Present: ARMSTRONG, C.J., DREBEN, LAURENCE, RAPOZA, & MILLS, JJ.
Larceny. Firearms. Evidence, Firearm, Hearsay. Practice, Criminal, Hearsay, Assistance of counsel, New trial.
At the trial of a criminal defendant charged with larceny of "one or more firearms" in violation of G. L. c. 266, s. 20, the indictment, the Commonwealth's proof, and the judge's instructions to the jury plainly demonstrated that the Commonwealth was proceeding on a single theory of culpability, namely that the defendant stole pursuant to a single larcenous plan, with one or more firearms as proof of that plan; therefore, the Commonwealth's evidence, which demonstrated that the defendant stole several weapons, only two of which were "firearms" within the statutory definition, was sufficient proof of the crime charged [327-328], and a specific unanimity instruction regarding the theft of each weapon was not required [328-329].
INDICTMENT found and returned in the Superior Court Department on December 29, 1997.
The case was tried before Richard F. Connon, J., and a motion for a new trial was considered by him.
Thomas W. Dee, Assistant Attorney General, for the Commonwealth.
MILLS, J. The defendant appeals from his conviction on a single-count indictment charging larceny of "one or more firearms," in violation of G. L. c. 266, § 30, and the denial of his motion for a new trial. He challenges the sufficiency of the evidence on the Commonwealth's theory of the case; the judge's failure, sua sponte, to give a specific unanimity instruction; the judge's failure, sua sponte, to strike certain hearsay evidence; the effectiveness of counsel; and the denial of his motion for a new trial without a hearing. We affirm.
1. Factual background. The jury could have found the following facts. The defendant, a Taunton police officer for thirty-three years, was appointed the coordinator of a "gun buy-back" program in 1994. The program invited citizens to deliver guns anonymously in exchange for cash or a gift certificate, on the condition that the collected guns be examined, inventoried, and delivered to the State police for destruction. [Note 1] The program was administered by the Taunton police department and was designed to reduce the number of guns in the community. The defendant was assigned the duty of collecting and disposing of the guns and, as the coordinator, was responsible for delivering the guns to the State police and documenting this process. During the first and second collection sessions, 136 guns were collected, but of these, only 130 were delivered to the State police for destruction. The defendant never accounted for the six-gun disparity.
in G. L. c. 140, § 121. [Note 2] The rifle and the Mauser, however, were not capable of discharging a shot or bullet and, accordingly, are "guns," but not "firearms," as that term is defined by the statute.
After the first two collection sessions, the defendant brought a substantial number of guns to his home where he also kept his personal gun collection. The defendant was knowledgeable about the value of guns generally, and knew that the rifle and the Mauser were historic, collectible items of considerable value. During the time the defendant had possession of the guns and prior to his delivery of the 130 guns to the State police, he acted as though the guns were his personal property. For example, the defendant gave the Jennings to Robert Bowen, a man then dating his daughter, with instructions that Bowen "keep [his] mouth shut." Additional facts will be discussed as necessary.
2. Theory of the case. The defendant argues that proof of his indictment required evidence that each of the four identified guns could be discharged (i.e., that each was a "firearm") to take the Commonwealth's case to the jury. Relying on Commonwealth v. Plunkett, 422 Mass. 634 , 638 (1996), the defendant claims that there must be a new trial if the jury, given two theories of guilt, return a general verdict when the evidence supports a guilty verdict on only one of those theories. The defendant's reliance on Plunkett, however, is misplaced, as he assumes incorrectly that each gun constitutes a separate and distinct theory of guilt. This is a case of one prosecution theory, and a single larcenous plan, with one or more items of evidence as proof of that plan.
out of a single scheme, a continuing intent to steal. That even though time elapsed between the incidents, they were not separately motivated, but were part of a general scheme or a plan to steal." Within that framework, it is apparent the remaining guns, which did not meet the definition of "firearm," were nonetheless relevant to the existence of the defendant's continuing intent to steal. See Jackson v. Commonwealth, 430 Mass. 260 , 262 n.4 (1999), cert. denied, 528 U.S. 1194 (2000). This view is bolstered further by the judge's clear instruction that the jury must find that the stolen property was in fact a "firearm," a term the judge proceeded to define. See note 3, infra. Consequently, the indictment, the Commonwealth's proof, and the judge's instructions plainly presented a single theory of culpability, directed to a single larcenous plan, involving multiple stolen items. Indeed, by its reference to "one or more firearms," the indictment explicitly embraced the notion of several stolen items within the single charged offense.
3. Proof to establish "property of another." The defendant next argues that there was insufficient evidence to prove that the guns were the "property of another." Although the defendant acknowledges that the Commonwealth did not need to prove precisely who owned the guns, he claims that the Commonwealth was required to prove that the defendant did not have the right to dispose of the guns "in the manner he saw fit."
Direct proof of ownership, although preferable, is not essential, since the statute requires a showing only that the defendant was not the owner. See Commonwealth v. Souza, 397 Mass. 236 , 238 (1986). Compare Commonwealth v. Bundza, 54 Mass. App. Ct. 76 , 77-78 (2002). Where, as here, the defendant received custody of the weapons through a public program in his official capacity as a Taunton police officer, he did not personally gain ownership of them. Nor did he become owner of the weapons by his continued custody of them. As the defendant did not personally have an ownership claim to the weapons, his retention and personal disposition of them amounted to the theft of the "property of another" within the meaning of the statute.
that the judge erred by not, sua sponte, giving a specific unanimity instruction. The defendant argues that there were "four separate factual theories" requiring a specific instruction that the jury be unanimous as to at least one theory. In so arguing, the defendant essentially equates "theory" with "gun." That argument assumes the proposition we rejected in part 2 of this opinion, that the crime charged here stated multiple theories of criminal liability or separate criminal incidents. It did not. Compare Commonwealth v. Accetta, 422 Mass. 642 , 646 (1996); Commonwealth v. Grandison, 433 Mass. 135 , 146 (2001).
With respect to crimes involving larceny, when it appears that successive takings are actuated by a single, continuing criminal intent or pursuant to the execution of a general larcenous scheme, the prosecutor may charge them as a single crime. See Commonwealth v. Murray, 401 Mass. 771 , 772-774 (1988). See also Commonwealth v. Stasiun, 349 Mass. 38 , 44 (1965) (successive solicitations for a bribe deemed one criminal act under G. L. c. 268, § 8); Commonwealth v. England, 350 Mass. 83 , 86-87 (1966) (successive thefts of money under the general larceny statute, G. L. c. 266, § 30, may be charged as one larceny).
At trial, there was sufficient evidence that the four identified guns were from the program the defendant coordinated. There was ample evidence that the defendant stole the four guns as part of a common scheme or plan and that the Smith & Wesson and the Jennings were "firearms." [Note 3] It was clear that the other two were not.
5. Failure of the trial judge to strike hearsay testimony. The defendant next complains that the judge failed to strike, sua sponte, a gratuitous hearsay statement by a witness. Bowen, a prosecution witness, testified that the defendant brought a substantial number of buy-back weapons to his home and had given the Jennings to him under instructions that he "keep [his] mouth shut." Bowen also testified that the defendant's daughter had shown him a photograph depicting a gun he recognized (the Smith & Wesson). He continued: "She said that it was her gun, that her father had given it to her, and that it was one of the revolvers that came from the gun buy back." This testimony elicited no objection.
6. Effectiveness of counsel. The defendant next claims that his counsel failed to represent him adequately, and acknowledges that he must establish "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). A defendant must show, "in addition to the claimed ineffectiveness, that 'better work [by counsel] might have accomplished something material for the defense' " (footnote omitted). Commonwealth v. Bolduc, 375 Mass. 530 , 540 (1978), quoting from Commonwealth v. Satterfield, 373 Mass. 109 , 115 (1977). The defendant's three principal claims, both individually and collectively, fail to establish his claim of ineffective assistance of counsel.
(a) Failure to request relief as to the gratuitous Bowen hearsay. The defendant first argues that Bowen's gratuitous hearsay statement was not cumulative, but was the only evidence linking the defendant to the Smith & Wesson, and that counsel's failure to move to strike constituted ineffective assistance. The record is to the contrary.
a substantial ground of defense. See Commonwealth v. Curtis, 417 Mass. 619 , 624-625 n.4 (1994).
(b) Cross-examination of Frisbee. The Commonwealth called Jason Frisbee, Bowen's friend, to corroborate Bowen's testimony that he had given the Jennings to Frisbee. Frisbee identified the Jennings as the gun given to him by Bowen and testified that Bowen had told him that the defendant gave him the gun as a gift, that it was from the program and that "according to any records it was nonexistent." On cross-examination, Frisbee admitted that he was not licensed to carry a firearm and that he knew it was illegal to possess the Jennings. Immediately thereafter, the judge conferred with counsel at sidebar, and informed them: "I'm going to advise him that he's now admitting to a violation of a criminal statute which would make him subject to criminal prosecution by his admission alone that he had possession or came in possession of a gun." The judge also indicated that he must "appoint counsel for him." Defense counsel stated that his questioning of Frisbee went to his credibility "since he told the State police of this, and they haven't touched him with it." However, after the judge made some additional comments showing reluctance to have this matter pursued, counsel abandoned any further questioning of Frisbee concerning his admission of firearm possession. The defendant now claims prejudice from the abandonment, speculating that Frisbee "might have asserted his right against self-incrimination," the defendant could then have filed a motion to strike, and "the Court would have had to strike [Frisbee's] entire testimony."
been ineffective. In any event, his tactical decision to abandon this line of questioning was not "manifestly unreasonable." Commonwealth v. Adams, 374 Mass. 722 , 728 (1978).
(c) Failure to request specific unanimity instruction. As we have discussed above, the defendant was not entitled to a specific unanimity instruction. Accordingly, there was no error in defense counsel not requesting one.
7. Lack of a hearing on defendant's new trial motion. The defendant argues that the trial judge erred in denying his motion for a new trial without a hearing.
The defendant moved for a new trial pursuant to Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). He did not file any affidavits in support of his motion, see Mass.R.Crim.P. 30(c)(3), 378 Mass. 901 (1979), and although he requested oral argument, he did not request an evidentiary hearing. It is, thus, fair to conclude that the defendant was proceeding on the facts from the existing trial record.
The decision whether or not to hold an evidentiary hearing on a motion for a new trial is left largely to the sound discretion of the judge. See Fogarty v. Commonwealth, 406 Mass. 103 , 110 (1989). "In exercising this discretion the judge must decide whether a substantial issue necessitating an evidentiary hearing has been raised. . . . In doing so, the judge looks not only to the seriousness of the claims presented, but also to the adequacy of the defendant's factual showing on those claims." Id. at 111. See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631 , 635-636 (2001).
Because the defendant did not raise any substantial new issue of fact in his motion and because the motion judge was also the trial judge and had shortly before presided at the trial (which included a motion for required finding of not guilty at the close of the evidence), it was within the judge's discretion to deny the defendant's motion without a hearing.
[Note 1] In 1994, there were seven different collection sessions held on different dates and at several locations throughout Taunton.
[Note 2] The statute defines "firearm" as "a pistol, revolver, or other weapon . . . from which a shot or bullet can be discharged and of which the length of the barrel . . . is less than sixteen inches." G. L. c. 140, § 121.
[Note 3] The judge gave a precise instruction of the required proof of "firearm." We assume that the jury followed the instructions. Commonwealth v. Watkins, 425 Mass. 830 , 840 (1997).
[Note 4] The defendant's reliance upon Commonwealth v. Conefrey, 420 Mass. 508 (1995), is misplaced. In Conefrey, the defendant requested, in writing, that the judge give a specific unanimity instruction. See id. at 510-511. The judge refused and the defendant objected. See ibid. Conefrey was a case of indecent assaults and batteries by a father on his daughter, during the course of a year, with evidence of eight separate incidents, with no specific dates for any of the incidents. The court noted that, "where evidence of separate incidents is offered to the jury and any one incident could support a conviction, a general unanimity instruction may not suffice to ensure that the jury actually does reach a unanimous verdict" (emphasis supplied). Id. at 513. But here the instruction was not requested. The charge and proof were not complex and there was no variance between the indictment and the proof at trial. There were no other factors creating any genuine risk of jury confusion. There was no error.
[Note 5] Absent objection, jurors are entitled to give hearsay such probative effect as they deem appropriate. See Abraham v. Woburn, 383 Mass. 724 , 726-727 n.1 (1981). We deem the statement to be hearsay, contrary to the Commonwealth's argument that it is within a recognized exception as evidence of "a plan, common scheme, or course of conduct."
[Note 6] In Stovall, as in this case, the prosecutor did not frame the questions to elicit hearsay testimony from the witness. See Commonwealth v. Stovall, 22 Mass. App. Ct. 737 , 743 (1986). The characterizations that Bowen's statement was "presented by the Commonwealth" and "allowed" by the court are inaccurate.
[Note 7] We exercise our extraordinary and rarely used discretion to review an unpreserved error so as to avoid a substantial risk of a miscarriage of justice only when the appellant clearly demonstrates that a serious and obvious error did in fact occur, which is not the case here. See Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591 , 604 (2000).


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and Rehearing EnBanc Denied Oct. 7, 1974.
Nathaniel G. W. Pieper, Tampa, Fla. (Court-appointed), for Reginald cochran.
Henry Gonzalez, Tampa, Fla., for William Ronald Watson.
Arnold Levine, Tampa, Fla., for William Robert Bland.
John L. Briggs, U.S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.
Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
A flim-flam is a confidence game designed to fleece a victim through some fraud or trickery, in this case by a pretended sale of stolen gems at a bargain price. By a three-count indictment Reginald Cochran, Stanley Cochran (son of Reginald), Parker (an associate of the Cochrans), Bland (a Tampa police official), and Watson (a Tampa used-car lot owner) were charged with violations of 18 U.S.C.A. 2314, 2 and 371. Count one charged the defendants with conspiring to transport from Georgia to Florida stolen gems for use in a flimflam and transportation of the gems and the monies obtained from the flim-flam back to Georgia. Counts two and three charged the substantive offenses of interstate transportation from Valdosta, Georgia to Tampa, Florida and vice versa. Reginald Cochran was found guilty on all counts. Bland and Watson were found guilty on counts one and three.1 In their appeal the defendants assert various errors, including prosecutorial misconduct, error in the court's refusal to sever their trials, error in evidentiary and procedural rulings, and, as to Watson, ineffective assistance of counsel requiring a mistrial. We affirm.
Sufficiency of the evidence to support the verdicts is not contested by any of the defendants, so it would be inutile to detail the evidence presented in this lengthy trial.2 In abbreviated form the historical facts undergirding the convictions established that Stanley Cochran knew burglars who had robbed a jewel merchant in Georgia of about $80,000 in gems. Stanley introduced the burglars to his father, Reginald, who purchased a substantial quantity of the stolen jewelry.3 After acquiring the gems, Reginald contacted Stanley, Watson and Parker to set up the flim-flam operation in Tampa. Watson then introduced Parker to a Tampa confidence man named Perdue. On April 1, 1971, Reginald and Stanley drove from Valdosta to Tampa, bringing with them an assortment of gems, including the stones Reginald had purchased from the burglars in Georgia.
Reginald had also invited Dyal, an acquaintance, to participate in the flim-flam. Reginald told Dyal that Watson was in on the operation and that the 'blow-off' man would be a policeman who had been on the Tampa police vice squad. Unknown to Reginald, Dyal was an informer for the FBI who communicated his information to a special agent.
On April 1, 1971, Parker Watson and the two Cochrans met at Watson's used-car lot in Tampa to discuss the operation. After formulating their plans, Parker left with Perdue to meet the intended victim, Letizia, who was chosen because he was though to have been skating on the penumbras of the law. As a result of his conversations with Letizia, Perker reported back to Watson and the Cochrans that Letizia had agreed to look at the stolen jewels and that he should be 'good' for fifteen to twenty thousand dollars. Watson and Reginald assured Parker that they had a 'blow-off' man available-- that is, a person who, at the right moment, appears and announces that he is a policeman and ostensibly arrests the confederate carrying the jewels so that another confereate can persuade the victim to flee to avoid arrest. Thus, in a successful flim-flam, even if the victim suspects that he has been swindled, he would not report the incident, since to do so would be to admit his intention to buy stolen property.
On April 2, 1971, Parker and Perdue again met Letizia and explained that they knew a person who had a quantity of stolen gems which could quickly be resold at a large profit, but that they did not have enough money between the two of them to make the purchase. They offered to cut Letizia in for fifty percent of the profits if he would help finance the purchase. The proposal apparently appealed to Letizia, who went with Parker and Perdue to a motel room that Parker had previously rented. At the motel, the three were greeted by Stanley, playing the part of the thief, who after some 'persuasion' let them into the room and then displayed the merchandise. To make the flim-flam look genuine, Parker expressed doubt as to the gems' value and suggested that they have an appraiser whom he knew examine the stones. Stanley 'agreed,' so Parker went outside and called Watson at the car lot, instructing him to send Reginald over to act as an appraiser. Parker also told Watson that he would need the 'front money' to induce Letizia to go through with the deal. A few minutes later, and unbeknown to Letizia, Watson brought Parker $1,200 in $100 bills. In addition, Perdue had $200 to use as front money.
At the appointed time Reginald appeared at the motel room with scales, measuring devices, and other jeweler's equipment. He was introduced to Stanley, the 'thief,' and Letizia, the victim, and examined the stones that Stanley had laid out. Upon completion of his appraisal, Reginald, Accompanied by Parker, Perdue and Letizia, went into the bathroom, out of the presence of Stanley, where Reginald said he would pay $22,500 for the gems. Reginald then left, and Parker, Perdue and Letizia finally settled with Stanley on a price of $15,000 for the gems. Parker left with Letizia to get Letizia's money, while Perdue stayed with Stanley, ostensibly to ensure that Stanley made no substitutes of the gems he had shown.
At this point, Letizia withdrew $14,000 from his savings account. Parker then telephoned Watson at the car lot, who told him to proceed with Letizia to the Holiday Inn motel, where the transfer was to be made. Watson assured Parker that the 'blow-off' man was ready. Stanley and Perdue went to the Holiday Inn, where Stanley saw appellant Bland, the 'blow-off' man, seated in his green Chevrolet, an unmarked official police car, assigned on a permament basis to Bland as a Major in the police department. Upon the arrival of Parker and Letizia, they all adjourned to the men's rest room. Stanley gave Parker the jewels, and Letizia gave Stanley $13,600 to add to the $1,400 in front money put up by Parker and Perdue. Stanley left with the money, cautioning the others to wait a few minutes before leaving. Upon his departure from the motel Stanley again saw Bland seated in his car.
A few minutes later the others left the motel, with Parker carrying the jewels. By prearrangement Parker was to be 'arrested' while Perdue was to keep Letizia inside so he could not observe the 'arrest' too well. As Parker stepped outside, he saw Watson pointing toward Bland's car. Bland immediately drove up to Parker, got out and 'arrested' him, taking the jewels from Parker and directing Parker to get into the car. Parker looked back, saw Letizia observing the action and heard him say, 'Goddam, another flim-flam.' Bland then drove the 'arrested' Parker to Watson's lot, where Parker rejoined Watson and the Cochrans. Parker gave the jewels back to Cochran, and after the front money was deducted, the $13,600 was split six ways, with Watson keeping the shares of Bland and Perdue.
Later in the day, Perdue told Watson, Parker and the Cochrans that Letizia had gotten an auto license number. It developed that after seeing the 'arrest' Letizia had rushed back into the motel, grabbed a pen from the hand of a guest at the registration desk, tore off a piece of paper, and had written a number on it. While waiting for the police, Letizia told the desk clerk and the bartender that he had been robbed of $13,000. Upon the arrival of a police officer, Letizia gave him the paper with a tag number written on it, which was later found to correspond with the license number on Bland's official car. Letizia also gave the officer a description of the car which matched the unmarked police unit permanently assigned to Major Bland.
That night Reginald drove back to Valdosta with the jewels and his share of the money. Stanley flew to Atlanta, Georgia with his share, and the next day Parker drove to Valdosta with his share.
At trial, neither Reginald nor Watson testified. Officer Bland did take the stand. In essence Watson and Bland denied any participation in the flim-flam and presented an alibi defense.
By collating what they define as a series of unfair tactics employed by the prosecutor, the defendants paint prosecutorial misconduct with a broad brush. First, they complain about the prosecutor's allegedly improper use of Jencks Act statements.4 On several occasions, after extensive use on cross-examination by defense counsel of prior statements and interviews, the Government then offered the statements into evidence, but the district court excluded them. The defense argues that the Government's offer in itself constituted improper conduct, since it was done in an attempt to impugn the integrity of defense counsel by suggesting that the defense was attempting to hide certain facts from the jury. Not so, says the Government.
Almost without exception, defense counsels' attempts to impeach the Government's witnesses focused not on any prior inconsistent statement of the witnesses but on the absence from the prior statements of some detail that had been included in the trial testimony. For example, defense counsel would direct the witness' attention to some portion of testimony given by him on direct examination, then show the prior statement to the witness and direct him to examine it and state whether the testimonial statement could be found in it. After such attempted impeachment by the defense, the Government offered the full statements of its witnesses for the purpose of enabling the jury to understand the context in which the asserted impeaching omissions occurred. None were admitted.
We are unmoved by the arguments of either the Government or the defendants. Beaudine v. United States, 5 Cir. 1969, 414 F.2d 397, 403, relied on by the defendants, lends them no support. There we adopted the well-reasoned opinion of the First Circuit in Pallotta v. United States, 1 Cir. 1968, 404 F.2d 1035, 1037, in which the court said: 'If the statements are used in cross-examination, the jury should be informed of the source of the questions and the statutory authority governing the use of such statements.' We sought to avoid either the prejudice to a defendant that might result from the jury's knowledge of a Government witness' prior statements that defendants were unable to use for impeachment, and the prejudice to the Government that might result, if prior statements were used, from the inference of concealment that might follow if their source were not disclosed.
While wo do not disagree with the Government that the offers of the statements were made in good faith, assuming them to be admissible under the doctrine of testimonial completeness ('which permits the introduction into evidence of an entire statement when only a portion of it has been used by an opponent,' thus giving the trier of fact a complete understanding of the tenor and effect of the statement in its proper context, United States v. Smith, 6 Cir. 1964, 328 F.2d 848, 850, cert. denied, 1964, 379 U.S. 936, 85 S.Ct. 336, 13 L.Ed.2d 346; United States v. Lev, 2 Cir. 1960, 276 F.2d 605, 608, cert. denied, 1960, 363 U.S. 812, 80 S.Ct. 1248, 4 L.Ed.2d 1153; Short v. United States, 9 Cir. 1959, 271 F.2d 73, 78, cert. denied, 1960, 361 U.S. 948, 80 S.Ct. 402, 4 L.Ed.2d 381), we agree with the court below that in the circumstances here presented the statements should have been excluded. The testimonial completeness doctrine has never been expanded beyond showing an inconsistency between two positive statements about the same thing. While an asserted inconsistency in the form of a prior omission is a much more ambiguous proposition, it can, in most instances, be adequately dealt with by interrogation of the witness rather than by an introduction of the earlier statement. The trial judge must exercise his sound discretion in the circumstances as they develop at trial so that the cross-examiner may not unfairly be credited with impeaching a witness without having ever demonstrated any inconsistency to the jury. Having said this, it is apparent that the prosecutor was guilty of no prejudicial misconduct in offering the statements to counter the defendant's attempted impeachment by silence in prior statements, even though under the circumstances sub judice the lower court properly ruled that the statements were inadmissible.
The prosecutor is next accused of causing Stanley Cochran to delay the entry of his pleas of guilty, although it is argued that Stanley desired to so plead from the trial's inception, in order to introduce the testimony of another witness to implicate both Stanley and Bland with testimony that could not have been elicited from Stanley himself. This argument is unpersuasive. As the trial judge correctly noted, Stanley was separately represented by his own attorney throughout the trial and long before it commenced. He was meticulously advised of his rights and expressed satisfaction with his counsel. We find it difficult to understand how the prosecutor could have stood in the way of Stanley's guilty pleas, except by some promise in a plea bargain, but there was no showing that such a bargain had been made. Of course, the other witness' testimony would have been entirely unnecessary had Stanley decided earlier to change his pleas to guilty. It is obvious that when the evidentiary noose was tightened by the witness' testimony, Stanley decided to change his plea to guilty and testify. We find no merit to the charge that the prosecutor struck a foul blow in delaying the time of Stanley's pleas in order to obtain an undue trial advantage.
Characterizing the actions of the prosecutor as an overkill in introducing evidence that Parker, Stanley, and Reginald committed flim-flams and other crimes at various times and places unconnected with Officer Bland, Bland argues that this evidence presented the picture that all of the defendants on trial were people of bad character and that he was therefore prejudiced. We disagree.
The record is replete with limiting instructions given by the court with respect to which specific defendant or defendants the particular evidence was either admitted against or excluded. Other instructions were to the effect that the testimony could be considered only with respect to the issues of knowledge and intent.
Curiously, at trial, counsel for Bland took the opposite tack-- that evidence of other flim-flams committed by his codefendants (except Watson) in which he did not participate inured to his benefit. Before any evidence was taken, Bland's counsel announced his intention of showing by cross-examination that Parker and the Cochrans had been involved in many flim-flams over the years and that some one other than Bland was used as a 'blow-off' man. He pursued this strategy during the trial by eliciting from Parker the fact that over the past fifteen years he had been involved in at least twenty flim-flams.
The clear rule is that although evidence dence introduced in a criminal trial should relate only to the specific offense charged, prior or subsequent incidents may be introduced to establish that a defendant possessed a reguisite knowledge or intent or that there is a consistent pattern, scheme of operations, or similarity of method. United States v. Alston, 5 Cir. 1972, 460 F.2d 48. See also United States v. Harrison, 5 Cir. 1972, 461 F.2d 1127. Of course, the probative value of the evidence offered to show 'system and intent' must be balanced against any inflammation or prejudice that may result from the nature of the evidence offered. That balancing, however, is left largely within the sound discretion of the trial judge. See, e.g., United States v. Byrd, 2 Cir. 1965, 352 F.2d 570.
United States v. Goodwin, 5 Cir. 1972, 470 F.2d 893, 899, cert. denied, 1973, 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691. Cf. United States v. Kasouris, 5 Cir. 1973, 474 F.2d 689. We are convinced that no abuse of discretion occurred when the court below admitted the evidence in question.
Next in the series of prosecutorial acts complained about, the defendants accuse the prosecutor of having elicited, on four occasions during the trial, and then having argued to the jury, that witnesses Parker, Tedder and Stanley Cochran either were afraid or had requested protection, and further, that defendant Bland had told witness McCullers that Reginald Cochran had a 'contract out' on another witness. Defendants argue that the prosecutor created an atmosphere that cast them in the role of violent and dangerous characters, habitual lawbreakers or murderers for hire, and that this was done to ensure punishment of the defendants irrespective of their guilt or innocence of the crimes charged.
In the context in which these matters arose, the defendants' arguments are both inaccurate and overbroad. The four specific instances referred to by the defendants cannot be isolated from five weeks of a bitterly fought trial with coruscating counsel for the defense and for the Government each tuned for a joust made necessary by the other's challenge. Thus, we must place each instance complained of in its proper setting.
A. I didn't know he was an investigator, Mr. Dempsey, I was just told that he was . . .. I just merely was taking precautions for myself.
A. Because I felt that if they found out at that time, that possibly there could be bodily harm or something. I had a family out there I was looking out for at the time.
On recross examination Bland's counsel underlined the evidence by again having Parker reiterate that he thought it necessary to take precautions for himself. Further examination by the prosecutor brought a response from Parker that he was informed that protection would be provided if necessary.
It would seem clear that the evidence complained of falls squarely within 'the basic principle that a witness impeached on the basis of prior inconsistency 'may always endeavor to explain away the effect of the supposed inconsistency by relating whatever circumstances would naturally remove it,' 3 Wigmore, Evidence, 1044, p. 737 (3d ed. 1940) . . .. Fear of the consequences of plain speaking is such a circumstance . . ..' United States v. Franzese, 2 Cir. 1968, 392 F.2d 954, 960, vacated on other grounds, 1969,394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297; United States v. Pritchard, 7 Cir. 1972, 458 F.2d 1036, 1039-1040, cert. denied, 1972,407 U.S. 911, 92 S.Ct. 2434, 32 L.Ed.2d 685; United States v. Scandifia, 2 Cir. 1968, 390 F.2d 244, 250-251, vacated on other grounds, 1969, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297; Carbo v. United States, 9 Cir. 1963,314 F.2d 718, 743-744, cert. denied, 1964, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498.
Defendants' reliance on Hall v. United States, 5 Cir. 1969, 419 F.2d 582, and United States v. Carney, 3 Cir. 1972, 461 F.2d 465, is misplaced. During argument the prosecutor in Hall asserted, without any evidentiary support, that a witness was afraid of the defendant, and tried to imply that the defendant had tampered with the witness. The court did not hold that evidence of fear is inadmissible, but rather, that under the facts there presented, the argument that a witness was fearful was improper because it was not based on any evidence. In Carney an inimpeached witness' testimony that the defendant had tried to kill him and his children was brought out on direct examination and without a showing that the threats had any connection with the case in which the witness testified. In contrast, we find no error, prosecutorial or otherwise, with respect to the evidence elicited from the witness Parker.
Q. And sometime later that evening, do you recall being arrested by the (FBI)?
A. Yes. Because I asked to be.
Q. You mean you asked the law enforcement officials, meaning the FBI and the State officials, to arrest you?
Q. And you asked them to arrest you on a pretext, a false arrest?
A. No sir, for my protection.
Q. So at the Howard Johnson's earlier in the day you were arrested by Detective Cloud?
A. They were not going to hold me. The police of FBI and I asked to for my own protection.
None of the other defendants objected to this cross-examination. It was only then that the prosecutor on redirect examination, without objection, asked similar questions to underscore the fact that both the witness and his brother had requested that they be arrested for their own protection. As this Court has previously stated: 'Defense counsel may not complain of what became visible through a door deliberately opened by him.' United States v. Millican, 5 Cir. 1970, 424 F.2d 1038, 1040.
The defendants next accuse the prosecution of introducing evidence through Stanley Cochran that he feared harm in the county jail where he was incarcerated with his father. The record, however, shows a different origin of this evidence. Nothing relating to a change of the place of Stanley's confinement was mentioned on direct, cross or redirect examination. Watson's counsel on recross first explored the subject, and a brief inquiry was thereafter made by both the prosecutor and Bland's counsel. Suffice it to say that no objection was made by any other defendant to matters brought up by a co-defendant. We will not notice matters which were not presented to the district court except to prevent a miscarriage of justice, which clearly is lacking here. Rule 30 F.R.Crim.P.; United States v. Knox, 5 Cir. 1972, 458 F.2d 612, cert. denied, 1972, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 85; United States v. Hall, 5 Cir. 1971, 440 F.2d 1277; D. H. Overmyer Co. v. Loflin, 5 Cir. 1971, 440 F.2d 1213, cert. denied, 1971, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90.
A more substantial contention is made by the defendants that the prosecutor elicited testimony from McCullers, a policeman, that co-defendant Bland had told him that the 'Georgia boys had a contract out' for Government witness and FBI informant Dyal. Objection was made and sustained during the trial, and the court carefully instructed the jury when this incident occurred.
Q. Officer, did you consider the fact that someone had a contract out on another individual as raising the possibility of a crime being committed?
Q. Well, didn't you ask Major Bland who the Georgia boys were, so that you could go down and have them prosecuted?
A. No, sir. He already indicated that.
Q. He indicated that to you?
Q. Is that in your report?
Q. As a matter of fact, you say in your report that he makes no mention whatsoever of reference to any individual.
There was an objection at this point by the prosecutor which was overruled.
A. He referred to the Georgia boys.
Q. I mean, did you ask him, so that you could effectively prosecute the Georgia boys for a threat on Lloyd Dyal's life, who they were?
Another objection by the prosecutor was overruled.
Q. Would you answer that question?
Q. You did ask him who they were?
A. No, I didn't ask him the names, but in relation to the investigation I inferred that the Georgia boys were probably the Cochrans, father and son.
The court immediately instructed the jury to disregard that answer as speculative, cautioning the jury that there was no evidence in the case from which any such inference could be drawn. Under the circumstances, we think that if the evidence was inadmissible, and we have serious doubt that it was, the instruction given by the court was sufficient to overcome reversible error.
First, it was not the prosecutor who initiated the identification of the 'Georgia boys,' but was instead Bland's counsel. Second, that Bland would make such a statement concerning a witness who had just testified that day for the Government was, we think, admissible as going to Bland's motivation and bias in connection with his own testimony. Of course, the fact that Bland made such a statement did not tend to prove that Reginald Cochran actually made a threat concerning Dyal, and he would have been entitled to an instruction to that effect. United States v. Franzese,supra, 392 F.2d at 960. In fact, the instruction given by the court was more beneficial to Cochran than would have been an explanatory instruction, i.e. that Cochran was entitled not to have the jury take Bland's statement as substantive evidence against him, although Bland was not entitled to be relieved of the consequences of having said it. Moreover, we agree with the district court that McCullers' testimony had no spillover effect on Bland or Watson, because their alibi defense and their tactical approach throughout the trial were separate and distinct from that of Cochran.
Finally, the defendants assert, and the Government concedes, that the prosecutor improperly asked Stanley Cochran whether he had had a conversation with Bland's counsel, in which the attorney allegedly told Stanley that he had done the right thing in pleading guilty since the evidence was sufficient to convict him and his father, Reginald. Regardless of some provocation (lengthy cross-examination of Stanley pointing to a probable deal between him and the prosecutor which they were trying to conceal from the jury), the question was improper. An objection was sustained, and again the court carefully and properly instructed the jury that they were to disregard this matter.
The district court gave studied attention to the problem both at the time that it arose during the trial and upon the defendants' motion for a new trial. It concluded, and we agree, that the proof against Reginald Cochran, 'both direct and circumstantial, was so convincing and overwhelming that no jury could have entertained a reasonable doubt concerning his guilt.' The error was therefore harmless beyond a reasonable doubt. Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. Cf. Donnelly v. DeChristoforo, 1974, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431. And again, because of the nature of their defense and the fact that their tactical approach throughout the trial was separate and distinct from that of Reginald, there was no spillover effect on the other defendants.
As a wrap-up of claimed prosecutorial misconduct, the defendants extract a dozen or so instances from a voluminous transcript to emphasize how the prosecutor employed speaking objections, testimonial questions, and the characterization of testimony in his interrogation of witnesses. But it was not all one-sided. Counsel for defendants were, on an equal number of occasions, admonished by the court for acting outside the bounds of proper trial techniques. All of this was de minimis in a five-week trial. And it is noteworthy that counsel for all parties demonstrated a concern for a fair trial by disclosing in advance in bench conferences and in chambers evidentiary matters that they proposed to inquire into which might have raised problems concerning admissibility. This is professionalism of the highest order. And in this long and difficult trial, the district court kept the proceedings on an even keel by courteously and attentively listening to the objections of counsel, and then promptly and firmly ruled on the thorny questions posed. 'After reviewing the record of the incidents, statements and arguments alleged to have been prejudicial, we conclude that they were not so misleading, inflammatory or prejudicial as to deny defendants a fair trial.' United States v. Burke, 5 Cir. 1974, 495 F.2d 1226.
We turn now to Bland's contention that the court's refusal to grant his motion for a severance, so as to permit him to present not only exculpatory evidence but also evidence to impeach the credibility of Government witness Parker, constitutes reversible error. We deal with the matter of impeachment first. Bland's proffer was that Reginald Cochran would testify that Parker had stated to him that he, Parker, had participated in a robbery in Ringgold, Georgia in 1968. Parker had previously denied this when he was under cross-examination by Bland's counsel. The district court ruled, and properly so, that even if Cochran were to testify, it would amount to no more than purported impeachment with regard to collateral matters having nothing to do with the issues of the case and would not tend to show bias for or against any defendant. Moreover, the proffer that Reginald was willing to testify was conditioned on the absence of pending charges.
Rule 14, F.R.Crim.P., provides that a motion for a severance is addressed to the discretion of the trial judge. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); Smith v. United States, 385 F.2d 34 (5th Cir. 1967). To challenge successfully the refusal of a trial judge to grant a motion to sever, an appellant must show 'prejudice resulting in the denial of a fair trial.' United States v. Martinez, 486 F.2d 15 (5th Cir. 1973); United States v. Nakaladski, 481 F.2d 289 (5th Cir. 1973). In Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970), we enumerated guidelines for evaluating motions for severance based on a desire to offer exculpatory testimony of a co-defendant.
The court is not required to sever where the possibility of the codefendant's testifying is merely colorable or there is no showing that it is anything more than a gleam of possibility in the defendant's eye. 'The unsupported possibility that such testimony (exculpatory testimony of a codefendant) might be forthcoming does not make thd denial of a motion for severance erroneous.' United States v. Kahn, 381 F.2d 824, 841 (7th Cir. 1967). Accord, Tillman v. United States, 406 F.2d 930, 936 (5th Cir. 1969). In this circuit we have referred to the codefendant's being 'more likely to testify were he (the movant) tried separately.' Smith v. United States, supra, 385 F.2d at 38.
Here there was not even a likelihood that the co-defendants would testify, even if a severance were granted, so long as they remained defendants in this case. The district court thus properly exercised its sound discretion in denying a severance. Cf. United States v. Perez, 5 Cir. 1973, 489 F.2d 51, 65.
Bland next makes a triple-barreled attack on the admissibility of evidence identifying him as the 'blow-off' man at the Holiday Inn on April 2, 1971, when the flim-flam took place. He accuses the prosecutor of circumventing a court order suppressing Bland's identification by the victim Letizia; argues that there was no evidentiary predicate for the admission of Government Exhibit 110 (the paper on which Letizia wrote the license number of Bland's car as he was departing the flim-flam site); and complaints that it was error to exclude the results of a polygraph examination of Letizia in regard to his identification of Bland's car at the Holiday Inn. We find none of the contentions persuasive.
The first two assertions are interrelated. On a motion to suppress made between the first and second trials, Letizia's identification of Bland was excluded. The admissibility of Exhibit 110, however, was not ruled upon. Bland now seems to argue that because improper methods were used by the Tampa Police Department that gave rise to Bland's identification by Letizia resulting in an exclusion order as to Letizia, the Government was precluded from proving by any other witness or by any other means the fact that Bland was at the Holiday Inn on April 2, 1971, and that the prosecutor therefore once again exceeded the bounds of fundamental fairness. Further, Bland suggests that no testimony was presented concerning the circumstances under which Exhibit 110 was made.
Bland's first argument is obviously unsound, and the record belies his second assertion. It was entirely proper for the prosecutor to establish by cross-examination of Bland, and without timely objection, that he had been identified at the site in question. Furthermore, while Bland was 'patting down' Parker as a part of the flim-flam, Parker saw Letizia looking at them and heard him say: 'Goddam, another flim-flam.' The desk clerk at the Holiday Inn saw Letizia rush into the lobby, pick a pen from the hand of a registering guest and a piece of paper from the desk, and then run outside. Letizia returned shortly and asked the clerk to call the police, because he had 'been taken.' He then wrote his name on a piece of paper and left it with the clerk. When Officer Leary arrived on the scene, he was met by a highly upset Letizia, who handed the officer the hotel reservation form with the tag number written on it. FBI Agent Arwine, who obtained a statement from Letizia, fully corroborated these events.5 This then was direct evidence identifying Bland at the scene of the flim-flam and a sufficient evidentiary predicate for the introduction of Exhibit 110.
Bland's attempt to counter this evidence by introducing the results of a polygraph test of Letizia, purportedly showing that Letizia was lying, gives us little pause. Letizia was not a witness and therefore was not the subject of impeachment. In any event 'the rule is well established in federal criminal cases that the results of lie detector tests are inadmissible. United States v. Rodgers, 419 F.2d 1315, 1319 (10th Cir. 1969); Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923).' United States v. Frogge, 5 Cir. 1973, 476 F.2d 969, 970, cert. denied, 1973,414 U.S. 849, 94 S.Ct. 138, 38 L.Ed.2d 97. See also United States v. Pacheco, 5 Cir. 1974, 489 F.2d 554, 566; United States v. Sockel, 8 Cir. 1973, 478 F.2d 1134.
Bland concludes his argument on appeal by ascribing as error the district court's refusal of his request to limit contact between the prosecutor and a Government witness during a noon recess, while the witness was still on direct examination. We find no merit to this contention. Cf. United States v. Burke, supra.
Finally, Watson urges that since his counsel, Gonzalez, previously represented Government witness-informer Dyal in a moonshine case, the confidential attorney-client relationship between Dyal and Gonzalez precluded Gonzalez from effective cross-examination of the witness and this deprived Watson of effective assistance of counsel. The district court denied a motion for mistrial. We find no error.
A brief chronology of events puts this issue in proper perspective. Dyal testified for the Government on January 19, 1973, concerning three conversations that he had with Reginald Cochran, two occurring before and one shortly after the flim-flam. Dyal testified that Cochran told him about the Tampa arrangement, named some of the participants, including Watson, with whom he, Dyal, was acquainted, and further testified that Cochran told him that a Tampa police officer would also participate. After the flim-flam, Cochran told Dyal that 'the heat was on' and that he had to send his own share of the flim-flam proceeds back to Watson in an effort to get Letizia not to press charges.
During a bench conference following the introduction of this evidence on Friday morning, January 19, Bland's counsel announced his intention of cross-examining Dyal with reference to Dyal's obtaining Gonzalez (Watson's counsel) to represent the Cochrans and Parker in their state court criminal proceedings. Gonzalez' response at this conference was: 'I did represent the Cochrans and Parker in the state court. That's one of the reasons why I did not attempt to go into that matter carefully in the questions that I asked Tommy Parker.' Gonzalez said nothing at this time with regard to his prior representation of Dyal.
During another bench conference in the afternoon of January 19, the prosecutor asked Gonzalez if he was not the attorney of record for Dyal in a 'still' case, to which Gonzalez replied, 'Oh yes. It was at some level. I don't recall whether it was at the trial or appellate level.' Again there was no indication of any conflict of interest.
Bland's counsel subject Dyal to a lengthy and searching cross-examination. After other counsel had concluded their cross, the court asked Gonzalez if he had any questions, to which he responded, 'Not at this time,' although he later requested that Dyal be kept in attendance.
On Tuesday afternoon, January 23, 1973, Bland's counsel announced at a bench conference that he planned on calling Gonzalez, who had represented Dyal, as his witness. This evoked no response from Watson that there was a conflict of interest in Gonzalez' representation of Dyal and Watson.
Finally, on Thursday morning, January 25, 1973, six days after Dyal's testimony, a motion for mistrial and severance was filed by another attorney in behalf of Watson, alleging inter alia: 'That there are areas of cross-examination of the witness Dyal which are vital to the defendant Watson's defense which his trial counsel, Henry Gonzalez, Esquire, has not been able to and cannot afford him.' This was followed by a written proffer of the evidence that Dyal, Watson and Gonzalez would give in support of the motion. The district court found that the motion was insufficient and denied it.
Our review of the record, the motion and the proffer convinces us that Watson was not denied effective representation because of Gonzalez' previously concluded representation of Dyal. First, it seems passing strange that although Gonzalez previously represented Parker and Stanley Cochran in connection with state criminal proceedings arising out of the events of this very case, his ability to cross-examine these witnesses was not alleged to be impaired. Secondly, no objection or motion was made by Gonzalez during or after the conclusion of Dyal's testimony. It was four witnesses and six days later that the motion for mistrial was filed. We are persuaded that this tactic was a belated afterthought. Finally, we have found nothing in the record or briefs which would indicate, or even suggest, that Gonzalez' concluded representation of Dyal precluded any relevant line of inquiry he might have pursued which was not already exhausted by the examination conducted by other counsel. Not once has it been made to appear what areas of cross-examination of Dyal, Gonzalez was not able to and did not afford his client, Watson.
When I interviewed Mr. Letizia along with Special Agent Clifford Munger, Mr. Letizia told me that as he went out the door and he realized that he had been taken, that he yelled, 'I've been robbed. Get that license number.'-- he immediately turned around, went back in-- he said he got the license number, went back into the clerk, asked for a pen, got the pen, wrote the number down. At this time the other individual who was with him had also taken the number down. That he came in, this individual supplied this number, they checked the numbers, and as my interview shows, they agreed. Both agreed that this was the license number that they saw leave. (Tr. C-1145).
They both agreed, and they both had the same number written down. From my understanding of my interview with Mr. Letizia, both of them had the same number written down. They checked it, and as my report shows, they agreed that this was the number that both of them saw on the 1970 Chevrolet as it left the Holiday Inn. (Tr. C-1147).

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The Wood County Sheriff's Department conducts public auction sales of foreclosed properties within Wood County. All sales are held at the front entrance to the Wood County Courthouse, 400 Market St, Wisconsin Rapids, WI 54495.
Please view the notice file for each sale's full details.
10:00 AM 240 14TH STREET NORTH WISCONSIN RAPIDS, WI 54494 ASSOCIATED BANK NA v.
10:00 AM 1511 S. MAPLE AVENUE MARSHFIELD, WI 54449 AMERICAN ADVISORS GROUP v.
10:00 AM 8257 JACKSON STREET PITTSVILLE, WI 54466 DITECH FINANCIAL LLC v.
10:00 AM 2931 9TH STREET SOUTH WISCONSIN RAPIDS WI 54494 MIDFIRST BANK v.
10:00 AM 4156 TOWN HALL ROAD VESPER, WI 54489 U.S. BANK NA v.
10:00 AM 1421 32ND STREET NORTH WISCONSIN RAPIDS, WI 54494 PAPER CITY SAVINGS ASSOCIATION v.
10:00 AM 9640 BEPPLER ROAD NEKOOSA, WI 54457 PAPER CITY SAVINGS ASSOCIATION v.
10:00 AM 1340 CHASE STREET WISCONSIN RAPIDS, WI 54495 ASSOCIATED BANK NA v.

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This year the Western KG Regional Competition was hosted by Olympus Schutzhund Club of Salt Lake. It was to say the least, fun! The hours of preparation that go into putting on a Regional competition are many. The long hours of hard work seem to pile up and then at the last minute problems and changes just happen. Problems such as losing the trial field and having to find an alternate field (within two weeks of the trial) and then not receiving a single entry until the day the entries closed! Somehow after staying up past 2 am the night before the trial getting all the paperwork compiled and ready to hand over to Ann Thomas, the trial chairperson, setting up escorts for the competitors to the training fields and countless other odds and ends, it all comes together for a weekend full of anxious, nervous handlers, their dogs, the helpers, the tracklayers, the judge and spectators. But even with all that stress and the endless supply of nerves, everyone seems to have a wonderful time. Everyone, especially the dogs all seem to enjoy themselves. This year was no exception. Although the entries were few, we had a great time and the weather cooperated completely! We were just hoping for dry weather since the last Regional Competition held in Salt Lake was miserably wet and cold! This year the sun was shining and the temps were cool the whole weekend - we couldn't have asked for better weather. We had 6 clubs represented by competitors - Anacapa Working Dog Association, Cascade Schutzhund Club, Colorado Canine Club, Greater Vancouver Dog Sport Club, Kern County TOP Dog Club and Olympus Schutzhund Club. Other clubs were represented with spectators from Salem Schutzhund Club, Summit Schutzhund Club and Centennial Schutzhund Club. I don't believe I left anyone out, but if I did, please accept my sincere apology. We were thrilled to have everyone here!
The judge for this year's event was Gottfried Dildei - this was his first trip to Utah and Olympus Schutzhund Club member Gabriel Bier, who now lives in and drove all the way from Yuma Arizona, gave Gottfried the grand tour of the beautiful Utah mountains, the historical town of Park City where the 2002 Olympic Winter Games were held and the famous Temple Square on Friday before the trial. The club trial originally scheduled for Friday was cancelled due to no entries so the two of them had all day to kill sightseeing. Gottfried had a wonderful time and I believe learned a few things about our unique state. Thank you Gabe! We were also honoured to have new apprentice DVG judge, Ted Hartman, here. Ted will soon have all the requirements for becoming a judge completed and we were happy to have him here at this event and be a part of his training. Thanks, Ted and good luck!
The Annual Western KG General membership meeting was held Friday afternoon and following the meeting Ann Thomas, Western KG Treasurer conducted the Western KG's first annual Mini Seminar. The subject of this seminar was the proper and complete preparation of trial paperwork. This subject has been an issue for quite some time according to our judges and as Ray Reid, Western KG President, said it was probably the best seminar on this subject he has ever seen. Great job, Ann!
The trophies were again designed and engraved by Olympus Schutzhund Club member Don Weaver. He has done the trophies for many a competition and each time he does them, he seems to out-do himself. This year the trophies were absolutely fantastic. Made of acrylic, black and clear, engraved with pictures of actual dogs from Olympus Schutzhund Club working in all three phases of our sport. He also incorporated a picture of the famous Mount Olympus on them. Don also designed the T-shirts and sweatshirts using the same pictures as he put on the trophies. They were definitely a hit even though the sizes we had were not exactly what we ordered. Everybody likes them extra-large, right?
The banquet was held at Mi Ranchito's, a great Mexican restaurant on Saturday night - a welcome break for the competitors and spectators to release some of the stress from the earlier competition. Olympus Schutzhund Club member Byron Winters, a bit of a practical joker, told the waiter that it was Carole's birthday. She was just sure it was Ray Reid who put them up to it. We are still chuckling about that every time we go out to eat. The food and conversation were great but the fun we had was the best of all!
Ok now, back to the trial...The helpers chosen for this year's competition were Dave Miller from Salem Schutzhund Club in Colorado and Glen Crawford from Olympus Schutzhund Club here in Utah. Dave and Glen did a fantastic job! A very special thanks must go to Western KG OfS Robert "Mac" McClellan for assigning these two guys to the positions that he did. Dave and Glen worked each dog both safely and consistently. Dave was chosen for the VPG 1's (which unfortunately there were none) and the back half VPG 3's with Glen working the VPG 2's and the front half of the VPG 3's. Thanks to both of you - as usual we all appreciate immeasurably what you do! And thank you also to Les Flores (VPG 3 tracks) and Mark Richards (VPG 2 tracks) for doing a super job of laying tracks.
The trial field was originally to be at the City Park in Riverton, but of course, that didn't work out as two weeks before the trial we were informed that we were going to have to find another location. Scrambling around town, making phone call after phone call it was decided that we would use the same park, Willow Park in Lehi that was used for the Regional Competition back in 2000. It is a very secluded and quiet area and served our purpose very well. The tracking was on a very lush and deep sod farm provided by Olympus Schutzhund Club member Mark Richards. The highest scores of the competition were scored in the tracking. The condition of the sod was nothing short of perfect - Thank you, Mark!
Now, on to the competition. We had three VPG 2 entries and 7 VPG 3's. The obedience and protection were completed on Saturday with the tracking being done early Sunday morning. The high in obedience for the VPG 2's went to Shelley Cook and her Dutch Shepherd Ero with 72 points. Shelley and Ero did a fantastic job in all three phases - but they especially shined in tracking with a beautiful 95 point track - it was beautiful to watch. They finished with 245 points total and 2nd place! Les Flores handled Vrijheid's Aaron, a Dutch Shepherd owned by Olympus Schutzhund Club member Byron Winters. For those of us who know Aaron, we know he can be a bit "full of himself" from time to time and unfortunately he was a little too full of himself in obedience and didn't quite earn enough points to pass. His tracking however was very nice with a score of 87 points and his protection score was 82. Aaron is a very strong dog and undoubtedly one to watch in upcoming trials! First place VPG 2 went to Cheryl Weaver from Olympus Schutzhund Club with her Dutch Shepherd Vrijheid's Amigo or "Tiger" as he is known. Tiger, being Aaron's brother, was also a little "full" of himself in the obedience and barely scored the minimum 70 points to pass. He tied with his brother in protection with 82 points and scored an impressive 96 points in tracking for a total score of 248.
Now, on to the VPG 3's. The 7 entries were Robert Schneider with Bico vd Berlex-Hoeve, VPG 3 and Danny Craig with Daneskjold Unkas, VPG 3 from Kern County TOP Dog Club in California; Asheley Winters with Dana Vom Kelterhof, VPG 3, FH and Mark Richards with Diso v. Kiefernta, VPG 3 from Olympus Schutzhund Club of Salt Lake; Ann Malburg with Zac v. Joefarm, VPG 3 from Colorado Canine Club in Colorado; Patricia Barich with Sorba, VPG 3 from Anacapa Working Dog Association in California and Sunny Baik with Agare v. Schoerling VPG 3 from Greater Vancouver Dog Sport Club in Canada.
Bico vd Berlex-Hoeve, Belgian Malinois,handled by Rob Schneider, was a bit too happy in obedience and unfortunately, didn't score enough points to pass this phase. He was disqualified in the protection due to lack of control and therefore was not allowed to track on Sunday. This is a very exciting dog to watch I must say. In 6th place was Sunny Baik from Greater Vancouver Dog Sport Club with her Belgian Malinoi, Agare v. Schoerling. Now Sunny had just recently started a new job and was putting in many hours of overtime. With very little training time, these two still scored nicely with 90 points in tracking, 86 in obedience and 75 in protection - a total score of 251. Fifth place went to Ann Malburg from Colorado with her Belgian Malinois Zac v. Joefarm. They scored a 97 point track, 86 in obedience and 80 in protection for a total score of 263. The 4th place team was Olympus Schutzhund Club member Mark Richards with Diso v. Kieferntal, the only German Shepherd in this year's Competition. Diso's tracking score was a very nice 93 points. His obedience is always beautiful to watch and this performance was no exception. The wall gave him a bit of trouble but they scored 83 points in obedience and 90 points in protection for a total of 266 points. Danny Craig, also from Kern County TOP Dog Club in California took the 3rd place trophy. He and his Belgian Malinois Daneskjold Unkas scored 268 points -- 96 tracking, 80 obedience and 92 protection. Second place also from California but from Anacapa Working Dog Association, was Patricia Barich with her Malinois Sorba. They scored a very impressive, near perfect 98 point track which also took the High Tracking trophy, 90 obedience and 85 in protection. The first place trophy went to a newcomer to DVG, Asheley Winters. Asheley received her DVG membership literally 2 days before the trial! She and her Dutch Shepherd Dana vom Kelterhof not only took 1st place, but took the High in Protection with a score of 92 and High in Obedience with a score of 90. Their tracking score of 96 brought the total of this top scoring team to 278.
Congratulations to Asheley and Dana - we hope to see you on the trial field at the DVG National Championships representing our Western KG. Congratulations to all the competitors! You all did a fantastic job.

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Opinion filed January 18, 1950.
APPEAL from the County Court of Greene County; the Hon. JULIAN HUTCHENS, Judge, presiding.
GILBERT K. HUTCHENS, of Carrollton, and NORBERT L. HUTCHENS, of Winchester, (JACK A. ALFELD, of Carrollton, and RICHARD E. MANN, of Winchester, of counsel,) for appellants.
IVAN A. ELLIOTT, Attorney General, of Springfield, and L.A. MEHRHOFF, State's Attorney, of Carrollton, (HARRY L. PATE, of Tuscola, of counsel,) for the People.
Defendants, the parents of a girl seven years of age, were convicted by the county court of Greene County for violating the compulsory school attendance law. (Ill. Rev. Stat. 1947, chap, 122, par. 26-1.) They appeal directly to this court, contending (1) that the evidence is insufficient to sustain the conviction and (2) that the statute is unconstitutional.
Appellants are Seventh Day Adventists in religion, believing that the child should not be educated in competition with other children because it produces a pugnacious character, that the necessary atmosphere of faith in the Bible cannot be obtained in the public school, and that for the first eight or ten years of a child's life the field or garden is the best schoolroom, the mother the best teacher, and nature the best lesson book.
The father is a college graduate and a minister in his religion. The mother has had two years of college and some training in pedagogy and educational psychology. The evidence consists solely of a stipulation providing, inter alia, that the child would be in the third grade if she went to the public school; that under the direction of a Seventh Day Adventist institution the mother has been teaching her third-grade work at home for five hours per day and in addition teaches her vocal music; that the child has regular hours for study and recitation; and that she shows proficiency comparable with average third-grade students. The subjects thus being taught and the textbooks from which the instruction is given are set forth in detail. Further provisions recite that appellants refuse to send their child to the public school, and that "she does not attend and has not attended a parochial or private school."
The statute in question requires that "Whoever has custody or control of any child between the ages of seven and sixteen years shall cause such child to attend some public school in the district wherein the child resides * * *." Provisions are then added exempting "Any child attending a private or parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, * * *." Other provisions, not material here, make exceptions in cases of physical or mental disability, temporary absences for cause, and children over fourteen years of age who are necessarily employed.
Appellants contend the State has failed to prove the child was not attending a "private school" within the intention of the legislature. They argue that a school, in the ordinary meaning of the word, is a place where instruction is imparted to the young, that the number of persons being taught does not determine whether the place is a school, and that by receiving instruction in her home in the manner shown by the evidence the child was attending a private school. We agree with this construction of the statute. Compulsory education laws are enacted to enforce the natural obligation of parents to provide an education for their young, an obligation which corresponds to the parents' right of control over the child. ( Meyer v. Nebraska, 262 U.S. 390, 400.) The object is that all children shall be educated, not that they shall be educated in any particular manner or place. (See Commonwealth v. Roberts, 159 Mass. 372, 34 N.E. 402.) Here, the child is being taught third-grade subjects, has regular hours for study and recitation, and shows a proficiency comparable with average third-grade students. There is nothing in the record to indicate her education is in any way being neglected. We think the term "private school," when read in the light of the manifest object to be attained, includes the place and nature of the instruction given to this child. The law is not made to punish those who provide their children with instruction equal or superior to that obtainable in the public schools. It is made for the parent who fails or refuses to properly educate his child.
Although the language of the present act has not previously been construed by this court, the scope of similar statutes has been considered by courts of other jurisdictions. In State v. Peterman, 32 Ind. App. 665, 70 N.E. 550, the father of a child being taught in the private home of the teacher was prosecuted for violation of a law requiring children to be sent "to a public, private or parochial school." The child attended the teacher's home regularly and was taught all the branches taught in the public schools. The teacher did not advertise herself as keeping a private school, had no regular tuition fixed, and did not have, or desire to have, any pupils other than the defendant's child. The sole question was whether the child was being sent to a private school, within the meaning of the statute. In holding that the parent had complied with the law the court observed: "If a parent employs and brings into his residence a teacher for the purpose of instructing his child or children, and such instruction is given as the law contemplates, the meaning and spirit of the law have been fully complied with. This would be the school of the child or children so educated, and would be as much a private school as if advertised and conducted as such. We do not think that the number of persons, whether one or many, make a place where instruction is imparted any less or more a school." (See, also, Wright v. State, 21 Okla. Cr. 430, 209 P. 179.) Such construction of the words "private school" is in accord with the policy of the Illinois statute.
In concluding that appellants have not been proved guilty of violating the statute we do not imply that parents may, under a pretext of instruction by a private tutor or by the parents themselves, evade their responsibility to educate their children. Those who prefer this method as a substitute for attendance at the public school have the burden of showing that they have in good faith provided an adequate course of instruction in the prescribed branches of learning. This burden is not satisfied if the evidence fails to show a type of instruction and discipline having the required quality and character. No parent can be said to have a right to deprive his child of educational advantages at least commensurate with the standards prescribed for the public schools, and any failure to provide such benefits is a matter of great concern to the courts.
The People maintain that under the stipulation appellants admitted their child "does not attend and has not attended a parochial or private school," and are therefore precluded from arguing that she attended a private school by receiving instruction in the home. This contention cannot be sustained. While stipulations of fact are always proper and binding upon the parties, a stipulation as to the legal conclusions arising from facts is inoperative. The court cannot be controlled by agreement of counsel on a related question of law. It is the province of the court to determine what the legislature meant by the term "private school." Indeed, the question whether the child attends such a school within the meaning of the statute is the very issue in the case. If we accept the conclusions contained in the stipulation then there is no question at all in the case as to whether appellants violated the statute. The parties themselves would have already determined that issue. In so far as the stipulation set forth facts as to the place and source of instruction and its nature and extent, it is, of course, binding upon the parties. But the legal effect of those facts in showing attendance at a private school within the contemplation of the legislature is a question of law for the decision of courts. Such matters cannot be affected by stipulation of the parties. National Bank of Colchester v. Murphy, 384 Ill. 61.
As we have concluded that appellants' conviction cannot be sustained upon the evidence, it becomes unnecessary to consider the further contention that the statute violates the constitutional right of parents to direct the education of their child.
I cannot agree with the majority opinion. To hold that the appellants were conducting a private school for the instruction of their daughter in a manner which does not violate the applicable statute, may be construed by many parents as a license to keep their children at home instead of sending them to school. This will do violence to the letter and spirit of the law. True, the opinion says in substance that parents may not, under a pretext of instruction by a private tutor or by themselves, evade their responsibility to educate their children. But each case will necessarily depend upon its own peculiar facts. The school law will be no guide or rule to be followed. Who will be the judge of the facts? What will be the position of the truant officer when he is told by parents that their child is receiving proper instruction at home?
If the compulsory attendance school law is not enforced, may not parents withdraw their children from school at any time desired, even in the middle of a term or semester so as to teach them at home? Thereafter, should they change their minds, could they not again, under the law, return their children to the same school? Schools may thereby be disrupted and certainly will lose the power, prestige and jurisdiction which is now theirs. In my opinion the appellants were properly found guilty, even though it be conceded that they are qualified instructors. We should not permit so salutory a statute to be thwarted by the whim and caprice of the many who, I fear, will take advantage of the situation under authority of this case.
Under a statute similar to the one under consideration and under like facts, parents were convicted in the State of Washington for failure to comply with the statute. In an opinion upholding the conviction the court said in part: "We have no doubt many parents are capable of instructing their own children, but to permit such parents to withdraw their children from the public schools, without permission from the superintendent of schools, and to instruct them at home, would be to disrupt our common school system, and destroy its value to the state * * *. We do not think that the giving of instruction by a parent to a child, conceding the competency of the parent to fully instruct the child in all that is taught in the public schools, is within the meaning of the law `to attend a private school.' Such a requirement means more than home instruction." ( State of Washington v. F.B. Connort, 69 Wn. 361, 124, p. 910.) This case seems to me to be more in point and to be sounder and better law than the authority cited in the main opinion.


text:
New Jersey Catholic Journal, v. II, no.2, December 10, 1887.
New Jersey Catholic Journal, v. II, no.3, December 17, 1887.
New Jersey Catholic Journal, v. II, no.4, December 24, 1887.
New Jersey Catholic Journal, v. II, no. 15, March 10, 1888.
New Jersey Catholic Journal, v. II, no. 18, March 31, 1888.
New Jersey Catholic Journal, v. II, no. 20, April 14, 1888.
New Jersey Catholic Journal, v. II, no. 25, May 19, 1888.
New Jersey Catholic Journal, v. II, no. 27, June 2, 1888.
New Jersey Catholic Journal, v. II, no. 28, June 9, 1888.
New Jersey Catholic Journal, v. II, no. 29, June 16, 1888.
New Jersey Catholic Journal, v. II, no. 30, June 23, 1888.
New Jersey Catholic Journal, v. II, no. 31, June 30, 1888.
New Jersey Catholic Journal, v. II, no. 32, July 7, 1888.
New Jersey Catholic Journal, v. II, no. 33, July 14, 1888.
New Jersey Catholic Journal, v. II, no. 34, July 21, 1888.
New Jersey Catholic Journal, v. II, no. 35, July 28, 1888.
New Jersey Catholic Journal, v. II, no. 36, August 4, 1888.
New Jersey Catholic Journal, v. II, no. 37, August 11, 1888.
New Jersey Catholic Journal, v. II, no. 38, August 18, 1888.

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This is an action filed by the Plaintiff, Capital One, N.A. ("Capital One"), seeking an order that the final judgment in the sum of $267,760.78 in its favor entered by the Circuit Court for Frederick County, Maryland, in Case No.: 10-C-1-003011 be excepted from the discharge of the Debtor, Kelly Lee Maxsell ("Debtor" or "Defendant"), under 11 U.S.C. § 523(a)(6).
This case involves a residential refinance loan dated August 16, 2005, made by the Plaintiff's predecessor, Chevy Chase Bank, F.S.B., that was to be secured by a Deed of Trust for a residence. The Note was executed by the Debtor and her spouse, whose death on May 24, 2009, left her the sole owner of the house. Payments were made as required by the Note until the Spring of 2011, when the Debtor defaulted. In the process of its pre-foreclosure title search, the Plaintiff discovered that the Deed of Trust executed in connection with the loan had not been recorded and sought the Debtor's cooperation to accomplish the recording. Various letters were sent to her commencing on March 29, 2011, advising of this fact and of her obligations under an Error and Omissions Compliance Agreement to cure the deficiency. Meanwhile, on April 18, 2011, the Debtor entered into a Residential Contract of Sale for the property for the sum of $420,000.00. Settlement occurred on June 6, 2011. After the payment of settlement charges, sales commissions and two secured obligations to MidAtlantic Farm Credit, ACA, both made after the Chevy Chase Bank, F.S.B. loan, the Debtor received the balance of the sales proceeds of $208,680.35. Capital One received nothing.
One of the central aims of our bankruptcy system is to give honest debtors a "fresh start" by relieving them of debts incurred prior to filing for bankruptcy relief. In re Scott, 172 F.3d 959, 966 (7th Cir.1999) citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). It is important to recognize, however, that a discharge in bankruptcy is a privilege, not a right and should only inure to the benefit of the honest debtor. In re Juzwiak, 89 F.3d at 427. Accordingly, the privilege of discharge is necessarily dependent on a true presentation of the debtor's financial affairs. In re Scott, 172 F.3d at 969.
In other words, 11 U.S.C. § 727(a)(3) requires as a precondition to discharge that the debtor produce records which provide creditors "with enough information to ascertain the debtor's financial condition and track his financial dealings with substantial completeness and accuracy for a reasonable period past to present." In re Juzwiak, 89 F.3d at 427.
Because courts and creditors should not be forced to undertake an independent investigation of the debtor's affairs, speculate as to the financial history or condition of the debtor, or sift through documents in order to attempt to reconstruct the flow of the debtor's assets, they have a right to be supplied with dependable information on which they can rely in tracing a debtor's financial history. Id. at 429. Therefore, the debtor's duty under 11 U.S.C. § 727(a)(3) does not merely require that the debtor turn over any records he has. In re Scott, 172 F.3d at 969. Rather, this language places an affirmative duty on the debtor to create books and records which accurately document the debtor's business affairs. Id. "In the absence of § 727(a)(3), debtors without proper books and records could obtain a discharge while frustrating the trustee's ability to liquidate pre-petition assets to satisfy pre-petition debts." Id.
The Debtor's explanation of her failure to keep records and her financial transactions is unworthy of belief and this finding goes as well to most of the rest of her testimony. The Debtor would have the court believe that she went through over $200,000.00 in slightly over a year and a half, unable to produce a single record of these transactions. Discharge is a privilege, "dependent on a true [and complete] presentation of the debtor's financial affairs." In re Cox, 904 F.2d 1399, 1401 (CA9 1990) quoting In re Underhill, 82 F.2d 258, 260 (CA2 1936). At a minimum, a debtor must maintain and preserve adequate records that make it possible to ascertain her financial affairs and material business transactions. In re Caneva, 550 F.3d 755, 761-62 (CA9 2008). This debtor failed miserably in fulfilling this requirement. She is employed as a Loan Specialist at Wells Fargo Bank and not the financial babe in the woods she paints herself to be. The circumstances of this case do not justify her failure to maintain records.
The court observes that in her Chapter 7 case the Debtor scheduled one secured claim for a car loan and scheduled three unsecured claims - Capital One ($247,201.00), Key Bank ($21,891.00) and Kohl's department store ($85.00). The debt owed to Key Bank is said to be from March 1, 2000 and "charged off account." Clearly, the Chapter 7 case was filed to deal Capital One's claim as the debt to Key Bank is old and barred by the statute of limitations.
Section 523(a)(6) of the Bankruptcy Code exempts from discharge any debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6) (emphasis added). An injury is malicious "if it was wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill-will." Printy v. Dean Witter Reynolds, Inc., 110 F.3d 853, 859 (1st Cir.1997) (quoting 4 COLLIER ON BANKRUPTCY ¶ 523.12 (15th ed.1996)). The injury must have been committed in "conscious disregard of one's duties." Id. Willfulness requires "a showing of intent to injure or at least of intent to do an act which the debtor is substantially certain will lead to the injury in question." In re Neronha, 344 B.R. 229, 231 (Bankr.D.Mass.2006).
The record abundantly supports the bankruptcy court's determination that Levasseur's "objectively wrongful" actions, "committed in conscious disregard of her duty not to deceive," Levasseur, 482 B.R. at 32, were malicious. Likewise, the willfulness requirement was satisfied by Levasseur's deliberate use of a false pretense - that the Home Equity Line was and should still have been available to her following the Rowley Property sale - to obtain $124,200 from Bank of America.
Further, our decision in Printy supports this result. The debtor in Printy took advantage of a stock brokerage's computer error, which incorrectly credited his account an extra $3.5 million, by withdrawing and borrowing against funds that the debtor knew he did not own. 110 F.3d at 859-60. So too here: Levasseur took full advantage of Bank of America's error in failing to close her Home Equity Account when she sold the Rowley property and gave the Bank no notice of the sale. The bankruptcy court was correct to find the debt to be non-dischargeable, and we affirm on those grounds. We need not reach the other grounds for non-dischargeability under § 523(a).
After being told that the Deed of Trust had not been recorded, the Debtor ignored her obligation under the Errors and Omissions Agreement and deliberately set about to appropriate the equity in the subject property. She accomplished this by selling the subject property and pocketing the proceeds. The deliberate nature of this act is apparent from her testimony at trial. She stated that she placed the letters from Mid-Atlantic Title Consultants, LLC (Plaintiff Ex. 8), a firm employed by the title company to correct the error, in the hands of the realtor, Kenneth A. Grant, employed by her to sell the property. She testified that Mr. Grant said he would take care of it, and that she relied entirely upon him. The inference the Debtor would like the court to make is that she was unaware of the consequences of the recording failure and that she had no intent to harm the holder of the refinancing note, as Mr. Grant was in charge of ironing things out. However, when called as a witness on her behalf, Mr. Grant testified that he was not familiar with the letters before they were presented to him for examination at the trial. This leads the court to conclude that she knew that by selling the property and pocketing the proceeds, she could deprive Capital One of its right to the money. This was done on purpose and not by accident.
Section 523(a)(6) of the Bankruptcy Code excepts from discharge any debt for "willful and malicious injury by the debtor to another entity or to the property of another entity." In the context of 11 U.S.C. § 523(a)(6), "willful" means "deliberate or intentional." Kawaauhau v. Geiger, 523 U.S. 57, 61 n.3 (1998); see also St. Paul Fire & Marine Ins. Co. v. Vaughn, 779 F.2d 1003, 1009 (CA4 1985). Malice does not require a showing of ill will, merely an intent to harm; it is an injurious act done deliberately and intentionally in knowing disregard of the rights of another. Here, the Debtor knew the consequences to the creditor of her act in selling the property, and that it was certain to cause harm. As in the case of In re Garcia, 442 B.R. 848, 851-52 (B.C. M.D. Fla. 2011), relied upon by the Plaintiff, the Debtor knew what was required of her and knew the harm caused to Capital One by her sale; yet, she proceeded.
The Plaintiff has carried its burden of proving by a preponderance of the evidence standard set out in Grogan v. Garner, 498 U.S. 279, 291 (1991) that its claim against the Debtor should not be discharges; however, the court will limit the judgment to the amount of money received by the Debtor at settlement.


On the feast of the Annunciation, Pope Francis signed his most recent Apostolic Exhortation, Christus Vivit, a document addressed to young people and to the entire people of God. It is a response to the recent Synod on Young People, the Faith, and Vocational Discernment. The pope explains that he let himself “be inspired by the wealth of reflections and conversations that emerged from last year’s Synod,” (Christus Vivit, §4) and provides a summary of these proposals, but also offers a continuation of his vision for the kerygmatic evangelization of the Church that he provides in his previous exhortations.
Particularly interesting is the title of this exhortation. While in previous exhortations Pope Francis has used the theme of joy as his starting place, in this letter, he gives the reason for our joy: “Christ is alive!” (CV, §1). With this title, he exemplifies his call for kerygmatic evangelization contained in the previous documents. The title of the document, Christus Vivit, highlights Pope Francis’s desire to have a Christocentric focus with his audience. Throughout the exhortation, he constantly invites the young to an encounter and friendship with Jesus. As the Holy Father pastorally states, “No matter how much you live the experiences of these years of your youth, you will never know their deepest and fullest meaning unless you encounter each day your best friend, the friend who is Jesus” (CV, §150).
Pope Francis’s artful use of Scripture throughout Christus Vivit provides a model of kerygmatic proclamation. In a similar fashion to the Catechism, and following the kerygmatic model, the Holy Father weaves quotations from Scripture seamlessly into his counsel. These quotations allow the gospel to speak for itself and serve as the message that he desires to share with his audience. They are not a prooftext of his argument; rather they serve to accentuate the beauty of the Word of God and its enduring application to the youth of this generation.
The inexhaustible spiritual riches preserved by the Church in the witness of her saints and the teaching of the great spiritual masters . . . we cannot fail to invite young people to drink from these wellsprings of new life. We have no right to deprive them of this great good.
Therefore, throughout the document he brings up the examples of Saint Sebastian, Saint Joan of Arc, and Saint Therese of the Child Jesus to encourage an encounter with Christ (CV, §229). By evoking examples from salvation history, including the lives of saints, Pope Francis is employing the kerygmatic model, which reclaims the wealth of the Christian tradition to illustrate the Good News that he is proclaiming.
Pope Francis uses Chapter 4 of Christus Vivit as an opportunity to offer his own proclamation of the kerygma to young people in an exposition of “three great truths”: “God loves you; Christ is your Savior; he is alive” (CV, §130). In this central chapter, the Holy Father provides a model for “incarnating the kerygma in the language of today’s youth” (CV, §211). When describing God’s love for each person, he quotes a homily from World Youth Day in Krakow, where he said, “Trust the memory of God: his memory is not a ‘hard disk’ that ‘saves’ and ‘archives’ all our data. His memory is a heart filled with tender compassion, one that finds joy in ‘deleting’ from us every trace of evil” (CV, §115). Here he uses the language of technology to describe God’s love to digital natives and takes a concept understood by his audience to the deeper and more profound level of the gospel.
In describing the salvation Jesus offers, he points to the beauty of the Christian message, “How valuable must you be, if you were redeemed by the precious blood of Christ! Dear young people, ‘You are priceless! You are not up for sale!’” (CV, §122). He then provides concrete imagery to captivate the minds of young people, “Keep your eyes fixed on the outstretched arms of Christ crucified” (CV, §123). By presenting this image he aims at, “An approach to reality that privileges images over listening and reading,” because it best influences, “the way people learn and the development of their critical sense” (CV, §86).
However, the central emphasis of the document is also reflected in its title, “Christ is alive!” (CV, §124). The pope presents with joy the central truth of the Christian faith: Jesus Christ is risen from the dead and offers us eternal life. True to the kerygma proclamation, Pope Francis states, “Every other solution will prove inadequate and temporary . . . with Jesus, on the other hand, our hearts experience a security that is firmly rooted and enduring” (CV, §128). The encounter and relationship with the risen Lord also becomes the sustaining force of the entire Christian life and the starting point of evangelization. Here, he again relies upon a favorite quotation from his predecessor Pope Benedict XVI, “Being a Christian is not the result of an ethical choice or a lofty idea, but the encounter with an event, a person, which gives life a new horizon and a decisive direction” (CV, §129; cf. Deus Caritas Est, §1). This theme of encounter with the risen Lord repeats itself throughout the remainder of this Exhortation.
He closes this chapter with a reflection on the Holy Spirit, who helps us experience the message of the kerygma and live it more fully. With the prompting of the Holy Spirit, we can fall in love with God and this relationship will affect literally everything. “It will decide what will get you out of bed in the morning . . . what you read, whom you know . . . and what amazes you with joy and gratitude” (CV, §132). With the guidance of the Holy Spirit, we can respond fully to the proclamation of the kerygma and then “can approach everything in life with passion” (Ibid.).
We need to use above all the language of closeness, the language of generous, relational and existential love that touches the heart, impacts life, and awakes hope and desires. Young people need to be approached with the grammar of love, not by being preached at (CV, §211).
For the pope, the kerygmatic proclamation is an apologetics of love, an appeal to the beautiful, and an invitation to a relationship with Jesus Christ.
Rather than being too concerned with communicating a great deal of doctrine, let us first try to awaken and consolidate the great experiences that sustain the Christian life. In the words of Romano Guardini, “when we experience a great love . . . everything else becomes a part of it” (CV, §212).
Therefore, our goal in this process of growth is to proclaim and embody the kerygma to provide powerful experiences of God that touch the heart, leading to an experience of encounter with God, and the growth of authentic community life.
This was something I emphasized in Evangelii Gaudium, and I consider it worth repeating here. It would be a serious mistake to think that in youth ministry “the kerygma should give way to a supposedly more ‘solid’ formation . . . All Christian formation consists of entering more deeply into the kerygma” and incarnating it ever more fully in our lives. Consequently, youth ministry should always include occasions for renewing and deepening our personal experience of the love of God and the living Christ (CV, §214; cf. Evangelii Gaudium, §165).
This is not the first time that Francis has returned to this quotation. In Amoris Laetitia, he stated that the kerygma should resound in and among families (cf. Amoris Laetitia, §58) and that a “renewed proclamation of the kerygma” should be given in marriage preparation (AL, §207). Pope Francis sees the kerygma as the “joyful experience of encounter with the Lord” (CV, §214) that must be the foundation and “center of all evangelizing activity and all efforts at Church renewal” (EG, §164). In other words, if the Church is to grow, the kerygma must be at the center of our words and our activities.
The pope has made it abundantly clear that the kerygma must be present throughout our activity as Church, even as part of our missionary outreach at schools and universities. Echoing his statements in Veritas Gaudium where he urges, “The most urgent and enduring criterion is that of contemplation and the presentation of a spiritual, intellectual and existential introduction to the heart of the kerygma, namely the ever fresh and attractive good news of the Gospel of Jesus Christ” (Veritas Gaudium, §4), Pope Francis argues in Christus Vivit that we need “a fresh experience of the kerygma” with the “ability to integrate the knowledge of head, heart, and hands” (§222).
Throughout Christus Vivit, Pope Francis not only extols the use of the kerygma in the Church’s ministry to young people, but also demonstrates and models what he preaches. This practice, as we have demonstrated throughout, is not new to this Apostolic Exhortations. However, while the pope has been consistent throughout his writings, including even his tweets, in employing the kerygmatic model, Christus Vivit encourages pastoral ministers to engage young people through the proclamation of the Good News more explicitly. In Pope Francis’s mind, we must give people the reason for their hope and for remaining Catholic over the noise of the world. To demonstrate this aim he uses the example of Orpheus and makes it clear that we must intone “an even more beautiful melody” than the mythological figure (CV, §223).
This more beautiful melody is the kerygmatic proclamation of Christ crucified and risen.
Featured Image: Mantegna, Christ Resurrected, c. 1459; Source: Wikimedia Commons, PD-Old-100.
Vincent J. Reilly is the Director of Faith Formation at St. Catherine Catholic Church in Orange Park, Florida, where he leads several Kerygma Evangelization Retreats each year.