text:
Mr. Charles G. Gardner, of Springfield, Mass., for Korbly, receiver.
These two cases are appeals from the Circuit Court of Appeals for the First Circuit, which were heard and will be decided together.
The Pynchon National Bank of Springfield, Mass., with a capital stock of $200,000, divided into 2,000 shares of $100 each, became insolvent and in June, 1901, the Comptroller of the Currency appointed a receiver to liquidate its affairs.
Upon examination there were found among its assets bonds of the American Writing Paper Company, of the par value of $577,000, which the bank had purchased at a discount, but which, at the time of the transaction we are about to consider, had so depreciated that they were worth on the market only 65 cents on the dollar.
A consideration of the condition of the bank resulted on March 18, 1902, in an assessment by the Comptroller on the shareholders of their full statutory liability of 100 per cent., payable on the 15th day of the following May.
Thereupon a plan was devised under which it was proposed that all of the shareholders, except the three defendant savings banks, should purchase from the receiver the paper company bonds at 95 cents on the dollar, each shareholder to purchase one bond of $1,000 for every three shares of stock owned by him. This purchase price was an advance over the market price of 30 cents on the dollar and the excess payment by each shareholder would equal 82 per cent. of the assessment which had been made by the Comptroller. Because they lacked corporate power to invest in such bonds the savings banks with the approval of the Comptroller and shareholders were to pay to the receiver the required advance over the market price without purchasing their quota of the bonds.
The Comptroller cordially approved of this proposed purchase, and in a letter to the board of directors of the [245 U.S. 330, 332] insolvent bank, the contents of which were intended to be and were communicated to its shareholders while the plan was under consideration, he stated that it would result in a settlement of the affairs of the bank highly satisfactory for all interests concerned, and that he was satisfied that if such sale of the bonds were made the receiver would be able to promptly pay all of the creditors in full, but that if the plan failed and it became necessary to sell the bonds on the market there would be no escape from an assessment of 100 per cent. against the shareholders.
This proposed settlement was approved by all of the shareholders, and the defendant banks made payment to the receiver as follows: The Springfield Institution for Savings, $30,360.17; the Springfield Five Cents Savings Bank, $9,820; and the Hampden Savings Bank, $5,319.16. For these payments the banks did not receive any consideration other than the joining of the other shareholders in the plan, together with the anticipated saving of 18 per cent. of the assessment which the Comptroller had made against them. The bonds allotted the banks were sold at the market price.
The results anticipated from this action on the part of the shareholders were not realized, and in order to satisfy the still unpaid debts of the bank and interest and costs of administration, the Comptroller on December 28, 1906, [245 U.S. 330, 333] made a second assessment of $49 on each share of stock. The banks refusing to pay this second assessment, this suit was instituted against them in the District Court, and resulted in a holding in favor of the defendants, which was affirmed by the Circuit Court of Appeals in the decision which is now under review.
It will be necessary to consider but two questions, viz.: (1) Was the second assessment invalid because the Comptroller did not withdraw and had no legal authority to withdraw the first assessment? and (2) was it the understanding that the payments made by the savings banks should be applied on the assessment for their statutory liability, so that they remained liable for only 18 per cent. additional?
From the earliest days of the administration of the National Banking Act to this case attempts have been made in many forms to give to it a technical construction which would so restrict the powers of the Comptroller as to greatly delay and impede the settlement of the affairs of insolvent banks. But this court has uniformly declined to narrow the act by construction and has placed a liberal interpretation upon its provisions to promote its plain purpose of expeditiously and justly winding up the affairs and paying the debts of such unfortunate institutions. Studebaker v. Perry, 184 U.S. 258 , 22 Sup. Ct. 463; Kennedy v. Gibson, 8 Wall. 498; United States v. Knox, 102 U.S. 422 ; Bushnell v. Leland, 164 U.S. 684 , 17 Sup. Ct. 209; and Bowden v. Johnson, 107 U.S. 251 , 2 Sup. Ct. 246. There is nothing in the act to prevent the Comptroller from withdrawing an assessment before it is paid, or when it is partly paid, if it should be concluded that further payment is not necessary, and no form is prescribed in which such action shall be taken by him. A large executive discretion is given to the Comptroller in this respect to adjust the assessments made to the exigencies of each case, so that the shareholders may not be burdened by paying more than is necessary or at a time when the [245 U.S. 330, 334] money for any reason cannot be advantageously used. The wisdom of giving such large discretion to the Comptroller finds excellent illustration in the case before us. All persons interested in this bond transaction were convinced in July, 1902, that further payment than that which had been made would not be needed, and a construction should not be given to the act, its specific terms not requiring it, which would prevent such action as was taken by the Comptroller in withdrawing for the time being the unpaid portion of the first assessment. We conclude that the claim that the Comptroller did not have power to recall the first assessment in whole or in part is unsound in principle and wholly unsupported by the terms of the act or by court decisions.
The remaining question is: Was it the understanding that the payments to the receiver should be applied upon the statutory liability of the savings banks for which assessment, then in full force, had been made-by the Comptroller?
It is argued for the receiver that if it had been understood or intended that the payments by the banks should be credited on the outstanding assessment this would very certainly have found written expression, if not elsewhere, in the receipts given and received for the payments.
It is notable that, although this bond purchase involved more than half a million dollars, the terms and purposes of it were not expressed in any writing, either between the shareholders themselves or between the receiver and the shareholders, which indicates that the transaction, while large, seemed simple to the men of affairs engaged in it, and that to their minds, at least, the implication from the payments to be made could not be doubtful. The shareholders who purchased the bonds had the prospect- how valuable it was the record does not indicate, but still a prospect-of recouping their losses through a later increase in the market value of the bonds, but the savings banks had no such prospect, because, not having legal authority to make such purchase, their payment of what equaled 82 per cent. of the assessment against them was a naked payment, without chance of reimbursement, in whole or in part, from any source.
The evidence introduced in addition to the stipulation of facts is slight, consisting of contemporaneous entries in the corporation record and account books of the banks, and the indorsement on the checks by which payment was made. This evidence is not conclusive, but the implications from it, such as they are, are favorable to the contention of the banks.
Since no clearly definite expression is found in the record either that these payments were or were not to be applied on the shareholding liability of the savings banks, we are [245 U.S. 330, 336] required to decide which contention of the parties is the more reasonable and probable, having regard to all the facts and circumstances, stipulated and proved in the case.
There being no evidence to the contrary, we must adopt the assumption of ordinary life and of law that the trustees for the savings banks acted lawfully, within the limits of their powers, and we must also have regard to the long-settled rule of law that where neither the debtor nor the creditor has applied payments before controversy has arisen, the courts will make application of them in a manner to accomplish the ends of justice. United States v. Kirkpatrick, 9 Wheat. 720; National Bank v. Mechanics' Bank, 94 U.S. 437 , 439. When to this we add that natural justice, as distinguished from a technical conclusion, requires that the savings banks be allowed credit for the payments that they have made, since thereby the creditors of the insolvent bank may get the benefit of the full statutory liability of the shareholders without a new and unanticipated obligation being imposed on the stockholding banks, we are compelled to resolve any doubt in which the record might otherwise leave us in favor of the defendants. It is impossible for us to conclude that the officials of these savings banks, trustees as they were for their depositors and stockholders, and having in mind the limitations on their powers, as the stipulation declares that they and the receiver did have, should have made these considerable payments in such a manner as not to at all diminish the statutory liability of their banks, especially since payments not made to be applied on the assessment would be substantially unauthorized gifts, for, as we have said, the banks had no prospect, as the other stockholders had, of being reimbursed for such payments by the possible rise in the market value of the bonds.
It results that the decree of the Circuit Court of Appeals must be affirmed, but not on the ground stated in the opin- [245 U.S. 330, 337] ion of that court, and that the second assessment must be held void because excessive. This, however, without prejudice to the making of another assessment by the Comptroller upon the shareholding banks for the difference, if needed, between the amount paid and the amount of an assessment for the full statutory liability.

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


text:
Sakowska, Ruta et al. The Warsaw Ghetto. The 45th Anniversary of the Uprising. Photo available. np. Interpress Publishers. nd. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Salbi, Zainab. The Other Side of War. Inscribed by the author. Women's Stories of Survival & Hope. Photo available. Washington. National Geographic. 2006. Octavo. Hard cover. First edition. Illustrated in black, white and color. Inscribed by the author. Fine copy.
Salcedo, Daniel (ed). Eagleeyes. Action Photography from the Cutting Edge. The Best of the Best from the First Decade of Mach 1. (Eagle Eyes, aviation photography). Photo available. Chico. Mach 1. 1997. 224 pps. Octavo. Hardcover. Stated first edition. Illustrated in color and black & white. Beautifully produced book. Best aviation photos ever! Fine copy in fine dust jacket (in mylar).
Sales, Grover. Jazz. Inscribed by the author. America's Classical Music. Photo available. New York. Da Capo Press. 1992. Octavo. Soft cover. First edition thus. Illustrated. Inscribed by the author. Fine copy.
Salisbury, Albert. Here Rolled the Covered Wagons. Photo available. New York. Bonanza. 1977. 256 pps. 4to. Hardcover. Reprint. Illustrated. Fine copy in fine dust jacket (in mylar).
Salisbury, Albert. Two Captains West. An Historical Tour of the Lewis and Clark Trail. Photo available. New York. Bramhall House. c. 1950. 235 pps. 4to. Hardcover. Reprint. Illustrated. Fine copy in fine dust jacket (in mylar).
Salisbury, Gay. The Cruelest Miles. The Heroic Story of Dogs and Men in a Race Against an Epidemic. Photo available. New York. W.W. Norton. 2003. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Salmaggi, Cesare. 2194 Days of War. An Illustrated Chronology of the Second World War. Photo available. New York. Gallery. 1988. 4to. Hard cover. First edition thus. Illustrated. Near fine copy (very light shelf wear).
Salomon, Paule. The Magic of the Black Pearl. Tahiti. Photo available. Papeete. Tahite Perles. 1987. 4to. Hard cover. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Salt, W. Ray. The Birds of Alberta. An Account, With 313 Illustrations in Color and in Black and White of All Birds Known to Occur in Alberta. Photo available. Edmonton. Government of Alberta. 1958. Octavo. Hard cover. First edition. Illustrated in black, white and color. Fine copy in near fine (chip at spine bottom) dust jacket (in mylar).
Salter, Elizabeth. Edith Sitwell. Photo available. London. Bloomsbury. 1988. 4to. Hard cover. First edition thus. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Salter, Ken. Gold Fever. Signed by the author. San Francisco. 1851. Photo available. Berkeley. Regent Press. 2013. 321 pps. Octavo. Soft cover. Stated first edition. Illustrated. Important reference work. Signed by the author. Fine copy.
Saltzman, Cynthia. Portrait of Dr. Gachet. The Story of a Van Gogh Masterpiece. Modernism, Money, Politics, Collectors, Dealers, Taste, Greed, and Loss. Photo available. New York. Viking Press. 1998. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Salvadori, Mario. Why Buildings Stand Up. The Strength of Architecture. Photo available. New York. McGraw-Hill. 1982. Octavo. Soft cover. Reprint. Illustrated. Fine copy.
Sambito, Major William J. USMC A History of Marine Fighter Attack Squadron 312. Photo available. Washington History and Museums Division Headquarters, U.S. Marine Corps. 1978. 25 pps. 4to. Soft cover. First edition. Illustrated. Important reference work. Fine copy (small stain rear panel).
Samhaber, Ernst. Merchants Make History. How Trade has Influenced the Course of History Throughout the World. Photo available. New York. John Day. 1964. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Samish, Arthur and Bob Thomas. The Secret Boss of California. The Life and High Times of Art Samish. Photo available. New York. Crown Publishers. 1971. 192 pps. Octavo. Hardcover. First edition. Fine copy in near fine (light shelf wear) dust jacket (in mylar).
Samish, Arthur and Bob Thomas. The Secret Boss of California. The Life and High Times of Art Samish. Photo available. New York. Crown Publishers. 1971. 192 pps. Octavo. Hardcover. First edition. Fine copy in fine dust jacket (in mylar).
Samish, Arthur and Bob Thomas. The Secret Boss of California. The Life and High Times of Art Samish. Photo available. New York. Crown Publishers. 1971. 192 pps. Octavo. Hardcover. First edition. Fine copy in near fine (small closed tear, rear panel) dust jacket (in mylar).
Samish, Arthur and Bob Thomas. The Secret Boss of California. The Life and High Times of Art Samish. Photo available. New York. Crown Publishers. 1971. 192 pps. Octavo. Hardcover. First edition. Important reference work. Fine copy in fine dust jacket (in mylar).

matches:
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine


text:
For many U.S. Supreme Court watchers, it was clear that Chief Justice John Roberts dared not overturn President Obama’s Affordable Care Act (a.k.a. ACA or Obamacare), and, of course, he did not. To the contrary, Roberts left his conservative brethren behind and joined the progressive side of the High Court bench in upholding the ACA.
The Obamacare ruling, National Federation of Independent Business v. Sebelius, is a complex, and often nuanced, collection of holdings, which will be analyzed in the coming months and years as Court observers come to fully appreciate its implications. After a fast read, I find it nice that a Chief Justice of the United States actually did, in this historic instance, exactly what he said he would do during his confirmation hearings.
As knowledgeable people began looking closely at the question whether the U.S. Supreme Court would strike down Obamacare during the days leading up to the ruling, I noticed an increasingly common view emerging—namely, the view that the majority, led by the Chief Justice, would likely uphold this law.
Informed people understood that this case was a defining moment for the Roberts Court, as did the Chief Justice. Based on this ruling, if the Roberts Court had overturned this important new law, it would likely have been forever viewed as a Court controlled by conservative partisan political activists, rather than a Court where, in fact, justice could be done.
Notwithstanding the contentious and extended oral argument relating to the healthcare laws, which resulted in a widely-held belief in conservative circles that the law was going to be overruled, it was clear to many others that this would not happen. This was certainly my take, so I joined by Twitter the thinking of experienced Court watchers like Tom Goldstein of the SCOTUS Blog and Robert Reich, now a UC Berkeley professor, both of whom had it correct, as did former Solicitor General Walter Dellinger. All of these highly knowledgeable commentators explained why it was more likely that the Court’s ruling would uphold the law, than that it would strike it down.
Here’s the bottom line, in my words, rather than the others’: Chief Justice John Roberts is an intelligent man, with a good political sensibility. Given the Supreme Court’s highly activist and purely partisan rulings in Bush v. Gore (2000), and more recently in Citizens United v. FEC (2010), the fast-declining reputation of the Supreme Court was at a tipping point. One more high-profile partisan ruling, and the Court’s reputation could have been damaged beyond repair. Fortunately, however, the Chief Justice refused to tank his Court.
The U.S. Supreme Court has, of course, no way to enforce its rulings, other than with the logic and reasoning that give these holdings their moral authority. A partisan High Court will lose public support, and without public approval, this institution cannot survive as a co-equal branch of government. The Supreme Court was not designed to be another political branch; it is not a super-legislature of non-elected officials. And Chief Justice Roberts clearly understands this reality, as he made clear during his confirmation hearings.
In his prepared statement, as well as when he was being questioned before the Senate Judiciary Committee during his confirmation hearings to become chief justice, John Roberts repeatedly analogized the role of a justice to that of an umpire. This analogy would be particularly fitting for a chief justice, who is the leader of the Court.
This was a powerful statement. It was a strong declaration against judicial activism. Similar references to, and discussions of, this passive, objective decision-making—styled as neutral—were raised and addressed on some fifty different occasions during Roberts’s four days of testimony. In short, Roberts’s umpire reference was no fleeting remark. And in writing the majority opinion for the Court on the healthcare law, Chief Justice Roberts stayed true to his confirmation testimony.
Chief Justice Roberts’s confirmation testimony also foreshadowed his view of the applicability of the Commerce Clause of the Constitution to the individual mandate of the healthcare law, which was one of two principal theories that Congress and President Obama had relied upon as authority for the law. The other theory was based upon the taxing power of Congress. That taxing-power theory was the one that Chief Justice Roberts relied upon to uphold Obamacare, which was something of a surprise.
To understanding Roberts’s position on the relevant Commerce Clause jurisprudence, a brief primer may be helpful.
Constitutional scholars (recently interviewed by Bloomberg BNA) describe the Commerce Clause of the Constitution (Art. I, Sec. 8, Clause 3) and the body of law that has developed regarding the powers of Congress and the States that exist under this clause, as ebbing and flowing since the 1800s, under the Supreme Court’s ruling.
In the words of Irvine Law School Dean Erwin Chemerinsky, this law has moved from a broad “nationalist perspective” to a limiting “federalist perspective.” The Rehnquist Court returned to a federalist view, and Dean Chemerinsky pointed out that the ruling on healthcare would show “how far the pendulum is swinging.” Chief Justice Roberts’s opinion shows that the pendulum has swung to the hard right under the Commerce Clause, thus limiting Congressional power under this clause.
Yale Law Professor Akhil Reed Amar told Bloomberg BNA that the early landmark holding of McCulloch v. Maryland (1819), upholding the power of Congress to incorporate a national bank, was clear authority for Obamacare. Professor Amar, who says that there are a host of Commerce Clause rulings to provide authority for the Court to uphold the healthcare law, told Ezra Klein before the ruling, “If they decide [to overturn] this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” While Akhil Amar may not be cheering Chief Justice Roberts’s position on the Commerce Clause, the fact that Roberts relied on McCulloch v. Maryland to frame his ruling cannot be too disheartening for Amar.
Following an earlier federalist period that extended up to the New Deal era, the High Court began expanding the use of Commerce Clause powers in Wickard v. Filburn (1942), which held that Congress could restrict the wheat production of an individual farmer since his actions could potentially affect interstate commerce. By 1964, the High Court unanimously upheld the desegregation of public accommodations by the Civil Rights Act under the Commerce Clause in Heart of Atlanta Motel v. United States.
Two 5-to-4 rulings by the Rehnquist Court signaled that the conservatives on the Supreme Court were restricting Congressional power under the Commerce Clause: United States v. Lopez (1995) and United States v. Morrison (2000). In Lopez, the Court struck down as beyond the scope of the Commerce Clause the Gun-Free School Zone Act of 1990, ruling that the possession of a firearm did not have a sufficient “connection with or effect on interstate commerce.” In Morrison, the Court majority claimed that the Violence Against Women Act of 1994 did not entitle a woman who had been raped to pursue her attacker because gender-based violence was not sufficiently related to interstate commerce. Clearly, these Rehnquist Court rulings had an influence on John Roberts, a Rehnquist law clerk and admirer.
By 2005, the Rehnquist Court again took a position consistent with Wickard, in the case of Gonzales v. Raich, which held that Congress’s Controlled Substances Act could trump, and outlaw, state laws legalizing marijuana for medical uses. The Court reasoned that even homegrown marijuana might make its way into the national, albeit illegal, market, and thus that it affected the larger regulatory scheme. But Raich approvingly cited Lopez and Morrison in reaching its conclusion.
“Senator SCHUMER. . . . I want to go back to the Commerce Clause, which bothers me, as you know. Again, apart from anybody’s view, do you agree that the Congress has the power under the Commerce Clause to regulate activities that are purely local, so long as Congress finds that the activities exert a substantial economic effect on interstate commerce?
“Judge ROBERTS. If the question—and this is where the issue comes up—is whether or not as the Court has addressed it, the activities are commercial. If the activities are commercial in nature, you get to aggregate them under Wickard v. Filburn that we have talked about. You do not have to look at just that particular activity. You look at the activity in general. . . . .
“Senator SCHUMER. Do you believe Congress deserves a great, . . . that Congress deserves a great deal of deference when it decides something is commercial and has findings to that effect?
In today’s healthcare ruling, Chief Justice Roberts concludes: “The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” In short, he draws upon Lopez and Morrison to limit Congressional authority. And in doing so, he has remained consistent with his confirmation testimony.
Unlike several of Chief Justice Roberts’s colleagues on the High Court, whose confirmation testimony and their actions on the bench have proven to have virtually no relationship whatsoever, on this landmark ruling, Roberts has been good to his word. His confirmation testimony was, in retrospect, indicative of what his holding in the healthcare cases would be. There, he rejects the Commerce Clause, but, unlike some of the dissenters, he also refuses to become a conservative activist and overturn the law.
That is exactly what Chief Justice Roberts just did in the Obamacare case. Let’s hope that, throughout his tenure on the bench, he continues to be, properly and laudably, an umpire.

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


“Alternative education program” shall include, but shall not be limited to, night school, adult education or another education program designed to offer instruction to students for whom the regular program of instruction may be inappropriate.
“Destructive device” means (1) any explosive, incendiary, or poison gas, bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an explosive or incendiary charge of more than one-quarter ounce, mine, or other similar device; (2) any weapon, except a shotgun or a shotgun shell generally recognized as particularly suitable for sporting purposes, by whatever name known that will, or may be readily converted to, expel a projectile by the action of an explosive or other propellant, and that has any barrel with a bore of more than one-half inch in diameter that is homemade or was not made by a duly licensed weapon manufacturer, any fully automatic firearm, any sawed-off shotgun or sawed-off rifle as defined in Va. Code 18.2-299 or any firearm prohibited from civilian ownership by federal law; and (3) any combination of parts either designed or intended for use in converting any device into any destructive device described herein and from which a destructive device may be readily assembled. “Destructive device” shall not include any device that is not designed or redesigned for use as a weapon, or any device originally designed for use as a weapon and that is redesigned for use as a signaling, pyrotechnic, line-throwing, safety, or other similar device, nor shall it include any antique firearm as defined in subsection G of Va. Code 18.2-308.:2.
“Disruptive behavior” means a violation of school board regulations governing student conduct that interrupts or obstructs the learning environment.
“Exclusion” means a school board’s denial of school admission to a student who has been expelled or has been placed on a long-term suspension of more than thirty calendar days by another school board or a private school, either in Virginia or another state, or for whom admission has been withdrawn by a private school in Virginia or another state.
“Expulsion” means any disciplinary action imposed by a school board or a committee thereof, as provided in school board policy, whereby a student is not permitted to attend school within the school division and is ineligible for readmission for 365 calendar days after the date of the expulsion.
“Firearm” means any weapon prohibited on school property or at a school-sponsored activity pursuant to Va. Code § 18.2-308.1, or (1) any weapon, including a starter gun, that will, or is designed or may readily be converted to, expel single or multiple projectiles by the action of an explosion of a combustible material; (2) the frame or receiver of any such weapon; (3) any unloaded firearm in a closed container. “Firearm” does not include any pneumatic gun as defined in this Policy.
“Long-term suspension” means any disciplinary action whereby a student is not permitted to attend school for more than ten school days but less than 365 calendar days.
“One year” means 365 calendar days as required in federal regulations.
“School property” means any real property owned or leased by the school board or any vehicle owned or leased by the school board or operated by or on behalf of the school board.
“Short-term suspension” means any disciplinary action whereby a student is not permitted to attend school for a period not to exceed ten school days.
Pupils may be suspended or expelled from attendance at school for sufficient cause.
Any student for whom the division superintendent of the school division in which the student is enrolled has received a report pursuant to Va. Code § 16.1-305.1 of an adjudication of delinquency or a conviction may be suspended or expelled from school attendance.
The authority of teachers to remove students from their classes in certain instances of disruptive behavior shall not be interpreted to affect the operation of this Policy.
A pupil may be suspended for not more than ten school days by either the school principal, any assistant principal, or, in their absence, any teacher. The principal, assistant principal, or teacher may suspend the pupil after giving the pupil oral or written notice of the charges against him and, if he denies them, an explanation of the facts as known to school personnel and an opportunity to present his version of what occurred. In the case of any pupil whose presence poses a continuing danger to persons or property, or whose presence is an ongoing threat of disruption, the pupil may be removed from school immediately and the notice, explanation of facts, and opportunity to present his version shall be given as soon as is practical thereafter.
Upon suspension of any pupil, the principal, assistant principal, or teacher responsible for such suspension shall report the facts of the case in writing to the division superintendent or his designee and the parent of the pupil suspended. The division superintendent or his designee shall review forthwith the action taken by the principal, assistant principal, or teacher upon a petition for such review by any party in interest and confirm or disapprove such action based on an examination of the record of the pupil’s behavior.
The decision of the division superintendent or his designee may be appealed to the school board unless the school board has provided by regulation that the decision of the division superintendent or his designee shall be final.
Any oral or written notice to the parent of a student who is suspended from school attendance for not more than ten days shall include notification of the length of the suspension, information regarding the availability of community-based educational programs, alternative education programs or other educational options, and of the student’s right to return to regular school attendance upon the expiration of the suspension. The costs of any community-based educational program, or alternative education program or educational option, which is not a part of the educational program offered by the school division, shall be borne by the parent of the student.
A pupil may be suspended from attendance at school for more than ten days after written notice is provided to the pupil and his parent of the proposed action and the reasons therefore and of the right to a hearing before the school board, or a committee thereof, or the superintendent or his designee, in accordance with regulations of the school board. If the regulations provide for a hearing by the superintendent or his designee, the regulations shall also provide for an appeal of the decision to the full school board. Such appeal shall be decided by the school board within thirty days.
The written notice of a suspension for more than ten days shall include notification of the length of the suspension and shall provide information concerning the availability of community-based educational, alternative education, or intervention programs. Such notice shall also state that the student is eligible to return to regular school attendance upon the expiration of the suspension or to attend an appropriate alternative education program approved by the school board during or upon the expiration of the suspension. The costs of any community-based educational, alternative education, or intervention program that is not a part of the educational program offered by the school division that the student may attend during his suspension shall be borne by the parent of the student.
Nothing herein shall be construed to prohibit the school board from permitting or requiring students suspended pursuant to this section to attend an alternative education program provided by the school board for the term of such suspension.
Pupils may be expelled from attendance at school after written notice to the pupil and his parent of the proposed action and the reasons therefore and of the right to a hearing before the school board in accordance with the regulations of the school board. The regulations shall provide for subsequent confirmation or disapproval of the proposed expulsion by the school board regardless of whether the pupil has exercised the right to a hearing.
The written notice given to the pupil and his parent shall include notification of the length of the expulsion and shall provide information to the parent of the student concerning the availability of community-based educational, training, and intervention programs. The notice shall also state whether or not the student is eligible to return to regular school attendance, or to attend an appropriate alternative education program approved by the school board, or an adult education program offered by the school division, during or upon the expiration of the expulsion, and the terms or conditions of such readmission. The costs of any community-based educational, training, or intervention program that is not a part of the educational program offered by the school division that the student may attend during his expulsion shall be borne by the parent of the student.
Nothing in this Policy shall be construed to prohibit the school board from permitting or requiring students expelled pursuant to this Policy to attend an alternative education program provided by the school board for the term of such expulsion.
If the school board determines that the student is ineligible to return to regular school attendance or to attend during the expulsion an alternative education program or an adult education program in the school division, the written notice shall also advise the parent of such student that the student may petition the school board for readmission to be effective one calendar year from the date of his expulsion, and of the conditions, if any, under which readmission may be granted.
The school board shall establish, by regulation, a schedule pursuant to which such students may apply and reapply for readmission to school. Such schedule shall be designed to ensure that any initial petition for readmission will be reviewed by the school board or the division superintendent, and, if granted, would enable the student to resume school attendance one calendar year from the date of the expulsion. If the division superintendent denies such petition, the student may petition the school board for review of such denial.
No decision to expel a student shall be reversed on the grounds that such factors were not considered. Nothing in this subsection shall be deemed to preclude a school board from considering any of the factors listed above as “special circumstances” for purposes of expulsions discussed in the following subsections.
The school board shall expel from school attendance for a period of not less than one year any student whom such school board has determined to have brought a firearm onto school property or to a school-sponsored activity as prohibited by Va. Code § 18.2-308.1, or to have brought a firearm as defined in this policy or an air rifle or BB gun on school property or to a school-sponsored activity. A school administrator, pursuant to school board policy, or a school board may, however, determine, based on the facts of a particular situation that special circumstances exist and no disciplinary action or another disciplinary action or another term of expulsion is appropriate.
The exemptions set out in Va. Code § 18.2-308 regarding concealed weapons shall apply, mutatis mutandis, to the provisions of this Policy. The provisions of this policy shall not apply to persons who possess such firearm or firearms as a part of the curriculum or other programs sponsored by the schools in the school division or any organization permitted by the school to use its premises or to any law-enforcement officer while engaged in his duties as such.
has determined to have brought a controlled substance, imitation controlled substance, or marijuana as defined in Va. Code § 18.2-247 onto school property or to a school-sponsored activity. The school board may, however, determine, based on the facts of the particular case, that special circumstances exist and another disciplinary action is appropriate.
· The School Board shall determine the propriety of attendance at the hearing of persons not having a direct interest in the hearing. The hearing shall be private unless otherwise specified by the School Board.
· The School Board may ask for opening statements from the principal or his representative and the student or his parent(s) (or their representative) and, at the discretion of the School Board, may allow closing statements.
· The parties shall then present their evidence. Because the principal has the ultimate burden of proof, he shall present his evidence first. Witnesses may be questioned by the School Board members and by the parties (or their representative). The School Board may, at its discretion, vary this procedure, but it shall afford full opportunity to both parties for presentation of any material or relevant evidence and shall afford the parties the right of cross‑examination provided, however, that the School Board may take the testimony of student witnesses outside the presence of the student, his parent(s) and their representative if the School Board determines, in its discretion, that such action is necessary to protect the student witness.
· The parties shall produce such additional evidence as the School Board may deem necessary. The School Board shall be the judge of the relevancy and materiality of the evidence.
· Exhibits offered by the parties may be received in evidence by the School Board and, when so received, shall be marked and made part of the record.
· The School Board may, by majority vote, uphold, reject or alter the recommendations.
· The School Board shall transmit its decision, including the reasons therefore, to the student, his parent(s), the principal and superintendent.
The school board may require any student who has been (1) charged with and Offense relating to the laws of Virginia, or with a violation of school board policies, on weapons, alcohol or drugs, or intentional injury to another person; (2) found guilty or not innocent of an offense relating to Virginia’s laws on weapons, alcohol, or drugs, or of a crime that resulted in or could have resulted in injury to others, or of an offense that is required to be disclosed to the superintendent of the school division pursuant to Va. Code § 16.1-260.G.; (3) found to have committed a serious offense or repeated offenses in violation of school board policies; (4) suspended pursuant to Va. Code § 22.1-277.05; or (5) expelled pursuant to Va. Code §§ 22.1-277.06, 22.1-277.07, or 22.1-277.08 or subsection B of Va. Code § 22.1-277, to attend an alternative education program. The School Board may require any student who has been found to have been in possession or, or under the influence or, drugs or alcohol on a school bus, on school property, or at a school-sponsored activity in violation of school board policies, to undergo evaluation for drug or alcohol abuse, or both, and, if recommended by the evaluator and with the consent of the student’s parent, to participate in a treatment program.
As used herein, “charged” means that a petition or warrant has been filed or is pending against a pupil.
(9) any illegal possession of weapons, alcohol, drugs, or tobacco products.
reports made by local law enforcement authorities on offenses, wherever committed, by students enrolled at the school if the offense would be a felony if committed by an adult or would be a violation of the Drug Control Act, Va. Code § 54.1-3400 et seq., and occurred on a school bus, on school property, or at a school-sponsored activity, or would be an adult misdemeanor involving any incidents described in the clauses (1) through (8) of subsection VII.A. of this policy, and whether the student is released to the custody of his parent or, if 18 years of age or more, is released on bond. A superintendent who receives notification that a juvenile has committed an act that would be a crime if committed by an adult pursuant to subsection G of § 16.1-260 shall report such information to the principal of the school in which the juvenile is enrolled.
C. The principal or his designee shall submit a report of all incidents required to be reported pursuant to subsection VII.A. (1-8) of this policy to the superintendent of the school division. The division superintendent shall annually report all such incidents to the Department of Education.
In submitting reports of such incidents, principals and division superintendents shall accurately indicate any offenses, arrests, or charges as recorded by law-enforcement authorities and required to be reported by such authorities pursuant to subsection VII.B. of this policy.
D. The principal or his designee shall also notify the parent of any student involved in an incident required by this subsection to be reported, regardless of whether disciplinary action is taken against such student or the nature of the disciplinary action. Such notice shall relate to only the relevant student’s involvement and shall not include information concerning other students.
subsection such student shall be required to participate in such prevention and intervention activities as deemed appropriate by the superintendent or his designee. Prevention and intervention activities shall be identified in the local school division drug and alcohol violence prevention plans developed pursuant to the federal Improving America’s Schools Act of 1994 (Title IV-Safe and Drug-Free Schools and Communities Act).
F. Except as may otherwise be required by federal law, regulation, or jurisprudence, a principal shall immediately report to the local law-enforcement agency any act enumerated in clauses (2) through (7) of subsection VII.A. of this policy that may constitute a criminal offense and may report to the local law enforcement agency any incident described in clause (1) of subsection VII.A. of this policy.
jurisprudence, the principal shall also immediately report any act enumerated in clauses (2) through (5) of subsection VII.A of this policy that may constitute a criminal offense to the parents of any minor student who is the specific object of such act. Further, the principal shall report that the incident has been reported to local law enforcement as required by law and that the parents may contact local law enforcement for further information, if they so desire.
G. For purposes of this section, “parent” or “parents” means any parent, guardian or other person having control or charge of a child.
Any student who has been suspended from a school of this division is not eligible to attend any other school within the division until eligible to return to his or her regular school.
Any student who has been expelled or suspended for more than thirty days from attendance at school by a school board or a private school in this Commonwealth or in another state or for whom admission has been withdrawn by a private school in this Commonwealth or in another state may be excluded from attendance in the Buena Vista City Schools, in accordance with Policy JEC (G). In the case of a suspension of more than thirty days, the term of the exclusion may not exceed the duration of such suspension.
In excluding any such expelled student from school attendance, the local school board may accept or waive any or all of any conditions for readmission imposed upon such student by the expelling school board pursuant to Va. Code § 22.1-277.06. The excluding school board shall not impose additional conditions for readmission to school.
No suspended student shall be admitted to the regular school program until such student and his parent have met with school officials to discuss improvement of the student’s behavior, unless the school principal or his designee determines that re-admission, without parent conference, is appropriate for the student.
If the parent fails to comply with this policy or Policy JEC, the School Board may ask the Juvenile and Domestic Relations Court to proceed against the parent for willful and unreasonable refusal to participate in efforts to improve the student’s behavior.
Upon the expiration of the exclusion period for an expulsion or a withdrawal of admission, which period shall be established by the school board or superintendent or his designee, as the case may be at the relevant hearing, the student may re-petition the school board for admission. If the petition for admission is rejected, the school board shall identify the length of the continuing exclusion period and the subsequent date upon which such student may re-petition the school board for admission.
The school board may permit students excluded pursuant to this subsection to attend an alternative education program provided by the school board for the term of such exclusion.
Student with disabilities shall be disciplined in accordance with Policy JGDA.
Code of Virginia, 1950, as amended, §§ 15.2-915.4, 16.1-260, 18.2-119, 18.2-308.1, 18.2-308.7, 18.2-308.2:2, 22.1-200.1, 22.1-254, 22.1-276.01, 22.1-276.2, 22.1-277, 22.1-277.04, 22.1-277.05, 22.1-277.06, 22.1-277.07, 22.1-277.07:1, 22.1-277.08, 22.1-277.2, 22.1-277.2:1, 22.1-279.3:1.


In these two, published, precedential orders denying rehearing en banc, the Federal Circuit paved the way for significantly more involved and prolonged litigation concerning whether patents claim ineligible subject matter under 35 U.S.C. § 101, and the likelihood that some juries may be called upon to decide patent eligibility issues.
In 2014, the Supreme Court articulated a two-part test for determining patent eligibility in Alice. Alice instructed courts to determine (1) whether a patent claims abstract ideas, laws of nature, or natural phenomena; and (2) whether the claims can be implemented using well-understood, routine and conventional tools. If the claims lack an “inventive concept,” they are ineligible for patent protection. In most cases, the second step invoked concepts such as basic economics, fundamental computer systems, or other ideas that were so “well understood” that the courts could take judicial notice of such. Because of this, and the fact that § 101 eligibility is a question of law, courts routinely made dispositive rulings on patent eligibility on the pleadings or on summary judgment.
In both Aatrix and Berkheimer, the Court reviewed step two of the Alice framework and found that there was a dispute of fact as to whether a claim element would have been well-understood, routine, and conventional to a skilled artisan in the relevant field at a particular point in time, and remanded the case for further proceedings. In the case of Berkheimer, that apparently meant remanding for trial – a remarkable and unusual development in § 101 jurisprudence.
Both HP and Green Shades sought rehearing en banc. In per curiam orders, the Federal Circuit denied both. In HP’s request for en banc rehearing, the Court considered if “whether Berkheimer’s claimed invention was well-understood, routine, and conventional” was a question of fact that precluded summary judgment of ineligibility under § 101. Similarly, in Green Shades’ request for en banc rehearing, the Court considered whether “Aatrix’s proposed amended complaint contained factual allegations” precluded Rule 12(b)(6) dismissal.
Each of the orders was accompanied by one opinion concurring in the denial of the petition written by Judge Moore, and joined by Judges Dyk, O’Malley, Taranto, and Stoll; and a second opinion concurring in the denial, penned by Judge Lourie and joined by Judge Newman. Only Judge Reyna issued a dissenting opinion.
In these orders, Judge Moore wrote that “Berkheimer and Aatrix stand for the unremarkable proposition that whether a claim element or combination of elements would have been well-understood, routine, and conventional to a skilled artisan in the relevant field at a particular point in time is a question of fact.” Thus, because the patent eligibility inquiry under § 101 may require an analysis of “underlying factual questions,” step two of Alice may contain factual determinations that should not be decided by judges as a matter of law.
We previously wrote about the significance of the panel decisions when they were issued, treating both Aatrix and Berkheimer as the “Case of the Week” in their respective weeks. See our write-ups here and here. The en banc decisions issued last week, in which only one judge dissented, are again our Case of the Week because of the significance to patent litigators of this development in the law and the guidance posed by the majority of the Court on these issues.
Opinions can be found here and here.
In an appeal from a patent examination, the Federal Circuit reversed and remanded. The examiner had held the claims invalid as obvious. Durance appealed to the PTAB, which affirmed the examiner’s rejection. The PTAB declined to consider certain evidence submitted by Durance in his reply brief, citing 37 C.F.R. § 41.41. On appeal the Federal Circuit observed that the examiner’s arguments shifted numerous times during prosecution and held that “under these circumstances of multiple shifting articulations,” there was a lack of clarity about the basis of the Board’s ultimate finding. The Court also held that the reply evidence should have been considered because it was submitted in response to new arguments raised for the first time in the examiner’s answering brief.
In an appeal from a district court summary judgment ruling of invalidity for indefiniteness, the Federal Circuit reversed. The district court had held that two claims terms that incorporated the terms “program” and “user interface code” to be means-plus-function terms under 35 U.S.C. § 112(f), and found that they failed to disclose sufficient structure, as required under 35 U.S.C. § 112(b), thus rendering the terms indefinite. The Federal Circuit held that the terms were not means-plus-function terms. The court also held that the terms were not “nonce” terms as used in the patent.
In an appeal from an inter partes review, the Federal Circuit reviewed the PTAB’s decision upholding the validity of a patent in the telecommunications field. The PTAB had found 16 claims not invalid after finding the independent claim not invalid. The Federal Circuit reversed, finding the independent claim both anticipated over a patent “sharing significant disclosure” and obvious over a combination of art. The Court remanded for a determination of the patentability of the 15 dependent claims. Judge Wallach dissented, opining that “[t]he majority improperly steps out of the appellate role and substitutes its own interpretation of the evidence for the PTAB’s.” Judge Wallach also opined in a footnote that the majority opinion was not a holding but was entirely advisory, noting that, by finding the claims both anticipated and obvious, neither determination was necessary to its decision.


text:
Please Help Protect Law Enforcement and First Responders - Move Over, America!
Move Over Law Implemented in 2007 and enhanced in 2011.
fail to move over when passing through the emergency zone.
Move Over Law Implemented in 2003 and enhanced in 2010.
location is within a Safety Corridor, School Zone or Work Zone).
motorists must move over if safe to do so or slow down.
Move Over Law Implemented in 2003.
fines up to $395 and 4 points on their driver license.
Move Over Law Implemented in 2006.
Move Over Law Implemented in 2005.
Move Over Law Implemented in 2001.
Move Over Law Implemented in 2002.
2011 and violation of this law could result in fines up to $200.
Move Over Law Implemented in 2001 and enhanced in 2009.
which is punishable by a fine of $200 and/or 60 days in jail.
Move Over Law Implemented in 2009.
while on the shoulder of I-90 in Winona in 2000.
321.323A or 321.324 is $100, plus any surcharge and court costs.
emergency vehicles to encompass some MoDOT vehicles.
Violation of this law could result in fines up to $200.
$260 and three demerit points added to your license.
law could result in fines from $100 to $10,000.
in 2004 to include wreckers and road service vehicles.
and amended in 2010 to utility service vehicles.
vehicles stopped on the side of the highway.
and amended in 2011 to utility service vehicles.
Move Over Law Implemented in 2007.
Violation of this law could result in fines from $25 to $100.
1,793 times, resulting in five deaths and 419 injuries.
up to $500 and 3 points on your license.
Violation of the law could result in fines up to $500.
Violation of the law could result in fines up to $250.
of the Virginia move over law can result in a Class 1 misdemeanor.
No Move Over Law yet exists.
penalty of up to 500 dollars and 60 days in jail.
Move Over Law Implemented in 2010.
over $100 and 2 points on your license.
Move Over Law Implemented in 2000.
up to $150 and 3 points on your license.
Violation of this law could result in fines from $100 to $10,000.
Move Over Law Implemented in 2008.
Failure to slow down or move over may result in a fine of $85.00.
Violation of this law could result in fines up to $100.00.
Fines for violating this law are $311.
Honolulu Police Officers were killed in separate traffic stops.
determined by the municipal court in which the violator is charged.
Violators of the Move Over law can be charged with a Class F Felony.
With Hawaii making the Move Over law effective in July 2012, all the states across the country have implemented progams to help make our roads safer. Please do your part and spread the word!
When you see flashing lights on the side of the road, slow down, and if it’s safe, Move Over – away from police, fire crews, paramedics and tow truck drivers. If you make the move, others will follow.
Stay aware of changing laws across the country. Help protect emergency responders at roadway incidents through collaboration, advocacy, networking and training.
According to FBI statistics, law enforcement officers being struck and killed is a major cause of law enforcement deaths.
Illinois State Police trooper Kyle Deatherage was struck by a semi and killed during a traffic stop.
The crash occurred just after 9 a.m. in the northbound lanes of Interstate 55 at milepost 62, just north of Litchfield, according ISP.
Trooper Kyle Deatherage, a motorcycle officer, was standing next to a car when the semi-truck hit him. He was pronounced dead at the scene. Trooper Deatherage, 32, joined the Illinois State Police on May 31, 2009. He is survived by his wife and their two children.
Related Article: Hundreds honor Illinois Trooper killed in the line of duty.
Police Officer Angel Garcia was struck and killed while responding to a traffic hazard. Officer Garcia is the ninth law enforcement fatality from the State of Texas in 2012. The 27-year-old El Paso police officer just nine months out of the police academy was killed Sunday morning while trying to remove a ladder from Interstate 10.
Officer Jeremy Bitner was struck and killed by a drunk driver while conducting a traffic stop.
During the initial stop he had the driver exit the vehicle. As the two stood in the roadway next to the car, a drunk driver sideswiped Officer Bitner's patrol car and then struck him and the other driver, throwing them both approximately 50 feet. A witness to the collision called 911 and followed the drunk driver as he fled the scene in his vehicle. Officers from the Littleton Police Department arrested him several minutes after the crash due to the witness' actions.
Florida Highway Patrol - Safety tips from the Florida Highway Patrol and the Department of Highway Safety and Motor Vehicles.
myCitation.com - Learn everything you need to know about your traffic ticket. Pay your traffic ticket online. Lots of resources and useful links.
Ohio State Patrol - The Patrol’s Move Over and Slow Down Public Service Announcements.
State of New Jersey Dept of Law and Public Safety - An overview of New Jersey Statute 39:4-92.2 and public awareness material from the Attorney General.
Sheriffs.org - National Sheriffs' Association, homeland security, law enforcement, public safety.
PoliceOne.com - Welcome Police Officers & Law Enforcement to the #1 Resource for Cops.
Georgia Highway Patrol - Georgia's move over law saves lives.
Yellow Ticket - Florida's Best Traffic School, live classes and online classes available. Approved statewide by the Florida DHSMV.
NAPO.org - National Association of Police Organizations. Representing America's Finest. The leader of America's national law enforcement organizations.
StateTroopers.org - Providing benefits and services to America's state troopers since 1989.
1SafeDriver.com - Driving Safety Programs, Defensive Driving and Traffic School Courses, Texas TEA Approved, New Jersey MVC Approved for point reduction.
National Law Enforcement Memorial Fund - Respect. Honor. Remember.

matches:
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine


text:
Legal Developments 2009 – Rudi Fortson Q.C.
Re v F and S  EWHC 2512 (Admin) The case is a further illustration of the prinicple that, where a certificate of inadequacy is sought pursuant to s.83, CJA 988, it is insufficient for a defendant to say ‘that his assets are inadequate to meet the confiscation order, unless at the same time he condescends to demonstrate what has happened since the making of the order to the realisable property found by the trial Judge to have existed when the order was made’ (citing Gokal v Serious Fraud Office (2001) EWCA Civ 368, at para. 24, Re O’Donoghue  EWCA Civ 1800, and In the Matter of B  EWHC 3217). The Court added that “where…the court is quite satisfied that there has been a total lack of candour on the part of each applicant as to his current assets, and where the hidden asset in each case has been found by the judge to be of a substantial value…it does not lie in the mouth of the applicant to say that the shortfalls in respect of particular identified assets mean that a certificate must follow ‘as a matter of common justice'” [para.29].
SOCA v Pelekanos  EWHC 2307 (QB) [transcript].
Mejia and Sneath  EWCA Crim 1940 [transcript]. M and S appealed against confiscation orders made against them following their conviction for conspiracy to supply cocaine. The judge made a finding that they had each benefited in the sum of £268,770 (based on an equal split of a total figure of £537,540). The appellants contended that, having regard to Islam  UKHL 30, the cocaine-impregnated doors (containing 17.34 kg of pure cocaine) would have no market value. The Court rejected the suggestion as “absurd” given that the cocaine was brought into this country for the very purpose of extracting the cocaine and selling it on. The Court also rejected the contentions (a) that the relevant value of the benefit was the invoice price of the doors or (b) the cost price of the cocaine in Panama. Contention (b) is of greater interest to practitioners. The Court held that the relevant question is the market value of the property in the UK – not its cost at source. M also submitted that in the light of e.g. CPS v Jennings  UKHL 29, that his limited role in relation to the storage premises, involving neither the purchase nor the importation of the doors, was insufficient to result in a finding that he had “obtain” the property at all. Whatever the actual merits might be about that point, the “insuperable problem” about that and other submissions “is that they were not advanced in the confiscation proceedings in the Crown Court”. The comments made by the Court, in relation to the evidence relevant to the question of whether M obtained the drugs, are arguably best seen in the context of that problem.
R v Fazal  EWCA Crim 1697 [transcript].
F was convicted of seven counts of money laundering pursuant to s.327 POCA2002 (concealing, disguising, converting, etc criminal property) in respect of 7 deposits that were made, over a two month period, into a bank account held by F. Six deposits came from victims who had paid for goods advertised on the Internet which were never delivered and never intended to be delivered. The 7th deposit concerned a stolen forged cheque which was cleared into that account. F submitted that as the deposits and their withdrawals were done by others (either by the victims or, by a friend of F) and that as F had merely allowed his account to be used by another(s), he was not himself guilty of converting criminal property, even assuming the necessary mens rea. In dismissing the appeal against conviction, the Court of Appeal said that there were successive acts of converting criminal property, “not only when these monies were lodged but also when they were credited to the appellant’s account, when they were retained in it, and when they were withdrawn from it, all of which occurred with the full co operation, knowledge, approval and authority of the appellant…” [para.22]. It is submitted that the decision to dismiss the appeal was right. But two points seem not to have been taken (probably for sound reasons that do not appear in the judgment). First, there is the question of whether money that had been transferred by a victim into F’s account, was a “benefit” obtained by B from the moment that it left V’s bank account. Section 340(5) POCA states that a person “benefits from conduct if he obtains property as a result of or in connection with [criminal conduct]”. However, s.340(10)(a) states that “property is obtained by a person if he obtains an interest in it”. It is difficult to see what interest B or F obtained until the monies had been credited to F’s account. Secondly, if the monies deposited by V became a benefit in B’s hands at the moment that they were credited to F’s account, then the question arises whether F at that precise moment (and assuming knowledge of the fraudulent transaction) concealed, or disguised, or converted, “criminal property”? It is submitted that the strict answer is in the negative because the acts forbidden by s.327(1) relate to a time after property has become a person’s benefit from criminal conduct (s.340). Even if that answer is correct, this need not be an obstacle to a conviction under s.327 because, as the Court points out, “When money goes through an account it changes its nature from money likely to be owned by one bank but representing a debt owed to one creditor into money owned by another bank and representing a debt owed to another creditor. Finally, when that money is withdrawn in cash, if it is withdrawn in cash, it becomes transferred into cash into the hands of the withdrawer.” [para.22].
R v Knaggs  EWCA Crim 732 [transcript]. The defendant dismissed his legal team which, by his absence, deprived him of the opportunity of proving his case that he had no assets. The Court of Appeal stated (correctly it is submitted) that this was his own fault, “If a defendant declines to take the opportunity to establish that his realisable assets are less than the amount of the benefit, because he is aggrieved at the judge’s conclusion as to the benefit, he cannot later complain as to the consequences of that decision. He is not entitled to wait and see whether he can successfully impugn the calculation of benefit on appeal.” [para.34].
Whittington v The Crown  EWCA Crim 1641 [transcript]. The Court of Appeal emphasised that “it is for the prosecution to prove that the defendant has obtained the property in issue, which will either be known property he still possesses or which he has possessed. This issue as to proof of the existence of property must not be confused with proof of the source of that property.” [para.13]. The existence of property must be proved to the civil standard of proof (Briggs-Price  2 WLR 1101 explained). Furthermore, the Court stressed that the assumptions “have nothing whatever to do with proof that the defendant obtained property. Apart from the fourth, they are concerned only with proof of the source of property which the prosecution has proved the defendant has obtained or remains in his possession.” [para.18].
CPS v Nelson and others  EWCA Crim 1573 [transcript]. The Court of Appeal held that s.6(6) POCA 2002 “does not state expressly, and does not appear to provide, that compensation paid to the victim in advance of civil proceedings or an expressed intention to take them, reduces the duty to make a confiscation order to a power, notwithstanding that a defendant has in reality fulfilled this desirable statutory purpose before being impelled to do so by the threat or fact of civil proceedings. What we perceive to be a gap in the statutory process is recognised in the guidance. Where the facts demonstrate that the defendant has voluntarily repaid the proceeds of his crime to his victim and has thus deprived himself of any profit from his crimes, we endorse the guidance relating to voluntary repayment of full compensation in a simple benefit case where the proceeds of the crime have not been used to the defendant’s wider financial advantage as consistent with the interests of justice within the statutory context. In such a case the statutory purpose that the defendant should not enjoy the fruits of his offence(s) will have been achieved.” [para.45].
R v Islam  UKHL 30 [transcript]. The questions of whether illicitly obtained drugs in D’s hands have a value, and what that value is, have been difficult to analyse, as well as to answer, ever since the enactment of the DTOA1986 (see Fortson, Misuse of Drugs and Drug Trafficking Offences, 4th and 5th editions, Sweet & Maxwell). In the most recent decision on the issue, the House held (Lord Walker and Lord Neuberger dissenting) that (1) the expression “market value” for the purpose of determining the value of D’s benefit (see ss.6, 7, 8, 79, 80 POCA 2002), even where the property concerns illegally obtained controlled drugs, is “the market to which he would have been expected to go to sell the drugs, even although this was an illicit one, especially as this was the only market in which he could have derived any significant benefit from them”, but (2) that in relation to the “available amount” (the realisable value of property in D’s hands), the court is “looking for the amount that the defendant can be expected to pay under the confiscation order. The assumption is that he will have to realise his property if it is not already available to him in the form of cash. The only market that can properly be considered for this purpose is one in which it will be lawful for him to engage in. The court cannot expect him to resort to transactions that are illegal to find the money that he will need to satisfy the terms of the confiscation order.” [per Lord Hope, para.17; see ss.7, 9, 79, 82]: Hussain  EWCA Crim 1740 overruled, Byrne v Low  1 WLR 1282 considered. It is hardly surprising that their Lordships did not find the issues easy to unpick. The following points are made. First, the opinions do not explain that both the DTOA1986 and the DTA1994 speak not of a benefit “obtained” (which is the word used in the CJA1988 and POCA) but of a “payment or other reward” that is “received” (see, for example, the discussion in Berry  EWCA Crim 2252). There are cases where D is given a controlled drug as a payment or reward (e.g. for acting as custodian of a drug). Secondly, Islam decides (or it did not hold that a concession made by the Crown was erroneous: see paras.69/70) that the market value to be ascribed to illegal controlled drugs, for the purposes of s.9(1)(a) POCA, is nil. Thirdly, a distinction was made between (1) forfeiture which is “automatic” when HMRC have seized goods [para.34; but the source of such a power was not cited] and (2) goods seized but liable to forfeiture (e.g. s.27 MDA1971). Fourthly, although the definition of “free property” is narrowly defined (s.82 POCA), it is at least arguable that a controlled drug that D is forbidden from possessing without lawful authority (MDA 1971) is not “held” once it has been seized. D can hardly sue for its return. The question is therefore not simply one of value but whether D “holds” the property at the moment that the court is determining D’s “available amount”. D might be in unlawful possession of drugs, which the authorities have not seized (e.g. being unable to find them). As the House points out, D cannot be expected to realise the drugs (which the MDA 1971 forbids) in order to pay a confiscation order, so that either the value is nil or (arguably) D is adjudged not to “hold” the property for the purposes of s.9 POCA. It is accepted that the latter point is fraught with difficulty (some might say that the point is unarguable). Fifthly, some controlled drugs can, in the condition in which they appear when seized, be sold on the legitimate market (consider temazepam and other medicinal products). Sixthly, what is the true purpose of confiscation and the determination of “benefit”? Benefit is not profit but it is, supposedly, proceeds (and no longer, in cases of drug trafficking, property that is received as a “payment or other reward”), and yet a confiscation order can be made in respect of a “benefit” which D “obtained” without actual personal enrichment (e.g. drugs seized at a port).
R v Clarke  EWCA Crim 1074 [transcript]. The Court of Appeal held that, having regard to Savage (1983) 5 Cr.App.R.(S) 216, and Young (1991) 12 Cr.App.R.(S) 262, and of the history of s.12(7) of the Powers of Criminal Courts (Sentencing) Act 2000, the Crown Court has no power to make to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence. However, the Court added that given that a confiscation order can (at least in theory) be made before passing sentence, it would be prudent “in those very rare cases where an absolute or conditional discharge is a possibility, to decide upon sentence first. We do not think that offends section 13 of the 2002 Act” [see para.78].
R v Shahid  EWCA Crim 831 [transcript]. The Court of Appeal held that the fact that a bankrupt’s assets are vested in his trustee in bankruptcy may well affect the enforcement of a confiscation order (calculated by reference to those assets) but it does not necessarily affect the making of the order in the first place (see s.102(8) CJA 1988): see para.13 of the judgment. The Court noted that in CPS v Compton  EWCA 1720 Civ, the Court of Appeal did not doubt that the confiscation order which had been made in that case could have been made despite the refusal of the court previously to make a restraint order simply because the defendant had already been made bankrupt.
CPS v Campbell and oths  EWCA Crim 997 [transcript]. The Court of Appeal dealt with three cases in which the defendant in confiscation proceedings had not been able to obtain legal representation for one reason or another (see R v P  EW Misc 2 (EWCC)) [transcript] . The Court reached the conclusion that the fact that in the future an adequately funded advocate may be available was no justification for an adjournment.
R v Briggs-Price  UKHL 19 [transcript]. The House of Lords considered whether, for the purposes of the DTA 1994, (a) it is permissible for the prosecution to to establish that D has benefited from drug trafficking by proving that he has committed drug offences and then inviting the court to infer the monies expended or received in relation to those offences, and (b) whether such an approach is incompatible with the requirements of the ECHR. The HL dismissed the appeal concluding (4:1) that the approach did not engage article 6(2). The HL also held (3:2) that the relevant standard of proof was the criminal standard. On the facts of B-P, the trial judge had found cannabis trafficking proved “beyond reasonable doubt” (Asan Rushiti v Austria (2001) 33 EHRR 1331; Geerings v Netherlands (2007) 46 EHRR 1222, considered). It seems not to have been argued that B-P ought to have been charged with cannabis trafficking that conduct was to be relied upon in subsequent confiscation proceedings or, that the cannabis trafficking conduct should not have been taken into account (see para.150). Geerings appears to be authority for the proposition that benefit is not to be calculated by reference to an offence with which the defendant was charged and of which he has been acquitted (see para.90, Briggs-Price). This case might have implications in the context of other civil proceedings where an allegation of criminal conduct is alleged against the defendant.
R v Agombar  EWCA Crim 903 [transcript]. The Court of Appeal held that since the trial judge concluded, in confiscation proceedings under POCA 2002, that property had been acquired by and thus represented the proceeds of crime, any money raised by way of mortgage must itself be the proceeds of crime. It is not clear if cases such as Walls  EWCA Crim 2456 and Nottinghamshire CPS v Rose  EWCA Crim 239, were considered.
R v Peacock and Gillett  EWCA Crim 654 [transcript]. A case that illustrates the operation of s.16 DTA 1994 (application by the prosecution for an increase in the amount to be recovered under a confiscation order).
R v McMillan-Smith  EWCA Crim 732 [transcript]. The Court of Appeal, having heard evidence on the appeal, was satisfied that M had no hidden assets by reason of his extravagant lifestyle. Indeed the fact that he had an extravagant lifestyle was part of the prosecution case against him at trial.
Sinclair v Glatt  EWCA Civ 176 [transcript]. The Court of Appeal (Civil Division) has held that there can be circumstances in which a receiver, who is appointed pursuant to s. 77 of the Criminal Justice Act 1988, will be entitled to recover his/her costs from innocent third parties whose assets are tied to the defendant’s notwithstanding that those third-party assets cannot be used to satisfy the confiscation order itself. It is unclear in what circumstances Article 1 of the First Protocol of the European Convention on Human Rights might be applied to limit the costs and expenses recoverable from an innocent third party (see paras.25 and 42, and consider Hughes v Customs & Excise Commissioners  1 WLR 177). In a useful summary of the position, the Court said that a receiver, like a receiver at common law, is entitled to recover his remuneration, costs and expenses from the assets which he has been appointed to receive (“the receivership assets”). That is so whether or not he ought to have been appointed in the first place or the order appointing him has been discharged (Mellor v Mellor  1 WLR 517). Even if the defendant, whose assets have been caught by the order appointing the receiver, is subsequently acquitted or has his conviction quashed, the receivership assets must bear the costs of the receivership; this is also the position if a confiscation order is made but subsequently quashed (Hughes v Customs and Excise Commissioners  1 WLR 177). Even if the receiver carries on his receivership unnecessarily and should have agreed that his receivership should have been discharged at a time before a court application is made to terminate his receivership, the receivership assets bear those costs reasonably incurred up to the date he is actually discharged (Capewell v Revenue and Customs Commissioners  1 WLR 386): per Longmore LJ, para.2.
R v Smith  EWCA Crim 344 [transcript]. This is another case in a line of recent cases regarding fixing the term of imprisonment in default of payment of a confiscation order: see Szrajber (1994) 15 Cr App R (S) 821, French (1996) 16 Cr App R (S) 841, Qema  EWCA Crim 2806, Howard  EWCA Crim 1489, and Liscott  EWCA Crim 1706. The Court of Appeal said, “In fixing the precise length of the sentence…The court must have particular regard to the purpose of the imposition of a period of imprisonment in default, that is to say to secure payment of the amount that the court has ordered to be paid. This is because the overriding purpose of the legislation is to ensure that those who benefit from such crimes do not retain those benefits. The power to imprison in default is given to ensuring or obtaining as far as possible the co-operation of the defendant in complying with the order. It is to be make clear to him that he has nothing to gain by non-compliance. It is particularly important to have regard to the judgment of Hobhouse LJ in French to that effect at page 844 of the report. Although a court must take into account intransigence, it seems to us the court must also take into account, in a case where the order is not for the maximum, what that maximum is”. The Court added that it was wrong in principle to take into account, in fixing the default term, the substantive sentence. Presumably Cukovic  1 Cr.App.R.(S.) 131, and Walpole (19th June 1997; 97/2302/Y2) no longer represent current policy on this point (but neither case is referred to in the judgment).
R v Kousar  EWCA Crim 139 [transcript]. The Court of Appeal held that for the purposes of s.92(1)(c) of the Trade Marks Act 1994, proving the element of “possession, custody or control” required more than merely showing that D had the “ability to control” or the right to control goods, the existence of which D had knowledge. Thus, where goods were in a house occupied by D it was not enough “to say that it was her house, she lived there, she knew the goods were there; thus she had the right to demand that they should be removed, she acquiesced in their presence in the house and that was sufficient to render her in possession of them”. The cases of McNamara  Crim LR 278, R v Bland  Crim LR 41, R v Searle  Cr.App.R 592 and R v Conway and Burkes  Crim LR 826, were considered. The court remarked, “Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough” [para.17]. It is submitted that the decision is plainly right.
In MacAngus, the HCJAC noted that Professor Timothy H Jones offers a critique of Hart and Honoré’s analysis of the law of causation: Causation, Homicide and the Supply of Drugs (2006) 26 Leg. Studies 139. For a strong ‘defence’ of the position in England and Wales see D. Ormerod and R. Fortson ‘Drugs suppliers as manslaughterers (again)’  Crim LR 819. The Scottish approach appears to have its roots in Kaliq (glue-sniffing kits). That case, and later Scottish cases, have restricted the application of the ‘novus actus interveniens’ principle in order to deal with cases of substance use/misuse and, they move away from the notion of the autonomy of the drug/substance user. But, where are the lines that limit liability under Scottish law, to be drawn? In Ulhaq, the Court said, “The essence of the charge…was that the appellant knew that the purpose of the acquisition of the solvents was their abuse and that the supply of them to their recipients was a cause of that abuse. That is sufficient for the conduct to be criminal…” It added, “neither the age of the purchaser nor the supply of kits to assist inhalation [is] essential…they do not provide the measure of the offence. They are simply factors, whose weight will vary with the circumstances.” It is respectfully submitted that this is an unsatisfactory, uncertain, basis for fixing criminal liablility (whether culpable homicide [Lord Advocate’s Reference (No.1 of 1994)]; or supplying to another a substance in full knowledge that a person will use it to the danger of his health and life [Khaliq; Ulhaq]). The English cases have tended to deal with Class A drugs that resulted in death. The Scottish cases include the supply of solvents (not controlled) and Ketamine (a Class C drug).
Bullen and Soneji v. the United Kingdom decided 8th January 2009 [transcript]. The ECrtHR held that there had been a violation of Art.6.1 in connection with a delay of approximately five years and six months (including appeals to the Court of Appeal (Criminal Division) and the House of Lords) in the final determination of confiscation proceedings. On 24 March 2000 and 3 April 2000, the second and first applicants (respectively) were each convicted and became liable to have confiscation orders made against them. The periods ended in October 2005 when the Court of Appeal re imposed the confiscation orders and sentences of imprisonment in default, following the House of Lords’ order of 21 July 2005. However, he Court found no evidence to substantiate the applicants’ complaint that the imposition of the confiscation orders against them outside the statutory time-limit rendered the proceedings unfair within the meaning of Article 6 § 1 of the Convention.
Gabric v. Croatia (decided 5th February 2009) [transcript]. G succeeded before the ECrtHR in her complaint that that the decision of the domestic authorities (pursuant to s.74a(1), Foreign Currency Act, and s.9(2), Prevention of Money Laundering Act) to both fine G and to confiscate Deutsche Marks 20,000 from her, for having failed to declare that sum at the customs in 2002, had been excessive and violated Art.1 of Protocol No.1 ECHR. The Court reiterated that a confiscation measure, even though it does involve a deprivation of possessions, nevertheless constitutes control of the use of property within the meaning of para.2 of Art.1 of Protocol No.1, citing Riela and Others v. Italy; Arcuri and Others v Italy; C.M. v France; Air Canada v the UK (1995); A and AGOSI v the UK (1986). It was common ground that the interference pursued a legitimate aim in the prevention of money laundering. The only issue was whether there was a reasonable relationship of proportionality between the means employed by the authorities to achieve that aim and the protection of the applicant’s right to the peaceful enjoyment of her possessions. NOTE: unlike the ‘cash forfeiture’ provisions under Part 5 of POCA 2002, it was not a requirement of the aforementioned legislation for the state to prove that the cash was obtained through unlawful conduct or intended by any person for use in unlawful conduct.
R v Allpress and others  EWCA Crim 8 [transcript]. A five-judge Court of Appeal considered five conjoined appeals in relation to confiscation proceedings against defendants who had varying degrees of involvement in the safeguarding or transfer of funds which represented proceeds of crime. It seems clear that the decision in R v Simpson (David)  2 Cr App R (S) no longer represents the law. In Allpress, the Court pointed out that Sivaraman  EWCA Crim 1736, addressed two misconceptions. The first misconception is that in assessing benefit in a conspiracy case, each conspirator is to be taken as having jointly obtained the whole benefit obtained by “the conspiracy”. In confiscation proceedings the court is concerned not with the aggregate benefit obtained by all parties to the conspiracy but with the benefit obtained, whether singly or jointly, by the individual conspirator before the court. The secondly misconception is that anybody who has taken part in a conspiracy in more than a minor way is to be taken as having a joint share in all benefits obtained from the conspiracy: there is a distinction between criminal liability and resulting benefit. In confiscation proceedings “the focus of the inquiry is on the benefit gained by the relevant defendant” [Allpress, para.31]. The Court rejected the argument that the language of DTA 1994 s2(3) and CJA 1988, s71(4) compels a different approach to sums of cash than to other forms of property [para.59] or that the judicial committee’s observations in May and Jennings were incorrect or inapplicable in relation to POCA 2002, either in cases involving other forms of property or in cases involving money [para.79]. Accordingly, “if D’s only role in relation to property connected with his criminal conduct, whether in the form of cash or otherwise, was to act as a courier on behalf of another, such property does not amount to property obtained by him within the meaning of POCA 2002 s80(1) or CJA 1988 s71(4) or to ‘payment or other reward’ within in the meaning of DTA 1994 s2(3).” [para.80]. The Court reached the same conclusion in relation to a mere custodian of cash for another [para.82]. Where money is laundered through the banking system, the Court observed that “The starting point (as in R v Sharma  EWCA Crim 16,  2 Crim App R (S) 416), is that this was therefore his property. In Sharma the defendant caused the proceeds of a fraud in which he was engaged to be paid into a company account of which he was the sole signatory. It was held that the money in the account was money held for his benefit as the sole signatory on the account, and that decision was approved by the House of Lords in May (para 34).” The Court added that it did not “exclude the possibility of a case where money is paid into a bank account in the name of D, but which is in reality operated entirely by P for the benefit of P, and where it would be wrong, unusually, to conclude that D obtained monies paid into the account. This is more likely to arise in a domestic than a commercial context” [para.86]. Readers of this author’s work, Misuse of Drugs Offences, Confiscation and Money Laundering, will know that the result is one that answers the author’s concerns touched upon in the 5th edition, but expressed more forcefully in earlier editions (see 4th ed., p.13-200 to 13-206).

matches:
EWCA
EWCA
EWCA
UKHL
UKHL
EWCA
EWCA
EWCA
EWCA
UKHL
EWCA
EWCA
EWCA
EWCA
EWCA
EWCA
UKHL
EWCA
EWCA
EWCA
EWCA
EWCA
EWCA
EWCA
EWCA
EWCA
EWCA
EWCA
v.
Art.6
§ 1
v.
Art.1
Art.1
v.
EWCA
EWCA
EWCA


text:
Abram Pens. B v. Golborne Comm.
Garswood Hall B v. Golborne Comm.
Hindley Platt Lane A v. Golborne Comm.
Alexandra Park A v. Golborne Comm.
St. Matthews v. Golborne Comm.
BYE (Westhoughton Resigned 5/3) v. Golborne Comm.
Alexandra Park B v. Golborne Comm.
Aspull A v. Golborne Comm.
Highfield A v. Golborne Comm.
Wigan Subs v. Golborne Comm.
Aspull B v. Garswood LC.
St. Wilfrids B v. N. C. B.
Boars Head v. N. C. B.
Mesnes Park v. Garswood LC.
St. Patricks A v. Garswood LC.
St. Wilfrids A v. N. C. B.
N. C. B. v. Garswood LC.
Hindley Platt Lane B v. N. C. B.
Aspull B v. N. C. B.
St. Pauls v. Garswood LC.
Shevington Village BC v. Garswood LC.
Mesnes Park v. N. C. B.
Hindley Platt Lane B v. Garswood LC.
St. Patricks A v. N. C. B.
St. Wilfrids B v. Garswood LC.
Highfield C v. N. C. B.
St. Pauls v. N. C. B.
Highfield C v. Garswood LC.
Garswood LC. v. N. C. B.
Boars Head v. Garswood LC.

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