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This post aims to be an introduction to the basics of confiscation under the Proceeds of Crime Act 2002 in England & Wales. It includes links to more detailed articles dealing with particular elements of confiscation law (shown like this).
A word of warning. An introduction like this can be broadly correct but cannot cover the full detail of the legislation nor can it cover those unusual circumstances which may be exceptions to the general guidance contained here.
Be warned too that words and phrases used in confiscation often have a specific technical meaning which is not the same as their meaning in everyday English conversation. That applies particularly to terms such as ‘benefit’, ‘criminal lifestyle’ and ‘available amount’.
Confiscation proceedings can only be commenced when a defendant has been convicted (either in the Crown Court or Magistrates’ Court) of one or more offences from which he has obtained a benefit. All confiscation proceedings in England & Wales are conducted in the Crown Court in front of a judge but without a jury.
A wide range of offences can form the basis for confiscation proceedings, including offences such as theft, fraud, drugs offences, money laundering and tax evasion. However confiscation orders are not imposed in every case in which a defendant obtains a benefit. In the year to 31 March 2013 approximately 673,000 persons were convicted of an offence (not all of which involved any benefit being obtained) but only 6,392 confiscation orders were imposed.
Confiscation proceedings are initiated by the prosecution. There are no published criteria specifying when confiscation proceedings will be initiated. Where the defendant has obtained a benefit from an offence of which he has been convicted and the prosecution ask for confiscation proceedings to be initiated the court has no discretion to refuse.
The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. The benefit gained is the total value of the property or advantage obtained, not the defendant’s net profit after deduction of expenses.
Whilst the judge can make a confiscation order at the time of sentencing a convicted defendant, in many cases the judge will at that time simply set a timetable for further steps towards confiscation.
This normally involves firstly a requirement for the defendant to supply detailed information about his financial affairs; secondly the prosecution to provide a report identifying the amount of benefit said to have been obtained by the defendant and (usually) identifying his ‘available amount‘ (this is referred to as the s16 statement); thirdly the defendant is required to respond to the prosecution’s report indicating the extent to which he agrees and disagrees with it; and finally there will be a hearing scheduled which will culminate in the making of the confiscation order.
In practice the initial timetable may be revised if difficulties or delays arise so these steps may take months, or even years, to complete.
Evidence which would be inadmissible at trial may be admitted in confiscation proceedings.
Assuming that the defendant has obtained a benefit from an offence of which he has been convicted, the court then has three key decisions to make.
Firstly what benefit has the defendant obtained from the offence or offences of which he has been convicted (including any other offences ‘taken into consideration’ when sentencing)?
Secondly, if the defendant has a ‘criminal lifestyle‘, what benefit is he to be assumed to have obtained in addition to the benefit obtained from the offence or offences of which he has been convicted?
Thirdly what is his ‘available amount‘?
In confiscation proceedings the burden of proof generally rests upon the defendant rather than the prosecutor – particularly in rebutting the statutory assumptions where the defendant has a ‘criminal lifestyle‘ and in satisfying the court that the defendant has an ‘available amount‘ which is less than his ‘benefit’. In each case the court will make its decision on the basis of the ‘balance of probabilities’, see s6(7) PoCA 2002.
The legal position is that a person obtains a benefit from criminal conduct if he obtains ‘property’ (which means an asset of any description) or a pecuniary advantage as a result of or in connection with that criminal conduct, see s76 PoCA 2002.
Sometimes the benefit obtained from the offence is quite obvious. If I steal £10,000 from your bank account I have obviously obtained a benefit of £10,000.
But in many cases the benefit obtained will be less obvious. For example if John is a member of a group of people and is convicted of conspiracy to supply controlled drugs there may be a number of issues arising concerning the extent of John’s involvement in the conspiracy and the valuation of the drugs. If Peter has obtained a mortgage advance dishonestly his benefit will be a proportion of the increase in value of the property since he purchased it.
However the courts will always be looking to the benefit “obtained” – not the benefit “retained”. Where the court is satisfied that a particular benefit has been obtained jointly by more than one person it will treat each person as having obtained the whole of that benefit – but will place a cap on the overall recovery of jointly obtained benefit from the different defendants.
In many cases the defendant will be held to have a ‘criminal lifestyle‘ and this will trigger the statutory assumptions set out in s10 PoCA 2002. The effect may be to increase very substantially the defendant’s total alleged benefit.
These assumptions relate to the defendant’s receipts and payments since the ‘relevant day’ (normally the day six years before the day on which he was charged with the offence) up to the day on which the court makes the confiscation order (but in practice the assumptions are usually applied only up to an earlier date for convenience) and the defendant’s assets held at any time after the date of his conviction (whenever they were first obtained).
A defendant has a ‘criminal lifestyle‘ if the criteria set out in s75 are satisfied, but not otherwise. The criteria relate to the offence or offences of which the defendant has been convicted – they do not relate to his ‘lifestyle’ in the everyday sense of that word.
It is in ‘criminal lifestyle‘ cases in which the services of a forensic accountant may prove particularly valuable in challenging the prosecutor’s s16 statement.
There is an obvious danger of excessive benefit figures and double counting where the ‘criminal lifestyle‘ assumptions are made.
The defendant’s ‘available amount‘ includes all his assets currently held (with a deduction for liabilities secured on those assets) and the current value of any ‘tainted gifts’ he has made, see s9 and s81 PoCA 2002.
The court will not consider, for the purpose of determining the defendant’s ‘available amount‘, whether those assets which he currently holds were obtained legitimately or not – that does not matter at this stage.
In order to reach its decisions the court may hold a hearing at which oral and written evidence from both sides will be presented.
However in many confiscation cases the prosecution and defence will negotiate agreed figures for ‘benefit’ and ‘available amount‘ prior to the scheduled hearing of oral evidence. In that event there will be only a brief hearing before the judge at which he will be invited to approve the agreed figures which then become the basis for the confiscation order.
Before finalising the order the court may need to consider whether the application of the statutory assumptions has created a serious risk of injustice and whether the proposed order would be disproportionate and infringe the defendant’s human rights.
Only very rarely will the amount of the confiscation order be limited to the profit arising from the criminal conduct.
The court will normally order the defendant to pay, within a specified period of time, a sum of money equal to the lower of (a) his total benefit and (b) his available amount.
If the court has no information from which it is able to conclude on the balance of probabilities that the defendant has an ‘available amount‘ which is less than his total ‘benefit’ it will make a confiscation order in the amount of the ‘benefit’.
Where the court accepts that the defendant’s ‘available amount‘ is less than his total ‘benefit’ a brief list of the assets which form the defendant’s ‘available amount‘ should be appended to the confiscation order issued by the court.
The court will typically allow up to six months for payment (from 1 June 2015 this is limited to three months as a result of amendments to confiscation law). The court will also set a default sentence, which is a period of imprisonment the defendant may be required to serve if he does not pay the required sum.
The defendant may subsequently return to court to ask for a six month extension to the time to pay, making a maximum of 12 months in all from the date of the confiscation order (from 1 June 2015 this is limited to a further three months making six months in all from the date of the confiscation order).
Interest is charged on any amount which remains outstanding after the due date for payment, s12.
Either prosecution or defence may appeal against the confiscation order. Appeal is to the Court of Appeal (Criminal Division) and ultimately to the Supreme Court. An appeal ought to be initiated within 28 days of the confiscation order but late appeals may be heard in some circumstances.
Where a confiscation order has been made in the amount of the defendant’s ‘available amount‘ and subsequent realisation of his assets identified in the confiscation order produces a lesser amount than anticipated, the defendant (or the prosecution) can apply to the court under s23 to have the amount of the defendant’s confiscation order reduced to reflect his revised ‘available amount‘ based on the actual amounts realised.
Where evidence comes to light which was not available to the prosecution at the time of the confiscation hearing which indicates that the defendant’s benefit was greater than that found by the court at that hearing the prosecution can, within 6 years of the date of conviction, apply to the court for the benefit figure to be increased under s20 or s21.
Where a confiscation order has been made in the amount of the defendant’s ‘available amount‘ (which was less than his benefit) the prosecution can apply to the court, at any time, for an order under s22 requiring the defendant to pay a further amount where he has a current ‘available amount‘ which would enable him to satisfy a new order – but he may not be required to pay an amount more than the court believes to be just. In that sense a confiscation order may be regarded as a ‘life sentence’.
Where only a small balance remains outstanding on a confiscation order the court may discharge the order under s24 or s25.
Where, following a fresh conviction on a subsequent occasion, a defendant finds himself subject to confiscation proceedings a second time the usual rules may be modified on the second time around.
Other confiscation topics, such as restraint orders, the impact of bankruptcy on confiscation and adjustments for changes in the value of money are covered in further articles in this blog. A full list of confiscation articles is here.
The UK Supreme Court has capped confiscation enforcement in cases where more than one confiscation order covers the same joint benefit. The result is that the State will be unable to recover in excess of 100% of the benefit jointly obtained. It is as if the confiscation order created a joint and several liability of the defendant to ‘repay’ the benefit jointly obtained.
The principle is simple – but the practical implications may on occasion be complex.
In fact the Supreme Court judgment on 18 June 2014 in the cases of R v Ahmad & Ahmed and R v Fields & Others  UKSC 36 dealt with another point too – confirming that under the law of confiscation if two or more persons obtain a benefit jointly they each obtain the whole of it. That point is considered in a separate blog article.
The problem may best be understood by a simple example. Suppose John and Jim get a couple of guns, walk into a bank together and rob it of £10,000. Subsequently they are caught and convicted and are made subject to confiscation orders. In those confiscation orders each of John and Jim will have a benefit of £10,000. Assuming each of them has sufficient assets it seems that in total they will be required to ‘repay’ £20,000 into court. So, it appears, the court will recover twice the amount stolen.
The Supreme Court concluded that that could not be right. Recovering double the amount stolen would be disproportionate. It would not serve the real aims of the Proceeds of Crime Act 2002 and it would be a violation of the defendants’ rights under Article 1 of the First Protocol to the European Convention on Human Rights.
The simple answer is to require each of the confiscation orders against John and Jim to provide that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit.
This is what the Supreme Court held in its judgment at para .
So if the court recovers £5,000 from John it will only recover a further £5,000 from Jim. Of course that means if the court recovers £10,000 from John then it will recover nothing from Jim, but the Supreme Court said that criminals have to accept that risk of unfairness.
Although the principle is clear and the reason for it is straightforward, its application in practice may be more complicated.
Suppose that as well as John and Jim robbing the bank there was a getaway driver, Jack. Let’s suppose Jack was not caught at the time, but a good while later he is caught and convicted. If he is subject to confiscation then presumably he cannot be liable to pay anything if the court has already received £10,000 from John and Jim. So that is a bit of luck for Jack!
Let’s consider some other defendants. Peter and Phil are fraudsters operating a fake business in which they order goods on credit, sell them and disappear – pocketing the money and never paying their suppliers. Peter and Phil had a joint bank account for the fake business which received £50,000 from customers over a period of just under one year.
Peter and Phil are caught, convicted of fraudulent trading contrary to s9 Fraud Act 2006 and subject to confiscation. In the confiscation proceedings each of them has a ‘criminal lifestyle‘ having been convicted of an offence carried on for at least 6 months from which a benefit of at least £5,000 has been obtained, s75 PoCA 2002.
Peter and Phil each have a benefit of £50,000 from the offence of which they have been convicted. But that is not the end of the story.
The separate personal bank accounts which Peter and Phil have are examined and the statutory criminal lifestyle assumptions are applied. There are £70,000 unexplained credits in Peter’s bank account and £25,000 unexplained credits in Phil’s bank account. In consequence the court finds Peter’s total benefit for confiscation purposes to be £120,000 and Phil’s total benefit to be £75,000.
Peter’s available amount is £80,000 and Phil’s is £45,000. So the court makes confiscation orders against Peter for £80,000 and against Phil for £45,000.
If Peter pays the £80,000 and Phil pays nothing, can enforcement proceedings still be taken against Phil? If they can, how much can be enforced against Phil? I do not think the Supreme Court judgment helps me answer these questions because I need to know how much of the £80,000 recovered from Peter relates to the £50,000 benefit jointly obtained and how much of it relates to the other £70,000 assumed benefit of Peter’s.
For example if the £80,000 recovered from Peter includes all the £50,000 jointly obtained benefit of the fraud then the most that can be enforced against Phil is his additional assumed benefit of £25,000.
But, at the other extreme, if the £80,000 recovered from Peter comprises £70,000 re his additional assumed benefit and only £10,000 re the jointly obtained benefit then it would appear that the whole £45,000 can be enforced against Phil (because he still has unrecovered amounts of £40,000 joint benefit and £25,000 additional assumed benefit).
Looking at this another way, if we make a presumption that in each case the first £50,000 of the amounts ordered to be paid by Peter and Phil related specifically to the jointly obtained benefit then the £80,000 paid by Peter has repaid all of the jointly obtained benefit and so (arguably) there can be no enforcement action against Phil. But that would seem to be a nonsensical outcome.
We also need to consider the implications for default sentences.
Going back to John and Jim. They each had a benefit of £10,000 from the bank robbery. Let’s assume the confiscation orders against each of them specified a default sentence of 6 months. If the court recovers £5,000 from John – so it can then only enforce a maximum of £5,000 against Jim – does that result in a corresponding reduction in Jim’s default sentence if he fails to pay?
My guess is that Jim will indeed have his default sentence effectively reduced. But the Supreme Court judgment does not provide the answer.
Presumably Jack, the getaway driver, cannot be made to serve any default sentence if the court has already recovered the £10,000 from John and Jim. And what about Phil the fraudster – what is the position regarding his default sentence?
It seems to me that in solving one problem the Supreme Court have risked creating further problems in relation to the enforcement of confiscation orders.
If it were decided that any ambiguity should be resolved in favour of the defendants then (i) all recoveries from any defendant should be applied against his benefit jointly obtained in priority to his other benefit, and (ii) each defendant’s default sentence ought to be reduced pro-rata when the amount enforceable against him reduces (whether this arises as a result of a recovery from him or as a result of a recovery from another person relating to benefit obtained jointly with him).
The Court of Appeal have recently handed down a judgment in the ‘criminal lifestyle’ confiscation case of R v Harvey  EWCA Crim 1104.
This was a case in which I had been instructed by the defendant’s solicitors in the confiscation proceedings in the Crown Court.
The defendant was a director and majority shareholder in a limited company engaged in hire of plant and equipment (sometimes with drivers, sometimes just the plant itself).
A number of items of plant used by the company were found to be stolen property and the defendant pleaded guilty to 9 counts of ‘handling’ contrary to s22 Theft Act 1968. A further 30 counts were left to lie on the file.
The defendant was subject to confiscation under PoCA 2002 on the basis that he had a ‘criminal lifestyle’ and that the veil of incorporation of the company should be pierced.
The prosecution contention initially in a statement under s16 PoCA 2002 was that the entirety of the gross receipts of the company (inclusive of VAT) since the ‘relevant day’ constituted assumed ‘benefit’ of the defendant for the purposes of confiscation.
By the time of the hearing in the Crown Court the prosecution had changed its position. Whilst it was unable to put a figure on the proportion of company receipts which were derived from criminal conduct, it was significant that the police had inspected 91 items of plant (both large and small) and considered 39 of those items to be stolen property (that is approximately 42.8% on an ‘item count’ basis).
At Crown Court the judge held that 38% of the company’s gross receipts (inclusive of VAT) since the ‘relevant day’ were to be regarded as ‘benefit’. Those gross receipts included not just trading income but also receipts from the sale of plant.
This 38% figure was based on the 42.8% on an ‘item count’ basis, reduced to recognise the greater earning power of the (legitimate) larger and more expensive items of plant. The judge concluded that the defendant had known that all 39 items of plant (not just the 9 items in relation to which he had pleaded guilty to ‘handling’) were stolen property.
The Crown Court judge did not accept that he should be guided by a detailed analysis of a representative sample of company sales invoices over the period since the ‘relevant day’ which appeared to show a much smaller proportion of the company’s income was derived from the stolen plant. He concluded that the defendant was dishonest and his company records did not reflect the entirety of the transactions of the business and so figures based on company records were not persuasive.
The benefit found by the judge was calculated accordingly at approximately £2.2m (based on the value of the 39 stolen items plus 38% of gross receipts of the company since the ‘relevant day’) and he set a default term of 10 years.
VAT charged to customers and accounted for to HMRC should be excluded from the gross receipts figure.
Stolen plant had been recovered by the police and returned (sometimes after many years of use) to its rightful owners, but no reduction had been made in the benefit figure to reflect this.
The 38% figure was too high on the facts and, in particular, had been applied to all receipts including demonstrably legitimate income from the sale of legitimately acquired plant.
The default sentence of 10 years was excessive.
The Court of Appeal reduced the default term to 8 years but otherwise upheld the confiscation order in full, dismissing the appeal on each of the first three grounds.
The Court of Appeal took the opportunity to review and comment upon various confiscation cases – some very recent, some older – in the light of the decision of the Supreme Court in R v Waya. In particular the Court of Appeal opined that the decision in R v Del Basso and Goodwin  EWCA Crim 1119 now “does seem excessively harsh and may arguably be characterised as disproportionate”.
Defendants and accountants may be disappointed to note the Appeal Court’s decision (even after the Waya case) that output VAT charged on the (assumed) illegitimate receipts of a legitimate business is to be regarded as a component of benefit in a ‘criminal lifestyle’ confiscation – even where that output VAT has been properly accounted for and paid over to HMRC. The Court of Appeal considered that there was nothing in Waya which called into question the manner in which the Court of Appeal in Del Basso dealt with VAT and that therefore Del Basso was binding authority on that point.
But the Court of Appeal in any event approved this approach, commenting, “It would be wrong in principle to carry out an accounting exercise in respect of VAT which [the business] collected through the use of stolen property”. The total monies paid by customers, including the VAT charged, constituted property obtained by criminal conduct.
The Court of Appeal’s view must, by implication, be taken to be that they did not consider the confiscation order of £2.2m to be disproportionate in all the circumstances.
After the UKSC decision in R v Waya, what is the position of a defendant subject to ‘criminal lifestyle’ confiscation who has obtained a mortgage advance by fraud but has not been prosecuted for that?
The November 2012 decision of the UK Supreme Court in R v Waya  UKSC 51 dealt with confiscation under the Proceeds of Crime Act 2002 where the defendant had been convicted of mortgage fraud but did not have a ‘criminal lifestyle’ within the meaning of s75 PoCA 2002. But the implications of the judgment go far wider.
This article considers the relatively common situation in which a convicted defendant is subject to confiscation on the basis that he does have a ‘criminal lifestyle’ and it appears that he may have previously obtained a mortgage advance by fraud although he has not been prosecuted for that.
Let’s take the example of William who is a self-employed engineer. Five years ago he purchased Rose Cottage, a four bedroomed house in an idyllic country location, for £775,000. He put up a 40% deposit from his own legitimate money, that’s £310,000. The remaining 60%, or £465,000, he obtained fraudulently by giving false details of his income to the mortgage lender. Two years ago William got involved in dealing in controlled drugs. He was arrested, charged and convicted of possession of a controlled drug with intent to supply. He is now subject to confiscation proceedings under PoCA 2002 on the basis that he has a ‘criminal lifestyle’.
William still owns Rose Cottage. The outstanding mortgage is still £465,000 – it is an ‘interest only’ mortgage and William has kept up the payments to the lender. The open market value of Rose Cottage is now £1,200,000.
We need to consider the impact of the statutory ‘criminal lifestyle’ assumptions on the calculation of William’s ‘benefit’ (if any) in connection with his ownership of Rose Cottage and the mortgage fraud.
Prior to the UKSC decision in Waya the likelihood is that the court would have treated the £465,000 mortgage advance as “property transferred to the defendant” and therefore an assumed benefit of £465,000 would have arisen from it in William’s confiscation.
However in the light of paragraph  of the Supreme Court judgment it now appears to be the case that the £465,000 was not “property transferred to the defendant” and so no benefit can arise under the first assumption in relation to the mortgage fraud.
Similarly any suggestion that Rose Cottage itself should be regarded as property transferred to the defendant “as a result of his general criminal conduct” would run counter to paragraphs  and  of the Supreme Court judgment in Waya.
But that is not the end of the story, as we need to consider the other assumptions of s10.
It seems irrefutable that the mortgage lender has an interest in Rose Cottage and so, to that extent, the fourth assumption is negated because it has been “shown to be incorrect”. That will be important when we consider the implications of the second assumption.
William does hold Rose Cottage, subject to the mortgage lender’s interest in it, after the date of his conviction. Rose Cottage is now worth £1,200,000 and the outstanding mortgage is £465,000 – so William’s interest in the property is now £735,000 (his ‘equity’ in the property). That includes an increase in value, or “appreciation”, of £425,000 (the difference between the £775,000 purchase price and the current value of £1,200,000) .
Following the logic applied by (the majority judgment of) the Supreme Court in Waya in paragraphs  and  of the judgment we can say that, because 40% of the original purchase price was funded by William’s own legitimate funds and 60% was funded by the fraudulently obtained mortgage, only 60% of the “appreciation” is a ‘benefit’ for confiscation purposes.
In relation to the other 40% of the “appreciation” and William’s initial deposit (which was legitimate monies) the second assumption is “shown to be incorrect” on the facts.
So the benefit arising, under the statutory assumptions, in relation to William’s ownership of Rose Cottage and the mortgage fraud is 60% of the “appreciation” of £425,000, which amounts to £255,000.
Note that this conclusion does not depend upon whether the mortgage advance was obtained after the ‘relevant day’ (defined in s10(8) and normally six years prior to the date on which the defendant was charged with the offence of which he has been convicted).
The final issue is whether such an outcome would be disproportionate and hence an infringement of William’s human rights under Article 1 of the First Protocol to the European Convention on Human Rights (‘A1P1’). Since the outcome under the statutory assumptions is the same as that which would have arisen had William been charged with, and convicted of, the mortgage fraud and in the case of Waya the Supreme Court held that this outcome was not disproportionate, then it seems clear that William’s rights under A1P1 have not been infringed.
For similar reasons it appears that this calculation of assumed benefit does not involve a “serious risk of injustice” which would be relevant to s10(6)(b).
Happily this analysis leads to an outcome which is entirely consistent with the outcome in the rather different circumstances of Mr Waya’s case as I have described in an earlier blog article.
As an aside, I am bound to say that any conclusion that a defendant who had NOT been convicted of mortgage fraud should suffer a more severe outcome in confiscation, as a result of the operation of the statutory assumptions, in relation to that mortgage fraud than another defendant who had been convicted of mortgage fraud would be open to attack as involving an unacceptable “serious risk of injustice”.
But what if the situation had been slightly different? Suppose William had purchased Rose Cottage with his domestic partner Mary – and Mary had not been convicted of any offence and was not subject to confiscation?
Would Mary’s interest in the equity in Rose Cottage have the effect of halving William’s benefit under the statutory assumptions? Would it make a difference whether William and Mary owned Rose Cottage as joint tenants or tenants in common?
These issues did not arise in the Waya case. We may however see these issues aired in future confiscation hearings.
The UK Supreme Court judgment in the confiscation case of R v Waya  UKSC 51 has added another layer of complexity to confiscation cases in England & Wales.
The judgment addressed two issues: (i) Where a mortgage is fraudulently obtained how is the benefit of that fraud to be calculated for confiscation purposes? (ii) Is the confiscation scheme under Part 2 of the Proceeds of Crime Act 2002 in England and Wales compliant with Article 1 of the First Protocol to the European Convention on Human Rights (referred to as ‘A1P1’)?
The Supreme Court’s answer to the mortgage fraud question is rather different from that previously adopted in the Crown Court and Court of Appeal.
It boils down to this. No benefit arises from the actual obtaining of the mortgage itself, but a benefit can arise when the property purchased with that mortgage increases in value.
An example illustrates how this is to be worked out. Suppose a defendant, call him Mark, buys a property for £775,000. He puts up a 40% deposit from his own (legitimate) money, that’s £310,000. The remaining 60%, or £465,000, he obtains fraudulently by giving false details of his income to the lender. Mark is convicted of mortgage fraud and is then subject to confiscation proceedings. At the time of the confiscation hearing the property has increased in value to £1,200,000 and there is still the original £465,000 outstanding on the mortgage.
The increase in the value of the property has been £425,000 (the difference between £775,000 and £1,200,000) and the fraudulently obtained mortgage was 60% of the purchase price. So the benefit is 60% of the increase in value – which works out to be £255,000.
That is not the way that benefit in mortgage fraud cases was calculated before this judgment was published on 14 November 2012, but from now on this is the way that the calculation should be done.
But note that Waya was a case in which the defendant’s own money was legitimate and only the mortgage money was derived from crime. A different approach is needed in cases where the defendant’s own money is derived from (other) crime and the mortgage advance is legitimately obtained. A different approach would also have been needed if the property being purchased had been fraudulently over-valued in connection with the obtaining of the mortgage resulting in the mortgage advance being greater than the true market value of the property being purchased.
The calculations get more complicated where some of the original mortgage advance has been repaid before the date of the confiscation, or where the property has been subject to a re-mortgage and further borrowing. It is not possible to deal with those complexities in a short article such as this.
The Supreme Court also addressed the issue of compliance with A1P1, Article 1 of the First Protocol to the European Convention on Human Rights.
Essentially the Supreme Court recognised that there are cases in which simply calculating the ‘recoverable amount’ (the amount that the defendant is ordered to pay by the confiscation order) by strictly following the wording of Part 2 PoCA 2002 produces a result which is disproportionate and would therefore infringe the defendant’s human rights. That cannot be permitted.
The judgment makes it clear that in order to prevent that happening Crown Court judges must reduce the amount of a disproportionate confiscation order below the figure calculated in accordance with PoCA 2002.
However the Supreme Court said that a confiscation order should not be regarded as disproportionate simply because it would “involve the possibility of removing from the defendant by way of confiscation order a sum larger than may in fact represent his net proceeds of crime”.
require a defendant to pay the whole of a sum which he has obtained by crime without enabling him to set off expenses of the crime.
In relation to ‘criminal lifestyle’ cases the Supreme Court drew particular attention to s10(6)(b) PoCA 2002 which requires that “the court must not make a required assumption in relation to particular property or expenditure if . . . there would be a serious risk of injustice if the assumption were made”. As a result of applying s10(6)(b) the Supreme Court suggested that the courts ought not normally to be at risk of making disproportionate confiscation orders in ‘criminal lifestyle’ cases. I have previously considered the operation of s10(6)(b) in ‘criminal lifestyle’ confiscation cases in my blog article Confiscation: a serious risk of injustice.
The new approach does not amount to the re-creation of a general discretion for judges in confiscation cases, nor does it introduce a new regime in which the confiscation order must be governed by the “real benefit” obtained by the defendant.
By way of example, the Supreme Court indicated that in, say, a theft case in which goods had been stolen but recovered intact and returned to their owners it might be disproportionate for a confiscation order to be made based on the value of those stolen goods, although a strict reading of PoCA 2002 would require that.
There is, in my view at least, a very real danger that this judgment will create more complexities and difficulties for the Crown Courts and Court of Appeal whilst doing very little to introduce more justice and common sense into the confiscation regime.
The judgment may breathe new life into s10(6)(b) in ‘criminal lifestyle’ cases and we may see judges adopting more frequently a broad brush reduction in the defendant’s benefit figure as exemplified by the case of R v Deprince  EWCA Crim 524 (a case not referred to in the Supreme Court judgment).
I would suggest that if the confiscation case of Del Basso & Goodwin v R  EWCA Crim 1119 were to be heard today the confiscation order against Mr Del Basso might be scaled back to a level related to the profit of the business (which was essentially legitimate) rather than its turnover, in the light of the comments at paragraph  of the judgment in Waya.
Of course the Court of Appeal now has power to send a confiscation case back to the Crown Court for rehearing under s140 Coroners and Justice Act 2009, particularly where it is appropriate to make further findings of fact.
In new cases the judgment may provide encouragement for defendants, and their legal representatives, to routinely argue in the Crown Court that a proposed confiscation order would be disproportionate and infringe the defendant’s A1P1 rights. There would appear to be nothing to be lost by making that submission even where it may have little prospect of success.
On the other hand the judgment seems to offer nothing to encourage prosecutors – their lives are undoubtedly going to be made harder by it.
In confiscation proceedings the court must not make a criminal lifestyle assumption in relation to particular property or expenditure if that creates a serious risk of injustice, see s10(6)(b) PoCA 2002. Similar provisions apply to earlier confiscation legislation in England and Wales employing statutory assumptions for the purpose of determining a defendant’s benefit. But what does this mean in practice?
The legislation expressly refers to a “serious risk of injustice”. Does that mean the risk of a serious injustice?
In the Court of Appeal judgment in the case of R v Benjafield  EWCA Crim 86 it was held, at paragraph [41.4]: “In particular, while a defendant is required to show that an assumption in his case in incorrect, if he fails to do this, the court must still not apply an assumption where there would be a “serious risk of injustice in the defendant’s case if the assumption were to be made”. As to the weight that has to be given to the word “serious”, any real as opposed to a fanciful risk of injustice can be appropriately described as serious. The court, at the end of the confiscation process, has therefore a responsibility not to make a confiscation which could create injustice”.
So it appears almost as if the word “serious” could be omitted.
But in my experience convicted defendants who have been made subject to confiscation orders under the ‘criminal lifestyle’ provisions often leave court feeling that they have suffered a serious injustice.
Indeed more recently the Court of Appeal in the case of Shabir v R  EWCA Crim 1809 said at paragraph : “If it is a case in which the criminal lifestyle provisions of the Act can legitimately be applied, and with them the several section 10 assumptions as to the source of assets, it may well be perfectly proper for a confiscation order to be massively greater than the gain from the offences of which the defendant has been convicted”.
Many defendants might regard that as a description of precisely the serious injustice which they have suffered.
A general discretion to avoid unfairness?
One might think that s10(6)(b) Proceeds of Crime Act 2002 offers Crown Court judges a general discretion to avoid excessive harshness or unfairness towards defendants in confiscation proceedings, but courts have held that it does not operate in that way.
It appears that a judge is permitted to ‘stand back and determine whether there is or might be a risk of serious or real injustice’ (as it was put in Lunnon v R  EWCA Crim 1125 at paragraph ) but in this context the courts have had in mind possibilities such as “a defendant suffering from some mental infirmity” (alluded to in R v Briggs-Price  UKHL 19 at paragraph ) or the position of an unrepresented defendant putting his case in person (see WB v R  EWCA Crim 3062 at paragraph ). The position in relation to that rather restricted application of s10(6)(b) may have been changed somewhat by the Supreme Court decision in R v Waya  UKSC 51, which is discussed below.
But the courts have expressly said that the fact that a confiscation order will cause hardship to the defendant is not to be regarded as a factor giving rise to a serious risk of injustice. Consideration of a possible serious risk of injustice is not a discretionary exercise by the judge to determine whether or not it is fair to make an order against a particular defendant, see R v Jones  EWCA Crim 2061 at paragraph .
The courts have considered the serious risk of injustice in the context, as the statute suggests, of whether or not the assumption should be made in relation to particular items of property or expenditure.
But, once the courts have concluded there would be no serious risk of injustice in making the assumption, the courts have not considered that the placing of the burden of rebutting the assumption (on the balance of probabilities) on the defendant – rather than placing the burden on the prosecution to provide evidence of further criminal conduct – gives rise to a serious risk of injustice. In effect the Crown Courts are not permitted to consider whether that may, of itself, give rise to a serious risk of injustice because the placing of that burden on the defendant is an integral feature of the legislation and because courts (both at national and European level) have consistently held that placing that burden on the defendant is proper and does not breach the defendant’s human rights.
So, for example, a defendant who has not kept records of his financial affairs, and in consequence cannot produce the clear and cogent evidence which the court requires in order to rebut the statutory assumptions, will not be saved from a substantial confiscation order on the basis that there would be a serious risk of injustice if the assumptions were applied in his case, see R v Jones  EWCA Crim 933 at paragraph .
However where there is sufficient evidence to rebut the statutory assumption in relation to property or expenditure, but the extent to which the assumption is rebutted by that evidence is uncertain, the court may make a broad brush reduction in the amount of the assumed benefit to eliminate any perceived risk of injustice – as was done in the case of R v Deprince  EWCA Crim 524 at paragraph .
More straightforwardly, the provision also allows the court to avoid the injustice which could otherwise occur where the same property falls to be considered as assumed benefit more than once as a consequence of the operation of the statutory assumptions. So, for example, where an item of property is both transferred to the defendant after the relevant day and held by him after the date of his conviction that property should not be counted twice for benefit purposes.
But even in relation to alleged double counting, sometimes called double accounting, it is necessary for there to be adequate evidence before the court to rebut the statutory assumptions or show that there is a serious risk of injustice. In the case of Priestley v R  EWCA Crim 2237 the defendant had been convicted of offences concerning the sale of counterfeit perfume, champagne and clothing. In the confiscation hearing Mr Priestley had not given any evidence himself nor called any witnesses. The judge found his benefit by calculating the estimated proceeds from the sale of the perfume (based on the number of perfume bottles that had apparently been used and an estimated average sale price per bottle), and adding to that figure the amount of monies deposited in the defendant’s bank account and the estimated expenditure on production of the perfume since the relevant day, together with the amount of cash in the defendant’s possession on the day of his arrest. On appeal it was submitted that this involved double accounting since the bank deposits, the expenditure and the cash in hand would all have represented monies generated from the sale proceeds of the perfume (which had already been taken into account). The Court of Appeal dismissed the appeal holding that the judge had “no secure evidential basis” to conclude that there was a serious risk of injustice in applying the statutory assumptions in full.
The Supreme Court in the case of R v Waya  UKSC 51 has made it clear that the courts should not make confiscation orders which are disproportionate to the objective of the confiscation legislation. Where an order calculated in accordance with the provisions of PoCA 2002 would be disproportionate the judge should reduce the amount of the order so that it will not infringe the defendant’s human rights, in particular with respect to Article 1 of the First Protocol of the European Convention on Human Rights (A1P1).
But the Supreme Court indicated that ordinarily the operation of s10(6)(b) should avoid the making of an order in a ‘criminal lifestyle’ case which would infringe the defendant’s A1P1 rights. It remains to be seen whether these comments in Waya will breathe new life into the s10(6)(b) provision, although clearly the Supreme Court did not intend by its judgment in Waya to create a wide-ranging general discretion for Crown Court judges in ‘criminal lifestyle’ confiscation cases.
At the end of the day criminal lifestyle confiscation remains a potentially Draconian deterrent penalty employed by the courts as a part of the sentencing process.
Note: This article has been updated to reflect the decision of the Supreme Court in R v Waya.
In confiscation proceedings counts left to lie on the file may have unwelcome implications which had not been foreseen by the defendant and his legal team at an earlier stage. What are these implications?
When a defendant has been charged with more than one offence he may wish to offer a guilty plea to some of the counts he faces if the remaining counts against him will not be pursued. Those counts which are not pursued might be dealt with in one of two ways. The prosecution could state in court that they propose to offer no evidence on those counts. The judge will then formally record ‘not guilty’ verdicts in relation to them.
Alternatively the prosecution could invite the judge to agree that the counts are to be ‘left to lie on the file’ without any verdict being entered. That means that the prosecution may only revive and proceed on those counts in wholly exceptional circumstances.
So it would appear that, in practical terms, the outcome is the same – those allegations have been disposed of and the defendant will no longer face prosecution for them. But in any subsequent confiscation proceedings there is, I venture to suggest, a very important difference between these two methods of disposal.
Case law indicates that where a defendant has been formally acquitted of a count it is not open to the prosecution to suggest, in confiscation proceedings based on his conviction on one or more other counts on the same indictment, that the defendant was in fact guilty of that offence. To do so would imply that the court has ‘got it wrong’ so far as the acquittal is concerned.
In R (on the application of Adams) v Secretary of State for Justice  UKSC 18 the Supreme Court held at paragraph  “the principle that is applied is that it is not open to the state to undermine the effect of the acquittal”. Similarly the Supreme Court held in Gale v Serious Organised Crime Agency  UKSC 49 at paragraph  “in all proceedings following an acquittal the court should be astute to ensure that nothing that it says or decides is calculated to cast the least doubt upon the correctness of the acquittal”.
In this respect the UK Supreme Court judgments are consistent with the decision of the European Court of Human Rights in the case of Geerings v The Netherlands  ECHR 191. In the Geerings case a confiscation order made against Mr Geerings following his conviction of certain offences was assessed, in part, on the basis that he was in fact also guilty of other offences of which he had been acquitted in the same proceedings. The European Court held that this had violated his Article 6(2) right to the presumption of innocence.
In contrast where counts have been left to ‘lie on the file’ I suggest that it is open to the prosecutor, in confiscation proceedings, to suggest that the defendant is in fact guilty of those offences. Indeed in a ‘criminal lifestyle‘ confiscation the defendant may find that the burden will rest upon him to satisfy the court, on the balance of probabilities, that he is not guilty of those offences.
An example from a recent case in which I was involved may underline the point. The defendant, let’s call him Simon, ran a plant hire business. His premises were raided by the police who examined 91 items of plant which he hired out. They found 39 of these items to have been stolen property. Simon was charged with 39 counts of ‘handling’ under s22 Theft Act 1968 on the basis that he knew or believed these items to be stolen. Simon denied that he knew or believed the items to be stolen but, shortly before the matter came for trial, he pleaded guilty to 9 of the 39 counts and all parties agreed to the remaining 30 counts being left to ‘lie on the file’.
Simon was subsequently subject to confiscation on the basis that he had a ‘criminal lifestyle‘ having been convicted of more than 3 offences and having obtained from them a benefit of at least £5,000 (which was not disputed). In the confiscation proceedings the prosecution asserted that the income generated from the hiring out of all 39 items was benefit of Simon’s criminal conduct. The defence contended that the benefit should be assessed only by reference to the income from the hire of the 9 items in relation to which Simon had been convicted.
The judge heard oral evidence from Simon regarding his state of knowledge concerning the 30 items and also heard oral evidence from other witnesses. The judge entirely disbelieved and rejected Simon’s evidence and based the confiscation order on the income generated from the hire of all 39 stolen items.
In approaching the matter in the way he did, the judge acted consistently with the recent Court of Appeal judgment in Bagnall v R  EWCA Crim 677. It was open to the judge to apply the statutory assumptions which, in his judgment, Simon had failed to rebut in relation to income generated from the hire of all 39 stolen items. This did not, in law, amount to a finding that Simon was guilty of offences of which he had not been convicted (although it had the same effect in terms of the confiscation order).
No doubt the outcome of the confiscation would have been significantly different if Simon had been formally acquitted of the 30 counts to which he did not plead guilty. Alternatively, had Simon insisted, insofar as he was able, that he face trial before a jury on the 30 counts (and, in my view at least, a defendant has a right to a fair trial on all the counts with which he has been charged) it is possible that he would have been acquitted on some or all of those counts. In a jury trial the burden would have been upon the prosecution to prove, to the criminal standard, that Simon knew or believed that each of the items of plant was stolen. As things turned out, acquittals on any of the counts would have led to a better outcome for Simon in the confiscation proceedings.
So, for a defendant and his legal team, agreeing to counts being left to ‘lie on the file’ may be a less attractive option than it appears.

matches: UKSC EWCA EWCA UKSC UKSC UKSC UKSC EWCA EWCA EWCA EWCA EWCA UKHL EWCA UKSC EWCA EWCA EWCA EWCA UKSC UKSC UKSC EWCA


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Gardner, John. Gudgekin the Thistle Girl and Other Tales. New York. Alfred A. Knopf. 1976. Octavo. Hard cover. Illustrated by Michael Sporn. Fine copy in fine dust jacket (in mylar).
Gardner, John. Gudgekin the Thistle Girl and Other Tales. Photo available. New York. Alfred A. Knopf. 1976. 59 pps. Octavo. Hard cover. Illustrated by Michael Sporn. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Gardner, Paul Vickers. Glass. Compiled for the Cooper-Hewitt Museum. Washington. Smithsonian. 1979. 4to. Hardcover. First edition. Illustrated in color and black & white. Fine copy in near fine dust jacket (in mylar).
Gardner, Theodore Roosevelt. Something Nice to See. Santa Barbara. Allen A. Knoll. 1994. Octavo. Hardcover. First edition. Illustrated in color and black & white by Peter Hamlin. Fine copy (owner name on end paper) in fine dust jacket (in mylar).
Garner, Alan. Once Upon a Time, Though It Wasn't In your Time, And It Wasn't in My Time, and It Wasn't in Anybody Else's Time... London. Dorling Kindersley. 1993. 4to. Hard cover. First edition. Illustrated in black, white and color by Norman Messenger. Fine copy in fine dust jacket (in mylar).
Gash, Amy. What the Dormouse Said. Lessons for Gown-Ups from Children's Books. Chapel Hill. Algonquin. 1999. Octavo. Hardcover. First edition. Illustrated by Pierre Le-Tan. Foreword by Judith Viorst. Fine copy in fine dust jacket (in mylar).
Gaylin, Evelyn. Doll Repair. From the Gay World of Dolls. Portland. Gay World of Dolls. 1967. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Gebert, Warren. The Old Ball and the Sea. New York. Bradbury. 1988. Octavo. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
George, Jean Craighead. Morning, Noon, and Night. New York. HarperCollins. 1999. Octavo. Hard cover. First edition. Illustrated in black, white and color by Wendell Minor. Fine copy in fine dust jacket (in mylar).
George, Jean Craighead. Rhino Romp. New York. Disney Press. 1997. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine dust jacket (in mylar).
Germain, Kerry. "Surf's Up for Kimo." Haleiwa. Island Paradise. 2000. Octavo. Decorated hard cover. First edition. Illustrated in black, white and color by Keoni Montes. Fine copy.
Gerstein, Mordicai. Arnold of the Ducks. New York. Harper & Row. 1985. Octavo. Hard cover. First edition thus. Illustrated in black, white and color by the author. Near fine copy in near fine dust jacket that is glued down.
Gibson, Betty. The Story of Little Quack. Boston. Little, Brown Co. 1991. Octavo. Hard cover. First edition. Illustrated in black, white and color by Kady MacDonald Denton. Fine copy (very small closed tear on end paper) in fine dust jacket (in mylar).

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Often when we think of a contract, we think of the multi-page document that is plagued with legal jargon and minuscule print, followed by signature lines, and then sometimes followed by even more documents nicknamed “schedules” or “annexes” that in some way modify or supplement everything in the previous pages. But courts do not necessarily require contracts to take on this formal appearance in order to be enforceable.
In order to create a binding contract, courts require the following four elements: (1) an offer, (2) acceptance of that offer, (3) consideration (meaning payment or other benefit to one party or a detriment to another party), and (4) definite certain terms. If there is no formal, written contract, then courts will require a fifth element: demonstration of an intent by the parties to be bound by a contract. This fifth element is an objective standard, so it has nothing to do with what you actually intended, and everything to do with the language actually used by the parties and how a reasonable person (really, a judge) would interpret it. See Alyasmen Group, LLC v. MS Rialto Raintree Village IL, LLC, 2011 IL App (1st) 102875-U. As a result, courts in Illinois and other states have on more than one occasion found all of these required elements to be present in emails or letters sent by unsuspecting business people.
In one somewhat surprising case, business partners exchanged emails about how to close a joint real estate business venture and distribute earnings from completed real estate transactions. Less than one month after the partners reached an agreement by email as to how earnings would be distributed, the partners signed a written contract with terms different than what was agreed to in the emails. One of those business partners later sued to enforce the agreement set forth in the emails. Upon review of the case, the court determined that the business partners expressed the intent to be bound by the emails where one of them stated in his email, “this is final and agreed to,” and even offered to print out and sign a copy of the emails. Furthermore, the terms of the agreement were sufficiently definite and consideration existed such that the judge ruled the emails could constitute a binding contract aside from the actual signed, written contract. Bryant v. Way, C.A. No. 11C-01-164 RRC, 2011 WL 2163606 (Del. Sup. Ct. May 25, 2011).
Courts seem most eager to rule emails are binding contracts when the emails relate to the settlement of an ongoing dispute. An employer was able to enforce an agreement reached through email with an employee regarding settlement of that employees’ employment discrimination claim in Todd v. Kohl’s Department Store, No. 08-CV-3827, 2010 WL 3720265 (N.D. Ill. Sept. 15, 2010). Similarly, in Protherapy Associates, LLC v. AFS of Bastian, Inc., No. 6:10CV0017, 2010 WL 2696638 (W.D. Va. July 7, 2010), a judge ruled an email setting forth payment terms in settlement of a dispute between a provider of physical therapy services and nursing homes was enforceable against the nursing homes.
Emails are not the only correspondence exposed to potentially being ruled an enforceable contract. Letters of intent generally are used to express the intent of two parties to enter into a written agreement in the future, but these too could be construed as an enforceable contract. The Illinois Supreme Court found that one letter of intent between a general contractor and subcontractor was ambiguous as to whether the parties intended it to be a binding contract and as a result ruled that the trial court must hold an evidentiary hearing to determine whether the letter of intent would in fact be binding. Quake Const., Inc. v. American Airlines, Inc., 141 Ill. 2d 281 (1990). Regardless of the outcome, the parties most certainly incurred legal fees and expenses for a court to rule on whether a letter was an enforceable contract.
So how can you prevent your emails and letters from becoming your next contractual obligation? If you are negotiating or making an offer to someone via email, include a disclaimer in your email that makes it clear the negotiations or offer are contingent on the parties signing a written contract. Don’t bury this disclaimer at the bottom of the email in fine print; intentionally include it in the body of the email so there is no denying your intent. If you are negotiating by a letter of intent or sending some other correspondence such as an offer of employment, use language to make it clear that the letter is not intended to create a binding contract. And as always, if there is any uncertainty, have an attorney do a quick review of before you sign or hit send – your legal fees will be far less for a precursory review than later if you are sued for breach of contract.

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PISTOR v. Reynolds Nejo; Terry Phillips; Tony McDaniel; Arizona Department of Gaming; Gila County; Gila County Sheriff's Department; Travis Baxley, Sgt.; Dennis Newman, Deputy, Defendants.
Rahne PISTOR; George Abel; Jacob Whitherspoon, Plaintiffs–Appellees, v. Carlos GARCIA; Farrell Hoosava; Lisa Kaiser, Defendants–Appellants, Reynolds Nejo; Terry Phillips; Tony McDaniel; Arizona Department of Gaming; Gila County; Gila County Sheriff's Department; Travis Baxley, Sgt.; Dennis Newman, Deputy, Defendants.
Before MARSHA S. BERZON and JOHNNIE B. RAWLINSON, Circuit Judges, and ELAINE E. BUCKLO, Senior District Judge.* Glenn M. Feldman (argued) and D. Samuel Coffman, Dickinson Wright/ Mariscal Weeks, Phoenix, AZ, for Defendants–Appellants. Robert A. Nersesian (argued) and Thea M. Sankiewicz, Nersesian & Sankiewicz, Las Vegas, NV, for PlaintiffsAppellees.
We conclude that the tribal defendants are not entitled to sovereign immunity because they were sued in their individual rather than their official capacities, as any recovery will run against the individual tribal defendants, rather than the tribe. Maxwell v. County of San Diego, 708 F.3d 1075, 1089 (9th Cir.2013), makes our determination pretty much foreordained. But the position of the litigants in this case, and the reluctance of the district court to decide the issue on the pleadings, suggest continuing confusion regarding the application of Maxwell, and also regarding the intersection of tribal sovereign immunity doctrine with § 1983 principles in tort actions brought against tribal officials. We therefore further clarify our previous rulings on these issues.
Plaintiffs Rahne Pistor, George Abel, and Jacob Whitherspoon (“the gamblers”) are “advantage gamblers” who “use[ ] legal techniques ․ to win at casino ․ games.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1131 (9th Cir.2012). They achieve this success by “limit[ing] their play to games with a statistical advantage favoring the player.” (Most casino games favor the house.) Applying advantage gambling techniques, the gamblers won a significant amount of money on video blackjack machines at the Mazatzal Hotel and Casino (“Mazatzal”) in Payson, Arizona. Mazatzal is owned and operated by the Tonto Apache Tribe (“the Tribe”) on tribal land.
In their original complaint, the gamblers alleged the following: on October 25, 2011, Carlos Garcia, a Chief of the Tonto Apache Police Department, Farrell Hoosava, the General Manager of Mazatzal, and Lisa Kaiser, a Tribal Gaming Office Inspector, (“the tribal defendants”) took them from the gambling floor. The gamblers were then handcuffed and led to interrogation rooms inside Mazatzal, where they were questioned. While they were detained, the tribal defendants took significant sums of cash and other personal property from them, none of which has been returned. Before the day of the seizure, “[t]he Gila County Sheriff's Office ․, the Arizona Department of Gaming ․, [and the tribal defendants] met or discussed the seizure of the plaintiffs.” This scheme was concocted “with the goal of punishing plaintiffs for winning so much at ․ Mazatzal, and the hope of stealing back some of the funds that the plaintiffs had legitimately won.” All of these actions were taken “under color of state law,” “in concert with the state defendants” from the Gila County Sheriff's Office and Arizona Department of Gaming. The gamblers sought damages from the tribal defendants (and also from non-tribal defendants) under 42 U.S .C. § 1983 for violations of their Fourth and Fourteenth Amendment rights, and under state tort law for battery, false imprisonment, conversion, defamation, trespass to chattels, and negligence.
The tribal defendants moved the district court for an order “dismissing all claims against them pursuant to Rule[ ] 12(b)(1).” They asserted that the district court “lack[ed] jurisdiction over the subject matter of the claims asserted against the Tribal Defendants ․ based on well-recognized principles of tribal sovereign immunity.” Because “[e]ach of the Tribal Defendants is an employee of the Tonto Apache Tribe or the Tribe's wholly-owned gaming facility, ․ Mazatzal,” the tribal defendants maintained, they possessed “the same sovereign immunity as the Tribe itself, which bars unconsented suits against these defendants.” In support of their motion to dismiss, each of the tribal defendants averred that he or she was “employed by the Tonto Apache Tribe,”1 and that all the actions he or she took during the gamblers' seizure and detention were done “in furtherance of ․ official duties” and within the scope of official authority.
The tribal defendants also submitted a declaration by Hubert Nanty, Executive Director of the Tonto Apache Tribal Gaming Office, attaching a copy of the Tribe's official Tribal Gaming Ordinance. Nanty's declaration explained that the Ordinance, approved by the National Indian Gaming Commission under the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et seq., confers regulatory authority on the Tribal Gaming Commission, a five-member body appointed by the Tribal Council to direct the activities of the Tribal Gaming Office. The Commission, Nanty explained, is empowered by the Tribal Gaming Ordinance to, among other things, “[i]nvestigate any suspicion of wrongdoing associated with any gaming activities,” “detain persons who may be involved in illegal acts in or around the gaming facility for the purpose of notifying appropriate law enforcement authorities,” and “[p]rovide referrals and information to the appropriate law enforcement officials when such information indicates a violation of Tribal, Federal, or State [law].” “All of the actions that Carlos Garcia, Farrell Hoosava and Lisa Kaiser took with respect to the plaintiffs on October 25, 2011[,] were done solely in their capacities as tribal officials ․ [and solely] within the scope of their authorities under the Tonto Apache Tribal Gaming Ordinance,” not under any state authority, Nanty asserted. The tribal defendants also included a supplemental declaration by Garcia, which asserted that his investigation of the gamblers was ordered by Nanty.
The gamblers opposed the tribal defendants' motion, repeating their allegations of conspiracy between the tribal defendants and state defendants to seize the gamblers and steal their property.
The district court went on to hold, in the alternative, that if the tribal defendants' motion were construed as a Rule 12(b)(6) motion to dismiss, “[t]aking the[ ] [gamblers'] allegations as true,” as required under that Rule, the court “would conclude that the plaintiffs have sufficiently stated a § 1983 claim against [the tribal defendants] in their individual capacities.” This was so, the court's order on the dismissal motion stated, because the tribal “[d]efendants are not entitled to tribal immunity ․ if they are sued under § 1983 in their individual capacities for actions that they took under color of state law,” rather than in their official capacities.
“Tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 725 (9th Cir.2008). Tribal sovereign immunity “also protects tribal employees in certain circumstances,” Maxwell, 708 F.3d at 1086, namely, where a tribe's officials are sued in their official capacities. “A suit against ․ [a tribe's] officials in their official capacities is a suit against the tribe [that] is barred by tribal sovereign immunity.” Miller v. Wright, 705 F.3d 919, 927–28 (9th Cir.2013), cert. denied, 133 S.Ct. 2829 (2013) (internal quotation marks omitted).
“Issues of tribal sovereign immunity are reviewed de novo.” Burlington N. & Santa Fe Ry. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir.2007). Although generally “[a] district court's denial of a motion to dismiss is not a final decision within the meaning of 28 U .S.C. § 1291, ․ an adverse decision ․ denying tribal sovereign immunity as a complete defense to proceeding with the litigation” is considered a final decision for purposes of § 1291 appellate jurisdiction. Id. at 1089. That is because, “[a]s with absolute, qualified, and Eleventh Amendment immunity, tribal sovereign immunity ‘is an immunity from suit rather than a mere defense to liability; and ․ it is effectively lost if a case is erroneously permitted to go to trial.’ “ Id. at 1090 (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143–44 (1993)) (alteration in original) (emphasis omitted).
“[T]he issue of tribal sovereign immunity is [quasi-]jurisdictional.” Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989); see also Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1015–16 (9th Cir.2007); Evans v. McKay, 869 F.2d 1341, 1345–46 (9th Cir.1989). Normally, “ ‘[s]ubject-matter jurisdiction’ refers to ‘the courts' statutory or constitutional power to adjudicate the case.” ’ Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010) (quoting Steel Co. v. Citizens for a Better Env't., 523 U.S. 83, 89 (1998)) (emphasis omitted). Under that general rule, “when a federal court ․ lacks subject-matter jurisdiction, the court must dismiss the complaint,” sua sponte if necessary. Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n.12 (9th Cir.2012) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). Sovereign immunity's “quasi-jurisdictional ․ nature,” by contrast, means that “[i]t may be forfeited where the [sovereign] fails to assert it and therefore may be viewed as an affirmative defense.” Arizona v. Bliemeister (In re Bliemeister), 296 F.3d 858, 861 (9th Cir.2002); see also Alto v.. Black, 738 F.3d 1111, 1125 (9th Cir.2013) (describing sovereign immunity as “a quasi jurisdictional issue”). In other words, sovereign immunity is not “jurisdictional in the sense that it must be raised and decided by this Court on its own motion,” Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 515 n.19 (1982), but rather in the sense that it “may be asserted at any time.” Mitchell v. Franchise Tax Board (In re Mitchell), 209 F.3d 1111, 1117 (9th Cir.2000), abrogated on other grounds as recognized by Hibbs v. Dep't of Human Res., 273 F.3d 844, 853 n.6 (9th Cir.2001). A defendant may, however, be found to have waived sovereign immunity if it does not invoke its immunity in a timely fashion and takes actions indicating consent to the litigation. See in re Bliemeister, 296 F.3d at 862; Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 760 (9th Cir.), amended on denial of reh'g, 201 F.3d 1186 (9th Cir.1999). Although sovereign immunity is only quasi-jurisdictional in nature, Rule 12(b)(1) is still a proper vehicle for invoking sovereign immunity from suit.2 See, e.g., Maxwell, 708 F.3d at 1081; Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir.2012) cert. denied sub nom. Pentonville Developers, Ltd. v. Republic of Iraq, 134 S.Ct. 64 (2013); Mills v. United States, 742 F.3d 400, 404–05 (9th Cir.2014).
In the context of a Rule 12(b)(1) motion to dismiss on the basis of tribal sovereign immunity, “the party asserting subject matter jurisdiction has the burden of proving its existence,” i.e. that immunity does not bar the suit. Miller, 705 F.3d at 923 (quoting Robinson v. United States, 586 F.3d 683, 685 (9th Cir.2009)). When a district court is presented with a challenge to its subject matter jurisdiction, “ ‘[n]o presumptive truthfulness attaches to [a] plaintiff's allegations.” ’ Robinson, 586 F.3d at 685 (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983)). In resolving such a motion, “[a] district court may ‘hear evidence regarding jurisdiction’ and ‘resolv[e] factual disputes where necessary.” ’ Robinson, 586 F.3d 685 (quoting Augustine, 704 F.2d at 1077).
Given these established principles, the district court was incorrect to conclude that “[e]ven if [the tribal defendants] are entitled to tribal immunity from suit ․ it would be inappropriate ․ to dismiss the claims against them for lack of [subject matter] jurisdiction.” To the contrary, as the tribal defendants invoked sovereign immunity in an appropriate manner and at an appropriate stage, i.e. in a Rule 12(b)(1) motion to dismiss, if they were entitled to tribal immunity from suit, the district court would lack jurisdiction over the claims against them and would be required to dismiss them from the litigation. See Leeson, 671 F.3d at 975 n.12. The district court also should not have declined outright to consider the Nanty declaration and Garcia supplemental declaration as arguments raised for the first time on reply, for two reasons. First, the additional declarations did not, in fact, go to “new” arguments, but rather pertained to the defendants' original argument, raised in their Rule 12(b)(1) motion to dismiss, i.e. that they were entitled to sovereign immunity. Second, the declarations presented evidence going to the question of quasi-jurisdiction, and the district court was not bound to consider only the face of the complaint or motion to dismiss nor to accept the gamblers' allegations as true in resolving that issue. See, e.g., Robinson, 586 F.3d at 685.
The district court's alternative reasoning, however, was correct—with regard to the tribal defendants' invocation of tribal sovereign immunity, “the crucial question ․ [is] whether plaintiffs sued these defendants ․ in their official capacities or in their individual capacities”; the suit is in fact against the officials in their individual capacities; and it can therefore go forward.
As a general matter, individual or “[p]ersonal-capacity suits seek to impose personal liability upon a government official for [wrongful] actions he takes under color of ․ law,” and that were taken in the course of his official duties. Kentucky v. Graham, 473 U.S. 159, 165 (1985). By contrast, official capacity suits ultimately seek to hold the entity of which the officer is an agent liable, rather than the official himself: they “ ‘generally represent [merely] another way of pleading an action against an entity of which an officer is an agent.’ “ Id. at 165–66 (quoting Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). For this reason, an officer sued in his official capacity is entitled to “forms of sovereign immunity that the entity, qua entity, may possess.” Id. at 167. An officer sued in his individual capacity, in contrast, although entitled to certain “personal immunity defenses, such as objectively reasonable reliance on existing law,” id. at 166–67, cannot claim sovereign immunity from suit, “so long as the relief is sought not from the [government] treasury but from the officer personally.” Alden v. Maine, 527 U.S. 706, 757 (1999).
The general bar against official-capacity claims ․ does not mean that tribal officials are immunized from individual-capacity suits arising out of actions they took in their official capacities․ Rather, it means that tribal officials are immunized from suits brought against them because of their official capacities—that is, because the powers they possess in those capacities enable them to grant the plaintiffs relief on behalf of the tribe.
Native Am. Distrib. v. Seneca–Cayuga Tobacco Co., 546 F.3d 1288, 1296 (10th Cir.2008).
Tribal sovereign immunity derives from the same common law immunity principles that shape state and federal sovereign immunity. Normally, a suit like this one—brought against individual officers in their individual capacities—does not implicate sovereign immunity. The plaintiff seeks money damages not from the state treasury but from the officer[s] personally. Due to the essential nature and effect of the relief sought, the sovereign is not the real, substantial party in interest.
Id. at 1088 (quoting Shermoen v. United States, 982 F.2d 1312, 1320 (9th Cir.1992)) (alteration in original).
As examples of such suits, Maxwell pointed to Cook, 548 F .3d 718, and Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir.1985). Maxwell, 708 F.3d at 1088–89. In Cook, for example, the plaintiffs' object was to reach the public treasury through a respondeat superior ruling. See Maxwell, 708 F.3d at 1088; see also Cook, 548 F.3d at 727. The tribe in Cook was thus “the ‘real, substantial party in interest,’ “ and the suit against the tribal officers in their official capacities was therefore barred by sovereign immunity principles. Maxwell, 708 F.3d at 1088 (quoting Cook, 548 F.3d at 727). Likewise, in Hardin, sovereign immunity barred the plaintiff from litigating a case against high-ranking tribal council members seeking to hold them individually liable for voting to eject the plaintiff from tribal land. To hold otherwise, we ruled, would interfere with the tribe's internal governance. See Hardin, 779 F.2d at 478. “Hardin was in reality an official capacity suit,” barred by sovereign immunity, because the alternative, to “[h]old[ ] the defendants liable for their legislative functions[,] would ․ have attacked ‘the very core of tribal sovereignty.” ’ Maxwell, 708 F.3d at 1089 (quoting Baugus v. Brunson, 890 F.Supp. 908, 911 (E.D.Cal.1995)).
Maxwell's caution about masked official capacity suits aside, it remains “the general rule that individual officers are liable when sued in their individual capacities.” 708 F.3d at 1089. So long as any remedy will operate against the officers individually, and not against the sovereign, there is “no reason to give tribal officers broader sovereign immunity protections than state or federal officers.” Id.
The principles reiterated in Maxwell foreclose the tribal defendants' claim to tribal sovereign immunity in this case. The gamblers have not sued the Tribe. The district court correctly determined that the gamblers are seeking to hold the tribal defendants liable in their individual rather than in their official capacities. They “seek[ ] money damages ‘not from the [tribal] treasury but from the [tribal defendants] personally.’ “ Maxwell, 708 F.3d at 1088 (quoting Alden, 527 U.S. at 757). Given the limited relief sought, the tribal defendants have not shown that “the judgment sought would expend itself on the [tribal] treasury or domain, or interfere with [tribal] administration, ․ [or] restrain the [Tribe] from acting.” Id. (quoting Shermoen, 982 F.2d at 1320). Even if the Tribe agrees to pay for the tribal defendants' liability, that does not entitle them to sovereign immunity: “The unilateral decision to insure a government officer against liability does not make the officer immune from that liability.” Id. at 1090.
In sum, the tribal defendants have not shown that the Tribe is the “real, substantial party in interest.” Id. at 1088. They are not entitled to invoke the Tribe's sovereign immunity.
We do not have jurisdiction to decide whether the gamblers have successfully stated a claim against the defendants under 42 U.S.C. § 1983. That question is not one of sovereign immunity, but instead concerns whether the gamblers have stated a valid cause of action. The cause of action question is neither reachable under Rule 12(b)(1) nor appealable under Burlington, or, more generally, the collateral order doctrine derived from Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). See, e.g., Zamani v.. Carnes, 491 F.3d 990, 994 (9th Cir.2007); Am. Fed. of Gov't Emps. Local 1 v. Stone, 502 F.3d 1027, 1039–40 (9th Cir.2007).
Nevertheless, we note that the intersection of tribal sovereign immunity principles and § 1983 doctrine appears to be a lingering source of confusion. Both the gamblers and defendants misapprehend the significance for the sovereign immunity inquiry—or rather, the lack of significance—of whether the tribal defendants were acting under color of state law or under color of tribal law when they seized the defendants. We briefly clarify why the § 1983 color of state law issue is not before us and expand on the distinction between that issue and tribal sovereign immunity.
The question whether defendants were acting in their official capacities under color of state or under color of tribal law is wholly irrelevant to the tribal sovereign immunity analysis. By its essential nature, an individual or personal capacity suit against an officer seeks to hold the officer personally liable for wrongful conduct taken in the course of her official duties. Graham, 473 U.S. at 165. As the officer personally is the target of the litigation, she may not claim sovereign immunity—and that is so regardless whether she was acting under color of tribal or of state law at the time of the wrongful conduct in question.
By contrast, whether the defendants were acting under color of state or tribal law when they seized the gamblers is a necessary inquiry for the purposes of establishing the essential elements of the gamblers' § 1983 claim: “To maintain an action under section 1983 against ․ individual defendants, [a plaintiff] must ․ show: (1) that the conduct complained of was committed by a person acting under the color of state law; and (2) that this conduct deprived them of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Evans v. McKay, 869 F.2d 1341, 1347 (9th Cir.1989) (emphasis in original). As we have long recognized, “actions under section 1983 cannot be maintained in federal court for persons alleging a deprivation of constitutional rights under color of tribal law.” Id.; see also Bressi v. Ford, 575 F.3d 891, 895 (9th Cir.2009); R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 982 (9th Cir.1983). The tribal defendants can thus be held liable under § 1983 only if they were acting under color of state, not tribal, law at the time they seized the gamblers.
Evans exemplifies this distinction. In Evans, non-Indians residing in a city on the Blackfeet Indian Reservation sued local police officers and tribal officials in their individual capacities under § 1983, arguing that their arrest under a city ordinance was unconstitutional. Under an agreement between the tribe and the city, the police officers in question were empowered to enforce both local and tribal law. 869 F.2d at 1343–44. The district court dismissed the suit under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, holding that the tribal defendants and police officers possessed tribal sovereign immunity. Id. at 1345.
We reversed. Noting, first, that a § 1983 claim cannot be maintained against a defendant acting under color of tribal law, Evans held that, under the 12(b)(6) standard, the plaintiffs had sufficiently pleaded that both the individual police officers and individual tribal defendants had acted under color of state law when they arrested the plaintiffs under the city ordinance. See id. at 1347–49. In Bressi, similarly, we held that tribal officials were acting under color of state law because they were authorized to act under either, and, in the particular instance, stopped a non-Indian on a public highway and cited him for a violation of state law. 575 F.3d at 896–97.
This case law merely confirms the well-established rule that a § 1983 claim cannot be maintained against defendants who act under color of tribal rather than state law. It does not in any way disturb the tribal sovereign immunity principle that tribal officials are immune only from suits brought against them in their official rather than in their individual capacities.
Tribal sovereign immunity is a quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1) stage, must be addressed and decided. Accordingly, the district court erred in concluding that it could deny the tribal defendants' 12(b)(1) motion even if they were entitled to tribal sovereign immunity. The tribal defendants are not entitled to tribal sovereign immunity, however, because they are being sued in their individual capacities, rather than in their official capacities, for actions taken in the course of their official duties; the gamblers “seek[ ] money damages ‘not from the [tribal] treasury but from the [tribal defendants] personally’ “; and any remedy will not operate against the Tribe. Maxwell, 708 F.3d at 1088 (quoting Alden, 527 U.S. at 757). Whether the tribal defendants were acting under state or tribal law does not matter for purposes of this analysis, although it will matter for purposes of deciding whether the gamblers can succeed in their § 1983 claim.
1. Garcia stated that he was the Chief of the Tonto Apache Police Department; Kaiser stated that she was a Tribal Gaming Office Inspector; and Hoosava stated that he was the General Manager of Mazatzal.
2. Fed.R.Civ.P. 12(b)(1) provides that a party may assert the defense of “lack of subject-matter jurisdiction” by motion.


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a.) Think that the people in the congregation are their flock. They belong to Jesus Christ. God wants His ministers to care for His children. He wants to minister to His children through them.
b.) Manipulate and control His children.
c.) Seduce His children for financial or other gains.
d.) To be bad examples to the flock. They have to have a desire to conform to the image of Jesus and encourage the people to do the same. They are getting God upset because they are "wallowing around" in the same sins they are preaching against!
e.) Preach the Gifts of the Spirit without emphasizing the Fruit of the Spirit.
The Devil doesn’t fight the development of the Gifts of the Spirit as much as the Fruit. As the Fruit of the Spirit develops in us we become more like Jesus and as a result are more dangerous to the devil.
The fact that this season is such a great time of promotion, but also a time of judgment is evident in Revelation Chapter 5 and 6. In Chapter 5 v. 1, John said that he saw a book sealed with seven seals. This book is the Book of Remembrance where God has put the names of His people that He wants to be included in His promotion. Please read my prior message on this Book of Remembrance to see the requirements to be included. In v. 12 John said that the people that he saw around the throne in heaven were saying that Jesus is worthy to receive power, riches, wisdom, strength, honor, glory and blessing. Jesus doesn’t need these blessings. These blessings are for us! Be in position to start receiving more of these blessings this season by spending more time in His presence and desiring above all things to conform to the Image of Jesus by the power of the Holy Ghost!
In Chapter 6 the six seals are opened. These seals are the judgments of God. The first seal revealed a white horse and the one on him had a bow to conquer. This time of Rosh Hashanah is a great time of blessings but 10 days later is Yom Kippur or the Day of Atonement. This feast starts on sundown on October 1. On this feast day sometime in the future, the Great Tribulation will start and end seven years later. Every Day of Atonement before the one that will usher in the Tribulation is a preview of the events of the Great Tribulation. This particular Day of Atonement previews and starts a time of the devil conquering in people's lives like the world has never seen. Be careful not to keep giving into fleshly desires. This could lead to the Devil conquering you in that particular area of your life. Many people will be conquered by the enemy during the Tribulation, but some of this will start now in this particular Day of Atonement. Again, this particular Day of Atonement is a preview.
In v. 4 John said that he saw a red horse when the second seal was opened. Power was given to this horse to take peace from the earth and the people would kill one another. So many people will be fighting each other. There is already so much "infighting" in the Church today, one denomination against another. There is more jealousy and strife in the Church than outside! But this "infighting" is nothing compared to what will happen as this particular Day of Atonement approaches! Again events that are unleashed during this season are a preview of the events surrounding the Great Tribulation!
In v. 8 the fourth seal revealed a pale horse and his name was Death and Hell followed with it. This spirit of Death will be loosed in a greater way on this Day of Atonement again showing a preview of the Great Tribulation. Please pray for the children especially during the time of Halloween (Oct 31) and the end of the winter season. (See my messages on the spirit of Antichrist) The enemy has special plans to attempt to destroy some children. This spirit of Death is under the authority of the spirit of Antichrist, which wants to take people away from their purpose. Death is the best way for this enemy to achieve this. Pray and cover your children with the Blood of Jesus.
When the fifth seal was opened, in v. 9, John saw the souls of the people that were slain for Jesus. They were crying out to the Lord as to when He was going to bring judgment on those who killed them. They were told to rest. This Day of Atonement will usher in a great time of rest for the remnant that is selected as part of His end time plan. He wants to anoint His people to rest in any given situation knowing that He will bring victory. It is easier to rest when there is no attack, but you will find peace in the midst of the greatest tactics of the enemy. Don’t look to escape the situation but believe for His rest to enable you to stand until your particular assignment is over! When you try to deliver souls from the clutches of the enemy, there will be pressure but He will enable you to rest and not try to escape. You won’t stop until the person or persons are delivered. Praise Him!
In v. 12 John saw the sixth seal opened and there was a great earthquake and situations on the earth that frightened so many people who are not saved. They tried to hide from the "wrath of the Lord." Look for that Spirit of Fear to move throughout certain parts of the land, as a preview to the Great Tribulation. The word says that some men's hearts will fail because of fear (Luke 21 v. 26).
In Chapter 8 v. 1, the seventh seal was opened and there was a half hour of silence. Then John saw incense being offered up with the prayers of the saints. This seventh seal will usher in a great time of prayer, especially prayer for those who have to go through the Great Tribulation. This will also happen on this particular Day of Atonement (sundown Oct. 1). Verse 4- 13 show some of the events that will happen during the Great Tribulation.
So, you can see form this message that this is such a great season for blessing from God but the wrath of God will unleashed like never before. Please stick close to Him, be in an attitude of repentance and tell Him that your number one prayer request is to be conformed to the Image of Jesus! Please don’t play games with God! Admit your weaknesses when He convicts and let Him change you! Those that do this will reap great blessings but to the others that play games with God, will reap His wrath. He surely is a God of Mercy but also a God of Justice!

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Borovoy A.G., Vostretsov N.A., Zhukov A.F., Kargin B.A., Prigarin S.M. Damping of fluctuations in a laser beam propagating in snowfalls. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 141-145.
Dobrynin V.I., Mirgazov R.R., Pochejkin K.A., Tarashchanskii B.A. Spectral absorption of light by deep water of Lake Baikal. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 146-152.
Mikhailov G.A., Serednyakov A.S. Numerical and asymptotic estimates of the influence of a stochastic medium model dimensionality on the radiation transfer calculations. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 153-158.
Gusev V.G. Formation of the lateral shear interferogram by double exposure recording of the lens Fourier specklogram of a mat screen. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 159-164.
Barun V.V. Comparison of the visibility of lambertian and retroreflecting objects. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 165-170.
Gortsev A.M., Zavgorodnyaya M.E. Estimation of the parameters of a partially observed alternating flow of events. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 171-175.
Kolosov V.V. Applicability limits of the transfer equation to description of spontaneous radiation amplification in an inhomogeneous active medium. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 176-180.
Geints Yu.E., Zemlyanov A.A., Chistyakova E.K. The effect of SRS threshold decrease in weakly absorbing aerosol particles: numerical calculations. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 181-183.
Donchenko V.A., Zemlyanov Al.A., Zemlyanov A.A., Kopylova T.N., Serykh A.P. Statistical precursors of the effect of stimulated fluorescence of a polydisperse system of micron droplets with a laser dye. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 184-188.
Tartakovsky V.A. Definition of the optical wave phase and a multidimensional analytic signal. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 189-197.
Zuev V.V., Matvienko G.G., RomanovskiI O.A., Kharchenko O.V. Numerical modeling of the laser sounding of atmospheric temperature and humidity using a differential absorption method in the near IR spectral range by means of MEL-01 meteorological lidar. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 198-201.
Banakh V.A., Werner Ch., Kopp F., Smalikho I.N. Fluctuation spectra of wind velocity measured with a Doppler lidar. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 202-208.
Balin Yu.S., Tikhomirov A.A., Samoilova S.V. Preliminary results of sounding clouds and the underlying surface obtained with a spaceborne lidar "BALKAN". // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 209-220.
Arshinov Yu.F., Bobrovnikov S.M., Serikov I.B., Shelefontyuk D.I., Shumskii V.K., Bazylev P.V., Lugovoi V.A., Stolyarov N.N. Calibration of a Raman-lidar gas analyzer of atmospheric emissions from plant stacks using a remote gas chamber. // Atmospheric and oceanic optics. 1997. V. 10. No. 03. P. 221-224.

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