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IBM announced Thursday (7/29) that it has agreed to purchase Cyanea, an Oakland, Calif.-based mostly privately held company founded in 2001 that makes a speciality of utility monitoring and administration application. IBM isn't disclosing particulars of the transaction or fiscal terms.
Cyanea’s expertise can be built-in into IBM’s Tivoli programs administration utility products, Robert LeBlanc, widely wide-spread supervisor, IBM utility and Integration Middleware Division, told newshounds in a conference name. together with items from IBM’s contemporary acquisition of Candle, the Cyanea utility makes it possible for Tivoli to provide complete administration of composite business purposes, he said.
The utility developed by way of Cyanea isolates and determines where efficiency complications are taking place in allotted applications, mentioned James Chong, president and chief govt officer at Cyanea, who's becoming a member of IBM.
Chong observed his research and construction work set out to fill a gap he found in aid management equipment, which he referred to do not isolate the issue to a particular software or provide a decision as to what exactly goes incorrect.
via pinpointing the issue in an application, it's less difficult to steer clear of bottlenecks during the software existence cycle from development via renovation, he mentioned.
The Cyanea application works with Java, CICS and IMS business purposes operating across mainframe and disbursed computing environments, in keeping with IBM. IBM’s LeBlanc referred to that beyond Tivoli, the Cyanea technology will also be built-in into IBM’s Rational and WebSphere products.
IBM and Cyanea had no longer been strangers prior to the acquisition announcement. LeBlanc noted both groups had been working in partnership just about when you consider that Cyanea’s inception. Chong stated that each one seventy five personnel from his business can be joining IBM.
IBM on the SHARE conference in Baltimore on Tuesday is previewing Tivoli administration utility for its equipment z mainframes it's supposed to boost the platform's standing in SOA and information superhighway computing.
4 upgraded items set to ship in fourth quarter 2006 are featured in IBM's plan. The application, based on IBM, helps users deal with new workloads and different computing environments while featuring a at ease management basis for SOA.
With SOA helping shoppers flip mainframe applications into a collection of reusable company services, mainframe workloads and elements need to be managed to simplify integration and lower costs, IBM noted.
IBM's Peter Marshall, supervisor of market strategy for Tivoli, observed the items make lifestyles easier for customers doing SOA implementations on system z.
"you could have bought to place all of your functions into a SOA and open it up potentially to numerous applications, to customers, to business partners, to end-users," Marshall talked about. "you've got bought to have the [IT] management americans be able to relaxed the application, diagnose it at the application stage and track that right down to the infrastructure at the lower back conclusion."
* Tivoli Omegamon XE version 4.1, in line with Candle expertise, can diagnose IT problems across purposes, middleware and methods that don't seem to be yet SOA-enabled. an in depth evaluation is supplied on different operating methods, databases, storage, networks and infrastructure utility. Connectivity to methods such as CICS transaction gateways is featured, as is Dynamic Workspace Linking, to hyperlink between distinct Omegamon items.
using mainframes has changed in fresh years, relocating faraway from being a big transaction engine to supporting SOA, stated analyst Joe Clabby, president of Clabby Analytics. "What IBM has achieved is it be created an ambiance where that you could run distinct Java digital machines" over virtualized infrastructure, the use of mainframes.
IBM's new Workload Scheduler, Omegamon and Composite utility supervisor products should aid cut back IT administrative fees, Clabby pointed out.
The Tivoli application is integrated with the IBM Tivoli exchange and Configuration administration Database, which enables for advice-sharing. choices include counsel from ITIL (suggestions expertise Infrastructure Library), which offers a group of best practices in gadget management.
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Three issues that rise to the top fast when developing a service-oriented architecture are governance, quality, and management. In this article, part of a Network World Data Center series on SOA, learn about 10 tools designed to help you build better apps and spot performance problems before they boil over.
Service-oriented architecture promises many positives: resource reuse, application integration, business agility and infrastructure flexibility, among others. But never do SOA proponents claim ease of management as one of the technology's glories.
Many of today's management tools are not granular enough to work in an SOA environment, says Rich Colton, application-integration manager at engineering and construction company Washington Group International in Boise, Idaho. "That's what has been lagging. Everybody says we need to manage the infrastructure, but first I need to understand what kind of resources we're demanding out of that infrastructure," he says.
The complex nature of SOA requires more than monitoring in production networks. IT managers must apply the technology trifecta of governance, quality and management tools, industry watchers say.
"Enterprise IT managers need to understand what part of SOA they are dealing with and what part they want to manage right now. It's not often a stand-alone product situation," says Randy Heffner, a Forrester Research analyst. "Sooner or later, if you are doing strategic SOA, you will need robust SOA management; and to get comparable functionality, you may have to get a set of products, rather than just one."
So, despite the promised benefits of a services-oriented approach, the complexity of SOA environments and applications demands management tools from inception to deployment to operations and beyond. In the face of such complexity, numerous vendors -- newcomers and veterans alike -- have taken on the challenge of SOA management. Some are tackling a specific stage in an SOA project's life cycle, while others are promising to address SOA in its entirety.
Here are 10 tools focused on addressing SOA's unique management challenges.
What does the product do? A policy-based run-time governance software suite, SOA Management System incorporates applications designed to address SOA performance in production. The suite includes a run-time repository, service network monitoring, SOA security, service-level monitoring and more.
Who's using the product? BT Group, H&R Block, Motorola and the U.S. Department of Defense, among others.
More on AmberPoint's SOA management play: "AmberPoint provides a broad integration solution for [SOA] management that can either operate as a stand-alone or integrate with other SOA and enterprise IT management infrastructures," Forrester's Heffner wrote in a 2006 report about SOA and Web services management.
Quick facts on AmberPoint: The company was founded in 2001, as Edgility Software, to address the complexities of Web services management. It adopted the new name in May 2002, after the term "amber point," which is used when an interesting DNA strand is discovered in the substance amber. The company says an amber point developed as it worked to address the challenges of managing distributed Web services.
AmberPoint is headed by founder John Hubinger, who had been vice president of sales at Forte and a vice president in Sun's software products and platforms division. To date, the company has received $41.4 million in venture funding.
What does the product do? AppSight performs automated problem resolution in SOA implementations to alleviate and eliminate application problems. Once in production, the software captures data and metrics that are used for problem resolution. The software reduces the manual effort required to recreate the problem and find a resolution.
Who's using the product? Clal Insurance, Community First Bankshares, Cox Communications and Mary Kay, among others.
More on BMC's SOA management play: When BMC, one of the top four management-software makers, acquired Identify Software in May 2006 for $150 million, it brought the AppSight technology into its broader business-service management portfolio. Combined with BMC's performance-management technologies, AppSight addresses SOA- and Web services-based application performance from development to user desktop.
Quick facts on BMC: BMC began life in the late 1970s as a partnership that did contract programming in the Houston area. The company took its name from the initials of the three partners: Scott Boulett, John Moores and Dan Cloer.
BMC, now headed by CEO Robert Beauchamp, recently acquired RealOps, an IT process automation vendor, and ProactiveNet, an application performance-management vendor, to deliver more products that tie IT performance to business success. The company reported $1.6 billion in revenue for fiscal 2007, which ended March 31.
What does the product do? SOA Solution, courtesy of CA's 2006 $375 million acquisition of Wily Technology, monitors the performance and availability of Web services, application performance on client machines and other components in the SOA environment. The suite includes three applications that autodiscover SOA components, such as enterprise service buses, portals and Web services; map SOA transactions and dependencies among the various components in the environment, and alert staff to performance issues.
Who's using the product? Amdocs, Bear Stearns, FedEx, Geico, Home Depot, Intel and Pacific Gas & Electric.
More on CA's SOA management play: With the Wily technology, CA addresses application, Web services and now SOA component and performance management, analysts say. In particular, they like its ability to discover SOA elements and monitor performance at the transaction level.
"With its ability to discover and monitor individual transactions across multiple components, Wily SOA Solution is a prime example of a suite enterprise buyers can use to ensure reliable Web service performance," says Julie Craig, an analyst with Enterprise Management Associates.
Quick facts on CA: In the past decade, CA (founded in 1976) has weathered investigations of its accounting methods that led to a management exodus and in some cases, convictions. Now headed by former IBMer John Swainson, CA is working to repair its reputation for poor customer service and retooling its products to address enterprise IT management. CA reported $3.9 billion in revenue for fiscal 2007, which ended March 31. CA, as well as BMC, could be an acquisition target of software companies like Oracle looking to do more in business management, according to industry speculation.
What does the product do? Part of HP's Business Technology Optimization for SOA line of SOA software and services, SOA Manager manages loosely coupled application components and Web services. The software can define and maintain a dynamic model of services, including software assets and virtual servers; and manage application and Web services performance within that SOA model, the company says.
Who's using the product? McKesson and Thomson Financial.
More on HP's SOA management play: By acquiring Mercury Interactive (which had acquired SOA vendor Systinet), HP equipped itself with a complete SOA life-cycle management package. "HP covers all three bases: Systinet provides governance tools, Mercury is the quality component, and HP itself has a long and successful history with management tools," says Jason Bloomberg, managing partner at ZapThink.
Quick facts on HP: HP has expanded its technology empire with several recent acquisitions, including last month's $1.6 billion purchase of Opsware and last year's $4.5 billion deal for Mercury Interactive. The company, founded in 1939 and named after its founders, William Hewlett and David Packard, reported more than $100 billion in revenue for fiscal 2007, which ended July 31. CEO Mark Hurd has said he's on a mission to build the company's software division -- less than 2% of the total 2006 revenue -- into the business that defines HP going forward.
What does the product do? It monitors, manages and controls the Web-services layer of IT architectures, and identifies the source of bottlenecks or failures.
Who's using the product? AAA Carolinas, ACI Global, St. Louis Area Regional Response System and Samsung Group, among others.
More on IBM's SOA management play: IBM provides multiple tools to address SOA management. Its consulting arm taps best practices in helping customers deploy and manage SOA environments.
"IBM's [SOA and Web-services management] solution, composed of 13 WebSphere and Tivoli products, is a strong performer. A firm that deployed all of these products would have a very deep solution for SOA management, but the sheer number of products would be daunting for many," writes Merv Adrian, a Forrester analyst, in a recent report. "Still, firms that are looking to provide individual, targeted elements of SOA management may be able to find what they need in a much smaller set of IBM's products."
Quick facts on IBM: Officially incorporated in 1911, IBM expanded its management software business in 1996, when it acquired innovative start-up Tivoli Systems. The purchase immediately strengthened Big Blue in distributed systems management and application management. With $91.4 billion in revenue for 2006 (and close to $50 billion reported so far this year), IBM is trailing behind top competitor HP in revenue, but its software business -- ranked second in size behind Microsoft -- represented 20% of its total revenue in 2006. CEO Sam Palmisano has said the company plans to bring that number up to 50%.
What does the product do? Aimed at Web developers, the software performs unit, regression, functional and load testing, as well as postdeployment monitoring tasks. It is a no-code solution, the company says.
Who's using the product? American Airlines, EOS International, Lockheed Martin, Pfizer and Wyndham International, among others.
More on iTKO's SOA management play: iTKO is uniquely addressing quality testing, industry watchers say. "iTKO has a very interesting perspective on SOA quality that goes beyond testing," ZapThink's Bloomberg says.
One year ago, the company made available free for download LISA WS-Testing, no-code Web-services test authoring and execution software. At last count, the software had been downloaded by more than 5,000 users and potential customers.
Quick facts on iTKO: "The company name used to mean interactive TKO (technical knockout), but we dropped those terms," says John Michelsen, chief scientist. "And LISA was actually a code name for our technology that branding professionals said we should keep. LISA is not really an acronym now; it's known on its own, but it stands for 'live interaction for services architectures.'" CEO Shridharr Mittal, previously a vice president at i2 Technologies, a supply-chain management-software company, has garnered $14 million in funding for iTKO, which was founded in 1999.
What does the product do? This flagship software provides an integrated set of tools at the XML software layer for automated Web-services governance, testing diagnostics and support. SOAPscope enables task-oriented collaboration regardless of role, skill set or development environment -- which makes it possible to find quickly and address any performance problems that arise, the company says.
Who's using the product? Charles Schwab, Fidelity and Visa, among others.
More on Mindreef's SOA management play: Mindreef competes most directly with iTKO, as both address the SOA quality realm. Quality testing during and after the design phase will help IT executives guarantee SOA projects succeed and ease the management of SOA applications in production environments, industry watchers say.
"Users are telling us they really did not pay attention to SOA design-time governance at the planning stage, but as soon as they tried to ramp up production, the need was bull's-eye obvious," said Peter Kastner, an Aberdeen Group analyst, in a recent report. "Continuous testing and a ruthless focus on quality are attributes of the best-performing SOA implementations."
Quick facts on Mindreef: Since its start, in 2001, the company has established partnerships with such industry heavyweights as BEA Systems, HP, IBM, Intel, Microsoft and Oracle. In March 2003 the company received $4 million from Kodiak Venture Partners and company co-founders Jim Moskun and Frank Grossman. CEO Lars Borgwing has served as CEO and board member of several companies, including XOsoft (acquired by CA), during the last 20 years.
The company name is meant to convey the notion of intelligent, organic growth in SOA, says Grossman, co-founder and CTO.
The International Business Machines Corporation (NYSE: IBM) of Armonk, NY, is a multinational technology and consulting corporation with an unshakable lead in the realm of intellectual property development. The corporation has spearheaded a lot of development in cloud computing and there is much speculation about the competitiveness of IBM’s POWER platform as an alternative to Intel’s cloud computing systems. This and other cloud services offered by IBM may become even more popular thanks in part to a dramatic simplification of its cloud computing contracts which was recently unveiled. The application of IBM’s Big Data technologies to multiple fields, from healthcare to social media, could bring the company greater revenues during 2015, according to some industry critics.
Because of the incredible scope of patenting activities in which IBM is involved, today’s Companies We Follow article will be the first of a two-part series on IBM. In this column, we’re focused on examining technological developments which we found in patent applications filed by this company with the U.S. Patent and Trademark Office. Piggybacking on the success of IBM’s Watson system, we feature a trio of technologies in the field of question answering systems. The provisioning of computing resources for creating more efficient technologies is also explored. Other patent applications that we discuss in more detail include methods of measuring audience attention, developing panoramic images from multiple images captured by drones as well as a technology for interrupting presentations in order to deliver important messages.
In recent years, IBM has gained a great deal of notoriety for the development of computer systems which include cognitive understanding elements for the creation of question answering systems. The latest IBM development in this field which has captured mainstream attention is Watson, a cognitive question answering system that beat two human contestants on the game show Jeopardy in 2011, including renowned Jeopardy champion Ken Jennings. To create such a powerful system, IBM developed Watson as a programmatic computing platform with natural language processing, dynamic learning and hypothesis generation and evaluation capabilities. Watson’s success has inspired a number of development projects in this field during recent years, many of which are built upon open-source architecture. In some cases, these projects are utilizing the same open-source technologies which are used as components of Watson.
Continually intrigued by this area of innovation, which in many ways seems akin to the Star Trek computer, were found a trio of patent applications that captured our attention. First, methods for determining answers to questions when those answers must be derived from information outside of the question answering system are the focus of U.S. Patent Application No. 20140365502, entitled Determining Answers in a Question/Answer System When Answer is Not Contained in Corpus. The method of generating an answer for an input question claimed by this patent application involves analyzing the input question to determine if it is requesting an answer which is calculable, retrieving data values for calculating the requested answer and outputting the calculated value to a user. This system would enable users to find answers to statistical questions when the specific statistic being sought isn’t included in the body of information used by the question answering system. In an example given by the patent application to illustrate its potential, this technology could allow a person to find the batting average of a Major League Baseball player in night games during a period of one month.
The speed with which question answering systems can process the annotation of metadata related to requested information should be improved thanks to the technology expressed within U.S. Patent Application No. 20140359421, which is titled Annotation Collision Detection in a Question and Answer System. This innovation is designed to reduce the chances that multiple annotators, or programs which attach metadata to text to build a data structure that can be referenced by other programs, will create conflicting annotations on the same portion of a text. The patent application would protect a method for resolving annotation conflicts that involves receiving content for annotating, performing annotation operations that generate a plurality of sets of annotations and resolving conflicts between first and second annotations to generate a resultant set of annotations.
This company has also developed a novel system for incorporating data collected from sensors on mobile devices into a corpus of information for answering questions in a question answering system. U.S. Patent Application No. 20140365517, titled QA Based on Context Aware, Real-Time Information from Mobile Devices, discusses the provision of a data collection framework which collects information from mobile devices in real time so that a question answering application can utilize the information to answer questions. The patent application claims a method for question answering that involves the receipt of a natural language query, translating that query into a data request, determining the collection requirements in a data capture system and using the data capture system to obtain raw data in real time. This innovation allows question answering systems to leverage the data that can be obtained through mobile edge capture and analytics (MECA), which provides a configurable framework for the primitive processing of raw data into phenomenon data which can be utilized by question answering applications.
The R&D activities of IBM also focus heavily on the development of better systems for provisioning computing resources. At the enterprise level, IBM has developed a suite of infrastructure resource management services for overseeing IT-driven infrastructure and supporting e-business initiatives pursued by organizations. One example is the Tivoli Provisioning Manager created by IBM for the automation of IT resource lifecycle management, which can create thousands of virtual machines and optimizes resource availability. In this and other resource provisioning technologies, a great focus is placed upon the quick deployment and scaling of services as well as the ability to integrate services with other environments and application program interfaces (APIs).
Two patent applications in this field stuck out during our recent survey of IBM innovations. The provisioning of features and capabilities in mobile devices is discussed within U.S. Patent Application No. 20140372598, titled Optimizing Resource Usage in Systems Which Include Heterogeneous Devices, Including Sensors and Smartphones. The computer-readable storage medium claimed by this patent application stores a program of executable instructions to perform a method of devices in a system that receives information associated with multiple devices, including their sets of capabilities, and determining capabilities that must be activated for the system. This technology is designed to reduce redundant or duplicate capabilities that may occur when creating an overall system from a plurality of individual devices.
Proactive resource provisioning for electronic books which offer dynamic content is described by U.S. Patent Application No. 20140365875, filed under the title Resource Provisioning for Electronic Books. The method of provisioning IT resources claimed here includes receiving a signal from an e-book reading device indicating that a user is approaching a practical procedure section within an e-book which includes an exercise to be performed by the user and pertaining to the book’s subject matter, determining what IT resources are required to perform the exercise and providing those resources so that they are ready when the user is ready to perform the exercise. This innovation could be applied to digital educational texts that are designed to offer exercises, mathematical operations or other dynamic content that enriches the educational experience.
Businesses need technologies that help them deliver an engaging experience when delivering presentations of all kinds. IBM has a focus on developing and implementing technologies for presentation based upon the specific needs of a company and who information is being presented, from executive staff members to large numbers of shareholders. This corporation has already developed systems such as the IBM Lotus Symphony Presentations, but as you’ll see in the next paragraph, we found some interesting technologies for business presentations that go well beyond slideshow software programs.
Interruptions during presentations are typically considered to be undesirable, which is perhaps why we were so interested in an IBM innovation seeking to create a system for interrupting a presentation to disseminate important information. That is exactly what was found when we explored U.S. Patent Application No. 20140372538, which is titled System and Method for Generating Intentional Interruptions During Gatherings. The patent application would protect a system for generating interruptions involving the use of a messaging module that generates a message for one or more recipients, an interruption management module which detects that a computing device is being used for a presentation and interrupting the presentation with the message if the recipients are in the audience. The interruption mechanisms utilized by this invention could include pop-ups, banners or other alerts that purposefully and temporarily switch the context of a conference so that the message, such as a text message or e-mail, can be delivered to audience members or the presenter. Techniques for assessing the level of attention which an audience is paying to a presenter are discussed within U.S. Patent Application No. 20140363000, entitled Real-Time Audience Attention Measurement and Dashboard Display. This patent application claims a method of determining the attentiveness of an audience within a room by using a computer to determine the amounts of wireless activity of a computing device within the room and initiate a display of a measure of attentiveness over the duration of the presentation to show changes in the measures of attentiveness.
It is crucial for businesses and individuals alike to make sure that they are operating and making decisions while in possession of the most accurate data possible. The expansion of the Internet has been helpful in some ways but it has also created a platform through which false data can be widely disseminated. Authentication of devices, especially mobile clients, has been an area of research for IBM in recent years, but we wanted to share a couple of technologies aimed at the authentication and verification of data developed by this company.
Public forums, such as message boards, are useful for communication among geographically dispersed members but are also susceptible to gathering incorrect information which may affect the decisions of others. One IBM innovation seeking to reduce this is explained within U.S. Patent Application No. 20140365571, entitled Automatically Determining Veracity of Documents Posted in a Public Forum. This method of determining the veracity of an online posting involves identifying a topic and action originators for the posting, collecting veracity information which is related to a set of action originators, assigning a veracity weighting to that set and providing a weighted veracity summary to viewers of the online posting. This technology improves on conventional methods of determining veracity for online postings which require ratings from human users. A technology for identifying fraudulent data in sets through the application of Benford’s law, which regards the frequency distribution of digits in data, could be protected for IBM through the filing of U.S. Patent Application No. 20140359759, filed under the title Fraudulent Data Detector. The patent application claims an apparatus for identifying suspicious data records that includes a hardware selector for identifying fields within records which are appropriate for a Benford analysis, a Benford analysis engine calculating a Benford distribution for each field and a hardware aggregator for summing a total score for each record analyzed. This innovation allows for the application of Benford’s law to small data sets, for which it is typically difficult to apply that law designed to identify patterns in a record.
There were a couple of other innovations included in patent applications filed by IBM with the USPTO that didn’t exactly fit a theme, but that we still felt were worth sharing. A technology for imaging large geographical areas with the use of unmanned aerial vehicles is explained within U.S. Patent Application No. 20140362107, titled Generating a Composite Field of View Using a Plurality of Oblique Panoramic Images of a Geographic Area. The computer-implemented method that would be protected generates a composite geo-referenced panoramic field of view image of a geographic area by calculating the geodetic coordinates for a plurality of pixels in a digital image capturing the geographic area, mapping the pixels with the calculated coordinates and generating a composite panoramic field of view based on the pixel mapping.
Computing systems that are designed to enable real-time collaborative techniques with a multitude of participants will benefit from the innovation expressed within U.S. Patent Application No. 20140365920, entitled Human-to-Human Collaborative Session Request Queue Processing. This technology is designed to address shortcomings in real-time collaboration systems that occur when a user has a multitude of pending sessions, which may make prioritizing the sessions difficult. The data processing system claimed here includes a messenger configured to couple with other messengers and queue management logic that prioritizes the incoming session requests based on weighted and applied rules; the system then presents the prioritized requests on a computer’s graphical user interface.
Finally, we were greatly intrigued by an IBM innovation regarded an embedded experience (EE) application which can be integrated into other applications and provide users with regularly updated and pertinent information. U.S. Patent Application No. 20140359474, titled Maximizing Information Consumption in Embedded Experience Apps/Pop-Ups and Newsfeed/Activity Streams, is directed at the updating of news feeds or other interactive elements within an application for the rendering of new content while also removing redundant data. The patent application claims a method for controlling information to be displayed on a display device which involves displaying interactable data on a first display view, detecting a user selection of the data, identifying redundant data between the electronic data and content to be rendered, removing the redundant data and displaying the content without the redundant data on a second display view.

matches:
in fine
Application No. 20140365502
Application No. 20140359421
Application No. 20140365517
Application No. 20140372598
Application No. 20140365875
Application No. 20140372538
Application No. 20140363000
Application No. 20140365571
Application No. 20140359759
Application No. 20140362107
Application No. 20140365920
Application No. 20140359474


Appeal from the United States District Court for the District of Utah.
Elizabethanne Claire Stevens, Office of the United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.
Scott Keith Wilson, Office of the Federal Defender, Kent R. Hart, Federal Public Defender for Utah, Salt Lake City, UT, for Defendant-Appellant.
Before BRISCOE, BALDOCK, and HARTZ, Circuit Judges.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.R.App.P. 32.1 and 10th Cir. R. 32.1.
MARY BECK BRISCOE, Circuit Judge.
Ezequiel Robles Esquivel (Esquivel) pled guilty to possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Esquivel sought a two-level reduction in offense level pursuant to § 3B1.2 of the Sentencing Guidelines (Guidelines) alleging he was a minor participant in the crime. The district court denied his motion and Esquivel appeals from that denial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Esquivel was stopped while driving on 1-70 for an equipment violation. As the officer spoke with Esquivel, he detected the odor of marijuana coming from inside the vehicle. A search of the vehicle revealed approximately 1.3 kilograms of methamphetamine.
During questioning, Esquivel stated that he had picked up the vehicle at a rest area in Utah and was transporting it to Colorado. Specifically, he stated a friend by the name of Efrin asked him to travel to Utah, pick up a vehicle, and drive it to Aurora, Colorado in exchange for $200 and some marijuana. Esquivel stated that Efrin had driven him to a rest area in a red Jeep Cherokee to retrieve the car. Although he did not remember the exact location of the rest area, he believed it was about forty-five minutes south of 1-70 on 1-15. Esquivel stated further that he had no knowledge that drugs were in the vehicle he retrieved. He also stated that he had transported a vehicle in this manner once before when he delivered a car from a Colorado residence to a mechanic shop where the vehicle was later stripped.
Officers located a cell phone inside the vehicle Esquivel was driving. Esquivel denied that he owned the phone. Phone records confirmed forty-eight calls were made from the cell phone on the day of the stop and that these calls were made to thirteen different area codes. As officers interviewed Esquivel, the cell phone rang. Esquivel agreed to return the call in an attempt to make contact with Efrin. Upon placing a call, he asked for Manuel, not Efrin. Esquivel later admitted that the name Efrin was fictitious and admitted further that he was aware that there were drugs in the vehicle. Officers also confirmed that the vehicle was registered to "Manuel Torres Juares."
After entering his guilty plea, Esquivel asked the district court to reduce his base offense level by two levels because he was a minor participant in a larger drug distribution scheme. The district court denied Esquivel's motion and sentenced him to 188 months of imprisonment.
Esquivel contends that the district court erred in denying his request for a § 3B1.2 minor participant reduction. We conclude the district court did not err because Esquivel failed to carry his burden to establish that he was a minor participant.
We review for clear error the district court's refusal to award a defendant a reduction for minor participant status under § 3B1.2. United States v. Virgen-Chavarin, 350 F.3d 1122, 1131 (10th Cir. 2003). The "`clearly erroneous' standard requires the appellate court to uphold any district court determination that falls within a broad range of permissible conclusions." Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 400, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); see also United States v. Santistevan, 39 F.3d 250, 253-54 (10th Cir. 1994) ("We will not disturb a district court's finding of fact unless it is without factual support in the record, or if after reviewing the evidence we are left with the definite and firm conviction that a mistake has been made.") (internal quotation marks omitted).
Section 3B1.2 of the Guidelines provides a range of adjustments for a defendant who "plays a part in committing the offense that makes him substantially less culpable than the average participant." U.S.S.G. § 3B1.2, cmt. n. 3(A). Specifically, § 3B1.2(b) permits a court to reduce a defendant's offense level by two levels if the defendant was a "minor participant in any criminal activity." Id. § 3B 1.2(b). According to the commentary that follows, "[t]his guideline is not applicable unless more than one participant was involved in the offense." Id. § 3B1.2, cmt. n. 2. "Participant," in turn, is defined as "a person who is criminally responsible for the commission of the offense, but need not have been convicted." Id. § 3B1.2, cmt. n. 1. "The determination of a defendant's role in the offense is to be made on the basis of all conduct within the scope of § 1B1.3 (Relevant Conduct) . . . and not solely on the basis of elements and acts cited in the count of conviction." Id. Ch. 3, Pt. B, intro. cmt.
"We interpret the Sentencing Guidelines as if they were a statute," United States v. Tagore, 158 F.3d 1124, 1128 (10th Cir. 1998), and the Commentary to the Guidelines as "authoritative unless [they] violate the Constitution or a federal statute, or [are] inconsistent with, or a plainly erroneous reading of" the Guidelines, Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).
The district court's decision of whether to apply a minor role adjustment under § 3B1.2 "is heavily dependent upon the facts of the particular case." Id. § 3B1.2, cmt. n. 3(C). Significantly, "[a]s with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant's bare assertion, that such a role adjustment is warranted." Id.; see also United States v. Salazar-Samaniega, 361 F.3d 1271, 1278 (10th Cir. 2004). We have held that the minor participant inquiry must "focus upon the defendant's knowledge or lack thereof concerning the scope and structure of the enterprise and of the activities of others involved in the offense." Salazar-Samaniega, 361 F.3d at 1277 (quoting United States v. Calderon-Porras, 911 F.2d 421, 423 (10th Cir. 1990)). A defendant bears the burden of proving, by a preponderance of the evidence, that he is entitled to a reduction under § 3B1.2. Virgen-Chavarin, 350 F.3d at 1131.
Moreover, Esquivel's assertions lack credibility for other reasons. For example, Esquivel stated that he was unaware he was transporting drugs, but later confessed he was aware of his cargo. Also, Esquivel stated that he was transporting the vehicle for a friend named Efrin, but later conceded that Efrin was fictitious. Clearly, the district court did not err in finding Esquivel's statements lacked credibility and were insufficient to justify a role reduction.
Esquivel's remaining evidence in support of his minor role argument is weak. Esquivel asserts that the red Jeep Cherokee which was reported as following him shows his limited involvement in the crime. Esquivel also asserts that since he owned neither the vehicle he was driving, nor the cell phone found in the vehicle, he was merely a minor participant. Likewise, he asserts that the fact that he only had $12 in his possession when he was arrested (money allegedly provided by Manuel for gasoline) supports his claim that he was a minor player. Nonetheless, the import of these facts is ambiguous at best and we conclude that the district court did not err in finding them insufficient to establish that Esquivel was a minor participant. See United States v. Heckard, 238 F.3d 1222, 1234 (10th Cir. 2001) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.") (internal quotation marks omitted). Further, as regards the cell phone, Esquivel's ownership of the phone appears less significant, when determining his role in the crime, than his extensive use of the phone to make numerous calls, including calls to thirteen different area codes.
Esquivel also argues that the district court erred in concluding that the quantity of drugs found in the vehicle precluded him from receiving a minor role adjustment. We disagree. The Commentary to § 3B1.2 establishes that "a defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or storing drugs and who is accountable under § 1B1.3 only for the quantity of drugs the defendant personally transported . . . is not precluded from consideration for" a minor participant reduction. U.S.S.G. § 3B1.2, cmt. n. 3(A). At sentencing, defense counsel argued "whether it was a large quantity or a small quantity [of drugs transported] is no longer taken into account" when conducting a minor participant inquiry. Appx., Vol. IV, p. 10. The district court disagreed with counsel's characterization, stating, "What [the Commentary] says is he's not precluded, but . . . the Court can certainly take [drug quantity] into consideration." Id. Defense counsel agreed. Because the district court did not hold that the Guidelines precluded Esquivel from being considered for a minor participant reduction, it did not err in this regard.
Esquivel argues further that the district court overemphasized the significance of the quantity of drugs found in the vehicle, because drug quantity is relevant to the role reduction inquiry only insofar as it reflects knowledge and degree of culpability. It is true we have expressed some concern regarding a district court's heavy reliance upon drug quantity when addressing a request for a minor role reduction. See United States v. Caruth, 930 F.2d 811, 816 (10th Cir. 1991) ("We are concerned by the court's reference to the quantity of drugs. . . . The quantity of drugs has already been taken into account in establishing the offense level and taking the quantity into account once again in deciding upon the applicability of adjustments for minimal or minor participation risks imposing double punishment."). Nonetheless, absent evidence that the district court applied an erroneous legal interpretation of the Guidelines, we have declined to remand for resentencing. See id. ("However, we are not persuaded that the district court was proceeding under an erroneous legal interpretation of the Guidelines when it refused to make a further two-point downward adjustment in [defendant's] favor.").
Here, the district court stated that Esquivel's role was "viable and important" and that he "engaged in similar behavior or conduct on at least one other occasion." Appx., Vol. IV, p. 11. The district court added that these factors, "combined with the significant amount of drugs involved," established Esquivel's role was not minor. Id. We conclude the district court noted the amount of drugs seized from the vehicle as an indicator of Esquivel's knowledge and degree of culpability.
Finally, Esquivel claims that the district court erred in finding that he had engaged in at least one other prior relevant drug transaction. However, even assuming this were true, the resulting error would be harmless in light of Esquivel's total failure to carry his burden to establish by a preponderance of the evidence that he was a minor participant in the crime in question.


Posted on April 12, 2019 by treelawyer	tagged.
A Yankee landowner – we’ll call him El Ingenioso Hidalgo Don Juan Roberto Hamilton de la Vermancha – was furious at the Holland Town select board when it announced plans to widen the road in front of his house. He complained to the Town, and it scaled back the plans. That wasn’t good enough for our hero: He sued.
The case went to the Supreme Court of Vermont twice, where our landowner proved his point. The Court held that the Holland Town tree warden couldn’t cut down the trees in front of Don Hamilton’s house without holding a hearing first.
A tree warden is a concept unique to New England, a municipal official given powers by statute to make decisions about the cutting and trimming of diseased or hazard trees. The tree warden’s powers are defined by statute.
For Don Hamilton’s considerable efforts in protecting the due process rights of all landowners who might have the tree warden try to cut down healthy trees without a prior hearing, the plaintiff was rewarded with damages … of one dollar.
Of course, Don Juan Roberto Hamilton used two lawyers and spent about $30,000 in pursuit of his glorious quest, and for reasons you can read about in the full case, he didn’t win any attorneys’ fees. But he has his dollar, and the sense of satisfaction that he stepped up and made a difference.
Hamilton v. Town of Holland, 950 A.2d 1183, 2007 VT 133 (Sup.Ct. Vt., 2007). John Robert Hamilton owned property on Lackey Road. In 2001, the Town select board decided to widen a half-mile section of Lackey Road because the section was not wide enough to allow large vehicles – such as a truck, snowplow or school bus – to pass each other safely. The Town engaged the assistance of the State District/Regional Highway Commission in selecting and marking the trees that needed to be removed for the road project.
As originally planned, the road-widening project required removal of many trees, and would have required blasting, digging drainage ditches, and installing culverts. John objected to the tree-cutting proposal. The select board voted to go ahead with the project anyway, but it scaled back the road and reduced the number of trees to be cut.
John sued for a declaratory and injunctive relief, seeking to prevent the Town from cutting down the trees. He argued that the Town must follow the statutory procedures for altering a public highway, including performing a survey of the road, before proceeding with the widening project. The Town argued that it had authority to maintain Lackey Road, and that widening the road is part of the Town’s maintenance responsibility. The Town also argued that the Town’s tree warden was not required to hold a hearing before removing the trees, because they were a hazard to the public. The trial court granted summary judgment for the Town, and John appealed.
The Vermont Supreme Court reversed the decision, holding that the record did not support the court’s grant of summary judgment, because while the trial court had grounded its decision in part on the fact that the trees to be cut were all located within the right-of-way for Lackey Road, and that all of the work would take place within that right-of-way, the location of the right-of-way and the trees to be cut was an issue of fact that was not resolved. The Supreme Court also agreed with the landowner that state law on tree wardens did not grant the tree warden authority to cut public shade trees under the “public hazard” exception unless the trees themselves presented the public safety hazard.
On remand, John amended his complaint, raising a 42 U.S.C. §1983 claim of deprivation of his constitutional right to due process. The due process claim was based on the failure of the tree warden to hold a hearing prior to removing the trees in question. He also claimed trespass and conversion of trees, both of which claims were grounded in state law. The trial court concluded that the road project was “more extensive than routine maintenance,” but that fact alone did not constitute “a major alteration to the road as that term is defined in state law.” Therefore, the court held, the project did not trigger the requirements of 19 V.S.A. §704 for a survey.
The trial court also concluded that the tree warden’s failure to hold a hearing on the proposed cuttings violated 24 V.S.A. §2509, but that John wasn’t injured by the violation. The court awarded nominal damages in the amount of $1.00 for his §1983 claim, and — because of these nominal damages, John was the prevailing party under federal law and entitled to attorney’s fees. The Town appealed, and landowner cross-appealed.
John Hamilton only won a dollar – but what a nice dollar it must have been!
Held: The trial court’s determination that the widening was not a major alteration was upheld. According to the statute, “ ‘[a]ltered’ means a major physical change in the highway such as a change in width from a single lane to two lanes.” If the change constituted an alteration, then the Town was required to comply with 19 V.S.A. §704, which required expensive studies of project before it was undertaken.
The project involved cutting fifteen trees in front of John’s property, a total of thirty to thirty-nine trees along the entire length of the road, and regarding and adding gravel. John argued that the original project was much more extensive, but the Court said that the Town’s response to his original complaint — to scale back the project — was an appropriate response, and the statute had to be applied to what was finally done, not what was originally planned. The Court observed that the project did not widen Lackey Road from one lane to two, but rather all of the work was done within the existing right-of-way. No culverts were installed or blasting done. Ditches were improved and gravel spread, which appeared to be maintenance under state law. Trees were removed, but such removal is specifically contemplated as a matter of maintenance by 19 V.S.A. §904. The Court agreed with the Town that all the work it performed qualified as maintenance under state law. As such, the Town did not need to perform the survey requirements found in §704.
John had spent $2,000 planting new trees, but he admitted the new planting took place in an area different from where the Town proposed to cut trees and was completed before any cutting by the Town. The Court thus found that John’s plantings were not related to the roadwork.
Inasmuch as John did prove a deprivation of due process and a violation of his property rights in the removal of trees located in the Town’s adjacent right-of-way, the superior court was correct to award him nominal damages of $1.00. Because the Town cut down the trees without holding a tree-warden hearing, the Court said, John’s due-process rights were violated regardless of his inability to prove loss or damage.
Posted on April 11, 2019 by treelawyer	tagged.
There was a time that the expression “don’t make a federal case of it” actually had meaning, when only the serious stuff – liking stopping mobsters with tax evasion cases and busting big trusts – became a federal offense. No more.
Now, the feds go after people about 60,000 times a year for any of over 4,000 different criminal offenses, a number that does not even include federal rules that themselves have been criminalized, like the one in today’s case.
Today’s example is a textbook case. Roy P. Hinkson is a 69-year-old Purple Heart recipient who never faced any criminal charges in his life. That changed on November 15, 2014, when the U.S. Forest Service charged Roy with the misdemeanor crime of building a camp on National Forest System land without a permit, in violation of 36 CFR § 261.10(a), a misdemeanor punishable by a $500.00 fine and six months in jail.
It used to be easy. You’d don a mask and a gun, rob a bank, and make off with the loot. You enjoyed the thrill of knowing you had been really, really bad. Roy missed out on that.
A number of commentators – including Alex Kozinski, a judge on the 9th Circuit Court of Appeals (until he was driven off by political correctness run amok) – have complained about the overcriminalization of America. With so many thousands of statutes, and thousands more rules that have been criminalized, just about everyone can commit three felonies a day without breaking a sweat.
Roy found out just how much living a clean life got him, and how little his government appreciated his taking a bullet in Vietnam.
United States v. Hinkson, 2017 U.S. Dist. LEXIS 90409, 2017 WL 2544195 (W.D.Mich. June 13, 2017). Roy Hinkson owned a small hunting cabin, which was built in the 1950s by Al Repp. By mistake, Al had built the camp about 200 feet or so across the line in Hiawatha National Forest rather than on the 40 acres of land that Al owned. Roy’s parents had no ownership interest in the land or the cabin, but they were family friends. In fact, when Roy returned from the Vietnam War, he used the cabin for deer hunting.
In 1976, a fire destroyed the original hunting cabin. A lot of folks, including Roy and at least U.S. Forest Service worker helped clean up the mess. During the clean-up, a few of the USFS people asked Al to rebuild it about 25 feet east of the original site, just to be sure the cabin was on private property. Al was an accommodating fellow, so when he rebuilt the place two years later, he did as the Forest Service people asked.
That’s where things stood for 46 years. The owner passed on, and Roy inherited the cabin. Roy enjoyed occasional use of the camp when he hunted. To get to it, he used an access road, also on USFS land, that was blocked by a locked gate. Roy provided a key to the Forest Service, which kept it on a key rack at the Manistique Ranger District office.
In 2014, a Forest Officer playing with Google Earth on his computer noticed Roy’s cabin appeared to be on National Forest System land. A week later, he investigated the cabin with a GPS tracker, confirming it was on USFS land.
Instead of notifying Roy by leaving a note or sending a letter, the Forest Service – as militarized as any other federal agency – set up a sting-like operation for the opening day of deer hunting season. Despite the utter foolishness of raiding a camp full of men armed with high-power rifles, officers from USFS and the Michigan Department of Natural Resources swarmed the deer hunting blinds on the first day of hunting season and arrested the hunters, fortunately without incident.
The USFS officer leading the raid said the hunters had committed at least 30 different violations. However, he only issued three tickets – Roy was issued two, and his son was issued a third for having a permanent deer blind on federal property. One of Roy’s tickets charged him with “Camp Constructed on NFSL: in violation of 36 CFR § 261.10(a). The next day, Roy removed most of the temporary structures, but the cabin remained.
Held: When Roy appeared in court, the magistrate judge dismissed the charges. The government said all it had to do was prove beyond a reasonable doubt that (1) Roy constructed, placed, or maintained the camp, (2) the camp was located on National Forest System lands, and (3) there was no special-use authorization, contract, or approved operating plan if such authorization was required. Roy on the other hand, argued that the court had to imply a mens rea requirement in the regulation.
The traditional rule is that proof of a guilty mind, the mens rea, is required to convict a person of a crime. The Supreme Court has said that offenses requiring no mens rea generally are disfavored, and has “suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” However, the courts have found statutes or regulations do not require a mens rea element when they are considered public welfare offenses.
Here, the court said, the charges are not a public welfare offense. The offense at issue here differs substantially from “public welfare offenses” previously recognized. “In most previous instances, Congress has rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community’s health or safety.” Nothing puts a reasonable person on notice that having a cabin on national forest land does the same.
What’s more, the court said, even statutes creating public welfare offenses generally require proof that the defendant had knowledge of sufficient facts to alert him to the probability of regulation of his potentially dangerous conduct.


Harris v. Superior Court (2012) 207 Cal.App.4th 1225. Insurance adjusters sued their employers contending that they were not exempt from overtime payment requirements within the meaning of the administrative exemption. They also sought certification as a class. The court of appeal determined that the class certification should have been granted, and that the adjusters' work duties did not satisfy the requirements for the administrative exemption from overtime requirements because their duties were not carried out at the level of policy determination. A few examples of potential administrative work were dwarfed by the day to day tasks on which the adjusters were engaged, and there was insufficient evidence of any management or general business operation responsibility so as to qualify for the administrative exemption.
Wohlgemuth v. Caterpillar, Inc. (2012) 207 Cal.App.4th 1252. This was an action under the Song-Beverly Consumer Warranty Act for a defective engine in a motor home. The manufacturer failed to repair the defects after a reasonable number of attempts and the consumers accepted a settlement payment from the manufacturer but thereafter sought an award of attorney's fees and costs. The court found that attorney's fees and costs were recoverable as a result of the settlement and that an entry of formal judgment was not required. Therefore, when there is a voluntary dismissal with prejudice as part of a compromise agreement, attorney's fees and costs can be awarded to the prevailing party, pursuant to the Song-Beverly Consumer Warranty Act.
Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511. This was an employer's petition to compel arbitration of wrongful termination claims based upon an arbitration provision contained in an employee handbook. The employee had acknowledged receipt and review of the handbook and agreed to abide by its provisions. The court, however, denied the employer's petition to compel arbitration finding that the handbook stated it did not create a contract of employment, and the arbitration clause was not prominently distinguished from other informational material in the handbook. The employee's acknowledgment of the handbook did not constitute an agreement to be bound by the arbitration clause. The court also found the arbitration provision to be illusory because the handbook provided the employer could modify its contents at any time.
Weinstein v. Rocha (2012) 208 Cal.App.4th 92. Purchasers and sellers of real estate had entered into a settlement agreement which provided for payment of $200,000 to the sellers in the event purchasers defaulted on a promissory note. The court, however, found that the settlement agreement was inextricably tied to the purchase money promissory note, and was really a modification of the note. There was no separate consideration for the obligation of the purchasers to pay the sellers $200,000, and the court determined that CCP §580(b) applied to the transaction as a seller financed transaction and limited the seller to the security provided in connection with sellers' promissory note. That security had been exhausted in the foreclosure of a senior lien, and the court held that the sellers had no further remedy against the purchasers.
Arabia v. BAC Home Loans Servicing, LP (2012) 208 Cal.App.4th 462. In this case a loan servicer initiated a judicial foreclosure proceeding and the court of appeal found that a servicer could initiate such a proceeding in its own name with the right to foreclose being an assignable cause of action. Further, the loan servicer's failure to notify and name the junior lienholder in the judicial foreclosure proceeding did not invalidate those proceedings as to the borrower.
Silk v. Feldman (2012) 208 Cal.App.4th 547. This is a SLAPP case. Plaintiff, who was a former director of a homeowners association sued the defendant, a current director of the association, for defamation and libel per se, with the defendant filing the SLAPP motion. Both the trial court and the court of appeal denied the SLAPP motion. The court of appeal concluded that the plaintiff had carried her burden of showing that she would probably prevail in the action and that the allegation was not a privileged communication under Civil Code §47(b).
Fahlen v. Sutter Central Valley Hospitals (2012) 208 Cal.App.4th 557. This is another SLAPP action, and in this case involves a doctor who sued a hospital who claimed that he'd lost his hospital privileges as a form of whistleblower retaliation. The hospital brought the SLAPP motion. The court of appeal denied the motion with respect to causes of action for retaliation under Health and Safety Code §1278.5 and intentional interference with contractual relations as well as declaratory relief. Under the Health and Safety Code §1278.5 claim, the court noted there was no requirement that the plaintiff seek a judicial review of the administrative action taken in peer review proceedings as a precondition to a civil action and that the doctor's failure to pursue writ relief did not therefore bar a claim. However, the court did find that neither judicial economy nor fundamental fairness required an exception to the requirement of exhaustion of remedies as to claims for interference with the right to practice an occupation or wrongful termination of hospital privileges, and those claims were therefore barred.
Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676. In this case an actress did not have her contract renewed for a new season of a television show and contended that she had been wrongfully terminated because she had complained about a battery which was allegedly committed by the show's creator. The court of appeal held that the production company was entitled to a directed verdict because no cause of action could be stated for wrongful termination in violation of public policy in that the actress was not fired, discharged or terminated, but the production company chose not to exercise its option to renew her contract, which was qualitatively different. The court, however, allowed the plaintiff to file an amended complaint alleging a cause of action under Labor Code §6310 for retaliation.


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n a dead body, a corpse. sabadaha, sabadahana n. cremation. sabadaha kara v. to burn a dead body, to cremate. sabadahaka n. one who cremates, a cremator. sabadahanaculli n. a cremator; an incinerator.sabadahashana n. a crematorium. sabapariksa n. post-mortem; autopsy. sabapariksa kara v. to make a post-mortem of, to autopsy. sababyabaccheda kara v. to dis sect a dead body. sabayatra n. a funeral procession sabayana n. a bier. sabasatkara n. obsequies, funeral rites; cremation. sabasatkara kara v. to perform the obse quies of; to cremate. sabasadhana n. a form of mystical rite or religious meditation performed by sitting upon a dead body in a crematorium usu. on a new-moon night; (fig.) a dreadful endeavour to achieve something. sabakara a. corpse like; looking like a corpse. sabagara n. a morgue. sabacchadana-bastra n. shroud; a wind ing-sheet; dead-clothes. sabadhara n. a bier. sabanugamana kara v. to follow a corpse to the funeral place. sabanugami, sabanuyatri n. one who follows a corpse to the fu neral place, a mourner. sabasana n. a pos ture of yogic exercise in which one lies still with the face up. sabasana a. fem. mounted upon a corpse. □ n. Goddess Kali (kali).
n a dead body, a corpse. শবদাহ, শবদাহন n. cremation. শবদাহ করা v. to burn a dead body, to cremate. শবদাহক n. one who cremates, a cremator. শবদাহনচুল্লি n. a cremator; an incinerator.শবদাহস্হান n. a crematorium. শবপরীক্ষা n. post-mortem; autopsy. শবপরীক্ষা করা v. to make a post-mortem of, to autopsy. শবব্যবচ্ছেদ করা v. to dis sect a dead body. শবযাত্রা n. a funeral procession শবযান n. a bier. শবসত্কার n. obsequies, funeral rites; cremation. শবসত্কার করা v. to perform the obse quies of; to cremate. শবসাধনা n. a form of mystical rite or religious meditation performed by sitting upon a dead body in a crematorium usu. on a new-moon night; (fig.) a dreadful endeavour to achieve something. শবাকার a. corpse like; looking like a corpse. শবাগার n. a morgue. শবাচ্ছাদন-বস্ত্র n. shroud; a wind ing-sheet; dead-clothes. শবাধার n. a bier. শবানুগমন করা v. to follow a corpse to the funeral place. শবানুগামী, শবানুযাত্রী n. one who follows a corpse to the fu neral place, a mourner. শবাসন n. a pos ture of yogic exercise in which one lies still with the face up. শবাসনা a. fem. mounted upon a corpse. ☐ n. Goddess Kali (কালী).

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George L. Saunders, Jr., for petitioner.
William G. Clark, Atty. Gen. of Illinois, and John J. O'Toole and Donald J. Veverka, Asst. Attys. Gen., for respondent.
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting. Petitioner was convicted of murder on the testimony of William Triplett, an accomplice in the crime. The prosecutor promised Triplett leniency if he testified against the petitioner. Triplett, however, testified that he had not been promised anything. The prosecutor knew this testimony was false, and the jury heard Triplett's entire testimony under the erroneous impression that he had not received promises of leniency. Later in the trial, and over the prosecutor's objection, petitioner called Triplett's lawyer and the prosecutor as witnesses. Both admitted that the prosecutor promised Triplett leniency if he would testify.
I think this case is governed by the principle of Napue v. People of State of Illinois, 360 U.S. 264 (1959).* It is true that in the present case, the prosecutor was called by the defense and compelled to admit that he offered leniency to the witness if he testified. So, here, the jury ultimately [389 U.S. 906 , 907] knew not only that the witness lied, but also that the prosecutor knew he was lying.
It may be that upon hearing the prosecutor's recantation, the jury could properly discount Triplett's testimony. However, the jury heard him under the impression that he was not receiving benefit for his testimony, and the subsequent recantation by the prosecutor, later in the trial, could not adequately overcome the jury's initial impression of the testimony. Accordingly, in these circumstances, we must conclude that petitioner was prejudiced by the prosecutor's acquiescence in the misrepresentation by his witness.
In any event, it is by no means clear that petitioner must show that the prosecutor's knowing acquiescence in a material falsehood prejudiced him. There is no place in our system of criminal justice for prosecutorial misconduct. See Giles v. State of Maryland, 386 U.S. 66 (1967) (opinion of Brennan, J.); Miller v. Pate, 386 U.S. 1 (1967); Napue v. People v. State of Illinois, supra; Alcorta v. State of Texas, 355 U.S. 28 ( 1957); White v. Ragen, 324 U.S. 760 (1945); Pyle v. State of Kansas, 317 U.S. 213 (1942); and Mooney v. Holohan, 294 U.S. 103 (1935). See also Giles v. State of Maryland, supra, 386 U.S. at 96 ( opinion of Fortas, J.); and Brady v. State of Maryland, 373 U.S. 83 , 83 S. Ct. 1194 (1963). Especially in a capital case, a false denial by the critical State's witness that he was promised leniency in return for his testimony, knowingly acquiesced in by the prosecutor, requires reversal of a state conviction, even though the prosecutor was later compelled to admit that the denial was untrue.
I would grant certiorari and reverse. Napue v. People of State of Illinois, supra.
[ Footnote * ] In response to a question by the prosecutor, a principal state witness in Napue testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration but did nothing to correct the false testimony. Earlier, the witness had been forced by defense counsel to admit that someone, tentatively described as a public defender, 'was going to do what he could' to help the witness. The Court held that the prosecutor's knowing acquiescence in the witness' lie deprived the defendant of a fair trial under the Fourteenth Amendment even though the jury had been apprised that the witness may have been lying about whether he had any interest in testifying.

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