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https://www.courtlistener.com/api/rest/v3/opinions/2995407/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4013
Kamphuis Pipeline Co.,
Plaintiff-Appellant,
v.
Lake George Regional Sewer District,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:99-CV-363 William C. Lee, Chief Judge.
Argued November 1, 2001--Decided November 30, 2001
Before Flaum, Chief Judge, and Manion and
Kanne, Circuit Judges.
Flaum, Chief Judge. Plaintiff-Appellant
Kamphuis Pipeline Co. ("Kamphuis") sued
the Lake George Regional Sewer District
("Lake George") under Indiana’s Municipal
Public Works Statute. The district court
granted Lake George’s motion for summary
judgment because Kamphuis failed to
comply with the statute’s notice
provisions, and Kamphuis appeals. For the
reasons stated herein, we affirm.
I. Background
Lake George is a municipal corporation
created to construct a sewer system in
Lake George, Indiana. Lake George
contracted with Civil Constructors, Inc.
("Civil"), who served as general
contractor. Indiana law obligates public
works contractors to purchase a labor and
material bond to secure payment of
potential claimants, including
subcontractors. Civil purchased a bond
pursuant to this law from Capitol
Indemnity Corporation ("Capitol"), which
acted as surety and underwrote the bond.
Civil subcontracted certain aspects of
the project to Kamphuis, which performed
more than $1.7 million in work. Kamphuis
Vice President Russell DeJonge monitored
progress throughout Kamphuis’s work on
the project. DeJonge visited the site on
numerous occasions and attended meetings
held by the Lake George Regional Sewer
District Board ("the Board"), which was
comprised of neighborhood residents who
owned homes on Lake George. At the
meetings, the Board identified Richard
Fox as the Board’s attorney and
instructed meeting attendees to forward
all correspondence regarding non-payment
to Mr. Fox.
Civil ultimately refused to pay
Kamphuis. In late April 1997, DeJonge
informed Arashdeep Pannu, the project en
gineer’s field representative, that Civil
had failed to pay a substantial amount of
money to Kamphuis. On that same day, Abe
Munfah, another employee of the project
engineer, forwarded a letter to Lake
George recommending that the Board
release payment to Civil for work
completed through March 24, 1997.
DeJonge learned that Lake George
continued to pay Civil despite the fact
that Civil owed subcontractors
substantial sums of money. Accordingly,
Kamphuis mailed a letter to Capitol (the
project surety) notifying Capitol of
Civil’s failure to pay and itemizing the
amounts due. The letter, dated May 9,
1997, advised Capitol that Kamphuis
sought recovery on the "Payment and
Performance Bonds" that Capitol had
issued. Kamphuis forwarded copies of the
letter to three additional sources: (1)
Richard Fox, Lake George’s attorney and
contact representative; (2) Abe Munfah, a
representative of the project engineer;
and (3) Thomas LaCosse, an employee at
Civil./1
In August 1997, having received no
payment, Kamphuis sued both Civil and
Capitol for breach of contract in the
United States District Court for the
Western District of Michigan. Immediately
before the case proceeded to trial,
Kamphuis and Capitol settled. Under the
agreement, Capitol paid Kamphuis $1.2
million, and Kamphuis released Capitol
from all liability under the payment
bond. The district court ultimately
entered judgment in favor of Kamphuis for
approximately $1.7 million. On September
15, 1998, Civil filed for bankruptcy
protection under Chapter 7.
Kamphuis then filed suit against Lake
George in the Northern District of
Illinois under the Indiana Municipal
Public Works Statute ("MPWS") for
$479,955.01, which represents the
difference between the judgment and the
amount received from Kamphuis’s
settlement with Capitol. Both parties
moved for summary judgment before
thedistrict court, which granted Lake
George’s motion. The district court held
that Kamphuis failed to comply with the
notice provisions of the MPWS, which are
a prerequisite to recovery under Indiana
law. Kamphuis had argued that its May 9
letter addressed to Capitol--and copied
to Lake George, Civil, and the project
engineer--constituted adequate notice
under the act. The district court
rejected this argument as wholly
inconsistent with the MPWS’s plain
language. Kamphuis appeals.
II. Discussion
We review de novo the district court’s
grant of summary judgment, see Feldman v.
American Memorial Life Ins. Co., 196 F.3d
783, 789 (7th Cir. 1999), and draw all
reasonable inferences in favor of the
nonmoving party. Pugh v. City of Attica,
259 F.3d 619, 625 (7th Cir. 2001).
Moreover, in this diversity action,
Indiana law governs all substantive
disputes, while federal law applies to
procedural matters. Allen v. Cedar Real
Estate Group, LLP, 236 F.3d 374, 380 (7th
Cir. 2001).
The Indiana Municipal Public Works
Statute is a remedial statutory scheme
intended to secure payment for
subcontractors, laborers, materialmen,
and service providers who perform public
works construction projects. See Dow-Par,
Inc. v. The Lee Corp., 644 N.E.2d 150,
153 (Ind. App. 1995). The MPWS requires
public works boards/2 to withhold final
payment from the general contractor until
all subcontractors, laborers and
materialmen have been paid. In the event
of non-payment, the MPWS creates
alternative statutory remedies: a
subcontractor may proceed either against
the public works board, or against the
surety that underwrites the labor and
materials bond. See Indiana Carpenters
Central and Western Indiana Pension Fund
v. Seaboard Surety Co., 601 N.E.2d 352,
357-58 (Ind. App. 1992).
The first remedy, which is at issue in
this case, allows subcontractors to
recover directly from the board by
petitioning the board to impound funds.
To receive payment under this remedy,
(b) the subcontractor . . . shall file
their claims with the board within sixty
(60) days after the last labor performed,
last material furnished, or last service
rendered by them, as provided in section
13 of this chapter.
* * *
(e) A claim form must be signed by an
individual from the political subdivision
or agency who is directly responsible for
the project and who can verify:
(1) the quantity of a purchased item; or
(2) the weight or volume of the material
applied, in the case of a road, street,
or bridge project.
Ind. Code sec. 36-1-12-12(b), (e)
(emphasis added) ("Section 12"). Section
12 refers explicitly to Section 13, which
serves two functions relevant to this
appeal. First, Section 13 describes the
proper procedures for filing claims under
the act; second, it provides the
alternate statutory remedy for
subcontractors seeking to recover for
non-payment of work performed on a public
construction project.
Under Section 13, an unpaid
subcontractor may recover directly from
the surety who underwrote the risk of
non-payment on the materials and labor
bond. To trigger this provision, the
statute states that:
(d) A person whom money is due for labor
performed, material furnished, or
services provided shall . . . file with
the board signed duplicate statements of
the amount due. The board shall forward
to the surety of the payment bond one (1)
of the signed duplicate statements.
Ind. Code sec. 36-1-12-13.1(d) (emphasis
added) ("Section 13"). Section 13
requires subcontractors to file duplicate
forms with the board. Thus, although
Indiana’s statutory scheme creates two
alternative remedies for non-payment, the
notice provision under either remedy is
the same: the subcontractor seeking
payment must file duplicate copies with
"the board." If the subcontractor seeks
recovery directly from the board pursuant
to Section 12, then the statute requires
no further action. If, however, the
subcontractor triggers the alternative
remedy and seeks recovery from the
surety, then the statute requires the
board to forward one copy to the project
surety.
Indiana case law is clear that the
notice provisions of the MPWS are
procedural precedents "which must be per
formed prior to commencing an action."
Seaboard Surety, 601 N.E.2d at 357; see
also Moduform, Inc. v. Verkler Contractor
Inc., 681 N.E.2d 243, 245-46 (Ind. App.
1997). In this case, Kamphuis claims that
its May 9 letter to Capitol constitutes
adequate notice under the MPWS because,
by addressing the cover letter directly
to Capitol, Kamphuis obviated the need
for Lake George to forward a copy to the
surety. We disagree.
Nothing in the statute’s plain language
or Indiana case law suggests that a
subcontractor may deviate from the
requisite statutory notice provisions. It
is easy to discern why Indiana courts
require strict compliance with the
statute’s notice provisions. Here,
Kamphuis mailed a letter to the surety
indicating that it sought recovery under
the "Payment and Performance Bonds."
While Kamphuis forwarded a carbon copy to
Lake George’s representative, nothing in
the original letter suggests that
Kamphuis also sought recovery from the
Board under the alternative
statutoryremedy. Moreover, to proceed
directly against Lake George, Section 12
also required Kamphuis to obtain the
signature of "an individual from the
political subdivision or agency who is
directly responsible for the project and
who can verify: (1) the quantity of a
purchased item; or (2) the weight or
volume of the material applied . . . ."
Ind. Code sec. 36-1-12-12. Kamphuis
failed to comply with this provision as
well.
III. Conclusion
Kamphuis neither filed duplicate copies
of its claim with the Board, see Ind.
Code sec. 36-1-12-13.1, nor obtained an
authorized signature verifying the
amounts owed, see Ind. Code sec. 36-1-12-
12. As a result, Kamphuis failed to
comply with the procedural requisites of
the Indiana Municipal Public Works
Statute. Accordingly, we AFFIRM the
decision of the district court.
FOOTNOTES
/1 The entire letter is reprinted in the district
court’s opinion. See Kamphuis Pipeline Co. v.
Lake George Regional Sewer District, No. 99-CV-
363, slip op. at 2-3 (N.D. Ind. December 7,
2000).
/2 The statute defines board as "the board or office
of a political subdivision or an agency having
the power to award contracts for public work."
Ind. Code sec. 36-1-12-1.2(1). This definition
includes the Board of the Lake George Regional
Sewer District. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2997409/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4351
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID FRAZER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-30051-001—Jeanne E. Scott, Judge.
____________
ARGUED SEPTEMBER 20, 2004—DECIDED DECEMBER 7, 2004
____________
Before POSNER, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This case concerns an upward
adjustment under the federal sentencing guidelines that is
unaffected by the uncertainty created in the wake of Blakely
v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), and
United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert.
granted, 125 S. Ct. 11 (Aug. 2, 2004).
David Frazer pled guilty to a single-count indictment
charging him with using a telephone to make threatening
communications in violation of 18 U.S.C. § 844(e). The
indictment charged that Frazer made two bomb threats, but
2 No. 03-4351
at sentencing the district judge determined that the
undisputed evidence demonstrated that he made three sep-
arate threats, so he applied U.S.S.G. §2A6.1(b)(2), which pro-
vides for a 2-level upward adjustment if the offense involved
“more than two threats.” Frazer challenges this increase on
a legal, not a factual basis, so, undeterred by Blakely/
Booker, we proceed to resolve his appeal.
Frazer, in March of 2003, was 34 years old and living with
his second wife, Teresa Day, in Mt. Pleasant, Iowa. Ms. Day
was divorced from her first husband and, for a time, had
custody of her two daughters from that marriage. She lost
a custody battle over the children, however, and they went
to live a few hundred miles away with Day’s ex-husband in
Pana, Illinois. Frazer, apparently with some help from Day,
tried several schemes to get the children back.
At one time, Day and Frazer discussed kidnapping the
children. Frazer even went so far as to cause an obituary
announcing his own death to be placed in a local newspaper
to assist Day in reclaiming the children on the fraudulent
basis that he was no longer around. Frazer also urged the
children to run away accuse their father of abuse, and tell
school authorities that they were unhappy in Pana and
longed to return to their mother in Iowa. On top of all this,
Frazer, claiming to be an Illinois social worker, wrote a
letter to a state court judge expressing concerns about Day’s
ex-husband being a bad influence on the children.
Against this backdrop, Frazer hatched a harebrained plot
that somehow or other was, in his mind, going to help Day
get her children back. He prepared a tape-recorded message
announcing that bombs were planted in two Pana schools
and on a school bus in the district where the children were
enrolled as students. On March 10, 2003, at around 9 a.m.,
Frazer called the office of the district’s superintendent from
his home in Iowa. When a secretary answered the phone, he
played the recording. The message gave staff about 15
No. 03-4351 3
minutes to evacuate the buildings. Frazer then called the
Pana Junior High School, where one of the children at-
tended. The secretary who answered the telephone heard
only part of the recorded message, but what she heard was
enough to alert her to the nature of the call: “If you don’t
want any of the students to get hurt, you need to evacuate
the buildings. The bombs are set to go off at 9:15.” Frazer
does not dispute the secretary’s assertion that he hung up
when she tried to transfer the call to the school’s principal.
He also acknowledges that he called back immediately,
reached the same secretary, and replayed the entire
recorded bomb-planted message.
Fourteen hundred students and staff were evacuated from
four schools in the district in response to Frazer’s calls.
Police later identified Frazer as the culprit by tracing the
calling card number used in making the calls. When officers
confronted him, he admitted making the recording but
denied making the calls. Frazer was subsequently charged
in a single-count indictment with making “two separate
bomb threats” to the Pana Community School District. The
indictment does not identify which of the three calls gave
rise to the charge or explain why only two threats were
alleged. We cannot tell if the government’s theory of the
case was ever clarified because there is no written plea
agreement, and no transcript of the plea colloquy has been
prepared.
The probation officer recommended in the presentence
report that Frazer be given a 4-level upward adjustment
under U.S.S.G. §2A6.1(b)(4) because he caused a “substan-
tial disruption of public functions and services” and an in-
crease of 2 levels under §2A6.1(b)(2) because the offense
involved “more than two threats.” The probation officer jus-
tified the latter adjustment on the alternative bases that
there were “three phone calls and threats of three bombs.”
Frazer filed an objection to the 2-level adjustment, assert-
ing that his third call was a de minimis “addition” to the
4 No. 03-4351
second because disruption was already underway. He also
argued that under §2A6.1(b)(2) several threats might merge
and be counted as one if made as part of a “single instance
or episode.”
At sentencing, Frazer pressed both themes: the second
and third calls (and possibly even the first) should be viewed
as composing “a single thoughtless action” involving “one
single threat,” and, alternatively, that the second and third
calls constituted a “single attempt to make a threatening
communication.” Either way, according to Frazer, there
were at most two threats. The government responded that
all three of Frazer’s telephone calls were understood by
the listeners as threatening and thus should be counted
separately.
Neither party addressed the probation officer’s assumption
that §2A6.1(b)(2) applied even if Frazer had telephoned just
once, given that his recording warned that bombs were
planted in three different locations. The district court, how-
ever, was persuaded. The court reasoned that equating the
number of threats with the number of “locations threatened”
better linked the offensive conduct to its actual consequences.
The court also noted that the dictionary definition of “threat”
is “an expression of intention to inflict evil, injury, or dam-
age” and concluded that counting telephone calls was an
inadequate way of measuring Frazer’s intentions. The court
rejected the parties’ shared contention that §2A6.1(b)(2)
focuses on the number of “threatening communications”; the
court observed that this expression is used in the Commen-
tary to §2A6.1(b)(2) but not in the text and decided that the
use of different expressions must imply a different meaning.
Our review of this question of guideline interpretation is de
novo. See United States v. Alvarenga-Silva, 324 F.3d 884,
886 (7th Cir. 2003); United States v. Stokes, 347 F.3d 103,
105 (4th Cir. 2003).
Frazer argues that the district court should have counted
the number of “threatening acts” (or “threatening commun-
No. 03-4351 5
ications” or “phone calls”) rather than the “number of vic-
tims” threatened. His argument centers on Application Note
3(B) to §2A6.1(b)(2), which allows for an upward departure
“[i]f the offense involved substantially more than two
threatening communications to the same victim or a
prolonged period of making harassing communications to
the same victim, or if the offense involved multiple victims[.]”
Frazer contrasts the upward adjustment under §2A6.1(b)(2),
which provides for a 2-level increase if the offense involved
“more than two threats” but does not contain any reference
to “victims,” with Application Note 3(B), which does. Because
Application Note 3(B) takes the victim or victims into account,
he concludes that the Sentencing Commission did not
envision §2A6.1(b)(2) as doing so.
We agree with this analysis, although we think the in-
ferences Frazer draws from it are flawed. For one thing, he
sets up an artificial dichotomy. The fact that the number of
threats is not determined by the number of victims does not
by itself compel us to find that the number is determined by
the number of communications, and Frazer gives us no
other reason to read “threats” and “threatening communica-
tions” as equivalent. He also mischaracterizes the district
court’s position by ignoring the logical distinction between
the terms the district court chose to embody its definition of
threat—“locations”and “areas”—and the expression “number
of victims,” which the court never used. It is true that if the
court focused on locations partly out of concern that more
places means more potential victims, then its interpretation
of §2A6.1(b)(2) might intrude into Application Note 3(B)’s
reliance on upward departure to address offenses involving
multiple victims. But this is hardly a necessary reading. In
any case, we know that the district court was not counting
individual “victims” because it found only three threats
when more than 1400 students, faculty, and staff in the
school district were affected.
6 No. 03-4351
Still, we think Frazer’s basic proposition that “threats”
means “threatening communications” is correct. We are not
persuaded by the district court’s view that Application Note
3(B) would be redundant if it used “threatening communica-
tions” to mean the same thing that the word “threats” does
in the text of §2A6.1(b)(2). The only overlap between the
guideline and the note is where there are multiple threats
targeting the same victim, and in that circumstance the rules
have complementary functions. Section §2A6.1(b)(2) alone
governs if the number of threats is more than two but not
“substantially more.” When the number is “substantially
more than two,” Application Note 3(B) enables the court to
impose a further penalty by upward departure.
But more importantly, existing authority associates the
number of threats for purposes of §2A6.1(b)(2) with the num-
ber of communications made. In United States v. Spring,
305 F.3d 276, 280 (4th Cir. 2002), the Fourth Circuit held
that the word “threat” has the same meaning in subsec-
tion (b)(2) that it has in the underlying federal statutes that
criminalize threats, e.g., 18 U.S.C. § 844(e), 18 U.S.C. § 875(c),
and 18 U.S.C. § 876(c). Under these statutes, the unit of
prosecution is the telephone call or letter; each call or letter
is indictable separately as a different “threat.” See United
States v. Corum, 362 F.3d 489 (8th Cir. 2004) (three counts
for three telephoned bomb threats under § 844(e)); United
States v. Nedd, 262 F.3d 85, 88 (1st Cir. 2001) (“four counts
of interstate threats” based on four violent telephone mes-
sages under § 875(c)); United States v. Thomas, 155 F.3d 833
(7th Cir. 1998) (counting five letters as “five death threats”
under § 876). We ourselves have assumed that “threats”
and “threatening communications” have the same meaning.
See United States v. Bohanon, 290 F.3d 869, 876 (7th Cir.
2002). See also United States v. Goynes, 175 F.3d 350, 355
(5th Cir. 1999) (equating “multiple threatening letters” with
“multiple threats” in applying §2A6.1(b)(2)); United States
v. Newell, 309 F.3d 396, 403 (6th Cir. 2002) (assuming that
No. 03-4351 7
“the Sentencing Commission accounted for the number of
communications by imposing an enhancement under
U.S.S.G. § 2A6.1(b)(2)”). And one of our sister circuits has
explicitly defined “threats” as “threatening communications”
for purposes of §2A6.1(b)(2). See United States v. Stokes,
347 F.3d 103, 106 (4th Cir. 2003) (holding that “the phrase
‘more than two threats,’ as used in § 2A6.1(b)(2), refers to
the number of threatening communications”).
The district court’s proposal to distinguish separate threats
on the basis of location is not wholly incompatible with this
authority. The Stokes court in particular left open the pos-
sibility of counting multiple threats from a single call or
letter if the threats “are so distinct in nature and purpose
that they should not be treated as a single threat for pur-
poses of § 2A6.1(b)(2).” See Stokes, 347 F.3d at 106 n.2. But
we are reluctant to endorse this perspective. On the facts
before us, we see no reason to expand or complicate what
appears to be the accepted understanding that §2A6.1(b)(2)
measures the number of threatening communications. Threats
to multiple locations implicate more victims and create
greater disruption, but the guidelines already provide for
both of these concerns. Application Note 3(B), of course, pro-
vides for departure where there are multiple victims, and
§2A6.1(b)(4)—which the district court also applied and which
Frazer does not challenge—provides for an increase of 4
levels if there is a “substantial disruption of public, gov-
ernmental, or business functions or services.” Moreover, the
district court’s view does not find an advocate even in the
government. The government defends the application of the
“more than two threats” adjustment on the basis that
Frazer made three telephone calls and responds to the
district court’s position only by insisting that we need not
decide its validity.
For now, though, we do not decide whether in an appro-
priate case the number of threats might turn on more than
the number of communications. It is undisputed that there
8 No. 03-4351
were three telephone calls, each containing a recorded mes-
sage threatening that a bomb was planted. To prevail even
under his interpretation of §2A6.1(b)(2), Frazer must show
that at least one of the calls was not a “communication,” or
for some other reason does not qualify as a threat, and he
is unable to do so.
Frazer argues that cases interpreting an “earlier version
of U.S.S.G. §2A6.1(b)(2)” support the idea that several
threats may be combined in a “single instance or episode.”
He relies heavily on United States v. Sanders, 41 F.3d 480,
484 (9th Cir. 1994), which concluded that a downward ad-
justment under the former §2A6.1(b)(2) applies when threats
may be regarded as “the product of a single impulse” or “a
single thoughtless response to a particular event.” However,
the only connection between the former and the current ver-
sions of §2A6.1(b)(2) is the section number. The 1997
amendment giving rise to the current §2A6.1(b)(2) substan-
tially revised the guideline, and the new version is entirely
different from that of the provision interpreted in Sanders,
41 F.3d at 484. It is clear that the “more than two threats”
language does not represent an attempt to replace or clarify
the old provision, because the old provision remains. It has
simply been moved elsewhere—it is now located at
§2A6.1(b)(5). Even if Frazer is correct that the second and
third calls would qualify as a single instance under
Sanders, that tells us nothing about how they would be
treated in the context of the new §2A6.1(b)(2).
Ultimately, the question comes down to whether the sec-
ond or third calls can properly be said to be de minimis.
Frazer adduces no legal authority for this proposition, and
we have been unable to find a single case in which a federal
court found any threat of violence to be de minimis. Further-
more, there is no question that all three calls were “true
threats” under the test of United States v. Khorrami, 895
F.2d 1186 (7th Cir. 1990). The calls conveyed a message
that a reasonable person would foresee a recipient interpret-
No. 03-4351 9
ing as an expression of intent to cause serious harm. Id. at
1192. By insisting that the third call was a continuation of
the second, Frazer is really arguing that what matters is the
number of communications he intended to make. But the
test we apply is an objective one. United States v. Schnei-
der, 910 F.2d 1569, 1570 (7th Cir. 1990). By that measure
there were three threats.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-7-04 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2995439/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2486
Michael Brandon, M.D.,
Plaintiff-Appellant,
v.
Anesthesia & Pain Management
Associates, Ltd., Kumar S. Ravi,
M.D., James R. Boivin, M.D., and
Kathleen H. Slocum, M.D.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97-CV-1004--G. Patrick Murphy, Chief Judge.
Argued April 18, 2001--Decided January 18, 2002
Before Harlington Wood, Jr., Diane P. Wood,
and Williams, Circuit Judges.
Diane P. Wood, Circuit Judge. Dr. Michael
Brandon was employed as an
anesthesiologist by Anesthesia & Pain
Management Associates (APMA). After
discovering that certain APMA doctors
seemed to be falsifying the bills they
submitted to Medicare, he brought his
concerns to the attention of the APMA
shareholders. This led in short order
first to problems at work and later to
his discharge. Believing that the
discharge was in retaliation for his
airing of the Medicare issue, Brandon
filed a lawsuit claiming that the
defendants had committed the Illinois
tort of retaliatory discharge. A jury
found in his favor, but not long
afterward the district court granted
APMA’s motion for judgment as a matter of
law and vacated the jury verdict. The
court found as a matter of law that the
Illinois Supreme Court would not
recognize a retaliatory discharge claim
under the circumstances of Brandon’s
case. In our view, the district court was
mistaken on this critical question of
Illinois law; we therefore reverse the
grant of the Rule 50 motion and order the
jury’s verdict to be reinstated.
Furthermore, we conclude that the trial
court should not have dismissed the
punitive damage claims, which we remand
for further proceedings.
I
Brandon began working as an
anesthesiologist for APMA in September
1993. APMA provides anesthesia services
to patients at St. Elizabeth’s Hospital
in Belleville, Illinois; approximately
45% of its patients are Medicare
recipients. When Brandon was hired, APMA
had four shareholder/ anesthesiologists:
Dr. Kumar Ravi, Dr. Kathleen Slocum, Dr.
James Boivin, and Dr. Maurice Boivin.
(Maurice Boivin was no longer a
shareholder at the time Brandon filed his
complaint, which accounts for his absence
in the list of defendants.) After two
years on the job, Brandon was promoted to
an associate position. Along with the
promotion came a 42% pay raise and the
ability to begin the process of becoming
an APMA shareholder. Brandon also
received a substantial bonus at the end
of 1995.
As an associate, Brandon was now
responsible (along with the shareholder-
doctors) for filling out Medicare billing
reports. He soon began to suspect that
several of the shareholders were making
alterations to reports or otherwise
falsifying reports in order to receive
Medicare reimbursement at rates higher
than the rates to which APMA was entitled
by law. Under the governing regulations,
Medicare allows for more generous
reimbursements for procedures that an
anesthesiologist "medically directs"
(because the bill includes both the
doctor’s services and the services of
various assistants), than for procedures
that the doctor "personally performs."
There are limits, however, to the use of
the "medically directed" rate; most
importantly for present purposes, an
anesthesiologist may not oversee more
than four surgeries at a time. If she
does, then the provider may bill (at a
much lower rate) only for the services of
the assistants who are actually
performing the work.
In May or June 1996, Brandon contacted
Medicare to obtain a copy of its
regulations. After reviewing them, he
became convinced that his colleagues’
practices were improper. Some, he
thought, were falsifying the number of
operations they were supervising, so that
they could bill at the highest "medically
directed" rate; others were altering the
billing sheets to indicate that they were
performing work, even though they had
left the hospital for the day.
Accordingly, at the shareholders’ meeting
held in early July 1996, he brought these
issues to their attention and showed them
copies of the relevant Medicare rules.
The doctors seemed upset that he had
contacted Medicare and worried about what
he had told the Medicare authorities.
Brandon assured them that he had asked
Medicare only generic questions and had
not divulged any information about APMA’s
billing procedures. He also suggested
that the shareholders should hire another
anesthesiologist, which would make it
easier for them legitimately to meet the
Medicare requirements for billing at
higher rates. The shareholders told
Brandon that they would look into the
problem. (At trial, the shareholders
argued that Brandon did not complain
about Medicare fraud until November 1996.
But since the jury found in Brandon’s
favor, we are taking his version of the
facts as true.)
A few weeks later, on July 24, 1996, the
shareholders told Brandon that his job
performance was unsatisfactory, that they
had received complaints about him, and
that he should start looking for other
work. Brandon found this suspicious, as
no formal complaint had ever been filed
against him, he had recently been
promoted, and he had recently received a
substantial raise. He pressed the
shareholders for details about the
alleged complaints against him, but they
did not furnish any particulars. Around
the same time, Brandon began keeping a
journal documenting all of the cases in
which he thought that APMA shareholders
were improperly billing Medicare. He
periodically brought these occurrences to
the shareholders’ attention, but he took
no other action at that time.
On October 4, 1996, Slocum told Brandon
that the shareholders had decided that he
had to leave his job by the end of the
year. Brandon protested that the
shareholders were firing him only because
of his challenges to their Medicare
claims and that he planned to "take them
to court." Slocum answered, "We can do
what we want with you. You don’t have a
contract."
On October 21 and 22, Brandon again
brought his complaints to the attention
of the shareholders. His effort did
nothing but bring about a letter from the
shareholders dated October 23, 1996,
formally notifying him that he was
discharged effective at the end of the
year, but also giving him the option to
resign. On November 1, 1996, Brandon met
with the shareholders to discuss the
termination; he again accused the
shareholders of retaliating against him
for pointing out the billing fraud. With
strong, vulgar language, Slocum made it
plain that Brandon was finished, and
bluntly added, "You don’t have a signed
contract." At this time, Brandon, for the
first time, threatened to report the
alleged fraud to the government.
On November 4, the shareholders sent
Brandon another letter making his
termination effective immediately, but
still urging him to resign. They
suggested that if he did not resign, they
could make it very difficult for him to
find another job. Brandon refused to
resign, and so he was terminated. Ten
months after his termination, he reported
APMA’s billing practices to the U.S.
Attorney’s Office. (The record does not
reflect what use, if any, the U.S.
Attorney’s Office made of his report.)
Brandon (a citizen of Missouri) then
filed this diversity suit against APMA
and its current shareholders (all
Illinois citizens), alleging retaliatory
discharge under Illinois law. The trial
began on October 26, 1999. Two days
later, at the close of Brandon’s
evidence, the defendants filed a motion
for judgment as a matter of law pursuant
to Federal Rule of Civil Procedure 50(a);
they renewed their motion at the close of
all the evidence. The court reserved its
ruling on the motions; it also refused
Brandon’s request for a punitive damages
instruction. On November 3, 1999, the
jury returned a verdict in favor of
Brandon, awarding him $1,034,000 for lost
earnings and $1,000,000 for pain and
suffering and emotional distress.
But Brandon’s victory was short-lived.
About six months after the jury verdict,
the district court entered a final
judgment granting the defendants’ motion
for judgment as a matter of law, vacating
the jury verdict, and dismissing the
complaint. This appeal followed.
II
The jury concluded that Brandon was
fired for complaining about the
shareholders’ fraudulent billing
practices, and we are not asked to
overturn this determination. Rather, the
question for us is whether this discharge
was in retaliation for activities which
are protected by the clearly mandated
public policy of Illinois, and as such
was tortious under Illinois law.
Illinois is an at-will employment state,
which means that in general an employee
can be discharged at any time for any
reason or none at all. Pratt v.
Caterpillar Tractor Co., 500 N.E.2d 1001,
1002 (Ill. App. Ct. 1986). Nevertheless,
there are exceptions to that rule: one
obvious one is that a forbidden
characteristic such as race cannot be the
reason for the actions of someone
counting as an "employer." 775 Ill. Comp.
Stat. Ann. 5/2-102 (West 2001). The tort
of retaliatory discharge embodies another
exception. A discharged employee may sue
her employer for the common law tort of
retaliatory discharge if her discharge
was in retaliation for certain actions
that are protected by the public policy
of Illinois, including retaliation for
complaints about an employer’s unlawful
conduct. Pratt, 500 N.E.2d at 1002;
Hinthorn v. Ronald’s of Bloomington,
Inc., 519 N.E.2d 909, 911 (Ill. 1988).
Unlike the federal False Claims Act
("FCA"), 18 U.S.C. sec. 287, which we
discuss below, the Illinois tort does not
require that the employee have reported
the allegedly illegal conduct to the
authorities, as long as she reported it
to the employer, Lanning v. Morris Mobile
Meals, Inc., 720 N.E.2d 1128, 1130-31
(Ill. App. Ct. 1999). The tort also does
not require the employee to have been
correct about the unlawfulness of the
conduct, as long as she had a good-faith
belief that it was unlawful. See
Stebbings v. Univ. of Chicago, 726 N.E.2d
1136, 1144 (Ill. App. Ct. 2000).
As noted earlier, the district court did
not overturn the jury’s determination of
the reason for Brandon’s termination:
that he was fired for complaining about
the billing practices. Instead, it found
that Brandon’s claim failed on two other
grounds: (1) he "failed to show any clear
mandate of Illinois public policy which
his discharge contravenes," and (2) "even
if such public policy exists, other means
exist to vindicate it absent recognition
of the tort of retaliatory discharge in
this case." These are purely legal points
that we review de novo. Doe v. Howe
Military School, 227 F.3d 981, 990 (7th
Cir. 2000).
A. Public Policy Against Medicare Fraud
While the Illinois Supreme Court has
acknowledged that "[t]here is no precise
definition" of the term "clearly mandated
public policy," Palmateer v. Int’l
Harvester Co., 421 N.E.2d 876, 878 (Ill.
1981), the court has explained that
"public policy concerns what is right and
just and what affects the citizens of the
State collectively. . . . [A] matter must
strike at the heart of a citizen’s social
rights, duties, and responsibilities
before the tort will be allowed." Id. at
878-89.
Illinois courts have identified two
situations in which the "clear mandate of
public policy" standard is met: (1) when
an employee is fired for asserting a
workers’ compensation claim, Kelsay v.
Motorola, Inc., 384 N.E.2d 353, 357-59
(Ill. 1978); and (2) when an employee is
fired for refusing to engage in illegal
conduct or reporting the illegal conduct
of others ("whistle blowing" or "citizen
crime fighting"). Palmateer, 421 N.E.2d
at 879. Brandon’s claim rests upon the
latter of these two.
The defendants implicitly concede, as
they must, that Brandon believed that the
conduct about which he had complained
amounted to Medicare fraud. Medicare
fraud is covered by several federal
felony statutes, including the FCA, which
criminalizes the act of making false
claims to the federal government
(including overcharging for Medicare
reimbursements), the False Statements
Act, 18 U.S.C. sec. 1001, and the
criminal Medicare and Medicaid anti-fraud
and abuse provisions, 42 U.S.C. sec.
1320a-7 (West 2001).
Notwithstanding the fact that Illinois
has long had a public policy that
encourages citizens to report crimes, see
Palmateer, 421 N.E.2d at 880, the
district court took the rather narrow
view that these federal criminal statutes
could not provide a basis for Illinois
public policy. It stated that Brandon had
failed to prove "the existence of any
clear mandate of Illinois public policy
in favor of preventing health care fraud
against the federal government rather
than the State of Illinois," implying
that state public policy would not be
concerned with the defrauding of the
federal government and the violation of
federal statutes that make it a crime to
commit Medicare fraud.
In so holding, the court erred. To begin
with, under the Supremacy Clause of the
United States Constitution, the state is
required to treat federal law on a parity
with state law, and thus it is not
entitled to relegate violations of
federal law or policy to second-class
citizenship. See Claflin v. Houseman, 93
U.S. 130, 136-37 (1876). But we need not
escalate this case to the constitutional
level, because it is plain that the
courts of Illinois have done no such
thing. To the contrary, they have
explicitly stated that it is a clearly
established policy of Illinois to prevent
its citizens from violating federal law
and that the state’s public policy
encourages employees to report suspected
violations of federal law if that law
advances the general welfare of Illinois
citizens. Russ v. Pension Consultants
Co., 538 N.E.2d 693, 697 (Ill. App. Ct.
1989) ("The [Illinois] supreme court has
held that public policy may be found in
federal law. . . . [A]n Illinois
citizen’s obedience to the law, including
federal law, is a clearly mandated public
policy of this state. . . ."); Johnson v.
World Color Press, Inc., 498 N.E.2d 575,
576 (Ill. App. Ct. 1986) ("Public policy
can be found not only in the laws and
judicial decisions of Illinois, but can
also be found in federal law. Our supreme
court . . . held that a cause of action
for retaliatory discharge could be based
upon a clearly mandated public policy
which has been declared by Congress and
which is national in scope.") (citations
omitted).
There are many examples of Illinois
cases in which reports about violations
of federal law have given rise to valid
claims of retaliatory discharge. See,
e.g., Wheeler v. Caterpillar Tractor Co.,
485 N.E.2d 372 (Ill. 1985) (employee was
fired after reporting violations of
Nuclear Regulatory Commission policy);
Stebbings, 726 N.E.2d at 1145-46
(employee was fired for complaining about
violations of federal radioactive
materials regulations); Sherman v. Kraft
Gen. Foods, Inc., 651 N.E.2d 708, 712
(Ill. App. Ct. 1995) (employee was fired
for reporting violations of OSHA); Howard
v. Zack Co., 637 N.E.2d 1183, 1190-91
(Ill. App. Ct. 1994) (employee was fired
for reporting violation of federal record
keeping regulations); Johnson, 498 N.E.2d
575 (employee was fired for reporting
violations of federal securities laws).
Furthermore, the Illinois legislature
itself has explicitly articulated a state
policy against all public benefits fraud:
Because of the pervasive nature of public
assistance fraud and its negative effect
on the people of the State of Illinois
and those individuals who need public
assistance, the General Assembly declares
it to be public policy that public
assistance fraud be identified and dealt
with swiftly and appropriately
considering the onerous nature of the
crime.
305 Ill. Comp. Stat. Ann. 5/8A-1 (West
2001). Although in a highly technical
sense APMA may not have committed state
public benefits fraud, its discharge of
Brandon violated the statutory policy
against public benefits fraud in general.
See Stebbings, 726 N.E.2d at 1142
(statute from which public policy can be
inferred need not necessarily apply to
the specific conduct at hand). Finally,
the Illinois Supreme Court is
particularly sensitive to the public
policy underpinnings of statutes that
affect the health and safety of citizens.
United States ex rel. Chandler v. Hektoen
Inst. for Med. Research, 35 F. Supp. 2d
1078, 1083 (N.D. Ill. 1999).
In short, the Illinois courts are under
no illusions about the status of federal
law as a source of public policy for the
state of Illinois. The Illinois
legislature has stated that it is the
public policy of the state to identify
and end public benefits fraud; Illinois
has an undeniable interest in ensuring
that its citizens are obedient to federal
law and that its public benefits
recipients are not cheated out of proper
medical care or benefits. Taking all this
into account, we conclude that the
Illinois Supreme Court would find that
Brandon’s discharge was in violation of
the public policy of the state of
Illinois.
B. Alternative Means of Enforcement
Even if Brandon has established the
elements of a retaliatory discharge
claim, the Illinois courts have hinted in
dicta that the claim may still be
rejected if an adequate alternative
remedy exists to vindicate the
retaliatory discharge or otherwise to
deter the activity that is inconsistent
with public policy. "The tort of
retaliatory discharge was not intended to
serve as a substitute means for
enforcement of particular laws."
Stebbings, 726 N.E.2d at 1141. See also
Hamros v. Bethany Homes & Methodist
Hosp., 894 F. Supp. 1176, 1178-79 (N.D.
Ill. 1995) (no retaliatory discharge
claim for plaintiff fired for exercising
his rights under the Family and Medical
Leave Act (FMLA) since the FMLA already
prohibits retaliation and this discharge
presented a private matter between the
employer and the employee).
Taking its lead from these cases, the
district court also supported its
decision on the ground that the FCA,
which forbids the submission of knowingly
false claims for money to the federal
government, adequately protected the
state’s policy against public benefits
fraud and provided Brandon with a
sufficient remedy for the retaliatory
discharge. The FCA permits the federal
government to impose civil sanctions
against fraudulent parties. 31 U.S.C.
sec. 3730(a). It also allows a private
individual to bring a qui tam action for
fraud, on behalf of the federal
government, and to recover an award of up
to 30% of the proceeds of the action. See
31 U.S.C. sec. 3730(b)-(d).
But the existence of government-imposed
criminal and civil sanctions for unlawful
conduct cannot be the basis for inferring
that an employee cannot state a claim for
retaliatory discharge when the employer
fires her in retaliation for reporting
the unlawful conduct. In most "whistle-
blower" retaliatory discharge claims, the
employee is objecting to conduct by her
employer that carries criminal or civil
sanctions. See Johnson, 498 N.E.2d at 578
(employee who complains about violations
of the federal securities law is
protected from retaliation even though
the employer is subject to penalties for
such Securities Act violations). If the
district court’s view were correct, the
whole "citizen crime-fighter" species of
retaliatory discharge claim would become
extinct in Illinois. We see nothing in
the scraps of language from other courts
that would support such an important
shift in Illinois law, and the Illinois
Supreme Court itself has never taken such
a step.
To the extent that alternative remedies
are relevant, however, we disagree with
the district court that the anti-
retaliation provision of the FCA, 31
U.S.C. sec. 3730(h) (West 2001), is
enough to bar Brandon’s claim. Section
3730(h) states that:
Any employee who is discharged, demoted,
suspended, threatened, harassed, or in
any other manner discriminated against in
terms and conditions of employment by his
or her employer because of lawful acts
done by the employee on behalf of the
employee or others in furtherance of an
action under this section, including
investigation for, initiation of,
testimony for, or assistance in an action
filed or to be filed under this section,
shall be entitled to all relief necessary
to make the employee whole.
(Emphasis added). That relief includes
reinstatement, double back pay with
interest, "and compensation for any
special damages sustained as a result of
the discrimination, including litigation
costs and reasonable attorneys’ fees." 31
U.S.C. sec. 3730(h). The final phrase
permits recovery for emotional distress.
Neal v. Honeywell, Inc., 191 F.3d 827,
832 (7th Cir. 1999).
For Brandon to bring an action against
APMA based on his discharge under sec.
3730(h), he would have to show that (1)
his actions were taken "in furtherance of"
an FCA enforcement action and were
therefore protected by the statute; (2)
that the employer had knowledge that he
was engaged in this protected conduct;
and (3) that the discharge was motivated,
at least in part, by the protected
conduct. See United States ex rel.
Yesudian v. Howard Univ., 153 F.3d 731,
736 (D.C. Cir. 1998). The tort of
retaliatory discharge, as we have already
noted, does not require the employee to
have reported the allegedly illegal
conduct to the authorities. Lanning, 720
N.E.2d at 1131. People in Brandon’s
position, who choose to raise their
concerns privately within their firm or
company, rather than publicly, simply do
not qualify for the FCA claim.
This conclusion disposes of the question
whether there was an alternative path
available to Brandon, unless his
complaints could somehow be seen as
something "in furtherance of" a yet-to-
be-filed FCA enforcement action or
Illinois would regard the FCA as
"equivalent" even though it addresses a
smaller set of cases than the state tort.
The FCA covers "investigation for,
initiation of, testimony for or
assistance in an [enforcement] action
filed or to be filed." 31 U.S.C. sec.
3730(h). In Neal v. Honeywell, 33 F.3d
860 (7th Cir. 1994) (Honeywell I), this
court defined an "action" under sec.
3730(h) to include situations in which a
qui tam action is a "distinct
possibility," or "litigation could be
filed legitimately--that is, consistently
with Fed. R. Civ. P. 11." Id. at 864. We
did not, however, define "in furtherance
of" or otherwise describe the actions the
employee must have taken in relation to
the possibility of litigation. In Neal
itself, the plaintiff had provided enough
information to the government to trigger
an investigation and that the employer
was on notice of the investigation. Id.
Luckey v. Baxter Healthcare Corp., 183
F.3d 730 (7th Cir. 1999), shed little
light on this issue, stating simply that
"[o]nly investigation, testimony, and
litigation are protected." Id. at 733.
Luckey also established that a
retaliatory complaint had to be dismissed
if the employer did not know about the
whistle-blower’s report before it
discharged him.
What exactly had Brandon done that could
have been seen as protected conduct or a
"precursor to [FCA] litigation?" He had
notified the shareholders that he
wasconcerned about their billing
practices. He had contacted Medicare for
information about Medicare billing rules.
But were any of these actions "in
furtherance of" a qui tam action? Did any
of these actions put APMA on notice of
the "distinct possibility" of a qui tam
action? Under the circumstances here, we
cannot find that APMA would have realized
that it faced the "distinct possibility"
of such an action. It is true that
Brandon used terms like "illegal,"
"improper," and "fraudulent" when he
confronted the shareholders about the
billing practices. On the other hand,
Brandon had never explicitly told the
shareholders that he believed they were
violating the FCA and had never
threatened to bring a qui tam action. He
never threatened to report their conduct
to the government until after he was
discharged. Compare Eberhardt v.
Integrated Design & Constr., Inc., 167
F.3d 861, 867 (4th Cir. 1999). Brandon
was simply trying to convince the
shareholders to comply with the Medicare
billing regulations. Such conduct is usu
ally not protected by the FCA, see
Yesudian, 153 F.3d at 740; Zahodnick v.
Int’l Bus. Machs. Corp., 135 F.3d 911,
914 (4th Cir. 1997); United States ex
rel. Hopper v. Anton, 91 F.3d 1261, 1269
(9th Cir. 1996). Additionally, such
conduct usually does not put an employer
on notice of potential FCA litigation.
See United States ex rel. Ramseyer v.
Century Healthcare Corp., 90 F.3d 1514,
1523 (10th Cir. 1996) (Plaintiff’s
conduct in advising her superiors of non-
compliance with Medicaid program
requirements did not suggest to employer
that she intended to bring an FCA
action.).
It is more accurate to say that
Brandon’s investigation of the billing
reports was part of the general course of
his responsibilities. At trial, Ravi
testified that one of Brandon’s job
duties was to ensure that the billing
practices complied with Medicare rules
and regulations. Thus, the fact that
Brandon was alerting his supervisors to
the possibility of their non-compliance
with the rules would not necessarily put
them on notice that he was planning to
take a far more aggressive step and bring
a qui tam action against them or report
their conduct to the government. See
Eberhardt, 167 F.3d at 868 ("[I]f an
employee is assigned the task of
investigating fraud within the company,
courts have held that the employee must
make it clear that the employee’s actions
go beyond the assigned task" in order to
allege retaliatory discharge under the
FCA.); Ramseyer, 90 F.3d at 1523 n.7
(Persons whose jobs entail the
investigation of fraud "must make clear
their intentions of bringing or assisting
in an FCA action in order to overcome the
presumption that they are merely acting
in accordance with their employment
obligations.").
Looking at all of the facts, it is
unclear at best that Brandon engaged in
activity that might have supported a suit
under the FCA anti-retaliation provision.
In this kind of situation, the Illinois
Supreme Court has held that the employee
remains free to pursue a remedy under the
common law tort of retaliatory discharge.
See Wheeler, 485 N.E.2d at 376-77.
Following Wheeler and respecting the
difference between the Illinois tort and
the FCA claim, we conclude that allowing
a state remedy in conjunction with
thepotentially available federal remedy
does "no violence to the interests
protected by the Federal statute."
Fragassi v. Neiburger, 646 N.E.2d 315,
318 (Ill. App. Ct. 1995). There is
nothing in sec. 3730(h) to lead us to
believe that Congress intended to preempt
all state law retaliatory discharge
claims based on allegations of fraud on
the government.
Finally, even if there is some kind of
federal remedy available under sec.
3730(h) (though not the kind of remedy
Brandon wanted), it appears that the
Illinois Supreme Court looks at this fact
as one of many factors in a pragmatic
approach toward determining when the tort
of retaliatory discharge will lie. See
Fellhauer v. Geneva, 568 N.E.2d 870, 876
(Ill. 1991). Compare Schweiker v.
Chilicky, 487 U.S. 412, 424 (1988)
(denying a Bivens-type remedy to
claimants who were improperly denied
disability benefits even though "Congress
failed to provide for complete relief");
Bush v. Lucas, 462 U.S. 367, 388 (1983)
(refusing to provide a Bivens remedy
after acknowledging the congressional
remedy would not provide relief for the
plaintiff’s First Amendment injury). The
state thus seems to take a more exacting
approach to the availability of an
alternative remedy than the Supreme Court
has done for implied Bivens actions under
the federal constitution. As the final
authority on the common law of the state,
it is of course entitled to do so.
III
Brandon also challenges the district
court’s refusal to instruct the jury on
punitive damages. As a federal court
sitting in diversity, we look to the law
of Illinois to determine the
appropriateness of punitive damages.
Europlast, Ltd. v. Oak Switch Sys., Inc.,
10 F.3d 1266, 1276 (7th Cir. 1993). Under
Illinois law, "[w]hile the measurement of
punitive damages is a jury question, the
preliminary question of whether the facts
of a particular case justify the
imposition of punitive damages is
properly one of law," Kelsay, 384 N.E.2d
at 359, and our review is therefore de
novo. Europlast, 10 F.3d at 1276.
In general, the Illinois Supreme Court
does not favor punitive damages.
Nevertheless, they may be awarded where
"torts are committed with fraud, actual
malice, deliberate violence or
oppression, or when the defendant acts
willfully, or with such gross negligence
as to indicate a wanton disregard of the
rights of others." Kelsay, 384 N.E.2d at
359. See also Cornell v. Langland, 440
N.E.2d 985, 987 (Ill. App. Ct. 1982)
(punitive damages are appropriate where
conduct is "intentional, deliberate and
outrageous"). Punitive damages are an
important part of a retaliatory discharge
action:
In the absence of the deterrent effect of
punitive damages there would be little to
dissuade an employer from engaging in the
practice of discharging an employee for
filing a workmen’s compensation claim. .
. . The imposition on the employer of the
small additional obligation to pay a
wrongfully discharged employee
compensation would do little to
discourage the practice of retaliatory
discharge, which mocks the public policy
of this State.
Kelsay, 384 N.E.2d at 359; see also
Midgett v. Sackett-Chicago, Inc., 473
N.E.2d 1280, 1283-84 (Ill. 1984).
It is certainly important to recall, as
APMA notes, that punitive damages are not
appropriate in all retaliatory discharge
cases. See Dixon Distrib. Co. v. Hanover
Ins. Co., 641 N.E.2d 395, 400 (Ill. 1994)
(actual malice is not necessarily
established in every retaliatory
discharge case). Only where the evidence
offered by the plaintiff, if believed,
would support a finding of malice, should
a jury be given instructions on punitive
damages. See Cirrincione v. Johnson, 703
N.E.2d 67, 70-71 (Ill. 1998).
According to Brandon’s version of the
events, when he told APMA’s shareholders
that they could not terminate him in
response to his complaints, they
dismissed him as "fucked" because he did
not have a written contract and they told
him, "We can do what we want with you."
They fabricated complaints and made false
evaluations of his job performance. They
also took steps to prevent him from
filing suit, threatening to make it
difficult for him to find another job.
Rather than responding appropriately to
Brandon’s complaints, the shareholders
began a series of verbal and written
communications in which they threatened
to discharge him if he did not stop
complaining about their billing
procedures. These kinds of threats,
harassment, and coercive tactics show a
wilful and wanton disregard for Brandon’s
rights to investigate and report illegal
conduct and therefore could support a
jury award of punitive damages. See Cox
v. Doctor’s Assocs., Inc., 613 N.E.2d
1306, 1328 (Ill. App. Ct. 1993).
IV
Even though the tort of retaliatory
discharge is a narrow exception to
Illinois’s doctrine of at-will
employment, in appropriate cases it
protects important public policies.
"There is no public policy more important
or more fundamental than the one favoring
the effective protection of the lives and
property of citizens," Palmateer, 421
N.E.2d at 879, and APMA’s discharge of
Brandon for complaining about Medicare
fraud violated this policy. Accordingly,
we Reverse the district court’s grant of
judgment as a matter of law in favor of
the defendant and we Remand for
Reinstatement of the jury verdict in this
case. We Remand for a jury trial on
punitive damages. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2995467/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2041
United States of America,
Plaintiff-Appellee,
v.
Rodriguez D. Jones,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 00-CR-30070 Jeanne E. Scott, Judge.
Argued November 30, 2001--Decided December 28, 2001
Before Flaum, Chief Judge, and Cudahy and
Manion, Circuit Judges.
Flaum, Chief Judge. A jury convicted
Rodriguez Jones of conspiring to
distribute crack cocaine. Jones appeals,
arguing that the government failed to
prove a conspiracy for the time period
alleged in the indictment, and that the
district court erred in denying a motion
to suppress evidence. For the reasons
stated herein, we affirm.
I. Background
Jones was a Chicago resident and a
member of the Gangster Disciples street
gang. In January 1999, Jones asked Huey
Whitley if he would join him in selling
crack cocaine in Springfield, Illinois,
where a better opportunity existed to
deal crack. Whitley agreed, and the two
relocated to Springfield. On numerous
occasions, Jones and Whitley traveled to
Chicago, where they purchased crack
cocaine, transported it back to
Springfield, and distributed it for sale.
Jones and Whitley decided that their
venture was worthy of expansion, and they
began pooling money with two other
individuals, Casey Jones and McCall
Cleveland. Jones and Whitley took the
pooled funds to Chicago, where they
obtained crack cocaine. Upon return to
Springfield, Jones divided the crack
among himself, Whitley, Cleveland and
Casey Jones.
In March 1999, law enforcement officers
began investigating Jones and his
cohorts. During that month, Springfield
police officers searched the trash of the
residence where the four individuals
conducted their drug dealing business.
This search revealed various drug
distribution paraphernalia, including 62
plastic bags, some of which contained
cocaine residue. Several days later,
officers stopped Jones for a traffic
violation. A search of the automobile
produced a loaded .22 caliber pistol. The
officers arrested Jones and subsequently
performed a search incident to the
arrest, which revealed approximately
$7,000 in cash stashed in Jones’s shoe.
Despite his encounter with authorities,
and possibly as a result of a personal
conflict with Whitley, Jones decided to
recruit additional help to continue his
business. He contacted Gabriel Folks,
Jonathan Norris and Denver Wheeler and
asked them to sell crack cocaine in
Springfield. Once there, the four men
adhered to Jones’s earlier practices,
traveling to Chicago to purchase crack
and returning to Springfield to sell it.
Unfortunately for Jones, law enforcement
authorities adhered to their earlier
practices as well, searching trash bags
retrieved from a residence where drug
dealing activity occurred and
subsequently executing a search warrant
on the residence. This time, officers
seized a loaded revolver, approximately
80 grams of crack cocaine, a digital
scale, several varieties of plastic bags,
and various documents containing Jones’s
name. Officers immediately arrested Folks
and Norris who were in the house during
the search, and Norris agreed to
cooperate with the government.
In October 1999, Jones began a
relationship with Tonya Gephardt, who had
previously dated Charles Cleveland.
During her relationship with Cleveland,
Gephardt had met Jones and also had
witnessed the sale of crack cocaine. From
October 1999 through January 2000,
Gephardt and Jones traveled to Chicago
once or twice per week to purchase crack
cocaine for distribution in Springfield.
On return trips to Springfield, Jones
asked Gephardt to conceal the crack
cocaine in her vagina, and Gephardt
complied with this request. Gephardt also
accompanied Jones when he sold crack
throughout Springfield.
Although his initial partners had been
arrested, Jones continued dealing until
December 10, 1999. On that day, FBI
Special Agent Steve Bennet was conducting
surveillance when he observed Jones run a
stop sign and turn without signaling.
Springfield police officers then stopped
Jones’s car, determined that he did not
have proper proof of insurance and issued
several citations for the traffic
violations. Officers also requested a
certified canine unit, which arrived on
the scene within approximately 13
minutes. When the canine unit arrived,
officers noticed that Jones had curbed
his car near several puddles, which would
impede the dog’s movement around the car.
Rather than force the dog to traipse
through puddles, a member of the
Springfield Police Department entered
Jones’s automobile and moved it forward
approximately five feet. The drug-
sniffing dog then cased the exterior of
the vehicle and alerted officers to the
presence of narcotics. A search of this
particular area of the car revealed a
small amount of marijuana. Officers
arrested Jones and conducted a search
incident to the arrest, finding
approximately $3,000 in Jones’s shoe.
A grand jury indicted Jones on September
8, 2000, and charged him with conspiracy
to distribute crack cocaine. The
indictment alleged that the conspiracy
continued until at least January 2000.
Jones moved to suppress evidence related
to the December 10 traffic stop, arguing
that the officer illegally searched
Jones’s vehicle when he moved it to
accommodate the canine unit. Following a
hearing, the district court denied the
motion, acknowledging that the entry into
the vehicle was most likely improper, but
stating that the search produced no
evidence. Only after the drug-sniffing
dog produced probable cause did officers
search Jones’s vehicle.
At trial, the government presented
testimony from several witnesses who had
participated in the conspiracy, including
Wheeler, Norris, Whitley and Gephardt.
Jones moved to strike Gephardt’s
testimony in its entirety, maintaining
that the events she described necessarily
occurred after the termination of the
conspiracy because all of the co-
conspirators were incarcerated or
cooperating with the government by June
1999. Jones argued that the government
introduced Gephardt’s testimony to extend
the length of the conspiracy, thus
allowing the prosecution to admit
theevidence from the December 10 traffic
stop. The district court denied Jones’s
motion to strike. The jury returned a
guilty verdict, and Jones appeals.
II. Discussion
Jones raises two issues on appeal.
First, he claims that the government
failed to prove a single conspiracy that
lasted beyond June 1999. If the
conspiracy ended in June 1999, Jones
reasons, then admitting Gephardt’s
testimony was so prejudicial as to
warrant a new trial. Second, Jones
contends that the trial court improperly
denied his motion to suppress evidence
stemming from the December 10 traffic
stop. We address each issue below.
A. Alleged Variance Between Indictment
and Proof at Trial
Jones first argues that the government
never established beyond a reasonable
doubt that Jones was a member of a
conspiracy to distribute crack cocaine
for the entire period alleged in the
indictment, that is, until January 2000.
According to Jones, two prejudicial
consequences flow from this expansion of
the length of the conspiracy: (1) it
allowed the government to introduce
Gephardt’s testimony, which should have
been treated as a wholly separate
conspiracy; and (2) it enabled the
government to introduce the evidence
obtained during the December 10, 1999
traffic stop.
Generally, a defendant claiming a
variance between the indictment and the
proof at trial "will succeed in obtaining
reversal of his conviction only if he
establishes that (1) the evidence
presented at trial was insufficient to
support the jury’s finding of a single
conspiracy, and (2) he was prejudiced by
the variance." United States v. Mojica,
185 F.3d 780, 786 (7th Cir. 1999)
(quoting United States v. Curtis, 37 F.3d
301, 305 (7th Cir. 1994)). We are unable
to agree that the government failed to
introduce evidence supporting a single
conspiracy. Moreover, even if Jones did
engage in two separate conspiracies--
which he did not--any alleged error was
harmless given the overwhelming evidence
against him.
Initially, the government provided
sufficient evidence to prove a single
conspiracy. In defining a conspiracy,
this Court looks to "the nature of the
agreement." United States v. Marhsall,
985 F.2d 901, 907 (7th Cir. 1993). So
long as the evidence demonstrates that
the co-conspirators embraced a common
criminal objective, a single conspiracy
exists, even if the parties do not know
one or another and do not participate in
every aspect of the scheme. See United
States v. Magana, 118 F.3d 1173, 1186
(7th Cir. 1997) (citing United States v.
Briscoe, 896 F.2d 1476, 1507 (7th Cir.
1990)). In contrast, multiple
conspiracies exist when there are
separate agreements that effectuate
distinct purposes. United States v.
Thornton, 197 F.3d 241, 254 (7th Cir.
1999).
In this case, there was ample evidence
to support the jury’s finding of a single
conspiracy. Jones does not dispute the
fact that the government provided
sufficient evidence to prove a conspiracy
for the period ending in May 1999. In
fact, in his brief, Jones states that
"the evidence adduced at trial, viewed in
the light most favorable to the
government, established that the
defendant participated in a conspiracy to
distribute cocaine through May 1999."
However, according to Jones, the only
evidence of a conspiracy from June 1999
through January 2000 derives from Tonya
Gephardt’s testimony, which the district
court improperly admitted over Jones’s
objection. Jones notes that by June 1999
Jonathan Norris, Denver Wheeler and
Gabriel Folks either were incarcerated or
had agreed to cooperate with the
government. As a result, Jones claims
that all of his co-conspirators
necessarily withdrew from the conspiracy
by the end of 1999.
Jones bases his assertion on the
incorrect premise that Norris, Wheeler
and Folks were the only co-conspirators
involved in Jones’s scheme. The
indictment against Jones specified only
that he conspired with "others" to
distribute crack cocaine, which certainly
does not mean that the conspiracy could
not involve individuals other than
Norris, Wheeler and Folks. Indeed, the
evidence at trial proved that Huey
Whitley, Casey Jones and McCall Cleveland
participated in the conspiracy as well.
So, too, did Tonya Gephardt, who traveled
with Jones to Chicago, hid crack cocaine
in her vagina on the return trip, and
accompanied Jones while he sold crack in
Springfield.
Faced with this testimony, Jones
contends that the government conceded
during sentencing that Tonya Gephardt was
not a member of the conspiracy. Jones
maintains that this concession
necessarily precludes a finding of
criminal activity beyond June 1999
because Gephardt provided the only
testimony regarding the conspiracy past
that time. This argument requires further
explanation. United States Sentencing
Guideline sec.3B1.1 enhances a sentence
when the conspiracy involved five or more
participants. At sentencing, the
prosecutor noted that the Probation
Office applied a four level enhancement
based upon sec.3B1.1 because the
conspiracy involved more than five
individuals. The prosecutor acknowledged
that the evidence at trial did not
necessarily establish that one
individual, Huey Whitley, was a member of
the conspiracy. Because Whitley was one
of the individuals counted in the
probation report, and because the
enhancement did not affect the sentencing
range, the prosecutor stated:
I know there was testimony at the trial
that [other individuals] were involved in
the offense, but there certainly wasn’t
as much detail with respect to their
particular role like Mr. Wheeler and Mr.
Folks and Mr. Norris. And while I think
it is certainly reasonable to come to
that four level enhancement, Your Honor,
given that we’re talking about a life
sentence here, my thought was that to be
as cautious as possible, two levels would
certainly be more than sound, and that’s
why I came to that conclusion.
Sent. Tr. At 8-9. This is hardly a
concession that Gephardt (or others) did
not participate in the conspiracy. While
the government never formally charged
Gephardt, she testified in some detail
that Jones continued his practice of
traveling to Chicago, purchasing crack,
and distributing it in Springfield. Thus,
the jury’s finding is not "insufficient
to support the jury’s finding of a single
conspiracy. Mojica, 185 F.3d at 786.
While we hold that the evidence was
sufficient to prove a single conspiracy,
we also note that any alleged error in
this case was harmless. Jones’s
allegation that Gephardt’s testimony
prejudiced him does not withstand
scrutiny. Despite Gephardt’s testimony,
the jury considered the following:
testimony from Wheeler, Norris and
Whitley, recorded conversations between
Jones and Norris, evidence from two
traffic stops, and physical evidence
seized during the searches of residences
where Jones dealt drugs. In short, the
evidence against Jones during the period
between March 1999 and June 1999 was
overwhelming, and there can be no
question that Jones participated in a
conspiracy to deal crack cocaine. See
United States v. Monzon, 869 F.2d 338,
345 (7th Cir. 1989). As a result, Jones
cannot establish that he suffered any
prejudice from the alleged error. See
United States v. Noble, 754 F.2d 1324,
1330 (7th Cir. 1985).
B. Denial of Motion to Suppress
Jones also argues that the district
court erred in denying his motion to
suppress evidence seized during the
December 10, 1999 traffic stop. Jones
maintains that the officer’s entry into
his vehicle was an illegal search, and
the district court should have suppressed
all evidence subsequently obtained. In
support of this proposition, Jones relies
exclusively on People v. Fulton, 683
N.E.2d 154 (Ill. App. Ct. 1997). In that
case, officers stopped the defendant for
a traffic violation and arrested him for
driving without a valid license and
without proof of insurance. The defendant
did not consent to a search of the
vehicle, but officers searched the
interior of the defendant’s car. After
that initial search, one officer entered
the vehicle, drove it to the police
station and noticed a clear plastic bag
protruding from the air vent. He removed
the vent and discovered a bag containing
cocaine. Id. at 156. In reversing the
trial court’s denial of defendant’s
motion to suppress, the Illinois
Appellate Court held that the officers
did not have a warrant, probable cause,
or the defendant’s consent to search the
car. Id. at 157. Moreover, the court
refused to accept the State’s "exigent
circumstances" argument, noting that the
record contained no evidence that the
location where the defendant curbed his
car was dangerous or illegal. Id.
Beyond the limited precedential value of
Fulton before this Court, that case is
distinguishable from the present
circumstances in one critical respect.
The officers in this case had probable
cause to search the particular area of
the vehicle once the canine alerted
officers to the presence of narcotics.
See United States v. Ward, 144 F.3d 1024,
1031 (7th Cir. 1998) ("The DEA did not
intrude upon Ward’s privacy interest by
opening the bag until after the canine
had alerted to the bag, supplying
probable cause for the warrant which
authorized a search of the bag’s
contents."). Thus, unlike the search in
Fulton, the officers here clearly had
probable cause to search Jones’s vehicle
because the canine unit detected the
presence of marijuana. The initial
"search" (if it even was a search)
produced no evidence whatsoever. The
Fourth Amendment prohibits only those
searches that are unreasonable. Illinois
v. Rodriguez, 497 U.S. 177, 183 (1990).
While it is true that the district court
noted that the officer’s entry into
Jones’s vehicle was "improper," that is
not the search that this Court must exam
ine for reasonableness. Instead, we must
focus on the limited search that occurred
after the canine unit provided probable
cause. As discussed above, that search
was entirely reasonable under the Fourth
Amendment.
III. Conclusion
Jones suffered no prejudice from alleged
variances between the indictment and the
proof at trial, and the district court
acted properly in denying his motion to
suppress evidence. For the foregoing
reasons, we AFFIRM the decision of the
district court. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2995482/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4268
Norman Shropshear,
Plaintiff-Appellant,
v.
Corporation Counsel of
the City of Chicago, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 1066--Joan B. Gottschall, Judge.
Submitted August 14, 2001--Decided December 20, 2001
Before Posner, Ripple, and Diane P. Wood,
Circuit Judges.
Posner, Circuit Judge. Norman Shropshear
brought this suit under 42 U.S.C. sec.
1983, charging that the demolition of his
home by the City of Chicago in March of
1997 had deprived him of property without
due process of law. The suit was not
filed until February of 2000, however,
almost three years after the demolition,
and the district court dismissed it as
barred by Illinois’s two-year statute of
limitations for personal-injury suits.
735 ILCS 5/13-202. That is the statute of
limitations that the federal courts
"borrow" for use in section 1983 suits
filed in Illinois. Henderson v. Bolanda,
253 F.3d 928, 931 (7th Cir. 2001);
Farrell v. McDonough, 966 F.2d 279, 282
(7th Cir. 1992); see Wilson v. Garcia,
471 U.S. 261, 275-76 (1985).
Shropshear argues that the statute of
limitations should be tolled for him on
grounds of fraudulent concealment and
equitable tolling. It is well to
distinguish at the outset between the two
fundamental doctrines of tolling,
equitable tolling and equitable estoppel.
See Cada v. Baxter Healthcare Corp., 920
F.2d 446, 450-51 (7th Cir. 1990).
Equitable tolling permits a plaintiff to
avoid the bar of the statute of
limitations if despite the exercise of
all due diligence he is unable to obtain
vital information bearing on the
existence of his claim. In contrast, the
doctrine of equitable estoppel comes into
play if the defendant takes active steps
to prevent the plaintiff from suing in
time, as by promising not to plead the
statute of limitations. Equitable
estoppel in the limitations setting is
sometimes (though confusingly, as we’re
about to see) called fraudulent
concealment but must not be confused with
efforts by a defendant in a fraud case to
conceal fraud. Fraudulent concealment in
the law of limitations presupposes that
the plaintiff has discovered or, as
required by the discovery rule should
have discovered, that the defendant
injured him. It denotes efforts by the
defendant, above and beyond the
wrongdoing upon which the plaintiff’s
claim is founded, to prevent, by fraud or
deception, the plaintiff from suing in
time.
As far as equitable tolling is
concerned--the principle that even if the
defendant is not responsible for the
plaintiff’s failure to sue within the
limitations period, the latter can get an
extension of time within which to sue if
it would have been unreasonable to expect
him to be able to sue earlier, e.g.,
Hentosh v. Herman M. Finch University of
Health Sciences, 167 F.3d 1170, 1174 (7th
Cir. 1999); Miller v. Runyon, 77 F.3d
189, 191 (7th Cir. 1996)--an essential
element is that the plaintiff have
exercised due diligence; in other words
that he have acted reasonably. E.g.,
Elmore v. Henderson, 227 F.3d 1009, 1013
(7th Cir. 2000) ("[the plaintiff] could
not possibly invoke the doctrine of
equitable tolling unless he sued just as
soon as possible after the judge’s action
made him realize that the statute of
limitations had run. He waited four
months to sue and has offered no excuse
for the delay"); Ashafa v. City of
Chicago, 146 F.3d 459, 463-64 (7th Cir.
1998). The Illinois cases also require
due diligence by the plaintiff who
charges fraudulent concealment, Turner v.
Nama, 689 N.E.2d 303, 309 (Ill. App.
1997); Nickels v. Reid, 661 N.E.2d 442,
449 (Ill. App. 1996); Bank of Ravenswood
v. Domino’s Pizza, Inc., 646 N.E.2d 1252,
1261-62 (Ill. App. 1995); In re Marriage
of Halas, 527 N.E.2d 474, 478 (Ill. App.
1988), which seems odd, since there is no
defense of contributory negligence to
fraud, an intentional tort. However that
may be (more on this later), the
requirement of due diligence by a
plaintiff seeking to invoke equitable
tolling strikes the proper balance
between innocent defendant and innocent
plaintiff. Shropshear flunks equitable
tolling, therefore, because he admits
having waited for more than a year to
inquire whether his lawyer had filed suit
and another five months after that to
file suit himself. See Butler v. Mayer,
Brown & Platt, 704 N.E.2d 740, 745-46
(Ill. App. 1998); Nickels v. Reid, supra,
661 N.E.2d at 449; Elmore v. Henderson,
supra, 227 F.3d at 1013.
We have been citing both state and
federal cases on equitable tolling, but
we should consider which actually govern
cases in which the limitations period is
borrowed from state law for use in a suit
based on federal law. The question is
unresolved in this circuit, as noted in
Ashafa v. City of Chicago, supra, 146
F.3d at 464 n. 1, and Reed v. Mokena
School District No. 159, 41 F.3d 1153,
1155 n. 1 (7th Cir. 1994), owing to a
conflict in our cases. Compare Gonzalez
v. Entress, 133 F.3d 551, 554 (7th Cir.
1998), with Suslick v. Rothschild
Securities Corp., 741 F.2d 1000, 1004
(7th Cir. 1984), overruled on other
grounds by Short v. Belleville Shoe Mfg.
Co., 908 F.2d 1385 (7th Cir. 1985); Cange
v. Stotler & Co., 826 F.2d 581, 587 n. 4
(7th Cir. 1987), and Smith v. City of
Chicago Heights, 951 F.2d 834, 841-42
(7th Cir. 1992). The question is
important, because the federal doctrine
may be broader than the state one.
Indeed, we have expressed uncertainty
that the doctrine of equitable tolling
even exists in Illinois. Athmer v. C.E.I.
Equipment Co., 121 F.3d 294, 297 (7th
Cir. 1997); Reed v. Mokena School
District No. 159, supra, 41 F.2d at 1155
n. 1; Singletary v. Continental Ill.
Nat’l Bank & Trust Co., 9 F.3d 1236, 1242
(7th Cir. 1993). In contrast, the federal
doctrine is well established. Taliani v.
Chrans, 189 F.3d 597, 597-98 (7th Cir.
1999). Another example of divergence,
though not one involved in this case,
concerns whether limitations periods for
prisoner civil rights suits under the
same federal statute involved in this
case, 42 U.S.C. sec. 1983, are equitably
tolled for the time required for the
prisoner to exhaust his state remedies
and for the period during which the
plaintiff is in prison. Compare Schweihs
v. Burdick, 96 F.3d 917, 919 (7th Cir.
1996), with Brown v. Morgan, 209 F.3d 595
(6th Cir. 2000), and Harris v. Hegmann,
198 F.3d 153, 158-59 (5th Cir. 1999) (per
curiam); see also Leal v. Georgia Dept.
of Corrections, 254 F.3d 1276, 1280 (11th
Cir. 2001) (per curiam).
We now hold, in conformity with all the
appellate cases in other circuits that
have addressed the issue, that the state,
rather than the federal, doctrine of
equitable tolling governs cases of
borrowing. See Wade v. Danek Medical,
Inc., 182 F.3d 281, 289-90 (4th Cir.
1999); Tworivers v. Lewis, 174 F.3d 987,
992-93 (9th Cir. 1998); Rotella v.
Pederson, 144 F.3d 892, 897 (5th Cir.
1998); Gonsalves v. Flynn, 981 F.2d 45,
47-48 (1st Cir. 1992) (per curiam); see
generally Cange v. Stotler & Co., supra,
826 F.2d at 586-87; but cf. Lake v.
Arnold, 232 F.3d 360, 370 (3d Cir. 2000);
Vaught v. Showa Denko K.K., 107 F.3d
1137, 1145 (5th Cir. 1997). The reason is
the reciprocal relation between the
length of the limitations period and the
grounds for tolling (extending) it. E.g.,
Wilson v. Garcia, 471 U.S. 261, 269
(1985); Chardon v. Fumero Soto, 462 U.S.
650, 661-62 (1983); Board of Regents v.
Tomanio, 446 U.S. 478, 484-86 (1980);
Johnson v. Railway Express Agency, Inc.,
421 U.S. 454, 463-64 (1975); Cange v.
Stotler, supra, 826 F.2d at 599-600
(concurring opinion). A state might
decide to set a short period but allow
generous tolling, or a long period in
lieu of generous tolling. If the federal
courts used the short period in
conjunction with a tolling doctrine less
generous than that of the state that had
set the period, or the long period in
conjunction with a tolling doctrine more
generous than that of the state, it would
be creating an irrational hybrid. See,
besides the cases just cited, Spinozzi v.
ITT Sheraton Corp., 174 F.3d 842, 848
(7th Cir. 1999); Lewellen v. Morley, 875
F.2d 118, 121 (7th Cir. 1989); Hemmings
v. Barian, 822 F.2d 688, 691 (7th Cir.
1987); Lake v. Arnold, supra, 232 F.3d at
370, and cases cited there; Tworivers v.
Lewis, supra, 174 F.3d at 992; Vaught v.
Showa Denko K.K., supra, 107 F.3d at
1145; Mouradian v. John Hancock Cos., 930
F.2d 972, 974 (1st Cir. 1991) (per
curiam). The tolling rule is a "part of
the legislative balancing of the
conflicting interests of enforcement
versus staleness of claims embodied in
statutes of limitations." Cange v.
Stotler, supra, 826 F.2d at 587.
Because of the intracircuit conflict
noted earlier, our opinion has been
circulated to the full court in advance
of publication, in accordance with 7th
Cir. R. 40(e). No judge of the court in
regular active service voted to hear the
case en banc.
We turn now to the question of the
possible tolling of the statute of
limitations in this case on the basis of
defendant misconduct, the domain of
fraudulent concealment and equitable
estoppel. Illinois has codified its
doctrine of fraudulent concealment in a
statute which provides that "if a person
liable to an action fraudulently conceals
the cause of such action from the
knowledge of the person entitled thereto,
the action may be commenced at any time
within 5 years after" the entitled person
discovers that he has such a cause of
action. 735 ILCS 5/13-215. This can’t
help Shropshear. He complains not that
the City of Chicago, but that his own
lawyer (and another private entity not
argued to be in privity with the City),
in effect concealed his claim from him by
misrepresenting that they would file a
timely suit on his behalf. Neither of the
alleged concealers was "a person liable
to an action"--that was the City--and so
their conduct cannot bring Shropshear
within the protection of the fraudulent-
concealment statute. Serafin v. Seith,
672 N.E.2d 302, 312 (Ill. App. 1996).
Anyway they didn’t conceal the cause of
action; they concealed their own failure
to file the suit in time, though probably
Illinois’s doctrine of fraudulent
concealment is not so narrowly
interpreted that the difference would be
crucial in a proper case. See id. at 311.
If the defendant, while not concealing
from the plaintiff anything but his bad
intent, tells the latter to delay suing
while the parties work things out, this
is not fraudulent concealment within the
strict terms of the Illinois statute that
we cited earlier. But it furnishes
another basis for tolling, namely
equitable estoppel, the master concept of
which fraudulent concealment is one
instantiation. Singletary v. Continental
Ill. Nat’l Bank & Trust Co., supra, 9
F.3d at 1241. Any deliberate or otherwise
blameworthy conduct by the defendant that
causes the plaintiff to miss the
statutory deadline can be the basis for a
defense of equitable estoppel in federal
limitations law. The Serafin case that we
cited in the preceding paragraph
describes equitable estoppel as a
doctrine of Illinois law as well, but
without relating it specifically to the
fraudulent-concealment statute. Other
cases also describe it as a doctrine of
Illinois law. See Beaudette v. Industrial
Comm’n, 719 N.E.2d 191, 193-94 (Ill. App.
1999); Tegeler v. Industrial Comm’n, 672
N.E.2d 1126, 1131 (Ill. App. 1996); see
also Turner v. Nama, supra, 689 N.E.2d at
308. There is a federal doctrine as well,
of course; under it the plaintiff’s lack
of due diligence is not a defense,
because the defendant’s conduct is
deliberate, just as a plaintiff’s
contributory negligence is not a defense
to an intentional tort. Flight Attendants
Against UAL Offset v. Commissioner, 165
F.3d 572, 577 (7th Cir. 1999); Wolin v.
Smith Barney Inc., 83 F.3d 847, 852 (7th
Cir. 1996). There is an important
exception, however (to which we’ll
return): once the circumstance giving
rise to the estoppel is removed--once,
for example, despite the defendant’s
efforts at concealment, the plaintiff
learns that he has a claim--the filing of
the suit cannot be delayed indefinitely.
Bailey v. Int’l Brotherhood of
Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, Local
374, 175 F.3d 526, 530 (7th Cir. 1999).
We noted earlier that lack of due
diligence is a defense under Illinois’s
doctrine of fraudulent concealment; it
likewise is a defense under Illinois’s
umbrella doctrine of equitable estoppel.
E.g., Nickels v. Reid, supra, 661 N.E.2d
at 447-48. This is an important
difference between the state and federal
doctrines of equitable estoppel. So once
again we face a discrepancy between
federal and state tolling rules. Our
court has held that in a case such as
this, where the federal court is applying
a (borrowed) state statute of
limitations, the federal doctrine of
equitable estoppel, not the state
doctrine, controls. Ashafa v. City of
Chicago, supra, 146 F.3d at 462; Smith v.
City of Chicago Heights, supra, 951 F.2d
at 841; Cange v. Stotler & Co., supra,
826 F.2d at 586-87; Bomba v. W.L.
Belvidere, Inc., 579 F.2d 1067, 1070 (7th
Cir. 1978). These cases say that the
source of the doctrine is not a judgment
regarding the optimal length of a
limitations period, but a general
disapproval of inequitable conduct; and
of course it is true that the doctrine of
equitable estoppel is not limited to the
statute of limitations area but has many
other applications. Nevertheless in that
setting it is a tolling doctrine and one
with uncertain boundaries (as witness the
differences between the federal and the
Illinois doctrine) that one might think
were related to the statutorily specified
length of the period.
The question whether the state or
federal doctrine governs has divided the
other courts to consider it, compare
Benitez-Pons v. Commonwealth of Puerto
Rico, 136 F.3d 54, 63 (1st Cir. 1998),
with Keating v. Carey, 706 F.2d 377, 382
(2d Cir. 1983); and both Bell v. Fowler,
99 F.3d 262, 267 n. 3 (8th Cir. 1996),
while leaving it unresolved, and the
concurring opinion in our decision in
Cange v. Stotler & Co., supra, 826 F.2d
at 599-600, criticizing our rule, note
the tension between the rule and the
Supreme Court’s decisions on borrowed
statutes of limitations, which in holding
that the federal court should borrow the
tolling rules as well as the statutory
period make no distinction between
equitable estoppel and equitable tolling.
See Wilson v. Garcia, 471 U.S. 261, 269
(1985) (state law governs "the length of
the limitations period, and closely
related questions of tolling and
application"); Board of Regents v.
Tomanio, supra, 446 U.S. at 484-86
(federal courts should borrow forum
state’s most analogous statute of
limitations as well as its body of
tolling rules); Johnson v. Railway
Express Agency, Inc., supra, 421 U.S. at
463-65 ("in virtually all statutes of
limitations the chronological length of
the limitations period is interrelated
with provisions regarding tolling,
revival, and questions of application").
However, whether this circuit’s rule
distinguishing between the two tolling
doctrines should be overruled is a matter
that we leave to another day.
Given his lack of due diligence,
Shropshear is better off with the federal
doctrine of equitable estoppel, which
doesn’t impose a general duty of due
diligence. Not enough better off to make
a difference, however. Remember that the
alleged misconduct that caused his delay
in suing was not committed by the public
officials whose alleged violation of the
Constitution gave rise to his suit.
Shropshear did name his lawyer and the
other private entity that delayed his
suit as additional defendants. But it
would be bootstrapping to allow the
limitations on the defense of equitable
estoppel to be circumvented in such a
way. Remember, too, that due diligence
becomes a duty, even under the federal
doctrine of equitable estoppel, once the
obstacles strewn by the defendant to the
plaintiff’s suing have been cleared away;
then he must act quickly; Shropshear did
not.
Affirmed.
RIPPLE, Circuit Judge, concurring. The
panel majority has written a thoughtful
opinion. I write separately for two
reasons. First, I think it would be
helpful to the bench and bar to note
precisely the point that we clarify
today. Secondly, I wish to express my
reservations about commenting
unnecessarily on the settled law of the
circuit with respect to equitable
estoppel.
At the outset, I note that today’s
decision, following this circuit’s
cornerstone opinion in Cada v. Baxter
Healthcare Corp., 920 F.2d 446 (7th Cir.
1990), makes clear the difference between
equitable tolling and equitable estoppel.
Equitable tolling permits a plaintiff to
avoid the bar of the statute of
limitations if, despite all diligence, he
is unable to obtain vital information
bearing on the existence of his claim. By
contrast, the doctrine of equitable
estoppel comes into play if the defendant
takes active steps to prevent the
plaintiff from suing in time as by
promising not to plead the statute of
limitations. Equitable estoppel in the
limitations setting is sometimes called
fraudulent concealment and must not be
confused with efforts by a defendant in a
fraud case to conceal fraud. Fraudulent
concealment in the law of limitations
presupposes that the plaintiff has
discovered or, as required by the
discovery rule, should have discovered,
that the defendant injured him. It
denotes efforts by the defendant, above
and beyond the wrongdoing upon which the
plaintiff’s claim is founded, to prevent
the plaintiff from suing in time.
The case before us involves the first of
these doctrines, the doctrine of
equitable tolling. Mr. Shropshear argues
that his own lawyer and another private
entity not in privity with the defendant
City of Chicago concealed his claim by
misrepresenting that they would file an
action on his behalf. Therefore, we must
identify the applicable law for
determining whether Mr. Shropshear can
invoke the doctrine of equitable tolling.
The majority opinion, clarifying the law
of this circuit and harmonizing that law
with the law of all other circuits that
have addressed the matter, holds that,
because we must borrow state law with
respect to the statute of limitations, we
also must borrow state law on the
doctrine of equitable tolling. I do not
think that there is very much in the way
of a serious dispute on this issue. As
the panel opinion makes clear, the reason
for this symmetry is that there is a
reciprocal relationship between the
length of the limitations period and the
grounds for extending it. See generally
Cange v. Stotler & Co., 826 F.2d 581,
586-87 (7th Cir. 1987).
However, there has been some confusion
as to whether, in an equitable tolling
situation, state law ought to be the
exclusive source to which a court ought
to turn or whether the court also ought
to apply federal tolling principles. As
the court noted in Smith v. City of
Chicago Heights, 951 F.2d 834, 840 & n.6
(7th Cir. 1992), this issue can be traced
back to the court’s holding in Suslick v.
Rothschild Securities Corp., 741 F.2d
1000, 1004 (7th Cir. 1984) (holding that
both state and federal rules of equitable
tolling should be applied when a state
statute of limitations is employed),
overruled on other grounds by Short v.
Belleville Shoe Mfg. Co., 908 F.2d 1385
(7th Cir. 1985); see also Cange, 826 F.2d
at 587 n.4 (noting in dicta the holding
of Suslick in this circuit). In Smith,
the court acknowledged the rule in
Suslick and applied it because it
remained the law of the circuit. See
Smith, 951 F.2d at 840. By contrast, in
Gonzales v. Entress, 133 F.3d 551, 554
(7th Cir. 1998), the court simply applied
state tolling law without a discussion of
the rule in Suslick. If there is an
intracircuit conflict, it is on this
question, simply because Smith did not
overrule Suslick and Gonzales did not
speak to the problem. It is this
piggybacking issue to which the court
also made reference in Ashafa v. City of
Chicago, 146 F.3d 459, 463-64 (7th Cir.
1998); see also Reed v. Mokena Sch. Dist.
No. 159, 41 F.3d 1153, 1155 n.1 (7th Cir.
1994).
Today, we take the view that only state
tolling rules ought to apply. Application
of both state and federal rules destroys
the symbiotic relationship between the
period set forth in the statute of
limitations and the tolling rule. As we
noted in Cange, the tolling rule is a
"part of the legislative balance of
conflicting interests of enforcement and
staleness of claims embodied in statutes
of limitations." 826 F.2d at 587.
If the panel opinion were to end at this
point, I would have no objection to its
content. My colleagues have chosen,
however, to express their views on
whether state law should also govern with
respect to equitable estoppel. The
concept of equitable estoppel is not at
issue in this case. As the court
acknowledged in Ashafa, we have held that
federal, not state, standards apply when
this doctrine is applicable. Ashafa, 146
F.3d at 462; see also Smith, 951 F.2d at
841. In Cange, 826 F.2d at 586-87, and
earlier in Bomba v. W.L. Belvidere, Inc.,
579 F.2d 1067, 1070 (7th Cir. 1978), the
court noted that the concept of equitable
estoppel is not tied to the legislative
judgment on the length of the statute of
limitations. Rather, it focuses on the
circumstances that will justify
preventing a party from relying on the
statute of limitations because that
party’s conduct has induced another into
forbearing suit within the applicable
statute of limitations period. As the
court wrote in Bomba, the doctrine "takes
its life, not from the language of the
statute, but from the equitable principle
that no man will be permitted to profit
from his own wrongdoing in a court of
justice." 579 F.2d at 1070. Because this
issue is not before us and has not been
briefed by the parties, I believe that a
proper respect for the work of our
colleagues in prior cases and for the
stability of the law in this circuit
requires that we refrain from commenting
on the matter. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2995323/ | In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-1110, 01-1111 & 01-1185
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
AHMAD BISHAWI, ADOLPH BRADLEY
and CARLAN D. HODGES,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Illinois.
Nos. 97-40044, 98-30149 & 99-40009-- Richard Mills,/1 Judge.
Argued September 7, 2001--Decided November 14, 2001
Before BAUER, EASTERBROOK and MANION,
Circuit Judges.
BAUER, Circuit Judge. The three
defendants-appellees in this case were
convicted and sentenced following
individual jury trials over which former
District Judge Paul E. Riley presided.
Each of the three appellees appealed
their convictions and/or sentences, and
while these direct appeals were pending,
Judge Riley left the bench. Subsequent to
Judge Riley’s retirement, all three
appellees filed motions for new trials
pursuant to Federal Rule of Criminal
Procedure 33, claiming that Judge Riley
engaged in improper ex parte
communications with the juries before
whom their cases were tried. Judge
Richard Mills adjudicated the new trial
motions, granting all of the appellees
new trials without any evidentiary
hearings or oral argument. The appellees’
cases were consolidated for this appeal.
For the following reasons, we VACATE the
granting of appellees’ motions for new
trials and REMAND for further proceedings.
I. Background
On December 7, 1999, the Chief Judge of
the Southern District of Illinois, J.
Phil Gilbert, sent letters to the
defendants-appellees, by way of their
separate counsel, informing them that
Judge Riley had ex parte contact with
deliberating jurors in each of their
cases. The letters did not specify or
otherwise identify the nature of the
referenced ex parte communications. Judge
Gilbert sent these notifications after
receiving information regarding ex parte
contacts between Judge Riley and certain
deliberating juries discovered during the
process of reassigning Judge Riley’s
cases. Lawyers for the appellees as well
as government counsel were given files
containing the portions of such informa-
tion relevant to each of their respective
cases on January 11, 2000. On the bases
of this information, which is summarized
below, Judge Mills granted the appellees
new trials on August 28, 2000.
A) Ahmad Bishawi
Specific to the Bishawi case, the
information file provided by Judge
Gilbert included a note from the jury
asking to view a particular exhibit, to
which Judge Riley replied in longhand
that the jury had all exhibits introduced
at trial in their possession. Also
included was a typewritten note from the
court reporter, Brenda Orsborn, and a
memorandum to file from Judge Gilbert,
both of which indicated that no jury
notes were ever made of record with
counsel. Lastly, the file contained
summaries of interviews conducted by
Judge Gilbert with the court security
officer, Glenn Wright, and one of Judge
Riley’s law clerks, David Agay. According
to these interview summaries, Mr. Wright
and Mr. Agay each recalled that Judge
Riley communicated with deliberating
juries ex parte, but neither could
specify when such communications occurred
or what was said.
B) Adolph Bradley
Among the information provided by Judge
Gilbert to parties interested in the
Bradley case was a jury note, which
sought clarifications of particular jury
instructions. Typewritten at the bottom
of that note was: "Three attached
instructions given to the jurors,
12/17/98." Judge Gilbert’s file
memorandum indicated that after this note
was made of record with the attorneys,
Judge Riley proceeded to the jury room to
speak with the jurors. Beyond the
transcript of this conversation, the only
other noteworthy information provided in
Bradley were summaries of interviews with
Mr. Wright and Mr. Agay that mirrored
those contained in the Bishawi file.
C) Carlan D. Hodges
In Hodges, the file provided by Judge
Gilbert included two pages of notes sent
by the jury to Judge Riley during
deliberations as well as Judge Riley’s
answers to the same. The record reveals
that Judge Riley informed and consulted
with all interested parties before having
his written responses to these notes
delivered to the jury. The Hodges file
also included the same summaries of
interviews with Mr. Wright and Mr. Agay
provided in the Bishawi and Bradley
cases.
II. Discussion
We review the grant of a motion for a
new trial under the abuse of discretion
standard. United States v. Boyd, 55 F.3d
239, 242 (7th Cir. 1995). However, as the
appellant points out, this Court has
recognized that application of the defer
ential abuse of discretion standard to a
successor judge who granted a new trial
based upon review of a cold record may
not be warranted. Bankcard America, Inc.
v. Universal Bankcard Sys., Inc., 203
F.3d 477, 481 (7th Cir. 2000). Indeed,
the question of whether a lesser standard
of review is proper here was extensively
briefed by the parties. Because we find
that in these circumstances it was an
abuse of discretion to grant defendants-
appellees’ motions for new trials without
evidentiary hearings or any oral
argument, we need not engage in a
hypothetical discussion regarding the
applicability of a lesser standard of
review to the decisions of the successor
judge who reviewed the records in
appellees’ cases.
"[T]he mere occurrence of an ex parte
conversation between a trial judge and a
juror does not constitute a deprivation
of any constitutional right. The defense
has no constitutional right to be present
at every interaction between a judge and
a juror, nor is there a constitutional
right to have a court reporter transcribe
every such communication." Rushen v.
Spain, 464 U.S. 114, 119 (1983) (Stevens,
J., concurring in judgment); see also
Verdin v. O’Leary, 972 F.2d 1467, 1481-82
(7th Cir. 1992) (explaining that the con
stitutional right to presence is not
implicated per se by a judge’s ex parte
communication with a deliberating jury).
Rather, the constitutional right to
presence, which derives from the Sixth
Amendment’s Confrontation Clause and the
Due Process Clause of the Fourteenth
Amendment, exists where there is a
reasonably substantial relation to the
fullness of opportunity to defend against
the charge and to the extent that a fair
and just hearing would be thwarted by the
defendant’s absence. United States v.
Gagnon, 470 U.S. 522, 526 (1985) (citing
Snyder v. Massachusetts, 291 U.S. 97,
105-06, 108 (1934)). The broader,
procedural right to be present afforded
by Federal Rule of Criminal Procedure 43
is likewise not without limits,
alleviating the presence requirement when
the proceeding involves only a conference
or hearing upon a question of law. Fed.
R. Crim. P. 43(c)(3); see also United
States v. Johnson, 859 F.2d 1289, 1294
(7th Cir. 1988) ("[A] defendant’s
presence is not required ’[a]t a
conference or argument upon a question of
law.’") (citing Rule 43(c)(3)) (emphasis
in original). Moreover, a defendant’s
absence from any trial proceeding should
be considered in light of the entire
record. United States v. Moore, 936 F.2d
1508, 1523 (7th Cir. 1991) (citations
omitted).
The defendant bears the burden of
proving the occurrence of ex parte
contact with the jury. Owen v. Duckworth,
727 F.2d 643, 646 (7th Cir. 1984). Once
established, determination of whether the
ex parte contact violates either the
defendant’s constitutional or procedural
right to presence is subject to a
harmless error analysis. See, e.g.,
Rushen, 464 U.S. at 118-19; Rogers v.
United States, 422 U.S. 35, 40 (1975). An
error is harmless, and therefore does not
mandate reversal and a new trial, unless
it affects "substantial rights." Fed. R.
Crim. P. 52(a); United States v.
Patterson, 23 F.3d 1239, 1255 (7th Cir.
1994). Substantial rights are those that
affect the outcome of the case.
Patterson, 23 F.3d at 1255. Thus, a right
to presence violation entitles the
defendant to a new trial only if the ex
parte communication at issue likely
affected the jury’s verdict. United
States v. Pressley, 100 F.3d 57, 60 (7th
Cir. 1996).
"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." Remmer v.
United States, 347 U.S. 227, 229 (1954)
(emphasis added). The presumption is, of
course, not conclusive. Id. The
prejudicial effect of an ex parte contact
is without question rebuttable by way of
showing harmless error. Id.; Rushen, 464
U.S. at 118-19; Rogers, 422 U.S. at 40.
Further, a post-trial evidentiary hearing
may be proper to determine whether any
such contact was merely harmless or in
fact prejudicial to the defendant.
Remmer, 347 U.S. at 229-30; Rushen, 464
U.S. at 119-20.
Where, as here, the record is void of
any specific information regarding the
occurrence and nature of, as well as the
circumstances surrounding the ex parte
contacts, the impact thereof upon the
jurors, and whether or not the juries
were prejudiced, a hearing in which all
interested parties are permitted to
participate is not only proper but
necessary. Remmer, 347 U.S. at 229-30;
Rushen, 464 U.S. at 119-20. The holding
of an evidentiary hearing in this case
would have afforded the parties an
opportunity to interview jurors and
determine "whether extraneous prejudicial
information was improperly brought to the
jury’s attention or whether any outside
influence was improperly brought to bear
upon any juror." Fed. R. Evid. 606. Once
these factual determinations were made,
the trial court would have been equipped
to adequately assess the impact of any ex
parte contacts on the juries before whom
appellees’ cases were tried and decide
whether or not such communications were
harmless error. Remmer, 347 U.S. at 229-
30; Rushen, 464 U.S. at 119-20.
A court faced with a post-verdict
question of jury prejudice is obligated
to ascertain and examine these basic
facts. United States v. Smith, 26 F.3d
739, 759 (7th Cir. 1994) (citing Owen v.
Duckworth, 727 F.2d at 647). To hold
otherwise would undermine the integrity
of the jury process. See United States v.
Berry, 64 F.3d 305, 307 (7th Cir. 1995)
("A jury verdict is not lightly to be
disturbed through a grant of a motion for
a new trial."); Remmer, 347 U.S. at 229-
30 ("The integrity of jury proceedings
must not be jeopardized by unauthorized
invasions."). The trial court abused its
discretion in failing to hold such a
hearing. Accordingly, we vacate the
judgments of the district court granting
defendants-appellees’ new trial motions
and remand with directions to hold an
evidentiary hearing to determine what ex
parte contact occurred and whether such
contact was prejudicial to the appellees.
III. Conclusion
The judgments are VACATED and the cases
REMANDED for further proceedings
consistent with this opinion.
FOOTNOTE
/1 Sitting by designation pursuant to an Order of
Chief Judge Posner. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2995346/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4270
EDWARD J. PASIEWICZ,
Plaintiff-Appellant,
v.
LAKE COUNTY FOREST PRESERVE DISTRICT;
RAY HENNING, individually and in his
official capacity as a Ranger/Police Officer for
the Lake County Forest Preserve District; KNUTE
SANDAHL, individually and in his official
capacity as a Ranger/Police Officer for the Lake County
Forest Preserve District; DEBRA PHILLIPS; and MICHELLE
PETERSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4988--Matthew F. Kennelly, Judge.
Argued September 10, 2001--Decided November 2, 2001
Before POSNER, KANNE, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Two women, while
out riding horses on a Sunday morning,
spotted a naked man cavorting in the
woods. Unfortunately for Edward
Pasiewicz, he was subsequently arrested
and charged with two misdemeanor counts
of "public indecency" under Illinois law
growing out of the incident. Fortunately
for Pasiewicz, he was acquitted after a
bench trial in state court on both
counts. After his acquittal, Pasiewicz
sued the officers who made the arrest,
the two women who said he was the
cavorter, and the Lake County Forest
Preserve District, the employer of the
arresting officers.
Many of the "facts" supplied by the
parties on this appeal are irrelevant to
the issues before us. We will, however,
spend a few moments wading through the
details so the issue we will ultimately
consider can be put in better focus. We
start with the Sunday morning horseback
ride.
Two women, Michelle Peterson and Deborah
Phillips, were riding horses in the
forest preserve (Van Patten Woods in Lake
County, Illinois) when they saw a naked
man standing in the middle of their
trail. This occurred around noon, and the
women reported their observations to a
forest preserve ranger/officer named
Shannon a half an hour later. Both women
said they saw the man for only a short
time, but Phillips said she got a face-
to-face view of the man before he slipped
away into the bushes. Peterson added that
the man appeared to be looking at a group
of children playing in a clearing a short
distance away. As with all descriptions,
Phillips and Peterson did not agree on
every detail, yet both essentially
described a man around 6 feet tall,
heavyset and bald, who appeared to weigh
in the neighborhood of 240 pounds and who
looked to be in his fifties.
The next day, Peterson dropped her
daughter off at the Our Lady of Humility
school where she was a kindergarten
student. While walking back to her car
(as later reported to the forest preserve
police), she noticed a man sitting in a
blue Taurus. In her mind, the man in the
car was the man she had seen in the woods
the day before.
The next day, Peterson said she saw the
same man pull into the school parking
lot. Peterson asked another woman who the
man was and was told his name was Edward
Pasiewicz and that he had children
attending Our Lady of Humility. Peterson,
indulging in a little detective work, ob
tained Pasiewicz’s address and telephone
number from the school directory and,
along with Phillips, went to the forest
preserve police and gave the identifying
information to two officers. The next
day, Ray Henning, one of the preserve
officer defendants in this suit, called
the Pasiewicz home and left his pager
number, with instructions for Pasiewicz
to get in touch with him. Pasiewicz did
so later that day, and Henning asked him
to come to the Lake County Forest
Preserve office that evening. Pasiewicz
declined the invitation but, after
confirming Henning’s identity, contacted
him the next day and said he would meet
him at Waukegan East High School, where
Pasiewicz worked in the maintenance
department. The school was, of course,
outside the physical boundaries of the
forest preserve.
Independent of Henning’s line of
inquiry, a supervising officer concluded
that Pasiewicz should be arrested. The
officer, Roy Johnson, spoke with the
women, primarily Phillips, numerous times
since the incident, and he also spoke
with other officers regarding Shannon’s
initial report. Johnson instructed
another officer, the second defendant
Knute Sandahl, to arrest Pasiewicz.
Henning and Sandahl went to the high
school, and Pasiewicz escorted them to
the athletic office. Although the
officers apparently asked Pasiewicz
whether he had been at the Our Lady of
Humility school parking lot, and
Pasiewicz said that he had, the officers
did not specifically inquire into his
whereabouts on August 30, the day
Peterson and Phillips saw the nude man in
the woods. Ten minutes into the meeting,
Sandahl informed Pasiewicz that he was
accused of public indecency and that he
was under arrest. Pasiewicz called the
accusation "unbelievable." The officers
handcuffed Pasiewicz and took him to the
Lake County jail for processing. In an
hour or so he posted a $100 bond and was
released from custody. As a result of the
arrest, Pasiewicz was suspended from his
job, his supervisor informing him that,
given the charges, it was best that he
not work around children.
After Pasiewicz’s acquittal on the
charges,/1 which came during a bench
trial after the State rested its case,
Pasiewicz filed this suit under 42 U.S.C.
sec. 1983 alleging violations of the
Fourth and Fourteenth Amendments. Another
count in the complaint named the Lake
County Forest Preserve District on a
claim that it had failed to train and
properly supervise its officers. A final
count alleged a state law claim of
defamation against Peterson and Phillips.
The district court, concluding on
summary judgment that the defendant
officers had probable cause for the
arrest as a matter of law, dismissed the
case against everyone except Phillips and
Peterson. There being no federal claim
against them, the court relinquished
jurisdiction of the final count in the
complaint to a state court forum.
Much is made, by Pasiewicz, of the
"fact" that he was an "innocent" man
unjustly accused. In some ways that’s un
derstandable. The charges brought against
him, although only misdemeanors, are
serious and stigmatizing. Had he been
charged with other misdemeanors--like
unlawful possession of fireworks,
battery, or negligent operation of a
motor vehicle, to name a few--it is
unlikely he would have been immediately
suspended from his job as a school
maintenance worker as soon as the charges
were publicly leveled. But his actual (or
just legal) "innocence" is not material
to the issue we are considering. So his
brief, where he proclaims his innocence
and goes on and on for page after page
about his whereabouts on the day the
horseback riders saw the naked man, are
beside the point.
One second-to-last word about
"innocence." In wrapping up his brief,
Pasiewicz writes that the district court
(Judge Kennelly) "found that Pasiewicz
was innocent of the crime for which he
was arrested, and likewise found that
Pasiewicz could have been spared his
ordeal if the officers had undertaken any
sort of investigation into the facts."
While the second part of this sentence
may be true, the first part isn’t: Judge
Kennelly did not find that Pasiewicz was
innocent. That wasn’t his job. A final
determination-- whether a defendant is to
be found guilty beyond a reasonable doubt
in a court of law--rests with a trier of
fact, and that was outside the scope of
the proceedings before Judge Kennelly in
the district court.
And now a last word about innocence. As
we said, Pasiewicz was acquitted in state
court after the prosecution presented its
case against him. But as far as we can
see, the accuracy of the "eyewitness
identifications," which Pasiewicz lays
out as his major beef against the
arresting officers, appears to have
played no role in that decision. As
Pasiewicz himself alleges in his amended
complaint, "the reason for the directed
verdict was that the State had absolutely
no evidence of lewd conduct on the part
of the naked man witnessed by PETERSON
and PHILLIPS in Van Patten Woods on
August 30, 1998."
So finally, although Pasiewicz seems to
have an airtight alibi--as disclosed by
depositions in this case--and might very
well have won his acquittal on that basis
in state court if the case went that far,
it came to an early end on a failure of
proof on the elements of the charge--not
because the judge said Pasiewicz was not
the man in the woods in his birthday suit
on the day in question.
So we now come to our review of the
grant of summary judgment. Our review is
de novo. Silk v. City of Chicago, 194
F.3d 788, 798 (7th Cir. 1999). The rules
governing motions for summary judgment,
as set forth in Federal Rule of Civil
Procedure 56(c), and as interpreted in
Celotex Corp. v. Catrett, 477 U.S. 317
(1986), and Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986), are familiar,
so we can skip that and get right to the
point.
Pasiewicz brings claims against Henning
and Sandahl for arresting him in
violation of the Fourth Amendment (count
I) and Fourteenth Amendment (count II).
These two amendments share a common
concern with protecting a person’s
physical liberty from government
restraint. Because the Fourth Amendment’s
requirements are more specific, "a
seizure that passes muster under the
Fourth Amendment should also satisfy the
requirements of the due process clause
viewed as an independent source of
constitutional norms." McKinney v.
George, 726 F.2d 1183, 1187 (7th Cir.
1984). Collapsing the two inquiries is
particularly appropriate here as the
parties have briefed only the
applicability of the Fourth Amendment.
Pasiewicz can find no quarter in the
Fourth Amendment. When police officers
obtain information from an eyewitness or
victim establishing the elements of a
crime, the information is almost always
sufficient to provide probable cause for
an arrest in the absence of evidence that
the information, or the person providing
it, is not credible. Sheik-Abdi v.
McClellan, 37 F.3d 1240, 1247 (7th Cir.
1994); Hebron v. Touhy, 18 F.3d 421, 422-
23 (7th Cir. 1994); Gramenos v. Jewel
Cos., 797 F.2d 432, 438-41 (7th Cir.
1986). When probable cause has been
gained from a reasonably credible victim
or eyewitness, there is no constitutional
duty to investigate further. Woods v.
City of Chicago, 234 F.3d 979, 997 (7th
Cir. 2001); Sheik-Abdi, 37 F.3d at 1247
(noting that evidence of interviews and
investigations is "not in any way a
prerequisite to a finding of probable
cause").
Sandahl and Henning had probable cause
to arrest Pasiewicz. Peterson and
Phillips both saw the naked man in broad
daylight at a close distance. They gave
similar, and fresh, descriptions of him
to Shannon less than an hour later. After
that, Peterson said she saw the same man
in the days following the incident.
Peterson provided Pasiewicz’s name,
address, and phone number based on
information she obtained from someone who
knew him, and from the school
directory./2
Although Pasiewicz’s appearance did not
match exactly the characteristics
provided by the two women, he bore a fair
resemblance. It wasn’t as if, given the
description of a fairly good-size man,
Pasiewicz looked like a guy who shopped
at Napoleon’s tailor. Moreover, any
identification discrepancies were more
than mitigated by the fact that Peterson
believed she had seen the man again. In
short, there was no indication that the
women were lying, or that their
information otherwise was not credible or
accurate. Accordingly, the officers
possessed probable cause. Woods, 234 F.3d
at 996 (finding probable cause where the
plaintiff provided no evidence that the
description of the incident lacked
accuracy or credibility).
Pasiewicz relies on BeVier v. Hucal, 806
F.2d 123 (7th Cir. 1986), arguing that
BeVier requires police officers to
conduct independent investigations before
making an arrest. In BeVier, however, the
arrestees were charged with child
neglect, a crime requiring the accused to
act "knowingly or wilfully." Id. at 126.
Although an officer saw sunburnt, filthy,
and listless children sitting in the sun
on a hot day, he did not question the
teenager watching the children or the
parents themselves about the children’s
condition. Id. at 126-27. He simply
arrested the father when he appeared as
the children were being taken away and
arrested the mother when she appeared at
the police station. Id. at 125. We upheld
a finding that the arrest was
unreasonable, writing that "[r]easonable
avenues of investigation must be pursued
especially when, as here, it is unclear
whether a crime had even taken place."
Id. at 128.
Our case concerns a simpler issue:
identity. Pasiewicz does not dispute (or
at least does not seriously dispute) that
the naked man, whoever he was, committed
a crime of some sort in the Van Patten
Woods. The question was whether Pasiewicz
was the naked man. With regard to that
issue, the officers had credible
information to conclude that he was.
Although the officers might have saved a
law-abiding citizen considerable tumult
by asking more questions or digging
deeper into the case, the Fourth
Amendment did not require them to do so.
Pasiewicz claims that officers need a
greater quantum of evidence when making
arrests for less serious crimes. Although
this proposition is correct, see BeVier,
806 F.2d at 127 (noting that "probable
cause is a function of information and
exigency"), it does not give Pasiewicz
much traction. Walking naked in the woods
may be only a bit unsettling, but it is
considerably more threatening when
coupled with evidence, as in this case,
that the walker was watching children
play in a nearby clearing.
Pasiewicz argues that the officers
should have obtained a warrant. He’s
right: They should have. The officers’
conduct here was considerably less than
perfect. There was no need to rush, and
an arrest warrant could have, and would
have, been obtained with ease.
Fortunately for the officers, the Fourth
Amendment demands reasonableness,
notperfection, and the issue is not
whether it would have been more prudent
to secure a warrant. Instead, it’s
whether an arrest warrant, under these
circumstances, was absolutely required.
The answer is no. See Villanova v.
Abrams, 972 F.2d 792, 795 (7th Cir.
1992).
And finally, the lack of an arrest
warrant in this case is really a red
herring. Suppose, at the meeting with
Pasiewicz in the high school athletic
office, the police had not arrested him
but had instead given him a summons to
appear in court the next week to formally
plead to a public indecency charge that
would be filed that day. Would he not,
except for being taken to the police
station for an hour or so, have
experienced all the same traumas? He
still would have been publicly named as a
person who was naked in the woods, he
still would have probably been suspended
from his job, he still would have had to
get a lawyer, and he still would have had
to sit in the dock during a public trial.
Such is the misfortune of even an
innocent person mistakenly identified as
a culprit.
Pasiewicz next argues that the officers
acted unreasonably because they lacked
jurisdiction. This argument has two
premises: first, that the officers lacked
the authority to make an extraterritorial
arrest, and second, that their lack of
jurisdiction renders their conduct
unreasonable under the Fourth Amendment.
With regard to the first premise,
Pasiewicz claims that Illinois’ Downstate
Forest Preserve District Act, in particu
lar the section authorizing forest
preserve police forces, see 70 Ill. Comp.
Stat. 805/8a, does not permit them to act
on their own volition outside the
district’s physical boundaries. Rather,
the officers may act only "in aid of the
regular police force" of the
extraterritorial jurisdiction and
"subject to the direction" of its chief
of police or other head. Id. Pasiewicz
also claims that the statute giving law
enforcement officers authority to arrest
outside their jurisdiction, see 725 Ill.
Comp. Stat. 5/107-4, does not apply to
forest preserve officers because a forest
preserve district is not included in the
definition of "law enforcement agency,"
id. at 5/107(a)(4) (defining "law
enforcement agency" to mean "a municipal
police department or county sheriff’s
office of this State").
We need not reach these statutory
questions--indeed, we would be forced to
do so without guiding state precedents--
because even assuming that the officers
violated a state statute by making an
arrest outside their jurisdiction, it is
clear that Pasiewicz’s second premise is
faulty. A violation of a state statute is
not a per se violation of the federal
Constitution. The federal government is
not the enforcer of state law. Kraushaar
v. Flanigan, 45 F.3d 1040, 1048 (7th Cir.
1995); Archie v. City of Racine, 847 F.2d
1211, 1217 (7th Cir. 1988) ("[T]o treat a
violation of state law as a violation of
the Constitution is to make the federal
government the enforcer of state law.").
We have applied this principle
consistently in the context of state laws
governing criminal process, see, e.g.,
Sheik-Abdi, 37 F.3d at 1249 (holding that
a violation of a state statute regarding
the swearing of criminal complaints does
not give rise to constitutional
liability); McKinney, 726 F.2d at 1188
("If police officers have probable cause
to make an arrest . . . it is immaterial
to the constitutionality of their conduct
that the arrest may have violated state
law."), and see little reason to treat
state laws governing police jurisdiction
differently. It would not violate the
Fourth Amendment for the Illinois
Legislature to empower preserve officers
to make arrests outside the district’s
physical boundaries. It is difficult to
see why an officer engaging in the same
underlying act necessarily would./3
That said, an officer can act
incorrectly with regard to his
jurisdiction just as he can act
incorrectly with regard to any other
factor involved in the exercise of his
authority. The present case might
arguably be viewed differently if Sandahl
and Henning knew they lacked jurisdiction
and the Waukegan police department, where
the arrest occurred, specifically
prohibited the two officers from
arresting Pasiewicz within their
jurisdiction. Such a blatant disregard of
state law and the chain of command could
weigh on the scales of reasonableness.
But those are not the present facts.
Sandahl notified the Waukegan police
department before the arrest. There is no
evidence that the officers ignored an
order of Waukegan officers not to arrest
Pasiewicz. Accordingly, the officers did
not act unreasonably under the Fourth
Amendment, even assuming that they acted
outside their jurisdiction.
In sum, none of Pasiewicz’s arguments
show that Sandahl and Henning violated
the Constitution when they arrested him.
They and the other officers (Johnson in
particular) certainly could have, and we
think should have, proceeded with more
caution. They get no commendation ribbons
for the way they handled this case.
Pasiewicz’s claim against the forest
preserve district (even assuming it’s a
suable entity) for failure to train or
supervise its officers properly regarding
the laws of search, seizure, and
jurisdiction is a born loser. Because the
officers did not violate Pasiewicz’s
constitutional rights, he did not suffer
constitutional injury. Accordingly, under
City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986) (per curiam), the
district cannot be held liable.
For the reasons stated, the judgment of
the district court is AFFIRMED.
FOOTNOTES
/1 The parties do not tell us whether Pasiewicz’s
job suspension was lifted after his acquittal,
but we would assume so.
/2 Pasiewicz claims that neither arresting officer
had personal knowledge of the information provid-
ing probable cause. But both officers read Shan-
non’s report. Sandahl was also present at the
September 1 meeting when Peterson claimed that
Pasiewicz was the man she had seen. Henning
learned that the two women were close enough on
August 30 to have clearly seen the suspect and
that Peterson was "adamant" that the man she had
seen in the parking lot was the "same gentleman"
in the school parking lot the next day. Moreover,
Johnson, who had ordered the arrest, had read
Shannon’s report and spoken with his officers and
the women in the days following the incident.
Even assuming that Sandahl or Henning knew noth-
ing about the women’s complaints, Johnson’s and
Shannon’s knowledge would be imputed to them.
United States v. Hensley, 469 U.S. 221, 232-33
(1985); United States v. Sawyer, 224 F.3d 675,
680 (7th Cir. 2000).
/3 Although courts have split on whether an arrest
is per se unreasonable when an officer acts
outside his or her jurisdiction, compare Abbott
v. City of Crocker, 30 F.3d 994, 997-98 (8th Cir.
1994) (holding that an arrest made by an officer
outside his jurisdiction does not violate the
Fourth Amendment), and Madsen v. Park City, 6 F.
Supp.2d 938, 945 (N.D. Ill. 1998) (finding no
constitutional violation where officer lacked
jurisdiction to stop plaintiff and issue a cita-
tion), with Ross v. Neff, 905 F.2d 1349, 1353-54
(10th Cir. 1990) (holding that an arrest made
outside an officer’s jurisdiction, absent exigent
circumstances, violates the Fourth Amendment),
and United States v. Foster, 566 F. Supp. 1403,
1412 (D.D.C. 1983) (holding that the "concept of
reasonableness in the Fourth Amendment logically
presupposes an exercise of lawful authority by a
police officer"), it is worth pointing out that
Ross involved the ability of an Oklahoma state
officer to arrest a Native American on tribal
trust land. 905 F.2d at 1352. Under federal law,
the state could assume criminal jurisdiction over
the land only with congressional approval or
tribal consent. Id. The present case concerns the
jurisdiction of officers acting between political
subdivisions of the same state. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2995415/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1831
Michael Hakim,
Plaintiff-Appellant,
v.
Payco-General American
Credits, Inc. and OSI, Inc.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 1904---Ruben Castillo, Judge.
Argued November 7, 2001--Decided November 29, 2001
Before Flaum, Chief Judge, and Posner and
Kanne, Circuit Judges.
Flaum, Chief Judge. The district court
granted defendants’ motion to enforce a
binding settlement agreement between
Hakim and Payco-General/OSI. Hakim
appeals. For the reasons set forth below,
we affirm.
I. Background
Until his March 1, 1999 resignation,
Michael Hakim was a debt collector at the
Schaumburg, Illinois facility of
Outsourcing Collection Services, Inc.
(formerly Payco-General American Credits,
Inc.) ("Payco"), a subsidiary
ofOutsourcing Solutions, Inc. ("OSI").
Soon after he left Payco, Hakim filed a
charge with the Cook County Commission on
Human Rights ("CHR"), claiming
discrimination on the basis of perceived
sexual orientation. In July 1999, Hakim
joined an existing Title VII lawsuit,
claiming retaliation, assault and
battery, and discrimination. Hakim and
OSI began settlement discussions in
December 1999, when Hakim requested a
$95,000 settlement. OSI, believing
Hakim’s claims to have little merit,
refused to settle under those terms. On
March 30, 2000, after a settlement
conference, Hakim again offered to
settle, this time reducing his demand to
$12,500. Again OSI rejected the offer and
told Hakim’s attorney, Marshall Burt,
that it was not willing to pay Hakim
anything. Meanwhile, on March 26, Hakim
sent the district court an affidavit
prepared for Katrina Malone, an OSI
employee, alleging that she had been
coerced into giving false witness
statements during OSI’s investigation of
Hakim’s co-plaintiff’s allegations, and
false deposition testimony at trial. The
district court held an evidentiary
hearing on the issue on April 26, 2000.
Attorneys for both sides were present.
After the hearing, on May 4, 2000, Burt
telephoned OSI’s attorney, Beth Golub,
further pursuing settlement. Golub
suggested a settlement whereby Hakim
would voluntarily dismiss his federal
claims as well as his charge pending
before the CHR in exchange for OSI’s
agreement to forgo its right to seek
reimbursement of litigation costs. On May
18, the parties agreed to the terms of
the settlement. During the conversation
agreeing to the settlement, Burt
requested that OSI sign a stipulation for
the dismissal of Hakim’s claims in
federal court, stating that each party
would pay its own costs. Golub agreed,
and Burt mailed the prepared stipulation
as well as the dismissal to Golub later
that day.
On May 17, the day before the parties
agreed to the terms of the settlement and
unbeknownst to either party, the district
court determined that OSI knowingly and
intentionally coerced fraudulent
statements and testimony from Malone, and
entered default judgment against OSI in
favor of all four plaintiffs, including
Hakim. When the parties learned of this
judgment on May 19, Hakim, through Burt,
attempted to withdraw his offer to
settle. OSI replied that the parties had
already reached a binding settlement
agreement.
On May 30, OSI moved to vacate the
default judgment and enforce the
settlement agreement. The district court,
without holding an evidentiary hearing,
granted the motion.
II. Discussion
The law of this Circuit is clear that we
review a district court’s decision to
enforce a settlement agreement for abuse
of discretion. Carr v. Bloom, 89 F.3d
327, 331 (7th Cir. 1996) ("Given that the
power to implement a settlement agreement
between the parties inheres in the
district court’s role as supervisor of
the litigation, the exercise of that
power is particularly appropriate for
deferential review."); Wilson v. Wilson,
46 F.3d 660, 664 (7th Cir. 1995)
("[Enforcement of a settlement agreement]
is precisely the type of determination
that normally receives a deferential,
abuse of discretion review."). Hakim
inartfully argues that a de novo standard
applies when the reviewing court must
determine whether or not a material issue
of fact concerning the existence of a
settlement exists, requiring an
evidentiary hearing. Our case law holds
otherwise. "[I]n considering a district
court’s decision whether to enforce a
settlement agreement, including its
threshold determination of whether the
parties actually entered into a valid and
enforceable agreement, we will not
reverse unless the lower court abused its
discretion." Carr, 89 F.3d at 331
(emphasis added). Therefore, we must ask
not whether we agree with the district
court’s ruling, but whether that ruling
was reasonable. Id. (citing Antevski v.
Volkswagenwerk Aktiengesellschaft, 4 F.3d
537, 539-40 (7th Cir. 1993)). We find
that it was.
The district court was presented with
ample evidence on the record to support
its finding, without holding a hearing,
that a binding settlement agreement
existed. "If . . . a court can have
reasonable confidence that it knows what
the contract means, it ought not put the
litigants (and the trier of fact) to the
bother, expense, and uncertainty of a
trial or other evidentiary hearing."
Overhauser v. United States, 45 F.3d
1085, 1087 (7th Cir. 1995). The district
court’s finding that the parties entered
into an executory contract was well
supported by the facts presented to it.
That the parties agreed that OSI would
not seek recovery of costs and Hakim
would voluntarily withdraw his case from
both federal court and the CHR is
supported by Burt’s directions to Golub
to sign the stipulation he mailed to her,
with no discussion of any condition
precedent, as well as by the fact that
Hakim had been actively pursuing a
settlement agreement. Three settlement
agreements had been negotiated between
OSI and the plaintiffs in the Title VII
case. The district court, after
considering the briefs, affidavits, and
record evidence, determined that,
although one did warrant an evidentiary
hearing, Hakim’s did not. This finding
was in no way unreasonable.
Moreover, we cannot accept Hakim’s
arguments that the settlement agreement
is void for lack of consideration./1
Forbearance of a right to a legal claim
constitutes valid consideration. E.g.,
Kapoor v. Robins 573 N.E.2d 292, 297
(Ill. Ct. App. 1991). Even if, in
hindsight, the legal claim was improbable
or nonexistent, "it would be enough if at
the time of settlement [the party]
believed in good faith it was vulnerable
to a claim by [the other party.]"
Intamin, Inc. v. Fingley Wright
Contractors, Inc., 605 F.Supp. 707, 711
(N.D. Ill. 1985). Hakim decided to settle
with OSI to obtain certainty that he
would not be liable for OSI’s court costs
and attorney fees. He decided that he
would rather have this certainty than the
chance to obtain a favorable judgment
from the district court. It turns out
that his chances of receiving such a
judgment were better than he had thought.
This does not make the agreement invalid,
however, and the district court was well
within its discretion to enforce it.
Lastly, Hakim cannot avoid the
settlement agreement by contending that
OSI acted fraudulently or in bad faith by
coercing false testimony of a witness.
Hakim did not show that he relied on
OSI’s false statements or bad faith
conduct in entering into the settlement
agreement. In fact, as the district court
explained, Hakim requested and witnessed
the evidentiary hearing on the issue of
OSI’s coercion of Malone. He pursued the
settlement notwithstanding his belief
that OSI acted in bad faith, and with
full knowledge that, if he did not
settle, the court had the authority
toenter a default judgment in his favor.
Again, the district court’s decision was
reasonable.
III. Conclusion
Because the district court, in its role
as supervisor of the litigation, may
summarily enforce a settlement agreement,
and because the court had abundant record
evidence to support its conclusion, we
find no abuse of discretion. We AFFIRM.
FOOTNOTE
/1 Although the parties argued the issue below, the
district court made no specific finding as to
consideration. The finding of consideration is
implicit, however, in the court’s enforcement of
the settlement agreement. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2997341/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1154
PAUL T. WILLIAMS,
Petitioner-Appellee,
v.
LARRY SIMS,
Respondent-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 00 C 7056—David H. Coar, Judge.
____________
ARGUED SEPTEMBER 20, 2004—DECIDED DECEMBER 1, 2004
____________
Before POSNER, KANNE, and EVANS, Circuit Judges.
POSNER, Circuit Judge. This is a habeas corpus action
brought by a state prisoner. The state moved to dismiss the
case as untimely, but the district court denied the motion,
ruling that the statute of limitations had been equitably
tolled. The question whether his ruling was correct is pre-
sented to us by an interlocutory appeal under 28 U.S.C.
§ 1292(b). The question has two parts: In what circum-
stances is the one-year statute of limitations in 28 U.S.C.
§ 2244(d)(1) for federal habeas corpus proceedings brought
by state prisoners subject to the common law doctrine of
2 No. 04-1154
equitable tolling? And was the judge correct to hold that the
statute of limitations should be tolled in the circumstances
of this case?
The general rule is that a statute of limitations may be
tolled—that is, arrested—on the basis of one or the other of
two common law doctrines: equitable estoppel and equita-
ble tolling. Shropshear v. Corporation Counsel, 275 F.3d 593,
595 (7th Cir. 2001); Singletary v. Continental Illinois National
Bank & Trust Co., 9 F.3d 1236, 1241 (7th Cir. 1993); Dring v.
McDonnell Douglas Corp., 58 F.3d 1323, 1328-29 (8th Cir.
1995). The first addresses conduct by the defendant that
prevents the plaintiff from suing within the statutory per-
iod. One standard example is where the defendant has
fraudulently concealed from the plaintiff the existence of a
claim against the defendant. Bell v. City of Milwaukee, 746
F.2d 1205, 1229-31 (7th Cir. 1984); see also Bennett v. Coors
Brewing Co., 189 F.3d 1221, 1235-36 (10th Cir. 1999) (same,
but confusingly described as an equitable-tolling case). An-
other is where the defendant requested the plaintiff to delay
suit while the parties tried to negotiate a settlement. Schroeder
v. Young, 161 U.S. 334, 344 (1896); Shropshear v. Corporation
Counsel, supra, 275 F.3d at 597; Cerbone v. International Ladies’
Garment Workers’ Union, 768 F.2d 45, 49-50 (2d Cir. 1985).
The other doctrine, equitable tolling, refers to situations in
which, without fault by the defendant, the plaintiff is unable
to sue within the statutory period. The standard example is
where despite the exercise of due diligence the plaintiff
simply cannot discover the wrongdoer’s identity, or facts
essential to show that there was an actionable wrong, within
the statutory period. Donald v. Cook County Sheriff’s Depart-
ment, 95 F.3d 548, 561-62 (7th Cir. 1996); see also Lampf,
Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350,
363 (1991).
No. 04-1154 3
There is no reason in principle why these doctrines should
not apply to a statute of limitations in a habeas corpus case,
especially a short statute of limitations such as the one in
section 2244(d)(1). However, there is an argument that
Congress knocked out the doctrines by specifying unique
tolling rules right in the statute itself, a question we left
open in Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999).
This is what the statute says:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursu-
ant to the judgment of a State court. The limitation period
shall run from the latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an applica-
tion created by State action in violation of the Constitution
or laws of the United States is removed, if the applicant
was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(There is a materially identical provision in 28 U.S.C. § 2255,
the federal prisoner’s habeas corpus substitute.) Just to
make life a little more complicated, section 2244(d)(2) tolls
the statute of limitations for “the time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
4 No. 04-1154
claim is pending.” That section will figure when we come to
discuss the particulars of Williams’s case, but we can ignore
it for now.
In subsection (B) of section 2244(d)(1) we see an aspect of
equitable estoppel—the defendant has impeded the filing of
the habeas corpus action—but it is limited to cases in which
the impediment violated federal law, and so it would not
cover either of the standard cases of equitable estoppel that
we mentioned earlier unless due process were broadly
construed to forbid all such impediments—as perhaps it
might be, cf. Strickler v. Greene, 527 U.S. 263 (1999); Brady v.
Maryland, 373 U.S. 83 (1963). Similarly, subsection (D)
covers a part only of equitable tolling unless “factual
predicate of the claim” is loosely interpreted to cover cases
in which the identity of the wrongdoer cannot be discovered
by the exercise of due diligence. The interpretation would
be loose because as a matter of semantics it is possible to
know all the facts that give rise to a legal claim yet not know
who the wrongdoer is. But this potential gap in the statutory
tolling rule will rarely be a problem in the habeas corpus
setting. The proper respondent is always the petitioner’s
custodian, who in turn is almost always the warden of the
jail or prison in which the petitioner is confined. 28 U.S.C.
§ 2243; Rules 2(a) and (b) of the Rules Governing Section
2254 Cases; Rumsfeld v. Padilla, 124 S. Ct. 2711, 2718-22
(2004); al-Marri v. Rumsfeld, 360 F.3d 707, 708-09 (7th Cir.
2004). There are, however, exceptions, Braden v. 30th Judicial
Circuit Court, 410 U.S. 484, 485, 489 n. 4 (1973); Jones v.
Cunningham, 371 U.S. 236, 243 (1963); Reimnitz v. State’s
Attorney of Cook County, 761 F.2d 405, 408-09 (7th Cir. 1985),
mainly in cases in which the petitioner is not in physical
custody but is instead out on parole (as in Jones) or bail (as
in Reimnitz).
No. 04-1154 5
Within the areas of overlap between the statutory and com-
mon law tolling rules, and thus in determining for example
what is an “impediment” and what is required to show
“due diligence,” we can assume that the body of principles
built up in countless cases applying equitable estoppel and
equitable tolling outside the habeas corpus setting is usable
to flesh out the statute; McClendon v. Sherman, 329 F.3d 490,
494 (6th Cir. 2003). Dunlap v. United States, 250 F.3d 1001,
1007-09 (6th Cir. 2001); Fisher v. Johnson, 174 F.3d 710, 713 n.
11 (5th Cir. 1999). The difficult question is whether the
common law doctrines remain applicable in cases in which
the habeas corpus statute has a narrower scope than the
common law. These would mainly be cases in which the
impediment was not a violation of federal law or the result
of state action, or in which what the petitioner couldn’t
discover by the exercise of due diligence in time to sue
within the statutory deadline was not a factual predicate of
his claim but the identity of the wrongdoer.
Of course the fact that section 2244(d)(1) does not cover
the entire ground covered by the common law tolling
doctrines does not establish that the doctrines survive the
statute. Congress may have wanted to curtail them by sub-
stituting a narrower statutory standard, as distinct from
supplementing them. But there is no indication of this. The
statutory tolling provisions that we quoted came in with the
statute of limitations itself in the Antiterrorism and Effective
Death Penalty Act. See Pub. L. No. 104-132, § 101, 110 Stat.
1214, 1217. Until then there hadn’t been a statute of limita-
tions in habeas corpus cases. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993). There had only been the equitable doctrine
of “abuse of the writ” to cut off inexcusably belated claims,
Rule 9(a) of the Rules Governing Section 2254 Cases. See,
e.g., Clency v. Nagle, 60 F.3d 751 (11th Cir. 1995) (17-year
delay); Walton v. Attorney General, 986 F.2d 472, 475-76 (11th
6 No. 04-1154
Cir. 1993) (19 years); Strahan v. Blackburn, 750 F.2d 438, 443-
44 (5th Cir. 1985) (11 years). But because abuse of the writ
was the equivalent of laches, Walters v. Scott, 21 F.3d 683,
686-87 (5th Cir. 1994), proof that the respondent’s ability to
defend the case had been impaired by the petitioner’s delay
was required, National R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 121-22 (2002); Costello v. United States, 365 U.S. 265,
282 (1961); Teamsters & Employers Welfare Trust v. Gorman
Brothers Ready Mix, 283 F.3d 877, 880 (7th Cir. 2002), and as
a result many very old claims were not precluded, as in
Sutton v. Lash, 576 F.2d 738, 744 (7th Cir. 1978) (21 years); Wise
v. Armontrout, 952 F.2d 221, 223 (8th Cir. 1991) (17 years);
Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970) (38
years), and Hawkins v. Bennett, 423 F.2d 948, 951 (8th Cir.
1970) (44 years). Since there was no statute of limitations, the
standard grounds—equitable estoppel and equitable
tolling—for tolling statutes of limitations were not relevant,
and they were not a focus of Congress’s deliberations on
creating a habeas corpus statute of limitations for the first
time.
In light of this history, it is not surprising that all the cases
that address whether the common law tolling doctrines are
applicable to the habeas corpus statute of limitations have
held that they are, e.g., Neverson v. Farquharson, 366 F.3d 32, 39-
41 (1st Cir. 2004); Harris v. Hutchinson, 209 F.3d 325, 328-30
(4th Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000) (per curiam); Davis v. Johnson, 158 F.3d 806, 810-11 (5th
Cir. 1998); Calderon v. U.S. District Court, 128 F.3d 1287, 1288-
89 (1997), reversed on other grounds, 163 F.3d 530 (9th Cir.
1998) (en banc), provided that the doctrine is not applied in
a way that is inconsistent with the statute, as we empha-
sized in Brooks v. Walls, 279 F.3d 518, 525 (7th Cir. 2002), and
earlier in Owens v. Boyd, 235 F.3d 356, 358-60 (7th Cir. 2000).
No. 04-1154 7
There is not a great deal at stake, however, though some
courts may have been misled in this regard, as we shall see,
by misunderstanding the scope of the common law doctrine.
The gap between statute and tolling rule looms largest with
respect to equitable estoppel, and as to that it is difficult to
believe that Congress meant to legislate, for example, that if
the respondent in a habeas corpus action promises not to
plead the statute of limitations if the petitioner will delay in
filing his action, yet pleads it anyway, the courts are de-
barred from estopping the respondent just because section
2244(d)(1)(B) does not specify that such a promise can arrest
the one-year statute of limitations. We cannot find any case
in which this precise issue has arisen, but there are several
closely analogous cases, such as Stillman v. Lamarque, 319 F.3d
1199, 1201-02 (9th Cir. 2003), where the prison litigation
coordinator broke his promise to the petitioner’s lawyer to
obtain the petitioner’s signature on his state postconviction
pleading in time for the pleading to be timely, and Lott v.
Mueller, 304 F.3d 918, 925 (9th Cir. 2002), where the peti-
tioner was denied access to his legal files when he was twice
“writted” out of the district to testify. See also Whalem/Hunt
v. Early, 233 F.3d 1146, 1147-48 (9th Cir. 2000) (en banc) (per
curiam); Valverde v. Stinson, 224 F.3d 129, 133-35 (2d Cir.
2000); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
The validity of such decisions should not depend on
whether they can be shoehorned into the statutory provision
for “impediment[s] to filing an application created by State
action in violation of the Constitution or laws of the United
States.”
With respect to equitable tolling, if we set aside the rare
case in which the respondent’s identity is unknown the only
case in which the statute fails to track the common law
doctrine is where the federal district court misleads the
petitioner concerning filing deadlines. See Pliler v. Ford, 124
8 No. 04-1154
S. Ct. 2441, 2447 (2004); Alexander v. Cockrell, 294 F.3d 626,
629-30 (5th Cir. 2002) (per curiam); United States v. Kelly, 235
F.3d 1238, 1242-43 (10th Cir. 2000); cf. United States v.
Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000) (per curiam).
Such a case cannot be fitted to the statutory language. In
other cases, cases falling within the area of overlap between
the statute and the doctrine, subsection (D) is best under-
stood as invoking the common law doctrine, allowing its prin-
ciples to be applied to habeas corpus.
And now to the question how those principles apply to
this case. The statutory deadline for the petitioner to seek
federal habeas corpus was April 24, 1997, and he didn’t file
until November 7, 2000. However, on April 4, 1997, he had
filed a petition for state postconviction relief that was still
pending when he filed his federal action, and if that pen-
dency tolled the statute of limitations he is home free. Un-
fortunately for him, his state petition was itself untimely.
Nevertheless the district judge ruled that it tolled the statute
of limitations because it was uncertain at the time whether
an untimely petition activated the tolling provision in
section 2244(d)(2) and because the state courts had dawdled
for three years before ruling that Williams’s state-court post-
conviction suit was indeed untimely. The district judge’s
ruling was not based on (d)(2), because an untimely state
postconviction petition does not toll the statute of limita-
tions. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Owens v. Boyd,
supra, 235 F.3d at 357; Freeman v. Page, 208 F.3d 572, 574 (7th
Cir. 2000), and cases cited there. It was based on the com-
mon law doctrine of equitable tolling: the proceeding tolled
the statute of limitations because the circumstances were
such that the petitioner could not reasonably have been ex-
pected to sue within the statutory deadline.
It should be obvious that an untimely petition would not
toll a statute of limitations; and while that might not be
No. 04-1154 9
obvious to an unrepresented prisoner, even reasonable mis-
takes of law are not a basis for equitable tolling. This is the
general rule, e.g., Hoosier Bancorp of Indiana, Inc. v. Rasmus-
sen, 90 F.3d 180, 183 (7th Cir. 1996); Wakefield v. Railroad
Retirement Board, 131 F.3d 967, 969-70 (11th Cir. 1997) (per
curiam), and it has been applied repeatedly to pro se habeas
corpus petitioners. E.g., Owens v. Boyd, supra, 235 F.3d at
358-60; Baker v. Norris, 321 F.3d 769, 771-72 (8th Cir. 2003);
Fierro v. Cockrell, 294 F.3d 674, 681-84 (5th Cir. 2002); Delaney
v. Matesanz, 264 F.3d 7, 15-16 (1st Cir. 2001); Marsh v. Soares,
223 F.3d 1217, 1220-21 (10th Cir. 2000); Felder v. Johnson, 204
F.3d 168, 171-73 (5th Cir. 2000); Fisher v. Johnson, supra, 174
F.3d at 714-15. (See also Modrowski v. Mote, 322 F.3d 965 (7th
Cir. 2003), where we held that the incapacity, like the
negligence, of an attorney for a habeas corpus petitioner
was likewise not a ground for equitable tolling.) Otherwise
statutes of limitations would have little bite, and no value at
all to persons or institutions sued by people who don’t have
good, or perhaps any, lawyers.
The state court’s delay in ruling that the petitioner’s state-
court postconviction action was untimely has no bearing on
the reasonableness of Williams’s conduct. He filed that
action only 20 days before the deadline for seeking federal
habeas corpus expired, which means that only if the court
had dismissed his postconviction action within that period
(more precisely, had communicated the dismissal to him
within that period) could he have filed his federal habeas
corpus action in time. The court could not reasonably be
expected to act so quickly. Nor is a court’s failure to warn a
party that he is about to be cut off by the statute of limi-
tations a basis for equitable tolling. Pliler v. Ford, supra, 124
S. Ct. at 2446-47.
And now we see why some courts have thought it might
be very important to decide whether equitable tolling sur-
10 No. 04-1154
vives the enactment of section 2244(d)(1). It is plain that
subsection (D), which we said overlaps the common law
doctrine almost completely, does not encompass mistakes
of law; it is limited to the “factual” predicates of the peti-
tioner’s claim. But this would open up a gap between the
statutory and the common law tolling rules only if the com-
mon law doctrine allowed a statute of limitations to be tolled
on the basis of a mistake of law or a failure by a court to
warn litigants about impending pitfalls, such as an about-to-
expire statute of limitations. It does not.
The ruling of the district court is reversed with instruc-
tions to dismiss the suit.
REVERSED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-1-04 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2997416/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2199
DIAMOND PLATING COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03 C 348—G. Patrick Murphy, Chief Judge.
____________
ARGUED NOVEMBER 12, 2004—DECIDED DECEMBER 6, 2004
____________
Before BAUER, MANION, and EVANS, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Diamond
Plating Company, a manufacturing company that applies
chrome and nickel plating to metal products, failed to
timely file its employment tax returns for 1998 and 1999
and failed to timely deposit and pay its corresponding tax
liability. Diamond Plating tardily filed the returns in 2000,
and paid the taxes and interest over the next two years. The
IRS assessed penalties against Diamond Plating for failure
to timely file returns, failure to timely deposit taxes, and
2 No. 04-2199
late payment of taxes. Diamond Plating paid a portion of
the penalties, and then requested a refund and abatement,
asserting that financial difficulties caused by the loss of a
major customer justified its noncompliance. After the IRS
Commissioner denied the request, Diamond Plating filed
suit for a refund of the already paid penalties and for
abatement of the remaining penalties. The district court
granted summary judgment in favor of the government. We
affirm.
I. Background
Diamond Plating is a family-run metal finishing business
with about thirty employees in Madison, Illinois. Joseph
and Loretta Clark owned all of the company’s stock until
Joseph’s death in 1997, at which time Loretta Clark became
the sole shareholder. Loretta Clark was also the company
president during the relevant time period, though she took
a limited role in the operation of the business. Clark’s
children, Robert Cox and Gina Scaturro, played a more
active role in the business, Cox as the vice-president of
operations and Scaturro as the secretary-treasurer. Cox was
responsible for hiring and firing employees, bidding on jobs,
and dealing with customers and vendors, while Scaturro was
in charge of all accounting-related activities, including
paying creditors, filing Federal Insurance Contributions Act
(“FICA”) and Federal Unemployment Tax Act (“FUTA”) tax
returns, and depositing and paying the associated taxes.1
1
Under FICA, 12.4% of wages up to an annual limit must be paid
into Social Security, and an additional 2.9%, not subject to an
annual limit, goes to Medicare. 26 U.S.C. §§ 3101-3111. Employers
and employees split the cost, with the employee’s portion automat-
ically deducted from his or her paycheck. Id. The FUTA tax
requires employers to pay 6.2% on the first $7,000 in wages paid
(continued...)
No. 04-2199 3
From 1990 to 1993, Diamond Plating’s revenue exceeded
$2 million every year, with Virco Manufacturing Company
accounting for about 80% of its revenue. At the end of 1995,
Virco decided to move its metal finishing in-house and
substantially reduced its business with Diamond Plating.
Diamond Plating’s revenue dropped from over $2 million in
1995 to about $920,000 in 1996. Virco began to do business
with Diamond Plating again in 1998, returning to approxi-
mately 40% of its previous level of business by the end of
1998. By the end of 1999, Virco’s business with Diamond
Plating had increased to between 50% and 60% of its former
level. Diamond Plating had revenue of approximately $1.2
million in 1997, $1.1 million in 1998, $1.6 million in 1999,
$1.8 million in 2000, and $2.5 million in 2001.
Beginning with the first quarter of 1998 and continuing
through the last quarter of 1999, Diamond Plating stopped
filing its quarterly Form 941 FICA tax returns and stopped
timely depositing and paying its FICA tax liabilities.
Diamond Plating also failed to file its yearly Form 940
FUTA tax returns and failed to timely pay its FUTA lia-
bilities for the years 1998 and 1999. According to Cox,
Diamond Plating would have gone out of business or been
forced into bankruptcy if it had paid the taxes on time.
Despite the company’s failure to file returns and pay its
1998 and 1999 FICA and FUTA taxes, Diamond Plating
paid all of its creditors during that period, though some bills
were paid late. Diamond Plating also made payments dur-
ing the period at issue to Clark for a loan she had made to
the company. In addition, Diamond Plating increased corpor-
ate officer salaries by a total of $40,000 in 1998, $26,000 in
1999, and $50,000 in 2000.
1
(...continued)
to each employee. 26 U.S.C. § 3301-3311. FICA and FUTA taxes
often are referred to as employment taxes or payroll taxes.
4 No. 04-2199
During 1998 and 1999, Scaturro discussed the company’s
financial problems with Clark on a weekly basis, but never
informed Clark that the employment taxes had not been
paid. Charles French, Diamond Plating’s outside accoun-
tant, contemporaneously prepared Diamond Plating’s 1998
and 1999 employment tax returns and advised Scaturro to
pay them. French knew that Scaturro did not pay the taxes,
and he listed them as liabilities on the corporation’s quar-
terly financial statements.
In March 2000, Scaturro informed Clark that the 1998
and 1999 employment taxes had not been paid and that the
tax returns had not been filed. On April 9, 2000, Diamond
Plating filed the delinquent quarterly and annual tax re-
turns for 1998 and 1999. In July 2000, Clark obtained two
bank loans to help pay the delinquent taxes and interest.
Between June 2000 and March 2002, Diamond Plating paid
the delinquent taxes and interest, which totaled over $300,000.
The IRS assessed penalties against Diamond Plating for
failure to timely file its FICA and FUTA returns under 26
U.S.C. § 6651(a)(2), for late payment under 26 U.S.C.
§ 6651(a)(2), and for failure to deposit taxes under 26 U.S.C.
§ 6656(a). The penalties totaled over $130,000. Diamond
Plating paid a portion of the penalties, but then filed a re-
quest for refund and abatement of penalties on September
25, 2000. After the IRS denied Diamond Plating’s request
by letter dated April 17, 2003, Diamond Plating filed this
lawsuit. The government filed a motion for summary judg-
ment, and the court held a hearing on the motion. Ruling
from the bench, the district judge rejected Diamond Plating’s
arguments that financial difficulties and deception by
Scaturro precluded it from paying the employment taxes,
and concluded that Diamond Plating had no reasonable ex-
cuse under the law for its noncompliance. The district judge
granted the government’s motion, a decision we review de
novo.
No. 04-2199 5
II. Discussion
The Internal Revenue Code requires employers to with-
hold FICA taxes from the wages of their employees, remit
the withheld taxes to the IRS on a quarterly basis, and
report the amount of the withheld taxes on a quarterly
payroll tax return. 26 U.S.C. §§ 3101-3111. While they are
still in the possession of the employer, the withheld funds
are referred to as “trust fund” taxes, with the employer ac-
ting as a trustee for the government. In re Avildsen Tools &
Machine, Inc., 794 F.2d 1248, 1249 (7th Cir. 1986). “Non-
trust fund” taxes, on the other hand, are taxes that are not
collected from employees’ wages, such as an employer’s
share of Social Security taxes. Id. The Code also requires
employers to file an annual FUTA tax return and pay the
corresponding unemployment tax liability. 26 U.S.C. § 3301-
3311. Where an employer fails to file FICA or FUTA tax
returns, or fails to deposit or pay the FICA or FUTA tax
liability shown on the tax returns, the Code provides for a
mandatory penalty, unless the taxpayer shows that the
failure was due to reasonable cause and not due to willful
neglect. 26 U.S.C. § 6651(a)(1); 26 U.S.C. § 6651(a)(2); 26
U.S.C. § 6656(a).
In the instant case, Diamond Plating failed to timely file
its employment tax returns for 1998 and 1999, and failed to
timely deposit and pay its corresponding tax liability. The
sole issue before us is whether Diamond Plating has
established reasonable cause to excuse its noncompliance.
Although the Code does not define reasonable cause, the
relevant Treasury regulation requires Diamond Plating to
demonstrate that despite exercising “ordinary business care
and prudence,” it “was nevertheless either unable to pay the
tax or would suffer an undue hardship if [it] paid on the due
date.” 26 C.F.R. § 301.6651-1(c)(1). When assessing Dia-
mond Plating’s ability to pay the taxes, “consideration will
be given to all the facts and circumstances of [its] financial
situation. . . .” Id. The regulations also provide that the
6 No. 04-2199
employer will be held to a heightened standard when trust
fund taxes are at issue. 26 C.F.R. § 301.6651-1(c)(2). The
Supreme Court has described the taxpayer’s burden in
establishing reasonable cause as a heavy one. United States
v. Boyle, 469 U.S. 241, 245, 105 S.Ct. 687, 83 L. Ed. 2d 622
(1985).
Diamond Plating contends that it had reasonable cause
for nonpayment of its employment taxes due to financial
distress caused by the loss of its main customer in late
1995. Diamond Plating points out that Virco accounted for
80% of its business until the end of 1995, when Virco moved
its metal finishing in-house. With the loss of Virco’s bus-
iness, Diamond Plating’s revenue decreased by more than
50% between 1995 and 1996. Diamond Plating urges us to
join a number of other circuits by recognizing that financial
hardship can, under some circumstances, justify failure to
pay and deposit employment taxes, and to find that a rea-
sonable jury could find those circumstances present in this
case. See Van Camp & Bennion v. United States, 251 F.3d
862, 868 (9th Cir. 2001); East Wind Corp., Inc. v. United
States, 196 F.3d 499, 507-08 (3d Cir. 1999); Fran Corp. v.
United States, 164 F.3d 814, 819 (2d Cir. 1999). But see
Brewery, Inc. v. Commissioner, 33 F.3d 589, 592 (6th Cir.
1994). According to Diamond Plating, it would have been
forced out of business or into bankruptcy if it had paid the
1998 and 1999 employment taxes.
We agree with the majority of circuit courts that have
considered this issue, and recognize that financial hardship
may constitute reasonable cause for abatement of penalties
for nonpayment of taxes in some circumstances. Neverthe-
less, we have little trouble concluding that those circum-
stances are not present in this case. First, Diamond Plating
paid taxes in 1996 when its revenue was at its low point,
but then failed to pay employment taxes in 1998 and 1999,
by which time it had resumed doing business with Virco
and substantially restored its revenue level. Second, in the
No. 04-2199 7
middle of the asserted financial distress, Diamond Plating’s
three corporate officers saw fit to increase their own salaries.
In fact, between 1997 and 2000, the corporate officers’
salaries increased by 70%, which had the dual effect of
dissipating funds that could have been used to pay the taxes
and increasing the company’s unpaid employment tax
liability. Third, all other creditors were paid during 1998 and
1999, and a number of payments were made to Clark, the
company president, on a loan made to Diamond Plating.
Finally, when Scaturro informed Clark in 2000 about the
failure to pay the employment taxes, Clark took immediate
action to pay off the delinquent taxes and interest, which
suggests that the company had an available source of credit
in times of financial difficulty. In light of these facts, no
reasonable jury could find that Diamond Plating’s financial
situation excused its failure to pay employment taxes in
1998 and 1999.
We also note that some of the delinquent taxes were trust
fund taxes. Rather than remitting these taxes to the
government on a quarterly basis after withholding them
from employee wages, Diamond Plating used the funds for
operating expenses. Because this practice makes the gov-
ernment “an unwilling partner in a floundering business,”
Collins v. United States, 848 F.2d 740, 741-42 (6th Cir. 1988),
companies withholding trust fund taxes must provide strong
justification to avoid penalties. Diamond Plating has failed
to provide such a justification. Indeed, the undisputed evi-
dence shows that the company’s officers favored all other
creditors and themselves over the government, which se-
verely undermines Diamond Plating’s arguments about
financial distress.
Diamond Plating also argues that Scaturro, the company’s
secretary-treasurer, incapacitated the company by conceal-
ing the nonpayment of taxes. We find this argument to be
unpersuasive. French, Diamond Plating’s outside accoun-
8 No. 04-2199
tant, contemporaneously prepared the employment tax
returns for 1998 and 1999, and instructed Scaturro to pay
the liability and file the returns. Scaturro did not pay the
taxes or file the returns, but did not conceal this fact from
anyone; the corporate officers did not ask Scaturro about it,
and she did not mention it. French was aware of the
nonpayment of taxes, and listed the tax liabilities on the
corporation’s quarterly financial statements. We cannot
understand why French did not alert Clark or Cox about
Scaturro’s inaction; nevertheless, Scaturro’s nonperformance
of her job responsibilities is not the government’s problem,
and did not excuse Diamond Plating from filing, depositing,
and paying its taxes. A modest amount of oversight of
Scaturro or the quarterly financial statements would have
revealed the problem, and the failure to provide such over-
sight indicates a lack of ordinary business care and pru-
dence. We accordingly reject Diamond Plating’s invitation to
excuse its noncompliance on the basis of Scaturro’s inaction,
and conclude that Diamond Plating has failed to carry its
heavy burden of showing reasonable cause for nonpayment
of taxes.
III. Conclusion
For the reasons stated herein, we AFFIRM the decision of
the district court.
No. 04-2199 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-6-04 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2997444/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1828
IN RE:
SIDNEY WEINSCHNEIDER,
Debtor-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 C 5274—Joan B. Gottschall, Judge.
____________
ARGUED NOVEMBER 10, 2004—DECIDED JANUARY 18, 2005
____________
Before POSNER, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Sidney Weinschneider, a Chapter 7
debtor in bankruptcy, appeals from the district court’s af-
firmance of an order of the bankruptcy court denying his
request for attorney fees from the bankruptcy estate.
A brief history of the case may provide context for
Weinschneider’s request. He filed for bankruptcy under
Chapter 11 after his nursing home business ran into finan-
cial difficulties. The proceeding was converted to a Chapter 7
case and Daniel Hoseman was appointed trustee. Soon after
the conversion, a committee of unsecured creditors filed an
adversary action against Weinschneider, demanding that he
turn over certain property to the estate. The trustee, on
2 No. 04-1828
behalf of the creditors, settled that litigation. In connec-
tion with the settlement, the trustee executed a contract
containing a release and covenant not to sue. Under the
document, the trustee agreed to release “all claims, known
or unknown” against Weinschneider, his wife, and certain
trusts. In addition, the trustee agreed not to institute, pros-
ecute, or participate in any action to collect or enforce any
claims, “known or unknown” that the estate could have
against Weinschneider, his wife, or the trusts.
While the bankruptcy case was proceeding, Weinschneider
filed a breach of contract action in Illinois state court against
his former business associates, claiming a 23 percent own-
ership in their nursing home management operation. Orig-
inally, Weinschneider did not inform the trustee of the ex-
istence of the lawsuit. However, in response to
Weinschneider’s second amended complaint, the defendants
to the state court lawsuit alleged that the case belonged in
the bankruptcy court. At that point, the state court judge
instructed the parties to give the bankruptcy trustee notice
of the pending suit.
After he learned of the state court action, the trustee
brought an adversary complaint against Weinschneider in
the bankruptcy court, seeking a declaratory judgment that
the state court lawsuit was the property of the bankruptcy
estate. Weinschneider raised, as a defense to the lawsuit,
the release and covenant not to sue. In response, the trustee
argued that Weinschneider fraudulently induced the exe-
cution of the covenant and the release by failing to disclose
all of his business interests, and that rendered the release
and covenant void.
After a trial on the adversary action, the bankruptcy court
ruled for the trustee. He found that Weinschneider fraudu-
lently induced the execution of the covenant and the
release. On appeal, the district court reversed, finding that
the covenant and release were not fraudulently induced and
No. 04-1828 3
that those documents barred the trustee’s suit. The district
court entered judgment for Weinschneider. We affirmed the
judgment. Hoseman v. Weinschneider, 322 F.3d 468 (7th
Cir. 2003).
With that backdrop, we finally arrive at the proceeding
giving rise to this appeal. After our decision, Weinschneider
filed a motion with the bankruptcy court seeking over
$500,000 in attorney fees and costs he claimed he incurred
in successfully defending against the declaratory judgment
action. The bankruptcy court denied his motion and the dis-
trict court affirmed. Weinschneider’s current appeal is from
that order. He contends that 11 U.S.C. §§ 503(b)(1)(a) and
507(a)(1) and Reading Co. v. Brown, 391 U.S. 471 (1968),
permit him to recover as an administrative expense his
damages (i.e., attorney fees) for breach of the covenant not
to sue; that Illinois law permits him to recover damages (as
in attorney fees) for the breach of a covenant not to sue; and
that the contract, which includes the covenant not to sue,
allows the recovery of attorney fees for breach of the cove-
nant. We reject each contention.
Reading is of no help to Weinschneider. In that case, a
building owned by the debtor burned while the debtor was
under the protection of a bankruptcy receivership. An ad-
jacent building was destroyed by the fire. The owner of the
adjacent building claimed that the damages he suffered in
the fire should be considered an administrative expense and
receive priority in the bankruptcy action. The Court found
that the claim was allowable as an “actual and necessary”
expense:
In the first place, in considering whether those injured
by the operation of the business during an arrangement
should share equally with, or recover ahead of, those for
whose benefit the business is carried on, the latter
seems more natural and just.
4 No. 04-1828
Reading, 391 U.S. at 482. This statement reveals at least
three things which differentiate that case from
Weinschneider’s. First, the Reading action was a claim for
tort damages; that is, the destruction of the building, which
occurred on the trustee’s watch. Second, the beneficiary of
the Court’s holding was a third party. And finally, the issue
was one of priorities. In other words, it was clear that
Reading had a claim based on the trustee’s negligence; the
issue was whether his claim should take priority over other
claims.
Here, Weinschneider is, of course, not a third party, and
the relief he seeks is attorney fees to defend a case brought
against him by a trustee, who was acting properly. Reading
cannot provide the basis of his claim for attorney fees.
Nor can his claim arise from the Bankruptcy Code itself.
Sections 503 and 507 do not help Weinschneider establish
his claim. Section 503(b)(1)(A) permits the payment of “ac-
tual, necessary costs and expenses of preserving the estate,
including wages, salaries, or commissions for services ren-
dered after the commencement of the case” as administra-
tive expenses. Section 503(b)(2) concerns the payment of
compensation, including attorney fees, as administrative
expenses. It limits those fees to “compensation and reim-
bursement awarded under section 330(a).” What § 330
means, however, has not always been clear. See In re Pro-
Snax Distribs., Inc., 157 F.3d 414 (C.A.5 1998); In re
American Steel Prod., Inc., 197 F.3d 1354 (C.A.11 1999); but
see In re Ames Dep’t Stores, Inc., 76 F.3d 66 (C.A.2 1996); In
re Top Grade Sausage, Inc., 227 F.3d 123 (C.A.3 2000); In
re Century Cleaning Servs., Inc., 195 F.3d 1053 (C.A.9
1999).
The difference in interpretation arose after the statute
was revised. Prior to the revision, § 330 allowed reasonable
compensation for actual and necessary services performed
by a “professional person employed under section 327 or
No. 04-1828 5
1103 of this title, or to the debtor’s attorney.” (Emphasis
added.) The revision in § 330(a)(1) dropped the words “or to
the debtor’s attorney,” and the statute now says that a court
may award a “professional person employed under section
327 or 1103” reasonable compensation for actual and
necessary services. The effect was to lump attorneys with
persons who must be employed under § 327 (the relevant
section for our purposes) in order to be compensated for
their services; whereas before the revision they were
exempt from the requirements of § 327. The difference is
significant because § 327 authorizes the trustee to employ
an attorney “with the court’s approval.” The issue then arose
as to whether attorneys could only be compensated out of
the estate if they were approved by the court or whether the
omission of the words “or to the debtor’s attorney” was
inadvertent, causing the statute to be ambiguous and allow-
ing a conclusion that Congress must have meant to continue
to exempt attorneys from the § 327 requirements.
The Supreme Court has recently eliminated any confusion
on this point. In Lamie v. U.S. Trustee, 1245 S. Ct. 1023
(2004), the Court determined that the revised § 330 means
what it says and that §§ 327 and 330, taken together, pro-
hibit compensation awards from a Chapter 7 estate to an
attorney unless the attorney is employed as authorized by
§ 327:
[W]e hold that § 330(a)(1) does not authorize compensa-
tion awards to debtors’ attorneys from estate funds,
unless they are employed as authorized by § 327. If the
attorney is to be paid from estate funds under § 330(a)(1)
in a chapter 7 case, he must be employed by the trustee
and approved by the court.
Lamie, 1245 S. Ct. at 1032.
All of which means that the basis for an award of fees in
this case can only come from state law. And on this point,
Illinois law is clear and unhelpful to Weinschneider. Illinois
6 No. 04-1828
follows the American rule, under which attorney fees are
not available unless the parties have agreed to them or a
statute provides for them. In Ritter v. Ritter, 381 Ill. 549,
557, 46 N.E.2d 41, 45 (1943), the Supreme Court of Illinois
stated:
The cases all confirm the rule that attorneys fees and
expenses of litigation can not be recovered in a subse-
quent suit as damages by a successful plaintiff who has
been forced into litigation by reason of the defendant’s
wrongful conduct.
Slightly more recently, the Illinois Appellate Court reaf-
firmed that principle in Child v. Lincoln Enterprises, Inc.,
51 Ill. App. 2d 76, 82, 200 N.E.2d 751, 754 (1964), which,
like the case before us, involved damages for breach of a
covenant not to sue. The court stated:
Attorney fees and the ordinary expenses and burden of
litigation are not allowable to the successful party in
the absence of an agreement or stipulation specifically
authorizing the allowance of attorney fees, or in the ab-
sence of a statute providing for the taxing of attorney
fees against the losing party.
Unfortunately for Weinschneider, the contract in this case
does not contain a provision for attorney fees, nor is there
a statute providing for fees in this situation. His claim for
attorney fees as an administrative expense was properly
denied, and, accordingly, we affirm the judgment of the
district court.
No. 04-1828 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-18-05 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2998852/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2006*
Decided March 24, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-2882
ERIC ADAMS, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of Illinois
v. No. 05-393-WDS
B. A. BLEDSOE,** William D. Stiehl,
Respondent-Appellee. Judge.
ORDER
Eric Adams, an inmate at the federal penitentiary in Marion, Illinois,
petitioned for an “emergency” writ of habeas corpus under 28 U.S.C. § 2241,
claiming that the former warden denied him due process by changing his housing
assignment after he was found guilty of engaging in prohibited sexual conduct.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
** Pursuant to Fed. R. App. P. 43(c), we have substituted the petitioner’s
current custodian, B.A. Bledsoe, as the respondent.
No. 05-2882 Page 2
The district court promptly dismissed the petition with the explanation that Adams
has no federally protected liberty interest in his housing assignment and, thus, did
not meet the “in custody” element of § 2241. Adams appeals because he does not
wish to be housed in an area where, he says, there will be “absolutely no female
contact” for six months.
The district court was correct. To bring an action under § 2241, Adams must
demonstrate that he is “in custody” as a result of the sanction he challenges. See 28
U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curium); Glaus v.
Anderson, 408 F.3d 382, 386 (7th Cir. 2005). But Adams’s change in housing
quarters does not affect either the fact or duration of his confinement, so habeas
corpus relief is unavailable. See Glaus, 408 F.3d at 387 n.**; Falcon v. United
States Bureau of Prisons, 52 F.3d 137, 138 (7th Cir. 1995); Graham v. Broglin, 922
F.2d 379, 381 (7th Cir. 1991). A § 2241 petition is proper only when the prisoner
seeks to “get out” of custody in a meaningful sense, Pischke v. Litscher, 178 F.3d
497, 499 (7th Cir. 1999), and Adams’s contention that he is entitled to more
favorable housing does not satisfy this standard.
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2998864/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2006*
Decided March 23, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1686
YETUNDE BALOGUN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A77-648-768
ALBERTO R. GONZALES,
Respondent.
ORDER
Nigerian citizen Yetunde Balogun seeks review of the Board of Immigration
Appeals’ (BIA) decision denying her motion to reopen removal proceedings. Because
we believe that the BIA did not abuse its discretion in deeming Balogun’s motion
untimely, we deny her petition.
In December 1999, Balogun attempted to enter the United States without a
valid entry document, was placed in custody of the Immigration and Naturalization
Service, and was charged with removal. She conceded removability, but applied for
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1686 Page 2
asylum, claiming a fear of female genital mutilation if she were to return to Nigeria.
In June 2001, the immigration judge denied her application for asylum and ordered
removal; the BIA summarily affirmed that decision in December 2002. Two months
later, in February 2003, Balogun married a United States citizen; a few months
later she gave birth to their first child. In May 2003, Balogun’s husband filed an I-
130 immigrant visa petition on Balogun’s behalf.
Balogun then waited 19 months and, in December 2004, moved to reopen the
removal proceedings so that she could seek adjustment of status based on her
marriage. To file a motion to reopen, however, Balogun had only 90 days from the
date of the final administration decision, see 8 C.F.R. § 1003.2 (c)(3), which here was
December 2002. The BIA therefore denied her motion as untimely, adding that it
found no exception to the timeliness bar.
We review a BIA’s denial of a motion to reopen a case for abuse of discretion.
Singh v. Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005). Exceptions to the 90-day
filing rule may be made only based on “changed circumstances arising in the
country of nationality,” and then only if “such evidence is material and was not
available and could not have been discovered or presented at the previous hearing.”
8 C.F.R. § 1003.2(c)(3)(ii); Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004).
Balogun first argues that her untimeliness should be excused because of
“pressing personal circumstances,” including her marriage, pregnancy, and birth of
her child. But Balogun’s marriage and the subsequent birth of her child are
changes in personal circumstances, not conditions in Nigeria, and therefore do not
trigger an exception to the 90-day filing deadline. See Selimi, 360 F.3d at 739.
Furthermore, to the extent Balogun argues that the BIA should have reopened her
case sua sponte in the “interest of justice,” we note that when the BIA declines to
reopen a case sua sponte, that decision is discretionary and unreviewable. Pilch v.
Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003).
Balogun next argues that the 90-day filing deadline should be equitably
tolled because she was “ignoran[t] of the procedural niceties of immigration law”
and did not know to seek reopening of her asylum claim until two years after her
husband had filed an immigrant visa on her behalf. As the government points out,
however, Balogun failed to explicitly present this issue to the BIA and thus failed
to exhaust all administrative remedies as required by 8 U.S.C. § 1105a(c). Awad v.
Ashcroft, 328 F.3d 336, 340 (7th Cir. 2003).
Finally, Balogun argues that the Board improperly denied the motion to
reopen because she has proof of her bona fide marriage (i.e. children, joint bank
accounts and insurance policies), and thus has established prima facie eligibility for
adjustment of status to permanent resident. She acknowledges that her motion
No. 05-1686 Page 3
was filed well outside the 90-day window, but counters that it was impossible for
her to file a timely motion to reopen because her request for reopening stemmed
from her marriage that did not occur until one month before the expiration of the 90
days.
Under the regulation, the Board “has discretion to deny a motion to reopen
even if the party moving has made out a prima facie case for relief.” 8 C.F.R. §
1003.2(a). One of the requirements that the Board has set forth in evaluating a
motion to reopen to adjust status based on marriage is that the motion be timely
filed. See In re Valarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002), quoted in
Ssali v. Gonzales, 424 F.3d 556, 565 (7th Cir. 2005). Even though Balogun married
in February 2003, shortly before the 90-day deadline to file a motion to reopen, she
did not seek reopening until 19 months later. Given this untimely filing, we cannot
say that the BIA abused its discretion by denying her motion to reopen regardless of
whether she has established prima facie eligibility for adjustment of status.
Roberts v. Gonzales, 422 F.3d 33, 36 (1st Cir. 2005) (denying petition for review of
untimely motion to reopen despite petitioner’s bona fide marriage to United States
citizen; petitioner among other things waited nearly five years after deadline before
filing motion to reopen).
The petition is DENIED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000425/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2007
Decided April 6, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3146
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern District of
Indiana, Indianapolis Division
v.
No. 1:05CR00082-001
DEMETREOUS BROWN,
Defendant-Appellant. Larry J. McKinney,
Chief Judge.
ORDER
Demetreous Brown pleaded guilty to one count of conspiring with intent to
distribute more than 50 grams of crack and more than five kilograms of a substance
containing cocaine, see 18 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii)-(iii), eleven counts of
distributing crack cocaine, see 18 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and (b)(1)(B)(iii),
and one count of possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1). The
district court sentenced him to 220 months in prison. Brown appealed, but his
counsel now moves to withdraw because he cannot discern a nonfrivolous basis for
appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Brown opposed his
attorney’s submission, see Cir. R. 51(b), and moved for appointment of new counsel.
No. 06-3146 Page 2
We limit our review to the potential issues identified by counsel and Brown. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Brown in his Rule 51(b) response says that he wants his conviction vacated,
and we construe this as a desire to withdraw his guilty plea.1 He did not move to
withdraw his plea in the district court, so our review would be for plain error. See
United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal-Tamayo,
467 F.3d 630, 632 (7th Cir. 2006). Brown asserts essentially that he should be
allowed to withdraw his plea because it was not knowing and voluntary. He says
that his plea was not knowing and voluntary because he did not understand the
nature of the conspiracy charge against him, see Fed. R. Crim. P. 11(b)(1)(G). Had
he understood the charge, he says, he would have known that he had meritorious
defenses against it. For instance, he asserts that his eleven sales of crack to a
government agent establish only that he was accused of “conspiring with the
government” or that he was merely a buyer/seller of drugs, rather than a
conspirator.
But the record does not support Brown’s claims. Not only did the
superceding indictment properly charge a conspiracy among Brown and nine non-
government agents, but the district court also substantially complied with Rule 11
of the Federal Rules of Criminal Procedure, as it was required to do to ensure that
Brown’s guilty plea is knowing and voluntary, see United States v. Blalock, 321 F.3d
686, 688 (7th Cir. 2003). Conspiracy is “generally considered a rather complicated
offense,” see id. at 689, but Brown has not argued that factors such as his age,
intelligence, or education affected his understanding of the consequences of his plea.
The district court properly explained the conspiracy charge by telling Brown its
elements and the burden of proof that the government would have to bear. Further,
the government proffered evidence supporting a conspiracy, including evidence that
Brown and others worked together to sell drugs and a gun and to avoid police
detection; communicated about upcoming drug shipments and fears of police
surveillance; and replaced their cell phones as soon as Brown thought he saw
undercover officers. Where, as here, the district court explains the conspiracy
charge, and the government provides the factual basis for it, it will suffice to ensure
1
Although we construe the nature of his challenge as one to the
voluntariness of his plea, Brown in fact labels this claim as one for ineffective
assistance of counsel. He basically charges counsel with failing to recognize and
inform him about the law and defenses to the charges against him. To the extent
Brown wishes to raise ineffective assistance of counsel claims, however, those are
best brought in a collateral attack. See, e.g., United States v. Rezin, 322 F.3d 443,
445 (7th Cir. 2003).
No. 06-3146 Page 3
that the guilty plea was knowing and voluntary. See id. Any such challenge here
would be frivolous.
We turn next to counsel’s consideration of whether Brown could challenge his
sentence. Counsel first evaluates whether the district court should have credited
Brown’s claim that the government engaged in sentencing manipulation by
purchasing crack from him eleven times before arresting him. Under the doctrine
of sentencing manipulation, a sentencing court may not use evidence to increase a
defendant’s sentence “if the government procured the evidence through outrageous
conduct” just to increase the defendant’s guidelines imprisonment range. United
States v. Wagner, 467 F.3d 1085, 1090 (7th Cir. 2006) (quoting United States v.
Messino, 55 F.3d 1241, 1256 (7th Cir. 1995)). But sentencing manipulation is not
recognized as a defense in this circuit; “[i]t is within the discretion of law
enforcement to decide whether delaying the arrest of the suspect will help ensnare
co-conspirators, give the law enforcement greater understanding of the nature of
the criminal enterprise, or allow the suspect enough ‘rope to hang himself.’” Id.
(quoting United States v. Garcia, 79 F.3d 74, 75 (7th Cir. 1996)). Counsel correctly
concludes that the district court properly rejected Brown’s argument.
Counsel also questions whether Brown could challenge the district court’s use
of the 100:1 sentencing disparity between crack cocaine and powder cocaine in
calculating Brown’s sentencing range. But a district court must to follow the 100:1
ratio in calculating defendant’s guidelines range because the ratio reflects the
“policy choices made by Congress and by the Sentencing Commission.” United
States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006). A challenge to Brown’s sentence
on this ground would be frivolous.
Counsel also considers whether Brown could challenge the reasonableness of
his sentence under 18 U.S.C. § 3553(a). Counsel questions whether Brown could
argue that his tragic personal background, which included one parent’s murder and
the other’s suicide, merited a lower sentence.
Brown’s sentence falls within the properly calculated guidelines range and
would therefore be presumed reasonable. United States v. Gama-Gonzalez, 469
F.3d 1109, 1110 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Cf. United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May
1, 2006), cert. granted, 75 U.S.L.W 3246 (U.S. Nov. 3, 2006) (No. 06-5754) (granting
writ of certiorari to decide whether presuming sentence within guidelines range to
be reasonable is consistent with United States v. Booker, 543 U.S. 220 (2005)). With
or without a presumption of reasonableness, however, a reasonableness challenge
here would be frivolous because the district court properly considered the
sentencing factors in 18 U.S.C. § 3553(a) in arriving at Brown’s sentence. The court
considered Brown’s properly calculated guidelines range, see id. § 3553(a)(4),
No. 06-3146 Page 4
Brown’s criminal history, see id. § 3553(a)(1), the seriousness of the current
offenses, see id. § 3553(a)(2)(A), Brown’s difficult childhood experiences of losing
both parents, see id. § 3553(a)(1), the supportive letters written by Brown’s family,
see id. § 3553(a)(1), the need for deterrence, see id. § 3553(a)(2)(B), and the need to
protect the public, see id. § 3553(a)(2)(C). Because there were “an awful lot of
drugs” involved and because the conviction involved a gun, which raised a
“possibility of violence,” see id. § 3553(a)(2)(A), the court found that a sentence
within the guidelines range was appropriate. The court therefore sentenced Brown
to 220 months’ imprisonment on the drug counts and 120 months’ imprisonment on
the gun count. Counsel has not identified any factors within 18 U.S.C. § 3553(a)
that would compel a lower sentence.
Finally, Brown raises two more challenges that are readily refuted. First, he
argues that he was unaware that he was being charged with distributing crack
cocaine, as opposed to other forms of cocaine base. But the superceding indictment,
to which he pleaded guilty, charged him with eleven counts of distributing “crack,”
and the government’s proffered evidence repeatedly referred to Brown’s sales of
“crack,” so a challenge on that basis would be frivolous. Second, he challenges the
district court’s calculation of his offense level, suggesting that the district court
double-counted his firearm possession by adding two levels to his offense level for
his possession of a firearm in connection with the drug offenses, see U.S.S.G.
§ 2D1.1(b), when he had already pleaded guilty to possessing the same firearm as a
felon, see 18 U.S.C. § 922(g)(1). But it is not double-counting to add two levels
under § 2D1.1(b) where the defendant has pleaded guilty to a separate § 922(g)(1)
offense involving the same firearm, see United States v. Pierce, 388 F.3d 1136, 1138-
39 (8th Cir. 2004); United States v. Taylor, 248 F.3d 506, 516-17 (6th Cir. 2001).
Any challenge to the guidelines calculation on this basis would be frivolous.
Brown’s remaining challenges to his sentence are also frivolous and merit no
discussion.
Accordingly, counsel’s motion to withdraw is GRANTED, Brown’s motion to
appoint substitute counsel is DENIED, and the appeal is DISMISSED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3854729/ | Argued May 4, 1934.
The decree is affirmed on the opinion of TRIMBLE, President Judge of the orphans' court. The appellant is to pay the costs. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1726743/ | 970 So. 2d 737 (2007)
Sandra K. DOMINQUEZ and Thomas Garner, Appellants
v.
Jeff PALMER, Individually, Mortgage Equity Lending, Inc., Wes Brewer d/b/a Wes Brewer Cattle Company and Wes Brewer, Individually, Appellees.
No. 2006-CA-01752-COA.
Court of Appeals of Mississippi.
November 27, 2007.
*738 Orvis A. Shiyou, Hattiesburg, attorney for appellants.
Michael Adelman, Hattiesburg, attorney for appellees.
Before KING, C.J., CHANDLER and CARLTON, JJ.
CHANDLER, J., for the Court.
¶ 1. On September 15, 2006, the Circuit Court of Forrest County granted a summary judgment in favor of the appellees, Jeff Palmer, individually, Mortgage Equity Lending, Inc., Wes Brewer d/b/a Wes Brewer Cattle Co., and Wes Brewer, individually. Aggrieved, the appellants, Sandra Dominquez and Thomas Garner, appeal. They assert that summary judgment was improper because they presented evidence on the following issues:
I. The standard of review is de novo, and the motion for summary judgment was not supported by affidavits.
II. There existed between the parties an implied oral brokerage contract with certain and definite terms.
III. The appellees failed to use reasonable care in seeking a loan on their behalf, and there was no evidence that the appellees used their best efforts.
IV. The appellees committed a breach of fiduciary duty, fraud, and a violation of the Mississippi Consumer Loan Broker Act.
V. The appellees waived the right to enforce statutorily mandated arbitration.
VI. The appellees should reimburse them for insufficient funds checks.
VII. They suffered emotional distress because of the actions of the appellees, and there was evidence to support negligent supervision and piercing the corporate veil.
¶ 2. Finding no error, we affirm.
*739 FACTS
¶ 3. Sometime in the fall of 2001, Sandra Dominquez and her husband, Thomas Garner, contacted Mortgage Equity Lending, Inc. about obtaining an equity loan against their home. They claim to have initially met with Mortgage Equity's agent, Wes Brewer, who remained their contact with the company throughout the following events. At this first meeting, they allege that they completed a loan application and discussed the financing terms.
¶ 4. At the next meeting with Brewer, Dominquez claims that he promised that she and her husband would be able to close on a loan by Thanksgiving of that year. When this date passed, Dominquez said that Brewer assured her that it would close soon. After this, she claims he continued to inform her of more closing dates only to change them as they arrived.
¶ 5. The record reflects that Brewer could not secure a loan for the couple, and it also shows that he did attempt to get them a loan. As pointed out by testimony, and as found by the judge, Dominquez's low credit score was the reason that she could not get a loan from either Mortgage Equity or from another lender, Southeastern Financing Co. Prior to requesting the services of Mortgage Equity, Dominquez and Garner had sought the services of Southeastern Financing, which was also unable to obtain financing for them. When Brewer later applied for a loan solely in Garner's name, however, he was able to secure $80,000 worth of financing.
¶ 6. Garner then used the $80,000 loan to buy his wife's house for $127,000. In purchasing the house, however, it was questionable why the warranty deed represented Garner and Dominquez as single and listed the home as rental property, when they were actually married and the house was their residence.
¶ 7. Dominquez and Garner testified that they were always free to seek financing from another lender. They alleged that they did not go elsewhere because they relied on Brewer's assurances that a loan would be forthcoming. It was because of those continued promises, they claimed, that their already bad financial condition worsened.
¶ 8. While these events were ongoing, Dominquez and Garner received checks from Wes Brewer and Wes Brewer Cattle Co. that they claim were intended to allow them to pay their living expenses during the ongoing loan process. Nevertheless, they admitted that some of the checks were actually payment to Garner for services that he performed for Brewer. They could not specify the specific purpose for each check nor which checks remained outstanding.
¶ 9. On April 9, 2003, Dominquez and Garner filed suit. On May 19, 2004, Palmer and the other appellees filed a motion for summary judgment. The judge entered an order on September 15, 2006, granting summary judgment against Dominquez and Garner and dismissing their complaint with prejudice.
ISSUES AND ANALYSIS
I. Standard of review for summary judgment
¶ 10. We review the trial court's grant of a motion for summary judgment under a de novo standard. Pride Oil Co. v. Tommy Brooks Oil Co., 761 So. 2d 187, 190(¶ 9) (Miss.2000). Furthermore, this Court must review all the evidentiary material before it in a light most favorable to the party against whom the motion was granted. Id.
¶ 11. Rule 56(b) of the Mississippi Rules of Evidence provides that, "A party against whom a claim . . . is asserted . . . *740 may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." "As to issues on which the nonmovant bears the burden of proof at trial, the movant needs only to demonstrate an absence of evidence in the record to support an essential element of the movant's claim." Pride Oil, 761 So.2d at 191(¶ 10).
¶ 12. Mere allegations are insufficient to defeat a motion for summary judgment. Richardson v. Norfolk S. Ry., 923 So. 2d 1002, 1008(¶ 8) (Miss.2006). The party opposing the motion must set forth specific facts that show that a genuine issue of fact exists. Id. To survive summary judgment, a claim must be based on more than a scintilla of evidence. Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss.1996). "It must be evidence upon which a fair-minded jury could return a favorable verdict." Id. Unsubstantiated assertions are insufficient. Cong Vo Van v. Grand Casinos of Miss., Inc., 767 So. 2d 1014, 1024(¶ 27) (Miss.2000).
¶ 13. In this case, Palmer's motion for summary judgment sufficiently alleged that Dominquez had not presented any genuine issues of material fact. The burden then fell on Dominquez to present affirmative evidence to show that there were such genuine issues of material fact. Pride Oil, 761 So.2d at 191(¶ 10). Accordingly, the claim that summary judgment was improper because Palmer failed to support his motion with an affidavit is without merit.
II. Oral contract
¶ 14. Dominquez next argues that the trial court's finding, that no contract existed because she could not identify any terms "sufficiently definite to be enforceable," was in error. She claims that she presented evidence of an implied oral brokerage contract with certain and definite terms.
¶ 15. The only authority cited by Dominquez to support her position is the case of Carmichael v. Agur Realty Co., 574 So. 2d 603, 606-07 (Miss.1990). In Carmichael, the supreme court affirmed the finding of an implied brokerage contract when a purchaser refused to pay the real estate broker who assisted him in the purchase of a hotel. Id. at 610.
¶ 16. Carmichael is easily distinguishable from the case at hand in that it involved a real estate broker's suit to recover fees for services that he actually provided. In Carmichael, the parties signed a commission agreement as some evidence of an agreement. The issue in that case was a lack of a formal brokerage contract. This case differs from Carmichael in that Dominquez was not seeking restitution for services that were performed. Here, Dominquez claims there was an oral contract that required Palmer to obtain a mortgage loan for her within thirty days. However, there was no formal writing, and none of the parties can point to specific terms of the alleged contract to which they were to be held.
¶ 17. "A contract that arises from the conduct of the parties, also known as a contract implied in fact, has the same legal effect as an express contract. It carries as much weight as, and is as binding as an express contract." Franklin v. Franklin, 858 So. 2d 110, 120(¶ 34) (Miss.2003) (citing Magnolia Fed. Sav. & Loan Ass'n v. Randal Craft Realty Co., 342 So. 2d 1308, 1312 (Miss.1977)). The supreme court has previously held that "any conduct of one party from which the other party may draw the inference of a promise is effective as such and the conduct of the parties is viewed as a reasonable man would to determine the existence or not of the contract implied in *741 fact." Id. at 121(¶ 35) (citing Cooke v. Adams, 183 So. 2d 925, 927 (Miss.1966)).
¶ 18. The testimony from Dominquez and Garner revealed that they dealt with Brewer who allegedly promised that, through Mortgage Equity, he would obtain a loan for them. They claim that, sometime in the fall of 2001, Brewer promised he could get a loan at a promised rate within thirty days. Under the alleged oral contract, Brewer promised to use his best efforts to get a loan for Dominquez within the thirty days in exchange for a brokerage fee. Brewer nor any of the appellees, however, received any benefit from the alleged contract. Furthermore, Dominquez was not bound to the services of Brewer. It was undisputed that she was free to seek out the services of another mortgage broker at any time.
¶ 19. Dominquez ignores the fact that Brewer did attempt to get a loan and, ultimately, he was successful in obtaining some financing in Garner's name. Instead she complains that he promised to have the loan within the thirty days and that he never even tried to find a loan until after that period had expired. The trial court's findings were that Dominquez's poor credit rating was responsible for Brewer's initial inability to obtain a loan for her. Supporting this finding was the fact that, before contacting Brewer, she had previously approached Southeast Financing Co. about a loan, but they were also unable to help her.
¶ 20. Even taking the evidence in the light most favorable to Dominquez, we cannot say the trial court was in error in granting summary judgment. What she provided to the court were undeveloped assertions that lacked any specific evidence and which were insufficient to create any questions of material fact.
¶ 21. According to Dominquez's argument, she and Brewer perfected a contract "[i]n the fall of 2001," which required Brewer to secure a loan within thirty days. There was no evidence, however, beyond Dominquez's allegations that there was a contract between the parties, nor any evidence as to any specific contractual provisions. If she was dissatisfied with the services of Mortgage Equity, she was free to seek a loan from another lender at any time. Also, Mortgage Equity did not receive any benefit from the alleged contract. Upon applying a de novo review of this issue, we do not find that there was sufficient evidence of a contract to withstand summary judgment. We find the trial judge was not in error in granting summary judgment against Dominquez. Accordingly, this issue is without merit.
III. Whether Brewer used reasonable efforts to obtain a loan
¶ 22. In regard to the alleged oral contract, Dominquez next claims that Brewer did not use reasonable care nor his best efforts in seeking a loan on her behalf. Dominquez does not, however, specify what Brewer should have done to fulfill the alleged best effort requirement. According to her brief, it seems her complaint was essentially that Brewer did not obtain a loan for her within thirty days.
¶ 23. Dominquez asks us to draw a parallel between this case and the case of Stringer v. Bufkin, 465 So. 2d 331 (Miss. 1985). In Stringer, the supreme court held that summary judgment for an insurance agent was improper when he had told plaintiffs that their uninsured motorist coverage had been extended immediately. Id. at 334. The plaintiffs later were in an accident and sued when they learned that they had no uninsured motorist coverage. Id. at 332.
¶ 24. Stringer is not supportive of Dominquez's claim that Brewer is liable because he failed to use his best efforts in *742 attempting to secure a loan for her. As we stated previously, there is nothing in the record, beyond the vague and unsupported allegations of Dominquez and Garner, that tends to show that a contract existed between them and Mortgage Equity. Not only was there no specific evidence of a contract, but Dominquez also failed to demonstrate how, beyond exceeding the allegedly agreed-to thirty days, Brewer did not use his "best efforts" to find a loan. She merely asserts that Brewer's failure to secure a loan within the thirty days means he did not use his best efforts. This argument, however, ignores Dominquez's admittedly bad credit history and the fact that, just prior to contacting Brewer, Southeastern Financing had also been unable to get a loan for Dominquez.
¶ 25. In light of the fact that Dominquez presented no evidence of how Brewer failed to use his best efforts in his attempts to secure a loan for her, we find that the trial court properly granted summary judgment on this issue. Accordingly, we find it is without merit.
IV. Breach of fiduciary duty, fraud, and violation of the Mississippi Consumer Loan Broker Act
A. Fiduciary duty
¶ 26. In Mississippi, a fiduciary relationship may arise in the following situations:
(1) the activities of the parties go beyond their operating on their own behalf, and the activities [are] for the benefit of both; (2) where the parties have a common interest and profit from the activities of the other; (3) where the parties repose trust in one another; and (4) where one party has dominion or control over the other.
Robley v. Blue Cross/Blue Shield, 935 So. 2d 990, 995(¶ 12) (Miss.2006) (quoting Univ. Nursing Assocs., PLLC v. Phillips, 842 So. 2d 1270, 1274(¶ 9) (Miss.2003)). We do not ordinarily impose fiduciary duties upon contracting parties. Id. at 994-95(¶ 11). Furthermore, as a matter of law, a mortgagor-mortgagee relationship is usually not a fiduciary relationship. Merchants & Planters Bank v. Williamson, 691 So. 2d 398, 403 (Miss.1997). In Williamson, the court noted that to hold otherwise would be "to impose fiduciary concepts upon what is, in many cases, a standard contractual relationship between parties with fundamentally different interests." Id. at 404.
¶ 27. We do not find there were any facts here to suggest that a fiduciary relationship arose between Dominquez and Brewer or the other appellees. As in Williamson, this was merely an arms-length business transaction, and there was no evidence to suggest that anyone exercised any dominion and control over Dominquez.
B. Fraud
¶ 28. In regard to Dominquez's claim of fraud, she must put on evidence of the following:
(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.
Hobbs Auto., Inc. v. Dorsey, 914 So. 2d 148, 153(¶ 18) (Miss.2005) (quoting Spragins v. Sunburst Bank, 605 So. 2d 777, 780 (Miss. 1992)). Rule 9(b) of the Mississippi Rules of Civil Procedure further provides that, in all allegations of fraud, "the circumstances constituting fraud or mistake shall be stated with particularity."
*743 ¶ 29. With regard to the elements of a claim of fraud, Dominquez's claim contains no allegations of specific instances of fraud. As such, we do not find it was error to grant summary judgment on this issue; therefore, it is without merit.
C. Mississippi Consumer Loan Broker Act
¶ 30. Dominquez contends that Brewer and the other appellees violated section 81-19-23 of the Mississippi Code Annotated (Supp.2007). Section 81-19-23 provides, in pertinent part, as follows:
(1) No consumer loan broker may:
. . .
(g) Make a false promise in order to influence or induce a person to use the consumer loan broker's services, whether made through agents, employees, advertising or otherwise;
(h) Misrepresent or conceal essential or material facts regarding the consumer loan broker's services on any transaction under this chapter.
¶ 31. We reiterate that, besides her allegations, Dominquez has not put forth any specific evidence of any wrongdoing by the appellees that would be sufficient to withstand summary judgment. This reasoning is equally applicable to this issue; therefore, we find it to be without merit.
V. Waiver of arbitration
¶ 32. Dominquez next claims that it was improper to grant summary judgment on her claim under Section 75-24-15 of Mississippi Code Annotated (Rev.2000). In support of this she cites Phillips, 842 So.2d at 1276(¶ 17), for the proposition that a party who actively participates in litigation waives the right to enforce arbitration. She argues that this Court should again draw a parallel, this time between Phillips and the present case.
¶ 33. We find Phillips to be inapplicable to the case at hand. Phillips involved a private arbitration agreement, whereas section 75-24-15(2) contains a statutory requirement with which a plaintiff must comply. In Phillips, the supreme court ultimately found that the defendant had not waived his right to compel arbitration, either by participating in litigation or by delaying in his demand for arbitration. Phillips, 842 So.2d at 1277-78 (¶¶ 22, 27). While we do not find Phillips to be applicable, we, nevertheless, point out that Palmer, in his answer to the complaint and throughout the proceedings, has consistently asserted that Dominquez failed to comply with the statutory requirements.
¶ 34. Section 75-24-15(2) provides as follows: "In any private action brought under this chapter, the plaintiff must have first made a reasonable attempt to resolve any claim through an informal dispute settlement program approved by the Attorney General." Dominquez admits that she did not take any steps to resolve her claim through informal resolution as required by the statute. Accordingly, we find the trial court did not err in granting summary judgment on this claim. This issue is without merit.
VI. Insufficient funds checks
¶ 35. Between Dominquez and Garner, neither knew about the specifics of the checks, and each one stated that the other was the person to ask about them. They admitted that Brewer had "covered" some of the checks but could not identify which checks fell into this category. They also were not able to specify the purpose of each check, namely, whether they were payment for Garner's services or some type of loan to pay the couple's expenses during the loan process.
¶ 36. Because Dominquez put on no evidence regarding which of the checks *744 remained unpaid and whether the checks were payments to Garner for services rendered or for loans, as alleged, we do not find it was improper to grant summary judgment on this issue. This issue is, therefore, without merit.
VII. Emotional distress, negligent supervision, and piercing the corporate veil
A. Emotional distress
¶ 37. The trial court dismissed this issue as an element of damages and not an actual claim. Because all Dominquez's claims were dismissed through summary judgment, we agree that it was not proper to consider whether she could be awarded damages for emotional distress.
B. Negligent supervision and piercing the corporate veil
¶ 38. Dominquez presented no evidence that Mortgage Equity or Palmer were negligent in supervising Brewer. The same is true of her claim that the court should have pierced the corporate veil of Mortgage Equity in order to hold Palmer liable.
¶ 39. Dominquez's claims for emotional distress, negligent supervision, and piercing the corporate veil alleged no issues of material fact, so they were properly dismissed. This issue is without merit.
¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., NOT PARTICIPATING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3854711/ | Argued April 16, 1935.
In April, 1930, plaintiff, a school teacher, entered into a written contract with the directors of the defendant school district, operating a joint high school, under which he was employed as a teacher in Enon Joint High School for the school year (nine months) of 1930-31 at a salary of $180 per month. This contract was drawn in accordance with the directions of Section 1205 of Article XII of the School Code of May 18, 1911, P.L. 309, as amended by the Act of May 7, 1929, P.L. 1576, 24 P. S. § 1126. A material provision thereof reads: "And it is further agreed by the parties hereto that this contract shall continue in force year after year, . . . . . . unless terminated by the teacher at the close of the school term by written resignation presented on or before the close of said school term, or by the Board of School Directors by official written notice presented to the teacher on or before the close of the school term." Under this contract plaintiff taught during the school years 1930-31 and 1931-32 and was paid the salary therein specified.
At the beginning of the school year 1932-33 plaintiff presented himself on the opening day, September 6, 1932, at the school building prepared to perform the services contemplated by the contract throughout that year but was informed by the president and secretary of the defendant board that his services would not be accepted because, as they asserted, his contract had been legally terminated as of the close of the previous school term.
Contending that the contract was in full force and *Page 522
effect for the school year of 1932-33 and that, if he had not been prevented from so doing by the defendant board, he would have earned a salary of $180 per month for that year, or a total of $1,620, plaintiff brought this suit.
The defense interposed was that the contract had been legally terminated by the directors and an "official written notice" of its termination presented to plaintiff "before the close of the school term" of 1931-32. The trial judge instructed the jury that the plaintiff was entitled to recover, but submitted the question whether there should be any mitigation by reason of his failure to use reasonable diligence in securing other employment. The jury rendered a verdict in favor of the plaintiff for the full amount of his claim; defendants' motion for a new trial having been overruled, judgment was entered upon the verdict and this appeal by the directors of the defendant district followed. Reference is made in the opinion of the court below to a motion by defendants for judgment n.o.v., but neither the docket entries, nor the record as printed, indicate that defendants moved for judgment upon the whole record.
The controlling question involved upon this appeal is one of law and arises out of these facts. At a regular meeting of the board of directors of this Consolidated Joint High School, within two fourth class districts, held on March 24, 1932, the matter of the election of teachers for the ensuing school term was under consideration. At this meeting the board adopted a resolution to the effect that plaintiff's contract with it be terminated at the end of the current school term. The minute recording this action reads: "Next in order was election of teachers. Watt moved, Andrews seconded that Mr. Elmer Gerlach's contract with the Joint School Board be cancelled. Motion carried."
The minutes, themselves, disclose that there was an affirmative vote of at least a majority of the directors, *Page 523
but, as recorded, do not show "how each member voted." They also show that of the ten directors, eight, Messrs. Gilmore, Fields, Knepp, Duncan, Watt, Duignan, Foster and Andrews were present when the meeting convened and that another, Walker, "came late."
Over plaintiff's objection, the secretary of the board, Mrs. Clara Andrews, was permitted to testify that she was present during the meeting; that Walker came in before the resolution was offered; and that each of the nine directors present voted in favor of the resolution.
Section 403 of Article IV of the School Code of 1911, supra, (24 P. S. § 334) contains, inter alia, these provisions:
"The affirmative vote of a majority of all the members of the board of school directors in every school district in this Commonwealth, duly recorded, showing how each member voted, shall be required in order to take action on the following subjects:
* * * * *
"Appointing or dismissing district superintendents, assistant district superintendents, associate superintendents, principals and teachers.
* * * * *
"Dismissing a teacher after a hearing.
* * * * *"
The Act of May 29, 1931, P.L. 243, 261, (24 PS, 1934, Cumulative, § 1126) further amending Section 1205 of the School Code, supra, and effective upon approval, provides, inter alia, that the "official written notice" of termination shall be presented to the teacher "sixty days before the close of the school term." As plaintiff admitted the receipt by him not later than March 28, 1932, — a date more than sixty days before *Page 524
the end of the term — of an official written notice, dated March 26, 1932, quoting the provision of his contract relating to the termination thereof and notifying him that it would "end at the close of the present school term, 3d day of June, 1932," we need not consider whether that amendment applies in this case.
There was also involved at the trial an offer of the minutes of a meeting on March 30, 1932, reading: "Vacancy — Duncan nominated John V. Gilmore to fill the vacancy caused by cancelling contract with Mr. Gerlach — Knepp moved nominations close, Fields seconded. Motion carried. Roll call." Then follow the names of eight directors with the word "yes" written after each name. The minute concludes, "Gilmore declared unanimously elected."
At a meeting of the board held on August 30, 1932, a successor to plaintiff having been elected for the school term of 1932-33, the president and secretary were instructed to inform plaintiff, if he presented himself on the first day of the term, that his services would not be accepted.
The record discloses that when the minutes of the meetings of March 24, and March 30, 1932, relative to the termination of the contract and the election of a successor, were offered in evidence in behalf of the defendant board, the offer was objected to by counsel for plaintiff upon the ground that the minutes of March 24th failed to show that the votes had been recorded as required by Section 403 of the code, supra.
This objection was sustained by the trial judge and the minutes of both meetings excluded from the evidence to be considered in the case. Appellants' first and second assignments of error are based upon this ruling.
Offers of the minutes of August 30, 1932, and of the written notice of termination were likewise rejected, except for the limited purpose of showing authority *Page 525
of officers to act; this ruling is assigned as error in the fourth assignment.
The position of the learned trial judge was clearly stated in the following excerpt from his charge — complained of in the third assignment: "They [the joint board] undertook to terminate this contract; had a meeting, passed a resolution and they sent a notice in writing to the teacher here, but we are holding as a matter of law they didn't proceed according to the act of assembly. The legislature of this state has required that when a board of directors either hires a teacher or dismisses him, that they must all vote upon it, all members of the board, and their vote must be recorded in the minutes. Now, that wasn't done in this case, and we hold as a matter of law that this dismissal was not legal, that the notice sent out was not based upon any sufficient action, and that, therefore, this plaintiff has a right to recover, that the contract wasn't terminated, that the board didn't take the proper action, we are holding that as a matter of law, you have nothing to do with it, we are taking the responsibility of that because that is the law as we understand it to be, and you are supposed to take your law and must take your law from the court."
The only question submitted to the jury was whether the defendant district had shown that it was entitled to any mitigation of damages by reason of plaintiff's failure to make reasonable efforts to secure employment elsewhere.
For present purposes, it may be granted that the minutes must speak for themselves and may not be supplemented by the parol evidence of the secretary. It must also be conceded that the secretary did not record the votes in a manner which showed "how each member voted;" in other words, Section 403 of the School Code was not followed and obeyed by the secretary *Page 526
when the board exercised its option to terminate its contract with plaintiff.
We agree with the court below that the pivotal question in this case is whether the termination by a school board of a teacher's contract at "the close of the school term" is one of the "subjects" to which Section 403 applies.
The court below held that the exercising by the board of the option to terminate, vested in it by the terms of the contract, was equivalent to "dismissing" a teacher, and that the action taken by the directors on March 24, 1932, was, therefore, taken upon one of the subjects to which Section 403 applies.
We are not convinced that it was the legislative intent that the requirements of Section 403 should apply to the exercise by a board of the power conferred upon it, under the amendments of 1929 and 1931 to Section 1205, supra, to terminate a teacher's contract at the end of an existing school term.
On the contrary, we think it apparent, when Sections 403, 1208 and 1205 (as amended) are read together, that the legislature made a distinction between "dismissing" a teacher and terminating a teaching contract at the end of a term.
Sections 403 and 1208 of the code have not been amended; each of them refers, inter alia, to "dismissing" teachers; and it may be assumed that the legislature used that word in its ordinary acceptation when applied to some employment — "to remove from": Webster's New International Dictionary.
Section 1208 provides that any principal or teacher "may be dismissed, at any time, by the board of school directors, on account of immorality, incompetency, intemperance, cruelty, negligence" etc. But before a teacher is dismissed under this section he must be given an opportunity to be heard, "after reasonable notice in *Page 527
writing of the charges made against him." Cf. the recent case of Snyder v. Washington Twp. Sch. District, 117 Pa. Super. 448,178 A. 312.
Opportunity to be heard must be afforded, but whether a hearing shall be conducted is optional with the teacher — hence the significance of the two above quoted references in Section 403 to dismissing teachers; the first relates to a dismissal for a cause not specified in Section 1208 or where a hearing has been waived, and the second refers specifically to a dismissal "after a hearing."
The original provision of the School Code with respect to contracts with teachers — Section 1205 — merely provided that they should be in writing and executed in duplicate on behalf of the board and by the teacher. Provisions, prescribing their form and providing that they should "continue in force year after year," unless terminated by the teacher or the board in a designated manner, did not appear in the code until 1929. Obviously, the termination of teachers' contracts of employment, in a prescribed manner, at the end of any school term was not within the contemplation of the legislature when Section 403 was drafted and enacted and could not have been one of the "subjects" to which the section was intended to apply.
Again, the contract was not one for an indefinite period of employment. Under its terms, plaintiff was employed for the definite period of nine months, "subject to be dismissed and [the] contract terminated at any time whatever, for any of the causes specified in the 1208th Section" of the code. (Italics supplied) In the absence of the further agreement for renewal of the contract "year after year," (unless notice to the contrary be given by one party or the other), the relationship of employer and employee would have ended at the close of the school term in the spring of 1931. Clearly, such a termination of the relationship could not properly *Page 528
be considered a dismissal. It is difficult to see how a termination, at the option of the board, under the provisions of the "year after year" clause differs in essence from a termination of that kind.
The cases cited upon this branch of the case in behalf of plaintiff are of no assistance. All of them arose out of contracts for the employment of teachers — a subject expressly covered by Section 403.
This plaintiff seeks to recover for services he did not render and which he admits he knew for many months were not desired and would not be accepted. Concededly, the sole ground upon which he claims to recover is the highly technical one that the secretary of the school board failed to record upon the minutes how each of the nine members present voted upon the resolution to terminate his contract at the close of the current school year. He had expressly agreed that it might be terminated at the end of any school term. In order to sustain such a recovery he must show clearly and conclusively that he was dismissed within the intendment of Section 403 of the School Code.
For the reasons stated, we are of opinion that the section upon which he relies does not apply to the facts in this case. The first, third and fourth assignments are sustained. If the record as printed contained a motion for judgment in favor of the defendant district notwithstanding the verdict we would enter it here. In its absence, we can only direct that the motion for a new trial be reinstated and granted.
Judgment reversed with a venire. *Page 529 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3514019/ | The appellant, Herbert Roney, and three others, were jointly indicted for an assault and battery with intent to kill and murder one Will Massey. A severance was *Page 535
granted, and upon a separate trial of the appellant he was convicted and sentenced to serve a term of four years in the state penitentiary; and from this conviction and sentence, this appeal was prosecuted.
Will Massey, the party alleged to have been assaulted, testified, in substance, that about ten o'clock at night, just after he had closed his place of business in Lyman, Mississippi, the appellant and one Mart West, who were armed with guns, accosted him and forced him into a car, saying to him, "We will show you about watching after us." That they drove to a point about four miles in the country, where they carried him into the woods, and after requiring him to take off his clothing, proceeded to whip him with large switches cut near by. He further testified that the appellant and the defendant Buck West kept him covered by guns, while the defendants Jesse Robertson and Mart West applied the lashes; that the whipping became so severe he broke loose and attempted to escape by running; that when he had run only a short distance, the appellant yelled to him to "Stop, I will kill you," and immediately thereafter shot him down with buckshots, the bullets taking effect in his leg; that Mart West then ran up and hit him in the face with a pine stick, and they then carried him back to the place where they had begun whipping him and proceeded with the whipping. He further testified that they then placed him in their car and informed him that they would be carrying him to a hospital, and that Mart West told him that he must say that he had been shot in his hen house, and, "If you don't say so, I have witnesses enough to prove you were there;" and that he finally persuaded them to carry him to his home instead of a hospital. As to the seizure of Will Massey by the appellant and his codefendants and his being returned to his home by them severely beaten and otherwise wounded, he was corroborated by his wife, Clementine Massey.
The defense offered was an alibi. The appellant and others testified that the appellant was at his home on the *Page 536
night of the alleged shooting until Mart West and Jesse Robertson came there with the wounded negro in the car; that they came there for the purpose of borrowing money to buy gas to carry the wounded man to a hospital; and that the appellant and Buck West there joined the other two defendants.
The appellant first assigns as error the action of the court below in sustaining objections to certain questions sought to be propounded by his counsel to the jurors on their voir dire examination, the contention being that in so doing the court denied the appellant a right conferred by section 2068, Code 1930, which provides that: "The parties or their attorneys in all jury trials shall have the right to question jurors who are being impaneled with reference to challenges for cause, and for peremptory challenges, and it shall not be necessary to propound the questions through the presiding judge, but they may be asked by the attorneys or by litigants not represented by attorneys."
In the cases of House v. State, 133 Miss. 675, 98 So. 156, and Jones v. State, 133 Miss. 684, 98 So. 150, 152, it was held that, while it was reversible error to deny the rights given by this statute, it was not intended thereby to deprive the court of "control over such examination to see that the privilege was not abused, and that unnecessary delays did not take place under the guise of propounding questions under the statute, the consistency and propriety of the questions being subject to the control of the judge as other examinations."
The record in the case at bar shows that objections were sustained to four questions therein set forth, but it does not show that the court denied the appellant or his counsel the right to examine the jurors as to their qualifications. It only remains then to determine whether there was reversible error in sustaining objections to the particular questions appearing in the record. To questions propounded by the court, the jurors had answered that they would give the defendant a fair and impartial *Page 537
trial, would take the instructions of the court as the law of the case, and would follow those instructions, and to the best of their ability bring in a verdict in accordance with the law and the evidence.
The first question propounded by counsel for the appellant was in the form of a statement by counsel of a principle of law to be applied by the jury in determining the guilt or innocence of the defendant. It is the sole province of the court to announce to the jury the law by which they shall be governed, but if it be conceded that it was error to sustain an objection to this question — which we do not decide — we do not think this error would require or warrant a reversal. The second question propounded by counsel involved an inquiry as to whether the jury would acquit the defendant if the evidence appeared in the mind of any one of them to be evenly divided. A reasonable doubt in the mind of one juror does not entitle a defendant to an acquittal; and no error can be predicated on the sustaining of an objection to the question in the form in which it appears in the record. The third and fourth questions each called for an answer from the jurors as to whether they would acquit the defendant in the event the state failed to prove every material allegation of the indictment. These questions did not set forth the material allegations of the indictment; and it has been held that it is improper for the court to give an instruction to the jury referring to the indictment for the material allegations thereof instead of setting them out therein. Cummins v. State, 144 Miss. 634,110 So. 206; Magee v. State, 145 Miss. 227, 110 So. 500. The same rule should apply to questions propounded to the juries on their voir dire examination, and no reversible error was committed in sustaining objections to these questions.
The court granted the state an instruction to the effect that the jury should convict the defendant if it believed from the evidence beyond a reasonable doubt that he willfully, unlawfully, and feloniously shot and wounded the *Page 538
said Will Massey with the willful, unlawful, felonious, and malicious intent to kill and murder him, and then also granted an instruction to the effect that, in order to find him guilty, it was not necessary that the jury believe that the defendant, Herbert Roney, actually fired the shot that wounded the said Will Massey, if they believed from the evidence beyond a reasonable doubt that the shooting was done feloniously and with malice aforethought by either of his codefendants and he willfully, unlawfully, feloniously, and of his malice aforethought aided, abetted, or assisted them in the shooting. The appellant assigns as error the granting of the latter instruction on the ground that there was no evidence that any of the defendants other than the appellant actually shot the said Massey, and therefore no evidence upon which to base the instruction. It is true that the testimony of the prosecuting witness was that the appellant alone fired the shot which wounded him, and that there is no evidence that either of the other defendants fired a shot, and, consequently, this instruction should not have been given; but in view of the positive and direct evidence that the appellant himself fired the shot, we do not think the instruction complained of could have prejudiced him in any way.
On the cross-examination of the appellant, in response to interrogatories, he admitted that he had previously been convicted of grand larceny. He was then asked if he had served a term in the penitentiary for that crime, and he answered that he had. Thereupon the appellant's counsel interposed an objection and a request for a mistrial, which were overruled. No motion was made to exclude the appellant's answer to this question. He now assigns as error the action of the court in overruling the objection interposed to the question and answer.
Under section 1532, Code 1930, which provides that any witness may be examined touching his conviction of any crime, it has been frequently held that it is not permissible to show the details of any crime for which one *Page 539
has been committed, and that the inquiry should be limited to showing the fact of such conviction; and it is likewise improper to inquire into the character and amount of punishment imposed and suffered. However, since the appellant admitted that he had been convicted of grand larceny, it is hardly probable that competent and intelligent jurors did not know that the crime for which he had been convicted was punishable by imprisonment in the penitentiary, and we do not think that the fact that the jurors were informed in this case that the appellant had served a term in the penitentiary would justify or warrant a reversal; and particularly is this true in view of the fact that the question was answered by the appellant before an objection thereto was interposed, and there was no motion to exclude the answer. Upon the whole record, we do not think there is any reversible error, and, therefore, the judgment of the court will be affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2997738/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 2, 2005
Decided May 16, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-2164
NOEL U. UDARBE, Petition for Review of
Petitioner, an Order of the Board of
Immigration Appeals
v.
No. A38-052-399
ALBERTO R. GONZALES,
Respondent.
ORDER
Noel Udarbe, a native and citizen of the Philippines, has been a lawful permanent resident
of the United States since his arrival in 1982. In 2001, Udarbe pled guilty and was convicted of
battery in Indiana and sentenced to one year in jail. Finding that to be a conviction for an
aggravated felony, the INS charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii). In the
course of the removal proceedings, Udarbe admitted that he had been convicted but claimed that
his conviction should not qualify as an aggravated felony. He argued that removing him under
that provision violated his Fifth Amendment rights because if he had been convicted of the same
crime in Illinois, the maximum sentence would have been 364 days, meaning that he would not
have been convicted of a felony.
The immigration judge found Udarbe removable. Udarbe appealed, again admitting his
conviction and sentence but repeating his equal protection argument. The Board of Immigration
Appeals dismissed Udarbe’s appeal, stating that it did not “have the authority to rule on the
No. 04-2164 2
constitutionality of the Act . . . .” Udarbe filed a motion to reconsider, which the Board also
denied. Udarbe appeals that decision, arguing again that his constitutional rights were violated
and that the Board erred in determining that it did not have the authority to rule on his
constitutional claims.
Unfortunately for Udarbe, we don’t have the authority to examine the merits of his
constitutional argument, either. On July 19, 2004, we issued an order explaining that, because
Udarbe did not file a timely petition for review of the Board’s initial decision, this appeal is limited
to review of the Board’s April 6, 2004, denial of Udarbe’s motion to reconsider. In that order,
the Board stated simply that Udarbe “failed to show any particular errors of fact or law in our
prior decision,” noting that Udarbe instead simply repeated constitutional arguments the Board
had previously considered.
In this appeal, Udarbe does not dispute the Board’s contention that he failed to present
any new facts or evidence in his motion for reconsideration. Therefore, we find no error in the
Board’s order denying Udarbe’s motion for reconsideration. And, as we explained in our July 19
order, our review is limited to that decision, so we do not have jurisdiction to consider Udarbe’s
claim that the Board erred in its initial decision not to consider Udarbe’s constitutional arguments.
The petition to review the denial of the petition for reconsideration is therefore DENIED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2997765/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
In the
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 22, 2005
Decided May 9, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 03-3078
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 00 CR 411
ELIZABETH R. ROACH,
Defendant-Appellant. Matthew F. Kennelly,
Judge.
ORDER
This case comes to us on remand from the Supreme Court for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). Each party has filed a statement of position pursuant
to Circuit Rule 54.
At Roach’s original sentencing hearing, the district court granted her motion for downward
departure based on diminished capacity pursuant to U.S.S.G. § 5K2.13. Absent the downward
No. 03-3078 Page 2
departure, Roach would have been required to serve a minimum of 12 months in prison. Instead, the
district court sentenced Roach to five years of probation, six weeks of work release at the Salvation Army
Center, six weeks of home confinement with weekend electronic monitoring, and prohibited her from
obtaining credit cards without the court's prior permission. In vacating this sentence, we held that the
district court abused its discretion in granting the downward departure, stated that the sentencing guidelines
significantly limited the district court’s ability to fashion a sentence based on considerations such as Roach’s
undisputed diminished mental capacity, and remanded the case for resentencing. See United States v.
Roach, 296 F.3d 565, 573 (7th Cir. 2002).
On remand, the district court specifically stated on the record that it felt that the low end of the
sentencing range was in far excess of what was warranted in this case, but resentenced according to the
guidelines setting aside its own personal opinion. After Booker and United States v. Paladino, 401 F.3d
471 (7th Cir. 2005), we now understand that the district court should have been free to fashion the very
sentence it intended to impose originally.
In Paladino, we determined that sentencing errors under Booker were indeed errors that were
both plain and constituted a miscarriage of justice. 401 F.3d at 481-83. In contrast to Paladino,
however, after review of the record and the Rule 54 statements, we can be certain that the sentencing judge
in this case would have imposed a lighter sentence than dictated by the guidelines had he not thought himself
bound by the guidelines. As a result, we find that Roach was prejudiced by the illegal sentenced imposed
by the district court, and, therefore, has survived plain-error review outright making the limited remand
prescribed in Paladino unnecessary.
Accordingly, Roach’s sentence is VACATED and the case is REMANDED for resentencing in
accordance with Booker. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2997777/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3113
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUBEN ARROYO,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 CR 559—Wayne R. Andersen, Judge.
____________
ARGUED FEBRUARY 24, 2005—DECIDED MAY 5, 2005
____________
Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges.
FLAUM, Chief Judge. A jury convicted defendant-appellant
Ruben Arroyo of possession with intent to distribute heroin
and conspiracy to possess with intent to distribute heroin in
violation of 21 U.S.C. §§ 841 and 846. At the sentencing
hearing, the government presented evidence that defendant
also distributed large quantities of cocaine. Applying the
federal sentencing guidelines to both the heroin and cocaine
transactions, the district court sentenced Arroyo to 360
months of imprisonment and five years of supervised
release. Arroyo now appeals his conviction and sentence.
2 No. 03-3113
For the reasons that follow, we affirm the conviction and
order a limited remand pursuant to our decision in
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
I. Background
Federal law enforcement agents began investigating
Arroyo with the aid of a confidential informant (“CI”) in
June 1999. Over a period of about six weeks, officers moni-
tored, recorded, and performed surveillance of 21 meetings
and telephone conversations between the CI and Arroyo.
During one of those conversations, on July 11, 1999,
Arroyo arranged for his associate Efrain Gamboa-Cazarez
(“Gamboa”) to deliver a sample of heroin to the CI. Unbe-
knownst to defendant, the CI immediately turned over this
sample to law enforcement. A few weeks later, defendant
promised to sell the CI two kilograms of heroin. On July 30,
1999, Arroyo supplied Gamboa with a car equipped with a
concealed compartment and sent Gamboa to his drug source,
Regalo, to pick up the heroin. Regalo provided only one
kilogram, which defendant directed Gamboa to deliver to
the CI in a McDonald’s parking lot at the intersection of
Cermak Road and Harlem Avenue in Chicago, Illinois.
Neither Arroyo nor Gamboa were aware that law enforce-
ment officers were present at the McDonald’s and were pre-
pared to arrest the participants once the transaction was
complete. As planned, Gamboa arrived at the parking lot,
gave the CI the package from Regalo, and told him he would
receive the second kilogram after Gamboa took the money
to the supplier. Gamboa handed the CI a vinyl package re-
sembling a shaving kit. The CI opened the package and
briefly removed a bag containing two smaller plastic bags
each holding a white substance. At that point, law enforce-
ment agents emerged and arrested the CI and Gamboa. FBI
Special Agent Randall McIntosh seized the package.
No. 03-3113 3
Agent McIntosh and Task Force Officer James Washington
briefly inspected the package in the parking lot. McIntosh
later prepared an arrest report in which he described the
contents of the package as “chalky white.” After leaving the
scene, Washington and FBI Special Agent Holly Meador
drove the package to the FBI office downtown where they
secured it in an evidence locker. The following Monday,
August 2, 1999, Washington and another officer recorded
the package in the evidence log. Washington completed a
report in which he referred to the substance as a “brown”
powder “suspected to be brown heroin.” The same day, the
package was submitted to a Drug Enforcement
Administration (“DEA”) laboratory for analysis, where
testing confirmed that the package contained 998.1 grams
of heroin of varying purity.1
On August 6, 1999, after several telephone calls to the
DEA, Arroyo turned himself in at the United States Attor-
ney’s Office. Represented by counsel, Arroyo agreed to
cooperate with the government, and agents held him at a
hotel where he provided information to the government.
Arroyo admitted to law enforcement agents that he had
previously sold cocaine to the CI and that he had arranged
the July 30 heroin deal with Efrain Gamboa, Sr., his drug
source.
Sometime between 5:00 P.M. on August 10 and 11:15 A.M.
on August 11, Arroyo escaped from the custody of federal
agents. The FBI arrested him in Yuma, Arizona on
August 19, and he was returned to custody in Chicago.
On August 27, 1999, Arroyo and Gamboa were charged in
a two-count indictment with conspiring to possess with
intent to distribute, and possessing with intent to distrib-
ute, approximately one kilogram of heroin. Gamboa pled
1
Agent Washington’s report noted a total drug weight of 1,107.3
grams.
4 No. 03-3113
guilty but did not agree to assist the government or to coop-
erate against Arroyo, who proceeded to trial in February
2003.
Over the course of the five-day trial, the government called
13 witnesses who testified about the investigation, the
recorded conversations between defendant and the CI, the
chain of custody of the drug evidence, defendant’s phone
calls to the DEA, defendant’s post-arrest statement, and his
flight. The CI did not testify. Several officers confirmed that
they had initialed the arrest report describing the suspected
heroin as “white” even though it was later described as
“brown.”
Arroyo’s theory at trial was that he had attempted to “rip
off” the CI by providing him with a look-alike substance that
was not in fact heroin. He claimed that the white substance
that he sent to the July 30 sale was not the same brownish
substance that the government ultimately introduced at
trial. Defendant offered the testimony of his co-defendant
Gamboa that the package seized on July 30 contained a
white substance. He also presented the testimony of Albert
Charnotta, his sister’s former boyfriend, who used to live
with Arroyo. Charnotta testified that on July 30, 1999, he
saw defendant sitting at the kitchen table placing into plastic
bags a white powdery substance that he believed was either
baking soda or vitamin B-12.
The jury convicted defendant on both counts and returned
a special verdict form finding that defendant had conspired
to distribute, or possess with intent to distribute, one kilo-
gram or more of heroin, and that he had actually possessed
with intent to distribute between 100 grams and one kilo-
gram of heroin.
The district court conducted a sentencing hearing on July
29 and 31, 2003. The government presented the testimony
of one witness, Ricardo Garcia, a convicted drug trafficker
who testified pursuant to a written plea agreement with the
No. 03-3113 5
government. Garcia had admitted to possessing 150 to 200
kilograms of cocaine and was sentenced to 58 months of
imprisonment. Garcia testified that he had delivered large
quantities of cocaine on behalf of Arroyo in 1998 and 1999.
According to Garcia, Arroyo would supply him with the
drugs inside a van, and Garcia would deliver that van to a
customer named Jones and assist Jones in delivering the
drugs to his customers. Jones would then pay Garcia, and
Garcia would deliver the money to Arroyo at his apartment.
Garcia testified that he delivered cocaine on behalf of Arroyo
five or six times and that he had delivered marijuana once.
The district court credited Garcia’s testimony and sentenced
Arroyo based on a total drug quantity of one kilogram of
heroin and 50 kilograms of cocaine (one delivery of 30
kilograms, and four additional deliveries of five kilograms
each).2 This drug quantity resulted in a base offense level of
36. Based on a two-level enhancement for obstruction of
justice and a criminal history category of V, the guidelines
yielded a sentencing range of 360 months to life. The court
sentenced defendant to 360 months.
II. Discussion
Arroyo raises several issues with respect to both his con-
viction and sentence. First, he argues that the district court
2
The district court emphasized that it believed it was giving
defendant “the benefit of every doubt” in calculating the drug
quantity, acknowledging that Arroyo was likely responsible for an
even higher quantity. (Sent. Tr. at 103.) The court stated:
I have no doubt sitting here that there was a lot of other drug
transactions that Arroyo was involved with that have not
been made subject to this . . . [b]ut I have no particular desire
to force the Government or myself or the Probation Office to
try to get hard evidence to get it above the level 36, which is
a pretty steep level given the real terms of his life anyhow.
(Id. at 104.)
6 No. 03-3113
abused its discretion in refusing to send the drug evidence
into the jury room during deliberations. Arroyo also con-
tends that the district court abused its discretion in exclud-
ing from evidence an IRS memorandum that he asserts
would have corroborated his defense. With respect to his
sentence, defendant claims that the district court applied
the guidelines incorrectly by including the cocaine in its
calculation of drug quantity without explicitly tying this
evidence to his offense of conviction. Finally, defendant
argues that his sentence violates the Sixth Amendment as
interpreted by the Supreme Court in United States v. Booker,
125 S. Ct. 738 (2005) and seeks a remand pursuant to
Paladino. We address each of Arroyo’s arguments in turn.
A. Drug Evidence
During the trial, a court security officer showed the jury
the drug evidence by holding the exhibit in his hand as he
walked in front of the jury. On the third day of the trial, the
heroin was placed in front of the jury on the government’s
evidence table, and it remained there for the rest of the
trial. At the end of the trial, the judge informed the jury
that the drugs would not be sent back into the jury room,
but that he would work out a process if the jury wanted to
see the heroin.
During deliberations, the jury sent out a note requesting
to “see the sample heroin and heroin.” The trial judge
conferred with the parties and considered various options
for allowing the jury to examine the drug evidence without
compromising the safety of the jury or the exhibit. Over
defendant’s objection, the judge decided to allow the jury to
return to the courtroom to view the evidence in the presence
of the judge, counsel, and FBI agents.
Defendant contends that the court violated his right to due
process by limiting the jury’s access to the drug evidence to
a “single, inhibited viewing that denied the jury a meaning-
No. 03-3113 7
ful opportunity to evaluate and discuss the exhibit’s rele-
vant qualities.” He asserts that the jury’s determination of
the authenticity of the evidence—a crucial issue in the
case—required the jurors to be able to examine the evidence
closely and discuss with each other subtle details such as
color and shading.
We afford the district court considerable discretion in the
handling of exhibits during the course of a trial as well as
during jury deliberations. United States v. Burrell, 963 F.2d
976, 982 (7th Cir. 1992). We review the district court’s
handling of the exhibits for a clear abuse of discretion. Id.
Defendant’s argument that the district court abused its
discretion is based on an unfair characterization of the rec-
ord. Far from the single, inhibited viewing that defendant
describes, the jurors were able to see the heroin during a
significant portion of the trial, and upon their request, were
permitted to return to the courtroom to observe the evidence
again during deliberations. The district judge struck a
reasonable balance between allowing the jurors to examine
the evidence and protecting them from allegations of misuse
or tampering. The jury had ample opportunity to observe and
evaluate the evidence critically in light of defendant’s
argument that the heroin presented at trial was not the
look-alike substance he arranged to have delivered on July
30, 1999. We conclude that the district court did not abuse
its discretion in handling the jury’s viewing of the evidence
in this manner.
B. IRS Memorandum
Defendant also argues that the district court abused its
discretion in excluding from evidence a July 13, 1999 memo-
randum prepared by IRS Agent Alfonso Herrera regarding
an interview with the CI. The memo reported that the CI
had told Herrera that Arroyo was believed to have “ripped”
two kilograms of cocaine during a drug sale. The district
8 No. 03-3113
judge concluded that the CI’s statement was hearsay and
could not be offered for its truth, but indicated that he
would consider allowing it in for some other purpose.
Defendant then sought the admission of the memo in order
to establish the state of mind of the investigating officers.
During a voir dire of IRS Agent Christopher Carlson outside
the presence of the jury, defense counsel read aloud the
portion of the memo in which Herrera reported:
On July 13, 1999, [the CI] . . . informed that the word
on the street is that there is a contract out on Ruben
Arroyo’s head. There is a $100,000 reward for anyone
that kills Ruben Arroyo. Allegedly Arroyo ripped two
kilograms of cocaine from . . . a[n] unknown individual
during a drug deal.
(Tr. at 111-12.)
Carlson testified that he was aware of the information in
the memo but that it did not affect the way in which he
conducted the investigation. The testimony of several other
officers also revealed that they were either unaware of the
contents of the memo or that it did not influence their
investigation. The district court therefore found the memo
irrelevant and excluded it.
Defendant argues that the district court abused its dis-
cretion in concluding that the officers’ state of mind was
irrelevant. He contends that, because some of the officers
were aware of the possibility that the heroin he and Gamboa
attempted to sell was fake, they should have conducted a
field test on the scene to determine the true identity of the
substance. Arroyo also contends for the first time on appeal
that the memo was admissible pursuant to Federal Rule of
Evidence 801(d)(2) as a statement by a party-opponent
and as character evidence under Rule 803(21). Finally,
defendant asserts that “not admitting the IRS Memo denied
[him] a critical piece of background information and allowed
the jury to reach its verdict based on a partial and incom-
plete version of the facts.”
No. 03-3113 9
We review the trial court’s evidentiary rulings for an abuse
of discretion. United States v. Gant, 396 F.3d 906, 908 (7th
Cir. 2005). The district court did not abuse its discretion in
excluding the memo. Arroyo offered only two potential bases
for admission at trial: (i) to prove the truth of the matter
asserted—that he had in fact “ripped” two kilograms of co-
caine from someone in another drug deal; and (ii) to show
that the information contained in the memo affected the way
the officers conducted the investigation. Because defendant
offered the statements in the memo for their truth, the trial
court was correct in concluding that the memo contained
hearsay. Moreover, defendant has not explained how the
officers’ state of mind was relevant. Arroyo was permitted
to elicit testimony that the officers did not conduct a field
test on the heroin; he has not shown why admission of the
CI’s out-of-court statements regarding defendant “ripping”
the cocaine was necessary to further explain the officers’
actions.
Defendant raises the arguments that the memo should
have been admitted as an admission by a party-opponent
and as character evidence for the first time on appeal. Ac-
cordingly, defendant has forfeited these arguments, and we
review the trial court’s decision for plain error. See Johnson
v. United States, 520 U.S. 461, 466-67 (1997). Before we can
correct any forfeited error, we must find: (1) error; (2) that
is plain; (3) affects substantial rights; and (4) seriously
affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
Both of defendant’s newly-presented arguments fail. This
Court has held that government agents are not party-oppo-
nents for purposes of Rule 801(d)(2). See United States v.
Prevatte, 16 F.3d 767, 779 n.9 (7th Cir. 1994) (quoting
United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir.
1979)) (“Because the agents of the Government are suppos-
edly disinterested in the outcome of a trial and are tradi-
tionally unable to bind the sovereign, their statements seem
10 No. 03-3113
less the product of the adversary process and hence less
appropriately described as admissions of a party.”). Nor did
the memo fall within the reputation exception to the
hearsay rule. The statements defendant sought to admit
were not related to his character, but rather to a rumor
about a specific prior act and others’ intentions to harm him.
This information does not establish the “[r]eputation of
[defendant’s] character among associates or in the commu-
nity.” Fed. R. Evid. 803(21).
C. Application of the Guidelines
Based on the counts of conviction alone, the sentencing
guidelines would have yielded a range of 188-235 months.3
The district court’s enhancement of defendant’s sentence
based on relevant conduct and obstruction of justice in-
creased Arroyo’s sentence significantly. We now know that
this sentence violated Arroyo’s Sixth Amendment rights
because the judge enhanced his sentence on the basis of
facts not determined by the jury and applied the guidelines
as mandatory. Paladino, 401 F.3d at 479 (citing Booker, 125
S. Ct. 738).
We put the Booker issues to one side for a moment in
order to address Arroyo’s argument that the district court
erred in its application of the guideline governing relevant
conduct. Defendant contends that the district court failed to
explicitly connect the cocaine evidence with the offense of
conviction—conspiracy and possession with intent to dis-
tribute heroin. He argues that the court should not have
considered this evidence in imposing his sentence.
Because defendant forfeited this issue by failing to raise
it below, we review for plain error. The guidelines instruct
3
A quantity of one kilogram or more of heroin results in a base
offense level of 32. See U.S.S.G. § 2D1.1.
No. 03-3113 11
district courts to calculate sentences based on types and
quantities of drugs not specified in the counts of conviction
but that were “part of the same course of conduct or com-
mon scheme or plan” as the convicted offenses. United States
v. Bacallao, 149 F.3d 717, 719 (7th Cir. 1998) (quoting
U.S.S.G. § 1B1.3(a)(2)). This “relevant conduct” or “aggrega-
tion” rule permits sentencing courts to consider quantities
of drugs not specified in the counts of conviction provided
that “the unconvicted activities bore the necessary relation
to the convicted offense.” Id. (quoting United States v.
Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991)). “Two or more
offenses are part of a common scheme or plan if they are
connected by at least one common factor, such as ‘common
victims, common accomplices, common purpose, or similar
modus operandi.’ ” Id. (quoting U.S.S.G. § 1B1.3(a)(2), cmt.
n.9)). However, “section 1B1.3(a)(2) must not be read to
encompass any offense that is similar in kind to the offense
of conviction but that does not bear the required relation-
ship to that offense.” Id. at 719-20. In assessing whether
there is a strong relationship between the uncharged con-
duct and the convicted offense, courts should consider whether
the government has demonstrated a significant similarity,
regularity, and temporal proximity. Id. at 719.
When a district court aggregates drug quantities arising
from uncharged or unconvicted relevant conduct for pur-
poses of calculating a defendant’s base offense level, we have
required the court to “explicitly state and support, either at
the sentencing hearing or (preferably) in a written statement
of reasons, its finding that the unconvicted activities bore
the necessary relation to the convicted offense.” Id. at 720
(quoting Duarte, 950 F.2d at 1263). However, where it is
clear that the district court took into consideration and
adopted the facts contained in the presentence report, as
well as the government’s reasoning concerning those facts,
we have upheld the court’s decision to handle the uncharged
12 No. 03-3113
conduct as relevant conduct, despite the lack of express find-
ings. Id. (citing United States v. Acosta, 85 F.3d 275, 280
(7th Cir. 1996)).
In Bacallao, the district court sentenced defendant based
on a drug quantity of 3.3 kilograms of cocaine without mak-
ing any explicit findings as to how this quantity of cocaine,
other than a portion found on or near the defendant’s car,
constituted relevant conduct. Id. at 719. Because the district
court did not make any independent findings but instead
relied entirely on the information contained in the presen-
tence report (“PSR”), we determined that the PSR itself
must explain how the additional quantities were part of the
same course of conduct or common scheme or plan as the
offense of conviction. Id. at 721. Finding nothing in the rec-
ord or the PSR establishing relevant dates, common victims,
common accomplices, or details concerning the manner in
which the additional cocaine was acquired and distributed,
we vacated the sentence and remanded for resentencing,
noting that the government would have the opportunity to
prove on remand that the additional cocaine transactions
were relevant conduct for sentencing purposes. Id. at 721-
22.
In United States v. Johnson, 324 F.3d 875 (2003), we up-
held the district court’s determination that sufficient differ-
ences existed between defendant’s state-law drug conviction
and his federal charge of distributing crack cocaine to
preclude the state offense conduct from being considered
relevant to the federal offense. Id. at 879. In that case, the
district court found that the two criminal enterprises lacked
temporal proximity because more than one year elapsed be-
tween the offenses. Id. Furthermore, the offenses differed in
that the state law offense involved a conspiracy to distribute
large quantities of powder cocaine while the federal offense
charged defendant with acting alone to make an individual
sale of crack cocaine. Id. at 879-80; see also United States v.
Sumner, 265 F.3d 532, 540-41 (7th Cir. 2001) (where the
No. 03-3113 13
drugs charged in the offense of conviction amounted to less
than 0.2% of the quantity for which defendant was held ac-
countable, defendant established prejudice under the plain
error standard because the district court did not make ade-
quate findings on the record tying the uncharged conduct to
the offense of conviction).
In this case, as in Bacallao and Sumner, the district court
made no explicit findings linking the cocaine evidence to the
offense of conviction. The PSR also provides no support for
such a contention. It merely refers to the cocaine transac-
tions as “relevant conduct” but does not explain the basis
for this designation. At sentencing, neither defendant nor
the government addressed the question whether the cocaine
transactions bore the “required relationship” to the heroin
offense, and it appears that both parties, as well as the
district court, took this conclusion for granted.
The district court erred in assuming without making a
specific finding that defendant’s cocaine activity bore the
necessary relationship to his heroin conviction. Defendant
has not demonstrated, however, that this deficiency rises to
the level of plain error.
In Sumner, we found that the defendant made an ade-
quate showing of prejudice under the plain error standard
where:
there was a significant temporal gap between the un-
charged conduct and the offense of conviction, there was
evidence that [defendant] voluntarily ceased the un-
charged activity, the uncharged conduct involved a
different drug than the offense of conviction, and there
was no showing of a common geographical location,
common customers, common supplier, common victims,
accomplices or modus operandi.
265 F.3d at 540-41. The government in Sumner argued that
the purported relevant conduct and the offense of conviction
were temporally proximate but provided no support for this
14 No. 03-3113
assertion. Id. at 541. Because we also found little or no
support in the record demonstrating the similarity of the
acts and because the difference in Sumner’s sentence was
significant (raising his sentencing range from 8-14 months
to 121-151 months), we concluded that Sumner had ade-
quately demonstrated prejudice. Id.
In this case, by contrast, although the district court did
not make explicit findings tying defendant’s cocaine distri-
bution to his heroin offense, the record could support the
conclusion that the two offenses were part of the same course
of conduct. The offenses involved some of the same partici-
pants, and defendant used similar means to transport the
heroin and cocaine to their respective customers. Therefore,
defendant has not shown that this error affected his sub-
stantial rights.
D. Booker/Paladino Remand
Because defendant failed to raise a Booker-type issue
below, we review for plain error. Paladino, 401 F.3d at 481.
As discussed above, the district court plainly erred in en-
hancing defendant’s sentence based on facts not found by a
jury beyond a reasonable doubt and applying the guidelines
as mandatory. In order to determine whether the third and
fourth prongs of the plain error test have been met, we
retain jurisdiction and direct a limited remand to permit the
sentencing judge to determine whether he would have
imposed a different sentence had he known the guidelines
were advisory. See id. at 483-84. If the sentencing judge
indicates that Arroyo would have received the same sen-
tence, we will conclude that he was not prejudiced by the
error, and defendant’s plain error challenge must fail. We
will then affirm the original sentence, provided it is rea-
sonable. Id. at 484. If, on the other hand, the judge decides
that a different sentence would have been appropriate, we
will vacate the original sentence and remand for resentenc-
No. 03-3113 15
ing. Id. In either case, the district court should place on the
record an appropriate explanation for its determination. Id.
III. Conclusion
For the foregoing reasons, the conviction is AFFIRMED. We
retain jurisdiction and REMAND to the district court pursu-
ant to the procedure set forth in Paladino.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-5-05 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3516901/ | Appellees, Geo. R. Howard and H.G. Hawkins, were partners. Under the firm name and style, Howard Radio Shop, they conducted a radio business, and in the same building they carried on an automobile business under the firm name and style, Forest Motor Company. Except for the fact that the two businesses were owned and operated by the same two persons as partners and in the same building, they were kept as much apart or separate as if each were owned by strangers to the other.
One Forbes was an employe of the Howard Radio Shop, with no stated duties to perform for the Forest Motor Company. On Saturday, March 6, 1937, Howard, who was the partner in the active management of both businesses, furnished Forbes with a key to the building and instructed him to open it on the following Monday morning. On Sunday afternoon, March 7, 1937, Forbes entered the building and stole therefrom an automobile belonging to Forest Motor Company.
This automobile was insured by appellant Company for the benefit of Forest Motor Company against theft, but the policy of insurance expressly excepted from its coverage theft "by any person or persons . . . in the assured's service or employment, whether the theft, robbery or pilferage occur during the hours of such service or not." This exception is common to policies of this particular kind and for at least four obvious reasons is proper to be contained therein.
The question for decision is whether Forbes who, as stated, was an employe of Howard Radio Shop was also, in law, an employe of Forest Motor Company. It is the rule of the common law that a partnership has no legal existence distinct from the persons who compose it. There is nothing of a sufficiently substantial nature to which its existence as a separate legal entity may be safely ascribed apart from the members of the partnership. To call one branch of a partnership business by one name *Page 551
and another branch by another name cannot alter the actual legal situation. A partnership with identical partners under one partnership name is the same partnership when conducting some other portion of its business under another name, — whatever the name, there is still the same partnership. And a separation of bookkeeping, and of all operations in the details thereof, does not alter the situation, for the ownership and ultimate control are still in the partners who compose the firm.
Forbes was an employe of the partnership, composed of the stated partners, and the automobile belonged to the same partners as partners, — to the same partnership. It follows that the automobile was stolen by an employe of the assured, and that the theft was not covered by the policy.
Reversed, and judgment here for appellant. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3516904/ | ON SUGGESTION OF ERROR.
Movants again urge upon us that the proof of publication of the notice to the voters is invalid in that the affidavit of the publisher of the newspaper did not contain any averment that the said newspaper had "been established for at least twelve months next prior to the first publication of the notice to be published." Section 1. Movants say that, since this is a requirement of chapter 313, Laws 1936, any proof of publication which *Page 635
omits the quoted averment is, in the eyes of the law, no proof at all under the rule that the statutory requirements in respect to publication of legal notices and the proof thereof must be strictly followed.
In addition to what we have said in our original opinion on this subject, we would again point out that the said chapter 313, Laws 1936, contains the following as a proviso: "Provided, further, that in the event of the discontinuance of the publication of the only newspaper in any county qualified to publish legal notices, any other newspaper published in the county regardless of the length of time it has been published, shall be deemed qualified to publish legal notices."
There is thus presented a situation similar in material respects to that considered in Donald v. Bradt, 15 Colo. App. 414, 419, 62 P. 580, 582, wherein the court said: "A portion of section 1 the act . . . provided that [it] should not apply to the counties in which no newspaper had been published for the required length of time. This may have been the case with reference to the newspaper in which this publication was made, and, if so, the act did not apply to it, and the publisher was not required to make any certificate as to the length of time his paper had been published. Obviously the burden was upon the defendant, as he was attacking the judgment, to have made some allegation in his affidavits and proofs to show that the newspaper in question was one which did come within the terms of the act. This he wholly failed to do." This case is the only decision which we have found in precise point, other than our original opinion here, and, without adopting the course of reasoning in the Colorado opinion, we point to it as being in accord with the result reached by us, to wit, that the failure in the proof of publication to recite that the newspaper is one qualified under chapter 313, Laws 1936, does not invalidate it.
Suggestion of error overruled. *Page 636 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3516911/ | This is an appeal from a judgment for damages recovered by the appellee for a personal injury alleged to have been sustained by him because of the negligence of the appellant.
One of the assignments of error is that the court below refused to direct the jury to return a verdict for the appellant.
The appellant is engaged in the business of sawing and manufacturing lumber, and the appellee was employed by it to assist in the operation of its machinery for sawing logs into lumber. The saw was situated on the second floor of the appellant's plant, and the logs were carried to that floor by a machine conveyor, from which they were transferred to another conveyor which took them to a carriage by which they were conveyed to and brought into contact with the saw. The power was communicated to these conveyors by a pulley revolved by an endless belt running over a wheel attached to the pulley. This pulley was situated on the ground floor. One of the appellee's duties was to scale the logs when they arrived at the second floor, transfer them to the conveyor which carried them to the saw carrier, which conveyor he operated by means of levers. On the occasion in question the belt around the pulley wheel began to slip, whereupon the appellee went to the ground floor, and while *Page 165
putting resin or tar on the belt to prevent it from slipping his arm was pulled between the belt and pulley, and he was badly injured.
The appellee's complaint is that the appellant negligently failed to furnish him with a safe place wherein to do his work. The belt was several feet above the ground and could not be reached therefrom. In his declaration the appellee says "that at a former time the said defendant mill company had provided a ladder for the plaintiff or anyone else applying the resin to the belt to climb up so as to reach the belt, but this ladder has been permitted to be taken away and not be replaced, so that it became necessary for the plaintiff to climb upon the frame work and apply the resin without a ladder, that this arrangement without the ladder made it extremely dangerous for the plaintiff or anyone else to apply the resin as it was necessary, and as it was the duty of the plaintiff to do, under the circumstances as above alleged." The framework referred to therein was a trough partially inclosing the log conveyor, which was about four feet from the ground, and by standing on which one would be enabled to reach the belt and apply resin thereto. The ladder referred to was used generally about the plant, and when it was convenient of access the appellee used it to stand on while applying the resin, but when it was not accessible he had been accustomed to apply the resin by climbing up to and standing on the conveyor trough.
On the occasion here in question the appellee made no attempt to ascertain whether the ladder was accessible, but used the trough as a place on which to stand. While standing on the trough, the appellee "caught hold of a place" with his left hand in order to balance himself, and held a lump of resin against the belt about one foot from the pulley wheel, the friction thereby resulting causing the resin to melt and be taken up by the belt. What caused his arm to be drawn under the pulley wheel is not very clear from the evidence. The appellee said *Page 166
that the two ends of the belt were laced together, "and it (referring, it seems, to the lump of resin) must have hit the lacing and when the belt flew up like that that lacing there slapped my arm into that."
"Q. Between the belt and pulley? A. Yes, sir."
In another place, when asked what caused his arm to be drawn into the pulley, he answered, "Slack in the belt."
The appellee had been in the service of the appellant for several months. According to his evidence, when he was employed, the appellant's foreman told him to report to a man by the name of Williams, who was then discharging the duties which the appellee was employed to discharge, and that Williams would instruct him as to his duties; that Williams told him, among other things, "if the belt started to slip, put resin on it." It does not appear that Williams gave him any directions as to how the resin should be applied. Williams was dead at the time of the trial. The appellant's foreman testified that he did not direct the appellee to report to Williams for instructions, but that on the contrary he himself told the appellee what his duties would be and how to perform them. He also said that applying resin to the belt was not a proper way of preventing it from slipping, and that when the belt slipped it was the appellee's duty to report it, and the slipping would be remedied by another of the appellant's employees. This evidence, of course, cannot here be taken into consideration.
The belt slipped about twice a week, and each time the appellee applied resin to it. According to the appellee, the appellant's foreman had seen him do this several times, but how the resin was then being applied does not appear. Two things would cause the belt to slip: (a) Becoming slack; and (b) the load on the conveyor being too heavy. It does not appear from the evidence that it was more dangerous for one to apply resin to the belt while standing on the conveyor than it would have been by standing on a ladder. In fact, counsel for *Page 167
the appellee say that "he (the appellee) would have been in an equally dangerous position on the ladder as he would have been and was at the time of the injury." Neither does it appear from the evidence that the conveyor trough was an unsafe place on which to stand. No lump of resin was set apart to the appellee for application to the belt. He says that one could usually be found near the saw, but when not there he would, as he did on the occasion in question, obtain one from another portion of the plant.
A witness for the appellee, who had prior to the appellee's entering the appellant's employment discharged the duties which the appellee was discharging, testified that he had applied powdered resin to the belt when it slipped by raising a loose plank in the floor immediately above the belt and sprinkling the resin thereon with a board. Another witness for the appellee said that the usual way to put resin on the belt was: "You put it on from behind and put it on some sort of board while the belt is running and let the belt pull it off the board like that. If it is loose resin well just pour it on like that, just according to who is putting it on.
"Q. Some put it on one way and some another? A. Yes sir.
"Q. On this belt, which is the safest place to put it on, if you want to put it on with the hand? A. Safest way to put it on is to get back around behind and hold this resin on the belt and jerk the hand away from it if the resin sticks.
"Q. What causes the resin to stick? A. The resin gets warm and sticks and pulls your hand around. . . .
"Q. What effect on a man holding that resin on the belt when that lacing comes by? A. It would jerk his hand like that.
"Q. If he was putting the resin on with his hand when the lacing came by what would it do? A. Jerk his hand around like that and knock his hand around that way. . . . *Page 168
"Q. If he is putting that resin on in the middle of the belt it would knock his arm, would it not? A. Knock it just as far as it would go.
"Q. Where does it knock it? A. It will go between the pulley and the belt; go under the pulley. . . .
"Q. Suppose you put your hand just one foot from the pulley with a lump of resin in your hand, that would be an exceedingly dangerous process, would it not? A. Yes sir.
"Q. It would almost be suicide? A. If a fellow didn't know his business, it would get him. . . .
"Q. If you put powdered resin on there, there is no necessity to put your hand up there at all, just throw it on there? A. Yes sir."
The appellee said that it was necessary for him to hold his hand about a foot from the wheel when applying resin to the belt. The evidence does not disclose any defect in or any negligence of the appellant in reference to the lacing of the belt.
From this it appears that powdered resin could have been safely sprinkled on the belt; that to apply it with the hand by holding a lump of it against the belt was exceedingly dangerous. The danger to one applying resin to the belt, as the appellee here did, resulted, not from the place wherein it was necessary for the appellee to be, but from the manner in which the resin was applied. Powdered resin could have been applied to the belt without danger, and the evidence nowhere discloses that the appellee was directed to apply it by holding a lump thereof against the belt. He selected his own method, but aside from that, and assuming that applying the resin to the belt with the hand was a proper and the safest way so to do, nevertheless the appellant would not here be liable for the appellee's injury, for it was one of the ordinary and obvious risks of his employment, although the application of the resin to the belt exposed the person applying it to an extrahazardous risk; the "dangerous nature of the service (of itself alone) adds *Page 169
nothing to the liability of the master." 39 C.J. 709; Yazoo
M.V.R. Co. v. Hullum, 119 Miss. 229, 80 So. 645.
The verdict of the jury can be accounted for only on the supposition that it disregarded the instructions of the court which set forth the rule of the common law that an employer is not liable to an employee for an injury received in the course of his employment unless it was caused by the employer's negligence, and acted on the theory of a large and increasing number of the public that certain classes of employers should be held to insure the safety of their employees. This theory has no place in our law now and can be embodied therein only by legislative enactment.
The court below should have granted the appellant's request for a directed verdict.
Reversed, and judgment here for the appellant. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1463676/ | 591 F.3d 1199 (2010)
In the Matter of Lawrence E. ORMSBY; Cindy J. Ormsby, Debtors,
Lawrence E. Ormsby, Appellant,
v.
First American Title Company of Nevada, Appellee.
Nos. 08-15572, 08-15573.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 11, 2009.
Filed January 8, 2010.
*1202 Helga A. White, Esquire, Auburn, CA, for the appellant.
James A. Tiemstra, Esquire, Law Offices of James A. Tiemstra, CA, for the appellee.
*1203 Before: MARSHA S. BERZON, JANE R. ROTH,[*] and MARY M. SCHROEDER, Circuit Judges.
ROTH, Circuit Judge:
This is a bankruptcy case, in which a creditor, First American Title Company (FATCO), seeks to prevent the discharge of a state court judgment against the debtor, Lawrence Ormsby, under 11 U.S.C. §§ 523(a)(4) and (a)(6). The Nevada state court found Ormsby had converted and misappropriated property belonging to FATCO. Ormsby filed for bankruptcy protection, and FATCO moved to prevent the discharge of the state court judgment. The Bankruptcy Court granted summary judgment in favor of FATCO; the District Court, acting in an appellate capacity, affirmed. For the reasons given below, we affirm the District Court's order granting summary judgment in favor of FATCO. We also affirm the District Court's determination with regard to the withdrawal of FATCO's prior motion for attorney fees.
I.
We repeat here the findings of fact the Nevada state court made when it found Ormsby had engaged in misappropriation and conversion. FATCO, the creditor in this case, is a title company that provides escrow services and title insurance for real property transactions. Ormsby, the debtor in this case, is the owner of Inter-County Title Company of Nevada (Inter-County), which also provides escrow and title services.
Title companies like FATCO and Ormsby's Inter-County facilitate title searches that could otherwise only be conducted through an onerous search of the official public records for transactions affecting real property. Such records in Washoe County, Nevada, date back to the mid-1800s and reflect deeds, deeds of trust, mortgages, judgments, among other documents related to real property. The Washoe County Recorder organizes the various documents by creating a grantor/grantee index. To make the title search process easier, title companies create base files, subdivision files, and preliminary title reports, which in turn are used as aids for examining and insuring title. Title companies also compile documents in the form of title plants, which constitute a separate method of assembling recorded information based on the location of the property and which offer search capabilities far beyond the grantor/grantee index available at the county recorder.
In Washoe County, title companies use title plants covering four separate periods: 1901-1964, 1965-1978, 1979-1999, and 2000 to the present. These plants are leased to subscribers, who are not free to transfer, sell, assign, or allow others to access the plants. FATCO owned a one-seventh interest in the 1979-1999 plant and leased the other plant data.
In the spring of 2000, FATCO had possession of the three title plants covering the 1900s on microfiche and stored them in a non-public area for its use only. In addition, FATCO compiled a substantial number of base files, subdivision files, and preliminary title reports. Though these documents were made available to customers and sometimes to other title companies, FATCO considered most of these records private and proprietary.
In June of 1994, Joseph McCaffrey was hired to head FATCO's commercial title business. McCaffrey had access to all of *1204 FATCO's records and title plant microfiche and used them on a regular basis. He was aware that these were not public records but were private and proprietary.
In early 2000, Ormsby prepared Inter-County to begin operations in Washoe County. He purchased rights to the title plant for 2000 until the present but not to any of the plants covering the 1900s. Additionally, Ormsby solicited employees of FATCO to work for Inter-County. McCaffrey was one of the employees Ormsby was able to lure from FATCO. The two discussed the importance of access to the title plants to any new title company in the Washoe County area.
While he still had access to his office at FATCO, McCaffrey downloaded and e-mailed FATCO's proprietary base files, subdivision files, preliminary title reports, and other business records. McCaffrey, with the encouragement, cooperation, and assistance of Ormsby, appropriated the 1901-1964, 1965-1978, and 1979-1999 title plants from the possession of FATCO. Ormsby took the title plants and sent them to a non-local copy service for duplication.
Inter-County then used these appropriated title plants in searching titles and issuing policies. It did so until the return of the copied plants was compelled by court order. From May 2000 until the plants were returned in August 2002, Inter-County handled approximately 3000 escrows. The estimated cost savings realized by Inter-County's use of the plants was about $50 per transaction, resulting in an estimated $150,000 in savings.
In 2002, FATCO filed an action against Ormsby in the Second Judicial District Court of Nevada in and for the County of Washoe. Before trial, FATCO settled with McCaffrey for $15,000, under the condition that McCaffrey testify against Ormsby. The court found that Ormsby encouraged, assisted, and cooperated with McCaffrey in misappropriating the title plants from FATCO and used those plants to conduct title searches for the purposes of issuing title insurance. The court also found that Ormsby converted for Inter-County's use the base files, subdivision files, and preliminary title reports of FATCO to assist in the opening of the business. The court found that, in the misappropriation of the title plants and files, Ormsby had acted maliciously in that his conduct was willful, wanton, and reckless.
The court granted $141,500[1] in compensatory damages based on the measure of a reasonable royalty for a misappropriator's unauthorized disclosure or use of a trade secret. Punitive, or exemplary, damages were also awarded in the amount of $283,000 based on evidence of willfulness in Ormsby's cooperation with McCaffrey in taking, copying, and surreptitiously returning the title plants and files. The court awarded pre-judgment interest of $47,593.83 on the compensatory damages, attorney fees of $223,159.50, and costs of $36,821.83.
Ormsby and his wife subsequently filed for Chapter 7 bankruptcy protection in the Bankruptcy Court for the Eastern District of California, Sacramento Division. FATCO filed a complaint with the court to establish that the judgment Ormsby owed was non-dischargeable under 11 U.S.C. § 523(a)(4) and (a)(6). FATCO then filed for summary judgment, which was granted. Ormsby filed a motion for reconsideration that was rejected. He then appealed to the Bankruptcy Appellate Panel. FATCO filed a motion for transfer to the District Court for the Eastern District of California, which affirmed the bankruptcy *1205 court's grant of summary judgment in favor of FATCO. Ormsby now appeals to this Court.
II.
Ormsby suggests that the state court judgment against him did not constitute larceny within the federal definition of the term and that the court made no findings of willful or malicious injury. As a result, he contends, summary judgment was inappropriate because the issues are not precluded by the state court judgment. We disagree.[2] The state court judgment is sufficient to preclude relitigation of whether Ormsby's conduct meets the requirements of subsection 523(a)(4) or of subsection 523(a)(6), either of which would be sufficient to prevent the discharge of the judgment debt.[3]
A. Section 523(a)(4)
Section 523(a)(4) prevents discharge "for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." 11 U.S.C. § 523(a)(4). "For purposes of section 523(a)(4), a bankruptcy court is not bound by the state law definition of larceny but, rather, may follow federal common law, which defines larceny as a `felonious taking of another's personal property with intent to convert it or deprive the owner of the same.'" 4 Collier on Bankruptcy ¶ 523.10[2] (15th ed. rev. 2008).[4]
Ormsby's main contention is that the facts of the state court judgment do not prove larceny for the application of section 523(a)(4) because the federal definition of larceny requires fraudulent intent whereas conversion[5] under Nevada state law does not require a finding of fraudulent intent. Conversion is defined as "a distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights. Additionally, *1206 conversion is an act of general intent, which does not require wrongful intent and is not excused by care, good faith, or lack of knowledge." M.C. Multi-Family Development, L.L.C. v. Crestdale Assoc., Ltd., 193 P.3d 536, 542-43 (Nev.2008) (internal citations omitted). Accordingly, Ormsby argues that the state court's finding of conversion does not translate to a finding of larceny; therefore, the issue is not precluded.
We make no determination concerning whether federal law requires a finding of fraudulent intent for larceny as Ormsby contends.[6] Were we to find that larceny required fraudulent intent, the state court judgment would provide enough information to determine that the court found that his actions amounted to fraud, because "[i]ntent may properly be inferred from the totality of the circumstances and the conduct of the person accused." Kaye v. Rose (In re Rose), 934 F.2d 901, 904 (7th Cir.1991). The totality of the circumstances as described in the state court's findings of fact make clear that Ormsby acted with fraudulent intent. When he started Inter-County, he purchased the rights to use the title plant for 2000 until the present, demonstrating that he was aware of the lawful means of obtaining access to them. Rather than purchasing the rights to the title plants for the 1900s, he hired McCaffrey away from a competing title company and discussed with him the importance of the title plants to a new title company. While McCaffrey still had access to the plants that FATCO possessed, Ormsby encouraged, cooperated, and assisted McCaffrey's removal of the plants and their reproduction. Of particular note, Ormsby sent the microfiche containing the plants to a non-local copying service, likely to avoid detection. Based on these facts found by the state court, Ormsby's conduct constituted larceny within the federal meaning of the term; accordingly under section 523(a)(4), his debt cannot be discharged.
B. Section 523(a)(6)
Section 523(a)(6) prevents discharge "for willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). The Supreme Court in Kawaauhau v. Geiger (In re Geiger), 523 U.S. 57, 118 S. Ct. 974, 140 L. Ed. 2d 90 (1998), made clear that for section 523(a)(6) to apply, the actor must intend the consequences of the act, not simply the act itself. Id. at 60, 118 S. Ct. 974. Both willfulness and maliciousness must be proven to block discharge under section 523(a)(6).
i. Willful Injury
In this Circuit, "§ 523(a)(6)'s willful injury requirement is met only when the debtor has a subjective motive to inflict injury or when the debtor believes that injury is substantially certain to result from his own conduct." Carrillo v. Su (In re Su), 290 F.3d 1140, 1142 (9th Cir.2002). The Debtor is charged with the knowledge of the natural consequences of his actions. Cablevision Sys. Corp. v. Cohen (In re Cohen), 121 B.R. 267, 271 (Bankr.E.D.N.Y. 1990); see Su, 290 F.3d at 1146 ("In addition to what a debtor may admit to knowing, the bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action.").
Ormsby contends section 523(a)(6) does not apply because the state court did not adopt a finding that Ormsby had the *1207 subjective intent to injure FATCO or that he believed that FATCO's injury was substantially certain to occur as a result of his conduct. Ormsby must have known that FATCO's injury was substantially certain to occur as a result of his conduct. Because Ormsby paid for access to the title plants for 2000 until present, he was necessarily aware that his use of FATCO's title plants and other materials without paying for them had an economic value. The state court explicitly found that FATCO's suffered injury by granting $141,500 in compensatory damages based on the measure of a reasonable royalty for a misappropriator's unauthorized disclosure or use of a trade secret. Ormsby therefore inflicted willful injury on FATCO.
ii. Malicious Injury
"A malicious injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir.2001) (internal citations omitted). Malice may be inferred based on the nature of the wrongful act. See Transamerica Commercial Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 554(9th Cir.1991).[7] To infer malice, however, it must first be established that the conversion was willful. See Thiara, 285 B.R. at 434.
In this case, Ormsby knew that FATCO's injury was substantially certain to occur as a result of his conduct. Ormsby additionally knew the legal way to obtain access to the title plants was to purchase rights. The state court found FATCO suffered an injury as a result of this use, and Ormsby has offered no just cause or excuse for his conduct.[8] Moreover, in granting attorney's fees, the state court found the misappropriation was willful and malicious.
Based on these facts found by the state court, Ormsby's conduct meets both the willful and malicious prongs of section 523(a)(6); accordingly, we affirm the nondischargeability of the judgment.
III.
Ormsby contests the District Court's grant of FATCO's motion to withdraw from the Bankruptcy Court consideration of FATCO's prior motion for attorney's fees.[9] The court withdrew FATCO's motion for fees to the Bankruptcy Court, which had dropped the motion from the court's calendar until the completion of the appellate process. See 28 U.S.C. § 157(d) ("The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown."). The District Court determined that judicial economy justified the withdrawal. See Security Farms, 124 F.3d at 1008 ("In determining whether cause exists, a district court should consider *1208 the efficient use of judicial resources, delay and costs to the parties, uniformity of bankruptcy administration, the prevention of forum shopping, and other related factors.").
The District Court's withdrawal of the motion and subsequent decision on attorney's fees was not improper. This Circuit has stated "that a district court retains the power to award attorney's fees after a notice of appeal from the decision on the merits has been filed." U.S. ex rel. Shutt v. Cmty. Home & Health Care Servs., Inc., 550 F.3d 764, 766 (9th Cir.2008) (internal citation omitted). Accordingly, we affirm the District Court's grant of FATCO's motion to withdraw the reference in regard to its motion for attorney's fees.
IV.
For the foregoing reasons, we affirm the District Court's judgment that Ormsby's debt is nondischargeable under either section 523(a)(4) and (a)(6). Additionally, we affirm the District Court's grant of FATCO's motion to withdraw the reference in regard to its motion for attorney's fees.
AFFIRMED.
NOTES
[*] The Honorable Jane R. Roth, Senior United States Circuit Judge for the Third Circuit, sitting by designation.
[1] Another title company, Founders, received additional compensatory damages in the amount of $8,500 for the use of the 1901-1964 title plant. These damages are not at issue in this case.
[2] This Court reviews a "bankruptcy court's decision independently, without deference to the district court." Zurich Am. Ins. Co. v. Int'l Fibercom, Inc. (In re Int'l Fibercom, Inc.), 503 F.3d 933, 940 (9th Cir.2007). "The bankruptcy court's conclusions of law, including its interpretation of the Bankruptcy Code, are reviewed de novo and its factual findings are reviewed for clear error." Id.
[3] The preclusive effect of a state court judgment rests upon the preclusion law of the state in which the judgment was issued. Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir.1995). Under Nevada state law, issue preclusion is appropriate when "(1) the issue decided in the prior litigation [is] identical to the issue presented in the current action; (2) the initial ruling [was] on the merits and [has] become final; and (3) the party against whom the judgment is asserted [is] a party in privity with a party to the prior litigation." Kahn v. Morse & Mowbray, 121 Nev. 464, 117 P.3d 227, 235 (2005). Issue preclusion may apply "even though the causes of action are substantially different, if the same fact issue is presented." LaForge v. State, Univ. & Cmty. Coll. Sys. of Nev., 116 Nev. 415, 997 P.2d 130, 134 (2000) (internal citations omitted).
[4] Felonious is defined as "`proceeding from an evil heart or purpose; malicious; villainous. . . Wrongful; (of an act) done without excuse of color of right.'" Elliott v. Kiesewetter (In re Kiesewetter), 391 B.R. 740, 748 (Bankr.W.D.Pa.2008) (quoting BLACK'S LAW DICTIONARY (8th ed. 2004)).
[5] The Bankruptcy Court noted that the state court seemed to merge the findings of conversion and misappropriation. The Bankruptcy Court ultimately determined that the distinction between the two bases of liability was not sufficiently great to make a difference in its determination that the judgment was nondischargeable. We agree with the Bankruptcy Court to the extent that the state court conversion finding is alone sufficient to support nondischargeability under section 523(a)(4). Nondischargeability under section (a)(6), which the Bankruptcy Court did not address, does seem to require the finding of misappropriation to apply.
[6] The District Court in this case found fraudulent intent was not necessary under the federal definition of larceny, though it acknowledged precedent stating otherwise.
[7] The Supreme Court in Geiger did not address the malicious prong of section 523(a)(6). The Bankruptcy Appellate Panel for this Circuit has thus determined that its discussion of malice in Littleton survived Geiger. See Thiara v. Spycher Bros. (In re Thiara), 285 B.R. 420, 434 (9th Cir. BAP 2002).
[8] See Jercich, 238 F.3d at 1209(finding maliciousness, the Ninth Circuit stated, "[T]he state court found Jercich knew he owed Petralia the wages and that injury to Petralia was substantially certain to occur if the wages were not paid; that Jercich had the clear ability to pay Petralia the wages; and that despite his knowledge, Jercich chose not to pay and instead used the money for his own personal benefit. Jercich has pointed to no `just cause or excuse' for his behavior.").
[9] This court reviews a district court's decision to withdraw the reference for an abuse of discretion. See Security Farms v. Int'l Bhd. of Teamsters, Chauffers, Warehousemen & Helpers 124 F.3d 999, 1008 (9th Cir.1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2997821/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1549
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRENISE BLAYLOCK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-CR-147—Charles N. Clevert, Jr., Judge.
____________
ARGUED MARCH 29, 2005—DECIDED JUNE 28, 2005
____________
Before CUDAHY, WOOD, and SYKES, Circuit Judges.
CUDAHY, Circuit Judge. Trenise Blaylock pleaded guilty
to armed bank robbery and related offenses. At sentencing
she stipulated to all upward adjustments under the guide-
lines save one: that she was an organizer or leader of a
criminal activity involving at least five participants. On
appeal she contends for the first time that she did not have
sufficient control over four other participants to warrant
that adjustment. Also for the first time, Blaylock invokes
United States v. Booker, 125 S. Ct. 738 (2005). Although we
find Blaylock’s arguments regarding the adjustment for her
2 No. 03-1549
leadership role to be meritless, we remand for further pro-
ceedings under the procedure articulated in United States
v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005).
Blaylock planned the robbery of Milwaukee’s Guardian
Credit Union, her former employer, and personally re-
cruited three accomplices to help her. Her first recruit was
her cousin, Lakesha Bruce. Blaylock then enlisted Omar
Nelums and Weylin Shurn and tasked them with getting
guns and stealing a getaway car. Blaylock was the one who
chose the date of the robbery, April 11, 2002, because she
knew that a shipment of $400,000 was due to arrive that
day. She also drew a map of the credit union and parking
lot and described details of the facility and its employees.
The plan was a failure. Blaylock, Bruce, Nelums, and
Shurn all went to the bank at closing time and waited out-
side in the stolen car. When two of the tellers made their
exit, Nelums and Shurn tried to grab them in the parking
lot. One teller ran with Shurn in pursuit, while Nelums
forced the other at gunpoint to the credit union’s side door.
Afraid for the teller’s life, the manager let Nelums enter;
when he got inside, Nelums shot the security cameras with
his gun. But the bank employees told him that they could
not open the drawers where he thought he would find the
$400,000, so he grabbed $5,300 from another drawer and
ran away. As he fled, a red dye pack in the loot exploded in
his face. Nelums jumped into the getaway car with Blaylock
and Bruce, and the three sped away. Meanwhile, Shurn had
caught the other teller but let her go and jumped in the
getaway car as it came by.
With Nelums covered in red dye and the others overcome
by fumes, the fearsome foursome needed a place to clean up
and regroup. As they neared the home of Jermaine Shurn,
Weylin’s brother, the four abandoned the getaway car and
walked to the house. Jermaine’s wife took them to the
basement to wash up, and Jermaine disposed of Nelums’
No. 03-1549 3
clothes and other signs of their presence. Weylin Shurn
called another brother, Terrecho Shurn, to drive them
home. Terrecho hid Nelums and Weylin Shurn in the back
of his car, while Blaylock and Bruce rode in the front seat
since they had stayed in the getaway car and would not be
recognized. According to the district court’s findings of fact,
Jermaine, Jermaine’s wife, and Terrecho all knew about the
robbery plot beforehand.
Ultimately, Blaylock pleaded guilty to armed bank
robbery, 18 U.S.C. § 2113(a), (d); conspiracy to commit the
robbery, id. §§ 371, 2113(a), (d); and using and carrying a
firearm during a crime of violence, id. § 924(c). At sentenc-
ing Blaylock objected to the four-level increase under
U.S.S.G. § 3B1.1(a) for organizing or leading a criminal
activity with five or more participants. The court denied her
objection. Nonetheless, it granted a downward departure for
substantial assistance in the prosecution of her
codefendants, see U.S.S.G. § 5K1.1, effectively lowering her
total offense level for the robbery and conspiracy counts
from 25 to 22. Using that offense level and Blaylock’s
Category I criminal history as a guide, the court sentenced
her to concurrent sentences of 41 months on those counts,
the low end of the departure “range” and well below the ac-
tual range of 57 to 71 months. The court imposed a con-
secutive sentence of 120 months on the § 924(c) conviction,
the mandatory minimum since the gun was fired. See 18
U.S.C. § 924(c)(1)(A)(iii).
Section 3B1.1(a) provides for a four-level increase if the
defendant was “an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a). In determining the
defendant’s role, the sentencing court must assess all “rele-
vant conduct” under U.S.S.G. § 1B1.3, not just the elements
of the offense charged. U.S.S.G. § 3B1.1(a), intro. cmt. In
the case of joint criminal activity, relevant conduct includes
“all reasonably foreseeable acts and omissions of others in
4 No. 03-1549
furtherance of the jointly undertaken criminal activity . . .
that occurred during the commission of the offense of
conviction . . . or in the course of attempting to avoid
detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a)(1), (a)(1)(B). Whether the defendant is a leader
or organizer of a criminal activity involving five or more
people requires a finding of fact that we review for clear
error. United States v. Reneslacis, 349 F.3d 412, 416 (7th
Cir. 2003). That standard has not changed after Booker. See
United States v. Parra, 402 F.3d 752, 762-63 (7th Cir. 2005)
(explaining that the standard of review for denial of a
downward adjustment under U.S.S.G. § 3B1.2 is still clear
error after Booker); United States v. Turner, 400 F.3d 491,
500 (7th Cir. 2005) (reviewing a sentencing court’s factual
findings for clear error after Booker).
As she did in the district court, Blaylock insists that she
was one of only four participants, not five or more. Accord-
ing to Blaylock, the district court should not have counted
Terrecho Shurn as a participant even though he helped her
and Bruce, Nelums and Weylin escape. A “participant” is
someone “who is criminally responsible for the commission
of the offense, but need not have been convicted.” U.S.S.G.
§ 3B1.1, cmt. n.1. What matters is that he knowingly aided
some part of the criminal enterprise. United States v. Hall,
101 F.3d 1174, 1178 (7th Cir. 1996); United States v.
Michalek, 54 F.3d 325, 333-34 (7th Cir. 1995). Blayock rea-
sons that Terrecho was not a participant since, in her view,
the robbery was over as soon as the foursome reached
Jermaine Shurn’s house, and whether she “accepted a ride
from Terrecho Shurn, walked home, or called a cab, was
immaterial.”
This contention ignores much of the record. Terrecho’s
effort to hide Weylin and Nelums made the ride part of the
getaway, not a favor for family and friends. As the district
court explained and as Blaylock admitted at sentencing,
Nelums was covered in red dye and the others overcome by
No. 03-1549 5
fumes when they arrived at the Shurns’ house. Without a
place to clean up and regroup, their flight certainly would
have been more obvious. And the ride they received from
Terrecho put them further from the stolen getaway car.
Indeed, the need to abandon the stolen car was foreseeable
and supports the inference that all along they planned a
separate leg to their getaway involving the Shurns.
Moreover, in adopting the factual statements in the pre-
sentence report, the district court also found that Jermaine
and his wife were participants, and nowhere in her opening
brief does Blaylock challenge that finding as clearly errone-
ous. Blaylock instead accuses the government of misrepre-
senting the record in counting Jermaine and his wife as
participants, but it is Blaylock herself who misreads the
record. The presentence report identifies Jermaine and his
wife as participants and since Blaylock waited until her
reply brief to contest that finding, she waived the argument.
See United States v. Harris, 394 F.3d 543, 559 (7th Cir.
2005) (arguments not raised in opening brief are waived);
United States v. Stevens, 380 F.3d 1021, 1025 (7th Cir.
2004) (same). So whether the fifth participant was Terrecho
or another one of the Shurns, we have no doubt that there
were at least five participants in this criminal enterprise.
That takes us to Blaylock’s second point. She contends,
citing United States v. Guyton, 36 F.3d 655, 662 (7th Cir.
1994), that § 3B1.1(a) requires not only that she have been
a leader or organizer in a criminal enterprise with five or
more participants, but also that she have exerted “con-
trol”—whether direct or indirect—over at least four other
participants besides herself. Although Blaylock concedes
she exercised control over three participants, she insists
that there was no evidence that she ever exerted any con-
trol over a fourth participant. Blaylock explains that she
never even met Terrecho before getting into his car, and as
before she says nothing about Jermaine and his wife.
Blaylock’s objection at sentencing, however, was based only
6 No. 03-1549
on the number of participants, so this “control” argument
was not preserved for appeal and is reviewed for plain
error. See United States v. Kamoga, 177 F.3d 617, 620-22 &
n.5 (7th Cir. 1999) (arguments raised for first time on
appeal are reviewed for plain error).
In Guyton we vacated the sentence of a drug conspirator
responsible for the distribution of over five kilograms of
crack cocaine because the district court increased his of-
fense level four levels when there was no evidence of control
over at least four other members of the conspiracy. Guyton,
36 F.3d at 661-62. Guyton had personally recruited two
other conspirators, which showed control— whether direct
or indirect—over those two co-conspirators, but there was
no evidence of control over two more. Id. at 662. The record
showed he fronted drugs to at least four members of the
conspiracy, but we reasoned that fronting drugs without
evidence of actual control was not enough. Id.
Guyton would thus appear to require a formalistic
showing of control over at least four participants, and that
is how we stated the rule in several other cases (sometimes
in dicta). E.g., United States v. Richards, 198 F.3d 1029,
1033-34 (7th Cir. 2000); United States v. Zaragoza, 123 F.3d
472, 483 (7th Cir. 1997); United States v. Magana, 118 F.3d
1173, 1203 (7th Cir. 1997); United States v. Barnes, 117
F.3d 328, 337 (7th Cir. 1997); United States v. Hall, 109
F.3d 1227, 1234-35 (7th Cir. 1997); United States v. Salinas,
62 F.3d 855, 862 (7th Cir. 1995); United States v. Carson, 9
F.3d 576, 584 (7th Cir. 1993); United States v. Schweihs,
971 F.2d 1302, 1318 (7th Cir. 1992); United States v.
McGuire, 957 F.2d 310, 316-17 & n.4 (7th Cir. 1992). These
cases reiterate a test that in McGuire, 957 F.2d at 317 n.4,
we imported from United States v. Reid, 911 F.2d 1456,
1464-65 & n.8 (10th Cir. 1990). We noted in McGuire:
The court in Reid stated . . . that a defendant receiving
a “leader or organizer” enhancement under § 3B1.1(a)
No. 03-1549 7
must have some control, direct or indirect, over the five
participants. This makes sense: to lead an organization
you must control its members.
McGuire, 957 F.2d at 317 n.4. Our observation was dicta,
because McGuire was a case about § 3B1.1(b), but we soon
applied it to the four-level adjustment. Schweihs, 971 F.2d
at 1318. The Tenth Circuit, however, has since reconsidered
and rejected its requirement of control over four partici-
pants, reasoning that a 1993 amendment to Application
Note 2 clarifies that control over a single participant is all
that is required.1 United States v. Cruz Camacho, 137 F.3d
1220, 1224 n.3 (10th Cir. 1998) (“In light of this substantive
change to the guidelines, we believe our language in Reid,
which was proper in regards to the guidelines in place at
that time, is no longer good law.”). Meanwhile, the Fifth
Circuit also considered and expressly rejected McGuire and
Reid, likewise reasoning that the 1993 amendment clarified
that control was necessary over only one person. United
States v. Okoli, 20 F.3d 615, 616 (5th Cir. 1994). Indeed, to
the extent that we still cling to the formalistic requirement,
we are virtually alone. Cf. United States v. Gaskin, 364 F.3d
438, 466-67 (2d Cir. 2004) (control over one or more partici-
pants is necessary for § 3B1.1(a) to apply); United States v.
Eis, 322 F.3d 1023, 1025 (8th Cir. 2003) (per curiam)
(same); United States v. Owusu, 199 F.3d 329, 345-47 (6th
Cir. 2000) (same); Cruz Camacho, 137 F.3d at 1224 n.3
1
The 1993 amendment added what is now Application Note 2:
To qualify for an adjustment under this section, the defendant
must have been the organizer, leader, manager, or supervisor
of one or more other participants. An upward departure may
be warranted, however, in the case of a defendant who did not
organize, lead, manage, or supervise another participant, but
who nevertheless exercised management responsibility over
the property, assets, or activities of a criminal organization.
U.S.S.G. App. C, amend. 500 (effective Nov. 1, 1993).
8 No. 03-1549
(same); United States v. Harris, 39 F.3d 1262, 1270-71 (4th
Cir. 1994) (same); Okoli, 20 F.3d at 616 (same); United
States v. Barnes, 993 F.2d 680, 684-86 (9th Cir. 1993)
(same). And even our own cases demonstrate a move away
from the rigid approach. See United States v. Hardamon,
188 F.3d 843, 851-52 (7th Cir. 1999) (control over at least
four participants is not required); Kamoga, 177 F.3d at 620-
22 (same); see also United States v. Hanhardt, 361 F.3d 382,
393-94 (7th Cir. 2004) (explaining that a defendant must
have organized or directed another participant for
§ 3B1.1(a) to apply), vacated and remanded for further
proceedings sub nom. Altobello v. United States, 125 S. Ct.
994 (2005); United States v. Mijangos, 240 F.3d 601, 604-05
(7th Cir. 2001) (same). We thus question whether we should
have perpetuated our own adherence to Reid after the 1993
amendment to the guidelines made clear that “control” over
only one person is necessary. See Cruz Camacho, 137 F.3d
at 1224 n.3.
Regardless, we already rejected an argument indistin-
guishable from Blaylock’s in United States v. Kamoga—al-
though Blaylock inexplicably failed to bring that case to our
attention and attempt to distinguish it. Robert Kamoga was
convicted of bank fraud and his offense level increased by
four levels because he was the leader of a scheme to cash
worthless checks and distribute the proceeds among his co-
conspirators. Kamoga, 177 F.3d at 618-20. Luring them
with the promise of “fast money,” Kamoga first recruited
two middlemen, Newton and Jones, and directed them to
enlist “someone else” to deposit counterfeit checks from
Kamoga. Id. at 619. Newton and Jones signed up Bledsoe,
and Bledsoe recruited Vinson and Strickland. Id. Then
Kamoga gave Newton two fraudulent checks, which Newton
passed to Bledsoe. Id. Bledsoe made the checks payable to
S & S Enterprises (owned by Vinson and Strickland). Id.
The checks found their way to Strickland, who opened a
new account for S & S, where he deposited them, withdraw-
No. 03-1549 9
ing the proceeds. Id. Strickland, however, was arrested, and
Kamoga’s plan unraveled. Id. Kamoga argued that the four-
level adjustment was unwarranted because there was no
evidence that he controlled anyone but Newton and Jones,
or that he even knew or could reasonably have foreseen that
there were at least four other participants in the criminal
enterprise. Id. at 620-21. Rejecting his arguments, we held
that—Guyton notwithstanding—we do not mechanically
require the defendant to exercise “control” over four other
participants in order for the four-level adjustment to apply.
Kamoga, 177 F.3d at 620-22 & n.4; see also Hardamon, 188
F.3d at 851-52 (citing Kamoga). All that is required is that
the defendant provide leadership and organization for a
criminal enterprise comprised of five or more persons and
actually control at least one of the participants. Hanhardt,
361 F.3d at 393-94; Mijangos, 240 F.3d at 604-05. And the
defendant’s leadership role can be demonstrated by any of
seven factors. U.S.S.G. § 3B1.1, cmt. n.4 (“Factors the court
should consider include the exercise of decision making
authority, the nature of participation in the commission of
the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the degree
of participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of
control and authority exercised over others.”). These factors
in mind, the dispositive question is relative responsibility
for the crime—not “control” over each of the other partici-
pants as such. Kamoga, 177 F.3d at 621; see also
Hardamon, 188 F.3d at 851-52. Therefore, it is enough that
the other participants act “in furtherance” of the defen-
dant’s plan; to hold otherwise would permit “masterminds”
to escape responsibility by delegating duties. Kamoga, 177
F.3d at 621-22. Here, Blaylock was just the type of master-
mind we envisioned in Kamoga. She was the impetus
behind the robbery, had the inside knowledge, and devised
the plan. She also recruited three participants who in turn
recruited all of the remaining participants. And because
10 No. 03-1549
Terrecho was a part of the criminal enterprise that Blaylock
masterminded, it is irrelevant whether she had ever met
him before getting into his car. Thus, the record supports
the adjustment.
All that is left is Booker, 125 S. Ct. 738. Because Blaylock
raises her Booker argument for the first time on appeal, we
review it under the plain-error standard articulated in
Paladino, 401 F.3d at 481-84. As the government concedes,
a limited remand under Paladino is required here because
there is no way to be certain whether the sentencing judge
would have given a shorter sentence under the guidelines
had he known they were advisory. See id. (explaining that
remand is appropriate when we are in doubt about whether
the judge would have imposed a lighter sentence under an
advisory regime); United States v. Lee, 399 F.3d 864, 866
(7th Cir. 2005) (same); see also United States v. Woodard,
408 F.3d 396, 399 (7th Cir. 2005) (remanding under
Paladino where the district court erred by applying the
guidelines as if they were mandatory, although there was
no Sixth Amendment violation); United States v. Castillo,
406 F.3d 806, 823-24 (7th Cir. 2005) (same); United States
v. White, 406 F.3d 827, 834-37 (7th Cir. 2005) (same). Thus,
although the district court properly calculated Blaylock’s
sentence under the formerly mandatory regime, we order a
LIMITED REMAND, while retaining jurisdiction, so the
district court may consider whether it would impose a
different sentence under the now-advisory guidelines.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-05 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2998968/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 5, 2006
Decided April 26, 2006
Before
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3861
Appeal from the United States
JASON SEDDON, District Court for the
Plaintiff-Appellant, Southern District of Illinois.
v. No. 04 C 4058
MAYTAG CORPORATION, J. Phil Gilbert,
Defendant-Appellee. Judge.
ORDER
Jason Seddon filed this action in Illinois state court alleging his former
employer, Maytag Corporation, violated Illinois law by constructively discharging
him for filing a workers’ compensation claim. Maytag removed the action to the
United States District Court for the Southern District of Illinois, and that court
properly exercised its diversity jurisdiction under 28 U.S.C. § 1332: Seddon is an
Illinois citizen seeking more than $75,000 in damages, and Maytag is a Delaware
corporation with its principal place of business in Iowa. The district court granted
Maytag’s motion for summary judgment and Seddon appealed. We affirm the
district court’s judgment because the Illinois appellate courts have never recognized
a retaliation action based on constructive discharge.
Seddon hurt his back while working on Maytag’s assembly line in November
2002. On December 2, 2002, Seddon filed a workers’ compensation claim with the
No. 05-3861 Page 2
Illinois Industrial Commission naming Maytag as the respondent. He returned to
work following his injury, but his back pain persisted so he visited his chiropractor
in late December. His chiropractor found him “totally incapacitated” and said he
should refrain from all work. In February 2003 Maytag required Seddon to submit
to an examination by a physician of its choosing; Maytag’s doctor concluded he could
return to work immediately without any “light duty” restrictions. Seddon followed
his chiropractor’s advice and remained on unpaid medical leave until late June
2003, when his personal physician drafted a note indicating he could return to
work. During his six-month absence, Seddon received disability insurance
payments and kept Maytag advised of his medical status by providing the company
with doctor’s notes every thirty days as required by his union’s contract with
Maytag.
Seddon reported back for work on June 28 but soon encountered further back
pain causing him to miss work July 16-18. His personal physician wrote a note
dated July 21 asking Maytag to “[p]lease allow Jason to do no bending or heavy
lifting due to low back sprain.” Maytag refused to assign Seddon to “light duty”
work because in February its doctor cleared him to return to work without
restrictions. Due to Maytag’s refusal to place him “light duty” status, Seddon
returned to unpaid medical leave on July 22. At his deposition Seddon disputed
whether he was on leave during July and August 2003, but he was surely aware
Maytag considered him on leave when the company sent him a letter dated
August 26. The letter advised Seddon that he had not updated the company on his
medical status within the past thirty days, and that if he did not do so by
September 9, the company would “assume that you no longer wish to remain on
leave of absence and have terminated your employment with Maytag [].” Seddon
received the August 26 letter but never responded or provided Maytag with updated
medical information as required by his union’s contract. Consequently, Maytag
sent Seddon a letter dated September 11 advising him that his employment was
terminated due to his failure to update his medical information by the September 9
deadline.
Seddon’s counsel made it clear both in his appellate briefs and at oral
argument that he bases his retaliation claim solely on the constructive discharge he
allegedly suffered when Maytag refused to give him “light duty” work in July 2003.
He does not contend that his actual termination in September 2003 was the product
of unlawful retaliation. The district court concluded Seddon could not prevail
because Illinois law does not recognize a retaliatory discharge action for anything
short of actual termination and there was no evidence connecting his actual
discharge to any unlawful motive.
The Illinois Supreme Court has never recognized a cause of action for
retaliatory constructive discharge, and it has repeatedly emphasized its
disinclination to expand the present scope of retaliation claims. E.g., Metzger v.
No. 05-3861 Page 3
DaRosa, 805 N.E. 2d 1165, 1173 (Ill. 2004) (“[T]his court has consistently sought to
restrict the common law tort of retaliatory discharge. . . . We have . . . never
recognized a common law tort for any injury short of actual discharge.”); Fisher v.
Lexington Health Care, Inc., 722 N.E. 2d 1115, 1121 (Ill. 1999) (“this court has thus
far declined to recognize a cause of action for retaliatory constructive discharge or
retaliatory demotion”); Zimmerman v. Buchheit of Sparta, Inc., 645 N.E. 2d 877,
882 (Ill. 1994) (“We note that Illinois courts have refused to accept a ‘constructive
discharge’ concept.”); Hartlein v. Ill. Power Co., 601 N.E. 2d 720, 730 (Ill. 1992) (“We
further decline to expand the tort of retaliatory discharge, on these facts, to
encompass the concept of ‘constructive discharge.’”); Hinthorn v. Roland’s of
Bloomington, Inc., 519 N.E. 2d 909, 912 (Ill. 1988) (“We agree that plaintiff has
sufficiently alleged that she was discharged, but wish to make abundantly clear
that we are not now endorsing the constructive discharge concept.”).
In light of these precedents from the Illinois Supreme Court, we have
previously noted that Illinois courts do not recognize retaliation claims based on
constructive discharge. Thomas v. Guardsmark, Inc., 381 F.3d 701, 707 (7th Cir.
2004) (“only an actual termination can support an employee’s retaliatory discharge
claim under Illinois law”). Our decision in Thomas also discussed the long and
uninterrupted line of Illinois cases frowning upon any expansion of retaliatory
discharge beyond actual terminations. Id. at 708. Seddon cites two unreported
district court decisions that suggest the Illinois Supreme Court has not categorically
foreclosed the possibility of recognizing a retaliatory constructive discharge claim in
the future. See Contreras v. Suncast Corp., No. 96 C 3439, 1997 WL 598120, at *5
(N.D. Ill. Sept. 19, 1997); Handel v. Belvedere USA Corp., No. 00 C 50420, 2001 WL
1286842, at *2 (N.D. Ill. Oct. 22, 2001). But as things stand now, retaliatory
constructive discharge claims are not recognized in Illinois, and the Illinois
Supreme Court’s language strongly discourages us from turning Seddon’s claim into
a novel cause of action under Illinois law.
Seddon urges us to ask the Illinois Supreme Court whether it would
recognize his claim, but there is no need to certify a question because that court has
had “‘an opportunity to illuminate a clear path on the issue.’” Liberty Mut. Fire Ins.
Co. v. Statewide Ins. Co., 352 F.3d 1098, 1100 (7th Cir. 2003) (quoting State Farm
Mut. Auto Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001)). All of the Illinois
Supreme Court’s decisions point in the same direction: against the recognition of a
claim for retaliatory constructive discharge.
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2998998/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1932
JAMES E. MILLER, JR.,
Plaintiff-Appellee,
v.
ARTHUR L. JONES, Police Chief,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 987—Thomas J. Curran, Judge.
____________
ARGUED DECEMBER 8, 2005—DECIDED APRIL 17, 2006
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Former Milwaukee Police Depart-
ment officer James E. Miller, Jr., claims that he was
transferred to a less desirable position because of his speech
in opposition to actions taken by then Chief of Police Arthur
L. Jones. Miller brought this civil rights action against
Jones and the City, pursuant to 42 U.S.C. § 1983, seeking
relief in the form of a declaratory judgment and compensa-
tory and punitive damages. At the close of discovery,
defendants moved for summary judgment on the ground
that no material facts were in dispute and that they were
entitled to judgment as a matter of law. The district court
denied this motion, but dismissed any claim made against
Jones in his official capacity only. Jones appeals the district
2 No. 05-1932
court’s refusal to grant him qualified immunity arguing
that Miller’s speech was not protected because it did not
address a matter of public concern. For the following
reasons, we affirm.
I. BACKGROUND
The facts of this case are not in dispute, and due to the
limited nature of the appeal we focus on the events sur-
rounding the plaintiff’s speech. James Miller is a former
officer with the Milwaukee Police Department (MPD) who
was transferred from the Community Services Division
(CSD) to patrol duty on May 27, 2003. Miller was assigned
to the Community Services Division in 1992 and spent
eleven years working with the Police Athletic League (PAL).
PAL provides educational and recreational activities for
young people between the ages of five and eighteen. These
activities are staffed by Milwaukee police officers, such as
Miller, who provide their services free of charge. Other than
this in-kind labor, PAL receives no funding from the Police
Department and is organized as a non-profit corporation
under Wisconsin state law. The MPD benefits from the
opportunity to interact with community youths in an
indirect law enforcement capacity. PAL’s Board of Directors
is staffed by both private citizens and members of the MPD,
including the Chief of Police.
While working with PAL, Miller served in a number of
different roles. Following a formal selection process in 1992,
he was chosen by the Board to serve as the Executive
Director. The Executive Director is the chief operating
officer of the organization and, subject to the control of the
Board, is responsible for supervising, controlling, and
directing the programming, workforce, and finances. By
1997, Miller also assumed the duties of Treasurer. In both
positions, he was responsible for reporting to the Board
on areas under his control.
No. 05-1932 3
Due to scheduling difficulties with MPD facilities, PAL
decided to construct their own athletic center sometime
in 1997. Between 1997 and 2002, PAL raised funds, estab-
lished a building committee, and developed plans with
architects and builders. Miller oversaw each step of develop-
ment and was, effectively, the project manager.
In early March 2002, the future use of the facility came
into question. Through his chain of command, Miller
received instructions from Chief Jones to give a tour of the
PAL facility to the executive board of the Milwaukee
area Boys and Girls Club. While giving the tour, Miller
learned that Chief Jones had been discussing a possible
facilities merger between PAL and the Boys and Girls Club.
When Miller responded that this was the first he had heard
of the issue, he was told that “. . . if the Chief wants it, he
gets it.” Tr. Rec. R.50, Dep. Ex. 24, p.3. Within days of the
tour, Miller learned that a local Boys and Girls Club was
closing, and that it was considering the PAL facility as its
new home. On March 21, Jeff Snell of the Boys and Girls
Club of Greater Milwaukee wrote to Chief Jones outlining
the next steps to be taken in the merger.
On March 22, 2002, PAL Chairman Harris informed the
Board of the proposed merger. He also informed them that
the Boys and Girls Club was willing to pay for the costs of
the facility’s staffing and operation, but had not addressed
the outstanding expense of the building itself. At that
meeting, Captain Haynes, Miller’s commanding officer in
the CSD, and Miller provided Chairman Harris with a copy
of the letter from Snell.
Miller worked with Chairman Harris and other mem-
bers of the Board to review and respond to the proposed
merger. After reviewing PAL’s national bylaws, Miller and
Captain Haynes concluded that the proposal was contrary
to the organization’s mission. Miller openly opposed the
merger, reasoning that if the Boys and Girls Club operated
4 No. 05-1932
the facility there would be no role for MPD officer interac-
tion with the community, thus defeating the purpose of PAL
and the MPD’s policing benefit. Furthermore, he
was concerned that the Club offered no money to help cover
the facility’s construction debt and that any violation of
PAL’s national bylaws excluded the chapter from receiving
funding from the parent organization.
Chairman Harris wrote to Chief Jones, informing him
that no single member of the Board could unilaterally
bind the organization, and that the proposed merger
likely violated PAL national bylaws. Chief Jones was not
pleased with Harris’s letter. Shortly after they traded
correspondence, Chairman Harris and Director Zigman met
with Chief Jones in person and told him that they
and Miller opposed the merger.
On March 25 and 26, 2002, Chief Jones confronted his
staff regarding the PAL Board opposition to the merger. He
yelled at Captain Haynes for passing Snell’s letter on to
Chairman Harris and told both of them that he put them on
the PAL Board and could transfer them off just as easily.
Chief Jones then called a meeting with every officer on the
PAL Board to discuss the matter. During the meeting he
publicly reprimanded Haynes and Miller. Two days later,
Haynes was transferred to a position in the Criminal
Investigation Bureau; she had no prior experience with the
group.
Chief Jones attended the next three straight PAL Board
meetings, a first in his tenure with the organization. At the
April 9, meeting, Jones was described as being angry with
Chairman Harris’s letter and publicly doubted that PAL
had the capacity to manage the new facility. On April 19,
Jones informed the Board that he would not allocate MPD
officers to staff the new facility and instructed them to write
the Boys and Girls Club to request a plan for merger. He
also told the Board that Miller would be demoted from
No. 05-1932 5
Executive Director. He explained that having an MPD
employee in charge of PAL’s finances and employment
decisions was an unwanted liability for the City. Members
of the Board testified that this reversal came as a surprise
given that Miller had been in charge of PAL’s management
and finances for nearly eleven years and he had overseen
the new facility’s construction. At the third meeting, on May
3, PAL acquiesced to Jones’s demands and created a
committee to explore the merger.
By May 24, it was clear that the Boys and Girls Club
merger would not satisfy the entire PAL Board. Financially,
the Club’s proposal did not contribute to the costs of the
building debt. Furthermore, other members of the Board
greatly valued Miller’s opinion, given his involvement with
the project, and agreed that the merger would effectively
end PAL. That day, Miller and Director Zigman voted
against any continued dialogue with the Club. During
subsequent meetings in the summer of 2002, the Board
turned to Miller for advice, and he continued to oppose the
merger.
On July 8, Chief Jones implicitly threatened Miller. At
Jones’s direction, Deputy Chief Schunk reminded Miller
that the Chief was responsible for setting MPD policy
and how MPD officers interacted with PAL. Jones also
reassigned numerous MPD officers that worked with PAL
to the Police Training Academy, effectively cutting them off
from serving or communicating with the program. On
August 30, Miller was notified by the MPD Internal Affairs
Division that he was being investigated for “[f]ailing to treat
as confidential the business of the department[; s]peaking
on behalf of the department without authorization from the
Chief . . . [i]n reference to a conversation you allegedly had
with Bob Harris concerning the PAL program.” Tr. Rec. 50,
Dep. Ex. 7.
On September 27, 2002, Chief Jones informed the Board
that Miller was to be removed as Executive Director, and
6 No. 05-1932
demoted to Program Director. At the October 25 meeting,
Jones reemphasized his demand and told the Board that no
MPD officers would work with PAL until Miller’s job was
redefined. This withholding of services effectively brought
PAL’s operations to a halt. Some of the Board members
testified that they believed the demotion was in retaliation
for Miller’s opposition to the merger.
On November 4, the Board and Chief Jones were able
to agree on a job description for Miller’s new position.
Following this agreement, Jones wrote to Chairman
Harris on November 15 and informed him that while Miller
would fulfill his new duties, he would be unable to do
anything beyond these requirements. This secondary
limitation meant that Miller could no longer serve as a
voting member of the Board.
On January 6, 2003, Miller filed a citizen complaint
against Chief Jones with the City of Milwaukee Fire and
Police Commission, a civilian oversight body. In the com-
plaint, Miller alleged that Chief Jones, inter alia, coerced
the PAL Board, engaged in retaliatory acts, and unlawfully
interfered with the private business of another. Miller’s
complaint included the relevant Milwaukee Police Depart-
ment Rule and Regulation for each alleged violation. Tr.
Rec. 50, Dep. Ex. 24. Shortly thereafter, Miller also raised
questions about certain financial transactions implicating
PAL’s attorney, their construction contractor, and State
Senator George. Miller brought these matters to the
attention of Chairman Harris, who then raised them with
the Board.
In May 2003, Miller received conflicting instructions
regarding his CSD reporting duties from his supervisor,
Captain Debra Davidoski. (Davidoski had replaced Haynes
in April 2002, when Haynes was transferred to Criminal
Investigations.) On May 16, Davidoski complained to
Deputy Chief Schunk about Miller’s performance, and
No. 05-1932 7
within two weeks Miller was transferred to patrol duty. At
the time, Chief Jones explained the transfer to Miller’s new
commanding officer, stating he had overstepped his duties
with PAL. In the months following the transfer, however,
internal performance evaluations were submitted that
brought this comment, and thus the motivation for his
transfer, into serious doubt.
After Miller’s transfer, Sergeant Banks assumed the
Program Director’s role and did everything Miller had
previously done as Executive Director. This included hir-
ing and firing civilian employees, directing officers, han-
dling PAL finances, and attending and voting at Board
meetings. The curtailment of Miller’s involvement in PAL
also affected community interaction with the organization.
As Miller’s role was reduced, community and officer involve-
ment dropped off, and when he was transferred, key
financial backers stopped donating.
At the close of discovery, Chief Jones moved for summary
judgment. He argued there were no material facts
in dispute and that he was entitled to qualified immunity
as a matter of law. Judge Curran denied summary judg-
ment on the question of law and Jones now appeals pursu-
ant to 28 U.S.C. § 1291.
II. DISCUSSION
Summary judgment is appropriate only where the moving
party demonstrates “there is no genuine issue as to any
material fact and that [they are] entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c). When determining
whether a genuine issue of material fact exists, this Court
considers evidence in the light most favorable to the non-
moving party. See Matsushita Elec. Ind. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Bell v. Environmental
Protection Agency, 232 F.3d 546, 549 (7th Cir. 2000).
Because there is no dispute as to the material facts, we
8 No. 05-1932
focus below on the matters of law regarding the defendant’s
claim of qualified immunity.
Government officials enjoy qualified immunity, and are
thus shielded from civil liability, “ ‘as long as their ac-
tions could reasonably have been thought consistent
with the rights they are alleged to have violated.’ ” Schad v.
Jones, 415 F.3d 671, 673 (7th Cir. 2005) (citing Andersen v.
Creighton, 483 U.S. 635, 638 (1987)). To determine whether
an official is entitled to qualified immunity we look to two
issues. First, taken in a light most favorable to the party
asserting the injury, the facts must show the official
violated a constitutional right. Finsel v. Cruppenink, 326
F.3d 903, 906 (7th Cir. 2003) (citing Saucier v. Katz, 533
U.S. 194, 201-02 (2001)). Second, we look to see if the right
was “clearly established at the time of the alleged viola-
tion.” Id. (citing Doyle v. Camelot Care Centers, Inc., 305
F.3d 603 (7th Cir. 2002)). To be “clearly established,” the
right in question must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
This is not to say that an official action is protected by
qualified immunity unless the very action in question
has previously been held unlawful; but it is to say that
in the light of pre-existing law the unlawfulness must
be apparent.
Anderson, 483 U.S. at 640 (citation omitted). For a right
to be clearly established, however, we need not have a prior
case that is founded on materially similar facts; officials
may still be on notice in “novel factual circumstances.”
Finsel at 906 (citing Hope v. Pelzer, 536 U.S. 730, 741
(2002)).
The district court’s denial of defendant’s motion for
summary judgment on qualified immunity is immediately
appealable under 28 U.S.C. § 1291. See Delgado v. Jones,
No. 05-1932 9
282 F.3d 511, 514 (7th Cir. 2002). Our review of summary
judgment motions in this context is de novo. See Saffell v.
Crews, 183 F.3d 655, 657 (7th Cir. 1999).
A. Protected Speech.
Regarding the first prong of our qualified immunity
analysis, Miller claims that Jones transferred him from the
Community Services Division to patrol duty in retaliation
for speech that was protected by the First Amend-
ment pursuant to 42 U.S.C. § 1983. Government em-
ployees do not lose the right to comment as citizens on
matters of public concern as an incidence of their em-
ployment. City of San Diego v. Roe, 125 S.Ct. 521, 523
(2004). To establish a claim for retaliatory transfer, the
plaintiff must demonstrate that the statement at issue
was constitutionally protected, and was a substantial, or
motivating, factor in the transfer. Schad, 415 F.3d at 674
(citing Brooks v. Univ. of Wis. Bd. of Regents, 406 F.3d 476,
479 (7th Cir. 2005)). If these two elements are established,
the burden shifts to the government to prove that their
interest in efficient management outweighed the plain-
tiff’s interest in freedom of expression, or that they
would have taken the action regardless of the statement.
See Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002).
Jones argues that Miller’s claim fails because he did
not speak on a matter of public concern.
To be protected, employee speech must relate to a mat-
ter of “political, social, or other concern to the community. . .
.” Connick v. Myers, 461 U.S. 138, 146 (1983). Connick held
that when an “employee speaks not as a citizen upon
matters of public concern, but instead as an employee upon
matters only of personal interest . . . a federal court is not
the appropriate forum in which to review the wisdom of the
personnel decision taken by a public agency. . . .” Id. at 147.
To determine whether the employee’s speech was that of a
10 No. 05-1932
citizen on matters of public concern, we look to the content,
form, and context of the statement.1 Connick, 461 U.S. at
147-48; Schad, 415 F.3d at 674. Of these three, content is
the most important. Gustafson, 290 F.3d at 907. In evaluat-
ing these factors, we look to whether the government
employee sought to “bring to light actual or potential
wrongdoing or breach of public trust.” Connick, 461 U.S. at
148. Further, not all matters that transpire in a govern-
ment office are of public concern. Id. at 149. Instead, public
concern is the “subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the
public . . . .” San Diego, 125 S.Ct. at 525-26. Whether the
statement rises to the level of public concern is a question
of law. Connick, 461 U.S. at 148, n.7.
Taking the facts in a light most favorable to the plaintiffs,
as we must, the content of the speech at issue covers more
1
Defendant directs our attention to Judge O’Scannlain’s concur-
rence in Ceballos v. Garcetti, 361 F.3d 1168, 1185 (9th Cir. 2004),
cert. granted, 125 S.Ct. 1395, 126 S.Ct. 1294 (Feb. 17, 2006). In
Ceballos, the Ninth Circuit majority held that speech made by a
public employee was protected when it touched on a matter of
public concern. See id. In contrast, Judge O’Scannlain reasoned
that Connick’s primary focus was not on whether the employee’s
speech touched on a matter of public concern, but whether the
employee spoke as a citizen on a matter of public concern. Id. at
1187-88. We note that the most recent Supreme Court opinion to
consider the matter, City of San Diego v. Roe, focused on whether
the matter was one of “public concern,” not whether the em-
ployee’s speech was made as a citizen. 125 S.Ct. 521, 523-26
(2004). Our opinions, however, consider the question in full,
seeking to determine whether the employee spoke “as a citizen on
a matter of public concern” while in the employee context. See
Gonzalez v. City of Chicago, 239 F.3d 939, 941-42 (7th Cir. 2001);
Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2001); Schad, 415 F.3d
at 674. It is the examination of the content, form, and context of
the speech that determines this fact.
No. 05-1932 11
than a dispute over internal office affairs, and would be of
legitimate news interest. Matters of police protection and
public safety are generally topics of public concern. Schad,
415 F.3d at 675 (internal quotation omitted). Yet, we must
go beyond this blanket observation and review the precise
content of Miller’s speech. Id. Our cases have consistently
held that speech alleging government malfeasance ad-
dresses matters of public concern in its substance. Spiegla
v. Hull, 371 F.3d 928, 937 (7th Cir. 2004) (collecting cases).
But the communication and content must connect in a way
that creates a “communicative element” putting the listener
on notice that a matter of public concern is being raised.
Schad, 415 F.3d at 675. This connection was found lacking
in Schad, where the plaintiff police officer merely relayed a
suspect’s whereabouts without going through proper police
channels. See id. at 675-78. The connection, however, was
present in Spiegla, where the plaintiff correctional officer
questioned the suspicious conduct of her superiors who
appeared to be using a new search policy to facilitate
unlawful behavior. Id. at 675-77.
In this case, Miller opposed the proposed merger be-
cause it left the MPD officers without a facility to host PAL
activities, thus reducing the quality of community interac-
tion and opportunity to interact with city youth in an
indirect law enforcement capacity. Further, the Boys and
Girls Club offered only enough funding to cover their own
operating costs, but nothing to offset the debt incurred in
construction. This outcome likely violated PAL’s national
bylaws, cutting them off from receiving national funding,
and implicated the integrity of the fund-raising and con-
struction process that Miller had overseen in PAL’s name.
Chief Jones argues that there was nothing wrong in his
proposal of this merger. While this may be true, the pro-
posal is not the sole issue under discussion. There is also
the matter of the pressure Chief Jones brought to bear on
the PAL Board to ensure that the proposal was accepted.
12 No. 05-1932
Despite open concerns, Chief Jones pushed the merger
forward, leveraging his control over MPD personnel through
the threat and implementation of job transfers. By January
2003, Miller’s speech had expanded to include concerns
about Jones’s coercive behavior, and the effect it had on
PAL.
Miller also raised questions about the quality of work
being done on the new facility and certain financial transac-
tions that implicated PAL’s attorney and Wisconsin State
Senator George. These statements touch on the propriety of
fiscal management by government officials of a financially
independent community organization, and were not limited,
like Schad, to ordinary matters of purely internal operation.
These were no mere hypothetical concerns; Senator George
was later indicted on numerous counts, including charges
on this matter, and pleaded guilty to receiving kickbacks
(18 U.S.C. § 371, conspiracy to defraud the United States)
in another scheme involving PAL’s attorney. See United
States v. George, 403 F.3d 470 (7th Cir. 2005).2
We find it hard to imagine that the Milwaukee public
would not be concerned with the Chief of Police using his
official position to coerce a financially independent organi-
zation into a potentially ruinous merger. This concern
seems particularly acute when the Chief served on the
Board of Directors of both organizations. Or that the pub-
lic would not take an interest in their elected representa-
tives’ misappropriation of monies intended for their benefit.
Indeed, the Milwaukee Journal Sentinel eventually covered
portions of the scheme. Tr. Rec. 50, Ex. E.
The form of Miller’s speech also indicates that the matter
was one of public concern. After raising his concerns with
the PAL Board and MPD, he filed a citizen’s complaint with
2
The conviction is a matter of public record. See United States v.
George, No. 03-CR-259 (E.D. Wis. Aug. 11, 2004) (judgment).
No. 05-1932 13
the Fire and Police Commission. Short of racing to the
nearest television or radio station, we are hard-pressed to
find a more public form of speech than his reporting to this
civilian staffed body. This form of communication stands in
marked contrast to the internal memos circulated in
Connick or Gonzalez, or the procedural officer-to-officer call
placed in Schad. Miller’s actions explicitly and formally
sought to alert a greater audience of the possible harm at
issue. Regarding his statements on the financial irregulari-
ties and construction problems, this matter again mirrors
Spiegla. While Miller may not have been as public with
these concerns, he raised the issues on his own volition in
multiple venues, first with Chairman Harris and then again
with Deputy Chief Schunk. These attempts, when matched
with the inherent value of the content, are sufficient to
raise the underlying speech to the level of a public concern.
See Spiegla, 371 F.3d at 937-38.
Finally, we consider the context of the speech at issue,
evaluating Miller’s motive and circumstances. See Schad,
415 F.3d at 676 (citation omitted). While a statement
born of pure personal interest does not constitute a pub-
lic concern, a mere personal aspect of the speaker’s motiva-
tion will not defeat the entire speech. See Kokkinis v.
Ivkovich, 185 F.3d 840, 844 (7th Cir. 1999). Jones argues
that the plaintiff was motivated purely by personal concern
in that he was only interested in preserving his autonomy
and job at PAL. While the scope of Miller’s authority at PAL
had been curtailed at Jones’s demand during the months
leading up to his complaint, Miller continued to work with
the organization as the Program Director and maintained
his job with the MPD Community Services Division. Jones
has failed to offer any evidence indicating that Miller’s
status with the former was directly linked to his assignment
with the latter. Moreover, Miller’s repeated statements to
the Board addressed the negative impact of the merger on
the opportunity for MPD officers to interact with the
community and that the Boys and Girls Club offered no
14 No. 05-1932
financial support for the outstanding debt on the newly
constructed facility. Being financially independent, PAL
would retain the liability for this debt, but have no facility
to show for it or to aid in subsequent fund-raising. Simi-
larly, his complaint with the Commission alleged Chief
Jones violated MPD Rules and Regulations in his attempts
to govern the decision of the PAL Board. This stands in
opposition to a situation like that in Kokkinis, where the
plaintiff officer used an ancillary matter of public concern
as an opportunity to voice his purely personal grievances
with his employer. 185 F.3d at 844.
Regarding the circumstances of his speech, Jones
claims that Miller’s statements were not protected be-
cause they were within the scope of his regular job duties.
As initially noted in Gonzalez, and clarified in Delgado,
statements made in the course of the “routine discharge
of assigned functions, where there is no suggestion of public
motivation” do not indicate that the employee set out to
speak as a citizen on matters of public concern. See Spiegla,
371 F.3d at 939 (emphasis added); Gonzalez, 239 F.3d at
941; Delgado, 282 F.3d at 519. Where, as is the case here,
the statement at issue arose from a discretionary act
involving independent judgment and action, the speech is
more likely to suggest the employee spoke as a citizen on a
matter of public concern. See Delgado, 282 F.3d at 519.
Miller’s opposition to the proposed merger may hardly be
said to be a routine discharge of his duties as an officer with
the MPD Community Services Division. His judgment on
the matter followed noted consideration of PAL’s national
bylaws and was informed by his understanding and experi-
ence of the organization’s structure, operation, and financial
obligations. While he may have been required to undertake
this review, he was not required to recommend a particular
outcome. This stands in marked contrast to our finding in
Gonzalez where the plaintiff could have been punished for
not making the statements at issue there. 239 F.3d at 941-
No. 05-1932 15
42. Nothing before us indicates that Miller may have been
punished for not opposing the merger. In fact, Miller was
investigated by the MPD Internal Affairs Division for
discussing the matter with Chairman Harris and the PAL
board, an action which was part of his duties as the MPD
liaison to the organization.
Additionally, Miller’s January 2003 statements on the
financial irregularities and contractor performance put both
the MPD and the PAL Board on notice regarding missing
funds and possible breach of contract. While monitoring
these issues was part of his prior duties as Executive
Director and Treasurer, he had been demoted to Program
Director and restricted from holding “any other positions”
per Chief Jones’s November 15, 2002, letter to the Board.
Tr. Rec. 50, Dep. Ex. 17. Managing construction and
auditing PAL’s finances are not listed in the Program
Director’s job description. Id. At most, Miller was responsi-
ble for preparing and monitoring the budget with the
Managing Director and reporting to the Board Finance
Committee. Given this precise and newly limited job
description, we cannot find that Miller’s subsequent and
consistent reporting on these issues was wholly within the
scope of his duties. The present scenario is similar to that
of Spiegla, where the plaintiff was responsible for imple-
menting prison security policies, but took it upon herself to
question her superiors’ policy change that may have
decreased security. See Spiegla, 371 F.3d at 939. We held
this questioning was not part of her core functions and was
akin to a citizen raising a matter of public concern. Id.
Similarly, where Miller was instructed to act through the
Managing Director and “[m]aintain confidentiality of all
information” he chose instead to bring his concerns to his
supervisors in both PAL and the MPD. Tr. Rec. 50, Dep. Ex.
17, p.2. To claim this speech was entirely within the scope
of his job duties and not a matter of public concern “sweeps
much too broadly.” Spiegla, 371 F.3d at 939.
16 No. 05-1932
Lastly, Jones argues that Miller’s speech did not touch on
matters of public concern because PAL was not part of the
core duties of the Milwaukee Police Department. In support
of this argument he cites Gardetto v. Mason, 100 F.3d 803
(10th Cir. 1996), where our sister court held that speech
protesting the reorganization of an adult reeducation
center, one that was wholly funded by the state college
employer-defendant, was not a matter of public concern
because the decision did not affect the “primary mission of
the college.” Id. at 815. First, we note that this focus on a
government employer’s primary mission plays no dispositive
role in our public concern jurisprudence. Second, Gardetto
involved the reorganization of an entity wholly funded by
the defendant-employer. Here, Chief Jones used his control
over governmental employees to affect the management of
an independently financed organization in favor of another
organization with which he also served, in possible contra-
vention of Milwaukee Police Department Rules and Regula-
tions. When a government official acts, he has a responsibil-
ity to obey the rules that bind him. The potential breach of
these regulations is itself a matter of public concern.
Additionally, PAL’s purpose was to create a parallel
connection between the MPD and the community to aid and
support the Department’s everyday safety and outreach
operations. Sound connections to the community allow for
effective policing, which is the goal, and concern, of the
MPD. We affirm the decision of the district court on this
issue.
B. Prior Decisions on Matters of Public Concern.
While we find that Miller’s speech rises to the level of
public concern, Chief Jones’s actions would still be protected
were this constitutional violation not “clearly established”
at the time of the alleged conduct. Finsel, 326 F.3d at 906
(citation omitted). It is well established by the Supreme
No. 05-1932 17
Court and this circuit that a public employer may not
retaliate against an employee who exercises his First
Amendment speech rights. See Connick, 461 U.S. 138. This
prohibition extends to retaliatory transfers to a less desired
position. see Delgado, 282 F.3d 511; McGill v. Bd. of Educ.
of Pekin Elem. Sch. Dist. 108, 602 F.2d 774 (7th Cir. 1979).
Defendant argues that rights in this area are not clearly
established, and that the Supreme Court’s decision in City
of San Diego v. Roe proclaims as much. In San Diego, the
Supreme Court wrote that “[a]lthough the boundaries of the
public concern test are not well-defined, Connick provides
some guidance . . . [i]t directs courts to examine the ‘con-
tent, form, and context of a given statement, as revealed by
the whole record. . . .’ ” 125 S.Ct. at 525. It is this three-part
examination that our cases have applied since Connick was
handed down. See, e.g., Yoggerst v. Hedges, 739 F.2d 293
(7th Cir. 1984). To leap from the simple observation that
the boundaries of what constitutes public concern require
some searching, to the argument that after San Diego “no
reasonable law enforcement official” may be expected to
determine what is appropriate behavior in this realm, is a
step too far. Nothing in San Diego reformed the core of our
jurisprudence on the matter.
Nor did San Diego strike down Delgado, where we held
that employee speech on a matter of public concern was
protected under the First Amendment, and therefore
protected against retaliatory transfers, when it grew out of
some discretionary act. See 282 F.3d at 516-21. For exam-
ples of similar factual scenarios, Chief Jones may have
turned to our holding in Campbell v. Touse, where we held
that a police officer’s speech criticizing the management of
a community-oriented policing program was a matter of
public concern. See 99 F.3d 820 (7th Cir. 1996). Addition-
ally, Jones may have turned to Knapp v. Whitaker, wherein
we held a public school teacher had spoken on a matter of
public concern when protesting an inequitable reimburse-
18 No. 05-1932
ment scheme for expenses incurred in coaching students.
See 757 F.2d 827 (7th Cir. 1985). The core of the public
concern in Knapp was the misuse of funds intended for the
school’s athletic program; a secondary mission of the school
system, to be sure. Id. at 840-41. Finally, should former
Chief of Police Jones have needed personal notice that the
retaliatory transfer of public employees for speech protected
by the First Amendment is subject to suit under § 1983, he
need only look to our holding in Octavio Delgado v. Police
Chief Arthur Jones and Deputy Chief Monica Ray, 282 F.3d
511, Mar. 8, 2002, decided against the appellant himself in
the same month during which the merger was first pro-
posed.
III. CONCLUSION
For the foregoing reasons we AFFIRM the judgment of
the district court.
No. 05-1932 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-17-06 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2998474/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1287
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARL A. GEE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-259—Rudolph T. Randa, Chief Judge.
____________
ARGUED DECEMBER 7, 2005—DECIDED DECEMBER 23, 2005
____________
Before EASTERBROOK, MANION, and SYKES, Circuit
Judges.
EASTERBROOK, Circuit Judge. Opportunities Industrial-
ization Center of Greater Milwaukee (OIC)—an organiza-
tion affiliated with the self-help movement founded in 1964
by Rev. Leon H. Sullivan in Philadelphia—holds contracts
to administer Wisconsin’s welfare-reform program, popu-
larly known as W-2 (for “Wisconsin Works”). These con-
tracts bring in about $40 million annually, approximately
two-thirds of OIC’s revenue. A jury concluded in this
criminal prosecution that Carl Gee had conspired with Gary
George and Mark Sostarich to obtain these contracts
corruptly. Gee caused OIC to pay kickbacks to George, who
at the time was the majority leader of Wisconsin’s state
2 No. 05-1287
senate. The kickbacks violated 18 U.S.C. §666 because OIC
receives more than $10,000 annually in federal grants (W-2
is itself about 80% federal money), and the agreement
among Gee, George, and Sostarich to violate §666 in turn
violated 18 U.S.C. §371, the general conspiracy statute. Gee
has been sentenced to 24 months’ imprisonment and
ordered to pay restitution of some $473,000. George pleaded
guilty to the §371 charge, and we have affirmed his convic-
tion and sentence of 48 months’ imprisonment, though we
directed the district court to revisit George’s obligation to
make restitution. See United States v. George, 403 F.3d 470
(7th Cir. 2005). Sostarich pleaded guilty to a different con-
spiracy with George, agreed to cooperate (he testified
against Gee), and was sentenced to make restitution, serve
home confinement but no imprisonment, and perform
community service; he did not appeal.
The evidence permitted a jury to find that Gee caused
OIC to pay George for his assistance in directing the
welfare-program-management contracts to OIC and pre-
venting the state from auditing OIC’s performance. Money
passed from OIC to George in two ways. First, OIC gave
Sostarich a monthly retainer, 80% of which he made over to
George (often after one of George’s aides picked up the
check from OIC, delivered it to Sostarich, and waited while
he made out a personal check to George for his cut). George
never performed any legal work in exchange for this money;
neither OIC nor Sostarich filed tax documents showing how
the monthly fee had been divvied up. Second, OIC “in-
vested” $200,000 of an affiliate’s money in a corporation,
controlled by George’s family, whose sole asset was a TV
station in the Virgin Islands. Although Gee told the affiliate
that it would receive 20% of the corporation’s stock, no
certificates were issued and the “investment” never ap-
peared on the corporation’s books. The money seems to have
gone straight to George’s pocket, with OIC receiving his
goodwill and political patronage rather than an equity
interest in a business.
No. 05-1287 3
Gee contends that this evidence does not support the
conviction. He offers three principal arguments. One is that
the $200,000 came from OIC’s profits and bonuses
for administering the W-2 program rather than from
any federal grant. This argument supposes that §666
reaches only funds that can be traced directly to the grant.
The Supreme Court rejected an identical argument in Sabri
v. United States, 541 U.S. 600 (2004), as we had done
earlier in United States v. Grossi, 143 F.3d 348 (7th Cir.
1998). Gee never mentions either of these decisions.
Another argument is that the evidence does not estab-
lish any specific act that George took in response to any
specific payment. Gee contends that the absence of a quid
pro quo prevents conviction. Yet the statute does not
require any such link. A quid pro quo of money for a specific
legislative act is sufficient to violate the statute, but it is
not necessary. It is enough if someone “corruptly solicits or
demands for the benefit of any person, or accepts or agrees
to accept, anything of value from any person, intending to
be influenced or rewarded in connection with any business,
transaction, or series of transactions of such organization,
government, or agency involving any thing of value of
$5,000 or more”. 18 U.S.C. §666(a)(1)(B). A sensible jury
could conclude that George had this corrupt intent, and that
Gee and Sostarich conspired with George to carry out a plan
in which federal money in OIC’s hands was exchanged for
George’s influence. See United States v. Agostino, 132 F.3d
1183, 1190 (7th Cir. 1997).
Finally, Gee observes that George was in the legislative
rather than the executive branch of Wisconsin’s govern-
ment, which awarded W-2 contracts, and contends that
he therefore “had no power or authority to influence; he did
nothing to ‘merit’ a reward.” This confuses influence with
power to act unilaterally. A legislator with the ability to
control the senate’s agenda can throw a monkey wrench
into a Governor’s program, and this power confers influence
4 No. 05-1287
over executive decisions even when the legislature does not
pass any particular law. The absence of new laws may show
the successful application of influence. One does not need to
live in Chicago to know that a job description is not a
complete measure of clout. The evidence permitted a
reasonable jury to find that George had plenty of clout and
used it to OIC’s benefit, for which he was well paid.
Gee does not contest the length of his prison sentence but
does complain about the restitution. The principal problem
that led to the remand in George was our inability to
discern what the award represents. Here, as in George, the
district judge failed to explain his decision; but this time it
is easy to see where the numbers come from. The award
equals $200,000 (the “investment” in George’s business)
plus 80% of Sostarich’s retainer. That’s exactly what the
victim lost and thus is an appropriate award under 18
U.S.C. §3663A. Although George notes that the victim in a
prosecution under §371 is the United States, OIC is a proxy
for the federal interest because it was a recipient of federal
funds that were designated for a particular use. Restoring
this money to OIC will enable it to carry out the federal and
state welfare programs with the full resources that the
contracts provided originally. Sostarich actually provided
legal services, but he was willing to do this for only 20% of
the retainer. Had funds not been diverted to George, OIC
could have saved the difference. It is entitled to restitution
of that difference, and its entitlement to a return of the
$200,000 is straightforward.
AFFIRMED
No. 05-1287 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-23-05 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000694/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 1, 2007
Decided July 13, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3433 Petition for Review of an Order
of the Board of Immigration Appeals
ALVARO H. LEYVA,
Petitioner, No. A97-102-354
v.
ALBERTO R. GONZALES, United
States Attorney General,
Respondent.
ORDER
Alvaro Hernando Leyva, a former civilian accountant for the Colombian
Navy, and his wife and three children seek review of the final decision of the Board
of Immigration Appeals that denied them asylum and relief under the Convention
Against Torture. We deny the petition for review because substantial evidence does
not compel a finding that Leyva suffered persecution on account of political opinion
or a sufficient likelihood of torture.
No. 06-3433 Page 2
I.
Alvaro Hernando Leyva is a citizen of Colombia, as are his wife, Eda
Jannette, and their three children. Leyva began working for the Colombian Navy in
1991 as a civilian accountant. His troubles began in 1998, when he discovered
accounting irregularities that benefitted Captain German Sahid-Castano. Sahid
threatened him not to report the irregularities, stating that “the eagles kill the
doves.” Leyva interpreted this remark as a threat against his reporting the
irregularities and a reference to his being a “a Christian or a follower of [the]
Mennonite way.” In spite of the threat, Leyva reported the irregularities within the
department to the auditors. The irregularities were leaked to the press, and Sahid
subsequently lost his position with the Navy after the corruption became more
widely exposed. Leyva received a transfer to a different department.
Leyva later was stationed on a vessel, the Gloria, for six months. Before
embarking, several superior naval officers threatened Leyva in late 2000 about
reporting any irregularities. Instead, they told him to be prepared to “clean things
up if necessary” with the accounting while aboard. Once aboard, Leyva discovered
another accounting problem, in which Lieutenant Martin-Orduz misused funds.
Orduz threatened Leyva about the discovery, locked him in his office for an
unknown duration on one day, and accused him of working for counter-intelligence.
When Leyva reported the incident to the captain, the captain instructed Leyva not
to get involved. Leyva did not speak to the press about any of the corruption.
Leyva’s wife also received threats stemming from her husband’s discovery
and reporting of the accounting irregularities, including written cards suggesting
her husband’s death while he was aboard the Gloria, threatening telephone calls,
strangers approaching her at work and around the family home, and strangers
asking the children and those living in their neighborhood about the family’s
schedules and details. Leyva also continued to receive various verbal threats from
superiors.
The most serious incident occurred on February 22, 2002, when two armed
men in a vehicle approached Leyva while he was waiting at a bus stop and ordered
him into their vehicle. They placed a bag over his head, beat him with their fists
and the butts of their guns, and burned his wrists with an unidentified chemical.
The men warned him not to discuss the corruption further and threatened him and
his family. Leyva believed that the men’s accents indicated they were from the
coast, and therefore members of a paramilitary force, which is primarily recruited
from the coast. Leyva claims that his superior officers had connections with the
paramilitary forces and sent the paramilitary to threaten him.
No. 06-3433 Page 3
After the detention, Leyva reported the incident to his superiors. Two of his
superiors advised leaving the country for a time, and Leyva took a leave of absence
from his position. He arrived in the United States on April 17, 2002. His wife and
children joined him less than two months later. Notably, he only planned to visit,
but applied for asylum on April 10, 2003, based on the encouragement of friends.
After a hearing, the Immigration Judge (IJ) denied Leyva’s request for
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). The Board of Immigration Appeals (BIA) affirmed the IJ’s decision,
supplementing it with its own reasoning. Leyva now petitions this court to review
the denial of asylum and relief under the CAT, but does not seek withholding of
removal.
II.
We review the denial of asylum under “the substantial evidence standard.”
Feto v. Gonzales, 433 F.3d 907, 910-11 (7th Cir. 2006) (citation omitted). Under this
deferential standard, “we require only that the decision be supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Gjerazi v.
Gonzales, 435 F.3d 800, 807 (7th Cir. 2006) (citation and internal quotation
omitted). This standard is in accord with the statutory requirement that “the
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). If, as in
this case, “the BIA adopts the IJ’s decision while supplementing the decision with
its own reasoning, the IJ’s decision, as supplemented by the BIA’s decision, becomes
the basis for review.” Gjerazi, 435 F.3d at 807 (citation omitted).
We begin with Leyva’s claim for asylum. Asylum may be granted “to aliens
who apply for asylum in a timely fashion, meet certain procedural requirements,
and qualify as refugees.” Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005)
(citing 8 U.S.C. § 1158(b)(1)(A)). “A ‘refugee’ is defined as a person who is unable or
unwilling to return to the country of her nationality because of ‘persecution or a
well-founded fear of future persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion . . . .’” Id. (quoting 8
U.S.C. § 1101(a)(42)(A)). In this case, Leyva claims persecution based on political
opinion. Leyva bears the burden of demonstrating that he has suffered past
persecution or a well-founded fear of future persecution on account of his political
opinion. Id. (citing 8 C.F.R. § 208.13(a)).
Although the statute does not define “persecution,” we have previously
explained that persecution “may include detention, arrest, interrogation,
No. 06-3433 Page 4
prosecution, imprisonment, illegal searches, confiscation of property, surveillance,
beatings, [] torture, [or] behavior that threatens the same . . . .” Gjerazi, 435 F.3d at
808 (citation and internal quotations omitted). Persecution “must rise above the
level of ‘mere harassment’ and must result from more than unpleasant or even
dangerous conditions in [the] home country.” Nakibuka v. Gonzales, 421 F.3d 473,
476 (7th Cir. 2005) (citation omitted). We previously analyzed a detention lasting
three days, in which the petitioner was denied food and his face beaten. Dandan v.
Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003). We concluded:
when we look at the evidence of the severity of Dandan’s single detention, we
cannot say that we are compelled to find that he was subject to past
persecution. This is a high standard and one that is properly difficult to meet
without powerful and moving evidence. The issue is difficult to resolve, and
we find it quite serious that Dandan was detained, beaten and deprived of
food for three days. But the sort of specific information that would compel a
finding of persecution has not been presented. We know only that the
detention was without food, was three days long and that he was beaten to
the extent that his face became “swollen.” While it is distasteful to have to
quantify suffering for the purposes of determining asylum eligibility, that is
our task. A standard of review that requires our being compelled to reach a
conclusion contrary to the BIA means that we necessarily search for specifics,
not generalities. Significant in our analysis is the obvious fact that knowledge
of the specific circumstances of Dandan’s detention was entirely within his
control. Dandan’s case for past persecution, with all its procedural
ramifications that we have noted, rests wholly upon the specific
circumstances of a single aggravated detention–circumstances he alone could
have, but failed to provide. Because Dandan bears the burden of
demonstrating that his detention rises to the level of persecution, we must
hold against him the failure to provide sufficient specifics to compel our
assent. A three-day interrogation resulting in a “swollen” face does not
compel us to conclude that the BIA was incorrect.
Id. (emphasis omitted). In this case, Leyva claims a beating lasting one day and
resulting in burns on his wrists. Even when combined with the verbal threats to
Leyva and his family over time and the brief detention on the ship, the treatment
does not rise above the level of harassment. In Dandan, the applicant similarly
faced additional threats to his family and harm when “the family’s house was
shelled and partially destroyed, and that as a result, he and his family went from
shelter to shelter” for a two month period. Id. at 571. As in Dandan, we are not
compelled by the evidence to conclude that the BIA erred in finding that Leyva fails
to demonstrate that he suffered persecution.
No. 06-3433 Page 5
Since he fails to demonstrate past persecution, Leyva is not entitled to a
rebuttable presumption of future persecution. See Gjerazi, 435 F.3d at 808 (“[a]n
applicant who successfully proves past persecution is presumed to have a well-
founded fear of future persecution—a presumption that the government can rebut
by demonstrating a change in the conditions in the applicant’s homeland.” (citations
omitted)). Nonetheless, Leyva may “demonstrate a well-founded fear of future
persecution if his fear is subjectively genuine and objectively reasonable in light of
credible evidence.” Id. (citations omitted). Even assuming, as the BIA did, that
Leyva subjectively fears future persecution, his fear is not objectively reasonable in
light of the evidence. As the BIA explained, “given the passage of time since
[Leyva’s] last encounter with paramilitaries, and insofar as he is no longer an
employee of the finance department of the Colombian Navy, he is not in a position
that would cause him to be targeted for any purpose by these same, or any other
paramilitaries.” Leyva bears the burden to demonstrate that his fear is objectively
reasonable. 8 U.S.C. § 1158(b)(1)(B). Since neither the testimony nor the
documentary evidence compels a finding to the contrary, we find no error in the
BIA’s conclusion that Leyva fails to demonstrate an objectively reasonable fear of
future persecution.
Furthermore, even if the acts Leyva and his family suffered amounted to past
persecution or a well-founded fear of future persecution, Leyva fails to demonstrate
that the persecution occurred “on account of” a political opinion. We have stated
that “[a] political opinion is one that is expressed through political activities or
through some sort of speech in the political arena.” Li v. Gonzales, 416 F.3d 681,
685 (7th Cir. 2005) (citations omitted). For example, “[s]omeone who campaigns
against the government and urges the voters to throw the rascals out is engaged in
political speech,” as is “someone who writes an op-ed piece or otherwise urges the
people to rid themselves of corrupt officials.” Musabelliu v. Gonzalez, 442 F.3d 991,
995 (7th Cir. 2006). Leyva did not engage in any of these classic political activities.
This does not end our analysis, however, because this court has
acknowledged that “[w]histle-blowing about public corruption can be a form of
political opinion.” Id. (citations omitted). Leyva implies that he was a whistle-
blower who tried to expose improper uses of government funds. His claim falls
short because in his investigation into corruption he “did not take [his evidence of
corruption] to the public in quest of a political decision.” Id. at 996 (citations
omitted). Instead, Leyva pursued an investigation within the chain of command in
the Navy by reporting his findings to auditors and to his superiors. See id. (noting
that the alien “made his views known within the chain of command, as part of his
official duties,” which was insufficient to constitute an expression of political
opinion). Additionally, we previously noted that “[i]t is an open question even in the
No. 06-3433 Page 6
United States whether the first amendment gives public officials a right to be free
of retaliation when they speak within an agency’s hierarchy on an issue of public
concern, as part of their duties.” Id. (noting that the Supreme Court had granted
certiorari in Garcetti v. Ceballos, 543 U.S. 1186 (2005), to address this issue).
Subsequently, the Supreme Court held that “when public employees make
statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti v. Ceballos, 126 S. Ct. 1951,
1960 (2006). As we previously noted, the holding in Garcetti “reinforces the
characterization of [Leyva’s] conduct within his employment [with the government]
as non-political speech; it would be implausible to offer broader protection for
speech to an alien under the immigration laws than is provided to citizens under
the First Amendment.” Pavlyk v. Gonzales, 469 F.3d 1082, 1089 (7th Cir. 2006). As
a factual matter, Leyva has not demonstrated that the incidents he suffered were
on account of political opinion. Musabelliu, 442 F.3d at 996. Accordingly, he fails to
qualify as a refugee entitled to asylum. Because his wife’s and children’s claims are
derivative of his own, they also do not qualify for asylum. Furthermore, since Leyva
and his family are not entitled to asylum, even if they had sought withholding of
removal, it would not be available to them. Jamal-Daoud v. Gonzales, 405 F.3d
918, 925 (7th Cir. 2005) (“Because the standard of proof for withholding of removal
is higher than that needed to establish eligibility for asylum, the failure to sustain
the burden of proof for asylum necessarily precludes eligibility for withholding of
removal.” (citation omitted)).
Leyva next claims that he and his family are entitled to protection under the
Convention Against Torture (CAT). We again review the denial of relief under the
substantial evidence standard, analyzing whether “the record compels a contrary
result.” Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006) (internal quotation
and citations omitted). Relief under the CAT does not have to be on account of
political opinion to qualify for relief. Instead, to obtain relief under CAT, Leyva
must show that “it is more likely than not that if removed to [Colombia], he will be
subject to torture.” Boyanivskyy v. Gonzales, 450 F.3d 286, 292 n.3 (7th Cir. 2006)
(citing 8 C.F.R. § 208.16(c)(2)). The regulations define torture as:
[A]ny act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or
her or a third person information or a confession, punishing him or her for an
act he or she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering
No. 06-3433 Page 7
is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1). Showing a likelihood of torture is a “more stringent”
standard than is required to demonstrate persecution required to qualify for
asylum. Gomes v. Gonzales, 473 F.3d 746, 757 (7th Cir. 2007) (citation omitted).
Since, as discussed above, Leyva “fails to meet the more lenient burden of proof for
asylum, he cannot establish that he is . . . eligible for protection under the
Convention Against Torture.” Hussain v. Gonzales, 424 F.3d 622, 630 (7th Cir.
2005) (citations omitted).
III.
Because the evidence does not compel a finding of past persecution or a well-
founded fear of future persecution and because, even if the incidents had risen to
the level of persecution they were not on account of political opinion, Leyva is not
entitled to asylum. Similarly, because Leyva fails to demonstrate a likelihood of
torture, he is not entitled to relief under the Convention Against Torture. His
family’s derivative petitions likewise fail. Accordingly, we DENY the petition for
review. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4240640/ | Fourth Court of Appeals
San Antonio, Texas
January 23, 2018
No. 04-17-00581-CV
IN THE MATTER OF THE GUARDIANSHIP OF MARY JANE HARGROVE,
From the County Court at Law, Val Verde County, Texas
Trial Court No. 17-002-G
Honorable Sid L. Harle, Judge Presiding
ORDER
After court reporter Patricia Abeyta notified this court that she broke her right humerus
and was unable to complete the record, we approved replacement reporter Annette Escobar’s
motion for an extension of time to file the record until January 16, 2017. Three days after the
extended due date, court reporter Annette Escobar filed her second request for an extension of
time to file the record, with a requested due date of February 19, 2018.
The request is GRANTED IN PART. We ORDER court reporter Annette Escobar to file
the reporter’s record with this court by February 15, 2018. See TEX. R. APP. P. 35.3(c) (limiting
an extension in an ordinary appeal to thirty days).
If the court reporter does not timely file the record as ordered, any further request for an
extension of time must be accompanied by a written, signed status report. The report must
describe the transcript by day with the date, description, page counts, and remarks for each day.
The page counts must include the total number of pages, the number of pages edited, proofread,
and formatted into the required electronic form (including bookmarks). The report may describe
any unusual aspects of the record. The report must describe any problems the court reporter
reasonably believes may delay the completion of the record beyond the requested date. A
preferred form for the status report, with an accompanying example, is attached to this order.
We caution the court reporter that any further request for an extension of time to file the
record will be disfavored.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 23rd day of January, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court | 01-03-2023 | 01-31-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3525812/ | The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All of the judges concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3848023/ | Argued January 15, 1925.
The court below confirmed the report of an auditor which awarded the entire estate of a deceased unmarried woman to her only child, an illegitimate son, born after the date of his mother's will and not provided for therein: this appeal is by the residuary legatee, to whom testatrix left the bulk of her property, in the language of *Page 399
the will, "without any condition, restriction or limitation whatsoever."
The will was executed June 12, 1920; the son was born August 21, 1920; and the testatrix died August 25, 1920. The child, named Alexander, still lives, and his guardian claims under sec. 21 of the Wills Act of June 7, 1917, P. L. 403, 410, asserting an intestacy as to his ward, owing to the fact that he is not provided for in the will of his mother, and contending that, since the intestate law makes this boy the sole heir of decedent, he is entitled to her whole estate.
The section in question provides: "When any person, male or female, shall make a last will and testament, and afterward . . . . . . shall have a child or children not provided for insuch will, and shall die, leaving . . . . . . such child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the surviving . . . . . . child or children born after the making of the will, shall be deemed and construed to die intestate; and such child or children shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if such person had actually died without any will."
Appellant, — despite the above-quoted language of the absolute and unrestricted devise to him, and admitting the absence of any reference to appellee's ward, or of provisions for his benefit, in the will, — claimed that a secret parol trust existed, through an understanding between him, the residuary legatee, and decedent, by which a substantial part of the estate was to be paid to the child, and that the circumstances of the case made this trust tantamount to an express provision for the latter within the meaning of section 21 of the Wills Act; and therefore no intestacy existed as to him. Appellant offered to prove this alleged trust by conversations between himself and decedent; by her declarations to other persons named by him as beneficiaries under the *Page 400
alleged trust; and by an unsigned memorandum in writing entitled "Distribution of Estate," which was found with the will, and which contained the initials of the residuary legatee, those of other personal friends of decedent, and of her unborn child (according to the name which the testimony shows she had intended it to bear), with amounts opposite the respective initials. To bring this memorandum into the case, appellant testified that, in their conversations, decedent had stated she would give him written instructions for the distribution of her estate; but that, as a matter of fact, she never gave or sent any such instructions to him and he did not receive the memorandum produced before the auditor until after the death of decedent.
Appellant further claimed in the court below, and contends here, that, because of illegitimacy, the boy Alexander is not within the purview of section 21 of the Wills Act or entitled to its protection. In support of this contention, which we shall dispose of first, he takes the position that, "in the absence of some qualifying expression," the word "child" in legislative enactments, as in legal parlance, generally means "only and exclusively a legitimate child" (citing Overseers v. Overseers, 176 Pa. 116, 121, and other cases), and the present child, being illegitimate, does not come within the protection of the statute. He says, further, that the language employed in section 21 of the Wills Act "negatives the thought that an illegitimate child was in contemplation of the legislature," because the provision in question uses the words "although such child or children be born after the death of their father," contending that this wording shows the act was to apply only to legitimate children, for, "under both the common law and the statute law, an illegitimate child has no father." We think it is quite clear, however, that reference to "their father," in section 21 of the Wills Act, and in prior legislation of similar import (see Walker v. Hall, 34 Pa. 483, for history of the earlier acts), was placed *Page 401
there for the mere purpose of showing the lawmakers intended the provision for after-born children should apply to posthumous children; and, since in general contemplation children are never born after the death of their mother, the legislature evidently thought it unnecessary to mention such a contingency. The words "their father" cannot warrantably be given the significance which appellant claims for them; and in considering the contention that the word "child" always means one born in lawful wedlock and not an illegitimate, we must keep in mind the fact that at the time of the adoption of the Wills Act there was upon the statute books of Pennsylvania the Act of July 10, 1901, P. L. 639, which by section 1 provides in express terms that "illegitimate children shall take and be known by the name of their mother, and the common-law doctrine of nullius filius shall not apply as between the mother and her illegitimate child or children, but the mother and her heirs and her illegitimate child and its heirs shall . . . . . . enjoy all the rights and privileges, one to the other, in the same manner and to the same extent as if the said child or children had been born in lawful wedlock." This section was not repealed by the Wills Act of 1917, and is still in force. Subsequent sections, namely 2, 3 and 4, though formally repealed, were incorporated in the Intestate Act of 1917 as sections 15a, 15b and 15c (P. L. 429, 439); of these, section 4 particularly states the intent of the legislature (see Com. v. Mackey, 222 Pa. 613, 616) "to legitimate an illegitimate child as to its mother and her heirs," and the effect of the act clearly was to place such a child, so far as its mother and her estate are concerned, in the position of a legitimate. All subsequent legislation, including the Wills Act of 1917, must be understood accordingly, and, there being no express or implied exclusion of illegitimate children from the benefits of the last mentioned statute, it must be construed, in the light of the Act of 1901, as though illegitimates were expressly included as entitled *Page 402
to the benefits of section 21. Moreover, when reading cases involving the construction of wills and the rights of illegitimate children thereunder, decided prior to the Act of 1901, its absence at that time must be kept in mind.
Appellant's attempt to place an illegitimate child in the same category with an adopted child so far as the application of section 21 of the Wills Act is concerned, and thereby to exclude the former from its protection (Boyd's Est., 270 Pa. 504), lacks force, because the provision in question, in its reference to after-born children, applies to physical birth alone: see McCulloch's App., 113 Pa. 247, 255. An adoption was not considered in law as tantamount to physical birth (see Boyd's Est., supra, 507), for the purpose of satisfying the requirements of section 21 of the Wills Act in that regard, until the recent Act of May 20, 1921, P. L. 937, which amended the section in question by incorporating, after the phrase "child or children," the words "either by birth or by adoption." The prior legislation (Act of June 1, 1911, P. L. 539, and Act of May 28, 1915, P. L. 580), giving certain rights of inheritance to adopted persons as if "born the lawful child of the adopting parents," and "as fully as if . . . . . . born a lawful child," could not make an adopted child one physically born to the parent as contemplated by the language of section 21 of the Wills Act, and did not undertake to place it in that category for all purposes, as the Act of 1901 undertook to place illegitimate children of a deceased testatrix in the category of legitimates. The court below correctly determined that the illegitimacy of the child here involved did not deprive him of the protection of the Wills Act.
As to appellant's other major contention, the court below was right in deciding that the testamentary provision for an after-born child required by section 21 of the Wills Act, whether by trust or direct provision, must appear in the will itself to prevent such a child from *Page 403
claiming an intestacy. The statute requires this construction, for it says, "When any person . . . . . . shall make a last will . . . . . . and afterwards shall . . . . . . have a child . . . . . . not provided for in such will . . . . . . every such person, so far as shall regard the surviving . . . . . . child . . . . . . born after the making of the will, shall be deemed and construed to die intestate."
We base the above conclusion as to the meaning of section 21 of the Wills Act on the plain words of the statute itself, after reading and considering the many cases cited by counsel on both sides of this interesting controversy; and we think it would serve no useful purpose to review those authorities. It is sufficient to say that, while some of the cases employ language which counsel for appellant have excerpted in support of their contentions, and others use language on which counsel for appellee rely, none of them, in our opinion, determines anything contrary to the decision reached in the present case.
Appellant's briefs contain abundant authority that, under some circumstances, one taking an absolute devise or bequest may, on evidence aliunde the will itself, be held trustee for another. The question here, however, is not whether a trust for the child could be proved by evidence outside the will; it is whether Alexander was provided for in the will; and, as to this, there can be no question but that he was not so provided for. On the contrary, the testamentary provision on which appellant relies, whereby the devise is made to him, excludes by its terms, as shown in the first paragraph of this opinion, all other persons, including Alexander, and he is not mentioned in any other part of the will.
"Every part of a will must be in writing" and the trust in this case, if it could exist, would owe its validity, "not to the [written] will," but to facts depending for their proof on oral evidence dehors that instrument: see the opinion of GIBSON, C. J., in Hoge v. Hoge, 1 Watts 163, 215. Without regard to whether this evidence *Page 404
was properly admissible, or whether, if competent, it was sufficient to establish the alleged trust (propositions argued in the briefs of counsel), such trust, — even if accepted as proved for the purposes of determining this case, and as showing a substantial provision for testatrix's after-born child, — not being incorporated in the will itself, fails to meet the requirements of the law of Pennsylvania, and this results in an intestacy so far as the rights of Alexander to his mother's estate is concerned. The court below properly so determined.
The decree is affirmed, costs to be paid out of the estate. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4555619/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:08 AM CDT
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STATE v. SAID
Cite as 306 Neb. 314
State of Nebraska, appellee, v.
Ahmed Said, appellant.
___ N.W.2d ___
Filed July 2, 2020. No. S-18-901.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a
statement based on its claimed involuntariness, including claims that
law enforcement procured it by violating the safeguards established
by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a
two-part standard of review. Regarding historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those
facts meet constitutional standards, however, is a question of law,
which an appellate court reviews independently of the trial court’s
determination.
2. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
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5. Trial: Rules of Evidence. A trial court exercises its discretion in deter-
mining whether evidence is relevant and whether its prejudicial effect
substantially outweighs its probative value.
6. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
7. Trial: Evidence: Appeal and Error. A trial court’s determination of the
relevancy and admissibility of evidence must be upheld in the absence
of an abuse of discretion.
8. Miranda Rights: Self-Incrimination. The safeguards of Miranda
ensure that the individual’s right to choose between speech and silence
remains unfettered throughout the interrogation process.
9. ____: ____. If the suspect indicates that he or she wishes to remain
silent or that he or she wants an attorney, the interrogation must cease.
10. Miranda Rights: Right to Counsel: Police Officers and Sheriffs:
Self-Incrimination. In order to require cessation of custodial interro-
gation, the subject’s invocation of the right to counsel must be unam-
biguous and unequivocal. Once a person has invoked his or her right to
remain silent, the police must scrupulously honor that right.
11. Constitutional Law: Trial: Convictions: Appeal and Error. Even con-
stitutional error does not automatically require reversal of a conviction if
that error was a trial error and not a structural defect.
12. Trial: Evidence: Appeal and Error. The admission of an improperly
obtained statement is a trial error, and so its erroneous admission is
subject to harmless error analysis.
13. Trial: Verdicts: Appeal and Error. Harmless error review looks to the
basis on which the trier of fact actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.
14. Search and Seizure: Police Officers and Sheriffs: Evidence. Evidence
must be excluded as fruit of the poisonous tree if it is discovered by the
exploitation of illegal police conduct.
15. Evidence: Police Officers and Sheriffs. Not all evidence is fruit of the
poisonous tree simply because it would not have come to light but for
the illegal action of the police. The question is whether the evidence has
been obtained by exploiting the primary illegality or has instead been
obtained by means sufficiently distinguishable so as to be purged of the
primary taint.
16. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In
reviewing the strength of an affidavit submitted as a basis for finding
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STATE v. SAID
Cite as 306 Neb. 314
probable cause to issue a search warrant, an appellate court applies a
totality of the circumstances test. The question is whether, under the
totality of the circumstances illustrated by the affidavit, the issuing mag-
istrate had a substantial basis for finding that the affidavit established
probable cause.
17. Search Warrants: Probable Cause: Words and Phrases. Probable
cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found.
18. Search Warrants: Affidavits: Evidence: Appeal and Error. In evalu-
ating the sufficiency of an affidavit used to obtain a search warrant,
an appellate court is restricted to consideration of the information and
circumstances contained within the four corners of the affidavit, and
evidence which emerges after the warrant is issued has no bearing on
whether the warrant was validly issued.
19. Constitutional Law: Search Warrants. The Fourth Amendment to the
U.S. Constitution and Neb. Const. art. I, § 7, require that a search war-
rant be particular in describing the place to be searched and the persons
or things to be seized.
20. Constitutional Law: Search Warrants: Police Officers and Sheriffs.
To satisfy the particularity requirement of the Fourth Amendment, a
warrant must be sufficiently definite to enable the searching officer to
identify the property authorized to be seized.
21. Search Warrants. The purpose of the particularity requirement as it
relates to warrants is to prevent general searches, and whether a warrant
is insufficiently particular depends upon the facts and circumstances of
each case.
22. Search Warrants: Affidavits. An inadvertent defect in a search warrant
may be cured by reference to the affidavit used to obtain the warrant if
the affidavit is incorporated in the warrant or referred to in the warrant
and the affidavit accompanies the warrant.
23. Criminal Law: Constitutional Law: Due Process. Whether rooted
directly in the Due Process Clause of the 14th Amendment or in the
Compulsory Process or Confrontation Clauses of the 6th Amendment,
the federal Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.
24. Evidence. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence. Relevancy requires only that the probative value be something
more than nothing.
25. Evidence: Words and Phrases. Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
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danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Unfair prejudice means an undue
tendency to suggest a decision based on an improper basis.
26. DNA Testing: Evidence. Inconclusive DNA results are irrelevant
because they do not help the fact finder assess whether the defendant is
or is not the source of the sample.
27. Rules of Evidence. “Opening the door” is a rule of expanded relevancy
which authorizes admitting evidence that would otherwise be irrelevant
in order to respond to (1) admissible evidence which generates an issue
or (2) inadmissible evidence admitted by the court over objection.
Appeal from the District Court for Hall County: Mark J.
Young, Judge. Affirmed.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik,
and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Ahmed Said appeals his convictions and sentences in the
district court for Hall County for second degree murder and
use of a weapon to commit a felony. Said claims on appeal that
the court erred when it (1) admitted statements he made as a
result of allegedly unconstitutional interrogations, (2) admitted
evidence from an allegedly unconstitutional search of his cell
phone, (3) prohibited him from presenting evidence regarding
the victim’s mental health and use of alcohol and prescription
drugs, (4) denied him the right to impeach a witness’ testi-
mony with cross-examination regarding specific instances of
conduct and bias, and (5) allowed evidence regarding DNA
testing, which Said argued was inconclusive and therefore
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irrelevant and unfairly prejudicial. We affirm Said’s convic-
tions and sentences.
STATEMENT OF FACTS
Investigation of Death and
Charges Against Said.
The State charged Said with second degree murder and use
of a weapon to commit a felony in connection with the death
of Adulma Khamis. Around 7 a.m. on April 13, 2017, a police
officer who was responding to a call for a welfare check found
Khamis lying unconscious on the ground outside a residence
located approximately five blocks away from Pioneer Park in
Grand Island, Nebraska. Khamis was taken to a hospital, where
it was determined that he was comatose and had multiple
fractures to his skull and a large amount of bleeding between
his skull and brain. Surgery was performed, but Khamis died
several days later, on April 19. The pathologist who performed
the autopsy on Khamis determined that the cause of death was
“blunt trauma to the head resulting in skull fractures and sig-
nificant trauma to the left side of the brain.”
After learning from the emergency room doctor that Khamis
had suffered serious head trauma and a fractured skull, the
responding officer and other police began to investigate the
matter as a criminal one. The responding officer secured
the location where he had found Khamis. He also attempted to
speak with Khalil Kouri, a man the officer knew from previous
contacts to live in the residence outside of which Khamis had
been found. Kouri was not there at the time, but police later
contacted him at work.
Kouri testified at trial in this case that Khamis was a friend
of his and that Khamis would sometimes visit Kouri’s home.
Kouri testified that on the evening of April 12, 2017, a few
friends, not including Khamis, were socializing at Kouri’s
residence. Kouri recalled that at some point in the evening,
he heard an unknown person knocking on his door, but that
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STATE v. SAID
Cite as 306 Neb. 314
he told the person to go away because he had to work in the
morning and wanted to go to sleep. Kouri testified that when
he went to work at 5 a.m. the next day, it was still dark and he
did not notice anything unusual.
As the investigation continued, Said became a suspect based
on evidence including security camera videos that, the parties
stipulated at trial, depicted a fight between Said and Khamis on
the evening of April 12, 2017. The security cameras were from
a business located near Pioneer Park.
The State’s theory of the case at trial was that Said had
caused the fatal injuries to Khamis by striking him in the head
with a metal pole and that Khamis had remained conscious
and mobile for some time after the injury, eventually becom-
ing unconscious after attempting to be admitted to Kouri’s
residence. Said asserted as part of his defense that Khamis had
been the aggressor in the fight and that Said’s actions in the
fight had been taken in self-defense. Said further attempted
to develop Kouri as an alternate suspect in causing Khamis’
death. Evidence at Said’s trial included numerous exhibits and
testimony by numerous witnesses; the discussion of evidence
and proceedings hereinafter focuses on matters related to issues
raised in this appeal.
Motion to Suppress Said’s Statements
in Interrogations and Letter.
Prior to trial, Said filed a motion to suppress statements he
made as a result of what he asserted were unconstitutional cus-
todial interrogations. Said specified four separate interrogations
in his motion, but on appeal, he focuses on two dates—April
20 and June 5, 2017. Said also sought to suppress a letter dated
April 29, 2017, that he had written to his sister while he was
in prison; he asserted that the letter was improperly seized as
“fruit of the poisonous tree” stemming from prior interroga-
tions. After an evidentiary hearing, the district court granted in
part and overruled in part Said’s motion to suppress the state-
ments and the letter.
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STATE v. SAID
Cite as 306 Neb. 314
Regarding the April 20, 2017, interrogation, evidence at
the hearing indicated that Said had been arrested on April 19
on a charge unrelated to the present case. Officers, including
Steven Sloan, interviewed Said on April 19. Sloan returned
on April 20 and asked Said to discuss a different case—the
assault of Khamis. A recording of the interview indicated that
at the beginning of the interview, Said appeared willing to talk
to Sloan. But after Sloan read Said his Miranda rights and
asked whether he was willing to speak without an attorney,
Said replied, “Uh, no.” After Sloan asked again whether Said
“want[ed] to talk to [him],” Said replied, “[N]o, I do not.”
Sloan did not then stop the interview. Instead, Sloan continued
attempting to convince Said to talk and, inter alia, explained
that he wanted to talk about “something . . . different” from
what they had talked about on April 19. Said then agreed to
speak with Sloan, and they discussed the present case. At
approximately 21 minutes into the interview, Said stated, “[N]o
more talking” and “I’m just going to stop talking and just cut
off because I’m trying to go back . . . .” Sloan continued the
interview and confronted Said with evidence connected to the
investigation regarding Khamis.
In its order on the motion to suppress, the district court
found that statements Said made in the April 19, 2017, inter-
view were voluntary and that officers honored Said’s request
when he indicated that he wished to stop talking. The court
determined that because the April 20 interview involved a
different case, Said’s assertion of his rights at the end of the
April 19 interview did not bar the April 20 interview. The
court determined that although at the beginning of the April
20 interview, Said stated he did not want to speak without an
attorney, Sloan “attempted to clarify” and Said subsequently
spoke voluntarily until the 21-minute mark, when he said,
“[N]o more talking.” The court concluded that Said’s state-
ments prior to the 21-minute mark were voluntary but that
statements after that point should be suppressed.
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Sloan returned to speak with Said on June 5, 2017. Sloan
read Said his Miranda rights, and Said waived them. The
district court determined that Said’s statements and his waiver
of rights on June 5 were voluntary. The court determined that
“[g]iven the over two-week break between the April 20, 2017,
interview and the June 5, 2017, contact there was a sufficient
break” from any coercion related to the April 20 interview.
The court overruled the motion to suppress as to the June
5 statements.
The letter Said sought to suppress was written by him to his
sister and was dated April 29, 2017. In the letter, Said asked
his sister to get him a lawyer. He also asked her to inquire
about the security camera at the business near the Pioneer Park
to determine what angles and areas the camera recorded. He
further named a witness who “told them [e]verything,” and he
asked his sister to “[p]ress [the witness’] [a]ss.”
Said contended that the letter was “fruit of the poisonous
tree” because he wrote the letter based on information he had
learned from the investigators in the allegedly improper inter-
views of April 19 and 20, 2017. The district court rejected
Said’s argument. The court reasoned that (1) the April 19 inter-
view and most of the April 20 interview did not violate Said’s
rights, (2) there was evidence that Said could have learned the
information from sources other than the investigators, and (3)
writing the letter was Said’s voluntary decision and was not
a result of police misconduct. The court therefore overruled
Said’s motion to suppress the letter.
At trial, the court admitted the letter and various state-
ments from the two interviews over Said’s renewed objections.
Among the statements from the April 20, 2017, interview put
into evidence were statements in which Said denied having
worn an orthopedic boot on April 12, denied knowing a wit-
ness, and denied drinking alcohol on April 12. Other evidence
at trial contradicted these statements, and the State used Said’s
statements in the interview to argue that he was lying in
order to hide his involvement in Khamis’ death. In the June 5
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interview, Said made statements to the effect that he was upset
that law enforcement had intercepted the letter he wrote to
his sister.
Motion to Suppress Evidence Obtained
From Search of Cell Phone.
Also prior to trial, Said filed a motion to suppress evidence
that had been obtained from a search of his cell phone. The
search had been conducted pursuant to a search warrant that
had been issued by the court based on Sloan’s affidavit. Said
argued that (1) the affidavit did not include sufficient infor-
mation to establish probable cause for the search and (2) the
affidavit and the warrant based on it were overbroad and not
sufficiently limited in scope to items directly related to any
probable cause that might justify the search. Regarding the lack
of probable cause, Said argued, inter alia, that Sloan’s affidavit
omitted information that would have undermined the cred-
ibility of Hussein Nuri, who had told investigators, inter alia,
that Said had told Nuri that he had struck Khamis with a metal
pole. Said asserted Sloan omitted information regarding Nuri’s
prior conviction for false reporting, Nuri’s alcohol problems,
and physical evidence that contradicted what Nuri said Said
had told him.
In its order overruling the motion to suppress, the district
court noted that a second affidavit that resulted in a second
search warrant cured the omission. The court nevertheless
examined the first affidavit and warrant and determined that
the omissions regarding alcohol abuse and contradictory physi-
cal evidence were not material because there was no indica-
tion Nuri was drunk when he made his statement to Sloan
and because the physical evidence contradicted details but
did not contradict the main point of Said’s reported statement
to Nuri—that he had struck Khamis. The court determined
Sloan should have disclosed Nuri’s record for honesty, but
it concluded that even without Nuri’s statements, there was
sufficient evidence to support probable cause; such evidence
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included the security camera recordings depicting the fight
between Said and Khamis and Said’s letter to his sister. The
court reasoned this evidence showed that the cell phone might
contain information regarding the fight, such as communica-
tions between Said and Khamis that might have led to the
fight, as well as location information corroborating Said’s
presence at the place and time of the fight; the court found
that the letter furnished probable cause to believe Said might
have used his cell phone prior to his incarceration in order to
get information regarding the investigation related to Khamis’
assault and death. The court also rejected Said’s arguments
regarding particularity. As noted above, the court overruled the
motion to suppress evidence obtained from the search of the
cell phone.
At trial, the court admitted evidence obtained from the search
of Said’s cell phone over Said’s renewed objections. Such evi-
dence included the internet history, which included “Google
searches” performed in the days after the fight between Said
and Khamis. Terms searched included Said’s name, Khamis’
name, the name of the hospital to which Khamis was admitted,
and local obituaries. The history also included searches regard-
ing head injuries, comas, what happens after a person gets hit
in the head with a metal pole, and whether a head injury can
cause brain death.
Evidence Regarding Khamis’
Mental State.
At various points during the trial, Said sought to question
witnesses or present evidence regarding Khamis’ mental health
and prescription drugs in his possession that were used as
antipsychotics or to treat depression. Said generally sought to
admit the evidence to support his defense that Khamis was the
aggressor and that Said acted in self-defense. The court gener-
ally sustained the State’s objections based on relevance.
During the testimony of the nurse who treated Khamis at
the hospital, Said attempted to cross-examine her regarding
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information she may have gathered regarding a history of
“chronic alcoholism,” Khamis’ “psychological history,” and his
“prior history involving hospitalizations.” The court sustained
the State’s objections based on relevance.
During the cross-examination of a neurological surgeon who
treated Khamis, Said asked whether he was aware of “some
history of [Khamis] in respect to a psychiatric history.” The
court sustained the State’s objection.
The State thereafter asked the court, outside the jury’s pres-
ence, for an order preventing Said from asking questions about
Khamis’ “history of . . . alcohol abuse . . . and any kind of psy-
chiatric matters.” In opposition, Said argued that there was evi-
dence that when Khamis was found, he had in his possession
an antidepressant (Prozac) and an antipsychotic (Olanzapine).
He further noted that Khamis’ autopsy showed the presence of
an antidepressant, as well as an anticonvulsant drug (Keppra).
Said argued that evidence regarding Khamis’ possible use of
these drugs was relevant to his claim that Khamis was the
initial aggressor in the fight, as well as to issues regarding the
cause of Khamis’ death.
After further argument and offers of proof, the court ruled
that Said could ask the doctor “what effects those specific
drugs may cause, if those are somehow relevant,” but the court
stated that it would “not allow questions concerning what the
drugs are prescribed for and what they treat.” The court fur-
ther ruled that it would not allow questions regarding Khamis’
“chronic alcohol use or alcoholism” without Said’s showing a
“nexus between prior alcohol use and his condition” at relevant
times. The court later clarified that by the “effects” of a drug,
it meant “the impacts [the drug] would have had on the treat-
ment at [the hospital] on these dates, not its overall why it’s
prescribed or what it treats.”
Said’s cross-examination of the neurological surgeon contin-
ued thereafter. Said was allowed to ask questions regarding the
effects of the drugs Prozac, Olanzapine, and Keppra.
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Prior to Said’s cross-examination of the pathologist who
performed the autopsy on Khamis, the court ruled on a pending
evidentiary issue. The court stated as follows:
Khamis’s prior suicide attempt, mental health diagnoses
or mental health applications (sic) are not relevant, and
even if relevant, applying the [rule] 403 balancing test,
the Court finds prejudice as defined in [rule] 403 sub-
stantially outweighs the probative value and inquiry is
not allowed.
....
As to the medications discussed in the toxicology
report, as to each medication, . . . Said’s counsel may
inquire on cross-examination of whether the medication
led to death, led to his death, or changed the doctor’s
opinion as to the cause of death. Counsel may also inquire
if he observed injuries consistent with seizures [or] a fall
related to seizures.
....
Counsel may not inquire as to what mental health
treatments or drugs found in . . . Khamis’s system are
prescribed for . . . .
Counsel may, subject to other objections, inquire as to
whether the witness knows if Keppra . . . leads to aggres-
sive behavior. . . .
....
[Regarding Prozac,] I find there’s an insufficient nexus
. . . regarding aggression, while it has a number of other
reported side effects, there’s simply not enough nexus on
the record before the Court . . . .
....
. . . I make the same findings as to [Olanzapine] and
will not allow cross-examination on that.
Impeachment of Nuri.
At trial, Nuri testified, inter alia, that Said told him that
Said “struck [Khamis] with a metal stick in the back of his
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head twice in the alley.” On cross-examination, Said asked
Nuri if he had ever been convicted of “a crime of dishonesty”;
Nuri replied that he had. Said began another line of question-
ing, to which the State objected. Outside the jury’s presence,
the parties argued to the court regarding Said’s anticipated
lines of questioning.
One issue was that in Nuri’s deposition, he had admit-
ted that on his Facebook page he had lied by saying that
he had graduated from a certain university and that he had
worked for a certain bank. Said argued that this evidence was
admissible pursuant to Neb. Evid. R. 608, Neb. Rev. Stat.
§ 27-608(2) (Reissue 2016). After the parties argued the issue,
the court ruled that it would not allow Said to cross-examine
Nuri “concerning false claims made by . . . Nuri on his
Facebook page.”
Another issue arose at trial regarding Nuri’s pending crimi-
nal charges. Specifically, Nuri had entered a plea to a pending
criminal charge and was awaiting sentencing. Said argued that
evidence of the pending charge was relevant to show bias and
a motive to fabricate testimony. The court ruled that it would
be improper to cross-examine Nuri regarding the pending
charge, because “there’s been no showing that [Nuri] has any
specific inducement such as a promise of leniency” and “Nuri
has pled to whatever the underlying facts are.”
DNA Evidence and “Uninterpretable” Samples.
In his defense, Said called witnesses, including Brandy
Porter, a forensic scientist in the Nebraska State Patrol Crime
Laboratory. Porter testified that she had performed DNA analy-
sis on multiple samples that were collected in connection with
this case, including samples from several stains on the clothing
Khamis was wearing. She compared the samples to reference
samples from Khamis, Said, and Kouri.
Said questioned Porter regarding her testing of cer-
tain specific stains. With regard to those specific stains,
Porter testified that her analysis indicated that Khamis was
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included as a potential major contributor and that Said was
excluded. Testing of certain stains indicated a second con-
tributor, and Porter testified that Said was excluded as the
second contributor.
On cross-examination, the State questioned Porter regard-
ing general matters pertaining to DNA analysis. As part of that
questioning, Porter testified that an “interpretable profile is a
DNA profile in which I can make conclusions regarding the
identity of the individuals in that sample” and that “[i]f we
can’t make scientific conclusions regarding the identity of the
individuals, the profile is deemed uninterpretable.” She further
testified, “Uninterpretable means that the sample is either too
complex or it doesn’t have enough genetic information present
for me to make an accurate scientific conclusion regarding who
is present in that sample.”
The State then asked whether “[i]n this particular case,
[Porter had made] a determination that any of the items that
[she] tested were uninterpretable.” The court allowed Porter
to answer over Said’s objection, and Porter replied in the
affirmative. Thereafter, the State asked Porter about her test-
ing of various specific samples other than those about which
Said had questioned her on direct. Porter testified over Said’s
continuing objections that as to some of those specific sam-
ples, results regarding contributors other than Khamis were
determined to be uninterpretable, and that as to other specific
samples, Khamis was included and both Said and Kouri were
excluded as contributors.
At the end of the State’s cross-examination of Porter, the
court gave the following limiting instruction:
Evidence of uninterpretable DNA results is offered only
to show you what steps were taken to test the items by
the analyst. DNA testing results that are uninterpretable
are not to be considered by you as evidence that anyone
contributed to that DNA sample — to the sample. The
jury may not speculate as to who may or may not have
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contributed to any sample that was listed or tested, the
result of which was considered to be uninterpretable.
On redirect, Said elicited from Porter testimony that she was
able to make scientific conclusions on 19 samples from which
Said was excluded and that Said was not included in any
samples for which she was able to make scientific conclusions.
Verdict, Sentence, and Appeal.
Said rested his defense after Porter’s testimony, and the
State chose not to present rebuttal evidence. Thereafter, the
court read its instructions and submitted the case to the jury.
The jury found Said guilty of second degree murder and use
of a weapon to commit a felony. The district court sentenced
Said to imprisonment for 60 to 80 years for second degree
murder and for a consecutive term of 25 to 30 years for use of
a weapon.
Said appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Said claims that the court erred when it (1) admitted state-
ments he made in the April 20 and June 5, 2017, interrogations
and in the letter to his sister; (2) admitted evidence from the
search of his cell phone; (3) prohibited him from presenting
evidence regarding Khamis’ mental state and his use of drugs
and alcohol; (4) denied him the right of confrontation and the
opportunity to impeach Nuri’s testimony with evidence of spe-
cific instances of conduct and bias; and (5) allowed testimony
by Porter regarding DNA testing that Said asserts was incon-
clusive and therefore irrelevant and unfairly prejudicial.
STANDARDS OF REVIEW
[1] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating the safeguards established by
the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court
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applies a two-part standard of review. Regarding historical
facts, an appellate court reviews the trial court’s findings
for clear error. Whether those facts meet constitutional stan-
dards, however, is a question of law, which an appellate court
reviews independently of the trial court’s determination. State
v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
[2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). Regarding
historical facts, an appellate court reviews the trial court’s
findings for clear error, but whether those facts trigger or vio-
late Fourth Amendment protection is a question of law that
an appellate court reviews independently of the trial court’s
determination. Id.
[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529
(2020). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Id.
[5-7] A trial court exercises its discretion in determin-
ing whether evidence is relevant and whether its prejudicial
effect substantially outweighs its probative value. State v.
Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019). An abuse
of discretion occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence.
Id. A trial court’s determination of the relevancy and admis-
sibility of evidence must be upheld in the absence of an abuse
of discretion. State v. Carpenter, 293 Neb. 860, 880 N.W.2d
630 (2016).
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The determination of whether procedures afforded an indi-
vidual comport with constitutional requirements for procedural
due process presents a question of law. State v. McCurry, 296
Neb. 40, 891 N.W.2d 663 (2017).
ANALYSIS
Any Error in the Admission of Statements From
Two Interviews Was Harmless Error, and
District Court Did Not Err When It
Overruled Said’s Motion to
Suppress the Letter.
Said claims that the court erred when it admitted statements
he made in the April 20 and June 5, 2017, interviews and in
the letter to his sister. He argues that at the beginning of the
April 20 interview, he invoked with clear and unequivocal
language his right to remain silent, and that all statements he
made thereafter, including statements made in that interview as
well as statements made in the letter and in the June 5 inter-
view, were inadmissible as having been obtained in violation
of his Miranda rights. We determine that admission of Said’s
statements in the April 20 and June 5 interviews was harmless
error and that overruling the motion to suppress the letter was
not error.
We first consider the April 20, 2017, interview. The district
court determined that Said clearly invoked his Miranda rights
21 minutes into the interview, and it therefore suppressed
statements he made after that point. But the court determined
his statements prior to that point were voluntary and therefore
admissible. Said argues that the entire interview should have
been suppressed because he clearly and unequivocally invoked
his rights at the beginning of the interview.
[8-10] The safeguards of Miranda ensure that the individu-
al’s right to choose between speech and silence remains unfet-
tered throughout the interrogation process. State v. Clifton,
296 Neb. 135, 892 N.W.2d 112 (2017). If the suspect indicates
that he or she wishes to remain silent or that he or she wants
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an attorney, the interrogation must cease. Id. The right to
choose between speech and silence derives from the privilege
against self-incrimination. Id. In order to require cessation of
custodial interrogation, the subject’s invocation of the right
to counsel must be unambiguous and unequivocal. State v.
Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). Once a per-
son has invoked his or her right to remain silent, the police
must scrupulously honor that right. State v. Bauldwin, 283
Neb. 678, 811 N.W.2d 267 (2012).
In its brief, the State argues that persons who are already
incarcerated when they are interviewed are not subject to the
same pressures against which the Miranda protections are
designed to operate and that therefore, such interviews are not
considered custodial interrogations. The State cites two U.S.
Supreme Court cases, Howes v. Fields, 565 U.S. 499, 132 S.
Ct. 1181, 182 L. Ed. 2d 17 (2012), and Maryland v. Shatzer,
559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). The
State acknowledges that unlike the present case, the cases cited
involved persons who had already been convicted and sen-
tenced and were serving a set term in prison. The State urges
that the reasoning in the two U.S. Supreme Court cases be
extended to cases involving pretrial detainees, like Said at the
time of the statements at issue. Said contends that extending
these cases to a pretrial defendant detained for a short period
is not proper.
We need not resolve this dispute, because, despite rais-
ing this argument, the State concedes that on the facts of
this case—including the fact that at the time of the April 20,
2017, interview, Said had been in detention for fewer than
24 hours—“viewed objectively, the coercive atmosphere and
pressure from April 19th most likely still existed on April
20th and Said was in custody for purposes of Miranda on that
date.” Brief for appellee at 26. The State further notes that the
officer twice asked Said whether he was willing to talk with-
out a lawyer and that both times, Said replied that he was not.
Although it argues that asking the second time was a proper
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clarification of Said’s response to the first question, the State
concedes that when the officer continued urging Said to talk,
it was an interrogation that should not have been undertaken
after Said clearly invoked his Miranda rights. The State con-
cludes in its brief that “the district court erred when it admit-
ted Said’s statements from the April 20th interview.” Brief for
appellee at 28.
[11-13] Having conceded that the court erred when it admit-
ted Said’s statements from the April 20, 2017, interview, we
turn to the State’s further argument that the erroneous admis-
sion of statements from the April 20 interview was harmless
error. We have said that even constitutional error does not
automatically require reversal of a conviction if that error
was a trial error and not a structural defect. State v. DeJong,
287 Neb. 864, 845 N.W.2d 858 (2014). The admission of
an improperly obtained statement is a trial error, and so its
erroneous admission is subject to harmless error analysis.
Id. To conduct harmless error review, we look to the entire
record and view the erroneously admitted evidence relative
to the rest of the untainted, relevant evidence of guilt. Id.
Harmless error review looks to the basis on which the trier of
fact actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error a guilty verdict would
surely have been rendered, but whether the actual guilty
verdict rendered in the questioned trial was surely unattribut-
able to the error. State v. Nolan, 292 Neb. 118, 870 N.W.2d
806 (2015).
The State notes that in the April 20, 2017, interview, Said
did not confess to the crime under investigation and that
therefore, the statements in and of themselves did not incrimi-
nate him. Said argues that admission of the statements was
not harmless error, because although he did not admit to any
wrongdoing, he made several statements that were contra-
dicted by other evidence presented by the State. He argues
that admission of the statements harmed him because the
State used the statements to call his credibility into issue even
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though he was not a witness in the trial. In addition and in a
similar vein, Said objected to portions of the prosecution’s
closing arguments as having put Said’s credibility into issue
when he was not a witness and had not otherwise put his char-
acter at issue in the case. In lieu of declaring a mistrial, the
court at Said’s request provided a curative instruction that the
jury was to “determine only the credibility of the witnesses
who testify” and that it was “to disregard any statements,
written or spoken, concerning the credibility of persons who
did not testify.”
In response to Said’s arguments, the State contends that there
was evidence aside from Said’s statements to police which
indicated that Said had attempted to diminish his involvement
in the altercation with Khamis. The State further contends
that the prosecutor’s references in closing arguments to Said’s
statements on April 20, 2017, were brief. The State thus asserts
that error regarding the April 20 statements was harmless.
We agree that the error in admitting statements from the
April 20, 2017, interview was harmless error. Viewing the
statements in the context of “the entire record” and “the rest of
the untainted, relevant evidence of guilt,” see State v. DeJong,
287 Neb. at 884, 845 N.W.2d at 874-75, we determine the
guilty verdict in this case was “surely unattributable” to the
error in admitting the statements, see State v. Nolan, 292 Neb.
at 140, 870 N.W.2d at 825. There was other evidence that Said
attempted to diminish his involvement in this case, and to the
extent the statements might have been seen as evidence of
his credibility, the court made clear to the jury in the curative
instruction that Said’s credibility was not at issue.
We next consider the April 29, 2017, letter that Said wrote
to his sister. Said argues that the “fruit of the poisonous tree”
doctrine applies because the letter and its contents were the
result of the April 20 interview and that because that inter-
view was in violation of his rights, the letter should also be
inadmissible.
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[14] The fruit of the poisonous tree doctrine generally pro-
vides that evidence must be excluded as fruit of the poisonous
tree if it is discovered by the exploitation of illegal police
conduct. See State v. Gorup, 275 Neb. 280, 745 N.W.2d 912
(2008). The State argues that the fruit of the poisonous tree
doctrine is generally applied only in the context of a search or
seizure in violation of the Fourth Amendment and that to the
extent that Said contends the content of the letter is at issue, it
is questionable whether the doctrine even applies in the context
of such a Fifth Amendment violation. However, assuming it
does apply in such context, the State argues that the doctrine
would not require exclusion of the letter, because the letter was
not discovered through governmental exploitation of the April
20, 2017, interview.
[15] For purposes of our analysis in this case, we assume
the doctrine applies. Not all evidence is fruit of the poisonous
tree simply because it would not have come to light but for
the illegal action of the police. State v. Bray, 297 Neb. 916,
902 N.W.2d 98 (2017). The question is whether the evidence
has been obtained by exploiting the primary illegality or has
instead been obtained by means sufficiently distinguishable so
as to be purged of the primary taint. Id.
Said argues that the letter was the fruit of the poisonous
tree of the April 20, 2017, interview because he was prompted
to write the letter based on what he learned about the police
investigation in the interview. But the police did not use infor-
mation they obtained in the April 20 interview to discover the
letter, and therefore, the police did not exploit any informa-
tion they had learned from the interview in order to discover
the letter. Said’s action of writing the letter in response to the
interview broke any causal connection between the State’s
actions in the interview and the State’s later discovery of the
letter, and such discovery was sufficiently attenuated from the
April 20 interview. See State v. Bray, supra. We conclude that
the discovery of the letter was not a result of police exploita-
tion of the April 20 interview. The letter was not inadmissible
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under the fruit of the poisonous tree doctrine, and therefore,
the court did not err when it overruled Said’s motion to sup-
press the letter.
We finally consider the June 5, 2017, interview. Said
argues that statements he made in the June 5 interview should
have been suppressed because that interview was a continu-
ation of the questioning in the April 20 interview in which
he had invoked his right to remain silent. He cites State v.
Pettit, 227 Neb. 218, 417 N.W.2d 3 (1987), and argues that
there was not a significant passage of time after the April 20
interview and that the subject of the June 5 interview was the
same transaction or occurrence that was the subject of the
April 20 interview.
The State concedes in its brief that the Pettit factors were
not met, but it argues that any error in admitting statements
from the June 5, 2017, interview was harmless error. We
agree. Said argues that admission of the June 5 statements
was not harmless, because he made statements to the effect
that he was upset that law enforcement had intercepted the
letter he wrote to his sister. He asserts the State used the let-
ter and Said’s sensitivity to the interception of the letter as
an integral part of its closing argument. But we agree with
the State’s argument that Said’s statements that he was upset
the police found the letter was “inconsequential” in light of
the fact that the letter itself was admissible. Brief for appellee
at 33. Viewed in the context of the entire record and properly
admitted evidence, we determine the verdict was surely unat-
tributable to any error in admitting statements from the June
5 interview.
District Court Did Not Err When It Overruled
Motion to Suppress Evidence From
Search of Said’s Cell Phone.
Said next claims that the court erred when it admitted evi-
dence from the search of his cell phone. He contends that the
warrant authorizing the search and the application supporting
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the warrant lacked both probable cause and particularity. We
conclude that the district court did not err when it overruled
the motion to suppress evidence obtained from the search.
The Fourth Amendment to the U.S. Constitution provides
that warrants may not be granted “but upon probable cause,
supported by Oath or affirmation, and particularly describ-
ing the place to be searched, and the persons or things to
be seized.” The Nebraska Constitution, under article I, § 7,
similarly provides that “no warrant shall issue but upon prob-
able cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to
be seized.”
[16-18] We first consider Said’s argument that probable
cause to support the search warrant was lacking. In reviewing
the strength of an affidavit submitted as a basis for finding
probable cause to issue a search warrant, an appellate court
applies a totality of the circumstances test. State v. Goynes, 303
Neb. 129, 927 N.W.2d 346 (2019). The question is whether,
under the totality of the circumstances illustrated by the affi-
davit, the issuing magistrate had a substantial basis for find-
ing that the affidavit established probable cause. Id. Probable
cause sufficient to justify issuance of a search warrant means
a fair probability that contraband or evidence of a crime will
be found. Id. In evaluating the sufficiency of an affidavit used
to obtain a search warrant, an appellate court is restricted to
consideration of the information and circumstances contained
within the four corners of the affidavit, and evidence which
emerges after the warrant is issued has no bearing on whether
the warrant was validly issued. Id.
Said contends that the affidavit submitted by Sloan did
not assert adequate facts to show that evidence related to
the investigation would be found on Said’s cell phone. He
maintains instead that the affidavit contained only generalized
assertions to the effect that “‘persons who commit crimes use
cell phones.’” He similarly maintains that the district court’s
reasoning for finding probable cause was that generally, cell
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phone data can often lead to evidence, and asserts that such
reasoning was erroneous.
Contrary to Said’s characterization of the affidavit, the
record shows that in addition to statements setting forth
the officer’s general knowledge of how cell phones may be
used by a person who is committing or has committed a crime
and how evidence of the crime may be found on a cell phone,
the affidavit also sets forth specific information regarding the
officer’s investigation of this case and Said’s involvement in
the altercation with Khamis. This information included allega-
tions that Said had communicated with others, including his
sister and Nuri, and that he sought information regarding the
assault of Khamis and the police investigation of the assault.
These actions could establish that Said was interested in
learning about the police investigation of the assault, and the
court could infer that if Said was looking for such informa-
tion from other people, he likely also used his cell phone to
search the internet for such information. In the affidavit, the
officer listed the specific types of evidence he was seeking to
find on the cell phone. The listing of items included various
references that made clear the officer was seeking information
regarding the relationship of Said and Khamis and commu-
nications regarding an altercation between the two on April
12, 2017.
We conclude the warrant was supported by probable cause.
The affidavit, including allegations of evidence such as the
video depicting the altercation between Said and Khamis,
gave the officer reason to suspect Said in the investigation of
the assault of Khamis. The affidavit also made clear that the
officer was seeking evidence related to that investigation and
that relevant evidence could be found on Said’s cell phone.
The court therefore did not err when it determined the affi-
davit established probable cause that evidence relevant to the
investigation of the assault of Khamis could be found on Said’s
cell phone.
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[19] We next consider Said’s argument that the warrant
lacked particularity. In addition to the requirement of prob-
able cause, the Fourth Amendment and article I, § 7, contain
a particularity requirement that a warrant describe the place to
be searched and the persons or things to be seized. The par-
ticularity requirement for search warrants is distinct from, but
closely related to, the requirement that a warrant be supported
by probable cause. State v. Goynes, 303 Neb. 129, 927 N.W.2d
346 (2019). A purpose of the particularity requirement for a
search warrant is to prevent the issuance of warrants on loose,
vague, or doubtful bases of fact. Id.
[20] To satisfy the particularity requirement of the Fourth
Amendment, a warrant must be sufficiently definite to enable
the searching officer to identify the property authorized to be
seized. Id. The degree of specificity required depends on the
circumstances of the case and on the type of items involved.
Id. A search warrant may be sufficiently particular even though
it describes the items to be seized in broad or generic terms if
the description is as particular as the supporting evidence will
allow, but the broader the scope of a warrant, the stronger the
evidentiary showing must be to establish probable cause. Id.
As relevant to the instant case, a warrant for the search of the
contents of a cell phone must be sufficiently limited in scope to
allow a search of only that content that is related to the prob-
able cause that justifies the search. Id.
[21] The purpose of the particularity requirement as it
relates to warrants is to prevent general searches, and whether
a warrant is insufficiently particular depends upon the facts
and circumstances of each case. State v. Stelly, 304 Neb. 33,
932 N.W.2d 857 (2019). As a general rule, the description
must enable officers to ascertain and identify the items to be
seized with reasonable certainty and little chance of confusion
or uncertainty. Id.
With regard to particularity, Said’s argument focuses spe-
cifically on paragraph (i) of Sloan’s affidavit, which requests
a search of internet history “relat[ed] to the purchase or
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manufacturing of re-encoded devices and/or the sale of the
proceeds of the transactions.” He notes that the request was
not to search for internet history evidencing the crime being
investigated and as a result merely served to request a general
license to search the internet history. Said also argues that the
request and the warrant issued thereon are overbroad because
they allowed a search of internet history without limiting the
search to evidence related to the homicide investigation. Said
argues this was similar to the “‘any information’” warrant that
we found to be insufficiently particular in State v. Henderson,
289 Neb. 271, 854 N.W.2d 616 (2014). See brief for appellant
at 37.
[22] We conclude the warrant was sufficiently particular.
The record shows that the reference to a different crime in
paragraph (i) of the affidavit was clearly an inadvertent error
that was carried over to this warrant from a form in a prior
matter. An inadvertent defect in a search warrant may be cured
by reference to the affidavit used to obtain the warrant if the
affidavit is incorporated in the warrant or referred to in the
warrant and the affidavit accompanies the warrant. State v.
Stelly, supra. In this case, the affidavit was referred to in the
warrant, and although it also contained the erroneous reference
to a different crime, the inadvertent defect was only one item
in a list of the types of evidence to be searched. The error is
apparent in context because other items in the list, as well as
the warrant and the affidavit read as a whole, make clear that
the evidence being sought in the search of the cell phone was
evidence related to the investigation of the assault of Khamis
and not the crime that was erroneously referenced.
We also find that the warrant was not overbroad. Although
the warrant listed various types of data that could be searched
for on the cell phone, it listed specific types of evidence,
and unlike the warrant in Henderson, it did not authorize a
search for “‘any information.’” See brief for appellant at 37.
We distinguished Henderson in State v. Goynes, 303 Neb.
129, 144, 927 N.W.2d 346, 357 (2019), in which we found a
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warrant to be sufficiently particular because it identified that
it was a warrant for the investigation of a specific homicide
and because although it included an expansive list of types of
data that could be searched, it “did not contain such unquali-
fied language that would permit the search of the cell phone
for ‘“any other information.”’” In the list of types of data
that could be searched in this case, various items specified
data “relating to the relationship of Khamis and [Said] and
communication pertaining to the physical altercation occur-
ring on [April 12, 2017].” Although this specification was
not included as to each item, the warrant read as a whole was
clear that the search was limited to data that would provide
evidence relevant to the investigation of Said in connection
with the assault of Khamis.
Furthermore, as the State notes, there was no danger that
the officer executing the search warrant would not know the
target of the search was evidence related to the homicide inves-
tigation regarding Khamis, because the same officer prepared
the affidavit and conducted the search. We also note that the
evidence found and used in the trial was relevant to this crime
and that there is no indication any of the evidence found and
used in this trial was not relevant to the probable cause that
supported the warrant.
We determine that the warrant in this case was supported
by probable cause and was sufficiently particular. We there-
fore conclude the district court did not err when it overruled
Said’s motion to suppress evidence found in the search of the
cell phone.
District Court Did Not Abuse Its Discretion or Deprive
Said of Complete Defense When It Refused Evidence
Regarding Khamis’ Mental Health, Alcoholism,
and Use of Prescription Drugs.
Said next claims the court erred when it prohibited him
from presenting evidence regarding Khamis’ mental health
issues, his alcoholism, and his use of prescription drugs. He
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asserts that such evidence was critical to his defense because
it was relevant to his defense that Khamis was the aggressor
and that Said therefore acted in self-defense; he also argues
the evidence was relevant to his alternate defense that Khamis’
death was caused by something other than a blow to the head
inflicted by Said. He further argues that he was deprived of
a fair trial when he was prohibited from presenting such evi-
dence. We determine that the court did not abuse its discretion
when it excluded the evidence based on its determinations
regarding relevance and that such rulings did not deprive Said
of his right to present a complete defense.
Said’s arguments focus on evidence regarding (1) Khamis’
history of alcoholism; (2) Khamis’ mental health history, which
included suicidal tendencies; and (3) the purposes, side effects,
and adverse reactions associated with prescription drugs that
were found on Khamis’ person or found in his system at the
autopsy. Said argues that such evidence was relevant to his
defenses that (1) Khamis was the first aggressor and Said acted
in self-defense and that (2) Khamis died from a cause unrelated
to the altercation between Said and Khamis.
[23] In view of Said’s assignments of error, we consider the
propriety of the evidentiary rulings and whether the rulings
deprived Said of the right to present a complete defense. We
have stated that whether rooted directly in the Due Process
Clause of the 14th Amendment or in the Compulsory Process
or Confrontation Clauses of the 6th Amendment, the fed-
eral Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense. State v. McCurry,
296 Neb. 40, 891 N.W.2d 663 (2017). However, the accused
does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under stan-
dard rules of evidence. Id.
[24,25] Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Neb. Evid. R. 401,
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Neb. Rev. Stat. § 27-401 (Reissue 2016). Relevancy requires
only that the probative value be something more than noth-
ing. State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019). But,
“[e]vidence which is not relevant is not admissible.” Neb.
Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016). And,
“[a]lthough relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Neb. Evid. R. 403, Neb.
Rev. Stat. § 27-403 (Reissue 2016). Unfair prejudice means an
undue tendency to suggest a decision based on an improper
basis. State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d
711 (2019).
We first address the court’s rulings in light of Said’s argu-
ment that each type of evidence noted above was relevant to
his defense of self-defense. Regarding evidence of Khamis’
alcoholism, the court ruled that the evidence was not relevant
and not admissible without a showing of a nexus between his
alcoholism and aggressive behavior at the time of his alterca-
tion with Said. The court similarly found that Khamis’ “prior
suicide attempt” and other mental health issues were not rele-
vant. The court also stated that to the extent evidence regarding
Khamis’ mental health history might have minimal probative
value regarding his behavior at the time of the altercation, such
probative value was substantially outweighed by the risk of
unfair prejudice.
Regarding the prescription drugs found on Khamis’ per-
son—Prozac and Olanzapine—the court found that there was
not a sufficient showing that either drug caused aggression.
The State further notes that Olanzapine was not found to be
in Khamis’ system and that therefore, there was no showing
Khamis was under its effect at the time of the altercation.
The drugs found in Khamis’ system in the toxicology screen-
ing were an “anticonvulsant and . . . an antidepressant.” The
antidepressant was presumably Prozac, and the court found
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that although there was evidence that “hostility” and “agita-
tion” were shown to be side effects of Prozac, Said had not
established a nexus between Prozac and aggressive behavior.
The court’s ruling allowed Said to ask questions regarding the
effects of the anticonvulsant drug, Keppra, and Said did elicit
testimony that effects of Keppra include “aggression, agitation,
depression, and irritability.”
We determine that it was within the court’s discretion to
rule that without a showing of a nexus between the offered
evidence and Khamis’ behavior at the time of the altercation,
the evidence was not relevant to whether Khamis might have
been the aggressor and whether Said acted in self-defense.
Regarding whether exclusion of the evidence deprived Said
of a fair trial, as noted above, the right to present a complete
defense does not allow a defendant “an unfettered right to offer
testimony that is . . . otherwise inadmissible under standard
rules of evidence.” State v. McCurry, 296 Neb. 40, 66, 891
N.W.2d 663, 681 (2017). In further support of our understand-
ing that Said was not harmed by the district court’s ruling,
we also note that Said was able to present relevant evidence
in regard to self-defense, including asking a witness about
Khamis’ alcohol use at or around the time of the altercation,
and he was able to present evidence that aggression is a side
effect of Keppra, which was found in Khamis’ system. Using
this evidence, Said was able to argue in closing arguments
that the combination of alcohol and Keppra could have caused
Khamis to be aggressive in the altercation. And the jury was
instructed on Said’s theory of self-defense.
We next address the relevance of the evidence to Said’s
defense theory that Khamis may have died from a cause
unrelated to the altercation. Said did not appear to argue that
Khamis’ history of alcoholism or mental health contributed to
his death; instead, Said asserted that Khamis could have sus-
tained injuries in a fall that was caused by the effects of the
prescription drugs or the combination of the drugs and alcohol.
The State notes that although there was evidence Olanzapine
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increased the risk of falls, Olanzapine—as mentioned ear-
lier—was not found in Khamis’ system at the autopsy. The
State also argues that neither Prozac nor Keppra was shown to
cause falls.
The court’s ruling focused on limiting evidence regarding
the reasons the drugs might be prescribed, which would be
indicative of Khamis’ mental health issues. But the court ruled
that Said could “inquire on cross-examination of whether
the medication led to [Khamis’] death, . . . or changed the
doctor’s opinion as to the cause of death,” and whether the
doctor “observed injuries consistent with seizures [or] a fall
related to seizures.” We conclude that the court’s limitation
of testimony regarding the purpose for which the drugs might
have been prescribed was within its discretion to determine
relevance and that the court did not abuse its discretion in so
ruling. We also conclude that Said was not deprived of the
right to present a complete defense as to the defense theory
that the cause of death might have been something other than
the injury inflicted by Said. The court’s rulings allowed Said
to ask whether the drugs that were in Khamis’ system led to
his death or whether the presence of the drugs changed the
doctor’s conclusion that his death was a result of the blunt
force trauma to Khamis’ head. We conclude that the court did
not abuse its discretion in its rulings regarding the relevance
of the offered evidence, and we further conclude that such
rulings did not deprive Said of his right to present a complete
defense as to either of the asserted defenses.
District Court Did Not Err and Did Not Deprive
Said of Right of Confrontation When It Refused
Cross-Examination on Issues It Determined
to Lack Probative Value.
Said next claims the court erred and violated his right of
confrontation when it denied him the opportunity to impeach
Nuri’s testimony with evidence of specific instances of Nuri’s
conduct and bias. Said argues that he should have been
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allowed to impeach Nuri through cross-examination pursuant
to § 27-608(2) regarding alleged misrepresentations made by
Nuri on his Facebook page and regarding a pending charge
against Nuri to which he had pled but in connection with
which he had not yet been sentenced. We determine that the
court did not abuse its discretion and did not violate Said’s
right of confrontation when it disallowed cross-examination
on these topics.
Said argues that cross-examination on these topics should
have been allowed pursuant to § 27-608(2), which provides:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting his credibility, . . . may
not be proved by extrinsic evidence. They may, however,
in the discretion of the court, if probative of truthfulness
or untruthfulness be inquired into on cross-examination of
the witness . . . concerning his character for truthfulness
or untruthfulness . . . .
Said argues that Nuri’s testimony that Said confessed to Nuri
that he had struck Khamis with a metal pole was crucial to his
conviction and that therefore, it was critical to Said’s defense
to impeach Nuri’s testimony. He argues that Nuri’s “misrepre-
sentations . . . on his Facebook page” and his pending criminal
charge were both relevant to his truthfulness and that limiting
Said’s cross-examination of Nuri violated his right of confron-
tation. See brief for appellant at 47.
An accused’s constitutional right of confrontation is vio-
lated when either (1) he or she is absolutely prohibited
from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of
the witness or (2) a reasonable jury would have received a sig-
nificantly different impression of the witness’ credibility had
counsel been permitted to pursue his or her proposed line of
cross-examination. State v. Swindle, 300 Neb. 734, 915 N.W.2d
795 (2018).
In reference to § 27-608(2), we note that Said was not
attempting to present extrinsic evidence of “[s]pecific
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instances of conduct” and instead was seeking to cross-
examine Nuri on these topics. Therefore, the relevant portion
of § 27-608(2) is that which allows such cross-examination
“in the discretion of the court, if probative of truthful-
ness or untruthfulness.” The statute therefore commits to the
court’s discretion determinations of whether a line of cross-
examination is allowed as being probative of truthfulness
or untruthfulness. Regarding Nuri’s misrepresentations on
Facebook, we find it was reasonable and within the court’s
discretion to determine that these instances were not proba-
tive of the truthfulness or untruthfulness of Nuri’s testimony
in this case. Regarding Nuri’s pending criminal case, the
court reasonably determined that the charge was not relevant
to bias or a motivation to fabricate testimony, because Nuri
had entered a plea, he had done so without benefit of a plea
agreement, and Said made no offer of proof to show that
Nuri’s testimony in this case was an attempt to curry favor
with the State in connection with sentencing in that case. We
find no abuse of the discretion afforded to the court under
§ 27-608(2) in either of these rulings.
We also find no violation of Said’s right to confrontation.
Said was not completely prohibited from cross-examining
Nuri regarding his credibility, and such cross-examination
included Nuri’s admission that he had been convicted of a
crime of dishonesty. We do not think that testimony regard-
ing the misrepresentations on Facebook or the pending charge
would have given the jury a significantly different impression
of Nuri’s credibility.
District Court Did Not Err When It Allowed
Evidence That Results of Certain DNA
Tests Were Uninterpretable.
Said finally claims the court erred when on cross-examination
it allowed testimony by Porter regarding uninterpretable DNA
testing results that Said asserts were “inconclusive” and there-
fore irrelevant and unfairly prejudicial. Brief for appellant
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at 48. We conclude that the court did not abuse its discre-
tion when it allowed the cross-examination.
[26] Said relies on State v. Johnson, 290 Neb. 862, 862
N.W.2d 757 (2015), in which we held that it was error to
admit evidence of inconclusive DNA testing results. We rea-
soned in Johnson that inconclusive results “are irrelevant
because they do not help the fact finder assess whether the
defendant is or is not the source of the sample,” and we
further reasoned that “because of the significance that jurors
will likely attach to DNA evidence, the value of inconclusive
testing results is substantially outweighed by the danger that
the evidence will mislead the jurors.” 290 Neb. at 883-84, 862
N.W.2d at 774.
The State concedes that the “uninterpretable” results in this
case are the functional equivalent of “inconclusive” results
under Johnson. Brief for appellee at 60. But the State dis-
tinguishes its introduction of the results in this case from
the facts in Johnson because it did not offer the evidence in
its case in chief. Instead, the State argues, it cross-examined
Porter regarding uninterpretable results in order to coun-
ter an impression created by Porter’s testimony presented
by Said. The State argues that the otherwise inadmissible
evidence regarding inconclusive DNA testing results became
relevant and admissible pursuant to the specific contradic-
tion doctrine.
[27] The specific contradiction doctrine is said to apply
when one party has introduced admissible evidence that cre-
ates a misleading advantage and the opponent is then allowed
to introduce previously suppressed or otherwise inadmissi-
ble evidence to counter the misleading advantage. State v.
Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016). It is not
enough that the opponent’s contradictory proffered evidence
is merely relevant; the initial evidence must have reason-
ably misled the fact finder in some way. Id. In Carpenter, we
stated that specific contradiction is one aspect of the “opening
the door” doctrine. “Opening the door” is a rule of expanded
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relevancy which authorizes admitting evidence that would oth-
erwise be irrelevant in order to respond to (1) admissible evi-
dence which generates an issue or (2) inadmissible evidence
admitted by the court over objection. State v. Lierman, 305
Neb. 289, 940 N.W.2d 529 (2020).
In this case, Porter testified that she subjected several blood-
stains on Khamis’ clothing to DNA testing. Testing of some
of the stains excluded Said as a contributor, but the testing
of several other stains yielded results that Porter described as
uninterpretable. Said called Porter as a witness in his defense
and questioned her generally about the extent of the testing she
had done, and he questioned her specifically about the stains
for which testing had excluded Said as a contributor. On cross-
examination, the State elicited testimony that several other
stains yielded uninterpretable results, and the court allowed the
testimony over Said’s objections.
The holding in State v. Johnson, 290 Neb. 862, 862 N.W.2d
757 (2015), and the specific contradiction and “opening the
door” doctrines all derive from a court’s evidentiary determina-
tions of relevance and whether probative value is outweighed
by unfair prejudice. As such, determinations in this regard are
committed to the trial court’s discretion and we uphold such
determinations in the absence of an abuse of discretion. See
State v. Carpenter, supra.
We find no abuse of discretion by the district court in its
DNA-related rulings. The court could reasonably have deter-
mined that by questioning Porter generally about the scope
of her testing and then questioning her about the results of
only the samples that excluded him, Said may have cre-
ated a misleading impression that the testing of all samples
excluded him. The State elicited Porter’s otherwise inadmis-
sible testimony regarding the results that were uninterpret
able, and the court reasonably could have determined that
such evidence had become relevant to counter the potential
misleading impression that all samples excluded Said. To the
extent there was a risk of unfair prejudice from testimony
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regarding inconclusive results as we recognized in Johnson,
the court reasonably could have determined that such concern
was adequately mitigated by its limiting instruction that the
evidence was “offered only to show what steps were taken”
and was “not to be considered . . . as evidence that anyone
contributed to that DNA sample.” We conclude that in this
context, the court’s admission of the testimony was not an
abuse of discretion.
CONCLUSION
Having rejected each of Said’s assignments of error, we
affirm Said’s convictions and sentences.
Affirmed.
Funke, J., participating on briefs. | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3001689/ | IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 06-2801
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAABAN HAFIZ AHMAD ALI SHAABAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 05 CR 34--John Daniel Tinder, Judge.
APPELLANT COUNSEL’S MOTION TO
WITHDRAW AND TO ALLOW MR. SHAABAN
TO PROCEED PRO SE
APRIL 24, 2008*
*
This opinion is being released initially in typescript form.
No. 06-2801 Page 2
RIPPLE, Circuit Judge (in chambers). Counsel for Shaaban Hafiz
Ahmad Ali Shaaban seeks leave to withdraw as appointed counsel for Mr.
Shaaban and asks that I permit Mr. Shaaban to proceed pro se. On
January 28, 2008, I appointed new counsel for Mr. Shaaban after
concluding that the record raised substantial doubt that his previously
appointed counsel had fulfilled adequately his obligations under the
Seventh Circuit Criminal Justice Act Plan, § V.3. United States v.
Shaaban, 514 F.3d 697, 698-99 (7th Cir. 2008) (Ripple, J., in chambers). I
directed that new counsel file either a petition for rehearing or a motion
to withdraw on the ground that any such petition would be frivolous. Id.
at 699. On February 7, 2008, the court appointed Chief Federal Defender
Richard H. Parsons in Peoria, Illinois, and Staff Attorney Andrew J.
McGowan of that office was assigned to the case.
Attorney McGowan now represents that he has identified a non-
frivolous issue that could be raised in the petition for rehearing, but he
further notes that there are possible negative consequences to raising that
issue. Mr. Shaaban has informed Mr. McGowan that he does not want
this issue to be raised. Instead, Mr. Shaaban has prepared a pro se
petition for rehearing that raises the issues that Mr. Shaaban wants to be
raised. He attempted to file his pro se petition with the court, but the
Clerk properly rejected the pro se petition because Mr. Shaaban was
represented by counsel. As a result of the disagreement regarding how
to proceed, counsel believes that there has been a breakdown in the
attorney-client relationship and moves to withdraw.
Counsel was directed to file either a petition for rehearing or a
motion to withdraw because such a petition would be frivolous. Shaaban,
514 F.3d at 699. Attorney McGowan explains that he cannot represent
No. 06-2801 Page 3
that a petition for rehearing would be frivolous because the issue he has
identified could have possible beneficial consequences, as well as possible
negative consequences. Mr. Shaaban, however, does not want this issue
to be raised. I must conclude that counsel has attempted to comply with
the court’s directive, but that Mr. Shaaban would prefer to file a pro se
petition for rehearing raising the issues that he believes should be raised.
Accordingly, I grant counsel’s motion to withdraw and permit Mr.
Shaaban to file a pro se petition for rehearing within 30 days.
IT IS SO ORDERED | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001113/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1151
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEROME L. WEATHINGTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 06 CR 66—David F. Hamilton, Judge.
____________
ARGUED OCTOBER 3, 2007—DECIDED NOVEMBER 8, 2007
____________
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Jerome Weathington pleaded
guilty to five counts of armed robbery, in violation of
18 U.S.C. § 1951(a), and one count of brandishing a fire-
arm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). After the district
court accepted his guilty plea, Mr. Weathington moved
at the sentencing hearing to withdraw it. The court
denied the motion and sentenced Mr. Weathington to
22 years’ imprisonment. On appeal, Mr. Weathington
contests the district court’s denial of his motion to with-
draw his guilty plea. For the reasons set forth in this
opinion, we affirm the judgment of the district court.
2 No. 07-1151
I
BACKGROUND
In October and November 2005, five fast-food restau-
rants in Indianapolis were robbed in a similar manner.
After each of the first four robberies, witnesses described
the perpetrators as two black males carrying guns and
wearing hoods or otherwise concealing their faces. Accord-
ing to witnesses, the men entered the restaurants,
jumped the counter, and demanded money. After the
fifth robbery, witnesses reported that one black man
carrying a gun and wearing a hooded sweatshirt, black
ski mask, black jacket, red pants, and black-and-yellow
Nike shoes entered a McDonald’s restaurant; the man
held the employees at gunpoint and left with cash from
the register and a blue bag of money from the safe, total-
ing about $2,000. Witnesses saw the robber get into a
red van.
Shortly after the last robbery, police stopped a red van
near the McDonald’s and found Mr. Weathington in the
passenger seat. Police also found in the van $2,000 in
cash, a blue bag matching the one taken from the Mc-
Donald’s, black clothing and face masks, red pants, black-
and-yellow Nike shoes, a gun and several cash-register
drawers matching the descriptions of drawers taken in
the previous robberies. The woman driving the van told
police that Mr. Weathington had robbed the McDonald’s;
another person who had acted as a lookout during the
robbery confirmed her report. A third man, who had
participated in some of the previous robberies, im-
plicated Mr. Weathington in all five robberies.
Mr. Weathington pleaded guilty to five counts of
armed robbery and one count of brandishing a firearm
No. 07-1151 3
during and in relation to a crime of violence. In exchange,
the Government promised to dismiss four additional
firearm charges. Pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), the agreement provided for a
specific sentence of 22 years’ imprisonment.
At the plea hearing, Mr. Weathington said that he had
read and understood the terms of the plea agreement and
that he had discussed it with his attorney. The court
explained four times that, if Mr. Weathington pleaded
guilty and the court accepted the plea agreement,
Mr. Weathington would receive a 22-year sentence, no
matter what the calculation under the advisory sentenc-
ing guidelines might be. The court explained that, even
if the advisory guidelines calculation in the presentence
report suggested a reduction for acceptance of responsibil-
ity, that calculation would not affect the sentence
Mr. Weathington would receive because of the specific-
term plea agreement. Mr. Weathington said he under-
stood that, if he pleaded guilty under the agreement, he
would receive a 22-year sentence. The court also asked
about Mr. Weathington’s mental state. Mr. Weathington
said he thought he needed mental health services, but he
also said that he had never received a diagnosis from a
psychiatrist, that he was feeling “all right” that afternoon
and that he was able to think clearly about his plea. Plea
Hr’g Tr. at 5-6. The court concluded that Mr. Weathington
was competent to enter an informed and intelligent guilty
plea.
At one point during the hearing, Mr. Weathington
said he wanted to continue the case so that he could have
more time to think about the plea agreement. The judge
assured him that nobody could make him plead guilty
and that he could go to trial instead, but the judge admon-
4 No. 07-1151
ished him that his decision would “be once and for all.” Id.
at 18. Mr. Weathington decided to plead guilty and said,
under oath, that he had not received any other promises
or threats to induce his plea. Mr. Weathington then ad-
mitted that he had robbed the five restaurants and bran-
dished a firearm during the last robbery. The court ac-
cepted Mr. Weathington’s guilty plea and found that he
had knowingly and voluntarily entered the plea.
At his sentencing hearing, however, Mr. Weathington
moved to withdraw his guilty plea. He argued that he
mistakenly thought he would receive a reduction in
his sentence based on his acceptance of responsibility.
He also argued that he was coerced into pleading guilty
in two ways. First, he wanted to move out of the jail in
which he had been held because it was dirty, because he
did not receive enough soap and because he had lost
visitation privileges for six months. Second, he felt pres-
sured by the Government-imposed deadline by which he
had to decide either to accept the plea agreement or to go
to trial. Additionally, Mr. Weathington argued that he
was mentally incompetent to plead guilty; in reply to the
district court’s inquiry, however, his counsel told the
court that she had no reason to doubt his competence.
The district court denied the motion to withdraw the
plea and found that Mr. Weathington had not presented
a “fair and just reason” to justify a withdrawal. Sent. Tr.
at 66. The court explained that Mr. Weathington’s contra-
diction of his prior sworn testimony that he understood
that he would receive a 22-year sentence was not a fair
and just reason to withdraw the plea. The district court
also determined that being “unhappy and uncomfortable
in jail” did not show that Mr. Weathington’s plea was
involuntary or unknowing. Id. at 66-67. Lastly, based on
No. 07-1151 5
the court’s extensive observations of, and discussions
with, Mr. Weathington, as well as defense coun-
sel’s statement that she had no reason to doubt
Mr. Weathington’s competence, the court found that
there was no “reasonable cause to believe” that Mr.
Weathington was suffering from a mental disease or
defect that rendered him incompetent at the plea hearing
or at the sentencing hearing. Id. at 70-71.
II
DISCUSSION
On appeal, Mr. Weathington submits that the district
court abused its discretion in denying his motion to
withdraw his guilty plea. We review a district court’s
denial of a motion to withdraw a guilty plea for an
abuse of discretion and review the underlying factual
findings for clear error. United States v. Walker, 447 F.3d
999, 1004 (7th Cir. 2006). A defendant may withdraw a
guilty plea before sentencing if the defendant “can show a
fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B); Walker, 447 F.3d at 1004. The defen-
dant bears the burden of demonstrating a fair and just
reason to withdraw his plea, and, after a thorough Rule 11
plea colloquy, faces an uphill battle in doing so. United
States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003).
A.
Mr. Weathington makes three arguments to support his
contention that the district court abused its discretion in
denying his motion. First, he contends that it would be
fair and just to allow him to withdraw his guilty plea
6 No. 07-1151
because he mistakenly believed that he would receive a
sentence of fewer than 22 years’ imprisonment based on a
reduction for acceptance of responsibility. We cannot
accept this contention. “Generally, the fact that a de-
fendant underestimated his sentence when entering his
plea is not a fair and just reason” to allow him to with-
draw his plea. United States v. Gilliam, 255 F.3d 428, 434
(7th Cir. 2001) (quoting United States v. Knorr, 942 F.2d
1217, 1220 (7th Cir. 1991) (holding that a defendant’s
misunderstanding that he might be subject to a four-
level increase in offense level based on his leadership
position in a drug organization was not a fair and just
reason to allow withdrawal of guilty plea)). Representa-
tions made by a defendant at a Rule 11 plea colloquy are
presumed true. Bennett, 332 F.3d at 1099. The district
court, therefore, may discredit any reason that a de-
fendant gives for withdrawing his guilty plea that con-
tradicts his testimony at a plea hearing. United States v.
Schuh, 289 F.3d 968, 975 (7th Cir. 2002); see also Walker,
447 F.3d at 1005.
The district court here conducted an exemplary plea
colloquy. The court asked questions beyond those re-
quired by Rule 11 to ensure that Mr. Weathington under-
stood the charges to which he pleaded guilty and the
sentence he would receive. It explained to Mr. Weathington
at least four times during the Rule 11 hearing that, if he
pleaded guilty, the court would sentence him to 22 years’
imprisonment under the plea agreement. The court in-
quired if Mr. Weathington understood that he and the
Government had agreed to a 22-year sentence. After
receiving affirmative answers to the questions, the court
reiterated, “So I have the option, I can accept the plea
and sentence you to 22 years in prison, or I can reject the
No. 07-1151 7
plea. And if I do that, I’d give you an opportunity to
change your mind.” Plea Hr’g Tr. at 14. Mr. Weathington
said that he understood.
The court also explained that the guidelines calcula-
tion would not affect his sentence. Mr. Weathington asked
if he would receive credit for his acceptance of responsibil-
ity. The court told Mr. Weathington that he was benefit-
ting by the Government’s agreement to drop some of the
original charges against him, but that, if Mr. Weathington
accepted the plea, “the sentence will be 22 years in prison
no matter how the guidelines get calculated.” Id. at 20.
Mr. Weathington said that he understood.
Mr. Weathington later contradicted his sworn testimony
when he claimed at the sentencing hearing that he did not
understand that he would receive a final sentence of 22
years and that the guidelines calculation would not affect
his sentence. The district court, having conducted a
thorough plea colloquy addressing just this issue, properly
credited Mr. Weathington’s statements at the plea hear-
ing when it rejected his motion to withdraw his guilty
plea. Schuh, 289 F.3d at 975; Walker, 447 F.3d at 1005.
In arguing that his mistaken belief about his sentence
should permit him to withdraw his plea, Mr. Weathing-
ton relies on United States v. Davis, 212 F.2d 264 (7th Cir.
1954). In Davis, a defendant filed a motion under
28 U.S.C. § 2255 to vacate judgment entered on a guilty
plea on the ground that his attorney had misinformed
him of the nature of the charge to which he had pleaded
guilty. Id. at 266. At the plea hearing, the district court
had not inquired at all whether the defendant under-
stood or was advised of the charges to which he was
pleading guilty. Id. at 267. On appeal, we held that Rule 11
permits the defendant to withdraw his plea when it
8 No. 07-1151
appears the plea was “made under some mistake or
misapprehension.” Id. (quotation omitted).
Davis is different from Mr. Weathington’s case in two
ways. First, in Davis, the defendant did not have notice of
the charge against him, which we found was a “serious
and substantial” mistake because a defendant’s right to
notice is granted by the Constitution and is “indispensable
to a valid plea.” Id. at 267. In contrast, the expectation of
receiving a lower sentence based on acceptance of responsi-
bility is not a constitutional right. Second, in Davis, the
defendant’s misunderstanding of the charge against him
was attributable to the failures of his attorney and the
court. Here, Mr. Weathington does not maintain that
his attorney misled him, nor could he argue that the
district court failed to ensure his understanding, given
the court’s extensive questioning during the plea colloquy.
B.
Mr. Weathington’s second argument is that his plea
was not voluntary because the poor conditions in the jail
in which he was being held, coupled with the close prox-
imity of trial, forced him to plead guilty. These are not
fair and just reasons to permit Mr. Weathington to with-
draw his guilty plea. Courts may allow defendants to
withdraw their guilty pleas if the defendants can show
they did not enter the pleas voluntarily and knowingly.
A defendant who simply asserts that his plea was not
voluntary, in contradiction of his testimony at the plea
hearing, however, faces “a heavy burden of persuasion.”
United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987).
At the plea hearing, the district court carefully assessed
whether Mr. Weathington was pleading voluntarily. When
No. 07-1151 9
Mr. Weathington said he wanted to continue the case
and not plead guilty that day, the court asked why
Mr. Weathington wanted a continuance and whether
he had talked to his counsel about his options.
Mr. Weathington said that he had spoken with counsel
but wanted more time to think about the plea agreement.
The court told Mr. Weathington that “nobody can make
you plead guilty” and explained, again, the consequences
of the plea agreement. Plea Hr’g Tr. at 10, 18. After
Mr. Weathington decided to proceed, the court asked him
if anyone had made any threats or promises to get him to
plead guilty. Mr. Weathington said no and he did not
mention either the conditions of the jail or the proximity
of his trial date.
Even though Mr. Weathington did not discuss at the
plea hearing the conditions of the jail in which he was
being held, the court allowed Mr. Weathington as much
time as he needed at the sentencing hearing to explain
how the circumstances in jail forced him to plead guilty.
He said only that he wanted to be moved to a cleaner
prison that would allow him visitation with his family. He
also protested that he had only three days to decide
whether to accept the plea agreement or to go to trial.
The district court properly concluded that
Mr. Weathington’s circumstances in jail were far from
unusual and did not make his plea involuntary. Cf.
Lunsford v. Bennett, 17 F.3d 1574, 1581 (7th Cir. 1994) (“The
Constitution does not require prison officials to provide the
equivalent of hotel accommodations or even comfortable
prisons.”). The court also correctly concluded that the
Government could impose a deadline for the plea agree-
ment and that the deadline provided sufficient time for
Mr. Weathington to make a knowing and voluntary
decision.
10 No. 07-1151
C.
Finally, Mr. Weathington contends that the district
court should have ordered a psychological examination
based on concerns he had raised about his mental health
at the plea and sentencing hearings. The district court is
required to order a hearing to determine a defendant’s
competency only when the court finds “reasonable cause
to believe” that the defendant may be suffering from a
mental disorder that makes him incompetent to the ex-
tent that he cannot understand the nature and conse-
quences of the proceedings against him or assist in his
defense. 18 U.S.C. § 4241(a); United States v. Grimes, 173
F.3d 634, 635-36 (7th Cir. 1999). The court may determine
informally whether reasonable cause exists by observing
the defendant’s demeanor and assessing his statements
during the plea colloquy and other interactions with the
court. Grimes, 173 F.3d at 636. If the preliminary inquiry
does not establish reasonable cause to believe the defen-
dant is incompetent, a hearing is not mandatory. United
States v. Graves, 98 F.3d 258, 261 (7th Cir. 1996).
The district court did not abuse its discretion in refus-
ing to order a psychological evaluation or to hold an
evidentiary hearing to determine Mr. Weathington’s
competence to plead guilty. Mr. Weathington’s behavior
did not suggest that he was incompetent, and he did not
invite the court’s attention to previous psychiatric rec-
ords or other sources showing a serious mental illness. See
Grimes, 173 F.3d at 636. Mr. Weathington informed the
court that he had suffered from narcolepsy and was
seeking mental health services in jail because he thought
he had a problem that caused him to commit crimes;
however, upon further questioning by the court, Mr.
Weathington said that he felt “all right” that afternoon
No. 07-1151 11
and that he was able to think clearly about his guilty plea.
Plea Hr’g Tr. at 5-6. Throughout the rest of the hearing,
Mr. Weathington provided cogent answers to the court’s
questions and engaged in discussion with the court about
options other than prison and about the consequences if
he did not plead guilty. Finally, Mr. Weathington con-
cedes that neither he nor his attorney suggested that his
mental problems affected his competence to plead guilty.
In fact, Mr. Weathington’s attorney said that she had “no
reason to doubt his competence or sanity.” Sent. Tr. at 70.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-8-07 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000441/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2007
Decided April 2, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1592
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 02 CR 37
ULICE ASKEW,
Defendant-Appellant. Elaine E. Bucklo,
Judge.
ORDER
Ulice Askew was convicted after a jury trial of conspiracy to possess and
distribute a mixture containing PCP, 21 U.S.C. §§ 846, 841(a)(1); attempted
possession for distribution of a mixture containing PCP, id.; and using a
communication facility to facilitate the commission of a drug felony, id. § 843(b). In
June 2003 he was sentenced to a total of 210 months’ imprisonment, the low end of
the guidelines range. We affirmed his convictions on direct appeal but issued a
limited remand under United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.
2005), to learn whether the district court would have imposed the same sentence
under an advisory regime. United States v. Askew, 403 F.3d 496 (7th Cir. 2005).
The district court replied that it was unsure whether it would have imposed a
No. 06-1592 Page 2
different sentence, so we vacated the sentence and remanded for resentencing.
United States v. Askew, 417 F.3d 648 (7th Cir. 2005) (per curiam). The district
court, relying on its discretion under United States v. Booker, 543 U.S. 220 (2005),
imposed a below-guidelines sentence of 172 months’ imprisonment. Askew now
appeals that sentence, but his appointed counsel moves to withdraw because she
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.
738 (1967). We invited Askew to respond to counsel’s motion, see Cir. R. 51(b), and
he has done so. Our review is limited to the potential issues identified in counsel’s
facially adequate brief and in Askew’s response. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).
Several issues were contested at the second sentencing. The jury had
returned special verdicts finding Askew personally responsible for less than 100
grams of a mixture containing PCP on the conspiracy count, and between 100
grams and a kilogram of such a mixture on the attempted-possession count. These
findings triggered a maximum prison term of 40 years on the latter count. See 21
U.S.C. § 841(b)(1)(B)(iv). At the original sentencing, however, the district court had
credited the testimony of Askew’s drug supplier and found that Askew was
responsible for approximately eight kilograms of PCP mixture. The district court
also had imposed an upward adjustment under U.S.S.G. § 3C1.1 for obstruction of
justice because Askew, in the court’s opinion, had testified falsely at trial. At
resentencing the court declined Askew’s request to reconsider these findings, but it
did hear arguments from both parties regarding the sentencing factors set forth in
18 U.S.C. § 3553(a). The court imposed a sentence of 172 months, 38 months below
the low end of the 210- to 262-month range.
In her Anders submission, counsel first discusses two findings made by the
district court in applying the guidelines: the drug quantity and obstruction of
justice. Both findings were made at the original sentencing but left unchallenged
during Askew’s initial appeal. Counsel concludes that an argument about either
finding would be frivolous in this appeal because neither is clearly erroneous. See
United States v. Romero, 469 F.3d 1139, 1147 (7th Cir. 2006); United States v.
Davis, 442 F.3d 1003, 1008 (7th Cir. 2006). But these findings could have been
contested during the initial appeal, and so any argument about them was waived
and thus is beyond the scope of our remand. See United States v. Husband, 312
F.3d 247, 250-51 (7th Cir. 2002); United States v. Morris, 259 F.3d 894, 898 (7th
Cir. 2001) (“[P]arties cannot use the accident of remand as an opportunity to reopen
waived issues.”). These potential issues that counsel identifies therefore would not
even be properly before us.
Counsel and Askew then consider arguing that the district court violated the
dictates of Booker at resentencing by setting the base offense level and the
mandatory minimum sentence (of 10 years) based on a fact (the drug quantity) not
No. 06-1592 Page 3
found by the jury. This potential issue would be properly before us but counsel is
correct to call it frivolous. We have said repeatedly that Booker does not prevent a
sentencing judge from making factual findings that increase the guidelines range.
E.g., United States v. Hawkins, Nos. 05-4311 & 05-4243, slip. op. at 3 (7th Cir. Mar.
9, 2007); United States v. Harrison, 431 F.3d 1007, 1014 (7th Cir. 2005). And the
well-settled rule that mandatory minimums do not implicate the rule of Apprendi v.
New Jersey, 530 U.S. 466 (2000), remains intact after Booker. See Harris v. United
States, 536 U.S. 545, 568 (2002); United States v. Duncan, 413 F.3d 680, 683 (7th
Cir. 2005).
Counsel finally considers whether Askew could challenge the reasonableness
of his new, lower prison sentence. We agree with counsel that such a challenge
would be frivolous. We have noted that “[i]t is hard to conceive of below-range
sentences that would be unreasonably high,” United States v. George, 403 F.3d 470,
473 (7th Cir. 2005), and Askew’s sentence would not be one of the rare exceptions.
We would draw the same conclusion even if we gave no special weight to the length
of the sentence relative to the guidelines range. Cf. United States v. Rita, No.
05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted, 75 U.S.L.W 3246
(U.S. Nov. 3, 2006) (No. 06-5754). The district court gave meaningful consideration
to the factors set forth in 18 U.S.C. § 3553(a), see United States v. Laufle, 433 F.3d
981, 987 (7th Cir. 2006), and counsel is unable to articulate any basis for arguing
that the sentence imposed is unreasonable.
Accordingly, the motion to withdraw is GRANTED and the appeal is
DISMISSED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000443/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2007
Decided April 2, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3903
RAMON HAYES, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 C 0540
CINGULAR WIRELESS LLC, et al.,
Defendants-Appellees. Charles R. Norgle, Sr.,
Judge.
ORDER
In this case, which has been marked by procedural missteps and confusion,
Ramon Hayes appeals from the denial of two post-judgment motions. We affirm.
Hayes, through his company, Portablecomm, Inc., sold wireless services for
Cingular Wireless LLC from 1997 to 2002. In 2004 Hayes and three co-plaintiffs
(not parties to this appeal) sued Cingular and its parent companies, SBC
Communications Inc., and BellSouth Corp., alleging that Cingular committed
common law fraud, violated contractual provisions, and discriminated against them
because they are African-American. Each of the three defendants moved to dismiss
the complaint under Rule 12(b)(6) for failure to state a claim. In March 2004 the
district court dismissed the action, but granted plaintiffs leave to file an appropriate
No. 05-3903 Page 2
motion to vacate the dismissal, setting forth any existing good cause why the
dismissal orders should be vacated under Federal Rules of Civil Procedure 59(e) or
60(b). Plaintiffs did not file any such motion or provide any sound basis with which
to vacate the dismissal orders. Instead, they filed a series of motions and papers
directed at the already-granted motions to dismiss. In response to these filings, the
district court set a final deadline of January 14, 2005 for plaintiffs to file any proper
motion under Rule 60(b) for relief from the March 2004 judgment. The district
court also granted plaintiffs’ counsel leave to withdraw and Hayes leave to proceed
pro se.
Hayes did not file any motions by the court’s January 2005 deadline. In
February, however, a notice of appeal was filed by Hayes’s former counsel on behalf
of Hayes and his co-plaintiffs. Three days later, Hayes filed a pro se motion
purportedly under Rule 59(e) motion seeking to alter or amend the court’s
judgment. The district court struck that motion in July 2005 for filing it after
already having filed a notice of appeal. In March we allowed Hayes to voluntarily
dismiss the appeal. Finally, in August 2005, Hayes filed a motion seeking
reconsideration of the court’s July 2005 order. But he did not notice the motion for
presentment, see N.D. Ill. L. R. 5.3(b), serve defendants’ counsel, or file a certificate
of service, and so in August 2005, the district court struck that motion as well.
Hayes then filed a notice of appeal. In August 2006, we issued a briefing schedule,
and noted that this appeal was timely only as to the July 2005 order striking the
motion to amend judgment and the August 2005 order striking the motion to
reconsider.
Hayes’s appellate brief, however, focuses only on the district court’s dismissal
of his underlying complaint. We lack jurisdiction to consider his arguments because
Hayes did not timely appeal the district court’s orders dismissing his complaint.
See Fed. R. App. P. 4(a)(1)(A); Talano v. Northwestern Med. Faculty Found., Inc.,
273 F.3d 757, 760 (7th Cir. 2001). Furthermore, by failing to address the only two
orders to which this appeal is limited, Hayes has waived any challenge to those
orders. See Luellen v. City of East Chicago, 350 F.3d 604, 612 n.4 (7th Cir. 2003).
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000460/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 26, 2007*
Decided March 27, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 07-1194
PATRICK B. KOMESHAK, D.C., Appeal from the United States District
d/b/a KOMESHAK CHIROPRACTIC Court for the Southern District of Illinois
and THOMAS L. KALTENBRONN,
D.C., individually and on behalf of No. 06 C 193
others similarly situated,
Plaintiffs-Appellees, David R. Herndon,
Judge.
v.
RISK ENTERPRISE
MANAGEMENT SERVICES, INC.,
Defendant-Appellant.
ORDER
Chiropractors Patrick Komeshak and Thomas Kaltenbronn filed suit on
behalf of a putative class on February 14, 2005–four days before the effective date of
the Class Action Fairness Act of 2005, (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 07-1194 Page 2
(2005). They erroneously named Risk Enterprise Management Services, Inc. as
defendant in the complaint and erroneously listed Ronald Gage as agent for the
defendant. The actual name of the organization plaintiffs were attempting to sue is
Risk Enterprise Management Limited (“REML”) which has no affiliation with
Ronald Gage. (Ronald Gage is listed in the Illinois Secretary of State’s corporation
database website as the registered agent for REM Services, Inc., an unrelated
company that is dissolved.) The plaintiffs attempted to serve process on REML
through Ronald Gage seven times between March 9, 2005 and March 14, 2005, but
were unsuccessful each time because of their error.
The plaintiffs took no further action until October 2005 when they attempted
to serve REML’s correct corporate agent–CT Corporation. But CT Corporation
twice refused service because the plaintiffs still listed the incorrect name for REML.
On December 28, 2005, the state court corrected the name on the docket sheet and
on February 7, 2006, the plaintiffs perfected service. REML removed the case to
federal court in March 2006, arguing that the December 28, 2005 amendment of the
defendant’s name commenced a new case for CAFA purposes. The plaintiffs filed a
motion to remand the case to state court arguing that the amendment relates back
to the original filing date and thus precedes CAFA’s February 18, 2005 effective
date. The district court agreed and remanded the case to state court. On January
23, 2007, we granted REML’s petition for permission to appeal.
State procedural law determines whether substituting a party in a state case
commences a new case. See Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir.
2006). In this case, the determination turns on whether the plaintiffs exercised
reasonable diligence to obtain service on REML. See 735 Ill. Comp. Stat. 5/2-616(d);
Ill. Sup. Ct. R. 103(b). To determine whether a plaintiff has exercised reasonable
diligence, Illinois courts look to the length of the delay, the plaintiff’s activities,
whether the plaintiff is aware of the defendant’s location, whether the defendant’s
location could be easily ascertained, actual knowledge of the complaint on the part
of the defendant, special circumstances affecting the plaintiff’s efforts, and actual
service on the defendant. See Segal v. Sacco, 136 Ill. 2d 282, 287 (1990).
We cannot agree with the district court’s determination that the plaintiffs
exercised reasonable diligence during the year that they attempted to serve REML.
After the plaintiffs failed to serve REML in March 2005, there is no record that they
made any attempt to discover REML’s correct information for seven months.
Indeed, when they did attempt to serve REML’s correct agent in October 2005, they
again attempted to serve process using the incorrect name for REML. Further, the
record demonstrates that the plaintiffs had access to REML’s correct name all along
in the form of checks they received as payment from REML. Any additional
information–including the agent’s name and address–was readily available at the
Illinois Secretary of State’s corporation database. Accordingly, the judgment of the
No. 07-1194 Page 3
district court is REVERSED and the case is REMANDED with instructions to
DENY the plaintiffs’ motion to remand. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000496/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 3, 2007*
Decided May 11, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 07-1039
DANIEL AGUILAR, Appeal from the United States District
Petitioner-Appellant, Court for the Eastern District of
Wisconsin
v. No. 05-C-1269
JEFFREY ENDICOTT, Lynn Adelman,
Respondent-Appellee.** Judge
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
**
Petitioner Aguilar was transferred to the Redgranite Correctional Institution
after this appeal was filed. Although the state did not comply with Fed. R. App.
P. 23 or Cir. R. 43, we have noted the change in custody and substituted Jeffrey
Endicott, the warden at Redgranite, as the respondent.
No. 07-1039 Page 2
ORDER
After finding Wisconsin inmate Daniel Aguilar guilty of battery and possession of
a weapon, a prison disciplinary committee revoked 180 days’ good-time credit and
imposed 360 days in segregation. Aguilar petitioned the district court for a writ of
habeas corpus under 28 U.S.C. § 2254. He claimed that the Wisconsin Department of
Corrections lacked authority to discipline him because the misconduct occurred at a
contract facility in another state, and that he was denied due process at his disciplinary
hearing. The district court denied Aguilar’s petition, and we affirm.
For our purposes, we accept as true the factual findings of the Wisconsin courts.
See 28 U.S.C. § 2254(e)(1). In July 2003, Aguilar was involved in a fight at the privately
run prison in Oklahoma where he was serving his Wisconsin sentence. The next day,
Aguilar was transferred to the Stanley Correctional Institution (SCI) in Wisconsin, and
the Oklahoma facility subsequently sent an incident report to officials at SCI detailing
Aguilar’s fight. SCI staff then searched Aguilar’s cell and found two letters in which he
describes the incident in Oklahoma as a “blood bath,” and laments that he failed to
cause “permanent damage.” SCI staff issued a conduct report about the fight, stating
that Aguilar had attacked another prisoner with a padlock wrapped in a white cloth.
The conduct report charged Aguilar with battery and weapon possession, and listed the
incident report from Oklahoma and the letters found in his cell as evidence. Officials at
SCI notified Aguilar of the date of his disciplinary hearing and sent him a copy of the
conduct report 11 days prior to that hearing. The disciplinary committee found Aguilar
guilty of the charges. After exhausting his state-court remedies, he turned to federal
court.
On appeal Aguilar presses the same claims he raised in the district court. First,
he argues that the Wisconsin Department of Corrections lacked “jurisdiction” to
sanction him for conduct that occurred in the Oklahoma facility. But we have explained
that principles of comity, federalism, and judicial efficiency preclude the federal courts
from reaching the merits on collateral review when the claim was presented to the state
courts and decided on the basis of independent and adequate state-law procedural
grounds. Garth v. Davis, 470 F.3d 702, 714 (7th Cir. 2006). Here, the Wisconsin Court
of Appeals determined that under state law the Wisconsin Department of Corrections
had the authority to decide how to discipline Aguilar for the Oklahoma incident because
the Oklahoma facility had not disciplined him first. State ex rel. Aguilar v. Frank,
No. 2004AP2865 (Wis. Ct. App. July 28, 2005); see WIS. ADMIN. CODE § 303.01(1);
see also Blango v. Thornburgh, 942 F.2d 1487, 1491 (10th Cir. 1991) (noting that state
did not waive jurisdiction over habeas petitioner by transferring him to another
facility). Wisconsin did not lose jurisdiction over Aguilar simply because he crossed
state lines; his discipline was governed by Wisconsin state law so long as he continued
to serve his Wisconsin prison sentence. Thus, Aguilar’s first argument presents no issue
of federal law that would qualify him for relief under § 2254.
No. 07-1039 Page 3
Aguilar next contends that the state court’s resolution of his due process claim
runs afoul of Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Aguilar had alleged
that he was not given sufficient notice of his disciplinary hearing, did not have the
opportunity to present live witnesses, was found guilty without sufficient evidence, and
did not receive adequate assistance from his lay advocate. The Wisconsin Court of
Appeals rejected each contention; that court held that Aguilar received timely notice of
the charges in writing, was properly limited to written statements instead of live
testimony because his relevant witnesses were unavailable, and received a written
explanation for the discipline that is supported by the Oklahoma incident report, two
witness statements, and the two letters in which Aguilar admits his culpability.
See Wolff v. McDonnell, 418 U.S. 539, 556, 564, 570-71 (1974); Superintendent, Mass.
Corr. Inst. v. Hill, 472 U.S. 445, 454-55 (1985).
We cannot say that the state court unreasonably applied Wolff and Hill, which
govern Aguilar’s due process claim. The Supreme Court held in Wolff that an inmate
must be given written notice of disciplinary charges at least 24 hours in advance, 418
U.S. at 564, and Aguilar received 11 days’ notice. The Court also held that an inmate
should be allowed to call live witnesses if they can provide relevant testimony without
jeopardizing the institution’s safety or correctional goals. Id. at 566. But as the state
court found, the proposed witnesses who could testify about the fight were no longer
employed by the Oklahoma facility (it had closed), and Aguilar wanted to call three
other witnesses simply to elicit testimony about rules and regulations having nothing to
do with the charges. Moreover, the state court appropriately analyzed the strength of
the evidence under the “some evidence” standard of Hill, 472 U.S. at 455. Finally, the
Wisconsin Court of Appeals recognized that Wolff holds that an inmate is not entitled to
any assistance at disciplinary proceedings if he is literate and the case is not complex.
See Wolff, 418 U.S. at 569-70; see also Baxter v. Paligiano, 425 U.S. 308, 315 (1976)
(holding that prisoners do not have a constitutional right to counsel at disciplinary
hearings); Wallace v. Tilley, 41 F.3d 296, 301 (7th Cir. 1994) (same). The state court
applied Wolff and concluded that, because Aguilar is literate and his case was
straightforward, his advocate’s help during the proceedings—no matter how inadequate
Aguilar thought it to be—was more than the Constitution required. This application of
Wolff was not unreasonable.
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000502/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4608
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GENENDO PHARMACEUTICAL, N.V.,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 6495—James F. Holderman, Chief Judge.
____________
ARGUED SEPTEMBER 6, 2006—DECIDED MAY 10, 2007
____________
Before ROVNER, EVANS, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. This case involves Genendo
Pharmaceutical’s attempt to import prescription drugs
intended for sale in other countries into the United
States for repackaging and distribution. Genendo main-
tains that the importation is authorized pursuant to
certain statutory exemptions for drugs being repackaged
within the United States. The district court disagreed, and
granted the United States’ motion for seizure and con-
demnation of the drugs, as well as a permanent injunc-
tion barring further importation.
2 No. 05-4608
I.
Genendo, located in Curaçao, Netherlands Antilles,
purchases, trades, and sells pharmaceuticals. One portion
of its business includes obtaining prescription drugs
overseas and importing them into the United States for
resale. Some of the drugs it imports were originally
intended for sale outside of the United States. As relevant
here, in September 2003, Genendo imported 60 boxes of
prescription Lipitor containing 10 milligram tablets of
Lipitor, and 48 boxes containing 20 milligram tablets of
Lipitor.1 Lipitor is manufactured by Pfizer, Incorporated
and is used to treat high cholesterol. Genendo purchased
the Lipitor in Brazil in order to import it into the United
States.
Before importing the Lipitor, Genendo filed an action
for a declaratory judgment that its importation of Lipitor
was permissible under the Federal Food, Drug, and
Cosmetic Act (“the FDCA”). 21 U.S.C. §§ 301-399. The
United States successfully moved to dismiss the action on
the grounds that there was not yet an agency action ripe
for review. Several months later, Genendo imported, and
the government seized, the Lipitor.
At issue is whether the seized Lipitor is an “unapproved
new drug,” see 21 U.S.C. § 355(a), because it does not
comply in certain respects with the existing FDA-approved
New Drug Application for Lipitor. The new drug approval
process is one piece of the FDCA’s comprehensive scheme
regulating the manufacture, sale, and importation of
prescription drugs. Before a drug is introduced into
interstate commerce, a drug manufacturer must obtain
FDA approval (specific to each drug and each manufac-
1
The action initially also involved 24,990 tablets of 40 milligram
Zocor (another cholesterol-lowering drug).
No. 05-4608 3
turer) of the manufacturing process, labeling, and packag-
ing of the drug. 21 U.S.C. § 355(b)(1). The approval process
addresses the drug’s safety and effectiveness, id.
§ 355(b)(1)(A), its chemical composition, id. § 355(b)(1)(B),
and how it is distributed—i.e., “the methods used in, and
the facilities and controls used for, the manufacture,
processing, and packing” and the proposed labeling for the
drug, id. §§ 355(b)(1)(D) & (F). Thus, before gaining FDA
approval for Lipitor as a “new drug” under the FDCA, see
21 U.S.C. § 321(p), Pfizer submitted a New Drug Applica-
tion (“NDA”) which contains, among other things, detailed
specifications regarding the drug’s manufacture and
packaging. See 21 U.S.C. § 355(a) (stating necessity of an
approved new drug application).
As relevant here, the NDA for Lipitor specifies the
following relating to its manufacture and packaging for
sale in the United States: (1) the Lipitor must be manufac-
tured at a Pfizer facility in Loughbeg, Ireland; (2) it must
be packaged in either Frieburg, Germany or Vega Baja,
Puerto Rico; (3) it must be packed in 100-tablet boxes
containing ten blister cards of ten tablets each; and (4) it
must be labeled in English. Additionally, the NDA pro-
vides for a two-year expiration period for Lipitor distrib-
uted in the United States.
At the time the United States seized the Lipitor im-
ported by Genendo, it deviated from the FDA-approved
NDA in several important respects. First, although it
was manufactured in the listed Pfizer facility in Ireland,
it was packaged at a facility in São Paulo, Brazil, instead
of one of the NDA-approved facilities in Frieburg, Ger-
many or Vega Baja, Puerto Rico. Secondly, it was pack-
aged in boxes containing thirty tablets, housed on three
blister sheets of ten tablets each, and labeled, not in
English, but in Portuguese. Lastly, the seized lots of
Lipitor were manufactured in January 2003 and February
2003, and bore expiration dates of January 2006 and
February 2006, respectively—three years after the manu-
4 No. 05-4608
facture date, as opposed to the two-year period required
by the NDA.
Genendo believes these deviations from the requirements
in the FDA-approved NDA are excused by 21 U.S.C.
§ 353(a) and its implementing regulation, 21 C.F.R.
§ 201.150. Genendo claims § 353(a) establishes an exemp-
tion from all labeling and packaging requirements in the
FDCA, including the NDA requirements, so long as a drug
is en route to or being held at an authorized drug
repackager. Section 353(a), titled in part “Exemptions
and consideration for certain drugs,” provides as follows:
(a) Regulations for goods to be processed, labeled, or
repacked elsewhere
The Secretary is directed to promulgate regulations
exempting from any labeling or packaging requirement
of this chapter drugs and devices which are, in accor-
dance with the practice of the trade, to be processed,
labeled, or repacked in substantial quantities at
establishments other than those where originally
processed or packed, on condition that such drugs
and devices are not adulterated or misbranded under
the provisions of this chapter upon removal from such
processing, labeling, or repacking establishment.
21 U.S.C. § 353(a).
The regulation promulgated is 21 C.F.R. § 201.150, which
provides in pertinent part that a drug that will be repack-
aged “shall be exempt, during the time of introduction into
and movement in interstate commerce and the time of
holding in such establishment, from compliance with the
labeling and packaging requirements of sections 501(b)
and 502(b), (d), (e), (f), and (g) of the act” if, among other
things, there exists a written agreement—known as a
§ 201.150 agreement—that ensures the ultimate drugs
will not be adulterated or misbranded. See 21 C.F.R.
§ 201.150(a)(2).
No. 05-4608 5
At the time it was seized, the imported Lipitor was
destined for the Illinois corporation Phil & Kathy’s, an
FDA-registered repacker and labeler. Genendo had a
written § 201.150 agreement with Phil & Kathy’s for the
repacking and labeling of drugs for sale in the United
States. Before trial, the government filed a seizure action
for certain drugs held at Phil & Kathy’s, and Phil &
Kathy’s entered into a consent decree resolving the gov-
ernment’s claims against it. Although the government
also contended in the district court that Genendo’s
§ 201.150 agreement with Phil and Kathy’s was inade-
quate, the court did not reach that issue.
Instead, the district court held a one-day trial, and
ultimately ruled on the basis of the uncontested facts
that by importing the Lipitor,2 Genendo had introduced
unapproved new drugs into interstate commerce in
violation of 21 U.S.C. § 355(a). The court concluded that
reading the exemption in § 353(a) as Genendo proposed
would eviscerate the protections afforded by the new drug
approval process. It thus attempted to harmonize the
requirements of the new drug approval process and the
§ 353(a) exemption by reading the “labeling and packaging
requirements” referred to in § 353(a) to apply to general
“labeling and packaging,” but not the detailed require-
ments for packaging set forth in the NDA, which the
court concluded were not affected by the exemption in
§ 353(a). The court also granted the government’s request
for condemnation of the drugs and injunctive relief.
2
The district court also concluded that the seized Zocor was an
unauthorized new drug, but Genendo does not appeal that
conclusion.
6 No. 05-4608
II.
The sole issue on appeal is whether the seized Lipitor is
an unapproved “new drug.” See 21 U.S.C. § 355(a). Since
Genendo admits that the seized Lipitor was not completely
compliant with the NDA at the time it was seized, the
only relevant question is whether, as Genendo main-
tains, § 353(a) exempts it from compliance with the NDA.
This is a question of statutory interpretation subject to de
novo review. See Disability Rights Wis., Inc. v. Wis. Dep’t
of Pub. Instruction, 463 F.3d 719, 724 (7th Cir. 2006). The
FDA argues that the labeling and packaging require-
ments contained in the NDA are a critical piece of the
new drug approval process and must be adhered to at all
stages of the drug’s production and distribution, and that
§ 353(a) does not change that. Genendo, however, contends
that because the Lipitor was en route to an authorized
repackager at the time it was seized, it is exempt from
all labeling and packaging requirements, including all of
those contained in the NDA.
As a threshold matter, we must determine the level of
deference to be accorded the FDA’s interpretation of
§ 353(a). As the agency that administers the statute, the
FDA claims that its interpretation is entitled to Chevron
deference. See Chevron U.S.A., Inc. v. Natural Res. Def.
Counsel, Inc., 467 U.S. 837 (1984) (explaining deference
due agency’s interpretation of statute it administers).
Genendo, however, claims that the unambiguous lan-
guage of § 353(a)—directing the Secretary to promulgate
regulations exempting certain drugs from “any labeling or
packaging requirement of this chapter”—compels the
conclusion that the Lipitor is exempt from all labeling
and packaging requirements—including those contained
in the NDA. According to Genendo, any other interpreta-
tion flies in the face of the plain statutory language and
is thus undeserving of our deference. In determining
No. 05-4608 7
what level of deference to afford the FDA’s interpretation,
we ask first whether Congress has spoken to the precise
question at issue. Chevron, 467 U.S. at 842-43. Genendo
claims that it has done so in the form of § 353(a), and that
the phrase “any labeling and packaging requirement”
necessarily ends the matter.
But § 353(a) simply directs “the Secretary” to promulgate
regulations exempting drugs en route to a repackager
from labeling and packaging requirements; it does not
itself provide for a complete exemption. See Arner Co. v.
United States, 142 F.2d 730, 736 (1st Cir. 1944) (“Had
Congress intended an outright exemption of bulk ship-
ments from the labeling requirement without restrictive
terms of any sort, there would have been no need for it to
provide for regulations formulating the exemption; the
law would have simply stated the exemption.”). The
problem with Genendo’s argument is that it largely ignores
the fact that the promulgated regulation, § 201.150, sets
forth specific labeling and packaging requirements from
which drugs being repackaged are exempt. The particular
sections of the FDCA referenced in § 201.150 relate to the
requirement that the package contain the name and
address of the manufacturer or distributor, a statement
of the quantity of the contents, the established name of
the drug, active and inactive ingredients, and adequate
warnings and directions for use. See 21 U.S.C. §§ 351(b),
352(b), (d), (e), (f), and (g). Section 201.150 thus does not
exempt drugs in transit to or at a repackager from all
labeling and packaging requirements in the Act, as
Genendo suggests—simply those listed.
Thus the statute is not so crystal clear as Genendo
insists. Genendo’s argument flows from an unstated belief
that the word “any” in § 353(a) necessarily means “all.”
But that is not so. On the contrary, the first definition
given for the word any is “one, a, an, or some.” Webster’s
8 No. 05-4608
Unabridged Dictionary of the English Language 96 (2d ed.
2001). Although the statute could be read as if any meant
all (the fourth possible definition given for the word “any”),
it could also be read to give effect to the aforementioned
definition of “any”—as directing the Secretary to promul-
gate regulations exempting drugs in transit to a
repackager from some labeling and packaging require-
ments contained in the FDCA. See First Bank & Trust v.
Firstar Info. Servs., Corp., 276 F.3d 317, 325-26 (7th Cir.
2001) (rejecting argument that phrase “any services” in
contract necessarily meant “all services” and concluding
that phrase was ambiguous). Given that § 201.150 ex-
empts drugs in transit only from specified labeling and
packaging requirements, the Secretary apparently under-
stood it to mean the latter.3
3
After argument, Genendo filed a letter of supplemental
authority pursuant to Federal Rule of Appellate Procedure 28(j),
calling the panel’s attention to the recently decided Supreme
Court case Massachusetts v. E.P.A., 127 S. Ct. 1438 (2007). In
Massachusetts, the Court interpreted the phrase “any air pol-
lutant” in the Clean Air Act to include carbon dioxide, reasoning
in part that the use of the word “any” suggested that the statute
was intended to require regulation of all air pollutants. Genendo
argues that Massachusetts stands for the proposition generally
that the use of the word “any” in a statute necessarily means
“all.” Massachusetts, however, is not so broad. First, the Court’s
interpretation of the phrase “any air pollutant” was guided by
the Clean Air Act’s “sweeping definition of ‘air pollutant,’ ” a
definition that embraced “all airborne compounds of whatever
stripe . . . through the repeated use of the word ‘any.’ ” Id. at 1460
(emphasis added). The exemption in § 353(a) has no such
“sweeping” language, nor does it contain anything else to
convince us that the word “any” necessarily means “all.” Nor does
Massachusetts itself stand for such a proposition. Indeed, the
Court cited with approval Dep’t of Hous. & Urban Dev. v. Rucker,
535 U.S. 125 (2002), where it observed that the word “any” “has
(continued...)
No. 05-4608 9
Reading the statute in isolation, Genendo’s interpreta-
tion may be a plausible one, but so too is the FDA’s,
particularly in light of the “ ‘well-accepted principle that
remedial legislation such as the Food, Drug, and Cosmetic
Act is to be given a liberal construction consistent with the
Act’s overriding purpose to protect the public health.’ ”
United States v. Baxter Healthcare Corp., 901 F.2d 1401,
1408 (1990) (quoting United States v. Article of Drug . . .
Bacto-Unidisk . . ., 394 U.S. 784, 798 (1969)). In short,
there is enough ambiguity in the statute that we ask
only whether the FDA’s interpretation is based on a
permissible construction of the statute. Chevron, 467 U.S.
at 843. Section 201.150’s provision exempting drugs
in transit from only certain labeling and packaging
requirements is a permissible exercise of the authority
delegated by the statute, and is consistent with the
public health concerns animating the new drug approval
process and the FDCA as a whole. See id. at 843, 866
(agency’s interpretation comporting with purposes of
underlying Clean Air Act Amendments is permissible
given ambiguity in statute). Thus, unless the regulation
(and the FDA’s interpretation of it) is “arbitrary, capri-
cious, or manifestly contrary to the statute,” we will defer
to it. Id. at 843-44.
We cannot say that the FDA’s interpretation of the
regulation and statute is “arbitrary, capricious, or mani-
festly contrary to the statute.” Id. at 843. Indeed, the
FDA’s interpretation makes good sense given that
§ 201.150 enumerates particular labeling and packaging
3
(...continued)
an expansive meaning, that is, one or some, indiscriminately of
whatever kind.” (emphasis added). Massachusetts interpreted
a particular statute in an entirely different context, and con-
cluded that in that case, “any” meant “all.” The Court’s holding
does not in any way imply that in every case “any” means “all.”
10 No. 05-4608
requirements from which drugs in transit are exempt,
and the NDA requirements are not among those enumer-
ated. This understanding of the statute and regulation
together is in keeping with our observation in Baxter that
the new drug approval process “illustrates a congressional
view that the way in which drugs are mixed and packaged
is no less important than the chemical makeup of the
drugs at issue,” 901 F.2d at 1411. As the FDA points out,
this precise packaging operation is subject to compromise
if Genendo is given carte blanche to disregard the specifi-
cations in the NDA. Genendo maintains that the require-
ment in both § 353(a) and § 201.150 that the ultimate
repackaged drugs cannot be adulterated or misbranded
protects the consumer from any deviations from the NDA
that occur before the drugs are repackaged. But even
assuming a flawless repackaging process at Phil & Kathy’s
pursuant to a satisfactory § 201.150 agreement (an
assumption the government contests), certain deviations
from the NDA’s requirements are never rectified despite
the repackaging. Notably, the fact that the Lipitor was
packaged at an unapproved facility in Brazil can never
be brought into compliance with the NDA (unlike the
other deviations from the NDA such as the Portuguese
labeling, improper expiration dates, and numbers of
tablets in blister packs, which could theoretically be
later rectified). It would be odd indeed for the FDA to go
to such lengths to set up the process whereby facilities
are approved for packaging new drugs, and yet allow
drugs that will be repackaged to be packaged in an
unapproved facility. If such a result were intended, we
believe that the statute and accompanying regulation
would say so explicitly.
Genendo’s reliance on a Third Circuit case, United States
v. Kaybel, 430 F.2d 1346 (3d Cir. 1970), does not convince
us otherwise. In Kaybel the court overturned a wholesale
drug distributor’s conviction for introducing an unap-
No. 05-4608 11
proved new drug into interstate commerce. The court in
Kaybel rejected the government’s claim that the distributor
needed to obtain approval of an additional new drug
application before repacking a drug that complied in all
respects with an already approved NDA from 500-unit
bottles into 100-unit bottles. Id. at 1347. Not only does
Kaybel not deal with the exemption provision in § 353(a),
its application to Genendo’s situation is further limited
by the fact that the distributor in Kaybel was repackaging
a drug that was compliant in all respects with the NDA,
not attempting to remedy noncompliance through re-
packaging. In short, we think Kaybel is far less applicable
than Genendo believes. Moreover, the primary rationale
in Kaybel—that other mechanisms exist to prevent con-
tamination of drugs by repackagers—does not extend to
the situation where drugs are first packaged at an unap-
proved facility that lacks the FDA oversight of the packag-
ing facilities listed in the NDA. See In re Canadian Imp.
Antitrust Litig., 470 F.3d 785, 789-90 (8th Cir. 2006)
(explaining importance of FDA oversight and FDCA
labeling requirements in excluding “noncompliant and
potentially unsafe pharmaceuticals”).
The FDA’s interpretation of § 353(a) and § 201.150 is
entitled to deference, and it is neither arbitrary nor
capricious. Although § 353(a) may have been interpreted
as Genendo suggests, it is also open to the construction
provided by the FDA, and that construction is entitled to
deference under Chevron and is consistent with the
language of § 201.150. It also comports with the underly-
ing purposes of the FDCA, which exists to protect aspects
of “the lives and health of people which, in the circum-
stances of modern industrialism, are largely beyond self-
protection.” Arner, 142 F.2d at 736; see also Canadian
Import, 470 F.3d at 790 (labeling requirements are
“manifestation of a congressional plan to create a ‘closed
system’ designed to guarantee safe and effective drugs
12 No. 05-4608
for consumers in the United States”). In sum, the exemp-
tion in § 353(a), as implemented by § 201.150, does not
excuse compliance with an FDA-approved NDA, and thus
the seized Lipitor, which Genendo concedes is noncom-
pliant, is an unapproved new drug. See 21 U.S.C. § 355(a).
III.
For the foregoing reasons, we affirm the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-07 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000503/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4105
DIMAS ANTONIO MORENO-CEBRERO,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
On Petition to Review an Order
of the Board of Immigration Appeals.
No. A11-125-754
____________
ARGUED SEPTEMBER 21, 2006—DECIDED MAY 10, 2007
____________
Before BAUER, CUDAHY, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Dimas Antonio Moreno-Cebrero
is facing removal from the United States because he has
been convicted of an aggravated felony. Although he
recognizes that this is indeed a valid ground of removal,
Moreno is seeking the opportunity to apply for a waiver
under § 212(c) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1182(c) (1994). The Immigration Judge
(IJ) found him ineligible because § 212(c) bars relief for
an individual “convicted of one or more aggravated felonies
and [who] has served for such a felony or felonies a term
of imprisonment of at least 5 years.” Moreno, she found,
2 No. 05-4105
met both of those conditions. The Board of Immigration
Appeals (BIA) affirmed without opinion.
In assessing the question whether Moreno met the five-
year requirement, the IJ decided that the statute required
her to include the time that Moreno spent in jail await-
ing trial. Moreno was not granted bail before trial, and in
calculating the amount of time he was to remain in
custody after his conviction, the Bureau of Prisons (BOP)
credited him for the time he had already served. The sole
issue before this court is thus one of statutory interpreta-
tion: Is detention prior to a criminal conviction counted
as part of a term of imprisonment in determining the
eligibility of a removable alien under former INA § 212(c)?
We conclude, reviewing this question of law de novo, that
the answer is yes, and we therefore deny the petition for
review.
I
Although Moreno is a citizen of Mexico, he has been
a lawful resident of the United States since November 11,
1963. The first 27 years of his residence passed without
incident. Unfortunately for Moreno, the 28th year did not.
On August 15, 1991, he was arrested and charged with
being a member of a drug conspiracy. He later pleaded
guilty of conspiracy to possess a controlled substance
with intent to distribute in violation of 21 U.S.C. § 846. On
June 22, 1992, he was sentenced to 80 months’ incarcera-
tion, to be followed by 60 months of supervised release.
On June 6, 1997, the day of Moreno’s release from
federal prison, he was served with a Notice to Appear
(NTA) by the then-Immigration and Naturalization Ser-
vice (whose responsibilities for this function are now
performed by the Immigration and Customs Enforcement
section of the Department of Homeland Security (DHS)).
No. 05-4105 3
The NTA charged Moreno with removability under INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because his
criminal conviction was for an aggravated felony, and
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), because his
conviction was a violation of federal law relating to a
controlled substance. Moreno admitted the factual allega-
tions contained in the NTA at a removal hearing conducted
on February 24, 1998, and the IJ found him removable.
Although Moreno applied for a waiver under § 212(c), the
IJ initially denied his request because, at that time, the
BIA had taken the position that this relief had been
precluded by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) and the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(IIRIRA). She ordered that Moreno be deported to Mexico.
While Moreno’s case was on appeal to the BIA, however,
the Supreme Court decided INS v. St. Cyr, 533 U.S. 289
(2001). In St. Cyr, the Court held that even after the
changes made in AEDPA and IIRIRA, discretionary re-
lief under § 212(c) “remains available for aliens . . . whose
convictions were obtained through plea agreements and
who, notwithstanding those convictions, would have been
eligible for § 212(c) relief at the time of their plea under
the law then in effect.” 533 U.S. at 326. See also Valere v.
Gonzales, 473 F.3d 757, 758 (7th Cir. 2007). Given the
ruling in St. Cyr, the BIA remanded Moreno’s case for
further proceedings and ordered the immigration court to
consider his eligibility for relief under that section.
As the BIA noted in its January 4, 2002, remand order,
the threshold issue on remand was whether Moreno met
the statutory criteria for eligibility under § 212(c). The
literal terms of the statute address only admission to the
United States, not removal (or deportation). It gives the
Attorney General discretion to admit “[a]liens lawfully
admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of
deportation, and who are returning to a lawful unre-
4 No. 05-4105
linquished domicile of seven consecutive years,” notwith-
standing their excludability under INA § 212(a), 8 U.S.C.
§ 1182(a). Section 212(c) has not, however, been under-
stood as a law limiting the Attorney General’s discretion
to this class of readmissions. “[C]ourts and the BIA have
held § 212(c) relief is available to deportees who are
similarly situated to inadmissibles, i.e., are being deported
on a ground that substantially corresponds to a ground for
inadmissibility under § 212(a).” Valere, 473 F.3d at 762
(emphasis in original). See also Francis v. INS, 532 F.2d
268, 272 (2d Cir. 1976); Matter of Silva, 16 I. & N. Dec. 26
(BIA 1976). In order to be eligible for the waiver, the
alien must not have been “convicted of one or more ag-
gravated felonies” and have “served for such felony or
felonies a term of imprisonment of at least 5 years.”
§ 212(c).
The critical question here is whether Moreno served a
“term of imprisonment” of five years. There is no disagree-
ment about the amount of time that he spent in either pre-
conviction detention or post-conviction incarceration. The
parties dispute only whether the pre-conviction detention
counts toward the five-year period of time. After his
arrest on August 15, 1991, Moreno remained in detention
until his conviction and sentencing on June 22, 1992, at
which time the BOP credited him with 312 days of time
served. From the date of his sentencing until his release
on June 6, 1997, he served just under five years—a total of
1810 days or 258 weeks and four days. (By our calcula-
tions, this was 16 days short of five years.) If the detention
prior to conviction is part of Moreno’s term of imprison-
ment, he spent more than five years behind bars and is
statutorily ineligible for relief; if it is not included, he
served less than five years. Whether or not that would
help him is unclear. As we explain below in more detail,
since 1996 the INA has defined a “term of imprisonment”
to include “the period of incarceration or confinement
ordered by a court of law regardless of any suspension of
No. 05-4105 5
the imposition or execution of that imprisonment or
sentence in whole or in part.” INA § 101(a)(48), 8 U.S.C.
§ 1101(a)(48). As that definition was added after Moreno’s
guilty plea, however, we disregard it here and proceed
to the merits of Moreno’s argument.
II
Because Moreno presents a straightforward question of
law, we have jurisdiction over his petition for review. See
INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), as amended
by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231. Here, the BIA affirmed the IJ’s decision without an
opinion; we therefore review the IJ’s analysis directly.
Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).
Because the central question is one of statutory
interpretation—the meaning of “term of imprisonment”—
the government argues that the opinion of the IJ is
entitled to deference. This argument, however, fails to
appreciate exactly what the BIA has done here. The BIA
itself emphasizes in its orders of affirmance without
opinion that “[such an order] does not necessarily imply
approval of all of the reasoning of that decision, but does
signify the Board’s conclusion that any errors in the
decision of the immigration judge or the Service were
harmless or nonmaterial.” 8 C.F.R. § 1003.1(e)(4)(ii). The
government points to no earlier decision of the BIA on
which the Board might have been relying here. Even
assuming that we would defer to “the BIA’s interpretation
of the statute it administers,” see Bazan-Reyes v. I.N.S.,
256 F.3d 600, 605 (7th Cir. 2001), in this case the BIA has
effectively informed us that it has chosen not to say
anything about the IJ’s reasoning. We therefore proceed
to the question at hand without any thumb on the scale
in favor of the IJ’s decision.
The question whether detention prior to conviction
should count toward the term of imprisonment used to
6 No. 05-4105
bar an alien from receiving relief under § 212(c) is a
question of first impression in the federal courts of ap-
peals. See, e.g., Edwards v. I.N.S., 393 F.3d 299, 303 (2d
Cir. 2004) (“It remains an open question in this circuit
whether time accrued in pretrial detention should be
counted in calculating whether the five year bar applies.”).
We consider first whether we ought to look at the new
definition of the phrase “term of imprisonment” in the
INA. As we noted earlier, INA § 101(a)(48)(B) defines
“term of imprisonment” as “the period of incarceration or
confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that im-
prisonment or sentence in whole or in part.” There are
serious problems with relying on that definition, however,
in a case that falls within the Supreme Court’s St. Cyr
ruling. Congress added § 101(a)(48)(B) in 1996 as part
of IIRIRA—the same enactment that eliminated the
§ 212(c) waiver. If we are to be consistent in applying
§ 212(c) as it existed prior to IIRIRA, as St. Cyr dictates
for persons in Moreno’s situation, we should not use a def-
inition that was not then part of the statute. Cf. Valere,
473 F.3d at 761-62 (applying the law applicable at the
time of petitioner’s guilty plea in finding him ineligible for
§ 212(c) relief ). In calculating the term of imprisonment for
§ 212(c) waivers, courts of appeals have looked to the time
of actual incarceration, rather than the nominal sentence
ordered by a court. See, e.g., Elia v. Gonzales, 431 F.3d
268, 274 (6th Cir. 2005) (“Determining whether imprison-
ment has made an alien ineligible for § 212(c) relief ‘turns
not on the sentence imposed but on the period of actual in-
carceration.’ ” (quoting United States v. Ben Zvi, 242 F.3d
89, 99 (2d Cir. 2001))). We need not decide here whether
that is the appropriate point of reference, since the out-
come of Moreno’s petition is the same whether we look at
actual time behind bars or the sentence pronounced in
court.
No. 05-4105 7
Freed from any binding definition in the statute, Moreno
argues that “term of imprisonment” is a term of art that
refers only to the period between conviction and release.
He points out that there is a conjunction between the
references to the conviction and the term of imprison-
ment in § 212(c) itself, which talks about an “alien who
has been convicted of one or more aggravated felonies
and has served for such felony or felonies a term of
imprisonment of at least 5 years.” (Emphasis added).
Moreno adds that detention prior to conviction, which is
governed by 18 U.S.C. § 3143, cannot be considered time
served for such a felony because pretrial detention ends
with the conviction for the crime. Detention before a
conviction, he concludes, is a civil restraint, not a crim-
inal one.
Moreno bolsters this argument by reference to the
statutes that direct the BOP how to calculate when to
release a person who has been incarcerated, 18 U.S.C.
§§ 3585 and 3624. Section 3585(a) governs the commence-
ment of a “sentence to a term of imprisonment,” which
begins on “the date the defendant is received in custody
awaiting transportation to . . . the official detention
facility at which the sentence is to be served.” The statute
also stipulates that “[a] defendant shall be given credit
toward the service of a term of imprisonment for any time
he has spent in official detention prior to the date the
sentence commences—(1) as a result of the offense for
which the sentence was imposed . . . .” § 3585(b)(1). Section
3624(a) is the counterpart governing an incarcerated
person’s release date: “A prisoner shall be released by the
Bureau of Prisons on the date of the expiration of the
prisoner’s term of imprisonment, less any time credited
toward the service of the prisoner’s sentence . . . .” Moreno
argues that in context, the phrase “term of imprisonment”
must refer solely to the period that commences on the
date the prisoner enters custody after conviction
8 No. 05-4105
(§ 3585(a)) and ends at the expiration of the prisoner’s
term (§ 3624(a)). Taken together, he concludes, these
statutes draw a distinction between pre-conviction time
served and the term of imprisonment—precisely the
distinction that Moreno would like to draw here for
purposes of § 212(c).
The problem with Moreno’s argument is that it fails to
give proper weight to the second half of § 3585, which
addresses credit for prior custody toward the service of
the term of imprisonment. Once a defendant is convicted
and his sentence calculated, all that remains is for the
BOP to decide how (and where) he must serve that term.
Time spent in “official detention prior to the date the
sentence commences” is, according to the statute, part of
that service. Moreno is correct that from an ex ante
perspective the pretrial detention of an accused person is
not pursuant to a conviction. This would be an entirely
different case if, implausibly, someone was detained for
more than five years prior to a trial and then was acquit-
ted. (But, of course, such a person would not be re-
movable in any event because of a conviction of an aggra-
vated felony.) Moreno was convicted of the crime for which
he was detained. As soon as he was convicted and sen-
tenced, § 3585(b) gave him the benefit of a credit toward
the service of his sentence for the time he had already
served. Long before his removal proceedings began, his
pretrial detention had been related to his crime of convic-
tion. The only sensible result is to count that period as
time that he “served for such felony” for purposes of
§ 212(c).
This conclusion is reinforced by the fact that the immi-
gration laws use the amount of time for which a person is
incarcerated as a proxy for the seriousness of the crime. As
this court commented in Guisto v. INS, “the selection of
five years’ imprisonment as the line of demarcation for
such ‘serious’ crimes is consistent with Congress’s selec-
No. 05-4105 9
tion of five years as the mandatory minimum prison term
for certain serious crimes.” 9 F.3d 8, 10 (7th Cir. 1993). We
have no reason to think that it mattered to Congress
whether the person served time before conviction or after:
it is the overall service of a term of imprisonment that
reflects the seriousness of the crime and the culpability
of the alien. Although immigration laws use somewhat
different terminology in different places, the amount of
time spent in jail or prison for a particular crime is
consistently an important consideration. For example, INA
§ 101(f )(7), 8 U.S.C. § 1101(f )(7), excludes from the
definition of someone with “good moral character” any
person “who during [the preceding five years] has been
confined, as a result of conviction, to a penal institution for
an aggregate period of 180 days or more.” In computing the
period of time for purposes of this section, the BIA has
held that confinement prior to conviction should be
included. See Matter of Valdovinos, 18 I. & N. Dec. 343,
344-45 (BIA 1982).
Moreno’s argument would create a senseless distinc-
tion between defendants convicted of the same crimes
based on whether or not they made bail before trial.
Moreno received credit for the 312 days he served before
trial when the BOP calculated the length of his sentence.
If the trial court in his criminal case had not ordered him
detained pending trial, he would have served that addi-
tional time after his final judgment. Finding Moreno to
be eligible in the former case for § 212(c) relief but not
in the latter would be an odd reward for having been
detained before a criminal trial.
Moreno’s petition for review is DENIED.
10 No. 05-4105
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-07 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000858/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 25, 2007*
Decided July 26, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 07-1443
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Southern District of Indiana,
Indianapolis Division.
v.
No. 06-CV-0448-LJM-TAB
SANG WOO KIM and
HEUNG JAI KIM, Larry J. McKinney,
Defendants-Appellants. Chief Judge.
ORDER
In this tax forfeiture action, Heung Jai Kim and Sang Woo Kim, father and
son, respectively, together appeal the district court’s grant of summary judgment
against Heung Jai Kim and entry of a default judgment against Sang Woo Kim. We
dismiss Heung Jai Kim’s appeal for his failure to prosecute. However, we vacate
the district court’s entry of the default judgment against Sang Woo Kim and
remand for further proceedings.
In 2000 the United States Secretary of the Treasury assessed Heung Jai Kim
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and record. See
Fed. R. App. P. 34(a)(2).
No. 07-1443 Page 2
and his wife, Myung Ok Kim, more than $1.8 million for unpaid federal income
taxes, plus penalties and interest. The Kims made partial payment, leaving an
outstanding balance of approximately $865,000. In response the government filed
in March 2006 a civil complaint seeking a judgment against the Kims for the
balance, a lien on their property located at 11145 Bridlewood Trail in Zionsville,
Indiana, and an order foreclosing the lien and directing that the property be sold.
See 26 U.S.C. §§ 6321, 7403(a). Sang Woo Kim also was named as a party to the
action because, the government stated, “he may claim an interest in the subject
property upon which the United States seeks to foreclose.” See id. § 7403(b).
Although the complaint was served on all three defendants on June 26, 2006,
only Heung Jai Kim answered. He stated that he and Sang Woo Kim had owned
the Bridlewood Trail property as tenants in common since 2001. Having received
no answer from either Myung Ok Kim or Sang Woo Kim, the government moved on
August 14 for a separate entry of default against each. See Fed. R. Civ. P. 55(a).
The clerk entered the defaults the next day, and three days later the government
moved for summary judgment against Heung Jai Kim.
Those actions prompted submissions from both Heung Jai Kim and Sang Woo
Kim on August 28. Heung Jai Kim disclosed that his wife had died on August
10—five days before the district court found her in default. Both father and son
asserted that they shared equal interests in the Bridlewood Trail property, and both
asked the court to dismiss the government’s complaint.
On October 31, the district court issued an order declining to dismiss the
complaint. The court also gave Sang Woo Kim until November 14 to seek relief
from the default. See Fed. R. Civ. P. 55(c). The court set that same deadline for
Heung Jai Kim to respond to the government’s motion for summary judgment,
and for the government to seek a default judgment against Sang Woo Kim. The
court concluded the order by giving Sang Woo Kim until November 28, 2006, to
respond if the government moved for a default judgment.
The government voluntarily dismissed its action against Myung Ok Kim on
November 7. That same day the government moved for a default judgment against
Sang Woo Kim. On November 9, the district court granted the government’s motion
even though its deadlines for Sang Woo Kim to challenge the default itself and the
government’s motion to reduce it to judgment had not passed. Meanwhile, Heung
Jai Kim ignored the government’s motion for summary judgment, and on February
8, 2007, the district court granted that motion. The court later entered judgment in
favor of the government, in which it foreclosed on the Bridlewood Trail property and
ordered the marshals service to sell the property and apply the net proceeds to
Heung Jai Kim’s unpaid tax assessment.
Heung Jai Kim and Sang Woo Kim both appeal, but together they have filed
No. 07-1443 Page 3
a single brief arguing only that the district court erred by entering a default
judgment against Sang Woo Kim. But this argument cannot benefit Heung Jai
Kim, and he lacks authority to raise this or any other argument on Sang Woo Kim’s
behalf. See Am. Fed’n of Gov’t Employees, Local 2119 v. Cohen, 171 F.3d 460, 467
(7th Cir. 1999) (“‘[T]he plaintiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or interests of third
parties.’” (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975))); see also Navin v.
Park Ridge Sch. Dist., 270 F.3d 1147, 1149 (7th Cir. 2001) (stating that pro se
litigant lacks authority to represent interests of other parties, even if other party is
pro se litigant’s son). And because as to himself Heung Jai Kim does not challenge
the court’s judgment, or the foreclosure of the Bridlewood Trail property, or the
property’s sale to satisfy his delinquent tax assessment, we dismiss his appeal for
failure to prosecute. See United States ex rel. Verdone v. Circuit Court, 73 F.3d 669,
673 (7th Cir. 1995) (dismissing appeal when brief failed to specify any error in
district court’s decision and did not contain identifiable argument); United States v.
Sosa, 55 F.3d 278, 279 (7th Cir. 1995); see also O’Rourke Bros., Inc. v. Nesbitt
Burns, Inc., 201 F.3d 948, 952 (7th Cir. 2000) (“[A] court has inherent authority to
dismiss a case sua sponte for a failure to prosecute.”).
Sang Woo Kim, on the other hand, can and does challenge the district court’s
entry of the default judgment, which we review for abuse of discretion. See Homer
v. Jones-Bey, 415 F.3d 748, 753 (7th Cir. 2005). The government implies that Sang
Woo Kim abandoned this challenge because he failed to show cause in the district
court why the entry of default should be lifted. The government misstates the law;
Sang Woo Kim was not required to challenge in the district court the entry of
default before appealing the default judgment. See Pecarsky v. Galaxiworld.com,
Ltd., 249 F.3d 167, 170-71 (2d Cir. 2001); see also 10A Charles A. Wright et al.,
Federal Practice and Procedure § 2692 (3d ed. 1998) (“Rule 55(c) differentiates
between relief from the entry of default and relief from default judgment.”). More
importantly, we note that the government does not even acknowledge that the
district court ruled before Sang Woo Kim had a chance to argue that the default
should be set aside.
We agree with Sang Woo Kim that the district court abused its discretion
when entering the default judgment. Without prior notice, the court deprived Sang
Woo Kim of the opportunity it promised him both to establish why he should be
relieved from the clerk’s entry of default, and to respond to the government’s motion
for the default judgment. In its order entered on October 31, 2006, the court stated
that Sang Woo Kim would have until November 14 to show why the entry of default
should be lifted; in that same order the court also stated that he would have until
November 28, 2006, to respond if the government sought a default judgment. Yet
when the government filed its motion for the default judgment on November 7, the
court granted it two days later, without first hearing from Sang Woo Kim or at least
No. 07-1443 Page 4
letting his deadline for responding pass. This unannounced and arbitrary deviation
from the established briefing schedule alone constituted an abuse of discretion. See
SEC v. Smyth, 420 F.3d 1225, 1231-32 (11th Cir. 2005) (“We believe that the right
to be heard is of little value unless the party has some point of reference in
established procedural rules to guide his continued participation in the [default
judgment] proceedings, particularly when final judgment looms.”); Vallone v. CNA
Fin. Corp., 375 F.3d 623, 629 (7th Cir. 2004).
Moreover, because the district court failed to consider Sang Woo Kim’s
arguments before entering the default judgment, we cannot say that the court
exercised its discretion at all. Before we can review a discretionary ruling, we first
must conclude that the court exercised its discretion in the first place by
considering arguments relevant to its decision, see United States v. Cunningham,
429 F.3d 673, 679 (7th Cir. 2005), and we will find an abuse of discretion when the
district court fails to do so, see United States v. Roberson, 474 F.3d 432, 436 (7th
Cir. 2007); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir. 1999) (“[A] discretionary
ruling . . . cannot be upheld when there is no indication that the judge exercised
discretion.”); see also Ashby v. McKenna, 331 F.3d 1148, 1152 (10th Cir. 2003)
(stating that district court’s refusal to enter decision regarding default judgment did
not reflect its “exercise of discretion over this matter,” which, in turn, presented
“obvious complications” for appellate courts). Here, the court ruled without waiting
to consider arguments that bore on its decision whether to enter the default
judgment. The district court was obligated to do so, see Smyth, 420 F.3d at 1232;
Wienco, Inc. v. Katahn Assocs., 965 F.2d 565, 568 (7th Cir. 1992), and even stated in
its scheduling order that it would do so. Thus, we must conclude that the district
court failed to exercise any discretion when entering the default judgment. See
Patton v. MFS/Sun Life Fin. Distribs., 480 F.3d 478, 490 (7th Cir. 2007); Roberson,
474 F.3d at 436.
In sum, we DISMISS Heung Jai Kim’s appeal for his failure to prosecute, but
we VACATE the default judgment entered against Sang Woo Kim, and REMAND to
allow the district court to address whether the entry of default should be set aside
pursuant to Fed. R. Civ. P. 55(c). See Key Bank v. Tablecloth Textile Co., 74 F.3d
349, 355-56 (1st Cir. 1996) (stating question of whether entry of default should be
set aside “is more appropriately resolved by the district court in the first instance on
remand”). On remand the district court should consider that, as far as the record
shows, Sang Woo Kim promptly sought relief from his default and the government
neither has claimed that he is responsible for his parents’ outstanding tax
assessment, nor has refuted his assertion that he has a valid interest in the
Bridlewood Trail property. See Yong-Qian Sun v. Bd. of Trs., 473 F.3d 799, 810 (7th
Cir. 2007) (stating that entry of default should be lifted if moving party can show
“(1) good cause for the default; (2) quick action to correct it; and (3) a meritorious
No. 07-1443 Page 5
defense to the complaint”); Pretzel & Stouffer v. Imperial Adjusters, 28 F.3d 42, 45
(7th Cir. 1994) (same); see also Wright et al., supra, § 2685 (“[O]n a motion for relief
from the entry of a default or a default judgment, all doubts should be resolved in
favor of the party seeking relief.”). | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000876/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 10, 2007
Decided July 25, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
No. 06-3336
OUSSEYNOU LO, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A78-867-019
ALBERTO R. GONZALES,
Respondent.
ORDER
Ousseynou Lo, a citizen and native of Senegal, married a United States citizen
after he was placed in removal proceedings for noncompliance with the conditions of
his student visa. Lo requested continuances three times to show that his marriage was
bona fide; an immigration judge (“IJ”) granted the first two requests but denied the
third. Lo appealed to the Board of Immigration Appeals (“BIA”) and attached to his
brief additional documents to show that his marriage was not fraudulent. The BIA
adopted and affirmed the IJ’s decision, and then added that it would not consider Lo’s
new evidence on appeal. Lo retained a new attorney, who now argues that Lo’s first
lawyer provided constitutionally ineffective assistance. We dismiss the petition for
lack of jurisdiction.
No. 06-3336 Page 2
Shortly after arriving in the United States on a nonimmigrant visitor’s visa, Lo
obtained a nonimmigrant student visa so that he could attend the Zoni Language
Center in New York. When Lo stopped attending the school, however, the government
charged him with removability under 8 U.S.C. § 1227(a)(1)(C)(I). Lo appeared at four
removal hearings. The first was continued to allow him time to obtain counsel. At his
second hearing, held on February 15, 2005, Lo appeared with counsel, Michelle Neal,
who asked for a continuance because she claimed to have just received Lo’s recent
marriage certificate from Senegal. She believed that the marriage—to a United States
citizen named Brenda Brooks—may have provided a basis for Lo to apply to adjust his
status.1 The IJ granted the request and scheduled a third hearing for March 1, 2007.
At the third hearing Lo, through Neal, conceded removability but announced that he
intended to apply for adjustment of status based on his marriage. Lo indicated that
his wife had filed a visa petition on his behalf on February 22, 2005, but it had not yet
been approved. Neal requested another continuance to file an application for
adjustment of status and to produce evidence that the marriage was bona fide.
The IJ granted the request and continued the proceedings until June 7, 2005.
The IJ advised Neal that the application, “with a copy for the Court[,] must be filed by
May 22nd, 2005.” Otherwise, the IJ stated, the request would be deemed abandoned.
The IJ also advised counsel to include evidence that the marriage was bona fide.
At the June 7 hearing, the IJ observed that although he had asked for the
application for adjustment of status to be filed with the court by May 22, he had not
received anything. Neal explained that she had mailed Lo’s application for adjustment
of status to the United States Citizenship and Immigration Services on May 22, 2005.
The IJ reminded Neal that he had directed her to file the application with the court by
May 22. Neal apparently thought that the file would be transferred to the IJ, but the
IJ responded that he wanted a copy of the application for himself by May 22.
Neal nevertheless offered the application and supporting documents into
evidence. Those documents include a copy of a letter from the Field Museum in
1
The marriage certificate is among the documents submitted along with Lo’s
brief on appeal to the BIA. How counsel could have had the marriage certificate at the
hearing on February 15, 2005, is unclear given that certificate itself reflects that the
parties were not married until February 20, 2005, and that the certificate was not
issued until two days later. The wedding photographs also complicate the chronology
because they date the wedding ceremony as February 5, 2005. Moreover, no one
explains how or why Lo, who was released from administrative detention on bond, was
permitted to travel to Senegal to get married in February in the midst of his removal
proceedings.
No. 06-3336 Page 3
Chicago, Illinois, addressed to “Ousseynou Lo & Brenda Brooks-Lo,” a copy of a letter
addressed solely to “Ousseynou Lo” regarding his credit card with Providian National
Bank, copies of email messages purportedly responding to a wedding announcement
for Lo and Brenda Brooks, copies of photographs appearing to be from their wedding
ceremony, and a copy of a federal income tax return filed by Brenda Brooks for 2004.
Neal also produced a copy of a credit card and bank statement, which were both in
Brooks’s name only. The government argued that none of the documents showed the
kind of commingling or cohabitation that typically accompany a bona fide marriage,
which prompted Neal to seek another continuance to submit more evidence that the
marriage was bona fide. The IJ denied her request.
The IJ ordered Lo removed to Senegal, reasoning that the application for
adjustment of status had not been timely filed. Even considering the late-submitted
documents, the IJ continued, there was no clear and convincing evidence that the
marriage was bona fide. And given that lack of evidence, the IJ declined to continue
the case for adjudication of the pending visa petition.
Through Neal, Lo appealed the denial of his request for a continuance to the
BIA. In his brief Lo argued that the IJ abused his discretion in refusing to grant a
continuance under the standards of In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256-57
(BIA 2002), given that Lo had to wait for evidence from Senegal and for copies of his
business records to arrive. He also argued that the IJ erred in preventing his wife from
testifying that the marriage was bona fide, though the record does not indicate that
Neal asked to present such testimony. Lo attached to his brief 75 pages of new
documents and affidavits from family, friends, and others, intended to show that the
marriage was not fraudulent.
Finding no abuse of discretion, the BIA adopted and affirmed the IJ’s decision.
The BIA wrote that Lo’s “speculative future eligibility for adjustment of status fails to
establish good cause for a continuance of his removal proceedings, where he failed to
comply with the deadline set by the judge for submitting his application for adjustment
of status and supporting documents.” The BIA also refused to consider the new
documents attached to Lo’s brief because, it stated, it was limited to reviewing the
record created before the IJ. The BIA observed that Lo had not shown that the
information submitted with his brief was unavailable at the time of his hearing.
Lo retained new counsel and filed his petition for review in this court on
August 30, 2006. Four months later his new counsel also filed with the BIA a motion
to reopen the case on the basis of ineffective assistance of previous counsel. Following
the procedures outlined in In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), counsel
attached to his motion to reopen an affidavit and formal complaint of ineffectiveness.
No. 06-3336 Page 4
But the motion to reopen itself is neither in the record on appeal nor attached to Lo’s
brief.
According to the Attorney General’s brief, the BIA denied Lo’s motion to reopen
on January 26, 2007, while this appeal was pending. At oral argument, Lo’s new
counsel said that he has still not received a copy of the BIA’s decision.
Lo’s sole argument on appeal is that he was denied the effective assistance of
counsel because his previous attorney failed to timely file his application for
adjustment of status and failed to present sufficient materials to demonstrate that his
marriage was bona fide. He concedes that he first raised this issue in his motion to
reopen. The Attorney General responds that Lo failed to exhaust his administrative
remedies by not allowing the BIA to consider this issue before petitioning this court for
review. Under 8 U.S.C. § 1252(d)(1), the Attorney Generally points out, aliens must
exhaust all remedies available “as of right.” But Lo counters that he was not required
to exhaust because the BIA’s decision to reopen is discretionary, and therefore not
available “as of right.”
This court already considered and rejected Lo’s argument in Padilla v. Gonzales,
470 F.3d 1209 (7th Cir. 2006). In Padilla, the petitioner was ordered removed for
having been convicted of two crimes of moral turpitude. Id. at 1211. After an Illinois
state court vacated the two convictions, he sought relief from removal by filing a writ
of habeas corpus in federal court rather than a motion to reopen with the BIA. Id.
Padilla argued—as Lo does here—that reopening is not required because the grant of
a motion to reopen is not available from the BIA “as of right.” Id. at 1213. In rejecting
Padilla’s argument, this court held that he should have given the BIA an opportunity
to consider the effect of the vacated convictions. Id. at 1214. As a result, this court
dismissed the petition for lack of jurisdiction, holding that Padilla failed to exhaust his
administrative remedies by not first litigating a motion to reopen his case. Id. at 1215;
see also Goonsuwan v. Ashcroft, 252 F.3d 383, 385-86 (5th Cir. 2001) (holding that
petitioner under order of removal failed to exhaust administrative remedies by not
presenting claim of ineffective assistance of counsel to BIA).
Like Padilla, Lo is required to demonstrate that he exhausted his claim for
ineffective assistance of counsel. This is true even though the right to effective counsel
in immigration proceedings arises under the Fifth Amendment’s Due Process Clause
rather than the Sixth Amendment, see Castanada-Suarez v. I.N.S., 993 F.2d 142, 144-
45 (7th Cir. 1993); Stroe v. I.N.S., 256 F.3d 498, 500 (7th Cir. 2001). Although due-
process claims are generally exempt from the exhaustion requirement (because the BIA
abstains from adjudicating constitutional issues), there are substantial prudential
considerations that nevertheless constrain this court from exercising jurisdiction over
such claims in the first instance. See Castanada-Suarez, 993 F.3d at 144. First,
No. 06-3336 Page 5
because it was within the BIA’s power to grant Lo relief for his due-process claim by
simply reopening his case, he is not exempted from exhaustion. Pjetri v. Gonzales, 468
F.3d 478, 481 (7th Cir. 2006); Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006).
Second, even though Lo—unlike Padilla—did file a motion to reopen his case, neither
the motion, nor the documents that support it, are part of the record in this appeal.
See Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007) (stating that “the proper
mechanism by which a movant may request to submit new evidence” is a motion to
reopen); Reyes-Hernandez v. I.N.S., 89 F.3d 490, 494 (7th Cir. 1996) (explaining that
without the appropriate motion, the BIA does not consider new evidence on appeal).
Consequently this court cannot evaluate if Lo’s motion properly exhausted his claim.
Most importantly, although the parties agree that the BIA has denied Lo’s
motion to reopen (and counsel for the Attorney General informed us at oral argument
that the BIA denied Lo’s motion as untimely), that decision is not in the record either
(nor, for that matter, has Lo timely appealed that decision). Thus, as in Padilla, “there
is no agency decision on this issue for [the court] to review.” 470 F.3d at 1214. As a
result, this court does not have the “the benefit of the agency’s expertise” on Lo’s claim
of ineffectiveness—a principal purpose of exhaustion. See Castanada-Suarez, 993 F.3d
at 145. Without an agency decision on this issue to review, this court lacks jurisdiction
to address Lo’s sole argument that he was denied effective assistance of counsel. See
id.; Pjetri, 468 F.3d at 481 (explaining that court lacks jurisdiction to consider
arguments not exhausted before BIA); Awad v. Ashcroft, 328 F.3d 336, 340 (7th Cir.
2003) (“The exhaustion requirement is jurisdictional.”).2
This petition is DISMISSED for lack of jurisdiction.
2
Although Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006), states
that failure to exhaust administrative remedies is technically not jurisdictional,
Korsunskiy does not overrule previous cases, including Awad and those cited in Pjetri,
holding that exhaustion of remedies is jurisdictional. In any event, the outcome is the
same: Lo is entitled to no relief. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000885/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 19, 2007
Decided July 24, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-1370 Appeal from the United States
District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 04 CR 473
TARIQ ISA, Amy J. St. Eve,
Defendant-Appellant. Judge.
ORDER
Tariq Isa pleaded guilty to conspiracy to possess approximately 1,728,000
tablets of pseudoephedrine knowing or having reason to know they would be used to
manufacture a substance containing methamphetamine, and attempting to possess
those tablets knowing or having reason to know they would be used to produce
methamphetamine. The district court sentenced Isa to 235 months’ imprisonment,
a term at the bottom of the advisory sentencing guidelines range. Isa appeals the
reasonableness of his sentence and challenges the presumption of reasonableness
this circuit accords sentences within a properly calculated guidelines range. We
affirm.
No. 06-1370 Page 2
I. Background
In May 2002 Isa agreed to act as a middleman and broker a deal for the
purchase of tablets containing pseudoephedrine, an ingredient in the manufacture
of substances containing methamphetamine. Isa was approached by Hafez
Hussein, who offered to buy 200 to 400 cases of the tablets. Isa then contacted Abe
Nassar, a pseudoephedrine seller, and asked to purchase 200 cases, or
approximately 1,728,000 tablets of pseudoephedrine, at $650 to $700 per case. That
amount, after processing, would yield about 143 pounds of methamphetamine, the
equivalent of 65,000 individual quantities of the drug. With these arrangements
made, the deal went down in May 2005. Hussein provided Isa with $99,150 in
cash—enough money to buy approximately 153 cases—with Nassar covering any
gap between the offered money and the asking price. Isa placed $66,780 in a
cardboard box and took it to Nassar, who was waiting in a car parked outside Isa’s
home.
On May 11, 2004, Isa was charged in a two-count indictment with violations
of 21 U.S.C. §§ 846 and 841(c)(2) for conspiring to knowingly and intentionally
possess and distribute, and attempting to possess and distribute approximately
1,728,000 tablets of pseudoephedrine, knowing and having reasonable cause to
believe the pseudoephedrine would be used to manufacture a controlled substance,
namely, mixtures containing a detectable amount of methamphetamine. A
superseding indictment on September 7, 2004, also charged Isa with a third count,
being a convicted felon in possession of a loaded firearm in violation of 18 U.S.C.
§ 922(g)(1). That count was severed in January 2005, and in September 2005 Isa
pleaded guilty without a plea agreement to the first two counts of the superseding
indictment. Isa agreed with the government’s factual basis for his plea but reserved
the right to contest the number of tablets involved in the crimes.
The district court calculated a sentencing range between 235 and 293 months
for each of Counts I and II (the pseudoephedrine-related counts) of the superseding
indictment. The court set Isa’s base-level offense at 36 and his criminal history
category at III in light of a previous California state conviction for pseudoephedrine
trafficking. (In fact, Isa’s federal crime occurred while he was on parole for his state
trafficking conviction.) Acknowledging the advisory nature of the guidelines and
taking into account the sentencing factors in 18 U.S.C. § 3553(a), the district court
sentenced Isa to 235 months’ imprisonment.
II. Discussion
Isa’s sentence of 235 months is at the bottom of a properly calculated
guidelines range; as such, it is entitled to a rebuttable presumption of
reasonableness on appeal. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). A defendant can rebut this presumption “only by demonstrating that his or
No. 06-1370 Page 3
her sentence is unreasonable when measured against the factors set forth in
§ 3553(a).” Id.
Isa first challenges this circuit’s framework for reviewing the reasonableness
of sentences. He contends that Mykytiuk’s rebuttable presumption of
reasonableness for sentences within a properly calculated guidelines range is a
return to a pre-Booker,1 unconstitutional sentencing regime. Isa argues this
presumption gives undue weight to the guidelines and presanctions all but the most
rare nonguidelines sentences.
In its recent decision in Rita v. United States, the Supreme Court held that
courts of appeals may apply a presumption of reasonableness to sentences imposed
within a properly calculated guidelines range. 127 S. Ct. 2456, 2459 (2007). The
Court reasoned that such a nonbinding presumption “recognizes the real-world
circumstance that when the judge’s discretionary decision accords with the
[Sentencing] Commission’s view of the appropriate application of § 3553(a) in the
mine run of cases, it is probable that the sentence is reasonable.” Id. at 2465. In
light of Rita, Isa’s first argument fails.
Isa next makes several arguments in an effort to overcome the appellate
presumption of reasonableness, but all are exceedingly weak. First, he contends
that the large number of pills attributed to him is not a reasonable measure of his
culpability. He acknowledges that even if the total pill count in the transaction had
been much lower, his sentencing range would have been unchanged.2 He argues
instead that his case is one in which drug quantity does not appropriately reflect his
role or culpability in the offense. Isa asserts that in the circumstances of this case,
the drug quantity was really just a matter of fortuity. He was neither the supplier
nor the buyer, but merely the broker of the pills, and as such, he had little control
over the number of pills involved in the transaction. He suggests his profit in the
deal—just $9000 in contrast to the hundreds of thousands the buyer hoped to
earn—is a better barometer of his culpability. Isa does not cite any case law (and
we can find none) in support of the proposition that a lesser degree of culpability is
attributable to a broker versus a buyer or supplier. The district judge considered
and rejected this argument, as she was entitled to do in the exercise of her
post-Booker discretion.
Pill quantity aside, Isa contends the district court improperly disregarded his
personal characteristics, including his age, willingness to assist the government,
and his good character. As to his age (57 years), Isa notes the low recidivism rate of
1
United States v. Booker, 543 U.S. 220 (2005).
2
Isa concedes, however, that the district court’s calculations were correct.
No. 06-1370 Page 4
older offenders. That point notwithstanding, the district court’s analysis of this
factor was reasonable. The court pointed out that Isa began pseudoephedrine
trafficking when he was 50 years old and was on parole when he committed the
instant offense. Isa has not claimed any infirmities that might warrant special
consideration. See, e.g., United States v. Bullion, 466 F.3d 574, 576 (7th Cir. 2006);
United States v. Wurzinger, 467 F.3d 649, 653 (7th Cir. 2006). The district court
reasonably considered and rejected Isa’s argument about an inverse correlation
between his age and potential for recidivism.
Isa next points to his willingness to provide information to the government.
However, he did not in fact provide any useful information to the authorities; the
government did not file a “substantial assistance” motion pursuant to U.S.S.G.
§ 3E1.1. Isa’s mere willingness to provide information does not warrant
consideration in sentencing.
Finally, Isa argues his sentence was unduly harsh in light of his good
character. The district court received letters discussing Isa’s positive contributions
to his community. The court also learned that Isa intervened in 2004 when a fellow
inmate attempted to hang himself. The court did not find the letters or Isa’s rescue
of a fellow inmate to be sufficiently compelling to justify a below-guidelines
sentence. Isa essentially asks us to reweigh factors that did not convince the
district court in the first instance. This is beyond the scope of reasonableness
review. “Our review is deferential to the district court’s judgment; ‘the question is
not . . . what sentence we ourselves might ultimately have decided to impose on the
defendant.’” United States v. Newsom, 428 F.3d 685, 686 (7th Cir. 2005) (quoting
United States v. Williams, 425 F.3d 478, 481 (7th Cir. 2005)). Isa has failed to rebut
the presumption that his within-guidelines sentence is reasonable.
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000646/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2007*
Decided May 24, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Nos. 05-4101 & 06-1544 Appeals from the United
States District Court for the
UNITED STATES OF AMERICA, Central District of Illinois.
Plaintiff-Appellee,
No. 00 CR 20046
v.
Michael P. McCuskey, Chief
JAMES M. TURNER and ARLENE F. DIAMOND, Judge.
Defendants-Appellants.
Order
Turner and Diamond were convicted of fraud and money laundering for their
roles in a scam that sold phantom “prime bank notes” to gullible investors. We af-
firmed both convictions but remanded for resentencing. See United States v. Dia-
mond, 378 F.3d 720 (7th Cir. 2004); United States v. Turner, 400 F.3d 491 (7th Cir.
2005). The new sentences were shorter: Turner received 135 months rather than
151, and Diamond received 188 months rather than 210.
Both have appealed again, contending that the sentences remain too long. They
do not contend, however, that the district court failed to carry out our instructions.
* These successive appeals have been assigned to the original panel under Operating Procedure
6(b). After examining the briefs and the record, we have concluded that oral argument is unneces-
sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
Nos. 05-4101 & 06-1544 Page 2
Turner maintains that United States v. Booker, 543 U.S. 220 (2005), entitles him to a
new trial at which all questions bearing on sentencing will be resolved by the jury, or al-
ternatively that the judge must resolve all of these issues in his favor. Either way, the ar-
gument boils down to the proposition that Booker requires all factual disputes bearing
on sentence to be resolved, beyond a reasonable doubt, by a jury. That contention is
frivolous and requires no comment beyond what is said in United States v. Hawkins,
480 F.3d 476 (7th Cir. 2007). And Turner’s penalty is reasonable with or without a
presumption that sentences within a properly constructed Guideline range (as
Turner’s was) are reasonable. That question is before the Supreme Court in Rita v.
United States, No. 06-5754 (argued Feb. 20, 2007), but does not affect the outcome;
Turner’s sentence is reasonable by any reckoning.
Diamond, who has proceeded pro se in this court, advances 22 separate conten-
tions that do more to demonstrate why criminal defendants need legal assistance
than to undermine her conviction. Diamond’s lead issue, for example, reads:
Did district court exceed its delegated authority by trying a sovereign
American citizen in a Military court, under a gold fringed Military Parade
Flag, [law of the Flag*], contrary to the Constitution for the united States
of America?
The brackets, asterisk, and errors all are in the original. As for the substance, nei-
ther the statement of the issue nor the rest of the brief affords a glimmer of a legal
claim. Diamond was tried in a United States District Court, not a military tribunal.
Much of the brief consists of assertions that Diamond is a “sovereign” not subject
to trial in any court other than “her own.” These arguments are beyond the scope of
the remand and were forfeited when nor presented earlier. What’s more, many of
the arguments imply a disdain for legal obligations demonstrating the need for a
lengthy sentence to protect the public: Diamond makes it clear that she does not
feel bound, and will not abide by, any law with which she disagrees.
The only portion of the brief that presents any recognized legal argument is
Diamond’s contention that the district judge should have allowed her to represent
herself at the resentencing. Yet she never made a clear request for self-
representation. Instead she engaged in obstructionist conduct—such as refusing to
speak or claiming to be someone else—so peculiar that the judge ordered a psychi-
atric examination. The examination revealed that she is intelligent (IQ 126), in full
possession of her faculties, and determined to throw a monkey wrench into the pro-
ceedings if she can. After receiving this report the judge asked Diamond whether
she wanted to represent herself. She replied: “I accept that for value. I accept your
offer.” When pressed, she used several variations of this phrase but refused to say
“yes” or “no.” Diamond’s answer implies that she is among those who imagine (or
profess to believe) that proceedings in court form contracts with the judge, who then
must pay the price the litigant names. See United States v. James, 328 F.3d 953
(7th Cir. 2003). No judge is required to put up with such antics.
AFFIRMED | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000655/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2471
MOHAMADOU L. TANDIA,
Petitioner,
v.
ALBERTO GONZALES,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A79-572-527
____________
ARGUED FEBRUARY 28, 2007—DECIDED MAY 23, 2007
____________
Before RIPPLE, MANION and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Mohamadou Tandia petitions for
review of the order of the Board of Immigration Appeals
(“BIA” or “Board”) denying his applications for asylum,
withholding of removal and relief under the Convention
Against Torture (“CAT”) and ordering his removal from
the United States. Mr. Tandia claimed that he suffered
persecution in his home country of Mauritania and feared
future persecution if he were forced to return. The immi-
gration judge (“IJ”) determined that Mr. Tandia’s account
of his two arrests and detentions was uncorroborated and
not credible. Mr. Tandia now contends that the IJ’s cred-
2 No. 06-2471
ibility determination was erroneous and that he has
demonstrated past persecution and a well-founded fear of
future persecution. Because we conclude that the IJ’s
credibility determination indeed was flawed and that the
overall decision is not supported by substantial evidence,
we grant the petition for review and reverse the decision
of the Board.
I
BACKGROUND
Mr. Tandia left Mauritania in June 2001 and was admit-
ted to the United States on a sixth-month visa. He applied
for asylum within weeks of his arrival. In April 2002, he
was served with a notice to appear that charged him with
removability for overstaying his six-month visitor’s visa.
He conceded removability and requested, in addition to
asylum, withholding of removal and CAT relief. He
claimed past persecution and a fear of future persecution
on the basis of his race (black), ethnicity (Soninke tribe) and
political opinion, including his membership in an opposi-
tion party, the United Democratic Front, Union des Forces
Démocratiques (“UFD”), and his resistance to the imposition
of Arabic as the official language in Mauritanian schools.
After a hearing on the merits of the application in May
2003, the IJ denied all forms of relief because he believed
that Mr. Tandia’s testimony was not credible. However,
Mr. Tandia successfully challenged the accuracy of the
translation at that hearing, and a second hearing was held
in June 2004. The IJ, sitting in Chicago, conducted the
hearing by teleconference; Mr. Tandia, his attorney and an
interpreter were in Kansas City, Missouri.
No. 06-2471 3
At the second hearing, Mr. Tandia testified primarily
about his political activity, which began when, at the age
of nineteen, he became a member of the UFD to oppose
“laws that were against the people.” A.R. at 229; see also id.
at 109, 227-29. The UFD is a major opposition party in
Mauritania and has been banned by the government.
According to Mr. Tandia, the government persecuted him
for his political activities on two occasions. First, in January
1994, Mr. Tandia and several other students organized a
demonstration to protest the cessation of French-language
instruction in public schools. Approximately 100 students
gathered outside the high school in Kaeda. Mr. Tandia and
the other leaders of the rally, about 10 to 15 people, were
arrested and taken to a detention facility outside the city,
where they were held for eight weeks. During that time,
they were interrogated “every day,” id. at 238, denied
sufficient food and water and subjected to extreme heat, id.
at 393. The guards regularly beat the students with sticks,
belts, branches and their fists. Mr. Tandia stated that he
suffered “injuries on my face, my back, my belly, my
fingers, my arms.” Id. at 238. Mr. Tandia and the other
students never were charged with any crime or allowed
to consult with lawyers. After eight weeks, the students
were forced to promise not to engage in any further public
opposition to the government, and they were released.
The second incident Mr. Tandia described occurred
years later, after he had abstained from political activity
for a number of years following his detention and beating.
However, after leaving his public high school, where
classes were taught only in Arabic, he organized another
group to protest the high tuition and Arabic-language
instruction in the public schools. Mr. Tandia later enrolled
in a private school where he received instruction in French
4 No. 06-2471
instead of Arabic. In August 2000, Mr. Tandia and the
rest of the students in his class at the private school (about
15) were arrested. According to Mr. Tandia, the reason for
the arrests was that “we would not stay in the public
schools and be forced to learn in Arabic as opposed to
French.” Id. at 394. Although he was not beaten, Mr. Tandia
suffered “mental abuse” and was detained for about four
months. Id. He was not released until after the national
Baccalaureate exam had been administered. Without
passing that exam, Mr. Tandia could not continue with his
education and, consequently, would be limited in his
further intellectual and professional pursuits.
Mr. Tandia testified that in December 2000, shortly after
he was released from detention, he paid a bribe and
obtained a passport and visa. He crossed the border to
Senegal, and from there he traveled to the United States.
Mr. Tandia’s family members corroborated his testimony.
His uncle, Bocar Tandia, who received asylum in the
United States after leaving Mauritania in 1992, testified at
the hearing. He stated that, like Mr. Tandia, he was in-
volved in the UFD, “the main political opposition there
in Mauritania fighting against the corrupted regime.” Id. at
279. According to Bocar, from 1989 to the present, many
black Africans, such as members of the Soninke tribe,
experienced “problems” in Mauritania. Id. at 280. Bocar
testified that, if Mr. Tandia returned to Mauritania, he
would be denied basic rights as a citizen, including educa-
tion. Mr. Tandia also submitted an affidavit from a cousin,
Issaka Tandia, who corroborated his membership in the
UFD and opined that Mr. Tandia was “in danger of being
persecuted . . . arrested, imprisoned, and possibly even
killed” due to his politics and his race. Id. at 315. Issaka
and another cousin who submitted a letter on Mr. Tandia’s
behalf have been granted asylum in the United States.
No. 06-2471 5
The IJ denied Mr. Tandia’s requests for relief from
removal. The IJ believed that Mr. Tandia’s credibility was
“lacking on several factors.” Id. at 65. First, the IJ found,
Mr. Tandia provided inconsistent testimony about the
year he had transferred from public school to private
school and the year he had resumed political activity
after his detention in 1994. Second, the IJ found im-
plausible one of the reasons Mr. Tandia had given for
fearing removal to Mauritania, namely, that he could be
punished for leaving the country based on his opposition
to the government. The IJ concluded that this statement
was not credible because the government had given Mr.
Tandia “permission to leave the country” in the form of
a passport. Id. at 66. Finally, the IJ stated that Mr. Tandia’s
reasons for fearing a return to Mauritania were “vague
and unconvincing” and differed from his uncle’s testi-
mony on the subject. Id. Mr. Tandia testified that he
would be persecuted “because he is a member of the
opposition party, he is Soninke, he participated in demon-
strations, and he transferred to a private school”; Bocar, on
the other hand, testified that Mr. Tandia’s “rights as a
citizen would be infringed as the government would
force him to learn the Arabic language and culture.” Id.
In addition to doubting Mr. Tandia’s credibility, the IJ
determined that he had failed to corroborate his testimony.
The IJ noted that the State Department’s Country Reports
for Mauritania painted a somewhat grim picture of life
there for those of Mr. Tandia’s race, tribe and political
affiliation, but concluded that Mr. Tandia nevertheless
lacked specific evidence to corroborate his political
activity or his arrests. The IJ denied all forms of relief,
and the BIA affirmed without opinion.
6 No. 06-2471
II
DISCUSSION
Where, as here, the BIA summarily affirms the IJ’s
decision, we review the IJ’s decision as the final agency
determination. See Ayi v. Gonzales, 460 F.3d 876, 880 (7th
Cir. 2006). Our review is deferential; we will reverse the
IJ’s findings that Mr. Tandia was not credible, had not
suffered past persecution and did not establish a well-
founded fear of future persecution only if we determine
that they are not supported by substantial evidence. See
Diallo v. Ashcroft, 381 F.3d 687, 698 (7th Cir. 2004). Al-
though Mr. Tandia’s opening brief in this court mentions
his claims for withholding of removal and CAT relief, he
does not set forth any arguments in support of these
claims, so they are waived. See Balliu v. Gonzales, 467 F.3d
609, 614 (7th Cir. 2006).
Mr. Tandia first submits that the IJ’s credibility determi-
nation is flawed because it rests on a few minor inconsis-
tencies that do not undermine his testimony that, on two
occasions, he was arrested and detained for a long
period of time and that he was beaten frequently during
the first detention. An IJ’s credibility determination
generally is entitled to deference, but it must be supported
by specific, cogent reasons that bear a legitimate nexus to
the finding, and it cannot rely on trivial details or easily
explained discrepancies. See Ayi, 460 F.3d at 880; Lhanzom
v. Gonzales, 430 F.3d 833, 843 (7th Cir. 2005).
We agree with Mr. Tandia that the IJ’s reasons for
discrediting his testimony concern only insignificant
details in the account he gave of his persecution. The first
two inconsistencies relied upon by the IJ concern dates:
when Mr. Tandia transferred to private school and when
No. 06-2471 7
he reengaged in public political activity after being de-
tained and beaten in 1994. Indeed, Mr. Tandia’s written
statement and oral testimony diverge on these points: In
his written account, Mr. Tandia stated that he transferred
to private school “in January of 1998,” A.R. at 394; at the
hearing, Mr. Tandia stated at least four times that he began
private school in 2000. Id. at 248, 264, 273, 275-76. When
confronted about the discrepancy, Mr. Tandia explained
that he had not enrolled immediately in private school
after leaving public school because he had to “repeat
some classes” before he could begin his senior year at the
private school. Id. at 275-76. Rather than evaluate this
explanation, the IJ ignored it, and concluded instead that
the discrepancy in the dates rendered Mr. Tandia an
incredible witness.1 Notably, the central points of Mr.
1
We are reluctant to place much weight on the inconsistency
between Mr. Tandia’s written and oral statements on this
matter because we note that this is one of the many areas of
testimony that is difficult to understand from the transcript.
After the interpreter initially did not understand Mr. Tandia’s
answer to the question “Were you doing these review classes
during 1998 and 1999?”, A.R. at 275, Mr. Tandia repeated his
answer, which appears in the transcript as: “If I hadn’t done
these classes, they would not have given me the (indiscernible)
or the paper that (indiscernible) you have to have to have the
right level, then I could get up to the senior classes of the
private school.” Id. at 276. This response is typical of the
testimony on the timing of Mr. Tandia’s education and political
activities, and we find it striking that the IJ attached so much
weight to testimony that is barely coherent. This is just one
example of the lack of clarity we observed in the transcript of the
second hearing. For example, the interpreter admitted several
times that he could not understand Mr. Tandia’s responses, id.
(continued...)
8 No. 06-2471
Tandia’s testimony were consistent: that the government
enacted Arabic-only instruction in the public schools and
that Mr. Tandia changed schools so that he could con-
tinue his lessons in French. See San Kai Kwok v. Gonzales,
455 F.3d 766, 769 (7th Cir. 2006) (holding that the IJ errone-
ously discredited an alien who “confused the dates but
consistently identified” details of the underlying events);
Hanaj v. Gonzales, 446 F.3d 694, 700 (7th Cir. 2006) (holding
that the IJ erroneously discredited the petitioner based on
details when the alien’s description of “the acts forming
the basis of his persecution claim” was consistent). Indeed,
the transcripts Mr. Tandia placed in the record support
his testimony that he transferred to private school, and
the State Department Report confirms that bilingual
education ended around this time.
The date on which Mr. Tandia resumed political activi-
ties is also insignificant because he consistently testified
that his arrest for that activity occurred in August 2000,
that he was arrested with a number of his classmates and
that he was detained for four months. See San Kai Kwok,
455 F.3d at 769; Hanaj, 446 F.3d at 700. Moreover, the
statement in his affidavit that he started to organize
opposition to the government’s education policies in 1998
is not inconsistent with his hearing testimony that he was
arrested and detained for such activity in 2000.
1
(...continued)
at 230, 232, 243, 271, 275, and Mr. Tandia’s translated testimony
is peppered with the notation “indiscernible,” see, e.g., id. at 107-
09, 228-31, 244-45. At times, Mr. Tandia himself attempted
to correct what he believed was incorrect translation. Id. at
230, 257.
No. 06-2471 9
The IJ’s next reason for discrediting Mr. Tandia also is
not supported by the record. The IJ found it implausible
that the government might, as Mr. Tandia testified, perse-
cute him because, among other reasons, he left the
country; the IJ justified this opinion on the ground that the
government would not have given Mr. Tandia a passport
if that were the case. As Mr. Tandia points out, however,
he had testified that he obtained his passport through
bribery; therefore, the issuance of a passport did not
indicate official approval of his plans. The IJ’s inference
that the Mauritanian government approved of Mr. Tandia’s
departure is not based on evidence in the record, but is
based on speculation and conjecture. We cannot uphold
such a finding. See Kllokoqi v. Gonzales, 439 F.3d 336, 341
(7th Cir. 2005).
The IJ’s final reason for discrediting Mr. Tandia rests on
testimony that the IJ summarily described as “vague and
unconvincing.” The IJ seems to suggest that Mr. Tandia
and his uncle gave different reasons for why Mr. Tandia
should fear future persecution, but no inconsistency is
evident between Mr. Tandia’s testimony and that of his
uncle. Mr. Tandia listed a number of reasons he expected
mistreatment—his political party, his race, his tribe. His
uncle added some detail about the rights of citizenship
Mr. Tandia would be denied as a result of Mr. Tandia’s
membership in those persecuted classes. This illusory
inconsistency is insufficient to discredit Mr. Tandia’s
testimony wholesale because, like the other reasons for the
adverse credibility determination, it is unrelated to Mr.
Tandia’s central claim that he was twice arrested without
cause and detained. See Hanaj, 446 F.3d at 700. The IJ never
addressed whether the events Mr. Tandia described could
amount to past persecution; instead, he focused on insignif-
10 No. 06-2471
icant details. In sum, the IJ’s credibility determination
suffers from “factual error, bootless speculation, and errors
of logic.” See Pramatarov v. Gonzales, 454 F.3d 764, 765 (7th
Cir. 2006) (collecting cases).
The IJ also determined that, because Mr. Tandia was not
a credible witness, his testimony alone did not suffice to
meet the burden of proof in establishing eligibility for
asylum. The IJ, therefore, looked to the corroborating
evidence Mr. Tandia provided in support of his claims,
and, finding it lacking, concluded that his request for
asylum must be denied. Mr. Tandia challenges this latter
finding; specifically, he contends that his claims are
corroborated by evidence such as his UFD membership
card, his school transcripts, his uncle’s testimony and
the country reports that support his description of con-
ditions in Mauritania. Mr. Tandia further suggests that
corroboration was unnecessary because the IJ never
discredited his testimony regarding his arrests, detentions
and beating.2
We note that, if, on remand, the IJ concludes that Mr.
Tandia is a credible witness, his testimony, standing alone
and without the aid of corroborating evidence, may
establish his eligibility for asylum. See 8 C.F.R. 208.13(a);
Dawoud v. Gonzales, 424 F.3d 608, 612 (7th Cir. 2005). Our
conclusion that the asserted bases for the finding of
incredibility cannot stand, however, necessarily does not
render Mr. Tandia a “credible” witness. Rather, the IJ must
2
We note, however, that although it is true that the IJ never
mentioned Mr. Tandia’s testimony about the events that formed
the basis of his claims, the IJ discredited Mr. Tandia’s testimony
as a whole, not just the specific areas of testimony that the
IJ found inconsistent.
No. 06-2471 11
reexamine his conclusion regarding credibility before
turning afresh to the issue of corroboration.
As we have stated, before an IJ may deny a claim for lack
of corroboration, the IJ must (1) make an explicit cred-
ibility finding; (2) explain why it is reasonable to expect
additional corroboration; and (3) explain why the alien’s
explanation for not producing that corroboration is inade-
quate. Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir.
2006); Diallo v. Gonzales, 439 F.3d 764, 765-66 (7th Cir. 2006);
Hussain v. Gonzales, 424 F.3d 622, 629 (7th Cir. 2005). Had
the IJ’s ruling rested on a conclusion that additional
corroborating evidence was available, but had not been
provided, we would be constrained in our review by
§ 101(e) of the REAL ID Act; that section requires us to
accept “a determination made by a trier of fact with respect
to the availability of corroborating evidence” unless a
reasonable trier of fact would be “compelled to conclude
that such corroborating evidence is unavailable.”3 Emer-
3
We note, for clarity, that the REAL ID Act made two changes
to existing law on the issues of credibility and corroboration. See
Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, Division B—REAL
ID Act of 2005, Pub. L. No. 109-13, § 101, 119 Stat. 231, 302-05
(codified at 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C),
1252(b)(4)). First, it constrains our review of an IJ’s determina-
tion regarding the availability of corroborating evidence, as
discussed above. REAL ID § 101(e) (amending 8 U.S.C.
§ 1252(b)(4)). This provision applies to all cases, regardless of the
date of filing. Id. § 101(h)(3).
A closely related provision of REAL ID found in § 101(a)(3)
amends the standards contained in 8 U.S.C. § 1158(b)(1) for
determining whether an asylum applicant has satisfied his
(continued...)
12 No. 06-2471
gency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, Division
B—REAL ID Act of 2005, Pub. L. No. 109-13, § 101(e), 119
Stat. 231, 305 (codified at 8 U.S.C. § 1252(b)(4)); see also
Ikama-Obambi, 470 F.3d at 724-25. Our review of the IJ’s
decision in this case, however, reveals that the IJ made no
explicit finding regarding the availability of additional
corroborating evidence; his determination was only that
Mr. Tandia, who the IJ had determined had not testified
credibly, had failed to satisfy his burden of proof because
he had failed to provide sufficient corroborating evidence.
As this court’s recent decisions make clear, however, the
IJ must address the reasons offered by an alien for failing
to provide the specific pieces of documentation that the
IJ deems necessary to sustain the alien’s burden of proof.
Id. at 725; Hussain, 424 F.3d at 629; Diallo, 439 F.3d at 765-
66; see also Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000)
(“[I]n the absence of . . . an assessment of the petitioner’s
reasons for his failure to produce further corroboration . . .
[the IJ’s] ultimate ruling cannot stand.”) (quoted in
Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004)).
Here, the IJ’s decision on the lack of corroboration never
addressed the explanations that Mr. Tandia offered for
3
(...continued)
burden of proof in applications filed on or after the date of
enactment of the Act (May 11, 2005), see § 101(h)(2); it notes that
an IJ may require an otherwise credible applicant to provide
corroborating evidence in support of his claim, unless it
cannot reasonably be obtained. Because Mr. Tandia’s applica-
tion was filed before May 11, 2005, it did not apply to Mr.
Tandia’s proceedings before the IJ. See Ikama-Obambi v. Gonzales,
470 F.3d 720, 725 & n.2 (7th Cir. 2006).
No. 06-2471 13
the absence of the documentation the IJ wanted. For
example, the IJ faulted Mr. Tandia for failing to corroborate
his testimony “that he was the leader of the 1994 demon-
stration, that he was arrested and imprisoned in 1994 and
2000, or that he sustained bodily injury from government
officers.” A.R. at 67. Mr. Tandia had explained, however,
that he could not document his arrests because he was
never charged with any crime and because he could not
approach anyone in government to verify his story. This
explanation is bolstered by record evidence that baseless
arrests and prolonged imprisonments of political prisoners,
including students, occur in Mauritania. The IJ never
addressed Mr. Tandia’s explanation for the lack of other
documentation. The IJ also failed to address Mr. Tandia’s
explanation that he never sought medical treatment for
the injuries he suffered during the first arrest because he
was afraid of seeking treatment at a government hospital,
and so he took advantage of “[t]raditional medicine that
you practice inside the family.” Id. at 241.
In addition to failing to acknowledge Mr. Tandia’s
explanation for the absence of certain evidence, the IJ
gave short shrift to the supporting documentation Mr.
Tandia did provide. For example, Mr. Tandia provided a
copy of his UFD membership card, and the State Depart-
ment Reports on Human Rights Practices confirm his
testimony that the UFD was among the few opposition
parties banned by the government. Also, the oral testi-
mony of Bocar Tandia and the affidavit from Issake
Tandia corroborate Mr. Tandia’s involvement in the
UFD. Furthermore, the documents in the record prepared
by the State Department and various human rights organi-
zations lend credence to Mr. Tandia’s claims to the ex-
tent that they document arbitrary arrests, prolonged
14 No. 06-2471
detentions of political prisoners, and the “ ’Arabization’ in
the schools and in the workplace” at the expense of other
citizens. A.R. at 311; see also id. at 300-11, 483.
Conclusion
Because the IJ discredited Mr. Tandia based on trivial
inconsistencies and failed to support the conclusion that
Mr. Tandia’s testimony was not corroborated by evidence
in the record, we grant the petition for review and reverse
the order of the Board of Immigration Appeals.
PETITION FOR REVIEW GRANTED;
REVERSED AND REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-23-07 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8569581/ | *198TEXTO COMPLETO DE LA SENTENCIA
El 2 de septiembre de 2003, PROPPER International, Inc. presentó Recurso de Apelación en el que nos solicitó dejar sin efecto una Orden emitida por el Tribunal de Primera Instancia, Sala Superior de San Juan, el 8 de mayo de 2003 y notificada el 15 de mayo de 2003. Mediante dicha orden, el tribunal a quo denegó una petición de PROPPER International, Inc. para incluir el pago de intereses por mora a la sentencia emitida por éste el 7 de diciembre de 1999.
Por los fundamentos que expondremos a continuación, acogemos el recurso presentado como una Petición de Certiorari, EXPEDIMOS el auto y CONFIRMAMOS la orden recurrida.
I
PROPPER International, Inc. (en adelante PROPPER) es una corporación dedicada a la manufactura de ropa militar, ropa civil, sombreros y gorras. Para la fecha de los hechos relacionados con este caso, PROPPER tenía centros de operaciones en Mayagüez y Cabo Rojo, un almacén de telas centralizado en Mayagüez y un almacén de telas obsoletas en Cabo Rojo.
Desde el 1984 hasta el 31 de agosto de 1991, PROPPER tuvo en vigor una póliza de seguro, “Comercial Crime Coverage”, expedida por General Accident Insurance Company para protegerse contra actos deshonestos cometidos por sus empleados. El 31 de agosto de 1991, PROPPER cambió de aseguradora y mantuvo hasta el 31 de agosto de 1994, otra póliza de seguro por deshonestidad expedida por Preferred Risk Insurance Company con cubierta de $100,000.00 por ocurrencia y $900,000.00 de exceso.
El 17 de febrero de 1992, PROPPER descubrió el robo de telas en la compañía mediante una llamada anónima recibida y decidió realizar una investigación interna con la intervención de la policía. Como resultado de dicha investigación, el gerente general del almacén, el gerente de telas y varios empleados del almacén resultaron convictos por hurto.
Más tarde, PROPPER contrató a una firma independiente de contadores públicos autorizados, Diego Chévere y Asociados, para determinar la pérdida sufrida y reclamar dicha cantidad a las aseguradoras bajo las pólizas de “Comercial Crime Coverage”. El estudio realizado por Diego Chévere y Asociados determinó que la pérdida sufrida por el robo de telas fue de $1,219,759.35, de los cuales PROPPER reclamó $757,938.02 a Preferred Risk Insurance Company y $461,821.33 a General Accident Insurance Company por la pérdida de *199materiales y ropa de segunda. Las aseguradoras, por su parte, contrataron a la firma de auditores Matson, Driscoll & Damico para examinar las cifras reclamadas.
Luego de un año de negociaciones infructuosas, el 15 de julio de 1993, PROPPER presentó Demanda por incumplimiento de contrato y daños y perjuicios contra General Accident Insurance Company (en adelante General Accident) y Preferred Risk Insurance Company (en adelante Preferred) en la que reclamó el pago de la pérdida sufrida ($1,219,759.35) más $250,000.00 en daños, costas, honorarios de abogado e intereses por temeridad. En la misma, PROPPER alegó que las aseguradoras incumplieron con el contrato de seguros al no pagar la reclamación correspondiente a la pérdida sufrida por los hurtos de mercancía perpetrados por sus empleados. El 23 de septiembre de 1994, luego de haber examinados todos los contratos existentes durante el período de la reclamación, PROPPER presentó moción para enmendar la cuantía de la pérdida reclamada a $2,300,000.00.
El 10 de diciembre de 1997, el Tribunal de Primera Instancia designó al Ledo. Amaldo López Rodríguez como Comisionado Especial para evaluar la prueba presentada por las partes y determinar la cuantía de la pérdida y la distribución de dicha pérdida entre las compañías aseguradoras.
El 15 de septiembre de 1998, Preferred consignó en el tribunal $37,700.00. En total, las co-demandadas consignaron $106,592.20 en pago de la reclamación. Estas determinaron dicha cantidad a base de los hurtos admitidos por los empleados convictos en 1992.
El 22 de junio de 1999, el Comisionado Especial designado presentó informe ante el Tribunal de Primera Instancia en el que detalló el método utilizado para determinar la pérdida atribuible al hurto de mercancía y valoró la misma en $2,207,182.11, de los cuales a General Accident le corresponde pagar $1,547,435.74 (62.2%) y a Preferred $659,746.37 (37.8%), menos $10,000.00 de deducible respectivamente. El Comisionado indicó que los actos de las aseguradoras constituyeron temeridad al limitar su posición a impugnar el informe presentado por PROPPER y no realizar un informe de valoración. Por lo que, recomendó la imposición de $5,000.00 a cada uno de honorarios de abogado y el pago de intereses por temeridad.
El 7 de diciembre de 1999, el Tribunal de Primera Instancia emitió sentencia mediante la cual adoptó en su totalidad el informe presentado por el Comisionado Especial, declaró Con Lugar la demanda y condenó a las co-demandadas al pago de $2,187,182.11, de los cuales General Accident debería pagar $1,537,435.74 y Preferred debería pagar $649,746.37. Además, de $5,000.00 de honorarios de abogado por temeridad e intereses por temeridad.
General Accident y Preferred acudieron ante este Tribunal mediante sendos recursos de apelación en los que solicitaron la revocación de dicha sentencia. El 30 de abril de 2001, emitimos sentencia, notificada el 2 de mayo de 2001, en la que revocamos la determinación de temeridad y devolvimos el caso al Tribunal de Primera Instancia para dilucidar la controversia en cuanto a la partida de $338,085.24 por unos pantalones de segunda.
Inconformes, las aseguradoras acudieron ante el Tribunal Supremo, quien el 10 de diciembre de 2002 emitió sentencia, notificada el 11 de diciembre de 2002, mediante la cual modificó nuestro dictamen para dejar sin efecto la devolución del caso al Tribunal de Primera Instancia, eliminar la concesión de indemnización por los pantalones de segunda ($338,085.24) y la imposición de honorarios de abogado por temeridad.
El 3 de enero de 2003, Preferred consignó en el Tribunal de Primera Instancia $614,190.62 en pago de la sentencia más intereses hasta el 31 de diciembre de 2002 y $353.10 en pago de intereses hasta el 3 de enero de 2003. El 15 de enero de 2003, PROPPER presentó moción en reparo a la consignación en-la que alegó que la cantidad consignada por Preferred no incluyó los intereses por mora que el incumplimiento de la obligación *200devenga desde la fecha de la pérdida hasta el pago final y que Preferred dedujo una partida por los pantalones de segunda, la cual sólo es atribuible a General Accident. Según PROPPER, Preferred adeudaba hasta esa fecha $984,110.86 en intereses desde el 17 de febrero de 1992, por tanto, el total adeudado por Preferred al 31 de diciembre de 2002 es $1,643,857.23. Por último, PROPPER solicitó el retiro de los fondos consignados sin que esto signifique que la consignación está correcta y fue aceptada.
El 26 de febrero de 2003, Preferred contestó la moción presentada por PROPPER en la que adujo que la pérdida por los pantalones de segunda ($338,085.24) era atribuible a ambas aseguradoras y que a base del por ciento utilizado para distribuir el total de pérdida, redujo dicha partida del total de la sentencia, según ordenado por el Tribunal Supremo. Preferred añadió que para que una parte tenga derecho a intereses por mora, éstos deben ser concedidos en la sentencia y que los intereses post-sentencia adeudados desde el 12 de julio de 1999 hasta el 31 de diciembre de 2002, eran $129,940.47.
El 28 de febrero de 2003, General Accident consignó en el Tribunal de Primera Instancia $1,612,706.12 en pago de la sentencia, según modificada por el Tribunal Supremo. El 28 de abril de 2003, PROPPER presentó una segunda moción en solicitud del retiro de los fondos consignados en la que indicó que ambas aseguradoras dedujeron el deducible de $10,000.00 de la cantidad consignada, el cual ya había sido ajustado de la cantidad determinada en la sentencia y solicitó el pago de intereses por mora y permiso para retirar la suma consignada en el tribunal como un abono al importe total de la sentencia con sus intereses sin que eso signifique que la consignación está correcta y que fue aceptada.
El 8 de mayo de 2003, el Tribunal de Primera Instancia emitió una orden, notificada el 15 de mayo de 2003, mediante la cual declaró No Ha Lugar el pago de intereses por mora, debido a que al momento de surgir la pérdida, la cantidad total de ésta no había sido determinada, no era líquida ni exigible, sino que la misma fue determinada mediante la sentencia emitida por el Tribunal Supremo y ordenó expedir un cheque por los fondos consignados a favor de PROPPER.
El 28 de mayo de 2003, PROPPER presentó moción en solicitud de reconsideración en la que alegó que desde el momento de la presentación de la demanda hasta la sentencia emitida por el Tribunal Supremo, la cuantía de la reclamación siempre fue la misma y que el informe del Comisionado Especial concedió entero crédito a la auditoría realizada por la firma de auditores contratada por la parte demandada y a base de dicha información fue que emitió su recomendación. El 4 de agosto de 2003, el Tribunal de Primera Instancia emitió orden, la cual fue notificada el 27 de agosto de 2003, en la que declaró Sin Lugar la moción de reconsideración.
El 2 de septiembre de 2003, PROPPER acudió ante nos mediante recurso de apelación en el que nos solicitó dejar sin efecto la orden emitida por el Tribunal de Primera Instancia e imponer el pago de intereses por mora. PROPPER imputa al tribunal a quo la comisión de los siguientes dos errores:
“1. Erró el tribunal apelado al determinar que la solicitud de pago de intereses por mora es improcedente en derecho.
2. Erró el tribunal apelado al determinar que la pérdida no estaba determinada. ”
Por tratarse de una orden interlocutoria y no de una sentencia final, acogemos el recurso de apelación presentado como una petición de certiorari.
II
El Derecho configura la morosidad como una modalidad de cumplimiento anormal que genera particulares consecuencias. Por morosidad, entendemos un concepto que engloba dos significados; en su sentido lato, mora es el retraso en el cumplimiento de una obligación, y en sentido propio y jurídico, sólo es mora el retraso *201culpable en el cumplimiento, el cual no quita la posibilidad del cumplimiento tardío, porque si por consecuencia del retraso desaparece la posibilidad de poder cumplir la obligación, más que mora sería incumplimiento total. En síntesis, la mora supone el cumplimiento tardío de la obligación, José Castán Tobeñas, Derecho Civil Español, Común y Foral, Tomo III, Madrid, Ed. Reus S.A., 1992, páginas 236-237; Eduardo Vázquez Bote, Tratado Teórico, Práctico y Crítico de Derecho Privado Puertorriqueño, T. V, New Hampshire, Ed. Equity, 1991, página 230.
En el Derecho puertorriqueño sólo existen dos hipótesis en que es factible la moratoria judicial, éstas son, bajo las especiales circunstancias que representan las obligaciones recíprocas, en que la parte invoca la resolución por incumplimiento, o cuando disposiciones especiales conceden moratoria, Eduardo Vázquez Bote, Tratado Teórico Práctico y Crítico de Derecho Privado Puertorriqueño, supra, página 236.
Los requisitos necesarios para que pueda darse la mora del deudor son los siguientes:
“1. Que sea una obligación dirigida a una prestación positiva (de dar o hacer), debido a que en las obligaciones de no hacer no existe la mora. Por tanto, la obligación no puede consistir en una omisión;
2. La obligación sea una exigible, vencida y determinada (líquida). Es decir, que ya sea por la naturaleza de la obligación o por haberlo requerido el acreedor, la deuda deba ser satisfecha. Aquí caben varias posibilidades, que las partes hayan acordado la fecha en que debe efectuarse la prestación como un factor esencial de la obligación, o que a pesar de no haber hecho tal consideración, el momento del cumplimiento sea igualmente esencial debido al tipo de obligación. ”
No puede estimarse la morosidad de las obligaciones que consisten en el pago de una cantidad cuando la determinación de ésta dependa de un juicio previo encaminado a precisarla, de un peritaje, o de una liquidación de cuentas. Cuando las cantidades son líquidas y exigióles, la mora empieza a contar desde la presentación de la demanda, pero si las cantidades son ilíquidas o indeterminadas, cuyo montante deba ser determinado, la mora comienza desde que la sala sentenciadora emite la sentencia, Valcourt v. Iglesias, 78 D.P.R. 630, 638-639 (1955).
1. Que el deudor retarde culpablemente el cumplimiento de la obligación. Pero, si el retraso en el cumplimento deriva de circunstancias inimputables al deudor, no existe mora, ya que el deudor no sufre los efectos de la mora cuando el retraso es por una causa excusable, Valcourt v. Iglesias, supra, a la página 640.
2. El acreedor requiera el pago al deudor, ya sea judicial o extrajudicialmente, pues dice el Artículo 1053 del Código Civil puertorriqueño, 31 L.P.R.A. §3017, que “incurren en mora los obligados a entregar o hacer alguna cosa desde que el acreedor les exija judicial o extrajudicialmente el cumplimiento de su obligación. ” No obstante, este artículo exime de dicho requisito “cuando la obligación o la ley lo declaren así expresamente” o “cuando de su naturaleza y circunstancias resulte que la designación de la época en que había de entregarse la cosa o hacerse el servicio, fue motivo determinante para establecer la obligación”.
Los efectos de la mora deben distinguirse en consideración al tipo de obligación que sea. En las obligaciones de dar, los efectos de la mora del deudor son: (1) indemnizar al acreedor de los daños y perjuicios que la tardanza ocasione. Así lo determina claramente el Artículo 1054 del Código Civil, 31 L.P.R.A. Sección 3018, conforme al cual, “quedan sujetos a la indemnización de los daños y perjuicios causados, los que en el cumplimiento de sus obligaciones incurrieren en dolo, negligencia o morosidad, y los que de cualquier modo contravinieren al tenor de aquéllas”-, y (2) responder de los riesgos, perecimiento y deterioros de la cosa, aunque puedan haberse producido por caso fortuito. El Artículo 1049 del Código Civil, 31 L.P.R.A. Sección 3013, señala que “si el obligado se constituye en mora, o se halla comprometido a entregar una misma cosa a dos o más personas diversas, serán de su cuenta los casos fortuitos hasta que se realice la entrega.” Mientras *202que en las obligaciones de hacer, la mora obliga únicamente a la indemnización de los daños y perjuicios.
*201201
*202Si la obligación consiste en el pago de una cantidad de dinero, la indemnización, si no hay pacto en contrario, consistirá en el pago de los intereses convenidos. Si no hay pacto relativo a intereses después del vencimiento del débito, lo único que cabe exigir, además de los devengados durante el plazo contractual, son los intereses legales desde la fecha en que el deudor incurrió en mora. Véase, Artículo 1061 del Código Civil, 31 L.P.R.A. Sección 3025; Piovanetti v. Vivaldi, 80 D.P.R. 108, 113-114 (1957). Los intereses por la demora no se deben hasta luego de la intimidación judicial o extrajudicial.
El concepto de intereses por mora es distinto al de intereses legales. Los intereses por mora surgen del Artículo 1061 del Código Civil, 31 L.P.R.A. Sección 3025, mientras que los intereses legales surgen de la Regla 44.3 de Procedimiento Civil, 32 L.P.R.A. Apéndice III. Los intereses legales, por disposición estatutaria, forman parte integrante de la sentencia y pueden ser recobrados aun cuando no estén mencionados en la misma. En ese caso, los intereses son considerados automáticamente como parte de la sentencia. El propósito de esta regla es promover que el deudor de una sentencia cumpla con prontitud los términos de ésta y compense expeditamente a la parte con derecho a ella. Estos intereses son concedidos, con el fin de desalentar la presentación de demandas frívolas, de evitar la posposición del cumplimiento de las obligaciones, y estimular el pago de sentencias en el menor tiempo posible. Montañéz v. U.P.R., 156 D.P.R._ (21 marzo 2002), 2002 J.T.S. 40, a las páginas 858-859.
Pero los intereses por mora no están en la misma categoría. No constituyen parte integrante ni inseparable de la obligación principal, sino que son considerados como una indemnización independiente de daños y perjuicios, impuesta como penalidad por la demora en el pago, lo que constituye un derecho personal del acreedor. Contrario a los intereses legales, éstos no son una penalidad adherida automáticamente a la obligación principal por ministerio de ley, P.R. & Ame. Ins. Co. v. Tribunal Superior, 84 D.P.R. 621, 623 (1962); Rivera v. Crescioni, 77 D.P.R. 47, 55-56 (1954).
Los Artículos 1053, 1054, 1061 y 1062 del Código Civil, 31 L.P.R.A. Secciones 3017-3018, Secciones 3025-3026, no deben ser interpretados en el sentido que tan pronto vence una obligación de naturaleza civil, sobre la cual no hay disposición alguna, el deudor incurre en mora. No podemos afirmar en términos generales que todo incumplimiento de una obligación resulta culpa del deudor. La forma más viable de descubrir los motivos del incumplimiento, no es presumirlas de antemano, sino esperar la pmeba correspondiente antes de su declaración judicial, Valcourt v. Iglesias, supra, a la página 641.
La doctrina ha explicado que para que exista mora es necesario que la obligación esté vencida y líquida. Una deuda está vencida cuando ha pasado el momento de su exigibilidad y es líquida cuando existe la certeza de lo debido. En el caso ante nos, PROPPER requirió a General Accident y a Preferred en julio de 1992, el pago de los daños ocasionados por el robo de telas. No obstante, dicha cantidad estaba en controversia. La cantidad no era líquida porque fue necesaria la celebración de un juicio para determinarla. No es hasta que el tribunal designa al Comisionado Especial que éste determina el valor real de la pérdida y el por ciento de responsabilidad atribuible a cada aseguradora. Anterior a eso, las partes no habían logrado llegar a un acuerdo al respecto. Por lo que no es hasta que el Tribunal de Primera Instancia emite sentencia que surge la obligación de las aseguradoras demandadas de pagar lo ordenado por éste a PROPPER. Por lo que los errores señalados por el peticionario no fueron cometidos. Luego de haber evaluado el derecho anteriormente expuesto y el expediente ante nos, concluimos, al igual que lo hiciera el Tribunal de Primera Instancia, que no procede la imposición de intereses por mora. El pago de intereses en este caso corresponde al pago de intereses legales post sentencia.
III
En este caso, el Tribunal de Primera Instancia acogió el informe presentado por el Comisionado Especial y determinó que General Accident adeudaba a PROPPER $1,547,435.74, mientras que Preferred adeudaba *203$659,746.37 y restó $10,000.00 de deducible a cada una de dichas cantidades indicadas en la sentencia. Por lo que General Accident tenía que pagar $1,537,435.74 y Preferred tenía que pagar $649,746.37.
Sin embargo, el informe del Comisionado Especial indicaba la existencia de 35,663 pantalones de segunda a un costo de $9.48, lo que suma $338,085.24. Dicha partida fue tomada en consideración al determinar el valor total de la pérdida y fue atribuida a ambas aseguradoras. No obstante, el 10 de diciembre de 2002, el Tribunal Supremo eliminó dicha partida. Por lo que la cantidad indicada en la sentencia del foro de instancia debe ser ajustada. El Tribunal de Primera Instancia imputó 62.2% de responsabilidad a General Accident y 37.8% de responsabilidad a Preferred. El 62.2% de $338,085.24 es $210,289.02 y el 37.8% de dicha cantidad es $127,796.22. Es decir, que a lo adeudado por General Accident ($1,537,435.74) hay que restarle $210,289.02, lo que da un total de $1,327,146.72 y a lo adeudado por Preferred ($649,746.37) le restamos $127,796.22, eso da un total de $521,950.15.
El 15 de septiembre de 1998, General Accident consignó en el tribunal $68,892.20 y Preferred consignó $37,700.00. Si a lo adeudado por cada una de las aseguradoras restamos dicha cantidad, General Accident tenía que pagar $1,258,254.52 por concepto de la sentencia más intereses legales al 8.75% desde 12-7-1999 al 2-28-2003, fecha en que consignó $1,612,706.12 en el tribunal. Mientras que Preferred adeudaba $484,250.15 por concepto de la sentencia más intereses legales al 8.75% desde 12-7-1999 al 1-3-2003, fecha en que consignó $614,543.72 en el tribunal.
IV
En atención a lo anteriormente expresado, EXPEDIMOS el Auto de Certiorari y CONFIRMAMOS la Orden recurrida.
El Juez Rodríguez Muñiz impondría costas, gastos y honorarios de abogados y sanción económica de $1,000.00 a la parte peticionaria por entender que el recurso presentado es frívolo y temerario. Véase, Regla 85 B del Reglamento Transitorio del Tribunal Apelativo.
Lo acordó y manda el Tribunal y lo certifica la Secretaria General.
Aida Ileana Oquendo Graulau
Secretaria General
ESCOLIOS 2004 DTA 98
1. Póliza #SMP-103762.
2. Casos KLAN-2000-00212 y KLAN-2000-00213.
3. Casos CC-2001-534 y CC-2001-541.
4. Véase, Regla 53 de Procedimiento Civil, 32 L.P.R.A. Apéndice III.
5. José Castán Tobeñas, Derecho Civil Español, Común y Foral, Tomo III, Madrid, Ed. Reus S.A., 1992, páginas 238-240; Eduardo Vázquez Bote, Tratado Teórico, Práctico y Crítico de Derecho Privado Puertorriqueño, T. V., New Hampshire, Ed. Equity, 1991, páginas 230-233.
6. José Castán Tobeñas, Derecho Civil Español, Común y Foral, supra, páginas 242-243; Eduardo Vázquez Bote, Tratado Teórico Práctico y Crítico de Derecho Privado Puertorriqueño, supra, páginas 234-235; José Puig Brutau, Fundamentos de Derecho Civil, Tomo I, Volumen II, Barcelona, Ed. Bosch, 1988, página 419.
*2047. La Regla 44.3 de Procedimiento Civil dispone en lo pertinente que: “(a) Se incluirán intereses al tipo que fije por reglamento la Junta Financiera de la Oficina del Comisionado de Instituciones Financieras y que esté en vigor al momento de dictarse la sentencia, en toda sentencia que ordena el pago de dinero, a computarse sobre la cuantía de la sentencia desde la fecha en que se dictó la sentencia y hasta que ésta sea satisfecha, incluyendo costas y honorarios de abogado. El tipo de interés se hará constar en la sentencia.
La Junta fijará y revisará periódicamente la tasa de interés por sentencia tomando en consideración el movimiento en el mercado y con el objetivo de desalentar la radicación de demandas frívolas, evitar la posposición irrazonable en el cumplimiento de las obligaciones existentes y estimular el pago de las sentencias en el menor tiempo posible. ” | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3002325/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1174
JOHN C. W OOLARD ,
Plaintiff-Appellee,
v.
R OBERT C. W OOLARD ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cv-07280—Martin C. Ashman, Magistrate Judge.
A RGUED S EPTEMBER 23, 2008—D ECIDED O CTOBER 29, 2008
Before B AUER, C UDAHY and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. In this diversity action, John C.
Woolard (Plaintiff) sued his uncle Robert C. Woolard
(Defendant) for mismanaging a trust established by Plain-
tiff’s father for which Defendant was the trustee. The
district court granted Plaintiff’s motion for summary
judgment, holding that Defendant breached the ex-
press terms of the trust and also violated his statutory
and fiduciary duties under Illinois. We affirm.
2 No. 08-1174
I. BACKGROUND
Plaintiff’s father, John F. Woolard, established the
John C. Woolard Present Interest Trust in 1983 for his
infant son. Plaintiff was the Trust’s sole beneficiary and
Defendant, the settlor’s brother, agreed to serve as
Trustee. The terms of the Trust permitted Defendant to
distribute the income and principal of the Trust for the
sole benefit of Plaintiff. The Trust provided that payment
of income or principal to a minor
may be applied directly in the sole discretion of the
Trustee for the benefit of such person or may be made
to any one or more of the following: (a) directly to
such beneficiary; (b) to the legally appointed
guardian . . . of such beneficiary; or (c) to a custodian
under the Uniform Gifts to Minors Act in any juris-
diction.
The Trust Agreement allowed Defendant to loan “any part
of the trust property to any person (other than [Plain-
tiff’s father]) or entity upon adequate security and at
current interest rates.”
Plaintiff’s father initially funded the Trust with $500,
but at one point it contained over $800,000. When Plain-
tiff’s father died in 2002, the value of the Trust was ap-
proximately $18,000. It is uncontested that between 1990
and 2001, Defendant distributed more than $850,000 to
Plaintiff’s father, including over $300,000 in one six-month
period. Defendant kept no record of the purposes for
which the funds were distributed and never requested
or received any receipts from Plaintiff’s father indicating
how the funds were benefitting Plaintiff. Defendant claims
No. 08-1174 3
he believed the distributions were being applied for
Plaintiff’s benefit, but does not deny that he made the
disbursements without any specific knowledge re-
garding how Plaintiff’s father would use the funds.
The district court held that distributing funds to Plain-
tiff’s father was an express violation of the terms of the
trust. The court also found that Defendant’s failure to
keep any substantive records regarding the purposes of
the distributions violated his duties under the Illinois
Trusts and Trustees Act. Finally, the district court held
that Defendant breached his fiduciary duties by failing to
take reasonable steps to ensure that the Trust’s assets were
used according to the Trust’s purpose and solely for
Plaintiff’s benefit. Because a trustee who breaches the
terms of a trust agreement is personally liable for any
losses that result from the breach, judgment was entered
against Defendant in the amount of the wrongful dis-
tributions plus interest. Grot v. First Bank of Schaumburg,
684 N.E.2d 1016, 1018 (Ill. App. Ct. 1997) (citation omitted).
II. DISCUSSION
On appeal, Defendant argues that the district court
erred in finding the distributions to Plaintiff’s father
violated the terms of the Trust, that the district court
ignored an exculpatory clause in the Trust Agreement
providing for trustee liability only in the case of bad faith,
and that there were adequate records of the Trust activity.
We review a district court’s grant of summary judgment
de novo. Darst v. Interstate Brands Corp., 512 F.3d 903, 907
(7th Cir. 2008) (citations omitted). Summary judgment is
4 No. 08-1174
appropriate when there is no genuine issue as to any
material fact and the moving party is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56(c). We view the
record in the light most favorable to the non-moving
party and draw all reasonable inferences in that party’s
favor. Darst, 512 F.3d at 907 (citation omitted). Illinois
law governs Defendant’s liability in this diversity action.
A. Distributions to Plaintiff’s Father
Defendant first claims that distributing the Trust’s
assets to Plaintiff’s father complied with his duties as
Trustee. Defendant argues that the Trust Agreement
granted him discretion to distribute funds to Plaintiff’s
father and that the Illinois Trusts and Trustees Act en-
dowed him with authority to distribute funds to Plain-
tiff’s father as an adult relative of the minor beneficiary.
Defendant also contends that since Plaintiff’s father had
a legal duty to support his son, it was appropriate to
distribute the funds to Plaintiff’s father and it should be
presumed that Plaintiff benefitted from the funds. Plain-
tiff contends that this case turns simply upon a violation
of the express and exclusive terms of the Trust, which
did not allow for distributions to his father.
“It is axiomatic that the limits of a trustee’s powers are
determined by the instrument which creates the trust.”
Stuart v. Continental Ill. Nat’l Bank & Trust Co., 369 N.E.2d
1262, 1271 (Ill. 1977) (citations omitted). “When a trustee
fails to administer a trust according to its terms, a breach
of trust results.” Northwestern Mut. Life Ins. Co. v. Wiener,
421 N.E.2d 1002, 1004 (Ill. App. Ct. 1981) (citation omitted).
No. 08-1174 5
“When a trustee breaches a trust agreement, whether
wilfully, negligently, or by oversight, he is liable for any
loss to the estate resulting from the breach and must
place the beneficiaries in the position they would have
held had the breach not occurred.” Grot, 684 N.E.2d at
1018 (citations omitted).
The Trust Agreement provided that distributions to a
minor
may be applied directly in the sole discretion of the
Trustee for the benefit of such person or may be
made to any one or more of the following: (a) directly
to such beneficiary; (b) to the legally appointed guard-
ian . . . of such beneficiary; or (c) to a custodian
under the Uniform Gifts to Minors Act in any juris-
diction.
None of the money was distributed directly to Plaintiff
and there was no legally appointed guardian or custodian.
Defendant contends that the district court ignored the
provision allowing distributions to be “applied directly
in the sole discretion of the Trustee for [Plaintiff’s
benefit].” 1 Defendant argues that by giving money to
1
Defendant repeatedly asserts that the Trust Agreement gave
the trustee discretion and that discretionary decisions by a
trustee should not be overturned absent bad faith, fraud, or an
abuse of discretion. Defendant’s commentary, while true, is
irrelevant. Plaintiff’s complaint, and the district court’s judg-
ment did not regard a discretionary decision; they involved a
breach of the express terms of the Trust. A trustee does not
(continued...)
6 No. 08-1174
Plaintiff’s father he was directly applying the money for
Plaintiff’s benefit. Defendant’s position is that it was a
direct application of funds for him to give money to
Plaintiff’s father and for Plaintiff’s father to then give that
money (likely without Defendant’s knowledge) to
Colgate University, for example, to pay for Plaintiff’s
college tuition. This proposal cannot be accepted. The
existence of an intermediary makes it impossible to
characterize this two-part transaction as a direct applica-
tion of funds. Defendant cannot find justification for
the distributions within the terms of the Trust Agreement.
Defendant next contends that the distributions were
permitted by the Illinois Trusts and Trustees Act. The
Act grants a trustee authority
[t]o distribute income and amounts of principal in such
one or more of the following ways as the trustee
believes to be for the best interests of any beneficiary
who at the time of distribution is under legal disabil-
ity or in the opinion of the trustee is unable properly
to manage his affairs because of illness, physical or
mental disability or any other cause:
(a) directly to the beneficiary;
(b) to a duly appointed guardian of the benefi-
ciary;
1
(...continued)
have discretion to violate the trust agreement, nor does a
trustee’s interpretation of the trust agreement define the
bounds of permissible conduct.
No. 08-1174 7
(c) to a custodian for the beneficiary under the
Uniform Transfers to Minors Act;
(d) to an adult relative of the beneficiary;
(e) by expending the money or using the property
directly for the benefit of the beneficiary; and
the trustee is not required to see to the ap-
plication of any distribution so made; and
(f) to a trust, created prior to the time the dis-
tribution becomes payable, for the sole benefit
of the beneficiary and those dependent upon
the beneficiary during his or her lifetime, to
be administered as a part thereof . . . .
760 ILCS 5/4.20. Defendant focuses on paragraph (d),
allowing distribution to an adult relative of the benefi-
ciary. Were it applicable to this case, paragraph (d) would
provide authority to distribute the Trust’s assets
to Plaintiff’s father while Plaintiff was a minor, and thus
under a legal disability. However, the Trusts Act merely
establishes a set of default rules applicable when not
in conflict with the terms of a trust agreement. The
Act provides:
A person establishing a trust may specify in the instru-
ment the rights, powers, duties, limitations and im-
munities applicable to the trustee, beneficiary and
others and those provisions where not otherwise
contrary to law shall control, notwithstanding this
Act. The provisions of this Act apply to the trust to
the extent that they are not inconsistent with the
provisions of the instrument.
760 ILCS 5/3(1).
8 No. 08-1174
Defendant claims that the terms of the Act are not in
conflict with the terms of the Trust. Defendant is mis-
taken. Comparing the language of the Trust Agreement to
that of the Act only confirms that Plaintiff’s father was not
an authorized distributee of the Trust. The Trust Agree-
ment mirrored paragraphs (a), (b), (c), and (e) of the Trusts
Act, but excluded the option to distribute money to an
adult relative and the option to distribute to a related trust.
These were intentional omissions. Inclusio unius est exclusio
alterius. The Trust Agreement also specifically and
uniquely excluded Plaintiff’s father from receiving loans,
at any interest rate, and despite providing adequate
security. The district court came to the natural and appro-
priate conclusion that “the settlor, Plaintiff’s father, took
pains to protect the Trust’s assets from his own
intermeddling” and his “obvious intent [was] to use the
trust as a preventive barrier against his own financial
management.” The Trust Agreement anticipated and
provided for distributions to, or for the benefit of, minors;
the conflicting provision of the Trusts Act, allowing
distributions to an adult relative, does not apply to this
case.
Defendant finally argues that it was logical and appro-
priate to give the Trust’s assets to Plaintiff’s father as the
person with the legal duty to support Plaintiff. This
argument does not require serious discussion. Defendant
cannot avoid his specifically enumerated duties and
limitations under the Trust Agreement by pointing to the
common law duty of parents to support their children.
Similarly, it does not matter whether Defendant believed
the money was benefitting Plaintiff and furthering the
No. 08-1174 9
intent of the settlor; the Trust Agreement simply did
not allow distributions to Plaintiff’s father.
Defendant was not authorized to distribute funds to
Plaintiff’s father by the terms of the Trust, by the Illinois
Trusts and Trustees Act, or by any vague common sense
approach. By distributing funds to Plaintiff’s father,
Defendant breached the express terms of the Trust and
the district court appropriately held Defendant liable
for the resulting losses.
B. Exculpatory Clause
In his brief, Defendant asserts that the district court
erroneously ignored an exculpatory clause in the Trust
Agreement that limits a trustee’s liability to acts or omis-
sions committed in bad faith. Plaintiff contents that
Defendant waived this provision because it was raised
for the first time on appeal. Plaintiff also asserts that
there is sufficient evidence of bad faith in the record to
hold Defendant liable even assuming the validity of
the exculpatory clause. Finally, Plaintiff argues that the
clause cannot shield Defendant from violations of his
fiduciary duties, which are not imposed by the Trust
Agreement, but by Illinois law.
Without citation, Defendant vaguely claims, “[t]he
lower court acknowledged the existence of [the exculpa-
tory clause], but so restricted its application as to render
it completely ineffective.” However, there is no evidence
that the district court was made aware of this
exculpatory clause, let alone that it “acknowledged” it.
10 No. 08-1174
Defendant does not identify when he alerted the
district court to the exculpatory clause, or where he
relied on it in his arguments below. 2 Because Defendant
never raised the issue of the exculpatory clause before
the district court, he has waived it for purposes of review.
See Libertyville, 776 F.3d at 737.
What Defendant did argue before the district court, and
what Defendant wrongly seems to conflate with a dis-
cussion of the exculpatory clause, was that, as a matter
of Illinois common law, “discretionary decisions by
trustees are not to be overturned in the absence of ex-
tenuating circumstances such as bad faith, fraud, or an
abuse of discretion” (citations omitted). The district court
did address this issue by stating that, “the Court disagrees
with defendant’s view of the scope of the powers and
duties of a trustee.” 3 Defendant’s reliance on discretion
is misplaced in this case where distributing money to
Plaintiff’s father was not a decision within the discretion
2
Defendant’s assertion that it was the district court’s job to give
effect to “the whole document, not just isolated parts,” is
misplaced. “[T]he district court need not investigate the evi-
dence for arguments that might possibly support [Defendant’s]
claim: it was [Defendant’s] responsibility to raise the
argument that it seeks to use now on appeal.” Libertyville Datsun
Sales, Inc. v. Nissan Motor Corp., 776 F.2d 735, 737 (7th Cir. 1985).
3
The district court found that assuming, for the purpose of
Defendant’s motion for summary judgment, bad faith was
required to hold Defendant liable, there was sufficient evidence
of bad faith for a reasonable jury to find in Plaintiff’s favor,
thereby defeating Defendant’s motion.
No. 08-1174 11
of the Trustee. As the district court explained, even if
Defendant believed the money was being used for Plain-
tiff’s benefit (so that Defendant was arguably acting in
good faith), “the trust agreement did not authorize dis-
tributions to Plaintiff’s father,” entitling Plaintiff to judg-
ment as a matter of law. Having found that Defendant
waived the issue of the exculpatory clause by failing
to raise it below, it is unnecessary to discuss
Plaintiff’s other arguments regarding the insignificance of
this clause.
C. Adequate Records
Defendant contends he maintained adequate records
of the Trust activity. Defendant’s main arguments on
appeal are that (1) monthly brokerage statements from
the sole brokerage account used by the Trust log every
transfer in and out of the Trust account; and (2) Plain-
tiff’s father had access to these records on an ongoing
basis and Plaintiff now has copies of all of the monthly
statements.4 Plaintiff contents that the brokerage state
4
Defendant claims that Plaintiff’s action for an accounting,
which was filed as Count I of Plaintiff’s original complaint, was
“essentially abdicated” by Plaintiff and that “no relief was
granted” on that count because Plaintiff has records of all
transfers into and out of the Trust. In fact, Plaintiff agreed to
dismiss his action for an accounting because it became clear that
there simply are no more records to be had. The action was
dismissed for impossibility, not because the records were
(continued...)
12 No. 08-1174
ments are insufficient records because they do not
indicate the purposes of the distributions as required by
Illinois law.
The Illinois Trusts and Trustees Act establishes that,
“[e]very trustee at least annually shall furnish to the
beneficiaries . . . a current account showing the receipts,
disbursements and inventory of the trust estate.” 760 ILCS
5/11(a). In Illinois, a beneficiary is entitled “to learn from
his trustee ‘what property came into his hands, what has
passed out, and what remains therein, including all
receipts and disbursements in cash, and the sources
from which they came, to whom paid and for what pur-
pose paid.’ ” McCormick v. McCormick, 455 N.E.2d 103, 109
(Ill. App. Ct. 1983) (citing Wylie v. Bushnell, 115 N.E. 618,
622 (Ill. 1917)). Failing to maintain adequate records is a
significant issue, not only because it constitutes an inde-
pendent cause of action, but also because “[w]here there
has been a negligent failure to keep trust accounts, all
presumptions will be against the trustee upon a settle-
ment; obscurities and doubts being resolved adversely
to him.” First Nat’l Bank & Trust Co. of Racine v. Vill. of
Skokie, 190 F.2d 791, 796 (7th Cir. 1951) (citing Crimp v.
First Union Trust & Sav. Bank, 185 N.E. 179, 183 (Ill. 1933)).
Defendant’s argument is off target and does not
require lengthy discussion. The district court did not focus
on a lack of access to existing documents, but rather on
4
(...continued)
complete or because Plaintiff lacked a right to the informa-
tion sought.
No. 08-1174 13
the non-existence of documents to which Plaintiff was
entitled. There being no dispute as to the absence of any
record indicating the purposes for the various distribu-
tions, the district court properly found that Defendant
violated his duty under Illinois law to provide adequate
records to Plaintiff as beneficiary of the Trust.
D. Fiduciary Duty
Defendant never squarely addresses the district court’s
holding that Defendant breached his fiduciary duties.
Rather, Defendant simply contends that the district court
found a breach of fiduciary duty because it found
Defendant failed to keep adequate records. However, as
is clear from the district court’s opinion, Defendant’s
abdication of his duties as Trustee goes beyond his
failure to keep adequate records. “Trustees have the
obligation to carry out the trust according to its terms, to
use care and diligence in protecting and investing trust
property and to use perfect good faith.” McCormick, 455
N.E.2d at 110 (citation omitted). Defendant made no
serious attempt to ensure that the Trust was carried out
according to its terms. Far from receiving or main-
taining any documentation, Defendant never asked Plain-
tiff’s father for receipts indicating how the funds were
being used. As the district court noted, “it is undisputed
that Defendant did not know with any specificity what
Plaintiff’s father was doing with the Trust’s money” and,
“[e]ven accepting Defendant’s version of events, it
appears that his efforts to ensure that the funds were
being used for Plaintiff’s benefit were limited to [in his
14 No. 08-1174
own words] ‘verbal conversations that he had with his
brother about the purpose of various distributions.’ ” It
is particularly telling that Defendant disbursed over
$300,000 to Plaintiff’s father through a series of distribu-
tions in one six-month period when Plaintiff was
seventeen years old. Beyond lacking any documentation
of how this money was actually used, Defendant has
no evidence, even his own testimony, specifically identify-
ing the intended purposes of these distributions.
“The law requires that a trustee must act in good faith in
the management of all matters relating to the trust, and
employ such vigilance, sagacity and diligence as prudent
men of intelligence ordinarily employ in their own affairs.”
Suffolk v. Leiter, 261 Ill. App. 82 (1931). By having, in his
own words, “no idea what they were doing with the
money,” Defendant was not appropriately vigilant; by
not asking for any verification that the money was being
spent in an appropriate manner, Defendant breached
his obligation to be diligent. It is hard to imagine Defen-
dant would have been so relaxed and disinterested were
his own money involved. Indeed, now that his own
money is involved, Defendant is interested enough to
appeal his case to this Court. Defendant’s demonstrated
lack of concern that the Trust’s assets solely benefitted
Plaintiff, and therefore his lack of concern that the
Trust’s purpose was fulfilled, violated his fiduciary duties.
No. 08-1174 15
III. CONCLUSION
For the reasons set forth above, we A FFIRM the district
court’s grant of summary judgment.
10-29-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002351/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 8, 2008
Decided October 21, 2008
Before
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-1917
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Northern District of Illinois, Eastern
Division.
v.
No. 06 CR 669-7
ANTWAN RAMSEY,
Defendant-Appellant. David H. Coar,
Judge.
ORDER
Antwan Ramsey pleaded guilty to distributing in excess of five grams of crack, 21 U.S.C.
§ 841(a)(1), and was sentenced to 92 months’ imprisonment to be followed by five years
supervised release. Ramsey appeals, but his appointed counsel moves to withdraw because he
cannot identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738,
744 (1967). Ramsey responded to counsel’s request to withdraw, see Cir. R. 51(b), and so we
confine our review to the issues outlined in counsel's facially adequate brief and Ramsey's
response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
In his Anders submission, counsel first examines whether the district court properly
calculated the sentence under the guidelines. He considers an argument pressed by Ramsey--
namely, that an amendment to the guidelines restated the rules for determining when multiple
crimes are treated as one for criminal history purposes. The amendment states that two prior
convictions are counted as one if the resulting “sentences were imposed on the same day.”
No. 08‐1917 Page 2
U.S.S.G. § 4A1.2(a)(2)(2007); U.S.S.G., Supp. to App. C, Amendment 709 (2007). Ramsey had
been sentenced on January 6, 2006 for three different felonies occurring at different times: felon
in possession of a firearm (December 2003); driving while license suspended or revoked (March
2005); and possession of cocaine (November 2005). However, the amendment did not change
§ 4A1.2(a)(2)’s directive that offenses separated by an “intervening arrest” are always counted
separately. § 4A1.2(a)(2)(2007); § 4A1.2(a)(2) cmt. n.3 (2006); see United States v. Ellis, 525
F.3d 960, 965 n.1 (10th Cir. 2008). The court therefore appropriately counted his sentences
separately for the reasons it gave at sentencing, and any potential argument to the contrary would
be frivolous.
Ramsey further challenges his sentence by noting that the criminal-history category
anticipated in his plea agreement (Category V) differed from that recommended by the probation
officer and ultimately adopted by the court (Category VI). According to the presentence
investigation report, additional criminal history points were warranted to account for Ramsey’s
commission of the current offense while on parole. Under the plea agreement, Ramsey waived
all appellate rights except for the right to appeal the validity of the plea or sentence. Plea
Agreement at ¶ 18(b). The plea agreement reflected Ramsey’s acknowledgment that the
guidelines calculations set forth in it were preliminary and non-binding. Id. at ¶ 9(e). Any
argument based on the prospect of a different sentence would be frivolous.
Counsel and Ramsey next address potential arguments regarding the reasonableness of
Ramsey’s sentence. Ramsey argues that recent changes to the guidelines’ drug quantity table do
little to alleviate the wide disparity between crack and powder cocaine sentences. U.S.S.G. §
2D1.1(c)(6) (revised by Amendment 706). The district court acknowledged its discretion to
account for the remaining differential in sentencing, see Kimbrough v. United States, 128 S. Ct.
558, 576 (2007), and pointed out that Ramsey got the benefit of the guidelines that reduced the
penalties for crack by two offense levels. The court declined to depart below the recommended
guidelines sentence, because it lacked confidence that a lower sentence would deter Ramsey
from continuing criminal activity.
Counsel also considers whether the court properly evaluated the sentence under the
factors listed in 18 U.S.C. § 3553(a). Because Ramsey’s sentence is within the guideline range,
we presume it to be reasonable. Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United
States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007). At sentencing, the district court did
evaluate the § 3553 factors that were called to its attention. See Gall v. United States, 128 S. Ct.
586, 596-97 (2007); United States v. Tockes, 530 F.3d 628, 632 (7th Cir. 2008). For example,
the court specifically explained the disparity between Ramsey’s sentence and that of his co-
defendants, see § 3553(a)(6), attributing the difference to cooperation with police and different
criminal histories. The court also considered but rejected Ramsey’s argument that the guidelines
sentence overstated his criminal history. See § 3553(a)(1). The court found that the guidelines
calculation fairly excluded a large number of Ramsey’s previous convictions and may have in
fact understated his criminal history. Those excluded convictions were either outside the
applicable time frame or didn’t meet length or offense criteria of U.S.S.G. § 4A1.2(c). The court
also recommended that the Bureau of Prisons assign Ramsey to a facility with a comprehensive
No. 08‐1917 Page 3
substance abuse treatment program. See § 3553(a)(2)(D). Any potential argument that the court
failed to give a meaningful review would lack merit, as the court fully addressed Ramsey’s
arguments at sentencing.
Ramsey also argues that he lacked access to a library or legal advisors during the course
of his incarceration. We note that there is no constitutional right of access to a law library when
a defendant is offered the assistance of counsel. United States v. Byrd, 208 F.3d 592, 593 (7th
Cir. 2000). To the extent that Ramsey’s response charges his counsel with ineffective assistance,
this claim is better pursued in a collateral proceeding. See Massaro v. United States, 538 U.S.
500, 504-05 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005).
We therefore GRANT counsel's motion to withdraw and DISMISS Ramsey's appeal. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001789/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3606
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GEORGE CAMPBELL,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 751—Joan B. Gottschall, Judge.
____________
ARGUED FEBRUARY 12, 2008—DECIDED JULY 15, 2008
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and
ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. George Campbell was charged
with one count of possessing with the intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1); and with
four counts of using a telephone in the commission of a
felony drug offense, in violation of 21 U.S.C. § 843(b). A
jury convicted Mr. Campbell of all five counts. The dis-
trict court sentenced him to concurrent prison terms of
48 and 120 months, followed by eight years of super-
vised release.
2 No. 06-3606
For the reasons set forth in this opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A.
In early 2004, Raul Montenegro, a known drug dealer,
had several telephone conversations with Mr. Campbell
about the possibility of Mr. Campbell’s purchasing co-
caine from him. On July 7, 2004, Montenegro called Mr.
Campbell1 and stated: “Uh, my friend call me. Probably
they they’re gonna meet tomorrow for, the, the remem-
ber I told you? Probably the one, they want tickets for
the, the Big Game.” Appellee’s App. at 2. Mr. Campbell
responded, “Yeah, one ticket or two tickets?” Montenegro
said, “Probably one,” and explained, “He wanna, he
wanna make sure how it, how it is, okay?” Id. Mr. Camp-
bell responded, “Gotcha,” and Montenegro told him
that he would call him the next day. Id.
On July 8, 2004, after having numerous conversations
with Miguel Diaz, his drug supplier, Montenegro called
Mr. Campbell and said, “Yeah. Uh, according to every-
thing, I’m going to pick up my lady. You know, my
girlfriend, take it with me.” Id. at 28. Montenegro and
1
The Government obtained court authorization to intercept
many of the telephone conversations between Mr. Campbell
and Montenegro and between Montenegro and Miguel Diaz,
Montenegro’s drug supplier. These conversations were re-
corded, and both the recordings and transcripts of the calls
were admitted into evidence.
No. 06-3606 3
Mr. Campbell then made arrangements to meet at
Mr. Campbell’s residence. In the interim, Montenegro
met with Diaz and picked up one kilogram of cocaine.
Later that night, Montenegro called Mr. Campbell and
told him that he was about to arrive at Mr. Campbell’s
residence. Mr. Campbell told Montenegro that he would
be home shortly and that he would tell someone at his
residence to let Montenegro in.
At trial, Montenegro testified that he entered Mr. Camp-
bell’s residence with the one kilogram of cocaine. Accord-
ing to Montenegro, when Mr. Campbell arrived at the
residence he explained that there was an unfamiliar car
in a nearby parking lot. He asked Montenegro if
Montenegro had arrived at the residence alone.
Montenegro assured Mr. Campbell that he had done so.
Mr. Campbell pointed to the unfamiliar car from the
window of the residence, but Montenegro could not
identify the vehicle. Still unsatisfied, Mr. Campbell made
Montenegro accompany him outside in an effort to have
Montenegro identify the unfamiliar vehicle. Montenegro
nevertheless could not identify the car.
Prior to leaving Mr. Campbell’s residence to inspect
the car, Montenegro left the kilogram of cocaine in
Mr. Campbell’s house, either on a table or on his couch.
At trial, Montenegro testified:
AUSA: At some point while you were in
the apartment with George Camp-
bell, did you give him the kilo-
gram of cocaine?
MONTENEGRO: Well, actually I left I think on the
table or in the couch, something
like that. I don’t remember where.
4 No. 06-3606
I put it there because we went out-
side. I wasn’t—I wasn’t—not carry-
ing that thing with me outside the
house because we were thinking
like maybe there was police or
something else, so—or rob or
something. So I left it there.
***
AUSA: [W]as George Campbell there at
the table when you took the co-
caine out?
MONTENEGRO: When I took it? No, I didn’t took
it, actually. But he was there but he
was—actually we were talking
about who was in that car, you
know, who could that be. So we
didn’t pay attention to the—just
got out, tried to identify the car.
AUSA: So at any point did you give
George Campbell the cocaine while
you were in the house?
MONTENEGRO: You mean hand him?
AUSA: Yes.
MONTENEGRO: No.
AUSA: Did you give it to him?
MONTENEGRO: No, we just put it there. I mean,
I put it there, actually. He was not
worried about who was in. . . .
R.219 at 142-43.
No. 06-3606 5
The Government then impeached Montenegro with
statements that he had made at his change of plea hearing:
AUSA: [During the change of plea hear-
ing], the Court asked you . . . “then
you actually went inside of Mr.
Campbell’s residence and deliv-
ered the kilo of cocaine to Mr.
Campbell? And then the two of
you left Mr. Campbell’s residence?
Is that what happened?” And
you answered, “yes”?
MONTENEGRO: Yes, correct.
AUSA: But your testimony today is, you
didn’t give the kilogram—
Id. at 145. Mr. Campbell’s counsel objected on the ground
that Montenegro’s testimony from the change of plea
hearing did not contradict his trial testimony. The dis-
trict court overruled the objection, and the testimony
continued:
AUSA: When you pled guilty to these
charges and you took an oath be-
fore this Judge, you told her under
oath that you went inside of Mr.
Campbell’s residence, and you
delivered the kilo of cocaine to
Mr. Campbell.
MONTENEGRO: Yes.
AUSA: And you said yes.
MONTENEGRO: Yes.
Id. at 145-46.
6 No. 06-3606
After Montenegro and Mr. Campbell went outside to
look at the car, Mr. Campbell left the area. Drug Enforce-
ment Administration (“DEA”) Special Agent Ryan
Rapaszky, who had conducted surveillance at Mr. Camp-
bell’s residence throughout the day, confirmed that
Montenegro and Mr. Campbell looked closely at the two
DEA surveillance vehicles parked in the nearby lot, that
Mr. Campbell got into his car for approximately ten
minutes and that Mr. Campbell then left the parking lot at
approximately 10:40 p.m.
At 10:45 p.m., Mr. Campbell called Montenegro, explain-
ing: “Yea, I’m being followed right now. So I don’t know
what the hell is going on here man. . . . So you might as
well leave.” Appellee’s App. at 46. Montenegro responded,
“Should I leave?” and Mr. Campbell responded, “you
might . . . Yeah, you better. I just said I’m being followed.”
Id. Mr. Campbell did not instruct Montenegro to take the
cocaine with him, and Montenegro testified that he left the
cocaine on Mr. Campbell’s table.
Later that same night and the following day, July 9, 2004,
Montenegro and Diaz exchanged several calls. In these
phone calls, Diaz, using coded language, inquired about
the cocaine. Montenegro could not give Diaz an update
because he had not yet spoken to Mr. Campbell.
Montenegro had several short telephone conversations
with Mr. Campbell, but Mr. Campbell did not give
Montenegro an update about the status of the deal. At one
point, Montenegro left Mr. Campbell a message: “You
there? Call me every five minutes. They want a simple
question, you still give me a simple answer. Yes, or not.
That’s all I want to know. Okay, bye.” Id. at 62.
At 1:43 p.m., Mr. Campbell called off the drug deal. Mr.
Campbell spoke to Montenegro and stated, “Just, I’m
No. 06-3606 7
saying no, period.” Id. at 66. Montenegro then explained,
“Alright, I have to pick it up now. Okay?” Id. Mr. Campbell
responded, “Alright, I’m gonna hit you back in half an
hour,” to which Montenegro replied, “Okay.” Id.
On the following day, DEA Task Force Officer George
Wodka conducted surveillance at Mr. Campbell’s resi-
dence, and he discovered in a dumpster near Mr. Camp-
bell’s residence a cereal box wrapped in a clear plastic bag.
The dumpster was approximately 50 feet from the resi-
dence, and there was a clear, unobstructed view of the area
from the second floor windows of Mr. Campbell’s resi-
dence. Officer Wodka testified that there was a brick-
shaped object wrapped in duct tape—approximately 978.5
grams of cocaine—inside the cereal box.
The jury also heard the testimony of Task Force Officer
Robert Coleman. Officer Coleman testified as to his exten-
sive experience in investigating narcotics offenses, includ-
ing his knowledge of the use of coded language by narcot-
ics organizations, the means by which narcotics are
bought and sold, the wholesale and retail pricing of
powder cocaine and the quantities of cocaine that are
considered distribution quantities.2 Officer Coleman
explained to the jury that when narcotics are “fronted” to
a customer, it means that the narcotics are provided on
credit and are paid for after the customer resells the
narcotics. The wholesale price of a kilogram of cocaine in
the Chicago area, explained Officer Coleman, was between
$17,000 and $25,000. Officer Coleman also testified that
one kilogram of cocaine was a distribution quantity.
2
Officer Coleman was qualified as an expert without any
objection from Mr. Campbell.
8 No. 06-3606
Officer Coleman further explained to the jury that
Montenegro’s use of the term “tickets” in conversation
with Mr. Campbell meant “kilograms” and that when Mr.
Campbell asked Montenegro “one ticket or two,” he was
asking whether Montenegro had one or two kilograms.
R.219 at 86. With regard to another conversation between
Mr. Campbell and Montenegro, Officer Coleman opined
that Montenegro’s use of the phrase “I’m going to pick up
my lady . . . [y]ou know my girlfriend” meant that
Montenegro was going to go pick up the cocaine, and
that Montenegro’s reference to picking up the “tickets”
meant that he wanted to pick up money from Mr. Camp-
bell. Id. at 92.
B.
At the close of the Government’s case, Mr. Campbell
moved for a judgment of acquittal under Federal Rule of
Criminal Procedure 29. The district court reserved the
motion. A jury convicted Mr. Campbell of all five counts
asserted in the superseding indictment: namely, one count
of possessing with the intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1), and four counts of using
and causing to be used a telephone in the commission of
a felony drug offense, in violation of 21 U.S.C. § 843(b).
Mr. Campbell filed his renewed motion for judgment of
acquittal and a motion for a new trial. R.105, 106. In
support of these motions, Mr. Campbell challenged the
sufficiency of the Government’s evidence with respect to
his possession and intent to distribute the cocaine. Essen-
tially, Mr. Campbell asserted that he did not have the
intent to distribute at the time that he possessed the
cocaine. The district court denied the motions. It held that
No. 06-3606 9
the Government had introduced sufficient evidence to
allow a reasonable jury to find that Mr. Campbell pos-
sessed and intended to distribute the cocaine that
Montenegro had left at his residence. R.136.
After the district court’s denial of these post-trial mo-
tions, Mr. Campbell’s counsel, with the district court’s
leave, withdrew. Mr. Campbell obtained new counsel, who
remains his counsel on appeal. Mr. Campbell’s new
counsel made an oral motion for permission to file a
motion for reconsideration; the district court granted the
motion, although it expressed skepticism about its ability
to consider new issues raised by Mr. Campbell’s new
counsel.
Counsel then filed a motion for reconsideration, which
the district court denied. The court ruled that, although
the motion for reconsideration challenged the sufficiency
of the Government’s evidence, it did so on grounds
different from those presented in Mr. Campbell’s original
motions. Specifically, the district court noted that Mr.
Campbell’s original motions had not challenged the
sufficiency of the evidence with respect to Montenegro’s
delivery of cocaine to Mr. Campbell or Mr. Campbell’s
constructive possession of the cocaine. R.162 at 2. The court
accordingly determined that these new arguments were
untimely, and it denied reconsideration of arguments that
the court had addressed in its denial of Mr. Campbell’s
previous post-trial motions. Id.
The district court sentenced Mr. Campbell to concurrent
sentences of 120 months’ imprisonment for the violation
of 21 U.S.C. § 841(a)(1) and 48 months’ imprisonment
for the violation of 21 U.S.C. § 843(b).
10 No. 06-3606
II
DISCUSSION
A.
Mr. Campbell challenges the sufficiency of the Govern-
ment’s evidence solely with respect to whether he pos-
sessed the cocaine that Montenegro left at his residence.3 A
3
Mr. Campbell was charged with possession with intent to
distribute, 21 U.S.C. § 841(a)(1), and, therefore, in addition to
proving that he possessed the cocaine, the Government was
required to prove that Mr. Campbell intended to distribute it.
See United States v. Orozco-Vasquez, 469 F.3d 1101, 1106 (7th Cir.
2006). There is an argument that the Government’s proof
with respect to intent was lacking because it (arguably) did not
establish that Mr. Campbell intended to distribute the cocaine
at the same time that he possessed it. Mr. Campbell, however,
does not make the argument before us. Mr. Campbell’s briefs
contend solely that the Government’s proof with respect to
possession or constructive possession (that is, whether he
intended to exercise dominion or control over the contraband).
There is one, lone sentence in Mr. Campbell’s main brief that
asserts: “The evidence was insufficient to prove defendant
possessed about one kilogram of cocaine with intent to dis-
tribute.” Appellant’s Br. at 11. The sentences that follow,
however, make clear that Mr. Campbell is challenging just the
possession aspect of the offense, rather than the intent to
distribute element. Id. at 12. Mr. Campbell’s reply brief also
does not provide any argumentation as to the intent to distrib-
ute element.
At oral argument, counsel’s presentation focused solely on the
possession element of the Government’s case. Indeed, one of
the judges on the panel commented that Mr. Campbell
should be arguing that the Government’s evidence was legally
(continued...)
No. 06-3606 11
3
(...continued)
insufficient to prove that he intended to distribute the cocaine.
In response, counsel stated that he believed that the argument
regarding intent to distribute had not been preserved by
Mr. Campbell’s previous counsel. In other words, counsel
believed that Mr. Campbell’s previous counsel had forfeited
this argument.
Our review of the record indicates that counsel’s recollection
was not accurate. Mr. Campbell’s former counsel in fact chal-
lenged the sufficiency of the evidence as to possession and intent
to distribute as well as the argument that possession and intent
were not simultaneous. R.105 at 2-4 (memorandum in sup-
port of Mr. Campbell’s motion for judgment of acquittal); R.112
at 2-5 (reply memorandum). These issues, therefore, were
preserved for appellate review. Moreover, the district court
clearly treated former counsel’s submissions as raising the
issue of whether Mr. Campbell possessed the drugs at the
same time that he had the intent to distribute them. R.136 at 2-4.
After reviewing Mr. Campbell’s submissions in this court,
however, we must conclude that he has not raised any argument
on appeal regarding the sufficiency of the Government’s
evidence as to intent to distribute, and therefore that issue is
not before us. United States v. Feinberg, 89 F.3d 333, 340-41 (7th
Cir. 1996); see also Lear v. Cowan, 220 F.3d 825, 828-29 (7th Cir.
2000) (noting that issues raised for the first time by the judges
at oral argument are “waived”).
In any event, the Government introduced sufficient evidence
for a reasonable jury to conclude that Mr. Campbell intended to
distribute the cocaine and that his intent to distribute coincided
with his possession of the narcotics. The Government’s evidence
established that Mr. Campbell, after discussing the details with
Montenegro, agreed to participate in a drug fronting scheme; the
cocaine would be provided on credit to Mr. Campbell, after
(continued...)
12 No. 06-3606
defendant making an insufficiency of the evidence argu-
ment faces a difficult task. See United States v. Pulido,
69 F.3d 192, 205 (7th Cir. 1995) (characterizing the burden
as a “nearly insurmountable hurdle”). In reviewing a
challenge to the sufficiency of the evidence, we do not
weigh the evidence, United States v. Bowman, 353 F.3d 546,
552 (7th Cir. 2003), make credibility determinations,
United States v. Woolfolk, 197 F.3d 900, 904 (7th Cir. 1999),
or resolve testimonial inconsistencies, see United States v.
Hodges, 315 F.3d 794, 799 (7th Cir. 2003). Taking the evi-
dence in the light most favorable to the Government, we
“will overturn a conviction based on insufficient evid-
ence only if the record is devoid of evidence from which a
reasonable jury could find guilt beyond a reasonable
doubt.” United States v. Stevens, 453 F.3d 963, 965 (7th
Cir. 2003) (internal quotation marks and citations omitted).
B.
The three elements required for a conviction under 21
U.S.C. § 841(a)(1) are: (1) knowing or intentional possession
3
(...continued)
which Mr. Campbell would pay for the cocaine once he resold
it. Mr. Campbell directed Montenegro to deliver a distribution
quantity of cocaine to his residence, and he made arrangements
for someone to admit Montenegro if he arrived at the residence
before Mr. Campbell. Montenegro delivered the cocaine to Mr.
Campbell, and the cocaine remained in Mr. Campbell’s control
until the following day. Regardless of whether Mr. Campbell
subsequently decided to return the cocaine, the Government’s
evidence was sufficient to establish that, when Montenegro
made the delivery to his residence, Mr. Campbell simulta-
neously possessed and intended to distribute the cocaine.
No. 06-3606 13
of cocaine; (2) possession of cocaine with intent to distrib-
ute it; and (3) knowledge that the material is a con-
trolled substance. United States v. Banks, 405 F.3d 559, 569
(7th Cir. 2005). A defendant violates 21 U.S.C. § 843(b) if he
“knowingly and intentionally use[s] a communications
facility, e.g., a telephone, to facilitate the commission of a
narcotics offense.” United States v. Alvarez, 860 F.2d 801, 813
(7th Cir. 1988) (internal quotation marks and citation
omitted). Proof of an underlying narcotics offense is an
element of a section 843(b) conviction. Id.; see also United
States v. Mueller, 112 F.3d 277, 281-82 (7th Cir. 1997) (“[A]
defendant cannot be convicted of using a telephone to
facilitate a drug offense unless the defendant also aids or
abets, or attempts to commit, the drug offense itself.”).
Therefore, the validity of Mr. Campbell’s conviction on
these counts depends on the sufficiency of the Govern-
ment’s evidence with respect to the section 841(a)(1)
offense. As to that offense, Mr. Campbell challenges
the sufficiency of the Government’s evidence only with
respect to whether he knowingly or intentionally possessed
cocaine, and therefore we shall confine our discussion to
that element of the Government’s case.
The Government may satisfy this element by proving
either actual possession or constructive possession. United
States v. Starks, 309 F.3d 1017, 1022 (7th Cir. 2002). Con-
structive possession may be proven using either direct
or circumstantial evidence. See United States v. Parra,
402 F.3d 752, 761 (7th Cir. 2005). It requires proof that
the defendant had the “power and intent to exercise
control” over the illegal drugs. United States v. Moses, 513
F.3d 727, 733 (7th Cir. 2008) (internal quotation marks and
citations omitted). A defendant may exercise “ownership,
dominion, authority, or control” over the drugs himself
14 No. 06-3606
or through intermediaries. Starks, 309 F.3d at 1022; see also
Moses, 513 F.3d at 733. Accordingly, “an accused . . . has
control of narcotics when he has the authority—not legal
authority, but the recognized authority in his criminal
milieu—to possess and determine the disposition of them.”
United States v. Windom, 19 F.3d 1190, 1200 (7th Cir. 1994)
(internal quotation marks and citation omitted). In previ-
ous cases, for example, we have framed our inquiry by
asking whether the defendant “likely had some appreciable
ability to guide the destiny of the drug.” United States v.
Manzella, 791 F.2d 1263, 1267 (7th Cir. 1986) (internal
quotation marks and citation omitted).
This court, nevertheless, has exercised vigilance in
ensuring that the doctrine of constructive possession
does not ensnare innocent bystanders, especially when
possession is not exclusive. United States v. Harris, 325 F.3d
865, 869 (7th Cir. 2003). To guard against this risk, the
Government must “establish a nexus between the accused
and the contraband.” Parra, 402 F.3d at 762. “Mere proxim-
ity to the drug, mere presence on the property where it is
located, or mere association, without more, with the per-
son who does control the drug or property on which it is
found, is insufficient to support a finding of possession.”
United States v. DiNovo, 523 F.2d 197, 201 (7th Cir. 1975)
(internal quotation marks and citation omitted).
To convince us that the Government’s evidence of
possession is legally insufficient to support the jury’s
verdict, Mr. Campbell asserts that, because Montenegro’s
testimony established that Mr. Campbell had a deep
suspicion that the police were surveilling his residence, “it
is logical to conclude that [Mr. Campbell] at the time” had
no intention to exercise dominion or control over the
cocaine. Reply Br. at 5. Mr. Campbell also focuses on
No. 06-3606 15
the absence of evidence indicating that Montenegro
physically delivered the cocaine to him and on the absence
of fingerprints on the packaging of the cocaine that was
found in the dumpster.
We believe that the Government introduced sufficient
evidence for a reasonable jury to conclude beyond a
reasonable doubt that Mr. Campbell possessed the co-
caine. The jury listened to, and read transcripts of, the
numerous recorded phone calls between Mr. Campbell and
Montenegro and between Montenegro and Diaz,
Montenegro’s drug supplier. The Government intro-
duced the testimony of Officer Robert Coleman, who
testified that, in those calls, Mr. Campbell, Montenegro and
Diaz were using coded language to negotiate a drug
deal—or, more specifically, a drug fronting scheme. In a
fronting scheme, Officer Coleman explained to the jury,
narcotics are provided on credit to a customer, who
then pays for the narcotics once he resells them.
On July 7, 2004, for example, Montenegro called Mr.
Campbell and told him that his friend had “one ticket” to
the “Big Game,” meaning one kilogram of cocaine. R.219
at 86. The next day, Montenegro called Mr. Campbell to
tell him that he was going to pick up his “lady,” “you
know, my girlfriend, take it with me,” again referring to
the cocaine. R.219 at 92. Shortly thereafter, Montenegro
called Mr. Campbell to inform him that he had picked up
his “wife,” that he was “close to” Mr. Campbell’s resi-
dence, R.219 at 93, and that he had to “pick up the kid, the
tickets for Saturday’s games,” meaning that he wanted to
16 No. 06-3606
pick up money from Mr. Campbell.4 In a subsequent
call, Mr. Campbell told Montenegro to call him when he
arrived at Mr. Campbell’s residence, and Mr. Campbell
explained that he would have someone let Montenegro
inside.
The jury also heard the testimony of Montenegro.
Montenegro admitted that, while in Mr. Campbell’s
presence, he had left the cocaine on Mr. Campbell’s table or
on his couch.5 He also testified about Mr. Campbell’s
behavior regarding the presence of an unfamiliar vehicle
parked nearby. Mr. Campbell repeatedly asked
Montenegro whether he had been followed. Indeed, Mr.
Campbell went outside with Montenegro in an effort to
determine whether Montenegro could recognize the
4
Counsel for the Government asked Officer Coleman: “[I]s
there anything about that particular conversation or that
particular context that causes you to have the opinion that
tickets means money here as opposed to kilograms of cocaine?”
R.219 at 93. Officer Coleman responded: “Well, the context of the
conversation, he’s referring to ‘I got my wife with me,[’]
meaning he’s got a kilo with him, and [’]is going to pick up
the kid, the tickets for Saturday’s game,’ meaning money.” Id.
5
Mr. Campbell points out that Montenegro testified that he
did not physically hand the drugs over to Mr. Campbell.
Montenegro’s testimony, along with the telephonic negotiations
about the drug delivery, are fatal to such an assertion. The
Government, moreover, introduced Montenegro’s prior state-
ment that he had delivered the cocaine to Mr. Campbell when
he arrived at Mr. Campbell’s residence. Mr. Campbell objected
to the introduction of this latter testimony on the ground that
it was not impeaching of Montenegro’s testimony, but the
district court overruled the objection; Mr. Campbell does not
challenge this evidentiary ruling on appeal.
No. 06-3606 17
vehicle. After Montenegro stated that he could not iden-
tify the vehicle, Mr. Campbell went inside his car, called
Montenegro and told him to leave because he believed that
they were being followed. Despite knowing that
Montenegro, at his direction, had just brought a kilogram
of cocaine to his residence, at no point did Mr. Campbell
tell Montenegro to take the cocaine with him; rather,
Mr. Campbell permitted the cocaine to remain on the
premises for some period of time. The following day,
Officer Wodka found approximately one kilogram of
cocaine wrapped inside a cereal box in a nearby dumpster.
Officer Wodka explained to the jury that the dumpster
could be seen without obstruction from the second floor
windows of Mr. Campbell’s residence.
Given the evidence of Mr. Campbell’s prior negotia-
tions with Montenegro, the jury was entitled to find that
Mr. Campbell was orchestrating the purchase of a kilo-
gram of cocaine from Montenegro and that Mr. Campbell
had directed Montenegro to deliver the cocaine to his
residence once Montenegro obtained the cocaine from
Diaz. Additionally, the jury reasonably could have con-
cluded that Mr. Campbell intentionally possessed the
cocaine after Montenegro, at Mr. Campbell’s instruction,
left Mr. Campbell’s residence without any instructions to
take the cocaine with him. See Windom, 19 F.3d at 1200. The
numerous phone calls between Montenegro and Mr.
Campbell regarding the fronting scheme and Mr. Camp-
bell’s apprehension about the unidentified vehicle parked
nearby dispel the notion that Mr. Campbell was a mere
innocent bystander who was uninvolved in Montenegro’s
drug dealings. See Harris, 325 F.3d at 869.
Mr. Campbell claims that “it is logical to conclude” that,
because Mr. Campbell had suspicions that the police
18 No. 06-3606
were surveilling his residence, he had no intention to
exercise dominion or control over the cocaine. Reply Br. at
5. That conclusion, however, is not the only logical one;
it is one that the jury was entitled to reject. See Harris,
325 F.3d at 865 (discussing arguments that ask “the trier
of fact to ascribe a particular significance to the adjudica-
tive facts of record” but “do not require that the trier of
fact accept such an explanation”). Consequently, we
hold that the jury was entitled to find that Montenegro
and Diaz had “fronted” the kilogram of cocaine to Mr.
Campbell and that, after Montenegro delivered the co-
caine to his residence, Mr. Campbell had taken possession
of the illegal drugs.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
USCA-02-C-0072—7-15-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002513/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 22, 2008
Decided December 23, 2008
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐2181
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 91‐CR‐290
ERNEST F. CLARK,
Defendant‐Appellant. Lynn Adelman,
Judge.
O R D E R
Ernest Clark was convicted in 1992 of armed bank robbery, see 18 U.S.C. § 2113, use
of a firearm while committing a crime of violence, see 18 U.S.C. § 924(c), and being a felon in
possession of a firearm, see 18 U.S.C. § 922(g)(1). Fourteen years later Clark was released
from custody, but he did not comply with the terms of his supervised release. After Clark
tested positive for cocaine on four separate occasions and missed various counseling
appointments, his probation officer petitioned the district court to revoke his release. At his
revocation hearing Clark admitted nearly all of the allegations, including that he had tested
positive for cocaine on at least three occasions in the previous year. The court found that it
was four, which made revocation mandatory under 18 U.S.C. § 3583(g)(4). In light of
No. 08‐2181 Page 2
Clark’s intractability and the potential danger he posed to the public, the court imposed
another six months’ imprisonment to be followed by a term of twelve months’ supervised
release.
Clark appeals. But his attorney cannot find a nonfrivolous basis for the appeal and
has asked to withdraw under Anders v. California, 386 U.S. 738 (1967). We invited Clark’s
comment on the pending motion; he did not respond. See Cir. R. 51(b). That leaves us with
only the potential issues raised in counsel’s supporting brief. See United States v. Schuh, 289
F.3d 968, 973‐74 (7th Cir. 2002).
Counsel first examines whether Clark could challenge the district court’s authority to
impose an additional term of supervised release on top of reimprisonment. But Johnson v.
United States, 529 U.S. 694, 712‐13 (2000), permits a district court to do just that, even if the
sentence is governed, as Clark’s is, by an earlier version of 18 U.S.C. § 3583, which does not
explicitly provide the authority. See also United States v. Russell, 340 F.3d 450, 453‐54 (7th
Cir. 2003). Still, under Johnson, the combined term of reimprisonment and additional
supervised release cannot exceed the original term of supervised release. See Johnson, 529
U.S. at 712‐13; Russell, 340 F.3d at 454. That is not a problem here. Clark’s original term of
supervised release was five years, so the eighteen months of incarceration and supervision
he now faces pass muster.
Counsel briefly examines the grounds for revocation as well but acknowledges that
they are adequate. There can be no debate here. Testing positive for illegal controlled
substances is reason for revocation. See 18 U.S.C. § 3583(g)(4); United States v. Pitre, 504 F.3d
657, 659‐65 (7th Cir. 2007).
Counsel next probes whether Clark could argue that his term of reimprisonment is
unreasonable. Our review of additional imprisonment imposed on revocation of
supervised release examines whether the term is plainly unreasonable, a standard that we
have described as very narrow. United States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007). A
district court need only consider the policy statements found in Chapter 7 of the guidelines
and the sentencing factors set forth in 18 U.S.C. § 3553(a) before fashioning an appropriate
term of reimprisonment. See 18 U.S.C. § 3583(e); United States v. Neal, 512 F.3d 427, 438 (7th
Cir. 2008). In Clark’s case the court acknowledged that the revocation table proposed an
reimprisonment range of seven to thirteen months given Clark’s Grade C violations and his
criminal history category of V. See U.S.S.G. § 7B1.4. The court decided, however, that a
lesser term would preserve public safety and provide “some sort of hope for maybe getting
[him] more on to the right track.” The court noted as well that it sought to avoid an
excessively punitive sentence. That is appropriate consideration.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002533/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1319
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER A. B UDD,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:07-cr-40026-JBM-JAG-1—Joe Billy McDade, Judge.
A RGUED S EPTEMBER 23, 2008—D ECIDED D ECEMBER 17, 2008
Before B AUER, C UDAHY and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. Christopher Budd was charged
in four counts with receipt, possession, and distribution
of child pornography. After the district court denied
Budd’s motion to suppress evidence found on his com-
puter and certain statements he made to the police, Budd
entered a conditional guilty plea to all four counts while
reserving his right to appeal the court’s ruling on the
motion. Budd now appeals that ruling and we affirm.
2 No. 08-1319
I. BACKGROUND
Budd left his Gateway computer with CNT Computers,
Inc. (CNT) for repairs on December 13, 2006. While diag-
nosing one of the computer’s problems, Tom Doyle, the
owner of CNT, discovered a file titled, “A Three Year Old
Being Raped.” Doyle opened the file and saw a video of
a small female child naked in a bathtub with a naked
adult male who had an erect penis. Doyle exited the
video before he saw any physical contact between the two.
On December 14, 2006, Doyle called the Moline Police
Department to report what he had seen. Officer Mark
Kinsey came to CNT, spoke with Doyle, and, with Doyle’s
permission, took the computer to the Moline Police De-
partment where it was logged into evidence. The case was
assigned to Detective Ted Teshak for further investigation.
Detective Teshak began his investigation on December 15,
2006, by opening a case file and running a criminal
history and driver’s license check on Budd. Because of a
combination of a general backlog of cases, filling in for
his colleagues during the holiday season, taking days off
for the holiday season, and moving into a new police
station, no work was done on the case between
December 15, 2006 and January 11, 2007.
Amy Hillyer, a CNT employee, called Detective Teshak
on January 11, 2007 and reported that Budd had been
calling and visiting the store inquiring about his computer.
Hillyer had told Budd that the computer was not ready
No. 08-1319 3
yet.1 Detective Teshak attempted to contact Doyle over
the next two business days to confirm Doyle’s report
before moving forward with the investigation. Before
Detective Teshak could reach Doyle, Budd called the
Moline Police Department on January 15, 2007 and re-
ported the suspected theft of his computer by CNT. Budd
was transferred to Detective Teshak who told Budd that
the police department had his computer and that there
had been a complaint about possible child pornography
on the computer. Budd volunteered that the computer
contained “pretty graphic” files that he should not have.
Detective Teshak said that he needed to talk to Budd
in person and Budd agreed to come to the police station
in a few hours after he explained that he had the files on
his computer because he was a “vigilante” who searched
for online predators. After speaking with Budd on the
phone, Detective Teshak was able to reach Doyle who
confirmed the events he had related to Officer Kinsey.
Budd arrived at the police station as planned and was
escorted to an interview room. He was interviewed by
Detective Teshak in the presence of his supervisor, Ser-
geant Titus. After being told—and confirming that he
understood—that the interview was voluntary, Budd
admitted that he had been collecting child pornography
on his computer for the last two months in his efforts as
a “vigilante” and that there were about 30 files of child
1
Hillyer was not instructed to do this by anyone in the
Moline Police Department.
4 No. 08-1319
pornography on his Gateway computer.2 During the
interview, Budd denied having any child pornography
other than that on the Gateway computer and verbally
consented to a search of his apartment. The three men
drove to Budd’s apartment and, once inside, Budd signed
a consent-to-search form. Detective Teshak’s search
revealed a Seagate hard drive along with some CDs and
floppy diskettes. Budd allowed the officers to take the
items for the purpose of searching them and agreed to
accompany the officers back to the station. Upon returning
to the same interview room, Budd signed a consent-to-
search form for the hard drive, CDs, and floppy diskettes.
After being reminded that he was free to leave at any
time, Budd agreed to answer some more questions and
stated that he began downloading child pornography as
a vigilante, but that he found it both arousing and dis-
turbing at the same time.
The next day, January 16, 2007, Budd called Detective
Teshak to clarify some of the statements Budd made the
previous day. Budd volunteered that he had been
addicted to child pornography for a few years and that
there would likely be more child pornography on the
Seagate hard drive. During the phone call, Budd agreed to
come to the police station the following day for more
questioning. After being told again at the police station
that the interview was voluntary and that he did not
have to answer any questions with which he felt uncom-
2
Budd later stated that he downloaded the files over a seven-
month period.
No. 08-1319 5
fortable, Budd gave a more detailed account of his
history of downloading child pornography onto his
computer.
A search warrant was obtained on January 30, 2007 for
the Gateway computer and Seagate hard drive and an
examination of these two devices revealed at least 30
still images and at least 70 videos of child pornography.
Budd was arrested on March 12, 2007. Before trial, Budd
moved to suppress both the incriminating statements
he made to the police and the evidence found on his
computer and hard drive. The district court denied the
motion and Budd pleaded guilty, but specifically retained
his right to appeal the ruling on his motion to suppress.
II. DISCUSSION
On appeal, Budd claims that the district court erred in
denying his motion to suppress. Budd argues that his
Gateway computer was illegally seized, therefore the
exclusionary rule precludes introduction of the
images found on his computer. Budd contends that his
statements to the police and the evidence found on his
Seagate hard drive were derivative of the illegal seizure
of his computer and should have been suppressed as
fruits of the poisonous tree. He also asserts that the
district court should have suppressed his statements to
the police because they were given without proper
Miranda warnings. The government states that the
evidence was admissible because the seizure of the Gate-
way computer was reasonable and that the computer
was searched pursuant to a valid search warrant.
6 No. 08-1319
The government also contends that assuming the
seizure was illegal, the evidence at issue was obtained
independent of any illegality and was therefore admissi-
ble. Finally, the government argues that Budd’s statements
were voluntary and that Miranda warnings were not
required because Budd was not in custody when he
made the statements at issue.
A. Budd’s Statements to the Police
Budd claims that his Fourth Amendment right to be
free from unreasonable seizures was violated: (1) immedi-
ately upon Officer Kinsey taking possession of the
Gateway computer; and (2) independently due to the
length of time the Moline Police Department retained
the computer before seeking a search warrant. We
assume, without deciding, that at some point during
the 48-day period after Officer Kinsey obtained the com-
puter and before the police obtained a search warrant,
the seizure became unreasonable due primarily to the
length of the delay.
Budd argues that, but for the illegal seizure and contin-
ued detention of his computer, he would have had no
reason to call the police, would not have agreed to ques-
tioning, and would not have made any incriminating
statements to the authorities; therefore his statements
should have been suppressed as derivative of the illegal
seizure. The government argues that Budd voluntarily
made the incriminating statements and that they were not
derivative of any illegality.
No. 08-1319 7
“[T]he exclusionary rule reaches not only primary
evidence obtained as a direct result of an illegal search or
seizure, but also evidence later discovered and found to be
derivative of an illegality or ‘fruit of the poisonous tree.’ ”
Segura v. United States, 468 U.S. 796, 804 (1984) (citations
omitted). However, “[t]he [Supreme] Court has never
held that evidence is ‘fruit of the poisonous tree’ simply
because ‘it would not have come to light but for the illegal
actions of the police.’ ” Id. at 815 (quoting Wong Sun v.
United States, 371 U.S. 471, 487-88 (1963)). “Even in situa-
tions where the exclusionary rule is plainly applicable, we
have declined to adopt a ‘per se or “but for” rule’ that
would make inadmissible any evidence, whether
tangible or live-witness testimony, which somehow came
to light through a chain of causation that began
with [illegal police activity].” United States v. Ceccolini, 435
U.S. 268, 276 (1978) (citation omitted). The true question
is “whether, granting the establishment of the primary
illegality, the evidence . . . has been come at by exploita-
tion of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.” United
States v. Carsello, 578 F.2d 199, 202 (7th Cir. 1978) (quoting
Wong Sun, 371 U.S. at 488).
In this case, Budd demonstrated nothing more than
but for causation. There is no evidence that the govern-
ment exploited the illegal seizure of the computer; the
government did nothing more than place the unsearched
computer into an evidence room and leave it there. It was
Budd who called the police, volunteered that he had
“pretty graphic” files on his computer, and agreed to come
down for questioning at the police station. It was Budd
8 No. 08-1319
who called Detective Teshak the day after Budd’s first
interview to clarify some of his previous statements. Budd
chose to make this second phone call, not because of
police exploitation of the illegal seizure, but, as he told
Detective Teshak, because he felt that in order to start
the “healing” process, he needed to be truthful about the
files on his computer. The illegal seizure indirectly
prompted Budd’s first phone call to the Moline Police
Department; however, the seizure was not exploited, nor
did it compel Budd to incriminate himself. Budd’s state-
ments to the police were not derivative of the seizure.
Budd also argues that his statements should have been
suppressed because they were not preceded by proper
Miranda warnings. The government responds that since
Budd was not in custody when he made the relevant
disclosures, Miranda warnings were not required.
Miranda warnings are not required merely because
the individual questioned by law enforcement officers
is a suspect or is the focus of a criminal investigation.
The suspect must be both “in custody” and subjected
to “interrogation” before the Miranda warning[s] are
required to be administered.
A custodial interrogation occurs when there is ques-
tioning initiated by law enforcement officers after a
person has been taken into custody or otherwise
deprived of his freedom of action in any significant
way.
United States v. Barker, 467 F.3d 625, 628 (7th Cir. 2006)
(internal quotations and citations omitted). “[T]he test is
not whether the defendant was under a subjective
No. 08-1319 9
belief that his or her movements were restricted, but
whether a reasonable person in the defendant’s position
would believe that he or she was free to leave.” United
States v. Lennick, 917 F.2d 974, 977 (7th Cir. 1990) (citation
omitted).
A totality of the circumstances test is used to [make
this determination]. In considering the totality of the
circumstances, factors include (1) whether the encoun-
ter occurred in a public place; (2) whether the
suspect consented to speak with the officers;
(3) whether the officers informed the individual that
he was not under arrest and was free to leave;
(4) whether the individuals were moved to another
area; (5) whether there was a threatening presence
of several officers and a display of weapons or
physical force; (6) whether the officers deprived the
defendant of documents she needed to continue on
her way; and (7) whether the officers’ tone of voice
was such that their requests would likely be obeyed.
Barker, 467 F.3d at 628-29 (internal quotations and cita-
tions omitted).
Budd initiated his first contact with the Moline Police
Department and agreed to meet at the police station for
questioning. After Detective Teshak obtained some back-
ground information from Budd, Budd was told that the
interview was voluntary, that he could leave at any time,
and that he was not going to be arrested on that date.
With this knowledge, Budd agreed to talk with Detec-
tive Teshak. When he rode with Detective Teshak and
Sergeant Titus to his apartment, Budd rode in the front seat
10 No. 08-1319
of an unmarked Ford Taurus. Budd agreed to return to the
police station for more questioning after his apartment was
searched. Before this second interview, Budd was re-
minded again that the interview was voluntary and was
told that he did not have to answer any questions he
was not comfortable answering. When Budd called Detec-
tive Teshak the next day, Budd again agreed to meet at
the police station. Budd allowed Detective Teshak to
pick him up from the community college he was at-
tending and to drop him off at his apartment after the
interview. Again, Budd rode in the front seat of the
vehicle. Before asking any questions on January 17, 2007,
Detective Teshak told Budd that the interview was volun-
tary and that he did not have to answer any of the ques-
tions.
Each interview took place in what Detective Teshak
described as a “soft” interview room on the second floor
that had carpet, wallpaper, and comfortable furniture,
and was used to interview victims, witnesses, and sus-
pects. At the suppression hearing, Budd agreed that
neither officer raised his voice during the January 15, 2007
interviews, that the tone of those interviews was “very
calm,” and that “the whole interaction during the entire
day was fairly calm.” The officers were dressed in plain
clothes and, though carrying sidearms, never made a
display of force. Budd was never placed in handcuffs
before he was formally arrested and read his Miranda
rights.
The majority of Budd’s support for his contention that
he was in custody focuses around the fact that he was in
No. 08-1319 11
a police station and could not roam the halls of the investi-
gations unit unescorted. Budd explains how he had to
push a buzzer to be let into the main lobby of the police
station. He was escorted to the second floor by way of
an elevator that required a magnetic security card to
operate. He walked down a long hallway to get to the
interview room. He understood that he was not allowed
to move throughout the building without one of the
officers with him. 3 These are not extraordinary circum-
stances, especially in light of the fact that Budd agreed
to meet at the police station.
Budd’s only other complaint is that toward the end of the
first interview he requested to go to the bathroom and
claims he was told: “in just a minute.” Sergeant Titus did
not remember Budd being asked to wait. Regardless, this
did not “deprive[ ] [Budd] of his freedom of action in any
significant way.” Miranda v. Arizona, 384 U.S. 436, 444
(1966). Budd was escorted to a secure bathroom where
the occupant could not open the door or flush the toilet
from the inside. This was the closest bathroom to the
interview room and was commonly used by all inter-
viewees in that part of the building, including witnesses.
Sergeant Titus explained the security features to Budd
before he used the bathroom and stood outside the door
to let Budd out upon request. Based on the totality of the
circumstances, a reasonable person in Budd’s position
3
Sergeant Titus testified that all non-staff persons, including
officers from other jurisdictions, were required to be escorted
in and out of the secured part of the building.
12 No. 08-1319
would have believed he or she was free to leave. Therefore,
Budd was not in custody and Miranda warnings were
not required.
B. Seagate Hard Drive
Budd contends that the discovery of the Seagate hard
drive was derivative of the initial illegal seizure of his
Gateway computer so that the evidence on the hard drive
should have been suppressed. As discussed above, Budd’s
statements to the police were not derivative of any illegal
seizure. They were voluntarily given while Budd was not
in custody. It follows then, that evidence discovered as
a result of those statements cannot be tainted.
During one of his voluntary conversations with the
police, Budd verbally agreed to let the officers search his
apartment. Budd allowed the police into his apartment
and signed a consent-to-search form. When the hard
drive was discovered, Budd verbally consented to the
officers taking the hard drive for the purpose of searching
it. Budd later signed a separate consent-to-search form
for the hard drive.
Despite giving two verbal consents and signing two
consent-to-search forms, all at separate times, Budd now
contends that he did not knowingly or voluntarily consent
to the search of his apartment or to the search of the
Seagate hard drive. We agree with the district court that
Budd voluntarily consented to both searches. Both of the
consent forms Budd signed stated:
1. I have not been promised anything in exchange for
consenting to this search.
No. 08-1319 13
2. I have not been threatened in any way to force
or compel me to give this voluntary consent to
search.
3. I have the right to refuse the search of my vehicle,
person, or residence.
Detective Teshak testified that he observed Budd take
the time to pause and read both consent forms. At the
suppression hearing, Budd admitted that he at least
skimmed the form the first time he signed it. Budd also
confirmed that he was not threatened into signing the
forms. Additionally, the actual search of the hard drive
was not conducted until the police obtained a valid
warrant, as discussed below. Because the hard drive was
discovered and searched pursuant to Budd’s voluntary
and repeated consent, and the search was executed pursu-
ant to a valid warrant, the district court did not err in
denying Budd’s motion to suppress the evidence found
on the hard drive.
C. Gateway Computer
As mentioned above, we assume, for the purpose of this
review, that the seizure of Budd’s computer was unrea-
sonable. However, the legality of the seizure is not the
ultimate issue in this case because an illegal seizure does
not automatically preclude all evidence obtained after
the seizure.
[T]he interest of society in deterring unlawful police
conduct and the public interest in having juries
receive all probative evidence of a crime are properly
14 No. 08-1319
balanced by putting the police in the same, not a
worse, position that they would have been in if no
police error or misconduct had occurred. When the
challenged evidence has an independent source,
exclusion of such evidence would put the police in a
worse position than they would have been in absent
any error or violation.
Nix v. Williams, 467 U.S. 431, 443 (1984) (citations omitted).
Typically these so-called independent source doctrine
cases involve an illegal search and discovery of evidence
followed by a second search conducted after a warrant
is obtained. See Murray v. United States, 487 U.S. 533, 535-
36 (1988); see also United States v. Markling, 7 F.3d 1309,
1311-12 (7th Cir. 1993). In this case, we are faced with the
presumptively illegal seizure of Budd’s computer followed
by a search of the computer conducted pursuant to a
warrant. However, the same process can be used to
determine whether the evidence discovered on Budd’s
computer was obtained independent of the original
illegal police activity. “The ultimate question” in this
case is whether the search of Budd’s computer pursuant
to the search warrant “was in fact a genuinely independent
source of the” evidence found on his computer. Murray,
487 U.S. at 542.
Determining whether evidence was obtained from an
independent source involves a two-part test. Markling,
7 F.3d at 1315. “The first question is whether the
illegally obtained evidence affected the magistrate’s
decision to issue the search warrant.” Id. (citing Murray,
487 U.S. at 542). The heart of this question is whether,
No. 08-1319 15
taking away any illegally obtained information, the
affidavit still demonstrated probable cause. Markling, 7
F.3d at 1317. In this case, the only thing possibly illegally
obtained was the computer itself and physical possession
of the computer was not required to show probable
cause. Doyle’s testimony alone was sufficient to create “a
fair probability that contraband or evidence of a crime
[would] be found” on Budd’s computer. Illinois v. Gates,
462 U.S. 213, 238 (1983).
The admissions by Budd, though not necessary, also
created probable cause and were not tainted by the
illegal seizure, as discussed above.
The second part of this test asks whether the “decision to
seek the warrant was prompted by” information gained
from the initial illegal activity. Markling, 7 F.3d at 1315-16
(quoting Murray, 487 U.S. at 542). Again, in this case, the
only thing gained from the initial illegal activity was
physical possession of the computer. The district court
seemed to credit Special Federal Officer Lynn’s testi-
mony that he would have applied for a warrant regard-
less of whether the Moline Police Department had
physical possession of the computer. While it is true that
“officers’ assurances” that they would have sought a
warrant are not to be credited “[w]here the facts render
those assurances implausible,” in this case, the assurances
were not implausible. Murray, 487 U.S. at 540 n.2. Regard-
less, the computer was not searched until a warrant
was obtained so the only information available when
deciding to apply for the warrant was Doyle’s account of
what he had seen and Budd’s statements, both of which
16 No. 08-1319
were untainted and it was permissible to consider them.
Simply put, the officers were not influenced by any
improper information because there was no improper
information by which to be influenced.4
III. CONCLUSION
For the reasons set forth above, we A FFIRM the
district court’s denial of Budd’s motion to suppress.
4
Budd’s argument that he might have deleted the files had
the computer been promptly returned fails because it is specula-
tive and because there is no constitutional right to destroy
evidence. Segura, 468 U.S. at 815-16 & n.10.
12-17-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001802/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3678 & 06-3768
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM FULLER III & BRIAN K. JOHNSON,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 04-CR-253-7&9—David H. Coar, Judge.
____________
ARGUED OCTOBER 3, 2007—DECIDED JULY 11, 2008
____________
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. William Fuller and Brian Johnson
were charged as part of a drug trafficking conspiracy
operating in the southwest suburbs of Chicago, Illinois
from January 2000 until March 2004. The conspiracy’s self-
professed ringleader, Rodney Bew, pleaded guilty and
agreed to testify against Fuller and Johnson in exchange
for the government recommending a reduction in his
sentence. Fuller and Johnson jointly proceeded to trial,
and a jury convicted Fuller of conspiring to possess
with intent to distribute cocaine while finding Johnson
2 Nos. 06-3678 & 06-3768
guilty of conspiring with intent to distribute cocaine and
crack. See 21 U.S.C. §§ 841(a)(1), 846. In these consoli-
dated appeals, Fuller challenges the sufficiency of the
evidence underlying his conviction and the district
court’s determination at sentencing that he was respon-
sible for more than 500 grams of cocaine. Johnson’s ap-
pointed counsel moves to withdraw under Anders v.
California, 386 U.S. 738 (1967), because he could not dis-
cern any nonfrivolous arguments to pursue. We affirm
Fuller’s conviction and sentence but deny Johnson’s
counsel’s motion to withdraw.
Background
At trial Bew testified at length about his four-year drug-
trafficking operation and Johnson’s and Fuller’s respec-
tive roles as deliveryman and purchaser. Bew testified
that his operation included sales of powder cocaine,
crack, and marijuana. Every week or two he would pur-
chase up to one kilogram of cocaine from his suppliers. To
maximize his profit, Bew would chemically alter the
cocaine either by “cooking” it into crack, or by “rerocking”
it—a process through which he diluted the cocaine
with substances such as paint thinner. Bew sold the
crack directly to users and the rerock cocaine to drug
dealers.
Bew testified that Johnson assisted his operation by
delivering crack to customers and returning the pro-
ceeds to Bew. Bew also taught Johnson to cook cocaine
into crack. In return Bew rewarded Johnson with drugs
or by paying for his hotel rooms. In support of Bew’s
testimony, the government introduced Johnson’s grand
jury testimony, in which he admitted that he delivered
Nos. 06-3678 & 06-3768 3
at least 15 to 20 bags of crack for Bew every week between
May and August of 2003. He also admitted that on sev-
eral occasions he accompanied Bew to pick up and trans-
port large quantities of powder cocaine from a supplier.
Johnson further admitted that he supplied materials to
help Bew prepare and package crack.
As for Fuller, Bew testified that he was a dealer who
purchased rerock cocaine from Bew once every week or
two beginning in March 2003. The amount of Fuller’s
purchases varied from an “eight ball” (three grams) up to
127 grams. Bew would give Fuller the cocaine on full or
partial credit when he was without sufficient money to
pay for it up front, which was the “majority of the time.”
Fuller usually would make payment within seven to ten
days, and Bew would then use this money to buy more
drugs. Bew estimated that Fuller bought between 750
grams and one kilogram of cocaine from him in 2003.
Although Bew knew that Fuller was a drug dealer, he
did not know Fuller’s customers nor did he typically
share his customers with Fuller. Bew testified that Fuller
was “his own man” and that they kept the customer “end
of the business separate.” But on one occasion, Bew
brought Fuller a customer, Kendrick Pruitte, who
wanted to purchase rerock cocaine. It is unclear whether
Fuller actually sold Pruitte cocaine, but Bew testified
he “believe[s] that they hooked up.”
Bew testified that in addition to selling Fuller cocaine,
he would occasionally buy small amounts from Fuller
when his supply was low. Bew would also seek Fuller
out for payments when he needed money to replenish
his own cocaine supply. On one such occasion Bew
called Fuller to say that he needed money to buy more
cocaine, and Fuller agreed to pay him the $1,000 he
4 Nos. 06-3678 & 06-3768
owed from a previous transaction. Three days later they
spoke again, and when Bew pressed Fuller for money so
he could go to his suppliers, Fuller asked for more time
to sell his cocaine so he could get the money Bew needed.
In addition to Bew’s testimony, the government offered
transcripts of recordings taken from wiretaps of Bew’s
phone conversations. Of the approximately 12,000 inter-
cepted calls during a two-month period, 39 involved
conversations between Bew and Fuller. The recordings
reveal that Bew and Fuller used code words when dis-
cussing their drug deals, with “basketball” or “pool table
ball” referring to three grams of “work,” or cocaine. In the
first call, Bew asked Fuller for the $3,500 he owed for
4½ ounces of rerock cocaine that Bew had fronted him.
Bew later informed Fuller that he had overpaid by $100
for a previous drug purchase. In another call Fuller told
Bew to go to the hotel where he was staying to pick up
cocaine out of the cigar box where he kept his stash.
Before jury deliberations began, the district court in-
structed the jury that “[t]he existence of a simple
buyer/seller relationship between a defendant and an-
other person without more is not sufficient to establish
a conspiracy even where the buyer intends to sell
cocaine/cocaine base.” The jury found both Fuller and
Johnson guilty of conspiracy. It returned a special ver-
dict finding that Fuller had participated in a conspiracy
involving more than 500 grams of cocaine, and that John-
son had participated in a conspiracy involving more
than 500 grams of cocaine and at least 50 grams of crack.
Both Johnson and Fuller filed motions for a new trial; the
district court denied each of them.
At Johnson’s sentencing, the district court found that
Johnson was responsible for 134 grams of crack and
Nos. 06-3678 & 06-3768 5
2 kilograms of powder cocaine. Using the drug equiva-
lency table set forth in § 2D1.1(c)(3) of the sentencing
guidelines, the court applied a base offense level of 34.
The court also found that Johnson had threatened Bew
when they were in lockup together during the trial;
Johnson told Bew he would be killed in jail for cooper-
ating with the government. The court accordingly added
a two-level enhancement for obstruction of justice,
see U.S.S.G. § 3C1.1, and after considering the sen-
tencing factors set forth in 18 U.S.C. § 3553(a), sentenced
Johnson to 262 months in prison, the low end of the
guidelines range for Johnson’s level IV criminal history
and total offense level of 36.
At Fuller’s sentencing, the district court found while
overruling Fuller’s objection that he was responsible for
more than 500 grams of cocaine. The court based its find-
ing on Bew’s testimony that he sold Fuller at least
27 ounces, or approximately 750 grams, of cocaine in
2003. The court calculated a total offense level of 34, see
U.S.S.G. § 2D1.1(c)(3), which, when applied against
Fuller’s criminal history category of VI, led to an ad-
visory guidelines range of 262 to 327 months’ impris-
onment. The court sentenced Fuller to 262 months.
Analysis
I. Fuller
On appeal Fuller argues that the evidence at trial demon-
strated only that he had a buyer-seller relationship with
Bew, and that such evidence is insufficient to sustain a
conviction for conspiracy. Fuller also baldly asserts that
the district court’s determination that he is responsible
for more than 500 grams of cocaine amounts to nothing
6 Nos. 06-3678 & 06-3768
more than “nebulous eyeballing” and “unreliable guess-
work.” The arguments are without merit.
A. Sufficiency of the Evidence
Fuller is waging an uphill battle in challenging the
sufficiency of the evidence; to succeed, he is required
to show that even when viewing the evidence in the
light most favorable to the prosecution, “no juror could
have found guilt beyond a reasonable doubt.” United States
v. Luster, 480 F.3d 551, 555 (7th Cir. 2007). We will not
second-guess the jury’s credibility determinations and
will overturn Fuller’s conviction only if the record is
devoid of evidence from which a reasonable jury could
find him guilty of conspiracy. See United States v. Carrillo,
435 F.3d 767, 775 (7th Cir. 2006).
Fuller is correct that a buyer-seller relationship is insuf-
ficient to sustain a conspiracy conviction. See United States
v. Lechuga, 994 F.2d 346, 350 (7th Cir. 1993) (en banc)
(plurality). Instead, there must be evidence from which a
rational jury could find that two or more people agreed
to possess and distribute cocaine, and that Fuller “know-
ingly and intentionally joined in this agreement.” See
Luster, 480 F.3d at 555. To determine whether a con-
spiracy was proved, we look for “evidence of a pro-
longed and actively pursued course of sales coupled
with the seller’s knowledge of and a shared stake in the
buyer’s illegal venture.” United States v. Contreras, 249 F.3d
595, 599 (7th Cir. 2001) (quotation marks and citation
omitted). Factors that weigh in favor of such a finding
include the length of the affiliation, the established meth-
od of payment, standardized transactions, and a level of
mutual trust. United States v. Hach, 162 F.3d 937, 943 (7th
Nos. 06-3678 & 06-3768 7
Cir. 1998). If enough of these factors “are present and
point to a concrete, interlocking interest beyond individ-
ual buy-sell transactions,” we “will not disturb the fact-
finders [sic] inference that at some point, the buyer-
seller relationship developed into a cooperative ven-
ture.” Id.
Taken in the light most favorable to the government,
we are convinced that the evidence at trial established
that Fuller’s relationship with Bew went beyond that of a
buyer and seller. Fuller argues that their transactions
were insufficiently standardized, but he bought cocaine
from Bew on a steady basis over the course of their five-
month affiliation. Although the amount of cocaine varied
with each purchase, Fuller bought distribution amounts
of cocaine—ranging from 3 to 127 grams—every week or
two. Fuller and Bew consistently used Bew’s cellphone
to communicate, and they used code words to discuss
the types and amounts of drugs for each transaction. See
Luster, 480 F.3d at 555 (identifying use of code words as
indicator of conspiracy). Moreover, they had a standard
method of payment; Bew testified that he gave Fuller
drugs on full or partial credit the “majority of the time.” A
jury could very reasonably infer from the fact that Bew
fronted drugs to Fuller not just an established, on-going
relationship, but that they shared a high level of trust. See
United States v. Medina, 430 F.3d 869, 882 (7th Cir. 2005);
United States v. Torres-Ramirez, 213 F.3d 978, 982 (7th
Cir. 2000). The jury also could have inferred mutual trust
from Bew’s testimony that he alerted Fuller when he
overpaid for the cocaine, and that Fuller instructed Bew
to go to his hotel room on one occasion to pick up drugs.
Most importantly, the evidence at trial reflected that
Fuller had a shared stake in Bew’s enterprise. Bew’s
8 Nos. 06-3678 & 06-3768
fronting cocaine to Fuller showed they shared an interest
in the success of Fuller’s sales; unless Fuller sold the
cocaine, Bew would not be paid. See Torres-Ramirez, 213
F.3d at 982. And on more than one occasion Fuller
agreed to settle an outstanding debt so that Bew could
purchase cocaine from his suppliers. At one point Fuller
asked Bew for time to make a few drug sales to raise
money that he owed to Bew so he could purchase more
cocaine. At other times, Fuller would bolster Bew’s cocaine
supply, and on at least one occasion Bew brought a cus-
tomer directly to Fuller when Bew was low on drugs. All
of this evidence gives rise to an inference that Fuller and
Bew cooperated in furtherance of a drug trafficking
operation that went beyond Fuller’s role as buyer and
Bew’s role as seller. See Luster, 480 F.3d at 555-56; United
States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006) (noting
that evidence that coconspirators were on same side of
drug transaction sufficient to establish conspiracy).
Fuller argues that no reasonable jury could infer that he
shared a stake in a larger drug trafficking conspiracy
because Bew regularly duped him by selling him rerocked
cocaine. But the only evidence that this scam had any
effect on Fuller’s sales is the recording of one phone call
in which Fuller complained about a “drought” caused by
“bad drugs.” There is no evidence that Fuller had
trouble profiting from the rerocked cocaine on a regular
basis. And the fact that Bew dishonestly tried to maximize
his own profits by secretly diluting the cocaine used in
his transactions with Fuller does not diminish the evid-
ence showing that Bew relied on Fuller to sell the
rerocked cocaine. Accordingly, Fuller has not met his
heavy burden of showing that the evidence was insuf-
ficient to sustain his conspiracy conviction.
Nos. 06-3678 & 06-3768 9
B. Fuller’s Sentence
Fuller argues and speculates that we should remand
for resentencing because in finding him accountable for
more than 500 grams of cocaine, the district court errone-
ously relied on Bew’s testimony that he sold Fuller between
750 grams and one kilogram in 2003. He argues that the
wiretap transcripts contradict Bew’s testimony because,
according to Fuller, they show that only 73 grams of
cocaine changed hands between him and Bew over a two-
month period. We review the district court’s calculation
of drug quantity for clear error, meaning we will remand
only if we are left with “a definite and firm conviction
that a mistake has been committed.” United States v. Artley,
489 F.3d 813, 821 (7th Cir. 2007) (citation omitted).
Fuller’s argument ignores the jury’s special verdict
finding that Fuller is accountable for at least 500 grams
of cocaine. In light of the special verdict, it would have
been “both unnecessary and inappropriate for the judge
to reexamine, and resolve in the defendant’s favor, a
factual issue that the jury has resolved in the prosecutor’s
favor beyond a reasonable doubt.” See United States v.
Rivera, 411 F.3d 864, 866 (7th Cir. 2005). The special ver-
dict bound the court to a statutory minimum sentence of
5 years. See 21 U.S.C. § 841(b)(1)(B)(ii). But Fuller argues
that the government should be judicially estopped
from asserting that the special verdict is binding because
it did not object when the court said at sentencing that
it considered the special verdict to be advisory. But judi-
cial estoppel is a doctrine of equity, see Cannon-Stokes v.
Potter, 453 F.3d 446, 448 (7th Cir. 2006), and Fuller has
not explained why it would be unfair to find the
special verdict binding for purposes of calculating a
guidelines range where it is indisputably binding to
10 Nos. 06-3678 & 06-3768
determine the mandatory minimum sentence. See Rivera,
411 F.3d at 866.
In any event, the transcripts do not contradict Bew’s
testimony that he sold Fuller at least 750 grams of co-
caine. The transcript of the first call between Fuller and
Bew reveals that Fuller owed Bew $3,500 for drugs he
had fronted, an amount reflecting Bew’s price for 126
grams of cocaine. That call corroborates Bew’s testimony
that he sold anywhere from 3 grams to 126 grams of
cocaine to Fuller in each of their transactions. The fre-
quency of the calls between Fuller and Bew corroborates
Bew’s testimony that he sold Fuller cocaine once a week
or once every two. And more than one call shows that
Bew was seeking payment for debts of $1,000, a price
consistent with a sale of approximately two ounces of
cocaine. At sentencing, the government was required to
show the amount of drugs only by a preponderance of
the evidence, see Artley, 489 F.3d at 821, and Fuller has
not demonstrated that anything in the wiretaps shows
that the court clearly erred in finding that the govern-
ment met its burden.
II. Johnson
Johnson has filed a response opposing counsel’s Anders
submission. See Cir. R. 51(b). Our review is limited to the
potential issues identified in counsel’s facially adequate
brief and in Johnson’s response. See United States v. Schuh,
289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether Johnson could argue
that there was insufficient evidence to support his con-
viction for conspiracy involving crack rather than powder
cocaine, but properly concludes that any such argument
Nos. 06-3678 & 06-3768 11
would be frivolous. Bew specifically testified that Johnson
delivered crack for him, and he described how he
taught Johnson to cook powder cocaine into crack. What’s
more, the government introduced Johnson’s own grand
jury testimony in which he admitted selling 15 to 20 one-
gram bags of crack for Bew every week over a four-
month period. The jury believed him; it returned a
special verdict finding that the conspiracy involved at
least 50 grams of crack. Johnson asserts in his response
that there was no “physical evidence” that the drugs he
dealt were crack, but such evidence is unnecessary
given Bew’s testimony and his own admissions. Johnson
also asserts that it was his brother (who uses the same
nickname as Johnson), not him, who delivered crack for
Bew. But again, his assertion is belied by his own grand
jury testimony.
Counsel next asks whether Johnson could argue that
the district court improperly prevented his trial counsel
from determining Bew’s motive on cross-examination.
Johnson asserts that he could argue that the court erred
by preventing his trial counsel from asking Bew whether
he agreed to testify in exchange for the government’s
promise to drop charges filed against Bew’s wife. Although
Johnson was entitled to cross-examine Bew for evidence
of motive, the court may limit irrelevant testimony. See
Fed. R. Evid. 402; United States v. Smith, 454 F.3d 707, 714
(7th Cir. 2006). The government stated that it dropped
the charges against Bew’s wife after a magistrate judge
found no probable cause to support them. The court
determined that because the charges were dropped
before Bew was interviewed under a proffer agreement
and pleaded guilty, the decision did not affect Bew’s
decision to testify. The court allowed trial counsel to elicit
12 Nos. 06-3678 & 06-3768
from Bew on cross examination testimony about his
prior convictions, his plea agreement, and the substan-
tial sentence reduction he received in exchange for his
testimony. Thus counsel correctly concludes that it
would be frivolous for Johnson to argue that the court’s
limitation of Bew’s cross-examination was improper.
Johnson asserts that he could argue that the government
violated the rule in Brady v. Maryland, 373 U.S. 83 (1963),
by withholding evidence of its true motivation for drop-
ping the charges against Bew’s wife. Johnson asserts
that one year after his trial he reviewed the transcript
from her preliminary hearing and determined that the
government requested that the charges against her be
dropped. But that is entirely consistent with the gov-
ernment’s explanation that it decided to drop the
charges after a magistrate found no probable cause.
Accordingly, the potential Brady argument that Johnson
identifies is frivolous.
Counsel next turns to the notice the government filed
under 21 U.S.C. § 851 and asks whether Johnson could
argue that it gave inadequate notice of the govern-
ment’s intent to seek an enhanced mandatory minimum
sentence of 20 years based on Johnson’s previous drug
convictions. But counsel properly concludes that the
notice was sufficient to alert Johnson to the conse-
quences of a guilty verdict and to give him the chance to
dispute the accuracy of his prior convictions. See United
States v. Cooper, 461 F.3d 850, 854 (7th Cir. 2006). And
counsel correctly observes that it would be frivolous
to argue that the government was required to file a sec-
ond § 851 notice after filing the second superseding
indictment. Id. at 853-54.
Nos. 06-3678 & 06-3768 13
Counsel next considers whether Johnson could argue
that the district court erroneously applied a two-level
enhancement for obstruction of justice. See U.S.S.G. § 3C1.1.
Johnson asserts that he could argue that there was no
evidence to support this enhancement. But the presen-
tencing report (“PSR”) describes in detail the factual
basis for the enhancement; it states that after the first
day of trial a United States Marshal was present when
Johnson told Bew that he would be killed in prison
for testifying. In his objections to the PSR, Johnson ad-
mitted that he made the statement but blamed the Marshals
for putting him and Bew in the same lockup. Thus the
court was entitled to rely on the accuracy of the PSR’s
description of these events, and it would be frivolous
to argue that no evidence supports the enhancement. See
United States v. Parolin, 239 F.3d 922, 925 (7th Cir. 2001).
Counsel also correctly concludes that it would be friv-
olous to argue that the enhancement was improper be-
cause it did not deter Bew from testifying; an unsuc-
cessful attempt to obstruct justice is sufficient under
§ 3C1.1. See United States v. Davis, 442 F.3d 1003, 1009 (7th
Cir. 2006).
Finally, counsel asks whether Johnson could argue
that the district court miscalculated the drug quantity
attributable to him for sentencing purposes. The court
relied on Johnson’s testimony that during a sixteen-
week period he delivered for Bew at least 15-20 bags
containing one gram or half-gram of crack. The court used
the most conservative calculation possible from this
testimony; it determined that Johnson was accountable
for delivering only 15 half-gram bags during that period,
for a total of 120 grams of crack. The court then found
that Johnson admitted receiving from Bew as payment
14 Nos. 06-3678 & 06-3768
14 grams of crack. Adding that to the 120 grams delivered,
the court attributed to Johnson 134 grams of crack. The
court also found that Johnson admitted transporting
two kilograms of powder cocaine for Bew. The court then
consulted the drug equivalency table set forth in § 2D1.1,
advisory note 10, and properly determined that 134
grams of crack and two kilograms of powder cocaine
translate to 2,680 and 400 kilograms of marijuana, re-
spectively. Consulting the drug quantity table set forth
in § 2D1.1(c), the court determined that 3,080 kilograms
of marijuana resulted in a base offense level of 34.
Counsel considers whether Johnson could argue that
the court miscalculated the amount of crack attributable to
Johnson because he testified only that he received as
payments one eight ball (3.5 grams) of crack, rather than
14 grams. Counsel points out that this distinction makes
a difference because the extra 9.5 grams put Johnson over
the 3,000 kilogram threshold that stands between base
offense levels of 32 and 34. But as counsel correctly notes,
we would review the district court’s calculation of the
crack quantity only for clear error. See Artley, 489 F.3d
at 821. The court’s crack calculation rests on its conserva-
tive determination that Johnson delivered half-gram bags
of crack 15 times per week during a sixteen-week period.
But Johnson testified that he often delivered crack in one-
gram bags, and that he did so up to 20 times a week dur-
ing that period. Johnson’s testimony thus supports a
finding that he delivered much more—and certainly 9.5
grams more—than the 120 grams the court attributed to
him. Thus counsel correctly concludes that it would be
frivolous to argue that the court’s calculation of the
crack quantity was clearly erroneous.
Counsel concludes that any other challenge to Johnson’s
sentence would be frivolous, but in light of the Supreme
Nos. 06-3678 & 06-3768 15
Court’s decision in Kimbrough v. United States, 128 S. Ct.
558, 564 (2007), we cannot agree. In Kimbrough the Su-
preme Court held that district courts, in evaluating
the factors under 18 U.S.C. § 3553(a), are free to consider
the differential in guidelines ranges for offenses involving
like amounts of crack and powder cocaine. 128 S. Ct. at
575. At sentencing Johnson did not specifically ask the
district court to consider the differential, but we may
presume that the purpose of challenging whether his
offense involved crack or powder cocaine was to avoid
the effects of that differential. See United States v. Padilla,
520 F.3d 766, 774 (7th Cir. 2008). Accordingly, Johnson
preserved the issue of whether the district court could
consider the differential at sentencing. See id. Although
the court did not say whether it agreed with the 100:1 ratio
that existed at the time it sentenced Johnson, neither
did the court say that it would impose the same sentence
if not constrained by the guidelines. As a result, we have no
way of knowing on this record whether the court would
have imposed the same sentence had it known that it had
the discretion to consider the differential in guidelines
ranges for crack and powder cocaine. Cf. United States v.
White, 519 F.3d 342, 349 (7th Cir. 2008). Thus it would not
be frivolous for counsel to argue that a remand is appropri-
ate. See Padilla, 520 F.3d at 774; United States v. Taylor, 520
F.3d 746, 747-48 (7th Cir. 2008).
Accordingly, we DENY Johnson’s counsel’s motion to
withdraw and direct counsel to file a brief on the merits
addressing this issue and any others he might deem
appropriate. We do, though, invite the parties to file a
joint motion for a remand, should they deem that appro-
priate. We AFFIRM Fuller’s conviction and sentence.
16 Nos. 06-3678 & 06-3768
Briefing in Johnson’s appeal will proceed as follows:
1. The brief and required short appendix of the appel-
lant are due by August 11, 2008.
2. The brief of the appellee is due by September 10,
2008.
3. The reply brief of the appellant, if any, is due by
September 24, 2008.
Note: Circuit Rule 31(e) (amended Dec. 1, 2001) requires that counsel tender
a digital copy of a brief, from cover to conclusion, at the time the
paper copies are tendered for filing. The file must be a text based PDF
(portable document format), which contains the entire brief from cover
to conclusion. Graphic based scanned PDF images do not comply with
this rule and will not be accepted by the clerk.
Rule 26(c), Fed. R. App. P., which allows three additional days after
service by mail, does not apply when the due dates for briefs are specif-
ically set by order of this court. All briefs are due by the dates ordered.
Important Scheduling Notice !
Notices of hearing for particular appeals are mailed shortly before the
date of oral argument. Criminal appeals are scheduled shortly after the
filing of the appellant’s main brief; civil appeals after the filing of the
appellee’s brief. If you foresee that you will be unavailable during a peri-
od in which your particular appeal might be scheduled, please write
the clerk advising him of the time period and the reason for such unavail-
ability. Session data is located at http://www.ca7.uscourts.gov/cal/
calendar.pdf. Once an appeal is formally scheduled for a certain date, it
is very difficult to have the setting changed. See Circuit Rule 34(e).
USCA-02-C-0072—7-11-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001901/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1993 & 07-3178
EZATULLA ORYAKHIL,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A99-027-098
____________
ARGUED FEBRUARY 26, 2008—DECIDED JUNE 17, 2008
____________
Before KANNE, SYKES, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Ezatulla Oryakhil, a native and
citizen of Afghanistan, petitions for review of an order
of removal issued by an Immigration Judge (IJ), which
became final when the Board of Immigration Appeals (BIA)
dismissed his appeal. The IJ credited Oryakhil’s testimony
that he has been, and will be, targeted by Taliban rebels
because of his position in the Afghan military and his
affiliation with the United States. However, the IJ also
determined that Oryakhil could reasonably relocate
within Afghanistan to avoid future harm. As a result, the
2 Nos. 07-1993 & 07-3178
IJ denied Oryakhil’s application for asylum, withholding
of removal, and protection under the Convention Against
Torture (CAT), and ordered Oryakhil removed to Afghani-
stan. Oryakhil also petitions for review of a final order of
the BIA, denying his motion to reopen the IJ’s decision
based on material evidence that was previously unavail-
able. Because substantial evidence does not support the
IJ’s determination that Oryakhil could reasonably relo-
cate to avoid future harm, we grant Oryakhil’s petition
for review of the final order of removal. Oryakhil’s peti-
tion for review of the order denying his motion to reopen
is therefore moot.
I. HISTORY
Oryakhil attempted to enter the United States at Chicago
O’Hare International Airport in September 2006. Oryakhil
presented the immigration officer with a valid Afghan
passport and an A-2 non-immigrant visa, see 8 C.F.R.
§ 214.1(a)(2), which had been revoked. The immigration
officer denied Oryakhil entry to the United States, and
Oryakhil was taken to a correctional facility in Illinois. The
Department of Homeland Security commenced removal
proceedings against Oryakhil one week later. Oryakhil
responded by conceding removability and filing an ap-
plication for asylum and withholding of removal, as well
as for CAT protection, in October 2006.
The IJ elicited testimony at immigration hearings con-
ducted on December 5 and December 6, 2006. Oryakhil’s
asylum application, affidavits, and testimony all revealed
that Oryakhil began training for a career in the Afghan
military in 1986, at the age of thirteen. After attending
the Afghanistan Military College and the Afghanistan
Nos. 07-1993 & 07-3178 3
Military University, Oryakhil began his military service
in 1993 as Lieutenant and Company Commander in the
North Afghanistan Army. Oryakhil served in this role
until 1994; the two-year span was the only time he served
in a combat role. In 1995, Oryakhil transferred to serve as
Chief of Topography for the Kabul Intelligence Unit. When
the Taliban seized power in 1996, Oryakhil was re-
leased from his military duties, but until 1997, Oryakhil
collected a pension that the Taliban provided to all soldiers
it dismissed from duty. After he left official military
service, Oryakhil secretly sent intelligence reports to the
forces in Northern Afghanistan that were resisting the
Taliban.
When the United States and NATO toppled the Taliban
regime in 2001, Oryakhil returned to his post in the Kabul
Intelligence Unit, which was under the control of the
new Karzai government. Upon resuming his military
duties, Oryakhil attended the General Staff College, a
military educational institution supported by NATO
and the United States, which sought to implement new
policies and procedures for the military of the new
Afghan regime. Oryakhil completed the required courses
at the General Staff College in four months and attained
the second-highest grade-point-average at the College.
Because of his outstanding achievement, the Afghan
military asked Oryakhil to remain at the College as a
teacher. Beginning in May 2003, Oryakhil taught English
and computer skills at the General Staff College. Oryakhil
did not live in military barracks while teaching at the
college; he lived at his parents’ home and commuted to
and from work each day.
In 2005, American and NATO officers affiliated with the
General Staff College invited Oryakhil to take advanced
4 Nos. 07-1993 & 07-3178
English courses at the Defense Language Institute (“DLI”),
a United States government training program located
at Lackland Air Force Base in San Antonio, Texas.
Oryakhil accepted the invitation, and in February 2006,
Oryakhil traveled to the United States on an A-2 non-
immigrant visa paid for by the United States. Oryakhil
studied English at DLI for approximately six months,
but he could not pass the tests required to continue his
training at DLI. As a result, Oryakhil’s visa was revoked.
Oryakhil received a certificate of attendance from DLI,
and went back to his family’s home in Kabul on Septem-
ber 4, 2006.
Within days of his arrival in Afghanistan, Oryakhil
attended a large family wedding. A day or two later,
Oryakhil visited a cousin’s house in another neighbor-
hood of Kabul. At this point, news of Oryakhil’s return
had spread. While Oryakhil was at his cousin’s house,
four Taliban insurgents wearing black turbans and armed
with rifles visited his parents’ home in the middle of the
night, and demanded to know Oryakhil’s whereabouts
and why the family had sent Oryakhil to the United States.
Oryakhil’s father immediately called Oryakhil at his
cousin’s house to warn him that he and his family were in
danger. Oryakhil had heard many stories of other “dis-
loyal” individuals that disappeared at the hands of
armed Taliban militiamen who entered their homes at
night. He decided that he was no longer safe in Kabul—
which he believed to be the safest city in Afghanistan—and
decided to return to the United States.
The next day, Oryakhil purchased an airline ticket back
to the United States, but was told by the airline that the
next flight would not leave for almost two weeks. About a
week later, on September 14, 2006, Oryakhil met with his
Nos. 07-1993 & 07-3178 5
commanding general at the General Staff College to check
in for the first time since his return to Afghanistan.
Oryakhil did not tell the officer that he believed that he was
in danger or that he intended to flee Afghanistan. The
officer told Oryakhil to report for duty two days later,
but Oryakhil failed to report as instructed, though
Oryakhil realized that his failure to report could result in
a twelve-year prison sentence for desertion. Instead,
Oryakhil made one final stop at his parents’ home during
daylight hours to collect his belongings, and left Afghani-
stan on September 19, 2006. Oryakhil attempted to
reenter the United States when he was detained at O’Hare.
Oryakhil testified at his immigration hearing that he
neglected to tell his commanding officer about the threats
against his life by the Taliban because the General Staff
College did not have sufficient soldiers to protect the
school, and because military barracks no longer existed
outside of Kabul—in Oryakhil’s view, asking the officer
for protection would have been futile. Oryakhil also
testified that he did not carry a gun in his post as a teacher
at the General Staff College, and that he feared that if he
sought assistance from the military, it would further draw
the Taliban’s attention to Oryakhil’s allegiance with the
United States and would place his family in jeopardy.
Oryakhil stated that if he returns to Afghanistan, he
will likely be prosecuted for desertion because he failed
to report for duty on September 16, 2006.
Oryakhil also presented corroborative testimony from
Ann Carlin, an expert witness, who discussed the country
conditions in Afghanistan. Carlin testified that since
2004, the Taliban insurgency has been bolstered by ex-
ternal financing, and that their attacks have augmented
fourfold to an average of about 600 per month. Carlin
6 Nos. 07-1993 & 07-3178
stated that the Afghan police force is too weak and inef-
fective to successfully quell the attacks; in fact, Carlin
stated that the police could “barely protect President
Karzai” from attack. Carlin elaborated that in addition to
targeting Americans, persons affiliated with America,
and Afghan army personnel, the Taliban has made many
threats against school teachers and health workers because
they see them as “easy targets.” Carlin also explained
that the Taliban often carries out attacks against these
targets while they commute to and from work in the
evening, or at night while the targets sleep. In an affidavit
provided to the immigration court, Carlin noted that if
Oryakhil lived alone outside of his family home, he
might be at risk because he would be viewed suspi-
ciously given that Afghans live with their immediate
and extended families.
Along with the hearing testimony of Oryakhil and
Carlin, the IJ had before her an extensive record that
contained, among other things: affidavits from Oryakhil
and Carlin, Oryakhil’s asylum application, Oryakhil’s
certificate from DLI, State Department travel advisories
and reports on country conditions in Afghanistan, a
United Nations report on Afghanistan, and over two
dozen news reports and articles documenting the resur-
gence of the Taliban in Afghanistan in recent years.
On December 6, 2006, the IJ issued an oral decision, in
which she first concluded that Oryakhil had testified
credibly. The IJ noted that Oryakhil was consistent
throughout his applications and his testimony, and that
Oryakhil’s story comported with the background mate-
rials, country conditions, and expert testimony in the
record. As a result, the IJ stated that it was “not necessary
to require any type of corroborating evidence.” The IJ then
Nos. 07-1993 & 07-3178 7
found that Oryakhil had demonstrated a reasonable fear
of being violently harmed by members of the Taliban
due to his travel to, and perceived affiliation with, the
United States. The IJ stated that Oryakhil’s attendance at
the family wedding upon his return likely drew the
Taliban’s attention, and that “the government of Afghani-
stan is unable to control the Taliban, unable to control
roving bands of individuals who may be associated with
the Taliban, or acting under their auspices.” Consequently,
the IJ determined that the government could not protect
Oryakhil if he remained at his parents’ home. The IJ also
found Oryakhil’s testimony that he would subject his
family to an increased risk of harm if he sought protec-
tion from the Afghan government to be “a credible state-
ment, in light of country conditions.”
Despite these findings, the IJ concluded that Oryakhil
had not met his burden of proof on his claim for asylum
because she believed that Oryakhil could have received
protection from the Afghan military: “However, where
the respondent’s case fails, in this Court’s estimation is
that prior to leaving his country, he never sought to
avail himself of any form of protection from the military
where he served.” The IJ recognized that Oryakhil had
not engaged in any fighting or “combatant type of work,
since 1994.” The IJ acknowledged that this fact might make
it difficult for Oryakhil to secure relocation or a dif-
ferent position in the military, but noted that, in any event,
“he never sought that. He never sought any type of protec-
tion in the form of being allowed to live on any military
barracks within Afghanistan, or within Kabul.” The IJ also
dismissed Oryakhil’s claim that relocation through the
military would no longer be an option to him—because he
will be considered a deserter from the Afghan military
8 Nos. 07-1993 & 07-3178
upon his return—by demanding documentary evidence
from Oryakhil that would corroborate his desertion
argument.
The IJ recognized the volatile political situation and
turbulent conditions in Afghanistan, but curtly stated
that Oryakhil “has not established to this Court’s satis-
faction that conditions, as chaotic and violent as they are
throughout Afghanistan, are such that he could not
have traveled to another part of the country within the
military, and received some sort of relative safety.” In
support of this finding, the IJ noted that the Afghan
military had provided Oryakhil with housing outside of
Kabul when he served as a combatant between 1992 and
1994. She also noted that while Oryakhil might face harm
outside of Kabul, this harm would not be on account of his
affiliation with the United States, and was therefore
irrelevant to his ability to relocate.
As a result, the IJ denied Oryakhil’s applications for
asylum and withholding of removal. The IJ also denied
Oryakhil’s application for CAT protection because he had
not claimed that he would be subject to extreme mental
suffering or physical pain at the direction or acquiescence
of the Afghan government. The IJ ordered Oryakhil
removed to Afghanistan. Oryakhil appealed to the BIA,
which concluded that the IJ had considered all relevant
evidence before her. The BIA issued a short opinion
and dismissed Oryakhil’s appeal in April 2007. Oryakhil
timely filed a petition for review of the final order of
removal with this court in May 2007.
Oryakhil then filed a motion to reopen with the BIA in
July 2007, seeking to submit previously unavailable
evidence: (1) a letter from his father describing the
Taliban’s continued efforts to capture Oryakhil and
Nos. 07-1993 & 07-3178 9
terrorize his family, and (2) a letter he termed an “arrest
warrant” that was sent from his commanding officer in
the Aghan Army to the Afghan police, requesting that
the police investigate Oryakhil’s failure to report for duty.
The BIA denied Oryakhil’s motion to reopen as untimely.
In September 2007, Oryakhil filed a new petition for re-
view with this court—this time taking issue with the
BIA’s denial of his motion to reopen. Thereafter, we
consolidated both petitions for review.
II. ANALYSIS
In his petitions for review, Oryakhil contends that the
IJ’s decision to deny him asylum and remove him to
Afghanistan was not supported by substantial evidence
because the record does not demonstrate that he could
reasonably relocate within Afghanistan. Oryakhil also
argues that, even if the BIA properly affirmed the IJ’s
asylum decision, the BIA improperly denied his motion
to reopen, which was based on newly discovered evid-
ence. Oryakhil does not challenge the IJ’s determination
that he was not entitled to relief under CAT, and he also
failed to raise his CAT claim in his brief before the BIA;
he has therefore waived judicial review on that claim. See
Haxhiu v. Mukasey, 519 F.3d 685, 692 (7th Cir. 2008).
Because the BIA relied on the IJ’s decision when it
dismissed Oryakhil’s appeal of the final order of removal,
we review the IJ’s decision as supplemented by the BIA.
See Khan v. Mukasey, 517 F.3d 513, 517 (7th Cir. 2008); Pavlyk
v. Gonzales, 469 F.3d 1082, 1087 (7th Cir. 2006). We must
uphold the decision to deny relief so long as it is “sup-
ported by reasonable, substantial, and probative evid-
ence on the record considered as a whole.” Chatta v.
10 Nos. 07-1993 & 07-3178
Mukasey, 523 F.3d 748, 751 (7th Cir. 2008); Mema v. Gonzales,
474 F.3d 412, 416 (7th Cir. 2007). We will overturn
the decision to deny relief “only if the record compels a
contrary result.” Mema, 474 F.3d at 416; see also Shmyhelskyy
v. Gonzales, 477 F.3d 474, 478-79 (7th Cir. 2007).
In order to establish his claim for asylum, Oryakhil bore
the burden of proving that he was unable or unwilling to
return to Afghanistan because of past persecution or a
well-founded fear of persecution, on account of his race,
religion, political opinion, nationality, or membership in
a particular social group. See Soumare v. Mukasey, 525
F.3d 547, 552 (7th Cir. 2008); Haxhiu, 519 F.3d at
690; Shmyhelskyy, 477 F.3d at 479; see also 8 U.S.C.
§ 1101(a)(42)(A); 8 C.F.R. § 1208.13(a). The IJ and BIA both
implicitly analyzed Oryakhil’s claim as one based on a
well-founded fear of future persecution rather than one
based on past persecution. Oryakhil has not yet been
attacked by the Taliban, but bases his claim on a fear
that he will be in danger if he returns to Afghanistan. We
therefore agree that the matter is more appropriately
analyzed as a claim based on a fear of future persecution.
Agbor v. Gonzales, 487 F.3d 499, 502 (7th Cir. 2007).
Because Oryakhil’s claim is based upon a well-founded
fear of future persecution, he also bore the burden of
proving that he cannot reasonably relocate to another
part of his home country to avoid persecution. See 8 C.F.R.
§§ 208.13(b)(2)(ii), 208.13(b)(3)(I) (“In cases in which the
applicant has not established past persecution, the ap-
plicant shall bear the burden of establishing that it would
not be reasonable for him or her to relocate, unless the
persecution is by a government or is government-spon-
sored.”); see also Song Wang v. Keisler, 505 F.3d 615, 622
(7th Cir. 2007); Agbor, 487 F.3d at 505; Rashiah v. Ashcroft,
Nos. 07-1993 & 07-3178 11
388 F.3d 1126, 1132 (7th Cir. 2004). The immigration
regulations contemplate two separate inquiries to deter-
mine whether an applicant could reasonably relocate
within his home country: (1) whether safe relocation is
possible, and if so, (2) whether it would be reasonable to
expect the applicant to safely relocate. See 8 C.F.R.
§§ 208.13(b)(2)(ii), 208.13(b)(3)(I); Mohamed v. Ashcroft, 396
F.3d 999, 1006 (8th Cir. 2005) (“Relocation must not only
be possible, it must also be reasonable.”); Gambashidze v.
Ashcroft, 381 F.3d 187, 192 (3d Cir. 2004) (“Thus the regula-
tion envisions a two-part inquiry: whether relocation
would be successful and whether it would be reasonable.”);
Knezevic v. Ashcroft, 367 F.3d 1206, 1214 (9th Cir. 2004)
(“Having determined that it would be safe for the
Knezevics to relocate to the Serb-held parts of
Bosnia-Herzegovina, we must examine the evidence as
to whether it would be reasonable to require them to do
so . . . .”); see also Das v. Gonzales, 219 F. App’x 543, 546
(7th Cir. 2007) (unpublished decision). We therefore ask
whether safe relocation was both (1) possible and
(2) reasonable for Oryakhil.
Neither the IJ, nor the BIA, explained how it would
be possible for Oryakhil to safely relocate within Afghani-
stan. In her oral decision, the IJ stated that Oryakhil never
told his military supervisor that he had been threatened
by the Taliban, or that he planned to flee the country. The
IJ found that Oryakhil “never sought to avail himself of
any form of protection from the military where he served.”
But this statement alone says nothing about whether
relocation through the military is possible for Oryakhil—it
merely states that Oryakhil did not attempt to relocate.
Because he did not attempt to pursue relocation through
the military, the IJ should have asked a counterfactual
12 Nos. 07-1993 & 07-3178
question: if Oryakhil returns to Afghanistan, re-enters
the Afghan military, and asks for a military relocation,
would the military honor his request? The IJ refrained
from asking or answering this question, and instead
penalized Oryakhil for his failure to ask for a military
relocation. Despite this defect in the IJ’s reasoning, the
BIA erroneously allowed the decision to stand.
From the record, we are not at all certain that a military
relocation is possible for Oryakhil. In fact, Oryakhil
presented ample evidence that military relocation would
be impossible. First, the IJ credited Oryakhil’s testimony
that he had not engaged in any fighting or combat activity
since his tenure in North Afghanistan in the early 1990s,
and the IJ acknowledged that this might make it difficult
for Oryakhil to be reassigned within the military. Second,
the IJ received testimony from Oryakhil that military
relocation is no longer an option for Oyakhil because he
deserted his post when he failed to report for duty at the
request of his commanding officer; Oryakhil elaborated
that he will be prosecuted and imprisoned for desertion
if he returns to his military post. The IJ dismissed this
point by improperly demanding corroborating evidence
from Oryakhil; however, Oryakhil’s testimony should
have sufficed because the IJ found that he was a
credible witness, and explicitly stated that corrobo-
rating evidence was “not necessary.” See Diallo v. Ashcroft,
381 F.3d 687, 695 (7th Cir. 2004) (“Diallo’s testimony, if
credible . . . was ‘sufficient to sustain the burden of proof
without corroboration.’ ” (quoting 8 C.F.R. § 208.13(a))).
Once the IJ established that Oryakhil was credible, it
was improper for her to credit certain portions of his
testimony and discount others without further explana-
tion as to why Oryakhil’s testimony was unacceptable and
Nos. 07-1993 & 07-3178 13
why corroborating evidence was required. See Tolosa v.
Ashcroft, 384 F.3d 906, 910 (7th Cir. 2004); cf. Soumare,
525 F.3d at 552 (“Before an IJ may deny a claim for insuf-
ficient corroboration, the IJ must (1) make an explicit
credibility finding; (2) explain why it is reasonable to
expect additional corroboration; and (3) explain why
the alien’s explanation for not producing that corrobora-
tion is inadequate.” (citing Tandia v. Gonzales, 487 F.3d
1048, 1054-55 (7th Cir. 2007); Ikama-Obambi v. Gonzales,
470 F.3d 720, 725 (7th Cir. 2006))).
The only evidence noted by the IJ that potentially sup-
ports the possibility of military relocation is the fact that
the military provided housing for Oryakhil in North
Afghanistan from 1992 to 1994. But this evidence is hardly
“substantial.” Given the tumultuous social and political
landscape of Afghanistan over the last seven years
since the fall of the Taliban regime, the conditions that
existed nearly a decade before the U.N. invasion of Af-
ghanistan are not even probative of the military’s present
capabilities. And the military’s current state is well-docu-
mented in the evidence presented by Oryakhil: the cred-
ible testimony of Oryakhil and Carlin, as well as the
news stories and country reports admitted into the rec-
ord, consistently reveal that the Afghan military has very
few barracks and little control over the region outside of
Kabul and that the Afghan military is not outfitted with
equipment or housed in barracks comparable to their
American and U.N. counterparts.
Moreover, we do not see substantial evidence that
Oryakhil could achieve a safe relocation through the
military. The credible testimony from Oryakhil and
corroborating evidence in the record shows that the Taliban
insurgency is stronger outside of Kabul, and that the
14 Nos. 07-1993 & 07-3178
Afghan military has less control over the surrounding
areas. The IJ admitted that the Afghan government
could not “control the Taliban, [and is] unable to control
roving bands of individuals who may be associated with
the Taliban, or acting under their auspices.” The IJ equivo-
cally stated that through the military, Oryakhil could
receive “some sort of relative safety.” This ambivalence in
the IJ’s tone is emblematic of the fact that the evidence is
simply insubstantial to support the conclusion that safe
relocation through the Afghan military is possible for
Oryakhil.
Finally, substantial evidence does not support the
immigration courts’ conclusion that safe relocation would
have been reasonable for Oryakhil. The immigration
regulations set out several factors in determining whether
a relocation is reasonable, including “any ongoing civil
strife within the country; administrative, economic, or
judicial infrastructure; geographical limitations; and
social and cultural constraints, such as age, gender, health,
and social and familial ties.” 8 C.F.R. § 208.13(b)(3). The
BIA concluded that the IJ had considered these factors.
However, the record does not reflect that conclusion. The
IJ conceded that Oryakhil might face harm outside of
Kabul, but dismissed this fact because she believed that
any harm suffered outside of Kabul would not be
“persecutive in nature.” Not only does this seem strikingly
inconsistent with the IJ’s recognition that the Taliban
insurgency is stronger outside of Kabul, but this finding
ignores the regulation’s direction that an IJ consider
“ongoing civil strife” in determining whether relocation
is reasonable. See id.; Das, 219 F. App’x at 546 (unpublished
decision).
Oryakhil also testified credibly that his family resided
in Kabul. Carlin testified to the same, and added that if
Nos. 07-1993 & 07-3178 15
Oryakhil moved outside of his family home, he would be
viewed with skepticism and further targeted by the
Taliban. But the IJ ignored these “familial ties” because
she found that Oryakhil had lived away from his family
in North Afghanistan from 1992 to 1994, even though the
record makes evident that Oryakhil has not lived away
from his family or participated in combat in nearly fifteen
years—a span that has seen the rise and fall of the
Mujahideen, the rise and fall of the Taliban, the assumption
of control by the Karzai government, and the reinvigora-
tion of Taliban insurgents. The IJ even acknowledged that
Oryakhil’s testimony that he would place his family in
greater peril by seeking protection from the Afghan
government was “a credible statement, in light of country
conditions.” To expect Oryakhil, after several years of
teaching, to revert to a soldier’s lifestyle in a hostile,
conflict-ridden region of Afghanistan—and to place his
family in jeopardy by doing so—does not strike us as
“reasonable.”
Based on the evidence in the administrative record,
we are compelled to disagree with the BIA and the IJ.
Substantial evidence simply does not demonstrate that it
would be either possible or reasonable for Oryakhil to
relocate within Afghanistan. We therefore will remand
the case for further proceedings. On remand, Oryakhil
will have an opportunity to introduce the letters from
his father and his commanding officer that he appended
to his motion to reopen. These submissions may further
bolster Oryakhil’s claims. See BinRashed v. Gonzales, 502
F.3d 666, 673 (7th Cir. 2007); Adekpe v. Gonzales, 480 F.3d
525, 532-33 (7th Cir. 2007). Therefore, we need not con-
sider his petition for review of the motion to reopen
because it is moot.
16 Nos. 07-1993 & 07-3178
III. CONCLUSION
We GRANT the petition for review of the order of re-
moval, VACATE the order of removal, and REMAND for
further proceedings consistent with this opinion. We
DISMISS the petition for review of the motion to reopen as
moot.
USCA-02-C-0072—6-17-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001097/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1684
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ABRAHAM E. KILLINGSWORTH,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06 CR 30140—G. Patrick Murphy, Judge.
____________
ARGUED SEPTEMBER 5, 2007—DECIDED NOVEMBER 13, 2007
____________
Before EASTERBROOK, Chief Judge, and WOOD and
EVANS, Circuit Judges.
EVANS, Circuit Judge. The district court granted
Abraham Killingsworth’s motion to dismiss an indict-
ment against him with prejudice because his rights
under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were
violated. The government conceded the violation but
argued that the dismissal should be without prejudice. The
court sided with Killingsworth and entered the dismissal
order with prejudice. Today we resolve the government’s
appeal of that decision.
Although the “facts” in this case have yet to be tested
at trial, the government claims that the following events
form the basis of charges it filed against Killingsworth.
2 No. 07-1684
On September 25, 2006, Killingsworth met with a fellow
named Ball, hoping to buy two ounces of cocaine. After
entering Ball’s vehicle to complete the transaction,
Killingsworth realized that Ball had more cocaine with
him than Killingsworth was expecting to purchase.
Killingsworth seized this opportunity and decided to rob
Ball by displaying a chrome .38 caliber revolver and taking
the package of cocaine from Ball. Killingsworth then left
Ball’s vehicle and got into another vehicle, driven by an
unnamed individual. Ball proceeded to flag down two
Venice, Illinois, police officers who were on routine
patrol in the area. Ball told the officers that he had just
been robbed and pointed to the vehicle that Killingsworth
had entered. The police started to follow the car, but
Killingsworth got out of it and started to flee on foot. While
running, he dropped the package of cocaine and the gun,
both of which the officers retrieved after apprehending
him.
The federal government, acting through the DEA, got
involved in the case, and a criminal complaint was filed
in the Southern District of Illinois on September 27, 2006,
charging Killingsworth with one count of possession with
intent to distribute over 500 grams of cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and one count of
possession of a firearm in furtherance of a drug-trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A). Killingsworth
appeared before Magistrate Judge Proud on September 28,
2006, and entered a plea of not guilty. Killingsworth
later waived his rights to preliminary and detention
hearings on October 2, 2006, in an appearance before
Magistrate Judge Wilkerson. On October 19, 2006, a grand
jury indicted Killingsworth on the two counts charged in
the complaint. A third count seeking to forfeit the fire-
arm involved in the offense was added on. In mid-October,
Killingsworth apparently agreed to cooperate with the
government. He signed a proffer agreement on October 26,
No. 07-1684 3
2006. On November 1, 2006, the government forwarded
discovery materials to Killingsworth’s counsel.
Obvious from this chronology—and for reasons still
unclear to us—an arraignment on the indictment was
never scheduled. As a result, Killingsworth did not re-
ceive a trial within the time period required by the
Speedy Trial Act. On January 4, 2007 (by the govern-
ment’s count,1 3 days after the speedy trial clock had
run), Killingsworth filed a motion to dismiss the indict-
ment with prejudice.2 The government, as we said, con-
ceded that the Speedy Trial Act was violated but asked
for dismissal without prejudice.
The district court held a hearing on the motion to
dismiss. During the hearing, the government offered two
explanations for the violation. First, it stated that, histori-
cally, it had never had to request an arraignment in a
criminal case when an individual had been indicted, even
when a complaint had been filed first; the magistrate
judge had always provided a date. Second, the govern-
ment claimed that it had contacted the magistrate
judge’s chambers at least twice within the speedy trial
time to inquire about an arraignment but had received
no reply.
1
The government bases its calculations on an exclusion of
3 days from October 20 to 23 while a motion was pending.
Whether the period of delay was 3 or 6 days is immaterial to
our discussion.
2
Once a motion like this is filed, the speedy trial clock stops
ticking. Therefore, any time that passes before the motion is
resolved is excluded. But that said, we find it disturbing that
the hearing on the motion—a rather simple one, we think—was
not conducted until February 26, 2007, a full 54 days after it
was filed. We hope the judges—district and magistrate—in the
Southern District of Illinois will take preventive action so this
sort of delay doesn’t repeat itself in other cases.
4 No. 07-1684
In response, the district judge tried to determine exactly
what happened by taking a recess to speak to the magis-
trate judge and his clerk. When the judge returned, he
informed the parties that the clerk did not recall any
messages from the government and that “there is no way
really to go behind that and find out what happened.”
The judge then turned to the issue of whether to dismiss
the indictment with or without prejudice. He noted that
the case was a serious one and that if he dismissed it
with prejudice, Killingsworth might walk away without
punishment if the state did not bring charges.3 He also
stated that it was impossible to find out whether the
court or the government was at fault for the violation.
Ultimately, the court sided with Killingsworth, emphasiz-
ing that “whether the fault lies with the judicial side of
the matter or whether it involves the fault of the prosecu-
tor is quite beside the point” because Killingsworth him-
self was not responsible for the delay.
On appeal, the government alleges error in the district
court’s application of the factors specified in the Speedy
Trial Act. In determining whether to dismiss a case with or
without prejudice, the Act requires the district judge to
consider (1) the seriousness of the offense, (2) the facts and
circumstances which led to the dismissal, and (3) the
impact of reprosecution on the administration of the
Speedy Trial Act and on the administration of justice. 18
U.S.C. § 3162(a)(2).
We review the district court’s dismissal with prejudice
for an abuse of discretion. United States v. Taylor, 487 U.S.
326, 335, 108 S. Ct. 2413, 2419 (1988); United States v.
Arango, 879 F.2d 1501, 1508 (7th Cir. 1989). However,
3
At the time of oral argument, the state still had not brought
charges.
No. 07-1684 5
because the Speedy Trial Act requires the court to con-
sider explicit factors when deciding whether to dismiss
with or without prejudice, it confines the district court’s
discretion more narrowly than in cases where no factors
exist. Taylor, 487 U.S. at 344, 108 S. Ct. at 2423. As a
result, “[a]lthough the role of an appellate court is not to
substitute its judgment for that of the trial court, review
must serve to ensure that the purposes of the Act and
the legislative compromise it reflects are given effect.” Id.
at 336, 108 S. Ct. at 2419. We must “undertake more
substantive scrutiny to ensure that the judgment is
supported in terms of the factors identified in the statute.”
Id. at 337, 108 S. Ct. at 2420. We now turn to that task.
The first factor, the seriousness of the offense, re-
quired little consideration because Killingsworth correctly
conceded that it militated for a dismissal without preju-
dice. We think the district court undervalued this factor
by stating that while the offense was serious and in-
volved a gun, there was no murder or injury, as there had
been in United States v. Fountain, 840 F.2d 509 (7th Cir.
1988). In Taylor, the Supreme Court found an abuse of
discretion where, among other things, the district court
failed to explain how the seriousness of the offense fac-
tored into its decision to dismiss with prejudice. 487 U.S.
at 344, 108 S. Ct. at 2423. Neglecting to find that the
first factor favored dismissal without prejudice, the dis-
trict court committed a similar error.
Regarding the second factor, the facts and circumstances
leading to dismissal, the court found that “[t]he facts
and circumstances of the case which lead to the dismissal
could be that there is a hole here in the Court’s adminis-
trative side of things.” Indeed, the judge stated that he
would be talking to the magistrates to determine if there
was a communication problem and trusted that the
government would investigate the matter as well. How-
ever, the judge stressed that, whether the court or the
6 No. 07-1684
government was to blame, Killingsworth himself did
nothing wrong. He concluded that this was “not a case
where [the defendant] was trying to sit on or hide or
ambush somebody.”
We think that the district court overemphasized
Killingsworth’s conduct and gave insufficient weight to
the fact that the court itself may have been at fault for
failing to move the case along. In addition, Killingsworth
conceded that the government did not intentionally cause
the delay and that he suffered no prejudice. In similar
circumstances, we have found that a dismissal without
prejudice was appropriate. See Arango, 879 F.2d at 1508;
Fountain, 840 F.2d at 512-13; United States v. Hawthorne,
705 F.2d 258, 261 (7th Cir. 1983). Moreover, a trial in
this case was probably never contemplated by the parties,4
and the delay due to the inadvertent violation was rela-
tively brief. While we agree with the district court that
the government should take measures to prevent repeti-
tions of this kind, the absence of bad faith by the govern-
ment and the lack of prejudice to the defendant nudge
this factor in favor of dismissal without prejudice.
Finally, the district court considered the third factor, the
impact of a reprosecution on the administration of the
Act and on the administration of justice. The court empha-
sized that “the reason we have a statute is to enforce
the Defendant’s right to a Speedy Trial, and that’s the
whole point.” The judge overlooked the fact that the
violation was already being sanctioned by a dismissal. As
Taylor explained, “the [Speedy Trial] Act does not require
dismissal with prejudice for every violation. Dismissal
without prejudice is not a toothless sanction.” 487 U.S.
at 342, 108 S. Ct. at 2422. Putting it another way, the
4
We make this inference because Killingsworth signed a proffer
agreement with the government shortly after the indictment.
No. 07-1684 7
fact that a violation occurred does not alone tip the scales
in favor of a dismissal with prejudice. On the contrary,
considering the seriousness of the offense, minor delay,
and lack of bad faith shown (or even alleged) in this case,
“the purpose of the Act would not be served by requir-
ing the court to impose the maximum sanction for a
minimum violation.” Hawthorne, 705 F.2d at 261 (citing
United States v. Regilio, 669 F.2d 1169, 1172-73 (7th Cir.
1981)). The third factor therefore also should have
favored dismissal without prejudice.
For the court, the “bottom line” was that Killingsworth
was “cooperating, trying to get an arraignment, sitting
in jail, [and] didn’t get it.” We appreciate the court’s
attention to Killingsworth’s perspective, but whether a
defendant is detained pending trial is not an explicit
factor of § 3162(a)(2), much less its primary focus. If the
fact that a defendant is detained during the period of
delay were to dictate the nature of the dismissal, all
pretrial detainees whose rights were violated under the
Speedy Trial Act would receive a dismissal with prejudice.
This would render Congress’s designation of two types
of dismissal largely irrelevant.
In sum, we find that insufficient weight was given to the
seriousness of the offense, the lack of bad faith on the
part of the government, and the absence of prejudice to
Killingsworth. Because its decision to dismiss the in-
dictment with prejudice was not supported in terms of the
factors identified in the statute, we find that the court
abused its discretion. Now certainly, if the charges
against Killingsworth were reinstated after a dismissal
without prejudice, the district judge or magistrate at the
new arraignment could properly consider that the defen-
dant had spent time in custody on the old indictment. This
fact could certainly move the court to consider releasing
the defendant on bail while the new case went forward.
We are not saying that the court must do that, but it would
8 No. 07-1684
be wise to take the prior custody into consideration when
considering new terms for the defendant’s pretrial situa-
tion.
For these reasons, we REVERSE the judgment of the
district court and REMAND for further proceedings consis-
tent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-13-07 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001100/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3673
XIU QIN ZHENG,
Petitioner,
v.
MICHAEL B. MUKASEY,
Attorney General of the
United States,
Respondent.
__________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-847-340
__________
ON MOTION FOR STAY OF REMOVAL
__________
NOVEMBER 9, 2007*
__________
Before COFFEY, RIPPLE and WILLIAMS, Circuit Judges.
PER CURIAM. The petitioner, Xiu Qin Zheng, seeks a stay
of his removal to China pending review in this court. In 2001, Mr.
*
This opinion is being released initially in typescript form.
No. 07-3673 Page 2
Zheng applied for asylum before an immigration judge (“IJ”). The
IJ found significant inconsistencies in Mr. Zheng’s testimony and
therefore discredited his testimony and denied his asylum
application. In May 2002, the Board of Immigration Appeals (“BIA”)
dismissed Mr. Zheng’s appeal of the IJ’s decision. The present
motion does not articulate the grounds upon which Mr. Zheng
originally applied for asylum and does not address what
inconsistencies the IJ found in his testimony.
Five years later, Mr. Zheng moved to reopen his asylum
proceedings. First, he submitted that he had received ineffective
assistance from his former attorney who had represented him before
the IJ and the BIA. The BIA rejected this argument; it noted that
his request was untimely and that he provided no reason to invoke
the doctrine of equitable tolling. Second, Mr. Zheng sought to
reopen his asylum proceedings based on changed circumstances. He
maintained that authorities in his hometown recently had carried
out harsh investigations of underground Catholic churches and had
arrested his wife in 2006. At that time, he alleges, she was
pressured to reveal his whereabouts; in addition, she was given a
notice stating that Mr. Zheng would be punished upon his return to
China because he had joined an underground church. The BIA also
refused to reopen Mr. Zheng’s proceedings based on this ground. It
noted that the IJ already had found incredible his testimony about
religious persecution and persecution based on China’s family
planning policies. Finally the BIA concluded that Mr. Zheng had
failed to demonstrate that he would be harmed upon his return to
China due to his violation of Chinese exit laws.
Mr. Zheng now petitions for review of both the BIA’s
dismissal of his original asylum claim and the BIA’s subsequent
denial of his motion to reopen those proceedings.
As an initial matter, we note that the petition for review is
timely only as to the BIA’s denial of Mr. Zheng’s motion to reopen.
This petition for review was filed over five years after the BIA
No. 07-3673 Page 3
dismissed the appeal stemming from Mr. Zheng’s original asylum
application, well-beyond the 30-day deadline to file a petition for
review. See 8 U.S.C. § 1252(b)(1); Asere v. Gonzales, 439 F.3d 378,
380 (7th Cir. 2006).
A petitioner seeking a stay of removal pending judicial review
must demonstrate: (1) a likelihood of success on the merits; (2)
irreparable harm if a stay is not granted; (3) that the potential harm
the petitioner faces outweighs the harm to the Government; and (4)
that granting the stay would serve the public interest. Sofinet v.
INS, 188 F.3d 703, 706 (7th Cir. 1999). If a motion to stay removal
does not set forth information needed for this court to adjudicate
properly the matter, it will be denied. See Koutcher v. Gonzales, 494
F.3d 1133, 1134 (7th Cir. 2007).
Given these requirements, we must deny this motion. In
these papers, the petitioner simply makes an inadequate case. The
motion, which is only one sentence long with an attached two-page
affidavit from counsel, provides insufficient information for this
court to adjudicate the matter. The motion fails to state why Mr.
Zheng believes that his former attorney was ineffective or the
resulting prejudice that he suffered. It also makes no mention of
what circumstances have changed in China or how these changes
might affect a second asylum application. The motion merely
contends that Mr. Zheng is likely to succeed on the merits “due to
egregious errors of Law and Fact” made by the IJ and BIA, but fails
to articulate what these errors may be or during what stage of the
proceedings these errors occurred. Without this information, we
cannot assess the likelihood that Mr. Zheng could succeed in
demonstrating that the BIA erred by refusing to reopen his
proceedings. See Koutcher, 494 F.3d at 1135.
MOTION DENIED | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001136/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4090
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DIANNE KHAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 CR 42—Charles N. Clevert, Jr., Judge.
____________
ARGUED SEPTEMBER 12, 2007—DECIDED NOVEMBER 1, 2007
____________
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. Defendant-Appellant, Dianne
Khan, appeals her conviction under 18 U.S.C. § 1001(a)(1),
which punishes knowingly and willfully concealing a
material fact from federal officials, in this case the De-
partment of Housing and Urban Development (“HUD”).
During her trial, Khan’s attorney attempted to elicit a
statement from a government agent regarding another
government agent’s statement during an investigatory
interview. The government objected on hearsay grounds
and the district court sustained the government’s objec-
tion, citing Federal Rule of Evidence 403. Khan now
appeals the district court’s refusal to admit the question.
Finding no error, we affirm.
2 No. 06-4090
I. Background
Sometime in 1999, Dianne Khan became eligible for
Section 8 housing assistance by virtue of physical and
mental disability. She had previously resided at Forest
Tower / Metro Apartments in Milwaukee, Wisconsin (the
“Forest Tower address”) and she decided to maintain
this residence with the assistance of a HUD subsidy. To
obtain the subsidy, Khan signed a HUD-approved form
lease, which required, among other things, that “The
tenant agrees to reside in this unit, and agrees that the
unit shall be the tenant’s and his or her family’s only
place of residence.” In the coming years, Khan periodically
recertified the terms of this initial lease. On January 14,
2003, the form asked “Will any of the above household
members live anywhere except in the apartment?” Khan
responded that she would “live a couple days at another
address when I was looking for work and [needed] to
have phone calls for jobs.” In addition, Khan submitted
at least three required reports—in 1998, 1999, and 2002—
to alert HUD that a member of the household was mov-
ing out. Khan received her federal assistance until the
current case began in September 2004.
This case stems in many ways from Khan’s marriage
to a man named Aftab Umer in July 2002. On September
1, 2002, Umer and Khan signed a lease together for a
different apartment at 2327 West Michigan Avenue in
Milwaukee (“West Michigan Avenue address”). Umer
was not a citizen of the United States and after their
marriage Khan filed a petition for alien relative to enable
Umer to naturalize. On the form, Khan listed the West
Michigan address as her primary address; her Forest
Tower address was listed as a “previous” address. Because
Khan had married foreign-born men in the past, her
marriage aroused the suspicion of Immigration and
Customs Enforcement (“ICE”) and an investigation ensued.
No. 06-4090 3
Agent Jeffrey Stillings from the ICE spearheaded the
investigation. He began with a visit to the West Michigan
Avenue address but found no one there. The next day he
visited the Forest Tower address unannounced and found
Khan at home. During the course of their conversation,
Khan stated that she maintained two apartments and
was only rarely at her Forest Tower address. The next
day, Agent Stillings visited the West Michigan Avenue
address and, with Khan and Umer’s permission, looked
around. Framed photographs of the couple and female
clothes indicated that Khan was not unfamiliar with the
apartment.
On September 28, 2004, Agent Stillings formally inter-
viewed Khan in the presence of Umer’s attorney. Khan
gave a sworn and written statement, freely admitting
that she lived at the West Michigan Avenue address. She
stated that she had only stayed at the Forest Tower
apartment four or five times over the last two years. Also
present in the interview was Agent James Siwek who,
unbeknownst to Khan, was from HUD’s Office of the
Inspector General. Agent Stillings had grown to suspect
fraud against HUD based on his prior questioning of
Khan, so he invited Agent Siwek to join the investigation.
To that end, Agent Siwek attended the interview, but
kept mum regarding his motive for attending. When Agent
Siwek revealed his identity to Khan after she signed the
written statement, Khan ended the interview.
The central issue at trial was what to make of the
abrupt end to the interview after Agent Siwek revealed
that he was from HUD. The government pointed to this
evidence as proof that Khan knew the illegality of main-
taining two residences. Khan, on the other hand, main-
tained that Agent Stillings had threatened her with
prosecution for a HUD violation if she did not roll over on
the marriage fraud charges and justified the abrupt
termination on these grounds.
4 No. 06-4090
At trial, Agent Siwek was the first witness. He testified
on direct that after he revealed his identity, Khan termi-
nated the interview. On cross, Khan’s attorney asked
three questions in order to undo the inference of knowl-
edge. First, Khan’s attorney asked whether Khan termi-
nated the interview because she had been given a choice
between a marriage fraud prosecution or a HUD violation.
Agent Siwek said he did not know why Khan terminated
the interview. Second, Khan’s attorney asked whether
Agent Siwek had “hear[d] anything that would suggest
that [Khan] was being threatened with the HUD violation
prosecution because she wouldn’t admit to marriage
fraud.” Testimony of Agent Siwek, vol. 1, at 28 (June 19,
2006). Agent Siwek said he had not. Finally, Khan’s
attorney started to ask whether Agent Stillings had
said during the interview that if Khan admitted to mar-
riage fraud, the government would not pursue a HUD
violation. As soon as it became clear that Khan’s attorney
was questioning Agent Siwek about Agent Stillings’
statement, the government objected on hearsay grounds.
Khan’s attorney argued that the statement was meant to
show Khan’s state of mind and was not offered for the
truth of the matter asserted. However, the district court
sustained the objection. The court reasoned that the
question moved the questioning towards a “slippery slope.”
Testimony of Agent Siwek, vol. 1, at 30. The district
court also recognized that Umer’s attorney would later
testify as to the same matter and refused to admit the
question, stating that “basically, my ruling is a 403 deci-
sion.”
Later in the trial, Agent Stillings testified and verified
Agent Siwek’s version of events. Agent Stillings said that
he had mentioned something about the marriage-fraud
investigation after revealing his identity. On cross, Khan’s
attorney asked whether he had threatened Khan with a
HUD prosecution if she did not admit to marriage fraud.
No. 06-4090 5
Agent Stillings said that he did not recall using a plea
bargain tactic with Khan and that he did not have the
power to use such a tactic anyway. Testimony of Agent
Stillings, at 41 (June 19, 2006). On June 20, 2006, the
jury returned a guilty verdict. On October 6, 2006, the
district court sentenced Khan to a five-year term of
probation and restitution in the amount of $13,912. She
now appeals.
II. Discussion
On appeal, Khan challenges the district court’s decision
to halt her attorney’s questioning of Agent Siwek regard-
ing Agent Stillings’ alleged statement during the inter-
view, claiming that the question was admissible either
as non-hearsay or under the rule of completeness. Khan
further argues that the question’s exclusion affected
her rights under the Confrontation Clause. It is unneces-
sary to decide whether the question was otherwise admis-
sible because, even assuming that it was, the district court
did not abuse its discretion in excluding it under Federal
Rule of Evidence 403. In addition, the district court’s
limitation on Khan’s questioning of Agent Siwek did not
affect her rights under the Confrontation Clause.
First, the district court did not abuse its discretion in
excluding Khan’s third question. Rule 403 codifies the
district court’s broad discretion to control the admission of
evidence. In defining this discretion, Rule 403 instructs
the court to balance the probative value of the evidence
against “the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or . . . considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.” FED. R. EVID. 403. This Court
reviews a district court’s balancing under Rule 403 for
an abuse of discretion, which occurs when “no reasonable
person could take the view adopted by the trial court.”
6 No. 06-4090
United States v. Hughes, 970 F.2d 227, 232 (7th Cir. 1992)
(citing United States v. Tipton, 964 F.2d 650, 654 (7th Cir.
1992)).
In the case at bar, regardless whether the evidence
was admissible as non-hearsay or under the rule of
completeness, the district court did not abuse its discretion
in excluding it. In the first place, as the district court
reasoned, the continued questioning on marriage fraud
was likely to confuse the issues. Khan’s questioning
would have focused the jury’s attention on the suspected
marriage fraud, which was not an issue at trial. In addi-
tion, the blocked question was cumulative and thus did
not add anything to the line of questioning. Agent Siwek
had just testified that he had not heard anything about
a pending HUD prosecution that would follow if Khan
failed to cooperate. The court could reasonably have
concluded that the answer to the second question covered
sufficiently similar ground as the answer to the third. As
a result, the district court did not abuse its discretion in
sustaining the government’s objection.
Second, Khan argues that the refusal to admit the
question violated her rights under the Confrontation
Clause, as an unreasonable limitation on cross-examina-
tion. As a general matter, this Court reviews a district
court’s limits on the extent of cross-examination for
an abuse of discretion. United States v. Smith, 454 F.3d
707, 714 (7th Cir. 2006). But where the limits affect a
criminal defendant’s right to confront the witnesses who
testify against him, this Court reviews the limitation
de novo. Id. The Confrontation Clause reflects the be-
lief that adversarial proceedings are essential to the truth-
seeking function of the criminal trial. See Pennsylvania v.
Ritchie, 480 U.S. 39, 51 (1989). Thus, a trial court’s
limits on a defendant’s ability to cross-examine the gov-
ernment’s witnesses can offend the Confrontation Clause
by insulating an inculpatory version of events that would
No. 06-4090 7
otherwise not withstand a defendant’s efforts to “show
that a witness is biased, or that the testimony is exagger-
ated or unbelievable.” Id. at 51-52; see also Smith, 454
F.3d at 714. However, not all limitations foul up the
adversarial process. This Court first examines whether
the limit foreclosed an opportunity to expose biased or
false testimony, thereby affecting the “core functions” of
the Confrontation Clause. If the “core functions” of the
Confrontation Clause remain intact, this Court ensures
merely that the district court’s exercise of its “wide discre-
tion” in limiting cross-examination was not abusive. Id.
In this case, the district court did not limit cross-exami-
nation so as to affect the “core functions” of the Confronta-
tion Clause. Khan had the opportunity to question Agent
Siwek regarding the September 2004 interview. The line
of questioning leading up to the challenged phrase cap-
tured the question that Khan sought to ask. Thus, the
limits imposed by the district court did not foreclose
an opportunity to develop an exculpatory fact; they
simply did not let Khan’s attorney pursue a redundant
line of questioning. Smith, 454 F.3d at 714 (“This limit on
cross-examination did not deny Smith the opportunity
to establish that Carter harbored a motive to lie; rather
it simply limited his ability to add extra detail to that
motive.”). Because the exclusion of this question did not
impact the accuracy of Khan’s trial, it did not affect her
rights under the Confrontation Clause. In addition,
because the excluded question was cumulative of questions
already asked and answered, the district court did not
abuse its discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM both the district
court’s decision to exclude the question posed by Khan’s
attorney and, in turn, Kahn’s conviction.
8 No. 06-4090
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-1-07 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001742/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 8, 2008
Decided June 4, 2008
Before
JOHN L. COFFEY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐3020
MUHAMMAD AZHAR SAEED, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A76‐773‐833
MICHAEL B. MUKASEY,
Attorney General of the United States,
Respondent.
ORDER
Muhammad Azhar Saeed, a citizen of Pakistan who overstayed his visitor visa,
moved to continue his removal proceedings while he pursued an administrative appeal
from the denial of his petition for an immigrant visa. The immigration judge denied his
motion, and the Board of Immigration Appeals affirmed. Saeed now petitions this court for
review. We dismiss Saeed’s petition for lack of jurisdiction.
No. 07‐3020 Page 2
Saeed entered the United States in October 1997 and was authorized to remain until
April 1998. He did not leave, however, and in April 2003 he was served with a Notice to
Appear for removal proceedings. At his first hearing in May 2003, Saeed conceded the
charge against him—that he was in the United States without authorization—but asked for
a continuance because he was in the process of pursuing a labor certification and
adjustment of status under section 245(i) of the Immigration and Nationality Act (“INA”).
Section 245(i) allowed certain aliens who entered the United States without authorization or
overstayed their visas to seek adjustment of status by paying a penalty and filing a petition
before April 30, 2001. See 8 U.S.C. § 1255(i)(1); Hadayat v. Gonzales, 458 F.3d 659, 662 (7th
Cir. 2006). The immigration judge (“IJ”) granted a continuance. At the next hearing, in
January 2004, the IJ again granted Saeed a continuance because he was awaiting approval of
his labor certification. In September 2004 Saeed told the IJ that his labor certification had
been approved and that he had filed a Form I‐140 petition for an immigrant visa. The IJ
continued the proceedings once more, giving Saeed almost one year to allow his visa
petition to be processed.
At the final hearing in August 2005, Saeed informed the IJ that his visa petition had
been denied. He asked, though, for yet another continuance to allow his appeal from that
denial to proceed in the Board of Immigration Appeals (“BIA”). But the IJ denied his
motion, entered a conditional order of removal, and gave Saeed until September 2005 to
voluntarily depart. The IJ explained that he already had granted Saeed three continuances
that delayed the removal proceedings for more than two years. Those continuances, the IJ
reasoned, distinguished Saeed’s case from Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), in
which an IJ, without explanation, had refused to continue the removal proceedings even
though the government had not acted on the petitioner’s application for a labor certification.
In this case, the IJ continued, Saeed’s visa petition already had been denied and thus Saeed
no longer met the statutory criteria to adjust his status.
The BIA rejected Saeed’s appeal from the IJ’s decision. The BIA held that the IJ had
given a “reasoned basis” for denying Saeed’s motion to continue. In particular, the BIA
reasoned, the IJ’s uncertainty about whether Saeed would ever successfully establish his
eligibility for adjustment of status given the denial of his visa petition was a “valid
discretionary” consideration. The BIA also concluded that the IJ had correctly applied
Subhan by providing “a valid, reasoned basis for his denial of” Saeed’s motion.
In his petition for review, Saeed argues that the immigration courts erred in
concluding that he did not establish good cause to continue the removal proceedings. Saeed
insists that he is still eligible to adjust his status because, he says, the door is not completely
closed on his visa petition so long as his appeal from its denial remains pending, which it
does even now. Thus, Saeed contends, the removal order contravenes Congress’s intent to
No. 07‐3020 Page 3
provide through INA § 245(i) a means for some aliens who overstayed their visas to adjust
their status without leaving the country. Saeed, though, is making a merits argument that
ignores the limits of our jurisdiction in immigration matters. Our recent decisions make
plain that we do not have jurisdiction to review the denial of a motion to continue unless by
denying the continuance the IJ “effectively nullified the statutory opportunity to adjust
status” without giving a reason consistent with the INA provision governing adjustment.
Ali v. Gonzales, 502 F.3d 659, 660‐61 (7th Cir. 2007); see Wood v. Mukasey, 516 F.3d 564, 568
(7th Cir. 2008); Benslimane v. Gonzales, 430 F.3d 828, 831‐32 (7th Cir. 2005); Subhan, 383 F.3d
at 595.
The narrow exception allowing us to review a denial of a motion to continue does
not apply here. The BIA properly concluded that the IJ “provided a valid, reasoned basis”
for denying the continuance when he explained that he already had granted three
continuances extending the removal proceedings for more than two years and that the
denial of Saeed’s visa petition meant that Saeed no longer met the criteria for adjustment of
status. See Ali, 502 F.3d at 664‐65 (holding that denial of citizenship application filed by
petitioner’s sponsoring relative was legitimate reason for denying continuance of
petitioner’s removal proceedings); Subhan, 383 F.3d at 594 (suggesting that IJ’s belief that
“an illegal alien should not be allowed to delay his removal beyond a year” would be
legitimate reason for denying continuance). By providing these reasons, the BIA correctly
held, the IJ complied with our holding in Subhan that IJs must give a reason consistent with
§ 245(i) when refusing to postpone removal proceedings for aliens seeking adjustment of
status under that provision. See Ali, 502 F.3d at 663; Hadayat, 458 F.3d at 663.
For the foregoing reasons, we DISMISS Saeed’s petition for review. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001931/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 08-2161
JOSE GREGORIO ALTAMIRANDA VALE,
Petitioner-Appellee,
v.
MARIA JOSE FIGUERA AVILA,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CV 1246—Joe Billy McDade, Judge.
____________
ARGUED JULY 16, 2008—DECIDED JULY 17, 2008Œ
____________
Before POSNER, FLAUM, and KANNE, Circuit Judges.
POSNER, Circuit Judge. The petitioner, Vale, seeking
the return of his children to Venezuela, filed suit in fed-
eral district court against their mother—Avila, his ex-
wife—under the International Child Abduction
Remedies Act, 42 U.S.C. §§ 11601 et seq. The Act, imple-
menting the Hague Convention on the Civil Aspects of
International Child Abduction, T.I.A.S. No. 11,670, 1343
U.N.T.S. 89 (Oct. 25, 1980) (which both the United States
and Venezuela have signed), entitles a person whose
Œ
With notation that opinion would follow.
2 No. 08-2161
child has been wrongfully removed to the United States
(usually by a parent) in violation of the Hague Convention
to sue the wrongdoer in federal court for the return of the
child. 42 U.S.C. § 11603(b). The suit is begun by the filing
of a petition rather than a complaint. 42 U.S.C. § 11603(b).
Wrongful removal is defined as removal “in breach of
rights of custody” vested in the party complaining of the
removal. Hague Convention, Art. 3(a). These rights include
“rights relating to the care of the person of the child and,
in particular, the right to determine the child’s place
of residence.” Id., Art. 5(a). The Convention also
recognizes “rights of access,” but they are limited to “the
right to take a child for a limited period of time to a
place other than the child’s habitual residence,” id.,
Art 5(b), and the violation of them is not deemed
wrongful removal. Vale prevailed in the district court,
which ordered the return of the children to Venezuela.
We stayed the district court’s order pending our decision
of Avila’s appeal.
The Convention seeks to discourage abductions by
parents who either having lost, or expecting to lose, a
custody battle remove children to a country whose
courts are more likely to side with that parent. Kijowska v.
Haines, 463 F.3d 583, 586 (7th Cir. 2006); Blondin v. Dubois,
189 F.3d 240, 246 (2d Cir. 1999). To prevent such forum
shopping, the Convention requires that the determination
of whether the child’s removal was wrongful be made
under the laws of the country in which the child has his or
her “habitual residence.” Hague Convention, Art. 3. The
determination of “habitual residence” is to be based on the
everyday meaning of these words rather than on the legal
meaning that a particular jurisdiction attaches to them.
Otherwise forum shopping would come in by the back
No. 08-2161 3
door—the removing parent would remove the child to a
jurisdiction that would define “habitual residence” favor-
ably to the parent. Kijowska v. Haines, supra, 463 F.3d at
586. Should the courts of a nation that is not the child’s
habitual residence award custody to the parent who is not
entitled to it under the law of the child’s habitual resi-
dence, the custody decree is not a defense to an order
to return the child. Hague Convention, Art. 17.
The parties, Venezuelan citizens, were married in
Venezuela in 1999 and the following year Avila gave
birth to twins. But later she met an American man on the
Internet and in 2005 asked Vale for a divorce. The parties
divorced that year by mutual agreement. The divorce
decree gave Avila physical custody of the children but
gave both parents the right (and duty) of patria potestas.
That is Latin for “paternal power,” and in Roman law
denoted the father’s absolute right (including the right of
life and death) over his wife, children, and other subor-
dinate family members. Much modified, it survives as a
legal doctrine in civil law countries, such as Venezuela,
where it is defined (so far as bears on this case) as “all the
duties and rights of the parents in relationship to their
children who have not reached majority, regarding the
care, development and education of their children.” Ley
Orgánica para la Protección del Niño y del Adolescente
[Organic Law for the Protection of Children and Adoles-
cents], tit. IV, ch. 2, § 1, art. 347. The duties and rights
“include the physical custody, representation and ad-
ministration of the property of the minor child(ren) subject
to such authority.” Id., art. 348. (The translation into
English is by a translator hired by Vale, but Avila does not
question its accuracy; nor shall we. We have not found an
official translation.) The divorce decree also gave Vale
4 No. 08-2161
unlimited visitation rights, custody of the children for two
weekends a month, and the right of ne exeat, another
civil law doctrine, whereby his consent was required be-
fore the children could leave the country. Id., § 5, art. 392.
The following year, Avila asked Vale for his consent to
her taking the children with her to attend a wedding in
Florida. She told him they’d be gone from Venezuela
for only five days. She lied. She was moving to the United
States with the children in order to marry the man she
had met through the Internet. Vale agreed to let her take
the kids to Florida for the wedding. She took them to
Peoria, Illinois, and married her Internet pal.
Vale filed a petition for the children’s return under
the Hague Convention. The district judge conducted an
evidentiary hearing at which Vale testified and on cross-
examination denied, in response to a question by Avila’s
lawyer, that he had struck his son with a video-game cord.
After Vale rested his case, Avila’s lawyer suggested to the
judge that the parties try to work out a settlement. Avila
and her new husband met with Vale and proposed that the
children be allowed to stay in the United States but spend
every summer, every spring vacation, and every other
Christmas vacation with their father in Venezuela, and
that because Vale (who has a serious disability) has a low
income, while Avila’s new husband has (he said) an
income of between $100,000 and $150,000 a year, Avila with
his help would pay the children’s travel expenses.
The parties signed an agreement containing these terms.
A provision captioned “resumption of Hague proceedings”
states that if Avila fails to comply with the terms of the
agreement, Vale “can refile a Hague Petition in either
State or Federal court in the United States to seek the re-
No. 08-2161 5
turn of the children.” Avila argues that the next sentence
of the provision, which states that until a certain date
she could not raise a statute of limitations defense in a
resumed federal suit and that for purposes of such a
suit the children’s habitual residence would be deemed
Venezuela (for that is what it was before Avila removed
them to the United States), somehow barred resumption
of the suit; we cannot begin to understand the argument.
The settlement agreement provided that the children’s
habitual residence was now Illinois and that Vale would
dismiss his suit, which he did. Avila submitted a copy
of the agreement to an Illinois court, which issued an
uncontested judgment declaring in accordance with the
agreement that the children were now habitual residents
of Illinois. But Avila did not comply with the duties that
the settlement agreement placed on her, and so this
year Vale returned to the federal district court in which he
had filed his Hague Convention petition and moved the
judge to set aside the judgment dismissing his suit, on the
ground that the judgment had been procured by fraud,
and to reinstate the suit. Fed. R. Civ. P. 60(b)(3). The judge
conducted an evidentiary hearing at the conclusion of
which he set aside the judgment, finding on ample evi-
dence that Avila had lied when she had told Vale in the
settlement negotiations that she would finance the chil-
dren’s travel to Venezuela and later when she told him
that the children could not travel outside the United
States because they were not yet lawful residents; they
were.
The judge proceeded to the merits of Vale’s petition for
the return of the children under the Hague Convention,
conducted an evidentiary hearing, and concluded that the
removal of the children to the United States had indeed
6 No. 08-2161
violated the father’s “rights of custody.” So he ordered
the children sent to Vale in Venezuela, precipitating
this appeal by Avila.
Avila’s main argument is that the district court
lacked jurisdiction to reopen the Hague Convention
proceeding because of the recital in the state court judg-
ment that the children are habitual residents of Illinois.
Illinois law does not have the doctrines of patria potestas
or ne exeat, so (we may assume) if the recital is conclusive
of Vale’s rights, he loses because the rights of custody on
which his claim is based are founded on those doctrines
and so his claim fails unless the children’s habitual resi-
dence is Venezuela. Avila argues that a federal court
cannot wrest jurisdiction from a state court, that the
state court judgment is entitled to full faith and credit,
that the reopening of the federal suit was barred by the
Rooker-Feldman doctrine (the doctrine that only the U.S.
Supreme Court can review a state court judgment), and
that, at the very least, the district court should have
abstained in favor of the state court proceeding.
None of these arguments holds water. Rule 60(b) has
the force of a federal statute, and federal statutes
override conflicting state law. A federal court can set aside
a judgment by it that was procured by fraud, and the
effect is to reinstate the proceeding that the judgment
had concluded. Ditto v. McCurdy, 510 F.3d 1070, 1077 (9th
Cir. 2007); 12 James Wm. Moore, Moore’s Federal Practice
¶ 60.20 (3d ed. 1997). What then happens in the resumed
proceeding may be affected by a parallel state court
proceeding or judgment, but that depends on the circum-
stances. In this case, there was no litigation in the state
court, no contest, no significant judicial involvement at
all. All that happened was that the parties petitioned the
No. 08-2161 7
state court to register “a foreign custody judgment” and the
court responded by ordering the clerk of the court to
“register and enroll” the Venezuelan divorce decree and
the settlement agreement. The state court was not asked to
and did not make a determination that the settlement
was proper, although the judgment does contain a recital
that the agreement to register and enroll the foreign
judgment was not “unconscionable.” No evidence of fraud
had come to light when the settlement agreement was
registered in the state court. Nor in the reopened federal
proceeding was Vale asking the district judge to enjoin
the state court proceeding or judgment. He was asking
that the children be returned to Venezuela pursuant to a
treaty (the Hague Convention) that, like its implementing
statute, overrides a state custody decree. Article 17 of the
Convention is explicit about this override, and anyway
a treaty implemented by a federal statute overrides a
state law or judgment. U.S. Const., art. VI, cl. 2; Medellin v.
Texas, 128 S. Ct. 1346, 1365 (2008); Missouri v. Holland,
252 U.S. 416, 432, 435 (1920) (Holmes, J.).
The settlement agreement itself authorizes Vale to
resume his Hague Convention suit if Avila violated it, and
she did—and the agreement is part of the state court
judgment. So all other considerations to one side, that
judgment could not be violated by the reopening of
the suit, or by the judgment rendered by the district
court after the reopening, since implicit in the state
court judgment authorizing the reopening was the possi-
bility that the result would be an order under the Hague
Convention that the children be sent back to Venezuela.
So the district court had jurisdiction over Vale’s petition
and the question on the merits is whether Avila’s removal
of the children to Illinois violated Vale’s “rights of cus-
8 No. 08-2161
tody” under Venezuelan law and was therefore in viol-
ation of the Hague Convention, since before she removed
them to the United States, Venezuela was unques-
tionably their habitual residence. The Convention does not
speak simply of “custody,” but of “rights of custody,”
and these are broadly defined to include “rights relating
to the care of the person of the child and, in particular,
the right to determine the child’s place of residence.” To
include: so the enumeration is not necessarily exhaustive.
By virtue of the doctrine of patria potestas, Vale, the father,
had rights relating to the care of the person of the
child, and, by virtue both of that doctrine and even more
clearly by virtue of the doctrine of ne exeat, the right to
determine that the child’s place of residence would
remain Venezuela rather than the United States.
No more is necessary to establish that Vale had “rights
of custody,” which Avila infringed. Furnes v. Reeves, 362
F.3d 702, 714-16 (11th Cir. 2004); Whallon v. Lynn, 230 F.3d
450, 458-59 (1st Cir. 2000); In re B. del C.S.B., 525 F. Supp. 2d
1182, 1196 (C.D. Cal. 2007); Garcia v. Angarita, 440 F. Supp.
2d 1364, 1378-79 (S.D. Fla. 2006); Gil v. Rodriguez, 184 F.
Supp. 2d 1221, 1225 (M.D. Fla. 2002). Several cases, it is
true—Villegas Duran v. Arribada Beaumont, Nos. 02-55079,
02-55120, 2008 WL 2780656, at *4 (2d Cir. July 18, 2008);
Fawcett v. McRoberts, 326 F.3d 491, 499-500 (4th Cir. 2003),
and Croll v. Croll, 229 F.3d 133, 138-41 (2d Cir. 2000)—hold
that the doctrine of ne exeat does not create a right of
custody, reasoning that if it did the effect would be to
send the child to a parent who did not have custodial
rights but merely a right to prevent the child from being
removed to another jurisdiction. That is a fair point, though
cutting against it is the invitation to abduction that is
tendered if a parent can violate ne exeat with impunity.
No. 08-2161 9
But we need not decide whether the doctrine of ne exeat
creates custody rights, for in none of the cases that answer
the question in the negative did the plaintiff also have the
right of patria potestas. Only Gonzalez v. Gutierrez, 311 F.3d
942 (9th Cir. 2002), is cited for the proposition that patria
potestas does not confer a custody right, and all that that
case actually holds (besides that the doctrine of ne exeat
does not by itself create a right of custody) is that patria
potestas is a default doctrine and hence does not override
rights conferred by a valid custody agreement between the
parents. Id. at 954. (The father in Gonzales had access
rights as well as ne exeat, but not patria potestas.) There is no
such override here. The divorce decree gave Avila
physical custody of the children subject to Vale’s right of
patria potestas. It provided: “The Father and the Mother
shall both EXERCISE THE PATRIA POTESTAS over our
children as we have been doing and as established by the
Law. The aforementioned children shall remain under the
Guard of the mother, with whom they are currently living.”
When the parent who does not receive physical custody
is given the rights and duties of patria potestas, he has
custody rights within the meaning of the Hague Conven-
tion.
So the cases we cited earlier hold, none to the contrary,
and we think they are right. The rights and duties of patria
potestas are so extensive that a parent given them is
thereby denoted a fit custodial parent (as may not be
the case when the parent is merely given the right of ne
exeat), even if, when both parents are holders, one is likely
to have physical custody, as otherwise the children will
be shuttled back and forth between two homes (“joint
custody”), which can be, on balance, a bad thing, depend-
ing on the circumstances. Robert E. Emery, Marriage,
10 No. 08-2161
Divorce, and Children’s Adjustment 79-81 (2d ed. 1999);
Judith S. Wallerstein, Julia M. Lewis & Sandra Blakeslee,
The Unexpected Legacy of Divorce: A 25 Year Landmark Study
215-16 (2000); Jann Blackstone-Ford, The Custody Solutions
Sourcebook 102 (1999).
So Vale has a prima facie right to have the children
returned to Venezuela. Article 13(b) of the Hague Conven-
tion excuses return, however, if the abductor proves by
clear and convincing evidence (42 U.S.C. § 11603(e)(2)(A))
that “there is a grave risk that [the child’s] return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.” The
evidence presented in the district court on this question,
mainly the contested assertion that Vale once struck his
son with a video-game cord, fell short of meeting this
demanding burden. See Gaudin v. Remis, 415 F.3d 1028,
1036-37 (9th Cir. 2005); Whallon v. Lynn, supra, 230 F.3d at
459-60; compare Van De Sande v. Van De Sande, 431 F.3d 567
(7th Cir. 2005); Baran v. Beaty, 526 F.3d 1340, 1345-46 (11th
Cir. 2008); Simcox v. Simcox, 511 F.3d 594, 604-08 (6th Cir.
2007); In re Application of Adan, 437 F.3d 381, 395-97 (3d Cir.
2006); Walsh v. Walsh, 221 F.3d 204, 219-20 (1st Cir. 2000).
Or so at least the district judge could find without being
thought to have committed a clear error.
AFFIRMED.
8-11-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3001953/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 9, 2008
Decided August 5, 2008
Before
RICHARD A. POSNER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 07‐3311 Appeal from the United States District
Court for the Northern District of
United States of America, Illinois, Eastern Division.
Plaintiff‐Appellee,
No. 06 CR 806
v.
Charles P. Kocoras, Judge.
Adam Peterson,
Defendant‐Appellant.
O R D E R
Pursuant to a plea agreement, Adam Peterson pleaded guilty to wire fraud in
violation of 18 U.S.C. § 1343. Peterson filed his milder version of the crime he
committed. As a result, the government withdrew its recommendation for a reduction
for acceptance of responsibility in Peterson’s offense level under the United States
Sentencing Guidelines and sought a two‐level enhancement for obstruction of justice.
No. 07-3311 Page 2
The district court sentenced Peterson based on the government’s revised sentencing
recommendation, and Peterson appeals. We AFFIRM.
I.
Peterson was the president and chief executive officer of Atlas Financial Corporation
(“Atlas”). Atlas contracted with Automatic Data Processing (“ADP”) to provide payroll
direct deposit service for Atlas’s three employees, one of whom was Peterson. Under
Atlas’s contract with ADP, ADP would deposit funds via a wire transfer directly to the
individual employee’s bank account. In exchange, Atlas was required, through its contract,
to have sufficient funds to cover the cost of each ADP wire transfer prior to making any
request for funds. Once ADP made the transfer, Atlas was responsible for repaying the
cost of each deposit.
By November 2001, Atlas encountered financial difficulties and was regularly
carrying a negative balance on its bank account. Apparently the employees had not been
paid for several months. At Peterson’s direction, another Atlas employee contacted ADP
and requested that a total of $394,075.91 be directly deposited into the Atlas employees’
bank accounts as well as separate tax withholding accounts. Peterson knew at that time
Atlas did not have the funds to cover the transfer. After making the transfers on November
7, 2001, ADP contacted Atlas on November 14, 2001, about the funds. Although Peterson
knew that Atlas did not have the money, he assured ADP that it would be paid for the
transfer. On or about November 26, 2001, Peterson faxed ADP a fraudulent wire transfer
form that showed that funds had been wired to ADP’s bank account to cover the funds
Atlas owed ADP. Peterson knew, however, that Atlas had not transferred any funds into
ADP’s bank account.
Peterson was later charged by indictment with four counts of wire fraud in violation
of 18 U.S.C. § 1343 and pleaded guilty on April 19, 2007. As part of the plea agreement,
Peterson stated that he was admitting the facts set forth in the plea agreement
(“agreement”). The agreement also set forth a preliminary sentencing Guideline
calculation with a range of 18‐24 months, as well as noting that Peterson had
clearly demonstrated a recognition and affirmative acceptance of personal
responsibility for his criminal conduct. If the government does not receive
No. 07-3311 Page 3
additional evidence in conflict with this provision, and if the defendant
continues to accept responsibility for his actions within the meaning of
Guideline § 3E1.1(a), including by furnishing the U.S. Attorney’s Office and
the Probation Office with all requested financial information relevant to his
ability to satisfy any fine or restitution that may be imposed in this case, a
two‐level reduction in the offense level is appropriate.
The government agreed that it would recommend an appropriate sentence within the
Guideline range. Finally, the agreement set forth that “it shall be a breach of this Plea
Agreement for either party to present or advocate a position inconsistent with the agreed
calculations set forth [in the preceding agreement paragraphs].”
The district court ordered the parties to file their versions of the offense conduct by
May 4, 2007. In his statement, Peterson, through his attorney, noted that “[d]uring this
period of time [when he committed the underlying crime], [he] was negotiating with
lenders to obtain a bridge loan to cover operating funds for Atlas, as well as give it
sufficient capital to put down payments on certain apartment properties it wished to
purchase.” He went on to state that “[w]hile [he] knew there was not sufficient money in
Atlas’ bank account to reimburse ADP, he was confident that the cash infusion for which
he had been negotiating was imminent and that he would have the funds shortly to cover
the deposits made to ADP.” Peterson described financing negotiations for a $3.5 million
“working capital line” and a $100 million “warehouse line” that occurred between Michael
Sidebottom, acting on his behalf, and Ridgely Potter of Arbor Commercial Mortgage
(“Arbor”).
The government responded with its own version of the offense conduct and a
sentencing memorandum in which it asserted that Peterson’s representations about relying
on an impending loan were false. Specifically, the government pointed to details from a
Secret Service investigation that showed that Arbor was not in the business of making the
type of loans Peterson claimed he sought from it, much less that there was a pending loan.
In light of this information, the government noted that it would be withdrawing its
recommendation for a reduction in Peterson’s offense level for acceptance of responsibility
and that it would be seeking an enhancement for obstruction of justice according to United
States Sentencing Guideline § 3C1.1. The government also stated that it would present
additional information at sentencing regarding Peterson’s untruthfulness. The government
filed a second sentencing memorandum in which it disclosed information regarding
No. 07-3311 Page 4
Peterson’s involvement with a forgery relating to a $65 million deal, past embezzlement
involving a $1.2 million wire transfer, and deception relating to finances and a forged court
order submitted to his wife during the course of their divorce proceeding. In addition to
requesting a two‐level enhancement to Peterson’s Guideline offense level under to § 3C1.1
for obstruction of justice, the government reiterated its intention to withdraw the
recommendation for a three‐level reduction it had planned to recommend for acceptance
of responsibility pursuant to § 3E1.1.
Before Peterson and the government filed their versions of the offense conduct, the
United States Probation Office had recommended that Peterson be assessed a total offense
level of fifteen, which included a base offense level of six, six‐level enhancement for a
fraudulent scheme involving more than $200,000, a two‐level reduction for acceptance of
responsibility, and a one level reduction for cooperation and entry of a plea. With a
Criminal History Category I, the resulting Guideline range was eighteen to twenty‐four
months’ imprisonment. Following the parties’ filings, the probation office amended its
presentence report and recommended that Peterson be assessed a total offense level of
twenty‐four which included the a base offense level of six, a specific offense level of sixteen,
and a two‐level increase for obstruction of justice with no reduction for acceptance of
responsibility. The specific offense level recommendation took into account the $1.2
million wire transfer as relevant conduct under § 1B1.3. With Criminal History Category
I, the resulting Guideline range was fifty‐one to sixty‐three months’ imprisonment.
At sentencing, the district court heard argument from the parties. Peterson’s
attorney objected to the government’s position arguing that it violated the plea agreement.
The district court did not rule on Peterson’s breach argument, but instead addressed the
issues relating to relevant conduct under § 1B1.3. It concluded that the $1.2 million wire
transfer did not constitute relevant conduct under § 1B1.3 and assigned the originally
recommended twelve‐level offense level for a fraudulent scheme involving more than
$200,000. The district court also found that there was no good faith basis for Peterson to
assert that a loan was forthcoming and as such assessed Peterson a two‐level increase in
his offense level for obstruction of justice and no reduction for acceptance of responsibility.
The district court ultimately concluded that an increase for obstruction of justice was
warranted because Peterson’s assertion regarding the loan was “an attempt for the
Probation officer, and ultimately for [the district court] to view this conduct in a more
benign way than it is otherwise deserving.” After concluding that Peterson’s offense level
was twenty with a Criminal History Category I for a Guideline range of thirty‐three to
No. 07-3311 Page 5
forty‐one months’ imprisonment, the district court considered the information the
government provided in its second sentencing memorandum when considering the factors
set forth in 18 U.S.C. § 3553. The district court noted that the statute is broader than the
Guidelines in terms of conduct considerations. The district court then sentenced Peterson
to forty‐one months’ imprisonment, three years’ supervised release, restitution of
$248,355.00, and a special assessment of $100.00. Peterson appeals.
II.
On appeal, Peterson argues that the government breached the agreement by seeking
a sentence greater than the Guideline range of 18 to 24 months’ imprisonment as set forth
in the plea agreement. Peterson contends that the government knew at the time of the
agreement that he thought that a loan was forthcoming, so his continuation of this position
in his version of the offense conduct (filed by his attorney) did not constitute new evidence.
Because this was not newly discovered evidence, Peterson asserts that the statement did
not give the government license to breach the agreement. Peterson also argues that the
district court erred in using his attorney’s statements as set forth in his version of offense
conduct as a basis for finding that Peterson obstructed justice and did not accept
responsibility. Finally, Peterson contends that the district court erred in considering non‐
relevant conduct in fashioning his sentence. We address each of these arguments in turn.1
Before addressing whether there was a breach of the plea agreement, we must first
address Peterson’s contention asserted throughout his brief and by his attorney at oral
argument that the version of the offense conduct was a statement filed by his attorney and
as such is not a repudiation by Peterson of acceptance of responsibility or an attempt to
obstruct justice. In other words, Peterson asserts that he is not responsible for the version
of the offense conduct composed and filed by his attorney and should not have been
denied acceptance of responsibility and received additional points to his offense level for
obstruction of justice based on arguments asserted by his attorney. Peterson has Masters
degree in Business Administration and was sophisticated enough to run his own financial
1
We note that Peterson included additional case citations and expansively developed his
arguments only once he got to his reply brief. As it is, this “is too little, too late.” Harper v.
Vigilant Ins. Co., 433 F.3d 521, 528 (7th Cir. 2005). These arguments should have been included
in the opening brief to enable the government the opportunity to respond and the court the ability
to address them.
No. 07-3311 Page 6
services business. Peterson also responded in the affirmative to the district court’s inquiry
at the beginning of sentencing that he understood all of the documents at issue, and he took
advantage of the opportunity the district court gave him to speak before the it imposed
sentence. At neither of those junctures did Peterson disavow the position set forth in the
version of the offense conduct filed by his attorney. Therefore, we conclude that the district
court properly attributed that version of the offense conduct to Peterson. Cf. United States
v. Dong Jim Chen, 497 F.3d 718, 721 (7th Cir. 2007) (holding that the district court properly
attributed the denials of violent conduct to the defendant where he had the assistance of
an interpreter, had eleven years of education, made the same protests as his attorney,
demonstrated an understanding of the proceedings, and was able to communicate with his
attorney about the proceedings).
In short, the statement of the offense conduct is attributable to Peterson. We now
turn to Peterson’s argument that the government breached the plea agreement by seeking
a Guidleline sentence greater than that set forth in the plea agreement. The government
claims that Peterson failed to satisfy his obligation to continue to accept responsibility
thereby freeing the government from its obligation to recommend a reduction for
acceptance of responsibility.
We review factual determinations surrounding a plea agreement for clear error.
United States v. Collins, 503 F.3d 616, 618 (7th Cir. 2007). Where there are no factual
determinations at issue, we review the issue of whether a plea agreement has been
breached de novo. United States v. Schilling, 142 F.3d 388, 394 (7th Cir. 1998). In making
these determinations, it is worth noting that
[p]lea agreements are treated like contracts, and so our determination of
breach must be made in light of the parties’ reasonable expectations upon
entering the agreement. In general, a defendant’s substantial breach of an
unambiguous term of a plea agreement frees the government to rescind the
deal. In addition, in order to pull out of a plea agreement, the government
need only prove substantial breach on the part of the defendant by a
preponderance of the evidence.
United States v. Kelly, 337 F.3d 897, 901 (7th Cir. 2003) (internal citations and quotations
omitted).
No. 07-3311 Page 7
The government may not unilaterally determine that a defendant has breached the plea
agreement. United States v. Frazier, 213 F.3d 409, 419 (7th Cir. 2000) (citing United States v.
Lezine, 166 F.3d 895 (7th Cir. 1999)). Rather, due process requires that an evidentiary
hearing be conducted to determine if a substantial breach of the agreement has occurred,
and the breach must be proven by a preponderance of the evidence. Id. In the event that
the district court fails to conduct the requisite evidentiary hearing, we have held that “a
judicial failure to make formal findings of substantial breach can be harmless where there
was sufficient evidence before the district court to make such a finding.” Kelly, 337 F.3d
at 902.
While neither party raises this issue in the briefs, we note that the district court did
not address Peterson’s contention that the government breached the plea agreement nor
did it conduct an evidentiary hearing to determine whether the government breached the
plea agreement as Peterson asserted. However, as we previously held in Kelly, we are not
required to remand for formal findings if there was sufficient evidence before the district
court to conclude that there was a substantial breach of the plea agreement. The district
court had before it the Secret Service investigation report which catalogued interviews with
various officials at Arbor Commercial Mortgage which showed that Arbor was not in the
business of making the types of loans Peterson contended he sought, there was no record
of Peterson or Atlas Financial in Arbor’s databases, and none of the employees had a
recollection of the letter Peterson purportedly sent to Arbor. Peterson does not contest the
veracity of this report.
The plea agreement provided: “If the government does not receive additional
evidence in conflict with this provision, and if defendant continues to accept responsibility for
his actions within the meaning of Guideline §3E1.1(a) . . . a two‐level reduction in the
offense level is appropriate.” (emphasis added). Application Note 3 of § 3E1.1 notes that
evidence of the entry of a guilty plea and truthful admission of conduct comprising the
offense of conviction “may be outweighed by conduct of the defendant that is inconsistent
with such acceptance of responsibility.” Moreover, Application Note 4 provides that
“conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct.”
In this case, the district court found that Peterson was making a false statement,
No. 07-3311 Page 8
if he says, ‘There is a loan forthcoming. I believe that to be so. And that is
going to take care of all of the problems.’ . . . There is no basis at all to believe
– that I can see in any of the evidence – that there was any loan forthcoming
from Arbor or anybody else to make this whole ADP transfer of funds that
was improperly received, based on a false instrument. Okay? Nothing. And
the idea that the belief was genuinely held and, therefore, couldn’t be
fraudulent, is not so. All kinds of cases take place where people spout things
that they do not honestly believe at all. And crimes are predicated on the
falsehood of a statement that something is about to happen. That is where
we are here.
By asserting facts that were not true, namely that he had been in the process of procuring
a loan with Arbor, Peterson failed to continue to accept responsibility as required by the
plea agreement. Peterson had an obligation under the agreement to accept responsibility,
regardless of whether the government received additional, new evidence. Once the
government learned of Peterson’s obstructive conduct, the government was free to
withdraw from the plea agreement on the ground that Peterson was not only not accepting
responsibility, but he was attempting to deceive both the probation office and the district
court. It was not Peterson’s attorney’s characterization of the loan as imminent that was
problematic, but rather the very fact that Peterson contended that there was going to be a
loan when the facts did not support such a contention. Based on the information provided
in the Secret Service report as well as the terms of the agreement, we find that there was
sufficient evidence to find that the government did not breach the plea agreement,
substantially or otherwise. Rather, it was Peterson who breached the plea agreement.
Peterson argues that his “subjective belief as to the likelihood of the loans being
finalized is not conduct or commentary which indicates that he does not accept full
responsibility for his criminal conduct.” We disagree. Peterson’s characterization of events
was inconsistent with acceptance of responsibility. First, Peterson does not challenge the
district court’s factual finding quoted above that Peterson’s belief was a false belief.
Moreover, Peterson knew before the date of the plea, based on the discovery propounded
by the government, that the loans he claims he tried to obtain were not possible. Despite
this knowledge, he continued to attempt to lead the probation office and district court to
believe that the loans just did not come through in time. In his version of the offense
conduct, Peterson did not state or even allude to the fact that not only did the loans not
come through in time, but that they were never coming at all. Deception can be achieved
No. 07-3311 Page 9
through commission or by omission. In this instance, Peterson attempted to mislead the
district court through omission of key information. He knew the loans were never coming,
yet he failed to include this key fact when he relayed his version of the offense conduct to
the probation office and the district court. The plea agreement did not obligate the
government to sit silently while Peterson presented a misleading version of the offense that
was inconsistent with his obligation to continue to accept responsibility. Accordingly, we
conclude that the government did not breach the plea agreement.
Peterson’s sole argument challenging the district court’s finding on acceptance of
responsibility is that he cannot be deemed to have not accepted responsibility based on
what his attorney had written in his submission concerning the offense conduct. “Whether
a defendant has accepted responsibility is a factual determination ordinarily reviewed for
clear error.” United States v. Silvious, 512 F.3d 364, 370 (7th Cir. 2008). As we noted above,
the district court properly attributed the version of the offense conduct to Peterson filed by
his attorney. The district court properly concluded that Peterson’s falsification of
information regarding the loan was not consistent with accepting responsibility for his
crime. Therefore, the district court did not err in concluding that Peterson was not entitled
to a reduction in his Guideline offense level for acceptance of responsibility.
Peterson also challenges the district court’s assessment of a two‐level increase to his
offense level for obstruction of justice in accordance with § 3C1.1. Again, Peterson relies
on two arguments we have dismissed above: that he is not responsible for the statement
of his attorney and the government relies on information that was known to the
government prior to the plea agreement. Peterson also contends that “[t]here is nothing
in his attorney’s statement that attempts to mitigate or excuse his crime. The information
was simply an attempt to provide the Probation Department with an overall understanding
of the Defendant’s state of mind at the time of his commission of the crime.”
“We review de novo the adequacy of the district court’s obstruction of justice
findings and any underlying factual findings for clear error.” United States v. Price, 516 F.3d
597, 606‐07 (7th Cir. 2008) (citation omitted). Section 3C1.1 provides:
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense and
conviction, and (B) the obstructive conduct related to (i) the defendant’s
No. 07-3311 Page 10
offense of conviction and any relevant conduct; or (ii) a closely related
offense, increase the offense level by two‐levels.
“‘Material’ evidence, fact, statement, or information, as used in this section, means
evidence, fact, statement, or information that, if believed, would tend to influence or affect
the issue under determination.” U.S.S.G. § 3C1.1 Application Note 6.
The district court made the following finding regarding Peterson’s version of the
offense conduct:
[I]f he is spouting a belief that has no basis in reality – I do not think this one
does – then it is an obstruction because as the government counsel has
argued, it is an attempt for the Probation officer, and ultimately for me, to
view this conduct in a more benign way than it was otherwise deserving of.
The district court did not clearly err in making this finding, namely that Peterson was
attempting to materially affect his sentence through his version of the offense conduct. In
fact, we find Peterson’s contention that he was merely providing a broader picture of the
circumstances surrounding his crime and not trying to mitigate his responsibility bordering
on the absurd. If he was not trying to minimize his culpability for the offense, there was
no need to set forth his state of mind, and he could have relied on the facts of the offense
conduct set forth in the plea agreement. Therefore, we affirm the district court’s
assessment of two‐levels for obstruction of justice pursuant to § 3C1.1.
Peterson’s final argument is that the district court impermissibly considered other
allegations of embezzlement and deceit as relevant conduct to enhance his sentence. We
review the application of the Guidelines de novo and factual determinations for clear error.
United States v. Gallardo, 497 F.3d 727, 740 (7th Cir. 2007). Peterson cites § 1B1.3, the
Guideline section for relevant conduct, and cases in which this court determined what
constitutes relevant conduct under § 1B1.3. The government responds that this information
was presented to the district court not as relevant conduct for purposes of calculating
Peterson’s Guideline range, but rather as considerations for the overall scheme of things
when considering the factors set forth in 18 U.S.C. § 3553. Peterson’s argument fails
because the district court did not consider this additional conduct as relevant conduct
pursuant to § 1B1.3. Agreeing with both Peterson and the government, the district court
concluded that the additional conduct did not constitute relevant conduct and rejected
No. 07-3311 Page 11
probation’s proposed 16‐level enhancement based on a prior embezzlement. This other
conduct did not impact the district court’s Guideline calculation as § 1B1.3 relevant conduct
or otherwise. Therefore, the district court did not improperly consider certain prior acts
by Peterson as relevant conduct.2
III.
The government did not breach its plea agreement with Peterson, and the district
court did not err in assessing an increase for obstruction of justice and by not applying a
decrease for acceptance of responsibility to Peterson’s Guideline offense level. Finally, the
district court also did not improperly consider past criminal conduct as relevant conduct
under § 1B1.3. We AFFIRM.
2
Because Peterson does not challenge the district court’s consideration of prior
embezzlement, forgery, and actions during his divorce proceeding in considering the factors set forth
in 18 U.S.C. § 3553, we do not address its propriety. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002242/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 2, 2008
Decided October 3, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2093
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:08CR00010‐001
ROBERTO VALADEZ‐MARTINEZ,
Defendant‐Appellant. Larry J. McKinney,
Judge.
O R D E R
Roberto Valadez‐Martinez was found in Indiana just weeks after being deported for
the third time to his native Mexico. Since 1980 when he was first deported, Valadez‐
Martinez has used roughly six social security numbers and forty‐four aliases. He pleaded
guilty to being present again in the United States without authorization, see 8 U.S.C.
§ 1326(a), and was sentenced at the high end of the guidelines range to ninety‐six months’
imprisonment and three years’ supervised release. Valadez‐Martinez filed a notice of
appeal, but his appointed counsel moves to withdraw because he cannot discern a
nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967). We invited
Valadez‐Martinez to respond to counsel’s submission, see CIR. R. 51(b), but he has not. We
No. 08‐2093 Page 2
limit our review to the potential issues identified in counsel’s brief. United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002).
Valadez‐Martinez does not want us to set aside his guilty plea, so counsel
appropriately omits any discussion of the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002).
Counsel instead focuses on the sentence and first questions whether Valadez‐Martinez
could argue that the district court erred by increasing his offense level by sixteen levels on
the ground that he was deported after a conviction for a “crime of violence.” See U.S.S.G.
§ 2L1.2(b)(1)(A). Valadez‐Martinez did not object to this increase, so our review would be
limited to plain error because he forfeited the argument. See United States v. Wainwright,
509 F.3d 812, 815 (7th Cir. 2007); United States v. Jaimes‐Jaimes, 406 F.3d 845, 848‐49 (7th Cir.
2005).
Using the 2007 sentencing guidelines, the district court set a base offense level of
eight. See U.S.S.G. § 2L1.2(a). Valadez‐Martinez had been arrested more than thirty times
and incurred twenty‐two separate convictions. The court concluded that one of those
convictions, a 2004 felony conviction in Texas for “injury to a child,” see TEX. PENAL CODE
ANN. § 22.04(a) (Vernon 2003), is a “crime of violence” warranting the sixteen‐level increase
under § 2L1.2(b)(1)(A). The particular offense is not listed among those that are
categorically crimes of violence, so it qualifies only if it constitutes an “offense under
federal, state, or local law that has as an element the use, attempted use, or threatened use
of physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Counsel
asserts that force is not an element of this crime, and we agree.
Section 22.04(a) does not have as an element the use or threatened use of force. The
act punishes a defendant who causes physical or mental injury to a child. The injury need
not be caused by the application of physical force; indeed, a failure to act that results in
injury can be punished under the statute. See, e.g., United States v. Gracia‐Cantu, 302 F.3d
308, 312‐13 (5th Cir. 2002); Patterson v. State, 46 S.W.3d 294, 301 (Tex. App. 2001) (failing to
report children’s abduction); Thornton v. State, 994 S.W.2d 845, 850‐51 (Tex. App. 1999)
(failing to timely seek medical attention). Moreover, injury to a child can be a felony under
the Texas statute even if the defendant’s conduct was not intentional, see TEX. PENAL CODE
ANN. § 22.04(f) (Vernon 2003) (“When the conduct is engaged in recklessly it shall be a state
jail felony.”); id. § 22.04(g) (“An offense under Subsection (a) when the person acts with
criminal negligence shall be a state jail felony.”); Otting v. State, 8 S.W.3d 681, 690 (Tex.
App. 1999). In this case, the government made no effort to establish through permissible
sources that Valadez‐Martinez was convicted under the subsection having intentional
conduct as an element. See Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (explaining that 18 U.S.C.
§ 16(a), which defines “crime of violence” to mean “an offense that has an element the use,
No. 08‐2093 Page 3
attempted use, or threatened use of physical force against the person or property of
another,” does not encompass negligent or accidental conduct); United States v. Zuniga‐Soto,
527 F.3d 1110, 1123‐24 (10th Cir. 2008) (relying on Leocal in holding that “mens rea of
recklessness does not satisfy use of physical force requirement under § 2L1.2’s definition of
‘crime of violence’”); United States v. Portela, 469 F.3d 496, 499 (6th Cir. 2006) (same).
Therefore, a conviction under Texas Penal Code § 22.04(a) is not a “crime of violence,” and
this conviction should not have been used to increase Valadez‐Martinez’s offense level.
As counsel explains, however, the district court’s mistake does not matter because
Valadez‐Martinez also has a 1978 conviction for burglary of a habitation that qualifies as a
crime of violence. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Although this conviction is thirty
years old and thus did not contribute to the calculation of Valadez‐Martinez’s category VI
criminal history, see U.S.S.G. § 4A1.2(e), there is no corresponding age limit for convictions
that trigger an increase under § 2L1.2(b), see id. cmt. 1(B)(vii), cmt. 6; United States v.
Olmos‐Esparza, 484 F.3d 1111, 1116 (9th Cir. 2007); United States v. Torres‐Duenas, 461 F.3d
1178, 1182 (10th Cir. 2006); United States v. Camacho‐Ibarquen, 410 F.3d 1307, 1313 (11th Cir.
2005); United States v. Gonzales, 112 F.3d 1325, 1331 (7th Cir. 1997). A misapplication of the
guidelines that had no effect on the choice of sentence is harmless, Williams v. United States,
503 U.S. 193, 203 (1992), United States v. Schuster, 467 F.3d 614, 620 (7th Cir. 2006), and thus
counsel is correct that any contention about the basis for the sixteen‐level increase would be
frivolous.
Counsel next considers whether Valadez‐Martinez might argue that his prison
sentence is unreasonable because of the Southern District of Indiana lacks a “fast track”
program. Fast‐track sentencing began in states bordering Mexico where defendants who
waive procedural rights and quickly plead to immigration offenses benefit with a lower
sentence. See United States v. Morales‐Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005). Fast‐track
programs have expanded to other regions, id. at 1127 n.1, but are open only to defendants
with a minimal criminal history and only on the government’s motion. See Paul W. Hahn,
Responding to the Fast‐Track Disparity Argument, 54 U.S. ATT’YS’ BULL. 11, 15‐16 (noting
varying standards including the exclusion of aliens previously convicted of a crime of
violence, those whose prior imprisonment has totaled at least ten years, and those with at
least ten criminal history points); U.S.S.G. § 5K3.1 (conditioning eligibility on motion from
government). In this case, because of Valadez‐Martinez’s extensive criminal history, the
government recommended a sentence at the high end of the guidelines range. After
entertaining arguments for a lower sentence, including the contention that Valadez‐
Martinez ought to receive the same breaks as defendants facing immigration charges in
other districts, the district court imposed a term at the high end of the guidelines range.
No. 08‐2093 Page 4
We agree with counsel that it would be a frivolous to further pursue his fast‐track
argument. We have rejected the idea that a sentence can be unreasonable just because the
district where it was imposed does not have a fast‐track program. E.g., United States v.
Pacheco‐Diaz, 506 F.3d 545, 552 (7th Cir. 2007). The Supreme Court’s decision in Kimbrough
v. United States, 128 S. Ct. 558 (2007), has rekindled debate about whether the absence of a
fast‐track program can be a factor in the choice of sentence, compare United States v.
Vega‐Castillo, No. 07‐12141, 2008 WL 3833826, at *3 (11th Cir. August 19, 2008), and United
States v. Rodríguez, 527 F.3d 221, 229 (1st Cir. 2008), with United States v. Gomez‐Herrera, 523
F.3d 554, 562 (5th Cir. 2008), but for Valadez‐Martinez the question is irrelevant. His
extensive criminal history would have disqualified him from fast‐track consideration in any
district, see Hahn, supra, and, moreover, the sentencing court in fact considered and rejected
the absence of a fast‐track program as a basis for imposing a lower sentence. A district
court is never required to accept a defendant’s arguments for a lower sentence. United States
v. Filipiak, 466 F.3d 582, 583 (7th Cir. 2006). All that is necessary is that the court consider
the factors under 18 U.S.C. § 3553(a) along with any nonfrivolous position advocated by the
defendant, which the court did here. See United States v. Laufle, 433 F.3d 981, 987 (7th Cir.
2006); United States v. Rodriguez‐Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005).
Finally, counsel questions whether Valadez‐Martinez might have a potential claim
of ineffective assistance of counsel. As counsel observes, though, ineffective assistance
claims are best raised in a proceeding under 28 U.S.C. § 2255 where the record can be fully
developed. See Massaro v. United States, 538 U.S. 500, 504‐05 (2003); United States v. Spence,
450 F.3d 691, 694 (7th Cir. 2006).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002272/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1838
U NIVERSITY OF C HICAGO H OSPITALS,
Plaintiff-Appellee,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5120—Matthew F. Kennelly, Judge.
A RGUED O CTOBER 23, 2007—D ECIDED S EPTEMBER 23, 2008
Before B AUER, C UDAHY, and SYKES, Circuit Judges.
S YKES, Circuit Judge. The University of Chicago Hospitals
(“UCH”) brought this refund action against the United
States to recover taxes it paid in 1995 and 1996 under the
Federal Insurance Contributions Act (“FICA”), 26 U.S.C.
§§ 3101-3128, on behalf of its medical residents. UCH
maintains it is entitled to a refund because its residents
qualified for the “student exception” from FICA tax under
the Internal Revenue Code (“IRC”), 26 U.S.C. § 3121(b)(10),
2 No. 07-1838
and the controlling Treasury Regulation in place during
the relevant time period, 26 C.F.R. § 31.3121(b)(10)-2.
The district court agreed initially to entertain the gov-
ernment’s motion for summary judgment on the question
of whether medical residents are categorically not “stu-
dents” under § 3121(b)(10) and therefore not exempt from
FICA tax as a matter of law. If the answer to this question
was “no”—that is, if residents may qualify for the student
exception—then the case would proceed on the question
of whether UCH’s residents were students within the
meaning of § 3121(b)(10).
The district court rejected the government’s argument
that residents were per se ineligible for the student excep-
tion and certified its order for immediate appeal under
28 U.S.C. § 1292(b). We granted the government’s petition
for interlocutory appeal and now affirm. The student
exception unambiguously does not categorically exclude
medical residents as “students” potentially eligible for
exemption from payment of FICA taxes. Even if we were to
consider the statute ambiguous, the implementing Trea-
sury Regulation applicable at the time and entitled to
deference under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), sets forth a
method for determining eligibility for the student excep-
tion—one that focuses on the character of the employing
organization as a school, college, or university and the
relationship of the employee-student to that organization.
This necessarily implies a case-specific analysis, not a
categorical ineligibility for certain classes of employee-
students.
No. 07-1838 3
I. Background
UCH is a not-for-profit Illinois corporation affiliated
with the University of Chicago. Like many hospitals in
the United States, UCH administers graduate medical-
education programs for residents in various specialties.
Although the role of medical residents at hospitals varied
throughout the twentieth century, today residents are
generally recent graduates of medical schools who
perform services at hospitals as the last step in their
medical training for the purpose of gaining expertise in
patient care and in their chosen specialty. Many states
require at least one year of residency before granting an
unrestricted license to practice medicine, and a standard
residency lasts three to seven years, depending upon
the specialty. Most teaching hospitals require their resi-
dents to take classes in the form of lectures and demonstra-
tions, and to submit to regular evaluations by senior
doctors. Medical-residency programs are accredited by
the Accreditation Council for Graduate Medical Education.
See Accreditation Council for Graduate Medical Education,
http://www.acgme.org/acW ebsite/newsRoom/
ACGMEfactsheet.pdf (last visited August 26, 2008).
UCH filed timely requests for refunds of the FICA taxes
paid on behalf of its medical residents for the years 1995
and 1996, citing the “student exception,” 26 U.S.C.
§ 3121(b)(10). After the IRS took no action, UCH filed this
refund action, seeking $5,572,705 it had paid in FICA
contributions for its residents in those years. The district
court bifurcated the proceeding, first addressing the
government’s argument that medical residents were
4 No. 07-1838
categorically ineligible for the student exception as a
matter of law. If the court agreed with this argument, UCH
would lose; if not, the case would proceed on the specific
question of whether UCH’s residents qualified for the
student exception.
The district court answered the threshold legal question
“no,” rejecting the government’s argument that residents
were per se precluded from qualifying as students under
§ 3121(b)(10). The court thus denied the government’s
summary judgment motion and certified its order for
immediate appeal under 28 U.S.C. § 1292(b). The gov-
ernment petitioned for leave to bring an interlocutory
appeal. This court granted that request, and this appeal
followed.
II. Discussion
Our standard of review is de novo. 330 W. Hubbard Rest.
Corp. v. United States, 203 F.3d 990, 994 (7th Cir. 2000) (court
of appeals reviews the district court’s decision on “sum-
mary judgment, as well as its interpretation of the tax code,
de novo”). FICA taxes fund the Social Security Trust Fund
and are levied on wages. See 26 U.S.C. §§ 3101(a) & (b),
3111(a) & (b). “Wages” are defined as “remuneration for
employment.” 26 U.S.C. § 3121(a). “Employment,” in turn,
means “any service, of whatever nature, performed . . . by
an employee for the person employing him.” 26 U.S.C.
§ 3121(b). These definitions are extremely broad; the
statute also contains numerous exceptions exempting
certain enumerated employment relationships from FICA
tax liability. At issue here is the so-called “student excep-
tion,” which provides:
No. 07-1838 5
[Employment] shall not include . . . .
(10) service performed in the employ of—
(A) a school, college, or university, or
(B) an organization described in section 509(a)(3)
if the organization is organized, and at all times
thereafter is operated, exclusively for the benefit of,
to perform the functions of, or to carry out the
purposes of a school, college, or university and is
operated, supervised, or controlled by or in con-
nection with such school, college, or university . . .
if such service is performed by a student who is
enrolled and regularly attending classes at such
school, college, or university.
26 U.S.C. § 3121(b)(10).
The government maintains that medical residents are
per se ineligible for the student exception. It makes a
very brief textual argument in support of this position,
asserting that “it is scarcely the most natural reading of the
word ‘student’ to interpret it as applying to a medical
resident” because a resident already has a medical degree
and has “merely entered a post-medical school residency
program at a hospital.” Likewise, the government adds, a
hospital is not a “school, college, or university” in “the
most common sense of those words.” We are unpersuaded.
A teaching hospital like UCH may indeed be regarded as
part of the university with which it is affiliated for pur-
poses of the student exception. And medical-school
graduates participating in postgraduate medical residen-
cies at university hospitals may be regarded as
6 No. 07-1838
students within the meaning of the statute even though
they already possess a medical degree. Simply put, there
is nothing in the statute itself that categorically excludes
medical residents from eligibility for the student excep-
tion. Stated differently, the student exception, by its terms,
does not preclude medical residents from attempting to
bring themselves within the exemption from FICA tax
liability.
The vast bulk of the government’s argument rests on
inferences drawn from statutory and legislative his-
tory—more specifically, the statutory and legislative
history of a different FICA tax exception, one pertaining
to medical interns, codified at 26 U.S.C. § 3121(b)(13),
which was repealed in 1965. To prevail on this argu-
ment, the government must establish that the statute is
ambiguous, and further, that the implementing Treasury
Regulation applicable during the relevant time period is
an impermissible interpretation of the statute. Arnett v.
Comm’r, 473 F.3d 790, 793 (7th Cir. 2007) (citing Chevron,
467 U.S. at 842-43). It has done neither.
We note initially that the district court implicitly con-
cluded that the statute is ambiguous and then deferred to
the Treasury Regulation under Chevron. The district court
apparently saw ambiguity in the statute’s failure to
specifically address whether medical residents may
qualify for the student exception. But the statute’s silence
on the specific subject of medical residents does not
necessarily mean it is ambiguous. The interpretation the
government advances—that the student exception is
categorically inapplicable to residents—is textually untena-
No. 07-1838 7
ble for the reasons we have already stated. We agree
with the Eleventh Circuit that the student exception,
§ 3121(b)(10), “[b]y its plain terms . . . does not limit the
type[ ] of services that qualify for the exemption.” United
States v. Mount Sinai Med. Ctr., 486 F.3d 1248, 1252 (11th
Cir. 2007).
Even if we were to conclude that the statute’s silence
on the subject of medical residents makes it ambiguous
on the question of whether residents as a class are ineligi-
ble for the student exception, we would turn first to the
applicable Treasury Regulation. Treasury regulations
promulgated pursuant to the “IRC’s general grant of
authority to prescribe rules to enforce the provisions of
the IRC” are entitled to deference if “the agency’s con-
struction of the statute is permissible.” Arnett, 473 F.3d
at 793; see also Bankers Life & Cas. Co. v. United States, 142
F.3d 973, 977-83 (7th Cir. 1998) (discussing the levels of
deference given to tax regulations promulgated pursuant
to specific and general statutory grants of authority,
revenue rulings, and private letter rulings). A regulation
is permissible and “will be controlling, unless the regula-
tion is ‘arbitrary, capricious, or manifestly contrary to the
statute.’ ” Arnett, 473 F.3d at 793 (quoting Chevron, 467 U.S.
at 843-44). That is, a regulation “will be permissible, and
we shall defer to it, so long as the interpretation is a
reasonable construction of the statute.” Id.
The Treasury Regulation applicable during the relevant
time period provides as follows:
(b) For purposes of this exception, the amount of
remuneration for services performed by the employee
8 No. 07-1838
in the calendar quarter, the type of services performed
by the employee, and the place where the services
are performed are immaterial. The statutory tests are
(1) the character of the organization in the employ of
which the services are performed as a school, college,
or university . . . and (2) the status of the employee
as a student enrolled and regularly attending classes
at the school, college, or university . . . .
(c) The status of the employee as a student performing
the services shall be determined on the basis of the
relationship of such employee with the organization
for which the services are performed. An employee
who performs services in the employ of a school,
college, or university, as an incident to and for the
purpose of pursuing a course of study at such school,
college, or university has the status of a student in
the performance of such services . . . .
26 C.F.R. § 31.3121(b)(10)-2 (1975). The regulation thus
prescribes a case-specific test for whether the student
exception applies, one that focuses on the character of the
employing organization as a school, college, or university,
and its relationship to the employee claiming student
status. The amount the employee is paid, the type of
services performed, and the place where services are
performed are immaterial.
The government does not suggest that § 31.3121(b)(10)-2
is unreasonable, arbitrary, capricious, or invalid. It
argues instead that the regulation “has no application” to
medical residents and therefore we may simply disregard
No. 07-1838 9
it, never mind the question of its entitlement to deference.1
Again, the government’s argument proceeds from infer-
ences about the statutory and legislative history of the
student exception and the intern exception. That is, the
government maintains that the Treasury Regulation
must be read in light of the legislative history of the
student and intern exceptions, which establishes (so the
argument goes) that Congress intended to categorically
exclude medical residents from eligibility for the student
exception. This legislative history, the government con-
cludes, demonstrates that the Treasury Regulation—and
the case-specific tests it specifies—does not apply to
medical residents.
In addition, the government notes that the regulation
was revised, effective April 1, 2005, to provide that an
employee who works at least 40 hours per week is consid-
ered a full-time employee and not eligible for the
student exception because his services are deemed not
“incident to and for the purpose of” a course of study. See
T.D. 9167, 2005-1 C.B. 261, Treas. Reg. § 31.3121(b)(10)-
2(d)(3) (2005). Acknowledging that the new regulation is
not applicable here, the government nevertheless main-
tains that it adopts a “per se approach” that necessarily
excludes medical residents since “no medical resident . . .
today works less than 40 hours per week.” Therefore, the
1
The government’s argument in this regard makes it unneces-
sary for us to determine what particular level of deference is
called for in this case. See Bankers Life, 142 F.3d at 977-83 (dis-
cussing the difference between tax regulations promulgated
pursuant to specific and general statutory grants of authority).
10 No. 07-1838
government argues, the new regulation implements “the
congressional intent of precluding medical residents . . .
from being eligible for the student exception.”
We will set aside for the moment the unconventional
nature of this approach to Chevron deference and the
oddity of arguing that an inapplicable regulation
somehow demonstrates that the applicable regulation
does not apply. We have already concluded that
§ 3121(b)(10) unambiguously does not exclude medical
residents from eligibility for the student exception. Accord-
ingly, we need not entertain this foray into legislative
history. For the sake of completeness, however, we will
briefly sketch the legislative activity regarding the
student and intern exceptions on which the government
relies.
The student exception was enacted in 1939 as an amend-
ment to the 1935 Social Security Act, see Internal Revenue
Code of 1939, § 1426(b)(10)(iii), 53 Stat. 1360, 1385 (1939),
and at that time Congress also enacted a specific FICA
exception for medical interns. Subsequently codified at
former 26 U.S.C. § 3121(b)(13) (1964), the intern exception
exempted from FICA taxation “services performed as
an interne [sic] in the employ of a hospital by an
individual who has completed a four year[ ] course in a
medical school chartered or approved pursuant to State
Law.” Internal Revenue Code of 1939, § 1426(b)(13), 53 Stat.
1360, 1385 (1939). The intern exception established a
categorical FICA exemption for services rendered by
No. 07-1838 11
medical interns.2
In 1965 Congress repealed the intern exception. See Social
Security Amendments of 1965, Pub. L. No. 89-97, § 311, 79
Stat. 286, 381 (1965). The government cites certain state-
ments in House and Senate Reports reflecting congressio-
nal concern about Social Security coverage for “young
doctors” and their families. The government views the
legislative history surrounding the repeal of the intern
exception as broadly establishing congressional intent
regarding medical residents, who are also “young doctors.”
The government contends that the repeal of the per se
exception for interns must be understood to mean that
Congress intended both interns and medical residents to
be per se ineligible for the student exception.
This argument relies on non sequiturs. The student
exception was wholly unaffected by the repeal of the intern
exception, and the repeal of the intern exception
implied nothing about whether either interns or residents
might bring themselves under the student exception.
Moreover, UCH notes a statement in the House Report
accompanying the repeal of the intern exception that
2
In 1964 the Sixth Circuit held that the intern exception did not
apply to medical residents because of the distinctions between
interns and residents that existed in 1939. St. Luke’s Hosp. Ass’n
v. United States, 333 F.2d 157, 161 (6th Cir. 1964). The court noted
that the differences between interns and residents had since
become “blurred,” but held nonetheless that residents were
not eligible for the per se intern exemption. Id. at 164. The
court’s opinion did not discuss the student exception.
12 No. 07-1838
leaves open the possibility that interns might qualify for
other FICA exemptions: “The effect of this amendment
[repealing the intern exception] is to extend coverage
under the Federal Insurance Contributions Act to such
interns unless their services are excluded under provisions
other than section 3121(b)(13).” H.R. R EP. N O . 89-213, 216
(1965), reprinted in 1965-2 C.B. at 747 (emphasis added).
We need not, in any event, attempt to reconcile the
statutory and legislative history of the intern exception
with the student exception, § 3121(b)(10), or the applicable
Treasury Regulation, § 31.3121(b)(10)-2. For the reasons
we have already stated, the statute unambiguously does
not categorically exclude medical residents from eligibility
for the student exception. To the extent the statute is
ambiguous, the regulation calls for a case-specific test for
eligibility that focuses on the character of the employing
organization as a school, college, or university, and its
relationship with the employee claiming student status.
The regulation reflects a permissible construction of the
statute (the government does not argue otherwise) and is
plainly applicable here, the government’s argument about
the repeal of the intern exception notwithstanding.
Accordingly, we join the Eleventh Circuit in holding that
the student exception, § 3121(b)(10), is not per se inapplica-
ble to medical residents as a matter of law; rather, a case-
by-case analysis is required to determine whether medical
residents qualify for the statutory exemption from FICA
taxation. Mount Sinai Med. Ctr., 486 F.3d at 1253; see also
Minnesota v. Apfel, 151 F.3d 742, 748 (8th Cir. 1998) (reach-
ing a similar conclusion regarding medical residents at a
No. 07-1838 13
state hospital, construing a student exception contained
in an agreement between the State of Minnesota and the
Commissioner of Social Security pursuant to 42 U.S.C.
§ 418(a)(1)). The judgment of the district court is A FFIRMED.
9-23-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002293/ | In the
United States Court of Appeals
For the Seventh Circuit
Nos. 06-3476, 06-3987 & 06-3994
O MAR C. F ERNANDEZ, F LORENCIO V ICTOR
JIMENEZ-M ATEO, and JULIO C ALDERON,
Petitioners,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
Petitions for Review from Decisions
of the Board of Immigration Appeals
Nos. A43-771-790, A14-833-354
and a Final Administrative Order of the
Office of Immigration and Customs Enforcement
No. A70-563-201
A RGUED O CTOBER 30, 2007—D ECIDED S EPTEMBER 15, 2008
Before M ANION, R OVNER, and S YKES, Circuit Judges.
M ANION, Circuit Judge. Petitioners Florencio Victor
Jimenez-Mateo, Julio Calderon, and Omar Cendejas-
Fernandez (collectively “petitioners”) were ordered
removed from this country. The orders of removal were
2 Nos. 06-3476, 06-3987 & 06-3994
based on findings that petitioners’ most recent state-court
convictions for drug possession offenses constituted
aggravated felonies under § 101(a)(43)(B) of the Immigra-
tion and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B),
because each of the petitioners had previously been
convicted of a controlled substance offense. The peti-
tioners have filed timely petitions for review in this court.
They assert that their first and second state-court convic-
tions for simple drug possession cannot amount to an
“aggravated felony” under § 101(a)(43)(B) of the INA.
Because we have already found in United States v. Pacheco-
Diaz, 506 F.3d 545 (7th Cir. 2007), that such convictions
do constitute an “aggravated felony” under § 101(a)(43)(B)
of the INA, we deny their petitions for review.
I.
We briefly summarize the facts and procedural history
of each of the petitioners’ cases below.
A. Julio Calderon
Calderon is a citizen of Mexico who entered the United
States illegally. He is also a documented member of the
Latin Kings street gang, a national criminal organization
based in Chicago. See generally United States v. Olson, 450
F.3d 655, 661-62 (7th Cir. 2006) (describing the organiza-
tion of the Latin Kings). As one might expect of a member
of the Latin Kings, Calderon has had several run-ins with
the law. Most relevant to this opinion, however, are
Calderon’s convictions for marijuana possession: an
Nos. 06-3476, 06-3987 & 06-3994 3
October 30, 2002 conviction for marijuana possession
in violation of 720 ILCS 550/4(a), and an August 8, 2006
conviction for two counts of marijuana possession in
violation of 720 ILCS 550/4(a) and (b).
In October 2006, the Department of Homeland Security
(“DHS”) initiated removal proceedings against Calderon.
DHS charged that Calderon was subject to removal under
§ 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii),
for having been convicted of an aggravated felony as
defined in § 101(a)(43) of the INA, 8 U.S.C. § 1101(a)(43).
DHS listed Calderon’s three marijuana possession
offenses as the basis for the aggravated felony charge. On
November 8, 2006, DHS issued a final administrative
removal order finding that Calderon was an aggravated
felon and ordering him removed from the United States
to Mexico. Calderon timely filed a petition for review of
DHS’s order in this court.
B. Omar Cendejas-Fernandez (“Fernandez”)
Fernandez is a citizen of Mexico who was admitted to the
United States as a lawful permanent resident in 1992. On
September 28, 2001, Fernandez was convicted of two
counts of cocaine possession in violation of 720 ILCS
570/402(c). On November 7, 2005, Fernandez again was
convicted of cocaine possession in violation of 720 ILCS
570/402(c).
On March 29, 2006, DHS initiated removal proceedings
against Fernandez. DHS charged that Fernandez was
removable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C.
4 Nos. 06-3476, 06-3987 & 06-3994
§ 1227(a)(2)(A)(iii), for having been convicted of an aggra-
vated felony as defined in § 101(a)(43)(B) of the INA,
8 U.S.C. § 1101(a)(43)(B). Fernandez was ordered to
appear before an Immigration Judge (“IJ”). After a hearing
on May 22, 2006, the IJ issued an oral decision ordering
that Fernandez be removed to Mexico. In reaching that
decision, the IJ first cited this court’s decision in Ali v.
Ashcroft, 395 F.3d 722 (7th Cir. 2005), wherein we
stated that any alien who has been convicted of a state
controlled substance offense that is also a felony punish-
able under the Controlled Substances Act (“CSA”) has, for
immigration purposes, been convicted of an aggravated
felony. The IJ then noted that Fernandez had been con-
victed of possessing a controlled substance in 2005 after a
previous conviction for possessing a controlled substance
in 2001. Because § 844(a) of the CSA, 21 U.S.C. § 844(a),
makes drug possession punishable by more than one year
of imprisonment—and hence a felony, see 18 U.S.C.
§ 3559(a)(5)—for those who have previously been con-
victed of a controlled substance offense, the IJ found by
clear and convincing evidence that Fernandez had been
convicted of an aggravated felony and was removable on
that basis. In addition, the IJ found Fernandez statutorily
ineligible for cancellation of removal. See 8 U.S.C.
§ 1229b(a)(3).
Fernandez appealed the IJ’s decision to the Board of
Immigration Appeals (“Board”). He argued that the IJ
should not have found that his convictions qualified as
an aggravated felony. The Board, however, agreed with
the IJ that a state offense for possession of a controlled
substance that occurred after a prior drug conviction
Nos. 06-3476, 06-3987 & 06-3994 5
qualified as a “drug trafficking crime” under
§ 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B),
because, under § 844(a) of the CSA, the most recent con-
viction would be defined as a felony. Consequently, the
Board affirmed the IJ’s decision. Fernandez filed a timely
petition in this court for review of the Board’s decision.
C. Florencio Victor Jimenez-Mateo (“Mateo”)
Mateo is a citizen of the Dominican Republic who was
admitted to the United States on an immigrant visa in
October 1966. On December 23, 1989, Mateo was con-
victed of possessing a controlled substance in violation
of New York Penal Law § 220.03. On April 26, 2002, Mateo
was convicted of attempted possession of a controlled
substance in violation of 720 ILCS 5/8-4. On April 12,
2006, Mateo received his third controlled-substance
conviction, this time for possession of a controlled sub-
stance in violation of 720 ILCS 570/402(c).
After his conviction in April 2006, DHS filed a notice to
appear charging that Mateo was removable under
§ 237(a)(2)(B)(I) of the INA, 8 U.S.C. § 1227(a)(2)(B)(I),
because of his April 2006 conviction for possession of a
controlled substance. At a hearing before an IJ, Mateo
through counsel conceded that he was removable as
charged, but sought cancellation of removal. In an oral
decision, the IJ found that Mateo was removable from
the United States as an alien convicted of a controlled
substance violation. The IJ also found that Mateo was
statutorily ineligible for cancellation of removal because
he had been convicted of an aggravated felony. In particu-
6 Nos. 06-3476, 06-3987 & 06-3994
lar, the IJ classified Mateo’s 2006 drug possession offense
as an aggravated felony, since that offense occurred after
Mateo had been convicted previously of two controlled
substance offenses. Mateo appealed the IJ’s aggravated
felony finding to the Board, but the Board affirmed the
IJ’s decision. Mateo then filed a timely petition for
review of the Board’s order affirming the IJ.
II.
The sole issue on this appeal is whether the second (or,
as is the case with Mateo, third) of each of the petitioners’
multiple state-court convictions for drug possession was
accurately characterized as an aggravated felony under
§ 101(a)(43)(B) of the INA. Section 101(a)(43) of the INA
provides an extensive list of crimes that qualify as aggra-
vated felonies. Specifically, subsection 101(a)(43)(B) adds
“illicit trafficking in a controlled substance . . . including
a drug trafficking crime (as defined in section 924(c) of
Title 18) . . . whether in violation of Federal or State law” to
that list. 8 U.S.C. § 1101(a)(43). Section 924(c), in turn,
defines the term “drug trafficking crime” as, among other
things, “any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C.
§ 924(c)(2). As the Supreme Court has stated, a state drug
offense is considered “analogous” to a “felony punishable
under the Controlled Substances Act,” and, as a result, an
aggravated felony for purposes of the INA, “only if it
proscribes conduct punishable as a felony under that
federal law.” Lopez v. Gonzales, 127 S. Ct. 625, 632 n.8, 633
(2006).
Nos. 06-3476, 06-3987 & 06-3994 7
In this case, the petitioners argue that their state con-
victions were wrongly classified as aggravated felonies
because the state statutes under which they were convicted
only proscribe simple possession, which is not a felony
under the CSA. In response, the government contends
that the petitioners’ most recent convictions for drug
possession are analogous to what the courts refer to as
“recidivist possession” under 21 U.S.C. § 844(a), which is
a felony under the CSA, because those convictions were
preceded by at least one prior drug possession convic-
tion. The pertinent portion of § 844(a) states:
It shall be unlawful for any person knowingly or
intentionally to possess a controlled substance. . . . Any
person who violates this subsection may be sentenced
to a term of imprisonment of not more than 1 year, and
shall be fined a minimum of $1,000, or both, except
that if he commits such offense after a prior convic-
tion under this subchapter or subchapter II of this
chapter, or a prior conviction for any drug, narcotic, or
chemical offense chargeable under the law of any
State, has become final, he shall be sentenced to a term
of imprisonment for not less than 15 days but not
more than 2 years, and shall be fined a minimum of
$2,500 . . . .
21 U.S.C. § 844(a). The second sentence in the portion of
§ 844(a) quoted above transforms what would ordinarily
be a misdemeanor offense for simple possession into a
felony where the current offense was preceded by a prior
conviction for a controlled substance offense. However, for
the government to obtain a felony conviction under
8 Nos. 06-3476, 06-3987 & 06-3994
§ 844(a), it has to, pursuant to 21 U.S.C. § 851, file notice of
the prior conviction and, if challenged, prove to the judge
the existence of the prior conviction beyond a reasonable
doubt. The petitioners therefore counter the government’s
argument by asserting that the Illinois statutes under
which the petitioners were most recently convicted are
not the state “counterparts” to a felony violation of
§ 844(a), since none of those statutes required the state of
Illinois to give notice of the petitioners’ prior convictions
or prove the existence of those convictions, as § 851
would have required had petitioners been prosecuted in
federal court. While Illinois law does provide for a sen-
tencing enhancement for recidivist drug possession, 720
ILCS 570/408(a), none of the petitioners’ sentences for
their most recent possession offenses was enhanced
under that provision.1 Thus, the real question in this
case is whether an alien’s second (or subsequent) state
conviction for simple drug possession amounts to an
aggravated felony in terms of a “felony punishable
under the Controlled Substances Act” when the state
did not treat the alien as a recidivist.
In this circuit, that question has already been answered,
albeit in a different context. Just before oral argument in
this case, this court decided United States v. Pacheco-Diaz
(Pacheco I), 506 F.3d 545 (7th Cir. 2007). In Pacheco I, this
court addressed the question of whether an alien’s
1
Illinois law requires that the defendant be given notice of the
state’s intention to seek such an enhancement in the charge.
725 ILCS 5/111-3(c).
Nos. 06-3476, 06-3987 & 06-3994 9
second state conviction for simple possession of marijuana
constituted an aggravated felony for purposes of determin-
ing a sentencing enhancement under § 2L1.2(b)(1)(C) of the
U nited States Sen te n c in g G u id elines. 2 Section
2L1.2(b)(1)(C) of the guidelines instructs a sentencing
court to enhance a defendant’s offense level eight levels
if the defendant previously was deported after a convic-
tion for an aggravated felony. The application notes to
§ 2L1.2 explain that, for purposes of subsection (b)(1)(C),
the term “aggravated felony” has the same meaning as
given in § 101(a)(43) of the INA. U.S.S.G. § 2L1.2 applica-
tion note 3(A) (2007). The district court had found that the
sentencing enhancement applied because, among other
things, Pacheco-Diaz’s January 2002 conviction for mari-
juana possession, following as it did an October 2000
conviction for marijuana possession, would be treated as
a federal felony under the recidivist enhancement provi-
sion of 21 U.S.C. § 844(a). Pacheco I, 506 F.3d at 548.
This court in Pacheco I agreed with that reasoning. In
our opinion, we first referenced footnote six of the Su-
preme Court’s opinion in Lopez v. Gonzales, wherein the
Supreme Court noted that Congress had indeed classified
a § 844(a) felony offense as “illicit trafficking,” thus bring-
ing that offense within the definition of an aggravated
felony under § 101(a)(43)(B) of the INA. Pacheco I, 506 F.3d
at 548. We recognized that a circuit split existed in the
2
Pacheco-Diaz had been convicted of reentering the United
States after previously having been deported, in violation of
8 U.S.C. §§ 1326(a) and (b)(2). Pacheco I, 506 F.3d at 547.
10 Nos. 06-3476, 06-3987 & 06-3994
sentencing context regarding the treatment of § 844(a)
with respect to the INA’s aggravated felony definition.
We sided with those circuits that analogized a second
state conviction for drug possession to § 844(a) when
determining whether that state conviction constituted an
aggravated felony for purposes of the sentencing guide-
lines. Id. at 549 (citing United States v. Palacios-Suarez, 418
F.3d 692, 700 (6th Cir. 2005); United States v. Sanchez-
Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005); United States
v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002)). “Had Pacheco
been charged in federal court with his second drug posses-
sion charge,” we stated, “he would have been eligible
for a recidivist enhancement under section 844(a).” Id. at
550. The second state possession conviction was
analogous to a felony under the CSA because § 844(a)
would have exposed Pacheco to a possible sentence of
imprisonment of two years had it been charged in federal
court. That made the conviction analogous to a “drug
trafficking crime” under § 924(c), and, as a consequence,
an aggravated felony under § 101(a)(43)(B) of the INA. Id.
Pacheco later petitioned for rehearing. Citing the oral
argument in this case, Pacheco argued that rehearing
should be granted because he had raised the same argu-
ment that petitioners raise here, namely, that a second
state drug-possession offense cannot be treated as a
federal felony under § 844(a) when the alien was not
charged in state court as a recidivist. The opinion in Pacheco
I, Pacheco asserted, overlooked that argument. Pacheco
also argued that this court in Pacheco I did not fully con-
sider the application of the Supreme Court’s decision
in Lopez v. Gonzales, 127 S. Ct. 625 (2006), in rendering
Nos. 06-3476, 06-3987 & 06-3994 11
its decision. Finally, Pacheco argued that rehearing
should be granted because two other circuits had decided
the issue differently after Pacheco I had been submitted.
We denied Pacheco’s motion for rehearing. United States
v. Pacheco-Diaz (Pacheco II), 513 F.3d 776 (7th Cir. 2008) (per
curiam). This court was not swayed by the fact that
Pacheco’s Illinois convictions were not based on that
state’s recidivist statute. Lopez, we said, held that classifica-
tion of an offense for the purpose of § 101(a)(43) depends
on how the defendant’s conduct would be treated under
federal law:
If the conduct of which the defendant has been con-
victed would be a felony under federal law, then it
comes within [§ 101(a)(43) of the INA] if it meets that
statute’s requirements concerning the subject-matter
of the crimes and the length of the sentence. . . . In a
hypothetical-federal-felony approach, it does not
matter whether the defendant was charged in state
court as a recidivist; indeed, it does not matter
whether the state has a recidivist statute in the first
place. What provides the classification under
[§ 101(a)(43)] is federal rather than state law.
Id. at 778-79. We concluded: “Looking at the conduct
reflected in the state convictions, as opposed to the
precise state crime charged, is the only way to implement
the hypothetical-federal-felony view that Lopez adopted
as its holding.” Id. at 779.
Shortly after oral argument, we ordered supplemental
briefing on the application of Pacheco I to this case. In
12 Nos. 06-3476, 06-3987 & 06-3994
their supplemental brief, the petitioners make several
arguments as to why Pacheco I does not apply to this case,
all of which we reject. First, the petitioners argue that
Pacheco I does not apply because it was a sentencing case,
while this is an immigration case. In support of that
argument, petitioners point out that this court in Pacheco I
cited only sentencing cases from other circuits on
the question of whether a second state possession con-
viction amounted to an aggravated felony; no reference
was made to any of the immigration cases dealing with
this issue. Compare Pacheco I, 506 F.3d at 549 (citing sen-
tencing cases that have dealt with this issue), with In re
Carachuri-Rosendo, 24 I&N Dec. 382, 385 (BIA 2007) (en
banc) (citing both immigration and sentencing cases). The
lack of citations to immigration cases in Pacheco I is insig-
nificant. We interpret the identical statutory provisions
in this case as the court did in Pacheco I. Our interpreta-
tion of the same statutes should be consistent, regardless
of the context. See Clark v. Martinez, 543 U.S. 371, 378
(2005) (“To give these same [statutory] words a different
meaning for each category [of aliens] would be to invent
a statute rather than interpret one.”); see also Leocal v.
Ashcroft, 543 U.S. 1, 12 n.8 (2004) (stating that statute
must be interpreted consistently whether it is encoun-
tered in a criminal or an immigration context).
Relying on dicta in Gonzales-Gomez v. Achim, 441 F.3d
532, 535-36 (7th Cir. 2006), petitioners nevertheless
insist that immigration cases call for a different inter-
pretation of the aggravated felony definition than sen-
tencing cases. The dicta in Gonzales-Gomez to which
petitioners refer was made in the context of distin-
Nos. 06-3476, 06-3987 & 06-3994 13
guishing sentencing decisions in other circuits from
holdings in this court. Regardless of what was said in
Gonzales-Gomez, any distinction between sentencing
and immigration for purposes of interpreting identical
provisions of the aggravated felony definition is fore-
closed after the Supreme Court’s decision in Lopez v.
Gonzales, 127 S. Ct. 625 (2006). In Lopez, the Supreme Court
drew no distinction between sentencing cases and immi-
gration cases. Though Lopez itself was an immigration
case, the Supreme Court cited—and its opinion abro-
gated—lower court sentencing cases. See Lopez, 127 S. Ct.
at 629 n.3 (citing, among other sentencing cases, United
States v. Wilson, 316 F.3d 506 (4th Cir. 2003), and United
States v. Simon, 168 F.3d 1271 (11th Cir. 1999)). Thus, the
Court clearly signaled that it meant any interpretation of
§ 101(a)(43) of the INA to apply uniformly, regardless of
the context.
Second, petitioners cite the Board’s decisions in In re
Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), and In re
Thomas, 24 I&N Dec. 416 (BIA 2007), as a reason to distin-
guish Pacheco I. Those cases were decided after the
Pacheco I opinion was released. In them, a majority of
the Board held that, absent controlling federal circuit
precedent to the contrary, an alien’s state conviction
for simple possession of a controlled substance “will not
be considered an aggravated felony conviction on the
basis of recidivism unless the alien’s status as a recidivist
drug offender was either admitted by the alien or deter-
mined by a judge or jury in connection with a prosecution
for that simple possession offense.” Carachuri, 24 I&N Dec.
at 394. Board Member Roger Pauley filed a concurring
14 Nos. 06-3476, 06-3987 & 06-3994
opinion in Carachuri, joined by Acting Vice Chairman
Gerald Hurwitz, taking the opposite view. See id. at 400.
We fail to see how the Board’s decision to spurn Pacheco
I affects the outcome in this case. This court in Pacheco II
was unconcerned about the Board’s about-face in Carachuri.
We not only explicitly stated in Pacheco II that we
agreed with the reasoning of Board Member Pauley’s
concurring opinion, but also that we disagreed with
the majority of the Board’s conclusion that a state posses-
sion offense could only be an aggravated felony if the
alien was treated as a recidivist in state court. 3 Pacheco II,
513 F.3d at 778. We see no reason to deviate from that view.
Next, the petitioners argue that Pacheco I should not
apply here because the court in Pacheco I was not pre-
sented with what, according to the petitioners, is the “key
legal issue” raised in this case, namely, “whether an
immigrant who was not charged and convicted as a
recidivist in criminal court” can nevertheless be labeled
an aggravated felon. Petitioners argue that Lopez mandates
a “strict categorical approach” that allows courts to
examine only what the state statutory offense under
which the immigrant was charged proscribes when
determining whether federal law defines the offense as
a felony. See Taylor v. United States, 495 U.S. 575, 602 (1990).
Because none of the petitioners was charged as a
3
Judge Rovner dissented in Pacheco II and, citing the majority
of the Board’s decision in Carachuri, stated that she believed the
approach this court took in Pacheco I may have been mistaken.
Pacheco II, 513 F.3d at 781 (Rovner, J., dissenting).
Nos. 06-3476, 06-3987 & 06-3994 15
recidivist in state court, petitioners argue that their state
possession offenses cannot be treated as “analogous” to
recidivist possession under § 844(a) for purposes of the
aggravated felony definition.
There are two problems with that line of argument. First,
arguably raised in both Pacheco’s initial and reply briefs,4
it was treated by the court in the passages of the Pacheco II
opinion we have quoted above. Second, and more impor-
tantly, it does not survive scrutiny on the merits. Ordi-
narily, in order to determine whether a state offense is
“analogous” 5 to a federal offense listed in the INA’s
definition of an aggravated felony, this court and others
categorically compare the elements of the state offense
with the elements of the federal offense. See, e.g., Gonzales
v. Duenas-Alvarez, 127 S. Ct. 815, 818-19 (2007); see also
Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005). We
explained the operation of the so-called “categorical”
approach in Gattem: “one looks to the elements of the
state offense in question and, where necessary, to the
charging document pursuant to which the petitioner
4
See Brief of Defendant-Appellant at 27-29, United States v.
Pacheco-Diaz, No. 05-2264 (7th Cir. May 8, 2006); Reply Brief of
Defendant-Appellant at 2-6, United States v. Pacheco-Diaz, No. 05-
2264 (7th Cir. Sept. 22, 2006).
5
“Analogous” is the term that was used by the Supreme Court
for determining whether a state offense, when compared to a
federal offense listed in § 101(a)(43) of the INA, qualifies as
an aggravated felony. Lopez, 127 S. Ct. at 632 n.8 (citing Matter
of Barrett, 20 I&N Dec. 171, 178 (BIA 1990)).
16 Nos. 06-3476, 06-3987 & 06-3994
was convicted, to determine whether the offense corre-
sponds to one of the crimes described as aggravated
felonies in the INA.” 412 F.3d at 765.
While that approach works for many cases, applying a
strict categorical approach in this case does not resolve
the issue of whether the petitioners’ multiple drug
offenses qualify as aggravated felonies. The elements of
the Illinois possession offenses the petitioners committed
and the elements of both a felony and a misdemeanor
violation of § 844(a) are the same. Compare United States v.
Stone, 139 F.3d 822, 834 (11th Cir. 1998) (describing ele-
ments of a § 844(a) possession offense), with People v.
Frieberg, 589 N.E.2d 508, 524 (Ill. 1992) (describing elements
of a violation of 720 ILCS 570/402), People v. Davis, 519
N.E.2d 103, 105 (Ill. App. Ct. 1988) (describing elements
of Illinois offense of possession of a controlled sub-
stance), and 2 Illinois Pattern Jury Instruction-Criminal
17.02 (4th ed. 2000) (describing elements of possession of
cannabis in violation of 720 ILCS 550/4). Recidivism is the
key ingredient in differentiating between a felony and a
misdemeanor offense for drug possession under federal
law. However it is not an element of the offense of drug
possession, but instead is simply a penalty provision. It
enhances the maximum possible sentence for a drug
possession offense from one to two years if the defendant
commits the offense after a prior conviction for a con-
trolled substance offense has become final. See 21 U.S.C.
§ 844(a); see also Almendarez-Torres v. United States, 523 U.S.
224, 244 (1998) (“Congress . . . has never, to our knowledge,
made a defendant’s recidivism an element of an offense
where the conduct proscribed is otherwise unlawful.”);
Nos. 06-3476, 06-3987 & 06-3994 17
Stone, 139 F.3d at 834. Thus, the fact that the state offense
of conviction did not contain a recidivist element is irrele-
vant. What makes a state offense for drug possession
analogous to a federal felony (and thus an aggravated
felony) as opposed to a federal misdemeanor is the height-
ened penalty for recidivism, which is not an element of
the offense.
The dissent points out that Justice Thomas’s concurrence
in Apprendi signals that Almendarez-Torres may not be the
law of the land much longer. Infra at 38 n.3. But until
the Supreme Court explicitly overrules that case, we are
bound by it. See United States v. Hendrix, 509 F.3d 362, 375
(7th Cir. 2007) (“[W]e have held that unless and until
the Supreme Court chooses to overrule Almendarez-Torres,
we are bound by it.” (citing cases)); see also Calloway v.
Montgomery, 512 F.3d 940, 946 (7th Cir. 2008) (“Almendarez-
Torres still lives.”); see generally Saban v. U.S. Dep’t of Labor,
509 F.3d 376, 378 (7th Cir. 2007) (“The Supreme Court
has told the lower courts that they are not to anticipate
the overruling of a Supreme Court decision, but are to
consider themselves bound by it until and unless the
Court overrules it, however out of step with current trends
in the relevant case law the case may be.”). Almendarez-
Torres, along with the language and structure of § 844(a),
makes clear that the heightened penalty for recidivism
is not an element of a § 844(a) offense. Because recidivism
is not an offense element, a categorical comparison of the
elements of § 844(a) and the petitioners’ most recent
state possession offenses is inconclusive.
Although the categorical approach does not settle the
matter, Lopez does. The Supreme Court in Lopez held that
18 Nos. 06-3476, 06-3987 & 06-3994
a state drug felony was not an aggravated felony where
the conduct proscribed by the state felony would have
only been penalized as a misdemeanor under federal law.
According to Lopez, what counts is the classification of the
analogous federal offense as a felony. The state’s deci-
sion to classify the offense as a felony or a misdemeanor
is beside the point. See Lopez, 127 S. Ct. at 632-33 (“We
cannot imagine that Congress took the trouble to incorpo-
rate its own statutory scheme of felonies and misdemean-
ors if it meant courts to ignore it whenever a State chose
to punish a given act more heavily.”).
In this case, the increased penalty that converts a
simple misdemeanor offense for drug possession into a
felony, like the lesser penalty for the offense that was the
subject of Lopez, 127 S. Ct. at 628, is purely a matter of
federal law. Again, Lopez tells us that, when it comes to
determining the consequences of a state offense for pur-
poses of federal immigration law, federal law, not state
law, counts. While the state of Illinois conceivably could
have enhanced the petitioners’ state sentences under the
Illinois provision similar to § 844(a),6 that is beside the
point. The question is whether the petitioners would
have been subject to the increased penalty for having
committed a prior drug offense had they been charged
in federal court. As none of the petitioners disputes the
existence of their prior convictions, the answer to that
inquiry here must be “yes”; the petitioners’ most recent
state possession offenses are therefore properly classified
as aggravated felonies.
6
See 720 ILCS 570/408(a).
Nos. 06-3476, 06-3987 & 06-3994 19
What the petitioners really object to, of course, is this
court looking at the petitioners’ prior drug convictions
in order to determine that their most recent convictions
constitute aggravated felonies. They say that our going
beyond the record of the most recent state offense is not
allowed by Lopez, and that we are in effect “retrying” those
offenses by doing so. But transcending the state offense
in order to determine its analogous federal counterpart is
exactly what the aggravated felony statute and Lopez
require. Section 101(a)(43) of the INA states that the term
aggravated felony “applies to an offense described in this
paragraph whether in violation of Federal or State law.”
8 U.S.C. § 1101(a)(43). In order to determine if a state
offense is “described” by a federal offense incorporated
into § 101(a)(43), we necessarily have to view the state
offense through the lens of federal law, since “it is just
not plausible that Congress meant to authorize a State to
overrule its judgment about the consequences of federal
offenses to which its immigration law expressly refers.”
Lopez, 127 S. Ct. at 633.
Moreover, going beyond the fact of the most recent
possession conviction to make that determination is
entirely consistent with Taylor v. United States, 495 U.S. 575
(1990). In Taylor, the Court adopted a “modified” categori-
cal approach, under which, where a defendant was con-
victed of a state law burglary offense that was broader
than the generic definition of burglary, a sentencing
court could “go beyond the mere fact of conviction” to
determine whether the “jury was actually required to find
all the elements of generic burglary.” Taylor, 495 U.S. at
602. Thus, where a state statute permitted a defendant to
20 Nos. 06-3476, 06-3987 & 06-3994
be convicted of burglary for stealing from a place other
than a building (such as an automobile), the government
could still use that conviction for purposes of obtaining
an enhancement under the Armed Career Criminal Act if
it could show, from the charging document and the
jury instructions, that the defendant was actually con-
victed of stealing from a building (and not an auto-
mobile). Id.7
This case is simply a corollary application of the ap-
proach explicitly recognized as permissible in Taylor. Here,
because the definition of the Illinois possession offenses
un d er w hic h p etitioners w ere con victed are
overbroad—i.e., conduct punishable under those Illinois
statutes could constitute either a federal misdemeanor
or federal felony, depending on whether those offenses
occurred after a previous drug conviction became fi-
nal—we must look at the records of the petitioners’ prior
convictions to determine the federal consequences of the
petitioners’ offenses. Importantly, in so doing, we, consis-
tent with Taylor, need not delve into the underlying facts
of the petitioners’ state convictions. See Taylor, 495 U.S. at
600 (“Congress intended the sentencing court to look only
7
In Shepard v. United States, 544 U.S. 13 (2005), the Court
extended that approach to the context of guilty pleas, holding
that a sentencing court may consider “the terms of the charging
document, the terms of a plea agreement or transcript of [a
plea] colloquy between judge and defendant [or] some com-
parable judicial record” in determining whether the defendant
actually pleaded guilty to, and was convicted of, generic
burglary. Id. at 26.
Nos. 06-3476, 06-3987 & 06-3994 21
to the fact that the defendant had been convicted of crimes
falling within certain categories, and not to the facts
underlying the prior convictions.”); Pacheco II, 513 F.3d
at 778-79.
The dissent is rightly concerned with the danger of
“hypothetical ‘what-ifing.’ ” Infra at 31-32. But that concern
is not present in this case. In finding that the petitioners’
state court offenses qualify as aggravated felonies, we are
not looking at the real offense conduct underlying
the petitioners’ state offenses in order to conjure up a
hypothetical state offense that is then analogous to a
hypothetical federal offense. Rather, we are only looking
at the state offenses for which the petitioners were in fact
convicted: a state drug possession offense after a previous
drug offense. (Notably, none of the petitioners contest the
fact that they have such a record.)
We respectfully suggest that it is only the dissent that
is dealing in hypotheticals. The offense that the dissent
implies the petitioners ought to have been convicted of
in state court to qualify as aggravated felons—i.e., a
possession offense with a recidivist element—does not
currently exist in Illinois. Illinois’s sentencing enhance-
ment for recidivist drug possession, like § 844(a), does not
create a separate offense for “recidivist possession.” See
720 ILCS 570/408(a); 725 ILCS 5/111-3(c) (“[T]he fact of
such prior conviction and the State’s intention to seek
an enhanced sentence are not elements of the offense
and may not be disclosed to the jury during trial . . . .”); see
also People v. Bradford, 543 N.E.2d 918, 930 (Ill. App. Ct.
1989).
22 Nos. 06-3476, 06-3987 & 06-3994
Petitioners bring to our attention two immigration cases
from other circuits, not cited in either Pacheco I or Pacheco
II, that have decided this issue differently. See Berhe v.
Gonzales, 464 F.3d 74 (1st Cir. 2006); Steele v. Blackman, 236
F.3d 130 (3d Cir. 2001).8 In those cases, the courts decided
that subsequent state possession offenses were not aggra-
vated felonies because the records of conviction for
those state offenses did not reveal that the state courts
followed procedures analogous to those outlined in 21
U.S.C. § 851. Steele, 236 F.3d at 137-38; see also Berhe, 464
F.3d at 85-86. (Recall that § 851 requires the government
to file an information alleging the prior drug conviction
and prove it, if contested, beyond a reasonable doubt to
a judge.) The Third Circuit in Steele based its decision
in large part on its concern about the fairness of trans-
forming two state misdemeanors into an aggravated
felony. According to the Third Circuit, defendants do not
address misdemeanor charges with the same caution
and care as a felony indictment. If states did not have
procedures similar to § 851 in place, the Third Circuit
reasoned, then defendants would not realize the grave
immigration consequences that would attach to their
misdemeanor plea.9 Steele, 236 F.3d at 137.
8
After this case was briefed and argued, the Sixth Circuit
decided Rashid v. Mukasey, 531 F.3d 438 (6th Cir. 2008), wherein
the Sixth Circuit reached the same conclusion as the First
Circuit in Behre and the Third Circuit in Steele.
9
The Third Circuit’s concern also stemmed from a de-
sire—echoed by the dissent, see infra at 34-35—to assure that
(continued...)
Nos. 06-3476, 06-3987 & 06-3994 23
We “carefully consider the opinions of our sister cir-
cuits.” Klein v. DePuy, Inc., 506 F.3d 553, 558 (7th Cir. 2007).
In this instance, we are unpersuaded by what, in our
view, is a misdirected approach to the issue before us. The
Third Circuit’s fairness concern is inconsistent with
Lopez; Lopez holds clearly that state felony-misdemeanor
classifications are meaningless for purposes of deter-
mining whether a state offense is an aggravated felony
under the immigration laws. Moreover, the First and
Third Circuits, in requiring the record of an alien’s most
recent state-court possession conviction to demonstrate
that some form of the procedures outlined in § 851 were
followed in state court, essentially elevate those proce-
dures to the level of an element of the offense. See Steele,
236 F.3d at 137 (“While the status of being ‘a one time
loser’ is not technically an element of the offense pro-
scribed by § 844, we agree with the District Court that it
can be treated as such.”); see also Berhe, 464 F.3d at 85-86;
Gerbier v. Holmes, 280 F.3d 297, 317 (3d Cir. 2002). The
9
(...continued)
defendants were not found to be aggravated felons on the basis
of constitutionally invalid prior convictions. See Steele, 236
F.3d at 138 (“For all that the record before the immigration
judge reveals, the initial conviction may have been constitu-
tionally impaired.”); see also Rashid, 531 F.3d at 447 (quoting
Steele). Such a concern does not apply here, however, because
ordinarily aliens in removal proceedings are not permitted to
collaterally challenge their convictions. See, e.g., Taylor v. United
States, 396 F.3d 1322, 1330 (11th Cir. 2005); Trench v. INS,
783 F.2d 181, 184 (10th Cir. 1986).
24 Nos. 06-3476, 06-3987 & 06-3994
problem with that approach is that the § 851 procedures
are clearly not an element of a § 844(a) offense.1 0 We do not
doubt, of course, that a federal defendant charged under
§ 844(a) could not receive a felony sentence unless the
government complied with the procedures in § 851 for
providing notice and proof of a prior drug conviction.
See United States v. LaBonte, 520 U.S. 751, 754 n.1 (1997);
Harris v. United States, 149 F.3d 1304, 1306 (11th Cir. 1998).
But we do not see any reason to require that a state
have followed the exclusively federal procedures set forth
in § 851 in order for a state offense to qualify as an aggra-
vated felony. Such a requirement, to us, would run con-
trary to the aggravated felony statute’s clear language
that an “offense described in” that statute qualifies as an
aggravated felony “whether in violation of Federal or
State law.” 8 U.S.C. § 1101(a)(43). Thus, we respectfully
disagree with those circuits that hold otherwise.
Petitioners make one other argument that merits atten-
tion. They argue that, if we follow the rule of Pacheco I
here, then a second federal misdemeanor conviction for
simple drug possession could be treated as if it were a
federal felony, despite the fact that such a conviction is
clearly not a felony under federal law. They argue that
such a result “turn[s] the Lopez standard on its head.” We
10
Indeed, the statute explicitly states that the existence or
validity of a prior conviction, if challenged, is to be determined
by the court, not a jury. 21 U.S.C. § 851(c) (“The court shall
hold a hearing to determine any issues raised . . . . The hearing
shall be before the court without a jury . . . .”).
Nos. 06-3476, 06-3987 & 06-3994 25
are quite skeptical that such a result follows from reaf-
firming Pacheco I. The petitioners’ argument presumes
that one could analogize misdemeanor violations of a
federal offense specifically incorporated into the aggra-
vated felony definition to a felony violation of the same
incorporated federal offense. Analogizing makes sense
when determining whether a state conviction qualifies as
an aggravated felony. The statute says that offenses
described in the aggravated felony definition count
“whether in violation of Federal or State law.” Id. As most
of the offenses listed in or incorporated into the aggra-
vated felony definition (besides the generic offenses
such as murder and rape) are strictly federal, some
mode of comparing state crimes to those federal crimes
is necessary. But analogizing makes little sense when
dealing with a conviction for a federal offense, like § 844(a),
that is specifically incorporated into the aggravated
felony definition. Since those federal statutes are specifi-
cally referenced in the aggravated felony definition, there
is no need to compare anything. A violation of one of those
statutes either is, or is not, a felony, and thus is, or is not,
an aggravated felony.
We need not pursue the matter any further. The hypo-
thetical the petitioners pose implicates other concerns
not present in a case, such as this one, where the main
question revolves around analogizing a state offense to a
federal offense specifically incorporated into the aggra-
vated felony definition.
Finding none of the petitioners’ arguments persuasive,
we conclude that the rule of Pacheco I does apply, and
26 Nos. 06-3476, 06-3987 & 06-3994
that the Board and DHS did not err in finding that the
petitioners were statutorily ineligible for cancellation of
removal on the basis of their having been convicted of
an aggravated felony.
III.
Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007), controls this
case. Thus, each of the petitioners’ most recent state court
convictions for drug possession constituted an aggra-
vated felony under the INA because each occurred after
a previous drug conviction became final. We A FFIRM .
R OVNER, Circuit Judge, dissenting. The three petitioners
in this case all have criminal records that include two or
more misdemeanor convictions for simple possession of
an illegal drug. None has a felony conviction. The distinc-
tion between felony convictions and misdemeanor con-
victions is critical to non-citizens who are subject to
removal from this country. (It is also of great import to
those being considered for certain sentencing enhance-
ments under the Sentencing Guidelines, but this is a
topic for another time.) Ordinarily persons subject to
removal may petition the United States Attorney General
and ask that he use his discretion to cancel a removal
Nos. 06-3476, 06-3987 & 06-3994 27
order. 8 U.S.C. § 1229b(a). The Attorney General, however,
has no discretion to cancel the removal of a person who
has been convicted of an aggravated felony. 8 U.S.C.
§ 1229b(a)(3). The battle over what constitutes an aggra-
vated felony, therefore, recurs with some frequency and
fervor in immigration cases. The answer may mean the
difference between the possibility of staying in this country
or leaving behind family, children, and the homes the
petitioners may have known their whole lives. Florencio
Victor Manuel Jimenez-Mateo has lived in this country
for approximately forty-two of his fifty-six years. He has
been a lawful permanent resident since 1971. If deported,
he will be leaving behind his job, his two United States
citizen children and the country he has called home
since his early teens. Julio Cesar Calderon has lived in
this country for twenty of his twenty-eight years. He
has two United States citizen children who reside here.
Omar Cendejas-Fernandez is twenty-five years old and
has lived in this country legally since 1992. They have
each been convicted of two (and in one case three) misde-
meanor crimes. Whether the law requires us to consider
these men’s multiple convictions for misdemeanor drug
crimes as felonies for purposes of removal proceedings
is critical to them, as it will be to many others.
The answer lies buried in a maze of cross-referenced
immigration and criminal statutes. Because the majority
has expertly set forth each of the statutes, I need only trace
through them in a cursory fashion. The Immigration
and Nationality Act (INA) defines “aggravated felony”
with a list of crimes that includes drug trafficking. 8
U.S.C. § 1101(a)(43)(B). It also notes that “[t]he term
28 Nos. 06-3476, 06-3987 & 06-3994
[aggravated felony] applies to an offense described in
this paragraph whether in violation of state or federal
law.” Id. at § 1101(a)(43). The INA then points readers to
the criminal code (specifically 18 U.S.C. § 924(c)) for a
definition of a drug trafficking crime. That section of the
criminal code, in turn, defines a drug trafficking crime as
“any felony punishable under the Controlled Substances
Act.” 18 U.S.C. § 924(c)(2). And finally, the Controlled
Substances Act (CSA) turns a second-time drug conviction
into a felony if the government files the necessary infor-
mation with the court and serves it upon the defendant.
21 U.S.C. § 844, § 851. If this convoluted path has made the
weary reader’s eyes glaze over, they must come into focus
here, for the petitioners win or lose based on how the
Supreme Court instructs the lower courts to decide
whether a particular state crime falls within the rubric of
the CSA. The Supreme Court, in Lopez v. Gonzales, 549 U.S.
47, 127 S. Ct. 625, 633 (2006), declared that a state drug
offense is analogous to a felony punishable under the
Controlled Substances Act “only if it proscribes conduct
punishable as a felony under that federal law.” Id.
Some courts, including our own, have described the
Supreme Court’s approach in Lopez as the “hypothetical
federal felony approach.” See, e.g., Escobar Barraza v.
Mukasey, 519 F.3d 388, 390 (7th Cir. 2008); U.S. v.
Pacheco-Diaz, 513 F.3d 776, 779 (7th Cir. 2008) (“Pacheco-
Diaz II”); see also Rashid v. Mukasey, 531 F.3d 438, 443 (6th
Cir. 2008); In re Carchuri-Rosendo, 24 I&N Dec. 382, 396
(BIA 2007) (Pauley, J., concurring). In following the hypo-
thetical federal felony approach, we look to see whether
Nos. 06-3476, 06-3987 & 06-3994 29
a defendant’s conviction would have been a felony if the
defendant had been prosecuted under federal law. Lopez,
127 S. Ct. at 632-33; Gonzales-Gomez v. Achim, 441 F.3d 532,
535 (7th Cir. 2006). Under this approach, the phrase “ ‘any
felony punishable under the CSA’ is read ‘to mean any
conviction punishable as a felony under the CSA.’ ” Rashid,
531 F.3d at 442-43. The Lopez Court did not describe
its methodology as a “hypothetical federal felony ap-
proach,” and, in fact, the term “hypothetical” does not
appear anywhere in the majority opinion. That is not to
say that the term “hypothetical federal felony” is inapt.
It simply requires additional parameters lest it grasps
within its reach more than Congress intended. It does
not, for example, allow an immigration court to deter-
mine that conduct for which a defendant was never
charged and never convicted would have been a felony if
the government had, hypothetically, prosecuted the
defendant under federal law. See, e.g., Rashid, 531 F.3d at
445 (“We conclude that inclusion of the word ‘hypothetical’
in the ‘hypothetical federal felony’ approach does not
provide the government with free reign to make ex-post
determinations of what federal crimes an individual
could hypothetically have been charged with where, as
here, a prior drug-possession conviction was not at issue
in the prosecution of the subsequent drug-possession
offense.”); In re Carachuri-Rosendo, 24 I&N Dec. at 393
(noting that a pure “hypothetical approach would autho-
rize Immigration Judges to collect a series of disjunctive
facts about the respondent’s criminal history, bundle
them together for the first time in removal proceedings,
and then declare the resulting package to be ‘an offense’
that could have been prosecuted as a Federal felony.”)
30 Nos. 06-3476, 06-3987 & 06-3994
The additional parameters needed to constrain the
hypothetical federal felony come from the categorical
approach which requires that, when determining which
state crimes Congress intended to treat as aggravated
felonies for the purposes of the INA, the court must look
only to the elements of the state offense in question
(and, when necessary to the charging document) to deter-
mine whether the offense corresponds to one of the
crimes described as an aggravated felony under the INA.
Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005); see
also Taylor v. United States, 495 U.S. 575, 602 (1990) (the
categorical approach “generally requires the trial court
to look only to the fact of conviction and the statutory
definition of the prior offense.”). The hypothetical federal
felony and the categorical approach are not mutually
exclusive. A court can, and indeed must use the
categorical approach in applying the hypothetical
federal felony. This is precisely the methodology the
Lopez Court required when it announced that, “a state
offense constitutes a felony punishable under the Con-
trolled Substances Act only if it [that is, the state offense]
proscribes conduct punishable as a felony under that
federal law.” Lopez, 127 S. Ct. at 633. In other words, one
looks to the description of the state offense to see
whether the elements enunciated in that offense corre-
spond to a federal felony.
The majority states that a strict categorical approach
does not settle the matter in this case, but application of
Lopez does. Ante at 17. This implies, however, that Lopez
does not require the use of the categorical approach. In
fact, Lopez demands that the categorical approach and
Nos. 06-3476, 06-3987 & 06-3994 31
the hypothetical federal felony be applied together.
Lopez specifically instructs that, when deciding if a state
offense constitutes a felony under the CSA, a tribunal
must look at the conduct proscribed by the state offense.
Lopez, 127 S. Ct. at 633 (emphasis added). Of course, the
conduct proscribed by the state offense may not always
be identical to the defendant’s conduct. There is no
doubt, as the majority points out (ante at 18) that the
state’s decision to classify the offense as a felony or a
misdemeanor is irrelevant and the only definition that
matters is the one the federal government uses to define
the behavior. But this statement skirts the issue. We still
need to identify which behavior we must plug into the
federal classification system. Lopez tells us that it is the
behavior described in the state offense.
This amalgam of the hypothetical federal felony and
categorical approaches means that immigration courts
may not independently assess a defendant’s conduct to
determine whether such conduct would warrant a
federal felony conviction, if, for example, the government
had sufficient evidence to charge the defendant, if the
defendant had not pled to lesser charges, if the critical
evidence had not been suppressed, if a jury had found
sufficient evidence of guilt, if all appeals had been unsuc-
cessful, or if the government had opted to charge
the defendant as a recidivist. Lopez constrains our hypo-
thetical “what-ifing” to consideration of the conduct
proscribed in the offense of conviction, and does not
allow us to consider whether the defendant engaged in
some other conduct that would have been a federal
felony if a long chain of possibilities (or even one) had
32 Nos. 06-3476, 06-3987 & 06-3994
come to fruition. Due to prosecutorial decision making,
limited resources, legal strategy, and other factors, state
prosecutors often charge and convict defendants of of-
fenses that significantly under-represent the actual
conduct of the defendant. It is true that in this way, state
prosecutorial decisions will affect the Department of
Homeland Security’s (DHS’s) ability to remove an alien
pursuant to federal immigration law. DHS, however,
cannot skip the inconvenient and cumbersome hurdles
imposed by criminal procedure and base decisions on
convictions a state court hypothetically could have se-
cured. When we begin to compare “an offense a defend-
ant could have been charged with in state court with
an offense the defendant could have been charged with
in federal court,” we have reached “one too many levels
of hypothetical application.” Pacheco-Diaz II, 513 F.3d at
781. As the Third Circuit concluded when considering
the identical issue, “[o]ne cannot suffer the disabilities
associated with having been convicted of an aggra-
vated felony unless one has been convicted of a felony.”
Steele v. Blackman, 236 F.3d 130, 136 (3d Cir. 2001) (empha-
sis in original). Without the normal protections in place
when criminal history is vetted before a court, we risk
relying on constitutionally infirm convictions and
elevating minor infractions into felonies in a manner
unintended by Congress.
In fact, Congress recognized the inherent danger of
relying on prior convictions to turn a simple mis-
demeanor drug offense into a recidivist felony when it
drafted § 844 and § 851 of the criminal code. Under
21 U.S.C. § 851(a)(1), before the government may rely
Nos. 06-3476, 06-3987 & 06-3994 33
upon a prior conviction for sentencing purposes, it must
file with the court, and serve on defense counsel an
information revealing the previous convictions upon
which it will rely. Id. The court must then give the defen-
dant an opportunity to challenge the prior conviction
and, if the defendant denies the allegations or validity of
the prior conviction, hold a hearing in which the gov-
ernment must prove the validity or existence of the
prior conviction beyond a reasonable doubt. Id. at (c)(1).1
The requirements of § 851(a) are not pro forma. If the
government fails to file such notice, the court cannot
use the prior conviction to enhance the penalty. United
States v. LaBonte, 520 U.S. 751, 754 n.1 (1997); United States
v. Arreola-Castillo, No. 06-4055, 2008 WL 3892142 at *3 (7th
Cir. August 25, 2008). The majority has gone to great
lengths to highlight that the only thing that counts under
Lopez is the federal government’s classification system
(ante at 18), but it is the federal classification system that
makes it clear that there can be no felony conviction
under § 844(a) for a second or more drug offense unless
the government gives the court and the defendant notice
that it intends to use the prior convictions. 21 U.S.C. § 851.
1
A person may not challenge the validity of a prior conviction
that is more than five years old. 21 U.S.C. § 851(e). One of the
three petitioners here, Jiminez-Mateo, would have been barred
from challenging the validity of his first possession offense.
Presumably, however, he was still permitted to deny an al-
legation of the information of a prior conviction as indicated
in § 851 (c)(1). Furthermore, the notice requirements of 21
U.S.C. § 851(a) would still have applied.
34 Nos. 06-3476, 06-3987 & 06-3994
Framed another way, the majority’s certain conclusion
that the petitioners would have been subject to an in-
creased penalty had they been charged in federal court is
incorrect. The majority states:
While the state of Illinois conceivably could have
enhanced the petitioners’ state sentences under the
Illinois provision similar to § 844(a), that is beside
the point. The question is whether the petitioners
would have been subject to the increased penalty for
having committed a prior drug offense had they been
charged in federal court. As none of the petitioners
disputes the existence of their prior convictions, the
answer to that inquiry here must be “yes”; the petition-
ers’ most recent state possession offenses are there-
fore properly classified as aggravated felonies.
Ante at 18 (emphasis in original) (footnote omitted). The
petitioners, however, would have been subject to the
increased penalty only if they had been charged as repeat
offenders under 21 U.S.C. § 851. And that is a big “if.”
After all, they were not charged as repeat offenders in state
court. This is the “one too many levels of hypothetical”
with which we were concerned in Pacheco-Diaz. See Pacheco-
Diaz II, 513 F.3d at 781.
The requirements of § 851(a) are not without good
reason. As the Sixth Circuit noted, “many misdemeanor
or lesser convictions are processed under questionable
circumstances and may be found invalid if challenged.”
Rashid, 531 F.3d at 447 (citing the brief amici curiae of the
Criminal Defense Attorneys of Michigan and the New
York State Defenders Association). The Third Circuit
too commented on the danger of relying on a previous
Nos. 06-3476, 06-3987 & 06-3994 35
misdemeanor where its existence and constitutional
integrity was never litigated as part of any criminal
proceeding. Steele, 236 F.3d at 137-38. The Board of Immi-
gration Appeals, after weighing these concerns, concluded
that unless constrained by circuit law otherwise, “an
alien’s State conviction for simple possession will not be
considered an aggravated felony conviction on the basis
of recidivism unless the alien’s status as a recidivist drug
offender was either admitted by the alien or determined
by a judge or jury in connection with a prosecution for
that simple possession offense.” In re Carachuri-Rosendo, 24
I&N Dec. at 394. In so concluding, the Board noted that its
approach differed from this Circuit’s approach in Pacheco-
Diaz. Although constrained by the binding precedent of
Pacheco-Diaz in this Circuit, the Board has stated that it
will decline to follow the Pacheco-Diaz approach else-
where. It is now my position that the Board and our
sister courts in the First, Third, and Sixth Circuits have the
better view. See, e.g., Rashid v. Mukasey, 531 F.3d 438 (6th
Cir. 2008); Berhe v. Gonzlaez, 464 F.3d 74 (1st Cir. 2006);
Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001). In short, a
conviction for simple misdemeanor possession in which
a court has never adjudicated or considered the fact or
validity of a prior conviction should not be equated with
a recidivist possession conviction under 21 U.S.C. § 844(a).
One more scenario adds weight to this conclusion. If the
majority’s contrary theory is correct, then a federal defen-
dant who has been convicted of two separate federal
misdemeanor possession crimes could be deemed an
aggravated felon despite the government’s failure to
comply with the absolute requirements of 21 U.S.C. § 851.
36 Nos. 06-3476, 06-3987 & 06-3994
But we know in no uncertain terms that the govern-
ment may not engage the recidivist portion of § 851
without meeting all of the requirements of that section.
LaBonte, 520 U.S. at 754 n.1. The majority dismisses this
paradox by stating that is skeptical that such a result
would follow. State violations, it argues, must be com-
pared with and then molded into the analogous federal
offense of 21 U.S.C. § 844(a). Federal violations under
§ 844(a), the majority argues on the other hand, need not
be compared to anything, and so they become recidivist
crimes only if the government follows the dictates of § 851.
This rationale is confusing. If the federal government
deems it necessary to give a federal defendant the
protections of § 851 (notice, opportunity to respond etc.)
before subjecting that defendant to felony charges as a
repeat offender under § 844(a), why would state recidi-
vists—whose crimes are being analogized into the rubric of
§ 844(a)—not require the same protections? Surely Con-
gress does not have more confidence in the validity of
convictions from the thousands of (ofttimes minuscule,
isolated, and under-resourced) state courts around the
country than it has in its own federal courts. In any event,
it seems clear that Congress intended for recidivists to be
charged as recidivists before a court may pile on to the
punishment.
This is not to say that a state recidivist law must mirror
21 U.S.C. § 851 precisely before a state recidivist can be
labeled a felon pursuant to 21 U.S.C. § 844(a). One might
imagine that as long as a defendant has some form of
notice of and opportunity to challenge the prior convic-
tion, then the state offense would qualify as a conviction
Nos. 06-3476, 06-3987 & 06-3994 37
punishable under the CSA and thus meet the standard
declared in Lopez.2 The Sixth Circuit, in considering
this question, concluded that “[p]rovided that an individ-
ual has been convicted under a state’s recidivism
statute and that the elements of that offense include a
prior drug-possession conviction that has become final
at the time of the commission of the second offense, then
that individual, under the categorical approach, has
committed an aggravated felony under § 844(a).” Rashid,
531 F.3d at 448 (emphasis in original); accord In re Car-
achuri Rosendo, 24 I&N Dec. at 391 (“State recidivism
prosecutions must correspond to the CSA’s treatment of
recidivism by providing the defendant with notice and an
opportunity to be heard on whether recidivist punishment
is proper.”). At this juncture we need not determine how
closely the state notice and opportunities to challenge must
resemble those in the federal rule. In each of the cases
presented here, the petitioners were convicted of simple
misdemeanors with no mention of any prior conviction.
The conduct prohibited by the offenses for which they
were convicted was simple possession—a crime not
punishable as a felony under the CSA.
The majority hangs its hat on our recent decision in
United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007)
(Pacheco-Diaz I), a sentencing enhancement case, wherein
we concluded that the defendant’s second misdemeanor
2
Illinois does have a law that provides for a sentencing
enhancement for recidivist possession (720 ILCS 570/408(a)) and
requires that the state give the defendant notice of the state’s
intention to seek the enhancement. 725 ILCS 5/111-3(c).
38 Nos. 06-3476, 06-3987 & 06-3994
conviction for possession of marijuana would be treated
as a federal felony under the recidivist provision of 21
U.S.C. § 844(a). Id. at 550. We issued the decision in
Pacheco-Diaz after considering the Supreme Court’s deci-
sion in Lopez, but without the benefit of briefing on the
impact of that recently released opinion, and before the
Board issued its decision in Carachuri-Rosendo. Although
I authored the panel decision in Pacheco-Diaz, as I noted
in my dissent to the denial of rehearing, and above, I now
believe that case was incorrectly decided. See Pacheco-
Diaz II, 513 F.3d at 779. Our opinion in Pacheco-Diaz I
looked at Pacheco-Diaz’s conduct rather than, as Lopez
instructs, the conduct proscribed by the offense for which
Mr. Pacheco-Diaz was convicted, and in that way did not
give the categorical approach and the protective mecha-
nisms of 21 U.S.C. § 851 their due. See Pacheco-Diaz II, 513
F.3d at 779-781 (7th Cir. 2008).3
3
The majority also makes much of the fact that recidivism is a
penalty provision and not an element of the offense of convic-
tion. Ante at 17 (citing Almendarez-Torres, 523 U.S. 224, 244
(1998)). Although still reigning law, the viability of this notion
is much in doubt. In U.S. v. Apprendi, 530 U.S. 466, 520, Justice
Thomas, in concurrence, admitted siding with the erring
position in Almendarez-Torres and concluded that the fact of a
prior conviction is indeed an element of a recidivism statute—a
position which allies him with the four dissenters in Almendarez-
Torres. Id. at 520-21 (Thomas, J., concurring). Thomas’ change of
mind now means that at least five current members of the
Supreme Court support the position that the fact of a prior
conviction is indeed an element of a recidivism crime. In any
(continued...)
Nos. 06-3476, 06-3987 & 06-3994 39
Requiring immigration courts to look at the conduct
proscribed by the offense of conviction does not mean
that those courts and the reviewing federal courts are
beholden to the manner in which a state court has
labeled a crime. Federal law must and does provide the
classification for federal felonies. The only question is:
“what is the federal law classifying?” Under a pure hypo-
thetical federal felony approach, federal law looks at the
defendant’s conduct and classifies that conduct under
the federal construct regardless of the actual offense of
conviction. Under the hypothetical federal felony
approach modified by the categorical approach, federal
law classifies the conduct for which the defendant was
convicted, or, as Lopez says, the conduct proscribed by
the state statute. Lopez, 127 S. Ct. at 633.
In sum, by the command of Lopez and the categorical
approach to federal/state offense comparison, we are
obligated to look only at the offense of conviction and
the conduct described therein. True, as the majority points
out, there are limited situations in which we may peek
behind the face of the conviction, to the charging docu-
ments, Gattem, 412 F.3d 758, 765 (2005), but the charging
documents in these cases would have been no help. In
each case in this appeal the state convicted the defendant
3
(...continued)
event, this distinction does not get us around the Supreme
Court’s command in Lopez that we look to the conduct pro-
scribed in the state offense of conviction. In this case that
statute described conduct—simple possession—that would
not have qualified as an aggravated felony under federal law.
40 Nos. 06-3476, 06-3987 & 06-3994
of a simple misdemeanor without mention of any
previous misdemeanor convictions. The state prosecutors
opted not to charge these defendants as recidivist drug
crime offenders and we cannot re-write history to make
it so. The offenses for which each of these petitioners
were convicted do not proscribe conduct that would be a
felony under the CSA. Consequently, I would hold that
none of their convictions constitutes an aggravated
felony under § 1101(a)(43)(B) of the INA. I respectfully
dissent.
9-15-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002294/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 21, 2008
Decided November 12, 2008
Before
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 06‐3144
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 05 CR 738
DAVID GREEN,
Defendant‐Appellant. Charles R. Norgle, Judge
ORDER
David Green went on a bank robbing spree in August 2005, striking four times
over a two‐week period. But it wasn’t long before the police caught up with him. He
was arrested just a few days after his final robbery, and, after receiving Miranda
warnings and waiving his rights, he confessed to the police. Along with his confession,
the government had eye witnesses and surveillance tapes to prove he was the culprit.
Wisely, Green decided to cooperate with the government and agreed to plead guilty. In
No. 06-3144 Page 2
exchange for his plea, the government promised to dismiss one of the robbery counts,
and Green and the government agreed on a guidelines calculation that included a
reduction in his offense level in light of his timely acceptance of responsibility. This
plea agreement also contained an appeal waiver which states: “the defendant
knowingly waives the right to appeal any sentence imposed in accordance with this
agreement or the manner in which that sentence was determined . . . in exchange for the
concessions made by the United States . . . .”
At the change of plea hearing, the district court went through the plea agreement
with Green, repeatedly ensuring that he read and understood that it “spelled out what
[his] rights are and what [he] would be giving up by pleading guilty.” Green, who
testified that he had an associate of arts degree and attended Southern Illinois
University, said several times that he personally read the agreement and had no
questions about it. The court also confirmed that Green went over the plea agreement
with his attorney, both in several face‐to‐face conversations and over the phone.
According to Green, trial counsel explained the rights that he would be giving up by
pleading guilty and answered any questions he had regarding the agreement. Before
allowing Green to enter his plea, the court paused, giving him a final chance to raise
any concerns he had. Having no questions for the court, Green then pleaded guilty.
Despite this otherwise thorough colloquy, the court made no explicit mention of the
appeal waiver. The district court went on to sentence Green to 70 months of
imprisonment, the bottom of his guidelines range.
Despite the appeal waiver, Green filed, pro se, a notice of appeal, arguing
primarily that the guidelines range imposed by the court was higher than the one his
trial counsel promised he would receive. Green, with new appointed appellate counsel,
now argues that his plea was defective because the district court failed to warn him
about the appeal waiver during the change‐of‐plea hearing. Because Green did not
raise this issue before the district court, we review it only for plain error. United States
v. Vonn, 535 U.S. 55, 59 (2002).
Federal Rule of Criminal Procedure 11(b)(1)(N) directs the district court to
“inform the defendant of, and determine that the defendant understands,” an appeal
waiver before accepting a guilty plea. United States v. Sura, 511 F.3d 654, 661 (7th Cir.
2007). The district court failed to do so here. But identifying the error is not the end of
the story. Under plain‐error review, Green must also show that the mistake affected his
substantial rights, or, in more concrete terms, that there is a reasonable probability that,
but for the Rule 11 error, he would not have entered the plea. United States v.
Dominguez Benitez, 542 U.S. 74, 76 (2004); Sura, 511 F.3d at 658.
No. 06-3144 Page 3
Green maintains that he did not understand the meaning of the plea agreement
and would not have pleaded guilty if he did. This argument is unpersuasive. On its
face, the appeal waiver is unambiguous‐‐it explains in uncluttered language that Green
has a statutory right to appeal his sentence, which he gave up in exchange for the
concessions made by the government. United States v. Edgar, 348 F.3d 867, 872 (10th Cir.
2003) (noting that the clarity of a plea agreement itself is a relevant consideration).
Green, who repeatedly testified that he read and understood the agreement, didn’t need
to be a legal expert to grasp the meaning of that provision. Given Green’s level of
education and his previous experiences with the courts (his criminal record suggests
that he was no stranger to the legal system), we take his testimony that he understood
the plea agreement at face value. Further undermining his claim that he misunderstood
the waiver, Green testified that he discussed with trial counsel the outlines of the plea
agreement, along with the specific rights he would be giving up, which presumably
included his right to appeal. Green confirmed that he had such discussions, both in
several face‐to‐face conversations and over the phone.
What’s more, when deciding whether Green’s substantial rights were affected,
we look to the entire record, not just to the plea proceedings alone. Dominguez Benitez,
542 U.S. at 80; United States v. Borrero‐Acevedo, 533 F.3d 11, 17 (1st Cir. 2008). Here, the
government had overwhelming evidence of Green’s guilt, and, consequently, Green
had compelling reasons to make a deal and reduce his sentencing exposure. Despite his
(pro se) protestations to the contrary, Green did receive a significant discount on his
prison term by pleading guilty. Green’s 70‐month sentence falls well below the
guidelines range that would have been imposed had he not accepted responsibility for
his crimes and received concessions from the government. With such a strong case
against him, its difficult to see how the omission of the appellate waiver warning from
the bench had any affect on Green’s decision to plead guilty.
Accordingly, we DISMISS this appeal. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002676/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2488
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B ADAYAH B RAZELTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 06-CR-00144(01)—Robert L. Miller, Jr., Chief Judge.
A RGUED O CTOBER 15, 2008—D ECIDED M ARCH 3, 2009
A MENDED M ARCH 10, 2009
Before E ASTERBROOK, Chief Judge, and C OFFEY and W OOD ,
Circuit Judges.
C OFFEY, Circuit Judge. Police arrested Badayah Brazelton
as he exited his home after a witness identified him as the
assailant in a shooting. Following his arrest, police ob-
tained a search warrant for Brazelton’s home and discov-
2 No. 07-2488
ered guns, crack, marijuana, and other drug paraphernalia.
Brazelton was never charged with the shooting, but based
on the items found in his house during the search,
Brazelton was tried and convicted before a jury on two
counts of gun crimes, 18 U.S.C. § 924(c), (g), and three
counts of drug crimes, 21 U.S.C. § 841(a)(1). The court
sentenced him to 425 months of imprisonment. Appellant
Brazelton argues that his conviction should be set aside,
arguing that one of the jurors seated was related to the
victim of the shooting that led to Brazelton’s arrest and the
search of his home. He makes this argument even though
the victim did not testify and his name was not mentioned
again after it was mentioned at voir dire. More impor-
tantly, though, Brazelton waived the issue raised for
argument at trial even though he was aware of the juror's
relationship at voir dire, and told the judge during the
juror selection process that he did not want the juror to be
struck for cause. Brazelton also claims, and the govern-
ment concedes, that he should be resentenced in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007) because the
district court followed the then-governing case law reject-
ing Brazelton’s argument that the court had discretion to
impose a below-guidelines sentence based on a disagree-
ment with the crack-powder ratio. We agree and remand
for resentencing and affirm Brazelton’s conviction.
Background
The events leading to Brazelton’s conviction began when
Officer Tim Richardson of the Michigan City, Indiana,
police department was dispatched to the scene of a shoot-
ing where an eyewitness informed the officer that
No. 07-2488 3
Brazelton was the shooter. The police found Brazelton at
his home, arrested him and, after obtaining a search
warrant, conducted a search of his house and discovered
drug paraphernalia, and about 230 grams of marijuana,
some 190 grams of crack, and about 95 grams of cocaine,
ammunition, and a gun.
Brazelton was indicted on charges of possession of a
firearm by a felon, 18 U.S.C. § 924(g), possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c), as well as three counts of possession of drugs with
intent to distribute, 21 U.S.C. § 841(a)(1), one each for
cocaine, crack, and marijuana. During voir dire, the court
advised the jury of a list of several people that might
conceivably be called as witnesses without stating their
connection to the case and asked if the jurors knew any of
them. The list included Brandon Byrd, the victim of the
shooting that led to the defendant’s arrest. Juror Number
Four said that Byrd was a second cousin and that he saw
Byrd infrequently, but that if Byrd did testify, he would
not give his testimony any more or less weight than any
other witness. The prosecutor expressed concern about
Juror Number Four’s impartiality because Byrd himself
might testify or a witness might discuss Byrd’s shooting.
The prosecutor suggested asking Juror Number Four, “If
you learned that Mr. Byrd were the victim of a crime
connected with this case, would that influence your
decision?” At the time, Brazelton’s counsel stated that he
did not object to the question, but told the judge he did not
see any reason to ask it, and the judge acquiesced and did
not refer to it again. The judge heard arguments on chal-
4 No. 07-2488
lenges for cause to two jurors, but Brazelton’s counsel
never challenged Juror Number Four for cause. Before
moving on from the cause challenges, the court gave
Brazelton a second chance to object to Juror Number Four,
which he expressly declined:
THE COURT: Does the Defense have a position to take
on either those cause challenges or—you’re not making
a cause challenge on [Juror Number Four] or are you?
You had talked about it. I just want to verify that you
are not.
MR. BARRET: No, Your Honor.
Both sides exercised peremptory strikes but left Juror
Number Four on the jury panel.
The jury convicted Brazelton on all five counts. At
sentencing, the trial judge grouped the drug offenses and
felon-in-possession of a weapon offense together. U.S.S.G.
§ 3D1.2(d). Because Brazelton’s criminal activity involved
the crack, powder cocaine and marijuana, the court used
the drug equivalency tables, U.S.S.G. § 2D1.1 cmt. 10, when
determining that Brazelton was responsible for the equiva-
lent of 3839.71 kilograms of marijuana. This corresponded
to a base offense level of 34, and the court increased it by
two levels for obstruction of justice. U.S.S.G. § 2D1.1(a)(3).
Combined with a criminal history score of 5, this yielded a
guidelines range of 292 to 365 months for the drug and
felon-in-possession counts. For possession of a firearm in
furtherance of a drug trafficking crime, the court deter-
mined the guidelines sentence to be the mandatory mini-
mum of 60 months. U.S.S.G. § 2K2.4(b); 18 U.S.C.
§ 924(c)(1)(A)(I).
No. 07-2488 5
Brazelton objected to the 100-to-one ratio between crack
and powder cocaine that was a part of the drug equiva-
lency tables at the time of sentencing, but the court rejected
the objection based on the governing law at the time of
sentencing. After considering the statutory factors under
18 U.S.C. § 3553(a), the trial court imposed the greatest
period of confinement within the guidelines range for the
grouped offenses, 365 months, as well as the mandatory-
minimum sentence for the other firearm count, and
ordered them to run consecutively. (Even though the
court in its written sentencing memorandum made an
error (immaterial) when it referred to 365 months as the
midpoint of the advisory range—when it was the top of
the range—that error is harmless since “[a] sentence
pronounced in a defendant's presence prevails over a
written sentence when the two conflict.” United States v.
McHugh, 528 F.3d 538, 539 (7th Cir. 2008).)
Analysis
A. Juror Number Four
On appeal, defendant-appellant Brazelton argues that
because juror number four served on the jury, Brazelton
contends he was denied his constitutional right to an
impartial jury. Brazelton asserts that we should review
for an abuse of discretion on the part of the district judge
for failing to remove the juror for cause, but the
case Brazelton cites in support of this proposition is
distinguishable because in that case the party raised the
objection in the district court. Salvato v. Illinois Dept. of
6 No. 07-2488
Human Rights, 155 F.3d 922, 927 (7th Cir. 1998) (“the
plaintiffs’ lawyer moved to strike Abramson for cause”).
As the government argues, Brazelton waived his objection
to Juror Number Four when he expressly declined the
court’s specific invitation to challenge the juror for cause
at trial. A more obvious intentional relinquishment of a
known right, see United States v. Olano, 507 U.S. 725, 733
(1993), is hard to imagine.
The defendant-appellant attempts to sidestep and cast
aside his waiver by contending that his is a claim of
“implied bias,” which, he insists, cannot be waived. The
concept of implied bias is well-established in the law.
Under the doctrine, a court must excuse a juror for cause if
the juror is related to one of the principals in the case, see,
e.g., United States v. Annigoni, 96 F.3d 1132, 1138 (9th
Cir. 1996). Such a juror may well be objective in fact,
but the relationship is so close that the law errs on the
side of caution.
In United States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968),
the Second Circuit traced the implied bias doctrine back to
Chief Justice John Marshall who wrote that:
Why is it that the most distant relative of a party
cannot serve upon his jury? Certainly the single
circumstance of relationship, taken in itself, uncon-
nected with its consequences, would furnish no objec-
tion. The real reason of the rule is, that the law suspects
the relative of partiality; suspects his mind to be under
a bias, which will prevent his fairly hearing and fairly
deciding on the testimony which may be offered to
him. The end to be obtained is an impartial jury; to
secure this end, a man is prohibited from serving on it
No. 07-2488 7
whose connection with a party is such as to induce a
suspicion of partiality.
United States v. Burr, 25 F. Cas. 49 (No. 1492g)(C.C.D. Va.
1807). This opinion, quoted with approval by this court in
United States v. Polichemi, 219 F.3d 698, 704 (7th Cir. 2000),
indicates that any degree of kinship with a principal in a
case would preclude service on a jury for that case.
Brazelton asks us to presume bias because Juror
Number Four’s second cousin was the victim of the
shooting that resulted in the investigation leading up to
the drug and gun charges against Brazelton. We can
assume that Byrd, the victim of the original (but un-
charged) crime, could not himself sit on Brazelton’s jury
because his vote on the charged crimes might possibly be
influenced by a desire to extract punishment for the
uncharged crime. Based on his history with Brazelton,
Byrd could not sit even if he swore to be impartial because
“the law errs on the side of caution.” Polichemi, 219 F.3d at
704. For the same reasons, extending the disqualification
to the victim’s second cousin might seem prudent. Cf.
Conaway v. Polk, 453 F.3d 567, 573-74 (4th Cir. 2006). On the
other hand, though, the record contains no evidence that
Juror Number Four even knew that Brazelton was once
suspected of the shooting of Byrd, his second cousin.
Furthermore, no offer of proof to the court was ever made.
Nor was anything said during the trial that would have
given Juror Number Four this information as Byrd’s name
was not even mentioned after voir dire, and the mention in
voir dire gave no indication of how Byrd was involved in
the case. But silence of the record on these points is
8 No. 07-2488
relevant only to a claim of actual bias, in which a defendant
must establish that the alleged bias actually affected the
juror’s vote. Smith v. Phillips, 455 U.S. 209, 216-17 (1982).
To show implied bias, the defendant need not demonstrate
or establish that the relationship actually affected the
juror’s judgment; the effect is presumed “regardless of
actual partiality.” United States v. Wood, 299 U.S. 123, 134
(1936). So the question comes down to whether the
relationship is close enough to assume bias.
We need not answer that question, since Brazelton’s
contention that implied bias cannot be waived, is wrong.
The Supreme Court has referred to the trial court’s “duty”
to select an impartial jury, Frazier v. United States, 335 U.S.
497, 511 (1948), and the Second Circuit has written that
“the presiding trial judge has the authority and responsibil-
ity, either upon counsel’s motion or sua sponte, to dismiss
prospective jurors for cause,” United States v. Torres, 128
F.3d 38, 43 (2d Cir. 1997) (emphasis added). In a recent
case the Sixth Circuit held that even if defense counsel’s
decision to keep a biased juror on the panel could be classi-
fied as a strategic decision, that strategy might also be
referred to as ill-advised and unreasonable, and the pres-
ence of a biased juror on the panel would require reversal.
Franklin v. Anderson, 434 F.3d 412, 428 (6th Cir. 2006); see
also Miller v. Webb, 385 F.3d 666, 676 (6th Cir. 2004). The
Second Circuit has not gone so far, suggesting only that
there can be no waiver where the juror’s bias or alleged
bias is revealed at voir dire and the district court errone-
ously rejects a challenge for cause. United States v. Nelson,
277 F.3d 164, 204-06 (2d Cir. 2002); see also Ross v. Oklahoma,
No. 07-2488 9
487 U.S. 81, 316 (1988) (“Had [the biased juror] sat on the
jury that ultimately sentenced petitioner to death, and had
the petitioner properly preserved his right to challenge the
trial court’s failure to remove [the juror] for cause, the
sentence would have to be overturned.”).
In this circuit, there is no ambiguity on the question
whether the right to an impartial jury can be waived. We
have held that “[t]he Sixth Amendment right to an impar-
tial jury, like any constitutional right, may be waived.”
United States v. Zarnes, 33 F.3d 1454, 1472 (7th Cir. 1994);
accord United States v. Joshi, 896 F.2d 1303, 1307 (11th Cir.
1990). Brazelton’s on-the-record decision to pass up not
one, but two opportunities to ask that Juror Number Four
be struck for cause was a waiver. If a defendant is allowed
to twice forego challenges for-cause to a biased juror and
then allowed to have the conviction reversed on appeal
because of that juror’s service, that would be equivalent to
allowing the defendant to “plant an error and grow a
risk-free trial.” United States v. Boyd, 86 F.3d 719, 722-23
(7th Cir. 1996).
B. Sentencing
Brazelton’s second argument, that his sentence should be
remanded in light of Kimbrough v. United States, 128 S. Ct.
558 (2007), fares much better. At the time of sentencing,
our case law precluded district courts from imposing a
sentence based on the court’s disagreement with the crack-
powder ratio, see United States v. Jointer, 457 F.3d 682,
686-88 (7th Cir. 2006), thus the trial judge properly rejected
10 No. 07-2488
Brazelton’s argument to do just that. After Kimbrough,
even in a “mine-run case,” district courts are allowed to
impose lesser sentences after a determination that the 100-
to-one ratio produces a sentence greater than necessary for
a particular defendant. Kimbrough, 128 S. Ct. at 575. And
this new discretion applies in cases like Brazelton’s that
involve the equivalency tables because the tables embodied
the 100-to-one ratio. See United States v. Williams, 276 Fed.
App’x 491, 493 (7th Cir. 2008). Brazelton raised this issue
in the district court and the district court gave no ex-
planation as to whether it would have imposed the
same sentence if it had the discretion to consider the
disparity. Brazelton is entitled to a remand for resen-
tencing. See United States v. Padilla, 520 F.3d 766, 774 (7th
Cir. 2008).
Conclusion
We A FFIRM Brazelton’s conviction and R EMAND for
resentencing in light of Kimbrough.
3-10-09 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002682/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 25, 2009*
Decided February 27, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1682
JOSEPH A. TAYLOR, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 2:07‐cv‐099‐RLY‐WGH
BRETT MIZE,1 Richard L. Young,
Respondent‐Appellee. Judge.
ORDER
Indiana prisoner Joseph Taylor appeals the dismissal of his petition for a writ of
habeas corpus. We affirm.
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record. FED. R.
APP. P. 34(a)(2).
1
Brett Mize, the current superintendent of Pendleton Correctional Facility, has been
substituted for Stanley Knight as respondent. See FED. R. APP. P. 43(c).
No. 08‐1682 Page 2
A prison disciplinary board issued a written reprimand after finding Taylor guilty of
refusing a work assignment. The following month, another disciplinary board found Taylor
guilty of forgery. As a result of this finding, Taylor lost 180 days’ good‐time credit, and he
was demoted to a lower credit‐earning class.
Taylor petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that
his right to due process was violated when he was disciplined for both incidents. Four
months later, while Taylor’s § 2254 petition was still pending, the Department of
Corrections (“DOC”) dismissed the forgery conviction and rescinded all related sanctions.
In light of the DOC’s actions, the district court dismissed Taylor’s petition for lack of
jurisdiction, reasoning that Taylor’s claim regarding the disciplinary matter for forgery was
moot. As for the written reprimand Taylor received for refusing a work assignment, the
court found that he failed to meet the “in custody” requirement of § 2254 because the
sanction did not affect the fact or duration of his confinement. The court subsequently
denied Taylor’s motion under Federal Rules of Civil Procedure Rule 59(e) to alter or amend
judgment.
Taylor’s arguments on appeal are not entirely clear, but we understand him to
challenge the district court’s mootness ruling on the ground that the sanctions relating to
the forgery matter have not been dismissed. But Taylor provides no documentary support
for this assertion. To the contrary, the record includes a letter from the DOC dismissing the
disciplinary conviction for forgery and rescinding all sanctions related to the conviction. (R.
40, Exhibit B to Def. Mem. in Support of Mot. to Dismiss, 9/19/07.) Thus there is no longer
any case or controversy, and Taylor’s claim was properly dismissed as moot. See Cochran v.
Buss, 381 F.3d 637, 640 (7th Cir. 2004) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
Taylor also challenges the district court’s conclusion that the written reprimand he
received did not satisfy the “in custody” requirement of § 2254. But Taylor cannot use
habeas corpus to challenge the written reprimand because it does not affect the duration of
his confinement or involve a liberty interest under the Due Process Clause. See Montgomery
v. Anderson, 262 F.3d 641 (7th Cir. 2001); Sandin v. Conner, 515 U.S. 472 (1995).
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002690/ | In the
United States Court of Appeals
For the Seventh Circuit
_______________________
No. 08-4157
UNITED AIR LINES, INC., Plaintiff-Appellee,
v.
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL, STEVEN M. TAMKIN,
ROBERT J. DOMALESKI, JR., XAVIER F.
FERNANDEZ, and ANTHONY R.
FREEMAN, Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 4317 - Joan Humphrey Lefkow, Judge.
__________________________
ARGUED FEBRUARY 24, 2009 – DECIDED MARCH 9, 2009*
_________________________
Before ROVNER, WOOD and SYKES, Circuit Judges.
ROVNER, Circuit Judge. On July 30, 2008, United Air Lines, Inc. ("United") sued the Air
Line Pilots Association, International ("ALPA") and several individual pilots under Section 2, First of
the Railway Labor Act ("RLA"), 45 U.S.C. §152, First, for declaratory and injunctive relief. United
alleged that ALPA (which is the certified collective bargaining representative for the pilots) and the
United pilots engaged in a lengthy campaign of unlawful activities to pressure United to renegotiate the
parties' collective bargaining agreement ("CBA"). After conducting a hearing, the district court granted
*
This opinion is being released in typescript. A printed version will follow.
No. 08-4157 Page 2
United's motion for a preliminary injunction, enjoining the defendants from "calling, permitting,
instigating, authorizing, encouraging, participating in, approving or continuing any interference with
United's airline operations, including but not limited to any strike, work stoppage, sick-out, slowdown,
work to rule campaign, concerted refusal to accept voluntary or overtime flying assignments, or other
concerted refusal to perform normal pilot operations in violation of the Railway Labor Act, 45 U.S.C. §
151 et seq." The court also ordered the defendants to take all reasonable actions within their power to
prevent and to refrain from continuing those actions. We granted the defendants’ motion to expedite
the appeal, and we now affirm.
I.
We will provide a condensed version of the facts that are relevant to the issues on appeal. We
refer the reader to the district court’s extraordinarily thorough and well-supported findings of fact for a
more complete picture of the case. United Air Lines, Inc. v. Air Line Pilots Ass’n, 2008 WL
4936847 (N.D. Ill. Nov. 17, 2008) (hereafter “UAL”).
A.
After the tragic events of September 11, 2001, United suffered financial losses that caused the
company to file for bankruptcy in December 2002. In 2003, United and ALPA negotiated a new labor
agreement (the "2003 CBA") in which the pilots made significant concessions on wages, benefits and
other issues. The new agreement included a 40% wage reduction for the pilots. Over the next two
years, as United's financial condition deteriorated further, the pilots agreed to additional wage
reductions and termination of a defined benefit pension plan. The 2003 CBA (which included changes
made in 2004 and 2005) becomes amendable on December 31, 2009, but the agreement allows the
No. 08-4157 Page 3
parties to begin negotiations for a new contract in early April 2009. The parties could agree to modify
the contract sooner than the amendable date but neither side may unilaterally initiate negotiations until
April 2009.
1.
United and ALPA have a long history of contentious labor relations. In 1985, the pilots
engaged in a month-long strike, during which United hired permanent replacements for the striking
pilots. The pilots and the company negotiated a Back-to-Work Agreement at the end of the strike,
with the pilots agreeing not to retaliate against the newly hired pilots or any pilots who crossed the
picket line during the strike. In spite of the Back-to-Work Agreement, the pilots who worked during
the strike were subjected to ostracism and harassment by the striking pilots for many years following
the end of the strike. The harassment ranged from the juvenile (clicking a toy clicker when non-striking
pilots entered a work area) to the petulant (refusing to shake hands with the non-striking pilots) to the
repulsive (urinating or defecating in the flight bags of non-striking pilots). The striking pilots were both
creative and persistent in their mistreatment of their non-striking counterparts, and some of the non-
striking pilots eventually resigned their positions with United. The remaining United pilots came to
believe that anyone who did not follow the majority position or ALPA’s directives would be subjected
to similar treatment. See UAL, 2008 WL 4936847, *5 (“The continued ostracism and harassment of
non-striking pilots in the two decades following the 1985 strike created a widely-held perception
among United pilots that any pilot who did not follow the majority, or ALPA, party line would be
subject to similar conduct.”) As we will discuss below, similar harassing conduct was directed at pilots
who failed to follow ALPA directives during a 2000 work slowdown and during the current campaign.
No. 08-4157 Page 4
2.
After United exited bankruptcy in 2006, the company began to turn a profit. United recovered
even more in 2007, earning approximately $1 billion in profit in that year. Beginning in December
2006, ALPA sought to reopen negotiations on the 2003 CBA even though it was not amendable until
December 31, 2009. According to United, ALPA began to pressure United with a campaign that
consisted of directives to pilots to engage in actions designed to cause flight delays and cancellations
and to increase United's costs. United alleged that ALPA encouraged the pilots (a) to "fly the
contract," that is, to adhere strictly to the terms of the 2003 CBA; (b) to refuse to voluntarily waive any
section of the CBA, including provisions that were designated as waivable; (c) to refuse voluntary flight
assignments known as "junior/senior manning;" (d) to increase fuel consumption; (e) to refuse to operate
planes that had deferrable maintenance items; and (f) to take excessive amounts of time in pre-flight
cockpit checks. United also alleged that, beginning in July 2008, ALPA and the four individual
defendants coordinated a "sick-out" among United's junior pilots. The sick-out, in combination with the
refusal to accept voluntary junior/senior manning assignments, caused several hundred flight
cancellations, affecting approximately 30,000 United customers.
United filed suit on July 30, 2008. Two days later, on August 1, 2008, United and ALPA
entered into a "Standstill Agreement." Under that agreement, ALPA agreed to publish statements to its
pilot members directing the pilots not to engage in activities that disrupted United's operations. ALPA
agreed to tell the pilots not to call in sick when they were not actually ill, and also agreed to convey to
the pilots that ALPA did not condone the sick-out. ALPA also agreed in the Standstill Agreement to
No. 08-4157 Page 5
publish a statement to the pilots regarding their refusal to accept junior/senior manning assignments.
Those statements were released in August 2008.
3.
ALPA had a very efficient system in place for communicating with the pilots. A Master
Executive Council ("MEC"), comprised of the top officers from local ALPA councils, has the authority
and responsibility of negotiating on behalf of the pilots. The MEC communicated with the pilots with a
"MEC Update" posted on ALPA's website two or three times a week. The MEC also posts on the
website statements and video presentations from the MEC chairman and other MEC entities. MEC
also sends e-mails to pilots who have provided ALPA with their e-mail addresses. Approximately
ninety percent of the pilots have provided their e-mail addresses to ALPA. These are not the only
means of ALPA communicating with its members. ALPA also maintains a password-protected
website known as the UAL MEC Forum in which ALPA members may post statements to other
ALPA members. ALPA also utilizes telephone trees and text messages to distribute information to
ALPA members. In other words, ALPA and the MEC have many means of communicating with the
pilots, including some methods that leave no paper or electronic trail of the content.
In addition to the MEC, ALPA operates an Industrial Relations Council ("IRC"), whose
purpose, according to the UAL-MEC Policy Manual, is to formulate and implement labor actions. The
IRC consists of three or four members. The MEC chairman appoints the chairman of the IRC, who in
turn appoints the other members of the IRC. The IRC also has methods of communicating instructions
to pilots and uses the same channels through which it parcels out information to collect information. The
IRC meets only in person or by telephone and by design leaves no written trail of its communications.
No. 08-4157 Page 6
It is a secretive organization. Steven Tamkin, one of the individual defendants, has been the chair of the
IRC since 2007. Tamkin gained that position with the implicit understanding that he would take a more
aggressive stance in labor relations with United than the previous chair had taken. Robert Domaleski
and Xavier Fernandez, two of the other individual defendants were also officers of the IRC. There was
conflicting evidence on whether the fourth individual defendant, Anthony Freeman, was a member of
the IRC.
Freeman was one of 2172 junior pilots who were furloughed following September 11, 2001.
This group became known as "the 2172." Freeman maintained a password-protected website
specifically for the 2172 in order to facilitate communication among the group's members and protect
their common interests as junior pilots. Pilots who wish to have access to the website must be
personally approved by Freeman or one of two other web administrators. The group deleted accounts
of pilots who signed up with United e-mail addresses, presumably to prevent United from monitoring
the group's communications. The 2172 communicated through postings on the group's website and
through mass e-mails. Freeman discouraged members from posting communications that were not
"meant for paper or electronic communication." In June 2008, Freeman established a telephone tree
for the group, a form of communication that would leave no readily traceable record of the content of
the messages.
The district court noted that the deposition testimony of the four individual defendants varied on
whether Freeman is or ever was a member of the IRC. The testimony also varied on when the
defendants were appointed to the IRC and by whom they were appointed. These significant
discrepancies in the testimony caught the attention of the district court because the four individual
No. 08-4157 Page 7
defendants held a meeting on June 11, 2008, shortly before a July sick-out staged by the junior pilots
began, and the subject of that meeting was much disputed. The court found that the discrepancies were
material and "cast doubt on the candor" of the deposition testimony of these defendants. Tamkin and
Freeman testified that Freeman was a member of the IRC; Domaleski and Fernandez testified that
Freeman was not a member of the IRC. The court specifically noted that "[i]f Freeman was not a
member of the IRC, it would have been difficult for defendants to provide an innocent explanation as to
why he met with the IRC members on June 11, 2008."
The court found the discrepancies about the timing of the defendants’ appointments to the IRC
material because the IRC had been disbanded in 2000 and was reactivated either during the current
MEC chairman's tenure or during the tenure of his predecessor. The current MEC chairman, Steven
Wallach, was elected in October 2007. Former MEC chairman Mark Bathurst stepped down at that
time. Tamkin claimed to have been appointed by Bathurst in April 2007, and testified that he
appointed Domaleski, Fernandez, and Freeman in April 2007. Domaleski testified that he, Tamkin and
Fernandez were appointed in approximately November 2007 by the newly elected MEC Chairman
Wallach. Fernandez claimed that he, Tamkin and Domaleski were appointed in May 2007. The court
found that the inconsistencies in these dates could reflect an effort by Tamkin, a friend of Wallach, to
place responsibility for reactivating the IRC on Bathurst rather than on Wallach. United argued
vigorously in the district court that these discrepancies cast serious doubt on the credibility of the four
individual defendants. Yet at the time of the hearing and in briefing, ALPA and the individual
defendants made no effort to explain the discrepancies. The district court concluded that Freeman was
No. 08-4157 Page 8
not a member of the IRC and that those who attended the June 11, 2008 meeting were “less than
candid” about what occurred at that gathering.
4.
ALPA used the 2000 slowdown as an example to the pilots during the current dispute. The
pilots engaged in a work slowdown during negotiations that year for a new contract. When a new
agreement was not reached before the amendable date of the prior agreement, ALPA used the IRC to
implement a slowdown campaign. ALPA directed the pilots, through the IRC, to decline voluntary
overtime assignments and to refuse to waive any provisions of the contract. In the summer of 2000,
United experienced a dramatic increase in flight delays and cancellations due to decisions by pilots to
refuse to fly aircraft with minor equipment issues and due to delays in completing pre-flight checklists.
During that time, ALPA publications encouraged pilots to “fly the contract,” a code phrase for strict
adherence to the contract in order to pressure United to make concessions in the new CBA. ALPA
also encouraged pilots to confront any colleagues who were not following ALPA’s directives. During
the summer of 2000, pilots who did not comply with ALPA’s instructions had their names posted on
bulletin boards along with derogatory comments about them, and they received harassing phone calls at
home. The day after United agreed to large wage increases in the 2000 CBA, flight delays and
cancellations returned to near-normal levels.
ALPA used this history and the pilots’ knowledge of this earlier dispute to encourage the 2007
practices. For example, in April 2007, ALPA released a video message telling the pilots that if they
had any doubts about what leverage is and what it could accomplish, they should talk to pilots who
remembered prior negotiations. In September 2007, Wallach told the pilots that the 2000 CBA was
No. 08-4157 Page 9
obtained by pilots “forcing the company to negotiate.” Wallach also said that the pilots had to make it
more expensive for the company not to negotiate than to negotiate. As late as June 2008, a MEC
member sent an e-mail to other MEC members reminding them that “[i]n 2000, we brought our CEO
to his knees” because United was delaying reaching a new contract, and that he was prepared to
increase his “level of risk.”
ALPA's actions and communications to pilots in the current job action were very similar to
ALPA's approach during the 2000 work slowdown, and the harassment of non-cooperating pilots also
followed the same pattern. Because 90% of the current pilots were employed by United in 2000, the
district court inferred that the current pilots understood how the elements of a job slowdown would be
implemented, understood what ALPA meant when it used coded phrases like "fly the contract," knew
that they would likely be harassed by their fellow pilots if they failed to comply with ALPA's directives,
and believed that, based on their prior experience, a slowdown campaign would create the leverage
they wanted to give them an advantage at the bargaining table.
5.
The job action that began in 2006 escalated in 2008. In 2008, United faced substantial
increases in the price of jet fuel, resulting in a $2.7 billion net loss in the first six months of 2008. On
June 4, 2008, United announced plans to retire approximately 100 aircraft and to furlough 1450 pilots.
The vast majority of the furloughed pilots were expected to be the same pilots who had been
furloughed after September 11, 2001. In other words, most of the furloughed pilots would be part of
the 2172. A week later, on June 11, 2008, the four individual defendants met. Recall that three of the
individual defendants were indisputably members of the newly reformulated IRC and the fourth was
No. 08-4157 Page 10
Freeman, a member of the 2172 who had launched the 2172 website. A month after that meeting, the
junior pilots who were expected to be furloughed began a sick-out that resulted in several hundred flight
cancellations. United had expected that this group of pilots would try to use some of their sick leave
before being furloughed, but the levels exceeded expectations, and when combined with other actions,
such as refusals to take on junior/senior manning assignments, caused substantial disruptions in service
at United.
In 2006, the then-MEC Chairman Bathurst had announced the “Fix it Now” campaign, which
became more aggressive when the new MEC Chairman, Wallach, was appointed. Both MEC
chairmen tied the success of ALPA’s efforts to reopen the 2003 CBA to actions by pilots to create
leverage. ALPA directed the pilots to decline to fly aircraft that had deferrable maintenance (the “Fix it
Now” campaign), to “fly the contract” (that is, to strictly adhere to the contract terms for the purpose of
causing a slowdown), and to “work-to-rule” (another code for the pilots to strictly adhere to contract
terms for the purpose of creating delays and cancellations). In January 2007, United agreed to meet
ALPA to discuss modification of certain work rules if the changes could be effected on a cost-neutral
basis. By the middle of March 2007, the parties reached a tentative agreement on some of these
issues. Although the MEC approved the tentative agreement, ALPA’s members did not, and the deal
fell through. Bathurst released a video in April 2007, addressing the failed agreement, the “Fix it Now”
campaign and the group’s plans to pursue a more aggressive posture in seeking to modify the 2003
CBA. United’s management immediately noticed a slowdown following the release of the video, and
raised the issue with the MEC chairmen in May 2007 and January 2008. Neither MEC chairman
would admit that a job action was underway and ALPA took no action in response to United’s
No. 08-4157 Page 11
requests. United continued to offer to address specific concerns, and also increased its pool of reserve
pilots so that the company would be less dependent on junior/senior manning during pilot absences.
On July 14, 2008, MEC Chairman Wallach directed ALPA to terminate negotiations with
United regarding certain quality of life issues, and the sick-out began. On July 21, 2008, after United
requested assistance in ending the sick-out, Wallach sent a letter to the pilots regarding the increase in
sick leave. The district court found that, “[o]n its face, the letter could not reasonably have been
interpreted by United pilots as discouraging the sick-out.” UAL, 2008 WL 4936847, *34. The letter
contained only two sentences indicating that the MEC did not condone the inappropriate use of sick
leave, and that sick leave should only be used for purposes approved in the contract or as required by
law. The court found that the remainder of the letter assured pilots that they were “absolutely entitled to
use sick leave for appropriate circumstances.” The next eight paragraphs included “lengthy lists of the
myriad situations in which a pilot may or must take sick leave-including a wide variety of medical
reasons, as well as various non-medical situations, such as fatigue, stress, and emotionally upsetting
events.” Id. Not entirely unexpectedly, sick leave did not substantially decrease following this letter.
As we noted above, United filed suit approximately one week later, the parties entered into the
Standstill Agreement, and United sought injunctive relief.
6.
The district court concluded that ALPA had ordered a number of job actions focused on
exerting financial pressure on United to force the company to reopen negotiations on the 2003 CBA
before the amendable date required United to do so. In 2006, in addition to the Fix it Now campaign,
the MEC chairman reactivated the MEC’s Strike Preparedness Committee (“SPC”), which had been
No. 08-4157 Page 12
inactive for approximately five years. At the time the SPC was reactivated, ALPA could not lawfully
strike for at least three more years under the CBA. ALPA and the MEC chairmen issued statements
and video-taped messages to the pilots employing phrases like “fly the contract” and “work-to-rule,”
which the pilots understood from prior job actions as directives to engage in a slowdown. ALPA
leadership also told the pilots it was not in their interest to waive any contract provisions, and in April
2007, the MEC chairman specifically discouraged the pilots from taking junior/senior manning
assignments. Immediately after this statement, United noticed a substantial drop in the number of pilots
willing to take these assignments. When United management approached ALPA to discuss this drop-
off and also to discuss the posting of “rat lists” naming pilots who took junior/senior manning
assignments, ALPA claimed it had no involvement in any harassment and told the company to take care
of these issues through the normal discipline process. ALPA did not address the complaint about the
drop-off in junior/senior manning. During the remainder of 2007, United and the pilots reached
agreements on a number of smaller issues of concern to the pilots.
Before Wallach began his formal term as chairman of the MEC, he asked United’s
management to start negotiations before the April 2009 date contained in the 2003 CBA. United
asked to meet with Wallach and told him the company was contemplating a merger. United asked
Wallach if they could defer discussions about reopening the contract until the merger discussions were
complete. Wallach agreed to do so if United would implement the failed tentative agreement from
March 2007. United, hoping to stop the slowdown, agreed to implement that agreement if Wallach
would “take the customer out of” the equation, that is, if ALPA would stop engaging in actions that
affected service to customers. Wallach agreed to do so, and did stop certain picketing at corporate
No. 08-4157 Page 13
and institutional customers, but did not halt the slowdown campaign. Indeed, after Wallach became the
MEC chairman in January 2008, the district court found that ALPA began a more aggressive campaign
to reopen the contract. During his campaign to be elected MEC chairman, Wallach advocated
attacking the labor laws in Congress, and told the pilots that, although ALPA could not tell pilots
specifically what to do, it could tell pilots to strictly abide by the flight operations manual and the
contract. Wallach also told the pilots he did not consider the illegality of slowdowns under the RLA to
be a serious impediment, telling his audience, “You should use lawyers to get you out of jail when you
do what you need to do.” On his first day in office, Wallach exhorted the pilots to “take back our
airline and reclaim what was stolen from us” during the bankruptcy negotiations. The MEC Updates
issued under Wallach repeatedly reminded the pilots that they were working under a contract
negotiated under the duress of the bankruptcy.
In February 2008, United met again with Wallach and presented him with statistical evidence
regarding operational delays. United asked for Wallach’s help in eliminating service disruptions. But
operational problems did not improve after this meeting. And once United finished merger discussions
in April 2008 (the merger never happened), Wallach resumed the picketing he had earlier halted. That
same month, United and ALPA agreed to jointly address fatigue issues for pilots. In May 2008, the
parties began to negotiate work rules related to fatigue and “quality of work life” issues. Wallach told
United management that there would be consequences if no agreement was reached on these issues by
the end of May. Although Wallach did not describe the consequences, United understood this to be a
threat that ALPA would intensify its disruption of United’s operations during the busy summer months.
On June 4, 2008, United announced its intention to reduce the fleet by 100 aircraft and to furlough
No. 08-4157 Page 14
1450 pilots. As a result of this announcement, the parties agreed to turn their attention to negotiating a
furlough agreement. ALPA and United reached a furlough agreement in late June, which the MEC
approved on July 11.
In the meantime, in late June, Wallach convened a closed-door meeting of the MEC, the IRC,
the SPC and the Family Awareness Committee (a subcommittee of the SPC). E-mail chatter
preceding this meeting suggested that some MEC members wanted to “ratchet up the heat” and bring
the United CEO “to his knees.” A few days after the meeting, Wallach sent to United management a
draft letter that he intended to send to the pilots. He told United to “stick it [presumably, the draft
letter] in their decision matrix” on the fatigue negotiations. The letter attacked the competence and
motives of United’s management and suggested that United did not care about the fatigue negotiations.
Wallach delivered a revised version of this letter to the pilots on July 15, 2008. In the revised letter,
Wallach told the pilots that ALPA was terminating negotiations with United on the fatigue and other
“quality of work life” issues. Wallach painted United’s management as “a focused, hostile and arrogant
management group” that did not care about the well-being of the pilots or their families. The letter told
the pilots that they could not get out from under the 2003 CBA unless they started to work on it “now,”
meaning in July, a full eight and a half months before the 2003 CBA allowed for negotiations to begin.
Wallach later testified that he decided to terminate negotiations because they were “out of time” and
“done talking.” The district court questioned this explanation because there was no apparent time
constraint, and the only alternative to continuing negotiations was to engage in a more widespread (and
unlawful) job action. In contrast to Wallach and ALPA’s representations, the district court found that
United was making progress toward a fatigue agreement, and that the company sent a revised proposal
No. 08-4157 Page 15
to ALPA which United believed would resolve the only remaining open issue. ALPA never replied to
this proposal.
Based on this and other evidence, the district court found that the true reason for sending the
July 15 letter to the pilots was to foster indignation and animosity towards United, and to encourage the
pilots to engage in more widespread job actions on the premise that United would not agree to ALPA’s
proposals. At Wallach’s direction, ALPA also withdrew from an agreement the parties reached in
September 2007 regarding a web-based trip trading program that the pilots wanted. Withdrawing
from that agreement created a burden on pilots who wanted to trade trips and provided nothing to
ALPA in return. In other words, ALPA took a step against the pilots’ interests, cancelling an
agreement in favor of the pilots, for no apparent reason. The district court found this to be further
evidence that Wallach and ALPA were trying to create animosity among the pilots toward United.
7.
The district court found that ALPA’s current campaign to force United to renegotiate the CBA
mirrored the tactics ALPA employed in the 2000 slowdown. The court found that the current
campaign included refusals to accept voluntary flight assignments such as junior/senior manning; refusals
to waive contract provisions that pilots normally would be willing to waive; creation of flight delays with
lengthy pre-flight cockpit checks; the unnecessary addition of extra fuel to flights; and the creation of
flight delays and cancellations by refusing to fly aircraft with deferrable maintenance items. The court
found that ALPA and the IRC encouraged a sick-out among the junior pilots which, combined with the
refusal to accept junior/senior manning assignments, caused several hundred flight cancellations.
Although ALPA claimed that the letter to the pilots on July 21, 2008 was intended to discourage the
No. 08-4157 Page 16
pilots from using sick leave inappropriately, the court found that the vast majority of the letter actually
encouraged the use of sick leave, and that the pilots receiving the letter would have understood it as an
invitation to ramp up sick leave. Indeed, after the pilots received the letter, the use of sick leave
increased. The court found that there was also an extraordinary increase in fatigue calls during the
relevant time. Pilots may call off work on any given day if they believe they are too fatigued to fly. This
is a safety-based, no-questions-asked policy. During the time in question, there was a multifaceted
education program about fatigue-related safety issues. The pilots received messages about fatigue from
United, the FAA, and the airline industry as well as from ALPA and the IRC. The court found that it
was impossible to discern to what extent the increase in fatigue calls was due to illegitimate efforts by
ALPA and the IRC. The court therefore rejected United’s argument that the increase in fatigue calls
was part of any unlawful job action. The district court’s findings on all of these issues are well-
supported by the record and by the court’s careful analysis, and we affirm those findings.
The court also found that ALPA exerted such extraordinary control over the pilots that it could
direct whether the pilots were going to wear their hats on certain days. MEC Updates included a
graphic of a light switch. When the switch was in the “on” position, pilots were to wear their hats, and
when the switch was in the “off” position pilots were to keep their hats off. This exercise in solidarity
and control over the pilots was enormously successful, and some pilots who wore their hats during “off”
periods were threatened with physical violence by other pilots. The court found additional evidence of
ALPA’s ability to control the actions of the pilots, including the immediate success of the Standstill
Agreement in dramatically reducing the use of sick leave. Unlike the counterproductive July 21, 2008
letter, ALPA was able to convey to the pilots that, this time, it really meant it.
No. 08-4157 Page 17
Moreover, pilots who did not comply with ALPA’s directives on junior/senior manning found
themselves the subjects of harassment that included “rat lists;” derogatory and threatening notes at work
and at home; graphically violent horror movies delivered to their homes; unauthorized loans taken out in
their names; magazine subscriptions taken out in their names; and harassing phone calls to the pilots,
their spouses and (most appallingly) their children at home. Although ALPA denied that it supported
the harassment, the court concluded from the evidence that ALPA ratified and possibly authorized this
harassment, and that ALPA knew about the harassment and failed to take any meaningful action to
discourage it. The harassment was the mechanism by which ALPA was able to exert control over the
pilots. These findings are also well-supported by the record and we affirm them.
B.
We refer the reader again to the district court’s exhaustive opinion for the court’s conclusions
of law. UAL, 2008 WL 4936847, *35-*47. In a nutshell, the court found that ALPA and the
individual defendants violated Section 2, First of the RLA by directing and encouraging the pilots (1) to
refuse junior/senior manning assignments; (2) to refuse to waive contract provisions; (3) to “fly the
contract” and engage in conduct that would increase flight delays, cancellations and costs to United;
and (4) to engage in a sick-out (especially among the junior pilots) beginning in July 2008. The court
also found that ALPA violated its duty to exert every reasonable effort to stop the disruption of
United’s operations and to stop the harassment of pilots who did not cooperate with ALPA’s
directives. The court found that the defendants engaged in these activities for the purpose of obtaining a
new CBA. The court concluded that this was not a “minor dispute” under the RLA, and that the court
had jurisdiction to enforce Section 2, First of the RLA under these circumstances. United’s claims
No. 08-4157 Page 18
were not barred by the six-month statute of limitations contained in the RLA, the court determined,
because the defendants were engaged in a multifaceted, ongoing slowdown campaign that constituted a
continuing violation of the RLA. The court also held that United’s claims were not barred by laches.
The court held that the Norris-LaGuardia Act (“NLGA”), 29 U.S.C. § 101 et seq., does not
prohibit the issuance of a preliminary injunction in these circumstances. Although the NLGA generally
strips courts of jurisdiction to enter injunctions against labor unions in labor disputes, the court noted
that, where a challenged action violates a specific provision of the RLA, the RLA takes precedence
over the NLGA. Under Section 7(a) of the NLGA, the court acknowledged it could not enter an
injunction unless the court found that unlawful acts have been threatened and will be committed unless
restrained or have been committed and will be continued unless restrained. The court rejected ALPA’s
claim that United is no longer suffering operational problems, and that the lawsuit and ALPA’s
subsequent actions have been adequate to address the operational problems. The court found no
support in the record for those contentions. Nor was the court persuaded that the Standstill Agreement
or the defendants’ voluntary cessation of certain activities negated the need for an injunction. Based on
the record we described above, the court believed that the defendants would continue to engage in
unlawful conduct to disrupt United’s operations unless an injunction was entered. In balancing the four
factors for a preliminary injunction, the court found that United had demonstrated a likelihood of
success on the merits, that the company had no adequate remedy at law, that the balance of hardships
weighed in United’s favor, and that the public interest also weighed in favor of United. The court
therefore granted the preliminary injunction, and the defendants have appealed.
II.
No. 08-4157 Page 19
The defendants raise four main issues in this expedited appeal. First, they contend that the six-
month statute of limitations bars United’s claim that ALPA engaged in an unlawful job action. Second,
they argue that ALPA has made reasonable efforts under Section 2, First of the RLA in response to the
alleged sick-out. Third, they contend that United has not satisfied the requirements of Section 6 of the
Norris-LaGuardia Act because the company failed to show that the defendants participated in or
ratified any unlawful acts. Finally, the defendants maintain that the requirements of Section 7 of the
NLGA were not satisfied here, and that an injunction was not necessary to prevent a violation of
Section 2, First of the RLA. We review the district court’s findings of fact for clear error, its balancing
of the factors for a preliminary injunction under the abuse of discretion standard, and its legal
conclusions de novo. United Air Lines, Inc. v. Int’l Ass’n of Machinist & Aerospace Workers, 243
F.3d 349, 360 (7th Cir. 2001) (“IAM”).
A.
Because the RLA has no statute of limitations for actions under Section 2, First, we borrow the
six month statute of limitations from section 10(b) of the National Labor Relations Act (“NLRA”), 29
U.S.C. § 160(b). See West v. Conrail, 481 U.S. 35, 37-38 (1987); Brotherhood of Locomotive
Eng’rs v. Atchison, Topeka & Sante Fe Ry. Co., 768 F.2d 914, 919 (7th Cir. 1985). The
defendants contend that United was aware of the job actions in dispute here as much as eighteen
months before the company filed this suit on July 30, 2008. Specifically, the defendants posit that
United was aware of the problems with junior/senior manning in 2006, and knew about ALPA’s other
actions (refusals to waive the contract, delays and cancellations due to refusals to fly aircraft with
deferrable maintenance, the use of excessive amounts of fuel, for example) in 2006 and 2007. Because
No. 08-4157 Page 20
United did not file suit until more than six months after those actions commenced, the defendants
maintain that the suit is untimely.
As the district court noted, the defendants’ actions were not discrete acts that occurred outside
the period of limitations. Rather, the actions were a “multi-faceted and ongoing slowdown campaign”
that violated the RLA outside of the limitations period and continued to occur and continued to cause
new harm during the limitations period. The court found that the directives by ALPA to the pilots, and
the pilots’ actions to disrupt United’s operations continued well into the six-month period prior to the
filing of the lawsuit. In fact, the court noted, the continuing campaign against junior/senior manning
contributed to the large number of flight cancellations at the height of the sick-out campaign in July
2008, weeks before United filed suit. The court looked to cases interpreting Section 10(b) of the
NLRA (from which we borrowed the statute of limitations), and found that when a violation begins
outside the period of limitations but continues into the limitations period, the claim is not time barred.
See Atlas Air, Inc. v. Air Line Pilots Ass’n, 232 F.3d 218, 226-27 (D.C. Cir. 2000) (under the
RLA, as in the NLRA, suits for unlawful actions which begin before the limitations period but continue
during the limitations period and continue to cause injury during the limitations period are not time
barred). As the Ninth Circuit explained:
A party may not rely solely on events occurring more than six months before suit was filed to
establish a violation of the RLA. However, events occurring outside the limitations period may
be proven to shed light on the true character of matters occurring within the limitations period, if
evidence exists that is reasonably substantial in its own right that the violation of the RLA upon
which the plaintiff relies occurred within the period. The evidence of events within the limitations
period, considered apart from earlier evidence which may help to explain the events in question,
need not be conclusive; significant or considerable evidence that a violation occurred within the
limitations period will suffice.
No. 08-4157 Page 21
Association of Flight Attendants, AFL-CIO v. Horizon Air Indus., Inc., 976 F.2d 541, 547-48 (9th
Cir. 1992) (internal citations and quotation marks omitted). See also Local Lodge No. 1424 v.
NLRB, 362 U.S. 411, 416 (1960) (interpreting section 10(b) of the NLRA, and holding that, when
occurrences within the six-month limitations period in and of themselves may constitute, as a substantive
matter, unfair labor practices, earlier events may be utilized to shed light on the true character of matters
occurring within the limitations period).
Here the district court clearly found that, during the limitations period, the defendants were
engaged in unlawful job actions that caused harm to United’s operations. In addition, the full effect of
actions that began before the limitations period was not felt until ALPA initiated additional actions
during the limitations period. For example, the ongoing campaign to refuse junior/senior manning
assignments, which began in 2006, combined with the junior pilot sick-out in July 2008 to force
hundreds of flight cancellations. Neither action alone would have produced the same magnitude of
harm as those actions did together; it was the combination of refusals to accept overtime assignments
combined with a large number of pilots calling in sick that caused the cancellations. This fact alone
distinguishes this case from Limestone Dev. Corp. v. Village of Lemont, 520 F.3d 797 (7th Cir.
2008), and Lewis v. City of Chicago, 528 F.3d 488 (7th Cir. 2008), which the defendants
characterize as irreconcilable with Atlas Air. In each of those cases, the wrongful acts and the injuries
were completed outside the limitations period, although “lingering effects” of the wrongful actions were
alleged. In the instant case, the defendants engaged in unlawful actions before and during the limitations
period that caused injuries before and during the limitations period. The earlier actions shed light on the
No. 08-4157 Page 22
actions within the limitations period. And the earlier actions that continued into the limitations period
combined with actions well within the period to create new injuries. United’s action is not time barred.
B.
We can dispense quickly with the defendants’ second argument; it has no merit. The
defendants argue that ALPA made reasonable efforts under Section 2, First to halt the alleged sick-out.
Citing our IAM opinion, they contend that the court may not issue a preliminary injunction against a
union that has promoted improper activity if the union has taken sufficient steps to attempt to end that
activity. They cite ALPA’s July 21, 2008 letter to the pilots as a reasonable attempt to end the sick-
out. But the district court found that this letter contained only a few sentences addressed to ending the
unlawful sick-out and was mostly composed of coded encouragements to continue and even ramp up
the sick-out. As the court noted, the sick-out continued and even increased in intensity following the
letter. Yet after the lawsuit was filed and the parties entered into the Standstill Agreement, ALPA
managed to find a way to communicate to the pilots that they should back off of the sick-out. The July
21 letter was surprisingly ineffective even though ALPA was able to control the pilots at such a level of
minutiae that it could direct when the pilots would wear their hats. The court did not err when it
concluded that ALPA had not engaged in a good faith effort to end the sick-out when it sent the July 21
letter. Rather, ALPA sent the pilots a letter that the pilots would understand to be an invitation to
continue the sick-out. ALPA’s argument on this point consists mostly of a request for this court to
reweigh the evidence and to consider again the district court’s credibility findings. We accord
substantial deference to the district court’s findings of fact, and the defendants do not come close to
demonstrating clear error here. IAM, 243 F.3d at 360-61.
No. 08-4157 Page 23
C.
The defendants acknowledge that a court may issue an injunction to enforce the requirements of
Section 2, First of the RLA. But they contend that the requirements of Section 6 of the NLGA must
also be met before an injunction may issue, and that those requirements were not met here. Section 6
of the NLGA provides:
No officer or member of any association or organization, and no association or organization
participating or interested in a labor dispute, shall be held responsible or liable in any court of
the United States for the unlawful acts of individual officers, members, or agents, except upon
clear proof of actual participation in, or actual authorization of, such acts, or of ratification of
such acts after actual knowledge thereof.
29 U.S.C. § 106. The defendants assert that Section 6 requires United to provide clear proof that the
defendants participated in, authorized, or ratified the job actions at issue here. United disputes whether
the clear proof standard applies in the context of injunctive relief, maintaining that it applies only to
claims for damages or criminal liability. In IAM, we assumed without expressly deciding that Section 6
applied to claims for injunctive relief. IAM, 243 F.3d at 365-67. See also Air Line Pilots Ass’n v.
United Air Lines, Inc., 802 F.2d 886, 905 (7th Cir. 1986) (hereafter “ALPA”) (in order to establish
that Section 6 does not insulate a union against an injunction, the employer was required to show by
“clear proof” the union’s involvement with sick leave abuse). We need not revisit the use of the clear
proof standard in this case because United still prevails under the higher clear proof standard, which
requires “clear and convincing evidence, as opposed to a preponderance.” ALPA, 802 F.2d at 905.
The defendants argue that the district court clearly erred in finding clear proof that (1) the pilots
engaged in a slowdown in 2008; (2) the pilots engaged in a sick-out in June and July of 2008; (3)
No. 08-4157 Page 24
ALPA and the individual defendants authorized or ratified messages posted on the MEC Forum or the
website for the 2172; (4) the individual defendants who were members of the IRC instigated a sick-out;
and (5) ALPA’s July 15 letter from Wallach was intended to foster indignation and animosity among
the pilots toward United, and thus encourage them to engage in more widespread job actions. The
defendants counter these findings by explaining that (1) any increase in delays and cancellations can be
explained by “the most challenging operating environment in aviation history” that occurred in 2008; (2)
any increase in sick leave usage was not the result of a concerted sick-out but rather was the expected
result of United’s announcement that it intended to retire 100 aircraft and furlough 1450 pilots; (3) there
was no evidence that ALPA or the individual defendants authorized or ratified the messages posted on
the MEC Forum or the 2172 website; (4) the individual defendants actually tried to prevent their sick-
out in the June 11 meeting; and (5) there was nothing unlawful about the July 15 letter and no evidence
that any pilots called in sick as a result of that letter.
We note again that we owe great deference to the district court’s findings of fact and will
reverse them only for clear error. IAM, 243 F.3d at 360-61. In ALPA, we found that statistical
evidence alone regarding a marked increase in sick leave was not enough to constitute clear proof that
the union was implicated in a sick-out scheme. 802 F.2d at 905-06. See also IAM, 243 F.3d at 366
(reiterating that statistical evidence alone is not enough to provide clear proof of a union’s involvement
in a work action). An employer may meet the clear proof standard with statistical evidence in
combination with evidence of a union’s coded communications to its members to engage in an unlawful
job action. Phrases such as “work safe,” “work by the book,” “adhere to strict contractual
requirements,” “not to neglect even the most minor write ups,” “check every item on the checklists,”
No. 08-4157 Page 25
were all recognized as coded signals to engage in a slowdown. 243 F.3d at 366-67. In ALPA, we
suggested that statistical evidence plus a notice posted on a union’s bulletin board could suffice as clear
proof. 802 F.2d at 367. In IAM, we found that the union’s directives to workers to “work safe,” to
clean their boxes and tools daily, and to shut down and fix anything that is not safe, combined with
statistical evidence, were clear proof of a union’s authorization of a slowdown. 243 F.3d at 367.
With those standards in mind, we turn to the evidence on which the district court relied in
finding that United had clearly proved the defendants’ involvement in various job actions. First, the
court relied on statistical evidence regarding increases in the use of sick leave, in refusals to accept
junior/senior manning assignments, and in flight delays and cancellations. Second, and more
importantly, the court also relied on the many messages that the defendants conveyed to the pilots
during the relevant time frame. Among those messages were repeated directives to “fly the contract,”
to not waive any part of the contract, to decline junior/senior manning assignments, to “fix it now,” and
to “work-to-rule.” Some of these directives appeared on websites and in mass e-mails, the twenty-first
century equivalents of a bulletin board. Some communications occurred through channels that were
decidedly less traceable such as phone trees. The court based its conclusions that the pilots understood
these to be coded phrases to engage in job actions on prior disputes between the company and the
pilots where similar phrases were employed, finding those prior disputes relevant because so many of
the pilots involved in the earlier actions were still on the job. Other evidence before the court included
the July 15, 2008 letter that the court determined was designed to increase indignation and animosity
among the pilots toward the company. We will not repeat the district court’s complete findings. We
affirm those findings because, contrary to the defendants’ contentions, the court relied on a wealth of
No. 08-4157 Page 26
evidence in rejecting the defendants’ alternative explanations for the increases in sick leave usage, flight
delays and cancellations.
We addressed above the appropriateness of the district court’s findings regarding the July 21,
2008 letter related to sick leave usage. The defendants also complain that the court erred by drawing a
negative inference from the failure of the individual defendants to testify at the hearing regarding the June
11, 2008 meeting regarding the sick-out. The defendants, however, have mischaracterized the court’s
analysis. The court found that there were material inconsistencies in the deposition testimony of the four
individual defendants regarding the composition of the IRC, the timing of their appointments to the IRC,
and the content of the June 11 meeting. From those inconsistencies alone the court concluded that the
defendants were not candid in their claims about the June 11 meeting or the composition of the IRC.
The court was merely noting that the defendants had an opportunity to clarify the inconsistencies and
did not. In the absence of any explanation, the court adhered to its view that the individual defendants
lacked credibility in their deposition testimony. There was nothing inappropriate in drawing that
inference and adhering to it in the absence of any evidence to the contrary.
As for the July 15 letter, the court was correct to consider its content and tone in relation to all
of the other evidence about the job actions. The letter used inflammatory language and informed the
pilots that it was necessary to begin working on a new CBA “now,” more than eight months before the
2003 CBA allowed for negotiations to begin. In the context of everything else that was going on at the
time, the July 15 letter was one more piece of evidence that the increased sick leave, flight delays and
cancellations were not coincidental and could not be explained by the challenging operating conditions
No. 08-4157 Page 27
faced by the company. The district court did not err in finding that United clearly proved that the
defendants authorized and/or ratified the unlawful job actions.
D.
Finally, the defendants argue that the district court erred in finding the requirements of Section 7
of the NLGA satisfied, contending that the injunction was not necessary to prevent a violation of
Section 2, First of the RLA. The RLA, the starting point of our analysis, was enacted, in part, to avoid
interruptions to commerce or to the operation of carriers engaged in commerce. See 45 U.S.C. §
151a. The RLA seeks to encourage collective bargaining and to avoid wasteful strikes and
interruptions of interstate commerce. IAM, 243 F.3d at 361; ALPA, 802 F.2d at 895. In order to
accomplish this goal, Section 2, First of the RLA imposes on both management and labor a duty to
“exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and
working conditions, and to settle all disputes . . . in order to avoid any interruption to commerce or to
the operation of any carrier growing out of any dispute between the carrier and the employees thereof.”
45 U.S.C. § 152. The Supreme Court has characterized this duty as the heart of the RLA. See
Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78 (1969).
During all labor negotiations, the parties are obliged under the RLA to maintain the status quo with
respect to pay, work rules and working conditions. IAM, 243 F.3d at 361-62. If either management
or labor engages in conduct that violates the RLA, a court may enjoin the unlawful activity. IAM, 243
F.3d at 362.
But when a carrier is seeking to enjoin the activities of a union, “a court must look not only to
the RLA but also to the NLGA to determine whether the court has jurisdiction.” IAM, 243 F.3d at
No. 08-4157 Page 28
362 (quoting Delta Air Lines, Inc. v. Air Line Pilots Ass’n, 238 F.3d 1300, 1305 (11th Cir. 2001)).
As a general rule, the NLGA strips courts of jurisdiction to enter injunctions against labor unions in
cases growing out of labor disputes. Section 7 of the NLGA provides, in relevant part:
No court of the United States shall have jurisdiction to issue a temporary or permanent
injunction in any case involving or growing out of a labor dispute, as defined in this chapter,
except after hearing the testimony of witnesses in open court (with opportunity for
cross-examination) in support of the allegations of a complaint made under oath, and testimony
in opposition thereto, if offered, and except after findings of fact by the court, to the effect--
(a) That unlawful acts have been threatened and will be committed unless restrained or have
been committed and will be continued unless restrained, but no injunction or temporary
restraining order shall be issued on account of any threat or unlawful act excepting against the
person or persons, association, or organization making the threat or committing the unlawful act
or actually authorizing or ratifying the same after actual knowledge thereof;
29 U.S.C. § 107. Reading the RLA and the NLGA together, the Supreme Court has held that when a
challenged action violates a specific provision of the RLA (such as the status quo provisions), the court
may enter an injunction against a union using the standards set forth in the NLGA. Pittsburgh & Lake
Erie R.R. Co. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490, 513 (1989); IAM, 243 F.3d at 362.
As we stated in IAM, “the Court has carved out an exception from the NLGA’s general
prohibition on injunctive relief against union activity for violations of specific provisions of the RLA.”
243 F.3d at 362. However, “this exception is a limited one which applies only if an injunction is the
only, practical, effective means of enforcing the duty to exert every reasonable effort to make and
maintain agreements, or if that remedy alone can effectively guard the plaintiff's right.” IAM, 243 F.3d
at 362-63 (internal citations and quotation marks omitted). See also Burlington Northern & Santa
Fe Ry. Co. v. Brotherhood of Locomotive Eng’rs, 367 F.3d 675, 679 (7th Cir. 2004) (where there
No. 08-4157 Page 29
are other effective means available to ensure compliance with the provisions of the RLA, an injunction
should not issue).
The defendants contend that the district court erred in finding that the NLGA did not bar the
issuance of an injunction here. According to the defendants, United did not meet its burden of
demonstrating that any unlawful activity would continue in the absence of an injunction. The defendants
assert that the district court committed an error of law when it reversed the burden and required that the
defendants demonstrate that their unlawful conduct had ceased. The defendants maintain that United
presented no evidence that the company continued to suffer operational difficulties after the parties
entered into the Standstill Agreement. With the Standstill Agreement in place, the defendants argue,
there was no need to enter the injunction. At oral argument, we asked the defendants whether it was
ever appropriate to enter a preliminary injunction once a union had signed a “standstill agreement.” The
defendants said an injunction would be appropriate at that point only if there was also evidence that the
union’s subsequent actions and statements were not consistent with the standstill agreement.
In this case, the district court in fact found that the defendants’ subsequent actions and
statements were not consistent with the Standstill Agreement. Although some of the job actions
declined following the Standstill Agreement, some then increased again after the initial decline. For
example, although sick leave usage initially declined following the signing of the Standstill Agreement, it
then increased, albeit not to prior levels. And the post-Standstill sick leave usage, although lessened
from the peak of the sick-out, continued to greatly exceed expected levels of usage. The pilots also
continued to refuse junior/senior manning assignments at greatly reduced rates following the Standstill
Agreement. The district court was also aware that the promises made in the Standstill Agreement were
No. 08-4157 Page 30
not made in a vacuum. The court considered the history of ALPA’s actions in this dispute and in prior
labor disputes. During those disputes, as well as the current one, ALPA exerted great control over the
pilots. The pilots were aware that they would face harassment and ostracism if they failed to follow
ALPA’s directives. During the current dispute, when United asked for ALPA’s assistance in curbing
the sick-out, ALPA sent out a letter that, with a wink and a nod, actually resulted in an increase in sick
leave. ALPA continues to insist that the July 21 letter was a good faith effort to end the sick-out. The
district court was entitled to conclude that only an injunction would put a halt to the unlawful actions in
light of that continued insistence. Only when faced with the litigation did ALPA accede to the Standstill
Agreement and issue a directive that had any real effect on lowering sick leave usage. Even then, it did
not eliminate the problem. The court considered the defendants’ action in entering into the Standstill
Agreement as one factor among many in determining that “an injunction is necessary to enforce the
defendants’ status quo obligations under the RLA.” UAL, 2008 WL 4936847, *43.
We agree that a voluntary cessation of wrongful conduct is a factor for the court to consider in
deciding whether an injunction is necessary. See Milwaukee Police Ass’n v. Jones, 192 F.3d 742,
747 (7th Cir. 1999) (voluntary cessation of activity does not render a case moot unless the defendant
can demonstrate that there is no reasonable expectation that the wrong will be repeated).1 The
defendants have attempted to characterize the Standstill Agreement as a “voluntary” cessation of any
job actions. The district court, however, was within its discretion to find that an agreement signed only
1
We understand that the defendants are not arguing that the case is moot because of the
Standstill Agreement. Rather, the defendants claim that because of the Standstill Agreement, no
injunction is necessary under the NLGA and the preliminary injunction should be dissolved. We
nonetheless find the mootness cases relevant to the analysis of voluntary cessations.
No. 08-4157 Page 31
after a lawsuit has been filed is not voluntary, and that even a voluntary cessation is not determinative.
The court may consider how easily former practices might be resumed at any time in determining the
appropriateness of injunctive relief. Id. ALPA and the defendants had employed means of
communication, such as the telephone trees, that left no trail of evidence. Without the threat of
contempt, the district court could reason that ALPA would continue to say one thing in public and to
the court, and another thing to its members.
The SPC - the Strike Preparedness Committee - had been reactivated. ALPA had
demonstrated an ability to convey messages secretly to pilots who feared retaliation based on prior
experience. The individual defendants had been “less than candid” in their testimony. In combination
with the other facts we describe above, the court was within its discretion in finding that an injunction
was the only means of assuring compliance with the status quo provisions of the RLA. See Burlington
Northern, 367 F.3d at 678 (we review an order to grant or deny a preliminary injunction under a
highly deferential abuse of discretion standard).
III.
For the reasons stated above, we affirm the judgment of the district court.
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3003124/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 24, 2009*
Decided July 6, 2009
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09-1561
KENNETH C. GRIMES, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Evansville Division.
v.
No. 3:08-cv-00025-RLY-WGH
CSX TRANSPORTATION, INC.,
Defendant-Appellee. Richard L. Young,
Judge.
ORDER
Kenneth Grimes last worked for the Louisville & Nashville Railroad Company in
1981, several years before the railroad was merged into CSX Transportation, Inc. In 2008 he
filed this action against CSX, claiming that during his employment the railroad breached
several terms of its collective bargaining agreement with his union. The district court
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED . R. APP . P.
34(a)(2).
No. 09-1561 Page 2
dismissed the complaint, reasoning that the Railroad Labor Act, 45 U.S.C. §§ 151-188,
placed all of Grimes’ claims beyond its subject-matter jurisdiction.
Grimes was hired in 1976 as an electrician apprentice, but the railroad fired him that
same year for insubordination. His discharge was overturned in 1979 by the National
Railroad Adjustment Board, which ordered that Grimes be reinstated with full seniority
rights but without back pay. Grimes returned to work, but then in 1981 he was laid off for
economic reasons and never recalled. He immediately sued the railroad and his union,
raising several claims about his discharge, reinstatement and furlough. In that suit he also
challenged the Board’s decision not to award him back pay. All of his claims were decided
against him on the merits. See Grimes v. Louisville & Nashville R.R. Co., 583 F. Supp. 642 (S.D.
Ind. 1984), appeal dismissed,(7th Cir. Apr. 24, 1984); Grimes v. Louisville & Nashville R.R. Co.,
No. EV 81-130-C (S.D. Ind. Sept. 14, 1984), aff’d, 767 F.2d 925 (7th Cir. 1985) (unpublished
order). That was the end of the matter until two decades later when Grimes discovered
that the railroad had hired other electricians between 1995 and 2000 instead of recalling
him.
In his complaint, Grimes accuses the railroad of several contract breaches he
characterizes as “frauds.” The first, he says, was in 1976 when the railroad convened the
disciplinary panel that fired him for insubordination. That action, Grimes insists, was
beyond the railroad’s power to initiate because he already had been sanctioned with a
written reprimand for his infraction. Then in 1979, Grimes continues, the railroad again
violated the labor agreement by assigning him a lower apprentice rating that paid less and
impaired his seniority rights. This latter action, according to Grimes, not only violated the
Board’s directive that he be reinstated with full seniority, but also led to him being laid off
in 1981. What’s more, Grimes adds, the railroad then failed to recall him instead of
employees who otherwise would have had less seniority. He seeks only back pay and
benefits. Although Grimes asserts in his complaint that these facts give rise to claims under
the Railroad Labor Act as well as under Indiana law for fraud, the district court concluded
that the Railroad Labor Act provides the exclusive means for resolving disputes arising
under railway labor agreements.
Grimes contests the district court’s conclusion that it lacked subject-matter
jurisdiction, apparently arguing that his characterization of the railroad’s actions as
“fraudulent” takes his case outside the scope of the Railroad Labor Act. We review
de novo whether the district court had subject-matter jurisdiction over Grimes’ complaint.
See Int’l Union Pac. of Operating Eng’rs v. Ward, 563 F.3d 276, 278 (7th Cir. 2009).
Congress created the Railroad Labor Act to govern disputes between railroads and
their employees and thus minimize disruption to commerce. See 45 U.S.C. § 151a; Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994). As part of the statutory scheme, railroad
workers must turn first to internal procedures for resolving “minor” disputes, i.e., disputes
No. 09-1561 Page 3
that can be resolved only by interpreting a collective bargaining agreement. See Andrews v.
Louisville & Nashville R.R. Co., 406 U.S. 320, 324 (1972); Monroe v. Mo. Pac. R.R. Co., 115 F.3d
514, 516-18 (7th Cir. 1997). For a minor dispute that cannot be resolved internally, Congress
granted exclusive jurisdiction to adjudicate the matter to arbitrators on the National
Railroad Adjustment Board or an adjustment board established by agreement between the
railroad and a union. See 45 U.S.C. §§ 152 Sixth, 153 First (i); Consol. Rail Corp. v. Ry. Labor
Executives Ass’n, 491 U.S. 299, 303-04 (1989). A board’s factual findings are not subject to
judicial review, and district courts, although empowered to enforce board decisions, are
limited by the Railroad Labor Act to assessing whether the adjustment board complied
with the statute, whether it stayed within the scope of its mandate, and whether any
member of the board engaged in fraud or corruption. See 45 U.S.C. § 153 First (p), (q); Bhd.
of R.R. Signalmen v. Louisville & Nashville R.R. Co., 688 F.2d 535, 536-37 (7th Cir. 1982). In
short, district courts lack subject-matter jurisdiction to decide the merits of disputes arising
out of a collective bargaining agreement between a railroad and its employees. See
Hawaiian Airlines, 512 U.S. at 252-53. The legal theory underlying the dispute is
unimportant; the Railroad Labor Act broadly encompasses all disagreements bearing on
the labor agreement and precludes a district court from adjudicating even a dispute
ostensibly based on an independent source of federal or state law if “the interpretation of
some provision(s)” of the labor agreement “could be dispositive of the plaintiff’s claim.”
Brown v. Ill. Cent. R.R. Co., 254 F.3d 654, 664 (7th Cir. 2001).
The “fraud” label Grimes has attached to his allegations against the railroad is thus
unimportant, as are his references to Indiana law. His grievances against the railroad arise
from rights conferred, if at all, by the collective bargaining agreement which governed his
employment, and that labor agreement is thus central to resolving his contentions. They
are, in other words, “minor” disputes that, with one exception, are for an adjustment board
to decide without interference by the district court.
The exception is Grimes’ claim that the railroad disregarded, not the labor
agreement, but the 1979 ruling of the National Railroad Adjustment Board when the
railroad purportedly failed to fully restore his seniority rights. The facts giving rise to this
obscure theory of relief are buried within a few paragraphs of Grimes’ prolix complaint, so
it is understandable that the import of his allegations was overlooked by the district court.
But pro se complaints must be read liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972),
and we conclude that Grimes says enough in his complaint to state a claim for enforcement
of the Board’s decision. The district court, then, did have subject-matter jurisdiction to
review whether Grimes’ seniority rights were fully reinstated as ordered by the Board.
This limited jurisdiction, however, did not extend to the other actions of the railroad that
Grimes challenged; the collective bargaining agreement—not an order of the Board—is the
source of any rights Grimes had to avoid further discipline, to be protected from a layoff, or
to be recalled from his furlough. Similarly, although the Railroad Labor Act grants district
No. 09-1561 Page 4
courts jurisdiction to hear claims of fraud by members of the adjustment board, see 45 U.S.C.
§ 153 First (q), Grimes complains of fraud during the internal company proceedings, not by
any member of the adjustment board.
It follows that the district court was mistaken when it concluded that it lacked
subject-matter jurisdiction entirely. But the misstep does not require a remand because
Grimes’ suit against the railroad is frivolous. The district court would have been
empowered to ensure that Grimes’ seniority rights were properly reinstated, if not for the
fact that Grimes faced another, insurmountable obstacle: the Railroad Labor Act requires an
enforcement suit to be filed within two years of when a claim accrues. 45 U.S.C. § 153 First
(r). If the railroad flouted the Board’s reinstatement order by not fully restoring Grimes to
his former position when he returned to work, he certainly would have known about that
action in 1979 and should have sued years ago. Therefore, this one claim should have been
dismissed, not for lack of jurisdiction, but under Federal Rule of Civil Procedure 12(b)(6).
See Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008).
AFFIRMED | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002541/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1102
T OMMY S MITH, JR.,
Plaintiff-Appellant,
v.
M OISES G OMEZ, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-CV-114—Rudolph T. Randa, Chief Judge.
S UBMITTED JUNE 18, 2008 —D ECIDED D ECEMBER 15, 2008
Before C OFFEY, R IPPLE, and SYKES, Circuit Judges.
C OFFEY, Circuit Judge. Tommy Smith, a Wisconsin
prisoner, sued a number of law enforcement officers
After examining the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submitted
on the briefs and the record. See F ED . R. A PP . P. 34(a)(2).
2 No. 08-1102
including officers of the Milwaukee Police Department
(MPD) and employees of the Wisconsin Division of Com-
munity Corrections (DCC) and the Wisconsin Division of
Hearings and Appeals (DHA), as well as the governmental
entities themselves, arguing under 42 U.S.C. §§ 1983,
1985(3), and 1986 that the defendants conspired to deprive
him of his constitutional rights to “freedom, liberty, full
due process, and equal protection” after he was arrested
for being a felon in possession of a firearm and for at-
tempted armed robbery. As a result of the arrest, his parole
was revoked. The trial court resolved all claims in favor of
the governmental authority on various grounds, including
their absolute immunity as well as their qualified immu-
nity. Smith appeals, essentially repeating the same claims
he made in the trial court. We affirm.
The events leading to Smith’s complaint began on
February 13, 1999, when Milwaukee police detectives
found a handgun while investigating an unsuccessful
armed robbery. Some four days later on February 17, 1999,
they were able to trace the gun back to Smith’s cousin,
(Sharon Lewis), using its serial number. Detective Moises
Gomez and another detective, defendant Michael Grogan,
questioned Lewis about the gun. Initially she told the
officers during questioning that she owned the gun and
that it had been stolen. According to her testimony she
claims that the officers advised her that if she was truthful
and cooperative they would not arrest her. In response,
Lewis stated to the officers that on February 8 she had
ordered a gun for Smith, because he could not purchase
one as a convicted felon. Lewis told the police that on
February 10, she and Smith went to pick up the gun, she
No. 08-1102 3
had purchased it and turned it over to him. He later
reimbursed her for the weapon. Smith told Lewis to hide
the gun above a ceiling tile in her bedroom. On February
12, Smith retrieved the gun from Lewis’s home. Two days
later, “Mike G,” who, like, Smith, was a member of the
“Gangster Disciples gang,” told Lewis that the gun had
been lost during an attempted car robbery. Based on these
facts, Gomez determined that Smith should be arrested for
attempted armed robbery and possessing a firearm while
in the status of a convicted felon. Smith was arrested
without incident and charged with attempted armed
robbery as well as being a felon in possession of a firearm
on February 24 and sentenced to a concurrent term of one
year and nine months’ imprisonment. This sentence
occurred as a direct result of his parole violation and was
related to his 1992 conviction for armed robbery. While in
prison, he filed a petition for a writ of habeas corpus
concerning the circumstances of his arrest and subsequent
parole revocation, and released from confinement before a
decision was rendered.
The substance of Smith’s lawsuit centers around his
contention that he was arrested without probable cause
and that there was a conspiracy against him to deprive him
of his civil rights. Smith claimed that Gomez obviously did
not believe Lewis was telling the truth when she said it
was her gun since Gomez gave her a warning about
truthfulness. Smith argues that his arrest, which was
prompted by the story Lewis told the police, was false.
According to Smith, Officers Gomez, Grogan, and a third
police detective, Jon Sell, conspired with his parole agent,
defendant Dawn Davenport of the DCC, to deprive Smith
4 No. 08-1102
of his constitutional rights when they placed a parole hold
on him. Davenport put a parole hold on Smith after
receiving authorization from her supervisor, defendant
Irving Suesskind. Subsequently, defendant Andrew
Riedmaier, an Administrative Law Judge, held a hearing
and ordered the revocation of Smith’s parole for possessing
a firearm as a felon, and defendant William Lundstrom,
Assistant Administrator of the DHA, sustained the revoca-
tion.
At the initial screening, the trial court dismissed Smith’s
complaint without prejudice. See 28 U.S.C. § 1915A. The
court reasoned that because Smith’s claims are all based on
his allegation that the defendants conspired to arrest him
and revoke his parole, any determination in Smith’s favor
would necessarily imply the invalidity of the parole
revocation and confinement. Such claims are barred by
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), according to
the court. Heck holds that a § 1983 plaintiff seeking dam-
ages for an allegedly unconstitutional conviction, imprison-
ment, or other such harm must initially establish that the
conviction has been reversed, expunged, declared invalid,
or called into question by the issuance of a federal writ of
habeas corpus. The court concluded that since Smith had
not successfully challenged and invalidated his parole
revocation, Heck precluded any relief for him under § 1983
or other federal civil rights statutes.
Smith next filed a motion for relief from the screening
order. See F ED. R. C IV. P. 60(b). And Smith argued that his
complaint should not be Heck-barred because his petition
for a writ of habeas corpus was rendered moot at the time
No. 08-1102 5
of his release from prison. In April 2005 the trial court
agreed that Smith’s § 1983 claims were not barred by Heck
and permitted Smith to amend his complaint. However,
the court dismissed Smith’s claims under § 1985(3) and
§ 1986 and also dismissed as defendants the MPD, the
DCC, and the DHA. See Edelman v. Jordan, 415 U.S. 651, 663
(1974). Smith thereafter filed an amended complaint
against the following remaining defendants: Gomez,
Grogan, Sell, Davenport, Suesskind, Riedmaier, and
Lundstrom. The defendants were sued in their individual
capacities. See Wynn v. Southward, 251 F.3d 588, 593 (7th
Cir. 2001); Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000);
Hill v. Shelander, 924 F.2d 1370, 1372-73 (7th Cir. 1991).
In September 2006, after the pleadings were filed, the
trial court granted a motion to dismiss filed by Davenport,
Riedmaier, Lundstrom, and Suesskind, concluding that the
first three defendants were entitled to immunity and that
the only potential theory of liability for Suesskind would
be respondeat superior, which is not permitted under
§ 1983. See Pacelli v. DeVito, 972 F.2d 871, 878 (7th Cir. 1992).
The court also granted summary judgment to Gomez,
concluding that he was protected by qualified immunity
because a reasonable police officer would have believed
there was probable cause to arrest Smith. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
The only remaining defendants, therefore, were Sell and
Grogan. In May 2007 the trial court granted Sell’s motion
for summary judgment. Sell asserted that he was not
personally involved in the alleged constitutional violations
and submitted an affidavit to this effect. The trial court
6 No. 08-1102
determined that Smith had failed to submit any admissible
evidence to contradict Sell’s sworn assertions and con-
cluded that he had not been involved in the events sur-
rounding Smith’s arrest and parole revocation. And
finally, in December 2007, the trial court granted Grogan’s
motion for summary judgment and dismissed the case.
Grogan stated in an affidavit that he was not personally
involved in the alleged constitutional violations and that
he was entitled to qualified immunity. The court noted that
there was a disputed issue of material fact with respect to
whether Grogan was involved in Smith’s arrest. However,
the court also reasoned that since Smith’s arrest was
supported by probable cause no liability could attach. The
court also concluded that Grogan was not personally
involved in the decision to revoke Smith’s parole.
On appeal, Smith raises a host of arguments, disputing
nearly every ruling made by the trial court throughout this
protracted litigation. Most of his assertions are grounded
in his belief that the named defendants participated in a
conspiracy against him to deprive him of his civil rights.
We note at the outset that conspiracy is not an independent
basis of liability in § 1983 actions. See Cefalu v. Vill. of Elk
Grove, 211 F.3d 416, 423 (7th Cir. 2000). Moreover, many of
Smith’s claims on appeal are patently frivolous, consisting
of baseless accusations of unlawful conduct and fabrication
of evidence by the defendants. We conclude that the trial
court’s reasoning on all of the various appealed issues,
discussed at length below, are proper, and we commend
the court for its thorough treatment of Smith’s many
contentions.
No. 08-1102 7
First Smith challenges several of the rulings the trial
court made in its April 2005 order. Smith argues that the
court should not have dismissed the claims he made under
§ 1985(3) and § 1986 and should not have dismissed the
MPD, DCC, and DHA as defendants. He argues that his
status as a parolee was sufficient to meet the “otherwise
class-based” requirement of § 1985(3). Smith admits that
the MPD, DCC, and DHA are not sueable entities; however
he contends that the court should have accepted his
designating them as defendants as a “John Doe” identifica-
tion of the city of Milwaukee and State of Wisconsin. He
therefore contends that the city and state are responsible
for the inadequate supervision of their employees, which
permitted them to conspire against him.
The trial court’s reasoning on these questions is incontro-
vertible, however. Section 1985(3) prohibits a conspiracy to
deprive another of equal protection under the law such as
are alleged in Smith’s complaint, but the conspiracy must
be motivated by racial, or other class-based discriminatory
animus. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971);
Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002). Smith has
failed to sufficiently allege such animus because status as
a parolee is not considered a “suspect class” for equal-
protection purposes. And because Smith has failed to state
a § 1985 claim, his § 1986 claim fails as well. See Hicks v.
Resolution Trust Corp., 970 F.2d 378, 382 (7th Cir. 1992).
Smith asks that we remand this case to allow him to name
the city of Milwaukee and the state of Wisconsin as
defendants. However, the trial court previously permitted
Smith to amend his complaint—after informing him that
the MPD, DCC, and DHA would not be liable—and nor
8 No. 08-1102
did he add the city or the state as parties at that time. As a
result, any claim against them has been waived. In any
event, such a remand would be futile: the state of Wiscon-
sin is also not a proper defendant for a § 1983 action
because it has Eleventh Amendment immunity, see Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 66-67 (1989), and the
only theory of liability for the state and the city would be
respondeat superior which, as noted above, is not permissi-
ble in an action brought under § 1983.
Smith next challenges the trial court’s dismissal of
various defendants in its September 2006 order. In that
order, the court determined that Gomez and Lundstrom
were entitled to qualified immunity, that Davenport and
Riedmaier were entitled to absolute immunity, and that
there could be no liability for Suesskind under a
respondeat superior theory. Smith’s basic contention to
refute dismissal is that no reasonable officer could believe
there was probable cause for his arrest. And because there
was no basis for arrest, there was no lawful reason, accord-
ing to Smith, for his parole to be revoked.
Again, the trial court was correct in its evaluation of
Smith’s claims against these defendants. Quali-
fied-immunity claims are resolved by answering the two
questions set out in Saucier v. Katz, 533 U.S. 194, 201 (2001);
see also Purtell v. Mason, 527 F.3d 615, 621 (7th Cir. 2008).
First, the court “must consider . . . this threshold question:
Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct
violated a constitutional right?” Saucier, 533 U.S. at 201; see
also Jones v. Wilhelm, 425 F.3d 455, 460 (7th Cir. 2005). If the
No. 08-1102 9
answer to this question is “yes,” then “the next, sequential
step is to ask whether the right was clearly established” at
the time of the alleged violation. Saucier, 533 U.S. at 201.
The only question we need resolve, then, is whether
Smith’s right to freedom from unlawful search and seizure
was violated.
Upon review the undisputed evidence clearly establishes
that Smith’s rights were not violated. “Police ordinarily
have probable cause if, at the time of the arrest, the ‘facts
and circumstances within the officer’s knowledge . . . are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to
commit an offense.’ ” Wagner v. Washington County, 493
F.3d 833, 836 (7th Cir. 2007) (quoting Michigan v. DeFillippo,
443 U.S. 31, 37 (1979)). The parties agree with the following:
the gun the police recovered matched the serial number of
the gun owned by Lewis; Lewis is Smith’s cousin; Lewis
said that Smith paid for the gun; Lewis told police that
Smith took the gun from Lewis’s home on February 12,
1999; and Mike G told Lewis that the gun had been lost
during an attempted armed robbery. This evidence is
sufficient to establish probable cause for Smith’s arrest.
And it is well-established that when police officers have
probable cause, they may effect an arrest without a sup-
porting warrant. See Shipman v. Hamilton, 520 F.3d 775, 778
(7th Cir. 2008).
The trial court also properly determined that Davenport
and Riedmaier were entitled to absolute immunity. Daven-
port was a parole agent employed by the DCC, and
10 No. 08-1102
Riedmaier was an ALJ employed by the DHA. Addition-
ally, the absolute immunity enjoyed by judges for judicial
actions taken in accordance with their jurisdictional
authority extends to other officials, including ALJs, when
they perform functions that are “closely associated with the
judicial process.” See Cleavinger v. Saxner, 474 U.S. 193, 200
(1985); Forrester v. White, 484 U.S. 219, 225 (1988); see also
Dawson v. Newman, 419 F.3d 656, 662 (7th Cir. 2005).
“Parole board members are absolutely immune from suit
for their decisions to grant, deny, or revoke parole.” Wilson
v. Kelkhoff, 86 F.3d 1438, 1444 (7th Cir. 1996) (internal
quotation marks and citation omitted). And when officials
engage in activities that are “inexorably connected with the
execution of parole revocation procedures and are analo-
gous to judicial action” they are also entitled to absolute
immunity. Walrath v. United States, 35 F.3d 277, 282 (7th Cir.
1994) (internal quotation marks and citation omitted). The
challenged acts of Davenport and Riedmaier were un-
doubtedly well within the ambit of their absolute immu-
nity. Suesskind, as Davenport’s supervisor at the DCC,
authorized Davenport to place a parole hold on Smith.
Smith’s sole complaint about Suesskind was that he
thereby participated in the “conspiracy” against him to
deprive him of his civil rights. The same theory of absolute
immunity that applies to Davenport thus protects
Suesskind from liability as well.
The requirements for absolute immunity have similarly
been met with respect to Lundstrom. Lundstrom was an
assistant administrator with the DHA. According to the
record, Lundstrom had the same quasi-judicial responsibil-
ities as Riedmaier, though it is not clear whether he was
No. 08-1102 11
also an ALJ. Lundstrom reviewed Riedmaier’s findings,
found that Lewis’s statements were credible because they
went against her penal interests, and also found that her
statements demonstrated by a preponderance of the
evidence that Smith possessed a firearm in violation of his
parole. Therefore, his role was “functionally comparable”
to that of a judge’s. See Cleavinger, 474 U.S. at 200.
Smith next argues that the trial court should not have
dismissed Sell as a defendant in its May 2007 order.
According to Smith, Sell personally instructed Davenport
to put a parole hold on Smith, thus he allegedly partici-
pated in the conspiracy.
The trial court correctly granted Sell’s motion to dismiss
the claim against him. Sell submitted an affidavit to
support his assertion that his only role in the events was to
contact Davenport and inform her that Smith was the
subject of a criminal investigation. Smith has produced no
admissible evidence to establish that Sell had any further
personal involvement in the parole revocation. And, once
again, § 1983 does not create a claim based on collective or
vicarious responsibility. See Pacelli, 972 F.2d at 875; Sheik-
Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994).
In a related issue, Smith also challenges the court’s
“suppression” of his Exhibit A1. That exhibit consisted of
a memo from Grogan to Sell, which states that “if [Sell] can
get [Smith’s] agent to put a hold on him, please notify the
bureau.” According to Smith, because Davenport submit-
ted the document into evidence at Smith’s revocation
hearing, it should be admissible.
12 No. 08-1102
In its May 2007 order, the trial court ruled that this
document was inadmissible because it was not properly
authenticated. FED. R. C IV. P. 56(e); Article II Gun Shop, Inc.
v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006). But even if the
document were admissible it would not defeat summary
judgment for Sell. Davenport testified that a parole hold is
issued when a parolee violates the terms of parole, not
upon the request of police. Davenport also testified that her
decision to revoke Smith’s parole “was not driven by the
police,” and that “the police didn’t make that decision for
us.” The memo in question, therefore, proves nothing
against Sell.
Finally, Smith takes issue with the trial court’s grant of
summary judgment to Grogan in December 2007. We
disagree and hold that the court properly granted Grogan’s
motion for summary judgment. Putting aside the disputed
issue of whether Grogan had any personal involvement in
Smith’s arrest, Grogan, as a fellow police officer, is immune
from liability for the same reason as Gomez: Smith’s arrest
was supported by probable cause.
A FFIRMED.
12-15-08 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002590/ | In the
United States Court of Appeals
For the Seventh Circuit
F EBRUARY 2, 2009
Before
F RANK H. E ASTERBROOK, Chief Judge
R ICHARD A. P OSNER, Circuit Judge
JOEL M. F LAUM, Circuit Judge
M ICHAEL S. K ANNE, Circuit Judge
ILANA D IAMOND R OVNER, Circuit Judge
D IANE P. W OOD , Circuit Judge
T ERENCE T. E VANS, Circuit Judge
A NN C LAIRE W ILLIAMS, Circuit Judge
D IANE S. S YKES, Circuit Judge
JOHN D ANIEL T INDER, Circuit Judge
No. 06-3278
E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION,
Plaintiff-Appellant,
v.
L EE’S L OG C ABIN , INCORPORATED ,
Defendant-Appellee.
2 No. 06-3278
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 C 507—Barbara B. Crabb, Chief Judge.
The slip opinion issued on October 6, 2008, is A MENDED
to add the following language at the end of footnote 4
on page 12:
We caution that nothing in this opinion should be
read to suggest that the EEOC’s complaint failed to
state a claim; we hold only that the district court was
within its discretion to refuse to permit a change in
the claim under the procedural circumstances of this
case.
Otherwise, on consideration of the petition for panel
rehearing and for rehearing en banc, a majority of judges
have voted to deny rehearing. Circuit Judges Rovner,
Wood, Evans, and Williams voted to grant en banc re-
hearing.
It is therefore ordered that the petition for rehearing and
for rehearing en banc is D ENIED.
Circuit Judge Williams has written an opinion, which
Judges Rovner, Wood, and Evans have joined, dissenting
from the denial of the petition.
No. 06-3278 3
W ILLIAMS, Circuit Judge, joined by R OVNER, W OOD , and
E VANS, Circuit Judges, dissenting from the denial of rehear-
ing en banc. I do not think that the EEOC ever changed
its claim in this case. It alleged that a restaurant
improperly refused to hire a young woman “because it
learned she was HIV positive” and then submitted evi-
dence that she had “AIDS” to prove she was disabled
enough for ADA protection. The EEOC was punished for
doing so (its sanction was that critical evidence was
stricken, leaving a fictitious “evidentiary void”), because
the district court thought switching the disability from
HIV (in the complaint) to AIDS at the summary judgment
stage was a “gross departure from what [the EEOC]
alleged.” Notwithstanding the uncontroverted fact that
AIDS is just another name for the last stage of HIV, the
majority affirmed the district court’s ruling that the
EEOC “refashion[ed] its claim as one based on AIDS
rather than HIV.”
In my view, our treatment of this case raises serious
questions about our approach to ADA cases involving
complex disabilities. Given the procedural circumstances
of this case, where the majority relies on a purported
disconnect between the complaint and the evidence
submitted at the summary judgment stage rather than
discovery violations, I think this case merits rehearing
en banc.
To sum up the case very briefly: Korrin Stewart, who was
18 years old at the time, applied for a position as a
waitress at Log Cabin. A manager at the restaurant dis-
covered she was infected with HIV and wrote “HIV +” in
4 No. 06-3278
large capital letters across her application. The restaurant
did not hire Stewart. The EEOC filed a complaint alleging
that Log Cabin refused to hire Stewart “because it learned
she was HIV positive.” At the summary judgment stage,
the EEOC submitted evidence that Stewart’s condition
(which the affidavits refer to as “AIDS” or “HIV/AIDS”)
substantially limits one or more of her major life activi-
ties. The district court acknowledged that Stewart’s disease
caused serious limitations on a number of major life
activities, including self-care, eating, and reproduction. But
the district court struck the affidavits on the basis of its
judgment that a disability claim based on AIDS is a “gross
departure” from a claim based on “being HIV positive.”
The EEOC’s evidence only pertained to the “AIDS claim,”
reasoned the court, and could not be considered towards
the “HIV claim.” Because the court could find no evidence
that HIV (rather than AIDS) substantially impaired any of
Stewart’s major life activities, it granted summary judg-
ment to Log Cabin.
The majority opinion affirmed the district court on two
grounds that are problematic to me and merit en banc
consideration. First, by holding that the EEOC failed to
give adequate notice to Log Cabin when its com-
plaint alleged that Stewart was HIV positive (rather
than specifying that her HIV had advanced to the AIDS
stage), the majority imposed a higher pleading require-
ment for litigants with multi-stage disabilities. Although
this case was not decided on a Rule 12(b)(6) motion, the
EEOC was not allowed to rely on evidence regarding
Stewart’s disability (AIDS) for the sole reason that its
complaint alleged only “HIV positive.” Second, the major-
No. 06-3278 5
ity created a specific knowledge requirement in situations
involving employers who are aware of a disability but are
not aware of the actual extent of that disability.
I begin with the latter problem. The majority would
require an employer to know the extent to which a job
applicant is disabled in order to be held liable for
making decisions based on that disability. Slip op. at 12,
n.4 (speculating that the reason the EEOC did not plead
AIDS in its complaint is that there was no evidence Log
Cabin was aware Stewart had AIDS, which provided
another basis to affirm summary judgment). There is no
dispute that Log Cabin knew Stewart was HIV posi-
tive—indeed someone at Log Cabin wrote it across her
job application in large black letters. But Log Cabin main-
tained (and reiterates in its answer) that it did not know
Stewart’s HIV had progressed to the AIDS stage and
argued that it could not be held liable under the ADA for
taking an adverse action against an individual when it
had no knowledge of her disability. By holding that Log
Cabin’s lack of knowledge regarding Stewart’s AIDS
diagnosis provided an alternative basis for summary
judgment, the majority created a specific knowledge
requirement that goes beyond our holding in Hedberg v.
Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995) and
conflicts with the D.C. Circuit’s holding in Adams v. Rice,
531 F.3d 936, 953-54 (D.C. Cir. 2008).
Certainly an ADA plaintiff must demonstrate a causal
connection between an employer’s adverse action and its
knowledge of her disability. Hedberg, 47 F.3d at 932. In
Hedberg, however, the employer had no knowledge what-
6 No. 06-3278
soever that the plaintiff was even ill when it decided to
discharge him. See id. (“At the most basic level, it is intu-
itively clear when viewing the ADA’s language in a
straightforward manner that an employer cannot fire
an employee ‘because of’ a disability unless it knows of
the disability. If it does not know of the disability, the
employer is firing the employee ‘because of ’ some other
reason.”).
An important question is whether an employer must
know how far advanced a disability has progressed to
be liable under the ADA. The majority says yes, but I do
not think the ADA imposes such a requirement. Cf.
Sanglap v. LaSalle Bank, FSB, 345 F.3d 515, 520 (7th Cir.
2003) (“[L]iability for disability discrimination does not
require professional understanding of the plaintiff’s
condition. . . . It is enough to show that the defendant knew
of symptoms raising an inference that the plaintiff was
disabled.”). Recently, the D.C. Circuit considered this
very question at length in Adams v. Rice and held that “it
makes no difference whether an employer has precise
knowledge of an employee’s substantial limitation; as in
[Bragdon v. Abbott, 524 U.S. 624, 641-42 (1998)], it is
enough for the employer to know about the impairment.”
531 F.3d at 953.
In my view, the majority’s requirement creates an
insurmountable hurdle for ADA plaintiffs with complex
disabilities. The ADA protects people with disabilities
from employers who do not understand the precise
nature of their disabilities. I think it is fair to say that most
employers who discriminate on the basis of a disability
No. 06-3278 7
are ill-informed about that disability. Why should an
employer’s ignorance about a disease (especially a com-
plicated one like HIV, which has many stages and different
names) shield that employer from liability? See, e.g., Adams,
531 F.3d at 954 (“creating a knowledge requirement in
situations involving pure discrimination would shield
the most ignorant, irrational, and prejudiced employ-
ers—precisely the kinds of employers Congress intended
the Act to reach.”).
The majority’s holding that the EEOC’s complaint failed
to provide adequate notice to Log Cabin creates a new
burden as well. The majority faults the EEOC on two
counts regarding notice: the EEOC’s complaint “gave
notice that its ADA claim was grounded on discrimina-
tion because she was HIV positive, not because she had
AIDS,” slip op. at 9, and the EEOC did not state that
Stewart’s AIDS was the “actual basis for the discrimina-
tion alleged in the case,” id. at 10. The majority opinion
creates a requirement that an ADA plaintiff must plead
specific facts regarding her disability, including its stage
if the disease consists of multiple stages. A plaintiff who
fails to do so (as the EEOC did here by alleging that
Stewart was HIV positive and not specifying that she had
AIDS) risks losing her lawsuit at the summary judgment
stage. That is what happened here, where the EEOC was
punished for submitting evidence regarding AIDS when
its complaint alleged that Stewart had HIV. Even though
AIDS is merely a stage of HIV (Stewart’s disability can
be characterized as “being HIV positive” at all times
regardless of its exact stage), the majority held that the
EEOC had not provided sufficient notice to Log Cabin to
be able to rely on this evidence.
8 No. 06-3278
This, to me, is inconsistent with our case law regarding
general notice pleading standards. We have reiterated
that a complaint “need not set out either legal theories or
comprehensive factual narratives.” Rapid Test Products, Inc.
v. Durham School Services, Inc., 460 F.3d 859, 860 (7th Cir.
2006) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002)). Rather, all EEOC was required to do was plead its
grievance. That it did: it alleged that “Log Cabin refused
to hire Stewart because it learned that she was HIV posi-
tive.” The exact stage of HIV is a detail—and an irrelevant
one at that. The EEOC’s grievance is with Log Cabin’s
action, which is illegal if it was in fact based on her HIV.
See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)
(“we do not require heightened fact pleading of specifics,
but only enough facts to state a claim to relief that is
plausible on its face.”).
Based on this purported lack of notice, the majority
upheld the district court’s decision to strike evidence
regarding Stewart’s disability (AIDS) as manifestly rea-
sonable because the EEOC refashioned its claim (by
submitting evidence regarding AIDS at the summary
judgment stage when its complaint referenced only
HIV). As I explained in my dissent, the majority’s premise
that a claim based on HIV is factually different from a
claim based on AIDS is inconsistent with scientific and
medical experience. The amicus briefs point out that there
is no scientifically or medically recognized “bright line
distinction” between HIV and AIDS, and the two terms
are often used interchangeably or simply referred to as
“HIV/AIDS.” The majority responds that “the physical
effects of AIDS are different—more severe—than those
associated with being HIV-positive.” Not according to the
No. 06-3278 9
Supreme Court, which noted in Bragdon that “During [the
AIDS] stage, the clinical conditions most often associated
with HIV, such as pneumocystis carninii pneumonia,
Kaposi’s sarcoma, and non-Hodgkins lymphoma, tend to
appear.” 524 U.S. at 636. And not according to medical
experience. The amici assert that the term “AIDS” is
scientifically meaningless because not all persons diag-
nosed with AIDS have the same symptoms and with the
advent of antiretroviral therapy, some patients are able
to reverse the disease’s progress but retain the AIDS
diagnosis anyway. The district court’s approach, as I
explained further in my dissent, conflicts with the
Supreme Court’s instruction in Bragdon that although “HIV
infection satisfies the statutory and regulatory definition
of a physical impairment at every stage of the disease,”
courts should make disability determinations based on
individualized circumstances. 524 U.S. at 637. It also is
inconsistent with the Court’s instruction in Sutton v.
United Air Lines that disabilities should be evaluated on
an individualized basis rather than on generalizations
derived from the name of a disease alone. 527 U.S. 471, 483
(1999).
I think the majority’s holding creates problems for
victims of discrimination who suffer from HIV and other
complicated diseases with multiple stages. For these
reasons, as well as those in my dissenting opinion,
I respectfully dissent from the denial of the petition for
rehearing en banc.
2-2-09 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002597/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1774
T HEODIS N ELMS, JR.,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:06-cv-00273-CNC—Charles N. Clevert, Jr., Judge.
A RGUED O CTOBER 16, 2008—D ECIDED JANUARY 28, 2009
Before R IPPLE, E VANS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Theodis Nelms, Jr., sought Social
Security disability benefits, but an administrative law
judge determined that he can perform light work. On
appeal Nelms, who was without counsel before the ALJ,
contends that the ALJ did not adequately develop the
record in violation of his duty to unrepresented claimants.
Additionally, Nelms argues that the ALJ ignored certain
environmental restrictions when assessing Nelms’s resid-
2 No. 08-1774
ual functional capacity. We agree with Nelms that the
record is inadequate and therefore remand for further
proceedings before the agency.
Background
Nelms applied for Supplemental Security Income
benefits in June 2002. He listed as impairments pneumonia,
recovery from open-heart surgery, and asthma. In his
application Nelms wrote, “If I walk, lift or do anything too
strenuous I get out of breath.” After the Social Security
Administration twice denied his application, Nelms
requested a hearing.
A. Hearing
Nelms appeared at his hearing in June 2005 without
counsel. After a few questions about Nelms’s work history,
the ALJ addressed the possibility of representation,
explaining that “I don’t give somebody credit just because
they have an attorney”; still, the ALJ continued, the
Social Security Administration believes “that having an
attorney is a good idea.” The ALJ explained the role of an
attorney but also noted the ALJ’s independent duty to
create a record:
I think the thinking must be that an attorney can
talk to you, keep you company at the hearing, ask
additional questions when I’m done, look over
your file, see if it looks reasonably complete and so
on. It looks pretty complete. You’ve brought in
No. 08-1774 3
additional information here and so on. We do
much of that anyway.
After the ALJ described the costs typically associated with
an attorney in the Social Security setting, Nelms replied,
“I’d rather talk to you.”
Proceeding with the hearing, the ALJ asked Nelms to
rank his medical problems. Nelms stated that his heart
was the worst, followed by his back, his legs, and his
asthma, in that order. Regarding his heart Nelms ex-
plained, “I have shortness of the breath and, you know,
that also happen[s] with asthma and plus they cut me
open. I got a stent in my heart, you know.” Nelms de-
scribed an inability to sleep at night because of severe
pain, which he believes to be the onset of arthritis. Nelms
also reported that his doctor had prescribed Methadone
to alleviate the pain in his back and in his legs, although
the medication was “not helping that much.” Nelms
testified, moreover, that he experiences soreness in his
lower back “[a]ll day every day,” with a brief respite
only immediately after taking the medication. As for his
respiratory problems, Nelms mentioned that his asthma
strikes when he is near dust or pollen outside and when
he is hot or cold. Nevertheless, Nelms exercises and
walks every day per his doctor’s instructions, albeit with
limitations. “I can walk probably about a good two
blocks before I really get messed up,” Nelms testified, “but
here lately, you know, since I’ve been hurting, you know,
I can’t walk half a block.” Furthermore, Nelms stated
that since surgery he has done “little odd jobs,” including
raking leaves and shoveling snow. Nelms described his
4 No. 08-1774
daily activities in detail—how each morning he cooks
himself breakfast, cleans up, goes for a walk, does
laundry, and, later, perhaps goes to the grocery store
with his step-mother before cooking himself dinner.
Although Nelms “used to party a lot,” he testified that
his drinking is down to two or three beers each day and
he is generally home by 9:00 p.m.
After approximately twenty minutes of questioning,
the ALJ remarked, “I can’t think of anything else to ask.
Anything else I should know?” Nelms clarified a few
points about his education and work history, and with
that the hearing ended.
B. Medical Evidence
In May 2002 Nelms was admitted to a hospital in Mil-
waukee, Wisconsin, after he was found unresponsive
in his home. He was diagnosed with pneumonia, respira-
tory failure, overheating (hyperthermia), inflammation
of the heart (endocarditis), delirium likely caused by
alcohol withdrawal (delirium tremens), an abnormally
low concentration of sodium in the blood (hyponatremia),
and low blood pressure (hypotension). During his
hospital stay, Nelms’s doctors replaced his mitral valve (a
heart valve) with a mechanical substitute, and the
surgery was a success. Nelms was discharged from the
hospital in June 2002.
Over the next four months Nelms attended
cardiopulmonary rehabilitation sessions, where he would
walk on a treadmill, lift weights, and ride a stationary
No. 08-1774 5
bicycle. The parties agree that “Mr. Nelms generally
tolerated the exercises well.”
In December 2002 Dr. Patricia Chan, a non-examining
state-agency physician, assessed Nelms’s residual func-
tional capacity. Dr. Chan opined that Nelms could
perform the lifting, sitting, and standing exertions associ-
ated with light work.
Nelms was hospitalized again in March 2003—this time
for intra-abdominal bleeding, over-anticoagulation, and
kidney failure (renal insufficiency) resulting from a
mixture of alcohol and prescription anticoagulants. He
was discharged one week later with instructions to
abstain from alcohol and “not to double dose.”
Five months later Dr. Robert Callear, another non-
examining state-agency physician, assessed Nelms’s
residual functional capacity. Like Dr. Chan, Dr. Callear
concluded that Nelms could perform the duties
associated with light work. Dr. Callear did note, however,
that Nelms should avoid concentrated exposure to
fumes, odors, dust, gases, and poor ventilation.
From 2002 to 2003 Nelms met with a number of other
doctors, often to seek pain relief or for check-ups related
to his surgery. Of those visits, two appear to be signifi-
cant. In April 2003 Dr. Ijaz Malik reported that Nelms
was not yet ready to return to work following
several episodes of internal bleeding. And in May 2003
Dr. Marcin Turecki prescribed a stronger prescription
pain medication when Tylenol proved insufficient to
treat Nelms’s back pain.
6 No. 08-1774
The record is silent on Nelms’s condition from mid-2003
to 2005 (his hearing date) with one exception—a four-line
report from Nelms’s primary-care physician, Dr. Pablo
Bozovich, dated April 2005. Dr. Bozovich wrote that
Nelms’s condition is “stable” with respect to his mitral-
valve replacement. Furthermore, Dr. Bozovich noted,
Nelms suffers from mild spinal stenosis and chronic back
pain, but his pain is “controlled w/ oral medication,” and
his asthma is stable as well.
C. ALJ Decision
The ALJ began his written decision by acknowledging
that Nelms had not engaged in substantial gainful activity
since his alleged onset date. Still, the ALJ noted that
Nelms’s heart surgery went “beautifully well,” that his
rehabilitation indicated a smooth recovery, and that his
complaints of debilitating pain were sporadic. According
to the ALJ, the medical record documented steady im-
provement since Nelms’s hospitalization in 2002:
[The record] paints a picture of a bad medical
episode in the Spring of 2002, which lasted much
less than a year. It also paints a picture of recov-
ered capacity for work even with the continued
substance abuse and paints a picture of a situation
well within the scope of the light capacity voca-
tional rules. It also shows strong causal contribu-
tions of substance abuse to the claimant’s reduced
condition but not anything like a disabling condi-
tion even with the substance abuse. More than that,
No. 08-1774 7
the record shows that, were the claimant not to
drink and not to smoke, to follow a better diet, and
to use his medicines as prescribed, his capacity
might even approach full medium exertional
levels.
The ALJ compared the favorable reports of Drs. Chan and
Callear with the lesser capacity alleged by Nelms but
discounted Nelms’s testimony because “he is not very
credible.” Nelms’s testimony regarding his symptoms
was unconvincing and inconsistent, the ALJ wrote. Ac-
cording to the ALJ, Nelms’s resistance to medical advice
and his continued drinking—however reduced—also
undermined his claim.
Ultimately the ALJ agreed with Nelms that his heart
condition, his asthma, his alcohol abuse, and his back pain
are severe impairments—but these impairments do not,
according to the ALJ, meet or otherwise equal a listed
impairment. Next the ALJ found that Nelms cannot
perform any of his past relevant work, which was “me-
dium or greater in exertional demands and had other
demands.” But, the ALJ continued, Nelms retains the
residual functional capacity “for a full range or nearly
full range of light jobs and for some medium jobs at
the exertionally lower end of the medium range.”
The ALJ concluded that Nelms’s asthma does not
prevent him from light work because it is “slight” and not
a “significant environmental impairment.” Nelms listed
his asthma as the least significant of his impairments.
And it is not a new problem, according to the ALJ, nor
did it prevent Nelms from working in the past. The ALJ
8 No. 08-1774
did, however, acknowledge that heat and some outdoor
conditions can aggravate Nelms’s condition. “[E]ven if
the claimant should avoid outdoor work on warm,
humid days or avoid work in hot work places,” the ALJ
wrote, “nevertheless the sedentary and light categories
of work contain great numbers of jobs and many occupa-
tional opportunities still open to the claimant.” Thus, the
ALJ found that Nelms is not disabled on account of his
ability to perform light work found in the national econ-
omy.
The Appeals Council denied Nelms’s subsequent
request for review. The district court affirmed the deci-
sion of the Commissioner.
Analysis
If the Appeals Council denies a request for review, as it
did here, the ALJ’s decision becomes the final decision
of the Commissioner of Social Security. Getch v. Astrue,
539 F.3d 473, 480 (7th Cir. 2008). This court will reverse
an ALJ’s denial of disability benefits only if the decision is
not supported by substantial evidence or is based on an
error of law. 42 U.S.C. § 405(g); Skinner v. Astrue, 478
F.3d 836, 841 (7th Cir. 2007); Rice v. Barnhart, 384 F.3d 363,
368-69 (7th Cir. 2004). Substantial evidence includes
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and quotation
marks omitted); see Getch, 539 F.3d at 480.
Nelms first asserts that the ALJ did not adequately
develop the record—an obligation that was heightened by
No. 08-1774 9
Nelms’s decision to proceed without counsel. In particular
Nelms takes issue with the absence, save for Dr. Bozovich’s
note, of any medical records from mid-2003 to 2005—a
period in which, Nelms argues, some of his impairments
worsened. Medical documents from that period, Nelms
contends, attest to severe degenerative changes in
Nelms’s back and hips and “strongly support” a finding of
disability. Nelms also points to the length of the hear-
ing—25 minutes—as further proof that the ALJ did not
fully and fairly develop the record in this case.
While a claimant bears the burden of proving disability,
the ALJ in a Social Security hearing has a duty to develop
a full and fair record. See Smith v. Apfel, 231 F.3d 433, 437
(7th Cir. 2000); Thompson v. Sullivan, 933 F.2d 581, 585
(7th Cir. 1991). This duty is enhanced when a claimant
appears without counsel; then the ALJ must “ ‘scrupu-
lously and conscientiously [ ] probe into, inquire of, and
explore for all the relevant facts.’ ” Thompson, 933 F.2d at
585-86 (quoting Smith v. Sec. of Health, Educ. & Welfare, 587
F.2d 857, 860 (7th Cir. 1978)); see Nelson v. Apfel, 131 F.3d
1228, 1235 (7th Cir. 1997). Although pro se litigants must
furnish some medical evidence to support their claim, see
Johnson v. Barnhart, 449 F.3d 804, 808 (7th Cir. 2006), the
ALJ is required to supplement the record, as necessary, by
asking detailed questions, ordering additional examina-
tions, and contacting treating physicians and medical
sources to request additional records and information.
20 C.F.R. §§ 416.912(d)-(f), 416.919, 416.927(c)(3); see Reefer
v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (holding 700-
page record inadequate because it lacked detail about
certain impairments); Thompson, 933 F.2d at 587.
10 No. 08-1774
This court generally upholds the reasoned judgment of
the Commissioner on how much evidence to gather, even
when the claimant lacks representation. See Luna v. Shalala,
22 F.3d 687, 692 (7th Cir. 1994); Binion v. Shalala, 13 F.3d
243, 246 (7th Cir. 1994). Accordingly, “a significant omis-
sion is usually required before this court will find that
the [Commissioner] failed to assist pro se claimants in
developing the record fully and fairly.” Luna, 22 F.3d at
692. And an omission is significant only if it is prejudicial.
See Nelson, 131 F.3d at 1235. “Mere conjecture or specula-
tion that additional evidence might have been obtained
in the case is insufficient to warrant a remand.” Binion,
13 F.3d at 246. Instead a claimant must set forth
specific, relevant facts—such as medical evidence—that the
ALJ did not consider. Nelson, 131 F.3d at 1235; see Binion,
13 F.3d at 245 (“Prejudice may be demonstrated by show-
ing that the ALJ failed to elicit all of the relevant infor-
mation from the claimant.”); Echevarria v. Sec’y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (significant
gaps in the record may preclude a fair and adequate
hearing).
Nelms argues that the two-year evidentiary gap is a
significant omission, and we agree. Nelms filed, in this
court, a separate appendix of medical records from 2003,
2004, and 2005 for the limited purpose of demonstrating
prejudice. That appendix contains various examination
reports and diagnoses from the same Wisconsin hospital
where Nelms had his surgery. The documents, moreover,
support Nelms’s theory that the ALJ likely would have
No. 08-1774 11
found Nelms disabled had he considered them 1 —or even
if he had simply asked more questions about recent
developments. See Binion, 13 F.3d at 246. For example, a
CT scan in January 2004 revealed, for the first time, degen-
eration of Nelms’s thoracic and lumbar spine with a
“diffuse disk bulge” and “posterior spurring.” Although
subsequent notes convey that Nelms “has good control [of
his back pain] with Ultran 50 mg once daily as needed”
and “this pain is getting better,” Nelms later reported that
“[i]t is worse when [he] sits and gets better when he
stands up.” And by February 2005, Nelms’s back pain was
acute, “especially when he stands up. He feels weak,
especially when he has to do that. . . . This is due to disc
disease.” Moreover, Nelms began to experience a
limited range of motion in his hips sometime in 2004,
which turned out to be from “[s]evere degenerative
changes of both hips.” An examination revealed “severe
joint space narrowing, along with spurring of the
femoral head” in Nelms’s left hip, as well as “marked
joint space narrowing, along with femoral spurring” in
Nelms’s right hip.
1
The government accuses Nelms of “selectively omitt[ing]”
some medical evidence from 2003 to 2005 that suggests that
his back pain was manageable (with medication). But that
charge is baseless, and it misses the point. Nelms does not
purport to enter new evidence into the record at this stage;
rather, he furnishes just enough evidence to establish that the
ALJ did not fulfill his duty to create a fair and full record—one
that will include both favorable and unfavorable informa-
tion once complete.
12 No. 08-1774
These are precisely the sort of specific, relevant facts that
an ALJ is expected to consider when determining
disability in a pro se claimant. See Binion, 13 F.3d at 246.
No doubt a “complete” record is always elusive, see John-
son, 449 F.3d at 808; Luna, 22 F.3d at 692; Kendrick v. Shalala,
998 F.2d 455, 456-57 (7th Cir. 1993), and there is no
absolute requirement that an ALJ update the medical
records to the time of the hearing, see Luna, 22 F.3d at 692-
93. But here the ALJ was aware that Nelms was still
receiving treatment in 2005 and that his back pain was
severe and continuing. His leg pain persisted as well. Yet
the ALJ did not probe, in any depth, Nelms’s recent past
at the hearing or gather any medical evidence to fill
the two-year gap in the record. Had the ALJ done so, he
would have uncovered documentation of orthopedic
decline. This is particularly troubling in light of the ALJ’s
assurances that he would independently assemble a
“reasonably complete” record. Unlike in previous cases,
this was not a “marginal hearing” that nevertheless
provided “a fairly complete picture” of Nelms’s impair-
ments. See Nelson, 131 F.3d at 1236. Nor was it a situa-
tion in which an unrepresented claimant reassured the
ALJ that no additional medical records exist. See Johnson,
449 F.3d at 808. Thus, we cannot say that the ALJ ade-
quately developed the record.
There is a secondary matter that also deserves com-
ment. Nelms also argues that the ALJ did not consider the
combined effects of Nelms’s impairments when deter-
mining disability. He asserts in his brief, “it was illogical
for the ALJ to on one hand find Plaintiff’s asthma was a
severe impairment, but on the other hand, include no
symptoms or limitations related to asthma in Plaintiff’s
No. 08-1774 13
RFC.” Nelms insists further that “the ALJ included no
environmental restrictions in[ ] Plaintiff’s residual func-
tional capacity assessment.” But the ALJ’s opinion devotes
considerable attention to Nelms’s respiratory limita-
tions—and concludes that “even if the claimant should
avoid outdoor work on warm, humid days or avoid work
in hot work places, nevertheless the sedentary and light
categories of work contain great numbers of jobs and
many occupational opportunities still open to the claim-
ant.” To this Nelms offers essentially two responses: first,
that the ALJ should have explicitly addressed his need to
avoid concentrated exposure to dust, pollen, fumes, odors,
and gases, and second, that the ALJ could not assume
that such jobs exist without the assistance of a vocational
expert.
Nelms’s arguments on this point are unpersuasive. The
ALJ pressed Nelms on his environmental restrictions at
length—and Nelms himself emphasized that his asthma
manifests when he is exposed to dust and pollen outside.
When it does, Nelms overheats, and his solution is to go
inside. The ALJ’s discussion of restrictions on outside
work in warm environments speaks directly to these
respiratory limitations, and it is clear from the record
that the ALJ considered Nelms’s environmental restric-
tions in tandem with his other impairments. See Getch,
539 F.3d at 481 (ALJ does not have to provide complete
written evaluation of every piece of testimony and evi-
dence).
Nelms cites Warmoth v. Bowen, 798 F.2d 1109 (7th Cir.
1986), in support of his argument that a vocational expert
was needed. In Warmoth this court rejected an ALJ’s
14 No. 08-1774
conclusory determination that most sedentary jobs do
not expose workers to any environmental irritants. Id. at
1110. After an accident in which an industrial machine
spilled toxic chemicals on his face, Warmoth was unable
to tolerate even the slightest amount of second-hand
smoke or perfume. Id. at 1110-11. Notably, though, this
court did not require that the ALJ consult a vocational
expert on remand: “we only require that there be
reliable evidence of some kind that would persuade a
reasonable person that the limitations in question do not
significantly diminish the employment opportunities
otherwise available.” Id. at 1112; see also 20 C.F.R.
§ 416.966(e); Binion, 13 F.3d at 246 (explaining that use of
a vocational expert is discretionary).
This case is not so severe. In essence the ALJ assumed
that some light work exists in the national economy that
does not present a threat of concentrated exposure to
dust, pollen, fumes, gases, odors, or poor ventilation. Of
course, a vocational expert would be uniquely qualified to
answer this question—and the ALJ may wish to enlist
one on remand—but the ALJ’s assumption alone is not so
outlandish as to warrant reversal. See Luna, 22 F.3d at
691 (“this court has said that in cases where a non-
exertional limitation might substantially reduce a range
of work an individual can perform, the ALJ must consult
a vocational expert.”) (emphasis added); Social Security
Ruling 85-15, 1985 WL 56857, at *8 (Nov. 30, 1984) (“Where
a person has a medical restriction to avoid excessive
amounts of noise, dust, etc., the impact on the broad world
of work would be minimal because most job environ-
ments do not involve great noise, amounts of dust, etc.”)
(emphasis added).
No. 08-1774 15
So, although the ALJ’s treatment of the combined effects
of Nelm’s impairments does not justify reversal, his
failure to develop the record as discussed above does.
Therefore, because substantial evidence does not support
the ALJ’s decision, we R EVERSE the judgment of the
district court and R EMAND for further proceedings
before the agency.
R IPPLE, Circuit Judge, concurring. I am pleased to join the
judgment and the comprehensive opinion of the court.
I write separately simply to underline the inherent unfair-
ness in the ALJ’s having assured Mr. Nelms that the
judge had an independent responsibility to develop the
record and then leaving such a wide gap in the develop-
ment of the relevant medical history.
Although the cold record is difficult to assess on this
matter, I am concerned here that the ALJ’s colloquy with
Mr. Nelms may well have had the unintentional effect of
dissuading him from retaining counsel. An ALJ must be
very circumspect, and even-handed, in his advice to a
litigant and, here, Mr. Nelms may well have interpreted
the ALJ’s advice as expressing the ALJ’s personal view that
no attorney was needed.
1-28-09 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3002726/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 25, 2009*
Decided February 26, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐3035
QIN HUI CHEN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A78 293 175
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Qin Hui Chen, a citizen of China, petitions for review of an order by the Board of
Immigration Appeals denying her motion to reopen her removal proceeding. Because this
court lacks jurisdiction to review discretionary decisions by the Board, see Kucana v.
Mukasey, 533 F.3d 534 (7th Cir. 2008), we dismiss the petition for lack of jurisdiction.
Chen arrived at Chicago’s O’Hare International Airport in December 2000 without
entry documents. Subsequently, she filed a petition for asylum, withholding of removal,
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the petition is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐3035 Page 2
and protection under the Convention Against Torture. In her petition, she alleged that she
suffered persecution, including fines, a forced abortion, and forced sterilization, for
violating China’s family planning policies. See 8 U.S.C. § 1101(a)(42)(A). In October 2001
the immigration judge found that Chen was not credible and denied relief. Chen’s appeal
to the Board in July 2002, filed well past the 30‐day deadline, see 8 C.F.R. § 1003.38(b), was
dismissed as untimely. Chen then filed a series of motions to reopen, attempting to show,
among other things, that she had been forcibly sterilized and that she had received
ineffective assistance of counsel. The Board denied each of these motions. Chen’s petition
for review to us is timely only as to the Board’s denial of Chen’s latest motion to reopen. See
8 U.S.C. § 1252(b)(1); Sharashidze v. Mukasey, 542 F.3d 1177, 1178‐79 (7th Cir. 2008).
Motions to reopen are generally committed to the discretion of the Board. See 8
C.F.R. § 1003.2(a). We lack jurisdiction to review the Board’s denial of a motion to reopen
removal proceedings unless the petitioner presents a constitutional issue or a question of
law. Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008); Kucana, 533 F.3d at 538. A question
of law arises when the Board has misinterpreted a statute, regulation, or constitutional
provision, misread its own precedent, applied the wrong legal standard, or failed to exercise
its discretion. Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir. 2008); Huang, 534 F.3d at 620.
In her petition, Chen argues only the merits of her original asylum application. She
presents no legal question about the Board’s refusal to reopen her proceeding—a decision
grounded in factual findings that Chen’s motion was both untimely and number‐barred
under 8 C.F.R. § 1003.2(c)(2). Those are each factual determinations that we may not
review. See Johnson v. Mukasey, 546 F.3d 403, 404‐05 (7th Cir. 2008); Sharashidze, 542 F.3d at
1179; Huang, 534 F.3d at 622‐23. To the extent that Chen also asks us to review other aspects
of her earlier proceedings, those too are unreviewable because her petition is untimely as to
the earlier agency decisions. See 8 U.S.C. § 1252(b)(1); Sharashidze, 542 F.3d at 1178‐79; Asere
v. Gonzales, 439 F.3d 378, 380 (7th Cir. 2006).
For these reasons, the petition for review is DISMISSED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3003309/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2009*
Decided July 24, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-4295
Appeal from the United States District
STEVEN LANG, Court for the Northern District of
Plaintiff-Appellant, Illinois, Eastern Division.
v. No. 06 C 1058
TCF NATIONAL BANK & JP Matthew F. Kennelly,
MORGAN CHASE BANK, Judge.
Defendants-Appellees.
ORDER
Steven Lang sued TCF National Bank and Washington Mutual Bank (now JP
Morgan Chase Bank) for violating the Fair Credit Reporting Act by failing to correct credit
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP.
P. 34(a)(2).
No. 08-4295 Page 2
information that he deemed inaccurate. See 15 U.S.C. §§ 1681n, 1681o, & 1681s-2. The
district court granted the defendants’ motions for summary judgment, and we affirm.
Lang once had personal checking accounts at both banks. In October 2003 Lang
opened an account at Washington Mutual Bank. The bank closed that account one year
later when Lang had an overdraft balance of $1,224.97. The next day, Washington Mutual
reported Lang to ChexSystems, a consumer reporting agency, for “overdrafts,” but it did
not report any outstanding debt. Washington Mutual then hired a collection agency to
recover the outstanding debt, and in September 2005 Lang settled that debt. Lang also had
a checking account at TCF, and in 2003 he incurred forty overdraft fees for non-sufficient
funds and wrote eight checks that were returned unpaid. In December 2003, TCF closed
that account—which was overdrawn by $124—and absorbed the loss. TCF reported the
account to ChexSystems for “Non-Sufficient funds (NSF) activity” without mentioning any
current debt.
In September 2005, Lang submitted a “Request for Reinvestigation” to ChexSystems.
He disputed a report from ChexSystems in which the two banks describe him as having
had “overdrafts” and “Non-Sufficient funds.” Lang complained to ChexSystems, “The
information on your report is inaccurate and should be removed. I owe no monies to any
of the institutions listed above. Please correct your information.” ChexSystems sent a
“Request for Reinvestigation” to both banks. The request from ChexSystems did not
include Lang’s denial of outstanding debt. Instead, the request stated only that the banks
had reported overdraft or non-sufficient fund activities, and that Lang disputed these
reports as “inaccurate.” Washington Mutual responded to ChexSystems and confirmed
Lang’s overdrafts, stating also that “the report is correct.” TCF confirmed the information
as well, advising that when Lang’s account was closed, it was reported for non-sufficient
funds activity.
Lang sued TCF, Washington Mutual, and ChexSystems (with whom he later
settled). He alleged that because he owed no money to the banks, they provided inaccurate
information to ChexSystems and failed to correct their errors, in violation of the Fair Credit
Reporting Act. After extensive discovery, the district judge granted the defendants’
motions for summary judgment. The judge analyzed two provisions of the FCRA:
§ 1681s-2(b) (obligating banks to investigate requests from credit reporting agencies) and
§ 1681s-2(a) (obligating banks to furnish accurate information). The district court found
that Washington Mutual and TCF met their obligations under § 1681s-2(b) to conduct an
investigation and report to ChexSystems any discovered inaccuracies. The court also
concluded that Lang could not sue the banks under § 1681s-2(a) because that provision
allows for no private right of action. See 15 U.S.C. § 1681s-2(c).
No. 08-4295 Page 3
On appeal Lang argues that the district court erred in concluding that the
defendants had met their obligations to investigate the disputed credit information. Lang
maintains that had the defendants displayed due diligence, they would have discovered
that all debts had been paid. We review the district court’s grant of summary judgment de
novo, construing the evidence in Lang’s favor. Autozone, Inc. v. Strick, 543 F.3d 923, 929 (7th
Cir. 2008).
As relevant here, under 15 U.S.C. § 1681s-2(b) once the banks received notice of a
dispute from ChexSystems, they were required to (a) investigate the disputed information;
(b) review the relevant information “provided by” ChexSystems; and (c) report the results
to ChexSystems. TCF and Washington Mutual’s obligations to investigate were thus
limited to the disputed information “provided by” ChexSystems. And, according to that
information, Lang disputed only historical information: that he previously had
“overdrafts” and account closures for “insufficient funds.” The defendants investigated
these disputes and confirmed to ChexSystems that these historical reports were accurate.
Even Lang acknowledges that he had had overdraft and insufficient fund activities at the
banks, and this concession demonstrates that the reports were accurate. The banks are not
liable for the failure to address Lang’s other dispute (that he had no current debt to the
banks) because ChexSystems did not provide that dispute to the banks in its request for
investigation. See Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir. 2005). Lang
counters that he communicated the true nature of his dispute with the ChexSystems
report—that the report misrepresented him as having outstanding debt to the
banks—directly to the banks, and they ignored it. But as the district court correctly pointed
out, Lang presents no evidence to support this contention. And even if the banks had
become aware of Lang’s dispute by other means, they were required to investigate only the
information reported by ChexSystems. See id. § 1681s-2(b) .
Lang next argues that the district court erred in concluding that there was no private
right of action to enforce the banks’ duties under § 1681s-2(a) to furnish accurate
information to the reporting agency. Lang argues that the statute is silent on whether there
is a private right of action, but he is wrong. Section 1681s-2(c) specifically exempts
violations of § 1681s-2(a) from private civil liability; only the Federal Trade Commission
can initiate a suit under that section. See Perry v. First Nat. Bank, 459 F.3d 816, 822 (7th Cir.
2006); see also Gorman v. Wolpoff & Abramson, LLP, 552 F.3d 1008, 1020 n. 13 (9th Cir. 2009);
Saunders v. Branch Banking And Trust Co. Of VA, 526 F.3d 142, 149 (4th Cir. 2008).
Finally, Lang argues that Washington Mutual breached its contract with him by
considering his payment on his debt as a partial payment as opposed to a settlement of an
outstanding debt. Because Lang raises this issue only in his reply brief, we do not consider
No. 08-4295 Page 4
the issue here. See Simpson v. Office of Chief Judge of Circuit Court of Will County
559 F.3d 706, 719 (7th Cir. 2009).
A FFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3003310/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2009*
Decided July 24, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-3388
SHAUN J. MATZ, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 05-C-1093
MATTHEW FRANK, et al., Rudolph T. Randa,
Defendants-Appellees. Chief Judge.
ORDER
Wisconsin inmate Shaun Matz suffered serious injuries from self-inflicted wounds
several times in 2005 while housed in a segregation cell at Waupun Correctional Institution.
In this civil-rights action against several employees of the corrections department, Matz
alleges that his injuries resulted from suicide attempts prompted by untreated mental
illness. The district court granted summary judgment for the defendants, and Matz
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
No. 08-3388 Page 2
appeals. He argues that the court abused its discretion by denying his requests for
appointed counsel and refusing to consider his evidentiary submissions at summary
judgment. Because we conclude that the district court should have enlisted counsel, we
vacate the judgment and remand for further proceedings.
On the basis of the allegations in the complaint, the district court allowed Matz to
proceed on three claims, one of which was later dismissed for failure to exhaust
administrative remedies and is not at issue on appeal. The remainder of the complaint,
although cast by Matz to include distinct Eighth Amendment claims about the conditions
in segregation and the medical treatment he received at Waupun, really presents a single
contention: Matz alleges that he is seriously mentally ill and that the defendants not only
failed to adequately treat his illness, but in fact exacerbated his condition by housing him in
segregation under conditions inappropriate for the mentally ill. Matz explains that over
the years he has been diagnosed with schizoaffective disorder, major depression, Tourette
syndrome, intermittent explosive disorder, and borderline intellectual functioning. The
defendants, he says, did not provide adequate treatment and, instead, aggravated the
situation by isolating him in a segregation cell for 10 months during 2005 without sufficient
sunlight, outdoor recreation, contact with other inmates, or visits except by video. And,
Matz adds, the cell was lighted continuously, so he was deprived of sleep. As a
consequence, Matz alleges, he attempted suicide several times while housed in segregation
that year. The first time he intentionally overdosed on his psychiatric medications (which
prompted the defendants to cut off the drugs altogether), and then the following month he
used a shard of broken glass to cut himself. He received stitches, which he bit out the next
day. Two weeks later he again cut his wrists with glass and needed stitches. A month after
that Matz cut his throat with a razor and required hospitalization, and just weeks after his
discharge from the hospital he swallowed pieces of plexiglass.
This description of events in 2005 parallels a claim Matz makes in a second lawsuit
against some of the same defendants concerning an extended period of confinement in
segregation at Waupun during 2007. That second suit, which Matz filed in the Western
District of Wisconsin, describes further suicide attempts in 2007. See Matz v. Frank, No. 08-
cv-491 (W.D. Wis. filed Sept. 2, 2008). Upon screening the later complaint, see 28 U.S.C.
§ 1915A, a magistrate judge in the Western District recruited counsel to assist Matz, and
discovery is ongoing. In this action, in contrast, Matz was told after initial screening that
his motion for appointment of counsel was being denied because he had contacted only
two attorneys on his own. The district court instructed Matz to solicit three more
attorneys.
No. 08-3388 Page 3
The defendants meanwhile answered the complaint. Matz then filed a second
motion for counsel. He said that he needed a lawyer because he is mentally ill and, after a
recent transfer to a different facility, no longer was receiving help from the other inmates
who prepared all of his legal submissions. Matz added that he needed counsel because he
had “just recently attempted suicide by cutting both wrists with a razor blade.” The
district court again denied the motion, this time reasoning that Matz’s complaint is
“straightforward and uncomplicated.” That characterization differs sharply from the view
taken by the magistrate judge who enlisted counsel for Matz in his parallel suit: “I agree
with petitioner that it would be very difficult for him to prosecute this case without the
assistance of counsel. His claims involve complex questions of law and fact, which would
be a challenge for even an experienced lawyer to navigate. This challenge would be nearly
insurmountable for someone with significant mental health issues such as petitioner.”
After discovery the defendants moved for summary judgment. They did not offer
evidence suggesting that Matz’s self-inflicted injuries were superficial or otherwise fell
short of genuine attempts on his life. Nor did they submit evidence contradicting Matz’s
allegation that the standard conditions in segregation are not appropriate for the mentally
ill and contributed to his suicide attempts. Instead, the defendants denied that Matz had
been seriously mentally ill. One of the defendants, a prison psychologist, submitted an
affidavit saying that Matz had entered Waupun with Antisocial Personality Disorder and a
history of Tourette syndrome but was not afflicted with schizoaffective disorder, major
depression, or intermittent explosive disorder when he was evaluated in February 2005.
The defendant opined that Matz’s “attempts at self harm” were manipulative efforts to get
himself transferred to another prison. The defendants submitted evidence that Matz had
been seen 31 times in segregation by staff from the Psychological Service Unit (a
psychiatrist, a psychologist, a psychological associate, and a crisis intervention worker),
and that the general medical staff treated his wounds promptly each time he inflicted more
harm to himself. And as for the conditions in the segregation unit, the defendants insisted
that their duty to Matz was satisfied by assuring that basic needs like food, water, and
clothing were met.
While the defendants’ motion for summary judgment was pending, a third request
for counsel was filed on behalf of Matz by another inmate. The motion explains that Matz
had recently been hospitalized for serious injuries and was presently “on an ‘indefinite
clinical status’ as observation which means he cannot have paper or pens to prosecute this
action.” The motion also states that Matz had been placed on a “60 day rotation” requiring
his transfer to a different facility every 60 days. The district court denied this motion
because Matz had not signed it as required by Federal Rule of Civil Procedure 11(a). The
court invited Matz to refile the motion after signing it, but he never did.
No. 08-3388 Page 4
After that Matz responded to the motion for summary judgment with a stack of
evidence. He included his own declaration attesting to the suicide attempts and the
diagnoses of mental illness recounted in his complaint. He also included prison records
documenting some of his injuries and submitted mental-health evaluations made by other
prison doctors both before and after his 2005 confinement Waupun. Those evaluations give
him a mental-health rating of 2, which the Wisconsin prison system uses to denote a
“serious mental illness.” In addition, Matz tried to offer proof of the conditions in
segregation using affidavits supplied by other inmates, some of whom said they also
suffered from mental illness that was exacerbated by confinement in segregation. And,
last, Matz attached the defendants’ responses to his requests for admissions. The
defendants, though denying that Matz was seriously mentally ill, admitted that the
conditions in the segregation unit “can exacerbate depression, suicidal and/or self injurious
behavior for those inmates who are predisposed to decompensate in response to those
conditions.”
But Matz’s response does not conform to Eastern District of Wisconsin Civil Local
Rule 56.2, which requires that he identify by paragraph number the defendants’ proposed
findings of fact he was disputing, and also that he cite to evidentiary material establishing a
dispute. The district court thus deemed admitted the defendants’ proposed findings of fact
and considered Matz’s allegations only “[t]o the extent that the plaintiff’s pleadings comply
with Fed. R. Civ. P. 56(e) and present admissible evidence.” The district court then granted
summary judgment for the defendants. The court reasoned that, even if Matz had been
seriously mentally ill while in segregation, the defendants’ evidence established that they
were not deliberately indifferent because Matz was “closely monitored by [psychological]
staff and received frequent mental health treatments.” The court also concluded that Matz
had not shown that the conditions in his segregation cell were objectively substandard as,
the court said, would be required for an Eighth Amendment violation.
On appeal Matz argues in part that the district court abused its discretion by
disregarding his evidentiary submissions at summary judgment. Matz asserts that, as a
pro se litigant, his proposed findings of fact and evidentiary submissions should have been
accepted and considered.
District courts have discretion to strictly enforce their local rules even against pro se
litigants, and if a district court has applied a local rule governing motions for summary
judgment, we ordinarily would evaluate on appeal only the evidence taken into
consideration by the district court. See Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006);
Cichon v. Exelon Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005). The district court here
No. 08-3388 Page 5
looked to Matz’s “pleadings” for admissible evidence, which could mean that the court
looked at all of his submissions or might mean instead that only the complaint was taken
into account. See FED. R. C IV. P. 7(a) (defining “pleadings” to include only complaints,
answers, and a plaintiff’s court-ordered reply to an answer); Perry v. Sullivan, 207 F.3d 379,
382 (7th Cir. 2000). We cannot say with certainty what the court examined. Matz, though,
verified his complaint, and we may consider it to the extent that Matz’s allegations are
based on personal knowledge. See 28 U.S.C. § 1746; FED. R. C IV. P. 56(e); Ford v. Wilson, 90
F.3d 245, 246-47 (7th Cir. 1996). We review a grant of summary judgement de novo,
construing all facts in Matz’s favor. See Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008).
Summary judgment is appropriate if the undisputed facts show that the defendants are
entitled to judgment as a matter of law. See FED. R. C IV. P. 56(e); Dale v. Potson, 548 F.3d
563, 568-69 (7th Cir. 2008).
A serious mental illness, like any serious medical condition, requires treatment
appropriate to the situation. See Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). If
the defendants were aware of a serious mental illness, they had a duty to provide adequate
care. See Cavalieri v. Shepard, 321 F.3d 616, 621-22 (7th Cir. 2003); Hall v. Ryan, 957 F.2d 402,
405-06 (7th Cir. 1992). The precise contours of the required care, however, depend on the
circumstances of each case. And even a response that initially might have been appropriate
can over time in changing circumstances constitute unreasonable care. See Gil v. Reed, 381
F.3d 649, 664 (7th Cir. 2004) (noting that response to medical need might be “so blatantly
inappropriate as to evidence intentional mistreatment”); Campbell v. Sikes, 169 F.3d 1353,
1367 (11th Cir. 1999) (“Sikes’s liability turns on whether he knew Plaintiff had bipolar
disorder, or knew he was misdiagnosing Plaintiff, or knew his treatment was otherwise
grossly inadequate but proceeded with the treatment anyway.”). Or, on the other hand, the
defendants may have taken all the precautions they could under the circumstances. See
Scarver v. Litscher, 434 F.3d 972, 976-77 (7th Cir. 2006) (“Measures reasonably taken to
protect inmates and staff from [plaintiff] may unavoidably aggravate his psychosis; in such
a situation, the measures would not violate the Constitution.”).
The district court followed the defendants’ lead and minimized the undisputed
seriousness of Matz’s injuries. For example, the court recounted an incident in which Matz
covered the window in the cell door with paper (which he did, he says, because staff had
been ignoring his complaints about the presence of broken glass and feces in his cell).
Prison staff put Matz on a “no paper” restriction and removed him from his cell to
confiscate all of his paper. The district court failed to mention, however, that when Matz
was returned to his cell, he managed to break the light and cut himself again. The court
mentioned the injury only in saying that Matz, in a subsequent session with a psychologist,
had“discussed his feelings of frustration with being in segregation and the fact that he cut
No. 08-3388 Page 6
himself the prior week.” The verified complaint, though, recounts that Matz “used the
glass to lacerate his wrist, which required stitches,” and pointed out that the cell was
equipped with a surveillance camera. Additionally, the court’s opinion does not mention
the incident, also recounted in the verified complaint, when Matz cut his throat with a
razor. Taken in the light most favorable to Matz, the undisputed evidence pointing to the
severity of his self-inflicted injuries would seem to create a material issue about the
legitimacy of the defendants’ assessment that Matz was less than seriously mentally ill.
The defendants did not try to dispute that these were attempts at suicide, which seems a
far cry from their own description of Matz’s behavior as “manipulative efforts” designed to
effect a transfer.
But we need not decide whether the district court erred by granting summary
judgment on the basis of the limited evidence it considered. That is so because Matz also
argues that the district court abused its discretion by refusing to enlist counsel to assist
him, and we agree with this contention. Matz asserts that he suffers from serious mental
illness and also has a learning disability and functions at a borderline intellectual level. The
prison medical records that were offered but excluded would seem to bear out his
contention of mental illness. And this case, Matz contends, is neither factually simple nor
legally straightforward, and he was at the mercy of assistance from other inmates in trying
to prosecute the lawsuit. With a lawyer, he argues, he would have survived summary
judgment.
We review the denial of a motion for counsel for abuse of discretion. Greeno v.
Daley, 414 F.3d 645, 658 (7th Cir. 2005). We look to whether the district court applied the
correct legal standard and reached a reasonable decision. Pruitt v. Mote, 503 F.3d 647, 658
(7th Cir. 2007) (en banc). Once the plaintiff has made a sufficient showing that he had
attempted to procure counsel on his own, the district court must “consider both the
difficulty of the case and the pro se plaintiff’s competence to litigate it himself.” Id. at 649.
But if we find an abuse of discretion, we will reverse only upon a showing of prejudice. Id.
at 654. Prejudice does not require that Matz demonstrate that he would have won his case
with counsel, but instead that “there is a reasonable likelihood that the presence of counsel
would have made a difference in the outcome of the litigation.” Id. at 659.
Here, the district court did not have the benefit of Pruitt until Matz filed his third
motion for counsel, and the court unfortunately applied an incorrect legal standard to the
second motion. Putting aside our skepticism about the district court’s characterization of
this lawsuit as “straightforward and uncomplicated,” the court failed to examine Matz’s
competency to litigate the claims and consequently abused its discretion. See Pruitt, 503
F.3d at 660. And there is reason to doubt Matz’s competency. First, there is the excluded
No. 08-3388 Page 7
evidence from prison doctors that contradicts the representations of these defendants that
Matz did not suffer from a serious mental illness. And Matz submitted evidence to show
that he has frequently been prohibited from possessing paper or pens (although he was
allowed to use a crayon). It is also clear that he has received help with his filings, as
evidenced by his affidavit and by the different handwritings on the filings. And given that
he is reliant on other inmates, being on a “60-day rotation” obviously would have impaired
the continuity of whatever assistance he was receiving. Therefore, our focus is on whether
Matz has shown prejudice.
And we think that he has. Matz tried to introduce extensive, material evidence at
summary judgment but was stymied by his failure to comply with local rules, and as a
consequence the district court essentially accepted the defendants’s proposed facts as true
and disregarded the brunt of Matz’s evidence. Matz’s response to the defendants’ motion
included evidence of serious mental illness both before and after the events at issue in this
case, and that evidence necessarily would have undercut the defendants’ attempt to
minimize the seriousness of his condition. The rejected submission also included evidence
of his suicide attempts, which the district court did not mention in its order—the order’s
references to “attempts to harm himself” is a gross understatement of what Matz’s
evidence shows when viewed in a light favorable to him. The evidence would have
established multiple instances in which Matz did not just “attempt” to harm himself, but
actually did harm himself to the point of requiring hospitalization: overdosing on
medication, cutting his arms, biting out stitches, cutting his wrists, cutting his throat, and
swallowing plexiglass. And of course the rejected evidentiary submission also included the
admission from the defendants that the conditions in the segregation unit “can exacerbate
depression, suicidal and/or self injurious behavior for those inmates who are predisposed
to decompensate in response to those conditions.” If Matz had a minimally competent
lawyer, the district court would have considered this evidence, and this evidence raises a
disputed issue about whether the defendants’ response was adequate in light of Matz’s
continued injuries.
Accordingly, we V ACATE the judgment of the district court and R EMAND for further
proceedings, starting with the recruitment of counsel. For the sake of efficiency, we
suggest that the district court ask counsel appointed in Matz’s other lawsuit if they would
be willing to accept this one as well. Moreover, in our view it would best conserve judicial
resources for the two cases to be handled together, and so we urge the district court to
consider transferring this case to the Western District of Wisconsin, where Matz’s
appointed lawyers have begun discovery in the other case. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3003311/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2009*
Decided July 24, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-1040
Appeal from the United States District
SANDRA SHERRILL, Court for the Northern District of
Plaintiff-Appellant, Illinois, Eastern Division.
v. No. 06 C 4120
JOHN E. POTTER, Postmaster General, William J. Hibbler,
United States Postal Service, Judge.
Defendant-Appellee.
ORDER
The Postal Service fired Sandra Sherrill for “unacceptable conduct as evidenced by
[her] threat to do harm to a co-worker.” After exhausting administrative remedies, Sherrill
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP.
P. 34(a)(2).
No. 09-1040 Page 2
sued the Postal Service alleging sexual harassment, disability discrimination, and
retaliation. The district court granted the Postal Service’s motion for summary judgment,
and we affirm.
Sherrill, who began working for the Postal Service in 1998 as a mail processing clerk,
had several disciplinary incidents before the one that led to her termination in 2003. For
instance, at the end of 1999 supervisor Michael Lee “removed” Sherrill from her job after a
verbal altercation with her co-worker Cassandra Smith (three months later, however, the
removal was reduced to a long-term suspension and Sherrill returned to work). In 2001
and 2003, she received seven-day suspensions for frequent absenteeism. In the fall of 2003
Sherrill had a verbal altercation with co-worker Lavonna Pumphrey. Although the incident
did not result in discipline, her supervisors warned her about her behavior.
The incident that led to her termination took place in December 2003. Sherrill, while
leaving her workplace, started arguing with Smith, and the arguing escalated to the point
where the two women threatened to fight each other. Sherrill then tailed Smith in her car
to a nearby parking lot, where the two continued to curse and threaten each other. Smith
reported the incident to supervisor Charlesten Anderson, and after an investigation the
Postal Service fired Sherrill.
Sherrill sued the Postal Service for wrongful termination, claiming that she was fired
in retaliation for filing, in November 2003, an EEO complaint in response to her
supervisors’ handling of her argument with Pumphrey.1 The judge denied Sherrill’s
request for appointment of counsel, and granted the Postal Service’s motion for summary
judgment. (Sherrill also filed her own summary judgment motion, but delayed six months
in forwarding a copy of her brief to the Postal Service.) The judge found that Sherrill had
not made out a prima facie case for retaliation under the indirect method of proof because
she did not show that she was meeting the Postal Service’s legitimate business
expectations; the judge specifically pointed to Sherrill’s extensive disciplinary record and
her conflicts with Smith. The judge also concluded that, even if Sherrill could make out a
prima facie case, Sherrill could not show that the Postal Service’s stated reason for firing
her—namely, her December 2003 conflict with Smith—was pretextual.
1
Sherrill also claimed that Lee sexually harassed her and that Anderson
discriminated against her on the basis of a disability. The district court granted summary
judgment in favor of the Postal Service on these claims, and Sherrill does not develop any
arguments regarding these claims on appeal; thus we will not address them. See Ienco v.
Angarone, 429 F.3d 680, 685 (7th Cir. 2005).
No. 09-1040 Page 3
Sherrill promptly moved to vacate the judgment on grounds that the district judge
committed a procedural error by treating the Postal Service’s summary judgment motion as
the operative brief in this case. She argued that the evidence she submitted with her own
summary judgment motion should have been considered as well. She also argued that
summary judgment should be vacated because the district judge erred in rejecting her
argument that the filing of her EEO complaint and her termination were sufficiently close
in time to create a causal link. After the judge granted Sherrill’s second request for
appointment of counsel, Sherrill supplemented her Rule 59(e) motion by arguing that the
judge should have accepted her motion for summary judgment, or at the very least
admitted the evidence it included as additional facts. The judge denied Sherrill’s motion to
vacate, noting that even considering the evidence in her summary judgment motion, the
outcome of the case would not change.
On appeal Sherrill, once again proceeding pro se, first argues that the district judge
erred when he initially refused to appoint counsel for her. She maintains that she is
ignorant of the law and court proceedings and that her case was sufficiently complex to
merit appointment of counsel. We review a district court’s decision not to appoint counsel
to a civil plaintiff for abuse of discretion. Jackson v. Kotter, 541 F.3d 688, 699-700 (7th Cir.
2008); Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007). In doing so, we do not engage in an
independent analysis of the plaintiff's claims and competency; rather, we determine
whether the court applied the correct legal standard and whether the court reached a
reasonable conclusion given the information available to it at the time. Pruitt, 503 F.3d at
658-59. The district court is to consider the complexity of the case and the plaintiff’s
competency to litigate it on her own. Jackson, 541 F.3d at 700.
Here, the district court’s conclusion that Sherill’s case “is not so complex that
appointment of counsel is necessary,” although cursory, was a reasonable application of the
proper standard. Sherrill had proven adept at navigating the EEO complaint process,
having filed five complaints with the EEOC in her six years at the Postal Service, and she
had succeeded in stating a claim in her first pro se filing in this case. See Jackson, 541 F.3d
699-700. Her claims for discrimination and retaliation were no more complicated than
those in a typical employment discrimination case.
Next Sherrill argues that the Postal Service was not entitled to summary judgment
because, contrary to the district court’s finding, she had met the Postal Service’s
employment expectations for purposes of establishing a prima facie case of retaliation. See
Simpson v. Office of Chief Judge of Circuit Court of Will County, 559 F.3d 706, 718 (7th Cir.
2009). Sherrill appears to argue, in support of her contention that she was meeting the
Postal Service’s expectations, that every disciplinary action against her was the product of
No. 09-1040 Page 4
unfairness or bias, and that the incidents for which she was disciplined did not occur in the
manner that her supervisors and co-workers reported them. For example, Sherrill argues
that she was justified in following Smith to the parking lot in 2003 because Smith hurled
insults at her. The Postal Service, however, was under no obligation to consider her
reasons for following Smith. Sherrill admits that she was disciplined in 1999 for fighting
with Smith, twice suspended for missing work, and that she followed Smith to the parking
lot with the intention of fighting her—admissions that provide ample evidence that she
was not meeting the Postal Service’s expectations. Sherrill, in her brief, gives her version of
the events leading to these disciplinary actions, but they are unsupported by evidence or
citations to the record, and are largely irrelevant to the ultimate disciplinary actions. Even if
Smith initiated the 2003 encounter by hitting Sherrill with her bag or verbally insulting her,
as Sherrill insists, the Postal Service was well within its rights to evaluate the incident as a
whole and to decide what disciplinary measures were appropriate.
We also agree with the district court that, even if Sherrill could make out a prima
facie case for retaliation, she could not show that the Postal Service’s stated reason for firing
her was pretextual. See McCoy v. Maytag Corp., 495 F.3d 515, 523 (7th Cir. 2007). Sherrill
maintains that the timing of her firing—one month after her EEO complaint—created an
issue of material fact regarding whether she was terminated in retaliation for that
complaint. The proximity in time of an EEO complaint and an adverse employment action
can be evidence of discrimination. See Boumehdi v. Plastag Holdings, LLC., 489 F.3d 781, 793
(7th Cir. 2007). But between the time Sherrill filed an EEO charge in November 2003 and
when she was fired in December 2003, the Postal Service, after an investigation and two
pre-disciplinary hearings, found that she had threatened a fellow employee. There is no
evidence connecting the EEO charge to her firing, and the December incident with Smith
explains the timing of Sherrill’s termination. Sherrill presented nothing to contradict the
Postal Service’s assertion that she was fired because of that incident.
Finally, Sherrill argues that the district court erred in denying her Rule 59(e) motion
without allowing her to supplement the record to respond to the Postal Service’s motion for
summary judgment. The district court, however, did not abuse its discretion in denying
the motion: it properly held Sherrill to the local rules; Sherrill did not point to any manifest
error of law or fact; and in any event Sherrill’s motion would not have changed the
outcome of the case. See Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529
(7th Cir 2000) (Rule 59(e) is not a vehicle for a litigant to undo her own procedural failures);
see also Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009) (affirming denial of 59(e)
motion because, in part, new evidence would not have changed outcome).
A FFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3522619/ | The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3522620/ | This is not the first opinion in this case, and such fact bespeaks a concise, yet a considerate statement of the case. Volume adds nothing to a statement. What is said in briefs, and in statements, can be stated shortly, for the purpose of passing upon the vital questions. There are eighteen cases before us, all growing out of two cases filed before the Public Service Commission. The two cases, out of which all the present cases grow, were two applications to the Public Service Commission, which applications were made by the Union Electric Light Power Company, for temporary increased rates both on electricity and power, and upon heating. These applications were filed about November 28, 1917, and the applications were heard, and investigated, and by the Commission determined in February, 1920. Before the Public Service Commission the case as to heating was number 1395 and that as to electricity was numbered 1396. The Public Service Commission raised rates as to both services, upon proven facts as to the respective costs of operation. These increases were to be for a limited time, and the Commission by requisite orders placed itself in position to determine from future reports of the utility as to how long the rates should be retained. There were a number of consumers (of both heat and electricity) who opposed any change of rates, as are usual in such cases. This case is out of the ordinary, however, because in many instances these particular consumers had been operating their own plants, within their own buildings, from which they got a part, if not all of their heat, and electrical current and power. These plants were leased to the Union Electric Light
Power Company, which leases (as is claimed) fixed the price of service to these special consumers. Other customers, who likewise turned over their plants, have not complained. The details of these will be left to the opinion, if they become material. The applications *Page 340
for these increases in rates brought a storm of protests from eighteen consumers of heat and electrical current and power furnished them by the Union Electric Light Power Company, and they intervened in the two cases. Their charges ran the gamut from the alleged fact the Union Electric Light Power Company was not a public service corporation as to furnishing heat, and clear down the line. One principal contention is that these special consumers have term contracts (as to rates) under these leases, and that such rates cannot be increased during these contract terms. The front door question is that the Union Electric Light Power Company (as to heating) is not a public service corporation at all, and hence an absence of jurisdiction in the Public Service Commission to deal with that question. Beaten before the Public Service Commission these intervening consumers sued out statutory certiorari to the Circuit Court of Cole County, where upon a hearing the orders of the Public Service Commission were set aside.
From that judgment the Public Service Commission and the Union Electric Light Power Company have appealed. The individual complaints of the several eighteen consumers have been separately preserved, so that if one (in matters of its individual rights) has advantage over the other, they are preserved in the eighteen cases here. The broad questions are common to all cases.
I. What we have denominated the "front door" question in this case relates to the heating activities of the Union Electric Light Power Company. The Public Service Commission (much better equipped than is this or any other court) to find and determine facts, has this to say upon this branch of the case:
"The appellant company has established a large downtown heating plant in the vicinity of Tenth and St. Charles streets, and has installed steam pipes connecting it with a number of large adjacent buildings, and has contracted to furnish steam heat to those building *Page 341
from this plant when needed and to furnish electricity from its large central station. In addition the company has made contracts for steam heating with a number of consumers so situated that they could not be reached from the St. Charles heating plant. In accordance with these contracts the company has taken over the private plants of a number of consumers, agreeing to furnish the consumer steam for heating or other purposes, and with electricity for light and power. Usually the right is reserved in these contracts whereby the applicant may shut down the private plant entirely and supply both heat and electricity from some outside source. The company has managed the detail of supplying such service in each case in whatever manner appeared to it to be the most economical. In the summer when there was little or no heating demanded the company has followed the policy of shutting down most, if not all, of these isolated plants, and furnishing electricity from its own more efficient central plant. During the heating season it has operated some of the consumers' heating plants, furnishing heat to such consumers and sometimes connecting to adjacent consumers, and supplying them with heat from the same plant or plants. During this period of heating demand the company has apparently considered it economical to operate the consumers' electrical generating equipment, using the exhaust steam therefrom for heating. Usually the contract provided for steam heat for a definite space and for certain stipulated amounts of electricity, all for some fixed annual payment, with additional charges for electricity for any excess used above the amount called for in the contract. These contracts have carried with them temporary possession and use of the machinery, with provisions as to extensions or repairs and conditions pertaining to their return to the consumer when the contract has expired. A number of such proposals have been accepted, and the company has taken over some forty-odd such plants, some of which are entirely closed down, but a number of which are operated during the heating season, as above described." *Page 342
The foregoing findings of facts is of material moment here. They cover much more than the eighteen cases involved. This finding of the facts is well buttressed by the proof. Included in that proof are the contracts pleaded by interveners.Contract These contracts are of no vitality, in so far as theyRates. affect rates. The Public Service Commission, in fixing rates, cannot be clogged or obstructed by contract rates. This question was early threshed out by this court in several cases, some of which went to the Federal Supreme Court, in each of which this court was sustained. The original case, the ruling in which has never been changed, is State ex rel. City of Sedalia v. Public Service Commission, 275 Mo. 201. The effect of this and subsequent holdings, is that contract prices count for naught in the fixing of rates by the Public Service Commission. The Public Service Commission is not a court, and cannot be influenced in any regard by the contract prices as to rates. As said such body is not a court, and has neither the power to construe contracts, nor to enforce them. If the contracts have any effect at all (as we think they have not) the only effect would be upon the question of whether or not the Union Electric Light Power Company was a public utility, in so far as heating is concerned. We doubt their efficacy in that regard. This because such question depends largely upon charter powers, and what has been done under the charter powers. But of this question later. Certain it is that such contracts cannot influence service rates. All of these contracts (and there were many not involved in these eighteen suits) indicated a general purpose upon the part of the Union Electric to extend the steam heating branch of their business.
II. If these contracts have any bearing whatever in these cases, it must be on the theory that they tend to prove that the appellant was not in fact a public utility in this regard. Fortunately for the brevity of this opinion, *Page 343
we have had before us the question of steam heating.Private [State ex rel. Case v. Public Service Commission, 298Utility. Mo. 303.] It does not show clearly in that opinion, but it was a fact in the case that the public utility had several different plants from which steam heat was furnished and generated. It appeared there, as it appears here, that there is too much waste in conducting steam heat for any great distance. In fact the only economical way of engaging in such a public utility is to have different plants, located in districts wherein there would be demand for the commodity, and that seems to be the plan of the claimant in these cases. Another question settled in the case, supra, is that where there is a combined plant for the production of both electricity and steam heat, there should be a proper allocation of the value of the plant as to the separate uses. In the cases before us we have instances where more electricity is produced than is required for the local plant, but such is saved for the company's reserve for general use. In other cases there is not a sufficient quantity, and the deficiency is made up from the general reserve in the main plant, or some of the minor plants. So too, if there was surplus steam in a given building, it would be piped out to fill another contract. So when the very nature of the business is considered, a multiplicity of smaller plants is required to save waste, and in order to economize in the business. The divers contracts suffice to show nothing in these cases. As a public utility the corporation cannot engage in private contracts, and the contracts before us do not show that the corporation intended to so engage. Steam heating comes under the Public Service Commission Act under our rulings, and the only real question in this case is the propriety of the temporary rates fixed. The rates fixed were for a test of a year, and then a time in addition given to get in reports, and from them determine the fair rates.
III. It is not disputed that the Union Electric Light Power Company had the charter power to manufacture *Page 344
and furnish heat and power to the general public. Not only heat by electricity, but heat by steam. Its charter seems to have been so drawn as to enable it to make use of all elements.Allocation It chose to engage (under its charter) in furnishingof Rates. steam heat and power as well as electric lights, electric heat and electric power. It was so engaged when the applications for increased rates were made, which applications were based upon increased labor and fuel costs. There were separate applications, and for this there is ample authority. [Hackworth v. Missouri Southern Railroad Co.,286 Mo. 282.] In the last named case it was made to appear that the railroad was hauling railroad ties at an actual loss, although its whole business might not show the company to be in the red. We ruled, and rightfully so, that other customers of the railroad should not be compelled (by increased rates on their shipments) to make up the deficits from hauling ties. What is true in a case like that, is also true in a case like this. The Case case, supra, is practically on all-fours with the Hackworth case. In that we required a proper allocation of the instrumentalities used in the production of steam, so that it might be made to not only bear its proportionate part of the expenses, but likewise its proportionate part of the profits, to insure a reasonable return upon the whole investment for public use. The enactment of the Public Service Act marked a new era in the history of public utilities. Its purpose is to require the general public not only to pay rates which will keep public utility plants in proper repair for effective public service, but further to insure to the investors a reasonable return upon funds invested. The police power of the State demands as much. We can never have efficient service unless there is a reasonable guaranty of fair returns for capital invested. The woof and warp of our Public Service Commission Act bespeaks these terms. The law would be a dead letter without them, and a commission under the law, that would not read the law in the proper spirit, would be breathing into *Page 345
it the flames of ultimate deterioration of public utilities. These instrumentalities are a part of the very life blood of the State, and of its people, and a fair administration of the act is mandatory. When we say fair, we mean fair to the public, and fair to the investors. This answers some suggestions in the briefs.
IV. Learned counsel for respondents have in view the force and effect of a contract under the views expressed in the Old Dartmouth College case. They overlooked the changes in the law made by constitutional provisions since that date. WeImpairment have always been a strict constructionist, but inof Private State ex rel. City of Sedalia v. Public ServiceContracts. Commission, 275 Mo. 210, we had occasion to review the law as it is now. Under our Constitution the police power of the State is held inviolable. [Sec. 5, Art. XII, Mo. Const.] In State ex rel. v. Public Service Commission, 275 Mo. l.c. 209, we said.
"Note the language, `the exercise of the police power of the State shall never be abridged.' Under such a constitutional restriction the Legislature would be powerless to enact a valid law by the terms of which the right of the State in the exercise of its sovereign police power in the fixing of reasonable rates for public services could be limited or abridged. This court so held in Tranbarger v. Railroad, 250 Mo. l.c. 55, whereat BOND, J., said:
"`(2) All powers of government which regulate the public health, welfare and the property rights of its people — these, no State can strip herself of, for that would render it incapable of carrying out the prime purpose of its creation. The sanctity and import of this attribute of sovereignty are recognized in the Constitution of this State, to-wit: "The exercise of the police power of the State shall never be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well-being of the State." [Art. *Page 346
12, Sec. 5, Constitution of Missouri.] The only restrictions upon the exercise of this faculty are that its use shall be reasonably adapted to the ends for which it is given, and that it shall not infringe any right or privilege guaranteed by the Federal Constitution. The authorities and cases demonstrating these principles are uniform.'
"Some of us thought the pronouncement a little broad and dissented, but the case was taken to the United States Supreme Court and there affirmed. [Chicago Alton Railroad Co. v. Tranbarger, 238 U.S. 67.]
"The United States Supreme Court was even more explicit in this Tranbarger case than was the majority opinion in this court. To its rule we must bow. At page 76 of this Tranbarger case,238 U.S. 67, it is said:
"`It is established by repeated decisions of this court that neither of these provisions of the Federal Constitution has the effect of overriding the power of the State to establish all regulations reasonably necessary to secure the health, safety, or general welfare of the community; that this power can neither be abdicated or bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise. [Atlantic Coast Line v. Goldsboro,232 U.S. 548, 558, and cases cited.] And it is also settled that the police power embraces regulations designed to promote the public convenience or the general welfare and prosperity as well as those in the interest of the public health, morals or safety. [Lake Shore Mich. Southern Ry. Co. v. Ohio, 173 U.S. 285, 292; C.B. Q. Ry. Co. v. Drainage Commissioners, 200 U.S. 561, 592; Bacon v. Walker, 204 U.S. 311, 317.]'"
The fixing of a rate for a public commodity, as we have here, falls under the police power of the State. From the beginning we have so ruled. This constitutional provision disrobes the contention of interveners as to private contract rights. They are not private contract rights, and when so viewed, there is no substance to these sundry contracts. The reasonableness of the rates fixed will call for another paragraph. *Page 347
V. Details will serve no useful purpose. The Public Service Commission first determined that the Union Electric Power Light Company was a public utility, both for electricReasonableness power and current, and for steam heat. Havingof Rates. determined that it was a public utility for all purposes, supra, the only matter left was to fix reasonable rates. These it determined to do by a series of investigations, all mentioned within the record. After a full investigation as to the increased cost of its products, the Commission entered a trial order or judgment. By the terms of this the matters were to be tested for a year, and the data kept and gathered for its information. The rates were not permanent, but rates based upon the best information then before the Commission. If, at the end of the year, the experiment showed a wrong conclusion, it could be set aside, and new rates fixed. We are dealing solely with these experimental rates. Not only so, but with experimental rates as to steam heat. This court will be slow to interfere with the Public Service Commission, when they order an experiment to be made in order that equitable rates may be determined. Our province is to determine whether or not the order made is unreasonable. Of course the right to make the order is of first consequence, but this right clearly appears. It does not appear that the order was unreasonable. Without such a showing, neither this court, nor the circuit court should vacate the order. From all it appears, that the circuit court was in error in its judgment, and the same is for that reason reversed. Such court overlooked the right of the Commission to await the result of an experimental judgment. Take from the Commission the right to experiment upon what should be a final judgment, is to rob it of its most valuable asset. We do not feel like so ruling, and have never before so ruled.
The judgment of the circuit court is reversed. White, Woodson
and Atwood, JJ., concur; Blair and Ragland, JJ., not sitting; Walker, J., dissents in separate opinion. *Page 348 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3522624/ | This is an action for personal injuries sustained by plaintiff (respondent) when a truck in which he was riding, owned by defendant (appellant) collided with another truck upon State Highway No. 25, between Bloomfield and Advance, in Stoddard County, Missouri. The trial resulted in a verdict and judgment for plaintiff in the sum of $5000, from which judgment, defendant has appealed.
It appears from the evidence that defendant, at the time of the accident, was engaged in the trucking business at Bloomfield, under the name of the Alexander Truck Line; that on the 14th day of September, 1933, plaintiff engaged defendant to transport a load of cattle by truck from Stoddard County to St. Louis, and upon his request was granted permission to go along; that the car was driven for defendant by Byron Alexander, a brother of defendant, who was known to plaintiff as a good driver with twenty-five years of experience; that the cattle were transported to St. Louis in said truck on September 14th, aforesaid, and Alexander, accompanied by plaintiff, started on the return trip September 15th, leaving St. Louis, about 10:30 A.M.; that between Advance and Bloomfield, in Stoddard County, driving south, plaintiff informed Byron Alexander, driver of the truck, that he was sleepy, whereupon the driver said: "Why don't you go ahead and take a nap;" that plaintiff thereafter "dozed off" at a point about three-quarters of a mile north of where the wreck occurred; that he was asleep when the trucks collided and knew nothing about the wreck until he regained consciousness in the hospital about three days later; that at the time plaintiff went to sleep Alexander was driving as well as he ever did.
The manner in which the wreck occurred is described by Sam Hildebrand, driver of the other truck involved in the accident, as follows:
"I was going north on twenty foot gravel and was next to the gravel ridge on the east side when I first noticed the Alexander truck, *Page 1179
which was either coming down or was at the bottom of the other hill on the east side, when I reached the top of the hill. There were ditches on both sides of the road and the above-referred-to gravel ridge, which the grader probably left there, was about three feet from the edge of the ditch. There was a valley between the two hills, which were about three-fourths of a mile apart, and a level space of about 200 feet at the bottom of the two hills. I do not know which of the slopes is the longer. When I first saw the Alexander truck it was about 1,800 to 2,000 feet from me and was going from one side of the road to the other, zigzagging back and forth across the road three or four times. He cut back to my side when about 150 feet from me and kept coming on my side. I was able to see what he was doing when he got up to within about ninety feet of where I was on the right side of the road. The driver was then coming toward me with his head down over the wheel (indicating). I honked two or three times and as I saw he wasn't going to get over, I cut over to the west to go around him. As I cut over he did the same thing and we hit about in the center of the road, the two cars riding each other to the west side of the road, with the front wheels of each in the ditch and the rear ends out in the middle of the road apart and parallel with each other. The radiator of my car was just welded back into the block."
Reference will be made to other evidence in discussing the various assignments of error.
Defendant offered no evidence but stood on his demurrer at the close of plaintiff's case and now asserts that the demurrer should have been sustained because plaintiff was guilty of contributory negligence, as a matter of law, in that he was asleep at the time of the collision. We have been cited to one case that so holds. [Oppenheim v. Barkin, 262 Mass. 281,159 N.E. 628, 61 A.L.R. 1228.] In that case the guest in the rear seat, after an all night ride in the automobile, fell asleep. Just how long he had been asleep the record fails to show. He was asleep, however, when the accident in which he was injured occurred. The Supreme Court of Massachusetts held that a guest injured while asleep, is in the exercise of no care for his own safety and therefore, regardless of the negligence of the driver, he is guilty of contributory negligence as a matter of law and cannot recover. The opinion seems to hold that under any and all circumstances a guest who falls asleep while riding in a car is guilty of such negligence as would preclude a recovery for any injury received while in that condition. We think the weight of authority and reason fails to support so strict a rule. In connection with the Oppenheim case, it is to be observed that the rule in Massachusetts is that an invited guest in an automobile may recover from the driver for injury sustained while *Page 1180
riding therein only where such driver is guilty of gross negligence. [Burke v. Cook, 246 Mass. 518, 141 N.E. 585.] On the other hand, under the Missouri statutes, it is held that the host owes his guest riding in an automobile, the duty to use the highest degree of care so as not to endanger the life or limb of such guest. [Kaley v. Huntley, 63 S.W.2d 21, 333 Mo. 771.] It is therefore apparent that the rule in Missouri, is much more strict as to the duty of the driver and, in harmony therewith, is less strict as to the duty of the guest. The rule in Missouri is that a guest may not entrust himself absolutely to the driver of a vehicle but must exercise ordinary care for his own safety. [State ex rel. v. Haid et al., 25 S.W.2d 92, l.c. 94,324 Mo. 759; Rappaport v. Roberts, 203 S.W. 676; Heyde v. Patten, 39 S.W.2d 813.] If the guest be guilty of negligence directly contributing to his injury he cannot recover. The question of contributory negligence is ordinarily for the jury and the plaintiff should only be declared guilty of such negligence as a matter of law, when there is no ground for difference of opinion in the minds of reasonable men. We do not think the fact that a guest falls asleep may be said as a matter of law to be negligence on his part under any and all circumstances. If such guest were riding in an automobile with one whom he might have reason to believe was an inexperienced driver, a drunken or a reckless one, then to fall asleep even for a short space of time might be negligence as a matter of law. The same might be true in heavy traffic, in fog or darkness under varying circumstances and there may be many other occasions where a like result would reasonably follow. But in the case at bar the accident happened in broad daylight; the driver of the car was known to plaintiff as an experienced, competent driver of twenty-five years experience; there was no drinking or speeding on the trip; plaintiff had had an opportunity to observe the operation of the car both on the trip to St. Louis and the return trip to within a short distance of his home town and there was nothing to indicate the driver would become careless or that he would fall asleep or drive into some other vehicle; plaintiff became sleepy and so advised the driver who suggested that he take a nap, which he did; that was at a point about three-quarters of a mile from where the accident occurred and plaintiff evidently was not asleep for more than two or three minutes. Under such circumstances we think the question of plaintiff's contributory negligence was for the jury. [Bushnell v. Bushnell (Conn.),131 A. 432; Fry v. Smith et al. (Iowa), 253 N.W. 147; McDermott v. Sibbert, 119 So. 681; Chesapeake Potomac Tel. Co. v. Merriken,147 Md. 572, 128 A. 277, 41 A.L.R. 763; George v. George (Ark.), 88 S.W.2d 71, 42 C.J. 1171, sec. 949; 2 Blashfield's Cyc. 1089.]
Error is assigned in the giving of plaintiff's Instruction No. 4-P. This instruction was to the effect that even though the jury might *Page 1181
find that the driver of the Hildebrand truck, with which defendant's truck collided, was negligent, yet if they found that the driver of defendant's truck was also negligent and that said negligence contributed directly to the injury of plaintiff, if any, then the verdict should be for plaintiff notwithstanding the negligence of the driver of the Hildebrand truck. It is urged that this instruction was erroneous for the reason that it directed a verdict for plaintiff, if certain facts were found, without any reference to the defense of contributory negligence on his part. In this connection we find that defendant's given Instruction B informed the jury that if the collision was caused solely by the negligence of Hildebrand, plaintiff could not recover. Also, defendant's given Instruction C directed the jury that even though defendant's driver was negligent, yet if they further found that plaintiff was guilty of negligence directly contributing to cause the injury, the verdict should be for defendant. Likewise plaintiff's main Instruction A required the jury to find that plaintiff was in the exercise of ordinary care for his own safety at the time of the accident. It is well settled that the instructions shall be read as a whole and that where a proper instruction is given on contributory negligence, when that defense is pleaded, it is not a fatal error if plaintiff's instructions fail to cover the same subject. [Daniel v. Pryor, 227 S.W. 102, l.c. 106; Colburn v. Krenning, 220 S.W. l.c. 940.] We think defendant was fully protected in this respect and that the vice, if any, in the instruction was cured by the other instructions referred to.
Defendant offered Instruction F which was by the court refused, and this is assigned as error. The instruction, after informing the jury that plaintiff was required to exercise ordinary care for his own safety, further stated that if plaintiff failed tokeep a careful lookout for approaching vehicles, or failed to observe the manner in which the driver of the truck was operating same, and find that "at the time and place of the collision plaintiff was asleep," and that his failure to keep awake and observe approaching vehicles constituted negligence on his part directly contributing to the injury, then the verdict should be for defendant. Insofar as contributory negligence is concerned it was covered by other instructions. This does not mean defendant should be denied the right of having that defense affirmatively submitted, but in doing so, defendant was required to offer a correct instruction. The instruction offered singled out one particular fact as evidence of contributory negligence. But more than that, it placed a greater degree of care on plaintiff than the law requires, in that it placed upon him the duty to keep a careful lookout at all times. This is the care required of the driver but the guest is required to exercise only ordinary care, as heretofore stated. Whether or not a failure to keep a careful lookout on the part of a guest is negligence *Page 1182
would depend upon the circumstances existing at the time, but as a general rule his duty is limited to the exercise of ordinary care. It stood admitted in this case that plaintiff was asleep when the accident occurred. That being true, he could not have then been keeping a careful lookout as required by the instruction. It would logically follow then that the giving of such instruction would in effect, be more favorable to defendant than he was entitled, if not, a direction to find for defendant. It is our opinion there was no error in the refusal of this instruction. [Smith v. R.R. Co., 9 S.W.2d 939, l.c. 946,321 Mo. 105.]
Defendant's next contention is that the court committed reversible error in permitting plaintiff's witness, Hildebrand, to testify, over defendant's objection, that a few seconds after the wreck happened he said to defendant's driver, "Man what in the world was the matter with you?" and the driver replied, "I was asleep." This evidence was first offered on the theory that the driver, being defendant's agent, the statement was competent. It was further offered on the ground that it was a part of theres gestae and is now defended on that ground and it is with that point we are now concerned. An examination of the evidence shows that after the collision both cars came to a standstill with the front ends of each in the ditch and the rear ends extending back onto the road. Hildebrand got out of his car and went to the car in which defendant's driver was still sitting, holding plaintiff's head, and the above conversation ensued. Apparently it occurred about as soon after the accident as it would take one man to get out of the truck and approach the other truck. In other words, it was clearly a very short period of time. Certainly not enough time had elapsed to rule out the conversation solely on that ground. The element of time is not controlling, though of importance. [22 C.J. 551.] No hard and fast rule may be laid down but each case must depend upon its own circumstances as to when a conversation or declaration may be admitted in evidence as a part of the res gestae. In this case the answer of the driver of defendant's truck that he was asleep, thus accounting for and explaining the collision, was so connected with the main event, so nearly contemporaneous and so apparently spontaneous that it cannot be regarded as a narration of a past event but should fairly be considered as a verbal act and therefore admissible. [Shaefer v. The Missouri Pacific,98 Mo. App. 445; Lynch v. R.R., 61 S.W.2d 918.] Moreover, if the jury believed other statements made by Hildebrand in his uncontradicted evidence, there could be no question as to the negligence of the driver of defendant's truck and whether or not he was in fact asleep would make little difference in the result.
Defendant further assigns error in the giving of Instruction 1-P for plaintiff. This instruction, after requiring the jury to find certain *Page 1183
facts as to which there is no controversy, further informed the jury that if they found that plaintiff was in the exercise of due care for his own safety and that Byron Alexander, while driving defendant's truck in a southerly direction, drove the same on the left-hand side of the highway as said truck approached the Hildebrand truck and if they found that he continued to drive said truck upon the east side of the highway until the two trucks were in dangerous proximity to each other and further found that thereupon the driver of the Hildebrand truck turned to the west in order to avoid a collision and that about that time the driver of defendant's truck turned to the right or west side of the highway and that a collision occurred between the trucks and if the jury further found that such manner of driving defendant's truck was negligent and that such negligence, if any, caused the collision, the verdict should be for plaintiff. It is urged that this instruction is erroneous because it singles out and gives undue prominence to certain facts. The instruction recites the only facts as to which there was any testimony. Defendant offered no testimony. There was but one eyewitness who did testify and either the jury had to believe his story or find for defendant. There were no other facts upon which a verdict could be predicated. This is not a case where the testimony of one particular witness is singled out and the jury required to find for plaintiff if they find such testimony to be true in total disregard of other evidence. The evidence adduced tended to prove the facts set forth as a requirement in the instruction, which presented plaintiff's theory of the case and the instruction was not erroneous. [Berthold v. Danz, 27 S.W.2d 448; Sisk v. Chicago B. Q.R. Co., 67 S.W.2d 830, l.c. 839.] A quite similar instruction was approved in Cool v. Peterson,189 Mo. App. 717, 175 S.W. 244. We find no error in this respect.
It is urged that the verdict for $5000 was grossly, excessive. As to his injuries plaintiff testified in part as follows: "The next thing I remember, after going to sleep Friday afternoon, was the following Monday evening when I awoke and found myself in the Lucy Lee Hospital in Poplar Bluff. I had a place cut on the left side of my head (indicating). I was unconscious for seventy-two hours. My left arm was broke between the wrist and elbow and at this time I do not have much strength in it. However, before the accident it was all right. My left leg was paralyzed and I could not move it except to pick it up and raise it around. I could not put any weight on it for four or five weeks and I had to use a stick to get around for about three months. Before the accident it was all right. I could not see any bruise on my right hip. I was mashed in the lower part of my chest and had two broken ribs and spit up blood every day for about three or four weeks. I was bruised and mashed and suffered all over and at this time my left arm, right leg and back (indicating) still *Page 1184
hurt me. My back about the kidneys hurts me and I passed quite a little blood through my kidneys. My bowels were a little constipated and sore for about three or four weeks, but I got over it. I had to have my glasses doctored and for a week I could not see anything and my eyes are weaker now than they were before. Before the accident I could do general farm work, never lost a day's pay for twenty-two years and two months. I could sleep well at night and was never nervous, but since the accident I just piddle around. I am very nervous, do not sleep well and never feel good."
Dr. J.W. McPheeters testified as to plaintiff's injuries as follows: "I first met Mr. Scism on September 15, 1933; when he was brought to the hospital unconscious and was bleeding from the ears, nose and lacerations of the scalp and general bruises all over. He had a deep and angry laceration beginning over the left temple and extending upward and back down over the car. There was a gap about two inches wide where the scalp was laid open. We put him to sleep and sewed this up. He had a fractured left arm and other abrasions and bruises, which were only dressed and not sutured. He had injuries to his stomach, intestines and kidneys, from which he passed blood for several days, which were caused by a bruise. He also spit blood for several days. He also had pneumonia, which was caused by a bruise about the chest. Mr. Scism was not perfectly rational for several days, having had a severe shock to his nervous system. His right hip had been dislocated, but it was back in place. There was a more or less permanent separation at the juncture of what is called the sacroiliac juncture. I talked to him this morning and he cannot extend his foot now and he has no feeling in his right leg. In my opinion it is caused by paralysis of the nerve that comes around inside your hip and inside your knee and back in your leg inside the ankle. He has made as much improvement now as he ever willmake, the injury to his leg being permanent. A concussion of the brain caused the unconscious condition. After I saw him he was unconscious and irrational for forty-eight hours and semi-conscious for seventy-two hours. He was in quite a bit of pain after he came to and the girls would have to watch him. I did not think he was right and did not want him to leave when he did, but he went home anyway.
"I do not think the headache was caused by the head injury, but possibly from blood clotting, which had not absorbed possibly.The condition of his arm and leg will not improve. It has been too long now."
This court will not ordinarily interfere with the verdict of a jury on the amount of the damages particularly when the trial judge, who is in a much better position to determine that matter, has passed upon the question, unless the amount is grossly excessive. [Foulks v. Lehman, *Page 1185
17 S.W.2d 994, l.c. 998.] Considering the severity, permanence and painfulness of the injuries suffered, we think, even under the cases cited by defendant, the verdict was not so excessive as to justify this court in interfering therewith. [Meyer v. Wells, 293 S.W. 455; Bartlett v. Pontiac Realty Co., 224 Mo. App. 1234,31 S.W.2d 279.]
We find no material error in the case and therefore order the judgment affirmed. Allen, P.J., and Smith, J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3522627/ | This is a suit on an Illinois judgment for $2555.18. The trial court found for plaintiff and defendant appealed to the St. Louis Court of Appeals. The Court of Appeals transferred to the Supreme Court on the theory that the construction of the due process clause of the Fourteenth Amendment of the Federal Constitution is inherently involved. [See Fisk v. Wellsville Fire Brick Company (Mo. App.), 145 S.W.2d 451.]
Defendant is a Missouri corporation and operates a fire brick plant just outside Wellsville, Montgomery County, Missouri. In October, 1936, defendant sold an order of fire brick to the Gardner-Denver Company, Quincy, Illinois, to be used in the construction of core ovens. In order to make the sale, defendant agreed to and did construct the ovens at Quincy, and sent its foreman, Harry Miller, to Quincy, to do the work. Miller was given authority to employ the necessary labor and did so. He commenced work on October 8th and finished December 14, 1936, and immediately returned to Wellsville, *Page 77
Missouri. This work was the only business that defendant did in Illinois, and in doing the work defendant did not ask for and was not granted any permit to do business in Illinois, and named no agent upon whom process against it could be served in Illinois.
Among defendant's employees at Quincy was plaintiff who, in the course of the work, was injured by a falling scaffold, and filed compensation claim, under the Illinois Workmen's Compensation Act, against defendant and its insurer, the American Mutual Liability Insurance Company, and the Gardner-Denver Company. Proceedings on the claim resulted in an award for $2055.18, in favor of plaintiff and against defendant only. Defendant's insurer was let out because its policy covered accidents in Missouri only. Judgment on the award was obtained in the Circuit Court of Adams County, Illinois, and in addition to obtaining[115] judgment on the award, plaintiff obtained judgment for $500 attorney's fee, making the total judgment $2555.18. This judgment is the basis of the present cause.
[1] The defense is that neither the Illinois industrial commission nor the Illinois circuit court had jurisdiction over the person of defendant, and therefore, had no power to make the award or to enter the in personam judgment. Defendant contends that it was not, legally speaking, doing business in Illinois while constructing the ovens, and was, therefore, not an employer under the Illinois Workmen's Compensation Act; that it did not appear or enter its appearance in any of the Illinois proceedings; and that it was not legally served with process. On the other hand, plaintiff contends that defendant, by constructing the ovens in Quincy, became an employer under the Illinois Workmen's Compensation Act; that defendant entered its appearance at the hearing on the compensation claim; and that it was legally served with process. If defendant did not enter its appearance, as claimed by plaintiff, and was not legally served with process, then to enforce a judgment based upon such proceedings would deprive defendant of due process under the Fourteenth Amendment. [State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge et al., 331 Mo. 1015, 56 S.W.2d 28, l.c. 37, 85 A.L.R. 1378.] In the situation, we think that the Court of Appeals properly transferred. [Constitution, Sec. 12, Art. 6, and Sec. 5, Amendment, 1884.]
As indicated, three questions are presented: (1) Was defendantdoing business in Illinois at the time of plaintiff's injury, which question here means, Was defendant, while constructing the ovens, an employer under the Illinois Workmen's Compensation Act? (2) Did defendant enter its appearance at the hearing on plaintiff's compensation claim? (3) Was defendant so served with process as to give jurisdiction over its person? We shall dispose of these questions in the order stated. *Page 78
[2] Was defendant, while constructing the ovens, an employer under the Illinois Workmen's Compensation Law? Among the definitions of employer in Sec. 141, Chap. 48, Rev. Stat. Ill., 1937, is this: "The term `employer' as used in this act shall be construed to be . . . Every . . . private corporation . . . who has any person in service . . . and who is engaged in any of the enterprises or businesses enumerated in section three (3) of this act." Section 3 of the act is Sec. 139 of the 1937 Rev. Stat., which section provides, among other things, that the provisions of the act "shall apply automatically and without election to . . . remodeling (or) altering . . . any structure (and to) . . . construction . . . work." Defendant's assistant secretary, Kohl, called as a witness for plaintiff, testified that the work defendant did at Quincy "was the construction of core ovens;" that "in connection" with the sale of the brick defendant "did actually construct the core ovens." We think that defendant, while engaged in constructing the core ovens in Quincy, was anemployer within the meaning of that term as used in the Illinois Workmen's Compensation Act.
[3] Did defendant enter its appearance at the hearing on plaintiff's compensation claim? Shortly before filing the claim for compensation, plaintiff's attorney, Mr. Nichols, took up the matter of the claim with Mr. Goeblins, an officer of the Gardner-Denver Company at Quincy. Goeblins contacted defendant at Wellsville, Missouri, and defendant's manager, Mr. McMullen, and its attorney, Mr. Nowlin, went to Quincy for a conference with Goeblins and Nichols to ascertain if a compromise settlement could be reached, but no agreement was reached.
A hearing was had on the claim before an arbitrator at Quincy. The Gardner-Denver Company appeared by its insurer. Defendant's insurer appeared on its own behalf, but not for defendant, although defendant had theretofore directed its insurer to represent it at the hearing. Mr. Nowlin, defendant's attorney, was, for a short time, in the court room in Quincy, where the hearing was had, but did not enter the appearance of defendant and took no part in the hearing. There is no claim that defendant made any appearance before the Illinois commission when the lump sum award was made or that defendant made any appearance in the Illinois circuit court when judgment was entered on the award and for attorney's fee. Plaintiff, in the brief, says that when defendant's insurer, at defendant's request, "appeared before the arbitrator its appearance was the appearance" of defendant. Such would be so, if the insurer had appeared for defendant, but as stated, the insurer did not appear for defendant, but for itself only. We rule that defendant did not enter its appearance.
[4] Was defendant so served with process as to give jurisdiction over its person? [116] The Illinois Workmen's Compensation Act provides *Page 79
(Sec. 156 (i), Chap. 48, Rev. Stat. 1937): "Each party, upon taking any proceedings or steps whatsoever before any arbitrator, committee of arbitration, industrial commission or court, shall file with the industrial commission his address, or the name and address of any agent upon whom all notices to be given to such party shall be served, either personally or by registered mail, addressed to such party or agent at the last address so filed with the industrial commission: Provided, that in the event such party has not filed his address, or the name and address of an agent, as above provided, service of any notice may be had by filing such notice with the industrial commission."
For service in the compensation claim plaintiff proceeded under Sec. 156 (i) on the theory that this section authorized service on a foreign corporation, although such corporation had not filed with the commission its address or the name and address of a service agent. All notices served on the commission were forwarded by registered mail to defendant at Wellsville, Missouri, and defendant turned these over to its attorney, Mr. Nowlin, who sent the notices to defendant's insurer with direction, as stated, to represent it in the matter of the claim for compensation.
Elk River Coal Lumber Co. v. Funk et al., 222 Iowa 1222,271 N.W. 204, 110 A.L.R. 1415, was a workmen's compensation case. The Elk River Coal Lumber Company was the employer, Harry K. Briggs, killed in an accident in Iowa, while on duty, was the employee, and Cora M. Briggs, the widow, was the claimant. The employer was a West Virginia corporation, home office at Charleston, West Virginia, and a branch office at Columbus, Ohio. The employer had no office in Iowa; was not authorized to do business in Iowa, but Briggs, representing the employer, commenced taking orders in Iowa for coal in 1928, and so continued until December 8, 1931, when the accident occurred. Briggs' territory was the whole State of Iowa; he had some 500 customers or coal dealers throughout the state to whom he sold coal, collected bills, and adjusted difficulties. During all the time employed, he was a resident citizen and voter of Des Moines, Iowa.
September 15, 1933, the widow filed, with the Iowa industrial commissioner, claim for compensation. The Iowa statute, Sec. 1459, Code of 1935, provided: "Any notice to be given by the commissioner or court provided for in this chapter shall be in writing, but service thereof shall be sufficient if registered and deposited in the mail, addressed to the last known address of the parties . . ." Service, under Sec. 1459, was attempted by sending, by registered mail, notice of hearing to the employer at Charleston, West Virginia, and to Columbus, Ohio. Service of notice was also made upon the Iowa Secretary of State under the provisions of an Iowa statute (Sec. 8421, Code of 1935) relating to service in civil suits on foreign corporations, *Page 80
and the Secretary of State forwarded the notice served on him to the employer in West Virginia. The employer challenged the sufficiency of the service, but was overruled by the commissioner. The question reached the Supreme Court of Iowa and it was held that the service was not sufficient to give jurisdiction over the employer.
The Iowa Supreme Court, relying principally on Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 said (271 N.W. l.c. 207): "No sovereignty can extend its process beyond its own territorial limits to subject either persons or property to its judicial decisions. Every exercise of authority of this sort beyond this limit is a mere nullity and incapable of binding such person or property in any other tribunals. . . . `No state has authority to invade the jurisdiction of another, and by service of process compel parties there resident or being to submit their controversies to the determination of its courts.' . . . `Due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered.' . . . `Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned and their enforcement in the state resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law."
Plaintiff, in the present case, says that Sec. 156 (i) of the Illinois statute "provides exactly that which was lacking" in the Iowa statute. The reference is to the proviso in Sec. 156 (i), but the proviso does not require, nor does any other section of the Illinois statute require that a nonresident who becomes an employer under the Illinois Workmen's Compensation Act thereby make the [117] commission his service agent, and in addition to this omission, Sec. 156 (i) does not require the claimant or the commission, when service is on the commission as in the present case, to take such steps as will make it reasonably probable that notice of such service will be communicated to the nonresident employer. [See Pizzutti v. Wuchter. 103 N.J.L. 130; Wuchter v. Pizzutti, 276 U.S. 13, 48 Sup. Ct. 259, 72 L. Ed. 446, infra.]
Plaintiff cites American Railway Express Co. v. F.S. Royster Guano Co., 273 U.S. 274, 47 Sup. Ct. 355, 71 L. Ed. 642, and Hess v. Pawloski, 274 U.S. 352, 47 Sup. Ct. 632, 71 L. Ed. 1091; Pawloski v. Hess, 250 Mass. 22, 144 N.E. 760. The American Railway Express Company case originated in Virginia. [See American Railway Express Co. v. F.S. Royster Guano Co.,141 Va. 602, 126 S.E. 678.] While doing business as a foreign corporation in Virginia, the Southern Express Company, under the law of Virginia, appointed one Hockadav as its Virginia agent upon whom process against it might be served in Virginia. September 27, 1917, while the Southern was *Page 81
doing busness in Virginia, the guano company made a shipment by express from Richmond to Norfolk, and the shipment was lost. Later the Southern was taken over by the American Railway Express Company, and the Southern ceased to operate in Virginia, and its agent, Hockaday, left the state. After the Southern ceased to operate in the state, and after Hockaday had left the state, the guano company brought suit against the Southern Express Company in the circuit court in Virginia to recover for the lost shipment.
The Virginia law provided that in the event the appointed service agent of a foreign corporation was not available, service could be had upon the chairman of the state corporation commission. The guano company contended that valid service was had upon the Southern by serving the chairman of the state corporation commission. The Southern appeared specially in the circuit court and moved to quash the service "because it had ceased to do business in the state at the time of the issuance of the writ, nor did it have any statutory attorney therein, the former one having removed therefrom for more than a year." The motion was overruled; the Southern made no further appearance and judgment went against it.
In July, 1922, the guano company brought suit, in Virginia, against the American Railway Express Company on its judgment against the Southern. The American Railway Express Company contended, as did the Southern, that the judgment against the Southern was void because there was no valid service. Ruling the question the Virginia Court of Appeals said (126 S.E. l.c. 680):
"It need scarcely be added that, if the judgment sued on be a foreign judgment, or one rendered in a sister state, the question of jurisdiction is always open to inquiry. [Black, Judgments, secs. 818, 835, 894-915.] The cases cited and discussed before the court are of this latter character, and are therefore not authority upon the question of jurisdiction before this court. The circuit court of the city of Norfolk, a court of general jurisdiction, having jurisdiction of the subject matter and parties, upon the service of process adjudged by it to be valid and not void upon its face, is conclusive in Virginia upon other courts, and not open to collateral attack." The judgment was affirmed by the Supreme Court of the United States, but it will be noted that a foreign judgment was not involved as in the present case.
The facts in Hess v. Pawloski, supra, are as follows: Pawloski was a resident of Massachusetts and Hess was a resident of Pennsylvania. Pawloski was injured in Massachusetts by an automobile driven by Hess, and filed suit against Hess in Massachusetts. A Massachusetts statute provided that the operation of a motor vehicle by a nonresident on a Massachusetts public highway was "equivalent to an appointment by such nonresident of the registrar (of motor vehicles) or his successor in office, to be his true and lawful attorney upon whom *Page 82
may be served all lawful processes in any action or proceeding against him, growing out of any accident or collision in which said nonresident may be involved while operating a motor vehicle on such a way, and said . . . operation shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally." The statute had this proviso: "Provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the [118]
defendant, and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the writ and entered with the declaration." Process against Hess was served in compliance with such statute. The Supreme Court of Massachusetts held the service valid, and such ruling was affirmed by the Supreme Court of the United States.
It will be observed that the proviso in the Massachusetts statute made it reasonably probable that actual notice would be communicated to the nonresident defendant.
In Wuchter v. Pizzutti, 276 U.S. 13, 48 Sup. Ct. 259, 72 L. Ed. 446; Pizzutti v. Wuchter, 103 N.J.L. 130, referred to, supra, the facts were these: Pizzutti, a citizen of Pennsylvania, while driving his automobile in New Jersey, injured Wuchter, a citizen of New Jersey, and Wuchter filed suit against Pizzutti in New Jersey to recover for his damages. A New Jersey statute provided as follows: "From and after the passage of this act any chauffeur, operator or owner of any motor vehicle, not licensed under the laws of the State of New Jersey, providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to nonresident chauffeurs, operators and owners by law of driving such a motor vehicle or of having the same driven or operated in the State of New Jersey, without a New Jersey registration or license, shall, by such acceptance and the operation of such automobile within the State of New Jersey, make and constitute the Secretary of State of the State of New Jersey, his, her or their agent for the acceptance of process in any civil suit or proceeding by any resident of the State of New Jersey against such chauffeur, operator or the owner of such motor vehicle, arising out of or by reason of any accident or collision occurring within the State in which a motor vehicle operated by such chauffeur, or operator, or such motor vehicle is involved."
Service in the Wuchter case was had on the Secretary of State. Also, notice was personally served on the defendant at his residence in Allentown. Pennsylvania. Defendant did not appear at the trial, and the plaintiff got judgment. From this judgment defendant appealed to the New Jersey Court of Errors and Appeals. That court affirmed the judgment, and the cause reached the Supreme Court of the United States. It will be noted that the New Jersey statute did not require a plaintiff or the Secretary of State to take such steps *Page 83
as would make it reasonably probable that notice of service be communicated to the nonresident defendant. It was held by the Supreme Court of the United States that the service was not sufficient to support a personal judgment. The court said (276 U.S. l.c. 19): "Where the service of summons is limited (by the statute) to a service on the Secretary of State or some officer of the state, without more, it will be entirely possible for a person injured to sue any nonresident he chooses, and through service upon the state official obtain a default judgment against a nonresident . . ." The court further said (276 U.S. l.c. 24): "But it is said that the defendant here had actual notice by service out of New Jersey in Pennsylvania. He did not, however, appear in the cause and such notice was not required by the statute. Not having been directed by the statute it cannot, therefore, supply constitutional validity to the statute or to service under it." [See also Young v. Masci, 289 U.S. 253, 53 Sup. Ct. 599, 77 L. Ed. 1158.]
In Doherty Company v. Goodman, 294 U.S. 623, 55 Sup. Ct. 553, 79 L. Ed. 1097, it is said (294 U.S. l.c. 628): "Under these opinions (in the Hess, Wuchter, and Young cases, supra), it is established doctrine that a state may rightly direct that nonresidents who operate automobiles on her highways shall be deemed to have appointed the Secretary of State as agent to accept service of process, provided there is some `provision making it reasonably probable that notice of the service on the secretary will be communicated to the nonresident defendant who is sued.'"
No case cited supports plaintiff's contention that the service here involved is valid, and we do not think there is such case in the books. The judgment should be reversed, and it is so ordered.Hyde and Dalton, CC., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3522628/ | The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3522629/ | * Corpus Juris-Cyc References: Accord and Satisfaction, 1CJ, section 40, p. 540, n. 74; Appeal and Error, 3CJ, section 629, p. 735, n. 54.
This proceeding grows out of a sale of hogs by the holder of a junior lien thereon and upon which plaintiff held a superior lien. There was a judgment in favor of plaintiff in the sum of $765.84 and that said sum be classified as a preferred claim against the assets of the defendant, Harrison County Bank, in the hands of its liquidating agent, the defendant, J.W. Wilson, Special Deputy Commissioner of Finance.
The facts show that on the 17th day of June, 1924, U.A. Towns
Son, farmers and stock raisers in Harrison county, gave a note and chattel mortgage securing the same, to the defendant, Harrison County Bank, on certain hogs and other property. The note was in the sum of $500, signed by the mortgagors, payable six months after date to the mortgagee or order and bore interest at the rate of eight per cent per annum. On or about April 27, 1926, the bank, while a going concern, transferred the indebtedness of various persons, evidenced by their promissory notes, to its board of directors, six in number. Among this indebtedness were said note and chattel mortgage. On said 27th day of April these six persons entered into a written agreement, reciting that they held these notes in trust to collect the same, apply the proceeds toward the payment of a note of $20,000, which they had given to one Dunn, and that the balance of the proceeds from the collection of said notes, after paying Dunn, should be returned to the defendant bank and "be credited to the undivided profits account of said bank." The agreement further recited that "we hereby select Joseph F. Noll as trustee to receive, renew and collect said notes and dispose of the proceeds thereof as above provided." The Towns note and chattel mortgage were thereafter delivered to plaintiff.
On the 24th day of September, 1926, U.A. Towns Son gave to the bank a second chattel mortgage upon the property in question. On April 16, 1927, the bank by order of its board of directors, closed its doors and placed its affairs in charge of the defendant, S.L. Cantley, Commissioner of Finance, for the purpose of liquidation. One Shelby, bank examiner under Cantley, took charge of the assets. A few days thereafter Shelby talked to plaintiff, attempting to sell him the mortgaged hogs then on Towns' farm. They had two or three conversations. It appears that Shelby had advanced money to Towns to purchase feed and he desired to sell some or all of the hogs. Plaintiff advised Shelby that he was the holder of a chattel mortgage on the property but Shelby claimed that the bank had a chattel mortgage on it. Thereafter Shelby shipped forty-nine head of the hogs to St. Joseph and there sold them. When the money from the sale of these hogs, amounting to $765.84, was received by Shelby, plaintiff demanded it of him, but Shelby claimed it under the bank's mortgage. Shelby then examined the records and found that the *Page 1164
bank's mortgage was a second mortgage and that plaintiff had the first. Shelby became angry and demanded that the then board of directors of the bank release to the bank any claims that they might have to the money. It appears that the board of directors of the bank had changed from those who were in office at the time the trust agreement was executed. However, Shelby procured the signatures of all of those, or their agents, who were directors of the bank at the time the trust agreement was signed, with the exception of plaintiff. It seems that he obtained this release from them by means of a threat wherein something was said of prosecution of the directors if the loan "was excessive under the statute." Plaintiff was present at the time the release was executed but refused to sign it himself.
After these transactions, there being other hogs covered by plaintiff's chattel mortgage on the Towns farm, plaintiff took possession of them under his chattel mortgage and sold them and some other property covered by his mortgage. Towns took away some of the hogs himself and brought back some of those that he took away and sold the others. The ones that were brought back arrived on the day of plaintiff's sale and were sold by him. At any rate, plaintiff received from his sale and from Towns the total sum of $907.25. The record recites that "$100 of the total $907.25 being paid in settlement and discharge of the mortgage after said sale." Plaintiff testified that after the receipt of said sum of $907.25, he turned over the note to Towns "and made a settlement in full of the $5500 note."
It appears that the money received by Shelby for the forty-nine head of hogs that he sold, was turned over to the bank and is now in the hands of the defendant, J.W. Wilson, Deputy Finance Commissioner, in charge of the bank. After these transactions, plaintiff filed a claim with Wilson, in the latter's official capacity, who rejected it and plaintiff brought this suit. There was a trial before the court without the aid of a jury, resulting in a judgment in favor of plaintiff as aforesaid. There is no point made as to the form of this action but it is claimed that upon the merits the court erred in rendering judgment in favor of plaintiff and in not rendering judgment in favor of the defendant.
It is first insisted that the forty-nine head of hogs sold by Shelby were not shown at the trial as having been covered by plaintiff's chattel mortgage. We think there is no merit in this contention. While there was no specific testimony on the question, the record shows that this was not a contested point. It fairly discloses that it was admitted at the trial that said forty-nine head of hogs were covered by both mortgages, of which plaintiff's was the superior.
It is claimed that the settlement made by plaintiff to Towns after the foreclosure proceedings was "in full settlement of the note;" that the note was delivered to Towns by plaintiff and the amount *Page 1165
paid "was received in settlement and discharge of the mortgage securing the note;" that the other five parties to the agreement of April 27, 1926, appointing plaintiff as trustee, ratified the transaction by executing the release to the bank, thus ratifying the act of plaintiff in making settlement with Towns, and that plaintiff was not entitled to recover.
It is true, as claimed by the defendants, that a discharge of a debt extinguishes the chattel mortgage securing the same and that upon the payment of the debt secured by a first mortgage, the second mortgage becomes eo instante a prior lien and entitled the holder thereof to recover possession of the property. [11 C.J., p. 674.] However, the settlement with Towns made by plaintiff was made after the maturity of the note secured by the first mortgage and said settlement amounted to no more than a part payment of the debt. It is well settled that payment of a part of a debt does not discharge the whole. Part payment operates only as a discharge pro tanto in the absence of a consideration for the release of the residue. [8 C.J. 580; 1 C.J. 539-541; 11 C.J. 676; Witherington v. Phillips, 70 N.C. 444.] The case of Finks v. Buck, 27 S.W. 1094, cited by defendants, involved the rights of a party which came into existence after the payment of a part of the note and its surrender without the knowledge of such party of the facts.
The judgment is affirmed. Arnold, J., concurs; Trimble,P.J., absent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3003287/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 29, 2009*
Decided July 30, 2009
Before
RICHARD A. POSNER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08-4110
MERLIN COLEMAN, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 CV 6571
UNITED STATES OF AMERICA,
Respondent-Appellee. Elaine E. Bucklo,
Judge.
ORDER
Merlin Coleman was sentenced to a total of 240 months’ imprisonment on his
federal drug convictions, and we affirmed the judgment on direct appeal. See United States
v. Jenkins, 419 F.3d 614 (7th Cir. 2005). Coleman then sought collateral relief, see 28 U.S.C.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
No. 08-4110 Page 2
§ 2255, on the ground that trial counsel was ineffective. The district court denied relief, and
once again we affirm the judgment.
Coleman was charged by indictment with conspiracy to distribute crack and
powder cocaine along with several substantive counts. See 21 U.S.C. §§ 846, 841(a)(1). The
government alleged that the conspiracy involved at least 50 grams of crack and 5 kilograms
of cocaine powder, either of which was enough to trigger a 10-year minimum prison term.
See id. § 841(b)(1)(A). Coleman executed a plea agreement, but his plea colloquy ended
abruptly when he refused to admit the drug amounts stipulated in the agreement. After
that hearing Coleman never again signaled to the district court a desire to plead guilty.
And by the time of trial the government had filed a notice of enhancement which doubled
the minimum prison term based on Coleman’s prior conviction for a drug felony. See 21
U.S.C. §§ 841(a)(1), 851. After a jury found him guilty, Coleman was sentenced to that
higher minimum term.
Coleman moved to set aside his convictions claiming, among other things,
ineffective assistance of counsel. At an evidentiary hearing on his motion, Coleman
testified that his trial counsel never warned him that the government could seek an
enhanced sentence if he did not negotiate a guilty plea. Coleman, though, had stated in the
affidavit submitted with his motion that he originally intended to plead guilty precisely
because he hoped to avoid an enhanced sentence under § 851. Under cross-examination,
Coleman maintained that he did not personally prepare the affidavit, and he disavowed it
to the extent that in the document he concedes knowing about the potential for an
enhanced sentence before his failed plea colloquy. Coleman also testified that after that
colloquy he believed that pleading guilty was no longer an option, and he insisted that trial
counsel never explained otherwise. The lawyer testified, however, that he explained the
possibility of a § 851 enhancement before it was filed, and that he showed Coleman the
notice and discussed its impact after it was filed. Trial counsel also testified that he advised
Coleman about pleading guilty and negotiated the plea agreement, which Coleman
rejected, and that afterward he prepared for trial at Coleman’s direction.
The district court denied Coleman’s motion. The court explained that the
contradiction between Coleman’s testimony and his affidavit undermined the credibility of
his assertion that he was unaware that the § 851 enhancement could be, or was, filed. The
district court also thought it implausible that Coleman could have been unaware after the
failed colloquy that he still could elect to plead guilty given that, at a later pretrial hearing,
the court had asked Coleman directly whether he anticipated pleading guilty. Yet despite
rejecting the factual premise of Coleman’s ineffective-assistance claim, the district court
certified that claim for appeal.
No. 08-4110 Page 3
In this court, Coleman proceeds as if the district court had not made adverse factual
findings. He principally renews his contention that his trial lawyer should have, but never
did, tell him after the failed plea colloquy that he might avoid a longer mandatory prison
term by resuming efforts to reach a plea agreement. Coleman again asserts that counsel
never advised him about the possibility of a § 851 filing, and that this omission led him to
reject the plea agreement and proceed to trial. He claims he was subjected to a longer
prison term on account of counsel’s deficient advice.
A lawyer in a criminal case renders ineffective assistance if his performance is
deficient and prejudices the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
Nunez v. United States, 546 F.3d 450, 453 (7th Cir. 2008). In the context of failed plea
negotiations, a defendant who faults his lawyer for the breakdown must establish a
reasonable probability that, if not for counsel’s deficient advice, he would have accepted a
plea offer. Julian v. Bartley, 495 F.3d 487, 498 (7th Cir. 2007); Gallo-Vasquez v. United States,
402 F.3d 793, 798 (7th Cir. 2005); Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991).
Counsel’s performance might also be deficient if he advises a defendant to reject a plea
bargain in the face of overwhelming evidence of guilt and a lack of viable defenses.
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
The district court believed trial counsel rather than Coleman, and since we are not
persuaded that the court’s credibility determination is clearly erroneous, Coleman’s
ineffective-assistance claim is without merit. Rather than counsel’s purported lack of
advice being the “decisive factor” in Coleman’s decision to reject the government’s plea
proposal, see Watson v. Anglin, 560 F.3d 687, 691 (7th Cir. 2009), it was Coleman’s own
unwillingness to stipulate to the drug amounts in the agreement that caused him to back
out. He admitted as much during the evidentiary hearing on his § 2255 motion. As the
district court found, Coleman knew before his aborted change-of-plea hearing that he faced
the possibility that his minimum prison term could be increased by the filing of a § 851
notice; trial counsel had discussed that possibility with Coleman while he was negotiating
the plea agreement and again after Coleman rejected the government’s offer. As a factual
matter, then, counsel’s performance was not deficient. Moreover, Coleman could show no
prejudice from any purported lack of advice because the decision to file the notice was the
government’s alone, and once Coleman backed out of the plea agreement, his counsel’s
advice or lack of advice could not have stopped the government from exercising its
discretion to increase his minimum prison term. See United States v. LaBonte, 520 U.S. 751,
762 (1997) (noting that the decision whether to file a notice under § 851 is “an integral
feature of the criminal justice system, and is appropriate, so long as it is not based upon
No. 08-4110 Page 4
improper factors”); United States v. Smith, 502 F.3d 680, 690-91 (7th Cir. 2007), cert. denied,
128 S. Ct. 1270 (2008).
Coleman raises a number of other issues for the first time in his appellate brief, but
arguments not presented in the district court are waived. Hicks v. Midwest Transit, Inc., 500
F.3d 647, 652 (7th Cir. 2007).
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1906926/ | 724 A.2d 1248 (1999)
1999 ME 31
MAINE ENERGY RECOVERY COMPANY
v.
UNITED STEEL STRUCTURES, INC.
Supreme Judicial Court of Maine.
Argued October 6, 1998.
Decided February 16, 1999.
John H. Montgomery (orally), Gordon F. Grimes, Susan Driscoll, Bernstein, Shur, Sawyer & Nelson, P.A., Portland, for plaintiff.
Harold J. Friedman (orally), Michelle Allott, Friedman, Babcock & Gaythwaite, Portland, for defendant.
Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
RUDMAN, J.
[¶ 1] United Steel Structures, Inc. ("USS") appeals from the judgment entered in the Superior Court (York County, Fritzsche, J.) after the court granted Maine Energy Recovery Company's ("MERC's") renewed motion for a judgment as a matter of law pursuant to M.R. Civ. P. 50(b) and set aside a jury verdict in favor of USS on MERC's claims for breach of contract and breach of express warranty. USS contends that the court erred in vacating the jury verdict in favor of USS, entering a judgment for MERC as a matter of law, and awarding $3,334,400.50 in damages to MERC. We agree that the court erred in setting aside the jury verdict and awarding damages to MERC. Therefore, we vacated the judgment and remand for consideration of MERC's motion for a new trial, which the trial court dismissed as moot.
[¶ 2] The parties presented evidence at trial that tended to establish the following facts. The MERC "waste-to-energy" facility in Biddeford produces fuel from garbage and *1249 uses the fuel to produce electricity. In 1983, Kuhr Technology, Inc. ("KTI") entered a contract with General Electric Company ("GE") to design and construct a "turn-key" facility. In 1986, GE and USS entered a contract that obligated USS to design, supply materials for, and construct a metal tipping building and a processing building for MERC. Thereafter, due to the accumulation of moisture inside the completed tipping and processing buildings, substantial corrosion of the buildings occurred. In an attempt to recover damages for the corrosion of the tipping and processing buildings, MERC sued USS for, inter alia, breach of contract and breach of express warranty.[1]
[¶ 3] The trial court denied USS's Rule 50(a) motion for a judgment as a matter of law at the close of MERC's case. See M.R. Civ. P. 50(a). The court also denied the Rule 50(a) motions that both USS and MERC offered at the close of the evidence. See id. After the jury returned a unanimous verdict in favor of USS on all counts, MERC orally renewed its motion for a judgment as a matter of law pursuant to M.R. Civ. P. 50(b). The court denied MERC's Rule 50(b) motion, stating:
I'm not in the position of deciding whether I agree or disagree with the jury, that's not the task of the judge in a jury case. The jury has been the [factfinder] and if there is substantial evidence to support any of the alternative findings that they could legally have made then the ruling at least at the trial level has to stand, the verdict has to stand.
....
The question becomes: Is there any legitimate basis upon which the jury could have reached the verdict it did?
One of the possible bases is whether ... from the general conditions provisions ... this abnormal condition situation applies. [MERC has argued] that we are looking at normal versus abnormal for tipping buildings, but a counterargument can be made that no one, MERC or KTI, USS or General Electric, for whatever reason fully understood what the conditions were going to be inside that building once it was operation[al]. And so an argument can be made that if no one foresaw or anticipated the high degree of humidity that had turned out to be the case that the actual conditions could in fact be abnormal conditions. It is clear that no one specifically and directly said to USS, "We're going to have a lot of moisture in here, folks, you have got to deal with that." [MERC argued] that [USS] should have foreseen that and taken plans to deal with that and, if they didn't, it is their responsibility. But the counterargument can be made that since nobody fully realized that, nobody warned them, nobody directed them, and there is no indication that anybody really realized this, that you can give the word, "abnormal," a different interpretation.... Regardless of whether I would have reached a different decision, I don't think in the context of this case that is so clear as to preclude [USS] from making that potential argument and the jury possibly having adopted that as the basis for their decision.
The court entered a judgment for USS on September 18, 1997.
[¶ 4] On September 26, 1997, MERC filed a motion[2] asking the court to reconsider its denial of MERC's Rule 50(b) motion. On December 10, 1997, the court granted MERC's motion, vacated the earlier judgment for USS, and entered a judgment for MERC. With notable brevity, the court's written order stated, in pertinent part:
After review of the written memoranda and oral argument I am convinced by the facts of the case, the contractual provisions and the legal principles and standards that the jury's verdict cannot be supported and must be set aside. This is a decision that is not lightly made and has been made by me extremely rarely. A careful review of the contractual documents, even when combined with an assessment of the facts *1250 in the light most favorable to the defendant, compels me to set aside the verdict and enter [a] judgment for the plaintiff in both cases in the uncontested amount sought at trial.
I do not need to reach the issue of whether a new trial should be granted based on conduct of the defendant's lead attorney and will not rule on that issue.
....
Plaintiff's motion for new trial is dismissed as moot.
On December 17, 1997, the court awarded damages to MERC in the amount of $3,334,400.50.
[¶ 5] Rule 50(a) provides that a court may grant a judgment as a matter of law "if the court determines that, viewing the evidence and all reasonable inferences therefrom most favorably to the party opposing the motion, a jury could not reasonably find for that party on an issue that under the substantive law is an essential element of the claim." M.R. Civ. P. 50(a). Pursuant to M.R. Civ. P. 50(b), a party seeking a judgment as a matter of law after trial has the burden of establishing that the adverse jury verdict was "clearly and manifestly wrong." Townsend v. Chute Chem. Co., 1997 ME 46, ¶ 8, 691 A.2d 199, 202.
[¶ 6] When we review the grant of a Rule 50(b) motion for a judgment as a matter of law, we examine the jury's verdict to "determine if any reasonable view of the evidence and those inferences that are justifiably drawn from that evidence supports the jury verdict." Townsend, 1997 ME 46, ¶ 8, 691 A.2d at 202 (quotations omitted). We recently stated:
In reviewing a trial court's disposition of a motion for [a] judgment as a matter of law, we view the evidence together with all justifiable inferences in the light most favorable to the party opposing the motion. The motion should not be granted if "any reasonable view of the evidence could sustain a verdict for the opposing party...." Lewis v. Knowlton, 1997 ME 12, ¶ 6, 688 A.2d 912, 913 (quoting Currier v. Toys `R' Us, Inc., 680 A.2d 453, 455 (Me.1996)) (emphasis added).
[¶ 7] The burden of proof in an action for breach of contract or express warranty is on the plaintiff. The trial court instructed the jury that, in order for MERC to prevail on its contract claim, the jury must find: (1) breach of a material contract term; (2) causation; and (3) damages. The court also instructed the jury that, in order for MERC to prevail on its express warranty claim, the jury must find: (1) that USS made promises amounting to an express warranty; (2) breach of the warranty; (3) causation; and (4) damages.
[¶ 8] Viewing the evidence and all justifiable inferences therefrom in the light most favorable to USS, the jury was not rationally compelled to conclude that MERC had sustained its burden of proving all the above elements of its claims for breach of contract and express warranty. See Lewis, 1997 ME 12, ¶ 8, 688 A.2d at 913. Based on all the evidence, reasonable minds could reach different conclusions on dispositive questions of fact. See Lewis, 1997 ME 12, ¶ 8, 688 A.2d at 913; C.N. Brown Co. v. Gillen, 569 A.2d 1206, 1210 (Me.1990) (discussing j.n.o.v. motions).[3] In fact, the trial court's own comments in denying MERC's original Rule 50(b) motion cogently elucidated a possible rationale for the jury's factual conclusions. A court may not vacate a judgment entered upon a jury verdict in a manner that would constitute a reexamination of the jury's factual conclusions in contravention of article I, section 20 of the Maine Constitution. Cf. Most v. Most, 477 A.2d 250, 258 (Me.1984) (examining motion to alter or amend a judgment pursuant to M.R. Civ. P. 59(e)). Therefore, the court erred in vacating the jury verdict and ruling that USS breached the contracts and express warranties as a matter of law.[4]
*1251 The entry is:
Judgment vacated. Remanded for further proceedings consistent with the opinion herein.
NOTES
[1] The court entered a summary judgment for USS "on any claim [by MERC] that there is an implied warranty of merchantability or an implied warranty for a particular purpose."
[2] Although entitled "motion for reconsideration," MERC's September 26, 1997 motion was, in essence, a renewed motion for a judgment as a matter of law pursuant to M.R. Civ. P. 50(b).
[3] "If, on the basis of credible evidence in the record, reasonable minds could reach different conclusions in regard to a dispositive factual question, the court may not set aside the conclusion reflected in the jury's verdict." C.N. Brown Co. v. Gillen, 569 A.2d 1206, 1210 (Me.1990) (quoting McCain Foods, Inc. v. St. Pierre, 463 A.2d 785, 788 (Me.1983)) (discussing j.n.o.v. motions).
[4] Since we conclude that the court erroneously set aside the jury verdict pursuant to M.R. Civ. P. 50(b), we need not address the other issues USS raised on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3003289/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1569
G ABBANELLI A CCORDIONS & IMPORTS, L.L.C.,
Plaintiff-Appellee,
v.
D ITTA G ABBANELLI U BALDO D I E LIO G ABBANELLI,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 4048—James B. Zagel, Judge.
A RGUED JANUARY 21, 2009—D ECIDED JULY 30, 2009
Before P OSNER, FLAUM, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. This suit under the Lanham Act,
15 U.S.C. §§ 1051 et seq., grows out of a protracted family
dispute over trademarks. The district judge, on the plain-
tiff’s motion for summary judgment, awarded the plain-
tiff, which we’ll call “American Gabbanelli,” a permanent
injunction, damages, and attorneys’ fees. The defendant,
which we’ll call “Italian Gabbanelli,” appeals.
2 No. 08-1569
American Gabbanelli began life in the mid-1960s as the
U.S. distributor for the predecessor of Italian Gabbanelli, a
manufacturer of accordions in Italy. In 1996 and 1997
American Gabbanelli obtained registered U.S. trademarks
on the name “Gabbanelli” for use on accordions and
began importing accordions designed to its specifica-
tions and manufactured by Italian Gabbanelli and other
companies. In 1999 American Gabbanelli sued Italian
Gabbanelli in an Italian court, complaining about the
Italian company’s using the Internet domain name
www.gabbanelli.com and advertising the Gabbanelli
trademark over the Internet. The defendant won that
suit, which was followed by two more trademark suits
in the Italian court, one by each of the parties.
The parties settled their differences (they thought!)
later that year by an agreement that gave American
Gabbanelli the exclusive right to use the Gabbanelli mark
in North America and Italian Gabbanelli the exclusive
right to use it in Italy. The agreement provided that “any
further controversy” would be resolved by arbitration
conducted in Italy in the Italian language, with each
party to appoint an arbitrator and the two arbitrators to
appoint a third arbitrator, who would be the chairman
of the arbitration panel.
A “further controversy” soon arose and each party
appointed an arbitrator. But for unexplained reasons the
third arbitrator has never been appointed and no arbitra-
tion has ever been conducted. Instead, Italian Gabbanelli
filed another suit in the Italian court, in May 2002,
seeking a transfer of American Gabbanelli’s U.S. trade-
No. 08-1569 3
marks to it. Recently that court issued its judgment, and
it is in Italian Gabbanelli’s favor.
The present suit was filed by American Gabbanelli in
January 2002 in a federal district court in Texas and
charges Italian Gabbanelli with infringing American
Gabbanelli’s U.S. registered trademarks. There was a
change of venue to the district court in Chicago, and
several months later Italian Gabbanelli, though unrepre-
sented by counsel, wrote a letter to the district court
contending that the arbitration clause in the agreement
settling the original Italian litigation barred the court
from exercising jurisdiction over American Gabbanelli’s
suit. The district judge rejected the contention after Italian
Gabbanelli finally retained counsel (see below). Having
filed suit itself (the Italian suit to which we referred
earlier) rather than proceed in arbitration, Italian
Gabbanelli can hardly be heard to complain about its
opponent’s having done the same thing. True, Italian
Gabbanelli could not invoke arbitration before the third
arbitrator was appointed. But if the reason the third
arbitrator was not appointed was that American
Gabbanelli’s arbitrator had refused to cooperate with
Italian Gabbanelli’s arbitrator in picking the third arbitra-
tor, Italian Gabbanelli could have sought relief in the
Italian court for breach of the arbitration clause. It has
sought such relief, in still another suit, but we have not
been told what the ground of that suit is, or its outcome.
The issue of the effect of the arbitration clause on the
present lawsuit is in any event not jurisdictional. A
person who having agreed to arbitrate instead brings a
4 No. 08-1569
suit has broken his contract, and the breach can be
pleaded as a defense to his suit. But even if the defense
is sound, it no more deprives the court of jurisdiction
than a defense based on any other contractual forum-
selection clause would. Scherk v. Alberto-Culver Co., 417
U.S. 506, 518-20 (1974); Baltimore & Ohio Chicago Terminal
R.R. v. Wisconsin Central Ltd., 154 F.3d 404, 408-09 (7th
Cir. 1998); cf. CIGNA HealthCare of St. Louis, Inc. v. Kaiser,
294 F.3d 849, 852-53 (7th Cir. 2002); Lloyd v. HOVENSA,
LLC, 369 F.3d 263, 272 (3d Cir. 2004); Reynolds Jamaica
Mines, Ltd. v. La Societe Navale Caennaise, 239 F.2d 689, 694
(4th Cir. 1956). This is apparent from the fact that parties
to an arbitration agreement can always waive the agree-
ment and decide to duke out their dispute in court,
Grumhaus v. Comerica Securities, Inc., 223 F.3d 648, 650-51
(7th Cir. 2000); Cabinetree of Wisconsin, Inc. v. Kraftmaid
Cabinetry, Inc., 50 F.3d 388, 389-91 (7th Cir. 1995); Hoxworth
v. Blinder, Robinson & Co., 980 F.2d 912, 925-27 (3d Cir.
1992)—which in effect is what happened in this case. So
not only is there no jurisdictional obstacle; there is no
contractual (or for that matter any other) obstacle. Italian
Gabbanelli waived its right to insist on arbitration by
bringing suit upon a “further controversy” between the
parties in violation of the arbitration clause in its settle-
ment agreement with American Gabbanelli.
The letter challenging the district court’s jurisdiction
was sent, as we said, in July 2002. In October the court
stayed further proceedings pending the outcome of the
Italian suit that Italian Gabbanelli had filed earlier that
year. In May 2005, with the Italian court not yet having
rendered a decision, the district judge became impatient
No. 08-1569 5
and lifted the stay. American Gabbanelli promptly served
Italian Gabbanelli with requests for admission, essentially
asking it to admit liability on all the plaintiff’s trade-
mark claims. The defendant had 30 days to respond. Fed.
R. Civ. Pro. Rule 36(a)(2), (3), (4). In October 2005, months
later, without having responded to the requests for ad-
mission, Italian Gabbanelli finally hired a law firm and
the firm entered an appearance in the case.
American Gabbanelli moved for summary judgment.
After delays while the parties contested the (nonexistent)
jurisdictional issue, Italian Gabbanelli filed its opposition
to the motion for summary judgment in June 2007.
But having missed the deadline for responding to the
request for admissions it was deemed to have made the
requested admissions. Fed. R. Civ. P. 36(a)(3); Fabriko
Acquisition Corp. v. Prokos, 536 F.3d 605, 607 (7th Cir.
2008); Hadley v. United States, 45 F.3d 1345, 1347-48 (9th Cir.
1995). So when the defendant moved to be permitted
to withdraw the admissions and substitute affidavits
contradicting them, the judge denied the motion and
the grant of summary judgment followed swiftly.
Italian Gabbanelli had no excuse for ignoring its oppo-
nent’s request for admissions long, long past the dead-
line. Though a small company, it has lawyers in Italy who
could have put it in touch with an American law firm
when it was sued back in 2002. And a law firm did finally
make an appearance for it in October 2005—yet waited
almost two years after that before moving to rescind the
admissions. The excuse that the arbitration clause required
the request for admissions in an American lawsuit to be in
6 No. 08-1569
Italian is frivolous; the defendant’s initial letter, objecting
to the suit, was in English. The district judge was not
required to rescind the admissions, United States v. 2204
Barbara Lane, 960 F.2d 126, 129-30 (11th Cir. 1992), and, with
the admissions thus a part of the evidentiary record the
grant of summary judgment in favor of the plaintiff was
inevitable.
But what about the recent Italian judgment in Italian
Gabbanelli’s favor? The company had tried, before the
appeal was argued, to submit it directly to us, but we
directed that it instead be submitted to the district judge,
with a request that he make it a part of the record, as in
United States v. Ramirez, 421 F.3d 159, 167 (2d Cir. 2005).
An American court can take judicial notice of a foreign
judgment, Hilton v. Guyot, 159 U.S. 113, 205-06 (1895);
Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 411-12
(6th Cir. 2006); United States v. Garland, 991 F.2d 328, 332-34
(6th Cir. 1993), but in most cases (not all—see, e.g., Crockett
v. Hulick, 542 F.3d 1183, 1188-89 n. 3 (7th Cir. 2008);
Ruvalcaba v. Chandler, 416 F.3d 555, 563 n. 2 (7th Cir. 2005);
Dickerson v. Alabama, 667 F.2d 1364, 1367-68 (11th Cir.
1982)) the sensible procedure is first to lodge it with the
trial court, as in the Ramirez, Train House, and Garland
cases, and that is the usual practice. See also Ennis v.
Smith, 55 U.S. 400, 430-31 (1852); Lloyd v. American Export
Lines, Inc., 580 F.2d 1179, 1188-90 (3d Cir. 1978). The
significance of a foreign judgment for pending litiga-
tion depends obviously on its meaning, which will re-
quire an accurate translation if, as in this case, the judg-
ment was rendered by a court in a non-English-speaking
country. And because the United States is not a signatory
No. 08-1569 7
to any treaty governing recognition of foreign judgments,
Alessandro Barzaghi, “Recognition and Enforcement of
United States Judgments in Italy,” 18 N.Y. Int’l L. Rev. 61,
65 (2005), the significance of the foreign judgment will
depend on a variety of other considerations as well,
having to do with the reliability of the foreign pro-
ceeding for determining the parties’ rights. See Restate-
ment (Third) of Foreign Relations Law § 482 (1987). Some of
those considerations, such as adequacy of notice, are also
best treated as matters of fact because their accurate
determination can benefit from compliance with the
rules of evidence. See Fed. R. Civ. P. 44.1; Twohy v.
First National Bank, 758 F.2d 1185, 1192-94 (7th Cir. 1985).
Although Italian Gabbanelli did as we directed and
asked the district judge to add the Italian judgment to
the record, he refused. His ground was that the
company was trying to get him to find facts while the
case was on appeal and jurisdiction over the case had
therefore shifted to the court of appeals. We could have
been clearer, but our intention was to order a limited
remand to give the parties an opportunity to supple-
ment the record with the judgment (and pertinent inter-
pretive materials), which might assist us in deciding the
appeal, as in Seetransport Wiking Trader Schiffarhtsgesellschaft
MBH & Co. v. Navimpex Centrala Navala, 989 F.2d 572,
583 (2d Cir. 1993).
No matter. Because the Italian judgment postdates the
American one, it cannot be pleaded as res judicata, or, so
far as we can see, do anything else to advance Italian
Gabbanelli’s cause. It is more likely that the American
8 No. 08-1569
judgment, at least once the defendant has exhausted its
appellate remedies (an essential condition, as we are about
to see), could be pleaded as res judicata in the Italian
litigation, assuming that the Italian litigation has not
yet concluded—that appellate remedies remain unex-
hausted. Although the parties haven’t bothered to tell us
anything about the Italian doctrine of res judicata, our
own research reveals that the Italian doctrine (on which
see Article 2909 of the Italian Civil Code; Enrico Zattoni,
“Some Comparative Reflections on Issue Preclusion in
Civil Cases: Collateral Estoppel and Giudicato Sull
‘Eccezione’,” 41-44 (L.L.M. thesis, Harvard Law School,
Apr. 1992); and Barzaghi, supra, 69-70, 85-88, 95), unlike
the American, does not accord res judicata effect to a
judgment, whether domestic (that is, Italian) or foreign,
until appellate remedies have been exhausted. Spier v.
Calzaturificio Tecnica, S.p.A. WL 200651, at *1-2 (S.D.N.Y.
Dec. 3, 1990); Barzaghi, supra, at 85; Andrea Bonomi, “The
Italian Statute on Private International Law,” 27 Int’l J.
Legal Information 247, 266-67 (1999).
It is true that American courts apply the American
doctrine of res judicata even to a foreign judgment of a
nation like Italy that would not treat an American judg-
ment the same way. Restatement, supra, § 481, comment d;
Restatement (Second) of Conflict of Laws § 98 (1971); Richard
W. Hulbert, “Some Thoughts on Judgments, Reciprocity,
and the Seeming Paradox of International Commercial
Arbitration,” 29 U. Pa. J. Int’l L. 641, 642-44 (2008). And
so the fact that the Italian judgment is not final in the
sense of appellate remedies having been exhausted is not
No. 08-1569 9
important. But what is important is that it was ren-
dered after the judgment of the district court.
The Italian judgment in short is a red herring in this
appeal. Italian Gabbanelli’s challenge to liability fails.
But it has a legitimate grievance concerning the
damages that the district judge awarded—$151,200 in lost
profits plus statutory damages of $500 per infringing
accordion. The latter award is the focus of contention.
The Lanham Act authorizes statutory damages only in
cases in which the violation of the Act takes the form
of using a “counterfeit” mark, § 1117(c)—“a spurious
mark which is identical with, or substantially indistin-
guishable from, a registered mark,” § 1116(d)(1)(B)(ii); see
also §§ 1117, 1127—as distinct from cases in which the
mark is placed on the defendant’s product with the
trademark owner’s consent but the product is then distrib-
uted through an unauthorized channel. Louis P. Petrich,
“Preliminary Injunctions and Temporary Restraining
Orders in Copyright and Trademark Infringement Cases:
The Trademark Counterfeiting Act,” 326 PLI/Pat 499, 570-
71 (1991). For example, a product licensed to be sold only
in Europe but sold in the United States under the licensor’s
trademark would be a “grey market” good rather than a
good sold by means of a “counterfeit” mark. Id. But Italian
Gabbanelli placed the Gabbanelli mark on accordions made
by a company that was not authorized to manufacture
accordions for sale in the United States under the
Gabbanelli name; this made its use of the name counter-
feiting. Idaho Potato Commission v. G & T Terminal
Packaging, Inc., 425 F.3d 708, 722 (9th Cir. 2005).
10 No. 08-1569
However, statutory damages may be awarded only in
cases in which compensatory damages are not awarded
for the same violation. 15 U.S.C. §§ 1117(c), (d); Derek
Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 699 (9th
Cir. 2008); Twin Peaks Productions, Inc. v. Publications Int’l,
Ltd., 996 F.2d 1366, 1380-82 (2d Cir. 1993). It is true that
if there are separate violations, the fact that they are
charged in the same case does not preclude an award
of compensatory damages for some of the violations
and statutory damages for others as to which compensa-
tory damages can’t be ascertained or are too slight to
warrant the expense of determining but in which deter-
rence would be served by a money judgment. Cf. Nintendo
of America, Inc. v. Dragon Pacific Int’l, 40 F.3d 1007, 1010-11
(9th Cir. 1994). But this is not such a case. Both the lost
profits, which are compensatory damages, and the statu-
tory damages pertain to the same accordions that
Italian Gabbanelli sold in violation of American
Gabbanelli’s trademark rights.
A further problem with the damages award is the
amount of statutory damages that can be awarded in the
case of a counterfeit trademark: “not less than $500 or
more than $100,000 per counterfeit mark per type of
goods or services sold, offered for sale, or distributed, as
the court considers just.” 15 U.S.C. § 1117(c). Per “type
of goods”—not per individual item bearing the counter-
feit mark. 5 J. Thomas McCarthy, McCarthy on Trademarks
and Unfair Competition § 30:95 (4th ed. 2009).
The damages award must therefore be vacated. The
judgment is affirmed except with respect to that award
No. 08-1569 11
and also the award of attorneys’ fees, which the district
court will have to redetermine at the conclusion of the pro-
ceedings on remand.
A FFIRMED IN P ART, R EVERSED IN P ART,
AND R EMANDED WITH INSTRUCTIONS.
7-30-09 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3004267/ | United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 22, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-2219
GERALD A. JUDGE and DAVID Appeal from the United States District
KINDLER, Court for the Northern District
Plaintiffs-Appellants, of Illinois
v. No. 09 C 1231
PATRICK J. QUINN, Governor of the John F. Grady, Judge.
State of Illinois, and ROLAND W.
BURRIS, U.S. Senator,
Defendants-Appellees.
ORDER
On June 28, 2010, Defendant-Appellee Patrick J. Quinn filed a “Motion to Amend
Opinion or, in the Alternative, Petition for Rehearing En Banc, of Defendant-Appellee Patrick
J. Quinn, Governor of the State of Illinois.” As ordered by the court, Plaintiffs-Appellants filed
their response to that motion on July 7, 2010. The court construes the motion as a petition for
rehearing or rehearing en banc.
On consideration of the petition, so understood, all of the judges on the original panel
have voted to deny rehearing, and no judge in active service has requested a vote on the
No. 09-2219 Page 2
petition for rehearing en banc. It is therefore ORDERED that the petition for rehearing en banc
is DENIED.
It is further ORDERED that the opinion of the court is revised as follows. On page 38, line
19, the following language is deleted:
However Illinois conducts its election for the vacancy, the replacement senator
presumably would present his or her credentials to the Senate and take office
immediately, while the senator elected to begin service with the 112th Congress
would not take office until January 3, 2011.
In its place, the following two new paragraphs are added:
The district court has the power to order the state to take steps to bring
its election procedures into compliance with rights guaranteed by the federal
Constitution, even if the order requires the state to disregard provisions of state
law that otherwise might ordinarily apply to cause delay or prevent action
entirely. It is elementary that the Seventeenth Amendment’s requirement that
a state governor issue a writ of election to guarantee that a vacancy in the state’s
senate delegation is filled by an election is an aspect of the supreme law of the
land. U.S. C ONST. art VI, cl. 2. To the extent that Illinois law makes compliance
with a provision of the federal Constitution difficult or impossible, it is Illinois
law that must yield. See Rice v. Cayetano, 528 U.S. 495 (2000) (holding that state-
law rules governing elections of trustees to the Office of Hawaiian Affairs
violated the Fifteenth Amendment); Dunn v. Blumstein, 405 U.S. 330 (1972)
(striking down state-law durational residency requirements as unconstitutional
under the Fourteenth Amendment); Harper v. Virginia Bd. of Elections, 383 U.S.
663 (1966) (holding that state-law poll taxes violated the Fourteenth
Amendment).
However Illinois conducts its election for the vacancy, the state should
endeavor to certify the results of that election as soon as possible, so that the
replacement senator may present his or her credentials to the Senate and take
office promptly. The senator elected to begin service with the 112th Congress
will take office as the Constitution provides on January 3, 2011. U.S. C ONST.
amend. XX, sec. 1.
In all other respects, the petition for rehearing is DENIED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3004276/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 13, 2010
Decided July 15, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐3035
Appeal from the
UNITED STATES OF AMERICA, United States District Court for the
Plaintiff‐Appellee, Eastern District of Wisconsin.
v. No. 07‐CR‐123
DARIN D. BOWIE, Lynn Adelman,
Defendant‐Appellant. Judge.
O R D E R
A jury in Milwaukee, Wisconsin, found Darin Bowie guilty on multiple counts of
trafficking cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Bowie was sentenced to a total of
235 months’ imprisonment and 5 years’ supervised release. He filed a notice of appeal, but
his appointed lawyer has concluded that the case is frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738, 744 (1967). We review only the potential issues
identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973‐74
(7th Cir. 2002), and in Bowie’s response, see CIR. R. 51(b).
In his Anders submission, counsel first evaluates whether Bowie could argue that the
delay in bringing him to trial violated the Speedy Trial Act, 18 U.S.C. §§ 3161‐74. But by
failing to seek dismissal on this ground in the district court, Bowie waived his right to
No. 09‐3035 Page 2
enforce the Act’s time limit. See id. § 3162(a)(2); United States v. Gearhart, 576 F.3d 459, 462
(7th Cir. 2009). His waiver precludes us from applying even plain‐error review, see United
States v. Broadnax, 536 F.3d 695, 699 (7th Cir.), cert. denied, 129 S. Ct. 665 (2008), so any
argument under the Speedy Trial Act would be frivolous.
Counsel next questions whether Bowie could challenge the jury’s verdict on the one
conspiracy count as lacking evidentiary support. (Bowie received fully concurrent
sentences on all counts, but after Ray v. United States, 481 U.S. 736 (1987), a court of appeals
cannot use the concurrent‐sentence doctrine to bypass this question, see United States v.
Moon, 512 F.3d 359, 363 (7th Cir. 2008).) The government charged that Bowie conspired
with five others to distribute cocaine. One of the five, Calvin Coleman, testified that he sold
Bowie four‐and‐a‐half ounces of cocaine on a weekly basis for about a year. Coleman said
he occasionally “fronted” the drugs, which he defined as making delivery without
demanding immediate payment. Coleman acknowledged, however, that he did not advise
or supervise Bowie, nor did he impose quotas on the amounts of cocaine that Bowie could
or must move. Coleman emphasized that he viewed Bowie as a mid‐level customer and
“his own man.” Several other witnesses testified that Bowie had sold them cocaine using
coded language and knew that they resold the drugs. All of them conceded, though, that
Bowie demanded payment up front and was not their only source of supply.
We would view the evidence in the light most favorable to the government and
uphold the verdict if any rational jury could have found the essential elements beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Mitten,
592 F.3d 767, 776 (7th Cir. 2010). To convict Bowie on the § 846 count, the government was
required to establish that he knowingly agreed with at least one other person to possess
cocaine for distribution. See United States v. Taylor, 600 F.3d 863, 868 (7th Cir. 2010); United
States v. Avila, 557 F.3d 809, 814 (7th Cir. 2009). Hallmarks of a conspiracy include, among
other things, sales on consignment or credit. E.g., United States v. Dean, 574 F.3d 836, 843
(7th Cir. 2009); United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008); United States v. Bender,
539 F.3d 449, 454 (7th Cir. 2008), cert. denied, 129 S. Ct. 2415 (2009); Moon, 512 F.3d at 364.
Here, the “fronting” described by Coleman was a sale on credit. (Consignment sales permit
the middleman to return unused drugs and are quintessential evidence of a conspiracy, see
United States v. Johnson, 592 F.3d 749, 755 n.5 (7th Cir. 2010), but there is no evidence that
Bowie could return the drugs.) Not all credit sales will support an inference that seller and
buyer have reached an agreement to distribute drugs. Johnson, 592 F.3d at 756 n.5. But
evidence of credit sales “coupled with certain characteristics inherent in an ongoing
wholesale buyer‐seller relationship,” e.g., large quantities of drugs or repetitive
transactions, is sufficient to distinguish a conspiracy from a nonconspiratorial buyer‐seller
relationship. Id. Coleman testified that he sold a specific amount of cocaine to Bowie on
credit every week for almost a year, and thus we agree with appellate counsel that it would
No. 09‐3035 Page 3
be frivolous to argue that no rational jury could have found that the two men were
conspirators. See United States v. Fouse, 578 F.3d 643, 649‐50 (7th Cir. 2009) (upholding jury’s
verdict that he engaged in conspiracy where defendant bought on credit, worked with
others to sell drugs, and coordinated prices); United States v. Fuller, 532 F.3d 656, 662‐63 (7th
Cir. 2008) (upholding conspiracy conviction where defendant bought from dealer on steady
basis every week or two over five‐month relationship, used code words to discuss types and
amounts of drugs, and bought on credit).
As far as sentencing, counsel and Bowie (in his Rule 51(b) response) consider
arguing that it was clear error to assign a drug quantity of 15 to 50 kilograms of cocaine.
See, e.g., United States v. Vaughn, 585 F.3d 1024, 1031 (7th Cir. 2009), cert. denied, 78 U.S.L.W.
3714 (U.S. June 07, 2010) (No. 09‐8988). But any argument about the quantity finding would
be frivolous because after he was arrested, Bowie confessed to selling half a kilogram per
week for 18 months. See United States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003) (explaining
that drug dealer’s post‐arrest statements are especially reliable in establishing the extent of
trafficking).
In his Rule 51(b) response, Bowie proposes to argue that Apprendi v. New Jersey,
530 U.S. 466 (2000), required the jury to decide the amounts of cocaine involved. But this
argument would be frivolous because Bowie was sentenced below the 20‐year default
maximum that applies for any amount of cocaine. See United States v. Clark, 538 F.3d 803,
811‐12 (7th Cir. 2008), cert. denied, 129 S. Ct. 1613 (2009); United States v. Gilmer, 534 F.3d 696,
704 (7th Cir. 2008).
Counsel also considers whether Bowie could challenge the increase in offense level
for possessing a gun, see U.S.S.G. § 2D1.1(b)(1), or the upward adjustment for obstructing
justice, see id. § 3C1.1. Bowie’s counsel did not object to either adjustment at sentencing, so
our review would be for plain error. See, e.g., United States v. Jumah, 599 F.3d 799, 811 (7th
Cir. 2010). Bowie asserts in his Rule 51(b) response that he didn’t own or even know about
the gun police found in his living‐room closet. He points to the trial testimony of Melvin
Barnes, a defense witness who said he put the gun in the closet while temporarily living
with Bowie. Ownership is irrelevant, though, and Barnes conceded that he never saw the
gun again after placing it in the closet. On the other hand, two police officers who searched
Bowie’s house with his consent testified at trial that he alerted them he had a gun in the
living‐room closet. The officers found the gun (with an obliterated serial number) in that
closet along with 148 grams of cocaine, $20,000 in currency, and a scale. Thus, an appellate
challenge to the upward adjustment for the gun would be frivolous. See United States v. Are,
590 F.3d 499, 526 (7th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3590 (Mar. 30, 2010)
(No. 09‐1191); United States v. Perez, 581 F.3d 539, 546‐47 (7th Cir. 2009); United States v.
No. 09‐3035 Page 4
Rollins, 544 F.3d 820, 837‐38 (7th Cir. 2008), cert. denied, 78 U.S.L.W. 3688 (U.S. May 24, 2010)
(No. 09‐10339).
Further, among the nonexhaustive list of conduct constituting obstruction of justice
is “threatening, intimidating, or otherwise unlawfully influencing a co‐defendant.” U.S.S.G.
§ 3C1.1, cmt. n.4(a). The district court applied the upward adjustment because Bowie sent a
letter to a codefendant warning him not to cooperate. (Bowie insists in his Rule 51(b)
response that he was simply “telling or asking” his codefendant to exercise his
constitutional right to trial by jury.) We agree with counsel that it would be frivolous to
argue that the district court’s conclusion that Bowie unlawfully attempted to influence his
codefendant was clearly erroneous. See United States v. Richards, 198 F.3d 1029, 1032‐33 (7th
Cir. 2000) (upholding application of § 3C1.1 adjustment where defendant warned
codefendant to keep quiet).
Last, in his Rule 51(b) response, Bowie argues that under Melendez‐Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009), he was entitled to cross‐examine the chemists who
analyzed the cocaine recovered from his home. But this argument is frivolous because
Bowie stipulated at trial to the drug type and quantity. See id. at 2534 n.3, 2541; see also
United States v. Wingate, 128 F.3d 1157, 1160‐61 (7th Cir. 1997).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3004096/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2999
D ARRYL S IMMS,
Petitioner-Appellant,
v.
G ERARDO A CEVEDO ,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 28—Robert W. Gettleman, Judge.
A RGUED A PRIL 13, 2009—D ECIDED F EBRUARY 19, 2010
Before C UDAHY, P OSNER, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Before us is Darryl Simms’s
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Like so many habeas cases, this one turns not
on principles of constitutional or criminal law, but on
state procedural requirements. At issue are two peti-
tions that Simms filed in Illinois state court. If either was
properly filed when Simms contends it was, his
federal petition for habeas corpus is timely and should
2 No. 07-2999
be addressed on the merits. But if not, Simms’s federal
petition is barred by the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1), unless
his circumstances merit equitable tolling of the limita-
tions period.
Simms was convicted in 1985 of murder, aggravated
criminal sexual assault, robbery, home invasion, and
residential burglary. After a bench trial, he was sen-
tenced to death. On appeal, his conviction was affirmed,
but his sentence was vacated and the case was remanded
to the trial court. On remand, he was again sentenced to
death, this time by a jury. He appealed again and the
case was remanded again because of a bad jury instruc-
tion. On remand, he was again sentenced to death by a
jury. He appealed, the death sentence was affirmed, and
certiorari was denied.
In 1995, while his appeals were pending, Simms filed a
pro se petition for post-conviction relief in Illinois circuit
court. In May 1997, he amended his petition, this time
with the help of counsel. In August 1998, the peti-
tion was dismissed. Simms appealed to the Illinois Su-
preme Court and the court remanded the case, in
August 2000, to the circuit court with instructions to
hold an evidentiary hearing on Simms’s Brady v. Maryland
claims. In January 2003, Illinois’s then-governor, George
Ryan, commuted Simms’s death sentence (and those of
all Illinois’s capital offenders) to a term of life imprison-
ment without the possibility of parole. Simms withdrew
his Brady claims on June 22, 2004, before the evidentiary
hearing was held; Simms states that he withdrew his
No. 07-2999 3
petition because he did not want to jeopardize the com-
mutation of his sentence. On July 7, 2004, the trial court
entered an order acknowledging the withdrawal of
Simms’s claims in Illinois state court.
Apparently his fears regarding the commutation of his
sentence were assuaged sometime around June 7, 2005,
because at that point (although the exact date is not
clear for reasons discussed below), Simms attempted to
file a pro se petition for habeas relief in the Randolph
County Circuit Court. Attached to the petition was an
application to proceed in forma pauperis. Around three
weeks later (once again, the time is indeterminate
because the petition was never file stamped by the clerk),
in a letter dated June 30, 2005, the Randolph County
Circuit Court clerk returned Simms’s petition because
he had not submitted a filing fee or the necessary copy
of his trust account balance to support his in forma
pauperis application.
On July 1, 2005, the same day Simms received his
rejected application, he resubmitted the pro se com-
plaint for habeas relief. The court accepted the filing of
the petition on this date. But, the trial court later
dismissed the complaint on the merits; the dismissal was
affirmed by the Illinois Appellate Court, Simms v. Uchtman,
No. 5-05-0561 (Ill. App. Ct. June 5, 2006) (unpublished
order), and the Illinois Supreme Court denied leave
to appeal on November 29, 2006. Simms immediately
filed a petition for rehearing but it was rejected by the
clerk of the Illinois Supreme Court on December 29, 2006.
By this point, Simms had already filed his federal
habeas petition. He did so on December 7, 2006.
4 No. 07-2999
The federal petition was dismissed by the district court
on a finding that it was untimely under the one-year
statute of limitations established by AEDPA. 28 U.S.C.
§ 2244(d)(1). The court determined that Simms’s one-
year clock started on July 7, 2004, which was the day
the Illinois trial court issued an order acknowledging
that Simms had withdrawn his post-conviction claims.
The district court did not stop the clock until July 1, 2005,
which the court found was the date Simms properly
filed his complaint for state habeas relief. This was 358
days after the clock started—so at this point he had
seven days left. The district court tolled the clock until
November 29, 2006, which is when the Illinois Supreme
Court denied Simms’s petition for leave to appeal. The
district court refused to toll Simms’s limitations period
for the petition for rehearing that Simms filed immedi-
ately after his petition for leave to appeal was denied by
the Illinois Supreme Court.
Thus, on November 30, according to the district court,
the clock started again and Simms filed his habeas appeal
on December 7, 2006—eight days later. The district court
therefore found that Simms had missed the dead-
line by one day. The court then considered whether
the statute should be equitably tolled and found that
it should not because Simms had not pursued his
rights diligently. The court thus dismissed the petition
as untimely and did not reach the merits. Simms appeals.
We review the decision to dismiss a habeas corpus
petition as untimely de novo. Moore v. Knight, 368 F.3d 936,
938 (7th Cir. 2004). Simms claims that the AEDPA limita-
No. 07-2999 5
tions period should have been tolled during two periods—
when his state habeas petition was sent to the Illinois
circuit court clerk on June 7, 2005, and when his petition
for rehearing was sent to the Illinois Supreme Court clerk
on November 29, 2006. Both of these petitions, he argues,
were properly filed; thus, under the terms of AEDPA,
his federal petition is timely. See 28 U.S.C. § 2244(d)(2)
(tolling the statute of limitations when “a properly filed
application for State post-conviction or other collateral
review . . . is pending”). In the alternative, Simms
argues that the district court abused its discretion in not
applying the doctrine of equitable tolling to his petition.
I. Was the June 7, 2005 Petition Properly Filed?
Simms contends that he mailed his state habeas petition
on June 7, 2005, and it should be deemed filed on that date
under Illinois’s mailbox rule. See People v. Saunders, 633
N.E.2d 1340, 1341-42 (Ill. App. Ct. 1994). Simms argues
that despite his failure to attach a copy of his trust fund
ledger, the circuit court was required to accept his
petition under Illinois law, and therefore it was properly
filed. The rejection of the application, he argues, was
in error.
Under Illinois law, the court clerk was required to
“accept and file any complaint, appearance, or other
paper presented by the applicant if accompanied by an
application to sue or defend in forma pauperis, and
those papers shall be considered filed on the date the
application is presented.” 735 Ill. Comp. Stat. 5/5-105(e).
The “application” to sue is required to “be in writing and
6 No. 07-2999
supported by the affidavit of the applicant.” Id. 5/5-105(c).
The court clerk relied on Administrative Order 90-7 of
the Circuit Court of Randolph County, which requires
inmates seeking to proceed in forma pauperis to submit
a copy of their trust fund ledger as part of their affidavit.
Because Simms did not include the trust fund ledger,
the clerk rejected the application.
The Supreme Court has held that failure to comply
with certain state law requirements does indeed render a
petition improperly filed. Pace v. DiGuglielmo, 544 U.S. 408,
413 (2005) (holding that untimely state postconviction
motions are not considered “properly filed” for purposes
of AEDPA). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000)
(holding that petitions for state relief that contain
claims that are procedurally barred may still be properly
filed). In Pace, the Supreme Court noted specifically that
the formal requirements for most petitions are not en-
trusted to the clerk’s discretion, but must be later deter-
mined by the judge. Pace, 544 U.S. at 415 & n.5. The peti-
tioner’s argument in that case was that only petitions
rejected by the clerk could be declared improperly
filed under AEDPA.
Simms’s argument is somewhat the inverse of the
losing one in Pace. The clerk, he says, was required to
file his petition whether or not it met the required
form and therefore the petition should be considered
filed when submitted to the clerk. To the extent that
Simms argues that the period between the time the
clerk received the petition and rejected it as improperly
filed should be tolled, we can reject that out of hand. In
No. 07-2999 7
Pace, the Supreme Court foreclosed such a contention. See
Pace, 544 U.S. at 414 (rejecting the notion that the
“proper filing” of a petition is determined based on its
acceptance by a clerk).
Simms, then, must be contending that the clerk erred
by misinterpreting state law, which he says commanded
the clerk to accept the petition, and that the petition was
therefore properly filed as mailed on June 7. Notably,
Simms does not offer evidence that he complied with
the local rule on in forma pauperis petitions, and that the
clerk overlooked his compliance. Instead, he argues
that the clerk was required to accept the petition despite
the deficiency and cites to Illinois law for the uncontro-
versial proposition that a local rule cannot trump state
law. Vision Point of Sale, Inc. v. Haas, 875 N.E.2d 1065, 1080
(Ill. 2007) (Circuit courts in Illinois are vested with the
power “to adopt local rules governing civil and criminal
cases so long as . . . they do not conflict with supreme
court rules or statutes . . . .”).
On behalf of the warden, Illinois argues that we must
defer to the clerk’s interpretation of the Illinois statute
and its relationship with the circuit court’s filing require-
ments. But the clerk’s determination of whether or not
the petition was improperly filed is immaterial; had the
clerk accepted the petition, any infirmity of the type
described in Pace would have rendered it improperly
filed. In fact, the case Illinois relies on, Artuz, 531 U.S. at 8,
makes clear that petitions are properly filed when their
“delivery and acceptance are in compliance with the
applicable laws and rules governing filings.” Furthermore,
8 No. 07-2999
a filing that is “erroneously accepted by the clerk” is “not
properly filed.” Id. at 9. Therefore, the clerk’s view of the
petition is not dispositive. Illinois asks us to compare
this case to Powell v. Davis, 415 F.3d 722, 726-27 (7th Cir.
2005), but Powell involved our deference to a state
supreme court’s determination of whether a petition
was properly filed, not deference to the court’s admin-
istrative personnel. A clerk is not the expositor of
Illinois’s rules, but the administrator of those rules.
Illinois also argues that there is no proof in the record
that the petition was mailed on June 7, just proof that
Simms signed and had the petition notarized on that date.
This argument can also be disregarded. If we accept the
district court’s conclusion that the petition was only one
day late, then any petition properly filed before July 1
would allow Simms to avoid the AEDPA time bar.
Additionally, Illinois claims that Simms was actually
28 days late in filing his federal petition because it
was not mailed from the jail but from a different zip
code. Since the petition was not sent from jail, it was not
entitled to the mailbox rule established by Rule 3(d) of the
Rules Governing Section 2254 Cases in the United States
District Courts, which provides for filing via the institu-
tion’s internal mailing system on or before the last day
for filing. Since, Illinois argues, the petition was filed
from outside the prison, it therefore must be considered
filed on January 3, 2007 when it was received by the
district court. See United States v. Craig, 368 F.3d 738, 740-
41 (7th Cir. 2004).
Illinois did not raise this issue below and therefore it is
forfeited. AEDPA’s statute of limitations is not a juris-
No. 07-2999 9
dictional bar to the court’s power, see Day v. McDonough,
547 U.S. 198, 205 (2006), although a district court could
raise the issue sua sponte if it caught a calculation error. Id.
at 210. Here, however, the argument relies on actual
physical evidence (the postmarked letter) not in the
record presented to the district court; we have no ability
to gauge the argument’s merits.
So there is but one question—whether Illinois law
considered Simms’s petition properly filed, even if the
clerk didn’t. We note that Simms’s argument that the
clerk was required to accept the petition is unavailing;
an improperly filed petition does not toll the statute
even if it is in the state court’s hands—that is what Pace
teaches us. And this is the real problem for Simms—even
if the clerk did accept the petition on June 7, it was im-
properly filed for purposes of AEDPA if it did not
comply with “the applicable laws and rules governing
filings.” Artuz, 531 U.S. at 8.
Despite Simms’s protests, the Illinois statute on which
Simms relies does not conflict with the Randolph County
court’s filing requirements. Simms argues that relevant
Illinois law, 735 ILCS 5/5-105(e), would only require the
clerk to hang onto the petition, file it, and “[a]t most . . .
require the clerk to contact the inmate and seek the re-
quired information.” Pet. Br. at 21. But, regardless of
whether the statute commands the clerk in a situation
like Simms’s to file the petition and then ask for the
required trust fund information, or whether the statute
allows the clerk to return the petition without filing it
and then file it when the proper trust fund information
10 No. 07-2999
is included, Simms’s petition was not properly filed,
for purposes of AEDPA, until it complied with “the
applicable laws and rules governing filings.” In either
scenario, therefore, the petition was not properly filed
until the trust fund information was included.
Furthermore, the statute that Simms relies on is easily
harmonized with the Randolph County Circuit Court
rules. The statute requires the clerk to “accept and file
any complaint, appearance, or other paper presented by
the applicant if accompanied by an application to sue
or defend in forma pauperis, and those papers shall be
considered filed on the date the application is pre-
sented.” 735 ILCS 5/5-105(e). The statute requires that the
application to sue “be in writing and supported by the
affidavit of the applicant.” Id. 5/5-105(c). The “contents
of the affidavit shall be established by Supreme Court
Rule.” Id.
Randolph County Circuit Court requires that in all
civil cases brought by poor persons (that is, indigents
seeking to prosecute an action without paying filing
fees), “the petition for leave to sue or defend as a poor
person shall be accompanied by a copy of the inmate’s
trust fund ledger indicating all deposits and with-
drawals made to the inmate’s trust fund account for the
six months immediately preceding the submission of
the petition.” Randolph County Cir. Ct. Admin. Order
No. 90-7. Given that Illinois law specifically delegates
the authority to establish “the contents” of the in forma
pauperis affidavit to the state supreme court and that the
state supreme court in turn delegates rule-making author-
No. 07-2999 11
ity to the circuit courts, and that Simms doesn’t chal-
lenge that this rule was validly enacted (at least as a
procedural matter), we find it well within the Randolph
County Circuit Court’s purview under Illinois law to
require that all petitions include a copy of the trust fund
ledger. Given that the local rule the clerk relied on to
reject the petition did not conflict with state law and that
the petition was indisputably deficient (in that it did not
meet the in forma pauperis requirements), it was not
properly filed until July 1, 2005. Accordingly, the AEDPA
limitations period was not tolled between June 7 and
that date.
II. Was the Petition for Rehearing Properly Filed?
Simms also seeks to toll the AEDPA limitations period
for the period during which his petition for rehearing was
pending at the Illinois Supreme Court. Of course, his
petition was never really pending; it was returned three
weeks later by the clerk’s office, which informed Simms
that it was “unable to file” the petition. Remember that
Simms needs only one day of tolling to save his case; if
we toll the period for the three weeks the clerk had the
petition, his federal habeas corpus claim is timely.
Remember also that we explained above that the clerk’s
acceptance of a petition is not sufficient to render the
petition properly filed. To prevail, Simms must succeed
where he failed regarding his initial Illinois habeas
petition discussed above; he must show that the clerk of
the Illinois Supreme Court erred when she returned
his petition. Both parties assume that the clerk was
12 No. 07-2999
unable to file the petition because it was mislabeled a
“petition for rehearing.” (The clerk’s actual letter to
Simms is more ambiguous, but since neither party
teased out an alternative ground for rejection of the
petition from the letter, neither will we).
Simms argues that the clerk misinterpreted Illinois law
which, Simms claims, allows for petitions for rehearing
after the denial of a petition for leave to appeal. Simms
argues that the denial of the petition for leave to appeal
(PLA) is a judgment and as such, is a proper subject for a
petition for rehearing. See Illinois Supreme Court Rule
367(a) (“A petition for rehearing may be filed within 21
days after the filing of the judgment . . . .”). The respondent
disagrees.
In a case like Simms’s where there is no appeal as of
right to the Illinois Supreme Court, leave to appeal to
that court is entrusted to the “sound judicial discretion” of
the court. Illinois Supreme Court Rule 315(a). Because
of this discretion, the Illinois Supreme Court has refused
to invoke res judicata based on its previous denial of a
PLA at an earlier stage in the proceeding. “For res judicata
to apply, there must have been a final judgment on the
merits of the case. Denials of petitions for leave to
appeal are not decisions on the merits.” In re Leona W.,
888 N.E.2d 72, 81 (Ill. 2008); see also People v. Ortiz, 752
N.E.2d 410, 424 (Ill. 2001) (“It is well settled that our
denials of leave to appeal are not decisions on the merits
of the case. They carry no connotation of approval or
disapproval of the appellate court action, and signify only
that four members of this court, for reasons satisfactory
No. 07-2999 13
to them, have not voted to grant leave.” (quotation omit-
ted)).
Illinois law is, therefore, clear that the denial of the PLA
is not a final judgment. And, accordingly, a petition for
rehearing is not a proper vehicle to challenge the denial
of a PLA. The fact that, as Simms points out, we have
mistakenly assumed, in dicta, that a petition for
rehearing is the proper vehicle to challenge the denial of
a PLA, see Jones v. Hulick, 449 F.3d 784, 789 (7th Cir.
2006); Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002),
does not alter our responsibility to interpret the law of
Illinois as the Illinois courts have.
As the clerk noted when it rejected Simms’s petition for
rehearing, a motion for reconsideration is available to a
petitioner whose PLA was denied. See, e.g., People v.
Thivel, 916 N.E.2d 545 (Ill. 2009). Simms filed no such
petition here, and we have repeatedly held that in
Illinois, the time period during which a petition for re-
consideration can be filed after the denial of a petition for
leave to appeal is not tolled for purposes of AEDPA. See
Jones, 449 F.3d at 789; Wilson, 302 F.3d at 747-48. At
least one Illinois court of appeals has also made the
same error of nomenclature that we made in Jones and
Wilson, see Butts v. City of Peoria, 504 N.E.2d 544, 545 (Ill.
App. Ct. 1987), but Simms does not argue that Illinois
courts ordinarily treat the two separate motions
identically and that he was prejudiced by the clerk’s
decision to choose not to in his case. Instead, he rests his
claim on the fact that the denial of a PLA is a judgment. As
noted above, it is not, and the Illinois statute is clear—
14 No. 07-2999
rehearing is only available when there has been a judg-
ment. Therefore, a petition for rehearing was an
improper filing after the denial of Simms’s leave to
appeal. Accordingly, AEDPA’s limitations period was
not tolled by the filing.
III. Should the Limitations Period have been Equitably
Tolled?
“Equitable tolling is rarely granted.” Tucker v. Kingston,
538 F.3d 732, 734 (7th Cir. 2008). “Equitable tolling is
granted sparingly only when extraordinary circum-
stances far beyond the litigant’s control prevented timely
filing.” Wilson, 302 F.3d at 749 (internal quotations and
alterations omitted); see also Tucker, 538 F.3d at 734 (noting
the paucity of cases where we found it warranted). We
review the decision to deny equitable tolling for an
abuse of discretion. Tucker, 538 F.3d at 735.
In deciding that the AEDPA limitations period should
be equitably tolled, the district court must determine
that the petitioner has pursued his rights diligently and
extraordinary circumstances beyond his control stood
in the way of the timely filing of his petition. Pace, 544
U.S. at 418. The district court found that Simms failed to
act diligently in pursuing his federal rights, because he
waited nearly a year from the withdrawal of his
previous state court petition to begin his final attempts
at state court review.
The district court’s reasoning is sound. Simms’s last
two cracks at habeas relief in Illinois were fraught with
No. 07-2999 15
difficulties—the misfiled in forma pauperis petition cost
him three weeks and the misfiled petition for rehearing
cost him another three. But, given that he waited almost
a year to file the claim, his later errors were magnified
by his initial delay. See Pace, 544 U.S. at 419 (“Had peti-
tioner advanced his claims within a reasonable time of
their availability, he would not now be facing any time
problem. . . .”). Despite the fact that Simms missed the
deadline by one day, there was no extraordinary
reason requiring the grant of equitable tolling. See United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)
(declining to apply equitable tolling when petitioner
missed a deadline by one day due to the death of the
attorney’s father several weeks before the deadline).
IV. Conclusion
Accordingly, we A FFIRM the decision of the district court.
C UDAHY, Circuit Judge, concurring. I concur in the
judgment.
2-19-10 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3004102/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2010*
Decided February 17, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 09-2936
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 95 CR 508 - 6
JOHNNY JACKSON,
Defendant-Appellant. Harry D. Leinenweber,
Judge.
ORDER
Johnny Jackson, a high-level member of the Gangster Disciples, was convicted of
drug crimes in 2000 and sentenced to a total of 100 years in prison. In this appeal he
challenges the denial of his motion under 18 U.S.C. § 3582(c)(2) for a reduced sentence
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 09-2936 Page 2
based on a retroactive amendment that lowered the base offense level for most crimes
involving crack cocaine.
In Jackson’s presentence investigation report, the probation officer estimated that the
Gangster Disciples had been selling approximately 4.5 kilograms of crack a day. The
probation officer added that Jackson’s high-ranking position made him accountable for the
distribution of “at least” 1.5 kilograms of crack cocaine. At the time, this was enough to
trigger the highest base offense level of 38. U.S.S.G. § 2D1.1(c)(2) (2000). The district court
adopted the factual findings in the presentence report and calculated a guidelines range of
life imprisonment.
After the Sentencing Commission amended § 2D1.1 in 2007 to lower the offense
levels for most crimes involving crack, the base offense level for 1.5 kilograms of crack
dropped from 38 to 36. Compare U.S.S.G. § 2D1.1(c)(2) (2000) with id. § 2D1.1(c)(2) (2008).
But the base offense level for offenses involving 4.5 kilograms of crack stayed at 38.
In evaluating Jackson’s motion to reduce his sentence, the district court noted that
the presentence report “outlined a wide-ranging drug conspiracy involving much more
than 4.5 kilograms of crack cocaine,” and that Jackson had been accountable for the scope of
the operation. Accordingly, because Jackson still was responsible for at least 4.5 kilograms
of crack, the district court concluded that the amendment did not change Jackson’s offense
level or lower his guidelines range, and so a reduction in sentence was not authorized. See
18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a).
Jackson argues that the district court could not hold him responsible for 4.5
kilograms of crack after saying at sentencing only that the quantity was at least 1.5
kilograms. But the district court was not precluded from subsequently finding that his
offense involved 4.5 kilograms of crack. We rejected this same contention in United States v.
Woods, 581 F.3d 531 (7th Cir. 2009), and concluded that “a finding that the defendants were
responsible for at least 4.5 kilograms is not inconsistent with the conclusion of the original
sentencing court that the defendants were responsible for amounts in excess of 1.5
kilograms.” Id. at 539. A district court can make new findings when addressing a motion to
reduce a sentence when there is ample evidence on the record to support the new finding
and that finding does not conflict with the district court’s previous conclusion. Id. at 538-39.
That is exactly what happened here.
AFFIRMED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1619456/ | 762 F. Supp. 147 (1991)
Gary SCOTT, Plaintiff,
v.
COMMUNICATIONS SERVICES, INC., and Metromedia Company, Defendants.
Civ.A. No. H-90-2502.
United States District Court, S.D. Texas, Houston Division.
April 5, 1991.
*148 Charles E. Johanson, Austin, Tex., for plaintiff.
Philip P. Sudan, Jr., Houston, Tex., for defendants.
OPINION ON REMAND
HUGHES, District Judge.
After the corporate plaintiff-counterdefendant sued non-diverse defendants in state court, the defendants counterclaimed. Then the corporate plaintiff-counterdefendant merged into an out-of-state corporation, effectively moving it to a different state. After becoming diverse, the corporate plaintiff-counterdefendant dismissed its claims and removed the counterclaim to federal court, on the apparent diversity jurisdiction. Despite the after-acquired diversity, removal was improper because the corporate plaintiff-counterdefendant was not properly characterized as a defendant for purposes of removal, the parties were not diverse when the suit was commenced in state court, and the removal was not timely.
1. Background.
Metromedia Long Distance (MLD) sued Gary Scott, Lyn Hawthorne, and two other defendants in the 2nd 9th District Court of Texas, Montgomery County in October 1989 (XX-XX-XXXXX), seeking a declaration that MLD owes no duty of indemnification to Scott or Hawthorne for the judgment against them in Hughes, et al. v. Noble in the 150th District Court of Texas, Bexar County (84-CI-02090). All parties in the Montgomery County action were Texans. On December 12, Scott filed counterclaims against MLD and Metromedia Company, a partnership with no Texas partners, for breach of contract, breach of fiduciary duties, fraud, rescission of a 1983 stock sale, and wrongful discharge. MLD then amended its petition, dropping the other two defendants.
The state court granted Scott's motion to transfer the case to Bexar County on June 25, 1990, but before the order was signed, MLD merged into Communications Services, Inc. (CSI), a Delaware corporation with its principal place of business in New York, on July 2. On July 23, CSI voluntarily *149 dismissed its claims against Scott and Hawthorne and filed an identical suit in the United States District Court for the Western District of Texas. At this point, all that survived in the 2nd 9th District Court were Scott's counterclaims against CSI and Metromedia Company, and the parties were diverse. CSI removed the counterclaims to this court on August 6, on diversity.
Scott has moved to remand the case. There are no facts in dispute. The parties were not diverse when MLD (now CSI) originally sued Scott and Hawthorne in state court; the case could not have been filed in federal court. MLD merged into CSI after MLD commenced the suit. After the merger, the plaintiffs and defendants were diverse. CSI removed the case within 30 days of MLD's merger into it, but not within 30 days of the filing of MLD's counterclaim.
The court will remand the case because it lacks subject matter jurisdiction over the claims, for three reasons: 1) CSI is not a defendant within the removal statutes, so it may not remove the case, nor did it become a defendant for purposes of removal by becoming a counterdefendant in Scott's counterclaim; 2) diversity did not exist when MLD commenced suit in state court, and the existence of diversity at removal does not cure that jurisdictional defect; and 3) CSI did not remove the case within 30 days of the filing of Scott's counterclaim.
2. Removal is a statutory right.
28 U.S.C. § 1441(a) creates the right of removal:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
(emphasis added).
CSI claims that it may now remove the case under 28 U.S.C. § 1446(b) because it became removable when MLD merged with CSI and effectively changed its states of citizenship from Texas to Delaware and New York:
"If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable...."
The party seeking to remove the case has the burden of establishing its right to remove, and a close question is to be resolved in favor of remand. Pullman Co. v. Jenkins, 305 U.S. 534, 540, 59 S. Ct. 347, 350, 83 L. Ed. 334 (1939); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936); Laughlin v. Prudential Insurance Co., 882 F.2d 187, 190 (5th Cir. 1989); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988); Higgins v. Pittsburgh-Des Moines Co., 635 F. Supp. 1182, 1184 (S.D.Tex.1986); Ezon v. Cornwall Equities, Ltd., 540 F. Supp. 885, 889 (S.D.Tex. 1982); Albonetti v. GAF Corporation Chemical Group, 520 F. Supp. 825, 827 (S.D.Tex.1981). CSI has failed to establish that this court has subject matter jurisdiction over the case.
3. CSI is not a defendant for removal.
Federal law, not state law, determines who is the plaintiff and who is the defendant when a party seeks to remove a case. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104, 61 S. Ct. 868, 870, 85 L. Ed. 1214 (1941); Chicago R.I. & P.R. Co. v. Stude, 346 U.S. 574, 780, 74 S. Ct. 290, 294, 98 L. Ed. 317 (1954); In re Southwestern Bell Telephone Co., 535 F.2d 859, 861 (5th Cir.1976); Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.1974); Estate of Spragins v. Citizens National Bank of Evansville, 563 F. Supp. 424, 426 (N.D.Miss.1983); Carlton v. Withers, 609 F. Supp. 146, 148-49 (M.D.La.1985).
Only the defendant can remove a case. From 1875 to 1887, the removal statute *150 allowed any party to remove to federal court, but since the 1887 amendments to the removal statute that narrowed the right of removal, the right of removal has belonged solely to the defendant. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 871-72, 85 L. Ed. 1214 (1941); West v. Aurora City, 6 Wall. 139, 18 L. Ed. 819 (1867); American International Underwriters, Inc. v. Continental Ins. Co., 843 F.2d 1253 (9th Cir.1988); Estate of Spragins v. Citizens National Bank of Evansville, 563 F. Supp. 424, 425 (N.D.Miss.1983); Carlton v. Withers, 609 F. Supp. 146, 148-49 (M.D.La.1985); Coogan v. DeBoer Properties Corp., 354 F. Supp. 1058, 1059 (S.D.Tex.1973); Smith v. St. Luke's Hospital, 480 F. Supp. 58, 60 (D.S.D.1979); Moore's Federal Practice 2d ¶ 0.157[7], n. 8, pp. 263-64.
The purpose of restricting the right of removal to the defendant is to restrict removal to the party who had no choice in selection of the forum, generally the defendant. The fact that MLD had no choice in its selection of forum at commencement, because it was not diverse from Scott, et al., does not militate in favor of it being given the opportunity to exercise choice once the choice becomes available.
CSI does not become a defendant under § 1441(a) when a defendant files a counterclaim against it. A few old cases hold that the plaintiff can remove a case as counterdefendant, because when the defendant files the counterclaim, the plaintiff becomes a defendant for the counterclaim. Chambers v. Skelly Oil Co., 87 F.2d 853, 854 (10th Cir.1937) (diversity); Bankers Security Corp. v. Insurance Equities Corp., 85 F.2d 856, 857 (3rd Cir.1936) (diversity); O'Neill Brothers, Inc. v. Crowley, 24 F. Supp. 705, 708 (W.D. S.C.1938) (diversity); City National Bank v. Wichita Royalty Co., 18 F. Supp. 609, 610 (N.D.Tex. 1937), rev'd on other grounds, 95 F.2d 671 (5th Cir.1938), aff'd on other grounds, 306 U.S. 103, 59 S. Ct. 420, 83 L. Ed. 515 (1939) (federal question); American Fruit Growers v. LaRoche, 39 F.2d 243, 244 (E.D.S.C. 1928).
No court since 1938, however, has held that the plaintiff may remove a case as counterdefendant, and the well-established rule is that the plaintiff, who chose the forum, is bound by that choice, and may not remove the case. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09, 61 S. Ct. 868, 872, 85 L. Ed. 1214 (1941); Tindle v. Ledbetter, 627 F. Supp. 406, 407 (M.D.La.1986); Estate of Spragins v. Citizens National Bank of Evansville, 563 F. Supp. 424, 426 (N.D.Miss.1983); Southland Corp. v. Estridge, 456 F. Supp. 1296, 1298, 1300-01 (C.D.Cal.1978); Ford Motor Credit Co. v. Liles, 399 F. Supp. 1282, 1284 (W.D.Okl.1975); Coditron Corp. v. AFA Protective Systems, Inc., 392 F. Supp. 158, 161 (S.D.N.Y.1975); Mohawk Rubber Co. v. Terrell, 13 F.2d 266, 266 (W.D.Mo.1926). CSI's removal was improper because it chose, as MLD, to sue Scott and Hawthorne in state court, and Scott's counterclaim did not transform it into a defendant for removal.
4. The parties were not diverse at commencement.
Even if CSI was able to remove the case as the plaintfiff-counterdefendant, it could do so only if it and the defendants were diverse both when MLD commenced the suit in state court and when CSI removed the case to this court. Kinney v. Columbia Savings & Loan Association, 191 U.S. 78, 81, 24 S. Ct. 30, 31-32, 48 L. Ed. 103 (1903); Stevens v. Nichols, 130 U.S. 230, 231, 9 S. Ct. 518, 519, 32 L. Ed. 914 (1889); Roecker v. U.S., 379 F.2d 400, 407 (5th Cir.1967) (Where the parties are not diverse at commencement, the plaintiff cannot create diversity jurisdiction by moving after filing the suit.); Kanzelberger v. Kanzelberger, 782 F.2d 774, 776 (7th Cir.1986); Tyler v. Bonaparte's Fried Chicken, 610 F. Supp. 58, 60 (M.D.La.1985) (change of defendant's citizenship after filing of removal petition had no effect on creation of diversity and did not make action removable); Aynesworth v. Beech Aircraft Corp., 604 F. Supp. 630, 633 (W.D.Tex.1985); Crier v. Zimmer, Inc., 565 F. Supp. 1000, 1001 (E.D.La.1983); Kilpatrick v. Arrow Co., 425 F. Supp. 1378, 1380 (W.D.La.1977) ("[A] *151 defendant cannot render a suit removable merely by moving to another State after plaintiff files his original complaint in the State Court.")
The change of a party's citizenship after commencement does not affect this court's diversity jurisdiction, which is determined by the citizenship of the parties at commencement of the suit, not by their citizenship at removal. Although diversity is to be determined at removal by the pleadings, the pleadings must demonstrate that the parties were diverse at the time of commencement in state court, even if the original petition failed to demonstrate that the parties were diverse. If the parties are not diverse at commencement, and one of them moves, creating diversity, the case cannot be removed because diversity did not exist at commencement. That is analogous to what MLD did here, by merging with CSI, and, in effect, moving to CSI's states of incorporation and principal place of business. If MLD, instead of merging with CSI, had reincorporated itself in New Jersey and moved to New York, the result would be the same. Because it was not diverse with Scott and Hawthorne when it sued them in state court, it cannot remove the case now that it is diverse.
This rule on removal is an extension of that applied in cases that are commenced originally in federal court. Diversity must exist when the plaintiff files the case. Seafoam, Inc. v. Barrier Systems, Inc., 830 F.2d 62, 66 (5th Cir.1987); Aetna Casualty & Surety Co. v. Hillman, 796 F.2d 770, 776 (5th Cir.1986); Oliney v. Gardner, 771 F.2d 856, 858-59 (5th Cir.1985); Carlton v. Baww, Inc., 751 F.2d 781, 785 (5th Cir. 1985); Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.1974); Gaines v. Dixie Carriers, Inc., 434 F.2d 52, 54 (5th Cir.1970); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.1966).
A narrow exception to the requirement of diversity at both commencement and removal exists. A suit against both a non-diverse defendant and a diverse defendant may become removable by the diverse defendant if the plaintiff voluntarily dismisses the action against the non-diverse defendant with prejudice, because there is no risk that diversity will later be destroyed. Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92, 98, 18 S. Ct. 264, 266, 42 L. Ed. 673 (1988); Phillips v. Unijax, 625 F.2d 54, 56 (5th Cir.1980); Higgins v. Pittsburgh-Des Moines Co., 635 F. Supp. 1182, 1184 (S.D.Tex.1986); Aynesworth v. Beech Aircraft Corp., 604 F. Supp. 630, 633 (W.D.Tex.1985).
This exception does not apply if the non-diverse defendant is involuntarily dismissed by the court, because, although complete diversity will exist temporarily, the district court's diversity jurisdiction may ultimately be destroyed if the plaintiff appeals the dismissal and wins. Lathrop, Shea & Henwood Co. v. Interior Construction and Improvement Co., 215 U.S. 246, 251, 30 S. Ct. 76, 78, 54 L. Ed. 177 (1909); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir.1967).
The exception does not apply here for two reasons. First, CSI did not dismiss a non-diverse defendant, leaving only diverse defendants; it obtained diversity by effectively moving MLD from Texas to New Jersey and New York. Second, the exception allows only the defendant to remove, and, as discussed here, CSI is not a defendant under the removal statute.
A second exception to the general removal rule allows the defendant to remove the case when the court realigns the parties to arrange them according to their sides in the dispute. If the parties are not diverse at filing, but are diverse after realignment by the court, removal is proper. Conversely, if the parties are diverse as named in the original complaint, but after the court realigns the parties they are not diverse, removal is not allowed. City of Indianapolis v. Chase National Bank, 314 U.S. 63, 69, 62 S. Ct. 15, 17, 86 L. Ed. 47 (1941); Zurn Industries, Inc. v. Acton Construction Co., Inc., 847 F.2d 234, 236 (5th Cir.1988). The exception does not apply here.
The few cases that hold that the parties must be diverse when the case is removed but not when it is commenced in state court *152 are wrong. Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir.1985) (diversity should be determined from the face of the complaint); Comtec, Inc. v. National Technical Schools, 711 F. Supp. 522, 523 (D.Ariz.1989) (cites Miller); Swanigan v. Amadeo Rossi, S.A., 617 F. Supp. 66, 67 (E.D.Mich.1985).
5. Timeliness.
CSI's removal was not timely. It might have been proper if it had occurred within 30 days of the filing of Scott's counterclaim, as required by 28 U.S.C. § 1446(b). CSI could not remove at that time, though, because MLD had not yet merged into it, so it and Scott and Hawthorne were not yet diverse. Timeliness of the removal would not have made it proper, however, because, as discussed above, CSI lacked the standing to remove.
CSI objects to Scott's motion to remand, arguing that he waived his right to seek remand by not filing it within 30 days of CSI's removal, as required by 28 U.S.C. § 1447(c):
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a) [28 U.S.C. § 1446(a)]. If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded....
CSI's objection is not well taken, because Scott's motion to remand challenged not CSI's removal procedure, but the district court's subject matter jurisdiction. Because the court lacks subject matter jurisdiction over the claims, a motion to remand is proper at any time before final judgment. Scott's motion to remand is timely and proper.
6. Conclusion.
Scott's counterclaim will be remanded because CSI lacks standing, as the plaintiff-counterdefendant, to remove the case, diversity did not exist when MLD filed suit in state court, and CSI did not remove the case within 30 days of the filing of Scott's counterclaim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1879371/ | 416 B.R. 9 (2009)
Luis RIVERA-SIACA, et al., Appellant,
v.
DCC OPERATING, INC., Appellee.
Civil No. 08-2396 (FAB).
United States District Court, D. Puerto Rico.
August 5, 2009.
*12 Luis A. Melendez-Albizu, Luis A. Melendez-Albizu Law Office, San Juan, PR, for Appellant.
Carmen D. Conde-Torres, C. Conde & Associates, San Juan, PR, for Appellee.
OPINION AND ORDER[1]
BESOSA, District Judge.
Before the Court is DCC Operating, Inc.'s ("appellee") motion to dismiss the pending appeal because of appellants' failure to comply with Bankruptcy Rule 8006. (Docket No. 2) Luis Rivera-Siaca, Enery Ortiz-Rivera, and the Conjugal Partnership Rivera-Ortiz ("appellants") opposed the motion and moved to supplement the record on appeal. (Docket No. 7) For the reasons discussed below, the Court hereby GRANTS appellee's motion to dismiss and DENIES appellants' motion to supplement the record.
FACTUAL AND PROCEDURAL HISTORY
On November 20, 2008, the Bankruptcy Court denied appellants' Rule 60(b) motion. (Case No. 03-0090; Docket No. 355) That same day appellants submitted a Notice of Appeal, electing to appeal to the district court pursuant to 28 U.S.C. § 158, Rule 8001(e) of the Federal Rules of Bankruptcy Procedure, and Local Rule 77.2(d). (Docket Nos. 7-2 & 7-3) On December 1, 2008, appellants successfully moved for an extension of time until December 11 to submit the requisite designation of the record *13 and statement of issues on appeal. (Docket Nos. 7-4 & 7-5) On December 16, 2008, appellants moved for a second extension of time to file, which the Bankruptcy Court denied. (Docket Nos. 7-7 & 7-10) The Bankruptcy Court ordered its Clerk to file a certificate with this Court that appellants never filed the appropriate documents. (Docket No. 7-10)
On December 18, 2008, this Court received notice of the appeal from the Bankruptcy Court. (Docket No. 1) On December 22, appellants filed their Designation of the Record on Appeal and Statement of the Issues on Appeal with the Bankruptcy Court. (Docket No. 7-12) On the same day, appellants filed an Urgent Motion for Reconsideration asking the Bankruptcy Court to accept their designation of the record and transmit it to this Court as the record on appeal. (Docket No. 7-13) Appellants claimed the second extension should have been permitted because there was excusable neglect. (Id.) The tendered excuse was that appellants' counsel was busy with another case pending in this district after having problems with the Court's electronic filing system, CM/ECF. (Id.)
Also on December 22, 2008, appellee filed a motion to dismiss alleging appellant's failure to comply with Bankruptcy Rule 8006. (Docket No. 2) The Bankruptcy Court chose not to rule on Appellants' Urgent Motion for Reconsideration pending this Court's decision on appellee's Motion to Dismiss. (Docket No. 7-14) Appellants filed their opposition to appellee's motion to dismiss on January 13, 2009, and further moved the Court to supplement the record to include their Designation of the Record on Appeal and Statement of the Issues on Appeal. (Docket No. 7) Appellants also moved for leave to file their opposition in excess of twenty-five pages on January 14, 2009, which the Court granted. (Docket Nos. 8 & 26) Appellee submitted a reply to appellants' opposition on January 23, 2009. (Docket No. 13)
DISCUSSION
I. The Bankruptcy Court's Discretion
A. Certification of the Record on Appeal
Appellants mistakenly allege that the Bankruptcy Court exceeded its authority by certifying that no record was filed. (See Docket No. 7, p. 13) Within ten days after an appellant files a timely notice of appeal from an order of a bankruptcy judge, "the appellant shall file with the clerk and serve on the appellee a designation of the items to be included in the record on appeal and a statement of the issues to be presented." Fed.R.Bankr.P. 8006. Upon an appellant's failure to file a designation of the record timely, "the Clerk shall forward to the proper appellate court a certification that no designation of the record was filed." L.R.Bankr.P. 8006-1. Although the notice of appeal deprives the trial court (in this case the Bankruptcy Court) of jurisdiction "to adjudicate any matters related to the appeal," United States v. Distasio, 820 F.2d 20, 23 (1st Cir.1987), the trial court may act "in aid of appeal," Spound v. Mohasco Indus., 534 F.2d 404, 411 (1st Cir.1976), by correcting errors and omissions in the record. See Fed.R.App.P. 10(e); Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1013 (6th Cir.2003) ("The distinction... is between actions that merely aid the appellate process and actions that alter the case on appeal" (quoting Allan Ides, The Authority of a Federal District Court to Proceed After a Notice of Appeal Has Been Filed, 143 F.R.D. 307, 323 (1992))).
The Bankruptcy Court acted within its discretion under the local bankruptcy *14 rules when it certified that no record was timely designated. See L.R.Bankr.P. 8006-1(a). Appellants filed their second motion for an extension of time five days after the first extended deadline had passed. They failed timely to designate the record on appeal and the statement of issues to be presented. Contrary to appellants' allegations, the Bankruptcy Court was not altering or spoiling the case on appeal. This case is distinguishable from Hogg v. United States where the First Circuit Court of Appeals vacated an order of the trial court striking the notice of appeal. Hogg v. United States, 411 F.2d 578, 580 (6th Cir.1969). The court of appeals explained that the trial court had exceeded its limited jurisdiction to act in aid of the appeal. Id. In this case, unlike in Hogg, the Bankruptcy Court made no changes or alternations to the case on appeal; it did not strike, add to, or increase the scope of the record. The trial court was merely following its local rules, of which appellants should have been aware. Thus, the Bankruptcy Court acted appropriately within its discretion when it certified that no designation of the record was filed.
B. Denial of the Second Motion for an Extension of Time
Appellants also challenge the Bankruptcy Court's decision to deny the second motion for an extension of time to file, alleging sufficient excusable neglect. (See Docket No. 7, p. 20) The trial court has discretion to permit a late designation of both the record on appeal and the statement of issues when a motion is filed showing that the failure to meet the deadline was a result of excusable neglect. See F.R.Bankr.P. 9006(b)(1); see, e.g., Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 383 n. 2, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993). Trial courts have "significant discretionary authority to set and enforce filing deadlines in accordance with the Federal Rules of [Bankruptcy] Procedure, even when those deadlines are difficult for lawyers to meet." Perez-Cordero v. Wal-Mart P.R., 440 F.3d 531, 533 (1st Cir.2006); see Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 583-84 (1st Cir. 1994). Denials of extensions, reviewed for an abuse of discretion, are rarely overturned; the appellant must show that the circumstances made the denial unfair. See Perez-Cordero, 440 F.3d at 534; Mendez v. Banco Popular of P.R., 900 F.2d 4, 6-7 (1st Cir.1990).
It is not clear if the Bankruptcy Court evaluated appellants' second motion for an extension under the excusable neglect standard because it made no explicit findings when it denied appellants' second motion for an extension. (Docket No. 7-10) Rule 9006(b)(1), however, gives the Bankruptcy Court discretion; it does not require admission of tardily filed documents. See Fed.R.Bankr.P. 9006(b)(1) ("The court for cause shown may at any time within its discretion ... permit the act to be done where failure to act was the result of excusable neglect.") (emphasis added). This Court will review appellants' second motion for an extension of time for excusable neglect in the interest of determining if the denial was unfair.
II. Excusable Neglect
Determining whether or not to allow a late filing because of excusable neglect is an equitable inquiry. Pioneer Inv. Servs. Co., 507 U.S. at 389, 113 S. Ct. 1489. The Court must examine the relevant circumstances including "the danger of prejudice to the debtor, the length of delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant *15 acted in good faith." Id. at 395. Upon examination of these factors, the Court finds no excusable neglect.
A. Prejudice
Prejudice to the opposing party weighs against a finding of excusable neglect. See Pioneer Inv. Servs. Co., 507 U.S. at 395, 113 S. Ct. 1489. Prejudice may be the lengthening itself of already protracted proceedings. In re Callahan, 211 B.R. 131, 132 (N.D.N.Y.1997); see also Envisionet Computer Servs. v. ECS Funding, LLC, 288 B.R. 163, 166 (D.Me.2002) (finding a twenty-six day delay prejudicial to opposing party). In this case, there is no evidence of prejudice other than the protracted proceedings themselves. The case has been ongoing for seven years. (See Docket No. 2, p. 1) The further delay created by appellants in this case is at least minimally prejudicial to appellee.
B. Length of Delay
The delay of eleven days from the first extended deadline to when appellants actually filed the designation of the record and statement of issues has an unfavorable impact on judicial proceedings. "The nature of a bankruptcy proceeding motivates the reason for having a short time frame for filing ... the court has an obligation to protect the interests of the potentially many interested parties by distributing as quickly as possible what often are economically fragile assets." In re Advance Cellular Sys., Inc., 262 B.R. 10, 14 (D.P.R. 2001). The designation of the record and statement of issues give the reviewing court an understanding of the contested topics. Id. The Court has a strong interest in reviewing these documents in a timely manner and is therefore negatively affected by a party's failure to comply with deadlines. See Envisionet Computer Servs., 288 B.R. at 166 (finding a twenty-six day delay detrimental to "the efficient administration of justice"). Although the delay resulting from appellants' failure to file on time is not excessive, the nature of bankruptcy proceedings and the purpose of the documents in question indicate that even a short delay has an unfavorable impact on judicial proceedings. Accordingly, the Court finds that the delay weighs against excusable neglect.
C. Reason for Delay
The excuse given for late filing is the most important factor in the analysis of excusable neglect; a party must have a satisfactory explanation. E.g., Graphic Commc'ns Int'l Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5-6 (1st Cir.2001) (finding no excusable neglect where reason for delay was lacking despite one day delay, no prejudice, and no bad faith). Appellants' excuse is that their counsel was busy working on Advance Export v. Medline Industries, Inc., No. 06-1527, another case pending in this district. Appellants allege that filing problems with the CM/ECF system on December 10 and 11 in Advance Export made it impossible to file the designation of the record of this case on time. (See Docket No. 7, p. 9) The reason given for the additional delay from December 11 to the 16 was that counsel was busy preparing the Proposed Pretrial Order in Advance Export. (See Docket No. 7, p. 9)
Appellants' explanation for the untimely designation is insufficient because an attorney's occupation with other matters does not constitute excusable neglect. See Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 5 (1st Cir.2002) ("The fact that an attorney has other fish to fry is not an acceptable reason for disregarding a court order."); Freiria Trading Co. v. Maizoro S.A., 187 F.R.D. 47, 49 (D.P.R.1999) ("[B]eing involved in another case even a *16 high profile case will not excuse an attorney... in a different case."). While there are cases holding that CM/ECF problems excuse late filing, see Raines v. Chenoweth, No. 1:03CV1289-JDT-TAB, 2005 WL 1115804, at *3 (S.D.Ind. Mar.30, 2005), the computer problems of which appellants complain only occurred in Advance Export. There were no technical problems in this case. Further, appellants' counsel delayed an additional five days while working on the Advance Export pretrial order. "Most attorneys are busy most of the time and they must organize their work so as to be able to meet the time requirements of matters they are handling or suffer the consequences." Pinero Schroeder v. Fed. Nat'l Mortgage Ass'n, 574 F.2d 1117, 1118 (1st Cir.1978). Appellants' counsel knew of the deadline in this case and should have prepared adequately in advance or requested another extension within that deadline. Instead, counsel chose to wait until five days after the expiration of the deadline to bother filing for another extension. That sort of neglect is not excusable.
D. Good Faith
Appellee alleges that appellants acted in bad faith. The Court, however, finds little evidence supporting the accusation. Although bad faith weighs against a finding of excusable neglect, it is not a prerequisite to the conclusion that a party's neglect was inexcusable. See Hosp. del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir.2001). It is apparent that appellants have been less than diligent with regard to court rules and deadlines. For example, appellants filed an opposition to the present motion in excess of the twenty-five page limit in this Court's local rules, L.R. 7.1, only to file a motion for leave to do so a day later. (See Docket Nos. 7 & 8). "[b]ecause there is no indication that this attitude was intentional, [however,] the [C]ourt will not consider this factor, [good faith], to favor either side." Ayala Rios v. Rios Hernandez, 189 F.R.D. 38, 40 (D.P.R.1999).
E. In Sum
Considering all of the circumstances, the Court finds no excusable neglect for appellants' failure timely to file the required documents or to request an extension. Even if all of the other factors weighed in favor of appellants, there would still not be excusable neglect without a valid excuse. See Dimmitt v. Ockenfels, 407 F.3d 21, 25 (1st Cir.2005). The Bankruptcy Court did not abuse its discretion when it denied appellants' second motion for an extension because there was no excusable neglect and accordingly, no unfairness to appellants under the circumstances.
III. Appropriateness of Dismissal
Appellants challenge the sanction of dismissal as being too severe under the circumstances. (Docket No. 7) Failure to designate the record and provide a statement of issues timely "is ground only for such action as the district court ... deems appropriate, which may include dismissal of the appeal." F.R.Bankr.P. 8001(a); see L.R.Bankr.P. 1001-1(f). Although the district court has discretion to dismiss an appeal upon a violation of Bankruptcy Rule 8006, dismissal is a harsh sanction and should only be used when a party's misconduct is flagrant and imprudent. See Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir.2006); Colokathis v. Wentworth-Douglass Hosp., 693 F.2d 7, 9 (1st Cir.1982). The Court should consider "the severity of the violation, the legitimacy of the party's excuse, repetition of violations, the deliberateness vel non of the misconduct ... and the adequacy of lesser sanctions." Benitez-Garcia, 468 F.3d at 5 (quoting Robson v. Hallenbeck, 81 F.3d 1, 2-3 (1st Cir.1996)). Other sanctions *17 may consist of a warning, a reprimand, an imposition of costs and attorneys' fees, or a temporary suspension of counsel. Colokathis, 693 F.2d at 10 (citing Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir.1977)). The Court's power of dismissal is used to "prevent undue delays in the disposition of pending cases, docket congestion, and the possibility of harassment of a defendant." Id. at 9. "The bottom line policy consideration is whether the sanction of dismissal matches the conduct at issue." In re Fitzsimmons, 920 F.2d 1468, 1474-75 (9th Cir.1989).
The conduct of appellants in this case warrants dismissal of the appeal. As discussed above, appellants have failed more than once to comply with court rules and deadlines. Additionally, the alleged justification for the violation of Bankruptcy Rule 8006 is not a valid excuse. Appellants' counsel made a deliberate decision that working on Advance Export was more important than meeting the deadlines in this case. Counsel could have filed a brief motion for a second extension of time within the deadline yet chose to spend the effort working on another case. Under these circumstances, dismissal serves to prevent disregard for court rules and deadlines, possible harassment to both the Court and appellee, and further delay after seven years of litigation. Dismissal is the sanction that "matches the conduct at issue." In re Fitzsimmons, 920 F.2d at 1474-75.
Furthermore, this Court needs an adequate record to decide the appeal, which appellants failed to produce timely. "When an appellant fails to provide a record of evidence material to the point appellant wishes to raise ... the court in its discretion may ... dismiss the appeal if the absence of a full record thwarts intelligent and reasoned review." Wilson v. Wells Fargo Bank, N.A., 402 B.R. 66, 69-70 (1st Cir. BAP 2009) (quoting Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 963 (1st Cir.1995)). In Payeur, the First Circuit Court of Appeals dismissed the appeal because the appellant fully failed to designate the record on appeal, leaving the court unable to evaluate the basis for the bankruptcy judge's findings. In re Payeur, 22 B.R. 516, 519 (1st Cir. BAP 1982). Like the appellant in Payeur, appellants in this case have failed to meet their responsibility of presenting an adequate record on appeal in order for this Court to review the basis for the Bankruptcy Court's decision. As in Payeur, dismissal of the appeal is appropriate under the circumstances.
IV. Motion to Supplement the Record on Appeal
Appellants move to supplement the record with its tardily proffered Designation of the Record on Appeal and Statement of the Issues on Appeal. (Docket No. 7) Bankruptcy appeals to this Court are "taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts. ..." 28 U.S.C. § 158(c)(2). Accordingly, Rule 10(e) of the Federal Rules of Appellate Procedure applies. See In re Food Fair, Inc., 15 B.R. 569, 571 (Bankr. S.D.N.Y.1981); In re Saco Local Dev. Corp., 13 B.R. 226, 228 (Bankr.D.Me.1981). Rule 10(e) gives the appellate court discretion to supplement the record on appeal. Fed.R.App.P. 10(e) ("If anything material to either party is omitted ... by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded ... by the court of appeals."). The Court has found no error in the omission of the record in this case. Further, even if it were to have found error, it is within its discretion whether or not to supplement the *18 record on appeal. In light of the circumstances discussed above, the Court DENIES appellants' motion to supplement the record on appeal.
CONCLUSION
For the foregoing reasons, the Court GRANTS appellee's motion to dismiss the appeal for failure to comply with Bankruptcy Rule 8006 and DENIES appellants' motion to supplement the record on appeal. Judgment shall be entered accordingly.
IT IS SO ORDERED.
NOTES
[1] Whitney L. Meier, a second-year student at Georgetown University Law Center, assisted in the preparation of this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/102758/ | 300 U.S. 109 (1937)
MIDLAND REALTY CO.
v.
KANSAS CITY POWER & LIGHT CO.
No. 217.
Supreme Court of United States.
Argued December 17, 1936.
Decided February 1, 1937.
APPEAL FROM THE SUPREME COURT OF MISSOURI.
*110 Mr. Elliott H. Jones, with whom Mr. William C. Scarritt was on the brief, for appellant.
Messrs. Ludwick Graves and Irvin Fane, with whom Mr. William Chamberlain was on the brief, for appellee.
MR. JUSTICE BUTLER delivered the opinion of the Court.
The questions for decision are whether, as construed in this case by the highest court of Missouri, the statutes of that State regulating public utilities violate Art. I, § 10 of the Constitution of the United States, declaring that "No State shall. . . pass any . . . Law impairing the Obligation of Contracts .. .," or § 1 of the Fourteenth Amendment declaring "nor shall any State deprive any person of life, liberty, or property, without due process of law."
Appellee was plaintiff and appellant defendant below. They made a contract whereby the former for specified rates agreed to furnish the latter steam for heating its buildings in Kansas City for a term of five years ending *111 August 31, 1913, with option to defendant to extend the contract for an additional five years. March 17, 1913, the state public service commission law was enacted.[1] May 29, following, defendant exercised its option and so extended the term of the contract to August 31, 1918.
June 28, 1917, plaintiff in pursuance of the statute[2] filed with the commission a schedule of steam heating rates to become effective August 1, 1917; they were higher than those specified in the contract. The city and numerous users other than defendant objected; the commission, without attempting to apportion operating expenses and values between plaintiff's heating and electric service, found that the rates filed were unreasonably high and prescribed, as just and reasonable, rates lower than those filed but higher than the contract rates and made them effective March 1, 1918. 5 Mo. P.S.C. 664. Plaintiff filed a new schedule in accordance with the commission's order.
June 11, 1918, it complained that these rates were confiscatory. The commission, after apportioning operating expenses and values between the electrical and steam services, found the rates "inadequate, unjust and unreasonably low," that during none of the time was "heating revenue sufficient to even meet the fuel expense alone," and that "heretofore the steam heating business has been carried at a loss, and this loss has been borne either by the light and power consumers or by the company." Thereupon, it ordered new and higher rates effective December 1, 1919. 8 Mo. P.S.C. 223, 292, 296. The findings and order of the commission were approved by the supreme court in State ex rel. Case v. Public Service Comm'n, 298 Mo. 303; 249 S.W. 955.
For steam furnished defendant after August 1, 1917, plaintiff regularly sent bills based on the rates it had *112 filed with the commission. Claiming the contract rates still to be applicable, defendant paid amounts calculated in accordance with them. Plaintiff gave defendant credit for the payments it made. After expiration of the period covered by the contract as extended, plaintiff brought this suit. For steam furnished after August 1, 1917, and before March 1, 1918, it sought to recover on the basis of the charges specified in the first schedule filed. For steam furnished after March 1, 1918, to the end of the contract term, it sought to recover on the basis of charges of the schedule promulgated by the commission. The trial court held plaintiff not entitled to recover on its claim in respect of the first period but gave judgment in its favor in respect of the other one. Both parties appealed. The Missouri Supreme court ruled the contract rates not applicable, held plaintiff entitled to recover on its claim in respect of both periods and directed that it have judgment for the sums calculated on the basis of the schedules filed with the commission.
Defendant's contention is not that the State lacked power by appropriate action to establish and enforce just and reasonable rates but that, as against the constitutional provisions invoked, the action taken under the public service commission law was not sufficient to abrogate the contract rates.
Specifically, its complaints are that the court construed the statute (1) to make (a) mere filing of plaintiff's schedule and (b) the later promulgation of a schedule by the commission effective to abrogate the contract rates and (2) to require that, although the contract was in due time fully performed and defendant prior to the commencement of the suit had paid plaintiff the contract rates, it was bound to pay additional amounts calculated on the basis of the higher rates specified in plaintiff's published schedules. It is upon these grounds that defendant *113 contends that the state law violates the quoted clauses of the Constitution.
These questions are to be decided upon the construction that the state supreme court put upon the statute. And that law is to be taken as if it declared that rates made in accordance with its provisions shall supersede all existing contract rates.[3] There is here involved no question as to the validity of the rates prior to the passage of the statute. Without expression of opinion, we assume that then the parties were bound by the contract. But the State has power to annul and supersede rates previously established by contract between utilities and their customers.[4] It has power to require service at nondiscriminatory rates, to prohibit service at rates too low to yield the cost rightly attributable to it,[5] and to require utilities to publish their rates and to adhere to them.[6] Under the challenged statute, defendant had opportunity to support the contract rates and to test before the commission and in the state supreme court *114 as others did the validity of the filed schedule.[7] It failed to do so. And it here insists that the contracts could not be abrogated "without a proper hearing, finding and order of the commission with respect thereto." It does not, and reasonably it could not, contend that immediate exertion by the legislature of the State's power to prescribe and enforce reasonable and nondiscriminatory rates depends upon or is conditioned by specific adjudication in respect of existing contract rates.[8] It is clear that, as against those specified in the contract here involved, the rates first filed by plaintiff and those promulgated by the commission in accordance with the statute have the same force and effect as if directly prescribed by the legislature.[9]
Lacking in merit is defendant's contention that the statute violates the clauses of the Constitution invoked because held by the court to require that, although before this suit the service had been furnished and paid for in accordance with the contract, defendant was bound to pay more. As shown above, the rates specified in the schedules were held applicable from and after their respective effective dates. Defendant was not injured by plaintiff's failure to withhold service or more promptly to sue for the difference between its lawful charges and the amount paid. It cannot derive any advantage from refusal to pay.[10]
Plainly, enforcement of the rates in accordance with the statute did not violate either the contract clause of *115 the Constitution or the due process clause of the Fourteenth Amendment.
Affirmed.
NOTES
[1] Missouri R.S., 1929, c. 33, §§ 5121 et seq.
[2] Missouri R.S., 1929, §§ 5190 (12), 5209.
[3] Fulton v. Public Service Comm'n, 275 Mo. 67; 204 S.W. 386; Sedalia v. Public Service Comm'n, 275 Mo. 201, 209; 204 S.W. 497; Kansas City Bolt & Nut Co. v. Kansas City Light & Power Co., 275 Mo. 529; 204 S.W. 1074; affirmed 252 U.S. 571. State ex rel. Washington University v. Public Service Comm'n, 308 Mo. 328, 342; 272 S.W. 971; State ex rel. Public Service Comm'n v. Latshaw, 325 Mo. 909, 917-918; 30 S.W. (2d) 105; State ex rel. Kirkwood v. Public Service Comm'n, 330 Mo. 507, 521; 50 S.W. (2d) 114.
[4] Union Dry Goods Co. v. Georgia Public Service Corp., 248 U.S. 372. Producers Transportation Co. v. Railroad Commission, 251 U.S. 228, 232. Kansas City Bolt & Nut Co. v. Kansas City Light & Power Co., 252 U.S. 571. Sutter Butte Canal Co. v. Railroad Commission, 279 U.S. 125, 137-138.
[5] Public Service Comm'n v. Utilities Co., 289 U.S. 130, 135-136. Cf. Northern Pacific Ry. Co. v. North Dakota, 236 U.S. 585, 604.
[6] Armour Packing Co. v. United States, 209 U.S. 56, 81. Louisville & Nashville R. Co. v. Maxwell, 237 U.S. 94, 97.
[7] Missouri R.S., 1929, §§ 5191, 5232-5237. See State ex rel. Washington University v. Public Service Comm'n, 208 Mo. 328; 272 S.W. 971.
[8] Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467.
[9] Public Service Comm'n v. Pavilion Natural Gas Co., 232 N.Y. 146, 150-151; 133 N.E. 427; North Hempstead v. Public Service Corp., 231 N.Y. 447, 450; 132 N.E. 144.
[10] Louisville & Nashville R. Co. v. Central Iron Co., 265 U.S. 59, 65. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2254243/ | 114 F. Supp. 665 (1953)
HEUER et al.
v.
PARKHILL.
Civ. A. No. 323.
United States District Court W. D. Arkansas, Harrison Division.
September 22, 1953.
Pryor, Pryor & Dobbs, Fort Smith, Ark., Kegan & Kipnis, Chicago, Ill., for plaintiffs.
Willis & Walker, Harrison, Ark., for defendant.
JOHN E. MILLER, District Judge.
On August 13, 1953, the Court disposed of a motion for summary judgment filed by the plaintiffs in this case. In disposing of the motion, the Court prepared and filed an opinion, and that opinion outlines the proceedings had in the case prior to and including the motion for summary judgment. See, Heuer v. Basin Park Hotel and Resort, D.C.Ark., 114 F. Supp. 604. Thus it is unnecessary to again outline the proceedings had in the case prior to the trial on the merits. Suffice it to say that disposition of the said motion left only for consideration the following questions raised by plaintiffs' complaint and defendant's counterclaim:
Were the defendant or the plaintiffs guilty of unfair competition by reason of having copied, in substance, advertising matter originated or used by the opposing party, and if so, is the party so offended against entitled to an injunction and/or damages for such unfair competition?
On September 16, 1953, the case was tried to the Court, without a jury. The plaintiffs introduced the ore tenus testimony of J. Stuart Rotchford; the depositions of Simon H. Kahn, Robert S. Huffnagle, Bert J. Kennedy, Ruby Abbas, and Ralph J. Rice; and exhibits 1 to 29, inclusive. The defendant introduced the ore tenus testimony of Joe M. Parkhill and Neal Walters; the depositions of Juanita Mooneyham, Joseph G. Ronga, Janette Williams and Loraine Hosse; and exhibits 1 to 15, inclusive. The parties also introduced joint exhibit 9, and agreed to the introduction of the deposition of Joe M. Parkhill for all purposes. The Court requested briefs from the respective parties, and these have now been received. And now, having considered the ore tenus testimony of the witnesses, the depositions, the exhibits, the pleadings and the briefs, the Court makes and files herein its findings of fact and conclusions of law, separately stated.
*666 Findings of Fact
1.
The plaintiffs, Wanita Heuer, Anna Rotchford and Mildred C. Grinnell, are each citizens and residents of the State of Illinois, and are co-partners doing business as Happiness Tours. The defendant, Joe M. Parkhill, is a citizen and resident of the State of Arkansas, and is the sole owner of the Basin Park Hotel and Resort which is located in Eureka Springs, Arkansas. The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.
2.
Plaintiffs have been in the travel agency business since 1938. They maintain two offices in Chicago and one in New York City, and employ thirty-two persons. They sell thirty to thirty-five different "package tours" (i. e., all-expense paid vacations) through 1,200 agencies located in the United States and other parts of the world. Plaintiffs advertise their tours by newspaper, radio, television and travel folders. In 1949 plaintiffs initiated and since that time have operated a tour to Eureka Springs and the Crescent Hotel. The success of plaintiffs' Eureka Springs tour is demonstrated by the fact that during the years 1949, 1950, 1951 and 1952 they printed a total of 130,314 travel folders, and had a total of 3,263 passengers who paid a total of $275,011 for said tours. Plaintiffs made a net profit of approximately $6,000 per year from the Eureka Springs tour.
When selling package tours, the plaintiffs or their agents collect the fees for said tours and then remit to the hotels their share of the said fees. Thus it is necessary that plaintiffs maintain a good credit rating, and the plaintiffs do, in fact, have such a rating. Also, due to the amount of referral business it is necessary that plaintiffs conduct successful tours and fulfill the advertising promises they make, and the plaintiffs have so conducted their tours.
3.
In 1945, the defendant, Joe M. Parkhill, purchased the Basin Park Hotel for $45,000 with money advanced him by his uncle. The defendant literally gave a one-half interest in the hotel to Dwight O. Nichols for the reason that they had gone to school together, and had worked together in Chicago, and defendant wanted Nichols to take care of the bookwork for the hotel. They operated the hotel as a partnership until February 18, 1946, at which time Nichols conveyed to defendant his interest in the hotel property and the partnership was dissolved. Since that time defendant has operated the hotel as sole owner.
Defendant in 1945 began selling package tours to his hotel and advertised said tours by means of travel folders, newspapers, and moving pictures. During the years 1945 to 1952 defendant distributed approximately 300,000 travel folders advertising his tour, and, at one time, had approximately 800 agencies selling his tour. Plaintiff's net earnings from the hotel for the years 1947 to 1951 were as follows:
1947 $19,021
1948 21,492
1949 8,071
1950 4,222
1951 1,364
Defendant has paid off the original mortgage on the hotel but has executed new mortgages totaling $43,000 for improvements on the hotel.
The Crescent Hotel began operating in 1946 or 1947, and until that time there was no other hotel in Eureka Springs which was comparable to the defendant's hotel, the Basin Park, in size or quality.
In the past a large part of defendant's business was the result of his package tours, but following the advent of competition by Happiness Tours, the Crescent Hotel and others the defendant's tourist business diminished rapidly.
4.
Defendant began distributing travel folders in 1945, and defendant's exhibits 1 to 9 are copies of his folders. The first folders were originated by the defendant, working in conjunction with Neal Walters, an experienced copy writer and advertising executive, and the pictures used in the folders were taken by Dwight O. Nichols and defendant *667 while they were partners in the operation of the Basin Park Hotel.
Defendant's first folder, defendant's exhibit 1, which was published in 1945 and 1946, contained pictures of the Basin Park Hotel, Lake Lucerne, and St. Elizabeth's Church, as well as three other scenic views. The folder is printed in black and white with ordinary type, and the copy, in substance, is concerned with the things that may be done and seen on a tour to Eureka Springs. A portion of the folder is devoted to items which Robert Ripley had featured in his "Believe it or Not" column. The front page of the folder is entitled "8 Day All Expense Vacation, Heart of the Ozark Mountains, Eureka Springs, Arkansas, The Most Unique City in America," and below the title is a picture of an untitled bridge scene.
Defendant's 1947 folder, defendant's exhibit 2, is devoted mostly to copy, with a number of small cartoons interspersed therein. Some of the cartoons are of "hillbilly" characters and some are not. The folder is printed in green type on a white background, and the copy is devoted to things to do and see in the Ozarks. The front page of the folder is entitled "For More Fun and Better Health, Plan Your Vacation at The Famous Basin Park Hotel and Bath House in Eureka Springs, Arkansas, Miracle Spa of the Ozarks," and below the title is a picture of the Basin Park Hotel.
Defendant's exhibit 3, which is another 1947-1948 folder, is printed in black and white, and except for the change of two or three pictures, is substantially the same as defendant's 1945-1946 folder. This 1947-1948 folder is entitled "It's Springtime in The Ozarks All Year `Round, Eureka Springs, Arkansas, All Expense Vacation, The Most Unique City in America."
Defendant's exhibit 4 is another 1947-1948 folder and is substantially the same as defendant's exhibits 1 and 3 above referred to. This folder is entitled "The Friendliest Hotel in the Ozarks, Basin Park Hotel and Bath House, Eureka Springs, Arkansas, Miracle Spa of the Ozarks, Ideal for Honeymooners."
Defendant's exhibit 5 is a small, special Labor Day folder which is in black and white and is all copy except for two hillbilly cartoons.
Defendant's exhibit 6 is another 1947-1948 folder, printed in brown and white, and is composed almost entirely of pictures with very little copy. The copy in this folder does not mention Robert Ripley. The folder is entitled "Miracle Spa of the Ozarks, the Basin Park Hotel in Eureka Springs, Arkansas, More Fun and Better Health," and over the title is a picture of the Basin Park Hotel.
Defendant's exhibit 7 is the 1948-1949 folder, which is a multi-colored folder. Aside from the coloring, however, this folder is much like defendant's exhibit 6, except for the front page. The front page is printed in red, brown, yellow, green and blue and is entitled "Howdy! Welcome to The Highest Point in the Ozarks, Eureka Springs, Arkansas, Miracle Spa of the Ozarks, The Basin Park Hotel and Resort ....More Fun....Better Health....," and a picture of the Basin Park Hotel is centered in the page.
Defendant's exhibit 8 is the 1950, 1951 and 1952 folder, which is printed in green, black and white. The general layout of this folder is different from defendant's prior folders, although the copy and pictures are much the same. This folder is entitled "Welcome to the Highest Point in The Ozarks, Miracle Spa of The Ozarks, Basin Park Hotel and Resort, Eureka Springs, Arkansas....More Fun....Better Health....," and a picture or drawing of the Basin Park Hotel is centered in the page.
All of defendant's folders except exhibits 5, 8 and 9 are printed on glazed or slick paper and borders of photographs are square or rectangular.
5.
When plaintiffs began operating the tour to Eureka Springs in 1949, Mr. J. Stuart Rotchford, manager of Happiness Tours, contacted Ralph J. Rice, a commercial artist, and Mr. Frank Ingle, a copy writer, and they originated plaintiffs' 1949 folder. Mr. Rice did all of the art work and Mr. *668 Ingle did the copy work. Photographs used in the folder were furnished by Mr. Dwight O. Nichols who was, at that time, connected with the Crescent Hotel.
Plaintiffs' exhibit 2 is their 1949 folder. Said folder is printed in black and yellow, and cartoons of hillbilly characters are interspersed through the folder. The headings throughout the folder are wavy and appear to have been drawn rather than printed. Likewise, borders of photographs used in the folder are curved rather than straight. The folder is entitled "Smack in The Heart of The Ozarks at Eureka Springs Arkansas, The Famous Castle in The Air, Happiness Tours." Centered in the page is a picture or drawing of the Crescent Hotel and at the bottom of the page is a cartoon of a hillbilly with a gun and a jug. (This cartoon was originated and drawn by Ralph J. Rice.)
Plaintiffs' 1950, 1951, 1952 and 1953 folders are substantially the same as their 1949 folder. The general layout is the same, and about the only noticeable changes are the few pictures which have been replaced with others. The front pages of all of plaintiffs' folders are identical except that the words "Happiness Tours" were moved from the bottom of the page to the top of the page in the 1951 folder. All of plaintiffs' folders are printed on unglazed paper, and about the only easily discernible difference in the folders is that each year the color is changed.
6.
Some of the photographs taken by Dwight O. Nichols, while he was a partner of the defendant, have been used by the plaintiffs in their folders. The circumstances surrounding the taking and use of the pictures are as follows:
The defendant and Nichols owned their own cameras. Using film purchased by the Basin Park Hotel, Nichols took pictures of various scenes and activities around Eureka Springs. The defendant, himself, posed for some of the action pictures. All the pictures used by defendant in his folders were taken by Nichols and defendant before their partnership was terminated. Even subsequent to dissolution of the partnership, the defendant and Nichols shared a dark room and either of them could and did use the negatives to print pictures for various purposes. At the time Nichols conveyed his interest in the hotel to the defendant and terminated the partnership nothing was said about the pictures or negatives, and since that time Nichols has used the pictures as he wished, although defendant still has possession of some or all of the negatives. The defendant himself has distributed the pictures to the Chamber of Commerce, Frisco Railroad, and others, both for the promotion of the Basin Park Hotel and for the promotion of the City of Eureka Springs. Others who have obtained possession of and are using said pictures include the Ozark Travel Association, Berry Tours, Ozark Playgrounds Association, Trailways Magazine, Diamond Mid-Continent Petroleum Corporation, and Lion Oil Company. It is probable that most or all of these pictures were obtained from Dwight O. Nichols, but none of them are works of art.
The defendant, until this lawsuit, had never complained of the use of these pictures by anyone.
7.
As heretofore stated, prior to the tourist season of 1945, the defendant had been able to obtain and hold the services of several hundred agencies for the sale of his tour to Eureka Springs and the Basin Park Hotel, and it seems that prior to 1949 the defendant's tour was the only one that was extensively advertised or vigorously pushed in the area. The defendant was offering only the one tour, that is the tour to Eureka Springs, and therefore the agencies selling the tour had only one tour of defendant's to offer to the public. And, when the plaintiffs inaugurated their tour to Eureka Springs and the Crescent Hotel, most, if not all, of the agencies refused to receive the folders of the defendant, principally because the defendant was offering only the one tour to the one area, while the plaintiffs were offering the agencies many tours for sale to various other areas as well as to Eureka Springs, and the action taken by the agencies in refusing to promote the defendant's tour was largely responsible *669 for the decline in the number of tourists who bought the tour arranged by defendant. When the defendant was confronted with that situation he realized that he would lose the tourist business, and therefore conceived the idea of having printed the folder, joint exhibit 9.
On May 25, 1951, the following letter was written by one of defendant's employees at his request:
"Mr. B. F. Huffnagle
"Chicago, Ill.
"Dear Mr. Huffnagle
"I would like to know how much ten thousand folders like the one enclosed with only changes being a picture of Basin Park Hotel on front cover and inside folder where ever Crescent Hotel is mentioned put Basin Park, would cost me.
"Please let me know if you could get this folder out for me.
"Sincerely
"Joe M. Parkhill"
Since the folder enclosed by Parkhill was one of plaintiffs' folders, Mr. Huffnagle consulted Mr. J. Stuart Rotchford, manager of Happiness Tours, and Mr. Rotchford wrote defendant on May 31, 1951, informing him that permission could not be given to him to copy plaintiffs' folder. Then defendant contacted Mr. Simon H. Kahn, who printed 10,300 copies of joint exhibit 9 for him, said copies being delivered to defendant on October 8, 1951.
This folder, joint exhibit 9, is practically the same as plaintiffs' 1951 folder, plaintiffs' exhibit 4, the only apparent changes being the picture of the Basin Park Hotel on the front page and the words "Basin Park Hotel" being substituted for the words "Crescent Hotel" in the copy. Defendant only distributed a few of these folders, and has held the remainder of the folders pending disposition of this case.
8.
The plaintiffs' folders of its Eureka Springs tour have remained substantially the same from 1949 to the present time. These folders have a distinctive general layout and over-all appearance, and have become identified with a tour to Eureka Springs sponsored by the plaintiffs, Happiness Tours.
9.
The general lay out and style of the defendant's folders have been changed from time to time as heretofore set forth in Finding of Fact No. 4, and for that reason it is doubtful whether defendant's folders have become identified with defendant's tour to the Basin Park Hotel. That is, because of the dissimilarity between the folders from time to time, a prospective purchaser who read, for example, defendant's exhibit 2, and at a later date read defendant's exhibit 7, would not connect the latter folder with the Basin Park Hotel since the said folder is so different in layout and over-all appearance from the earlier folder.
But, regardless of whether defendant's folders had become identified with defendant's tour to Eureka Springs and the Basin Park Hotel, the plaintiffs' folders are in no wise copies of defendant's folders. The defendant complains of the use by plaintiffs in their folders of certain descriptive words of the Ozarks area. However, all of the words and phrases used by the plaintiffs as well as the defendant are common, generic or descriptive words and phrases of the area. And, a comparison of all of defendant's folders with all of plaintiffs' folders convinces the Court that plaintiffs' folders were not in substance or form copies of the composite folders of the defendant, and would not confuse a prospective tourist in his selection of a tour to Eureka Springs. It is true that some of the pictures used in plaintiffs' folders had been taken by defendant and Dwight O. Nichols and had been used by defendant in his folders, but the general layout and over-all appearance of plaintiffs' folders are so different from defendant's folders that no prospective tourist would glance at or read plaintiffs' folders and confuse plaintiffs' tour to Eureka Springs and the Crescent Hotel with defendant's tour to Eureka Springs and the Basin Park Hotel.
*670 10.
It appears to the Court that plaintiffs' folders, because of their unique layout and appearance, have more tourist appeal than do defendant's folders. Evidently the defendant was of the same opinion, because when he observed that plaintiffs' folders contained some pictures that had been taken by him and Dwight O. Nichols, he concluded that he had the right to appropriate the form and substance of plaintiffs' folders.
The folder defendant had printed in the latter part of 1951, joint exhibit 9, is the same in general layout and appearance as plaintiffs' folders, and would likely cause confusion in the minds of prospective purchasers and enable defendant to pass off his tour as a tour arranged and sponsored by the plaintiffs.
11.
Since defendant has distributed less than 100 of the folders, joint exhibit 9, plaintiffs have not been damaged thus far by defendant's activities, but distribution of the remainder of the folders would cause serious damage to plaintiffs' business.
Conclusions of Law
1.
The Court has jurisdiction of the parties to and the subject matter of this cause of action.
2.
The following quotations illustrate the law relating to the copying of advertising matter by competitors:
"The general rule is that the appropriation of another's advertising matter or method is not of itself unfair competition, although it may become such where it induces or may induce the public to suppose that in dealing with the appropriator they are dealing with or obtaining the product or services of the originator * * *". 52 Am.Jur., Trademarks, Tradenames, and Trade Practices, Section 116, Page 595.
"Unfair competition begins where imitation results in the deception of the customers of the party complaining." International Heating Co. v. Oliver Oil Gas Burner & Machine Co., 8 Cir., 288 F. 708, 711, 30 A.L.R. 611.
"At 26 R.C.L. 875 it is stated: `Unfair competition ordinarily consists in the simulation by one person for the purpose of deceiving the public, of the name, symbols, or devices employed by a business rival, or the substitution of the goods or wares of one person for those of another, thus falsely inducing the purchase of his wares and thereby obtaining for himself the benefits properly belonging to his competitor.'" Esskay Art Galleries v. Gibbs, 205 Ark. 1157, 1162, 172 S.W.2d 924, 926.
See also, Judson Dunaway Corporation v. Hygienic Products Co., 1 Cir., 178 F.2d 461, 466; King Pharr Canning Operations, Inc., v. Pharr Canning Co., Inc., D.C.Ark., 85 F. Supp. 150, 153.
In view of the law above stated, it is clear that the defendant, in simulating plaintiffs' folders and attempting to pass off his tour as a tour conducted by plaintiffs, was guilty of unfair competition.
3.
Plaintiffs are entitled to an injunction against the printing or use by the defendant of folders substantially and confusingly similar to plaintiffs' folders, and particularly against the printing or use by the defendant of copies of joint exhibit 9.
The copies of joint exhibit 9 now in the possession of the defendant should be delivered to the Clerk of the Court for destruction.
4.
Plaintiffs have not established and are not entitled to recover damages for the said unfair competition on the part of the defendant.
5.
Plaintiffs were not guilty of unfair competition and defendant's counterclaim against plaintiffs should be dismissed.
6.
In view of the particular facts and circumstances in this case, the plaintiffs and the defendant should be required to pay their own costs.
A judgment in accordance with the above should be entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585552/ | 815 F.Supp. 1077 (1993)
Virginia KAUFFMAN, Plaintiff,
v.
KENT STATE UNIVERSITY, et. al., Defendants.
No. 5:91 CV 938.
United States District Court, N.D. Ohio, E.D.
February 17, 1993.
*1078 *1079 Edward L. Gilbert, Law Offices of Edward L. Gilbert, Akron, OH, for plaintiff.
Dennis R. Wilcox and Jack D. Maistros, Climaco, Climaco, Seminatore, Lefkowitz & Garofoli, Cleveland, OH, for defendants.
ORDER
SAM H. BELL, District Judge.
I. Introduction
This matter comes before the court on defendants' motion for summary judgment, Docket # 43. This civil rights case was commenced with the filing of a complaint on May 15, 1991. An amended complaint was filed on the 29th of July, 1991. The named defendants are Kent State University ("KSU"), a state university, and Chester Williams and Ann Metham, two employees of the University.[1] Plaintiff alleges that she was hired by the University in 1979 and was assigned a position in the Physical Plant Department of the institution. There, plaintiff claims that she was "forced to perform clerical duties in furtherance" of the personal, rather than official business of Mr. Williams. Plaintiff claims that when these duties began to interfere with plaintiff's official responsibilities, she complained, presumably to higher authorities. Plaintiff states that "as a result of said complaints, Chester Williams used his position and color of state law to deny plaintiff a promotion to Office Manager. Instead, Plaintiff hired a younger person with less skills, name Co-Defendant, Ann Metham." (Amended Complaint at ¶ 20). Plaintiff avers that Metham and Williams began a campaign to remove her from the Department and that she "was given poor evaluations commencing in March 1990." (Amended Complaint at ¶ 21) Plaintiff complains that the poor evaluations were given in retaliation for the complaints plaintiff had made in regards to defendants Metham and Williams. Finally,
Plaintiff states that the working conditions became so intolerable that she was forced to transfer from the unit to a separate facility, in the same department. Defendant Williams, however, maintained direct control over Plaintiff's salary and general day-to-day duties in a further effort to intimidate plaintiff.
(Amended Complaint at ¶ 24)
On the basis of these alleged facts, plaintiff brought six causes of action. The first cause of action, brought pursuant to Section 1983, claimed that defendant Williams deprived plaintiff of her due process and equal protection rights secured by the Fourteenth Amendment. The second claim alleges identical constitutional deprivations at the hands of Kent State and Williams. The third claim, premised upon KSU's and Williams's failure to consider plaintiff for the promotion position and failure to post and notify employees of the same, denied plaintiff her constitutional rights as alleged in the foregoing counts and, because these omissions were purportedly motivated by plaintiff's age, constituted a violation of the ADEA. In her fourth count, plaintiff avers that Ann Metham "gave Plaintiff unfair, improper and discriminatory job evaluation", purportedly in violation of Section 1983 and, because these acts were purportedly motivated by plaintiff's age, constituted *1080 a violation of the ADEA. In her fifth count, plaintiff claims that KSU has a policy of allowing its supervisors "broad discretion to discriminate", forcing plaintiff to transfer to a less preferable job. This, plaintiff claims, violations both Section 1983 and the ADEA. Plaintiff's sixth and final claim was brought pursuant to Ohio Rev.Code § 4112.02, Ohio's civil rights statute, and was based upon the all foregoing allegations.
The defendants moved for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On January 29, 1992, that motion was granted in part and denied in part. Kauffman v. Kent State Univ., No. 91-CV-938, slip op. (N.D.Ohio Jan. 29, 1992) (order granting partial dismissal) [hereinafter "dismissal order"]. As a result of that opinion:
Plaintiff's causes of action under 42 U.S.C. § 1983 and O.R.C. § 4112.02 are dismissed in their entirety. Thus, the court hereby dismisses Count One, Count Two and Count Six in full. We also dismiss those portions of Counts Three, Four, and Five which allege a violation of 42 U.S.C. § 1983. However, that portion of defendants' motion dealing with the ADEA is denied; thus, those portions of Counts Three, Four and Five which allege violations of the ADEA will remain in this cause.
(Dismissal Order at 41). Consequently, plaintiff's sole remaining claim is that KSU, Williams and Metham violated the Age Discrimination in Employment Act as alleged in counts three, four and five.
As noted above, defendants have moved for summary judgment on this claim. The defendants aver that the facts in evidence will establish the following:
1) That "[d]efendants Williams and Metham are not employers within the meaning of the ADEA and thus they are not subject to suit pursuant to the ADEA";
2) That plaintiff "cannot establish the necessary elements of a prima facie case of age discrimination under the ADEA"; and
3) If one assumes, "arguendo that Plaintiff can establish a prima facie case, Plaintiff has failed to rebut the Defendants' legitimate business reasons for their personnel decisions.
(Defendants' Motion for Summary Judgment, Docket # 43 at 5-6) [hereinafter "Defendants' Motion"]. The court shall address these contentions seriatim.
II. Standard of Review
In reviewing a motion for summary judgment, a court must consider the pleadings, related documents, evidence, and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). Rule 56 provides, in relevant part, as follows:
(c) ...
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
. . . . .
(e) ...
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Three Supreme Court cases have provided guidance as to the nature of the respective burdens allocated under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The ultimate burden lies with the non-moving party to show the existence of a genuine issue of material fact. "When the moving party has carried its burden under Rule 56(c), its opponent *1081 must do more than simply show that there is some metaphysical doubt as to the material facts ... In the language of the Rule, the non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.' Fed.Rule Civ. Proc. 56(e)." Matsushita, 475 U.S. at 586-587, 106 S.Ct. at 1355-56 (emphasis supplied). "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court in Anderson held that "the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff had had a full opportunity to conduct discovery." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15.
On the other hand, the moving party's burden under Rule 56 is lighter.
Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c) ... suggests the absence of such a requirement.
Celotex, supra, at 323, 106 S.Ct. at 2552-53 (emphasis supplied).
The Sixth Circuit Court of Appeals, in Street v. J.C. Bradford and Co., 886 F.2d 1472 (6th Cir.1989) recently reviewed court decisions and commentary regarding the impact of Anderson, Celotex, and Matsushita on summary judgment practice. The court concluded that a "new era" in summary judgment practice has opened in the court system as a result of these opinions.
Scholars and courts are in agreement that a "new era" in summary judgments dawned by virtue of the Court's opinions in these cases ... On the whole, these decisions reflect a salutary return to the original purpose of summary judgments. Over the years, decisions requiring denial of summary judgment if there was even a suggestion of an issue of fact and tended to emasculate summary judgment as an effective procedural device.
Street, supra, at 1476.
The court enunciated the following "new era" principles, among others: as on federal directed verdict motions, the "scintilla" rule applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion; the respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment"; the trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. Id. at 1479-1480 (footnotes and citations omitted).
III. Law and Analysis
A. "Employer" Liability under the ADEA
As noted above, the defendants' first grounds for summary judgment is that defendants Williams and Metham are not "employers" as that term is defined in the ADEA and are therefore not subject to liability thereunder. This argument has merit.
Section 623 of the ADEA establishes liability in the following manner:
It shall be unlawful for an employer
(1) to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.
29 U.S.C. § 623(a)(1) (emphasis added). Thus, liability turns upon a defendant's status as an "employer". The term "employer" is defined by the ADEA as follows:
*1082 The term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year
. . . . .
The term also means (1) any agent of such person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.
29 U.S.C. § 630(b) (emphasis added). As this section makes clear, States and their subdivisions are considered "employers" for the purposes of the ADEA. The defendants in question, however, are clearly neither States, nor subdivisions of a State. Rather, it is not disputed that defendants Williams and Metham are agents of an instrumentality of the State, persons conspicuously absent from Section 630(b)(2)'s definition. We must, therefore, look to the operation of Section 630(b)(1), which includes within the definition of "employer" the "agent of ... a person ... engaged in an industry affecting commerce who has twenty or more employees for each working day...." 29 U.S.C. § 630(b)(1). The defendants are clearly agents. Consequently, the question is whether they are agents of a "person". The term "person" means "one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized group of person." 29 U.S.C. § 630(a). States and their subdivisions are not included within this definition, and the instant plaintiff makes no argument to that effect. Clearly, then, the plain wording of the statute precludes a conclusion that defendants Williams and Metham are "employers" under the ADEA. Simply put, they are not "States" and are not "agents ... of a `person'" as that term is defined in the Act. Most courts which have considered this question, including one within this Circuit, have come to the same conclusion. See, e.g., Johns v. Kirby, No. C-2-86-1496 slip op., 1990 WL 484832, 1990 U.S.Dist. LEXIS 18689 (S.D.Ohio Nov. 7, 1990) (Holschuh, C.J.). See also Wanner v. State of Kansas, 766 F.Supp. 1005 (D.Kan.1991); Tranello v. Frey, 758 F.Supp. 841 (W.D.N.Y.1991), aff'd, 962 F.2d 244 (2d Cir.1991), cert. denied sub nom, County of Monroe v. Tranello, ___ U.S. ___, 113 S.Ct. 813, 121 L.Ed.2d 686 (1992); Sagarino v. Town of Danvers, 750 F.Supp. 51 (D.Mass.1990); Price v. County of Erie, 654 F.Supp. 1206 (W.D.N.Y.1987); Young v. Sedgwick County, 660 F.Supp. 918 (D.Kan. 1987); McCroan v. Bailey, 543 F.Supp. 1201 (S.D.Ga.1982).
In an effort to circumvent this conclusion, the plaintiff has not disputed that the defendants are excluded under the plain terms of the Act. Rather, she directs this court to two cases from outside this Circuit which "relied upon comparable Title VII provisions to conclude that agents of state agencies are "employers" within the meaning of the ADEA." (Plaintiffs' Memorandum in Opposition to Defendants' Motion for Summary Judgment, Docket # 45 at 5) [hereinafter "Plaintiff's Response"]. This court is not convinced. As cogently noted by a court considering this argument:
[T]o find no distinction between the Title VII and the ADEA definitions of employer simply because of the policy behind the statutes borders on judicial activism in its plainest sense. In enacting the ADEA, Congress explicitly excluded states and their political subdivisions from the definition of person, opting rather to include them as a separate and distinct liability of (1) agents of persons and (2) states and political subdivisions. Congress made no provision for agents of states and political subdivisions. It would have only required the insertion of the short phrase "and their agents" in 29 U.S.C. § 630(b)(2) to express Congress' intent to hold individuals such as these defendants liable for age discrimination. If ever the maxim expressio unius est exclusio alterius is applicable, it is this situation. This court cannot invalidate the express terms of a federal statute under the guise of applying a policy of liberal construction, regardless of the ultimate ends that would be furthered.
*1083 Wanner v. State of Kansas, 766 F.Supp. 1005, 1007 (D.Kan.1991) (citation omitted). The individual defendants in this case "are not `employers' within the meaning of the ADEA and are therefore not subject to personal liability under the Act." Johns v. Kirby, 1990 U.S.Dist. LEXIS 18689, *14 (S.D.Ohio 1990). With this established, we must now turn to the question of the University's liability.
B. Prima Facie Showing
As noted above, the defendant's second basis for summary judgment is the plaintiff's inability to establish a prima facie case. As recently noted by the Sixth Circuit:
The elements of a prima facie case of age discrimination require that the charging party demonstrate that (1) she was the member of the protected class, i.e., that she was between the ages of 40 to 65 years of age; (2) that she was subjected to adverse employment action; (3) that she was qualified for the particular position; and (4) that she was replaced by a person not a member of the protected class.
Gagne v. Northwestern National Insurance Co., 881 F.2d 309, 313 (6th Cir.1989). The defendants concede that plaintiff is a member of the protected class and that the person who benefited from the alleged discrimination, Ms. Metham, was not a member of that class. (Defendants' Motion at 14). Thus, with regards to the establishment of a prima facie case, we are concerned with the second and third elements, to wit: the subjection of plaintiff to adverse employment action, and her qualification for the position in question. Plaintiff's complaint indicates that she complains of the following adverse employment actions: 1) failure to consider plaintiff for the promotion position and failure to post and notify employees of the same, 2) unfair, improper and discriminatory job evaluations, and 3) the transfer to a less preferable job. In response to the defendants' motion, the plaintiff concedes that she "is unable to prove that Defendant Metham's evaluation constitutes an adverse employment action, and thus the Plaintiff is unable to establish her prima facie burden regarding Count Four of the Amended Complaint." (Plaintiff's Response at 11) Hence, we are concerned with plaintiff's transfer to a less desirable position and the defendants' failure to post and consider plaintiff for a promotion. The court shall address these employment actions vis-a-vis plaintiff's establishment of a prima facie case.
i. Transfer
In regards to plaintiff's transfer, the defendants argue that Ms. Kauffman cannot establish the second element of a prima facie case, subjection to an adverse employment action. In the instant case, plaintiff claims that an intra-departmental transfer constitutes adverse employment action because she has less work to keep her busy and has both a lessened opportunity for a promotion to the Office Manager position and a lessened opportunity to "fill[] in for said position" when the Office Manager is on leave. (See Kauffman Aff. at § 5-6). It is undisputed that plaintiff, after her transfer, enjoys the same title and compensation as she did prior to her reassignment.[2] (Kauffman Depo. at 112) Plaintiff also admitted at her deposition that she enjoys her current assignment:
Q. Do you enjoy where you are working now?
A. I do now, yes, uh-huh. I didn't have much choice but to go there.
Q. But you don't have a problem working there now?
MR. GILBERT: Well, objection. Go ahead and answer if you know.
THE WITNESS: I don't you know, I don't have an objection to where I'm working now, no, but I feel I was forced to be reassigned.
(Kauffman Depo. at 177) On the basis of this record, this court simply must conclude that there is no genuine issue that plaintiff's *1084 transfer was not an adverse employment action for the purposes of the ADEA.
As one court within this Circuit recently commented, "[t]he clear trend of authority is to require that a transfer with no change in wages or benefits amount to a `constructive discharge' to be actionable as an `adverse employment action'." Darnell v. Campbell County Fiscal Court, 731 F.Supp. 1309, 1313 (E.D.Ky.1990) (emphasis added), aff'd, 924 F.2d 1057 (6th Cir.1991). This conclusion, drawn from the well-reasoned opinions of the Seventh Circuit, is premised upon the supposition that:
[T]he ADEA is not intended to prevent employers from changing the job responsibilities of their 40-70 year old employees. Neither is the Act intended to give 40 to 70 year old employees the right to walk out and sue their employer because they dislike their changed job responsibilities. To establish a violation of the ADEA, therefore, a plaintiff must prove that she suffered a materially adverse change in the terms and conditions of her employment because of her employer's discriminatory conduct.
Spring v. Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir.1989) (citations and parentheticals omitted). By way of example, one case is particularly instructive.
In Addams v. City of Chicago, 1992 WL 348848, 1992 U.S.Dist. LEXIS 17542 (N.D.Ill. 1992), the plaintiff was employed as director of a municipal AIDS counselling service. In her complaint, she alleged that she was transferred and as a result of that transfer "lost her support staff, including a secretary, a staff assistant and data entry personnel." Id., 1992 WL 348848, at *1, 1992 U.S.Dist. LEXIS 17542 at *1. The plaintiff claims that the transfer constituted a de facto demotion although her job title, duties, responsibilities and compensation remained the same. The plaintiff claimed that her transfer was motivated by the age-based animus of her supervisor, a thirty two year old. The court granted the defendants' motion for dismissal pursuant to Rule 12(b)(6), finding that plaintiff had not made sufficient allegations in regards to one element of a prima facie case, subjection to an adverse employment action. Id., 1992 WL 348848, at *4, 1992 U.S.Dist. LEXIS 17542 at *8. The court, although acknowledging that plaintiff now had to "perform[] clerical and ministerial duties", nevertheless concluded that plaintiff "fail[ed] to allege facts indicating any employment action on the part of defendants that is sufficiently adverse to support an ADEA claim." Id., 1992 WL 348848, at *5, 1992 U.S.Dist. LEXIS 17542 at *8-9. The Illinois court, noting that this conclusion was sustained by both Seventh and Sixth Circuit case law, engaged in the following analysis:
[P]laintiff contends that her changed job conditions amount to a constructive discharge in reliance upon the Darnell court's observation that a transfer accompanied by diminished prestige and objectively demeaning changed in working conditions may amount to a constructive discharge actionable under the ADEA. However, what [plaintiff] fails to add is that the Darnell court's statement that "barring unusual circumstances, proof of which is totally lacking here, a transfer at no loss of title, pay or benefits does not amount to a constructive discharge or adverse employment action."
1992 WL 348848, at *4, 1992 U.S. Dist. LEXIS 17542, at *11-12 (emphasis added). With this law established, we must now turn to the case at bar.
In the case at bar, it is not disputed that this is a transfer with "no change in wages or benefits." Darnell, 731 F.Supp. at 1313. As such, plaintiff's transfer must "amount to a `constructive discharge' to be actionable as an `adverse employment action'." Id.[3] As noted above, plaintiff complains *1085 that her transfer resulted in less work to keep her busy, and a lessened opportunity for a promotion to the Office Manager position and a lessened opportunity to "fill[] in for said position" when the Office Manager is on leave (See Kauffman Aff at § 5-6). Our question then, is whether these allegations could lead to a conclusion that plaintiff was constructively discharged. Our conclusion, of course, is that they do not. Our Circuit Court, in its affirmance of the Darnell opinion, stated:
We agree with the approach used by the district court.... An employees rejection of a lateral transfer is always actionable as an "adverse employment action" if the conditions of transfer would have been objectively intolerable to a reasonable person, thereby amounting to a "constructive discharge." In determining whether a lateral transfer would be intolerable to a reasonable person, the following non-exhaustive list of factors have been considered: increased distance from home to new position, decrease in salary, grade level or benefits, and changes in job duties and/or responsibilities.
Darnell v. Campbell County Fiscal Court, 1991 WL 11255, at *3, 1991 U.S.App. LEXIS 1755, at *7-8 (6th Cir.1991) (citations omitted). Applying these principles to the case at bar leads to an inevitable result, which is contrary to plaintiff. The first two factors are simply not implicated by the case at bar. The third factor, is, at best, only marginal proof that the plaintiff's transfer was "intolerable". Id.; see also D'Aquino v. Citicorp/Diner's Club, Inc., 755 F.Supp. 218, 221 (N.D.Ill.1991) ("courts have questioned whether the ADEA should be used as a vehicle to challenge changed job responsibilities which cause no materially significant disadvantage to an older employee.") A consideration of these factors should, of course, tend to prove that "the conditions of the transfer would have been objectively intolerable to a reasonable person." 1991 WL 11255, at *3, 1991 U.S.App. LEXIS 1755, at *7-8. Their consideration here, however, tends to prove the opposite. Indeed, plaintiff's own testimony indicates that her new position is not only tolerable, but also is pleasurable. (See Kauffman Depo. at 177 "Q: Do you enjoy where you're working now? A: I do now, yes, uh-huh ... I don't have an objection to where I'm working now, no....") Plaintiff's proof on this issue constitutes no more than a scintilla of evidence, insufficient to overcome the defendants' motion. See Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989) ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence of which the jury could reasonably find for the plaintiff.") (emphasis added, citation *1086 omitted) There is clearly no genuine issue that the plaintiff's lateral transfer did not constitute a constructive discharge and was thus not an adverse employment action as contemplated by the ADEA. Even if this court was not favored with the Circuit's and district court's Darnell opinions, this court would be quite reticent, as a matter of law, to hold that a lateral transfer to a position that the plaintiff enjoys could constitute an "adverse employment action". Summary judgment on this claim is appropriate.
ii. Promotion
In their motion, defendants assert that plaintiff's failure to receive the disputed promotion was not an adverse employment action and that she was not qualified to receive the promotion at issue because she lacked supervisory experience and sufficient typing skills. The defendant's first contention, that a failure to promote was not an adverse employment action, is misguided and has been apparently abandoned in their response to plaintiff's reply brief. (Defendants' Reply Brief, Docket # 52 at 4) ("Plaintiff correctly points out that an employer's decision not to promote an employee because of her age might be actionable under the ADEA.") In light of this stance, the court shall do no more than note that it is quite clear that a failure to promote someone because of their age is considered an adverse employment action under the ADEA. See, e.g., Parnell v. Stone, 793 F.Supp. 742 (E.D.Mich.1992). With this established, we now turn to the other challenged element of plaintiff's prima facie case, her qualification for the denied promotion.
As noted above, defendants dispute plaintiff's qualification for the Office Manager position. The basis of this dispute is plaintiff's purported lack of sufficient typing skills and her "lack of supervisory experience during her tenure as Clerk II in the central office of the Department of Physical Plant Services." (Defendants' Motion, Docket # 43 at 17-18) The plaintiff has undoubtedly made a response sufficient to preclude summary judgment on this issue. On this point, the court need do no more than quote from plaintiff's response to the defendant's motion:
Regarding the Plaintiff's typing skills, the record contains evidence that the Plaintiff was an acceptable typist who was responsible for typing departmental work orders, Deposition of Virginia Kauffman (Kauffman Deposition) at p. 20 (Exh. 1, attached), and the inner departmental billing. Kauffman Deposition at p. 21. Moreover, once Defendant Methan (sic?) assumed the position of Office Manager, the Plaintiff's typing duties were expanded to include typing the departmental work purchase requisitions. Kauffman Deposition at p. 19; 46. Under these circumstances, it simply strains credulity for the Defendants to belittle the Plaintiff's typing skills while simultaneously expanding the Plaintiff's typing duties. The record also contains evidence that the Plaintiff was assigned to perform several of the Office Manager functions while the Office Manager was on vacation or extended leave. Deposition of Chester Williams (Williams Deposition) at p. 18 (Exh. 2, attached).
Regarding the Plaintiff's lack of supervisory experience, the Defendants cannot now contend that prior supervisory experience in the Department of Physical Plant Services was a prerequisite for the position of Office Manager because the person who actually received the position (Defendant Methan) also had no prior supervisory experience during her tenure in that department. Williams Deposition at p. 39-40.
(Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment, Docket # 45 at 8) (emphasis added) On the basis of this testimony, this court cannot conclude that there is no genuine issue that plaintiff was not qualified for the Office Manager position. We now turn to plaintiff's proof that the legitimate business reason advanced by the defendant in support of its decision is a pretext for the true cause of its decision, age discrimination.
C. Legitimate Non-Discriminatory Explanation and its Rebuttal
Plaintiff's putative ability to establish a prima facie case does not, of course, preclude summary judgment in favor of the University. As the Sixth Circuit has stated:
*1087 [I]t is clear that merely making out a prima facie case does not automatically save appellant from a summary judgment motion. "Indeed, the inference of discrimination created by the prima facie case is dispelled once the employer's reason is stated, until and unless the latter is shown to be a pretext." Menard v. First Securities Serv. Corp., 848 F.2d 281, 287 (1st Cir.1988) (quoting Dea v. Look, 810 F.2d 12, 15-16 (1st Cir.1987) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir.1979)). "Unless the plaintiff introduces counter-affidavits and argumentation that demonstrate that there is reason to disbelieve this particular explanation, there is no genuine issue of material fact." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3rd Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989); accord Boddy v. Dean, 821 F.2d 346, 348-49 (6th Cir.1987); compare Steckl v. Motorola, Inc., 703 F.2d 392, 393-94 (9th Cir.1983).
Gagne, 881 F.2d at 314. In other words, once the defendant has offered evidence of a legitimate business reasons for making its decision, the plaintiff must produce evidence that her age was a factor in the decision not to promote her and that "but for" this factor she would have been promoted. Gagne, 881 F.2d at 314.
Plaintiff was hired by the University, and Mr. Williams specifically, in 1979, when she was 50 years old. (Kauffman Depo. at 7) At the time, "he remarked that a lot of sometimes the older women were better than the younger ones. In other words, we had to work and was more felt we would stay there longer...." (sic) (Id. at 8) In 1982, plaintiff was promoted to Clerk II when she was age 54. (Kauffman Depo. at 23-13) The office manager position, the post in dispute here, was held by Virginia Eustice from approximately 1981 until her retirement in 1989. (Kauffman Depo. at 13) At that point, her replacement obviously became an issue.
In the case at bar, the defendant contends that Ms. Metham, who received the promotion "was the best ... qualified employee for the Office Manager Position." (Defendants' Reply Concerning Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment, Docket # 52 at 6) Mr. Williams, the director of the Physical Plant, obtained, from the University Affirmative Action office, waiver from the general requirement that open positions be posted. (Williams Aff. at ¶¶ 5-6; Defendants' Exhibits B and I) This waiver was in accordance with the University's policy of promoting from within when possible. (See Defendants' Exhibit A: "there are occasions when efficiency, productivity and fairness can best be served by promoting a staff member into a vacant position ... Therefore, any department head who wishes to fill a position internally, within his/her specific unit and to waive the usual job communication policy may file such a request with his/her administrative officer and with the office of affirmative action. ...") Mr. Williams testified:
I have always tried to promote from within my own department is the first step. My record will prove that.
Q: Well, is that personal or is that policy?
A: It is both.
. . . . .
So I looked within my own department, first of all, my own office area, first of all. Ann Metham was the only person in that office that had the qualifications to meet the job that needed to be done and that's the sole basis for her promotion.
(Williams Depo. at 31-32). Mr. Williams was not the only person to come to this conclusion. Raymond L. Borom, director of the University's Affirmative Action Office, while considering the granting of the waiver of the posting request, appraised the qualifications of the existing employees in the Central Office of the Department of Physical Services and determined that Kauffman was not qualified for the promotion. (Borom Depo. at 87) When asked to elaborate on the comparison in qualifications for the promotion, Borom testified:
Well, we looked at the skill levels of each individual. I believe Ms. Kauffman was a clerk at the time. Ms. Metham was I believe a clerical specialist. The positions are higher and Ms. Metham had also *1088 passed the typist test by the university, Ms. Kauffman had not. Now, if a person's going to become office manager, they would obviously have to possess a higher level of skill than the people who would be working under you. It would be virtually impossible to manage an office force, be it small secretarial staff or not, and have people beneath who in a sense possess skills which you did not and at some point in time later you're trying to direct them and you could not effectively direct them.
(Borom Depo. at 90-91) Ms. Metham was hired in September 1989. It suffices to say that defendant has successfully articulated a legitimate non-discriminatory business justification for its promotion practices. In light of this fact, "any presumption of discrimination drops from the case, and the burden of persuasion rests squarely on the plaintiff." Wilson v. Firestone, 932 F.2d 510, 514 (6th Cir.1991).
In an attempt to prove that the defendant's justification is unworthy of credence, the plaintiff states:
Defendant Williams' proffered explanation is rebutted, however, by the affidavit of Janice Burke, in which Ms. Burke alleges (1) that the Defendant viewed that Plaintiff as an old woman who was resistant to change, (2) that the Defendants told Burke to stay away from the older woman, and (3) that Defendant Williams intended to take steps to resolve the "situation" in the very near future. Affidavit of Janice Burke (Burke Affidavit) at p. 1-2 (Exh. 3, attache). Defendant Williams' explanation is also rebutted by the affidavit of Darla Spellman, in which Ms. Spellman asserts (1) that Defendant Williams also told Williams not to associate with the Plaintiff, and (2) that Defendant Williams appeared to believe that the Plaintiff was too old to learn how to use the computer Affidavit of Darla Spellman (Spellman Affidavit) at p. 1-2 (Exh. 4, attached).
(Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment, Docket # 45 at 10) The affidavits, in pertinent part, read as follows:
1. I began employment with Kent State University on January 29, 1990.
2. I further state that during my final interview with Chet Williams, Ann Metham, and Don Lumley, I was advised by them that "the older lady in the Department was resistive to change", and that this "older woman's" friend had been in Ann's position before Ann and this woman seemed resentful of that fact.
3. That I was advised by Ann Metham to stay away from the older lady, who they late identified as Ginny Kauffman.
4. That I was further advised in my interview that restructuring of the Department was forthcoming.
5. I further state that in a meeting with Ann Metham the early part of May (per my request) to discuss the conflict between her and Ginny, Ann informed me that Mr. Williams was taking steps to resolve the situation and that things would be much better in the very near future.
6. I was further advised to keep my distance from Mrs. Kauffman.
7. I further state that after I commenced work, I was able to observe the treatment of Mrs. Kauffman by Ann Metham. Ann Metham was extremely rude to Ginny Kauffman. She never spoke to her in a decent tone of voice. She was always very abrupt, cold, and always demeaned Mrs. Kauffman. Ms. Metham was abrupt, sharp and consistently rolled her eyes at Mrs. Kauffman, and made negative comments about her on a continual basis.
8. I further state that I approached Ms. Metham about her treatment of Mrs. Kauffman, and I was advised that I should "stay the hell away from her". I was further advised that "Mr. Williams is going to take care of the situation."
(Burke Aff.) Ms. Spellman testifies to the following:
3. I ... state that after I was hired, I was advised by Mr. Chet Williams to not go to Ginny Kauffman and ask any questions or ask for any help; and further, to stay away from her.
4. I further state that I requested an opportunity to train Ms. Kauffman on the computer; however I was advised by Ms. Metham and Chet Williams that I was not *1089 to allow her to receive training on the computer. The impression that Chet Williams and Ms. Metham gave me was that they felt that Ginny Kauffman was too old to learn the computer.
5. I further state that once Ms. Metham became aware that I was a friend of Ginny Kauffman, she began to treat me coldly.
6. I further state that Ms. Metham treated Ginny Kauffman worst (sic) than anyone else in the office.... In my observations of the way Ms. Metham and Mr. Williams treated Ginny Kauffman, I feel that her age was a factor in her treatment.
(Spellman Aff.)
The court first notes that there exist grave questions as to the admissibility of Ms. Spellman's testimony. See Fed.R.Civ.P. 56(e). In addition, it must be noted that the probative value of Ms. Burke's testimony, on matters occurring months after the promotion decision was made, is also clearly drawn into question. Regardless of these difficulties, it is quite clear that no genuine issue exists on this matter. Plaintiff's evidence, viewed in a light most favorable to her illustrates that she was disliked, that she was treated discourteously, that she was referred to after the promotion as an "old lady", and that one co-worker subjectively believed her age was a factor in defendants' discourteous treatment of her. This "proof" of age discrimination is simply insufficient for any reasonable fact-finder to conclude that the defendant's business justification is untrue and that plaintiff would have received the promotion if it were not for her age. Gagne, 881 F.2d at 314. As noted by our Circuit court:
Such comments are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination.
Chappell v. GTE Products Corp., 803 F.2d 261, 268 n. 2 (6th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987). When "[s]everal of [plaintiff's] co-workers state[] in depositions that the midnight shift is disfavored among [defendant's] employees, and two of those co-workers state[] that they believed assignments were made because of age":
the evidence proffered by plaintiff ... [is] insufficient to withstand a motion for summary judgment ... A jury could not have found for plaintiff on the basis of the evidence presented. Summary judgment, therefore, should have been granted on the age discrimination claim.
O'Shea v. Detroit News, 887 F.2d 683, 688 (6th Cir.1989), reh'g denied (en banc). The Supreme Court has succinctly stated that "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'". Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). This court must conclude that this is such a case. Defendant's motion on this claim must be granted.
IV. Conclusion
There is no genuine issue that the individual defendants are not "employers" for purposes of the ADEA, that plaintiff was not subjected to an "adverse employment action" by her transfer, and that age was not a factor in the decision to promote a younger person rather than plaintiff. Accordingly, defendants' motion for summary judgment, Docket # 43, is GRANTED. This case is terminated in its entirety.
IT IS SO ORDERED.
NOTES
[1] There is an apparent disagreement over the spelling of one defendant's surname. The defendant has used the spelling "Metham", while plaintiff refers to this defendant as Ann "Methan". The court has, for the sake of simplicity, adapted itself to the spelling used by the defendant Metham to identify herself.
[2] This court presumes that there is a factual issue over how this transfer came about. In a May 9, 1990 letter to the Director of her department, plaintiff stated: "I wish to be transferred to the Heating Plant as you previously requested and feel the sooner the better." (See Defendants' Exhibit D) At deposition, however, plaintiff stated that she was "told to put that in by [a KSU employee]". (Kauffman Depo. at 107)
[3] As Judge Bertelsman noted in his Darnell opinion, "[i]n retaliation cases, the courts are more willing to redress transfers involving changes of working conditions, with no loss of pay or benefits." Darnell, 731 F.Supp. at 1313 n. 2.
In the instant case, plaintiff's complaint "alleges retaliation after the filing of the original complaint." (Amended Complaint at ¶ 5) The nature of this "original complaint", is not recounted by the complaint. Plaintiff's complaint does state that she "complain[ed]" about having to do her supervisor's personal work while on the job at the University. (Id. at ¶ 19) Such a complaint, of course, would not give rise to a retaliation claim because such complaints are not a protected activity. Thus, it is entirely unclear from the pleadings why plaintiff could claim retaliation and what actions of the defendants constituted retaliatory conduct. Consequently, it seems quite clear that plaintiff has not sufficiently stated a retaliation claim. See, e.g., Clement v. Motta, 1992 WL 471770 at *5, 1991 U.S.Dist. LEXIS 19698 at *2 (W.D.Mich.1991) ("The complaint does not indicate what act (or acts) form the basis of the claim of retaliation, nor does it indicate which defendants are alleged to have retaliated against [plaintiff], nor does it indicate when this alleged retaliation took place.... Accordingly, ... [plaintiff] has not in his complaint provided the factual basis for his claim of retaliation.")
Even if Ms. Kauffman had stated a retaliation claim, such allegations would be insufficient at this stage of the proceedings. On its face, Rule 56 dictates that a non-moving party "may not rest upon the mere allegations or denials of the ... pleadings." Fed.R.Civ.P. 56(e) Plaintiff's brief in response to the instant motion and the proof attached thereto contain no reference to any claim of retaliation. Indeed, there is neither proof nor allegations which could satisfy even the most basic requirements of a prima facie case of retaliation. See, e.g., Kolb v. State of Ohio Dep't of Mental Retardation and Development, 721 F.Supp. 885, 898 (N.D.Ohio 1989) (Krenzler, J.,) (Title VII case). Plaintiff's only inferential proof on this point is her affidavit stating her belief that she was transferred "as punishment for my previous complaints in the physical plant". (Kauffman Aff. at ¶ 6) Again, there is no indication what the nature of her previous complaints are, and there is no indication that there is a causal link between any complaint and the transfer at issue. This court must, of course, presume that such allegations cannot be made and that such proof does not exist. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (citing Frito-Lay Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988)). In light of such circumstances, this court simply cannot consider the instant action as one involving retaliation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1955650/ | 227 B.R. 763 (1998)
In re CORPORACION DE SERVICIOS MEDICO HOSPITALARIOS DE FAJARDO, Debtor.
Civil No. 98-2333 SEC, Bankruptcy No. 85-00553(ANV).
United States District Court, D. Puerto Rico.
December 10, 1998.
Michael J. Rovell, Chicago, IL, for petitioner.
Pedro Jiménez-Rodriguez, Nancy Pujals, Asst. U.S. Trustee, Office of U.S. Trustee, San Juan, PR, for respondents.
OPINION AND ORDER
CASELLAS, District Judge.
Pending before the Court is a motion filed by the Chapter 7 Trustee, Carlos J. Lastra (the "Trustee") in Bankruptcy Case No. 85-00553(ANV) to withdraw the reference to the Bankruptcy Court of the Trustee's Final Report and Application for Final Compensation (Bk. Dockets # 1637, 1638). The Trustee's request was duly opposed by the debtor (Bk. Docket # 1640) and by the United States Trustee ("U.S. Trustee") (Bk. Docket # 1642). For the reasons stated below in this Opinion and Order, the Trustee's motion for withdrawal of reference is DENIED; this matter will be immediately REFERRED back to the United States Bankruptcy Court for final disposition.
*764 Factual Background
The Trustee seeks the permissive withdrawal of reference of its Final Report and Application for Final Compensation pursuant to 28 U.S.C. § 157(d). In his motion, the Trustee claims that the reference of this Final Report should be withdrawn and assigned to the undersigned because the debtor's audit of the Chapter 7 Trustee's Final Report "appears to involve expenditures authorized by the Trustee from funds of the debtor's estate, which the debtor argues should have been charged to and paid from another estate which the Trustee was administering at the same time, namely In Re: P.R.F., Inc. d/b/a San Juan Health Centre, Case No. 97-1282(SEC), Bankruptcy No. 93-03880(SEK) (`the San Juan Health Centre case')." (Bk. Docket # 1637, page 2). He further argues that because the reference of the San Juan Health Centre has already been withdrawn and that matter is currently pending before the undersigned, that withdrawal of the reference in the instant case "would save judicial resources by permitting resolution of the matters raised by the debtor and the U.S. Trustee in one forum." Id.
Both the debtor and the U.S. Trustee filed motions in which they strongly opposed the withdrawal of reference of the Trustee's Final Report. The debtor opposes the Trustee's characterization of the debtor's investigation into the Trustee's Final Report as principally relating to funds allegedly diverted to the San Juan Health Centre estate. Instead, he avers that "the actual thrust of debtor's investigation . . . is the expenditure and diversion by the Trustee of an amount in excess of $500,000.00 from the Fajardo estate during a period when there was almost no activity of substance in that estate . . ." (Bk. Docket # 1640, page 2). Debtor also argues that there are still many issues to be elucidated regarding the use of said funds are completely unrelated to the San Juan Health Centre estate.
Debtor concludes by stating that "[a]ll such issues pertain to one core bankruptcy matter pending at this time: whether the Trustee's Final Report on the liquidation of this Chapter 7 estate and request for final compensation should be approved, or whether the Trustee (not the San Juan Health Centre or other potential beneficiaries) should be ordered to reimburse funds to the Fajardo estate. It matters not for present bankruptcy purposes whether the ultimate beneficiaries of the Trustee's mismanagement and diversion of Fajardo assets may have been individuals, other bankruptcy estates managed by the Trustee, or the Trustee himself." Id. at page 4.
In turn, the U.S. Trustee argues that the issue regarding any possible transfer of funds to the San Juan Health Centre estate "is just one of the many items identified in the [U.S. Trustee's] objection to the trustee's final report, not the main item." (Bk. Docket # 1642, pages 1-2). The U.S. Trustee also objects to the withdrawal of reference of the Trustee's Final Report on the grounds that "[t]his is a very old case, with many particular and complex issues which are already familiar to the judge who has been handling the case for many years." Id. at page 2. The U.S. Trustee concludes by stating that "[i]t would be against the best interest of case administration to withdraw the reference at this stage of the proceedings when the trustee has already filed his final report and on the grounds alleged by the trustee. The proceedings would be delayed, causing additional expenses to the courts, the debtor, and other parties in interest." Id.
Applicable Law The Withdrawal of Reference Statute
Under 28 U.S.C. § 157(a), "[e]ach district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district." In turn, 28 U.S.C. § 157(d) authorizes the district court to withdraw the reference.
Section 157(d) provides for two types of withdrawal of reference: mandatory and permissive. Under the mandatory provision of § 157(d), "[t]he district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceedings requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce." On the other *765 hand, the permissive prong of § 157(d) provides that "[t]he district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown."
As this Court has previously held, "[t]he purpose of mandatory withdrawal of reference is to assure that only Article III Judges determine issues requiring more than a routine application of federal statutes outside the Bankruptcy Code." In re Ponce Marine Farm, Inc., 172 B.R. 722, 724 (D.P.R. 1994). Courts have overwhelmingly construed this statute narrowly, because to do otherwise would "eviscerate much of the work of the bankruptcy courts" In the Matter of Vicars Insurance Agency, Inc., 96 F.3d 949, 952, quoting In re Adelphi Institute, Inc., 112 B.R. 534, 536 (S.D.N.Y.1990), and would create an "`escape hatch' by which bankruptcy matters could easily be removed to the district court." Id. This mandatory withdrawal provision, however, does not apply to the instant controversy, a fact which has been admitted by the Trustee.
Thus, we need only determine whether permissive withdrawal is warranted in this instance. This Court has held that "permissive withdrawal is . . . used as a narrow exception to the general rule that bankruptcy proceedings should be adjudicated in the bankruptcy court." In re Ponce Marine, 172 B.R. at 724. One court has held that "[t]his section grants the district court broad discretion on whether a case should be heard before the bankruptcy court or the district court." In re C-TC 9th Avenue Partnership, 177 B.R. 760, 765 (N.D.N.Y.1995). The burden of proving that "cause" for withdrawal of reference exists rests upon the movant. Ponce Marine, 172 B.R. at 725.
As the statute provides, a permissive withdrawal of reference may occur only "for cause shown." While the statute is silent on what constitutes "cause" under the provision, caselaw has developed in recent years outlining several factors that should be taken into account by a district court in determining whether permissive withdrawal of reference is appropriate in a given instance. In a seminal case on this issue, the Fifth Circuit Court of Appeals held that "considerations of judicial economy . . . bear on the decision to withdraw the reference or refer to the bankruptcy court." Holland America Insurance Company v. Succession of Roy, 777 F.2d 992, 999 (5th Cir.1985). In Holland, the Fifth Circuit also held that "[t]he district court should consider the goals of promoting uniformity in bankruptcy administration, reducing forum shopping and confusion, fostering the economical use of the debtor's and creditor's resources, and expediting the bankruptcy process." Id.
On the other hand, the Fourth Circuit Court of Appeals has outlined the following list of factors to be taken into account by the district court in the "cause" determination: "whether the claim or proceeding is core or non-core, whether it is legal or equitable, and considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law." In re Orion Pictures Corporation, 4 F.3d 1095, 1101 (4th Cir.1993), cert. dismissed, 511 U.S. 1026, 114 S. Ct. 1418, 128 L. Ed. 2d 88 (1994).
In that same case, the Fourth Circuit determined that "[a] district court considering whether to withdraw the reference should first evaluate whether the claim is core or non-core, since it is upon this issue that questions of efficiency and uniformity will turn." Id. See also In re Coe-Truman Technologies, Inc., 214 B.R. 183, 187 (N.D.Ill. 1997) ("The most important of these factors is whether the adversary proceeding sought to be withdrawn is core or non-core."); In re Westmoreland Coal Company, 221 B.R. 512, 515 (D.Col.1998). To that effect, the Orion court stated that "hearing core matters in a district court could be an inefficient allocation of judicial resources given that the bankruptcy court generally will be more familiar with the facts and the issues." 4 F.3d at 1101. Accord Westmoreland Coal, 221 B.R. at 515. While this core/non-core distinction is not dispositive of the issue, it cuts against permissive withdrawal. See Mishkin v. Gurian, 220 B.R. 784, 800 (S.D.N.Y.1998) ("Although this assumption cuts against permissive withdrawal, it is not dispositive . . . In the final analysis, the critical question is efficiency and uniformity.")
*766 Analysis
Pursuant to the applicable caselaw, we first turn to the determination whether the proceeding for which the trustee seeks withdrawal of the reference is core or non-core. A core proceeding is one that "invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case." Diamond Mortgage Corp. of Illinois v. Sugar, 913 F.2d 1233, 1239 (7th Cir.1990), cert. denied, 498 U.S. 1089, 111 S. Ct. 968, 112 L. Ed. 2d 1054 (1991), quoted in Coe-Truman Technologies, 214 B.R. at 187. While this is sometimes a contentious issue, in this case the Trustee has admitted that the proceeding is clearly a core one, as it involves the final ratification of the debtor's liquidation plan under Chapter 7. Thus, what has been labeled as the most important factor, that this withdrawal pertains to a core proceeding, militates heavily against the granting of the withdrawal of reference. Looking beyond this determination, however, we also find that the other relevant factors weigh strongly against the withdrawal of reference in this instance because the trustee has not met his burden of proving that "cause" for withdrawal exists.
The core/non-core distinction has also been tied to the efficiency factor, insofar as the bankruptcy judge will normally be more familiar with the factual and legal intricacies of the case, and will thus be in a better position to dispose of the case expeditiously. The efficiency factor also weighs heavily against withdrawal of reference in this instance because this is a thirteen-year old bankruptcy case which has been handled by a single judge for most of its procedural history. His close familiarity with every single aspect of this complicated bankruptcy action puts him in a much better position to determine whether the Trustee's Final Report should be approved. We agree with the debtor's position that "[e]ntangling this matter with that of another active estate at this juncture would create additional expense, generate inordinate delay, foster confusion and adversely affect the lawful interests of the debtor." (Bk. Docket # 1640, at pages 6-7).
We also agree that it is highly unusual for the Trustee to have requested withdrawal of reference at this juncture, when the matter is so clearly near its conclusion after lengthy and complicated bankruptcy proceedings. It may be viewed as a belated attempt at "forum shopping," a factor which also weighs against the withdrawal of reference of the instant matter. To that effect, the debtor has argued that "withdrawal of reference in this case would encourage Trustees, in cases where the legality of their acts and their mismanagement has been questioned, to shop for courts far removed from those best suited to ascertain whether the trust placed in the trustee has been served according to the mandates of the law." (Bk. Docket # 1640, page 7). That would clearly run counter to the expeditious and efficient resolution of bankruptcy proceedings and would be an impermissible use of the withdrawal provision as an "escape hatch" from the bankruptcy court to the district court.
Furthermore, the trustee's argument that this matter is so related to the San Juan Health Centre bankruptcy case that withdrawal of the reference would be an economical and wise use of judicial resources must also fail. On the one hand, the arguments presented by the debtor and the U.S. Trustee regarding the scope of the objections to the Chapter 7 Trustee's Final Report are persuasive; the scope of inquiry and contention clearly goes beyond any funds that might have been diverted to the San Juan Health Centre by the Trustee. In addition, we agree with the debtor that the ultimate beneficiaries of the Trustee's alleged diversion of funds from debtor's estate are irrelevant to a determination whether the Trustee must compensate the estate for those diverted or mismanaged funds. Thus, we hereby find that these two matters are not so related as to constitute cause for the withdrawal of reference.
We also find that a withdrawal of reference would not promote uniformity in the bankruptcy proceedings because regardless of whether any funds diverted by the Trustee actually benefitted the San Juan Health Centre estate, the relevant issue in this case is whether the funds were improperly diverted *767 from the debtor's estate by the Trustee, and whether the Trustee should be personally liable for a breach of his fiduciary duties to the debtor's estate. The final disposition of the Trustee's Final Report in this case is completely independent of the proceedings in the San Juan Health Centre case. Thus, an analysis of the relevant factors clearly lead to a finding that withdrawal of reference is inappropriate in this instance.
Conclusion
Pursuant to the above discussion, Trustee's motion for the withdrawal of reference of the Chapter 7 Trustee's Final Report and Application for Final Compensation (Bk. Dockets # 1637, 1638) is hereby DENIED. This matter should be immediately REFERRED back to the United States Bankruptcy Court for final disposition. Judgment will be entered accordingly.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1957445/ | 659 F. Supp. 117 (1987)
KAPPA SIGMA FRATERNITY, et al.
v.
KAPPA SIGMA GAMMA FRATERNITY, et al.
Civ. No. 85-721-D.
United States District Court, D. New Hampshire.
April 16, 1987.
*118 Lee, Smith & Zickert by Thomas E. Smith, Chicago, Ill., McSwiney, Jones, Semple & Douglas by Robert J. Lynn, Concord, N.H., for plaintiffs.
Sulloway, Hollis & Soden by Warren C. Nighswander, Concord, N.H., for defendants.
ORDER
DEVINE, Chief Judge.
The Court presently has before it defendants' motion to reconsider and/or set aside part of its prior Order of February 23, 1987, 654 F. Supp. 1095, and plaintiffs' objection thereto.[1] Specifically, defendants seek the following: (1) modification of paragraph five of the permanent injunctive relief so as to permit defendant Kappa Sigma Gamma Fraternity ("KSG") a reasonable period of up to three months from the date of the Order in which to effectuate fully a change of its name so as not to include any combination of Greek letters which include "Kappa" or "Sigma"; and (2) reversal of the Court's award of reasonable attorney fees to plaintiffs. For the following reasons, the Court grants defendants' motion.[2]
First, the Court finds that it is reasonable to give KSG until May 23, 1987, to complete its name change. Plaintiffs' argument that this request is directly contrary to representations made in defendants' motion for extension of time to file the motion for reconsideration until March 25, 1987, and the attached affidavit of counsel (document no. 34) is unfounded. In the first paragraph of this document, defendants clearly put plaintiffs on notice that they intend to challenge the time allowed for transition to a new name as well as the award of attorney fees. Furthermore, while it is true that counsel's attached affidavit implies that a new name was formally adopted at the corporate board meeting of March 29, 1987, selecting the new name does not complete defendants' obligations under paragraph five of the Court's prior Order. The fraternity's name must be changed in all literature, publications, directories, etc., which refer to the organization, and the Court finds that it is reasonable to permit KSG some additional time to complete the change. See United States Jaycees v. San Francisco Junior Chamber of Commerce, 354 F. Supp. 61, 78 (N.D.Cal.1972). KSG should continue to make a good-faith effort to effect the name change as quickly as possible,[3] but paragraph 5 on page 21 of the prior Order is hereby modified to give defendants until May 23, 1987, to comply with its terms.
Turning to the attorney fees issue, the Court begins by noting that it declines to reexamine or reconsider its prior finding that "defendants willfully and deliberately chose to and so did exploit their former affiliation with Kappa Sigma for a significant period of time after disaffiliation in order to solicit contributions from alumni members of Kappa Sigma." Prior Order at 22. In other words, in making this finding as to defendants' intent, the Court concluded that defendants deliberately chose the name Kappa Sigma Gamma so as to capitalize on their prior affiliation with Kappa Sigma; however, the Court did not mean to *119 imply that it found an intent either to violate federal trademark law or to deceive the alumni as to KSG's separation from the national fraternity. It was based on this finding that the Court held that the award of attorney fees under 15 U.S.C. § 1117 was appropriate. However, aided now by the parties' briefing of the attorney fees issue and a very recent opinion from the United States Court of Appeals for the First Circuit which discusses this specific issue,[4] the Court, upon reconsideration, sets aside that portion of the prior Order which awarded attorney fees and disbursements to plaintiffs. The Court's reasoning on this point is, briefly, as follows.
The relevant statutory provision, 15 U.S.C. § 1117, provides in pertinent part that the Court "in exceptional cases may award reasonable attorney fees to the prevailing party." The statute does not define "exceptional cases", and the First Circuit, quoting the legislative history, has concluded that the award of attorney fees is within the discretion of the district court and "may be appropriate `where justified by equitable considerations,' including those where the acts of infringement were `malicious,' `fraudulent,' `deliberate,' or `willful.'" VWAG, supra note 4, at 821 (citations omitted).
In VWAG, which involved the use of the name "Beetle Barn" by an automobile repair shop which was not affiliated with VWAG, the First Circuit determined that the district court abused its discretion in awarding attorney fees under the standard as described. While VWAG and the instant case are not identical, this Court finds that a comparison of the findings made in the two cases dictates that the award of attorney fees herein be reversed. Specifically, the Court finds the respective rulings as to the intent of the infringing parties to be determinative. In VWAG, the court found that defendant had chosen the name Beetle Barn with the intent to benefit from VWAG's reputation, but that the evidence did not indicate an intent to deceive customers as to an affiliation with VWAG. Id., at 819. As was previously described, this Court made a parallel finding in the instant case, i.e., that the name Kappa Sigma Gamma was intentionally chosen to benefit from Kappa Sigma's reputation, but that the evidence does not support a finding of an intent to deceive the alumni or the new pledges as to the fraternity's continued affiliation with the national fraternity.
Moreover, as was the case in VWAG, various equitable considerations militate against the award of attorney fees in this case. Kappa Sigma has an international membership of more than 132,000 persons and has chapters on or in close proximity to the campuses of 198 colleges and universities in the United States and Canada and alumni chapters in many major cities in the United States. However, Kappa Sigma has had no presence on the Dartmouth College campus since 1980 and has not attempted to reestablish its presence other than through its efforts to gain reaffiliation with KSG. In contrast, KSG has facilities only on the Dartmouth College campus, where there is no Kappa Sigma affiliate with which it can compete for members. Furthermore, KSG's success in soliciting alumni contributions as a local fraternity with a name intentionally chosen to provide a link to its prior status as an affiliate of Kappa Sigma has been limited. As indicated in an attachment to the Hewitt Affidavit, the total amount of alumni contributions to KSG from 1980 through 1986 is $13,123.62.
Finally, this case involves trademark infringement, not in a commercial context, but in the area of fraternal, not-for-profit associations, and the Court finds it would be inequitable to penalize undergraduates who were not involved in the infringement by the assessment of attorney fees.
In summary, the Court, after a careful review of the entire record in this matter and of the relevant case law, concludes that the award of attorney fees and disbursements to plaintiffs contained in the prior *120 Order was inappropriate and must be reversed.[5] Similarly, the Court finds that paragraph 5 on page 21 of the prior Order [654 F.Supp. at 1103] should be modified to permit defendants three months from the date of its issuance to comply with its terms. Accordingly, defendants' Motion for Reconsideration and/or Setting Aside of Order on Motion for Partial Summary Judgment (document no. 39) is hereby granted.
SO ORDERED.
NOTES
[1] As the Court directed in the prior Order, plaintiffs have also filed an application for counsel fees and disbursements, and defendants have filed a response thereto. However, in light of the Court's ruling on the instant motion for reconsideration, these are now moot.
[2] Defendants have requested a hearing on their motion, but the Court finds it can resolve the issues presented upon the papers filed. See Rule 11(g), Rules of the United States District Court for the District of New Hampshire.
[3] The Court notes an example of defendants' good-faith efforts to date in that, pending the selection of the new name, the fraternity house residents have been directed to answer the phone "7 Webster Avenue". See Affidavit of David C. Hewitt in Support of Defendants' Motion to Reconsider, ¶ 4.
[4] Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812 (1st Cir.1987) [hereinafter "VWAG"].
[5] However, this ruling in no way affects plaintiffs' right, as the prevailing party on Counts I, II, and III, to seek its court costs at the close of this case pursuant to Rule 54(d), Fed.R.Civ.P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1957457/ | 659 F. Supp. 480 (1987)
Robert W. NELSEN, Lois Y. Nelsen, Dennis A. Vegel, and Janice A. Vegel, individually and on behalf of others similarly situated, Plaintiffs,
v.
CRAIG-HALLUM, INC., Defendant.
No. Civ. 4-86-135.
United States District Court, D. Minnesota, Fourth Division.
April 8, 1987.
*481 *482 Samuel D. Heins and Sherri L. Knuth, Tanick & Heins, and Richard A. Lockridge, Opperman & Paquin, Minneapolis, Minn., for plaintiffs.
Terrence J. Fleming, and Michael Olafson, Lindquist & Vennum, Minneapolis, Minn., for defendant.
MEMORANDUM OPINION AND ORDER
DIANA E. MURPHY, District Judge.
Robert and Lois Nelsen and Dennis and Janice Vegel charge Craig-Hallum, Inc. with violations of federal securities law and common law fraud. Plaintiffs allege that Craig-Hallum encouraged customers such as themselves to buy stock in the Terrano Corp., although defendant knew that Terrano was in serious financial trouble. They assert that Craig-Hallum was intimately involved with the daily affairs of Terrano and had a great deal of information about the corporation and its financial difficulties. Nonetheless, plaintiffs argue, Craig-Hallum created and circulated fraudulent written statements, containing both false representations and material omissions.
The court previously granted defendant's motion to compel arbitration of the Nelsens' claims. The matter is now before the court on Craig-Hallum's motion to dismiss that part of the complaint which seeks recovery on a "fraud on the market" theory and on the Vegels' motion for class certification.
A. The Motion to Dismiss
In considering a motion to dismiss, the court takes plaintiffs' factual assertions to be true.
Craig-Hallum is a Minnesota securities firm. It was a broker of Terrano stock, but also performed numerous other functions for Terrano. Craig-Hallum underwrote a 1983 common stock offering, was a market-maker in common stock, and provided financial consulting and investment banking services to Terrano. At least one Craig-Hallum representative was at each Terrano board of directors meeting during the proposed class period. Craig Hallum was also party to confidential information and deliberations of Terrano directors. It sought additional financing for Terrano. Craig-Hallum knew that Terrano had a critical need for additional financing during the class period and also knew that efforts to secure the needed funds were entirely unsuccessful. Nonetheless, it repeatedly published written statements recommending purchase of the stock. Even after Craig-Hallum gave up its quest for desperately needed financing, it stated that Terrano "currently has no critical need for cash," and continued to recommend purchase.
The Vegels seek to represent a class of those who purchased Terrano common stock through Craig-Hallum between May 8, 1984 and August 12, 1985. They assert that these class members relied on Craig-Hallum's written misrepresentations and omissions. They also claim that they relied upon the "the artificial impact such reports and recommendations had on the market price for Terrano common stock." It is this last assertion that gives rise to defendant's motion to dismiss. Craig-Hallum argues that the so-called "fraud on the market theory" is unavailable in this circuit, or at least in this case, and that plaintiffs claim under the Securities Exchange Act of 1934, § 10(b) and Rule 10b-5 must therefore be dismissed insofar as it relies on this theory.
*483 An essential element of a Rule 10b-5 claim is causation.
Causation has been most often analyzed in terms of the Rule 10b-5 elements of materiality or reliance.... The element of reliance traditionally required proof that the misrepresentation or omission actually induced the plaintiff to act differently than he would have acted in his investment decision.
St. Louis Union Trust Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 562 F.2d 1040, 1048 (8th Cir.1977), cert. denied, 435 U.S. 925, 98 S. Ct. 1490, 55 L. Ed. 2d 519 (1978). Direct reliance on fraudulent statements is, however, only one theory of causation. Plaintiffs must show "`some causual nexus' between defendant's conduct and [their] losses, ... [but] proof of causation need not be limited to an affirmative showing of reliance upon a written offering circular." Dekro v. Stern Brothers & Co., 540 F. Supp. 406, 411 (W.D.Mo.1982) (citing St. Louis Union Trust, 562 F.2d at 1048). Where the alleged fraud consists primarily of omissions, the reliance requirement may be "relaxed." Vervaecke v. Chiles, Heider & Co., 578 F.2d 713 (8th Cir.1978).[1] More pertinently, investors may allege that misrepresentations harmed them indirectly "by affecting the market upon which [they] relied and traded." Harris v. Union Electric Co., 787 F.2d 355, 367 n. 9 (8th Cir.) (citations omitted), cert. denied, ___ U.S. ___, 107 S. Ct. 94, 93 L. Ed. 2d 45 (1986).
The fraud on the market theory assumes that "in an open and developed securities market, the price of a company's stock is determined by the available material information regarding the company and its business." Peil v. Speiser, 806 F.2d 1154, 1160 (3d Cir.1986) (citing Note, The Fraud-on-the-Market-Theory, 95 Harv.L. Rev. 1143, 1154-56 (1982)). Purchasers who do not directly rely on misstatements, but do rely on the stock's price as evidence of its value, may thereby be defrauded. Thus,
causation is adequately established in the impersonal stock exchange context by proof of purchase and of the materiality of misrepresentations, without direct proof of reliance. Materiality circumstantially establishes the reliance of some market traders and hence the inflation in the stock price when the purchase is made the causational chain between the defendant's conduct and plaintiff's loss is sufficiently established to make out a prima facie case.
Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S. Ct. 57, 50 L. Ed. 2d 75 (1976) quoted in Lipton v. Documation, Inc., 734 F.2d 740, 747 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 814, 83 L. Ed. 2d 807 (1985). See also Levinson v. Basic Inc., 786 F.2d 741 (6th Cir.1986) (suggesting elements of fraud on the market theory), cert. granted, ___ U.S. ___, 107 S. Ct. 1284, 94 L. Ed. 2d 142 (1987).[2]
*484 Craig-Hallum challenges the Vegels' reliance on the fraud on the market theory on two grounds. First, it asserts that the Eighth Circuit has rejected the theory, at least in cases primarily involving misrepresentations. Second, it argues that the fraud on the market theory is not available in actions against brokers.
1. The Fraud on the Market Theory
The Eighth Circuit has approved the fraud on the market theory, at least in "first category" cases involving alleged manipulation of the price of stocks already on the market. Thus, in Harris v. Union Electric Co., 787 F.2d 355, 367 n. 9 (8th Cir.), cert. denied, ___ U.S. ___, 107 S. Ct. 94, 93 L. Ed. 2d 45 (1986), the court rejected the argument that evidence was insufficient to establish reliance by bondholders who made their purchases long after the publication of the alleged fraud:
[Defendant] argues that these bondholders did not rely on the alleged omissions of material fact.... We disagree. False or misleading information, such as that involved in this case, can actually harm investors directlythrough actual reliance, or indirectlyby affecting the market upon which the investor relied and traded.... The plaintiffs established that [defendant's] misleading prospectus inflated the price of the bonds on the open market, which these later purchasers relied upon in making their investment decision. See, Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir. 1984) (adopting fraud on the market theory of recovery), cert. denied, 469 U.S. 1132 [105 S. Ct. 814, 83 L. Ed. 2d 807] (1985).
Craig-Hallum seeks to limit this language to cases which, like Harris, primarily involve omissions. There is nothing in Harris to support such a limitation, however, and the court's reliance on Lipton, which is not an omission case, weighs heavily against defendant's argument. Craig-Hallum has not cited, and the court is not aware of, any case accepting the fraud on the market theory, but limiting it to omissions cases.[3] Thus far, no circuit has rejected the theory. All adopting it have either held or suggested that it is applicable to affirmative misrepresentation cases. See Peil v. Speiser, 806 F.2d 1154 (3d Cir. 1986) (applying fraud on the market theory without determining whether case is one of *485 omission or affirmative misrepresentation), Harris v. Union Electric Co., 787 F.2d 355, 367 n. 9 (8th Cir.) (relying on misrepresentation case) cert. denied, ___ U.S. ___, 107 S. Ct. 94, 93 L. Ed. 2d 45 (1986); Levinson v. Basic Inc., 786 F.2d 741 (6th Cir. 1986) (applying fraud on the market theory without determining whether case is one of omission or affirmative misrepresentation), cert. granted, ___ U.S. ___, 107 S. Ct. 1284, 94 L. Ed. 2d 142 (1987); Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984) (misrepresentation case), cert. denied, 469 U.S. 1132, 105 S. Ct. 814, 83 L. Ed. 2d 807 (1985); T.J. Raney & Sons, Inc. v. Fort Cobb Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983) (applying fraud on the market theory without determining whether case is one of ommission or affirmative misrepresentation), cert. denied, 465 U.S. 1026, 104 S. Ct. 1285, 79 L. Ed. 2d 687 (1985); Panzirer v. Wolf, 663 F.2d 365 (2d Cir. 1981) ("a material misrepresentation or omission is presumed to affect the price of the stock"), cert. granted, 458 U.S. 1105, 102 S. Ct. 3481, 73 L. Ed. 2d 1365 vacated as moot, 459 U.S. 1027, 103 S. Ct. 434, 74 L. Ed. 2d 594 (1982). Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (theory applies to both misrepresentation and omission cases), cert. denied, 459 U.S. 1102, 103 S. Ct. 722, 74 L. Ed. 2d 949 (1983); Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir.1975) (misrepresentation case), cert. denied, 429 U.S. 816, 97 S. Ct. 57, 50 L. Ed. 2d 75 (1976).[4]
2. Availability of Theory in Cases Against Brokers
Defendant also argues that the fraud on the market theory should not be available in actions against brokers, but only against the security issuers. It appears that there are no published cases squarely on point. Cf. Seiler v. E.F. Hutton & Co., 102 F.R.D. 880 (D.N.J.1984) (questioning applicability of theory to suit against broker, but not resolving question). Most fraud on the market cases have been brought against issuers, but some have named other defendants as well. See, e.g., Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975) (issuer's independent auditor); Biben v. Card, Fed. Sec.Rep. (CCH) ¶ 92462 (W.D.Mo. Jan. 6, 1986) [Available on WESTLAW, DCT database] (public relations firm); Dekro v. Stern Brothers & Co., 540 F. Supp. 406 (W.D.Mo.1982) (underwriter).
Defendant's argument rests on its analysis of the fraud on the market theory. The theory applies where plaintiffs made their purchases on the open and impersonal market, where they rely upon the integrity of the market itself. The theory is therefore inapplicable where plaintiffs had direct contact with the defrauding party and base assertions of liability "on affirmative misrepresentations made to [them] personally." McNichols v. Loeb Rhoades & Co., 97 F.R.D. 331, 341 (N.D.Ill.1982). Plaintiffs do not contest this standard, but assert that this case is far from the typical fraud action against a broker. First, the alleged misrepresentations were all written. Plaintiffs do not assert that any misrepresentations were made personally to them. Second, defendant was not merely a broker of Terrano stock, but an intimate participant in Terrano's activities: "Plaintiffs believe that discovery will show that Craig-Hallum told Terrano what information to distribute to the public, that Craig-Hallum dominated the market for Terrano stock, and that Terrano was in fact a creation of Craig-Hallum." Plaintiffs' Brief in Opposition to Defendant's Motion to Dismiss, at 22. These assertions, if true, would place this case squarely within the fraud on the market theory. Dismissal at this time would therefore be inappropriate.
*486 B. Class Certification
The Vegels seek to maintain their federal securities claim on behalf of a class,[5] defined as:
All persons and entities, other than those set forth below, who purchased common stock of Terrano Corporation through Craig-Hallum, Inc. beginning at least as early as May 8, 1984 through August 19, 1985, inclusive, and excluding those persons or entities party to an agreement with Defendant to arbitrate disputes with Defendant. The class does not include Defendant Craig-Hallum, Inc. or Terrano Corporation, their affiliates and subsidiaries, their officers and directors, members of the officers' and directors' immediate families, any entity in which the Defendant or Terrano Corporation or their officers and directors have a controlling interest, and the legal representatives, heirs, successors and assigns of the officers and directors of Defendant or Terrano Corporation.
Plaintiffs seeking to represent a class must show that they meet the four requirements of Fed.R.Civ.P. 23(a): numerosity, commonality, typicality, and adequacy of representation. They must also satisfy one of the three subsections of Fed.R.Civ.P. 23(b). Rule 23(b)(3), on which plaintiffs seek to rely, requires the predominance of common questions over individual ones and the superiority of the class action over other available methods of adjudication. Craig-Hallum disputes most of these requirements. It also argues that even if the class is certified, it should be narrowed. The plaintiffs have the burden of establishing the requirements of Rule 23. Dirks v. Clayton Brokerage Co., 105 F.R.D. 125, 130 (D.Minn.1985). Certification is proper only if the court "is satisfied, after a rigorous analysis, that the prerequisites ... have been met." General Telephone Co. v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 2372, 72 L. Ed. 2d 740 (1982).
1. Numerosity
The precise number of class members is disputed, but Craig-Hallum concedes that approximately 457 customer accounts and 475 purchase transactions are at issue. Plaintiffs need not prove the precise number of class members. E.g. In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 137, (D.N.J.1984). Defendant properly concedes numerosity. The class is "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1).
2. Commonality and Predominance
Central to this certification debate are the requirements that there be "questions of law or fact common to the class," Fed.R. Civ.P. 23(a)(2), and that those questions predominate over individual ones. Fed.R. Civ.P. 23(b)(3).
Plaintiffs assert that the class claims arise from a "common nucleus of operative fact": defendant's dissemination of misleading written statements about Terrano and the class members' purchases of Terrano stock at artificially high prices in reliance on defendant's statements. The asserted common questions of law and fact include: whether defendant acted to inflate the stock's market price, whether the alleged fraudulent statements were false and misleading, whether they were material, and whether defendant's conduct violates federal securities law.
Rule 23(a)(2) does not require identity of claims, e.g. Vernon J. Rockler & Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 340 (D.Minn.1971), and defendant does not seriously argue that plaintiffs have failed to identify common questions sufficient to satisfy Rule 23(a)(2). Rather, it strenuously urges that they cannot satisfy the more stringent test of Rule 23(b)(3), that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members."
*487 Craig-Hallum asserts that the predominant issues in this case are individual questions of fact: what oral and written representations were made to each class members, and upon which, if any, of these representations did that individual rely. According to defendant, certification is precluded because the individual class members may have spoken to different brokers, who may have made varied sales pitches, and because not all class members necessarily read and relied upon all of the allegedly fraudulent documents. Unless plaintiffs can show that each class member read and heard exactly the same representations, defendant argues, certification is improper. Defendant concedes that this argument would require denial of class certification in virtually all 10b-5 actions against brokers.
Defendant reads Rule 23(b)(3) too rigidly. "[A]s a general rule, securities fraud actions are allowed to proceed as class actions `in spite of forseeable variations on the issue of reliance.'" Reichert v. Bio-Medicus, Inc., 70 F.R.D. 71, 75 (D.Minn. 1974) (citations omitted).
There will always be some individuals who read the financial statements directly, others who read secondary analyses ..., and many others who relied on the advice of stock brokers or friends. If ... factual differences of this nature where sufficient to defeat class certification, there would never be a class action of securities purchases.
Biben v. Card, Fed.Sec.L.Rep. (CCH) ¶ 92,462, at 92,826 (W.D.Mo.1986) [Available on WESTLAW, DCT database] (quoting In re Data Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984)). The courts have recognized that class actions are "a particularly appropriate and desirable means to resolve claims based on the securities laws, `since the effectiveness of the securities laws may depend in large measure on the application of the class action device.'" Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir.), cert. denied, ___ U.S. ___, 106 S. Ct. 342, 88 L. Ed. 2d 290 (1985).
Of course, not all putative class of securities purchasers present sufficient common questions to warrant certification. Where the action is based on variable oral representations, it cannot survive scrutiny under Rule 23(b)(3). See, e.g., Glick v. E.F. Hutton, 106 F.R.D. 446 (E.D.Pa.1985); Seiler v. E.F. Hutton & Co., 102 F.R.D. 880 (D.N.J.1984); McMerty v. Burtness, 72 F.R.D. 450 (D.Minn.1976). The instant case does not, however, involve any allegation of oral misrepresentations. The Vegels assert that the class members relied on the fraudulent documents and on the market, which had been distorted by those documents.
There is no question that some of the class members, including Dennis Vegel, spoke to individual brokers before purchasing Terrano stock. Some may have relied in part of their brokers' statements, which may have mirrored the written documents or differed from them. Such variations in the influences on individual class members do not, however, defeat class certification unless they overwhelm the common issues. See, e.g., Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir.) (common questions predominated), cert. denied, ___ U.S. ___, 106 S. Ct. 342, 88 L. Ed. 2d 290 (1985); Dirks v. Clayton Brokerage Co., 105 F.R.D. 125, 132 (D.Minn.1985) (same); Vernon J. Rockler & Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 344-45 (D.Minn.1971) (same). This is true even where the defendant is a broker. See, e.g., Shamkroff v. Advest, 112 F.R.D. 190, 193 (S.D.N.Y.1986); Dirks; Dura-Bilt Corp. v. Chase Manhattan Corp. 89 F.R.D. 87, 96-98 (S.D.N.Y.1981) (certifying class in action against numerous defendants, including brokers). It is particularly true where plaintiffs proceed on the fraud of the market theory. E.g. Dekro v. Stern Brothers & Co., 540 F. Supp. 406, 417 (W.D.Mo.1982); Dura-Bilt, 89 F.R.D. at 96.
Here, plaintiffs have identified a number of significant legal and factual questions common to the class. The common questions include: whether defendant made misrepresentations or omissions, whether any such statements were material, whether they were made with the intent to deceive, and whether defendant acted to inflate the value of Terrano stock. Defendant *488 does not identify any legal issues relevant only to individuals or any individual factual issues other than that of causation. Even if the court were to look only at the issue of causation, plaintiffs have made their case for commonality. Plaintiffs assert that they and other class members relied upon a series of materially false statements that defendant published as part of a scheme to inflate the price of Terrano stock and on the market distorted by these statements. Defendant alleges only generally that individual class members may have received somewhat varied information because they did not read all of the false statements or had conversations with brokers. These individual issues pale in comparison to the substantial common issues raised.
3. Typicality
The parties also dispute whether the Vegels have shown their claims to be "typical of the claims of the class." Fed.R.Civ.P. 23(a)(3). The requirement of typicality is closely related to that of commonality, and the parties' arguments on this requirement closely follow their arguments on commonality. The Vegels assert that their claims are "typical" because they "emanate from the same legal theory as the claims of the class members." Dirks v. Clayton Brokerage Co., 105 F.R.D. 125, 131 (D.Minn. 1985). Defendant asserts that Dennis Vegel's claim is not typical because he relied on his broker's oral statements rather than on the market or the alleged written misrepresentations.
Defendant's argument rests on Dennis Vegel's deposition. Craig-Hallum believes that it contains Vegel's admission that he relied on his broker. The court has carefully reviewed the deposition, and does not find it to be so clear or simple as defendant does. Vegel readily admitted talking with his broker, but stressed his reliance on written statements and on the market. Moreover, partial reliance on a broker's statement does not necessarily vitiate typicality or commonality. See, e.g., Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir), cert. denied, ___ U.S. ___, 106 S. Ct. 342, 88 L. Ed. 2d 290 (1985). Biben v. Card, Fed. Sec.L.Rep. (CCH) ¶ 92, 462, at 92,826 (W.D. Mo.1986) [Available on WESTLAW, DCT database]; In re Data Access Systems Securities Litigation, 103 F.R.D. 130 (D.N.J. 1984). "Reliance on the advice of third parties who serve simply as conduits of the defendants' misrepresentations and omissions does not make class certification less appropriate." Biben v. Card at 92,826 (citing Zandman v. Joseph, 102 F.R.D. 924, 930-31 (N.D.Ind.1984)).
4. Adequacy of Representation
Rule 23(a)(4) seeks to ensure that both named plaintiffs and their counsel will vigorously and capably press the claims of the class. Defendant does not challenge the adequacy of plaintiffs' able counsel. Craig-Hallum does, however, vigorously contest the qualifications of the Vegels to represent the class.
Defendant stresses that the Vegels did not commence this suit; they contacted counsel and joined as named plaintiffs after reading in the newspaper that the Nelsens had filed this action. Defendant also argues that the Vegels have no financial involvement in the prosecution of this action and that they are inadequately knowledgeable about the factual and legal bases of the litigation. In particular, Craig-Hallum asserts that Janice Vegel simply relied on her husband and had no real involvement in the purchase that gives rise to this litigation.
Class representatives need not have an extensive knowledge of securities law, e.g. Michaels v. Ambassador Group, Inc., 110 F.R.D. 84, 90 (E.D.N.Y.1986), nor a detailed knowledge of the relevant facts. E.g. Folz v. U.S. News & World Report, Inc., 106 F.R.D. 338, 341 (D.D.C.1984). Plaintiffs' knowledge about the transactions detailed in the complaint has little bearing on their adequacy. E.g. Shamberg v. Ahlstrom, 111 F.R.D. 689 (D.N.J.1986). Indeed, the quest for a typical investor who fully comprehends the relevant facts and law would inevitably be futile. E.g., Piel v. National Semiconductor Corp., 86 F.R.D. 357, 366 (E.D.Pa.1980). Counsels' qualifications, *489 which are justly conceded here, are therefore "more important ... in assessing the adequacy of representation than are the `[p]ersonal qualifications or motives of the proposed class representatives.'" Biben v. Card, Fed.Sec.L.Rep. (CCH) ¶ 92,462, at 92,827 (W.D.Mo.1986) [Available on WESTLAW, DCT database] (citation omitted).[6]
Plaintiffs assert, and defendant does not seriously dispute, several important facts: the Vegels diligently sought out plaintiffs' counsel after they learned of this litigation. They reviewed the amended complaint, which was filed after they joined in the suit. They have entered into a fee agreement with counsel. They suffered substantial losses on their investments.
Defendant has raised no serious challenge to plaintiffs' adequacy. Their failure to participate in the drafting of the complaint in no way distinguishes them from most other class representatives. Plaintiffs' alleged lack of "financial involvement" is similarly irrelevant. E.g., Shamberg v. Ahlstrom, 111 F.R.D. 689, 694-95 (D.N.J.1986). The alleged inconsistencies or hesitations in deposition testimony are simply insufficient to show that plaintiffs are inadequate. The court is persuaded that they will represent the class vigorously and competently. They more than meet the test urged by defendant: that they "display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation. Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 487 (N.D.Cal.1978).
5. Superiority
Defendant does not seriously contest plaintiffs' assertion that the class action is superior to other available methods for adjudication of this controversy. Fed.R. Civ.P. 23(b)(3). Indeed "a class action must be deemed the only practical method of litigating these issues when the complex nature of the litigation and the comparatively small individual financial interests are considered." Vernon J. Rockler, Inc. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 347 (D.Minn.1971); see also Wendt v. Keenan & Clearey, Inc., Civ. No. 3-85-1029, slip op at 8-9 (D.Minn. Nov. 24, 1986).
6. The Class Definition
Defendant asserts that the class definition is overbroad because it includes persons who purchased and then sold Terrano common stock before the close of the class period. Defendant asserts that these investors "passed on any inflation to subsequent purchasers and [therefore] have not been damaged." The court disagrees. The injury suffered by individual investors may vary depending on when they sold their shares in Terrano. This is not to say, however, that those who sold before August 19, 1985 were not injured. They may simply have been less injured. Cf. Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S. Ct. 57, 50 L. Ed. 2d 75 (1976). Under the circumstances, they should not be excluded from the class.
Accordingly, based on the above and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's motion to dismiss is denied.
2. Plaintiffs' motion for class certification is granted, and the following class is certified:
All persons and entities, other than those set forth below, who purchased common stock of Terrano Corporation through Craig-Hallum, Inc. beginning at least as early as May 8, 1984 through August 19, 1985, inclusive, and excluding those persons or entities party to an agreement with Defendant to arbitrate disputes with Defendant. The class does not include Defendant Craig-Hallum, Inc. or Terrano Corporation, their affiliates and subsidiaries, their officers and directors, *490 members of the officers' and directors' immediate families, any entity in which the Defendant or Terrano Corporation or their officers and directors have a controlling interest, and the legal representatives, heirs, successors and assigns of the officers and directors of Defendant or Terrano Corporation.
3. Within 21 days from the filing of this order, plaintiffs shall submit to the court a proposed notice to the class members. Before submitting this notice, plaintiffs shall confer with defendant regarding the content and the proposed notice.
NOTES
[1] proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision. This obligation to disclose and this withholding of a material fact establish the requisite element of causation in fact.
Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S. Ct. 1456, 31 L. Ed. 2d 741 (1972); Vervaecke. The Vegels do not seek to rely on an Affiliated Ute theory.
[2] There are arguably several fraud on the market theories, or at least several different categories of cases in which it may apply. See Rose v. Arkansas Valley Envtl. & Util. Auth., 562 F. Supp. 1180, 1201 n. 3 (W.D.Mo.1983) (outlining three general categories of cases). The most frequently discussed scenario is that described in Blackie and cases following it; in these cases plaintiffs allege that defendants manipulated the price of actively-traded stock. The second category of cases involves fraudulent proxy statements allegedly designed "to create an unfair ... exchange ratio in a forced merger situation." Rose, 562 F.Supp at 1201 n. 3 (citations omitted). The third and most controversial category of cases involve newly-issued securities. See, e.g. Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S. Ct. 722, 74 L. Ed. 2d 949 (1983). Some commentators have criticized the extension of the fraud on the market theory to such cases, see, e.g. Note, The Fraud-on-the-Market Theory, 95 Harv.L. Rev. 1156 (1982). In cases of newly-issued securities, some courts have required a showing that the fraud resulted in the marketing of a wholly worthless security. See, e.g. Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984) (reading Shores to limit the application of the theory "where new securities are involved to situations where but for the fraud the securities would not have been marketable."), cert. denied, 469 U.S. 1132, 105 S. Ct. 814, 83 L. Ed. 2d 807 (1985); Plastis v. E.F. Hutton & Co., 642 F. Supp. 1277 (W.D. Mich, 1986); Rose, 563 F.Supp. at 1201-03. Although Vervaecke v. Chiles, Heider & Co., 578 F.2d 713 (8th Cir.1978) does not discuss the fraud on the market theory as such, it has been read as a rejection of that theory in new issue cases. See, e.g. T.J. Raney & Sons v. Fort Cobb Irrigation Fuel Authority, 717 F.2d 1330, 1333 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S. Ct. 1285, 79 L. Ed. 2d 687 (1984). It is, of course, only the first of these theories or categories that is at issue in the instant case.
[3] Defendant appears to equate the fraud on the market theory with the rule of Affiliated Ute. Both provide alternatives to the traditional means of proving causation. See, e.g., Blackie v. Barrack, 524 F.2d 891, 905-908 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S. Ct. 57, 50 L. Ed. 2d 75 (1976). These are two distinct theories of causation, however. See, e.g., Levinson v. Basic Inc., 786 F.2d 741 (6th Cir.1986), cert. granted, ___ U.S. ___, 107 S. Ct. 1284, 94 L. Ed. 2d 142 (1987); In re McDonnell Douglas Corp. Sec. Litig., 587 F. Supp. 625, 628 (E.D.Mo.1983). Craig-Hallum seeks to stretch Vervaecke v. Chiles, Heider & Co., 578 F.2d 713 (8th Cir.1978), too far. Vervaecke refused to extend Affiliated Ute to misrepresentation cases:
we do not think that dispensing with an initial showing of reliance and substituting a presumption of causation in fact in all kinds of 10b-5 fraud is necessary, and that it is not appropriate to apply the Affiliated Ute test to this case involving primarily misrepresentation....
Id. at 717. Vervaecke does not refer to the "fraud on the market theory," nor does it cite any of the earlier cases discussing the theory. The parties may not have argued the theory to the court at all. See Biben v. Card, Fed.Sec.L. Rep. (CCH) ¶ 92,010 at 91,000 (W.D.Mo. Apr. 10, 1985) (Vervaecke did not reject the fraud on the market theory); In re McDonnell Douglas, 587 F.Supp. at 627 n. 1 (same); Rose v. Arkansas Valley Envtl. & Util. Auth., 562 F. Supp. 1180, 1202 n. 36 (W.D.Mo.1983) (same); Dekro v. Stern Bros. & Co., 540 F. Supp. 406 (W.D.Mo. 1982) (same). But see Svenningsen v. Piper, Jaffray & Hopwood, Inc., Fed.Sec.L.Rep. ¶ 92,854 at 94,149 (D.Minn. Jan. 31, 1986) [Available on WESTLAW, DCT database] (reading Vervaecke as partial rejection of fraud on the market theory).
[4] At the hearing, defendant also argued that the fraud on the market theory should be available only where there is a substanial barrier to traditional proof of causation. Plaintiffs do not appear to disagree, but assert that such a barrier exists in class actions such as this one. This case does in fact present causation problems.
The theory has been viewed as most sound where it is used in the context of class actions to eliminate the necessity of each class member proving subjective reliance and where the securities were traded on a developed and open market, so that market prices reflect available information about the corporation.
Lipton v. Documation, Inc., 743 F.2d 740, 743 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 814, 83 L. Ed. 2d 807 (1985).
[5] The Vegels initially sought certification on both counts. They withdrew their motion for certification on the state common law claim, however, in light of In re Control Data Corp. Securities Litigation, ___ F.Supp ___ Civ. No. 3-85-1341 (D.Minn. Dec. 1, 1986) and Wendt v. Kennan & Clarey, Inc., Civ. No. 3-85-1209 (D.Minn. Nov. 24, 1986).
[6] Where the interests of the named plaintiffs are antagonistic to those of the class, the adequacy may reasonably be challenged. See, e.g. Riordan v. Smith Barney, 113 F.R.D. 60, 64 (N.D.Ill. 1986); Efros v. Nationwide Corp., 98 F.R.D. 703 (S.D.Ohio 1983). Defendant does not, however, allege any such antagonism. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2659569/ | FILED
UNITED STATES DISTRICT COURT JAN 3 oh 2014
FOR THE DISTRICT OF COLUMBIA Cllrk, U.S. Distnct & Bankruptcy
Caurti forma District of Coturnbia
William Scott Hames, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1665 (UNA)
)
The United States of America, )
)
Defendant. )
MEMORANDUM OPINION
This matter is before the Court on its initial review of the plaintiffs pro se action
captioned °‘Complaint and Motion for Declaratory judgement With Demand for Trial By J
(hereafter “Compl.") and his application to proceed in forma pauperis. The application will be
granted and the complaint will be dismissed pursuant to 28 U.S.C. § 19l5A (requiring dismissal
of a prisoner’s complaint upon a determination that the complaint fails to state a claim upon
which relief can be granted).
The plaintiff, a prisoner at the Federal Correctional lnstitution in Ashland, Kentucky,
alleges that the United States "obtained a two count federal indictment against [him] when the
indictment lacks a sufficient nexus to the essential element of the ‘Commerce Clause’ . . .
Compl. at l. The complaint constitutes a challenge to the plaintiff’s conviction entered by the
United States District Court for the Northern District of Georgia. See Unz'ted States v. Williarns,
59 F.3d l 180, l 182 (l lth Cir. l995) (the plaintiff and co-defendant Richard Williarns were
convicted of attempted possession with intent to distribute marijuana).
"[l]t is well-settled that a [person] seeking relief from his conviction or sentence may not
bring [actions for injunctive and declaratory relief]." Williarns 1-'. Hill, 74 F.3d ]339, 1340 (D.C.
Cir. 1996) (per curiam) (citations omitted). Rather, such relief is available via a motion to vacate
sentence under 28 U.S.C. § 2255. See Taylor v_ U.S. Bd. ofParole, l94 F.2d 882, 883 (D.C.
Cir. 1952) (stating that a motion to vacate under 28 U.S.C. § 2255 is the proper vehicle for
challenging the constitutionality of a statute under which a defendant is convicted); Ojo v. I.N..S'. ,
106 F.3d 680, 683 (S‘h Cir. 1997) (explaining that the sentencing court is the only court with
jurisdiction to hear a defendant’s complaint regarding errors that occurred before or during
sentencing). Section 2255 has its limitations, which the plaintiff apparently has reached See
Um`ted Stales v_ Hames, 431 Fed. Appx. 846 (l lth Cir. 201 ]) (affirming dismissal of the
plaintiff s successive motion to vacate). Since the plaintiff cannot challenge his conviction in
this Court, this case will be dismissed for failure to state a claim upon which relief can be
*/Z¢~; §
Unite'ii ‘States District Judge
granted.l
Date: January 37 , 2014
‘ A separate order accompanies this Memorandum Opinion. | 01-03-2023 | 04-03-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3004139/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2183
C RYSTAL E LUSTRA and C HRISTINE L OPEZ,
as Next Friend of M ORIAH E LUSTRA and
N AJATI E LUSTRA ,
Plaintiffs-Appellants,
v.
T OM M INEO and B RAD F RALICH,
individually and doing business as
B UFFALO W ILD W INGS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 3162—John W. Darrah, Judge.
A RGUED S EPTEMBER 23, 2009—D ECIDED F EBRUARY 9, 2010
Before F LAUM, W OOD , and S YKES, Circuit Judges.
W OOD , Circuit Judge. On the surface, this appeal
presents a straightforward question: did the district
court err when it concluded that the parties reached an
enforceable oral agreement to settle their dispute? But we
2 No. 09-2183
cannot reach that question unless the appellants can
overcome several procedural hurdles. The underlying
case was brought by Crystal Elustra and her mother
Christine Lopez, who appeared as next friend of Crystal’s
younger sisters, Moriah Elustra and Najati Elustra
(both minors). The suit arose out of an argument that
erupted on July 22, 2007, over the bill that the Elustra
girls and some friends owed at the Buffalo Wild Wings
restaurant, which is owned by Brad Fralich. Before things
settled down, the police had been called and the girls were
arrested on charges of disorderly conduct and curfew
violations. Those charges were ultimately dropped,
paving the way for this action against Frankfurt Police
Officer Tom Mineo, Fralich, and Buffalo Wild Wings.
The Elustras asserted that Officer Mineo had violated
their civil rights and that Fralich had falsely imprisoned
them. Moriah Elustra also complained about injuries to
her head and wrists that she suffered during the course
of the arrest.
Shortly after the suit was filed, the parties initiated
settlement discussions. Magistrate Judge Morton Denlow
presided over a two-hour settlement conference, the
details of which we provide below. He concluded that
the parties reached an oral settlement at the end of that
conference and recommended that the district court
enter judgment dismissing the suit pursuant to the agree-
ment. The district court did so. Although the court pro-
ceedings were not as smooth as they might have been,
we see no error in the district court’s decision, and we
therefore affirm.
No. 09-2183 3
I
The settlement conference before Judge Denlow took
place on November 21, 2008. The Elustras attended the
conference with their attorney, Michael Conway. Defen-
dants were present only through counsel. During the
conference, defendants presented a global settlement
offer of $6,000 in exchange for a release of all claims. What
happened next is disputed, but it appears that Judge
Denlow communicated this offer to the plaintiffs and
their attorney, and they accepted the offer. The settle-
ment conference was off the record, but Judge Denlow
later reported that “agreement was reached.”
Before anyone had a chance to commit the terms of the
agreement to writing, Morad Elustra—the father of the
Elustra girls and a nonparty—asked to speak with
Conway. The two men began to argue, and the conversa-
tion ended with Morad telling Conway that the family
would find another lawyer. The entire family then
re-entered the courtroom, gathered their coats, and left;
they pointedly ignored warnings that it was in their
best interest to stay and participate in the hearing.
At that point, the defendants orally moved to enter
judgment dismissing the case with prejudice, in accord-
ance with the settlement agreement, and Judge Denlow
announced that he would rule immediately. He con-
firmed that an agreement had been reached and indicated
that everyone (in particular the plaintiffs) had understood
the settlement and that the process had been a fair one.
Conway was present for this hearing and continued to
speak for the Elustras, despite the exchange with their
4 No. 09-2183
father. Judge Denlow concluded with a recommendation
to the district court to “enforce the settlement”—by
which he meant to dismiss the case with prejudice in
accordance with the agreement the parties had reached.
On December 3, 2008, the district court held a brief
hearing. Conway appeared for the plaintiffs, notwith-
standing Morad’s effort to terminate his representation.
(The record does not indicate whether Crystal Elustra or
Lopez shared Morad’s dissatisfaction with Conway.)
Conway told the court, without elaboration, that plain-
tiffs’ recollection was that there was no agreement; he
did not mention the confrontation with Morad. Relying
on Judge Denlow’s report, the district court entered an
order on December 11, 2008, granting the defendants’
motion to dismiss with prejudice.
On December 29, 2008, Lopez filed a terse, handwritten
pro se motion to vacate and reinstate the claims. With
new counsel, the Elustras supplemented Lopez’s motion
on January 7, 2009. Interpreting the January 7 filing as a
motion for relief from final judgment under Rule 60(b)
(because it was filed after the expiration of the 10-day
period for Rule 59(e) motions), the district court denied
the motion on April 2, 2009. The Elustras now appeal.
II
The Elustras have asked this court to decide whether
the district court correctly found that the parties reached
a binding settlement agreement, under which the case
would be dismissed with prejudice in exchange for a
global payment of $6,000. The defendants, however,
No. 09-2183 5
argue that we cannot review that decision directly. In
their view, the only question properly before us is
whether the district court abused its discretion when it
denied the motion to reconsider. Thus, there are at least
two preliminary questions before us: first, was the
district court correct to treat the January 7 filing as the
first motion to reconsider, and thus one filed under
Rule 60(b), or did it have before it a timely Rule 59(e)
motion, thanks to Lopez’s December 29 filing; second, if
we are to use the December 29 motion as our point of
reference, was it effective to postpone the 30-day period
for filing a notice of appeal? If the answer to that is
yes, then we may reach the merits of the dispute over
the settlement agreement. Otherwise, we would con-
sider only the question whether the district court abused
its discretion in rejecting plaintiffs’ request for recon-
sideration.
A
Although the defendants never raised the issue, we
were concerned about Lopez’s apparent effort directly
to represent, without counsel, both her minor daughters
and her adult daughter when she filed the December 29
motion. We therefore requested supplemental briefing
On December 1, 2009, amendments to the Federal Rules of
Civil Procedure altering certain time limits took effect. All of
the relevant events in this case occurred before that date. Since
the amendments are not retroactive, we apply the Federal
Rules as they existed at the time.
6 No. 09-2183
on this question. Normally, representative parties such
as next friends may not conduct litigation pro se;
pleadings may be brought before the court only by
parties or their attorney. See 28 U.S.C. § 1654 (providing
that “parties may plead and conduct their own cases
personally or by counsel”); F ED. R. C IV. P. 11(a) (requiring
that every motion be signed by an attorney or a party
proceeding pro se). See also Lewis v. Lenc-Smith Mfg. Co., 784
F.2d 829, 830-31 (7th Cir. 1986) (per curiam). Lopez is
neither a party nor an attorney. This means that her
December 29 motion may have been utterly without
legal significance.
The first question we must address is whether we
should look to state or federal law to resolve this problem.
On the one hand, F ED. R. C IV. P. 17(b) provides that
“capacity to sue” is defined by state law. On the other
hand, federal courts are entitled to use their own pro-
cedures, whether the case is one arising under federal
law (as this one was, in part) or it is one based on
another ground such as supplemental jurisdiction (as
this one also was, in part) or diversity of citizenship. See
Hanna v. Plumer, 380 U.S. 460 (1965). Our problem has
less to do with capacity to sue than it does with the right
to act in court, which is normally a matter regulated by
the rules of professional conduct. Federal courts have
the inherent authority to adopt their own rules in this
field, and the Northern District of Illinois has done so.
See N.D. ILL. L OC. R. 83.10 (2009) (general bar local rule
governing admission to practice before the district court);
N.D. ILL. L OC. R. 83.55.5 (2009) (unauthorized practice
of law); N.D. ILL. L OC. R. 83.58.1 (2009) (bar admission
No. 09-2183 7
and disciplinary matters). All of this suggests that even
though the ultimate issue before us concerns a settle-
ment agreement, which is a matter governed by state
law, it is federal law that dictates whether Lopez was
entitled to act for one or more of her three daughters in
the way that she did.
Even though federal law controls, this is the kind of
question for which state law might provide useful guid-
ance. It is common for federal law to borrow principles
from state law, especially when there is a benefit to
having a uniform answer within a particular state on a
certain topic. See generally Boyle v. United Technologies
Corp., 487 U.S. 500 (1988); Clearfield Trust Co. v. United
States, 318 U.S. 363 (1943). The ability of a parent to repre-
sent a child’s interests is a question that arises
frequently in state court. And when we look for general
guidance to Illinois law, it turns out that a number of
Illinois state court decisions offer support to the Elustras.
See Applebaum v. Rush Univ. Med. Ctr., 899 N.E.2d 262,
266 (Ill. 2008) (stating that the nullity rule, which invali-
dates complaints filed by a nonparty, “should be invoked
only where it fulfills its purposes of protecting both the
public and the integrity of the court system from the
actions of the unlicensed, and where no other alterna-
tive remedy is possible”); Pratt-Holdampf v. Trinity
Med. Ctr., 789 N.E.2d 882, 887-89 (Ill. App. Ct. 2003)
(reinstating a complaint improperly filed pro se on behalf
of an estate to avoid the statute-of-limitations bar when
the plaintiff was represented by counsel at every stage
since filing the complaint); Janiczek v. Dover Management
Co., 481 N.E.2d 25, 26-27 (Ill. App. Ct. 1985) (declining to
8 No. 09-2183
invalidate a complaint filed by a disbarred attorney
because doing so would “penalize an innocent party” and
“would overlook the fact that the party did secure the
services of a licensed attorney to represent him at trial”).
Taken together, these cases suggest that an Illinois court
would not dismiss a nonparty’s filing out of hand;
instead, it would distinguish between a filing that
merely allows the party to go forward and more general
prosecution of the lawsuit.
The question for us is whether there is comparable
flexibility in the general rule that a person may appear
in the federal courts only pro se or through counsel. One
consequence of the normal rule is that a next friend
may not, without the assistance of counsel, bring suit on
behalf of a minor party. See Cheung v. Youth Orchestra
Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) (“[A]
non-attorney parent must be represented by counsel in
bringing an action on behalf of his or her child.”); Meeker v.
Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (per curiam)
(“Under Fed. R. Civ. P. 17(c) and 28 U.S.C. § 1654, a
minor child cannot bring suit through a parent acting
as next friend if the parent is not represented by an at-
torney.”). Similarly, a non-attorney parent may not
argue an appeal pro se on behalf of her child. See Navin
v. Park Ridge Sch. Dist. 64, 270 F.3d 1147, 1149 (7th Cir.
2001). This rule is designed to protect the interests of
the minor party; in addition, it “jealously guards the
judiciary’s authority to govern those who practice in its
courtrooms.” Myers v. Loudoun County Pub. Schs., 418 F.3d
395, 400 (4th Cir. 2005).
No. 09-2183 9
The rule is not ironclad, however. There are, for
example, some exceptions for particular kinds of pro-
ceedings. Thus, parents may bring claims pro se on behalf
of their children in an effort to secure social security
benefits. See Machadio v. Apfel, 276 F.3d 103, 106-08 (2d
Cir. 2002). See also Winkelman v. Parma City Sch. Dist., 550
U.S. 516, 535 (2007) (explicitly not reaching the issue
whether parents may litigate claims on behalf of their
children pro se under the Individuals with Disabilities
Education Act (IDEA)). To our knowledge, no comparable
exception has ever been recognized for a lawsuit based
on § 1983 or general state tort law.
But the question before us is not such a sweeping one.
Lopez did not file this action as next friend without the
assistance of counsel, and, with the exception of the
period between December 3, 2008, and January 7, 2009,
she did not proceed pro se. At least until December 3, she
was represented by Conway, and by January 7 she had
secured replacement counsel. The narrow question is
thus whether the motion that she lodged with the court
on December 29 on behalf of at least two of her three
daughters, while she was in the process of lining up new
counsel and while the 10-day clock that applied at the
time for Rule 59(e) motions was ticking, is a nullity
because they did not yet have replacement counsel.
If the December 29 motion was a timely Rule 59(e)
motion, then the time for taking an appeal from the
district court’s judgment dismissing the case on the
basis of the settlement did not begin to run until the
motion was denied, and we can reach the merits of that
10 No. 09-2183
order. If, on the other hand, the first cognizable motion
was the one filed by counsel on January 7, then it was
too late to extend the time for filing a notice of appeal
under F ED. R. A PP. P. 4(a)(4)(iv) and (vi) (as they read
prior to December 1, 2009), and we may review only
the disposition of the motion to reconsider.
In this connection, it is important to recall that the point
of the rule forbidding a next friend to litigate pro se on
behalf of another person is to protect the rights of the
represented party. Discussing the application of the
general rule outside the child-party setting, we observed
that “[m]any good reasons exist for the strict adherence
to this rule, not the least of which is that a party may
be bound, or his rights waived, by his legal representa-
tive.” Lewis, 784 F.2d at 830. This concern is even
stronger in the context of a minor or other person who
is unable to speak for herself. Here, however, the
minors had no ability to file their own Rule 59(e) motion.
If that motion had indeed been ill-advised, counsel would
have said so in the January 7 filing. What actually hap-
pened, however, was that counsel effectively ratified
the earlier filing. If we were to override that action, we
would be harming the minors’ interest in a way that
subverts the purpose of the rule, just because the
family could not obtain counsel during the short period
permitted for a Rule 59(e) motion.
Remedial considerations also support a decision to
give effect to the December 29 motion. Many of the
cases that reject parents’ pleadings filed pro se on behalf
of their children acknowledge that the appropriate
No. 09-2183 11
remedy is to allow the child to re-litigate the case with
counsel. See, e.g., Cheung, 906 F.2d at 61-62 (remanding
child’s claim litigated by a non-attorney parent for reten-
tion or appointment of counsel, or, alternatively, for
dismissal without prejudice). See also Lewis, 784 F.2d at
831 (invalidating the notice of appeal and brief filed by
a nonparty, non-attorney but allowing the appellant to
file a proper notice of appeal and to brief the court of
appeals pro se or through counsel). The Second Circuit
explicitly took remedy into account in a decision in
which it declined to vacate the injunction obtained by a
parent litigating pro se on behalf of a child. Murphy v.
Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 201
(2d Cir. 2002) (“It is hardly in the best interest of [the
child] to vacate an injunction that inures to his benefit
so that he may re-litigate this issue below with licensed
representation in order to re-secure a victory already
obtained.”). The choice before us is more stark: we
must treat the motion as valid or bar the Elustras from
challenging the underlying settlement agreement on
appeal. While we were willing to direct such a harsh
outcome in Navin, that was a case where the parent
pursued the appeal pro se on behalf of the child
through oral argument. Here, within a week of Lopez’s
motion, the Elustras once again had counsel, and they
have proceeded appropriately ever since.
The Elustras have presented additional arguments in
support of their position, including one that draws an
analogy between the Rule 59(e) motion and a formal
notice of appeal, but we see no need to consider them
in depth. We note only that while, on the one hand, FED.
12 No. 09-2183
R. A PP. P. 3(c)(2) provides that “[a] pro se notice of
appeal is considered filed on behalf of the signer and
the signer’s spouse and minor children (if they are par-
ties), unless the notice clearly indicates otherwise,” on
the other hand this court held that a notice of appeal
filed by a pro se parent on behalf of his child was inef-
fective as to the child. Navin, 270 F.3d at 1149 (“The
notice of appeal is signed only by [the non-custodial
parent] and therefore is ineffective to seek review on
behalf of [the child]; the district court’s dismissal of [the
child’s] claim therefore is conclusive, and the appeal
proceeds with [the parent] as the only appellant.”). If
we were to attempt an analogy to notices of appeal, we
might also consider whether there is some way to
provide for renewal of the motion by counsel. See United
States v. A.L., Nos. 09-2460, 09-2546, and 09-2461 (7th
Cir., June 24, 2009) (order dismissing appeals without
prejudice, subject to renewal by appellate counsel); cert.
denied, Lundeby v. Bruinsma, 130 S.Ct. 254 (2009). But that
has already happened here, through counsel’s January 7
motion.
Under the circumstances of this case—that is, where
the plaintiffs had counsel through the issuance of a judg-
ment, the plaintiffs were briefly without counsel during
the very limited time allotted for a Rule 59(e) motion,
the next friend filed a Rule 59(e) motion pro se on behalf
of the minor children, and then counsel was retained to
conduct the Rule 59(e) proceedings and any subsequent
appeal of the judgment—we conclude that the
December 29 motion should not be disregarded just
because it was not filed by counsel. (We note that no
No. 09-2183 13
one has argued that Crystal Elustra, who was an adult
at all times, should be excluded from any benefits con-
ferred by that motion; in light of our ruling on the
merits, we have no need to explore her situation in
greater detail.)
B
The next question is whether Lopez’s December 29
filing was otherwise sufficient as a Rule 59(e) motion. The
first hurdle is the time allotted to file such motions (we
reiterate, under the version of the rules then prevailing).
The district court entered judgment enforcing the settle-
ment agreement on December 11, 2008. Excluding Satur-
days, Sundays, and holidays, the last day of the 10-day
period fell on Friday, December 26. The clerk’s office
was closed on that date, however, and so under F ED. R. C IV.
P. 6(a)(3), the deadline for the motion fell on the next
weekday, December 29, 2008. Lopez’s pro se motion
was therefore timely. The court denied that motion on
April 2, 2009, and the Elustras (through counsel) filed
their notice of appeal on April 30, 2009. This was within
the 30 days permitted by FED. R. A PP. P. 4(a)(1)(A).
Even if the December 29 motion was timely, how-
ever, defendants argue that it was too vague to satisfy
Rule 59(e) and to permit the Elustras to rely on the April 2
denial of the motion as the starting point for their notice
of appeal. This court has held that otherwise timely
skeletal motions that fail to satisfy the requirements of
F ED. R. C IV. P. 7(b)(1) do not postpone the 30-day period
for filing a notice of appeal, even if the party supple-
14 No. 09-2183
ments the motion with additional detail after the 10-day
window has expired. See Martinez v. Trainor, 556 F.2d 818,
819-21 (7th Cir. 1977). Rule 60 motions also must satisfy
Rule 7(b)(1) within the 10-day period, if they are to post-
pone the time for filing a notice of appeal. See Allender v.
Raytheon Aircraft Co., 439 F.3d 1236, 1240-41 (10th Cir.
2006) (noting that FED . R. A PP. P. 4(a)(4)(A) applies only
to properly filed motions).
Rule 7(b)(1) requires that motions must: “(A) be in
writing unless made during a hearing or trial; (B) state
with particularity the grounds for seeking the order; and
(C) state the relief sought.” FED. R. C IV. P. 7(b)(1). See
Martinez, 556 F.2d at 820 (stating that a motion must
include “reasonable specification” to be proper under
Rule 7(b)(1)(B) and thus under F ED. R. A PP . P. 4(a)(4)(A)).
Lopez’s handwritten motion was entitled “Motion to
vacate and Reinstate”; it read as follows, in its entirety:
I never aggred [sic] to settlement vacate order
Dec 11-08 and reinstate case
[signed] C. Lopez
12-21-08
Defendants argue that this motion fails to satisfy Rule
7(b)(1). But it is hard to see how this could be so. The
motion complies with each element of Rule 7(b)(1): it is
in writing; it states the grounds for relief (plaintiffs did
not agree to the settlement); and it states the relief
sought (vacate the order and reinstate the case). The
purpose of Rule 7 is to provide notice to the court and
the opposing party, and that is exactly what Lopez’s
No. 09-2183 15
motion does. We are satisfied that the December 29
motion complied with Rule 7(b)(1) and thus postponed
the 30-day appeal period. We may now, at last, turn to
the merits of the district court’s decision.
III
This court reviews an order dismissing with prejudice
on the basis of a settlement for an abuse of discretion.
Newkirk v. Vill. of Steger, 536 F.3d 771, 773-74 (7th Cir. 2007).
Whether there was an agreement among the parties is
an issue of law that we review de novo. Id.
Under Illinois law, a settlement is valid if there is an
offer, acceptance, and a meeting of the minds. Dillard v.
Starcon Int’l Inc., 483 F.3d 502, 506 (7th Cir. 2007). The
parties do not dispute that the defendants made an
offer. The Elustras argue that there was neither
acceptance nor a meeting of minds. They also argue that
the district court violated Local Rule 17.1 and erred by
refusing to hold an evidentiary hearing before ruling on
their motion to vacate. None of these claims has merit.
A
The Elustras press most strongly the argument that
there is no evidence that they accepted the settlement
agreement. It is true that the settlement conference was
held off the record, making our review more difficult.
But the absence of a record does not necessarily
invalidate the settlement agreement, even though every-
16 No. 09-2183
one’s job is easier if there is a contemporaneous record.
See Gevas v. Ghosh, 566 F.3d 717, 719 (7th Cir. 2009)
(“[W]e have encouraged judges presiding over settle-
ment conferences to dictate to a court reporter their
understanding of settlement terms and make sure that
the parties agree on the record to those terms.”). If the
conference is off the record, the parties assume the risk
that the judge’s recollection of the events might differ
from their own. The fact that oral agreements are en-
forceable (and have been for centuries under the
common law) illustrates why it was so unwise for the
Elustras to storm out of the courtroom just as Judge
Denlow was preparing to review the purported agreement.
Judge Denlow placed on the record his own description
of what had happened at the settlement conference im-
mediately after the conference concluded. He sum-
marized his recollection as follows:
I felt that they were fair negotiations, that the parties
had a complete understanding of what took place, and
they so signified that to me and indicated that both
sides had the advice of counsel, were represented
by able counsel in these proceedings and agreement
was reached.
Conway, ostensibly representing the plaintiffs at that
time, did not object. The Elustras themselves (along with
Lopez and Morad Elustra) had already left the court-
room, and so they were unable to controvert the judge’s
account.
Now, the Elustras want to convince us that they did not
accept the offer. They offer the affidavits of Crystal
No. 09-2183 17
Elustra, Najati Elustra, and Christine Lopez, each of
whom states that she did not agree to the settlement.
But there is a dearth of contemporaneous evidence that
might corroborate this account. Pointing to their fight
with Conway and their unceremonious exit from the
courtroom does not help their cause. Post-acceptance
conduct does not retract an earlier acceptance. The
simplest explanation of their behavior is buyers’ remorse,
expressed not by any of the plaintiffs or even Lopez, but
by the nonparty father, Morad Elustra.
The Elustras have no evidence that the magistrate
judge or Conway bullied them into the settlement, nor
can they show that they did not understand the terms of
the deal. The only evidence—Judge Denlow’s statement
that “the parties had a complete understanding of what
took place”—supports the opposite conclusion. It is
also worth noting that the Elustras’ estimated net
recovery from the settlement apparently exceeds the
cost of their medical bills from the original incident.
Admittedly, Judge Denlow’s use of the passive voice in
his statement (“agreement was reached”) leaves some
ambiguity about whether the plaintiffs or their lawyer
manifested the acceptance. But this is civil litigation, and
parties are bound to the actions of their chosen agent,
even for such an important matter as a settlement. Given
the record we have before us, the district court had no
choice but to confirm the magistrate judge’s finding that
the Elustras—directly or through their lawyer—accepted
the agreement.
18 No. 09-2183
B
The Elustras also argue that there was no meeting of
the minds because the material terms were not “definite
and certain.” Dillard, 483 F.3d at 507 (citing Quinlan
v. Stouffe, 823 N.E.2d 597, 603 (Ill. App. Ct. 2005)).This is
because, they say, the settlement did not identify the
proportion of $6,000 that would go to each defendant.
But it did not need to do this. Parties often negotiate
and agree to a global settlement, and these plaintiffs
had framed their own settlement demands in global
terms. We find that the material terms were definite and
certain: defendants would pay $6,000 to the Elustras
in exchange for their dismissal of the lawsuit.
The Elustras further argue that the parties’ failure to
complete the magistrate judge’s settlement checklist
means that no meeting of the minds could have oc-
curred. If they had stated that no agreement would be
final until it was in writing, or until the checklist was
completed, we would have a different case. But they
did not. The oral agreement covered all material
terms, even if it did not address everything on the
generic checklist.
C
The Elustras next argue that there was no binding
settlement because the district court failed to comply
with Local Rule 17.1, which says, “Any proposed settle-
ment of an action brought by or on behalf of an infant
or incompetent shall not become final without written
approval by the court in the form of an order, judgment
No. 09-2183 19
or decree.” N.D. ILL. L OC. R. 17.1 (2009). The district
court’s December 11, 2008, order called upon the parties
(including Christine Lopez as the mother and next friend
of the minor plaintiffs) to execute a settlement agree-
ment. But later, in its order of April 2, 2009, dismissing
the plaintiffs’ motion to vacate, the district court
decided that the December 11 order satisfied Local
Rule 17.1.
In the Elustras’ opinion, the December 11 order
could not have sufficed, because the final settlement
documents had not been drafted at that time. But that
begs the question: if there was an enforceable oral agree-
ment settling the case as of November 21, then it
does not matter what was or was not in writing as
of December 11. And in any event, wholly apart
from the fact that it is not at all clear that the remedy for
a violation of Local Rule 17.1 should be rescission of an
otherwise regular settlement agreement, we are not
persuaded that any violation of the rule occurred. As
we have said, the parties agreed to the material terms
of their settlement on November 21, and those were
the terms that the court approved on December 11. We
defer to the district court’s understanding of its own
rules. See Jessup v. Luther, 227 F.3d 993, 999 n.5 (7th Cir.
2000) (holding that this court reviews a district court’s
enforcement of its own rules only for abuse of discretion).
The district court found that it had complied with Local
Rule 17.1, and we find no abuse of discretion in that
finding. Finally, even if the December 11 order was some-
how lacking for purposes of Local Rule 17.1, we note
that the rule has no time limit. Thus, the district court’s
20 No. 09-2183
order of April 2, 2009, could also have satisfied the
rule. Either way, Local Rule 17.1 is no bar to enforce-
ment of the settlement agreement.
D
Last, the Elustras argue that the district court abused
its discretion when it did not hold an evidentiary hearing
before ruling on their motion to vacate and reinstate
claims. Whether to hold a hearing, however, was a
matter entrusted to the court’s discretion, and we see
no abuse of that discretion here. The court had a
record, affidavits from the plaintiffs, and briefs from
all parties. That was enough.
The judgment of the district court is A FFIRMED.
2-9-10 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1957675/ | 659 F. Supp. 824 (1987)
Margaretha WALK, an Individual, and Maurice Walk, Trustees for the Cynthia Walk Trust, the Dinand M. Walk Trust, and the Margaretha Walk Trust, and Vincent Ciarlante
v.
The BALTIMORE AND OHIO RAILROAD, the Chesapeake and Ohio Railroad and the CSX Corporation.
Civ. No. S-87-488.
United States District Court, D. Maryland.
May 6, 1987.
John B. Isbister, Tydings & Rosenberg, Baltimore, Md., Michael P. Malakoff, Ellen M. Doyle, Berger, Kapetan, Malakoff & Meyers, P.C., Pittsburgh, Pa., for plaintiffs.
Wilbur D. Preston, Jr., Richard Magid, Ward B. Coe, II, William F. Ryan, Whiteford, Taylor & Preston, Baltimore, Md., for defendants.
SMALKIN, District Judge.
This is a three-count civil action before the Court on a pre-answer amended complaint, filed pursuant to 28 U.S.C. §§ 1331 and 1332, by minority shareholders of the B & O Railroad. (They seek class action status.) The first two counts claim civil violations of the Racketeer Influenced and Corrupt Organizations [RICO] statute, 18 U.S.C. § 1961 et seq. The third count claims violation of a state-law based fiduciary duty owed to the minority B & O shareholders by the defendant C & O, and its parent CSX, as owners of the majority interest in B & O. The matter is now before the Court on the defendants' motion to dismiss the amended complaint, which has been briefed and opposed. No oral argument is necessary. Local Rule 6, D.Md.
*825 The Court is convinced beyond a doubt, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957), that this complaint fails to state a civil RICO claim under 18 U.S.C. § 1962, because it does not allege, nor could it be further amended to allege, a legally sufficient "pattern of racketeering activity." Although the complaint recites a prolix catalogue of events and "schemes" going back many years (to 1977) and involving a number of persons and entities other than B & O minority shareholders, it shows no "pattern of racketeering activity" as that statutory RICO requirement has been interpreted in the Fourth Circuit. In International Data Bank, Ltd. v. Zepkin, 812 F.2d 149 (4th Cir.1987), the Court stated that the "pattern of racketeering activity" requirement was intended to limit civil RICO to "those cases in which racketeering acts are committed in a manner characterizing the defendant as a person who regularly commits" certain crimes. Clearly, this complaint is inadequate to characterize the defendants as persons who regularly commit federally indictable fraud. In fact, the discrete predicate acts of criminal fraud apparently alleged in this complaint include only certain activities pertaining to debenture holders in 1977, already the subject of another lawsuit, and the mailing of a supplemental brief in that lawsuit in 1982 (Amended Complaint, ¶¶ 32-36), the mailing of two proxy statements on March 18, 1983 (id., ¶¶ 40, 46), and the mailing of a press release and notice pertaining to the challenged merger. (Id., ¶¶ 58, 61). As noted by the Supreme Court in Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S. Ct. 3275, 3285 n. 19, 87 L. Ed. 2d 346 (1985), two predicate criminal racketeering acts are necessary, but not sufficient, to make out a pattern of racketeering activity. In the Fourth Circuit, what suffices has been settled by International Data Bank:
What constitutes a RICO pattern is thus a matter of criminal dimension and degree. To allow a "pattern of racketeering" to flow from a single, limited scheme such as this one would undermine Congress' intent that RICO serve as a weapon against ongoing unlawful activities whose scope and persistence pose a special threat to social well-being. The present case does not involve a "pattern of racketeering," but ordinary claims of fraud best left to "the state common law of frauds" and to "well-established federal remedial provisions."
812 F.2d at 155.
Despite plaintiffs' counsel's ingenuity in identifying multiple fraudulent "schemes," as portrayed in their dismissal opposition (filed May 5, 1987) at 3-4, there is but one real "scheme" alleged in this case, and that has to do with the valuation of minority shares and the treatment of minority shareholders in the B & O. The carefully sifted sands through which plaintiffs have combed to find their "schemes" do not form any firm foundation for characterizing the railroad defendants as persons whose criminal conduct poses a "special threat to social well-being." Id. In short, this case involves ordinary claims of fraud, and no more, which are best left to state law. Thus, it fails to state a claim under RICO, and counts 1 and 2 will be dismissed by an order to be entered separately, for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).
Count 3 alleges breach of fiduciary duty to minority shareholders, but it utterly fails to show any legally cognizable, timely-asserted injury to them short of the allegedly less-than-fair value presently being offered for their stock. The claims relating to the treatment of B & O minority shareholders arising from or at issue in the "PTC" litigation are clearly barred by limitations or are foreclosed by the judgment rendered March 31, 1987 by the United States District Court for the Northern District of Ohio in Pittsburgh Terminal Corp. v. The Baltimore and Ohio Railroad, et al., ___ F.Supp. ___, Civil No. C 84-1269, a situation that plaintiffs' opposition does not address. This Court is of the opinion that the remaining claim in the third count, viz., freeze-out of minority shareholders at an inadequate price (which is the only claim really at issue, see, e.g., plaintiffs' opposition at 34, first full paragraph), is not cognizable under Maryland law as pleaded, *826 because the plaintiffs can avail themselves of the remedy of appraisal, as provided in Md. Corps. & Assn's Code Ann. §§ 3-106 and 3-201 3-212 (1957, 1985 Repl.Vol.).
Although Judge Miller of this Court recognized that the sole minority shareholder of a Maryland corporation in a short-form merger might have a cause of action for breach of fiduciary duty in very limited circumstances, Twenty Seven Trust v. Realty Growth Investors, 533 F. Supp. 1028, 1037-39 (D.Md.1982), he held that "inadequacy of price [offered for minority shares] alone does not warrant court intervention in corporate affairs." Id. at 1039, citing Homer v. Crown, Cork & Seal Co., 155 Md. 66, 79-86, 141 A. 425, 431-34 (1928). Homer is still good law in Maryland. See Lerner v. Lerner, 306 Md. 771, 780-81, 511 A.2d 501 (1986). Here, inadequacy of the price being offered for the minority shares is the only real issue in Count III, and the non-statutory cause of action pleaded therein is not recognized in Maryland law. In the language of Homer itself, the question is whether, on a reading of the entire complaint, it appears to the court that "the fundamental issue thus made is not fraud but a debatable controversy over value...." 155 Md. at 80, 141 A. 425. If fraud is not the fundamental issue, then, under Homer, the statutory appraisal is the exclusive remedy. A close reading of the amended complaint's attempted particularizations of "fraud" in connection with the merger, at ¶¶ 71-73, shows that these claims are no more than conclusory disagreements with income and asset valuations, stock valuations, and methods of accounting, which fall far short of establishing the requisite fraud under Homer to warrant an injunction against the merger. Looking at the individual allegations of fraud, the short-line sale contention of ¶ 71.a. does not, by itself or in conjunction with ¶ 67, adequately demonstrate the requisite fraud under Homer, because, inter alia, there is no allegation that the intention to sell short lines was in fact in esse before the merger price was announced. The allegations of failure to make public projections of income and late reporting of income do not adequately plead the requisite fraud. (There is no duty to make public projections of income identified by plaintiffs under Maryland law.) Thus, ¶ 71.b. does not make out a sufficient case of fraud under Homer. Paragraph 72 attacks the integrity of the independent financial advisor, not of defendants, and there is no sufficient allegation of a duty on the part of defendants to make disclosures of Morgan Stanley's activities so as to make out a case of fraud under Homer. Whether taken alone or together, these attempted allegations of fraud convince the Court that fraud is not the essence of the plaintiffs' claim. Rather, here, as in Homer, the fundamental issue is inadequate price, and the few acts of "fraud" identified by plaintiffs are insufficient, as a matter of law, to make out together or separately the species of fraud required to be shown before a Maryland equity court will enjoin a short form or "cashout" merger. Because the statutory appraisal mechanism is not pleaded by plaintiffs here, and because it constitutes an adequate and exclusive remedy under Maryland law as applied to the facts of this case, plaintiffs' third claim also fails to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and it, too, will be dismissed by the Order accompanying this Memorandum Opinion.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, IT IS, this 6th day of May, 1987, by the Court, ORDERED:
1. That plaintiffs' amended complaint BE, and the same hereby IS, DISMISSED, for failure to state a claim upon which relief can be granted; and
2. That the Clerk of Court mail copies of the foregoing Memorandum Opinion and of this Order to counsel for the parties. | 01-03-2023 | 10-30-2013 |