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Howard W. Gillingham and Frank O. Bell, Jr., State Public Defender, under appointments by the Supreme Court, Monica Knox, Chief Assistant State Public Defender, and J. Courtney Shevelson, Deputy State Public Defender, for Defendants and Appellants.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Susanne C. Wylie, Carol Wendelin Pollack, Gary R. Hahn and Thomas L. Willhite, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
As we shall explain, we conclude that as to each defendant the judgment of guilt must be affirmed and all but one special circumstance finding must be upheld. We further conclude that as to each defendant the judgment of death must be reversed because the trial court delivered an unqualified "Briggs Instruction" in violation of People v. Ramos (1984) 37 Cal. 3d 136 [207 Cal. Rptr. 800, 689 P.2d 430].
The evidence introduced at trial told the following tale. In the early morning hours of September 8, 1979, Herrera, Flores, and Rebeles were gathered outside Rebeles's home, drinking beer and listening to the radio in an automobile. Flores was seated in the car; the others were standing nearby. Rebeles saw three Black men walk past on the other side of the street, then return. Two of the men crossed the street toward Herrera, Flores, and Rebeles. One of the two, whom Rebeles identified in court as defendant Robert Warren, pointed a gun at Herrera and Rebeles and ordered them to lie down on the grass between the sidewalk and the street. The other man -- who was never identified -- pulled Flores from the car, pushed him down on [45 Cal. 3d 477] the grass, and took his wallet. The third man, whom Rebeles identified at trial as defendant Woodrow Warren, then crossed the street toward the others. He tried unsuccessfully to start the car. He asked Flores for the keys; Flores said they were in the house.
While Robert was holding the gun, the unidentified robber took jackets from Herrera and Rebeles and 50 cents and house keys from Rebeles. The unidentified robber began to search Herrera. Herrera apparently rose to his haunches and began to twist from side to side to protect his pockets. Robert then asked, "Can I shoot?" Woodrow replied, "Yes," and Robert shot Herrera in the head. Flores began to rise and Robert shot him in the side. The robbers then fled. Flores and Herrera died from their wounds. Woodrow's palm print and several unidentified prints were subsequently lifted from the driver's door of Flores's car.
Rebeles testified that he had seen the three robbers in the neighborhood twice within three days of the shooting. Woodrow is evidently an imposing individual -- tall, muscular, and bald, with a tattoo of a revolver on his left bicep. Robert is apparently of average height and had braided black hair and a little beard.
There was considerable confusion and conflict in the testimony at trial. Three young men who were near the scene testified they heard shots and saw three Black males running away. Mark Sutton, Belinda Campbell, Steven Hicks, and Steven's sister Theresa Myles were gathered outside the house next to Rebeles's when the crime occurred. Sutton testified he saw two Black men walk by and approach the group next door; the shorter man carried a shiny object and told Campbell and Myles to drive away; Sutton and Steven Hicks went inside the house; as he was entering he heard a shot. Steven Hicks, who had been reluctant to testify, related a similar story on the stand. He was impeached, however, with prior statements he had made to the police: he had told them that he saw three men walk by, that one was bald and one was shorter than the others and was carrying a gun, and that the three ran away after the shots were fired. Myles testified she did not see anything, but heard a shot and drove off. She was impeached with prior statements she had made to the police: she had said she saw three men walk up the street and back; two of them crossed the street, the shorter carrying a gun; the third, who remained on the other side of the street, was large and muscular and also had a gun; she drove up the street, heard a shot, and saw the three men run past.
Rudolph (Rudy) Hicks, who was the 12-year-old brother of Steven Hicks and Myles, also testified, as did his friend, Jeffrey Pyles. Each claimed he had been in bed when the crime occurred, but had been told all about it by [45 Cal. 3d 478] the other the next day. Both boys had discussed the crime with the police soon after it occurred. Rudy's version of the events paralleled that given by Rebeles in his testimony at trial and that given by Steven Hicks and Myles in their statements to the police. He testified he had seen the robbers many times at a liquor store in the neighborhood, and described one of the robbers as tall, well-muscled, weighing about 200 pounds, and having a gun tattooed on his left upper arm. But he also said he had gone inside when he saw the two robbers cross the street and had only heard, not seen, the shooting. To the police and to Pyles, however, he had stated that it was the taller, bald robber who had the gun and that that robber did the shooting from across the street. Pyles gave the police a description of the events similar to Rudy's, and testified at trial that everything he had told the police was either made up or was based on what Rudy had told him. The police officer who interviewed Pyles after the crime testified he had concluded Pyles had not been outside during the shootings.
Each defendant attempted to show that he was not involved in the crimes charged. Very soon after the event Rebeles had identified a mug shot of a man named Lamont Bell as the tall, muscular robber. Inconsistencies existed in the testimony of the witnesses concerning how many gunshots were fired and whether the robbers ran or drove away from the scene. Lulu Washington, who has a child by Woodrow, testified that on the night of the crime both defendants were at her home. She knew they were present all night because she was watching movies on television until dawn, with Woodrow asleep beside her in bed and Robert visible through the open bedroom door, asleep on the couch.
In rebuttal Rebeles testified that Bell was not one of the robbers, but Woodrow was. Bell testified he was nowhere near the scene of the crime on the night in question.
Defendants raise numerous challenges going to the issue of guilt. None, however, has merit.
Defendants fail, however, to satisfy the second prong. The data they offer to demonstrate disparity antedates the redrawing of jury districts ordered to remedy any significant disparity, and therefore must be rejected as outdated in the absence of a showing of continuing validity. Accordingly, defendants do not make out a prima facie case of a violation of the fair-cross-section requirement.
 Defendant Woodrow urges us to reexamine our holding in People v. Fields (1983) 35 Cal. 3d 329, 342-353 [197 Cal. Rptr. 803, 673 P.2d 680] (plur. opn.), 374 (Kaus, J., conc.), that the exclusion for cause at the guilt phase of jurors who could never vote for the death penalty does not violate a defendant's fair-cross-section rights. As we explained in People v. Rodriguez (1986) 42 Cal. 3d 730, 748 [230 Cal. Rptr. 667, 726 P.2d 113], we find no reason to do so.
 Defendant Woodrow contends that the court erroneously denied him access to the jail law library. During a pretrial hearing he briefly asked the court to order the sheriffs to allow him use of the library. The court responded: "Well, I'm going to follow the established policies, and that is when the defendants are represented by counsel, they receive no special privileges of that kind. [¶] That request is denied at this time .... [¶] Both defendants are represented by counsel that are more than adequate to research and to apply the law, and I think amateur efforts by the defendants would not be helpful."
Rhinehart, supra, 9 Cal. 3d 139, however, was itself a death penalty case. It is true the record in that case revealed an inquiry by the court into the defendant's qualifications and the seriousness of the facts. Abbreviated though the judge's consideration of Woodrow's request may have been, we cannot find an abuse of discretion. Woodrow was represented by competent counsel. He made no showing that use of the library was necessary for his access to the court; he merely requested such use so that he could "assist in his own defense." The judge's brief response was commensurate with the brevity of Woodrow's request.
Both defendants cite instances of alleged prosecutorial misconduct, and maintain that taken together these instances of misconduct deprived them of a fair trial.  Prosecutorial misconduct, however, does not require reversal unless it subjects the defendant to prejudice. (People v. Bolton (1979) 23 Cal. 3d 208, 214 [152 Cal. Rptr. 141, 589 P.2d 396].) As will appear, we conclude that the conduct complained of either did not amount to misconduct or did not cause prejudice.
 It is improper for a prosecutor to ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist. (People v. Perez (1962) 58 Cal. 2d 229, 240-241 [23 Cal. Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946]; People v. Lo Cigno (1961) 193 Cal.App.2d [45 Cal. 3d 481] 360, 388 [14 Cal. Rptr. 354].) Defendants point to two instances in which the prosecutor allegedly violated this rule.
The first act occurred during the questioning of Mark Sutton. When the prosecutor asked Sutton if he had heard about the Warren brothers prior to his testimony, Woodrow's counsel objected and asked to approach the bench. The prosecutor sought to demonstrate that witnesses in the case were being threatened. The court ruled that the prosecutor did not have a sufficient basis to believe in the existence of such threats, and told him he could ask the witness about knowledge of the Warren brothers but not about threats. The prosecutor's final question to Sutton was whether he was afraid as a witness in the case. Defense counsel objected, and the court admonished the jury to disregard the question because there was no basis in fact to conclude that Sutton was in fear.
 The next instance of the prosecutor's alleged implication of facts he could not prove involved testimony of Officer David Combs, who went through police photographs with Rebeles on the afternoon following the crime. On direct examination, Woodrow's attorney established that Rebeles had selected a picture of Lamont Bell as the tall, muscular robber. On cross-examination, the prosecutor asked Combs if people go by aliases, and if the picture Rebeles selected was also of Woodrow.
Although this was not a proper question, any possible prejudice was cured by subsequent events. Defense counsel immediately objected. The court admonished the jury there was no reason to believe the photograph was of Woodrow. Further, Bell testified that the picture was his own. And, in his closing argument, the prosecutor explained he had not meant to imply the picture was of Woodrow, but rather that it looked like him. Thus, any improper inference that the picture Rebeles selected was of Woodrow was fully and effectively removed.
Defendants cite three instances in which the prosecutor allegedly violated this duty. The first occurred during the direct examination of Rudy Hicks, the boy who made extrajudicial statements to the effect that the taller, bald robber did the shooting. Rudy had spoken to a police officer at a lineup that was subsequently suppressed. The offending exchange was as follows. "Q: Did you have three conversations with Officer Iorio, that is, one in the street, one in Jeffrey Pyles' house and then the third one later the next day -- A: After the lineup. Q: -- down at the police station? A: After the lineup." Defendants moved for a mistrial but were unsuccessful: the court was convinced the prosecutor was surprised by Rudy's mention of the lineup, and believed any prejudice to the defendants was "miniscule" -- it was the defendants who had first mentioned the lineup in their cross-examination of Mark Sutton. The record supports these determinations and we adopt them as our own.
The second alleged failure to admonish a witness involved Officer Reynolds, who interviewed Jeffrey Pyles. The prosecutor asked Reynolds if anyone else was present during his conversation with Pyles. Woodrow's counsel objected, and at the bench stated he had a "sneaky feeling" the prosecutor would attempt to elicit hearsay statements by Pyles's mother to the effect that Pyles was at home asleep during the crime. Such statements would corroborate Pyles's story that Rudy, not he, saw the shooting, and would thus support Rudy's statement to the police effectively identifying Woodrow as the triggerman. The court instructed the prosecutor to limit his questioning of Reynolds to whether Pyles's statements at home were different from his statements at the police station. The prosecutor then asked: "The conversation, the brief one that you had with Jeffrey Pyles there at the house upon your returning from the house from the station, in substance, what did he tell you there at the house?" The officer responded: "Again he told me he had been asleep in his bed and his mother said that he had --" At this point defense counsel objected.
It is clear from the quoted exchange that, as the court found, the witness blurted out the reference to Pyles's mother; the prosecutor asked precisely the question framed by the court. There was no prejudice to defendants [45 Cal. 3d 483] because the officer did not complete his answer and the jury thus did not hear what Pyles's mother said.
The final instance of alleged failure to admonish occurred during the testimony of Officer Sillers, who arrested the defendants and a person he believed to be the third robber three days after the crime in question. The prosecutor asked Sillers to describe the third man and Sillers did so, adding the detail that the man was wearing dark clothes. Several witnesses had testified that the unidentified robber wore dark clothes during the crime. Earlier mention of the clothes worn by defendants and the third man on their arrest, however, had been suppressed.
We believe that even if the prosecutor violated his duty to admonish, he did not subject the defendants to prejudice: the color of the clothes worn by the third man three days after the crime in question was immaterial.
Woodrow briefly cites three other instances of alleged misconduct. He claims the prosecutor misstated evidence when he asked Rudy Hicks about seeing the muscular robber walk down the street, because Rudy had not so testified. The record, however, reveals that Rudy did indeed state he saw the man walk down the street. Woodrow next challenges the prosecutor's attempt to allow Rebeles to comment on the similarity of Woodrow's tattoo and that of the tall, muscular robber. Although Rebeles never testified to a distinctive tattoo, it was not misconduct for the prosecutor to ask if Woodrow's tattoo looked familiar. Woodrow finally points out that the court rebuked the prosecutor for using improper impeachment techniques. The court, however, was merely urging the prosecutor to read from the record instead of paraphrasing what the witness had said, because it was "sloppy" to do otherwise. These examples do not constitute misconduct.
 Defendants' final claim of prosecutorial misconduct concerns the prosecutor's closing argument. At the outset the prosecutor commented, "I would ask you perhaps to excuse and forgive me for having an added emotion, one of a bit of anger at times. [¶] I say these things because I think that during the course of this trial there were times that perhaps some of you, if not all of you, perhaps none of you, had felt that the People were not getting a fair and impartial trial. I asked you to give the People a fair and impartial trial --" At this point the court interrupted and asked all counsel to approach the bench. There the court informed the prosecutor that his comments bordered on the contemptuous, as he was suggesting the court [45 Cal. 3d 484] had not been fair. The court admonished the jury to disregard the remark because it was improper.
Both defendants maintain the prosecutor's statement, combined with his other acts of alleged misconduct, deprived them of a fair trial. They argue the prosecutor forced defense counsel to object numerous times, giving the jury the impression that much evidence was wrongfully being kept from it. And by asserting the People were not given a fair trial, the prosecutor committed the ultimate offense: no admonition by the court could cure this misconduct because the court had been tainted as part of a conspiracy to undermine the People's case. The point must be rejected.
As explained above, defendants' numerous claims of misconduct have little merit. Further, although the prosecutor's opening comments were improper, the potential prejudice inherent therein was effectively prevented from becoming actual by what followed. The court firmly admonished the jury to disregard the offending statement. The prosecutor then continued his argument. "I would like to follow up with what the court has just said. I did not mean at any time to tell you the People were not getting a fair and impartial trial. [¶] I think, if you recall what I just said to you -- I did not so state. [¶] I did state to you at sometime one or more of you might have gotten that feeling. [¶] I also stated, followed up, I state to you now that People expect a fair and impartial trial in this case, and the People expect that you will give the People just as fair and impartial trial as you will give the defendants." Accordingly, we conclude that the potential prejudice inherent in the prosecutor's comment did not become actual.
[11a] At trial Theresa Myles denied corroborating Rebeles's version of the crime in a statement to the police. At the preliminary hearing she testified her mother told her to "keep [her] mouth shut," but at trial she denied that her mother had made that statement. The prosecutor was allowed to impeach her. Similarly, Jeffrey Pyles was permitted to recount the substance of advice given by an older brother of Rudy Hicks: "don't snitch on anybody." Further, the prosecutor was permitted to question Steven Hicks about his reluctance to testify.
Defendants claim it was error for the court to admit the foregoing testimony. They argue that the evidence that witnesses were reluctant to testify suggested that they could identify the defendants, although they had in fact made no identification. They further argue that such a suggestion was emphasized by the prosecutor in closing argument: "Now, counsel, I suppose, will argue and say to you, you can't infer that they could have [45 Cal. 3d 485] identified the two defendants by the fact that they said they didn't or couldn't. You can't infer that. [¶] Well, I wonder if you cannot, by looking at the circumstantial evidence; and that is, the evidence that indicates there was a lot of lighting there; and when you look at what they did say they saw and when you see how outstanding the defendant, Woodrow Warren, was and is, that they could have identified. [¶] I submit to you, I believe you can, on the circumstantial evidence, make that conclusion."
We believe that it was not improper to allow the jury to draw inferences as to what the witnesses could have testified to. As the trial judge stated, "I am satisfied that the jury might infer that Steve Hicks, who sees somebody walk by him under a street light five feet away and Theresa Myles, who is sitting on the passenger side of a car, talking to her brother, and saw these people walk five feet, and Rudolph Hicks, described the defendant to a T, the jury might very well decide that these witnesses did in fact see them. [¶] But they, for one reason or another, they don't want to get involved with a shooting in their own neighborhood where the defendants live a mile away. And I don't want to tell them that in effect these witnesses cannot identify." Thus, there was a clear basis in the record for the prosecutor to argue the inference.
[13a] Defendants contend that the felony-murder and multiple-murder special circumstances must be set aside on the ground that the court improperly instructed the jury on intent to kill. The instructions under challenge were as follows.
"To find the special circumstance, referred to in these instructions as multiple murder convictions, is true, it must be proved: [¶] 1. That the defendant has in this case been convicted of one offense of murder in the first degree and has also been convicted in this case of an additional murder in the first or second degree, and [¶] 2. That the defendant was, with respect to each and every murder conviction in this case, either the actual killer or a person who intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of murder in the first degree.
"To find that the special circumstance, referred to in these instructions as murder in the commission of robbery, is true, it must be proved: [¶] 1a. That the murder was committed while the defendant was engaged in or was an accomplice in the commission of a robbery, or [¶] 1b. That the murder was committed during the immediate flight after the commission of a robbery, [¶] And it must also be proved: [¶] 2. That the defendant was either the actual killer or a person who intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of murder in the first degree."
Defendant Woodrow also claims that the court committed instructional error. Specifically, he argues that the charge failed to inform the jurors that they were required to find that he acted with intent to kill if they determined he was not the actual killer.
 In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. Here the question is, how would a reasonable juror understand the instruction. (E.g., California v. Brown (1987) 479 U.S. 538, 541-542 [93 L. Ed. 2d 934, 940, 107 S. Ct. 837, 839].) In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. (Id. at pp. 541-542 [93 L.Ed.2d at p. 940, 107 S.Ct. at p. 839].) Finally, we determine whether the instruction, so understood, states the applicable law correctly.
[13b] As relevant here, the law provides that before the trier of fact can make a felony-murder or multiple-murder special-circumstance finding as to a defendant who was an aider and abetter rather than the actual killer, it must determine that he acted with intent to kill. In our view, a reasonable juror would understand the language of the instructions to declare that very rule: "the defendant was ... a person who intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of murder in the first degree." Therefore, the instructions, so understood, state the law correctly.
We recognize that in the context of this case the challenged instructions might conceivably be construed in a different manner. In delivering its charge the court defined first degree felony murder: "The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of or attempt to commit the crime of robbery, and where there was in the mind of the perpetrator the specific intent to commit the crime of robbery, is murder of the first degree." Considered in light of the foregoing definition, the language of the instructions might conceivably be understood to mean that a special-circumstance [45 Cal. 3d 488] finding could be made as to an aider and abetter if he acted merely with the intent to commit robbery and not with the intent to kill.
Nevertheless, we believe that the instructions here would not be so construed by a reasonable juror. As shown above, one could understand the charge as requiring intent to rob and nothing more only if he parsed it in a hypertechnical manner. A reasonable juror, however, would not undertake such tortuous analysis.
In conclusion, we hold that by instructing the jury as it did on the felony-murder and multiple-murder special circumstances and the issue of intent to kill, the court did not commit error.
 Defendant Robert contends that the giving of a certain instruction requires the setting aside of the special circumstances as to him. At trial, the court ruled admissible as to Robert, but not as to Woodrow, extrajudicial statements that Rudy Hicks made to the police and to Jeffrey Pyles effectually identifying Woodrow as the triggerman. In accordance with this ruling the court delivered the following instruction: "In determining the truth or falsity of the special circumstance allegation[s] as charged against Defendant Woodrow Warren, you are instructed to disregard totally all out of court statements made by Rudolph Hicks to police officers or to anyone else to the effect that Defendant Woodrow Warren was the actual killer who did the shooting; however, you may consider those statements for whatever value they may have in deciding the truth or falsity of the charged special circumstance allegations as against Defendant Robert Warren."
Robert claims that the instruction quoted above amounts to a comment on the evidence on the part of the court, and that such "comment" is objectionable on the ground that it presented Rudy's testimony as lacking in credibility and thereby essentially directed the jury to find that he was the triggerman. The point must be rejected out of hand.
Accordingly, we are of the opinion that the court did not err in giving the instruction under challenge.
 Defendants contend that it was error for the prosecution to allege two multiple-murder special circumstances instead of one. They are correct. (People v. Anderson, supra, 43 Cal.3d at p. 1150.) It follows that one of the multiple-murder special-circumstance findings must be vacated.
 Defendants persuasively contend that the court committed reversible error under People v. Ramos, supra, 37 Cal. 3d 136. In accordance with the so-called Briggs Instruction, the court delivered the following unqualified charge: "You are instructed that under the State Constitution, a governor is empowered to grant a reprieve, pardon or commutation after sentence following conviction of a crime. Under this power a governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole."
In People v. Ramos, supra, 37 Cal.3d at page 153, we held that "the Briggs Instruction is incompatible with [the] guarantee of 'fundamental fairness' [established in the due process clauses of our Constitution (Cal. Const., art. I, §§ 7, 15)] both because it is seriously and prejudicially misleading and because it invites the jury to be influenced by speculative and improper considerations."
Therefore, we conclude that the court conmitted reversible error by charging the jury in accordance with an unqualified Briggs Instruction. As to each defendant, the judgment of death must therefore be reversed.
As to each defendant, the judgment is affirmed as to guilt. As to each defendant, one of the multiple-murder special-circumstance findings is vacated and the remainder of the special-circumstance findings are upheld. As to each defendant, the judgment is reversed as to penalty.
I fully concur with the majority's reasoning and disposition with one exception. Instead of concluding, as does the majority, ante, at pp. 486-487, that the jury instructions regarding the special circumstance allegations were adequate under People v. Anderson (1987) 43 Cal. 3d 1104 [240 Cal. Rptr. 585, 742 P.2d 1306], I would decline to reach that question. While the trial court's instructions were clearly adequate under Anderson for Robert since the evidence showed he fired the murder weapon, I believe there is a serious question whether the instructions satisfactorily informed the jury it must find Woodrow intended to kill before sustaining the two special circumstance allegations against him. Since one may intentionally aid a killer without necessarily harboring the intent to kill (cf. People v. Beeman (1984) 35 Cal. 3d 547, 561 [199 Cal. Rptr. 60, 674 P.2d 1318]), it is arguable that the trial court's instructions, so far as they apply to Woodrow, did not fully satisfy the dictates of Anderson.
However, we need not resolve that question since even assuming arguendo the instructions were inadequate, reversal would not be warranted in this case. On this record, it is clear no reasonable jury could have concluded Woodrow intentionally aided the crime without intending to kill. (Cf. People v. Croy (1985) 41 Cal. 3d 1, 13-14 [221 Cal. Rptr. 592, 710 P.2d 392].) Most significant is the evidence showing Woodrow answered in the affirmative when Robert asked "Can I shoot?" This evidence clearly betrays Woodrow's intention not merely to aid in the criminal enterprise but to kill as well. Inasmuch as we need not pass on the adequacy of the jury instructions on the facts of this case, I would decline to do so.
With this one reservation, I concur in the majority decision.
I concur in the concurring opinion by Justice Arguelles except that my concurrence in reversal of the death penalty is under compulsion of People v. Ramos (1984) 37 Cal. 3d 136, 153-159 [207 Cal. Rptr. 800, 689 P.2d 430] and People v. Montiel (1985) 39 Cal. 3d 910, 928 [218 Cal. Rptr. 572, 705 P.2d 1248].
FN 2. For the foregoing reasons it was also proper for the court to refuse an instruction proposed by defendants that would have admonished the jury not to infer from the warnings that the witnesses could have identified the perpetrators of the crime.

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Since joining Mayer Brown in 1989, Scott Stewart’s practice has focused exclusively on tax disputes, including transfer pricing issues arising under I.R.C. §482 and intercompany debt matters arising under I.R.C. §385. He represents taxpayers at all levels of federal tax controversy, including audits, administrative appeals before the Internal Revenue Service, mediation involving the Appeals division of the IRS, and litigation before the United States Tax Court.
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Tyco Electronics Corp., formerly known as AMP, Inc., & Subsidiaries v. Commissioner of Internal Revenue, Tax Court Docket No. 16654-13 (filed July 22, 2013) (debt-equity characterization).
Covidien LP, f.k.a. Tyco Healthcare Group, LP, Covidien Holding Inc., f.k.a. SWD Holding, Inc. I, Tax Matters Partner v. Commissioner of Internal Revenue, Tax Court Docket No. 16663-13 (filed July 22, 2013) (debt-equity characterization).
Tyco Electronics Corporate Holdings, Inc., as successor in interest to Tyco Holdings, Inc. & Subsidiaries v. Commissioner of Internal Revenue, Tax Court Docket No. 16661-13 (filed July 22, 2013) (debt-equity characterization).
Tyco Electronics Corp., as successor in interest to Tyco International (PA), Inc. & Subsidiaries v. Commissioner of Internal Revenue, Tax Court Docket No. 16659-13 (filed July 22, 2013) (debt-equity characterization).
Tyco Electronics Corp., as successor in interest to TSSL Holding Corp. & Subsidiaries v. Commissioner of Internal Revenue, Tax Court Docket No. 16655-13 (filed July 22, 2013) (debt-equity characterization).
Tyco Electronics Corporate Holdings, Inc., as successor in interest to Tyco (US) Holdings, Inc. & Subsidiaries v. Commissioner of Internal Revenue, Tax Court Docket No. 16658-13 (filed July 22, 2013) (debt-equity characterization).
Tyco Electronics Corp., as successor in interest to Tycom (US) Holdings, Inc. & Subsidiaries v. Commissioner of Internal Revenue, Tax Court Docket No. 16662-13 (filed July 22, 2013) (debt-equity characterization).
Tyco Electronics Corp., as successor in interest to Tycom Simplex Holdings, Inc. & Subsidiaries v. Commissioner of Internal Revenue, Tax Court Docket No. 16651-13 (filed July 22, 2013) (debt-equity characterization).
United States Surgical Corporate & Subsidiaries v. Commissioner of Internal Revenue, Tax Court Docket No. 16664-13 (filed July 22, 2013) (debt-equity characterization).
ADT Holdings, Inc. v. Commissioner of Internal Revenue, Tax Court Docket No. 16656-13 (filed July 22, 2013) (Withholding Tax).
Sherwood Medical Company I v. Commissioner of Internal Revenue, Tax Court Docket No. 16652-13 (filed July 22, 2013) (Withholding Tax).
Covidien Group S.A.R.L., f/k/a Tyco Group S.A.R.L. v. Commissioner of Internal Revenue, Tax Court Docket No. 16653-13 (filed July 22, 2013 (Withholding Tax).
Tyco Electronics Corp., as successor in interest to Tyco International (PA), Inc. v. Commissioner of Internal Revenue, Tax Court Docket No. 16657-13 (filed July 22, 2013) (Withholding Tax).
Tyco Electronics Corporate Holdings, Inc., as successor in interest to Tyco (US) Holdings, Inc. v. Commissioner of Internal Revenue, Tax Court Docket No. 16660-13 (filed July 22, 2013) (Withholding Tax).
Amergen Energy Co., LLC, by and through Exelon Generation Co., LLC, Tax Matters Partner v. The United States, 94 Fed.Cl. 413, (2010) (opinion on discovery motion to compel admissions). For an article analyzing the Court’s decision see Jasper L. Cummings, Jr., “Capitalization: Selling Nuclear Decommissioning Funds”, Daily Tax Report, (10/12/2010).
Saba Partnership, Brunswick Corporation, Tax Matters Partner, et al. v. Commissioner of Internal Revenue, 78 T.C.M. (CCH) 684 (1999), vacated by 273 F.3d 1135 (D.C. Cir. 2001), remanded to 85 T.C.M (CCH) 817 (2003) (challenge to investment partnerships as devoid of economic substance).
PNC Financial Services Group, Inc. v. Commissioner of Internal Revenue (formerly Riggs National Corp. v. Commissioner of Internal Revenue), 503 F.3d 119 (D.C. Cir. 2007), aff'g T.C. Memo. 2004-110, 87 T.C.M. (CCH) 1276 (2004) ("Riggs III"), on remand from 295 F.3d 16 (D.C. Cir. 2002), rev’g and remanding T. C. Memo. 2001-12, 81 T.C.M. (CCH) 1023 (2001) (“Riggs II”), on remand from 163 F.3d 1363 (D.C. Cir. 1999), rev’g and remanding 107 T.C. 301 (1996) (“Riggs I”) (holding that official tax receipts of Brazilian government were entitled to evidentiary presumption).
United Parcel Service of America v. Commissioner of Internal Revenue, 254 F.3d 1014 (11th Cir. 2001), rev’g and remanding , T.C. Memo. 1999-268, 78 T.C.M. (CCH) 262 (1999) (vacating Tax Court’s finding on sham, assignment of income and penalties).
Overseas Partners Ltd. v. Commissioner of Internal Revenue, T.C. Docket No. 15966-95 (engaged in business issues arising under I.R.C. §§ 882 and 842) (conceded by IRS).
Nestle Holdings, Inc. v. Commissioner of Internal Revenue, 70 T.C.M. (CCH) 682 (1995) (I.R.C. § 482 reallocations, Carnation acquisition).
National Semiconductor Corporation v. Commissioner of Internal Revenue, 67 T.C.M. (CCH) 2849 (1994), acq. in result, 1995-2 C.B. 1 (I.R.C. § 482 reallocations).
Intel Corporation v. Commissioner of Internal Revenue, 100 T.C. 616 (1993), aff’d, 67 F.3d 1445 (9th Cir. 1995) (allocation of income partly from sources within a foreign country under Treas. Reg. § 1.863-3(b)(2)).
National Semiconductor Corporation v. Commissioner of Internal Revenue, 61 T.C.M. (CCH) 2005 (1991) (burden of proof in I.R.C. § 482 case).


The number of people the FBI targeted with national security letters more than doubled last year to more than 14,000.
The letters enable the bureau to collect virtually unlimited kinds of sensitive, private information like financial and phone records in terrorism and espionage investigations. In 2007, the Justice Department's inspector general found widespread violations in the FBI's use of the letters, including demands without proper authorization and information obtained in non-emergency circumstances. The FBI has tightened oversight of the system.
The letters are controversial because there is no court scrutiny of the process; the letters are simply signed by FBI officials without review by a judge.
In a summary to Congress, the Justice Department said the FBI made 24,287 national security letter requests last year for information regarding 14,212 people. That's up from 2009 when there were 14,788 requests for information about 6,114 people.
In 2008, the number of national security letter requests was 24,744 and involved 7,225 people.
Last year's increase from 2009 levels, however, comes nowhere near the activity in national security letters that took place in the years immediately after the Sept. 11, 2001, terrorist attacks.
From 2003 to 2005, the FBI reported issuing 143,074 national security letters requesting customer data from businesses. In 2007, the Justice Department's inspector general said that number did not include an additional 8,850 requests that were never recorded in the FBI's database.
_Filed 1,579 applications with the secretive Foreign Intelligence Surveillance Court to conduct electronic surveillance or physical searches, up from 1,376 applications in 2009, but down from 2,082 in 2008.
_Made 96 applications to the surveillance court for access to business records, up from 21 applications in 2009.
National Security Letters (NSLs) are an extraordinary search procedure which gives the FBI the power to compel the disclosure of customer records held by banks, telephone companies, Internet Service Providers, and others. These entities are prohibited, or "gagged," from telling anyone about their receipt of the NSL, which makes oversight difficult. The Number of NSLs issued has grown dramatically since the Patriot Act expanded the FBI's authority to issue them.
Overview: What Does an NSL Do?
What Types of Information Can Be Obtained by NSLs?
Telephone and E-mail Records: "Toll records," a historical record of calls made and received from land lines, cell phones, and other sources, of a specified phone number, as well as billing records associated with that number. E-mail records, including e-mail addresses and screen names associated with the requested account and the e-mail addresses and screen names who have contacted that account. Also includes billing records and methods of payment for each account.
Financial Records: Financial information, including open and closed checking and savings accounts, from banks, private bankers, credit unions, thrift institutions, brokers and dealers, investment bankers and companies, credit card companies, insurance companies, travel agencies, casinos, and others. For a full list, see 31 U.S.C. § 5312(2).
Credit Information: Full credit reports, names and addresses of all financial institutions at which the consumer has maintained an account, and identifying information of a consumer (limited to name, address, former addresses, and past and current employers).
The four NSL statutes all include "gag order" provisions barring those who receive NSLs from disclosing the fact that they have received such a letter (even to the consumer whose records are being sought) and from disclosing the records provided. The Patriot Act did not alter these provisions. An op-ed explaining one NSL recipient's experience with the gag order entitled My National Security Letter Gag Order appeared in the Washington Post on March 23, 2007.
The American Civil Liberties Union (ACLU) has challenged the gag order provisions in two cases, Doe v. Ashcroft and Doe v. Gonzales. In both cases, the judges ruled that the gag orders were unconstitutional on both Fourth and First Amendment grounds. See the ACLU's pages on Doe v. Ashcroft and Doe v. Gonzales for more information.
The Patriot Reauthorization Act of 2005 modified some of the gag order provisions. An NSL recipient may now disclose the fact that they received an NSL in connection with seeking legal advice or complying with the NSL. NSL recipients were also given the ability to challenge, in federal court, compliance with the NSL and the gag order provisions. Additionally, the government was given the ability to seek judicial enforcement of NSLs in non-compliance situations.
Under the Patriot Reauthorization Act of 2005, the Department of Justice Office of the Inspector General (OIG) is required to review "the effectiveness and use, including any improper or illegal use, of national security letters issued by the Department of Justice." The OIG released its first report, covering calendar years 2003 through 2005, on March 9, 2007. The report detailed significant violations of law and regulations by the FBI in its use of its national security letter authority.
The FBI is required to report to Congress on the number of NSLs issued; the OIG found that the FBI underreported this number. The OIG review looked at 77 case files containing 293 NSLs from four separate FBI field offices issued in the 2003-2005 period. This review found that there were 17% more NSLs in the sample of case files than in FBI reporting databases. Delays in data entry also caused about 4,600 NSLs to not be reported to Congress. The OIG concluded that the FBI database significantly understates the number of NSL requests issued, and that Congress has been misinformed about the scale of the usage of the NSL authority.
The report further stated that violations are supposed to be self-reported by the FBI to the Intelligence Oversight Board. During the 3-year period in question, the FBI self-reported 26 violations out of the 140,000 NSLs issued. The OIG, however, found 22 potential violations out of the sample of 293 NSLs it reviewed. The OIG has stated that there is no indication that the 293 NSLs it reviewed are not representative of all of the NSLs issued, thus indicating that the FBI is failing to self-report a very significant number of violations.
The OIG also found over 700 "exigent letters," which are not authorized by statute and some of which appear to have been issued when no exigency or emergency existed. These letters requested records from telephone companies and promised that proper subpoenas had been submitted or would follow. However the OIG found no confirmation that subpoenas, NSLs, or other proper process did follow or had in fact been submitted.
In response to the OIG report, FBI Director Robert Mueller testified before the Senate Judiciary Committee on March 27, 2007. In his opening statement, Committee Chairman Patrick Leahy stated that the FBI's "pattern of abuse of authority and mismanagement causes me and many others on both sides of the aisle to wonder whether the FBI and Department of Justice have been faithful trustees of the great trust that the Congress and American people have placed in them to keep our nation safe while respecting the privacy rights and civil liberties of all Americans." Senator Arlen Specter, the ranking Republican member on the committee, stated that "the question is emerging as to whether the FBI is up to the enormous task that we have asked it to perform," pointing out that "every time we turn around, there is another, very serious, failure on the part of the bureau."
The Inspector General's report detailed the FBI's use of NSLs from 2003 to 2005. All of the below statistics were taken from this report.
The Right to Financial Privacy Act (RFPA), 12 U.S.C. § 3414. As originally enacted in 1978, the RFPA required that before a disclosure of personal financial information was made to law enforcement, government agencies must have provided individuals with advance notice and have given the individual an opportunity to challenge the request. A 1986 amendment to the RFPA created an exception to this advance notice requirement by authorizing the FBI to obtain financial records in foreign counterintelligence cases in cases where the agency had "specific and articulable facts giving reason to believe that the customer or entity whose records are sought is a foreign power or an agent of a foreign power." These requirements were changed upon enactment of the Patriot Act; the FBI may now obtain financial records if the information is sought for foreign counterintelligence purposes, as long as the investigation is not based on conduct protected by the First Amendment. Congress again amended the RFPA in 2003 to expand the definition of "financial institutions" to which NSLs could be issued. The statute now covers large casinos, insurance companies, automobile dealerships, credit unions, real estate companies, and travel agencies.
The Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 2709. The ECPA allows the FBI to obtain telephone and e-mail information by issuing a NSL. This includes historical information on telephone calls made and received from a specified number, and billing records associated with a number. It also includes e-mails, screen names, and billing records for electronic communication services. Lastly, it includes subscriber information associated with an individual's phone or e-mail account.
The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681u. The FCRA, as amended in 1996, authorizes the FBI to issue NSLs to obtain a consumer's credit history information, including the names and addresses of all financial institutions at which the consumer maintains or has maintained an account. The FBI may also request a consumer's identifying information, limited to name, address, former addresses, and both current and past employers.
Patriot Act amendment to the Fair Credit Reporting Act, 15 U.S.C. § 1681v. This new national security letter authority authorizes the FBI (and any government agency authorized to conduct international terrorism investigations) to obtain a consumer's full credit report and "all other" information in a consumer's file for international terrorism investigations.
The National Security Act, 50 U.S.C. § 436. The National Security Act, amended to include NSL authority after the 1994 espionage investigation of former CIA employee Aldrich Ames, authorizes NSLs to be issued in association with investigations of improper disclosure of classified information by government employees. This authority is rarely used by the FBI. The NSLs can cover financial records and information, including consumer reports.
Lowering the threshold for situations in which NSLs may be issued. Previously, the FBI may only have used NSLs to request information if it had "specific and articulable facts giving reason to believe that the customer or entity whose records are sought is a foreign power or an agent of a foreign power." The Patriot Act eliminated this requirement, and now NSLs may be issued to request information that is merely "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities," provided that such an investigation of a U.S. person is not based on activities protected by the First Amendment. As a consequence, the FBI may use NSLs to request information about persons who are not subjects of national security investigations, so long as the information requested is "relevant" to such an investigation.
Expanding approval authority beyond senior FBI Headquarters officials. Special Agents in charge of the FBI's 56 field offices may now sign NSLs.
Amending the Fair Credit Reporting Act to add a new NSL authority. This new authority authorized the FBI and any other government agency authorized to conduct international terrorism investigations to issue NSLs to obtain full consumer credit reports in international terrorism investigations.
The FBI is subject to two sets of guidelines, one for foreign intelligence and international terrorism investigations ("National Security Investigation (NSI) Guidelines"), and one for general crimes, racketeering and domestic terrorism ("Criminal Guidelines"). In October 2003, the Attorney General made significant changes to the NSI, permitting NSLs to be issued during preliminary investigations. Under the previous guidelines, NSLs could only be issued during full investigations with limited exceptions.
Legislation reintroduced by Representative Jane Harman (D-CA) on March 28 would return the threshold for when a NSL may be issued back to the pre-Patriot Act standard of requiring that the FBI show a specific connection to a terrorist or foreign power before an NSL could be issued. The bill also requires the approval of a Foreign Intelligence Surveillance Court judge or designated United States Magistrate Judge prior to the issuance of a national security letter, create an electronic filing system for NSL applications, and require the FBI to destroy information obtained through NSLs once it is no longer needed. The bill would further increase Congressional oversight of the FBI's use of NSLs. For more information, see the Library of Congress page on the bill.


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The Referee: NBA ... SUNS V. MAVERICKS?
Daaaaaammmmmnnn! The 2006 NBA second-season has been punctuated by great games, compelling series', and replete with more drama than a day in the life of Paris Hilton!
As an interesting aside, what do Elton Brand, Lamar Odom, Rip' Hamilton, Shawn Marion, Jason Terry, Corey Maggette, Ron Artest, Devean George, and Manu Ginobli all have in common? .... ALL have represented in this years' post-season, ALL were taken in the 1st round of the '99 draft... all except Manu, who was the 2nd to last pick in the 2nd round!
After the Heat dispatched an upstart Chicago team in 6, and the Nets took 3 straight (including a pair of Road games) and made Indiana go the way of the Passenger Pigeon in the same number of games, 6, the subsequent Heat / Net series definitely intrigued, didn't it? What, with Dwyane Wade flying around the court like the forgotten Walenda brother (tight-rope walkin' family), Antoine Walker stepping-up late in the series, and the Heat beating the Jersey-ites in 4 consecutive games (including the season-ending 105-106 loss)... didn't that grab your attention? If not, then the Cavalier / Piston series most assuredly rivetted you. After nearly dropping out if the series altogether, the continued maturation and growth of the boy King James had to have captured your attention! Detroit, even playing below their usual level of excellence, snatched victory from the jaws of defeat and the Pistons will now have the honor of knockin' heads with the Miami Heat, a team they are well-suited to beat.
Look, if the NBA makes your pulse quicken then the Sun / Clipper contests had your heart pounding! Forced to a game 7 by the indomitable will of Elton Brand, Nash and Co. looked sluggish and heavy-legged in games 5 and 6, but a 4 day layoff restored the Suns' energy and their crisp passing and dead-eye shooting eclipsed the Clipps' good, but not good enough, play.
Shawn Marion started to come on hard towards the end of the Laker series and, in his last 9 games, "Matrix," the heart and soul of the Suns, has recorded a whopping 6 Double-Doubles including an inspired 34/20 Game 6. Likewise his "Clipper-thisis," Elton Brand, notched 3 Doub'-Doub's over the course of the series, including his signature game; 30/12 with 5 Blocks in L.A's Game 6 W.
Now, the Suns will do battle with the Giant German and his merry band o' Mavs'. Nowitzki is a rare player; a legit' 7-footer with an arsenal of low post moves, a very credible jumper (Nowitzki shot better than 50% from the floor and buried 1 of every 3 shots from beyond the arc) and the ability to put the ball on the floor and drive to the hoop like a guard. The Mav' Power Forward is a gritty, nose-to-the-grindstone player who can single-handedly take over a game with both his shot and his stifling D. Although Nowitzki is a Double-Double waiting to happen, the team is remarkable deep and should match-up well with Phoenix.
PG Steve Nash V. PG Jason Terry: Nash enters this series rested, ready, and shooting like a house a'fire. When the reigning MVP sank his first 3-pointer, Clipper Corey Maggette said, "that's when I knew it was going to be a long night." With a Hoops IQ virtually unmatched (Jason Kidd may be the only other PG who can equal Nash's vision and ability to raise his teammates' games), and the ability to dart into and out of the paint like a Hummingbird, Nash can lay the ball in, kick it out to the open man for a 3, or roll back out beyond the 3-point line and sink his own shot. Tough to defend, Steve Nash definitely gives the Suns an advantage at this position. This doesn't mean that Jason Terry's a slacker, far from it. Nash is, however, operating on a whole other level and the Maverick PG would rather shoot first, pass later, and is therefore more of a Shooting Guard. Indeed, Dallas' young Devin Harris offers another look, a different dimension, and oozes potential.
Advantage Phoenix: When the Sun Point' needs some oxygen, Leandro Barbosa enters the game and his blinding speed makes Nash look lethargic. Watching the wiry guard thread his way through defenders as if they were standing still, you can't help but think that with a few more seasons under his belt Barbosa will be ready to grasp the team's reigns and they'll be in excellent shape. Terry will put up 20+ points, but his assist totals pale in comparison to Nash's. The future looks to be Devin Harris; we, however, are only concerned with "now."
SG Raja Bell V. Jerry Stackhouse: Again, the speed of Bell coupled with his passing acumen and penchant for sinking the clutch perimeter shot afford Phoenix with a very palpable advantage. Mav' Jerry Stackhouse was, at one time, one of the NBA's premier players... alas, no more.
Advantage Phoenix: Bells youth and versatility give the Suns the edge at this position as well.
SF Tim Thomas V. Josh Howard: Thomas can shoot, he can defend, and he can move laterally. Josh Howard, finally healthy, is a dynamic talent who doesn't eschew D. This will be a VERY intriguing match-up. If Thomas can clean the glass, stay out of foul trouble, and hit his outside shots... the Mavs' will be pressed.
Advantage EVEN: If Howard can ratchet his game up another notch, his youth and aggressiveness could end up being the difference in this series, especially if Thomas goes cold for a couple of games.
PF Shawn Marion (Kurt Thomas) V. Dirk Nowitzki: Marion is a Small Forward forced to masquerade as a Power Forward due to the injuries to Kurt Thomas and Amare' Stoudemire. Although Marion's high flying, hot-handed style helped guide Phoenix passed the Clippers, as good as Elton Brand is? Nowitzki's better. The Giant German is a whole other animal... think a younger Tim Duncan, but noy quite as fundamentally sound.
Advantage Mavericks: Nowitzki is without peer and Marion's small compared to him. It's not inconceivable that "Matrix" is marginalized in this series, though I can't see it happening.
C Boris Diaw V. Eric Dampier: Another Sun who can run, Diaw's elevated his game to another level over the course of this season... rest assured, the suns are thrilled to have signed him. Dampier is quick to foul and slow of foot, especially when compared to the speedy Diaw.
Advantage Suns: Diaw gives the Suns size and speed; Dallas will not match-up well against him.

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Art. 6
Art. 6
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Art. 77
Art. 6
Art. 21


Appellant Felipe Gutierrez-Hernandez was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Because appellant had previously been convicted of an aggravated felony, the district court determined the maximum sentence under the statute to be twenty years' imprisonment rather than two-years' imprisonment. See 8 U.S.C. §§ 1101(a)(43), 1326(b)(2). After appellant was given credit for acceptance of responsibility, the court determined the guideline sentencing range to be seventy to eighty-seven months' imprisonment. The district court denied appellant's request for a downward departure and sentenced him to seventy months' imprisonment.
Appellant originally filed this appeal to challenge the district court's discretionary decision to deny a downward departure from the guideline sentencing range. After conceding that this court lacks jurisdiction to consider that issue, see United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998), appellant filed an amended docketing statement to raise two new arguments. First, he contends that his sentence improperly exceeds the statutory two-year maximum under § 1326(a) because the government did not allege his prior aggravated felony conviction in the indictment. Second, he asserts that his seventy-month sentence is excessive and disproportionate to the crime and therefore violates the Fifth and Eighth Amendments.
The Supreme Court has held that an illegal alien's prior aggravated felony conviction is a sentencing factor rather than an element of 8 U.S.C. § 1326, and it need not be alleged in the indictment. Almendarez-Torres v. United States, 523 U.S. 224, 228-35 (1998). The Court expressly declined to revisit or overrule Almendarez-Torres in Apprendi v. New Jersey, 530 U.S. 466 (2000). United States v. Martinez-Villalva, 232 F.3d 1329, 1331 (10th Cir. 2000). Therefore, we are still bound by Almendarez-Torres and appellant's first argument is without merit.
Appellant also argues that his sentence is disproportionate to his crime. The Eighth Amendment prohibits a sentence that is disproportionate to the crime. Hawkins v. Hargett, 200 F.3d 1279, 1281-82 (10th Cir. 1999) (reviewing Supreme Court jurisprudence on proportionality), cert. denied, 121 S. Ct. 83 (2000). However, "'successful challenges to the proportionality of particular sentences should be exceedingly rare.'" Id. at 1281 (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)). We make a threshold comparison of the crime committed and the sentence imposed to determine if the sentence is grossly disproportionate. Id. at 1282 (discussing Harmelin v. Michigan, 501 U.S. 957 (1991)). If it is not, then we do not consider how appellant's sentence compares to sentences imposed for other crimes in the same jurisdiction, or to sentences imposed by other jurisdictions for the same crime. Id. at 1281-82.
Further, "[w]e must 'grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.'" United States v. Jones, 213 F.3d 1253, 1262 (10th Cir. 2000) (quoting Solem v. Helm, 463 U.S. 277, 290 (1983)). Under this standard, we do not find appellant's sentence to be grossly disproportionate for the crime charged under 8 U.S.C. § 1326. His seventy-month sentence was well below the statutory maximum and was the minimum sentence within the applicable guideline range.


Emile Moreau (State Prisoner: 04-A-1588; State Prisoner: 04A1588), Plaintiff — Appellant, v. Den Peterson, et al., Defendants — Appellees.
FOR APPELLANT: Emile Moreau, pro se, Napanoch, NY. FOR APPELLEES: Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, Philip V. Tisne, Assistant Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of January, two thousand seventeen. PRESENT: ROSEMARY S. POOLER, PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges.
Emile Moreau, pro se, Napanoch, NY.
Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, Philip V. Tisne, Assistant Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of New York (Roman, J.).
Emile Moreau, pro se, appeals from the district court's dismissal of his 42 U.S.C. § 1983 claims of racial discrimination and retaliation against five defendants in the Department of Corrections and Community Supervision ("DOCCS"). Moreau's complaint is liberally read to set forth six claims. It alleges that DOCCS employees at the Green Haven Correctional Facility's GED program discriminated against him on the basis of race and retaliated against him after he filed grievances; that the facility's superintendent acted with deliberate indifference by refusing to transfer him to a different facility; and that a corrections officer retaliated against him and acted with deliberate indifference by placing him in the same cell block as an inmate who had previously attacked him. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review dismissals pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) de novo. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); Cayuga Nation v. Tanner, 824 F.3d 321, 327 (2d Cir. 2016). To survive a motion to dismiss under Rule 12(b)(6), the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Id.
Upon review, we conclude that the district court properly dismissed four of Moreau's claims for failure to exhaust administrative remedies as required under the Prison Litigation Reform Act ("PLRA"). See 42 U.S.C. § 1997e(a). As an inmate in the custody of DOCCS, Moreau was subject to a three-step grievance process whereby grievances could be filed with a review committee, appealed to the facility superintendent, and then appealed to the DOCCS Central Office Review Committee. 7 N.Y.C.R.R. § 701.5. Moreau did not file grievances for four of his six claims, and is therefore unable to pursue them under the PLRA.
The district court properly dismissed one of Moreau's remaining exhausted claims, for racial discrimination against defendant Peterson, as untimely. Section 1983 claims in New York are subject to a three-year statute of limitations that runs from the time the "plaintiff knows or has reason to know of the injury giving rise to the claim." Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (internal quotation marks and citations omitted). This period is tolled while a plaintiff is "actively exhausting his administrative remedies." Gonzalez v. Hasty, 651 F.3d 318, 322-24 (2d Cir. 2011). Moreau alleged that a defendant discriminated against him on April 8, 2010, and pursued his administrative remedies for 87 days. The statutory deadline for this claim expired in July of 2013, and Moreau filed his complaint much later, on December 27, 2013.
Moreau's remaining claim, alleging retaliation by three defendants on September 29, 2010, fails for lack of a plausible causal connection between his grievance and the defendants' alleged retaliation. See Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003). For example, an exhibit to the complaint contains a statement from the prison system that Moreau would have failed the practice test regardless of his performance on the essay, which was the portion of his test with which the defendants allegedly interfered.
We have considered all of Moreau's arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.