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Owners of software patents took a blow last June with the U.S. Supreme Court’s decision in Alice Corp v. CLS Bank International. The Alice Court held that, to be eligible for patent protection, computer-driven innovations must include “an inventive concept” beyond computer implementation of an abstract idea.
The decision in Alice also holds particular significance for those that have—or want—big data patents. After Alice, the patentability of many big data inventions may now be in question. As a consequence, big data innovators must understand the issues Alice creates if they want a patent that survives its scrutiny. And some big data innovators may find that they can best protect proprietary technologies and systems by remaining open to alternatives outside of patent law when Alice’s requirements prove too difficult to meet.
The term “big data” already has multiple meanings. Sometimes, the term gets used to refer to the kind of huge data sets that are now constantly under creation. Other times, the term describes the real-time, data-based analytics, data management, or data mining functions current parallel processing capabilities power.
Despite these different usages, big data’s true importance comes from the exciting new business solutions it enables. Big data lets organizations extract a whole new level of data-driven insights, value, and actionable strategies. That extraction, however, relies heavily on software and proprietary algorithms along every “V” in the big data formula of volume, velocity, and variety.
After Alice, big data must ask whether the decision will allow those who create these solutions to gain patent protection for their innovations.
In Alice v. CLS, the existential question of the software’s eligibility for patenting seemed at stake. In Alice, the plaintiff-patent holder sought to enforce a patent covering a computer-implemented process that lessens settlement risk for financial instrument trades. The Supreme Court granted certiorari in the case after a deeply divided en banc Federal Circuit issued a seven-opinion per curiam decision rejecting the patent holder’s claims.
The Supreme Court’s decision did not go so far as to decide the ultimate question of software patentability. It did, however, unanimously reject the validity of the patent claims at issue. In its decision, the Court turned to the framework for assessing the patentability of potentially abstract ideas it has established in recent decisions outside of software. As in those cases, the Alice decision highlights the concerns the Court has about letting a patent preempt nature, natural phenomena, and abstract ideas.
The Court also turned to the call for an “inventive concept” as laid out in Mayo Collaborative Services v. Prometheus Laboratories, Inc.  Under this analysis, the Court found the claimed invention lacked the necessary inventive concept needed to bestow patentability. It further concluded that the claims involved the abstract idea of intermediated settlement. In this case, the use of a computer in a “particular technological environment” was not enough to transform an otherwise unpatentable abstract idea into something patentable.
Big data patent battles is one potential place that such dusting off will occur. If so, software patent holders and seekers alike must become aware of the protection options available in the wake of Alice.
As of now, software appears to remain patentable after Alice. But just what type of software remains patent-eligible is a question that will likely become the subject of significant future litigation.
Certainly, some classes of software now look unlikely for patent protection. This is especially true for those that do nothing more than use a computer to handle pre-existing general business processes. But complex solutions that analyze, manipulate, or store big data may be less vulnerable to the attack that cost Alice its patent. And at the very least, courts will again face the question of what is and is not an algorithm.
It is clear that big data patent holders will face challenges if their rights primarily rely on computer execution of nothing more than routine algorithms. What, then, will be enough to make big data patentable? And what should holders do if patenting is not a reliable option?
One source of guidance on the patentability of big data comes from Diamond v. Diehr. This is another case that the Alice Court cited with approval.
Diehr involved a computer-implemented process for curing rubber. The purpose of the invention was to provide precise, real-time recalculations of the remaining cure time. The patented process achieved this by using a well-known mathematical equation in combination with a recording device constantly measured temperatures inside a rubber mold. According to the Court in Alice, the invention in Diehr was patentable because it "transformed the process into an inventive application of the formula.
One way of doing this is to argue just how much the software actively “does something.” The good news for big data patent holders is that big data is complex. Processing, analyzing, manipulating, and storing big data is not a simple matter. It involves complex methods and systems for quickly analyzing and storing mass quantities of structured, semi-structured, and unstructured data. So patent seekers or holders will only need to capture this complexity to survive judicial review under Alice.
Unfortunately, that very complexity will make big data patent disputes expert-intense and expensive. Parties will have to continue to battle out patentable subject matter issues. They will also have to address other patent validity standards, such as defining what constitutes ordinary skill of art when it comes to big data. One way to avoid such expense is to consider going an alternate route.
Whether the benefits of this approach outweigh its drawbacks will depend on the specifics of the software involved. It will also heavily hinge on the IP owner’s appetite for risk.
To increase the odds of surviving a Section 101 patentability challenge, big data software patent holders will need to follow the groundwork laid out in Alice. Patent seekers or holders who are not sure their systems will stand up to the scrutiny may choose trade secret protection instead. In either case, all IP owners should continue to watch legal developments that rely on Alice. This is not the end of this discussion, but instead the beginning of a potentially drawn-out process to fully determine the patentability of big data software.
Alice Corp v CLS Bank Intl, No 13–298, 2014 WL 2765283 (US 19 June 2014).
Data volume continues to increase at an unprecedented speed. This requires continual innovation into scalable data storage options. Data variety covers the multiple types of data and data source, including structured data that resides in a fixed field within a record or file and unstructured data from sources like videos, social media, and RSS.
The Court established this framework in cases such as Association for Molecular Pathology v. Myriad Genetics, Inc.; 569 U. S. ___, ___ (2013) and Bilski v. Kappos, 561 U. S. 593 (2010).
First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before us?” To answer that question, we consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent-eligible application. We have described step two of this analysis as a search for an “‘inventive concept’”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice Corp v CLS Bank Intl, supra, citing, Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ___ (2012) (internal citations omitted).
Gottschalk v. Benson, 409 U.S. 63, 71-72 (1972).
For example, patent claims that recite well known data processing algorithms, including linear algebra and basic statistic methods, are vulnerable to attack under an Alice-approved reading of Benson.
Diamond v. Diehr, 450 U. S. 175, 187 (1981).
Alice Corp v CLS Bank Intl, supra.
Emily Michiko Morris, Alice, Artifice and Action—and Ultramercial, Patently-O (July 8, 2014 ) http://patentlyo.com/patent/2014/07/artifice-action-ultramercial.html; See also Emily Michiko Morris, What is Technology? V. 20.1 B.U. J. Sci. & Tech. L. (Winter 2014).
For example, big data systems are often more complex than converting binary coded decimals in to binary numbers—as was the case in Benson.
Note that trade secret laws differ from state to state on this issue.

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Except as provided in subsections (b) and (c), this subchapter does not annul, alter, affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, or for the prevention or mitigation of identity theft, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency.
section 1681w of this title.
Notwithstanding any definition of the term “firm offer of credit or insurance” (or any equivalent term) under the laws of any State, the definition of that term contained in section 1681a(l) of this title shall be construed to apply in the enforcement and interpretation of the laws of any State governing consumer reports.
Subsections (b) and (c) do not affect any settlement, agreement, or consent judgment between any State Attorney General and any consumer reporting agency in effect on September 30, 1996.
A prior section 625 of Pub. L. 90–321 was renumbered section 626 and is classified to section 1681u of this title.
2018—Subsec. (b)(1)(J). Pub. L. 115–174, § 301(b), added subpar. (J).
Subsec. (b)(1)(K). Pub. L. 115–174, § 302(d)(2), added subpar. (K).
2003—Subsec. (a). Pub. L. 108–159, § 711(1), inserted “or for the prevention or mitigation of identity theft,” after “information on consumers,”.
Subsec. (b)(1)(E). Pub. L. 108–159, § 214(c)(2)(A), struck out “or” after semicolon at end.
Subsec. (b)(1)(G). Pub. L. 108–159, § 151(a)(2), added subpar. (G).
Subsec. (b)(1)(H). Pub. L. 108–159, § 214(c)(2)(B), added subpar. (H).
Subsec. (b)(1)(I). Pub. L. 108–159, § 311(b), added subpar. (I).
Subsec. (b)(5). Pub. L. 108–159, § 711(2), added par. (5).
1996—Subsec. (a). Pub. L. 104–208, § 2419(1), designated existing provisions as subsec. (a), inserted heading, and substituted “Except as provided in subsections (b) and (c), this subchapter” for “This subchapter”.
Subsecs. (b) to (d). Pub. L. 104–208, § 2419(2), added subsecs. (b) to (d).
Amendment by section 301(b) of Pub. L. 115–174 effective 120 days after May 24, 2018, see section 301(c) of Pub. L. 115–174, set out as a note under section 1681c–1 of this title.
Amendment by section 302(d)(2) of Pub. L. 115–174 effective 1 year after May 24, 2018, see section 302(e) of Pub. L. 115–174, set out as a note under section 1681a of this title.
  So in original. See Amendment of Subsection (b)(1) note below.


UNITED STATES of America, Appellee, v. Robert Hugh BRADY, Defendant, Appellant.
Before BOUDIN, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge. Leo T. Sorokin,Federal Defender Office, for appellant. Ben T. Clements, Assistant U.S. Attorney, with whom Donald K. Stern, United States Attorney, was on brief for the United States.
Because this appeal involves sentencing issues following a guilty plea, we take the background facts from the presentence report that followed Robert Brady's conviction for criminal contempt. See United States v. Gill, 99 F.3d 484, 485 (1st Cir.1996). According to the presentence report, Brady and two close friends traveled in late July 1996 to Boston's North End from nearby Charlestown. The two friends, Brendan Brennan and Paul Hansen, then stole a minivan; at about the same time, Brady stole a Pontiac Bonneville parked several blocks away from the minivan.
Brennan and Hansen had previously agreed to steal a vehicle for use by other Charlestown men in a planned robbery of an armored car (Brady's involvement vel non is a separate matter discussed below). On July 31, 1996, three masked men used the stolen van to rob an armored car in a shopping plaza in Somerville, Massachusetts. In the course of the robbery, one of the robbers deliberately shot and killed one of the guards. Federal authorities began an investigation.
In the fall of 1996, Brady was photographed and fingerprinted as part of the FBI's investigation of the robbery; in connection with this investigation, Brady made statements more or less admitting that he had stolen the Bonneville. In March 1997, Brady was summoned before the federal grand jury investigating the robbery, and he took the Fifth Amendment; subsequently, Brady was made the subject of an immunity order compelling him to testify and providing that information he gave could not be used against him. See 18 U.S.C. § 6002.
When Brady refused to testify despite the immunity order, U.S. District Judge Saris held him in civil contempt and jailed him until October 24, 1997, when the grand jury expired without returning indictments against the robbers. At various times, the government offered Brady protection against reprisal, but he still declined to testify. Brady never suggested that he was concerned about reprisals and affirmatively rejected the suggestion on one occasion; he did say at least once that he intended not to “rat” on anyone. On September 17, 1997, Brady was indicted for criminal contempt for refusing to testify. See 18 U.S.C. § 401(3).
On January 30, 1998, Brady pled guilty to criminal contempt before U.S. District Judge Young. On two different occasions, both before and after the plea, Brady expressed a willingness to testify if different conditions were met; one condition (that no prior interview or proffer be required) was agreed to, but the other (a promise that Brady would not be prosecuted for perjury if he lied) was naturally rejected. After postponing sentencing to allow further negotiations, Judge Young held a final sentencing hearing on April 21, 1998.
As we shall explain in more detail, the sentencing guidelines provide that for criminal contempt, the court should adopt the guideline for the most analogous criminal conduct. The presentence report, which Judge Young adopted, recommended that Brady be sentenced under the sentencing guideline that applies to obstruction of justice, U.S.S.G. § 2J1.2. The obstruction guideline provides that where the obstruction interferes with a criminal investigation, the offense level to be adopted is taken from the guideline for the offense of accessory after the fact. See id. § 2J1.2(c)(1).
In the course of sentencing, Judge Young found that Brady had been “involved” with Brennan and Hansen, that he knew of their plans, and that Brady's theft of the Bonneville was “in some way” related to the robbery. Accordingly, he employed the offense level set forth in the accessory-after-the-fact guideline, U.S.S.G. § 2X3.1, which increases the offense level (up to a maximum of 30) based on the underlying criminal conduct-here, a robbery and murder. After an adjustment for acceptance of responsibility, Brady's offense level was found to be 27. The district court sentenced Brady to the maximum amount permitted by the guidelines-87 months-and Brady now appeals.
On this appeal, Brady quarrels with the district court's choice of guidelines, with its legal analysis, and with its findings. In response, the government invokes our own recent decision in United States v. Marquardo, 149 F.3d 36 (1st Cir.1998), upholding use of the obstruction guideline in somewhat similar circumstances. This case presents several issues that recur in obstruction-related matters against a backdrop of confusing case law; whether we can do much to clarify the case law remains to be seen.
Under the guidelines, the offense of criminal contempt embraces misconduct so varied in type and context that “the Commission has not provided a specific guideline for this offense.” U.S.S.G. § 2J1.1 app. note (1). Instead, the Commission in section 2J1.1 directs the court by cross reference to “apply the most analogous offense guideline,” U.S.S.G. § 2X5.1 (Other Offenses), while noting in section 2J1.1 app. note (1) that in some cases the best analogy may be to U.S.S.G. § 2J1.2, the obstruction of justice guideline. See United States v. Ryan, 964 F.Supp. 526, 528 (D.Mass.1997).
Brady argues that the choice of analogies is a question of law, subject to de novo review. See United States v. Hornsby, 88 F.3d 336, 338 (5th Cir.1996). Marquardo, by contrast, said that the district court enjoyed some latitude in its choice, especially where factual issues were involved. See 149 F.3d at 45. The truth is that the choice of an analogy can involve different kinds of questions: abstract legal questions reviewed de novo, raw issues of fact reviewed under the clearly erroneous standard, and issues of law application (applying abstract standards to particular facts) where deference is common but not invariable. See Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181 (1st Cir.1997); see also United States v. Cefalu, 85 F.3d 964, 966 (2d Cir.1996).
Where the contempt is a refusal to testify before a grand jury, courts have resorted to several different guidelines as analogies, including the obstruction guideline, the misprision guideline, and the guideline governing the refusal of a material witness to appear. See Ryan, 964 F.Supp. at 528-30. No one of these is the “right” answer as a matter of law for all cases of refusal to testify; rather, the choice of the best analogy is likely to depend in part on the circumstances. See Cefalu, 85 F.3d at 966-68 & n. 6. Once the circumstances are determined, the district court's choice of an analogy should be upheld if it is reasonable. See Marquardo, 149 F.3d at 45; Cefalu, 85 F.3d at 968.
“Reasonableness” in this context means that the defendant's conduct (including state of mind) is closely similar to conduct that would constitute the crime set forth in the more specific guideline selected as the analogy. Similarity, not identity, is what is required for an analogy, and similarity does involve judgment. Thus, some latitude for the district court on this judgment call seems appropriate, but it is not unlimited. Either side may still argue on appeal that the similarity is far too slight or that there is manifestly a better analogy.
Here, the district court chose as the analogy the “obstruction of justice” guideline. Our presumption is that the Commission intended the quoted phrase to have the same meaning as the crime defined in 18 U.S.C. § 1503, which is cross-referenced by the guideline, U.S.S.G. § 2J1.2, comment. (statutory provisions), and we see nothing to rebut the presumption. The elements of the obstruction offense-purely an issue of law-are defined by the statute and interpretive case law.
Whoever ․ corruptly ․ influences, obstructs, or impedes, or endeavors to influence, obstruct or impede, the due administration of justice shall be punished as provided in [18 U.S.C. § 1503(b) ].
It is settled by case law that “the due administration of justice” includes the operation of the grand jury, and that depriving the grand jury of information may constitute obstruction under the statute. See, e.g., United States v. Banks, 942 F.2d 1576, 1578 (11th Cir.1991); United States v. Cintolo, 818 F.2d 980, 990 (1st Cir.1987). Here, we think it was a fair inference that Brady possessed some information that could assist the grand jury; this is suggested by his association on the night of the minivan robbery with two friends who stole the van used in the robbery and by Brady's refusal to testify, which (given the immunity order and absent a showing of actual fear) suggests that he knew something useful. In all events the district court thought that Brady had useful information and, as we will see, this view is not clearly erroneous.
The robbery grand jury may well have been obstructed given that it was initially unable to indict, but actual obstruction is not needed if the defendant “endeavors” to obstruct. 18 U.S.C. § 1503(a). “Endeavors” suggests both a purpose to obstruct and some step in that direction. United States v. Tedesco, 635 F.2d 902, 906-07 (1st Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 974 (1981). However, neither obstruction nor an endeavor to obstruct normally violates the statute unless there is a “corrupt” purpose,1 and this brings us to the single most difficult legal issue in the case.
The scienter element in the obstruction statute is the subject of more confusing case law than can be described in brief compass. In part, this results from the promiscuous use in the cases of the ambiguous word “intent,” which can mean either knowledge (of consequences) or purpose (to achieve them), see Model Penal Code § 2.02 & explanatory note (Official Draft 1962); in part, it results from the great range of varying motives that can underlie a refusal to testify (e.g., loyalty of various kinds, concern as to reputation, fear of reprisal, concern about self-incrimination). Further, cases that purport to be setting legal standards are often instead concerned with the inferences to be drawn from particular facts.
As used in [18 U.S.C.] section 1505 [a sister provision to section 1503], the term “corruptly” means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering or destroying a document or other information.
More important, the government's reading of the obstruction statute would not only make the “corruptly” requirement meaningless, but it would make an obstruction of justice out of refusals to speak that no one could have intended to punish. For example, every lawyer who advises a client to invoke the Fifth Amendment before the grand jury on a material issue, and almost every client who takes this advice, must “know” that this will often obstruct the grand jury, yet only a corrupt purpose creates guilt. See Cintolo, 818 F.2d at 990-94. In short, to make any sense out of the statute, “corruptly” needs to have some content beyond mere knowledge of consequence.
There is no hope in one opinion of providing a definitive gloss on the word “corruptly”; neither would it be wise to try. However, we think it is ordinarily sufficient to satisfy the “corruptly” requirement in the statute-without regard to other circumstances that might also establish corruption (e.g., offering a bribe)-if the contemnor's purpose for refusing to testify is to prevent the grand jury from locating the criminals. This is broadly consistent with a standard instruction for the obstruction statute,3 captures most of the malign cases, and will need qualification only in the rare cases where such a purpose may be privileged by law or otherwise.
I find by a fair preponderance of the evidence ․ that Mr Brady was involved with the other two, that ․ he in fact has knowledge of their plans, and that the stealing of the Bonneville was in some way related to the general plan for which the minivan, the minivan [sic] was stolen. I find that for sentencing purposes that his obdurate refusal to testify is part and parcel of his involvement with these individuals, and that the accessory after the fact guideline is appropriate.
Given deliberate obstruction of justice, it then follows that the severe offense level prescribed in the accessory after the fact guideline must be used where-as here-the offense involved “obstructing the investigation or prosecution of a criminal offense.” U.S.S.G. § 2J1.2(c)(1).
The much closer issue is whether the evidence permitted the district court to find that Brady was part of the robbery plot or at least was involved in a phase of it. The burden of proof was upon the government to bring the case within the obstruction guideline. See Ryan, 964 F.Supp. at 531. On the other hand, the district court was not limited to evidence that would be admissible in court or that established facts “beyond a reasonable doubt.” See United States v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir.1994). And, further complicating Brady's appeal, the district court's raw findings of fact must stand unless they are “clearly erroneous.” See id. at 24.
(12) On an evening in late July of 1996, Robert Brady and two of his closets [sic] friends, Brendan Brennan and Paul James Hansen, went from their home neighborhood in the Charlestown section of Boston to the North End neighborhood of Boston for the purpose of stealing cars. At least one of these stolen cars was to be used in connection with a planned robbery of an armored car. Brady proceeded to steal a Pontiac Bonneville. Brennan and Hansen stole a minivan, which they had previously agreed to provide to other Charlestown men to be used in executing the armed robbery of an armored car.
(13) On July 31, 1996, the minivan stolen by Brennan and Hansen was in fact used by three masked men to rob a Dunbar armored car at the Twin City Plaza in Somerville, MA. During the course of this robbery, one of the robbers intentionally shot and killed, at point blank range, one of the armored car guards, Edward Kubera. Following the robbery and murder, the robbers made their escape in the stolen minivan.
(15) When Brady later appeared at the FBI to provide prints, he made reference to the incident under investigation, stating, I've always been “partial to the Bonneville,” or words to that effect.
Different inferences are possible, but one that easily fits the facts is that Brady and his two friends went to steal two different vehicles for the proposed robbery-the minivan to be used in carrying out the robbery itself and the Bonneville as a temporary getaway car or for some similar purpose. This is suggested by the fact that Brady was friends with the other two, that they apparently traveled together to the same area in the North End for the thefts,4 and that Brady had some kind of further knowledge that made him reluctant to testify to the grand jury.
Of course, it is possible that Brady and his two companions were on different missions and wholly ignorant of each other's plans. The line between a permissible inference and impermissible speculation is one of the hardest in the law to articulate since it is largely a matter of degree; much depends on how the factfinder conceives of likelihoods based on his or her real world experience and assumptions. Cf. Stewart v. Coalter, 48 F.3d 610, 616 (1st Cir.), cert. denied, 516 U.S. 853, 116 S.Ct. 153, 133 L.Ed.2d 97 (1995). About all we can say is that the district court does not seem to us “clearly erroneous” in finding it more likely than not that Brady was involved in the plot and that his refusal to testify was “part and parcel” of that involvement.
On appeal, the defense points to two other possible motives for Brady's refusal to testify, arguing that either is plausible and neither is corrupt. The first is that Brady was simply afraid of retaliation if he testified. If this had been Brady's controlling motive, we doubt very much whether we would regard it as corrupt, see United States v. Underwood, 880 F.2d 612, 620 (1st Cir.1989), but the point need not be definitively decided. Although Brady's counsel has done his best with a few scraps, the evidence of fear as the motive is so slight-Brady himself denied it-that we do not even think the matter worth discussing further.
Alternatively, Brady's counsel argues that his motive was merely a desire not to “rat” (an argument tending to bear out the suspicion that Brady did have something to rat about). Whether such a desire, if it stood as the only motive, would be “corrupt” is a very tricky question-perhaps not one entirely divorced from circumstances; a parent's refusal to testify against a child could easily be a punishable contempt (absent a privilege) but would be less easily described as “corruptly” motivated. In all events, the district court's findings essentially refute the notion that a desire to avoid ratting was Brady's predominant motive.
The district court findings that Brady was friends with the minivan thieves and somehow involved in the plot make it highly likely, and certainly more likely than not, that his refusal to testify was significantly motivated by a desire to frustrate the investigation of the robbery and thereby protect his friends. Cf. United States v. Tedesco, 635 F.2d 902, 907 (1st Cir.1980). Obviously the two motives-to obstruct and not to be a rat-will often go together; probably, they did so here. But a significant purpose to obstruct is enough, even if we assume dubitante that a pure desire not to rat would avoid the obstruction charge. Compare United States v. Ortiz, 84 F.3d 977, 981 (7th Cir.), cert. denied, 519 U.S. 900, 117 S.Ct. 250, 136 L.Ed.2d 177 (1996).
We have now come full circle. The findings of the district court are either findings of obstruction of justice by Brady or so close as to confirm that the analogy to the obstruction guideline is entirely apt. On different findings, the analogy could be weaker, might even fail, and could require resort to some other guideline. Without endorsing the topology offered in the opinion, we agree completely with Ryan that-even where the conduct is (as here) narrowed to a contemptuous refusal to testify to a grand jury-the choice of the best analogy depends upon the circumstances. See Ryan, 964 F.Supp. at 528-30.
The contempt penalty in this case is a severe one-87 months for a then 19-year-old youth with an otherwise clean record and a good many touching letters in his favor. Yet the high maximum set by the guidelines is because the robbery resulted in a murder, and Brady, through his refusal to testify, sought to obstruct this investigation. So long as his withheld evidence remains useful, he has it within his power to obtain a reduction in his sentence under the “substantial assistance” provisions, Fed.R.Crim.P. 35(b); U.S.S.G. § 5K1.1-a hard choice for Brady but one he has constructed for himself.
1. A corrupt purpose is not independently required if the obstruction is by “threats or force, or by any threatening letter or communication,” 18 U.S.C. § 1503(a), but there is no claim in this case that Brady used force or threats or endeavored to do so.
2. As explained on the floor of Congress, the provision was to make clear that lying or otherwise obstructing Congress was covered by section 1505, and to counter any suggestion of undue vagueness made in United States v. Poindexter, 951 F.2d 369 (D.C.Cir.1991). See 142 Cong. Rec. § 11605-02, § 11607-608 (1996).
4. The government's lawyer referred to the location of the two vehicles twice, once in an objection to the original presentence report apparently then accepted by the probation officer and once in the court hearing. Although strictly speaking this is not a finding of the presentence report, it is pretty close to a proffer by the government, and Brady never suggested that it was not true.


D.C. Law Library - § 29–804.09. Standards of conduct for members and managers.
↪ § 29–804.09. Standards of conduct for members and managers.
§ 29–804.10. Right of members, managers, and dissociated members to information.
(a) A member of a member-managed limited liability company owes to the company and, subject to § 29-808.01(b), the other members the duties of loyalty and care stated in subsections (b) and (c) of this section.
(3) Refrain from competing with the company in the conduct of the company’s activities and affairs before the dissolution of the company.
(c) The duty of care of a member of a member-managed limited liability company in the conduct or winding up of the company’s activities and affairs requires the member to refrain from engaging in grossly negligent or reckless conduct, willful or intentional misconduct, or a knowing violation of law.
(d) A member in a member-managed limited liability company or a manager-managed limited liability company shall discharge the duties and obligations under this chapter or under the operating agreement and exercise any rights consistently with the contractual obligation of good faith and fair dealing.
(e) It shall be a defense to a claim under subsection (b)(2) of this section and any comparable claim in equity or at common law that the transaction was fair to the limited liability company.
(f) All of the members of a member-managed limited liability company or a manager-managed limited liability company may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty.
(g) A member does not violate a duty or obligation under this chapter or under the operating agreement solely because the member’s conduct furthers the member’s own interest.
(h) If, as permitted by subsection (f) of this section or the operating agreement, a member enters into a transaction with the limited liability company which otherwise would be prohibited by subsection (b)(2) of this section, the member’s rights and obligations arising from the transaction are the same as those of a person that is not a member.
(1) Subsections (a), (b), (c), and (e) of this section shall apply to the managers and not the members.
(2) The duty stated under subsection (b)(3) of this section shall continue until winding up is completed.
(3) Subsection (d) of this section shall apply to the members and managers.
(4) Subsections (f) and (g) of this section shall apply only to the members.
(5) A member shall not have any fiduciary duty to the company or to any other member solely by reason of being a member.
This section is referenced in § 29-801.07, § 29-804.06, § 29-804.08, § 29-806.02, and § 29-806.03.
The 2013 amendment by D.C. Law 19-210 deleted “fiduciary” preceding “duties” in (a); substituted “activities and affairs” for “activities” in (b); rewrote (c); substituted “duties and obligations” for “duties” in (d); redesignated former (g) as present (i); in present (i)(4) substituted “Subsections (f) and (g)” for “Subsection (f)”; and added present (g) and (h).
Uniform Law: This section is based on § 409 of the Uniform Limited Company Act (2006 Act).


An automobile supplier is alleged to have terminated its relationship between an individual presented testimony against the manufacturer. Even if true, the alleged wrongful acts occurring within a short time did not meet the RICO continuity requirement.
Plaintiffs-Appellants Mark Zastrow and his company Heights Autohaus (collectively, “Zastrow”) appeal from the district court’s grant of summary judgment on their claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO“), 18 U.S.C. §§ 1961-1968, and 42 U.S.C. §§ 1981 and 1982. For the reasons to be explained, we AFFIRM the district court’s judgment on Zastrow’s civil RICO claim and § 1982 claim, but VACATE its judgment on Zastrow’s retaliation claim under § 1981 and REMAND the case for further proceedings consistent with this opinion.
Zastrow owns Heights Autohaus, an automobile repair shop that performs mechanical repairs on German cars. Zastrow previously purchased all of his Mercedes-Benz parts from Houston Auto M. Imports, Ltd. d/b/a Mercedes-Benz of Houston Greenway (“Mercedes Greenway”) at a 25% discount. In September of 2012, Zastrow’s customer and attorney in this action, Reginald E. McKamie, Sr., brought Zastrow a 2006 Mercedes-Benz CLK (“CLK”) to inspect. Unbeknownst to Zastrow at the time, the vehicle was the subject of a lawsuit against Mercedes Greenway that had been compelled to arbitration. The plaintiffs in that suit, Jesse Howard and JoAnn Jefferson-Howard (collectively, the “Howards”), also represented by McKamie, alleged that the CLK that Mercedes Greenway sold them was defective, and asserted claims against the dealership for fraud, negligence, breach of contract, breach of warranty, breach of fiduciary duty, credit discrimination, and racial discrimination and retaliation.
Zastrow inspected the CLK and discovered a number of mechanical problems with the vehicle. McKamie then asked Zastrow if he would testify as an expert witness in the Howards’ lawsuit and Zastrow agreed. Zastrow’s deposition was scheduled for January 8, 2013. Zastrow alleges that on January 7, 2013, he received a phone call from a Mercedes Greenway employee advising him not to sit for the deposition and warning him that he would regret it. Zastrow, however, appeared for the deposition and testified about his inspection of the vehicle. On January 9, 2013, the day after his deposition, Zastrow received a phone call from the same Mercedes Greenway employee, who then informed Zastrow that Mercedes Greenway would no longer sell parts to him.
The final arbitration hearing began the following week on January 14 and concluded on January 17, 2013. On January 14, Mercedes Greenway’s counsel, George A. Kurisky, Jr., mailed Zastrow a letter on behalf of Mercedes Greenway formally severing the dealership’s business relationship with Zastrow because of his deposition testimony. Zastrow did not testify at the arbitration hearing and was unaware it was taking place. His deposition testimony, however, was read to the arbitrator.
On January 23, 2013, McKamie sent the arbitrator a letter captioned “Notice of Retaliation Against Witness in Discrimination Suit and Intent to Sue.” On March 4, 2013, Zastrow filed the instant lawsuit naming as defendants Mercedes Greenway, Kurisky, and Kurisky’s law firm, Johnson, Deluca, Kurisky & Gould, P.C. Although Zastrow propounds a potpourri of legal theories, the gravamen of his complaint is that Mercedes Greenway threatened him to prevent him from testifying and then, with the assistance of Kurisky, retaliated against him by refusing to sell him auto parts after he gave his deposition. The district court granted summary judgment to defendants on all claims, and Zastrow appealed the judgment as to his claims under Rico and 42 U.S.C. §§ 1981 and 1982.
We review a district court’s grant of summary judgment de novo, applying the same legal standard as the district court. Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 559 (5th Cir.2003) (per curiam). Summary judgment is appropriate only if, interpreting all facts and drawing all reasonable inferences in favor of the non-moving party, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Where a summary judgment motion mounts challenges solely to the sufficiency of a plaintiff’s pleadings, we review those challenges under a motion to dismiss standard. Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993). Under this standard, “[t]he plaintiff must plead enough facts to state a claim to relief that is plausible on its face.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir.2012) (internal quotation marks omitted). “We accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id. (alteration and internal quotation marks omitted).
Zastrow first argues that the district court erred in granting summary judgment to defendants on his civil RICO claim. A civil plaintiff has standing to sue under RICO if he has been “injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). Zastrow brought his claim under § 1962(c), which we have distilled to mean that “a person who is employed by or associated with an enterprise cannot conduct the enterprise’s affairs through a pattern of racketeering.” In re Burzynski, 989 F.2d 733, 741 (5th Cir.1993) (per curiam). To succeed on his claim, Zastrow must provide evidence of the existence of “1) a person who engages in 2) a pattern of racketeering activity, 3) connected to the acquisition, establishment, conduct, or control of an enterprise.” Id. (internal quotation marks omitted).
“Racketeering activity” means any of the predicate acts specified in § 1961(1). Zastrow alleges that defendants obstructed justice in violation of 18 U.S.C. § 1503 by attempting to intimidate him to prevent him from giving deposition testimony and testifying at the arbitration hearing. As relevant here, that statute makes it a criminal offense to “corruptly or by threats or force, or by any threatening letter or communication…. endeavor to influence, obstruct, or impede, the due administration of justice.” 18 U.S.C. § 1503(a). In support of his claim, Zastrow 560*560 identifies three purported criminal actions by defendants: (1) the January 7 phone call from Mercedes Greenway warning him not to testify; (2) the January 9 phone call from Mercedes Greenway informing Zastrow that it would no longer sell him auto parts; and (3) the January 14 letter from Kurisky officially ending Mercedes Greenway’s business relationship with Zastrow because of his deposition testimony.
Zastrow’s claim fails initially because he cannot show the “pattern of racketeering activity” required to prosecute a civil RICO claim. A pattern of racketeering activity “consists of two or more predicate criminal acts that are (1) related and (2) amount to or pose a threat of continued criminal activity.” Abraham v. Singh, 480 F.3d 351, 355 (5th Cir.2007) (internal quotation marks omitted).
First, Zastrow has, at best, identified only a single predicate act under § 1503: the January 7 phone call. Although he attempts to squeeze all three of defendants’ actions under § 1503, an obstruction of justice statute, it is clear that the phone call and letter terminating Mercedes Greenway’s business relationship with Zastrow were not attempts “to obstruct or impede the proceeding,” United States v. Williams, 874 F.2d 968, 977 (5th Cir.1989), but, as Zastrow claims in his briefing, “retaliatory in nature.” (emphasis added). That is, Mercedes Greenway’s termination of dealings with Zastrow cannot be construed as threats to prevent his live testimony in the arbitration hearing because there was no threat of further penalty — the dealership unequivocally terminated its business with Zastrow because of his deposition testimony, it did not make future dealings contingent on his absence at the hearing (or indicate in any way that it would reconsider its decision if Zastrow did not testify).
Witness retaliation is a separate crime covered by 18 U.S.C. § 1513, the violation of which also qualifies as a predicate act under RICO. 18 U.S.C. § 1961(1). Defendants’ purported misconduct, however, clearly does not fall under this statute (and Zastrow does not argue that it does). See 18 U.S.C. § 1513(a)-(b) (prohibiting killing, causing bodily injury, or damaging the tangible property of another person, or threatening to do so, with the intent to retaliate against a witness); id. § 1513(e) (prohibiting the “interference with the lawful employment or livelihood of any person for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense”). Thus, even assuming the validity of Zastrow’s theory that threatening to sever a voluntary business relationship constitutes obstruction of justice under § 1503, only Mercedes Greenway’s initial phone call warning Zastrow not to testify would qualify as a predicate act under RICO.
Moreover, even assuming that the two phone calls and the letter constitute three predicate acts under § 1503, 561 Zastrow would still fail to satisfy the continuity requirement. “To establish continuity, plaintiffs must prove `continuity of racketeering activity, or its threat.'” Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 122 (5th Cir.1996) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)). “This may be shown by either a closed period of repeated conduct, or an open-ended period of conduct that `by its nature projects into the future with a threat of repetition.'” Id. (quoting H.J. Inc., 492 U.S. at 241, 109 S.Ct. 2893). Continuity over a closed period requires proof of “a series of related predicates extending over a substantial period of time.” H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893. “Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement….” Id. Continuity over an open period requires “a threat of continued racketeering activity.” Id. This may be established where the predicate acts “themselves involve a distinct threat of long-term racketeering activity” or “are part of an ongoing entity’s regular way of doing business.” Id. at 242-43, 109 S.Ct. 2893.
The alleged witness intimidation and retaliation were committed within one week and were directed towards, at most, two discrete events: Zastrow’s deposition and his possible testimony at the arbitration hearing. “[W]here alleged RICO predicate acts are part and parcel of a single, otherwise lawful transaction, a `pattern of racketeering activity’ has not been shown.” Word of Faith, 90 F.3d at 123. We have held that, where all of the alleged predicate acts took place in the context of defending a lawsuit, the unlawful conduct “did not constitute or threaten long-term criminal activity.” Burzynski, 989 F.2d at 742-43 (dismissing civil RICO claims because multiple acts of alleged mail and wire fraud were committed in an “otherwise lawful” defense of a lawsuit that was “now over”). As in Burzynski, the alleged predicate acts here were committed in the context of Mercedes Greenway’s defense of a lawsuit. Zastrow cannot credibly argue that obstructing justice is part of defendants’ regular way of doing business or that their purported attempts to intimidate him create a threat of long-term racketeering activity. The entirety of Zastrow’s claim is that Mercedes Greenway refused to sell him parts after he served as an expert witness against the dealership in an arbitration. Any argument that Mercedes Greenway’s business decision threatens long-term criminal activity is frivolous. Thus, Zastrow has not shown that defendants’ alleged predicate acts amount to or constitute a threat of continuing racketeering activity.


"to give up any part of the compensation to which he is entitled under his contract of employment by force, intimidation, threat of procuring dismissal from such employment, or by any other manner whatsoever,"
shall be subject to the penalty therein prescribed. Appellees, union officials, were indicted for conspiring to violate the Act. The indictment charged, inter alia, that, by agreement between appellees and contractors engaged in construction of federal buildings, the contractors agreed to employ as laborers only such persons as were approved by appellees, and to discharge any such employees at appellees' request. Appellees approved for employment, besides union members, only such persons as paid appellees the sum of $5, which was to be regarded as an installment upon the union initiation fee. Payment to appellees of $5 per week thereafter was required until the full initiation fee had been paid, "or the person would not be permitted to continue work upon the said construction." Appellees, contrary to union rules, did not account to the union for moneys received from laborers who quit the employment before paying the initiation fee in full.
Held: that the indictment did not charge an offense punishable under the Kickback Act. P. 327 U. S. 637.
2. The Kickback Act must be construed in the light of the evils which it was designed to remedy. P. 327 U. S. 637.
3. The Kickback Act was not intended to affect legitimate union activity, nor to punish unlawful acts, though committed by union officials in violation of union rules, which are not in the nature of kickbacks. P. 327 U. S. 639.
4. On appeal under the Criminal Appeals Act, this Court is bound by the District Court's interpretation of the indictment as dealing with ordinary union initiation fees, rather than with kickbacks. P. 327 U. S. 641.
Appeal under the Criminal Appeals Act from a judgment dismissing an indictment of the respondents for conspiring to violate the Kickback Act. Affirmed, p. 327 U. S. 642.
This case comes to us under the Criminal Appeals Act [Footnote 1] directly from the United States District Court for the District of Massachusetts. It raises an important question as to the meaning and scope of § 1 of the Act of June 13, 1934, [Footnote 2] commonly known as the Kickback Act, making it unlawful to prevent anyone employed in construction or repair work of a public nature or financed in whole or in part by the United States from receiving the full compensation to which he is entitled.
that, during the period of the alleged conspiracy, October 1, 1940, to March 30, 1941, two contractors were engaged in the construction of various public buildings for the United States at Fort Devens, Massachusetts. The appellees, by virtue of their positions with Local 39, made an agreement with the contractors whereby the latter undertook to employ as laborers only such persons as were approved by appellees, and to discharge any such employees at appellees' request. The contractors also agreed to employ forty persons named by the appellees, known as stewards, to perform such duties as the appellees might direct, and to provide an office for the appellees on the site of the construction. About 7,500 laborers were employed during the course of the construction.
Pursuant to this agreement, the appellees approved to the contractors for employment as laborers members of Local 39 or of other locals of the International Union, and only such other persons as paid the appellees the sum of $5.00. The appellees represented to the latter persons that this payment would be regarded as an installment upon the initiation fee of Local 39 and the International Union, and that each such employee would be required to pay the appellees $5.00 per week until the total initiation fee was paid "or the person would not be permitted to continue work upon the said construction." Receipts were given for each weekly payment. The initiation fee was originally $50.00, but it was later reduced to $40.00, and then to $20.00.
"well knowing and intending that the laborers would pay the said five dollars out of the compensation to which they were entitled under their contracts of employment with the said contractors."
"made no report to the Local 39, or to anyone, of the amount they had received from laborers paying less than the full initiation fee as aforesaid, or the total sums they had collected in this way, nor did they cause any of the sums collected in this way and received by them to be recorded in the Financial Secretary's book as the rules of the said International Union require, the defendants [appellees] well knowing that the majority of those who paid the initial five dollars would not and did not complete payment of the full initiation fee."
"either the history or the purpose of the Kickback legislation warrants an extension of its scope to include these defendants. . . . The closed shop is within the legitimate objectives of trade unionism. Implementation of this objective by the means used by these defendants should not expose them to the risk of criminal prosecution."
From this judgment, the United States appeals.
"to give up any part of the compensation to which he is entitled under his contract of employment, by force, intimidation, threat of procuring dismissal from such employment, or by any other manner whatsoever."
The United States contends that this provision applies to the instant situation inasmuch as the appellees induced certain workers on a federal project to give up part of the compensation to which they were entitled by threatening to procure dismissal from their employment. Emphasis is placed upon the allegation in the indictment that the appellees had power to enforce this threat by reason of the closed shop agreement with the contractors, and upon the further allegation that the appellees neglected to report or to turn over to Local 39 of the International Union all of the money collected, as required by the rules of those organizations.
But, as is apparent from our discussion in the Laudani case, not every person or act falling within the literal sweep of the language of the Kickback Act necessarily comes within its intent and purpose. That language must be read and applied in light of the evils which gave rise to the statute and the aims which the proponents sought to achieve. When that is done, the inapplicability of the Act to the facts set forth in the indictment becomes clear.
"revealed that large sums of money have been extracted from the pockets of American labor, to enrich contractors, subcontractors, and their officials."
"This bill is aimed at the suppression of the so-called 'kickback racket,' by which a contractor on a Government project pays his laborers wages at the rate the Government requires him to pay them, but thereafter forces them to give back to him a part of the wages they have received."
degree, if any, to which the Act applies to the activities of trade unions and their officers. Nor need we question the fact that such officers, on occasion, may make unwarranted use of their powers, thereby reflecting adversely upon the reputation of unionism. It is enough to note that this Act was designed solely to prevent workers from wrongfully being deprived of their full wages, and that evils relating to the internal management of unions were matters with which Congress did not concern itself in enacting the Kickback Act. Accordingly, the broad language of the statute must be interpreted and applied with that background in mind.
Local 39 and the International Union. The indictment is directed only to those payments made by laborers who discontinued working before they paid the last installment. As to such installments, there is no allegation that the failure to return them was unauthorized by union rules, or was in any other way unlawful. Moreover, the fact that the assessments were accompanied by a threat and a power to procure dismissal for failure to pay is but an ordinary incident of the apparently legal closed shop agreement. The sum of these facts, therefore, fails to reveal any of the evils which gave rise to the Kickback Act. All that appears are the normal methods used to implement the legitimate objective of a closed shop. The District Court so viewed the facts. It interpreted the indictment as dealing only with ordinary union initiation fees, rather than with kickbacks as that word is used in the context of this statute. We are bound by that interpretation on this appeal. United States v. Borden Co., 308 U. S. 188.
The crucial fact relied upon by the United States, however, is the alleged failure of the appellees to report or to account to the unions as to those payments made by laborers who quit before making the last installment. But, if that fact be true, it cannot operate retroactively to make the assessments illegal, or to give them the character of kickbacks. It must be assumed from the indictment, as construed below, that the assessments were lawful when made, and that the appellees had the right to make them on behalf of the unions. If the appellees thereafter converted the money to their own use in violation of union rules, the evil falls outside the scope of the Kick-back Act. Embezzlement and failure to obey union rules are matters vastly different from an unlawful demand upon an employee to return part of the wages he has earned. Congress has given no indication in this Act that it desired to deal with such matters.
Act of March 2, 1907, 34 Stat. 1246, as amended by the Act of May 9, 1942, 56 Stat. 271, 18 U.S.C. § 682.
"Whoever shall induce any person employed in the construction, prosecution, or completion of any public building, public work, or building or work financed in whole or in part by loans or grants from the United States, or in the repair thereof, to give up any part of the compensation to which he is entitled under his contract of employment by force, intimidation, threat of procuring dismissal from such employment, or by any other manner whatsoever, shall be fined not more than $5,000, or imprisoned not more than five years, or both."
48 Stat. 948, 40 U.S.C. § 276b.
"I should be unwilling to have the bill passed without the Senate's understanding its purpose. Much has been said on the floor recently about what is known as the 'kickback,' where employer or sub-employers have indecently and immorally taken from employees a part of the wage which it was supposed they were being paid. The testimony before our committee investigating crime is so startling as to indicate that as much as 25 percent of the money supposed to be paid out of Federal funds for employment is actually repaid to employers in this improper manner. The purpose of the bill is to attempt to put some check upon that practice."
"It has been a common practice for contractors constructing Federal buildings to pay the employees the prevailing rate as determined by the Secretary of Labor, and then have them return a certain amount to the contractor. This is a most vicious practice."
"May I suggest to gentlemen on both sides of the House that we are going to attempt to call up on the first opportunity S. 3041, which is known as the 'kickback' bill, preventing contractors from compelling workmen to return a part of their salaries."
"Mr. Daru [counsel for Senate Subcommittee]. Do you think it is usually a dishonest contractor or an employee, superintendent or otherwise, who is sandwiched in between there and getting the 'kickback'?"
"Mr. Dzik. I think it is the contractor and some of the officials of the unions."
"The Chairman. Is it your opinion that there is connivance between the contractor or his representative and certain officials?"
"Mr. Dzik. I think so."
"The Chairman. I take it from what you say that you are placing responsibility largely upon the contractors, or do you also include in your criticism collusion between the contractors and the officers of various unions?"
"Mr. Dzik. I will say that primarily the contractors themselves are responsible, and that they corrupt the officials of the unions, and, in that manner, are able to do it without being exposed. I will tell you why I say that, Senator. I say that, if the officials and labor unions were really interested in this racket, they would immediately pass a resolution suspending the operation of the rule of the union punishing the laborers that exposed it."
Until 1907, no review could be had from a judgment of a district -- or the predecessor, circuit -- court setting aside an indictment. By the Criminal Appeals Act of that year, 34 Stat. 1246, 18 U.S.C. § 682, this Court was given jurisdiction to review such a judgment, but only if the decision of the district court was based exclusively upon the invalidity or construction of the statute which gave rise to the indictment. If the district court construed an indictment as well as a statute, this Court could not entertain the appeal. United States v. Hastings, 296 U. S. 188. Accordingly, when the dismissal of an indictment involved an erroneous ruling in whole or in part upon the sufficiency of the indictment as a matter of pleading, the United States was without remedy. The upshot was that justice might be thwarted through a misconception by a district judge of the requirements of criminal pleading because time might bar a new indictment.
when the terms of the dismissal of an indictment by a district court raise doubts as to the ground on which the dismissal was made, or is a blend of a finding of bad pleading and of a construction of the statute on which the indictment was based, this Court, since the 1942 Act, is under duty not to affirm the district court, but to remand the cause to the circuit court of appeals for that court's disposal of both issues -- interpretation of the indictment and construction of the statute.
The Court applied this procedure in United States v. Swift & Co., 318 U. S. 442, although, or perhaps because, there was a division here as to the meaning of the District Court's action. This course, in my judgment, should now be followed. The scope of the opinion below is certainly not unequivocal. Did the District Court mean that the indictment charged that the defendants acted exclusively as authorized agents of the union in collecting fees, but converted those fees to their own purposes? That may well be embezzlement under the Massachusetts law, but no one would contend that it comes within the terms of the "kick-back" statute. Or did the District Court read the indictment to mean that that which the defendants did was outside the scope of their authority as union officials, and was not done on behalf of the union, and hold that the "kick-back" statute does not apply to persons because they are officers of a union? Or did the District Court read the indictment to mean that the union officials acted on their own, and not for union purposes, but hold that such conduct is not covered by the "kick-back" statute because it applies exclusively to persons who work for the employer and who line their pockets by virtue of their power to assure or withhold employment? Instead of starting with an unequivocal construction of the indictment by the District Court, this Court is itself, in effect, construing the indictment when Congress has withhold from this Court the right to construe indictments.
In view of such doubts concerning the real meaning of what the District Court did, fair administration of the criminal law would seems to preclude affirmance of the judgment below on the assumption that the District Court read the indictment so as to bring into application a construction of the "kick-back" statute for which the Government does not contend. I would dismiss the appeal and remand the District Court's judgment to the Circuit Court of Appeals for the First Circuit for that Court to review the judgment in view of the power of the Circuit Court of Appeals, not possessed by us, to construe the indictment as a preliminary to construing the statute.
"Whoever shall induce any person employed in the construction, . . . of any . . . work, . . . financed in whole or in part by loans or grants from the United States, . . . to give up any part of the compensation to which he is entitled under his contract of employment, by force, intimidation, threat of procuring dismissal from such employment, or by any other manner whatsoever, shall be fined . . . or imprisoned . . . or both."
as to protect those described in the indictments as collecting funds by coercion, through their control over jobs, for their own personal advantage at the expense of the wage earner, the labor union, and the taxpayer.


text:
Those were the only cases granted review following last week’s private Conference. In another significant order, the Court refused, without comment, to allow the state of Louisiana to pursue directly before the Justices its claim that the Census Bureau acts unconstitutionally when it counts undocumented immigrants living in the U.S. Louisiana contended that including those without a legal right to remain in the country as part of the U.S. population gives states with a high percentage of such immigrants an unfair right to added seats in the U.S. House of Representatives. The case was Louisiana, et al., v. Bryson, et al. (docket 140 Original). The Court’s refusal to hold a trial on that issue does not bar Louisiana from seeking to raise it in a lower federal court.
That argument came in Tibbals v. Carter (docket 11-218), urging the Supreme Court to clarify what it meant in in a seldom-cited ruling decades ago in the case of Rees v. Peyton. In its initial ruling in that case, in 1966, the Court ordered a competency hearing for Virginia death-row inmate Melvin Davis Rees, Jr., before it would decide whether to allow him to withdraw his court challenge. In a brief order about a year later, it put the case on hold indefinitely, and never again returned to it. Rees died in prison in 1995.
The Sixth Circuit interpreted the Rees decision, together with a federal law allowing judges to order competency hearings for an accused individual before proceeding with a trial, as creating a statutory right to be competent during a habeas proceeding after a state conviction had become final. But the Circuit Court said there was no constitutional right to be competent during state death-penalty proceedings. It ordered an indefinite delay in a habeas case involving Sean Carter, who was sentenced to death for murdering his 68-year-old adoptive grandmother in 1997. After his state conviction became final, Carter had sought a federal habeas remedy, but later was ruled by a federal judge to be mentally incompetent to deal with his lawyers.
The Supreme Court on Monday granted Ohio’s petition in that case, and in a separate order, also accepted review of Ryan v. Gonzales (10-930), an appeal by Arizona officials supported by 15 other states. In that case, the Ninth Circuit Court found a right to be mentally competent during habeas proceedings, based on a different federal law than the one cited by the Sixth Circuit in the Carter case. The law at issue in the case of Ernest Valencia Gonzales, an Arizona death-row inmate, was a statute that provides a right to a lawyer for a state prison inmate who is too poor to afford one in a federal habeas case. Gonzalez, sentenced to death for a 1990 murder, later raised an issue of his competence. When state officials took the case on to the Supreme Court, Gonzalez had not yet had a competency hearing, but his habeas was was on hold.
The Supreme Court last year asked the Justice Department to provide the federal government’s views on the Arizona petition. U.S. Solicitor General Donald B. Verrilli, Jr., replied that, while the government disagreed with the Ninth Circuit’s view that there was a right to be competent during a habeas case and its view that the individual claiming incompetence had a right to an indefinite delay of his case, the Gonzales case was not a proper one for review of the issue. He cited the fact that Gonzales’s competence had not yet been established, and other procedural limitations.
The Justices, however, granted the Arizona officials’ petition. Both of the new cases will be argued and decided in the case starting October 1.
The Louisiana case seeking to force a recount of the U.S. population as of 2010 involved a lawsuit filed directly in the Supreme Court, without any prior activity in a lower court, under the Constitution’s narrow grant of authority to the Court to actually try some cases on its own. The Court has discretion whether to allow such a case to proceed to a trial, or to simply turn it aside. The plea to file was denied in a one-sentence order, with no indication that any Justice had objected to the denial.
Louisiana had contended that the Constitution limits the ten-year census to people who actually have a right to be in the U.S., and undocumented immigrants do not share that right even though some 11 million of them do live in the U.S. The census provides the population base for allotting the seats that states get in the House of Representatives (every state, regardless of population, gets two seats in the Senate). Louisiana argued that the undocumented immigrants are not evenly distributed across the country, but are concentrated mainly in a few states. With those aliens counted, a state’s population can increase to the point that it gains seats, at the expense of a state — like Louisiana — with comparatively few such immigrants.
The government urged the Supreme Court not to let the case go forward before the Justices. It argued that the census, from the very first count in 1790, has always counted every one living in the U.S., because the Constitution speaks in terms of the “whole number of people in each state.” But the government also argued that federal District Courts are in a better position than would the Supreme Court be to sort out the facts about how the census is counted, and the resulting shift in seats in the House. Its reply noted that two prior cases on the same issue were filed in District Courts, but were dismissed because those who sued did not have a legal right to file such a lawsuit.
The Louisiana lawsuit appeared to have been prompted by the same political sentiment that has led a number of state legislatures to pass laws cracking down on undocumented immigrants living within their borders. The Supreme Court is scheduled to review in April a controversial Arizona law that takes that approach, in the case of Arizona v. U.S. (11-182).
Besides rebuffing the Louisiana lawsuit, the Justices on Monday turned aside a couple of new cases involving continuing legal controversies — an attempt by religious student organizations at San Diego State University to gain official campus recognition, after being banned under a campus anti-discrimination policy (Alpha Delta Chi, et al., v. Reed, et al., 11-744)., and an attempt by a St. Louis man to revive a lawsuit against the Roman Catholic Church in his city for allegedly allowing a priest who molests children to have access to them in church activities. The man claimed he was a victim as a young boy of that priest’s abuse. A state court in Missouri said his case could not proceed, because it would involve the courts in second-guessing religious beliefs and practices. The case was Doe v. Roman Catholic Archdiocese of St.Louis, et al. (11-840).

matches: v. v. v. v. v. v. v.


D.C. Law Library - § 7–1721.05. Package requirements.
↪ § 7–1721.05. Package requirements.
§ 7–1721.04. Self-service sale of tobacco.
(a) No person shall sell or distribute to any person within the District of Columbia any cigarettes except in packages containing no less than 20 cigarettes.
(b) This section does not apply to a tobacco specialty store.
(c) Any person who violates subsection (a) of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $500 nor less than $100, imprisoned not more than 30 days, or both, for the first offense. Any person convicted of a subsequent violation of subsection (a) of this section shall be fined not more than $1,000 nor less than $500, imprisoned not more than 90 days, or both.
(d) Any license to sell tobacco products issued pursuant to § 47-2404 may be suspended for a first or second violation of subsection (a) of this section. The license shall be revoked for a third or subsequent violation of subsection (a) of this section.
This section is referenced in § 7-1721.07.
Applicability of D.C. Law 21-191: § 5 of D.C. Law 21-191 provided that the change made to this section by § 2(e) of D.C. Law 21-191 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.


Defendant Meltzer is a professional Internet "spammer" who used the Internet to commit securities fraud. In return for compensation from stock promoters and issuers, Meltzer sent millions of unsolicited emails and created numerous websites to promote various penny stocks. In order to conceal his identity - and to avoid the detection of web hosts seeking to stop Internet spam - Meltzer operated under at least thirty different assumed Internet identities.
Meltzer's spam and websites made false and misleading representations about the stock he helped to promote. First, Meltzer falsely stated that his recommendations represented his own investment opinions based on his review of the issuer's public filings and his interviews with the issuer's management. In fact, Meltzer did not review the issuers' filings, did not interview their management, and simply republished recommendations and representations that he received from the promoters who had hired him.
Second, in his emails and websites, Meltzer knowingly or recklessly made false and misleading representations concerning the issuers' current business and projections of future performance that had no reasonable basis in fact.
Between 1998 and 2001, Meltzer touted the stocks of at least twelve issuers and received at least $159,619.62 in stock and cash as ill-gotten gains as a result of his fraudulent conduct.
Meltzer violated and, unless restrained and enjoined, may again violate Section 17(a) of the Securities Act of 1933 ("Securities Act"), 15 U.S.C. § 77q(a), Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5.
The Commission seeks to enjoin Meltzer from engaging in the transactions, acts, practices, and courses of conduct alleged in this complaint, and seeks disgorgement, payment of civil penalties, a penny stock bar and such other relief as the Court may deem appropriate.
The Commission brings this action pursuant to authority conferred upon it by Sections 20(b), (d) and (g) of the Securities Act, 15 U.S.C. §77t(b), (d) and (g), and Sections 21(d) and (e) of the Exchange Act, 15 U.S.C. §78u(d) and (e), to permanently enjoin Meltzer from future violations of the federal securities laws and for other relief.
This Court has jurisdiction over this action, and venue is proper, pursuant to Section 20(b) and (d) and 22(a) of the Securities Act, 15 U.S.C. §77t(b) and (d) and 77v(a), and Sections 21(d) and 27 of the Exchange Act, 15 U.S.C. §§78u(d) and 78aa. Venue lies in this District because certain acts or transactions constituting the violations occurred in this District.
Meltzer, directly or indirectly, made use of the means or instruments of transportation or communication in interstate commerce, or of the mails, in connection with the acts, transaction, and practices alleged herein, some of which took place in New York, including, but not limited to, the dissemination of materially false and misleading materials through emails sent to residents in New York and the formation and performance of contracts to disseminate stock touts for a New York-based entity whose principals reside in the Eastern District.
Meltzer, age 37, is a resident of St. Paul, Minnesota. During the relevant time period, Meltzer owned and operated Interstock Inc., a private Nevada corporation, and Hoek Industries, Inc., a private Minnesota corporation. Both entities offered web hosting, web design, and unsolicited emails advertising services to clients.
Beginning in at least 1998 and continuing through at least February 2001, Meltzer contracted with various stock promoters and issuers to disseminate stock recommendations over the Internet. Meltzer promoted the stocks of at least twelve issuers. Each of the stocks that Meltzer touted were quoted on the over-the-counter bulletin board ("OTCBB") and were registered with the Commission pursuant to Section 12 of the Exchange Act.
In order to flood the Internet with promotional materials, Meltzer launched numerous websites, each having a different Internet address, and registered these websites under various business names, such as GrowthStocks2000 and Wisestocks2000. Meltzer then engaged in a pattern of sending to potential investors millions of unsolicited emails, which contained stock recommendations and/or links to Meltzer's promotional websites, and which purported to originate from numerous, distinct sources. Meltzer assumed multiple, distinct Internet "identities," including domain names and business names, which enabled him to establish a large Internet presence to tout a company's stock and to avoid detection by web hosts who seek to prevent Internet spam. Meltzer used at least 30 different names under which he conducted his business.
As a result of the fraudulent conduct described herein, Meltzer received ill-gotten gains of at least $159,619.62 in cash and securities, which he sold.
The stocks Meltzer recommended were penny stocks. By virtue of the conduct described herein, Meltzer engaged in activities with issuers, brokers, dealers and promoters for purposes of issuing, trading, inducing or attempting to induce the purchase or sale of penny stock and therefore was a person participating in an offering of penny stocks.
In communications that he distributed concerning the issuers, Meltzer falsely represented his stock picks as the product of his own investment analysis.
All statements of opinions are those of [Meltzer Entity]. [Meltzer Entity] relies exclusively on information gathered from public filings on featured companies, as well as, in certain circumstances, interviews conducted by [Meltzer Entity] of management of featured companies.
These representations were materially false and misleading. In fact, the opinions contained in Meltzer's communications were not his own, and Meltzer did not rely on information gathered from the issuers' public filings or conduct any interviews of management of any company he profiled.
Meltzer's emails and websites merely repeated statements provided to him by the promoters who hired him and Meltzer performed no due diligence or independent research on the issuers he recommended. Meltzer failed to disclose that fact. As a result, his recommendations were materially false and misleading.
In his emails and websites, Meltzer made materially false and misleading representations about the business prospects and financial condition of the issuers. Set forth below, are examples of Meltzer's misrepresentations.
Beginning in December 1999 and continuing through February 2001, Meltzer flooded the Internet with touts concerning CityView. Meltzer set up at least five websites, each having a unique Internet address, to recommend CityView's securities. Meltzer directed potential investors to the websites by sending millions of unsolicited emails containing hyperlinks to the various websites.
Meltzer touted CityView on a website and in emails sent in December 1999 and March 2000, all purportedly originating from an entity called "Stock-Vest." Those touts stated, "After speaking to management, we believe that down the road [CityView] could be a potential takeover target. Also, according to company management, a future acquisition is possible. � Based on its proven oil and gas reserves the share price should be valued at over ten times its current share price. It is approximately one-tenth its potential value."
These representations were false and misleading. Meltzer never spoke with CityView's management and his statements regarding CityView's future prospects had no reasonable basis in fact.
Meltzer's subsequent CityView touts featured CityView's acquisition of an interest in an Australian private company, which purportedly owned a Business-to-Business software product. The touts spoke of CityView and its deal with the Australian company in glowing terms and directed readers to one of Meltzer's websites, which included financial projections for CityView and the Australian company. For the years 2001 through 2004, the projections stated the Australian company's total estimated revenues at $1.8 million, $6.7 million, $20.22 million, and $37.8 million respectively.
These financial projections were false and misleading and had no basis in fact. Meltzer did not review CityView's filings, did not speak with its management and, instead, merely repeated false and misleading representations, including projected financial results, from the promoters that hired him.
Meltzer's touting of CityView corresponded to sharp increases in the price and volume of trading in CItyView's stock. For example, between December 1999 and January 2000, following Meltzer's first email spam concerning CityView, its stock increased in price from 31 cents, with average daily trading volume between 100,000 and 200,000 shares, to a high price of $2.50 on January 24, 2000, on trading volume of over 12 million shares. There were similar increases in the price and volume of CityView's stock in February, March and April, each correlating in time with Meltzer's emails.
In November and December 2000, Meltzer disseminated millions of emails touting the stock of Bach-Hauser and directing recipients to websites he had launched containing a profile of Bach-Hauser. Meltzer sent bulk emails under the name "Stockmarket Profile," containing hyperlinks directing the recipient of the emails to his websites. Meltzer set up at least two websites to tout Bach-Hauser, purportedly run by entities named "Wisestocks2000," and "StockMarketLetter."
Meltzer's Bach-Hauser touts generally included glowing reviews of Bach-Hauser's business prospects. In fact, according to its public filings at the time, Bach-Hauser was a shell corporation, with no revenues since its inception in 1995, with only $4,500 in assets (all of which were intangible), and with no financing plans.
Certain of Meltzer's touts of Bach-Hauser stated, "After speaking with Management, we are aware that the Company is in advanced negotiations to acquire possibly four or five additional cutting edge technologies."
These representations were false and misleading. In fact, Meltzer never spoke with Bach-Hauser's management and Meltzer omitted that Bach-Hauser's purported negotiations to acquire technologies were contingent upon its receiving $100 to $200 million in financing, which was not available to Bach-Hauser.
Another of Meltzer's Bach-Hauser touts stated that Bach-Hauser had acquired a 40% interest in the "Biochex Project" that was expect to generate $100 Million in royalty income to Bach-Hauser.
These representations were false and misleading. In fact, Bach-Hauser had not acquired any interest in any such project.
In February 2001, Meltzer recommended Envirokare on a website, which purportedly originated from an entity called "StockMarketLetter." On the website, Meltzer projected annual income for Envirokare for 2001, 2002 and 2003 of $2.2 million, $4.3 million and $6.6 million, respectively. These projections lacked a reasonable basis in fact. According to its public filings, Envirokare was a development stage company that had reported zero revenue since its inception in 1998.
In April 2000, Meltzer touted Silk Botanicals in emails directing investors to a website located at http://www.stock-researcher.com. The emails projected potential sales for Silk Botanicals of over $52 million a year, with a potential for an additional $60 million in annualized sales. The website projected revenues for Silk Botanicals for 2001, 2002, and 2003, of $11.9 million, $20.5 million, and $31.5 million respectively. These projections lacked a reasonable basis in fact. According to its Form 10-SB, Silk Botanicals had minimal capital available to meet future obligations and to carry out its planned operations. Silk Botanicals' pending registration statement reported a net loss, a negative working capital, stockholders' deficit, and stated that, as of May 31, 1999, the company had not commenced the marketing and distribution of its product.
The Commission re-alleges and incorporates by reference the allegations contained in Paragraphs 1 through 33 above.
Meltzer, directly or indirectly, in the offer or sale of securities, by the use of means or instruments of transportation or communication in interstate commerce or by use of the mails, has knowingly or recklessly: (a) employed devices, schemes, or artifices to defraud; (b) obtained money or property by means of untrue statements of material fact and omissions to state material facts necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; and (c) engaged in transactions, acts, practices and courses of business which operated or would operate as a fraud upon purchasers of securities and upon other persons.
As part of and in furtherance of this violative conduct, Meltzer knowingly or recklessly made the false and misleading representations described in paragraphs 15-33 above. The foregoing misrepresentations were material and were made in the offer and sale of securities.
By reason of the foregoing, Meltzer has directly or indirectly violated, and unless restrained and enjoined, will again violate, Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a).
Meltzer, directly or indirectly, by the use of the means or instrumentalities of interstate commerce, or of the mails, or of the facilities of a national securities exchange in connection with the purchase or sale of securities, knowingly or recklessly, has: (a) employed devices, schemes or artifices to defraud; (b) made untrue statements of material fact or omitted to state material facts necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; and (c) engaged in acts, practices or courses of business which operated or would operate as a fraud or deceit upon purchasers of securities and upon other persons.
As part of and in furtherance of this violative conduct, Meltzer knowingly or recklessly made the false and misleading representations described in paragraphs 15-33 above. The foregoing misrepresentations were material and were made in connection with the purchase and sale of securities.
By reason of the foregoing, Meltzer has directly or indirectly violated, and unless restrained and enjoined, will again violate, Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5.
(c) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.
Enter an Order requiring Meltzer to account for and to disgorge all monies obtained through the illegal activities described above, plus prejudgment interest thereon.
Enter an Order requiring Meltzer to pay civil penalties pursuant to Section 20(d) of the Securities Act, 15 U.S.C. §77t(d), and Section 21(d) of the Exchange Act, 15 U.S.C. § 78u(d).
Enter an Order, pursuant to Section 20(g) of the Securities Act and Section 21(d) of the Exchange Act, permanently prohibiting Meltzer from participating in an offering of penny stock, including engaging in activities with a broker, dealer, or issuer for purposes of issuing, trading, or inducing or attempting to induce the purchase or sale of any penny stock.
Enter an Order granting such other relief as this Court may deem just and appropriate.


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In the Spring 2014 Edition of the Police Beat, OPBA Attorney Joe Hegedus discussed whether a police officer’s personnel file must be disclosed to a defendant in light of Brady v. Maryland, 373 U.S. 83 (1963) and its subsequent line of cases. In that article, Attorney Hegedus pointed out that the Supreme Court in Bradyheld “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. The Court has also held, “that the duty to disclose such evidence is applicable even though there has been no request by the accused.” United States v. Agurs, 427 U.S. 97, 107, (1976). The Court expanded the duty to disclose evidence where, “the duty encompasses impeachment evidence as well as exculpatory evidence.” United States v. Bagley, 473 U.S. 667, 676, (1985). In Kyles v. Whitley, 514 U.S. 419 (1995), the Court defined what evidence is “material” by stating, “Such evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Kyles, 514 U.S. 419, 433-434. Attorney Hegedus cited numerous subsequent cases that detail the present state of the law related to Brady and the duty to disclose, none of which broadens the responsibilities of prosecutors to disclose all matters in an officer’s personnel file in all cases.
Unfortunately, as part of another attack on the profession, this time legal counsel and advocates for Employers have attempted to seize on Brady as a means to justify disciplining or terminating an officer. Employers and apparently some prosecutors have advocated for a broad “Brady List” which, in theory, would exclude a police officer who has ever been alleged to have been dishonest or untruthful from remaining employed as a police officer. A Google search of “Brady list” or “Brady Cops” will show over 500,000 results. These advocates seem to suggest that there would be a departmental list of officers who have been alleged to be untruthful and as a result, those officers’ credibility would be damaged to the point that they could never testify in court. The theory asserts that the final conclusion to the process is that the officer must be terminated. What these advocates seem to ignore is the present state of the law and the difficulty in determining what conduct qualifies one to be placed on “the list.” What this leads to is Employers randomly selecting which officers they want to terminate and then justifying it by using Brady. Random discipline is directly contrary to the “just cause” standard in the CBA. What is most troubling is that the theory is advanced by advocates who are often hired by the Employer for the disciplinary or termination arbitration to “win-at-all-cost” and don’t have to deal with the consequences or aftermath to the Employers, the officers or the greater cost on the law enforcement community. Employers should realize the long-term damage to their own interests.
In 2003, Police Chief Magazine detailed the difficulty of such a theory. In discussion Brady, Mr. Jeff Noble noted that many departments had instituted a No Lies rule. “The No Lies rule causes managers to deem that Brady has taken their discretion [for termination] away on these cases that fall outside the justified or excusable [conduct] categories. But removing management discretion is not the Brady rule.” Id. “First, it is important to understand that even though the defense gets the information – and they should get it – there is no guarantee that the defense will be able to present the evidence of officer misconduct to the jury. It is the court, not the defense, that makes this determination. In its decision to admit evidence, the court will weigh the evidence to determine if it is more probative than prejudicial. Not all evidence of deceptive conduct by an officer will be admissible.” Id. Evidence that an officer lied in their private life to protect their own interest “would be prejudicial against the officer’s credibility, but at the same time it offers very little probative evidence on the officer’s credibility while testifying in court and therefore most judges would not permit this evidence to be introduced.” Id. “Courts are likely to treat many administrative lies in the same manner.” Id.
As the Supreme Court also noted in Strickler v. Greene, 527 U.S. 263 (1999), citing United States v. Bagley, 473 U.S. 667 (1985) and Kyles v. Whitley, 514 U.S. 419 (1995) “evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Strickler, 527 U.S. 280-281. “*** [Under] the prosecution’s broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes that the outcome was unjust. Thus the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called ‘Brady material’ — although, strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’” Id. (Emphasis added).
In my opinion, there can be no broad Brady list or officer exclusion, because the prosecutor’s determination of whether the disclosure of a police officer’s prior disciplinary record is necessary and exculpatory must be made on a case-by-case basis relative to the evidence in that case. Further, even if disclosed, courts will weigh the evidence to determine if it is more probative than prejudicial. Not all evidence of deceptive conduct by an officer will be admissible. Finally, neither employers nor prosecutors have developed a standard on which to determine what conduct qualifies an officer for inclusion on a “Brady list” or for testimonial exclusion.
 Noble, Jeff, Police Officer Truthfulness and the Brady Decision, The Police Chief, vol. 70, no. 10, October 2003.