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Justia › US Law › US Case Law › US Supreme Court › Volume 260 › Snake Creek Mining & Tunnel Co. v. Midway Irr. Co.
Snake Creek Mining & Tunnel Company v.
Under the law of Utah, an appropriation of the water of a natural stream to a beneficial use so far attaches to underground waters feeding the stream by percolation through adjacent public lands that one who, as an incident to mining operations after those lands have become private, intercepts and collects such percolating waters by a tunnel is not entitled to sell to others the right to use on distant lands the waters so collected, and thus injuriously diminish the supply of the prior appropriator. P. 260 U. S. 598.
Certiorari to a decree of the circuit court of appeals reversing a decree of the district court, in a suit to determine conflicting claims to underground waters.
This is a suit to determine conflicting claims to underground waters collected and brought to the surface by a mining tunnel in Utah. The plaintiff (petitioner here) is a mining company incorporated in Delaware, and the defendant an irrigation company incorporated in Utah. Each seeks to have the right to use the waters quieted, in itself, as against the other. The district court, with some hesitation, gave a decree for the mining company, which the circuit court of appeals reversed, with a direction that one for the irrigation company be given. Midway Irr. Co. v. Snake Creek Mining & Tunnel Co., 271 F. 157. A writ of certiorari brings the case here. 256 U.S. 687.
The mining company owns and operates a mine in a mountain along a tributary of the Provo River and, in furtherance of its mining operations, has driven a tunnel 14,500 feet into the mountain from a portal near the stream. The tunnel intercepts and collects waters percolating through the bosom of the mountain and conveys them to the portal, whence they now flow into the stream. The tunnel was begun in 1910, and these waters are intercepted and collected along its course after it gets well into the mountain. The mining company owns a tract of land surrounding the portal, and we assume it has a right of way for the tunnel beyond that tract, although this does not appear. It has not used and does not now use any of the waters in connection with its tunnel or mine, but asserts an exclusive right to them, and has arranged, and is intending, to sell to others the right to use them for irrigating distant lands.
public lands of the United States, the irrigation company or its stockholders appropriated all the waters of the stream for irrigation and other beneficial uses, and under that appropriation these waters long have been applied and devoted to such uses on the lands of the stockholders some distance down stream from the portal of the tunnel.
The waters intercepted and collected by the tunnel are percolating waters, which before it was driven found their way naturally, but not in a defined channel, through the rocks, gravel, and soil of the mountain into open springs near the stream, and thence by surface channels into the stream. At all seasons, this was one of the stream's sources of supply, and, in the late summer and early fall, one of its most dependable sources. The amount of water so naturally finding its way underground into the springs, and thence into the stream, has been materially diminished by the tunnel, the diminution conforming substantially to the discharge at the portal. All the natural flow of the stream as it was before the tunnel was driven is required to satisfy the prior appropriation of the irrigation company or its stockholders, and to irrigate the lands of the latter, to which it long has been applied, and, unless the waters so intercepted and collected by the tunnel be permitted to flow from its portal into the stream in such way that they can be used under the prior appropriation, a material part of the lands heretofore reclaimed and irrigated thereunder will be without water, and their cultivation must be discontinued.
stockholders before the lands through which the tunnel extends became private lands.
The parties, while agreeing that the Utah law is controlling, differ as to what that law is. On the part of the mining company, it is contended that, when the tunnel site was acquired and the tunnel driven, Utah had adopted and was applying the common law rule respecting underground waters; that, by that rule, such waters, where not moving in a known and defined channel, are part of the land in which they are found, and belong absolutely to its owner, and that, if the law of Utah in this regard has since been changed, rights vested before the change are not affected by it. On the part of the irrigation company, it is insisted that the common law rule never was adopted or in force in Utah; that her law always has regarded waters percolating underground, where within the public lands, as open to appropriation for irrigation or other beneficial uses, subject only to a reasonable use of them in connection with the land in which they exist by whoever may come to own it, and that her law likewise has regarded an appropriation of the natural flow of a surface stream as reaching and including its underground sources of supply within the public lands, subject only to the qualification just indicated.
Utah is within the semiarid region of the West, where irrigation has been practiced from the time of the earliest settlements and is indispensable to the cultivation of the lands. She was made a territory in 1850 and became a state January 4, 1896. While she was a territory and most of the lands within her borders were part of the public domain, Congress passed three acts which require notice.
"Wherever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same."
purposes subject to existing rights."
"the obvious purpose of Congress was to give its assent, so far as the public lands were concerned, to any system, although in contravention of the common law rule, which permitted the appropriation of the waters for legitimate industries."
"A right to the use of water for any useful purpose, such as . . . irrigating lands, . . . is hereby recognized and acknowledged to have vested and accrued, as a primary right, . . . under any of the following circumstances: First -- whenever any person or persons shall have taken, diverted, and used any of the unappropriated water of any natural stream, watercourse, lake, or spring, or other natural source of supply. . . ."
It was in the presence of these enactments, congressional and territorial, and prior to any decision thereon in Utah, that the irrigation company or its stockholders made the appropriation in question.
been recognized and applied in this territory, it would still be a desert, for a man owning 10 acres of land on a stream of water capable of irrigating 1,000 acres of land or more near its mouth could prevent the settlement of all the land above him. For, at common law, the riparian proprietor is entitled to have the water flow in quantity and quality past his land as it was wont to do when he acquired title thereto, and this right is utterly irreconcilable with the use of water for irrigation. The legislature of this territory has always ignored this claim of riparian proprietors, and the practice and usages of the inhabitants have never considered it applicable, and have never regarded it."
This ruling has been reaffirmed, but never recalled or qualified.
"The federal government, as proprietor of the public lands, early recognized the necessity of permitting persons in this arid region to acquire an interest in water sources on the public lands distinct from the lands themselves. It had always been the settled law that the owner of land was likewise the owner of all waters situate thereon or percolating therein. This may be said to have been the universal rule in the United States prior to the settlement of California. Local decisions, arising from the necessities of the people, soon altered it there, and in 1866, Congress passed an act,"
one that is recognized by the local customs and laws?"
"In our opinion, wherever the industry of the pioneer has appropriated a source of water, either on the surface of or under the public lands, he and his successors acquire an easement and right to take and use such water to the extent indicated by the original appropriation, and that a private owner who subsequently acquires the land takes it burdened with this easement, and we also hold that this easement carries with it such rights of ingress and egress as are necessary to its proper enjoyment."
"This right of an appropriator is, of course, subject to the rule of law which will permit the owner to sink an adjoining well on his own premises although he should thereby dry up that of the first appropriator."
Shortly after the decision in that case came the constitution of the state, which says (Article 17, § 1): "All existing rights to the use of any of the waters in this state for any useful or beneficial purpose are hereby recognized and confirmed."
having an early appropriation of the natural flow of a surface stream and a mining company having a subsequent patent for adjacent lands pierced by a tunnel which encountered underground waters and conducted them to its portal, whence they flowed into the stream. As here, the mining company had arranged to sell to others the right to use the waters elsewhere. Two matters were in dispute: first, whether the underground waters constituted one of the stream's natural sources of supply, and secondly, if they did, whether the mining company was entitled to take and sell them as against the irrigation company which had appropriated the natural flow of the stream when the lands pierced by the tunnel were public lands. On the first appeal, the judgment of the trial court was reversed and a new trial directed because of incomplete and erroneous findings of fact, but the plain purport of the opinion, which had the approval of all the judges, was that if in fact the waters collected by the tunnel constituted one of the stream's natural sources of supply at the time its natural flow was appropriated by the irrigation company, which was when the lands were part of the public domain, that company had the better right to those waters. On the second appeal, the decision turned chiefly on questions of fact, but the judges, in separate opinions, entered into an extended discussion of the question of law with which we here are concerned. One judge thought the common law rule was in force, and another that it had been rejected, and that the decision on the first appeal had proceeded on that view. The remaining judge left his attitude on the question in some uncertainty. The case settled no principle, and is without force as a precedent. Other cases during the same period are cited by counsel, and particular expressions in the opinions are relied on as making for one view or the other, but it suffices here to say of these cases that they do not show any settled rule of decision.
The later decisions have all tended in one direction, and have resulted in establishing the rule for which the irrigation company contends, and which the circuit court of appeals applied. These decisions frankly deal with the prior situation as we have described it, reaffirm the principles announced in the early cases of Stowell v. Johnson and Sullivan v. Northern Spy Mining Co., point out the dicta and uncertainty in the opinions delivered in several cases, hold that the common law rule is not applicable to the conditions in Utah, and show that it never was definitely adopted or followed there. Mountain Lake Mining Co. v. Midway Irrigation Co., 47 Utah 346; Bastian v. Nebeker, 49 Utah 39; Peterson v. Eureka Hill Mining Co., 53 Utah 70; Stookey v. Green, 53 Utah 311; Rasmussen v. Moroni Irrigation Co., 56 Utah 140; Peterson v. Lund, 57 Utah 162; Horne v. Utah Oil Refining Co. 8 Utah 279.
We conclude, therefore, that the decree of the circuit court of appeals was right.
MR. JUSTICE SUTHERLAND did not take part in the consideration or decision of this case.
Stookey v. Green, 53 Utah 311; Rasmussen v. Moroni Irrigation Co., 56 Utah 140.
Peterson v. Lund, 57 Utah 162; Horne v. Utah Oil Refining Co., 5 Utah 279.
Stookey v. Green, 53 Utah 311, 317.
Stookey v. Green, 53 Utah 311, 318; Horne v. Utah Oil Refining Co., 59 Utah 279.

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David H. Bludworth, State's Atty., and Stephen R. Koons and Joel M. Weissman, Asst. State's Attys., West Palm Beach, for petitioner.
R. William Rutter, Jr., County Atty., and Charles P. Vitunac, Asst. County Atty., West Palm Beach, for respondent.
Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for amicus curiae.
90.14 Witnesses; pay. — Witnesses in all cases, civil and criminal, in all courts, now or hereafter created, and witnesses summoned before any arbitrator or master in chancery shall receive for each day's actual attendance five dollars and also six cents per mile for actual distance traveled to and from the courts.
In general, these amounts are paid by the party calling the witness. But in criminal cases when the defendant is indigent, § 914.11, Fla. Stat. (1977), provides that the costs of witnesses necessary to the defense be paid by the county. A nonindigent criminal defendant would have to pay the prescribed fees in order to subpoena witnesses, but where the defendant is not convicted, "the fees of witnesses and officers" are to be paid by the county. § 142.09, Fla. Stat. (1977).
Palm Beach County v. Rose, 347 So.2d 127 (Fla. 4th DCA 1977).
Does a trial court have inherent power to order prepayment of traveling and lodging expenses to ensure a fair trial to a criminal defendant and the state in excess of the statutory maximum of $5 a day and $.06 a mile when the witnesses are indigent?
Petitioner contends that he should have the power to go beyond the statutory amounts for witness fees and expenses since it is necessary to the performance of the special judicial function of ensuring to both the state and the accused a fair trial of the case. He asserts that this case calls into play the rights of equality before the law, due process, and compulsory process against witnesses guaranteed by sections 2, 9 and 16 respectively, of the Declaration of Rights of the Florida Constitution. Petitioner argues that the protection of these rights, in the last analysis, is the function of courts and that the power to issue the order under consideration is necessary to the performance of this function. Not only is the protection of the rights of the accused at stake, but also the interests of the state in securing a conviction of a guilty party which will not be overturned for failure of a fair trial. Frequently, the ultimate result of a clear denial of due process is freedom for the accused, who may be guilty. Therefore, argues petitioner, it is essential to the judicial function that courts have the inherent power to protect against such a denial, in the interest of both the state and the accused.
"Inherent powers" of courts have been described as "all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the court exists; the court is, therefore it has the powers reasonably required to act as an efficient court." Carrigan, Inherent Powers of the Courts 2 (1973). With regard to inherent power to ensure fair criminal trials, see Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).
The respondent county commission points out that at common law there was no right in an accused to compulsory process against witnesses. It argues that the development of the right of compulsory process against witnesses has not given rise to any right in witnesses to be compensated or in those accused of crime to have their witnesses appear at public expense. The rights of witnesses to compensation and to reimbursement for expenses are purely creatures of statute.
Furthermore, argues respondent, the doctrine of inherent judicial power invoked by petitioner is a derivative of the concepts of separation of powers and judicial independence. As such, it is a very narrow doctrine positing only that courts have authority to do things that are absolutely essential to the performance of their judicial functions. Since the asserted judicial problem of ensuring for the state a fair opportunity to gain a conviction of the accused can be remedied by appropriate legislation and since the judicial function of effectuating the right of compulsory process can be performed through use of the contempt power against the subpoenaed, nonresponding witness, it is not necessary for courts to have the power to order the payment of fees and expenses of witnesses. Fees, concludes respondent, are strictly a legislative matter.
We agree with respondent that the responsibility for the adequate and efficient prosecution of violations of law is a matter lying with the policy-making branches of government. But where the fundamental rights of individuals are concerned, the judiciary may not abdicate its responsibility and defer to legislative or administrative arrangements. We agree with petitioner that this situation involves the right of an accused to compulsory process against witnesses.
The right of one accused of crime to compulsory process for obtaining witnesses in his favor "stands on no lesser footing than the other Sixth Amendment rights that [the United States Supreme Court has] held applicable to the States." Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1022 (1967).
Every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to valid existing laws and constitutional provisions. The doctrine of inherent judicial power as it relates to the practice of compelling the expenditure of funds by the executive and legislative branches of government has developed as a way of responding to inaction or inadequate action that amounts to a threat to the courts' ability to make effective their jurisdiction. The doctrine exists because it is crucial to the survival of the judiciary as an independent, functioning and co-equal branch of government. The invocation of the doctrine is most compelling when the judicial function at issue is the safeguarding of fundamental rights.
8 Fla.Jur. Courts § 74 (1956). Some previous decisions of this Court indicate generally that the will of the Legislature is to prevail on the matter of compensation for court-appointed public prosecutors and defenders. Mackenzie v. Hillsborough County, 288 So.2d 200 (Fla. 1973); Strauss v. Dade County, 253 So.2d 864 (Fla. 1971); Carr v. Dade County, 250 So.2d 865 (Fla. 1971).
"If the separation of powers is to be maintained, it is essential that the judicial branch of government not be throttled by either the legislative or administrative branches, and that the courts be empowered to mandate what is reasonably necessary to discharge their duties." McAfee v. State ex rel. Stodola, 258 Ind. 677, 681, 284 N.E.2d 778, 782 (Ind. 1972).
". . . [T]he Judiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer Justice, if it is to be in reality a co-equal, independent branch of our Government." Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 52, 274 A.2d 193, 197 (1971).
"It is axiomatic that the courts must be independent and must not be subject to the whim of either the executive or legislative departments. The security of human rights and the safety of free institutions require freedom of action on the part of the court. Courts from time immemorial have been the refuge of those who have been aggrieved and oppressed by official and arbitrary actions under the guise of governmental authority. It is the protector of those oppressed by unwarranted official acts under the assumption of authority. Our sense of justice tells us that a court is not free if it is under financial pressure, whether it be from a city council or other legislative body, in the consideration of the rights of some individual who is affected by some alleged autocratic or unauthorized official action of such a body. One who controls the purse strings can control how tightly those purse strings are drawn, and the very existence of a dependent. Justice, as well as the security of human rights and the safety of free institutions requires freedom of action of courts in hearing cases of those aggrieved by official actions, to their injury. Carlson, et al. v. State ex rel. Stodola, 247 Ind. 631, 633-634, 220 N.E.2d 532, 533-534 (Ind. 1966).
But the courts find themselves in the position of one who must play the dual role of being both a referee and a partisan participant in an athletic contest. Like the other two branches, the judiciary is interested in preserving its prerogatives and may sometimes be in an adversary position, vis-a-vis the other branches, with regard to the ongoing contest over governmental power. Yet it is the judiciary that must decide upon the ultimate delineation of power. The doctrine of inherent power should be invoked only in situations of clear necessity. The courts' zeal in the protection of their prerogatives must not lead them to invade areas of responsibility confided to the other two branches. Accordingly, it is with extreme caution that this Court approaches the issue of the power of trial courts to order payments by local governments for expenditures deemed essential to the fair administration of justice. The same extreme caution should be used by trial courts in seeking solutions to practical administrative problems that have not been resolved or provided for by the Legislature.
"It is incumbent upon each department to assert and exercise all its power whenever public necessity requires it to do so; otherwise, it is recreant to the trust reposed in it by the people." State ex rel. Schneider v. Cunningham, 39 Mont. 165, 168, 101 P. 962, 963 (Mont. 1909).
Inherent power should be exercised only after established methods have failed or an emergency has arisen. In re Salary of Juvenile Director, 87 Wn.2d 232, 250, 552 P.2d 163, 173 (Wash. 1976). "Judges should constantly be aware that their constitutional responsibility to maintain the judicial system carries with it the corresponding responsibility to limit their requests to those things reasonably necessary in the operation of their courts and to refrain from any extravagant, arbitrary, or unwarranted expenditures." McAfee v. State ex rel. Stodola, see note 6, above.
The district court reasoned that the use of the contempt power to enforce subpoenas is a workable method of effectuating the rights of the state and the accused to compulsory process against witnesses. Every citizen has a duty to respond to a subpoena regardless of statutory provisions for compensation or expenses. But this solution raises the possibility of serious practical problems. Contempt is an after-the-fact judicial tool that does not avoid disruption and delay of the trial proceedings. The costs of apprehension, incarceration, and transportation of the nonresponding witness will generally be borne by the public in any event. Moreover, to imprison an indigent person for not responding to to a subpoena ordering him to appear in court three hundred miles away would be akin to imprisonment for debt. It would deprive him of liberty without due process of law as surely as would using the contempt power to compel an indigent person to make monetary payments.
Art. 1, § 11 of the Constitution of the State of Florida provides: "No person shall be imprisoned for debt, except in cases of fraud."
See, e.g., Naster v. Naster, 163 So.2d 264 (Fla. 1964).
The amounts provided by the Legislature for witness compensation and travel expenses are probably quite adequate for the vast majority of proceedings. Ordinarily witnesses stay in their own homes and may even work part of the day on which they are testifying. Their travel expenses are minor. Even without compensation giving testimony will not be a major sacrifice. When venue is changed, the fees of witnesses are paid "in like manner as if the trial had not been removed." Usually the witness will only have to travel a few miles to a neighboring county, and will neither lose much working time nor require lodging for an overnight stay. It appears to us that the Legislature in making provision as it has expressed the public will with regard to trials held under normal circumstances.
§ 142.16, Fla. Stat. (1977).
If the statute is deemed to establish an absolute maximum in all situations, then it must be said to improperly infringe the prerogative of the court in effectuating the constitutional right to compulsory process. If, on the other hand, the statute on witness fees is deemed merely declaratory of a guideline pertaining to a matter within the competence of the court to determine, then it need not be declared an infringement. In this most unusual situation where a group of indigent witnesses had to travel three hundred miles and back and be lodged in a large metropolitan area, we construe the statute not to preclude the order entered by petitioner. Expenditure of public funds was required to protect the rights of the defendant. The order requiring payments did not conflict with the Legislature's intention to grant constitutionally sufficient criminal court trials. In this exercise of inherent judicial power we find no conflict between legislative and judicial goals in the administration of justice.
See Simmons v. State, 160 Fla. 626, 36 So.2d 207 (1948).
"A statute which attempts to restrict the inherent powers will be broadly interpreted as laying down reasonable guidelines within which the power operates rather than as a sole or actual source of the power. See, e.g., Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); State ex rel. Bailey v. Webb, 215 Ind. 609, 21 N.E.2d 421 (1939); Bass v. County of Saline, 171 Neb. 538, 106 N.W.2d 860 (1960)." Carrigan, note 3, above, at 8.
Actions taken by trial courts and purporting to be based strictly on inherent judicial authority are subject to judicial review and the burden must be on the issuing court to show that the action is necessary to enable the court to perform one of its essential judicial functions.
The decision of the district court is quashed and, subject to the qualifications set out in this opinion, the certified question is answered in the affirmative.
ADKINS, OVERTON and HATCHETT, JJ., concur.
ENGLAND, C.J., dissents with an opinion, with which SUNDBERG, J., concurs.
I respectfully dissent. The Court's decision today is wholly inconsistent with Mackenzie v. Hillsborough County, 288 So.2d 200 (Fla. 1973), in which the Court refused to increase by judicial fiat a statutory limitation on attorney's fees, saying that "if a change in the [statutory level of] compensation be called for, it is within the province of the Legislature, not the courts, to make such change." 288 So.2d at 201. This case, moreover, is particularly inappropriate for an application of the inherency doctrine. Not only has the legislature spoken directly to the subject matter of these expenses, but it apparently contemplated within the prescribed expense limitation precisely the type of occurrence (change of venue) for which the Court has now supplanted that legislative judgment. See Section 142.16, Florida Statutes (1975).


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The University of Utah is dedicated to providing a safe and healthy environment for its students, faculty, and staff. The illegal use of drugs and alcohol can adversely affect the educational environment and may have devastating effects on the personal lives of those who abuse these substances. For this reason, the University of Utah is a drug free workplace and campus.
The federal Drug-Free Schools and Campuses Act requires institutions of higher education to have a drug and alcohol abuse prevention program (DAAPP). This program must describe: I) legal sanctions under federal, state, and local law for the unlawful use, possession, or distribution of illicit drugs and alcohol; 2) a description of the health risks associated with the use of illicit drugs and the abuse of alcohol; 3) a description of any drug and alcohol programs that are available to employees or students; and 4) a clear statement that the school will impose disciplinary sanctions on students and employees for violations of the standards of conduct.
This memorandum distributed annually to all faculty, staff and students, describes the University’s DAAPP. Please contact the Center for Student Wellness at (80 I) 581-7776 for additional information and resources.
Federal and Utah State laws prohibit the use of illicit drugs and actions related to the abuse of alcohol. Summarized below are the general federal and state laws relating to drugs and alcohol.
In 1984, the National Minimum Drinking Age Act (Public Law 98-363) was passed.
The following table summarizes the federal drug trafficking penalties.
Utah law prohibits the possession and distribution of controlled substances, which are defined in Utah’s statutes and include such drugs as marijuana, heroin, cocaine and prescribed medications. See Utah Code Ann. § 58-37-4 for a listing of controlled substances.
In Utah, it is unlawful to produce, manufacture and/or dispense a controlled substance. Violation of this law may result in charges running from a class A misdemeanor to second degree felony depending upon the type of controlled substance and the circumstances of the crime. Utah Code Ann. § 58-37-8(1).
It is unlawful in Utah possess or use a controlled substance except pursuant to a valid prescription. Violation of this law may result in charges running from a class B misdemeanor to second degree felony depending upon the quantity of drugs within the individual’s possession. Utah Code Ann. §58-37-8(2).
It is class B misdemeanor in Utah to use or possess drug paraphernalia. Utah Code Ann. § 58-37a-5.
Penalties for drug violations in Utah may include incarceration for varying periods of time and fines ranging from $750 to $10,000 depending upon the nature and circumstances of the offense. Utah law provides for enhanced penalties and charges if the drug violations occur on a college campus.
More information about Utah drug laws.
Utah law prohibits minors under the age of 21 from consuming alcohol. Utah Code Ann. § 32B-4-409. A violation of this law will result in the suspension of driving privileges.
It is also unlawful in Utah to sell or distribute alcohol to a minor. Utah Code Ann § 32B-4-403. Violation of this law is a class A or B misdemeanor.
More information about Utah's alcohol laws.
Utah law prohibits driving while under the influence of alcohol. Utah Code Ann. §41-6a-503. Violations of this law may result in charges from a class B misdemeanor to a third degree felony depending upon the circumstances. Driving under the influence will also result in the suspension or revocation of a driving license.
The use of any illicit drug or abuse of alcohol is potentially hazardous to your health. Faculty, staff, and students should evaluate the health risks associated with use of illicit drugs or abuse of alcohol. Synthetically produced drugs may contain impurities and the true amounts and ingredients are rarely known. The effects of a drug may be significantly different with each use.
The U.S. Drug Enforcement Administration states: "The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people."
The National Institute of Alcohol Abuse & Alcoholism (NIAAA) provides comprehensive information and resources associated with alcohol abuse. Some of the major health risks of alcohol abuse include alcohol dependence, lasting effects on the brain, sexual assault, and suicide. Visit: www.niaaa.nih.gov for more information. For college students in particular, visit: www.collegedrinkingprevention.gov.
The University’s Drug Free Workplace Policy recognizes that rehabilitation of employees and students for drug and alcohol violations is preferred to discipline. Policy 5-113(IV)(D). The University of Utah offers faculty, staff, and students a variety of alcohol and drug treatment options. Faculty and staff can contact the University's Employee Assistance Program (EAP) for information and referrals for treatment. Call the EAP at (801) 587-9391. In addition to the EAP, individual and group drug and alcohol abuse treatment are available for faculty, staff, and students through the University Counseling Center. Call the University Counseling Center at (801) 581-6826. There are also numerous treatment options available in the community. Contact the Center for Student Wellness at (801) 581-7776 or visit its website at http://www.wellness.utah.edu for more information.
The University of Utah complies with federal and Utah state laws and penalties regarding the misuse of legal drugs (alcohol and tobacco) and use of illegal drugs. In addition to the criminal sanctions that may apply, the University of Utah will impose discipline on any employee or student who violates the University’s drug and alcohol policies.
University Policy 6-400 is the Code of Student Rights and Responsibilities (“Student Code”). Section III of the Student Code governs student behavior on campus. The Student Code specifically prohibits the “Use, possession or distribution of any narcotic or other controlled substance on University premises, at University activities, or on premises over which the University may has supervisory responsibility pursuant to state statute or local ordinance, except as permitted by law and University regulations.” Policy 6-400, Section 3(A)(8).
The Student Code prohibits the “Use possession or distribution of alcoholic beverages of any type on University premises except as permitted by law and University regulations.” Policy 6-400, Section 3(A)(9).
The Student Code also prohibits the “Violation of federal, state or local civil or criminal/laws on University premises, while participating in University activities, or on premises over which the University has supervisory responsibility pursuant to state statute or local ordinance.” Policy 6-400, Section 3(A)(11).
• Review of violation by University of Utah Student Behavior Committee with possible sanctions that may include suspension or expulsion dependent upon the nature of the offense, circumstances, and previous violations.
In addition to these sanctions, students who violate the Standards of Behavior should expect to be involved in processes indicated by the matrix below.
Since a variety of factors must be considered when sanctioning, sanctions may be increased or decreased at the discretion of university personnel responsible for administering the Student Code. Factors affecting the imposition of sanctions include such issues as the severity of the incident, impact upon other individuals or the community, and other prior judicial history. The matrix below represents examples of actions that could be or are typically taken with students who violate the student code regarding alcohol and drug use on campus. Local, state, and federal laws may also apply to alcohol and drug violations.
A. It is University Policy to maintain a drug-free workplace. It shall be a violation of this policy for employees to engage in the unlawful manufacture, distribution, dispensation, possession and/or use of a controlled substance or alcohol at a university workplace, or while engaged in university business off campus.
B. Any person accepting employment with the university agrees to abide by the terms of this policy and procedure.
The University’s Code of Faculty Rights and Responsibilities (“Faculty Code”) expressly recognizes: “Faculty members may also be subject to discipline for violation of the Drug-Free Workplace Policy (Policy 5-113) and the Field Trip Policy (Policy 10-003) in accordance with the procedures described in those policies. Policy 6-316, Section 4(8).
Sections 5 and 6 of the Faculty Code outline the sanctions and procedures for imposing faculty discipline for violations of the Faculty Code. Discipline may include a range of sanctions including a written reprimand, suspension or dismissal. Policy 6-316, Sections 5 & 6.
Staff employees may be disciplined for violating any University policies. Utah Policy 5-111 and Rules 5-111A and 5-111B outline the process for imposing University discipline for violation of workplace policies and standards. University Rule 5-111C recognizes that violations of the Drug Free Workplace rules may pose particular risks to the University community. It defines as “egregious behavior” the “Use, being under the influence or possession of alcohol in violation of the University's Alcohol related policies 3-192, 5-113 and 5-114; or illegal use of drugs and/or being under the influence of illegal drugs while on University property or when engaged in University business and when such conduct poses a serious threat of harm to people, property and/or resources of the University.” Egregious behavior may result in termination upon one instance of misconduct. Rule 5-111C.
Any employee of the University who violates the Drug Free Workplace policy may be required to participate in a drug or alcohol abuse assistance or rehabilitation program approved by the director of human resources in accordance with federal law.


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V.I.Dybkov, K. Barmak, W. Lengauer, P.Gas: Interfacial interaction of solid nickel with liquid bismuth and Bi–base alloys, J.Alloys and Compounds, 2005, v.389, No.1-2, p.61-74.
V.I.Dybkov, W. Lengauer, K. Barmak: Formation of boride layers at the Fe–10% Cr alloy–boron interface, J.Alloys and Compounds, 2005, v.398, No.1-2, p.113-122.
V.I.Dybkov, W. Lengauer, P.Gas: Formation of boride layers at the Fe–25% Cr alloy–boron interface, J.Mater.Sci., 2006, v.41, No.15, p.4948-4960.
V.I.Dybkov: Interfacial interaction and diffusion in binary systems, Defect and Diffusion Forum, 2007, v.263, p.75-80.
V.I.Dybkov: Diffusional growth kinetics of boride layers at the 13% Cr steel interface with amorphous boron, Defect and Diffusion Forum, 2007, v.263, p.183-188.
V.I.Dybkov: Growth of boride layers on the 13% Cr steel surface in a mixture of amorphous boron and KBF4, J.Mater.Sci., 2007, v.42, No.16, p.6614-6627.
K. Barmak, D.C. Berry, V.G. Khoruzha, K.A. Meleshevich, V.I. Dybkov: Dissolution Kinetics of Nickel in Lead-free Sn-Bi-In-Zn-Sb Soldering Alloys, Mater.Res.Soc.Proc., 2007, v.993, 0993-E3-01.
V.I. Dybkov: Growth Kinetics of the Intermetallic Layer at the Interface of Solid Metals with Liquid Soldering Alloys, Mater.Res.Soc.Proc., 2007, v.993, 0993-E3-02.
V.I. Dybkov, L.V. Goncharuk, V.G. Khoruzha, K.A. Meleshevich, A.V. Samelyuk, V.R. Sidorko: Growth Kinetics of Boride Layers on Iron-Chromium Alloys and their Dry Abrasive Wear Resistance, Proceedings of Materials Science and Technology MS&T-2007 Conference, 16-20 September 2007, Detroit, USA, Fundamentals and Characterization: Phase Stability, Diffusion and Their Applications, p. 513-524.
V.I. Dybkov: Phase Formation and Diffusion in Binary Systems: Real Facts and Misleading Views, Proceedings of Materials Science and Technology MS&T-2007 Conference, 16-20 September 2007, Detroit, USA, Fundamentals and Characterization: Phase Stability, Diffusion and Their Applications, p. 525-536.
K. Barmak, D.C. Berry, V.R. Sidorko, A.V. Samelyuk, V.I. Dybkov: Interfacial Interaction of Nickel with Liquid Pb-free Sn-Bi-In-Zn-Sb Soldering Alloys, Proceedings of Materials Science and Technology MS&T-2007 Conference, 16-20 September 2007, Detroit, USA, Processing and Product Manufacturing: Lead-Free Solders, p. 525-535.
V.I.Dybkov: Effect of Dissolution on the Ni3Sn4 Growth Kinetics at the Interface of Ni and Liquid Sn-Base Solders, Solid State Phenomena, 2008, v. 138, p. 153-158.
V.I.Dybkov, L.V. Goncharuk, V.G. Khoruzha, K.A. Meleshevich, A.V. Samelyuk, V.R. Sidorko: Diffusional Growth Kinetics of Boride Layers on Iron-Chromium Alloys, Solid State Phenomena, 2008, v. 138, p. 181-187.
V.I. Dybkov, V.G. Khoruzha, V.R. Sidorko, K.A. Meleshevich, A.V. Samelyuk, D.C. Berry, K.Barmak: Interfacial interaction of solid cobalt with liquid Pb-free Sn-Bi-In-Zn-Sb soldering alloys, J. Mater. Sci., 2009, vol. 44, No. 22, p. 5960-5979.
V. I. Dybkov, V. R. Sidorko, V. G. Khoruzha, A. V. Samelyuk, L. V. Goncharuk: Interaction of 25% chromium steel with boron powder, Порошковая Металлургия (Soviet Powder Metallurgy), 2011, No. 7/8, p. 222-230.
V.I. Dybkov: Thermochemical boriding of iron–chromium alloys, Chemistry Journal, 2015, v. 1, No. 3, p. 81-89 (AIS PSF open online publication).
V.I. Dybkov: Boride Coatings of Fe–Cr Alloys and Chromium Steels, International Journal of Materials Chemistry and Physics, 2015, v. 1, No. 1, p. 43-66 (AIS PSF open online publication).
В.І. Дибков: Термохімічне борування сплаву Fe–5% Cr, Порошковая металлургия, 2015, №11/12, с. 27-42.
V.I. Dybkov: Basics of Formation of Iron Boride Coatings, Journal of Mineral, Metal and Material Engineering, 2016, v. 2, p. 30-46.
V.I. Dybkov: Boriding of High Chromium Steels, Current Physical Chemistry, 2016, v. 6 , No. 2, p. 137-144. DOI: 10.2174/1877946806666160331203824.

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This matter comes before the Court on Plaintiff Liberty Mutual Fire Insurance Company's ("Liberty Mutual") and Defendant Zurich American Insurance Company's ("Zurich") Motion for Partial Summary Judgment (Docket #69) regarding a declaratory judgment filed by the Plaintiff to determine an allocation of responsibility. Defendants Harper Industries, Inc. ("Harper") and Federal Materials Company, Inc. ("Federal Materials") have responded to that motion, adopting and joining the position taken by Liberty Mutual and Zurich (Docket #71). Defendants St. Paul Fire and Marine Insurance Company ("St. Paul") and USF&G Specialty Insurance Company ("USF&G") have responded in opposition to Liberty Mutual and Zurich's motion (Docket #76). In addition, St. Paul and USF&G have filed a brief regarding the allocation of costs (Docket #70). This matter is now ripe for adjudication. For the following reasons, Liberty Mutual and Zurich's Partial Motion for Summary Judgment is DENIED.
This matter involves a declaratory judgment filed by Plaintiff Liberty Mutual concerning the allocation of responsibility between insurance companies regarding coverage of suit filed against Defendant Federal Materials. Federal Materials is a defendant in an action before this Court, captioned Adams v. Federal Materials Company, Inc., 5:05-cv-90-R. The Court recently denied class certification in that matter (Dockets #143 & #144). In the instant matter, all of the insurance companies, at some point during the alleged class period, issued liability policies that insured Federal Materials. In Adams, the plaintiffs allege that Federal Materials incorporated and supplied defective concrete to the plaintiffs in the use of their residences and other projects. The plaintiffs in Adams allege that as a result of Federal Materials' failure to take reasonable measures to prevent the use of defective aggregate in its concrete, the concrete supplied to the plaintiffs was defective.
Here, Liberty Mutual, Zurich, Harper and Federal Materials contend that all the insurers who have agreed to participate in the defense of Federal Materials, including St. Paul and USF&G, should contribute equally to the defense. Liberty Mutual and Zurich assert that because there are five (5) insurers involved in the defense, claiming that St. Paul and USF&G should be counted separately, each insurer should contribute 20% (or 1/5) to the defense. St. Paul and USF&G, who merged after the policies were issued, contest the method of equitable allocation among the defense costs that Liberty Mutual and Zurich has put before the Court. St. Paul and USF&G argue in their brief that their collective responsibility, based on the pour dates of the concrete and the policy period of each insurance company, would only amount to 8.9%. In the alternative, St. Paul and USF&G suggests that the most they should be held liable for is 25% of the defense costs, based on a contribution of four (4) insurers.
Summary judgment is available under Fed. R. Civ. P. 56(c) if the moving party can establish that the "pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). [N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is "whether the party bearing the burden of proof has presented a jury question as to each element in the case." Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of the evidence. To support his position, he must present evidence on which the trier of fact could find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986)).
Mere speculation will not suffice to defeat a motion for summary judgment: "[t]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Electronic Data Systems Corp., 90 F. 3d 1173, 1177 (6th Cir. 1996). Finally, while Kentucky state law is applicable to this case pursuant to Erie Railroad v. Tompkins, 304 U.S. 64 (1938), a federal court in a diversity action applies the standards of Fed. R. Civ. P. 56, not "Kentucky's summary judgment standard as expressed in Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., Ky., 807 S.W.2d 476 (1991)." Gafford v. General Electric Co., 997 F.2d 150, 165 (6th Cir. 1993).
All the parties in this matter have cited the Sixth Circuit Court of Appeals case of Insurance Company of North America v. Forty-Eight Insulations, Inc., as the controlling authority to determine the proper method of allocation. Insurance Company of North America v. Forty-Eight Insulations, Inc. 633 F.2d 1212, 1224-25 (6th Cir.1980). Despite this recognition, Liberty Mutual and Zurich still contend that the Court should allocate defense costs equally among the primary insurers, citing cases from other jurisdictions to support their arguments. However, Liberty Mutual and Zurich have not stated why Forty-Eight Insulations is not controlling in this matter. Accordingly, the Court finds that rationale set out in Forty-Eight Insulations dictates the proper method of allocation in this matter.
The duty to defend arises solely under contract. An insurer contracts to pay the entire cost of defending a claim which has arisen within the policy period. The insurer has not contracted to pay defense costs for occurrences which took place outside the policy period. Where the distinction can be readily made, the insured must pay its fair share for the defense of the non-covered risk...Forty-Eight has urged that indemnity costs can be allocated by the number of years that a worker inhaled asbestos fibers. By embracing the exposure theory, we have agreed. There is no reason why this same theory should not apply to defense costs. The different insurance companies will pro-rate defense costs among themselves. It is reasonable to treat Forty-Eight as an insurer for those periods of time that it had no insurance coverage. Were we to adopt Forty-Eight's position on defense costs a manufacturer which had insurance coverage for only one year out of 20 would be entitled to a complete defense of all asbestos actions the same as a manufacturer which had coverage for 20 years out of 20. Neither logic nor precedent support such a result. Id. at 1224-25 (emphasis added).
Other courts within the Sixth Circuit as well as courts outside this Circuit have abided by the pro rata approach dictated by the Court in Forty-Eight Insulations. In Budd Company v. Travelers Indemnity Company, the Sixth Circuit Court of Appeals, in recognizing the precedent set out in Forty-Eight Insulations, applied the pro rata method of allocation to a products liability case involving a multi-piece trucking wheel. Budd Company v. Travelers Indemnity Company, 820 F.2d 787, 790-91 (6th Cir. 1987). In Budd, similar to Forty-Eight Insulations, an incident that triggered the duty to defend took place, and the defense provided by the insurer conferred a benefit outside the scope of coverage to the insured. Id. at 790. In applying the holding in Forty-Eight Insulations, the Court in Budd emphasized that "'[w]here the distinction can readily be made, the insured must pay its fair share for the defense of the non-covered risk.'" Id. at 791(citing Forty-Eight Insulations at 1224-25). The Court in Budd found that the district court had properly prorated the defense costs noting that since the attorneys for the insurers "billed on a periodic basis, it is entirely reasonable to pro-rate its charges in proportion to the number of cases each party was responsible for during each billing period." Id.
In Century Indemnity Company v. Aero-Motive Company, a very similar case to the instant matter, the United States District Court for the Western District of Michigan reviewed a declaratory judgment sought by a group of insurers involving a dispute concerning the duty to defend an environmental damages lawsuit. Century Indemnity Company v. Aero-Motive Company, 318 F. Supp.2d 530, 533 (W.D. Mich. 2003). The insurers who brought the action claimed that the allocation of defense costs must be set on a pro rata basis, while the other insurers argued that they should be joint and severally liable for all defense costs. Id. at 544. In applying the holding in Forty-Eight Insulations, the Court held that the defense costs should be apportioned amongst the insurers on a pro rata basis because the costs could readily apportioned among the insurers. Id. at 545. In abiding by the rationale set out in Forty-Eight Insulations, the Court reasoned that no insurer should have to pay for any defense outside of the policy period. Id. Other courts have reached similar results in applying the holding of Forty-Eight Insulations to determine the method of allocation in regards to defense costs amongst insurers. See Equal Employment Opportunity Commission v. Southern Publishing Co., Inc., 894 F.2d 785, 791 (5th Cir. 1990)(holding that the Court should follow the rule set out in Forty-Eight Insulations to prorate the costs of defense between the insurers on Title VII claims); Dow Chemical Company v. Associated Indemnity Corp., 1991 WL568033, *4-*7 (E.D. Mich 1991)(the Court, in holding that the rationale set out in Forty-Eight Insulations is "founded upon principles of fair and equity," retroactively allocated defense costs on a pro rata basis); Lafarge Corp. v. Hartford Casualty Insurance Co., 61 F.3d 389, 398-400 (5th Cir 1995)(in applying Forty-Eight Insulations, determined that the insurer shouldnot be liable for any defense incurred prior to the beginning of the policyperiod); Stryker Corp. v. National Union Fire Insurance Co. of Pittsburgh, PA., 2005 WL 1610663, *4-*7 (W.D. Mich. 2005)(holdingthat the pro rata approached set out in Forty-Eight Insulations applies to determine the liability of defense costs of the insurers to the insured).

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On August 28, 2012, pro se petitioner Wayne Anthony Shand (“Petitioner”) was convicted upon a plea of guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). On December 18, 2012, this Court sentenced Petitioner to 77 months of incarceration, followed by three (3) years of supervised release. Dec. 18, 2012 Sentencing Tr. at 13:7-9, Dkt. Entry No. 6-7 (“Dec. 18 Tr.”). On January 13, 2014, the Second Circuit Court of Appeals affirmed the judgment of this Court. See generally, United States v. Shand, 739 F.3d 714 (2d Cir. 2014). Petitioner has not petitioned the United States Supreme Court for a writ of certiorari.
On March 17, 2014, Petitioner timely filed a motion to “vacate, set aside, or correct sentence, ” pursuant to 28 U.S.C. § 2255 (“Section 2255”). See generally, Pet'r's Mot. to Vacate, Set Aside, or Correct Sentence, Dkt. Entry No. 1 (“Pet'r's Mot.”). Petitioner contends that he received ineffective assistance of trial counsel because trial counsel failed to argue at sentencing that this Court was without discretion to deny the Government's motion for a four-point downward departure, under Section 5K3.1 of the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”). Pet'r's Mot. at 4-5; Gov't Mem. of Law in Opp'n to Pet. at 12, Dkt. Entry No. 6 (“Gov't Opp'n”). Petitioner also seems to argue that trial counsel promised Petitioner that Petitioner would qualify for the downward departure. Gov't Opp'n at 12. Petitioner requests that the Court hold an evidentiary hearing and assign him counsel on the motion. Pet'r's Mot. at 12.
For the reasons that follow, Petitioner's Section 2255 motion is denied in its entirety.
Officers from the New York City Police Department (“NYPD”) arrested Petitioner in Queens, New York, on May 6, 2011, and charged him with Possession of a Forged Instrument in the Second Degree, in violation of New York State Penal Law § 170.25. Gov't Opp'n at 4. When the officers ran a criminal history report for Petitioner, they discovered that he had been removed previously from the United States after being convicted of an aggravated felony in New York State. Id. A search of United States Immigration and Customs Enforcement records reflected that Petitioner neither had sought nor received permission to reenter the United States after being removed. Id. On September 8, 2011, a grand jury of this district returned an indictment on a single count of illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2). See Indictment, No. 11-cr-627 (DLI), Dkt. Entry No. 7.
Petitioner pled guilty pursuant to a plea agreement to the sole count of the Indictment before the Honorable Roanne L. Mann, U.S.M.J., on July 13, 2012. See Gov't Opp'n at 4. Under the terms of the plea agreement, Petitioner consented to removal and waived any right to apply for relief or protection from removal. Id. The Government agreed to seek a four-level downward departure of Petitioner's total offense level under U.S.S.G. § 5K3.1, pursuant to the United States Department of Justice's “fast-track” program for certain immigration offenses. Id. at 4-5. The plea agreement set forth an estimated offense level of 13 for Petitioner, which accounted for the four-level downward departure under the fast-track program, plus a three-level reduction if Petitioner demonstrated his acceptance of responsibility and pled guilty on or before July 13, 2012. Id. at 5. Premised on the parties' belief that Petitioner had a Criminal History Category (“CHC”) of III, the resulting Sentence Guideline Range (“SGR”) contained in the plea agreement was 18 to 24 months of imprisonment. Id.
Petitioner's guilty plea was accepted by this Court on August 28, 2012. Gov't Opp'n at 7. The Probation Department disclosed Petitioner's Presentence Report (“PSR”) on September 27, 2012. Id. at 5. Probation determined that Defendant had a CHC of VI, rather than III. Id. The reason for the discrepancy between the plea agreement's CHC and that contained in the PSR was the Probation Department's discovery that Petitioner had reentered the United States illegally in or before 2004. Id. The Government had assumed that the illegal reentry occurred in 2011. Id. Because the offense commenced in 2004, or earlier, prior convictions that had been excluded previously from the calculation of Petitioner's CHC were now included, yielding a higher CHC. Id. at 6. Additionally, Probation calculated Petitioner's total offense level (“TOL”) at 17, including the four-level downward departure that the Government had promised to seek under the fast-track program. Id. at 5. Without that departure, Probation calculated the TOL at 21. Id. With a CHC of VI, the former TOL would result in a SGR of imprisonment of 51 to 63 months. Id. The latter TOL would result in a SGR of 77 to 96 months. Id.
Petitioner first appeared for sentencing before this Court on December 5, 2012. See generally, Dec. 5, 2012 Sentencing Tr., Dkt. Entry No. 6-6 (“Dec. 5 Tr.”). At the hearing, the Government sought the four-level downward departure set forth in the plea agreement. See Id. at 15:11-15. The Court explained to both parties that, although the Government may move for such a departure, it ultimately is within the Court's discretion whether to grant the reduction. Id. at 16:13-15. The Court denied the Government's motion. Dec. 5 Tr. at 25:22-23. After the denial, the Court adjourned the hearing to give Petitioner the opportunity to consult with his attorney and decide whether he wished to withdraw his guilty plea in light of the Court's ruling. Id. at 26:5-11.
The parties reconvened before the Court on December 18, 2012. See generally, Dec. 18 Tr. At the December 18 hearing, Petitioner stated that he did not want to withdraw his guilty plea, and was ready to go forward with sentencing. Id. at 4:15-24. Having denied the Government's downward departure motion, the Court sentenced Petitioner to the bottom of the Guideline range calculated by the Probation Department: 77 months in custody, followed by three (3) years of supervised release. Id. at 13:3-10.
Petitioner timely appealed, arguing that the Court did not have discretion to deny the Government's motion for a four-level downward departure, and that his sentence was procedurally and substantively unreasonable. See Gov't Opp'n at 9. Petitioner did not raise an ineffective assistance of counsel claim on appeal. The Second Circuit affirmed Petitioner's conviction and sentence on January 13, 2014, and held that “a district court may, but need not, depart downward upon an appropriate motion by the Government under U.S.S.G § 5K3.1.” Shand, 739 F.3d at 715 (emphasis added).
Petitioner now argues that his trial counsel was constitutionally ineffective, and asks this Court to grant him an evidentiary hearing on this issue, and appoint him counsel.


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Q: What happened in the case, United States v. E.C. Knight?
(1895) (Court did not apply Sherman Anti-trust act to break up Sugar Monopoly because this was a regulating of manufacturing, not commerce).
i. Gov’t argued that production of a ncessity of life (sugar) involved commerce.
ii. Court holds that the power to manufacture sugar involves control over its distribution-but this is secondary and not primary control. The exercise of power, therefore, is secondary to commerce. Commerce not part of manufacture. Sugar manufacturing bore no relation to interstate commerce, and the Sherman Act cannot be applied.
iii. Dissent – argued that there was a direct impact of manufacturing on commerce.
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