NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 21, 2017* Decided December 21, 2017 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. 16 1725 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ALFRED GEREBIZZA, Defendant Appellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 651 2 James B. Zagel, Judge. O R D E R A jury found Alfred Gerebizza guilty of mail fraud and filing false income tax returns. His co defendant, Daniel Spitzer, pleaded guilty. The district judge sentenced Gerebizza to 240 months’ imprisonment and ordered him to pay $33,988,000 in restitution, jointly and severally with Spitzer, to the hundreds of victims of their * We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C). No. 16 1725 Page 2 fraudulent scheme. Gerebizza appeals, pro se, and we affirm because his arguments are meritless. Spitzer was the principal officer of Kenzie Financial Management Global, a trading company that oversaw 12 investment funds (collectively the “Kenzie Funds”). He and Gerebizza marketed and sold investments in the funds, representing to investors that their capital would be invested primarily in foreign currency. Gerebizza worked as the trading manager, oversaw employees, and interacted with investors. As part of its operations, the company mailed to investors account statements and tax documents that showed consistent profitable returns in their investments. Gerebizza told investors that as of June 30, 2009, the Kenzie Funds were worth about $250 million. In reality the company and most of its investment funds were a sham—a Ponzi scheme. When investors began making redemption requests, the defendants paid for a while but then held the investors at bay with artifices designed to convince them that redemption was forthcoming. By late 2009 the money ran out. Investors reported the scam to the SEC, sparking an extensive investigation that revealed years of fraud. The investigation revealed that the company had raised nearly $105 million from over 400 investors for the 12 funds. Approximately $71 million of its earnings were used to make payments to investors to perpetuate the Ponzi scheme, and only a fraction of the money was invested, producing a net gain of approximately one tenth of one percent. The SEC also discovered that in September 2009—months after the company represented to investors that it had approximately $250 million in total assets—the Kenzie Funds collectively had only $4,101,807 in their domestic bank accounts. In 2010 the SEC brought a civil action against Spitzer, Kenzie Financial Management, and related entities for violations of the Securities Act of 1933, 15 U.S.C. § 77q(a), and the Investment Advisors Act of 1940, 15 U.S.C. §§ 80b 6(1), (2), (4). SEC v. Spitzer, No. 10 CV 3758 (N.D. Ill. Dec. 6, 2010). A default judgment was entered against the defendants. During this time, Gerebizza filed for Chapter 7 bankruptcy and received a discharge order in January 2010. In re Gerebizza, No. 09 26632 PGH (S.D. Fl. Jan. 5, 2010). He also became the subject of an IRS investigation, which revealed that he had reported false information on his tax returns. After the SEC prosecution, a federal grand jury indicted Spitzer for 10 counts of mail fraud, 18 U.S.C. § 1341. A superseding indictment added Gerebizza as a codefendant to the mail fraud counts and also charged him with six counts of tax fraud. No. 16 1725 Page 3 Spitzer pleaded guilty. At sentencing the government relied on the calculation of an SEC accountant who investigated the funds in late 2009 to determine the amount of restitution. Starting with $105 million (the gross receipts), and then subtracting $71 million (the amount paid to investors as part of the Ponzi scheme), the accountant came up with net gains of $33,988,000. The district court accepted the calculation and ordered Spitzer to pay the latter amount in restitution. Gerebizza, who also claimed to be a victim of Spitzer’s fraud, went to trial, but not before he spent the pretrial period filing pro se attacks on the district court’s jurisdiction and skipping most of his court dates. He even declined to attend his jury trial (he was in custody), and he refused to allow his court appointed counsel to appear on his behalf. The jury found him guilty on all counts. After the verdict, Gerebizza, who still refused to work with counsel, filed numerous pro se motions arguing that the district court lacked jurisdiction because, as Gerebizza saw it, his discharge order in bankruptcy court absolved him of all his debts. He also claimed that the mail fraud counts of the superseding indictment failed to state an offense. The district court took no action on these pro se filings. Gerebizza was sentenced to 240 months’ imprisonment, below the advisory guideline range of life imprisonment, and was ordered to pay restitution of $33,988,000. As we noted, the restitution order held Gerebizza jointly and severally liable with Spitzer. Gerebizza raises several arguments on appeal, not all of which are easy to discern, and most of which are supported with inapposite authorities. We can tell at least that he reprises the two arguments he made after trial. First, he contends that the restitution order is illegitimate. He argues that the government and his victims are “estopped” from receiving restitution because they failed to file timely claims in his bankruptcy case. Relatedly, he argues that the district court did not have jurisdiction to impose a restitution order because, he believes, the bankruptcy order in January 2010 discharged him from all debts, including restitution claims in criminal proceedings. Gerebizza’s arguments about the effect of his bankruptcy are frivolous. A discharge order generally “discharges the debtor from all debts that arose before the date of the order for relief.” 11 U.S.C. § 727(b). But an exception exists “for any payment of an order of restitution issued under title 18 of the United States Code.” 11 U.S.C. § 523(a)(13). Indeed, the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii), requires a judgment of restitution—regardless of a bankruptcy discharge— when a defendant is convicted of a property offense committed by fraud, such as mail No. 16 1725 Page 4 fraud under 18 U.S.C. § 1341. See United States v. Wilkozek, 822 F.3d 364, 369 (7th Cir. 2016) (acknowledging that district court is required to order restitution in cases of mail fraud). The district judge was not just allowed, but required, to order restitution. To the extent that Gerebizza disputes the amount of restitution, he forfeited the argument because he failed to object to the calculation in the district court. See United States v. Burns, 843 F.3d 679, 685 (7th Cir. 2016). And we see no plain error. See FED. R. CRIM. P. 52(b). The district judge relied on the SEC’s determination of the Kenzie investors’ actual loss, which accounted for payments made to the victims as part of the Ponzi scheme. See United States v. Allen, 529 F.3d 390, 396 (7th Cir. 2008); see also United States v. Swanson, 483 F.3d 509, 515 (7th Cir. 2007) (“[T]o prove a restitution amount, the government must deduct any value that a defendant’s fraudulent scheme imparted to the victims.”). The judgment contains a list of 458 victims with their corresponding monetary losses, which collectively reach $33,988,000 in lost investments. United States v. Dokich, 614 F.3d 314, 319 (7th Cir. 2010) (affirming restitution amount where government filed detailed lists of investors and the amount each spent on defendant’s securities). Gerebizza has a right to be sentenced on the basis of accurate information, but he has presented no reason to suspect that the calculation was inaccurate. See United States v. Oliver, 873 F.3d 601, 608 (7th Cir. 2017); see also United States v. Rhodes, 330 F.3d 949, 953 (7th Cir. 2003) (affirming restitution award “in the absence of any documented proof of miscalculation in the amount ordered”). Instead, Gerebizza argues that he is not responsible for any restitution because, among other things, he was not involved in the mail fraud scheme. But professing his innocence without directly challenging the verdict does not establish any error in the calculation of the restitution amount. And although Gerebizza, as one player in the Kenzie scheme, may not be the direct source of all of the losses, he is jointly and severally liable, along with his codefendant Spitzer, for the entire amount because he was found guilty of participating in the mail fraud scheme. See United States v. Martin, 195 F.3d 961, 968–69 (7th Cir. 1999) (recognizing joint liability for restitution for mail fraud conviction). Gerebizza next argues that the mail fraud counts (he does not challenge the tax fraud counts) of the superseding indictment are defective because they contain only “legal conclusions” and “naked assertions” that violate the pleading standards established under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). But Gerebizza improperly employs civil pleading standards to scrutinize his criminal indictment. See United States v. Vaughn, 722 F.3d 918, 926 (7th Cir. No. 16 1725 Page 5 2013) (“We do not believe that the concerns guiding the Court’s approach in the civil context apply with equal force in the case of a criminal indictment.”). And his argument that he was entitled to a criminal complaint in addition to an indictment is just a misunderstanding of the rules of criminal procedure. An indictment obviates any need for a criminal complaint, which sets forth potential charges but is not itself a charging document. See FED. R. CRIM. P. 3, 7. Employing the correct standard of review, the superseding indictment here is legally sufficient because it “(1) states all the elements of the crime charged, (2) adequately informs the defendant of the nature of the charges so that he may prepare a defense, and (3) allows the defendant to plead the judgment as a bar to any future prosecutions.” United States v. White, 610 F.3d 956, 958 (7th Cir. 2010); see FED. R. CRIM. P. 7(c)(1). (We generously construe Gerebizza’s filings as a motion to dismiss, which saves him from forfeiture and plain error review.) In a mail fraud case the government must prove that the defendant (1) participated in a scheme to defraud, (2) intended to defraud, and (3) used the United States mail in furtherance of the scheme. See 18 U.S.C. § 1341; United States v. Daniel, 749 F.3d 608, 613 (7th Cir. 2014). Each relevant count in the superseding indictment alleges that Gerebizza intentionally participated in a scheme to defraud investors and describes, in detail, specific instances of his misconduct. In Count One, for example, the indictment describes Gerebizza’s leadership role in operating the Kenzie Funds, which obtained over $105 million from over 400 investors through fraud. It further alleges that he knowingly mailed to investors false information about the investments. Gerebizza may deny the veracity of the allegations, but the charging document sets forth the elements of the crime and adequately informed him of the nature of the charges against him. We have considered Gerebizza’s other arguments, and none merits discussion. AFFIRMED.


556.1 Definitions and use of terms.
556.2 Property held by banking or financial organizations or by business associations.
556.2A Traveler's checks and money orders.
556.2B Checks, drafts, and similar instruments issued or certified by banking and financial organizations.
556.3 Unclaimed funds held by life insurance corporations.
556.4 Deposits and refunds held by utilities.
556.5 Stocks and other intangible interests in business associations.
556.6 Property of business associations and banking or financial organizations held in course of dissolution.
556.7 Property held by fiduciaries.
556.8 Property held by state courts and public officers and agencies -- abandonment.
556.9 Miscellaneous personal property held for another person -- gift certificates.
556.9A Out-of-state property issued within the state.
556.10 Reciprocity for property presumed abandoned or escheated under the laws of another state.
556.11 Report of abandoned property.
556.12 Notice and publication of lists of abandoned property.
556.13 Payment or delivery of abandoned property.
556.14 Relief from liability by payment or delivery.
556.15 Income accruing after payment or delivery.
556.16 Periods of limitation not a bar.
556.17 Sale of abandoned property.
556.19 Claim for abandoned property paid or delivered.
556.21 Judicial action upon determinations.
556.22 Elections by the treasurer of state.
556.24 Proceeding to compel delivery of abandoned property.
556.27 Effect of laws of other states.
556.28 Interstate agreements and cooperation.
556.31 Obtaining information on accounts. Repealed by 84 Acts, ch 1295, §25.
556.32 Proceeding to adjudicate escheat. Repealed by 84 Acts, ch 1295, §25.
556.33 Notice. Repealed by 84 Acts, ch 1295, §25.
556.34 Collection and deposit of funds. Repealed by 84 Acts, ch 1295, §25.
556.35 Indemnification of the United States. Repealed by 84 Acts, ch 1295, §25.
556.36 Short title. Repealed by 84 Acts, ch 1295, §25.


UNIROYAL CORPORATION, a New Jersey Corporation, Defendant-Appellee.
Emmett C. Hart, Albuquerque, N. M. (with Donaldo A. Martinez, Las Vegas, N. M., on brief), for plaintiff-appellant.
Bruce Hall, Albuquerque, N. M. (with Kenneth J. Ferguson, Albuquerque, N. M., on brief), of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., for defendant-appellee.
As tried, this diversity action claimed strict liability for the manufacture and sale of a defective tire which injured plaintiff when it exploded during mounting. Defendant contended the cause of plaintiff's injury was misuse by attempting to mount the 750 X 16 tire on a 16.5-inch rather than 16-inch rim.
Plaintiff Eli Trujillo contends that the defendant Uniroyal Corporation manufactured and sold a defective tire and at the time the said tire was being installed by Eli Trujillo in a customary and usual manner with due caution and circumspection, and in a safe, proper and prudent manner the said tire by reason of a defect blew up resulting in the plaintiff Eli Trujillo being severely, seriously and permanently injured. The plaintiff contends that Uniroyal Corporation is strictly liable under the rule of strict liability for the injuries and damages sustained by Eli Trujillo.
Record, vol. 1, at 83. Upon learning shortly before trial that the plaintiff planned to prove that defendant was liable on a "failure to warn" theory, defendant's counsel contended that the plaintiff was attempting to change the theory of his case. The trial court agreed and rejected Trujillo's tendered evidence1 and jury instructions on the failure to warn issue. The jury found for the defendant tire company.
Trujillo contended that failure to warn was an appropriate issue under strict liability law in New Mexico. According to Trujillo, the tire sold by Uniroyal was in defective condition because there was no warning of the risk of serious personal injury to a tire mounter from: (1) attempting to mount a 16-inch tire on a 16.5-inch rim, and (2) inflating to over 40 pounds per square inch pressure while mounting.
Plaintiff testified that on the date of the accident he was attempting to mount a 750 X 16 tire on what he believed to be a 16-inch rim for a customer of the service station where he worked. He was using a tire mounting machine and was following his usual procedures when he placed the tire on the rim. He was unable to get the bead of the tire to seat against the flange of the rim at some 30 to 32 pounds of pressure per square inch, so he took the tire off and relubricated with tire lubricant. He again placed the tire on the tire mounting machine and this time inflated it to 48 pounds per square inch, but four or five inches of the bead was not seating. As he was inserting additional air, the explosion occurred.
A "definitive pre-trial order reflecting the agreement of the parties, having been entered into after full discovery, must, of course, control the subsequent course of the action. F.R.Civ.P. 16(6)." Case v. Abrams, 352 F.2d 193, 195 (10th Cir. 1965). When issues are defined by the pretrial order, "they ought to be adhered to in the absence of some good and sufficient reason." Id. at 195-96; Monod v. Futura, Inc., 415 F.2d 1170, 1173 (10th Cir. 1969). The trial judge may therefore reject contentions not included in a proper pretrial order. Southern Pacific Transportation Co. v. Nielsen, 448 F.2d 121, 125 (10th Cir. 1971).
The power afforded the trial court to exclude issues or evidence from trial, however, must be derived from a Proper pretrial order. A proper pretrial order, as envisioned by the drafters of Fed.R.Civ.P. 16, is " definitive." See Case v. Abrams, 352 F.2d at 195. It has sharpened and simplified the issues to be tried, See Walker v. West Coast Fast Freight, Inc., 233 F.2d 939, 941 (9th Cir. 1956); Hodgson v. Humphries, 454 F.2d 1279, 1282 (10th Cir. 1972), and it represents "a complete statement of all the contentions of the parties." Blanken v. Bechtel Properties, Inc., 194 F.Supp. 638, 642 (D.D.C.1961), Aff'd, 112 U.S.App.D.C. 97, 299 F.2d 928 (D.C.Cir 1962).2 If there is a properly drawn, detailed pretrial order, a trial court's determination that certain facts or issues must be excluded from trial on the basis of a pretrial order may be reversed only if there is an abuse of discretion. See James v. Newspaper Agency Corp., 591 F.2d 579, 583 (10th Cir. 1979) (pretrial order specifying the witnesses to be called may be used to bar the calling of unlisted witnesses).
Proper pretrial orders are indeed powerful, but even at their best they should be "liberally construed to cover any of the legal or factual theories that might be embraced by their language." Rodrigues v. Ripley Industries, Inc., 507 F.2d 782, 787 (1st Cir. 1974). This court has warned that the pretrial order "is a procedural tool to facilitate the trial of a lawsuit on its merits and not to defeat it on a technicality. We must not allow ourselves to construe the pretrial order in the spirit of a common law pleading." Century Refining Co. v. Hall, 316 F.2d 15, 20 (10th Cir. 1963). The reasons for avoiding overly technical applications of pretrial orders are amplified when, as in this case, the pretrial order is not properly drawn, is not definitive, specific, complete or detailed.
The order in this case may be somewhat more brief than the pleadings, but it is no more precise; consequently, we see no reason to construe it with more precision than pleadings generally, which may be liberally amended, particularly when the court is notified before trial of the intention of a party to pursue a certain issue. See Fed.R.Civ.P. 15. When an adverse party is content with a boilerplate pretrial order, it cannot later demand that the trial court enforce it as though it were a specific and meaningful narrowing of the issues. Indeed, had Uniroyal deemed it necessary to clarify the particular strict liability theory relied upon by Trujillo, it could have used the pretrial process for this intended purpose.
Construing the pretrial order in this case with the generality evidenced by its wording, we see no basis for finding that "the rule of strict liability" as referred to in the order does not encompass all three "defects" developed in the comments to the Restatement (Second) of Torts § 402 A (1965) I. e., manufacturing flaw, design defect, and failure to warn. See Burton v. L. O. Smith Foundry Products, 529 F.2d 108, 110 (7th Cir. 1976). The New Mexico Supreme Court has recognized that failure to give an adequate warning may render a product unreasonably dangerous for strict liability purposes. See Skyhook Corp. v. Jasper, 90 N.M. 143, 560 P.2d 934 (1977). In Fabian v. E. W. Bliss Co., 582 F.2d 1257 (10th Cir. 1978), this court explicitly found that "New Mexico has adopted the Restatement of Torts position as to . . . strict liability." Id. at 1260-61. Under this position, a defect includes "the lack of adequate warnings." Id. at 1261. When there are only three closely related theories underlying a term of art loosely used in a pretrial order, strict construction to avoid surprise or unreasonable ballooning of the trial is not necessary.
The inadequacy of the pretrial order as a limiting device in this case may be illustrated in distinguishing two cases cited by the appellees. In Rodrigues v. Ripley Industries, Inc., 507 F.2d 782 (1st Cir. 1974), it was held that the trial judge could in his discretion determine that an allegation of a functional defect in a piece of machinery was not encompassed in the pretrial order although certain "less than pellucid" descriptions might be construed as covering the defect in question. The opinion indicates, however, that the pretrial order contained lists of alleged structural defects which were specifically assented to as complete. This sort of specificity is conducive to a finding that a particular claim is rendered irrelevant by the pretrial order. In comparison, general terms, loosely used E. g., "defect" and "rule of strict liability" cannot be fairly construed as limiting the underlying theory to be litigated.
Rigby v. Beech Aircraft Co., 548 F.2d 288 (10th Cir. 1977) provides an even better illustration. Both the pretrial order, where "plaintiffs' claims were set forth At length," and plaintiffs' answers to interrogatories calling for a particularized statement referred only to 31-gallon fuel cells. Id. at 292 (emphasis added). In light of the specificity and detail of the pretrial order and the other communications between the parties, the trial court could reasonably conclude that claims relating to 40-gallon cells should not be heard at trial.
Uniroyal contends that, even if the rejected evidence had been admitted at trial and appropriate instructions had been given, the evidence as a whole would not have been sufficient to support a verdict for Trujillo. See Hallmark Industry v. Reynolds Metals Co., 489 F.2d 8, 14 (9th Cir. 1973), Cert. denied, 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974). It contends the warnings Trujillo desired would not have prevented the explosion because (1) Trujillo already knew of the danger in mounting a 16-inch tire on a 16.5-inch rim, and (2) the overinflation of the tire was not a cause of the explosion.
We agree that, under New Mexico law, a warning of a danger known to the user is unnecessary. Skyhook Corp. v. Jasper, 90 N.M. 143, 560 P.2d 934, 938-39 (1977). Indeed, Trujillo admitted he knew that a 16-inch tire should not be mounted on a 16.5-inch rim. However, a belief that it should not be done because it may hurt the tire, or even that it may cause injury is different from knowing that there is a risk of explosion, of serious or even fatal bodily harm. Not merely some risk but the nature and degree of the risk must be appreciated. In contrast to this case, Garrett v. Nissen Corp., 84 N.M. 16, 498 P.2d 1359 (1972), cited by Uniroyal, involved risks which were universally recognized. To the same effect is Skyhook Corp. v. Jasper, 90 N.M. 143, 560 P.2d 934, 938-39 (1977). Trujillo should have been permitted to show a properly instructed jury that he did not appreciate the danger of explosion, which is out of proportion to the risk he may have thought he was undertaking in mounting the tire.
If warned of the very serious consequences of attempting to mount a 16-inch tire on a 16.5-inch rim, Trujillo may have taken precautions he disregarded in this case. While the evidence may be strong that no warning would have overcome Trujillo's mistaken belief as to the size of the tire, he nonetheless was entitled under the failure to warn theory to present the jury with that possibility.
It is even clearer that failing to give instructions and excluding evidence on the desirability of a warning against overinflation was not harmless error. Trujillo did introduce evidence from which it could be inferred that overinflation of the tire was a cause of the explosion. Trujillo's expert, Dr. Alan Milner, testified that explosions occur when the mounter increases the inflation pressure in an attempt to set the tire onto the bead seat; the tire is pressed against the rim and the bead wires break in a consecutive fashion because they are not equally sharing the force of inflation. Record, vol. 3, at 261-69. Jerry Leyden, an expert testifying for Uniroyal, agreed that the wires in a tire may break "(w)hen there's excessive inflation." Id., vol. 4, at 451. Dr. Milner described the high pressure marks which he found on the tire, Id., vol. 3, at 315, and contradicted Trujillo's understanding that he could inflate to a service pressure of 60-65 pounds per square inch while mounting. Id. at 319. Dr. Milner added that under the circumstances he would not have inflated to more than 40 pounds. Id.
We cannot say that a jury could not find for Trujillo if properly instructed. Because of the improper rejection of the failure to warn issue, we must reverse this case.


Some of you out there are lucky enough that you are safely ensconced in the center of a State and you never have to deal with the Interstate Agreement on Detainers. Unfortunately, we around here are not so lucky. With three other States in shouting distance, it's not too surprising when someone gets caught in the other State first and we have to wait our turn. A detainer goes out to whichever prison that State has lodged the person in and then the games begin.
Every single prisoner out there seems to know the magic number 180. They hear from the guy in the cell next door, or a helpful counselor, or Uncle Bob (the family legal expert who's been to prison three times) that if they just notify Virginia that they want their trial then Virginia must come get them and try the case within 180 days or it goes away forever. They may get a lot of details about how everything works garbled, but they always remember that 180 days - and they constantly tell their attorney about it once they are shipped to Virginia.
So, what are the actual rules? Is the 180 day limit a rock solid, irrefutable speedy trial rule??
Of course not. Nothing's ever that simple in the law.
§ 53.1-210 is the statute in Virginia which contains the Agreement on Detainers. In Kentucky it's 440.450. In Tennessee it's 40-31-101. In West Virginia it's §62-14-1. In North Carolina it's § 15A-761. In Maryland it's § 8-405 (and the statutes around it). That should cover most of the ones an attorney from Virginia should need. If you need the version from Wyoming or Alaska you are on your own.
There are two events which actuate this interstate compact. First, Virginia must have lodged a detainer against someone serving a sentence in another State. The warden of the institution where the defendant is being held is required to notify the defendant that a detainer has been lodged against him. Second, the person must "cause" both the prosecutor and the court in the jurisdiction which issued the detainer to get a letter stating he wants to exercise his rights under the compact.
The mistake a lot of prisoners seem to make at this point is to send a letter themselves directly to the prosecutor and/or the trial court. Often, they even fail to send both letters. However, that error is not the primary reason that their effort fails. It usually fails because of continuances once they are in Virgnia.
Under Article IV, the prisoner must write a letter, informing its recipients of her place of imprisonment and requesting a final disposition of the charges involved in the detainer. She then has to give it to the warden, who will then send it to the courts and prosecutors in all the jurisdictions from that particular State which have issued detainers. The warden also has to send a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Once all this arrives at the office of the prosecutor and the court the prisoner has caused it to be delivered.
Causing the letter to be delivered operates as a waiver of the prisoner's extradition rights and as an agreement that the prisoner will agree to serve any time given by the Virginia after she finishes serving her time in the original sentencing State.
Virginia also has the option to ask the original State for temporary custody of the prisoner. If this is done there is a delay of 30 days within which the governor of the original State may deny Virginia temporary custody either on the governor's own motion or the motion of the prisoner herself. Art IV.
After that, the prisoner is shipped to Virginia to face trial in the Commonwealth. There are two timelines within which the prisoner must be tried. The first is the 180 day timeline. This timeline starts from the moment the court and prosecutor receive the letter stating the defendant wants to be brought to Virginia for trial. The second timeline is 120 days.1 This timeline starts from the day the prisoner is brought to Virginia by request of the Commonwealth without the prisoner so requesting. Both of these timelines can be extended by continuances not objected to by the defendant. However, if either timeline is reached the charges must be dismissed with prejudice. Art. V(c). The defendant has an affirmative duty to prove the court and prosecutor received the letters and appropriate certificates from the warden of the prisoner's original State more than 180 days prior. See Eckard v. Commonwealth, 20 Va. App. 619 (1995). If the sending State did not send the appropriate certifications with the letter the 180 limit is not held against Virginia. Id.
There's also an anti-shuttling provision in the compact. If a defendant is delivered to Virginia to face trial all of the charges which led to the detainer must be dealt with before the prisoner is shipped back to the original State. If they are not they are dismissed with prejudice. Art. III(d) and Art. IV(e).
There's one major limitation to this compact. It only applies to indictments, informations, and complaints. For this compact to apply the case must be procedurally ready for trial upon the charging instrument linked to the detainer. If there are procedures which are required other than trial - preliminary hearing, grand jury - then the Interstate Agreement on Detainers does not apply. In other words, if the detainer is based on a warrant neither the timelines nor the anti-shuttling provisions apply. See Locklear v. Commonwealth, 7 Va. App. 659 (1989), and Smith v. Commonwealth (U), DEC10, VaApp No. 2170-09-2. Additionally, this compact does not apply to probation violations. Commonwealth v. Brown, 85 Va. Cir. 159 (2012); See Also Bolden v. Murray, 841 F. Supp. 742 (1975)(applying the same rule to the parole system probation supplanted). And it does not apply to a capias. Chu v. Commonwealth, 61 Va. Cir. 338 (2003)(court refers to capias as "bench warrant").
In other words, if a detainer is issued on a warrant, capias, or probation violation the prisoner can file all the letters he wants, but the compact does not apply and he cannot be shifted from the other State to Virginia under the Agreement. If he is shipped to Virginia anyway it is an extradition outside the compact and none of its protections apply. Instead the Commonwealth would be subject to the regular speedy trial constraints and nothing further. This leads to an interesting question. If the prisoner is in a jail in Virginia, but not under the terms of the compact, what authority allows the prisoner to be shipped back to the originating jurisdiction?
1 The 180 day limit is under Article III and the 120 day limit is under Article IV. Although Article IV read initially to me like the way Virginia is supposed to get the prisoner from the State currently holding him, Article V speaks of bringing someone to Virginia under either III or IV and case law indicates that III is from a prisoner's request while IV is from Virginia's request. See Yiaadey v. Commonwealth, 29 Va. App. 534 (1999).
I must admit, before I became a prosecutor I had never heard of citizens hiring private prosecutors. I don't know if it was happening in any of the jurisdictions wherein I practiced as a defense attorney (I never saw it), but it is something our office bumps into every so often. It seems to be something that citizens want to do with misdemeanors more than felonies and I suspect this is the result of two factors: (1) the fact that citizens can file a misdemeanor complaint to the magistrate themselves and therefore are more vested in any warrant which is issued, and (2) the fact that hiring a private attorney to prosecute any kind of serious felony case would be prohibitively expensive. In any event, until recently I had a bone deep belief that private prosecutors were not allowed for by the Virginia State Code and therefore a citizen could not hire her own. However, it seems I was semi-wrong.
Cantrell v. Commonwealth, 229 Va. 387 (1985): (1) Whether a private prosecutor can appear is at the trial court's discretion. (2) A private prosecutor “is absolutely prohibited from (a) taking any position, (b) making any argument, (c) offering any evidence, or (d) advocating any cause which would be forbidden to a public prosecutor.” (3) A private prosecutor cannot (a) initiate a prosecution or (b) appear before a grand jury. (4) The private prosecutor can take part in the case only with the approval of both (a) the trial judge, and (b) the Commonwealth Attorney. (5) The private prosecutor cannot make the closing argument without the approval of the trial court. (6) The private prosecutor cannot (a) take part in a decision to engage in plea bargaining, (b) deciding the terms of a plea bargain, or (c) a decision (i) to accept a plea of guilty to a lesser crime or (ii) to enter a nolle prosequi. (7) The Commonwealth Attorney must remain in control of the case, although there is no specific limit as to how much work the private prosecutor can do. (8) A private prosecutor representing someone with a civil interest in the same circumstance (a) violates Due Process under the Virginia Constitution and (b) requires no showing of prejudice on the defendant's part for reversal of a conviction.
There are also several cases which address a bit of the issue. The oldest I found is Compton v. Commonwealth, 163 Va. 999 (1934), in which the Virginia Supreme Court overturned a conviction because the Clerk of Court and High Sheriff, as private citizens, hired a private prosecutor and therefore tainted the case. A few years later, in Commonwealth v. Duling, 79 Va. Cir. 764 (1934), a Virginia Circuit Court laid out the rule that the only way a private prosecutor can participate is with the Commonwealth Attorney's agreement. Of course, this is a non-binding opinion, but it is well reasoned, persuasive, and its position was adopted in Cantrell. In more modern times, in Adkins v. Commonwealth, 26 Va. App. 14 (1997), the Court of Appeals overturned a conviction because an attorney who has been previously hired as a private prosecutor cannot subsequently be appointed as the special (governmental) prosecutor when the Commonwealth Attorney develops a conflict – even if the attorney stops taking money from his clients once appointed special prosecutor. Finally, in Riner v. Commonwealth, 268 Va. 296 (2004), the Virginia Supreme Court held that it was within the trial court's discretion as to whether a conflict existed which would disqualify the private prosecutor (the trial court decided that the private prosecutor did not represent a civil interest against the defendant which would automatically disqualify the private prosecutor).
So, basically, if doubly approved by the judge and the public prosecutor, the hired gun prosecutor can take part in the case as long as he is under the control of the Commonwealth Attorney and has no civil case conflict. In particular, I think the civil case conflict rule is important, although it doesn't entirely eliminate the private prosecutor's monetary inducement to seek a conviction. After all, the party paying for the private prosecutor is paying him to be biased. However, the opinions seem to say that this was okay in Jolly Olde England, so it's okay in Virginia until the General Assembly says it ain't.
The only rule above that I don't think makes much sense is the prohibition against the private attorney making the closing argument unless the trial court approves – effectively creating a presumption that the public prosecutor should do the closing argument. Since the private prosecutor is forbidden from arguing anything which a public prosecutor could not, I don't understand why there is an extra protection added to this specific aspect of the trial. It would make more sense if the public prosecutor was required to make to both the opening statement and closing argument, as a demonstration that he was in control of the case. In fact, since the public prosecutor must stay in control of the case it would make much more sense if the presumption was that the public prosecutor is required to make the opening statement and thus demonstrate his control by laying out the evidence that will be presented. I suspect this is just one of those stray rulings that just keeps getting quoted and relied upon over and over again without any thought put into it.
As anyone who has read this blawg for longer than two weeks knows, I am not one of those that thinks the application of the jurors' prejudices to a case is the universal panacea that others believe.
Who Pays the Piper? The Complaining Witness?
§ 19.2-229. When complaining witness required to give security for costs.
For good cause the court may require a complaining witness to give security for the costs and if he fails to do so dismiss the prosecution at his costs.
I tripped across this statute years back and I've always wondered how it was meant to be applied. I looked on Lexis and did not find any annotations and I've never seen a court apply this, so my curiosity was never really satisfied.
Today, while I was researching something else, I finally ran across something that helps explain the statute. Pifer v. Commonwealth, 14 Gratt. 710 (1858) is a Virginia Supreme Court case which has a monograph attached to it explaining who should have to pay what costs. It lays out several cases which put the costs squarely at the feet of the complaining witness if the complaining witness took the charges out herself rather than being required to testify.
A volunteer informer ought to be made a prosecutor, and liable for costs in case of failure; but one who is compelled to be an informer, cannot be considered a prosecutor. Wortham v. Com., 5 Rand. 669; Com. v. Dove, 2 Va. Cas. 29.
And on a trial for a misdemeanor, if the jury find for the defendant, the voluntary informer is liable for the costs, and after verdict the prosecutor cannot show by parol evidence that he was called on by the grand jury, and did not voluntarily give the information. Com. v. Dove, 2 Va. Cas. 29.
[T]he prosecutor's insolvency or inability to pay costs is, ordinarily, good cause for ruling him to find security for such payment; but if, in the opinion of the court, public justice requires that the prosecution should proceed, it may refuse to dismiss the indictment, though the prosecutor be insolvent, and security for costs be not given. Com. v. Hill, 9 Leigh 601.
On an indictment for an assault and battery on the voluntary information of the person assaulted, the informer and prosecutor, being the only witness for the prosecution, is a competent witness, though liable for costs in case defendant is acquitted. Gilliam v. Commonwealth, 4 Leigh 688.
Part 6, supra, is still in the Virginia Code as § 19.2-331 and I think the vast majority of cases in which this applies - and applied - are misdemeanors. There is no reason to think this case law does not apply to the current statute.
Why is this important? Because in Virginia everyone can go and fill out their own complaint and present it to a magistrate, without the participation of a Commonwealth Attorney or police officer. I assume, without having done the research, that some similar process existed back in the 1800's.
When a citizen goes to the magistrate on her own, presenting a complaint and asking for a warrant, that citizen is a "volunteer informer." As well, presenting a complaint also makes her the very epitome of a "complaining witness." Furthermore, in the absence of a prosecuting attorney, § 19.2-265.5 seems to make it clear that the complaining witness fills that slot.
I can't find anything in the modern statutes which relieves a volunteer informer / complaining witness of her duty to pay for the prosecution if she loses her case. If she went voluntarily to the entity (magistrate or grand jury) which issued the warrant or indictment, she is on the hook. All § 19.2-229 does is allow the judge to require the complaining witness to put the money up ahead of time and if that witness either cannot or refuses to do so dismiss the case and bill the complaining witness for the costs.
In my personal opinion, the "good cause shown" part of the statute limits the class of those whom the judge can apply this statute against. Good cause would probably be the fact that someone is a frequent abuser of the system, filing charges often and then dropping them. This could the person who - at least thrice a year - gets in drunk fights, runs to the magistrate to charge everybody the next day, and then wants to drop it when it goes to court a month later. This could be the merchant who swears out bad check warrants, knowing full well that his employee turnover rate is so great there is no way he can prove 75% of them. Most helpfully, it could be used on counter warrants. These happen when someone charged with an offense herself runs to the magistrate and takes out warrants against those who are witnesses against her in order to muddy the waters.
Still, the amount of proactivity required in order to do this would be prohibitive in almost all cases. Someone would have to search through all the charging papers and cull those which fell afoul of the standards set. On top of that, the judge almost never sees the complaining witness until they show up for trial and therefore could only take the allowed statutory action in the seconds before the trial was set to commence. The only possible working framework I can see for this is if the judge issued a writ of mandamus, requiring a particularly troublesome abuser of the system from coming to court unless she had fulfilled the conditions of § 19.2-229.


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Ihnen steht die Möglichkeit zur Verfügung, sich an eine Aufsichtsbehörde zu wenden. Das Beschwerderecht steht Ihnen in dem EU-Mitgliedstaat Ihres Aufenthaltsortes, Ihres Arbeitsplatzes und/oder des Orts des vermeintlichen Verstoßes zu, d.h. Sie können die Aufsichtsbehörde, an die Sie sich wenden, an den oben genannten Orten wählen. Die Aufsichtsbehörde, bei der die Beschwerde eingereicht wurde, unterrichtet Sie dann über den Stand und die Ergebnisse Ihrer Eingabe, einschließlich der Möglichkeit eines gerichtlichen Rechtsbehelfs nach Art. 78 DSGVO.

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(a) "Administering carrier" means the insurer or third-party administrator designated in K.S.A. 40-2120, and amendments thereto.
(b) "Association" means the Kansas health insurance association established in K.S.A. 40-2119, and amendments thereto.
(c) "Board" means the board of directors of the association.
(d) "Church plan" means a plan as defined under section 3(33) of the Employee Retirement Income Security Act of 1974.
(e) "Commissioner" means the commissioner of insurance.
(11) a state children's health insurance program established pursuant to title XXI of the Social Security Act.
(g) "Dependent" means a resident spouse or resident unmarried child under the age of 19 years, a child who is a student under the age of 23 years and who is financially dependent upon the parent, or a child of any age who is disabled and dependent upon the parent.
(h) "Excess loss" means the total dollar amount by which claims expense incurred for any issuer of a medicare supplement policy or certificate delivered or issued for delivery to persons in this state eligible for medicare by reason of disability and who are under age 65 exceeds 65% of the premium earned by such issuer during a calendar year.
(4) who if offered the option of continuation coverage under COBRA or under a similar program, elected such continuation coverage, and has exhausted such continuation coverage.
(2) eligible for the credit for health insurance costs under section 35 of the internal revenue code of 1986.
(k) "FTAA" means federal trade adjustment assistance under the federal trade adjustment assistance reform act of 2002, public law 107-210.
(l) "Governmental plan" means a plan as defined under section 3(32) of the Employee Retirement Income Security Act of 1974 and any plan maintained for its employees by the government of the United States or by any agency or instrumentality of such government.
(m) "Group health plan" means an employee benefit plan as defined by section 3(1) of the Employee Retirement Income Security Act of 1974 to the extent that the plan provides any hospital, surgical or medical expense benefits to employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement or otherwise.
(n) "Health insurance" means any hospital or medical expense policy, health, hospital or medical service corporation contract, and a plan provided by a municipal group-funded pool, or a health maintenance organization contract offered by an employer or any certificate issued under any such policies, contracts or plans. "Health insurance" does not include policies or certificates covering only accident, credit, dental, disability income, long-term care, hospital indemnity, medicare supplement, specified disease, vision care, coverage issued as a supplement to liability insurance, insurance arising out of a workers compensation or similar law, automobile medical-payment insurance, or insurance under which benefits are payable with or without regard to fault and which is statutorily required to be contained in any liability insurance policy or equivalent self-insurance.
(o) "Health maintenance organization" means any organization granted a certificate of authority under the provisions of the health maintenance organization act.
(p) "Insurance arrangement" means any plan, program, contract or any other arrangement under which one or more employers, unions or other organizations provide to their employees or members, either directly or indirectly through a group-funded pool, trust or third-party administrator, health care services or benefits other than through an insurer.
(q) "Insurer" means any insurance company, fraternal benefit society, health maintenance organization and nonprofit hospital and medical service corporation authorized to transact health insurance business in this state.
(r) "Medicaid" means the medical assistance program operated by the state under title XIX of the federal social security act.
(s) "Medicare" means coverage under both parts A and B of title XVIII of the federal social security act, 42 U.S.C. § 1395.
(t) "Medicare supplement policy" means a group or individual policy of accident and sickness insurance or a subscriber contract of hospitals and medical service associations or health maintenance organizations, other than a policy issued pursuant to a contract under section 1876 of the federal social security act (42 U.S.C. §§ 1395 et seq.) or an issued policy under a demonstration project specified in 42 U.S.C. § 1395ss(g)(1), which is advertised, marketed or designed primarily as a supplement to reimbursements under medicare for the hospital, medical or surgical expenses of persons eligible for medicare.
(u) "Member" means all insurers and insurance arrangements participating in the association.
(v) "Plan" means the Kansas uninsurable health insurance plan created pursuant to this act.
(w) "Plan of operation" means the plan to create and operate the Kansas uninsurable health insurance plan, including articles, bylaws and operating rules, adopted by the board pursuant to K.S.A. 40-2119, and amendments thereto.
History: L. 1992, ch. 209, § 2; L. 1997, ch. 190, § 7; L. 1999, ch. 106, § 1; L. 2004, ch. 159, § 8; L. 2010, ch. 108, § 2; July 1.


text:
The Grand Chamber of the European Court of Human Rights considered whether criminal law was retrospectively applied to convict Mr Kononov, in violation of art 7 of the European Convention of Human Rights.
The Grand Chamber had to assess whether, at the time of the offence, international law provided a legal basis to convict Mr Kononov for war crimes and, furthermore, whether he could he have foreseen that his actions would make him guilty of those offences. Unless both tests were satisfied, the conviction would contravene art 7. The Grand Chamber also considered how the extension of statutory limitations should be treated under Article 7.
Any person found guilty of a war crime as defined in the relevant legal conventions…shall be liable to life imprisonment or to imprisonment for between three and fifteen years.
The ‘relevant legal conventions’ are the Hague Convention 1907, the Geneva Convention (IV) 1949 and the Protocol Additional to that Convention 1977. Also relevant was Article 45-1 of the 1961 Code, which specifies that no statutory limitation applies to war crimes.
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
The majority of the Grand Chamber affirmed that the guarantee against retrospective criminal liability is ‘an essential element of the rule of law’ (at 185) and should be applied to protect against arbitrary conviction and punishment. Article 7 embodies the principles that a crime and its penalty can only be defined and prescribed by law, and that the criminal law should not be broadly construed against an accused. Article 7 therefore requires that the law clearly define an offence.
An offence will be clearly defined in law if it can be known from the wording of a provision (and judicial interpretation and legal advice) which acts or omissions attract criminal liability. A law can be written or unwritten, but must be accessible and foreseeable. Gradual clarification of the criminal law through judicial interpretation is not caught by art 7, as long as it is consistent with the essence of the offence and is reasonably foreseeable.
Turning to Mr Kononov’s case, the majority of the Grand Chamber said that Article 68-3 was based on international, not national law. It was therefore irrelevant that war crimes were not domestic offences at the time. After assessing the state of international law on 27 May 1944, the majority held that it provided a sufficiently clear legal basis to convict Mr Kononov for war crimes.
Furthermore, as Mr Kononov was a commanding military officer, it should have been foreseeable that his actions would constitute war crimes for which he could be criminally prosecuted. Interestingly, the majority held this despite noting that the relevant international laws and customs were not published in the USSR or the Latvian SSR at the time.
The majority also held that, as Mr Kononov was convicted under international law, the statutory limitation under the 1926 Criminal Code did not apply. At the time of the offence, international law did not prescribe a time limit for the prosecution of war crimes. Nor have subsequent developments introduced such limits. Therefore the conviction was not statute barred.
Accordingly, as Mr Kononov was convicted of an offence that was a crime under international law at the time it was committed, art 7 was not violated.
In a joint concurring opinion, four judges departed from the reasoning of the majority on the statutory limitation issue. They preferred to see it as a procedural issue relevant to fairness of proceedings and art 6 of the Convention, rather than art 7. They held that the belated conviction of Mr Kononov on the basis of laws existing at the time involved no question of retrospective application of substantive law.
It is questionable which is the better approach. On a literal reading, art 7 is concerned solely with whether an act or omission constituted an offence at the time it was committed. It is not concerned with whether prosecution of the offence was subsequently statute barred. However, as the majority pointed out, art 7 should be construed broadly to protect against arbitrary conviction and punishment. Therefore, it is arguable that the courts should read into it a prohibition on the arbitrary extension of time limits for criminal prosecution.
The dissenting opinion by three judges disagreed with the majority on the factual question as to whether international law at the time provided a sufficiently clear legal basis for Mr Kononov’s conviction. They also held that the prosecution was statute barred under the 1926 Criminal Code. The overriding of this limitation by Article 45-1 of the 1961 Criminal Code involved the retrospective application of the criminal law in contravention of art 7. As discussed above, it is debatable whether art7 should apply to time limits on prosecution.
The guarantee in art 7 is substantively the same as the protection against retrospective criminal laws in s 27 of the Victorian Charter. Specifically, s 27(1) says that a person ‘must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in’. Section 27(4) says that the section does not affect acts or omissions that were criminal offences under international law at the time.
Kononov’s case adds to the jurisprudence on this fundamental protection. In particular, it should guide Australian courts in determining whether an act or offence was a criminal offence under international law at the time it was committed. The proper approach in such cases is firstly to determine whether an offence was clearly defined by international law at the time. It must then be assessed whether the law was sufficiently accessible and foreseeable. This will be satisfied if an accused could reasonably have been expected to know that their actions would make them criminally liable.
The decision is at www.bailii.org/eu/cases/ECHR/2010/667.html.

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text:
At Willie’s trial Parker claimed that charges against him in Texas had been dropped, but this was not true: he was facing a sentence of two to ten years.[iv] Willie’s prosecutors knew or should have known this, but did not correct Parker’s claims.[v] When Parker eventually returned to Texas, and pled guilty to theft, he reaped the benefits of testifying against Willie: his trial judge accepted a plea bargain rewarding him for the testimony.[vi] Willie’s jury was unaware of this as a possible motivation for Parker.
The indications are that the state used Parker in order to obtain false testimony inculpating Willie. It is one of many irregularities in this case. Willie deserves a new trial.
[i] Willie Jerome Manning v. State of Mississippi, Motion for Leave to File Successive Petition for Post-Conviction Relief including DNA Testing and other Forensic Analysis. Supreme Court of Mississippi, filed March 22, 2013. Page 21. Print.
[ii] Willie Jerome Manning v. State of Mississippi, Petition for Post-Conviction Relief, Supreme Court of Mississippi, October 8, 2001. Page 33 (page 41 of pdf). Web. June 29, 2015.
[iii] Willie Jerome Manning v. State of Mississippi, Petition for Post-Conviction Relief, Supreme Court of Mississippi, October 8, 2001. Exhibit 21 (affidavit of Kristen Murray); Exhibit 22 (affidavit of Deena Kalai). Pages 179 – 184 of pdf. Web. June 29, 2015.
[iv] Willie Jerome Manning v. State of Mississippi, Petition for Post-Conviction Relief, Supreme Court of Mississippi, October 8, 2001. Exhibit 17. Pages 164 – 167 of pdf. Web. June 29, 2015.
[v] Willie Jerome Manning v. State of Mississippi, Petition for Post-Conviction Relief, Supreme Court of Mississippi, October 8, 2001. Pages 36 and 37 (pages 44 and 45 of pdf). Web. June 29, 2015.
[vi]Willie Jerome Manning v. State of Mississippi, Motion for Leave to File Successive Petition for Post-Conviction Relief including DNA Testing and other Forensic Analysis. Supreme Court of Mississippi, filed March 22, 2013. Pages 23 – 24. Print.
[vii]Willie Jerome Manning v. State of Mississippi, Petition for Post-Conviction Relief, Supreme Court of Mississippi, October 8, 2001. Page 36 (page 44 of pdf). Web. June 29, 2015.
[viii]Willie Jerome Manning v. State of Mississippi, Petition for Post-Conviction Relief, Supreme Court of Mississippi, October 8, 2001. Exhibit 11 (affidavit of Chester Blanchard). Pages 145 – 146 of pdf. Web. June 29, 2015.
This entry was posted in capital punishment, death penalty, Fly Manning, incentivized witnesses, jailhouse informant, jailhouse snitch, Mississippi, snitch testimony, USA, Willie Jerome Manning, Willie Manning and tagged capital punishment, death penalty, Fly Manning, Frank Parker, incentivized witness testimony, jailhouse informant, jailhouse snitches, July 2017, Mississippi, Oktibbeha County, police misconduct, prosecutorial misconduct, Radley Balko, Sheriff Dolph Bryan, snitch testimony, Starkville, Texas, USA, Willie Jerome Manning, Willie Manning. Bookmark the permalink.

matches: v. v. v. v. v. v. v. v.


*1 EX PARTE TOM T. KUMAGAI, WILLIAM C. LEONE, MICHAEL MAY, HAROLD L.
SHOEMAKER AND ROY A. HOWARD BY HOUDAILLE INDUSTRIES, INC.
Application filed January 8, 1979, Serial No. 001,542, for the Reissue of Patent No. 3,891,910, granted June 24, 1975 based on application Serial No. 181,168 filed September 16, 1971, which is a Continuation of Serial No. 598,525, filed January 12, 1966, which is a Division of Serial No. 827,981, filed March 10, 1959. Machine Tool Motor Control With Position Offset.
This case is on appeal, pursuant to 35 U.S.C. 134, from the final rejection of reissue application Claims 1, 2, 4 and 5. Claim 3, the only other pending claim, has been indicated by the examiner as being allowed. The General Electric Company is the protestor herein.
d. a signal processing system coupled with said input signal system and with said manually adjustable discrete signal device and with said movement control system, and automatically operable during automatic operation of said input signal system to respond to said preprogrammed groups of discrete coded electrical signals to control the operation of the movement control system in effecting the execution of said sequence of preprogrammed machine tool instructions, and responsive to said preprogrammed discrete correction signal to control the operation of the movement control system so as to offset the position of the machine tool member relative to said machine tool axis in accordance with said cutting tool offset information represented by the manually selected group of discrete coded correction signals and taking into account the polarity information represented by said preprogrammed discrete correction signal.
d. a signal processing system coupled with said input signal system and with said manually adjustable digital signal device and with said movement control system, and automatically operable during automatic operation of said input signal system to respond to said preprogrammed groups of digitally coded electrical signals to control the operation of the movement control system in effecting the execution of said sequence of preprogrammed machine tool instructions, and responsive to said preprogrammed digital correction signal to control the operation of the movement control system so as to offset the position of the machine tool member relative to said machine tool axis in accordance with said cutting tool offset information represented by the manually selected group of digitally coded correction signals and taking into account the polarity information represented by said preprogrammed digital correction signal.
Farmer, "Continuous Analogue Control", Aircraft Production, pp. 90 to 99, Mar. 1957.
Claims 1 and 2 stand rejected under 35 U.S.C. 102 as being unpatentable over Tripp '244, taken alone.
Claims 1, 2, 4 and 5 stand rejected under 35 U.S.C. 103 as being unpatentable over Parsons, Lippel and Tripp '244, taken together.
*3 Claims 1, 2, 4 and 5 further stand rejected under 35 U.S.C. 103 as being unpatentable over Parsons, Lippel and Tripp '096, taken together.
Claims 1, 2, 4 and 5 additionally stand rejected under 35 U.S.C. 103 as being unpatentable over Parsons, Lippel and Farmer, taken together.
The instant application purports to seek reissue of U.S. Patent No. 3,891,910 which issued June 24, 1975 upon application Serial No. 181,186. This '186 application was a continuation of application Serial No. 598,525, which itself matured into U.S. Patent No. 3,609,497, issued on September 28, 1971 with a seventeen year term expiration date of September 28, 1988, which date is pertinent here. During the prosecution of application Serial No. 181,186, in order to overcome a rejection based upon double patenting of the obvious type relative to claims of its parent case, U.S. Patent No. 3,609,497, a terminal disclaimer was filed therein (Paper No. 10 filed June 3, 1974). Thus, the term of U.S. Patent No. 3,891,910 also expired on September 28, 1988.
The instant case was filed on January 8, 1979 as a so-called "no defect" reissue application with its reissue declaration directed to the requirements of 37 C.F.R. 1.175 [FN2] as it then existed with the so-called Dann amendments to Subsections (a)(4) and (a)(5) [FN3].
Upon filing, this reissue application contained only Claims 1, 2 and 3, which were verbatim with Claims 1, 2 and 3, respectively, of U.S. Patent No. 3,891,910, for which reissue is purportedly sought.
In the first office action (Paper No. 11 mailed January 26, 1982) the outstanding rejection under 35 U.S.C. 102 was entered and the reissue declaration was faulted for non-compliance with 37 C.F.R. 1.175(a)(4), for reasons not pertinent here.
In an amendment in response thereto (Paper No. 12 filed April 23, 1982) a grammatical problem in Claim 3 was corrected and Claims 4 and 5 added, which are virtually verbatim with Claims 1 and 2, respectively, except that most instances of the word, "discrete", were replaced with either "digital" or "digitally". Compare the "emphasized" portions of Claims 2 and 5, provided above. No new reissue declaration was submitted.
In the second office action (Paper No. 16 mailed September 17, 1982) the outstanding rejections under 35 U.S.C. 103 were added and the reissue declaration was again faulted for non-compliance with 37 C.F.R. 1.175(a)(4).
A new reissue declaration (Paper No. 20 filed December 21, 1982) was submitted which, including its signature, is clearly an electrostatic copy. No reexecution or ratification has been effected.
*4 From December 19, 1983 to June 18, 1984 the various appeal papers were entered. Then, from approximately June 18, 1984 until June 9, 1988 the case apparently was in the hands of the special program examiner for an inquiry under 37 C.F.R. 1.56 which resulted in a negative determination.
On July 21, 1988 the Clerk of the Board mailed the notice setting hearing for October 13, 1988.
On September 28, 1988 the statutory patent term expired for U.S. Patent No. 3,609,497 and the term of U.S. Patent No. 3,891,910, for which the previously mentioned terminal disclaimer was filed, also expired therewith.
On October 13, 1988 the hearing was held.
Applications filed under subsection (a)(4) will not, of course, be passed for issue without amendment, but will be rejected as lacking statutory basis for a reissue if there are no other grounds for rejection, since 35 U.S.C. 251 does not authorize reissue of a patent unless the patent is deemed wholly or partly inoperative or invalid. If a reissue filed under sub-section (a)(4) is subsequently amended thereby converting it into an application under sub-sections (a)(1) to (a)(3), a supplemental reissue oath or declaration must be filed containing the appropriate averments. If such a proper supplemental oath or declaration is not filed, a rejection will be made on the basis that the reissue oath or declaration is insufficient. The supplemental oath or declaration insures compliance with 35 U.S.C. 251 by providing appropriate averments relating to actual errors rather than possible errors.
If a reissue filed under § 1.175(a)(4) is amended, even though in response to a rejection, the reissue is thereby converted into an application under § 1.175(a)(1), and appropriate §§ 1.175(a)(2) and/or (a)(3), and a supplemental reissue oath or declaration must be filed containing the appropriate averments.
The supplemental reissue oath or declaration must comply with paragraphs (a)(1) and (a)(2)/(a)(3), (a)(5), and (a)(6), and (a)(7) if filed after July 1, 1982, of § 1.175, relating to actual errors rather than possible or "what might be deemed to be errors." If the claims are amended and a proper supplemental oath or declaration is not filed, a rejection must be made on the basis that the reissue oath or declaration is insufficient. The supplemental oath or declaration insures compliance with 35 U.S.C. 251 by providing appropriate averments relating to actual errors rather than possible errors.
*5 As this case is now an "ordinary" reissue application under 37 C.F.R. 1.175(a)(3), it follows that we are here exercising appellate jurisdiction as the "statutory" board defined in 35 U.S.C. 134 rather than as the Commissioner's delegates forming an "advisory" panel for a "no-defect" reissue proceeding under 37 C.F.R. 1.175(a)(4). Compare In re Bose, 687 F.2d 432, 215 USPQ 1 (CCPA 1982); In re Dien, 680 F.2d 151, 214 USPQ 10 (CCPA 1982); Bally M'f'g Corp. v. Diamond, 629 F.2d 955, 207 USPQ 177 (4th Cir.1980); PIC Inc. v. Prescon Corp., 485 F.Supp. 1302, 205 USPQ 288 (D.Del.1980). Thus, once the amendments of Paper No. 12 were filed, appellant no longer should have been submitting, or the examiner seeking, a reissue declaration to comply with 37 C.F.R. 1.175(a)(4); but, rather, the focus should have been upon a declaration complying with 37 C.F.R. 1.175(a)(3).
... reissue the patent ... for the unexpired part of the term of the original patent.
There being no unexpired part of the term remaining, reissue can no longer be had and the question of the patentability of the instant claims under 35 U.S.C. 102 or 103, in this application under 37 C.F.R. 1.175(a)(3), is moot. Accordingly, under our authority as the "statutory" board provided for in 35 U.S.C. 134, we hereby dismiss the appeal as to Claims 1, 2, 4 and 5.
*6 ... a terminal disclaimer directed to a particular claim or claims will not be accepted; the disclaimer must be of a terminal portion of the term of the entire patent to be granted.
Considering the fact that appellant's patent Claims 1 and 2 are identical to instant Claims 1 and 2 and are available for whatever purpose for which they may be effective relative to acts occurring during their term, coupled with the fact that appellant is now precluded from obtaining reissue as to claims 4 and 5 due to the terminal disclaimer, it appears that appellant is left in effectively, albeit not precisely, the same position which obtained at the time of filing under the "no defect" rule. That is, for all practical purposes, appellant is still asking for an unappealable, non-binding, "advisory" opinion on the subject matter of Claims 1 and 2 relative to 35 U.S.C. 102 and 103 under conditions in which no reissue would be forthcoming. Accordingly, we consider it appropriate to now step aside from our "statutory" role as members of the appellate board of 35 U.S.C. 134 and instead act as the Commissioner's delegates [FN6] to effect the spirit and intent of the Dann amendment to 37 C.F.R. 1.175(a)(4) by rendering the following "advisory" opinion.
The examiner considers Claims 1 and 2 to be unpatentable under 35 U.S.C. 102 over Tripp '244 which is an entirely analog system after the digital to analog conversion of the input data has been accomplished in stage D@1 of Fig. 4, the contents of which are shown in Figs. 6 and 7. It is the examiner's position that the claim language, particularly the "discrete" signal recitations, are readable on this analog portion of the system. The examiner has not faulted appellant's disclosure under the first paragraph of 35 U.S.C. 112 relative to its support for the "discrete" signal recitations so, presumably, the examiner tacitly admits that these recitations are also readable upon appellant's digital system, despite the passing comment on answer page 20 which might be possibly construed to the contrary.
From this the examiner concludes that an analog signal can be discrete if it has an identity separate from that of every other signal in the system.
*7 Discrete electrical signal, and that is basically a binary signal, is my interpretation of a discrete signal.
If you could not read between two successive steps it would be discrete.
In a digital system they need to be discrete signals.
In the context of this paragraph, discrete does indeed mean digital.
Appellant also relies upon Leone for his general statement, at page 2 of his declaration, that appellant's position as to the meaning of "discrete" vis-a-vis "digital" is "accurate".
The protestor's witness, Kelling, does not address the question of the definition of "discrete".
To the extent that appellant is contending that this testimony of Kumagai, Shoemaker and Leone proves that the term, "discrete", is readable upon digital signals, their evidence is not material here because that point is not in controversy. As pointed out above, it is tacitly admitted by the examiner, whose effective position is that "discrete" is generic to analog and digital signals. Further, any such evidence, that "discrete" is readable upon digital signals, is not probative of the proposition that "discrete" is not readable upon analog signals. It simply does not address the question of other possible usages the term may have. Moreover, to the extent that appellant may be contending that these witnesses are by this testimony intending or implying that "discrete" is not readable upon analog signals, the witnesses are not competent to provide such testimony as to its analog meaning for they have not been qualified as expert witnesses in the analog machine tool control art. See Rule 702, F.R.E. [FN7], which provides that a witness testifying as to scientific knowledge is to be qualified as an expert. Kumagai frankly admits (deposition page 138), "I am not familiar with analog computers". Shoemaker, who holds a bachelor's degree in physics and math, only had one job in an "analog" field sometime between 1950 and 1954 (deposition page 9) but provides no details as to its precise nature, complexity or actual duration. Leone has a bachelor's degree in aeronautical engineering, a master's degree in mechanical engineering and a doctorate in an unspecified engineering field but he only asserts a "general familiarity" with machine tools and controls without regard to the analog field or any time frame (declaration page 1).
Accordingly, we find that appellant has not submitted any competent testimony to prove its contention that analog signals cannot be said to be discrete.
*8 Analog data implies continuity.
The analog signal varies continuously from one end of its range to the other, in contrast to digital signals which must assume discrete values only.
Analog data implies continuity as contrasted to digital data that is concerned with discrete states.
Indiscriminate reliance should not be placed on layman's definitions found in dictionaries; rather, one should look to the pertinent technology. In re Salem, 533 F.2d 676, 193 USPQ 513, 518 (CCPA 1977). It appears from Harrington and the IEEE Dictionary, both authoritative publications, that in the technology the way to distinguish between analog and digital signals is to employ the term, "continuity", for the analog area and the terms, "discrete values" or "discrete states", for the digital area. The lay definition of "discrete" relied upon by the examiner does not even suggest its applicability to technical areas. Considering the present status of the claims, we conclude that the weight of the evidence is with the appellant and there is insufficient basis for reading the "discrete" signal recitations on the analog signals of Tripp '244. Accordingly, we do not find Claims 1 and 2 to be unpatentable under 35 U.S.C. 102 over Tripp '244.
The examiner has approached the situation under § 103 assuming arguendo that the word, "discrete", in Claims 1 and 2 was to be given an interpretation limited to "digital" signals. Additionally, the examiner has approached the § 103 consideration of these claims not on what the examiner terms the "component level" but rather, as the examiner variously puts it, "at systems level" or "when viewed as systems" or with "system building blocks" or "for the purposes claimed." Under these qualifications the examiner has found that Claims 1 and 2 are unpatentable under 35 U.S.C. 103 because the person of ordinary skill would have been led, by the Lippel teaching of the comparability of a analog machine tool control system and a digital machine tool control system, to implement the analog offset compensation teaching of Tripp '244, Tripp '096 or Farmer in digital form in the Parsons digital system.
In our view the examiner has not even established a prima facie case of obviousness, as he must. In re Keller, 642 F.2d 413, 208 USPQ 871, 882 (CCPA 1981). The mistake in the examiner's case is that there is a lack of evidence to prove that, at the relevant time, a person of ordinary skill would have known how to make a digital offset correction circuit and particularly one providing polarity information. It does not follow, merely because of a knowledge of some digital circuits, as in Lippel and Parsons, that all possible digital circuits were thus necessarily within the ordinary skill. Furthermore, the examiner's "system building blocks" approach merely begs the question; an obvious system cannot be built with empty "blocks" devoid of any known circuit means. Compare In re Keller [FN8], supra, which concerned the same issue of "convertability " between analog and digital systems. Unlike here, in Keller, at 208 USPQ 878 right column, the examiner had provided evidence, the Walsh reference, to prove that the particular digital circuit means was already known in the art.
*9 Due to our opinion that a prima facie case of obviousness has not been established, we need not reach the testimony of the respective witnesses of appellant and protestor directed to the question whether such a case of obviousness has been overcome.
The statutory appeal, pursuant to 35 U.S.C. 134, is dismissed as to Claims 1, 2, 4 and 5.
An advisory opinion is provided to the effect that the examiner's holdings that Claims 1 and 2 are unpatentable under 35 U.S.C. 102 and 103 are unsupported by evidence.
FN1. Serota and Henon were added post hearing to form the present expanded panel.
FN2. § 1.175 Reissue oath or declaration.
(1) When the applicant verily believes the original patent to be wholly or partly inoperative or invalid, stating such belief and the reasons why.
(2) When it is claimed that such patent is so inoperative or invalid "by reason of a defective specification or drawing," particularly specifying such defects.
(3) When it is claimed that such patent is inoperative or invalid "by reason of the patentee claiming more or less than he had a right to claim in the patent," distinctly specifying the excess or insufficiency in the claims.
(4) When the applicant is aware of prior art to other information relevant to patentability, not previously considered by the Office, which might cause the examiner to deem the original patent wholly or partly inoperative or invalid, particularly specifying such prior art or other information and requesting that if the examiner so deems, the applicant be permitted to amend the patent and be granted in a reissue patent.
(5) Particularly specifying the errors or what might be deemed to be errors relied upon, and how they arose or occurred.
(6) Stating that said errors, if any, arose "without any deceptive intention" on the part of the applicant.
(b) Corroborating affidavits or declarations of others may be filed and the examiner may, in any case, require additional information or affidavits or declarations concerning the application for reissue and its object.
FN3. The Dann amendments were effective March 1, 1977; Commissioner's Notice of January 18, 1977, 955 O.G. 1054, reprinted 1086 T.M.O.G. 175 (January 5, 1988). They were cancelled July 1, 1982; Commissioner's Notice of April 6, 1982, 1019 O.G. 37, reprinted 1086 T.M.O.G. 212 (January 5, 1988). However, they were to remain in effect for reissue applications filed during their effective dates; Commissioner's Notice of November 16, 1981, 1013 O.G. 18, reprinted 1086 T.M.O.G. 217 (January 5, 1988).
FN4. It is not entirely clear what the examiner envisioned by the categories, "objected to" and "allowed", since he continually treated this case as being pursuant to 37 C.F.R. 1.175(a)(4) and M.P.E.P. 1414.02 provides that such a reissue application cannot be passed to issue.
FN5. 977 O.G. 1 (December 12, 1978), reprinted 1086 T.M.O.G. 183 (January 5, 1988).
FN6. It is not unusual for PTO board members to wear two hats. Before the "Patent Law Amendments Act of 1984," P.L. 98-622, 1050 O.G. 320, the Examiners of Interferences regularly served on the "statutory" Board of Patent Interferences defined by the former 35 U.S.C. 135(a) and also served as the Commissioner's non-statutory delegates to provide "recommendations" pursuant to former 37 C.F.R. 1.259. A similar situation obtains in interferences since the 1984 Act with the Examiners-in-Chief both serving on the "statutory" board provided for in present 35 U.S.C. 135(a) and also acting as non-statutory delegates of the Commissioner to provide "recommendations" under 37 C.F.R. 1.659.
FN8. Keller was also, as here, a case concerning a "no defect" protested reissue application under 37 C.F.R. 1.175(a)(4). However, no question of conversion from an "(a)(4)" to an "(a)(3)" case in accordance with the Commissioner's notice due to the presentation of amendments was there raised.


text: শিক্ষা [ śikṣā ] n learning; study; practice; education; teaching; instruction; a precept; a moral; a lesson; training; (sarcas.) a bitter lesson, punishment. শিক্ষা করা v. to learn; to study; to practise. শিক্ষা দেওয়া v. to teach; to educate; to school; to instruct; to train; (sarcas.) to reprove or punish severely, to teach one ales son. শিক্ষা পাওয়া v. to receive instruction or training or education; (sarcas.) to receive reproof or punishment, to be taught a lesson. উচ্চশিক্ষা n. higher education. উচ্চমাধ্যমিকশিক্ষা higher secondary education. কলেজি শিক্ষা college education. কারিগরি শিক্ষা technical training. ~অধিকর্তা n. the Director of Public In struction, the Director of Education. ~গুরু n. a teacher; a trainer, an instructor; a preceptor, a guru; an initiator. ~গ্রহণ করা v. to receive education or training or instruction. ~দাতা same as শিক্ষক fem. ~দাত্রী । ~দান করা same as শিক্ষা দেওয়া । ~দীক্ষা n. secular and regular education and training; education and culture. ~ধিকার the Education Di rectorate. ~ধীন a. under training, apprenticed; receiving education; studying (under), being taught (by). ~নবিশ n. an apprentice; an understudy; a novice, a probationer. ~নবিশি n. apprenticeship; noviciate, novitiate. ~নবিশি করা v. to serve apprenticeship; to study under. ~পর্ষৎ n. an education board. ~পীঠ n. a seat of learning. ~প্রণালী n. a system or method of education or teaching or training. ~প্রদ a. educative; didactic; instructive. ~প্রাপ্ত a. trained; educated. ~বিভাগ n. the Education De partment. ~বিস্তার n. spread of education. বিস্তার করা v. to spread education. ~ব্রতী n. an educationist; one who has dedicated his life to the cause of education. ~মন্ত্রক n. the Ministry of Educa tion. ~মন্ত্রী n. the Minister of Educa tion. ~মূলক a. educational. ~র্থী a. desirous of learning; seeking education or instruction or training. ☐ n. a learner; a student, a pupil; an apprentice, an understudy, a novice; a trainee. ~লাভ কর same as শিক্ষা পাওয়া । ~সংস্কার n. educational reforms. ~সচিব n. an education secretary. ~সমিতি n. a council of education. ~সম্বন্ধীয় a. educational.

matches: v. v. v. v. v. v.