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COMMONWEALTH vs. MICHAEL L. CRAWFORD.
Present: WILKINS, ABRAMS, O'CONNOR, & GREANEY, JJ.
INDICTMENTS found and returned in the Superior Court Department on July 19, 1990.
The cases were tried before Herbert Abrams, J.
Willie J. Davis for the defendant.
Jane Woodbury, Assistant District Attorney (Daniel C. Mullane, Assistant District Attorney, with her) for the Commonwealth.
GREANEY, J. The defendant, Michael L. Crawford, was tried before a jury in the Superior Court on two indictments charging him with murder in the first degree in connection with the killing of his girl friend and their unborn child. The jury found the defendant guilty of involuntary manslaughter as to each death, and he was sentenced to consecutive terms of imprisonment at the Massachusetts Correctional Institution, Cedar Junction. On appeal, the defendant argues that the judge should not have admitted in evidence hearsay statements by the couple's child as spontaneous utterances, and, even if properly determined to be spontaneous utterances, the admission of the statements, when the child was available to testify, violated his constitutional rights to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. The defendant also argues that the judge erred by refusing to give the jury a missing witness instruction and by failing to instruct properly on reasonable doubt. We transferred the appeal to this court on our own motion and now affirm the judgments of conviction.
that rigor was fully established when he arrived at the victim's apartment sometime after 10 P.M., and that, generally, rigor takes from four to six hours from the time of death to develop.
The defendant did not testify at trial, but a tape recording of a lengthy statement he voluntarily made to police on July 10, 1990, while accompanied by an attorney, was played for the jury. In the statement, the defendant said he left the victim's apartment early in the afternoon [Note 2] of July 7, accompanied by his daughter. As they left, the victim was returning to the apartment. He took his daughter to a canteen truck operated by a friend, arriving there while it was still light. When it started to become dark, the defendant became concerned about keeping his daughter with him and sought to make child care arrangements. He was unable to reach his grandmother, with whom he sometimes left the child. He eventually went to the house of a friend of the victim, Stacey Galvez, who agreed to watch the child for a short time, until the child's maternal aunt or grandmother could pick her up. After that, the defendant returned to the canteen truck, stayed for awhile, and then left with a woman friend. Together they went to her apartment, where they watched videotapes and ate Chinese food before the defendant fell asleep on the couch at about 3 A.M. He learned of the victim's death the next morning at 9 o'clock when he called his grandmother.
with his daughter in the early evening. Riley had no watch that day and was unsure of the exact time.
Stacey Galvez agreed that the defendant brought Tiara to her house around 8:30 P.M., and asked Galvez to babysit for Tiara. Galvez made arrangements for Tiara's grandmother (the victim's mother) to come get Tiara. The defendant left. Tiara stayed at Galvez's house for about a thirty minutes, playing with her three year old son. Galvez had no discussion with Tiara.
Sometime after 9 P.M., the grandmother picked up Tiara. As she climbed into her grandmother's car, Tiara immediately said, "Daddy shot Mummy." (Tiara referred to the defendant as "Daddy.") She repeated this statement. After attempting to reach the victim by telephone, the grandmother drove to the apartment, let herself in with her set of keys and discovered the victim's body in the bedroom. As the grandmother ran out of the bedroom screaming, Tiara said to her, "Mummy's dead."
A neighbor, Yvonne Brown, who had heard the commotion, saw Tiara in the hallway. She did not know the child well. When the neighbor asked Tiara if she would be all right, Tiara responded, "Daddy . . . my Daddy killed my Mommy."
Detective John Parlon of the Boston police department was among the first police officers to respond to the scene. He asked Tiara what had happened in the apartment and she responded, "My Daddy shot my Mummy. Daddy said, `Give me the gun,' and then I heard a big noise. Then Daddy took me to Stacey's house in a car." Police officers investigating the case never questioned Tiara again. She did not testify at trial. Her statements to her grandmother, the neighbor, and Detective Parlon were admitted in evidence under the spontaneous utterance exception to the hearsay rule.
the judge, as he does here, only that the spontaneity requirement for the exception was not met. The judge held a voir dire on the motion at which all the witnesses expected to be called at trial on the statements testified. The judge had previously interrogated Tiara in open court and ruled that Tiara was a competent witness. The requirements for admission of the hearsay statements as spontaneous utterances were satisfied.
"Under the spontaneous exclamation exception to the hearsay rule, `a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.' Blake v. Springfield St. Ry., 6 Mass. App. Ct. 553 , 556 (1978). See Commonwealth v. McLaughlin, 364 Mass. 211 , 222-223 (1973). The statements `"need not be strictly contemporaneous with the exciting cause" . . . Wigmore on Evidence (3d ed.) Section 1750.' Rocco v. Boston-Leader, Inc., 340 Mass. 195 , 197 (1960). In determining whether an utterance meets the tests of admissibility, the trial judge `ought to be given broad discretion. . . . [A]nd only in clear cases . . . of an improper exercise of discretion should his ruling be revised.' Commonwealth v. McLaughlin, supra at 223, quoting Rocco v. Boston-Leader, Inc., supra. See Commonwealth v. Fuller, 399 Mass. 678 , 682 (1987)." Commonwealth v. Brown, 413 Mass. 693 , 695-696 (1992). Particularly when the declarant is a young child who remains in the company of the alleged perpetrator after a traumatic event, precise contemporaneousness is not required. Id. at 695 (child's statement made about five hours after exciting event qualified as spontaneous utterance).
the event, even if she did not see it. There was no error in the admission of the evidence as spontaneous utterances.
2. The defendant argues that, because Tiara was found competent by the judge, and apparently was available to testify, the Commonwealth's failure to call her denied him his constitutional rights to confront an important witness in violation of the Sixth Amendment and art. 12. These contentions were not made below. Although we may consider issues on appeal not raised at trial, the power to do so is rarely exercised, and is exercised only in response to a serious and obvious error, creating a substantial risk of a miscarriage of justice. Commonwealth v. Gabbidon, 398 Mass. 1 , 4-6 (1986). Commonwealth v. Freeman, 352 Mass. 556 , 563-564 (1967). That situation is not present here.
(a) It is clear that the defendant's rights under the Sixth Amendment were not violated by the admission of Tiara's extrajudicial statements. In a recent decision, White v. Illinois, 112 S. Ct. 736 (1992), the United States Supreme Court held that the admission of hearsay evidence under the spontaneous utterance exception to the hearsay rule did not violate the confrontation clause of the Sixth Amendment, despite the failure of the prosecution to produce the declarant at trial or to demonstrate unavailability. Id. at 741-744. The Court's decision rested in part on its perception that such evidence generally was trustworthy and that its exclusion would not promote the "integrity of the factfinding process." Id. at 743, quoting Coy v. Iowa, 487 U.S. 1012, 1020 (1988), and Kentucky v. Stincer, 482 U.S. 730, 736 (1987).
(b) Tiara's statements were volunteered to her grandmother before anyone other than Tiara (and the defendant) knew that the victim had been shot. In none of her statements identifying the defendant as the shooter and recounting events in the apartment did Tiara adopt facts suggested to her by an adult questioner. She spontaneously volunteered the information. The statements could be considered by the jury to be credible evidence implicating the defendant in the victim's death. See Commonwealth v. Brown, supra at 696.
The jury heard evidence that the defendant was at the apartment on the day the victim was shot, and that he had access to a gun. The door of the apartment was locked when the victim's mother arrived; the defendant had a set of keys. Evidence of suicide was nonexistent. The shot that killed the victim was fired from a distance of at least two feet and no gun was found at the scene. Several people testified that they spoke with the victim on July 7. There was no evidence that she was despondent or suicidal.
To the extent that doubt remained about events in the apartment after Tiara's statements were taken into account, that doubt arose, as was previously discussed, from an uncertainty about the child's basis of knowledge. It is obvious that the child was present in the apartment, but unclear whether she saw, or only heard, the shooting. Her statement to Detective Parlon ("Daddy said `Give me the gun.' Then I heard a loud noise"), suggested the possibility of an altercation between her father and mother, and left open some chance of accident. However, accident, was not, from what we can see, a live issue at trial, nor is it argued on appeal. In his statement to the police, given while he was accompanied by an attorney, the defendant maintained that he was not present at the apartment when the victim was shot. In his defense, he called several witnesses to substantiate his account of his movements. "Accident" was not mentioned in his closing argument. To bring that issue squarely before the jury, the defendant would have had to place himself in the apartment, a scenario which would have been inconsistent with his statement disclaiming his presence at, or any knowledge of, the shooting or the person responsible for it.
3. The defendant's final contentions concern jury instructions and can be dealt with briefly. The defendant requested that the jury receive a missing witness instruction to the effect that, because the Commonwealth had failed to call Tiara as a witness, they could draw the adverse inference that her evidence would have been unfavorable to the Commonwealth. The judge denied the request. Instead, defense counsel was permitted to argue to the jury that Tiara's failure to testify prevented them from seeing the most important witness in the case.
The adverse inference permitted by the so-called missing witness instruction is based on the premise that the party not calling an apparently favorable witness is aware that the witness may possess evidence adverse to the party declining to call the witness, who thereby avoids the issue by wilfully attempting to withhold or conceal significant evidence. See Commonwealth v. Schatvet, 23 Mass. App. Ct. 130 , 134 (1986). The instruction should be given only in clear cases and with caution. Id. See Commonwealth v. Franklin, 366 Mass. 284 , 294 (1974); Commonwealth v. Finnerty, 148 Mass. 162 , 167 (1889).
defendant as for the Commonwealth. It appears that the Commonwealth introduced Tiara's evidence through a properly applied exception to the hearsay rule to spare her the trauma of reliving in court the horrifying experience she had been exposed to when her father killed her pregnant mother. This is not a case in which the jury heard nothing from a witness the Commonwealth would have been expected to call. The jury heard the substance of Tiara's testimony in the form of her extrajudicial statements. There was no apparent basis for the inference the requested instruction would have suggested to the jury. The judge properly denied the request.
4. In his main instructions to the jury, the judge defined reasonable doubt in accordance with Commonwealth v. Webster, 5 Cush. 295 , 320 (1850), and went on to contrast the higher criminal burden of proof with the burden of proof that applies in a civil case. When the jury asked again during deliberations for a redefinition of reasonable doubt, the judge repeated the full Webster instruction. The defendant argues that the judge's reference, for comparison purposes, to the civil burden of proof in his main charge requires a new trial.
"To determine whether a definition of reasonable doubt accurately conveys the meaning of the term, it is necessary to consider the charge as a whole." Commonwealth v. Wood, 380 Mass. 545 , 548 (1980), quoting Commonwealth v. Watkins, 377 Mass. 385 , 388, cert. denied, 442 U.S. 932 (1979). See also Commonwealth v. Beverly, 389 Mass. 866 , 870-871 (1983). The proper language for instructing a jury on the concept of reasonable doubt comes from Commonwealth v. Webster, supra. See Commonwealth v. Gerald, 356 Mass. 386 , 390 (1969); Commonwealth v. Lanigan, 12 Mass. App. Ct. 913 , 915 (1981), cert. denied sub nom. Maloney, Superintendent, Mass. Correctional Inst. v. Lanigan, 488 U.S. 1007 (1989).
Webster alone. The jurors could not have been misled or confused as to the appropriate standard of proof. See Commonwealth v. Murphy, 415 Mass. 161 , 166-168 (1993).
[Note 1] At the time of the shooting, the male fetus weighed about two and one half pounds, was fifteen inches in length, and was between twenty-eight and thirty weeks in gestational age. The medical examiner testified that "[u]nder the right circumstances [the fetus] was viable, meaning it was old enough and had mature enough systems to survive outside of the mother, if delivered under appropriate circumstances."
[Note 2] The defendant told the police that he did not wear a watch, and, in explaining to the police his movements on July 7, 1990, he gave very imprecise estimates as to time.
[Note 3] The fact that Tiara's statement to Detective Parlon was made in response to his question, "[W]hat happened?," did not render the statement inadmissible. Commonwealth v. Fuller, 399 Mass. 678 , 682-683 & n.8 (1987).
[Note 4] As the defendant acknowledges, Commonwealth v. Bergstrom, 402 Mass. 534 (1988), on which he relies for his claim under art. 12, addresses facts and an issue very different from the facts and issue in this case. Bergstrom considered whether it was permissible, under art. 12, for a child complainant of sexual abuse to testify against the accused on closed circuit television rather than in the presence of the accused. Bergstrom neither addressed nor resolved the issue raised here by the defendant.

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art. 12
art. 12


The application to reopen the claim for service connection for an acquired psychiatric disorder is denied.
The application to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is denied.
Entitlement to service connection for a left shoulder disorder, including as secondary to service-connected disabilities, is denied.
Entitlement to service connection for a cervical spine disorder, including as secondary to service-connected disabilities, is denied.
Entitlement to a rating greater than 20 percent for left radial bone healed fracture, with impaired supination and pronation, is denied.
Entitlement to a rating greater than 10 percent for left radial bone healed fracture, with impaired flexion of the forearm, is denied.
1.  In an unappealed October 1982 rating decision, the RO denied service connection for an acquired psychiatric disorder; an unappealed August 1991 rating denied the Veteran’s application to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder.
2.  In an unappealed November 2012 rating decision, the RO denied service connection for PTSD.
3.  The evidence received since the August 1991 and November 2012 rating decisions as to the issues of entitlement to service connection for an acquired psychiatric disorder and PTSD is cumulative in nature and repetitive of facts that were previously considered.
4.  A left shoulder disorder is not attributable to service; a left shoulder disorder is not related (causation or aggravation) to a service-connected disease or injury.
5.  A cervical spine disorder is not attributable to service; a cervical spine disorder is not related (causation or aggravation) to a service-connected disease or injury.
6.  Left radial bone healed fracture, with impaired supination and pronation, is productive of limitation of supination to 30 degrees and pronation limited beyond the last quarter of arc.
7.  Left radial bone healed fracture, with impaired flexion of the forearm, is productive of pain on motion; flexion is limited to 130 degrees.
1.  The August 1991 and November 2012 rating decisions denying claims for service connection for an acquired psychiatric disorder and PTSD are final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017).
2.  New and material evidence has not been received to reopen the claims for service connection for an acquired psychiatric disorder and PTSD.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017).
3.  The criteria for service connection for a left shoulder disorder have not been met.  38 U.S.C. §§ 1101, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017).
4. The criteria for service connection for a cervical spine disorder have not been met.  38 U.S.C. §§ 1101, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017).
5.  The criteria for a disability rating in excess of 20 percent for left radial bone healed fracture, with impaired supination and pronation, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5213 (2017).
6.  The criteria for a disability rating in excess of 10 percent for left radial bone healed fracture, with impaired flexion of the forearm, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5206 (2017).
The Veteran served on active duty in the U.S. Army from March 1977 to March 1980 and from November 1987 to March 1988.
This case came before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.
The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).
In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran.  This letter explained the evidence necessary to substantiate the Veteran’s application to reopen the previously denied claims of entitlement to service connection, as well as the evidence necessary to substantiate the claims of entitlement to service connection and entitlement to increased disability ratings; the letters also explained the legal criteria for entitlement to such benefits.  The letters also informed him of his and VA’s respective duties for obtaining evidence.  The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA also has a duty to assist a veteran with the development of facts pertinent to the appeal.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim.  38 C.F.R. § 3.159(c)(4).
The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claims.  The Veteran was afforded VA examinations responsive to the claims for service connection and his claims for increased disability ratings.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).  The opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file.  The examination reports contain all the findings needed to assess entitlement to service connection or rate the Veteran’s service-connected disabilities on appeal, including history and clinical evaluation.  See 38 C.F.R. § 3.327(a) (2017); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007).
The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claims.  For these reasons, the Board finds that the VCAA duties to notify and assist have been met.
Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder and/or posttraumatic stress disorder (PTSD).
In general, rating decisions and Board decisions that are not timely appealed are final.  See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103.  If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156.
Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence.  “New” evidence is defined as evidence not previously submitted to agency decision makers.  “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold.  Shade v. Shinseki, 24 Vet. App 110 (2010).
New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).
If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits.  38 C.F.R. § 3.156(c).
If it is determined that new and material evidence has been submitted, the claim must be reopened.  The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Justus v. Principi, 3 Vet. App. 510 (1992).
The RO initially denied service connection for an acquired psychiatric disorder in October 1982; the initial claim for service connection of PTSD was denied in November 2012.  The Veteran did not appeal and the October 1982 and November 2012 decisions became final.  See 38 U.S.C. § 7105(c).
The October 1982 rating decision denied the Veteran’s claim for service connection of an acquired psychiatric disorder on the basis that there was no evidence indicating that an acquired psychiatric disorder was incurred in or caused by service or his service-connected left radial bone healed fracture; there was no record of complaints, treatment, or diagnoses related to an acquired psychiatric disorder during active service, and no evidence that the Veteran’s acquired psychiatric disorder was related to an injury or disease during service.  The Veteran filed an application to reopen, which was denied in an August 1991 rating decision.  The Veteran’s application to reopen was denied on the basis that the evidence was not new and material; although the medical evidence showed a current psychiatric diagnosis, there was still no medical evidence that the Veteran’s current psychiatric disorder was related to the Veteran’s service, including his service-connected left radial bone healed fracture.
Likewise, the November 2012 rating decision denied the Veteran’s claim for service connection of PTSD on the basis that there was no diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM), as published by the American Psychiatric Association and no verified stressor event.   The rating decision noted that the Veteran’s service treatment records and VA examination report were considered.
Evidence received since the August 1991 and November 2012 rating decisions includes private and VA treatment records, as well as a July 2014 VA examination report.  The July 2014 VA examination report found that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD and there was no link between the Veteran’s acquired psychiatric disorder and his service.  VA and private treatment records reflect that the Veteran has been diagnosed with depression and an anxiety disorder, but do not reflect that the Veteran’s acquired psychiatric disorder was related to service.  The Veteran re-iterated the same PTSD stressors that he had reported, and had been considered, in 2012, but did not provide any additional evidence with which to attempt to verify his statements.
The evidence submitted subsequent to the August 1991 and November 2012 rating decisions as to the issues of entitlement to service connection for an acquired psychiatric disorder and PTSD is not new and material.  Neither the VA nor private treatment records demonstrate that the Veteran’s acquired psychiatric disorder is related to his service.  These records also fail to demonstrate that the Veteran meets the diagnostic criteria for a diagnosis of PTSD.  At the time of the prior decisions, there was no medical evidence indicating that the Veteran’s acquired psychiatric disorder was causally or etiologically related to his service; the new medical evidence of record reflects that the Veteran has been treated for an acquired psychiatric disorder, variously diagnosed as depression, anxiety, and polysubstance abuse, but does not reflect that any acquired psychiatric is related to the Veteran’s service.  The new medical evidence of record also fails to show that the Veteran meets the diagnostic criteria for PTSD; likewise, the Veteran’s claimed stressors remain unconfirmed.  The evidence is cumulative of the evidence already of record at the time of the last denials. The Veteran has not provided any new and material evidence demonstrating that his acquired psychiatric disorder is due to a disease or injury during service, or that he has been diagnosed with PTSD related to his military service.
In sum, the evidence submitted as to the Veteran’s claims of service connection for an acquired psychiatric disorder and PTSD is cumulative rather than new and material.  Although the threshold for reopening a claim is low, the evidence presented in this case is insufficient to reopen the claims.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017).  To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310.
Entitlement to service connection for a left shoulder disorder and a cervical spine disorder, including as secondary to service-connected disabilities.
Based on the evidence of record, the Veteran’s claims of entitlement to service connection for a left shoulder disorder and a cervical spine disorder, including as secondary to service-connected left radial bone healed fracture must be denied.
The Veteran has a current disability related to his left shoulder and cervical spine, treatment records from 2011 show diagnoses of left shoulder tendonitis and cervical spine degenerative arthritis.
With regard to in service incurrence, no left shoulder or cervical spine disabilities were noted or identified during service or within one year of separation.  Additionally, there is nothing to suggest that there were characteristic manifestations sufficient to identify the claimed left shoulder tendonitis or degenerative arthritis of the cervical spine with spondylosis and disc herniation during service or within one year of separation.  38 C.F.R. § 3.303(b).  However, the Veteran contends that his symptoms began in service. Additionally, regarding secondary service connection, the Veteran is service-connected for residuals of a left radial fracture.
Nonetheless, there is no competent evidence of a relationship between the Veteran’s current left shoulder tendonitis or degenerative arthritis of the cervical spine with spondylosis and disc herniation and active service or his residuals of a left radial fracture.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran’s service and the disability).
Review of the record shows that neither the Veteran’s treating providers, nor the July 2014 VA examiner, have related the Veteran’s left shoulder tendonitis or degenerative arthritis of the cervical spine with spondylosis and disc herniation to his service or his service connected left radial bone healed fracture, or were aggravated thereby.  In this regard, the Board observes that the July 2014 VA examination reports and contemporaneous medical opinions clearly concluded that the Veteran’s left shoulder condition and cervical spine conditions are less likely than not related to the Veteran’s service or a service-connected disability.  The VA examiner noted that there was no biomechanical correlation between the Veteran’s left radial bone healed fracture and his left shoulder or cervical spine which could account for the etiology or aggravation of the Veteran’s cervical spine and left shoulder disorders.  Likewise, the VA shoulder examiner noted that the Veteran’s left shoulder tendonitis was secondary to degenerative joint disease of the shoulder, and that the Veteran’s left shoulder tendonitis could not be caused or aggravated by the Veteran’s service-connected left radial bone healed fracture because there was no mechanical relationship between the shoulder and elbow.   Additionally, the July 2014 VA medical opinions found no relationship between the Veteran’s left shoulder disability and cervical spine disability and his service.
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).
To the extent that there are lay statements, including those of the Veteran, asserting a connection between the Veteran’s current left shoulder problems and his cervical spine condition and either his active service or his service-connected residuals of a left radial fracture, the Board finds that the determining the etiology of the Veteran’s left shoulder tendonitis and degenerative arthritis of the cervical spine are beyond the competence of a lay person. While the Veteran, and other lay persons, are competent to report pain, and other observable symptoms, related to the left shoulder and cervical spine, the cause of those symptoms and whether those symptoms are aggravated by another disability, are medical questions that require medical training, knowledge and expertise. Thus, these opinions are not competent. Further, even if the statements were to be found competent, the Board finds that the probative value of the general lay assertions is outweighed by the specific, well-reasoned opinions of the July 2014 VA examination report and the clinical evidence of record. The VA examiners explained the reasons for the conclusions reached and based the findings on an accurate characterization of the evidence of record.
For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a left shoulder disability and a cervical spine disability, and the claims are denied.
Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the service-connected disabilities on appeal have not materially changed and uniform evaluations are warranted for the rating period on appeal.
In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination.  See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.
In this case, documents of record establish that the Veteran is right handed; the Veteran reported that his dominant hand is his right hand at the November 2016 and April 2018 VA examinations.  See 38 C.F.R. § 4.69.
The Veteran’s left radial bone healed fracture, with impaired supination and pronation, is rated as 20 percent disabling pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5213.  See 38 C.F.R. § 4.20.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27 (2017).  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
Diagnostic Code 5213 provides for a 20 percent rating, for either the major or minor wrist, where there is loss of pronation beyond the last quarter of arc or there is bone fusion with hand fixed near the middle of the arc or moderate pronation; a 20 percent disability evaluation is also available for the minor wrist where there is loss of pronation beyond the middle of arc or loss of pronation such that the hand is fixed in full pronation.  A 30 percent is available for the minor wrist where there is loss of pronation due to bone fusion with the hand fixed in supination or hyperpronation.
The Board finds that the Veteran’s disability picture more nearly approximates the criteria for the current, 20 percent disability rating for left radial bone healed fracture, with impairment of supination and pronation.  According to the July 2014 VA examination report, the Veteran had supination to 30 degrees with limitation of pronation with motion lost beyond the last quarter of the arc. At the November 2016 and April 2018 VA examinations, he had supination to 35 degrees and 30 degrees, respectively, and pronation to 30 degrees.  The Veteran reports experiencing pain on motion with limitation of motion during flare-ups, and the Board finds that these reports are credible and consistent with the physical findings.  However, his functional impairment is represented by the currently assigned, 20 percent disability rating; the Veteran neither manifests nor describes limitation of motion more nearly approximating loss of pronation due bone fusion with the hand fixed in supination or hyperpronation.  The fact that the Veteran has pain does not warrant a higher evaluation unless those symptoms actually limit motion or functional use; at both examinations, he retained functional motion of the left elbow and there was no evidence of ankylosis or muscle atrophy.  There was also no crepitus, and muscle strength testing was normal.  Similar findings were reported in the Veteran’s VA treatment records.
For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s symptoms have not more nearly approximated the criteria for a rating in excess of 20 percent for left radial bone healed fracture, with impairment of supination and pronation.
The appropriate diagnostic codes for evaluating limitation of motion of the elbow joint are Diagnostic Codes 5206 and 5207, applicable to limitation of flexion and extension of the elbow, respectively.  The Veteran’s left radial bone healed fracture, with impaired flexion, is rated as 10 percent disabling pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5206.
Under Diagnostic Code 5206, a 10 percent rating is warranted for either the major or minor elbow where there is forearm limitation of flexion to 100 degrees.  Under Diagnostic Code 5207, a 10 percent rating is warranted for either the major or minor elbow where there is forearm limitation of extension to either 45 or 60 degrees.  For a 20 percent disability evaluation, there must be limitation of forearm flexion to 90 degrees (Diagnostic Code 5206), or limitation of forearm extension to 75 degrees (Diagnostic Code 5207).  For a 30 percent disability evaluation, there must be limitation of forearm flexion to 70 degrees (Diagnostic Code 5206), or limitation of forearm extension to 90 degrees (Diagnostic Code 5207).  For the next higher, 40 percent disability evaluation, there must be limitation of forearm flexion to 55 degrees (Diagnostic Code 5206), or limitation of forearm extension to 100 degrees (Diagnostic Code 5207).  For the highest, 50 percent disability evaluation, there must be limitation of forearm flexion to 45 degrees (Diagnostic Code 5206), or limitation of forearm extension to 110 degrees (Diagnostic Code 5207).  See 38 C.F.R. § 4.71a, Diagnostic Codes 5206-5207.
The Board finds that the Veteran’s disability picture more nearly approximates the criteria for the current, 10 percent disability rating for left radial bone healed fracture, with impairment of flexion.  According to the July 2014 VA examination report, the Veteran had range of motion to 130 degrees flexion on the right, with extension limited to 5 degrees.  At the November 2016 and April 2018 VA examinations, he had range of motion to 130 degrees flexion and extension to 15 degrees.  The Veteran reports experiencing pain on motion with limitation of motion during flare-ups, and the Board finds that these reports are credible and consistent with the physical findings.  However, his functional impairment is represented by the currently assigned, 10 percent disability rating; the Veteran neither manifests nor describes limitation of motion more nearly approximating limitation of flexion to 90 degrees or extension to 75 degrees.  As noted, the Veteran’s pain does not warrant a higher evaluation unless those symptoms actually limit motion or functional use; at both examinations, he retained functional motion of the left elbow and similar findings were reported in the Veteran’s VA treatment records.
For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s symptoms have not more nearly approximated the criteria for a rating in excess of 10 percent for left radial bone healed fracture, with impairment of flexion.


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On February 9, 2017, the United States Court of Appeals for the Ninth Circuit rendered a decision in State of Washington v. Trump, No. 17-35105 [PDF version]. The case regarded the U.S. government's appeal of the temporary restraining order (TRO) issued by the United States District Court for the Western District of Washington [PDF version] against portions of President Donald Trump's Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” [PDF version]. The Ninth Circuit denied the Government's emergency motion for a stay of the TRO pending appeal.
Before reading this article, please see my full article on the Ninth Circuit decision to learn about the court's reasoning [see article]. Please also see my discussion of the legal underpinning of the Executive Order [see blog]. In this post, I will offer my analysis and opinion of the decision, as well as how I believe that the Trump Administration should proceed.
In a previous blog post, I defended the legality of the contested provisions of the Executive Order except for its application to lawful permanent residents (LPRs) [see blog]. Accordingly, I disagree with most aspects of the Ninth Circuit's decision to deny the Government's stay motion against the temporary restraining order (TRO) against those aspects of the Executive Order. Furthermore, I would be troubled to see certain aspects of the Ninth Circuit's reasoning on the merits make it into a precedent decision by either the Ninth Circuit or ultimately, the Supreme Court of the United States. I will offer a non-comprehensive overview of some of the aspects of the decision that I find most troubling.
The decision by the Ninth Circuit omitted any discussion of section 212(f) of the Immigration and Nationality Act (INA). We recently posted a detailed examination of the statute [see article] and how it applies to the Executive Order [see blog]. Section 212(f) is the statute under which President Trump issued his Executive Order. The provision gives the President broad authority to suspend the entry of any alien or of any class of aliens if the President determines that the entry of such alien or class of aliens would be detrimental to the interests of the United States. As a result of the failure of the Ninth Circuit to analyze the statute, which empowers the President to suspend the entry of individual aliens and classes of aliens, it is difficult to ascertain why the Ninth Circuit offered so little deference to the President's determination.
This problem was discussed in detail by Josh Blackman, a noted law professor at South Texas College of Law Houston (note that Blackman states in the article that he disagrees with the Executive Order as a matter of policy, highlighting that one can disagree with aspects of the Ninth Circuit decision while also disagreeing with President Trump's Executive Order). Blackman noted that in a concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) [PDF version], Justice Robert Jackson explained that the President's authority is “at its maximum” when acting “pursuant to an express or implied authorization of Congress.”1 Yet, in its decision, the Ninth Circuit applied very high scrutiny to aspects of President Trump's Executive Order, without explaining the rationale behind its application of that standard of review. Furthermore, as one will find upon reading our section 212(f) article, courts have consistently found that section 212(f) recognizes statutorily the President's broad authority to suspend entry by proclamation.
One of the most concerning aspects to me about the decision is the Ninth Circuit's discussion of standing. The Ninth Circuit found that the states of Washington and Minnesota had standing to file suit challenging the Executive Order primarily based on the States' claims that “the Executive Order causes a concrete and particularized injury to their public universities.” Specifically, the Executive Order would make it impossible for visa-holding faculty members and students who are in the United States to depart and then return and for those outside of the United States to return (under most circumstances). It is certainly debatable as to whether the resulting alleged “injury” incurred by public universities is sufficient to establish standing to contest the Executive Order.
It is one thing — debatable as it may be — to argue that Washington has standing based on an injury to its public universities insofar as the Executive Order affects its already-admitted students and current faculty who already have visas. It is another thing entirely to state that universities can have standing based on not being able to consider for admission or employment certain potential alien student or potential faculty members who theoretically would apply but for the Executive Order. “Attractive student candidates” and potential faculty members from the seven named countries covers aliens without any current ties to the United States. Potentially, millions of aliens all across the world could be considered potential students or faculty members of American colleges and universities. It is unclear what limitations the Ninth Circuit recognizes to its standing determination, which seemingly could be extended to allow any number of parties to challenge any restrictive immigration policy on the basis that it could prevent unnamed potential students, professors, or other employees from coming to the United States. Regardless of the ultimate decision of the courts on this issue, I hope that they greatly narrow this rather sweeping conception of standing to challenge immigration restrictions.
The Ninth Circuit's reasoning that led it to conclude that Washington was likely to prevail across-the-board on its due process claims is, in my opinion, flawed. However, I will start by noting that I agree that Washington was likely to prevail on its due process claims with regard to lawful permanent residents (LPRs) for reasons I discussed in my blog on the legality of the Executive Order [see blog]. There is ample precedent that an LPR is entitled to due process beyond that which is afforded to an alien who has not been admitted for permanent residency. While section 212(f) allows the President to suspend the “entry” of aliens, as I noted, LPRs are usually not considered to be making a new entry — or under current law, seeking admission — when returning to the United States from a temporary trip abroad. Indeed, that the White House counsel issued a legal opinion that the Executive Order does not apply to LPRs [see article]. However, the Ninth Circuit did not agree with the Government that opinion by White House counsel functioned to preempt further litigation on the LPR issue because it was not binding on the various agencies charged with implementing the Executive Order. On this point I see the Ninth Circuit's concerns, albeit while noting that the Ninth Circuit has the option of upholding an injunction against only that portion of the Executive Order may be applicable to LPRs, such as what multiple Federal district courts have already done.
Unfortunately, the Ninth Circuit did not stop while it was ahead, and instead found that non-LPRs — including potentially those in the United States unlawfully — are entitled to due process to a degree to which is not supported by the cases that the Ninth Circuit on. In his post, Blackman noted that the Ninth Circuit did not adequately summarize Justice Antony Kennedy's concurring opinion in citing to Kerry v. Din, 576 U.S. ___ (2015) [PDF version] [see article]. The Ninth Circuit cited to Justice Kennedy's stating that U.S. residents or institutions petitioning for an alien may have procedural due process rights of their own to assert. Of relevance to the issue of the due process rights of the aliens themselves, however, Ninth Circuit failed to acknowledge that Justice Kennedy held that it was not necessary to reach and did not reach the question of whether the citizen-petitioner could assert the existence of procedural due process rights of the alien seeking a visa, because the State Department did not in any event violate procedural due process in denying a visa based on national security concerns without disclosing reasons for the denial.2 Interestingly, Justice Kennedy cited to the Supreme Court decision in Kleindienst v. Mandel, 408 U.S. 753 (1972) [PDF version], as support of his position of deferring to the Executive Branch (specifically the Department of State's manner of denying a visa) on this issue, whereas the Ninth Circuit cited to Mandel as evidence that the Executive Order was in fact reviewable.
The Ninth Circuit also cited to cases that we have discussed previously. For example, the decision cites to Landon v. Plasencia, 459 U.S. 21, 33-34 (1982) [PDF version], shortly after suggesting that aliens seeking initial admission may be entitled to due process in being denied entry under the Executive Order. The Ninth Circuit says of Landon that “[t]hese [due process] rights also apply to certain aliens attempting to reenter the United States after traveling abroad.” Indeed, Landon does apply to LPRs, however, as we noted, it explicitly does not apply to non-LPRs [see section].
Blackman notes an interesting precedent Ninth Circuit decision that was not addressed by the court in the instant case: Angov v. Lynch, 788 F.3d 893 (9th Cir. 2013) [PDF version]. Angov cited to another case we discussed in our analysis of section 212(f), Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 73 S.Ct. 625 97 L.Ed. 956 (1953) [PDF version], in holding that aliens who had entered the United States were entitled to due process in proceedings. However, aliens who had not entered the United States, or in current parlance are applying for admission, are not entitled to such due process. Significantly, the Ninth Circuit in Angov quoted from its previous precedent decision in Kwai Fun Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004) [PDF version], in order to make a critical distinction of particular relevance to review of the Executive Order: “[A]n alien seeking admission has not 'entered' the United States, even if [he] is in fact physically present.” Furthermore, the Ninth Circuit in Angov also cited to Landon to support the assertion that aliens endeavoring to enter the United States are not entitled to due process in entering.
In a final note for this section, the Ninth Circuit attested that the district court that issuing the temporary restraining order (TRO) against the Executive Order had held that Washington was likely to prevail on its due process argument. A careful examination of the district court decision finds that the court did no such thing. In fact, the district court only offered arguments in favor of Washington having standing, and offered no explanation as to why Washington was likely to prevail on the merits. Even for a TRO issued expeditiously, this omission was glaring. It is unclear why the Ninth Circuit read something into the district court TRO that is simply not there.
The Ninth Circuit reserved the question of whether Washington is likely to prevail on its religious discrimination arguments — those being that the Executive Order, formulated with the intent to disfavor Muslims seeking entry, violates the Establishment and Equal Protection clauses of the United States Constitution.
To be sure, President Trump made a number of egregious statements during the campaign which I have addressed in detail on this site [see e.g. post on vetting; post on his victory]. However, President Trump's Executive Order is, in my opinion, legal on the face (excluding its initial application to LPRs) and in no way orders the implementation of a “religious ban.” For an understanding of why it is not a religious ban, please see my detailed post examining the issue with regard to the now-defunct NSEERS program, which required certain individuals from 25 countries — mostly Muslim-majority countries — to follow certain registration requirements post-admission [see article]. So long as he is President, President Trump's campaign statements cannot preclude him from using the powers of the presidency in a lawful way. Were he to endeavor to use section 212(f) to suspend the entry of aliens by religious affiliation, the issue should be adjudicated at such time.
As a final note, I have discussed before, and in detail, how favoring certain classes of people eligible for refugee status is in accord with both the law and past precedent [see blog]. Religious persecution is a statutorily specified ground under which an individual can qualify as a “refugee” [see blog].
The Ninth Circuit held that the Government must establish that an alien from one of the seven countries had previously “perpetrated a terrorist attack in the United States” In order to justify the necessity for the immediate implementation of the Executive Order. This is a peculiar standard for a number of reasons. Firstly, it seems peculiar to demand that Americans be subjected to a terrorist attack before the President can act in the interest of national security to prevent such attacks from occurring. Secondly, as I noted in my previous post, a number of individuals from the seven specified countries have been arrested, and even convicted, on terrorism-related charges. That they did not manage to perpetrate any attacks does not seem to be a compelling argument against the President's exercise of his section 212(f) authority.
It must be noted that the Ninth Circuit is not the only one that has made questionable decisions of late. I have already harshly criticized the White House's bungled implementation of the Executive Order, and I have done so as someone who supports the underlying goals of the policy [see blog]. The new revelation that the White House has posted error-filled versions of Executive Orders on its website is hardly an encouraging sign as to its organization and process.5 During the litigation, President Trump has shown remarkably poor impulse control, continuously railing against individual judges on Twitter and in press statements, and often foreshadowing contradictory legal strategies that the lawyers at the Department of Justice have not decided on. The bungled implementation of the Executive Order has already invited judicial scrutiny and threatened bad precedents. The last thing President Trump should be doing is further incentivizing judges to rule against the lawful aspects of his Executive Order due to his continued use of campaign-style rhetoric. Instead, if the President so desires, he can offer measured and reasonable defenses of his Executive Order, just as he did in a recent address [see blog].
Now that his Attorney General, Jeff Sessions, is in place, it is important for President Trump to take a step back and allow the experts he has appointed to key posts to defend the legality of his immigration action. If he fails to do so, his rash actions may cause further long-term damage to our system of immigration laws.

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Most of the criminal charges mentioned are in the Health and Safety Code (Sections 11357-11362.9, 11362.7-11362.83, 11377-11382.5), the Vehicle Code, or the Penal Code.
You should have a supporter (a friend or relative) contact a bail bondsman to try to get you released. Unless you are able to put up the full amount of the requested bond as collateral to guarantee that you do not flee, you will have to use the services of a bail bondsman. In order to post bond for you so that you can get out of jail, it is likely that the bail bondsman will charge you a fee of nearly 10% of the bond. This fee is payment for the bail bondsman's service, and will not be refunded, even if your charges are dismissed or dropped.
If you get a citation or notice to appear, you have to appear in court. If the criminal court is very far from you, or in another state, you can try calling the relevant county Public Defender's office to see if the court can hold the first hearings without you, or if you are eligible for judgment by mail. You will probably have to attend every court appearance or the judge can issue warrant. In the vast majority of cases, simply faxing or mailing in your recommendation and other documents is insufficient. In any event, if you are unable to make a court date, be sure to contact the court by telephone or mail to let the court know your plans.
If the citation says "on or before" a certain date, call the relevant criminal court if you have questions about appearing on a specific day, or simply walk into court and present your citation to the court clerk to try to get on the docket that day.
Arraignment is when the judge will ask you to plead - Guilty or Not Guilty. Show up well-dressed and early to your arraignment (ideally a half-hour before), and make contact with the Public Defender on duty. Be polite. The Public Defender on duty will only represent you at this appearance, and you will likely receive a different attorney for the duration of your case after pleading Not Guilty.
Your recommendation (and any other relevant recommendations for collective situations).
A copy of People v. Wright, a California Supreme Court decision that reiterates the right of a qualified patient to possess, cultivate or transport at least 8 oz. of medical cannabis and 6 mature or 12 immature plants and to assert the protections of the Compassionate Use Act and S.B. 420 as an affirmative defense to related charges.
Give these documents of the Public Defender, note the quantities involved in your case, and explain that you are a qualified medical marijuana patient. Then, ask the Public Defender to bring your documentation to the District Attorney (D.A.) on duty before your arraignment and ask the D.A. to dismiss the case without even having to plead.
Sometimes this will work and the D.A. will decline to pursue charges. Otherwise, you will be arraigned. If you qualify, you will be assigned a Public Defender to represent you for the duration of the case.
Most Public Defenders are very competent individuals who work hard at their jobs and will represent you intelligently and vociferously. However, some Public Defenders will be hindered in their ability to represent you well by high workloads, lack of knowledge of medical marijuana laws, and active bias against medical marijuana (especially in some of the unfriendlier counties). If a Public Defender is very difficult to work with, you may want to consider switching attorneys, either to a private attorney, or another Public Defender.
Possession of small amounts of processed bud and plants, especially Possession of < 1 oz. can usually be dealt with more quickly than other cases and you should hopefully be able to use a Public Defender for the whole case, unless you happen to have a particularly unfriendly Public Defender.
In cases that involve very high processed bud or plant numbers, or very complicated sets of facts regarding the validity of a recommendation or significant evidence of marijuana sales, it is more likely that a Mower Motion will be insufficient and the cases will proceed to trial. In these cases, if you do not feel that your Public Defender has demonstrated enough knowledge or interest in the medical marijuana information you have provided, you may want to seek out a specialist in medical marijuana law. However, take care not to assume immediately that your Public Defender lacks knowledge, and instead evaluate his or her performance in court and in communication with you.
When you and your Public Defender clearly disagree over the legal strategy decisions in your case, and he or she does not appear to want to represent you in the way that you want, it may be time to switch attorneys. However, before doing so, ask your Public Defender what the reasoning is behind her or his decisions so that you can evaluate it, as opposed to assuming a bias or lack of desire to represent you. Another intermediate step you can take is to ask your Public Defender to contact ASA's Chief Counsel to discuss legal strategy and the case.
DUI-Marijuana cases tend to be very fact-specific, and more similar to DUI-Alcohol cases than other marijuana charges, and there are attorneys who specialize in DUI cases. You may want to use www.martindale.com or Google using the search terms "DUI", "marijuana", and your region to find an appropriate specialist.
Here is a list of private attorneys who do marijuana work from the California NORML website. ASA does not endorse the expertise and skills of any of these attorneys specifically and has no control over the list, but it is a useful place to start your search for a private attorney. No matter what, you should find out as much you can about a prospective attorney before retaining them.
Your plea is when you answer Guilty or Not Guilty to your charges. If you want to continue fighting your case, plead Not Guilty. All other pleas as essentially a guilty Plea.
A plea bargain is when you plead guilty in exchange for a pre-arranged sentence. Some attorneys will try to pressure patients into accepting a plea bargain offer. If you were within the local guidelines and had an current recommendation, you can assert your patient status and take your case to trial. If your case is complicated, you should use the following tips to evaluate whether to accept a plea bargain offer.
The likelihood of getting convicted, given the facts you have shared with your attorney and the defenses they intend to present.
After your Arraignment, your attorney will representing you at several hearings at which they can argue motions, and set the parameters for trial.
You should ask your attorney to raise the medical cannabis defense at your Preliminary Hearing by making a 'Mower Motion' (aka 'Section 995 Motion to Dismiss'). In order to get your case dismissed using a Mower Motion, your attorney must simply show evidence of your status as a qualified patient or primary caregiver, such as your recommendation or State identification card.
Make an appointment with your attorney to discuss your case at least several days before your Preliminary Hearing. Present a printed copy of one of these sample Mower motions (Motion_to_dismiss_Margolin.pdf, Motion_to_dismiss_Figueroa.pdf) to give her or him a model off of which to work and email the links as well, if appropriate. Additionally, you can bring a copy of People v. Wright.
If your Public Defender is being unhelpful, or if for some reason you end up representing yourself (working "pro se"), you should know that you can make an "informal request" to dismiss the complaint "in furtherance of justice" under Cal Penal Code § 1385. See People v. Konow 32 Cal.4th 995, 1022 (2004). To do so, simply present the previously discussed evidence that you are a qualified patient or caregiver.
If asserting the medical cannabis defense is running into major obstacles, your lawyer should also think about challenging the search in various ways, either in these preliminary proceedings, or at trial. For more information about whether or not law enforcement performed a "Good Search" on you, see this document prepared by ASA ally, Alexis Wilson. However, it is important to note that, with the April 23, 2008 Virginia v. Moore decision by the Supreme Court, even if law enforcement breaks California search and seizure law, the search may later be ruled constitutional under federal law, and the evidence seized may be admitted. Additionally, in the 2008 California Court of Appeal decision (1st District), People v. Hua, the court found that law enforcement agents conducted an unreasonable search and seizure when they entered the defendant's home without a warrant based only on their observation that someone inside was smoking cannabis.
Attorneys looking for more information, please see Pretrial Proceedings of "How to Defend a Medical Marijuana Case".
Most cases of patients charged with crimes in California are dismissed long before the trial stage, but if you are dealing with a particularly stubborn judge or D.A., or there are other complicating factors, feel free to email ASA's Legal Services Coordinator and include what steps your attorney has taken so far, and when the trial is set to start. If you are particularly concerned with the knowledge or the performance of your attorney, one of the services that we offer is to have our Chief Counsel reach out to your attorney to confer about trial strategy and general medical cannabis law. If this is something you might be interested in, please also include the name and number of your attorney in your email to the Legal Services Coordinator. We do not have the resources to respond to every request.
Additionally, you should also provide your attorney with a copy of "How to Defend a Medical Marijuana Case".
Call the criminal court that signed the warrant, and ask the court if you can schedule a specific day to come in for your arraignment. Because of the warrant, you may have to agree to put up money as a surety bond when you appear, so make sure you ask about that on the phone. You should also call the county Public Defender's Office to see if they can get the warrant discharged.
If your recommendation is expired or you do not have a recommendation, you should go to a doctor in the hopes of getting a current recommendation son. Your case could still be dismissed.
According to the ASA How to Defend a Medical Marijuana Case manual, a recommendation need not necessarily be obtained prior to the charged conduct, where "exigent circumstances" explain a defendant's failure to obtain a doctor's recommendation before his arrest.
California Health & Safety Code § 11362.5(d) explicitly states that your doctor's recommendation does not have to be in writing. Your attorney may also be able to introduce evidence that you were under an oral recommendation, if your doctor approved your usage of medical marijuana, but no written record exists.
Finally, for patients with expired recommendations, your lawyer should present People v. Windus, a very strong case from 2008. In this case, the Court of Appeal (2nd District) held that a medical marijuana recommendation does not expire after a year, even if the doctor has requested annual visits.
If your Public Defender will not or can not appeal your case to your local Court of Appeal, you can hire a private attorney or represent yourself. Visit the California Courts website and put your city or zip code in the 'Court Locations' box - it will return your appellate district, among other information. Then contact the California Appellate Project office for the First, Second, Third & Fifth, Fourth, or Sixth Districts. However, the Public Defender should at least file your notice of appeal for you.
Except in certain situations, you must file your Notice of Appeal (Misdemeanor or Felony) within 60 days of the judgment on your case. Make sure you look at the California Rules of Court, especially Title 8, Chapter 3, Rules 8.304 & 8.308, to check all of the procedures you must follow. An appeal is not the same as another trial, and you will need to have an appealable issue of law, such as the judge making the wrong decision on a search and seizure (4th Amendment), evidentiary, or due process violation issue.
If you have good evidence that you were not competent when you made your plea, or did not understand the ramifications of your decision, you can try to make a Motion to Withdraw your Plea, although most of these motions are unsuccessful. If you make this decision after your judgment has been entered, then you can appeal the plea using a habeas corpus petition, which should include an appealable issue of law, such as the judge making the wrong decision on a search and seizure (4th Amendment), evidentiary, or due process violation issue.
Here is some information about the expungement of records process and here is a Petition for Dismissal form to use. Additionally, both medical marijuana patients and non-patients convicted of personal use offenses have their convictions automatically erased after two years, according to Health & Safety Code § 11361.5 & 11361.7. In fact, according to § 11361.7(c): "Any person arrested or convicted for an offense specified in subdivision (a) or (b) of Section 11361.5 may, two years from the date of such a conviction, or from the date of the arrest if there was no conviction, indicate in response to any question concerning his prior criminal record that he was not arrested or convicted for such offense."
Actually, while S.B. 420 includes some restrictions on primary caregivers who are less than 18 years old, there are no prohibitions at all on minors getting a recommendation, and it appears that minors have the same rights to assert a medical marijuana affirmative defense in court as any other patient.
A patient who is less than 18 years old is only really restricted slightly in the process that she or he has to go through to get the non-mandatory state ID card. According to Cal. Health & Safety Code § 11362.72(a), when a minor patient submits an ID Card application, the county health department must contact a parent or other person with legal authority to make decisions to verify the accuracy of the information. If the D.A. is making your age an issue, print S.B. 420 for your attorney to present, and note that no recommendation restrictions exist.
See Safe Access Now's list of local guidelines. Any location not listed defaults to the state guidelines of 8 oz. or less of medical cannabis + six mature or 12 immature plants. In collective situations, multiply the applicable guidelines by the number of patient recommendations held.
If the D.A. is charging you with felony possession with intent to sell, and has so-called "physical evidence" of that intent, such as scales, baggies, or "pay-owe sheets", be prepared to explain how these seized items were actually used for legitimate medical purposes. Additionally, courts will have a harder time relying on "expert testimony" of a police officer that the presence of certain items create a presumption of an intent to sell after the 2007 People v. Chakos decision. In this ruling, the California Court of Appeal (4th District) found that "expert testimony" of a police officer that six ounces of cannabis, a scale, baggies, and a small sum of cash was insufficient to uphold a conviction for marijuana distribution because the police officer lacked understanding of the patterns of use of cannabis by qualified patients and was therefore unqualified to testify as an expert.
If you believe that the D.A. is wrongly calculating how much processed medical cannabis (bud) you have, please note that "only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana" under S.B. 420 (Cal. Health & Safety Code § 11362.77(d) ).
If your doctor has given you permission to use more medical cannabis than is prescribed by your local guidelines, especially because you cook with your medical cannabis, it is important to note this in your motion. According to SB 420 patients may possess more medical cannabis than the guideline amounts with permission from their doctors. Cal. Health and Safety Code § 11362.77. The best evidence of this permission is when the doctor has written a note to this effect directly on your recommendation, but sometimes a doctor will give permission orally, without a written record. In such cases, it is helpful to ask the doctor if he/she would be willing to testify to such permission at one of your hearings.
Finally, if you are collectively cultivating/possessing as a group of patients, it is important to provide all of the relevant recommendations in this motion. However, note that you should always receive express permission to do this from the other patients and you should inform them that all patients claiming to be part of a collective should be aware that they are possibly opening themselves up to similar charges by including themselves in your legal action.
The judge may demand that your doctor testify in order to authenticate your recommendation and prove that you are "qualified patient." A court appearance by the doctor is not actually necessary and you should not need to do this to win your case. In People v. Jones, a 2003 CA Appellate Court (3rd District) case, the court held that a defendant's testimony, confirming an "approval" or "recommendation" by a doctor to use medical cannabis, is sufficient, without verification from the doctor, for the jury to determine the defendant's status as a medical cannabis patient.
Instead of forcing your doctor to testify, get your recommendation authenticated and present it at court. You do not even need a notary to do so. Simply get the doctor to sign a declaration of the authenticity of the recommendation as a business record. As a record kept in the normal course of business, your authenticated recommendation should be considered admissible hearsay evidence and should be admitted. The doctor should make a certain number of copies of the recommendation in an envelope, and sign the declaration and tape it to the front of the envelope. For more on the authentication procedure, see the California Evidence Code.
If your judge still insists on a doctor's testimony, it may be helpful if the doctor does make an appearance, or at least creates a secondary affidavit that states that he or she diagnosed you and found it reasonable that cannabis could relieve the symptoms of your condition.
Also, whether it is a doctor's testimony or yours, you should also be able to refuse to disclose details of your medical records or history, as there is established caselaw protecting your medical records and the confidentiality of the doctor-patient relationship in exactly these circumstances. See Bearman v. Superior Cour of Los Angeles (2004).
In addition to the other documentation that you give your lawyer, also print and present Attorney General Opinion 03-411 which states that the Compassionate Use Act also exempts the use of concentrated cannabis (C.C.), or "hash," from criminal sanctions.
Although this is not one of the listed crimes that patients are specifically exempted from in S.B. 420, its omission was clearly not deliberate. The Court of Appeal (4th District) in Garden Grove v. Superior Court (p. 19-20) said that Vehicle Code 23222(b) should not be applied to medical marijuana patients with up to date recommendations. Print Garden Grove v. Superior Court and present it with the other materials to your attorney.
In court the burden of proof will be on the officer to prove that you were impaired.
Generally, most blood and urine tests test for the simple presence of cannabis metabolites and it is up to the jury to determine impairment. If your lawyer is attempting to argue that your ng/ml amount does not constitute impairment, you should give this report on Science-Based Per Se Limits for Driving under the Influence-Marijuana to your attorney. This report suggests that impairment may not occur until 3-5 ng/ml THC in blood.
Because DUI-marijuana cases are often very fact-specific, if your Public Defender does not have any relevant experience, you may want to consider looking at attorneys who specialize in DUI-Alcohol & Drugs cases, if you can afford one.
The police officer is only able to assert that he/she smelled the general smell of cannabis in the passenger compartment, which would come from an unopened package.
All cannabis was stored, in closed bags, in the trunk.
There is no resinated paraphernalia in the car, especially in the passenger compartment.
Your recommendation and State ID Card were present in the car with the medicine.
You did not make any statements to the police about the last time you medicated, or you admitted that you had not medicated for a long period of time--e.g. 12 hours.
Field Sobriety Tests were not administered, or the tests were administered, but you can prove you passed all of them, or were unable to because of your specific disability.
Share Cal. Health & Safety Code § 11362.765 with your attorney. You and your lawyer should argue that while Health & Safety Code § 11364 is not specifically exempted in S.B. 420, if you are a qualified patient using the paraphernalia to administer medical cannabis to yourself, you qualify for S.B. 420's exemption, and it would be illogical to allow you to possess medical cannabis but not a means to administer it.
Share Attorney General Opinion 03-411 with your attorney. Unfortunately, the law is more complex on this topic than the simple possession of concentrates, and a court may deny you the ability to assert a medical cannabis defense because this statute is not specifically named in S.B. 420.
Additionally, according to an appellate court decision, People v. Niall Bergen, there is a distinction between manufacturing concentrated cannabis with chemicals (e,g, using alcohol, butane, or another chemical solvent) as opposed to manufacturing it naturally (e.g. using pressure, screening, ice water/freezing, butter, or vegetable oil). Naturally manufactured concentrated cannabis is almost certainly protected under the medical cannabis laws, whereas chemically manufactured concentrated cannabis may not be.
You will have to assert that the living environment of the child or children did not endanger their health, that your use of your medicine did not affect your ability to be a good parent, and that you kept your medicine very separate from your children. Here is a list of tips that demonstrate best practices for a responsible patient-parent, and you should highlight any to your attorney that are relevant to your situation.
When residing in a house with a child, possess or cultivate as little as your condition allows.
Keep all medical cannabis out of plain sight, ideally in clearly labeled medicinal jars and with other prescription medications, in a place that children cannot access. If you cultivate outdoors, surround your garden surrounded with an impermeable fence that will deny access to children. If you cultivate indoors, do not include lamps or other fire hazards, and secure the garden in a locked room or devise another way to deny access to children.
If you cook with medical cannabis, clearly label any resultant food products as medicinal, and keep them far away from any children's food.
Use discretion when medicating, and do not do so when your child is present or in the view of persons who might be looking for a reason to report you to CPS. Specifically, think about medicating when you have several hours open before any interaction with the child or after he/she is already in bed.
If your child can understand, specifically explain to her/him that the cannabis is your medicine and that it is not for her/him (much like any other prescription medication). Furthermore, let him/her know that your patient status and medicine is a private matter, just like any other medical condition, and that he/she should not volunteer information about it to anyone.
In a dual-patient-parent household, try to work out a routine with your partner where one parent is always unmedicated in case any unexpected issues arise.
Never drive with your children in the car after medicating.
Consider keeping notes for yourself regarding the precautions you have taken, so that you are prepared to inform the court about them if asked.
S.B. 420 also specifically exempts medical cannabis patients from criminal sanctions under Cal. Health & Safety Code § 11366 (Maintaining a place to sell marijuana), 11366.5 (Allowing a building to be used for distribution of a controlled substance), & (11570 (Nuisance of building used for distribution of a controlled substance).
If you have a different California criminal charge related to your use of medical cannabis, contact the Legal Services Coordinator to discuss your situation.
Wait and see whether you receive a citation or notice to appear in the mail. Do not reach out to law enforcement, unless there are exceptional circumstances. In the meantime, try not to obsess over the chance that you might be cited and prepare yourself for court in the event that you are charged. At some point in the future, you may want to call the local superior court, to see if they actually plan to charge you, or if there is a warrant out for your arrest.
You may be able to get your property back. See our Return of Property page for details. Here's some information to help you decide when to file your motion.
If a judge dismissed your charges, you can file a Motion for Return of Property immediately (though there is no statute of limitations). If the DA hasn't yet filed charges, or even if they drop the charges, the situation is more complicated. The DA could file or re-file charges for up to 3 years. In truth, after 6 months, the threat is less. If you were within the local guidelines, or have a written exemption from the guidelines, you are probably safe to file a Return of Property motion. Otherwise, you'll need to weigh the benefits of getting your property back with the risk of the DA filing charges in retaliation.
In many cases, law enforcement confiscate non-medical cannabis property, such as money, patients' recommendation, State ID card, medical records or other personal documents, cellphones, cultivation equipment, soil, & lights. Because law enforcement does not usually consider these items to be contraband, it is often easier to patients to retrieve them without court proceedings. You might want to try making a trip to the Police Property Clerk and attempting to negotiate to get these items back more immediately while preparing a Motion for Return of Property to address the confiscation of your medicine, and, if necessary, non-medical cannabis property.
You should consider filing a complaint if law enforcement officers acted against police procedure or treated you particularly harshly or inappropriately, including leaving you in a stress position that inflamed your condition, denying you access to non-marijuana medication, verbally insulting you, or confiscating your medicine even after you showed them an up-to-date recommendation.
So, what can I file?
In order to discourage the specific law enforcement agency from repeating the inappropriate conduct that you were subject to in the future, you should think about filing a complaint with the appropriate level of government (State, county, local) that oversees that law enforcement agency. ASA actually won a lawsuit against the CHP for their harassment of patients, and we forced CHP to settle and change to a gold-standard police policy. Here is the Citizen's Complaint form to file if CHP has not abided by their policy, and please help ASA track CHP compliance by contacting our Legal Services Coordinator at legalsupport@safeaccessnow.org.
If you instead dealt with local Police Department or the county sheriffs, you will have to do a little research. First Google the website of the police force itself, and do a search on the site for a complaint form (e.g. the Oakland P.D. or L.A. County Sheriffs) or a helpline, which you can call to ask about the complaint procedure (do not give your name at this point, you do not need to until you decide to file the complaint). If that does not yield any information, you can also Google the website of the governing town/city or county, and call them to ask for help.
You should also consider filing a Motion for Return of Property to get your medicine back, and attempting to expunge your criminal records. If many motions are filed, local Superior Court judges may notice the time being spent by these types of cases, and urge law enforcement to stop seizing medical marijuana.
However, you should also know that there is always the possibility that the D.A. will file retaliatory charges as a result your filing a complaint, a motion for Return of Property, or moving to expunge your records. Thus, if you are not prepared to have to go through court to dismiss charges against you, and you do not think you have the evidence to do so, maybe it is best to lay low, and not take any of these actions. However, if you have an up-to-date recommendation, were under the guidelines, and think any possible case against you will get dismissed, that you should strongly consider standing up as an activist and filing these papers.
Can I file a civil suit? What if law enforcement used excessive force and caused me significant damage?
Because of the immunities that law enforcement often enjoy, it is not likely that you will be successful in obtaining damages as the result of a civil suit, but there are a few cases where patients have won a monetary judgment. For instance, if law enforcement does something like force you to destroy your plants or paraphernalia, you may have the right to sue them to recover damages, as David Williams did with ASA's help, in Butte County. ASA does not have the capacity currently to work on any more of these types of suits, but if you think there is evidence of police misconduct and that it is likely that you have a cognizable civil claim for excessive force or another civil rights violation, you should file a tort claim letter with the governing town/city or county of the law enforcement agency. The tort claim letter must be filed with the appropriate agency no later than six months after the date of the incident (not the end of the criminal case).
After filing the tort claim letter, summarize your claims in a letter of several paragraphs, and shop it to attorneys who specialize in this area of the law. You can look for a lawyer using Martindale.com or trying search terms on Google such as "civil rights", "police misconduct", excessive force" and "lawyer" and "Your Region". Here is a helpful analysis on police misconduct claims by John J. Davis of Pierce, Davis & Perritano, LLP.
Here are some tips if the police are harassing you.
Because you expect continued law enforcement encounters, you should make sure that you stay under the local guidelines if your condition allows, and definitely approach your doctor to discuss a written exemption if your condition forces you to have more than guidelines allow.
You should also think about getting a State ID Card, as, even though they are not mandatory and cost extra money, they can be very helpful in a law enforcement encounter, and if you are under the guidelines and law enforcement successfully checks your ID Card on the 24-hour hotline, you are at least supposed to be let go with your medicine.
You can file an official complaint with each instance of harassment, although you should always be aware of possible retaliatory charges and further harassment.
Finally, a concrete and broader action that you can take is to join together with other patients in your town or county to try to force your law enforcement agency to adopt a police policy similar to the CHP policy or the Attorney General's Guidelines. First, do some research and find out if your Town/City Council or County Board of Supervisors have the ability to make binding changes to police policy or simply pass resolutions that encourage changes. Then, check here for your local California chapter to try to get them engaged, and contact our Field Coordinator at Action@safeaccessnow.org to discuss your organizing strategy. Think about creating coalitions to build political pressure on the Councilmembers/Supervisors to pass a resolution (binding or non-binding) that encourages a change in policy.


R Visas are issued pursuant to INA §101(a)(15)(R), 8 U.S.C. §1101(a)(15)(R); 22 C.F.R. §41.58; 8 C.F.R. §214.2(r); 60 FR 42034-37 (Aug. 15, 1995); 73 FR 72276-97 (Nov. 26, 2008).
(1) Member of a religious denomination for at least two years immediately preceding the time of application for admission that has a bona fide nonprofit religious organization in the U.S.
(a) Religious Occupation requires that the duties must primarily relate to: (i) a traditional religious function and be recognized as a religious occupation within the denomination; (ii) clearly involve inculcating or carrying out the religious creed and beliefs of the denomination; (iii) not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fundraisers, person solely involved in solicitation of donations or similar positions but may include incidental administrative duties to religious functions; and (iv) not be solely for religious study or training for religious work, although a religious worker is not barred from such training or study. 8 C.F.R. §214.2(r)(3).
(c) Religious Denomination is a group or community of believers that is governed or administered under a common type of ecclesiastical government and includes one or more of the following: (i) common form of worship; (ii) common doctrine; (iii) common services; (iv) common established place of worship; or (v) comparable indicia.
Five-year maximum period unless residing abroad and physically present outside U.S. for one year. Five-year limitation does not apply if person did not reside continually in U.S. and whose employment is seasonal, intermittent, or less than 6 months per year or if the person resides abroad but regularly commutes to U.S.
Not work in the U.S. in any other capacity but as a minister or religious worker, but may work for more than one qualifying employer as long as each files a petition. 8 C.F.R. §§214.2(r)(1)(v), (2).
Admission or change of status is limited to 30 months for the initial period. 8 C.F.R. §214.2(r)(4)(i).
An extension of stay may be filed for an additional 30 months up to 5-year maximum, but must be accompanied by a supplemental petition, supporting documents, and information regarding previous employment as an R-1 in the form of financial or other records to establish that person worked as R-1 for first 30-month period. 8 C.F.R. §214.2(r)(5),(12).
R-2 Visas for Spouses and Children of R-1 are issued pursuant to 8 C.F.R. §214.2(r)(4)(ii). R-2 Visa holders are subject to same time limits as principal R-1, irrespective of time actually spent in U.S. R-2 visa holder cannot accept employment. R-2s "are not required to demonstrate a residence abroad which they have no intention of abandoning." 9 FAM 41.58 N13.1-13.2.


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Svoboda, V. Δ-TIL and Problems of Deontic Logic. Organon F, 2016, vol. 23, No 4, pp. 539-550.
Svoboda, V. Rules, Norms, and Analytical Philosophical Discourse. Organon F, 2012, vol. 19, No 2, pp. 143-179.
Crane, T. - Svoboda, V. Causation, Interpretation and Omniscience: A Note on Davidson's Epistemology. Organon F, 2004, vol. 11, No 2, pp. 117-127.
Svoboda, V. Graham Priest, Logic. A Very Short Introduction. Organon F, 2002, vol. 9, No 1, pp. 116-118.
Svoboda, V. Physical Objects and Individuals in Limbo. Organon F, 2017, vol. 24, Supplementary Issue 1, pp. 109-122.
Svoboda, V. Language Games and the Segmentation of Deontic Logic. Organon F, 2014, vol. 21, Supplementary Issue 1, pp. 168-184.

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Employer's liability; negligence; action; defenses denied.
In all cases brought under sections 48-101 to 48-108, it shall not be a defense (a) that the employee was negligent, unless it shall also appear that such negligence was willful, or that the employee was in a state of intoxication; (b) that the injury was caused by the negligence of a fellow employee; or (c) that the employee had assumed the risks inherent in, or incidental to, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances, which grounds of defense are hereby abolished.
Laws 1971, LB 572, § 2.
A common-law misrepresentation defense to govern when an applicant's misrepresentation will bar recovery of workers' compensation benefits is incompatible with the Nebraska Workers' Compensation Act, overruling Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979). Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).
The statutory defense under this section applies to employees, not applicants. Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).
This section eliminates from workers' compensation proceedings the three common-law defenses of contributory negligence, the fellow-servant rule, and assumption of the risk, preserving only the employee's willful negligence and intoxication as defenses which the employer may raise. Estate of Coe v. Willmes Trucking, 268 Neb. 880, 689 N.W.2d 318 (2004).
Willful exposure to freezing weather was not a defense. Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965).
Allegation that disability was due to employee's failure to allow normal recovery constituted charge of willful negligence. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).
Defense of assumption of risk is not available. Nedela v. Mares Auto Co., 110 Neb. 108, 193 N.W. 345 (1923).
Defense that plaintiff was willfully negligent was not established by evidence. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).

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