Fairchild argues that even if her statement of income was inaccurate, the evidence was insufficient to show that she knew and believed that she had underreported her income. According to Fairchild, the nature of the money that she received from Karlen and Pietz was "unclear." She notes that she, Karlen, and Pietz all gave different accounts of the nature of the money over time and that her accountant did not know how to categorize the money for tax purposes. She asserts that she "liberally" estimated the money received from Karlen and Pietz as payment for private parties. She cites her testimony at trial that she "truly believed that she accurately declared income from these private clients and that the remainder of the money was gifted to her." She concludes that because of the "widespread confusion over the nature of the money, no rational juror could have found that [she] believed that the declaration of her income was false." Fairchild also argues that the evidence was insufficient to show that she willfully made and subscribed false tax returns. She asserts that she sincerely held this belief and that she did not willfully violate the tax laws because she had a good-faith belief that the money that she received from Karlen and Pietz above and beyond the amount that she declared as income was a gift.
"Filing false tax returns is a specific intent crime requiring a showing of willfulness, which 'simply means a voluntary, intentional violation of a known legal duty.'" United States v. Mathews, 761 F.3d 891, 893 (8th Cir. 2014) (quoting Cheek v. United States, 498 U.S. 192, 201 (1991)). "Intent may be inferred from conduct, and [w]illfulness in a criminal tax case may be established by a consistent pattern of not reporting income or inconsistently reporting income." Id. at 893 (alteration in original) (quotations and citations omitted). Furthermore, the factfinder may infer from the facts of the case whether an act was committed willfully. Id. at 894.
Fairchild contends that the government failed to prove that her conduct was willful because there was evidence of her good-faith belief that she was not violating the tax laws. "'The issue is whether, based on all the evidence, the [g]overnment has proved that [Fairchild] was aware of the duty at issue, which cannot be true if the jury credits a good-faith misunderstanding and belief submission, whether or not the claimed belief or misunderstanding is objectively reasonable.'" United States v. Morse, 613 F.3d 787, 794 (8th Cir. 2010) (first alteration in original) (quoting Cheek, 498 U.S. at 202). The government frequently must prove intent "by circumstantial evidence; the determination often depends on the credibility of witnesses, as assessed by the factfinder." United States v. Morris, 723 F.3d 934, 939 (8th Cir. 2013) (quotation and citation omitted). "The jury may infer intent from the Appellants' conduct, such as inconsistencies between Appellants' representations to government agencies and other entities." Id. (citation omitted). Because "knowledge . . . turns in large part on the credibility of the witnesses," it "is peculiarly within the province of the factfinder." Id. (quotation and citation omitted). For that reason, a jury is "free to disregard [a defendant's] statements as not credible" in evaluating whether the defendant had a "'good[-]faith belief' that he was properly preparing his tax returns." Mathews, 761 F.3d at 894.
We hold that sufficient evidence exists to support the jury's finding that Fairchild knew and believed that she had underreported her income and that she willfully did so. At trial, Fairchild testified that she truly believed that she accurately declared income from Karlen and Pietz and that the remainder of the money was a gift to her. But, "the jury was free to disregard [Fairchild's] statements as not credible." See Mathews, 761 F.3d at 894.
The Indictment charges that both the income and tax liability owed were false as stated by Fairchild in the tax returns in question. It is not necessary for the government to prove both. It would be sufficient if the government proves beyond a reasonable doubt that Fairchild made and signed an individual income tax return that was false as to either the income or the tax liability owed. To find the government has met its burden on this element, however, you must unanimously agree on whether the false matter was regarding Fairchild's income, tax liability owed, or both. If you are unable to unanimously agree, you cannot find Fairchild guilty.
find the government has met its burden on this element in Count 4, you must unanimously agree on whether Fairchild understated her taxable income from David Karlen, her taxable income from Paul Pietz, or both. If you are unable to unanimously agree, you cannot find Fairchild guilty on Count 4.
Counsel's concern was that the jury could convict Fairchild "without all 12 of them agreeing on what the actus reus is in this case, what wrong thing she did is in Count 4" because Count 4 involved "evidence about false reporting David Karlen and false reporting Paul Pietz." According to counsel, a "real chance" existed that six jury members could believe that Fairchild lied about Karlen but not Pietz, while the other six members could believe that Fairchild lied about Pietz but not Karlen. Counsel asserted that the jury "would recognize that that means acquittal on Counts 1 through 3 where Karlen is the only issue." But he contended that unless the jurors were "specifically instructed about their duty to unanimously agree to a particular set of facts [on Count 4], they could . . . say, well, on Count 4 six of us agree she lied about Karlen. Six of us agree she lied about Pietz. Six plus six is 12, guilty." The trial court refused the requested instruction as unnecessary.
On appeal, Fairchild argues that because the government presented evidence of multiple sources of allegedly unreported income, the indictment was duplicitous, and the district court's jury instructions failed to ensure that the jury reached a unanimous verdict for each count. Fairchild concedes that her "duplicity argument does not rest on the language of the indictment." But she asserts that "this is not damning to [her] argument" because "the potential for a nonunanimous verdict arose out of the evidence of multiple sources of unreported income for each tax year," meaning that "the jury should have been instructed to agree on the willful falsity of 'one factually distinct false statement.'" (Quoting United States v. Duncan, 850 F.2d 1104, 1113 (6th Cir. 1988), overruled on other grounds by Schad v. Arizona, 501 U.S. 624 (1991).) She asserts that her proposed jury instruction "would have cured [the indictment's] duplicity" and ensured jury unanimity.
As Fairchild admits in her brief, she is not attacking the language of the indictment; that is, she does not argue that "the indictment is . . . duplicitous on its face. Instead, [she argues that] the indictment was rendered duplicitous by the evidence presented at trial." United States v. Pietrantonio, 637 F.3d 865, 871 (8th Cir. 2011) (citing United States v. D'Amico, 496 F.3d 95, 100 (1st Cir. 2007) ("[T]he fact that an indictment is not duplicitous on its face of course does not guarantee that a jury verdict will be unanimous, based on the evidence actually presented.")). Fairchild maintains that the government created a duplicitous indictment by presenting three sources of "underreported" income at trial: (1) unreported checks from Karlen and unreported tips for dancing in clubs in 2005; (2) unreported checks from Karlen and unreported income for dancing in clubs in 2006 and 2007; and (3) unreported checks from Karlen, unreported checks from Pietz, and unreported tips for dancing in clubs in 2008. Fairchild asserts that to reach a unanimous verdict, the jury needed to agree on which income that Fairchild failed to report for each tax year.
The present case is analogous to United States v. Adler, 623 F.2d 1287 (8th Cir. 1980). In that case, the defendant was charged with Medicare fraud for submitting false invoices to Medicare for reimbursement. Id. at 1288. Each count of the indictment concerned a different invoice (comparable to each count of Fairchild's indictment concerning a different tax year). Id. at 1289. Additionally, each invoice had multiple fraudulent line items on it (comparable to evidence of multiple sources of Fairchild's unreported income for each year). Id. at 1290. The defendant challenged the indictment as duplicitous because some of the counts involved invoices with more than one fraudulent line item on them. Id. We rejected the defendant's argument, explaining that "the government charged only one crime in each count of the indictment. There may be more than one piece of evidence to support each count, but that certainly does not make the counts duplicitous." Id. (citations omitted). "In other words, each invoice was a single execution, and the line items on each invoice were merely additional means of pursuing the single execution." United States v. Palazzo, 372 F. App'x 445, 452 (5th Cir. 2010) (per curiam) (citing Adler, 623 F.2d at 1290). Similar to Adler, each one of Fairchild's tax returns was "a single execution," and the multiple sources of unreported income contained in each tax return constituted "multiple means of accomplishing" Fairchild's making of a false statement as to her income and tax liability for a particular tax year. See id.
As the government points out, requiring the jury to decide unanimously whether the unreported income came from Karlen, Pietz, or another source was unnecessary because it was not an essential element of the crime; each source provided alternative pieces of evidence to support each count of the indictment.
Fairchild relies primarily on Duncan in arguing that because each juror could have found a different source of unreported income for each of her tax returns, there was a significant risk of a nonunanimous verdict on each count. See Duncan, 850 F.2d at 1111 (concluding that an indictment alleging separate false statements for one count of violating 26 U.S.C. § 7206 was duplicitous after finding that the "essence of the statute lies in the willful falsity of a statement"). Duncan, however, provides no support. Duncan involved an extremely complex count with what that court considered "a tangible risk of jury confusion." Id. at 1114. The instant case was neither extremely complex nor posed a tangible risk of confusion for the jury.
Even assuming duplicity in the indictment, the district court's instruction cured any potential prejudice created thereby. "Courts have held that the risk of a nonunanimous verdict inherent in a duplicitous count may be cured when the jury is given a limiting instruction that requires it to unanimously find the defendant guilty with respect to at least one distinct act." United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994) (citations omitted). In the present case, the district court gave such a limiting instruction by requiring the jury to "unanimously agree on whether the false matter was regarding Fairchild's income, tax liability owed, or both."
Accordingly, we hold that the district court did not abuse its discretion in instructing the jury.
As readers of this blog know, the sentencing court must compute the sentencing guidelines which produce a sentencing range driven primarily by the tax loss involved (both for counts of conviction and unconvicted relevant conduct) but then have wide discretion under Booker to fashion an appropriate sentence outside the guidelines range. The first step is computing the guidelines range. The Court held that the sentencing court had properly computed the range, including the component parts to get to the range. Specifically, the Court sustained the tax loss calculation and the two-level enhancement for failing to report income in excess of $10,000 from "criminal activity." The sexual services, the Court said, was illegal under state and federal law.
The court explicitly stated, "In deciding your sentence, I look at a variety of things. You had a really hard life as a child. As an adult, you've been a great mom to your kids, and have even taken in a neighbor's child and ended up being the guardian for that child." But the court ultimately gave more weight to other 18 U.S.C. § 3553(a) factors, such as the nature and circumstances of the offense. The court noted that Fairchild has "been a wreck" "on the financial side of things" as evidenced by her continued misrepresentations to banks to obtain loans. Additionally, the court stated that one of its considerations "in deciding a sentence is what responsibility have people taken for their actions to start putting things in order" and found that Fairchild had not yet done so. Specifically, she had failed to file her tax return for the current year, did not file the return the prior year, and had not "paid any Federal income tax over a nine-year time period." The court found this "an indicator of whether [Fairchild has] accepted responsibility and whether [Fairchild is] trying to put things into order and make amends for what's happened, and [the court] d[idn]'t see that." The court noted that Fairchild's crime was a "serious" one and that it had "considered all the factors in 3553(a)(1) through (7), and [it] d[id] not believe there are grounds for a downward variance."
The Court of Appeals held that the sentencing court had not abused its discretion.


text:
The Complainant is Admiral Insurance Services Limited, Cardiff, United Kingdom of Great Britain and Northern Ireland, represented by Hammonds, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Mr. Adam Dicker, Richmond Hill, Ontario, Canada, represented by Dr. John B. Berryhill, United States of America.
The disputed domain name <elephant.com> is registered with Network Solutions, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on March 4, 2005. On March 4, 2005, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name(s) at issue. On March 8, 2005, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 9, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was March�29,�2005. The Response was filed with the Center on March 30, 2005.
The Center appointed Alan L. Limbury, David H. Tatham and David E. Sorkin as panelists in this matter on May 17, 2005. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant filed an unsolicited supplementary submission on May 5, 2005, and the Respondent filed an unsolicited supplementary reply on May 17, 2005. The Rules, paragraph 12 provide that the Panel may in its sole discretion request further statements or documents from either of the parties. Thus, no party has the right to insist upon the admissibility of additional evidence: SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092. It is appropriate to consider the circumstances of each case before deciding whether to admit unsolicited additional submissions: Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd., WIPO Case No. D2000-0802.
The Panel considers that, despite the lateness of the unsolicited submissions, this is a case of discovery by the Complainant of evidence not available to it at the time of its initial submission and of arguments raised by the Respondent that the Complainant could not reasonably have anticipated: See Goldline International, Inc. v. Gold Line, WIPO Case No. D2000-1151. Accordingly the Panel admits the Complainant’s unsolicited submission and, in fairness, the Respondent’s unsolicited reply thereto.
On May 31, 2005, the Panel extended until June 4, 2005, the time for its decision to be delivered to the Center.
The Complainant is a well-known United Kingdom insurance intermediary which derives about 40% of its multi-million pound revenue from online sales of insurance under the “elephant” brand through its website “www.elephant.co.uk”. On July�2,�1999, it obtained registration, based on an application filed on January 12, 1999, for the word ELEPHANT as a trade mark in the U.K. (No.2186124) for motor and non-marine general insurance services in Class 36. It subsequently obtained two other U.K. registrations for that mark (Nos. 2248570A and 2248570B) and made application for registration in Europe (No. 4073201). It has used the trade mark on the Internet since 2000, and has promoted it in the United Kingdom.
The disputed domain name <elephant.com> was previously held by a Mr.�Bradford Oberwager. On February 12, 2004, the Respondent offered to buy it from him for $15,000. By February 14, 2004, he and Mr. Oberwager had agreed the price of $22,500 and over the next few days they made arrangements for the transfer of the money and the transfer of the domain name.
On February 20, 2004, having become aware from a web page to which the domain name led that Mr. Oberwager was offering the disputed domain name for sale for $20,000, the Complainant offered him $18,000 for it. Mr. Oberwager declined, saying he had accepted an offer higher than his asking price and suggesting that if the Complainant were to pay him $32,000, Mr. Oberwager might be able to offer some money to the buyer to “walk away”. The Complainant agreed.
On February 21, 2004, Mr. Oberwager asked the Respondent whether he would be willing to accept $2,500 to let Mr. Oberwager out of the contract. The Respondent declined. By February 24, 2004, the name had been transferred to the Respondent.
On February 27, 2004, Mr. Oberwager reported to the Complainant that he had been unable to convince the buyer to sell the name back to him at a quick profit. He supplied to the Complainant the name and email address of the Respondent.
On February 28, 2004, a Mr. Stuart Clarke sent to the Respondent an email saying he had been given the Respondent’s contact details by Mr. Oberwager and that he was interested in purchasing the domain name at a suitable price. The email concluded with a pro forma statement that it was sent for and on behalf of Admiral Insurance Services Limited. Following a reminder from Mr. Clarke, the Respondent replied on March�5,�2004, that the domain name was not for sale.
Nine months later, on November 29, 2004, Mr. Clarke sent to the Respondent another email, again over the name Admiral Insurance Services Limited, saying: “It has come to my notice that you are the owner of the domain name elephant.com. I would be interested to speak with you with a view to purchasing the domain name…” The Respondent replied: “The domain is not for sale for less than 1 million dollars. 3 offers are currently pending”.
The domain name is identical to the Complainant’s trade marks.
The Respondent has no rights or legitimate interests in respect of the domain name. He has been given no right by the Complainant to use it and the Complainant has no evidence of its use, prior to notice of this dispute, in connection with a bona fide offering of goods or services. The domain name currently directs Internet users to a website with links to websites operated by the Complainant’s competitors in the U.K. The specific links appear to change every time the website is accessed and occasionally include a link to the Complainant’s websites at “www.elephant.co.uk” and “www.admiral.com”.
The domain name was registered and is being used in bad faith. The acquisition from Mr. Oberwager constitutes registration for the purposes of the Policy. The Respondent would have been aware of the discussions between Mr. Oberwager and the Complainant to purchase the domain name and its value to the Complainant. The fact that the Respondent obtained the domain name when the Complainant was in the middle of negotiations to purchase it suggests that he acquired it primarily to sell it to the Complainant. His responses to Mr. Clarke’s emails and the use of the domain name as a portal to a site competing with the Complainant further indicate this. The amount of $1,000,000 was far in excess of any out-of-pocket costs.
Although the Complainant does not believe the Respondent is himself a competitor, the domain name was acquired primarily for the purpose of disrupting the Complainant’s business in the U.K. even though the Respondent is in Canada. By using the domain name to redirect users to insurance websites operated by the Complainant’s competitors, the Respondent is intentionally attempting to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location.
The website “www.highimpactsites.com”, also owned by the Respondent, has a “portfolio” section with a hyperlink to “www.elephant.com” and a description which refers to information about elephants. However, it links to the web site which lists insurance sites.
It should be inferred that the Respondent knew of the Complainant in the U.K. because (i) the Respondent “parked” the domain name on to a site which gave entry to a site advertising competitors of the Complainant; (ii) the Complainant’s “elephant” brand and “elephant.co.uk” website are well known outside the U.K.; and (iii) although the Respondent is based in Canada, all the links on his “elephant.com” website are to insurance companies in the U.K.
The Respondent is a sophisticated Internet professional who would be fully aware of how to link the domain name to the website listing competitors of the Complainant. He has a large number of domain names and has previously engaged in the same type of conduct.
The Complainant seeks transfer to it of the domain name.
The domain name was registered in 1996, prior to the Complainant’s first use of its mark. Panels have differed as to whether the clear priority issue present here is to be considered under “Identity or Confusing Similarity” or under “Bad Faith”.
The domain name elephant.com corresponds to a common word. Hence this is not a case of “inconceivable legitimate use” by another.
The full correspondence between the Respondent and Mr. Oberwager shows that Mr.�Oberwager did not mention the Complainant.
The Respondent is a professional web developer who maintains a large number of websites and domain names for present and future use by himself and his clients. This is not an illegitimate activity.
The Response includes a declaration from the Respondent stating that he is the Principal Officer of High Impact Sites Inc. and the registrant of the disputed domain name; that he acquired the domain name for $22,500 because “elephant” is a common word with value in connection with its common meaning; that he thereafter established a web site providing content on the subject of elephants, with Google Adsense advertisements based upon that content, intended to generate revenue on the basis of related interests expressed by visitors to the web site; that in the fall of 2004, he decided to experiment with varied advertising content, such as jewelry, photography, pet supplies, music downloads and personals, to determine whether additional advertisements would improve revenue; that in October 2004, amongst many communications he received expressing interest in purchasing the domain name, he received one from Mr. Clarke, which he ignored since it made no mention of any legal claim nor any figure; that during a few weeks in December 2004 and January 2005, the domain name was associated with insurance advertisements as he had been rotating through varied subject matter in connection with the domain name; that until receiving the Complaint he had never heard of any company using the word “elephant” as a brand of insurance and that as soon as the Respondent was put on notice of the unintentional and brief infringement he immediately removed the insurance advertisements and restored the original content relating to elephants.
The Respondent submits that, despite the brief appearance of insurance-related links at a time when he was thoroughly unaware of the Complainant’s claim, there is no question that the domain name was used for a bona fide offering of goods and services prior to notification of this dispute.
As to bad faith, it is clear the Respondent did not know of the Complainant nor its claim to the mark when he acquired the domain name, nor did he know of them at any time prior to the Complaint. The brief appearance of insurance-related links is not probative of the Respondent’s intent in registering the domain name, which was subsequently used in connection with a topical web site pertaining to elephants.
The Respondent submits the Complaint has been maintained in bad faith to include reckless and false allegations unsupported by due enquiry and requests that the Complaint be denied.
On May 5, 2005, it came to the Complainant’s attention that the homepage of the website at “www.elephant.com” now contains links to websites that provide insurance products. All of these sites are operated by UK insurance companies and are competitors of the Complainant. This is relevant in relation to whether the domain name is being used in bad faith.
The use of these links refutes the claim by the Respondent that the previous links to insurance sites were innocent. It also contradicts (and shows bad faith) in the statements set out in the Response that there was a “brief association with insurance links” and that “appropriate corrective action” was taken as soon as the Respondent was put on notice of the “unintentional and brief infringement”.
The Respondent’s web site is directed to the subject matter of elephants. A panel displays what are known as Google “Adsense” advertisements, which are purchased by Google advertising customers to be displayed in response to key words appearing in the context of the webpage into which they are incorporated. Their selection is entirely generated by Google, not the operator of the website, who is forbidden by the terms for using Google Adsense advertisements from interfering with Google’s selection.
It is thus not possible for the Respondent to be causing insurance ads to be displayed on the web page to users in the UK and it is incorrect to say that the Respondent is intentionally selecting the advertisments displayed at the website. The Respondent, in Canada, has been utterly unaware of what advertisements are shown in the UK.
The Google Adsense ads are not relevant to the Respondent’s intent under the Policy and do not show bad faith registration or use of the domain name.
The Complainant has shown that advertisers are using the Google Adsense program to display insurance advertisements in connection with the word “elephant”, which are only visible in the UK. That is a matter between the Complainant, Google, and those advertisers. The Respondent has no duty to police the use of trademark in advertisements which the Respondent cannot see and of which he is not aware.
Paragraph�15(a) of the Rules requires the Panel to decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, these rules and any rules and principles of law that it deems applicable.
The differences between Panels on the “priority” issue raised by the Respondent have recently been resolved in favour of the view that paragraph 4(a)(i) does not require the Complainant’s trademark rights to have arisen before the disputed domain name was registered. Rather, this factor is relevant for the purposes of paragraphs 4(a)(ii) and 4(a)(iii) of the Policy: Valve Corporation v. ValveNET, Inc., ValveNET, Inc., Charles Morrin, WIPO Case No. D2005-0038.
Here, although the domain name was registered some years before the Complainant’s first use of the ELEPHANT mark, the transfer of the domain name from Mr.�Oberwager to the Respondent constituted the relevant act of registration for the purposes of this case, since the term “registration” extends beyond the original act of registration and covers subsequent acquisitions of the domain name: See Dixons Group Plc v. Mr. Abu Abdullaah, WIPO Case No. D2000-1406 and the cases there cited.
The Complainant has demonstrated that it has rights in the registered trade mark ELEPHANT in the U.K.
The Panel finds the domain name <elephant.com> to be identical to the Complainant’s registered mark ELEPHANT, many cases having found the “.com” suffix to be inconsequential.
The Complainant has not authorized the Respondent to use its ELEPHANT mark. This establishes the Complainant’s prima facie case on this issue and the burden therefore shifts to the Respondent to provide evidence of its right or legitimate interests under paragraph 4(c): Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753.
Even perfunctory preparations have been held to suffice for this purpose: Shirmax Retail Ltd. v. CES Marketing Group, Inc., eResolution Case AF-0104; Lumena s-ka so.o. v. Express Ventures Ltd., NAF Case No. FA00030000094375) and Royal Bank of Canada v. Xross, eResolution Case No.AF-0133.
The generic character of the mark and the Canadian base of the Respondent afford no ground for a finding that the Respondent was aware of the Complainant’s mark when he acquired the domain name. Nor has the Complainant shown that its mark was promoted in Canada. The Complainant’s assertion that the Respondent acquired the domain name when the Complainant was in the middle of negotiations to purchase it is incorrect since the Complainant’s first contact with Mr. Oberwager took place after the sale to the Respondent had been agreed. In suggesting a buy-back to the Respondent, Mr. Oberwager made no mention of the Complainant.
For these reasons, the Panel finds that the Respondent was unaware of the Complainant and of its rights in the ELEPHANT mark when he acquired the domain name from Mr.�Oberwager.
The Complainant’s communications with the Respondent prior to the Complaint made no mention of nor made any claim in relation to the ELEPHANT mark. The Panel finds that the Respondent became aware of the Complainant’s corporate name on February 28, 2004, but that he did not become aware of the ELEPHANT mark until the Complaint was filed.
Before he became aware of the Complainant’s mark, the Respondent used the domain name in relation to the provision of information about elephants, coupled with advertising unrelated to the Complainant’s business, designed to generate revenue. Subsequently but still prior to his becoming aware of the Complainant’s mark, some of the advertisements displayed on the Respondent’s website were for insurance offered by U.K. companies, being competitors of the Complainant. There have been similar insurance advertisements on the website following the filing of the Complaint.
The Panel considers that the use of a generic domain name to provide information about the genus satisfies the requirements of paragraph 4(c)(i) of the Policy. It is unnecessary to decide whether this is so irrespective of whether a respondent knows of a complainant’s mark prior to acquiring the domain name because here the Panel has found the Respondent had no such knowledge.
In the absence of such knowledge, the additional factor of the display of advertisements, including insurance advertisements, does not change the legitimate character of the Respondent’s activity.
It is unnecessary to decide whether any intentional display by the Respondent of insurance advertisements on his website after becoming aware of the Complainant’s mark could render illegitimate that which was previously legitimate because the Panel accepts that the terms under which Google makes its Adsense advertisements available do not permit the Respondent to control them and that the Respondent cannot be aware of their content as displayed in any particular country.
In Experimental Aircraft Association (EAA) v. EAA.COM, NAF Case No. FA0310000206309, the Panel found that the brief appearance of aviation links on the respondent’s web sites was automatically provided by a pay-per-click search engine provider and was not intended by the respondent. Since there was no evidence that the respondent’s business was in connection with aviation, the respondent had no duty to be aware of the complainant’s mark. Those findings are applicable here.
For these reasons the Panel finds that the Complainant has not established the absence of rights or legitimate interests in respect of the domain name on the part of the Respondent.
The Panel’s finding that the Respondent was unaware of the Complainant or its mark when he acquired the domain name is fatal to any finding of bad faith under any of sub-paragraphs 4(b)(i)-(iii) of the Policy.
A finding of bad faith registration may nevertheless be made where bad faith use within 4(b)(iv) is the only evidence tending to show the purpose for which a domain name was registered. Where, however, there is evidence that the domain name was registered for a permissible purpose, it must be weighed against any evidence of bad faith registration constituted by evidence of bad faith use within 4(b)(iv). It is difficult to imagine circumstances in which, under this approach, subsequent bad faith use within 4(b)(iv) would suffice to prove that a domain name was originally registered in bad faith. See Passion Group Inc. v.Usearch, Inc., eResolution Case No. AF-0250; Viz Communications, Inc., v. Redsun dba www.animerica.com and David Penava, WIPO Case No. D2000-0905, and Yoomedia Dating Limited v. Cynthia Newcomer / Dateline BBS, WIPO Case No. D2004-1085.
Accordingly, even if the Panel were to find that in May 2005, the display of insurance advertisements on the Respondent’s website after knowledge of the Complainant’s mark constituted bad faith use within paragraph 4(b)(iv), that would not displace the Panel’s finding that the domain name was not registered in bad faith in February 2004.
In light of the Panel’s findings, the Respondent’s sophistication as an Internet professional, his ownership of a large number of domain names and any previous similar conduct do not as such establish bad faith registration or use in this case.
The Panel finds that the Complainant has failed to establish this element of its case.

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§ 153A-2. Effect on prior laws and actions taken pursuant to prior laws.
§ 153A-3. Effect of Chapter on local acts.
§ 153A-5. Statutory references deemed amended to conform to Chapter.
§§ 153A-6 through 153A-9. Reserved for future codification purposes.
§ 153A-10. State has 100 counties.
§ 153A-12. Exercise of corporate power.
§ 153A-14. Grants and loans from other governments.
§ 153A-15. Consent of board of commissioners necessary in certain counties before land may be condemned or acquired by a unit of local government outside the county.
§ 153A-15.1. Agreement to make payment in lieu of future ad valorem taxes required before wetlands acquisition by a unit of local government.
§ 153A-16. Reserved for future codification purposes.
§ 153A-18. Uncertain or disputed boundary.
§ 153A-19. Establishing and naming townships.
§ 153A-20. Map of electoral districts.
§ 153A-21. Repealed by Session Laws 1973, c. 884.
§ 153A-22. Redefining electoral district boundaries.
§§ 153A-23 through 153A-24. Reserved for future codification purposes.
§ 153A-25. Qualifications for appointive office.
§ 153A-26. Oath of office.
§ 153A-27. Vacancies on the board of commissioners.
§ 153A-27.1. Vacancies on board of commissioners in certain counties.
§ 153A-28. Compensation of board of commissioners.
§ 153A-29. Repealed by Session Laws 1975, c. 514, s. 17.
§§ 153A-30 through 153A-33. Reserved for future codification purposes.
§ 153A-34. Structure of boards of commissioners.
§§ 153A-35 through 153A-38. Reserved for future codification purposes.
§ 153A-39. Selection of chairman and vice-chairman; powers and duties.
§ 153A-40. Regular and special meetings.
§ 153A-42. Minutes to be kept; ayes and noes.
§ 153A-44. Members excused from voting.
§ 153A-45. Adoption of ordinances.
§ 153A-49. Code of ordinances.
§ 153A-50. Pleading and proving county ordinances.
§ 153A-51. Reserved for future codification purposes.
§ 153A-52. Conduct of public hearing.
§ 153A-52.1. Public comment period during regular meetings.
§ 153A-54: Reserved for future codification purposes.
§ 153A-55: Reserved for future codification purposes.
§ 153A-56: Reserved for future codification purposes.
§ 153A-57: Reserved for future codification purposes.
§ 153A-59. Implementation when board has members serving a combination of four- and two-year terms.
§ 153A-60. Initiation of alterations by resolution.
§ 153A-61. Submission of proposition to voters; form of ballot.
§ 153A-62. Effective date of any alteration.
§ 153A-63. Filing copy of resolution.
§ 153A-64. Filing results of election.
§§ 153A-65 through 153A-75. Reserved for future codification purposes.
§ 153A-76. Board of commissioners to organize county government.
§ 153A-77. Authority of boards of commissioners in certain counties over commissions, boards, agencies, etc.
§ 153A-77.1. Single portal of entry.
§ 153A-78. Reserved for future codification purposes.
§ 153A-79. Reserved for future codification purposes.
§ 153A-80. Reserved for future codification purposes.
§ 153A-81. Adoption of county-manager plan; appointment or designation of manager.
§ 153A-82. Powers and duties of manager.
§ 153A-83. Acting county manager.
§ 153A-84. Interim county manager.
§§ 153A-85 through 153A-86. Reserved for future codification purposes.
§ 153A-87. Administration in counties not having managers.
§ 153A-88. Acting department heads.
§ 153A-89. Interim department heads.
§§ 153A-90 through 153A-91. Reserved for future codification purposes.
§ 153A-94. Personnel rules; office hours, workdays, and holidays.
§ 153A-94.1. (See note on condition precedent) Smallpox vaccination policy.
§ 153A-94.2. Criminal history record checks of employees permitted.
§ 153A-96. Participation in the Social Security Act.
§ 153A-97. Defense of officers, employees and others.
§ 153A-98. Privacy of employee personnel records.
§ 153A-99. County employee political activity.
§ 153A-100. Reserved for future codification purposes.
§ 153A-101. Board of commissioners to direct fiscal policy of the county.
§ 153A-102. Commissioners to fix fees.
§ 153A-102.1. Electronic notice of new fees and fee increases; public comment period.
§ 153A-103. Number of employees in offices of sheriff and register of deeds.
§ 153A-104. Reports from officers, employees, and agents of the county.
§§ 153A-105 through 153A-110. Reserved for future codification purposes.
§ 153A-111. Appointment; powers and duties.
§§ 153A-112 through 153A-113. Reserved for future codification purposes.
§§ 153A-115 through 153A-120. Reserved for future codification purposes.
§ 153A-121. General ordinance-making power.
§ 153A-122. Territorial jurisdiction of county ordinances.
§ 153A-123. Enforcement of ordinances.
§ 153A-124. Enumeration not exclusive.
§ 153A-125. Regulation of solicitation campaigns, flea markets and itinerant merchants.
§ 153A-126. Regulation of begging.
§ 153A-127. Abuse of animals.
§ 153A-128. Regulation of explosive, corrosive, inflammable, or radioactive substances.
§ 153A-131. Possession or harboring of dangerous animals.
§ 153A-132. Removal and disposal of abandoned and junked motor vehicles.
§ 153A-132.1. To provide for the removal and disposal of trash, garbage, etc.
§ 153A-132.2. Regulation, restraint and prohibition of abandonment of junked motor vehicles.
§ 153A-134. Regulating and licensing businesses, trades, etc.
§ 153A-135. Regulation of places of amusement.
§ 153A-136. Regulation of solid wastes.
§ 153A-137: Repealed by Session Laws 2006-151, s. 10, effective January 1, 2007.
§ 153A-138. Registration of mobile homes, house trailers, etc.
§ 153A-139. Regulation of traffic at parking areas and driveways.
§ 153A-140. Abatement of public health nuisances.
§ 153A-140.2. Annual notice to chronic violators of public nuisance ordinance.
§ 153A-141: Repealed by Session Laws 1995, c. 501. s. 3.
§ 153A-143. Regulation of outdoor advertising.
§ 153A-144. Limitations on regulating solar collectors.
§ 153A-145: Reserved for future codification purposes.
§ 153A-146. General power to impose taxes.
§ 153A-147. Remedies for collecting taxes other than property taxes.
§ 153A-148.1. Disclosure of certain information prohibited.
§ 153A-149. Property taxes; authorized purposes; rate limitation.
§ 153A-150. Reserve for reappraisal.
§ 153A-152. Privilege license taxes.
§ 153A-152.1. Privilege license tax on low-level radioactive and hazardous waste facilities.
§ 153A-154: Repealed by Session Laws 2006-151, s. 11, effective January 1, 2007.
§ 153A-154.1. Uniform penalties for local meals taxes.
§ 153A-155. Uniform provisions for room occupancy taxes.
§ 153A-156. Gross receipts tax on short-term leases or rentals.
§ 153A-156.1. (For effective date, see note) Heavy equipment gross receipts tax in lieu of property tax.
§ 153A-157: Recodified as § 153A-158.1(a) by Session Laws 1995, c. 17, s. 15(a).
§ 153A-158. Power to acquire property.
§ 153A-158.1. Acquisition and improvement of school property.
§ 153A-158.2. Acquisition and improvement of community college property.
§§ 153A-159 through 153A-162. Repealed by Session Laws 1981, c. 919, s. 20.
§ 153A-163. Acquisition of property at a judicial sale, execution sale, or sale pursuant to a power of sale; disposition of such property.
§§ 153A-166 through 153A-168. Reserved for future codification purposes.
§ 153A-169. Care and use of county property; sites of county buildings.
§ 153A-170. Regulation of parking on county property.
§§ 153A-171 through 153A-175. Reserved for future codification purposes.
§ 153A-176. Disposition of property.
§ 153A-177. Reconveyance of property donated to a local government.
§ 153A-178. Disposition of county property for a State psychiatric hospital.
§§ 153A-179 through 153A-184. Reserved for future codification purposes.
§ 153A-185. Authority to make special assessments.
§ 153A-186. Bases for making assessments.
§ 153A-187. Corner lot exemptions.
§ 153A-188. Lands exempt from assessment.
§ 153A-189. State participation in improvement projects.
§ 153A-190. Preliminary resolution; contents.
§ 153A-191. Notice of preliminary resolution.
§ 153A-192. Hearing on preliminary resolution; assessment resolution.
§ 153A-193. Determination of costs.
§ 153A-194. Preliminary assessment roll; publication.
§ 153A-195. Hearing on preliminary assessment roll; revision; confirmation; lien.
§ 153A-196. Publication of notice of confirmation of assessment roll.
§ 153A-197. Appeal to the General Court of Justice.
§ 153A-199. Payment of assessments in full or by installments.
§ 153A-200. Enforcement of assessments; interest; foreclosure; limitations.
§ 153A-201. Authority to hold assessments in abeyance.
§ 153A-202. Assessments on property held by tenancy for life or years; contribution.
§ 153A-203. Lien in favor of a cotenant or joint owner paying special assessments.
§ 153A-204. Apportionment of assessments.
§ 153A-205. Improvements to subdivision and residential streets.
§ 153A-206. Street light assessments.
§ 153A-207: Reserved for future codification purposes.
§ 153A-208: Reserved for future codification purposes.
§ 153A-209: Reserved for future codification purposes.
§ 153A-210: Reserved for future codification purposes.
§ 153A-210.1. (Expires July 1, 2013) Purpose.
§ 153A-210.2. (Expires July 1, 2013) Assessments.
§ 153A-210.3. (Expires July 1, 2013) Petition required.
§ 153A-210.4. (Expires July 1, 2013) Financing a project for which an assessment is imposed.
§ 153A-210.5. (Expires July 1, 2013) Payment of assessments by installments.
§ 153A-210.6. (Expires July 1, 2013) Revenue bonds.
§ 153A-210.7. (Expires July 1, 2013) Project implementation.
§ 153A-211. Training and development programs for law enforcement.
§ 153A-212. Cooperation in law-enforcement matters.
§ 153A-212.1. Resources to protect the public.
§ 153A-212.2. Neighborhood crime watch programs.
§ 153A-213. Reserved for future codification purposes.
§ 153A-214. Reserved for future codification purposes.
§ 153A-215. Reserved for future codification purposes.
§ 153A-218. County confinement facilities.
§ 153A-219. District confinement facilities.
§ 153A-220. Jail and detention services.
§ 153A-221.1. Standards and inspections.
§ 153A-222. Inspections of local confinement facilities.
§ 153A-223. Enforcement of minimum standards.
§ 153A-224. Supervision of local confinement facilities.
§ 153A-225. Medical care of prisoners.
§ 153A-225.1. Duty of custodial personnel when prisoners are unconscious or semiconscious.
§ 153A-226. Sanitation and food.
§ 153A-227: Repealed by Session Laws 1983, c. 745, s. 9.
§ 153A-228. Separation of sexes.
§ 153A-229. Jailers' report of jailed defendants.
§ 153A-230.2. Creation of Satellite Jail/Work Release Unit Fund.
§ 153A-230.3. Basic requirements for satellite jail/work release units.
§ 153A-230.5. Satellite jails/work release units built with non-State funds.
§§ G.S. 153A-231 through 153A-232. Reserved for future codification purposes.
§ 153A-233. Fire-fighting and prevention services.
§ 153A-235: Repealed by Session Laws 1989, c. 681, s. 14.
§ 153A-236. Honoring deceased or retiring firefighters.
§ 153A-237. Reserved for future codification purposes.
§ 153A-238. Public road defined for counties.
§ 153A-239: Repealed by Session Laws 1993, c. 62, s. 2.
§ 153A-239.1. Naming roads and assigning street numbers in unincorporated areas for counties.
§ 153A-240: Repealed by Session Laws 1993, c. 62, s. 4.
§ 153A-241. Closing public roads or easements.
§ 153A-242. Regulation or prohibition of fishing from bridges.
§ 153A-243. Authorizing bridges over navigable waters.
§ 153A-244. Railroad revitalization programs.
§ 153A-245. Regulation of golf carts on streets, roads, and highways.
§ 153A-246. Reserved for future codification purposes.
§ 153A-247. Provision for public health and mental health.
§§ 153A-251 through 153A-254. Reserved for future codification purposes.
§ 153A-255. Authority to provide social service programs.
§ 153A-257. Legal residence for social service purposes.
§ 153A-258. Reserved for future codification purposes.
§ 153A-259. Counties authorized to contract with other entities for health and social services.
§ 153A-260. Reserved for future codification purposes.
§ 153A-261. Declaration of State policy.
§ 153A-262. Library materials defined.
§ 153A-263. Public library systems authorized.
§ 153A-264. Free library services.
§ 153A-265. Library board of trustees.
§ 153A-266. Powers and duties of trustees.
§ 153A-267. Qualifications of chief librarian; library employees.
§ 153A-268. Financing library systems.
§ 153A-269. Title to library property.
§ 153A-270. Joint libraries; contracts for library services.
§ 153A-271. Library systems operated under local acts brought under this Article.
§ 153A-272. Designation of library employees to register voters.
§ 153A-273. Reserved for future codification purposes.
§ 153A-274. Public enterprise defined.
§ 153A-275. Authority to operate public enterprises.
§ 153A-276. Financing public enterprises.
§ 153A-277. Authority to fix and enforce rates.
§ 153A-278. Joint provision of enterprisory services.
§ 153A-279. Limitations on rail transportation liability.
§ 153A-280. Public enterprise improvements.
§ 153A-281. Reserved for future codification purposes.
§ 153A-282. Reserved for future codification purposes.
§ 153A-283. Nonliability for failure to furnish water or sewer services.
§ 153A-284. Power to require connections.
§ 153A-285: Repealed by Session Laws 1993, c. 348, s. 4.
§ 153A-286. Law with respect to riparian rights not changed.
§ 153A-287: Repealed by Session Laws 1993, c. 348, s. 5.
§ 153A-288. Venue for actions by riparian owners.
§ 153A-289. Reserved for future codification purposes.
§ 153A-290. Reserved for future codification purposes.
§ 153A-291. Cooperation between the Department of Transportation and any county in establishing or operating solid waste disposal facilities.
§ 153A-292. County collection and disposal facilities.
§ 153A-293. (See editor's note) Collection of fees for solid waste disposal facilities and solid waste collection services.
§ 153A-294. Solid waste defined.
§§ G.S. 153A-295 through 153A-299. Reserved for future codification purposes.
§§ 153A-299.1 through 153A-299.6: Repealed by Session Laws 1991 (Regular Session, 1992), c. 1013, 5.
§ 153A-300. Title; effective date.
§ 153A-301. Purposes for which districts may be established.
§ 153A-302. Definition of service districts.
§ 153A-303. Extension of service districts.
§ 153A-304. Consolidation of service districts.
§ 153A-304.1. Reduction in district after annexation.
§ 153A-304.2. Reduction in district after annexation to Chapter 69 fire district.
§ 153A-304.3. Changes in adjoining service districts.
§ 153A-304.4. Reduction in law enforcement service district after annexation.
§ 153A-305. Required provision or maintenance of services.
§ 153A-306. Abolition of service districts.
§ 153A-307. Taxes authorized; rate limitation.
§ 153A-309. EMS services in fire protection districts.
§ 153A-309.1. Reserved for future codification purposes.
§ 153A-309.2. Rate limitation in certain districts - Alternative procedure for fire protection service districts.
§ 153A-309.3. Rate limitation in certain districts - Fire protection service districts for industrial property.
§ 153A-310. Rate limitation in certain districts - Alternative procedure for ambulance and rescue districts.
§ 153A-311. Purposes for which districts may be established.
§ 153A-312. Definition of research and production service district.
§ 153A-314. Extension of service districts.
§ 153A-314.1. Removal of territory from service districts.
§ 153A-315. Required provision or maintenance of services.
§ 153A-316. Abolition of service districts.
§ 153A-317. Taxes authorized; rate limitation.
§§ 153A-317.1 through 153A-317.10: Reserved for future codification purposes.
§ 153A-317.11. Purpose and nature of districts.
§ 153A-317.12. Definition of economic development and training district.
§ 153A-317.14. Extension of economic development and training districts.
§ 153A-317.15. Required provision or maintenance of skills training center.
§ 153A-317.16. Abolition of economic development and training districts.
§ 153A-317.17. Taxes authorized; rate limitation.
§ 153A-318. Reserved for future codification purposes.
§ 153A-319. Reserved for future codification purposes.
§ 153A-323. Procedure for adopting, amending, or repealing ordinances under this Article and Chapter 160A, Article 19.
§ 153A-324. Enforcement of ordinances.
§ 153A-325. Submission of statement concerning improvements.
§ 153A-326. Building setback lines.
§ 153A-327. Reserved for future codification purposes.
§ 153A-328. Reserved for future codification purposes.
§ 153A-329. Reserved for future codification purposes.
§ 153A-331. Contents and requirements of ordinance.
§ 153A-332. Ordinance to contain procedure for plat approval; approval prerequisite to plat recordation; statement by owner.
§ 153A-333. Effect of plat approval on dedications.
§ 153A-334. Penalties for transferring lots in unapproved subdivisions.
§ 153A-336. Appeals of decisions on subdivision plats.
§ 153A-337. Reserved for future codification purposes.
§ 153A-338. Reserved for future codification purposes.
§ 153A-339. Reserved for future codification purposes.
§ 153A-340. Grant of power.
§ 153A-341. Purposes in view.
§ 153A-341.1. Zoning regulations for manufactured homes.
§ 153A-341.2. Reasonable accommodation of amateur radio antennas.
§ 153A-342. Districts; zoning less than entire jurisdiction.
§ 153A-343. Method of procedure.
§ 153A-344. Planning board; zoning plan; certification to board of commissioners.
§ 153A-345. Board of adjustment.
§ 153A-346. Conflict with other laws.
§ 153A-347. Part applicable to buildings constructed by the State and its subdivisions; exception.
§ 153A-348. Statute of limitations.
§ 153A-349. Appeals in the nature of certiorari.
§ 153A-349.1. Authorization for development agreements.
§ 153A-349.3. Local governments authorized to enter into development agreements; approval of governing body required.
§ 153A-349.4. Developed property must contain certain number of acres; permissible durations of agreements.
§ 153A-349.6. What development agreement must provide; what it may provide; major modification requires public notice and hearing.
§ 153A-349.7. Law in effect at time of agreement governs development; exceptions.
§ 153A-349.8. Periodic review to assess compliance with agreement; material breach by developer; notice of breach; cure of breach or modification or termination of agreement.
§ 153A-349.9. Amendment or cancellation of development agreement by mutual consent of parties or successors in interest.
§ 153A-349.10. Validity and duration of agreement entered into prior to change of jurisdiction; subsequent modification or suspension.
§ 153A-349.11. Developer to record agreement within 14 days; burdens and benefits inure to successors in interest.
§ 153A-349.12. Applicability to local government of constitutional and statutory procedures for approval of debt.
§ 153A-349.13. Relationship of agreement to building or housing code.
§ 153A-349.50. Purpose and compliance with federal law.
§ 153A-349.52. Construction of wireless facilities and wireless support structures.
§ 153A-349.53. Collocation of wireless facilities.
§ 153A-351. Inspection department; certification of electrical inspectors.
§ 153A-351.1. Qualifications of inspectors.
§ 153A-352. Duties and responsibilities.
§ 153A-353. Joint inspection department; other arrangements.
§ 153A-355. Conflicts of interest.
§ 153A-356. Failure to perform duties.
§ 153A-358. Time limitations on validity of permits.
§ 153A-359. Changes in work.
§ 153A-360. Inspections of work in progress.
§ 153A-362. Revocation of permits.
§ 153A-363. Certificates of compliance.
§ 153A-364. Periodic inspections for hazardous or unlawful conditions.
§ 153A-365. Defects in buildings to be corrected.
§ 153A-366. Unsafe buildings condemned.
§ 153A-367. Removing notice from condemned building.
§ 153A-368. Action in event of failure to take corrective action.
§ 153A-369. Order to take corrective action.
§ 153A-370. Appeal; finality of order not appealed.
§ 153A-371. Failure to comply with order.
§ 153A-372.1. Ordinance authorized as to repair, closing, and demolition of nonresidential buildings or structures; order of public officer.
§ 153A-373. Records and reports.
§ 153A-375. Establishment of fire limits.
§ 153A-376. Community development programs and activities.
§ 153A-377. Acquisition and disposition of property for redevelopment.
§ 153A-378. Low- and moderate-income housing programs.
§§ G.S. 153A-379 through 153A-390. Reserved for future codification purposes.
§ 153A-391. Creation; admission of new members.
§ 153A-392. Contents of resolution.
§ 153A-393. Withdrawal from commission.
§ 153A-394. Organization of the commission.
§ 153A-395. Powers and duties.
§ 153A-398. Regional planning and economic development commissions.
§§ 153A-399 through 153A-400. Reserved for future codification purposes.
§ 153A-402. Purposes of a commission.
§ 153A-403. Content of concurrent resolutions.
§ 153A-404. Powers of a commission.
§ 153A-405. Referendum; General Assembly action.
§§ 153A-406 through 153A-420. Reserved for future codification purposes.
§ 153A-421. Definitions; applicability; creation of authorities.
§ 153A-422. Purposes of an authority.
§ 153A-423. Membership; board; delegates.
§ 153A-424. Contents of charter.
§ 153A-425. Organization of authorities.
§ 153A-426. Withdrawal from an authority.
§ 153A-427. Powers of an authority.
§ 153A-428. Fiscal accountability; support from other governments.
§ 153A-429. Long-term contract permitted by and with an authority.
§ 153A-430. Compliance with other law.
§ 153A-431. Issuance of revenue bonds and notes.
§§ 153A-433 through 153A-434: Reserved for future codification purposes.
§ 153A-435. Liability insurance; damage suits against a county involving governmental functions.
§ 153A-436. Photographic reproduction of county records.
§ 153A-437. Assistance to historical organizations.
§ 153A-438. Beach erosion control and flood and hurricane protection works.
§ 153A-439. Support of extension activities; personnel rules for extension employees.
§ 153A-440. Promotion of soil and water conservation work.
§ 153A-440.1. Watershed improvement programs; drainage and water resources development projects.
§ 153A-443. Redesignation of site of "courthouse door," etc.
§ 153A-444. Parks and recreation.
§ 153A-445. Miscellaneous powers found in Chapter 160A.
§ 153A-446. County may offer reward for information as to persons damaging county property.
§ 153A-447. Certain counties may appropriate funds to Western North Carolina Development Association, Inc.
§ 153A-448. Mountain ridge protection.
§ 153A-449. Contracts with private entities.
§ 153A-450. Contracts for construction of satellite campuses of community colleges.
§ 153A-452. Restriction of certain forestry activities prohibited.
§ 153A-453. Quarterly reports by Mental Health, Developmental Disabilities, and Substance Abuse Services area authority or county program.
§ 153A-455. Revolving loan program for energy improvements.
§ 153A-456. Reserved for future codification purposes.
§ 153A-457. Reserved for future codification purposes.
§ 153A-458. Reserved for future codification purposes.
§ 153A-459. Reserved for future codification purposes.
§ 153A-460. Reserved for future codification purposes.
§ 153A-461. Reserved for future codification purposes.
§ 153A-462. Reserved for future codification purposes.
§ 153A-463. Reserved for future codification purposes.
§ 153A-464. Reserved for future codification purposes.
§ 153A-465. Reserved for future codification purposes.
§ 153A-466. Reserved for future codification purposes.
§ 153A-467. Reserved for future codification purposes.
§ 153A-468. Reserved for future codification purposes.
§ 153A-469. Reserved for future codification purposes.
§ 153A-470. Reserved for future codification purposes.
§ 153A-472.1. Property tax levy.


SUMMARY: This item presents for first reading and filing authorization proposed amendment to 19 TAC Chapter 74, Curriculum Requirements, Subchapter A, Required Curriculum, §74.5, Academic Achievement Record (Transcript), to update the rule to align with recent changes to graduation and instructional requirements.
STATUTORY AUTHORITY: Texas Education Code (TEC), §§7.102(c)(13), 28.0023, and 28.025, as amended by Senate Bill (SB) 30, 85th Texas Legislature, Regular Session, 2017.
TEC, §7.102(c)(13), requires the SBOE to adopt transcript forms and standards for differentiating high school performance for purposes of reporting academic achievement under TEC, §28.025.
TEC, §28.0023, requires the SBOE to adopt rules to require instruction in cardiopulmonary resuscitation for students in Grades 7-12.
TEC, §28.025, as amended by SB 30, 85th Texas Legislature, Regular Session, 2017, requires the SBOE to adopt rules to include the instruction on proper interaction with peace officers during traffic stops and other in-person encounters in one or more courses in the required curriculum for students in Grades 9-12.
EFFECTIVE DATE: The proposed effective date of the proposed amendment to 19 TAC §74.5 is August 27, 2018.
PREVIOUS BOARD ACTION: The SBOE adopted 19 TAC §74.5 effective June 18, 2014, to align with legislation passed by the 83rd Texas Legislature, Regular Session, 2013. In April 2016, the SBOE gave final approval to proposed amendment to 19 TAC §74.5 to align with legislation passed by the 84th Texas Legislature, 2015.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: The 83rd Texas Legislature, Regular Session, 2013, passed House Bill (HB) 5, amending the TEC, §28.025, to change the high school graduation programs from the minimum, recommended, and advanced high school programs to one foundation high school program with endorsements to increase flexibility in graduation requirements for students.
In January 2014, the SBOE adopted rules to implement the Foundation High School Program, effective July 8, 2014. Under the Foundation High School Program, a specific speech course is not a requirement to graduate; alternatively, to satisfy the speech requirement, a student must demonstrate proficiency, as determined by the district in which the student is enrolled, in a set of speech-related skills: delivering clear verbal messages; choosing effective nonverbal behaviors; listening for desired results; applying valid critical-thinking and problem-solving processes; and identifying, analyzing, developing, and evaluating communication skills needed for professional and social success in interpersonal situations, group interactions, and personal and professional presentations. In April 2014, the SBOE gave final approval for proposed revisions to 19 TAC Chapter 74, Subchapter A, to align with the requirements of HB 5, including changes to the required content for the academic achievement records/transcripts and diplomas.
In 2013, the 83rd Texas Legislature also passed HB 897, amending the TEC, §28.0023, to require that the SBOE include instruction in cardiopulmonary resuscitation (CPR) for students in Grades 7-12. The legislation also requires school districts and open-enrollment charter schools to provide instruction in CPR and for students to receive the CPR instruction at least once before graduation. The legislation specifies that the instruction may be provided as part of any course.
The 84th Texas Legislature, Regular Session, 2015, passed HB 181, amending the TEC, §28.025(c-1), (c-5), and (e-1), to remove the requirement that school districts and charter schools identify endorsements and performance acknowledgments on high school diplomas. Districts must still include this information on high school academic achievement records/transcripts. The SBOE approved proposed amendment to 19 TAC §74.5 to align the rule for the academic achievement records with the requirements of HB 181 in April 2016.
The 85th Texas Legislature, Regular Session, 2017, passed SB 30, also known as the Community Safety Education Act. The legislation adds TEC, §28.012, to require the SBOE to enter into a memorandum of understanding with the Texas Commission on Law Enforcement (TCOLE) to establish the respective responsibilities of each agency in developing required instruction, including curriculum and instructional modules, on proper interaction with peace officers during traffic stops and other in-person encounters. SB 30 also requires the SBOE to adopt rules to include the instruction on proper interaction with peace officers during traffic stops and other in-person encounters in one or more courses in the required curriculum for students in Grades 9-12. At its November 2017 meeting, the Committee of the Full Board discussed the requirements of the new legislation and the board's rulemaking responsibility. First reading and filing authorization of proposed requirements for instruction on proper interaction with peace officers will be presented at a future SBOE meeting.
The proposed amendment to 19 TAC Chapter 74, Curriculum Requirements, Subchapter A, Required Curriculum, §74.5, Academic Achievement Record (Transcript), shown as Attachment II, would update the rule for the academic achievement records to document the completion of requirements for speech, CPR instruction (if the instruction is provided in Grades 9-12), and instruction on proper interaction with law enforcement.
The proposed amendment was not presented as a discussion item. The SBOE, however, may wish to consider this item for first reading and filing authorization as authorized under its operating procedures. Therefore, this item is presented for first reading and filing authorization consideration at this meeting. It is recommended the SBOE consider this item for first reading and filing authorization to ensure sufficient time is provided to update student information systems used to transmit the academic achievement record between school districts and Texas colleges and universities, the Texas Records Exchange (TREx) system, and local student information systems.
FISCAL IMPACT: The Texas Education Agency (TEA) has determined that there may be costs to districts and charter schools associated with required updates to local student information systems. These may include the need for professional development and amendments to district-developed databases. Since the design and format of and data collection for the academic achievement record (high school transcript) are made at the local district level, it is difficult to estimate the fiscal impact on any given district.
There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required. There is no effect on local economy for the first five years that the proposed amendment is in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed amendment does not impose a cost on regulated persons and, therefore, is not subject to Texas Government Code, §2001.0045.
GOVERNMENT GROWTH IMPACT: TEA staff has determined that the proposed amendment does not have a government growth impact pursuant to Texas Government Code, §2001.0221.
PUBLIC AND STUDENT BENEFIT: Benefits include improved documentation of requirements on the academic achievement record and the ability to more effectively transmit that information between school districts.
PROCEDURAL AND REPORTING IMPLICATIONS: The proposed amendment would require districts to report the completion of certain requirements and instruction on the academic achievement record.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed amendment would have no new locally maintained paperwork requirements.
PUBLIC COMMENTS: The official public comment period will begin when the proposal, approved for first reading and filing authorization, is published in the Texas Register.
OTHER COMMENTS AND RELATED ISSUES: A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register.
Proposed amendments to 19 TAC Chapter 74, Curriculum Requirements, Subchapter B, Graduation Requirements, are presented for second reading and final adoption as a separate item in this agenda.
Approve for first reading and filing authorization proposed amendment to 19 TAC Chapter 74, Curriculum Requirements, Subchapter A, Required Curriculum, §74.5, Academic Achievement Record (Transcript).


How Does a Chapter 13 Case End Without a Discharge?
For our readers playing along at home, the basic rule with mortgage modification in bankruptcy is as follows: first mortgages on a debtors primary residence cannot be modified by filing for bankruptcy, however, second, third and other junior liens can be modified or “stripped” by filing for Chapter 13 bankruptcy. Stripping a mortgage, removes the lien and treats the remaining mortgage debt as unsecured, often paid back at far less than 100% through a chapter 13 payment plan.
In order for a mortgage to be stripped, the debtor must prove that their home is underwater based on the outstanding balance of their first mortgage. To put it another way, you qualify for lien stripping in chapter 13 bankruptcy if an appraisal shows you owe more on your first mortgage than your home is worth. If this is the case, your junior mortgages are considered “under secured” and are vulnerable to the lien stripping process.
the court shall not grant a discharge of debts provided for in the plan… if the debtor has received the discharge in a case filed under Chapter 7… during the four-year period preceding the date of the order for relief.
Section 1328 does not provide that the court may not confirm a plan for a debtor who is not eligible to receive the discharge in fact, neither section 1325 nor any other provisions of chapter 13 provides a plan may only be confirmed for a debtor who is eligible to receive the discharge. Because the bankruptcy code does not expressly make this distinction, this court therefore, includes that Chapter 13 debtor may strip off a wholly unsecured mortgage lien entreat the claimant’s unsecured under a plan whether or not such a debtor is eligible to receive a discharge.
Towards the end of the opinion, the court addressed the question that is on most attorneys minds when they hear of the decision. How can a chapter 13 case end without a discharge? The case is closed rather than dismissed so that the relief provided by the bankruptcy filing is not wiped away at the end of the plan.
Some cases in this chapter 13 lien strip off area note that if a case is dismissed then, under § 349, any lien voided under § 506(d) shall be reinstated. However, § 349 is not applicable to lien stripping under § 506(a) where a debtor completes plan payments because that case will be closed, not dismissed. Further, while § 349(b)(1)(C) does provide for the reinstatement of a lien voided under § 506(d) if a case is dismissed, a stripped off lien is not voided under § 506(d), but is classified under § 506(a) as unsecured.
Because of his previous chapter 7 bankruptcy, the debtor eliminated his personal liability for the second mortgage. The subsequent chapter 13 bankruptcy eliminated the second mortgage lien, effectively wiping out any liability the debtor may have had on the second mortgage outside of his chapter 13 plan payments.


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You've probably done interim probation without ever knowing it. If you haven't it is a worthwhile option from all perspectives. What is Interim Probation? Well, in a nutshell, it is when the sentencing court elects to defer sentencing while the defendant obtains some sort of treatment. If the defendant successfully completes his or her treatment, the court will thereafter impose an agreed upon sentence. If he or she fails to complete the agreed upon treatment, the court is free to sentence in an alternative manner. Interim Probation, therefore, is one of those under used tools that has much to offer for each side. For the defendant, it provides a way for the defendant to prove to the court that he or she can be successfully rehabilitated in a manner far less restrictive than a sentence of incarceration. For the court, it offers means of giving a somewhat recalcitrant defendant a chance without taking the risk inherent in a sentence of straight probation. Further, it provides the court with a means of placing a defendant into treatment without the need for a probationary sentence. Likewise, Interim Probation offers the People a means of getting the defendant into treatment quickly. In some cases, it can even be used as a means of calling the defendant's bluff. By that we mean that while most defendants will jump at the chance for treatment and probation, unfortunately, a significant percentage will fail. Interim Probation allows the People to separate the wheat from the chaff long before sentencing by giving a defendant, who is truly earnest in his or her convictions, a chance to step up to the plate and make good.
Interim Probation has not always been permissible. In People v. Rodney E., (1991) 77 N.Y.2d 672, 569 N.Y.S.2d 920, 572 N.E.2d 603, the Onondaga County Court, accepted a plea of guilty but deferred sentencing for a period of three months. During this period, it placed the defendant in a program of what it called "interim probation." Thereafter, the court determined that the defendant had failed to comply with the terms and conditions of his interim probation and sentenced him to a term in a correctional facility. Upon his appeal, to the New York State Court of Appeals, the court held that the trial court lacked the requisite statutory authority to impose interim probation after conviction but prior to sentencing and reversed. At the core, of the problem, was that probation was only available after the defendant had been convicted and sentenced accordingly. Since in Rodney E., the defendant had not been convicted and sentenced, the sentence of incarceration was vacated and the defendant was remanded for resentencing.
Rodney E. involved supervision by the probation department. What if the defendant were to be sentenced to obtain treatment through the auspices of a private treatment agency? Is the holding of Rodney E. so restrictive so as to be tightly held to its own unique facts? In a word, yes. In People v. Avery, 85 N.Y.2d 503, 626 N.Y.S.2d 726, 650 N.E.2d 384 (1995), defendant pleaded guilty to felony counts of two separate indictments, charging criminal sale and criminal possession of a controlled substance. Under the terms of the plea agreement, Supreme Court promised to delay imposition of sentence to allow defendant to enter the Fortune Society Drug Rehabilitation Program. Furthermore, if defendant successfully completed the program, the agreement called for the felony pleas to be vacated and the defendant would be permitted to plead guilty to a lesser charge. In the event that the defendant failed to successfully complete the program, the defendant was to receive sentences of imprisonment on each indictment to run concurrently. As luck would have it, the defendant did not successfully complete the Fortune Society Program and was sentenced accordingly.
On appeal, he argued that the agreement constituted illegal interim probation and was indistinguishable from that presented in Rodney E. In an opinion by Judge Ciparik, the court disagreed. At the heart of the difference was that the agreement in Rodney E. called for probation supervision and in Avery the mandated treatment was by a private provider.
Our decision in Rodney E. was premised on the statutory powers of the Probation Department and, contrary to defendant's contention, was not intended to rule out analogous dispositions involving, as in this case, placement of an individual under the supervision of a private agency. Because the instant case does not involve the supervision of the Probation Department or implicate its statutory powers, and the conditions imposed fall within the court's power to oversee plea bargains tailored to individual circumstances, we now affirm.
4. Pre-sentence conditions. After conviction and prior to sentencing the court may adjourn sentencing to a subsequent date and order the defendant to comply with any of the conditions contained in paragraphs (a) through (f) and paragraph (1) of subdivision two of section 65.10 of the penal law. In imposing sentence, the court shall take into consideration the defendant's record of compliance with pre-sentence conditions ordered by the court.
Thus, by virtue of the power conferred upon the sentencing court at the pre-sentence conference, the defendant may be required to participate in an alcohol or substance abuse program, work gainfully, abstain from alcohol and refrain from violating the law. In short, with the notable exception of restitution, this pretty much covers the gamut of options available to the court as part of a probationary sentence that might otherwise be imposed. The real difference, as we see it, is that the unique nature of this provision is not that it is to replace probation as a sentencing option, but that its real significance is that it may be utilized in cases like Rodney E. where the court would be otherwise inclined to impose a sentence of incarceration. Bear in mind that this is not a sentencing option, but rather a dry run to assist the court in the close-call case in determining the most appropriate sentencing option. This fact is made clear by the final sentence of CPL ' 400.10: In imposing sentence, the court shall take into consideration the defendant's record of compliance with pre-sentence conditions ordered by the court.
As noted by Professor Preiser, in his commentary on this section, the amendment actually failed to revitalize the pre-Johnson procedure whereby the defendant would be able to withdraw his or her plea to the charge thereby enabling him or her to plead to a lessor included offense upon successful completion. Since the amendment mandates that upon completion the defendant must be sentenced, it appears that the broad step of permitting the defendant to withdraw the plea was one that the Legislature was unwilling to take.
This raises the question of whether, in light of CPL ' 400.10(4), an agreement may still be made whereby the defendant can be permitted to withdraw a plea and plead to a lessor included offense in the event of successful completion. In our opinion, the option still remains. Avery, in which the Court of Appeals approved of just such an arrangement, was decided after the enactment of CPL ' 400.10. Although the statute has not been afforded retroactive treatment (People v. Krings, 210 A.D.2d 350, 620 N.Y.S.2d 280 [1994, 2nd Dept]), if the agreement calls for private treatment, which is not supervised by the probation department, the agreement falls within the purview of Avery and is unaffected by the limitation contained in CPL ' 400.10(4). Thus, the defendant will be free to plead to a lessor included offense in the absence of some remaining statutory provision.
Since CPL ' 400.10 was amended, virtually every challenge to drug or alcohol counseling as illegal interim probation has been rejected. Indeed, so uniform are these decisions that one can legitimately wonder how they continue to be brought. In People v. Black, 266 A.D.2d 399, 697 N.Y.S.2d 531 (3rd Dept, 1999), for instance, the defendant was placed in a voluntary drug treatment program pending sentencing. Apparently he did not succeed. On appeal, the Third Department, in a brief memorandum decision, noted that his participation in such a program did not amount to illegal interim probation. In People v. LaValley, C AD2d C, C NYS2d C, 2000 WL 676078 (3rd Dept, 2000.), N.Y. Slip Op. 05148, the defendant pleaded guilty to the crime of Driving While Intoxicated and waived his right to appeal. County Court postponed sentencing for an 11 month period during which defendant was required to complete an alcohol rehabilitation program and refrain from consuming alcohol. The defendant subsequently admitted to consuming alcohol during that period and, following a sentencing hearing, was sentenced to a 1 to 4 year prison term and ordered to pay restitution in the amount of $1,158.23, which sum represented the cost of extraditing defendant from Florida for his arraignment. While the Third Department found that the defendant's waiver of his right to appeal effectively precluded the argument relating to illegal interim probation, the court opined that, were it to reach the issue, it would nonetheless find that no violation of the defendant's rights had occurred. Of some note, however, it vacated the restitution provision by finding that extradition is included among the St. Lawrence County's normal law enforcement operating costs (see, People v. Watson, 197 A.D.2d 880) and is not considered an "actual out-of-pocket loss caused [by defendant's offense]" (Penal Law ' 60.27). Moreover, it observed that the County is not considered to be a "victim" of the defendant's crime so as to be entitled to restitution (see, Penal Law ' 60.27, [b]; see also, People v. La Fave, 265 A.D.2d 740, 742; People v. Storm, 177 A.D.2d 767).
In closing, interim probation is a good concept. In either of its two permissible forms, Avery or CPL ' 440.10, it is well-worth exploring.

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stated case upon legal principles.
as if no such contract had ever been made or entered into.
or civil contract whatsoever and both shall have the right to remarry.
Decree and order entered this day of , .
The court fixes alimony as follows: .
(c) In any case which involves the determination of child support, the form of the judgment shall also include provisions indicating both parents' income, the number of children for which support is being provided, the presumptive amount of child support award calculation, and, if the presumptive amount of child support is rebutted, the award amount and the basis for the rebuttal award. The final judgment shall have attached to it the child support worksheet containing the calculation of the final award of child support and Schedule E pertaining to deviations. The final judgment shall specify a sum certain amount of child support to be paid.
(d) Where applicable, the court shall also include in the order the provisions of Code Section 19-6-30 concerning continuing garnishment for support and language in compliance with Code Section 19-6-32 concerning income deduction orders.
Laws 1802, Cobb's 1851 Digest, p. 224; Code 1863, § 3484; Code 1868, § 3507; Code 1873, § 3565; Code 1882, § 3565; Civil Code 1895, § 2438; Civil Code 1910, § 2957; Code 1933, § 30-116; Ga. L. 1946, p. 90, § 9; Ga. L. 1979, p. 466, § 4; Ga. L. 1995, p. 603, § 1; Ga. L. 1996, p. 453, § 5; Ga. L. 1999, p. 81, § 19; Ga. L. 2005, p. 224, § 4/HB 221; Ga. L. 2006, p. 583, § 3/SB 382.