The district court at the conclusion of the evidentiary hearing held that petitioner’s plea was voluntary. The district court found that the guilty plea was the result of plea bargaining. This court has held that a guilty plea is not involuntary merely because it results' from plea bargaining. Jones v. United States, 423 F.2d 252 (9th Cir. 1970); United States v. Thomas, 415 F.2d 1216 (9th Cir. 1969); Gilmore v. California, 364 F.2d 916 (9th Cir. 1966); Cortez v. United States, 337 F.2d 699 (9th Cir. 1964).
Petitioner contends that his guilty plea was not the result of plea bargaining. He argues that there was nothing in the record to indicate that a deal was entered into or, if there was a deal, that petitioner was aware of it and agreed to it.
The finding of the district court is supported by the record. Defense counsel testified that there was a deal to drop the other two charges if petitioner would plead guilty to burglary. He also testified that he informed petitioner of the deal and suggested, with full knowledge of the facts, that petitioner accept it. Petitioner testified that defense counsel informed him of the deal and advised him to take it. Petitioner knew that if he pleaded not guilty he would have a trial. The lawyer who represented petitioner at the time of the plea bargaining and the guilty plea was also the lawyer who represented petitioner at the preliminary hearing on that same charge and was personally present at the preliminary hearing so that petitioner and his lawyer were both aware of what took place, even in the absence of a reporter’s transcript.
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_source | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. Uless Grant MANSON et al., Defendants-Appellants.
No. 73-1055.
United States Court of Appeals, Seventh Circuit.
Argued June 13, 1973.
Decided April 9, 1974.
Robert G. Mann, Indianapolis, Ind., for defendants-appellants.
Stanley B. Miller, U. S. Atty., William F. Thompson, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
Before FAIRCHILD, Circuit Judge, SPRECHER, Circuit Judge, and GRANT, Senior District Judge.
Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.
GRANT, Senior District Judge.
The appellants and several other defendants were indicted as joint participants in an Indianapolis gambling operation. Count I charged that the appellants and seven other defendants engaged in a conspiracy to conduct an illegal gambling business in violation of 18 U.S.C. § 371. Count II charged that the appellants and six of the other defendants engaged in the same illegal gambling business in violation of 18 U.S.C. § 1955. Prior to trial the indictment was dismissed as to the one defendant who was charged only Count I, and as to another defendant who was charged in both Counts I and II, thus leaving seven named defendants in each Count. Appellants Blakey and Manson were tried and found guilty on both counts. In their appeal the appellants challenge: (1) whether the income tax return of an employee of the gambling business. should have been admitted in evidence; (2) the constitutionality of 18 U.S.C. § 1955; (3) whether this was an illegal gambling business “conducted by five or .more persons” within the meaning of 18 U.S.C. § 1955; and (4) whether the two counts properly charged two separate offenses.
I
Appellants assert that the trial court violated their Fifth Amendment privilege against self-incrimination when it received into evidence the 1971 Federal Income Tax Return of Irvin Kelly who was alleged to be an employee in the illegal gambling business in question. The return had been obtained from Mr. Kelly by subpoena and was introduced into evidence through the testimony of the accountant who had prepared the return from a W-2 Form and information which had been supplied by appellant Manson
It is evident that the appellants had no standing to object to the introduction of Mr. Kelly’s tax return for the reason that the privilege against self-incrimination is personal and cannot be exercised by anyone other than the person to whom the material in question belongs. Howard v. United States, 397 F.2d 72, 74 (9th Cir. 1968), and Silbert v. United States, 289 F.Supp. 318, 320-321, 325 (D.Md.1968). Nor does the fact that Appellant Manson supplied the information contained on the return to their accountant, in order to comply with tax requirements in the operation of a business, give appellants any standing to object to the introduction of the return. The privilege against self-incrimination is not available to those who turn material over to a retained accountant for the purpose of disclosure in the preparation of tax returns. Couch v. United States, 409 U.S. 322, 337, 93 S. Ct. 611, 34 L.Ed.2d 548 (1973) (Justice Brennan concurring).
II
Appellants argue that 18 U.S.C. § 1955 is unconstitutional for the reason that it prohibits gambling businesses, such as the one which they were allegedly involved in, which do not affect interstate commerce. Admittedly, there was no evidence introduced at trial which would indicate that the appellants’ gambling activities had any effect whatsoever on interstate commerce. However, accepting the government’s interpretation of the facts, the gambling business which the appellants were involved in was large enough to come within the prohibition of 18 U.S.C. § 1955. That statute provides, in pertinent part, as follows:
Ҥ 1955. Prohibition of illegal gambling businesses
“(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
“(b) As used in this section—
“(1) ‘illegal gambling business’ means a gambling business which—
“(i) is a violation of the law of a State or political subdivision in which it is conducted;
“(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
“(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” 84 Stat. 922, 937.
This statute was based on a broad finding by Congress that the gambling enterprises described in the statute have sufficient impact on the interstate economy to warrant prohibition by federal criminal legislation. See 84 Stat. 936. This circuit has held that such finding is sufficient to constitutionally support the statute even when it is applied to individual members of the class whose own activities may not have a demonstrable impact on interstate commerce. United States v. Hunter, 478 F.2d 1019, 1021 (7th Cir. 1973), cert, denied, 414 U.S. 857, 94 S.Ct. 162, 38 L.Ed.2d 107. This position has been previously adopted in each circuit which had been presented with the issue. United States v. Harris, 460 F.2d 1041, 1043-1048 (5th Cir. 1972), cert, denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130; United States v. Palmer, 465 F.2d 697 (6th Cir. 1972), cert, denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126; United States v. Becker, 461 F.2d 230, 233-234 (2nd Cir. 1972); United States v. Riehl, 460 F.2d 454, 458 (3rd Cir. 1972); Schneider v. United States, 459 F.2d 540 (8th Cir. 1972).
Ill
The appellants have also contended that the evidence failed to establish that there were five or more persons who conducted, financed, managed, supervised, directed or owned all or part of the business in question as required to constitute a violation of 18 U.S.C. § 1955. The parties agree that from the evidence, only the appellants themselves could have been said to have financed, managed, supervised, directed or owned all or part of the business. There were at least three other persons, however, who acted as ticket sellers or runners in the business. Appellants argue that these other persons could not be counted as part of the “five or more persons who conduct, finance, manage, supervise, direct, or own all or part” of the illegal gambling business as required by 18 U. S.C. § 1955. However, this court has re- ' cently held that such “street level employees” as ticket sellers and runners are to be counted as persons who “conduct” the illegal gambling business as provided in the statute. Hunter, supra, 478 F.2d at 1021. Accordingly, we conclude that the evidence did establish the existence of the required number of persons to constitute a violation of 18 U.S. C. § 1955.
IV
Finally, the appellants contend that convictions on both Counts cannot stand because they do not charge separate offenses. Clearly, two offenses can only be separately prosecuted and punished if each requires proof of an element which the other does not. In this action, Count I charged that the appellants and other defendants conspired to engage in an illegal gambling business, in violation of 18 U.S.C. § 371. Count II charged that the appellants and other defendants engaged in an illegal gambling business, in violation of 18 U.S.C. § 1955. Seven defendants were tried and convicted on each count.
Some circuits have found that where more than five persons were charged with both conspiracy to violate 18 U.S.C. § 1955 and a substantive violation of § 1955, the offenses were separate and both offenses could be prosecuted. However, in a case where there were thirteen persons charged with both conspiracy to violate § 1955 and substantive violation of the statute, this circuit has recently rejected that argument and pointed out:
. an argument which merely emphasizes the number of the persons charged in the indictment does not identify an element of each offense which adequately differentiates the other. . . . But even though five or more persons are named in the indictment, a charge of conspiracy to violate § 1955 may not be maintained if it comprehends nothing more than the agreement which those persons necessarily performd by the commission of the substantive offense itself. Hunter, supra, 478 F.2d at 1026.
As in Hunter, we find here “no ingredient in the conspiracy [charged in Count I] which is not present in the completed crime [charged in Count II]”.
The judgments of conviction against appellants in Count I are reversed. In all other respects the judgments against appellants are affirmed.
. The return contained statements that Mr. Kelly’s principal business activity was “Commission sales”, the name of the business was “Uless Manson 35 886P” and the business address was 437 W. North St., Indianapolis, Ind.”
. United States v. Becker, supra, 461 F.2d at 234.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer: |
songer_appnatpr | 1 | 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.
Phyllis K. SHEPHERD and Douglas T. Shepherd, Plaintiffs-Appellees, v. John P. PUZANKAS, Defendant-Appellant.
No. 16336.
United States Court of Appeals Sixth Circuit.
Feb. 1, 1966.
R. Hunter Cagle, Knoxville, Tenn. (Arthur D. Byrne, Thearon Chandler, Knoxville, Tenn., on the brief; Poore, Cox, Baker & MeAuley, Knoxville, Tenn., of counsel), for appellant.
Creed A. Daniel, Rutledge, Tenn. (W. I. Daniel, Rutledge, Tenn., on the brief; Daniel & Daniel, Rutledge, Tenn., of counsel), for appellees.
Before EDWARDS, Circuit Judge, CECIL, Senior Circuit Judge, and KENT, District Judge.
CECIL, Senior Circuit Judge.
This appeal arises out of an automobile accident which occurred on U. S. Highway 11W, in the state of Tennessee, on April 28, 1963. The plaintiff-appellee, Phyllis K. Shepherd, was driving her automobile west on the highway at the time and place of the accident. John P. Puzankas, defendant-appellant, traveling east on the highway, lost control of his automobile and collided with the Shepherd automobile in its lane of traffic.
Phyllis Shepherd and her husband, Douglas T. Shepherd, were residents of Texas. John P. Puzankas, hereinafter called the defendant, was a resident of New York. The Shepherds brought an action against the defendant in the United States District Court for the Eastern District of Tennessee, Northern Division. Jurisdiction was based on diversity of citizenship. (Section 1332(a), Title 28, U.S.C.) The case was tried to a jury and resulted in a verdict of $25,-000 for Phyllis Shepherd, and a verdict of $2000 for her husband. The defendant appealed.
It is alleged in the complaint that “The defendant operated his aforesaid described motor vehicle at a high, reckless, dangerous and negligent rate of speed and without the exercise of due care or caution or to circumspection and without keeping a proper lookout ahead, without having said motor vehicle under proper or adequate control, and said defendant did in the reckless, negligent and wanton manner aforede-scribed, operate said motor vehicle in such manner as to lose control of same after passing another vehicle proceeding in the same direction, cross the center line of said highway and to strike the automobile operated by the plaintiff, Phyllis K. Shepherd, headon in her right and proper lane of travel, striking the same with great force and violence.”
It is further alleged that the defendant operated his motor vehicle “in open, willful and flagrant violation of certain statutes of the State of Tennessee.”
There was evidence in the record that the highway was wet and slick and that the defendant was traveling at a high rate of speed, that he passed three ears and that he cut back in his lane of traffic just ahead of a car immediately ahead of the Shepherd automobile. It was at this point that he lost control of his car and crossed into the lane of the oncoming Shepherd vehicle. The trial judge instructed the jury, “(I)f you find that this defendant was guilty of willful, wanton, gross negligence you have the right to assess what is known in the law as punitive damages.” He then correctly explained gross negligence and punitive damages.
Objection is made on behalf of the defendant that the court erred in instructing the jury that it had the right to assess punitive damages. In support of this objection, it is claimed that the proof did not sustain such a charge and that the plaintiffs did not contend in their complaint, the pretrial order or upon the trial that the defendant was guilty of gross negligence or that they were entitled to punitive damages.
The language of the complaint is broad enough to cover a charge of gross negligence and there is ample evidence in the record to support such a charge. There is nothing in the pretrial order which would prohibit an instruction on gross negligence and punitive damages. Under the law of Tennessee where gross negligence is pleaded and there is evidence to support it, the question of punitive damages is properly submitted to the jury. In American Lead Pencil Co. v. Davis, 108 Tenn. 251, 254, at page 255, 66 S.W. 1129, at page 1130, the court said:
“Gross negligence, then, is undoubtedly one ground for the allowance of punitive or exemplary damages ; * * * ”
See also Memphis Street Railway v. Shaw, 110 Tenn. 467, 478, 75 S.W. 713; Choctaw, Oklahoma and Gulf Railroad Co. v. Hill, 110 Tenn. 396, 406, 75 S.W. 963; Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 646, 383 S.W.2d 1; Caccamisi v. Thurmond, 39 Tenn.App. 245, 270, 282 S.W.2d 633.
In Caccamisi v. Thurmond, heretofore cited, at p. 272, 282 S.W.2d at p. 646, the court quoted from Baker v. Bates, 4 Tenn.Civ.App. 175, as follows:
“It is not necessary that these damages (punitive damages) be claimed eo nomine. It is sufficient, if the facts alleged justify their recovery.”
Assuming that the trial judge was in error in instructing the jury on punitive damages, it was a harmless error and did not affect the substantial rights of the defendant. Rule 61 Federal Rules of Civil Procedure. American Lead Pencil Co. v. Davis, supra, 108 Tenn. at 257, 66 S.W. 1129; Butler v. Barrett & Jordan, C.C., 130 F. 944, 949; Philadelphia & W. C. Traction Co. v. Kordiyak, 171 F. 315, 318, C.A. 3; Sucher Packing Co. v. Manufacturers Casualty Ins. Co., 245 F.2d 513, 522, C.A. 6, cert. den. 355 U.S. 956, 78 S.Ct. 541, 2 L.Ed.2d 531; Gillis v. Keystone Mut. Casualty Co., 172 F.2d 826, 830, 11 A.L. R.2d 455, C.A. 6, cert. den. 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499; E. I. Dupont De Nemours & Co. v. Wright, 146 F.2d 765, 768, C.A. 6, cert. den. 324 U.S. 873, 65 S.Ct. 1017, 89 L.Ed. 1426; DeAddio v. Darling & Co., D.C., 112 F.Supp. 166, 167, affirmed 204 F.2d 272, C.A. 6.
In returning the verdict, the foreman of the jury specifically stated that the jury did not allow anything by way of punitive damages. We agree with the trial judge that since the jury disallowed punitive damages the issue has become moot.
Another assignment of error is that the amount of damages awarded to Phyllis Shepherd by the jury is excessive and that the trial judge abused his discretion in not granting a new trial. The trial judge heard the evidence and he had an opportunity to observe the plaintiff Phyllis Shepherd on the witness stand. In denying the motion for new trial he enumerated her injuries which were supported by the record and were such as to justify the verdict of the jury.
In Montgomery Ward & Co. v. Morris, 273 F.2d 452, 453, C.A. 6, we said:
“The power of this Court to review and set aside an order of the District Court overruling a motion for a new trial based on alleged excessive damages, is very limited. (Citations omitted) It is not sufficient that the verdict is considerably larger than we think it should have been. In the absence of a showing of passion and prejudice on the part of the jury, the trial court’s action in overruling a motion for a new trial where a factual question is involved, will not be reviewed by this Court unless it involves an abuse of discretion.”
See also Morton Butler Timber Co. v. United States, 91 F.2d 884, 891, C.A. 6; Spero-Nelson v. Brown, 175 F.2d 86, 89, C.A. 6; Werthan Bag Corp. v. Agnew, 202 F.2d 119, 122-123, C.A. 6; Cross v. Thompson, 298 F.2d 186, 187, C.A. 6; Fairmount Glass Works v. Fork Coal Co., 287 U.S. 474, 481-483, 53 S.Ct. 252, 77 L.Ed. 439; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 247, 60 S.Ct. 811, 84 L.Ed. 1129; Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520.
We find no abuse of discretion here on the part of the trial judge, in denying the motion for a new trial on the ground of excessive damages.
The judgment of the District Court is affirmed.,
. Section 59-816, Tenn.Code Ann., Passing vehicles proceeding in opposite directions.
Section 59-823, Tenn.Code Ann., Driving on roadways laned for traffic.
Section 59-858, Tenn.Code Ann., (a) Any person who drives any vehicle in. willful or wanton disregard for the safety of persons or property is guilty of reckless driving.
(b) Penalty provisions.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_sentence | E | 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".
Henry C. HICKS, Appellant, v. CITY OF LOS ANGELES, a Corporation; Board of Civil Service Commissioners, etc., et al., Appellees.
No. 15161.
United States Court of Appeals Ninth Circuit.
Jan. 28, 1957.
Rehearing Denied March 6, 1957.
Cryer & Jones, George E. Cryer, Los Angeles, Cal., for appellant.
Roger Arnebergh, City Atty., George Williams Adams and Moses A. Berman, Deputy City Attys., Los Angeles, Cal., for appellees.
Before POPE, CHAMBERS and BARNES, Circuit Judges.
CHAMBERS, Circuit Judge.
Henry C. Hicks, plaintiff-appellant, is a building operating engineer who in 1951 was discharged from his position with the City of Los Angeles. He held his position under the city’s classified civil service which had the usual safeguards against arbitrary dismissals.
On the night of October 12-13, 1951, plaintiff was on duty as an engineer at the Lincoln Heights jail in Los Angeles. “Boiler trouble” developed. (We do not here reach the question of whether there was a little trouble or much trouble or whose fault it was.) The Los Angeles Board of Public Works, under whose jurisdiction Hicks and the boiler came, on November 30, 1951, discharged him for “Unsatisfactory performance of duties” on the aforementioned night of October 12-13.
Hicks administratively denied the charges, all of which concerned the boiler. The Los Angeles Civil Service Commission accorded Hicks a hearing before a hearing examiner on January 22, 1952, and February 7, 1952. The hearing examiner made a report which was acted upon on April 15, 1952, by the Civil Service Commission. The commission upheld the discharge. There is some variance between the hearing examiner’s report to the commission and its final-conclusion as to what he found. This variance does not appear to be particularly great, but Hicks says it was done fraudulently and was a “frame-up.”
Hicks appears in April, 1952, to have accepted the findings and order of discharge. But in April, 1954, he says he discovered the “fraud.” He then took steps (administratively) designed to secure his reinstatement. Failing before the Civil Service Commission, he filed on June 17, 1954, an action in equity in the Superior Court of California (Los Angeles County) by which he asserted the proceedings for his discharge were null and void as based on gross extrinsic fraud. The complaint was dismissed and an appeal followed. This appeal was decided against him on May 24, 1955. Hicks v. City of Los Angeles, 133 Cal.App.2d 214, 283 P.2d 1046.
Then on January 23, 1956, Hicks filed this action in the United States District Court for the Southern District of California, naming the City of Los Angeles, the Board of Civil Service Commissioners and its members, and the Board of Public Works and its members as defendants. It was designated a “Bill in Equity to Annul a Final Order of the Civil Service Commission * * * on the ground *, * * of Extrinsic Fraud and [because the order] deprives complainant of his * * * right * * * without due process of law.”
The only new thing or item we find in the complaint in United States district court that was not contained in the case in the state court, Hicks v. City of Los Angeles, supra, is the following allegation concerning his “mistreatment” by the California courts:
“That when this complainant learned that no court of the State of California would accord him a hearing upon his above-mentioned case pending in the courts of said state, charging that the, order of defendant Civil Service Commission removing him from his position, was based upon gross extrinsic fraud; that said refusal of said California Courts to consider said case was based upon delay and alleged ‘laches’ in commencing his said action, and that said courts and each of them, from the lowest to the highest, had refused even to consider even the provision of Section 338, sub. 4, of the Code of Civil Procedure of California, providing that an action for relief on the ground of fraud must be deemed to have arisen on the date of the discovery by the aggrieved party of the facts constituting such fraud, and giving to such party three years, after such discovery in which to commence an action, complainant was plunged into the depths of despair, and suffered a recurrence of the mental collapse which had engulfed him when defendant Civil Service Commission removed him from his position without evidence of wrong doing, upon the charge of ‘unsatisfactory performance of duty’; that while in such state of collapse complainant disappeared from his place of abode and his counsel and friends were unable to find or communicate with him for weeks thereafter, that when finally he had recovered sufficiently to return and counsel were able to contact him and to explain to him that his cause was not finally lost; that the Federal Constitution and the Federal Courts still stood between him and the taking of his property without Due Process of Law, and that the Statute of Limitations still accorded to him the right ‘to commence’ an action for the protection of his Constitutional Rights, this complainant regained much of his mental poise and promptly authorized his counsel to prepare and file this action.”
The defendants pleaded “no jurisdiction” and “no cause of action.” The district judge dismissed the case on the ground of no jurisdiction.
At the outset it would appear that the limits of 28 U.S.C.A. § 1331 are applicable. If so, the whole complaint teeters on whether the sum of $3,000 in damages is alleged. We have concluded that it barely, though poorly, does so allege.
There are a number of older cases holding that the federal courts do not have any jurisdiction to look into the discharge of the employees of a state or its subdivisions. See e. g. Ex Parte Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402; Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187. And, of course, there will be some cases where sovereign immunity is involved.
But this case seems to be the first case since Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, where a discharged state employee has asserted that he held a protected status which he was deprived of by fraud in the state administrative process.
We think under Bell v. Hood, supra, we must hold that the allegations were good enough to assert jurisdiction. See Lowe v. Manhattan Beach City School District, 9 Cir., 222 F.2d 258, and Agnew v. City of Compton, 9 Cir., 239 F.2d 226. Also, 8 Stanford Law Review 123. A judgment rendered merely erroneously by the district court in favor of Hicks ought to be valid against collateral attack.
The employee is entitled to protection against arbitrary power or action. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. By that we mean due process.
But the federal courts are not the sole repository of the 14th Amendment. The courts of 48 states, not the smallest of which is California, operate under it. The charges against the California courts’ determination of Hicks’ complaint are no more than that the California courts ruled in error.
Here, while we hold bare jurisdiction did exist, there is the gravest doubt whether plaintiff stated a federal cause of action. And he has attempted to secure not a choice of jurisdiction but the exercise of successive jurisdiction. See American Automobile Ins. Co. v. Benedetto, 3 Cir., 58 F.2d 918, certiorari denied 287 U.S. 621, 53 S.Ct. 20, 77 L.Ed. 539. It might even be said that he seeks to “appeal” a decision on the indistinguishable claim pursued clear through California courts. The defendants in their motion to dismiss and memorandum combined therewith do not assert res judicata by name, but certainly in setting forth haec verba the decision of the California District Court of Appeal as an appendix to their motion to dismiss they assert the elements of res judicata. As a matter of fact, the attempt here to retry this case in the federal system amounts to legal frivolity, albeit that there is deadly earnestness on the part of Hicks and his counsel.
The case is remanded with instructions to vacate the order of dismissal of the action on the ground of lack of jurisdiction and to grant a summary judgment in defendant’s favor on the ground of res judicata.
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_genresp1 | C | 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.
FOX et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6417.
United iStates Court of Appeals Fourth Circuit.
Argued June 20, 1952.
Decided July 31, 1952.
George Craven, Philadelphia, Pa., for petitioners.
Maryhelen Wigle, Sp. Asst, to Atty. Gen. (Ellis N. Slack, Acting Asst. Atty. Gen. and L. W. Post, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before PARKER, Chief Judge, SO-PER, Circuit Judge, and PAUL, District Judge.
PAUL, District Judge.
The petitioners in this case, Walter S. Fox and Eleanor C. Fox, seek review of a decision of the Tax Court of the United States which determined deficiencies in income taxes against them for the years 1944, 1945 and 1946 in the following amounts:
Walter S. Fox Eleanor C. Fox
1944 $1,381.86 $1,521.61
1945 4,555.80 4,584.79
1946 3,683.49 3,573.42
$9,621.15 $9,679.82
The petitioners filed separate Federal income tax returns for the years in question and the deficiencies were separately adjudicated, but since the matters in controversy are the same in both cases they have been consolidated for hearing in this court.
The petitioners, who are husband and wife, are the joint owners and operators of a farm of 700 acres in Loudon County, Virginia, on which they have been engaged in the business of raising cattle and sheep, together with feed for this livestock. The farm was operated and income tax returns were made on a cash basis and the livestock was not inventoried. The primary business of the farm was the raising of Aberdeen Angus cattle and the controversy here involves the proceeds from the sale of such cattle.
Petitioners began their cattle breeding business in 1939 with the purpose of building up a herd of pure-bred Aberdeen Angus of a distinctive type, and with the expectation, so they state, that a substantial capital gain would be realized from the eventual sale of such a herd. Beginning in 1939 with 10 heifers and a bull which they had purchased the petitioners gradually built up their herd until in the years 1942 through 1946 they owned the following numbers of what they term “mature cattle”, these constituting the producing herd and made up of bulls that had been used as herd sires and cows that had produced calves.
Year Cows Bulls
1942 57 2
1943 46 2
1944 34 2
1945 52 2
1946 80 4
There is no evidence to show how many of the animals in this producing group had been purchased by petitioners or how many had been raised by them.
While the Aberdeen Angus is a beef animal the petitioners were primarily engaged in raising cattle for sale to other breeders and not for slaughter purposes. The course of their operations appears to have been similar to those of other persons engaged in the same sort of activities. In the breeding of cattle all calves produced are not of uniform quality and petitioners followed the practice of registering only those animals which, in their opinion, gave promise of being high-grade breeding stock. Those animals considered of inferior quality and without value for breeding purposes were not registered and were sold off for slaughter purposes, either as calves or steers. The proceeds of the sale of these culls or unregistered animals are not in dispute here.
Calves which were considered as showing the qualifications for potential breeding stock were registered with the Aberdeen Angus Association — usually before they were six months old — and were held for such varying periods of time as were determined by the opportunity for an advantageous sale. At the end of the years 1942 through 1946 the petitioners owned the following numbers of registered cattle.
Year Total No. of Animals
1942 142
1943 144
1944 146
1945 167
1946 203
The above figures included not only the producing herd, but also younger animals of varying ages, some of which were not yet of breeding age and others of which had been bred but had not yet produced calves.
The petitioners appear to have conducted their operations in accordance with the regulations of the American Aberdeen Angus Association under which it was permissible to 'breed heifers at 15 months of age and bulls at 13 months. And, except for those sold at an earlier age, most of the animals raised by petitioners were bred within a comparatively short time after reaching these respective ages. The period of gestation in cows is approximately nine months and it is not until the lapse of this further time that it can be definitely determined that the animals will reproduce. However, because a calf could not be registered unless born from a cow which was at least twenty-four months old, the petitioners so planned it that none of the females in their possession dropped a calf before reaching the age of twenty-four months.
During the year 1944 the petitioners sold 43 head of their registered stock; in 1945 they sold 39 head; and in 1946 they sold 36 head. When sold these animals varied in age from five or six months to three years or more. The bulk of them were between the ages of 10 and 24 months. The differing ages at which the animals were sold was due to the differing preferences or desires of purchasers. Some persons were willing to buy calves to be raised for future breeding purposes. Others who desired to breed the animals immediately purchased animals which had attained breeding age and which had either been bred or were ready to breed. Still others purchased older animals which, having actually produced calves, were considered proven breeders.
It is the proceeds from the sale of the 118 head of registered stock sold in the years 1944, 1945 and 1946 which is in issue. The question is whether the gain realized on the sale of these cattle is taxable as a capital gain, as petitioners contend; or as. ordinary income, as the Tax Court held.
The pertinent statute is Sect: 117 of the Internal Revenue Code, 26 U.S.C.A. § 117, dealing with “capital gains and losses”. Sect. 117(a) (1) in defining “capital assets” excludes therefrom property held by the taxpayers primarily for sale in the ordinary course of his trade or business. Sect. 117(j) provides for the taxing as long-term capital gains of the net gains on sales of “property used in the trade or business” and in defining the term “property used in the trade or business” specifically provides that, among other things, it does not include property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the end of the taxable year, or property held primarily for sale in the ordinary course of the taxpayer’s trade or business.
In 1951, Act of Oct. 20, 1951, Sect. 117(j) (1) was amended to indicate more clearly the inclusion of certain kinds of property within the definition of “property used in the trade or business”. Among other things the amendment provided that “Such term also includes livestock, regardless of age, held by the taxpayer for draft, breeding, or dairy purposes, and held by him for 12 months or more from the date of acquisition.” This amendment was made applicable to taxable years beginning after December 31, 1941, except that the extension of the holding period from 6 to 12 months vi as applicable only to years beginning after December 31, 1950.
It is the contention of petitioners that whenever, and as soon as, any animal raised by them was registered it thereby became a part of their breeding herd and that any sum realized thereafter from its sale was to be taxed as a capital gain. This argument is apparently based on the theory that some of the animals raised might ultimately be found worthy of retention as sires or dams in petitioners permanent herd and, therefore, all of them were to be treated as part of a herd held for breeding purposes.
The Tax Court denied this contention, with the comment that the most that could be said was that the animals when registered became potential members of a breeding herd. It pointed out that the mere act of registration did not establish an animal as a member of the breeding herd, for the reason that registration was equally necessary in order to make a sale to purchasers seeking registered stock for their own herds. The court further noted that the fact that some of the animals reached breeding age and were bred while still in the taxpayers’ possession did not establish them as members of the breeding herd; that the custom of petitioners in selling heifers with calf and bulls as guaranteed breeders necessitated that they be bred by petitioners before sale. The conclusion of the Tax Court is embodied in the following excerpts from its opinion:
“We are left with the problem of determining which of the animals were eventually included in the breeding herd. The problem is rendered difficult by petitioners’ failure to submit a detailed history of the animals on the basis of which we could make an accurate determination. The only criterion relied on by the petitioners is the fact of registration.”
“After a careful consideration of the entire record, we have concluded that the heifers raised, registered, and sold by petitioners before they dropped a calf should not be regarded as a part of the breeding herd, and those animals that dropped a calf while still owned by petitioners should be regarded as a part of that herd. Since we are unable to determine from the evidence the exact number of calves in each category, an approximation is necessary.”
“Inasmuch as the earliest age at which any of the heifers dropped a calf was 24 months and the latest was approximately 27 or 28 months, we adopt as average 26 months and for purposes of disposition of this case treat all females raised, registered, and sold by petitioners when 26 months old or over as having been a part of the breeding herd. The gain on their sale is taxable at capital gains rates. * * * The remainder were not part of the breeding herd but were instead held primarily for sale to customers. The gain on their sale is taxable as ordinary income.”
* * * * * *
“It also appears that until a bull reached an age of from 32 to 37 months, it could not-be satisfactorily determined that it possessed the necessary breeding qualities for such a herd as petitioners were raising. From the record made before us, we have determined that of the registered bulls raised and sold by petitioners, only those 34 months or older should be classified as part of the breeding herd and those under that age should be classified as property held by petitioners primarily for sale to customers.”
We are of opinion that these conclusions of the Tax Court should not be disturbed. The opinion of that court was handed down prior- to the enactment of the 1951 amendment to Sect. 117(j) (1) heretofore referred to but it does not appear that the amendment affects in any way either the reasoning or the conclusions reached by the court.
The taxpayers do not agree with this and now urge that the amendment of 1951 renders the holding of the tax court untenable and makes clear that the gains here in issue are taxable gains. In this argument the petitioners stress the fact that the amendment refers to livestock, regardless of age; and from this they argue that a breeding herd may be made up of animals none of which have as yet been bred or which may even be too young for breeding. This argument ignores the real point of the matter. The important thing is not the age of the animals but the purpose for which they are held.
The weakness of petitioners’ contention is disclosed by their own testimony, as well as by certain obvious facts. In the normal course of events the calves born in any herd may be expected to be evenly divided as between males and females. If these petitioners had held all of their calves to become part of their breeding herd then by the laws of arithmetical progression the herd would soon have increased beyond the capacity of the farm and every cow would have had her individual bull. The testimony is, as a matter of fact, that four was the greatest number of herd bulls that petitioners ever had at one time, and these to serve 80 cows. As Mr. Fox, one of the petitioners, testified: “Obviously we cannot keep all those animals which are male. It is just in the hope that we will get a successor bull that we will keep them all. We have to sell the excess.”
Again Mr. Fox testified that on the average not more than one out of every one hundred bull calves raised by petitioners possessed breeding qualities sufficiently high as to meet the standards of petitioners’ herd, and that in ten years they had raised only about 15 bulls of that quality. However, he gives no testimony as to how many of even this limited number were ever retained as herd sires, or, indeed, whether any of them were. The evidence does show, however, that during the three years for which taxes are in question the petitioners sold 44 male animals to other breeders.
Further testimony on behalf of petitioners was to the effect that after a bull had been bred and a calf produced as a result thereof, the calf must be 10 or 12 months old before it can be determined by observing the qualities of the calf, whether the sire possesses proper breeding qualities. As stated by Mr. Fox: “It takes a minimum of three years to know whether or not you have a good breeding bull”. It was further testified that not until they had reached the age of at least 24 months were females allowed to give birth to calves.
Yet the evidence shows that of the 44 male animals sold by petitioners in the years 1944, 1945 and 1946 only one of them was as old as three years and all but two of them were less than two years old. The proportion of young animals among the heifers sold was somewhat less, but even there it appears that 75 per cent of the females were less than 24 months of age when sold. In other words, all but one of the bulls and three-fourths of the heifers were sold before they reached the age where it could be determined whether they were satisfactory breeding stock. This fact strongly denies the present contention of the petitioners that all the animals were held for breeding purposes and that any sales were merely incidental to the main business of building up the breeding herd.
It is true, of course, that a person may maintain a herd of cattle which represents “property used in the trade or business”. It may be a dairy herd used in the business of producing milk or it may be a herd used in the business of producing calves. And when any members of these producing groups are sold there is a sale of a capital asset, and any animals replacing those sold and becoming part of the producing group become “property used in the trade or business”. See Albright v. U. S., 8 Cir., 173 F.2d 339. But the milk and the calves are not property used in trade or business; they are the produce of such property. And the fact that the taxpayer may hold the calves for varying or indefinite periods does not make them “property used in the trade or business” unless they are actually held for inclusion in the producing herd.
This case turns on the facts and the facts are not complicated. The petitioners are engaged in raising high-grade Aberdeen Angus cattle and maintain a producing unit, the produce of which in the shape of offspring, both male and female, they customarily sell to other persons. Like all other persons engaged in a similar business petitioners are, no doubt, alert to maintain and to improve the high quality of their producing unit; and to this end it may be that at times they select from among the calves raised some animals which they consider of such high quality as to justify their being placed in the producing unit. But, as the Tax Court pointed out, the petitioners offer no evidence to show the number of such chosen animals or, indeed, that there were any such. In any event it is clear that the number of such animals was limited. Not only were the bulk of the animals raised by petitioners sold, but the practice of selling most of them before their breeding qualities were even tested shows that they were raised for the purpose of being sold, and not for inclusion in the producing herd.
The Tax Court allowed the taxpayers to treat as a part of the breeding herd all animals held by the taxpayers until the age when their ability to produce calves was proven; even though the animals might have been sold the very next day and although petitioners had never intended to include them in their producing herd. In so doing we think that the court gave these petitioners even more than was required by the facts shown.
We have examined the case of Albright v. United States, 8 Cir., 173 F.2d 339, 341, which petitioners cite to sustain their contentions, but we find nothing in the opinion that is helpful-to petitioners. The opinion in this case recites these facts.
“In his dairy operations the taxpayer maintains a herd of 36 dairy cattle, of which an average of 18 to 20 head are producers of milk which the taxpayer sells to local creameries. Calves which are not needed for the maintenance of the dairy herd at the desired number are sold on the market. Dairy cows which by reason of age, injury, or disease are unfit for maintenance in the dairy herd, or which because of decreased milk production are economically less desirable than available young stock, are sold and replaced by young stock raised by the farmer.”
The court held that when cows which had been used in the dairy herd but were no longer fit for such use were sold and replaced by other stock, the sale was of property used in the trade or business and the proceeds of the sale were taxable as capital gains. It is to be noted that in the Albright case the taxpayer did not claim as a capital asset any animals except those which had actually been part of his1 producing herd. This is a far different situation than that in the instant case, where there was no showing that any of the animals sold were part of the producing unit and where most of them were sold at an age before they could possibly have become so.
The decisions of the Tax Court are
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_interven | B | 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 whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
The BELL TELEPHONE COMPANY OF PENNSYLVANIA, et al., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, MCI Telecommunications Corporation, American Telephone and Telegraph Company, Telesphere Network, Inc., U.S. Telephone, Inc., Intervenors.
No. 84-1259.
United States Court of Appeals, District of Columbia Circuit.
Argued April 17, 1985.
Decided May 14, 1985.
Linda L. Oliver, Counsel, F.C.C., Washington, D.C., with whom Jack D. Smith, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingle and Carl D. Lawson, Counsel, F.C.C., Washington, D.C., were on brief, for respondents.
William J. Byrnes, Washington, D.C., with whom Michael H. Bader, Kenneth A. Cox, Thomas R. Gibbon and Theodore D. Kramer, Washington, D.C., were on brief, for intervenor MCI Telecommunications Corp.
Judith A. Maynes, New York City, Robert B. Stecher and Daniel Stark, Washington, D.C., were on brief, for intervenor American Tel. and Tel. Co.
Leo I. George, Washington, D.C., entered an appearance, for intervenors Telesphere Network, Inc. and U.S. Telephone, Inc.
William R. Weissman, Washington, D.C., with whom Charles A. Zielinski, A. Richard Metzger, Karen S. Byrne and Robert A. Levetown, .Washington, D.C., were on brief, for petitioner.
Before MIKYA, GINSBURG and BORK, Circuit Judges.
Opinion PER CURIAM.
PER CURIAM.
This petition for review concerns the fifth and final year of the interim agreement governing rates charged to “other common carriers” (OCCs) for exchange network facilities for interstate access (EN-FIA agreement). For background on EN-FIA and prior proceedings in this court regarding the agreement, see MCI Telecommunications Corp. v. FCC, 712 F.2d 517 (D.C.Cir.1983).
The ENFIA agreement provided that American Telephone and Telegraph Company (AT & T), on behalf of the Bell System Operating Companies (BSOCs), would file annually with the Federal Communications Commission (Commission or FCC) a tariff containing the rates for the following billing year, subject to 15 days’ advance notice before the tariff became effective. For the fourth year of the ENFIA agreement scheduled to begin on May 2,1982, the FCC suspended the tariff filed by AT & T, imposed an interim billing and collection rate, and stated that the interim rate would be subject to adjustment in either direction after Commission determination of the rate properly set under the ENFIA contract.
On September 29, 1982, the Commission prescribed the methodology for calculating rates under ENFIA, and ordered the OCCs to remit to the BSOCs the difference between the lower interim rate and the prescribed rate. Exchange Network Facilities for Interstate Access (ENFIA), 91 F.C.C.2d 1079, 1093-94 (1982). Using the prescribed methodology AT & T filed a new tariff which was in effect for the balance of the fourth year. Several parties petitioned the Commission for reconsideration of the September 29 order; AT & T requested expedition of the Commission’s reconsideration.
The fifth year ENFIA rates were scheduled to begin April 16,1983. On March 28, 1983, while the petitions for reconsideration of the FCC’s September 29, 1982, order remained pending, AT & T filed fifth year rates based on the methodology prescribed by the September 29, 1982, order. AT & T stated in the March 28 tariff filing that the submission was made subject to later recalculation based on the Commission’s eventual — then still awaited — decision in the reconsideration proceeding. The Common Carrier Bureau permitted the fifth year rates to go into effect as scheduled. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 15, 1983).
On April 5, 1983, the Commission at last issued its Reconsideration Order, and in it altered the prescribed methodology for calculation of the ENFIA rates. The revised methodology increased the fourth year rates, and the Commission approved as lawful retroactive application of the readjusted fourth year charges. Exchange Network Facilities for Interstate Access, 93 F.C.C.2d 739, 763 (1983), aff'd mem. sub nom. GTE Sprint Communications Corp. v. FCC, 733 F.2d 966 (1984). AT & T filed tariff revisions to its fourth year rates, applicable retroactively to the beginning of the fourth year, and the tariff became effective the day after it was filed.
On April 28, 1983, AT & T filed amended fifth year rates based on the methodology the Commission established as correct on April 5 in the Reconsideration Order. The tariff provided that the charges would be retroactive to the beginning of the fifth year, April 16, 1983. The Common Carrier Bureau observed that the proposed rate increase appeared to conform to the EN-FIA methodology approved in the Reconsideration Order. Nevertheless, the Bureau rejected the tariff as unlawful. According to the Bureau, the retroactive (then by less than one month) increase was prohibited by section 203(c) of the Communications Act, 47 U.S.C. § 203(c) (1982) (“[N]o carrier shall ... charge ... different compensation ... than the charges specified in the schedule then in effect.”). Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (May 16, 1983). The Commission affirmed the Bureau’s ruling. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 18, 1984).
The BSOCs petition this court to review the Commission’s rejection of a retroactive increase in fifth year rates. We reverse.
It is not controverted that the calculations AT & T made following the April 5, 1983, Reconsideration Order are accurate and in full conformity with the methodology ultimately prescribed by the Commission. The Bureau’s rejection of the April 28, 1983, AT & T tariff filing thus rested solely on the perception that the tariff’s retroactive component (dating the increase back to April 16 rather than forward from May 13) would violate section 203(c). However, the Commission itself had explained crisply, in its April 5 Reconsideration Order discussion of retroactive adjustment of fourth year rates, why such an adjustment is compatible with section 203(c):
Because our investigation was aimed at finding the proper rate under the agreement, we see little difference between this case and City of Piqua v. FERC, 610 F.2d 950 (D.C.Cir.1979), where the enforcement of an agreed upon prior effective date for rate increases was not considered retroactive ratemaking. Furthermore, under circumstances where it is the terms of an agreement that are at issue and both sides have participated in the proceeding and have been given notice as to the actual effective date of the rate, and where any of the parties may be responsible for error, fairness dictates that a retroactive adjustment be applicable to either side.
Exchange Network Facilities for Interstate Access, 93 F.C.C.2d at 763 (1983); see also Hall v. FERC, 691 F.2d 1184, 1191-92 (5th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983).
We find this reasoning correct and fully applicable to the fifth year retroactive rate adjustment at issue here. The Commission attempts to distinguish the fourth year retroactive rate change from the fifth year tariff by noting that the fourth year adjustment was made initially to a Commission-imposed interim rate while the April 28, 1983, filing proposed a retroactive alteration in a previously filed tariff. This distinction is not altogether accurate and, in any event, has scant relevance to the policy or purposes of section 203(c) or the ENFIA agreement. Indeed, as petitioners point out, the FCC’s distinction would operate in a senseless manner. It would allow re-troactivity only to those who file conspicuously inappropriate rates: if the filed rates are sufficiently questionable to warrant suspension, the carrier can eventually obtain the full, fair rate retroactively; if the filing is sufficiently close to stand pending investigation, no retroactive adjustments will be made in the carrier’s favor.
In sum, had the Commission corrected its September 29,1982, order in February 1983 rather than in April, AT & T would have been positioned to file a conforming tariff on March 28, 1983, the fifth year ENFIA rates would have fallen smoothly into place on April 16, and the interim agreement would have run its course without generating this parting federal court case. The Commission appropriately adjusted for the flaws in its September 29,1982, order when it ruled on retroactively effective fourth year rates. It should have followed suit in ruling on fifth year rates. Its failure to do so was capricious.
Because (1) the tariff filed by AT & T on April 28, 1983, does not violate section 203(c), sensibly read; and (2) the Commission does not question the filing in any other respect, we discern no nonarbitrary reason to reject the tariff.
For the reasons stated, we set aside as unlawful the order to which the petition is addressed and remand this matter to the Commission with directions to accord full retroactivity to the fifth year tariff revisions as presented in AT & T’s April 28, 1983, tariff filing.
It is so ordered.
. AT & T subsequently filed the same rates under protest with a prospective effective date. Those rates became effective on June 10, 1983. Thus, the sole matter at issue is whether the higher fifth year rates should have been applicable between April 16 and June 10, 1983.
. We note, particularly, that the April 5, 1983, Reconsideration Order’s fourth year retroactive increase did in fact alter a tariff — the tariff that was prescribed by the September 29, 1982, order and applied to the balance of the fourth year.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer: |
songer_fedlaw | D | 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.
BELL’S ESTATE v. COMMISSIONER OF INTERNAL REVENUE. BELL v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 12484, 12485.
Circuit Court of Appeals, Eighth Circuit.
Aug. 4, 1943.
Albert L. Hopkins, of Chicago, 111. (Anderson A. Owen, Harry D. Orr, Jr., and Samuel H. Horne, all of Chicago, 111., on the brief), for petitioners.
L. W. Post, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for respondent.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
The question for decision is whether, under the Revenue Act of 1936, the consideration received by the life beneficiary of a trust for the transfer of the life interest to the remainderman was ordinary income or was capital.
The facts are agreed to and are as stated in the opinion of the Board of Tax Appeals (now the Tax Court of the United States), 46 B.T.A. 484. It is unnecessary to restate them in detail.
Frederic Somers Bell (now deceased) and Frances Laird Bell, husband and wife, of Winona, Minnesota, on April 28, 1932, each created a trust. The corpus of each trust consisted of 550 shares of the common stock of the Thorncroft Company. The trustees of the Frederic S. Bell trust were Laird Bell, George R. Little, and Willard L. Hillyer. The trustees of the Frances L. Bell trust were Laird Bell, George R. Little, and Frederic S. Bell. Laird Bell is the son of the grantors of the trusts. The trust agreement executed by Frederic S. Bell provided: “The Trustees shall pay to Frances Laird Bell, wife of the Grantor, during her lifetime, the entire net income of the Trust Estate. Upon her death, the Trustees shall pay, deliver, and convey the Trust Estate to Laird Bell, son of the Grantor.”
The trust agreement executed by Frances L. Bell provided: “The Trustees shall pay to Frederic Somers Bell, husband of the Grantor, during his lifetime, the entire net income of the Trust Estate. Upon his death, the Trustees shall pay, deliver, and convey the Trust Estate to Laird Bell, son of the Grantor.” The shares of stock constituting the corpus of each trust were transferred to the trustees. On February 1, 1936, Frederic S. Bell assigned to Laird Bell “all his [Frederic S. Bell’s] right, title and interest in, to and under the trust property held by George R. Little, Frederic Somers Bell and Laird Bell, as Trustees under trust agreement between Frances L. Bell and said Trustees, dated April 28, 1932, in consideration of the receipt of $104,349.26 [cash and securities], paid as hereinafter stated, the receipt whereof is hereby acknowledged.” On the same day, Frances L. Bell assigned to Laird Bell “all her right, title and interest, in, to and under the trust property held by Laird Bell, George R. Little and Willard L. Hillyer, as Trustees under trust agreement between Frederic S. Bell and said Trustees, dated April 28, 1932, in consideration of the receipt of $93,060.87 [cash and securities] (being 16.57144% of the agreed value of the trust property), paid as hereinafter stated, the receipt whereof is hereby acknowledged.” The consideration delivered by Laird Bell to each of the life beneficiaries represented the value, at the time of the assignments, of their respective life interests, apparently computed upon the basis of a 4% yield on the agreed value of the trust corpus for the life expectancy of each of the life beneficiaries. Laird Bell, having then acquired absolute title to the corpus of each of the trusts, received the trust assets, and the trusts were terminated. In his income tax return for each subsequent year, Laird Bell included the income from the former trust assets.
Frederic S. Bell and Frances L. Bell, in the belief that the consideration which they had received from Laird Bell for the life interests conveyed to him represented the proceeds of a sale of capital assets, made their respective income tax returns for the year 1936 upon that basis, the return of each of them showing a small capital gain resulting from the sale. The Commissioner of Internal Revenue ruled that the entire consideration received by the life beneficiaries was income under § 22(a) of the Revenue Act of 1936, 49 Stat. 1648. The Board of Tax Appeals affirmed the Commissioner, and the decision of the Board is now before this Court for review.
The Commissioner contends that the consideration received by the life beneficiaries for their respective life interests was in reality an advance payment of future income of the trusts during their life expectancies, and was taxable as ordinary income, even if the son, who acquired the interests, is required to include in his returns all income received by him from the former trust assets. This contention is based mainly upon the opinion of the Supreme Court in Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168, in which it was held that the amount received by a lessor from a lessee as consideration for the cancellation of a lease was, in effect, a substitute for the future rents reserved in the lease, and was therefore income and not a return of capital. However, there was no transfer of any interest in the lease or of any property involved in that case. The court said (page 32 of 313 U.S., page 759 of 61 S.Ct, 85 L.Ed. 1168): “* * * The cancellation of the lease involved nothing more than relinquishment of the right to future rental payments in return for a present substitute payment and possession of the leased premises.”
If the parents of Laird Bell, instead of creating these trusts in 1932, had transferred the stock in the Thorncroft Company to him in consideration of his agreement to pay to each of them annually a certain sum for life, and if, in 1936, he had purchased from them releases of his obligations to make further annual payments, the consideration received by them in 1936 would unquestionably have been income, under the ruling in the Hort case. But that is not the situation here.
If the case of Blair v. Commissioner, 300 U.S. S, 57 S.Ct. 330, 81 L.Ed. 465, is still the law, the decision of the Board will, in our opinion, have to be reversed. Blair was the life beneficiary of a testamentary trust. He assigned to his children portions of the net trust income which he was entitled to receive. The Commissioner ruled that, notwithstanding the assignments, the entire income of the trust continued to be taxable to Blair. The question presented to the Board of Tax Appeals, on petition to review, was “whether the petitioner, by the assignments in question, assigned future income or a present interest in property.” Blair v. Commissioner, 31 B.T.A. 1192, 1204. The Board ruled that he had assigned a present interest in property, and was not liable for taxes on income accruing to the assignees under the assignments. The Board said (at page 1205 of 31 B.T. A.): “ * * * The instant proceedings, in so far as this phase of our question is concerned, are quite similar to Marshall Field [v. Commissioner], supra [15 B.T.A. 718], followed by the Board in Edward T. Blair [v. Commissioner], supra, [18 B.T.A. 69], and affirmed by the United States Circuit Court of Appeals for the Second Circuit in. Commissioner v. Field, supra, [42 F.2d 820]. The following cases, involving circumstances more or less similar, also sustain our conclusion herein in this respect. Eugene Siegel, Executor [v. Commissioner], 20 B.T.A. 563; petition to review dismissed by the United States Circuit Court of Appeals for the Sixth Circuit on October 6, 1931; Copland v. Commissioner, [7 Cir.], 41 F.2d 501; Rosenwald v. Commissioner, [7 Cir.], 33 F.2d 423; certiorari denied, 280 U.S. 599, [50 S.Ct. 69, 74 L.Ed. 644]; Shellabarger v. Commissioner, [7 Cir.], 38 F.2d 566; Nelson v. Ferguson, [3 Cir.], 56 F.2d 121; certiorari denied, 286 U.S. 565, [52 S.Ct. 646, 76 L. Ed. 1297]; and Hall v. Burnet, [60 App.D. C. 332], 54 F.2d 443, [83 A.L.R. 86]; certiorari denied, 285 U.S. 552, [52 S.Ct. 408, 76 L.Ed. 942].”
The Circuit Court of Appeals for the Seventh Circuit, upon review, reversed the Board’s decision. Commissioner v. Blair, 83 F.2d 655. That court, after an analysis of the relevant authorities, stated its conclusion as follows (at page 662 of 83 F.2d) :
“The question is not one of the validity of the assignments but for the purpose of determining income tax liability it is one involving the date when the income became transferable. This question turns upon whether the assignor had such an interest in the corpus of the trust as to permit of its transfer or whether the assignor’s interest was separate from the property and limited to the income which accrued from year to year.
“The latter seems to be the situation. The testator made an income provision for his son. It was in the trustees’ hands beyond the reach of the son’s creditors. The son could not create obligations enforceable against it. Upon the son’s death the said income ceased. It passed to either his children or to the heirs of the testator or in part to the widow of the son, depending upon survivorship, etc. The income passed to them not by act of the son, but by the testamentary trust provision of the testator. The son’s interest was therefore not in any way attached to the corpus of the estate that produced the income. The income was not even subject to his disposition until he received it. The attempted assignment to his children was in legal effect merely a direction to the trustees to pay to his children, out of the income due to him, various specified amounts each year. It does not militate against the conclusion that the income was his, and was due to him. While he could authorize the trustees to deliver to another what was due to him, it was not deliverable until it was his to dispose of.”
The Supreme Court, on certiorari, in a unanimous opinion (Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465), reversed the decision of the Circuit Court of Appeals, and affirmed that of the Board. The Supreme Court said (at pages 13, 14, of 300 U.S., at pages 333, 334, of 57 S.Ct., 81 L.Ed. 465) :
“The will creating the trust entitled the petitioner during his life to the net income of the property held in trust. He thus became the owner of an equitable interest in the corpus of the property. Brown v. Fletcher, 235 U.S. 589, 598, 599,35 S.Ct. 154, 157, 59 L.Ed. 374; Irwin v. Gavit, 268 U.S. 161, 167, 168, 45 S.Ct. 475, 476, 69 L.Ed. 897; Senior v. Braden, 295 U. S. 422, 432, 433, 55 S.Ct. 800, 79 L.Ed. 1520, 100 A.L.R. 794; Merchants’ Loan & Trust Co. v. Patterson, 308 111. 519, 530, 139 N.E. 912. By virtue of that interest he was entitled to enforce the trust, to have a breach of trust enjoined and to obtain redress in case of breach. The interest was present property alienable like any other, in the absence of a valid restraint upon alienation. Commissioner v. Field, 2 Cir., 42 F.2d 820, 822; Shanley v. Bowers, 2 Cir., 81 F.2d 13, 15. The beneficiary may thus transfer a part of his interest as well as the whole. See Restatement of the Law of Trusts, §§ 130, 132 et seq. The assignment of the beneficial interest is not the assignment of a chose in action but of the ‘right, title, and estate in and to property.’ Brown v. Fletcher, supra; Senior v. Braden, supra. See Bogert, Trusts and Trustees, vol. 1, § 183, pp. 516, 517; 17 Columbia Law Review, 269, 273, 289, 290.
“We conclude that the assignments were valid, that the assignees thereby became the owners of the specified beneficial interests in the income, and that as to these interests they and not the petitioner were taxable for the tax years in question.”
There can be no question that in Blair v. Commissioner, supra, the Supreme Court ruled that assignments of life interests such as those here involved are transfers of interests in the trust assets, and are not merely assignments of income. The Commissioner, however, in seeking for a distinction between that case and these cases, says in his brief: “It is true that in Blair v. Commissioner, supra, it was held that the assignment of the right to receive trust income during the life of the assignor carried with it such a property interest in the fund that the transferee and not the transferor was taxable upon future income. But there the assignments were by way of gift and there was no question such as here presented with respect to the taxability of the consideration. As pointed out by the Board of Tax Appeals and as hereinabove indicated, that question is answerable by reference to the Hort case, Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L. Ed. 1168, where the Court expressly held that simply because the lease was ‘property’ the amount received for its cancellation was not a return of capital. Similarly, simply because the life interests here may have been property within the scope of the Blair case, it does not follow that the amounts received by the transferors did not constitute ordinary income to them. It is submitted that those amounts were ordinary income in the same sense as prepaid rentals, interest or salaries are ordinary income.”
The Supreme Court, in the cases of Helvering v. Horst, 311 U.S. 112, 118, 119, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655, and Harrison v. Schaffner, 312 U.S. 579, 582, 61 S.Ct. 759, 85 L.Ed. 1055, has referred to its decision in Blair v. Commissioner, supra. In Helvering v. Horst, the question was whether a gift, during the donor’s taxable year, of interest coupons which were detached from bonds and delivered to the donee shortly before their maturity and which were later in the year paid to the donee, was income taxable to the donor. In speaking of Blair v. Commissioner, supra, the court said in the Horst case (at pp. 118, 119 of 311 U.S., at page 148 of 61 S.Ct, 85 L.Ed. 75, 131 A.L.R. 655): “ * * * In the circumstances of that case the right to income from the trust property was thought to be so identified with the equitable ownership of the property from which alone the beneficiary derived his right to receive the income and his power to command disposition of it that a gift of the income by the beneficiary became effective only as a gift of his ownership of the property producing it. Since the gift was deemed to be a gift of the property the income from it was held to be the income of the owner of the property, who was the donee, not the donor, a refinement which was unnecessary if respondent’s contention here is right, but one clearly inapplicable to gifts of interest or wages.”
A majority of the court ruled that the donor had assigned income and not an interest in income-producing property. Three Justices (including Chief Justice Hughes, the author of the opinion in Blair v. Commissioner, supra) dissented, stating that “The general principles approved in Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465, are applicable and controlling” (at p. 122 of 311 U.S. at page 149 of 61 S.Ct, 85 L.Ed. 75, 131 A.L.R. 655). The same Justices also dissented, for the same reasons, in Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81, which held that, notwithstanding an assignment by a general agent of a life insurance company of his right to future renewal commissions, the commissions remained his income for purposes of taxation. The Circuit Court of Appeals of the Second Circuit had held in the Eubank case (Eubank v. Commissioner, 110 F.2d 737) that the assignment of the right to the future renewal commissions by the assignor was an assignment of a property right and not of income, relying in part upon Blair v. Commissioner, supra.
In Harrison v. Schaffner, 312 U.S. 579 61 S.Ct. 759, 85 L.Ed. 1055, a life beneficiary of a trust had assigned to her children specified amounts in dollars from her trust income for the year following the assignment. The trustees paid these amounts to the assignees. The Supreme Court, in its opinion holding that the amounts, for tax purposes, remained the income of the assignor, said with respect to Blair v. Commissioner, supra (at p. 582 of 312 U.S., at page 761 of 61 S.Ct., 85 L. Ed. 1055): “ * * * It is true, as respondent argues, that where the beneficiary of a trust had assigned a share of the income to another for life without retaining any form of control over the interest assigned, this Court construed the assignment as a transfer in praesenti to the donee, of a life interest in the corpus of the trust property and held in consequence that the income thereafter paid to the donee was taxable to him and not the donor. Blair v. Commissioner, supra. But we think it quite another matter to say that the beneficiary of a trust who makes a single gift of a sum of money payable out of the income of the trust does not realize income when the gift is effectuated by payment, or that he escapes the tax by attempting to clothe the transaction in the guise of a transfer of trust property rather than the transfer of income where that is its obvious purpose and effect.”
The Supreme Court has not, expressly or by implication, overruled or modified its decision in Blair v. Commissioner, supra. The assignments in Helvering v. Horst, supra, Helvering v. Eubank, supra, and Harrison v. Schaffner, supra, are distinguishable from the assignments involved in Blair v. Commissioner, supra, and from the assignments involved in the instant cases. The Supreme Court has made the distinction, and it is not for this Court to unmake it. We have already pointed out that Blair v. Commissioner does not conflict with Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168, which involved the extinguishment of a contractual right to future rentals, and not an assignment of an interest in property. See Shuster v. Helvering, 2 Cir., 121 F.2d 643, 645.
Our conclusion is that in 1936 Frederic S. Bell and Frances L. Bell did not sell to Laird Bell income or naked rights to receive income, but sold to him life interests in trust property, and that the considerations received by them were not ordinary income, taxable as such, but were the proceeds of sales of capital assets.
Since the Board was of the opinion that the consideration received by each of the life beneficiaries was ordinary income, it expressed no opinion as to the proper basis for determining the amount of capital gain, if any. The parties are not in accord upon that question, and we are asked to decide it. We think the question should first be determined by the Tax Court. See Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037.
The decision of the Board is reversed, and the cases are remanded for further proceedings not inconsistent herewith.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
Revenue Act of 1936, 49 Stat. 1648, 26 U.S.O.A. Int.Rev.Acts, page 873.
“Sec. 117. Capital Gains and Losses
“(b) Definition of capital assets. For the purposes of this title, ‘capital assets’ means property held by the taxpayer (whether or not connected with his trade or business) * *
Revenue Act of 1986, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Aets, page 825.
“Sec. 22. Gross Income
“(a) General Definition. ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income from any source whatever. • * »”
In Pearce v. Commissioner, 315 U.S. 543, at page 554, 62 S.Ct. 754, at page 760, 86 L.Ed. 1016, the Supreme Court said, referring to Helvering v. Horst, Helvering v. Eubank, and Harrison v. Schaffner: “ * * * Those cases dealt with situations where the taxpayer had made assignments of income from property. He was held taxable on the income assigned by reason of the princi-' pie ‘that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to another, whether to pay a debt or to make a gift, is within the reach’ of the federal income tax law. Harrison v. Schaffner, supra, 312 U.S. at page 580, 61 S.Ct. at page 760, 85 L.Ed. 1055. But in those cases the donor or grantor had ‘parted with no substantial interest in property other than the specified payments of income.’ Id. 312 U.S. at page 583, 61 S. Ct. at page 762, 85 L.Ed. 1055. Here he has parted with the corpus. And ‘the tax is upon income as to which, in the general application of the revenue acts, the tax liability attaches to ownership.’ Blair v. Commissioner, 300 U.S. 5, 12, 57 S.Ct. 330, 333, 81 L.Ed. 465.” See, also, Helvering v. Stuart, 317 U.S. 154, 168, 63 S.Ct. 140, 87 L.Ed. —.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_opinstat | B | 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.
UNITED STATES of America v. Nelson G. GROSS, Appellant.
No. 79-2010.
United States Court of Appeals, Third Circuit.
Argued Jan. 8, 1980.
Decided Feb. 7, 1980.
F. Lee Bailey (argued), Kenneth J. Fish-man, Boston, Mass., for appellant.
Robert J. Del Tufo, U. S. Atty., Newark, N. J., for appellee; Maryanne T. Desmond (argued), Chief, Appeals Division, Asst. U. S. Atty., Newark, N. J., on brief.
, Before SEITZ, Chief Judge, ADAMS and WEIS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
Nelson Gross appeals for the second time the district court’s denial of a writ of coram nobis. In the first appeal, we vacated the order of the trial court and remanded for a full evidentiary hearing on Gross’s allegations of misconduct on the part of government marshals in their dealings with a sequestered jury. After an extensive hearing the district judge found that a deputy marshal had acted improperly, but that his behavior was neither of such character nor of such magnitude as to justify issuance of the writ. We now affirm.
The purported evidence of improprieties was discovered more than two years after the affirmance of Gross’s conviction and after his sentence had been served and his parole supervision terminated. Consequently, relief under Fed.R.Crim.P. 33 or under habeas corpus, 28 U.S.C. § 2255, was not available.
The bases for the petition for writ of coram nobis were statements in an affidavit of Leon Stacey, a former Deputy United States Marshal. Stacey alleged that, while assigned to guard the sequestered jurors, he developed during the first week of the trial a romantic involvement with one of the female jurors which continued until shortly after the trial ended. He further alleged that in the course of his “romancing” he sought to influence her verdict by telling her that the defendant would, if convicted, receive no more than a fine. Two other marshals were claimed to have competed for the affections of another juror and to have attempted similar influence.
At the first hearing on the petition, the district court heard testimony in camera from Stacey, from the current marshal, and from the stenographer employed in preparing the affidavit. The court determined that the manner in which the affidavit was prepared raised doubts as to its credibility, that Stacey’s motives were suspect, and “that all allegations of misconduct during the pendency of the trial [were] false.”
On the first appeal we concluded that a more extensive hearing was necessary because the district court should not have assumed that once it had “discredited] Stacey’s allegations regarding frequent instances of prolonged romantic encounters between himself and a female juror, similar ‘trysts’ between Marshal Service officers and another female juror, and instances in which he attempted to influence directly the juror’s deliberations on Gross’s guilt or innocence, there was no necessity for further judicial inquiry into this case.” We held that “inasmuch as there was other evidence offered here suggesting romantic involvement between sequestered jurors and the officers of the court assigned to supervise their sequestration, a full evidentiary hearing on the issue of juror prejudice was in order.” United States v. Gross, No. 78-1360, slip op. at 5 (3d Cir. Nov. 6, 1978), order reported at 558 F.2d 824.
At the hearing held pursuant to our remand, testimony was adduced from sixteen witnesses, including five jurors, two deputy marshals, the chief deputy marshal, the former marshal, a deputy clerk who had been a matron assigned to the jury, two FBI agents who had participated in an investigation of the Marshal’s office, and four other witnesses. Each relevant witness denied that he or she had heard or observed any discussions relating to the Gross trial between any deputy marshal and any juror.
After hearing much contradictory testimony the trial judge concluded that Stacey’s story was substantiálly fabricated, although there was at least this kernel of truth:
The forelady of the Gross jury testified that Stacey had annoyed certain female members of the jury. A matron assigned to the jury testified that Stacey mentioned his romantic interest in a certain juror.
The forelady believed the matter had been reported to the Trial Judge and that Stacey had been removed on account of his behavior. The matron testified that she reported Stacey to the United States Marshal. In fact nothing was reported to the Trial Judge, however, several witnesses confirmed that Stacey had been reported to the Marshal. The Marshal denied knowing about it, while several Deputy Marshals testified that they heard him verbally order Stacey off the Gross jury.
Because the trial judge is completely competent to sift through testimony and make credibility determinations, and because his findings are not clearly erroneous, we decline the petitioner’s invitation to make our own findings of fact. The legal question we must therefore decide is whether the behavior found to have occurred requires the conclusion that Gross should have been granted the writ of coram nobis. To focus this legal issue more clearly, it is whether the annoyance of some jurors by a deputy marshal and his expression of romantic interest in a specific juror is a sufficient taint on the proceedings to require coram nobis relief.
The interest in finality of judgments dictates that the standard for a successful collateral attack on a conviction be more stringent than the standard applicable on a direct appeal. Behavior that might clearly require a mistrial if brought to the district court’s attention at trial, or a retrial if on direct appeal, might not be sufficient to require coram nobis relief.
Coram nobis is a remedy infrequently used, and the case law on it is accordingly sparse. The Supreme Court has held that, as an extraordinary remedy, coram nobis should be considered only in circumstances “compelling such action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954). Issuance of the writ has been said to be limited to “those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.” United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914) (dictum). Moreover, “[a]ny proceeding which is challenged by the writ is presumed to be correct and the burden rests on its assailant to show otherwise.” United States v. Cariola, 323 F.2d 180, 184 (3d Cir. 1963).
Quoting from an opinion dealing with a direct appeal of a conviction, Gross argues that he has met his burden of demonstrating irregularity during the course of the trial, so that the burden shifted to the government to prove that the irregularity was harmless:
In a criminal case any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.
Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). Assuming that the Remmer shift in presumptions applies to these proceedings, we hold that the district court correctly emphasized that the presumption shifts only if the improper contact between the deputy marshal and a juror involved “the matter pending before the jury. ” That matter, we held in United States v. Boscia, 573 F.2d 827, 831 (3d Cir.), (interpreting Remmer), cert. denied, 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411 (1978), “is the guilt or innocence of the defendant[].”
The trial judge specifically disbelieved the testimony that Stacey had communicated with a juror regarding the substance of the trial itself. The conduct found to have occurred — however improper and reprehensible — was simply “annoyance” of some female jurors and the expression of a romantic interest in one. Because this finding is not clearly erroneous, we affirm the district court’s conclusion that Gross did not carry his burden of proving that he was unjustly convicted in an “irregular and invalid” proceeding. The judgment of the district court will accordingly be affirmed.
. United States v. Gross, No. 78-1360 (3d Cir. Nov. 6, 1978) (unpublished per curiam), order reported at 588 F.2d 824.
. See United States v. Gross, 375 F.Supp. 971 (D.N.J.1974), aff’d, 511 F.2d 910 (3d Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975). In the previous appeal this court affirmed the district court’s holding that it did not have jurisdiction over Gross’s Rule 33 motion based on newly discovered evidence, because it was not made within two years of the date of final judgment. See United States v. Gross, 446 F.Supp. 948, 952-53 (D.N.J.1978), aff’d on this issue, No. 78-1360 (3d Cir. Nov. 6, 1978). Final judgment has been defined as the date when the appellate court issues its mandate affirming the conviction. United States v. White, 557 F.2d 1249, 1250-51 (8th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977); United States v. Granza, 427 F.2d 184, 185 n. 3 (5th Cir. 1970); Casias v. United States, 337 F.2d 354, 356 (10th Cir. 1964); Smith v. United States, 109 U.S.App.D.C. 28, 31, 283 F.2d 607, 610 (D.C. Cir. 1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961).
. Gross was convicted of conspiracy to defraud the United States, aiding and assisting the filing of a false tax return, obstruction of justice, and subordination of perjury. See id. His sentence, as later reduced, was to imprisonment for a year and a day. After serving five months of the sentence, he was released on parole, supervision of which ended June 1, 1977. Because he was no longer “in custody” when the present motion was filed, no jurisdiction for habeas corpus existed.
. The judge ascertained that Gross had paid all expenses of Stacey’s trip from California to New Jersey to prepare the affidavit during the course of a two-day meeting. Stacey had admitted that the wording of the affidavit “was primarily the creation of [Gross],” and that several key statements as well as the name of the juror with whom Stacey allegedly became friendly were supplied by Gross. United States v. Gross, 446 F.Supp. 948, 954 (D.N.J.), vacated and remanded, 588 F.2d 824 (3d Cir. 1978).
. Stacey had been the subject of a magazine story and was to be the protagonist of a book. The alleged improprieties were said to be disclosed at the urging of the author and for the purpose of gaining financial benefit from public attention. Furthermore, there were suggestions of personal animosity between Stacey and other members of the Marshal’s service. Id. at 954-55.
. Id. at 958.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer: |
songer_appel1_7_2 | D | 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 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").
Linda (Sinklear) LESSMAN, Plaintiff-Appellant, v. Bill McCORMICK, Fred Howard, Ed Ritchie, Ed White, John Finden, James Foster, John Hopkins, Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds, and Topeka Bank & Trust Company, Defendants-Appellees.
Nos. 77-1951 and 77-2045.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Nov. 14, 1978.
Decided Jan. 26, 1979.
Fred W. Phelps, Jr. of Fred W. Phelps, Chartered, Topeka, Kan., for plaintiff-appellant.
Leonard M. Robinson, Topeka, Kan., for defendant-appellee Bill McCormick.
Wilburn Dillon, Jr., Topeka, Kan. (Tom L. Green, Topeka, Kan., with him on brief), for defendants-appellees Fred Howard, Ed Ritchie and Ed White.
L. M. Cornish, Jr., Topeka, Kan. (Henry J. Schulteis, Topeka, Kan., with him on brief), of Glenn, Cornish & Leuenberger, Chartered, Topeka, Kan., for defendants-appellees John Finden, James Foster, John Hopkins, Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds, and Topeka Bank & Trust Co.
Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
These appeals arise out of a Civil Rights Act complaint filed by Linda (Sinklear) Lessman against the Topeka Bank & Trust Company and individual defendant appellees who include the Mayor of the City of Topeka, a Topeka policeman Ed White and his supervisors, including the Chief of Police, Russ Reynolds, an employee of the bank, and all of the members of the board of directors of Topeka Bank & Trust Company. Jurisdiction is asserted under 42 U.S.C. §§ 1983, 1985(2), (3), 1986 and 28 U.S.C. § 1343(3). The trial court dismissed the complaint upon motion of the defendants. Ms. Lessman has appealed.
One question on appeal is whether the complaint states a cause of action under 42 U.S.C. § 1983, specifically whether the actions recited, if true, show a deprivation of a right protected by the Constitution and the laws of the United States within the meaning of that section. Also at issue is whether the complaint is sufficient to state a cause of action under 42 U.S.C. §§ 1985(2) or (3) or 1986, specifically whether she has brought herself within a protected class.
The complaint alleged a conspiracy among all defendants to deny plaintiff equal protection of the law and to injure her property and person. It asserted that the defendants arranged to have White, a city police officer, arrest plaintiff upon a warrant and complaint alleging that she had failed to pay an overtime parking ticket. It was further alleged that White arrested and imprisoned the plaintiff, took her to the police station, where she paid the fine for overtime parking (which she admitted she owed); that having paid the fine plaintiff’s imprisonment was continued by informing her that she must see the defendant Reynolds, the bank employee; that White ordered plaintiff to wait in a room until Reynolds appeared, who told plaintiff that when she failed to respond to his letters to her as a debtor of the bank he had prevailed upon the city’s police power to arrest and imprison her.
The reasons for the conspiracy were stated to be to instill in plaintiff a fear of the awesome powers of “those who effect arrests and imprisonments” by subjecting her to humiliation, embarrassment and the like, and to instill in her a fear of those who have the power to cause others to effect arrests and imprisonment. The reason for the wish to instill such fear was declared to be to force the plaintiff to give the bank a preferred position in relation to plaintiff’s other creditors who did not have access to such compelling means of exacting payments.
No specific facts were alleged with respect to any defendants other than White and Reynolds, except that they “arranged to have the defendant, White, arrest plaintiff,” and that they conspired to deprive plaintiff of her rights.
Ruling upon motions by the defendants to dismiss, the trial court declared that there was a bare conclusory allegation of conspiracy, with no specification, insufficient to withstand a motion to dismiss as to the Section 1985 claim. It said that any cause under the portion of § 1985(2) following the semicolon, and § 1985(3) requires a colorable claim of class-based discriminatory animus which is not pleaded here, “nor does it appear they can fairly be so pleaded given the facts which underlie this suit.” Since a cause under § 1986 depends upon statement of valid cause of action under § 1985, that claim also was ruled out.
With respect to the § 1983 claim it found the conclusory statements insufficient to state a cause against any other than defendants White and Reynolds. As to them, there was sufficient state action or action under color of state law, but characterizing the claim as essentially one for false arrest or imprisonment the judge thought the incidents alleged were not of sufficient importance to support federal jurisdiction. Therefore, the complaint was dismissed as to all defendants.
Upon review we must bear in mind first that this was not a ruling upon a motion for summary judgment, but one where a complaint was dismissed for failure to state cause of action. The allegations of the complaint must be taken at face value and construed most favorably to the pleader. A motion to dismiss must not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
Thus we must carefully analyze the complaint against the backdrop of each of the sections under which jurisdiction was invoked, to see if it can pass the required tests under the liberal construction rules we are bound to apply.
I
We consider first the allegations of claims under 42 U.S.C. §§ 1985(2), 1985(3) and 1986. Appellant’s brief concedes that only the portion of § 1985(2) following the semicolon is invoked here. With respect to this and § 1985(3) she acknowledges that there must be class-based discriminatory animus. She alleges it is present because she is a member of a class consisting of all debtors, and that the discrimination was to give one creditor an unfair and unjust advantage over her as a debtor.
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), discussing § 1985(3), stated:
The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all. (Footnotes omitted.)
The Supreme Court expressly declined to decide whether a conspiracy motivated other than by racial bias would be actionable under that section. 403 U.S. at 102 n.9, 91 S.Ct. 1790. This circuit has held the same kind of class-based discriminatory animus is required under that portion of § 1985(2) following the semicolon. Smith v. Yellow Freight System, Inc., 536 F.2d 1320 (10th Cir. 1976). We have also ruled that where there is no valid claim under § 1985 none can exist under § 1986. Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977).
The circuit court cases which have recognized under § 1985, classes which are not racially based, have stayed close to the areas protected by the First Amendment. E. g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indians with a particular political view); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (members of Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of a political candidate); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (employees with a certain political view).
Debtors have not been recognized as a protected class as yet. Bankrupts have been expressly held not to be such a class in an en banc decision of the Fifth Circuit. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (1977).
Surely if we should recognize debtors as a protected class it would be the largest in America. We do not have to make that decision, however, because the plaintiff is not complaining about a conspiracy against all debtors, only those debtors who owe the Topeka Bank & Trust Company, who have defaulted on their loans, have not responded to ordinary means of pressure, and have committed some violation of law which gives the alleged coconspirator police officers an excuse to arrest them. That surely does not describe a discriminatory animus against all debtors, against a type or class of debtors, or anyone other than this particular individual. The instant case is not essentially different from Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973) where we held a physician denied staff privileges at a hospital had not shown himself the object of a class-based invidiously discriminatory animus. The complaint must allege facts showing a conspiracy against plaintiff “because of” her membership in a class, and that the criteria defining the class “were invidious.” Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir. 1975).
The complaint was properly dismissed as to the 42 U.S.C. §§ 1985(2), (3) and 1986 claims.
II
We turn to the sufficiency of the allegations of the complaint to state a claim under 42 U.S.C. § 1983. Two elements are necessary for recovery under that section.
First, the plaintiff must prove that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” This second element requires that the plaintiff show the defendant acted “under color of law.”
Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) . The allegations are sufficient, at least as to policeman White and the bank employee Reynolds, to find action under color of state law. The thrust of § 1983 is to protect against the misuse of power by officials such as the police here. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Private individuals and entities are subject to liability under the section. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In fact the trial court found there was action under color of state law. The dispute, however, is over whether defendant was deprived of a right secured by the Constitution and laws of the United States within the meaning of § 1983.
While plaintiff claims the defendants intended to injure her in her property and in her person, and to force her to prefer the bank over her other creditors, there is no allegation that she was unlawfully deprived of her money or property. She paid a fine on the parking ticket for which she was arrested; but admits it was owed. There is no statement in the complaint that she did in fact prefer the bank over her other creditors because of this action. The complaint does allege that she was arrested and taken to the police station, and after paying her fine she was not released until she talked to the bank officer. Thus her complaint states a claim for false arrest and false imprisonment under color of state law. We are required to consider whether that claim is within the protection of § 1983.
Certainly the concept of “liberty” guaranteed by the Fourteenth Amendment denotes freedom from bodily restraint. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Perhaps, however, not all unlawful deprivations of liberty were intended to be protected under § 1983. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), involving defamation, whereby local police publicly identified the plaintiff as a shoplifter, it was held this cause was not within the scope of § 1983. The court noted that the Civil Rights Act was not intended to create a body of general federal tort law, and “the procedural guarantees of the Due Process Clause cannot be the source for such law.” 424 U.S. at 701, 96 S.Ct. at 1160.
Nevertheless, in numerous instances the courts have held that false arrest and false imprisonment give rise to claims under § 1983. In most of these cases there were aggravated circumstances such as assaults, harassment or unlawful searches. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), for example, there was an unlawful arrest, harassment, illegal search and holding of the plaintiff for about 10 hours.
There have been a number of cases in the Tenth Circuit. Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963) involved an illegal arrest, excessive force, seizure of property, denial of bail and a compelled guilty plea. In Marland v. Heyse, 315 F.2d 312 (10th Cir. 1963), plaintiff was arrested on three separate occasions, held at the police headquarters for five hours on the first, two hours on the second and overnight the third time. The court held that a jury question was presented as to whether the conduct of the police officers “on the different occasions” was so arbitrary, unreasonable and without probable cause as to subject plaintiff to a deprivation of rights under the Constitution. In Martin v. Duffie, 463 F.2d 464 (10th Cir. 1972), a complaint was held to state a cause of action against police officers where there was arrest without a warrant and the police department did not show probable cause. But in that case while being questioned, plaintiff was struck on the head with such severity that he suffered a brain injury which required immediate surgery. Also the arresting officers had made three separate visits to plaintiff’s home to search (apparently with plaintiff’s consent), none of which were productive.
There are, however, cases which apparently involved no violence, unlawful searches or repeated harassment. We found a cause was stated under § 1983 when state officials were alleged to have abused their extradition power by turning over the plaintiff to another state without affording him the hearing required by state statutes. Sanders v. Conine, 506 F.2d 530 (10th Cir. 1974). Also while a defendant’s verdict was upheld, the court in Van Camp v. Gray, 440 F.2d 777 (10th Cir. 1971), appears to assume allegations of an unlawful arrest, without violence or complicating facts, stated a case for the jury.
Other circuits also have cases recognizing § 1983 jurisdiction where there was little more than an unlawful arrest. See Duriso v. K-Mart No. 4195, 559 F.2d 1274 (5th Cir. 1977); Beightol v. Kunowski, 486 F.2d 293 (3d Cir. 1973); Giordano v. Lee, 434 F.2d 1227 (8th Cir. 1970); Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968) (two hours detention); Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963) (four or five hours detention); cf. Cohen v. Norris, 300 F.2d 24, 30-31 (9th Cir. 1962).
We refused to find a cause of action under § 1983 in a case where a student being ticketed for a traffic violation attempted to drive his car away and refused to sign a ticket. He was taken into custody, handcuffed, transported ten miles to a Justice of the Peace, not allowed to make bond on an American Automobile Association bond card, and kept in a cell for a period in excess of one hour. The court stated that “in the final analysis this incident falls short, not only because the officers acted in accordance with local law requiring that a violator be arrested when he fails to sign the ticket, but also because the case is insubstantial.” Wells v. Ward, 470 F.2d 1185, 1189 (10th Cir. 1972).
Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977) involved a case of mistaken identity. Plaintiff was arrested and kept either in jail or a state mental hospital for 33 days before it was established that police had in fact arrested the wrong person. The key question in the case was whether the investigators of a prosecutor were entitled to the prosecutor’s immunity. The court held that they were under the circumstances of the case. But in dictum it was stated that a plaintiff must also demonstrate a violation of federal constitutional rights; that while the slightest interference with personal liberty would constitute false imprisonment under state law, it does not follow that all such invasions “however trivial or frivolous” are sufficient to invoke a remedy under the Civil Rights Act. We do not read that dictum to mean that false imprisonment for 33 days would be an insubstantial, trivial or frivolous deprivation of personal liberty.
The court below treated the arrest as legal, since there was a valid outstanding warrant against the plaintiff on the overtime parking violation. It viewed the deprivation of liberty as being only for a brief period, i. e., that time after the plaintiff had paid her fine and until the bank officer interrogated her. The court also noted that a state court action had been commenced involving substantially' the same allegations. It thought these factors indicated an insubstantial case. We do not take the same view.
The complaint does not state how much time elapsed between the payment of the fine and the arrival of the bank officer. If it had been a long period perhaps plaintiff would have so alleged in her complaint. But that does not necessarily follow. Further, we do not consider the fact the arrest was made upon a valid warrant necessarily means that the time of the false imprisonment begins only after the fine was paid. The complaint alleged that the purpose of the arrest was in aid of the bank’s debt collection process. It would be relevant to know whether the Topeka police, routinely or even occasionally, go to a person’s home to make an arrest upon a violation for overtime parking. If this is never done unless there is a large accumulation of tickets, then although the warrant would be valid, it could still be an abuse of power. In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), white and black clergymen were arrested and detained for a few hours for attempting to use a segregated rest room at a Mississippi bus station. The court held that the arresting officers would not be liable under § 1983 if they acted in good faith to arrest under a statute they thought was valid. But it said the officers did not defend on that basis, and the petitioners were entitled to show the officers were not acting in such good faith belief in making the arrest. It remanded for a new trial on the § 1983 claim. We read this case as support for the proposition that an arrest which might be lawful on its face can be an abuse of power, condemned by the Civil Rights Act, if done for an improper purpose.
We must take the allegations of the complaint in the instant case as true when reviewing the grant of a motion to dismiss. This is not a case where a policeman acted with excessive zeal in a legitimate arrest situation, as in Wells v. Ward, supra, or where there was an honest mistake of identity, as in Atkins v. Lanning, supra. It is a case of an arrest, not to collect on the overtime parking ticket, but to give improper aid to the bank. This may be close to the line of being an insubstantial deprivation of liberty, but without the development of facts we cannot say that it is, at least as to White and Reynolds.
All that is alleged against the defendants other than White and Reynolds is that they conspired together and caused the arrest and detention. No specific facts are set out connecting them to the arrest. Even so we think there is sufficient here to pass the applicable liberal construction test. Specific facts are stated with respect to the officer forcing plaintiff to stay at police headquarters until the bank employee arrived. It is reasonable to inquire whether other bank officers or directors knew of and approved this means of intimidation. It is also a reasonable inquiry whether Reynolds contacted only Officer White or whether he may have called someone else in the police hierarchy who relayed the request to the arresting officer.
In many cases of conspiracy essential information can only be produced through discovery, and the parties should not be thrown out of court before being given an opportunity through that process to ascertain whether the linkage they think may exist actually does. Considering a somewhat analogous complaint under the Railway Labor Act the Supreme Court said:
The respondents also argue that the complaint failed to set forth, specific facts to support its general allegations of discrimination and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is “a short and plain statement of the claim” that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified “notice pleading” is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Following the simple guide of Rule 8(f) that “all pleadings shall be so construed as to do substantial justice,” we have no doubt that petitioners’ complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745. (Footnotes omitted.)
Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). The Supreme Court has indicated the same position should be taken as to § 1983 complaints. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
It seems unlikely to us that any connection can be shown to keep the mayor in this action. The brief indicates the may- or was added because he was the supervisor of the police. The same may be said as to other defendants. The doctrine of respondeat superior does not apply to these cases. Personal participation will have to be demonstrated to keep them in the case. It may well be that at some stage a motion for summary judgment may be appropriate to let some defendants out. But we hold the complaint is sufficient to withstand a motion to dismiss as to the § 1983 claims.
Thus we affirm the grant of the motion to dismiss the complaint as to the counts involving §§ 1985(2), (3), and 1986 as to all defendants, but not with respect to the § 1983 claims. Each party is to bear its own costs of this appeal. The case is remanded for proceedings consistent with this opinion.
Question: 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)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_frivol | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that either the original case was frivolous or raised only trivial issues and therefore was not suitable for actions on the merits?" 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".
UNITED STATES of America, Plaintiff-Appellee, v. Edwin Thomas BARRETT, Defendant-Appellant.
No. 81-1622.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 7, 1982.
Decided April 11, 1983.
As Amended on Denial of Rehearing June 7, 1983.
Stephen R. Sady, Portland, Or., for defendant-appellant.
William W. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Before CHOY, TANG and BOOCHEVER, Circuit Judges.
CHOY, Circuit Judge:
Edwin Barrett appeals from his conviction, after trial by jury, for robbing a federally insured savings and loan association, in violation of 18 U.S.C. § 2113(a). He contends that the trial court erred in (1) denying his motion for a continuance that was needed to enable his counsel to prepare for cross-examination and rebuttal of the Government’s photographic expert; (2) refusing to substitute an alternate juror for, or allow defense counsel to question, a juror who claimed to have been sleeping during the trial; and (3) admitting certain testimony of Government witnesses that should have been excluded. Because we find error in the trial court’s handling of the “sleeping”-juror question, we remand for a hearing on this issue.
I. Facts
On June 5, 1981, at about 3:25 p.m., a lone robber entered the Uptown Branch of Western Savings and Loan in Portland, Oregon. The robber approached Lydia Bass, a teller, showed her a gun, and demanded money. Bass gave the robber approximately $410 and two clips of bait bills — one containing a dye pack and the other activating the bank surveillance cameras.
On June 9, 1981, a Federal Bureau of Investigation agent and a Portland police officer went to Barrett’s residence and confronted Barrett with a surveillance photograph taken during the June 5th robbery. Barrett accompanied the officers to the Portland office of the FBI where he was questioned by Special Agent Stanley Rénning, released, then arrested two and a half hours later.
At trial, the major issue was one of identification. The Government introduced four 8- by 10-inch surveillance photographs of the robber and two smaller photographs of Barrett as he appeared before he shaved his beard and mustache. All the witnesses who testified at trial were for the Government. Bass, the teller, testified that she had previously selected Barrett’s photograph as that of the robber in a pretrial photographic spread, although she had not been certain of the identification. She also identified a gun and clothing seized from Barrett as resembling those used by the robber, and made a positive in-court identification of Barrett.
Barbara Lemon, Barrett’s live-in girl friend, testified that the person in the surveillance photograph was Barrett. She also testified that the clothes seized by the FBI were worn by Barrett on June 5th, the day of the robbery; that the gun seized by the FBI was a starting pistol that belonged to her; that Barrett left home at 7:00 a.m. on the day of the robbery, claiming that.he was going to work for Hoffman Construction Company, and did not return until 4:00 p.m.; that when he returned at 4:00 p.m., Barrett gave her $230 in cash to pay a telephone bill; that later that same day he shaved off his beard and mustache; and that he took her to dinner that night and paid the bill, something he usually did not have money to do.
Special Agent Stanley Renning of the FBI testified regarding statements Barrett had made while being questioned on June 9th about the robbery. Agent Renning testified that Barrett said that he spent the major portion of the afternoon at home preparing for a fishing trip on the day of the robbery, and that he shaved off his beard and mustache on June 4th, the day before the robbery.
Finally, Peter Smerick, an FBI photographic expert, testified that he compared the clothing of Barrett seized by the FBI with that worn by the robber in the bank surveillance photograph by use of a microscope and high-intensity light. Smerick testified to detailed similarities between Barrett’s clothing seized by the FBI and that worn by the robber in the surveillance photograph, including the color and placement of buttons on the sweater, the stripes and placement of buttons on the shirt, and the stains found on the cap.
II. Discussion
A. Denial of Barrett’s Motions for Con-. tinuance
Barrett contends that in view of the Government’s last-minute production of a photographic expert witness, the trial court should have granted a continuance to enable his counsel to prepare for cross-examination and rebuttal of that expert. The Government first notified Barrett of its intention to call a photographic expert as a witness on July 28, 1981, eight days before trial. Barrett had earlier moved for a continuance because of his counsel’s involvement in other trials. On July 31,' 1981, Barrett supplemented this motion by submitting an affidavit by his counsel stating that a continuance was necessary in order for Barrett to prepare for the expert and possibly obtain a defense expert.
On August 3, 1981, two days before trial, the Government provided Barrett with the results of the expert’s report. Although the record indicates that Barrett made a diligent effort to secure an expert to assist him before trial, he was unsuccessful. Barrett made numerous motions for continuance before and during trial which were all denied.
Barrett relies principally on the Second Circuit decision of United States v. Kelly, 420 F.2d 26 (2d Cir.1969), to support his argument that the trial court’s failure to grant a continuance constitutes reversible error. The defendants in Kelly were two police officers who were charged with retaining and selling cocaine that they had seized in an earlier raid. At trial, the Government introduced the results of neutron-activation tests which tended to show that the cocaine sold by the defendant police officers came from the same batch seized in the earlier raid. The Government, in violation of a discovery order, had not informed the defendants of the tests, and the defendants first learned of the test results when they were introduced at trial. The defendants’ motion for a continuance to carry out its own version of the tests was denied and the defendants were subsequently convicted.
In reversing the defendants’ convictions, the Second Circuit held that “fairness requires that adequate notice be given the defense to check the findings and conclusions of the government’s experts.” Id at 29.' The court ordered a new trial to give the defendants a fair opportunity to run their own neutron-activation tests. Id
We conclude that the rule announced in Kelly applies to the present case. Thus, the question becomes whether Barrett was given adequate time to obtain an expert to assist him in attacking the findings of the Government’s photographic expert. Under the circumstances of this case, we find that Barrett was not given adequate time to obtain an expert to assist him in attacking the Government’s expert.
Barrett was first notified of the Government’s intent to call a photographic expert eight days before trial. He received the results of the expert’s tests only two days before trial. The record indicates that Barrett probably could have obtained an expert to assist him had he been given more time.
The denial of a continuance is within the trial court’s discretion and should not be disturbed on appeal absent clear abuse. United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir.1978). In failing to grant the requested continuance to allow Barrett adequate time to obtain the assistance of an expert, the trial court clearly abused its discretion. Cf. United States v. Durant, 545 F.2d 823, 827-28 (2d Cir.1976) (failure to grant indigent defendant’s request for fingerprint expert violates Criminal Justice Act); Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.1975) (defendant has right to have own ballistics expert examine evidence).
Our finding of error does not end our inquiry. We must also determine whether the error amounts to one requiring reversal of Barrett’s conviction. In this context, it is important to note that our finding of error is based on our determination that Barrett should have been given additional time to secure a defense expert for the limited purpose of assisting him in attacking the credibility of the Government’s expert through cross-examination and rebuttal. It is not based on a determination that Barrett was entitled to additional time to secure a defense expert witness to provide affirmative proof of his innocence by showing that his seized clothes and the clothes worn by the robber in the surveillance photograph were different. Barrett received general discovery in the case three weeks before trial; it was only notification of the Government’s intention to call a photographic expert and the results of the expert’s tests that were received late. If Barrett had desired a photographic expert to provide affirmative proof of his innocence, he had ample time to secure one. The prejudice resulting to Barrett from the denial of the continuance is thus limited to his difficulty in attacking the credibility of the Government’s witness without the aid of an expert.
This prejudice could have been eliminated by excluding the testimony of the Government’s expert witness. Therefore, the denial of the continuance would be harmless error if the improper admission of the testimony of the Government’s expert under the facts of this case would be deemed harmless.
An error is considered harmless and shall be disregarded on review if it does not affect substantial rights of the defendant. Fed.R.Crim.P. 52(a). This circuit has for-formulated a test requiring the determination of whether the prejudice resulting from the error was more probably than not harmless. United States v. Castillo, 615 F.2d 878, 883 (9th Cir.1980).
The Government introduced the testimony of the photographic expert for the purpose of identifying Barrett as the robber. We find that the other Government evidence introduced at trial identifying Barrett as the robber is so overwhelming that the improper admission of the expert’s testimony would be deemed harmless error. United States v. Burke, 506 F.2d 1165, 1170 (9th Cir.1974) (erroneous admission of photographic expert’s testimony harmless in view of other overwhelming evidence), cert. denied, 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975); United States v. Brown, 501 F.2d 146, 150 (9th Cir.1974) (same), rev’d in part on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); United States v. Trejo, 501 F.2d 138, 143 (9th Cir. 1974) (same). The Government’s considerable identification evidence included (1) four clear 8- by 10-inch bank surveillance photographs of the robber for the jury to examine and compare with two smaller photographs of Barrett taken before he had shaved his beard and mustache, Barrett’s clothes seized by the FBI, and Barrett’s physical appearance at trial; (2) a positive in-court identification by Bass, the teller, who had previously given a fairly accurate description of the robber to the police and who also identified the clothing seized from Barrett as resembling that worn by the robber; and (3) the testimony of Lemon, Barrett’s live-in girl friend, who identified Barrett as the person in the surveillance photo. Since the improper admission of the Government expert’s testimony would be deemed harmless, it follows that the district court’s failure to grant the continuance is harmless error. We hold that no substantial rights of Barrett were affected by the error.
B. Sleeping Juror
After the court had instructed the jury but before the jury began its deliberations, a juror apparently asked to be removed from the panel because he had been sleeping during the trial. The judge advised both counsel of the juror’s request, stating;
Counsel, Mr. Detweiler, Juror No. 4, has been sleeping during this trial. And he’s indicated to the clerk that he would prefer to be excused in favor of the alternate juror, Mr. West.
The judge went on to state:
I don’t have the authority to do that [order the substitution]. If you wish to do it by stipulation, I shall, or will leave it alone, depending on the view of counsel.
Barrett requested the substitution, but the Government refused to so stipulate. In the absence of the Government’s stipulation, the judge refused to order the substitution.
After the jury returned a verdict of guilty, Barrett filed a motion to permit the defense to interview the juror. The trial judge denied the motion, stating:
On the matter of the juror, there was no juror asleep during this trial. I watch the jurors constantly. Of course, I can’t tell whether somebody might have felt drowsy, nor could I tell if somebody has a personal problem of some kind which might divert their mind from the case.
Other circuits have allowed a trial judge, in response to a defendant’s allegation that a juror had been sleeping, to take judicial notice of the fact that the juror had not been sleeping without requiring the judge to.make any inquiry into the allegation. United States v. Curry, 471 F.2d 419, 421-22 (5th Cir.), cert. denied, 411 U.S. 967, 93 S.Ct. 2150, 36 L.Ed.2d 688 (1973); United States v. Carter, 433 F.2d 874, 876 (10th Cir.1970). We do not believe, however, that under the particular circumstances of this case, the trial judge could properly take judicial notice of the fact that “there was no juror asleep during this trial” without making further inquiry into the matter. Unlike the above cited cases where the allegation of a sleeping juror was raised by the defendant, the court in this case was apparently informed by the juror himself that he had been sleeping during the tri^l. In view of the juror’s own statement, we have no basis for accepting the trial judge’s bare assertion that no juror had been asleep during trial.
The trial judge has considerable discretion in determining whether to hold an investigative hearing on allegations of jury misconduct and in defining its nature and extent. United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). We nevertheless hold that in failing to conduct a hearing or make any investigation into the “sleeping”-juror question, the trial judge abused his considerable discretion in this area. The case is remanded with instructions that the trial judge conduct a hearing to determine whether the juror in fact was sleeping during trial and, if so, whether the juror’s being asleep prejudiced Barrett to the extent that he did not receive a fair trial. United States v. Hendrix, 549 F.2d at 1229. The trial judge shall conduct the hearing and shall submit his findings and conclusions along with a copy of the hearing transcript to this court. We retain jurisdiction pending receipt of the trial judge’s findings and conclusions and a copy of the hearing transcript.
C. Admission of Testimony
Finally, Barrett claims that the trial court erred in admitting the testimony of several Government witnesses. Specifically, he challenges the admission of (1) the in-court identification of the teller, Bass; (2) the testimony of his girl friend, Lemon, identifying him as the person in the bank surveillance photograph; and (3) certain statements he made to FBI Special Agent Renning.
1. Bass’ In-Court Identification
Approximately two weeks after the robbery, the teller, Bass, was asked to identify the robber from among a pretrial photographic spread prepared by the FBI. The photographic spread consisted of nine photographs of white males of similar age and possessing similar facial characteristics. Bass selected Barrett’s photograph as strongly resembling the robber, although she was not certain of the identification. The day before the trial, Bass was again shown the photographic spread along with the surveillance photographs and two smaller photographs of Barrett before he had shaved his beard and mustache. At trial, she made a positive in-court identification of Barrett.
Convictions based on in-court identification following a pretrial identification by photograph will be set aside where the photographic-identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Barrett’s principal contention is that the pretrial photographic spread was so impermissibly suggestive that it tainted Bass’ subsequent in-court identification. Specifically, Barrett asserts that (1) he was the only person in the photographic display wearing dark glasses (the robber had been described as wearing dark glasses); (2) his photograph was one of five in which height lines typical of a booking facility appeared in the background; (3) all the men in the photographic spread were clean-shaven, implicitly indicating that the robber had shaved; and (4) he was the largest person in the photographic spread.
We have examined the photographic spread and agree with both the trial judge’s observation that it was “an extraordinarily fair throwdown,” and his finding that the spread was not impermissibly suggestive. See United States v. Collins, 559 F.2d 561, 563 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977). All the men in the photographic display are remarkably similar in appearance. The only noticeable difference is that Barrett is the only one wearing photosensitive glasses and thus his glasses have a darker tint than those worn by the others. But even this difference is barely noticeable and does not serve to single out Barrett from the others.
Moreover, even if there were some suggestiveness in the photographic-spread identification, we find that Bass’ in-court identification was sufficiently reliable to justify its admission. The reliability of an in-court identification is the linchpin in determining its admissibility. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); United States v. Field, 625 F.2d 862, 866 (9th Cir.1980). The Supreme Court has identified five factors among the totality of the surrounding circumstances that we must consider in assessing the reliability of the identification testimony. They are:
1. [t]he opportunity of the witness to view the criminal at the time of the crime,
2. the witness’ degree of attention,
3. the accuracy of the witness’ prior description of the criminal,
4. the level of certainty demonstrated by the witness at the [pretrial] confrontation, and
5. the length of time between the crime and the [pretrial] confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); United States v. Field, 625 F.2d at 866. These five indicia of reliability must be balanced by the reviewing court against the corrupting effect of the suggestive pretrial identification procedure to determine whether the in-court identification should have been admitted. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; United States v. Field, 625 F.2d at 866.
Applying the five-factor analysis to the facts of the present case, we find that Bass had a good opportunity to view the robber at the time of the crime. She was the victim of the robbery and testified that she had taken a long look at the robber during the robbery. Being the target of the robbery, her degree of attention was undoubtedly high. Her actions in giving the robber two clips of bait bills, one containing a dye pack and the other activating the surveillance camera, demonstrates her alertness at the time of the robbery. Bass’ prior description of the robber was detailed and fairly accurate. She correctly described the robber as a white male, about 55 to 60, about six feet tall, stout with a baker’s belly, wearing a red baseball cap,' green sweater, jeans, and horn-rimmed glasses. Only her description of the robber’s shirt was incorrect. Although her level of certainty in identifying Barrett at the pretrial photographic spread was not high, she did select Barrett from among nine similar photographs. Finally, the length of time between the robbery and Bass’ pretrial photographic-spread identification was only two weeks.
Weighing these five strong indicia of reliability against the minimal suggestiveness of the pretrial photographic spread, we are convinced that Bass’ in-court identification was sufficiently reliable to justify its admission.
2. Lemon’s Lay-Opinion Identification
As part of her testimony at trial, Lemon, Barrett’s girl friend, identified Barrett as the person in the bank surveillance photograph. Barrett argues that the admission of this testimony violated Fed.R.Evid. 701(b) which limits lay-opinion testimony to that which is “helpful to... the determination of a fact in issue.” Barrett contends that any need for Lemon’s lay-opinion identification was totally obviated by the fact that the jury had before it two photographs of Barrett with a beard and mustache as well as Barrett himself to compare against the surveillance photographs. He therefore claims that Lemon’s lay-opinion identification was not helpful to the determination of the identification issue.
We disagree. Barrett, like the robber in the surveillance photograph, had a full beard and mustache around the time of the robbery. Since that time, his appearance had substantially changed as he was clean-shaven during the trial. We find that in view of Lemon’s intimate acquaintance with Barrett when he had a beard and mustache, and the subsequent change in his appearance, Lemon’s lay-opinion identification of Barrett was helpful to the determination of the identification issue as required by Rule 701. See United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir.) (lay-opinion identification admissible under Rule 701 where defendant’s appearance had significantly changed since time of robbery), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980).
We will not disturb the trial court’s discretion to admit lay-opinion testimony under Rule 701 absent clear abuse. United States v. Butcher, 557 F.2d 666, 670 (9th Cir.1977). We find no abuse of discretion in the trial court’s admission of Lemon’s lay-opinion identification under Rule 701.
Barrett also argues that the admission of Lemon’s testimony violated Fed.R. Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice. We again apply the abuse-of-discretion standard of review, United States v. Hobson, 519 F.2d 765, 771 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975), and find Barrett’s unfair-prejudice claim to be without merit.
3. Admission of Statements Made by Barrett
At trial, FBI Special Agent Renning testified to statements Barrett had made while being questioned about the robbery. Renning testified that Barrett said that he spent the major portion of the afternoon of June 5th, the date of the robbery, preparing for a fishing trip and that he shaved off his beard and mustache on June 4th, the day before the robbery. Barrett contends that these statements should have been suppressed because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
We disagree. The trial court held a pretrial suppression hearing to determine the admissibility of the challenged statements. The trial'court heard conflicting testimony from FBI agents Stewart and Renning on the one hand and Barrett on the other. While acknowledging the difference in testimony, the court found that Barrett had his Miranda rights read to him in full. The court further found that Barrett was not in custody nor under arrest when he made the statements.
Findings of fact made at a suppression hearing will not be disturbed on appeal unless clearly erroneous. United States v. Botero, 589 F.2d 430, 433 (9th Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979). In making its findings, the trial court credited the testimony of FBI agents Stewart and Renning over that of Barrett. This credited testimony provides support for the trial court’s findings. We therefore hold that the factual finding of the trial court that Barrett was read his Miranda rights is not clearly erroneous and is entitled to our acceptance on appeal. See United States v. Coletta, 682 F.2d 820, 825 (9th Cir.1982), cert. denied, - U.S., 103 S.Ct. 1187, 75 L.Ed.2d 433 (1983); United States v. Dufur, 648 F.2d 512, 514 (9th Cir.1980), cert. denied, 450 U.S. 925, 101 S.Ct. 1378, 67 L.Ed.2d 355 (1981).
Applying the facts found by the district court, we conclude that Barrett’s Miranda rights were not violated and that his statements were properly admitted. We do not reach the question of whether Barrett was not in custody at the time he made the statements, and thus was not entitled to any Miranda protection, Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). Even assuming he was in custody and entitled to Miranda protection, he was advised of his rights under Miranda and waived them.
III. Conclusion
We find that the trial court’s denial of the continuance was error but, under the circumstances of this cáse, the error was harmless. We also find that the trial court did not err in admitting the testimony of government witnesses challenged by Barrett on appeal. However, because we believe that the trial judge abused its discretion in failing adequately to investigate the “sleeping”-juror question, we remand the case for a hearing on this matter. We retain jurisdiction of this case pending receipt of the trial judge’s findings and conclusions, along with a copy of the hearing transcript, on the “sleeping”-juror question.
. Lemon, who was living with Barrett at the time of the robbery, turned over both the clothes and gun to the FBI after being approached by them.
. See supra note 1.
. Candice Philbrick, payroll clerk for Hoffman Construction Company, later testified that Barrett was not employed by the company on the date of the robbery.
. Smerick’s examination actually involved a three-way comparison between Barrett’s clothes, the surveillance photograph, and photographs taken of an FBI agent modeling Barrett’s clothes in a posture similar to that held by the robber in the surveillance photograph.
. It is significant to note that Barrett’s requests for a continuance did not allege a need to secure a photographic expert to establish his innocence. His requests were based on the need to secure an expert to assist him in preparing for cross-examination and rebuttal of the Government’s expert. Barrett first expressed his desire for a photographic expert only after the Government had notified him of its intent to call one.
. Although the court’s error in denying the continuance impeded defense counsel’s ability to prepare for trial, it cannot be said that the error implicated the constitutional right to cross-examination. Sixth amendment rights may be violated by less than a complete denial of cross-examination, but this case does not involve a sufficient diminution of the right to come within the constitutional protection. The scope of cross-examination was not directly curtailed; defense counsel had a full opportunity to question the government’s expert witness. Counsel received the government’s report before trial. See United States v. Jordan, 466 F.2d 99 (4th Cir. 1972), cert. denied, 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973), United States v. Hernandez, 608 F.2d 741 (9th Cir. 1979). Because no constitutional rights were violated in this case, we apply the nonconstitutional harmless error standard of review.
. It is important to note that the Government did not emphasize the photographic expert’s testimony during closing argument and instead invited the jurors, with their own eyes, to compare the surveillance photographs with the clothes that were seized from Barrett by the FBI.
. We have examined the actual surveillance photographs and found them surprisingly well-focused and clear in detail. The general features of the robber’s face and body as well as the details of his clothes, such as the placement of buttons on his sweater and shirt, are discernible.
. After the robbery, Bass described the robber to the police as a white male, 55-60, about six feet tall, stout with a baker’s belly, wearing a red baseball cap, a green sweater, jeans, and a red shirt. Only the description of the shirt, which was plaid, was mistaken.
. The record does not show exactly what was said by the juror.
. Although we do not question the good faith of the trial judge, we also place some significance on the fact that the trial judge did not assert his knowledge that no juror had been asleep when the question was first raised, but only asserted this knowledge after the jury had returned a verdict of guilty.
. The record demonstrates that the trial judge believed that he had no authority to substitute an alternate for the alleged sleeping juror absent a stipulation by both parties. Because of this belief, the judge may have concluded that once the Government refused to stipulate to the substitution, any hearing or other investigation into the “sleeping”-juror question would have been meaningless. We note that if the trial judge’s decision not to conduct a hearing or investigation was based on his belief that he had no independent authority to substitute an alternate juror for a sleeping juror, the decision was based on an erroneous premise. Under Rule 24(c) of the Federal Rules of Criminal Procedure, a trial judge has the independent authority to order such a substitution. United States v. Smith, 550 F.2d 277, 285-86 (5th Cir.), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977); United States v. Cameron, 464 F.2d 333, 334-35 (3d Cir.1972).
. We have previously stated that even if the allegations of juror misconduct are found to be true, the inquiry does not end there because not every incident of juror misconduct requires a new trial. United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). The court must determine whether the resulting prejudice amounted to a deprivation of the fifth amendment due-process or sixth amendment impartial-jury guarantees. Id. Therefore, even if the juror in the present case is found to have been asleep during portions of the trial, a new trial may not be required if he did not miss essential portions of the trial and was able fairly to consider the case.
. Barrett also challenges the admission of the testimony of the Government’s photographic expert, Smerick, regarding the detailed similarities between Barrett’s seized clothing and that worn by the robber in the surveillance photograph. In discussing the denial of Barrett’s motion for continuance, we have already stated that even assuming that Smerick’s testimony was inadmissible, the admission of his testimony would be harmless error. We thus need not spend an extended period of time discussing the admissibility of Smerick’s testimony. We find that if viewed independent of the denial of the continuance, the trial court’s admission of Smerick’s testimony was entirely proper.
Barrett argues that the trial court’s admission of Smerick’s testimony violated Fed.R. Evid. 702 which provides that an expert may not testify unless his or her specialized knowledge will “assist the trier of fact to understand the evidence or determine a fact in issue.” Barrett asserts that Smerick’s testimony added nothing to the jury’s own ability to compare the seized clothing with the clothing in the surveillance photographs. Ke therefore contends that the trial court erred in finding that Smerick’s testimony would assist the trier of fact within the meaning of Rule 702.
We disagree. The trial court’s discretion to admit expert testimony under Rule 702 may not be disturbed on appeal absent clear abuse. United States v. Brown, 501 F.2d 146, 149 (9th Cir.1974), rev’d in part on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). Smerick testified to similarities between the tonal condition, style and placement of buttons, stripes, and stains found on the seized clothing and the clothing in the surveillance photographs. We cannot say that the trial court abused its discretion in finding that the testimony was sufficiently detailed to assist the trier of fact within the meaning of Rule 702. See United States v. Collins, 559 F.2d 561, 565 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977).
Barrett#-additionally argues that the trial court erred in failing to grant a mistrial when Smerick exceeded the limits imposed by the pretrial order by testifying on the ultimate issue of the identity between the clothes seized from Barrett and the clothes in the surveillance photograph. This argument is also without merit. Expert testimony on an ultimate fact is permitted under Fed.R.Evid. 704. Although the Government had voluntarily agreed that Smerick would not testify on the ultimate issue of whether the seized clothes and clothes in the surveillance photograph were identical, the trial court, in the absence of this self-imposed limitation, would not have required it. Moreover, the trial court gave the jury a curative instruction immediately after Smerick’s improper testimony was made. Under these circumstances, we find that the trial court correctly determined that Smerick’s improper testimony on the ultimate issue did not warrant a mistrial.
. Barrett also argues on appeal that Bass’ in-court identification was tainted by the Government’s reshowing her the photographic spread as well as showing her the surveillance photographs and two pictures of Barrett before he had shaved his beard and mustache. Since Barrett did not raise this argument before the trial court, we do not believe it proper for us to consider the argument on appeal. In any event, even had we considered the argument, it would not have affected our analysis of the admissibility of Bass’ in-court identification.
. The trial judge went on to say that the photographic spread was one of the best and fairest he had ever seen.
. On appeal, Barrett also argues, for the first time, that the statements should have been suppressed because they were the product of an unlawful initial detention. Because this ground for suppression was not raised before the trial court, we decline to address it on appeal. United States v. Hicks, 524 F.2d 1001, 1004 (5th Cir.1975), cert. denied, 424 U.S. 946, 96 S.Ct. 1417, 47 L.Ed.2d 353 (1976); United States v. Castanon, 453 F.2d 932, 935 (9th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972).
. At the pretrial suppression hearing, FBI agent Robert Stewart testified
Question: Did the court conclude that either the original case was frivolous or raised only trivial issues and therefore was not suitable for actions on the merits?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_trialpro | A | 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".
Bobby R. GIPSON, Petitioner, v. VETERANS ADMINISTRATION and the United States, Respondents.
No. 81-1933.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 1982.
Decided July 13, 1982.
Harry Toussaint Alexander, Washington, D. C., for petitioner.
Wayne P. Williams, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, Royce C. Lam-berth, Kenneth M. Raisler and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on the brief, for respondents.
Before EDWARDS and BORK, Circuit Judges, and DUDLEY B. BONSAL, United States Senior District Judge for the Southern District of New York.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. IV 1980).
HARRY T. EDWARDS, Circuit Judge:
In this case, we are called upon to review a decision of the Merit Systems Protection Board (“MSPB”) upholding the termination of the petitioner, Bobby R. Gipson, from his position in the Veterans Administration. For the reasons set forth below, we conclude that the MSPB proceedings were not proeedurally infirm, that the decision of the MSPB sustaining the charges against Gip-son was supported by substantial evidence, and that the MSPB correctly held that Gip-son’s discharge was not an excessive punishment or the product of improper motives. We therefore affirm the MSPB decision.
I. BACKGROUND
A. Factual Background
Most of the facts relevant to this case are uncontroverted. The petitioner, Bobby R. Gipson, was the Rehabilitation Medicine Service Coordinator at the Veterans Administration Medical Center in Washington, D.C. from October 1975 until his termination in April 1979. In this position, Gipson served as the administrative assistant to the Chief of the Rehabilitation Medicine Service (“RMS”), Dr. Herman L. Kamenetz. According to Gipson’s Position Description, his “primary responsibility [was] the supervising and coordinating of all administrative activities of the Rehabilitation Medicine Service, [and] assisting the Chief of RMS in accomplishing overall management of this service.... ” A.R. 143. Included among these responsibilities were jobs dealing with the development and implementation of policies and procedures for RMS and the coordination of patient treatment schedules with the various Section Chiefs in RMS. Thus, Gipson had considerable responsibility for and authority over the operation of the Service, which provided physical and occupational therapy for patients coming from various units within the hospital.
Gipson’s job responsibilities, however, did not include duties as a therapist or as a physician. (He lacked the necessary accred-itations for either position.) For a few months in 1978, Gipson had occasionally acted as a therapist in two of the hospital’s wards; however, after officials in the Office of the Chief of Staff learned of Gip-son’s activities in September 1978, he was specifically directed to cease any therapeutic duties. Tr. II 78.
Hospital rules governing RMS required that patients be referred to the Service by a physician, and in normal circumstances a written referral had to precede any therapy. A.R. 132. Hospital rules further required that the consultation sheets, by which referrals to RMS were made, could be requested and answered “only by residents, staff physicians, consultants or at-tendings.” A.R. 116. In addition, the consultation sheets could be signed only by the responsible physician. Id. The Employee Health Physician at the Medical Center could refer hospital employees to RMS by a similar procedure. A.R. 138.
In late 1978, Gipson was approached by Lorenzo Leak, a hospital employee suffering from osteoarthritis. Leak desired to use the RMS therapeutic swimming pool after working hours. Gipson gave Leak permission to use the pool and — so that Leak could have access to the pool after RMS closed — Gipson gave Leak keys to the Service. Another hospital employee, Joseph Lloyd, also approached Gipson about using the RMS pool in November 1978. Because Lloyd was partially disabled by cerebral palsy, Gipson gave Lloyd permission to use the pool only after arranging with Clyde Burnett, another employee, to swim with Lloyd. (Several years earlier, Burnett had held a Red Cross water safety certificate.) As he had with Leak, Gipson gave Burnett and Lloyd a set of keys to RMS so that they could use the swimming pool after hours.
At 8:10 p.m. on January 30,1979, hospital police officers found Leonard Leak in the RMS swimming pool. Mr. Leak, who was neither an employee nor a patient at the hospital, explained that he was waiting for his brother Lorenzo to meet him. The police confiscated his keys and filed a report. The next day, hospital administrators learned that Lorenzo Leak had obtained the keys from Gipson and that Gipson had also issued keys to Burnett and Lloyd.
On January 31, 1979, Dr. Kamenetz and Clyde Corsaro, the Assistant Medical Center Director, interviewed Gipson. The petitioner admitted that he had given the cited employees permission to use the pool after hours and had issued them keys to RMS for that purpose. He asserted to his superiors, however, that he had consultation sheets approving the use of the RMS pool by Lorenzo Leak and Joseph Lloyd. After this interview, Gipson prepared consultation sheets for Lorenzo Leak and Joseph Lloyd, backdated them to December 1 and 7, 1978, and then took them to Margaret Durham, a nurse to Dr. Kenmore. Nurse Durham signed Dr. Kenmore’s name on the backdated consultation sheets. Gipson then presented these backdated consultation forms to the Assistant Medical Center Director as proof of Dr. Kenmore’s approval for Leak’s and Lloyd’s use of the RMS pool.
On March 7,1979, Dr. Kamenetz proposed Gipson’s discharge from employment on the basis of five charges: (1) issuing keys to RMS to Lorenzo Leak without authority; (2) granting Lorenzo Leak permission to use the RMS pool for therapeutic purposes without professional supervision and without a physician’s orders; (3) granting Joseph Lloyd permission to use the RMS pool for therapeutic purposes without professional supervision and without a physician’s orders; (4) issuing keys to RMS to Clyde Burnett and Joseph Lloyd without authority; and (5) falsifying the consultation sheets of Lorenzo Leak and Joseph Lloyd. A. R. 36-37. By letter dated March 26, 1979, the Medical Center Director advised Gipson that the charges were upheld and that his employment would be terminated effective April 13, 1979. A.R. 35.
B. MSPB Proceedings
Gipson appealed his removal to the Merit Systems Protection Board. After Gipson’s counsel requested several continuances, the MSPB Presiding Official, Elizabeth B. Bo-gle, refused to postpone the proceedings further and decided Gipson’s appeal based on the parties’ written submissions. Presiding Official Bogle sustained each of the five charges against Gipson and his resulting removal. Gipson v. Veterans Administration, 1 M.S.P.B. 422 (1979). The MSPB vacated this decision, ruling that good cause existed for rescheduling the hearing and that the case therefore should not have been decided without an evidentiary hearing. Gipson v. Veterans Administration, 1 M.S.P.B. 420 (1980); see 5 U.S.C. § 7701(a) (Supp. IV 1980).
Subsequently, on June 18 and 19, 1980, Presiding Official Bogle conducted an evidentiary hearing. At the outset of the hearing, the Presiding Official denied Gipson’s motion that she recuse herself on grounds of bias. Based upon the parties’ written submissions and upon two days of testimony, the Presiding Official again found that the charges against Gipson were supported by a preponderance of the evidence and that his removal was warranted. In addition, the Presiding Official rejected Gipson’s claims that his discharge was the result of discrimination or in retaliation for “whistle-blowing.” Gipson v. Veterans Administration, Docket No. DC075209249 (M.S.P.B. Sept. 10, 1980); A.R. 235-39. The MSPB reviewed the Presiding Official’s decision and affirmed on all grounds. Gipson v. Veterans Administration, Docket No. DC075209249 (M.S.P.B. July 17,1981); A.R. 259-64.
Gipson has here petitioned for review of the MSPB Opinion and Order. This court has jurisdiction over this appeal pursuant to 5 U.S.C. § 7703 (Supp. IV 1980).
II. ANALYSIS
The standards for judicial review of MSPB decisions are familiar ones. Under the Civil Service Reform Act, we are required to “review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be — (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.. . . ” 5 U.S.C. § 7703(c) (Supp. IV 1980).
Gipson raises four distinct challenges to the MSPB decision. He argues that the bias of the Presiding Official denied him a fair hearing, that the MSPB decision sustaining the charges against him was not supported by substantial evidence, that the penalty of removal was clearly excessive, and that the actions of officials at the Veterans Administration were the product of improper motives. As indicated below, none of these challenges is supported by the record in this case.
A. Bias of the Presiding Official
The petitioner renews before this court his argument that Presiding Official Bogle was biased and that he was therefore deprived of his right to a fair hearing. The MSPB did not err in rejecting this argument. First, the contention that Presiding Official Bogle should have been disqualified from conducting the evidentiary hearing and deciding Gipson’s appeal because the MSPB had vacated her previous ruling against Gipson is plainly without basis. Agency officials are not disqualified from conducting a second proceeding involving a party merely because they have ruled against that party previously. NLRB v. Donnelly Garment Co., 330 U.S. 219, 236-37, 67 S.Ct. 756, 765, 91 L.Ed. 854 (1947).
Second, petitioner’s contention that the Presiding Official was somehow biased in her conduct of the hearing is wholly unsupported. Our review of the hearing transcript reveals that Presiding Official Bogle showed remarkable restraint in the face of rude and arrogant behavior by petitioner’s counsel, Mr. Alexander. The record is replete with insolent outbursts, contemptuous remarks and hubristic responses addressed to both witnesses and the Presiding Official by attorney Alexander. This conduct of counsel far exceeded the bounds of legitimate advocacy and was generally well short of the decorum expected of a member of the bar. In this context, counsel’s claim of bias on behalf of Gipson is patently specious.
B. The Charges Against Gipson
1. Unauthorized Issuance of Keys
Although petitioner frames his attack on the MSPB decision sustaining the charges against him as a challenge to the substantiality of the evidence, he nevertheless concedes the essential facts of the first and fourth charges. He admits that he gave keys to RMS to Lorenzo Leak, Joseph Lloyd and Clyde Burnett so that they might use the RMS swimming pool after hours. Petitioner claims, however, that he had been delegated carte blanche authority to issue keys to RMS and that no hospital regulations prohibited him from doing so. In support of the former claim, Gipson cites a May 20, 1976 memorandum written by Dr. Kamenetz, the Chief of RMS. The memorandum states: “The responsibility for controlling keys and the authority to originate all key requests is hereby delegated to B.R. Gipson, Administrative Assistant, RMS.” A.R. 12.
The MSPB correctly rejected these arguments. The MSPB could properly interpret the May 20, 1976 memorandum as giving Gipson less than unbridled discretion over the issuance of keys to RMS. Notably, the memorandum explicitly granted Gipson the “responsibility for controlling keys” as well as the authority to issue them. In addition, the record contains substantial evidence of security problems in and around RMS and indicates that RMS was re-keyed several times during Gipson’s tenure at the hospital because persons outside RMS had obtained keys to the Service. A.R. 13; Tr. II 33. In these circumstances, it was plainly not irrational for the MSPB to conclude, as the Veterans Administration had charged, that Gipson’s issuance of keys to persons outside the Service for their unsupervised, personal use of the RMS pool was an imprudent exercise of Gipson’s responsibility and discretion. Gipson could therefore be subject to discipline, even though his actions may have violated no specific hospital regulation.
2. Unauthorized Use of the RMS Pool
Gipson also concedes the essential facts of the second and third charges. He admits that he gave permission to Leak and Lloyd to use the RMS swimming pool for therapeutic purposes, that Leak and Lloyd had not been referred to RMS by a physician, and that their use of the pool was not supervised by a therapist. Gipson gave the employees permission to use the swimming pool even though he was aware that one physician on the hospital staff had refused to approve their use of the pool. Tr. II 73 (testimony of Gipson). In addition, Gipson gave these employees permission to use the pool only a few months after he had been directed by the Office of the Chief of Staff to cease any therapeutic duties, for which he was unlicensed. Tr. II 78 (testimony of Gipson). In defense of his actions, Gipson argued before the MSPB that no hospital regulations prohibited the therapeutic use of the pool by Lloyd and Leak, that he was motivated by humanitarian purposes, and that other employees made use of the pool for recreational purposes.
Based on the record before it, the MSPB correctly rejected Gipson’s arguments and sustained the charges of the Veterans Administration. First, while there was no specific hospital regulation concerning use of the RMS pool for therapeutic purposes, it is clear that hospital regulations did require a physician’s referral for therapy in the RMS in general. A.R. 132. Furthermore, other hospital rules required that the consultation sheets, by which referrals to RMS were made, could be signed only by physicians. A.R. 116, 138. Second, humanitarian motives provided no excuse for permitting unsupervised therapy without a physician’s approval. Finally, the MSPB could properly reject the occasional, unapproved recreational use of the pool as a viable justification for Gipson’s actions.
3. Falsification of Medical Records
The facts are somewhat less clear with regard to the fifth charge against petitioner. Gipson testified that he took consultation sheets for Leak and Lloyd to Nurse Durham in December 1978 and that Nurse Durham signed Dr. Kenmore’s name to the forms. Because Leak and Lloyd would be using the RMS pool after hours, Gipson testified that he saw no reason to route the forms through the normal RMS office procedures. These original consultation sheets for Leak and Lloyd allegedly were subsequently lost in Gipson’s office. According to Gipson, after he was confronted, on January 31,1979, by Dr. Kamenetz and Assistant Director Corsaro about Leak’s and Lloyd’s use of the pool, he took new, backdated consultation sheets to Nurse Durham. He allegedly explained to her that the forms were backdated, and she signed Dr. Kenmore’s name to them. Gipson then presented these replacement forms as proof of a physician’s approval for Leak’s and Lloyd’s use of the RMS pool. Tr. II 28-30, 70-74.
In contrast, Assistant Medical Center Director Corsaro testified that, on the morning of January 31, 1979, Gipson claimed to have a physician’s approval for Lloyd’s and Leak’s use of the RMS pool. After Gipson produced the consultation sheets later in the day, Corsaro interviewed Nurse Durham, who admitted signing the forms that day. The dates on both forms, however, were from December 1978. Tr. I 227-30. In addition, Corsaro’s unverified notes of his interview with Nurse Durham indicate that the nurse did not realize that the consultation sheets were backdated, and “she claimed she probably would not have signed the two consult sheets” had she realized that they were backdated. A.R. 43.
These versions of the events conflict in two significant respects. First, Gipson testified that he had obtained consultation sheets for Lloyd and Leak in December and that the forms signed by Nurse Durham on January 31 were only replacements for the misplaced originals. Corsaro’s testimony and notes make no mention of original consultation sheets or of Nurse Durham signing them in December. Second, Gipson testified that he informed Nurse Durham that the consultation sheets he presented to her in January were backdated. Corsaro’s notes of his interview with Nurse Durham indicate that she denied knowledge of the dates on the forms.
This court, were it required to do so, would face substantial difficulties in attempting to resolve these disparate stories. Much of Corsaro’s hearsay testimony is in direct conflict with Gipson’s sworn testimony. While admissible in the administrative proceeding, Johnson v. United States, 628 F.2d 187, 190 (D.C.Cir.1980), this hearsay might not constitute “substantial evidence te overcome the sworn testimony of a claimant,” McKee v. United States, 500 F.2d 525, 528 (Ct.Cl.1974). Additionally, the Presiding Official made no specific credibility findings regarding this testimony that would allow either the MSPB or this court to resolve the differences in the stories. We need not pause long over these problems, however, because the charge of falsifying medical records was properly sustained on the basis of Gipson’s own version of the relevant events.
Under Gipson’s version of the events, he asserted to Dr. Kamenetz and Assistant Director Corsaro that he had a physician’s approval for the therapeutic use of the RMS pool by employees Leak and Lloyd. When he was unable to locate these forms, he produced new, backdated consultation sheets, had Nurse Durham sign Dr. Kenmore’s name to them, and then presented them as the original consultation sheets. He did not explain to his superiors that these were replacements or that Nurse Durham had signed them. In fact, it appears from the record before us that Gipson never claimed to have had original consultation sheets for Lloyd and Leak until he testified to that effect in June 1980.
The MSPB could properly find that the backdating of replacement medical records and the attempt to pass off these replacements as original documents constituted falsification of medical records. Cf. 18 U.S.C. §§ 2071(b), 2073 (1976) (employee falsification of government records). The consultation sheets that Gipson produced were knowingly false, with respect to both the date and the physician’s signature, and Gipson used them in a willful attempt to deceive Dr. Kamenetz and Assistant Director Corsaro in order to protect himself. This demonstrated a disturbing lack of concern for medical records and a surprising lack of candor from a high-level hospital administrator.
C. Appropriateness of Gipson’s Removal
Gipson further argues that, even if the charges against him are sustained, the penalty of removal was unreasonable and inappropriate. A reviewing court’s function in considering the appropriate sanction for employee misconduct, however, is limited.
[Courts] will defer to the judgment of the agency as to the appropriate penalty for employee misconduct, unless its severity appears totally unwarranted in the light of such factors as the range of permissible punishment specified by statute or regulation, the disciplined party’s job level and nature, his record of past performance, the connection between his job and the improper conduct charges, and the strength of the proof that the conduct occurred.
Brewer v. United States Postal Service, 647 F.2d 1093, 1098 (Ct.Cl.1981), cert. denied, - U.S. -, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982). We will not substitute our view of the appropriate sanction or displace the agency’s judgment unless the sanction imposed is so clearly excessive as to constitute an abuse of the agency’s discretion. See Gueory v. Hampton, 510 F.2d 1222, 1225 (D.C.Cir.1974); Meehan v. Macy, 392 F.2d 822, 830 (D.C.Cir.1968), aff’d on rehearing, 425 F.2d 472 (D.C.Cir.1969) (en banc).
We note first that Gipson’s removal was within the range of penalties specified in the relevant agency regulations. See Veterans Administration Personnel Policy Manual, MP-5, Part I, Ch. 752, App. C (Aug. 2, 1971), reprinted in A.R. 109-13. The “Table of Examples of Offenses and Penalties” describes the appropriate penalties for Gipson’s offenses as ranging from reprimand to removal. In addition, the Manual notes that “[w]hen an employee has committed a combination or series of offenses, a greater penalty than is listed for a single offense is appropriate.” A.R. 109.
Nor can we say that Gipson’s removal was so clearly excessive as to constitute an abuse of discretion by the Veterans Administration. Gipson held an administrative position of considerable importance and responsibility. Among his duties were the promulgation and implementation of rules and regulations governing RMS. The Veterans Administration had a right to expect that the individual holding this position would abide by the hospital regulations, especially those for which he was primarily responsible. Cf. Brewer v. United States Postal Service, 647 F.2d 1093, 1098 (Ct.Cl.1981) (Postal Service had right to expect a higher standard of conduct from Superintendent of Postal Operations), cert. denied, - U.S. -, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982). In addition, the falsification of government records is a serious offense in any context. See, e.g., id. (false entries on employee time cards); Rotolo v. MSPB, 636 F.2d 6 (1st Cir. 1980) (understatement of taxable income by IRS clerical employee); Rodriguez v. Seamans, 463 F.2d 837 (D.C.Cir.) (false answers to allegedly unconstitutional questions on employment forms), cert. dismissed, 409 U.S. 1094, 93 S.Ct. 704, 34 L.Ed.2d 678 (1972). The knowing falsification of medical records in a hospital is certainly no less serious. The Veterans Administration could reasonably be concerned about the possible effect of falsified medical forms on patient care. The agency could also conclude that Gipson’s falsification would have “a significant effect on his reputation for honesty and integrity and thereby a significant effect upon the efficiency of the” Service. Yacovone v. Bolger, 645 F.2d 1028, 1032 (D.C.Cir.), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981); see 5 U.S.C. § 7513(a) (Supp. IV 1980). We therefore decline to set aside the judgment of the Veterans Administration, which the MSPB approved, that Gipson should be removed from his position based on the charges against him.
D.' Retaliatory Motives for the Agency Action
Finally, Gipson claims that the action of the Veterans Administration was improperly motivated. He asserts that the charges and his subsequent removal were in retaliation for his efforts to assist Black hospital employees receive promotions and pay increases and for his disclosure of information and records to an Inspector General who was investigating property losses at the hospital. If either of these claims of prohibited personnel practices, 5 U.S.C. § 2302(b)(1), (8) (Supp. IV 1980), were proven, the MSPB could not lawfully sustain Gipson’s removal, id. § 7701(c)(2)(B).
The Presiding Official “assign[ed] little credibility” to Gipson’s assertion of a retaliatory motivation for his removal. She found his demeanor while testifying on this subject unconvincing, and Gipson presented no independent evidence in support of his allegations. The Presiding Official also noted that Gipson failed to establish a causal connection between his efforts on behalf of Black employees or his cooperation with the Inspector General and his removal. Gipson v. Veterans Administration, Docket No. DC075209249, slip op. at 2-3, 4 (M.S.P.B. Sept. 10, 1980); A.R. 236-37, 238. We therefore find that the Presiding Official’s decision, which was subsequently affirmed by the MSPB, was fully justified by the record.
III. CONCLUSION
For the foregoing reasons, we decline to set aside the decision of the Merit Systems Protection Board. We conclude that the Presiding Official was not biased against Gipson, that the decision of the MSPB sustaining the charges of the Veterans Administration was supported by substantial evidence, that the penalty of removal was not inappropriate, and that the MSPB properly rejected Gipson’s claim that the charges against him were in retaliation for protected activities. We therefore deny the petition for review and affirm the decision of the MSPB.
So ordered.
. “A.R.” refers to the volume of documents in the certified administrative record compiled during the petitioner’s appeal to the Merit Systems Protection Board.
. “Tr. I” and “Tr. II” refer to the transcripts of the evidentiary hearing conducted by the MSPB Presiding Official on June 18, 1980 and June 19, 1980, respectively.
. These Medical Center regulations were consistent with the requirements of the Joint Commission on Accreditation of Hospitals (“JCAH”). The JCAH required, inter alia, that rehabilitation services be prescribed by a physician; that a current, written plan be maintained for each patient receiving rehabilitative services; and that physical therapy be administered by a qualified physical therapist. Joint Committee on Accreditation of Hospitals, Accreditation Manual for Hospitals 155, 156, 158 (1979), reprinted in A.R. 125, 126, 128. The Accreditation Manual for Hospitals also limited the therapeutic responsibilities of administrative personnel:
When administrative direction is not the responsibility of a physician, it shall be provided by another qualified individual who is responsible to the chief executive officer [of the rehabilitative program/service]. The assignment of a nonphysician as administrative head of the program/service does not imply that nonphysicians have been given authority to perform medical procedures without medical supervision, to assume professional responsibilities of physicians, or to practice of [sic] medicine.
Id. at 154, A.R. 124.
. The RMS swimming pool was termed “therapeutic” because it was heated to approximately ninety degrees Fahrenheit. As far as the record reveals, this is the principal difference between it and an ordinary swimming pool.
. Petitioner did not claim to have consultation sheets for Clyde Burnett or Leonard Leak.
. Dr. Kenmore was a staff physician at the Medical Center.
. Beyond these facts, some dispute exists about the consultation sheets. Gipson claims that they were replacements for forms on which Nurse Durham previously had signed Dr. Kenmore’s name in December 1978. Tr. II 28-30. Assistant Director Corsaro’s notes of his interview with Nurse Durham, on the other hand, make no mention of her signing consultation sheets for Leak and Lloyd in December: according to the interview notes, Nurse Durham only admitted signing Dr. Kenmore’s name for Gipson on January 31, 1979. A.R. 43. Corsa-ro’s notes also indicate that Dr. Kenmore “disclaimed any knowledge” of signing consultation sheets for Lloyd or Leak. A.R. 46. Neither Dr. Kenmore nor Nurse Durham testified in the MSPB proceedings. See Part II-B-3 infra.
. The MSPB also ruled that the Presiding Official had failed to address the allegation of discrimination that Gipson raised in his appeal.
. Gipson was able to point to a few occasions on which the RMS pool was used for recreational purposes by some hospital employees. With the exception of the use of the pool by the hospital’s police force for physical fitness purposes, these recreational uses apparently lacked official approval. Some evidence was introduced that this unauthorized use was quashed after its discovery by hospital officials. In any event, the MSPB could properly conclude that this unapproved recreational use did not constitute a practice which, even if firmly established, would justify Gipson giving Lloyd and Leak permission to use the RMS pool for unsupervised, unauthorized therapy.
. Corsaro’s notes of his January 31 interview of Nurse Durham are entitled to even less weight than that afforded to hearsay testimony. The notes not only represent what was asserted by another person, but are also unverified by the author. While the notes were admissible in the MSPB proceedings, they were entitled to little probative value to the extent that they were in conflict with direct testimony presented before the Presiding Official. See generally Hoska v. United States Dep't of Army, 677 F.2d 131, 138-39 (D.C.Cir.1982).
. Indeed, this is what we understand the MSPB to have done in deciding the case against petitioner. In his petition to the MSPB, Gipson argued that “nothing on the [consúltation] sheets was 'false’ except that they were back dated” and that “this was insufficient evidence to substantiate this charge [of falsification of medical records].” A.R. 244. The MSPB was therefore plainly apprised of Gip-son’s version of the events when it stated that “appellant admits the factual basis underlying the agency charges.” Gipson v. Veterans Admin., Docket No. DC075209249, slip op. at 4 (M.S.P.B. July 17, 1981); A.R. 262.
. In fact, Gipson never received approval from Dr. Kenmore. According to Gipson’s own testimony, Nurse Durham signed the consultation sheets for Leak and Lloyd in December, and Gipson never discussed their referral with Dr. Kenmore. Tr. II 29.
. The Veterans Administration asserted that two offenses in this Table encompassed Gipson’s conduct or were analogous to it: “26. Intentional falsification, misstatement, or concealment of material fact in connection with employment or any investigation, inquiry or other proper proceeding; or willfully forgoing [sic] or falsifying official Government records or documents;” and “27. Loss of, damage to, or unauthorized use of Government property, . .. b. Through maliciousness or intent.” A.R. III. The recommended penalties for a first commission of either of these offenses range from a minimum of a reprimand to a maximum of removal. Id.
. In each of these cases, the reviewing court upheld the employee’s dismissal.
. Gipson argues that the MSPB failed to consider all of the mitigating factors enumerated in Douglas v. Veterans Admin., Docket No. AT075299006 (M.S.P.B. Apr. 10, 1981). Although the MSPB did not list each of the potentially mitigating factors from Douglas that was arguably relevant to Gipson’s penalty, we do not believe that the MSPB thereby erred. The MSPB cited its ruling in Douglas in this case and indicated that it had considered the potentially mitigating factors in accordance with that opinion. Gipson v. Veterans Admin., Docket No. DC075209249, slip op. at 4-5 (M.S.P.B. July 17, 1981); A.R. 262-63. Thus, the MSPB adequately disclosed its reasoning process and did not “cross[] the line from the tolerably terse to the intolerably mute.” WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C.Cir.1969).
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_adminrev | O | 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".
OREGON NATURAL RESOURCES COUNCIL, Oregon Guides and Packers Assn., Inc., Rogue Flyfishers, Inc., and Rogue River Guides Assn., Plaintiffs-Appellants, v. John O. MARSH, Jr., in his Official Capacity as Secretary of the United States Department of the Army, and Elvin R. Heiberg, III, in his Official Capacity as Chief of Engineers of the United States Department of the Army, DefendantsAppellees.
No. 86-3670.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 8, 1986.
Decided June 23, 1987.
Neil S. Kagan, Portland, Or., for plaintiffs-appellants.
Dorothy R. Burakreis, Grants Pass, Or., Laura Frossard, Washington, D.C., for defendants-appellees.
James H. Boldt, Grants Pass, Or., for amicus curiae Josephine County.
Before WALLACE, FERGUSON and NORRIS, Circuit Judges.
FERGUSON, Circuit Judge:
Plaintiffs, the Oregon Natural Resources Council, Oregon Guides and Packers Association, Rogue Flyfishers, Inc., and Rogue River Guides Association (“Resources Council”), appeal the denial of an injunction to stop construction by the United States Army Corps of Engineers (“Corps”) of a dam on Elk Creek in Southern Oregon, 628 F.Supp. 1557. The Resources Council contends that the Corps’ final supplemental environmental impact statement (“EIS”) for the dam project fails to comply with the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 853 (1970) (codified at 42 U.S.C. § 4332) (“NEPA”). We affirm in part and reverse in part.
I.
Elk Creek is a tributary of Oregon’s Rogue River. The Rogue was one of eight rivers in the nation designated as “wild and scenic” in the Wild and Scenic Rivers Act of 1968, Pub.L. No. 90-542, 82 Stat. 906 (1968) (codified at 16 U.S.C. § 1271). The Rogue is known nationally for its white-water rafting and fly-fishing.
In 1962, Congress authorized construction of three dams to control flooding of the Rogue River Basin: Elk Creek Dam, Applegate River Dam, and Lost Creek Dam. The latter two dams are completed. The Elk Creek project consists of a proposed concrete dam 249 feet high and 2,580 feet long. The reservoir behind the proposed dam would collect runoff from most of Elk Creek’s watershed and cover 1,290 acres of land.
In 1971, the Corps filed a final EIS for the Elk Creek Project. In 1975, after studying the projected effects of the dam on turbidity in the Rogue River, the Corps filed a draft supplemental EIS. Construction of the project was suspended until completion of further water quality studies.
In 1980, the Corps filed a revised draft supplemental EIS, which included turbidity and temperature projections based on the Corps’ observations of turbidity caused by the Lost Creek Dam during the year 1977 and the Corps’ computer simulation models. Several state and federal agencies criticized the Corps’ turbidity analysis on the ground that rain runoff levels during 1977 were the lowest on record in the area. The Corps placed these critical comments, and its responses to them, in a separate section, and released the aggregate as its final supplemental EIS.
The Resources Council then brought this action in federal district court for a temporary restraining order, a preliminary injunction, and a permanent injunction to stop construction of Elk Creek Dam. The Resources Council argued that the final supplemental EIS failed in several ways to comport with the requirements of the NEPA and regulatory guidelines of the Council on Environmental Quality. The Resources Council also contended that the Corps was required to prepare a new supplemental EIS because of new information. The district court found the final supplemental EIS adequate and denied the requested relief. The Corps has since awarded contracts for relocation of roads and utilities and for construction of the dam.
II.
The Resources Council contends that the final supplemental EIS violates the NEPA procedural standards and the Council on Environmental Quality guidelines in six respects. The district court held that the environmental impact statement comported with these standards. We review de novo the district court’s determination of whether the EIS is reasonably thorough in discussing the significant aspects of the probable environmental impact of the proposed agency action. Enos v. Marsh, 769 F.2d 1363, 1372 (9th Cir.1985) (applying a “rule of reason”). Purely factual findings are, of course, reviewed for clear error. Id.
We thus endeavor to determine whether the final supplemental EIS satisfies the two purposes of an EIS: (1) to provide decisionmakers with enough information to aid in the substantive decision whether to proceed with the project in light of its environmental consequence; and (2) to provide the public with information and an opportunity to participate in gathering information. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1056 (9th Cir.1985); California v. Block, 690 F.2d 753, 761 (9th Cir.1982) (the “form, content and preparation [of the EIS] foster both informed decisionmaking and informed public participation”); 40 C.F.R. § 1502.1 (purpose of EIS is to “provide full and fair discussion of significant environmental impacts and ... [to] inform the decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts
First, the Resources Council contends that the final supplemental EIS is deficient because it fails to discuss adequately ways to mitigate adverse environmental impacts of the project. Specifically, the Resources Council claims that the mitigation plan for wildlife contains neither a detailed analysis of mitigation measures nor an explanation of how effective those measures would be. We agree, and reverse for further proceedings on this issue.
An EIS must include a discussion of measures to mitigate adverse environmental impacts of the proposed action. 40 C.F.R. § 1502.16(h). As long as significant measures are undertaken to mitigate the project’s effects, the measures need not compensate completely for adverse environmental impacts. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985). The mere listing of mitigation measures, however, is insufficient to satisfy the NEPA requirements. Northwest Indian Cemetery Protective Ass’n v. Peterson, 795 F.2d 688, 697 (9th Cir.1986). Moreover, the EIS must analyze the mitigation measures in detail and explain the effectiveness of the measures. See id.
Here, the mitigation plan for wildlife is not yet fully developed. The mitigation plan, published in 1980, states: “Measures to compensate project-caused loss of wildlife habitat associated with reservoir construction will be developed, based upon the results of the wildlife compensation plan currently underway at Applegate Project and recommendations of Oregon Department of Fish and Wildlife and the U.S. Fish and Wildlife Service.” No mitigation plan had been finalized as of January 1986. We fail to see how mitigation measures can be properly analyzed and their effectiveness explained when they have yet to be developed.
Moreover, the mitigation measures set forth in the final supplemental EIS are inadequate to satisfy the Council on Environmental Quality guidelines. The mitigation plan for wildlife, in its entirety, states:
The compensation [for project-caused loss of wildlife habitat] would be accomplished by managing selected lands to increase the quality of habitat and therefore its carrying capacity for wildlife. The management would consist of a number of habitat manipulative techniques in conjunction with other land uses, landscaping at the project, and development of recreation sites. Specific habitat development measures would be oriented toward development of palatable browse plants, creation of “edge,” maximizing foliage height diversity in certain areas, and creation of snags in the reservoir. This compensation plan will be developed in coordination with Federal and state resource agencies.
This plan lists general measures to mitigate the impact of the project on wildlife. The plan refers to “habitat manipulative techniques,” but fails to specify which techniques will be used. It also fails to identify any of the “specific habitat development measures” that would be utilized to develop palatable browse plants, create “edge,” maximize foliage height diversity, or create snags in the reservoir. More important, there is no analysis of the mitigation measures listed, or any estimation of how effective the measures will be.
The importance of the mitigation plan cannot be overestimated. It is a determinative factor in evaluating the adequacy of an environmental impact statement. Without a complete mitigation plan, the decisionmaker is unable to make an informed judgment as to the environmental impact of the project — one of the main purposes of an environmental impact statement. See Citizens for a Better Henderson, 768 F.2d at 1056.
Because the wildlife mitigation plan here merely lists measures to be used and includes neither an analysis nor an explanation of effectiveness, it is inadequate to satisfy the NEPA or Counsel on Environmental Quality mitigation guidelines. See Northwest Indian Cemetery Protective Ass’n, 795 F.2d at 697.
III.
The Resources Council also contends that the Corps violated the NEPA by failing to prepare a new supplemental EIS taking into account new information acquired since the 1980 EIS. We agree, and remand for further proceedings on this issue as well.
A federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions after release of an EIS. Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1463 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). The agency must supplement the EIS if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.-9(c)(1)(ii); see Enos, 769 F.2d at 1373. When new information comes to light, the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing requirements. Stop H-3 Ass’n, 740 F.2d at 1463-64.
We will uphold an agency’s decision not to supplement an environmental impact statement in light of new information if the decision is reasonable. Enos, 769 F.2d at 1373.
Reasonableness depends on the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data.
Stop H-3 Ass’n, 740 F.2d at 1464 (citation omitted). Applying the Stop H-3 Ass’n standard, we conclude that subsequent to the preparation of the final supplemental EIS, significant new information came to light. We further conclude, based upon the proceedings in the district court, that this information is probably accurate. The Corps failed to exercise the proper degree of care in evaluating the impact of the new information and failed to properly support its decision not to supplement the EIS with an explanation or additional data. Thus, a new supplemental EIS should have been prepared.
Two studies provided significant new information regarding the environmental impact of the project. The Oregon Department of Fish and Wildlife concluded that the project could result in decreased survivability of chinook salmon, higher turbidity, increased disease potential in fish, and decreased prospects for lure- and fly-fishing. The United States Soil Conservation Service found a greater turbidity potential than indicated by the final supplemental EIS. These studies contained the significant new information contemplated by Stop H-3 Ass’n.
The final draft of the Fish and Wildlife Department study, dated August 5, 1985, was based on the impact of Lost Creek Dam on salmon and steelhead populations downstream. Department scientists observed decreased survival of chinook salmon, and speculated that it was a result of increased water temperatures caused by the release of warmer water from the Lost Creek Reservoir. Based on Lost Creek Dam’s impact on survivability, the Department believed that conditions from Elk Creek Dam also would affect negatively chinook salmon survivability. Department scientists concluded that, even though their study was not conclusive, this phenomenon should be studied further before Elk Creek Dam is built.
With regard to higher turbidity, information was based on a study of logging and road-building activity in the Elk Creek watershed since 1980. The logging and road-building has caused soil disturbance. Fish and Wildlife Department scientists believe that this activity will result in higher turbidity than that reported in the final supplemental EIS. Consequently, they suggest additional studies on turbidity potential before the dam is built.
As to disease potential in fish, Fish and Wildlife Department statistics indicate that in 1979, following the construction of Lost Creek Dam, there was a 76% mortality rate in fall chinook salmon populations due to disease and a 32% mortality rate in 1980. Although there has been almost no mortality since 1981, Department scientists concluded there may be a connection between dam closure and the potential for increased disease among fish.
Finally, the Fish and Wildlife Department was concerned about higher flows in the Rogue River that could decrease the effectiveness of lure- and fly-fishing along the river, including the wild and scenic portion. The Department wanted to conduct studies to evaluate this concern, but the Corps reduced the Department’s budget, making further study impossible. The Corps evaluated the Department study and concluded that the new information was not significant enough to warrant a new supplemental EIS.
The Soil Conservation Service soil study also revealed significant new turbidity information tending to corroborate the Department study. The Soil Conservation Service study indicates that the Elk Creek watershed has substantially greater turbidity potential than previously reported in the EIS. Uncontradicted testimony showed that the soil content in the watershed is different than indicated in the final supplemental EIS. The Corps conducted no studies after receiving this new information because it had investigated erosion potential in 1979 and found nothing to substantiate the Department’s concerns over the soil study. Thus, the Corps concluded that no significant new information had been discovered.
The district court found that the Corps’ decision not to release a new supplemental EIS was reasonable. Like the district court, we review the agency’s decision for reasonableness. See Enos, 769 F.2d at 1373. We conclude otherwise. The Department presented new information as a result of its study of Lost Creek Dam’s impact on the river. Although the evidence is not conclusive, it presented a legitimate concern about decreased survivability of fish and the potential for higher turbidity based on information from the two studies that was not available at the time the final supplemental EIS was published. The evidence clearly is environmentally significant under the Stop H-3 Ass’n test.
The information must be more than environmentally significant. It must be “probably accurate” as well. Stop H-3 Ass’n, 740 F.2d at 1464. Based on our review of the experts’ testimony and data, we believe that, at the very least, some of the proffered information is probably accurate. Although the Corps had two independent experts evaluate the Fish and Wildlife Department’s study, and these experts were critical of many of the conclusions reached, the experts also agreed with significant portions of the study. The Corps did not dispute that there was increased logging and road-building activity in the Elk Creek watershed since 1980. The Fish and Wildlife Department is concerned that this activity will result in increased turbidity.
The Corps also did not respond to the study’s conclusions concerning increased fish mortality from epizootic diseases. The information admittedly was not conclusive. Yet, the study raised legitimate concerns regarding the relationship between dam construction and epizootic diseases. The Corps should have considered the information, evaluated its impact and, at the very minimum, supported its decision not to supplement with a statement of explanation or additional data. Id. The Corps does not appear to have exercised the proper degree of care regarding the new information. The Corps also has not supported its decision with a statement of explanation or additional data.
The testimony below also reveals that the information provided by the Soil Conservation Service was never considered by the Corps, even when the Corps issued its Supplemental Information Report in September 1985. In response to questions submitted by the Council of Environmental Quality (CEQ) in 1981, the Corps stated that soils in the Elk Creek Watershed erode more easily than those in the Lost Creek Watershed and therefore produce a higher volume of suspended material per unit of stream runoff and require a longer time to settle out. The Corps concluded that this factor was considered in the modeling effort. Later, in response to commentary (identified as “Letter 14,” attached to the final supplemental EIS) submitted in response to the draft EIS, the Corps stated that morphological factors cannot be incorporated into the WESTEX model but are qualitatively included in the overall analysis of the potential turbidity of the watershed.
However, when presented with evidence showing that the soil content in the Elk Creek watershed was different from that indicated in the final supplemental EIS, the Corps chose not to respond. Table Four of the final supplemental EIS indicates that erosion potentials differ with soil associations. Further, the EIS states that turbidity is “generally caused by soil particles in the water column which are washed downstream in the runoff from the watershed.” Soil type and turbidity may not be directly related, as the Corps contends. Yet, the data reveals that soil type is related to erosion potential which, in turn, affects turbidity. The Corps took this into account earlier in its analysis and should do so again using the new information. Even if this data cannot be included in the WES-TEX model, the Corps should include it qualitatively in its “overall analysis” of turbidity.
These are significant matters, the accuracy of which is not disputed. The Corps did not address adequately these issues. Thus, applying the final two factors of Stop H-3 Ass’n, we conclude that the Corps must prepare a supplemental EIS to address these issues.
IV.
The Resources Council also contends that the Corps was required by the CEQ “worst case” regulation to research further the effects of Elk Creek Damon turbidity in the Rogue River during high, average, and normal-low rainwater runoff years.
The worst case analysis regulation, 40 C.F.R. § 1502.22, requires that when there are gaps in relevant information or scientific uncertainty with regard to significant adverse environmental effects, the agency must make it clear that the information is lacking or that uncertainty exists. If information is lacking that is essential to a reasoned choice and the cost of obtaining it is not exorbitant, the agency must obtain the information and include it in the statement or include a worst case analysis.
The Oregon Department of Fish and Wildlife formally criticized the Corps’ conclusion that Elk Creek Dam would have little effect on temperature and turbidity on the Rogue. The state agency specifically disagreed with the Corps’ finding that Elk Creek would make only a small contribution to total flow in the Rogue River and commented that there may be periods when Elk Creek provides a significant percentage of the total flow of the Rogue. The Corps, in responding to the state agency’s comment (identified as “Letter 6,” attached to the final supplemental EIS), acknowledged that Elk Creek could contribute up to 25% of the flow in the Rogue during high flow periods. Thus, the Corps’ assessment of turbidity due to Elk Creek Dam is subject to uncertainty. This uncertainty is disclosed in the final supplemental EIS.
The district court concluded that the Corps complied with the worst case analysis requirement because the final supplemental EIS included comments that exposed uncertainty, if uncertainty did in fact exist. Yet, exposing uncertainty is not enough. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 n. 5 (9th Cir.1984), requires that the Corps include a worst case analysis in the EIS when there are gaps in the information engendering scientific uncertainty which the agency determines to be important and when the necessary information cannot be obtained because of scientific impossibility or because the costs of obtaining it would be exorbitant. See also Oregon Environmental Council v. Kunzman, 817 F.2d 484, 495 (9th Cir.1987). The Corps did not include a worst case analysis and did not conduct any further research with regard to the water flow contribution from Elk Creek. The Corps should pursue one of these alternatives.
Additionally, since the Corps is now required to consider new information brought forth by the two studies, the Corps should take this information into account in its decision concerning a worst case analysis. If uncertainty remains at that time, the Corps should prepare a worst case analysis or conduct further research with regard to the new information.
Y.
The Resources Council further contends that the Corps unreasonably limited the scope of the final supplemental EIS by failing to consider the cumulative effects of all three dam projects, Lost Creek Dam, Applegate Dam, and Elk Creek Dam, the first two of which already have been completed. The Resources Council contends that the Corps should address the cumulative effects of the dams in a single EIS because the three components of the Rogue River Basin Project are connected.
The “cumulative impact” regulation requires the Corps to evaluate “the incremental impact of the action when added to other past, present, and reasonably foreseeable actions.” 40 C.F.R. § 1508.7. Although the CEQ guidelines require that “cumulative actions” be considered together in a single EIS, 40 C.F.R. § 1508.25(a)(2), and “cumulative actions” consist only of “proposed actions,” this does not negate the requirement of 40 C.F.R. § 1508.7 that the Corps consider cumulative impacts of the proposed actions which supplement or aggravate the impacts of past, present, and reasonably foreseeable actions.
The district court correctly ruled that a separate EIS was not required for the entire project. Only proposed actions must be discussed in a separate EIS. 40 C.F.R. § 1508.25(a)(2). The court also concluded that the final supplemental EIS adequately described and analyzed the impacts in terms of the effects of the entire project. The court was convinced that the Corps took a hard look at the cumulative impacts in the EIS.
We disagree with the district court that the Corps took a hard look at the cumulative environmental impacts. Plaintiffs point out two examples of the Corps’ failure to consider the cumulative impacts. First, although the final supplemental EIS conceded that the overall basin project would increase the turbidity of the Rogue River, it concluded that there would be no major adverse effect on fish production from increased turbidity. In reaching this conclusion, however, it considered only the turbidity created by the individual project. Similarly, in response to a comment made by the United States Environmental Protection Agency suggesting that the EIS should discuss the effects of Lost Creek Dam on downstream water quality, the Corps responded that the Elk Creek EIS was not the proper place to discuss the effects of Lost Creek Lake. Insofar as the effects of the Lost Creek Dam were necessary to a complete presentation of the cumulative impact of construction of Elk Creek Dam, we disagree.
The synergistic impact of the project should be taken into account at some stage, and certainly before the last dam is completed. In Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Court specifically noted that “an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals.” Id. at 415 n. 26, 96 S.Ct. at 2732 n. 26.
While a separate EIS is not required, the Corps should consider the impact of Elk Creek Dam in conjunction with Lost Creek Dam and, if appropriate, Apple-gate River Dam. The Corps is building Elk Creek Dam in an area that already has two dams. It must consider the area as it finds it and take into consideration the cumulative impact of the basin project.
VI.
We affirm the district court’s rulings on the Resources Council’s remaining three challenges. First, the Resources Council contends that the final supplemental EIS gave no meaningful response to comments critical of the Corps’ draft supplemental EIS, because these comments were not integrated into the body of the final supplemental EIS. The Resources Council relies on a CEQ regulation that requires discussion “at appropriate points in the final [EIS of] any responsible opposing view.” 40 C.F.R. § 1502.9(b). The Resources Council argues that the only “appropriate points” in an EIS for discussion of opposing views are in the body.
We first note that section 1502.9(b) does not define “appropriate points.” We must therefore examine that guideline and the Corps’ final supplemental EIS in light of the purposes of an environmental impact statement of providing complete information to the decisionmaker and the public.
We find that an agency may place responsible opposing views in a separate “comments and responses” section when, as here, many of the critical comments prompted revisions in the body, the Corps discussed in the body all of the environmental problems to which the comments were addressed, and the Corps provided thoughtful and well-reasoned responses to most of the critical comments. We therefore hold that the Corps sufficiently complied with the purposes of the NEPA in its treatment of opposing views, even if the most “appropriate points” for addressing those views would be in the body.
Second, the Resources Council contends that the final supplemental EIS is inadequate because it fails to discuss, as required by 40 C.F.R. § 1502.16(c), possible conflicts between the proposed action and other federal policy objectives for the affected area. Specifically, the Resources Council argues that the agency failed to analyze the effect of the dam on the wild and scenic portion of the Rogue River, located fifty-seven miles downstream. An EIS need contain only a reasonably thorough discussion of the significant aspects of the probable environmental consequences of a proposed action. Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974).
In this case, the United States Forest Service commented that the final supplemental EIS should address the effect of the project on the wild and scenic portion of the river. The Corps responded that, based on its conclusion that the impact on the immediate downstream portion of the river would be insignificant, the impact on the wild and scenic portion fifty-seven miles downstream also would be insignificant. The agency assumed that the reservoirs’ impacts diminish with distance.
Applying this court’s “rule of reason,” see Enos, 769 F.2d at 1372, the agency logically concluded that the impact from the project on the wild and scenic portion of the river would be insignificant. Assuming the agency reaches the same conclusion concerning the immediate downstream portion of the river after it takes into consideration the new information, its decision concerning the wild and scenic portion of the river will stand.
Third, the Resources Council contends that the final supplemental EIS is defective because the Corps placed a cost-benefit analysis of the Elk Creek Project using a 2>lk% discount rate in the body, but relegated an analysis based on a more realistic 7½% rate to an appendix. The Resources Council argues that the placement of these analyses misled the decisionmaker as to the economic value of the project.
An EIS is not required to contain a formal, mathematically expressed cost-benefit analysis. California v. Block, 690 F.2d at 764. Nevertheless, if such an analysis is included, it should not be misleading. See Johnston v. Davis, 698 F.2d 1088, 1094 (10th Cir.1983).
We find that the Corps’ use of a 3V4% discount rate or its placement of the 7V2% cost-benefit analysis in an appendix was not misleading. The Water Resources Development Act of 1974, Pub.L. No. 93-251, § 80, 88 Stat. 34 (1974) (codified at 42 U.S.C. § 1962d-17(b)), required use of the 31/4% discount rate. Johnston, 698 F.2d at 1092-95. The Corps’ inclusion of the analysis based on the more realistic comported with CEQ guidelines. See 40 C.F.R. § 1502.23 (cost-benefit analysis “shall be incorporated by reference or appended to the statement”). Moreover, although the purposes of an EIS might have been better served if the 3V4% analysis in the body had made reference to the 7 ¥2% analysis in the appendix, the inclusion of the latter analysis sufficiently cured whatever misleading effects resulted from use of the 3V4 percent rate. Cf Enos, 769 F.2d at 1375 n. 14.
VII.
We conclude that the Corps’ mitigation report is inadequate, and that the Corps should file a new supplemental EIS because of new information obtained. The Corps also must prepare a worst case analysis or conduct further research with regard to the waterflow contribution from Elk Creek. The Corps also should conduct a worst case analysis based on the new information submitted in the two studies, if necessary. Finally, although the Corps need not prepare a separate statement addressing the cumulative impact of the dams, it should supplement the statement and address the cumulative impact of Lost Creek and Elk Creek Dams and, if appropriate, Applegate River Dam. We therefore remand to the district court for entry of appropriate injunctive relief in accordance with this opinion. Attorneys fees and costs are awarded to plaintiffs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
. "Turbidity" is defined in the glossary to the final supplemental EIS as "an expression of the optical property of water which causes light to be scattered and absorbed rather than transmitted through in straight lines. Turbidity is caused by the presence of suspended matter." Simply stated, turbidity is murkiness due to stirred-up sediment.
. The plaintiffs are several nonprofit organizations representing their members who assert injury by the dam’s construction. The plaintiffs therefore have standing under the rule in Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972).
. We note, however, that the factors set forth in Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1464 (9th Cir.1984), cert. denied. 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985), to determine reasonableness are neither mandatory nor exclusive. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir.1980), upon which Stop H-3 Ass’n relies, specifically states that ‘jVjeasonableness depends on such factors as____" Id. at 1024 (emphasis added).
. The district court noted that the Corps is still reviewing the concerns expressed in the final Department study. Because the Corps has yet to complete its review of the new information, it is too early to conclude that the new information is not significant.
. An epizootic disease is a disease that affects many members of a population at the same time. See Webster’s Third New International Dictionary 766 (1976).
. The WESTEX model is a mathematical model developed by the Corps’ Waterways Experiment Station in Vicksburg, Mississippi, and the University of Texas. The Corps used this model to analyze potential turbidity problems from Elk Creek Dam.
. We note that the United States Fish and Wildlife Service also recommended a new supplemental EIS because there may no longer be a need for the water storage assumed necessary in the final supplemental EIS.
. We reject the argument of the Corps that section 1502.22 is inapplicable due to its rescission on May 27, 1986. The worst case regulation is a codification of prior NEPA case law. See Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 (9th Cir.1984). Thus, the rules embodied in the regulation remain in effect even though the regulation was rescinded.
. The parties disagree as to the appropriate standard of review for this issue. The Resources Council contends that the decision to limit the scope of an EIS is akin to a decision not to prepare a statement at all. Therefore, under Foundation for N. Am. Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1177 (9th Cir.1982), we would review the decision to determine its reasonableness. Appellees contend that this court should review the decision to determine whether it is arbitrary and capricious. Neither contention is correct. As stated previously, this court reviews the district court’s conclusion to determine whether it is based on an erroneous legal standard or on clearly erroneous findings of fact. See Northwest Indian Cemetery Protective Ass’n, 795 F.2d at 696.
. As originally drafted, section 1502.9(b) read: "In the final statement the agency shall discuss at appropriate points in the text the existence of any responsible opposing view____” 43 Fed. Reg. 25,237 (1978). Because the deletion of the words "in the text” was not accompanied by an explanation, see 43 Fed.Reg. 55,995 (1978), it is unclear whether the CEQ intended the change to affect the meaning of "appropriate points.”
. Moreover, to the extent that the critical responses of the state and federal agencies were merely "substantive comments," rather than "responsible opposing views," the Corps was not required to discuss the comments in the text. See 40 C.F.R. § 1503.4(b).
. The Resources Council contends that the agency’s assumption violates 40 C.F.R. § 1502.-24, which requires agencies to identify any methodologies used and to make explicit reference by footnote to the scientific and other sources relied on for conclusions in the statement. We disagree. The regulation is satisfied here because the Corps identified the methodologies used and sources relied on for its conclusions concerning the immediate downstream portion of the stream. This was sufficient to support its decision concerning the wild and scenic portion of the river.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer: |
songer_applfrom | A | 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).
ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Corporation, Appellant, v. TENNEFOS CONSTRUCTION CO., Inc., a Corporation, Appellee.
No. 19020.
United States Court of Appeals Eighth Circuit.
June 28, 1968.
Rehearing Denied Aug. 14, 1968.
Ellsworth E. Evans, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for appellant; Robert C. Heege, of the same firm, Sioux Falls, S. D., and Wattam, Vogel, Vogel, Bright & Peterson, Fargo, N. D., were on the briefs with Ellsworth E. Evans.
Norman G. Tenneson, of Tenneson, Serkland, Lundberg & Erickson, Fargo, N. D., for appellee; Harold A. Dronen, of the same firm, Fargo, N. D., was on the brief with Norman G. Tenneson.
Before MEHAFFY, GIBSON, and HEANEY, Circuit Judges.
GIBSON, Circuit Judge.
The main issue presented in this case and on this appeal concerns the coverage afforded by a contract bond issued to a member of a joint venture indemnifying that member against all loss sustained by reason of the other member’s failure to comply with any of the terms of the joint venture agreement. The District Court for North Dakota held that the bond covered the loss in question and entered judgment for $147,591.22 and costs against the appellant and defendant below, St. Paul Fire & Marine Insurance Company. Diversity jurisdiction was established. A timely appeal was filed. We affirm.
The facts are lengthy but for the most part are stipulated or are not in dispute.
On May 21, 1955 Tennefos Construction Co., Inc. (Tennefos) and Ed Cox & Son, a partnership, (Cox) submitted a joint proposal to the South Dakota Highway Commission for the construction and improvement of United States Highway No. 16, in Lyman County, South Dakota. In' anticipation of formalizing the contract with the State Highway Commission, Tennefos and Cox executed a joint venture agreement on June 4, 1955, which provided for a division of the work between them and the compensation to be paid Cox for its part of the project. Under this agreement Cox was to provide the labor and material necessary to construct the sand and gravel sub-base of the road project and was to “furnish a satisfactory contract bond in the penal sum of $199,334.25 payable to the second party (Tennefos) as obligee similar in form to the contract bond required by the South Dakota State Highway Commission from the parties hereto, and pay the premium therefor.” In line with Cox’s bond obligation under the joint venture agreement it, as principal, and the St. Paul Fire & Marine Insurance Company (St. Paul), as surety, executed a contract bond under date of June 14, 1955 agreeing to indemnify the obligee Tennefos for “all loss” that Tennefos might sustain by reason of Cox’s failure to comply with any of the terms of the joint venture agreement. The bond was called a “contract bond” and was on a regular form prepared and supplied by St. Paul.
The formal contract between the State Highway Commission and Tennefos and Cox, as contractors was dated August 25, 1955, and provided that “The said Contractor further agrees to pay all just claims for materials, supplies, food, tools, appliances, and labor, and all other just claims incurred by him * * * and further agrees that the contract bond shall be held to cover all such claims.”
In accordance with the requirements of the highway contract Tennefos and Cox, as principals, and United Pacific Insurance Company (United Pacific), as surety, on August 31, 1955 furnished a performance bond running to the State of South Dakota as obligee in the sum of $408,671.84. As part of the consideration and as an inducement for United Pacific’s execution of the performance bond Tennefos agreed to indemnify United Pacific.
Cox was short of capital and in order to carry out its obligations under the joint venture agreement Cox borrowed money from the Farmers State Bank of Flandreau, South Dakota (Bank). On March 23, 1956 St. Paul notified Tennefos that “* * * there are numerous unpaid bills on the part of Ed Cox and Son for work and materials furnished” and requested that “* * * no further funds on this job be released to Ed Cox and Son, in order that our position under the captioned bond, in which you are obligee, should not be prejudiced in any way.”
St. Paul then under date of April 3, 1956 wrote to the Bank requesting the Bank to exercise certain control over future advances made to Cox on this project. Although the record is not clear, apparently Cox owed the Bank at the time this letter was written a considerable amount for monies advanced on this project. The Bank agreed to these controls and continued to finance Cox. On July 11, 1956 and again on August 23, 1956 St. Paul authorized Tennefos to pay over to the Bank, funds which Tennefos had received from the State for work done by Cox.
St. Paul also made payments in excess of $20,000 for labor, materials and equipment rental so that Cox could comply with the terms and conditions of the joint venture agreement.
After Cox had completed its part of the work under the joint venture agreement there remained unpaid and outstanding $108,492.92 in bank loans that had been obtained and used by Cox in carrying out the project. This amount apparently all had been incurred prior to St. Paul’s letter of April 3, 1956 to the Bank, though there is considerable doubt on this point. The Bank commenced an action in the South Dakota state court against Tennefos and Cox as principals, on the bond furnished to the State, and United Pacific as surety, seeking to recover the amount of the unpaid bank loans. Defense of this action was tendered to St. Paul but it was declined. Tennefos recognized its obligation as an indemnitor of United Pacific and assumed the defense of this state action. Tennefos raised the issue of coverage, much the same as St. Paul, but judgment was entered against Cox and Tennefos and United Pacific for $108,492.42 plus costs. Tennefos then tendered the appeal to St. Paul but this also was declined. The judgment was affirmed by the Supreme Court of South Dakota in State for Use of Farmers State Bank v. Ed Cox and Son, 132 N.W.2d 282 (S.D. 1965). Tennefos paid the judgment and then commenced this action against St. Paul to recover the amount paid, together with costs incurred in defending and appealing the state action.
The District Court heard the case without a jury and granted judgment for Tennefos in the amount of $147,591.-92 based on an estoppel theory. The trial court’s ultimate determination was:
“After having induced the Bank to continue financing Cox and prevailing upon Tennefos to transmit progress payments to the Bank to apply on the loans, in the view of this Court St. Paul Fire is estopped from denying that the loans were outside the coverage afforded under the terms of its indemnity bond.”
We think the trial court reached a correct result but that an estoppel would not apply to the bank funds advanced before St. Paul became involved with the bank advances and in authorizing the Bank’s advances, as indicated by its letter of April 3, 1956. It is impossible for us to tell on the record or by a reading of the state case what funds were advanced before April 3, 1956 and what funds were advanced after that date; or whether the original $108,000 comprising the basis of the Bank’s state court suit represented advanees made by the Bank prior to April 3, 1956, or after April 3, 1956 or both. To the extent that the judgment includes funds advanced by the Bank after St. Paul authorized the bank advancements by its letter of April 3, 1956, we think an estoppel theory would be applicable but that an estoppel could not be applied prior to the time that St. Paul by its acts authorized and induced the Bank to make the advances. The evidence would indicate this approximate date would be April 3, 1956, though there might have been some oral preliminary authorization shortly prior to that date. We, however, feel that this matter is not crucial, as “A successful party in the District Court may sustain its judgment on any ground that finds support in the record.” Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957); Crossett Lumber Co. v. United States, 87 F.2d 930, 109 A.L.R. 1348 (8 Cir. 1937), and we think the contract bond as written-covers Tennefos’s loss.
St. Paul contends that its contract bond only covers Cox’s obligations under the joint venture agreement; that the agreement specifies in detail the obligations which Cox agreed to assume and that these obligations have been fully met; that the payment of money borrowed by its principal Cox is not within the contemplation of the joint venture agreement nor the bond; and further that no estoppel is warranted under the facts of this case. At the outset it should be noted that the case of United States for the Use of First Continental National Bank & Trust Co., Lincoln, Neb. v. Western Contracting Corporation, 341 F.2d 383, 387 (8 Cir. 1965) holding:
“ Tt is the generally accepted view that one who loans or advances money to another for the purpose of meeting a payroll and paying for supplies cannot sue a surety who has guaranteed payment to those furnishing labor and material.’ ”
and other cases similarly holding that loans or advances of money to a contractor to pay for labor or material are not protected by a performance bond are not in point in this case, as the performance bond required by the South Dakota Highway Commission covered, in addition to the usual labor and material claims, all other just claims and was, as properly held by the South Dakota Supreme Court, much broader in coverage than the usual type of performance bond.
Cox and Tennefos began their joint venture by making a successful bid for the road construction project. They proceeded to execute the feasible and necessary documents to carry out the construction project. The instruments which they deemed feasible and necessary to accomplish their purpose were:
1. The joint venture agreement between themselves outlining the sphere of work to be performed by each and defining in detail Cox’s obligation to Tennefos;
2. An indemnity agreement executed by Cox as principal and St. Paul as surety running to Tennefos as obligee;
3. The contract between the State Highway Commission and the joint venturers covering the road construction project;
4. The performance bond required by the State contract and executed by the joint venturers as principals and United Pacific as surety.
These various agreements and the recitals contained in them refer to a single transaction and were necessarily an integral part of the construction project.
The joint venture agreement refers to the bond, which Cox agreed to furnish Tennefos as “similar in form to the contract bond required by the South Dakota Highway Commission” of Tennefos and Cox. The joint venture agreement also outlines the scope of work to be performed by each of the joint venturers and states their individual responsibility for their share of the work, on which they were jointly obligated to perform for the State. The law presumes that a surety knows the contents of its principal’s contracts. Hartford Accident & Indemnity Company v. United States, 127 F.Supp. 565, 567, 130 Ct. Cl. 490 (1955); United States v. Tyler, 220 F.Supp. 386 (Iowa 1963).
A contract of indemnity, which is issued by a compensated surety “* * * is to be regarded as in the nature of an insurance contract governed by the rules applicable to insurance contracts * * Massachusetts Bonding & Insurance Co. v. Feutz, 182 F.2d 752 (8 Cir. 1950). The bond issued by a compensated surety is related to and must be read and interpreted in connection with the other documents which make up the whole transaction:
“* * * where a bond and another contract or instrument relate to and form one and the same transaction, or the bond refers to such other instrument or is conditioned for the performance of specific agreements set forth therein, such instrument with all its stipulations, limitations or restrictions becomes a part of the bond, and the two should be read together and construed as a whole.” 9 Apple-man, Insurance Law and Practice 70, § 5276.
We recognized and applied this principle in Home Indemnity Company v. F. H. Donovan Painting Co., 325 F.2d 870, 874 (8 Cir. 1963) ;
“It is a fundamental rule of construction that where the contract which is the subject of the performance bond is referred to in the latter, that the contract is to be regarded as a part of the undertaking of the surety under the bond.” (Citations omitted).
The joint venture agreement, which is admittedly covered by St. Paul’s contract bond, specifically refers to and is related to the contract with the State Highway Commission. Absent the contract with the State Highway Commission there would be no need for the joint venture agreement or St. Paul’s bond. These agreements should be read together as they represent successive steps which were taken to accomplish a single purpose. The courts have long recognized that a contract may consist of more than one instrument.
“A contract may be contained in several instruments. These if made at the same time, in relation to the same subject-matter, may be read together as one instrument, and the recitals in one may be explained or limited by reference to the other. This rule obtains even when the parties are not the same, if the several contracts were known to all the parties and were delivered at the same time to accomplish an agreed purpose.” Peterson v. Miller Rubber Co. of New York, 24 F.2d 59, 62 (8 Cir. 1928) — -cited with approval in 182 F.2d 752 (8 Cir. 1950).
And in Kurz v. United States, 156 F. Supp. 99, 104 (N.Y.1957), aff’d 254 F.2d 811 (2 Cir. 1958), the Court recognized the principle: “* * * [W]here several instruments, executed contemporaneously or at different times, pertain to the same transaction, they will be read together, even though they do not expressly refer to each other.” (Citations omitted). Further recognition of this principle is noted and discussed in Doherty Research Co. v. Vickers Petroleum Co., 80 F.2d 809 (10 Cir. 1936); Williston on Contracts, 3d Ed., § 628. 17A C.J.S. Contracts § 298, p. 128, expresses this construction rule, thusly:
“* * * as a general rule, * * * where several instruments of writings are made as part of one transaction, they will be read, or construed, together, and each will be construed with reference to the other. This is true even though the instruments involved do not in terms refer to one another
Similar comments on the problem of construction and interpretation of a contract consisting of more than one document is found in 3 Corbin on Contracts, pp. 188-192, § 549:
“In many cases * * * the terms of agreement may be expressed in two or more separate documents, * * *
In every such case, these documents should be interpreted together, each one assisting in determining the meaning intended to be expressed by the others.
“This is true whether the documents are all executed by a single party or by two or more parties, and whether some of the documents are executed by parties who have no part in executing the others. A transaction may be tri-partite or even more complex, a factor that must not be disregarded in the process of interpretation of any of the documents.
“Internal references to one document to another are often helpful in the processes of interpretation and adjudication; but the absence of such a reference does not make a document unusable in these processes or inadmissible in evidence. Its connection and relevancy can be established otherwise.”
The condition of St. Paul’s indemnity bond is for payment of all loss sustained by Tennefos. It was issued by St. Paul to protect Tennefos against any failure of Cox in fulfilling its obligations under the joint venture agreement, which necessarily covers Cox’s performance in carrying out its share of the South Dakota Highway contract.
The performance bond issued by United Pacific covering the construction project of the joint venturers was much broader than the usual performance bond, which ordinarily covers only claims for labor and material. This bond specifically covered “all just claims for materials, supplies * * * labor, and all other just claims incurred by him or any of his subcontractors in carrying out the provisions of this contract.” And was specifically held by the South Dakota Supreme Court in State for Use of Farmers State Bank v. Ed Cox and Son, supra, to include bank loans advanced on this particular project; and expressly held at 287 of 132 N.W.2d:
“* * * the obligation assumed under the bond is determined by construing it together with the contract, and when so viewed it is extremely broad. Also emphasized is the principle that the bond should be construed most strongly in favor of indemnity.”
St. Paul expresses surprise at the holding of the State Supreme Court in the Ed Cox and Son case but an examination of an earlier South Dakota case, J. F. Anderson Lumber Co. v. National Surety Co., 49 S.D. 235, 207 N.W. 53 (1926) would show a similar holding on an identical provision of “and all other just claims.” The Court in Anderson reasoned at 57:
“The appellant surety voluntarily undertook an obligation so broad in its terms that it would be difficult to define the extremities of its scope as applied to various possibilities. No case has been cited to us by counsel for either party to this appeal, where the obligation of the surety is shown to be as broad. [And the obligation of appellant’s surety] * * * includes, not only ‘labor’ and ‘material,’ but ‘supplies,’ tools, appliances, * * * and all other just claims incurred by him * * * in carrying out the provisions of the contract.”
By virtue of the joint venture agreement, Cox as principal and St. Paul as surety were obligated to furnish a bond similar in form to the bond required by the South Dakota Highway Commission and furnished by United Pacific. Similar in form would clearly indicate that at least as broad a coverage must be furnished by Cox and St. Paul as was required by the State and furnished by United Pacific. In other words, the construction contract and the performance bond given in connection therewith were a joint undertaking of Cox and Tennefos and in the contemplation of the parties any bond furnished pursuant to the joint venture agreement must afford protection to the obligee equal to the obligation of Cox and Tennefos to the State of South Dakota. This is a diversity case wherein the law of South Dakota applies and that State’s interpretation of its law is binding on all of the parties. The contract bond furnished by St. Paul by its terms is clearly capable of being interpreted as covering the loss in question. St. Paul was obligated to furnish a bond as broad as that furnished by United Pacific and under which the loss in question was established as an ultimate liability against Tennefos. St. Paul should now not be heard to say that its bond afforded less coverage than it was obligated to afford under the joint venture agreement.
In summary, we think the four instruments must be read together as they form the basis for a single transaction. In construing these instruments we think the coverage of the St. Paul bond must be at least equally as broad as Cox and Tennefos furnished the State. The St. Paul bond would also cover Tennefos’s loss sustained by reason of Cox’s failure to pay “all just claims.” The money loaned to Cox by the Bank was determined to be a just claim by the South Dakota Supreme Court in State for Use of Farmers State Bank v. Ed Cox and Son, supra. This judgment was paid to the Bank by Tennefos thus causing him a loss which is directly attributable to Cox’s failure to perform its obligation under the joint venture agreement. Since St. Paul’s bond agrees to indemnify Tennefos against all loss sustained by Cox’s failure to comply with the terms of the joint venture agreement, the loss suffered by Tennefos and occasioned by Cox clearly comes within the terms of St. Paul’s bond.
Judgment affirmed.
“11. Furnish a satisfactory contract bond in the penal sum of $199,334.25 payable to the second party (Tennefos) as obligee similar in form to the contract bond required by the South Dakota State Highway Commission from the parties hereto, and pay the premium therefor.” (Emphasis supplied).
. The parties will be referred to as listed below or by their abbreviated name designation. Ed Cox & Son, a partnership, will be referred to as an entity.
. The pertinent clause reads:
“Now, Therefore, the condition of the foregoing obligation is such that if the Principal shall indemnify the Obligee for all loss that the Obligee may sustain by reason of the Principal’s failure to comply with any of the terms of said contract, then this obligation shall be void; otherwise it shall remain in force.”
. The pertinent part of Tennefos’s indemnity agreement contained in the application for contract or bid bond reads as follows:
“To indemnify, and keep indemnified, the Company, against all loss, costs, damages, expenses and attorneys’ fees whatever, and any and all liability therefor, sustained or incurred by the Company by reason of executing or procuring the execution of any said bond or bonds, * * * or sustained or incurred by reason of making any investigation on account thereof, prosecuting or defending any action brought in connection therewith, * * *. Payment of any such amounts to the Company shall be made by the undersigned as soon as the Company shall be liable therefor, whether or not it shall have paid out any portion thereof.”
. The pertinent part of the letter reads:
“To resume operations on this project, it would appear that Ed Cox & Son will need some financing to meet payrolls and material bills, and equipment rentals during the interim etween the receipt of periodic progress payments from the State.
“Should you undertake to finance Ed Cox & Son’s continued operations on this project until final completion thereof, under arrangements whereby you exercise control over advances made by you so that such advances are used only to cover payrolls, supplies and material bills, and equipment rentals incurred in connection with this job, we shall have no objection to your being reimbursed for such advances out of the monthly progress payments.
“However, inasmuch as labor and material suppliers have an equitable lien on the proceeds of the contract we must ask that you agree that no part of Ed Cox & Son’s present indebtedness to you will be paid out of progress payments hereafter received until the job is finally completed, and all labor and material bills incurred on it have been paid. So far as that present indebtedness is concerned you will look only to any excess funds remaining after all labor and material bills are paid on this job, and to any other asset of Ed Cox and Son.
“ * * * * * *
“Signed
“St. Paul-Mercury Indemnity Co.”
. The record indicates that the Bank made further advances to Cox after the letter of April 3, 1956 and that the Bank was reimbursed for those advances by Tennefos upon instruction to do so by St. Paul.
Plaintiff’s exhibit No. 10 is a letter dated August 23, 1956 in which St. Paul authorizes payment of $42,721.39 to the Bank for the account of Cox for “!! * * current estimate for work done.” Also in a telegram of apparent date of July 11, 1956, St. Paul authorizes Tennefos to release to the Bank all proceeds Tennefos was then holding arising out of the first estimate of work performed on the project.
The State trial court also made factual findings, (VI), indicating that after crediting all payments to the Bank made both prior and subsequent to March 1956, there remained owing to the Bank sums in excess of some $149,000.
. The District Court judgment may, therefore, be affirmed by this Court on a legal theory different than the theory announced by the District Court if we think the judgment was correct based on the record before us. Barunica v. United Hatters, Cap and Millinery Workers, Local Number 55, 321 F.2d 764, 765-766 (8 Cir. 1963) ; State Mutual Life Assur. Co. of Worchester, Mass. v. Fleischer, 186 F.2d 358, 364 (8 Cir. 1951).
. That agreement in part reads:
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_procedur | B | 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.
BOAZE v. WINDRIDGE & HANDY, Inc.
No. 7177.
United States Court of Appeals for the District of Columbia.
Argued Jan. 17, 18, 1939.
Decided Jan. 30, 1939.
Alvin L. Newmyer and David G. Bress, both of Washington, D. C., for appellant.
Norman B. Frost and Frank H. Myers, both of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
GRONER, C. J.
Tljis appeal is from a judgment for appellee entered on a verdict directed by the court. The action below was brought by Annie V. Boaze, as administratrix of the estate of her husband, to- recover damages for his death resulting f-rom a collision with a motorcycle operated by appel-lee’s agent on M Street in the City of Washington. Appellee’s plea admitted the collision and the death of appellant’s husband therefrom, but alleged that its agent was not negligent in any of the particulars charged in the declaration, and that deceased’s own negligence was the cause of the injury and death.
The single question we have to decide is whether the evidence, construed most favorably to plaintiff, was sufficient to warrant a finding by the jury that defendant was negligent as charged in the declaration. If so, the motion for binding instructions should have been denied. Improvement Company v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867. On such a motion, in order to determine whether there is evidence upon which a jury can properly find a verdict, the court must assume that the evidence proves all that it reasonably may be found sufficient to establish. If fair minded men may honestly draw different conclusions as to the existence or nonexistence of the negligence charged, the question is not one of law but of fact to be settled by the jury. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720.
The evidence introduced by the plaintiff shows that on the afternoon of June 19, 1934, deceased drove his car in an easterly direction on M Street, N. W., between 25th and 26th Streets and parked it adjacent to the south curb, headed in an easterly direction; that he got out of his car and started to walk across M Street to the north side; and that when he had got to a point about 6 or 7 feet from the north curb, he was struck by a motorcycle operated by defendant’s agent, Charles Rind. The eye witnesses to the collision were the injured and the operator of the motorcycle. The former died the following day. The driver did not testify. Of the witnesses who testified, two — Brenner and Otis — saw the deceased as he hit the ground immediately after the collision. Another — Mrs. Williams — saw him as he lay in the street just before he was removed to the hospital.
Brenner testified he was standing in an office door on the north side of M Street, nearly opposite the point of collision; that he saw deceased leave his car and take a step and did not see him again until he heard an exclamation from Otis, to whom he was talking at the time, as the result of which he looked and saw the deceased fall to the ground; that at that moment the motorcycle was on the north side of the street headed east and 6 to 7 feet from the curb; that he ran out into the street and when he reached the place of accident, deceased lay with his head a few feet from the north curb and with his body and feet in a southerly direction.
Otis testified that he did not see the impact but did see deceased’s head hit the ground. He placed the point of the accident as slightly on the north side of the center of the street,, stating that as the body lay on the ground injured’s feet were near the center line of the street and the head toward the north side.
Mrs. Williams, who saw the body before it was removed, testified it was near the center but more on the north half of the street. She said that after the accident she saw the driver of the motorcycle drive around and come back to the scene but did not know how far he went before turning around.
M Street runs east and west; and at the point where the accident occurred its width is a few inches less than 40 feet from curb to curb. The evidence showed that the driver of the motorcycle had shortly before the accident brought an automobile, with the motorcycle attached to its rear, to an “automobile laundry" on the north side of M Street some 40 or 50 feet west from the point of the accident; that the' automobile was brought to the “laundry” to be washed, and the motorcycle to convey the driver back to defendant’s place of business; that the automobile was driven to the rear of the lot fronting on the north side of M Street; and that the driveway from the rear which defendant’s agent would use in returning was, at the point of intersection with the street, approximately 38 feet from the place of accident. At the time of the collision there were no parked cars on the north side of the street, but there were cars parked against the curb on the south side, and there was also a milk truck with a tall body parked double on that side just to the west of deceased’s automobile. In these circumstances we think that, when deceased undertook to walk from the south to the north side of the street, especially in view of the presence of parked automobiles on the near sidé, it was his duty to look in the directions from which danger might be expected and that, if he failed to do so and his negligence in this respect was the sole proximate cause of the injury, there could be no recovery.
If, therefore, the evidence had shown that the collision occurred as deceased emerged from behind a parked car and when the view of the driver of the motorcycle was obscured, so that he could not see the deceased as he walked into his pathway, we should have to affirm the judgment of the court below. But that is not this case, for here the evidence, together with the inference that justifiably may be drawn from it, tends to show that the' collision occurred after deceased had fully cleared the parked automobiles and passed the center line of the street to a point within 6 or 7 feet of the north curb, a part of the roadway over which, in the circumstances, it was an act of negligence to drive a vehicle in an easterly direction.
In addition to this, the evidence at least tends to show that, on the side of the roadway on which the motorcycle was being driven, there was nothing to obstruct the view of the driver and that he could and should have seen deceased and realized his peril in time to avoid the accident. If this is true, the driver of the motorcycle was guilty of negligence for which a recovery could be had, notwithstanding deceased himself might have been guilty of contributory negligence in failing to look. Chunn v. City & Suburban Railway, 207 U.S. 302, 309, 28 S.Ct. 63, 52 L.Ed. 219; Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380; Goodyear Service v. Pretzfelder, 65 App.D.C. 389, 84 F.2d 242; Terminal Taxicab Co. v. Blum, 54 App.D.C. 357, 298 F. 679.
Enough, we think, has been said to show that in our opinion the trial court was in error in taking the case from the jury.
Reversed and remanded for a new trial.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_usc1 | 0 | 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.
UNITED STATES of America, Appellee, v. Fred BULL, Jr., Appellant.
No. 77-1315.
United States Court of Appeals, Fourth Circuit.
Argued Aug. 10, 1977.
Decided Nov. 23, 1977.
Brian K. Miller, Richmond, Va., for appellant.
Alexandra E. Divine, Third-Year Law Student (William B. Cummings, U. S. Atty., Alexandria, Va., and David A. Schneider, Asst. U. S. Atty., Richmond, Va., on brief) for appellee.
Before RUSSELL, WIDENER and HALL, Circuit Judges.
PER CURIAM:
The appellant was found guilty by a jury of possession of a firearm in violation of App., § 1202(a)(1), 18 U.S.C. He has appealed, alleging that the court erred in finding that the “stop and frisk” conducted by the police officer, during which the firearm was discovered, was reasonable or proper and in failing to suppress evidence of the discovery of the weapon. We affirm.
The critical issue is whether the “stop and frisk” of the defendant, which resulted in the discovery of the concealed weapon and the subsequent arrest, was a “stop and frisk” or an actual arrest and, whether if a “stop and frisk” it was reasonable under the circumstances. This is so because, if the “stop and frisk” was valid, the confiscation of the weapon on which the prosecution rested, was necessarily valid since it was abandoned by the defendant in open view of the accosting officer.
The officer involved testified that his initial accosting of the defendant was a “stop and frisk” and not an arrest. All the circumstances, save the one cited by the defendant, support this testimony of the officer. The oné circumstance on which the defendant relies for his contention that the action of the officer constituted an arrest was the use of his gun when he accosted the defendant. This fact, standing alone, however, is not sufficient to constitute the action of the officer as an arrest; it is but one circumstance, along with all the others surrounding the incident, to be weighed in determining the character of the officer’s action. Considering all the circumstances, as the district judge did, the conclusion that the action of the officer in stopping the defendant was not an arrest is amply supported in the record.
Accepting the finding that the action of the officer was a “stop and frisk,” the next issue is whether the “stop and frisk” was proper, i. e., did the officer have a reasonable and “founded” suspicion that criminal activity might be afoot. If he had such a “founded” suspicion, he had a right to stop the defendant in order to question him, and, in connection with that questioning, to conduct a limited search for weapons provided the officer reasonably feared that the one to be questioned might be armed. Terry v. Ohio (1968) 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889; Adams v. Williams (1972) 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612. Among the circumstances to be considered in connection with this issue are the “characteristics of the area” where the stop occurs, the time of the stop, whether late at night or not, as well as any suspicious conduct of the person accosted such as an obvious attempt to avoid officers or any nervous conduct on the discovery of their presence. See United States v. Brignoni-Ponce (1975) 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607. In evaluating or assessing such circumstances — particularly the conduct of the suspect the officer is entitled to draw upon his own experience as an officer. Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. 1868. This is so because “[c]onduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.” Davis v. United States (1969) 133 U.S.App.D.C. 172, 174, 409 F.2d 458, 460, cert. denied 395 U.S. 949, 89 S.Ct. 2031, 23 L.Ed.2d 469. United States v. Purry (1976) 178 U.S.App.D.C. 139, 142, 545 F.2d 217, 220.
In this case, the officer had long been engaged in investigating night-time burglaries in shopping areas such as that involved here. While he was traveling in an unmarked car, the car was one well known in the community to be of the type used by plain-clothes detectives, such as the officer in this case. The time was late and most of the stores in the area had long since been closed. The defendant and his companion were the only ones observable in the area where they were seen by the officer, and there was no vehicular traffic. They seemed to be wandering aimlessly about the area, looking the area over. When they saw the officer approaching, they turned their backs and bent over as if they were tying their shoes, in an apparent effort to avoid having their faces observed by the officer. When the officer passed, he looked in his rear-view mirror and observed that the defendant and his companion promptly looked up in order to observe carefully where the officer went.
Because of the suspicious conduct of the defendant and his companion, the officer proceeded beyond the sight of the defendant, stopped his ear, got out and hid behind some bushes to observe the defendant and his companion as they proceeded in his direction. When the defendant and his companion drew near, the officer stopped the two of them, and at this point, he noticed that they had on hats from beneath which protruded panty hose, and with companion officers whom he had called to the scene for assistance, he instructed them to turn around for frisking preparatory to questioning them. His determination to frisk them was prompted, he explained, by the fact that one of the parties had on a jacket on a warm night under which he feared a weapon might be concealed. At this point, he observed the defendant remove a firearm from his belt, drop it to the ground and kick it under the police car, in plain view of the officer. The officer later seized the weapon which the defendant had dropped and the arrest of the defendant followed. We are satisfied that, under the circumstances there was probable cause for the “stop and frisk.” Since the “stop and frisk” was reasonable, the seizure of the weapon, abandoned by the defendant in plain view of the accosting officer, in turn was proper. Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067. See, United States v. McLaughlin (9th Cir. 1975) 525 F.2d 517, 519, cert. denied 427 U.S. 904, 96 S.Ct. 3190, 49 L.Ed.2d 1198; United States v. Maryland (5th Cir. 1973) 479 F.2d 566, 568; Robinson v. Parratt (D.Neb.1976) 421 F.Supp. 664, 668-69, aff’d., 8th Cir., 546 F.2d 764.
The judgment of the district court is accordingly
AFFIRMED.
. United States v. Worthington (5th Cir. 1977) 544 F.2d 1275, 1280, n. 3, U.S. appeal pending; United States v. Maslanka (5th Cir. 1974) 501 F.2d 208, 213, n. 10, cert. denied 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (“[t]o require an officer to risk his life in order to make an investigatory stop would run contrary to the intent of Terry v. Ohio * * *.”); United States v. Russell (9th Cir. 1976) 546 F.2d 839, 841 (Wright, J., concurring); United States v. Richards (9th Cir. 1974) 500 F.2d 1025, 1028, cert. denied 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393.
. See, United States v. Magda (2d Cir. 1976) 547 F.2d 756, 758: “The Terry Court found that the governmental interest in crime prevention and detection would permit a police officer in appropriate circumstances to ‘approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ ”
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_geniss | G | 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".
UNITED STATES of America, Appellee, v. Russell W. BARRETT, et al., Appellants.
No. 15090.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 2, 1971.
Decided May 5, 1971.
William Bruce Hoff, Parkersburg, W. Va. (William W. Gracey, Parkersburg, W. Va., on brief) for appellants.
Ronald R. Glancz, Atty., Dept, of Justice, (L. Patrick Gray, III, Asst. Atty. Gen., and Robert V. Zener, Atty., Dept, of Justice, and Paul C. Camilletti, U. S. Atty., on brief) for appellee.
Before BRYAN and BUTZNER, Circuit Judges, and MILLER, District Judge.
ALBERT V. BRYAN, Circuit Judge:
Under the United States Housing Act of 1937, as amended, 42 U.S.C. § 1401 et seq., the Parkersburg (West Virginia) Housing Authority entered into the requisite contracts to secure the aid of the United States in the construction of a low-rent housing project. This suit was brought in Federal court by the United States to confirm the exercise of the prerogative it reserved in the contracts, to take over completion of the project whenever the right of the Authority to enter into the agreements is questioned.
Such a challenge to the legal status of the Authority was issued in a State court action initiated by Russell W. Barrett, et al., residents of the City of Park-ersburg. The charges levelled were that the Authority had no cognizable existence, either de jure or de facto, and therefore the project contracts were invalid. A judicial declaration to that effect and an injunction against construction of the project were sought in a West Virginia Circuit Court. Suit was then instituted in Federal court by the United States to enjoin prosecution of the State court action.
The District Court upheld the Government’s position — that it legally undertook completion of the project after the Authority’s contracting powers had been assailed in the State suit. The State court plaintiffs were enjoined by the District Court from maintaining their action on the grounds that the pending litigation severely hampered obtaining private capital for the Federal project. On the appeal from this decision, we affirm.
The scheme of the Act was closely followed by the City of Parkersburg. First, it signed a Cooperation Agreement on January 2, 1968 with the Authority, in which the latter covenanted to open negotiations with the Government for loans and annual contributions for building 300 low-rent housing units. In this instrument the City also promised to extend certain privileges necessary for the operation of the project. The undertaking was part of the Government’s “turnkey” program. It is best described in the Government regulations, 24 CFR 1520.6(b), as follows:
“Under the ‘turnkey’ technique, a private developer or builder, who has a site or an option, or can obtain one, can approach the Local Authority with a proposal to build [low-rent housing] in accordance with plans and specifications prepared by his own architect and the usual commercial standards of quality and workmanship. If the proposal is acceptable, they will then enter into a contract under which the Local Authority agrees to purchase the completed property. This contract is backed by [Government] financial assistance commitment to the Local Authority, thereby enabling the developer to secure commercial construction financing in his usual manner. * * * ”
Next, a local contractor, Theodore Mor-lang, was selected as the project developer, and approved by the Government. He entered into a sales and purchase contract with the Authority.
Section 9 of the Act, 42 U.S.C. § 1409, authorizes the Government to “make loans to public-housing agencies to assist the development, acquisition, or administration of low-rent-housing or slum-clearance projects by such agencies”. Provision is made in Section 10(a), 42 U.S.C. § 1410(a), for “Annual Contributions” by the Government to public housing agencies to allow consummation of the project undertaking. On June 19, 1968 the Authority executed with the Government an Annual Contributions Contract.
Section 22(a), 42 U.S.C. § 1421a(a), allows the Government to assume the title to a project in the event of a “substantial default” by the Authority. Inclusion of the following provision in an Annual Contributions Contract — and here it was included — is permitted:
“upon the occurrence of a substantial default in respect to the covenants or conditions to which the public housing agency is subject (as such substantial default shall be defined in such contract), the public housing agency shall be obligated at the option of the * * * [Government], either to convey title in any case where, in the determination of the * * * [Government] (which determination shall be final and conclusive), such conveyance of title is necessary to achieve the purposes of this chapter, or to deliver possession to the * * * [Government] of the project, as then constituted, to which such contract relates: * * *” 42 U.S.C. § 1421a(a) (1). Substantial default was defined in the
instant contract as follows :
“ * * * if the power or right of the Local Authority to * * * enter into the Contract of Sale is drawn into question in any legal proceedings, * * * the occurrence of any such event, if the seller is not in default, shall constitute a Substantial Default
* * *
and, in such case, the Government will continue the undertaking of the Project and will take delivery of such right, title or interest in the Project as the Local Authority may have and perform such * * * Contract of Sale * * *. The provisions of this paragraph are made with, and for the benefit of, the seller and his assignees who will have been specifically approved by the Government prior to such assignment.”
In this contract and in the contract of sale between the developer, Theodore Morlang, and the Authority, the latter represented that it was a duly and legally organized body corporate and politic, and empowered to execute the agreement. The contract of sale stipulated that a breach of the warranty would be deemed a substantial default under the sales contract and also under the Annual Contributions Contract. Such a default would occur, according to the sales contract, “if the power or right of the Purchaser [the Authority] to enter into this Agreement is thrown into question in any legal proceeding”.
As the institution of the action in the State court on July 19, 1968 questioned the power and right of the Authority to contract with the Government, the latter declared the Authority in default pursuant to the terms of the contracts. The Authority was then required to assign its interest in the contract of sale to the Government. The assignment was executed on December 6, 1968. Morlang, the project developer, was asked to accept the Government as his obligor in the stead of the Authority. This he did by attornment on December 20, 1968. The consequences were that the Government thereupon became bound to support completion of the housing project and to purchase it from Morlang thereafter.
The contention of the appellants is that the power of the Government to take over the project was dependent upon the validity of its contracts with the Authority. If they were not valid, then the Government had no right to require transfer of the project pursuant to the substantial default provisions. The thrust of the accusation is that the Authority was illegally established and therefore incapable of executing a binding contract.
Plaintiffs point to the creation in 1937 of an Authority under a 1933 Act of the West Virginia legislature, W.Va.Code of 1937 § 1409(58). This statute authorized a municipality to create an Authority, as was done in Parkersburg. The provisions of the 1933 Act, we are told, were superseded by an Act passed in 1941, which is still in effect. W.Va.Code § 1409(58). The later Act, it is said, recognized the original Authority, continued it in being indefinitely beyond 1941 and countenanced only one Authority in a city. From this the appellants argue that the Authority now contracting with the Government, which was named in April 1967, has no legal existence. Plaintiffs, therefore, conclude that only the original Authority created in 1937 could contract with the Government, and that the present or second Authority is wholly impotent, inasmuch as there was no legislative provision for two Authorities.
The answer to this contention is readily summarized. The municipal council of Parkersburg purported to act in April 1967 under the 1933 West Virginia statute in setting up the present Authority. The 1941 statute vested in the State legislature the power to create an Authority, limiting the municipality to the appointment of members, but it expressly preserved the existence of any Authority established under the 1933 law. We construe the action of the municipal council in April 1967 as not creating an additional Authority, but rather reactivating the original. That this was the council’s intention is confirmed by the fact, as the record discloses, that at the time of its April action there were no incumbents in the membership of the Authority created in 1933, the last appointment apparently having been made in 1940, to expire in 1946. The council simply filled these positions.
In fine, we think that the Parkersburg Housing Authority was a legal entity capable of executing the instant contracts. Accordingly, the Government was fully authorized to take over the Parkers-burg project, and we approve its actions in this regard.
The suit in the State court jeopardized advancement of the project by clouding the financial responsibility of the Authority in the eyes of creditors and subcontractors. It thus tended to defeat the purpose and policy of the Congress in furnishing low-rent housing to citizens deserving of this help. 42 U.S.C. § 1401. The District Court recognized these threats, and rightly enjoined prosecution of the State court proceeding. We have no doubt that a Federal court may enjoin State court actions which imperil the “superior federal interest” embodied in the United States Housing Act and the Parkersburg project. Leiter Minerals, Inc., v. U. S., 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957).
Affirmed.
. To avoid confusion and repetition in referring to the municipal and Ifederal ageneies, we have used “Authority” as meaning the City’s agency and “Government” as including all of the agencies of the United States involved in effectuating the Act.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_appel1_1_2 | D | 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".
INTERSTATE ENGINEERING CO., Inc., et al. v. DISTRICT OF COLUMBIA, to Use of ALCO PRODUCTS, Inc.
No. 7435.
United States Court of Appeals for tlie District of Columbia.
Argued March 7, 1940.
Decided April 29, 1940.
Robert E. Lynch, of Washington, D. C., for appellants.
Charles Dickerman Williams, of New York City, and Richard H. Wilmer and Douglas L. Hatch, both of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
GRONER, C. J.
This is an action brought in the District Court by Aleo Products, Incorporated (ap-pellee), against Interstate Engineering Company, Inc., and New Amsterdam Casualty Company, its surety (appellants), for the balance of the purchase price of steel pipe sold and delivered by Aleo to Interstate for use in a public improvement in the District of Columbia, pursuant to a proposal made by Aleo June 14, 1934, and confirmed September 20, 1934. The agreement provided for payment in full “not later than 200 days from date of'first shipment”. Shipments began November 20, 1934, and were completed in December, 1934. Interstate admitted receipt of the pipe, but sought to diminish the amount due therefor by claiming damages caused by delay in delivery. The lower court instructed the jury to find for the plaintiff in the full amount of the claim, with interest.
On this appeal, Interstate and the surety company charge error in the admission by the court in evidence of a series of letters from Aleo showing demands for payment and from Interstate in acknowledgment of tlie indebtedness. Also in the refusal of the court to direct a verdict in favor of Interstate, and in instructing the jury in favor of Aleo.
The grounds of Interstate’s objections to the. letters do not appear in the record, but we have examined the correspondence and are of opinion that all of it was relevant and properly a part of plaintiff’s case. In addition to this, the correspondence showed express admissions by Interstate relevant and proper in denial of its counterclaim.
Appellants’ main argument on this appeal is that the court erred in directing a verdict for appellee “on the theory of an account stated”. The basis of this argument is that the court, in directing a verdict for the plaintiff, said: “ * * * the defendant accepted the bills which the plaintiff rendered for the materials shipped, and agreed to pay those hills in full, making no claim or objection to them; so that this defendant must be treated as having assented to the bills rendered, or the bills rendered ha ve become, as we say, an account stated, not subject to objection later.”
Appellants insist the theory that the suit was brought on an account stated is not responsive to the pleadings. I f that was ihe theory of the decision, undoubtedly appellants are correct, for an account stated is treated as a new contract and is not necessarily conclusive of claims not intended to be. covered. Willis ton on Contracts (2d Ed.), §§ 1862, 1864; Stearns Company v. United States, 291 U.S. 54, 65, 54 S.Ct. 325, 78 L.Ed. 647; Chinn v. Lewin, 57 App.D.C. 16, 16 F.2d 512, 40 A.L.R. 1480. But we think the court’s language was not intended in a technical sense but merely as a method of conveying to the jury the idea that defendant, having received the pipe and thereafter without objection having agreed to pay for it, was presumed to have assented 5o the correctness of the amount due and waived the defenses which nearly two years later it attempted to set up. The use of the words — account stated — was merely a figure of speech which, in deference to the jury, the court thought they would likely understand as impelling his action in talcing the case from them.
The record shows the shipments of pipe began in November, 1934, and were completed in December, 1934 (except as to an “extra”, subsequently ordered). Plaintiff wrote defendant on January 10, 1935, enclosing statement of account and asking when payment might be expected. Defendant answered this communication January 16, acknowledging the correctness of the account and advising that it expected payment from the District of Columbia within 60 days. Later, on June 4, 1935, defendant wrote plaintiff:
“Just as soon as the line has been tested and payment made to us, we will forward you payment in full for this material.
“Thanking you for your co-operation in this matter, we are * * * ”
Again, on June 17, 1936, defendant wrote:
“We are exceedingly pleased to herewith attach Government check #474,567, in the amount of $33,350.35, endorsed to your order to apply on our account.
“We are vigorously pressing our claim against the District and we anticipate an early conclusion thereof. The balance of the account will be paid at said time.
“In closing, permit us to say that we are very appreciative of the patience which you have displayed.”
At no time during' the eighteen months’ correspondence did defendant or its surety intimate the .existence of any counterclaim for damages by delay in receipt of the pipe. While the authorities are not entirely uniform as to what conduct will amount to a waiver of counterclaim for damages, Williston on Contracts, § 704, we are of opinion that the absence of any protest for a period of almost two years, coupled with two written promises in the interim to pay in full, and a substantial payment expressly stated to be “on our account”, are sufficient to show a waiver as a matter of law. Kalamazoo Ice Co. v. Gerber, 6 Cir., 4 F.2d 235; Reid v. Field, 83 Va. 26, 1 S.E. 395; White v. T. W. Little Co., 118 Wash. 582, 204 P. 186; Minneapolis Threshing-Machine Co. v. Hutchins, 65 Minn. 89, 67 N.W. 807; Roby v. Reynolds, 65 Hun 486, 20 N.Y.S. 386. Cf. Restatement of Contracts, § 412. On this branch of the case, we have no doubt the holding of the District Court was correct.
This leaves for consideration only the calculation of interest. Appellee admits an inaccuracy of $13 in the computation, and agrees that the court may direct a remittitur as to this excess. With this exception, the computation was correct under the rule in Story v. Livingston, 13 Pet. 359, 10 L.Ed. 200. The judgment of the lower court is, therefore, affirmed, subject to the remittitur mentioned above.
Affirmed.
The question of waiver is now controlled by D.C.Code (Supp. Y), Tit. II, § 105), which is § 49 of tlie Uniform Sales Act, enacted for the District of Columbia in 1987, after the transactions involved in this case. 50 Stat. 29.
Question: 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?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_source | F | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Homer R. SYKES, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Itmann Coal Company, a corporation, Respondents.
No. 85-1441.
United States Court of Appeals, Fourth Circuit.
Argued November 11, 1986.
Decided March 3, 1987.
W. Richard Staton, D. Grove Moler, Moler & Staton, Mullens, W. Va., on brief, for petitioner.
Douglas A. Smoot (Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for respondents.
Before WIDENER, PHILLIPS and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
I.
Petitioner Homer Sykes worked in coal mines for over forty years. Prior to 1950, he was a motorman inside the mines. Nearly all of his more recent work occurred above ground as a heavy-equipment operator and mechanic. He retired from his last coal mining job in 1976 because of shortness of breath. Sykes had never lost time working in the mines from respiratory problems or any of his other injuries; he was a dedicated worker who was asked to remain in his position even after retirement age. He testified that his breathing difficulty kept him from staying on the job.
In 1972, Sykes was examined and tested for state occupational pneumoconiosis benefits. Three doctors interpreted his x-ray as showing some degree of pneumoconiosis. Pulmonary function studies from that date were just outside the range required for invocation of the federal interim presumption of disability. Sykes received a state award based on a 25% loss of pulmonary capacity.
Sykes filed a petition for federal black lung benefits in 1974. He was examined that year by Dr. A.R. Piracha, who found chronic obstructive pulmonary disease with a minimal to moderate level of impairment. An x-ray taken in 1974 was read by a field reader as showing simple pneumoconiosis, q-type, of a 3/3 profusion. The Department of Labor requested another interpretation. A B-reader, Dr. William S. Cole, read simple pneumoconiosis, r-type, of 2/2 profusion. Dr. Cole also found the film to indicate complicated pneumoconiosis, category A. Three years later, the company obtained another reading of the same x-ray from Dr. Paul C. Francke, also a B-reader. Dr. Francke interpreted the film as simple pneumoconiosis, q-type, of a 2/1 profusion. He made no finding of complicated pneumoconiosis.
After Dr. Cole’s reading of complicated pneumoconiosis, the Department of Labor determined that Sykes was entitled to benefits under the irrebuttable presumption of § 411(c)(3), 30 U.S.C. § 921(c)(3) (1982). The company controverted the claim, and a hearing was set before an administrative law judge (AU). The company arranged for Sykes to be examined by a physician of its choosing, as provided at 20 C.F.R. § 725.414(a) (1986). Sykes made two trips to this physician, Dr. Willard Pushkin, yielding the ventilatory test results noted supra note 1. But Sykes refused to submit to another x-ray, on the basis of a note from his treating physician, which said that further x-rays could endanger Sykes’ health. Dr. Pushkin noted in his report that Sykes “has shortness of breath with minimal effort,” “has difficulty negotiating a flight of stairs,” has “chronic cough and expectorates mucoid sputum,” and “wheezes and vomits a good deal.” Dr. Pushkin opined that:
1. There is sufficient objective evidence to justify a diagnosis of coal workers’ pneumoconiosis with respect to Mr. Sykes____
3. Mr. Sykes does not suffer from pulmonary or respiratory impairment, based on blood gas studies, as well as spirometry.
II.
The AU awarded benefits based on the § 727.203 presumption at the one and only hearing that was ever held. The AU had the x-ray evidence of complicated pneumoconiosis before him, and the central issue in the hearing was whether or not Sykes would get benefits based on the irrebuttable presumption of 30 U.S.C. § 921(c)(3) (1982). The AU decided at the hearing not to consider the evidence of complicated pneumoconiosis because of possible prejudice to the employer in examining Sykes without the benefit of an additional x-ray. But in his written opinion, the AU reversed this decision sua sponte and claimed to have considered and rejected evidence of complicated pneumoconiosis.
The change of position between the hearing and the time of the written opinion, and the hearing transcript itself, indicate that the AU felt that Sykes definitely should receive benefits. The AU pegged his holding on the interim presumption rather than the irrebuttable presumption so as to avoid any appearance of prejudice to the employer from its inability to get a new x-ray film. At the hearing, there was little discussion of the other evidence in the case, including the Pushkin report. The AU concluded that the interim presumption was invoked by the x-ray evidence and was not rebutted under 20 C.F.R. § 727.203(b)(2) (miner able to do his usual coal mine work) or § 727.-203(b)(3) (total disability not caused by coal mine employment).
The AU considered the Pushkin report in his written opinion, but gave it less than compelling weight. The AU held that the Pushkin opinion “does not tend to affirmatively ‘establish’ the ability or lack of causation required by 727.203(b)” based on the actual wording of the opinion and the fact that its primary conclusion was premised solely on nonqualifying ventilatory and blood gas studies.
The Benefits Review Board (BRB or the Board) affirmed the AU’s written treatment of the irrebuttable presumption evidence, but reversed the AU’s finding of entitlement to benefits. The BRB first asserted that the AU completely ignored Dr. Pushkin’s report; the Board then explained that a medical opinion on the severity of pulmonary impairment based on nonqualifying ventilatory or blood gas studies was competent rebuttal evidence. See Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980). The BRB remanded for renewed consideration of the medical evidence in the case on the question of a § 727.203(b)(2) rebuttal. One Board member dissented, urging that the AU’s initial decision did consider the Pushkin report in a way that accorded precisely with this court’s approach to rebuttal of the interim presumption.
On remand, the ALT reversed and denied benefits due to Dr. Pushkin’s finding of no pulmonary impairment, while noting that three other doctors came to a different conclusion. None of those other doctors found that Sykes was totally disabled; however, the overall summary of the medical evidence was accurately given by the dissenting BRB member:
All nine physicians expressing an opinion on the existence of pneumoconiosis agreed that claimant suffered from pneumoconiosis; ... of six physicians expressing an opinion on the existence of respiratory impairment, five physicians found that claimant suffers from a respiratory impairment; all five physicians expressing an opinion on claimant’s work ability found that claimant had suffered a decrease in capacity to work; and only one physician was selected by the claimant, with all others being referrals by the Department of Labor, West Virginia Occupational Pneumoconiosis Board, or the employer.
Id. (dissenting opinion). Nevertheless, the BRB affirmed the denial of benefits in the second instance.
III.
We agree with the dissenting BRB member: the initial AU decision, awarding benefits, was based on substantial evidence and should not have been vacated. The denial of benefits in this case would work a glaring injustice. The Board chided the AU for ignoring Dr. Pushkin’s report, when in fact the AU considered that report, but properly chose not to give it controlling weight. The AU’s choice of words in describing the Pushkin report was not ideal, but the context of his decision makes clear that he merely refused to credit it above the other reports that indicated the existence of some disability. Dr. Pushkin found that “Mr. Sykes does not suffer from pulmonary or respiratory impair-merit, based on blood gas studies, as well as spirometry” (emphasis added). Considered alongside the other evidence in this case, including the opinion of a B-reader that Mr. Sykes had complicated pneumoconiosis, this statement alone does not compel the conclusion that “the individual is able to do his usual coal mine work or comparable and gainful work.” 20 C.F.R. § 727.-203(b)(2) (1986). While Dr. Pushkin’s statement is probative evidence for a rebuttal under § 727.203(b), it was a mistake for the Board to vacate the AU’s decision and implicitly suggest that, on the basis of Dr. Pushkin’s opinion alone, the interim presumption should be rebutted.
Dr. Pushkin’s report fails to mention the exertive requirements of Sykes’ job or the extent to which Sykes’ symptoms would hinder his performing comparable work. A mere finding of “no impairment” under the American Medical Association standards cannot be equated with a finding that a claimant can continue to perform coal mining work. See Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980) (dissenting opinion). At the .least, for an employer to rebut the interim presumption under § 727.203(b)(2), consideration should be given to the health requirements for work comparable to that performed by the claimant. The plain words of the regulation mandate such consideration. By remanding to the AU in this case and suggesting that Dr. Pushkin’s opinion deserved more weight than it was initially given, the Board effectively dictated a result contrary to the one that the AU clearly believed was just.
The BRB has taken another position in this case which is contrary to the plain language of the statute. It held that an employer may rebut the interim presumption under § 727.203(b)(2) by showing that a miner, while concededly totally disabled, is not disabled for pulmonary or respiratory reasons. That is, the BRB asserted that a causation requirement may be imported into § 727.203(b)(2). This is belied by the words of the regulation. Section 727.-203(b)(2) is concerned with the question of whether miners are totally disabled for whatever reason. There is no inquiry into causation in a proper § 727.203(b)(2) rebuttal. The reference in that subsection to § 410 merely clarifies the nature of “usual and comparable work”; it does not bring causation into question. Causation is addressed in § 727.203(b)(3). Once the miner’s disability is conceded, then the question arises whether that disability is unrelated to mine work.
In the case of Mr. Sykes, a fair reading of the record shows that the ALJ and all who considered his affliction prior to the BRB reversal believed that this miner should receive benefits. The AU struggled with the proper way to award benefits; he might well have proceeded under the irrebuttable presumption initially relied on by the Department of Labor, had not Sykes’ inability to produce another x-ray appeared to block his path. He instead wrote an opinion that relied on the rebut-table presumption and that dealt rather cursorily with all the medical evidence, including that of Dr. Pushkin. There was substantial evidence for his awarding of benefits, and the BRB should not have disturbed this initial decision. Since the Board did vacate the initial decision, with directions that more weight be placed on Dr. Pushkin’s report, the ALJ was left with little choice on remand other than to switch positions and deny benefits.
The dissent was correct and the Board in error in Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980). Accordingly, we reverse and remand to the Board with instructions that the ALJ’s initial decision be reinstated.
REVERSED.
. See 20 C.F.R. § 727.203(a)(2) (1986). Sykes’ 1972 ventilatory study produced an FEV-1 of 2.6 and an MW of 89. According to his medical report, he was 69 inches tall in 1972. The § 727.203(a)(2) qualifying figures for a miner 69 inches tall are an FEV-1 of 2.4 and an MW of 96. By the time of his last available test, by Dr. Pushkin in 1979, Sykes scored an FEV-1 of 2.538 and an MW of 62. His height was then listed as 67 inches. Dr. Pushkin attributed the very low MW score to submaximal effort on the part of Sykes.
Counsel for Sykes indicated at oral argument that Sykes had consistently produced qualifying ventilatory test results prior to Dr. Pushkin’s evaluation. However, in the record before us, none of the values are qualifying. All are just above the § 727.203(a)(2) levels. The existence of values that do not qualify to invoke the interim presumption, of course, is not determinative of the question whether a claimant is entitled to benefits. The presumption can be invoked in any of four ways, see 20 C.F.R. § 727.203(a)(1)-(4) (1986), and once invoked, rebuttal must be accomplished under one of the methods at § 727.203(b).
. The two subsections read as follows:
(b) Rebuttal of interim presumption ... The presumption in paragraph (a) of this section shall be rebutted if:
(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title); or
(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment.
20 C.F.R. § 727.203(b) (1986).
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer: |
songer_respond2_1_3 | E | 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.
CALCASIEU CHEMICAL CORPORATION, a corporation, and Sears, Roebuck & Company, a corporation, Plaintiffs-Appellants, v. CANAL BARGE COMPANY, Inc., a corporation, the BARGE NBC 924, its tackle, apparel, etc., and the M/V REBAJANE, her engines, tackle, apparel, etc., Defendants-Appellees.
No. 16899.
United States Court of Appeals Seventh Circuit.
Jan. 3, 1969.
Rehearing Denied Jan. 23, 1969.
William K. Johnson, Warren C. Ingersoll, John E. Corkery, Chicago, Ill., for plaintiffs-appellants; Lord, Bissell & Brook, Chicago, Ill., of counsel.
Harvey Wienke, Robert D. Barnes, Chicago, Ill., for defendants-appellees; McBride, Baker, Wienke & Schlosser, Chicago, Ill., of counsel.
Before CASTLE, Chief Judge, and SWYGERT and CUMMINGS, Circuit Judges.
CASTLE, Chief Judge.
On July 6, 1966, plaintiff, Sears, Roebuck and Company (Sears), entered into a charter party or contract of affreightment with defendant, Canal Barge Company, Inc., (Canal), for the transportation by barge of a quantity of ethylene glycol (antifreeze) from Lake Charles, Louisiana, to Berwyn, Illinois. Canal picked up the cargo from plaintiff, Cal-casieu Chemical Corporation, which had sold it to Sears, and transported it to the prescribed destination. Upon arrival at Berwyn, the portion of the cargo carried in one compartment of the barge was found to have been contaminated by 16% water, allegedly due to a negligently leaky cement patch in the barge’s hull.
Plaintiffs brought this admiralty action to recover damages arising out of the cargo’s contamination. After answering, Canal moved for and was granted summary judgment on the ground that the charter had been breached by Sears, in that the latter had failed to obtain insurance for the joint account of itself and Canal on the cargo, as the charter required. In plaintiffs’ words, “This appeal is taken to reverse the court’s order granting that judgment on the ground, inter alia, that a genuine issue of material fact remain to be tried.”
One of the printed clauses in the charter provided:
“Neither the tug, tow, master nor owner shall be liable for any loss of, or damage to, or delay in the delivery thereof, however, arising or resulting, even if caused by negligence or unseaworthiness. Deviation by the owner shall not be a breach of this contract. Insurance against all risks shall be carried by the Charterer on the cargo, and on any craft of Charterer, for the Owner’s and Charterer’s joint account. No underwriter on cargo or on Charterer’s craft shall have any claim, by subrogation, loan receipt or otherwise, against the tug, tow, master or Owner, for any loss paid, regardless of the nature or circumstances thereof, and Charterer’s policies on cargo and on Charterer’s craft shall be claused accordingly.”
A further, typewritten clause appearing in the charter provides:
“Special Conditions
“Barge is to be tendered suitable to load ethylene glycol. Any cleaning at Owner’s expense. All inspection fees for account of the Charterer.”
Plaintiffs’ main contention is that the above clause constitutes an express warranty of seaworthiness, a condition precedent, which was not met. At least, plaintiffs claim, the meaning of the clause is ambiguous and requires for its interpretation a finding of the parties’ intent. Therefore, plaintiffs argue, a question of material fact is presented —namely, the intent of the parties — and summary judgment was improper.
Defendants, on the other hand, contend that the special condition was clearly intended by the parties to have the limited application of obligating Canal to tender barges whose tanks were sufficiently clean to be suitable to load the cargo, and to pay for all cleaning expenses. Moreover, defendants argue that regardless of the meaning of this provision, the clause requiring Sears to acquire insurance for the joint account of Sears and Canal was unquestionably breached by Sears’ obtaining insurance solely for its own account, and therefore as a matter of law, plaintiffs are precluded from recovery.
We believe the District Court properly granted defendants’ motion for summary judgment on the basis of Sears’ breach of the insurance clause. Since there is no doubt as to the intention of the parties in agreeing to that clause, there was no issue of material fact presented, the resolution of which could have changed the outcome of the litigation.
Regarding the “Special Conditions” clause relied upon by plaintiffs, we fail to see how the breach of that clause by Canal, if in fact such a breach occurred, would affect the holding rendered below. Even if there is an ambiguity which raised a question of fact, and even if that question could be resolved in favor of plaintiffs — i. e., that Canal breached an obligation to tender a seaworthy craft — plaintiffs are still precluded from recovery as a matter of law since it was Sears’ obligation to insure both itself and Canal against all loss and Sears failed to meet that obligation. As the lower court concluded, “It is clear that had Sears obtained insurance on behalf of itself and Canal covering any Cargo damage, as required by the Charter Party, none of the parties to the instant controversy would have borne the loss of the damaged cargo.” Thus, it was Sears’ own breach of the charter which occasioned its loss, and it is therefore precluded from recovering that loss from defendant. To hold defendants responsible would be manifestly unfair since Canal “might [itself] have insured against the loss, even though occasioned by [its] own negligence.” Luckenbach v. W. J. McCahan Sugar Co., 248 U.S. 189, 146, 39 S.Ct. 53, 54, 63 L.Ed. 170 (1918).
The case of T.N. No. 73, 1939 A.M.C. 673 (S.D.N.Y.1939), cited by defendants, is factually quite similar to the instant case. The shipper in that case also breached a contract requirement to insure the cargo for the account of the carrier, but contended that since the contract contained an express warranty of seaworthiness, the insurance clause was not intended to cover losses due to unseaworthiness. In holding that the carrier was not liable to the shipper for the value of the cargo, allegedly lost due to the unseaworthiness of the carrier’s craft, Judge Leibell issued a thorough, well-reasoned opinion. The following language of that opinion, of which we approve, is particularly appropriate to the instant case:
“In the case at bar * * * the claimant [shipper] was under an obligation to the petitioner [carrier] to take out insurance on the cargo. This was not a mere ‘benefit of insurance’ clause. Claimant was contractually obligated to effect insurance for the account of the petitioner. This was part of the consideration moving from the claimant and, in all likelihood, it had an effect on the freight rate.
******
“ * * * The contract provision as to insurance in this case is stronger and affords greater protection to the barge owner than the ordinary benefit of insurance clause.
“Claimant argues that the result of this interpretation of the insurance clause would be to nullify the express warranty of seaworthiness contained in the same contract of carriage. I do not see it that way. If the charterer, the claimant herein, had lived up to its obligations under the insurance clause, it would not thereby lose the benefit of the personal warranty of seaworthiness. That warranty would still be in effect and in the event of a loss to the cargo, resulting from the unseaworthiness of the barge, claimant could hold both the petitioner and the barge. See [Luckenbach v. (W. J.) McCahan Sugar Refining Co., 248 U.S. 139 (39 S.Ct. 53) (1918); Pendleton v. Benner Line, 246 U.S. 353 (38 S.Ct. 330, 62 L.Ed. 770) (1918)].
******
“There is another aspect to this issue that should not be over-looked. To add by implication to the broad and general language of the insurance clause, an exception of losses resulting from the unseaworthiness of the barge, would leave the barge owner without insurance that he otherwise might have obtained, a result that would be manifestly unfair. The barge owner had the right to assume that the insurance clause in the contract of carriage meant just what it said, without any implied exceptions. The cargo owner (claimant) has only itself to blame if it failed in its obligation to effect insurance for the account of the barge owner (petitioner).
******
“As we have seen, the [carrier] could have taken out insurance on its own account which would cover cargo losses due to unseaworthiness. In fact, •having warranted the seaworthiness of the barges to the claimant, it would seem that insurance covering such a contingency would be the kind most desired by the petitioner. I am of the opinion the aforementioned insurance clause of the contract of carriage was intended to cover any losses the carrier (petitioner) could have insured against, including cargo losses due to unseaworthiness. Since claimant (or its predecessor) contracted to obtain such insurance and did not do so, I am of the opinion that petitioner should be granted exoneration from liability.” 1939 A.M.C. at 689-691.
While we are aware that a 1939 District Court decision from another circuit is not binding upon this Court, we believe the above holdings are a correct view of the law as applied to an almost identical factual situation as the instant case. Moreover, plaintiffs have cited no cases differing with T.N. No. 73, nor can we discover any.
Since the foregoing discussion disposes of the case, we find plaintiffs’ other contentions to be irrelevant. We therefore deem it unnecessary in this opinion to discuss the same. In addition, since the validity of the insurance clause was not challenged in the District Court, we will not consider this issue for the first time on appeal. Minneapolis, St. P. & S.S.M.R. Co. v. City of Fond Du Lac, 297 F.2d 583, 587, 93 A.L.R.2d 1378 (7th Cir. 1961); United States v. County of Iowa, 295 F.2d 257, 259 (7th Cir. 1961).
The judgment below is, therefore, affirmed.
Affirmed.
. T.N. No. 73 was affirmed on different grounds — burden of proof — by the Court of Appeals, sub nom., Commercial Molasses Corp. v. New York Tank Barge Corp., 114 F.2d 248 (2nd Cir. 1940), and by the Supreme Court, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1941). Neither reviewing court found it necessary to discuss the insurance clause and its effects. The District Court opinion in T.N. No. 73 was cited with approval in Hercules Powder Co. v. Commercial Transport Corp., 270 F.Supp. 676, 681 (N.D.Ill., E.D.1967).
Question: 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?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_usc1 | 0 | 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.
Eileen M. THOURNIR, Plaintiff-Appellant, v. Natalie MEYER, Secretary of State for the State of Colorado; and State of Colorado, Defendants-Appellees.
No. 89-1082.
United States Court of Appeals, Tenth Circuit.
July 23, 1990.
David H. Miller (Tamara K. Vincelette and Linda C. Michow of Holland & Hart, Denver, Colo., with him on the briefs), American Civil Liberties Union Foundation of Colo., Denver, Colo., for plaintiff-appellant.
Maurice G. Knaizer, Deputy Atty. Gen. (Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., and Richard H. Forman, Sol. Gen., with him on the briefs), Denver, Colo., for defendants-appellees.
Before MOORE and McWILLIAMS, Circuit Judges, and BRATTON, District Judge.
Judge McWilliams attended oral argument, but did not participate in the decision.
The Honorable Howard C. Bratton, Senior District Judge for the United States District Court of New Mexico, sitting by designation.
JOHN P. MOORE, Circuit Judge.
This case challenges the constitutionality of Colorado Revised Statutes § 1 — 4—801(l)(i) (1980) which provides that a person seeking elective office as an unaffiliated candidate must be registered in Colorado as an unaffiliated voter for at least one year before filing a nomination petition. On cross-motions for summary judgment, the district court concluded the statute imposed no constitutionally impermissible burden and granted summary judgment in favor of the defendant, Secretary of State Natalie Meyer. Thournir v. Meyer, 708 F.Supp. 1183 (D.Colo.1989). Ms. Thournir has appealed contending the statute violates First Amendment freedoms as well as the due process and equal protection clauses of the Fourteenth Amendment. We affirm.
The facts are undisputed. Ms. Thournir moved to Colorado from California in February 1981, but she did not register as an unaffiliated voter until July 14, 1982. On August 19, 1982, she filed nominating petitions with the State to run as an unaffiliated candidate for Congress. Despite the designation of her candidacy, Ms. Thournir had been a member of the Socialist Workers Party (SWP) in California since 1976, but Colorado election laws in existence at the time would permit voters to register only as a “Democrat,” a “Republican,” or as “Unaffiliated.” After litigation initiated by the Secretary in state court resulted in Ms. Thournir’s removal from the ballot because of her failure to meet the qualifications of Colo.Rev.Stat. § l-4-801(l)(i), Ms. Thournir filed this action under 42 U.S.C. § 1983 challenging the statute. Subsequent actions in state court involving other candidates and changes in the Secretary’s rules have significantly moderated the effect of the statute on independent candidates in ways not germane here; therefore, we approach this case solely on the basis of how the statute affects a person in the precise status of Msi Thournir at the time she sought to run as an unaffiliated candidate.
We review de novo a district court’s decision on a motion for summary judgment, Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). In doing so, we must review the record in the light most favorable to the nonmoving party. R-G Denver, Ltd. v. First City Holdings, 789 F.2d 1469, 1471 (10th Cir.1986).
The principal question presented for our consideration is whether Colo.Rev.Stat. § 1 — 4—801(l)(i) places a constitutionally impermissible burden upon unaffiliated candidates which effectively excludes them from the election process. See Anderson v. Celebrezze, 460 U.S. 780, 793, 103 S.Ct. 1564, 1572, 75 L.Ed.2d 547 (1983). In reviewing this issue, “we must first consider the character and magnitude of the asserted injury” to the plaintiff’s constitutional right and then “identify and evaluate the precise interest” advocated by the state to justify any burden state law places on the plaintiff’s right. Rainbow Coalition v. Oklahoma State Election Bd., 844 F.2d 740, 743 (10th Cir.1988) (quoting Anderson, 460 U.S. at 789, 103 S.Ct. at 1570). “Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.” Anderson, 460 U.S. at 789, 103 S.Ct. at 1570.
The right asserted here by Ms. Thournir appears twofold. She advocates her individual right to seek office, but she also asserts the associational rights of the members of the Socialist Workers Party to advocate their political beliefs through the aegis of her candidacy. We shall consider the issues separately.
ASSOCIATIONAL RIGHTS
Colorado did not recognize party affiliation other than Democrat and Republican in 1982, Thournir v. Meyer, 708 F.Supp. at 1185; therefore, Ms. Thournir’s membership in the SWP and the collective interests of those adhering to membership in that party are not legally distinguishable from the interests of the broad spectrum of persons claiming no affiliation with the established major parties. Under the Colorado -statutory scheme, no attempt was made to distinguish one group of unaffiliated voters from another; therefore, we must assume the generic classification of “unaffiliated voter” was protected by the same umbrella of rights and interests.
Moreover, this generic sameness resulted in the elimination or denial of the existence of any political party other than Democrat and Republican. Thus, when Ms. Thournir submitted herself in candidacy for Congress, she could not carry the banner of the Socialist Workers Party. Ms. Thournir and her trial counsel recognized this peculiarity of then existent Colorado law in district court proceedings. In his recitation of undisputed facts during an early hearing, counsel stated: “[Ms. Thournir] registered to vote in early July 1982, and she registered as unaffiliated as the Socialist Workers Party is not a recognized party within the State of Colorado.” (R. Vol. I, doc. 4, at 26). In her affidavit for summary judgment, Ms. Thournir stated: “Affi-ant registered in the City and County of Denver as an unaffiliated voter. (While Affiant was in fact a member of the SWP, Affiant was not allowed to register as such because of other then-existing Colorado Election Code provisions prohibiting registration as anything except ‘Democrat’, ‘Republican’, or ‘Unaffiliated’).” • Id., at 29-30. Indeed, as a purely factual matter, there is nothing in the record to suggest Ms. Thour-nir actually sought or was to appear on the ballot as a candidate of the Socialist Workers Party, notwithstanding her own ideology and claim of party membership.
We therefore cannot accept Ms. Thour-nir’s thesis that her putative candidacy represented a distinct political body of common interest which was denied an opportunity to voice its views because she was refused a place on the ballot. Instead, we must view Ms. Thournir’s case as we would that of a person who maintained no identifiable political affiliation and who simply sought an opportunity to stand for public office.
Indeed, when questioned during oral argument, her counsel admitted the community of interest represented by her candidacy had to have been all of Colorado’s unaffiliated voters. Thus, despite the political views and the interests she shared with people who claimed membership in the SWP, those views and interests were substantially diluted within the whole of the diverse views and interests of persons claiming no affiliation with the major political parties. Indeed, the peculiar Colorado law created the unique situation in which “the rights of voters and the rights of candidates do [] lend themselves to neat separation.” Therefore, we must regard Ms. Thournir’s membership in the Socialist Workers Party essentially irrelevant to the question before us.
So focused, we find ourselves unable to deal with the broad issues of associational rights that form the nucleus of Ms. Thour-nir’s case. Because of the strictures of then current state law and the fact that Ms. Thournir was truly unaffiliated in the eyes of that law, we believe there is no legal substance to her claim of denial of associational rights. Indeed, we conclude that claim is not justiciable. Given her inability to be the candidate of a particular voter group, we simply cannot assay the associational rights Ms. Thournir attempts to vindicate. While we in no way denigrate the significance of those rights, we find no vehicle in this case that would allow us to reach them.
MS. THOURNIR’S INDIVIDUAL RIGHT
Given our previous analysis, we must now examine the durational registration requirement only as it affects all individual unaffiliated candidates in Colorado regardless of their political ideology. This circumscription of'the right involved diminishes its magnitude in the balancing test required by Rainbow Coalition.
While the right to freely exchange political thought has resulted in a severe limitation of a state’s power to affect associational and voting rights of political parties, Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); Tashjian v. Republican Party, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), the effects of a state’s durational limitations on the rights of individual candidates are less clear.
In Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972), the Court stated it had not “attached such [a] fundamental status to candidacy as to invoke a rigorous standard of review.” The Bullock Court had before it a Texas statute that required a substantial filing fee as a precondition to qualifying a candidate for placement on the ballot. The Court defined the fee as a barrier to the candidate’s ballot access but not to a citizen’s right to vote. The Court stated, “In approaching.candidate restrictions, it is essential to examine in a realistic light the extent and nature of. their impact on voters.” Id. at 143, 92 S.Ct. at 856.
So directed, it becomes difficult for us to see how Ms. Thournir’s removal from the ballot had a significant impact in 1982 upon the unaffiliated voters of Colorado. See City of Akron v. Bell, 660 F.2d 166, 169 (6th Cir.1981). Ms; Thournir’s individual candidacy, without a legally recognizable constituency, can be accorded no special status under Bullock. Indeed, had the converse been true, had she been able to legally claim a constituency, the associational rights of those voters would be germane to this case because denial of her candidacy would have impacted directly upon the voters comprising that constituency. Yet, as we have pointed out, the only issue relates to Ms. Thournir and her individual right to run for office. In that context, we are unpersuaded that the twelve-month registration requirement, standing alone, presents an undue burden on the rights of a putative candidate.
Here, the Secretary has established the purpose for Colorado’s durational requirement is to protect the integrity of the party system and to prohibit “frivolous” candidacies. Reasonable restrictions on candidacy to accomplish these ends are sufficient to uphold the statute. Storer v. Brown, 415 U.S. 724, 733, 94, S.Ct. 1274, 1280, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 761, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1 (1973); Lubin v. Panish, 415 U.S. 709, 715, 94 S.Ct. 1315, 1319, 39 L.Ed.2d 702 (1974); Andress v. Reed, 880 F.2d 239, 242 (9th Cir.1989). We believe the one-year requirement is not an unreasonable restriction. Cf. City of Akron, 660 F.2d at 169 (one-year durational residency requirement does not impair a candidate’s First Amendment rights).
DUE PROCESS CLAIMS
Ms. Thournir challenges Colo.Rev. Stat. § 1 — 4—801(l)(i) as a de facto residency requirement prohibited by Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). She maintains the statute evokes the same punitive consequence as that proscribed by Dunn. We disagree. Those election laws impacting upon the travel freedoms which have been invalidated by Dunn are not analogous to the statutes imposing burdens on candidacy. Candidacy itself is not a fundamental right which is comparable to the right to vote; therefore, burdens inflicted upon candidates are not to be measured by the same yardstick applied to burdens affecting voters. City of Akron, 660 F.2d at 169.
Ms. Thournir also argues the statute is a “broadly worded trap” because “it fails to discriminate between those who have, and those who have not, been affiliated with their party” for one year. As we have already pointed out, under the 1980 election laws from which this case arose, “party” affiliation other than that of Democrat or Republican was irrelevant to an “unaffiliated” candidate. Consequently, we can find no basis for Ms. Thournir’s argument, as the statute would not have to provide a means to distinguish the duration of membership in a nonrecognized political group.
Ms. Thournir contends the statute creates an impermissible, conclusive presumption that she was not a member of the SWP for the necessary one year. ■ We think that argument falls, once again, upon the statute’s failure to give recognition to the SWP. The irrelevance of her party membership as an unaffiliated candidate moots any suggestion of an issue based upon impermissible conclusions within the statute.
Ms. Thournir finally argues the State of Colorado disenfranchised her and her supporters when, by regulation of the Secretary, she was not permitted to run as a write-in candidate. The Secretary has pointed out, and Ms. Thournir has admitted, this regulation was repealed in 1987; hence this issue is moot.
Having found no factual substance to, or support for, the central issues of this appeal, and having concluded the district court correctly analyzed the remaining issues, we AFFIRM the judgment of the district court.
. Because the election in which Ms. Thournir sought to run has been held, the Secretary has moved to dismiss this appeal as moot. We disagree. See Barnard v. Chamberlain, 897 F.2d 1059, 1062 n. 3 (10th Cir.1990).
. This limitation on candidacy has not been raised directly in this proceeding.
.Ms. Thournir did not regain a place on the ballot and did not run in the 1982 election. The ultimate disposition has been delayed because of prior appeals from, and remands to, the district court.
. Ms. Thournir advocates the "strict scrutiny” review we refused to follow in Rainbow Coalition, 844 F.2d at 742. Having once rejected that doctrine, we are not free to apply it here.
. Current Colorado law is much different. An independent candidate can run under any affiliation other than the name of an official political party. CoIo.Rev.Stat. § l-4-801(l)(a) (Supp. 1989).
. Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972).
.Ms. Thournir's attack here is dissimilar from the focus of Baer v. Meyer, 728 F.2d 471 (10th Cir.1984), in which persons associated with political groups other than the Democrat and Republican parties successfully challenged Colorado's failure to grant those groups the same ballot process protections as the major parties. We find no support in Baer for Ms. Thournir's case as she has framed it.
. Ms. Thournir argues the State has no interest in a particular person's choice of party affiliation, and that is correct. We do not, however, believe that the State is under any burden to pass a "less restrictive means” of accomplishing its legitimate purpose as that purpose applies to an individual candidate’s right to seek office.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_weightev | D | 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".
NATIONAL LABOR RELATIONS BOARD v. TOWNSEND.
No. 12362.
United States Court of Appeals Ninth Circuit.
Sept. 11, 1950.
Rehearing Denied Nov. 22, 1950.
David P. Findling, Associate Gen. Counsel, National Labor Relations Board, A. Norman Somers, Asst. Gen. Counsel, Abraham H. Mailer, all of Washington, D. C., and Charles K. Hackler, Attys., National Labor Relations Board, Los Angeles, Cal., for petitioner.
Findlay A. Carter, ’Frederick A. Potruch and Carter & Potruch, all of Los Angeles, Cal. (James M. Nicoson, Los Angeles, Cal., of counsel), for respondent.
Before DENMAN, Chief Judge, and STEPHENS and ORR,- Circuit Judges.
DENMAN, Chief Judge.
This is a petition by the National Labor Relations Board pursuant to the National Labor Relations Act, as amended, herein-after called the Act, for the enforcement of its order directing respondent to cease and desist from certain unfair labor practices, to reinstate with back pay three employees and to take other action. Respondent resists on the ground that the Board lacks jurisdiction because the claimed unfair labor practices were not proved to affect interstate commerce.
Respondent is the proprietor of the “M. L: ‘Red’ Townsend’s Garage” in Santa Maria, California. He sells new and used automobiles, automotive parts and supplies, and does automobile repair work. His sales of new automobiles are confined to Hudson automobiles purchased from the Hudson Sales Corporation located in Los Angeles, California. All such automobiles are picked up by respondent in that city.
Pursuant to a complaint filed in 1948 proceedings were had culminating in the order sought to be enforced. The Board determined that respondent’s activities were within the purview of the Act, finding that in the year 1947 the respondent sold new Hudson automobiles purchased from the Hudson Sales Corporation to the extent of $70,770, and that in 1948, the time of the admitted unfair labor practices, was engaged in the same business. The Board also found “that a substantial portion of the Respondent’s business involved the sale of new Hudson automobiles which were originally shipped from points outside the State of California.”
The basis of the latter finding consisted of a decision, of which the Board took judicial notice, wherein the Board had held' that the Hudson Sales Corporation was engaged in interstate commerce because in 1946 a large portion of the automobiles, accessories and parts the Sales Corporation was selling had been shipped to it from points outside the State of California.
The respondent was not a party to this prior proceeding against the Hudson Sales Corporation but, although twice notified that he might do so, the respondent did not avail himself of a twenty day period allowed by the Board’s Regulation 203.46 to object to receipt in evidence of the prior decision by the questionable procedure of taking judicial notice thereof or to the finding of basic fact rested thereon.
We think 'the failure to make such objection precludes respondent from here ’claiming error in the admission of such evidence or contesting the finding that the new automobiles sold by respondent were originally shipped from points outside the state. Section 10(e) provides, inter alia, that “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” Respondent presents various arguments as to why Section 10(e) does not apply. He contends in substance, that he was deprived of the right to be confronted with the evidence and so could not explain or refute it and that the Act requires that the Board base its decision upon evidence in the record. These arguments would of course apply in every case where the useful device of judicial notice was utilized. We are not prepared to say that administrative agencies may never take judicial notice.
The Administrative Procedure Act recognizes that in a proper case judicial notice may be taken, Section 7(d) providing that “Where any agency decision rests on official notice of a material fact not appearing in the evidence in the record, any party shall on timely request be afforded an opportunity to show the contrary.” And Section 10(b) of the National Labor Relations Act provides that an unfair labor practice proceeding “shall, so far as practicable, be conducted in accordance with the rule.s of evidence applicable in the district courts of the United States under the rules of civil procedure * * * ”. The district courts can take judicial notice.
The further contention is advanced that to foreclose respondent from challenging the action of the Board in taking judicial notice is to confer jurisdiction by consent. We cannot agree. It is enough to rebut this contention to point out that if the decision of the Board in the Matter of Hudson Sales Corporation had been offered and received in evidence at the hearing without objection by the respondent he could not now assign such admission as error. This would be so even though exception was taken to the Board’s ultimate finding of fact that respondent’s activities were such as to fall within Section 2(6) and (7). In substance, that is what happened here, for respondent was given an opportunity to object to the action of the Board.
From its prior decision, the Board found as a fact that the new automobiles sold by respondent originated out-of-state. In the absence of any objection we must accept that finding. The rule that jurisdiction cannot be conferred by consent does not go so far as to require a court to redetermine the existence of probative facts which, without objection, the trier of fact has found to exist from evidence before it. As was observed in United States v. Wilson, 10 Cir., 78 F.2d 465, 467, “Where jurisdiction of the trial court depends upon the existence of a fact, that fact must be proven if put in issue by the pleadings; but if the losing party complains of error of the trial court with regard to that fact, such error must be preserved in the record below and assigned and specified as error here. United States v. Kiles, 8 Cir., 70 F.2d 880; United States v. Ellison, 4 Cir., 74 F.2d 864, 869; Vincent v. United States, 64 App.D. 178, 76 F.2d 428.”
The opportunity to object here afforded also disposes of any due process objections. Due process deals with substance, not with form. Cf. Market Street R. Co. v. Railroad Commission, 324 U.S. 548, 562, 65 S.Ct. 770, 89 L.Ed. 1171.
The questions then remain whether the business of the respondent in selling new Hudson automobiles is one in which a labor dispute would affect commerce within the meaning of the Act and, if the answer is in the affirmative, whether the power of Congress under the commerce clause reaches so far. Bearing in mind that the scope of the Act extends to all labor disputes affecting interstate commerce that ■ Congress can constitutionally reach and- that in the Act “Congress has explicitly regulated not merely transactions or goods in interstate commerce but activities which in isolation might be deemed to be merely local but in the interlacings of business across state lines adversely affect such commerce,” Polish National Alliance of U. S. v. N. L. R. B., 322 U.S. 643, 648, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509, we think both questions must be answered in the affirmative.
As noted above, respondent’s sales of new automobiles are confined to Hudson automobiles. These automobiles, which we must assume originated out-of-state, are purchased through a “Hudson Distributor-Master Dealer Sales Agreement” with the Hudson Sales Corporation of Los Angeles. As a “Master Dealer,” respondent has the exclusive rights to sell Hudson vehicles within the limits of Santa Maria. During 1947 respondent’s total volume of business amounted to $346,341. Sales of new Hudson automobiles purchased from Hudson Sales Corporation accounted for $70,770 of this total volume.
We think it apparent that the cessation of respondent’s business due to a strike caused by its unfair labor practices would inevitably decrease , the number of 'automobiles brought from without the state by the Hudson Sales Corporation during the period when respondent ceased to buy them because of a strike-caused stoppage of its business of selling them.
Such a decrease might be relatively small. It might be possible to buy new Hudsons outside of Santa Maria and respondent’s business is not large. However, in N. L. R. B. v. Bradford Dyeing Ass’n, 310 U.S. 318, 326, 60 S.Ct. 918, 84 L.Ed. 1226, it was noted that the possibility of turning to another source of supply is not controlling. And unless the volume of commerce that might be affected is so slight as -to bring into play the maxim de minimis, the applicability of the Act is not dependent upon the amount of commerce affected. N. L. B. R. v. Fainblatt, 306 U.S. 601, 607, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014. With respondent’s sales of new automobiles amounting to $70,770, it is obvious that •there is here no room for the application of the maxim de minimis.
Further, as the Supreme Court has said, “Whether or no practices may be deemed by Congress to" affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout; the country, the total incidence of which if left unchecked may well become far-reaching in its harm ■to commerce.”' Polish National' Alliance of U. S. v. N. L. R. B., supra, 322 U.S. page 648, 64 S.Ct. page 1199. For us to hold that'respondent is beyond the Board’s jurisdiction would allow countless like retailers of new automobiles to engage in unfair labor practices with impunity. The results might well be drastic.
The. fact that Hudson Sales Corporation, respondent’s immediate vendor, acquired title and intervened between the manufacturer and respondent does not require a different result. Williams Motor Car Co. v, N. L. R. B., 8 Cir., 128 F.2d 960, 963; Cf. N. L. R. B. v. Fainblatt, supra, 306 U.S. page 605, 59 S.Ct. 671. And it makes no difference that the obstruction follows rather than precedes the interstate movement. N. L. R. B. v. Van De Kamp’s Holland-Dutch Bakers, Inc., 9 Cir., 152 F.2d 818; Williams Motor Co. v. N. L. R. B., 8 Cir., supra.
We do not consider N. L. R. B. v. Idaho-Maryland Mines Corp., 9 Cir., 98 F.2d 129 controlling in the situation here presented. In this case respecting a national industry we accept our later statement in N. L. R. B. v. Sunshine Mining Co., 9 Cir., 110 F.2d 780, 784, that “The fact that the company, instead of itself buying all its supplies outside the state and shipping them in, as the record shows it did, now has some arrangement whereby someone else ships them in and then it buys them from the shipper after they come into the state, does not destroy the effect of the transactions on interstate commerce.”
We recognize that the commerce clause cannot be pushed so far as to destroy the distinction between what is solely within the domain of the states and what is subject to federal control. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. But we feel that unfair labor practices of retailers of new automobiles which originate out-of-state present such a threat of substantially interfering with the free flow of goods across state lines that they may be reached by Congress and are within the scope of the Act.
So far as the instant case is concerned, it was for the Board to determine whether, in particular instances, unfair labor practices will adversely affect interstate commerce. Polish National Alliance of U.S. v. N. L. R. B., supra, 322 U.S. page 648, 64 S.Ct. 1199. In view of what we have said, and since respondent’s labor practices are admittedly unfair, we feel the Board was fully within its powers in determining that it had jurisdiction in the instant case. 9
A further contention of respondent is that even though he is subject to the Board’s jurisdiction, the Board should not assert jurisdiction in this case. Providing the Board acts within its statutory and constitutional power it is not for the courts to say when that power should be exercised. Many factors such as lack of funds or the imminence of a more drastic disruption of commerce in another industry might dictate that in a particular case powers explicitly granted should not be exercised. Cf. United States v. Morton Salt Co., 338 U.S. 632, 647, 70 S.Ct. 357.
Respondent also takes the position that the Board’s assumption of jurisdiction in his case results in an unconstitutional unequal application of the law and, therefore, is contrary to due process. To answer this it is only necessary to point out that the Board has recently asserted jurisdiction over other dealers selling automobiles at retail. See Liddon White Truck Co., 76 N.L.R.B. 1181; Bell-Wyman Company, 79 N.L.R.B. 1424; Harrys Cadillac-Pontiac Company, 81 N.L.R.B. 1, 3; Midtown Motors, 80 N.L.R.B. 1679; Valley Truck and Tractor Co., 80 N.L.R.B. 444.
The petition for a decree of enforcement of the Board’s order is granted.
. 61 Stat. 136, 29 U.S.C.A. § 151 et seq.
. Matter of Hudson Sales Corporation, 77 N.L.R.B. 378.
. Rules and Regulations of the N.L.R.B. as amended August 18, 1948 (12 F.R. 5656, 5862; 13 R.R. 4872; redesignated as section 102.46 in 14 F.R. 78).
. However, as the Board’s brief admits, respondent is not precluded from here contesting the ultimate finding of fact that his activities affect interstate commerce. The Board was informed of, and dealt with, respondent’s contention that he was not subject to the Act because his activities were purely local. But the Board was not apprised of respondent’s objection to taking judicial notice or the subordinate finding that the automobiles were originally shipped from outside the state until the matter reached this court.
. 60 Stat. 287, 5 U.S.C.A. § 1001 et seq.
. Section 2 provides:
“(6) The term ‘commerce’ means trade, traffic, commerce, transportation, or communication among tbe several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.
“(7) The term ‘affecting commerce’ means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.”
Question: 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?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_numappel | 1 | 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.
Mrs. Amanda Stewart RABB, Administratrix of the Estate of Johnny Rabb, Plaintiff-Appellant, v. The CANAL BARGE COMPANY, Defendant-Appellee.
No. 28866.
United States Court of Appeals, Fifth Circuit.
June 18, 1970.
Norman L. Breland, Holleman & Necaise, Gulfport, Miss., Robert L. Netterville, Natchez, Miss., for plaintiff-appellant.
George Morse, Gulfport, Miss., John Peters, Jr., Jones'^ Walker, Waechter, Poitevant, Carrere & Denegre, New Orleans, La., for defendant-appellee.
Before BELL, COLEMAN and AINSWORTH, Circuit Judges.
AINSWORTH, Circuit Judge:
The issue before us is whether there is an evidentiary basis to sustain the jury’s finding of no negligence or unseaworthiness in this action against Canal Barge Company, Inc., growing out of the unexplained drowning of Johnny Rabb, a seaman. We find that there is and affirm.
Suit was brought under the Jones Act and the general maritime law by decedent’s mother as the administratrix of his estate. Decedent is also survived by sisters and brothers. On the date in question, Johnny Rabb was employed by appellee ' Canal Barge Company as a deck hand aboard the tug, The M/V Eugenia P. Jones. The vessel at the time was pushing seven barges loaded with sulphur up the Ohio River. Rabb, who had been standing available for a fog watch, was last seen alive about midnight on August 2, 1968. Shortly before 3:25 a. m. he was ordered by the Pilot through the ship’s intercom to proceed to the head of the tow as the vessel was beginning to come into fog. After a lapse of several minutes, the Pilot, having been unable to see a flashlight on the tow and having failed in his attempts to contact Rabb through the intercom, awakened the Captain who immediately ordered and shortly thereafter assisted with a general search of the tug and the barges in an attempt to find Rabb. A searchlight was turned on, and the vessel immediately following the tug and all towboats in the vicinity were notified to keep watch. Some time later, about daylight, a launch was put over the side to look for Rabb. The search, however, proved futile. Rabb’s body, without a life jacket, was found the next day. By special verdict, the jury found for defendant.
The Court denied motions of both parties for a directed verdict and all other post-trial motions. Appellant’s argument, basically a factual one, is addressed to the weight of the evidence and the Court’s refusal to grant a peremptory instruction on both the negligence and unseaworthiness issues.
The standard for testing the sufficiency of the evidence in a Jones Act case is that expressed by the Supreme Court in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946), as follows:
“It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.”
See also McBride v. Loffland Bros. Co. & Travelers Ins. Co., 5 Cir., 1970, 422 F.2d 363. Cf. Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365.
We must determine, therefore, whether there was a reasonable evidentiary basis upon which the jury could have found for appellee.
Appellant calls attention to the following omissions of the Captain of the vessel and appellee barge line: the alleged dilatory actions of the Captain by remaining in bed ten to fifteen minutes after having been told of Rabb’s disappearance; his further delay in stopping the vessel and in putting a launch over to look for Rabb; failure to provide a backup man to watch for men overboard in dense fog; and failure to sound distress signals. Appellant further alleges that the failure of appellee to provide adequate lighting and guard rails around the tug constituted actionable unseaworthiness of the vessel.
Having been given the proper instructions by the Court on negligence, unseaworthiness and proximate cause, it was the jury’s function properly to assess that evidence against the following evidence favorable to appellee in determining whether there was liability: Deck hands, venturing out on the barge, were required under all circumstances to wear life jackets and encouraged to use flashlights. There was no life jacket on decedent’s body, and the Pilot looked for, but was unable to see, a flashlight on the head of the tow. Under these circumstances, the jury could have reasonably concluded that decedent’s negligence was the sole proximate cause of his drowning. There were no eyewitnesses to the accident, thus necessitating the jury to draw on inferences. We may assume, therefore, that a certain amount of conjecture forms the basis of the verdict. This, however, does not detract from its validity. As said by the Supreme Court in a F.E.L.A. case, the counterpart of a Jones Act proceeding, “Fact finding does not require mathematical certainty. Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.” Schulz v. Pennsylvania Railroad Company, 350 U.S. 523, 527, 76 S.Ct. 608, 610, 100 L.Ed. 668 (1956). (Emphasis supplied.) See also Lavender v. Kurn, 327 U.S. at 653, 66 S.Ct. at 744.
Appellant stresses the alleged negligent failure of the tug’s Captain to take proper and adequate measures when informed of Rabb’s disappearance. We cannot say that the jury was unreasonable in refusing to find the Captain derelict or dilatory in his duty by allowing no more than fifteen minutes to lapse between being awakened and actively participating in the search. There was evidence that the vessel had already been stopped and that the Captain was aware of it, indicating that the necessary emergency measures were already in motion. Nevertheless, the Captain responded immediately by ordering a search; a searchlight was used to assist; all towboats in the vicinity were notified to keep watch; any search of the river and the banks by launch prior to daylight and a break in the fog would have been dangerous and useless. There was also evidence to refute appellant’s contention that the absence of handrails and additional lights on the barges constituted unseaworthiness. Testimony showed the impracticality and danger of placing life lines around the perimeter of the barges; that all necessary navigational lights were in use and that any other lights aboard the barges would have created confusion and danger. There was also evidence that a one-man fog watch was normal; that there was a clear and unobstructed walkway for a deck hand to use in proceeding to the bow to serve as fog watch. Around the perimeter of the barges was a white glossy enamel stripe about eighteen inches wide painted there as a safety measure to warn a deck hand that he was approaching the edge of a barge.
Appellant nevertheless urges that the tug was unseaworthy as a matter of law and that the unexplained drowning of Rabb requires the application of the res ipsa loquitur doctrine. Resort to this doctrine, however, is not warranted in the absence of showing at least a malfunction, failure or misuse of the vessel, its appurtenances or gear, or some defect therein. Compare Vega v. The Malula, 5 Cir., 1961, 291 F.2d 415; Marshall v. Ove Skou Rederi A/S, 5 Cir., 1967, 378 F.2d 193. The facts of this case are vastly distinguishable from those of Gibbs v. Kiesel, 5 Cir., 1967, 382 F.2d 917, and authorities cited therein, relied on by appellant. In Gibbs the petitioner was struck from behind by doors which unaccountably fell from above. Inability of petitioner to pinpoint the cause which triggered the doors to fall did not preclude a finding of unseaworthiness. We expressed our approval of the application of the res ipsa doctrine to an action for unseaworthiness noting that “the logical inference is often that the gear or appurtenance would not have broken had it not been defective.” 382 F.2d at 919. Here, however, there was no evidence of any untoward effect from which a possible unseaworthy “cause” could be argued.
The District Judge, in a very fair and comprehensive charge, instructed the jury that all of the alleged derelictions of appellee were matters to be decided by them in determining whether there was causal negligence or unseaworthiness. The Court properly instructed the jury on the “slight-negligence” test to be applied in determining liability under the Jones Act. See Webb v. Illinois Central Railroad Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503 (1957); Ferguson v. Moore McCormack Lines, 352 U.S. 521, 522, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). The Court also informed the jury of the absolute duty of the shipowner in respect to seaworthiness. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The jury nevertheless found for appellee on both issues. We cannot say the verdict was without evidentiary basis.
Affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_respond1_1_3 | J | 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)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
TORNELLO v. DELIGIANNIS BROTHERS, Inc.
No. 10010.
United States Court of Appeals Seventh Circuit.
Feb. 16, 1950.
Rehearing Denied March 7, 1950.
Harold A. Fein, Chicago, Ill., George A. Gordon, Chicago, Ill., for appellant.
Amos J. Coffman, Eugene T. Devitt, Chicago, Ill., for appellee.
Before KERNER, FINNEGAN, and SWAIM, Circuit Judges.
KERNER, Circuit Judge.
C. Tornello, plaintiff, sued defendant to recover the purchase price paid for 58 boxes of cheese, and for expenses arising out of an , alleged breach of warranty in that the cheese was unfit for human consumption. The case was tried by the court without a jury. The trial judge made special findings of fact, pronounced his conclusions of law thereon, and rendered judgment iñ'fávor 'of plaintiff. This judgment, defendant seeks to reverse.
The complaint showed affirmatively the requisite jurisdictional amount and the necessary diversity of citizenship. It alleged that on August 8, 1946, defendant shipped to plaintiff at Youngstown, Ohio, 100 boxes of cheese which plaintiff accepted and for which it paid the purchase price; that a libel was prosecuted against the cheese by the United States, and 58 boxes of the cheese were found to be adulterated in interstate commerce in that the cheese consisted of a filthy substance because of the presence ■ therein of rodent excreta and maggots. The cheese was condemned, and the United States marshal was ordered to destroy it. As a result, plaintiff suffered the damages for which the suit was brought.
In its answer defendant averred that it delivered the cheese to the common carrier at Black Creek, Wisconsin, in good and edible condition, and denied that the cheese was contaminated and unfit for human consumption, or that it consisted of any filthy substance.
The record discloses that on October 30, 1946, a libel action against the cheese was filed in the United States District Court at Cleveland, Ohio, in which it was alleged that the cheese was adulterated in interstate commerce in that it consisted in whole or in part of a filthy substance by reason of the presence therein of rodent excreta and maggots. On November 4, 1946, pursuant to a warrant of seizure and monition issued in the libel action, 58 ¡boxes of the •cheese were seized -by a United States marshal. The defendant was duly served with a summons and a copy of the Information in the libel action, and in addition, defendant was promptly notified by plaintiff of the pendency of the libel action, but chose not to participate therein. Thereafter, the District Court in Cleveland found that the cheese had been shipped in interstate commerce in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., adjudged the cheese to be condemned, and ordered the marshal to destroy it.
The decision turns principally on the question whether defendant shipped the cheese in an adulterated condition. There is but little, if any, dispute as to the facts.
The court concluded that the plaintiff had performed every obligation of the contract of purchase, but that defendant had failed to perform its obligations in that the cheese was not fit and suitable for human food due to the presence therein of rodent excreta at the time the cheese was shipped to plaintiff.
The court made additional findings to the effect that the 100 boxes of cheese had been shipped from Black Creek, Wisconsin, by refrigerated truck ahd railroad car; that the cheese arrived at Youngstown, Ohio, on August 12, 1946, was unloaded during the afternoon' of August 13 and placed in cold storage until November 4, 1946, except for 42 boxes that were removed and sold by plaintiff during the period between August 13 and November 4.
Defendant says that the issue is not whether the cheese became adulterated, but when. It makes the point that the decree in the libel action was not conclusive of that issue. It admits, as it must (see Kansas City Wholesale Grocery Co. v. Weber Packing Corporation, 93 Utah 414, 73 P.2d 1272, 1276), that the record in the libel action was admissible, that it is res judicata as to the condition of the cheese when seized by the United States marshal (Bob’s Candy & Pecan Co. v. McConnell, 140 Tex. 331, 167 S.W.2d 511), but insists that the decree did not constitute evidence of adulteration on August 7, the date of shipment, and contends that plaintiff has failed to establish a breach of warranty.
The entire record in the libel action was admitted in evidence. Defendant concedes that such record was conclusive as to the condition of the cheese on November 4. On the issue whether defendant had shipped the cheese in an adulterated condition, the proofs were that defendant had examined the cheese before it was shipped, and that at that time the outside surface of the cheese was washed, and no contamination was observed; that upon its arrival at Youngstown plaintiff examined the cheese, but no contamination was discovered — there was no outer destruction of the surface and no evidence of any foreign material on the outside of the cheese. The boxes of cheese did not remain under refrigeration continually from the time they were delivered to plaintiff, but withdrawals were made from the cold storage on August 28, and on intermittent dates to and including October 26, to the plaintiff’s unrefrigerated salesroom where the boxes were opened and kept for varying periods of from 1 to 17 days. Each piece so sold was examined and found to be in good condition so far as discernible by ordinary examination of the surface. Three pieces of the cheese were sold to the United States Food and Drug Administration on September 26, 1946. On November 4 plaintiff, in conjunction with-an examination by an examiner of the Federal Food & Drug Administration, examined three or four boxes of the cheese seized by the marshal and found no contamination or break in the outside covering of the cheese.
An expert food technologist of many years’ experience, fully acquainted with the deterioration of cheese and what causes deterioration of cheese, testified that if maggots were on the rind or on top of the cheese after it was manufactured, they would be visible, but that rodent excreta can not be seen by ordinary visible means; that if rodent excreta and maggots come into cheese during the process of manufacture, their presence could not be discovered by ordinary visual examination, but if the cheese becomes contaminated by rodent excreta and maggots after manufacture, the maggots could be discerned by ordinary visual examination. It was his opinion that where rodent excreta and maggots are found inside the cheese, they are in the cheese because unsanitary or unclean raw material was used in the process of manufacture.
As already noted, there was positive undisputed evidence that before the cheese was shipped it was washed and no contamination was observed; that upon its arrival at Youngstown it was examined and no foreign material was found on the outside of the cheese; and that on November 4, the cheese seized by the marshal, upon a visual examination, showed no contamination nor break in the outside covering. Compare Smith v. Great Atlantic & Pacific Tea Co., 8 Cir., 170 F.2d 474.
Obviously, in the nature of this case, the question as to when the cheese became adulterated and whether contamination resulted from the presence inside .the cheese of the contaminating factors, cannot properly be determined without the aid of the testimony of experts. True it • is, the testimony of an expert must not be speculative and conjectural. His conclusion must be to a reasonable certainty, yet evidence such as testified to by the expert in this case was proper for the purpose of corroborating the evidence that the adulteration was inside the cheese. Under these circumstances, the testimony of the expert that the adulteration was caused by the unsanitary or unclean raw material used •in the manufacture of the cheese did not leave the matter in a state of speculation. It was evidence to be considered on the question whether the rodent excreta was in the cheese on August 7, the date of shipment.
We have repeatedly said that a judgment may be reversed only if the findings of fact are clearly erroneous, and that a finding is not clearly erroneous if there is substantial evidence to support it. In the state of this record we cannot say that the findings and the conclusions of the trial judge were clearly erroneous. On the contrary, we think the District Court was justified in finding that defendant had shipped the cheese in an adulterated condition, and that the cheese had not become adulterated during shipment or after its delivery, to plaintiff.
Defendant’s final contention is that plaintiff had not complied with the Uniform Sales Act, c. 121 i/¿ §§ 48 and 49, Ill.Rev. Stat.1949, in that he failed to give notice of breach of warranty within a reasonable time, — in other words, that plaintiff was guilty of laches and hence was estopped in .bringing his action.
Rule 8(c), Federal Rules Civil Procedure, 28 U.S.C.A., provides that “In pleading to a preceding pleading, a party shall set forth affirmatively * * * estoppel * * * laches * * * and any other matter constituting an avoidance or affirmative defense. * * * ” The defense of estoppel or laches is an affirmative defense, Zeligson v. Hartman-Blair, 10 Cir., 135 F.2d 874; Bergeron v. Mansour, 1 Cir., 152 F.2d 27; Topping v. Fry, 7 Cir., 147 F.2d 715, and must be pleaded. If it is not pleaded, it is waived under Rule 12. Furthermore, defendant has not, in its statement of points, raised either the defense of estoppel or laches.
It is true that in its answer to plaintiff’s complaint defendant averred that control and title to the cheese passed to plaintiff August 6, 1946, and that defendant submitted to plaintiff its invoice which provided that “All claims must be made within three days after receipt of goods.” But whether such an averment did or did not raise the defense of estoppel or laches, we think it best that we dispose of defendant’s contention on the merits.
There is no evidence that plaintiff knew that the cheese was contaminated before he was served with the summons in the libel action, and since plaintiff notified defendant of the breach of warranty on the day he was served with the summons— that being the first day that he knew of the breach — it is clear there is no merit to defendant’s contention that plaintiff failed to give notice of breach of warranty within a reasonable time.
Affirmed.
Question: This question concerns the first 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?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_opinstat | B | 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.
UNITED STATES of America, Appellee, v. Patti Ann MEYER, Appellant.
No. 90-5085MN.
United States Court of Appeals, Eighth Circuit.
Submitted June 13, 1990.
Decided June 26, 1990.
Paul Engh, Minneapolis, Minn., for appellant.
Jeanne J. Graham, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before JOHN R. GIBSON, MAGILL, and BEAM, Circuit Judges.
PER CURIAM.
Patti Ann Meyer appeals her conviction of making, and aiding and abetting the making of false statements in a passport application, in violation of 18 U.S.C. §§ 1542 and 2. Meyer argues that the government’s delay of over three years between the date of her offense and trial violated her sixth amendment right to a speedy trial, her fifth amendment right to due process and the Speedy Trial Act, 18 U.S.C. § 3161, et. seq. She further argues that the government’s proof at trial was insufficient as a matter of law to prove her guilt beyond a reasonable doubt. The district court rejected these arguments. We affirm.
I.
On September 6, 1985, Wilson George Simon (Simon), Meyer’s boyfriend, applied for a United States passport in the name of his deceased brother, Sayed George Simon (Sayed Simon). Because Simon did not have the necessary identification to prove he was Sayed Simon, he submitted an affidavit in Meyer’s name vouching for his identity. Despite her protestations to the contrary, through its verdict the jury found that Meyer personally signed the affidavit.
Over one year before this incident, Simon was tried and convicted in federal district court of possession with intent to distribute hashish and hashish oil, in violation of 21 U.S.C. § 841(a)(1), and of being a convicted felon in possession of two firearms, in violation of 18 U.S.C. § 922. Meyer attended the entire trial and, along with others, picketed outside the courthouse carrying signs declaring Simon’s innocence.
During the pendency of Simon’s appeal to this court, he remained free on bond. On August 15, 1985, Simon, Meyer and two others applied for passports. Simon listed his home address as 1811 Como Avenue S.E., Minneapolis, his travel plans as Europe and his date of departure as August 25, 1985. Meyer listed the same information on her application. In addition, Simon’s daughter and Takashi David Yoshino each completed a passport application, listing August 25, 1985 as their departure date and Europe as their destination.
Because neither Simon’s daughter nor Yoshino had sufficient forms of identification, Simon signed an affidavit of identifying witness vouching for his daughter’s identity and Meyer signed an affidavit vouching for Yoshino’s identity. Upon submitting the form, Meyer presented her driver’s license to Roger Walstead, a postal employee who processes passport applications. Walstead testified that on the affidavit he copied Meyer’s license number and its expiration date. Her driver's license number was listed as beginning with an “M” followed by twelve digits, the last three of which were “829”. The expiration date of her license was noted as October 27, 1988.
On August 19, 1985, over one month after we upheld his conviction, United States v. Simon, 767 F.2d 420 (8th Cir.), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985), Simon was given notice to voluntarily surrender to United States Marshals on September 10, 1985. However, Simon had other plans. On September 6, 1985, Simon and a female companion went to the post office. Simon applied for another passport in his deceased brother’s name. Simon listed his address as 1019 Main Street N.E., Minneapolis, a departure date of September 20,1985, and destination as Europe. An affidavit in Meyer’s name vouching for Simon’s identity was submitted with the passport application. The affiant stated that she had known “Sayed Simon” for five years. The affiant also listed the same address Meyer had provided in her August 15, 1985 affidavit, vouching for Yoshino’s identity.
Alan Rodeberg, a postal employee, processed the applications. He testified that the affidavit was completed and signed in his presence. Although he testified he could not identify the affiant, he did recall that she was younger than Simon. Meyer is approximately eighteen years younger than Simon. Rodeberg further testified that the affiant produced a driver’s license, whose number and expiration date he copied onto the affidavit. Although Rodeberg noted the expiration date as October 27, 1958, he testified that he had mistakenly copied the date of birth from the license. October 27, 1958 is in fact Meyer’s date of birth. The driver’s license number he wrote down began with an “N” and was followed by twelve digits, the last three of which were “828”.
On September 6, 1985, Simon and his younger female companion also went to an American Automobile Association (AAA) office to purchase six photographs for an international driving permit and passport. He also applied for international driving permits under his and Meyer’s names. After being shown Meyer’s international driving permit photograph, the AAA representative stated that it appeared to be a picture of the woman who was with Simon.
Simon failed to voluntarily turn himself in to the marshals on September 10, 1985 as ordered. Local authorities received information that Simon was in an apartment in Fridley, Minnesota. A search warrant was then obtained. Later that day, when officers entered the apartment, they found Simon, Meyer and the apartment’s resident. The police seized a large number of documents, including two letters, one from the Seattle Passport Agency addressed to Sayed Simon, dated September 10, 1985, and one written to the Seattle Passport Agency purporting to be from Sayed Simon, dated September 15, 1985; microfilm copies of school records for Sayed Simon from 1953; an application for a Minnesota driver’s license; international driving permits in the names of Meyer and Simon, issued on September 17, 1985; and passports issued to Simon on August 19, 1985 and to Meyer on August 16, 1985.
On April 9, 1986, Meyer was indicted on one count of making, and aiding and abetting the making of false statements in a passport application on September 6, 1985. On May 21, 1986, pursuant to the government’s request, the district court dismissed the indictment without prejudice to permit additional investigation to confirm the passport affiant’s identity. After the dismissal, the government obtained from Meyer handwriting exemplars and signatures made in the ordinary course of business. These signatures were analyzed by an expert and compared with the passport document at issue in this case. The expert testified that she was certain the signature on the document was Meyer’s and not a forgery.
On April 18, 1989, the grand jury returned another indictment charging Meyer with the same offense. After making her initial appearance on July 17, 1989, she was released on a $5,000 unsecured bond. Trial was originally scheduled for September 11, 1989, but did not commence until the following month. On August 31, 1989, Meyer filed a pro se motion for continuance charging her counsel with ineffective assistance, collusion with the government, and otherwise unethical behavior. Counsel subsequently filed a motion to withdraw. The court appointed new counsel on September 11, 1989, and granted Meyer’s motion for a continuance, setting a new trial date of October 10, 1989. On several occasions before trial, Meyer unsuccessfully moved to dismiss the indictment on speedy trial grounds. On October 12, 1989, the jury returned a verdict finding Meyer guilty. She filed a motion for judgment of acquittal, arguing that the evidence was insufficient to support the verdict. In the alternative, she sought a new trial arguing that her due process and speedy trial rights had been violated. On October 31, 1989, the district court denied both motions.
II.
A.
Meyer first argues that the nature of the government’s prosecution violated her sixth amendment right to a speedy trial. Meyer’s sixth amendment claim is based on the three-year delay between the date of the offense and the date of the trial. Her claim is without merit because it ignores the intervening dismissal of the first indictment. The original indictment was dismissed without prejudice only two months after it was returned. She was not reindicted until nearly three years later. This three-year period between the dismissal of that indictment and Meyer’s reindictment for the same offense does not implicate her sixth amendment right to a speedy trial because that guaranty is not operative after charges have been formally dismissed. See United States v. MacDonald, 456 U.S. 1, 9-10, 102 S.Ct. 1497, 1502-03, 71 L.Ed.2d 696 (1982) (no speedy trial violation when defendant indicted on civilian charges four years after dismissal of military charge for same crime); United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir.1988) (period between dismissal of original indictment and reindictment reviewed by due process preaccusation standard because speedy trial right inapposite). Such a delay implicates only the due process clause. Id.; see infra at 1251-52. Therefore, we reject Meyer’s speedy trial claim.
If Meyer is to successfully allege a violation of her sixth amendment right to a speedy trial, she must focus on either the approximate two-month period from her arrest to the dismissal of the first indictment or on the approximate three-month period from her first appearance on the second indictment to her trial. Because, however, Meyer does not argue that either delay violated her constitutional right to a speedy trial, we need not reach that issue. Nevertheless, we do note, and Meyer concedes, that the government’s delay did not violate the terms of the Speedy Trial Act. It is “an unusual case” in which the sixth amendment has been violated when the Act’s time limits have been met. United States v. Thirion, 813 F.2d 146, 154 (8th Cir.1987).
B.
Meyer next argues that the delay of over three years in bringing her to trial violated her right to due process because the government was able to obtain an unfair tactical advantage. Although statutes of limitations are the primary safeguard against prejudicial preaccusation delay, Meyer may establish a due process violation based upon preaccusation delay by showing that it resulted in actual prejudice and was intentional and improperly motivated. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). To meet her heavy burden of establishing actual prejudice, she must prove that the preaccusation delay substantially prejudiced her defense. United States v. Scott, 795 F.2d 1245, 1249-50 (5th Cir.1986) (mere passage of time plus unsubstantiated assertions of memory failure and loss of witness insufficient to establish prejudice). Furthermore, Meyer must demonstrate that the government intentionally delayed either to gain a tactical advantage or to harass her. United States v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752 (1977); United States v. Carlson, 697 F.2d 231, 236 (8th Cir.1983).
Although we would normally first inquire into whether Meyer was actually prejudiced by the delay, we need not do so in this case because Meyer does not even allege, nor does the evidence even come close to demonstrating, that the government intentionally delayed with the purpose of harassing her or gaining a tactical advantage. The government dismissed the first indictment in order to permit additional investigation into the offender’s identity. Merely because the police did not come up with substantial additional information does not demonstrate that the police intentionally delayed for an improper purpose. We therefore reject Meyer’s due process challenge. See Lovasco, 431 U.S. at 789-90, 97 S.Ct. at 2048-49 (no due process violation when defendant alleged prejudice because government properly delayed prosecution to discover identities of other participants in theft, not for tactical advantage); Marion, 404 U.S. at 324-25, 92 S.Ct. at 465-66 (1971) (no due process violation when defendant failed to prove delay intended to gain tactical advantage or harass defendant); United States v. Sebetich, 776 F.2d 412, 430 (3d Cir.1985) (no due process violation although government had enough information for indictment two years before defendant indicted when delay due to confusion between state and federal authorities), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988).
C.
Meyer further argues that the district court abused its discretion when it denied her motion to dismiss the indictment based upon a violation of the Speedy Trial Act. The Act requires, inter alia, that a defendant’s trial commence within seventy days from the filing of the indictment, or from the date the defendant has first appeared before a judicial officer, whichever is later, subject to enumerated periods of excludable delays including a defendant’s request for a continuance. Meyer prudently concedes that the government, in pursuing her prosecution, did not violate the terms of the Act. Instead, she argues the government violated the spirit of the Act. We reject her argument as completely without merit. United States v. Leone, 823 F.2d 246, 248-49 (8th Cir.1987).
III.
Finally, Meyer argues that the government’s proof at trial was insufficient as a matter of law to establish her guilt beyond a reasonable doubt. We must affirm her conviction if, viewing the evidence in the light most favorable to the government, there is substantial evidence to support the jury’s verdict. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989). In making this determination, we must give the government the benefit of all inferences that may reasonably be drawn from the evidence. Id. The evidence need not exclude every reasonable hypothesis of innocence, but simply be sufficient to convince the trier of fact beyond a reasonable doubt that the defendant is guilty. Id. We will not lightly overturn the jury’s finding of guilt. United States v. Knife, 592 F.2d 472, 475 (8th Cir.1979).
This is not even a close case. The evidence in support of Meyer’s conviction was overwhelming. She was Simon’s live-in girlfriend. She knew about his upcoming incarceration because she had attended his entire trial in 1984. On August 15, 1985, she and Simon applied for passports together for a trip to Europe. They planned to depart shortly before Simon was scheduled to turn himself in to the marshals. On that date, she completed an affidavit vouching for Yoshino’s identity. A few weeks later, Simon went to the passport office, accompanied by a woman younger than himself. Meyer is eighteen years younger than Simon. A handwriting expert testified that in her opinion the signature on the fraudulent affidavit was definitely Meyer’s. Furthermore, the birth date written on the affidavit was the same as Meyer’s, and the driver’s license number was identical with the exception of the first letter and last digit. Finally, after completing the passport application and corresponding affidavit at the post office, Simon, accompanied by the younger woman, went to an AAA office and applied for two international driving permits in both his and Meyer’s names. The AAA representative identified the woman in Meyer’s international driving permit photograph as the woman who was with Simon on that date. There was substantial evidence upon which the jury could reasonably have convicted Meyer.
IV.
As a preliminary matter, we wish to extend our thanks to Meyer’s court-appointed counsel for his exemplary representation of his client on appeal. Despite counsel’s outstanding efforts, however, we conclude that Meyer has not stated a violation of the Speedy Trial Act, her sixth amendment right to a speedy trial, or her fifth amendment right to due process. Furthermore, the evidence introduced at trial was sufficient as a matter of law to sustain her conviction. Accordingly, we affirm.
. The Honorable Diana E. Murphy, United States District Judge for the District of Minnesota.
. Sayed Simon died in 1954 from burns suffered as a result of a car accident.
. This is the same month and day noted on Meyer's August 15, 1985 affidavit. However, the year is different.
. This number is identical to the number written down on the August 15, 1985 application except for the first letter and last number. The remaining eleven digits were identical.
.Meyer was initially charged by complaint on March 28, 1986.
. Meyer's claim that the government violated the spirit of the Speedy Trial Act will be briefly discussed later. See infra at 1252.
. Meyer attempts to impugn the credibility of the handwriting witness on appeal. The jury presumably heard this attack but nonetheless found the witness to be credible.
. We further note that we have carefully and thoroughly considered the arguments made in Meyer’s pro se brief and find them to be without merit.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer: |
songer_genresp1 | C | 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.
SPENCER PRESS, INC., Plaintiff-Appellant, v. Donald ALEXANDER, etc., Defendant-Appellee.
No. 73-1399.
United States Court of Appeals, First Circuit.
Argued Jan. 10, 1974.
Decided Feb. 5, 1974.
Robert B. Smith, Boston, Mass., with whom Galvin, Smith & Nordlinger, Boston, Mass., were on brief, for plaintiff-appellant.
Daniel F. Ross, Atty., Tax Div., Dept. of Justice, with whom Scott P. Cramp-ton, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., William Brown, Asst. U. S. Atty., Meyer Rothwacks, and Crombie J. D. Garrett, Attys., Tax Div., Dept. of Justice, were on brief, for defendant-appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
Appellant Spencer Press, Inc. (Spencer) brought an action against the Commissioner of Internal Revenue, seeking a preliminary injunction to prohibit, the Commissioner from collecting an “addition to tax” provided by the Internal Revenue Code of 1954, 26 U.S.C. § 6651, for late filing of an income tax return. Spencer requested the district court to .determine that, on the merits, no addition to tax was owed; alternatively it requested the court to order the Commissioner to issue a notice of deficiency (90 day notice) so that Spencer would have an opportunity to present the matter to the Tax Court prior to collection of the tax. 26 U.S.C. §§ 6212, 6213.
The district court, on December 7, 1973, dismissed the complaint “with leave to file a complaint with proper jurisdictional allegation, within 30 days.” An amended complaint was filed on December 10, 1973, and was dismissed without hearing by the district court on December 11 “in view of the fact that this Court after a hearing on December 7, 1973 denied an application for a preliminary injunction based on the same allegations of fact . . . ”
Spencer immediately appealed and requested an injunction pending appeal. Because the Internal Revenue Service proposed to levy on Spencer’s property on December 21, we issued an injunction pending appeal and restrained the collection of the tax until the appeal had been determined. The case was advanced on the docket and oral argument heard on January 10, 1974.
The appeal like the original petition actually raises two issues or groups of issues. The first pertain to whether or not under existing statutes plaintiff is entitled to a pre-levy judicial determination of its liability for the additional tax. We conclude, as did apparently the district court, that he is not. The second pertain to whether, under expanded concepts of due process, see Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), a statutory scheme which authorizes or directs seizure of plaintiff’s property without affording any opportunity for a prior hearing is constitutional. As to this issue, neither a single-judge district court nor ourselves have jurisdiction. 28 U.S.C. § 2282. We accordingly affirm the order of the district court insofar as. it was based upon its interpretation of the statutes of the United States, cf. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), but remand to the district court with instructions to request the convening of a three-judge district court should the plaintiff within ten days file an amended complaint requesting such a court and framing appropriate constitutional issues.
According to Spencer’s complaint its difficulties began when, in 1963, it hired a former officer of the Internal Revenue Service to act as its tax accountant, and turned over to him the task of preparing and filing tax returns. Although everything was apparently being handled in due course, Spencer says it was rudely surprised when the Internal Revenue Service informed it that no returns had been filed for the tax years 1967 through 1970. Spencer asserts that it promptly .hired a new accountant, reconstructed its records, and filed returns for those years, paying in full all of the tax and interest due. The IRS is apparently satisfied that the taxes have been paid in full.
The IRS has claimed the statutory penalty for late filing of returns. Spencer resisted the claimed “addition to tax”, believing that case law supported its position that a taxpayer acting in good faith and with reasonable care is not liable for an addition to tax when defrauded by its accountant. See, e. g., Fisk v. CIR, 203 F.2d 358 (6th Cir. 1953); Giesen v. United States, 369 F.Supp. 33 (W.D.Wis.1973). Spencer wrote the IRS to request a waiver of the addition to tax, but the Service announced its intention to levy on Spencer’s property unless Spencer paid the tax allegedly due.
Spencer then filed the instant suit, requesting that the Commissioner be enjoined from collecting the tax until Spencer has had an opportunity for hearing on its claims that it should be excused. The complaint further contends, perhaps anticipating the Commissioner’s defense, that any actions taken to collect the tax without such a hearing would be in violation of due process. See Fuentes v. Shevin, supra.
The Commissioner responded by drawing attention to 26 U.S.C. § 7421, which precludes district courts from enjoining the collection of a “tax”. He then argued that, although there is an exception to § 7421 for cases in which the IRS was required to, but did not, issue a 90 day notice, no such notice was required. The Commissioner relied upon § 6659, which provides that additions to tax such as the one in this case are not the “deficiencies” for which a 90 day notice is required. We agree with the Commissioner’s interpretation. Appellant’s reliance upon cases decided prior to the change in § 6659 effected in 1960 by P.L. 86-470, 74 Stat. 132, is entirely misplaced.
What is left therefore is the question of the constitutionality of §§ 6659, 6213, 6212, and 7421 to the extent that they, together or singly, operate to deprive a taxpayer of an opportunity to contest, prior to payment, a penalty assertedly due to the government. However, 28 U.S.C. § 2282 provides that an injunction “restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution . . . shall not be granted . unless the application therefor is heard and determined by a district court of three judges . . .” We do not fault the district court for not initially recognizing that the complaint raised issues requiring three-judge resolution. Appellant did not ask for such a court, and while it raised in general terms its Fuentes due process claim, it did not apparently recognize that the government was bound by law to act as it has. It is not up to the courts to analyze a plaintiff’s case and guide him into the correct courtroom. Cf. Aaron v. Cooper, 261 F.2d 97, 105 (8th Cir. 1958). However, it is now apparent that if appellant is to secure a determination of its constitutional claim, a three-judge court is required. Although Spencer did not seek to enjoin a specific section of the Code, its claim inevitably involved a request that an injunction issue directing an officer of the United States to ignore an Act of Congress on the grounds of its unconstitutionality. Cf. cases cited and discussed in Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37-50 (1964).
In extraordinary circumstances we might have jurisdiction to continue our injunction in effect until organization of the three-judge court, cf. Hicks v. Pleasure House, Inc., 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971). While we are not inclined to do so here, we rely upon the government’s good faith not to take further action to collect the additional tax until sufficient time has elapsed for plaintiff, acting with dispatch, to file an amended complaint, request a three-judge court, and make a timely request to that court for such temporary or preliminary relief as the court may be able or willing to give. The ease is remanded to the same district judge.
Since appellant must bear the heaviest responsibility for the time that has been wasted going in the wrong direction, we award costs of this appeal to the government.
Judgment vacated. Remanded to the district court with instructions to call for convening of a three-judge court should the plaintiff within ten days file an amended complaint requesting such a court and raising appropriately framed issues, the action otherwise to be dismissed with prejudice. Costs to appellee.
. The constitutionality or applicability of § 7421 in another context is now before the Supreme Court. Walters v. “Americans United”, Inc., 155 U.S.App.D.C. 284, 477 F.2d 1169, cert. granted 412 U.S. 927, 93 S.Ct. 2752, 37 L.Ed.2d 154 (1973) ; Bob Jones University v. Connally, 472 F.2d 903 (4th Cir.), cert. granted, 414 U.S. 817, 94 S.Ct. 116, 38 L.Ed.2d 49 (Oct. 9, 1973). Cf. Commonwealth Development Ass’n v. United States, 365 F.Supp. 792 (M.D.Pa.1973).
. The legislative history of § 6659 precludes any interpretation of it that would provide a 90 day notice. The section “provides a general rule that the additions to tax for the late filing of income . . . tax returns . . . are to be assessed and collected without the issuance of a 90 day letter.” S.Rep. No.86-1098, 86th Cong., 2d Sess. (1960), 1960 U.S.Code Cong. & Admin.News 2025.
. Cases such as Grandquist v. Hackleman, 264 F.2d 9 (9th Cir. 1959) and Strawberry Hill Press, Inc. v. Scanlon, 273 F.2d 306 (2d Cir. 1959), were expressly mentioned in the Senate committee report and apparently were the impetus for the statutory revision. 1960 U.S.Code Cong. & Admin.News 2025-26.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_usc1 | 0 | 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.
UNITED STATES of America, Appellee, v. Ernest MALIZIA, Defendant-Appellant.
No. 1132, Docket 74-1389.
United States Court of Appeals, Second Circuit.
Argued June 18, 1974.
Decided Sept. 17, 1974.
Certiorari Denied Jan. 27, 1975.
See 95 S.Ct. 834.
Bancroft Littlefield, Jr., Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S.D. N. Y., S. Andrew Schaffer, Asst. U. S. Atty., of counsel), for appellee.
J. Jeffrey Weisenfeld, New York City (Goldberger, Feldman & Breitbart, New York City, on the brief), for defendant-appellant.
Before SMITH and MANSFIELD, Circuit Judges, and BARTELS, District Judge.
Of the Eastern District of New York, sitting by designation.
BARTELS, District Judge:
After a three-day trial in the Southern District of New York before Constance Baker Motley, District Judge, and a jury, Ernest Malizia was convicted on February 15, 1974, of a one-count indictment which charged him with the sale of 995 grams of cocaine in violation of 21 U.S.C. §§ 173 and 174. He was sentenced to ten years imprisonment and a $20,000 fine.
On appeal Malizia raises several errors, the most important of which was the admission of testimony that informant Stanley Gerstenfeld stated that he would not testify because of fear of death, and that Malizia’s fingerprints were taken from the files in the office of the Bureau of Narcotics and Dangerous Drugs.
The record reveals that at about 6 P. M. on February 17, 1971, Group Supervisor Leonard Vecchione of the Federal Bureau of Narcotics and Dangerous Drugs (B.N.D.D.) and Investigator Edward Kayner of the New York State Police proceeded to the area of Park Place and Church Street where they met with Stanley Gerstenfeld, the Government’s informant, whom they instructed to enter an undercover taxicab driven by State Police Investigator George Gross, to whom Vecchione then delivered a paper bag containing $16,500 in advanced Government funds. Gross and Gersten-feld proceeded in the taxicab to Christine’s Luncheonette at 349 Pleasant Avenue in Manhattan, followed by Vec-chione and Kayner in an unmarked police vehicle and by B.N.D.D. Agent John Maltz in a second vehicle.
At approximately 9:15 P.M. they arrived in front of Christine’s Luncheonette, whereupon Gross handed Gersten-feld the paper' bag containing the $16,500 and Gerstenfeld then exited the cab and entered Christine’s. The luncheonette was located below the level of the sidewalk and was enclosed by two large glass windows on both sides of a glass door. A serving counter ran from front to back, perpendicular to- the street. Gerstenfeld entered the luneh-eonette and delivered the bag of money to Malizia who was standing alone behind the counter. Malizia then removed the money from the bag and after thumbing through the bills, came from behind the counter, lifted up the back of Gerstenfeld’s three-quarter length leather jacket and stuck a yellowish package inside Gerstenfeld’s belt in the small of his back and pulled the jacket down over the package. Gross observed the entire transaction from his taxicab and Vec-chione and Kayner who stopped momentarily also witnessed Malizia counting the money. After the sale Gerstenfeld hailed a passing cab which took him to 86th Street and York Avenue where he transferred to Investigator Gross’ cab. Gross then drove Gerstenfeld to 89th Street and York Avenue where they met Vecchione and Gerstenfeld delivered to Vecchione the yellowish package, which upon analysis contained 995 grams of cocaine. Ten minutes after Gersten-feld’s departure, Malizia was observed leaving Christine’s and proceeding to 118th Street and Pleasant Avenue where he placed a brown paper bag in the trunk of a blue Pontiac registered in the name of Rose Malizia, his sister-in-law.
One week later, on February 24, 1971, agents attempted unsuccessfully to locate and arrest Malizia in New York City and also at his house in Nanuet, New York. They interviewed Malizia’s wife and children concerning his whereabouts but without success. They maintained surveillance at Malizia’s home on a regular basis for the next two years and also on the homes of his relatives during Christmas and Thanksgiving, all without success.
Malizia was not arrested until December 18, 1973, when he was apprehended in the vicinity of 236th Street and Johnson Avenue in the Bronx, after he had given the false name of Harry Luppes, which was the name on a driver’s license found in his possession. This was the second time Malizia had given false identification while he was being sought; the first being when he was arrested for a traffic violation in Rockland County on December 5, 1971. At that' time he claimed he was John Conite, the name on a forged driver’s license then held by him.
I
We turn first to the most troublesome issue concerning the admission of testimony relative to the state of mind of Stanley Gerstenfeld. Ordinarily one of the most important witnesses called by the Government in a narcotics case is the purchaser. Here the purchaser was not a Government agent but the informant Gerstenfeld, who from the beginning indicated to the Government agents that he would not testify. Nevertheless an exhaustive search was made by the Government for Gerstenfeld without success. After testimony of the search was adduced, the Government stopped and approached the bench for a conference relative to its offer of proof to show that Gerstenfeld had told Vecchione that he would never testify because he was in fear of being killed. Realizing the importance of the testimony of the informant in this case and at the same time the prejudicial effect of the informant’s stated reason for failing to appear, Judge Motley, outside of the jury’s presence, indicated to the defendant’s counsel that if he did not intend to comment adversely on the Government’s failure to produce the informant, the testimony as to the reason for the failure of the witness to appear would be excluded. Instead of accepting this suggestion, counsel replied that he would raise the question in his summation in the context of the Government’s failure to sustain “its burden of producing all witnesses.” Only after defendant’s rejection of the suggestion did Judge Motley allow the Government to explain why Gerstenfeld was not produced at the trial on the premise that the probative value of the testimony was sufficient to outweigh its prejudicial effect. “Informants in drug cases are not Brahmins, nor are they noted for long-term occupancy of well-tended premises. Their disappearance, voluntary or otherwise, is not extraordinary.” United States v. Super, 492 F.2d 319, 322 (2d Cir. 1974).
We have, under cautionary instructions, upheld the testimony of a witness explaining his own prior failure to testify for the Government or his prior contradictory or inconsistent statements because of fear of threatened retaliation. United States v. Place, 263 F.2d 627 (2d Cir.), cert. denied, 360, U.S. 920, 79 S.Ct. 1439, 3 L.Ed.2d 1535 (1959); United States v. Cirillo, 468 F.2d 1233 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973); United States v. Berger, 433 F.2d 680 (2d Cir. 1970), cert. denied, 401 U.S. 962, 91 S.Ct. 970, 28 L.Ed.2d 246 (1971); United States v. Scandifia, 390 F.2d 244 (2d Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). While these cases permit an impeached witness to explain the circumstances concerning his own state of mind, they do not extend to the explanation for the failure of a presumably favorable witness to testify. A much more serious risk of prejudice exists in such a case because the witness is not present to be cross-examined, even though the testimony concerning his state of mind falls within the hearsay exception.
Vecchione, while on the stand, testified that Gerstenfeld was not in the custody of the Government, that he was not in any way under the control of the Government, that efforts to locate him were unsuccessful, and that Gerstenfeld had told Vecchione that he would never' testify because “he was .in fear of being killed.” It was a general statement which did not point to Malizia as a potential killer and, in fact, on cross-examination Vecchione testified that Gerstenfeld never told him that he heard that Malizia was trying to kill him and further, that Gerstenfeld had worked for Vecchione in other cases prior to making the purchase from Malizia. Malizia claims that the explanation was unnecessary and that all the Government was entitled to was testimony to show that it had attempted without success to find Gerstenfeld. See United States v. Young, 150 U.S.App.D.C. 98, 463 F.2d 934, 939-940 (1972); Wynn v. United States, 130 U.S.App.D.C. 60, 397 F.2d 621, 625 (1967). This, however, may not be sufficient. An adverse inference is likely to arise if a party fails to call a key witness who is expected to give favorable testimony to his cause. “It would present an anomaly in the law if, while one party may comment upon the absence of an opposing party’s witness, the opposing party were not permitted to introduce evidence to excuse the absence of such witness.” Schumacher v. United States, 216 F.2d 780, 788 (8th Cir. 1954), cert. denied, 348 U.S. 951, 75 S.Ct. 439, 99 L.Ed. 743 (1955). On the other hand, such testimony predicated upon fear of retaliation, is so prejudicial that it should be excluded in the absence of exceptional circumstances.
In this case Malizia had an option to exclude the testimony but he rejected that option and chose instead to exploit the absence of the witness, emphasizing upon summation that Gerstenfeld was “not here to tell you what happened.” From these exceptional circumstances arose the necessity to anticipatorily rebut the claim that the Government should have produced the witness. While we believe that cautionary instructions would have been advisable in this case, we conclude that on balance defendant was treated fairly and that the admission of the prejudicial testimony was not sufficient to warrant a reversal, particularly in view of the overwhelming nature of the evidence by the seven agents who had participated in the surveillance of the sale of February 17, 1971.
Malizia next challenges the admission of the testimony of Investigator Kayner to the effect that he brought three fingerprint cards from the Federal Bureau of Narcotics, among which was Malizia’s fingerprint, to the State Police Laboratory to compare with a fingerprint located on the innermost plastic bag containing the cocaine sold to the informant. Kayner testified that no prints at all had been readable from the outer two wrappings around the cocaine; that the partial print removed from the innermost plastic bag had been compared with known parts of Malizia’s prints but the print on the bag was not Malizia’s print. The theory of Malizia’s objection is that reference to Malizia’s fingerprints from the Bureau of Narcotics carried the implication that he was a narcotics violator. It is well known that the Government has in its files fingerprints of most Government officers and employees as well as those who had ever been in any branch of the military service and those who have voluntarily offered their prints. It would have been sufficient without causing any prejudice had the Government’s witness simply testified that the fingerprint cards had been produced from the Government files instead of the Bureau of Narcotics files. However, no card was introduced into evidence and no objection was made to the testimony which, in fact, absolved Malizia, whose counsel exploited the issue on both cross-examination and summation. Cf. United States v. Schwartz, 398 F.2d 464 (7th Cir. 1968), cert. denied, 393 U.S. 1062, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969); United States v. Dichiarinte, 385 F.2d 333, 337 (7th Cir. 1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968). We find no reversible error.
II
Malizia raises three other claims of error, which are of a substantial nature. In connection with establishing proof that Malizia was a fugitive, the Government attempted to show that Malizia was aware of the fact that he was being sought for arrest by introducing evidence that on February 24, 1971 agents stopped an automobile and advised the driver, Malizia’s brother John, that they were looking for Malizia. In examining Investigator Gross the prosecutor asked “What brought you to John Malizia exactly?” and he replied “Well, the night of the Operation Flanker — ,” and when Investigator Pinto was asked what happened on February 24 and 25 he replied that “It was an operation of the federal government called Flanker, .” The reference to the code word “Flanker” was a passing innocuous reference and did not indicate that Malizia was the target of the operation. No objection was made to the use of the phrase and no curative instruction was sought. We find no error. See United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974).
Malizia also claims error in the admission of evidence of his flight, on the ground that he was not informed personally of the charge and no evidence was introduced as to exactly when he fled. The existence of a warrant or proof of defendant’s knowledge that he is being charged with a crime is not a prerequisite to the admissibility of the evidence of flight, United States v. Ayala, 307 F.2d 574 (2d Cir. 1962), and it is also proper to establish flight by showing unsuccessful efforts by the police to locate the defendant. United States v. Waldman, 240 F.2d 449 (2d Cir. 1957); Kanner v. United States, 34 F.2d 863, 866 (7th Cir. 1929). Evidence of flight, like any other circumstantial evidence, has consistently been admissible as evidence of guilt if considered with other facts of the case. United States v. Ayala, supra; United States v. Miles, 468 F.2d 482 (3d Cir. 1972). The evidence here was amply sufficient to be admitted and justified Judge Motley’s instructions to the jury on flight, which adequately protected Malizia’s rights..
Finally, Malizia objects to the trial court’s charge as being coercive. He claims that the trial judge gave what he characterizes as an improper Allen charge in the original charge to the jury. In her instructions to the jury the trial judge stated, among other things: “As we have already pointed out, I think Government counsel and defense counsel have, and I will now point it out, that this is an important case to both the Government and defendant, and therefore since it is an important case, it must be decided. You are not to single out any one instruction alone as stating the law, but you have to consider these instructions as a whole.” She also stated that the jurors were not to surrender their honest convictions and that the verdict must reflect the conscientious conviction of each and everyone of them. Malizia claims that the statement that the case “must be decided” was coercive. The charge was given at 6:15 P.M. on Friday, February 15, 1974, on the eve of a holiday, and the remark was perhaps a slip better left unsaid. But it was not said after a disagreement or deadlock on the part of the jury but before submission of the case to the jury. Taken into consideration with other portions of the charge, this remark could hardly be deemed coercive. As a matter of fact, the charge as a whole was eminently fair to the defendant. See Nick v. United States, 122 F.2d 660, 674 (8th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550 (1941); United States v. McNeil, 140 U.S.App.D.C. 3, 433 F.2d 1109 (1969); United States v. Martinez, 446 F.2d 118, 119 (2d Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1972).
Affirmed.
. Appellant does not on appeal contest the district court’s ruling that the statement was not barred by the hearsay rule “since it was limited to bringing out the informant’s state of mind” (Tr. 43-44). Frank v. United States, 220 F.2d 559, 564 (10th Cir. 1955); Mattox v. News Syndicate Co., 176 F.2d 897, 903-904 (2d Cir.), cert. denied, 338 U.S. 858, 70 S.Ct. 100, 94 L.Ed. 525 (1949); see also Case v. New York Central Railroad Co., 329 F.2d 936 (2d Cir. 1964); VII Wigmore, Evidence § 1790 (3d 1940).
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_r_subst | 0 | 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.
In re BANKERS LIFE & CASUALTY CO.
No. 14222.
United States Court of Appeals Fifth Circuit.
Nov. 6, 1952.
Rehearing Denied Dec. 12, 1952.
Charles F. Short, Jr., Chicago, 111., Miller Walton, Miami, Fla., for appellant.
M. H. Blaclcshear, Jr., Asst. Atty. Gen. of Georgia, Lamar Sizemore, Asst. Atty. Gen., for appellee.
Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.
PER CURIAM.
Upon full consideration of the briefs and arguments on the motion to dismiss, the court is of the opinion that no fact or reason is stated showing that the relief by mandamus is an appropriate remedy. Without, therefore, determining, or considering on the merits, whether the order complained of was rightly entered, the motion to dismiss the petition, because the relief prayed for is not appropriate, is granted, and the petition is dismissed.
Question: 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.
Answer: |
songer_casetyp1_2-3-2 | K | 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 "civil rights - voting rights, race discrimination, sex discrimination".
The MILLER-WOHL CO., INC., Plaintiff-Appellant, v. COMMISSIONER OF LABOR AND INDUSTRY, STATE OF MONTANA, and Tamara L. Buley, Defendants-Appellees. Equal Employment Opportunity Commission, California Dep’t of Fair Employment & Housing, Employment Law Center, and Equal Rights Advocates, Inc., Amici Curiae.
No. 81-3333.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 9, 1982.
Decided Aug. 27, 1982.
See also, 9th Cir., 694 F.2d 203.
Charles L. Fine, Phoenix, Ariz., for plaintiff-appellant.
Paul Van Tricht, Helena, Mont., argued, for Com’r of Labor.
Richard R. Buley, Missoula, Mont., argued, for T. L. Buley; Tipp, Hoven, Skjelset & Fizzell, Missoula, Mont., on brief.
Linda Krieger, San Francisco, Cal., for Dept, of Fair Employment.
Karen MacRae Smith, Washington, D.C., for E.E.O.C.
Before WRIGHT, KILKENNY, and CANBY, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
The Miller-Wohl Company fired Tamara Buley because she missed several days of work. Buley was pregnant. Her pregnancy-related illness caused her absences.
The company’s employment policy permits no sick leave nor leave of absence for any illness during the first year of employment. Regardless what illness or condition causes a new employee’s absence, he or she is discharged for missing work. The company claims it applies this policy consistently.
Two statutes are involved. The Montana Maternity Leave Act (MMLA) proscribes an employer’s termination of a woman’s employment or refusal to grant a reasonable leave of absence because she is pregnant. Mont.Code Ann. § 39-7-203(1), (2). And in Title VII, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k) (Supp. II 1978), declares that pregnant women shall be treated the same as nonpregnant employees similar in their ability or inability to work.
Buley complained to the Montana Commissioner of Labor and Industry who concluded that the discharge violated the MMLA because Miller-Wohl fired her for pregnancy-related absences.
Miller-Wohl sued in district court for declaratory relief. It argues that the MMLA conflicts with the PDA because it requires an employer to treat pregnant employees preferentially. It asserts that Title VII preempts the application of the contrary state provision.
The company’s argument rests on the plain language of the Pregnancy Discrimination Act, which reads:
The terms “because of sex” or “on the basis of sex” include .. . pregnancy . . .; and' women affected by pregnancy . . . shall be treated the same for all employment-related purposes ... as other persons not [pregnant] but similar in their ability or inability to work ....
42 U.S.C. § 2000e(k) (Supp. II 1978).
The PDA expressly requires employers to treat pregnant women the same as similarly able nonpregnant persons. Women who are disabled because they are pregnant must be treated the same as women or men who are disabled for any other reason. Because the Montana Act requires Miller-Wohl to treat its pregnant employees differently, the company argues, it violates Title VII.
Not unexpectedly, the Commissioner and Buley, defendants in Miller-Wohl’s declaratory judgment action, and amici curiae, including the EEOC, argue that the MMLA does not fail under Title VII. They contend that, although the company’s policy is facially neutral, it violates Title VII because it exerts a disparate impact based on sex. E.g., Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). See also Abraham v. Graphic Arts International Union, 660 F.2d 811 (D.C.Cir.1981); 29 C.F.R. § 1604.10(c) (1981) (EEOC Guidelines). Because Title VII would require a leave policy to provide a reasonable period for pregnancy, the result achieved by the MMLA, they contend the two statutes do not conflict and both may apply.
The district court agreed and granted summary judgment against Miller-Wohl. It held that the company should provide a reasonable leave period for all first-year employees rather than permit no sick leave for pregnant employees. See 29 C.F.R. § 1604.10 (questions & answers 19, 29, 30) (1981).
However intriguing these arguments, we conclude this court lacks jurisdiction to decide the question. The federal claims contained in Miller-Wohl’s declaratory judgment complaint are defenses to the employee’s state claim. They fail to create the requisite federal question. See, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950); Guinasso v. Pacific First Federal Savings & Loan Association, 656 F.2d 1364, 1366 (9th Cir. 1981), cert. denied, - U.S. -, - - -, 102 S.Ct. 1716-17, 72 L.Ed.2d 138 (1982).
The Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, is procedural. It provides an additional remedy, but only in cases resting on some independent basis of federal jurisdiction. Alton Box Board Co. v. Esprit De Corp., 682 F.2d 1267 (9th Cir. 1982). Here, Miller-Wohl’s anticipation of a federal defense to a state claim is insufficient to state that independent basis.
Buley’s claim lies entirely within the Montana statute. That Miller-Wohl asserts a preemption defense, in the form of a declaratory judgment complaint, does not change its essential nature as a defense. See Gully v. First National Bank in Meridian, 299 U.S. 109, 112-18, 57 S.Ct. 96, 97-100, 81 L.Ed. 70 (1936) (jurisdictional basis must appear in complaint).
Federal law does not impose a remedy by displacing state law, see 42 U.S.C. § 2000e-7, nor does it define rights, duties, or relationships upon which the state claim depends. See Guinasso, 656 F.2d at 1367 & n.7; cf. Franchise Tax Board of California v. Construction Laborers Vacation Trust, 679 F.2d 1307, at 1308 n.1 (9th Cir. 1982) (federal question requirement satisfied in state’s action challenging a trust created under a federal statute and naming a fiduciary defined by and subject to duties contained in federal statutes).
All of Miller-Wohl’s defenses that are federal in nature may be raised in its defense in the state courts. Indeed, they all are asserted in the company’s petition for review of the Commissioner’s determination that it violated the MMLA. Every issue pleaded in its federal complaint, as well as several defenses based solely on state law, appear in that complaint.
We vacate the district court’s judgment, 515 F.Supp. 1264. It had no jurisdiction, Similarly, we dismiss this appeal because we have no jurisdiction to decide its merits.
. Miller-Wohl also invokes the equal protection clause. That claim, like its statutory claim, is directed toward an anticipated application of the MMLA.
If any constitutional rights are directly affected, but see Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974); General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), they are those of male employees, not of Miller-Wohl. The company asserts no federal claim of its own, constitutional or statutory, sufficient to confer jurisdiction under either 28 U.S.C. § 1343 or § 1331. See Maine v. Thiboutot, 448 U.S. 1, 8 n.6, 100 S.Ct. 2502, 2506 n.6, 65 L.Ed.2d 555 (1980).
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
Answer: |
songer_usc2sect | 1332 | 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 second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
PAN AMERICAN PETROLEUM CORPORATION, Appellant, v. KANSAS-NEBRASKA NATURAL GAS COMPANY, Inc., Appellee.
No. 16583.
United States Court of Appeals Eighth Circuit.
Jan. 12, 1962.
Byron M. Gray, Topeka, Kan., for appellant; Wilbur W. Heard and John F. Jones, Tulsa, Okl., on the brief.
Ezekiel G. Stoddard, Washington, D. C., for appellee; James D. Conway and Elmer J. Jackson/ 'Hastings, Neb., on the brief.
Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.
VOGEL, Circuit Judge.
This is an appeal from a judgment allowing appellee, Kansas-Nebraska Natural Gas Company, Inc., recovery of alleged overpayments for natural gas purchased from Pan American Petroleum Corporation, appellant.
Appellee is a Kansas corporation engaged in the purchase, production, transmission, distribution and sale of natural gas in the states of Kansas, Nebraska and Colorado. It concededly comes within the definition of a natural-gas company (15 U.S.C.A. § 717a(6)) in the Natural Gas Act, 15 U.S.C.A. §§ 717-717w, as amended, hereinafter referred to as the Act.
Appellant is a Delaware corporation engaged in the production and sale of natural gas in interstate commerce from wells in the Kansas Hugoton Field.
The amount in controversy exceeds $10,000, exclusive of interest and costs. (28 U.S.C.A. § 1332(a) as amended.)
The case, tried to the court upon the pleadings and a written stipulation of facts, involved sales of natural gas from the Hugoton Field to appellee for transportation and resale by the latter in interstate commerce. These sales were made pursuant to three separate contracts dated October 8, 1949, March 28, 1950, and March 11, 1952, which provided for wellhead prices of 70 per MCF (thousand cubic feet), 7.50 per MCF and 100 per MCF respectively. The pressure base under each contract was 16.4 p. s. i. a. (pounds per square inch absolute). The contract of March 28, 1950, stipulated as being representative of all three contracts, provided for wellhead prices of gas for five years from date of first delivery at 70 per MCF at 16.4 p. s. i. a.; for the second five years at 80. Included also was the following provision:
“If the Kansas Corporation Commission, the Federal Power Commission, or any other governmental agency, whether State or Federal, having competent jurisdiction, at any time during the term of this contract fixes or determines a higher price for gas in the Kansas Hugoton Field than is set forth in this Section 1, (a), (b) and (c), the Buyer shall pay Seller the price thus fixed or determined, provided, however, that the price to be paid by Buyer to Seller shall at no time during the contract period hereof be less than the price set out * *
Subsequently, the Kansas Corporation Commission, by order dated December 2, 1953, set a minimum price of 110 per MCF measured at a standard pressure base of 14.65 p. s. i. a. for natural gas at the wellhead from the Hugoton Field. In January, 1954, appellee and Cities Service Gas Company instituted review proceedings of this order in a Kansas state court. Appellee, however, to avoid expense and upon assurances that Cities Service would continue the suit, withdrew without prejudice from the review action. Before final decision of the Kansas Supreme Court in these review proceedings, appellee, by letter dated February 18, 1954, and speaking of the 110 order, notified appellant as follows:
“During the period of appeal and pending final judicial determination of said Order, beginning January 1, 1954, Kansas-Nebraska Natural Gas Company, Inc., intends to pay for all gas purchased by it in the Kansas Hugoton Field in compliance with said Order. This compliance, however, is made to avoid any penalties or actions under the laws of Kansas for any violation, and all payments made to you in compliance with said Order, pending its final judicial determination will be paid to you under protest and as involuntary payments on our part, all without prejudice to our rights.
Should the said order be modified or declared to be invalid either in whole or in part, any and all over-payments made to you by virtue thereof shall be due and owing Kansas-Nebraska Natural Gas Company, Inc. In event of any such overpayments, the amount shall be withheld from subsequent payments in the event you have not made full settlement of any overpayment.”
The checks given by appellee and accepted by appellant for gas thereafter purchased referred to the above letter and noted that payment was being made subject to the terms thereof. On March 3, 1954, as a result of the 11^ order, appellee applied for permission from the Kansas Corporation Commission to increase its rates for the sale of natural gas, which permission was granted. A similar application was subsequently made to, and granted by, the FPC effective as of January 1, 1955.
On June 7, 1954, Phillips Petroleum Co. v. State of Wisconsin was decided by the Supreme Court of the United States, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. Thereby the jurisdiction of the FPC under the Act was, for the first time, extended to include the regulation of sales of natural gas by independent producers, such as appellant, who resell in interstate commerce. Pursuant to this decision, the FPC on July 16, 1954, issued its order No. 174 requiring, inter alia, that: (1) All natural gas companies subject to the Act obtain a certificate of public convenience and necessity before engaging in any transportation or sale of natural gas; (2) under § 4 of the Act (15 U.S.C.A. § 717c) the filing of schedules show all rates and charges incident thereto; and (3) by regulation, no independent producer make any change in rates in effect on and after June 7, 1954, without first filing a change in rates pursuant to § 4(d) of the Act (15 U.S.C.A. § 717c(d)). The rules and regulations adopted by such order were made applicable on and after June 7, 1954, the date of the Phillips decision, supra.
In accordance with this order, appellant in November, 1954, tendered to the FPC its rate schedule of gas sold appellee under the October 8, 1949, March 29, 1950, and March 11, 1952, contracts; a copy of said contracts; a copy of the Kansas ll<f order and a copy of the billing for gas sold appellee during May, 1954. Appellant simultaneously mailed appellee copies thereof, stating that they had been-filed with the FPC in compliance with the latter’s order No. 174-A.
Thereafter by letter dated March 8, 1955, the FPC advised appellant that its rate filings “have been accepted for filing” and:
“This acceptance for filing shall not be construed, as a wrnver of the requirements of Section 7 of the Natural Gas Act, as amended; nor shall it be construed as constituting approval of any rate, charge, classification, or any rule, regulation or practice affecting such rate or service contained in the rate filing; nor shall such acceptance be deemed as recognition of any claimed contractual right or obligation associated therewith; and such acceptance is without prejudice to any findings or orders which have been or may hereafter be made by the Commission in any proceeding now pending or hereafter instituted by or against your company.” (Emphasis supplied.)
The only information appellee had of the FPC’s acceptance of appellant’s rate filings was the latter’s letter of May 10, 1955, with an enclosure of a copy of the FPC’s letter of acceptance. Apparently this information was furnished appellee in conformity with a letter dated November 23, 1954, wherein appellee requested data as to the steps taken by appellant in compliance with Order No. 174-A.
In 1957 the State of Kansas enacted a 1% severance tax on natural gas to become effective July 1, 1957. In regard thereto, appellee informed appellant that pursuant to the original gas-purchase contracts it would share one-half of this tax burden, but that first, since such would constitute an increase in rate, appellant, under FPC regulations, was required to file such increased rate with the FPC before it would become effective.
In conformity with the applicable FPC regulations, appellant on June 28, 1957, by letter submitted an increased rate schedule of 11.055?! which reflected appellee’s share of said severance tax. This letter of transmittal contained a “Comparison of prices prior to and subsequent to such change in price (cents per MCF)”, showing an 11(6 base price per MCF as of June 30, 1957, and as of July 1, 1957, a total price per MCF of 11.055?!. By letter to the appellant dated August 19, 1957, the FPC notified the former of the acceptance of such new rate for filing. The letter also contained a cautionary paragraph similar to the one contained in the letter of March 8, 1955, supra. Appellee was notified of the FPC’s action in this regard by appellant’s letter of August 29, 1957.
The review proceedings instituted by appellee and Cities Service, spoken of earlier, resulted in a decision of the Kansas Supreme Court on December 8, 1956, sustaining the 11 order. Cities Service Gas Co. v. State Corporation Commission of Kansas, 180 Kan. 454, 304 P.2d 528. This decision was reversed by the Supreme Court of the United States. Cities Service Gas Co. v. State Corporation Commission of Kansas, 1958, 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed.2d 355. Thereafter, on April 11,1959, the Kansas Supreme Court held that the result of the reversal in Cities Service, supra, was to render the Kansas 11(6 order void ab initio. Cities Service Gas Co. v. State Corporation Commission of Kansas, 184 Kan. 540, 337 P.2d 640, certiorari denied 361 U.S. 836, 80 S.Ct. 89, 4 L.Ed.2d 77. The Kansas severance tax had earlier been held invalid by the Kansas Supreme Court. State ex rel. Dole v. Kirchner, 1958, 182 Kan. 622, 322 P.2d 759.
By letters dated January 23, 1958, and February 18, 1958, appellee, relying upon the judicially determined invalidity of the severance tax and Kansas 11(6 order, advised appellant and other sellers of gas from the Hugoton Field that future payments would be calculated on the basis of the contract rates effective January 7, 1954, and would not include reimbursement for any share of the severance tax; also, that pursuant to its letter of February 18, 1954, refunds for the excess payments involuntarily made under the invalid 11?! order would be requested. Upon appellant’s denial of appellee’s claim for recovery of such alleged overpayments, this suit was commenced. No claim is being made for recovery of appellee’s share of the Kansas severance tax. Appellant filed a counterclaim for recovery of the difference, plus interest, between the amounts paid to it after January 1, 1958, and the amounts it alleges should have been paid to it under the rate of 11.055(6.
It was stipulated that appellee took no action before the FPC in relation to any of the rate filings mentioned above, nor did it seek to stay the effectiveness of the Kansas 11?! order except by its earlier participation in the action by Cities Service Gas Company.
The trial court handed down an oral decision from the bench, subsequently making formal Findings and Conclusions. It found, inter alia, that:
“ * * * the Kansas 11(6 Order was void ab initio and never had any legal validity because at the time the Order was issued and at all times thereafter the Federal Power Commission had, under the Natural Gas Act, the exclusive jurisdiction over such sales and the Kansas State Corporation Commission had no jurisdiction over such sales”
and
“ * * * there was no determination by the FPC that 11.055(6 was a reasonable rate or the legal rate * * *»
In its Conclusions the court, after noting jurisdiction under 28 U.S.C.A. § 1332, observed:
“The interpretation and enforcement of the contracts between the parties on file with the FPC and granting relief to Plaintiff [appellee] does not require this Court to determine the reasonableness of the rates on file with the FPC nor to determine what constitutes reasonable rates”
and
“Plaintiff’s action to recover the overpayments -made under compulsion of the Kansas 110 Order does not constitute a collateral attack on any order or determination of the FPC and does not attack or challenge any rate schedules on file with the FPC. Plaintiff’s action merely requires the proper interpretation under the law of what constituted the legal rates under its contracts filed as rate schedules and the enforcement of such rate schedules as so properly interpreted.”
The court, relying upon United Gas Pipe Line Co. v. Mobile Gas Service Corp., 1956, 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373, and United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 1958, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153, held:
“ * * * The legally effective rate under each rate schedule was the price which Defendant was entitled to receive and Plaintiff was obligated to pay on June 7, 1954 under the terms of each contract, and not the 110 per Mcf price that was actually being paid under compulsion of the Kansas lijé Order.
******
“The supplemental rate filings made by Defendant in July 1957 pursuant to Order No. 197 did not constitute 11.0550 per Mcf as the legally valid rate under the three rate schedules. The supplemental filings merely authorized an increase in the contractual rates effective as of June 7, 1954, by permitting Plaintiff to pay and Defendant to receive, in addition to those rates, the amount of one-half of the Kansas state severance tax of 1%. Since Plaintiff was actually paying 115! per Mcf at that time under compulsion of the invalid Kansas 110 Order (pending ultimate judicial determination of the validity of that Order), the 1% severance tax was measured on the basis of 110 per Mcf, making the tax 0.1100 per Mcf and making Plaintiff’s share .0550 per Mcf. In accepting such supplemental filings there was no determination by the FPC that 11.0550 was a reasonable rate or the legal rate under the contracts filed as rate schedules.”
In so holding the court noted:
“The instant contract contains a specific rate or rates. By reason of an invalid order of the Kansas Commission, a higher rate has been collected. The order fixing the invalid rate was void from its beginning. To this Court, therefore, it would seem to be unjust to permit the defendant to retain the amounts thus unlawfully collected.”
Accordingly, judgment was given for .appellee for the full amount of the alleged overpayments, $20,831.82 plus interest and appellant’s counterclaim was dismissed.
Appellant’s assignments of error are concerned essentially with the alleged infringement by the trial court of the exclusive primary jurisdiction of the FPC. It points out initially that appellee’s action can succeed only as an enforcement action under § 22 of the Act (15 U.S.C.A. § 717u). In this regard appellant contends that while the court disclaimed making any collateral attack upon the filed rate with the FPC but, rather, stated the action to be one to enforce filed rate schedules (§22 supra), yet the court noted the derivation of its jurisdiction to be 28 U.S.C.A. § 1332 (diversity and amount).
Appellant contends that by the Commission accepting the tendered rates for filing which were based upon the Kansas 11^ order and the severance tax, such rates became the “effective” or “legal” filed rates and could be changed only by FPC action under § 5(a) of the Act (15 U.S.C.A. § 717d(a)). From this they reason that the only way the action could be questioned would be by the review procedure provided by § 19 of the Act (15 U.S.C.A. § 717r as amended), and that appellee, not having utilized such appeal procedure, is now precluded from questioning collaterally the FPC “orders” here involved on grounds that the latter are now res judicata,. They further contend that the trial court, by “nullifying” the orders of the FPC accepting the 11(£ and 11.055^ rates, has usurped the power of the Courts of Appeals under § 19 of the Act.
First, with reference to the question of jurisdiction, it is noted that the requirements of 28 U.S.C.A. § 1332 as to diversity of citizenship and amount involved are fully satisfied. Unless the provisions of the Natural Gas Act bar jurisdiction of the district court, the action has been properly brought and the court acquired and maintained jurisdiction of the parties and of the subject matter in suit. We think the answer is found in the recent case of the Supreme Court of the United States, Pan American Petroleum Corp. v. Superior Court of Delaware, 1961, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584. The sole issue there was whether the Delaware Superior Court could take jurisdiction of a case which was bottomed on circumstances identical with those involved herein. The Delaware Supreme Court had sustained its lower court’s finding of jurisdiction, stating that the claims of Cities Service “ * * * are not founded upon any liability created by the Natural Gas Act, but upon a private contract deriving its force from state law.” (Emphasis in the original.) Columbian Fuel Corp. v. Superior Court of Delaware, Del.1960, 158 A.2d 478, 482. In affirming the Delaware court, Mr. Justice Frankfurter said, at page 663 of 366 U.S., at page 1307 of 81 S.Ct.:
“The rights as asserted by Cities Service are traditional common-law claims. They do not lose their character because it is common knowledge that there exists a scheme of federal regulation of interstate transmission of natural gas.”
At page 664 of 366 U.S., at page 1308 of 81 S.Ct.:
“ * * * We are not called upon to decide the extent to which the Natural Gas Act reinforces or abrogates the private contract rights here in controversy. The fact that Cities Service sues in contract or .quasi-contract, not the ultimate validity of its arguments, is decisive.”
We conclude here that the District Court had jurisdiction of the controversy under 28 U.S.C.A. § 1332.
Appellant next refers to §§ 4 and 5 of the Act (15 U.S.C.A. §§ 717c and 717d) as giving specific authority to the FPC with respect to rates and argues that the action of the District Court was an invasion of the FPC’s “exclusive and primary jurisdiction”. In United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, 1956, 350 U.S. 332, 341, 76 S.Ct. 373, 379, 100 L.Ed. 373, the Supreme Court said:
“ * * * These sections [§§ 4 and 5 of the Act] are simply parts of a single statutory scheme under which all rates are established initially by the natural gas companies, by contract or otherwise, and all rates are subject to being modified by the Commission upon a finding that they are unlawful. The Act merely defines the review powers of the Commission and imposes such duties on natural gas companies as are necessary to effectuate those powers; it purports neither to grant nor to define the initial rate-setting powers of natural gas companies.
“The powers of the Commission are defined by §§ 4(e) and 5(a). The basic power of the Commission is that given it by § 5 (a) to set aside and modify any rate or contract which it determines, after hearing, to be ‘unjust, unreasonable, unduly discriminatory, or preferential.’ This is neither a ‘rate-making’ nor a ‘rate-changing’ procedure. It is simply the power to review rates and •contracts made in the first instance by natural gas companies and, if they are determined to be unlawful, to remedy them. * * * The scope and purpose of the Commission’s review remain the same — to determine whether the rate fixed by the natural gas company is lawful.”
At page 343 of 350 U.S., at page 380 of 76 S.Ct.:
“ * * * The initial rate-making and rate-changing powers of natural gas companies remain undefined and unaffected by the Act.”
In the instant case, the jurisdiction of the FPC to determine the lawfulness of the rates involved has not been brought to bear. There has been no request for a hearing before the FPC, either on its own motion or on the motion of anyone else, to have determined the lawfulness of the rates under the “just and reasonable” standard of § 4(e) (15 U.S.C.A. § 717c(e)). The court here was not asked to adjudicate any violation of the Act or to enforce any liability created thereby under § 22 of the Act (15 U.S. C.A. § 717u), supra. Appellee’s claims for refund because of alleged overpayment are not founded on any liability created by the Act but arise solely out of the contracts between the parties, which they had a perfect right to make and which are binding upon them, unaffected by the Act unless there has been a finding on the part of the FPC that the rates were unlawful as being unjust and unreasonable. Such a finding by the FPC could only be made after a hearing initiated on its own motion or by that of interested parties.
■ Appellant nevertheless argues that by the FPC’s acceptance of the tendered rates based partially on the Kansas 110 order and the 1% severance tax, these rates became “effective or legal” and effectively changed the contract rate between the parties. Answer to this contention is in the letter from the FPC dated March 8, 1955, and subsequent letters accepting rate filings by the appellant, wherein the FPC stated, “ * * * acceptance for filing shall not be construed as a waiver * * *; nor shall it be construed as constituting approval of any rate, charge, classification, or any rule, regulation or practice affecting such rate or service contained in the rate filing ; nor shall such acceptance be deemed as recognition of any claimed contractual right or obligation associated therewith; and such acceptance is without prejudice to any findings or orders which have been or may hereafter be made by the Commission * * No order was issued and no approval was given and no determination of any kind was made by the FPC.
It should also be remembered that the contracts between the parties specifically provided that if the Kansas Corporation Commission, the FPC, or any other governmental agency, whether state or federal, having competent jurisdiction, should determine a higher price for gas, such higher price would be paid. When the Kansas 11 ^ order was made, the appellee took the position by letter that it would pay the increased rate but that if such order was subsequently declared invalid, such overpayments were to be due appellee. Checks in payment of gas thereafter carried the notation that payment was being made subject to the terms of such letter.
When the Supreme Court of the United States in Cities Service Gas Co. v. State Corporation Commission of Kansas, 1958, 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed.2d 355, held the Kansas 11¢ order unlawful and the Supreme Court of Kansas, in Cities Service Gas Co. v. State Corporation Commission of Kansas, 1959, 184 Kan. 540, 337 P.2d 640, certiorari denied 361 U.S. 836, 80 S.Ct. 89, 4 L.Ed. 2d 77, held in accordance with such decision that the Kansas llfá order was void db initio, the effect was that the order became a complete nullity. Being a nullity, it could not modify the contract rates between the parties. The effect could only have been to leave the parties where they were prior to the unlawful order — in other words, bound by the contract rates to which they had agreed in 1949, 1950 and 1952. A parallel of reasoning is applicable to the Kansas 1% severance tax subsequently held invalid by the Kansas Supreme Court, State ex rel. Dole v. Kirchner, supra.
In dealing with a similar problem involving an order of the Oklahoma Commission establishing a minimum rate, which order was found to be invalid, the Court of Appeals for the Third Circuit in Natural Gas Pipeline Co. of America v. F. P. C., 1958, 253 F.2d 3, 7, certiorari denied sub nom. Dorchester Corp. v. Natural Gas Pipeline Co., 357 U.S. 927, 78 S.Ct. 1372, 2 L.Ed.2d 1370, said:
“* * * When the United States Supreme Court found Oklahoma’s action to have been unlawful and set the state commission order aside, there was no longer even the semblance of a valid law, or lawful order which could modify the contract rate. The contract rate, therefore, under the mandate of the Supreme Court must be held to have been the rate effective on June 7, 1954.”
The Tenth Circuit, in Cities Service Gas Co. v. F. P. C., 1958, 255 F.2d 860, certiorari denied sub nom. Magnolia Petroleum Co. v. Cities Service Gas Co., 358; U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73, in-dealing with the same Kansas order with which we are here concerned, said:
“ * * * The Act recognizes the rights of the parties to set rates by individual contract and abrogates none of the usual contract rights except for the reviewing powers granted the Commission upon hearing. * * * (255 F.2d at 864.)
******
« * * * jn present case, as in the Mobile case, no hearing has been held to determine the propriety of the filed rate. When the United-States Supreme Court struck down-the Kansas order, there was no longer a valid order which could modify the contract rate, and the contract rate was the rate effective on June-7, 1954. See Natural Gas Pipeline Co. of America v. Federal Power Commission, supra.” (255 F.2d 865.) (Emphasis supplied.)
Support for the proposition that the Natural Gas Act is not inconsistent with agreements between the parties for repayments in the event certain increases in rates are held void is found in Natural Gas Pipeline Co. of America v. Harrington, 5 Cir., 1957, 246 F.2d 915, certiorari denied 356 U.S. 957, 78 S.Ct. 992, 995, 2 L.Ed.2d 1065. Therein recovery was sustained for the difference between the contract rate and the price paid under order of the Oklahoma Corporation Commission, which order was subsequently held to be invalid, as was the Kansas. Ilf! order here.
The Supreme Court, in holding that the Natural Gas Act does not give the right to gas companies to abrogate their contract obligations and increase at will their price of gas by filing new rate schedules, subject only to the FPC’s approval under § 4(e) (15 U.S.C.A. § 717c (e)), stated in United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., supra, 1958, 358 U.S. 103, 113-114, 79 S.Ct. 194, 200:
“ * * * This concern [protection of the public from excessive rates as well as the financial stability of natural gas companies] was surely a proper one for Congress to take into account in framing its regulatory scheme for the natural gas industry, cf. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 603 [64 S.Ct. 281, 88 L.Ed. 333], and we think that it did .so not only by preserving the ‘integrity’ of private contractual arrangements for the supply of natural gas, [United Gas Pipe Line Co. v. Mobile Gas Service Corp.] 350 U.S. [332], at 344 [76 S.Ct. 373, at 380, 100 L.Ed. 373] (subject of course to .any overriding authority of the Commission), but also by providing in § 4 for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review.”
Appellant has cited cases dealing with the Interstate Commerce Commission as .authority for the proposition that “it would destroy the purpose of the Interstate Commerce Act to permit a court to reach behind the rate on file with the Commission and collaterally revise the rate properly on file with the Commission”, stating that this doctrine has been followed without deviation and citing Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 1907, 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553; T. I. M. E., Inc. v. United States, 1959, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952. The answer to that attempt to draw a parallel between the Interstate Commerce Act and the Natural Gas Act is found in Mobile, supra, at pages 338 and 339 of 350 U.S., at page 378 of 76 S.Ct., where the Supreme Court said:
“In construing the Act [the Natural Gas Act], we should bear in mind that it evinces no purpose to abrogate private rate contracts as such. To the contrary, by requiring contracts to be filed with the Commission, the Act expressly recognizes that rates to particular customers may be set by individual contracts. In this respect, the Act is in marked contrast to the Interstate Commerce Act, which in effect precludes private rate agreements by its requirement that the rates to all shippers be uniform, a requirement which made unnecessary any provision for filing contracts. See Armour Packing Co. v. United States, 209 U.S. 56 [28 S.Ct. 428, 52 L.Ed. 681], The Commission in its brief recognizes this basic difference between the two Acts and notes the differing natures of the industries which gave rise to it. The vast number of retail transactions of railroads made policing of individual transactions administratively impossible; effective regulation could be accomplished only by requiring compliance with a single schedule of rates applicable to all shippers. On the other hand, only a relatively few wholesale transactions are regulated by the Natural Gas Act and these typically require substantial investment in capacity and facilities for the service of a particular distributor. Recognizing the need these circumstances create for individualized arrangements between natural gas companies and distributors, the Natural Gas Act permits the relations between the parties to be established initially by contract, the protection of the public interest being afforded by supervision of the individual contracts, which to that end must be filed with the Commission and made public.” (Emphasis supplied.)
Inasmuch as there has been no hearing before the FPC to determine the lawfulness of the rates specified in the contracts between the parties, and no orders have been made by the FPC approving, rejecting or in any way affecting such rates, the “integrity” of the private contractual arrangements between the parties, as referred to by the Supreme Court in Memphis, supra, remains unaffected. The action of the District Court here has preserved that integrity.
Appellant’s contention that the doctrine of res judicata is applicable cannot be maintained as the FPC issued no orders and made no determinations. Appellant’s further claim that the trial court usurped the power of the Courts of Appeals under § 19 of the Act (15 U.S.C.A. § 717r as amended) is for the same reason without merit.
Affirmed.
. Order No. 174 was subsequently amended pertinent to this appeal. . - by Nos. 174-A' and 174-B in matters not
. Apparently the court here has reference to the contract stipulated as being representative of all three contracts.
. § 22. “The District Courts of the United States * * * shall have exclusive jurisdiction of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order thereunder. * * *»»
. § 5. This section provides in part: “Whenever the Commission, after a hearing had upon its own motion or upon complaint * * * shall find that any rate * * * is unjust * * * the Commission shall- determine, the just and reasonable rate * * * and shall fix same by order * *
. § 19. This section provides for review of a -Commission order, after rehearing •by the Commission, in a United States Court iof Appeals. '
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer: |
songer_appnatpr | 0 | 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.
BIG LAKE OIL CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6449.
Circuit Court of Appeals, Third Circuit.
Feb. 18, 1938.
Rehearing Denied April 19, 1938.
Edgar J. Goodrich, of Washington, D. C., and S. Leo Ruslander, of Pittsburgh, Pa., for petitioner.
James W. Morris, Asst. Atty. Gen., and Sewall Key and L. W. Post, Sp. Assts. to Atty. Gen., for respondent.
Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges.
THOMPSON, Circuit Judge.
This is a petition for review of a decision of the Board of Tax Appeals determining a deficiency in the petitioner’s income tax for 1927. The issue is whether the amount of $598,571.01, the agreed fair market value of certain shares of common stock received by the petitioner, should be included in the petitioner’s taxable income for 1927. The determination of this issue is dependent upon whether the shares were received by the petitioner in 1927 or in some prior year.
The shares of stock were acquired by the petitioner under the following circumstances: The petitioner and others, hereinafter referred to as the producers, were engaged in producing and selling petroleum oil from wells in Reagan county, Texas. In prder to procure access to pipe lines by which to transport the oil to market, the petitioner and the producers, in a contract dated October 22, 1924, agreed to sell to Marland Oil Company, hereinafter referred to as Marland, or its nominee, all the oil they should produce up to an agreed maximum amount. Marland agreed to organize Reagan County Purchasing Company, Inc., hereinafter referred to as Reagan, and to provide the necessary working capital for Reagan by the purchase of its preferred stock at par. This stock was to be retired out of the profits of the company. Marland was to receive 51 per cent, of the common stock. The petitioner and the producers were to share the remaining 49 per cent, temporary certificates for which were to be issued in the name of the petitioner for one-half and in the names of the producers jointly for the other half. The final several ownership of the 49 per cent, was to be determined in accordance with the terms of a separate agreement between the petitioner and the producers. This agreement was evidenced by a letter dated October 19, 1924, in which it was agreed that the division be made among the petitioner and the producers as soon after December 1, 1926, as convenient, based proportionately upon the amount of oil which each should deliver towards the daily quota of 20,000 barrels during a test period from December, 1925, to December, 1926. In a contract dated November 24, 1924, the petitioner and the producers agreed to sell to Reagan, and Reagan agreed to purchase, a maximum of 20,000 barrels of oil daily. Reagan likewise agreed to provide the necessary pipe lines. On January 2, 1926, an escrow agreement was executed which provided that the temporary certificates issued in the names of the petitioner and the producers be deposited with the escrow agent, and that the shares of stock represented by the certificates could not be sold, assigned, or transferred (except to Marland, the petitioner, or to the producers) so long as any of the preferred stock had not been retired. The certificates were deposited with the escrow agent on March 12, 1926.
During the test period the petitioner and •the producers each delivered more than 10,--000 barrels of oil daily; thus entitling the petitioner to one-half of the 49 per cent, of common stock and the producers to one-half. The- last remaining preferred stock was retired and the escrow was terminated in January, 1927. The petitioner received a certificate for 2,450 shares, free of restrictions in March, 1927; the shares having an agreed fair market value of $598,-571.01. The petitioner did not report any income from the receipt of these shares for 1927 or for any prior year. The Commissioner determined that the petitioner received the shares in 1927.
Section 213 of the Revenue Act of 1926, c. 27, 44 Stat. 9, 23, requires that all items of gross income shall be included for the taxable year in which received by the taxpayer. Stoner v. Commissioner of Internal Revenue, 3 Cir., 79 F.2d 75, certiorari denied Helvering v. Stoner, 296 U.S. 650, 56 S.Ct. 309, 80 L.Ed. 462; Taylor v. Commissioner of Internal Revenue, 7 Cir., 89 F.2d 465; United States v. Safety Car Heating Co., 297 U.S. 88, 95, 56 S.Ct. 353, 356, 80 L.Ed. 500. Until 1927, when the escrow was terminated, the petitioner not only lacked either actual possession or control, but the number of shares to which it would ultimately be entitled was dependent upon future tests and the shares themselves were burdened with restrictions until and if Reagan earned sufficient profits to retire the preferred shares. It is our opinion that the petitioner realized no income pending determination of the true and ultimate ownership and that this did not occur until 1927.
The decision of the Board of Tax Appeals is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_initiate | A | 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.
Bobby Ray KINES, Plaintiff, Appellant, v. John DAY, et al., Defendants, Appellees.
No. 84-1425.
United States Court of Appeals, First Circuit.
Argued Oct. 1, 1984.
Decided Feb. 5, 1985.
G. Richard Shell, Boston, Mass., with whom Nonnie S. Burnes and Hill & Barlow, Boston, Mass., were on brief, for plaintiff, appellant.
Roberta Thomas Brown, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendants, appellees.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and WEIGEL, Senior District Judge.
Of the Northern District of California, sitting by designation.
WEIGEL, Senior District Judge.
Bobby Ray Kines, an inmate at the Massachusetts Correctional Institute in Walpole, brought this Section 1983 action challenging the constitutionality of the prison’s “Publishers Only Rule”. The Rule limits the sources from which prisoners may receive reading material. The district court decided that the Rule did not on its face violate the First Amendment and limited trial to the question of the constitutionality of the Rule as applied. Evaluating the evidence on that basis, the district court held Kines’ challenge to the Rule as applied was not ripe for decision and did not present a justiciable controversy.
We affirm.
I.
The MCI-Walpole Publishers Only Rule has been in effect since December 14, 1979. Its central provision is that “[a]n inmate may receive hardcover, softcover and newspaper publications only from the publisher, from a book club, from a book store or news store.” 103 WAL 650.04(4.1). The Rule provides for a limited exception: “The Superintendent or his designee may, under special circumstances, approve soft cover books to enter, after inspection, via visits.” 103 WAL 650.05(5.2). Prison regulations also limit prisoners to receiving one package of personal property per month. 103 WAL 403.08(B)(3). This limit applies to packages containing books and magazines, as well as other forms of personal property. Inmates are allowed to subscribe to newspapers and magazines, apparently without limit.
Inmates in the general population at MCI-Walpole have access to an institutional library with a general (non-law) collection of 4,000 to 5,000 books, four daily newspapers, three weeklies, one monthly, and 27 magazine subscriptions. The institution librarian testified that inmates can also make written requests for books not available in the library and that she undertakes to fill such requests by borrowing from the Walpole Public Library and other libraries in the region.
Library records show that Kines was in the library nine times between December 1983 and March 1984. The librarian recalled that Kines had inquired after particular books and that she told him the library did not have them. Kines declined to fill out a request slip for those books although the librarian informed him that he could do so.
At trial Kines listed a number of books he wanted that were not in the institution library. Some appear to be out of print. There was no showing that the listed books were unavailable from the outside libraries.
There was also testimony that friends had sent books to Kines through a bookstore and that some were' delivered. In addition, Kines was once allowed to receive two paperback books on woodworking that had been brought by a visitor.
II.
In rejecting Kine’s challenge to the Publishers Only Rule as written, the district court correctly held that the Rule does not on its face violate the First Amendment. The Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1971), compels this conclusion. In Bell the Court upheld a “publishers only” rule in place at the New York Metropolitan Correctional Center. The Court acknowledged that “convicted prisoners do not forfeit all constitutional protections” but noted that “[t]he fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights.” Id. at 545-46, 99 S.Ct. at 1877-78 (citations omitted). The Court further noted that prison administrators “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 546-47, 99 S.Ct. at 1877-78.
In examining the publishers only rule before it in Bell, the Supreme Court considered such factors as: (1) The security risks associated with hardcover books (they can be used to secrete contraband); (2) the content-neutral operation of the rule; (3) the availability of other sources for written works, including the institution library; and (4) the brief terms of confinement for most inmates at the Metropolitan Correctional Center. The Court concluded that the publishers only rule challenged in Bell was reasonable as to time, place and manner and necessary to further significant governmental interests. See Id. at 552, 99 S.Ct. at 1881. '
While there are differences between the MCI-Walpole Publishers Only Rule and that upheld in Bell, the analysis employed by the Supreme Court in Bell is nonetheless applicable. Although the rule considered in Bell applied only to hardback books, and the decision specifically emphasized the security risks associated with hardbacks (441 U.S. at 550-51, 99 S.Ct. at 1880-81) many of these risks are posed by paperbacks as well. See Cotton v. Lockhart, 620 F.2d 670, 672 (8th Cir.1980) (“[Rjeceipt of softcover as well as hardback books poses a substantial security problem[.]”). In light of the deference accorded prison administrators under Bell, we must conclude that the MCI-Walpole Rule serves a significant government interest in internal security.
Similarly, the fact that Bell involved a pre-trial detention center rather than a prison does not distinguish it from the present case. The decision in Bell did note the brief periods of incarceration for the inmates in question as a factor that mitigated the deprivation caused by the challenged rule. 441 U.S. at 552, 99 S.Ct. at 1881. However, in the present case, as in Bell, the more important mitigating factor is that “there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient.” Id. at 551, 99 S.Ct. at 1881. In addition to having an institutional library, as did the inmates in Bell, inmates at MCI-Walpole have available a procedure for requesting books from other libraries. Moreover, the MCI-Walpole Rule provides on its face for exceptions when paperbacks are brought in by visitors.
The district court was also correct in its determination that the MCI-Walpole institutional order limiting inmates to receiving one package per month did not render the Publishers Only Rule invalid on its face. The order might be significant in determining whether the Publishers Only Rule is constitutional as applied, if it were shown that the order limiting packages, in combination with the Publishers Only Rule, significantly restricts inmates’ access to reading material. Without such a showing, however, the one package per month restriction does not distinguish the Rule in this case from that upheld in Bell.
III.
A determination that a rule is not unconstitutional on its face does not foreclose challenges to its actual operation. An inmate may sue if an otherwise valid rule is being applied to him in an unconstitutional manner. However, challenging a rule as applied often requires more specific allegations of harm than are necessary to test facial validity. A constitutional challenge to a rule as written may constitute a case or controversy appropriate for adjudication in an Article III forum even without a showing of specific or immediate harm. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). However, once the rule has been adjudged constitutional on its face there is no presumption of harm. To present a justiciable claim a “plaintiff ... must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979).
In other words, a challenge to a rule or statute may be ripe for, adjudication on the question of facial constitutionality and yet not be ripe for adjudication on the question of constitutionality as applied. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 121 & n. 50, 92 S.Ct. 2294, 2306 n. 50, 33 L.Ed.2d 222 (1972) (upholding noise control ordinance but reserving decision on constitutionality of possible applications); Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961) (upholding ordinance requiring licensing of films prior to public exhibition) and Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968) (invalidating same ordinance as applied); Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952) (upholding New York statutory scheme for identifying and removing subversive school teachers) and Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (invalidating portions of same statutory scheme as applied). Although Kines’s challenge to the constitutionality of the MCI-Walpole Rule as written was justiciable, once that challenge was correctly denied, the justiciability of Kines’s “as applied” challenge presented a separate question.
As the court below observed:
Absent proof of circumstances of actual denial of access to identified published materials, this court cannot reach the constitutional issue posed by plaintiff ____ Plaintiff has never applied to the Superintendent for permission to receive an out-of-print book, unobtainable from the publisher, from an alternative source.
Opinion, May 4, 1984, at 6.
In this case, the evidence before the trial court was not sufficient to show that the Rule as applied violated Kines’ constitutional rights. Speculation, rather than solid evidence, would have been the only basis for any such conclusion. Therefore, the district court was correct in concluding that Kines’ constitutional claims based upon application of the Rule were not ripe for decision. As the Supreme Court noted in Bell, in adjudicating the constitutionality of a publishers only rule, “ ‘we [are] called upon to balance First Amendment rights against [legitimate] governmental ... interests.’ ” 441 U.S. at 552, 99 S.Ct. at 1881 (quoting Pell v. Procunier, 417 U.S. 817, 824, 94 S.Ct. 2800, 2805, 41 L.Ed.2d 495 (1974) and Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2582, 33 L.Ed.2d 683 (1972)). Any decision maker would be foolhardy to undertake such a delicate task without a fully developed record. The district court properly declined appellant’s invitation to speculate.
The judgment of the district court is AFFIRMED.
. The book Poems of Mao Tse Tung was excluded, while two others in the same package were admitted and received by Kines. The basis for exclusion was not clear. Kines has raised no claim that Prison Authorities have engaged in censorship.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_indigent | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's rights as an indigent were violated?" 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".
ABINGTON HEIGHTS SCHOOL DISTRICT, Appellant, v. SPEEDSPACE CORPORATION, Appellee.
No. 82-3199.
United States Court of Appeals, Third Circuit.
Argued Sept. 29, 1982.
Decided Nov. 17, 1982.
Joseph P. Lenahan, (argued), Lenahan & Dempsey, Scranton, Pa., for appellant.
Oldrich Foucek, III, Thomas C. Sadler, Jr., (argued), Butz, Hudders & Tallman, Allentown, Pa., for appellee.
Before ALDISERT and HIGGINBOT-HAM, Circuit Judges and MEANOR, District Judge.
Hon. H. Curtis Meanor, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
MEANOR, District Judge.
On June 1, 1976 a fire occurred upon premises owned by the plaintiff-appellant. This diversity action was begun on June 27, 1979 naming appellee Speedspace Corporation, a California corporation, and Universal Manufacturing Corp. as defendants. The complaint sought damages arising out of the fire. It asserted that Speedspace had negligently designed and constructed the elementary school building in which the fire took place and that Universal had supplied defective fluorescent light ballasts.
After some difficulty in effecting service upon it, Speedspace appeared and moved to dismiss upon the ground that as a California corporation having been dissolved on December 31, 1978, under the law of that state it was no longer amenable to suit. In May, 1980 the district court, relying upon Ray v. Alad Corp., 19 Cal.3d 22, 560 P.2d 3, 136 Cal.Rptr. 574 (1977) .held that, under the law of California, once a certificate of dissolution is filed, corporate existence ceases and there is no longer amenability to suit.
On the heels of this ruling, the plaintiff moved for reconsideration, contending that it had just discovered that prior to dissolution Speedspace had been a subsidiary of Potlach Corporation and that the dissolution may have been a “merger” between Potlach and its subsidiary. Plaintiff did not move to add Potlach as a defendant. Reconsideration was denied, on the ground that imposition of liability upon Potlach as the parent or successor could not be accomplished by re-instituting the complaint against Speedspace, a “non-entity for the purpose of suit.”
Plaintiff attempted to appeal the above rulings, but the appeal was dismissed on April 24,1981 for want of a final judgment, since the case remained open as to Universal. Subsequently, Universal settled and secured a dismissal, thus rendering final and appealable the previous entry of judgment in favor of Speedspace.
We believe that the district court misread Ray v. Alad Corp. That case did not involve the question whether a dissolved corporation remained subject to suit. The defendant there, Alad II, had purchased the assets of the dissolved Alad I, without assuming any liabilities pertinent to the product liability claim advanced by plaintiff arising out of his use of a product manufactured by Alad I. Alad II simply continued the business of Alad I. Under these circumstances, the Supreme Court of California imposed successor liability upon Alad II with respect to product liability arising out of its predecessor’s manufacture. In that case the California court was not confronted with an attempt to sue the dissolved Alad I. The remarks of the court on which the district court relied did not go to the question whether, under California law, a dissolved corporation was susceptible to being sued. Those remarks, rather, were directed to the futility of collection after dissolution, liquidation and distribution. This futility, in turn, played a part in the policy decision to place product liability upon a successor corporation which had purchased only assets without assuming liabilities.
Rule 17(b), F.R.Civ.P. provides in pertinent part: “The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.” Hence, we must turn to California law to determine whether Speedspace, though dissolved, remains subject to suit on account of an asserted pre-dissolution tort. The pertinent provisions of the applicable California statute are set forth below.
In our judgment the result in the matter before us is controlled by North American Asbestos v. Superior Court, 128 Cal.App.3d 138, 179 Cal.Rptr. 889 (1982). There, personal injury claimants brought suit against a dissolved Illinois corporation. Illinois law provided that a dissolved corporation could be sued within two years of dissolution. The suits before the California Court of Appeal had been brought more than two years following the date of dissolution. The plaintiff, therefore, argued that California law should apply. Although the Court rejected the application of California law and applied Illinois law instead, in discussing section 2010 of the California Corporation Code it stated:
It is clear that the California survival law does not apply to suits against dissolved foreign corporations. California Corporations Code section 2010 provides that ‘(a) corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it .... ” It also provides that “[n]o action or proceeding to which a corporation is a party abates by the dissolution of the corporation or by reason of proceedings for winding up and dissolution thereof.” Thus, there is no time limitation for suing a dissolved corporation for injuries arising out of its pre-dis-solution activities.
If section 2010 applies to foreign corporations as well as to domestic corporations, then application of California law would permit these lawsuits to continue. However, section 2010 does not apply to a foreign corporation. North American Asbestos, 128 Cal.App.3d at 144, 179 Cal.Rptr. 889.
In light of the language quoted above, we hold that under California law, Speedspace, as a dissolved corporation, is subject to suit arising out of its pre-dissolution activities, with the only time bar being that of an applicable general statute of limitations.
The judgment under review will be reversed and the matter remanded for proceedings consistent with this opinion. Costs taxed in favor of appellant.
. Ray v. Alad Corp. is consistent with our decision imposing successor liability in Knapp v. North American Rockwell Corp., 506 F.2d 361 (3d Cir.1974).
. Section 2010 of the California General Corporation Law provides:
(a) A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it and enabling it to collect and discharge obligations, dispose of and convey its property and collect and divide its assets, but not for the purpose of continuing business except so far as necessary for the winding up thereof.
(b) No action or proceeding to which a corporation is a party abates by the dissolution of the corporation or by reason of proceedings for winding up and dissolution thereof.
. To date, plaintiff has not attempted to amend to add Potlach Corporation as a defendant. If such a motion is made promptly upon remand, we direct that it be granted. Questions of successor liability, relation back and the statute of limitations can be resolved after Potlach is properly joined and served.
At oral argument counsel for appellant, in response to a question from the court, stated that he was representing the interests of a subrogated fire insurance carrier. Attention is called to the real party in interest provisions of rule 17(a) F.R.Civ.P. See United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949) and Virginia Electric & Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78 (4th Cir.1973).
Question: Did the court rule that the defendant's rights as an indigent were violated?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_appbus | 1 | 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.
DAVIS ELLIOTT INTERNATIONAL, INC., Appellant, v. PAN AMERICAN CONTAINER CORP.
No. 82-1531.
United States Court of Appeals, Third Circuit.
Argued March 11, 1983.
Decided May 2, 1983.
Daniel B. Pierson, V (argued), Pierson, Cameron & Morris, P.C., Philadelphia, Pa., for appellant.
James W. Johnson (argued), William H. Black, Jr., Hecker, Maginnis, Rainer & Brown, Philadelphia, Pa., for appellee.
Before SEITZ, Chief Judge, and HIGGINBOTHAM and SLOVITER, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Plaintiff appeals from the district court’s sua sponte entry of summary judgment for the defendant, entered before responses to discovery requests were filed, without notice to the parties that disposition on the merits was being considered, and without a hearing. Because the district court’s action departed from the orderly procedures required and contemplated by the Federal Rules of Civil Procedure, we reverse.
Plaintiff Davis Elliott International, Inc. (Davis), an exporter of goods to foreign countries, sued Pan American Corp. (Pan American), alleging that it had contracted with Pan American, a freight forwarder and carrier, to ship hardware to plaintiff’s customer in Nigeria; that Pan American represented that the goods would be containerized; that Pan American failed to containerize the goods; and that as a result merchandise was lost and plaintiff sustained damages of $18,000. The complaint alleged common law breach of contract or, alternatively, a violation of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300-15 (1976 & Supp. V 1981). Federal jurisdiction was predicated on diversity of citizenship. Defendant denied the substantive allegations of the complaint, and interposed 26 affirmative defenses including the one year statute of limitations set forth in COGSA, 46 U.S.C. § 1303 (1976).
A month after the answer was filed, the district court filed a Pre-trial Report and Order, which set forth the status of settlement negotiations and directed the parties to submit Pre-trial Memos and Proposed Findings of Fact and Conclusions of Law. Plaintiff’s Pre-trial Memo was due approximately two weeks from the date of the Order and defendant’s was due one week thereafter. Shortly after those documents were filed, plaintiff filed a Brief in Support of Liability and defendant filed a Memorandum in Support of the Applicability of the Carriage of Goods by Sea Act. Plaintiff represents that these briefs, which the parties agreed to file, were requested by the court in aid of settlement discussions. Brief for Appellant at 9. It is undisputed that there were two pre-trial conferences in addition to telephone communications with the district court relating to possible settlement. The parties also filed discovery requests. Defendant sought documents and plaintiff filed a Motion for Letters Rogatory. There were no substantive responses to these discovery requests. No motion for summary judgment was filed, nor were the parties advised that the district court was considering summary judgment. Nonetheless, shortly after the filing of the briefs, the district court entered a judgment in favor of the defendant and against the plaintiff, and in the accompanying memorandum opinion held that plaintiff’s claims are covered by COGSA and are also time barred by its application. Davis Elliott International, Inc. v. Pan American Container Corp., 546 F.Supp. 1068 (E.D.Pa.1982).
Neither the order nor the opinion of the district court states under which provision of the Federal Rules of Civil Procedure judgment was entered. It is apparent that judgment could not have been a dismissal for failure to state a claim or a judgment on the pleadings since the court considered matters, such as the bill of lading, which were outside the pleadings. We therefore construe the order as one granting summary judgment. In its opinion, the district court stated that “[t]he parties agree that they have concluded their presentation of the case by the pleadings, memoranda filed by them and that there is no further evidence to be presented to the court and the matter is ripe for adjudication.” Id. at 1069. Appellant disputes this statement and we find nothing on the record to support it. Indeed in reading plaintiff’s brief filed in the district court in support of its theory of liability, it is apparent that plaintiff believed the case was not ready for adjudication since that brief referred to “what Plaintiff intends to prove at trial”, App. at 41a; and stated that the plaintiff intended to file a motion asking defendant to produce a “legible reproduced facsimile” of the bill of lading, App. at 53a.
The procedure followed by the district court in this case is almost identical to that which it followed and which was disapproved in Bryson v. Brand Insulations, Inc., 621 F.2d 556 (3d Cir.1980), where we reversed its entry of pretrial judgment. In Bryson also, the district court had stated that the parties had agreed to submit the case on the pleadings, a statement this court rejected after a review of the record. Id. at 558-59.
In Bryson, in language equally applicable here, we commented on the necessity of giving notice to the parties under Fed.R. Civ.P. 56. Judge Hunter, speaking for the court, stated:
A summary judgment procedure under Fed.R.Civ.P. 56 has its own protections against unwarranted pretrial dismissal of an action. Rule 12(b) requires that “all parties ... be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Preterm, Inc. v. Dukakis, 591 F.2d 121, 134 (1st Cir.); cert. denied sub nom. Baird v. Pratt, 441 U.S. 952, 99 S.Ct. 2181, 60 L.Ed.2d 1057 (1979); Sims v. Mercy Hospital of Monroe, 451 F.2d 171, 173 (6th Cir.1971). To exercise the right to oppose summary judgment, a party must have notice. Here, however, no notice was given. Although the court may dismiss the action at its own instance, it must first provide Bryson an opportunity to oppose an entry of summary judgment against him.
Id. at 559.
Here, as in Bryson, plaintiff “had no prior knowledge that the court was considering judgment on the pleadings or summary judgment.” Id. Here, as in Bryson, “[wjithout notice, [plaintiff] had no reasonable opportunity to present to the court material relevant to a Rule 56 proceeding.” Id. Here, as in Bryson, “[b]ecause the procedure of Rule 56 requiring an opportunity to present pertinent material, which presumes notice to the party so that he may take advantage of the opportunity, was not followed, the entry of judgment must be reversed.” Id.; see also Crown Central Petroleum Corp. v. Waldman, 634 F.2d 127 (3d Cir.1980).
Defendant relies on United States v. Fisher-Otis Co., 496 F.2d 1146 (10th Cir.1974), to support its contention that notice and hearing were not required in this case. That case is inapposite because the parties there had agreed to submit the particular legal issue to the court for resolution on the basis of stipulated facts. Id. at 1151-52. In this case, the parties did not submit any legal issues for resolution but only in aid of settlement.
It remains for consideration only whether there is any state of facts on which plaintiff could conceivably recover. Plaintiff concedes that if COGSA were applicable to this transaction the statute of limitations would bar its claim since it did not file suit until approximately 16 months after the arrival of the goods in Nigeria. We thus examine plaintiff’s factual contentions (which it has not had an opportunity to present in verified form) to ascertain whether they might provide a basis for recovery.
COGSA was enacted in 1936 as part of an international effort to achieve uniformity and simplification of bills of lading used in international trade. See Union Ins. Soc'y. v. S.S. Elikon, 642 F.2d 721, 723 (4th Cir.1981). Its provisions govern the responsibility and liability of carriers, shippers and their underwriters. All bills of lading or other similar documents of title which are “evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade” are subject to the provisions of COGSA. 46 U.S.C. § 1300 (1976). The term “carriage of goods” refers to the period from loading the goods onto the ship until they are discharged from the ship. 46 U.S.C. § 1301(e) (1976). The statute does not, by its own terms, apply to the pre- and post-loading stages. See 46 U.S.C. § 1311 (1976). The carrier and shipper may agree “as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by sea.” 46 U.S.C. § 1307 (1976).
In its district court brief, plaintiff proposed to prove that it had advised Pan American of its customer’s specific request for containerization and the reasons for this request, that it had entered into an agreement with Pan American under which Pan American agreed to perform containerized shipping services for the goods, that plaintiff relied on the defendant’s promise to containerize, that therefore plaintiff arranged for the drop shipment of goods to defendant’s warehouse in two-ply cardboard boxes instead of export crates or export packaging, and that Pan American’s failure to containerize the goods before they were loaded resulted in the injury for which it claims recovery. Plaintiff contends that Pan American’s undertaking to containerize constituted a valid contract covering preloading activities to which COGSA is inapplicable.
The district court rejected plaintiff’s argument because one of the provisions of the bill of lading covering the goods “provided for . .. incorporation [of COGSA] throughout the period that the goods were in custody of defendant,” which included the preloading period. 546 F.Supp. at 1070.
Plaintiff argues that the bill of lading referred to was issued unilaterally and after the goods were already on board, and that therefore the language in the bill of lading incorporating COGSA throughout the entire period, which was relied on by the district court, constituted an attempt by defendant to change the pre-existing contrary bilateral agreement between the parties. Plaintiff explains its failure to object to this provision, when it finally received the bill of lading, on the ground that this provision was illegible, and the district court apparently agreed. Davis Elliott International, Inc. v. Pan American Container Corp., 546 F.Supp. at 1070.
By its terms, COGSA applies to the preloading stage only if the parties so agree. If plaintiff proves its version of the facts, the parties never agreed to apply COGSA to the pre-loading stage. Therefore, we are not persuaded that the case relied on by the district court, Miller Export Corp. v. Hellenic Lines, Ltd., 534 F.Supp. 707 (S.D.N.Y.1982), even if applicable, should govern this situation.
We cannot conclude at this preliminary stage that plaintiffs legal theory has no possibility of success. It must be examined in light of the factual development.
For the foregoing reasons, we will reverse the judgment for defendant and remand for further proceedings.
. Because of our disposition we do not address plaintiffs additional argument that Pan American’s failure to containerize the goods constituted an unreasonable “deviation” would deprive a carrier of the benefit of its contractual limitations of liability. See generally Friedell, The Deviating Ship, 32 Hastings L.J. 1535 (1981).
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_timely | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" 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".
UNITED STATES of America and Hillary E. Goode, Special Agent, Internal Revenue Service, Plaintiffs-Appellants, v. Seymour SCHWARTZ, as President of Carson’s of Atlanta, Inc., and Carson’s of Fort Lauderdale, Inc., et al., Defendants-Appellees.
No. 72-1222.
United States Court of Appeals, Fifth Circuit.
Nov. 13, 1972.
Scott P. Crampton, Meyer Rothwacks, Asst. Attys. Gen., Tax Div., Dept, of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Julian M. Long-ley, Jr., Asst. U. S. Atty., Atlanta,. Ga., Charles E. Anderson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for plaintiffs-appellants.
Samuel Appel, Atlanta, Ga., for defendants-appellees.
Before TUTTLE, BELL and AINS-WORTH, Circuit Judges.
TUTTLE, Circuit Judge:
The United States and Hillary E. Goode, Special Agent, Internal Revenue Service, appealed from the order of the trial court dismissing their petition to enforce an Internal Revenue summons against Patricia Long, bookkeeper, and Seymour Schwartz, president, for the production of certain described books and records of Carson’s of Atlanta, Inc. and Carson’s of Fort Lauderdale, Inc. The trial court dismissed the petition on the ground that “the Government seeks a second inspection of the documents listed in its summons but declines to comply with Sections 7605(b) of the Internal Revenue Code of 1954 and with the requirements of United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964).
Section 7605(b) of the Internal Revenue Code of 1954, dealing with the requirements imposed upon the Internal Revenue Service when it seeks a second inspection of a taxpayer’s books of account provides as follows :
“Restrictions on examinations of taxpayer.
No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.”
The requirements of United States v. Powell, supra, as they relate to the present ease, will be discussed below. Essentially, they deal with the requirement of a showing that the information sought by the summons was not within the Government’s possession.
The factual setting before the trial court at the time of its dismissal of the petition was formed by affidavit and counter-affidavit by Special Agent Goode for the United States and Mrs. Long and Mr. Appel, Counsel for Appel-lees, for the appellees, together with oral testimony given by the Special Agent at the hearing for motion to dismiss. Although some of the affidavits are ambiguous, it is clear that the following facts are undisputed on the record. During the latter part of 1969 an examination of the corporate records of the two Carson corporations was being conducted by Special Agent Goode and other agents of the Internal Revenue Service. During that time the agents had been given “free access to all of its records” which continued until counsel was employed at which time counsel demanded that Special Agent Goode “list the documents he wished to examine”. Special Agent Goode refused to do this and thereupon counsel advised the Special Agent that respondent’s records would not be furnished him.
Thereupon, the special agent issued a summons which covered only the following items:
“(1) All Paid Invoices
(2) Cash Disbursement Journals
(3) All Cancelled Checks and Bank Statements.”
Upon refusal of appellees to comply with the said summons it was judicially enforced by an order of the district court on June 17, 1970. This order provided:
“Such examination shall continue from day to day until completed.”
Subsequently, Carson’s bookkeeper, Mrs. Long, was ill for several months. But on March 4, 1971, she testified with regard to the tax liabilities of Carson’s of Fort Lauderdale, Inc., and on March 11, 1971, she gave testimony with regard to the tax liability of Carson’s of Atlanta, Inc. Then, according to the affidavit of Mr. Goode, which was not disputed, the following transpired:
“Your affiant asked her to review an invoice and advise if Carson’s, Inc. had paid the invoice. She replied that the corporation had paid the invoice. The invoice represented a payment for the personal benefit of the corporation president. Your affiant next asked Patricia Long if the corporation president had reimbursed the corporation for the expenditure. She replied that she could not answer the question without an examination of the daily proof journals, in addition to the sales journal she had in front of her. She explained that some cash sales had not been entered on the corporation records as sales but were entered on the records as recoveries of bad debts and she would have to check those entries back to the daily proof sheet to answer the question.”
The parties are in disagreement as to what then transpired.
Mr. Goode’s affidavit says:
“An agreement was reached between all persons present that Internal Revenue Agent Hudson and your affiant would go to the office of Carson’s of Atlanta, Inc., on Friday, March 12, 1971 and extract only the pages from the daily proof journal that Mrs. Long would need to answer the question, and that Mrs. Long would come back to the Internal Revenue office on Monday, March 15th and complete her testimony.”
On the other hand, Mr. Appel, counsel for appellee, by his affidavit, states:
“Mrs. Long informed Special Agent Goode that the daily proof journals would have to be examined to determine the answer to such questions [the question as to whether the corporation president had repaid the amount to the corporation]. After discussion concerning the best method for accomplishing such an examination, Mr. Goode insisted that Mrs. Long review the daily proof sheets and furnish him with answers to a list of questions which he would submit concerning receipt of payments by respondent corporations. At that point, deponent states that respondents were advised that such request was unreasonable and unduly burdensome in its demand and would cause undue interference with the conduct of respondent’s business.
The enforcement proceedings, Civil Action #15230 resulted because of such refusal.”
The trial court did not resolve the question whether a mutual agreement had been made by Mr. Goode and Mrs. Long and her counsel to reconvene on March 15th, as stated in Mr. Goode’s affidavit. Although this is not directly rebutted in any affidavit on behalf of appellees, Mr. Appel’s affidavit having been executed on the 17th of August, 1971, and Mr. Goode’s having thereafter been executed on the 23rd of August, Mr. Appel implies that there was no agreement about any further production of documents. Nevertheless, it is not disputed that, as stated by Special Agent Goode in his affidavit:
“On Friday, March 12, 1971, at 8:20 a. m. Attorney Appel called your affiant and stated that he would advise Patricia Long not to testify to facts that required her to go to the daily proof journal since that journal was not included in the court order of June 16, 1970.” (Emphasis supplied.)
Thereafter, Special Agent Goode issued a summons to Mrs. Long and Mr. Schwartz, requiring them to appear and produce the following documents: (1) daily proof journals used by the above corporations for recording cash sales, credit sales, cash receipts and bad debt recoveries.- (2) All subsidiary and source documents necessary to support and explain the aforementioned documents in connection with determining the tax liability of this taxpayer. (3) Certain payroll checks (not relevant to this inquiry).
On March 29, 1971, Mrs. Long and Mr. Schwartz appeared, but each refused to testify or to produce any of the books, records or other documents described above. Thereupon the United States and Special Agent Goode filed the proceedings with which we are here concerned.
Additional facts which developed upon the hearing are that Special Agent Goode, who was in charge of the investigation, testified that he did not examine or inspect the “daily proof journals,” but that on several occasions Mrs. Long had traced certain cash sales to certain daily journals. Agent Goode was not able to testify of his own knowledge that none of the other agents made any other or further examination of the daily proof journals, although Mrs. Long’s affidavit does contain the following statement, which conflicts with any idea that all 4,000 sheets g were readily available or spread out for the inspection of the agents in the offices of the corporation:
“Upon later investigation, I found that the daily proof journals for Carson’s of Atlanta were all located in the basement of the corporation’s office in Atlanta, Georgia. The proof journals for Carson’s of Fort Lauderdale are located in Fort Lauderdale with the exceptions of the journals for the year 1967, which cannot be located.”
Thus, the sum of it all is that the special agent was engaged in his original investigation, which had once been terminated by counsel for the company’s president and bookkeeper; a court order was obtained requiring the bookkeeper, Mrs. Long, to appear and produce certain records other than the “daily proof journals”; after the investigation showed certain payments by the corporations on behalf of the president and other officials of the companies, the agents were faced with a prima facie ease of irregularity or distortion of the companies’ income; in order to give the companies an opportunity to rebut this inference, Mrs. Long was asked whether Mr. Schwartz and the other officers had reimbursed the companies. She replied that she could not answer without referring to the daily proof journals, because such reimbursements were sometimes treated as “Cash Sales” (no explanation having been given why they were so treated) and they appeared on the daily proof journals but then were carried on to the permanent books of record in a lump sum for the day.
In order to answer Special Agent Goode’s questions relative to the ad-vanees to officers, Mrs. Long said they would have to go the daily proof journals; when Mr. Goode and Mrs. Long were unable to arrive at a mutually agreeable time and place to inspect these daily journals, counsel for Mrs. Long called off any inspection of these particular books since “he would advise Patricia Long not to testify to facts that required her to go to the daily proof journal since that journal was not included in the court order of June 16th, 1970;” thereupon, Goode went to the district court a second time, and sought enforcement of a summons which, for the first time, included the “Daily Proof Journals” — the summons with which we are now concerned. It is to be remembered that the original order for the production of the books that were adequate to show the irregularities, contained the following language:
“Such examination shall continue from day to day until completed.”
Mrs. Long objected, by answer, on the grounds that this second subpoena would be a “second inspection” of the books of the taxpayer and, as such, it was prohibited by Section 7605(b) of the Internal Revenue Code of 1954.
(b) Restrictions on examination of taxpayer. — No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer's books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.” 26 U.S.C.A. Section 7605(b)
In support of her position, in which Mrs. Long claims the taxpayers’ privilege as excusing her from responding and producing books for a “second inspection”, Mrs. Long stated in her affidavit that all the books and records were made available to Mr. Goode and the other agents, including a number of references to the daily receipts journals (but see comment above) although they were not covered by the original summons. If that is the posture she wishes to take, then she clearly shows that the privilege to see them was abruptly withdrawn after she made the suggestion that they were the only (although abnormal) source of information to exculpate the officers from a prima facie ease of improper disbursements of corporate funds.
Either this is a failure of Mrs. Long to comply with the first order, if she wishes to include these daily proof journals among the books “inspected” the first time (since that order directed that the books made available from day to day until such examination was “completed”) ; or there was never a “first inspection” in the sense in which the term is used in the statute, because the investigation had not been completed under the court’s order to continue it from day to day and the need for the particular books is not a part of the agents’ inquiry, but is for the purpose of enabling the bookkeeper to answer the one simple question of whether the officers had reimbursed the companies; or, if this summons is construed as a “second inspection” which we think it was not, then, in all reason, it must be held that the “second inspection” requirement was satisfied when Mrs. Long “requested” this reference to the daily proof journals (the second inspection). By any common sense approach, this statement of Mrs. Long that she could tell the special agents whether these payments had been refunded by the corporate officers only by reference to these daily journals constituted a “request” that the journals be consulted in order that, if repayments had been made, she could testify to this fact and the officers and the companies would be exculpated.
In view of the commissioner’s statutory duty to “cause officers or employees of the Treasury Department to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax. . . .”, 26 U.S.C.A. Section 7601, and to examine records and data and to require persons liable for taxes and others to give testimony and produce records relevant thereto “for the purpose of ascertaining the correctness of any return . . . determining the liability of any person for any internal revenue tax ... or collecting any such liability,” 26 U.S.C.A. Section 7602, it is clear that the limitations contained in 7605(b), supra, must be liberally construed to permit the Commissioner to carry out these duties imposed by law as stated in deMasters v. Arend, CA 9, 313 F.2d 79. There the Court of Appeals for the Ninth Circuit said:
“These grants of power [Section 7601 and 7602, supra] are to be liberally construed in recognition of the vital public purposes which they serve [citing Falsone v. United States, 205 F.2d 734, 742 (5th Cir. 1953)]; the exception stated in Section 7605(b) is not to be read so broadly as to defeat them [citing Application of the United States, 246 F.2d 762, 765 (2nd Cir. 1957)]. A limited construction of Section 7605(b) is also supported by the law’s general antipathy to the erection of barriers to the ascertainment of truth [citing Application of Magnus, 299 F.2d 335, 337 (2nd Cir. 1962), McMann v. SEC, 87 F.2d 377 (2nd Cir. 1937)], and the policy against judicial intervention in the investigative stage of tax matters because of the danger of undue delay in the collection of the revenues [citing Enochs v. William Packing Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962)].”
We think that the statement in the statute “Only one inspection of a taxpayer’s books of account shall be made for each taxable year” is to be read in pari materia with the first clause of the Section: “No taxpayer shall be subjected to unnecessary examination or investigations”. This seems to be the original purpose of the statute which was initially enacted as Section 1309 of the Revenue Act of 1921. See United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112, for a discussion by the Supreme Court of the legislative history dealing with the matter.
It is not clear from appellees’ brief precisely how they would construe the Section, but it seems apparent that for the court to construe this statute as contended for by them, an agent or special agent could not see the same books more than once during a continuing investigation without following the procedure of giving written notice for each day’s “look” at the books. We do not believe the use of the word “inspection” in Section 7605(b), as contrasted with the words “unnecessary examination or investigations” can be so restricted as to mean that there is ap “inspection” every time the agent or special agent looks at a book of account of a taxpayer. The word “inspection” must, in all reason, have some relation to the activities of the agents in making the examination authorized under the statute. The meaning seems to have been well understood by the district court in connection with this taxpayer at the time of its first order enforcing the summons, for there the court directed that “such examination shall continue from day to day until completed”. Certainly the trial court could not have intended that while such examination was continuing it would be necessary for the Commissioner of Internal Revenue or his delegate to give a notice in writing under Section 7605 (b) of each daily need to inspect any of the books or records of these companies.
What happened here is that without having made any “inspection” of the set of books or, rather, file of loose leaf pages called daily proof journals, although, during the course of the continuing examination, the agents traced items to certain of these pages, the witness who was subject to subpoena and was undergoing this continuing examination, was asked a question which she stated she was unable to answer without referring to these daily proof journals. Thereupon the special agent said, in effect, “Well, let’s have them”. Thereupon, because counsel said these particular documents were not named in the original order to enforce the first summons, the witness could not be questioned with respect to matters which she could answer only by reference to these records. This amounts to nothing more than a clear failure of the witness to comply with the original order of the court, requiring her to continue to testify from day to day until the examination was completed. If it was necessary for her to obtain the answer to the inquiries made by Mr. Goode by going to records of the company, which had not thus far been subpoenaed, then she was at liberty to do so. Rather than doing this she, and subsequently her counsel, cast the transaction in the form of a demand by Mr. Goode of the right to “inspect” the daily proof journals.
Even assuming there had been such a demand, initiated by the special agent, it is clear that there had not been any first “inspection” in the sense in which the word is used in the statute. It is clear that the trial court’s order, touching upon the books actually mentioned in that order, provided for a day to day inspection of those records. Thus, when in order to exculpate the taxpayer and its official from a prima facie case of distortion of income, the bookkeeper said she could answer only by reference to the daily proof journals, this amounted in fact to a tender of the journals to the special agent for that purpose. At the very least, it could be turned around into a request by the agent for access to these journals to enable Mrs. Long to continue with her deposition. Such a request would not be a demand ior a second “inspection”.
The district court seemed preoccupied with the thought that it was such a simple matter for the Internal Revenue Service to give a written notice that it was futile to have this litigation over such a refusal by taxpayers’ representative to make books available. It is to be noted, however, that the statute speaks of notifying “the taxpayer in writing” and “after investigation” that “an additional inspection is necessary”. Thus, it is not a perfunctory letter-writing job. Moreover, if this became necessary for every day of inspection or every request for a new set of journals during a continuing investigation, the administration of the tax laws would become a shambles, once an investigation of a taxpayer’s true tax liability commenced.
It is significant that the Internal Revenue Service does not treat the giving of a notice required under Section 7605(b) as a perfunctory matter, it deals with the matter of a second inspection on the assumption that it relates to an inspection following the closing of an examination by the agents. In such situation the Internal Revenue Service has issued regulations providing that there shall be no re-openings except:
“1. There is evidence of fraud, malfeasance, collusion, concealment or misrepresentation of a material fact; or
2. The prior closing involved a clearly defined substantial error based on an established Service position existing at the time of the previous examination ; or
3. Other circumstances exist which indicate failure to reopen would be a serious administrative omission.” See Rev.Proe. 68-28, 1968-2 Cum,Bull. 912, Section 4.01.
The Revenue procedure also provides that the notice to the taxpayer required by Section 7605(b) must be signed by the Regional Commissioner. If each “look” by the agents of books of a taxpayer must be authorized only after such a notice, issued after investigation where evidence of one of the three itemized circumstances above referred to has been found, it is clear that litigation arising under this section could easily frustrate the completion of an investigation into even the simplest corporate affairs. We think this is not contemplated by this statute.
Although there were different circumstances before the court in United States v. Giordano, 419 F.2d 564 (8th Cir., 1970), nevertheless, we think that the standard of construction of this section of the statute must be one that “could not possibly and reasonably lend itself to a construction that would preclude the Government from making at least one meaningful examination of the books of account for the years involved”, 419 F.2d 564, 567, without the necessity of having a written notice given to the taxpayer for each days’ look at the books.
So, too, the Court of Appeals for the Second Circuit, in National Plate and Window Glass Company v. United States, 254 F.2d 92, although dealing with an initial examination that was very short, nevertheless, stated the proper principle when it said, “The cursory examination of the taxpayer’s records on February 28, 1957 was not shown to have completed the investigation: it did not constitute an ‘inspection’ within the meaning of this statute”, 254 F.2d 92, 93.
It will be noted that both of these courts held, in effect, that there had not been a first “inspection”, so as to require the statutory notice before the second inspection of the books.
In United States v. Crespo, 281 F.Supp. 928, 933 (DMd 1968), the trial court equated the “inspection” dealt with in this section with an investigation. The court there said “Similarly, the fact that a revenue agent has seen a cash book, journal or ledger once does not mean that he may not need to see it again for a different purpose.” The court went on to hold that when an investigation has not been completed, such examination is not a second inspection within the meaning of the statute requiring written notice.
We agree with this concept of the meaning of the word “inspection”, rather than a meaning that would make it necessary for the Internal Revenue Service to conduct an investigation each time there had been one look and determine that it was necessary to furnish a written notice for a second look to complete an ongoing investigation.
The appellees here also undertake to support the trial court’s order of dismissal on the ground that the Government failed to show that the information sought by the summonses was not already in the Government’s possession. We conclude that the trial court’s determination that there was no sufficient showing on this point to satisfy the requirements of the United States v. Pritchard, CA 5, 1971, 438 F.2d 969, is clearly erroneous. The affidavits as quoted above, together with the testimony of Mr. Goode at the hearing, clearly demonstrated that the company’s bookkeeper herself did not have this information and that in order to get it reference would have to be made to what the trial court spoke of as 20,000 pages (testified to by the witness as 2,500 pages in Atlanta and 1,500 pages in Fort Lauderdale) to be able to answer his question. This is clearly sufficient to show that the information was not in the possession of the Government.
The judgment is reversed and the case is remanded to the trial court with directions that an order be entered requiring the enforcement of the summons.
. It appears that the daily proof journals carried cash items showing the source of the receipt of cash, which were then lumped together and posted in the journal in one lump sum. Thus, if cash repayments of amounts advanced to officers of the corporation were treated by the taxpayer as cash sales or recovery of bad debts, clearly an unusual practice and one which would distort the books of account, the identity of the source of the payment could not be determined from the journal, but could be determined only from the daily proof journal.
. Counsel, in liis motion to dismiss, referred to these as being 20,000 sheets and this figure was picked up by the trial court in its discussion of the case. In point of fact there would be one sheet for each business day for the years in question for each corporation.
. In a normally kept set of books of account it would not be necessary to ask such a question. Any such repayments would be reflected by entries in an Exchange account. Here, although there was such an account, there were no such entries.
. As implausible as is this manner of handling a refund of advances to officers (leaving absolutely no proof on the general books of account of the companies that such advances had ever been repaid) such was the method Mrs. Long said might have been followed.
. Mrs. Long testified that she was authorized to work with the special agent on behalf of the corporate taxpayers.
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_usc1 | 26 | 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.
HOCK et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 12991.
Circuit Court of Appeals, Eighth Circuit.
Dec. 27, 1945.
Paul Bakewell, Jr., of St. Louis, Mo. (John E. Cramer, Jr., of St. Louis, Mo., on the brief), for petitioners.
Helen Goodner, Sp. Asst, to the Atty. Gen. (Samuel 0. Clark, Jr., Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, and L. W. Post, Sp. Assts. to the Atty. Gen., on the brief), for respondent.
Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
The question on these petitiqns for review is whether the proceeds of a policy of insurance on the life of decedent, Edward H. Simmons, who died in 1937, are includi-ble in his gross estate under section 302(g) of the Revenue Act of 1926, as amended by section 404 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, pages 227, 231.
The applicable statutory provisions are:
“Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States—
******
“(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.”
Petitioners are the transferees of the assets of decedent’s estate, each having received a share of the assets in excess of the deficiency in estate tax which the Commissioner has determined and the Tax Court has sustained. Paul Bakewell, Jr., and St. Louis Union Trust Company are testamentary trustees of decedent’s estate. Dorothy Simmons Hock, his surviving daughter, named as irrevocable beneficiary in the policy of insurance, received the pro-, ceeds of the policy.
The policy of insurance, dated October 11, 1920, was issued upon the application of decedent in which he waived the right to change the beneficiary. The printed portions of the policy contained the following provisions:
“Beneficiary Clauses, (a) Unless otherwise specifically provided herein, upon the death of any beneficiary hereunder during the lifetime of the insured, any interest of such beneficiary shall revert to any surviving beneficiaries (in equal shares) then named hereunder, but if there be none to the insured or assigns.
“(b) The insured if of legal age may, whenever and as often as he likes, change any beneficiary designated herein by filing at the Home Office of the Company a written notice thereof duly executed and accompanied by the policy for record and endorsement of the change thereon by the Company. Unless the notice is so recorded and endorsed it shall not take effect, but when recorded and endorsed, whether the insured be then living or not, it shall relate back and take effect as of the date of the execution of said notice by the insured.
“(c) The interest of any beneficiary hereunder shall be subj ect to and 'bound by any assignment, pledge or release of this policy by the insured, dated either prior or subsequent to the nomination of such beneficiary.”
To conform to the surrender of the right to change beneficiary contained in decedent’s application for the policy, the insurance company stamped upon it the following clause:
“Beneficiary Clause. At the request of the insured in the application herefor the beneficiary provisions of paragraphs b and c, Section 9 hereof are hereby made inoperative and the beneficiary hereunder is made irrevocable. The insured reserves the right to make premium loans, to change the method of applying any dividends and to change the mode of paying premiums, but during the lifetime of the beneficiary, no other change may be made in the policy or value allowed without the consent of such beneficiary.”
The Tax Court sustained the action of the Commissioner in including the proceeds of the policy in decedent’s gross estate, on the ground that under the terms of the policy the decedent retained a possibility of reversion in the proceeds of the policy, since had he survived his daughter, the irrevocable beneficiary, her interest would have reverted to him or his assigns. It based its holding upon Helvering v. Hal-lock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, and upon the Treasury Regulations in force at the time of the trial in the Tax Court.
For reversal the petitioners assert that the Tax Court erred (1) in its interpretation of the insurance contract, (2) in holding that the Hallock case is controlling on the issue here, and (3) in applying the Treasury Regulations in force at the time of the hearing before the Tax Court instead of the regulations in force at the time of decedent’s death on October 16, 1937.
In support of the first assignment of error petitioners assert that there is a conflict between the printed beneficiary clause in the policy, which provides that the interest of the beneficiary dying in the lifetime of the insured shall revert to the insured or his assigns, and the provision endorsed on the policy, which provides that the insured may make premium loans or change the method of applying dividends and paying premiums, but that during the lifetime of the beneficiary no other change may be made in the policy without the consent of the beneficiary. In this situation, the petitioners say that the provision stamped on the policy must control the printed clause. We answer this argument, as did the Tax Court, by saying that there is no conflict between the printed and stamped provisions of the policy. There is no discoverable inconsistency in contracts of insurance appointing an irrevocable beneficiary and providing that upon the death of the beneficiary during the lifetime of insured the interest of the beneficiary in the policy shall revert to the insured.
Petitioners argue in support of the second assignment of error as follows: The appointment of the 'beneficiary of the policy having been irrevocable from the moment of its issue, the proceeds of the policy vested immediately in the beneficiary. The decedent as the insured under the policy, therefore, never owned any interest in the policy proceeds, and hence could not make and did not make a transfer of the proceeds of the policy during his lifetime. The decedent could not have a reversionary interest in property which he never owned. At most, he had only the hope or bare possibility that if he survived the beneficiary he might acquire an interest in property in which he had had no interest at any time during his life. From this interpretation of the policy petitioners argue that this case is ruled by decisions of this court (Walker v. United States, 8 Cir., 83 F.2d 103; Helvering v. Parker, 8 Cir., 84 F.2d 838) and of the Supreme Court of the United States (Lewellyn v. Frick, 268 U.S. 238, 45 S.Ct. 487, 69 L.Ed. 934; Chase National Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388; Bingham v. United States, 296 U. S. 211, 56 S.Ct. 180, 80 L.Ed. 160; and Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191), all of which came down before the decision of the Hallock case. Petitioners assert that the principles announced in the Hal-lock case have no application in the case of life insurance, since the Supreme Court was there dealing only with trust property under section 302(c) of the applicable revenue act. Aside from the fact that petitioners’ interpretation of the insurance contract ignores that part of it which provides that on the death of the beneficiary during the life of the insured the proceeds of the policy shall become payable to the insured or his assigns, the decisions of this and other circuit courts of appeals, following the Hallock case, have held that the principles there announced in respect to trust property are applicable in the case of life-insurance, and that the Bingham case and earlier decisions to the same effect, dealing with the proceeds of life insurance policies, are no longer law. Schultz v. United States, 8 Cir., 140 F.2d 945, 949; Bodell v. Commissioner, 1 Cir., 138 F.2d 553, 556, 150 A.L.R. 1262; Commissioner v. Washer, 6 Cir., 127 F.2d 446, 448, 449; Liebermann v. Hassett, 1 Cir., 148 F.2d 247; Schongalla v. Hickey, 2 Cir., 149 F.2d 687. The cases rule that where there exists in an insured the possibility of a reversion to him or his assigns of the proceeds of a policy of insurance (as where the policy provides for payment to the insured or his estate or assigns in the event of the prior death of the beneficiary), the transfer of the proceeds of the policy from the insured to the beneficiary, named in the policy takes effect only upon the death of the insured. And see Chase National Bank v. United States, supra, 278 U.S. 327 at page 339, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388; Goldstone v. United States, 325 U.S. 687, 65 S.Ct. 1323; Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108, 111, 65 S. Ct. 508; Commissioner v. Field’s Estate, 324 U.S. 113, 65 S.Ct. 511; Paul, Federal Estate and Gift Taxation, § 10.20.
Petitioners’ third assignment of error must also be denied. Prior to decedent’s death on October 16, 1937, Articles 25 and 27 of Regulations 80 provided:
“Art. 25. Taxable insurance — The statute provides for the inclusion in the gross estate of insurance taken out by the decedent upon his own life, as follows: (a) All insurance receivable by, or for the benefit of, the estate; (b) all other insurance to the extent that it exceeds in the aggregate $40,000.
“ * * * Legal incidents of ownership in the policy include, for example: The right of the insured or his estate to its economic benefits, the power to change the beneficiary, to surrender or cancel the policy, to assign it, to revoke an assignment, to pledge it for a loan, or to obtain from the insurer a loan against the surrender value of the policy, etc. The decedent possesses a legal incident of ownership if the rights of the beneficiaries to receive the proceeds are conditioned upon the beneficiaries surviving the decedent.”
“Art. 27. Insurance receivable by other beneficiaries. — The statute requires the inclusion in the gross estate of the decedent of the proceeds of any policy, or the aggregate proceeds of all policies, not receivable by or for the benefit of decedent’s estate, to the extent that such proceeds exceed $40,000, regardless of when the policy was or the policies were issued, if the decedent possessed at the time of his death any of the legal incidents of ownership.”
On March 18, 1937, following the decision of the Supreme Court in the Bingham case, the sentence “The decedent possesses a legal incident of ownership if the rights of the beneficiaries to receive the proceeds are conditioned upon the beneficiaries surviving the decedent” was struck out of the Regulations by Treasury Decision 4729 (C.B. 1937-1, pp. 284-288), which adopted as to insurance proceeds the principles announced in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L. Ed. 29, 100 A.L.R. 1239. The Supreme Court’s decision in the Hallock case came down in 1940, and the Treasury Regulations were amended to restore Article 25 of Regulations 80 to its original form. The amended regulation was in force at the time of the trial in the Tax Court. We think it was applicable in the present case in preference to the regulations, in existence at the time of decedent’s death, which fell with the Bingham case. I Merten’s Law of Federal Income Taxation, par. 3.25; Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 56 S.Ct. 397, 80 L.Ed. 528; Helvering v. Hallock, supra, 309 U.S. 106 at page 121, 60 S.Ct 444, 84 L.Ed. 604, 125 A.L.R. 1368, Note 8; Helvering v. Griffiths, 318 U.S. 371, 397, Note 49, 63 S.Ct. 636, 87 L.Ed. 843; Helvering v. Edison Bros. Stores, 8 Cir., 133 F.2d 575; Oberwinder v. Commissioner, 8 Cir., 147 F.2d 255.
The decision of the Tax Court is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_typeiss | A | 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.
James Edward WINGO, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 13187.
United States Court of Appeals Sixth Circuit.
May 31, 1957.
James Rutherford, Nashville, Tenn., for appellant.
Fred Elledge, Jr., and James R. Tuck, Nashville, Tenn., for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
PER CURIAM.
Appellant, in this proceeding under Section 2255, Title 28 U.S.Code, seeks to vacate judgment imposed in the U. S. District Court on the ground of prejudicial newspaper publicity during the overnight recess of the jury, during which the jurors separated and went to their respective homes. Briggs v. United States, 6 Cir., 221 F.2d 636, 638. Following a hearing in which appellant introduced the newspaper articles complained of but no other evidence on the issue, the District Judge dismissed the proceeding.
The question presented could have and should have been raised by motion for mistrial in the trial of the case in the District Court. No appeal was taken from the judgment on the verdict. Compare Briggs v. United States, supra; Krogmann v. United States, 6 Cir., 225 F.2d 220, 228. The provisions of Section 2255, Title 28 U.S.Code, cannot be used as a substitute for appeal. Sunal v. Large, 332 U.S. 174, 178-179, 67 S.Ct. 1588, 91 L.Ed. 1982; Ford v. United States, 6 Cir., 234 F.2d 835, 836.
The appellant is in custody under a state sentence, not the sentence in the federal court, which he is attacking in this proceeding. If the sentence under attack should be held invalid, it would not result in appellant’s release from confinement. The present proceeding is premature and will not lie. Duggins v. United States, 6 Cir., 240 F.2d 479.
The judgment is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_appnatpr | 0 | 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.
UNITED STATES v. CARPENTER.
No. 8300.
Circuit Court of Appeals, Seventh Circuit.
May 26, 1944.
Attorney Lewis L. Levin was appointed by this court to represent Carpenter on this appeal.
Appellant is now serving in the Army, having been paroled for such service.
Lewis L. Levin, of Chicago, Ill., for appellant.
Howard L. Doyle and Marks Alexander, U. S. Atty., both of Springfield, Ill., for appellee.
Before EVANS, SPARKS and MAJOR, Circuit Judges.
EVANS, Circuit Judge.
Appellant argues that a proper interpretation of the grammatical and structural composition of the statute (18 U.S.C.A. § 409) necessitates the conclusion that Congress meant to impose penalties for any of three separate classes or categories of crimes. It did not, however, mean to make a separate crime of every act described in each of the several classes or categories. In support of such theory, counsel points out that each category begins with the identical word “whoever” and is set off by semi-colons, whereas the several condemned acts within the respective categories are not so stated, merely being joined with the disjunctive “or” and separated by commas. 0
The statute reads (we add the numerals which appellant uses to designate his categories) :
“(1) Whoever shall unlawfully break the seal of any railroad car * * * or shall enter any such car with intent in either case to commit larceny therein; (2) or whoever shall steal or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any railroad car, * * * with intent to convert to his own use any goods or chattels * * *, or shall buy or receive or have in his possession any such goods or chattels, knowing the same to have been stolen; (3) or whoever shall steal or shall unlawfully take, carry away, or by fraud or deception obtain with intent to convert * * * any baggage, * * * or shall break into, steal, take, carry away, or conceal any of the' contents of such baggage, or shall buy, receive, or have in his possession any such baggage * * * shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both * *
It is counsel’s urge that the second and third counts, namely, for stealing and for receiving, are for but a single crime in that they are both covered by the one category, i. e., class (2), and therefore appellant has suffered two five year sentences for but one crime.
Appellant also stresses the phrase "in each case" as being indicative of Congressional intent to impose a sentence only upon each of the classes of acts outlined.
A second contention, which was the one involved in the habeas corpus proceedings, is that the charge of stealing and possessing does not define two crimes because only one criminal intent was involved. In other words, in all cases where there is a stealing, there is, per se, a possessing.
Counsel stresses the fact that the bill of exceptions, which was not consulted on the prior appeal because not duly filed, disclosed that appellant was not even at the site of the crime, but a block distant, and only by virtue of a conspiracy or by proxy could he be deemed to have participated in the stealing.
Appellant also contends that there is duplication of punishment in the imposition of a sentence on the conspiracy count, for the same evidence was used to gain a conviction on this count as was used to establish guilt under the first three counts.
The earnestness of counsel, the severity of the sentence, and the'parolement of appellant to service in the army, have all impelled us to re-examine this statute and the decisions.
We repeat the statute, but in skeleton form. It would seem that crimes were described therein as follows:
(1) break the seal enter
(2) (as to goods or chattels in interstate commerce) steal unlawfully take carry away conceal obtain by fraud or deception buy possess
(3) (as to any baggage) steal unlawfully take carry away obtain by fraud or deception.
Congress defined and penalized every conceivable form of act, every gradation of the process of .burglarizing interstate commerce, when it enumerated these many acts. It intended to make criminal amy act therein recited. If two of the acts in any category were disclosed, two crimes were committed. It would be different if the terms were synonymous or the acts, one within the scope, or partial scope of the other, but each defines an act of a different, nature. It is true that one who steals generally possesses, but the contrary is not inherently true.
Another possible explanation for the categorical structure of the section might be that one category relates to the stealing of interstate freight, a second to stealing of baggage, and the third, the initial steps of such larceny, i. e., entering a freight car.
We are unable to read the statute other than that Congress intended to make each and every separate act named, a separate crime. See Blockburger v. United States, 7 Cir., 50 F.2d 795; Id., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Carpenter v. Hudspeth, 10 Cir., 112 F.2d 126. If the construction seems harsh, it must also be appreciated that there is a vast difference between the maximum and the minimum sentence provision as there is a vast difference between the action and motives of different offenders. In the trial judge, there is lodged wide discretion, and if misjudgment results in too severe judgments, the accused may secure relief through executive clemency, as well as by parole.
Our problem is to construe the statute. In so doing, we cannot rewrite it, nor ignore the language which is clear.
The court is indebted to counsel appointed to represent appellant, for his earnest and devoted effort to aid the court.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_usc1 | 0 | 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.
UNITED STATES of America, Plaintiff-Appellee, v. Charles THOMAS, a/k/a Reginald Gardner, and Melvin Cooper, Jr., Defendants-Appellants.
Nos. 89-3423, 89-3508.
United States Court of Appeals, Seventh Circuit.
Argued May 29, 1990.
Decided July 9, 1990.
As Amended July 27, 1990.
Eric J. Klumb, Maxine A. White, Asst. U.S. Attys., Milwaukee, Wis., for U.S.
Charles 0. Blaha, Milwaukee, Wis., for Charles Thomas.
Debra J. Patterson, Wauwatosa, Wis., for Melvin Cooper, Jr.
Before BAUER, Chief Judge, FLAUM, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
PER CURIAM.
The district court departed upward from the applicable Guideline range in the sentencing of defendants Charles Thomas and Melvin Cooper. We find that the court did not provide adequate, detailed reasons for departure, and did not justify the extent of departure by linking it to the structure of the Guidelines. Accordingly, we vacate the sentences and remand for resentencing.
The sentences at issue arise out of two different convictions. The first arose when, in early November 1988, Milwaukee police officers stopped a car in which Charles Thomas was a passenger. Thomas, a convicted felon, was seen holding a handgun between his legs which he then dropped on the back seat floor of the car. Thomas was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) & 924(a)(2), but was released pending trial.
The second conviction arose out of events on April 9, 1989. On that date, a confidential informant told the Milwaukee Police Department that members of the Brothers of Struggle Gang (“BOS”) were using 2507A West Atkinson Avenue as a drug house to sell cocaine. The informant identified several members of the BOS gang, including defendants Cooper and Thomas, and stated that the members of the gang were heavily armed with sawed-off shotguns and automatic weapons. The informant reported that during the preceding week, he had observed Cooper at the house handling a TEC-9 pistol while another gang member held a shotgun and checked out potential drug customers. Finally, the informant stated that a lookout was normally stationed in the front window, armed with a sawed-off shotgun or automatic weapon.
Several police officers proceeded to the house in street clothes and an unmarked car. As the officers approached the house, they observed Cooper standing near the second floor window holding a sawed-off shotgun. Cooper was watching the officers and pointing the gun in their direction. The officers, with guns drawn, ordered Cooper to drop the gun. After a second warning from the officers, Cooper opened the window and threw the shotgun out. A few seconds later, Cooper threw a plastic bag from the window containing approximately 22.5 grams of cocaine.
After the officers called for additional assistance, they proceeded to the entrance of the upper unit. The officers forcibly entered the house where they found Cooper and Thomas sitting on the couch in the living room. The police searched the premises and seized an Intratec-9 semiautomatic pistol loaded with 27 rounds of ammunition, a silencer threaded to fit the pistol and boxes of ammunition for several types of weapons. The officers also seized drug paraphernalia, including a box for a gram scale, a hand sifter, a bottle of inositol (used as a cutting agent for cocaine), plastic bags, and other packaging material. The house was sparsely furnished and fit the Milwaukee Police’s drug house profile.
In June 1989, Thomas and Cooper were charged in a five-count superseding indictment. They were charged with possession of unregistered firearms in violation of 26 U.S.C. §§ 5861(b) and 5871, possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and use of a firearm in relation to a drug trafficking crime contrary to 21 U.S.C. § 924(c)(1). In addition, Thomas was charged with a second count (in addition to the November charge) of being a felon in possession of a firearm contrary to 18 U.S.C. §§ 922(g)(1) and 924(a)(1)(D).
Thomas pleaded guilty to one count of being a felon in possession of a firearm, the narcotics charge and the use of a firearm in relation to a drug trafficking crime. Cooper pleaded guilty to possession of an unregistered firearm, the narcotics charge and the use of a firearm in relation to a drug trafficking crime. Pursuant to a plea agreement, the government dropped the remaining charges.
The presentence report calculated Thomas’ base offense level for possession of cocaine with intent to distribute at 12. Thomas was being sentenced for more than one offense, so his offense level was increased by 2, for a combined offense level of 14. Finally, because Thomas accepted responsibility for all the offenses, his base offense level was decreased by 2, leaving the total offense level at 12.
Thomas’ criminal history consisted of two prior offenses, for which he received a score of 4. Thomas was on parole at the time, so he was assessed 2 additional points. Another point was then added because Thomas had been released from custody less than two years before the commission of the offenses for which he was being sentenced. His total criminal history score was thus 7, placing him in a criminal history category of IV. For an offense level of 12 and criminal history category of IV, the Guidelines indicated a sentencing range of 21 to 27 months. In addition, Thomas’ conviction for use of a firearm in relation to a drug trafficking crime, a non-Guidelines offense, carried a mandatory, consecutive, five-year term of imprisonment.
Cooper's base offense level for possession of an unregistered firearm was 12. He received a 1 point increase because the firearm was stolen and a 4 point increase because the firearm had an unregistered silencer. His criminal history category was I, yielding a sentencing range of 24 to 30 months. In addition, Cooper’s conviction for use of a firearm in relation to a drug trafficking crime carried a mandatory, consecutive, five-year term of imprisonment.
The two defendants were sentenced separately. At Thomas’ sentencing hearing, the government requested an upward departure of about 48 months based on his admissions that he was a member of a gang and had sold cocaine on occasions aside from the date of the charged offense. The government introduced evidence of the gang related activities and its dangers to the community. The court then made its findings:
I’ve talked about these guidelines in a lot of cases and this is just another example of their total inadequacy in addressing the serious problems in ... urban communities, [in] Milwaukee, [and] in our state. So I find, first of all, that the guidelines ... totally, completely underestimate the seriousness of this particular set of criminal charges....
Well, I intend to significantly depart from the guidelines. I think it’s a case that a message should be sent to others who are thinking about this kind of gang activity. A message should be sent to people who run drug houses and peddle this terrible stuff to others which is being used to destroy the lives of people. A message should be sent to people who possess these weapons of destruction. A message should be sent to gang members that very serious consequences will fall if you persist in that kind of activity. I mean, unless something is done here about this, we’re just going down the road to destruction.
And, Mr. Thomas, you’ve earned the sentence I’m going to give you here. Your prior convictions, being on parole, one thing after another.
Without further comment, the court sentenced Thomas to the maximum sentence on each count, all consecutive, totalling 30 years imprisonment. The departure on the Guidelines offenses was from a range of 21 to 27 months to a sentence of 25 years.
At Cooper’s sentencing hearing, the government asked for an upward departure of 24 to 30 months. The court incorporated its remarks made during Thomas’ hearing as reasons for also departing upward in Cooper’s sentence. In addition, the court based departure on the following statement:
I’m going to do what I think is the right thing to do in these cases. And here we have this very terrible situation, violent street gang, drug houses in the inner city which cause fear and intimidation and no regard to everybody else, the cocaine in the house, the arsenal of weapons.
Now, I don’t intend to give Mr. Cooper a sentence that is nearly as severe as the sentence I imposed on Mr. Thomas. Very significant difference is the fact that Thomas had a prior record.
Cooper was sentenced to a total of 15 years. The departure on the Guidelines offense was from a range of 24 to 30 months to a sentence of 10 years.
We are puzzled by the district court’s actions. The broad grounds on which a sentencing court may depart from the Guidelines are clearly established. “A sentencing court is not generally allowed to depart from a Guidelines sentencing range unless the court finds aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines.” United States v. Schmude, 901 F.2d 555, 558-59 (7th Cir.1990) (citing 18 U.S.C. § 3553(b)). The statements by the district court do not reflect an attempt to follow this statutory requirement: the court did not discuss the structure of the Guidelines and why they failed to reflect the aggravating factors in this case.
The district court’s statements in this case closely resemble those rejected as inadequate in United States v. Lopez, 875 F.2d 1124 (5th Cir.1989). In that case, the defendant was found with seven machine guns, four rifles, six shotguns and a .357 Magnum pistol, all concealed. The district judge, sentencing the defendant for only one count of possession of an unregistered firearm, departed upward, stating:
The guidelines themselves are weak and ineffectual with respect to this crime. It is apparent to the court that the calculations of the offense level, together with the criminal history category does not reflect the conduct in which the Defendant Lopez engaged, nor does it reflect, most importantly in the court’s view, the potential harm to the public.... The court believes that this defendant’s conduct presents a bigger picture of harm to the public and bigger picture of criminality than ... does the breakdown of points awarded and offense level.
The court concluded, “The guideline absolutely gives away this offense.” Id. at 1126. The Fifth Circuit vacated the sentence, holding that “a sentencing court’s personal disagreement with the guidelines does not provide a reasonable basis for sentencing.” Id. at 1127. “Without a more particularized rationale, we cannot gauge the reasonableness of this departure....” Id. The circuit court agreed that departure might be warranted under these facts, but held that to depart, the district court must find more particularized factors that had not been adequately considered by the Guidelines. The Fifth Circuit’s holding in Lopez, is applicable to this case. A finding by the district court that the Guidelines direct a sentence that is different than one the court would otherwise give is not grounds for departure.
By closely parsing the district court’s statements it is possible to discover three, more specific grounds for departure. First, it based its departure on a finding of the Guidelines’ “total inadequacy in addressing the serious problems in ... urban communities, [in] Milwaukee, [and] in our state.” That is, the court reasoned that the Guidelines did not adequately account for regional differences. The court also departed based on its feeling that a “message should be sent to others who are thinking about this kind of gang activity,” i.e., the Sentencing Commission failed to adequately consider the deterrent effect of punishment. Finally, the court discussed the specifics of the defendant’s gang activities, finding that these gang activities might indicate a recidivist tendency that is not reflected in the defendants’ criminal history categories or a potential for violence not normally associated with the crimes charged.
The first two grounds for departure are inappropriate. Courts are not free to base sentencing on purely local conditions such as the degree of violence in Milwaukee. “Congress sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.” Guidelines Manual at 1.2. Criminals in large urban areas should not be sentenced to longer terms than criminals elsewhere. In addition, sentencing based on locale is not based on the relevant conduct of the offender. See § 3B1.3; United States v. Missick, 875 F.2d 1294, 1302 (7th Cir.1989); United States v. White, 888 F.2d 490, 496 (7th Cir.1989). Courts are also not free to depart based on the need for general deterrence. See Lopez, 875 F.2d at 1126. It would be difficult to imagine a finding that the Sentencing Commission failed to adequately consider the general deterrent effect of the criminal law. See Guidelines Manual at 1.3 (Sentencing Commission’s discussion of deterrence). District courts must justify their departures by reference to factors particular to the defendant that the Guidelines inadequately considered.
Involvement in gang activities might provide more fruitful grounds for departure, but the district court insufficiently articulated reasons for departure based on gang affiliation. When deciding to depart, the district judge must “provide articulable reasons, of a type contemplated by the Act and the Guidelines, and based on a sufficiently sound factual foundation to justify a departure from the Guidelines.” United States v. Miller, 874 F.2d 466, 471 (7th Cir.1989). The court must state specific reasons for departing, preferably tying the reason for and extent of departure to a circumstance inadequately considered by a specific section or portion of the Guidelines. United States v. Carey, 895 F.2d 318, 325-26 (7th Cir.1990); United States v. Mendoza, 890 F.2d 176, 180 (9th Cir.1989). The factual contexts which departures have been upheld illustrate the type of factors envisioned by the Sentencing Commission. See, e.g., Schmude, 901 F.2d at 559 (departure because prior conviction for same offense not considered by § 4A1.3); United States v. Williams, 901 F.2d 1394 (7th Cir.1990) (departure because § 2B3.1(b)(2)(C) did not adequately consider the risk of harm arising from possession of a firearm while under the influence of drugs); United States v. Ferra, 900 F.2d 1057, 1061 (7th Cir.1990) (departure because defendant continued to sell narcotics after arrest). Absent a sufficient, particularized statement by the district court of the reasons for and extent of the departure, we must vacate the sentence and remand the case for the district court to satisfy the requirement. See, e.g., Ferra, 900 F.2d at 1064; Carey, 895 F.2d at 325.
At sentencing, the government offered evidence that the defendants were members of a violent street gang whose business was trafficking in illegal narcotics. The evidence strongly indicated that the BOS gang, of which both defendants were members, has contributed greatly to the urban drug and crime problems in the communities in which it operates. The government argued that this evidence warranted departure under § 5K2.9 for criminal purpose. This section states that “[i]f the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guidelines range to reflect the actual seriousness of the defendant’s conduct.” While the government failed to point to a specific offense that the charged crimes facilitated, the government argued that the possession of the firearms generally facilitated the gang’s violent mission.
The district court did not, however, say whether it accepted or rejected the government’s reasoning. It did not cite § 5K2.9 when giving its reasons for departing. Nor did it cite to any portion of the Guidelines, discuss the particulars of the Guidelines’ structure, or indicate the particular factors of this case that the Guidelines failed to consider. Moreover, a factual finding that gang activities are terrible is insufficient to support a holding that the Guidelines failed to adequately consider the effects of such activities. The Guidelines provide for enhancements or departures in many specific circumstances that might adequately consider the problems associated with gang activities. For example, departure is warranted where death or physical injury is a result of the crime. §§ 5K2.1 & 2. Criminal history categories are enhanced for defendants with prior convictions. § 4A1.1. Leaders of gangs can receive enhancements for playing an aggravating role in the offense under § 3B1.1. The simple statement that gang activity is terrible does not point to where the Guidelines insufficiently take the problems into account. The district court is obliged to provide specific, articulable reasons for departure, explaining why the Guidelines failed to adequately consider some aspect of this case, and none were provided here.
The significantly differing departures for Thomas and Cooper is also of some concern. The district court based its departure for Thomas on the fact that he had several prior convictions. These prior convictions, however, had already been accounted for in determining his criminal history category. The district court made no finding that the criminal history category inadequately reflected Thomas’ prior convictions. The government offers no basis for such a finding. It is well established that departure is warranted only where there is an “aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission_” 18 U.S.C. § 3553(b). See Schmude, 901 F.2d at 559 (prior conviction does not support departure because it was included in the criminal history category); United States v. Franklin, 902 F.2d 501 (7th Cir.1990). We fail to understand how the district court could base an upward departure on the existence of a prior criminal record with no finding that the Guidelines underestimated the seriousness of prior conviction.
Even if the district court had adequately stated its reasons for departure and we had found that the facts supporting the departure were not clearly erroneous, the district court would still have failed to give reasons justifying the extent of departure. Once the court has made the decision to depart, “the judge should compare the seriousness of the aggravating factors at hand with those the Commission considered.” Ferra, 900 F.2d at 1062. “Reasonableness [] implies that some effort must be made to fashion the degree of departure to correspond to the number and the nature of the factors which warrant departure.” Schmude, 901 F.2d at 560. “Unless there is discipline in departure, [] sentencing disparity will reappear,” and courts, therefore, should, where possible, seek to “link the extent of departure to the structure of the guidelines.” Ferra, 900 F.2d at 1062. The district court appears to have made no meaningful attempt to perform such a procedure. Indeed, before oral argument, the government acknowledged that the extent of departure was not adequately linked to the structure of the Guidelines and conceded that remand was necessary.
With respect to the extent of departure based on Thomas’ prior convictions, the Guidelines provide a specific mechanism for departing from the criminal history category. See § 4A1.3 (policy statement). Under this mechanism, “the courts [are to] use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable.” Id.; Ferra, 900 F.2d at 1062. Again, the district court did not make an attempt to determine which criminal history category was appropriate for Thomas.
We are distressed by the failure of the very able and experienced district court to follow the clear mandate of the Guidelines and of this Court. Judges are not free to reject the Guidelines out of hand, nor are they at liberty to impose personalized sentencing agendas. The Guidelines, over which there has been much scholarly debate, have been found to be a constitutional act of Congress and must be followed. The sentences are Vacated and the case Remanded for resentencing comporting with the Guidelines and our reflecting precedents. Circuit Rule 36 shall not apply-
. This is not to say that, on the evidence presented by the government, departure may not be warranted. Departure under § 5K2.9 for criminal purpose may be appropriate. Alternatively, the government urges on appeal departure under § 5K2.15, because it claims the gang violence amounts to terrorist activity. Departure could also be based on a ground not listed in § 5K2 such as a finding that the Guidelines did not adequately consider the greater potential for violent use of the firearms by gang members when acting in concert. We do not make such a determination; the district court is free to do so on remand.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_counsel2 | E | 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
GEBHART v. HUNTER.
No. 4091.
United States Court of Appeals Tenth Circuit.
Oct. 25, 1950.
Marvin Gebhart, pro se.
Lester Luther, U. S. Atty., Eugene W, Davi-s, Asst. U. S. Atty., and Malcolm Miller, Asst. U. S. Atty., all of Topeka, Kan., for appellee.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
PHILLIPS, Chief Judge.
This is an appeal from an order dismissing an application for a writ of -habeas corpus.
An indictment containing three counts was returned against Gebhart in the United States District'-Court for the District of Nebraska, Lincoln Division. The first count charged that Gebhart, on August 25, Í934, in such Lincoln Division, with a pistol which he held, put in feár- Frank M. 'Farr and Mayme Erickson, and thereby took -from them $1535.40 in money belonging to the First National Bank in Aurora, Aurora, Nebraska, a banking institution organized under the laws of the United States. The second count charged that Gebhart at the same time and place, in committing the offense charged in count one, did make an assault by the use of a dangerous weapon, to wit, a ¡pistol, upon Farr and Erickson, ■by then and there pointing such pistol at Farr and Erickson. ¡Count three charged that Gebhart at the same time and place in committing the offense charged in count one, did put in jeopardy the lives of Farr and Erickson by the use of a dangerous weapon, to wit, a pistol, which pistol Gebhart pointed at Farr and Erickson.
Count one charged a violation of 12 U.S.C.A. § 588b(a), and counts two and three charged violations of 12 U.S.C.A. § 588t>(b)
Gebhart was found guilty on each of the three counts by a verdict of a jury, and was sentenced to a term of 20 years on count one, 25 years on count two and 25 years on count three, the sentence on the first count to run concurrently with the sentences on the second and third counts, and the sentences on the second and third counts to run concurrently with each other.
Prior to the effective date of 28 U.S. C.A. § 2255, September 1, 1948, and in February, 1947, Gebhart filed in the sentencing court a motion to vacate the judgment and sentence on the second and third counts on the ground that when the sentencing court imposed its sentence on count one it exhausted its power to sentence and therefore the sentences on counts two and three were void. On March 19, 1947, the sentencing court entered an order denying the motion. On appeal that order was affirmed. 4The sentencing court and the ■Court of Appeals, Eighth Circuit, followed the former decisions of the latter court in Holbrook v. United States, 8 Cir., 136 F.2d 649, and Holiday v. United States, 8 Cir., 130 F.2d 988,
In the instant case the trial court denied the motion primarily on the ground that Gebhart had not sought the remedy provided by 28 U.S.C.A. § 2255
The grounds set up in the motion in the instant case were identical with the grounds set up for the motion filed in the Eighth Circuit in February, 1947. Since the precise issue here raised was ■adjudicated by the order of the sentencing court, affirmed by the Court of Appeals, Eighth Circuit, Gebhart is ¡barred from relitigating it in this court, under the doctrine of res judicata.
Moreover, we agree with the decision of the Eighth Circuit, that since counts two and three charged facts.’ Warranting the imposition of the greater punishment ¡provided for by 12 U.S.C.A. § 588b (b) and Gebhart Was found guilty on those counts, the concurrent sentences imposed on ¡counts two and three, although longer than the sentence imposed on count one, were valid. This court’s observation in the closing sentence of the opinion in Holbrook v. Hunter, 10 Cir., 149 F.2d 230, has no .application in the, instant case. There, each of the two counts of the indictment charged facts bringing the offense within 12 U.S.C.A. § 588‘b(b), and both sentences were imposed under that section. Here, the sentence on count one was imposed under 12 U.S.C.A. § 588b(a) and the sentences on counts two and three were imposed under 12 U.S.C.A. § 588b(b).
Affirmed.
. 1948 Revised Criminal Code, 18 U.S.C.A. § 2113.
. United States v. Gebhart, D.C., 70 F. Supp. 824.
. Gebhart v. United States, 8 Cir., 163 F.2d 962.
. After the decision by the court below in the instant case,' Gebhart filed a motion in the sentencing court under § 2255, supra, seeking an order vacating the sentences imposed on counts two and three. That motion was denied. See United States v. Gebhart, D.C., 90 F.Supp. 509.
. Holbrook v. Hunter, 10 Cir., 149, F.2d 230, 231; Fowler v. Hunter, 10 Cir., 164 F 2d 668, 669; Garrison v. Hunter, 10 Cir., 149 F.2d 844, 845; Strewl v. Sanford, Warden, 5 Cir., 151 F.2d 648; Goldsmith v. Sanford, Warden, 5 Cir., 132 F.2d 126, 127; Spaulding v. Sanford et al., 5 Cir., 142 F.2d 444; Orencia v. Overholser, 82 U.S.App.D.C. 285, 163 F. 2d 763, 765.
. Ward v. United States, 10 Cir., 183 F.2d 270, 272.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_genresp2 | I | 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.
SWETNAM v. EDMUND WRIGHT GINSBERG CORPORATION.
No. 192.
Circuit Court of Appeals, Second Circuit.
Argued Feb. 9, 1942.
Decided May 5, 1942.
Edward C. Weinrib, of New York City (Shaine & Weinrib, of New York City, on the brief), for plaintiff-appellant.
Duane R. Dills, of New York City (Dills, Muecke, Schelker & Levinson and Florence G. Brodman, all of New York City, on the brief), for defendant-appellee.
Before SWAN, AUGUSTUS ' N. HAND, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
This case involves an attempted pledge whereby the asserted pledgee seeks to comply with the traditional, common-law requirements of possession and still leave the asserted pledgor with sufficient access to the property to allow processing. The issue is presented by a plenary suit brought by a bankruptcy trustee appointed by the District Court for the Western District of Virginia, in which he seeks to set aside transfers of accounts receivable and merchandise during the four months prior to bankruptcy. The principal defense, offered is that the transfers were made pursuant to a valid pledge and are not preferences. The District Court upheld this defense with a considered opinion. 37 F.Supp. 546. We are constrained to disagree.
The bankrupt, the Deford Company, a West Virginia corporation engaged in tanning operations, entered into a factoring agreement in 1936 with defendant, Edmund Wright Ginsberg Corporation. Under this agreement defendant was to be the exclusive factor for Deford, in order to provide working capital. As security, the contract gave defendant a lien on all hides and leather, and provided that all accounts receivable arising from the shipment of pledged leather were to be assigned to defendant. In furtherance of the pledge agreement, provision was made for lease of the warehouses by defendant, for insurance in favor of defendant, for a custodian under the pledgee’s control, for reports. of various kinds, and for control over the persons to whom leather was sold and the methods of assignment of accounts.
During the period of the contract, advances from defendant to Deford amounted to something over $1,000,000. 'Yet the financial condition of Deford Was at all times precarious, and defendant knew at least as early as October, 1937, that De-ford was insolvent. At about that time defendant ceased advancing funds and processing soon stopped. Finished hides were still sold, however; and as late as April, 1938, negotiations concerning further advances were had between defendant and Deford. These fell through, and on July 20, 1938, Deford was adjudicated a bankrupt. The trustee seeks to recover $94,278.30, the adjusted amount of the accounts receivable assigned during the four months preceding the date of adjudication.
As the District Court remarked, the requirement that possession of pledged property must pass to the pledgee “is so well established in the law that it is not open, to discussion.” But, as the court also observed, “possession” is “not a self-expounding term.” In a case such as this, where the parties clearly tried-to come as close as possible to meeting the legal requirements of “possession,” yet leave the pledgor free to operate its business, it is necessary to examine closely the actual course of activity.
We may put to one side the provisions of the contract and the supervision of sales by defendant. All this cannot be finally decisive, even though it may be indispensable as a first step, in establishing possession. None of it hits the real purpose of requiring possession — notice to third parties that property apparently owned by the debtor is subject to a security interest. See 51 Yale L. J. 431; Irving Trust Co. v. Commercial Factors Corp., 2 Cir., 68 F.2d 864, 866. The crucial question is how well defendant and Deford signified to the world what property was and what property was not pledged.
The first, and most important, element is the nature of signs indicating that property on the Deford grounds was pledged to defendant. The Deford plant occupied approximately fifteen acres of land at Luray, Virginia, with thirty or so buildings scattered over the tract. At the entrance was a small sign warning that the property was private and belonged to the Deford Company. Numerous large signs, visible for some distance, also stated that the property was the site of the Deford leather plant. Of the many buildings on the grounds, five were leased to defendant — the hide house, three warehouses, and the warehouse office. On these buildings, usually only at one spot, not the most conspicuous, small brass plates, 16" by 4", reading “Edmund Wright Ginsberg Corporation, Factor for The Deford Company,” or “Edmund Wright Ginsberg Corporation, Factors,” were, placed. In one instance this sign was so placed on a door that whenever the screen was closed the sign was virtually invisible. There was also evidence that cardboard signs stating “All leather in this warehouse is pledged to Edmund Wright Ginsberg Corporation” had been put up on warehouses. They were removed, however, when the brass plates were put up. Apparently there were also some signs inside the buildings, but at best they would not be too valuable as notices to third parties; and even they were not too conspicuously placed. All in all, the notices were placed obscurely, were frequently vaguely worded, and were generally offset by the more noticeable indications of ownership by Deford.
Not even the attempted possession, apart from notice, comported with the traditional common-law rules. One of Deford’s employees was switched to defendant’s pay roll and made custodian of the pledged hides. But except for making some notations in a small notebook, he continued his work as before. All other activity continued as formerly, except as to actual sales, which had to be approved by defendant. Even though the custodian was given a set of keys to the leased buildings, three other sets remained in Deford’s hands; and although the custodian was supposed to unlock and lock the premises, it appears that he did so only when he was the first to arrive or the last to leave. There was also a small stamp, consisting of a circle around a cross, placed on each hide to indicate that the hide was pledged; but the stamp seems always to have been around the premises, and use of it appears to have differed only in that after the pledge arrangement every hide was stamped. Thus, the attempted legal shift of control was little more than a matter of lip service to the rules. Actually, business went on as before.
All the acts here recited are conceded by the parties in a well-presented case. The question becomes one of the legal consequences of these acts. There is no question but that pledge agreements which allow processing to continue are difficult to arrange. It is to avoid this difficulty that an act like the New York provision for notice of liens on merchandise, Personal Property Law, Consol.Laws c. 41, § 45, was passed. But no such provision exists in Virginia, and common-law rules must govern. Though there are no specific decisions in Virginia covering a pledge of the sort here, there is no indication that Virginia courts would not follow the universal rule. As good a statement of the authorities as any will be found in In re Merz, 2 Cir., 37 F.2d 1, certiorari denied Degener v. Boyd, 281 U. S. 738, 50 S.Ct. 333, 74 L.Ed. 1152. We are content to rest on that case as stating the common-law rule, and as covering this situation. Here in net effect the lendor’s possession was neither open nor exclusive. 2 Glenn, Fraudulent Conveyances and Preferences, Rev.Ed.1940, § 477.
Defendant seeks to rely on the Virginia Traders Act, set out in the margin, with which it sought to comply. A careful search of the Virginia authorities reveals no instance in which that statute has been held to obviate the necessity for possession. The purpose of the statute is to hit agency and consignment arrangements and undisclosed partners or backers. Southern Dairies v. Cooper, 4 Cir., 35 F.2d 439; 16 Va.L.Rev. 311. In fact, the courts have been criticized for extending the statute to instances where chattel mortgages and conditional sales had been recorded. See, generally, notes in 27 Va.L.Rev. 962; 14 Va.L.Rev. 496. If the statute goes this far, it might be argued that a pledgee both had to take possession and comply with the act. Compare Wood Preserving Corp. v. Coney Grocery Corp., 176 Miss. 406, 168 So. 864, where the court held otherwise under a similar statute, yet assumed for the sake of argument only that compliance with the statute would protect a “non-posses-sory pledge.” Seaboard Citizens’ Nat. Bank v. Spandorfer, 160 Va. 826, 170 S.E. 12, relied upon by defendant, only establishes affirmatively the applicability of the Traders Act to the situation there disclosed of a bank loaning money to an auto dealer who was to continue to sell cars; it does not establish the non-applicability of the law of pledge. Furthermore, in view of our discussion of the poor attempt at disclosure in this case, it seems unlikely that there was a sign “placed conspicuously at the house wherein such business [was] transacted.”
Defendant also seeks to rely .on disclosures of the factoring agreements in various credit agency reports. These substitutes for possession by pledgees have not been accorded legal recognition. And since the rule of possession does not rest on actual deception, but on the possibility of it, the fact that some of Deford’s creditors might have been on notice is irrelevant.
Finally, defendant argues that the assignments of accounts during the four months preceding bankruptcy relate back to the date of the agreement. This is clearly erroneous. In 1936, there was only an agreement to assign, and, as we have held, no valid lien upon the hides and leather. Hence until the accounts came into existence, no security could exist; and until actually assigned, the security interest did not exist. Okin v. Isaac Goldman Co., 2 Cir., 79 F.2d 317; In re Modell, 2 Cir., 71 F.2d 148. When the assignment was made, a preference was created. Under § 60, sub. b, Bankr.Act, 11 U.S.C.A. § 96, sub. b, this was voidable. Nor can the procedure followed be fairly assimilated to the taking of actual possession under an equitable pledge, for that never happened. Instead, Deford delivered possession to its vendees; and having thus created a new property in itself, by way of claim against the vendees, it assigned that to defendant. Thus fairly considered, there were two separate steps, not merely the one step of perfecting a heretofore imperfect pledge.
The judgment is reversed for the entry of judgment in favor of the plaintiff.
We follow Virginia, not New York, law, of course. Goetschius v. Brightman, 245 N.Y. 186, 156 N.E. 660; New York Trust Co. v. Island Oil & Transport Co., 2 Cir., 33 F.2d 104, 79 A.L.R. 1007.
“If any person transact business as a trader * * * and fail to disclose the name of his principal or partner by a sign in letters easy to be read, placed conspicuously at the house wherein such business is transacted, and also by a notice published for two weeks in a newspaper (if any) printed in the city, town or county wherein the same is transacted ; or if any person transact such business in his own name, without any such addition; all the property, stock, and choses in action acquired or used in such business shall, as to the creditors of any such person, be liable for the debts of such person.” Va.Code 1936, § 5224.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_genresp1 | 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.
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.
Candis O. RAY, trading as Candis O. Ray & Associates, Appellant, v. Senator William PROXMIRE et al.
No. 77-1522.
United States Court of Appeals, District of Columbia Circuit.
Argued March 23, 1978.
Decided July 31, 1978.
Certiorari Denied Oct. 30, 1978.
See 99 S.Ct. 326.
Appeal from the United States District Court for the District of Columbia.
(D.C. Civil Action No. 77-0259).
Bruce W. Haupt, Washington, D. C., for appellant.
Timothy A. Vanderver, Jr., Washington, D. C., with whom Donald A. Lofty, Washington, D. C., was on brief, for appellees.
Before WRIGHT, Chief Judge, and TAMM and ROBINSON, Circuit Judges.
PER CURIAM:
Appellant operates a tour and hospitality service catering to conventions and sightseeing groups in the District of Columbia. Appellee Ellen H. Proxmire is a central figure in a competing enterprise, Washington Whirl-Around, Inc., which in recent years has captured much of appellant’s business. Ms. Proxmire’s husband, the only other appellee, is the senior United States Senator from Wisconsin. Appellant brought suit in the District Court, contending that appellees had tortiously injured her through activities related to Whirl-Around. After a hearing, the suit was dismissed, with prejudice, on the ground that appellant’s complaint failed to state a claim upon which relief could be granted. Having closely studied the complaint, we find that, even given its broadest reading, it does not denote any legally actionable conduct. Consequently, we affirm.
I
One claim, implicating Senator Proxmire alone, must be dealt with in the context of the privilege constitutionally conferred upon Members of Congress. The complaint theorizes that the Senator libeled appellant and disparaged her business in a letter to Senator Cannon, Chairman of the Senate Select Committee on Standards and Conduct. The letter was in reply to an inquiry by Senator Cannon with regard to appellant’s charge that Senator Proxmire had arranged for Whirl-Around to make use of Senate rooms on its tours. The allegedly defamatory statement was that appellant’s business rivals “are obviously more competitive and more efficient than she is.”
Assuming, as we must in the context of a motion to dismiss, that appellant could prove all she avers, this facet of her suit cannot survive the Speech or Debate Clause. In responding to a Senate inquiry into an exercise of his official powers, Senator Proxmire was engaged in a matter central to the jurisdiction of the Senate, and “[t]he claim of unworthy purpose does not destroy the privilege.” There is no indication that he disseminated his letter to anyone whose knowledge of its contents was not justified by legitimate legislative needs. Nor is there any suggestion that the statement objected to intimated anything not reasonably spurred by the subject of Senator Cannon’s inquiry.
II
There are two other assertions against Senator Proxmire. One, previously mentioned, is that he arranged for use of Senate rooms by Whirl-Around’s clientele; the other is that he voted favorably to positions supported by its existing or potential customers in order to further Whirl-Around’s interests. These allegations might raise a difficult question with respect to immunity under the Speech or Debate Clause, but one we need not reach since we conclude that in no event could either provide the basis for suit by appellant.
As to the first, appellant alludes to a Senate rule supposedly prohibiting such uses of the rooms and to the proposition that governmental facilities should not be used for private gain at public expense. For the second, appellant invokes the criminal statute forbidding senators from accepting favors in return for influence on their official performances. Neither of these considerations provides appellant with a private cause of action nor serves to define the Senator’s duty of care in a common-law-tort cause of action.
The Supreme Court has enunciated the criteria determining whether a statute affords an individual right of action:
First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” . . . —that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Viewed in this framework, it is evident that the criminal statute in question safeguards the interests of the Nation, which might have a cause of action, but not those of appellant in her business pursuits. Nor does the legislative history of the statute suggest a purpose to create a private right of action. As the Court has held with respect to a quite similar statute, this legislation “is a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone.” We agree with the District Court that appellant has no privately-enforceable right under this penal provision.
And assuming without deciding that an internal rule of the Senate could ever give rise to a private cause of action, we are satisfied that none is conferred by that' adverted to here. Obviously the purpose of such a rule is at minimum to administer Senate facilities, and at most, to regulate one aspect of its members’ conduct. In each respect, interpretation and application of the rule is a matter not for the courts, but for the Senate; and if the rule was designed to impose a higher standard than the law of torts exacts, it is for the Senate, not us, to so declare. What we can say is that if the rule denies visitation to customers of one commercial enterprise, it could hardly have been intended to thereby protect the commercial interests of another. While we are sympathetic to the argument that taxpayers’ money should not be spent on maintenance of publicly-owned property to enable private companies to turn a profit, a violation of the rule is not a predicate for a lawsuit.
The same considerations lead us inevitably to the conclusion that neither the statute nor the rule delimits duties on the Senator’s part that can be enforced through a traditional tort cause of action. As a tour-business-person, appellant is not “ ‘a member of the class to be protected’ ” by these directives. Nor were they “designed to prevent the sort of harm to the individual relying upon [them] which has in fact occurred.” Indeed, Senator Cannon’s committee apparently decided that the practice complained of involves no breach of the rules. The judicial function is not implicated at all, for only in the Senate forum can observance of the rule be compelled.
Ill
Perhaps appellant’s strongest claim is unfair competition. The major allegation under that rubric is that Ms. Proxmire has utilized in Whirl-Around’s business the prestige and contacts enjoyed by a senator’s wife, and resultantly has enabled Whirl-Around to gain competitive advantages over appellant. We think, however, that this theory of action shares the fate of the others.
In a society encouraging aggressive economic competition, this court has recognized that the tort of unfair competition is a somewhat anomalous creature. Its scope has therefore been limited to three categories: passing off one’s goods as those of another, engaging in activities designed solely to destroy a rival and using methods themselves independently illegal. The case at bar does not fall within the first classification, and the second is intercepted by appellant’s complaint itself. There appellant does not so much as hint that the challenged conduct has as its purpose simply an effort to demolish her business; rather, she concedes in effect that it was “undertaken ‘with the legitimate purpose of reasonably forwarding personal interest and developing trade.’ ” The substance of what is alleged is that Ms. Proxmire wanted to make a bigger profit by capturing every potential customer, and that she must have realized that in doing so appellant would suffer grievously. That is not the same thing as acting with the motive of annihilating appellant’s enterprise.
That leaves only the third category — unlawful competitive mechanisms — and the insuperable difficulty there is that simple use of one’s status in society is not itself illegal. Appellant states that Whirl-Around secured entry to the vice-presidential mansion, the west lawn of the Capitol, State Department entertaining rooms and various rooms in the Senate office buildings. Because appellant could not match these arrangements, Whirl-Around could advertise “special tours” to “places normally inaccessible to other groups.” In like fashion, appellant says, Whirl-Around’s popularity grew partly because it could offer the opportunity to meet wives of governmental officials and to see their private homes. The key to Whirl-Around’s success thus assertedly was appellees’ fame and ability to “open doors.”
A hallmark of our way of life is the belief that personal gain should flow from individual ability and effort — not merely from perceived rank. The judge’s function, however, is limited to redress of legally-cognizable wrongdoing, and financial success does not become unlawful simply because it is aided by prominence; nor could it be, without locking the famous out of the economy. Even with the most conscientious endeavor not to trade upon personal repute, many will still treat celebrities specially, and their spouses should not be exiled from the business world just because the marital relationship might lead others to grant unique opportunities. Nor does acceptance of those opportunities flaunt any known rule of law, though without the celebrity’s well-earned stature they might never have been made available. Moreover, however reprehensible it might be through political influence to use public property for private gain, that evil cannot provide a basis for this private damage suit.
IV
Appellant suggests that because she was formally without counsel until oral argument of this appeal, we must construe her complaint with great liberality. We agree wholeheartedly that courts must always heed their responsibility to afford pro se litigants “every fair opportunity to present their case[s].” We are mindful, too, as the Supreme Court has instructed, that no complaint may be dismissed for failure to state a claim unless, after patient scrutiny and a liberal reading in the plaintiff’s favor, “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Appellant’s complaint has received at least that level of care, both in the District Court and here. It was dismissed not because appellant appeared pro se but because none of the factual allegations or inferences possibly deducible therefrom made out a cause of action against either appellee. Were there any plausible sug-gestión that appellant could do so now with counsel, we would remand to the District Court to afford that opportunity. But with all facts material to appellant’s complaint ostensibly before us, we see no occasion for extending the life of this litigation. The interest of those who are sued in having the matters resolved quickly, when justified, must not give way completely to our desire •to protect those who sue without counsel. Appellant has no doubt suffered injury, but not injury actionable at law. The complaints registered in this litigation may be matters for the Senate, but certainly not for the courts. Agreeing, then, as we must, that no claim has been stated upon which relief could be granted, the judgment of the District Court is
Affirmed.
. See Fed.R.Civ.P. 12(b)(6).
. Appendix to Brief for Appellant (App.) (fourth unnumbered page).
. E. g., Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).
. U.S.Const. art. I, § 6, cl. 1. In so concluding, we do not intimate a view as to whether the statement in question could be deemed actionable under general principles of the law of defamation.
. See Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583, 602-603 (1972).
. Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019, 1027 (1951).
. Compare Gravel v. United States, supra note 5, 408 U.S. at 625-626, 92 S.Ct. at 2627-2628, 33 L.Ed.2d at 602-603 and McSurely v. McClellan, 180 U.S.App.D.C. 101, 109, 553 F.2d 1277, 1285 (1976), cert. dismissed,-U.S.-, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978); see Doe v. McMillan, 185 U.S.App.D.C. 48, 566 F.2d 713 (1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 59 (1978), after remand from 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Hutchinson v. Proxmire, 579 F.2d 1027 (7th Cir. 1978).
. Closely related is an averment, which the Senator disputes, of a conflict of interest prohibiting him from voting on legislation that would benefit Whirl-Around’s clients. See also Transcript of District Court Hearing (Tr.) 5. Since that claim involves similar legislative behavior, and since the same factors counsel against the implication of a private cause of action, this theory is identically ill-fated.
. Compare Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491, 505-506 (1969) with United States v. Brewster, 408 U.S. 501, 526, 92 S.Ct. 2531, 2544, 33 L.Ed.2d 507, 525-526 (1972).
. The text of the rule does not appear either in the record or in the parties’ briefs, and it is unclear whether Senate rules actually forbid such use or whether that is simply left to the discretion of individual senators. It is undisputed, however, that appellant has been unable to find a senator who would reserve a room for use of her groups.
Senator Proxmire stopped reserving rooms for such uses in late 1975, not because he thought it improper but because he felt he “should be above criticism.” App. (third unnumbered page). The Senator tells us that “[a]U [appellant] needs to do if she wishes to reserve a room for her customers to hear a Senator speak is to ask the Senator to reserve one. I know of no rule which would prevent that.” Id. (fourth unnumbered page). No one, of course, would see anything wrong with access by touring groups incidental to an audience of some sort with a senator when a room was not needed for Senate business. Certainly our Capitol is a stellar attraction, and visitation with Senate members an opportunity few would pass up. We may not, however, proceed at this state of the litigation on this version of the facts. See text supra at note 3.
. 18 U.S.C. § 201 (1976).
. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26, 36 (1975), quoting Texas & P. Ry. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874, 877 (1916) (emphasis in original) (citations omitted).
. See Continental Management, Inc. v. United States, 527 F.2d 613, 617, 208 Ct.Cl. 501 (1975).
. See Cort v. Ash, supra note 12, 422 U.S. at 80, 95 S.Ct. at 2089, 45 L.Ed.2d at 37.
. See id. at 82, 95 S.Ct. at 2090, 45 L.Ed.2d at 39.
. Id. at 80, 95 S.Ct. at 2089, 45 L.Ed.2d at 37.
. Marusa v. District of Columbia, 157 U.S. App.D.C. 348, 354, 484 F.2d 828, 834 (1973), quoting Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 389, 282 F.2d 943, 947 (1960); accord, Wyandotte Transp. Co. v. United States, 389 U.S. 191, 202, 88 S.Ct. 379, 386, 19 L.Ed.2d 407, 415-416 (1967), citing Restatement (Second) of Torts § 286.
. Peigh v. Baltimore & O. R. Co., 92 U.S.App. D.C. 198, 200, 204 F.2d 391, 393 (1953); Prosser, Torts § 36, at 197 (4th ed. 1971), citing DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350, 179 N.E. 764 (1932).
. At oral argument, appellant’s counsel for the first time suggested the possibility that appellant might have claims under the antitrust laws or for tortious interference with contract. We have parsed the complaint once again, but have not found any allegations that might adequately support such theories. As to tortious interference, the averment relied upon is merely that an organization that appellant thought she had as a firm client informed her that it had decided to employ the services of Whirl-Around. Without at least an inference that appellees knew of an existing contract between the organization and appellant and acted to induce a breach of that contract, tortious interference is not sufficiently raised. See Meyer v. Washington Times Co., 64 App.D.C. 218, 222, 76 F.2d 988, 992, cert. denied, 295 U.S. 734, 55 S.Ct. 646, 79 L.Ed. 1682 (1935). As to the antitrust laws, the only theory at all relevant would be monopolization, but the element of conduct necessary could be supplied only by the allegation of unfair competition. The complaint, as we discuss in text, see text accompanying notes 19-24 infra, does not allege facts adequate to state a cause of action in that regard.
. Scanweli Laboratories, Inc. v. Thomas, 172 U.S.App.D.C. 281, 289, 521 F.2d 941, 949 (1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976).
. Id.
. See, e. g., Complaint ¶ ¶ 1 & 6.
. Standard Oil Co. v. United States, 221 U.S. 1, 58, 31 S.Ct. 502, 515, 55 L.Ed. 619, 644 (1911), quoted in Scanweli Laboratories, Inc. v. Thomas, supra note 20, 172 U.S.App.D.C. at 289, 521 F.2d at 949.
. Complaint, Exhibit 3.
. At the hearing on appellees’ motion to dismiss, appellant stated that “I am representing myself. However, I have had legal assistance." Tr. 12. There is no reason to assume that an attorney actually helped appellant prepare her complaint but then decided not to appear formally in order to gain the tactical advantage of having the complaint tested only by the standard demanded of pro se pleadings.
. Mason v. BeLieu, 177 U.S.App.D.C. 68, 70, 543 F.2d 215, 217, cert. denied, 429 U.S. 852, 97 S.Ct. 144, 50 L.Ed.2d 127 (1976).
. See cases cited supra note 3.
. Conley v. Gibson, supra note 3, 355 U.S. at 45 46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.
. See, e. g., Tr. 7 & 13.
. Appellant argues that she was treated unfairly because, at the time of the hearing on the motion to dismiss she did not know the full implications of the phrase “dismissal with prej udice.” See text supra at note 1. Be that as it may, any error inhering in that circumstance is harmless since the District Court applied the proper standard to the motion to dismiss with prejudice, see notes 26-27 supra, and accompanying text and arrived at the correct result.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_appel2_1_4 | K | 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)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
Albert A. DeVRIES, and A. DeVries and Sons, Incorporated, a corporation, Appellants, v. E. H. STARR, Appellee.
No. 9544.
United States Court of Appeals Tenth Circuit.
April 19, 1968.
Robert C. Hanna, of Hanna & Mercer, Albuquerque, N. M., for appellants.
John E. Conway and Charles W. Dur-rett, of Wilkinson, Durrett & Conway, Alamogordo, N. M., for appellee.
Before MURRAH, Chief.. Judge, DELEHANT, Senior District Judge, and DOYLE, District Judge.
Senior District Judge for the District of Nebraska, sitting by designation.
United States District Judge for tbe District of Colorado, sitting by designation.
DELEHANT, Senior District Judge.
Notwithstanding the foregoing caption, this proceeding is pending here between Albert A. DeVries, alone, as the appellant, and E. H. Starr as the ap-pellee. Actually, the case has been so pending from its inception, through the filing on May 8, 1965, in the District Court, of the Complaint. For, theretofore, and as of March 28, 1963, the California corporation, A. DeVries and Sons, had been dissolved; and, as its sole shareholder and owner, Albert A. De-Vries had succeeded to the ownership of all of its corporate property, including its choses in action.
In his STATEMENT OF THE CASE in appellant’s brief, which statement is approved and adopted by the appellee in appellee’s brief, the appellant, with essential accuracy, states:
“This was a civil suit for the misuse of a trade secret, namely, a confidential customers list. The Plaintiffs are” (sic) “Albert A. DeVries, a citizen of the Netherlands and A. DeVries and Son, Inc., a dissolved California corporation.” (The words “Sons” and “Son” are used indiscriminately in allusions to the former corporation.) “The Defendant, E. H. Starr, is a resident (sic) of New Mexico. The complaint in two counts alleged damages of $25,000.00 actual damages, and $25,-000.00 punitive damages. The first count alleged a tortious violation of Plaintiff’s confidential customers list and the second count alleged a contractual breach with respect to the customer’s list. The answer denied the allegations of the Complaint, including the complaint’s allegation that the amount in controversy exceeded $10,000.00. The matter was tried to the court without a jury, the Honorable H. Vearle Payne presiding, on June 3, 1966. The trial court found that it had jurisdiction based on diversity and the amount in controversy; that Plaintiff Albert A. DeVries was the proper party to bring the action; that he had succeeded to all the rights of the Plaintiff Corporation, which corporation was dissolved in accordance with California law in March of 1963.
“The trial court found for the plaintiff on the question of liability, but dismissed the complaint for failure to prove damages.
“From the order dismissing the complaint for failure to prove damages Plaintiff has appealed.” (Citations to pages of the trial court record omitted in this quotation.)
Thus, strictly speaking, the sole appeal tendered here is that of the appellant, Albert A. DeVries, from the order or judgment of the District Court dismissing his complaint and action. For the obvious reason that the trial court’s order or judgment dismissed the action, the appellee has not tendered a cross appeal. However, in his brief he does question the correctness of certain eviden-tiary rulings during the trial; and does also argue that the trial judge was mistaken and in error in his conclusion that, in his use, or misuse, of a list of the purchasing customers of the importer, A. DeVries and Sons, Incorporated (which appears to have been its- correct name) in the area of foreign produced cork and cork porducts, the appellee was guilty of a breach of trust as against A. DeVries and Sons, Incorporated, and was liable therefor in damages, if any, to that corporation, and on its dissolution, to its sole shareholder and successor, namely the appellant, Albert A. DeVries, and that the appellant was, consequently, entitled to recover such damages, if any, from the appellee. The appellee may, therefore, be understood to contend that he was entitled to a judgment of dismissal as well upon the ground of his innocence of the misuse of the alleged trade secret, as upon the ground of a failure of the appellee adequately to prove damages.
Upon due examination and consideration of the record, and of the briefs and oral arguments of counsel in this court, we are satisfied that, despite patent infirmity in its initial assertion, supra, the actual existence in the trial court of jurisdiction upon the basis of diversity of citizenship and the presence of a controversy in the statutory jurisdictional amount, Title 28, U.S.C. Section 1332(a) (2), was correctly found by the trial judge. It is true that the complaint failed adequately to aver the citizenship of either Albert A. DeVries or E. H. Starr, and spoke, instead, of “residence” as to each of them, with the consequence that its immediately ensuing sentence, “a diversity of citizenship therefore exists,” was a eonclusionary non seiquitur. Also, in his answer, the defendant, for asserted want of information, denied the existence of such diversity, and categorically denied the presence of an amount in controversy exceeding $10,000.00 (exclusive of interest and costs). But in the course of the trial, it was made clearly to appear that Albert A. DeVries then (i. e. on June 3, 1966) was, and theretofore, and, with reasonable certainty, on May 3, 1965, had been, a resident of Spain and a citizen of The Netherlands, and that E. H. Starr is, and throughout the litigation has been, a citizen of New Mexico. As between those parties, diversity of citizenship clearly existed. And such diversity also existed as between A. DeVries and Sons, Incorporated (so long as it was a California corporation, and until its dissolution as of March 28, 1963) on the one hand, and; E. H. Starr, on the other hand. But, in the circumstances, such diversity between the appellant and the appellee is what mattered. And the complaint fairly discloses the presence of a controverted claim exceeding in amount $10,000.00, exclusive of interest and costs. It is mentioned at this point that, at the close of the trial of this action, and upon the motion of the defendant, E. H. Starr, expressly unresisted by the plaintiff Albert A. DeVries, the ostensible (though actually nonexistent, supra) plaintiff, A. DeVries and Sons, Incorporated was “dismissed from this lawsuit.” Neither the propriety nor the finality of that dismissal is an issue on this appeal.
Upon similar examination and consideration, we are convinced that, for the reasons (a) set forth by the trial judge in the oral announcement in open court of his findings and ruling, and (b) contained in the court’s Findings of Fact and Conclusions of Law, the trial court correctly found and concluded that, in consequence of his tortious misuse of a list of customers of the appellant, or of A. DeVries and Sons, Incorporated, which list the appellant, at the appellee’s written request, had prepared and delivered to the appellee, upon the faith of the latter’s written assurance of confidentiality in its employment by the appellee and of the appellee’s abstinence from any competitive approach to the customers named in the list, the appellee was and is liable to the appellant, as the legal successor to the rights of A. DeVries and Sons, Incorporated, for such damages as resulted to that corporate entity, or to the appellant, its sole successor, as the proximate consequence of such misuse.
It appears to us to be unnecessary, and, in the current plight of the present appeal, inappropriate, for us to embark upon any exhaustive analysis of the trial court’s finding and conclusion adverted to in the immediately preceding paragraph hereof. At the close of the trial conducted under obvious pressure on the score of available time, and with notable resort to selected excerpts from sundry pretrial depositions, together with oral testimony of the parties litigant, for its evidentiary ingredient, the trial judge promptly announced from the bench his findings and conclusions, and foreshadowed his later formal entry of judgment. Some twenty days thereafter, and on June 23, 1966, he prepared and filed in the action Findings of Fact and Con-elusions of Law, wherein he reiterated and essentially restated that earlier oral announcement, and also announced the entry of the judgment of dismissal. That judgment was entered as of July 5, 1966 and filed on July 15, 1966. Notice of appeal was filed in the office of the clerk of the District Court on August 9, 1966. Incidentally, with the record before us are photographic copies (certified by the clerk of the District Court) of:
(a) JUDGMENT dismissing the plaintiff’s action and awarding judgment in favor of the defendant, filed in the office of the Clerk of the District Court on May 15, 1967; and,
(b) NOTICE OF APPEAL from the “final” Judgment entered in this action on May 15, 1967, also certified by the Clerk of the District Court, as a true copy of the original filed in the office of the Clerk of the District Court, with a certification by one Mary Ann Montoya that a copy of such Notice of Appeal was “mailed to opposing counsel of record this 16th day of May, 1967,” which item in its entirety is marked “Filed, United States Court of Appeals Tenth Circuit, July 10, 1967, WILLIAM L. WHITTAKER, Clerk.”
The evidence before the trial court, as reflected on this appeal, clearly supports the factual statement now made. At all times material herein, and particularly from some inexactly established time in 1954 or 1955, Albert A. DeVries was engaged in business as an importer, that is, in acquiring commodities of foreign production and manufacture, and reselling them, desirably at a profit, to retail outlets in the United States. He was and is a citizen of The Netherlands. His residence during this litigation was, and presently appears to be, in Spain; but before, and during, the interval within which this litigation arose, he also had a residence in California, and, as appears from the record, at Carmel, in that state, where he transacted his business. While his importing business was not strictly limited to the product now mentioned, he dealt largely in the commodity of cork and cork products. And it is with that commodity that this litigation is solely concerned. The cork in which he dealt was and is produced abroad, largely, if not entirely, in Portugal. So, Albert A. DeVries depended, for his acquisition of a stock of salable merchandise, upon purchases by him from the representative or representatives of foreign sources of such products. He operated both in his individual name and, during a few years before its corporate dissolution as of March 28, 1963, supra, through his wholly owned corporation, A. DeVries and Sons, Incorporated.
At all times material herein, the appel-lee, E. H. Starr, held the agency for the sale, within the area of the operations of Albert A. DeVries and A. DeVries and Sons, Incorporated, of the cork and cork products which Mr. DeVries and his corporate alter ego required for their trade.
From an uncertainly identified date in 1960, and until the occurrences giving rise to this litigation, Albert A. DeVries, in the name of A. DeVries and Sons, Incorporated, purchased his requirements in the way of foreign produced cork and cork products, through the appellee, E. H. Starr. In consequence of the operation of reduced prices to importers, A. De-Vries and Sons, Incorporated, solely owned and operated by Albert A. De-Vries, purchased from the appellee such products at prices low enough to enable it to sell to its purchasing customers at a profit, yet at prices substantially higher than those paid by the appellee to the European producers of such products. Thus, for such products, the appellee paid a price substantially lower than the price at which the identical products were being purchased from the appellee by A. DeVries and Sons, Incorporated, and, thereby, derived a profit on and from his sales to A. DeVries and Sons, Incorporated.
Shortly prior to June 6, 1962, the ap-pellee, by way of solicitation of business, sent a price list for cork products to Lin-Brook Hardware, Anaheim, California, one of the DeVries customers for such products. The appellant learned early of that incident, and on June 6, 1962 transmitted to the appellee a letter protesting against the action. On June 9, 1962, the appellee replied to that protest disclaiming any antecedent knowledge by himself of the status of seller and customer relations between DeVries and Lin-Brook Hardware, and also stating:
“If I could have in strict confidence a list of your customers regardless of address and location, I could the better protect your interest should any approach be made to me direct. All such would be immediately checked of (sic) my mailing list if they appear on it for witholding (sic) from all mailings. We have a rather broad mailing list and trade coverage from San Diego to Seattle but I am sure your wishes can be granted.
“As to any damage having been done I question if any has, as you are established with this Firm and our mailing amounts to just another general advertisement in their normal mail receipts. “Send us your Clientale and Adress’s (sic) and we will cooperate with you in every respect.”
Promptly thereupon, and as of June 11, 1962, the appellant in the name of A. DeVries and Sons, Incorporated, replied by a letter to the appellee, wherewith was included a list of the names and addresses of the appellant’s customers, some sixteen in number, all but one in California, as the writer of this opinion understands the list, and that one in Seattle, Washington.
In that letter, the appellant made the following request:
“Please sign the duplicate of this letter, agreeing that you will not now or in the future correspond with these peoples (sic), or in any way, direct or indirect maintain any contact with them.”
Immediately, and on June 12, 1962, the appellee responded by means of a long letter dealing largely with other matters, but containing the following paragraph:
“With reference to your Customer Listing. Upon comparison with my mailing list I find but one, i. e. Lin-Brook Hardware of Anaheim, appearing and was handed to me by my long standing customer in Anaheim. All of the others listed I never heard of and rightfully are your customers and their identity now in my hands constitutes your assurance that any correspondence received from any of them would automatically be handed over to you and without any action on my part and thus we have a Gentlemen’s agreement in mutual interest. When you have customers and I have customers in the same locality we will try to function to avoid complications or rivalry between the customers.”
And, in a letter to A. DeVries & Sons as of June 18, 1962, which dealt with several subjects, the appellee mentioned two of the appellant’s customers, and closed with this paragraph:
“With me a Gentlemens agreement is sufficient and ample in your best interest and with us is stronger than any other means of agreement and we have passed along to you and will be in fact perpetual as long as you respect it. We have had other and similar Gentlemens agreements in existance (sic) and they are all working in perfect harmony, our agreement with you will be the same.”
Reference is now made, without formal reflection, to the evidence and testimony received upon the trial, and especially to the announcement, at the close of the trial, by the trial judge, of his ruling and decision in the ease, and to the trial court’s Findings of Fact and Conclusions of Law, filed on June 23, 1966, and foreshadowed in the trial judge’s announcement at the conclusion of the trial, supra.
Shortly stated, this court is of the opinion that the trial court’s finding and conclusion that the list of the appellant’s customers thus furnished by the appellant to the appellee upon the latter’s express solicitation was, from the time of its submission to the appellee, and remained, in the nature of a trade secret, of which the appellee was legally obliged to make no use abusive of the appellant; that the appellee did misuse such list, and the information therein contained, by competitively approaching, upon the basis and prompting of such list, a substantial number of the more desirable customers identified on such list; and, in consequence of its own preferential position in the involved particular trade, underpricing cork and cork products to such customers of the appellant below the appellant’s ability to meet the resulting competition, and thus enticing such customers, or some of them, away from the appellant. Heyman v. A. R. Winarick, Inc. (2 Cir.), 325 F.2d 584, 9 A.L.R. 3d 652; Aktiebolaget Befors v. United States, 90 U.S.App.D.C. 92, 194 F.2d 145, Restatement, Law of Torts, Sec. 757, comment (b).
This court clearly understands that, in consequence of a dispute which had theretofore arisen between the appellant and the appellee over an item or items of shipment, they discontinued the transaction of business with each other, and the appellant ceased to make purchases from the appellee some time early in 1963, thus antedating the appellee’s principally alleged circularization with price lists, of the appellant’s major customers, and long before the institution of this action.
It is to be recognized that the present appeal is from the court’s final judgment of dismissal of this action. And that dismissal is explicitly premised upon the trial court’s announcement at the conclusion of the trial of its ruling in the case, and upon the Findings of Fact and Conclusions of Law. And it rests ultimately on the trial court’s announced Conclusion of Law declared by it in the following language:
“The.Court concludes as a matter of law, that the plaintiff has failed to prove any damages and, by reason thereof, his complaint should be dismissed.”
Upon due consideration of the evidence in this cause, this court is of the opinion that such announced Conclusion of Law on the part of the trial court is mistaken and erroneous.
In Anvil Mining Company v. Humble, 153 U.S. 540, 14 S.Ct. 876, 38 L.Ed. 814, as of May 14, 1894, the Supreme Court of the United States, speaking through Mr. Justice Brewer, in a case arising out of breach of contract, said upon the subject of the proof of damages:
“Now, there was in this case testimony to show the cost of mining each ton of ore, and also the amount of ore remaining in the first level of the mine at the time the work stopped. From these figures the profit which would have been made by the plaintiffs if they had completed the work of mining all the ore on the first level is a mere matter of multiplication. It is true that the cost of mining the remaining ore might differ from that of mining the ore which had already been taken out; but still, proof of the cost of taking out that which had been mined, and of the condition of the mine as it was left, furnished a basis upon which a reasonable estimate could be made as to the cost of extracting the remaining ore. Equally true is it that there was no mathematical certainty, as to the amount of ore remaining in the mine; yet both plaintiff and defendant furnished testimony as to such amount, and testimony which, while not such as to put it beyond doubt, was sufficient to enable the jury to make a fair and reasonable finding in respect thereto. The case is one, therefore, in which the profits are not open to the objection of uncertainty, and certainly not to that of remoteness, for they would have been the direct result of carrying on the contract to a completion, and were obviously within the intent and mutual understanding of both parties at the time it was entered into.”
Much more recently, and as of January 6, 1941, the Supreme Court, speaking through Mr. Justice Reed, in Palmer v. Connecticut Railway and Lighting Company, 311 U.S. 554 to 562, 61 S.Ct. 379, 384, 85 L.Ed. 336, said:
“As there was no significant dispute over the facts proven, the conclusion as to the sufficiency of the evidence was for the reviewing court. We deal, in this review, with the method of the proof of damages, not the measure. Narrowed even more, the issue is whether the evidence offered justifies an award, whether the quantum of proof produced forms an adequate basis for a reasoned judgment.
“Future rental value cannot be susceptible of precise proof. As it depends, so far as the amount of damages for breach of a lease is concerned, upon future profits, it partakes of the nature of loss of earning capacity or of credit. To require proof of rental value approaching mathematical certitude would bar a recovery for an actual injury suffered. All that can be done is to place before the court such facts and circumstances as are available to enable an estimate to be made based upon judgment and not guesswork. Every anticipatory breach of an obligation, and every appraisal of damage involving the present value of property involves a prediction as to what will occur in the future. Present market value of property is but the resultant of the prediction of many minds as to the usability of property and probable financial returns from that use, projected into the future as far as reasonable, intelligent men can foresee the future.
“The proof of future profits by the evidence of past profits in an established business gives a reasonable basis for a conclusion. It is true that this business changed from trolley to bus within two years of the end of the base period and that management changed from lessee to lessor but we think the fact of transportation in the same communities for more than a quarter of a century sufficed to give the operation the classification of an established business. Here different methods of operation or normal changes in the executive staffs do not seem sufficient to interfere with the probative value of past experience. Franchises and property of street railways and bus lines are difficult of appraisal. Nothing is more indicative of their value for lease or sale of the fee than past earnings. If we were to adopt the view that the interest conveyed is a defeasible fee, its defeasance dependent upon a condition such as nonpayment of annual instalments of the purchase price, the same difficulties exist. The unknown subtrahend would be the present value, instead of the rental value. Evidence of value would be made up of the items of proof. One of the most important of these, in the case of property such as here involved, would be past earnings. “This Court has sustained recoveries for future profits over four years based solely upon evidence of the profits of an established business for the past four years. We there approved an instruction which told the jury, ‘Damages are not rendered uncertain because they cannot be calculated with absolute exactness. It is sufficient if a reasonable basis of computation is afforded, although the result be only approximate.’
“The ways compensatory damages may be proven are many. The injured party is not to be barred from a fair recovery by impossible requirements. The wrong-doer should not be mulcted, neither should he be permitted to escape under cover of a demand for nonexistent certainty. Damages for breach of the lease were in contemplation of the parties when the contract was made. The lease contained a covenant of reentry without prejudice to right of action for arrears of rent or breach of covenants. The provision in the Bankruptcy Act gives a new right of recovery in bankruptcy only. This right of recovery is an unsecured claim of the character of a claim for a deficiency above the value of inadequate collateral.
“Certainty in the fact of damage is essential. Certainty as to the amount goes no further than to require a basis for a reasoned conclusion. The certainty of the evidence as to damages for rejection of a lease depends upon the same tests as in other situations where damages are difficult of proof. This Court, recently, in an infringement case was required to appraise the value of opinion evidence as to the part of profits attributable to the use of a pirated play, an obviously elusive fact. No expert thought any greater percentage than ten should be attributed to the play. The lower court allowed twenty so that the award might by no possibility be too small. We approved because ‘what is required is not mathematical exactness but only a reasonable approximation. That, after all, is a matter of judgment * * “Satisfactory evidence was presented for the three years of actual operation of the properties covered by this lease. We think that prior earnings of the same property over fourteen years was a fair base to use to project the estimate of the earnings for the eight years of future operation. The failure to produce further evidence, either through experts or transportation surveys, was not fatal to respondent’s ease, even though such evidence is admissible. We see no reason to disagree with the conclusion of the circuit court of appeals that under the evidence presented the damages for eight years might be predicted with a ‘fair degree of certainty.’ ”
It is true that in that case there was a dissent explicitly on the ground of the inadequacy of proof of damages by Mr. Justice Douglas (concurred in by Mr. Justice Black) from the majority ruling reflected in Mr. Justice Reed’s opinion. But it may well be considered that the dissent, instead of discrediting the prevailing opinion, served rather to emphasize the actuality of mature reflection and consideration out of which the majority ruling emerged.
In Sheldon v. Metro-Goldwyn Pictures Corporation, (2 Cir.) 106. F.2d 45, 51, aff’d 309 U.S. 390, 406-408, 60 S.Ct. 681, 84 L.Ed. 825, the Court of Appeals, Second Circuit, through Judge Learned Hand, in a copyright infringement case, said:
“We are aware that out of all this no real standard emerges, and that it would be absurd to treat the estimates of the experts as being more than expressions of very decided opinions that the play should count for very little. But we are resolved to avoid the one certainly unjust course of giving the plaintiffs everything, because the defendants cannot with certainty compute their own share. In cases where plaintiffs fail to prove their damages exactly, we often make the best estimate we can, even though it is really no more than a guess (Pieczonka v. Pullman Co., 2 Cir., 102 F.2d 432, 434), and under the guise of resolving all doubts against the defendants we will not deny the one fact that stands undoubted. Procedural duties are devised in aid of truth; and their unsparing use may defeat their whole purpose, as here it would. However, though we do not press the burden of proof so far, the defendants must be content to accept much of the embarrassment resulting from mingling the plaintiffs’ property with their own. We will not accept the experts’ testimony at its face value-; we must make an award which by no possibility shall be too small. It is not our best guess that must prevail, but a figure which will favor the plaintiffs in every reasonable chance of error. With this in mind we fix their share of the net profits at one fifth.”
And in National Labor Relations Board v. Kartarik, Inc. (8 Cir.), 227 F.2d 190, 192, 193, the court, speaking through Judg^ (later, Chief Judge) Johnsen, said:
“On respondent’s second contention, as set out above, that the determinations of back-pay made by the Board were clearly erroneous as having been speculatively arrived at in their amounts, we think that, at the least, such determinations on the part of the Board may not judicially be required to rest upon any greater degree of certainty as to amount than that applicable to contract or statutory breaches generally. Cf. F. W. Woolworth Co. v. N.L.R.B., 2 Cir., 121 F.2d 658, 663.
“That degree of certainty may appropriately be recalled. ‘There is a clear distinction between the measure of proof necessary to establish the fact that (a party) sustained some damage and the measure of proof necessary to enable (a tribunal) to fix the amount.’ Story Parchment Paper Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562, 51 S.Ct. 248, 250, 75 L.Ed. 544. ‘Certainty in the fact of damage is essential. Certainty as to the amount goes no further than to require a basis for a reasoned conclusion.’ Palmer v. Connecticut Ry. & Lighting Co., 311 U.S. 544, 561, 61 S.Ct. 379, 385, 85 L.Ed. 336. These principles are, of course intended to permit a solution of the problem of amount to be made upon any range of facts, circumstances or reasonable inferences, which afford a rational basis for a conclusion.”
This court in several reported opinions has disclosed its concurrence in the decisional considerations reflected in the foregoing quoted language. Thus, in Mountain States Telephone and Telegraph Company v. Hinchcliffe (10 Cir.), 204 F.2d 381, 382, 383 (a suit by a customer for the failure of a telephone corporation to furnish him with proper service), the court, by Chief Judge Phillips, said:
“The trial court also submitted to the jury the issue of loss of profits, if any, resulting from the failure to furnish proper and adequate telephone facilities. Whether there was any competent evidence to take that issue to the jury is the more difficult question presented on this record. It should be noted, however, that the trial court in submitting that issue carefully instructed the jury that its verdict must be based upon evidence and not upon speculation or conjecture.
“In Hoffer Oil Corp. v. Carpenter, 10 Cir., 34 F.2d 589, 592, we said:
‘The general rule is that, where the cause and existence of damages has been established with requisite certainty, recovery will not be denied because such damages are difficult of ascertainment. * * *
‘In Straus v. Victor Talking M(ach). Co., supra, page 802 of 297 F., the court said: “The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery.” * * *
‘A reasonable basis for computation, and the best evidence which is obtainable under the circumstances of the case and which will enable the jury to arrive at an approximate estimate of the loss, is sufficient.’
“While the damages may not be determined by mere speculation or guess, it is enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.
“However, the plaintiff must establish his damage by the most accurate.basis possible under the circumstances. He must produce the best evidence reasonably obtainable.”
In an earlier opinion, this court in Shannon v. Shaffer Oil and Refining Company (10 Cir.), 51 F.2d 878, 882, 78 A.L.R. 851, in the way of support of a ruling affirming a judgment denying damages largely through want of adequate proof of the elements and amount thereof, thus summarized the pertinent judicial teaching upon the point :
“Obviously a plaintiff may not come into court and say no more than ‘the „ defendant stole some wheat’ or that ‘a fire destroyed some of my goods,’ and ask for substantial damages. The rule is that, if an injured plaintiff has produced the best evidence available, and if it is sufficient to afford a reasonable basis for estimating his loss, he is not to be denied a substantial recovery because the exact amount of the damage is incapable of ascertainment. In Eastman [Kodak] Co. v. Southern Photo Co., 273 U.S 359, at page 379, 47 S.Ct. 400, 405, 71 L.Ed. 684, the court held: ‘Damages are not rendered uncertain because they cannot be calculated with absolute exactness. It is sufficient if a reasonable basis of computation is afforded, although the result be only approximate. This, we think, was a correct statement of the applicable rules of law. Furthermore, a defendant whose wrongful conduct has rendered difficult the ascertainment of the precise damages suffered by the plaintiff, is not entitled to complain that they cannot be measured with the same exactness and precision as would otherwise be possible.’
In Anvil Min. Co. v. Humble, 153 U.S. 540, 14 S.Ct. 876, 38 L.Ed, 814, the Supreme Court held that mathematical certainty as to damage was not necessary, if the evidence ‘furnished a basis upon which a reasonable estimate’ of the elements entering into the damage might be made. In the Hoffer Case, supra, we held that ‘a reasonable basis for computation, and the best evidence which is obtainable under the circumstances of the case and which will enable the jury to arrive at an approximate estimate of the loss, is sufficient.’ ”
In Wells Truckways v. Burch (10 Cir.), 247 F.2d 194, 196, 197, the court, after a comprehensive factual review, and with instant pertinence, said:
“There was, therefore, substantial evidence from which the jury could find loss of profits. Before recovery may be had for loss of future profits, it must be established by substantial evidence that such loss will occur. But when that is once established, it is not necessary that the exact amount of such loss be ascertained. It is then necessary only that the evidence be sufficient to enable the jury to reasonably approximate the amount of such loss.”
In United States v. Griffith, Gornall and Carman, Inc. (10 Cir.), 210 F.2d 11, 13, a Federal Tort Claims Act suit by a contractor for damages caused by the flow of rain water from a government air base upon a concrete water pipeline under construction by the contractor, this court remanded to the trial court a judgment for the plaintiff with direction to eliminate from the trial court’s judgment so much thereof as constituted an award of $15,000.00 for “injury and impairment of business, loss of earnings, destruction of credit and reduction of net worth” because of failure of proof of any such damage in the particular ease. There was clearly a failure of such proof, coupled with evidence possibly reflective of the loss of gross receipts or “gross profits,” so called, and a failure, despite the intimation of its availability, to show “net losses.” Nevertheless, the opinion offers the following discussion reflective of the applicable decisional standard:
“Prospective profits are necessarily somewhat uncertain and problematical, but in eases where damages are definitely attributable to the wrong of the defendant and are only uncertain as to amount, they will not be denied even though they are difficult of ascertainment. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Kobe, Inc. v. Dempsey Pump Co., 10 Cir., 198 F.2d 416, 426, certiorari denied 344 U.S. 837, 73 S.Ct. 46, [97 L.Ed. 651]; Indian Territory Illuminating Oil Co. v. Townley, 10 Cir., 81 F.2d 159; Hoffer Oil Corp. v. Carpenter, 10 Cir., 34 F.2d 589, certiorari denied 280 U.S. 608, 50 S.Ct. 158, 74 L.Ed. 651. The loss of future profits from a regularly established business may in proper cases be established by showing that the profits after the wrong are less than past profits. 25 C.J.S., Damages, § 90; Palmer v. Connecticut Ry. & Lighting Co., 311 U.S. 544, 561, 61 S.Ct. 379, 85 L.Ed. 336; Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684; Kobe, Inc. v. Dempsey Pump Co., supra. This is often the only available evidence. The fact of damage, however
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer: |
songer_genapel1 | G | 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.
UNITED STATES of America, Plaintiff-Appellee, v. Richard A. LEONARD, Defendant-Appellant.
No. 78-5744.
United States Court of Appeals, Fifth Circuit.
Jan. 15, 1980.
Thomas M. West (Court-Appointed), Frank L. Derrickson, Atlanta, Ga., for defendant-appellant.
Julie E. Carnes, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.
FRANK M. JOHNSON, Jr., Circuit Judge:
Richard A. Leonard was convicted of conspiracy to murder John Charles Widener, a fellow prisoner in the Atlanta Federal Penitentiary. He was also convicted of first degree murder and of conveying a weapon inside the prison. He was sentenced to serve a life sentence for conspiracy to commit murder, a life sentence for murder, and ten years for conveying the weapon.
Prior to trial, Leonard filed notice pursuant to Federal Rule of Criminal Procedure 12.2(b) that he intended to rely on a defense of insanity and that he intended to introduce expert testimony at trial relating to whether defendant possessed the mental state required before one can be convicted for the offense of murder or conspiracy to murder. After this motion and in response to a Government motion, made pursuant to Rule 12.2(c), the district court ordered Leonard to undergo an examination by a psychiatrist. Subsequent to the examination but before trial, however, defendant stipulated to his mental competency at the time of the alleged offenses and waived the issue. At trial the prosecution cross-examined Leonard as to the statements made by him to the prosecution psychiatrist.
On appeal, defendant raises several issues besides the one involving Rule 12. These concern the defendant’s motion for continuance, his request for a mental competency hearing [to determine competency to stand trial] and the court’s denial thereof, his motion to exclude evidence of a serological examination, the defendant’s access to witnesses, the abbreviated “Allen” charge given the jury and a portion of instructions given the jury. Because we find it necessary to reverse on the basis of the violation of Rule 12, and absent the likelihood of reoccurrence of these matters upon retrial, we do not reach these other issues.
Rule 12.2(b) requires a defendant to give notice prior to trial of his intention to rely on the defense of insanity. Subdivision “c” of this rule gives the trial court authority upon motion of the Government to order the defendant to submit to an examination by a psychiatrist designated by the court. Subdivision “c” also provides:
No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
On its face, Rule 12.2(c) precludes the use upon the issue of guilt of statements made by Leonard in the course of the court-ordered psychiatric examination. The rule reflects a clear congressional intent that such statements not be used in a proceeding on the issue of guilt, but rather that they be used solely on the issue of sanity. As the legislative history makes clear, the purpose of Rule 12.2(c) is to secure the defendant’s Fifth Amendment right against self-incrimination. See Historical Note, following 18 U.S.C. Rule 12.2. Because sanity at the time of the commission of the alleged offense bears heavily on the issue of guilt, it implicates Fifth Amendment concerns. Thus, there is a sharp distinction between the use of the defendant’s statements made during a court-ordered psychiatric examination on the issue of sanity and the use, before the “fact finders” (here a jury), of incriminating statements made during such psychiatric examination on the issue of guilt and before guilt had been determined. See Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir. 1978), cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1979); United States v. Bennett, 148 U.S.App.D.C. 364, 370-72, 460 F.2d 872, 878-80 (D.C.Cir.1972). Therefore, central to the court’s authority to order a defendant to submit to a psychiatric examination is what we believe to be a clear understanding that the function of statements obtained during the examination is limited to the sanity issue.
There is another obvious rationale behind the rule. Both the Government and the defendant may need the assistance of expert testimony on the issue of sanity. In many cases, psychiatrists would not be able to obtain reliable testimony unless they were free to inquire into the prior conduct of the defendant, including his participation in the criminal activity with which he is charged. Moreover, the psychiatric inquiry cannot succeed unless the defendant cooperates; a defendant’s mental condition would not be discovered in many instances unless the psychiatrist can engage in a candid conversation with the defendant about it. Therefore, it may be appropriate and even in some cases necessary for the psychiatrist, when testifying on the issue of sanity, to disclose the criminal activity related to him by the defendant.
Thus, drawing on the language of the rule and the reasoning behind it, Leonard’s statements introduced at trial for impeachment purposes were inadmissible under Rule 12.2(c). To secure the reliability of the psychiatric interview as well as to prevent the infringement of the defendant’s Fifth Amendment rights, Leonard’s right to a competency determination to prove insanity cannot be conditioned on allowing the statements obtained at such a determination to be used by the Government for evidence on issues other than sanity. The legislative history of the rule supports this conclusion. The Conference Committee Notes, the Senate Debate, and the House Debate all indicate that facts related in a psychiatric examination should not be admissible on the issue of guilt and that the only purpose for which the statements can be admitted is to determine the issue of sanity. See Historical Note, supra; 121 Cong.Rec. 25843, 25986 (1975).
The Government urges us to adopt case law developed under 18 U.S.C. § 4244 as binding on the interpretation of Rule 12.2. Section 4244 permits the court to order a psychiatric examination in cases where there is a question concerning the competency to stand trial. Like Rule 12.2, Section 4244 precludes the admission into evidence on the issue of guilt any statement made by the defendant. We reject the assertion that the similarity in language in the two provisions demands application of precedent developed under Section 4244 to Rule 12.2 for several reasons.
To support its contention, the Government relies principally on United States v. Castenada, 555 F.2d 605 (7th Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 152, 54 L.Ed.2d 113 (1977). In that case, defendant appealed his conviction on the ground that 18 U.S.C. § 4244 precludes the admission into evidence on the issue of guilt of any statement made by the defendant. The Seventh Circuit held that Section 4244 does not bar the use of statements by the accused for purposes of impeachment. The court relied on the “Miranda exception to impeachment” to support the distinction between precluding the admission of evidence on the issue of guilt in the case in chief and admitting otherwise inadmissible evidence for purposes of impeachment. Id. at 609. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1970).
We do not find the reasoning applied in Castenada persuasive on the issue presented here. First, Castenada involved the construction of a separate statute, 18 U.S.C. § 4244, and not a Federal Rule of Criminal Procedure. Legislative history does not indicate that existing case law developed under Section 4244 was enacted into the rule; instead it emphasizes that the two provisions are to be treated separately. See Notes of Advisory Committee on Rules, Historical Note, supra.
Additionally, there is a reasoned basis to treat the prophylactic rule concerning a competency hearing less stringently than that concerning the insanity defense. Unlike an examination to ascertain competence to stand trial, the purpose of an interview to probe sanity at the time of the commission of the charged offense is to obtain from the accused information bearing directly on his guilt. See United States v. Malcolm, 475 F.2d 420, 425 (9th Cir. 1973). Insanity at the time of the offense charged involves an intent question that eventually may negate a basic element of the offense. Statements from the defendant are most critical to a determination of the intent question that is basic to the issue of mental capacity to commit a crime. Because such statements are focused on the time of the commission of the crime, there is a greater likelihood of soliciting statements that breach a defendant’s Fifth Amendment rights. On the other hand, determining the defendant’s capacity to stand trial under Section 4244 does not primarily concern his mental state at the time of the commission of the alleged crime but concerns his mental condition at the time of trial.
We conclude that a firm rule that prevents the prosecution from relying on statements of a defendant given during the course of a compelled psychiatric examination for impeachment purposes not only protects the integrity and reliability of the psychiatric interview but also prevents infringement on the defendant’s Fifth Amendment rights. We, therefore, give effect to the apparent command of Rule 12.-2(c). Accordingly, we REVERSE the ruling of the trial court and REMAND for a new trial.
. The following is a portion of the cross-examination of the defendant by Government counsel:
Q And you testified that you followed them as they went down toward the ramp and step area, with Joe-Joe hitting away, was that your testimony?
A I testified that he stabbed J.C. somewhere in the chest and J.C. bent over and spun around and started running and he ran out into — you got the ramp on this side and you got the walkway on this side and Joe-Joe was trying to hit him. J.C. started running and I stayed there I guess — I don’t have a recollection of a time I stood there but maybe a minute, five, ten minutes, fifteen seconds, but I went on out and when I got out they was halfway down what you call that walkway, you know. I stood a little bit down from the safety building and it was just like a shock, you know, just — I don’t know what you call it, you know. I don’t know what to do really.
Q Your recollection of all this is fairly detailed today, isn’t it?
A Well, I was there.
Q Do you recall being interviewed by a psychiatrist named Dr. Bachus on September 26, 1978?
A Yes, ma’am.
Q Do you recall him asking you, Mr. Leonard, what happened and do you recall answering “I don’t know what happened. A dark cloud just seemed to come down over me”?
A Yes, ma’am.
Q Do you recall him asking you to develop what you meant and do you recall answering “I saw Widener and Williams struggling. Williams ran toward him and grabbed Leonard,” you.
A Yes, ma’am.
Q That you recalled that next you pushed Williams away and then a dark shadow came over you and the next thing you knew Williams was pulling on you.
A Yes, ma’am.
Q A dark shadow came over you. The shadow lifted and it was “as if 1 opened my eyes and my last recollection was seeing Widener coming after me with a hatchet in his hand. After the shadow lifted, I was aware that I was still in the prison yard, was bleeding, had blood all over me. So I knew something had happened.” Do you recall stating that answer?
A Yes, ma’am.
Q That is not quite the same thing you testified today, is it?
A No, ma’am.
Q Has your recollection gotten a lot better in the last few weeks—
A No, ma’am.
Q —than when you talked to the doctor?
A No, ma’am.
Q You lied to the doctor then?
A Yes, ma’am.
Q You lied when you told him a dark cloud had come over you?
A Yes, ma’am.
Q You lied when you told him Mr. Widener was coming after you with a hatchet?
MR. DERRICKSON: Your Honor, he has answered. She has been over this and he has answered. He has admitted he made those statements. It seems to me that is sufficient.
THE COURT: Well, she is entitled to determine which is correct. Ask him which is correct.
MR. DERRICKSON: Well, she already asked him and he answered.
THE COURT: She asked him once. She is asking him about another fact now but don’t belabor—
MISS CARNES: Yes, sir.
Q And you also lied when you said Williams had come toward you and grabbed you, is that correct?
A Yes, ma’am.
Q Because your testimony today is actually you went down and grabbed him away.
A Yes, ma’am.
. Whether these statements are admissible in a separate determination for sentencing purposes once guilt has been determined need not be decided in this case. Cf. Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979) (defendant may not be compelled to speak to a psychiatrist for the purpose of determining dangerousness when psychiatrist can use defendant’s statements against him at the sentencing phase of a capital trial). Nor do we discuss the use of a defendant’s statements at a separate determination on the issue of sanity.
. A defendant can be barred from raising the issue of insanity as a defense if he did not submit to an examination by the court-designated psychiatrist. See Smith v. Estelle, supra, at 704. This Circuit has found that empowering the court to order a psychiatric examination concerning the insanity defense does not violate per se the defendant’s rights under the Fifth Amendment. See United States v. Cohen, 530 F.2d 43, 47 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976). The holding in Cohen rested on the premise that, if a defendant raises insanity as a defense and introduces psychiatric testimony, “the government will seldom have a satisfactory method of meeting defendant’s proof on the issue of sanity except by the testimony of a psychiatrist it selects . . who has had the opportunity to form a reliable opinion by examining the accused.” Id. at 48. More importantly, however, the court recognized that eliciting statements at a compulsory examination is not unconstitutional per se because any statement about the offense itself could be suppressed. Id. at 47.
. Both the Advisory Committee’s Notes and the Report of the House Judiciary Committee specifically contemplate a separate determination of the issue of sanity. See Historical Note, supra. This is because use of the defendant’s statements elicited at a psychiatric examination solely at a hearing to determine sanity encounters no self-incrimination objection under the rule.
. 18 U.S.C. § 4244 provides in applicable part:
No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
. Although the defendant in Castenada, unlike the situation in the case before us, opened the door on direct examination to the content of the statements made during his competency examination, we do not rely on that distinction.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_appnatpr | 1 | 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.
Joyce E. KEEGAN, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services.
No. 84-1113.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Sept. 10, 1984.
Decided Sept. 24, 1984.
Jack I. Kaufman, Allentown, Pa., for appellant.
Edward S. G. Dennis, Jr., U.S. Atty., Edward T. Ellis, Asst. U.S. Atty., E.D.Pa., Beverly Dennis, III, Regional Atty., David L. Hyman, Asst. Regional Atty., Dept, of Health and Human Services, Philadelphia, Pa., for appellee.
Before GIBBONS and GARTH, Circuit Judges, and TEITELBAUM, District Judge.
Hon. Hubert I. Teitelbaum, Chief Judge, United States District Court for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Joyce E. Keegan appeals from a summary judgment in favor of the Secretary of Health and Human Services in her action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982), for a review of a denial of disability benefits under Title II and Title XVI of the Social Security Act. Keegan contends that the district court erred in its interpretation and application of the guidelines for the termination of disability benefits as set forth in Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983). We agree and therefore reverse.
I.
Ms. Keegan, born in 1932, and formerly employed as a secretary, applied for disability insurance benefits on June 28, 1976. Her application was denied initially and on reconsideration by the Office of Disability Operations of the Social Security Administration. The case was considered de novo by an Administrative Law Judge (AU) who, in a decision dated April 27, 1978, determined that Ms. Keegan was disabled for purposes of the Act, and that her disability commenced on November 8, 1974. The AU concluded, based in part on medical reports from Doctors Farber and Chirieleison, that Keegan was disabled due to a combination of: “(1) rheumatic heart disease, (2) mitral stenosis and insufficiency with the insufficiency predominating, and. (3) anxiety.” Subsequently on April 30, 1978 Ms. Keegan filed for and was granted Supplemental Security Income Benefits.
On June 23, 1981 Ms. Keegan was notified that her disability had ceased as of May, 1981 and that her benefits would be terminated as of July, 1981. The administration in its notice advised Ms. Keegan that her benefits had been initially granted “because of rheumatic heart disease,” Tr. 163, and that the medical evidence indicated that her heart was currently enlarged and that her cardiogram reflected “some non-specific changes consistent with [her] condition.” Further the evidence showed, according to the notice, the absence of symptoms indicative of congestive heart failure, chest pains or fainting spells. Tr. 163. Accordingly, she was advised that “[i]n view of the evidence you have the functional ability to perform your customary occupation as a secretary as it is generally performed in the national economy.” Tr. 163.
Following a hearing which was requested by Ms. Keegan, the AU found that Ms. Keegan was unable to work as a secretary since that activity involved “light exertion” as defined in 20 C.F.R. § 404.1567(b) (1984), but that she retained sufficient residual capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) (1984). The AU determined that Ms. Keegan’s past work experience should be classified as “skilled” as defined in 20 C.F.R. § 404.1568(c) (1984), and that these clerical skills were transferable to sedentary work. 20 C.F.R. § 404.1568(a) (1984).
The AU’s opinion, relying heavily on the report of Dr. Kastenbaum who examined Ms. Keegan for the Administration, conceded that the claimant suffers from rheumatic heart disease with probable mitral insufficiency along with a history of atrial fibrillation, and that this impairment “significantly limits her physical ability to perform basic work related activities.” Tr. 22. The AU stated that Ms. Keegan’s symptoms are aggravated by exertion but relieved by rest and that she was “able to carry out her daily activities without much in the way of symptoms.” This latter observation is apparently taken from Dr. Kastenbaum’s report. Tr. 179.
The Appeals Council refused to review the AU’s opinion, thereby making the Secretary’s determination of non-disability final. Ms. Keegan appealed the decision to the district court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982). Each party moved for summary judgment, and the matter was referred to a magistrate for a recommendation. The magistrate reviewed the evidence and recommended that Ms. Keegan’s motion for summary judgment be denied and the Secretary’s motion for summary judgment be granted. In addressing one of Ms. Keegan’s contentions, namely, that the AU made an error of law in determining that her disability had ceased, the magistrate’s report discussed our decision in Kuzmin. The report stated that Kuzmin was satisfied in that Ms. Keegan failed to meet her burden of proof by showing that her condition remained the same as it was at the time of the earlier determination of disability. The magistrate’s report seems to base this conclusion on the lack of additional medical evidence subsequent to the initial determination of disability attributable to the fact that Ms. Keegan was not being treated by any particular physician since 1977.
Ms. Keegan contends that the magistrate’s interpretation of Kuzmin was incorrect. She argues that her testimony constituted evidence of a continuing disability which thereby effectively shifted the burden of proof to the Secretary to present evidence of sufficient improvement in her condition to permit her to undertake “gainful activity.”
The district court adopted the recommendation of the magistrate and granted the Secretary’s motion for summary judgment. The court held that the guidelines for the termination of benefits provided by our decision in Kuzmin were properly followed. First, the court concluded that Ms. Keegan failed to introduce “sufficient evidence that her condition is the same or worse when compared to her condition at the time of the prior finding of disability.” App. 8A at 4. Second, the court concluded that even if a presumption of continuing disability was created by Ms. Keegan, Dr. Kastenbaum’s report was sufficient evidence to enable the Secretary to rebut the presumption of continuing disability.
Since Ms. Keegan's sole ground for appeal rests on the district court’s alleged error in interpreting and implementing our decision in Kuzmin, that is the only issue we need address.
II.
Our inquiry is limited to a determination of whether the Secretary’s final determination of non-disability is supported by “substantial evidence,” 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982), which has been defined as such evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In our decision in Kuzmin we addressed the effect to be given to a prior determination of disability on a subsequent decision to terminate benefits. We concluded that both basic principles of fairness and the need to provide the appearance and fact of consistency in the administrative process dictate that “once the claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, the claimant is entitled to the benefit of a presumption that his or her condition remains disabling.” Kuzmin, 714 F.2d at 1237. Regarding the nature of proof that must be offered by a claimant, our decisions in both Kuzmin and Daring v. Heckler, 727 F.2d 64 (3d Cir.1984), are instructive. In Kuzmin we stated that a claimant may meet his or her burden by relying on medical evidence previously introduced, supplemented by the claimant’s own testimony of the continuing nature of the disability. Kuzmin, 714 F.2d at 1237. Any doubt which may have persisted after Kuzmin as to the sufficiency of a claimant’s own testimony standing alone to raise the Kuzmin presumption has been resolved in Daring wherein we recognized that this was an adequate means of proof. Thus, once the claimant produces evidence of continuing disability, the burden of proof, or more properly the risk of non-persuasion, shifts to the Secretary to produce evidence that the claimant is capable of undertaking gainful activity in order to rebut the presumption of continuing disability. Kuzmin, 714 F.2d at 1237.
III.
In the present case the district court’s conclusion that Ms. Keegan failed to meet her burden under Kuzmin was in error. The record reflects that in addition to giving testimony of a continuing disability Ms. Keegan did in fact offer additional medical evidence at the hearing itself. Specifically, at the hearing Ms. Keegan introduced medical reports from St. Joseph Hospital, dated April 23, 1982, and records resulting from a visit to the Reading Hospital and Medical Center Emergency Unit. Ms. Keegan had been brought to the hospital by a friend because she complained of weakness, poor appetite and palpitations. Tr. 191. While this additional evidence alone would likely be sufficient to raise the Kuzmin presumption, our decision in Daring makes it clear that her testimony standing alone was sufficient to create the presumption of continuing disability. Daring, 727 F.2d at 69. The Secretary argued in her brief that a leading question asked by Ms. Keegan’s attorney cannot be sufficient even under Daring to satisfy the Kuzmin burden. Brief for Appellee at 10. The exchange referred to by the Secretary was:
BY ATTORNEY:
Q: Mrs. Keegan, 1978, based on the evidence, there was evidence indicating that you experienced frequent fatigue and weakness to the point where you could not do your housework. Okay. Is that still your situation?
A: Yes
Tr. 35.
The Secretary’s argument is without merit for two reasons. First, the Secretary’s objection to the form of the question is inappropriate given the liberal evidentiary rules governing administrative hearings. Section 556(d) of the Administrative Procedure Act provides, “[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” The record nowhere reflects the AU’s instructions to Ms. Keegan’s counsel to frame his questions in a certain way. Thus, if the Secretary simply objects to the form of the question, the objection is incorrect. If, on the other hand, the Secretary is arguing that Ms. Keegan’s answer cannot be sufficient to meet her Kuzmin burden because she is only adopting the words of her attorney, the argument must also fail. The question must be fairly read to constitute the attorney’s asking if Ms. Keegan feels any better now than she did at the time of the initial hearing. Given the nature of disability benefit termination proceedings, such a question can hardly be improper.
The other flaw in the Secretary’s argument concerning the “leading question” is that it implicitly assumes that the above referred-to exchange between Ms. Keegan and her attorney is the only portion of her testimony that arguably could furnish a basis for the presumption of continuing disability. This argument is curious particularly since the Secretary’s own brief concedes that the record does contain a “claim” by the claimant that her condition remained the same as it was at the time of the initial hearing. In any case it is clear that Ms. Keegan’s testimony, taken as a whole clearly meets her Kuzmin burden. For example, she testified to difficulty with climbing stairs, and doing housework, weakness in the legs, collapse, and episodic palpitations. Tr. 36-37. These symptoms are undeniably consistent with continuing disability.
Similarly, we can dispose with the Secretary’s argument that Ms. Keegan failed to meet her Kuzmin burden because she testified that she was somewhat less anxious than she had been at the time of the prior hearing, at least to the extent that her former husband was a source of her anxiety. Appellee’s Brief at 10. This is similar to the situation posed in Daring where we concluded that “[t]here is also no basis to support the AU’s reliance on his own impressions that Daring’s relationship with her former boyfriend had been ‘primarily responsible for the claimant’s severe emotional outbursts.’ ” (emphasis in original). Daring, 727 F.2d at 70. In the present case there is similarly no basis for an inference that Ms. Keegan’s husband was the sole cause or even a significant cause of Ms. Keegan’s anxiety. Indeed, it is more likely that Ms. Keegan’s physical condition and the attendant difficulties she experiences in attempting to cope with her illness are the main source of her anxiety. The Secretary’s argument has even less force than it would have if posed in Daring, since in the present case, unlike Daring, the AU’s opinion never mentioned Ms. Keegan’s supposed reduced anxiety in her findings.
The district court also concluded that notwithstanding Ms. Keegan’s failure to meet her burden, the Secretary met her burden of proof to rebut the presumption of continuing disability. In view of our conclusion that Ms. Keegan did offer sufficient evidence to raise a presumption of continuing disability, we must turn to the issue of whether there is substantial evidence to support the Secretary’s findings that Ms. Keegan’s disability had ceased. If we conclude, as the district court did, that the Secretary’s decision was supported by substantial evidence we would have to accept her findings as conclusive. Daring, 727 F.2d at 68. In this regard the district court stated that the Secretary met her burden with Dr. Kastenbaum’s report and the testimony of Ms. Keegan.
As in Kuzmin a comparison between the evidence before the first AU and the termination proceedings record reveals a marked similarity between the two. Kuzmin, 714 F.2d at 1238. For example, the first AU in finding disability considered the medical reports of Drs. Farber, an administration consultant, and Chirieleison. Tr. 142. Dr. Farber concluded that Ms. Keegan was suffering from “rheumatic heart disease, mitral stenosis and insufficiency with the insufficiency predominating ... enlargement of the left atrium and the outflow tract of the left ventricle,” along with “premature atrial and ventricular contractions.” Tr. 107. That report continued
Mrs. Keegan has evidence of strain on her cardiovascular system resulting from her damaged mitral valve. If progression of the strain is to be kept to a minimum she will have to curtail her physical activities. She has too much to care for at home and should really have help with her housework. She could not consider doing work outside of the house and continuing with her housework. If she had a job, it would have to be a sedentary type of occupation, and she would then have to have full time help at home.
Tr. 107 (emphasis added). Dr. Chirieleison stated in his report that Ms. Keegan had a “significant cardiovascular problem with her mitral stenosis and insufficiency causing her to have some evidence of cardiac decompensation in regards to her supraventricular tachycardia.” Tr. 134. He also referred to a stress cardiogram which showed “marked impairment of her functional aerobic impairment [sic].” Tr. 134. Dr. Chirieleison concluded that “Mrs. Keegan with her rheumatic valvular disease is certainly not capable of performing any strenuous activity or indeed any employment which would require her to be under stress.” Tr. 134.
The AU in the second de novo hearing considered all the foregoing along with the medical report of an administration consultant, Dr. Kastenbaum. Dr. Kastenbaum concluded that Ms. Keegan had an enlarged heart, rheumatic heart disease with mitral valve disease which was most likely mitral stenosis, and that she probably has episodes of atrial fibrillation. He classified her as “American Heart Association Class 2 to 3.” Tr. 179. The AU apparently seized upon the portion of Dr. Kastenbaum’s report which stated that Ms. Keegan “is apparently able to carry out her daily activities without much in the way of symptoms, but does get help with her housework by her children” and that she “[h]as not had symptomatic failure for the last four years at least that required hospitalization.” Tr. 179 (emphasis added).
Given the substantially similar clinical findings of Drs. Farber, Chirieleison and Kastenbaum, namely an enlarged heart, rheumatic heart disease, and mitral stenosis, along with Dr. Kastenbaum’s classification of Ms. Keegan as being between American Heart Association 2 and 3, it is apparent that her condition has not improved to the point where she is capable of gainful activity. A person between American Heart Association classes 2 and 3 will experience symptoms at something less than ordinary activity and is only asymptomatic at rest. Further, Dr. Kastenbaum’s statement to the effect that Ms. Keegan is capable of conducting her daily activities “without much in the way of symptoms” was conditioned on her receiving help with her housework from her children. The language suggests that Ms. Keegan might not be able to conduct her daily activities, much less hold down a job, without help with her housework. This is practically identical to the conclusion reached by Dr. Farber, Tr. 107, which was one basis for the initial determination of disability.
The AU also apparently relied on Dr. Kastenbaum’s noting the absence of “symptomatic failure” for four years “at least that required hospitalization.” The non-occurrence of an attack serious enough to require hospitalization is hardly inconsistent with a continuing disability. All three examining physicians and the AU at the termination hearing concurred that Ms. Keegan could be asymptomatic if she remained at rest; and that any symptoms she does experience can be relieved by rest. Therefore, the very nature of her illness is such that if she carefully limits her activity she should not require hospitalization. Hence, the absence of symptoms severe enough to require hospitalization in this case does not constitute substantial evidence of non-disability. In this regard it is also instructive to note that Dr. Kastenbaum considered Ms. Keegan’s condition serious enough to warrant consideration of her as a possible candidate for open-heart surgery. Tr. 179.
Based on the foregoing we conclude that Dr. Kastenbaum’s report did not furnish a basis for rebutting the presumption of continuing disability. We shall briefly consider the district court’s conclusion that Ms. Keegan’s testimony constituted sufficient evidence to enable the Secretary to rebut the Kuzmin presumption.
The district court’s memorandum opinion stated that “[t]he Secretary has met her burden by showing through Dr. Kastenbaum’s report and by testimony from the plaintiff, that the plaintiff is not now disabled.” App. 8A at 4. If the district court is suggesting that Ms. Keegan’s testimony standing alone can furnish the basis for rebutting the Kuzmin presumption, we point out that this issue was not addressed in Kuzmin or Daring. In Daring we made it clear that a claimant could meet her Kuzmin burden by offering her own testimony, and then be given the benefit of a presumption of continuing disability. Once the claimant offered such evidence the Secretary “must present evidence, that there has been sufficient improvement in the claimant’s condition to allow the claimant to undertake gainful activity.” Kuzmin 714 F.2d at 1237. While it is conceivable that a case could arise where the testimony of the claimant alone is sufficient to rebut the Kuzmin presumption of continuing disability, our concerns for “[bjasic principles of fairness as well as the need to provide both the appearance and fact of consistency” lead us to conclude that, at least in most cases, the Secretary should, rely on more than solely the claimant’s own testimony to rebut the presumption of continuing disability. See Early v. Heckler, 743 F.2d 1002 at 1007 (3d Cir.1984) (unrepresented claimant’s equivocal testimony not substantial evidence of improvement). Therefore, given the administration’s power to require the claimant to submit to medical examinations, 20 C.F.R. § 404.1517 (1984), our concerns for fairness and administrative consistency suggest that medical evidence rather than claimant’s testimony standing alone should furnish the basis to rebut the Kuzmin presumption. It is conceivable that in a given case medical evidence will not be sufficient to rebut the presumption but that extremely damaging admissions made by the claimant would be sufficient. Therefore, it is not possible to categorically state that a claimant’s testimony, standing alone, can never constitute sufficient evidence to rebut the Kuzmin presumption, but such cases should be rare.
IV.
In light of the foregoing we will reverse the summary judgment in favor of the Secretary with instructions to remand to the Secretary for reinstatement of benefits commencing August, 1981.
. Ms. Keegan also raised several other objections before the district court, namely: that the ALJ’s conclusion regarding Ms. Keegan’s residual functional capacity was not supported by substantial evidence; that the absence of a vocational expert's testimony along with the ALJ’s taking administrative notice of the existence of sedentary work or that Ms. Keegan could do such work constituted legal error; that Ms. Keegan’s inability to afford a doctor or her refusal to complete a stress test should not provide the basis for a finding of lack of disability. The district court addressed all the arguments except for the final one, finding it unnecessary for the disposition of the case. We will deal, however, only with the objection arguing a misapplication of Kuzmin since that is the sole ground on which Ms. Keegan’s appeal to this court rests.
. Both for purposes of disability insurance and for SSI benefits, disability has been defined as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A)(1982). A person is disabled within the meaning of these provisions "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B) (1982).
. In Daring we also pointed out that a claimant could meet the Kuzmin burden with evidence of continued episodes of hospitalization or even medical reports relied on by the Secretary. Daring, 727 F.2d at 69.
. The American Heart Association has developed a system of classification which categorizes heart patients in terms of the types of activity which will produce symptoms. The classification scheme states in pertinent part:
Functional Class II: Patients with cardiac disease resulting in slight limitation of physical activity. They are comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea, or anginal pain. Functional Class III: Patients with cardiac disease resulting in marked limitation of physical activity. They are comfortable at rest. Less than ordinary physical activity causes fatigue, palpitation, dyspnea, or anginal pain.
Diseases of the Heart and Blood Vessels — Nomenclature and Criteria for Diagnosis, N.Y. Heart Association (6th ed. 1964).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_appbus | 0 | 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.
GREEN et al., v. UNITED STATES.
Circuit Court of Appeals, Ninth Circuit.
May 9, 1927.
No. 5006.
I. Criminal law <@=>1072 — Rule forbidding writ of error, unless assignment of errors is filed, is only rule of practice (Circuit Court rule ID.
Circuit Court rule 11, requiring that no writ of error shall be allowed, unless assignment of error has been filed, is not jurisdictional, but is only a rule of practice.
2. Criminal law <@=>424(0— Statements of defendant not on trial to officers while under arrest held admissible, where evidence connected him with conspiracy (National Prohibition Act [Comp. St. § 1013814 et seq.]).
In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), statements which certain defendant not on trial made to government officers while under arrest were admissible, where evidence tended to connect such defendant with conspiracy charged, notwithstanding that he was not on trial with other defendant; it not even being necessary that he should have been indicted in order to render declarations admissible.
3. Criminal law <@=>423(9) — Testimony of defendant in conspiracy prosecution relative to division of profits held admissible, as statement of one performing services in furtherance of conspiracy.
In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 1013814 et seq.), testimony by defendant, who had pleaded guilty and was called as witness for government relative to division of profits by members of conspiracy, obtained during conversation with bookkeeper, held admissible as statement of one performing services in furtherance of conspiracy and concerning method of operation of defendants.
4. Witnesses <@=>256 — Denying possession to defendants of memoranda used by witnesses to refresh recollection, or separation of portions, held not erroneous, in view of opportunity for inspection (National Prohibition Act [Comp. St. § 10138(4 et seq.]).
In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), denial to defendants of right to possession overnight for inspection of volume containing memoranda of conversations overheard by government witnesses tapping telephone wires, and for separation of portions of book used to refresh recollection of witnesses, held not erroneous, where there was no denial of opportunity to inspect complete volume.
5. Criminal law <@=>650 — Denying application for experimental test of 'witness’ ability to identify voices over telephone held not abuse of discretion (National Prohibition Act [Comp. St. § 101381/4 .et seq.]).
In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 1013814 et seq.), wherein government witness testified to conversations heard on tapping telephone wires, refusal of application for permission to make experimental test of witness’ ability to identify voices heard over telephone held not erroneous, as being within discretion of lower court.
6. Witnesses <@=>326, 330(1) — Refusal, on cross-examination to impeach rebutting testimony, to require' witness to write certain words, held proper (National Prohibition Act [Comp. St. § 101381/t et seq.]).
In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), refusal, on cross-examination to impeach, rebutting testimony, to require witness to write certain words which he had denied to have written on exhibits shown to him held proper, as not proper cross-examination, and as constituting impeachment of impeaching witness.
7. Witnesses <§=>52 (7) — Wife of defendant charged with conspiracy to violate prohibition law held competent witness (National Prohibition Act [Comp. St. § 10138% et seq.]).
Wife of defendant in prosecution for conspiracy to. violate National Prohibition Act (Comp. St. § 10138% et seq.) held competent to testify as witness in his behalf.
8. Criminal law <§=>1186(4) — Excluding testimony of wife of one defendant charged with conspiracy tending to show alibi, held not'to require reversal under ievidence (Judicial Code, § 269, as amended by act Feb. 26, 1919 [Comp. St. § 1246]; National Prohibition Act [Comp. St. § IOf.38% et seq.]).
In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 10138% et seq.), exclusion of testimony by wife of one of defendants, tending to establish alibi as to certain defendants, held not ground for reversal, under Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. § 1246), in view of uncontradieted evidence showing complicity of such defendants in conspiracy charged.
9. Conspiracy <§=>48 — Evidence of conspiracy to violate prohibition law held for jury as to one defendant (National Prohibition Act [Comp. St. § 10138% et seq.]).
Evidence in prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 10138% et seq.) held, as pertaining to. one defendant, sufficient for jury.
10. Jury <§=>103(6) — Denial of challenge to jurors who had formed opinion held not erroneous, where they stated opinion would be disregarded (Rem. Comp. Stat. Wash. § 331).
Under Rem. Comp. Stat. Wash. § 331, relative to acceptance of juror who has formed or expressed opinion, denial of challenge to" jurors who had formed opinion, but stated that it was not fixed opinion, and could be disregarded, and that they would render verdict according to evidence, held not erroneous.
11. Criminal law <§=>1059(3) — Failure to except to court’s charge as comment on evidence precludes consideration on appeal.
Failure of defendants to except to charge of court on ground that it constituted a comment on the evidence precludes consideration thereof on appeal.
Rudkin, Circuit Judge, dissenting.
In Error to the District Court of the United States for the NQrthem Division of the Western District of Washington; Jeremiah Neterer, Judge.
Charles S. Green and others were convicted for conspiracy to violate the National Prohibition Act (Comp. St. § 10138% et seq.), and they bring error.
Affirmed.
George F. Vanderveer, of Seattle, Wash.,( for plaintiffs in error.
Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
Rehearing denied July 18, 1927.
GILBERT, Circuit Judge.
The plaintiffs •in error here are others of the defendants who were convicted on the trial of the indictment which was under consideration in the ease of Olmstead et al. v. United States (No. 5016) 19 F.(2d) 842. They bring the case to this court .upon a separate writ of error.
A motion is made to dismiss the writ of error on the ground that the record contains no assignments of error. The writ was allowed and service of citation was had on March 8, 1926. Whether an assignment of errors was filed at the same time does not appear from the record, but the record shows that on May 6, 1926, by stipulation of counsel, an “amended assignment” of errors was filed in the court below. The case was not docketed in this court until November 10, 1926. We are inclined to the view, expressed by Judge Baker in Hultberg v. Anderson (C. C. A.) 203 F. 853, that the requirements of rule 11 that no writ of error shall be allowed unless an assignment of errors has been filed is not juris- . dictional, but is only a rule of practice. Such, also, was the view expressed by Judge Denison in Miller v. United States (C. C. A.) 300 F. 529. The motion is denied.
Error is assigned to the admission in evidence of statements which certain defendants not on trial made to government officers while under arrest; said statements having, it is said, no purpose or tendency to promote the objects of the conspiracy, such as the statements of Capt. Jack Rhodes, made at the time of the seizure of the Eva B, as charged in the ninth overt act of count 1. He stated that the Eva B had gone to a point in American waters and there loaded a cargo of liquor, and had then gone to a point in Canadian waters to await an opportunity to bring the liquor into the United States under cover of darkness. Objection was made to the testimony as hearsay. The court, in overruling the objection, instructed the jury that the statement was not to be considered against any of the other defendants under any circumstances, unless it was shown that„there was a conspiracy entered into as charged in the indictment, and that, unless it were shown that there was a conspiracy between the defendant Rhodes and some of the other defendants on trial, or all of them, they could not consider it under any circumstances. It is to be noted, also, that the statements of Rhodes were but corroborative of those of Erickson and Green as to the movements of the Eva B, which statements were received in evidence without objection.'
At the close of the trial the defendants moved to withdraw from the consideration of the jury the ninth overt act for want of competent evidence to sustain it. The motion was denied, but the court instructed the jury that statements by any of the defendants, either to officers of the law or others not involved in the conspiracy, not made in furtherance of the conspiracy, were to be considered as evidence only against the parties making the same, and if such parties were not then on trial the jury should disregard the same. If there was error in that instruction, it was error in favor of the defendants, for evidence had been received tending to connect Rhodes with the conspiracy charged, and, such being the case, his acts or declarations were admissible. That he was not on trial with the other defendants was immaterial, Clune v. United States, 159 U. S. 590,16 S. Ct. 125, 40 L. Ed. 269; Isenhouer v. United States (C. C. A.) 256 F. 842; Reeder v. United States (C. C. A.) 262 F. 36; Sprinkle v. United States (C. C. A.) 141 F. 811; United States v. McKee, 3 Dill. 546, Fed. Cas. No. 15,685. And to render the declarations admissible it was not even necessary that he should have been indicted, United States v. Cole, 5 McLean, 513, Fed. Cas. No. 14,832. The assignments of error directed to evidence of statements made by Curry, Fletcher, Bennett, and Graignic, who also were defendants, but not on trial, come within the principles above announced, and require no further discussion.
"We find without merit, also, the assignment as to the testimony of McLean. McLean was a defendant who had pleaded guilty and was called as a witness for the government. He testified, among other things, that he had a conversation with Bennett, the bookkeeper, who was a defendant, but not on trial, concerning the division of the profits, in which Bennett said: “Eleven men put in $1,000 apiece. It was not just a personal conversation. My duties did not call upon me to know anything about that, but it came up one day in my general work.” This was objected to on the ground that it was a statement not made in the course oí business by any of the defendants on trial. It was a statement, however, of one who was performing services in the furtherance of the conspiracy, and it concerned the method of operation of the defendants.
Error is assigned to what is said to have been the refusal of the trial court to permit full and free opportunity to inspect the volume of memoranda of conversations overheard by witnesses listening in on telephone wires. We search the record in vain for evidence of-error under this assignment. The defendants requested an order of the court to turn over to them the book of memoranda containing 700 pages, that they might take it into their possession and inspect it overnight, for purposes of cross-examination on the following day. Again they requested that those portions of the book which had been used to refresh the recollection of the witness Whitney be in some way separated from the remainder of the book and be surrendered to them for inspection. These requests were denied, but there was no denial of opportunity to inspect the volume.
For the purpose of impeaching the witness Corwin, the defendants made application for permission to make an experimental test in open court, or elsewhere, in the presence of court and jury, of Corwin’s ability to identify voices heard over the telephone. The denial of the application is assigned as error, but we think it was within the court’s discretion. 22 C. J. 756. The request for leave to make the experiment was not an offer to show as a scientific fact the impossibility of recognizing voices in conversations over the telephone, but was a demand that the witness be required to subject himself to a test of his ability to recognize voices, under conditions to be created which, in the very nature of things,-could not be identical with conditions under which he had heard the voices to which he testified. Such an experiment would not tend to enlighten a jury, and could only tend to confusion by the creation of collateral issues. It is common knowledge that the recognition of voices heard over telephone wires depends upon many and diverse conditions. In such an experiment as was requested, there could be no certainty of obtaining the conditions under which the witness had listened to conversations, and in any such experiment recognition of the voices would largely depend on the tone force and projective quality of the speaker’s voice, the strength of the electric current, and the absence of disturbing sounds. What was said in United States v. Ball, 163 U. S. 662, 673, 16 S. Ct. 1192, 1196 (41 L. Ed. 300), is applicable here: “The granting or refusal of such a request, first made in the midst of the trial, was clearly within the discretion of the court.”
It is assigned as error that the court restricted the cross-examination of the witness Fryant, and excluded the defendants’ offer to impeach his testimony. Behneman had to some extent been associated with Fryant, a prohibition officer, in listening in on the wires. He subsequently left that service and associated himself with the defense, and he told Olmstead that he had been listening in on his wires, and later he appeared as a witness for the defendants. Fryant had testified as a witness for the prosecution. Behneman’s testimony contradicted Fryant’s in some particulars. Fryant was called in rebuttal and contradicted several of the items of Behneman’s testimony. On his cross-examination, to impeach his rebutting testimony, Fryant was shown three of the defendant’s exhibits, and he denied that certain words thereon were written by him. Defendants’ counsel then asked him to write those words. This was objected to as not proper cross-examination, and as impeaching an impeaching witness. The same objection was made to the attempted cross-examination of Fryant on Exhibits B-l to B-27. Those exhibits had not been received in evidence. They had been offered for identification, but excluded by the court as incompetent. We find no error in the rulings. They were clearly sustainable on both grounds of objection.
Under our decision in Rendleman v. United States, 18 F.(2d) 27, the wife of a defendant in the present case was competent to testify as a witness in his behalf. The question arises whether it was reversible errdr to exclude the testimony of Green’s wife, which was offered to show that she, her husband, and the defendant Wm. P. Smith were at Portland, Or., in 1924, from July 7 to September 9, inclusive, or the testimony of Harvey’s wife, offered on behalf of the defendants Harvey and. Thompson, to show that in 1924, continuously from July 3 to July 10, inclusive, she and her husband were at a place 80 miles distant from Seattle. As it affects the defendant Smith it is very clear that the exclusion of Mrs. Green’s testimony is no ground for reversal. The purpose of it was to prove an alibi as against two features of the evidence against Smith:
First, the testimony of Corwin that Smith admitted to him that he' was in the wholesale liquor business at 3116 Eastlake avenue until the early part of September, and the testimony of Whitney that Smith admitted to him that he had lived at 3116 Eastlake avenue, Seattle, “from the month of July on,” and that Smith admitted the truth of Whitney’s statement that he (Whitney) had found on Smith’s premises, when raided on November 26, 1924, “a very good history of Smith’s liquor transactions.” The papers so found were admitted in evidence and they contained entries of liquor transactions, bearing dates of July 7 to*' July 14, inclusive. Among the papers was the lease of the premises to Smith, which he signed and acknowledged at Seattle on July 14,1924, as attested by the notary’s certificate. These papers show conclusively the untruth of testimony that Smith was in Portland on those dates.
The other evidence against Smith, sought to be disproved by the proposed proof of alibi, was that which related to Smith’s arrest in Seattle on September 7,1924. Jones, a police officer, testified that he had been cautioned to keep his eye on Smith; that he observed suspicious movements by Smith on September 7, 1924, at and near the Georgetown police station, in Seattle; that Smith got into his car, the number of which was 130,947, and started away, that the officer followed him until Smith reached a point where there was a Cadillac car in which were 3 men and 18 cases of liquor; that Smith came along with no lights; that about two blocks away he commenced to switch his lights off and on; that the officer answered by a similar switching of his lights; that Smith drove up, and the officer arrested him and the men in the Cadillac; and that Smith said to the officer that it was Olmstead’s car and booze and that they were on their way to Portland.
There was contradiction by another witness, who testified that on that morning he heard Smith state to Jones at the Georgetown station that he had come back to get the two Cadillac cars which were being held at the station, which he said belonged to Olmstead. Obviously testimony of Green’s wife that Smith was at Portland on September 7 could have no probative value to disprove the well-established fact of his arrest by a public officer in Seattle on that date. Neither that fact, nor the evidence of the circumstances which attended the arrest, has been disputed by any witness, unless it be by the testimony • of Green’s sister, who, as a witness for the defendants, testified that Green, his wife, and Smith came to Portland on September 7,1924 —evidence wholly inconsistent with the offered testimony of Green’s wife that they went to Portland on July 3 and remained there until September 9.
As to the defendant Green, the only evidence which the proposed alibi would have tended to contradict was the testimony of Cor-win that he saw Green visit Olmstead’s house during the latter part of August and the early part of September, 1924. That was a very unimportant portion of the evidence against Green. There was undisputed testimony that Green was early associated with Olmstead, and that he actively participated in the importation of liquors in furtherance of the conspiracy. He was one of the crew of the Eva B when she was seized on October 5, 1924, while carrying a large cargo of liquors. Whitney testified that, at the time of the raid of the Olympic Repair Shop on September 11, 1924, the defendants Kern and Green said: “We are in the whisky business all right; but we don’t like to go to jail, unless you catch some whisky on us. You didn’t get us this time; you are too soon.”
Whitney testified further than Green stated to him in November, 1924, that he and Kern had been in the whisky business, and had been on the Eva B at the time when she was captured in Canadian waters. There was other testimony of Green’s association with the Olmstead group, and of his presence at a meeting of them at Olmstead’s house on November 17, 1924. There was undisputed evidence that Green’s house had been used as an office for the disposition of liquor, and that telephone calls that came to the house would be relayed either by Green or his wife to Smith or to the defendant Carroll.
The purpose of the testimony so offered as to the defendants Harvey and Thompson must have been to contradict the testimony of government witnesses concerning conversations between the said defendants overheard on the telephone on July 4, 5, and 10, 1924, conversations which indicated participation on the part of both in the work of the conspiracy. But, aside from the testimony as to those conversations, there was abundant and convincing evidence of the complicity of both of said defendants in the conspiracy, evidence which is in no particular contradicted. McLean testified that about May 1,1924, he was hired by Thompson at a salary of $50 per week to work for Olmstead in taking liquor orders over the telephone, and that Olmstead later raised the weekly pay to $100, that he worked with Thompson taking the morning shift, while he took the afternoon shift.
There was evidence that Harvey was one of the defendants who invested $1,000 in the venture at the beginning, and that it was he who about the middle of July, 1924, told McLean that the wires had been tapped. It was shown, also, that Harvey was one of the defendants present at the garage on Lenora street when it was raided on April 17, 1924, and a truck containing 80 eases of liquor was seized, and that on many occasions he was seen with Olmstead at the Olympic Repair Shop, a place of rendezvous of the defendants. There was the testimony of McPherson, a disinterested witness, as to Harvey’s activities at the Mercer Street Garage at a time when a number of the defendants were unloading small square sacks from a truck, and the defendant Nicholles'stated that there were 400 cases of whisky there which had come on a truck, and that daily during the months of July and August, for 12 or 14 days, liquor was brought into that garage. Whitney testified to two conversations which he overheard between Thompson and Harvey on July 11, one at 2:56 p. m., and the other at 5:56 p. m., referring to the business of selling and delivering liquor, in which Harvey said, “Well, Dan’s stuff is ready;” and Thompson replied, “All right; send it out.”
We cannot believe that the exclusion of this offered testimony, testimony which was under the ban of the common law, is ground for reversal of the judgment as to any of the defendants. The evidence of the complicity of Smith, Harvey, and Thompson in the conspiracy is direct, convincing, and wholly uneontradieted. The jury must have decided the issues upon the broad lines of that testimony, and it is not believed that their verdict could have been affected by the evidence offered to show that at certain dates they were not at the places where witnesses for the government said that they were. If any defendant or any witness had denied any of the testimony adduced by the government, so that the jury would have been called upon to weigh conflicting testimony, the proffered evidence of an alibi might have been sufficient to affect the result, and its exclusion would have been error, requiring reversal.'
But, while the ruling of the court below may have been technical error, we think it was error which did not affect the substantial rights of any defendant. Under section 269 of the Judicial Code (Comp. St. 1919, § 1246), a conviction is not reversible for errors on the trial where the defendant’s guilt is clear. Haywood v. United States (C. C. A.) 268 F. 795; Rich v. United States (C. C. A.) 271 F. 566; Jones v. United States (C. C. A.) 296 F. 632; Fitter v. United States (C. C. A.) 258 F. 567; Raine v. United States (C. C. A.) 299 F. 407; Hobart v. United States (C. C. A.) 299 F. 784; Simmons v. United States (C. C. A.) 300 F. 321; Shuman v. United States (C. C. A.) 16 F.(2d) 457; Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185.
It is contended that the defendant Wm. P. Smith was merely a customer of the 01m-stead gang, and not a partner or agent, and that his “motion for a directed verdict should have been granted.” We do not find in the record that such a motion was made or denied,_ or that a ruling thereon is assigned as error. It would be a sufficient answer to such an assignment, if it had been made, to point to the evidence against Smith which has just been adverted to.
Error is assigned to the denial of the defendants’ challenge of certain of the jurors for actual bias. While it was shown that they had heard about the case, and some of them had formed an opinion as to the guilt or-innocence of the defendants, all admitted in substance that it was not a fixed opinion, that it could be disregarded, and that they would endeavor to render a verdict according to the evidence, under the instructions of the court. We think there was no error. Section 331, Washington Compiled Statutes (Remington), provides: “Although it should appear that the juror challenged has formed or: expressed an opinion upon what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.” We are not convinced that there was abuse of discretion in denying the challenge. Spies v. Illinois, 123 U. S. 131, 8 S. Ct. 22, 31 L. Ed. 80.
It is contended that the trial court erred in commenting on the evidence and in attributing to the witness McLean the testimony that $1,000 was subscribed and contributed by each “of 11 of the men and $11,000 by Olmstead to promote the enterprise, and it is asserted that McLean did not so testify, but testified merely that he had been so informed by one of the defendants. It is sufficient answer to this contention, which to us seems trivial, to point to the fact that no exception was taken to the charge on the ground now presented. Nor do- we find that the court went beyond permissible limits in commenting on the testimony, or that any exception was taken specifically to any expression of the court’s discussion of the evidence.
The other points made on behalf of these defendants have been considered in the opinion in the case of Olmstead v. United States (No. 5016) 19 F.(2d) 842, and are not discussed herein.
We find no error. The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_applfrom | J | 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).
COMMISSIONER OF INTERNAL REVENUE v. GILMORE’S ESTATE and six other cases.
Nos. 7937-7943.
Circuit Court of Appeals, Third Circuit
Argued May 7, 1942.
Decided Aug. 28, 1942.
Samuel H. Levy, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, and Bernard Chertcoff, Sp. Assts. to the Atty. Gen., on the brief), for petitioner.
Andrew B. Young, of Philadelphia, Pa. (Richard K. Stevens, of Philadelphia, Pa., on the brief), for respondents.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
GOODRICH, Circuit Judge.
Under § 112(b) (3) of the Revenue Act of 1934, under which this litigation arises, no gain or loss is recognized “if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.” One of the given definitions of a “reorganization” is a “statutory merger or consolidation”. This appeal presents two questions: first, whether the transaction, hereinafter described, between a holding company and operating company constituted a “statutory merger or consolidation” and secondly, if it did, whether it was, nevertheless, of such a character that the exchange of stock incident thereto was a taxable event.
The respondents were shareholders in the Webster Finance and Investment Company, a New Jersey holding company. They had received their shares from Warren Webster, Sr., who, upon the organization of the holding company in 1927 obtained all its shares for a bare majority of the stock of the operating company, Warren Webster and Company, incorporated in New Jersey in 1895. There is evidence in the record, although no express finding of fact by the Board, that the device of a holding company was chosen by Mr. Webster to insure that the control of the operating company remain in the hands of those active in its management and at the same time enable him to distribute non-controlling beneficial interests, the non-voting stock of the holding company which constituted half of its shares, to the members of his family and employees who at the time did not participate in its management or whose future relationship thereto was uncertain.
On October 28, 1935, the directors of the two corporations executed an “Agreement of Merger and Consolidation”. The agreement provided that the operating company was to be the surviving corporation. All “rights, privileges, powers and franchises” of the holding company and “all [its] property, * * * except as otherwise provided in Article X” were to vest in the survivor. Under the latter Article, all of the assets, with the exception of the shares of the operating company, were to be distributed as a dividend to the Shareholders of the holding company which was to transfer the shares it held in the operating company to the surviving corporation. There was an additional article which enumerated the powers of the surviving company.
After approval by the respective shareholders, the agreement was filed with the' Secretary of State of New Jersey. The respondents, in accordance with a provision of the agreement of merger, surrendered their holding company stock to the surviving corporation and received its shares in return. The holding company stock was thereupon cancelled. The Commissioner asserted that the respondents were taxable upon the gain resulting from this exchange. The Board of Tax Appeals, two members dissenting, did not sustain his position and he took 'this appeal.
Was There a Statutory Merger?
We reject without hesitation the Commissioner’s first argument that there was no merger. Admonished by the argument that we should apply Congressional language in the ordinary sense we think that the term used by Congress “statutory merger or consolidation” means, as Treasury Regulation 86, Art. 112(g)-2 states “a merger or consolidation effected in pursuance of the corporation laws of a State or Territory or the District of Columbia”. The Commissioner’s argument, based upon the dissenting opinion of the Board contends that all of the definitions of the term “merger” require that there be a transfer of property. There was no transfer of property, so it was argued, in the surrender by the holding company to the operating company of the shares of the latter corporation.
One may question whether this argument is now open to the Commissioner. A stipulation between the parties states that the “Agreement of Merger and Consolidation” was approved by the stockholders of the two companies in conformity with the general corporation law of the State of New Jersey and that the appropriate officers of the companies, following the requirements of the New Jersey statute filed the certificates with the appropriate official. However, this point need not be stressed to conclusion. Possibly all that was meant to be admitted was that certain of the statutory procedures were in fact followed. The conclusion that there was a statutory merger can stand upon other bases.
The Board’s finding of fact states that the officers of the companies followed the requirements of the statutes of New Jersey in filing their documents relative to the merger and that “The filing of those documents effected the merger of the two corporations.” The New Jersey statutes provide for a certification by the Secretary of State of a copy of the agreement filed and that such certification “shall be evidence of the existence of such new or consolidated corporation.” N.J.S.A. 14:12-3. Such certification is part of the record in this case.
Furthermore, we can find no provision under the New Jersey Statutes on “Merger or Consolidation”, N.J.S.A. 14:12-1 et seq., which makes it a prerequisite to a merger that there be a transfer of property as contended by the Commissioner. Section 14:12-5 does provide that when a merger or consolidation is effected “all the rights, privileges, powers and franchises * * * all * * * property [etc.] shall vest in the consolidated corporation as effectually as they were vested in the several and respective former corporations.” However, this falls far short of saying that if the absorbed corporation owned no property, it could not participate in a merger. Were the Commissioner’s contention valid, then it would follow that a “pure” holding company could not become a party to a merger in New Jersey. No statute or decision of that State standing for this proposition has been cited to us; nor have we been able to find any to this effect.
We see no basis on which it can be held that the transaction here questioned was not a merger under the New Jersey statutes and, therefore, not a literal compliance with the Act of Congress within the definitions of the New Jersey statutes and within the definitions of Treasury Regulations construing the Act of Congress.
Was the Merger a Tax Free Transaction?
It is now settled that whether a transaction qualifies as a reorganization under the various Revenue Acts does not turn alone upon compliance with the literal language of the statute. The judicial interpretation has determined that something more may be needed and that, indeed, under some circumstances, something less will do. Our concern in this case is the “something more” since we have concluded that there was a literal compliance.
The starting point is Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355. The difference between that case and the one here to be decided is clear. The new corporation was set up for temporary purposes and dissolved when it had accomplished the purpose for which it was created, namely, to get part of the holdings of the old corporation into the hands of its shareholders. A distribution in fact was accomplished and the question was whether having made formal compliance with the statute the distribution escaped classification as a taxable event. Despite the petitioner’s description of the events in the instant case as devious mechanics we see no such situation in this case as that presented in Gregory v. Helvering.
The reorganization provisions were enacted to free from the imposition of an income tax purely “paper profits or losses” wherein there is no realization of gain or loss in the business sense but merely the recasting of the same interests in a different form, the tax being postponed to a future date when a more tangible gain or loss is realized. This is recognized by the Treasury Regulations. They state that: “The purpose of the reorganization provisions * * * is to except from the general rule certain specifically described exchanges * * * which effect only a readjustment of continuing interests in property under modified corporate forms. Requisite to a reorganization under the Act are a continuity of the business enterprise under the modified corporate form, * * * continuity of interest therein on the part of those persons who were the owners of the enterprise prior to the reorganization.”
In this case we have two corporations established long before the transaction in question, an operating company and a holding company. They desire to get rid of the holding company. The shareholders of the holding company were the majority owners of the operating company. By reason of the plan chosen they received the shares they had theretofore held indirectly through the holding company. There was no conversion into cash on withdrawal. Rather, the entire history of the two corporations reveals that the interests obtained through the merger were to be continuing and the surviving corporation kept on doing business with no change in management or personnel after the merger. We have, then, a genuine transaction in the sense that it was operating upon the situation of the companies as they stood. We have the continuity of uninterrupted corporate existence of the merged company and the interest of all prior owners therein, except, of course, of the dropping out of the holding company. Are there further requirements?
Argument for the Commissioner maintains that what has been done is still not enough. The result to be reached through this merger, it is said, could have been reached more directly by an out and out liquidation which, of course, would have been taxable under § 115(c). Granted that the elimination of the holding company as a subject for taxation was a legitimate business object, it does not follow that the method taken in getting rid of it is a tax-free method. We think this gets down to the proposition that if there are two ways of accomplishing a legitimate business result, one of which clearly creates a taxable transaction, one is equally subject to tax liability if he chooses the other unless there is an adequate business reason for the particular method used. We do not think this is the rule of the statute, the Regulations, nor, as we read them, the decisions. The cases cited by the appellant do not extend the Gregory doctrine this far. In each of them, that which was attempted to be accomplished in a tax-free manner was not within the spirit and purpose of the reorganization provisions. On the other hand, in a recent case, the Supreme Court employed the Gregory principle to bring within the reorganization provisions a transaction which technically could have been excluded where basically there was present a continuity of interest but in a different form so that the transaction was within the spirit of the exemption provision. These authorities, we believe, support a negative answer to the question posed. Both parties have cited a group of cases arising out of the reorganization of the General Baking Company. While what transpired there as a result of the reorganization of the parent and subsidiary corporations was far more complicated, we find that the principle which withdrew them from the condemnation of Gregory v. Helvering underlies also the present case. As was said in one of those cases, the fact of there being a merger of a holding company with an operating company does not deny it the exemption provided by the Act.
Our conclusion is that what took place between these companies was a “reorganization in reality”, to use the language of the court in the Gregory case, and that it complies with the statutes and the decisions under it.
The decisions of the Board of Tax Appeals are affirmed.
26 U.S.C.A. Int.Rev.Acts, page 692.
Revenue Act of 1934, § 112(g) (1) (A), 26 U.S.C.A. Int.Rev.Acts, page 695.
1941, 44 B.T.A. 881.
“10. On the 2nd day of December 1935, the said ‘Agreement of Merger and Consolidation’ was approved by the respective stockholders of Warren Webster and Company and W. F. I. [Webster Finance and Investment Company] in conformity with the general corporation law of the State of New Jersey.
“11. On the 5th day of December, 1935, pursuant to the authority granted by the stockholders of Warren Webster and Company and W. F. I. at the meetings referred to in paragraph hereto, marked ‘10’, the appropriate officers of said companies following the requirements of the Statute of New Jersey entitled ‘An Act concerning Corporations (Revision of 1896),’ filed the said ‘Agreement of Merger and Consolidation’ and certificates relative to the vote of the stockholders, hereinbefore referred to as Schedule 3, in the Office of the Secretary of State of New Jersey.”
See Leavenworth County Commissioners v. Chicago, Rock Island & Pacific Ry., 1890, 134 U.S. 688, 701, 10 S.Ct. 708, 713, 33 L.Ed. 1064, where the Court was called upon to determine whether a consolidation had been effected. The state statute provided that a certified copy from the office of the Secretary of State of the articles of consolidation would be conclusive evidence of the consolidation. The Supreme Court quoted with approval the language of the lower court to the effect that in a suit between the consolidated corporation and an individual or other corporation “in regard to any matter affecting its rights, its powers, its authority to make contracts, to sue or to be sued, the production of the paper mentioned shall end all inquiry into its existence as a corporation, with such powers as the law confers on it.” In Person & Riegel v. Lipps, 1907, 219 Pa. 99, 67 A. 1081, it was held that a certificate under the seal of the Secretary of the State of New Jersey was competent evidence to establish the fact and the validity of an increase of capital stock by a New Jersey corporation.
Helvering v. Alabama Asphaltic Limestone Co., 1942, 315 U.S. 179, 62 S.Ct. 540, 86 L.Ed. —.
The facts were these: the taxpayer owned all of the stock of the United Mortgage Corporation which owned 1,000 shares in another corporation. She caused to be organized the Averill Corporation to which the 1000 shares were transferred by United in exchange for its stock going to taxpayer. Six days later Averill was dissolved, the 1,000 shares, its sole asset, being distributed to taxpayer who immediately sold them. Averill never transacted any business.
The Gregory case was the subject of criticism (which we do not share) as imposing a requirement not found in the statute. It was therefore argued that it should be limited to the facts of the ease. Rudick, The Problem of Personal Income Tax Avoidance (1940) 7 Law and Cont. Problems, 243, 254; Fahey, Income Tax Definition of “Reorganization” (1939) 39 Col.L.Rev. 933, 936 et seq.; Hendricks, Developments in the Taxation of Reorganizations .(1934) 34 Col.L.Rev. 1198, 1205 et seq., discussing the decision of the Circuit Court of Appeals, Helvering v. Gregory, 2 Cir., 1934, 69 F.2d 809 which was affirmed by the Supreme Court, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355. But cf. Note, Corporate Reorganization to Avoid Payment of Income Tax (1935) 45 Yale L.J. 134 and see Magill, Taxable Income (1936) p. 141.
See Seidman’s Legislative History of Federal Income Tax Laws (1938) pp. 795, 796, 332-340.
Treas.Reg. 86, Art. 112(g)-!.
See Chisholm v. Commissioner of Internal Revenue, 2 Cir., 1935, 79 F.2d 14, 15, 101 A.L.R. 200, certiorari denied, 1935, 296 U.S. 641, 56 S.Ct. 174, 80 L.Ed. 456. Petitioner and four others transferred all the shares of an engineering corporation to a partnership which then performed the option given to another corporation to purchase them. After the sale the partnership continued to do business. The Commissioner sought to tax them then upon the sale, contending that the transaction was governed by Gregory v. Helvering. The court did not agree and said of the Gregory case, “the incorporators adopted the usual form for creating business corporations; but their intent, or purpose, was merely to draught the papers, in fact not to create corporations as the court understood that word. That was the purpose which defeated their exemption, not the accompanying purpose to escape taxation; that purpose was legally neutral. Had they really meant to conduct a business by means of the two reorganized companies, they would have escaped whatever other aim they might have had, whether to avoid taxes, or to regenerate the world.”
Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Aets, page 703.
The respondents assert that there were numerous additional objects:
1. The original purpose for the existence of the holding company, that the control of the operating company remain in those most active in its management, had been served and could be further fulfilled more satisfactorily by trusts and other means.
2. Holding companies were being regarded unfavorably by current legislation and taxing acts. This is in accordance with the Board’s statement.
3. Corporate expenses, other than taxes would be decreased if there were only one corporation.
4. A merger would be the most appropriate means of solving some of the problems encountered because some of the holding company stock was held by fiduciaries.
5. The powers of the operating company had to, for business reasons, be enlarged and a merger would accomplish this.
Query, whether the first and fourth reasons may be termed “business” exigencies. As to the fifth, the Board stated that the merger did accomplish this. However, as the Commissioner pointed out, it does not appear that this is the fact. The merger agreement provided “The objects and purposes * * * shall include and be the objects and purposes for which Warren Webster and Company, * * * was formed, * * * and shall include the following objects: [enumerating]”. This of course does not disclose what the powers of the operating company had been theretofore nor that the powers enumerated are new. Nor do other facts in the record supply this information.
In considering such a question reliance is not to be placed too much on general statements either as to liability or non-liability, although equitable dicta are easily found. For example, “Where for legitimate business purposes a person has a choice of conducting his business transactions without tax liability, such a liability does not arise simply because it would have arisen if another process had been chosen.” Commissioner of Internal Revenue v. Kolb, 9 Cir., 1938, 100 F.2d 920, 926. One may match the petitioner’s quotation that “A given result at the end of a straight path is not made a different result because reached by following a devious path.” (from the Minnesota Tea Co. v. Helvering case, infra, 302 U.S. at page 613, 58 S.Ct. at page 395, 82 L.Ed. 474;) with “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” (from Gregory v. Helvering, supra, 293 U.S. at page 469, 55 S.Ct. at page 267, 79 L.Ed. 596, 97 A.L.R. 1355). Cf. Magill, Taxable Income (1936) 141, f.n. 49.
Thus in two of the cases, there was rather than a distribution to shareholders, a payment to creditors. Minnesota Tea Co. v. Helvering, 1938, 302 U.S. 609, 58 S.Ct. 393, 82 L.Ed. 474; United States v. Hendler, 1938, 303 U.S. 564, 58 S.Ct. 655, 82 L.Ed. 1018. In Helvering v. Elkhorn Coal Co., 4 Cir., 1937, 95 F.2d 732, certiorari denied, 1938, 305 U. S. 605, 59 S.Ct. 65, 83 L.Ed. 384, rehearing denied, 1938, 305 U.S. 670, 59 S.Ct. 141, 83 L.Ed. 435, there was no transfer of all the assets as required by the Revenue Act. In two other cases, there was lacking the continuity of interest which would bring the transaction within the exemption provisions for the courts found that what really had been accomplished was a sale of assets. Morgan Mfg. Co. v. Commissioner of Internal Revenue, 4 Cir., 1941, 124 F.2d 602; Worcester Salt Co. v. Commissioner of Internal Revenue, 2 Cir., 1935, 75 F.2d 251. In Starr v. Commissioner of Internal Revenue, 4 Cir., 1936, 82 F.2d 964, certiorari denied, 1936, 298 U.S. 680, 56 S.Ct. 948, 80 L.Ed. 1401, the device chosen was such as to enable the shareholders to convert their interests into cash and thus realize a tangible profit.
Helvering v. Alabama Asphaltic Limestone Co., 1942, 315 U.S. 179, 183, 62 S.Ct. 540, 86 L.Ed. 775. A creditors’ committee had acquired the assets of an insolvent corporation and transferred them to a new corporation for its stock which went to the creditors of the old corporation. The Court held that there was a continuity of interest in the creditors from the time they instituted bankruptcy proceedings against the insolvent and that the transitional stage of the creditor’s committee did not disrupt that continuity.
Helvering v. Leary, 4 Cir., 1938, 93 F.2d 826; Helvering v. Schoellkopf, 2 Cir., 1938, 100 F.2d 415; Commissioner of Internal Revenue v. Kolb, 9 Cir., 1938, 100 F.2d 920; Commissioner of Internal Revenue v. Whitaker, 1 Cir., 1938, 101 F.2d 640; Commissioner of Internal Revenue v. Food Industries, Inc., 3 Cir., 1939, 101 F.2d 748.
In Helvering v. Leary, supra, the court said at page 828 of 93 F.2d: “The interest of the stockholders of the Maryland Corporation in the business owned by the New York Company and the Maryland Corporation, the holding company, remained, with but slight change, in the property owned by the New York Company after the plan was earned out. It seems clear that such a situation results, in its legal effect, in a reorganization within not only the letter but the spirit of the taxing statute and brings the transaction within that class which Congress plainly intended not to tax until the stockholder finally disposed of his stock and his profit was definitely ascertainable. There was no change in the taxpayer’s position with respect to the ownership of the property but merely a change in the form of the stock certificates held by him.” See also f.n. 19 infra.
Helvering v. Schoellkopf, supra, 100 F.2d at page 417: “The truth is that the liquidation of a holding company is one of those corporate changes which might properly have been made exempt anyway; and indeed §§ 371, 372 and 373 of the Act of 1938, 26 U.S.C.A. ’ §§ 330-330b [26 U.S.C.A. Int.Rev.Code §§ 371-373], have now made it so in certain cases. The underlying purpose of the exemptions in § 112 is to disregard corporate manipulations which do not substantially affect the shareholders’ interest in the properties. Apparently the liquidation of a holding company was not thought of as such a case, and for that reason it was made taxable; but we need not wince when this hiatus is filled by what appears to be an insufficient occasion.”
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_casetyp1_2-3-1 | D | 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 "civil rights - civil rights claims by prisoners and those accused of crimes".
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.
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
Answer: |
songer_state | 31 | 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".
Louis J. ABBRUZZESE, Appellant, v. William P. BERZAK and Postmaster General Elmer T. Classen and United States of America.
No. 76-1882.
United States Court of Appeals, Third Circuit.
Argued June 4, 1979.
Decided July 6, 1979.
Michael J. Mella, P. A., David L. Rutherford (argued), Fair Lawn, N. J., for appellant.
Robert J. Del Tufo, U. S. Atty., Eric L. Chase (argued), Asst. U. S. Atty., Newark, N. J., Mason D. Harrell, Jr., U. S. Postal Service, Washington, D. C., of counsel, for appellees.
Before ADAMS and ROSENN, Circuit Judges, and LAYTON, Senior District Judge.
Honorable Caleb R. Layton, III, United States District Court for the District of Delaware, sitting by designation.
OPINION OF THE COURT
ADAMS, Circuit Judge.
When Congress adopted the Postal Reorganization Act, it provided two types of procedures for resolving labor disputes between the United States Postal Service (USPS) and its employees. Veterans, also known as preference eligible employees, were given the choice of appealing an adverse decision to the Civil Service Commission or invoking those procedures found in the applicable collective bargaining agreement. Non-preference eligible employees, on the other hand, were given recourse only to the process found in their contract.
Louis Abbruzzese, formerly a preference-eligible employee of USPS, was separated from his letter-carrier position following his conviction for mail theft. He received notice of the proposed action on September 24, 1973, in a letter from his employer stating that his removal would become effective on the following October 15, and that he could appeal the decision to the Civil Service Commission within fifteen calendar days after the effective date of such action. The correspondence also stated that Abbruzzese had certain arbitration rights pursuant to the collective bargaining agreement signed by his union and USPS. It did not indicate whether choosing one procedure would have any effect on the availability of the other.
Abbruzzese decided to arbitrate. His decision apparently was motivated in large part by advice from his union indicating that if arbitration proved futile, he would still be able to file an appeal with the Commission provided the appeal was taken within fifteen days after his removal from the rolls This advice, apparently given in good faith, was erroneous. In any event, Abbruzzese decided not to file his appeal within the time specified by the Postal Service in its September 24 letter.
On January 24, 1974, Abbruzzese’s union informed him that it would not pursue arbitration because of his conviction, but that he could nevertheless still appeal to the Commission provided he did so within the upcoming fifteen days. Such an appeal was filed on January 30. However, pursuant to 5 C.F.R. § 752.204, the Commission rejected the appeal as untimely. It stated that Abbruzzese initiated his action well after the appeals deadline, of which he had been informed. Additionally, the Commission held that Abbruzzese did not fall within any exemptions from the requirement. The district court sustained the Commission and Abbruzzese appealed to this Court. We affirm the judgment of the district court.
Appellant first contends that the effect of the Commission’s action is to deny him a hearing in violation of the due process clause of the Fifth Amendment. We disagree. Although Abbruzzese had a property right in his continued employment with the Service, it does not follow that he has a right to a full hearing even when he has failed to file a timely appeal. Due process requires only that he have an opportunity to present his case; it does not require that this opportunity be extended indefinitely.
In the present case, USPS informed Ab-bruzzese of the fifteen-day deadline for appeals. Moreover, it specifically advised him when that period commenced. Appellant nevertheless disregarded such information, choosing instead to rely on advice which ultimately turned out to be incorrect. We believe that Abbruzzese in fact forfeited his appeal rights by failing to file such action in a timely manner, and for that reason his constitutional claim must be rejected.
Appellant next argues that the Commission acted in an arbitrary and capricious manner when it failed to grant him an extension of the fifteen-day time limit. The regulation permits such extensions only when an employee shows that he “was not notified of the time limit and was not otherwise aware of it” or when he demonstrates that he was “prevented by circumstances” beyond his control from appealing within the time limit.”
On this record, we do not believe that the district court’s judgment upholding the Commission in this regard was error. First, as we indicated earlier, Abbruzzese was specifically informed by USPS of the applicable deadline. Although its letter might not have clearly delineated the relationship between Abbruzzese’s contractual and statutory rights, it did unmistakably inform him that if he wanted to appeal, he had to do so in a timely manner. Second, Abbruzzese himself chose to rely on the advice of his union. As a result, because he alone made that decision, we agree that there simply were no circumstances beyond his control that prevented a timely appeal.
Accordingly, the decision of the district court will be affirmed.
. Pub.L. 91-375, 84 Stat. 719 (1979) (codified in scattered titles and sections).
. 5 U.S.C.A. § 2108(3) (1977).
. 39 U.S.C.A. § 1005(a)(2) and § 1206(b) (1979 Supp.). These sections also provide that under no circumstances may access to the Commission be blocked by such agreements.
. 39 U.S.C.A. § 1005(a)(1) and § 1206(b) (1979 Supp.). Such procedures have survived due process challenges. See Winston v. United States Postal Service, 585 F.2d 198, 207-210 (7th Cir. 1978); Austin v. United States Postal Service and American Postal Workers Union, AFL-CIO, No. 76-C 4681 (N.D.Ill.1978); Tufts v. United States Postal Service, 431 F.Supp. 484 (N.D.Ohio 1976).
. The record does not clearly indicate upon what basis the union reached this conclusion. However, we note that Article XVI, § 3 of the 1975-78 National Agreement between the Postal Service and the National Association of Letter Carriers states:
In the case of suspensions of more than thirty (30) days, or of discharge, any employee shall unless otherwise provided herein, be entitled to an advance written notice of the charges against him and shall remain either on the job or on the clock at the option of the employer for a period of thirty (30) days. Thereafter, the employee shall remain on the rolls (nonpay status) until disposition of his case has been had either by settlement with the Union or through exhaustion of the grievance-arbitration procedure. A preference eligible who chooses to appeal his suspension of more than thirty (30) days or his discharge to the Civil Service Commission rather than through the grievance-arbitration procedure shall remain on the rolls (nonpay status) until disposition of his case has been had either by settlement or through exhaustion of his Civil Service appeal, (emphasis added)
. § 752.204 Time limit for initial appeal.
(a) Except as provided in paragraph (b) of this section and § 752.205, an employee may submit an appeal at any time after receipt of the notice of adverse decision but not later than 15 days after the adverse action has been effected.
(b) The Commission or the agency, as appropriate, may extend the time limit on appeal to it when the appellant shows that he was not notified of the time limit and was not otherwise aware of it, or that he was prevented by circumstances beyond his control from appealing within the time limit. (36 F.R. 25097, Dec. 29, 1971).
The regulation was amended and renumbered so that it now appears at 5 C.F.R. § 752.203 (1978). These modifications are not relevant in this appeal.
. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Board of Regents of State College v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Winston v. U. S. Postal Service, supra; Tufts v. United States Postal Service, supra.
. We note in this regard that Abbruzzese could have filed a timely appeal with the Commission and then sought a stay pending the results of the arbitration. Although we do not now decide whether such actions would have been ultimately successful, see e. g., Postal Workers v. U. S. Postal Service, 100 LRRM 2114, 2115 (M.D.N.C.1978) (veteran who exercises his right to administrative appeal waives contractual right to grievance-arbitration procedures), nonetheless had he done so, there would now be evidence on the record indicating that he acted to preserve those rights.
. Cf. Malone v. United States Postal Service, 526 F.2d 1099, 1105 (6th Cir. 1975) (failure to grant preference-eligible postal employee evi-dentiary hearing before Civil Service Commission following his termination did not violate due process, where employee was advised of his right to such process or arbitration and voluntarily chose the latter).
. See note 6, supra.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_respond2_7_2 | 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 "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").
Louis R. HARPER, Jr., et al., Appellees, v. Joseph M. KLOSTER and Stanley C. Leonard, Appellants. Louis R. HARPER, Jr., et al., Appellees, v. Giffen B. NICKOL et al., Appellants. Louis R. HARPER, Jr., et al., Appellants, v. MAYOR AND CITY COUNCIL OF BALTIMORE, a municipal corporation, et al., Appellees.
Nos. 73-1853 to 73-1855.
United States Court of Appeals, Fourth Circuit.,
Argued Aug. 15, 1973.
Decided Oct. 15, 1973.
H. Thomas Howell, Baltimore, Md. (Norman P. Ramsey, Richard T. Sampson, and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellants in No. 73-1853.
Kenneth L. Johnson, Baltimore, Md. (Howard, Brown & Williams, Baltimore, Md., Jack Greenberg, William L. Robinson and Jeffrey A. Mintz, New York City, on brief), for appellants in No. 73-1855 and for appellees in Nos. 73-1853 and 73-1854.
Paul D. Bekman, Baltimore, Md. (William H. Engelman and Kaplan, Heyman, Engelman & Belgrad, Baltimore, Md., on brief), for appellants in No. 73-1854.
George L. Russell, Jr., City Sol., Baltimore (Gerald S. Klein, Asst. City Sol., Baltimore, on brief), for appellees in No. 73-1855.
Before WINTER, FIELD and WIDENER, Circuit Judges.
WINTER, Circuit Judge:
. Four black employees (Harper, et al.) of the Baltimore City Fire Department brought a class action under 42 U.S.C.A. §§ 1981, 1983 and 1988; 28 U.S.C.A. § 2201; and the thirteenth and fourteenth amendments, against Baltimore City and the members of the Board of Fire Commissioners and the Civil Service Commission, in their representative capacity, * to obtain declaratory and injunctive relief against allegedly racially discriminatory practices of the defendants in the appointment and promotion of firemen and various officers of Baltimore City’s fire department. Twenty-six white firemen intervened in the case.
Finding pronounced past racial discrimination, lesser current racial discrimination and significant consequences of past and current racial discrimination, the district court granted substantial relief. Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 (D.Md.1972). It declared invalid and enjoined continued use of the type of written entrance examination which was currently in use for initial appointment and for promotion. It also prescribed how acceptable forms of written examinations could be developed. Because it found that a higher percentage of blacks resided in Baltimore City than the surrounding counties, which had become havens for white flight, it required that city residents be given preference in hiring over non-city residents so long as there were a sufficient number of city residents to fill vacancies. It invalidated existing promotional lists, and it restricted the use of existing eligibility lists for initial hiring. It invalidated seniority for promotions to certain levels for years of past service, accumulated during periods that it found that racial discrimination had been rampant; and it required a reduction of the “time in grade” requirements for promotion to various levels. 359 F.Supp. at 1218-1219.
I Following the district court’s main decision (May 2, 1972), a group of black ’and white non-residents of Baltimore City (Nickol, et al.), who learned on May 12, 1973, that they had passed the firefighters entrance examinations and would be eligible for appointment as firemen but for the district court’s May 2, 1973 decision and the place of their residence, sought to intervene in the proceedings. Leave to intervene was denied by the district court in an oral ' opinion rendered after a hearing.
Plaintiffs, the intervenors, and the would-be intervenors have appealed. No appellant questions the correctness of the district court’s findings of fact, but each raises legal questions.
Plaintiffs contend that the district court should have granted a more drastic remedy to cure past and present racial discrimination and its present discriminating consequences. Specifically, they advocate that the district court fix minimum quotas for black officers of the fire department, the quotas to be achieved by a date certain. With a complete lack of specificity, they contend that the district court “should have completely proscribed all aspects of . [the seniority system] that retard promotions” and that “[s]ince time in grade was not shown to be job related, it should not be used against the victims of discrimination who otherwise demonstrate (sic) the ability to successfully perform the job.” Finally, they argue that there was error in the district court's failing to retain jurisdiction until racial discrimination and the consequences of past racial discrimination have been fully eradicated,
i The intervenors contend that the district court’s invalidation of existing eligibility lists for promotion was error— in sum, that the relief granted by the district court was too drastic. Their contention is grounded upon the dual assertions that the promotional lists were prepared without resort to racially discriminatory criteria and the reduction of “time in grade” requirements for promotion should not have been applied, retroactively (they claim), to invalidate),' current promotional eligibility lists. Í
The would-be intervenors contend that’ they should have been allowed to intervene and to relitigate the case, at least to the extent that it concerned the eligibility of non-residents of Baltimore City for appointment to the fire department.
After the case was argued, Baltimore^ City filed a motion to dismiss the appeals and to vacate the district court’s judgment, on the ground that under City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the city could not be sued under 42 U.S.C.A. § 1983 by a complaint seeking equitable relief, since it was not a “person” within the meaning of that statute.
We conclude that the appeals are lacking in merit. While we conclude that the motion to dismiss is well taken as to Mayor and City Council of Baltimore, a municipal corporation, the relief decreed by the district court may be fully effective as to the other defendants, and we do not think that Kenosha requires dismissal as to them. Accordingly, except for dismissal of the City of Baltimore as a defendant, we affirm the orders appealed from.
I.
We reject plaintiffs’ argument that the district court should have fixed racial quotas for various categories of employees of the fire department and prescribed a minimum time schedule for those quotas to be met. We agree with the district court’s discussion and conclusion in regard to this issue as set forth in 359 F.Supp., pages 1213-1215 of its opinion, and more need not be said. We agree also that this is not a case in which it would be appropriate for the district court to continue jurisdiction. The district court’s remedies to eradicate present discrimination and the current consequences of discrimination are complete in and of themselves. Counsel for defendants have assured the court that full access to all relevant data and statistics, short of the questions on a particular examination before the examination is administered, to determine if defendants are in compliance with the district court’s decree, will be available to plaintiffs and other interested parties at all times within regular business hours. As the district court correctly observed, it lacks the authority to operate the Baltimore City fire department, although it does have “the responsibility to see that the procedures for hiring and promoting firemen are within the bounds proscribed by applicable constitutional and statutory provisions.” 359 F.Supp. at 1213. We think that the district court did not abuse its discretion when, in accommodating these conflicting interests, it concluded not to retain jurisdiction.
II.
We think that the voiding of existing eligibility lists for promotion was proper, notwithstanding intervenors’ argument to the contrary.
The district court found, and its findings are not only amply supported but unchallenged, that the “time in grade” requirements, seniority and efficiency ratings — all components of promotional lists — had the potential of adverse effect on blacks and that this potential amounted to a denial of equal protection of the laws. 359 F.Supp. at 1211-1212. Under such circumstances, we cannot say that, given the breadth of the district court’s discretion to fashion equitable relief, the district court abused its discretion in voiding existing promotional lists forthwith rather than to let them expire by the passage of time so that certain of the intervenors, all of whom are white, could be promoted to higher classifications before there could be corrective alteration of the promotional lists. Intervenors argue strenuously that they are being unfairly denied promotions to which they are entitled, but we rejected this argument in Robinson v. Lorillard Corporation, 444 F.2d 791, 800 (4 Cir. 1971), cert, dis., 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655, where we approved modification of an offensive seniority system, saying “Where some employees now have lower expectations than their coworkers because of the influence of one of these forbidden factors [i e., race, color, religion, sex or national origin], they are entitled to have their expectations raised even if the expectations of others must be lowered in order to achieve the statutorily mandated equality of opportunity.”
III.
We agree with the district court that, for the reasons set forth in its oral opinion, would-be intervenors’ application to intervene in the proceedings was not timely. Rule 24(a), F.R.Civ.P. It follows that denial of leave to intervene was proper.
The would-be intervenors wish to litigate further the propriety and validity of the aspect of the district court’s decree giving preference to residents of Baltimore City in the initial appointment of firefighters. As the district court stated in denying leave to intervene, “they may seek to bring a separate action on the narrow issue involved which would not require a full review and consideration of the testimony in the five week trial.” We agree. There had been a five week, well publicized trial and the interests of the would-be intervenors had apparently been adequately represented. Additionally, throughout most of the period of the litigation, as well as the trial itself, Baltimore City had been preliminarily enjoined from filling certain positions in its complement of firefighters. The effect of permitting intervention would have continued that disability for even longer. Manifestly, the public interest in efficient, effective firefighting services requires that would-be intervenors be heard in a separate proceeding.
IV.
In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the Supreme Court flatly held that a municipal corporation was not a “person” within the meaning of 42 U.S. C.A. § 1983 when equitable relief under that statute was sought. Earlier, it had held in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that a municipal corporation was not a “person” within the meaning of 42 U.S. C.A. § 1983 when damages under that statute were sought. In Monroe, never-, theless, the Court held that § 1983 applied to municipal officers and employees when damages were sought. See also Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). We see no reason to give Keno-sha any wider application.
In the instant case, the district court apparently exercised its jurisdiction under § 1983, although it may well have been exercising federal question jurisdiction under the thirteenth and fourteenth amendments or jurisdiction under 28 U.S.C.A. § 2201. If it exercised jurisdiction on a basis other than § 1983, jurisdiction over the City of Baltimore may be sustainable, as proper in the first instance or under a theory of pendent jurisdiction, because Monroe does not purport to immunize municipal corporations from suit in such instances. See, however, Moor v. County of Alame-da, supra. But we need not explore these possibilities, because there have been named as defendants the individuals who constitute the fire board, the body which makes appointments and promotions, and the Civil Service Commission, the body which recruits, tests, prepares and publishes eligibility lists for appointment and promotion. Monroe holds that jurisdiction attaches as to them and we do not think that Kenosha is to the contrary. The decree of the district court will be just as effective if it applies only to the defendants, excluding Baltimore City, a municipal corporation, as if Baltimore City were also a defendant.
To comply with Kenosha, we must direct the district court to dismiss Baltimore City from the proceedings. In all other respects, the district court’s orders are affirmed.
Modified and affirmed.
Question: This question concerns the second 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.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_initiate | B | 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.
MARKOWITZ BROTHERS, INC., a Corporation, and Continental Casualty Co., Appellants, v. FOX-GREENWALD SHEET METAL CO., Inc., a Corporation, Appellee.
No. 20900.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 26, 1968.
Decided June 25, 1968.
Mr. Charles C. Hartman, Jr., Annapolis, Md., with whom Messrs. Kahl K. Spriggs and Mark P. Friedlander, Washington, D. C., were on the brief, for appellants. Messrs. Mark P. Friedlander, Jr., Blaine P. Friedlander, Washington, D. C., Harry P. Friedlander, Marshall H. Brooks, Arlington, Va., and John F. Myers, Washington, D. C., also entered appearances for appellants.
Mr. Fred C. Sacks, Washington, D. C., for appellee.
Before Bazelon, Chief Judge, and McGowan and Robinson, Circuit Judges.
PER CURIAM:
Fox-Greenwald Sheet Metal Co., Inc., obtained a jury verdict of $103,458.91 in the District Court against Markowitz Brothers, Inc., and Continental Casualty Company for money due on unpaid requisitions resulting from work allegedly performed by Fox-Greenwald under a sub-contract with Markowitz. Marko-witz and Continental, upon this appeal, assert the failure of Fox-Greenwald to establish liability as a substantive matter, as well as error in the conduct of the trial. We leave the jury’s verdict undisturbed.
Under the contractual arrangements formulated for this construction project, Fox-Greenwald submitted requisitions for work completed to Markowitz; Markowitz thereupon . included these amounts in its monthly requisitions to Blake, the prime contractor; and, subsequent to receiving payments of its requisitions from Blake, it paid Fox-Green-wald. Pursuant to this plan, the work and payments proceeded relatively well until December of 1963. In this month, Markowitz, while submitting the full amount of Fox-Greenwald’s requisition in its requisition to Blake, remitted to Fox-Greenwald only part of the amount claimed by it, and failed to pay anything on Fox-Greenwald’s January requisition.
Fox-Greenwald’s effort to collect what it considered due and owing proved unavailing, and it instituted this suit. During an eight-day trial both parties presented an abundance of testimony and exhibits relating to the amount of work satisfactorily performed. After comprehensive closing arguments, the jury was instructed that it had to decide: (1) whether any amount was due Fox-Green-wald for work performed prior to the termination of the contract on February 15, 1964, and (2) if Markowitz had received from Blake money for the benefit of Fox-Greenwald which it had not paid over to the latter.
As we view the case, the primary issue is appellant’s contention that the jury verdict is insupportable because it exceeded the amount that Blake paid Markowitz. Although the presentation of evidence in this- case is marked by considerable confusion, as is also its treatment in appellant brief and argument, our own examination of the record leaves us unpersuaded that it was inadequate.
From a procedural standpoint, appellants were afforded their day in court. Every possible circumstance which arose during the Markowitz-Fox-Greenwald relationship was permitted to be explored, and appellants had a full and fair opportunity to convince the jury that no sum of money was due Fox-Greenwald, and that Blake had not paid Markowitz in any event. More specifically, during closing arguments appellants’ counsel referred to a blackboard on which appeared all the relevant figures relied upon to show that no money was owing. Obviously the jury, in deliberating seven hours, thoroughly considered the positions of the parties. The thoroughness of the jury’s consideration of the case is supported by the fact that the jury, during deliberation, requested and obtained: (1) the figures placed on the blackboard by appellants, (2) Markowitz’s statement to the Bonding Company, giving the percentage figures of completion of the project as of December 31, 1963, (3) witnesses’ statements relating to the overall completion of the project and (4) Blake’s checks to Markowitz.
We find no error necessitating the imposition upon an already over-extended District Court of the reenactment of this lengthy proceeding in which the full opportunity afforded to illuminate the issues succeeded, as often as not, only in obscuring them.
Affirmed.
. Continental is a party because Marko-witz had secured a payment bond from it.
. Markowitz had entered into a sub-contract with Blake Construction Company, which had contracted with the United States Government to construct buildings of the National Bureau of Standards at Gaithersburg, Maryland, to perform the plumbing, heating, and air conditioning. Markowitz, in turn, sub-subcontracted the “sheetmetal” portion of its work to Fox-Greenwald.
. The contract involved was dated July 20, 1962, but was not executed until October 1962 when Fox-Greenwald commenced working on the project.
. Although Markowitz included the full amount of Fox-Greenwald’s requisition in its requisition to Blake, it attached a note stating it had not approved Fox-Green-wald’s requisition. When Blake did not pay the full amount of Markowitz’s requisition, Markowitz apparently apportioned all of this reduction to Fox-Green-wald. During the trial a Blake representative testified that none of the cut related to Fox-Greenwald’s work.
. Although Blake did not remit any cash to Markowitz for its January requisition, there was some testimony to the effect that Markowitz had earlier over-requisitioned and Blake credited Markowitz’s account accordingly.
. Appellants also claim that the District Court erred when it (1) decided as a matter of law that Fox-Greenwald did not have to prove it met certain contractual conditions precedent in order to be entitled to be paid for work performed, and (2) limited the instruction of the jury to the issue of money due and owing for work performed. We reject both of these claims. With regard to the first, we do not think this has any bearing on the issue of money had and received by one party for work performed by another which was the non-contractual theory upon which the court, with the explicit assent of all parties, received evidence and submitted the case to the jury. On appeal, appellants argue that such assent was not given by them, but the record is clearly to the contrary. As to the instruction argument, appellants’ trial counsel understood what issue was to be submitted to the jury and he tendered no proposed instructions. One other issue raised by appellants is that the judge erred when he refused to incorporate any specfic figures in his instructions. We do not think that this was error because counsel had ample opportunity to present and explain the figures to the jurv
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_appel1_7_2 | B | 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 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").
James Edward CHITWOOD, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 7035.
United States Court of Appeals Fourth Circuit.
Argued October 4, 1955.
Decided October 4, 1955..
C. Carter Lee, Rocky Mount, Va., for appellant.
Beverly A. Davis, III, Asst. U. S. Atty., Rocky Mount, Va. (John Stickler, U. S. Atty., and Benjamin F. Sutherland, Asst. U. S. Atty., Roanoke, Va., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal in a criminal case in which the accused was convicted of violation of the Internal Revenue laws in the removal of distilled spirits on which the tax had not been paid. The case was tried before a jury and the evidence showed that officers of the law chased an automobile which they suspected of being engaged in violating the law and .that, when they forced it to the curb, two men who had been riding in the car jumped from it and ran away. A quantity of untaxpaid liquor was found in the car and two fruit jars filled therewith fell from the car and were broken when the two occupants ran away. Appellant denied that he was in the car, but there was ample evidence to identify him as one of the men who -ran therefrom. He contends that there was not sufficient evidence to sustain the jury’s verdict of guilty because he was not shown to be the owner of the car or to have had any interest in the liquor. The contention is frivolous. The fact that he was riding in a car filled with liquor and that he ran from the officers was ample evidence that he was aiding and abetting in the crime which was being committed whether he was the owner of the car or the liquor or not. Harding v. United States, 4 Cir., 182 F.2d 524; Windsor v. United States, 6 Cir., 286 F. 51; Rowan v. United States, 7 Cir., 277 F. 777; 20 Am.Jur. 1221. The complaint as to the charge of the court is absolutely without merit. The judge made it perfectly clear that mere presence of the appellant in the automobile would not make him guilty, if he had no proprietary interest and no part in the delivery, removing or concealing of the liquor. As the appeal presents no substantial question, the mandate will issue forthwith and will not be stayed pending application for rehearing or certiorari.
Affirmed.
Question: 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)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_appel1_1_2 | 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 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".
V.S.H. REALTY, INC., Plaintiff, Appellant, v. TEXACO, INC., Defendant, Appellee.
No. 84-1531.
United States Court of Appeals, First Circuit.
Argued Nov. 7, 1984.
Decided March 15, 1985.
Rehearing En Banc Denied April 29, 1985.
Allan van Gestel, Boston, Mass., with whom Allan J. Sullivan and Goodwin, Procter & Hoar, Boston, Mass., were on brief for plaintiff, appellant.
Robert M. Gault, Boston, Mass., with whom Bruce F. Metge, Washington, D.C., and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, Mass., were on brief for defendant, appellee.
Before COFFIN and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
COFFIN, Circuit Judge.
Appellant V.S.H. Realty, Inc. (V.S.H.) claims that appellee Texaco, Inc. (Texaco) must return a $280,000 down payment V.S.H. paid on a piece of real estate in Chelsea, Massachusetts. V.S.H. claims that Texaco breached the sales agreement, fraudulently induced it into agreeing to the purchase, and violated a Massachusetts statute prohibiting unfair and deceptive acts in business dealings. The district court dismissed the case under Fed.R. Civ.P. 12(b)(6) for failure to state a claim, and denied V.S.H.’s subsequent motion to vacate judgment and to permit an amendment of the complaint. We think the court was correct in dismissing the breach of contract claim but erring in dismissing the common law and statutory deception counts.
I. Factual Background
On August 11, 1983, V.S.H. offered to purchase from Texaco a used bulk storage petroleum facility for $2.8 million. Texaco accepted the offer on September 7, and V.S.H. made a deposit of $280,000 to be applied against the purchase price. The offer to purchase required Texaco to convey the property “free and clear of all liens, encumbrances, tenancies and restrictions”, except for those set forth in the offer. Attached to the offer to purchase was an acknowledgement signed by Texaco stating that, to the best of the company’s knowledge and belief, it had not received “any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.” The offer also included a disclosure by Texaco that fuel oils had “migrated under [Texaco’s] garage building across Marginal Street from the terminal [and that] the fuel oil underground as a result of heavy rains or high tides, seeps into the boiler room of the garage building.” V.S.H., for its part, expressly stated in the offer that it had inspected the property, and accepted it “as is” without any representation on the part of Texaco as to its condition.
Problems arose when V.S.H. representatives visited the property in mid-October 1983, approximately a month after Texaco accepted the offer to purchase, and observed oil seeping from the ground at the western end of the property. During a subsequent visit, V.S.H. representatives discovered another oil seepage at the eastern end of the property. V.S.H. then notified Texaco that it would not go through with the purchase unless Texaco corrected the oil problem, provided V.S.H. with full indemnification, or reduced the purchase price. When Texaco refused, V.S.H. demanded return of its down payment. Texaco again refused, and V.S.H. filed this lawsuit on January 10, 1984.
In its three-count complaint, V.S.H. alleges first that Texaco violated Mass.Gen. Laws Ann. ch. 93A, § 2, which prohibits unfair and deceptive acts and practices, basing that assertion largely on Texaco’s failure to disclose the seeping oil, and its failure to disclose an investigation of the property by the U.S. Coast Guard. V.S. H.’s second count claims relief for breach of contract, based on Texaco’s alleged inability to convey the property at the specified time free of all liens, encumbrances and restrictions. V.S.H.’s contract theory is that the penalties associated with the oil seepage problem constitute an encumbrance on the property. Finally, V.S.H. charges Texaco with common law misrepresentation and deceit for failing to disclose the oil seepage problems and Coast Guard investigation “in the face of repeated inquiries by V.S.H. about the subject.”
At the conclusion of a hearing on Texaco’s motion to dismiss all three counts, the district court announced without explanation that the contract claims should be dismissed. It also dismissed the common law fraud count at that time, stating that V.S.H. had failed to allege the required affirmative misrepresentation or implicit misrepresentation by partial and ambiguous statements. It deferred decision on the chapter 93A count, and in a latter written decision dismissed that count on two grounds: an Attorney General’s regulation upon which V.S.H. relied was not. intended to apply in a transaction between two sophisticated business entities, when one party agrees to take the property “as is”; and Texaco had no duty to disclose the oil seep-ages to V.S.H., and so its failure to do so could not have violated chapter 93A.
Our approach to reviewing a dismissal of a complaint at such a preliminary stage of proceedings is necessarily informed by the teaching that we must consider “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). With that view of our task in mind, we disagree with the action taken by the district court with respect to the counts based on chapter 93A and common law misrepresentation. V.S. H. ’s original complaint may well have been vague in some allegations, but we believe that it presented “enough information to ‘outline the elements of the pleaders’ claim’ ”, Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977) (quoting Wright & Miller, Federal Practice and Procedure § 1357). V.S.H. is therefore “entitled to be heard more fully than is possible on a motion to dismiss a complaint.” Scheuer, id. 416 U.S. at 250, 94 S.Ct. at 1693. We affirm the dismissal of the count based on breach of contract. We shall first discuss the counts based on common law misrepresentation and chapter 93A, ending with the count based on breach of contract.
II. Sufficiency of the Complaint
A. Common Law Misrepresentation
V.S.H. bases its count for common law misrepresentation on Texaco’s partial disclosure of oil seepages, the deliberate concealment of other leaks and the failure to acknowledge the U.S. Coast Guard investigation of the spills. The failure to disclose is actionable, V.S.H. argues, because it repeatedly asked Texaco about oil leaks on the premises, yet Texaco knowingly made only partial disclosure of them. V.S.H. alleges that Texaco’s fragmentary disclosures induced it to enter into the contract, and caused it damage in the form of the $280,000 down payment which it otherwise would not have made.
The district court dismissed the misrepresentation count because
“[tjhere was no fiduciary duty here. The parties dealt at arm’s length with each other, and there was no peculiar duty to speak. There were no material misrepresentations on which the buyers relied.”
What we face here, however, are allegations of partial or incomplete statements that may by their incompleteness be actionable. Restatement of Torts (Second), §§ 529, 551(2)(b). There is much case law in Massachusetts supporting the proposition that a party who discloses partial information that may be misleading has a duty to reveal all the material facts he knows to avoid deceiving the other party.
“Although there may be ‘no duty imposed upon one party to a transaction to speak for the information of the other ... if he does speak with reference to a given point of information, voluntarily or at the other’s request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading ... as active misrepresentation, and half-truths may be as actionable as whole lies____’ See Harper & James, Torts, § 7.14. See also Restatement: Torts, § 529; Williston, Contracts (2d ed.) §§ 1497-1499.” Kannavos v. Annino, 356 Mass. 42, 48, 247 N.E.2d 708 (1969).
See also Maxwell v. Ratcliffe, 356 Mass. 560, 562-63, 254 N.E.2d 250 (1969) (“Because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect to which they had been put on notice.”); Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 322, 446 N.E.2d 681 (1983) (“[Tjhere is no suggestion that the defendants made a partial disclosure or stated a half truth which may be tantamount, under certain conditions, to a falsehood if there is no further expatiation.”); Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674 (1983); Catalina Yachts v. Old Colony Bank & Trust Co., 497 F.Supp. 1227 (D.Mass.1980).
This duty to avoid misrepresentations is so strong that the deceived party is not charged with failing to discover the truth. Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 446, 333 N.E.2d 421 (1975) (“[Ijf the seller’s representations are such as to induce the buyer not to undertake an independent examination of the pertinent facts, lulling him into placing confidence in the seller’s assurances, his failure to ascertain the truth through investigation does not preclude recovery.”).
We believe the allegations in V.S. H.’s complaint regarding partial and ambiguous statements satisfy the requirements for stating a claim of misrepresentation. V.S.H. has alleged that it made “repeated inquiries” about oil leaks on the property, to which Texaco failed to fully respond. In addition, Texaco stated in an acknowledgement attached to the contract that it had “not received any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.” Even if it is technically correct that Texaco had received no governmental communication specifically related to modifications or improvements to the facility, its failure to disclose the Coast Guard investigation of the property is arguably an actionable misrepresentation. The district court also recognized the ambiguity in Texaco’s assertion, noting that “the question whether that [the Coast Guard investigation] is a notice regarding modifications or improvements of the facility is a matter of argument.” Finally, and significantly, we note that Texaco affirmatively stated (with some implication of exclusivity) the existence of one leak. The combination of Texaco’s affirmative disclosure of one leak, its failure to disclose the others, and its failure to acknowledge alleged Coast Guard investigation of the seepages, at a minimum, makes this case a stronger one of misrepresentation than Nei v. Burley, 388 Mass. 307, 310, 446 N.E.2d 674, where the Supreme Judicial Court held that the defendants “did not convey half truths nor did they make partial disclosure of the kind which so often requires a full acknowledgement to avoid deception.” It is our conclusion, therefore, that the district court erred in dismissing the claim for common law misrepresentation.
B. Breach of Mass.Gen.Laws Ann. ch. 93A
Mass.Gen.Laws Ann. ch. 93A generally prohibits unfair or deceptive acts or practices in business. When it was first enacted in 1967, its primary goal was protection of consumers, Manning v. Zuckerman, 388 Mass. 8, 12, 444 N.E.2d 1262 (1983), but the addition of section 11 in 1972 extended chapter 93A’s coverage to business persons involved in transactions with other business persons. Id. Chapter 93A has been interpreted to be “ ‘a statute of broad impact which creates new substantive rights and provides- new procedural devices for the enforcement of those rights’ ”, id., (quoting Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693, 322 N.E.2d 768 (1975)). “This act is one of several legislative attempts in recent years to regulate business activities with the view to providing proper disclosure of information ... ”, Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748 (1974).
Chapter 93A § 2 provides no definition of an unfair or deceptive act or practice, and instead directs our attention to interpretations of unfair acts and practices under the Federal Trade Commission Act as construed by the Commission and the federal courts. Commonwealth v. DeCotis, 366 Mass, at 241, 316 N.E.2d 748; PMP Associates, Inc. v. Globe Newspaper Co., 366 Mass. 593, 595, 321 N.E.2d 915 (1975). The section also empowers the Attorney General to make rules and regulations interpreting § 2(a). See § 2(c). V.S.H. relies heavily on one such regulation to support its allegation that Texaco violated chapter 93A.
The Attorney General’s regulation in Mass.Admin.Code tit. 20, § 3.16(2) states that an act or practice violates chapter 93A if:
“Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”
V.S.H.’s complaint appears to state a claim under this regulation and, in fact, mirrors its language. V.S.H. alleged in paragraph 19 of its complaint that Texaco’s failure to disclose the oil leaks that V.S.H. representatives discovered in October 1983 “are facts the disclosure of which may have influenced V.S.H. not to enter into the transaction and agree to pay the sum of $2,800,000 for the premises or to pay a deposit in connection therewith of $280,-000.”
The district court found an inadequacy in the complaint by concluding that the disclosure language of regulation § 3.16 is incomplete. The court decided that “unless a defendant has a duty to speak, his nondisclosure of a defect does not constitute a violation of chapter 93A even if the information may have influenced the buyer not to enter into the contract.” The court then went on to hold that Texaco did not have a duty to disclose the oil leaks to V.S.H. We disagree for two reasons. First, even if we were to accept the court’s premise that nondisclosure is a violation of chapter 93A only when there is a duty to disclose, we would find that V.S.H. has met its burden of establishing a duty by alleging that Texaco made partial or incomplete statements regarding the oil leaks on the property. See Restatement of Torts (Second) §§ 551, 529. See supra p. 415.
We are not convinced, however, that V.S.H. needs to allege more than a failure to disclose a material fact to state a cause of action under chapter 93A. In Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768 (1975), the Massachusetts Supreme Judicial Court examined chapter 93A at length, and emphasized the distinction between that statutory cause of action and the common law action for fraud and deceit, which would require a duty to disclose. It pointed out that “the definition of an actionable ‘unfair or deceptive act or practice’ goes far beyond the scope of the common law action for fraud and deceit____ [A] § 9 [or § 11] claim for relief ... is not subject to the traditional limitations of preexisting causes of action such as tort for fraud and deceit.” Id., at 703-04, 322 N.E.2d 768. Massachusetts case law suggests that one difference between a fraud claim and the more liberal 93A is allowance of a cause of action even in the absence of a duty to disclose. See Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 323-24, 446 N.E.2d 681 (1983), where the court appeared ready to find chapter 93A liability even though it found no duty to speak. See also Nei v. Burley, 388 Mass. 307, 316, 446 N.E.2d 674 (1983).
The district court, however, had another reason for dismissing the claim. It concluded that chapter 93A liability was precluded because V.S.H. is a sophisticated buyer who had the opportunity to inspect the property and who agreed to purchase the property “as is”. The court noted that “this type of contractual arrangement is expressly permitted under the Uniform Commercial Code, M.G.L. c. 106, § 2-316, in non-consumer sales of goods”, and it thus “would be anomalous to hold that ‘as is’ contracts are permissible in sales of goods cases but not in commercial sales of land cases.” It concluded:
“Absent allegations of the non-detectability of defects on inspection or their fraudulent concealment by a defendant, a plaintiff who has inspected the premises to be purchased and has agreed to purchase the land ‘as is’ cannot rely on § 3.16(2) to establish a defendant’s viola: tion of chapter 93A.”
We believe the district court’s view of the law regarding “as is” clauses is incorrect. Although the Uniform Commercial Code does expressly permit disclaimers in the sale of goods between merchants, § 2-316 refers specifically to disclaimers of implied warranties, suggesting to us that it was intended only to permit a seller to limit or modify the contractual bases of liability which the Code would otherwise impose on the transaction. The section does not appear to preclude claims based on fraud or other deceptive conduct. Section 1-102(3) of Mass.Gen.Laws ch. 106 lends support to this interpretation of § 2-316. It states:
“The effect of provisions of this chapter may be varied by agreement, except as otherwise provided in this chapter and except that the obligations of good faith, diligence, reasonableness and care prescribed by this chapter may not be disclaimed by agreement ...” (emphasis added).
We find further support for our view implicit in Marcil v. John Deere Industrial Equipment Co., 9 Mass.App. 625, 403 N.E.2d 430, app. denied, 380 Mass. 940 (1980). The court in that case upheld a disclaimer of all express and implied warranties other than the warranty specified on the purchase order, finding that there was no indication that the disclaimer was unconscionable. The court went on to note that the vaguely worded allegations of the plaintiff’s complaint may have stated claims for deceit or violation of chapter 93A, but the plaintiff failed to characterize them as such to the trial judge, and so he was not allowed to do so for the first time on appeal. Our reading of Marcil is that even if a disclaimer on its face is not unconscionable, it is subject to challenge if a plaintiff, as in this case, properly raises allegations of deceit and violation of chapter 93A.
Our conclusion here does not mean that an “as is” clause would never be given effect in real estate transactions where the buyer alleged the seller’s failure to disclose a material defect in the property. The Supreme Judicial Court has’ held that § 3.16(2) imposes liability only when the defendant had knowledge, or should have known of the defect, and where a direct relationship existed between the parties. See Lawton v. Dracousis, 14 Mass.App. 164, 171, 437 N.E.2d 543, 547, app. denied, 387 Mass. 1103, 440 N.E.2d 1177 (1982) (failure to disclose building code violations not actionable where seller did not know or have reason to know of violations); Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 324, 446 N.E.2d 681 (1983). It is possible that § 3.16(2) will be found inapplicable in other situations involving “as is” clauses.
Even more persuasive than this inferential reasoning based on the Uniform Commercial Code is the fact that Massachusetts case law unequivocally rejects assertion of an “as is” clause as an automatic defense against allegations of fraud:
“The same public policy that in general sanctions the avoidance of a promise obtained by deceit strikes down all attempts to circumvent the policy by means of contractual devices. In the realm of fact it is entirely possible for a party knowingly to agree that no representations have been made to him, while at the same time believing and relying upon representations which in fact have been made and in fact are false but for which he would not have made the agreement.” Bates v. Southgate, 308 Mass. 170, 182, 31 N.E.2d 551 (1941).
See also Schell v. Ford Motor Company, 270 F.2d 384, 386 (1st Cir.1959) (“under the law of Massachusetts ... in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence____) (emphasis added).
Texaco acknowledges that a party may not contract out of liability for fraud. It argues instead that the specific language of the disclaimer in this case precludes recovery by V.S.H., (i.e., that V.S.H. did not rely on any representations); Texaco relies heavily, however, on a case from another jurisdiction to support this proposition, Landale Enterprises, Inc. v. Berry, 676 F.2d 506 (11th Cir.1982). Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551 (1941), is the controlling precedent on this issue in Massachusetts, not Landale. Texaco also implies that the disclaimer must be given full effect because V.S.H. is a “sophisticated” purchaser, experienced in real estate transactions.
Although we agree that V.S.H.’s experience in the real estate business, along with the presence of an “as is” clause, is relevant to the ultimate disposition of the chapter 93A claim, we do not find that either factor makes V.S.H.’s claim insufficient as a matter of law. Sophistication of the parties is not mentioned in chapter 93A and the amendment of chapter 93A to cover business entities did not limit the statute’s protection to small, unsophisticated businesses. It may be that the Massachusetts Supreme Judicial Court ultimately should decide the question of whether an “as is” clause ever should be ignored in a transaction between two sophisticated businesses and, thus, whether the existence of one should preclude a chapter 93A cause of action. We do not believe, however, that it would, or could, do so without development of a factual record. For that reason, and the absence of any contrary precedent in Massachusetts law, we conclude that the district court erred in dismissing the chapter 93A claim.
C. Breach of Contract
V.S.H. argues that Texaco breached the contract between them when it refused to return V.S.H.’s $280,000 down payment even though Texaco could not convey the Chelsea property free of all encumbrances, restrictions and liens. V.S.H.’s argument is that the oil seepages and barrier facility constructed to control the seepages subject the property and its owners to various penalties, which amount to encumbrances on the title. V.S.H. cites, among other statutes, the Massachusetts Oil and Hazardous Material Release Prevention Act, Mass. Gen.Laws Ann. ch. 21E. Section 5 of that statute imposes liability on the owner of a site at which there is or has been a release or threat of release of oil, and section 13 provides that the cost of clean-up may constitute a lien on the property of all persons liable under the statute. V.S.H. also points to Mass.Gen.Laws Ann. ch. 131, § 40, which prohibits the filling, dredging or altering of any bank bordering on any creek of any land subject to tidal action, coastal storm flowage or flooding, without permission from the local conservation commission. V.S.H. alleges in its complaint that the bank bordering on Chelsea Creek, and the land surrounding it, are subject to those environmental events, and that Texaco’s construction of a dam or barrier facility on its property following the Coast Guard investigation is a violation of the statute. The statute provides that anyone who acquires the property is responsible for restoring it to its prior condition, and that fines, imprisonment or injunctive relief may be obtained by the Attorney General, local officials or any group of ten Massachusetts residents.
Texaco contends that V.S.H.’s citation to these Massachusetts statutes, and equivalent federal statutes, is insufficient because V.S.H. has not alleged enough facts to establish that conditions presently exist such that the property would be deemed encumbered by a statutory violation.
As a general proposition, the “mere possibility” that someone might subject the purchaser to litigation is not enough to require a return of a deposit, Orenberg v. Johnston, 269 Mass. 312, 316, 168 N.E. 794 (1929). Sufficient facts must be alleged “showing that the property was or might be subject to adverse claims such as might reasonably be expected to expose the purchaser to controversy in order to maintain his title”, Hill v. Levine, 252 Mass. 513, 517, 147 N.E. 837 (1925) (emphasis added).
On the other hand, V.S.H. cites several cases more hospitable to recognizing the existence of an encumbrance. In Silverblatt v. Livadas, 340 Mass. 474, 164 N.E.2d 875 (1960), it was held that a letter from a building inspector to a seller of property that a fire escape would have to be replaced by either the owner or the city (in which case a lien would be imposed) would not be an encumbrance made by the grant- or — even if, arguably, this kind of inchoate lien could constitute an encumbrance. In Sawl v. Kwiatkowski, 349 Mass. 712, 212 N.E.2d 228 (1965), the court held that a prospective buyer was not entitled to specific performance of a real estate contract because of a possible inheritance tax lien on the property. The master had found that there was a “ ‘reasonable probability’ ” that an inheritance tax was due and that “ ‘the probability of ... a lien ... [was] sufficiently great to render the tile non-marketable in the absence of ... evidence that [the locus was] free of such lien....’” Id. at 713, 212 N.E.2d 228. In Mahoney v. Nollman, 309 Mass. 522, 35 N.E.2d 265 (1941), the court ruled that a buyer was entitled to a return of its deposit because of a possible lien on the land in favor of a legatee who had not been satisfied by the testatrix' estate. Even though no specific claim had been made and the Attorney General was the only one who could enforce the lien, the court held that the title to the property was sufficiently doubtful:
“The defendant is entitled to assume that [the Attorney General] will perform his duties in that respect in the matter of the estate of the testatrix. So far as appears, resort may be necessary to the land in question for satisfaction of these legacies for a public charity.” Id. at 527, 35 N.E.2d 265.
We resolve this issue by affirming the district court. As far as any “encumbrance” attributable to chapter 21E, proscribing the release of oil and enabling the Commonwealth to secure its recovery of any clean-up costs by means of a lien, we note several missing links in the chain of imminency that characterized both Sawl and Mahoney. In the first place, nearly three months had elapsed between V.S.H.’s discovery of additional seepage and the filing of its complaint. Thus, the absence of any allegations concerning complaints or clean-up orders renders quite speculative their likely existence. In the second place, the appropriateness of any clean-up order was subject both to an adjudicatory administrative hearing and judicial review. Chapter 21E § 10.
As for any encumbrance attributable to chapter 130 § 40, we note the nearly three month period mentioned above; the uncertainty of an encumbrance arising from the precondition of suit in equity being brought and won; and, finally, the fact that neither in the original nor amended complaint was there an allegation that Texaco, in responding to the Coast Guard investigation and constructing a dam or barrier on its bank bordering Chelsea Creek, did so without giving notice to and receiving permission from the appropriate authorities. In short, no violation of § 40 was alleged.
We therefore cannot fault the district court for dismissing this count.
For the foregoing reasons, we affirm the dismissal of the contract count, and reverse the judgment of the district court on the misrepresentation and chapter 93A counts, remanding for further proceedings consistent with this opinion.
. When we consider the amended complaint, see appendix, rejected by the court, our conclusion takes on added strength. The new averments, especially paragraphs 10 and 13, seem to state a classical misrepresentation claim. Indeed, we cannot escape the impression that had the court directly focused on them, it might well have allowed the amendments. For it had earlier asked counsel for V.S.H. if he intended to amend, had learned that counsel would ask leave to amend if dismissal were contemplated, and had, on dismissing two counts, specifically noted that V.S.H. could file an amendment within a reasonable period of time. Counsel said he would await a formal ruling on all counts. Subsequently, as if the matter had fallen between stools, the court dismissed the entire complaint and, eight days later, V.S.H. served its motion on Texaco. Under these circumstances the short delay and absence of any likelihood of prejudice would have clearly indicated granting the motion for leave to amend under Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) and Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983) had the new averments received a focused attention.
. This paragraph followed V.S.H.’s acknowledgement that various regulations may require it to spend substantial sums of money for improvements to the facility, and that it was willing to assume responsibility for compliance with all applicable regulations. In its amended complaint, V.S.H. alleged that it insisted on the disclaimer from Texaco because it knew that current landowners can be held liable for oil leaks, spills and related problems even if the actual environmental damage was caused by a prior owner. V.S.H.'s allegation implies that the Texaco disclaimer was its form of protection when it agreed to accept responsibility, since the disclaimer suggested that Texaco knew of no outstanding problems with the property. It may be that there was no significant problems. V.S.H. should be allowed to proceed on the basis of its allegations, however, to discover the extent, if any, of Texaco's culpability.
. Chapter 93A reads, in relevant part, as follows: "§ 2. Unfair practices; legislative intent; rules and regulations
(a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
"§ 11. Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment by another person who engages in any trade or commerce of an unfair method of competition or an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of section two may ... bring an action____”
. Texaco argues that § 3.16 actually condemns only failures to disclose that are unfair or deceptive as described by Massachusetts standards, Purity Supreme, Inc. v. Attorney General, 380 Mass. 762, 775, 407 N.E.2d 297 (1980), and that this is not such a case. While we agree with that general proposition, it is also true that "the existence of unfair acts and practices must be determined from the circumstances of each case”, Commonwealth v. DeCotis, 366 Mass. at 242, 316 N.E.2d 748; see also Mechanics National Bank of Worcester v. Killeen, 377 Mass. 100, 384 N.E.2d 1231 (1979); Schubach v. Household Finance Corp., 375 Mass. 133, 376 N.E.2d 140 (1978); Noyes v. Quincy Mutual Fire Insurance Co., 7 Mass.App. 723, 389 N.E.2d 1046 (1979).
. The court declined to find the statutory liability only because the defendants played a minor role in the purchase of the property.
. It is worth noting that in Landale the disclaimer was drafted by the party seeking to invalidate the sales contract. Id. 676 F.2d at 508. Texaco drafted the clause in the instant contract.
. We note that the district court may wish to certify this question at an appropriate point in the proceedings.
. We note, but do not rely on, another section of the Attorney General regulations, § 3.05(1) (Mass.Admin.Code tit. 20), which V.S.H. pointed out in its amended complaint:
"No claim or representation shall be made by any means concerning a product which directly, or by implication, or by failure to adequately disclose additional relevant information, has the capacity or tendency or effect of deceiving buyers or prospective buyers in any material respect."
Although V.S.H. did not specifically cite to § 3.05 in its original complaint, the amended complaint links that section (as well as § 3.16) with Texaco’s alleged failure to disclose the oil leaks and Coast Guard investigation, and the original complaint contains all of the factual allegations necessary for that connection.
. The Federal Clean Water Act, 33 U.S.C. § 1321 and the Federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.
Question: 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?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_counsel2 | D | 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
Eerik HEINE, Appellant, v. Juri RAUS, Appellee.
No. 11195.
United States Court of Appeals Fourth Circuit.
July 22, 1968.
Robert J. Stanford, and Ernest C. Raskauskas, Washington, D. C., for appellant.
Paul R. Connolly, Washington, D. C. (Williams & Connolly, E. Barrett Prettyman, Jr., and Hogan & Hartson, Washington, D. C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BOREMAN and CRAVEN, Circuit Judges.
HAYNSWORTH, Chief Judge:
In this slander action, the plaintiff appeals from an order of summary judgment entered against him, on the ground of governmental privilege, after a partial disclosure limited by invocation by the Central Intelligence Agency of the governmental privilege against disclosure of state secrets. The controversy, thus partially surfaced, arose out of the Central Intelligence Agency’s intelligence and counterintelligence activities and its attempt to expose the plaintiff as a Soviet KGB agent, a defamation which the plaintiff alleges to be false.
The plaintiff, Eerik Heine, is an Estonian emigré residing in Canada. With an apparent history as a “freedom fighter” in Estonia, he was an occasional lecturer in the United States and an exhibitor of an anti-communist film. As such, he was known to the leaders of Estonian emigrés in the United States and apparently entitled to their confidence.
The defendant, Juri Raus, is also an Estonian emigré. He resides in the United States and is the National Commander of the Legion of Estonian Liberation. He readily admits that he told the Board of Directors of the Legion that he was reliably informed by an official agency of the United States that Heine was a Soviet agent or collaborator and that the Legion should not cooperate with him. This, the plaintiff charges, made his film and his lecture no longer salable and brought him into disgrace in the Estonian communities in the United States and Canada.
In his initial answer, Raus claimed only a qualified privilege. He claimed that he had spoken, without malice, only as an officer of the Legion and only on privileged occasions to privileged persons. There was no indication of any involvement of the CIA. Later, however, an amended answer was tendered, supported by a series of affidavits executed by the Director or Deputy Director of the CIA, in which the absolute executive privilege was claimed. In those documents it was alleged that Raus was an undercover or secret agent of the CIA, ad executed special assignments for it in the past and acted under the instructions of the CIA when he “warned” his fellow Legionnaires that Heine was a Soviet agent. Earlier disclosure of these circumstances was said to have been prevented by a CIA secrecy agreement, to which Raus had subscribed and which purported to carry with it punishment for violations under 18 U.S.C.A. §§ 793 and 794, including life imprisonment or death. When the first answer was filed, counsel for the CIA had refused permission to Raus to disclose his CIA connection.
Thereafter, the plaintiff sought to take Raus’ deposition in order to obtain additional information about his employment by the CIA. The Director of the CIA, through his General Counsel, appeared for the taking of the deposition, and, on a question by question basis, in the presence of the Judge, invoked the government’s privilege against disclosure of state secrets. Raus was allowed to state that he had been paid, directly or indirectly, for services he had rendered the CIA, but the privilege was sustained to prevent probing of the details of his employment.
Otherwise, it appears from affidavits of the Director of the CIA that Raus and other Estonian emigrés in the United States had been sources of foreign intelligence and that the purpose of the instruction to Raus to discredit Heine was to protect the integrity of the CIA’s sources of foreign intelligence within Estonian emigré groups or developed through them.
In that state of the litigation, the District Court granted a motion for summary judgment. It was of the opinion that the absolute governmental privilege was available to a government employee such as Raus, who faithfully executed his instructions, as to one of higher authority exercising discretionary functions within the outer perimeter of his authority. We agree, provided the instructions were isued by one having authority to issue them.
I
At the outset it is well to put to one side the question of the CIA’s right to invoke the government’s privilege of silence with respect to “state secrets.”
“The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. The latter requirement is the only one which presents real difficulty.” United States v. Reynolds, 345 U.S. 1, 7—8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953).
The District Court was quite correct in its allowance of the governmental claim of the privilege of secrecy. It was properly invoked generally by the Director of the CIA. The Court made sufficient inquiry — some of it in camera — to assure that it had not been done lightly, without pressing so far as to reveal the very .state secrets the privilege is intended to protect. When the deposition of Raus was taken, he ruled upon each question calling for information arguably within the privilege, requiring Raus to answer those which the Court thought would not impair the privilege while foreclosing answers to those questions which apparently would. In his conduct of the proceedings, we think he balanced, as fairly as possible, the conflicting inter-ests and was faithful to the “formula of compromise” taught by Reynolds.
We affirm the right of the CIA in this case to invoke the governmental privilege against disclosure of state secrets and its allowance, to the extent it was allowed, ^y District Court.
II
On the question of executive privilege in defamation suits, we also agree generally with the District Court, its analysis of Barr v. Matteo and its reasoning, though we come to the conclusion that one more detail should have been supplied before entry of summary judgment,
in Barr v. Matteo, it was held that the Acting Director of the Office of Rent stabilization was entitled to the protection of the absolute executive privilege, Responding to congressional criticism of the agency, Barr issued a press release announcing his intention to suspend two subordinate officials and placing upon their shoulders responsibility for the payouts under criticism. Three justices joined Mr. Justice Harlan in the leading opinion in which the governmental interest in having officials, exercising discretionary authority, assured freedom to act in the interest of the agency without fear of having to defend actions for defamation was balanced against the interest of the individual plaintiffs in seeking judicial rehabilitation of their reputations. With reliance upon the analysis and justification of Judge Learned Hand in Gregorie v. Biddle, 2 Cir., 177 F.2d 579, 581, quoted also by the District Court in its opinion in this case, preference was given to the governmental interest. Mr. Justice Black, emphasizing the interest of the public in being informed of such matters, concurred. Mr. Justice Stewart agreed with the analysis of the leading opinion, but dissented because he thought Barr had acted to save his own hide by diverting criticism from himself to the plaintiffs, and not in the interest of the agency. The Chief Justice and Justices Douglas and Brennan dissented generally on the ground that the absolute executive privilege should be limited to the President and cabinet officers and, possibly, other appointed officials directly responsible to the President.
If “Barr v. Matteo extended the earlier decisions of this Court to what I and others considered to be the breaking point,” as Mr. Chief Justice Warren observed when dissenting from the denial of a writ of certiorari in Becker v. Philco Corp., 389 U.S. 979, 980, 88 S.Ct. 408, 409, 19 L.Ed.2d 473, this case is much closer to the earlier precedents if we assume that the actor was the Director, himself.
Unlike Mr. Barr, the Director of the CIA is appointed by the President of the United States with the advice and consent of the Senate. He is responsible to the President through the National Security Council. His office is not of cabinet rank, but it is a highly sensitive position. Necessarily, the Director must work in close collaboration with the President, himself, and with such cabinet officers as the Secretary of State and the Secretary of Defense. He is closer by far to the White House than an acting Director of Rent Stabilization, a subordinate official under the Director of Economic Stabilization.
In Barr v. Matteo, too, there was room for Mr. Justice Stewart’s view that Barr acted not so much to protect the agency from criticism as to divert the criticism from his shoulders to those of his two subordinates. Here, in contrast, we have no such possibility. While we cannot penetrate the cloak of secrecy which surrounds the CIA, there is no reason to suppose the defamation had any relation to the Director’s personal career or his reputation or to those of his subordinates. For all that appears, it was done entirely out of consideration of the national interest.
The CIA and its Director are specifically charged with the duty and responsibility of protecting sources of foreign intelligence and methods of collecting such intelligence from unauthorized disclosure. That aliens within this country are sources of foreign intelligence, as claimed by the Director, has been recognized by the Congress. If the Director determines that an alien’s entry for permanent residence in the United States is in the interest of national security or essential to the Agency’s intelligence mission, the entry of the alien and his family is allowed though they would be otherwise inadmissible. Unlike Barr, who acted under no direction or specific authorization to issue press releases, action here to protect the integrity of sources of foreign intelligence was explicitly directed by Congress.
If it be said that the defamation here was deliberate, and it was, it was no more deliberate than the defamation in Barr v. Matteo, and its purpose was loftier. While the veil of secrecy hampers our appraisal of the situation confronting the CIA, enough appears to relate the defamation to governmental interests.
The Director has sworn in his affidavits that Raus and other Estonian emigrés in this country had been sources of foreign intelligence and that other sources of such intelligence had been developed through them. Plainly implicit in the Director's affidavits and the testimony is the receipt by the CIA of information, believed reliable, that Heine was a secret Soviet agent. Such agents do not wear the guise of their masters and if one could successfully infiltrate the Estonian emigré sources in this country he could expect to discover the foreign sources of intelligence developed through them. In such circumstances, is the CIA to seek an indictment on charges it cannot prove if the sources of its information are its own secret agents in the Soviet Republic? Is it to sit idly by, suffering a pollution of its sources of foreign intelligence and the intimidation, arrest and persecution of its foreign agents? Or can it protect its sources of information, as required by the statute, by “warning” its own sources that the infiltrator is, or may be, a Soviet agent? In a sensitive area, closely touching national defense, the latter choice seems the one demanded by the national interest, notwithstanding the devastating impact of the warning upon the one thus accused of espionage. While the effect of the defamation upon the plaintiff here may have been greater than the harm suffered by the plaintiffs in Barr v. Matteo, the relation of the defamation to the national interest is much closer.
While the claim of secrecy prevents our obtaining a clear view of the entire scene, the Director’s sworn, but undocumented, claims are enough to support the claim of governmental privilege. That ought to be enough when the statements are those of an official in so responsible an office and a requirement of further documentation and elaboration would violate the privilege of state secrets or greatly burden its exercise.
Thus far, our analysis of the problem is deficient, for we have assumed that the Director, himself, was the author of the defamation. The present record does not show that he was, though it is certainly inferable that the instructions to Raus were given by one having authority from the Director to issue them. In appraising this case in comparison-with Barr v. Matteo, however, it has been useful to start with the assumption that the Director, himself, uttered the defamation, for it should follow, as of course, that the subordinate who acts with the authorization of the superior is entitled to claim the same privilege as the superior.
If, in defamation cases, recognition of an absolute privilege for judges, legislators and highly placed executive officers of the government, when acting in line of duty, is to serve its intended purpose, it must extend to subordinate officials and employees who execute the official’s orders. There would be little purpose to a cloak of immunity for Mr. Barr if Mr. Matteo were allowed to maintain an action for defamation against all of those subordinates in his office who “published” the defamation in the course of handling and distributing the press release. There would be no advantage in protection to a judge against actions for defamation founded upon statements made by him in an official opinion written for his court, if such actions could readily be maintained against his secretary who, at his direction, typed and transmitted the opinion, or against the clerk of the court who published it. If the circumstances impose a compelling moral obligation upon the superior to defend and indemnify the subordinates, immunization of the superior alone from direct defamation actions would be a useless formalism.
Recognition of an absolute privilege of the subordinate by attribution of the superior thus appears to be a necessary corollary of the superior’s privilege. It is generally recognized that an agent, acting within the scope of his authority, does have whatever privilege the principal would have enjoyed if he had acted for himself. The principle is applicable in defamation actions and, if an authorized agent would have been privileged, subsequent ratification confers the privilege upon an unauthorized agent. Applicability of the principle to this case has been suggested in an article generally critical of the District Court’s decision.
We conclude that the absolute privilege is available to Raus if his instructions were issued with the approval of the Director or of a subordinate authorized by the Director, in the subordinate’s discretion, to issue such instructions, or if the giving of the instructions was subsequently ratified and approved by such an official.
Though the Director’s affidavits state that Raus acted under instructions of the CIA, which certainly strongly implies that the instructions were given by, or with the approval of, a responsible, authorized official of the Agency and though the Director’s appearance in the case carries with it a strong implication of his personal ratification and approval, it is said that on the present record there is still a permissible inference that the instructions were given by an unauthorized underling and that his action has never had the approval of a responsible official of the Agency having authority to issue or approve such instructions. The inference seems unlikely, but we cannot say it is foreclosed by the present record.
Since summary judgment was issued, we will vacate the judgment so that, if the plaintiff represents to the District Court serious reliance upon the inference, further inquiry may be had and additional findings made. The inquiry should be directed to the identity of the official within the Agency who authorized or approved the instructions to Raus. Disclosure of the identity of the individual who dealt with Raus is not required; the answer to be sought is whether or not the Director or a Deputy Director or a subordinate official, having authority to do so, authorized, approved or ratified the instructions. If such disclosures are reasonably thought by the District Judge to violate the claimed privilege for state secrets, they may be made in camera, to that extent. Disclosures in camera are inconsistent with the normal rights of a plaintiff of inquiry and cross-examination, of course, but if the two interests cannot be reconciled, the interest of the individual litigant must give way to the government’s privilege against disclosure of its secrets of state.
Finally, we may observe that while we generally approve entry of summary judgment for the defendant, subject only to the limited additional inquiry we direct, the plaintiff would fare no better if the defendant’s privilege were held to be not absolute, but only qualified. Heine cannot controvert the claim of Raus, supported by the CIA, that he acted under instructions of that Agency. Heine claims no publication exceeding the instructions. He has no basis for a showing of malice. If summary judgment is appropriate after the additional, limited inquiry we direct, it will avoid the necessity of a trial and possible compromise of state secrets which the government is entitled to preserve.
Vacated and remanded.
. His overt employment was in the Bureau of Public Roads in Washington.
. Earlier, in an affidavit, the Director, himself, had sought to invoke the secrecy privilege generally as to any information in addition to that disclosed in the affidavits.
. Heine v. Raus, D.C.Md., 261 F.Supp. 570.
. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434; Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454.
. In addition to requiring Raus to answer some questions, the District Court rejected the first affidavits of the Director of the CIA as insufficient to support the claim of absolute governmental privilege. As a result, additional affidavits containing additional information were filed.
. See Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780.
. 50 U.S.C.A. §§ 403(d) (3), 403g.
. 50 U.S.C.A. § 403h.
. Restatement (Second), Agency § 345 (1958).
. Ibid. Illustration 2.
. Ibid. Comment (e).
. Spying and Slandering: An Absolute Privilege for the CIA Agent? 67 Col.L. Rev. 752.
. Here, it would matter not if the instructions were unauthorized within the Agency as long as Raus believed them to be.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_genapel2 | I | 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.
UNITED STATES of America, Appellee, v. James C. HAMILTON, Appellant.
Nos. 79-1340, 79-1611.
United States Court of Appeals, Ninth Circuit.
April 30, 1980.
Rehearing Denied June 23, 1980.
Patrick R. Doyle, Las Vegas, Nev., for appellant.
C. Stanley Hunterton, Las Vegas, Nev., for appellee.
Before KILKENNY, SKOPIL and PRE-GERSON, Circuit Judges.
KILKENNY, Circuit Judge:
NATURE OF THE CASE
Appellant was indicted, tried by a jury, and convicted of filing a false and fraudulent income tax return, understating his income for the year 1975, in violation of 26 U.S.C. § 7201.
From January, 1975, through May, 1976, appellant was the manager of slot machine operations for the Fremont Hotel and Casino in Las Vegas, Nevada. Briefly stated, the evidence showed that appellant acquired substantial holdings in real estate, stocks, and savings accounts while his liabilities increased by less than $13,000.00 in 1975. The government showed that appellant experienced an increase in net worth of $64,664.00 in twelve months on a reported taxable income of less than $26,000.00, and ultimately demonstrated that appellant had a true taxable income for the year 1975 of $68,000.00, and that he had evaded $12,-878.00 in taxes. Substantial evidence was presented from which it could be inferred that the likely source of the increase in net worth was a slot machine “skim.”
METHOD OF PROOF
Appellee employed what is commonly known as the “net worth and expenditures”
method of proof. This procedure was approved by the Supreme Court in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), and was recognized and approved by this court as recently as United States v. Gardner, 611 F.2d 770 (CA9 1980).
In framing the law on the subject, the Supreme Court has said that the government, to sustain a conviction, must prove the three elements of the offense: (1) the existence of a tax deficiency, (2) willfulness in evading taxes, and (3) an affirmative act constituting an evasion or attempted evasion of the income tax. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965). In proving the elements, the government is required to: (1) accurately establish the defendant’s opening net worth, (2) identify a likely source of taxable income from which it may be inferred that the defendant’s increase in net worth arose, and (3) conduct a reasonable investigation of any leads that suggest that defendant properly reported his income. Holland, supra; Gardner, supra. The latter three requirements are imposed because of the nature of the net worth and expenditures method of proof. As Holland and Gardner caution, the evidence in this kind of case should be carefully reviewed “bearing constantly in mind the difficulties that arise when circumstantial evidence as to guilt is the chief weapon of a method that is itself only an approximation.” Holland, supra at 129, 75 S.Ct. at 132.
PRINCIPAL ISSUES ON APPEAL
I. Whether the government proved the existence of a tax deficiency.
II. Whether the government proved the element of willfulness of appellant in attempting to evade income taxes.
III. Whether the government proved an affirmative act constituting an evasion of income taxes.
I.
The establishment of an accurate opening net worth is crucial under the net worth and expenditures method of proof for “the correctness of the result depends entirely upon the inclusion in this sum of all assets on hand at the outset.” Holland, supra 348 U.S. at 132, 75 S.Ct. at 134. Our review of the record convinces us that the government has supplied evidence to meet this requirement. Appellant’s chief argument is that he must have had a cash hoard on hand at the end of 1974 and that this would mean that his opening net worth was substantially greater than the amount the government established. In this regard, he argues that the government failed to investigate and “purify” assets and sources of income allegedly revealed by a “150 M” notation on a 1974 new account form with a brokerage firm, by large bank deposits in 1972, 1973, and 1975, and by a 1967 loan application.
The government is not required “to embark on a Magellan-like expedition in order to prove that the unreported income was taxable.” United States v. Heitt, 581 F.2d 1199, 1201 (CA5 1978). It is only required to pursue any reasonable leads as to possible sources of nontaxable income, United States v. Hom Ming Dong, 436 F.2d 1237, 1242 (CA9 1971). It need not “negate every possible source of nontaxable income, a matter peculiarly within the knowledge of the defendant.” Holland, supra 348 U.S. at 138, 75 S.Ct. at 137. The principle remains that once the government has established its case, the defendant remains silent at his peril. Holland, supra at 138-139, 75 S.Ct. at 136-37; United States v. Costello, 221 F.2d 668, 671 (CA2 1955), aff’d. 350 U.S. 354, 76 S.Ct. 406, 100 L.Ed. 397 (1956).
Appellant provided no reasonable leads, but now argues that the documents and deposits mentioned above put the government on notice of possible sources of income. We disagree. The loan application made only vague references to some assets allegedly held by appellant in 1967. Only a fraction of those assets were even valued on the application; and that at only $2,500.00. There was no indication that these assets were sold to produce a cash hoard or that they were the source of nontaxable income. At trial, it became apparent that the “150 M” notation on the brokerage house new account form meant nothing. Testimony revealed that it was put on the form by a salesman and that there was no evidence in the record to substantiate the figure. Finally, there was no reasonable suggestion that the bank deposits camo from nontaxable sources. It would be entirely unreasonable to require the government to pursue these phantom clues as to some mysterious sources and assets.
We, of course, recognize that the burden is always on the government to prove each element of the offense beyond a reasonable doubt. The record reveals that the government thoroughly investigated appellant’s financial status at the beginning of 1975. It established appellant’s opening net worth figure by considering the information contained in appellant’s income tax returns over the previous six years, nine bank accounts and their records, the acquisition and sale of ten securities, and six real estate transactions. Viewing the evidence in the light most favorable to the government, as this court must, Gardner, supra at 775; Horn Ming Dong, supra at 1242, there is sufficient evidence to support the jury’s verdict on this question.
As part and parcel of this issue of the sufficiency of the evidence of a tax deficiency, it is appellant’s contention that the government failed to meet its burden of proving the likely source for the unreported income, Holland, supra 348 U.S. at 138, 75 S.Ct. at 136; Gardner, supra at 775, and that the district court improperly admitted figures from standard budgets prepared by the Bureau of Labor to show appellant’s living expenses.
We have no difficulty in holding that the jury could well have found that the likely source of taxable funds was the illegal diversion of money from slot machine revenues at the Fremont Hotel, where appellant was the slot machine manager. Fremont employees testified to the unusual system of dealing with slot machine revenues. The comptroller of the Fremont testified that during 1975 his representative was barred from the counting and wrapping of coins taken from the slot machines. Other witnesses testified regarding the operation of an unusual auxiliary bank which was very susceptible to being used to divert funds. The corporate head of the Fremont testified that he had filed an insurance claim to recover money lost by the Fremont through employee dishonesty. Most convincingly, a statistical expert examined the Fremont’s slot machines, reviewed their reported performance, and compared them with similar machines at other casinos and with the manufacturer’s built in performance specifications. He concluded that the odds against such machines performing as poorly as the Fremont’s records indicated were greater than two billion to one. We disagree with appellant’s contention that this statistical analysis should not have been admitted because it was speculative, confusing to the jury, and introduced without proper foundation. There is no question that it was highly relevant to whether moneys were being diverted from the slot machines and that it would likely assist the trier of fact in reaching its decision as to whether the government showed a likely source of income. The admission of the testimony was well within the trial court’s discretion under FRE 702 and 703.
We observe that those involved in gambling and its related activities are engaged in enterprises having indeterminate possibilities and capable of bringing in large sums of money in cash. Costello, supra at 672. Appellant was manager of the slot machine operation at the Fremont and was present at the counting and wrapping of the coins. He also told an acquaintance that he had been making $1,000.00 a day during his tenure at the Fremont. Taken in its totality, the evidence, both circumstantial and direct, established the likely source of appellant’s unreported income.
As noted above, the proof of the nondeductible expenditures is one factor in the net worth and expenditures method of proof. The taxpayer’s nondeductible expenditures are added to the adjusted net values of the defendant’s assets at the end of the subject year and, consequently, increase the figure to be compared with the opening net worth. In this case, the government found that during 1975 there was little activity in appellant’s checking account and that the microfilming from two of appellant’s banks was illegible. Consequently, it was impossible to reconstruct appellant’s living expenses in the typical manner of producing checking account records. Instead, the government was forced to rely on independent estimates from the Bureau of Labor on what a person with appellant’s reported income and family and financial obligations would be expected to spend on nondeductible items. Certainly, appellant must have expended some funds to maintain himself. At all times the government relied on the figures most favorable to appellant. Under these circumstances, we see no reason why these statistics should not have been admitted.
II.
Relying principally on a set of guidelines set forth in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943), appellant argues that there is absolutely no evidence, circumstantial or otherwise, to support the finding of willfulness. However, the Spies decision does not support appellant’s position. For that matter, the decision recognizes that willfulness may be shown by a variety of circumstances:
“Congress did not define or limit the methods by which a willful attempt to defeat and evade might be accomplished and perhaps did not define lest its effort to do so result in some unexpected limitation. Nor would we by definition constrict the scope of the Congressional provision that it may be accomplished ‘in any manner.’ By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or« false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one’s affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or conceal. If the tax-evasion motive plays any part in such conduct the offense may be made out even though the conduct may also serve other purposes such as concealment of other crime.” Spies, supra at 499, 63 S.Ct. at 368. [Emphasis supplied.]
It is clear that the acceptable indicia of willfulness are not set in concrete.
It has been said that the crime of attempted tax evasion has its roots in nondisclosure. United States v. Ramsdell, 450 F.2d 130, 133 (CA10 1971). Every indication is that appellant was involved in a slot machine “skim.” Certainly, one engaged in such conduct would not be expected to fore-go his prior secretive design of concealment and tell all on his tax return. We consider it significant that the underlying activity producing the unreported income is itself illegal. We also note that the amount of the understatement alone is sizeable and we think that that is not altogether irrelevant on the issue of willfulness. However, mere understatement of income, without more, is not sufficient evidence on this element. Holland, supra 348 U.S. at 139, 75 S.Ct. at 137; United States v. House, 524 F.2d 1035, 1044-45 (CA3 1975).
Here, we have much more than a mere understatement. One of the important indicia of willfulness mentioned in Spies is handling one’s affairs to avoid making a record of transactions, and any other conduct, the likely effect of which is to mislead or to conceal. See also, United States v. Mansfield, 381 F.2d 961 (CA7 1967), cert. denied 389 U.S. 1015, 88 S.Ct. 593, 19 L.Ed.2d 661. Appellant made large cash deposits and withdrawals from his several accounts during the indictment period and he acquired large holdings in corporate stock by paying $6,000.00 in cash in one instance and $20,000.00 in cash in another. Certainly, such large acquisitions are normally accomplished by a check or with some other record of the transaction.
The record shows that for the six years from 1969 through 1974, the six years preceding the indictment, appellant was employed as a slot machine mechanic, making a taxable income of something less than $10,000.00 per annum on up to a high of just over $16,000.00. In 1975, he became the manager of all slot machine operations of his employer, the Fremont Hotel. He was paid at the beginning at the rate of $732.00 twice each month, up to $780.00 prior to the termination of his employment in May, 1976. Not only did he work full time at this job, but there is testimony in the record which would show that he occasionally worked seven days a week. Almost half of the salary checks went directly into a savings account. In addition to all of the unusual cash transactions and the substantial increase in his wealth on a reported income which could not account for the increase, appellant remarked to an associate that he was earning $1,000.00 a day. While each of these factors standing alone might not be sufficient to support a finding of willfulness, we have no difficulty in holding that the entire record provided substantial evidence from which a jury could properly infer that appellant knowingly underreport-ed his income for the purposes of attempting to evade income taxes.
III.
Appellant’s filing a false and fraudulent return understating his income is sufficient to satisfy the affirmative act requirement. Sansone, supra 380 U.S. at 352, 85 S.Ct. at 1010; United States v. Schafer, 580 F.2d 774 (CA5 1978), cert. denied 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430; Swallow v. United States, 307 F.2d 81, 83 (CA10 1962), cert. denied 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 499 (1963).
INCIDENTAL ISSUES
Appellant’s contention that the district court abused its discretion in refusing to conduct an investigation into the allegation that the jury relied on sources outside the record is meritless. For that matter, counsel’s conduct in calling the jurors after the verdict and secretly tape recording the conversations was improper. To hold a hearing on whether the jury relied on sources outside the record, with counsel’s investigation as the basis for such a hearing, might well establish a precedent which would encourage the harassment of jurors and encourage jury tampering. See United States v. Weiner, 578 F.2d 757 (CA9 1978), cert. denied 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651.
We have examined appellant’s claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and find it but a figment of his imagination.
CONCLUSION
Viewing the entire evidence in the light most favorable to the government, as we must, we find there was sufficient evidence to find appellant guilty beyond a reasonable doubt. Furthermore, the other assignments of error are groundless. The judgment of conviction must be affirmed.
IT IS SO ORDERED.
. To prove the existence of a tax deficiency under the net worth and expenditures method of proof, the government must first establish an “opening net worth” or total net assets of the taxpayer at the beginning of a given year. The government then proves the increase in the taxpayer’s net worth for the year by calculating the difference between the net worth of the taxpayer’s assets at the beginning and at the end of the year. To that figure is added the taxpayer’s nondeductible expenses, including living expenses, yielding the putative income. If that figure is substantially greater than that reported by the taxpayer, the government claims the difference is unreported income.
. We note that had they in fact been sold between 1969 and 1975, appellant failed to report any gain on his tax returns.
. See also, United States v. Hom Ming Dong, 436 F.2d 1237, 1240 (CA9 1977) (absence of business record sufficient to establish willfulness); Feichtmeir v. United States, 389 F.2d 498, 503 (CA9 1968) (buying of several large cashier’s checks on different days, irregularities in personal books, large volume of currency transactions during indictment period sufficient to support a finding of willfulness); United States v. Swallow, 511 F.2d 514 (CA10 1975), cert. denied 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66; United States v. House, 524 F.2d 1035 (CA3 1975).
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_initiate | F | 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.
JONES DAIRY FARM, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and Local 538, United Food and Commercial Workers Union, AFL-CIO-CLC, Intervening Respondent.
Nos. 89-2512, 89-2821.
United States Court of Appeals, Seventh Circuit.
Argued April 10, 1990.
Decided Aug. 7, 1990.
Herbert P. Wiedemann, Foley & Lardner, Milwaukee, Wis., for petitioner/cross-respondent.
Aileen A. Armstrong, N.L.R.B., Appellate Court — Enforcement Litigation, Joseph Oertel, Paul J. Spielberg, N.L.R.B., Washington, D.C., George F. Squillacote, N.L. R.B., Milwaukee, Wis., for respondent/cross-petitioner.
Kenneth R. Loebel, Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, Milwaukee, Wis., for intervening respondent.
Before CUDAHY, COFFEY and MANION, Circuit Judges.
CUDAHY, Circuit Judge.
On June 15, 1989, the National Labor Relations Board (the “Board,” the “NLRB”) ordered Jones Dairy Farm (“Jones”) to cease and desist from implementing a mandatory “work hardening” program. Jones asks us to review and set aside the Board’s order; the Board cross-petitions for enforcement of its order.
Jones raises two points in its petition. First, Jones argues that the Wisconsin Worker’s Compensation Act, Wis.Stat. § 102.01 et seq., grants it a right to implement the program in order to reduce its disability payments to injured and ill employees. Second, Jones contends that the administrative law judge (the “AU”) and the NLRB violated its right to due process by deciding the case on the basis of a no-strike clause in the collective bargaining agreement (the “CBA”), despite the fact that Local 538 (the “Union”) did not prosecute its case on that theory. For the reasons discussed below, we deny Jones’s petition for review and grant the NLRB’s petition for enforcement of its order.
I. BACKGROUND
At the time the dispute arose over the work hardening program, Jones and the Union were parties to a CBA effective from November 9, 1985, to October 1, 1988. The CBA contained seniority and sick pay provisions. Article XI, the seniority clause, provided in material part:
11. In cases of proven disability, where an employee is not able to perform a job according to his seniority, the Company and the Union may deviate from the seniority provisions in order to place him on a job he can perform.
General Counsel’s Exh. 2, at 34.
Article XVI set out the sick pay provisions. It read:
1. Regular full-time employees with twelve (12) months or more of continuous service with the Company, who are absent because of physical disability due to sickness or accident (except where such disability is covered by the Workmen’s Compensation Law of Wisconsin), where such disability is supported by acceptable medical evidence, shall receive Sick Pay.
2. Subject to the other provision [sic] of this Article, Sick Pay shall be payable for each period the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation.
5. In cases of disability which would have been covered by this article but for the fact that they are covered by the Workmen’s Compensation Law of the State of Wisconsin, the employee, if eligible under this article, will receive the difference between what he received as compensation under said law and the amount he would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law.
Id. at 43, 45-46.
Further, the CBA contained a no-strike/no-lockout clause that read in part:
1. Since arbitration is provided for grievances, since the procedures of the National Labor Relations Board are available for claims of unfair labor practices, and since negotiation on matters not covered by this Agreement is to be deferred until the expiration of this Agreement, the Union will not call or sanction any strike, stoppage, slowdown or other interference with work during the term of this Agreement and the Company will not lock out any or all of its employees.
Id. at 42 (emphasis added).
Because of a high work-related accident rate, Jones and its worker’s compensation insurer, EBI, began studying methods to reduce the number and severity of acci-' dents and the cost of the company’s disability payments. Among the options explored by the company was a so-called “work hardening” program offered by Opportunities, Inc. (“OI”), an organization specializing in boosting the confidence and strength of temporarily partially disabled workers and preparing them to return to their regular jobs. OI provides light duty jobs in a factory setting to temporarily partially disabled employees of participating companies. The companies pay a service fee to OI and also pay wages to their own employees. Under the program, a participating company’s physician would examine a disabled employee and determine what, if any, work he could perform. An appropriate assignment would be made at OI, and the employee would work at the assigned position under the supervision and direction of OI. The employee would earn wages, which would be offset by a reduction in disability benefits. Jones proposed to pay its employees assigned to 01 an hourly wage of $4.00 — about one-third of the normal wages prescribed by the CBA. Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, Case No. 30-CA-9395, at 3 (June 23, 1987) (hereafter the “ALJ’s findings”). Jones asserts that even after state and federal taxes, the partially disabled employee would be no worse off than if he had remained on temporary total disability status. If the employee declines the limited duty work, however, his benefits are still reduced according to the formula, and he obviously does not receive any wages.
On June 23, 1986, Jones first notified the Union that it was considering the work hardening program as well as several plans directed at accident prevention and injury and health counseling. Representatives of Jones, EBI and the Union toured OI’s facilities two days later, but when Jones again raised the proposal at a regular grievance meeting on July 14, the Union refused to give its consent. On September 29, 1986, Jones informed the Union that it intended to implement the 01 program unilaterally on October 15; at the Union’s request, Jones delayed action on the plan until it met with Union officials at a special meeting on October 17. At the meeting, the Union refused to consent to the work hardening program and specifically stated as its major concern the issue of bargaining unit employees working outside of Jones’s premises. On October 24, Jones advised the Union that it would unilaterally implement the program on November 3; the company sent letters to the same effect to all of its employees on October 31. On November 11, the Union filed a grievance protesting Jones’s unilateral implementation of the work hardening program, General Counsel’s Exh. 7, and on November 17, the Union filed its charge with the NLRB.
The complaint issued by the General Counsel of the NLRB pursuant to the Union’s charge accuses Jones of engaging in unfair labor practices in violation of sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (the “Act,” the “NLRA”), 29 U.S.C. §§ 158(a)(1) and (5), 158(d). Jones’s App. at 32-37. The complaint explicitly alleges that the work hardening program modified the seniority and sick pay provisions without the Union’s consent. The complaint mentions neither the no-strike clause nor the “management rights” clause contained in Article V of the CBA. General Counsel’s Exh. 2, at 9. Between November 1986 and April 1987 (when the parties presented their cases to the AU), Jones assigned seven of its employees to the 01 work hardening program. Four agreed to participate; three refused and suffered reduced disability compensation. AU’s findings at 5.
The AU concluded that the work hardening program was encompassed within “wages, hours, and other terms and conditions of employment” and was therefore a mandatory subject of bargaining under section 8(d) of the NLRA. The AU further determined that the Wisconsin Worker’s Compensation Act was not preempted by the NLRA since the employer was not required to implement a light duty/rehabilitation program. Rather, according to the AU, the implementation of such a program was negotiable. The AU next addressed the Union’s contention that the program impermissibly expanded the bargaining unit. He concluded that “farming out” bargaining unit employees, AU’s findings at 12, was a permissible subject of bargaining that required the consent of both the Union and the employer. The AU then rejected Jones’s contention that the no-strike clause permitted it to take unilateral action on any subject (like the work hardening program) not covered by the CBA. The ALJ read the no-strike clause in a manner wholly contrary to Jones’s interpretation, concluding that, in fact, the clause mandated that the status quo be preserved during the term of the CBA with regard to any subjects not specifically addressed in the CBA. Consequently, the AU ordered Jones to cease and desist from implementing the work hardening program without the Union’s consent.
Jones fared no better with the NLRB, although the NLRB did modify the AU’s findings in some respects. The NLRB agreed with the AU that the work hardening program was a mandatory bargaining subject under section 8(d) because worker’s compensation benefits, although provided by state law, are nevertheless “emoluments of value which accrue to employees out of their employment relationship.” Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, 295 N.L.R.B. No. 20, at 7 (June 15, 1989) (citations omitted) (hereafter the “NLRB decision”). The Board rejected the AU's finding that the program was a permissive bargaining subject because it expanded the scope of the bargaining unit. However, the Board concluded that this aspect of the AU’s determination was not necessary to the resolution of the case, since the Board also agreed with the AU that the no-strike clause prohibited Jones from unilaterally implementing the OI program.
II. JONES’S CLAIMED RIGHT TO IMPLEMENT THE OI PROGRAM UNILATERALLY
Jones asserts, essentially, that its implementation of the work hardening program was authorized by state law and was none of the NLRB’s concern. In support of its position, Jones cites the Supreme Court’s decisions in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). Neither of these cases, however, removed the OI program from the purview of the NLRA and the regulatory jurisdiction of the Board.
Although neither the AU nor the NLRB devoted much attention to the matter, we consider it important to inquire initially whether the Wisconsin Worker’s Compensation Act did in fact grant Jones a right to-impose a light duty rehabilitation program as a means of reducing its disability indemnity. None of the parties has directed us to a provision of the Worker’s Compensation Act that expressly vests an employer with such a right. The record, too, is ambiguous on this point.
Jones relies in large measure on a decision in its favor rendered by an AU in the Worker’s Compensation Division of Wisconsin’s Department of Industry, Labor and Human Relations (the “DILHR”). Castenon v. Jones Dairy Farm, Nos. 87 64614 & 88 11916 (Mar. 20, 1989), reprinted in Jones’s App. at 38-46. The Casten-on decision, which explicitly declined to consider the applicability of federal labor law to the matter, referred to Wis.Stat. section 102.35(3), but then stated that the present matter was not a section 102.35(3) dispute. That section provides:
(3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within .the employe’s physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.
(Emphasis added.) Section 102.35(3) is clearly concerned with the rights of recuperating employees. It may be that the Wisconsin AU in Castenon extrapolated from this provision to a corresponding right in employers to insist that temporarily partially disabled employees work up to their physical and mental capacities.
Another section of the Worker’s Compensation Act that may apply is section 102.-43(2). That section provides that the weekly compensation schedule for partial disability is “such proportion of the weekly indemnity rate for total disability as the actual loss of the injured employe bears to his average weekly wage at the time of his injury.” Chris M. Faulhaber, Jr., Administrator of the Worker’s Compensation Division of the DILHR, referred to section 102.43(2) in a letter to the Union’s president and explained how benefits for partial disability are affected by earnings from part-time work. It could be inferred from Faul-haber’s letter — although the letter did not say so expressly — that the DILHR would require a healing worker to accept a position within his capabilities if such a position were offered by his employer. But the letter emphasized that any “part-time or limited employment must be employment with the employer for whom the employe was working when injured” and “should be within the parameters of the union contract in effect.” General Counsel’s Exh. 8.
Jones cites another source in support of its claimed right — the Worker’s Compensation Handbook (1983 & Supp.1985) prepared by the Wisconsin Bar and reprinted in Jones’s Exhibit 8. The Handbook does say that an employee is required to take light duty work (to the extent of his capacities) if it is offered by his own employer; however, the Handbook does not address whether an employee must take light duty work, assuming he is able, with a different employer or on different terms of employment. Further, the Handbook makes no mention of the potential effect of a CBA on the recuperating employee’s obligation to return to light duty work. Finally, the Handbook asserts that its summary of employees’ obligation to take light duty work is based on the “long-standing construction of the [Worker’s Compensation] Statutes” by the DILHR and one unpublished opinion of the Wisconsin Circuit Court. Jones’s App. at 36-37. The Handbook cites as its sole authority an unpublished Wisconsin Circuit Court case — Gillette Well Drilling v. DILHR, Case No. 143-142 (Dane Co. Cir.Ct. April 7, 1975). Under Wisconsin Civil Procedure Rule 809.23(3), unpublished cases have no precedential value.
It may be under Wisconsin law that employers do have a right to insist that their partially disabled employees accept positions they are capable of performing, if the employer has such a position and makes it available. The parties have cited no published case, nor has our own research uncovered any, that establishes such a right. The evidence of DILHR policy contained in the record is inconclusive. Nevertheless, for the purposes of resolving this matter, we will assume that an employer is entitled under Wisconsin law to recall a recovering employee to an appropriate job at the employer’s place of business.
Jones attempts to equate its asserted right with rights guaranteed to workers under state laws prescribing, for example, minimum wages and maximum hours. Such laws predated the federal labor laws, and they form a floor for the negotiation of the substantive terms of a collective bargaining agreement. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 2222, 96 L.Ed.2d 1 (1987) (“[P]re-emption should not be lightly inferred in [the area of state regulation establishing minimum terms of employment], since the establishment of labor standards falls within the traditional police power of the State.”); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757, 105 S.Ct. 2380, 2398, 85 L.Ed.2d 728 (1985) (“When a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act.”). By comparing its asserted right, which it also labels an unqualified right, to minimum labor standards laws, Jones would require us to choose between recognizing its asserted right or declaring the Wisconsin Worker’s Compensation Act preempted. Such a choice is unnecessary. The Wisconsin statute has been drafted and interpreted to account for CBA provisions. Section 102.35(3) expressly defers to any applicable seniority provisions in a labor contract, and Faulhaber’s letter to the Union’s president emphasized that the employer’s recall of an employee is subject to the terms of a binding CBA. In our view, therefore, the NLRB persuasively argues that even if Jones had a right under Wisconsin law to insist that its injured workers accept employment up to their capacities, Jones was not required by state law to exercise that right. The right — if it indeed existed — was negotiable.
The Board accepted the ALJ’s conclusion that the OI program was a mandatory subject of bargaining, since it clearly fell within the scope of “wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). The Board’s findings of fact must be upheld if they are supported by substantial evidence on the record as a whole, 29 U.S.C. § 160(e); David R. Webb Co. v. NLRB, 888 F.2d 501, 503 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2560, 109 L.Ed.2d 743 (1990). Further, the Board’s legal conclusions should be accepted and enforced unless they are irrational or inconsistent with the act. NLRB v. Financial Institution Employees, 475 U.S. 192, 202, 106 S.Ct. 1007, 1012-13, 89 L.Ed.2d 151 (1986); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); David R. Webb Co., 888 F.2d at 503, 505; Maas & Feduska v. NLRB, 632 F.2d 714 (9th Cir.1979). In particular, we give substantial deference to the Board’s determinations about mandatory and permissive subjects of bargaining. Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849; Jack Thompson Oldsmobile, Inc. v. NLRB, 684 F.2d 458, 461-62 (7th Cir.1982); Maas & Feduska, 632 F.2d at 718-19.
The NLRB noted that the OI program affected temporarily disabled employees’ wages, hours, types of work and workloads. Further, the program would have reduced employees’ sick pay and disability benefits, and these welfare benefits are a mandatory subject of collective bargaining. See Metropolitan Life, 471 U.S. at 751-52, 105 S.Ct. at 2395-96 (citing Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159 & n. 1, 92 S.Ct. 383, 387 & n. 1, 30 L.Ed.2d 341 (1971)). Even if sick pay and disability benefits were not per se mandatory bargaining items, they became so by their inclusion in the CBA. Article XVI(2) clearly stated that sick pay “shall be payable for each period that the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation.” (Emphasis added.) Subsection 5 of the same article required Jones to make up the difference, if any, between an employee’s state-mandated worker’s compensation benefits and “the amount [the employee] would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law.” Jones’s obligations under the CBA with regard to sick pay and disability benefits were explicit. Jones could not attempt to modify unilaterally those provisions during the term of the CBA without obtaining the Union’s consent or bargaining to impasse. 29 U.S.C. § 158(d). The NLRB’s conclusion that the OI program was a mandatory bargaining topic is, therefore, objectively reasonable and wholly supported. We accept that determination as conclusive in these circumstances.
The Board did not reach the question, however, whether Jones had bargained with the Union over the OI program in good faith to impasse. Jones does not argue in its petition to us that impasse was reached, or even sought. In the alternative to its claim of an unqualified right to implement the OI program unilaterally, Jones maintained before the ALJ and the Board that the no-strike clause permitted it to take action unilaterally with respect to any item not covered by the CBA. Both the ALJ and the Board took the opposite view of the no-strike clause’s import, and the Board resolved the matter on the basis of its reading of that clause.
We owe the Board no special deference in matters of contractual interpretation. Irvin H. Whitehouse & Sons Co. v. NLRB, 659 F.2d 830, 833 (7th Cir.1981); Local Union 1395, Int’l Bhd. of Electric Workers, AFL-CIO v. NLRB, 797 F.2d 1027, 1030-31 (D.C.Cir.1986). But we are, of course, mindful of the Board’s considerable experience in interpreting collective bargaining agreements. According to the Board, the no-strike clause was intended by the parties to preserve the status quo during the agreement’s term on mandatory bargaining matters not addressed by the CBA, “just as Section 8(d) [of the NLRA] preserves the status quo as to subjects covered by the agreement.” NLRB decision at 8. Thus, any alteration of the terms of employment during the life of the CBA required mutual assent, and it is undisputed that the Union withheld its consent here. The no-strike clause clearly evinced a desire by the parties to defer negotiation on mandatory items, not, as Jones argues, to waive it. Therefore, we agree with the NLRB and the ALJ that Jones was not free to implement the OI program during the term of the CBA without the Union’s consent; nor could Jones insist that the Union bargain to impasse on that subject. Jones’s unilateral implementation of the OI program therefore violated sections 8(a)(1) and (5) of the NLRA. The Board properly ordered Jones to cease and desist from unilaterally implementing the program and to make restitution to the affected employees.
III. JONES’S DUE PROCESS CLAIM
Having failed to convince the AU or the NLRB of its “right” to implement the OI program, Jones now claims that its due process rights were violated because the AU and the NLRB resolved the matter on the basis of the no-strike clause. Since the Union’s charge did not specifically allude to the no-strike clause, Jones complains that it did not receive fair notice of that theory and that it was consequently deprived of an opportunity to prepare an adequate defense.
It is somewhat incongruous that Jones should charge the NLRB with a due process violation, since it was Jones that drew the AU’s and the Board’s attention to the no-strike clause in the first place. This clause was, indeed, a principal component of Jones’s defense in the administrative proceedings to the Union’s unfair labor practice charge. Jones is now dissatisfied with the intepretation of the clause rendered by the AU and accepted by the NLRB (and by this court). That the AU and Board disagreed with Jones over the meaning of the no-strike clause, however, is no basis for a claim that Jones was denied due process.
Evidently, Jones hopes for a remand so that it can introduce some unspecified evidence from the bargaining history in support of its reading of the no-strike clause. But Jones has already been afforded two opportunities to marshall its evidence. We will not remand the case merely because Jones “assures” this court that such evidence exists, Jones’s Brief at 13, without making any effort to particularize the substance of its would-be proffer.
Finally, Jones argues that, had it been apprised that the AU and NLRB would base their decisions on the no-strike clause, it would have defended its position by referring to a “management rights” clause in the CBA. Since Jones itself brought up the no-strike clause, it could have (and should have) drawn the NLRB’s attention to the management rights clause as support for its reading of the no-strike clause. Jones’s inexcusable failure to avail itself before the Board of all of its possible defenses, particularly after the adverse decision of the AU, deprives it of the right to have those arguments decided here. Jones’s claim that it was denied due process of law rings hollow.
IV. CONCLUSION
The NLRB concluded that “[n]othing in the management-rights, sick leave, no-strike/no-lockout provisions or any other section of the collective bargaining agreement permitted the Respondent to alter the status quo in the manner that it has in this case.” NLRB decision at 9-10. Because we agree with the Board’s reading of the CBA, Jones’s petition for review is Denied, and the NLRB’s order is Enforced.
. In 1966, Jones recognized Local P-1236 of the United Food and Commercial Workers Union as the bargaining agent of its production and maintenance, employees. Local P-1236 merged with Local 538 during the pendency of this case. The parties do not dispute that Local 538 is the successor to Local P-1236. See NLRB’s Brief at 4 n. 3.
. Jones gives the following example of the program's operation:
Assume the employee’s regular wage is $8.00 per hour and he regularly works 40 hours per week. His average weekly earnings are $320 ($8.00 X 40 hours). His worker’s compensation indemnity for temporary total disability is $213.00 (Vi X $320.00) [sic] If he works 20 hours per week on a limited duty job he is paid $80.00 ($4.00 x 20 hours) for that work. His wage loss is thus reduced from $320.00 to $240.00, i.e., from 100% to 75% ($240.00 divided by $320.00). This, results in a worker’s compensation indemnity for partial disability of $159.75 (.75 X $213.00). He receives that indemnity, $159.75, plus the pay for the limited duty work, $80.00, for a total of $239.75, which is $26.75 more than the indemnity for temporary total disability.
Jones’s Brief at 8-9.
. Jones does not explain precisely how much of the employee’s wages from the limited duty work would be subject to federal and state taxes. Jones directs us to its Exhibit 13 in the administrative record, but that document expressly involves calculations based only on gross earnings. In light of our disposition of this case, however, the effect of taxes on the disability package is irrelevant.
. The Union concedes that a temporarily partially disabled employee may be required to accept light duty work at Jones's plant. Subsection 11 of Article XI (the seniority provision of the CBA) nevertheless appears to require the consent of both the Union and Jones to place a recovering employee in a suitable position.
. Shortly after implementing the program, Jones declared that it would not apply to employees whose sickness or disability was not work-related; Jones feared that subjecting such employees to the 01 program would violate the sick pay provisions of the CBA. Jones’s Brief at 5 n. 3. Jones does not explain, however, why application of the program to employees suffering from a work-related disability would not ¡also violate the CBA’s sick pay regimen.
. We discuss the management rights clause below.
. Hereafter, we follow the pagination of Jones’s Appendix when referring to the Castenon decision.
. Indeed, the Labor and Industry Review Commission, to which Castenon and his fellow claimants appealed the state ALJ’s decision, reversed the state ALJ’s decision and declared the matter preempted in light of the NLRB’s decision and order in the present case. Intervenor's Motion to Supplement the Record filed Oct. 10, 1989, at 1-7. Whether a matter that may be governed by state law is preempted by an applicable federal law is, of course, a question of Congress’s intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985); Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978). For the reasons we give in this section, we agree with the NLRB that the NLRA and the Wisconsin Worker’s Compensation Act can "peacefully coexist.” NLRB decision at 6.
. The Wisconsin AU who rendered the Casten-on decision testified before the NLRB that Cas-tenon reflects the DILHR’s interpretation of the Worker’s Compensation Act. Tr. at 94-112.
. Unpublished opinions may be cited only "to support a claim of res judicata, collateral estop-pel or law of the case." Wis.Civ.P.R. 809.23(3).
. Jones declares in its brief: “Even if the collective bargaining agreement in haec verba were to preclude Jones from providing limited duty work, a unilateral modification of the agreement to elimination [sic] that prohibition would not constitute a violation of section 8(d).” Jones's Brief at 19. Since we have some difficulty accepting Jones's argument that such a right exists at all, we have considerably more reservations about deeming the “right” absolute and independent of Jones's collective bargaining obligations.
. As we noted above, the ALJ rested his decision on the determination that Jones’s "farming out” of bargaining unit employees to OI was a permissive subject of bargaining that could not be implemented without the Union’s consent. Although the Board disagreed with this aspect of the ALJ’s findings, the issue did not affect the outcome óf the case. Since we resolve the matter on other grounds, we do not reach the Union’s contention that the OI program illegally enlarged the scope of the bargaining unit.
. In any event, it appears that the NLRB, which had the entire CBA before it as an exhibit, in fact considered whether the CBA gave Jones residual authority to take unilateral action in the furtherance of its business with respect to matters not covered by the CBA. NLRB decision at 9 n. 13. The Board found no such broad grant of authority in the CBA in this case.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_appel1_3_3 | C | 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)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
MOFFETT v. FISKE.
No. 5061.
Court of Appeals of District of Columbia.
Argued March 9, 1931.
Decided June 29, 1931.
H. C. Workman, and C. B. Rugg, both of Washington, D. C., for appellant.
Ernest Wilkinson and R. J. Mawhinney, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.
HITZ, Associate Justice.
This is an appeal by William A. Moffett, one of the defendants in an action for damages in'the Supreme Court of the District of Columbia, from a judgment of $198,500, with interest and costs, for alleged infringement of a patent.
- Bradley A. Mske, appellee here, plaintiff there, .was in 1874 graduated from the United States Naval Academy and commissioned an officer of the line.
After various assignments of duty ashore and afloat he served for two years, commencing in the spring of 1900, as inspector of ordnanee at the Bliss Plant, in Brooklyn, where, as he admits and the court finds, “he acquired all the knowledge of torpedoes extant in this country, and he retained that knowledge and experience until the time he applied for his said patent.”
During the winter of 1910-1911, as captain, he was a member of the General Board of the Navy, and head of the Committee on War Plans. Most of his time in that post being spent in devising plans for recapturing the Philippine Islands, if captured by an enemy, it occurred to him that such capture might be avoided by airplanes equipped to carry and discharge torpedoes.
After much thought on this subject, and discussion with his associates of the board, he, then a rear admiral, went to duty as commander of a division of the Atlantic Fleet.
While so detailed, he applied for a patent for a “Method of and apparatus for delivering submarine torpedoes from airships.” This application, with drawings and specifications, being filed in April, 1912, a patent issued thereon July 16, 1912.
This patent covered a device for dropping automobile torpedoes from airships by gravity, with the principle and method of its operation.
For present purposes, the method and apparatus may be described as follows:
An airplane with a torpedo suspended therefrom was to fly at a comparatively high elevation to about 1,500 yards of" its target, swoop down as rapidly and as vertically as possible to within 10 or 15 feet of the water, and, with the bow of the torpedo bearing on the target, start the mechanism, and release the torpedo, to fall by gravity to the water, after which it was to perform its work by its own power and in the usual way.
For this purpose the airplane was to be equipped with chocks on its bottom or lower frame, in which the torpedo was to be held rigid by a strap under its middle connected at one .end with the ship and at the other by a ring with a pivoted latch disengaged by a hand lever to release the torpedo-.
The usual protruding lever for starting the propelling mechanism of the torpedo was to be first pressed forward by the toe of a lever connected by a link with the same hand lever.
Shortly after obtaining his patent, the plaintiff became aide for operations, and though it appears he tried, from time to time, to interest naval authorities in the subject of his patent, he met with little success.
Later, however, the Navy Department undertook experiments with torpedoes, together with airplanes, and, without plaintiff’s assistance, expended much time, energy, and money in obtaining planes which could successfully carry and discharge torpedoes as well as torpedoes which could suceessfuly be carried and discharged.
Those experiments met with some approval, and a number of torpedo planes were placed in service.
Plaintiff claiming infringement of his patent, sought compensation from the government, and, being denied, filed suit under Rev. St. § 4919 (35 USCA § 67) for damages for infringement against the then Secretary of the Navy, two officers alleged to have been concerned in torpedo plane experiments, and Rear Admiral Moffett, who for the greater part of the time of said experiments was chief of the Bureau of Aeronautics.
The suit was brought' against them personally, and as to all but defendant Moffett a voluntary nonsuit was taken before judgment.
It was by agreement tried to the court without a jury, and a judgment of $198,500, with interest and costs, rendered against Admiral Moffett.
.At the conclusion of the evidence, consistently with the manner of trial, the defendant, instead of the usual motion for a directed verdict, moved for judgment because of a shop right in the government, or actual ownership of the patent by the government, because the evidence showed no infringement of the patent, and for other reasons.
This motion was taken under advisement with the case, and denied when the cause was decided for the plaintiff.
In arriving at its judgment, the court found the right of an officer- in the army or navy to take out a patent of the class in suit, citing as one of the two cases United States v. Burns, 12 Wall. 246, 20 L. Ed. 388, and further upheld the right of such a patentee to sue an officer of the government personally for infringement in making use of his patent in government work, citing with another case U. S. v. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171, and Crozier v. Fried Krupp Aktiengesellschaft, 224 U. S. 290, 32 S. Ct. 488, 56 L. Ed. 771.
We will first consider the refusal of the trial court to find the ownership of the patent or a shop right therein by the government, and its finding to the contrary, being assignments of error numbered 33, 34, and 35.
In Solomons v. United States, 137 U. S. 342, 11 S. Ct. 88, 34 L. Ed. 667, the chief of the Bureau of Engraving and Printing invented a self-canceling stamp which he thereafter patented, and assigned the patent to Solomons, who sued the government in the Court of Claims because of its use, and appealed from an adverse decision.
The Supreme Court, at page 346 of 137 U. S., 11 S. Ct. 88, 89, in affirming the Court of Claims, said: “An employee, performing all the duties assigned to him in his department of service, may exercise his inventive faculties in any direction he chooses, with the assurance that whatever invention he may thus eoneeive and perfect is his individual property. There is no difference between the government and any other employer in this respect. But this general rule is subject to these limitations: If one is employed to devise or perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after successfully accomplishing the work for which he was employed, plead title thereto as against his employer. That which he has been employed and paid to accomplish becomes, when accomplished, the property of his employer. Whatever rights as an individual he may have had in and to his inventive powers, and that which they are able to accomplish, he has sold in advance to his employer. So, also, when one is in the employ of another in a certain line of work, and devises an improved method or instrument for doing that work, and uses the property of his employer and services of other employees to develop and put in practicable form his invention, and explicitly assents to the use by his employer of such invention, a jury, or a court, trying the facts, is warranted in finding that he has so far recognized the obligations of service flowing from his employment and the benefits resulting from his use of the property, and the assistance of the co-employees, of his employer, as to have given to such employer an irrevocable license to use such invention.”
In the later ease of Gill v. United States, 160 U. S. 426, 16 S. Ct. 322, 40 L. Ed. 480, Gill, a machinist in a government arsenal, patented certain inventions he made while there, and sought to recover for their use by the government.
The Supreme Court, in affirming the decision of the Court of Claims against Gill, said at page 434 of 160 U. S., 16 S. Ct. 322, 325: “Now, whether the property of the government and the services of its employees be used in the experiments neeessary to develop the invention, or in the preparation of patterns and working drawings, and the construction of the completed machines, is of no importance. We do not care, in this connection, to dwell upon the niceties of the several definitions of the word 'develop’ as applied to an invention. The material fact is that in both this and the Solomons Case the patentee made use of the labor and property of the government in putting his invention into the form of an operative machine; and whether such employment was in the preliminary stage of elaborating and experimenting upon the original idea, putting that idea into definite shape by patterns or working drawings, or finally embodying it in a completed machine, is of no consequence. In neither case did the patentee risk anything but the loss of his personal exertions in conceiving the invention. In both cases there was a question whether machines made after his idea would be successful or not, and, if such machines had proven to be impracticable, the loss would have fallen upon the government.”
In Houghton v. United States (C. C. A.) 23 F.(2d) 386, the same rule was applied in the ease of a government chemist claiming on a patent for a fumigant invented while in the service.
Did the trial court correctly apply this law to the facts of this ease?
The plaintiff, after receiving education at the Naval Academy fitting him for a career of naval service, was graduated and commissioned in 1874.
The record here shows little of his activities until 1900, when he went for two years as inspector of ordnance at the Bliss Plant in Brooklyn, where he testifies that he inspected all torpedoes manufactured, with their assembly, with shop tests and running tests at Sag Harbor, thus acquiring as an officer in the naval service all knowledge of automobile torpedoes then known, which knowledge and experience he retained until he applied for the patent in suit.
This was his duty, and in its discharge he acquired his knowledge, and the experience thus acquired belonged to the nation, from which he received the compensation providr ed for officers of his rank.
He displayed inventive ingenuity during his career, which added to* his qualifications as an officer, and, having reached the rank of captain by 1910, was then ordered to the important billet of member of the General Board of the Navy and head of the Committee on War Plans, all of which means that his employment was not'manual but intellectual, and that all the powers of his mind, including his inventive ingenuity, if exercised upon means'and instruments of naval warfare, belonged to the nation as his employer.
He testified that he spent most of his time at that period in devising plans for recapturing the Philippine Islands in ease of their capture by an ememy, and that it occurred to him that such capture might be prevented by airplanes equipped to drop bombs or discharge torpedoes.
That was a war plan, and he claims its origin, but it was none the less in line of his employment and the result of the training and education which he owed to the government.
The application of his idea was difficult, and he gave it much thought, testifying in effect that it took him two years to solve the difficulties to his satisfaction.
The record is not clear as to just when he completed his invention as patented.
According to his testimony, as read to the court from a prepared statement, it was sometime in March, or before April 12,1912, when the application for patent was filed, and while a rear admiral in command of a. division of the Atlantic Fleet.
But in his letter of February 5, 1926, to the Judge Advocate General of the Navy, he wrote: “In fact, I invented the torpedo plane before I was a Rear Admiral, though I did not patent it for sometime afterwards.”
He had already testified he was a captain on the General Board when head of the Committee on War Plans.
And in his article “The Future of the Torpedo Plane” he wrote: “I did not apply for a patent on this scheme for a year or more. * * * ”
That would place the time of invention as prior to April 12, 1911, and the record shows he was head of the Committee on War Plans 1910-1911.
It was his duty as head of that committee to devise plans to protect the Philippines, and he said most of his time there was so spent, and much thought during that time given to the utilization of torpedo planes in that connection.
Now, if he spent that time and thought, while in the service of the government, in endeavoring to find a method and apparatus for adapting torpedoes to airplanes, and finally conceived a way of doing so, it follows that the invention became his employer’s, that is to say, the government’s.
We cannot agree with the trial court that, when a member of the General Board of the Navy and head of the Committee on War Plans spends his time and ingenuity in devising a method and apparatus for discharging torpedoes from airplanes as a part of a scheme of naval defense, he is entitled to withhold the device from the government.
Nor does the fact, if it be a fact, that some details were not perfected to his satisfaction until shortly after he was transferred to command of a fleet, alter the situation.
Furthermore, the great expense and labor involved in experiments by others to- ultimately adapt torpedoes for discharge from airplanes were borne by the government and its agents other than the plaintiff, whose invention when, and as, patented was plainly inoperative for the purpose intended.
Much of this work and experimentation was done at, and all after, the earnest and frequent solicitation of the plaintiff, who made no claim for compensation until the efforts of others were well on the way to whatever success has been attained by the patented device.
“A patentee is bound to deal fairly with the government, and, if he has a claim against it, to make such claim known openly and frankly, and not endeavor silently to raise up a demand in his favor by entrapping ifs officers to make use of his inventions.” Gill v. United States, 160 U. S. at page 437, 16 S. Ct. 322, 327, 40 L. Ed. 480.
If ownership and license of the patents of government employees are to be decided by the general rules of master and servant governing patent rights, as the Supreme Court holds in the Solomons Case, the rule .applies to naval officers with even greater reason than to civil employees such as the machinist in the Gill Case on his per diem pay. For naval officers are educated at the expense of the government; paid during their academic career; have life tenure of office thereafter; subsistence allowances in addition to salary; retirement pay in old age; and pensions to dependents after death.
In our opinion, application of the law, as laid down by the eases decided to the facts recited, establish an irrevocable license in the government to the use of plaintiff’s invention and patent, even if that patent were not, as we think it is, invalid for inoperativeness.
Several assignments of error make this claim.
In Fowler v. Dodge, 14 App. D. C. at page 482, this court, on a question of oper-ativeness, said: “it is not usual for the courts to disturb the conclusions of the Patent Office upon any such question as that without very cogent proof of error.”
But this record presents cogent proof of error.
For Admiral Fiske testified that when he-applied for this patent he had never seen a seaplane, and but two airplanes in exhibition flight, which were flimsy affairs and purely experimental.
The verdict formally find's as facts that at the date of the patent'no airplane was in existence capable of carrying the torpedo required, that no torpedo was known able to sustain the shock of dropping from an airplane at the minimum speed of flight, that improved torpedoes were required for such use, that years of work and experimentation subsequent to the patent were required to produce such torpedoes and to make the conception of launching torpedoes from airplanes practical, while all labor, material, and money required for such experimentation had been furnished by the United States.
Yet, at a time when airplanes were hardly capable of rising from the ground, Admiral Fiske presumes a plane capable of carrying and discharging a torpedo weighing a ton.
This plane was to swoop down from a “comparatively high elevation,” as rapidly and as vertically as possible to within 10 or 15 feet of the water; then, to start the internal mechanism of the torpedo by the forward movement of a lever such as the inventor says he had never seen; and then drop the torpedo into the water in a condition to strike its target 1500 yards away.
To the development of such a plane, the plaintiff has contributed nothing, yet by this judgment he is given damages against a brother officer based upon the total cost of 397 such planes alleged to have been used with torpedo dropping devices infringing his patent.
The plaintiff testified that he was aware of these difficulties, but “felt sure that airplanes would rapidly grow bigger and stronger.”
While in the meantime his patent was a pioneer patent entitled to be liberally construed.
But this invention “does not belong to that class of simple inventions which require no other proof of their practicability than the construction of a model.” O’Connell v. Schmidt, 27 App. D. C. 81.
For the plaintiff’s invention not only-required a plane then unknown to the world, and a torpedo equally unknown, but subsequent experiments demonstrated the uncertainty or failure of several details of his device and his method of operation.
The plaintiff provides for the security of his torpedo in its chocks by a bellyband which was later found to be impracticable, because, among other reasons, the launching by release as contemplated could not be successfully accomplished. He provides for starting the internal mechanisms of the torpedo by a forward movement of a lever, while the testimony showed, and the verdict found, that up to the time of trial below, in July 1929, seventeen years after his patent, no torpedo was known with a starting lever actuated in the forward direction.
He provides for starting the mechanisms of the torpedo before its release from the plane, but later experiments of others demonstrated the compelling wisdom, if not the necessity, of doing this after its release, by use of a lanyard instead of a lever.
In fact, the plaintiff testified that his invention “was a pure dream embodied in the descriptions and drawings,” and that he was amazed at the facility with which a patent was obtained for a thing so obvious.
We think his amazement was justified; but a dream, like an idea, is not an invention, _ and cannot be patented until embodied in a physical contrivance making it practically useful.
And- the useful contrivance cannot be patented, even if new, unless its novelty amounts to discovery.
Until the inventor has done this as a matter of reasonable legal certainty, and not as a matter of mere conjecture or prophetical possibility, he has given nothing to the public in return for the monopoly which he seeks by letters patent. Le Roy v. Tatham, 14 How. 156, 14 L. Ed. 367; Thompson v. Boisselier, 114 U. S. 11, 5 S. Ct. 1042, 29 L. Ed. 76; Clark Thread Co. v. Willimantic Co., 140 U. S. 489, 11 S. Ct. 846, 35 L. Ed. 521; Coffin v. Ogden, 18 Wall. (85 U. S.) 120, 21 L. Ed. 821; De Forest Radio Co. v. Gen. Electric Co., 51 S. Ct. 563, 75 L. Ed. 1339, decided May 25, 1931; Columbia Motor Car Co. v. Duerr & Co. (C. C. A.) 184 F. 893, 908; In re Mattullath, 46 App. D. C. 143; Wickers v. McKee, 29 App. D. C. 13; Gilman v. Hinson, 26 App. D. C. 415.
As we are of opinion that the patent issued was invalid, for-inoperativeness, and, in any event, that the United States was entitled to an irrevocable, but nonexclusive, license therein, the judgment is reversed, without costs, and the cause remanded for further proceedings.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer: |
songer_typeiss | B | 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.
SHELLABARGER v. COMMISSIONER OF INTERNAL REVENUE.
No. 4220.
Circuit Court of Appeals, Seventh Circuit.
Feb. 28, 1930.
Charles C. Le Porgee, of Chicago, Ill., for-petitioner.
John G. Remey, of Washington, D. C.,. for respondent.
Before ALS CHULEE, EVANS, and SPAEKS,' Circuit Judges.
ALSCHULEE, Circuit Judge.
Beyond mention in its finding of facts that respondent’s ground for such determination was that the payments to Georgia and the hank were in the nature of gifts, the Board’s opinion makes no mention of this, but seems to predicate its conclusion upon the ground that the contract did not assume to give Georgia and the bank any right to demand and receive from the trustees of the two trusts any part of the net income therefrom, but could demand it only from Maud after she had received it from the testamentary trustees; also, that under the terms of the contract Maud did not completely deprive herself of that part of the income payable under the contract to Georgia and the bank, or give Georgia or the bank absolute control of the payments to them; but that in certain contingencies the rights of Georgia and the bank,. under the contract, might terminate; and that Maud reserved some discretion in the making of certain payments by the bank to Georgia’s children.
The renunciation of Georgia’s right to contest the will was a lawful consideration for the contract, and the payments to her and the bank under the contract were in no sense gifts or payments in the nature of gifts. Page on Contracts, § 554.
The fact that in certain contingencies the contracted payments to Georgia and the bank might cease, and Maud might then be entitled to receive them for her own use, has no relevaney to the question here involved. This could happen only when conditions! specified in the contract came to pass. Until then the right of Georgia and the trustee bank to receive half of the net income was absolute. The contract left no option of revocation in Maud, and no authority to withhold at will from Georgia or the bank and to take unto herself any of the net income so payable to them.
Income taxes look to the period for which they are imposed, and operate upon income accrued and paid to the taxpayer as income to the taxpayer within that period. That in some subsequent tax year conditions might come into existence under which Maud would again have for her own use a greater part, or even the whole, of the net income from the testamentary trusts, is wholly beside the question in determining her taxable income for the year 1924. In that year it appears that not only were Georgia and the bank lawfully entitled under the contract to demand and receive to their respective uses the half of the net income from these trusts, but they actually did so then receive it.
The bare fact that the entire net income from the trusts was first paid to Maud does not of necessity determine the question. An examination of the trust provisions of the will reveals an excellent reason why it would be paid to her. In both of the trusts it was provided that the income was “payable to her (Maud) on her sole and separate receipt therefor.” This made it at least questionable whether the testamentary trustees were authorized in any event to make the payment to any one but Maud, or to give heed to any direction to pay to another any part of the net income; and this may serve to indicate why the contract omitted any direction to the trustees to pay the three-tenths and the one-fifth of the net income directly to Georgia and the bank; and it tends to dispel any inference that, under the terms of the contract, any power or control over the three-tenths and the one-fifth remained in Maud except to receive it and turn it over as in the contract specified.
The mere fact of Maud’s receiving it does not indicate that it was her taxable income. The statute (Act June 2,1924, e. 234, § 213[a], 43 Stat. 267) does not impose an income tax upon everything which is received by the taxpayer. Many items may be received which are not taxable income of the recipient. “Derive” — not “receive”— is the word the statute employs.
Under the contract, for the year in question Maud was but an instrumentality or agency for receiving and conveying to Georgia and the bank their contracted proportion of the net income. Maud could not convey the fund itself since she had no title to it. She did not direct the testamentary trustees to pay the half to Georgia and the bank, since the terms of the trusts seemingly required the payments to be made to Maud herself. She did all she reasonably could to invest Georgia and the bank with full right and title to the half.
As was said in Barnes v. Alexander, 232 U. S. 117, 34 S. Ct. 276, 277, 58 L. Ed. 530: “They therefore used words of contract rather than of conveyance; but the important thing is not whether they used the present or the future tense but the scope of the- contract. In this case it aimed only at the fund.”
So in the case before us it is quite immaterial whether there was employed lan gnage purporting to convey a half interest in the net income, or agreeing to pay over the half as it was received — the result is the same.
As the fund was paid over to Maud, the interest of Georgia and the bank immediately attached, and Maud became in equity a trustee for the benefit of Georgia and the bank. Barnes v. Alexander, 232 U. S. 117, 34 S. Ct. 276, 58 L. Ed. 530. And where the beneficiary of a trust assigns an interest in the income therefrom, the grantee who received the income pursuant to the agreement, and not the grantor, is liable for the federal income tax thereon. Young v. Gnichtel (D. C.) 28 F.(2d) 789; O’Malley-Keyes v. Eaton (D. C.) 24 F.(2d) 436. In any event, the valid agreement to pay as received half of the income of the trusts conferred an equitable lien on the fund when it came into existence. Ingersoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208.
While the whole ofl the net income from the trusts was physically received by Maud, the half did not accrue to her as her income, but on the instant of receiving it she held it in trust for Georgia and the bank, and it was in good faith paid over as received, pursuant to her valid and binding contract.
We think the Board of Tax Appeals erred in sustaining respondent’s redetermination of petitioner’s 1924 tax, and the order of the Board approving the redetermination of the tax is reversed, and the cause is remanded with direction for further proceedings in harmony with these views.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_respond1_1_2 | D | 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)". 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".
In re HARTMAN PAVING, INC., South Berkeley Lumber & Supply, Inc., Debtors-In-Possession. Thomas G. PYNE, Appellant, v. HARTMAN PAVING, INC., Appellee.
No. 83-1443.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 1, 1983.
Decided Oct. 2, 1984.
Rehearing Denied Nov. 15, 1984.
John C. Skinner, Jr., Charles Town, W. Va. (Nichols and Skinner, L.C., Charles Town, W. Va., on brief), for appellant.
Michael L. Bray, Clarksburg, W. Va. (Steptoe & Johnson, Clarksburg, W. Va., on brief), for appellee.
Before WINTER, Chief Judge, and PHILLIPS and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
Thomas G. Pyne appeals from the district court’s order affirming the bankruptcy court’s denial of relief from the automatic stay imposed under 11 U.S.C. § 362. We reverse.
I.
In August of 1979 Pyne conveyed real estate and several mobile homes by deed to the Hartman Paving Corporation [Hartman] in exchange for a promissory note. The deed was recorded in the office of the Clerk of the County Commission of Berkeley County, West Virginia. The promissory note required Hartman to pay Pyne the principal sum of $88,000.00 at the rate of 10% interest in 240 monthly installments. To secure payment for the note, Hartman executed and delivered a deed of trust conveying the real estate and mobile homes to Michael B. Keller, an appointed trustee. The deed was signed by Thomas Hartman, President of Hartman Paving Corporation, and notarized by Keller who was then a Notary Public for Berkeley County, West Virginia.
On August 19, 1981, Hartman filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Northern District of West Virginia. In November of the same year Pyne filed a proof of claim with the bankruptcy court. Pyne alleged that he was the holder of a claim secured by a deed of trust lien on real estate. According to Pyne, between November 1981 and March of the following year Hartman refused to make monthly payments on the note and continued to remove shale from the secured property. Accordingly, in March of 1982 Pyne filed a complaint in bankruptcy court seeking (1) an Order of Abandonment releasing the land; (2) an order lifting the automatic stay; and (3) an order enjoining Hartman from using the real estate as a shale pit.
Hartman responded by arguing that the deed of trust was void as a matter of law because Keller had acted as both trustee and notary public. If the deed of trust were void, as Hartman contended, Pyne would be an unsecured creditor of Hartman Paving, Inc. and would not be entitled to the relief sought.
After Hartman filed its answer, Pyne moved the court to certify to the Supreme Court of Appeals of West Virginia the question “Under West Virginia law, is the acknowledgement of a Trust Deed by the Grantor before the Trustee, with the Trustee acting as a Notary, void?” On April 23, 1982, the Bankruptcy Court held the deed of trust void and therefore concluded that Pyne’s claim was unsecured. The court denied Pyne’s request to lift the automatic stay, and denied the motion to certify the question. Pyne then appealed to the District Court for the Northern District of West Virginia.
While this appeal was pending, Pyne filed a second complaint in the bankruptcy court seeking a modification of the automatic stay to allow the filing of a declaratory judgment action in the Circuit Court of Berkeley County, West Virginia. The stated purpose of the declaratory judgment action was to determine the legal effect under West Virginia law of a trustee serving as notary. The bankruptcy court dismissed the complaint on the ground that it lacked jurisdiction while the first complaint was on appeal.
Pyne then filed a motion in the district court to remand the initial complaint to the bankruptcy court. The.district court denied the motion and affirmed the initial decision of the bankruptcy court.
II.
It is well established under West Virginia law that a deed of trust acknowledged by the grantor before a trustee, acting as a notary, is valid as between the parties to the instrument “or those purchasing with actual notice,” but invalid as against all judgments and all subsequent bona fide purchasers for value. Tavenner v. Barrett, 21 W.Va. 656 (1883); Central Trust Co. v. Cook, 111 W.Va. 637, 163 S.E. 60 (1932). Before Hartman filed for bankruptcy, therefore, the deed was valid between Hartman and Pyne because both were parties to the instrument and had actual notice of the execution and conveyance of the deed.
Under § 1107(a) of the Bankruptcy Reform Act, however, a debtor becomes a “debtor-in-possession” upon filing for bankruptcy and thereby gains “all the rights and powers of a trustee serving in a case under said chapter.” 11 U.S.C. § 1107(a). Section 544(a) of the Bankruptcy Act provides, in turn, that the trustee “shall have ... the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor” that is voidable by a judicial lien creditor, an execution lien creditor, or a subsequent bona fide purchaser for value. 11 U.S.C. § 544(a). Under § 544(b), the applicable rights and powers of the trustee are those provided by local state law. See Martin v. Crocker-Citizens National Bank, 349 F.2d 580 (9th Cir.1965).
When Hartman filed for bankruptcy, therefore, he became a debtor-in-possession under § 1107(a) and was entitled to avoid any obligations that would have been voidable by a subsequent bona fide purchaser for value or lien creditor under West Virginia law. Tavenner —the controlling West Virginia precedent — states in part that a deed acknowledged by a trustee acting as a notary will not be valid against subsequent bona fide purchasers for value. Thus Hartman argued below, and now contends on appeal, that as debtor-in-possession he was entitled under § 544(a) to avoid the deed of trust and treat Pyne as an unsecured creditor.
We are not persuaded by Hartman’s argument because it ignores a critical part of the Tavenner holding. Tavenner stands for the proposition that an improperly acknowledged deed is only void against subsequent bona fide purchasers for value who take without actual notice:
[A] conveyance though improperly acknowledged is good between the parties or those purchasing with actual notice. The court thus reasons:
“The objection to the trustee taking such acknowledgement is analogous to the one forbidding a judge to pass upon his own case. Though this act may not be strictly judicial, it is of a judicial nature and requires disinterested fidelity. We know that in practice such a trustee is always selected by the beneficiary; he is controlled by the beneficiary in fixing the time of sale, and its proceeds come into his hands. There is such an interest, that as to the requisite of the deed itself, it should be placed upon a level with other parties, and be incapacitated from holding any official relation to its execution. The want of a proper acknowl-edgement does not however invalidate the deed (of one sui juris) but only goes to the effect of the record. If not acknowledged or proved, its record is not provided for by law, and the fact that it may be copied upon the book of records will not operate as constructive notice to subsequent purchaser. Dussaume v. Burnett, 5 Iowa 95; Lessee of Shultz v. Moore, 1 McLean 520; Barney v. Sutton, 2 Watts 31; Hastings v. Vaughan, 5 Cal. 315; Price v. McDonald, 2 Md. 403; Johns v. Scott, 5 Md. 81. The deed however is good between the parties, (being sui juris) and should prevail against subsequent deeds to those who had actual notice of its existence. Dussaume v. Burnett, 5 Iowa 95; Caldwell v. Head, 17 Mo. 561; Cooley v. Rankin, 11 Mo. 647.”
Tavenner at 688 (emphasis added). This rule makes considerable practical sense, for one who purchases with actual notice, even if a subsequent purchaser, is not subject to the same dangers of fraud as a subsequent purchaser who is dependent solely on record notice. To treat both the same simply because each is a subsequent purchaser would elevate form over substance.
Hartman was a party to the transaction and consequently had actual notice of the conveyance. Thus although Hartman is entitled to claim the powers of a subsequent purchaser for value under § 544(a), those powers, as properly defined under local law, do not permit him to void the deed because — simply stated — Hartman is not the type of subsequent purchaser that Tavenner was designed to protect.
III.
For the foregoing reasons, Pyne’s claims for relief are granted.
REVERSED.
. Because the court found that Pyne was an unsecured creditor and could not reach the land, it also denied Pyne’s motion for injunctive relief.
. Pyne’s request to certify this issue to the West Virginia Supreme Court of Appeals was properly denied. Under the Uniform Certification of Questions of Law Act, which West Virginia has adopted, the certifying court must conclude that there is no controlling precedent before ordering certification. W.Va.Code § 51-1A-1. Ta-venner and Central Trust are directly on point.
. Section 1107(a) states in pertinent part that:
(a) Subject to any limitations on a trustee under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, shall perform all the functions and duties, except the duties specified in sections 1106(a)(2)(3) and (4) of this title, of a trustee serving in a case under this chapter.
. Section 544(a) states in pertinent part that:
(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— ******
(3) a bona fide purchaser of real property from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser at the time of the commencement of the case, whether or not such a purchaser exists.
. The district court stated in its opinion that under Tavenner "a deed of trust acknowledged by the grantor before a trustee, acting as a notary, is valid as between the parties to the instrument and all who have actual notice, but invalid as against all judgments and all bona fide purchasers for value.” (J.A. at 30).
For the reasons discussed above, we believe this reading of Tavenner is incorrect. We note in addition, however, that once the district court concluded that a valid deed requires a party be both a party to the instrument and have actual notice, it followed necessarily that an improperly acknowledged deed must be invalid against all subsequent purchasers. This reasoning produces a result here that is incongruous with the rationale of Tavenner. Tavenner was concerned primarily with protecting against danger of fraud. Because Hartman had actual notice, he cannot now claim that the improper ac-knowledgement caused him injury. To read West Virginia law as the district court did, therefore, permits Hartman to turn a legal "fiction” found in § 544(a) to unfair personal gain. In short, the lower court’s interpretation of Ta-venner turns West Virginia law on its head.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_district | F | 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".
CHILDERS OIL COMPANY, INCORPORATED, a corporation; James E. Childers, Jr.; Erma L. Childers, doing business as Childers Short Stop, Plaintiffs-Appellants, v. EXXON CORPORATION, a corporation, Defendant-Appellee.
No. 91-2598.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 4, 1991.
Decided April 3, 1992.
Carl Lee Fletcher, Jr., Spilman, Thomas, Battle & Klostermeyer, Charleston, W.Va., argued (David A. Faber, R. Scott Long, on brief), for plaintiffs-appellants.
William R. O’Brien, Howrey & Simon, Washington, D.C., argued (Darren B. Bern-hard, Gregory J. Commins, Jr., Howrey & Simon, Washington, D.C., Thomas B. Bennett, Bowles, Rice, McDavid, Graff & Love, Charleston, W.Va., William R. Hurt, Exxon Co., U.S.A., Houston, Tex., on brief), for defendant-appellee.
Before HALL, NIEMEYER, and LUTTIG, Circuit Judges.
OPINION
K.K. HALL, Circuit Judge:
Childers Oil Company and James and Erma Childers d/b/a Short Stop appeal the district court’s grant of summary judgment for defendant Exxon Corporation in Childers’ action for breach of contract, tor-tious interference with prospective business relations, and fraud, and on Exxon’s counterclaims for trademark infringement, breach of contract, and recovery on a promissory note. Through a combination of waiver, the parol evidence rule, and the statute of limitations, the appellants are unable to recover. In addition, they offer no colorable defenses to Exxon’s counterclaims. Accordingly, the judgment is affirmed.
I.
The appellants are two businesses, both wholly owned by James and Erma Child-ers — Childers Oil Co., Inc., and Short Stop, a partnership. Childers Oil was formed in 1975 to operate a bulk fuel distributorship in Bluefield, West Virginia. Childers Oil initially sold Amoco products. Shortly after it began operations, Childers Oil built a new plant near Princeton, West Virginia, at the junction of two major highways — Interstate 77 and U.S. Route 460.
In January 1980, Childers Oil built a retail service station adjacent to its Princeton plant. It leased the station to the Short Stop partnership. The competition-less station prospered. In early 1982, however, Amoco announced its withdrawal from West Virginia. Mr. Childers learned of-Amoco’s action in his Sunday newspaper.
If Mr. Childers worried of not having a supplier, his fears were quickly erased. The very next day, William Lucas, a distributorship salesman for Exxon, telephoned Mr. Childers to express Exxon’s interest in replacing Amoco as Childers Oil’s supplier. At the time, Exxon had no retail outlets on Interstate 77 from Charleston, West Virginia, to Wytheville, Virginia — a stretch of over 120 miles — and it was interested in filling this lacuna in its competitive ubiquity.
Mr. and Mrs. Childers had one serious concern about Exxon. Exxon owned a tract of land 400 yards from Short Stop, and the Childers had heard rumors that Exxon planned to build a companyowned station there. The Childers did not want to become an Exxon distributor and then be forced to compete with another retail Exxon outlet.
A few days after the initial telephone call, Lucas came to the Childers Oil plant to discuss Exxon’s proposal, Mr. Childers asked Lucas about Exxon’s plans for its tract of land. According to Mr. Childers, Lucas promised that Exxon would not build a retail station on the tract if Childers Oil would sign an Exxon Distributor Agreement.
A few weeks passed. Then Lucas and his boss, Lowe Lunsford, paid Mr. Childers another visit. Again, Mr. Childers brought up his concern about Exxon’s plans for its land. Lunsford assured him that the property was in Exxon’s inactive “land bank,” and Exxon had no plans to construct a station there.
Through the summer of 1982, Mr. Child-ers continued negotiations with Exxon. Both Lucas and Lunsford repeated their assurances that Exxon would not compete with Short Stop by building on its “land bank” tract.
On September 14, 1982, Childers Oil signed Exxon’s standard Distributor Agreement. The agreement contains a boilerplate integration clause:
25. ENTIRE AGREEMENT: This writing is intended by the parties to be the final, complete and exclusive statement of their agreement about the matters covered herein. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES AFFECTING IT.
Mr. Childers asked that Exxon’s promise not to compete be included in the agreement, but was told that no changes could be made in the form. He signed anyway. The agreement was to expire on March 31, 1984.
Within a few months, Mr. and Mrs. Child-ers began hearing new rumors that Exxon was planning to develop its property. Mr. Childers called Lunsford each time he heard such a rumor. At first, Lunsford said that he had heard nothing, but he later expressly stated that a company-owned station would not be built.
Sometime in late 1983, a contractor showed up at Childers Oil and said he was there for a pre-bid conference on the “new station.” Mr. Childers told the contractor that he had no intention of building a new station. He immediately called Lunsford, who said that Exxon was “just getting some cost figures together” and was not actually planning to build.
Nonetheless, before the end of 1983, Exxon began construction of a station to compete with Short Stop. Mr. Childers called Lunsford at the first sign of construction. Lunsford said, “Jim, I am sorry, I didn’t have the clout I thought I had, I couldn’t prevent this from happening.”
By June 1984, Exxon’s retail service station was open for business. Short Stop’s business immediately and sharply declined. On June 10, 1984, Mr. Childers appeared in front of the Small Business Subcommittee of the Joint Committee of Government and Finance of the West Virginia Legislature to complain of Exxon’s conduct. To contravene Mr. Childers’ complaint, Exxon sent a written response, with a cover letter signed by Lunsford, to members of the subcommittee on September 14,1984. In it, Exxon asserted that it had always planned to build the station, and no one at Exxon had told Childers otherwise. Exxon’s response was not sent to Mr. Childers, and he did not inquire about the subcommittee’s handling of his complaint. In September 1988, at Mr. Childers' deposition, he first learned of the existence of this document.
If they desired relief through litigation, 1984 was the most apt moment for the Childers to have filed suit against Exxon. Instead, they took fateful steps toward financial and litigation ruin. In early 1984, with construction of the company station going on before their eyes, they signed a second distributorship agreement, substantively identical to and expressly superseding the first. This new agreement extended the Exxon franchise for three years. The Childers spent $700,000, most of it borrowed, turning Short Stop into an extravagant traveler’s mecca. The new and improved Short Stop included an ice cream store, convenience store, delicatessen, separate restroom building, and a large increase in gasoline capacity.
The revenue of Short Stop could not keep up with the increased debt burden. In January 1986, Childers Oil’s account with Exxon became delinquent (over thirty days late) in an amount exceeding $100,000. The parties agreed on a payment plan under which Childers Oil would pay the two oldest outstanding invoices each time it picked up a load of gasoline from Exxon. This repayment scheme did not work, however, because Childers Oil began purchasing gasoline from Pennzoil instead of Exxon, and thus avoided the triggering of two-for-one payments. Exxon soon exercised its contractual right to demand payment by cashier’s check.
Things got even worse when Exxon learned that Childers Oil had sold Pennzoil gas under Exxon’s trademark. On April 23, 1986, Exxon exercised its right under the Petroleum Marketing Practices Act to terminate the franchise, effective July 24, 1986, because of the misbranding. The appellants admit the misbranding and the lawfulness of the franchise termination.
During the three-month window between notice and the effective date of the termination, Mr. and Mrs. Childers tried to sell Childers Oil to H.C. Lewis, an Exxon distributor in Welch, West Virginia. The Childers and Lewis agreed that Lewis would purchase Childers Oil and sell gas to Short Stop, which the Childers would continue to own. The agreement, however, was contingent on Exxon’s increasing Lewis’ allotment so that he would have enough gas to supply Short Stop. Because it had no more wish to entrust its trademark to the Childers indirectly as directly, Exxon refused to increase Lewis’ allotment, and the proposed deal collapsed.
In October 1986, two months after termination of the franchise, the Childers still owed Exxon $224,168.27. They signed a promissory note providing for monthly payments and interest. They have made only small payments, and do not dispute the amount that they owe on the note.
On August 10, 1987, the Childers filed this suit against Exxon in district court. Jurisdiction rests on diversity of citizenship. They amended the complaint twice, the last time on March 24, 1989. The final complaint pled three claims: (1) breach of contract, (2) tortious interference with plaintiffs’ prospective business relationship with Lewis, and (3) fraud. The fraud claim did not appear in earlier versions of the complaint.
Exxon counterclaimed for breach of the distributorship agreement, for trademark infringement, and to recover on the promissory note. At the conclusion of discovery, on September 15, 1989, Exxon moved for summary judgment on all claims and counterclaims. On June 27, 1991, the district court granted summary judgment for Exxon.
Plaintiffs appeal.
II.
The substantive law of West Virginia applies to this diversity action. A concept central to the contract issues we must address — the parol evidence rule — is not, as its name may suggest, a procedural rule of evidence, but is rather a substantive component of West Virginia’s law of contracts. United States v. Bethlehem Steel Co., 215 F.Supp. 62, 68 n. 12 (D.Md.1962), aff'd, 323 F.2d 655 (4th Cir.1963); Jack H. Brown & Co., Inc. v. Toys “R” Us, Inc., 906 F.2d 169, 173 (5th Cir.1990); see Mohr v. Metro East Manufacturing Co., 711 F.2d 69, 72 (7th Cir.1983).
The district court held that the parol evidence rule barred use of Exxon’s oral promises to vary the terms of the written distributorship agreement. See generally, Kanawha Banking and Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225, 232-233 (1947); Cardinal State Bank v. Crook, 184 W.Va. 152, 399 S.E.2d 863, 866-867 (1990). Appellants proffer various exceptions to the rule, but none of them quite fit.
A.
Fraudulent inducement is an exception to the parol evidence rule, because such evidence does not “alter or vary” the terms of the contract; instead, a party may avoid the contract altogether (through rescission) by showing that it was fraudulently procured. Central Trust Co. v. Virginia Trust Co., 120 W.Va. 23, 197 S.E. 12, 16 (1938); Foremost Guaranty Cory. v. Meritor Savings Bank, 910 F.2d 118, 123 (4th Cir.1990) (applying Virginia law). The Childers do not seek rescission of the distributorship agreement; they seek damages for breach of the alleged parol promise.
B.
Appellants’ argument that the no-competition promise was a collateral contract is unavailing as well. They do not identify the separate consideration for the collateral promise. The subject matter of the supposed collateral contract is very closely related to the distributorship agreement, and indeed, a covenant not to compete would naturally be a part of an integrated distributorship agreement. This close connection precludes a finding of a collateral contract. Jones v. Kessler, 98 W.Va. 1, 126 S.E. 344, 349 (1925). Finally, the agreement’s integration clause emphasizes that no “ORAL UNDERSTANDINGS ... AFFECT[ ] IT.” The district court rightly rejected the collateral contract argument.
C.
In direct contradiction to the collateral contract theory, appellants posit that the oral promise was additional consideration for the distributorship agreement. Where consideration is a mere recital (e.g. “one dollar and other good and valuable consideration”), parol evidence may establish what the actual consideration was. However, West Virginia law draws a line at enforcement of parol promises as “additional consideration.” Kanawha Banking & Trust, 46 S.E.2d at 233-234. In a sense, every promise made in a contract is in “consideration” of the other party’s promises, and the “additional consideration” exception would swallow the rule if it were applied as appellants suggest.
D.
Finally, with full knowledge that Exxon had broken its promise not to compete, Childers entered into a new distribution agreement. This second agreement specifically states:
28. PRIOR AGREEMENT: This Agreement cancels and supersedes any prior agreements between the parties thereto, covering the purchase and sale of product(s) covered by this Agreement.
The parol term the Childers seek to enforce was, if anything, a part of the original distributorship agreement. Signing a new agreement that “cancels and supersedes” the former, with knowledge of a breach of the old agreement, is a clear waiver of that breach.
In sum, the Childers have no tenable breach of contract claim, and the summary judgment on that claim was proper.
III.
The district court held that Exxon had an absolute right to refuse to increase Lewis’ allotment, and its refusal can never be “tortious interference” with the proposed Lewis-Childers transaction. Restatement (Second) of Torts § 766, comment b; Torbett v. Wheeling Dollar Savings & Trust Co., 173 W.Va. 210, 314 S.E.2d 166, 171-173 (1983) (relying on Restatement definition).
We agree with the district court, for the reason it gave and more. Tortious interference claims lie only against a party that is a stranger to the relationship. Torbett, 314 S.E.2d at 173. Exxon would have been the supplier of the fuel that was the subject of the proposed transaction, it would have had to license the use of its marks, and it would have derived profits from the sale of the product. Finally, even if Exxon were a stranger to the deal, and had some legal duty to supply the fuel, we think it was entitled as a matter of law to refuse to entrust its product to a person who had admitted prior misuse of its trademark. See Humboldt Oil Co. v. Exxon Co., USA, 823 F.2d 373, 375 (9th Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1575, 99 L.Ed.2d 890 (1988).
IV.
The West Virginia statute of limitations for claims of fraud is two years. W.Va. Code § 55-2-12. The parties agree that if the statute of limitations began to run when the Childers learned that Exxon was going to build a company-owned station, the action is barred.
A.
Appellants, however, argue that they did not find out that Exxon knew its promise was false when made until September 1988, when, at his deposition, Mr. Child-ers was shown Exxon’s 1984 letter to the state legislative subcommittee. Breaking a promise, without more, is only a breach of contract. Making a promise that is not intended to be kept may be a fraud, if the other elements of that tort are present. Janssen v. Carolina Lumber Co., 137 W.Va. 561, 73 S.E.2d 12, 17 (1952); Dyke v. Alleman, 130 W.Va. 519, 44 S.E.2d 587 (1947). Consequently, the Childers argue that they did not “discover” their fraud cause of action until Mr. Childers’ deposition, and the statute of limitations did not begin to run until then.
Appellants assert that the possibility of sanctions under Fed.R.Civ.Pr. 11 is a strong deterrent to pleading fraud claims on bare suspicion that a broken promise was never intended to be kept. Appellees counter that Rule 9(b) permits intent to be pled generally, and, if fraud claims do not accrue until a smoking gun is in the plaintiff's hands, few claims will accrue until after a suit is filed and information in the defendant’s possession is discovered. This debate, whether knowledge of so-called “legal” causation is required to begin the running of a statute of limitations, is not new to jurisprudence.
Two recent West Virginia cases provide guidance. In Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987), the plaintiff had been injured by a bursting air tank. He sued a defendant, who then filed a third-party claim against the manufacturer of the tank. More than two years after the accident, the plaintiff attempted to assert a claim directly against the manufacturer. He asserted that the statute of limitations did not begin to run until he discovered that the tank was defective. The West Virginia court rejected his argument, 358 S.E.2d at 813-814:
In products liability cases, the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product had a causal relation to his injury.
* * * * * *
Hickman asks us to take this one step further. He suggests that we add another requirement, i.e., that the product was defective as a result of the conduct of its manufacturer. Indeed, this is a big requirement, because such knowledge is often not known with legal certainty until after the jury returns its verdict. At the very least, this knowledge would be very difficult to obtain, except during the discovery phase of trial. Thus, we would have a situation where the statute of limitations would almost never accrue until after the suit was filed. This would almost abrogate the statute of limitations in products liability claims. We cannot accept such a holding.
Hickman was followed by Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990), which imported its concepts into a fraud case. The court held, 400 S.E.2d at 565:
[W]e conclude that where a cause of action is based on tort or on a claim of fraud, the statute of limitations does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact to be answered by the jury.
The court identifies the “injury” as the thing to be discovered, not that the defendant’s state of mind or breach of duty may legally entitle the plaintiff to recover damages. The majority rule is the same. United States v. Kubrick, 444 U.S. 111, 118-125, 100 S.Ct. 352, 357-360, 62 L.Ed.2d 259 (1979); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1469 (11th Cir.1986); Berkley v. American Cyanamid Co., 799 F.2d 995, 999 (5th Cir.1986).
The “discovery rule” tolls a statute of limitations until the plaintiff has, or ought to have, answers to two questions: Am I injured? Who injured me? Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. At that point, the plaintiff has enough information to begin investigating his claims. Phillips, 799 F.2d at 1469 (fraud cause of action accrues “when the plaintiff should have discovered facts that would provoke a person of ordinary prudence to inquiry”); Berkley, 799 F.2d at 999 (fraud cause of action accrues when plaintiff knows of “falsity of defendant’s statements and their relationship to the claimed injury”). He may not know enough to win a verdict or even file a complaint on that first day, but that is why the law gives him a reasonable limitations period to investigate. The appellants had sufficient knowledge to be put on a duty to inquire when Exxon built its company station. Lest the discovery rule abrogate West Virginia’s fraud statute of limitations, we hold that the fraud claim is barred.
B.
Appellants seize the Stemple court’s comment that the point in time that a plaintiff discovers enough to start the clock running is a question of fact to be resolved by a jury. Appellants argue that the district court should have let a jury decide when the statute began to run.
We do not read Stemple to require submission of a statute of limitations defense on undisputed facts to a jury. Stemple was a pair of homeowners’ appeal of a summary judgment entered against them in their suit against the prior owners for, among other things, fraudulently concealing severe termite damage to the structure. As we described above, the court identified the termite damage, and not the defendants’ state of mind, as the thing to be discovered. 400 S.E.2d at 565. The court then surveyed the evidence in the case, which consisted of a series of events, each one of which would tend to cause more alarm in the plaintiffs. Inasmuch as application of the statute of limitations required identifying one of these discoveries as the proverbial straw that broke the camel’s back, the court concluded, in reversing the summary judgment (400 S.E.2d at 566, emphasis added):
Clearly, reasonable persons could draw different conclusions from these facts.... Because there is a material question of fact with regard to when the plaintiffs’ right of action accrued so as to commence the running of the statute of limitations, the matter was clearly a question for the jury.
In other words, if resolution of a statute of limitations defense presents a genuine question of material fact, a jury should resolve it. If not, a statute of limitations may be applied as a matter of law. Here, if Childers’ knowledge of Exxon’s state of mind were a prerequisite to the running of the statute, a jury might very well have to resolve whether Childers should have, with reasonable diligence, discovered the 1984 report to the legislative subcommittee sooner. However, because knowledge of the injury and the injurer is enough, and appellants admittedly had both more than two years before suit, there is no material issue of fact for a jury to resolve. Exxon is entitled to the benefit of its statute of limitations defense as a matter of law.
The judgment of the district court is affirmed.
AFFIRMED.
. This opinion will refer to the appellants collectively as "Childers,” except where the context indicates otherwise.
. Exxon denies that this oral promise was made, but concedes that disputed issues of fact must be resolved in appellants’ favor for purposes of Exxon's motion for summary judgment. Our recital of facts applies this rule, and we make no attempt to identify every fact that Exxon might controvert if the case were tried.
. 15 U.S.C. §§ 2801-2841.
. Exxon also argues that if the promise not to compete were a freestanding contract independent of the distributorship agreement, it would be unenforceable under the Statute of Frauds, because any contract for a term of more than one year must be in writing. W.Va.Code, § 55-1 — 1(f) (1981 & Supp.1991). Exxon did not as-serf this defense below, however, and it was not considered by the district court. Because adequate alternate grounds for affirmance are present, we need not decide whether Exxon may interpose a statute of frauds defense for the first time on appeal.
. Mr. Childers admitted at his deposition that he knew Exxon had broken its promise, and that he felt he had been lied to, when construction of the station began.
. Kubrick was cited by the West Virginia court in a medical malpractice case, Harrison v. Seltzer, 165 W.Va. 366, 268 S.E.2d 312, 315 n. 2 (1980), where the court stated in dicta the rule it was later to explicitly adopt in Hickman:
[W]here the adverse results of medical treatment are so extraordinary that the patient is immediately aware that something went wrong, ... the statute of limitations will begin to run once the extraordinary result is known to the plaintiff even though he may not be aware of the precise act of malpractice.
Harrison, 268 S.E.2d at 315. West Virginia’s medical malpractice/discovery rule jurisprudence is disproportionately replete with cases involving foreign objects left within a patient’s body during surgery. Hill v. Clarke, 161 W.Va. 258, 241 S.E.2d 572 (1978); Morgan v. Grace Hospital, 149 W.Va. 783, 144 S.E.2d 156 (1965); Gray v. Wright, 142 W.Va. 490, 96 S.E.2d 671 (1957), overruled in part, Morgan, 144 S.E.2d at 161 (fraudulent concealment of object's presence by physician not required for discovery rule tolling); Baker v. Hendrix, 126 W.Va. 37, 27 S.E.2d 275 (1943). Inasmuch as discovery of such an object not only identifies the source of the injury, but also virtually establishes malpractice res ipsa loquitur, the Kubrick issue did not arise in those cases.
. Without citation to authority, appellants assert that Exxon’s counterclaim on the promissory note should have been held in abeyance pending resolution of appellants’ claims "by a jury.” Of course, the district court had disposed of appellants’ claims on summary judgment when it ruled in Exxon’s favor on the note, and the premise of their argument is rendered nugatory by our affirmance. Moreover, the Childers proffer no defense to collection of the note.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_counsel2 | E | 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
UNITED STATES of America, Plaintiff-Appellee, v. Frank A. WYSS, Defendant-Appellant.
No. 11674.
United States Court of Appeals Seventh Circuit.
Jan. 11, 1957.
C. A. Lincoln, Fort Wayne, Ind., John J. Naughton, William C. Wines, Chicago, 111., for appellant.
Jack C. Brown, U. S. Atty., Don A. Tabbert, Asst. U. S. Atty., Charles K. Rice, Asst. Atty. Gen., Stephen Leonard, Asst. U. S. Atty., Indianapolis, Ind., for appellee.
Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.
FINNEGAN, Circuit Judge.
Following in the wake of Commissioner of Internal Revenue v. Wilcox, 1946, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752, an occasional taxpayer has firmly insisted upon being recognized and classed as a self-made embezzler hoping to avoid the economic impact, and penal provisions, of the Internal Revenue Code by insulating against the majority views reported in Rutkin v. United States, 1952, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833. This case is faithful to that pattern. Consequently we are again treating with the elusive and restless concept of income, for tax purposes, which has plagued courts since Eisner v. Macomber, 1920, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521.
Convicted, after a comparatively lengthy bench trial, of violating 26 U.S. C. § 145(b) through omissions of sums of money from his joint tax return for the calendar years 1948 and 1949, Wyss contends here that the amounts admittedly received and eicluded by him were derived from two sources: (1) funds he “embezzled” and (2) “gifts” received by him from a long-standing friend for leads defendant supplied to prospective purchasers of soda fountain equipment. That these moneys were simply not in come, illegal or otherwise, is the pith of Wyss’ attack on the judgment appealed.
By his briefing counsel for Wyss emphasizes that all certain evidence received below:
“ * * * tended to show is that the defendant received about $20,000 for having procured contracts with the City of Fort Wayne, treated the money as his own by investing it and keeping the returns on the investment, and failed to report or pay a tax upon any part of these receipts.
“The defendant conceded in his Original Brief that such was the import of the Government’s evidence, did not challenge its sufficiency to support a finding was true if there had been a finding which there was not, that the defendant did receive, exploit for his own use, and fail to report or pay a tax upon monies given him for procuring public contracts * * *. Defendant raises no question in this court as to his intent.
“He intended to and did exercise personal dominion over these funds for his own benefit.” (Defendant’s reply brief, p. 2. Italics In the original material.)
But to dispell the impact of that concession, and the state of the record as we find it from our canvass, the defendant urges on us that the funds were not in fact or in law his regardless of his subjective attitude toward them. He contends that if the funds were “kickbacks” they belong to the City of Fort Wayne or, in the alternative, if they were misappropriated by him they were embezzled. Both record and briefs for the parties exhibited the undisputed fact Wyss received the moneys in question. There is evidence of Wyss’ political activities on behalf of Henry E. Branning who, during 1947, was a candidate for, and ultimately elected to, the office of Mayor for Fort Wayne. Defendant was treasurer of “The Branning for Mayor Club,” and Wyss now points to contributions received, in that capacity, as the source from which he purchased securities for personal investment, reporting incidentally, dividends received therefrom on his tax return. But on the other hand evidence adduced by the Government tends to show these receipts were “kickbacks” for Wyss’ procurement of city coal contracts, lumber and insurance. Detailing all the evidence is unnecessary in this opinion for it is a tragic situation where the government prosecuted on the theory of unreported bribes with the defendant denying he was bribed but claiming he embezzled. From that thesis Wyss contends that if such funds were “kickbacks” then they constituted money which under the Wilcox case were nontaxable because he was supposed to return or repay them — indeed, he argues the Indiana law-enforcing officials have a positive duty to recover political “kickbacks.” Rule 23(c), Federal Rules of Criminal Procedure, 18 U.S.C. was not invoked by defendant. United States v. Owen, 7 Cir., 1956, 231 F.2d 831, 833. By his failure to take advantage of that Rule, defendant left uncrystallized questions of fact to which the law would be applied. The inherent weakness in the major points raised on appeal and la-belled questions of law pivot on several inarticulated major premises. The trial judge was not foreclosed from disbelieving, on the evidence before him, that Wyss was an embezzler.
Because the district judge made no express finding as to whether the money Wyss admitted receiving, were “kickbacks” or embezzled funds we are told by the defendant if they were the former then the money belonged to the City of Fort Wayne, but if they were political contributions — donated to a political trust fund, then Wyss embezzled them and therefore in either event were nontaxable. In Marienfeld v. United States, 8 Cir., 1954, 214 F.2d 632, the court rejected the Missouri statute proscribing embezzlement as a factor in determining taxability. See also: Kann v. Commissionér, 3 Cir., 1954, 210 F.2d 247.
We are by no means the bellwether among the Circuits to point up the Supreme Court’s statement in Rutkin v. United States, 1952, 343 U.S. 130, 138, 72 S.Ct. 571, 576: “We do not reach in this case the factual situation involved in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546. We limit that case to its facts.” The Rutkin majority of a sharply divided court said:
“An unlawful gain, as well as a lawful one, constitutes taxable income when its recipient has such control over it that, as a practical matter, he derives readily realizable economic value from it. [Citing.] That occurs when cash, as here, is delivered by its owner to the taxpayer in a manner which allows the recipient freedom to dispose of it at will, even though it may have been obtained by fraud and his freedom to use it may be assailable by someone with a better title to it.
“Such gains are taxable in the yearly period during which they are realized.” 343 U.S. 130, 137, 72 S.Ct. 571, 575.
Until the funds in question are reclaimed if they were “kickbacks” we think they constituted taxable income despite Wyss’ alleged vulnerability, if any, under Indiana law to return it when and if, or because of a duty of the Indiana Attorney General or County Attorney to institute recovery proceedings. We are not rescinding Wilcox, as defendant’s anticipatory argument suggests but observing that Wyss cannot come within the Wilcox holding unless the district judge found him to be an embezzler. And as both sides unanimously agree this Court does not weigh evidence nor find facts. Defendant has confused weight and credibility with questions of law.
Though in this opinion we have devoted comparatively more space to a discussion of points involving “kickbacks” and embezzlement than to the alleged “gifts,” the latter are not overlooked. Haigler v. United States, 10 Cir., 1949, 172 F.2d 986, relied upon by Wyss in this phase of his appeal, is distinguishable by the confusing jury instructions precipitating that reversal. But see: United States v. Wain, 2 Cir., 1947, 162 F.2d 60. There being substantial evidence to support the judgment appealed, and an absence of reversible error, it is affirmed.
Judgment affirmed.
. “The taxpayer was convicted in a Nevada state court in 1942 of the crime of embezzlement. He was sentenced to serve from 2 to 14 years in prison and was paroled in December, 1943.” 327 U.S. 404, 406, 66 S.Ct. 546, 548.
. A statemont by the district judge after the close of the evidence constitutes the springboard for defendant’s argument and conclusions.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
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