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INJURIA SINE DAMNUM (Complete notes with Famous Cases) : Grab the Notes From Here.
Damnum Sine Injuria means damage without injury(infringement of legal rights).In other words,Causing of damage,however substantial,to another person is not actionable in law unless there is also a violation of legal rights.Therefore,there will be no compensation for the plaintiff,if he has not suffered any legal injury.
Glaucester Grammar School Case : The defendant has setup a rival school for teaching grammar near the plaintiff’s grammar school due to which the plaintiff suffered the loss as his students started joining defendant’s school.Due to this competition,plaintiff have to even lower down the fees of his school.
So,Plaintiff sued the defendant to seek compensation,but no compensation was given as there is no legal injury has happened to plaintiff.
Ushaben v. Bhagya Laxmi Chitra Mandir : Plaintiff sued the defendant for permanent injunction as movie,”JAI SANTOSHI MAA” was hurting the religious sentiments as Goddess were depicted as jealous.
No compensation was given as there wasn’t any legal injury to plaintiff.
Robinson v. Kilvert (BROWN PAPER CASE) : There was a two floor building where the defendant owns the ground floor where as the plaintiff owns the upper floor.Plaintiff use to do some work related to brown paper(highly flammable) whereas defendant use to do sort of work that produces heat.One day,due to heat production,plaintiff’s brown paper caught fire and everything got burnt.
No Compensation was given as the heat produced wasn’t extra ordinary.It was plaintiff’s mistake that he kept the brown paper on the floor even after knowing that there are chances of burning.Also there was no legal injury faced by plaintiff.
Mogul Steamship Co. v. McGregor’s Crew & Co. : All the steamship companies united and drove the plaintiff’s company out of the tea trade by reducing their freights due to which plaintiff suffered loss.
No Compensation was given as the other companies are only doing marketing practises and also there wasn’t any injury to the plaintiff.
Chasemore v. Richards : The defendant sank a well quarter a mile of a mill away from a natural stream & pumped up water for supply to neighboring town,due to which plaintiff was not getting the sufficient amount of water as he was getting earlier from the stream.Plaintiff’s mill was a lot dependent on water and because of shortage of water he suffered loss.He filed a suit against defendant.
No compensation was given because there was no legal right violated by defendant,i.e,there was no injury.
Other referred cases are for Damnum Sine Injuria’s Notes are Bradford Corporation v. Pickles and VishnuDutt v. Board of HS.

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COMMONWEALTH vs. THOMAS L. LAFLEUR.
Present: MASON, BERRY, & KAFKER, JJ.
Practice, Criminal, Motion to suppress, Admissions and confessions. Constitutional Law, Admissions and confessions.
COMPLAINT received and sworn to in the Wareham Division of the District Court Department on February 8, 2002.
A pretrial motion to suppress evidence was heard by Rosemary Minehan, J.
An application for leave to prosecute an interlocutory appeal was allowed by Martha B. Sosman, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.
Tracy L. Bulger, Assistant District Attorney, for the Commonwealth.
Paul Alan Bogosian for the defendant.
not been given Miranda warnings, was in custody when he made the statements. We reverse.
The judge found the following facts, none of which is alleged to be clearly erroneous: Police Officer Stephen Joy was dispatched to the scene of a two-car accident where he observed the defendant seated in the driver's seat of one of the cars. The officer noted that the defendant appeared to be "dazed and confused" and that his breath smelled of alcohol. Although he had a severe laceration on his forehead, the defendant attempted to get out of his car. Officer Joy prevented him from doing so until emergency medical technicians (EMT) arrived.
Upon their arrival, EMT personnel removed the defendant from his vehicle, strapped him to a stretcher, and placed him in an ambulance. In response to an EMT's question about what had happened, the defendant stated, "I had too much to drink." The EMT informed Officer Joy of this statement, and the officer asked the defendant what he had had to drink. The defendant answered that he had consumed alcoholic beverages at two local establishments during the evening. When the officer asked him if the alcohol had affected his ability to operate his motor vehicle, the defendant responded that it probably had affected his ability to drive. The defendant was thereafter taken to the hospital. Officer Joy asked similar questions of the defendant in the emergency room. The defendant gave the same answers. In addition, at the emergency room, the officer also administered a field sobriety test to the defendant, asking him to recite the alphabet. The defendant failed the test. Officer Joy did not read the defendant his Miranda rights at any time before questioning him.
The motion judge concluded that when the officer first noticed the odor of alcohol on the defendant's breath, he had reasonable suspicion that the defendant had committed a crime, and when he questioned the defendant while he was strapped to a stretcher, the defendant was in custody, and entitled to Miranda warnings. The judge therefore suppressed the defendant's statements to the officer at the accident scene and the hospital.
principles to those facts. Commonwealth v. James, 427 Mass. 312 , 314 (1998). As the judge's fact-finding is not contested, the question becomes whether these facts establish that the defendant was in custody when the questioning occurred.
The "safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.' " Commonwealth v. Morse, 427 Mass. 117 , 123 (1998), quoting from Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Ordinary traffic stops, including those involving operators suspected of driving under the influence, have not been held to be custodial. See Berkemer v. McCarty, 468 U.S. at 437-439; Vanhouton v. Commonwealth, 424 Mass. 327 , 331, cert. denied, 522 U.S. 834 (1997); Commonwealth v. Cameron, 44 Mass. App. Ct. 912 , 914 (1998). The same is true for many Terry [Note 1] stops, where police "may detain [a] person briefly in order to 'investigate the circumstances that provoke suspicion.' " Berkemer v. McCarty, supra at 439, quoting from United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975). Moreover, the Court in Berkemer analogized traffic stops to the "comparatively nonthreatening character" of Terry stops and commented on "the absence of any suggestion in our opinions that Terry stops are subject to dictates of Miranda." Berkemer v. McCarty, supra at 440. Compare Commonwealth v. Gordon, 47 Mass. App. Ct. 825 , 827 (1999), quoting from United States v. Bautista, 684 F.2d 1286, 1291 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983) ("Miranda warnings are necessary even during a Terry stop if the suspect has been taken into custody or if the questioning otherwise takes place in a police dominated or compelling atmosphere").
custody"). Through a multi-factor inquiry, [Note 2] the courts focus on whether the interrogation took place in a "police-dominated atmosphere," Miranda v. Arizona, 384 U.S. 436, 445 (1966), where "inherently compelling pressures . . . work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. at 467. In concluding that ordinary traffic stops were not custodial, the Supreme Court emphasized that such stops tend to be brief and public with one or at most two officers present and therefore quite different from station house interrogation. Berkemer v. McCarty, 468 U.S. at 437-438.
In Wilson, the Eighth Circuit Court of Appeals emphasized that a reasonable person would expect that restraint by ambulance personnel would "last only for the time that is medically necessary and would feel free to leave after then." Moreover, as the physical restraint on the defendant was applied by ambulance attendants for medical purposes, rather than by law enforcement officers for investigative purposes, "[a] reasonable person would perceive this detention as imposed only for purposes of a medical examination, not a police interrogation." Id. at 690. Finally, the detention's occurring in public and in the presence of medical attendants "reduces the likelihood that law enforcement agents will use oppressive or abusive tactics and renders the situation less 'police-dominated.' " Ibid. The court concluded that the concerns triggering Miranda protections -- that compelling and lasting pressure would work to undermine the individual's will to resist questioning -- were therefore not present.
[Note 1] Terry v. Ohio, 392 U.S. 1 (1968).
[Note 2] See, e.g., Commonwealth v. Groome, 435 Mass. 201 , 211-212 (2001) (inquiry whether an interrogation is custodial focuses on " the place of the interrogation;  whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect;  the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed;  whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest").
[Note 3] In that case, although the defendant was also taken to the hospital, there was no issue regarding questioning there. In the instant case, we need not address the legality of the questioning at the hospital as there is no argument that the questions or answers were any different there than at the accident site, with the exception of the alphabet test, which is nontestimonial. See Vanhouton v. Commonwealth, 424 Mass. at 335-336. As a result, the statements at the hospital were merely repetitive and cumulative of statements at the accident scene. Furthermore, the judge's fact-finding regarding the circumstances of the questioning in the emergency room was quite limited.
[Note 4] The ambulance attendants were not agents of the police. Commonwealth v. McCambridge, 44 Mass. App. Ct. 285 , 289-290 (1998).
[Note 5] We note that because the trial judge suppressed the statements based on the failure to give Miranda warnings, she did not address the voluntariness of the statements. The issue of voluntariness was raised in the motion to suppress but was not developed in an affidavit or at the hearing on the motion. With this limited record, we decline to address the defendant's appellate argument as to the voluntariness of the statements. Of course, if a substantial claim of involuntariness is a live issue at trial, the issue must be addressed by the judge prior to the admission of the statements. Commonwealth v. Brady, 380 Mass. 44 , 48 (1980).

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In November, the German Data Protection Conference (committee of the independent German federal and state data protection supervisory authorities) (“DSK”) published a guidance on the processing of personal data for direct marketing purposes under the GDPR. This guidance finally brings some light into the darkness of marketing under the GDPR.
DSK has a rather broad understanding of the term “marketing” that also includes customer satisfaction surveys as well as emails for Christmas or birthday parties.
Direct marketing activities require a balancing of interests whereby comprehensive and transparent information on the processing of personal data as required under Arts. 13 and 14 will help justify the marketing. The balancing of interests should particularly take into account the reasonable expectations of the data subject.
Direct marketing is generally permissible if the processing for marketing is fair, proportionate in relation to the marketing purpose, and transparent.
Special categories of personal data pursuant to Art. 9 GDPR can only be used for marketing purposes based on explicit consent.
The provisions on the change of purpose pursuant to Art. 6 para 4 GDPR apply if personal data initially not obtained for marketing purposes is to be used for marketing purposes. The data controller must conduct a compatibility test to assess whether the marketing purposes are compatible with the initial purpose.
Sending non-individualized marketing material relating to similar products/services previously purchased.
Categorizing certain consumer groups by adding common criteria (added by Orrick: for example, age or interests).
More intrusive measures, such as automated selection procedures for the creation of detailed profiles, behavioral prognoses and analyses that lead to additional findings; in such case, the DSK considers this to be a profiling, which requires consent, not only a balancing of interest.
The creation of a profile based on marketing material from third-party resources, e.g., social networks.
In the case of a data disclosure to third parties for marketing purposes and the use of address data sourced from third parties, the DSK refers to recital 47 of the GDPR and thus recommends considering whether there is a relationship between the data subject and the data controller and further refers to the requirements pursuant to Art. 6 para 4 GDPR.
The DSK further argues that the use of personal data for marketing is not justifiable based on the balancing of interest test, should the individual marketing method not comply with applicable unfair and deceptive trade practice law. For example, the German Law against Unfair and Deceptive Trade Practices (“UWG”) stipulates specific requirements for marketing on the different channels, e.g., telephone, email, and mail. If a marketing activity does not fulfill these requirements, it would not be permissible under the GDPR either.
Email marketing towards existing customers if the email address was obtained within a business relationship and if the customer has been properly informed pursuant to Art. 13 GDPR.
Telephone marketing towards other market participants if their implied consent can be presumed.
Telephone marketing towards consumers without their explicit consent.
Email marketing to customers without consent or a previous business relationship (see exception above).
Any marketing communication where the identity of the sender, on whose behalf the communication is transmitted, is concealed or kept secret.
The DSK acknowledges the practical difficulties of providing all necessary information at the time when personal data is obtained, particularly in regard to analogous marketing (added by Orrick: for example, certain marketing raffles or sweepstakes). Hence, the DSK now supports layered privacy statements as initially proposed by the Article 29 Data Protection Working Party (“WP 260”).
Identity of the controller; contact data of the controllers’ DPO; indication of the legitimate interest if the processing is based thereon; recipients or categories of recipients of personal data; transfer to third countries; right to object pursuant to Art. 21 GDPR; information on access to further mandatory information.
The data controller must be a specific natural or legal person and provide his/her complete address. Short names (e.g., XY-Group) are not sufficient to fulfill the information requirements.
Handing over a business card can be deemed as providing consent to receiving marketing if there is no indication that someone hands over the business card of another person.
Double-Opt-In Procedure is required for electronic consent in order to verify the data subjects’ statement.
Double-Opt-In Procedure is not sufficient for justifying telephone marketing with numbers obtained from a website. In this case, the controller needs the data subjects’ consent in writing.
Consent provided for email marketing given 17 months ago and not used yet is no longer a legal justification for direct marketing since the data subject cannot reasonably expect to be contacted after such a long period of time without receiving marketing information from the data controller.
The DSK considers a period of 17 months to be reasonable for using contact data for marketing purposes. If the data controller has not made use of the data within this period of time, he can no longer process the data on the basis of his legitimate interests since the interests of the data subject prevail against the interests of the data controller.
This period can be even shorter under specific circumstances.
Processing mail address data obtained in the context of promotional competitions or catalog requests for marketing purposes is justifiable if the data controller fulfills his information duty towards the data subject.
Publication of contact data in a telephone directory if the customer requested the publication.
Data obtained from an imprint, since such data is made public due to a legal obligation.
Tell-a-friend marketing, since the processing is not deemed to be fair and transparent.
Recommendation marketing, i.e., providing the opportunity for users to enter the email address of a friend so that the friend then receives an unsolicited recommendation email.
The DSK elaborates on the data controllers’ obligations in regard to the right to object pursuant to Art. 21 GDPR. For reasons of accountability, the DSK recommends including a reference to the right to object in every marketing communication. According to Art 21 para 4 GDPR, this right must be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information and shall, e.g., not be “hidden” in extensive terms and conditions.
In order to efficiently grant the data subject’s rights, the DSK requires the data controller to investigate a data subject’s actual intention, i.e., if he wants his data to be deleted or if he does not want to be targeted with marketing communication in the future.
If the data subject does not want to be targeted with marketing communication in the future, he/she must be included in a blacklist for marketing purposes. Maintaining such a blacklist is admissible under the GDPR. Data subjects shall be informed if they are included in this list.
If a data subject explicitly requires only the deletion of his data, he/she will not be included in the blacklist and can therefore be targeted with marketing in the future. Hence, he/she shall be informed that he/she might receive marketing again later on.
Already commenced marketing campaigns do not need to be immediately suspended as the data subject reasonably expects that such campaigns cannot be stopped without further ado.
In order to prevent unnecessary complaints, one shall issue an individual response for every data subject, including a confirmation of the objection and a period of time in which the data subject still might receive marketing communication.
Check if you your marketing campaigns also involve customers and business partners in Germany. In this case, your marketing campaign must comply with the afore mentioned requirements.
If not already done, this guidance is a good starting point to adapt your marketing campaigns to the rules and requirements of the GDPR. When in doubt, do not hesitate to obtain legal advice.
Have a particular look at measures, such as automated selection procedures for the creation of detailed profiles, behavioral prognoses and analyses that lead to additional findings. Such measures may also be considered profiling, which requires consent, not only a balancing of interest. Also the creation of a profile based on marketing material from third-party resources, e.g., social networks, may require consent.
In the case of a data disclosure to third parties for marketing purposes and the use of address data sourced from third parties, carefully assess whether there is a relationship between the data subject and the data controller. Conduct a compatibility test to assess whether the marketing purposes are compatible with the initial purpose and assess whether the requirements pursuant to Art. 6 para 4 GDPR are met.
Having GDPR-compliant marketing campaigns in place is crucial for businesses, as failure to comply with these requirements might result in fines up to €20 million, or 4% annual global turnover—whichever is higher.
This entry was posted in Data Privacy, Europe, International, Technology and tagged • Data Privacy, Direct Marketing, GDPR, General Data Protection Regulation. Bookmark the permalink.

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in fine


Maximum), The District Court Could Not Find Mr.
The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. A timely notice of appeal from the final judgment of the district court having been filed on August 11, 2000, this Court has jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Whether, under the reasoning of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), drug type is an element under 21 U.S.C.
§ 841, such that it was error for the district court to convict and sentence Mr. xxxxx under the crack statute based solely on the court's own preponderance finding that the substance was crack when Mr. xxxxx specifically declined to admit the substance was crack at his guilty plea.
Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.
Disposition in the Court Below.
Mr. xxxxx was arrested on October 26, 1999, and, two months later, on December 22, 1999, entered a plea of guilty to Count One, with the government agreeing to dismiss Count Two. On July 27, 2000, the Honorable Richard W. Roberts sentenced Mr. xxxxx to 120 months in prison and five years of supervised release. (Appx:38-44). Mr. xxxxx filed a timely notice of appeal. (Appx:45-46).
MS. ALVA: Mr. xxxxx is prepared to plead guilty to Count 1 and that is distribution of cocaine base. The phrase "also known as crack," is something that Mr. xxxxx is not going to admit to and is not required under the statute.
THE COURT: Okay. When I said, "also known as crack," I guess I was lifting that from the charge in the indictment, but also paraphrasing how some believe cocaine base is also known as. But I do understand that you are proposing to plead guilty to Count 1 of the indictment insofar as it charges you with unlawfully knowingly and intentionally distributing cocaine base, at least, within the District of Columbia on, or about December 11th.
That I have - based on the sentence that - plea I agreed to, that I'm looking at anywhere from ten years to life. Based on certain point schedules, there's a possibility that I might be able to get - you may be able to give me less than that, or - but no more than life. That's basically what I'm understanding.
Had the case against Mr. xxxxx proceeded to trial, the government would have shown beyond a reasonable doubt that between October and December of 1996, the defendant and a confidential police informant, acting under government auspices[,] engaged in several audiotaped conversations during which they discussed whether the defendant had any crack available for sale to the informant.
On October 10th, 1996, the defendant indicated that he had obtained a supply of crack and agreed to sell the informant some of that supply at a specific time and place. However, the defendant did not appear for that meeting and no sale occurred on that date.
On December 11th, 1996, Mr. xxxxx again made arrangements to sell a quantity of crack to the informant. Thereafter, Mr. xxxxx met the informant in the vicinity of the eleven hundred block of Eighth Street, Northeast, Washington, D.C. and sold the informant 55.4 grams of cocaine base, which is also known as crack, in exchange for one thousand, five hundred and forty dollars.
This sale was recorded by law enforcement officers on both audio and videotape.
THE COURT: Was this substance analyzed by the Drug Enforcement Administration?
[AUSA]: It was. It was analyzed to be 55.4 grams of cocaine base.
MS. ALVA: Your Honor, if I could also again interject at this point, the government in its factual proffer on three occasions substituted the word "crack," or read the word, "crack," without the word "cocaine" and then ultimately described the analysis as 55.4 grams of cocaine base, also known as crack.
Mr. xxxxx is prepared to admit as reflected in the DEA 7 that he distributed 55.4 grams of cocaine base, but we are not admitting at this point that the substance was crack.
(Plea Tr:22). With that caveat, the court accepted Mr. xxxxx's plea of guilty to distribution of cocaine base. (Plea Tr:25-26).
The Presentence Report concluded that the offense involved 55.4 grams of "cocaine base, also known as crack" and therefore set Mr. xxxxx's base offense level at 32 pursuant to U.S.S.G. § 2D1.1(c)(4). (PSR ¶ 19 (Sealed Appx:6)). With a three-level reduction for acceptance of responsibility bringing his offense level to 29, and 4 criminal history points putting him in Criminal History Category III, the PSR calculated Mr. xxxxx's guideline range as 108-135 months, adjusted to 120-135 months due to the 10-year mandatory minimum. (PSR ¶ 60 (Sealed Appx:14)).
In her objections to the PSR (Appx:15; Sealed Appx:20) and in her sentencing memorandum (Sealed Appx:25-27), defense counsel argued that the government had not proven that the substance was the "crack" form of cocaine base. Given that the DEA chemist's analysis had simply described the material as "off-white granular matter" containing "cocaine base," counsel objected to use of the base offense level for crack and to application of the 10-year mandatory minimum applicable to crack. (Sealed Appx:26-27, 36 (DEA-7)). Defense counsel argued that the base offense level for 50-100 grams of "cocaine" (U.S.S.G. § 2D1.1(c)(12)) should apply, yielding a base offense level of 16, rather than 32. (Sealed Appx:27). (2) Counsel cited United States v. Munoz-Realpe, 21 F.3d 375, 377-79 (11th Cir. 1994), for the proposition that "cocaine base" under 21 U.S.C. § 841(b)(1)(A)(iii) means "crack" (as it does under the sentencing guidelines (U.S.S.G. § 2D1.1(c), Note D)), and, therefore, the 10-year mandatory minimum should not apply in this case. (Sealed Appx:27).
The government responded by arguing that (1) Mr. xxxxx admitted that he was subject to a 10-year mandatory minimum in the plea letter and during the plea colloquy; (2) the statutory term "cocaine base" is not limited to "crack" as it is for guidelines purposes; and (3) the material was "crack." (Appx:19-24).
At the sentencing hearing, the government put on testimony from the DEA chemist and one of the officers involved in the undercover buy. The chemist, Robert Kessler, was qualified as an expert in the field of forensic chemistry. (Sent'g Tr:5). He testified that cocaine base can come in the form of a paste, be dissolved in liquid, be ground up, or be put into "almost any form that a substance can appear in." (Sent'g Tr:5). In the laboratory, he most commonly sees cocaine base in a "granular" form (as it was in this case). (Sent'g Tr:5, 7). He explained that he uses the term "granular" to describe a substance having a consistency like salt (Sent'g Tr:16-17), but also testified that what he refers to as "granular matter" is "commonly referred to as rocklike substance" and that the "street name" for cocaine base in that form is "crack cocaine." (Sent'g Tr:5-6). See also Sent'g Tr:7 (DEA-7 description of substance in this case as being "off-white granular matter" is description he uses "for substances that I determine to be cocaine base, or crack cocaine."); Sent'g Tr:23 (substance he analyzed is commonly referred to as "crack cocaine"). But see Sent'g Tr:11 ("crack is a street term. I, as a chemist, don't really use that now"); Sent'g Tr:13 ("I would never call [something] crack cocaine because I am a scientist and then that is a street term"). He testified that the exhibit in this case contained 55.4 grams of "cocaine base" with a purity of 87%. (Sent'g Tr:8). He found no trace of sodium bicarbonate or other substance used to convert cocaine hydrochloride (powder cocaine) to cocaine base. (Sent'g Tr:8, 13-15).
Investigator Clarence Brooks of the Metropolitan Police Department testified that he observed and listened to the undercover buy from another car. (Sent'g Tr:27). Afterwards, he performed a field test on the purchased substance that showed a positive color reaction for "cocaine." (Sent'g Tr:27, 34). In the DEA-7 he prepared for submission to the laboratory, he described it as "several large white rock matter" and, in the column for "alleged drugs," he put "crack cocaine." (Sent'g Tr:29-30, 34; Sealed Appx:36). Although he testified that the substance was "smokeable" and is "commonly referred to on the street" as "crack cocaine" (Sent'g Tr:30, 37), he also acknowledged that "I couldn't tell you what the substance actually is. All I know, I conducted a preliminary field-test which yielded a positive color reaction for cocaine." (Sent'g Tr:35). Brooks also acknowledged that, while the confidential informant asked for "crack," Brooks did not think that Mr. xxxxx ever used that word. (Sent'g Tr:36).
Thus, after the court's finding that the substance was "crack," it concluded that the mandatory minimum would apply and that the guideline range of 108-135 would have to be modified to 120-135. See Sent'g Tr:75 ("having found that the substance was the crack form of cocaine base, we are within the statutory mandatory minimum such that even the calculation of the  at the low end under the guidelines has to be subject then to being replaced with the floor of  months that's called for by the statutory mandatory minimum"). Because Mr. xxxxx had too many criminal history points to be eligible for the safety valve, the court was not able to consider a downward departure based on Mr. xxxxx's medical condition, which the court noted might otherwise be available. (Sent'g Tr:75-76). Noting that it was "handcuffed in what I can or cannot do," the court imposed what it believed was statutorily required - a 10-year mandatory minimum sentence. (Sent'g Tr:80). The court also ordered five years of supervised release. (Sent'g Tr:81). Mr. xxxxx filed a timely notice of appeal. (Appx:45-46).
§ 841(b)(1)(A)(iii) on which the court entered judgment.
Because Mr. xxxxx did not knowingly waive his right to jury trial on the crack element at the time of his plea (indeed, because the plea was entered pre-Apprendi, no one knew that drug type was an element), it is now plain that the court violated his jury trial and due process rights when it found the element and convicted and sentenced him under § 841(b)(1)(A)(iii). Because Mr. xxxxx's sentence is greater than it would have been if he had been convicted and sentenced under § 841(b)(1)(C) (both because his guideline range fell below what the court erroneously believed to be the statutory minimum prison term and because his supervised release term exceeds the correct statutory maximum), he has shown prejudice sufficient to require a remand for correction of his judgment and resentencing.
THE DRUGS WERE CRACK AT HIS GUILTY PLEA.
Defense counsel consistently challenged the government's claim that the material at issue was "crack," preserved the argument that the term "cocaine base" in 21 U.S.C.
§ 841(b)(1)(A)(iii) means "crack" (as it does for guidelines purposes), and argued that the drug type finding must be made by a standard greater than a mere preponderance. (Plea Tr:14-15, 22; Appx:15; Sealed Appx:20, 25-27; Sent'g Tr:41-49, 60-61).
Defense counsel also noted that, under Apprendi, which had been decided only one month before Mr. xxxxx's sentencing and had not been decided at the time his sentencing memorandum had been filed, facts that enhance a defendant's sentence are elements that must be proved to a jury beyond a reasonable doubt. See Sent'g Tr:60-61. She relied on Apprendi as support for her argument that the court could not apply a mere preponderance of the evidence standard in making the drug type finding. (Sent'g Tr:61).
context "for a resentencing is nowhere near as costly or as chancy an event as a trial").
B. "Cocaine Base" In 21 U.S.C. § 841 Means "Crack."
As argued by defense counsel below, "cocaine base" as used in the federal drug statutes means "crack" (as it does in the Sentencing Guidelines).
In light of the fact that "cocaine base" is simply another term for plain "cocaine," there is a facial ambiguity in Congress's attempt to treat "cocaine base" more harshly than "cocaine [or] its salts." By referring to the "salts" of cocaine in § 841(b)(1)(A)(ii)(II), Congress clearly intended to punish powder cocaine at the lower penalty level. What is ambiguous is Congress's inclusion of the same substance -- "cocaine" and "cocaine base" -- in both penalty levels. Clearly, Congress did not intend to punish all forms of cocaine base at the higher level or it would not have also included that substance in the lower level under the label "cocaine." Courts have avoided this ambiguity (and the application of the rule of lenity) by looking to the structure of the statute and its legislative history and determining that, when Congress provided enhanced penalties for "cocaine base" it was not referring to all forms of cocaine base (which are already covered under the penalty provision for "cocaine"), but only to the form of cocaine base known as "crack cocaine."
[T]he only rational interpretation that we can give this statute as a whole is to conclude that clause (ii) addresses cocaine powder and the other forms of cocaine identified therein, except for "crack" cocaine which is expressly separately addressed in clause (iii). . . . [O]ur interpretation is confirmed by the legislative history of the statute [which] demonstrates that Congress intended, with the enactment of clause (iii), to penalize more severely violations involving crack cocaine.
The history of the ADAA [Anti-Drug Abuse Act of 1986] reveals that Congress was targeting crack cocaine when it passed the stiffer sentencing provisions for "cocaine base." . . . We agree with the Fisher court's reasoning. . . . [I]t is clear that Congress intended the enhanced penalties to apply to crack cocaine and the lesser penalties to apply to all other forms of cocaine. . . . Thus, we hold that the sentencing provisions for "cocaine" and "cocaine base" are not ambiguous because although the terms have the same scientific meaning, both Congress and the Sentencing Commission intended "cocaine base" to mean crack cocaine.
See also (Darryl) Jackson, 84 F.3d at 1159-60 (rejecting rule of lenity because, as government argued, "'Congress intended "cocaine base" to mean crack.'") (quoting Booker, 70 F.3d at 493); United States v. (Allen) Jackson, 64 F.3d 1213, 1219 (8th Cir. 1995), cert. denied, 516 U.S. 1137 (1996) (rejecting rule of lenity because "It was clear to Congress, just as it always has been clear to cocaine traffickers and cocaine users, that there are important differences between cocaine and crack cocaine, the latter being the only form of cocaine base to which the stiffer penalties formulated by the Sentencing Guidelines apply") (citing U.S.S.G. § 2D1.1(c) (1993))(emphasis added).
The prosecutor acknowledged at the sentencing hearing that "[Congress] intended by the statute to punish more severely crack cocaine" and that "it's clear from the legislative history that that's what they were after and they were after a smokeable form of cocaine . . . ." (Sent'g Tr:50-51). The prosecutor argued, however, that although "Congress did in the legislative history intend to punish more harshly crack cocaine," they chose to use the broader "chemical term 'cocaine base,'" and therefore "the term should be given its scientific meaning." (Sent'g Tr:53). The problem with this "scientific" reading of the term "cocaine base" is that it renders the statute ambiguous in that it already provides a lesser penalty for a substance - "cocaine" - that has the very same scientific meaning. As recognized by Fisher, Booker, (Darryl) Jackson, and (Allen) Jackson, the statute only makes sense if "cocaine base" is interpreted in accord with what the government has acknowledged was Congress's legislative intent to single out the "crack" form of cocaine base for harsher punishment.
In response to an inter-circuit conflict over the meaning of "cocaine base," the Sentencing Commission clarified in 1993 that "cocaine base" should not be given its scientific meaning, but rather should be limited to the substance with the street name "crack:"
§ 2D1.1], means "crack." "Crack" is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.
By allowing the amendment to take effect, Congress has given its imprimatur to the new definition of "cocaine base"; Congress indicated that it intends the term "cocaine base" to include only crack cocaine. . . . There is no reason for us to assume that Congress meant for "cocaine base" to have more than one definition.
Thus, in order to avoid statutory ambiguity, and consistent with Congress's original legislative intent, and its subsequent action in allowing Amendment 487 to take effect, it is necessary to read the statutory term "cocaine base" to be limited to that form of cocaine base known as "crack."
10-Life for 50 Grams or More - a Class A Felony) When Mr. xxxxx Only Admitted The Elements Of A Lesser Statute (§ 841(b)(1)(C) - Maximum of 20 Years for Less Than 500 Grams of Cocaine - a Class C Felony).
After the guilty plea in this case, but shortly before sentencing, the Supreme Court decided Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Apprendi, like this case, involved a guilty plea to a crime with a lesser penalty range than the crime for which the trial court ultimately sentenced the defendant. The Apprendi Court held that, under the Constitution's due process and jury trial guarantees, "'facts that increase the prescribed range of penalties to which a criminal defendant is exposed'" must be assessed by the jury and must be found beyond a reasonable doubt. 120 S. Ct. at 2363 (quoting concurring opinion in Jones v. United States, 526 U.S. 227, 252-53 (1999)) (emphasis added). Put another way, when a fact "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict," such fact "is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." Id. at 2365 & n.19 (emphasis added). As such, it cannot be found by the court, but must be found by a jury beyond a reasonable doubt, or admitted by the defendant as part of a guilty plea to the greater crime.
In Apprendi, the defendant pleaded guilty to possession of a firearm for an unlawful purpose (a second-degree offense carrying a prison term of 5-10 years). But because the sentencing court found as fact that the crime was motivated by racial bias, it applied New Jersey's hate-crime statutory enhancer, increasing the penalty range to 10-20 years (the same as for a first-degree offense). The Supreme Court held that because the fact of racial bias increased the statutory maximum to which Apprendi was exposed, it was the functional equivalent of an element and therefore could not be found by the sentencing court.
This error qualifies as "plain error" because it is both obvious and prejudicial. Defense counsel disputed that the material was crack, argued that the enhanced statutory penalties of § 841(b)(1)(A)(iii) should not be applied, and argued that, under Apprendi, facts that enhance a sentence are elements that must be found by a jury beyond a reasonable doubt. While counsel did not take the next step and argue that the court was therefore precluded from finding the crack element itself, that conclusion is now plain.
§ 841 that must be found by a jury. See, e.g., United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000); United States v. Nordby, 225 F.3d 1053, 1059-62 (9th Cir. 2000) (finding sentencing judge's determination of drug quantity plain error). See also Meshack, 225 F.3d at 575 (Fifth Circuit not reaching issue since government conceded Apprendi rule applies to § 841). Quite obviously, a court accepting a guilty plea cannot convict a defendant of an offense greater than that to which he pleaded guilty based on the court's finding of an additional element - at least absent a knowing waiver of the right to jury trial on that element.
Our duty, in light of [Apprendi's] clear dictate . . ., is to examine whether the sentencing factor in this case was a factual determination, and whether that determination increased the maximum penalty for the crime charged in the indictment. We find that the statute at question here today, 21 U.S.C. § 841, provides for a factual determination of whether the distribution of drugs caused death or serious bodily injury, and that the factual determination significantly impacts the sentence imposed by the court, increasing the maximum penalty from 20 years to that of life imprisonment. We conclude that pursuant to her plea agreement, Rebmann waived her right to a jury trial of the issue of whether her distribution of heroin caused the death. However, we find that Rebmann did not waive the right to have a court decide any remaining elements of the offense beyond a reasonable doubt, as opposed to making those determinations by a mere preponderance of the evidence. Because the provisions at issue are factual determinations and because they increase the maximum penalty to which Rebmann was exposed, we find that they are elements of the offense which must be proven beyond a reasonable doubt.
226 F.3d at 524-25 (emphasis added). Unlike the defendant in Rebmann, Mr. xxxxx did not make a knowing waiver of his right to jury trial on the drug type element. His plea agreement did not expressly provide that the judge would be making that finding and did not explain that his statutory maximum would go up if the court concluded that the material was "crack." Indeed, it is difficult to see how a defendant could knowingly waive his right to jury trial on an element that the law did not recognize as an element at the time of his plea.
In the plea letter, Mr. xxxxx agreed to enter a plea to a violation of § 841(b)(1)(A)(iii), and acknowledged his understanding that that charge carried a statutory maximum of life. Because Mr. xxxxx declined at the plea hearing to admit that the substance was crack, however, no such plea was entered. What matters is not what offense the parties thought Mr. xxxxx was pleading guilty to, but what offense he actually pleaded guilty to, i.e., what elements he was told he was charged with and did, in fact, admit. See Fed. R. Crim. P. 11(c)(1) (defendant must be told "nature of charge to which the plea is offered"); Fed. R. Crim. P. 11(f) (court may not enter judgment upon plea absent factual basis for plea). Cf. United States v. DeWalt, 92 F.3d 1209, 1212-14 (D.C. Cir. 1996) (although defendant attempted to plead guilty to possession of unregistered sawed-off shotgun, this Court vacated conviction under Rule 11(c)(1) where failure to inform him of one of the elements was raised for first time on appeal); United States v. Idowu, 105 F.3d 728, 729-32 (D.C. Cir. 1997) (although defendant attempted to plead guilty to 8 U.S.C. § 1326(a), this Court allowed him to withdraw plea when appellate counsel discovered legal argument that § 1326 violation required fact that defendant did not admit and he had therefore "pled guilty to something that may not be a crime"). Here, Mr. xxxxx did plead guilty to a crime, but it was a lesser crime than the one the court convicted him of and nowhere in the plea colloquy did he agree to allow the court to do so.
sentence Mr. xxxxx for a crime greater than that to which he pleaded guilty.
Likewise, Mr. xxxxx can demonstrate that the court's error in finding the crack element caused him prejudice. As a result of the court's finding of that disputed element, he was sentenced under § 841(b)(1)(A)(iii) to a mandatory minimum term of 120 months. But for the court's finding of that element, he would have been sentenced at the guideline range of 108-135 months, (11) or possibly below that range if the court had accepted his downward departure arguments (which became moot when the court ruled that the statutory minimum applied). Moreover, he was sentenced to the statutory maximum supervised release period for a Class A felony (5 years), when he should have been sentenced to the statutory maximum for a Class C felony (3 years). This is not a situation in which the element at issue was uncontested and thus the failure to obtain a jury finding (or formal admission) on the element could be considered harmless beyond a reasonable doubt. Cf. Neder v. United States, 527 U.S. 1 (1999) (failure to instruct jury on element harmless where element was not disputed). Mr. xxxxx's failure to admit the crack element was not a technical oversight but a result of his consistent denial that the material was crack. The court's finding of that element in the face of that denial impaired Mr. xxxxx's right to a jury trial and due process and caused him substantial prejudice in the form of a more severe sentence than he would otherwise have received.
§ 841(b)(1)(A)(iii) must be vacated with instructions to enter judgment under § 841(b)(1)(C), and resentence him under that statute to between 0 and 20 years in prison with 3 years of supervised release.
D. Although Mr. xxxxx Is Not Challenging The Court's Preponderance Crack Finding For Purposes Of Setting His Guidelines Range, For Purposes Of His Statutory Penalties, Assuming The Court Was Permitted To Find The Crack Element, It Could Only Do So Under The Beyond A Reasonable Doubt Standard.
In the alternative, if this Court concludes that Mr. xxxxx, like the defendant in Rebmann, waived his right to jury trial on the disputed element, a remand is nevertheless necessary since it is clear under Apprendi and Rebmann that the district court erred in evaluating the crack element under a mere preponderance of the evidence standard. Under those cases, if the court is permitted to find the crack element at all, it may do so only if it concludes that the material was crack beyond a reasonable doubt.
Because this claim was fully preserved by defense counsel, (12) a remand is required unless the government can establish that the court's error was harmless beyond a reasonable doubt. That it cannot do. Whether the cocaine base was in the form of "crack" was a hotly disputed issue at sentencing. As in Rebmann, the evidence was sufficiently ambiguous that it is possible that the court could have found that the material was crack under the preponderance standard, yet not be convinced of that fact beyond a reasonable doubt (or even by clear and convincing evidence). See Rebmann, 226 F.3d at 522 (proof that defendant's heroin distribution caused ex-husband's death was of such a nature that "elevating the government's burden of proof from that of preponderance of the evidence to reasonable doubt could in fact [a]ffect the outcome of this case").
Specifically, the DEA-7 is ambiguous in that the officer who submitted the substance described it as "several large white rock matter" (Sealed Appx:36), yet the chemist who analyzed it described it as "granular matter" (id.) and testified that, by "granular," he meant a substance with the consistency of salt (Sent'g Tr:16-17). The chemist's description does not meet the description of crack set forth in the guidelines, which notes that it "usually appear[s] in a lumpy, rocklike form." U.S.S.G.
§ 2D1.1(c), Note D (crack is "usually prepared by processing cocaine hydrochloride and sodium bicarbonate").
Moreover, the chemist's testimony as to whether the substance was "crack" had to be considered in light of his undisputed testimony that, from the standpoint of chemical composition (his area of expertise), crack and cocaine base are identical, and his disclaimer that "I would never call [something] crack cocaine because I am a scientist and that is a street term" (Sent'g Tr:13). Conversely, the police officer qualified his testimony by acknowledging, "I couldn't tell you what the substance actually is. All I know, I conducted a preliminary field-test which yielded a positive color reaction for cocaine." (Sent'g Tr:35). Given this state of the record, the government cannot show beyond a reasonable doubt that the district judge would have found the material to be crack if it had applied the beyond a reasonable doubt standard. At a minimum, therefore, a remand for that purpose is required. See Rebmann, 226 F.3d at 525 (remanding for determination whether Leonard Rebmann's death was caused by defendant's distribution of heroin beyond a reasonable doubt).
§ 841(b)(1)(A)(iii) must be vacated and the case remanded for resentencing under § 841(b)(1)(C). Failing that, the case must be remanded for the sentencing court to evaluate the drug type evidence under the beyond a reasonable doubt standard and, if the court does not find that the substance was "crack" beyond a reasonable doubt, vacation of his § 841(b)(1)(A)(iii) conviction and resentencing under § 841(b)(1)(C).
I hereby certify that the foregoing Brief for Appellant Albarado xxxxx contains 7966 words.
I hereby certify that two copies of the foregoing Brief for Appellant Albarado xxxxx have been served by first-class mail, and one copy of the accompanying Appendix, and one copy of the accompanying Sealed Appendix, have been served by hand on Assistant United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., 8th Floor, Washington, D.C., 20001, this 2nd day of March, 2001.
1. "Appx:__" refers to pages of Appellant's Appendix filed with this brief. "Sealed Appx:__" refers to pages of Appellant's Sealed Appendix, which contains his Presentence Report, sealed Sentencing Memorandum, and letters submitted for his sentencing. Pages of the guilty plea transcript are cited as "Plea Tr:__." Pages of the sentencing transcript are cited as "Sent'g Tr:__."
2. Counsel also argued that Mr. xxxxx's Criminal History Category should be I, rather than III, an issue not part of this appeal.
3. The court noted that the government had sustained its burden "beyond just a preponderance" and offered to further quantify its finding, but neither party requested any additional finding. (Sent'g Tr:55, 57-58).
4. Defense counsel did argue that, under the recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), facts that enhance a sentence are "elements" that must be found by a jury beyond a reasonable doubt. However, she used Apprendi to argue that the judge must apply an enhanced standard of proof to its crack finding before applying the enhanced statutory penalties, rather than to argue that the court could not apply the enhanced statutory penalties at all since it would be unconstitutional for the court to find an element and thereby convict and sentence a defendant on a crime greater than that to which he pleaded guilty. See Sent'g Tr:60-61 (defense counsel arguing that, under Apprendi, "if it enhances [the] sentence, then it's an element of the offense where a jury has to . . . find it beyond a reasonable doubt;" Apprendi therefore supports argument "that if you are going to use a fact to enhance a sentence, and in this case we are talking about . . . for purposes of a mandatory minimum sentence, that the proof must be higher and that it should not be simply preponderance of the evidence").
5. Booker and other courts have relied on the testimony in United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994), in which three experts - one DEA chemist, one expert called by the court, and a defense expert - all agreed that the terms "cocaine" and "cocaine base" are synonymous. 70 F.3d at 490.
6. Because cocaine/cocaine base is a base, it reacts with acids to produce "salts." For example, what is popularly known as "powder cocaine" is in fact a cocaine "salt" -- cocaine hydrochoride (C17H22ClNO4) -- that is formed by reacting hydrochloric acid with cocaine/cocaine base. See, e.g., Booker, 70 F.3d at 490-91. As explained by chemist Kessler in this case, "cocaine base would have a certain number of carbon[s,] hydrogens, nitrogens, and oxygens. And cocaine hydrochloride would have the same number of carbon[s,], hydrogens, nitrogens, and oxygens, plus an [H]Cl molecule . . . which is a [hydro]chloride molecule." (Sent'g Tr:18). The "crack" form of cocaine base is made by adding water and a base substance such as sodium bicarbonate to powder cocaine to create a solution with a basic pH level, which frees up the hydrochloride molecule, leaving behind the insoluble cocaine/cocaine base, which is extracted in the "crack" form by air-drying or microwaving the solution. (Sent'g Tr:8-9, 13-14, 18).
7. The argument made in Edwards was apparently that the statutory terms "cocaine" and "cocaine base" are ambiguous because "cocaine base and powder cocaine are pharmacologically indistinguishable." 98 F.3d 1368 (emphasis added). This argument was based on an incorrect factual premise (in fact, cocaine powder is C17H22ClNO4; cocaine and cocaine base are C17H21NO4), but presumably the Court would have resolved the problem the same way - by limiting the term "cocaine base" to "crack" - if the argument had been made correctly, i.e., the statutory terms "cocaine" and "cocaine base" are ambiguous because those substances are pharmacologically indistinguishable.
8. Indeed, even before Amendment 487, the guidelines equated "cocaine base" with "crack." See § 2D1.1, Application Note 10 (Drug Equivalency Tables) ("1 gm of Cocaine Base ('Crack') = 20 kg of marihuana").
9. Because he did not admit the substance was "crack," and because the amount was under the 500 gram cutoff for an enhanced sentence for "cocaine" (§ 841(b)(1)(B)(ii)), Mr. xxxxx's plea did not subject him to a statutorily enhanced sentence but was simply a plea to distribution of "a controlled substance in schedule I or II" in violation of § 841(b)(1)(C).
10. Under § 841(b)(1)(C), the supervised release term authorized is "at least 3 years," but under 18 U.S.C.
11. Mr. xxxxx is not appealing the court's finding by a preponderance that the material was "crack" for purposes of the Sentencing Guidelines. The Supreme Court in Apprendi made clear that courts may consider such facts when choosing a sentence within an authorized statutory range. Apprendi, 120 S. Ct. at 2365 n.19. See also McMillan v. Pennsylvania, 477 U.S. 79, 87-88 (1986) (judge could find fact as "sentencing factor" where, unlike here, it "did not alter the maximum penalty for the crime committed" but "operate[d] solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it").
12. Defense counsel clearly objected to the court's use of the preponderance standard for the purposes of either the guidelines or the statute. On appeal, we do not press the guidelines claim but have shown that the court erred in enhancing Mr. xxxxx's statutory penalties based on a fact found by a mere preponderance. Since that objected-to error requires a remand, it does not matter that counsel initially requested a clear and convincing standard of proof (Sent'g Tr:41) and only later brought Apprendi's reasonable doubt standard to the court's attention (Sent'g Tr:60-61). On remand, the court should apply the constitutionally required standard of proof beyond a reasonable doubt.


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After graduating in 2000 from Saint Petersburg State Polytechnic University (M.S., department of computing machinery, complex, systems and networks) he continued his education in Saint Petersburg State University of Economics and Finances and received his degree of an appraiser of intangible assets. In 2009 obtained a Bachelor`s degree from the Russian State Institute of Intellectual Property. Speaks English.
He started his working activity in the field of protection of intellectual property in 1992. He practiced in many aspects of intellectual property with particular emphasis on mechanical inventions, utility models, trademarks and related litigation. His technical, management and intellectual property background merge to provide excellent advice tailored to augment corporate strategies in the field of intellectual property. Mr. Fedotov is registered to practice before Russian Patent Office. In 2008 founded with Fedotova Natalia an Intellectual Property Bureau “FEDOTOV & PARTNERS”. Constantly raises his professional level participating in different conferences and seminars.
Mr. Fedotov is a president of Saint-Petersburg Сollegium of patent attorneys.
Natalia V. Fedotova obtained a M.A. degree in studies of culture from the Saint Petersburg University of Culture and Fine Arts and a Bachelor`s degree in jurisprudence from the Russian State Institute of Intellectual Property. Speaks English and Italian.
Natalia V. Fedotova has been working in the sphere of trademark protection since 2003. Having acquired wide experience in legal protection of trademarks she was registered as a Trademark Attorney in 2008. Ms. Fedotova received substantial knowledge in virtually all phases of trademark practice including the preparation of opinions on the registrability of marks, filing and prosecution of applications for registration in Russia and internationally. Her focus is made also on intellectual property litigation at the Chamber of Patent Disputes and Arbitration Court of the Russian Federation. In 2008 founded with Andrey A. Fedotov an Intellectual Property Bureau “FEDOTOV & PARTNERS”. Constantly raises her professional level participating in different conferences and seminars.
Ms. Fedotova is a member of Saint-Petersburg Сollegium of patent attorneys.
In 2010 Irina V. Kuchumova graduated from the State Herzen Pedagogical University with honors. She obtained a master's degree in Pedagogy as a "teacher of the English language" and a "high school teacher".
In 2017 Ms. Kuchumova has attended the course for raising qualifications in the Russian State Institute of Intellectual Property.
Irina V. Kuchumova has been working in the sphere of trademark protection and defense since 2011. At the moment she concentrates her practice on legal protection of trademarks in Russian Federation and other countries. Her focus is also made on the aspects of computer programs and databases legal protection. Ms. Kuchumova raises her professional level expanding her practice, reading professional literature, participating in different conferences and seminars.
Ms. Kuchumova is a member of Saint-Petersburg Сollegium of patent attorneys.
In 1988, Natalia Vladimirovna Beresneva graduated from the Leningrad Institute of Fine Mechanics and Optics with a degree in Optical Instrument-Making and Optoelectronic Instrument-Making (qualification: an optical engineer-designer), in 1989 – the Central Institute on Advanced Training of in the Field of Patent Work.
Natalia Vladimirovna Beresneva has practical experience in the field of protection of intellectual property rights in such industries as instrument making and mechanical engineering, electric power industry, radio electronics, and medicine. Since 1988, Natalia V. Beresneva has been working as a design engineer, patent specialist, chief specialist in intellectual property at enterprises of instrument-making and power engineering industries. Her focus has been made on patent research, patenting inventions and utility models, creating trade secret patented subjects, registering computer programs and databases. As a patent expert of “FEDOTOV & PARTNERS”, Natalia V. Beresneva concentrates her practice on patenting inventions and utility models in Russia. Main areas of work: carrying out patent information retrieval, analysis of application documentation, patenting.
Leading Expert in Copyright and Related Rights.
In 2009, she graduated from the Russian State Academy of Intellectual Property.
Specializes in legal protection and in copyright and related rights protection. Has extensive experience in supporting transactions of any complexity degree. Carries out execution, registration and recognition of copyright, conducts examination of copyright and other contracts.
In 2006, she graduated from the All-Russian State University of Justice (RLA of Justice) majoring in Civil Law.
In 2003 Alexander V. Kuchumov graduated from the State Herzen Pedagogical University. He obtained a bachelor's degree in Pedagogy as a "teacher of geography and biology".
In 2002 he graduated the reserve-officer training department and was qualified as a military psychologist.
Since 2017 Alexander V. Kuchumov assumes the duty of clerical and administrative support in order to optimize workflow procedures in the office.
In 2017, he graduated from the Federal State Autonomous Educational Institution of Higher Education “Saint-Petersburg National Research University of Information Technologies, Mechanics and Optics” (ITMO University) majoring in Nuclear Energy and Thermal Physics.
In 2018, Vladimir V. Verushkin took professional development course under the additional professional training program Patent Specialist (Intellectual Property Specialist) at the Federal State Autonomous Educational Institution of Higher Education “Saint-Petersburg National Research University of Information Technologies, Mechanics and Optics”.
Since 2017, he has been working at FEDOTOV AND PARTNERS IPO, LLC. He specializes in the legal protection of inventions and utility models within the territory of the Russian Federation and in other countries. He is engaged in claim settlement work for the intellectual property rights protection.
Mr. Revinskiy obtained a M.S. degree in radio engineering from Moscow aviation institiute. He continued his education in Central Institute for raising the level of professional skills in the sphere of intellectual property.
Mr. Revinskiy has a wide scientific and practical experience in the sphere of protection of intellectual property in the different fields of science such as informatics, electronics, laser technology, medical equipment.
He worked as a patent examiner at the Federal Service for Intellectual Property, Patents and Trademarks in the department of radio engineering.
Mr. Revinskiy is the author of more then 60 scientific works in the sphere of patent law particularly in the sphere of computer programs protection.
As a consultant of “FEDOTOV & PARTNERS” IPB Mr. Revinskiy concentrates his practice on counseling and representing Clients in domestic and international patent procurement.
Marina V. Kolpakova obtained a M.Sc. degree in mechanical engineering from Leningradsky Electrotechnical Institute of Connection named after M. A. Bonch-Bruevich. She continued her education in Central Institute For Raising The Level Of Professional Skills in the sphere of intellectual property.
Ms. Kolpakova`s professional experience covers almost every aspects of the intellectual property protection including inventions, utility models, designs and trademarks. With a background of a practicing mechanical and research engineer, she has gained a great experience in patent prosecution in the areas of mechanics, mining engineering, building industry, informatics, electronics, laser technology, medical equipment.
Marina V. Kolpakova worked as a patent agent, as a Patent Attorney and as a Head of Patent Department in one of the Research Institutes of Saint-Petersburg. Kolpakov`s special areas included the preparation of opinions on patentability, conducting of patent researches, prosecution of patent applications.

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Hot Topic Highlight - Business Rates - What is a Hereditament?
Woolway (VO) v. Mazars  and the Staircase Tax have been a rating hot topic over the last 5 years.
They are also likely to be one of the main areas of questioning for the Local Taxation and Assessment RICS APC competency.
What is a hereditament and why is this important?
Business rates and technical jargon go together hand in hand. You need to know these basic definitions to satisfy level 1, as well as being able to apply these to achieve levels 2 (doing) and 3 (giving reasoned advice). In this blog article, we will focus on the term, hereditament.
Hereditament means ‘an inheritable property’ and stems from the Latin word hērēditāmentum, meaning to inherit. Today, and in this context, it means a property which is assessed for rating purposes.
How is a hereditament defined by legislation?
However, since the Poor Relief Act 1601 which originally introduced the concept of business rates, there hasn’t been a single piece of legislation which adequately defines what a hereditament is.
Unhelpfully (and confusingly), the Local Government and Finance Act 1988 (the cornerstone of modern rating), simply refers back to the General Rate Act 1967, which in turn refers back to the Rating and Valuation Act 1925 and the Rating Act 1874. Although the Rating Act 1874 does mention hereditament a number of times, it doesn’t actually define it.
The Rating and Valuation (Apportionment) Act 1928 does try to define the term, but only really goes half way. It states ‘where two or more properties within the same curtilage, or contiguous to one another, are in the same occupation…’ ‘…they shall be treated as if they formed parts of a single hereditament’.
What happens where this doesn’t apply?
The 1928 Act fails, however, to deal with the situation where two properties are not within the same curtilage or are not contiguous to one another.
Of course, if two elements are occupied by different parties or are occupied by the same party, and are put to wholly different uses to one another, then they will always be considered as two hereditaments.
Does case law deal with this issue?
From the 1900’s to the 1950’s, various cases dealt with this issue. However, things really started changing in 1957 in the case of Gilbert v. Hickinbottom .
What happened in Gilbert v Hickinbottom ?
The Court of Appeal, lead by Lord Denning, heard Gilbert v. Hickinbottom  which concerned a bakery on one side of a public highway and a mechanic’s workshop, which serviced the bakery’s vans, on the other side of the road.
Should the two properties have been assessed as one hereditament or two?
The case turned on whether the two properties should be assessed as one hereditament or two.
The court considered that the first test should be the geographic – do the two elements touch one another or not? If so, then it is likely that they should be assessed as one hereditament. If not, then it is likely that they should be assessed as two.
However, there is an element of flexibility with that rule – ‘in such cases the two properties on either side of the road are so essentially one whole – by which I mean, so essential in one use the one to another – that they should be regarded as one single hereditament’.
As such, the court determined that the mechanic’s workshop was so essential to the operation of the bakery that the bakery could not exist without it and, as such, that the two properties should be assessed as one hereditament. This rule became known as ‘functional essentiality’.
What other case law should I be aware of?
This was a ground-breaking case at the time, and, one which has changed the face of rating law ever since.
Midland Bank v. Lanham (VO)  – applying the rule to a bank with associated training suites where it was held that the two elements were functionally essential and should be assessed as one.
Trunkfield (VO) v. Camden London Borough Council  – applying the rule to offices that were contiguous but only by a party wall, and did not have interconnectivity between them, where it was held that the two elements should be separately assessed.
Vtesse v. Bradford (VO)  – which concerned fibre optic cables and asked whether cables linking two geographically remote offices together fulfilled the geographical test, the answer was a resounding no!
In our next two business rates blog articles, we will focus on the Woolway (VO) v. Mazars  case and the Staircase Tax.

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[258 U.S. 280, 281] Mr. Wm. C. Herron, of Washington, D. C., for the United states.
[258 U.S. 280, 282] Mr. Thomas C. Spelling, of New York City, for defendant in error.
This case is here under the Criminal Appeals Act. 34 Stat. 1246 (Comp. St. 1704). The statute involved is the Narcotic Drug Act of December 17, 1914, c. 1, 2, subd. 'a,' 38 Stat. 785, 786 (Comp. St. 6287h).
This statute, in section 2, subdivision 'a,' makes it an offense to sell, barter, exchange, or give away any of the narcotic drugs named in the act except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. It is further provided that nothing in the section shall apply to the dispensing or distribution of any of the drugs to a patient of a registered physician in the course of his professional practice only, or to the sale, dispensing or distribution of said drugs by a dealer to a consumer in pursuance of a written prescription issued by a physician registered under the act. [258 U.S. 280, 286] The indictment charges that the defendant did unlawfully sell, barter, and give to Willie King a compound, manufacture, and derivative of opium, to wit, 150 grains of heroin and 360 grains of morphine, and a compound, manufacture, and derivative of coca leaves, to wit, 210 grains of cocaine, not in pursuance of any written order of King on a form issued for that purpose by the Commissioner of Internal Revenue of the United States; that the defendant was a duly licensed physician and registered under the act, and issued three written orders to the said King in the form of prescriptions signed by him, which prescriptions called for the delivery to King of the amount of drugs above described; that the defendant intended that King should obtain the drugs from the druggist upon the said orders; that King did obtain upon said orders drugs of the amount and kind above described pursuant to the said prescriptions; that King was a person addicted to the habitual use of morphine, heroin, and cocaine, and known by the defendant to be so addicted; that King did not require the administration of either morphine, heroin, or cocaine by reason of any disease other than such addiction; that defendant did not dispense any of the drugs for the purpose of treating any disease or condition other than such addiction; that none of the drugs so dispensed by the defendant was administered to or intended by the defendant to be administered to King by the defendant or any nurse, or person acting under the direction of the defendant, nor were any of the drugs consumed or intended to be consumed by King in the presence of the defendant, but that all of the drugs were put in the possession or control of King, with the intention on the part of the defendant that King would use the same by self-administration in divided doses over a period of several days, the amount of each of said drugs dispensed being more than sufficient or necessary to satisfy the craving of King therefor, if consumed by him all at one [258 U.S. 280, 287] time; that King was not in any way restrained or prevented from disposing of the drugs in any manner he saw fit; and that the drugs so dispensed by the defendant were in the form in which said drugs are usually consumed by persons addicted to the habitual use thereof to satisfy their craving therefor, and were adapted for such consumption.
The question is: Do the acts charged in this indictment constitute an offense within the meaning of the statute. As we have seen, the statute contains an exception to the effect that it shall not apply to the dispensing or distribution of such drugs to a patient by a registered physician in the course of his professional practice only, nor to the sale, dispensing, or distribution of the drugs by a dealer to a consumer under a written prescription by a registered physician. The rule applicable to such statutes is that it is enough to charge facts sufficient to show that the accused is not within the exception. United States v. Cook, 17 Wall. 168, 173.
The District Judge who heard this case was of the opinion that prescriptions in the regular course of practice did not include the indiscriminate doling out of narcotics in such quantity to addicts as charged in the indictment, but out of deference to what he deemed to be the view of a local District Judge in another case announced his willingness to follow such opinion until the question could be passed upon by this court, and sustained the demurrer. In our opinion the District Judge who heard the case was right in his conclusion and should have overruled the demurrer.
It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense. If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent. United States v. Smith, 2 Mason, 143, Fed. Cas. No. 16,338; United States v. Miller, Fed. Cas. No. 15,775; United States v. Jacoby, Fed. Cas. No. 15,462; United States v. Ulrici, Fed. Cas. No. 16,594 (opinion by Miller, Circuit Justice); United States v. Bayaud (C. C.) 16 Fed. 376, 383, 374; United States v. Jackson (C. C.) 25 Fed. 548, 550; United States v. Guthrie (E. C.) 171 Fed. 528, 531; United States v. Balint & Randazzo, 258 U.S. 250 , 42 Sup. Ct. 301, 66 L. Ed. --, this day decided.
It may be admitted that to prescribe a single does, or even a number of doses may not bring a physician within the penalties of the act; but what is here charged is that the defendant physician by means of prescriptions has enabled one, known by him to be an addict, to obtain from a pharmacist the enormous number of doses contained in 150 grains of heroin, 360 grains of morphine, [258 U.S. 280, 289] and 210 grains of cocaine. As shown by Wood's United States Dispensatory, a standard work in general use, the ordinary does of morphine is one-fifth of a grain, of cocaine one-eighth to one-fourth of a grain, of heroin one- sixteenth to one-eighth of a grain. By these standards more than 3,000 ordinary doses were placed in the control of King. Undoubtedly doses may be varied to suit different cases as determined by the judgment of a physician. But the quantities named in the indictment are charged to have been intrusted to a person known by the physician to be an addict without restraint upon him in its administration or disposition by anything more than his own weakened and perverted will. Such so-called prescriptions could only result in the gratification of a diseased appetite for these pernicious drugs or result in an unlawful parting with them to others in violation of the act as heretofore interpreted in this court within the principles laid down in the Webb and Jin Fuey Moy Cases, supra.
We hold that the acts charged in the indictment constituted an offense within the terms and meaning of the act. The judgment of the District Court to the contrary should be reversed.
If this case raised a question of pleading I should go far in agreeing to disregard technicalities that were deemed vital a hundred or perhaps even fifty years ago. But we have nothing to do with pleading as such, and as the Judge below held the indictment bad it can be sustained only upon a construction of the statute different from that adopted below.
The indictment for the very purpose of raising the issue that divides the Court alleges in terms that the drugs [258 U.S. 280, 290] were intended by the defendant to be used by King in divided doses over a period of several days. The defendant was a licensed physician and his part in the sale was the giving of prescriptions for the drugs. In view of the allegation that I have quoted and the absence of any charge to the contrary it must be assumed that he gave them in the regular course of his practice and in good faith. Whatever ground for scepticism we may find in the facts we are bound to accept the position knowingly and deliberately taken by the pleader and evidently accepted by the Court below.
It seems to me impossible to construe the statute as tacitly making such acts, however foolish, crimes, by saying that what is in form a prescription and is given honestly in the course of a doctor's practice, and therefore, so far as the words of the statute go, is allowed in terms, is not within the words, is not a prescription and is not given in the course of practice, if the Court deems the doctor's faith in his patient manifestly unwarranted. It seems to me wrong to construe the statute as creating a crime in this way without a word of warning. Of course the facts alleged suggest an indictment in a different form, but the Government preferred to trust to a strained interpretation of the law rather than to the finding of a jury upon the facts. I think that the judgment should be affirmed.
Mr. Justice McREYNOLDS and Mr. Justice BRANDEIS concur in this opinion.

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