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Ruth has an eclectic practice which covers litigation, drafting and advisory work across the areas of tax litigation, insolvency, trusts, charities and public law. She appears frequently on these matters (led and unled) in the High Court, Tax Tribunals, Court of Appeal and Privy Council. Ruth has a strong offshore practice in the areas of chancery commercial litigation and administrative and public law and is heavily involved in a long-running series of judicial review and constitutional proceedings in The Bahamas.
Ruth’s government work is predominantly in the areas of tax and trusts: she appeared for HMRC in the Supreme Court appeals in Pitt v Holt and Futter v Futter; and is currently instructed by HMRC in a series of matters on appeal to the Court of Appeal on the application of transfer pricing rules to shareholder transactions and the meaning of ‘loss’ for corporation tax purposes.
TG Investments Ltd, Tom Gonzales v New Hope Holdings Ltd, Preben Olesen & others. Currently advising the plaintiffs in an action to recover $32.8m in loans and a $12m investment in the Port Lucaya Marina development (in receivership) The Bahamas.
Central Bank of Ecuador v Conticorp SA  UKPC 11;  1 B.C.L.C. 26;  Bus. L.R. D7 Acted in the Privy Council for the defendants to an action brought in the Bahamas by the Central Bank of Ecuador against an Ecuadorian company and its principal shareholders and officers for dishonest assistance in relation to transactions for the transfer to the defendant company of loans and shares in an ecuadorian bank in return for global depository receipts which subsequently proved to be valueless.
Harding v Thomas  acted for the Claimant in Chancery Division breach of trust, dishonest assistance and knowing receipt claim. Obtained freezing injunction and passport order; and summary judgment.
Mackinnon v The Regent Trust Company Limited  Obtained an interim injunction preventing the removal of trust assets from the jurisdiction in the context of Jersey trust litigation; disclosure application; scope of and exercise of discretion under CPR r. 31.14.
SGI Group v Wijsmuller & Ors : Advised Plaintiffs in substantial cross-border fraud and international trust case involving injunctive and other relief in Jersey and Anguilla (with Victor Joffe QC).
Central Parking System v Lawrenson & Ors : acted for Claimant in Chancery Division claim involving allegations of fraud, breach of fiduciary duty and accessory liability; and obtaining freezing injunction (with Hugh Norbury).
TG Investments Ltd, Tom Gonzales v New Hope Holdings Ltd, Preben Olesen & others. Currently advising the plaintiffs in an action to recover $32.8m in loans and a $12m investment in the Port Lucaya Marina development in The Bahamas.
Ardagh Group SA v Pillar Property Group Ltd  EWCA Civ 900 and  EWHC 3649 (Ch) Issue of construction of a share sale agreement entered into for capital gains tax planning purposes (led by Robert Miles QC in Chancery Division and Court of Appeal).
Mercury Tax Group (In Administration)  EWCA Civ 1379;  S.T.I. 3242; Times, January 19, 2011 (Court of Appeal) Acted for Claimant in successful appeal against chairman's decision not to admit HMRC's claims for voting purposes. Appeal turned on construction of Insolvency Rules 2.38 and 2.39 (unled in High Court; led by George Bompas QC in Court of Appeal).
Re Stakefield (Midlands) Ltd  EWHC 2518 (Ch);  Bus. L.R. 457 and  EWHC 3175 (Ch). Acted for Secretary of State in 3 week directors disqualification trial and in successfully resisting application to strike out proceedings on first day of trial on Art 6 HRA (right to a fair trial) grounds (led by Malcolm Davis-White QC).
Union Castle Mail Steamship Co Ltd v Revenue and Customs Commissioners  UKUT 316 (TCC) and  UKFTT 536 (TC) Instructed by HMRC in appeal about the use of the derivative contract rules to engineer £39m in tax deductible losses. Issues include the definition of ‘loss’ and ‘arise from’ and the decision of the Upper Tribunal is notable as it widens the application of transfer pricing rules to certain shareholder transactions (bonus share issues). The taxpayer’s appeal is likely to be heard by the Court of Appeal in 2019 along with the related appeal of Ladbrokes Finance Group plc v HMRC in which Ruth is also instructed.
Re Paulista Ltd (2010-2013) Advised the defendants in a multi-million dollar minority shareholder dispute and derivative claim relating to ownership of a Brazilian bank being litigated in the Bahamas. Involved in an appeal to the Privy Council on the issue of right to bring common law derivative action.
Re A Charity Ltd  Acting for the Charity Commission in charity proceedings being brought against directors of the charity and others for, inter alia, breach of fiduciary duty, knowing receipt and dishonest assistance in a breach of trust.
Vago v ACP Capital Ltd  Advised the plaintiff in Jersey proceedings relating to the exercise of share options. Settled.
Re City Truck Group Limited, Secretary of State for Trade and Industry v Gee & Ors  EWHC 350 (Ch);  All ER (D) 343 (Feb);  B.C.C. 76: acted for the DTI in company directors disqualification trial involving allegations of invoice discounting fraud (with Lance Ashworth QC).
Dominion Employee Benefit Trustees Ltd v Sochos  Advised Defendants in Jersey action for restitution arising out of a mistaken payment.
Split capital investment trusts [2003 —2004]: engaged by the Financial Services Authority in its investigation into alleged collusion and mis-selling by fund managers and brokers within the split capital investment trust sector which culminated in settlement with 18 of the firms who contributed to a £194 million compensation package for investors.
Sisu Capital Fund Ltd v. Tucker and others  BPIR 154;  1 All ER 167: Acted for two of the four KPMG respondents in the expedited trial of a challenge by certain minority creditors to CVAs in respect of a high-profile failed energy group; probably one of the largest cases ever to deal with an application to set aside a CVA; issue as to whether officeholders could recover costs in relation to the time spent by them and their staff on the case (with Michael Briggs QC, John Machell QC and David Drake).
Re Plummer  BPIR 767: acted for the Supervisor in a challenge to the validity of an IVA.
Dodds v Proprietors of Ocean Club West  Appeared in Supreme Court of TCI for Plaintiffs action re construction of the legislation governing ownership and management of luxury resort complexes in the Turks & Caicos Islands.
Chaffe & Ors v The Proprietors, Strata Plan No. 43 Villa Renaissance CL/89 of 2012 Appeared for the successful Plaintiffs in the Supreme Court of the Turks and Caicos Islands in an action re construction of the legislation governing ownership and management of luxury resort complexes in the TCI.
O’Connor v Proprietors of The Pinnacle.  Acted for proprietors.
Metaxides v Swart, Silver Point Condominium Apartments  UKPC 3 Case about the validity of a consent order settling proceedings in relation to the governance of a condominium association. Preliminary issue went to Privy Council on issue of validity of the order where there is a non-existent defendant or where defendant not party to the proceedings. Appeared for Respondents in Privy Council. Also advised successful Plaintiffs in main action in Supreme Court and Court of Appeal of The Bahamas and successfully resisted an application for leave to appeal to the Privy Council.
Oceania Heights v Willard Clarke Enterprise Ltd (2013) UKPC 3. Appeared in the Privy Council on appeal from the Court of Appeal of The Bahamas for the successful Appellants where the issue was whether a registered agreement for the sale of land took priority over a subsequent unregistered conveyance even where the conveyance was executed pursuant to an unregistered contract entered into before the relevant agreement.
Marwaha v Singh  Advised the Attorney General in relation to the appeal which concerned the circumstances in which the court will interfere with a discretion given to charity trustees under the governing documents of a charity.
Re A Charity  Acted for the Charity Commission in charity proceedings being brought against charity trustees and former employees for, inter alia, breach of fiduciary duty, knowing receipt and dishonest assistance in a breach of trust. Mediated settlement.
Pitt v Holt and Futter v Futter  EWCA Civ 197; (2011) 108(12) L.S.G. 19. Acted for HMRC in Supreme Court and Court of Appeal in its landmark challenge to the so-called rule in Hastings-Bass and equitable jurisdiction to set aside a voluntary disposition for mistake (led by Philip Jones QC).
C v Mackinnon  Advised counter-claimant in professional negligence counterclaim in Jersey arising out of Jersey trust litigation relating to sham trusts; including forum non conveniens challenge in Jersey Court of Appeal.
In Re the Estate of Wilfred Samuel Lamb Deceased, Shuck v Loveridge (a child) (2005)  EWHC 72 (Ch);  All ER (D) 306 (Jan): acted for the successful defendant in a challenge to the validity of a codicil on the ground of lack of knowledge and approval.
Cromwell v Copley  All ER (D) 339 (Feb) acted for the settlor claiming rectification of a declaration of trust.
Coalition to Protect Clifton Bay v The Prime Minister of the Commonwealth of The Bahamas and others [2013-2018] and Coalition to Protect Clifton Bay v Hon Jerome Fitzgerald MP and another  Advised the applicants in 4 high-profile judicial review challenges to various no action' decisions by the Bahamian government in relation to unauthorised land reclamation activities in the Bahamas and in ongoing related recusal, committal and enforcement proceedings.
Save The Bays & another v. (1) Hon. Frederick Mitchell (Minister of Foreign Affairs and Immigration) (2) Hon. Jerome Fitzgerald (Minister of Education, Science and Technology), and (3) Attorney General of The Bahamas, 2016/PUB/con/00016 Advised (with Prof Dan Sarooshi QC) the applicants in constitutional action resulting in a finding the Government and a Member of the Cabinet in the Bahamas in breach of the Constitution by referring in parliament to the applicant’s private correspondence. Raised important issues of supremacy of the Constitution over Parliament specifically parliamentary privilege.
Bimini Blue Coalition Ltd v The Prime Minister of the Commonwealth of The Bahamas and others  UKPC 23 Acted (unled) for the Appellants in two appeals before the Privy Council in relation to (i) the Court of Appeal of The Bahamas’ decision to release developers of a cruise ship terminal from an undertaking preventing them from dredging coral reef; in which the PC granted the Appellants an injunction; and (ii) the Supreme Court of the Bahamas’ decision to release the injunction.
Re Earth Ltd v Minister for Marine Resource, Prime Minister and others (2014) Advised applicants in successful challenge to decisions to allow an $8million dolphin facility to be constructed and operated and to grant dolphin import licences contrary to international conventions and domestic law on marine mammal protection. Succeeded in having international conventions applied.
Responsible Development of Abaco Ltd v Prime Minister of the Commonwealth of The Bahamas and others  Advised the successful applicants a in judicial review challenge to decisions to permit a bunker C oil burning power station to be constructed and operated in area of environmental importance. Resisted application for permission to appeal to the Privy Council.
Save Guana Cay Reef Association Limited v The Minister Responsible for Crown Lands and the Treasurer of the Bahamas and Ors  UKPC 44 Acted (unled) for the Appellants in a 3 day hearing before the Privy Council of an appeal against the Court of Appeal of the Bahamas' rejection of the Appellants' judicial review challenge to the Bahamian government's decision to approve a $500m development in the Bahamas. Obtained an injunction in the PC on the same case in 2005.
Norquil Ltd v HMRC and Ladbrokes Betting & Gaming Ltd v HMRC Acting for HMRCin two appeals relating to two similar tax avoidance schemes which exploit loan relationships using a bonus share issue to produce deductible losses of £84m and £94m respectively. The appeals are stayed pending the outcome of the appeal to the Court of Appeal in Union Castle (above).
Stagecoach Group Plc and Stagecoach Holdings Ltd v Revenue and Customs Commissioners  UKFTT (TC) 120 Instructed by HMRC in appeal in relation to whether the loan relationship regime in the Corporation Tax Act 2009 Pt 5 applied to a parent company's scheme to recapitalise its subsidiary.
Pitt v Holt and Futter v Futter  EWCA Civ 197; (2011) 108(12) L.S.G. 19. Acted for HMRC in Court of appeal and Supreme Court in landmark challenge to the so-called rule in Hastings-Bass and equitable jurisdiction to set aside a voluntary disposition for mistake (led by Philip Jones QC).
M R Klincke v Revenue & Customs Commissioners  UKFTT 156 (TC)  S.F.T.D. 466;  S.T.I. 2421 Acted for successful HMRC in appeal on the construction of s.132(3) of the Taxation of Chargeable Gains Act 1992 (whether the cancellation of a currency right amounted to a conversion of loan notes within the meaning of s.132(3)) (led by Michael Gibbon QC).
Drexler & Ors v HMRC instructed by HMRC in a tax appeal on whether holding and selling artworks and wines constitutes "making or holding investments" for the purposes of business property relief.
West Bromwich Albion FC v HMRC  Acted for HMRC in a tax appeal re construction of s.30 of the Capital Allowances Act 2001 relating to tax relief for a new stand for a football stadium (led by Timothy Brennan QC). Settled.
Harding v HM Revenue & Customs  EWCA Civ 1164;  S.T.C. 3499; 79 T.C. 885;  B.T.C. 772;  S.T.I. 2322 represented the successful respondent in resisting an appeal in the Court of Appeal on the construction of s.117(1)(b) of the Taxation of Chargeable Gains Act 1992 relating to the definition of qualifying corporate bonds where foreign exchange provisions have lapsed (led by Michael Furness QC).
Smith & Commissioners for HM Revenue & Customs  EWHC 2304 (Ch);  S.T.C. 1649; 78 T.C. 819;  B.T.C. 8010;  W.T.L.R. 147;  S.T.I. 2560; (2007) 157 N.L.J. 1506: successfully represented HMRC in a Chancery Division appeal from the Special Commissioners on the interpretation of s.263 of the Inheritance Tax Act 1984.
HM Revenue & Customs v X plc : acted for HMRC in transfer pricing claim against global multinational which subsequently settled (with Philip Jones QC and Charles Flint QC).
On to Protect Clifton Bay v The Prime Minister of the Commonwealth of The Bahamas and others [2013-2018] and Coalition to Protect Clifton Bay v Hon Jerome Fitzgerald MP and another  Advised the applicants in 4 high-profile judicial review challenges to various no action' decisions by the Bahamian government in relation to unauthorised land reclamation activities in the Bahamas and in ongoing related recusal, committal and enforcement proceedings.
"Sources single her out as being an astonishingly thorough and user-friendly advocate".
Junior Counsel to the Crown (C Panel) (2007).
Junior Counsel for the DTI in Directors’ Disqualification directions hearings (2003-2006).
Admitted ad hoc to the Bar of the Turks and Calcos Islands (2012).

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§153.1011. Beginning Teacher Induction and Mentoring Program.
(2) Beginning teacher--A classroom teacher who has less than two years of teaching experience in the subject or grade level to which the teacher is assigned.
(3) Beginning Teacher Induction and Mentoring Program--An annual grant program established in accordance with the Texas Education Code (TEC), §21.458, under which a school district may receive funds to establish a mentoring program at each eligible campus where a mentor teacher is assigned to each classroom teacher who has less than two years of teaching experience.
(4) Classroom teacher--An educator who is employed by a school district and who, not less than an average of four hours each day, teaches in an academic instructional setting or a career and technology instructional setting. The term does not include a teacher's aide or a full-time administrator.
(A) For a school district, a classroom teacher, as defined in this subsection, must hold an appropriate certificate issued by the State Board for Educator Certification and must meet the specifications regarding instructional duties defined in this paragraph.
(B) For a charter school, a classroom teacher is not required to be certified but must meet the qualifications of the employing charter school and the specifications regarding instructional duties defined in this paragraph.
(6) Mentor teacher--A classroom teacher in Texas who provides effective support to help beginning teachers successfully transition into the teaching assignment.
(7) School district--For the purposes of this section, the definition of school district includes open-enrollment charter school.
(8) School district board of trustees--For the purposes of this section, the definition of a school district board of trustees includes a charter holder board.
(6) training for administrators on implementing and supporting an induction and mentoring program.
(3) complete a mentor training program provided by the district.
(d) Assignment of a mentor teacher. Each school district may assign a mentor teacher to a beginning teacher.
(C) meet the qualifications specified in subsection (c) of this section.
(2) The organization may elect to use funds to employ retired teachers or other instructional personnel who meet the definition and qualifications of a mentor teacher described in this section.
(7) complete all requirements of the school district's beginning teacher induction and mentoring program.
(3) mentoring support through providers of mentor training.
(g) Audit of funds. The Agency may audit, disallow, and recover grant funds. A decision to award, audit, disallow, or recover funds by the commissioner or commissioner's designee is final.
(3) any other pertinent information deemed appropriate by the commissioner.
Statutory Authority: The provisions of this §153.1011 issued under the Texas Education Code, §21.458.
Source: The provisions of this §153.1011 adopted to be effective May 31, 2007, 32 TexReg 2859; amended to be effective June 7, 2010, 35 TexReg 4700.
(a) All school districts and open-enrollment charter schools shall provide suicide prevention training as required by the Texas Education Code (TEC), §21.451(d), to all new school district and open-enrollment charter school educators as a part of new employee orientation during the 2016-2017 school year.
(b) Each subsequent school year, school districts and open-enrollment charter schools shall provide suicide prevention training as required by the TEC, §21.451(d), to all new school district and open-enrollment charter school educators as a part of new employee orientation.
(c) All school districts and open-enrollment charter schools shall provide suicide prevention training as required by the TEC, §21.451(d), to all currently employed school district and open-enrollment charter school educators on or by September 30, 2016.
(d) Suicide prevention training that is required by the TEC, §21.451(d), and was provided to existing educators by a school district or open-enrollment charter school on or after September 1, 2013, may be used to meet the requirements of this section if the training program is on the recommended best practice-based list maintained by the Department of State Health Services (DSHS), in coordination with the Texas Education Agency (TEA), or is an online program that meets the TEA guidelines for independent review.
(e) In accordance with the Health and Safety Code, §161.325, school districts shall maintain records that include the name of each educator who participated in the suicide prevention training.
(f) Open-enrollment charter schools are encouraged to maintain suicide prevention training records that include the name of each educator who participated in the suicide prevention training.
Statutory Authority: The provisions of this §153.1013 issued under the Texas Education Code, §21.451(d).
Source: The provisions of this §153.1013 adopted to be effective April 17, 2016, 41 TexReg 2748.


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On the evening of 10 April 2013 (MDT) a massive landslide occurred at the Bingham Canyon copper mine near Salt Lake City, Utah, USA. The northeastern wall of the 970-m-deep pit collapsed in two distinct episodes that were each sudden, lasting ~90 seconds, but separated in time by ~1.5 hours. In total, ~65 million cubic meters of material was deposited, making the cumulative event likely the largest non-volcanic landslide to have occurred in North America in modern times. Fortunately, there were no fatalities or injuries. Because of extensive geotechnical surveillance, mine operators were aware of the instability and had previously evacuated the area. The Bingham Canyon mine is located within a dense regional network of seismometers and infrasound sensors, making the 10 April landslide one of the best recorded in history. Seismograms show a complex mixture of short- and long-period energy that is visible throughout the network (6–400 km). Local magnitudes (ML) for the two slides, which are based on the amplitudes of short-period waves, were estimated at 2.5 and 2.4, while magnitudes based on the duration of seismic energy (md) were much larger (>3.5). This magnitude discrepancy, and in particular the relative enhancement of long-period energy, is characteristic of landslide seismic sources. Interestingly, in the six days following the landslide, 16 additional seismic events were detected and located in the mine area. Seismograms for these events have impulsive arrivals characteristic of tectonic earthquakes. Hence, it appears that in this case the common geological sequence of events was inverted: Instead of a large earthquake triggering landslides, it was a landslide that triggered several small earthquakes.
Landslides are among the most destructive geological forces in nature, causing billions of dollars in damage annually (see landslides.usgs.gov [USGS, 2013]). For the period of 2004–2011, more than 32,000 landslide-related fatalities have been documented, not including those landslides caused by earthquakes (Petley, 2012). Here, we describe a recent massive landslide in Utah that was successfully forecast and thus resulted in no fatalities or injuries. Furthermore, it occurred within a dense regional network of seismic and acoustic sensors, generating a valuable and unique data set for studying landslide physics.
The landslide occurred on 10 April 2013 at the Bingham Canyon open-pit copper mine, located in the Oquirrh Mountains ~33 km southwest of downtown Salt Lake City, Utah, USA (Fig. 1A). Leaving a massive scar on the upper half of the northern pit wall, the slide filled the mine floor with thick debris (Fig. 1B). The long runout and distinctive flow-like character of the deposit suggest that the event was a particular type of extremely rapid mass movement known as a rock avalanche (Hungr et al., 2001).
(A) University of Utah seismic and infrasound network, and location of the Bingham Canyon mine. (B) Photograph of the 10 April 2013 rock avalanche (copyright Kennecott Utah Copper, used with permission). Elevation of the crest and toe of the slide are shown, as well as an estimate of the runout distance along the arcuate travel path. A group of large haul trucks damaged by the slide can be seen at lower left.
At more than 970 m deep, Kennecott’s Bingham Canyon mine is the largest man-made excavation in the world. It has been in operation since 1906 and produces 25% of the copper used in the United States. The site has produced more copper than any mine in history. For decades, mine operators have monitored the stability of pit slopes within the Bingham Canyon mine, operating a surveillance network that includes the latest techniques in early-warning monitoring, such as automated geodetic networks, in situ extensometers, and ground-based radar interferometry (e.g., Gischig et al., 2011). These monitoring systems proved crucial in first identifying, and then monitoring, the displacement of the incipient landslide on the northeastern wall of the Bingham Canyon mine.
Signs of increasing instability were evident throughout early 2013 as displacements accelerated within the unstable area. A visitor center, which had been located within the landslide source region, was closed and removed. Ultimately, on 10 April, movements became so strong that mine operators evacuated the area and issued a press release stating that failure was imminent and rising dust might become visible. The first rock avalanche occurred roughly seven hours later at 9:30 p.m. MDT. Because the area had been evacuated, there were no injuries; however, several pieces of heavy equipment and critical infrastructure were damaged or impacted. These included 14 haul trucks, three shovels, and the forced closure of the pit’s main access ramp.
Comparing digital elevation models from before and after the event, Kennecott estimated the landslide moved a total mass of 165 million tons (Kennecott Utah Copper, 2013), equivalent to a source volume of roughly 55 million cubic meters. As the source rock breaks up, it expands, typically by 10%–30%, so the deposit volume was likely in the range of 65 million cubic meters. For comparison, the deposit would cover New York City’s Central Park with ~20 m of debris. These volumes make the Bingham Canyon rock avalanche likely the largest non-volcanic landslide in North American history, eclipsing the recent 2012 Lituya Bay rock avalanche in Alaska (volume <50 million m3), the 2010 Mount Meager rock slide/debris flow in British Columbia (48 million m3), the 1965 Hope rock slide in British Columbia (47 million m3), the 1959 Madison River Canyon landslide in Montana (30 million m3), and the 1903 Frank slide in the Northwest Territories of Canada (30 million m3). In North America and worldwide, rock avalanches of this size routinely claim lives; the Madison River Canyon slide killed 28, the Frank slide killed up to 90, while the 2009 Xiaolin landslide in Taiwan (25 million m3) caused nearly 500 fatalities. These statistics highlight the potentially devastating consequences of catastrophic rock avalanches and emphasize the importance of early-warning monitoring systems, such as those used at the Bingham Canyon mine.
Rock avalanches are distinguished from other types of landslides by their massive volume and characteristically fast and long runout. While rock fall debris, for example, accumulates at steep inclinations close to the angle of repose, rock avalanche deposits can spread over many kilometers, leaving gently inclined, characteristically hummocky terrain containing highly crushed and fragmented, yet compact, debris. Typical flow velocities are in the range of tens of meters per second and can reach as high as 100 m/s (e.g., Crosta et al., 2004). In the past, such runout was often thought to be anomalous, but today we know it is common for source volumes of this size that fail in a catastrophic manner, although the precise mechanisms driving rock avalanche dynamics are still debated (Davies and McSaveney, 2012). Comparing the geometry (fall height and length) of the Bingham Canyon rock avalanche with other events from across the globe shows that, at roughly 2950 m, the total travel distance from crest to toe is within the expected range for events of this size (Fig. 2). The slide would likely have run farther had it not impacted the southern pit wall. Considerable variability exists within the global data set, however, and precise prediction of runout distance, even with the aid of numerical modeling, is challenging.
Comparison of the Bingham Canyon rock avalanche (red dot) with other reported landslide events from across the globe (figure modified from Bourrier et al., 2013, with data from C. Davidson, unpublished M.Eng. thesis, 2011). The estimated geometry results in a Fahrboeschung value (defined as the angle α relating the fall height and length) of 16°, which is within the expected range for events of this size.
Local news agencies reported initial cost estimates related to the Bingham Canyon rock avalanche approaching one billion dollars. If these estimates prove correct, the rock avalanche will become the most expensive landslide in U.S. history, surpassing the 1983 Thistle slide (also in Utah), which at the time was estimated to have cost between 460 and 940 million dollars (values adjusted for inflation). For now, the successful monitoring and hazard mitigation are heralded as an achievement, as well as an example to others facing the danger of catastrophic rock slope failures.
The University of Utah Seismograph Stations (UUSS) has operated a seismic network in the Utah region (Fig. 1A) since the early 1960s (Pechmann et al., 2007; Thomas et al., 2013) with the goal of detecting, locating, and characterizing regional earthquakes associated with the Intermountain Seismic Belt (Smith and Arabasz, 1991). The network is a Tier I component of the Advanced National Seismic System (ANSS) of the U.S. Geological Survey (USGS, 1999) and is funded via a state-federal partnership. As of 1 April 2013, the Utah network consisted of 200 seismographs, including broadband, accelerometer, and short-period sensors, generating 667 channels of 100 Hz seismic data, which are telemetered in near–real-time to the UUSS operations center and archived at the public data center of the Incorporated Research Institutions for Seismology (IRIS, see www.iris.edu). Station density is greater along the Wasatch Front, an area of high seismic hazard. In addition to the seismic network, UUSS operates nine infrasound arrays throughout the state in collaboration with Southern Methodist University and Los Alamos National Laboratory (Hale et al., 2010).
Seismic signals from the Bingham Canyon landslide were recorded by UUSS at distances ranging from ~6 to over 400 km, while infrasound signals were recorded at seven arrays at distances from 13 to 400 km. Inspection of the seismic data importantly revealed that the landslide consisted of two distinct rock avalanche events separated by ~1.5 h. Raw seismograms for the two rock avalanches appear similar and are dominated by persistent, long-period (>10 s) energy; however, isolation of the long-period signals reveals significant differences (Fig. 3). For example, low-passed data from the first rock avalanche show a high-amplitude peak near the end of the coda, a feature that the second event lacks; meanwhile, the timing of the two maxima differs by tens of seconds.
(A) Seismic and acoustic waveforms recorded at NOQ (13 km from slide), the closest broadband seismic station. Seismic traces are vertical component-velocity in different frequency bands (broadband, high-passed at 1 Hz, low-passed at 0.1 Hz); acoustic traces are infrasonic beams steered toward the mine in a pass band of 0.5–5.0 Hz. Gray box indicates time period with coherent signal originating from the mine. Amplitude scales are consistent for each pass band (i.e., they are consistent across each row). (B) Same as in (A) for seismic and acoustic waveforms recorded at station WMUT (57 km from the slide). Seismic traces were recorded by a short-period vertical-component seismometer.
Inspection of the infrasound data confirms that there were two distinct rock avalanche events. Figure 3 shows beams formed by steering the arrays at two stations, NOQ and WMUT, toward the mine. For the first rock avalanche, there is a coherent signal on both arrays, arriving at times consistent with the slide as the source. However, at NOQ (13 km from the mine) the energy consists primarily of a sharp impulse, while at WMUT (57 km from the mine) the energy is >30 s in duration with both a long onset and coda. Differences in the waveforms likely result from different atmospheric travel paths. For the second rock avalanche, array processing shows no coherent signal at NOQ coming from the mine, while the coherent signal at WMUT is short in duration and only slightly visible above background noise. Infrasound data from the second event are more difficult to discern because of increased background noise, possibly due to local winds (there was a rainstorm the night of the landslide).
We can use the seismic observations to generate first-order estimates of the relative volumes of the two rock avalanches. Comparing signal durations, peak amplitudes of the seismogram envelopes, and area underneath each envelope (as in Dammeier et al., 2011), we find that the two slides were roughly equal in volume; this would correspondingly split and move the data point presented in Figure 2. We note, however, that photographs suggest that the second rock avalanche likely contained a greater proportion of waste-rock deposited on the slope during previous mining and so may have had a lower bulk density than the first failure. Photographs also show that the first rock avalanche filled the entire pit floor, while the second apparently stopped short of the southern wall, suggesting the first slide may have been slightly larger.
The ultra-emergent nature of seismic signals from the rock avalanches made standard earthquake detection algorithms employed by UUSS ineffective. Such power detectors rely on short-term versus long-term averages and are tuned to alarm on impulsive P waves. However, the two rock avalanches were automatically detected and located using an algorithm based on the continuous back propagation of globally recorded long-period surface waves (Ekström, 2006), which has previously been successful in detecting large landslides (Ekström and Stark, 2013). The detection amplitudes correspond to surface-wave magnitudes (Ms) of 5.1 and 4.9 for the first and second events, respectively (G. Ekström, personal commun., 2013).
With no clear P-wave arrivals, UUSS determined the location for the two rock avalanches at 40.536°N 112.142°W using satellite images. Origin times of 03:30:22 and 05:05:22 on 11 April 2013 (UTC) were estimated by subtracting 1 s from the arrival time of the initial seismic energy at nearby stations (CFS, 6 km away; MID, 8 km away). Given the unknown phase of the first arrivals, we are unable to calculate a more precise time. Using the estimated location, local (ML) and duration (md, also known as Mc or coda magnitude) magnitudes for the first rock avalanche were calculated to be 2.5 and 4.2, respectively. For the second rock avalanche, the magnitudes were 2.4 and 3.5, respectively. Raw waveforms for each slide show two successive packets of energy with approximately equal peak amplitudes (Fig. 3A). For the first rock avalanche, the trailing packet is dominated by low-frequency energy, while for the second event it is rich in high-frequency energy. This secondary pulse of high-frequency energy for the second slide results in waveforms that differ from the typical coda decay seen in earthquakes or in the first rock avalanche (Fig. 3B) and makes comparison of duration magnitudes between the two events difficult. The md 3.5 for the second rock avalanche should thus be considered a lower bound.
The two UUSS magnitudes scales are designed to overlap seamlessly. For the 6,664 earthquakes that occurred in the Utah region during 2000–2011 and were large enough for ML to be estimated, the mean ML–md difference is only −0.12 with a standard deviation of 0.30. Therefore, the large ML–md values observed for the two rock avalanches (−1.7 and <−1.1) are indicative of non-earthquake seismic sources, and are consistent with enhanced ratios of long-period to short-period energy relative to earthquakes (cf. Fig. 3). This, in turn, is consistent with previous seismic observations of landslides showing large Ms–mb differences compared to earthquakes (Weichert et al., 1994).
There were no obvious seismic or acoustic signals preceding the first rock avalanche. However, immediately following the second slide, an ML 2.5 (md 3.0) earthquake, plus three smaller quakes, occurred at shallow depths (<2 km) beneath the mine. All four of these events were automatically detected and located using normal UUSS procedures. The events have short impulsive waveforms (Fig. 3) that are characteristic of tectonic earthquakes and unlike the rock avalanche waveforms. Cross-correlation analyses using the ML 2.5 event and the three smaller quakes as templates (Kubacki et al., 2013) suggest the existence of twelve additional earthquakes, with magnitudes ranging from ML −0.8 to 0.5. Six occurred between the two rock avalanches, five occurred in the two days following the second rock avalanche, and one occurred ten days later on April 20 (Fig. 4). There were no earthquakes detected in the ten days preceding the first slide. The coincidence between the timing of these tectonic events and the landslide suggests the tectonic events are triggered aftershocks of the rock avalanches. Other shallow, non-earthquake seismic sources, such as mine collapses (Pechmann et al., 2008) and nuclear explosions (Ford and Walter, 2010), have been known to generate aftershock sequences. The causative nature of aftershock triggering at the Bingham Canyon mine can be confirmed by detailed analysis of previous seismicity in the area, which will be pursued in a future study.
Time period of cross-correlation template analysis. Earthquake activity began shortly after the first rock avalanche and ceased 10 days later.
How is the geometry of the rock avalanches reflected in the geophysical data?
Do the seismic and infrasound signals have a common source?
Are differences in the seismic and infrasound signals of the two rock avalanches related to different physical properties of the mass flows?
Can the long-period seismic radiation be well fit by an equivalent-force model dominated by a single force, or is a more complex source model required?
How are the 16 small seismic events (~−0.8–3.0 md) that occurred in the mine area in the ten days following the landslide related to the two rock avalanches?
This work was partially supported by the State of Utah under a line-item appropriation to the University of Utah Seismograph Stations (UUSS) and by the U.S. Geological Survey, Department of the Interior, under USGS award number G10AC00085. We thank Kennecott Utah Copper for providing the photograph used in Figure 1. Figures 1A, 3, and 4 were drawn using the Generic Mapping Tools (http://gmt.soest.hawaii.edu/; Wessel and Smith, 1998).
Bourrier, F., Dorren, L., and Hungr, O., 2013, The use of ballistic trajectory and granular flow models in predicting rockfall propagation: Earth Surface Processes and Landforms, v. 38, p. 435–440, doi: 10.1002/esp.3372.
Crosta, G.B., Chen, H., and Lee, C.F., 2004, Replay of the 1987 Val Pola landslide, Italian Alps: Geomorphology, v. 60, p. 127–146, doi: 10.1016/j.geomorph.2003.07.015.
Dammeier, F., Moore, J.R., Haslinger, F., and Loew, S., 2011, Characterization of alpine rockslides using statistical analysis of seismic signals: Journal of Geophysical Research, v. 116, F04024, doi: 10.1029/2011JF002037.
Davidson, C., 2011, Rock avalanches [unpublished M.Eng. thesis]: Vancouver, University of British Columbia, 13 p.
Davies, T., and McSaveney, M., 2012, Mobility of long-runout rock avalanches, in Clague, J.J., and Stead, D., eds., Landslides: Types, Mechanisms and Modeling: New York, Cambridge University Press, p. 50–58.
Ekström, G., 2006, Global detection and location of seismic sources by using surface waves: Bulletin of the Seismological Society of America, v. 96, p. 1201–1212, doi: 10.1785/0120050175.
Ekström, G., and Stark, C.P., 2013, Simple scaling of catastrophic landslide dynamics: Science, v. 339, p. 1416–1419, doi: 10.1126/science.1232887.
Ford, S.R., and Walter, W.R., 2010, Aftershock characteristics as a means of discriminating explosions from earthquakes: Bulletin of the Seismological Society of America, v. 100, no. 1, p. 364–376, doi: 10.1785/0120080349.
Gischig, V., Amann, F., Moore, J.R., Loew, S., Eisenbeiss, H., and Stempfhuber, W., 2011, Composite rock slope kinematics at the current Randa instability, Switzerland, based on remote sensing and numerical modeling: Engineering Geology, v. 118, no. 1–2, p. 37–53, doi: 10.1016/j.enggeo.2010.11.006.
Hale, J., Arrowsmith, S., Hayward, C., Burlacu, R., Pankow, K., Stump, B., Randall, G., and Taylor, S., 2010, Infrasound Signal Characteristics from Small Earthquakes, in Proceedings of 2010 Monitoring Research Review: Ground-Based Nuclear Explosion Monitoring Technologies, LA-UR-10-05578, p. 720–730.
Hungr, O., Evans, S.G., Bovis, M.J., and Hutchinson, J.N., 2001, A review of the classification of landslides of the flow type: Environmental & Engineering Geoscience, v. 7, no. 3, p. 221–238.
Kennecott Utah Copper, 2013, Early estimates of slide impacts released, Newsroom, April 16, 2013: http://www.kennecott.com/slideupdates/early-estimates-slide-impacts-released (last accessed June 2013).
Kubacki, T.M., Koper, K.D., Pankow, K.L., and McCarter, M.K., 2013, Cross-correlation detection of seismic events related to the Crandall Canyon Mine collapse: Morgantown, West Virginia, USA, in Proceedings of the 32nd International Conference on Ground Control Mining, 30 July–1 Aug. 2013, 6 p., http://icgcm.conferenceacademy.com/papers/detail.aspx?iid=1380 (last accessed 11 Oct. 2013).
Pechmann, J.C., Nava, S.J., Terra, F.M., and Bernier, J.C., 2007, Local magnitude determinations for intermountain seismic belt earthquakes from broadband digital data: Bulletin of the Seismological Society of America, v. 97, p. 557–574, doi: 10.1785/0120060114.
Pechmann, J.C., Arabasz, W.J., Pankow, K.L., Burlacu, R., and McCarter, M.K., 2008, Seismological report on the 6 August 2007 Crandall Canyon Mine collapse in Utah: Seismological Research Letters, v. 79, no. 5, p. 620–636, doi: 10.1785/gssrl.79.5.620.
Petley, D., 2012, Global patterns of loss of life from landslides: Geology, v. 40, no. 10, p. 927–930, doi: 10.1130/G33217.1.
Smith, R.B., and Arabasz, W.J., 1991, Seismicity of the Intermountain Seismic Belt, in Slemmons, D.B., Engdahl E.R., Zoback, M.D., and Blackwell, D.D., eds., Neotectonics of North America: Geological Society of America Decade of North American Geology, Map 1, scale: 1:5,000,000, p. 185–228.
Thomas, G., Koper, K.D., Burlacu, R., and Drobeck, D., 2013, A model of ambient seismic noise recorded by the Utah regional network of strong-motion seismometers: Seismological Research Letters, v. 84, p. 759–771, doi: 10.1785/0220130026.
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UNITED STATES of America, Appellee, v. David FIGUEROA–OCASIO, Defendant, Appellant.
Before TORRUELLA, KAYATTA and BARRON, Circuit Judges. Cathryn A. Neaves, on brief for appellant. Francisco A. Besosa–Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
The district court in this case accepted the defendant's straight plea of guilty to firearms charges without taking all the steps necessary to determining that the plea was entered intelligently and knowingly. The district court also employed an erroneous illustration of the requisite mens rea in order to defuse the defendant's suggestion that he lacked the knowledge needed to support a conviction, thereby leaving us with a record in which it appears that a person pleaded guilty because he was misinformed about the elements of the crime. Finally, the district court also committed procedural error at sentencing by incorrectly calculating the applicable sentencing guideline range. We therefore vacate the conviction and the sentence and remand for proper consideration of the proposed plea and such further proceedings as are then called for.
David Figueroa–Ocasio (“Figueroa”) and three others were charged in a four-count indictment alleging various gun offenses—namely, violation of 18 U.S.C. § 922(g)(1) (prohibited person in possession of a firearm); § 922(j) (possession of a stolen firearm); § 922(o) (possession of a machine gun); and § 922(q)(2)(A) (possession of a firearm in a school zone). The charges arose from a traffic stop that occurred at 2:20 a.m. on January 9, 2012, in San Juan, Puerto Rico. At the time of the stop, Figueroa was seated as a passenger behind the driver of the vehicle. The record does not indicate who owned the vehicle. Police found inside the vehicle three firearms, all Glock pistols—two during the traffic stop and one later, during an inventory at the municipal police precinct.1 It is not clear where the police found the first firearm, later determined to have been stolen, although the record suggests it may have been stashed between the vehicle's center console and the front seat.2 The second firearm was found somewhere “in the floor of the car.” The record provides no evidence as to where in the vehicle the police found the third firearm, which had been adapted to fire in fully automatic mode. None of the firearms were found on the persons of any of the defendants. There was no evidence as to who owned the firearms. Although the record states that the authorities conducting the search asked whether any of the defendants possessed firearms licenses, the record does not indicate how the defendants answered.
Figueroa was charged with possession of all three firearms in count 1, the “felon in possession” count. The other defendants were charged with aiding and abetting. In the other three counts, all four defendants were charged with possession of the respective firearms and with aiding and abetting.
On March 1, 2012, Figueroa appeared in the district court to enter a straight plea of guilty to the indictment.3 The hearing was conducted with the assistance of a court interpreter.
The hearing commenced uneventfully. Figueroa made it clear, both through counsel and personally, that he wanted to plead guilty. Defense counsel stated that his client “expressed to us that he would plead guilty rather than go to trial.” The district court then confirmed with counsel that Figueroa was “pleading guilty to all the counts[,]” a “[s]traight plea.” Defense counsel confirmed that Figueroa was “pleading guilty, period.” Next, the court asked Figueroa directly whether he had “made a conscious decision to plead guilty to every single count of the Indictment. ․ Is that what you want to do, sir?” Figueroa answered, “Yes.” The court asked Figueroa whether he was competent to plead, whether he believed that defense counsel was competent, and whether he had had ample time to discuss his case with counsel. The court did not directly ask Figueroa whether he was entering his plea voluntarily and of his own free will.
The district court then summarized the indictment. The court summarized count 1 thus: “[Y]ou are a prohibited person, a convicted felon, and you were in possession of a firearm.” Summarizing count 2, the court stated, “[Y]ou possessed stolen firearms or you aided and abetted others in possessing stolen firearms.” The court then described count 3 as “the illegal possession of a machine gun or aiding and abetting others in the possession of a machine gun.” Counsel interjected, “It's an automatic gun,” whereupon the court amended its explanation of the charge, stating, “It's an automatic gun, not a machine gun.”4 Finally, the court described count 4 as charging that “firearms were possessed in a school zone or that you aided and abetted others in possessing firearms in a school zone.” The court asked Figueroa whether he understood “that those are basically the charges,” although it did not ask whether Figueroa understood the charges themselves. The court did ask Figueroa whether he understood that “the Government has to prove ․ who you are and your relationship to these facts alleged in the Indictment so that we can make an association between the facts alleged and you.” Figueroa agreed that he understood. The court also asked Figueroa whether he understood that the Government had the burden of proving that all the actions alleged in the indictment “were entered into by you knowingly, willfully and unlawfully ․ with a bad purpose to disobey or disregard the law, and not because of mistake, accident, or other innocent reason․ [Y]ou were doing something that the law forbids and you knew it.” Figueroa again agreed that he understood.
THE COURT: Then another—Count Two would be that one of those firearms ․ had been shipped or transported in interstate commerce knowing or having reasonable cause to believe that the firearm had been stolen.
THE DEFENDANT: He says he didn't know it was stolen.
THE COURT: You did not buy from an armory with a license for example?
THE COURT: So would it be fair to say that there was a possibility when you bought it or wherever you bought it or found it or took it, God knows how it got there, it could have been stolen?
THE COURT: Okay. And ․ on top of that, you and the others unlawfully possessed in and [a]ffecting interstate commerce the firearms and ammunition that we have been talking about within a distance of 1,000 feet of the ground of the Sagrado Corazon Academy school. I guess it's in Santurce?
THE COURT: A place that you had reason to believe was a school zone.
[DEFENSE COUNSEL]: The client accepts that that happened. He said it was a coincidence.
THE COURT: But he knew there was a school there? Everybody knows there's a school, Sagrado Corazon, in Santurce. Well, it's common knowledge. You can see the school from the street.
Do you understand that, sir?
THE COURT: Okay. Do you have any doubt about the charges that you're pleading guilty to, possessing firearms, being a convicted felon? Possessing one of those firearms that happened to be stolen? Possessing one of those firearms that happened to be an automatic firearm converted or otherwise, and it so happened all these firearms were possessed in a school zone?
Do you have any doubt about that?
THE COURT: No doubt? Do you have a doubt or no doubt? No doubt?
The court did not explain aiding and abetting liability to Figueroa.
Instead, the district court moved on to sentencing, explaining the possible penalties, including forfeiture, fines, and supervised release, for the charged offenses, and confirming that Figueroa understood. The court also explained that some of the sentences could be consecutive and that a sentence could be imposed within, above, or below the range calculated under the Sentencing Guidelines or as determined by the court, within its discretion, according to the sentencing statute. Figueroa confirmed that he understood.
The Government then proffered the facts it would have offered at trial. Entirely absent from the Government's proffer was any specific allegation of knowledge or intent as to any element of any of the charged offenses. Also absent from the Government's proffer was any specific allegation that Figueroa was in possession or constructive possession of a firearm at any time or, for that matter, that he knew or had reasonable cause to know there were firearms in the vehicle.
THE COURT: Do you admit that these facts occurred as outlined by the prosecutor, sir?
THE COURT: So you, aided and abetted by others, or others aiding and abetting you, whatever way you want to call it, were in possession of these firearms in that car?
THE COURT: Do you still want to plead, sir?
While the district court asked Figueroa whether he had been subjected to force, threats, or inducements to plead, and Figueroa denied having been, the court did not make an express finding on the record as to whether Figueroa's plea was knowing and voluntary, nor did it make a finding as to whether there was a sufficient factual basis for the plea.
A Presentence Investigation Report (PSR) was issued on May 2, 2012. Applying the November 1, 2011, version of the United States Sentencing Guidelines Manual (USSG), the PSR grouped all four counts together under USSG § 3D1.2(a) because they involved the same transaction. The PSR found a base offense level of 22 under USSG § 2K2.1(a)(3), because the offense involved a semiautomatic firearm capable of accepting a large capacity magazine and Figueroa had committed the offense after a felony conviction for a crime of violence. The PSR added 2 levels under USSG § 2K2.1(b)(1), because the offense involved 3 firearms and another 2 levels under USSG § 2K2.1(b)(4), because one of the firearms was reported stolen.6 With a 2–level reduction for acceptance of responsibility, Figueroa's total offense level was 24.
The sentencing hearing was held on July 5, 2012. Defense counsel stated on the record that he had “no issues” with the PSR. After summarizing the facts as detailed at the change of plea hearing and in the PSR, the district court took Figueroa's allocution. The Government recommended a sentence of 71 months.
The district court then requested that counsel join it in a side-bar conference to discuss the requirement under 18 U.S.C. § 924(a)(4) that any sentence imposed for violation of 18 U.S.C. § 922(q)—here, Figueroa's count 4—not run concurrently with any other term of imprisonment. Grouping only counts 1–3, the court stated that the guideline range for the grouped counts was 57–71 months and, after initially implying that Figueroa's § 922(q) violation (count 4) carried a mandatory sentence of 60 months, the court later characterized 60 months as a “high end” sentence for a § 922(q) offense. The court then calculated the consecutive sentence to be imposed for violation of 18 U.S.C. § 922(q), concluding in conformity with USSG § 2K2.5 that, given a total offense level of 6 for the § 922(q) violation and Figueroa's CHC of II, the guidelines range of imprisonment was 1–7 months.8 Concurring with the Government's recommendation, the court imposed a sentence of 71 months' imprisonment for grouped counts 1–3 and a consecutive sentence of 7 months' imprisonment for count 4, the 18 U .S.C. § 922(q) count, resulting in a total sentence of 78 months' imprisonment.
Playing the role of a potted plant, defense counsel offered no objection throughout the proceedings, and then on appeal filed an Anders10 brief, which we rejected, ordering that the appeal proceed with counsel.
Figueroa argues that the district court erred in accepting his plea because the record does not show that his plea was entered intelligently and knowingly. He also argues that the court committed procedural error by imposing a sentence contrary to the guidance provided by USSG §§ 2K2.5 and 3D1.1. Finally, Figueroa alleges ineffective assistance of counsel. These arguments were not raised below, so ordinarily, as Figueroa here concedes, we would review for plain error, see United States v. Pagán–Ferrer, 736 F.3d 573, 593 (1st Cir.2013), cert. denied sub nom. Vidal–Maldonado v. United States, –––U.S. ––––, 134 S.Ct. 2839, 189 L.Ed.2d 810 (2014); United States v. Borrero–Acevedo, 533 F.3d 11, 15 n. 4 (1st Cir.2008) (noting that the U.S. Supreme Court has confirmed that unpreserved claims of plea-process error are subject to plain error review (citing United States v. Vonn, 535 U.S. 55, 58–59, 61, 62 n. 4, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Gandia–Maysonet, 227 F.3d 1, 5 (1st Cir.2000))).
Inexplicably, however, the Government's brief does not respond to the issues presented in Figueroa's brief, including the allegations of error under Federal Rule of Criminal Procedure 11, which governs the plea process, and under USSG §§ 2K2.5 and 3D1.1, but responds rather to the issues raised in a previously filed Anders brief. The Government also does not address what standard of review should apply. We have stated that “[w]hen the government fails to request plain error review, we, and many of our sister circuits, review the claim under the standard of review that is applied when the issue is properly preserved below.” United States v. Encarnación–Ruiz, 787 F.3d 581, 586 (1st Cir.2015) (citing United States v. Tapia–Escalera, 356 F.3d 181, 183 (1st Cir.2004)). On the other hand, even if the Government had made an affirmative concession as to the standard of review, we would not be bound by it. See Borrero–Acevedo, 533 F.3d at 15 n. 3 (citing United States v. Mescual–Cruz, 387 F.3d 1, 8 n. 2 (1st Cir.2004)). In any event, we believe Figueroa has met the more stringent plain error standard, and so that is the standard under which we proceed.
To show plain error, a defendant must demonstrate “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ “ Borrero–Acevedo, 533 F.3d at 15 (alterations in original) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)); accord United States v. Padilla, 415 F.3d 211, 218 (1st Cir.2005) (en banc) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001)).
“In applying plain error analysis in guilty plea cases, a defendant must, in order to demonstrate that his substantial rights were affected, ‘show a reasonable probability that, but for the error, he would not have entered the [guilty] plea.’ “ United States v. Caraballo–Rodriguez, 480 F.3d 62, 69 (1st Cir.2007) (alteration in original) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)); see also United States v. Delgado–Hernandez, 420 F.3d 16, 28 (1st Cir.2005) (finding that deficiencies in the Government's factual proffer do not create plain error if defendant is otherwise aware of Government's evidence against him). “A defendant must thus satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” Caraballo–Rodriguez, 480 F.3d at 69–70 (quoting Dominguez Benitez, 542 U.S. at 83); see also Ramirez–Burgos v. United States, 313 F.3d 23, 29 (1st Cir.2002) (“An error affects substantial rights if it was ‘prejudicial,’ meaning that the error ‘must have affected the outcome of the district court proceedings.’ “ (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993))).
Federal Rule of Criminal Procedure 11 requires that the district court make the defendant aware of “the nature of each charge to which the defendant is pleading.” Fed.R.Crim.P. 11(b)(1)(G). Indeed, “ensuring that the defendant understands the elements of the charges that the prosecution would have to prove at trial” is “a ‘core concern’ of Rule 11.” Gandia–Maysonet, 227 F.3d at 3 (citations omitted). And “reviewing courts have been willing to intervene” when, as here, an error in the plea process implicates that “core concern.” Id. In United States v. Gandia–Maysonet, for example, we vacated a plea as not knowing and voluntary when the district court and the plea agreement both misstated the scienter requirement for carjacking. Id. at 4–6. We found the misstatement in Gandia to be obviously erroneous. See id. The same is true in this case.
Here, the court did not ensure that Figueroa understood what the Government needed to prove against him to support a conviction. There was no plea agreement to evidence that Figueroa had reviewed and acknowledged prior to the hearing the nature of the charges and the significance of pleading guilty. At the hearing, the court did not ask Figueroa whether he had read the indictment, nor whether he had reviewed it with his attorney and understood it.11 The court muddied what thin record there was by repeatedly asking confusing, compound, and/or internally contradictory questions and by failing to follow up sufficiently on Figueroa's denials or ambiguous statements regarding the elements of the charged offenses. Given all the attendant circumstances, we believe the record leaves significant doubts about Figueroa's understanding of the nature of all the charges.
Moreover, the plea colloquy itself did not provide illumination. The court did not adequately explain, and misstated the Government's burden in proving, the requisite mens rea. While the court explained in general terms, and Figueroa acknowledged he understood, that the Government had the burden to prove that the acts alleged in the indictment “were entered into by [Figueroa] knowingly, willfully and unlawfully ․ with a bad purpose to disobey or disregard the law, and not because of mistake, accident, or other innocent reason,” the court's subsequent particularized explanations of the charges repeatedly stated a lesser burden.
Next, in summarizing all the charged offenses, the district court again affirmatively suggested a lesser mens rea than the law requires. First, it misstated the required proof for counts 2, 3, and 4, suggesting that proof that Figueroa was in possession of “one of those firearms that happened to be stolen ․ [or] that happened to be an automatic firearm converted or otherwise, and [that] it so happened all these firearms were possessed in a school zone” was sufficient to prove the offenses. Of course, the fact that a firearm “happened to be” anything is not enough to establish criminal liability under the charged offenses. The court created further confusion by asking Figueroa whether he had any doubt about what he was pleading to. The court asked, “No doubt? Do you have a doubt or no doubt? No doubt?” From Figueroa's “No,” we do not know whether he meant he had doubt or he had no doubt.
The district court further compounded this error through its confusing question, “So you, aided and abetted by others, or others aiding and abetting you, whatever way you want to call it, were in possession of these firearms in that car?” We do not know whether Figueroa's response of “Yes” to this disjointed compound question meant that he was “in possession of these firearms in that car” or “others ․ were in possession of these firearms in that car.” We do not know which theory of liability the Government intended to pursue, as, indeed, neither the Government nor the district court offered any explanation of the distinction between principal and aider and abettor liability.
Last but not least, Figueroa's final, formal entry of a plea was itself ambiguous and less than explicit. According to common practice, the colloquy resulting in a guilty plea concludes with the question, “How do you now plead to the charge, guilty or not guilty?” West's Federal Forms, § 84:42 (May 2014). So that an explicit, non-ambiguous record is created, the defendant should be prompted to state either “guilty” or “not guilty.” Here, the court did not follow this sensible practice. Rather, it asked, “Do you still want to plead, sir?” Figueroa then gave no verbal or oral answer at all, but instead only nodded his head up and down. Again, we are left without an unambiguous, explicit admission of guilt.
The foregoing demonstrates that the district court committed plain and obvious error in entering Figueroa's plea as knowing and voluntary. Remaining are the third and fourth prongs of the plain error standard. Gandia–Maysonet, 227 F.3d 1, is instructive on those points as well. In Gandia, we found the district court's error in describing the mens rea for carjacking as “knowingly and unlawfully,” rather than as “with the intent to cause death or serious bodily harm,” sufficiently prejudicial to affect the defendant's substantial rights, thus satisfying the third prong of plain error review. Gandia, 227 F.3d at 4–5. We thought that the court's “repeated misstatement, if accepted by [the defendant], could well have encouraged him to plead guilty. After all, a defendant who honestly did not think that he had intended to kill or maim might well bridle if told that he had to admit to this intent․” Id. at 5. The district court's misstatements about the scienter requirements at Figueroa's colloquy were at least as confusing and misleading as those in Gandia. Additionally, as in Gandia, there is little evidence that the defendant understood the element from some other source. See id. And so we conclude that this confusion “could well have encouraged [the defendant] to plead guilty.” Id.
The district court therefore had before it a defendant claiming a lack of the precise knowledge for which the prosecution was offering no evidence at all. In short, a man was apparently and unwittingly telling the court that he was very likely not guilty of the charge, with no evidence to the contrary. We have no difficulty finding in such a case that, but for the court's error in wrongfully disregarding Figueroa's unwitting claims of innocence, there is a reasonable probability that this guilty plea would not have been entered.
Nor, finally, is there any doubt that the error seriously affects the fairness and integrity of judicial proceedings. We noted in Gandia that the plea's “force ․ in evidencing arguable guilt was substantially undercut by the misstatement of the scienter standard.” Id. at 6. Given that, in combination with the fact that “the other evidence of scienter was thin (although not beyond reasonable inference),” we held that the fourth prong of plain error review was satisfied, “because [the error] seriously affected the guilty plea colloquy's fairness and integrity.” Id. The same result is dictated by the errors in this case.
Although vacation of the judgment on the grounds stated above obviates the need to address the district court's alleged sentencing error, for sake of completeness, we next address Figueroa's argument that the district court committed procedural error by imposing a sentence contrary to the guidance provided at USSG §§ 2K2.5 and 3D1.1. Because this issue is raised for the first time on appeal, review is for plain error. United States v. Goodhue, 486 F.3d 52, 55–56 (1st Cir.2007).
“We review criminal sentences for reasonableness, using an abuse of discretion standard.” United States v. Leahy, 668 F.3d 18, 21 (1st Cir.2012) (citing Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). This review “is bifurcated: we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable.” Id. (quoting United States v. Clogston, 662 F.3d 588, 590 (1st Cir.2011)). For a sentence to be procedurally reasonable, the district court must have properly calculated the guideline sentencing range. See United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008) (explaining that procedural errors include “failing to calculate (or improperly calculating) the Guidelines range” (quoting Gall, 552 U.S. at 51)).
In the instant case, the district court committed procedural error by improperly calculating the Guidelines range. Because the four offenses in question involved the same act or transaction, they were properly grouped under USSG § 3D1.2(a). For counts included in a single group because they involved the same act or transaction, “the offense level applicable to [the] Group is the offense level ․ for the most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group.” USSG § 3D1.3(a). In the instant case, the most serious counts comprising the group were counts 1, 2, and 3. The offense level applicable to the group, then, was the offense level applicable to counts 1, 2, and 3. In this case, that offense level was 24, yielding a guideline sentencing range of 57–71 months' imprisonment at CHC II.
The district court erred in calculating the guidelines range by removing count 4 from the group, calculating a guideline range for it separately, and then adding the count 4 calculation to the group calculation. The court was correct in running the term of imprisonment for count 4 consecutively, but erred by running it in addition to the guideline range calculated for the group.
Multiple counts of conviction are grouped under USSG § 3D1.1(a)(1) by applying the grouping rules of USSG § 3D1.2. Under USSG § 3D1.2(a), convictions are grouped together if they involve the same act or transaction. But USSG § 3D1.1(b)(1)(B) creates an exception to this rule for any count of conviction that “requires that [its] term of imprisonment be imposed to run consecutively to any other term of imprisonment.” Moreover, Application Note 2 to USSG § 3D1.1 provides that a conviction under 18 U.S.C. § 922(q) is not subject to this exception, and that the multiple count rules therefore apply. The result that follows from this guidance is consistent with the guidance set forth at Application Note 3 to USSG § 2K2.5, which provides that when “the defendant is convicted both of [an] underlying offense and 18 U.S.C. § 922(q), the court should apportion the sentence between the count for the underlying offense and the count under 18 U.S.C. § 922(q).”17 By straying from this guidance and not apportioning the sentence for violation of 18 U.S.C. § 922(q) as part of the guidelines range, the court imposed a sentence above the guidelines range sentence, even though it apparently intended to impose a guidelines sentence.18 Accordingly, we conclude the first two prongs of the plain error standard have been met, namely, that (1) there was an error, and (2) the error was plain or obvious.
We also conclude that the third prong of the plain error standard has been met, in that the district court's error affected Figueroa's substantial rights, i.e., it affected the outcome of the court's proceedings. The record clearly shows that the court believed the guidelines called for the stacking of the count 4 period on top of the group period, rather than apportioning the offenses within the group period, thus increasing the guidance by seven months. It also appears that the court's intention was to impose a guidelines sentence, properly calculated. Absent any indication to the contrary, we therefore presume that, but for the error, there is a reasonable likelihood that the sentence would have been shorter. See United States v. Ortiz, 741 F.3d 288, 293–94 (1st Cir.2014).
Finally, we believe the court's sentencing error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” As we stated in United States v. Díaz–Correa, 287 F. App'x 899 (1st Cir.2008) (unpublished per curiam): “Where correction of [ ] a guidelines calculation error would lead to a lower sentence, remand for resentencing is ordinarily warranted under the third and fourth prongs of [the plain error] standard.” Id. at 900–01 (citing United States v. Antonakopoulos, 399 F.3d 68, 81 (1st Cir.2005)).
1. The inventory search also turned up two loaded magazines.
2. The record states that a “firearm's magazine” was found “between the center console and the front passenger's seat,” but it later appears to refer to this magazine as “a Glock pistol, Model 27, serial number DBW749 ․ reported stolen on December 26, 2011[.]” It is not clear whether both a magazine and a firearm were found between the center console and the front seat.
3. The other defendants pleaded guilty separately, each pursuant to largely identical plea agreements. The offense facts stated in these plea agreements and in the subsequently filed presentence investigation reports are identical.
4. Count 3 actually alleged that the defendants, “aiding and abetting each other, did knowingly and unlawfully possess, a machinegun ․ in violation of [18 U.S.C. § 922(o) ].” 18 U.S.C. § 922(o)(1) makes it unlawful to transfer or possess a machine gun.
5. It is not clear from the context to whom “he” refers; “he” could mean either a co-defendant, or Figueroa, if the interpreter was telling the court what Figueroa said, instead of translating Figueroa's statement word-for-word, as sometimes happens. Nothing in the record indicates that the other defendants were present at Figueroa's change of plea hearing, and there would have been no reason for them to be there, as they had change of plea hearings on different days.
7. The maximum statutory term of imprisonment for violation of 18 U.S.C. § 922(g),(j), and (o), as alleged in counts 1 through 3, is 10 years' imprisonment. 18 U.S.C. § 924(a)(2). The maximum statutory term of imprisonment for violation of 18 U.S.C. § 922(q), as alleged in count 4, is 5 years. 18 U.S.C. § 924(a)(4).
8. The court arrived at the total offense level by starting with the statutory base offense level of 6, adding 2 levels because Figueroa's specific § 922(q) violation was unlawful possession of a firearm in a school zone, and applying a 2–level reduction for acceptance of responsibility. See USSG § 2K2.5.
10. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court noted that an attorney may, pursuant to certain procedural requirements, move to withdraw on appeal if the attorney concludes after a “conscientious examination” of the client's case that no non-frivolous grounds for appeal exist. Id. at 744.
13. A school zone is an area within school grounds or “within a distance of 1,000 feet from the grounds of a public, parochial or private school.” 18 U.S.C. § 921(a)(25); see also United States v. Nieves–Castaño, 480 F.3d 597, 603–04 (1st Cir.2007).
14. As we have held, evidence of the location of a school or even of the fact that it is visible from the location of a defendant's unlawful possession of a firearm is insufficient, in itself, to prove knowing possession of a firearm in a school zone. See Guzmán–Montañez, 756 F.3d at 11–12.
15. “In order to sustain a conviction for aiding and abetting the government must prove, in addition to the commission of the offense by the principal, that the defendant consciously shared the principal's knowledge of the underlying criminal act, and intended to help the principal.” United States v. Henderson, 320 F.3d 92, 109 (1st Cir.2003).
16. The closest the proffer comes to suggesting Figueroa was in constructive possession of a firearm is the allegation that a firearm was found “in the floor of the car” after Figueroa exited the vehicle. From this, one reasonably might infer that the firearm was found on the floor near where Figueroa was sitting, from which one reasonably might infer that it was within arm's reach of Figueroa, from which one reasonably might infer Figueroa knew the weapon was within arm's reach, from which one reasonably might infer that Figueroa was in possession of the firearm. Facts, however, may not be established by stacking inference upon inference. See United States v. López–Díaz, 794 F.3d 106, 113–14 (1st Cir.2015) (citing United States v. Burgos, 703 F.3d 1, 10 (1st Cir.2012)). Again, there were no facts indicating Figueroa knew there was a firearm “in the floor,” or that he “knowingly [had] the power and intention at a given time to exercise dominion or control over [a firearm] either directly or through others.” United States v. McLean, 409 F.3d 492, 501 (1st Cir.2005) (quoting United States v. Carlos Cruz, 352 F.3d 499, 510 (1st Cir.2003)); see also United States v. Robinson, 473 F.3d 387, 399 (1st Cir.2007) (finding constructive possession of firearm found hidden in vehicle's engine compartment shown by, inter alia, defendant's statement that, “When they came from everywhere, I could have gone boom, boom”).
17. “For example, if the guideline range is 30–37 months and the court determines ‘total punishment’ of 36 months is appropriate, a sentence of 30 months for the underlying offense, plus 6 months under 18 U.S.C. § 922(q) would satisfy this requirement.” USSG § 2K2.5, Application Note 3.
18. It is not clear from the record whether the district court recognized that, even under its mistaken understanding of the grouping rules, 78 months would have represented a high-end guidelines sentence. At sidebar, the court after some discussion correctly stated that 60 months is the statutory maximum for violation of 18 U.S.C. § 922(q), see 18 U.S.C. § 924(a)(4), but when issuing its sentence, the court stated, “If I were to do high end on both ends, I would have to sentence you to 71 and 60. That's 117 months.” The high end of a guidelines sentence under CHC II for violation of 18 U.S.C. § 922(q) is in fact 7 months. The record suggests a risk that the court was mixing apples (guideline ranges) and oranges (statutory maximums), leading it to impose a variant or upwardly departing sentence while believing itself to be imposing a more lenient guidelines sentence.
19. Because we recommend the judgment be vacated, we need not address Figueroa's ineffective assistance of counsel claim.


Several federal and state laws prohibit employers from retaliating against employees who report practices by employers that threaten public health and safety, or violate the law. Other laws prohibit retaliation against employees who file complaints about their own working conditions, including unsafe working conditions. Although the laws vary from state to state, anti-retaliation laws generally prohibit adverse actions such as termination, layoff, demotion, suspension, denial of benefits, reduction in pay, and discipline, when the adverse action is taken in retaliation for employees’ reports of unsafe or unlawful practices. Many states also have laws that protect workers who raise important public policy concerns.
The Occupational Safety & Health Act is a federal law that protects workers from retaliation for complaining to their employer, OSHA, or other government agencies about unsafe conditions in the workplace. If you have reported unsafe or unhealthy working conditions, and your employer has retaliated against you for it, you can file an OSHA whistleblower complaint online.
The full text of the anti-retaliation provision of OSHA can be found here. The complaint must be filed within 30 days of the employer’s retaliation against you. You can find more information here, and you can file an OSHA whistleblower complaint here.
Several states have their own occupational health and safety laws and state agencies that enforce them. See below for state-specific anti-retaliation provisions that can protect nurses who complain about unsafe conditions in their hospitals.
If you don’t see your state listed, please check back as this information will be updated.
Alabama workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Arizona Revised Statute § 23-1501 prohibits an employer from terminating an employee for disclosing in a reasonable manner that the employer has violated the state constitution or any state statutes. The protected disclosure can be to a supervisor or to a government agency.
Arkansas workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
California Labor Code 6310 prohibits retaliation against employees for complaining about safety or health conditions or practices, and California Labor Code 6311 prohibits retaliation against employees for refusing to perform work if the work would constitute a violation of any occupational safety or health standard and where the violation would create a real and apparent hazard to the employee or his or her co-workers.
California Labor Code Section 1102.5 prohibits retaliation against employees for disclosing information to a government or law enforcement agency where the employee has cause to belief that the information discloses violation of state or federal law.
California Health and Safety Code Section 1278.5 prohibits health facilities from retaliating against employees or patients who file reports or initiate, participate in, or cooperate in government agency investigations and administrative proceedings relating to quality of care, services, or conditions at an accredited health facility.
Colorado workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Delaware workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Florida Statutes § 448.102 prohibits employers from taking any retaliatory action against an employee because the employee has disclosed or threatened to disclose to a government agency an activity or practice of the employer that is in violation of a law, rule, or regulation. The employee must first have brought the unlawful practice or activity to the attention of a supervisor and give the employer a reasonable opportunity to correct the practice.
Florida workers are also covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Georgia workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Idaho workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Illinois Compiled Statutes § 210 ILCS 86/35 provides that a hospital may not penalize, discriminate, or retaliate against an employee who discloses to a supervisor, collective bargaining agent, or regulatory agency any activity, policy, or practice of a hospital that violates the law or that the employee reasonably believes poses a risk to the health, safety, or welfare of a patient or the public.
Private-sector workers in Illinois are also covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Kansas workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Louisiana workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Michigan Compiled Laws §333.20180 protects workers employed by health care facilities who make a report or complaint about a violation of statute or rule, or who assists in the investigation of such a violation. Protected employees may not be discharged, threatened, or otherwise retaliated against by their health care employer.
Michigan law also prohibits discrimination against employees who file occupational safety and health complaints with Michigan OSHA.
Mississippi workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Missouri workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Montana Code § 39-2-904 provides that a discharge is wrongful if it was in retaliation for an employee’s refusal to violate public policy or for reporting a violation of public policy. “Public policy” is defined as a policy in effect concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule.
Montana workers are also covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Nebraska workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Nevada Revised Statutes § 618.445 prohibits an employer from discharging or discriminating against an employee for filing a complaint with the Division of Industrial Relations.
New Hampshire workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
New Mexico workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
New York Labor Code Article 20-C prohibits health care employers from penalizing employees who make complaints about improper quality of patient care.
Private-sector workers in New York are also covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
North Carolina General Statute §95-241 prohibits employers from taking any retaliatory action against employee for filing a claim or provides information related to occupational safety and health.
North Dakota workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Ohio Revised Code § 4113.52 provides that no employer may take any disciplinary or retaliatory action against an employee for reporting a violation of any state or federal statute or local ordinance or regulation, which the employee reasonably believes is likely to cause a hazard to the public health or safety.
In addition, Ohio Revised Code § 4723.33 provides protection against retaliation for nurses who in good faith report violations of the law.
Oklahoma workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Oregon Revised Statutes § 654.062 makes it unlawful for an employer to discriminate in any way against an employee because the employee has opposed any practice forbidden under Oregon’s Safe Employment Act, or made a complaint or report to Oregon OSHA. You can report a workplace hazard by going to https://www4.cbs.state.or.us/exs/osha/hazrep/.
Oregon Revised Statutes § 659A.199 prohibits employers from discriminating or retaliating against an employees because the employee has in good faith reported information that the employee believes is evidence of a violation of state, local, or federal law or regulation.
Pennsylvania workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Rhode Island workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
South Dakota workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Texas Health and Safety Code § 161.134 prohibits retaliation by hospitals against employees who report to their supervisors, law enforcement, or state regulatory agencies any violation of law, including patient abuse and neglect, or unprofessional or unethical conduct.
Texas workers are also covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Virginia Code §40.1-51.2:1 prohibits discrimination against employees for filing a safety or health complaint or acted otherwise to exercise protected safety and health rights for themselves or others.
Revised Code of Washington § 43.70.075 provides that whistleblowers who complaint in good faith to the department of health about improper quality of care by a health care provider or in a health care facility shall remain confidential, and employee whistleblowers are protected from retaliation.
Revised Code of Washington § 49.17.160 prohibits discrimination against workers who file complaints about workplace safety with government agencies.
West Virginia workers are covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Wisconsin Statute 146.997 prohibits health care employers from taking any disciplinary action against employees who report violations of law or situations in which the quality of health care service provided by the facility violates any established clinical or ethical standard. The protected report can be made to any state agency, to any professionally recognized accrediting or standard-setting body, or to any officer, director, or supervisor of the health care facility.
Wisconsin workers are also covered by OSHA, the federal law that prohibits retaliation against employees for reporting workplace health and safety concerns.
Disclaimer: The information provided on this site is provided without representation as to its current accuracy. We have not attempted to include all statutes and regulatory materials that may pertain to in a given individual situations and laws and regulations change frequently and this website may not contain the current version of applicable laws or regulations in the state in which you reside. This information is not intended to substitute for legal advice and it does not contemplate every legal claim you may have. Do not delay seeking legal advice because of information you read here – it is not intended to be comprehensive. You should consult a qualified attorney if you have questions about your rights.


The facts in a recent Tax Court decision involved a Canadian citizen, who was a full-time student at the University of Waterloo in Canada during the years 2008 – 2012. The taxpayer was not married.
The University was recognized as an institution eligible to participate in the Federal Family Educational Loan program by the U.S. Department of Education and the University issued a form verifying that the taxpayer paid $5,123 in education expenses in 2012.
With the encouragement of the University, the taxpayer pursued paid internships in the United States during 2010 and 2011. The facts indicate that he was present in the United States during these internships for 120 days in 2010 and under 120 days in 2011 but was present in the United States for about 190 days in 2012. The taxpayer filed as a nonresident in each of the 2010 and 2011 years and (correctly) filed as a U.S. resident for 2012. On his return, he claimed American Opportunity and Lifetime Learning credits against his tax due under the authority of §25A which makes these credits available to eligible students who pay qualified tuition expenses.
The IRS asserted that the taxpayer was not entitled to claim the education credits since the taxpayer was not a U.S. resident for the entire 2012 taxable year as required by §25A(g)(7). The taxpayer, on the other hand, argued that he was entitled to the credits since he met the substantial presence test under §7701(b)(3) in 2012.
The Tax Court determined that, while the taxpayer was “substantially present” in the United States for the 2012 taxable year, he did not meet the requirements of §25A(g)(7) since he was not a U.S. resident for all of 2012. The amount of the credits involved was quite insignificant, which is obviously the reason the taxpayer appeared pro se. Moreover, the facts are clear cut and the relevant law is clear cut and the decision hardly breaks new ground. Nonetheless, the court reviews a number of residency related rules that are instructive and worthy of review.
First, as mentioned, §25A(g)(7) provides that the credits are not allowed if a taxpayer is a nonresident alien individual for any portion of the taxable year unless the individual elects to be treated as a resident alien under the provisions of either §6013(g) or §6013(h).
These two sections refer to the ability of a nonresident alien to make a joint return with his/her spouse. The general rule is that a joint return may not be made if either spouse was a nonresident alien at any time during the year. However, under §6013(g), a nonresident alien can file jointly if an election is made to treat the nonresident alien as a resident of the United States for the taxable year. Similarly, under §6013(h), a nonresident alien who later becomes a resident of the United States in that year may elect to be treated as a U.S. resident for the taxable year. Depending on the facts of each case, and the relative tax positions of the spouses, these elections might make sense. The taxpayer in this case was not married and he could not avail himself of either election.
So, if the taxpayer was “substantially present” in the United States for the 2012 taxable year and, as such, was deemed a resident of the United States in 2012, why did he fail the requirements of §25A(g)(7)?
A taxpayer becomes a U.S. tax resident if he meets the green card test, the “substantial presence” test, or makes the special first-year election. §7701(b)(1). (The taxpayer did not meet the requirements for making the special first-year election, in particular, the requirement that he not be one who otherwise meets the substantial presence test.) The substantial presence test is met for the current year being tested if the individual is present in the United States in the current year for at least 31 days and the number of days present in the current year plus 1/3 of the number of days present in the preceding year plus 1/6 of the days present in the next preceding year equals 183.
The taxpayer in this case met the substantial presence test in the 2012 taxable year but was he a resident of the United States for the entire taxable year as is required by §25A? For that, we would need to know exactly when he started his residency in the United States in 2012.
Under the special rule for first year of residency, provided the individual is not a resident in the preceding year, the individual is treated as a resident of the United States only for the portion of the year which begins on the “residency starting date.” §7701(b)(2)(A)(i), §7701(b)(2)(A)(ii). The residency starting date for individuals meeting the substantial presence test is the first day during the year on which the individual is present in the United States.
The taxpayer in this case first entered the United States in 2012 on February 22. So, while he eventually met the substantial presence test for 2012, his residency starting date was only February 22 and, therefore, for purposes of §25A(g)(7), he was still a nonresident for a portion of the year.
These rules are especially instructive for pre-immigration planning purposes. The regulations under §871, in particular, Reg. §1.871-13(a), make clear that, in the case of an individual who is a nonresident at the beginning of a year but a resident at the end of a year, the individual is taxable for such year as though his taxable year were comprised of two separate periods, one consisting of the time during which he is a resident and a time during which he is a nonresident.
Thus, the regulations go on to say, the income tax liability is to be computed under two different sets of rules for respective periods of time. And, for purposes of §871, the regulations say that an individual is deemed to be a resident of the United States on the day he first becomes a resident of the United States. Section 7701(b)(4)(A) tells us that this day, for purposes of the substantial presence test only, is the first day in the year that the individual is present in the United States.
So, these rules provide the entree to some sophisticated tax planning for the implementation of pre-immigration arrival tax planning. Determining the residency starting date will be critical to advising whether and when the individual should accelerate income before establishing residency, defer loss recognition, embark upon sales or other basis step-up techniques, dispose of corporations that could be CFCs or PFICs, make check-the-box elections, etc.
So, we thank the taxpayer in this case for the primer on residency rules but we also advise him not to rely on IRS forms in the future for the totality of his advice nor to appear in Tax Court pro se.
This commentary also will appear in the November 2016 issue of the Tax Management International Journal. For more information, in the Tax Management Portfolios, see Bissell, 907 T.M., U.S. Income Taxation of Nonresident Alien Individuals, and in Tax Practice Series, see ¶7110, U.S. International Taxation — General Principles.