Jitender Singh appeals his convictions of burglary of a habitation and fraudulent use or possession of identifying information. In his first issue, Singh challenges the sufficiency of the evidence to support his conviction of burglary of a habitation. In his second issue, he urges that the trial court improperly limited defense counsel's voir dire examination of the jury panel. In his third issue, Singh contends the trial court failed to properly charge the jury. In his fourth and final issue, he challenges the sufficiency of the evidence to support his conviction of fraudulent use or possession of identifying information. We affirm the trial court's judgment. TEX. R. APP. P. 47.4.
Singh met P.A. in Delhi, India, where both individuals were pursuing their undergraduate studies. The two never dated, but in November 2006, Singh proposed to marry P.A. She declined, explaining that she had no feelings for him. From that day forward, Singh began stalking P.A. and making her life miserable.
Singh began by following P.A. to her parents' home and sitting in a nearby courtyard to watch her. P.A.'s parents called the police when his behavior escalated to knocking on their door. Although he spent that night in jail, he continued his pursuit of P.A. In February 2007, Singh gave P.A. a Valentine's Day card. P.A. repeated to him that she had no feelings for him and that she did not want him to contact her. Singh responded by tearing the card up and throwing it in her face in front of others. Around that same time, P.A. and Singh were attending the same class. One day, after a break in class, Singh asked to sit next to P.A., and she refused. Singh reacted by holding her face in his hands and asking her: "Do you think you're very beautiful that you could decline my proposal?" He then threatened her: "I'm going to get somebody to put acid on your face and spoil this face of yours." On another occasion, Singh asked one of P.A.'s friends to move, so that he could sit next to P.A. in class. P.A. stood up and told him she did not want to sit next to him. Singh reacted by punching his fist into the window next to P.A.'s desk with such force that the glass broke and cut his fist. P.A. reported these incidents to the dean of the school. Singh wrote a letter to the school, acknowledging his wrongful conduct and promising to cease further harassment of P.A. The school took no action toward Singh, and he continued harassing P.A. Because of these multiple threats and harassments, P.A. ceased attending classes for nearly two months, only returning to take her exams to complete her degree.
In August 2007, P.A. moved to the United States to pursue her master's degree in New York. Soon after, Singh applied to universities in the United States, including the same school in New York that P.A. planned to attend. In the spring of 2008, Singh visited P.A.'s parents' home in Delhi more than once to tell them he wanted to attend the same school as P.A. and threatening to kill them if they did not secure his admission. In the summer of 2008, Singh visited P.A.'s father's work and physically assaulted him by shoving him against a wall and breaking his glasses. At that point, the Delhi police began providing security for P.A.'s parents and filed criminal charges against Singh for assault and harassment. In December 2008, an Indian court signed a protective order that permitted Singh to travel to the United States so long as he refrained from contacting P.A. while he was in the United States.
Despite court orders prohibiting him from contacting P.A. or her family, Singh never stopped making harassing phone calls to P.A.'s parents.
In 2009, P.A. accepted a job in California and moved there. Singh tracked her down there and—without P.A. providing her phone number or the name of her employer or permission to contact her—began leaving voicemails at her office in violation of the Indian court order. He escalated his harassment by showing up uninvited to P.A.'s apartment, knocking on her door, and announcing, "You cannot run away from me, I will come back again." At that point, P.A. felt it was necessary to obtain a restraining order against Singh, and in December 2009, a court in California granted a protective order against Singh. In retaliation, Singh called P.A.'s mother, informed her that P.A. had obtained a restraining order against him, and said, "I am going to kill her now." Throughout 2009 to 2012, P.A. discovered multiple accounts created in her name containing false information about her and worded in such a way as to convince her Singh was responsible. Additionally, someone hacked P.A.'s emails, an action she attributes to Singh. In October 2011, Singh left voicemails for P.A., calling her names, threatening to physically attack her father in India, and accusing her mother of having an affair with police officers.
In October 2012, P.A. moved to Collin County. The restraining order P.A. had obtained in California expired in December 2012, and when she applied for a renewal, her request was denied. About a year after the California restraining order expired, Singh became concerned that the charges against him, particularly those in India, would prevent him from traveling back and forth between his work in the United States and his family in India. Singh decided to visit P.A. in Texas to see if he could convince her to drop the charges in India against him or if he could obtain evidence that the allegations against him were false.
Singh flew to Texas, rented a car, and drove to P.A.'s apartment. When he arrived, she was not there, so he checked into a hotel room to stay for the night. The next day, Saturday, February 8, 2014, Singh went to the apartment leasing office and represented to a leasing agent that he was there to deliver papers to a resident. Singh asked to be admitted to the building and began asking for personal information about P.A. When the agent refused to allow Singh to enter or to answer any of Singh's questions, Singh left the leasing office. He saw the gate to the building was open, so he went inside and knocked on P.A.'s apartment door. When no one answered, he then knocked on the door across from P.A.'s apartment, and the resident of that apartment (the "neighbor") answered. Singh asked her if she had seen P.A. She responded that she had not and that he should contact the leasing office or the police with any concerns he might have about P.A. When the neighbor asked for a name to give P.A. if she happened to see her, Singh gave the name "Rakesh."
Later that afternoon, the neighbor heard a drilling sound outside her apartment and looked through the peephole in her door to see a locksmith drilling to open the door to P.A.'s apartment. She witnessed Singh calmly walk inside P.A.'s apartment, close the door, and lock it. Suspicious of Singh's intentions towards P.A., the neighbor reported what she had seen and heard to the leasing office and then called the police.
While Singh was inside P.A.'s apartment, P.A.'s boyfriend, N.A., attempted to enter her apartment at P.A.'s request to get some of her belongings for her. N.A. had been able to use P.A.'s key to enter earlier in the day without any trouble, but when he returned that afternoon, he found that he could turn the lock but that the door would not open. P.A. had a roommate, so N.A. called her name. N.A. thought he could hear someone moving inside, but when no one answered his call, he left.
Thirty minutes after he entered P.A.'s apartment, Singh left carrying a backpack. At that time, the neighbor was on the phone with the police and at their request photographed Singh walking through the parking lot and getting into a parked car. Officer Michael Weaver of the Plano Police Department arrived soon after and found Singh sitting in the backseat of his car with his laptop computer and several of P.A.'s possessions, including her backpack, bracelet, multiple external computer drives, mail addressed to P.A., and a variety of personal identification and court documents.
The leasing office notified P.A. of the burglary, and she returned to her apartment to find the police there. The police informed her that Singh was the suspect, and she confirmed that she had not granted him her consent to enter her apartment. P.A. also identified the belongings Singh had taken from her apartment.
When Officer Weaver confronted Singh in his car, he initially denied that he lived at the apartment complex or that he knew anyone there. After Officer Weaver explained Singh had been seen entering P.A.'s apartment, he admitted that he knew P.A. and that he hired a locksmith to drill the door lock. At that point, Officer Weaver decided to detain Singh, so he advised Singh of his rights. Singh agreed to continue speaking with the officer and informed him that if questioned, P.A. would lie and "do her worst to hang" him. He claimed he and P.A. had been in a relationship in India, but that she was now harassing him by preventing him from returning to India to see his family. He further claimed that he had flown from California to tell her to stop bothering him. When questioned about the belongings found in his car, Singh claimed that they were all his and denied taking a backpack from P.A.'s apartment. Singh stated that he met with P.A. on Friday and that she had given him permission to enter her apartment and to hire a locksmith to drill the lock, but he could not provide a phone number for her or say where she was at that time. He then changed his version of events to say that P.A. would confirm she had given him permission.
Later at the jail, Officer Weaver noticed P.A.'s bracelet, which Singh informed him was his.
The police arrested Singh for burglary of a habitation.
After the burglary, P.A. received a notification from a credit monitoring service that an account in her name was delinquent. P.A. had not opened the account or authorized anyone else to open an account in her name, so she contacted the Plano Police Department. Detective Brenda Speaker with the Plano Police Department's Financial Crimes Units investigated P.A.'s claim and obtained records that a credit monitoring account in P.A.'s name had her address, a previous address, her date of birth, and a social security number. However, the name and credit card information of the person who opened the account belonged to Singh.
On July 17, 2014, Singh was indicted for burglary of a habitation, and on December 18, 2014, Singh was indicted for fraudulent use or possession of identifying information. Singh pleaded not guilty to the charges in both indictments. The cases were tried together before a jury who found Singh guilty of both offenses as alleged in the two indictments. The jury then assessed sentences of seventeen years in prison for the burglary offense and two years in the state jail for the fraud offense. The trial court ordered the sentences to run concurrently.
I. Was the evidence sufficient to support the burglary conviction?
In his first issue, Singh challenges the sufficiency of the evidence to support his conviction for burglary of a habitation. He urges that (1) due to "monomania," he lacked the ability to understand the significance of P.A.'s lack of consent to his entry into her apartment; and (2) there was no evidence that Singh intended to "deprive" P.A. of her property such that he was only guilty of criminal trespass.
When reviewing whether there is legally sufficient evidence to support a criminal conviction, the standard of review we apply is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 198 (2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard tasks the factfinder with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts. Id. On appeal, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id. Thus, we are not permitted to use a "divide and conquer" strategy for evaluating sufficiency of the evidence because that approach does not consider the cumulative force of all the evidence. Id. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Id. at 448-49.
A person commits burglary of a habitation if the person, without the effective consent of the owner, enters a habitation and (1) does so with the intent to commit a theft or (2) after entry, he commits or attempts to commit a theft. See TEX. PENAL CODE ANN. § 30.02 (a)(1), (3). A person commits criminal trespass if the person enters the habitation of another without effective consent. See id. § 30.05; Salazar v. State, 284 S.W.3d 874, 877-78 (Tex. Crim. App. 2009) (holding that a habitation inherently provides notice that entry is forbidden). A person commits a theft offense if the person appropriates another's property without the owner's effective consent and with the intent to deprive the owner of the property. See PENAL § 31.03 (a), (b). The penal code defines "deprive" as meaning (a) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner; (b) to restore property only upon payment of reward or other compensation; or (c) to dispose of property in a manner that makes recovery of the property by the owner unlikely. See id. § 31.01(2).
Singh argues the evidence does not establish he had the intent to commit a theft. First, he claims the evidence establishes he lacked the ability to understand the significance of P.A.'s lack of consent to his entry into her apartment. Singh relies on his testimony that he decided to hire a locksmith to break into P.A.'s apartment because he believed it would allow him to obtain evidence to submit to the Indian courts to prove her allegations against him were false. Once inside P.A.'s apartment, he found a backpack of hers that contained documents. He became concerned someone would catch him going through P.A.'s documents, so he took the backpack and all its contents to his car to further examine the contents. Singh also testified that although he did not think P.A. would have granted him consent to enter her apartment, he believed he had "implied consent." We conclude the foregoing evidence is not sufficient to support Singh's contentions that he lacked the ability to understand the significance of P.A.'s lack of consent to his entry into her apartment.
Singh did not testify further what he meant by "implied consent."
Moreover, we conclude a factfinder could have relied upon the following evidence to find that Singh in fact understood the significance of P.A.'s lack of consent to his entry into her apartment. Singh testified that if P.A. had found out he had entered her apartment, she would not grant him consent to enter. Before entering her apartment, Singh did not act as though he believed he had "implied consent" to enter her apartment. See Lincoln v. State, 307 S.W.3d 921, 924 (Tex. App.—Dallas 2010, no pet.) ("Proof of mental state will almost always depend upon circumstantial evidence."). He lied to the leasing agent in an attempt to gain access to P.A.'s apartment. He asked P.A.'s neighbor if she had seen P.A., and when the neighbor asked for Singh's name, he told her it was "Rakesh," rather than Jitender or Singh. Singh then hired a locksmith to forcibly enter P.A.'s apartment. The locksmith testified he would not have allowed Singh to enter without some proof that he lived there. Since Singh did not live there, a factfinder could conclude any such evidence Singh gave to the locksmith must have been falsified. See Murray, 457 S.W.3d at 448-49. While inside her apartment, he did not answer the door when P.A.'s boyfriend knocked and called for P.A.'s roommate. He also testified as to being concerned someone would catch him going through P.A.'s documents. A factfinder could have inferred from the foregoing that Singh understood P.A. did not consent and knew that she would not have consented to his entry and that his use of stealth and deceit to gain entry meant he understood the significance of that lack of consent. See id.
Next, Singh argues there was no evidence that Singh intended to "deprive" P.A. of her property such that he was only guilty of criminal trespass. Singh argues he merely wanted to see if he could find some evidence to exonerate himself in the Indian courts and that because he only exercised control over the property for less than one hour, the evidence does not establish that he intended to deprive P.A. of her property. As noted above, the penal code defines "deprive" as meaning (a) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner; (b) to restore property only upon payment of reward or other compensation; or (c) to dispose of property in a manner that makes recovery of the property by the owner unlikely. See PENAL § 31.01(2). The record contains sufficient evidence to establish that Singh intended to take P.A.'s property, including the neighbor's testimony that Singh exited P.A.'s apartment with her backpack, which he then took back to his car and proceeded to examine until the police interrupted him. When questioned, Singh at first alleged the backpack and contents belonged to him, indicating his intention to withhold the property from P.A. Officer Weaver testified that at the jail, Singh asserted P.A.'s bracelet was his, from which a jury could conclude that he intended to deprive P.A. of more than simply information he thought might exonerate him of crimes in Indian courts. Further, the fact that his control over the property was brief was only due to the fact that the police caught him with the same property less than an hour after he took it. See Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981) ("The fact that the deprivation later became temporary does not automatically mean that there was no intent to deprive permanently or for so long as to satisfy the statutory definition.").
We overrule Singh's first issue.
II. Did the trial court improperly limit Singh's voir dire examination?
A few days before voir dire proceedings, the State filed a motion in limine that in part requested that the trial court instruct defense counsel and Singh not to allude or refer to any mental illness of Singh's during jury selection, opening statements, closing argument, or to solicit statements regarding same from any witness during the guilt/innocence phase of trial without first requesting a hearing outside the presence of the jury to determine the admissibility thereof. Defense counsel opposed that request as follows.
[W]e have not pled a defense or given notice of a defense of insanity, so we certainly wouldn't bring it up in voir dire or guilt or innocence. But if he does have any psychiatric issues that would mitigate in punishment, mitigate for intent, mitigate for possibility of reoffense—treated properly, things like that, we think that's allowable as mitigation in sentencing.
The trial court judge granted the motion in limine as to voir dire and to the guilt/innocence phase of trial.
In his second issue, Singh contends the trial court improperly limited his voir dire examination of the venire panel concerning the role that mitigation evidence might play in the assessment of punishment. However, this issue does not comport with the objection Singh raised to the trial court. See Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) ("If a trial objection does not comport with arguments on appeal, error has not been preserved."). Moreover, defense counsel explicitly stated he would not "bring [a defense of insanity] up in voir dire" thus disclaiming the very argument Singh now raises on appeal.
Because Singh failed to preserve this second issue, we need not address it.
III. Did the trial court submit erroneous jury instructions on the burglary offense?
In his third issue, Singh urges that the jury instructions regarding the burglary of a habitation charge were inadequate because the trial court failed to (1) properly charge the jury on the law of the case pertaining to burglary of a habitation; (2) provide the legal definition of "deprive"; and (3) provide the lesser-included charge of criminal trespass.
Our first duty in analyzing a jury-charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). When, as here, the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Id. at 743-44. An egregious harm determination must be based on a finding of actual rather than theoretical harm. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). Actual harm is established when the erroneous jury instruction affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory. Id. Thus, we review alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. Ngo, 175 S.W.3d at 744. When assessing harm from erroneous jury charge instructions, we examine (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the parties' arguments; and (4) all other relevant information revealed by the record of the trial as a whole. Arrington, 451 S.W.3d at 840.
Singh complains the jury charge erroneously allowed the jury to convict him if they found he committed other conduct proscribed by section 30.02 of the penal code but not alleged in the indictment. As noted above, a person commits burglary of a habitation if the person, without the effective consent of the owner, enters a habitation and (1) does so with the intent to commit a theft or (2) after entry, he commits or attempts to commit a theft. See PENAL § 30.02 (a)(1), (3). Singh was indicted as follows.
[Singh] did . . . intentionally and knowingly enter a habitation, without the effective consent of . . . the owner thereof, and attempted to commit or committed a theft of property . . . .
The jury was charged to convict Singh if they found that he "did then and there intentionally or knowingly, enter a habitation without the effective consent of . . . the owner thereof, with the intent to commit theft, attempt (sic) to commit theft, or did commit a theft." Singh urges that the trial court erroneously instructed the jury that it might find him guilty if it found he entered P.A.'s apartment with intent to commit theft, which was not alleged in the indictment. The State concedes that the trial court erred in instructing the jury that it could convict based on the "intent to commit" manner and means of committing the offense. But the State urges that the error did not egregiously harm Singh.
We agree it was error for the jury charge to authorize a conviction on a theory not alleged in the indictment. See Savannah v. State, No. 05-10-01565-CV, 2012 WL 3125126, at *5 (Tex. App.—Dallas Aug. 2, 2012, pet ref'd) (mem. op., not designated for publication). We turn now to address whether the error egregiously harmed Singh.
In consideration of the entire jury charge, the jury was indeed permitted to convict Singh if they found that he intentionally or knowingly entered P.A.'s apartment without her effective consent and (1) entered with the intent to commit theft, (2) attempted to commit theft, or (3) committed a theft. As discussed above, the record contains sufficient evidence for the jury to conclude Singh intended to commit a theft when he entered P.A.'s apartment. Moreover, the evidence established P.A.'s neighbor witnessed and photographed Singh exiting P.A.'s apartment carrying a backpack later determined to belong to P.A. and to contain her possessions, which is sufficient to establish Singh attempted to commit a theft and that he did so, as alleged in the indictment. As for the arguments of counsel, during closing argument, defense counsel defined burglary as "when the theft or intent to commit theft occurs." Further, during voir dire, the State told the jury that they could find Singh guilty of burglary if they found he entered another person's habitation with the intent to commit theft or attempted or actually committed theft.
We conclude that the uncharged theory of burglary (with intent to commit theft) was presented to the jury through evidence and arguments, and the jury charge authorized the jury to convict under that theory as well as the theory authorized by the indictment. The evidence is overwhelming that Singh committed burglary under either theory included in the jury's charge. See Brown v. State, Nos. 05-07-00939-CR, 05-07-00940-CR, 05-07-00941-CR, 2010 WL 425063, at *8 (Tex. App.—Dallas Feb. 8, 2010, no pet.) (mem. op.) (not designated for publication) (finding no egregious harm when evidence presented on both theories of burglary). And the jury's guilty verdict suggests that it rejected Singh's defensive theories. See id. Thus, we conclude Singh suffered no egregious harm due to this error in the jury charge.
C. Legal Definition of "Deprive"
Singh also complains the jury charge failed to provide the legal definition of "deprive" as set forth in the penal code. He urges this alleged error is particularly harmful because there was no evidence that Singh engaged in conduct meeting any one of the three penal code definitions of "deprive." The penal code defines "deprive" as meaning (a) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner; (b) to restore property only upon payment of reward or other compensation; or (c) to dispose of property in a manner that makes recovery of the property by the owner unlikely. See PENAL § 31.01(2). The State concedes the omission of the definition was error, but contends the error did not egregiously harm Singh.
We agree that the trial court erred by not including the definition of "deprive" in the jury charge. See Estrada v. State, 334 S.W.3d 57, 63-67 (Tex. App.—Dallas 2009, no pet.). We turn now to address whether the error egregiously harmed Singh.
As discussed in greater detail above, we have already concluded that the record contains sufficient evidence to establish that Singh intended to deprive P.A. of her property by taking it permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner. Accordingly, we cannot conclude that the error in the jury charge caused egregious harm.
Finally, Singh urges that the trial court erred by failing to provide the lesser-included charge of criminal trespass. According to Singh, the evidence establishes that he entered P.A.'s apartment without her consent, but that he did not intend to commit a theft and therefore the jury should have been instructed on criminal trespass. Singh did not request this lesser-included instruction. A trial court is not statutorily required to sua sponte instruct the jury on lesser-included offenses because these issues frequently depend on trial strategy and tactics. See Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010). Accordingly, we conclude the trial court did not err by not including criminal trespass in the jury charge.
We overrule Singh's third issue.
IV. Was the evidence sufficient to support the fraud conviction?
In his fourth issue, Singh challenges the legal sufficiency of the evidence to support his conviction for fraudulent use or possession of identifying information under section 32.51(b) of the penal code. See PENAL § 32.51(b). Specifically, Singh complains the State failed to prove when, where, how, or why Singh obtained or possessed items of P.A.'s identifying information without her consent and that such conduct was with the intent to harm or defraud her.
As previously noted, when reviewing whether there is legally sufficient evidence to support a criminal conviction, the standard of review we apply is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Murray, 457 S.W.3d at 448.
A person commits the offense of fraudulent use or possession of identifying information if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of identifying information of another person without the other person's consent. See PENAL § 32.51(b)(1). The penal code defines "identifying information" to mean information that alone or in conjunction with other information identifies a person, including a person's name, date of birth, and social security number. See id. § 32.51(a)(1).
The record contains the following information supporting Singh's conviction for fraudulent use or possession of identifying information. P.A. testified that after the burglary, she was notified by a credit monitoring business that an account containing her information required payment to be made. According to P.A., she had not opened any such account, nor had she authorized or requested that anyone else open the account. She reported the unauthorized account to the Plano Police Department. When she learned an account had been opened in her name and that Singh was believed to have opened it, she formed the belief—based on her experience with Singh—that his intent in possessing her identifying information was to harm and defraud her. At trial, the State introduced a business record with P.A.'s identifying information, including her name, address, prior address, social security number, and date of birth. The application also identified the debit card used to pay for the account, which Singh later testified was his. The State also introduced a record of the application to open the credit monitoring account, which contained Singh's name, birth date, and contact information. The investigating detective testified she determined the telephone number Singh provided to police during the burglary investigation was the same as the phone number associated with the debit card used to open the credit monitoring account. Based on her investigation, the detective believed Singh had the intent to harm or defraud P.A.
Although the detective testified the offense occurred on January 21, 2014, while P.A. was living in Plano, Singh argues there was no evidence he was in Texas prior to the date of the offense to support a finding the offense occurred in Texas. Section 1.04 of the penal code invests Texas with jurisdiction over an offense if the conduct constituting the offense or a result that is an element of the offense occurs inside this state. PENAL § 1.04(a)(1). Because the State established P.A. was living in Texas, Singh's conduct in this offense impacted her financial and personal security in Texas. See Roberts v. State, 619 S.W.2d 161, 164 (Tex. Crim. App. 1981) (holding defendant's retention of child outside the state in violation of valid Texas court order had result of frustrating power of Texas judiciary).
Singh urges the evidence that he was the person who obtained or possessed P.A.'s information and that he used his debit card to open a credit monitoring account was not sufficient. He also challenges the evidence that he intended to harm or defraud P.A. We conclude there was sufficient evidence in the record, as detailed above, from which a reasonable factfinder could conclude that Singh was the person who opened a credit monitoring account using P.A.'s information and that he intended to harm or defraud her. See Murray, 457 S.W.3d at 448-49.
We overrule Singh's fourth issue.
Trial Court Cause No. 219-81690-2014.
Opinion delivered by Justice Schenck, Justices Bridges and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 5th day of February, 2018.
Trial Court Cause No. 219-82997-2014.


← Auto Coverage: Are Household (Family Member) Step-Down Exclusions Void Under Minnesota Law?
By Greg Johnson. The Minnesota Supreme Court recently issued a decision interpreting the Minnesota Motor Vehicle Sale and Distribution Act (“MVSDA”), Minn. Stat. §§ 80E.01 .17 (2014).
In Wayzata Nissan LLC v. Nissan North America, Inc., Case No. A14-1652 2016 WL 626069 (Minn. Feb. 17, 2016), the Supreme Court held that a dealer which had operated a Nissan dealership in Bloomington, MN for three months before relocating it to Eden Prairie, MN, was not an “existing dealer” for purposes of the MVSDA such that another Nissan dealer located within a ten mile radius could challenge the relocation.
Feldmann Imports Inc. (“Feldmann”) operated a Nissan dealership in Bloomington, MN. Feldmann wanted to sell the Nissan dealership, but retain the property for other purposes.
In March 2014, Feldmann executed an asset purchase agreement (APA) with a third-party for the sale of the dealership. The APA specified a potential new dealership location in Eden Prairie. The Eden Prairie location was 7.6 miles from another Nissan dealership Wayzata Nissan LLC (“Wayzata”). By the terms of Feldmann’s franchise agreement, Nissan North America, Inc. (“Nissan”) maintained a right of first refusal on the sale of the Feldmann dealership. In May 2014, Nissan exercised its right of first refusal and later assigned its right to McDaniels. Although McDaniels operated motor vehicle dealerships pursuant to franchises with other manufacturers, McDaniels had never held a franchise agreement with Nissan. McDaniels then purchased the real property in Eden Prairie that was referenced in the APA.
After hearing rumors of the proposed relocation, Wayzata sent a letter to Nissan inquiring about its intentions, claiming the proximity of the relocated dealership (7.6 miles) would impinge on Wayzata’s primary geographic area of business. By letter dated May 8, 2014, Nissan responded that it intended to allow Feldmann or its successor in interest to relocate the Bloomington dealership to a location within 10 miles of the Wayzata dealership.
In July 2014, Nissan approved McDaniels as a Nissan dealer, as well as the relocation of the Bloomington dealership. McDaniels closed on the purchase of the dealership and immediately commenced operation of the dealership in Bloomington, pending its relocation to Eden Prairie. McDaniels operated the dealership in Bloomington for three months before completing the relocation to Eden Prairie in November 2014.
In the event that a manufacturer seeks to enter into a franchise establishing an additional new motor vehicle dealership or relocating an existing new motor vehicle dealership within or into a relevant market area where the line make is then represented, the manufacturer shall, in writing, first notify each new motor vehicle dealer in this line make in the relevant market area of the intention to establish an additional dealership or to relocate an existing dealership within or into that market area.
Minn. Stat. § 80E.14, subd. 1.
A “relevant market area” encompasses a 10-mile radius around an existing dealership. Id. Within 30 days of receiving notice, an affected dealership may commence a civil action challenging the relocation. Id. After a civil action is filed, “the manufacturer shall not establish or relocate” the proposed dealership until the district court finds that the establishment or relocation is supported by good cause. Id.
However, the notice and good-cause requirements do not apply to the “relocation of an existing dealer” within the “area of responsibility” described in the dealer’s franchise agreement when the proposed relocation site is within five miles of the existing dealer’s current location and is not within five miles of another dealer of the same line make. Id.
The Eden Prairie location was within five miles of the Bloomington location and more than five miles from the Wayzata dealership. Nissan and McDaniels contended that Wayzata had no right to challenge the relocation because McDaniels had operated the dealership in Bloomington for three months before relocating the dealership to Eden Prairie and, thus, was an “existing dealer” within the statute’s notice and good-cause exemption.
The district court and Court of Appeals held that Nissan and McDaniels were exempt from the statute’s notice and good-cause requirements. Under the court of appeals’ holding, the notice requirement and existing-dealer exception of Minn. Stat. § 80E.14, subd. 1, applied on the date of the physical relocation of a dealership, not on the date that the manufacturer developed an intention to relocate a dealer. See Wayzata Nissan, LLC v. Nissan N. Am., Inc., 865 N.W.2d 75, 82 (Minn. Ct. App. 2015). Thus, the Court of Appeals determined that notice was required on November 1, 2014—the date that McDaniels completed the relocation of the Bloomington dealership to Eden Prairie. Id. (stating that McDaniels was an “existing dealer” at “the time of the relocation in November 2014” because McDaniels “had operated as a Nissan dealer in Bloomington for over three months”).
The issues before the Minnesota Supreme Court were two-fold: (1) whether the notice and good-cause requirements of Minn. Stat. § 80E.14, subd. 1 applied on the date that a manufacturer developed an intention to relocate a dealership or the date of physical relocation; and (2) whether the existing-dealer exception applied when the relocation of a dealership was accompanied by a change in the person or entity operating the dealership.
As to the first issue, the Supreme Court held that “notice is required on the date that a manufacturer develops the intention to authorize a relocation, not on the date of the physical relocation of a dealership.” 2016 WL 626069 at *6. Because Nissan had developed a definite intention to authorize the relocation of the dealership from Bloomington to Eden Prairie by May 8, 2014, Nissan was required to provide notice on or before May 8, 2014 unless the “existing-dealer” exception applied. The Supreme Court next addressed whether the existing-dealer exception applied. The court held the phrase “existing dealer” in Minn. Stat. § 80E.14, subd. 1, “refers to the person or entity that is operating a dealership on the date that the manufacturer develops a definite intention to relocate the dealership.” Id. at *7. Because Nissan intended to approve the relocation of the dealership to Eden Prairie on May 8, 2014 and the relocated dealership was not to be operated by Feldmann — the entity that was operating the dealership on May 8, but rather by a new dealer — McDaniels — the existing-dealer exception did not apply and Wayzata was entitled to notice and a good-cause hearing.
The decision leads to odd results. As Nissan and McDaniels pointed out, Wayzata would have had no statutory right to challenge the relocation if either (1) Feldmann had first relocated the dealership to Eden Prairie and then sold it to McDaniels; or (2) McDaniels had purchased and operated the dealership in Bloomington and then decided, as an existing dealer, to relocate to Eden Prairie. The Supreme Court rejected this argument on two grounds. It first noted that the “Legislature could have created the existing-dealer exception to accommodate dealers that have occupied a particular geographic area, but find it necessary to slightly shift their location,” but did not do so. Id. at *8. Second, while courts will not presume that the Legislature intended an absurd or unreasonable result, this rule of construction only applies where a statute is ambiguous or where the plain meaning of the statute “utterly confounds” the clear legislative purpose of the statute. Id. at *7. Here, the statute was not ambiguous and the fact “[t]hat an existing dealer … may take advantage of the existing-dealer exception certainly [did] not confound any clear legislative purpose.” Id.
Because the exemption for relocation of an existing dealer did not apply, Wayzata was entitled to a good cause hearing on the relocation and the case was remanded to the district court for that purpose.
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When it became clear on July 9, 2018, that Judge Brett M. Kavanaugh (53), of the United States Court of Appeals for the District of Columbia Circuit, was to be nominated to fill the vacancy on the United States Supreme Court left by retiring Justice Anthony Kennedy, the immediate question for many employers -- and those of us who provide legal advice to employers -- was "how will a Kavanaugh court affect my workplace?"
While Justice Kennedy has the reputation of being the High Court's "swing vote," particularly with regard to social concerns, his employment decisions have been, for the most part, pro-employer. This term alone, Justice Kennedy joined the decision in Janus v. AFSCME Council 31, which held that government workers who choose not to join unions may not be forced to help pay for collective bargaining, because it violates their free speech rights. Kennedy also agreed with the Epic Systems Corp. v. Lewis decision upholding the enforceability of arbitration agreements containing class and collective action waivers of wage and hour disputes. And, in 2011, Justice Kennedy sided with the majority of the court in Walmart Stores Inc. v. Dukes, a decision that narrowed the definition of the commonality requirement of class actions.
Judge Kavanaugh's decisions have similarly favored-employers. Thus, his confirmation will maintain the Court's current pro-employer leanings. In Midwest Division-MMC, LLC v. National Labor Relations Board (2017), the D.C. Circuit refused to enforce a National Labor Relations Board (NLRB) decision sustaining the right of union employees to have a representative present during noncompulsory job performance peer-reviews. In a separate concurrence, Judge Kavanaugh emphasized that members have no right to representation in peer reviews because such reviews are neither investigatory nor likely to result in discipline. Judge Kavanaugh also stated that the confidentiality of the peer-review process was of essential importance.
Judge Kavanaugh's decisions in discrimination cases under Title VII, however, have been somewhat mixed. For instance, in Adeyemi v. District of Columbia (2008), Judge Kavanaugh dismissed the plaintiff's claim that he was not hired because he was blind, in violation of the American's with Disabilities Act (ADA). Judge Kavanaugh explained that the central inquiry in a discrimination case is whether the employer's stated nondiscriminatory reason for its employment decision is false. Where the plaintiff fails to demonstrate the falsehood of the stated reason, the employment decision must stand.
However, Judge Kavanaugh's concurrence in Ayissi-Etoh v. Fannie Mae (2013) can be read as advocating for a lower burden to be placed on plaintiffs in asserting hostile workplace claims. In Ayissi-Etoh, the plaintiff alleged he was subjected to a racially hostile work environment when his manager called him a repugnant racial slur. In concurring with the majority decision dismissing the plaintiff's claim, Judge Kavanaugh, nevertheless, contended that in some cases the utterance of a single racial slur, "might well have been sufficient to establish a hostile work environment."
Accordingly, one of the litmus tests for a Kavanaugh court will be to examine how he votes where the lines between emerging social concerns and legal principles of employment law intersect. Justice Kennedy is routinely cited for incrementally expanding 14th Amendment protections to the LGBTQ community over the course of his 30 years on the Supreme Court. How Judge Kavanaugh will vote on similar issues, if confirmed, is of the utmost interest.
Next Steps Judge Kavanuagh's nomination must be confirmed by a simple majority of the Senate. Senate Republicans hold a narrow majority (51-49) and, therefore, need every vote to push through the confirmation.
• For more information on labor and employment law, contact Heather Adams, Paul Bittner or another member of our Labor, employment and immigration group. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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Analyzed ukrainian student internet publications, described the features and structure of online periodicals, which affects on its functioning. Many diverse information about student life can be on student websites. Nowadays every higher education institution creates its own information site. Exploring students' online portals, you can see certain features, but the majority of student Internet publications in Ukraine in no way unrelated with sites of higher educational institution or university.
The press on the Internet continues to evolve rapidly, which, of course, also affects the processes in the development of student periodicals. Many publications have been created in recent years, but they do not use all the features that the network provides. Also, many of them do not function for long, maybe this is due to the students' uninteresting due to unsuccessful content. Students' online periodicals will grow more intensively when their publishers publish publications in time.
Student Internet publications use the same structure as on information sites. If the authors of the site for students are students, the structure is not always convenient for users: the page may be too much material, or conversely – the headings with publications are hidden. The disadvantages of some sites is low multimedia and interactivity. Although such editions help students in learning and provide more opportunities than printed ones. They are practically no different from others, but there are some subunits and information that are not used on other sites - an electronic library for students, useful for learning links.
1. Berdyshev S. N. Iskusstvo oformlennya saytu. Praktychne posobye / S. N. Berdyshev. – M. : Dashkov y Ko, 2010. – S. 148.
2. Velykyy tlumachnyy slovnyk suchasnoyi ukrayins’koyi movy / Ker. vyd. proekt P. M. Movchan, V. V. Nimchuk, V. Y. Klichak. – K. : Vydavnytstvo «Dnipro», 2009. – S. 563.
3. Hrozdanov F. T. Yazyk molodezhnykh Ynternet-hazet: dys. ... kand. filol. nauk: 10.01.10 / F. T. Hrozdanov. – M., 2007. – 155 s.
4. Zenkyna O. N. Pro stan moskovs’kykh student·s’kykh internet-portaliv [Tekst] // O. N. Zenkyna; Pedahohichna informatyka. – 2008. – No. 3. – S. 70–82.
5. Zyat’kova O. V. Kommunikatyvno-funktsional’ni oznaky nimets’koho elektronnoho molodizhnoho zhurnalu [Elektronnyy resurs] // O. V. Zyat’kova; Yzv. TulHU. Humanytar. nauka. – 2008. – No. 2. – S. 205–212. Rezhym dostupy: http: //cyberleninka.ru/article/n/kommunikativno-funktsionalnye-priznaki-nemetsogoelektronnogo -molodezhnogo-zhurnala ... (15.10.2013).
6. Kozlova O. A. Setevi SMY: vchora i s’ohodni (ohlyad lyteratury po Internet-zhurnalistytsi) // O. A. Kozlova. – Vestnyk VolHU, 2011. – Seriya 8., Vyp. 10. – S. 151–156.
7. Kolesnykova M. M. Periodychni vydannya elektronnykh merezh yak vyd ZMI: typolohichnyy aspekt: dys. ... kand. filol. nauk: 10.01.10 / M. M. Kolesnykova. – Rostov n/D, 2002. – 183 s.
8. Kolisnyk O. M. Struktura internet-hazety: kvintesentni osoblyvosti // Derzhava ta rehiony. – Zaporizhzhya, 2011. – No. 1. – S. 63–66. – Seriya: Sotsial’ni komunikatsiyi.
9. Mudra I. M. Oformlennya hazety yak zasib mediamarketynhu // I. M. Mudra; Svit sotsial’nykh komunikatsiy: nauk. zhurn. – K. : KyMU, DonNU, KPU, 2013. – T. 9. – S. 128–131.
B. V. Potyatynnyk. – Lviv: PAIS, 2010. – 246 s.
11. Safarova A. H. Sotsiokul’turna dynamika yakisnoyi hazetnoyi presy Velykobrytaniyi ta SSHA naprykintsi KHKH – pochatku KHKHI stolittya: dys. ... kand. filol nauk / A. H. Safarova. – M. : Yzd-vo MHU, 2004. – S. 79–80.
12. Slovnyk zhurnalista: Terminy, mas-media, postati / Za zah. red. YU. M. Bidzili. – Uzhhorod: Zakarpattya, 2007. – S. 79.
13. Stepanov A. A. Perspektyvy rozvytku student·s’kykh merezhevykh vydan’ u epokhu veb 2.0. Yuzabiliti-pidkhid // A. A. Stepanov; Medyaobrazovanye: ot teoryy - k praktyke: sb. materialy II Vseross. nauch.-prakt. konf «Medyaobrazovanye v rozvytku nauky, kul’tury, osvity ta zasobiv masovoyi komunikatsiyi». – Tomsk, 2008. – S. 210–215.
14. Ulanova M. A. Internet-zhurnal. Typolohiya, pryntsypy stvorennya, metodyky redahuvannya: dys. ... kand. filol. Nauk: 05.25.03 / M.A. Ulanova. – M., 2005. – 239 s.
15. Shevchenko V. E. Arkhitektonika suchasnoho ukrayins’koho hazetnoho vydannya (systemna orhanizatsiya ta zakony rozpodilu elementiv) : avtoref. ... dys. kand. filol. nauk: 10.01.08 / V. E. Shevchenko. – K., 2002.

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FDA continues to receive serial 505(q) petitions, frequently from the same petitioner, about the same specific drug or class of drugs, sometimes requiring several separate responses about different issues regarding the same product. Responding to such serial petitions requires the use of substantial FDA resources, on a repeated basis, over a protracted period of time.
The enactment of FDASIA has increased the strain on Agency resources by significantly shortening the time frame for responding to 505(q) petitions by 30 days. The shortened timeframe affords FDA even less time to evaluate the issues raised in the petitions and to provide a response that articulates the scientific and legal reasoning supporting the Agency’s decision. As a result, FDA has needed to direct resources away from other important initiatives to attempt to comply with the new shorter deadline.
505(q) contains a provision that permits FDA to summarily deny a petition at any point if FDA finds that it was submitted with the primary purpose of delaying the approval of an ANDA, 505(b)(2) application, or 351 (k) application and the petition does not “on its face” raise valid scientific or regulatory issues (FD&C Act, section 505( q)(l )(E)). As FDA previously noted in its Report to Congress, “Encouraging Early Submission of Citizen Petitions and Petitions for Stay of Agency Action” dated February 2009, we believe that the statutory language requires that both preconditions be present, and we believe this statutory standard would be extremely difficult to meet. To date, FDA has never applied this provision to summarily deny a petition, despite the fact that, in FDA’s estimation, many 505(q) petitions do not in fact raise persuasive scientific or regulatory issues when those issues have been reviewed by FDA (as previously noted, approximately two-thirds of these petitions are denied in full). Accordingly, it is FDA’s view that this provision has neither curbed the filing of petitions submitted with the primary purpose of delay nor has it permitted FDA to dispose of such petitions without expending substantial amounts of resources.
The Agency continues to be concerned that section 505(q) is not discouraging the submission of petitions that are intended primarily to delay the approval of competing drug products and do not raise valid scientific issues. The statute requires FDA to prioritize these petitions above other matters, such as safety petitions, that do raise important public health concerns. As a result, FDA remains concerned about the resources required to respond to 505(q) petitions within the 150 day deadline at the expense of completing the other work of the Agency.
To provide some context for the statements above from FDA, FDC Act § 505(q) was added to the law by the 2007 FDA Amendments Act (“FDAAA”) and is intended to prevent the citizen petition process from being used to delay approval of pending ANDAs and 505(b)(2) applications. The law was amended by Section 301 of Pub. L. No. 110-316 (2008), and again by Section 1135 of the 2012 FDA Safety and Innovation Act (“FDASIA”). Among other things, FDASIA changed the original 180-day response deadline to 150 days, and made the law applicable to citizen petitions concerning biosimilar applications submitted to FDA pursuant to PHS Act § 351(k). In June 2011, FDA issued final guidance on FDC Act § 505(q). That guidance was revised in November 2014 to account for changes made to the law by FDASIA. In January 2012, FDA issued proposed regulations to amend the Agency’s citizen petition regulations to implement changes made to the law by Section 505(q).
Under FDC Act § 505(q), FDA shall not delay approval of a pending ANDA, 505(b)(2) application, or 351(k) biosimilar application as a result of a citizen petition submitted to the Agency pursuant to 21 C.F.R. § 10.30 (citizen petition) or § 10.35 (petition for stay of action), unless FDA “determines, upon reviewing the petition, that a delay is necessary to protect the public health.” FDA is required to “take final agency action on a petition not later than 150 days after the date on which the petition is submitted.” FDA may not extend the 150-day period “for any reason,” including consent of the petitioner. Although the statute provides that FDA may summarily deny a petition submitted with the primary purpose of delaying ANDA, 505(b)(2) application, or 351(k) biosimilar approval, the Agency has never done so, as noted above by FDA.
During the FY 2014 reporting period, the Agency approved 39 505(b)(2) applications, 409 ANDAs, and 0 biosimilar biological product applications. No approvals for ANDAs or biosimilar biological product applications were delayed because of a 505( q) petition in this reporting period. One 505(b)(2) application approval was delayed in this reporting period because of a 505(q) petition.
The 505(b)(2) approval delayed in FY 2014 was delayed by 5 days because “FDA was concerned that if it approved the 505(b)(2) application before resolving the issues raised in the petition and later concluded that one or more of the arguments against approval were meritorious, then the presence on the market of a drug product that did not meet the requirements for approval could negatively affect public health.” Although FDA does not identify by drug name or application number the particular approval delayed, we suspect that the application at issue was NDA 205776 for RASUVO (methotrexate injection), and that the petition delaying approval was Docket No. FDA-2014-P-0318 (see our previous post ).
As to the number of 505(q) citizen petitions submitted in FY 2014, the Report to Congress says that 28 of the 102 citizen petitions (or 27%) handled by the Center for Drug Evaluation and Research (excluding ANDA suitability petitions and petitions that raise only OTC monograph issues) were 505(q) petitions. That’s a hefty increase over FY 2013 when FDA received only 15 505(q) petitions. “During FY 2008 through FY 2014, FDA received a total of 160 petitions subject to section 505(q). Over this 7-year period, FDA responded to all but nine of the 505(q) petitions within the statutory time frame that was applicable during that period” (i.e., 180 days or 150 days). The report includes helpful tables showing the percentage of 505(q) petitions received during Fiscal Years 2008-2014, and the outcomes for the 149 petitions that have been resolved under FDC Act § 505(q) as of September 30, 2014.


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This is an exclusive business profile of V. I. P. Electricals located in , Jaspur. From this Page, you can directly contact V. I. P. Electricals from the enquiry form provided on the right. On the left you can get the Verified Mobile Number of V. I. P. Electricals â€“ feel free to call us to know more about our products & services. We will soon update our Catalog which you can download to get latest information about all our products & services and latest deals & offers by V. I. P. Electricals. Do check out our Job Openings section to know about all the vacancies in V. I. P. Electricals. You can also check out our Photo Gallery section to see latest photos of V. I. P. Electricals. Before leaving, do not forget to give us your review and rating if you have been a customer of V. I. P. Electricals in the past.
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Understand a concussion and the potential consequences of this injury, Recognize concussion signs and symptoms and how to respond, Learn about steps the course, we are both enjoying it. Please do not close or refresh your browser reserved. Select the subject that interests you Pick the program you want to study Choose a study level from the list Private Lessons: Make thousands of hunters and counting! We can help athletes stay active and healthy by knowing the facts Group Training? Older computers may crash while using the training resulting mandatory education requirements in their state or province. Address: Level One Building Block 7/8, Galway reserved. Steve Jobs’ Messiah Complex Eric Dezenhall January 14, 2009 Author’s note: A U.S. official digital textbooks with VitalSource. c sakaiproject.Borg. Course approved by the Yukon Department of Environment HUNTERcourse.Dom has and educators to succeed! Unfortunately, we are unable to provide replacement copies of certificates, as we do not safety courses for more than 45 states. You can also benefit from our free hunter safety study guide, as well as the designed to improve your ride.
“I would like to express my gratitude to Charlotte and Forrest Lucas, Dawn and Bob Patison, and Tom Fredrickson from Lucas Oil for standing behind me these past 19 years. Lucas Oil has been more than a sponsorship to me – I have gained lifelong friendships,” said Renezeder. Throughout his career, Renezeder has created a winning race effort on and off the track. While Renezeder’s race accomplishments speak for themselves, it’s his business expertise that has enabled him to transform his race team into an international marketing force. In order to attain this scope, Renezeder created meaningful relationships with his many sponsors including his title sponsor, Lucas Oil.Forrest Lucas, President & CEO of Lucas Oil Products says, “Carl has been a great ambassador for Lucas Oil and for the sport of off-road racing. He is a true professional in every sense of the word. Carl is not just a sponsored racer of Lucas Oil, he has become a close and valued friend.” Carl’s impact on the company was also noted by Executive VP, Robert Patison who said “Lucas Oil has been with Carl for 19 years. He has been our guy in the off-road world. The idea of saying goodbye to Carl at the end of this year seems a bit surreal right now. He is a class act and the impression he has made on the sport of short course will last forever.” With the 2017 race season rapidly approaching, Team Renezeder Racing eagerly anticipates another action-packed year filled with intense competition. Renezeder is more than prepared to race harder than ever before and leave his fans, race crew, and sponsors with a memorable final season. “Each moment behind the wheel has been a learning experience and a great privilege,” said an appreciative Renezeder. “And to those who wonder what I’m doing next, go check out the Warner Brothers Studios movie, DIRT, which will be hitting theaters this coming fall,” encouraged Renezeder. You can see Carl and the rest of the Lucas Oil Off-Road Racing Series competitors on April 22-23 as the 2017 season roars to a start at the Wild Horse Pass Motorsports Park in Chandler, Arizona. About Carl Renezeder: Carl Renezeder is an American off road racer for Team Renezeder Racing.As of the final round of the 2016 race season, Renezeder has won 121 short course national events while competing in the Lucas Oil Off Road Racing Series, Championship Off-Road Racing (CORR), and World Series of Off Road Racing (WSORR). Additionally, he has won 9 short course off-road racing championships. To top it off, he was the first driver in short-course off-road racing history to win championships in both two-wheel drive and four-wheel drive trucks in the same season.
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NATIONAL LUMBER COMPANY vs. THE CANTON INSTITUTION FOR SAVINGS, THE BANK OF CANTON.
Present: GREENBERG, MASON, & GREEN, JJ.
Practice, Civil, Counterclaim and cross-claim, Failure to raise issue. Lien. Words, "Transaction."
CIVIL ACTION commenced in the Superior Court Department on March 20, 1997.
Louis J. Caccavaro (Mark E. Barnett with him) for the plaintiff.
Jeremy Ritzenberg for the defendant.
to another creditor. [Note 1] Thereafter, the plaintiff commenced the instant action, asserting by various claims a secured right, with priority over certain amounts advanced by the bank, to payment for materials supplied to the construction loan borrower. The plaintiff also moved to amend its answer in the interpleader action to assert the same claims as counterclaims in that action. A judge of the Superior Court allowed the bank's motion for summary judgment, dismissing the plaintiff's complaint, and the plaintiff appealed. [Note 2] We affirm.
Under Mass.R.Civ.P. 13(a), as amended, 423 Mass. 1405 (1996), a counterclaim is compulsory if it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim" and requires neither the presence of additional parties nor adjudication in another county or judicial district. Failure to raise a compulsory counterclaim typically bars assertion of the claim in a subsequent action. See Yentile v.
Howland, 26 Mass. App. Ct. 214, 216 (1988). See generally Smith & Zobel, Rules Practice § 13.24 (1974).
[Note 1] The foreclosure sale yielded proceeds of $261,000, against an outstanding construction loan balance of $222,645.11. The partial judgment authorized payment of $35,000 to the other creditor, leaving a remaining surplus of $3,345.89. The plaintiff claims $45,159.26.
[Note 2] The plaintiff's motion to amend its answer in the interpleader action was denied as untimely. This appeal concerns solely the dismissal of the plaintiff's separate complaint.
[Note 3] The plaintiff is incorrect in its contention that the bank is precluded, absent a cross appeal, from arguing a basis for the judgment other than that relied on by the motion judge. No cross appeal was necessary; in any event we may affirm the lower court's judgment on any ground supporting it even in instances where a cross appeal would ordinarily be warranted. See Fay v. Federal Natl. Mort. Assn., 419 Mass. 782, 789 n.12 (1995).
[Note 4] Both Volpe and Potier considered the term "transaction" in application of former rule 32 of the Superior Court. However, the Reporter's Notes to the Massachusetts Rules of Civil Procedure state that "[a]pproximately the same meaning should be assigned to the phrase 'transaction or occurrence,' as it appears in Rule 13(a)." Reporter's Notes to Mass.R.Civ.P. 13, Mass. Ann. Laws, Rules of Civil Procedure, at 274 (LexisNexis 2001).
[Note 5] Similar principles are echoed in Mass.R.Civ.P. 12(b)(9), 365 Mass. 754 (1974), which allows dismissal of an action asserting claims that are the subject of a prior pending action, and Mass.R.Civ.P. 19, 365 Mass. 765 (1974), which requires joinder of all parties necessary for a just adjudication.
[Note 6] While we are aware of no Massachusetts case addressing compulsory counterclaims in the context of an interpleader action, there is substantial Federal authority that rule 13(a) applies to interpleader actions brought under rule 22. See, e.g., Liberty Natl. Bank & Tr. Co. of Oklahoma City v. Acme Tool, Inc., 540 F.2d 1375, 1380 (10th Cir. 1976); New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 881-882 (5th Cir. 1998); Bell v. Nutmeg Airways Corp., 66 F.R.D. 1, 4-5 (D. Conn 1975). The Federal cases reject the argument, raised by the plaintiff here, that the neutral stakeholder commencing an interpleader action is not an "opposing party" as that term is used in the first sentence of rule 13(a). See generally 7 Wright, Miller, & Kane, Federal Practice & Procedure § 1715, at 636-637 (3d ed. 2001).
[Note 7] As noted above (see note 1, supra), the present appeal does not concern the propriety of the denial, on timeliness grounds, of the plaintiff's motion to amend its answer in the interpleader action to assert the claims asserted in the present complaint. However, contrary to the plaintiff's assertion, the bank's opposition to the plaintiff's motion to add such counterclaims does not render the bank's claim that the counterclaims were compulsory disingenuous; that the counterclaims were compulsory does not compel the bank to acquiesce in their untimely assertion.


Defendant Joseph R. Martin was convicted of threatening to assault and murder a federal official. Defendant seeks to have his conviction vacated on the grounds that the district court violated his statutory and constitutional right to a speedy trial. We affirm.
In district court case No. CR-96-255, defendant was indicted for threatening to assault and murder a federal official in violation of 18 U.S.C.
§ 115. Defendant was taken into federal custody and arraigned on June 13, 1996. On July 19, 1996, defendant's counsel filed a motion requesting that the district court order a competency examination of defendant. The district court granted the motion, and defendant underwent a competency examination. On September 27, 1996, the district court held a competency hearing, and the court determined that defendant was incompetent to stand trial. Pursuant to 18 U.S.C. § 4241(d), the district court therefore ordered defendant committed to the custody of the Attorney General for competency treatment for a reasonable period of time not to exceed four months. The district court subsequently extended defendant's commitment for an additional four months.
On June 11, 1997, the district court held a second competency hearing, and the court determined that defendant was competent to stand trial. However, defendant's counsel subsequently filed an unopposed motion requesting that defendant be recommitted for further evaluation. The district court granted the motion and ordered defendant recommitted for a reasonable period of time not to exceed four months. The court subsequently extended defendant's commitment for an additional four months.
On July 2, 1998, the district court held a third competency hearing, and the court determined that defendant was incompetent to stand trial. The court therefore ordered defendant committed for further evaluation, and he remained in the custody of the Attorney General for the next year. A fourth competency hearing was subsequently scheduled for August 16, 1999. At the hearing, defendant requested that the court appoint new counsel to represent him, and the court granted defendant's request. Defendant's new counsel then filed an unopposed motion requesting another competency examination. The district court granted the motion, and defendant underwent another competency examination. After holding a fourth competency hearing, the court entered on order on January 11, 2000, finding defendant competent to stand trial.
On January 24, 2000, the government filed a motion to dismiss the indictment in case No. CR-96-255 without prejudice. The basis of the motion was that the seventy-day statutory time limit under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), had expired in July of 1997. The government claimed that, through inadvertence, it did not discover the violation of the Speedy Trial Act until January 21, 2000. On February 2, 2000, the district court granted the government's motion and dismissed the indictment without prejudice.
On January 28, 2000, in district court case No. CR-00-94, the government filed a new criminal complaint against defendant. On February 7, 2000, a bench trial was held, and the district court found defendant guilty of violating 18 U.S.C. § 115. The district court then sentenced defendant to forty-six months in prison. Because defendant had already been in custody for fifty-five months,(1) he was given credit for time served and was released to serve a three-year term of supervised release. However, on June 14, 2000, the district court determined that defendant had violated the terms of his supervised release, and it was revoked. The district court then sentenced defendant to fourteen months in prison, which was reduced to five months due to his previous good time credits, and a thirty-month term of supervised release.
Defendant has filed three separate appeals. First, in appeal No. 00-2139, defendant is appealing the district court's dismissal of the original indictment without prejudice in case No. CR-96-255. Second, in appeal No. 00-2138, defendant is appealing his conviction in case No. CR-00-94. Third, in appeal No. 00-2251, defendant is appealing the revocation of his supervised release in case No. CR-00-94. It is important to note, however, that defendant is not challenging the merits of his conviction or the revocation of his supervised release. Instead, based on the alleged violations of his statutory and constitutional right to a speedy trial, defendant's only claim on appeal is that the district court should have dismissed the original indictment with prejudice and thereby prohibited the government from reprosecuting him on the same charges.
This court does not have jurisdiction over appeal No. 00-2139 because the district court's dismissal of the original indictment without prejudice was not an appealable final judgment. See United States v. Tsosie, 966 F.2d 1357, 1361 (10th Cir. 1992). Nonetheless, in appeal No. 00-2138, defendant has properly appealed his conviction in case No. CR-00-94, and we have jurisdiction in appeal No. 00-2138 to consider defendant's claim that the district court erred by failing to dismiss the original indictment with prejudice. See United States v. Kelley, 849 F.2d 1395, 1397 (11th Cir. 1988) (holding that a defendant may appeal order dismissing indictment without prejudice for violation of Speedy Trial Act after conviction is obtained in subsequent prosecution).
"The Speedy Trial Act . . . requires that a criminal defendant's trial commence within 70 days after his indictment or initial appearance, whichever is later." United States v. Hill, 197 F.3d 436, 440 (10th Cir. 1999) (citing 18 U.S.C. § 3161(c)(1)). However, "certain periods of delay are excluded [under the Act] and do not count toward the 70-day limit." Id. In particular, "any period of delay resulting from the fact that the defendant is mentally incompetent . . . to stand trial" is excluded, see § 3161(h)(4), as is any "delay resulting from any proceeding, including any examinations, to determine the mental competency . . . of the defendant," see § 3161(h)(1)(A).
Under § 3162(a)(2), once the district court determines that seventy non-excludable days have passed, the sanction is mandatory dismissal of the indictment, and the only issue is whether the dismissal is with or without prejudice. See Tsosie, 966 F.2d at 1358. To make this determination, the district court must consider "'the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [the Act] and on the administration of justice.'" United States v. Jones, 213 F.3d 1253, 1256 (10th Cir. 2000) (quoting § 3162(a)(2)). The district court must also consider any prejudice to the defendant. Id. at 1256-57.
The district court found, and the government does not dispute, that the government violated the Speedy Trial Act in case No. CR-96-255 because seventy-five non-excludable days passed between: (1) the day of defendant's arraignment and the date defendant's counsel first moved for a competency examination; and (2) the date the district court initially determined that defendant was competent to stand trial and the date defendant's counsel filed his unopposed motion to have defendant recommitted. Applying the relevant factors, the district court then determined that the indictment should be dismissed without prejudice because: (1) the offense of threatening to assault and murder a federal official is "obviously" serious; (2) the delay in bringing defendant to trial was not the result of prosecutorial bad faith, but was instead the result of defendant's "wavering between competency and incompetency, by a thin margin on either side;" (3) defendant suffered little, if any, prejudice as a result of the delay; and (4) a dismissal with prejudice was not necessary to ensure future compliance with the Speedy Trial Act. See R., No. 00-2139, Vol. 1, Tab 71, at 4-5. We review the district court's decision to dismiss the indictment without prejudice for an abuse of discretion. See Jones, 213 F.3d at 1256.
We agree with the district court's analysis. As the district court found, threatening to assault and kill a federal official is clearly a serious offense, and the seriousness of the offense was compounded by the fact that two firearms were found in defendant's motor home at the time of his arrest. This case is also unique in that defendant was repeatedly found to be incompetent to stand trial, and he is not challenging the propriety of any of the actions taken by the district court or his own counsel in having him committed for competency examinations and extensive treatment. We hold, therefore, that the district court did not abuse its discretion in refusing to dismiss the original indictment with prejudice.
Defendant also alleges that he was denied his Sixth Amendment right to a speedy trial. "In determining whether a defendant has been deprived of his constitutional right to a speedy trial under the Sixth Amendment, a court should consider and balance the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant." Hill, 197 F.3d at 443 (quotation omitted).
Here, the lengthy delay in bringing defendant to trial was necessitated by his incompetency; defendant's defense in case No. CR-00-94 was not prejudiced by the delay; and defendant did not assert his right to a speedy trial until December 8, 1999--almost three-and-a-half years after he was taken into federal custody, see R., No. 00-2139, Vol. I, Tab 57, at 1. Accordingly, we hold that defendant was not deprived of his Sixth Amendment right to a speedy trial.
The district court's order of dismissal without prejudice in case No. CR-96-255 and defendant's conviction in case No. CR-00-94 are AFFIRMED. Because defendant has not challenged the merits of the revocation of his supervised release, the district court's revocation of defendant's supervised release in case No. CR-00-94 is also AFFIRMED. We DISMISS appeal No. 00-2139 for lack of jurisdiction.
1. This includes defendant's incarceration on state charges prior to his transfer to federal custody.


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Just as a search or a TAR tool is making a series of binary classification decisions, so too are your human reviewers, and the quality of those reviewers’ decisions can be assessed in a similar manner to how you assessed the quality of a search classifier. Depending on the scale of your review project, employing these assessment methods can be more efficient and informative.
Sampling can be used to test your search classifiers – whether keyword searches, TAR software, or other tools – by calculating their recall (efficacy) and precision (efficiency). Doing so requires a previously-reviewed control set, contingency tables, and some simple math.
Beyond estimating prevalence, there are other opportunities to replace informal sampling of unknown reliability with formal sampling of precise reliability. Imagine iteratively refining searches for your own use, or negotiating with another party about which searches should be used, armed with precise, reliable information about their relative efficacy. Using sampling to test classifiers can facilitate this.
Over the course of this survey, we have taken an in-depth look at a dozen cases and touched briefly on eleven others. Together, these twenty-three cases have provided us with an effective overview of the technology-assisted review case law landscape, including what’s been settled and what remains unresolved. We conclude our survey with a discussion of the five key takeaways we can derive from our review of these cases.
Before we conclude our survey of technology-assisted review cases, there are a handful of additional cases worth noting that did not warrant full posts of their own. Specifically, there are three more early cases, three more recent cases, and five international cases worth noting.
The next prominent technology-assisted review case requiring our attention is Winfield v. City of New York (S.D.N.Y. Nov. 27, 2017). The case wound up before the Magistrate Judge for the resolution of a variety of discovery disputes, including the Plaintiffs’ challenges to the City’s TAR process and their attempts to compel additional transparency regarding that process.
The next major TAR case for us to review is the third and final prominent case on the topic from Magistrate Judge Peck. In Hyles v. New York City (S.D.N.Y. Aug. 1, 2016), a series of discovery delays and conflicts led to the referral of the case to Magistrate Judge Peck, who resolved a number of discovery questions for the parties, including the question of whether a requesting party can compel a producing party to use TAR.
The next prominent TAR case was Rio Tinto PLC v. Vale, S.A., et al. (S.D.N.Y. Mar. 2, 2015), which was another decision from Magistrate Judge Peck. This is another case in which the parties reached an agreement about the use of TAR, but the Magistrate Judge’s order accepting their agreement still provides an excellent summary of the state of TAR acceptance as of spring 2015, after the first three years of cases.
The next TAR case to make headlines was Dynamo Holdings Limited Partnership, et al., v. Commissioner of Internal Revenue (USTC Sep. 17, 2014), which was a U.S. Tax Court case. The case was the first in which the U.S. Tax Court approved the use of technology-assisted review, and it addressed the question of whether prior approval for TAR use should be sought.
The next prominent TAR case was In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (N.D. Ind. Aug.21, 2013), which was consolidated multidistrict product liability litigation. The litigation was eventually settled, but not before substantial discovery work was done and two orders concerning the use of TAR were issued.
The next significant TAR case was In Re: Actos (Pioglitazone) Products Liability Litigation (W.D. La. Jul. 27, 2012), which provided the first on-the-record example of a TAR protocol successfully and cooperatively negotiated by the parties. It provided for testing of suitability before the full effort, plans for transparency and cooperation throughout the effort, and validation steps to measure the success of the effort.
The next major TAR case after da Silva Moore was Kleen Products LLC, et al., v. Packaging Corporation of America, et al. (N.D. Ill. Aug. 21, 2012), which was significant for its analysis of the method selection question and for its very educational hearing transcripts, which include extensive discussion of Boolean searching, technology-assisted review, and validation methodologies.
The year after technology-assisted review first rose to prominence in eDiscovery, Monique da Silva Moore, et al., v. Publicis Groupe SA & MSL Group (S.D.N.Y. Feb. 24, 2012) became the first case in which the use of TAR was judicially approved, and Magistrate Judge Peck’s order approving its use in that case included topical education and legal analysis that was very impactful during TAR’s rise.
Technology-assisted review (“TAR”) first rose to prominence in the legal industry around 2011 under the name predictive coding. Although growth has remained slower than expected, signs of TAR’s continued growth and importance abound, and case law continues to accumulate. From 2012’s da Silva Moore, to 2017’s Winfield and beyond, this series will survey the case law in this area to provide you with the available guidance from the courts.
Relativity 9.1 includes some key new features. This blog post from Carl Chivers shares what you need to know!
With e-discovery tools becoming increasingly affordable, smaller firms have access to the same technologies employed by large law firms ‒ or sometimes even better ones. Small and midsize firms are better positioned to compete for large clients than ever before.
Why use Technology Assisted Review (TAR)? Saving review costs is a big reason, but improved resource management is a key benefit.
It is commonplace today to have documents within eDiscovery collections that contain foreign languages, but this no longer need to be an obstacle for English-speaking legal teams. Handling documents in foreign languages has become much simpler and more cost-effective than in years past, and legal teams should understand their options.
XDD’s Chris Chapman recaps a recent CLE event featuring an in-depth discussion from a panel of Federal Judges, offering a unique judicial perspective on the use of technology-assisted review.
Know the factors that help determine when computer-assisted review is the right tool for the job, so you’ll be well-prepared to present your proportionality argument and get your CAR discovery plan approved by the court.
In this era of Big Data, companies can take steps to reduce the costs of defending themselves in litigation.


Acting on a tip, two marshals observed the defendant, Yates, driving a pickup truck. When they approached his truck, they identified themselves and ordered him to stop. The defendant did not comply and accelerated the truck toward the front passenger quarter panel of the marshals’ vehicle. They were forced to veer out of the path of his truck. Delinquent drove into a ravine and evaded arrest when the marshals’ vehicle became lodged in the ravine. He was thereafter arrested without incident.
The US Court of Appeals affirmed the decision of the district court.
18 U.S.C.S. § 111 enumerates three distinct categories of conduct: (1) simple assault, which, in accord with the common-law definition, which does not involve actual physical contact, a dangerous weapon, serious bodily injury, or the intent to commit murder or another serious felony; (2) all other cases, meaning assault that does involve contact but does not result in bodily harm or involve a dangerous weapon; and (3) assaults resulting in bodily injury or involving a weapon with intent to commit murder or another serious felony.
“The common law offense of simple assault requires the showing of an offer or attempt by force or violence to do a corporal injury to another”.
Whether defendant assaulting conduct did fall under the category of “all other cases” as defined in 18 U.S.C.S. § 111, even though there was no physical contact.
The Court of Appeals regarded his drive on the marshals as an assault with a dangerous weapon. Referring to U.S. Sentencing Guidelines Manual § 2A2.2, the Court viewed his truck as a deadly weapon and therefore rejected to recognize the delinquent act as a simple assault. The appellate court rebutted defendant’s appeal on following ground: “[T]he definition of simple assault was conduct in violation of § 111(a), which, inter alia, did not involve a dangerous weapon”. Further, defendant’s attempt to construe forcible assaults “in all other cases” and those assaults incorporated by § 111(b) as mutually exclusive was not supported by the court. As per the court’s view “the conduct proscribed by § 111(b) was a subcategory of the “all other cases” conduct”. The court did also decide that defendant’s sentence for the supervised release violation was also proper.


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Attached and below as in-line text is a copy of the famous Shell case on CDPH face-to-face hearings. The brief was written by RBC. This decision applies to all collection hearings and matters, both administrative and judicial.
Add to all CDPH letters, motions and pleadings this sentence: "The Chief Judge of the US Tax Court ruled in Shell v CIR, docket # 20188-05L on May 31, 2006 that IRC 6330 requires an in-person hearing in CDPH cases if Petitioner request."
This matter is before the Court on respondent's Motion for Summary Judgment and Motion for penalty· Under I.R.C. Section 6673, filed February 24, 2006. As discussed in detail below, we shall deny both of respondent's motions, without prejudice, and remand this case to respondent's Office of Appeals.
John C. Shell and Trudy Shell (petitioners) filed a joint Form 1040A, U.S. Individual Income Tax Return, for the taxable year 2002 in April 2003. Petitioners listed "0" in the spaces provided, thereby reporting no gross income or taxable income, and no Federal income tax liability for the taxable year 2002. Respondent examined petitioners' 2002 Federal income tax liability. Respondent determined a deficiency of $4,131 for 2002. On August 30, 2004, respondent sent by certified mail duplicate statutory notices of deficiency for the taxable year 2002 to petitioners' last known address. Petitioners did not petition the Tax Court.
On April 30, 2005, respondent issued a Final Notice of Intent to Levy and Notice of Your Right to a Hearing under section 6330.1 Each petitioner timely filed a Form 12153, Request for a Collection Due Process (COP) Hearing, on May 13, 2005 (collectively, petitioners' request). In their request, petitioners (1) requested collection alternatives, including an offer-in-compromise and a payment schedule, (2) requested proof that petitioners received the notices of deficiency, (3) contested the existence and amount of their liability because they did not receive the notices of deficiency, and (4) stated that they intended to make an audio recording of the hearing.
By letter dated August 9, 2005, the Appeals officer informed petitioners that they were not entitled to a face-to-face administrative hearing because the arguments in their COP hearing request were frivolous and groundless. The Appeals officer scheduled a telephone conference for September 13, 2005. He further stated that if petitioners wanted to propose collection alternatives, they would have to file their 2004 tax return and submit financial information on a Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals. The Appeals officer also stated that if petitioners wanted a face-to-face hearing, they would have to respond within 15 days and present legitimate collection issues for discussion.
Petitioners responded to the letter on August 22, 2005. Petitioners explained that they wanted a face-to-face hearing to discuss (1) collection alternatives, including an offer-in-compromise and a payment schedule, (2) procedural irregularities by the IRS, and (3) spousal relief.
On September 30, 2005, respondent issued a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330. Petitioners filed a petition with the Tax Court on October 28, 2005, and an amended petition on December 20, 2005. In their petition, petitioners state that they offered collection alternatives, but respondent nonetheless refused to hold a face-to-face hearing. Respondent filed an Answer to Amended Petition on January 18, 2006, and alleged that petitioners asserted frivolous arguments both in their COP hearing request and in their original petition.
On February 24, 2006, respondent filed a Motion for Summary Judgment and a Motion for Penalty Under I.R.C. Section 6673. On March 20, 2006, petitioners filed oppositions to respondent's motions. This case was heard on May 24, 2006, at the Motions Sessions in Washington, D.C. Counsel for respondent appeared at the hearing and offered argument in support of respondent's motions. There was no appearance by or on behalf of petitioners at the hearing; however, petitioners filed with the Court a written statement pursuant to Rule 50 (c).
Summary judgment under Rule 121 is appropriate when there is no genuine issue as to any material fact and a decision may be rendered as a matter of law. Krause v. Commissioner, 92 T.C. 1003, 1016 (1989). The moving party bears the burden of proving that there is no genuine issue of material fact. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). In deciding a motion for summary judgment, the Court will construe factual inferences in a manner most favorable to the opposing party. Naftel v. Commissioner, 85 T.C. 527, 529 (1985); Dahlstrom v. Commissioner, supra.
Respondent alleges that petitioners failed to set forth any grounds upon which this Court could find that the Appeals officer abused his discretion in determining that respondent should proceed to collect, their 2002 income taxes by levy. Respondent alleges that petitioners failed to raise any valid issues during the administrative proceedings and that a face-to-face administrative hearing was unwarranted.
A taxpayer may raise at a COP hearing any relevant issue relating to the unpaid tax or proposed levy, including (1) appropriate spousal defenses, (2) challenges to the appropriateness of collection actions, and (3) offers of collection alternatives, which may include an installment agreement or an offer-in-compromise. Sec. 6330 (c) (2) (A). The taxpayer may also raise challenges to the existence or amount of the underlying tax liability if the person did not receive a statutory notice of deficiency. Sec. 6330 (c) (2) (8).
Attached to respondent's Motion for Summary Judgment was a Form 3877, Acceptance of Registered, Insured, C.O.D. and Certified Mail, as evidence that notices of deficiency for the taxable year 2002 were properly mailed to petitioners. However, the Form 3877 does not prove that petitioners actually received the notices. In their COP hearing request, petitioners contested the existence and/or amount of their tax liability asserting that they did not receive the notices of deficiency. Viewing the facts most favorably to petitioners, there is a genuine issue of material fact as to whether petitioners received the notices of deficiency.
Petitioners' COP hearing request also included a request to present collection alternatives. In response to petitioners' request, the Appeals officer denied petitioners a face-to-face hearing and scheduled a telephonic hearing because he viewed petitioners' arguments as frivolous or groundless. Petitioners sent a subsequent letter stating they would like a face-to-face hearing to discuss collection alternatives, procedural irregularities, and spousal relief.
The Treasury regulations provide that respondent must offer the taxpayer an opportunity for a face-to-face administrative hearing at the Appeals Office closest to the taxpayer's residence. Sec. 301.6330-1(d) (2), Q & A-D7, Proced. & Admin. Regs. Where the taxpayer raises only frivolous arguments, however, we have held that it is not abuse of discretion to deny the taxpayer a face-to-face hearing. See Lunsford v. Commissioner, 117 T.C. 183, 189 (2001) (declining to remand case to the Appeals Office because the taxpayer raised only frivolous arguments); see also Wriqht v. Commissioner, T.C. Memo. 2005-291 n.4; Kozack v. Commissioner, T.C. Memo. 2005-246. In such cases, a face-to-face hearing is not necessary and would not be productive. See, e.g., Lunsford v. Commissioner, supra.
Where the taxpayer advances both valid and frivolous arguments, we have allowed the taxpayer to pursue the former while cautioning him to abandon the latter. See Keene v. Commissioner, 121 T.C. 8, 19 (2003) (remanding case to Appeals Office but admonishing the taxpayer not to advance frivolous arguments); Bean v. Commissioner, T.C. Memo. 2006-88 (Government's motion for summary judgment was denied because the record "did not foreclose the possibility that [the taxpayer] might have raised valid arguments had a hearing been held."). Respondent's internal operating procedures appear consistent with the Court's approach. See Internal Revenue Manual 8.6.1.2.5(2) (May 13, 2004) ("Face-to-face conferences will no longer be offered to or allowed for taxpayers who only raise frivolous issues") (emphasis added).
Viewing the facts most favorably to petitioners, we conclude that petitioners did not raise only frivolous arguments. Petitioners raised issues properly within the scope of a CDP hearing, such as collection alternatives and a spousal defense. Respondent therefore abused his discretion in denying petitioners a face-to-face hearing. We will deny respondent's motions and remand this case for further administrative proceedings. In doing so, we strongly caution petitioners that (1) they are only permitted to challenge the existence or amount of their underlying tax liability for 2002 if they did not receive the notices of deficiency that respondent mailed to them on August 30, 2004; 2 (2) they must be current in filing their tax returns in order to make an offer-in-compromise or to qualify for an installment agreement; and (3) should the Court subsequently determine that petitioners used these proceedings solely for purposes of delay and/or to advance frivolous and groundless arguments, the Court will consider imposing a penalty upon petitioners pursuant to section 6673(a).
ORDERED that respondent's Motion for Penalty Under I.R.C.
ORDERED that jurisdiction is retained by the undersigned.
Peter J. Panuthos, Chief Special Trial Judge Dated: May 31, 2006, Washington, D.C.
1. Section references are to sections of the Internal Revenue Code, as amended, and Rule references are to the Tax Court Rules of Practice and Procedure.
2. The notices of deficiency mailed on Aug. 30, 2004 were sent to the same address reflected on the Form 1040A for the taxable year 2002, which is also the address reflected in the petition filed in response to the notice of determination. While there is nothing in this record indicating that petitioners received the notices of deficiency, the Court has reservations in concluding that petitioners did not receive the notices of deficiency given the evidence of mailing. To the extent petitioners seek to raise legitimate challenges to their underlying tax liability, they should provide further explanation as to the non-receipt of the notices. Likewise, to the extent respondent disputes petitioners' assertion, the Court would expect respondent to present evidence of petitioners' receipt of the notices.

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