A. Parties and Amici: This appeal arises from a criminal case between defendant-appellant Cosley A. xxxxxxx and plaintiff-appellee, the United States of America. There are no intervenors or amici.
B. Rulings Under Review: This is an appeal from the decision of the district court (the Honorable John Garrett Penn) denying defendant's motion to suppress. (App. 30-36).
1. Whether an individual's consent to the search of an item of luggage includes consent to the destruction of property inside that item of luggage, where that person did not have an opportunity to object or withdraw consent to the search and there was no probable cause or reasonable suspicion to detain the person.
On April 24, 1995, following a hearing, the Honorable John H. Pratt denied defendant's motion to suppress evidence. Later that day, Mr. xxxxxxx pled guilty to count one and the government dismissed count two of the indictment. On May 9, 1996, the Honorable John G. Penn sentenced Mr. xxxxxxx to 135 months imprisonment. (App. 13-16).
On May 17, 1996, Mr. xxxxxxx filed a notice of appeal. (App. 17). On October 16, 1996, this Court granted Mr. xxxxxxx's motion to hold his appeal in abeyance pending the filing and disposition of a motion pursuant to 28 U.S.C. § 2255. (App. 18). Mr. xxxxxxx filed that motion on October 28, 1996, asserting that his trial counsel was ineffective in failing to advise him that he had the right to testify at the evidentiary hearing on his motion to suppress evidence. (App. 19-29). On June 12, 1997, with the government's consent, the district court held a second suppression hearing. On August 8, 1998, in a memorandum opinion, the district court denied Mr. xxxxxxx's motion to suppress and denied his § 2255 motion as moot. (App. 30-36).
This case was returned to this Court's active docket on September 28, 1998. (App. 37).
On December 5, 1994, at approximately 8:00 p.m., Detective Coswell Fleming was working as part of the interdiction unit at the Greyhound bus station in Washington, D.C., with the purpose of intercepting drugs carried by passengers. Tr. at 5, 8, 55. Detective Fleming was watching an arriving bus from New York City when he saw Mr. xxxxxxx get off the bus and decided to interview him. Id. at 26-27, 78. Detective Fleming could identify nothing that led him to interview Mr. xxxxxxx; he decided to interview Mr. xxxxxxx at random. Id. at 78, 95-102. He did not base his decision on any criminal profile or on Mr. xxxxxxx's dress, mannerism, or anything suspicious about him. Id. at 100-102.
Detective Fleming knelt down to search Mr. xxxxxxx's luggage. Id. at 39, 61, 121. He found a brown paper bag in the tote bag, inside of which he found a package wrapped in tape. Id. at 61, 107. The only specific description he gave of the package was that it had a "flat surface." Id. at 109. He could not see what was in the package through the tape. Id. at 111. He ripped a hole of about one and a half inches in the taped package and found a chunky white rock substance. Id. at 61-62, 110. He did not ask Mr. xxxxxxx's consent to tear open the package, nor did he ask him what was in the package. Id. at 61-62, 87, 108. Detective Fleming thought he had probable cause to open the package because he had seen taped packages of drugs on earlier occasions, but he did not identify any characteristics of this package that were similar to others. Id. at 108-09, 112. Detective Fleming testified that he had seen "that type package on numerous occasions." Id. at 109.
No evidence was presented that Mr. xxxxxxx or anyone else saw Detective Fleming tear open the taped package, or that any conversation took place about the package before the officer tore it open. Mr. xxxxxxx testified that when Detective Fleming knelt down to search his bag, he glanced over his shoulder and saw other members of the interdiction squad behind him. Id. at 121, 146. When Mr. xxxxxxx looked down again, he saw Detective Fleming open the paper bag and then "all of a sudden" the officer said "we got him." Id. at 124, 146. Detective Ronnie Hairston testified that Detective Fleming's search of the tote bag took two to three minutes. Tr. at 39. Both Detective Hairston and Mr. xxxxxxx were standing near Detective Fleming, who was kneeling to search the tote bag, and Detective Hairston did not see Detective Fleming take anything out of the tote bag. Id. at 38-39.
The officers arrested Mr. xxxxxxx. Id. at 62. The substance was later tested and found to be cocaine base.
The district court found that Mr. xxxxxxx "did consent to the officer looking in his bag . . .[but] did not specifically [ ] consent to the officer [ ] opening the brown bag package containing the drugs wrapped in tape." (App. 34). The court did not reach the issue of whether Detective Fleming had probable cause to search the taped package. (App. 35). Instead the court ruled that Mr. xxxxxxx's "consent given for the search of the tote bag extends to the search of the brown paper bag and the taped package inside." (App. 35). The court did not discuss the legal relevance of the fact that the officer "tore the package open." (App. 34, 36).
Mr. xxxxxxx's consent to a search of his luggage extended to the paper bag inside the tote bag but did not extend to Detective Fleming's search of the taped package. That package was sealed when Detective Fleming tore it open to search it. A person who cannot afford an expensive briefcase with a lock may keep personal belongings in a sealed, taped package. Therefore, the privacy interest in such a package is equivalent to the privacy interest in a locked briefcase, and the Fourth Amendment extends to the protection of both.
A person who consents to a police officer's search of personal property would not reasonably expect his or her consent to extend to the destruction of containers found within, whether the identified property is a house, a car, or a piece of luggage, and whether the container is a locked briefcase or a sealed, taped package. This is true even where the expressed object of the search is clear. A reasonable person would expect an officer conducting a consent-based search to leave his or her property intact and in one piece. At a minimum, a reasonable person would expect an officer to ask about a container before damaging it. Detective Fleming did not ask any questions about the taped package and there was no evidence that Mr. xxxxxxx knew that the officer was about to tear a hole in it. Therefore, Mr. xxxxxxx had no opportunity to object or to withdraw his consent to the search of the taped package.
Furthermore, Detective Fleming did not have probable cause to search the taped package. There was no evidence to support probable cause other than the taped package, and the contents of the package were not in plain view. The officer's testimony that he had seen that type of package used to transport drugs in the past does not support a finding of probable cause, particularly in the absence of evidence regarding the size, shape, weight or appearance of the package, the type and color of tape used, or some other information regarding the officer's ability to see, feel, smell or otherwise detect what the package contained. Moreover, even if the officer had probable cause to arrest Mr. xxxxxxx and seize the package, he would have been required to obtain a search warrant to open the package.
In reviewing a motion to suppress, this Court applies a clearly erroneous standard to findings of fact and a de novo standard to conclusions of law. See, e.g., United States v. Taylor, 997 F.2d 1551, 1553 (D.C. Cir. 1993).
An individual who consents to a search of luggage does not simultaneously consent to the destruction of property inside that luggage.
The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?
This Court should treat the taped package in question here as though it were a locked briefcase. The Fourth Amendment does not distinguish between "'worthy' and 'unworthy' containers." United States v. Ross, 456 U.S. 798, 822 (1982).
Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case.
Id.; (5) see also United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998) (homeless person's expectation of privacy in closed cardboard boxes and plastic bags is equivalent to expectation of privacy in suitcase or purse). The Court in Jimeno rejected the argument that an unsealed paper bag should be treated the same as a locked briefcase, but it maintained the distinction between containers which are sealed or locked and those that can be opened without damaging them. A typical person would not reasonably expect his or her consent to search to authorize an officer to forcibly open sealed or locked containers found in the course of the search. Pursuant to Ross and Jimeno, a sealed bag or taped package should be treated like a locked trunk or briefcase and granted greater protection under the Fourth Amendment than a container that can be opened without destroying it.
We do note, however, that the Supreme Court expressly distinguished the circumstances of Jimeno from the case in which the subcontainer is locked and cannot be searched without being broken open. . . . We appreciate the distinction but note that in the present case the evidence supports a view that the opening of the baby powder container did not depend upon possession of a key, knowledge of a combination, or anything other than removing its lid. Neither did the fact of its opening render it useless, any more than the opening of the folds destroyed the usefulness of the paper bag in Jimeno. Therefore, we await with the Supreme Court the day when the locked briefcase comes before us.
Id. at 1334-1335 (emphasis added); see also United States v. Strickland, 902 F.2d 937, 941-42 (11th Cir. 1990) (consent to search car does not include consent to slash spare tire in trunk); United States v. Ibarra, 965 F.2d 1354, 1358 (5th Cir. 1992) (en banc, in evenly divided ruling) (consent to search house did not include consent to remove boards from ceiling to gain access to attic); United States v. Reeves, 798 F. Supp. 1459, 1468-69 (E.D. Wash. 1992) (oral consent to search car did not extend to locked briefcase in car, though more explicit written consent did), aff'd 6 F.3d 660 (9th Cir. 1993) (affirming on basis of written consent). (6) As in Jimeno and Springs, courts have generally upheld searches of containers or subcontainers found during consent-based searches of luggage or cars, provided the containers could be opened without destroying them. See, e.g., United States v. Kim, 27 F.3d 947, 957 (3d Cir. 1994) (sealed cans of vegetable protein that, like the baby powder container in Springs, could be opened without damage to container), cert. denied, 513 U.S. 1110 (1995); United States v. Smith, 901 F.2d 1116, 1118 (D.C. Cir.) (unsealed paper bag), cert. denied, 498 U.S. 863 (1990). The district court relied on Springs without discussing the circumstances distinguished in Springs and raised by the facts of this case -- where opening the container would "render it useless."
The district court also relied on United States v. Battista, 876 F.2d 201 (D.C. Cir. 1989), in which this Court upheld a search that included piercing plastic bags containing cocaine powder with a nail file, based on the defendant's consent to search the train compartment and suitcase where the plastic bags were found. However, the plastic bags in that case may have been clear, and the cocaine powder visible, possibly explaining why the Court did not discuss the legal relevance of the destruction of subcontainers. Because the Court did not discuss that issue, Battista does not apply here.
In effect, Battista would turn the search of this bag into a game of "Mother-may-I," in which [the officer] would have to ask for new permission to remove each article from the suitcase to see what lay underneath.
Id. at 207. Mr. xxxxxxx does not suggest that Detective Fleming had an obligation to seek his permission to lift each of his personal items from the tote bag to see what was underneath. In addition, unlike Battista, this case involved no reasonable suspicion to detain Mr. xxxxxxx, no cooperation or other action demonstrating continued consent, no opportunity to withdraw consent, and no warning that defendant did not have to consent. Here, Mr xxxxxxx vigorously contested his consent.
This Court should not condone the actions of the officers in tearing open defendant's property. Jimeno and Springs support the conclusion that consent to search does not include consent to tear or break into subcontainers which cannot be opened without damaging them. As explained in Ross, defendant's taped package should not be given less protection just because it was not made of expensive leather and did not bear a sophisticated combination lock.
The record contains no evidence that Mr. xxxxxxx was aware that Detective Fleming was going to tear a hole in his taped package or knew that the officer was in the process of doing so. Based on the record, therefore, Mr. xxxxxxx had no opportunity to object to that action or withdraw his consent. Detective Hairston testified that he did not see the taped package or any items inside the bag. Tr. at 39, 41. Mr. xxxxxxx testified that after looking in the paper bag, "all of a sudden," Detective Fleming said "'we got him.'" Tr. at 39, 124, 126. The government has the burden of proving that, under the totality of the circumstances, a consent-based search was valid. See, e.g., Mendenhall, 446 U.S. at 557; United States v. Hodge, 19 F.3d 51, 53 (D.C. Cir. 1994), cert. denied, 516 U.S. 1181 (1996); American Fed'n of Gov't Employees v. Skinner, 885 F.2d 884, 894 (D.C. Cir. 1989), cert. denied, 495 U.S. 923 (1990). Here, the government failed to show that it would have been possible for Mr. xxxxxxx to object when the officer tore open his package.
Therefore, this case differs from United States v. Maldonado, 38 F.3d 936, 940-41 (7th Cir. 1994), cert. denied, 516 U.S. 876 (1995), and United States v. Garcia Hernandez, 955 F. Supp. 1361, 1373-76 (D. Utah 1996), aff'd, 153 F.3d 729 (10th Cir. 1998). In Maldonado, the court upheld a search in a train station of taped juicer boxes where the defendant clearly consented to the search of his luggage by bending down and unlocking the bag in which the boxes were found. Id. at 940. When they found the taped boxes, the officers asked for further consent to search them. Id. at 938. The officers testified that the defendant consented or nodded in consent. Id. The defendant testified that he asked the officers not to open the boxes because the items inside were gift-wrapped. Id. The court found that the defendant's conduct, by cooperating and nodding, included consent to search the taped boxes. Id. at 940. The court also found that the defendant did not withdraw his consent though he limited the parameters of the search to avoid damage to gift wrapped packages inside the boxes. Since there were no gift wrapped boxes inside, those parameters were not exceeded. Id. at 941-42 & n.3. In this case, in contrast, the officer did not request additional consent to search the taped package or ask what was in it, there was no evidence of additional consent to search the taped package, and there was no evidence Mr. xxxxxxx had an opportunity to withdraw consent.
In Garcia Hernandez, 955 F. Supp. at 1373-76, the officer was searching a car with the defendants' consent when he saw a package wrapped in duct tape and opened it with a knife already in the car. The court held that, under Jimeno, consent to search the vehicle did not encompass cutting into the package. Id. at 1375. However, the court found that consent to cut into the package could be implied from the defendants' failure to object to the continued search when the officer asked three times what was inside the package. Id. at 1375-76.
The search of Mr. xxxxxxx's taped package was invalid because, not only was there no consent to search it, there was no showing that it would have been possible for Mr. xxxxxxx to have objected or withdrawn consent. Therefore, the facts of this case do not support a finding of implied consent from Mr. xxxxxxx's failure to withdraw consent.
Detective Fleming testified that he tore into the taped package not because defendant's consent extended to ripping open the package but because he had probable cause to tear open the package. Tr. at 108-09, 112. However, nothing in the record supports a finding of probable cause. Moreover, the District Court did not reach this question.
Even after extensive questioning by the Court, Detective Fleming could cite no reason for questioning Mr. xxxxxxx. Id. at 92-102. Detective Fleming did not testify that he had any information about the contents of the package based on its size, shape, or weight, the color or type of tape, or his ability to see, feel or smell the contents through the packaging. Id. at 108-110. (9) His explanation that he had seen taped packages containing drugs before, Tr. at 109, is not sufficient to support a finding of probable cause. Furthermore, even if Detective Fleming had probable cause to arrest Mr. xxxxxxx and seize the package based on its appearance, the Fourth Amendment would have required that he obtain a warrant before cutting it open and searching it. See, e.g., Arkansas v. Sanders, 442 U.S. 753, 766 (1979); United States v. Chadwick, 433 U.S. 1, 15 (1977); United States v. $639,558.00 in U.S. Currency, 955 F.2d 712, 716-18 (D.C. Cir. 1992).
Detective Fleming did not testify that this package was consistent with, for example, a "kilo brick," such as the one seized in United States v. Prandy-Binett, 995 F.2d 1069, 1071 (D.C. Cir.), cert. denied, 510 U.S. 1167 (1994). In Prandy-Binett, this Court found probable cause to search a taped package but numerous other factors in that case supported that finding. In that case, that defendant moved more quickly through the train station after making eye contact with detectives, and he gave deceptive information about where he had come from, how long he had been there, and where he lived (conflicting, respectively, with his ticket, the amount of luggage he was carrying, and his driver's license). Id. at 1069-70. The defendant stated that he did not have to consent to a search of his luggage, supporting the finding that the search was voluntary. Id. at 1070. That case involved a rectangular package wrapped in silver duct tape, and the Court considered extensive evidence regarding the bulk and shape of the package and the type and color of tape, in addition to the frequency in which kilogram-sized quantities of cocaine powder are packaged in exactly that size and shape package, in silver duct tape. Id. at 1071-72.
Prandy-Binett involved cocaine powder. In contrast, this case involved cocaine base, usually found in the form of irregularly-shaped rocks. There is no evidence that crack cocaine is typically formed into "kilo bricks" or any other size package, or that the package involved here was any particular size and shape or wrapped in any particular type of tape. Taped packages do not necessarily contain drugs. See United States v. Prandy-Binett, 995 F.2d at 1074 (D.C. Cir.) (Edwards, J., dissenting) ("I have wrapped packages in duct tape, carried them in a tote bag in train stations, and never once thought that I might be subject to arrest"). In his dissent in Prandy-Binett, Judge Edwards decried his fellow jurists' "distinct lack of empathy for some members of our society -- those without much disposable income, for example -- who . . . might very well wrap a gift with whatever packaging material is on hand, including duct tape." Id. at 1077 n.4.
For these reasons, this Court should rule that the officer did not have probable cause or, in the alternative, remand this case to the district court for a ruling on that issue.
For the reasons stated above, defendant respectfully requests that this Court reverse the district court's denial of his motion to suppress evidence and vacate his conviction.
I hereby certify that the foregoing brief for appellant, Cosley A. xxxxxxx, does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).
I hereby certify that on December 18, 1998, two copies of the foregoing brief for appellant Cosley A. xxxxxxx and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.
1. Mr. xxxxxxx's name has been misspelled as "Pinock" in this Court and the district court. He testified at his suppression hearing that the correct spelling is xxxxxxx. Transcript of June 12, 1997, Suppression Hearing (Appendix, Tab A) (hereinafter referred to as "Tr.") at 113.
2. "App." refers to the Appendix of Appellant filed with this brief.
3. There were numerous other conflicts between the officers' testimony and Mr. xxxxxxx's testimony, such as whether the search occurred inside the Greyhound station or outside on First Street, but the district court believed the testimony of the officers with respect to the critical areas of dispute.
4. Mr. xxxxxxx does not contest the officer's opening of the paper bag containing the taped package.
5. Ross originated in this Court, where a majority of the Court, on en banc review, disagreed with the distinction a panel of the Court had drawn between a paper bag and a zippered leather pouch. The Court rejected the argument that "some containers are fair game . . . because they are too small, too insecure, or too cheaply made to burden the time of a magistrate." United States v. Ross, 655 F.2d 1159, 1170 (D.C. Cir. 1981) (en banc). "[I]f quality of material is what counts, on what side of the line would one place the variety of parcels people carry? . . . Would a Tiffany shopping bag rank with one from the local supermarket? . . . [A]n "unworthy container" rule . . . would ensnare those without the means or the sophistication to use worthy containers." Id.
6. In United States v. Sanchez, 32 F.2d 1330 (8th Cir. 1994), cert. denied, 513 U.S. 1158 (1995), the court upheld a search of sealed boxes inside a truck based on consent to search the truck but did not discuss the issue presented here.
7. The officer's warning that the defendant did not have to consent to a search was significant to the Court in Battista. 876 F.2d at 207. Other courts have found a similar warning, though not required, to be highly relevant. See, e.g., United States v. Mendenhall, 446 U.S. 544, 558-59 (1980); United States v. Guapi, 144 F.3d 1393, 1394-95 (11th Cir. 1998); United States v. Dyer, 784 F.2d 812, 815 (7th Cir. 1986).
8. In Battista, the officer requested the defendant's consent to search his roomette and a hanging suitbag, and informed him that he was not required to consent to the search. 876 F.2d at 203 & 207. The defendant consented and further cooperated by taking the suitbag down from a rack and placing it in the hall for the officers to search. Id. at 203. The defendant then stepped into the hall. When the officer found a locked suitcase under a bed, he asked if the defendant knew the combination. The defendant stepped back into the room, turned the numbers of the combination lock, and opened the suitcase himself. Id. at 203 & 207. The police found a plastic bag containing two packages inside the suitcase, pierced them with a nail file, and discovered drugs inside them. Id. at 203.
9. Therefore, the search of Mr. xxxxxxx's package was not valid under a "plain view" exception to the warrant requirement. See, e.g., United States v. Doe, 61 F.3d 107 (1st Cir. 1995); United States v. Gibson, 19 F.3d 1449, 1451 (D.C. Cir. 1994); United States v. Miller, 769 F.2d 554 (9th Cir. 1985); see also Henry v. United States, 361 U.S. 98, 104 (1959).


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An edge-weighted digraph is a digraph where we associate weights or costs with each edge. A shortest path from vertex s to vertex t is a directed path from s to t with the property that no other such path has a lower weight.
We summarize several important properties and assumptions.
Paths are directed. A shortest path must respect the direction of its edges.
The weights are not necessarily distances. Geometric intuition can be helpful, but the edge weights weights might represent time or cost.
Not all vertices need be reachable. If t is not reachable from s, there is no path at all, and therefore there is no shortest path from s to t.
Negative weights introduce complications. For the moment, we assume that edge weights are positive (or zero).
Shortest paths are normally simple. Our algorithms ignore zero-weight edges that form cycles, so that the shortest paths they find have no cycles.
Shortest paths are not necessarily unique. There may be multiple paths of the lowest weight from one vertex to another; we are content to find any one of them.
Parallel edges and self-loops may be present. In the text, we assume that parallel edges are not present and use the notation v->w to refer to the edge from v to w, but our code handles them without difficulty.
The from() and to() methods are useful for accessing the edge's vertices. DirectedEdge.java implements this API.
EdgeWeightedDigraph.java implements the API using the adjacency-lists representation.
largeEWG.txt contains one million vertices and 15,172,126 edges.
Data structures for single-source shortest paths.
Given an edge-weighted digraph and a designated vertex s, a shortest-paths tree (SPT) is a subgraph containing s and all the vertices reachable from s that forms a directed tree rooted at s such that every tree path is a shortest path in the digraph.
Edges on the shortest-paths tree: edgeTo[v] is the the last edge on a shortest path from s to v.
Distance to the source: distTo[v] is the length of the shortest path from s to v.
Our shortest-paths implementations are based on an operation known as relaxation. We initialize distTo[s] to 0 and distTo[v] to infinity for all other vertices v.
Edge relaxation. To relax an edge v->w means to test whether the best known way from s to w is to go from s to v, then take the edge from v to w, and, if so, update our data structures.
Vertex relaxation. All of our implementations actually relax all the edges pointing from a given vertex.
Dijkstra's algorithm initializing dist[s] to 0 and all other distTo entries to positive infinity. Then, it repeatedly relaxes and adds to the tree a non-tree vertex with the lowest distTo value, continuing until all vertices are on the tree or no non-tree vertex has a finite distTo value.
DijkstraSP.java is an efficient implementation of Dijkstra's algorithm. It uses IndexMinPQ.java for the priority queue.
Dijkstra's algorithm solves the single-source shortest-paths problem in edge-weighted digraphs with nonnegative weights using extra space proportional to V and time proportional to E log V (in the worst case).
We use the term edge-weighted DAG to refer to an acyclic edge-weighted digraph.
Single-source shortest paths problem in edge-weighted DAGs. We now consider an algorithm for finding shortest paths that is simpler and faster than Dijkstra's algorithm for edge-weighted DAGs.
It solves the single-source problem in linear time.
It handles negative edge weights.
It solves related problems, such as finding longest paths.
The algorithm combines vertex relaxation with topological sorting. We initialize distTo[s] to 0 and all other distTo values to infinity, then relax the vertices, one by one, taking the vertices in topological order. AcyclicSP.java is an implementation of this approach. It relies on this version of Topological.java, extended to support edge-weighted digraphs.
Single-source longest paths problem in edge-weighted DAGs. We can solve the single-source longest paths problems in edge-weighted DAGs by initializing the distTo values to negative infinity and switching the sense of the inequality in relax(). AcyclicLP.java implements this approach.
Critical path method. We consider the parallel precedence-constrained job scheduling problem: Given a set of jobs of specified duration to be completed, with precedence constraints that specify that certain jobs have to be completed before certain other jobs are begun, how can we schedule the jobs on identical processors (as many as needed) such that they are all completed in the minimum amount of time while still respecting the constraints?
This problem can be solved by formulating it as a longest paths problem in an edge-weighted DAG: Create an edge-weighted DAG with a source s, a sink t, and two vertices for each job (a start vertex and an end vertex). For each job, add an edge from its start vertex to its end vertex with weight equal to its duration. For each precedence constraint v->w, add a zero-weight edge from the end vertex corresponding to v to the beginning vertex corresponding to w. Also add zero-weight edges from the source to each job's start vertex and from each job's end vertex to the sink.
Now, schedule each job at the time given by the length of its longest path from the source.
CPM.java is an implementation of the critical path method.
By relaxing vertices in topological order, we can solve the single-source shortest-paths and longest-paths problems for edge-weighted DAGs in time proportional to E + V.
Shortest paths in general edge-weighted digraphs.
We can solve shortest path problems if (i) all weights are nonnegative or (ii) there are no cycles.
Negative cycles. A negative cycle is a directed cycle whose total weight (sum of the weights of its edges) is negative. The concept of a shortest path is meaningless if there is a negative cycle.
Accordingly, we consider edge-weighted digraphs with no negative cycles.
Bellman-Ford algorithm. Initialize distTo[s] to 0 and all other distTo values to infinity. Then, considering the digraph's edges in any order, and relax all edges. Make V such passes.
We do not consider this version in detail because it always relaxes V E edges.
There is a negative cycle reachable from the source if and only if the queue is nonempty after the Vth pass through all the edges. Moreover, the subgraph of edges in our edgeTo array must contain a negative cycle. Accordingly, to implement negativeCycle() BellmanFordSP.java builds an edge-weighted digraph from the edges in edgeTo and looks for a cycle in that digraph. To find the cycle, it uses EdgeWeightedDirectedCycle.java, a version of DirectedCycle.java from Section 4.3, adapted to work for edge-weighted digraphs. We amortize the cost of this check by performing this check only after every Vth call to relax().
Arbitrage detection. Consider a market for financial transactions that is based on trading commodities. The table in rates.txt shows conversion rates among currencies. The first line in the file is the number V of currencies; then the file has one line per currency, giving its name followed by the conversion rates to the other currencies. An arbitrage opportunity is a directed cycle such that the product of the exchange rates is greater than one. For example, our table says that 1,000 U.S. dollars will buy 1,000.00 × .741 = 741 euros, then we can buy 741 × 1.366 = 1,012.206 Canadian dollars with our euros, and finally, 1,012.206 × .995 = 1,007.14497 U.S. dollars with our Canadian dollars, a 7.14497-dollar profit!
To formulate the arbitrage problem as a negative-cycle detection problem, replace each weight by its logarithm, negated. With this change, computing path weights by multiplying edge weights in the original problem corresponds to adding them in the transformed problem. Arbitrage.java identifies arbitrage opportunities in a currency-exchange network by solving the corresponding negative cycle detection problem.
There exists a shortest path from s to v in an edge-weighted digraph if and only if there exists at least one directed path from s to v and no vertex on any directed path from s to v is on a negative cycle.
The Bellman-Ford algorithm solves the single-source shortest-paths problem from a given source s (or finds a negative cycle reachable from s) for any edge-weighted digraph with V vertices and E edges, in time proportional to E V and extra space proportional to V, in the worst case.
Q. Does Dijkstra's algorithm work with negative weights?
A. Yes and no. There are two shortest paths algorithms known as Dijkstra's algorithm, depending on whether a vertex can be enqueued on the priority queue more than once. When the weights are nonnegative, the two versions coincide (as no vertex will be enqueued more than once). The version implemented in DijkstraSP.java (which allows a vertex to be enqueued more than once) is correct in the presence of negative edge weights (but no negative cycles) but its running time is exponential in the worst case. (We note that DijkstraSP.java throws an exception if the edge-weighted digraph has an edge with a negative weight, so that a programmer is not surprised by this exponential behavior.) If we modify DijkstraSP.java so that a vertex cannot be enqueued more than once (e.g., using a marked array to mark those vertices that have been relaxed), then the algorithm is guaranteed to run in E log V time but it may yield incorrect results when there are edges with negative weights.
True or false. Adding a constant to every edge weight does not change the solution to the single-source shortest-paths problem.
Provide an implementation of toString() for EdgeWeightedDigraph.java.
Use the memory-cost model of Section 1.4 to determine the amount of memory used by EdgeWeightedDigraph.java to represent a graph with V vertices and E edges.
Solution. 56 + 40V + 72E. MemoryOfEdgeWeightedDigraph.java computes it empirically assuming that no Integer values are cached—Java typically caches the integers -128 to 127.
Adapt the DirectedCycle and Topological classes from Section 4.2 to use the EdgeweightedDigraph and DirectedEdge APIs of this section, thus implementing EdgeWeightedDirectedCycle.java and Topological.java.
Suppose that we convert an EdgeWeightedGraph into an EdgeWeightedDigraph by creating two DirectedEdge objects in the EdgeWeightedDigraph (one in each direction) for each Edge in the EdgeWeightedGraph and then use the Bellman-Ford algorithm. Explain why this approach fails spectacularly.
Solution: This can introduce negative cost cycles even if the edge-weighted graph does not contain them.
What happens if you allow a vertex to be enqueued more than once in the same pass in the Bellman-Ford algorithm?
Answer: The running time of the algorithm can go exponential. For example, consider what happens for the complete edge-weighted digraph whose edge weights are all -1.
Longest paths in DAGs. Develop an implementation AcyclicLP.java that can solve the longest-paths problem in edge-weighted DAGs.
All-pairs shortest paths on a line. Given a weighted line-graph (undirected connected graph, all vertices of degree 2, except two endpoints which have degree 1), devise an algorithm that preprocesses the graph in linear time and can return the distance of the shortest path between any two vertices in constant time.
Partial solution. Find a vertex s of degree 1 and run breadth-first (or depth-first) search to find the order in which the remaining vertices appear. Then, compute the length of the shortest path from s to v for each vertex v, say dist[v]. The shortest path between v and w is |dist[v] - dist[w]|.
Monotonic shortest path. Given an edge-weighted digraph, find a monotonic shortest path from s to every other vertex. A path is monotonic if the weight of every edge on the path is either strictly increasing or strictly decreasing.
Partial solution: relax edges in ascending order and find a best path; then relax edges in descending order and find a best path.
Lazy implementation of Dijkstra's algorithm. Develop an implementation LazyDijkstraSP.java of the lazy version of Dijkstra's algorithm that is described in the text.
Bellman-Ford queue never empties. Show that if there is a negative cycle reachable from the source in the queue-based implementation of the Bellman-Ford algorithm, then the queue never empties.
Solution: Consider a negative cycle and suppose that distTo[w] <= distTo[v] + length(v, w) for all edges on cycle W. Summing up this inequality for all edges on the cycle implies that the length of the cycle is nonnegative.
Bellman-Ford negative cycle detection. Show that if any edge is relaxed during the Vth pass of the generic Bellman-Ford algorithm, then the edgeTo array has a directed cycle and any such cycle is a negative cycle.
Optimal substructure property. Prove that every subpath on a shortest path from v to w is also a shortest path between the two endpoints.
Unique shortest path tree. Suppose that there is a unique shortest path from s to every other vertex. Prove that the SPT is unique.
No negative cycles. Prove that if the generic algorithm terminates, then there are no negative cycles reachable from s. Hint: upon termination, all edges reachable from s satisfy distTo[w] <= distTo[v] + e.weight(). Add up this inequality for all edges along a cycle.
Predecessor graph. True or false. During execution of Bellman-Ford in an edge-weighted digraph with no negative cycles, following the edgeTo array always yields a path back to s. Repeat the question for Dijkstra's algorithm.
Yen's improvement to Bellman-Ford. [reference] Partition the edges into two DAGs A and B: A consists of edges that go from a lower indexed vertex to a higher indexed vertex; B consists of edges that go from a higher indexed vertex to a lower indexed vertex. When iterating through all of the edges in a phase of Bellman-Ford, first iterate through the edges in A in ascending order of vertex number (a topological order of A), then iterate through the edges in B in descending order of vertex number (a topological order of B). When iterating through the edges in A, any path in the SPT that starts at a vertex with the correct distTo value and uses only edges in A results in the correct distTo value; similarly for B. The number of passes needed is the maximum number of A-B alternations on a path, which is at most (V+1)/2. Thus, the number of passes is at most (V+1)/2 instead of V.
Replacement paths. Given an edge-weighted digraph with nonnegative weights and source s and sink t, design an algorithm to find the shortest path from s to t that does not use edge e for every edge e. The order of growth of your algorithm should be E V log V.
From the DIMACS challenge. Here are all the roads in each state.
rome99.txt is a large portion of the directed road network of Rome from the DIMACS challenge. The graph contains 3353 vertices and 8870 edges. Vertices correspond to intersections between roads and edges correspond to roads or road segments. The edge weights are distances in meters.
NYC.txt is the undirected road network of New York City. The graph contains 264346 vertices and 733846 edges. It is connected, contains parallel edges, but no self-loops. The edge weights are travel times and are strictly positive.
Internet routing. OSPF (Open Shortest Path First) is a widely used protocol for Internet routing that uses Dijkstra's algorithm. RIP (Routing Information Protocol) is another routing protocol based on the Bellman-Ford algorithm.
Shortest path with the ability to skip one edge. Given an edge-weighted digraph with nonnegative weights, Design an E log V algorithm for finding the shortest path from s to t where you have the option to change the weight of any one edge to 0.
Solution. Compute the shortest path from s to every other vertex; compute the shortest path from every vertex to t. For each edge e = (v, w), compute the sum of the length of the shortest path from s to v and the length of the shortest path from w to t. The smallest such sum provides the shortest such path.
Shortest paths in undirected graphs. Write a program DijkstraUndirectedSP.java that solves the single-source shortest paths problems in undirected graphs with nonnegative weights using Dijkstra's algorithm.
Floyd-Warshall algorithm. FloydWarshall.java implements the Floyd-Warshall algorithm for the all-pairs shortest path problem. It takes time proportional to V^3 and space proportional to V^2. It uses AdjMatrixEdgeWeightedDigraph.java.
Randomized Bellman-Ford. [reference] Suppose that we choose the vertex order in Yen's algorithm uniformly at randomly (where A contains all the edges that go from a lower vertex in the permutation to a higher vertex). Prove that the expected number of passes is at most (V+1)/3.
Suurballe's algorithm. Given a digraph with non-negative edge weights and two distinguished vertices s and t, find two edge-disjoint paths from s to t such that the sum of the weights of the two paths is minimized.
Solution. This can be done with a clever application of Dijkstra's algorithm, known as Suurballe's algorithm.
Last modified on November 16, 2018.

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


Which North Carolina laws and regulations cover bullying?
North Carolina General Statute § 14-35. Hazing; definition and punishment.
North Carolina General Statute §14-458.1. Cyber-bullying penalty.
North Carolina General Statute §14-458.2. Cyber-bullying of school employee by student; penalty.
North Carolina General Statute §115C-238.66. Board of directors; powers and duties.
North Carolina General Statute §115C-366.4. Assignment of students convicted of cyber-bullying.
North Carolina General Statute §115C-407.15. Bullying and harassing behavior.
North Carolina General Statute §115C-407.16. Policy against bullying and harassing behavior.
North Carolina General Statute §115C-407.17. Prevention of school violence.
North Carolina General Statute §115C-407.18. Construction of this article.
How are bullying and cyberbullying defined in North Carolina anti-bullying laws and regulations?
(2) Creates or is certain to create a hostile environment by substantially interfering with or impairing a student’s educational performance, opportunities, or benefits. For purposes of this section, “hostile environment” means that the victim subjectively views the conduct as bullying or harassing behavior and the conduct is objectively severe or pervasive enough that a reasonable person would agree that it is bullying or harassing behavior.
Do North Carolina anti-bullying laws and regulations cover cyberbullying that occurs off-campus?
Yes. North Carolina anti-bullying laws cover off-campus conduct by imposing criminal sanctions for cyberbullying.
Do North Carolina anti-bullying laws and regulations include protections for specific groups?
Yes. North Carolina anti-bullying laws prohibit bullying or harassing behavior that includes, but is not limited to, acts reasonably perceived as being motivated by any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, socioeconomic status, academic status, gender identity, physical appearance, sexual orientation, or mental, physical, developmental, or sensory disability, or by association with a person who has or is perceived to have one or more of these characteristics.
Do North Carolina anti-bullying laws and regulations encourage or require districts to implement bullying prevention programs or strategies?
Yes. North Carolina school districts must develop and implement methods and strategies for promoting school environments that are free of bullying or harassing behavior.
Do North Carolina anti-bullying laws and regulations encourage or require districts to train teachers and other school staff on how to respond to bullying incidents?
Yes. North Carolina school districts must incorporate information regarding the local policy against bullying or harassing behavior into each school’s employee training program and must provide training on the local policy to school employees and volunteers who have significant contact with students.
Do North Carolina anti-bullying laws and regulations encourage or require districts to provide safeguards or mental health supports for students involved with bullying?
No. North Carolina anti-bullying laws do not require districts to provide safeguards or mental health supports for students involved with bullying.
Do North Carolina anti-bullying laws and regulations involve parents in efforts to address bullying behavior?
No. North Carolina anti-bullying laws do not create expectations for parent involvement in addressing bullying.
Visit the Public Schools of North Carolina “Bullying Prevention” webpage.


United States of America, Plaintiff–Appellee, v. Syed Jawed Akhtar–Zaidi; Erum Zaidi; Pain Management of Northern Ohio, Inc., Claimants–Appellants.
United States of America, Plaintiff–Appellee, v. $506,069.09 Seized From First Merit Bank, et al., Defendants, Syed Jawed Akhtar–Zaidi; Erum Zaidi; Pain Management of Northern Ohio, Inc., Claimants–Appellants.
Claimants Dr. Syed J. Ahktar–Zaidi (“Dr. Zaidi”), his wife, Erum Zaidi (“Erum”), and Pain Management of Northern Ohio, Inc. (“PMNO”) (together, “Claimants”) appeal the district court's order of forfeiture in rem of thirteen financial accounts and 139 pieces of jewelry. For the reasons set forth below, we AFFIRM the district court's judgment.
Dr. Zaidi owned and operated PMNO, a pain management clinic in Solon, Ohio. In 2012 and 2013, undercover law enforcement officers presented as patients to Dr. Zaidi, who “performed at best a cursory examination” before prescribing to them Schedule II and III pain medication. As a result, the government alleged that Dr. Zaidi prescribed controlled substances outside the scope of his professional practice and without a legitimate purpose, in violation of 21 U.S.C. § 841. The Drug Enforcement Administration (the “DEA”) eventually suspended his certificate of registration to distribute controlled substances.
The government further alleged that Dr. Zaidi laundered the tainted proceeds of his drug-trafficking activities by comingling them in various accounts in his own name and those of Erum and PMNO and that he then funneled the funds into investment portfolios and financial retirement accounts. This activity, the government says, enabled Dr. Zaidi to “successfully ‘launder[ ]’ the criminal proceeds and allowed for clean integration back into the financial system,” in violation of 18 U.S.C. §§ 1956 and 1957.
In January 2014, the government filed an in rem forfeiture complaint against a number of bank and investment accounts in the names of Dr. Zaidi, Erum, PMNO, and various combinations thereof. The accounts' aggregate value totals approximately $4.8 million. The government also sought forfeiture of 139 pieces of jewelry allegedly purchased with the proceeds of Dr. Zaidi's trafficking and valued at over $90,000.
In February 2014, Claimants asserted their interests in the defendant assets. The court scheduled a case management conference (“CMC”) for March 12, 2014, and required the parties to personally attend. On March 5, 2014, the Zaidis petitioned to be excused from appearing in person at the CMC due to “undue hardship,” claiming that because their assets were frozen, they had been forced to move to Pakistan to live with family. The court granted the motion. The government immediately petitioned the court to reconsider its ruling, arguing that the Zaidis had left the United States upon learning of the criminal investigation. Given the pending investigation, counsel agreed to stay the case until July 2014. The stay was later extended to October 2014.
In October 2014, Erum moved to dismiss the forfeiture complaint as it related to her personal jewelry and the seized accounts listed in her name. The court denied the motion, concluding that the complaint's factual allegations supported a reasonable belief that the government would be able to satisfy its burden of proof at trial. The court also denied Erum's motion to transfer a portion of the seized assets to pay the Zaidis' taxes and accountants, finding that she had not met the hardship requirements of 18 U.S.C. § 983(f)(1).
The court scheduled a CMC for January 2015, and again required the parties' attendance. The government noticed Erum's deposition for the same date as the CMC. But the day before the scheduled CMC and deposition, the Zaidis again moved to excuse their personal appearance. They claimed that Dr. Zaidi's coronary-artery disease barred him from traveling, that Erum was the “sole caregiver and provider” for her young daughters, and that traveling to Cleveland “would place a tremendous hardship on her and her children.” The Zaidis further noted that the United States State Department had warned American citizens against traveling to and from Pakistan.
During the next teleconference, the court directed Erum “to decide whether to litigate her forfeiture claim or abandon it.” The court advised that because Erum was not a target of the criminal investigation, any attempt to “exercise [ ] her Fifth Amendment right not to incriminate herself at her deposition” would result in her being “deemed to have given up her claim on the seized assets.” The court rescheduled the CMC for February 2015, and warned that if Erum failed to attend the proceeding, her claim would be dismissed for want of prosecution.
Four days before the scheduled CMC and deposition, Claimants moved for partial summary judgment as to the jewelry and all but one of the seized accounts. The same day, Erum renewed her motion to be excused from her personal appearance at the CMC given the pending summary judgment motion and her decision to “exercise her Fifth Amendment right and decline to testify under oath at a deposition.” The district court denied the motion and deemed Claimants' motion for partial summary judgment prematurely filed.
Mrs. Zaidi has not been named in the indictment issued against her husband․ And the Government represents that she is not a target of a criminal investigation. The fact that Mrs. Zaidi may be called as a witness in her husband's criminal prosecution, should he ever return to this country, is an insufficient basis upon which to make a blanket assertion of that privilege preceding her deposition in this civil forfeiture case. And it is altogether unacceptable for Mrs. Zaidi to determine whether her personal appearance at the CMC is necessary despite a federal court order requiring her to be here.
Mrs. Zaidi has been stringing the Court along for months, allowing her time to make preparations to fly to the United States for two days to attend her deposition and the CMC. For these reasons, along with all the reasons previously addressed, Claimants' Motion for Reconsideration of the Court's Order of February 24, 2015 ․ is DENIED.
If Mrs. Zaidi fails to appear tomorrow as ordered, the Court will dismiss her claim against the assets that are the subject of this civil case for want of prosecution.
Erum did not appear at the February 27, 2015, CMC. Consequently, the court dismissed her claim for want of prosecution.
Though the court acknowledged Dr. Zaidi's claimed heart condition, it noted that his medications consisted of “a beta blocker, nitroglycerin, and an aspirin” and that “millions of people ․ travel all the time with those same medications.” During the teleconference, Dr. Zaidi explained that the seizure of his assets left him unable to afford an angiogram to determine whether he required bypass surgery. The court advised that Dr. Zaidi's counsel should file a motion to this effect and that the court would “free up some of the seized money” to pay for the procedures. The court stayed the case until June 8, 2015.
The bottom line is that the Court will not permit these Claimants to litigate their claims to the seized assets in abstentia and without discovery․ By failing to return to the United States within the reasonable time period set by the Court, or otherwise advising the Court of when he will return, Dr. Zaidi simply thwarts the judicial proceedings.
The court granted the government's motion for forfeiture of all of the seized properties.
I. The court did not abuse its discretion in dismissing the claims for want of prosecution.
The court dismissed the Zaidis' claims under the broad authority vested by Federal Rule of Civil Procedure 41(b), which empowers district courts to dismiss an action for failure “to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P. 41(b). We review a district court's dismissal for failure to prosecute for abuse of discretion. Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 736 (6th Cir. 2008).
Carpenter v. City of Flint, 723 F.3d 700, 70304 (6th Cir. 2013) (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001)). These factors suggest that the district court did not abuse its discretion in dismissing Claimants' actions.
1. Claimants' failure to prosecute is attributable to willfulness, bad faith, or fault.
“Although typically none of the factors is outcome dispositive,” a party's bad faith may be the most compelling factor. Knoll, 176 F.3d at 363 (citing Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980)). “While ‘willfulness, bad faith, or fault’ have often been described in these terms of ‘a clear record of delay or contumacious conduct,’ that construction has more recently been supplemented by a requirement of ‘either an intent to thwart judicial proceedings or a reckless disregard for the effect of [the plaintiff's] conduct on those proceedings.’ ” Prime Finish, LLC v. ITW Deltar IPAC, 608 F. App'x 310, 314 (6th Cir. 2015) (quoting Schafer, 529 F.3d at 737).
From the litigation's commencement, the court warned that it would not allow the Zaidis to litigate their case without returning to the United States. Dr. Zaidi, who suffered a heart attack and had a stent implanted in 2007, repeatedly argues that his heart condition rendered him unable to travel. But the court noted that many people take the same medications as Dr. Zaidi and remain able to travel. Moreover, Dr. Zaidi failed to heed the court's suggestion that he should file a motion to release some of the seized money to pay for necessary treatments. The court noted that in his response brief, Dr. Zaidi “[did] not mention, let alone address, any of this.” Given these facts, it is clear that their pretrial filings were dilatory tactics.
Had the court dismissed Dr. Zaidi's action based on the fugitive disentitlement statute, 28 U.S.C. § 2466, Dr. Zaidi might be correct. Applying that statute, Salti noted the government's failure to satisfy its burden and reversed the district court's dismissal of the third-party claim at issue: “If [the claimant] is indeed too sick to travel, such that his illness is what prevents him from returning to the United States, the Government has not shown as a matter of law that [the claimant's] being in [a foreign country], and not the United States, is ‘in order to avoid criminal prosecution.’ ” 579 F.3d at 66566 (quoting 28 U.S.C. § 2466(a)(1)). But though various filings refer to Dr. Zaidi as a fugitive, he admits that the government “never formally moved for disentitlement.” To the contrary, the court stated that “[t]he fugitive disentitlement doctrine ․ is irrelevant to this civil case.” Dr. Zaidi's claims were not dismissed under a fugitive-disentitlement theory, but for want of prosecution. Accordingly, Salti does not render the court's determination an abuse of discretion.
[A] witness must supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution and, if necessary to complement non-testimonial evidence, personal statements under oath to meet the standard for establishing reasonable cause to fear prosecution under this charge.
Id. at 16970. Moreover, “[w]hile the privilege is to be accorded liberal application, the court may order a witness to answer if it clearly appears that he is mistaken as to the justification for the privilege in advancing his claim as a subterfuge.” Id. at 167 (citations omitted).
Erum's blanket assertion of the privilege appears to be the sort of “subterfuge” contemplated by Morganroth. As the government notes, Erum's interpretation of the Fifth Amendment, like Morganroth's, would disallow any civil deposition “for fear that some unintentional exposure to potential criminal liability would occur if any question were answered.” Her refusal to comply with the court's orders constituted defiance of its orders and authority.
2. The government was prejudiced by Claimants' conduct.
Applying the second factor, we have explained that prejudice results where “the [government] ‘wastes time, money and effort in pursuit of cooperation which [the claimant] was legally obligated to provide.’ ” Kovacic v. Tyco Valves & Controls, LP, 433 F. App'x 376, 381 (6th Cir. 2011) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)).
From the case's beginning, the government voiced its concern that it could be obligated to perform “complex and time-consuming discovery, litigation[,] and trial preparation without any assurances that the claimants would ever return to the United States to pursue their claim.” The government expended time, effort, and resources responding to numerous pleadings that Claimants filed in a clear effort to delay the proceedings. This factor weighs in favor of affirming the district court's dismissal of the Zaidis' claims.
3. The court warned Claimants that failure to cooperate could lead to dismissal.
“As to the third factor, ‘[p]rior notice, or the lack thereof, is ․ a key consideration when determining whether a district court abuses its discretion in dismissing a case pursuant to Rule 41(b).” Prime Finish, 608 F. App'x at 315 (quoting Stough v. Mayville Comm. Schs., 138 F.3d 612, 615 (6th Cir. 1998)). As stated above, the court repeatedly cautioned that it would not allow Claimants to litigate their claims from abroad. Though Claimants were on notice that the court was contemplating dismissal of their actions, they repeatedly flouted its orders. This factor, too, weighs in favor of affirming the district court's dismissal.
4. The court considered less drastic sanctions before dismissing Claimants' actions.
We have stated that “the sanction of dismissal is appropriate only if ․ no alternative sanction would protect the integrity of the pretrial process.” Prime Finish, 608 F. App'x at 315 (quoting Wu v. T.W. Wang, Inc., 420 F.3d 641, 644 (6th Cir. 2005)). “Such caution is necessary because where the district court has not manifested consideration of less drastic sanctions, it is more difficult ․ to conclude that the district court exercised its discretion with appropriate forethought.” Id. (quoting Schafer, 529 F.3d at 738 (internal quotation marks omitted)).
For the foregoing reasons, the court's Rule 41(b) dismissal was prompted by the Zaidis' “intent to thwart judicial proceedings or ․ reckless disregard for the effect of [their] conduct on those proceedings.' ” Prime Finish, 608 F. App'x at 314 (quoting Schafer, 529 F.3d at 737). Accordingly, the court did not abuse its discretion in dismissing Claimants' action for lack of prosecution.
II. The court did not err in denying Claimants' motion for partial summary judgment.
Prior to discovery, Claimants moved for partial summary judgment as to all but one of the seized financial accounts, as well as the jewelry. They argued that the civil forfeiture complaint was insufficient; that the government was bound by the evidence presented at the administrative hearing that resulted in the suspension of Dr. Zaidi's registration to prescribe controlled substances; and that the government lacked authority to seize Erum's personal jewelry. The court denied the motion.
We review the district court's denial of summary judgment de novo, applying the same Rule 56(c) standard as the district court and taking the facts in the light most favorable to the nonmovant. Moldowan v. City of Warren, 578 F.3d 351, 373 (6th Cir. 2009) (citations omitted). We also review de novo the district court's interpretation of federal forfeiture laws. United States v. Coffman, 612 F. App'x 278, 284 (6th Cir. 2015) (citing United States v. O'Dell, 247 F.3d 655, 679 (6th Cir. 2001)).
According to Claimants, the government's evidence was limited to the factual record developed at Dr. Zaidi's hearing before a DEA administrative law judge. But Claimants are incorrect. The administrative hearing concerned Dr. Zaidi's appeal of the DEA's suspension of his registration to prescribe controlled substances; it did not address the forfeitability of the properties at issue here. Claimants provide no authority suggesting that the government is limited to evidence presented at an administrative hearing to prove a forfeiture complaint's allegations. To the contrary, the government may pursue evidence beyond that contained in the complaint: 18 U.S.C. § 983(c)(2) permits the government to “use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture.” Id. (emphasis added).
Claimants next assert that the government lacked evidence to prove forfeitability beyond the allegations in its complaint. However, the government identified ample additional evidence of Dr. Zaidi's alleged conduct. In its memorandum, the government pointed to an expert's review of patient files, data analysis of Dr. Zaidi's prescribing history, Dr. Zaidi's own statements, and PMNO staff's observations that the majority of patients were “drug seekers.” Moreover, the forfeiture statute permits the government to acquire additional evidence until the date of trial to prove the forfeitability of assets. See 18 U.S.C. § 983(c)(2). The government's evidence was sufficient to support the seizure of Claimants' assets.
Claimants next contend that because the government submitted no evidence in opposition to their motion for partial summary judgment, the court improperly denied the motion. They suggest that because the government did not rebut the representations in their motion and its 700 pages of attached exhibits, the court should have accepted their evidence as undisputed and thereby proven. But though claimants assert that “the government elected to stand on the mere allegations of its complaint” in response to their motion, they are again misguided. The government objected to being required to respond to Claimants' summary judgment motion because “such a response would require the [government] to unilaterally provide extensive discovery” to Claimants, despite their lack of intent to return to the United States. As such, the court did not require the government to respond to the motion with disclosure of its evidence. Characterizing the motion as “premature” and based on an invalid theory of law, the court excused the government from filing a formal response supported by affidavits and evidentiary exhibits.
The court's reasoning was sound. Federal Rule of Civil Procedure 56(d) authorizes a court to “(1) defer considering [a summary judgment] motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order” upon a nonmovant's showing that “it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). To be sure, the government lacked an adequate opportunity to engage in discovery when Claimants filed their motion: by repeatedly disobeying the court's orders, Claimants effectively foreclosed discovery.
Claimants also note that the government did not avail itself of the procedure contemplated by Federal Rule of Civil Procedure 56(d)—that is, to “show [ ] by affidavit or declaration that ․ it cannot present facts essential to justify its opposition [to summary judgment].” This technicality is not determinative here. Before the deadline for filing a response to Claimants' motion, the court ruled sua sponte that the motion had been filed prematurely. Moreover, the court later opined that “Claimants' efforts to litigate this case without allowing the Government to conduct discovery is unfairly prejudicial to the Government.” Confronted with Claimants' bad faith throughout this proceeding, the court's denial of their motion was not erroneous.
Finally, Claimants offer a substantive challenge to the forfeiture at issue. 18 U.S.C. § 981(a)(1)(C) subjects to forfeiture “[a]ny property ․ which constitutes or is derived from proceeds traceable to ․ any offense constituting ‘specified unlawful activity.’ ” According to Claimants, the three undercover law enforcement officers made sixteen visits to PMNO and paid the clinic a total of $2,135 in cash. The cash was deposited into PMNO's business account at First Merit Bank. Claimants argue that only the business account into which the cash was deposited was subject to seizure—not the remaining thirteen financial accounts or the jewelry.
The Civil Asset Forfeiture Reform Act of 2000 requires the government to establish by a preponderance of the evidence that the property in question is subject to forfeiture. 18 U.S.C. § 983(c)(1). Moreover, “if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.” 18 U.S.C. § 983(c)(3).
Commingling of fraud proceeds with untainted money as part of concealment money laundering under 18 U.S.C. § 1956(a)(1)(B)(i) permits the forfeiting of the untainted money in certain circumstances․ Forfeiture of commingled funds ․ is proper when the government demonstrates that the defendant pooled the funds to facilitate or disguise his illegal scheme. Commingling is enough to expose the legitimate funds to forfeiture, if the commingling was done for the purpose of concealing the nature or source of the tainted funds (that is, if the commingling was done to facilitate money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i)).
574 F. App'x 541, 561 (6th Cir. 2014) (internal quotation marks and citations omitted). Claimants observe that in Coffman, the government supplied bank records and financial analyses to support its theory that the defendant commingled tainted and untainted funds to conceal their source. See 574 F. App'x at 561. By contrast, they say, “the government ․ did not offer a single piece of evidence establishing any connection between the tainted agent funds ․ to the other thirteen seized accounts or to the jewelry.” They further argue that their alleged violations of 18 U.S.C. §§ 1956 and 1957 cannot stand, as the government did not show that any of the deposits were designed to conceal or disguise “the nature, the location, the source, the ownership, or the control of the proceeds.” See United States v. Dierker, 417 F. App'x 515, 521 (6th Cir. 2011).
If the claimants had returned to the United States and discovery had commenced, they would have learned that expert analyses of pharmacy records, Medicare records, and patient medical records, would have supported the conclusion that a significant portion of Syed Zaidi's medical practice was outside of medical standards and amounted to drug trafficking; and from a financial analysis of his financial account records, that he laundered the proceeds of that drug trafficking into and between the seized financial accounts. However, claimants were not entitled to discovery of this information through the prematurely filed motion for partial summary judgment.
Had discovery commenced, the inadequacies that Claimants perceive in the government's case may have been confirmed. But Claimants' own absence thwarted such discovery. To allow them to benefit from that absence would defy fairness. The court's denial of Claimants' motion for summary judgment was not erroneous.
III. The court did not err in denying Erum's motion to dismiss the complaint.
In an action governed by 18 U.S.C. § 983(a)(3)(D) the complaint may not be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property. The sufficiency of the complaint is governed by Rule G(2).
Id. Rule G(2), in turn, establishes the requirements for an adequate civil forfeiture complaint, the last of which provides that “[t]he complaint must ․ state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.” Supplemental Rule G(2)(f).
Accepting the complaint's allegations as true, the government satisfied Rule G(2)'s requirements: the complaint supports a reasonable belief that the government would be able to prove at trial that Dr. Zaidi used Erum's accounts to launder the proceeds of his trafficking activities. 18 U.S.C. § 981(a)(1)(C) authorizes the forfeiture of property “derived from proceeds traceable to” a qualifying criminal violation, including unlawful trafficking in controlled substances by a physician. See 21 C.F.R. § 1306.04(a) (“An order purporting to be a prescription issued not in the usual course of professional treatment ․ is not a prescription within the meaning and intent of ․ the [Controlled Substances] Act and the person ․ issuing it[ ] shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.”).
Though Erum was not charged with a crime, assets in her name may nonetheless be subject to forfeiture. See 18 U.S.C. § 981(a)(1)(C) (subjecting to civil forfeiture “[a]ny property ․ which constitutes or is derived from proceeds traceable to” a qualifying criminal violation). The government's financial analysis suggests that Dr. Zaidi “engaged in a complex series of financial transactions using not only his own accounts, but those of his wife and company, to comingle the tainted proceeds with the untainted proceeds, and successfully laundered the tainted proceeds.” As the court noted, “[T]he Government is not required to allege in the complaint all of the facts and evidence at its disposal. It is sufficient for the Government to simply plead enough facts for the claimant to understand the theory of forfeiture, to file a responsive pleading, and to undertake an adequate investigation.” See United States v. $22,173.00 in United States Currency, 716 F. Supp. 2d 245, 248 (S.D.N.Y. 2010). Because “the complaint ․ contain[s] either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory,” Havard, 436 F. App'x at 457 (internal quotation marks and citation omitted), the district court did not err in denying Erum's motion to dismiss.
IV. The court did not err in denying Claimants' motion to release the seized funds to pay their taxes.
Finally, Claimants challenge the district court's denial of their motion to transfer $144,702.00 from the seized financial accounts to be applied to their federal, state, and local taxes. They also sought the transfer of an additional $9,150.00 to their accounting firm for their professional services. Denying the motion, the court looked to 18 U.S.C. § 983(f), which “outlines the circumstances under which civil forfeiture claimants are entitled to immediate release of seized property and the procedure to be followed in obtaining such release.” United States v. Contents of Accounts (Chavez), 629 F.3d 601, 608 (6th Cir. 2011). To demonstrate entitlement to the release of property based on hardship, Claimants must satisfy § 983(f)(1)'s requirements.
(E) none of the conditions set forth in paragraph (8) applies.
18 U.S.C. § 983. Paragraph 8 provides, in relevant part, that the subsection “shall not apply if the seized property ․ is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized.” 18 U.S.C. § 983(f)(8)(A).
Claimants assert that the court errantly applied § 983(f)(1). They note that though the statute provides for the release of seized property to the claimant, they sought instead to transfer seized funds to the Department of Treasury. Such transfer, they say, is not contemplated by § 983(f)(1). But Claimants point to no statute that allows such transfer. As such, the court's denial of the motion was not erroneous.


text: ভুল [ bhula ] n an error, a mistake, a blunder; an omission; oblivion; delirium (ভুল বকা). ☐ a. erroneous, incorrect, wrong. ভুল করা v. to err; to blunder; to commit or make a mistake; to mistake (লোক বা পথ ভুল করা); to be guilty of omission; to forget. ভুল ভাঙা v. to be disillusioned. ভুল হওয়া v. to be wrong or incorrect; to be mistaken or omitted or forgotten. ~চুক, ~ভ্রান্তি n. pl. errors and omissions. ঠিকে ভুল an error in addition; (loos.) an error in fundamentals. ভুলা, ভোলা, ভুল করা v. to mistake, to err. to blunder; to forget; to omit; to be relieved of (দুঃখ ভোলা); to be indifferent or callous to (কর্তব্য ভোলা); to be charmed or be witched (সুন্দর মুখ দেখে ভোলা); to be enticed or deceived or tempted (প্রলোভনে ভোলা); to be cajoled (স্তোকবাক্যে ভোলা); to be wheedled (খেলা দিলে ছেলেটা ভোলে); to be con soled (গান শুনলে তাপিত হৃদয় ভুলবে). ভুলানো v. to cause to err or mistake or forget or omit; to relieve of; to charm, to bewitch; to entice; to deceive, to tempt; to cajole; to wheedle; to con sole. ☐ a. causing to err or mistake or forget or omit; relieving of; charming, bewitching; enticing, deceiving, tempting; cajoling; wheedling; consoling, ভুলানি, ভুলুনি a. & fem. one who charms or bewitches or entices or tempts or cajoles or wheedles. masc. ভুলানে । ভুলুনে, ভুলো a. apt to err, forgetful, oblivious. ভুলের মাশুল দেওয়া to pay for one's mistake or thoughtless act or folly. shadhu 2nd person ordinary present simple tense and present imperative of ভোলা: ভুল [ bhula ] n an error, a mistake, a blunder; an omission; oblivion; delirium (ভুল বকা). ☐ a. erroneous, incorrect, wrong. ভুল করা v. to err; to blunder; to commit or make a mistake; to mistake (লোক বা পথ ভুল করা); to be guilty of omission; to forget. ভুল ভাঙা v. to be disillusioned. ভুল হওয়া v. to be wrong or incorrect; to be mistaken or omitted or forgotten. ~চুক, ~ভ্রান্তি n. pl. errors and omissions. ঠিকে ভুল an error in addition; (loos.) an error in fundamentals. ভুলা, ভোলা, ভুল করা v. to mistake, to err. to blunder; to forget; to omit; to be relieved of (দুঃখ ভোলা); to be indifferent or callous to (কর্তব্য ভোলা); to be charmed or be witched (সুন্দর মুখ দেখে ভোলা); to be enticed or deceived or tempted (প্রলোভনে ভোলা); to be cajoled (স্তোকবাক্যে ভোলা); to be wheedled (খেলা দিলে ছেলেটা ভোলে); to be con soled (গান শুনলে তাপিত হৃদয় ভুলবে). ভুলানো v. to cause to err or mistake or forget or omit; to relieve of; to charm, to bewitch; to entice; to deceive, to tempt; to cajole; to wheedle; to con sole. ☐ a. causing to err or mistake or forget or omit; relieving of; charming, bewitching; enticing, deceiving, tempting; cajoling; wheedling; consoling, ভুলানি, ভুলুনি a. & fem. one who charms or bewitches or entices or tempts or cajoles or wheedles. masc. ভুলানে । ভুলুনে, ভুলো a. apt to err, forgetful, oblivious. ভুলের মাশুল দেওয়া to pay for one's mistake or thoughtless act or folly.

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