Nancy A. Berryhill, Commissioner of the Social Security Administration, Defendant.
Michelle H. Bums United States Magistrate Judge.
Pending before the Court is Plaintiff Jeffrey Belden Henderson's motion for attorney's fees under the Equal Access to Justice Act (“EAJA”) (Doc. 52). After reviewing the arguments of the parties, the Court now issues the following ruling.
In July 2010, Plaintiff filed applications for disability insurance benefits and supplemental security income alleging disability beginning in July 2009. Plaintiff's onset date was later amended to April 7, 2010. Plaintiff's claims were denied initially and on reconsideration. Thereafter, Plaintiff requested a hearing before an administrative law judge, and a hearing was held on May 15, 2012. Afterwards, the ALJ issued a decision finding that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review, and Plaintiff then sought judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).
This Court, after reviewing the administrative record and the arguments of the parties, reversed the decision of the ALJ, finding that the ALJ did not properly weigh medical source opinion evidence, and did not support his decision to discredit Plaintiff's reported limitations with specific, clear and convincing reasons. The Court remanded the case to the Commissioner for further administrative proceedings to allow the ALJ to set forth sufficiently clear explanations for his weighing of the medical source evidence and to support his credibility assessment of Plaintiff. Thereafter, Plaintiff appealed the Court's decision to the Ninth Circuit Court of Appeals.
The Ninth Circuit, subsequently, issued its Mandate, reversing the judgment of the district court and instructing it to remand the case to the agency to calculate and award benefits.
The EAJA allows “a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). An applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of whether disability benefits are ultimately awarded. See Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993).
The “position of the United States” includes both its litigating position and the “action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). For this position to be substantially justified, it must be “justified in substance or in the main - that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (holding that substantially justified means having a reasonable basis both in law and fact). In EAJA actions, the government bears the burden of proving that its position was substantially justified. See Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). However, “the government's failure to prevail does not raise a presumption that its position was not substantially justified.” Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).
When analyzing the government's position for substantial justification, the Court's inquiry should be focused on the issue that was the basis for remand and not the merits of Plaintiff's claim in its entirety or the ultimate disability determination. See Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 2008); see also Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) (“The government's position must be substantially justified at each stage of the proceedings.”).
Plaintiff moves for an award of attorney's fees under the EAJA in the amount of $17, 702.10. Defendant opposes Plaintiff's request. Defendant does not argue that the government's position was substantially justified - rather Defendant contends that the amount of fees requested by Plaintiff is unreasonable.
The Court will determine whether the requested fees are reasonable. Plaintiff requests attorney's fees in the amount of $17, 702.10. The attorney's fees amount represents the 5.3 hours of work in 2013 (at $187.02/hour), the 49.7 hours of work in 2014 (at $190.06/hour), the 24.0 hours of work in 2015 (at $190.28/hour), the 7.8 hours of work in 2016 (at $192.68/hour), and the 6.1 hours of work in 2017 (at $195.95/hour) by Plaintiff's counsel on the instant matter.


OLAOLUWA FAPARUSI, Plaintiff-Appellant, v. CASE WESTERN RESERVE UNIVERSITY, et al., Defendants-Appellees.
BEFORE: KEITH, ROGERS, McKEAGUE, Circuit Judges.
Case Western Reserve University suspended sophomore student Olaoluwa Faparusi after it found he had violated the school's code of conduct by entering a women's restroom and taking photos under the stall walls. Believing the disciplinary procedures employed by the school to be constitutionally insufficient and in breach of the school handbook, Faparusi brought suit alleging Fourteenth Amendment due process violations and a state law breach of contract claim. The district court granted the defendants' motion to dismiss all of Faparusi's claims. Finding that Faparusi's claims suffer from the fatal defects identified by the district court, we affirm.
Factual Background. On March 1, 2016, Olaoluwa Faparusi, a male sophomore student at Case Western Reserve University (“CWRU”), was studying for his physics final at the Raymond House on the CWRU campus. R. 1, Complaint, at 4, PID 4. Taking a break from his studies, Faparusi decided to use the women's restroom. Id. While in one of the stalls, two female students, SV and JG-P, asked Faparusi what he was doing in the women's restroom. Id. Eventually, SV began accusing Faparusi of taking pictures, and requested that he delete them. Id. SV and JG-P left the restroom soon after this confrontation, and Faparusi followed shortly thereafter. Id.
Later that same day, CWRU police questioned Faparusi about the incident. Id. at 5, PID 5. Faparusi denied having taken any pictures, and the police found none on his phone. Id. Sometime after the interview, still on March 1, CWRU's Associate Vice President for Affairs and Title IX Coordinator Darnell T. Parker informed Faparusi that it was conducting an investigation in response to an incident report they received. Id.
On March 3, Faparusi's housing contract was terminated and Faparusi was forced to find alternative, off-campus housing. Id. That same day, Faparusi met with Parker regarding the incident. Id. at 6, PID 6. Faparusi had several similar meetings with other officials, including investigator Kimberly Scott, over the next several days. Id. at 6, PID 6. During that same time, CWRU officials, notably Scott, met with the complainants, SV and CP, and witness, JG-P. Id.
On March 15, Faparusi was informed that he would have to attend a hearing on March 18, and that the subject of the hearing was a charge of sexual exploitation. Id. at 8, PID 8. Faparusi claims that he was given the evidence against him less than 24 hours before the hearing was held. Id. The hearing was presided over by George O'Connell. Id. On March 21, the University informed Faparusi that he was held liable for both sexual exploitation and disorderly conduct. Id. at 9, PID 9.
Faparusi appealed the decision to Louis Stark, CWRU's Vice President for Student Affairs, on March 23. Id. Faparusi argued that he was the victim of mistaken identification, pointing to inconsistencies in the witness accounts and investigative reports. Id. He also alleged that the University had wrongfully deviated from its hearing procedures, had provided inadequate notice of the disorderly conduct charge, and had not conducted an impartial investigation. Id. at 10, PID 10. Faparusi's appeal was denied on April 6. Id. As a sanction for his violations, Faparusi was suspended from school. Faparusi's lawsuit followed.
Procedural Background. On June 23, 2016, Faparusi, proceeding pro se, filed suit alleging due process violations under the Fourteenth Amendment and breach of contract claims under Ohio state law. He named as defendants CWRU, the hearing administrator George O'Connell, and investigator Kimberly Scott. Id. at 2, PID 2. He then moved for a temporary restraining order and a preliminary injunction on July 6, 2016. The matter was referred to a magistrate judge, who issued a Report and Recommendation (“R & R”) recommending that Faparusi's motion be denied. R. 12, Report and Recommendation, at 2, PID 173. On November 10, 2016, the district court adopted the magistrate judge's R & R and denied Faparusi's motion. R. 17, Op. and Order, at 1, PID 268.
While Faparusi's prayer for injunctive relief was pending, on August 2, the defendants filed a motion to dismiss for failure to state a claim. R. 5, Mot. to Dismiss, at 1, PID 74. The magistrate judge also handled this motion initially, and recommended that the motion to dismiss be granted as to all claims. R. 18, Report and Recommendation, at 2, PID 273. The district court again adopted the R & R, thereby dismissing all of Faparusi's claims, on February 28, 2017. R. 24, Op. and Order, at 1, PID 345. This appeal followed.
The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. This court has appellate jurisdiction under 28 U.S.C. § 1291, based on the district court's February 28, 2017 order granting CWRU's motion to dismiss. Faparusi timely filed a notice of appeal on March 1, 2017.
We review a district court's grant of a motion to dismiss de novo. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). We will construe all facts “in the light most favorable to the plaintiff and accept all allegations as true.” Id. To state a claim sufficient to survive a motion to dismiss, the plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level” and must state a claim that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Put another way, a plaintiff must plead facts that permit a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Faparusi objects to the district court's judgment on four grounds. First, he argues that the district court failed to engage in a proper de novo review of the objected-to portions of the magistrate judge's R & R. Second, Faparusi claims the district court erred in classifying some of his claims under Title IX rather than as standalone due process claims. Third, he argues that the district court improperly dismissed his due process claims by concluding CWRU was not a state actor. Fourth, and finally, Faparusi alleges the district court was wrong to dismiss his breach of contract claim. Finding each of these arguments without merit, we affirm.
Faparusi appears to identify three “material errors in facts and omission” in the R & R “that showed a partial review of the records” by the district court. Id. First, he claims the district court should have corrected the R & R's statement that Faparusi was suspended for using the women's restroom, when in fact he was suspended for allegedly taking pictures therein. Id. Second, Faparusi complains that the district court failed to take note of the R & R's finding that Faparusi had alleged sufficient facts to support his mistaken identity claim. Id. And third, Faparusi argues that the district court wrongly relied on the R & R to conclude that Faparusi knew the charges against him and had an opportunity to be heard when Faparusi was found liable for disorderly conduct without first being notified of that charge. Id. at 18. The district court committed no such errors.
Faparusi's first argument—that the district court failed to correct the R & R's misstatement on why Faparusi was suspended—is a pedantic one. It is true that the R & R contains a sentence that reads in part: “Plaintiff was suspended from Case Western Reserve University for using a women's restroom at a facility ․” R. 18, R & R, PID 273. But in the very next sentence, the magistrate judge clarified: “While in a restroom stall, he was verbally confronted by two female students who accused plaintiff of taking pictures in the restroom.” Id. As the district court found in reviewing Faparusi's objection to this portion of the R & R, that statement showed the magistrate judge “clearly considered the disciplinary action was based on the accusation that Plaintiff was taking pictures of women in the women's restroom.” R. 24, Op. and Order, PID 351. Because the magistrate judge did not err in the first instance, the district court did not err by failing to clean up confusion that never existed.
Faparusi's second argument fares no better. While the argument is unclear, Faparusi seems to argue that the district court failed to give due weight to the R & R's conclusion that Faparusi had alleged facts sufficient to show he was innocent of the charges against him. See R. 18, R & R, PID 280. That finding in the R & R, Faparusi asserts, stands in “stark contradiction” to the district court order granting defendants' motion to dismiss for failure to state a claim. It does not. A complaint must do more than paint a plausible factual picture; it must connect those facts to a “right to relief.” Twombly, 550 U.S. at 555. And right after the R & R states that Faparusi pleaded facts to show he was a victim of mistaken identity, the R & R concluded that those facts alone were insufficient for relief under Title IX. See R. 18, R & R, PID 280–83. That portion of the R & R and the district court's ultimate dismissal of Faparusi's claims were therefore consistent, not contradictory.
Finally, Faparusi claims that the district court must have haphazardly reviewed the factual record because it accepted the R & R's conclusion that Faparusi knew of the charges against him and had ample opportunity to contest them. That conclusion, Faparusi argues, cannot be right since “the records clearly show [Faparusi] was found liable for disorderly conduct despite the fact that he was never charged with the offense.” Appellant Br. at 18. The argument fails to establish reversible error.
As an initial matter, Faparusi was on notice that he was being investigated for sexual exploitation, and the factual basis for that complaint was the same basis on which the disorderly conduct charge was predicated. Furthermore, CWRU provided Faparusi with the evidence against him in advance of his hearing. These facts preclude any claim by Faparusi that he was ambushed by the subject of the hearing. And finally, it is significant that the factual predicate for the disorderly conduct finding was precisely the same as that for the sexual exploitation finding. See R. 3-9, CWRU Hearing Report, at 1, PID 63 (supporting both charges with fact that Faparausi used phone in the restroom to observe women in other stalls). These details combine to distinguish this case from one relied on by Faparusi, Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 604 (D. Mass. 2016), where the school “refus[ed] to provide [the student] with the specific factual conduct alleged to have given rise to the charge.” That lapse by the school made it impossible for the student to defend himself—not so here.
Moreover, even if we agreed that Faparusi was treated unfairly and that the district court was wrong to conclude otherwise, there is no legal basis on which the district court could grant relief. Faparusi does not allege that inadequate notice breached any contract he had with the school, see Appellant Br. at 25, and a due process challenge will not lie because CWRU is not a state actor subject to due process minimums, see infra C.3. That is why Fellheimer v. Middlebury Coll., rather than offering support for Faparusi's argument, instead confirms his claim is a fish out of water. 869 F. Supp. 238 (D. Vt. 1994). The court in Fellheimer said it was “fundamentally unfair” that a student was not informed by the school of one charge against him—but only because that was such a stark “deviation from the procedures established by the College” in its own handbook. Id. at 246. Faparusi does not allege the same here, instead arguing that notice was constitutionally deficient under the due process clause.
Accordingly, we reject Faparusi's claims that the district judge improperly relied on—or failed to correct—the magistrate's recitation of the factual record.
Faparusi objected to the magistrate judge's conclusion that his due process claims were in effect Title IX claims. Faparusi renews that objection on appeal, in spite of the district court's thorough analysis confirming the magistrate's reasoning. For the reasons set forth in the district court opinion, see R. 24, Op. and Order, at 7–9, PID 351–53, we agree that Faparusi's claims were better considered as pleaded under Title IX.
But because we find that Faparusi's claims are foreclosed no matter which law governs, we need not, and do not, belabor the dispute. Instead, as the district court did, we assume Faparusi pleaded “straight Fourteenth Amendment Due Process Violation claims,” as he now argues on appeal, and hold that “dismissal would still be appropriate for a number of reasons.” Id. at 9, PID 353.
The district court held that Faparusi's due process claims (Counts One, Two, Three, and Five) would fail for either of two reasons: first, Faparusi failed to bring them under 42 U.S.C. § 1983; and second, CWRU was not a state actor constrained by constitutional due process minimums. Id. We review the district court's determination de novo, taking Faparusi's allegations as true. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). In light of the requirement to liberally construe Faparusi's pro se complaint, we assume that his due process claims were properly brought under § 1983. Yet we nevertheless affirm for Faparusi's failure to show that CWRU was a state actor susceptible to due process challenges.
The Fourteenth Amendment's due process guarantees are “triggered only in the presence of state action.” Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000). While this typically forecloses constitutional claims against private actors, “a private entity can be held to constitutional standards when its actions so approximate state action that they may be fairly attributed to the state.” Id. We have used three tests in determining whether private action can be fairly attributed to the state: “(1) the public function test; (2) the state compulsion test; and (3) the symbiotic relationship or nexus test.” Id.
No matter the test, the result is the same: Faparusi's claim fails. That is because Faparusi does not bother to allege any facts that would establish CWRU as a state actor in this case. The district court's review of Faparusi's complaint found that Faparusi “asserted no facts supporting his allegation that Case Western acted under color of state law other than simply reciting the legal conclusion that Case Western acted under color of law.” R. 24, Op. and Order, at 11, PID 355. Our review of the complaint—and Faparusi's arguments on appeal—compels the same conclusion.
We start with the complaint. Faparusi asserts, “At all time[s] relevant, Defendants acted under color of state law to enforce the requirements of Title IX.” R. 1, Complaint, at 3, PID 3. Beyond this conclusory statement, we can find no other facts alleged in the complaint that might be read to suggest state action under the public function, state compulsion, or nexus tests. Perhaps we could forgive the complaint for these shortcomings, given that it was filed without the assistance of counsel. But we cannot so easily excuse the same omissions in Faparusi's brief on appeal. Even after the district court highlighted this failure, see R. 24, Op. and Order, at 11, PID 355, nowhere in Faparusi's brief does he explain why this court should find CWRU acted under the color of state law.
That leaves only Faparusi's allegation that CWRU acted under the color of state law by enforcing Title IX. This by itself would ordinarily be insufficient under Iqbal-Twombly pleading standards to establish CWRU as a state actor. But even if we did Faparusi's work for him, it is hard to imagine how the argument would work. Faparusi must first contend with the oddity that, according to him, his claim for relief has nothing to do with Title IX—and yet he urges us to find that CWRU is a state actor because its investigation of Faparusi was pursuant to Title IX. That anomaly aside, a second hurdle emerges: a private entity taking action pursuant to a federal law does not thereby automatically become a state actor.
A recent federal court decision involving a separate lawsuit alleging due process violations against CWRU is instructive on this point. See Doe v. Case W. Reserve Univ., No. 1:17 CV 414, 2017 WL 3840418, at *9 (N.D. Ohio Sept. 1, 2017). In Doe, the plaintiff did flesh out a state action argument—a creative one under the nexus test—and the court still rejected it. Id. The argument was that CWRU's actions with regard to the plaintiff were coerced by the federal government because CWRU feared that its failure to take action would risk de-funding penalties. Id. The court rejected the argument because there was no evidence that “the federal government participated in the proceedings against the plaintiff, or dictated the specific finding of responsibility in this case. Federal regulation and receipt of federal funds alone, does not convert private conduct to government or state action.” Id. Doe's Title IX-state action analysis is consonant with other federal courts facing similar questions. Id. at *10 (N.D. Ohio Sept. 1, 2017) (“Despite extensive research, the Court has not found a single case in which a court has determined that a private school's compliance with Title IX's regulations make that entity a state actor for purposes of a Fourteenth Amendment due process claim, nor has Plaintiff cited any such decision.”). Doe's analysis is persuasive. Therefore, even with dramatically more artful pleading, Faparusi would fail to defeat defendants' state action argument.
With no showing that CWRU was a state actor, Faparusi's due process challenge must fail. This fatal flaw in Faparusi's due process argument is made clear by the very cases he relies on: they either considered private law contract challenges, not constitutional ones, based on the schools' deviation from its own disciplinary procedures, see Appellant Br. at 23 (citing Fellheimer, discussed above), or disciplinary actions by state universities, see Appellant Br. at 24 (citing Doe v. The Rector & Visitors of George Mason Univ., 179 F. Supp. 3d 583 (E.D. Va. 2016)). Faparusi may have his reasons to be indignant about CWRU's treatment of him. But a perception of mistreatment, even a well-founded one, does not automatically mean Faparusi has suffered a deprivation of his rights under the Constitution. We therefore affirm the district court's dismissal of Faparusi's Fourteenth Amendment due process claims in Counts One, Two, Three, and Five.
The district court dismissed Faparusi's state law breach of contract claim (Count Four) after finding that Faparusi could not establish that CWRU breached any portion of the university handbook. R. 24, Op. and Order, at 13, PID 357. Specifically, the court said that the handbook provision Faparusi pointed to conferred a right only on the complainant in the underlying investigation, not the respondent. Id. While the district court was correct with respect to Page 20, paragraph 2's notice requirement, it did not dispose of Faparusi's other contractual complaint—that CWRU violated the handbook by holding two hearings rather than one. See R. 6, Opp. Mot. to Dismiss, at 11, PID 140; Appellant Br. at 26. On de novo review, we affirm the district court's dismissal of the contract claim, but we supplement the district court's reasoning to account for this latter argument.
Ohio contract law governs this dispute. “Generally it may be stated that when a student enrolls in a college or university, pays his or her tuition and fees, and attends such school, the resulting relationship may reasonably be construed as being contractual in nature.” Behrend v. State, 379 N.E.2d 617, 620 (Ohio Ct. App. 1977). “Yet, at the same time, ‘[c]ontracts for private education have unique qualities and must be construed to allow the institution's governing body to meet its educational and doctrinal responsibilities.’ ” Valente v. Univ. of Dayton, 438 F. App'x 381, 384 (6th Cir. 2011) (quoting Ray v. Wilmington Coll., 667 N.E.2d 39, 42 (Ohio Ct. App. 1995)). Accordingly, is it “well established that courts will not interfere in these matters in the absence of a clear abuse of discretion.” Schoppelrei v. Franklin Univ., 228 N.E.2d 334, 336 (Ohio Ct. App. 1967). In confronting challenges to private school disciplinary proceedings, the appropriate question is thus “whether the proceedings fell within the range of reasonable expectations of one reading the relevant rules, an objective reasonableness standard.” Pierre v. Univ. of Dayton, 143 F. Supp. 3d 703, 713 (S.D. Ohio 2015).
The answer to that question is yes. It is true enough that the handbook provisions for the Administrative Hearing Procedure discuss “the hearing,” R. 6, Opp. Mot. to Dismiss, at 11, PID 140, and Faparusi has a colorable argument that such language means “only one hearing was to be held,” Appellant Br. at 26. But Faparusi's argument fails on closer inspection. For one thing, it is question-begging. It assumes without good reason that any contact between CWRU officials and the complainants constitutes a hearing, triggering requirements like notice to the respondent and the right of the respondent to attend. But why should we view CWRU's decision to interview the complainant in this case as a hearing within the meaning of these handbook provisions? To the contrary, an equally (if not more) plausible interpretation of the University's meeting with complainants would be that it was part of the school's investigation. If that is the case, then the provisions Faparusi points to are not even applicable in the first instance.
What's more, even assuming the contact with complainants was subject to the hearing provisions, the process afforded to Faparusi as a whole was largely consistent with that outlined in the handbook. In the end, Faparusi was given notice of his hearing, provided the evidence to be used against him at the hearing, was given an opportunity to respond at the hearing, and was able to appeal the adverse decision against him. Those “proceedings fell within the range of reasonable expectations of one reading the relevant rules” in CWRU's handbook. Pierre, 143 F. Supp. 3d at 713. Accordingly, Faparusi's breach of contract claim cannot succeed.
For the reasons set forth above, we affirm the district court's dismissal of all five of Faparusi's claims.
1. It is unclear from Faparusi's brief whether the argument is that we must reverse the district court only for its failure to independently review the factual record after objections were made to the magistrate's report—or if the argument is that reversal is necessary because these factual errors led to analytical ones in applying the law. In any event, because we find no underlying error in the district court's review of the record, neither claim succeeds.


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1. — Burglary — Sufficiency of the Evidence — Recent Possession.
Where, upon trial of burglary, the evidence showed the recent possession by defendant of the alleged stolen property without sufficient explanation, and the evidence was otherwise sufficient to sustain the conviction there was no reversible error.
2. — Identification — Stolen Property — Circumstantial Evidence.
Where, upon trial of burglary the evidence showed that the defendant, shortly after the burglary, was found in possession of an overcoat exactly similar to the one which was taken from the burglarized store and which was not seen until defendant was arrested; was also found in possession when arrested of certain tools and keys with which entrance in said house could be affected, etc., the identification of the stolen goods, etc., was sufficient and a conviction is sustained.
Appeal from the District Court of Donley. Tried below before the Hon. Henry S. Bishop.
Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary.
A.T. Cole, for appellant. — Cited Branch Criminal Law, page 1284; Love v. State, 58 Tex.Crim. Rep..
E.A. Berry, Assistant Attorney General, for the State.
In this case appellant was convicted of burglary in the District Court of Donley County and his punishment fixed by the jury at confinement in the penitentiary for a period of five years.
J.B. Masterson had a store in the little town of Hedley, Donley County, Texas and on the night of November 4, 1918 his store building was entered and an overcoat, certain quantities of silk, six pair of ladies' shoes and some ladies' suits were taken. There is no contest in this case of the fact that said store was burglarized and said property taken. The store had a front and a rear door, each of which the proprietor said was locked on the night in question; the rear door being locked with a yale lock and the front door with an ordinary lock, the latter of which could be unfastened by several keys which were in evidence. The case was one of circumstantial evidence and there seems to be no complaint as to the manner in which the law on that question was presented to the jury. The only contention made here is that the evidence is not sufficient to support the verdict. The burglary was on the night of November 4th and on the afternoon preceding the proprietor was showing his stock of overcoats and sold one to a customer. The next morning, when the burglary was discovered, Masterson at once discovered that an overcoat which he had shown to said customer the afternoon before was gone, along with the other property mentioned. The overcoat was described by the owner as to make, size, and color and pattern and an overcoat was identified by him in the court room as being the one taken from his possession or one which was exactly identical with the same, his expressed opinion being that it was his overcoat. It was testified by the customer who bought an overcoat the afternoon before, that he saw in the owner's possession in said store an overcoat identical in all respects with one exhibited in the courtroom at the trial. A witness named Goldston testified that on the day of the alleged burglary, a man whom he identified as appellant, came into his store and bought from him a watch case. Said witness testified that after selling the appellant the watch case he walked with him down to a jewelry store to get the time and to the Bon-Ton where they got a drink and he states that appellant did not have on any overcoat at that time. On November 7th it was testified by Miss Grace Dawn, a chamber-maid at the Union Hotel in Amarillo, that she went up to a certain room to clean it up and that appellant was in the room and engaged her in conversation and asked her if she wanted to buy some shoes, some silk and a lady's suit and upon her expressing willingness to purchase if the articles suited, he told her that he would bring them to let her look at them that night, cautioning her not to say anything about his having them as he did not want it talked about. A few minutes after this conversation she notified officer Sullinger of what had been said to her and Sullinger hunted up the appellant and arrested him. At the time of his arrest appellant had on the overcoat which was identified by the witness Masterson and also had secreted in his cap three skeleton keys, a flat file, a small piece of steel and a knife. Two of the keys, upon trial, were found to unlock the front door of the Masterson store. Appellant did not take the stand or put any witness on except one and him only to show that a yale lock could not be opened by any flat piece of metal unless made especially to fit the lock.
This much of the evidence is stated in order that it may be understood why we are unable to agree with appellant's view that the evidence does not support the verdict.
It has been frequently held in this State that the unexplained possession of property recently stolen, will support a conviction for theft thereof. See Branch's An. P.C., sec. 2463 and authorities cited. Also that the jury may infer theft of all of certain missing property from the fact of possession of part of the same. Rose v. State, 52 Tex.Crim. Rep.; White v. State, 17 Tex.Crim. Rep.; Gonzales v. State, 18 Tex. Crim. 453; Jack v. State, 20 Tex.Crim. Rep.. Also if the State show that a burglary has been committed, and that recently thereafter appellant was found in possession of all or part of the property taken from said burglarized premises and no explanation is made by him of such possession, same will support conviction of the burglary. Branch's An. P.C., sec. 2346 and authorities cited. Appellant's main objection to the sufficiency of the evidence in the instant case is because of what he claims to be lack of sufficient indentification of the overcoat found on appellant. The question of identification of stolen property is one for the jury. Polin v. State, 65 S.W. Rep., 183; Hooten v. State, 53 Tex.Crim. Rep.; Lynne v. State, 53 Tex. Crim. 375, 111 S.W. Rep., 729; Suggs v. State, 65 Tex. Crim. 67, 143 S.W. Rep., 186. Not only was appellant found in possession of an overcoat exactly similar in every respect to the one which was taken from the burglarized store on the night of the burglary and which was not thereafter seen until appellant was arrested in a neighboring town on the third day thereafter, but he also had on no overcoat the afternoon before the burglary; and was also found when arrested to be in possession of tools and keys with which entrance into the burglarized store could be effected, and it may be noted that said articles were found carried by him in a very unusual place about his person; and it was also shown that he had been trying to secretly dispose of other articles which in a general way corresponded with those taken at the same time the overcoat disappeared. No explanation or attempted explanation of any of these facts was offered and we cannot say that the jury did not have sufficient evidence before them upon which to predicate the verdict of guilty. This court will not reverse unless there is such manifest lack of evidence as to make it apparent that the verdict was the result of prejudice or that such verdict is against the great weight of the evidence.
There being no error apparent the judgment of the trial court will be affirmed.

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Except when time is an essential element of the offense, the time allegation is not material to the sufficiency of the indictment if the error or variance in proof is within reasonable limits. Time was material to an indictment charging a willful failure to file an income tax return by the April 15 deadline. Therefore, evidence showing that the defendant had obtained a filing extension until May 7 of that year caused a fatal variance. See United States v. Bowman, 783 F.2d 1192 (5th Cir. 1986); United States v. Cochran, 697 F.2d 600 (5th Cir. 1983); United States v. Goldstein, 502 F.2d 526 (3d Cir. 1974). ("[V]ariance between dates alleged and dates proven will not trigger reversal. . . as long as the date proved falls within the statute of limitations and before the return date of the indictment." United States v. Alexander, 850 F.2d 1500, 1504 (11th Cir. 1988), quoting, United States v. Harrell, 737 F.2d 971, 981 (11th Cir. 1984), cert. denied, 469 U.S. 1164 (1985) (omission in original). See also Russell v. United States, 429 F.2d 237 (5th Cir. 1970).
Courts have allowed considerable leeway as to the specificity of the alleged date of an offense in an indictment. Using the phrase "on or about" is proper. United States v. Giles, 756 F.2d 1085 (5th Cir. 1985). Citing hornbook law that great generality is allowed as to the alleged date of an offense in an indictment, it was held that a count charging that an alien smuggling offense took place "on or about 1977, the exact date to the grand jury unknown" was within reasonable limits. See United States v. Nunez, 668 F.2d 10, 11 (1st Cir. 1981).
One court has reasoned that the more specific the time allegation, the stronger is the inference that the grand jury was only indicting a defendant for acts occurring on the specific dates charged, whereas use of the qualifying phrase, "on or about" indicated a grand jury unwillingness to pinpoint the date of the offense charged. See United States v. Somers, 496 F.2d 723, 745 (3d Cir), cert. denied, 419 U.S. 832 (1974). Thus, a fatal variance was held to have occurred when an indictment charged that the subject extortionate acts occurred "on October 7 and October 8, 1962," but the proof showed such acts occurred on August 10 and October 5, 1962. See United States v. Critchley, 353 F.2d 358 (3d Cir. 1965). In contrast, the court in United States v. Grapp, 653 F.2d 189 (5th Cir. 1981), readily rejected a variance claim when the proof at trial showed that the time of the offense was the middle of 1977 and the indictment charged it had occurred "on or about May 27, 1977."

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§ 413-1 Use of streets; encroachments.
§ 413-2 Designation and use of sidewalks.
§ 413-3 Interference with street and sidewalk surfaces prohibited.
§ 413-4 Deposits on streets or public places prohibited; penalties for offenses.
§ 413-5 Obstruction of streets and passages.
§ 413-6 Holding onto, boarding or interfering with vehicles.
§ 413-7 Removal of unlawful encroachments and dangerous conditions.
§ 413-8 Obstructions restricted; historical markers.
§ 413-9 Bond or insurance.
§ 413-10 Protection of pavement.
§ 413-11 Lamps and lamp standards.
§ 413-12 Interference with street signs; rewards.
§ 413-13 Report of defective conditions and unlighted streetlights.
§ 413-14 Permits for street openings.
§ 413-16 Who to make openings or repairs.
§ 413-17 Failure to comply.
§ 413-19 Fees and deposits.
§ 413-21 Issuance of permits to public utilities.
§ 413-23 Compliance with orders and directions of Commissioner required.
§ 413-24 Parking in entrance and exit drives.
§ 413-25 Correction of improper replacement of openings.
§ 413-26 Form of petition.
§ 413-27 Record of filing with City Clerk.
§ 413-28 Persons signing petitions; required information.
§ 413-30 Guarding and lighting.
§ 413-31 Sewer, water and gas connections.
§ 413-32 Inspection and testing of curbing.
§ 413-33 Bridges and viaducts.
§ 413-34 Temporary closing of streets.
§ 413-35 Placement of reviewing stands and temporary structures.
§ 413-36 § 413-36. Street closing for block clubs.
§ 413-37 Temporary storage of materials and temporary structures in highways.
§ 413-38 Repair of vehicles.
§ 413-39 Designation of play streets.
§ 413-40 Restrictions on use of play streets.
§ 413-41 Operation of vehicles exceeding size or weight limits.
§ 413-42 Vehicles with lugs or cleats.
§ 413-44 Installation of water, sewer and gas pipes.
§ 413-45 Work to be done by City upon noncompliance.
§ 413-46 Permit required for construction; fees; specifications.
§ 413-47 Bids for construction and repair.
§ 413-48 Maintenance of sidewalks; penalties for offenses.
§ 413-49 Marking or writing on sidewalks.
§ 413-50 Duty for removal; penalties for offenses.
§ 413-51 Performance of work by City; reports; expenses.
§ 413-52 Methods of removal and disposal locations; penalties for offenses.
§ 413-53 Deposit of goods and merchandise.
§ 413-54 Sideshows; stands for sale of food and drink.
§ 413-56 Awnings, canopies and marquees.
§ 413-57 Vaults, coal holes and chutes.
§ 413-58 Openings for lighting basements.
§ 413-59.1 Handicapped access ramps.
§ 413-60 Permit required; inspection and approval.
§ 413-62 Payment of costs.
§ 413-64 Erection of signs; observance of regulations.
§ 413-68 Complete streets defined.
§ 413-69 Implementation of complete streets and exceptions.
§ 413-70 Planning, design and maintenance of facilities.
Ambulances and ambulance drivers — See Ch. 72.
Bicycle paths — See Ch. 91.
Cleaning of buildings — See Ch. 101.
Numbering of buildings — See Ch. 109.
City property — See Ch. 133.
Code enforcement — See Ch. 137.
Excavations and quarries — See Ch. 169.
Naming of streets, parks and public buildings — See Ch. 286.
Newsstands — See Ch. 289.
Parking and parking lots — See Ch. 307.
Parks and other open spaces — See Ch. 309.
Outdoor performers — See Ch. 319.
Poles and wires — See Ch. 330.
Railroads — See Ch. 352.
Telephone facilities — See Ch. 441.


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- Hilary Mantel, Wolf Hall (2009), p. 65.
The fictional representation of Thomas Cromwell’s rise to power as narrated by Hilary Mantel in her Wolf Hall shows us, at the very least, that she has done her homework. The myth quoted above – which opens the second chapter of the book - is told not too dissimilar to how it would have been told in the sixteenth-century. If Mantel is to be believed (and she is, it is to be remembered, telling a fictional story albeit about real history) then Thomas Wosley did not put much stock in such stories. Whether or not that is true, there is certainly plenty of evidence to suggest that not all took the origin stories about Britain seriously. It is true that the Tudor monarchy chose the stories of King Arthur and Merlin as the basis for their power. Henry VII even named his eldest son Arthur as a means to link his power with the rebirth of Britain’s most famous king of legend. It is also true that the stories were repeated often not only in poetry but also in Chronicles claiming to be fonts of fact and truth. Yet, as T. D. Kendrick has noted many of these chroniclers added the caveat that they were repeating the tales sent down to them and not necessarily claiming their authorial expertise in this portion of their text. The origin stories, for many, were traditions that might have some element of truth and which were to be repeated unless totally disproven.
In Samuels time, the prophet wise and sage.
During the sixteenth-century origin stories were reassessed and examined. They were not necessarily exercised out of all histories, nor removed from the popular beliefs concerning England’s past, but they were certainly not believed by all, or used simply as morality tales, no different than those of the fabled Robin Hood. This was a time when truth and fiction were increasingly becoming important terms used to split ‘real’ history from fables and legends. If the changes in understanding over origins are anything to go by, then the sixteenth-century was the point when historians really were beginning to reassess their role and purpose. They were not necessarily becoming ‘modern’, in our sense, but they were certainly not the same at the end of the century as they were at the beginning.
Thomas D. Kendrick, British Antiquity (Methuen: London, 1950).
John Rastell, The Pastime of People: The Chronicles of divers realms and most specially of the realm of England (London, 1530).
John Hardyng, The Chronicle of John Hardyng in Metre, from the first beginning of England, unto the reign of Edward IV where he made an end of his chronicle (London, 1543), p. vii.
John Foxe must have been asked why his Book of Martyrs was necessary or needed when he was writing it in the early 1560s. He seems to have feared that another book of History lacked readers as his audience was already overwhelmed by books. In his final preface to the first edition he reflects on those concerns. Foxe makes a declaration intended to prove the utility and profit of yet another history book, especially one so large. He notes that there are an infinite multitude of books ‘daily put forth everywhere’, many of which were to be regarded as superfluous and only made to pester the circumspect reader.
The concern was a simple one. Although they would not have admitted it, the reformers were partly to blame for the scattering of England’s manuscript heritage upon the purging of monasteries in the 1530s. Little had been done since to recover those texts – many of which were unique and irreplaceable.
Furthermore, the story of History told from generation to generation did not any longer fit the needs and requirements of a Protestant Church of England. That story claimed conversion to Christianity by the Pope’s hand. It argued for allegiance to Rome and the denouncement of any and all attempts to criticise that relationship.
Protestants, like Foxe, needed to retell the past in their own image. But, crucially, that retelling had thus far been piecemeal. Foxe mentions that ‘the number of trifling pamphlets may grow out of remembrance’. It was certainly a concern. Campaigns to bring over opinions can be won through bombardment of pamphlets and other writings, but these are a weak bridge, with little concrete foundation, stability or persistence. What was needed was a central resource from which those other works could be divulged. Foxe wanted to provide that foundation; a large work, containing all that was necessary: in essence the Acts and Monuments or Book of Martyrs that he was producing.
Foxe called it his duty and considering the interest and patronage given to him by the likes of Sir William Cecil, Archbishop Matthew Parker, and Edmund Grindal, then Archbishop of York; it most probably wasn’t an exaggeration, even if that was not quite what he meant. Previous to Foxe’s publication there were indeed a multitude of shorter texts published regarding the martyrs so recently burnt at the stake.
In 1559 Thomas Brice had published a poem which listed the Marian martyrs in order of the dates of their executions. The same year John Day printed The complaynt of veritie, made by Iohn Bradford, a short treatise that transcribed the martyrs writings. It was the first of many. In 1560 William Powell printed A frutefull treatise and full of heauenly consolation against the feare of death. Whereunto are annexed certaine sweete meditations of the kingdom of Christ ... Gathered by that holy marter of God, John Bradford. Bradford’s writings and examinations were also printed by William Griffith and William Copeland in 1561 as well as by Rowland Hall in 1562.
For other martyrs, Thomas Marsh published Arthur Golding’s A briefe treatise concerning the burnynge of Bucer and Phagius, at Cambrydge, in the tyme of Quene Mary. Also in 1559, Henry Sutton had printed The examination of the constante martir of Christ, Iohn Philpot. In 1562 Henry Bull had published An apologye made by the reuerende father and constante Martyr of Christe John Hooper (1562). In this text Bull noted that ‘manye frutefull workes did they [the Marian martyrs] write in prison…but fewe are come to lighte’. A year after the Acts and Monuments had seen print, Bull published the writings of Miles Coverdale as yet another example. Foxe also added to this growing collection with his Friendly Farewell, a collection of the writings of Nicholas Ridley.
It is probably these tracts that Foxe was referring to when he stated that he didn’t want to overload people with yet another book on the subject. His argument was that his book would be the last word on the subject; a synthesis of the other tracts in one big volume. In this, at least Foxe succeeded. Other than subsequent editions of his own book, there were relatively few other publications focused on martyrs after 1563. The Acts and Monuments had smothered all competition, and it had done so extremely well.
Whilst referring to Foxe for a more detailed account of the proceedings the 1577 and 1587 editions of Holinsheds chronicles record the same information that on April 10th Ridley and Latimer were taken to Windsor then the University of Oxford for dispute with the divines and learned men still remaining. Two days later they were taken to Convocation at St Paul’s Church (Holinshed, 1557: v. 4, p. 1719; 1587: v. 6, p.1102).
‘about this season diverse learned men being apprehended, and in prison for matters of religion, were brought before the bishops of Winchester and London, and other the bishops and commissioners appointed therefore: who upon the constant standing of the said learned men in their opinions, which they had taken upon them to maintain, as grounded upon the true word of God, as they protested, proceeded in judgement against them, and so diverse of them were burned at London in Smithfield, and in diverse other places’ (Holinshed, 1577: v. 4, p. 1719; 1587, v. 6, p. 1125).
(Holinshed, 1583: v. 4, p. 1719).
‘His shirt was made long down to his feet; his feet were bare. Likewise his head, when both his caps were off, was so bare, that one hair could not be seen upon it. His beard was long and thick, covering his face with marvellous gravity. Such a contenance of gravity moved the hearts both of his friends and of his enemies. And as for the recantation aforesaid, with many tears he protested, that he had subscribed to the same against his conscience, only for fear of death, and hope of life. Which seemed true: for when he came to the stake, and the fire kindled, he put his right hand into the fire, and held it there a good space, saying: that the same hand should first burn, because it held the pen to subscribe against his Lord God.’ (Holinshed: 1587, v. 6, p. 1131).
When Mary I came to the throne in England it was not long until she began to act against the more radical reformers. Many of high and low birth were burnt as heretics whilst others fled the country for the Rhineland. The evangelical historian and martyrologist John Foxe, famed for writing his Book of Martyrs during the subsequent reign of Elizabeth I provides us with our most vivid descriptions of these events.
‘…at the stake with Simon Miller to be burnt, when the fire came vnto her, she a little shronke thereat, with a voice crying once, ha. When the sayd Simon Miller hearde the same, he put his hand behind him towarde her, and willed her to bee strong, and of good cheare: For good sister (said he) we shall haue a ioyfull and a sweete supper. Whereat she being, as it seemed thereby strengthened, stoode as still and as quiet as one moste glad to finish that good worke whiche before most happily shee had begonne. So in fine she ended her life with her companion ioyfully, committing her soule into the hands of almighty God’.
In many cases multiple burnings took place at the same time. At Stratford-le-Bow thirteen were burnt at the stake in one fire. At Smithfield in London Thomas Loseby, Henry Ramsey, Thomas Thyrtell, Margaret Hyde, and Agnes Stanley ended their lives in one fire, whilst at Canterbury ten martyrs were put to the flame by Thornton, Bishop of Dover and Nicholas Harpsfield, Archdeacon of Canterbury.
‘At the middle post was the mother, the eldest daughter on the right hande, the youngest on the other. They were first strangled, but the Rope brake before they were dead, and so the poore women fell in the fire. Perrotine, who was then great with childe, did fall on her side, where happened a ruefull sight, not onely to the eyes of all that there stood, but also to the eares of all true harted Christians, that shall read this historye: For as the belly of the woman brast a sonder by vehemency of the flame, the infant being a fayre man childe, fel into the fire’.
Foxe focused on those who had stayed in England to face the wrath of Mary’s government. It was important for him and for those who supported his work that the martyrs were memorialised whilst Roman Catholics (for they blamed the burnings not just on Mary’s government but upon the whole Roman church) were vilified and revealed as a foreign enemy to Elizabeth’s England. That picture of English reformation survives to this day and its effects continue to ebb below the surface of British society. But it is not the whole picture and indeed historians and the public at large still grapple with the legacy of propaganda left by Elizabethan scholars, playwrights, politicians and clergymen.
There are numerous more examples many of which were graphic in both their portrayal of the burning itself and in the process leading to the burning. Historians have, in ever greater detail, examined many of these accounts and formed arguments around them. In particular, there is a current interest in comparing Foxe’s narrative to other sources – such as official documents – to check his authenticity. However, few have looked at alternative contemporary accounts in works of history such as Holinshed and Stow. It is therefore interesting to compare Foxe’s account of such events to that given in other near contemporary chronicles.
Tradition is an important aspect of our lives. This was equally true in the sixteenth-century as it is now, although it’s meaning and prominence in society has radically changed in that time. I have just finished reading the sociologist Edward Shils book entitled and on the subject of Tradition (published in 1981). To my knowledge there are few other books on the market that look in their entirety at tradition as a concept, and it is therefore still important for that reason alone. Shils himself has been credited as a social theorist on similar levels to Max Weber, Jűrgen Habermas and Michel Foucault, although as Stephen Turner has suggested, he is often misunderstood.
In this book Shils talks about two types of past. One that is real – that which has happened and left behind its residues. Then the other – a more mutable perception of that past based, admittedly on the residues left behind. The perceived past is capable of being retrospectively reformed by humans living in any given present. It is a past that is recorded in memory and writing, formed from facts, but pliable, open to interpretation, error, or even purposeful revision.
This description fits perfectly with what happened in the sixteenth-century. Reformers and evangelicals had a very specific perception of Christian history, one that became mutable to their purposes in degrading the Roman Catholic Church and raising theirs up in its stead. The argument ran that novelty was an error – a corruption made and designed by fallible humans. The only statement that could be confirmed as certain truth was biblical. God’s word was certain, unalterable.
This is nowhere made clearer than in present day politics. The coalition government in Britain is rapidly unpicking the state fabric – paving the way for privatisation in health, education, and communication systems. These systems are seen as holding the country back. Those who see otherwise are often accused of being backward looking themselves, recalling a mythical golden age that either never existed or certainly doesn’t exist any longer.
The idea of a golden age, a time when everything was better or perfect, has a very long history. We all look back wistfully to a happy time, when everything seemed good. In History such golden ages can come as a result of desired change. For instance, Mahatma Gandhi’s fight for Indian independence focused on an Indian past – located in the idea of a countrywide village community – a past that never existed other than in the minds of the people. Last year’s London Olympic Games opening ceremony revealed an imagined British past and present; one triumphant, quirky, and rich, but pretended, imagined in the minds of a nation. In both cases the idea of an imagined past constructed an image of a golden age in the conviction that it can provide the context for an improved future, changed somewhat from the perceived failures of the present.
We often talk about progress these days – in fact we have been talking about it for about four hundred years. Intrinsic to our beliefs is the concept that we must change and improve and never turn backward.
There is a great belief that practices, institutions and society need to be constantly changed, replaced or discarded in favour of new ones. The emphasis is always on improvement. If our skin is blemished or our nose is too big (or small) we change it, make improvements. Our houses grow, expand and change – new furniture is introduced, old is removed – it is a cycle, constant in its transference from one fashion to the next.
That wasn’t the case once. Progress was the beast, the thing that led to novelty and a distancing from the true path laid out for us by God. That was the predominant belief. Novelty was bad, a corruption from purity. Innovation was viewed as a human intervention, which was bad because God had already laid out our futures before it had even begun. Therefore our views and opinions about tradition and novelty are different than those that we study in the pre-modern times. They are reversed – to a degree – novelty is the sin, but so too might tradition, depending on whether it was the tradition that God had laid out, or the tradition built up by humans since then. For Roman Catholics these traditions were provided by God, through the priesthood, but for Protestants this was a corruption.
It’s almost ironic that in Britain Protestant is often referred to as a progressive faith in comparison to Catholic. Protestantism is often claimed as a lead-factor to Britain being capable of innovating and kick-starting the industrial revolution. But in truth it is the Catholic faith where traditions are built one upon the other that was the most progressive in the sixteenth-century. Protestantism represented rupture, but a rupture intended to revert to an even older tradition. It was not forward looking at all, not intentionally anyway, it was backward looking, more so than the Catholic Church of its time. So who really were the modernisers and why should progress and novelty always be seen as a good thing, while traditions and old ways are ignored, replaced, and looked upon with disdain?
Stephen Turner, ‘The Significance of Shils’, Sociological Theory, 17:2 (July 1999), pp. 125-145.
John Foxe makes various claims in his Acts and Monuments about what he is doing and why. His various prefaces, dedicated to all types of potential reader (the learned Protestant; the learned Roman Catholic; the unlearned; the Queen etc) make this explicitly clear.
I’m currently writing a chapter where I hope to introduce what it was Foxe thought he was doing when researching the pre-reformation portions of his book. Historians say many things about it over and over again (and I’m sure I will be as well, although hopefully I’ll have a few new things to say as well), but essentially Foxe is purporting to be writing the true history of Christianity and Britain’s role within it.
I highlight the word ‘true’ for a purpose, not just because this is what all historians claim to be doing, especially those in the sixteenth-century who wanted to convince their readers of the validity of their theological argument equally as much as their credentials as an historian, but because Foxe was making the argument for a revised past; one very different than the traditionally held story. He was equally making the case for the uplifting of the most popular sources for that history – Foxe used Ranulf Higden’s fourteenth century Polychronicon sparingly because it was the culmination of the monastic tradition. He attacked Polydore Vergil’s Anglica Historia at every opportunity because he was Italian and because he had offended England’s antiquarians by discrediting their origin stories. In reverse, Foxe lifted up Robert Fabyan’s London Chronicle and Matthew Paris’ Chronica Majoria as alternative and relatively purified sources.
This is a long quote, but it nicely summarises what Foxe sees as the true History. I am yet to decide if I’ll be using it whole in my final text or whether it would be best to break it down into parts, but I think what Foxe is saying here is important to understanding what it is he is trying to say in the Acts and Monuments as a whole.
Hello and a very warm welcome to my Sixteenth Century Scholars blog. Here I will write about my own findings and examinations of scholars (principally historians) in sixteenth century England. In particular I would like to open up a discussion on the process of writing history both in terms of the sixteenth century scholars that I study and in terms of our own experiences in studying them.
It must be noted that all writings on this blog represent my opinion and my opinion only. It does not in any way represent the opinions of my current employers nor that of any previous associations. It should also be noted that this blog is not intended in any way as a scholarly publication of finalised work. My writings here are intended purely as works in progress or as musings. Please keep this in mind whenever you read my posts. Thank you.

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U.S. DEPT. OF JUSTICE, et al., Defendants.
*1022 Susan C. Cassel, Office of U.S. Atty., Newark, N.J., for defendants.
Neil Mullin, Smith, Mullin & Kiernan, West Orange, N.J., for plaintiff.
On its motion for reconsideration, the government presents the following syllogism: (1) all information conveyed to the FBI during the course of a criminal investigation is furnished pursuant to an express or implied promise of confidentiality; (2) based upon such express or implied promise neither the source nor the content of the information received from such source may be disclosed; (3) therefore, all information gathered by the FBI from any source during a criminal investigation is exempt from disclosure under exemption 7(D) of FOIA. Neither the statute nor any binding judicial interpretation of it supports this contention.
A person is a confidential source if she or he provided information under an express assurance of confidentiality or under circumstances from which an assurance of confidentiality could be reasonably inferred. See Lame v. United States Dept. of Justice, 654 F.2d 917, 923 (3d Cir. 1981). Whether such an express or implied assurance of confidentiality was made is a question of fact to be determined in regard to each source. In this Circuit, the per se rule or presumption suggested by the government does not exist. To find as the government contends would totally eviscerate the statute and its policy and purpose. Only if there is a finding supported by competent evidence that a source is confidential does that source and all information provided by it become exempt from the disclosure requirement of FOIA. See Lame, id. The Court is entitled to receive and review detailed information as to each alleged confidential source. The blanket and generic exemption sought by the government is without support and defeats the policy of public exposure which prompted the statute in the first instance.
Where a person convicted of a serious crime can demonstrate, as petitioner has done here, that the prosecution possessed and concealed information which might have lead to petitioner's acquittal, such person and the public should be entitled to examine that information and the reasons and policies surrounding its concealment. Landano v. Dept. of Justice, 751 F. Supp. 502, 503 (1990) (emphasis added).
The government may believe that a policy of concealing exculpatory information, resulting in wrongful convictions is not a matter of public interest and concern. If so, all the more reason for the subject statute and the need to see beyond the *1023 government's representations and permit the public to form its own judgments.
Lastly, the court expresses its concern over the potential inconsistencies which could result from the differing approaches for determining whether information may be withheld under exemptions 7(C) or 7(D). Under the current case law, a court may determine that the FOIA-based public interest in disclosure of information out-weighs the privacy interests of an individual informant and the extent to which that informant's privacy would be invaded, thus allowing disclosure under exemption 7(C). However, if the informant was a confidential source, the court may be required to uphold the government's nondisclosure of that same information under exemption 7(D). These potential inconsistencies may run contrary to FOIA's overall policy of broad public disclosure.
This dispute arises out of two requests for FBI documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., plaintiff's September 30, 1988 request for information on the FBI's investigation of the murder of Police Officer Snow (FOIA Request No. 310265, "Snow Request") and plaintiff's January 10, 1989 request for information on Victor Forni (FOIA Request No. 306424, "Forni Request"). Because a thorough discussion of the history of this case appears in the court's November 29, 1990 opinion, the court will not repeat it here.
In its November 29, 1990 opinion and December 13, 1990 order, this court granted defendant's cross-motion for summary judgment and denied plaintiff's cross-motion for summary judgment with respect to the Snow file as to all FBI symbol source and file numbers, symbol numbers of confidential FBI informants, individual rap sheet information mentioned in defendant's Snow file, names of FBI informants or FBI undercover personnel, and information that could reasonably be expected to reveal the sources of confidential information. The court also denied defendant's cross-motion for summary judgment and granted plaintiff's cross-motion for summary judgment with respect to the Snow file as to the names of witnesses in the Snow investigation, the names of FBI support personnel, and the names of other law enforcement personnel not covered by the court's interpretation of categorical balancing. In light of Mr. Forni's consent to the release of his FBI file, this court also partially granted plaintiff's motion for summary judgment on his Forni request, allowing defendant to redact that file in a manner consistent with the court's opinion respecting the Snow file.
When adjudicating the withholding of information under FOIA, district courts must determine the matter de novo, requiring the defendant to bear the burden of proving that the information not released by defendant comes within a statutory exemption. § 552(a) (4) (B); King v. U.S. Dept. of Justice, 830 F.2d 210, 217 (D.C. Cir.1987). Courts reviewing FOIA requests must also give effect to the strong presumption in favor of releasing requested documents. I.E.B.W. Local No. 5 v. U.S. Dept. of Housing & Urban Development, 852 F.2d 87, 89 (3d Cir.1988).
The FBI claimed exemption 7(D) pursuant to plaintiff's Snow request to protect sources of information, including information obtained from non-federal law enforcement agencies, identified in the bank robbery investigation. Additionally, the FBI applied exemption 7(D) to information that could reasonably disclose the identity of a source (citations excluded) ... Symbol source materials were also withheld under this exemption, as well as information obtained from confidential sources. Defendant's brief in support of summary judgment at 20-21.
*1024 Contrary to defendant's position, this court did not apply an exemption 7(C)-type balancing test to determine what information may be withheld under exemption 7(D). It merely inquired into whether defendant had properly justified the withholding of the information under exemption 7(D).
In Cuccaro v. Secretary of Labor, 770 F.2d 355 (3d Cir.1985), the Third Circuit reiterated the holding of that court in Lame v. U.S. Dept. of Justice, 654 F.2d 917 (3d Cir.1981) that "a person is a confidential source if he or she provided information under an express or reasonably implied assurance of confidentiality." Cuccaro, 770 F.2d at 360. The Cuccaro court also noted that "where an investigative agency relies upon information supplied by individuals who might suffer severe detriment were their identities disclosed, assurances of confidentiality may reasonably be inferred." Id.
In Lame, the court declared that "[w]hether there is an expressed or implied assurance of confidentiality is a question of fact to be determined in regard to each source." Lame, 654 F.2d at 923. Despite shouldering the burden of proof as to the applicability of exemption 7(D) to the particular information withheld, defendant proffered no evidence to support its claim that persons protected by the FBI's withholding of information under exemption 7(D) were confidential sources. This circuit has not adopted the view proffered by defendant that promises of confidentiality are "inherently implicit" when the FBI solicits information. To do so would severely limit the breadth of agency disclosure available under FOIA. In limiting the government's power to withhold information in this case to that information which could reasonably be expected to disclose the identity of an undercover FBI agent or FBI informant, this court merely gave effect to the requirements set forth in Cuccaro and Lame and, in addition, determined that informational exchanges between the FBI and undercover FBI agents or FBI informants are subject to a presumption of confidentiality.
Section 7(D) provides two protections. It protects from disclosure: (a) "the identity of a confidential source" and (b) for a criminal law investigation, "confidential information furnished only by a confidential source" ... Once it has been determined that a source is confidential, all information that source has provided is exempt from disclosure under the second part of the exemption. Lame, 654 F.2d at 923-24.
This court agrees with defendant. Assuming that defendant can establish that a source is confidential, then the defendant may withhold all information from such sources. In other words, defendant may withhold under exemption 7(D) all information from those whom the court has determined to be confidential sources.
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to *1025 constitute an unwarranted invasion of personal privacy.
In reliance on exemption 7(C), "the FBI withheld the names of [s]pecial [a]gents, FBI support employees, police officers and other third parties. The FBI also withheld the initials of FBI employees." Defendant's brief in support of Summary Judgment, at 15.
Under the traditional balancing scheme applicable to exemption 7(C), where an individual mentioned in the withheld information has an interest in privacy, the court must determine whether to release that information by "weighing the public benefit which would result from the disclosure against the privacy interest and the extent to which it is invaded." Patterson by Patterson v. FBI, 893 F.2d 595, 601 (3d Cir. 1990), cert. denied, Patterson v. FBI, ___ U.S. ___, 111 S. Ct. 48, 112 L. Ed. 2d 24 (1990) (quoting Cuccaro, 770 F.2d at 359.). In U.S. Dept. of Justice v. Reporter's Committee for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989), however, the Supreme Court declared that "for an appropriate class of law enforcement records or information a categorical balance may be taken." Id. at 777, 109 S. Ct. at 1484. "Categorical decisions may be appropriate and individual circumstances disregarded", stated the court, "when a case fits into a genus in which the balance characteristically tips in one direction" Id. at 776, 109 S. Ct. at 1483.
If it is always true that the damage to a private citizen's privacy interest from a rap sheet's production outweighs the FOIA-based public value of such disclosure, then it is perfectly appropriate to conclude as a categorical matter that production of such [rap sheets] should reasonably be expected to constitute an unwarranted invasion of personal privacy. Id. at 779, 109 S. Ct. at 1484.
Applying the categorical balancing approach announced in Reporter's Committee to this case, this court determined that the FBI properly withheld the names of FBI informants and FBI undercover agents. However, this court concluded that the other information withheld by defendant under exemption 7(C) was not the type of information envisioned by the Supreme Court when it promulgated its exception to the particularized balancing approach traditionally associated with exemption 7(C).
In its brief, the government urges that the identity of all persons (including FBI support personnel) giving and receiving information pursuant to the FBI's investigation should be exempt from disclosure under the categorical balancing approach adopted in Reporter's Committee. Under the government's interpretation of categorical balancing, however, the public might be able to learn of agency wrong-doing without being able to identify those committing it or with knowledge of it. Because this result would confound the purposes of FOIA, this court will not extend Reporter's Committee in the manner suggested by the government.
After concluding that the remaining information did not qualify for categorical balancing, the court then applied the traditional 7(C) balancing approach, weighing, as best it could given the limited information provided by the government, the FOIA-based public interest asserted in this case against the individual privacy interests and the invasion of individual privacy associated with disclosure.
Reaffirming the view it expressed in Dept. of Air Force v. Rose, 425 U.S. 352, 372, 96 S. Ct. 1592, 1604, 48 L. Ed. 2d 11 (1975), the Reporter's Committee court declared that "whether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny ... rather than on the particular purpose for which the document is being requested." Reporter's Committee, 489 U.S. at 772, 109 S. Ct. at 1481. As stated above, this court's delineation of the FOIA-based public interest asserted in this *1026 case falls squarely within this definition. In challenging the court's delineation of the FOIA-based public interest, defendant mischaracterizes the court's analysis.
Where a person convicted of a serious crime can demonstrate, as petitioner has done here, that the prosecution possessed and concealed information which might lead to the petitioner's acquittal, such person and the public should be entitled to examine that information and the reasons and policies surrounding its concealment. Landano v. Dept. of Justice, 751 F. Supp. 502, 503 (emphasis added).
While not finding that the FBI had itself committed any wrongdoing, the court nonetheless recognized a FOIA-based public interest in this FOIA request on account of the investigative relationship between the ultimate prosecution of this matter and the FBI. This recognition of a FOIA-based public interest does not run afoul of Patterson.
In view of its finding that the FBI had not participated in any illegal conduct, the district court concluded that only a negligible benefit would inure to the public by releasing the names of FBI personnel. As a result of our independent examination of the documents, we find that the district court's conclusion is correct. Patterson, 893 F.2d at 601.
Patterson concerned the activity of one agency, the FBI, and documents the FBI held concerning its investigation of a child's request for information from various foreign countries. Even on those facts the court did not rule out the possibility that a FOIA-based public interest could be asserted. It only stated that, given no finding of illegal activity on the part of the FBI, any public benefit of disclosure would be "negligible" at best. Moreover, unlike the situation here, no specific finding of wrong-doing was made against any actor in Patterson.
The fact that the agency from whom the information has been sought is not guilty of any wrongdoing is not dispositive. Another agency may be the wrongdoer but the evidence may be found in the files of the "innocent" agency. For instance, the court offers the following hypothetical: The Environmental Protection Agency ("EPA") has investigated and recorded numerous instances in which large corporations have violated criminal environmental protection statutes by illegally polluting the environment. The EPA has passed this information on to the United States Attorney's Office in an effort to have these polluters prosecuted. Due to an illegal policy of not enforcing these environmental statutes against large corporations, the United States Attorney's Office refuses to prosecute the polluters. A newspaper reporter has reason to believe that the United States Attorney's Office is acting improperly by failing to prosecute the polluters. Under the government's interpretation of FOIA, that reporter would not be able to examine EPA files concerning the polluting corporations because the reporter cannot establish any wrong-doing on the part of the EPA.
That the larger coordinated activity in this case is tainted by wrong-doing must bear on whether plaintiff has asserted a legitimate FOIA-based public interest in favor of disclosure. This court does not believe that Patterson contemplated a policy that would bar public disclosure of information from one actor in a tainted coordinated activity because that actor had not itself been found to have committed any wrong-doing. Such a result would seem especially harsh where, as here, the information sought may shed further light on the government's role in the tainted coordinated activity, may potentially exculpate an individual who has been convicted of murder, and may reveal a policy of concealment which should concern us all.
In view of the FOIA-based public interest recognized by this court, the time which *1027 has elapsed since the Snow and Forni investigations, the information already known about persons sought to be protected, and defendant's failure to enunciate one case-specific reason why any of the persons sought to be protected by the government have a compelling interest in nondisclosure, this court must adhere to its prior decision that the FOIA-based public interest in disclosure of the information outweighs the individual privacy interests in nondisclosure in this case.
Defendant requests that this court stay its December 13, 1990 order pending appeal of this court's decision. In order to obtain a stay from this court, defendant must show a likelihood of success on the merits, irreparable injury absent a stay, that the public interest requires that a stay should be granted, and that plaintiff will suffer no injury thereby. Washington Metropolitan Transit Commission v. Holiday Tours, 559 F.2d 841 (D.C.Cir.1977). As defendant has not convinced this court that it meets this standard, and plaintiff would suffer injury if a stay were granted, this court denies defendant's application for a stay. In addition, on account of the time that has elapsed since its last order, this court extends the time for document production as specified in the order that follows.
For the foregoing reasons, this court grants defendant's motion and clarifies its prior decision and order.


UNITED STATES OF AMERICA, Plaintiff, v. OSCAR MORENO CORONADO, Defendant.
THIS MATTER comes before the Court on Defendant Oscar Moreno Coronado's Motion to Suppress for Evidence Obtained as a result of Violations of Amendment IV to the United States Constitution (ECF No. 62). The Court held a hearing on the motion on August 1, 2017. The Court, having considered the motion, briefs, evidence, argument, and otherwise being fully advised, concludes that the motion to suppress should be denied.
Special Agent William Baker has worked for the Drug Enforcement Administration ("DEA") since 2004. He has been involved in approximately 20 methamphetamine ("meth") investigations using undercover agents and surveillance techniques. Special Agent Baker contacted a paid confidential informant ("CI"), whose services the DEA used in other investigations in Miami and Houston. The CI knew Joshua Talamantes from a previous incarceration. Agents knew that Mr. Talamantes lived in Haskell, Texas and had a lengthy criminal history.
Special Agent Baker put the CI in touch with an undercover officer ("UC") with New Mexico State Police ("NMSP"). The UC and CI made arrangements for the CI to contact Mr. Talamantes. The CI called Mr. Talamantes and said he had a guy in Albuquerque that wanted to purchase meth and they exchanged numbers. The UC then began communicating with Mr. Talamantes directly via cell phone and for over a month tried to arrange the deal with Mr. Talamantes. The DEA paid the CI for his efforts.
The UC finally set up a deal to buy four pounds of meth on June 28, 2016. Mr. Talamantes agreed to meet the UC agents in the Lowe's parking lot near Interstate-40 ("I-40") and 12th Street in Albuquerque. Early in the day on June 28, 2016, Mr. Talamantes communicated with the UC that he was heading that way and would be there in a few hours. The agents knew Mr. Talamantes' identity and what he looked like from his driver's license and prior arrest photographs. Special Agent Baker arranged surveillance of Mr. Talamantes at the meeting location in Albuquerque using agents from the DEA, Department of Homeland Security ("HSI"), and NMSP. Agents set up a perimeter and were stationed at the Lowe's hardware store and at the nearby Walgreens and Four Winds gas station. Special Agent Baker was in a vehicle with the two UC officers and another agent.
Special Agent Baker's boss first identified Mr. Talamantes by his photographs when Mr. Talamantes pulled into the Four Winds gas station and parked next to him. Mr. Talamantes drove a black Ford Fusion with Texas plates. A female was in the car with him. Agents kept Mr. Talamantes under continual surveillance from that point until his arrest using ground and aerial units.
At approximately 2:45 p.m., Mr. Talamantes called the UC to let him know that he was waiting on his "boy" to come. Initially, agents thought that Mr. Talamantes was bringing the meth with him from Texas, but his communications with the UC about his boy bringing it led them to believe Mr. Talamantes was waiting for the drugs to be delivered to him. Agents believed that his "boy" referred to someone who would supply Talamantes with drugs.
Around 4:50 p.m., Mr. Talamantes drove to a Lowe's grocery store where agents followed him. Mr. Talamantes sat there for a couple minutes, and then he drove right back to the Four Winds gas station. He did not meet anyone at the Lowe's grocery store. Mr. Talamantes texted the UC again and said he was still waiting on his guy.
About 5:24 p.m., Mr. Talamantes pulled out of the parking lot and drove eastbound on I-40. While he was driving on I-40, Mr. Talamantes called the UC and said he had just met with his boy over at Eubank and gotten the meth and would meet back at the Four Winds gas station. Despite his statement, agents did not believe Mr. Talamantes had the meth yet, because he had waited nearly three hours to meet his contact and was driving towards, but had not yet reached, Eubank Boulevard. Mr. Talamantes exited at Eubank and drove to Hotel Circle where he parked in the back of the Amberly Suites Hotel. After less than a minute, a Mustang with Texas license plates pulled up to the Ford Fusion, and Mr. Talamantes had a short conversation with the other driver. Mr. Talamantes followed the other vehicle north on Eubank to a small strip center where they parked trunk-to-trunk behind one another. Special Agent Baker drove by the vehicles and observed Mr. Talamantes and the driver of the Mustang, later identified as Defendant Moreno Coronado, meeting. The meeting took place around 5:53 p.m.
HSI Agent Chris Martin drove by in another surveillance truck, and he saw Mr. Talamantes reach into the trunk of the Mustang, retrieve a bag from the trunk, and put it into his Fusion. The meeting lasted about three minutes. Mr. Talamantes and Defendant then got in their separate vehicles and began driving away. Shortly thereafter, Mr. Talamantes called the UC to say he had the stuff and to meet back at the Four Winds gas station. Based on his training and experience, Special Agent Baker believed that Defendant was the source of supply delivering methamphetamine to Mr. Talamantes. Special Agent Baker followed Mr. Talamantes in the Fusion back to I-40 and the gas station.
Meanwhile, Agent Chris Martin followed Defendant Moreno Coronado. Other DEA agents provided air surveillance of Defendant. In addition, agents had already prearranged an NMSP marked unit to conduct traffic stops as needed for the operation. While following Mr. Talamantes on I-40, Special Agent Baker instructed Agent Israel Rodriguez, who was a passenger in his vehicle, to call NMSP Sergeant Arsenio Chavez and tell him to arrest the driver of the Mustang for being the source of supply for the meth they suspected Mr. Talamantes was delivering to the UC.
Following the incident, Special Agent Baker spoke with Agent Martin and Sergeant Chavez. Based on those conversations, Special Agent Baker learned the following: Defendant, immediately after meeting with Mr. Talamantes, traveled north on Eubank Boulevard a couple blocks to another traffic light where he made a U-turn. Defendant then drove southbound on Eubank to westbound I-40. He proceeded to southbound Interstate 25 ("I-25"). At that time, Defendant started driving very fast, reaching speeds up to 100 miles per hour. Agent Martin had difficulty keeping constant visual surveillance on Defendant because he drove at high speeds, weaving in and out of heavy traffic. Defendant exited I-25 at the Isleta exit. Although Agent Martin and Sergeant Chavez were trying to catch up to him to do a traffic stop, they did not reach him until he was parked at the Isleta Casino and already out of his car. When Sergeant Chavez caught up to Defendant, he was walking towards the hotel. At that time, Sergeant Chavez arrested Defendant. Sergeant Chavez did not give Defendant his Miranda warnings at the scene, nor did he interview him. The basis for the arrest was Special Agent Baker's belief that Defendant was the source of supply of methamphetamine. The subjective purpose of the arrest was not because of the manner in which Defendant was driving.
Meanwhile, Mr. Talamantes arrived back at the Four Winds gas station. The UC agents drove to the Four Winds, parked, and texted they were there. Mr. Talamantes then got out of his Ford Fusion, brought the bag with him, and gave it to the UC. When the UC opened the bag, it contained approximately four pounds of methamphetamine. Agents arrested Mr. Talamantes and field-tested the substance. Agent Martin subsequently identified the bag as the same one that Mr. Talamantes removed from the trunk of Defendant's Mustang.
Several hours later, after agents transported Defendant to the DEA offices, Special Agent Baker advised Defendant of his Miranda rights. Defendant waived his rights and agreed to talk. Defendant moves to suppress the statements he made in the interview, arguing agents did not have probable cause to believe he was involved in a crime to support his warrantless arrest, in violation of the Fourth Amendment.
A warrantless arrest does not violate the Fourth Amendment so long as an officer has probable cause to believe that the arrestee committed a crime. Rife v. Oklahoma Department of Public Safety, 854 F.3d 637, 645 (10th Cir. 2017). Probable cause to arrest exists only when the facts and circumstances known to the officer are sufficient to warrant a man of reasonable caution to believe that a criminal offense has been or is being committed. Id.; United States v. Cruz-Mendez, 467 F.3d 1260, 1268 (10th Cir. 2006) (quoting United States v. Soto, 375 F.3d 1219, 1222 (10th Cir. 2004)). The probable cause determination is based on an objective standard looking at the totality of the circumstances. Id. A court looks at whether, given all the circumstances, there is a probability or substantial chance of criminal activity based on commonsense considerations. United States v. Pulliam, 748 F.3d 967, 971 (10th Cir. 2014). Although probable cause does not require certainty or proof beyond a reasonable doubt, it requires more than a mere suspicion of unlawful activity. United States v. Martin, 613 F.3d 1295, 1302 (10th Cir. 2010). Moreover, an arresting officer is entitled to rely on information or instructions relayed to him by other officers in making a seizure, even if the officer is not privy to all the facts amounting to probable cause. See United States v. Hinson, 585 F.3d 1328, 1334 (10th Cir. 2009); Koch v. City of Del City, 660 F.3d 1228, 1240 (10th Cir. 2011).
At the time Sergeant Chavez arrested Defendant Moreno Coronado, agents knew the following: (i) the UC had arranged to buy four pounds of meth from Mr. Talamantes in Albuquerque on June 28, 2016; (ii) Mr. Talamantes lived in Texas; (iii) Mr. Talamantes drove to Albuquerque and arrived at the pre-arranged meeting location for the drug transaction at 2:45 p.m.; (iv) despite being at the pre-arranged location, Mr. Talamantes told the UC he was waiting for his boy and put off their meeting for approximately three hours; (v) agents observed Mr. Talamantes waiting at the gas station for most of that nearly three-hour period; (vi) around 5:24 p.m., Mr. Talamantes drove eastbound on I-40, and while driving on I-40, he called the UC to say he had just met with his boy over at Eubank and gotten the meth and would meet back at the Four Winds gas station; (vii) Mr. Talamantes shortly thereafter exited at Eubank and met a Mustang with Texas license plates; (viii) Mr. Talamantes followed the other vehicle north on Eubank to a small strip center where they parked trunk-to-trunk behind one another; (ix) during the three-minute meeting, Mr. Talamantes retrieved a bag from the trunk of Defendant's Mustang and put it in his own car; (x) immediately thereafter, Mr. Talamantes drove back towards the Four Winds gas station and called the UC to say he had the stuff and to meet back at the Four Winds gas station.
In light of the totality of these facts, the Court concludes the agents had probable cause to believe that Defendant Moreno Coronado had committed the crime of drug trafficking. The Court recognizes that it would be a simpler case if agents had waited to arrest Defendant until after they confirmed drugs were in the bag Mr. Talamantes possessed. Nevertheless, this case is not one that involved a random bag transfer. Rather, UC agents had made specific arrangements to purchase meth from Mr. Talamantes in Albuquerque on that specific date and location. Mr. Talamantes, a Texas resident, waited in a parking lot for nearly three hours and, aside from the female with him, met only with Defendant, who drove a vehicle with Texas plates. Mr. Talamantes retrieved a bag from Defendant's trunk, and then shortly thereafter called the UC officer to inform him he had the drugs and would meet him at the gas station, the same pre-arranged meeting place to conduct the drug sale. Common sense and the known facts were sufficient to warrant a man of reasonable caution to believe that Defendant Moreno Coronado was involved in the criminal offense of drug trafficking and had supplied the meth to Mr. Talamantes. Officers need not rule out all innocent explanations for a suspect's behavior. Rife, 854 F.3d at 644-45 (and citing cases). The evidence known to agents here meets the probable cause standard of "probability or substantial chance of criminal activity." United States v. Biglow, 562 F.3d 1272, 1281 (10th Cir. 2009). Defendant's arrest therefore did not violate the Fourth Amendment.
Alternatively, Defendant's arrest was lawful because officers had facts to support an arrest based on reckless driving. "[A]n arresting officer's 'subjective reason for making [an] arrest need not be the criminal offense as to which the known facts provide probable cause.'" Rife, 854 F.3d at 646 (quoting Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). "Those are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest." Devenpeck, 543 U.S. at 155 (holding that officer's subjective intent is irrelevant and rejecting rule that offense establishing probable cause must be closely related to offense identified by arresting officer at time of arrest). See also United States v. Lopez, 849 F.3d 921, 928 (10th Cir. 2017) ("[I]f there was probable cause to arrest for a crime, it does not matter whether the officer subjectively detained the person for that crime."). Moreover, "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
In New Mexico, reckless driving is a petty misdemeanor offense, in which on a first offense, a convicted offender may receive a fine or "imprisonment for not less than five days nor more than ninety days," or both. N.M. Stat. Ann. § 66-8-113(B). A person commits reckless driving if he "drives any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property." Id. § 66-8-113(A). Speeding alone is insufficient to constitute reckless driving, but recklessness may be proven if the speeding created a danger to others and additional conduct shows the driver willfully disregarded the safety of others. State v. Munoz, 2014-NMCA-101, ¶ 10, 336 P.3d 424.
Although agents arrested Defendant for drug trafficking, not for reckless driving, an arrest is lawful if the facts provide probable cause to arrest a suspect on some ground. "[H]earsay testimony is admissible at suppression hearings such as the present one and should be considered by a district court in deciding whether an arrest was based on probable cause." United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004). Agent Martin and Sergeant Chavez did not testify, but Special Agent Baker testified to what they communicated to him and his testimony was credible. According to those communications, Agent Martin and Sergeant Chavez observed Defendant driving in excess of 100 mph, weaving in and out of heavy traffic. These facts provide a basis for a reasonable officer to believe that Defendant created a danger to other drivers on I-25 and willfully disregarded their safety. Defendant's arrest was thus lawful on the additional ground that there existed probable cause to arrest Defendant for reckless driving.
IT IS THEREFORE ORDERED that Defendant Oscar Moreno Coronado's Motion to Suppress for Evidence Obtained as a result of Violations of Amendment IV to the United States Constitution (ECF No. 62) is DENIED.