§ 40B-2 Definitions and word usage.
§ 40B-3 Litter in public and private places.
§ 40B-4 Placement of litter in receptacles so as to prevent scattering.
§ 40B-5 Maintenance of streets and sidewalks.
§ 40B-6 Merchants' duties to keep sidewalks free of litter.
§ 40B-7 Litter thrown by persons in vehicles or boats.
§ 40B-8 Vehicle loads causing litter.
§ 40B-9 Litter in lakes, ponds, pools, rivers, streams and fountains.
§ 40B-10 Placing commercial and noncommercial handbills on vehicles.
§ 40B-11 Depositing commercial and noncommercial handbills on uninhabited on vacant premises.
§ 40B-12 Prohibiting distribution of handbills where properly posted.
§ 40B-13 Distributing commercial or noncommercial handbills at inhabited premises.
§ 40B-14 Dropping litter from aircraft.
§ 40B-15 Posting notices prohibited.
§ 40B-16 Litter on occupied private property.
§ 40B-17 Owner or occupant to maintain premises free of litter.
§ 40B-18 Litter on vacant lots.
§ 40B-19 Violations and penalties.
[HISTORY: Adopted by the Mayor and Council of the Borough of Paulsboro 12-3-2002 by Ord. No. 25.02.
Advertisements and printed matter — See Ch. 2.
Garbage and rubbish — See Ch. 38.
Lot maintenance — See Ch. 42.
Editor's Note: This ordinance also repealed former Ch. 40B, Littering, adopted 5-17-1988 by Ord. No. 0.2.88.
This chapter shall be known and may be cited as the "Anti-Litter Ordinance" of the Borough of Paulsboro.
The Borough of Paulsboro, New Jersey.
Putrescible animal and vegetable waste resulting from the handling, preparation, cooking and consumption of food or any such related activity.
Any dwelling house, building or other structure designed or used either wholly or in part for private residential purposes, whether inhabited or temporarily or continuously uninhabited or vacant, and shall include any yard, ground, public or private walks, driveway, porch, steps or vestibule belonging or pertinent to such dwelling house, building or other structure.
Any and all streets, sidewalks, alleys or other public ways and any and all public parks, squares, spaces, grounds and buildings, playgrounds and library facilities.
Any structure or building owned or operated by the federal, county or state government or any other governmental agency.
All putrescible solid waste, including human body waste, garbage, rubbish, ashes, street cleanings, dead animals, abandoned motor vehicles, dismantled motor vehicles and parts thereof, tires, scrap metal, junk, machinery and solid market and industrial wastes.
Nonputrescible solid wastes consisting of both combustible and noncombustible wastes, such as paper wrappings, cigarettes, cardboard, tin cans, glass, bedding, crockery, bottles, packing materials, buildings materials and all other similar materials.
Word usage. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words used in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
It shall be unlawful for any person to throw, drop, discard or otherwise place any litter of any nature upon public or private property other than in a litter receptacle, or having done so, to allow such litter to remain.
Persons placing litter in public receptacles or in authorized private receptacles shall do so in such a manner and in such containers as will prevent it from being carried or deposited by the elements or by animals upon any street, sidewalk or other public place or upon private property.
It shall be the duty of the owner, lessee, tenant, occupant or person in charge of any public structure or building or private or commercial premises to keep and cause to be kept the sidewalk and curb abutting the building or structure free from litter, obstruction, or nuisances of every kind, and to keep sidewalks, areaways, backyards, courts and alleys free from litter and other offensive material. No person shall sweep into or deposit in any gutter, street, catch basin or other public place any accumulation of litter from any public or private sidewalk or driveway. Every person who owns or occupies property shall keep the sidewalk in front of his or her premises free of litter. All sweepings shall be collected and properly containerized for disposal.
Merchants or other persons owning or occupying premises used as businesses shall keep all portions of their premises free of litter as required by and in the manner provided for by §§ 40B-5, 40B-16 and 40B-17.
Whenever any litter is thrown or discarded or allowed to fall from a vehicle or boat in violation of this ordinance, the operator or owner, or both, of the motor vehicle or boat shall also be deemed to have violated this ordinance.
No persons shall drive or move any truck, motor vehicle or other vehicle within the Borough unless such vehicle is so constructed or loaded as to prevent any load or contents or litter from being blown or deposited upon any street, alley or other public or private place. Further, no person shall drive or move any truck, motor vehicle or other vehicle within the Borough, the wheels or tires or any portion of which carry onto or deposit in any street, alley or other public or private place mud, dirt, sticky substances or foreign matter of any kind.
No person shall throw or deposit litter in any lake, pond, pool, river, stream or fountain or any other body of water in a public or private place within the Borough.
No person shall throw or deposit any commercial or noncommercial handbill in or upon any vehicle; provided, however, that it shall not be unlawful in any public place for a person to hand out or distribute without charge to the receiver thereof of a noncommercial handbill to any occupant of a vehicle who is willing to accept it and who does accept it.
No persons shall throw, deposit or distribute any commercial or noncommercial handbill in or upon any private premises which are temporarily or continuously uninhabited or vacant.
No persons shall throw, deposit or distribute any commercial or noncommercial handbill upon any private premises if requested by anyone thereon not to do so, or if there is placed on the premises in a conspicuous position near the entrance thereof a sign bearing the words "No trespassing," "No peddlers or agents," "No advertisement" or any similar notice, indicating in any manner that the occupants or owners of said premises do not desire to be molested or have their right of privacy disturbed or to have any such handbills left upon such premises.
No person shall throw, deposit or distribute any commercial or noncommercial handbill in or upon private premises which are inhabited except by handing or transmitting any such handbill directly to the owner or occupants or other person then present in or upon such premises; provided, however, that in case of inhabited private premises which are not posted as provided in this chapter, such person, unless requested by anyone upon such premises not to do so, shall have the authority to place or deposit any such handbill in or upon such inhabited private premises, if such handbill is so placed or deposited in a manner to be secure and to prevent such handbill from being blown or drifted about such premises or sidewalks, streets or other public places, and except that mailboxes may not be used when so prohibited by federal postal law or regulations. The provisions of this section shall not apply to the distribution of United States mail nor to the deposit or delivery of newspaper which has been subscribed for in advance by the owner or occupant or for which said deposit, distribution or delivery to which the owner or occupant has previously consented in writing.
No person in any aircraft shall throw out, drop or deposit within the Borough any litter, handbill or other object.
No person shall post or affix any notice, poster or other paper or device calculated to attract the attention of the public to any lamppost, public utility pole, shade tree or upon any public or private structure or building except as may be authorized by the owners or occupants thereof or as authorized or required by law.
No person shall throw, deposit or store litter on any occupied private property within the Borough, whether owned by such person or not, except that the owner or person in control of the private property may maintain authorized private receptacles for collection and removal of litter in such manner that the litter shall not be unsightly and detrimental to the surrounding neighborhood or be a danger to public health, safety and welfare.
The owner, occupant or person in control of any private property shall at all times maintain the premises free of litter; provided, however, that this section shall not prohibit the storage of litter in authorized private receptacles for collection.
No person shall throw or deposit litter on any open or vacant private property within the Borough, whether owned by such person or not.
Any person violating or failing to comply with any of the provisions of this chapter shall, upon conviction thereof, be subject to a fine of $100 for the first offense, $200 for the second offense within six months after the first offense, and not exceeding $1,000 or imprisonment of no more than 30 days in the county jail for a third or subsequent offense within six months of the last offense. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder.
The provisions of this chapter shall be enforced by the Police Department and/or the Code Enforcement Officer of the Borough of Paulsboro.
Each section, subsection, sentence, clause and phrase of this ordinance is declared to be an independent section, subsection, sentence, clause and phrase, and the finding or holding of any such portion of this ordinance to be unconstitutional, void, or ineffective for any cause or reason shall not affect any other portion of this ordinance.


text:
Tampa, FL - U.S. Attorney A. Lee Bentley, III announced today that the Middle District of Florida collected more than $136 million for taxpayers this fiscal year (FY). In FY 2015, which ended on September 30, the Office’s Civil, Criminal, and Asset Forfeiture Divisions collected these monies through civil and criminal actions.
The Office’s Civil Division, led by Randy Harwell, recovered $101,247,920 from affirmative civil enforcement cases, most alleging health care fraud. Our civil Assistant United States Attorneys recovered $47,593,934 as a result of investigations conducted in this district. An additional $53,653,986 was recovered as a result of joint investigations with the Department of Justice’s Civil Division and other United States Attorneys’ offices. This latter figure includes an installment payment of $21,651,246 from an earlier settlement of a large health care fraud case, United States ex rel. Hellein v. Wellcare Health Plans, Inc.
The Office’s Asset Recovery and Victims’ Rights Division, led by Anita M. Cream, recovered more than $34.9 million. Of this amount, the Division’s Financial Litigation Unit recovered $11,498,617 in criminal cases, most of which was in the form of criminal fines, special assessments, and restitution. Providing restitution for the victims of crime is a top priority of our office. Working with partner agencies, the Division’s Asset Forfeiture Section recovered more than $23.4 million in criminal and civil forfeitures. Depending on the type of case, forfeited assets are deposited into the Department of Justice Assets Forfeiture Fund or the Department of Treasury’s Assets Forfeiture Fund. Consistent with Departmental policy, in cases where a defendant lacks the means to pay restitution, assets can be forfeited from that defendant and restored to crime victims. In addition, approximately $5.6 million in forfeited funds was shared with state and local law enforcement agencies.
Attorney General Loretta E. Lynch announced on December 3, 2015, that the Justice Department collected $23.1 billion in civil and criminal actions this fiscal year. This total represents more than seven and a half times the approximately $2.93 billion of the Justice Department’s combined appropriations for the 94 U.S. Attorneys’ offices and the main litigating divisions in that same period.
The largest civil collections were from affirmative civil enforcement cases, in which the United States recovered government money lost to fraud or other misconduct, or collected fines imposed on individuals and/or corporations for violations of federal health, safety, civil rights, or environmental laws. In addition, civil debts were collected on behalf of several federal agencies, including the U.S. Department of Housing and Urban Development, the Department of Health and Human Services, the Internal Revenue Service, the Small Business Administration, and the Department of Education.
The False Claims Act is the government’s primary civil remedy to redress false claims for government funds and property under government contracts, including national security and defense contracts, as well as under government programs as varied as Medicare, veterans’ benefits, federally insured loans and mortgages, highway funds, research grants, agricultural supports, school lunches, and disaster assistance. In 1986, Congress strengthened the Act by amending it to increase incentives for whistleblowers to file lawsuits on behalf of the government. Most false claims actions are filed under the Act’s whistleblower, or qui tam, provisions that allow individuals to file lawsuits alleging false claims on behalf of the government. If the government prevails in the action, the whistleblower, also known as the relator, receives up to 30 percent of the recovery.
Our district has taken the lead in a nationwide effort to pursue recovery, under the False Claims Act, against compounding pharmacies that have engaged in a systemic fraud against TRICARE, the military’s healthcare program. The most persistent fraud scheme identified involves improper relationships between marketing firms, physicians, and compounding pharmacies to induce the referral of prescriptions for medically unnecessary compounded pain and scar creams to the pharmacies.
In July 2015, the U.S. Attorney’s Office settled claims against Blanding Health Mart Pharmacy. Between February and April, Blanding sought reimbursement for compounding pharmaceutical prescriptions that were not medically necessary and had been written by physicians that had never actually seen the patients. These claims were resolved for $8,441,107.
Kevin Powers, former Chief Executive Officer of QMedRX, a compounding pharmacy in Maitland, paid $6,529,077 to satisfy his responsibility arising from bills submitted to federal healthcare programs for services that were not reimbursable. Between January 1, 2013, and January 22, 2014, QMedRX submitted claims for compounded prescriptions that violated the Anti‐Kickback Statute because the marketers who obtained the prescriptions from physicians were paid through improper and illegal incentive compensation arrangements.
Another compounding pharmacy, Med Match Pharmacy, LLC, paid $4,736,133.63 to resolve concerns that it had paid kickbacks to marketers, that it had filled prescriptions it knew or should have known were not legitimate, and that it had sent prescriptions to states in which it did not have a valid license.
MediMix, a Jacksonville-based compounding pharmacy, resolved claims that it had an improper referral relationship with its top-referring physician – Dr. Ankit Desai. TRICARE alleged that between January 2009 and December 2014, Dr. Desai sent hundreds of prescriptions to MediMix that were not reimbursable because he was married to a Senior Vice President at MediMix. Healthcare providers are generally prohibited from referring business to entities where they have a financial interest. The government agreed to accept $3,775,458 to resolve these allegations.
Shortly after the close of FY15, the MDFL reached settlements with a host of other compounding pharmacies, bringing the total recovery on behalf of the TRICARE program to more than $35 million.
United States ex rel. Yandell v. Advanced Homecare, Inc.
A former employee of a Jacksonville home health company filed a qui tam case against her employer, Advanced Homecare, contending that, from April 2009 until April 2012, the company had created a set of “neurocare protocols” wherein the company accepted home health referrals from two neurologists. The government alleged that through these protocols, Advanced Homecare had accepted and treated patients who were not actually homebound and did not have a valid physician certification of home health need, as required by Medicare. Further, the government alleged that Advanced Homecare recklessly had allowed its employees to aggressively market its home health services to this neurology practice, and that those marketing employees had gained direct access to the practice’s patient files, completed referral forms, and used the doctors’ signature stamps to sign orders, in order to circumvent the physician certification requirement. The government resolved these allegations for $1,293,169.
The relator in this case is a former sales representative for a home health care provider who alleges that the defendant entered into consulting agreements with physicians. These physicians agreed to refer at least 10 patients a month to the defendant in exchange for compensation ranging from $2,000 to $2,500 per month. The consulting agreements referred to the physicians as either “medical directors” or “medical consultants.” Prior to October 2009, Recovery Home Care employed two medical directors. By January 2012, the defendant had contracts with 18 medical directors, and had “consulting agreements” with 32 physicians during the course of the scheme. The relator alleged that these agreements violated the federal Anti-Kickback Statutes and Stark Statute. Following a lengthy investigation, the United States intervened in the case. Claims against Recovery Home Care have been resolved for $1 million. A settlement of the claims against the individual defendant is still being finalized.
United States ex rel. Wells v. Baptist Health System, et al.
This qui tam case was filed by a former administrator of the Baptist Health hospital chain who alleged that a neurologist employed by the hospital intentionally had misdiagnosed his patients with various neurological disorders and then had billed government healthcare programs for medically unnecessary services, tests, and treatments. In addition, she alleged that the defendant hospital chain did not return overpayments it had received as a result of the misdiagnoses, after discovering the neurologist’s scheme. In FY2014, we settled our claims against the hospital for $2.5 million. This fiscal year, we reached an ability to pay settlement for $150,000 with the physician defendant.
United States ex rel. Yerger et al. v. IND-MAR Services, Inc., et al.
The relator filed this case in May 2011, alleging that North Florida Shipyards created a sham corporation, IND-MAR Services, Inc., falsely claiming that IND-MAR was a Service Disabled Veteran Owned Business (SDVOB). North Florida Shipyards did so in order to appear qualified to bid on certain solicitations issued by the Coast Guard, which were set aside contracts for SDVOBs. After a lengthy investigation, we opened settlement discussions that led the defendant to invoke its ability to pay. In FY2015, the Department of Justice approved the defendant’s offer to pay $1,000,000 to settle these claims.
United States ex rel. Macdonald v. Walter Investment Mgmt. Corp., et al.
The former Chief Financial Officer of a loan servicing company, RMS, filed a qui tam complaint against his former employer and its parent, Walter Investments. The complaint alleged that the defendants had defrauded the Department of Housing and Urban Development’s (HUD) reverse mortgage insurance program by failing to take certain actions required by HUD regulations, after HUD insured loans became due and payable. Specifically, the relator alleged that RMS had failed to disclose to HUD on numerous occasions that it did not obtain an appraisal within the required 30 days after the loan became due, and that it did not take “first legal action” within six months of the due date. By not self-disclosing on the HUD insurance claim that these event-specific deadlines were missed, the relator alleged that RMS filed false claims with HUD that resulted in HUD paying additional interest on claims that it should not have paid. These claims were settled for $29.63 million.
This case was a civil penalty referral by the Drug Enforcement Administration arising from the conduct of two CVS pharmacies in Sanford, Florida. The two pharmacies were accused of distributing controlled substances based on prescriptions that had not been issued for legitimate medical purposes by a health care provider in the usual course of professional practice. When confronted with the investigative findings, CVS acknowledged that its retail pharmacies had dispensed certain controlled substances in a manner not fully consistent with their compliance obligations under the Controlled Substances Act and the related regulations. CVS ultimately agreed to pay a civil penalty of $22 million. At the time of settlement, this was the highest penalty of its kind ever paid by a nationwide pharmacy chain.
United States ex rel. Valenti v. Tai Shan Golden Gain Aluminum Products, Inc.
This qui tam was filed by the CEO of an exporter that competes with the defendant in the aluminum extrusion industry. He alleged that the defendant had avoided paying anti-dumping and countervailing duties owed on aluminum extrusions by misrepresenting the country of origin for the products as Malaysia, rather than the Peoples Republic of China. The investigation confirmed these allegations, as well as other deceptive practices. In FY2014, a settlement was reached with the defendant, Basco, for $1.1 million. In FY2015, settlements were negotiated with defendants C.R. Laurence Co. Inc., Southeastern Aluminum Products Inc., and Waterfall Group LLC for $2.3 million, $650,000 and $100,000, respectively, as well as for $385,000 and $50,000, on an ability to pay basis with individual defendants Robert Wingfeld and William Ma. The aggregate settlement recovery for this case was $4.585 million.
United States ex rel. Pelletier v. Liberty Ambulance Service, Inc., et al. and United States ex rel. Pelletier v. Century Ambulance Service, Inc., et al.
A former employee of two Jacksonville area ambulance companies filed two qui tam lawsuits in federal court against his former employers, alleging that the companies had submitted false claims to Medicare and other federally subsidized health programs for services that were “upcoded” and/or were medically unnecessary. Specifically, the whistleblower alleged that the companies had sought reimbursement for transportation of patients who did not qualify for basic life support transportation. In addition, the whistleblower alleged that several Jacksonville area hospitals had furthered the scheme by providing false certificates of medical necessity to justify the services. These allegations were investigated over a three and a half year period, which corroborated the relator’s core allegations. Ultimately claims were settled against one ambulance company (Century Ambulance) for $1.25 million and against three Jacksonville area hospital chains (Baptist Hospital, HCA, and Shands Healthcare) for $2.88 million, $2.4 million, and $1 million, respectively, for a total recovery of $7.53 million. The U.S. Attorney’s Office has intervened in the qui tam case against Liberty Ambulance and is currently litigating the claims against that defendant.
United States ex rel. Milstein v. Family Dermatology, et al.
Family Dermatology P.C. owns and operates a dermatopathology laboratory in Georgia and a number of dermatology practices throughout the Eastern United States. The relator, a board certified dermatologist and an independent contractor for Family Dermatology, claimed that the defendants had defrauded the United States by knowingly billing Medicare for lab work that violated the Stark Statute. The Stark Statute restricts the financial relationships that health care providers may have with doctors who refer patients to them. Family Dermatology employs a number of dermatologists as independent contractors and it routinely required them to use Family Dermatology’s in-house pathology lab, which operated under the name Nelson Dermatopathology, for their pathology services. The relator alleged that Family Dermatology’s financial relationships with a number of these physicians did not comply with the requirements of the Stark Statute, and that company had improperly billed Medicare for dermatopathology analyses performed by Nelson Dermatopathology on specimens that had been sent to the laboratory by these employed physicians. This case overlapped with another previously filed case in the Northern District of Georgia and was subsequently transferred there. Our district continued to assist in the investigation that resulted in a settlement of all claims for $3,247,935.
United States ex rel. Montejo v. Adventist Health System, et al.
A physician formerly employed by Florida Oncology Network alleged that his former employer, the exclusive provider of radiation oncology services for Adventist Health System’s Florida Hospital chain, had provided radiation therapy services to patients without the proper physician supervision required by Medicare reimbursement regulations. He further alleged that the defendants had submitted false claims for evaluation and management services that were required to be performed by radiation oncologists, but were instead performed by non-physician providers. After investigating these claims, the U.S. Attorney’s Office negotiated a settlement of the claims against the defendant hospital chain for $5.5 million.

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


President Trump signed the Bipartisan Budget Act of 2018 into law on February 9. The Act, which was passed to fund the federal government and avoid another shutdown, includes a number of changes to the Internal Revenue Code. Many of these changes retroactively extend--generally for one year--tax provisions which had expired at the end of 2016. Because this Act significantly impacts many 2017 returns, IRS announced on Friday that it was reviewing the legislation and would provide additional information as quickly as possible. Not in the Act was any change to the qualified cooperative dividend deduction implemented by the new tax law. Although earlier reports had suggested that a "fix" would be inserted into the budget bill, it now appears that lawmakers continue to work toward crafting an appropriate solution to the controversial problem. We will continue to keep you posted on that issue.
Below is a summary of key revenue provisions included in the Act. We will continue to watch for IRS guidance on these provisions.
Sec. 40201. Extension of exclusion from gross income of discharge of qualified principal residence indebtedness.
IRC § 108(a)(1)(E)(ii) provided that a discharge of qualified principal residence indebtedness was excluded from income if it was discharged subject to an arrangement that was entered into and evidenced in writing before January 1, 2017. The Act extends this provision to apply to arrangements entered into and evidenced in writing before January 1, 2018.
Sec. 40202. Extension of mortgage insurance premiums treated as qualified residence interest.
IRC § 163(h)(3)(E) generally provided that premiums paid or accrued (through December 31, 2016) for qualified mortgage insurance by a taxpayer in connection with acquisition indebtedness for a qualified residence shall be treated as qualified residence interest. The Act extends this provision to apply to premiums paid or accrued through December 31, 2017.
Sec. 40203. Extension of above-the-line deduction for qualified tuition and related expenses.
IRC § 222 provided an above-the-line deduction for qualified tuition and related expenses incurred through December 31, 2016. The Act extends this provision to apply to expenses incurred through December 31, 2017.
Sec. 40401. Extension of credit for nonbusiness energy property.
The Act extends the IRC § 25C credit for nonbusiness energy property to apply to property placed in service by December 31, 2017.
Sec. 40402. Extension and modification of credit for residential energy property.
The Act extends the IRC § 25D credit for residential energy property for qualified fuel cell property, small wind energy property, and geothermal heat pump property placed in service through December 31, 2021. The law already provided that the credit for qualified solar electric property and solar water heating property applied to property placed in service through December 31, 2021. The Act does not change these dates.
Sec. 40403. Extension of credit for new qualified fuel cell motor vehicles.
The Act extends the IRC § 30B credit for new qualified fuel cell motor vehicles to apply to those vehicles purchased through December 31, 2017.
Sec. 40404. Extension of credit for alternative fuel vehicle refueling property.
The Act extends the IRC § 30C credit for alternative fuel vehicle refueling property to apply to property placed into service through December 31, 2017.
Sec. 40405. Extension of credit for 2-wheeled plug-in electric vehicles.
The Act extends the IRC § 30D credit for 2-wheeled plug-in electric vehicles to apply to vehicles acquired before January 1, 2018.
Sec. 40406. Extension of second generation biofuel producer credit.
The Act extends the IRC §40 second generation biofuel producer credit to apply before January 1, 2018.
Sec. 40407. Extension of biodiesel and renewable diesel incentives.
The Act generally extends IRC § 40A biodiesel and renewable diesel incentives through the 2017 tax year. It also provides that a special rule will apply for 2017 with respect to the biodiesel mixture credit properly determined under IRC § 6426(c) for 2017. The Act states that IRS will issue guidance within 30 days providing for a one-time submission of claims. The guidance will provide for a 180-day period for the submission, beginning once the guidance is issued.
Sec. 40408. Extension of production credit for Indian coal facilities.
The Act extends the IRC § 45(e)(10)(A) credit for Indian coal facilities to apply for an additional year (through 2017).
Sec. 40409. Extension of credits with respect to facilities producing energy from certain renewable resources.
These facilities will be considered energy property under IRC § 48(a)(5)(C)(ii) through 2017.
Sec. 40410. Extension of credit for energy-efficient new homes.
The Act extends the IRC § 45L credit for energy-efficient new homes to apply to homes acquired through 2017.
Sec. 40411. Extension and phase-out of energy credit.
The Act extends the IRC § 48 energy credit for fiber-optic solar, qualified fuel cell, small wind energy property, qualified micro-turbine, and combined heat and power system property through 2021. This credit is subject to a phase-out.
Sec. 40412. Extension of special allowance for second generation biofuel plant property.
The Act extends the special depreciation allowance provided by IRC § 168(l) for qualified second generation biofuel plact property to include that property placed in service by December 31, 2017.
Sec. 40413. Extension of energy efficient commercial buildings deduction.
The Act extends the deduction provided by IRC § 179D for energy efficient commercial buildings to apply to property placed in service through December 31, 2017.
Sec. 40414. Extension of special rule for sales or dispositions to implement Federal Energy Regulatory Commission or State electric restructuring policy for qualified electric utilities.
The Act extends the IRC § 451(k)(3) special rule to apply through 2017.
Sec. 40415. Extension of excise tax credits relating to alternative fuels.
The Act extends alternative fuels excise tax credits available under IRC § 6426(d)(5) and IRC § 6426(e)(3) through 2017. The Act also extends the IRC § 6427(e) outlay payments for an additional year. The Act directs that IRS will issue guidance within 30 days providing for a one-time submission of claims. The guidance will provide for a 180-day period for the submission, beginning once the guidance is issued.
Sec. 40416. Extension of Oil Spill Liability Trust Fund financing rate.
The Act provides that the Oil Spill Liability Trust Fund financing rate shall not apply after December 31, 2018. Prior to this amendment, it was scheduled to end December 31, 2017.
Sec. 40301. Extension of Indian employment tax credit.
Sec. 40302. Extension of railroad track maintenance credit.
Sec. 40303. Extension of mine rescue team training credit.
Sec. 40304. Extension of classification of certain race horses as 3-year property.
Sec. 40305. Extension of 7-year recovery period for motorsports entertainment complexes.
Sec. 40306. Extension of accelerated depreciation for business property on an Indian reservation.
Sec. 40307. Extension of election to expense mine safety equipment.
Sec. 40308. Extension of special expensing rules for certain productions.
Sec. 40309. Extension of deduction allowable with respect to income attributable to domestic production activities in Puerto Rico.
Sec. 40310. Extension of special rule relating to qualified timber gain.
Sec. 40311. Extension of empowerment zone tax incentives.
Sec. 40312. Extension of American Samoa economic development credit.
Sec. 41102. Modifications to rum cover over.
Sec. 41103. Extension of waiver of limitations with respect to excluding from gross income amounts received by wrongfully incarcerated individuals.
Sec. 41104. Individuals held harmless on improper levy on retirement plans.
Sec. 41105. Modification of user fee requirements for installment agreements.
Sec. 41106. Form 1040SR for seniors.
Sec. 41107. Attorneys fees relating to awards to whistleblowers.
Sec. 41108. Clarification of whistleblower awards.
Sec. 41109. Clarification regarding excise tax based on investment income of private colleges and universities.
Sec. 41110. Exception from private foundation excess business holding tax for independently-operated philanthropic business holdings.
Sec. 41111. Rule of construction for Craft Beverage Modernization and Tax Reform.
Sec. 41112. Simplification of rules regarding records, statements, and returns.
Sec. 41113. Modification of rules governing hardship distributions.
Sec. 41114. Modification of rules relating to hardship withdrawals from cash or deferred arrangements.
Sec. 41115. Opportunity Zones rule for Puerto Rico.
Sec. 41116. Tax home of certain citizens or residents of the United States living abroad.
Sec. 41117. Treatment of foreign persons for returns relating to payments made in settlement of payment card and third party network transactions.
Sec. 41118. Repeal of shift in time of payment of corporate estimated taxes.
Sec. 41119. Enhancement of carbon dioxide sequestration credit.


COMMONWEALTH v. Kyle L. JOHNSON.
Present (Sitting at New Bedford): GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. Edward Crane for the defendant. Karen A. Newirth, James L. Brochin, & Jennifer H. Wu, of New York, & R.J. Cinquegrana, for The Innocence Project & another, amici curiae, submitted a brief. Lisa Kavanaugh, Benjamin H. Keehn, Patrick Levin, Radha Natarajan, & Paul R. Rudof, Committee for Public Counsel Services, & David Lewis, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.
Background. We summarize the facts found by the motion judge, supplemented where necessary with undisputed evidence that was implicitly credited by the judge. See Commonwealth v. Jones–Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).
On September 21, 2012, Adebayo Talabi, the victim, received a telephone call from a neighbor that the door to his apartment was open. He returned to his home and encountered a stranger, who was armed with a firearm, inside his apartment. They struggled, and during the struggle the firearm went off, striking no one. The intruder fled. The victim reported the incident to the Brockton police department and described the assailant as a light-skinned black male wearing a gray hooded sweatshirt. Brockton police Detective Jacqueline Congdon asked the victim to come to the police station to review booking photographs to see if he could identify the intruder, but he did not do so.
On September 27, 2012, the victim telephoned Brockton police Officer Scott Besarick and told Besarick he now knew the identity of the intruder. Officer Besarick transferred the telephone call to Detective Congdon's line, and the victim explained to her that he had recently spoken to his cousin, T.J. Hendricks, who lived in the Roxbury section of Boston and whose home had been broken into one day before the incident at the victim's apartment. The victim then added Hendricks to the telephone call so that it was a three-way call. Hendricks said that the break-in at his Roxbury home had been captured in a video recording by a neighbor's surveillance system that showed the person who had broken into his home. By the “size and shape” of the person in the surveillance footage, Hendricks believed that the intruder “could possibly be” the defendant, who was the boy friend of a cousin of both Hendricks and the victim. Hendricks obtained a photograph of the defendant and his girl friend taken by Hendricks's mother at a cookout, which he forwarded to the victim. The victim viewed the photograph and identified the defendant as the intruder he had discovered in his home.
Using this information, Detective Congdon assembled an eight-person photographic array containing the defendant's photograph. Detective Thomas Hyland met with the victim to show him the photographic array. The victim positively identified the defendant's photograph in the array as the man he discovered in his apartment.
The defendant was indicted on seven charges, including armed assault in a dwelling, in violation of G.L. c. 265, § 18A, and breaking and entering in the daytime, in violation of G.L. c. 266, § 17. The defendant moved to suppress all out-of-court and in-court identifications of the defendant by the victim. The motion judge held an evidentiary hearing at which Detectives Congdon and Hyland testified. The judge found that the police did not violate the defendant's constitutional rights in administering the photographic array but allowed the motion to suppress the two out-of-court identifications under the common-law principles of fairness recognized in Jones, 423 Mass. at 109, concluding that they were “impermissibly tainted by the suggestive circumstances.” The motion judge also allowed the motion to suppress any in-court identification, concluding that the Commonwealth had failed to meet its burden of showing by clear and convincing evidence that an in-court identification would be based upon an independent source, citing Commonwealth v. Botelho, 369 Mass. 860, 868 (1976). The Commonwealth moved for reconsideration of the ruling, which was denied, and then sought leave to appeal the motion judge's decision. A single justice allowed the application for interlocutory appeal, and we transferred the case to this court on our own motion.
Discussion. Before we address whether the judge was correct to suppress the eyewitness identifications in this case, we set forth our law regarding the admissibility of eyewitness identifications.
1. Law of eyewitness identifications. a. Out-of-court identifications made during a police identification procedure. Where an out-of-court eyewitness identification arises from an identification procedure that was conducted by the police, the identification is not admissible under art. 12 of the Massachusetts Declaration of Rights if the defendant proves by a preponderance of the evidence that the identification was “so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.” Commonwealth v. Walker, 460 Mass. 590, 599 (2011), and cases cited. “In considering whether identification testimony should be suppressed, the judge must examine ‘the totality of the circumstances attending the confrontation to determine whether it was unnecessarily suggestive.’ “ Commonwealth v. Silva–Santiago, 453 Mass. 782, 795 (2009), quoting Commonwealth v. Odware, 429 Mass. 231, 235 (1999). “Where the defendant satisfies this burden, the out-of-court identification is per se excluded as a violation of the defendant's right to due process under art. 12․” Walker, supra at 599 n. 13. See Commonwealth v. Johnson, 420 Mass. 458, 462–463 (1995).
Under our per se exclusion standard, a defendant must prove not only that the out-of-court identification procedure administered by the police was suggestive, but that it was “unnecessarily suggestive” (emphasis in original). Commonwealth v. Crayton, 470 Mass. 228, 235 (2014), quoting Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014). This inquiry focuses on whether police had “good reason” to engage in a suggestive identification procedure. Crayton, supra at 235–236. Figueroa, supra. See Commonwealth v. Austin, 421 Mass. 357, 361–362 (1995) (“good reason” to conduct showup depends on “the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track”).
By adopting a rule of per se exclusion under art. 12, we rejected the rule under the Fourteenth Amendment to the United States Constitution in which a motion judge must apply a two-step analysis to the question of admissibility. Johnson, 420 Mass. at 464–465. Under the Federal two-step analysis, the judge asks first whether the eyewitness identification was obtained by a police procedure that was unnecessarily suggestive. See Manson v. Brathwaite, 432 U.S. 98, 110 (1977). See also Perry v. New Hampshire, 132 S.Ct. 716, 726 (2012) (“A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances ․ is to deter law enforcement use of improper lineups, showups, and photo[graphic] arrays”). If it was, the judge then asks whether, notwithstanding the unnecessarily suggestive procedure, the eyewitness identification is reliable under “the totality of the circumstances.” See Manson, supra. Under Federal constitutional law, because “reliability is the linchpin,” the out-of-court identification, if found reliable, is admissible even where obtained through an unnecessarily suggestive procedure. See id. at 110, 114.
We rejected the Federal reliability test regarding out-of-court identifications in part because it “does little or nothing to discourage police from using suggestive identification procedures.” Johnson, 420 Mass. at 468. We noted that, under the Federal standard, “[a]lmost any suggestive lineup will still meet reliability standards” and be admitted in evidence despite the unnecessary suggestiveness of the identification procedure. Id., quoting Note, Twenty–Years of Diminishing Protection: A Proposal to Return to the Wade Trilogy's Standards, 15 Hofstra L.Rev. 583, 606 (1987). We concluded that, if we were to adopt the Federal reliability test under art. 12, it would send “a message to police that, absent extremely aggravating circumstances, suggestive showups will not result in suppression.” Johnson, supra.
Under our per se standard, the reliability of an out-of-court identification cannot save the admissibility of an unnecessarily suggestive out-of-court identification. But we declared in Johnson, supra at 467, that “the per se approach does not keep relevant and reliable identification evidence from the jury” because the Commonwealth may admit a subsequent identification if it proves by clear and convincing evidence that the identification came from a source independent of the suggestive procedure.
A motion to suppress an identification under Jones is similar to a motion to suppress an identification under art. 12 in that the defendant must timely file the motion before trial, see Mass. R.Crim. P. 13(d)(2), as appearing in 442 Mass. 1516 (2004), and bears the burden of proof by a preponderance of the evidence. See Walker, 460 Mass. at 604–605. It is also similar in that the evidentiary hearing on the motion should be conducted and ruled on before trial, so that the Commonwealth and the defendant have the opportunity to challenge the ruling through an interlocutory appeal under Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). But a suppression ruling under Jones differs in two fundamental ways from the suppression ruling that a judge makes under art. 12 where the police are alleged to have obtained an eyewitness identification through an unnecessarily suggestive identification procedure.
First, the standard of admissibility is different; admissibility is determined not by a rule of per se exclusion, because there is no police misconduct to deter through suppression, but by weighing the probative value of the identification against the danger of unfair prejudice, and determining whether the latter substantially outweighs the former.
The danger of unfair prejudice arises because the accuracy of an identification tainted by suggestive circumstances is more difficult for a jury to evaluate. “Jurors ․ tend to be unaware of ․ how susceptible witness certainty is to manipulation by suggestive procedures or confirming feedback.” Commonwealth v. Gomes, 470 Mass. 352, 373 (2015), quoting State v. Lawson, 352 Or. 724, 778 (Appendix) (2012). “Social science research has shown that a witness's level of confidence in an identification is not a reliable predictor of [its] accuracy ․, especially where the level of confidence is inflated by its suggestiveness.” Crayton, 470 Mass. at 239, citing Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices 19 (July 25, 2013) (Study Group Report). See Crayton, supra at 239 n. 15, quoting Wells & Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum. Behav. 1, 12 (2009) (“Studies have shown ․ that ‘confirmatory suggestive remarks from the lineup administrator [like ‘Good, you identified the actual suspect’] consistently inflate eyewitness certainty for eyewitnesses who are in fact mistaken' ”). Yet, studies have shown that juries tend to give great weight to a witness's confidence in an identification. See Perry, 132 S.Ct. at 739 (Sotomayor, J., dissenting) (“Study after study demonstrates that ․ jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy” [footnotes omitted] ). See also Study Group Report, supra at 69–70, citing Leippe, Eisenstadt, & Rauch, Cueing Confidence in Eyewitness Identifications: Influence of Biased Lineup Instructions and Pre–Identification Memory Feedback Under Varying Lineup Conditions, 33 Law & Hum. Behav. 194, 194 (2009), and Wells, Lindsay, & Ferguson, Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification, 64 J. Applied Psychol. 440, 446 (1979) (“Studies show that eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an eyewitness identification”).
Suggestive identification procedures may also affect a witness's memory regarding the quality of his or her observation that led to the identification. See Gomes, 470 Mass. at 373 (“Preidentification feedback may contaminate the witness's memory”). In one study, witnesses who received confirmatory feedback reported “ ‘a better view of the culprit, a greater ability to make out details of the face, greater attention to the event, [and] a stronger basis for making an identification,’ compared to witnesses receiving no feedback.” Id. at 374 n. 35, quoting Wells & Bradfield, “Good, You Identified the Suspect”: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. Applied Psychol. 360, 366 (1998). See Commonwealth v. Collins, 470 Mass. 255, 263 (2014).
In short, suggestiveness is likely to inflate an eyewitness's certainty regarding an identification and to alter the eyewitness's memory regarding the quality of his or her observation of the offender to conform to the eyewitness's inflated level of confidence in the identification. We recognized this danger, and the effect it could have on a jury's ability accurately to evaluate identification evidence, in Jones, where we declared that “cross-examination and a judge's jury instruction concerning eyewitness identification testimony” could not “fairly protect the defendant from the unreliability” of the identification in that case. Jones, 423 Mass. at 110.
The probative value of the identification depends on the strength of its source independent of the suggestive circumstances of the identification. See Allen v. Moore, 453 F.2d 970, 975 (1st Cir.), cert. denied, 406 U.S. 969 (1972) (“the firmer the contemporaneous impression, the less is the witness subject to be influenced by subsequent events”). In determining the strength of an identification's independent source, we consider such factors as the quality of the witness's opportunity to observe the offender at the time of the crime, the amount of time between the crime and the identification, whether the witness's earlier description of the perpetrator matches the defendant, and whether the witness earlier identified another person as the perpetrator or failed to identify the defendant as the perpetrator. See Johnson, 420 Mass. at 464; Botelho, 369 Mass. at 869. Another factor is the witness's prior familiarity with the person identified, where that person is a witness's family member, friend, or long-time acquaintance. See Model Jury Instructions on Eyewitness Identification, 473 Mass. 1051, 1054 (2015). After weighing the risk of unfair prejudice arising from the suggestiveness of the identification against the strength of its independent source, the judge must determine whether the identification is so unreliable that it would be unfair for a jury to give it any weight in their evaluation of the evidence. If it is, the judge must rule it inadmissible.
Second, the standard of appellate review under art. 12 differs from the standard of review under the common-law principles of fairness articulated in Jones. Where an identification arises from a police procedure, we apply the standard appropriate for review of a decision implicating constitutional rights: we review a judge's findings of fact to determine whether they are clearly erroneous but review without deference the judge's application of the law to the facts as found. See Commonwealth v. Watson, 455 Mass. 246, 250 (2009). Where an identification does not arise from a police procedure, admissibility rests on an evidentiary judgment regarding the reliability of the identification, so we review under the abuse of discretion standard and ask “whether the judge's decision resulted from ‘a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.’ “ Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014).
c. In-court identifications. Where a judge excludes an out-of-court identification arising from a suggestive police procedure under our art. 12 standard of per se exclusion, the judge must still consider whether to admit a subsequent out-of-court or in-court identification by the witness. Where a witness's out-of-court identification is excluded, the Commonwealth may offer a subsequent out-of-court or in-court identification by the witness if the Commonwealth proves by clear and convincing evidence that the subsequent identification is reliable because it rests on a source independent of the unnecessarily suggestive confrontation. Johnson, 420 Mass. at 463–464. Botelho, 369 Mass. at 867–868. We recognize that we have recently declared that an “in-court identification is comparable in its suggestiveness to a showup identification” and have prohibited its admission in the absence of a showing of “good reason” where there was no out-of-court identification of the defendant by the witness before trial, Crayton, 470 Mass. at 236, 241, or where the out-of-court identification by the witness was “something less than an unequivocal positive identification of the defendant,” Collins, 470 Mass. at 262. We need not consider in this case whether the reasoning in Crayton and Collins dictates that we eliminate or revise the independent source doctrine as applied to in-court identifications because the identifications here were not obtained through any fault of the police. We will await an appropriate case to address that issue.
But this is an appropriate case to consider whether the independent source doctrine applies to an in-court identification where both out-of-court identifications were declared inadmissible under common-law principles of fairness. We conclude that it does not apply. Where the suggestiveness does not arise from police conduct, a suggestive identification may be found inadmissible only where the judge concludes that it is so unreliable that it should not be considered by the jury. In such a case, a subsequent in-court identification cannot be more reliable than the earlier out-of-court identification, given the inherent suggestiveness of in-court identifications and the passage of time. See Model Jury Instructions on Eyewitness Identification, 473 Mass. at 1055 endnote j, quoting Study Group Report, supra at 31–32 (“The more time that elapses between an initial observation and a later identification procedure ․ the less reliable the later recollection will be”). In sum, because a judge declares an out-of-court identification to be inadmissible under Jones only where it is unreliable, the Commonwealth cannot prevail in proving by clear and convincing evidence that the witness's in-court identification would be reliable.
2. Application of law to the facts of this case. We turn now to the Commonwealth's arguments that the judge abused his discretion in declining to admit in evidence the victim's out-of-court and anticipated in-court identifications of the defendant. The Commonwealth contends that the identifications may be excluded under Jones only if they were made under “highly” or “especially” suggestive circumstances and that the judge abused his discretion in finding that the circumstances here met that standard. In Jones, we characterized the witness's confrontation with the defendant as both “highly suggestive” and “especially suggestive,” but we did not define either term or clarify whether they were two different characterizations of the same standard. See Jones, 423 Mass. at 109. Nor have we done so in subsequent cases that applied the Jones standard.
We recognize that the victim's identification of the defendant in this case was less suggestive than the identification in Jones.5 But the judge did not err in concluding that it was sufficiently suggestive to trigger a reliability analysis. The judge reasonably found that Hendricks suggested to the victim that the man who invaded the victim's home on September 21, 2012, might have been the same man he suspected broke into his own home the previous day—a man who was connected to both of them because he was the boy friend of their cousin. The judge reasonably could have found a substantial risk that these suggestive circumstances influenced the victim when he examined the cookout photograph of the defendant and identified the defendant as the intruder from that photograph and from the subsequent photographic array. The judge also reasonably could have found a substantial risk that this suggestion affected the witness's level of certainty in the identification and his recollection of his observations of the intruder during the incident.
The judge also did not err in giving little probative weight to the independent source of the identification. The judge noted that the victim's encounter with the intruder was brief and his description meager: a light-skinned black male wearing a gray hooded sweatshirt, with no information regarding the intruder's height, weight, or facial hair, or the lighting conditions in the apartment. The judge also noted from his own observation that the defendant was not light-skinned. In view of the substantial deference given to the motion judge under the abuse of discretion standard, we conclude that the judge did not abuse his discretion in allowing the motion to suppress the identifications. We therefore affirm the allowance of the defendant's motion to suppress the out-of-court and in-court identifications of the defendant by the victim.
1. We acknowledge the amicus brief submitted by the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers and the amicus brief submitted by the Innocence Project and the Innocence Network.
2. In Commonwealth v. Jones, 423 Mass. 99, 108 (1996), we recognized that, even where the police did not cause a highly suggestive confrontation, a judge might find identification testimony to be so unreliable that it must be excluded “as a matter of fairness on due process grounds.” We declared, however, that “[w]e need not base our decision on constitutional grounds,” id. at 109, and ruled the eyewitness identification at issue in that case to be inadmissible on “[c]ommon law principles of fairness.” Id. After our opinion in Jones, we limited our review of the admission of identification testimony where the police did nothing improper to common-law principles of fairness, see Commonwealth v. Odware, 429 Mass. 231, 236 (1999), and we do so here.
3. In Perry v. New Hampshire, 132 S.Ct. 716, 728 (2012), the United States Supreme Court declared that its “unwillingness to enlarge the domain of due process” to require exclusion of suggestive identifications that were not obtained through improper police conduct rested “in large part” on the presence of other safeguards in the adversary system that address the risk that juries will place “undue weight on eyewitness testimony of questionable reliability.” Among the protections cited was the authority of trial judges under State and Federal rules of evidence “to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury,” citing Fed.R.Evid. 403. Id. at 729.
4. We need not address here whether a judge may exclude an identification where there was no suggestiveness in the identification but where the identification might be unreliable because of the circumstances surrounding the witness's perception of the event, such as the distance between the witness and the perpetrator, the poor quality of the lighting, or the brevity of the observation.
5. In Jones, 423 Mass. at 101, a motel employee saw an African–American man come into the lobby of the motel, spend approximately one minute in the lobby, return to the lobby about ten minutes later, and drive away in a vehicle. The employee saw the African–American man for a total of only approximately three minutes and there was no event that caused her to pay particular attention to him. Id. at 101–102. However, at two pretrial hearings, the witness, having learned that the crime in that case had been committed by Vietnamese and African–American men, saw the defendant, who was African–American, shackled to a Vietnamese man. Id. at 102–103, 110.