basis for recusal. Jano v. King, 5 FSM Intrm. 266, 268 (Pon. 1992).
In determining whether a judge's impartiality might reasonably be questioned, the test is whether a disinterested reasonable person who knows all the circumstances would harbor doubts about the judge's impartiality. A reasonable disinterested observer would require more evidence than that one of the parties was seen at hotel with where the judge had checked in. Jano v. King, 5 FSM Intrm. 266, 270 (Pon. 1992).
Even when sufficient allegations have not been made, a judge may disqualify himself if he believes sufficient grounds exist. Jano v. King, 5 FSM Intrm. 266, 271 (Pon. 1992).
Plaintiff filed this matter on October 4, 1991 in Pohnpei State Court. On October 7, 1991 defendant King petitioned the State Court for removal of the action to the Supreme Court of the Federated States of Micronesia on the grounds that diversity of citizenship exists. Defendant also filed on the same day a motion for an expedited hearing on the petition for removal. Defendant's motion for expedited hearing was granted on October 8, 1991 and a hearing was scheduled for October 9, 1991. At the October 9 hearing defendant King's petition for removal was granted and this matter was removed to the Supreme Court of the Federated States of Micronesia, Trial Division.
On November 20, 1991 plaintiff filed this motion which demands that I recuse myself from sitting as the trial judge in this matter. Section 124(6) of 4 F.S.M.C. requires that motions for recusal be determined before proceeding further in the matter and that reasons for granting or denying be made part of the record.
This court has consequently held all other matters in this case in abeyance pending its decision on plaintiff's motion for recusal.
"(1) A Supreme Court Justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(d) where he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; ..."
Plaintiff's memorandum of points and authorities sets forth a number of arguments and conclusions demanding my recusal which can be summarized as follows: 1) Chief Justice King "apparently shopped for his own friendly judge" by hand-picking me to be the judge to handle this matter; (2) My alleged personal friendship with Judge King gives me a personal bias in favor of Judge King; (3) I am "saddled with personal and professional interests that could be substantially affected by the outcome of this civil lawsuit." (plaintiff's memorandum, at 3).
Mere argument by counsel, be it oral or set forth in a brief, is not, however, the basis on which motions to disqualify are determined. Motions for recusal must be supported by evidence in the form of an affidavit stating the grounds for recusal. 4 F.S.M.C. 124(6); Skilling v. FSM, 2 FSM Intrm. 209, 216-17, (App. 1986). It is plaintiff's burden to go beyond wide-ranging speculation or conclusions and show a factual basis for recusal. United States v. Peltier, 553 F. Supp. 886 (D.N.D. 1982); Markus v. United States, 545 F. Supp. 998, 1000 (S.D.N.Y. 1982). The affidavit filed in support of a motion for recusal is, therefore, where a court must look to determine the true substance of the motion.
5. On October 8, 1991, or exactly four days after I had filed the civil suit against Mr. Edward C. King, et al., I had breakfast at the Harbor View Hotel, located in Tekehtik Pohnpei.
Hotel and he appeared to be anxious to meet someone in the Hotel. Mr. King was still standing there when I left the Hotel.
7. On October 8, 1991, at about 3:20 p.m., I received via facsimile transmission a copy of a court order issued by the FSM Supreme Court, Trial Division, granting Mr. King's petition for an "Expedited Hearing," on his petition for removal of my civil complaint then-pending in the Pohnpei Supreme Court, Trial Division to be heard next day October 09, 1991, at 9:00 a.m.
8. The said FSM Court order was signed by Arthur Ngiraklsong, Associate Justice Supreme Court, the Republic of Palau.
9. I contacted Harbor View Hotel after the order for removal had been issued as I was kind of curious why Judge King appeared to be waiting and anxious to meet someone at the Harbor View Hotel.
10. The Hotel Management informed me that Judge Arthur Ngirasklong [sic], of the Palau Supreme Court checked into room 316 at the Harbor View Hotel on October 7, and checked out on October 9, 1991. I then immediately formed a sudden and uncomfortable suspicion and fear that Mr. King had conferred with Judge Ngiraklsong regarding the civil lawsuit I had earlier filed against Mr. King.
11. On October 9, 19891, Judge Ngiraklsong granted Mr. King's petition for removal of my civil case from the Pohnpei Supreme Court.
12. I feared that the appointment of Palau Supreme Court Associate Justice Ngiraklsong by FSM Supreme Court Chief Justice Edward C. King to preside over my case would prejudice my case for the reason judge King made such appointment or designation after judge King has already been named a defendant in the civil suit. Such appointment or designation by judge King gave me the feeling that judge King had freely appointed his own judge to hear the suit against him.
assigned this case to me after he had been named a defendant; and 2) that my impartiality might reasonably be questioned because of an appearance that Judge King assigned this matter to me after Judge King had already been named as a defendant. These allegations can be characterized as impropriety in fact and impropriety in appearance.
Even if every statement made by plaintiff is presumed to be true, the affidavit does not present a scintilla of evidence that Judge King "hand-picked" me to be the Judge on this matter. The affidavit does not state that plaintiff or any other person saw Judge King and me meet at the Harbor View Hotel on October 8, 1991, or that any conversation was had between us at any time regarding the subject matter of this case. Plaintiff's conclusions are based solely on his opinion that Judge King appeared to be anxious to meet someone and that he had been informed that I had checked into the Harbor View Hotel on October 7, 1991. None of plaintiff's statements in this regard are evidence of anything except that plaintiff and Judge King were both at the Harbor View Hotel on October 8, 1991 around the time plaintiff was eating his breakfast. The affidavit shows only that plaintiff allowed his opinion that Judge King appeared to be anxious to meet someone to cause him fear and speculation on which he based his conclusions.
Had plaintiff reviewed the file in this matter before making his allegations he would have discovered that the true facts are that Judge King did not assign this matter to me. Judge King assigned administrative responsibility to Judge Benson. See, October 8, 1991 Memorandum from Chief Justice King to Justice Benson. Judge Benson then determined that the case should be assigned to me. See October 8, 1991 letter from Justice Benson to Justice Ngiraklsong.
This is the precise procedure plaintiff claims should have been adopted. At page 10 of his brief plaintiff states: "this case should have been sent to FSM Supreme Court Justice Benson in Chuuk State to determine the proper administrative procedures."
Hotel. A reasonable disinterested observer would require at least a shred of evidence to support the conclusion that such a clandestine meeting occurred.
As stated at pages 267-68 above, plaintiff's brief also alleges that I must disqualify myself under 4 F.S.M.C. §§ 124 2(a) & (d) on the grounds that I have a personal bias in favor of Judge King based upon a close personal friendship and professional relationship including continued appointment to serve as a temporary Justice of the FSM Supreme Court. Plaintiff's affidavit is silent on these issues and pursuant to Skilling, 2 FSM Intrm. at 210-11, these points need not be considered as part of plaintiff's motions as they fail to satisfy the requirements of 4 F.S.M.C. § 124.
Even when sufficient allegations have not been made, a judge may disqualify himself if he believes sufficient grounds exist. FSM v. Jonas (II), 1 FSM Intrm. 306, 315 (Pon. 1983). Despite plaintiff's failure to make sufficient allegations of bias and personal interest, I will briefly comment upon them to avoid any conclusions being drawn from silence.
Any analysis of the file in this matter leads me to the conclusion that the causes of action relating to Judge King involve straightforward legal issues regarding the liabilities of judges arising from the signing of search and arrest warrants. The issues raised are not fact specific to Judge King: they would apply to any judge signing a warrant under the circumstances surrounding the case, including the legal issues presented. I am unable to conclude that: 1) a disinterested reasonable person knowing all of the circumstances would harbor doubts as to my impartiality; or 2) that my relationship with Judge King and my service as a temporary Justice of the FSM Supreme Court creates any personal bias, prejudice or interest requiring my recusal pursuant to 4 F.S.M.C. §§ 124(2)(a) or (d).
Plaintiff's motion for recusal is denied.
In his supplemental brief plaintiff claims that the appointment of this Temporary Judge to preside over this matter violates FSM Const. art. XI, § 9, and 4 F.S.M.C. 104.
The FSM Congress has the authority to enact legislation on procedures for appointment of special judges. FSM Const. art. XI, § 9(f). The appointment of this Temporary Judge by Acting Chief Justice Benson has followed the procedures set forth under 4 F.S.M.C. 104.
544, 43 S. Ct. 394, 396, 67 L. Ed. 785 (1923). Defendant has failed to carry both duties.
Plaintiff's motion to recuse this Court on the above constitutional grounds is DENIED.


text:
Judgment affirmed. Barnes, J., and Senior Appellate Judge Harold R. Banke concur.
Aggravated assault. Floyd Superior Court. Before Judge Salmon.
Defendant Thomas Caldwell appeals his conviction, following a jury trial, of aggravated assault. Caldwell contends that the trial court erred (1) by denying his motion for directed verdict of acquittal, (2) by allowing the admission of hearsay evidence, and (3) by failing to grant his motion for mistrial after his character was injected into evidence. For the reasons set forth below, we affirm.
1. "The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction." (Punctuation omitted.) Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998).
A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [Caldwell] no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.
(Citations omitted.) White v. State, 233 Ga. App. 24, 25-26 (503 SE2d 26) (1998).
So viewing the evidence, it reveals that Caldwell's wife told the investigating officers that she and Caldwell had a fight during which Caldwell punched her, knocked her down, and fired a gun in her general direction. The investigating officers found spent shell casings at the side of the house eight or nine feet from the area where the victim was pushed and fell to the ground. The officers testified that Caldwell lacked self-control, was glassy eyed, unsteady on his feet, and had a strong odor of alcoholic beverage on his person.
A rational trier of fact could have found Caldwell guilty beyond a reasonable doubt of aggravated assault based on this evidence. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Caldwell contends that the trial court erred by allowing the investigating officers to testify as to what the victim told them on the night of the incident. He contends that such testimony was hearsay. At trial, the victim testified and either denied the statements that the officers attributed to her or stated that she did not remember what she told them.
In Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), the Supreme Court of Georgia determined that "a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes." Therefore, because the victim testified at trial and was subject to cross-examination, and claimed no privilege concerning such testimony, her prior inconsistent statement was admissible as substantive evidence. The trial court did not err in allowing the officers to testify as to the witness's prior inconsistent statement.
3. Caldwell contends that the trial court erred in denying his motion for a mistrial when the State improperly injected his character into evidence. The record reveals that in response to the State's inquiry regarding whether the victim indicated that she was afraid of Caldwell, the officer responded: "She stated that she was afraid of Mr. Caldwell and that -- she advised me that they had had previous complaints." The prosecutor did not ask any questions regarding the previous complaints but continued to ask about the victim's fear and the specific events surrounding the incident. Only after the prosecutor had asked eight more questions, unrelated to "previous complaints," did Caldwell's attorney move for a mistrial on the grounds that Caldwell's character had improperly been placed into evidence. 1 Assuming arguendo that the officer's statement impacted negatively on Caldwell's character, the witness's testimony was not responsive to the prosecutor's question, and there is no indication that the examination was contrived. "When a witness gives a non-responsive answer to a question impacting negatively on the defendant's character, this does not place the defendant's character in issue under OCGA 24-9-20 (b)." (Punctuation omitted.) Manker v. State, 223 Ga. App. 3, 5 (2) (476 SE2d 785) (1996). See also Williams v. State, 269 Ga. 827, 829 (5) (504 SE2d 441) (1998). Following the trial court's ruling, Caldwell did not request curative instructions. The trial court did not err in denying Caldwell's motion for mistrial.
Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.
1 We do not reach whether Caldwell's motion for mistrial was sufficiently contemporaneous with the evidence to preserve the issue. See Smith v. State, 180 Ga. App. 422, 423-424 (1) (349 SE2d 279) (1986).
James A. Satcher, Jr., for appellant.
DECIDED APRIL 8, 1999 -- CERT. APPLIED FOR.

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Alitretinoin is a retinoid that is potentially dangerous when orally administered due to its teratogenicity. Because of this potential toxicity, its Canadian labeling states that it should be prescribed only by physicians knowledgeable in the use of systemic retinoids and who understand the risks of teratogenicity in females of childbearing potential. In addition, these females are required to have pregnancy tests before, at regular intervals during, and after discontinuation of alitretinoin therapy to exclude pregnancy. Because Toctino is unapproved in the United States, these safety controls are bypassed when alitretinoin is purchased over the Internet by customers in the United States without consultation with and a valid prescription from a physician.
This places American patients who use the drug at risk for adverse effects. Thus, Toctino offered for sale on your website is misbranded within the meaning of section 502(f)(1) of the FD&C Act [21 U.S.C. §321(f)(1)] in that the labeling for Toctino fails to bear adequate directions for use. The introduction or delivery for introduction into interstate commerce of a misbranded drug product is a prohibited act under section 301(a) of the FD&C Act [21 U.S.C. §331(a)].
The Center for Tobacco Products of the Food and Drug Administration (FDA) recently reviewed the website http://www.cigarettesbuyonline.com, and determined that the cigarette products listed are offered for sale to U.S. customers. Under section 201(rr) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C.§ 321(rr)), as amended by the Family Smoking Prevention and Tobacco Control Act, these products are tobacco products because they are made or derived from tobacco and intended for human consumption. Certain tobacco products, including cigarettes, are subject to FDA jurisdiction under section 901(b) of the FD&C Act (21 U.S.C. § 387a(b)).
FDA has determined that several of your products are adulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)) because you promote them as modified risk tobacco products without an FDA order in effect that permits such promotion. Additionally, FDA has determined that your “Aroma Rich Apple” and “Aroma Rich Rum Cherry” cigarettes are adulterated under section 902(5) of the FD&C Act (21 U.S.C. § 387b(5)) or misbranded under section 903(a)(1) of the FD&C Act (21 U.S.C. § 387c(a)(1)). You can find the FD&C Act through links on FDA’s homepage at http://www.fda.gov.
You describe products that you offer for sale on the website http://www.cigarettesbuyonline.com as being “Light” or “Ultra-Light” by referring to them as such in product advertising. Specifically, our review of the website revealed that you offer for sale the following cigarettes described as “Lights”: Bond Special Selection, Camel Blue, Chesterfield Classic Blue, Davidoff Gold, Dunhill Fine Cut Dark Blue, Kent Blue Futura No. 8, Lucky Strike Original Silver, Marlboro Gold, Parliament Aqua Blue, Winston Blue, Winston Super Slims Blue 1 DO’s, Magna Balanced Blue, More Balanced Blue, Pall Mall Blue, Sobranie Blue, Sobranie White Russian, and Viceroy Blue. Our review of the website revealed that you offer for sale the following cigarettes described as “Ultra-Lights”: Bond Fine Selection, Camel Silver, Chesterfield Classic Bronze, Davidoff Blue, Dunhill Fine Cut Azure, Kent Silver Neo No. 4, L&M Silver Label, Parliament Silver Blue, Vogue Super Slims Lilas 100s, Winston Silver, Camel Black Mini, Marlboro Silver, More Subtle Silver, Pall Mall Azure, Sobranie Gold, and Viceroy Silver.
A tobacco product with a label, labeling, or advertising that uses the descriptor “light,” “mild,” or “low,” or a similar descriptor, is a “modified risk tobacco product” under section 911(b)(2)(A)(ii) of the FD&C Act (21 U.S.C. § 387k(b)(2)(A)(ii)). Under section 911(a) of the FD&C Act (21 U.S.C. § 387k(a)), no person may introduce or deliver for introduction into interstate commerce any modified risk tobacco product without an FDA order in effect under section 911(g) of the FD&C Act 21 U.S.C. § 387k(g)). A product that is in violation of section 911(a) of the FD&C Act (21 U.S.C.§ 387k(a)) is adulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)). Because the website uses the descriptor “light” or similar descriptors for the above-listed products, the products are modified risk tobacco products. Because these products are offered for sale to U.S. customers without an appropriate FDA order in effect under section 911(g) of the FD&C Act (21 U.S.C. § 387k(g)), these products are adulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)).
[A] cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice … that is a characterizing flavor of the tobacco product or tobacco smoke.
As of September 22, 2009, cigarettes marketed and sold in the United States in violation of this provision are adulterated under section 902(5) of the FD&C Act (21 U.S.C. § 387b(5)). Thus, your flavored cigarettes are adulterated.
If, however, these cigarettes do not contain a characterizing flavor, they are misbranded under section 903(a)(1) of the FD&C Act (21 U.S.C. § 387c(a)(1)) as their labeling is false and misleading because it makes the representation that the products contain apple, or rum cherry as characterizing flavors of the tobacco products.
You should immediately correct the violations stated above and take any necessary actions to bring your tobacco products into compliance with the FD&C Act. The violations discussed in this letter do not necessarily constitute an exhaustive list, and it is your responsibility to ensure that your tobacco products on this website, or any other websites you own, operate, and/or control, comply with the applicable provisions of the FD&C Act. Failure to ensure full compliance with the FD&C Act may result in FDA initiating further action without notice, including, but not limited to, civil money penalties, no-tobacco-sale orders, criminal prosecution, seizure, and/or injunction. Please note that adulterated and misbranded tobacco products offered for importation into the United States are subject to detention and refusal of admission.
Please submit a written response to this letter within 15 working days from the date of receipt describing your corrective actions, including the dates on which you discontinued the violative promotion, advertising, sale, and/or distribution of these tobacco products.
If you have any questions about the content of this letter, please contact Ele lbarra-Pratt at (301) 796-9235 or via email at Elenita.lbarraPratt@fda.hhs.gov.
The Center for Tobacco Products of the Food and Drug Administration (FDA) recently reviewed the website http://www.buycheaptobacco.net, and determined that the cigarette products listed are offered for sale to U.S. customers. Under section 201(rr) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. § 321(rr)), as amended by the Family Smoking Prevention and Tobacco Control Act, these products are tobacco products because they are made or derived from tobacco and intended for human consumption. Certain tobacco products, including cigarettes, are subject to FDA jurisdiction under section 901(b) of the FD&C Act (21 U.S.C. § 387a(b)).
FDA has determined that several of your products are adulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)) because you promote them as modified risk tobacco products without an FDA order in effect that permits such promotion. You can find the FD&C Act through links on FDA’s homepage at http://www.fda.gov.
You describe products that you offer for sale on the website http://www.buycheaptobacco.net as being “light” or “ultra-light” by referring to them as such in product advertising and adding the qualifiers “Lights,” “Ultra-Lights,” to the product names. Specifically, our review of the website revealed that you offer for sale the following cigarettes described as “Lights”: Bond Special Selection, Camel Blue, Chesterfield Classic Blue, Davidoff Gold, Dunhill Fine Cut Dark Blue, Kent Futura No. 8, Lucky Strike Original Silver, Marlboro Gold, Pall Mall Blue, Parliament Aqua Blue, Winston Blue, Winston Super Slims Blue 100s, Magna Balanced Blue, More Balanced Blue, Sobranie Blue, Sobranie White Russian, and Viceroy Blue. Our review of your website revealed that you offer for sale the following cigarettes described as “Ultra-Lights”: Bond Fine Selection, Camel Silver, Chesterfield Classic Bronze, Davidoff Blue, Dunhill Fine Cut Azure, Kent Silver Neo No. 4, L&M Silver Label, Parliament Silver Blue, Vogue Super Slims Lilas 100s, Winston Silver, Camel Black Mini, Marlboro Silver, More Subtle Silver, Pall Mall Azure, Sobranie Gold, and Viceroy Silver.
A tobacco product with a label, labeling, or advertising that uses the descriptor “light,” “mild,” or “low,” or a similar descriptor, is a “modified risk tobacco product” under section 911(b)(2)(A)(ii) of the FD&C Act (21 U.S.C. § 387k(b)(2)(A)(ii)). Under section 911(a) of the FD&C Act (21 U.S.C. § 387k(a)), no person may introduce or deliver for introduction into interstate commerce any modified risk tobacco product without an FDA order in effect under section 911(g) of the FD&C Act (21 U.S.C. § 387k(g)). A product that is in violation of section 911(a) of the FD&C Act (21 U.S.C. § 387k(a)) is adulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)). Because the website uses the descriptor “Light,” or similar descriptors for the above-listed products, the products are modified risk tobacco products. Because these products are offered for sale to U.S. customers without an appropriate FDA order in effect under section 911(g) of the FD&C Act (21 U.S.C. § 387k(g)), these products are adulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)).
If you have any questions about the content of this letter, please contact Ele Ibarra-Pratt at (301) 796-9235 or via email at Elenita.IbarraPratt@fda.hhs.gov.
I knew this sounded too good to be true. I just updated my employment profile on linked in and another job hunting website, and I got the below series of emails. After researching the company, I searched for “national employer database’ and came across several other emails the same but different companys.
I have tried calling the number listed on the website in his signature and its a voicemail service. A google search of the address does not list the company in that building. It is also very unusual for an australian company to have health plans. So i Think this is a scam? Anyone else come across this?
My name is Aaron Tolmie, I work for Ausevro Finance Pty. Ltd.
I have recently found your resume in the national database for Australian employers and I hope I can interest you with our Customer Service Representative position.
*****, this is an immediate opportunity with complete ongoing training. Well paid. Full benefits package. Flexible. Both P/T and F/T schedules are available.
I know that you are not located in ACT (we are based in Kingston, ACT), but that’s not an issue, because we are looking for Customer Service Representative exactly in your area.
*****, if you are still looking for a new career, please let me know immediately and I will send you more details.
Thanks for your email. I am still looking for a customer service position, and have just had a look at your website.
I would be interested to find out more about the position mentioned below – I am located on the Gold Coast in the oxenford area.
I am glad that you’re interested to learn more about the Customer Service Representative vacancy.
Ausevro Finance Pty. Ltd. is the provider of the powerful transaction management platform in Australia. Our platform allows large companies with nationwide networks to accept tens of payment methods and process thousands of payments per seconds. We already have many big clients in Australia including banks and telecom companies. Our platform represents very flexible system, which can process any kind of transaction method. It allows customers and users to perform any kind of transfer from one money system to another in no time. Our system enables clients to broaden the variety of accepted payment methods, to reduce the transaction time and to make the whole payment operation highly secured.*****, you may always learn more about Virtual Ausevro and our services at http://www.ausevro.com.
Our clients are banks and telecom companies. They require us to provide them with the certified Customer Service Representatives. First of all, you will be provided with a training to cover all aspects of the platform operation and maximization. The training is remote (Skype + email + DVDs with interactive lessons + training website).
You will not need to attend any lectures or seminars. You will learn the platform right from your home via Internet and your supervisor will make sure that you cope with every task. It is online, so you will be studying from home using personal computer with Internet access. It will not cost you anything, this training is absolutely free.
At the end of the training you will receive an official certificate from Ausevro. It guarantees your further employment.
*****n, it doesn’t matter that you are not in Kingston, ACT, where our company is located, because you will be trained remotely and after this training you will work for one of our clients which has back office right in your home area.
The office of our client (your future employer) will be located close to your home, so you won’t have to travel at all.
When you decide to change the employer, Ausevro will always provide you with other vacancies in your area. We guarantee that you will have a good choice of employers and we guarantee successful job placement right after the training.
To sum it all up, Ausevro trains you remotely and sends to one of its clients. As the result you are employed by a bank or a telecom company with office near your home.
– The training lasts for 15 business days, 1-2 hours a day and schedule is pretty flexible.
– During the training you will be paid $400 on the 7th training day and $600 on the 15th training day.
– During the first week of the training you will learn the payment systems supported by our platform.
– Second week is dedicated to concept and structure.
– On the last third week you will be learning the duties and work instructions.
– Also on the third week supervisor will provide you with a list of your prospective employers – our clients that need Customer Service Representative and have office in your area.
– You will have a privilege of choosing an employer, so you will choose the companies where you would prefer to work and supervisor will arrange interviews for you there right on the fourth week.
*****, I cannot name the companies available in your area at this moment, because it is too early to request the list, but be sure to receive a list of 5-6 prospective employers that will be waiting for you after training.
When you finally start working as a Customer Service Representative in one of the national companies, which uses our platform, you will have a guaranteed minimum salary of AUD $750 per week for the part time or AUD $1200 per week for the full time including full benefits package (life, medical, dental, vision, disability) and superannuation. Of course, you will not be required to travel and the office will be located conveniently.
A Customer Service Representative will have a regular working schedule Monday through Friday with public holidays, regular paid leave and paid sick leave.
*****, I cannot tell you the volume of hours necessary for full time or part time, because it depends on the employer. You will negotiate your schedule and hours during the interviews with employers. You should expect flexibility.
You will get all necessary knowledge and experience during the training.
However you should know that as Customer Service Representative you will process incoming inquiries related to our platform, guide users and monitor current operations within platform. You will not communicate with the company’s customers or users directly but company’s staff only and you will report to the local senior manager of the company.
Of course you will not be making any cold calling or sales, you will only help the local staff of the bank or telecom company with the system issues as our certified specialist only.
This is a strictly customer service role, not technical, and it doesn’t involve any sales. I hope it’s clear.
*****, the training can be started at any time on any week day, so we are ready as soon as you are. The sooner = the better.
There is no interview or meeting required to start the training, because this is remote training and we certainly do not interview the training candidates. You are not employed right away, you only start the online training.
Of course, you will be interviewed after the remote training before official employment. You will have face-to-face interviews with our clients right after the training.
If you are already willing to commence, then I have few questions for you.
Are you ready to start full-time?
What are your strengths and how might they relate to this role and the company?
What tasks do you really not enjoy doing? How do you motivate yourself to do them?
What do you see yourself doing in 3 years from now?
Have you had to deal with conflict at work? How did you handle it? What would you do differently?
I am going to discuss your candidature with management as soon as I receive your answers.
Please tell me the best phone number and time to contact you in case of any question?
Thanks for that – I will get back to you shortly. In the mean time, I have a couple of questions.
Is there any cost involved with the training?
Do you have a number I can contact you on if I have any other questions whilst I am filling out the questionnaire you included.
A lawsuit filed in New York alleged that ScamFraudReport.org is own by Brandon H. Mushlin of Bulldog Capital Funding, LLC, a division of Bulldog Capital Group.
We are a group or professionals located in Australia, Asia, Ukraine, UK and US that formed in 2002 who were once burned by some individuals, companies and their fraud and scam schemes. We do not want you to experience same. We are making it our Mission to ensure this doesn’t happen to you!
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Peter A. Shamoun , Alfred J. Zaccagnino , Samarian Group, LLC and Leonard Barrie, Jr.
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(3) a law of another jurisdiction which provides for a security interest to be indicated on a certificate of title as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the property.
(b) Compliance with other law. Compliance with the requirements of a statute, regulation, or treaty described in subsection (a) for obtaining priority over the rights of a lien creditor is equivalent to the filing of a financing statement under this article. Except as otherwise provided in subsection (d) and K.S.A. 2017 Supp. 84-9-313 and 84-9-316(d) and (e), and amendments thereto, for goods covered by a certificate of title, a security interest in property subject to a statute, regulation, or treaty described in subsection (a) may be perfected only by compliance with those requirements, and a security interest so perfected remains perfected notwithstanding a change in the use or transfer of possession of the collateral.
(c) Duration and renewal of perfection. Except as otherwise provided in subsection (d) and K.S.A. 2017 Supp. 84-9-316(d) and (e), and amendments thereto, duration and renewal of perfection of a security interest perfected by compliance with the requirements prescribed by a statute, regulation or treaty described in subsection (a) are governed by the statute, regulation or treaty. In other respects, the security interest is subject to this article.
(d) Inapplicability to certain inventory. During any period in which collateral subject to a statute specified in subsection (a)(2) is inventory held for sale or lease by a person or leased by that person as lessor and that person is in the business of selling goods of that kind, this section does not apply to a security interest in that collateral created by that person.
History: L. 2000, ch. 142, § 31; L. 2002, ch. 159, § 11; L. 2007, ch. 135, § 3; L. 2009, ch. 91, § 3; L. 2012, ch. 84, § 4; July 1, 2013.
Former section 84-9-311 was repealed by L. 2000, ch. 142, § 155 and the number reassigned to the current text.


Robert D. Rhoad represents clients in intellectual property and complex commercial litigation, primarily involving patents and licensing disputes, but also involving trade secrets, unfair competition claims, and covenants not to compete. He handles cases involving a wide range of technology areas, including cases involving patent portfolios and other proprietary information relating to drug delivery systems, pharmaceutical products, medical devices, and computer hardware and software technologies.
Mr. Rhoad has handled litigation and provided strategic patent advice for a diverse group of clients, including Endo Pharmaceuticals, Boston Scientific, Cardinal Health, Acer, Gateway, Hitachi, Pfizer, and other prominent life sciences and technology companies. He has handled many Markman hearings and trials, and has extensive experience litigating Hatch-Waxman Act ANDA infringement actions on behalf of branded pharmaceutical companies. Mr. Rhoad has tried cases in both state and federal court and has also successfully represented clients in arbitration, mediation, and other alternative dispute resolution proceedings.
As a respected patent litigator, Mr. Rhoad is regularly invited to lecture at the annual Joint Patent Law Seminar, sponsored jointly by the Connecticut, New Jersey, New York, and Philadelphia Intellectual Property Law Associations, and other venues on issues of patent law, intellectual property protection, and trade secret law. Mr. Rhoad was named an “IP Star” in 2018, and in 2015, he was named New Jersey Intellectual Property Litigator of the Year by Managing Intellectual Property. In 2017, he was named a “Life Sciences Star” by LMG Life Sciences, and the publication described Mr. Rhoad as a "highly recommended Hatch-Waxman litigator" in 2015. Mr. Rhoad is the managing partner of Dechert's Princeton office.
Endo Pharmaceuticals v. Teva, et al. (U.S. District Court, Southern District of New York, District of Delaware). Trial counsel for Endo Pharmaceuticals in Hatch-Waxman Act cases filed against seven generic filers involving Endo's flagship OPANA® ER product. Endo prevailed in a five-week trial in the S.D.N.Y, and secured Federal Circuit affirmance of that trial victory, with all generics enjoined though 2023. Endo also prevailed with respect to an additional patent in a separate trial in Delaware. That ruling is on appeal, with all generics enjoined for an additional six years until 2029.
Argued the appeal of a large, multi-million dollar patent infringement judgment against a prominent ecommerce retailer in a case involving Internet-based ecommerce website technologies; the Federal Circuit vacated the judgment, absolving the client of any liability.
Lead counsel for a global healthcare company in a series of Hatch-Waxman Act infringement litigations against several generic manufacturers relating to the company’s cardiac care products. We successfully settled the cases following a favorable Markman ruling.
Endo Pharmaceuticals and Teikoku Seiyaku v. Watson Labs, Mylan, Noven and TWi (U.S. District Court, District of Delaware). Trial counsel for Endo and Teikoku in their prosecution of Hatch-Waxman Act ANDA cases involving Endo’s US$750 million a year Lidoderm® analgesic patch. Following a six-day bench trial against Watson, the first-filer, that case was settled. Other related cases settled before trial.
Endo Pharmaceuticals v. Impax, Actavis, Barr, Sandoz, Watson and Roxane (U.S. District Court, District of New Jersey). Trial counsel for Endo in Hatch-Waxman Act ANDA cases filed against six generic companies involving Endo’s branded oxymorphone extended release tablet (OPANA® ER), two of which went to trial but settled before a judgment was rendered.
High Point v. T-Mobile (U.S. District Court, District of New Jersey). Representation of High Point in litigation in relation to patents developed at Bell Labs which cover fundamental elements of CDMA wireless networks and related infrastructure equipment. Cases are still pending.
Lucent Technologies v. Gateway, Inc. (U.S. District Court, Southern District of California). Senior member of the Dechert team that defended computer-maker Gateway in a long-running dispute with Lucent, where Gateway received a number of significant and high-profile pre-trial rulings. When The National Law Journal named Dechert to its 2007 “Defense Hot List,” which recognizes just 10 firms nationally for “exemplary, cutting-edge defense,” the publication noted this case as a distinguishing aspect of the firm’s overall litigation practice.
Paris, et al. v. R.P Scherer and Cardinal Health (U.S. District Court, District of New Jersey). Lead counsel in the defense of a wide-ranging patent and licensing dispute involving R.P. Scherer/Cardinal Health’s gelatin-free soft capsule technology, in which the most significant claims were dismissed by motion; the case settled favorably thereafter.
Elonex v. Packard Bell NEC, et al.; Elonex v. Compaq Computer, et al. (U.S. District Court, District of Delaware). Senior member of the team pursuing a licensing and litigation campaign in relation to Elonex’s monitor power management technology. Brought patent infringement claims in the U.S. against more than 30 companies, with Elonex receiving more than US$125 million in royalties, settlements, and damages, including a US$9 million judgment after trial in the District of Delaware, which the Federal Circuit affirmed.
Lectec v. Endo Pharmaceuticals, et al (U.S. District Court, Eastern District of Texas). Led Endo’s defense of a patent infringement claim relating to Endo’s Lidoderm® product, which settled on the eve of the preliminary injunction hearing.
Hewlett-Packard v. Acer, Inc. (U.S. District Court, Western District of Wisconsin). Led Acer’s pursuit of infringement claims, and defense of related infringement counterclaims, relating to patented computer power management technologies, which settled favorably on the eve of trial.
Lavipharm Laboratories v. Conopco/Unilever (U.S. District Court, District of New Jersey). Lead counsel representing the startup biotechnology company in a patent infringement and misappropriation of trade secrets suit against a prominent consumer products company, resulting in a lucrative license obtained after moving for entry of a preliminary injunction.
Ludlow Corp. v. Conmed Corp. (U.S. District Court, District of Massachusetts). Lead counsel in the defense of an infringement claim relating to Conmed’s portfolio of medical electrodes, which was settled favorably.
Speaker, "Hot Topics re. §101 and §102" breakout session.
Moderator, "Hot Topics in Patent Litigation" roundtable session.
Speaker, "The Evolving Principles of Venue and Jurisdiction in the Aftermath ofTC Heartland" panel which outlined: Understanding the repercussions of TC Heartland on Paragraph IV litigation; Exploring the jurisdictions where the recent flurry of patent infringement complaints have been filed, and assessing how different jurisdictions are interpreting the decision; and Examining the Federal Circuit’s recent rulings on District Court interpretations of TC Heartland, as well as the various litmus tests, which some jurisdictions have devised, in the aftermath of this decision.


§ C-1-2 Rights and obligations.
§ C-2-2 Officers appointed by the Board of Directors.
§ C-2-3 Restrictions on holding office.
§ C-2-4 Definitions; Ethics Commission; standards of official conduct.
§ C-2-6 Additional compensation not to be paid.
§ C-2-8 Removal from office by Board of Directors.
§ C-2-9 Removal from office by General Manager.
§ C-2-13(a) Merit system established.
§ C-2-14 Justices of the Peace.
§ C-3-1 Board of Directors; general powers.
§ C-3-2 Number; election; term.
§ C-3-5 Chairman and Vice Chairman.
§ C-3-8 Public hearings on ordinances.
§ C-3-9 Petition for overrule.
§ C-3-10 Petition for enactment.
§ C-3-11 Revision of existing ordinances.
§ C-3-12 Joint annual meeting of Board of Directors and Board of Education.
§ C-3-13 Petition for budget referendum.
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§ C-5-9 Board of Assessment Appeals.
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§ C-5-12 Lapse of appropriation.
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§ C-5-17 Purchases and contracts.
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Duties of Treasurer — See C.G.S. § 7-80 et seq.
Municipal charters and special acts — See C.G.S. § 7-187 et seq.
Police departments — See C.G.S. § 7-274 et seq.
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Municipal bond issues — See C.G.S. § 7-369 et seq.
Municipal audits — See C.G.S. § 7-391 et seq.
Merit system — See C.G.S. § 7-407 et seq.
Admission of electors — See C.G.S. § 9-12 et seq.
Registrars of voters — See C.G.S. § 9-190.
Deputy registrars of voters — See C.G.S. § 9-192.
Nominations — See C.G.S. § 9-372 et seq.
Boards of education — See C.G.S. § 10-218 et seq.
Property tax assessment — See C.G.S. § 12-40 et seq.
Board of Assessment Appeals — See C.G.S. § 12-110 et seq.
Collector of Revenue — See C.G.S. § 12-130.
Tree Warden — See C.G.S. § 23-58 et seq.
Sec. 1-2 Rights and obligations.
Sec. 2-2 Officers appointed by the Board of Directors.
Sec. 2-3 Restrictions on holding office.
Sec. 2-4 Definitions; Ethics Commission; standards of official conduct.
Sec. 2-6 Additional compensation not to be paid.
Sec. 2-8 Removal from office by Board of Directors.
Sec. 2-9 Removal from office by General Manager.
Sec. 2-13(a) Merit system established.
Sec. 2-14 Justices of the Peace.
Sec. 3-1 Board of Directors; general powers.
Sec. 3-2 Number; election; term.
Sec. 3-5 Chairman and Vice Chairman.
Sec. 3-8 Public hearings on ordinances.
Sec. 3-9 Petition for overrule.
Sec. 3-10 Petition for enactment.
Sec. 3-11 Revision of existing ordinances.
Sec. 3-12 Joint annual meeting of Board of Directors and Board of Education.
Sec. 3-13 Petition for budget referendum.
Sec. 4-2 Tenure and removal.
Sec. 4-4 Absence or disability of General Manager.
Sec. 4-5 General Manager, powers and duties.
Sec. 4-6 Delegation of authority during vacancy of office.
Sec. 5-2(b) Submission to Board of Directors.
Sec. 5-5 Consideration by the Board.
Sec. 5-9 Board of Assessment Appeals.
Sec. 5-11(a) Appropriation of gifts or other aid.
Sec. 5-12 Lapse of appropriation.
Sec. 5-13 Director of Finance to assume former powers and duties of Town Treasurer.
Sec. 5-16 Director of Finance.
Sec. 5-17 Purchases and contracts.
Sec. 5-23 Assessment for collection of taxes.
Sec. 5-24 Borrowing in anticipation of taxes.
Sec. 5-25 Borrowing for capital improvements.
Sec. 5-28 Special taxing district.
Sec. 6-1 Collector of Revenue.
Sec. 7-4 Admission of electors.
Sec. 8-1 Powers and duties.
Sec. 9-1 Election to Board of Education.
Sec. 9-2 Powers and duties of Board of Education.
Sec. 9-3 Superintendent of Schools.
Sec. 10-1 Chief of Police.
Sec. 10-2 Qualifications of policemen.
Sec. 10-3 Removal of policemen.
Sec. 10-4 Powers and duties of policemen.
Sec. 10-5 Political activity prohibited.
Sec. 10-6 Animal Control Officer.
Sec. 10-8 Fire districts and fire departments.
Sec. 10-9 Areas outside fire districts.
Sec. 10-10 Provisions for consolidation.
Sec. 10-11 Other functions of the Eighth Utilities District of Manchester.
Sec. 10-12 Town Fire Department.
Sec. 10-13 Chief of Town Fire Department.
Sec. 11-1 Establishment of Department.
Sec. 11-2 Duties of Department.
Sec. 11-3 Director of Public Works; powers and duties.
Sec. 11-4 Building Inspector Officer; Zoning Enforcement Officer; powers and duties.
Sec. 12-1 Water and sewer utilities.
Sec. 12-4 Superintendent of Water and Sewer Department.
Sec. 12-5 Budget and finances.
Sec. 12-14 Increased charges or rates for Town of Glastonbury.
Sec. 13-1 Director and employees.
Sec. 14-1 Recreation and Park Commission.
Sec. 14-2 Organization and duties.
Sec. 14-3 Management of parks and recreation.
Sec. 14-8 Exemption from taxation.
Sec. 15-1 Board of Health.
Sec. 15-2 Director of Health.
Sec. 15-3 Absence or inability of Director of Health.
Sec. 15-4 Powers and duties.
Sec. 15-5 Orders of Director of Health.
Sec. 16-2 Powers and duties of Library Board.
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Sec. 17-1 Planning and Zoning Commission.
Sec. 17-2 Plan of conservation and development.
Sec. 17-3 Subdivision of land.
Sec. 17-5 Public hearings on building lines.
Sec. 17-6 Benefit and damages.
Sec. 17-13 Payment of assessments.
Sec. 17-15 Zoning Board of Appeals.
Sec. 18-1 Town Attorney; powers and duties.
Sec. 19-1 General power of Town to issue bonds, notes and certificates of indebtedness.
Sec. 19-2 Purposes for which bonds, notes and certificates may be issued.
Sec. 19-3 Approval by Board of Directors.
Sec. 19-4 Formalities in execution.
Sec. 19-5 Duty of Board of Directors regarding bonds.
Sec. 19-6 Board of Directors; duty to lay special tax.
Sec. 20-1 Records to be evidence in all courts.
Sec. 20-2 Definitions and construction.
Sec. 20-6 Filing copies of regulations.
Sec. 20-7 Notice of special election.
Sec. 20-8 Existing laws and ordinances.
Sec. 20-9 Conflict of authority.


10.17.17 | IP Alert: Subject-Matter Eligibility Swallows Infringement Litigation?
Subject-Matter Eligibility Swallows Infringement Litigation?
On October 4, 2017, the U.S. Court of Appeals for the Federal Circuit heard oral arguments in a case that has been running for more than 10 years—Classen Immunotherapies, Inc., v. Elan Pharmaceuticals, Inc. (No. 17-1033). During that time, much has changed in the legal framework for subject-matter eligibility. Claims directed to a business method, such as the ones of Classen at issue, have been at the center of these legal changes. The issue in this appeal is whether the “safe harbor infringement exemption” of 35 U.S.C. § 271(e)(1) applies to acts that allegedly took place after approval by the U.S. Food and Drug Administration. Now, it appears the ultimate outcome of the case may turn on the subject-matter eligibility of Classen’s claims or the influence of the new legal framework of subject-matter eligibility on what can be considered infringing acts.
In 2001, Elan conducted a clinical study on the effect of food on the bioavailability of the marketed muscle relaxant Skelaxin® (metaxalone), for which Elan then held an approved New Drug Application (NDA). Elan used the study results in three ways: (1) it submitted the results to the FDA in a citizen petition, requesting that applicants requesting approval of generic metaxalone be required to provide both fed and fasting bioavailability data; (2) it submitted a supplemental New Drug Application (sNDA) to revise the Skelaxin® product label; and (3) it filed two patent applications.
Classen asserted U.S. Patent 6,584,472 against Elan in 2004, alleging that Elan’s clinical studies and three uses of the study results infringed the ’472 patent. Classen asserted claims directed to methods for creating and using data associated with a commercially available product; methods of establishing at least one commercial new use for a commercially available product; and kits comprising a product and documentation notifying a user of the product of at least one new adverse event relating to the product, where the new adverse event was obtained by the claimed methods.
Classen Immunotherapies v. King Pharmaceuticals, 466 F.Supp.2d 621, 625 (D. Md. 2006). Classen appealed. The Federal Circuit affirmed the judgment of non-infringement for the pre-sNDA submission acts, but remanded the case to the district court for consideration of Elan’s post-submission acts. Classen Immunotherapies v. Elan Pharmaceuticals, Inc. 786 F.3d 892 (Fed. Cir. 2015).
Classen asserted that Elan’s use of study results to file patent applications and marketing of Skelaxin with its revised label were post-submission infringing acts not shielded by § 271(e)(1). The district court found that all of the alleged infringing activities fell within the safe harbor and again granted Elan’s motion for summary judgment of non-infringement. Classen Immunotherapies v. Elan Pharmaceuticals, 210 F.Supp.3d 772 (D. Md. 2016). The present appeal followed.
During the argument, the parties focused on whether evidence of infringing acts had been submitted during trial and whether the safe harbor of § 271(e)(1) applied to such acts. But the panel did not seem to engage as much on these points as on the notion of applying certain steps of the claimed methods to the alleged infringing activities. The panel expressed concern that these steps seemed to be directed to abstract ideas. “Documenting inventorship? That’s an abstract idea. Why does that contribute to infringement of a claim? Analyzing data? How is that infringing?” Thus, the new legal framework of subject-matter eligibility seems to have infected the very idea of what acts can be considered to infringe.
This long-running case, which had been stayed for five years while Classen’s patent was under ex parte reexamination, illustrates the pitfalls of a lengthy stay in infringement suits based on patents that issued before the subject-matter eligibility revolution. Claims that were formerly considered subject-matter eligible are now routinely invalidated as directed to laws of nature, abstract ideas, or natural phenomena. During the oral argument, the Classen panel asked whether the defendant had made any motions attacking patent validity under Section 101. Such motions had been made, the panel was told, but the motions were held in abeyance while the safe harbor issue was appealed.
The court’s willingness to engage on the issue of subject-matter eligibility suggests that there may well be some unsolicited dicta on this issue when the court issues its opinion. And if the court eventually reaches the Section 101 motions, Classen and Elan can both add their names to the long list of litigants who went into court thinking they knew what their fight was about, only to have that fight swallowed by standards of subject-matter eligibility that did not exist when the case was filed.
Click here to download a recording of oral arguments in this case.
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text:
G.R. NOS. 175930-31 and G.R. NOS. 176010-11 - WILFRED A. NICOLAS v. HON. SANDIGANBAYAN, ET AL.
JOSE FRANCISCO ARRIOLA, Petitioner, v. THE HON. SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, Respondents.
In the present consolidated petitions for certiorari and prohibition with prayer for issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction, petitioners, Wilfred A. Nicolas (Nicolas) and Jose Francisco Arriola (Arriola), attribute to public respondent, Sandiganbayan, grave abuse of discretion in issuing its Resolutions of August 31, 20061 and December 7, 20062 denying their Demurrer to Evidence and their motions for reconsideration, respectively.
Nicolas and Arriola, former Commissioner and Deputy Commissioner, respectively, of the Economic Intelligence and Investigation Bureau (EIIB), stand charged before public respondent in Criminal Case Nos. 26267 and 26268,3 for violation of Section 36044 of the Tariff and Customs Code in the first case, and Section 3(e)5 of the Anti-Graft and Corrupt Practices Act or Republic Act (R.A.) No. 3019 in the second.
On April 16, 1999, a 40-footer container van bearing Serial Number TRIU-576078-1 and Plate Number PKN 290, which was suspected to be carrying undeclared goods, was seized by EIIB operatives under the command of Arriola, then chief of the Special Operations Group. The van was turned over for safekeeping to the Armed Forces of the Philippines Logistics Command (LOGCOM) compound in Quezon City on April 19, 1999.
On May 6, 1999, however, the van was released by military police from the LOGCOM compound to representatives of the EIIB and Trinity Brokerage. While the van was heading to the docks for shipment to the alleged consignee, it surreptitiously exited at the North harbor with its cargo. It has since been missing.
For purportedly allowing the release of the goods, Nicolas and Arriola were indicted for conspiring with one John Doe who took possession of the goods without proper documentation and payment of customs duties and taxes in the alleged amount of P656,950, thereby depriving the government of revenue.
Both Nicolas and Arriola pleaded not guilty to the charges.
The prosecution presented four witnesses: (1) Commodore George T. Uy (Uy), former commander of the LOGCOM whose signature appeared in the Authority for the withdrawal of the van; (2) Romeo Allan Rosales, chief of the Informal Entry Division-Manila International Container Port (IED-MICP); (3) Ruel Pantaleon (Pantaleon), chief of the Supply Section of the General Services Division (GSD) of the Bureau of Customs; and (4) Alejo Acorda (Acorda) of the LOGCOM who signed as a witness in the Certification of Withdrawal of the van.
Through its testimonial and documentary evidence, the prosecution attempted to show that the withdrawal of the van from the LOGCOM compound was based on a Notice of Withdrawal signed by Nicolas, and on the Authority for the withdrawal of the van which, though it appeared to have been issued by Uy, was not actually signed by him.
The prosecution likewise attempted to establish that the documents, including Official Receipts allegedly presented to show payment of customs duties and taxes, were all spurious.
The rest of the Exhibits for the prosecution, being mere photocopies, were not admitted by public respondent. The excluded evidence consisted of Mission Order No. 04-105-99 dated April 19,1999 for the inventory of the contents of the van (Exhibit "B"); the Inventory List of the van (Exhibits "C" to "C-3"); the Notice of Withdrawal dated May 6, 1999 (Exhibit "D"); and portions of No. 4 Ledger Series-99, the official logbook of the IED-MICP (Exhibits "J-3" and "J-4").
Respecting the first Information, petitioners' respective Demurrer maintained that the evidence admitted by public respondent failed to identify and prove that they were the perpetrators of the crimes charged, for there was no showing that they caused, approved or acted in any manner relative to the release of the goods.
Petitioners went on to contend that none of the documentary evidence bore their names or signatures. And neither was there any testimonial evidence that they acted towards the release of the shipment.
Additionally, petitioners contended that the shipment was not shown to be imported, or for export, or otherwise subject of coastwise trade as to be subject to customs duties; and that even assuming that customs duties were due, there was no evidence that the same were not paid.
Regarding Import Entry Declaration Nos. 5000-99, 5001-99 and 5002-99 which, the prosecution maintained, were used for the release of the goods but were not processed through the IED-MICP, petitioners contended that the same were not shown to have a bearing on the shipment or to their indictment. These import entry declarations were not even presented as documentary evidence, they added.
On the prosecution's submission that customs duties were not paid, petitioners' contended that the same is visited by a similar failure to link the allegedly fraudulent Official Receipt18 Nos. 75071606, 7501609, and 75071603 to the cargo.
Respecting the second Information, petitioners' Demurrer maintained that the prosecution failed to establish each and every material element thereof.
In the main, petitioners thus argued that the prosecution was not only unable to show that they were the perpetrators of the crimes charged or that they committed any prohibited act; it was also not able to prove that undue injury was caused the government.
Finally, as to both Informations, petitioners submitted that the existence of conspiracy between them and/or John Doe was not established.
To petitioners' motions to File Demurrer to Evidence19 and their Demurrer to Evidence,20 the prosecution filed a Comment/Opposition.
By the first questioned Resolution of August 31, 2006, public respondent denied petitioners' respective Demurrer to Evidence. In denying the Demurrer, public respondent held that, inter alia, the prosecution was able to establish that the goods apprehended by the EIIB for non-payment of customs duties were deposited at the LOGCOM in Quezon City and while there they were inventoried and found to be computer spare parts and not "parts of a rock crusher" as they were allegedly originally declared; and that on May 6, 1999, the goods were withdrawn from the LOGCOM compound on the strength of a Notice of Withdrawal purportedly signed by then LOGCOM Commander Uy who did not actually issue it as he was then in the United States on official travel nor by the then deputy LOGCOM commander, one Colonel Romero.
By the second questioned Resolution of December 7, 2006,25 public respondent denied petitioners' motions for reconsideration.
As stated early on, petitioners jointly ascribe grave abuse of discretion to public respondent for denying their Demurrer given what they submit is the absence or lack of evidence to sustain the cases against them.
Nicolas additionally submits that public respondent grievously abused its discretion when it disregarded this Court's December 16, 2004 Decision in G.R. No. 15466826 "Wilfred A. Nicolas v. Aniano A. Desierto," in which he was absolved of administrative liability for gross neglect of duty and dishonesty arising from the same incident subject of the criminal charges against him.
Invoking the doctrines of res judicata and stare decisis, Nicolas contends that public respondent particularly failed to abide by this Court's ruling in the said administrative case that he had acted in good faith in relying upon the apparently valid and genuine documents submitted to him when he requested for the release of the van from the LOGCOM compound.
Before delving on the substantive issues, this Court must first address the propriety of the availment of a petition for certiorari and prohibition in assailing a denial of a demurrer to evidence. Then, too, it must determine if the present petitions have been rendered moot and academic by the continuation of the trial - for reception of evidence for the defense. As to the latter issue, the Court notes that public respondent had cancelled the initial presentation of defense evidence upon the filing of the present petitions to afford the Court time to act on petitioners' applications for TRO or Writ of Preliminary Injunction.
By Order given in open court on March 27, 2007, public respondent subsequently cancelled and reset the hearing scheduled on even date and on March 28, 2007.31 It directed the initial presentation of evidence for Arriola on June 27, 2007 if no TRO was issued by this Court.
The Court did not issue a TRO or a Writ of Preliminary Injunction to stop public respondent from continuing the proceedings in the cases. There is no information if the defense has started or concluded the presentation of its evidence.
Be that as it may, the continuation of the trial should not stand in the way of this Court's ruling on the present petitions. Suffice it to stress that should the denial of petitioners' Demurrer be found to be tainted with grave abuse of discretion, whatever proceedings were conducted before public respondent during the pendency of the present petitions are void.
Such order, being merely interlocutory, is not appealable; neither can it be the subject of a petition for certiorari .34 The rule admits of exceptions, however. Action on a demurrer or on a motion to dismiss rests on the sound exercise of judicial discretion.35 In Tadeo v. People,36 this Court declared that certiorari may be availed of when the denial of a demurrer to evidence is tainted with "grave abuse of discretion or excess of jurisdiction, or oppressive exercise of judicial authority." And so it did declare in Choa v. Choa37 where the denial is patently erroneous.
Did public respondent commit grave abuse of discretion in denying petitioners' Demurrer? The Court finds that it did.
Sec. 15. Demurrer to evidence. - After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused with prior leave of court.
If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion without the express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.
With respect to petitioners' indictment for violation of Section 3604 of the Tariff and Customs Code, the prosecution needed to prove that: (1) at the time material to the case, petitioners were officials or employees of the Bureau of Customs or of any other agency of the government charged with the provisions of the Code; and (2) they either conspired or colluded with another or others to defraud the customs revenue or otherwise violate the law (paragraph d), or willfully made an opportunity for any person to defraud the customs revenue or failed to do any act with intent to enable any person to defraud the customs revenue (paragraph e).
From the testimonial and documentary evidence of the prosecution admitted by public respondent, the Court gathers that apart from establishing that petitioners were government officials, the prosecution was only able to establish that: (1) the van was turned over to the LOGCOM on April 19, 1999; (2) the same van was withdrawn from the LOGCOM compound on May 6, 1999; (3) the signature appearing above the name of prosecution witness, then LOGCOM commander Uy, in the Authority for the withdrawal of the van was not his; (4) Import Entry Nos. 5000-99 to 5002-99 were not filed with the IED-MICP; and (5) Bureau of Customs O.R. Nos. 75071606, 7501609, and 75071603 are spurious.
There is no competent or sufficient evidence of particular overt acts that would tend to show that petitioners colluded with each other or with another person or others to defraud the customs revenue or to otherwise violate the law, or that they willfully made it possible for John Doe to defraud the customs revenue.
Not one of the prosecution witnesses identified, mentioned or even alluded to either of petitioners as having personally interceded or been present during the release of the cargo from the LOGCOM compound, or testified as to any act or omission that may be construed to be in furtherance of the alleged conspiracy to defraud the customs revenue.
The Notice of Withdrawal (Exhibit "D"), the only document bearing the name and signature of petitioner Nicolas, was not even admitted by respondent court.
Respecting the purported failure of petitioners to note the fraudulent nature of O.R. Nos. 75071606, 7501609 and 75071603, the Court notes the testimony of Pantaleon, then chief of the Supply Section of the GSD of the Bureau of Customs, which is quoted in the Petition44 of Nicolas, and which merited no refutation from the prosecution in its Consolidated Comment.
Thus, during cross-examination, Pantaleon stated that only the Printing Office, his Division chief and he were privy to the formula used in the printing of BC Forms No. 38, and that other government offices including the EIIB have not been informed of this formula.
Q: Okay. Now, Mr. Witness, who were the persons to whom you divulged this formula?
A: Sa akin po at saka sa Hepe ng Division na nagretiro. To me and to the Chief Division that [sic] ha[s] retired.
Q: Aside from the two (2) of you, nobody knows the formula?
A: The printing office, Sir.
Q: So, you did not inform the EIIB in 1999 about this formula?
A: Hindi po. No, Sir.
Q: So they wouldn't know by just looking at the official receipt whether the official receipt is fake or not because they do not know the formula, would that be a fair statement?
A: They don't know the series, Sir.
Q: Now my question is, you wouldn't know whether the official receipts would be fake?
Clearly then, petitioners were not in a position to detect any fraud.
x x x. Under its standard operating procedure, [the EIIB] normally did the inventory in the presence of representatives of the AFP Logistics Command (which was the depository of apprehended container vans), the Bureau of Customs, the broker or importer, and the Commission on Audit. If there was any irregularity, only then would the EIIB turn over the cargo to the Bureau of Customs.
The prosecution attempted to build its case for violation of R.A. No. 3019 upon the theory that Nicolas and Arriola, as EIIB commissioner and deputy commissioner, respectively, and in connection with their official duties as such, were responsible for the release of the goods from the LOGCOM compound without the actual payment of customs duties and taxes, thereby causing injury to the government.
The prosecution proffered that the withdrawal of the van from the LOGCOM based on what turned out to be fictitious documents and the subsequent loss of its cargo, which they attributed to petitioners, were motivated by manifest partiality, evident bad faith or gross inexcusable neglect.
The evidence for the prosecution failed to sustain its case, however. In addition to this Court's earlier observations about the missing links in the prosecution's evidence, it failed to show by what particular acts petitioners had discharged their functions with manifest partiality, evident bad faith or gross inexcusable neglect.
Simply alleging each or all of these methods is not enough to establish probable cause, for it is well settled that allegation does not amount to proof. Nor can we deduce any or all of the modes from mere speculation or hypothesis since good faith on the part of the petitioner as with any other person is presumed. The facts themselves must demonstrate evident bad faith which connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will.
This Court is not unmindful of its rulings that the dismissal of an administrative case does not bar the filing of a criminal prosecution for the same or similar acts subject of the administrative complaint and that the disposition in one case does not inevitably govern the resolution of the other case/s and vice versa.55 The applicability of these rulings, however, must be distinguished in the present cases.
In Ocampo v. Office of the Ombudsman56 and the other cases57 cited by the prosecution in its Consolidated Comment,58 it was the dismissal of the criminal cases that was pleaded to abate the administrative cases filed against the therein petitioners.
Where, as in this case, the administrative complaint was dismissed for failing to satisfy the degree of proof which is merely substantial evidence, a fortiori the criminal case based on the same facts and evidence cannot but falter and fall against the highest quantum of proof - proof beyond reasonable doubt.
In fine, absent the element of evident bad faith and gross neglect of duty, not to mention want of proof of manifest partiality on the part of Nicolas, the graft case against him cannot prosper.
Like in the case of Nicolas, no act or conduct on the part of Arriola was established that would tend to show that he had acted in evident bad faith, manifest partiality or gross inexcusable negligence in the performance of his functions, as then deputy commissioner of the EIIB and head of the Special Operations Group, relative to the release of the van.
Turning once more to the evidence in the present criminal cases, no documentary or testimonial evidence linking Arriola to the withdrawal of the van, much more, the loss of the goods it contained, is appreciated.
To stress, not one of the documents admitted for the prosecution contained Arriola's name, initials or signature. Neither did any of the prosecution witnesses, not even Acorda who was present during the deposit and withdrawal of the van from the LOGCOM compound, mention or refer to Arriola in any manner or testify on his probable complicity or involvement in the crimes charged. For that matter, nothing in the entire testimony of Acorda62 supports the submission that it was upon Arriola's request that the van was withdrawn from the LOGCOM.
A : For us, sir, when there is a request from the EIIB that the property be released, and if it is approved by our boss, it will be released, sir.
Even granting arguendo Arriola made a recommendation for the withdrawal of the van as the prosecution suggested, this alone does not prove that he acted in bad faith. The presumption of law being in favor of good faith, it was incumbent upon the prosecution to prove bad faith.
Even on the purported spurious receipts that prosecution witness Pantaleon testified on, there is no showing that Arriola was instrumental or participated in their preparation or that he knew of their fraudulent nature.
It bears emphasis that references to petitioner Arriola in the Decision on the administrative case against Nicolas were made only for the purpose of determining the culpability of the latter. These statements, therefore, are in no way binding on Arriola.
Given that the evidence presented by the prosecution against petitioners does not prima facie prove petitioners' culpability beyond reasonable doubt, the burden of evidence did not shift to the defense. The Court thus finds that public respondent gravely abused its discretion in denying their Demurrer to Evidence.
WHEREFORE, the consolidated Petitions for certiorari and prohibition are GRANTED. The Sandiganbayan's assailed Resolutions dated August 31, 2006 and December 7, 2006 are ANNULLED and SET ASIDE for having been issued with grave abuse of discretion. The separate Demurrer to Evidence of petitioners are accordingly GRANTED and the cases against them DISMISSED.
* "Wilfredo" in some pleadings.
1 Penned by Justice Godofredo L. Legaspi, chairperson of the Third Division of the Sandiganbayan and concurred in by Justices Efren N. De La Cruz and Norberto Y. Geraldez. Rollo, G.R. NOS. 175930-31, pp. 125 - 132; rollo, G.R. NOS. 176010-11, pp. 39-46.
2 Id. at 133-134; id. at 66-67.
3 Similarly entitled "People of the Philippines v. Wilfred A. Nicolas, J. Francisco Arriola and John Doe."
5 Sec. 3. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefit, advantage, preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
6 Rollo, G.R. NOS. 176010-11, pp. 101-112.
8 Rollo, G.R. NOS. 175930-31, p. 291; rollo, G.R. NOS. 176010-11, p. 133.
9 Rollo, G.R. NOS. 176010-11, p. 113.
17 Rollo, G.R. NOS. 175930-31, pp. 292-348; rollo, G.R. NOS. 176010-11, pp. 47-51. Dated May 12, 2006 and May 3, 2006 for petitioners Nicolas and Arriola, respectively.
18 BC Form No. 38.
19 Rollo, G.R. NOS. 176010-11, pp. 134-142. Dated May 17, 2006.
20 Rollo, G.R. NOS. 175930-31, pp. 349-396. Dated September 19, 2006.
21 Rollo, G.R. NOS. 175930-31, p. 131; rollo, G.R. NOS. 176010-11, p. 45. Resolution of August 31, 2006.
22 Id. at 360-396; id. at 68-81.
23 Rollo, G.R. NOS. 175930-31, pp. 397-408.
24 Id. at 409-427; rollo, G.R. NOS. 176010-11, pp. 171-181. Dated November 24, 2006 and November 9, 2006 for petitioners Nicolas and Arriola, respectively.
25 Rollo, G.R. NOS. 175930-31, pp. 133-134; rollo, G.R. NOS. 176010-11, pp. 66-67.
27 Rollo, G.R. NOS. 175930-31, pp. 168-173.
31 Rollo, G.R. NOS. 176010-11, p. 428.
32 Madrid v. Court of Appeals, 388 Phil. 366, 400 (2000), citing People v. Comesario, 366 Phil. 62, 68 (1999).
33 David v. Rivera, 464 Phil. 1006, 1013-1014 (2004); Ong v. People, 396 Phil. 546, 554(2000); Cruz v. People, 363 Phil. 156, 161 (1999).
34 David v. Rivera, supra; Tadeo v. People, 360 Phil. 914, 919 (1998). Vide Cruz v. People, supra; Katigbak v. Sandiganbayan, 453 Phil. 515, 535-536 (2003).
35 Tan v. Court of Appeals, 347 Phil. 320, 329 (1997); Bernardo v. Court of Appeals, 344 Phil. 335, 346 (1997).
36 Tadeo v. People, supra note 34.
37 441 Phil. 175, 182-183 (2002), citing Cruz v. People, supra note 33.
38 Soriquez v. Sandiganbayan, G.R. No. 153526, October 25, 2005, 474 SCRA 222, 228; Rivera v. People of the Philippines, G.R. No. 163996, June 9, 2005, 460 SCRA 85, 91; Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999).
39 Gutib v. Court of Appeals, supra.
40 Supra; Katigbak v. Sandiganbayan, supra note 34.
41 Farolan, Jr. v. Court of Tax Appeals, G.R. No. 42204, January 21, 1993, 217 SCRA 298, 304, cited in Remigio v. Sandiganbayan, 424 Phil. 859, 869 (2002).
42 People v. LarraÃ±aga, 66 Phil. 324, 388-389(2004); People v. Manuel, G.R. NOS. 93926-28, July 28, 1994, 234 SCRA 532, 542; Orodio v. Court of Appeals, G.R. No. L-57579, September 13, 1988, 165 SCRA 316, 323; Magsuci v. Sandiganbayan, 310 Phil. 14, 19 (1995).
43 Transcript of Stenographic Notes (TSN), March 8, 2005, pp. 19-20; rollo, G.R. NOS. 176010-11, pp. 535-536.
44 Rollo, G.R. NOS. 175930-31, pp. 66-67.
45 Id., referring to the TSN of April 7, 2005, pp. 25-26.
48 Peralta v. Desierto, G.R. No. 153152, October 19, 2005, 473 SCRA 322, 332; Sistoza v. Desierto, 437 Phil. 117, 130 (2002).
53 Supra note 26 at 166.
55 Saludo, Jr. v. Court of Appeals, G.R. No. 121404, May 3, 2006; De La Cruz v. Department of Education, Culture and Sports, 464 Phil. 1033, 1049 (2004); AÃ±onuevo, Jr. v. Court of Appeals, 458 Phil. 532, 541(2003); Ocampo v. Office of the Ombudsman, 379 Phil. 21, 27 (2000).
57 Office of the Court Administrator v. Matas, 317 Phil. 9 (1995); Tan v. Commission on Elections, G.R. No. 112093, October 4, 1994, 237 SCRA 353.
58 Rollo, G.R. NOS. 175930-31, pp. 452-477; rollo, G.R. NOS. 176010-11, pp. 397-427.
60 Paredes, Jr. v. Hon. Sandiganbayan, 322 Phil. 709, 730 (1996); Tecson v. Sandiganbayan, 376 Phil. 191 (1999). No administrative case was involved in Ong v. People (supra note 33); hence, the citation of the case was inappropriate.
61 Tala Realty Services Corp. v. Banco Filipino, 389 Phil. 455, 461-462 (2000); Negros Navigation Co., Inc. v. Court of Appeals, 346 Phil. 551, 563 (1997); Paredes, Jr. v. Sandiganbayan, supra note 55 at 730-731.
62 TSN, September 12, 2005, pp. 4-64; rollo, G.R. NOS. 176010-11, pp. 455-513.
63 Id. at 60; id. at 511.

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