Habitual criminal, defined; procedure for determination; hearing; penalties; effect of pardon.
(c) If a greater punishment is otherwise provided by statute, the law creating the greater punishment shall govern.
(2) When punishment of an accused as a habitual criminal is sought, the facts with reference thereto shall be charged in the indictment or information which contains the charge of the felony upon which the accused is prosecuted, but the fact that the accused is charged with being a habitual criminal shall not be an issue upon the trial of the felony charge and shall not in any manner be disclosed to the jury. If the accused is convicted of a felony, before sentence is imposed a hearing shall be had before the court alone as to whether such person has been previously convicted of prior felonies. The court shall fix a time for the hearing and notice thereof shall be given to the accused at least three days prior thereto. At the hearing, if the court finds from the evidence submitted that the accused has been convicted two or more times of felonies and sentences imposed therefor by the courts of this or any other state or by the United States, the court shall sentence such person so convicted as a habitual criminal.
(3) If the person so convicted shows to the satisfaction of the court before which the conviction was had that he or she was released from imprisonment upon either of such sentences upon a pardon granted for the reason that he or she was innocent, such conviction and sentence shall not be considered as such under this section and section 29-2222.
Laws 2006, LB 1199, § 14.
A sentence of 10 to 15 years' imprisonment to be served consecutively to any sentence currently served, with a mandatory 10-year term, is not a cruel and unusual punishment of one who has been adjudged to be a habitual criminal under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
A sentence of 10 to 15 years' imprisonment to be served consecutively to any sentence currently served, with a mandatory 10-year term, is not an excessive sentence of one who has been adjudged to be a habitual criminal under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
Neither the state nor the federal Constitution requires the State to prove the fact of prior convictions beyond a reasonable doubt for purposes of sentence enhancement under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
This section does not deprive one of fundamental fairness, equal protection, or federal due process of law. Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987).
The habitual criminal statute is not unconstitutional as applied. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).
Only errors which would make a conviction void or voidable under either the state or federal constitutions are cognizable in a post conviction relief action. Therefore, defendant could raise neither prejudice from remarks by a prosecution witness nor the sufficiency of evidence offered to establish his identity at the habitual criminal hearing on post conviction review. Nor could he challenge the voluntariness of a guilty plea which led to one of the prior convictions offered at the habitual criminal hearing where he failed to challenge it at the trial level. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).
Habitual criminal statute does not violate constitutional guarantees prohibiting cruel and unusual punishment nor does sentencing defendant hereunder subject him to double jeopardy. State v. Goodloe, 197 Neb. 632, 250 N.W.2d 606 (1977).
In construing habitual criminal act, court sustains a sensible interpretation, within constitutional requirements, effectuating the object of the Legislature rather than literal interpretation rendering absurd or unjust results. State v. Nance, 197 Neb. 257, 248 N.W.2d 339 (1976).
This act has been held valid on numerous occasions under Constitutions of the United States and this state. State v. Fowler, 193 Neb. 420, 227 N.W.2d 589 (1975).
This act does not contravene constitutional prohibition against cruel and unusual punishment, nor provide for punishment of a status. State v. Martin, 190 Neb. 212, 206 N.W.2d 856 (1973).
This section does not violate constitutional guarantees of due process and equal protection; habitual criminality is not a crime, but increases the punishment because of defendant's past conduct. State v. Losieau, 184 Neb. 178, 166 N.W.2d 406 (1969).
Habitual Criminal Act is constitutional. State v. Hoffman, 181 Neb. 356, 148 N.W.2d 321 (1967).
Habitual Criminal Act is constitutional, as it does not set out a distinct crime, but provides that repetition of criminal conduct justifies heavier penalties. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).
Where state seeks to have defendant punished under Habitual Criminal Act, it is proper to allege and prove prior convictions. Section is not ex post facto even though prior conviction occurred before its enactment. Taylor v. State, 114 Neb. 257, 207 N.W. 207 (1926).
Evidence held sufficient to support sentence received under Nebraska's habitual criminal statute, and not violative of the eighth amendment protection against cruel and unusual punishment on grounds of disproportionality, under the facts of this case. Fowler v. Parratt, 682 F.2d 746 (8th Cir. 1982).
The Nebraska statute is not an unconstitutional separation of powers. Pierce v. Parratt, 666 F.2d 1205 (8th Cir. 1981).
Habitual criminal statute held not unconstitutional under Eighth Amendment prohibition of cruel and unusual punishment merely because infrequently applied. Brown v. Parratt, 560 F.2d 303 (8th Cir. 1977).
The doctrine of stare decisis precludes the U.S. District Court from overruling two decisions of the 8th Circuit Court of Appeals holding that the Nebraska habitual criminal statute is not unconstitutional on the theory that it vests unreviewable sentencing authority in the prosecuting attorney. Goodloe v. Parratt, 453 F.Supp. 1380 (D. Neb. 1978).
The imposition of concurrent terms of ten years imposed upon a defendant who was convicted of willful reckless driving and operating a motor vehicle to avoid arrest, and who had been adjudged to be an habitual criminal, does not constitute cruel and unusual punishment. Goodloe v. Parratt, 453 F.Supp. 1380 (D. Neb. 1978).
Fact that only fourteen out of one hundred four of those eligible in county were charged as habitual criminals and only three determined to be such did not demonstrate application of statute was arbitrary and thus cruel and unusual punishment. Brown v. Parratt, 419 F.Supp. 44 (D. Neb. 1976).
Habitual criminal statute is not unconstitutional on grounds it gives county attorney selectivity in applying it, nor because it punishes a status rather than an act. Martin v. Parratt, 412 F.Supp. 544 (D. Neb. 1976).
A habitual criminal who is convicted of several felonies as the result of a multicount information must be sentenced on each conviction as a habitual criminal, even though the allegation with respect to his status as a habitual criminal is made with respect to only one charge. State v. Van Ackeren, 234 Neb. 535, 451 N.W.2d 707 (1990).
The rule announced in State v. Ellis, 214 Neb. 172, 333 N.W.2d 391 (1983), is not to be applied retroactively. Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987).
The Nebraska habitual criminal statute is not a separate offense but, rather, provides an enhancement of the penalty for the crime committed, with a minimum sentence of 10 years and a maximum sentence of 60 years for each conviction committed by one found to be a habitual criminal, even though, absent a conviction as a habitual criminal, the minimum or maximum sentence might be less. State v. Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984).
An offense which is a felony solely because of repetition cannot be counted as a felony for purposes of this statute. State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980).
In order for habitual criminal enhancement provisions to apply to an offense, it makes no difference whether the two prior sentences were to be served consecutively or concurrently, nor is it required that there be a time interval between conviction and commitment for the first offense and commission of the second offense. State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979).
Sentences should be in proportion to seriousness of offenses and offenders who offer greatest menace deserve greater punishment. State v. King, 196 Neb. 821, 246 N.W.2d 477 (1976).
This section makes no distinctions between malum in se and malum prohibitum offenses and no exceptions based on age of defendant at time of prior conviction. State v. Howard, 194 Neb. 521, 233 N.W.2d 573 (1975).
Sentence of twelve to fifteen years being well within statutory terms of ten to sixty years was not erroneous as excessive. State v. Silvacarvalho, 193 Neb. 447, 227 N.W.2d 602 (1975).
In view of defendant's past record, sentence of twenty to thirty years was not excessive. State v. Gaston, 193 Neb. 259, 226 N.W.2d 355 (1975).
The essential allegations in informations under this act are that defendant has been (1) twice previously convicted of crime, (2) sentenced, and (3) committed to prison for terms not less than one year each. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
Subsequent habitual criminal sentence invalid where valid sentence for particular crime had been imposed. State v. Brewer, 190 Neb. 667, 212 N.W.2d 90 (1973).
Separate penalty may not be imposed upon finding the defendant is an habitual criminal. State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298 (1971).
Where act committed prior to amendment of statute increasing maximum penalty from twenty to sixty years it was not prejudicial error to advise defendant that he was subject to imprisonment for sixty years since defendant received a ten-year sentence which was minimum under both old and new acts. State v. McGhee, 184 Neb. 352, 167 N.W.2d 765 (1969).
Habitual Criminal Act does not create a new offense but provides a greater penalty for repetition of criminal conduct. State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428 (1965); Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).
The charge of being a habitual criminal may be set out in a separate count in the information. Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710 (1960).
Habitual Criminal Act does not create a new and separate criminal offense for which a person may be separately convicted. Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403 (1947).
Habitual Criminal Act does not set out a distinct crime, but provides that repetition of criminal conduct aggravates the offense and justifies heavier penalties. Jones v. State, 147 Neb. 219, 22 N.W.2d 710 (1946); Kuwitzsky v. O'Grady, 135 Neb. 466, 282 N.W. 396 (1938).
The State must prove all of the essential elements of the offense charged beyond any reasonable doubt. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).
Primary and significant factor under this statute is a felony conviction rather than the sentence, and age of defendant at time of his prior conviction under Nebraska law has no relevance. Kennedy v. Sigler, 397 F.2d 556 (8th Cir. 1968).
Enhancement under the habitual criminal statute did not constitute an impermissible double enhancement where the trigger offense of flight to avoid arrest was enhanced from a misdemeanor to a felony based on the defendant's willful, reckless operation of a motor vehicle, rather than prior criminal conduct. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
The use of a prior conviction to establish status as a felon and then enhance a sentence does not constitute impermissible double enhancement. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
A Nebraska court may use a prior conviction from another state for sentence enhancement under this section even though the conviction may not be used for enhancement in that other state. State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007).
To prove a prior conviction for enhancement purposes, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year; (2) the trial court rendered a judgment of conviction for each crime; and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel or had knowingly and voluntarily waived representation for those proceedings. State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
The existence of a prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities. Specifically, in a proceeding for an enhanced penalty, the State has the burden to show that the records of a defendant's prior felony convictions, based on pleas of guilty, affirmatively demonstrate that the defendant was represented by counsel or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
The determination of whether a defendant has prior convictions that may increase the penalty for a crime beyond the prescribed statutory maximum is not a determination that must be made by the jury. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
The State has the burden to prove the fact of prior convictions by a preponderance of the evidence. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
The trial court determines the fact of prior convictions based upon the preponderance of the evidence standard. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
Subsection (1)(a) of this section provides the specific enhancement mechanism where the current conviction is for a first degree sexual assault and the defendant has two or more prior felony convictions, at least one of which is for first degree sexual assault. State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).
Prior convictions sought to be used for penalty enhancement under the habitual criminal statute cannot be attacked in a separate proceeding. State v. Kuehn, 258 Neb. 558, 604 N.W.2d 420 (2000).
To prove a prior conviction for enhancement purposes, the State need only show that at the time of the prior conviction defendant had, or waived, counsel. State v. Green, 240 Neb. 639, 483 N.W.2d 748 (1992); State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989).
This section requires that the prior convictions relied upon by the State, except for the first conviction, be for offenses committed after each preceding conviction, and all such prior convictions must precede the commission of the principal offense. State v. Wyatt, 234 Neb. 349, 451 N.W.2d 84 (1990); State v. Lieberman, 222 Neb. 95, 382 N.W.2d 330 (1986).
A challenge to a prior conviction may only be raised in a direct appeal or in a separate proceeding commenced for the express purpose of setting aside the judgment alleged to be invalid, and not in habitual criminal proceedings. State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989).
Two or more prior convictions arising out of the same set of circumstances may not be used to impose an enhanced penalty. State v. Lopez, 215 Neb. 65, 337 N.W.2d 130 (1983).
In order to warrant an enhanced penalty under this section, the prior convictions, except the first, must be for offenses committed after each preceding conviction, and all such prior convictions must precede the commission of the principal offense. State v. Ellis, 214 Neb. 172, 333 N.W.2d 391 (1983), overruling State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979).
This section does not require that convictions and commitments considered in determining whether or not an individual is a habitual criminal necessarily must set a specific minimum incarceration of at least one year; rather, it only mandates exclusion of convictions and commitments where there occurred a pardon based upon innocence and the original commitment therein was for at least one year. Only in situations where such a pardon has occurred is the conviction and commitment disqualified from consideration in determining whether a defendant is a habitual criminal. State v. Luna, 211 Neb. 630, 319 N.W.2d 737 (1982).
The validity of a prior conviction offered to enhance punishment must be challenged at the habitual criminal hearing and failure to challenge it at that time waives the issue. Thus, the prior conviction may not be attacked in a petition under the Post Conviction Act. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).
Sentence as habitual criminal set aside where information failed to charge the requisite two prior convictions and sentences. State v. Davis, 199 Neb. 165, 256 N.W.2d 678 (1977).
Prior offenses are not limited to first conviction under Habitual Criminal Act. State v. Losieau, 182 Neb. 367, 154 N.W.2d 762 (1967).
Information which charges two prior convictions and prison sentences for terms of not less than one year each, and charges a felony, meets requirements of this act. Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).
Generally, one deemed to be a habitual criminal shall be punished by imprisonment for a mandatory minimum term of 10 years and a maximum term of not more than 60 years upon each conviction for a felony committed subsequent to the prior convictions used as the basis for the habitual criminal charge. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003).
Under subsection (1) of this section, a defendant convicted of a felony may be deemed a habitual criminal if the defendant has been (1) twice previously convicted of a crime, (2) sentenced, and (3) committed to prison for terms of not less than 1 year each. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003).
One found to be a habitual criminal may not be placed on probation. State v. Flye, 245 Neb. 495, 513 N.W.2d 526 (1994).
Prisoner cannot attack by habeas corpus increased punishment imposed under Habitual Criminal Act upon ground that he was mentally incompetent at time of former conviction. McAvoy v. Jones, 149 Neb. 613, 31 N.W.2d 740 (1948).
Party pleading guilty under this section is not entitled to release on habeas corpus where court imposing sentence had jurisdiction of the offense and of the person of the party sentenced hereunder. Alexander v. O'Grady, 137 Neb. 645, 290 N.W. 718 (1940).
A prima facie case of a prior, counseled conviction for enhancement purposes is established by producing appropriate record evidence which discloses that at a critical point in the proceedings—arraignment, trial, conviction, or sentencing—the defendant had either intelligently and voluntarily waived counsel or in fact was represented by counsel at one of those times. State v. Britt, 1 Neb. App. 245, 493 N.W.2d 631 (1992).
The language of subsection (1) of this section does not require that all convictions enhanced pursuant to this section be served consecutively to each other. Unless the offense for which the defendant was convicted requires the sentence to run consecutively to other convictions, the court retains its discretion to impose a concurrent sentence. State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
This section does not require an enhanced penalty to be served consecutively to any other sentence imposed. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014).
Where section 28-507 did not require a mandatory minimum sentence, the fact that the punishments for crimes of burglary were enhanced under this section did not require the enhanced mandatory minimum penalties to be served consecutively. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014).
Good time credit under subsection (1) of section 83-1,107 does not apply to mandatory minimum sentences imposed on habitual criminals pursuant to subsection (1) of this section. Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).
Double jeopardy principles do not apply to habitual criminal enhancement proceedings under this section. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002); State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).
A hearing is required to ascertain whether a defendant qualifies as a habitual criminal. State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).
This statute does not prescribe a separate offense but, rather, provides an enhancement of penalty for each conviction committed by one found to be a habitual criminal. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981).
When a person found guilty of a substantive crime as well as being a habitual criminal is improperly sentenced, both sentences must be set aside and the case remanded for proper sentencing. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981).
A court is authorized to order a presentence investigation in any case, and it is proper to consider defendant's criminal record in passing sentence. State v. Bruns, 200 Neb. 612, 265 N.W.2d 210 (1978).
Where defendant resentenced to consecutive terms of imprisonment following vacation of prior concurrent sentences, held not an abuse of judge's discretion. State v. Davis, 200 Neb. 557, 264 N.W.2d 198 (1978).
Post conviction relief denied defendant sentenced to twenty to thirty years on a drug charge as an habitual criminal. State v. Bartlett, 199 Neb. 471, 259 N.W.2d 917 (1977).
Newspaper item citing the charges, including an habitual criminal action, pending against defendant prior to trial held not prejudicial to defendant in the absence of any evidence that the jurors knew of the article. State v. Addison, 198 Neb. 166, 251 N.W.2d 895 (1977).
Participation in a hearing on an habitual criminal charge without objection is a waiver of the notice required by this section, and a plea of nolo contendere or of guilty admits former convictions charged in information. State v. Graham, 192 Neb. 196, 219 N.W.2d 723 (1974).
On direct appeal from void sentence hereunder, Supreme Court has power to remand for a lawful sentence where the accused invoked appellate jurisdiction for correction of errors. State v. Gaston, 191 Neb. 121, 214 N.W.2d 376 (1974).
Plea of guilty or nolo contendere to information charging former convictions confesses them and no hearing for proof thereof is required hereunder. State v. Youngstrom, 191 Neb. 112, 214 N.W.2d 27 (1974).
Participation in hearing without objection was waiver of notice of hearing required by this section. State v. Huffman, 185 Neb. 417, 176 N.W.2d 506 (1970).
Definition of who is an habitual criminal stated. Huffman v. Sigler, 182 Neb. 290, 154 N.W.2d 459 (1967).
Evidence was sufficient to show that defendant was an habitual criminal. State v. Bundy, 181 Neb. 160, 147 N.W.2d 500 (1966).
Imposition of sentence as an habitual criminal was sustained. State v. Sedlacek, 178 Neb. 322, 133 N.W.2d 380 (1965).
During the trial the fact that the defendant is charged with being a habitual criminal shall not be disclosed to the jury. State v. Losieau, 174 Neb. 320, 117 N.W.2d 775 (1962).
Time in which to institute error proceedings in Supreme Court does not run pending hearing on status of defendant as a habitual criminal. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).
Defendant was properly convicted as an habitual criminal. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951).
Imposition of increased penalty for subsequent offense is for court and not for jury. Haffke v. State, 149 Neb. 83, 30 N.W.2d 462 (1948).
"Good time" under section 83-1,108 should not be applied against a mandatory minimum sentence imposed under subsection (1) of this section. Hurbenca v. Nebraska Dept. of Corr. Servs., 16 Neb. App. 222, 742 N.W.2d 773 (2007).
A defendant sentenced as a habitual criminal to the mandatory 10-year sentence under this section is not entitled to good time credit pursuant to section 83-1,110 on his or her mandatory minimum sentence. Ebert v. Nebraska Dept. of Corr. Servs., 11 Neb. App. 553, 656 N.W.2d 634 (2003).
The phrase "mandatory minimum term of ten years" as used in this section means that a sentence served by a habitual criminal is not to be less than 10 years' imprisonment. Ebert v. Nebraska Dept. of Corr. Servs., 11 Neb. App. 553, 656 N.W.2d 634 (2003).
The challenge to a prior plea-based conviction that a defendant can raise in a habitual criminal allegation is limited to whether the defendant had or waived counsel. All other challenges constitute an impermissible collateral attack on the judgment, which must be raised by a direct appeal from the prior conviction. An uncounseled conviction by plea is not admissible to enhance a defendant's sentence absent a showing on the face of the conviction that the defendant knowingly, intelligently, and voluntarily waived counsel. Absent proof that the defendant knowingly, intelligently, and voluntarily waived counsel during a plea-based conviction, it is plain error to use such a conviction to enhance a defendant's sentence. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).
While being a habitual criminal is not a separate offense, the State nonetheless bears the burden of proving that enhancement is proper. In a proceeding for an enhanced penalty, the State has the burden to show that the record of a defendant's prior conviction, based on a plea of guilty, affirmatively demonstrates that the defendant was represented by counsel, or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).
Failure of counsel at habitual offender proceedings, at which relator was allowed to plead guilty, to discover that relator had not been represented by counsel at previous criminal proceedings at which relator received underlying felony convictions constituted ineffective assistance of counsel. Tinlin v. Parratt, 680 F.2d 48 (8th Cir. 1982).
Defendant's voluntary plea of guilty to forgery, count under this section having been dismissed under plea bargaining, indicated actual knowing waiver of speedy trial. Becker v. State, 435 F.2d 157 (8th Cir. 1971).
Validity of prior sentence not irrelevant in determining whether sentence was properly imposed under this section, even though failure to have counsel present at time of sentencing can normally be remedied by resentencing. Losieau v. Sigler, 406 F.2d 795 (8th Cir. 1969).


In California, the offer and sale of a franchise is regulated by the California Franchise Investment Law (“CFIL”). The CFIL imposes a registration and disclosure obligation on franchisors requiring them to register their franchise offering with the California Department of Business Oversight prior to any offer or sale of a franchise, and to provide prospective franchisees with the franchisor’s then-current franchise disclosure document no less than 14 calendar days before signing a franchise agreement or accepting payment from the prospective franchisee.
There are a few exceptions to these registration and disclosure requirements. One of those is the “experienced franchisee” exemption set forth in Section 31106 of the CFIL. Under the law, certain prospective franchisees may have a level of management, operational experience, and existing familiarity with the franchise that renders the registration and disclosure obligations of the CFIL unnecessary.
The owner is not controlled by the franchisor.
The owner or owners are not controlled by the franchisor.
Finally, if the transaction involves an additional franchise to an existing franchisee of the franchisor (or to an entity or individual with at least a 25 percent interest in the existing franchisee) the transaction is exempt under the CFIL so long as the existing franchisee has been engaged in a business offering products or services substantially similar to those to be offered by the additional franchise for the past 24 months.
Along with satisfying one of the above three criteria, the franchisor must file a notice of experienced franchisee exemption with the DBO no later than 15 days after the transaction is complete. This filing must be accompanied by a $450 filing fee for an initial notice of exemption and a $150 filing fee for each consecutive notice of exemption.
If the prospective franchisee satisfies any of the above three criteria, and the franchisor timely files the notice and pays the required filing fee, the transaction “shall be exempted from provisions of Chapter 2 [of the CFIL] (commencing with Section 31110).” This includes exemption from the registration (Sections 31110, 31114), disclosure (Section 31119), and renewal (Sections 31121, 31125) requirements set forth in Chapter 2 of the CFIL.
The burden of proving an exemption or exception under the CFIL is always “upon the person claiming it.” Also, similar, although not identical, exemptions from the Federal Trade Commission’s Amended Franchise Rule can be found at 16 CFR § 436.8(a)(5)(ii) and (a)(6).
Franchisors should be aware that although the language of subsection 3 of Section 31106 expressly references an “additional franchise to an existing franchisee,” a district court in California found that the experienced franchisee exemption does not apply to “renewed agreements with franchisees.” Instead, the exemption only applies if the existing franchisee is considering adding an additional franchised business.
This article was prepared by Kevin A. Adams (kadams@mulcahyllp.com), of the Irvine law firm of Mulcahy LLP. Mulcahy LLP is a boutique litigation firm that provides legal services to franchisors, manufacturers and other companies in the areas of antitrust, trademark, copyright, trade secret, unfair competition, franchise, and distribution laws.
 Cal. Corp. Code § 31106.
 Cal. Corp. Code § 31106(1).
 Cal. Corp. Code § 31106(2).
 Cal. Corp. Code § 31106(3).
 Cal. Corp. Code § 31106(b).
 See Cal. Corp. Code §§ 31106(f), 31500(f).
 Cal. Corp. Code § 31153.
 Mahroom v. Best Western Intern., Inc. (N.D. Cal. 2007)) 2007 WL 2123565, at *5.


No. 04 Civ. 1550 (DLC).
Robert Lewin, Esq., Stroock Stroock Lavan LLP, New York, New York. Anthony I. Pye, Esq., Law Offices of Anthony I. Pye, South Orange, New Jersey Attorney for the Plaintiff.
James M. Altman, Esq., Robert R. Reed, Esq., Bryan Cave LLP, New York, New York, Attorney for the Defendant.
This action concerns a plaintiff's attempt to collect from a parent corporation a judgment entered against the parent's former subsidiary. It is undisputed that the parent corporation is a "foreign sovereign" pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1610(c) ("FSIA").
On February 10, 2004, the Allstate Insurance Company ("Allstate"), a corporation organized under the laws of the State of Illinois with its principal place of business in Northbrook, Illinois, filed a state court action against Banco Do Estado do Rio Grande do Sul, S.A. ("Banrisul"), a state-owned corporation organized under the laws of the Federal Republic of Brazil ("Brazil") with its principal place of business in the Brazilian State of Rio Grande do Sul. Allstate sought to enforce five default judgments totaling approximately $1,100,000 obtained against one of Banrisul's former subsidiaries, União Novo Hamburgo Seguros, S.A. ("União").
The Court takes judicial notice of the fact that Rio Grande do Sul is one of 26 Brazilian states. Courts may take judicial notice of facts outside the trial record that are "not subject to reasonable dispute." Rule 201(b), Fed.R.Evid. Such facts must either be "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Id.
On February 23, Banrisul removed this action to federal court. Banrisul now moves to dismiss the action on the ground that this Court lacks subject matter jurisdiction. For the reasons stated below, the motion is granted.
The following facts are taken from the pleadings and evidence submitted by both parties in connection with this motion. See Cargill Intern. S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993) (in resolving a jurisdictional dispute, court must not only review the pleadings but also evidence submitted by the parties). At all times relevant to this lawsuit, the state of Rio Grande do Sul owned approximately 99.40% of the total shares of Banrisul's stock. From September 1968 until late 1997, Banrisul owned over 88% of União's stock.
Reinsurance limits an insurance company's risk with respect to its policies by transferring to other companies a portion of the risk that the company has assumed. "Simply put, reinsurance is a contract by which one insurer insures the risks of another insurer." North River Ins. Co. v. Ace American Reinsurance Co., 361 F.3d 134, 137 (2d Cir. 2004) (citation omitted).
The five GESB Contracts at issue in this lawsuit are: (1) Casualty Excess of Loss Retrocession Agreement 539G, effective January 1, 1981 ("Casualty Excess Agreement"); (2) Casualty Facultative/Obligatory Retrocession Agreement 505G, effective August 1, 1976; (3) Quota Share Reinsurance Agreement 32573G, effective July 1, 1981; (4) Commercial Ocean Marine Quota Share Contract of Reinsurance 52977S, effective January 1, 1980; and (5) Domestic Treaty Casualty Retrocessional Quota Share Agreement 102301G, effective July 1, 1979.
If any dispute arises between the Reinsurer and the Retrocessionaires with reference to the interpretation, performance or breach of this Agreement . . . such dispute . . . will be submitted to three arbitrators. . . . The arbitration hearings will be held in Northbrook, Illinois.
By the GESB Contracts, União agreed to designate a United States law firm and the Illinois Superintendent of Insurance as the agents for service of process in any proceeding arising from the contracts. Banrisul was not a party to any of the GESB Contracts.
Any Retrocessionaire [i.e., União] who fails to pay any amount claimed due hereunder will submit, at the request of the Reinsurer [i.e., Allstate], to any court of competent jurisdiction within the United States and will comply with all requirements necessary to give such court jurisdiction. The law and practice of such court will prevail in any suit against any Retrocessionaire upon this Agreement. . . .
John G. Smith, Attorney-In-Fact [Illinois address], . . . or another party specifically designated . . . [is] authorized and directed to accept service of process on behalf of the Retrocessionaires in any such suit. . . .
Further, . . . the Retrocessionaires hereby designate the Superintendent, Commissioner, or Director of Insurance . . . as their true and lawful attorney upon whom may be served any lawful process in any action, suit, or proceeding arising out of this Agreement. . . .
Virtually identical "Service of Suit" clauses appear in each of the GESB Contracts.
In 1997, as part of the financial reforms enacted by the State of Rio Grande do Sul, Banrisul held a public auction for all of its shares in União. On November 25, Bradesco Seguros, S.A. ("Bradesco"), a non-state owned Brazilian corporation, emerged as the successful bidder at the auction. The terms and conditions of the auction were published in an official document of the government of Rio Grande do Sul (the "Conditions of Sale"). Attached to the Conditions of Sale was a Share Purchase and Sale Agreement (the "Purchase Agreement") to be entered into by Banrisul and the eventual purchaser. In addition, Banrisul and União executed an "Agreement of Commitment for the Assumption of Obligations and Other Covenants" (the "Commitment"). Allstate was not a party to any of the agreements.
All three documents are in Portuguese. The Court here relies on the translations provided by Allstate for the Conditions of Sale and the Purchase Agreement. Because Allstate did not provide a translation for the Commitment, the Court relies on Banrisul's translation of that document.
The documents governing the auction of Banrisul's shares in União provided that Brazilian law would govern any disputes, and that Brazilian courts retained jurisdiction over the parties to the agreements. Specifically, the Conditions of Sale provided that disputes arising under it would be "governed by Brazilian law" and the parties would be "subject to the jurisdiction of the Courts of Porto Alegre, Rio Grande do Sul State, which are competent to hear any legal action that may arise from it." The Purchase Agreement established exclusive jurisdiction for any disputes between Banrisul and União's new owner in a particular court in Rio Grande do Sul.
The Ninth Clause of the Purchase Agreement reads: "The parties elect Foro Central da Comarca de Porto Alegre, capital of state of Rio Grande do Sul, to solve any doubts or disputes originating in this agreement, expressly resigning any other, however much privileged it is or would be."
Should Companhia União come [sic] be required to make payments as a result of a final judicial decision, Banrisul undertakes to reimburse the entirety of the amounts paid within a period of ten (10) days commencing from the submittal of the formal document by Companhia União, under penalty of incurring a contractual penalty of ten percent (10%) of the amount paid, the interest, and the other legal charges.
[Banrisul] is expressly responsible, before the New Control Group [i.e., Bradesco] for remaining obligations assumed by União as [a] member of [GESB] . . . according to item 4.4 [of the Conditions of Sale].
Section 4.4 of the Conditions of Sale similarly stated Banrisul's obligation to União's new owner for the "remaining obligations assumed by União" as a member of GESB.
On August 2, 2000, after União allegedly failed to pay the amounts it owed under the GESB Contracts, Allstate commenced five separate arbitrations against União in Illinois. União did not participate in the arbitrations, and five separate arbitration awards were entered in Allstate's favor. On May 8, 2001, Allstate moved to confirm each award in separate proceedings in the Northern District of Illinois. União again failed to appear, and on August 30, the court entered five separate Orders and Judgments (the "Judgments") confirming the arbitration awards against União. On June 12, 2002, Allstate registered the Judgments in this District, pursuant to 28 U.S.C. § 1963.
The arbitration awards directed União to pay Allstate a total of $882,636.02 in unpaid losses, accrued interest and arbitration costs. In addition, União was ordered to pay interest on any unpaid arbitration award at the rate of 8%, compounded, commencing 30 days after the date of the awards, and also required União to deliver to Allstate the amount of $214,210.62 to be held in a Funds Held Account to secure any payments under the respective reinsurance treaties that may become due after January 20, 2001.
In a letter dated January 21, 2003, in response to Allstate's effort to collect on the Judgments, União informed Allstate that Banrisul, not União, was responsible for payment of the Judgments. União directed Allstate to the Conditions of Sale and the Purchase Agreement. On September 3, Allstate filed a petition against Banrisul in this Court seeking to enforce the União Judgments against Banrisul. On February 10, 2004, Allstate voluntarily dismissed the original federal proceeding, and on the same day commenced a new proceeding against Banrisul in state court pursuant to CPLR § 5227. On February 23, Banrisul removed the state court petition, and now moves to dismiss Allstate's complaint for lack of subject matter jurisdiction.
Banrisul argues that it is immune from suit in the United States because it is a "foreign state" under the FSIA. According to Banrisul, its only obligation with respect to União's participation in the GESB Contracts is to indemnify its new owner, Bradesco, for any liabilities arising out of União's former participation in GESB.
In support of its motion, Banrisul submits a declaration by Paulo Roberto Lontra, General Counsel to Banrisul and its employee since 1975, and a 14-page affidavit by Marcelo Mansur Haddad, a partner at the Brazilian law firm of Mattos Filho, Veiga Filho, Marrey Jr. Quiroga, and an expert in Brazilian insurance and contract law.
Allstate's complaint does not mention the FSIA, but in its opposition to this motion, Allstate concedes that Banrisul is a foreign state under the FSIA, and does not dispute Banrisul's claim that the "commercial activity" exception to sovereign immunity is inapplicable to this case. Allstate argues, however, that União acted as an agent of Banrisul in entering into the GESB Contracts, and that União's waiver of sovereign immunity under the arbitration and service of suit clauses of the GESB Contracts therefore should be imputed to Banrisul. Allstate also argues that, as a signatory to the Inter-American Convention on International Commercial Arbitration, codified at 9 U.S.C. § 301et seq. (the "Panama Convention"), Brazil has waived its foreign immunity with respect to proceedings under New York law against Banrisul to enforce the União judgments.
The FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in federal court." Reiss v. Société Centrale du Groupe des Assurances Nationales, 235 F.3d 738, 746 (2d Cir. 2000) (citation omitted). Allstate does not dispute that Banrisul is a "foreign state" under the FSIA. Although the FSIA provides that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States," 28 U.S.C. § 1604, it "allow[s] for the exercise of such jurisdiction in cases that fall within several statutorily defined exceptions," Reiss, 235 F.3d at 747. "Once the defendant has made a prima facie showing that it is a foreign sovereign, the plaintiff has the burden of going forward with evidence showing that, under exceptions to the FSIA, immunity should not be granted, although the ultimate burden of persuasion remains with the alleged foreign sovereign." Cabiri v. Government of Republic of Ghana, 165 F.3d 193, 196 (2d Cir. 1999) (citation omitted).
28 U.S.C. § 1605(a)(1). FSIA's implied waiver provision must be "construed narrowly." Transatlantic Shiffahrtskontor GmbH v. Shanghai Foreign Trade Corp., 204 F.3d 384, 391 (2d Cir. 2000). Instances where courts have found an implicit waiver "involve circumstances in which the waiver was unmistakable, and courts have been reluctant to find an implied waiver where the circumstances were not similarly unambiguous." Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991).
Allstate contends that União operated as an agent of Banrisul under the GESB Contracts, and therefore, that Banrisul is bound by União's waiver of sovereign immunity under the arbitration and service of suit provisions of the GESB Contracts. Specifically, Allstate maintains that União was Banrisul's agent because, inter alia, Banrisul owned approximately 88% of União's voting shares, Banrisul admitted in Article 6.3.2 of the Conditions of Sale that it possessed "almost absolute power to control" União, and that Banrisul's sale of União to Bradesco itself constituted evidence of Banrisul's control over União because the sale was "part and parcel" of Brazil's efforts to end state control of financial institutions such as União.
Allstate cites to Article 6.1 of the Conditions of Sale, which does not contain the quoted language. Presumably, Allstate intended to cite to Article 6.3.2, which does contain such language.
Under the FSIA, agencies and instrumentalities of a foreign sovereign are accorded a presumption of independent status.First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 627 (1983) ("Bancec"); see also Compagnie Noga D'importation et D'exportation, S.A. v. The Russian Federation, 361 F.3d 676, 684-85 (2d Cir. 2004). The presumption of separateness may be defeated "where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created." Bancec, 462 U.S. at 629 (citation omitted). See also Zappia Middle East Const. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 252 (2d Cir. 2000). Under the FSIA, stock ownership alone is insufficient to show that a subsidiary is an agent of its parent. See Transamerica Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 849 (D.C. Cir. 2000); De Letelier v. Republic of Chile, 748 F.2d 790, 795 (2d Cir. 1984); see also LNC Investments, Inc. v. Republic of Nicaragua, 115 F. Supp.2d 358, 365 (S.D.N.Y. 2000) (collecting cases).
The only other way to defeat the presumption of separateness under the FSIA is to show that giving effect to separate legal entities "would work fraud or injustice."Bancec, 462 F.3d 629 (citation omitted). Allstate does not claim that recognizing the juridical separateness of Banrisul and União would result in fraud or injustice.
Extensive control exists where the parent so dominates the subsidiary that "they act as one." Transamerica, 200 F.3d at 848. See also Zappia, 215 F.3d at 252. Sufficient control can also be found through normal agency principles, whether it be through the operation of actual or apparent authority for the subsidiary to act on behalf of the parent in connection with the subject matter at issue. Transamerica, 200 F.3d at 849-50. See also Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 122 (2d Cir. 1998) (to bind a principal, "an agent must have authority, whether apparent, actual or implied"). In order to establish an agency relationship, a party must show "(1) the principal's manifestation of intent to grant authority to the agent, and (2) agreement by the agent." Commercial Union Ins. Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 462 (2d Cir. 2003) (citation omitted).
Actual authority "is created by direct manifestations from the principal to the agent." Reiss, 235 F.3d at 748 (citation omitted); see also Peltz v. SHB Commodities, Inc., 115 F.3d 1082, 1088 (2d Cir. 1997); Minskoff v. Am. Express Travel Related Serv. Co., 98 F.3d 703, 708 (2d Cir. 1996). The consent for actual authority may be either express or implied from "the parties' words and conduct as construed in light of the surrounding circumstances." Riverside Research Inst. v. KMGA, Inc., 489 N.Y.S.2d 220, 223 (1st Dep't 1985); see also Minskoff, 98 F.3d at 708. "[I]mplied actual authority . . . is dependent on verbal or other acts by a principal which reasonably give an appearance of authority" in a manner that is "brought home to the agent." Greene v. Hellman, 51 N.Y.2d 197, 204 (1980); see also Fed. Ins. Co. v. Diamond Kamvakis Co., 536 N.Y.S.2d 760, 762 (1st Dep't 1989). Whether actual authority exists "depends on the actual interaction between the putative principal and agent, not on any perception a third party may have of the relationship." Itel Containers Int'l Corp. v. Atlanttrafik Express Serv. Ltd., 909 F.2d 698, 702 (2d Cir. 1990). As with all disputes under the FSIA, the plaintiff bears the burden of proving agency. Zappia, 215 F.3d at 252.
Allstate has not shown that União was operating as an agent of Banrisul when it entered into the GESB Contracts. Allstate presents no evidence that Banrisul exercised extensive control over União's operations, that it intended União to act as its agent when entering the GESB Contracts, or that União accepted such a grant of power.
Allstate relies on Section 6.3.2's statement that Banrisul has "almost absolute power to control the company." In doing so, it takes the statement out of context. The clause, entitled "Structure of Shares," describes União's ownership structure, and delineates the percentage of stock owned by different stockholders, including Banrisul. The quoted language refers to Banrisul's power over União by virtue of its nearly complete ownership of União's stock, and is not evidence of the type of control that is necessary to rebut the presumption of corporate separateness.
In addition, the fact that Brazil (through Banrisul) sold União to Bradesco as part of its effort to encourage privatization of financial institutions is not evidence that Banrisul exercised the kind of control over União that would make Banrisul directly liable for União's debts. Oversight by a sovereign over the privatization of one of its subsidiaries "is similar to the conduct of a majority shareholder, is not unusual, and can not be the basis for ignoring the corporate form." Pravin Banker Associates, Ltd. v. Banco Popular del Peru, 9 F. Supp.2d 300, 306 (S.D.N.Y. 1998).
In sum, Allstate has not shown that União operated as Banrisul's agent such that União's purported waiver of sovereign immunity for itself in the GESB Contracts should also be imputed to Banrisul. For example, Allstate has not shown that Banrisul exercised day-to-day control over União's operations, that União was required to obtain Banrisul's prior approval before entering into the contracts with Allstate, or that Banrisul abused the corporate form.
Allstate points to Maritime Ventures Int'l, Inc. v. Caribbean Trading Fidelity, Ltd., 689 F. Supp. 1340 (S.D.N.Y. 1988), as support for its claim that Banrisul waived its immunity by virtue of acts taken by União. In Maritime Ventures, the court denied a summary judgment motion where the execution of a power of attorney raised questions of fact regarding the existence of an agency relationship. Id. at 1354. Allstate fails to point to any similar document or circumstances to raise even a question of fact that União acted as Banrisul's agent when it entered into the GESB Contracts.
The United States signed the Panama Convention in 1975, and codified it into law on October 27, 1990.
An arbitral decision or award that is not appealable under the applicable law or procedural rules shall have the force of a final judicial judgment. Its execution or recognition may be ordered in the same manner as that of decisions handed down by national or foreign ordinary courts. . . ."
9 U.S.C. § 301, Art. 4. The Panama Convention applies when an arbitration arises from a commercial relationship between citizens of signatory nations. See id.; Productos Mercantiles E Industriales, S.A. v. Faberge USA, Inc., 23 F.3d 41, 44 (2d Cir. 1994).
Banrisul did not sign the GESB Contracts and did not participate in the arbitration proceedings against União. A suit in this Court against Banrisul is an attempt to bypass the indemnification provisions in the Conditions of Sale, Purchase Agreement, and Commitment and to create a direct obligation running from Banrisul to Allstate for União's debts under the GESB Contracts. A similar argument for waiver was recently rejected by the Second Circuit. In Transatlantic Shiffahrtskontor, the court rejected the plaintiff's argument that the defendant, an instrumentality of China, had waived its sovereign immunity by virtue of China's participation in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, codified at 9 U.S.C. § 201 et seq. (the "New York Convention"). Transatlantic Shiffahrtskontor, 204 F.3d at 391. The Second Circuit held that, since the plaintiff was not directly appealing an arbitration award against the defendant's subsidiary, but rather was seeking to enforce a judgment against the defendant whereby the defendant had been ordered to indemnify its subsidiary, "it is hard to view this suit as being in essence a suit designed to enforce an arbitral award." Id. Accordingly, the court held that the implied waiver exception was "inapplicable" to the case. Id. Cf. Seetransport Wiking Trader Schiffarhtsgesellschaft MBH Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 578-79 (2d Cir. 1993) (defendant waived sovereign immunity by participating in arbitration of a dispute arising under a contract to which it had been a party).
For similar reasons, the fact that this lawsuit is brought under CPLR § 5227 is of no assistance to Allstate. Section 5227 allows a judgment creditor to seek payment against the debtor of the judgment debtor, in this case Banrisul. As Transatlantic Shiffahrtskontor explains, this indirect connection between a plaintiff and defendant does not constitute an implied waiver of sovereign immunity.
property of a foreign state . . . used for a commercial activity in the United States, shall not be immune from attachment . . . if (1) the foreign state has explicitly waived its immunity from attachment prior to judgment . . . [or] (2) the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdiction.
28 U.S.C.A. § 1610(d)(1) and (2). Here, Allstate is not seeking to assert jurisdiction through an attachment, and makes no claim that Banrisul expressly waived its immunity under Section 1610(d). Moreover, the Caja court noted that the waiver associated with Section 1610(d) only applied to a litigant's ability to obtain security and not to obtain jurisdiction.Caja, 293 F.3d at 400.
For the reasons stated above, the defendant's motion is granted. The Clerk of Court shall enter judgment for the defendant and close the case.


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Thurgood Marshall (July 2, 1908- January 24, 1993) was an American jurist and the first African American to serve on the United States Supreme Court.
Marshall was born in Baltimore, Maryland. His parents, William and Norma, named him "Thoroughgood" after his great-grandfather, a former slave who had fought for the Union Army during the Civil War. However, Marshall found the name cumbersome and was known as Thurgood from childhood.
During his time in Frederick Douglass High School, he was considered at best a mediocre student if not simply a troublemaker, and was often sent to the principal's office for disciplinary reasons. A frequently used punishment was requiring him to memorize a portion of the constitution, which he would then have to recite before being excused. As a result, by the time he left high school he "knew the whole thing by heart," setting the foundation for his pursuit of a career in law.
Marshall graduated from Lincoln University in 1930. Afterward, Marshall thought of applying to his hometown law school at the University of Maryland School of Law. He did not, however, because he knew the school's formal segregation policy would have denied him admission.
Instead, Marshall sought admission and was accepted at Howard University. He was influenced by its dynamic new dean, Charles Hamilton Houston, who instilled in his students the desire to apply the tenets of the Constitution to all Americans.
Marshall was married twice; to Vivien "Buster" Burey from 1929 until her death in February 1955 and to Cecilia "Cissy" Suyat from December 1955 until his death in 1993. Marshall had two sons from his second marriage; Thurgood Marshall Jr., a former top aide to President Bill Clinton, and John W. Marshall, who is currently Secretary of Public Safety in the Cabinet of Virginia Governor Mark Warner and a former United States Marshals Service Director.
Marshall was a prominent member of Alpha Phi Alpha Fraternity Inc., the first intercollegiate Greek-letter fraternity established for African Americans.
Marshall received his law degree from Howard in 1933, and set up a private practice in Baltimore. The following year, he began working with the Baltimore NAACP. He won his first major civil rights case, Murray v. Maryland, 169 Md. 478 (1936). This involved the first attempt to chip away at Plessy, a plan created by his co-counsel on the case Charles Hamilton Houston. Marshall represented Donald Gaines Murray, a black Amherst College graduate with excellent creditials who had been denied admission to the University of Maryland Law School because of its separate but equal policies. this policy required black students to accept one of three options: attend Morgan College, the Princess Anne Academy, or out-of-state black institutions. In 1935, Thurgood Marshall argued the case for Murray, showing that neither of the in-state institutions offered a law school and that such schools were entirely unequal to the University of Maryland. Marshall and Houston expected to lose and intended to appeal to the federal courts. The Maryland Court of Appeals ruled against the state of Maryland and its Attorney General, who represented the University of Maryland, stating “Compliance with the Constitution cannot be deferred at the will of the state. Whatever system is adopted for legal education now must furnish equality of treatment now”. Because the state did not appeal the ruling in the federal courts, this state ruling under the U.S. Constitution was the first to overturn Plessy. While it was a moral precedent, it was not a legal one, and had no authority outside the state of Maryland.
Marshall won his first Supreme Court case, Chambers v. Florida, 309 U.S. 227 (1940). That same year, at the age of 32, he was appointed Chief counsel for the NAACP. He argued many other cases before the Supreme Court, most of them successfully, including Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); and McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). His most famous case as a lawyer was Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the case in which the Supreme Court ruled that "separate but equal" public education was unconstitutional because it could never be truly equal. In total, Marshall won twenty-nine out of the thirty-two cases he argued before the Supreme Court.
President Kennedy appointed Marshall to the United States Court of Appeals for the Second Circuit in 1961. A group of Democratic Party Senators led by Mississippi's James Eastland and West Virginia's Robert Byrd held up his confirmation, so he served for the first several months under a "recess appointment." Marshall remained on that court until 1965, when President Lyndon Johnson appointed him Solicitor General.
On June 13, 1967, President Johnson appointed Marshall to the Supreme Court following the retirement of justice Tom C. Clark, saying that this was "the right thing to do, the right time to do it, the right man and the right place." He was the 96th person to hold the position, and the first African-American. President Johnson confidently predicted to one biographer, Doris Kearns, that a lot of black baby boys would be named "Thurgood" in honor of this choice.
Marshall served on the Court for the next twenty-four years, compiling a liberal record that included strong support for Constitutional protection of individual rights, especially the rights of criminal suspects against the government. His most frequent ally on the Court was Justice William Brennan, who consistently joined him in opposing the death penalty. Marshall announced his retirement at the end of his term on June 28, 1991, citing his age and declining health as reasons.
Among his many law clerks were Chief Judge Douglas Ginsburg of the D.C. Circuit Court of Appeals and well-known law professor Cass Sunstein.
There is a memorial to Justice Marshall near the Maryland State House.

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Appeal From Charleston County John Hamilton Smith, Circuit Judge Walter J. Bristow, Special Circuit Judge.
Attorney General Charles Molony Condon, Deputy Attorney General J. Emory Smith, Jr., Assistant Attorney General Teresa Nesbitt Cosby and Assistant Attorney General Teresa A. Knox, Columbia, for Petitioner.
Assistant Appellate Defender Lesley M. Coggiola, of South Carolina Office of Appellate Defense, Columbia, for Respondent.
This Court granted certiorari to review the lower court's grant of Post-Conviction Relief ("PCR") to Daniel Edward Washington. We affirm.
Washington was indicted and tried for trafficking in cocaine. He was found guilty and sentenced to twenty-five years imprisonment and fined $200,000. He filed a notice of intent to appeal. This Court dismissed the appeal due to Washington's failure to file an initial brief and designated matter to be included on appeal.
Washington filed an application for PCR on July 15, 1991, raising a number of issues, including one relating to the State's misconduct in connection with a plea agreement. The PCR court, Judge Bristow, issued an order on April 21, 1992, finding that Washington did not waive his right to a direct appeal and should be afforded an opportunity to appeal pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986). As to the State's misconduct, the court found that the State failed to adequately explain to the jury the State's relationship with one of its witnesses. The court's order stated that "this is a matter that can be addressed on direct appeal and does not require a reversal of the jury verdict by this Court."
After the PCR court issued its April 21, 1992 order, Washington petitioned for writ of certiorari, raising three issues: (1) the judge erred by failing to find ineffective assistance of counsel at trial; (2) the judge erred by failing to reverse the conviction based on the State's misconduct; and (3) trial counsel failed to properly perfect Washington's appeal, thereby denying him the opportunity to appeal his conviction. This Court denied certiorari, in a memorandum opinion, as to issues 1 and 2. We granted certiorari on issue number 3, reasoning that there was sufficient evidence to support the PCR judge's finding that Washington did not knowingly and intelligently waive his right to a direct appeal. The appeal was affirmed pursuant to Rule 220 (b) (1), SCACR, and State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (appellate court will not consider issues not raised to or ruled upon by trial judge). The merits of the appeal were not reached.
On July 28, 1993, Washington filed another application for PCR, arguing: (1) ineffective assistance of PCR counsel and (2) error by the PCR judge in ruling that the issue of the State's misconduct could be heard by an appellate court. The matter was again heard by Judge Bristow. At the November 7, 1994 hearing, Washington moved to amend the court's April 21, 1992 order for what "amount[ed] to clerical errors." He argued the court found in the 1991 PCR hearing that in the event the issue of the State's misconduct is not preserved on direct appeal, then Washington would be entitled to a new trial. The court treated the motion as a motion to alter or amend judgment and agreed with Washington. The court amended the April 21, 1992 order to grant Washington a new trial.
The State has petitioned for writ of certiorari, which this Court has granted.
The Supreme Court must affirm the PCR court's findings if they are supported by any competent evidence of probative value in the record. Webb v. State, 281 S.C. 237, 314 S.E.2d 839 (1984). Here, the PCR court found that Washington was entitled to a new trial because of the State's misconduct in failing to fully disclose the nature of its relationship with a witness. The United States Supreme Court in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) stated that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice; the same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.
Under the present facts, the State allowed to go uncorrected false information about its relationship with one of its witnesses. Although it had entered into a plea agreement with this witness, the State, in its opening argument, told the jury that no such agreement existed. Furthermore, there was testimony that no deal existed between the State and the witness. The PCR court's findings are supported by competent evidence of probative value in the record. Accordingly, the granting of relief is affirmed.
The State argues, and the dissent agrees, that Washington is procedurally barred. Although one may reach this result under a hyper-technical analysis, such a conclusion must be rejected in this case, because so many procedural irregularities occurred during the course of Washington's judicial process that he has not received due process. He did not have the benefit of a direct appeal, because his attorney failed to file an appellate brief. Moreover, the first PCR court decided, in effect, that Washington was entitled to a new trial, but allowed the relief to be addressed on direct appeal; however, this Court denied certiorari as to the question. Additionally, the second PCR court granted relief, but did so through an improper procedure, specifically, by amending the first order. Thus, Washington has never received the benefit of a direct review. Even if his application is successive, the unique combination of facts in this case entitle him to the relief granted below. See Case v. State, 277 S.C. 474, 289 S.E.2d 413 (1982).
Finality must be realized at some point in order to achieve a semblance of effectiveness in dispensing justice. At some juncture judicial review must stop, with only the very rarest of exceptions, when the system has simply failed a defendant and where to continue the defendant's imprisonment without review would amount to a gross miscarriage of justice.
Id. The present case is one of those rare exceptions.
Based on the foregoing, the PCR court's order granting Washington a new trial is AFFIRMED.
FINNEY, C.J., and MOORE and WALLER, JJ., concur.
BURNETT, J., dissenting in separate opinion.
I respectfully dissent. Respondent's application for post-conviction relief (PCR) is successive.
In 1991, respondent filed a PCR application. In April 1992, after a hearing, the PCR judge issued an order finding, inter alia, the State had failed to adequately explain a plea agreement with one of its witnesses at respondent's trial and, further, respondent had not knowingly and voluntarily waived his right to a direct appeal. The PCR judge concluded, however, that the State's misconduct did not warrant reversal by the PCR court, but could be addressed on direct appeal. Respondent did not file a Rule 59 (e), SCRCP, motion to alter or amend the 1992 order.
On respondent's petition for a writ of certiorari, this Court affirmed the denial of PCR, granted respondent a belated review on the issue of the State's misconduct, and affirmed due to respondent's failure to preserve the issue for appellate review at trial. Washington v. State, Op. No. 93-MO-151 (S.C. Sup. Ct. filed June 11, 1993).
In July 1993, respondent filed a second PCR application challenging the PCR judge's finding that the State's failure to adequately explain the plea agreement could be raised on direct appeal. In addition, respondent alleged ineffective assistance of PCR counsel.
In 1994, prior to the hearing on his second PCR application, respondent motioned the PCR judge to correct "clerical errors" in his April 1992 order. He asserted the PCR judge's 1992 order did not conform to his oral ruling at the PCR hearing. The PCR judge granted respondent's motion and issued an order amending his prior PCR order. In this amended order, the PCR judge stated that since the Supreme Court "refused to hear this matter [regarding the plea agreement] on direct [appeal]," respondent was entitled to a new trial. It is from this order that the State sought and was granted a writ of certiorari.
Both of respondent's PCR applications were heard by the same PCR judge.
Respondent's second PCR application is successive. See S.C. Code Ann. § 17-27-90 (1976) ("[a]ny ground finally adjudicated . . . in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application. . . ."). Successive PCR applications are not favored, and the applicant has the burden of proving that the grounds raised in a successive application could not have been raised in a previous application. Aice v. State, 305 S.C. 448, 409 S.E.2d 392 (1991). Successive applications have been permitted in cases involving unique factual circumstances. Cf. Carter v. State, 293 S.C. 528, 362 S.E.2d 20 (1987) (a successive application raising the issue of ineffective assistance of trial counsel was permitted where trial counsel had represented the applicant in the first PCR matter); Case v. State, 277 S.C. 474, 289 S.E.2d 433 (1982) (where applicant's first PCR application was filed without benefit of counsel and was dismissed without a hearing, his second application warranted a hearing despite its successiveness). The facts of the matter sub judice do not warrant review of respondent's successive PCR application. I would reverse.


(A) The term "beneficiary country" means any country listed in subsection (b) with respect to which there is in effect a proclamation by the President designating such country as a beneficiary country for purposes of this chapter. Before the President designates any country as a beneficiary country for purposes of this chapter, he shall notify the House of Representatives and the Senate of his intention to make such designation, together with the considerations entering into such decision.
(B) The term "entered" means entered, or withdrawn from warehouse for consumption, in the customs territory of the United States.
(C) The term "HTS" means Harmonized Tariff Schedule of the United States.
(D) The term "NAFTA" means the North American Free Trade Agreement entered into between the United States, Mexico, and Canada on December 17, 1992.
(E) The terms "WTO" and "WTO member" have the meanings given those terms in section 3501 of this title.
(F) The term "former beneficiary country" means a country that ceases to be designated as a beneficiary country under this chapter because the country has become a party to a free trade agreement with the United States.
(2) If the President has designated any country as a beneficiary country for purposes of this chapter, he shall not terminate such designation (either by issuing a proclamation for that purpose or by issuing a proclamation which has the effect of terminating such designation) unless, at least sixty days before such termination, he has notified the House of Representatives and the Senate and has notified such country of his intention to terminate such designation, together with the considerations entering into such decision.
(7) if such country has not or is not taking steps to afford internationally recognized worker rights (as defined in section 2467(4) of this title) to workers in the country (including any designated zone in that country).
Paragraphs (1), (2), (3), (5), and (7) shall not prevent the designation of any country as a beneficiary country under this Act if the President determines that such designation will be in the national economic or security interest of the United States and reports such determination to the Congress with his reasons therefor.
(11) the extent to which such country is prepared to cooperate with the United States in the administration of the provisions of this chapter.
if, after such designation, the President determines that as a result of changed circumstances such country would be barred from designation as a beneficiary country under subsection (b).
if, after such designation, the President determines that, as a result of changed circumstances, the performance of such country is not satisfactory under the criteria set forth in section 2703(b)(5)(B) of this title.
(2)(A) The President shall publish in the Federal Register notice of the action the President proposes to take under paragraph (1) at least 30 days prior to taking such action.
(II) the time and place at which such written comments will be accepted.
(3) If preferential treatment under section 2703(b)(2) and (3) of this title is withdrawn, suspended, or limited with respect to a CBTPA beneficiary country, such country shall not be deemed to be a "party" for the purposes of applying section 2703(b)(5)(C) of this title to imports of articles for which preferential treatment has been withdrawn, suspended, or limited with respect to such country.
(B) the performance of each beneficiary country or CBTPA beneficiary country, as the case may be, under the criteria set forth in section 2703(b)(5)(B) of this title.
Before submitting the report described in paragraph (1), the United States Trade Representative shall publish a notice in the Federal Register requesting public comments on whether beneficiary countries are meeting the criteria listed in section 2703(b)(5)(B) of this title.
This chapter, referred to in subsecs. (a) to (c) and (f), was in the original "this title", meaning title II of Pub. L. 98–67, Aug. 5, 1983, 97 Stat. 384, which is classified principally to this chapter. For complete classification of title II to the Code, see Short Title note set out under section 2701 of this title and Tables.
The Harmonized Tariff Schedule of the United States, referred to in subsec. (a)(1)(C), is not set out in the Code. See Publication of Harmonized Tariff Schedule note set out under section 1202 of this title.
This Act, referred to in provisions following subsec. (b)(6), probably should be "this title" meaning title II of Pub. L. 98–67, Aug. 5, 1983, 97 Stat. 384, which is classified principally to this chapter. For complete classification of title II to the Code, see Short Title note set out under section 2701 of this title and Tables.
This chapter, referred to in subsec. (e)(1)(B), was in the original "this subtitle", meaning subtitle A (§§211–218) of title II of Pub. L. 98–67 which enacted this chapter, amended section 1202 of this title, repealed section 2582 of this title, and enacted provisions set out as notes under sections 1202, 1319, 2251, and 2703 of this title and section 1311 of Title 33, Navigation and Navigable Waters. For complete classification of subtitle A to the Code, see Tables.
Subsec. (d) of this section amended general headnote 3(a) of the Tariff Schedules of the United States. The Tariff Schedules were replaced by the Harmonized Tariff Schedule of the United States. See References in Text note above.
2011—Subsec. (b). Pub. L. 112–43, §§107(c), 402(a), temporarily struck out "Panama" from list of countries eligible for designation as beneficiary country. See Effective and Termination Dates of 2011 Amendment note below.
2005—Subsec. (a)(1)(F). Pub. L. 109–53, §§107(d), 402(a), temporarily added subpar. (F). See Effective and Termination Dates of 2005 Amendment note below.
Subsec. (b). Pub. L. 109–53, §§107(d), 402(b), temporarily struck out "Costa Rica", "Dominican Republic", "El Salvador", "Guatemala", "Honduras", and "Nicaragua" from list of countries eligible for designation as beneficiary country. See Effective and Termination Dates of 2005 Amendment notes below.
2000—Subsec. (a)(1)(D), (E). Pub. L. 106–200, §211(e)(2), added subpars. (D) and (E).
Subsec. (e)(1). Pub. L. 106–200, § 211(b)(1), designated existing provisions as subpar. (A), redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (A), and added subpar. (B).
Subsec. (e)(3). Pub. L. 106–200, §211(b)(2), added par. (3).
Subsec. (f). Pub. L. 106–200, §211(c)(1), inserted heading and amended text generally. Prior to amendment, text read as follows: "On or before October 1, 1993, and the close of each 3-year period thereafter, the President shall submit to the Congress a complete report regarding the operation of this chapter, including the results of a general review of beneficiary countries based on the considerations described in subsections (b) and (c) of this section."
1996—Subsec. (b)(7). Pub. L. 104–188 substituted "2467(4)" for "2462(a)(4)".
1994—Subsec. (c)(4). Pub. L. 103–465 substituted "WTO Agreement and the multilateral trade agreements (as such terms are defined in paragraphs (9) and (4), respectively, of section 3501 of this title)" for "General Agreement on Tariffs and Trade, as well as applicable trade agreements approved under section 2503(a) of this title".
1990—Subsec. (b). Pub. L. 101–382, §213(1)–(4), added par. (7) and in concluding provisions substituted "(5), and (7)" for "and (5)".
Subsec. (c)(8). Pub. L. 101–382, §213(5), amended par. (8) generally. Prior to amendment, par. (8) read as follows: "the degree to which workers in such country are afforded reasonable workplace conditions and enjoy the right to organize and bargain collectively;".
Subsec. (f). Pub. L. 101–382, §214, added subsec. (f).
1988—Subsec. (a)(1)(C). Pub. L. 100–418, §1214(q)(1), substituted "HTS" and "Harmonized Tariff Schedule of the United States" for "TSUS" and "Tariff Schedules of the United States", respectively.
Subsec. (e). Pub. L. 100–418, §1909(c), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: "The President shall, after complying with the requirements of subsection (a)(2) of this section, withdraw or suspend the designation of any country as a beneficiary country if, after such designation, he determines that as the result of changed circumstances such country would be barred from designation as a beneficiary country under subsection (b) of this section."
1986—Subsec. (b)(6), (7). Pub. L. 99–570 redesignated par. (7) as (6) and struck out former par. (6) which provided that the President shall not designate a country as a beneficiary country under this chapter if the country does not take adequate steps to cooperate with the United States to prevent narcotic drugs and other controlled substances produced, processed, or transported in the country from entering the United States unlawfully.
Amendment by Pub. L. 112–43 effective on date President terminates designation of Panama [Designation terminated Oct. 29, 2012. See Proc. No. 8894, 77 F.R. 66507.] as beneficiary country pursuant to section 201(a)(3) of Pub. L. 112–43, set out in a note under section 3805 of this title, and to cease to have effect on date the United States–Panama Trade Promotion Agreement terminates, see sections 107(c) and 402(b) of Pub. L. 112–43, set out in a note under section 3805 of this title.
Pub. L. 109–53, title IV, §402(b), Aug. 2, 2005, 119 Stat. 495, provided that the amendment made by section 402(b) is effective on date President terminates designation of Costa Rica [Designation terminated Jan. 1, 2009. See Proc. No. 8331, 73 F.R. 79585.], Dominican Republic [Designation terminated Mar. 1, 2007. See Proc. No. 8111, 72 F.R. 10025.], El Salvador [Designation terminated Mar. 1, 2006. See Proc. No. 7987, 71 F.R. 10827.], Guatemala [Designation terminated July 1, 2006. See Proc. No. 8034, 71 F.R. 38509.], Honduras [Designation terminated Apr. 1, 2006. See Proc. No. 7996, 71 F.R. 16971.], or Nicaragua [Designation terminated Apr. 1, 2006. See Proc. No. 7996, 71 F.R. 16971.] as beneficiary country pursuant to section 4031(a)(3) of this title.
Amendment by Pub. L. 103–465 effective on the date on which the WTO Agreement enters into force with respect to the United States [Jan. 1, 1995], see section 621(b) of Pub. L. 103–465, set out as a note under section 1677k of this title.
Amendment by section 1214(q)(1) of Pub. L. 100–418 effective Jan. 1, 1989, and applicable with respect to articles entered on or after such date, see section 1217(b)(1) of Pub. L. 100–418, set out as an Effective Date note under section 3001 of this title.
Functions of President under subsec. (e)(2)(A) of this section, related to publishing notice of proposed actions, delegated to United States Trade Representative, see Proc. No. 7616, Oct. 31, 2002, 67 F.R. 67283, set out as a note under section 3203 of this title.
"(4) the diversification of the economies and expansion of exports, particularly those of a non-traditional nature, of the nations of the Caribbean and Central America is linked directly to fair access to the markets of the United States.
"(3) generic changes in the trade laws of the United States do not discriminate against imports from designated beneficiary countries in relation to imports from other United States trading partners."


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Rockford Fosgate R400-4D - Of boost @ 45hz. On-board peq punch equalization with 18 db. New rockford fosgate prime 400 watt Class D 4 channel Amplifier Tri-stage protection covers thermal, over-current and short circuits. Top mounted controls. 12db/octave crossover. Low pass frequencies 50 - 500 hz high pass Frequencies 50 - 500 Hz Bass Boost Frequency 45 Hz.
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MEGA INT'L TRADING GROUP, INC. R1200-1D - Frequency response: 20-250 Hz. New rockford fosgate prime 1200 Watt Class D 1 channel Amplifier Misfit power and output stages. Preamp-level inputs and outputs 4-gauge power and ground leads recommended -wiring and hardware not included with amplifier.
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Rockford Fosgate R500X1D Prime 1-Channel Class D Amplifier - Power wire gauge- 4 AWG. Remote plc punch level control 0 /180 phase switch real time output and power supply thermal sensing Cast aluminum heatsink 4 Gauge power/ground connectors MOSFET power supply Over current protection Short circuit protection Muted turn on 1 Year Standard Warranty Misfit power and output stages.
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SoundBox Connected ECK4 - This kit includes all the needed wires and accessories to complete the job. The premium heat tested in-line agu fuse holder provides maximum protection for your power wire and the included twisted pair RCA cables allows for the best signal pass through. Onboard 12db/octave lp/hp/ap crossover & infrasonic filter.
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SoundBox Connected 4 Gauge Amp Kit Amplifier Install Wiring Complete 4 Ga Installation Cables 2200W - Preamp-level inputs and outputs 4-gauge power and ground leads recommended -wiring and hardware not included with amplifier. With its 2300 watt peak power handling you are sure to give your amplifier the power in needs. 16 gauge brown/silver speaker wire: 17 Feet / 18 Gauge Blue Remote Wire: 18 Feet. Black/white triple shielded Twisted Pair RCA Interconnect: 17 Feet.
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Rockford Fosgate RFI-20 - 300 watts x 1 @ 4-ohms, 500 watts x 1 @ 2-ohms, frequency 20Hz to 250Hz +/-1dB. High efficiency amplifier design that reduces current consumption from the charging system. Since day one, we have spearheaded the car audio revolution. On-board punch eq with +18db boost at 45Hz. 16 gauge brown/silver speaker wire: 17 Feet / 18 Gauge Blue Remote Wire: 18 Feet.
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Rockford Fosgate R750-1D - Onboard 12db/octave lp/hp/ap crossover & infrasonic filter. Rfi-20 High efficiency amplifier design that reduces current consumption from the charging system. Input sensitivity: 150 mV to 4 V. Optional remote PEQ Level control. 300 watts x 1 @ 4-ohms, 500 watts x 1 @ 2-ohms, frequency 20Hz to 250Hz +/-1dB. Twisted Pair Interconnects.
Installation accessories/ Connectors / Terminals, Wire Ties and Wire Loom Included. Includes wired remote punch Level Control. Cast aluminum Heatsink with Stealth top mounted control panel. Preamp-level inputs and outputs 4-gauge power and ground leads recommended -wiring and hardware not included with amplifier.
Rockford Fosgate Prime 750 Watt Class D 1 channel Amplifier - Suggested Alternator-75 A. On-board punch eq with +18db boost at 45Hz. New rockford fosgate prime 750 Watt Class D 1 channel Amplifier Misfit power and output stages. Frequency response: 20-250 Hz. 4 gauge red cca copper clad aluminum power wire: 17 Feet / 4 Gauge Black CCA Copper Clad Aluminum Ground Wire: 3 Feet.
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Suggested Alternator-75 A. 300 watts x 1 @ 4-ohms, 500 watts x 1 @ 2-ohms, frequency 20Hz to 250Hz +/-1dB. Twisted Pair Interconnects. 1" treated PEI dome tweeter. Rfi-20 Cast aluminum Heatsink with Stealth top mounted control panel. Preamp-level inputs and outputs 4-gauge power and ground leads recommended -wiring and hardware not included with amplifier.
Rockford Fosgate Punch P165-SE 240W 6.5" Punch Series Euro Fit Compatible 2-Way Component System w/ External Crossover Network - 20-feet twisted pair signal cable. Ofc oxygen free Copper for corrosion resistance. High efficiency amplifier design that reduces current consumption from the charging system. Frequency response: 20-250 Hz. Rockford P1 6. 5" ecc component speakers misfit power and output stages.
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300 watts x 1 @ 4-ohms, 500 watts x 1 @ 2-ohms, frequency 20Hz to 250Hz +/-1dB. Injection molded mineral filled polypropylene cone. Linear high excursion matched motor magnetics and suspension design. High efficiency amplifier design that reduces current consumption from the charging system. Rfi-20 Optional remote PEQ Level control.
LEIGESAUDIO Copper 0/2/4 Gauge in 4/8/10 Gauge Out Amp Power Distribution Block for Car Audio Splitter 1 in 2 Out - Input sensitivity: 150 mV to 4 V. Includes wired remote punch Level Control. 16 gauge brown/silver speaker wire: 17 Feet / 18 Gauge Blue Remote Wire: 18 Feet. Black/white triple shielded Twisted Pair RCA Interconnect: 17 Feet. Preamp-level inputs and outputs 4-gauge power and ground leads recommended -wiring and hardware not included with amplifier.
Onboard 12db/octave lp/hp/ap crossover & infrasonic filter.
Rockford Fosgate RFI-16 - Installation accessories/ Connectors / Terminals, Wire Ties and Wire Loom Included. Nothing has changed. Tri-stage protection covers thermal, over-current and short circuits. On-board peq punch equalization with 18 dB of boost at 45Hz. 1" treated PEI dome tweeter. 16-feet twisted pair signal cable. Ofc oxygen free Copper for corrosion resistance.
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16 gauge brown/silver speaker wire: 17 Feet / 18 Gauge Blue Remote Wire: 18 Feet. Tri-stage protection covers thermal, over-current and short circuits. On-board peq punch equalization with 18 dB of boost at 45Hz. High performance Copper Car Audio Power Distribution Block. Power wire gauge- 4 AWG. Twisted Pair Interconnects.
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InstallGear IG14100 - 10 feet in length. Optional remote PEQ Level control. 100 feet 305m. Variable crossover 12dB/octave slopes. Dual twist design for excellent noise cancellation. Rfi-20 Twisted Pair Interconnects. Woven outer sheild for durability. Power wire gauge- 4 AWG. High efficiency amplifier design that reduces current consumption from the charging system.
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The cover is made of High Strength, Nonperishable Industrial-grade Plastic. Suggested Alternator-75 A. 300 watts x 1 @ 4-ohms, 500 watts x 1 @ 2-ohms, frequency 20Hz to 250Hz +/-1dB.

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