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Rufus L. Edmisten, Attorney General, by Lester V. Chalmers, Jr., Special Deputy Attorney General and Donald W. Stephens, Assistant Attorney General, for the State.
Richard E. Giroux and Richard A. Rosen, Attorneys for defendant-appellant.
The primary issue presented in this case is whether the trial court committed prejudicial and reversible error during the defendant’s original trial for murder in the first degree by instructing the jury that the defendant had the burden of proving self-defense and absence of malice. For reasons set forth herein, we find no reversible error in this regard and affirm the 21 April 1981 Order of the Superior Court denying the defendant’s Motion for Appropriate Relief.
The defendant was tried before Judge George M. Fountain and a jury and convicted during the 19 May 1975 Session of Superior Court, Onslow County, for the murder in the first degree of Kirby W. Marshburn. 1 He was sentenced to death and appealed. This Court found no error in the conviction or sentence, 289 N.C. 159, 221 S.E. 2d 333 (1976). The Supreme Court of the United States later vacated the sentence of death against the defendant, 429 U.S. 809, 50 L.Ed. 2d 69, 97 S.Ct. 46 (1976). On remand a life sentence was imposed in Superior Court, Onslow County, on 30 November 1976.
On 14 April 1981, the defendant filed a Motion for Appropriate Relief pursuant to G.S. 15A-1411 et seq. alleging that the trial court improperly placed the burden upon him to prove self-defense and absence of malice and denied him due process of law in violation of the requirements of the Fifth and Fourteenth Amendments to the Constitution of the United States, Article I, Section 19 of the Constitution of North Carolina and the constitutional mandate of Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975). The defendant further alleged that the failure of his court appointed attorneys to raise the due process issues of Mullaney relative to the burden of proof on self-defense and absence of malice deprived him of his right to effective assistance of counsel, due process of law and equal protection of the law guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 19 and 23 of the Constitution of North Carolina. By Order dated 21 April 1981, the Superior Court denied the defendant’s Motion for Appropriate Relief. We allowed the defendant’s petition for writ of certiorari to review that Order on 12 January 1982.
A complete recitation or review of the evidence offered during the original trial on behalf of the State and the defendant would serve no useful purpose. A more complete statement of facts in this regard is to be found in the opinion rendered by this Court upon the defendant’s direct appeal of his trial and conviction, 289 N.C. 159, 221 S.E. 2d 333 (1976). Our review of the evidence for the State and the defendant and the instructions of the trial court during the original trial is limited to those matters pertinent to our consideration of the propriety of the 21 April 1981 Order of the Superior Court denying the defendant’s Motion for Appropriate Relief.
After I was unable to reach the person I was calling, I had a conversation with the man in the house and as far as I knew there was nobody in the house except me and the man. We were standing in the kitchen having our conversation. Up until that time our relationship had been good and we had just been talking. There were no ill words between us at that time. I asked him for a drink of water and he gave me a glass full of water and we stood there and talked. I was standing inside the kitchen by the sink and the man was standing near me and the door was on the other side of him. The man was talking about some person down the road that owned a wrecker and he said something about there being a “colored boy” down the road who owned a wrecker. Before he got all the words out I corrected him and I said “colored boy?” and I asked him what color the person was. The man did not make any immediate response, it was kind of a delayed response and he stopped for a second and then all of a sudden he started pushing me and telling me to get out. At that time I was standing in front of the sink and the sink was to my back. Mr. Marshburn was standing in front of me and the door that I entered was behind him. I must have been six or seven inches from the sink when he pushed me and I backed into the sink. He never struck me and he did not have a weapon in his hand.
I believe he repeated three or four times for me to get out of the trailer and all the time he was between me and the door. There were dishes around the kitchen but I do not recall if there was any food on the table. There was a counter top by the sink and I saw a knife laying there (State’s Exhibit 4) and I picked it up. I picked up the knife because I was nervous and I thought I was protecting myself and I was afraid for my safety.
As far as I knew the only way out of the trailer was the door that I entered as I had never been there before and I did not know who was there when I went there. After picking up the knife, I stabbed the man to get him off of me and at that time I did not have any intention of stealing anything from him or from his house. When I went into the house earlier I did not have any intention of stealing anything.
Earlier in my testimony I did say that I picked up a knife on the counter and I did pick it up intentionally. I stabbed Kirby Marshburn knowing what I was doing and I stabbed him to get him away from me. I had backed up as far as I could back up and the only way I knew out of the trailer was through the door that I entered. I was afraid for my safety at that time and I now realize that I probably used more force than was necessary. Prior to using the force that resulted in the man’s death, I did not intend on doing anybody any harm or taking anything from the trailer.
The thought of robbery never entered my mind when I went to the Marshburn house. Mr. Marshburn pushed me towards the sink and we were facing each other at that time. My body hit the sink and I looked back behind me and saw the knife. I was in another man’s house and I knew that he wanted me to get out of his house. I do not know what kept me from walking past this 65 year old man and I guess I probably could have done that. At that time I thought I had a reason for picking up the knife as I was looking out for myself and my safety. I do not know what made me afraid of this 65 year old man. I realize he was much older than me and he did not have a weapon. He had not threatened to use a weapon on me and he allowed me to come into his house and use his phone and he had given me a drink of water. I did think it was necessary to pick up a knife and stab him at that time.
I do not remember where I stabbed him the first time and I do not remember how many times I stabbed him. Mr. Marshburn had nothing behind him and I had the sink behind me. There was nothing behind and I could have hit him in the face but I grabbed the knife and stabbed him instead. I don’t know how many times I stabbed him before he fell but I did not stab him after he fell on the floor. If the man was stabbed six times with the knife then he was stabbed six times standing up. I cannot explain the abrasions about Mr. Marshburn’s face because I did not hit him in the face. I did not stomp him with my boots after he was on the floor and I do not know how he got those abrasions on his face. I was no more than an arm’s length away from him. He wasn’t exactly struggling at that time and I don’t remember exactly what he was doing. I did stab him six times before he fell.
The evidence additionally revealed that the deceased died of the knife wounds inflicted by the defendant. Mrs. Eva Marshburn returned to the home shortly after the events described by the defendant in his testimony and found it ransacked with her husband, Kirby W. Marshburn, lying on the floor in a pool of blood. One of the Marshburns’ steak knives and Mr. Marshburn’s billfold were on the floor near his body. When Mrs. Marshburn looked up from her husband’s body she saw the defendant standing near her. The defendant took three dollars from Mrs. Marshburn and told her that he was not going to harm her. The defendant then tied her up, took her car keys and a gun and left the home.
On certiorari to this Court, the defendant assigns as error the denial of his Motion for Appropriate Relief and reasserts his contention that the instructions of the trial court during his original trial erroneously placed the burden upon him to prove self-defense and absence of malice to the satisfaction of the jury. We consider first the erroneous instructions 2 of the trial court on the issue of self-defense. We find that the evidence before the trial court did not justify any instruction on the law of self-defense and that any instruction on self-defense was error favorable to the defendant and harmless beyond a reasonable doubt.
State v. Norris, 303 N.C. 526, 530, 279 S.E. 2d 570, 572-73 (1981). Imperfect self-defense arises when only elements (1) and (2) in the preceding quotation are shown. Therefore, if the defendant believed it was necessary to kill the deceased in order to save himself from death or great bodily harm, and the defendant’s belief was reasonable because the circumstances at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, but the defendant, although without murderous intent, was the aggressor or used excessive force, the defendant would have lost the benefit of perfect self-defense. In this situation he would have shown only that he exercised the imperfect right of self-defense and would remain guilty of at least voluntary manslaughter. State v. Wilson, 304 N.C. 689, 695, 285 S.E. 2d 804, 808 (1982). However, both elements (1) and (2) in the preceding quotation must be shown to exist before the defendant will be entitled to the benefit of either perfect or imperfect self-defense.
Applying the foregoing principles of law to the present case, we find that the evidence taken in the light most favorable to the defendant completely fails to show any circumstances existing at the time the defendant killed the deceased which would have justified an instruction on the law of either perfect or imperfect self-defense. The record before us is void of any evidence tending to show that the defendant in fact believed it necessary to kill the deceased in order to save himself from death or great bodily harm. The defendant’s own testimony taken in the light most favorable to him indicates clearly that Marshburn, at worst, pushed the defendant and told him to get out of the Marshburn home. The defendant clearly testified that Marshburn “had not threatened to use a weapon” against the defendant and had not attempted even to strike the defendant other than by placing his hands upon him and pushing him. There is absolutely no evidence tending to indicate that Marshburn was so large or powerful as to cause the defendant to be unduly alarmed by such conduct. To the contrary, the evidence shows that Marshburn was a 65 year old man and the defendant was a 20 year old member of the United States Marine Corps. Nor are the defendant’s self-serving statements that he was “nervous” and “afraid” and that he thought he was “protecting myself” an adequate basis for an instruction on self-defense. Even these self-serving statements do no more than indicate merely some vague and unspecified nervousness or fear; they do not amount to evidence that the defendant had formed any subjective belief that it was necessary to kill the deceased in order to save himself from death or great bodily harm. Instead, all of the evidence tends to indicate that the defendant had not formed a belief that it was necessary to kill Kirby Marshburn in order to save himself from death or great bodily harm. It is even more apparent, if that is possible, that any fear by the defendant of death or great bodily harm was not reasonable. The circumstances as the defendant testified that they appeared to him at the time were totally insufficient to create any such belief in the mind of a person of ordinary firmness.
A defendant is entitled to an instruction on self-defense if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm. State v. Spaulding, 298 N.C. 149, 156, 257 S.E. 2d 391, 395 (1979). If, however, there is no evidence from which the jury reasonably could find that the defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, the defendant is not entitled to have the jury instructed on self-defense. State v. Rawley, 237 N.C. 233, 74 S.E. 2d 620 (1953). It is for the court to determine in the first instance as a matter of law whether there is any evidence that the defendant reasonably believed it to be necessary to kill his adversary in order to protect himself from death or great bodily harm. See State v. Johnson, 166 N.C. 392, 81 S.E. 941 (1914). If there is no evidence that the defendant in fact formed such a reasonable belief, then there is no evidence of self-defense and the issue should not be submitted to or considered by the jury. On the other hand, the defendant is entitled to an instruction on self-defense when there is any evidence in the record that it was necessary or reasonably appeared to be necessary to kill in order to protect himself from death or great bodily harm. State v. Spaulding, 298 N.C. 149, 257 S.E. 2d 391 (1979). In other words, before the defendant is entitled to an instruction on self-defense, two questions must be answered in the affirmative: (1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and (2) if so, was that belief reasonable? If both queries are answered in the affirmative, then an instruction on self-defense must be given. If, however, the evidence requires a negative response to either question, a self-defense instruction should not be given.
In the present case, there was no evidence which would have supported a finding that the defendant in fact formed a belief that it was necessary for him to kill Marshburn in order to protect himself from death or great bodily harm. Nor was there evidence which would have supported a finding that any such belief was reasonable. Therefore, the trial court erred in giving the jury any instructions relative to self-defense. This error was favorable to the defendant and clearly harmless to him beyond a reasonable doubt, since it resulted in the jury giving consideration to acquittal upon a ground which the defendant was not entitled to have the jury consider. When a trial court undertakes to instruct the jury on self-defense in a case in which no instruction in this regard is required, the gratuitous instructions on self-defense are error favorable to the defendant even though they contain misstatements of law which would constitute reversible error in a case in which instructions on self-defense were required by the evidence. See State v. Church, 229 N.C. 718, 51 S.E. 2d 345 (1949). As the defendant in the present case was not entitled to any jury instructions on self-defense, any mistakes by the trial court in its instructions on self-defense were, at worst, harmless error not necessitating a new trial. State v. Boone, 299 N.C. 681, 263 S.E. 2d 758 (1980).
We turn now to that portion of the defendant’s argument in support of his Motion for Appropriate Relief in which he contends that the trial court committed reversible error during his original trial by instructing the jury in such manner as to place the burden on him to prove that the killing was in the heat of passion and therefore without malice. We find this assignment without merit.
In instructing the jury with regard to the element of malice, the trial court stated throughout the instructions that malice is implied in law from an intentional killing with a deadly weapon. The trial court also instructed the jury that should they find that the defendant intentionally inflicted the wounds which caused Marshburn’s death, a presumption of unlawfulness and malice would arise and that an unlawful killing with malice is murder in the second degree. The trial court further instructed the jury, that if they so found, the burden then would be upon the defendant to satisfy them of the absence of malice to reduce the homicide from murder in the second degree to manslaughter.
The defendant contends and we agree that there was some evidence justifying an instruction concerning heat of passion killing on sudden provocation and a resulting absence of malice. This being the case, any presumption of malice arising from a finding that the defendant intentionally inflicted the fatal wounds with a deadly weapon disappeared and the State was entitled to no presumption. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), reversed on other grounds, 432 U.S. 233, 53 L.Ed. 2d 306, 97 S.Ct. 2339 (1977). The defendant contends that the action of the trial court in placing the burden upon him to satisfy the jury that the killing was without malice tainted his conviction of murder in the first degree and required the Superior Court to grant his Motion for Appropriate Relief and award him a new trial. We do not agree.
Any error in the jury instructions placing the burden of persuasion on the defendant to show absence of malice was cured by the jury’s verdict of murder in the first degree. 3 State v. Fowler, 285 N.C. 90, 203 S.E. 2d 803 (1974); State v. Freeman, 275 N.C. 662, 170 S.E. 2d 461 (1969). The holding in Mullaney was intended to cure those situations in which a presumption of malice unfairly relieved the State of the burden of proving the malice which distinguishes murder in the second degree from manslaughter when there was some evidence tending to show a mitigating circumstance negating malice. We have held that when, as in the present case, there is some evidence of “heat of passion on sudden provocation (which negates malice) then in order to prove the existence of malice the State must prove the absence of heat of passion beyond a reasonable doubt.” State v. Jones, 299 N.C. 103, 109, 261 S.E. 2d 1, 6 (1980). The State met this requirement in the present case when it proved to the jury beyond a reasonable doubt that the defendant was guilty of murder in the first degree. Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation, and the trial court so instructed the jury. The term “premeditation” means thought out beforehand for some length of time. A killing in the heat of passion is a killing without premeditation. Id.; State v. Jennings, 276 N.C. 157, 161, 171 S.E. 2d 447, 449-50 (1970). When the jury found beyond a reasonable doubt that the defendant killed his victim with premeditation, they also necessarily found beyond a reasonable doubt that the State had shown that the defendant did not act in the heat of passion. The trial court at all times correctly emphasized that the State must bear the burden of proving beyond a reasonable doubt premeditation on the part of the defendant, which would negate the possibility of his acting in the heat of passion. The trial court placed this burden upon the State without the benefit of any presumption in its favor.
Similarly, the term “deliberation” means “an intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation.” State v. Benson, 183 N.C. 795, 798, 111 S.E. 869, 871 (1922) (emphasis added) (quoted with approval in State v. Biggs, 292 N.C. 328, 337, 233 S.E. 2d 512, 517 (1977)). The State did not enjoy the benefit of any presumption in carrying its burden of proving beyond a reasonable doubt the deliberation on the part of the defendant necessary to support a conviction for murder in the first degree. Quite the contrary, the trial court specifically instructed the jury on two occasions that, in order to find deliberation on the part of the defendant, they must be satisfied beyond a reasonable doubt that the killing was done “in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose and not under the influence of a violent passion suddenly aroused by some lawful and just cause or legal provocation.” Having twice instructed the jury in this manner, the trial court went on to instruct them that, if they found the killing was executed in the heat of passion, they must find it was not the result of deliberation by the defendant. The trial court in no way indicated to the jury that any presumption arising from the intentional infliction of fatal wounds with a deadly weapon could be considered in determining whether the defendant acted with deliberation. Instead, the trial court more than once specifically instructed the jury that the State must prove those things necessary to establish deliberation beyond a reasonable doubt and that the burden of proof remained with the State. The jury convicted the defendant of murder in the first degree and thereby found beyond a reasonable doubt that the defendant acted with deliberation and premeditation and not in the heat of passion.
When a jury reaches a verdict finding a defendant guilty of murder in the second degree, the presumption of malice arising from the intentional infliction of fatal injuries with a deadly weapon may be a decisive factor in the jury’s verdict. In those cases, the principles of Mullaney apply, and it is reversible error to require the defendant to carry the burden of satisfying the jury that his acts were in the heat of passion suddenly aroused and without malice.
In cases in which the defendant is convicted of premeditated and deliberate murder in the first degree, however, the State has not relied upon a mere presumption of malice. In finding the defendant guilty beyond a reasonable doubt of the willful, deliberate and premeditated killing of the victim, the jury in the present case necessarily rejected beyond a reasonable doubt the possibility that the defendant acted in the heat of passion. Dorsey v. Maryland, 278 Md. 221, 362 A. 2d 642 (1976); Evans v. Maryland, 28 Md. App. 640, 349 A. 2d 300 (1975); Street v. Warden, 423 F. Supp. 611 (D. Md. 1976), aff’d, 549 F. 2d 799 (4th Cir. 1976) (unpublished opinion), cert. denied, 431 U.S. 906, 52 L.Ed. 2d 390, 97 S. Ct. 1700 (1977).
Phrased otherwise, in proving the elements of first degree murder beyond any reasonable doubt in the jurors’ minds, the state necessarily disproved manslaughter beyond a reasonable doubt. Accordingly, the gist of Mullaney v. Wilbur, supra, that the state prove all elements of an offense beyond a reasonable doubt, is satisfied in fact. And, any arguable error in the jury instructions was harmless beyond a reasonable doubt.
Wilkins v. Maryland, 402 F. Supp. 76, 80 (D. Md. 1975) (citations omitted), aff’d, 538 F. 2d 327 (4th Cir. 1976), cert. denied, 429 U.S. 1044, 50 L.Ed. 2d 757, 97 S.Ct. 747 (1977). Therefore, we find that the instructions of the trial court with regard to the presumption of malice arising from the defendant’s intentional infliction of fatal wounds with a deadly weapon constituted error which was harmless beyond a reasonable doubt. 4 For this reason, the defendant’s Motion for Appropriate Relief was properly denied.
Until recently the procedures and standards to be employed in reviewing a collateral attack upon a criminal conviction were prescribed in our former Post-Conviction Hearing Act, G.S. 15-217 through G.S. 15-222, and cases decided thereunder. E.g, State v. White, 274 N.C. 220, 162 S.E. 2d 473 (1968); Branch v. State, 269 N.C. 642, 153 S.E. 2d 343 (1967); State v. Graves, 251 N.C. 550, 112 S.E. 2d 85 (1960); State v. Wheeler, 249 N.C. 187, 105 S.E. 2d 615 (1958); State v. Cruse, 238 N.C. 53, 76 S.E. 2d 320 (1953); Miller v. State, 237 N.C. 29, 74 S.E. 2d 513 (1953). Since the statutes comprising our former Post-Conviction Hearing Act have now been repealed, neither those statutes nor cases decided thereunder are now authoritative with regard to the procedures and standards used in reviewing collateral attacks upon criminal convictions. 1977 N.C. Sess. Laws, ch. 711, ßß 33 and 39. The procedures and standards to be used in such collateral attacks are now set forth in Article 89 of Chapter 15A of the General Statutes of North Carolina, G.S. 15A-1411 through G.S. 15A-1422. The statutes comprising Article 89 took effect on 1 July 1978, but specifically were made fully retrospective without regard to when a defendant’s guilt was established or when judgment was entered against him. 1977 N.C. Sess. Laws, ch. 711, ß 39. Further, the motion for appropriate relief provided for by Article 89 was intended by the legislature to replace motions in arrest of judgment, motions to set aside the verdict, motions for new trial, post-conviction proceedings, coram nobis and all other post-trial motions, but was not intended as a bar to relief by writ of habeas corpus. G.S. 15A-1411(c). Therefore, the procedures and standards to be employed with regard to collateral attacks upon criminal convictions, such as the defendant’s Motion for Appropriate Relief in the present case, are controlled by the statutes comprising Article 89, G.S. 15A-1411 through G.S. 15A-1422.
We turn now to those portions of Article 89, Chapter 15A which control our review of the Superior Court’s Order denying the defendant’s Motion for Appropriate Relief in the present case. Ordinarily, a motion for appropriate relief must be made after the verdict but not more than ten days after entry of judgment. G.S. 15A-1414. Certain grounds for appropriate relief set forth in G.S. 15A-1415 may, however, be asserted without limitation at any time after the verdict. The list of such grounds contained in G.S. 15A-1415 is exclusive and no other ground asserted by a defendant will support a motion for appropriate relief made more than ten days after the entry of judgment. G.S. 15A-1415(b). Included among the grounds which a defendant may assert by a motion for appropriate relief made more than ten days after judgment is the ground that the defendant’s “conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina.” G.S. 15A-1415(b)(3). In the present case, the defendant made his Motion for Appropriate Relief more than ten days after the entry of judgment. The motion was not subject to summary denial on this basis, however, as the defendant asserted that his conviction was obtained unconstitutionally which is one of the grounds for appropriate relief which may be asserted without limitation as to time. Thus, the Superior Court was required to consider the merits of his motion.
The term “prejudice” now has two different meanings in cases in which post-conviction relief is sought by way of a motion for appropriate relief. The term “prejudice” is defined in G.S. 15A-1420(c)(6) by cross-reference to and incorporation of G.S. 15A-1443. If the error asserted in the motion for appropriate relief does not arise under the Constitution of the United States, then the definition of “prejudice” traditionally used in collateral attacks on convictions applies. In these cases the burden is upon the defendant to show a reasonable possibility that a different result would have been reached at his trial had the asserted error not been committed. G.S. 15A-1443(a). If, however, the error asserted in the motion for appropriate relief is shown by the defendant to exist and involves a violation of the defendant’s rights under the Constitution of the United States, the State must bear the burden of demonstrating that the error was harmless beyond a reasonable doubt. G.S. 15A-1443(b). Such constitutional errors are deemed prejudicial unless they are found harmless beyond a reasonable doubt. 6 Id.
The definitions of the term “prejudice” contained in G.S. 15A-1443 were originally intended to apply only to direct appeals of criminal convictions. By adopting and incorporating those definitions by reference as a part of G.S. 15A-1420(c)(6), and making them also apply to collateral attacks upon convictions, the General Assembly has provided benefits to convicted criminal defendants in excess of those already provided them by the Constitution of the United States and the Supreme Court of the United States. This the General Assembly in its wisdom is free to do.
When post-conviction relief is sought by way of a motion for appropriate relief in the Superior Court, that court ordinarily must make findings of fact and conclusions of law in its order granting or denying relief. In those cases in which appellate review of rulings on such motions properly may be undertaken by this Court, we are bound by the findings of fact made by the Superior Court if they are supported by evidence in the record. See Branch v. State, 269 N.C. 642, 153 S.E. 2d 343 (1976) (applying our former Post-Conviction Hearing Act); State v. Wheeler, 249 N.C. 187, 105 S.E. 2d 615 (1958) (same). The Superior Court’s conclusions of law based upon its findings of fact are subject to our review. Id. In the present case, the Superior Court did not make extensive findings or conclusions in its Order denying the defendant’s Motion for Appropriate Relief and instead primarily relied upon its conclusion that the facts as stated by the defendant in his motion did not entitle him to any form of relief. Where as here the record reveals that the determinative facts were and are uncontested and that the errors complained of were harmless beyond a reasonable doubt as a matter of law, it is unnecessary for us to remand the case for further findings of fact or conclusions of law by the Superior Court. It is sufficient that we determine, as we have here, that the Order of the Superior Court denying the defendant’s Motion for Appropriate Relief was required as a matter of law in light of the uncontested operative facts.
1 The jury was instructed on both murder in the commission of a felony and murder with premeditation and deliberation. The jury returned a verdict finding the defendant guilty of “murder in the first degree” without specifying whether it had found him guilty on one theory or the other or on both theories. This being so, prejudicial error in the trial court’s instructions relative to either theory will require a new trial. Cf. Stromberg v. California, 283 U.S. 359, 75 L.Ed. 1117, 51 S.Ct. 532 (1931) (conviction could have been based on any one clause in the statute, unconstitutionality of one of the three clauses in the statute required reversal).
2 Although our analysis and decision in this case do not make it necessary for us to resolve the question, we assume arguendo throughout this opinion that the instructions of the trial court during the defendant’s original trial violated the constitutional principles of Mullaney by placing on the defendant the burden of proving to the satisfaction of the jury self-defense and the burden of proving that he acted in the heat of passion on sudden provocation which would establish an absence of malice.
3 Although the jury did not indicate the theory upon which they returned the verdict of guilty of murder in the first degree against the defendant, we assume for our purposes here that the verdict represented a finding of premeditated and deliberate murder in the first degree. This presumption is, of course, favorable to the defendant. To assume that the conviction of murder in the first degree was based upon the theory that the killing occurred during the perpetration or attempt to perpetrate a felony, would make the trial court’s allocation of the burden of proof in regard to elements such as premeditation, deliberation and malice irrelevant and harmless, as none of these elements are elements of the crime of murder in the commission or attempted commission of a felony. Smith v. State, 244 Ga. 814, 262 S.E. 2d 116 (1979); Street v. Warden, 423 F. Supp. 611 (D. Md. 1976), aff’d, 549 F. 2d 799 (4th Cir. 1976) (unpublished opinion), cert. denied, 431 U.S. 906, 52 L.Ed. 2d 390, 97 S.Ct. 1700 (1977).
4 As we have found any errors in the defendant’s original trial to be harmless, we need not address his assignment and contentions relative to the failure of his counsel, during the direct appeal of his conviction, to raise such errors as grounds for a new trial.
5 We have assumed arguendo throughout this opinion that the instructions of the trial court during the defendant’s original trial placed an unconstitutional burden of proof upon the defendant with regard to self-defense and the absence of malice resulting from a killing in the heat of passion. Infra n. 2. Therefore, we also assume arguendo that the defendant showed the existence of the asserted ground for relief.
6 The use of this latter definition of “prejudice” in the context of a statute providing for collateral attacks upon criminal convictions is entirely new to the law of this jurisdiction and appears to provide relief to convicted criminal defendants in excess of that previously provided by this Court or the Supreme Court of the United States. In the recent case of United States v. Frady, 456 U.S. 152, 71 L.Ed. 2d 816, 102 S.Ct. 1584 (1982), the Supreme Court of the United States announced the standard it would apply under 28 U.S.C. ß 2255 in reviewing collateral attacks upon criminal convictions. There, the Supreme Court of the United States held that a convicted defendant must show both cause excusing his failure to raise the asserted errors on direct appeal and “actual prejudice” resulting from the errors. 456 U.S. at 167, 71 L.Ed. 2d at 830, 102 S.Ct. at 1594. Under this standard, the defendant has “the burden of showing not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” 456 U.S. at 170, 71 L.Ed. 2d at 832, 102 S.Ct. at 1596.

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Frank Duncan, Los Angeles, Cal., for appellant.
Manuel L. Real, U. S. Atty., John K. Van de Kamp, Chief Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Crim. Div., Burt S. Pines, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES and KOELSCH, Circuit Judges, and THOMPSON, District Judge.
Appellant was found guilty by a jury of the crime of concealing and facilitating the transportation and concealment of heroin (21 U.S.C. § 174) as charged in a one count indictment.
On this appeal he does not dispute the fact that at the time of his arrest for drunken driving the officers, pursuant to the incidental search of his automobile, discovered several packages containing heroin beneath the front seat. His sole assignment is that the trial judge erred in permitting the government on its case in chief to introduce evidence, over objection, that approximately five months earlier heroin similarly packaged was found in the trunk of his automobile under the floor mat.
The statute renders unlawful the concealment etc. of heroin known to have been unlawfully imported into the United States and makes proof of possession of the drug sufficient evidence to authorize a conviction unless the defendant explains the possession to the satisfaction of the jury. Here the evidence was admitted, under the judge's limiting instruction to the jury, solely upon the issue of defendant's knowledge and intent on the crime charged. In presenting its case, the government relied upon the statutory presumption and was thus obliged to establish that the possession was a knowing one. Evans v. United States, 257 F.2d 121 (9th Cir. 1958), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958). That this evidence was susceptible of such an inference can hardly be questioned for the automobile belonged to the defendant, had been recently operated by him, and was subject to his control. Thus, in Eason v. United States, 281 F.2d 818, 820 (9th Cir. 1960), this court quoted with approval the following language contained in Evans, 257 F.2d at p. 128: "[p]roof that one had exclusive control and dominion over property on or in which contraband narcotics are found is a potent circumstance tending to prove knowledge of the presence of such narcotics, and control thereof."
The earlier incident was wholly unconnected with the crime charged and should not have been disclosed if it tended to prove nothing more than the defendant's bad character. Enriquez v. United States, 314 F.2d 703 (9th Cir. 1963). However, it was probative on the issue of knowledge of the defendant in connection with the crime here for it increased the probability that it was he who had put the narcotics in the car. Reid v. United States, 334 F.2d 915 (9 Cir. 1964); 2 Wigmore, Evidence § 301, at 193 (3d ed. 1940).
"In order to render the verdict and judgment of not guilty upon the draft offered in evidence conclusive upon the facts which the prosecution sought to prove for the purpose of showing guilty knowledge, it must appear with certainty from the evidence offered in support of the alleged estoppel that those facts were directly and necessarily found by the verdict in that case in favor of the defendant; or, in other words, that the jury could not have found the verdict which they did without having passed directly upon the facts offered to be proved and found them against the prosecution; for if it be doubtful upon which of several points the verdict was founded, it will not be an estoppel as to either. * * No evidence as to the estoppel, either by the record or by parol, was offered and the whole question as to what facts were directly determined in the first case is to be determined upon the bald admission of the District Attorney that the defendant had been indicted for forging the endorsement upon the draft in question and for uttering the draft knowing the endorsement to be forged and that he had been tried upon such indictment and found not guilty by the jury. * * *"
State v. Little, 87 Ariz. 295, 350 P.2d 756, 86 A.L.R.2d 1120 (1960), a case heavily relied upon by the defendant, is not contrary to these views. The Arizona Supreme Court did not decide that an acquittal would necessarily make proof of a prior criminal act inadmissible on the ground of a supposed estoppel.2 Rather, that court concluded such evidence was so unduly prejudicial that its admission was manifestly unfair to the defendant.
The rule in the federal courts is well settled that "[t]rial judges have a measure of discretion in allowing testimony which discloses the purpose, knowledge, or design of a particular person." Glasser v. United States, 315 U.S. 60, 81, 62 S.Ct. 457, 470, 86 L.Ed. 680 (1942).3 And we perceive no compelling reason to engraft upon this rule a limitation that would prevent the introduction of such evidence in any instance simply because of the added factor of acquittal. To the contrary, we believe that despite the acquittal the matter of admission or rejection is and should be addressed to the sound discretion of the trial judge, thus fostering the policy which favors the admission of evidence while at the same time protecting the defendant in instances where the trial judge errs.
In this case the conclusion of the trial judge concerning the relevancy of the evidence, together with his repeated instruction limiting its admissibility to the jury, was not an abuse of discretion.
We are not altogether clear whetherLittle holds an acquittal precludes such proof in every case. If it does, we disagree.
"Rule 303. Discretion of Judge to exclude Admissible Evidence.
(c) unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered * * *."
We note that in Little the questioned evidence had only slight value. Indeed the court earlier in the opinion had held it inadmissible without reference to the matter of acquittal, because the proof was admitted for the purpose of showing the instant sale was part of a scheme or plan and that "for all that appears in the record the alleged prior sales were unrelated to each other and to the instant sale." On that basis alone the admission was error.


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Our experience includes litigating copyright infringement, trade secret, patent infringement, unfair competition, and related causes of action.
Our firm routinely litigates on behalf of plaintiffs, defendants, and amici in intellectual property cases. Our experience includes litigating copyright infringement, trade secret, patent infringement, unfair competition, and related causes of action. Our attorneys have substantial experience litigating these claims in federal district courts around the country, in particular in the Eastern District of Virginia’s “rocket docket.” We also have represented parties and amici in the Supreme Court and federal courts of appeal.
OpenRisk, LLC v. MicroStrategy Services Corp., No. 1:15cv1451 (E.D. Va.) & No. 16-1852 (4th Cir.). We represented the defendant in a case arising out of the plaintiff’s efforts to develop a web-based platform using the defendant’s software product. We obtained a complete victory for the client in the trial court and secured affirmance of that ruling in the Fourth Circuit.
Cava Mezze Grill, LLC v. Mezeh, Inc., No. 1:17-cv-1148 (E.D. Va.). We represent the plaintiff in an action filed against a direct competitor alleging violations of the Lanham act.
L-3 National Security Solutions v. Innovative Wireless Technologies, No. 12-cv-00059 (E.D. Va.). We represented the plaintiff and counterclaim-defendant in a case arising out of the parties’ contract to develop and market communications technology.
Atlantic Recording Corp., et al. v. Project Playlist, Inc,. No. 08 Civ. 3922 (S.D.N.Y.). We represented six Universal and Warner record labels in a copyright infringement suit directed at a Palo Alto company that streamed our clients’ copyrighted recordings to users around the world without permission. After about a year of litigation, we forced the defendant to settle. They entered prospective licensing agreements with our clients, and paid fees for past infringements.
Tybrin v. Northrop Grumman Space & Mission Systems Corp., A. No. 3:09-CV-115 (N.D. Fla.). We represented Northrop Grumman Corp. in a suit alleging that it had breached a software license and infringed the plaintiff’s copyrights by marketing aviation mission planning software to military contractors overseas. The court denied the plaintiff’s motion for a preliminary injunction after a day-long evidentiary hearing, and the case settled immediately thereafter on favorable terms.
Unova Inc. v. Acer Inc., 363 F.3d 1278 (2004). We represented Unova in a Federal Circuit appeal involving the enforcement of a patent-release clause. The Federal Circuit reversed the grant of summary judgment against our client and ruled that our reading of the clause was correct as a matter of law, allowing our client to pursue patent-infringement claims against Acer’s parent company.
Microsoft Corp. v. i4i Limited Partnership, 131 S. Ct. 2238 (2011). We represented Apotex, Inc., a major generic pharmaceutical manufacturer, as amicus curiae in a case involving the proper standard of proof for patent invalidity.
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013). We represented Costco Wholesale Corp., as amicus in support of petitioner, in a Supreme Court case addressing whether the Copyright Act’s first-sale doctrine reaches copies made and sold abroad by a U.S. copyright holder. In March 2013, a 6-3 majority of the Court adopted the position advanced by Costco, with extensive citation to legislative history presented in Costco’s brief.

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If we obtain the consent of a data subject for processing personal data, the legal basis for processing such personal data is Art. 6 para. 1 lit. a) EU General Data Protection Regulation (hereinafter “GDPR”). If we process personal data that are necessary to perform a contract to which the data subject is a party, the legal basis for processing such personal data is Art. 6 para. 1 b) GDPR. The same applies if processing personal data is necessary to perform pre-contractual measures. If processing personal data is necessary to perform a legal obligation of our company, the legal basis for such data processing is Art. 6 para. 1 lit. c) GDPR. If processing personal data is necessary to protect a legitimate interest of our company or a third party and the interests, fundamental rights and fundamental freedoms of the data subject do not outweigh that legitimate interest, the legal basis for such data processing is Art. 6 para. 1 lit. f) GDPR.
Such data will be stored in log files of our system. Such data are needed only to analyze any malfunctions and will be erased at the latest within seven days. The legal basis for temporarily storing data in log files is Art. 6 para. 1 lit. f) GDPR. Temporary storage of the IP address for the system is necessary for making the Website available to the terminal device of the user. For this purpose the IP address of the user must be stored for the duration of the session. Data are stored in log files to ensure the functionality of our Website. In addition, such data are used to optimize the Website and to ensure the security of our IT systems. Data will not be analyzed for marketing purposes in this connection, and we will draw no inferences as to your identity. The aforementioned purposes also provide the basis of our legitimate interest in data processing within the meaning of Art. 6 para. 1 lit. f) GDPR. Collecting data to make available the Website and storing data in log files is necessary for operating the Website. Consequently, users have no right to object to the collection or use of such data for the aforementioned purposes.
We also link to the website of LinkedIn Ireland Unlimited Company, Wilton Place, Dublin 2, Ireland (hereinafter “LinkedIn”). Otherwise no data are exchanged with LinkedIn on our Website.
As part of the provision of the app, we store and process the data records necessary for the operation of the app. For this purpose we also store data in logs when using the app. Logs represent protocols of certain technical contents.
In our apps we use the “Software Developer KIT” (SDK) of the social network Facebook, 1601 South California Avenue, Palo Alto, CA 94304, USA. So-called tracking pixels are integrated in the App. When you use our App, the SDK establishes a direct connection between your browser or mobile device and the Facebook server.
Facebook thus receives information from your device, among other things, that our App has been accessed by your terminal device. If you are a Facebook user, Facebook can assign the visit to App to your user account. We would like to point out that, as the provider of the App, we do not have any knowledge of the content of the data transmitted or its use by Facebook. We can only select which segments of Facebook users (such as age, interests) our advertising should be displayed.
Facebook can also recognize whether a Facebook ad was successful, e.g. whether it led to an online purchase. This allows us to measure the effectiveness of Facebook ads for statistical and market research purposes.
We use a method of working in which no data records, in particular no e-mail addresses of our users – neither encrypted nor unencrypted – are transmitted to Facebook.
We use the data collected in the Facebook analysis tool “Facebook Analytics” to optimize our apps.
You may log in to our services via Facebook Connect, a service of Facebook Inc., 1601 S. California Ave, Palo Alto, CA 94304, USA or, if you reside in the EU, Facebook Ireland Ltd., 4 Grand Canal Square, Grand Canal Harbour, Dublin 2, Ireland (“Facebook”). If you use Facebook Connect, an additional registration is not necessary. To log in, you are redirected to the Facebook website where you can log in with your user data. This links your Facebook profile and our service. Through the link, we automatically receive information from Facebook. The following information is transferred to us: Facebook ID.
In our App you may contact us via the in-app contact form. You will be transferred to a website hosted by our partner Zendesk Inc., 1019 Market St, San Francisco, CA 94103, USA.
The legal basis for processing the data if the user’s consent has been obtained is Art. 6 para. 1 lit. a) GDPR.
Legal basis for the processing of data which is collected in the course of the transmission of an email is Art. 6 para. 1 lit. f), GDPR. If the email contact is aimed at the conclusion of a contract, the additional legal basis for the processing is Art. 6 para. 1 lit. b) GDPR.
We only use personal data provided on contact forms for processing of contact. If you contact us by email, processing also occurs in the necessary legitimate interest in the processing of the data.
Other personal data processed during the sending process are used to prevent misuse of the contact form and to ensure security of our information technology systems.
The data will be deleted as soon as it is no longer necessary to achieve the purpose for which it was collected. For the purpose of fighting fraud and improving support, the data is stored for six months.
The user has the possibility at any time to withdraw his consent to the processing of personal data. If the user contacts us, he can revoke consent to the storage of his personal data at any time. In such a case, it will not be possible to continue saving data. In this case, all personal data stored when establishing contact with us shall be deleted.
Zendesk is certified under the Privacy Shield Agreement, which provides a guarantee to comply with European data protection law (https://www.privacyshield.gov/participant?id=a2zt0000000TOjeAAG&status=Active).
In our App we use the In-Game and Live Ops Platform KTPlay of Kryptanium Hong Kong Ltd, Room A, 22/F Southtex Building, NO.51 Tsun Yip Street, Kwun Tong, Kowloon, Hong Kong (Forum) for in game communication with the community.
As we offer the Forum as an in-game service for the users, it is aimed at the conclusion of a contract, and the (additional) legal basis for the processing is Art. 6 para. 1 lit. b) GDPR.
We only use personal data provided in the forum for offering a communication service. If you use the forum, processing also occurs in the necessary legitimate interest in the processing of the data.
Other personal data processed during the sending process are used to prevent misuse of the forum and to ensure security of our information technology systems.
We use the mobile tracking technology of adjust GmbH, Saarbrücker St. 38a, 10405 Berlin, Germany (“Adjust”) to collect statistical data about your use of our services in order to continually improve them. When you use our apps, your device sends us information that we collect and analyze. We collect the following: IP address that is immediately anonymized, MAC address, anonymized device ID (Identifier For Advertisers – IDFA or Google Advertiser ID – GAID), language, time and date of access, statistical information about the use of our services. There are no direct personal identifiers. The data collected in this way is used to create anonymous user profiles. The data collected with the tracking technology will not be used to personally identify the visitor of these websites without the express consent of the person concerned. For more information, please refer to the Adjust data protection policy at: https://www.adjust.com/privacy-policy.
The purpose is to improve your user experience with our services and to make our offer more attractive to you. In addition, the data collected is used to analyze the performance of marketing campaigns and generate performance reports.
Data collection and storage can be halted at any time with future effect by configuring your mobile device.
Android: Open the settings in your app list and tap on the “Ad” button. Once you have opened the ad window, you can disable the Google Advertising ID.
iOS: Open the settings on your mobile end device (e.g. iPhone or iPad) and select the menu option “Data protection”. Under the option “Advertising”, you can switch off the ad tracking.
San Francisco, CA 94107 to collect statistical data about your use of our services in order to continually improve them. When you use our apps, your device sends us information that we collect and analyze. Amplitude collects data about the progression in our games. Amplitude is certified under Privacy Shield: https://www.privacyshield.gov/participant?id=a2zt000000001XZAAY&status=Active.
The legal basis for this processing is Art. 6(1)(f) GDPR. We have entered into a data processing agreement with Amplitude.
The purpose is to improve your user experience with our services and to make our offer more attractive to you. In addition, the data collected is used to analyze the progression of users in our games.
The data will be retained by us for the duration of use of the service. For more information, see https://amplitude.com/privacy.
We cooperate with companies that connect advertisers to us that want to host advertisements in our App.
The legal basis for processing the personal data using ad-networks is analysis, optimization and economical operation of our App within the meaning of Art. 6 par. 1 lit. f) GDPR.
We may include third-party advertisements based on marketing services.
AdMob is a mobile application advertising platform operated by Google Ireland Ltd., Gordon House, Barrow Street, Dublin 4, Ireland. It’s used to promote our App and to help advertisers enabling in-app advertising. AdMob also works with Google Analytics to help us to get information about our App’s usage and its effectiveness for any advertising campaigns.
For further information on data usage by Google, setting and blocking options, please see the Google websites: https://www.google.com/intl/de/policies/privacy/partners (“How Google uses information from sites or apps that use our services”) https://www.google.com/policies/technologies/ads (“Use of data for advertising purposes” https://www.google.com/settings/ads (“Control the information Google uses to show you ads”).
AppLovin is a mobile marketing service of the AppLovin Corporation, Palo Alto, California, USA, that provides us with a platform to deliver advertising to our consumers. Their technology enables us to show mobile application users more relevant advertising that is based on users’ interest in applications. In order to provide these services, AppLovin collects and uses certain information about user activity in mobile applications.
AppLovin is certified under the Privacy Shield Agreement, which provides a guarantee to comply with European data protection law (https://www.privacyshield.gov/participant?id=a2zt0000000TNsVAAW&status=Active).
IronSource is an adware service operated by ironSource Ltd., Tel Aviv, Israel. Their technology enables us to show mobile application users more relevant advertising that is based on users’ interest in applications. In order to provide these services, IronSource collects and uses certain information about user activity in mobile applications.
UnityAds is a social media marketing service, integrated in our App, operated by Unity Technologies, 30 3rd Street, San Francisco, CA 94103, USA. Their technology enables us to show mobile application users more relevant advertising that is based on users’ interest in applications. In order to provide these services, UnityAds collects and uses certain information about user activity in mobile applications.
Vungle is an in-app video advertising platform operated by Vungle, Inc., 1255 Battery Street Suite 500, San Francisco, CA 94111 USA, with an office in London (6th floor WeWork, Aviation House 125 Kingsway, London, WC2B 6NH) and Berlin (Greifswalder Strasse 212, 10405 Berlin). Their technology enables us to show mobile application users more relevant advertising that is based on users’ interest in applications. In order to provide these services, Vungle collects and uses certain information about user activity in mobile applications.
Vungle is certified under the Privacy Shield Agreement, which provides a guarantee to comply with European data protection law (https://www.privacyshield.gov/participant?id=a2zt00000008SwjAAE&status=Active).
Facebook Inc., 1601 S. California Ave, Palo Alto, CA 94304, USA or, if you reside in the EU, Facebook Ireland Ltd., 4 Grand Canal Square, Grand Canal Harbour, Dublin 2, Ireland (“Facebook”) provides a mobile advertising platform. Their technology enables us to provide advertising to our users.
(8) whether your personal data will be transferred to any third country or international organization; in connection with such transfers you may demand to be informed of appropriate safeguards within the meaning of Art. 46 GDPR.
(4) if you have objected to processing of your personal data in accordance with Art. 21 para. 1 GDPR and it has not yet been determined whether there are overriding legitimate reasons of the controller.
(6) your personal data were collected with respect to offered information society services within the meaning of Art. 8 para. 1 GDPR.
(4) to assert, exercise, or defend legal rights or claims.
(2) data processing is automated.
You have the right for reasons related to your particular situation to object to processing of your personal data at any time based on Art. 6 para. 1 lit. e) or f) GDPR; the same applies to any profiling based on the aforementioned provisions.
In connection with use of information society services you may exercise your right of objection – regardless of Directive 2002/58/EC – by using automated processes for which technical specifications are used. For this purpose you may send an email to us.
However, such decisions may not be made with respect to special categories of personal data within the meaning of Art. 9 para. 1 GDPR, unless Art. 9 para. 2 lit. a) or g) GDPR applies and appropriate safeguards have been implemented to protect your rights, freedoms, and legitimate interests.

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Should Recruiters Be Paid Overtime In California?
Can Recruiters Be Exempt From Overtime Under The Administrative Exemption?
(iii) how much of the recruiter’s time is spent on clerical and routine tasks compared to how much time is spent exercising discretion with respect to important matters.
In certain key respects, the exemptions under California law are more difficult to satisfy than the corresponding FLSA exemptions. First, under California law, the employer must realistically expect that the recruiter will actually spend 50% of their time engaged in work that is of substantial importance to the business. For example, negotiating employment terms with potential candidates or exercising authority to make decisions about whether a candidate should advance to the next step in the hiring process would be of substantial importance. Also, the California Labor Code states that the recruiter may not spend more than 20% of her working time engaged in work that is not directly and closely related to work that is of substantial importance to the business. Thus, a recruiter should be non-exempt if more than 20% of her time is spent engaged in clerical work like assembling lists of candidates, preparing information about those candidates according to standard forms, and making cold calls. Unlike the California Labor Code, the FLSA does not contain a strict 50% threshold for administratively exempt work or a strict 20% disqualification for non-essential, clerical work.
Third, in California the recruiter must have autonomy. Thus, the recruiter must work under “general supervision” and must perform work that requires “special training, experience or knowledge.” The FLSA does not contain similar requirements.
Fourth, California law sets a much higher salary threshold than the FLSA ($37,740 vs. $23,660 annualized) which could render non-exempt some entry-level recruiters who are paid primarily with incentive compensation which does not count toward the salary threshold even if it is regularly paid to the recruiter.
There are two basic kinds of recruiter positions: internal and external. An internal recruiter is employed by a large company and has a primary duty of locating candidates for open positions within their employer’s organization. An external recruiter is employed by a company whose core business is locating and providing permanent job candidates and temporary employees to third parties.
External recruiters are less likely than internal recruiters to qualify for the administrative exemption for two reasons. First, external recruiters may fall on the “production” side of the “administrative/production dichotomy” which holds that one who is involved in producing an employer’s product is not generally performing administrative work. Many would argue that employees — both temporary and permanent — are the product of a staffing firm and recruiters are “producing” that product by placing employees with clients.
The leading case in California adopts this view. See, Pellegrino v. Robert Half International, Inc., 182 Cal. App. 4th 87 (2010) (applying the California Labor Code). There, the California Court of Appeal concluded that “account executives” at the staffing company Robert Half did not satisfy the administrative exemption because those recruiters produced Robert Half’s key product (temporary employees) by identifying candidates and selling them to companies that might have been interested in hiring them.[iii] But, some courts, particularly when applying the FLSA, have disagreed. Andrade v. Aerotek, 700 F.Supp.3d 738, fn. 7 (D. Md. 2000) (applying the FLSA and concluding external recruiter was exempt under administrative exemption because the services of Aerotek’s contractors were the product of its business, not the contractor themselves, and therefore the recruiter was on the “administrative” side of the dichotomy).
In addition, many external recruiters spend significant time “placing” or “sourcing” candidates with third-parties in what is essentially telephone and online sales work. These selling activities are generally not considered “qualitatively administrative” in California or under the FLSA. See 29 C.F.R. § 541.205 (2000); 29 C.F.R. § 541.201(a)-(b) (2004). Thus, a court may conclude that the recruiter is primarily engaged in sales (i.e. speaking with potential candidates). And, therefore, the recruiter has a primary duty that is not administrative and/or California’s 20% disqualification applies.
How a recruiter actually spends her time and whether she may make decisions that are real, substantial and consequential for her employer will ultimately determine whether an exemption applies. For example, entry-level recruiters often begin their job with no experience and little training or special knowledge. They spend their time assembling lists, cold calling and making few substantive choices.
These sorts of recruiter positions, whether internal or external, will not be exempt from overtime. Rather, they are due overtime and must be provided with meal and rest periods. Moreover, this conclusion can apply on a class-wide basis. See Lazarin v. Pro Unlimited, Inc., Case No. C11-03609 HRL (N.D. Cal., July 11, 2013) (approving a class action settlement agreement that paid class members an average of $18,347); Betancourt v. Maxim Healthcare Services, Inc., Case No 10 C 4763 (N.D. Ill., April 21, 2011) (granting conditional certification to class of recruiters).
Thus, the DOL would conclude that an external recruiter is not exempt from overtime unless her job requires detailed comparisons of an employer’s need and the skills of prospective employees. Likewise, an internal recruiter must be doing more than simply assembling a database of prospective candidates who meet certain minimum qualifications and then attempting to bring all of them in for interviews.
Many recruiter positions involve very infrequent exercises of discretion with respect to matters of significance. These positions are not exempt from overtime under federal or California law. However, some positions may be exempt, particularly those that serve as the primary liaison for recruiting high-level executives or filling positions with specific and nuanced needs. Recruiters who are improperly classified as exempt from overtime may recover substantial damages and penalties. Some examples of potential recoveries are available via litigation are here. Similar recoveries may be gained through the strategic negotiation of a separation agreement (see related post).
If you are a recruiter in California and believe you were improperly classified as an exempt employee, do not hesitate to contact Sebastian Miller Law for a no-fee consultation.
Disclaimer: All materials have been prepared for general information purposes only to permit you to learn more about Sebastian Miller Law, P.C, its services and experience. The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.
[i] In addition to the administrative exemption, an external recruiter can, conceivably, qualify for the commission sales exemption. To commission sales exemption requires that more than half the recruiter’s compensation must come from commissions and their weekly salary paid them more than 1.5X the minimum wage. This exemption is discussed in more detail here and will apply to only the most highly compensated recruiters. An internal recruiter, however, cannot satisfy the commission sales exemption because they do not sell job candidates to their employer.
[ii] In addition, employees pursuing claims under the FLSA must reckon with an opinion letter from the Department of Labor that states staffing managers could qualify for the administrative exemption. Dep’t of Labor Opinion Ltr., Wage & Hour Div., 2005 WL 3308616 (Oct. 25, 2005). This letter is interprets regulations that were issued in 2004 and are not applicable in California. Further, courts have found it inapplicable to some recruiter positions. Odgen v. CDI Corp., Case No. CV08-2180 PHX DCG, 2010 WL 2662274, *5 (D. Ariz. June 30, 2010) (distinguishing opinion letter and finding issues of fact exist precluding summary judgment because there was no evidence the external recruiter managed employees who were on assignment, reviewed the employees, or administered any discipline).
[iii] This result is consistent with a July 26, 1999 Division of Labor Standards Enforcement opinion letter. But it may be undermined by the California Supreme Court’s opinion in Harris v. Superior Court, 53 Cal.4th 170, 190 (2011) which held that the administrative/production dichotomy was just one analytical tool and not a dispositive test.
Sebastian Miller Law, P.C. © 2019, all rights reserved.


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Compiled and translated from Bull. MOIP, Otd. biol. 1980, 85 (4): 97-104 and Bot. Zhurn. 2005, 90 (1): 125-137, with additions.
All publications are in Russian, unless it is stated otherwise. Original publications may differ as regards English versions of article titles. Entries edited or clarified are marked with an asterisk. Translation: I. Kadis.
1947a Argentaffine fibers of the spleen in bony fishes. — DAN 55 (3): 251-254.
1947b On the structure of the spleen in bony fishes. — DAN 58 (6): 1159-1162.
1947c Dentaria tenuifolia Ledeb. — a new plant in the flora of Moscow [Oblast.] — Byull. MOIP, Otd. biol. 52 (2): 91-92.
1947d On geotropic morphoses in higher fungi. — Priroda 7: 67-68.
1947e The steppe vegetation in the basin of the Osetr middle reaches, Moscow Oblast. — Byull. MOIP, Otd. biol. 52 (6): 37-47.
1948a Microscopic anatomy of the spleen in cartilaginous ganoids. — DAN 59 (9): 1643-1646.
1948b On the histologic structure of the spiral valve in the intestine of Cyclostomata. — DAN 61 (4): 705-708.
1948c On the vegetative reproduction of the spruce. — Priroda 10: 73-74.
1949a Some data on the comparative morphology of mast cells. — DAN 67 (3): 551-554.
1949b On the vegetation of the relic peat bog near Mount Epiphan. — Byull. MOIP, Otd. biol. 54 (4): 101-104.
1950a To the comparative morphology of leukocytes in mammals. — DAN 73 (3): 577-580.
1950b Natural intergeneric hybrid Draba x Schiwereckia. — Bot. zhurn. 35 (6): 655-657.
1951a Central Russian Upland: some destinations notable in the botanical sense. — Okhrana prirody 14: 125-134. Moscow.
1951b On the steppe flora and vegetation at the extreme northeast of the Central Russian Upland. — Byull. MOIP, Otd. biol. 56 (3): 86-96.
1951c A new species of buttercup from Central European Russia. — Byull. MOIP, Otd. biol. 56 (5): 79-80.
1953 A new species of touch-me-not from the Urals. — Byull. MOIP, Otd. biol. 58 (4): 59-60.
1955 Willows of Central European Russia and their identification during the wintertime. — Byull. MOIP, Otd. biol. 60 (3): 115-127.
1956a Commentationes de morphologia et systematica salicarum. 2. A new willow species from the Eastern Sayans. — Byull. MOIP, Otd. biol. 61 (1): 76-78.
1956b Commentationes de morphologia et systematica salicarum. 5. Some additions and amendments to the willow flora of West Siberia. — Sist. zametki gerb. Tomsk. un-ta, 79-80: 13-15.
1957a Commentationes de morphologia et systematica salicarum. 3. A new willow species from the section Chrysanthae W. Koch. — Bot. materialy gerb. BIN 18: 34-42.
1957b Commentationes de morphologia et systematica salicarum. 4. On the correct species epithet for Chosenia. — Bot. materialy gerb. BIN 18: 42-47.
1957c Note concerning No 4013 in the Herbarium of the USSR Flora (Salix rectijulis). — Spisok rasteniy gerbariya Flory SSSR 14 (81): 12-13.
1959a Contribution to the forest flora of Stalingrad Oblast. — Bot. zhurn. 44 (3): 554-558.
1959b Commentationes de morphologia et systematica salicarum. 6. Note on taxonomic treatments, relations, and distribution of Salix jenisseensis. — Bot. materialy gerb. BIN 19: 83-88.
1959c New floristic findings in the vicinity of the Denezhkin Kamen (Northern Urals). — Bot. materialy gerb. BIN 19: 558-571.
1959d New data on distribution of some rare and interesting plants in Moscow Oblast. — Biol. nauki 3: 164-167.
1960a* About two rare grasses in the flora of temperate European Russia. — Nauchn. dokl. vysshei shkoly, Biol. nauki 2: 116-120.
1960b* Critical review of willows from Turkmen SSR. — Bot. materialy gerb. BIN 20: 68-85.
1960c Salix kangensis — an interesting novelty of the USSR flora. — Bot. materialy gerb. BIN 20: 85-89.
1960d A new willow species from the Caucasus. — DAN ArmSSR 31 (5): 299-303.
1960e Salix pentandra and related species. — Trudy MOIP 3: 247-262.
1960f On one grass species new to the Russian European temperate flora: long-leaved fescue. — Byull. MOIP, Otd. biol. 65 (5): 75-80.
1960g* On species of the genus Ramischia. — Vestnik Mosk. un-ta. Ser. 6, Biol. 1: 61-67.
1960h Interspecific grass hybrid Festuca rubra L. x F. longifolia Thuill. — DAN 131 (4): 951-953.
1961a* Willows from the Soviet Central Asia cultivated in Moscow. — Nauchn. dokl. vysshei shkoly, Biol. nauki 2: 155-159.
1961b Collection of willow species in the Moscow University Botanic Garden. — Byull. GBS 40: 9-16.
1961c Commentationes de morphologia et systematica salicarum. 9. Notes on Salix berberifolia Pall. and taxa related to it. — Bot. materialy gerb. BIN 21: 83-92.
1961d Contribution to the flora of Smolensk and Kaluga oblast's. — Bot. materialy gerb. BIN 21: 438-450.
1961e Willows of the section Phylicifoliae in the USSR flora. — Byull. MOIP, Otd. biol. 66 (4): 26-33.
1961f* Sieben neue Salix-Arten aus der Sowjetunion. — Feddes Repert. 64 (1): 73-81. In German.
1961g On J. R. Forster's trip to the Lower Volga Basin in 1765. — Bot. zhurn. 46 (1): 151-154.
1962a Willows of the Soviet Central Asia: a brief review. — Bot. mat-ly gerb. In-ta botaniki AN UzbSSR 17: 43-74.
1962b Salicaceae of Thailand. — Dansk Bot. Arkiv 20 (2): 179-182. In English.
1963a In memory of Mikhail Ivanovich Nazarov (on the 20th anniversary of his death.) — Bot. zhurn. 48 (2): 302-306.
1963b N. A. Bazilevskaya. (on the 60th anniversary of her birth and 40th anniversary of scientific and social activity.) — Bot. zhurn. 48 (3): 465-466.
1963c* Book Review: F. H. Perring, S. M. Walters. (eds.) 1962. Atlas of the British Flora. Publ. for the Botanical Society of the British Isles. New York: T. Nelson. 432 pp. — Byull. MOIP, Otd. biol. 68 (3): 145-147.
1964a* Festuca, Trisetum, Salicaceae, Onagraceae, Pyrolaceae. In: P. F. Mayevsky. Flora srednei polosy yevropeiskoi chasti SSSR [Flora of the European USSR temperate belt.] 9th ed. Leningrad: Kolos. Pp. 184-199, 359-363, 397-400, 752-756, 790.
1964b The genus Festuca. In: Arkticheskaya flora SSSR [Arctic Flora of the USSR.] 2. Leningrad: Nauka. Pp. 208-223.
1965a Salices novae. — Novosti sistematiki vyssh. rast. 1965: 90-97.
1965b On visiting botanic institutions of German Democratic Republic. — Bot. zhurn. 50 (12): 1783-1787.
1966a Review of willows from the Caucasus and Asia Minor. — Trudy Bot. in-ta AN ArmSSR 15: 91-141.
1966c* Salicaceae. — Arkticheskaya flora SSSR [Arctic Flora of the USSR.] 5. Leningrad: Nauka. Pp. 7-118.
1966f Commentationes de morphologia et systematica salicarum. 13. About Salix purpurea L. and the species related to it. — Novosti sistematiki vyssh. rast. 1966: 48-66.
1966g Commentationes de morphologia et systematica salicarum. 14. About some willows from the Indian Himalayas. — Novosti sistematiki vyssh. rast. 1966: 67-74.
1966i* Book Review: E. Milne-Redhead. (ed.) 1963. The conservation of the British flora. Report of the conference held in 1963 by the Botanical Society of the British Isles. London. 90 pp. — Byull. MOIP, Otd. biol. 71 (2): 159-160.
1966j* Book Review: W. K. Martin 1965. The concise British flora in colour. With nomenclature edited by D. H. Kent and foreword by Prince Phillip, Duke of Edinburgh. London: Ebury Press. 231 pp. — Bot. zhurn. 51 (5): 747-748.
1966k* Book Review: J. J. Wanstall (ed.) 1963. Local floras. Bot. Society of the British Isles. Conference Reports 7. London. — Bot. zhurn. 51 (5): 748-749.
1967a Book Review: M. Kundzins, È. Vimba. 1965. Wild flowers. Riga. — Byull. MOIP, Otd. biol. 72 (4): 132-133.
1967b [Principal phases of advancement in our understanding of the species.] — Byull. MOIP, Otd. biol. 72 (5): 11-27.
1967c Improvements in the procedure of drying plants for the herbarium. — Bot. zhurn. 52 (7): 975-978.
1967d The establishment of the contemporary notion of the species. — Novoye o zhizni rasteniy [New facts concerning plant life.] Narodn. un-t, yest.-nauch. fak-t 8-9. Moscow. Pp. 94-106.
1967e On some willow species from East Siberia and the Far East: their systematics, geography, and nomenclature. — Sistem. zametki gerb. im. P. N. Krylova Tomsk. un-ta 84: 11-15.
1967f Notes concerning No 4807-4808 in the Herbarium of the USSR Flora (Populus alba, P. tremula). — Spisok rasteniy gerbariya Flory SSSR 17 (97): 56-57.
1968a Nomenclature and typification in the genus Salix L. Subgenera, sections, subsections pretaining to the flora of the USSR. — Novosti sist. vyssh. rast. 1968: 62-72.
1968b* Ivy SSSR. Sistematicheskiy i geograficheskiy obzor [Willows of the USSR. Taxonomic and geographic revision.] Moscow: Nauka. 262 pp.
1968c Salix. In: Flora Tadzhikskoi SSR [Flora of Tajik SSR] 3. Leningrad. Pp. 57-96.
1968d* Book Review: D. H. Kent (comp.) 1967. Index to botanical monographs: a guide to monographs and taxonomic papers relating to phanerogams and vascular cryptogams found growing wild in the British Isles. Publ. for the Botanical Society of the British Isles. London: Academic P. 163 pp. — Bot. zhurn. 53 (11): 1645-1646.
1969a On the distribution of "the Oka River flora" elements in southern Moscow Oblast and on adjacent territories of Tula and Kaluga oblast's. — Mat-ly k pozn. fauny i flory SSSR, Otd. bot. 13 (21): 76-97.
1969b* Salix. In: K. H. Rechinger. Flora Iranica. Flora des iranischen Hochlandes und der umrahmenden Gebirge. Graz: Akademische Druck- und Verlagsanstalt, 1963-. N 65, pp. 12-43. In German.
1969c* Book Review: J. A. Calder, R. L. Taylor, G. A. Mulligan 1968. Flora of the Queen Charlotte Islands. Part 1. Systematics of the vascular plants, by Calder and Taylor. 659 pp. Part 2. Cytological aspects of the vascular plants, by Taylor and Mulligan. 148 pp. Monogr. Res. Branch Canad. Dept. Agric. 4 (1, 2). Ottawa: Queen's Printer. — Bot. zhurn. 54 (8): 1306-1308.
1970a A new species of Circaea from the Caucasus. — Byull. GBS 77: 34-36.
1970b What Epilobium uralense Rupr. actually is. — Novosti sist. vyssh. rast. 7: 244-247.
1970c Distinctiveness, relations, and geographic distribution of Circaea caulescens. — Novosti sist. vyssh. rast. 7: 247-252.
1970d Salix. In: Konspekt flory Pskovskoi obl. [Checklist of Pskov Oblast flora.] Leningrad. Pp. 58-60.
1970e A trip to Denmark. — Bot. zhurn. 55 (11): 1705-1712.
1970f Notes concerning No 4963-4965 in the Herbarium of the USSR Flora (Salix alba, S. glauca, S. saxatilis). — Spisok rasteniy gerbariya Flory SSSR 18: 39-40.
1971a* Book Review: Derevya i kustarniki SSSR [Trees and shrubs of the USSR.] Vol. 1-6 AN SSR Publ., 1949-1962; vol. 7 Moscow-Leningrad: Nauka, 1965. — Bot. zhurn. 56 (7): 1025-1034.
1971b* Book Review: B. Hansen and K. Rahn 1969. Determination of angiosperm families by means of a punched-card system. Dansk. Bot. Arkhiv, Bd. 26 (1). Kobenhavn. 45 pp. and 172 cards. — Bot. zhurn. 56 (11): 1705-1707.
1971c Rare trees and shrubs from the collection of the Moscow University Botanic Garden. — Byull. GBS 80: 3-9.
1971d Salix trabzonica — a new species from Asia Minor. — Novosti sist. vyssh. rast. 8: 120-125.
1971e About botanic gardens and ornamental horticulture in Denmark. — Byull. GBS 81: 106-110.
1971f Contribution to the flora of Volgograd Oblast. — Trudy bot. sada MGU 7: 35-68.
1971g* The essence of a taxon and problems of infraspecific plant taxonomy. — Byull. MOIP, Otd. biol. 76 (5): 72-81; 76 (6): 74-83.
1971h Nikolay Petrovich Vinogradov (1908-1968). — Bot. zhurn. 56 (1): 156-159.
1971i Euro-amerikanische verwandtschaftliche Beziehungen zweier mediterraner Salix-Arten. — Feddes Repert. 82 (6): 407-420. In German.
1971j Zur Taxonomie der Weiden von Grönland, Island und den Färöern. — Ann. Naturhist. Mus. Wien 75: 223-233. In German.
1972a Two new willows from Magadan Oblast. — Novosti sist. vyssh. rast. 9: 96-102.
1972b A new variety of needle-leaved willow, Salix acmophylla var. russanovii. — Byull. GBS 83: 41-42.
1972c Three new species of flowering plants in the USSR flora and new species names. — Bot. zhurn. 57 (5): 493-494.
1972d* Book Review: E. Mayr 1969. Principles of systematic zoology. New York: McGraw-Hill. 428 pp. Russian translation 1971. Moscow: Nauka. — Bot. zhurn. 57 (11): 1473-1477.
1972e* Families Salicaceae and Betulaceae. In: Opredelitel rasteniy Srednei Azii [Guide to the plants of the Soviet Central Asia.] Tashkent: FAN UzbSSR. Pp. 6-28.
1972f V. L. Komarov and the problem of the species. — Komarovskiye chteniya 24. (Sto let so dnya rozhdeniya V. L. Komarova.) [The Komarov Readings 24. (On the 100th anniversary of V. L. Komarov's birth.)] Leningrad. Pp. 48-81.
1972g* The genus Salix. In: A. L. Takhtajan and A. A. Fedorov. Flora Erevana: Opredelitel dikorastushchikh rasteniy Araratskoi kotloviny [The Flora of Yerevan: Guide to wild plants of the Ararat Depression.] 2nd ed. Leningrad: Nauka.
1973d Publications concerning the herbaria of Finland. — Bot. zhurn. 58 (4): 611-613.
1973g Herbarium: The foundation of systematic and geographic botany. — Priroda 9: 2-9.
1973h New data on the adventive flora of Moscow Oblast. 1. — Byull. GBS 87: 5-11.
1973i New data on the adventive flora of Moscow Oblast. 2. — Byull. GBS 88: 30-35.
1973j Calystegia inflata in Moscow Oblast. — Byull. GBS 90: 24-27.
1973k Brittle willow: current distribution and probable primary range. In: Problemy biogeotsenologii, geobotaniki i botanicheskoi geografii [Problems in biogeocoenology, geobotany, and botanical geography.] Leningrad: Nauka. Pp. 263-280.
1974a Redundancy of genetic information and evolutionary progress. — Priroda 8: 26-29.
1974b The human being from an evolutionary biologist's standpoint. — Priroda 9: 95-100.
1974c Scanning electron microscopy of Epilobium seed surface. — Bot. Not. 27: 392-401. (Co-author: I. I. Rusanovich.) In English.
1974d Families Salicaceae, Betulaceae, Geraniaceae, Onagraceae, Boraginaceae. In: Opredelitel vysshikh rasteniy Yakutii [Guide to the higher plants of Yakutia.] Novosibirsk: Nauka. Pp. 170-193, 357-362, 369-371, 409-415.
1974e* Infraspecific units in the botanical systematics. — AN SSSR, Uralskiy Nauchnyy Tsentr, Sverdlovsk. Trudy in-ta ekologii rasteniy i zhivotnykh 90: 46-50.
1975b* Book Review: A timely book. Yu. A. Schtürmer 1974. Okhrana prirody i turizm [Environmental protection and tourism.] Moscow: Fizkultura i Sport Publ. 103 pp. — Priroda 9: 121-123.
1976a Natural hybridization of the birches and its impact on plant communities in Yakutia. — Biol. probl. Severa. 7 simpozium, lesovedeniye i lesovodstvo [Biological problems in the North. 7th Symposium: Forestry and Forest Management.] Petrozavodsk. Pp. 186-189.
1976b Salicaceae. In: Flora severo-vostoka yevropeiskoi chasti SSSR [Flora of the USSR European northeast.] 2. Leningrad: Nauka. Pp. 133-152.
1976c The Red Book of our native flora. — Priroda 8: 121-128.
1976d* Book Review: G. N. Gornostayev, N. N. Zabinkova, N. N. Kaden 1974. Latinskiye nazvaniya zhivotnykh i rasteniy. Uchebnoye posobiye [Latin names of animals and plants. A manual.] Moscow: MGU Publ. 147 pp. — Bot. zhurn. 61 (11): 1617-1624.
1976e Male corn flowers: observations relevant to the problem of the primary flower structure in grasses. — Mat-ly 5 Mosk. soveshch. po filogenii rasteniy [5th Meeting on Plant Phylogeny Reports.] Moscow. Pp. 164-166.
1976f Onagraceae. In: Flora severo-vostoka yevropeiskoi chasti SSSR [Flora of the USSR European northeast.] 3. Leningrad: Nauka. Pp. 210-218.
1976g* Salix. — W. Rothmaler. Exkursionsflora für die Gebiete der DDR und BRD. Kritische Band B. Berlin: Volk und Wissen Volkseigener Verl. Pp. 235-246. (With co-authors.) In German.
1977a* Gerbariy. Posobiye po metodike i tekhnike [Herbarium: techniques and procedures. A manual.] USSR Acad. of Sci. Main Botanic Garden. Moscow: Nauka. 198 pp.
1977b On some species of the genus Circaea from East Asia. — Byull. GBS 103: 35-39.
1977c* Book Review: Á. Löve, D. Löve 1975. Cytotaxonomical Atlas of the Arctic Flora. Vaduz: J. Gramer. 598 pp. — Byull. MOIP, Otd. biol. 82 (4): 153-156.
1977d More about morphological nature of the embryo and seedling parts in the grasses. — Byull. MOIP, Otd. biol. 82 (5): 96-111.
1977e* Book Review: D. H. Kent 1975. The historical flora of Middlesex: An account of the wild plants found in the Watsonian vice-county... London: Ray Society Publ. 150. 673 pp. — Bot. zhurn. 62 (5): 750-753.
1977f* Book Review: N. A. Zarenkov 1976. Lektsii po teorii sistematiki [Lectures on the theory of systematics.] Moscow: Moscow Univ. Publ. 140 pp. — Zhurn. obshch. biol. 37 (3): 476-478.
1977g Salix. Betula. In: Arealy derevyev i kustarnikov SSSR [Distribution areas of the USSR trees and shrubs.] 1. Leningrad: Nauka. Pp. 49-76, 89-100.
1978 Two new willows from the Eastern Himalayas. — Byull. MOIP, Otd. biol. 83 (1): 121-124.
1979a Darwinism and nomogenesis. — Priroda 9: 123-126.
1979b A taxonomist's expectations of outcome from chemosystematics. In: Khemosistematika i evoluts. biokhimiya vyssh. rasteniy (tez. dokl.) [Chemosysematics and evolutionary biochemistry of higher plants. Reports.] Moscow. Pp. 74-79.
1979c A few notes on "classic" and "non-classic" biology. — Byull. MOIP, Otd. biol. 84 (1): 106-117.
1979d Taxonomy and distribution of Circaea in the USSR. — Ann. Missouri Bot. Gard. 66 (4): 880-892. In English.
1980a [V. N. Sukachev's study of late-floodplain ecotypes in willows.] — Byull. MOIP, Otd. biol. 85 (3): 89-97.
1980b The Ugra River: nature's pearl in the temperate belt of the European Russia. — Priroda 9: 14-24.
1980c Onagraceae, Pyrolaceae. In: Arkticheskaya flora SSSR [Arctic Flora of the USSR.] 8: 41-54, 95-105.
1980d Die Baumbirken an der südöstlichen Grenze ihrer europäischen Verbreitung. In: 100 Jahre Arboretum Berlin Pp. 151-158. In German.
1980e* Book Review: H. M. Burdet 1979. Auxilium ad botanicorum graphicem [Aid to handwriting of botanists.] Geneva. — Byull. MOIP, Otd. biol. 85 (4): 118-120.
1980f* Book Review: M. S. Mani 1978. Ecology and phytogeography of high-altitude plants of the northwest Himalaya. Introduction to high-altitude botany. London: Chapman and Hall. 205 pp. — Novyye knigi za rubezhom [New Books Abroad.] Ser. B (4): 23-27.
1981a Salicaceae, Pyrolaceae, Monotropaceae. In: Flora yevropeiskoi chasti SSSR [Flora of the USSR European Part.] Vol. 5. Pp. 10-36, 52-58.
1981b* Order Salicales. In: A. L. Takhtajan (ed.) Zhizn rasteniy [Plant Life.] Moscow: Prosveshcheniye. Vol. 5(2). Pp. 81-86.
1981c Chemosystematics and major notions of systematics. In: Biokhimicheskiye aspekty filogenii vysshikh rasteniy [Biochemical aspects of phylogeny in higher plants.] Moscow: Nauka. Pp. 12-27.
1981e* Book Review: E. Strasburger, P. Sitte, H. Ziegler, F. Ehrendorfer 1971. Strasburgers Lehrbuch der Botanik für Hochschulen. Gustav Fisher VEB. — Biol. nauki 7: 109-112.
1982a Mikroevolyutsiya i puti vidoobrazovaniya [Microevolution and ways of speciation.] Novoye v zhizni, nauke i tekhnike [News: Life, Science, and Technology.] Ser. Biologiya 9. Moscow: Znaniye. 64 pp.
1982b Darwinism yesterday and today (to the 100th anniversary of Darwin's death.) — Priroda 6: 68.
1982c New data on the adventive flora of Moscow Oblast. III. — Byull. GBS 124: 43-48.
1982d Two ways of chromosome number reduction in the higher plants evolution. In: Mat. VI Mosc. soveshch. po filog. rast. [VI Conference on plant phylogeny in Moscow. Reports.] Moscow: Nauka. Pp. 119-124.
1982e The problem of taxa objectivity and measurement of taxonomic distances. In: Khemosistematika i evoluts. biokhimiya vyssh. rasteniy [Chemosysematics and evolutionary biochemistry of higher plants.] Moscow: Izd-vo Sovet. Bot. Sadov. Pp. 31-37.
1982f* Book Review: Rational and irrational in the search for truth. E. L. Feinberg 1981. Kibernetika, logika, iskusstvo [Cybernetics, logics, art.] Moscow: Radio i svyaz Publ. — Priroda 3: 123-126.
1982g Calciphilous flora of the southern Pogarsk District, Bryansk Oblast. — Byull. MOIP, Otd. biol. 87 (5): 77-83.
1983a B. A. Kuzin and A. A. Lyubishchev exchange thoughts on the systematics. A long-ago discussion and today's views. — Priroda 6: 74-77.
1983b Infraspecific variability and plant introduction. In: Tez. Vsesoyuz. konf. po teoret. osnovam introduktsii [All-Union Conference on Theoretical Grounds for Introduction. Reports.] Moscow: GBS. Pp. 14-15.
1983c Prospects and tasks in the study and cultivation of rare species of the native USSR flora. In: Redkiye i ischezayushchiye vidy flory SSSR, ikh kult. v bot. sadakh. [Rare and endangered species of the USSR flora and their cultivation in botanic gardens.] Moscow: Nauka. Pp. 15-21.
1984a Progress in the study of the flora: western oblast's of the central non-chernozem Russian Federation (Bryansk, Kaluga, Smolensk.) In: Sostoyaniye i perspektivy issledovaniya flory srednei polosy yevropeiskoi chasti SSSR [Current state and prospects of floristic studies in the temperate European part of the USSR.] Moscow: MOIP Publ. Pp. 10-14.
1985a On the term introducent [as the object of introduction.] — Rast. resursy 21 (3): 362-364.
1985b* Book Review: History and aesthetics of Russian gardens. D. S. Likhachev 1982. Poeziya sadov [Poetry of gardens.] Leningrad: Nauka. 343 pp. — Priroda 2: 119-122.
1985c* Book Review: Turova A. D., Sapozhnikov E. N. 1974. Lekarstvennyye rasteniya SSSR i ikh primeneniye [Medicinal plants of the USSR and their usage.] Moscow: Meditsina. 424 pp. — Rast. resursy 21 (3): 388-395.
1986c Darwinism and molecular neutralizm. In: Khemosistematika i evoluts. biokhimiya vyssh. rasteniy [Chemosysematics and evolutionary biochemistry of higher plants.] Moscow: GBS Publ. Pp. 114-120.
1986d Logics and analogies in the evolutionary theory. In: Sovremennyye problemy filogenii rasteniy [Contemporary problems of plant philogeny.] Moscow: MOIP Publ. Pp. 13-20.
1986e About the dark-barked birches from the Subsection Albae. — Ukr. Bot. Zhurn. 43 (3): 83-88. In Ukranian.
1986f The forest-steppe flora of Bryansk Oblast. In: Izucheniye i okhrana prirody malykh zapovednykh territoriy [Study and conservation of small nature preserves.] Voronezh: Voronezh Univ. Publ. Pp. 67-71.
1986h Infraspecific variability and new approaches to plant introduction. — Byull. GBS 142: 7-12.
1987b The willow. Salix. In: Opredelitel rasteniy Ukrainy [Guide to the plants of Ukraine.] Kiev: Naukova Dumka. Pp. 130-133.
1987c Blue honeysuckles (Lonicera Subsect. Caeruleae) of Eurasia: distribution, taxonomy, chromosome numbers, domestication. — Acta Univ. Uppsala Symb. Bot. 27 (2): 165-217. In English.
1987d Floristic studies in the central non-chernozem region's western part (Bryansk, Kaluga, and Smolensk oblast's.) In: Teoretich. i metodich. probl. sravnitelnoi floristiki [Theoretic and methodic problems in comparative floristics. (Coll. of articles.)] Leningrad: Nauka. Pp. 203-209.
1988d The Red Book of the USSR and rare plant species conservation. — Bot. zhurn. 73 (2): 282-288.
1988e Logics and analogies in the evolutionary theory. — Priroda 1: 16-25; 3: 74-84.
1989a Families Geraniaceae, Onagraceae. In: Opredelitel rasteniy Bashkirskoy ASSR [Guide to the plants of Bashkir Autonomous Republik.] Vol. 2. Pp. 115-119, 144-148.
1989e Die Weiden der Sektion Chamaetia und das Problem der Entstehung der arktischen Flora. — Flora 182 (1): 57-67. In German.
1990a Comment on publication of the letter exchange between A. A. Lyubishchev and S. V. Meyen. — Priroda 4: 89-90.
1991a Rare species in situ and ex situ conservation: coordination and problems related to the the two strategies. — Byull. GBS 162: 3-6.
1991b On morphological nature of the epiblast and glumes in the grasses. In: Sistematika i evolyutsiya zlakov [Systematics and evolution of the grasses.] Krasnodar: Krasnodar Univ. Publ. Pp. 119-122.
1991d The Evening-Primrose Family (Onagraceae). In: Sosudistyye rasteniya sovetskogo Dalnego Vostoka [Vascular Plants of the Soviet Far East.] Vol. 5. Sankt-Peterburg: Nauka. Pp. 187-205.
1992a Mechanisms of the organic evolution and cognitive mechanisms. — Priroda 7: 3-10.
1992b Trips to the United States: the sixth (1981) and twelvth (1989). In: Opyt introduktsii i okhrany rasteniy v SSSR i v SShA [Plant introduction and conservation practice in the USSR and USA.] Moscow: Nauka. Pp. 7-18, 51-58.
1994a The genus Oenothera on the territory of the former USSR: systematics and distribution. — Byull. MOIP, Otd. biol. 99 (4): 93-113.
1995b Long-flowered evening primrose (Oenothera longissima) in nature and cultivation. — Byull. GBS 171: 78-80.
1995c To the systematics and nomenclature of adventive Epilobium species in the flora of Russia. — Byull. MOIP, Otd. biol. 100 (1): 78-80.
1995d Contribution to the flora of Saratov Oblast. — Byull. MOIP, Otd. biol. 100 (4): 81-94.
1996b Plant introduction and botanic gardens: contemplations about the past, present, and future. — Byull. GBS 173: 2-16.
1996c Diversity of living world on the Earth and the problem of its conservation. — Priroda 6: 95-105.
1996d* Family Onagraceae. In: Tsvelev N. N. (ed.) Flora Europaea orientalis. Sankt-Peterburg: Mir i Sem'ya-95. Vol. 9. Pp. 299-316.
1997a Notes to the flora of the Lower Volga Basin. — Byull. MOIP, Otd. biol. 102 (1): 58-64.
1997b Taxonomic notes on Betula. I. Sect. Betulaster. — Harvard Papers in Botany 2 (1): 65-70. In English.
1997c* Book Review: Our national parks. Chebakova I.V. (ed.) 1996. Natsionalnyye parki Rossii. Spravochnik. [National parks of Russia. A reference book.] Moscow: TsODP. 198 pp. — Priroda 6: 114-116.
1997d* Book Review: Encyclopedia of biological diversity problems. V. H. Heywood, R. T. Watson (eds.) 1995. Global Biodiversity Assessment. Cambridge (UK): Cambridge Univ. Press. — Priroda 2: 125-126.
1998a A new species of Salix from Hainan, China. — Harvard Papers in Botany 3 (1): 107-108. In English.
1998b Taxonomic notes on Betula. II. Two Chinese birches described by A. Franchet in 1899 and misunderstood by subsequent authors. — Harvard Papers in Botany 3 (1): 109-112. In English.
1998c On some general aspects of introduction. In: Problemy introduktsii i otdalennoy gibridizatsii [Problems of plant introduction and distant hybridization. (Reports Internat. Conf. Dedicated to 100th Annivers. of N. V. Tsitsin's birth.)] Moscow: GBS Publ. Pp. 188-190.
1998d Contribution to the flora of Smolensk Oblast. — Byull. MOIP. Otd. biol. 103 (2): 44-52.
1999a Willows of Russia and adjacent countries. (English translation of Ivy SSSR, 1968, with additions.) Joensuu (Finland): Joensuu Univ. Press. 307 pp.
1999b Two new species of Salix from East Asia. — Harvard Papers in Botany 4 (1): 323-325. In English.
1999c Contribution to the systematics of the sections Foliosae and Fibrillosae of the genus Scorzonera. — Byull. GBS 177: 36-39.
1999d* Book Review: Science, religion, and ecology. Shlenov V. L., Petrushina L. G. (eds.) 1997. Pravoslaviye i ekologiya. [Russian Orthodox Faith and Ecology.] Moscow: Moskovskiy Patriarkhat. 448 pp. — Priroda 10: 119-124.
2001a Increase of diversity as a fundamental attribute of life and a measure of evolutionary progress. — Byull. MOIP, Otd. biol. 106 (1): 4-7.
2001b The notion of species in nowadays systematics. In: Evolyutsionnaya biologiya [Evolutionary biology.] Tomsk: Tomsk Univ. Publ. Vol. 1. Pp. 122-127.
2002a Hybridization in the blue honeysuckles group. — Byull. GBS 183: 114-117.
2002b Systematics on the threshold of the 21st century: traditional principles and basics from today's point of view. — Zhurn. obshch. biol. 63 (1): 82-93.
2002c A new system of the genus Betula. — Byull. MOIP, Otd. biol. 107 (5): 73-76.
2002d About the language of contemporary Russian scientific literature. — Priroda 5: 3-13.
2002g Some logico-semantic preliminaries to a theory of systematics. — Byull. MOIP, Otd. biol. 107 (1): 32-39. In English.
2003a Prophylls in grasses: three storeys of homology. — Byull. MOIP, Otd. biol. 108 (1): 32-37. In English.
2003b Once again, on the prophylls in Commelinaceae. — Bot. zhurn. 88 (7): 41-45.
2003c The genus Epilobium in the Caucasus. — Byull. GBS 185: 49-62.
2004a On a certain forgotten dog-rose species. [About one forgotten species of brier (Rosa).] — Byull. GBS 187: 19-23.
2004b The genus Epilobium (willow-herb) in Middle Asia and Kazakhstan. — Byull. GBS 188: 61-70.
2004c American chestnut (Castanea dentata [Marsh.] Borkh.) in the area of Moscow. — Byull. GBS 188: 10-12.
2005b [Contribution to the flora of Kaluga Oblast.] — Byull. MOIP, Otd. biol. 110: 73-80.
2005d Synopsis of the genus Epilobium L. s. str. in Russia and adjacent countries. — Byull. GBS 189: 90-104.
In print Labels and notes to species of Salix, Epilobium, Chamaenerion. In: Gerbariy russkoi flory. (Coll. of exsiccatae.) Sankt-Peterburg: BIN RAN.

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