For the Petitioner: Carole Rafferty, Esq.
For the Respondent: William Van Hook, Esq.
A motion to appear pro hac vice requires a Rule II(B) certification as to the morals and character of the applying attorney. In re Certification of Belgrove, 8 FSM Intrm. 74, 77 (App. 1997).
The FSM Supreme Court has the discretion to properly raise the issue of the fitness and character of an applicant for admission to the FSM bar even when the rule's requirements have been met by the applicant's actions because the court may require, in addition to the applicant's certificate, other proof of good character. In re Certification of Belgrove, 8 FSM Intrm. 74, 77 (App. 1997).
When there are pending criminal or professional responsibilities charges against an applicant to the FSM bar the FSM Supreme Court normally has the necessary discretion to investigate and reach a conclusion concerning the applicant's character and fitness. That discretion may be abused by an unexplained, lengthy delay. Failure to exercise the discretion within a reasonable time is an abuse of the discretion. In re Certification of Belgrove, 8 FSM Intrm. 74, 77-78 (App. 1997).
Mandamus will lie to require the performance of a clear non-discretionary duty, or to prevent a clear abuse of power, but it does not lie to control judicial discretion, except when that discretion has been abused. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).
Although mandamus cases usually involve judges and arise out of pending cases, a case may arise out of an administrative procedure and the public official may be a clerk instead of a judge or justice. Nonetheless the same principles apply, and mandamus may be the appropriate remedy where there is undue delay. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).
As with other extraordinary writs, mandamus will not issue unless no other adequateremedy is available. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).
When there is no right of appeal from the Chief Clerk's deferral of an applicant's certification as an attorney entitled to practice law before the FSM Supreme Court, and no other remedy exists, and when the deferral was without giving the applicant a hearing, and the deferral was continued during an unexplained, lengthy delay in the subsequent disciplinary proceeding, constituting an abuse of the discretion allowed by the admission rules, a writ of mandamus will lie to compel the certification of the applicant. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).
Chief Clerk of Court to certify her as an attorney entitled to practice law before the FSM Supreme Court. The petition was served the same day on the respondent, the Chief Clerk of Court, and on the Chief Justice. The respondent appears to have been delegated authority to administer the Rules of Admission. He processes the applications, administers the bar examination and certifies that the applicants have met the requirements of Rule II of the FSM Rules for Admission.
Pursuant to Rule 21(c) of the Rules of Appellate Procedure and our order the respondent filed his answer to the petition on April 14, 1997. He is represented by the General Counsel of the FSM Supreme Court. The case presents no disputed facts.
The petitioner applied for and successfully passed the bar examination given on August 1, 1996. On September 25, 1996, the Chief Justice directed the respondent to "defer" petitioner's admission because of three matters that arose in July, 1996 in the course of one case in which the petitioner, an FSM assistant attorney general, represented the government. The respondent has continued to obey that direction. But for the deferral, the respondent would have certified the petitioner as an attorney.
We conclude that the direction to defer the admission without giving the petitioner a hearing is unlawful and the unexplained lengthy delay in the subsequent disciplinary proceeding is an abuse of discretion, and that the writ should issue.
In compliance with Rule II of the FSM Rules for Admission to Practice Before the FSM Supreme Court, the petitioner applied to take the August 1996 bar examination and submitted a Certificate of Good Standing from California and her affidavit to meet the morals and character requirement pursuant to Rule II(B). On July 18, 1996, the respondent notified the petitioner that she was expected to take the examination on August 1, 1996.
On September 12, 1996, the respondent notified the petitioner that she had passed the examination, and requested that her statement of good moral character and fitness for admission be updated. The petitioner fulfilled this requirement by submitting her affidavit to the respondent on September 16, 1996.
On September 25, 1996, the Chief Justice instructed the respondent by letter to defer the petitioner's admission. The pertinent paragraph is quoted below because it caused the deferral and because it is the complaint or charge that later initiated disciplinary proceedings against the petitioner.
There is pending In the Matter of Ting Hong Oceanic Enterprises Co. Ltd. a motion by Ting Hong Counsel asking the Court to order the FSM Attorney General and Assistant Attorney General Angela Belgrove to show cause why they should not be found in contempt for disobedience of this Court Order of July 5, 1996. There is also the question of whether Ms. Belgrove made misrepresentation to the Court during the July 26, 1996 hearing regarding whether the documents received from Ting Hong had been copied at the time. I am also concerned about the timing of the filing of the motion to stay on July 10, 1996. Because of the pendency of these matters, I think it would be appropriate that the admission of Ms. Belgrove to practice law in the FSM Supreme Court be deferred. Ms. Belgrove may continue to appear in the cases in which she has already been granted permission to appear under Rule VI A [sic] of the FSM Rules of Admission.
The petitioner received a copy of this letter on September 25. On September 27, she wrote the Chief Justice reviewing her compliance with the rules and requesting that he reconsider the deferral.
Alternatively, she requested information of what procedures the court intended to follow and whether she would have an opportunity to be heard. On September 30, the Chief Justice wrote in reply that the matter would be handled under the Disciplinary Rules and Procedures [which became effective on October 1, 1996].
On December 4, the Chief Justice instructed the respondent to docket a disciplinary proceeding against the petitioner based on documents he enclosed ) the letters of September 25, 27 and 30 described above, and Ting Hong's Motion to Show Cause. By letter of January 6, 1997, the Chief Justice advised the respondent that he had assigned the matter to himself for preliminary review pursuant to Rule 4(b) of the Disciplinary Rules and Procedures. The Chief Justice has neither dismissed the complaint nor assigned a Disciplinary Counsel.
On January 30, 1997, the petitioner received notice of the pending disciplinary matter by the respondent's letter to her that the Chief Justice had assigned the case to himself for preliminary review. On February 20, 1997, the petitioner wrote the respondent requesting that, to assist in the review, the disciplinary file be supplemented with certain existing documents and with two additional affidavits.
On February 17, 1997, the petitioner filed a Petition for Admission to Practice Before the FSM Supreme Court in the trial division. It was addressed to the Chief Justice and the respondent. The petition related the petitioner's compliance with and successful fulfillment of each part of the Rules of Admission. The disciplinary proceeding was not mentioned. There has been no response to the petition.
The Chief Justice has permitted the petitioner to continue to appear pro hac vice in matters that she had been given approval to appear in prior to her taking the bar examination and in matters that have arisen since she was notified of the deferral. Each motion to appear pro hac vice requires a certification pursuant to Rule II(B) as to the morals and character of the attorney applying to appear. Subsequent to the deferral, the Chief Justice has granted motions containing these certifications.
By September 16, 1996, the petitioner had fulfilled every requirement of the Rules of Admission. This gave her the right to be certified as an attorney entitled to practice.
The petitioner contends that the respondent had a nondiscretionary duty to certify the applicant at that time. She relies on Rule II in its entirety, which at its end includes this sentence: "Upon Court certification of successful completion of the examination, the applicant shall be certified as an attorney entitled to practice law before the Federated States of Micronesia Supreme Court." FSM Adm. R. II(D).
We do not agree that the respondent had no discretion in the matter. Rule II(B) (Morals and Character Requirements) includes, "The court may require, in addition to the applicant's certificate other proof of good character." We hold that this permits the court to properly raise the applicant's fitness even when the requirements of the rule have been met by the applicant's actions.
Properly, evidence that she did not meet the morals and character requirement had to be produced in order to deny or to defer her admission. In re Evans, 524 F.2d 1004, 1007 (5th Cir. 1975). Due process required that she be given prompt notice of the problem and given an opportunity to be heard. She was informed of the problem, but her request to be heard met the response that a forthcoming disciplinary proceeding would provide the process that was due. There has never been a hearing.
Instead of affording a prompt hearing, the matter was indefinitely postponed. That violated the petitioner's due process rights. There is no finding before the respondent that the petitioner does not meet the morals and character requirements.
With the lodging of the complaint that commenced the disciplinary proceeding, a new element existed because the Rules of Admission contain this passage, "If any such charges, [criminal or of violations of professional responsibilities] . . . are pending or have been made against the applicant these shall be certified and described in detail in the application and will be subject to further investigation by the court." FSM Adm. R. II(B) (emphasis added). This would normally invest the court with the necessary discretion to investigate and reach a conclusion concerning character and fitness. However, that discretion has been abused in this case by the unexplained, lengthy delay in starting and prosecuting the disciplinary proceeding. The failure to exercise the discretion is an abuse of the discretion. That delay has defeated the ends of substantial justice and is manifestly unreasonable. Thus, even though we find that there is discretion in the application of the rules of admission, that discretion has been abused by the failure to exercise the discretion within a reasonable time.
Our cases have held that mandamus will lie to require the performance of a clear non-discretionary duty. See, e.g., In re Raitoun, 1 FSM Intrm. 561, 562 (App. 1984). We have also held that it may lie to prevent a clear abuse of power. Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994). This accords with holdings in the United States. In re Virginia (Virginia v. Rives), 100 U.S. 313, 323, 25 L. Ed. 667, 671 (1880) ("It [mandamus] does not lie to control judicial discretion, except when that discretion has been abused . . . ."); 52 Am. Jur. 2d Mandamus § 311 (1970).
The cases in the FSM Supreme Court involving mandamus involved judges and arose out of pending cases. The present case arises out of an administrative procedure and the public official is the Chief Clerk instead of a judge or justice. Nonetheless the same principles apply. See, e.g., In re Failure of Justice to Resign, 7 FSM Intrm. 105 (Chk. S. Ct. App. 1995). United States authorities are in accord. Hannon v. Bartlett, 402 N.Y.S.2d 710, 712 (N.Y. Sup. Ct. 1977) (unwarranted postponement of civil service examinations: "In view of the undue delay, mandamus is clearly the appropriate remedy."); 52 Am. Jur. 2d Mandamus § 164 (1970).
As with other extraordinary writs, mandamus will not issue unless no other adequate remedy is available. Election Commissioner v. Petewon, 6 FSM Intrm. 491, 497, 1 CSR 5, 9 (Chk. S. Ct. App. 1994). In this case, petitioner has no right of appeal from the Chief Clerk's deferral, nor does another remedy exist. Although not a prerequisite for the writ, we note that the petitioner requested admission from the respondent and from the Chief Justice. She also asked the Chief Justice for a hearing.
As of September 16, 1996, the petitioner had met all the requirements of Rule II(B) and was entitled to be admitted to practice. The deferral of that admission without giving the petitioner a hearing is unlawful. The continued deferral during the unexplained, lengthy delay in the subsequent disciplinary proceeding constituted an abuse of the discretion allowed by the rule. The petition is accordingly granted. The writ will issue.
Our direction that the respondent certify the petitioner as an attorney entitled to practice before the FSM Supreme Court does not affect the pending disciplinary proceeding. The parties invited us to take judicial notice of that proceeding, and we have. We have gone no further.


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The Fibonacci sequence first appeared as the solution to a problem in the Liber Abaci, a book written in 1202 by Leonardo Fibonacci of Pisa to introduce the Hindu-Arabic numerals used today to a Europe still using cumbersome Roman numerals. The original problem in the Liber Abaci asked how many pairs of rabbits can be generated from a single pair, if each month each mature pair brings forth a new pair, which, from the second month, becomes productive. The resulting Fibonacci numbers 1, 1, 2, 3, 5, 8, 13, 21, 34, 55, 89, ..., have been the subject of continuing research, especially by the Fibonacci Association, publisher of the Fibonacci Quarterly since 1963.
1. The Fibonacci numbers are found to have many relationships to the Golden Ratio F = (1 + /5)/2, a constant of nature and a value which fascinated the ancient Greeks, appearing throughout Greek art and architecture. One can verify with a hand calculator that the ratio of Fn+1 to Fn is approximated by 1.6180339..., which is the decimal equivalent of the Golden Ratio.
Aside from an extraordinary wealth of mathematical relationships, there are numerous applications of the Fibonacci numbers in the most diverse fields. The Fibonacci Quarterly (FQ) has served as a focal point for widespread interest in the Fibonacci and related sequences, especially with respect to new results, challenging problems, and innovative proofs. The following references for Fibonacci number theory and applications in botany, biology, physics, music, and art provide an anthology of attractive mathematical ideas, selected from an abundance of material. Articles from all back issues of FQ are available from Bell & Howell Information and Learning, Article Clearinghouse Division, 300 North Zeeb Road, Ann Arbor MI 48106-1346.
1. BOTANY, BIOLOGY. The growth patterns of plants; the geneological tree of the male bee; the crossroads of mathematics and biology.
*S. L. Basin. "The Fibonacci Sequence Appears in Nature." FQ 1.1(1963): 53-56.
S. R. Braun. "Botany with a Twist." Science, May, l986, p. 63-64. Bro. A. Brousseau. "On the Trail of the California Pine." FQ 6.1(1968): 69-76.
H. S. M. Coxeter. Intro. to Geometry. New York: John Wiley, 1961. pp.169-172.
S. Douady and Y. Couder. "Phyllotaxis as a Physical Self-Organized Growth Process." Physical Review Letters 68.13 (1992): 2098-2101.
J. A. H. Hunter and J. S. Madachy. Mathematical Diversions. Princeton: Van Nostrand, 1963. Chapter 2.
Roger V. Jean. "Growth Matrices in Phyllotaxis." Mathematical Biosciences 32 (1976): 165-176.
Roger V. Jean. The Use of Continued Fractions in Botany: UMAP Module 571, Modules and Monographs in Undergraduate Mathematics and Its Applications Project, 1986.
Roger V. Jean. Mathematical Approach to Pattern and Form in Plant Growth, New York: John Wiley, 1984. Frank Land. The Language of Mathematics. New York: Doubleday, 1963.
*Sister Mary de Sales McNabb. "Phyllotaxis." FQ 1.4 (1963): 57-60. Ian Stewart. "Daisy, Daisy, Give me your answer, do." Scientific American 72.1 (1995): 96-99.
C. Sutton. "Sunflower Spirals Obey Laws of Mathematics." New Scientist , 18 April 1992, p. 16.
D'Arcy W. Thompson. On Growth and Form, New York: McMillan, 1944.
2. PHYSICAL SCIENCES. Atomic fission asymmetries; ladder and cascade electronic network analysis; reflection paths of light; musical properties; computer programming and search strategies; tributary patterns of streams and drainage patterns; fractal branching of diffusion aggregates.
J. Arkin. "Ladder Network Analysis Using Polynomials." FQ 3.2 (1965): 139-142.
A. Arneodo, F. Argoul, E. Bacry, J. F. Muzy, and M. Tabard. "Golden Mean Arithmetic in the Fractal Branching of Diffusion-Limited Aggregates." Physical Review Letters 68.23 (1992): 3456-3459.
R. E. Bellman and S. E. Dreyfus. Applied Dynamic Programming, Princeton: Princeton University Press, 1962. pp. 153-154.
*V. E. Hoggatt, Jr., and M. Bicknell. "Primer for Fibonacci Numbers: Part XIV, Morgan-Voyce Polynomials." FQ 12.2 (1974): 147-156.
V. E. Hoggatt, Jr,. and M. Bicknell-Johnson. "Reflections Across Two and Three Glass Plates." FQ 17.2 (1979): 118-142.
S. M. Johnson. "Best Exploration for Maximum is Fibonaccian." Report P-856. RAND Corporation, Santa Monica, 1956.
B. Junge and V. E. Hoggatt, Jr. "Polynomials Arising from Reflections Across Multiple Plates." FQ 11.3 (1973): 285-291.
P. Larson. "The Golden Section in the Earliest Notated Western Music." FQ 16.6 (1978): 513-515.
E. L. Lowman. "An Example of Fibonacci Numbers to Generate RhythmicValues in Modern Music." FQ 9.4 (1971): 423-426 and 436.
E. L. Lowman. "Some Striking Proportions in the Music of Bela Bartok." FQ 9.5 (1971): 527-528 and 536-537.
G. Markowsky. "Misconceptions about the Golden Ratio." College Mathematics Journal 23.1 (1992): 2-19. Extensive references.
H. Norden. "Proportions in Music." FQ 2:3 (1964): 219-222.
J. F. Putz. "The Golden Section and the Piano Sonatas of Mozart." Mathematics Magazine 68.4 (1995): 275-282.
W. E. Sharp. "Fibonacci Drainage Patterns." FQ 10.6 (1972): 643-655.
D. J. Wilde. Optimum Seeking Methods. Prentice-Hall, 1964, pp. 39-41.
J. Wlodarski. "The Golden Ratio and the Fibonacci Numbers in the World of Atoms." FQ 1.4 (1963): 61-63.
3. BUSINESS AND ECONOMICS, EDUCATION, POETRY. Stock market cycles; business cycles; teaching slow learners; analyzing poetry.
J. C. Curl. "Fibonacci Numbers and the Slow Learner." FQ 6.4 (1968): 266-274.
G. E. Duckworth. Structural Patterns and Proportions in Vergil's Aeneid, University of Michigan Press, 1962.
A. J. Faulconbridge. "Fibonacci Summation Economics: Parts I and II." FQ 2.4 (1964): 320-322, and FQ 3.4 (1965): 309-314.
A. J. Frost and R. R. Prechter, Jr. Elliott Wave Principle: Key to Stock Market Profits. Gainesville, Georgia: New Classics Library, 1985.
A. F. Horadam. "Further Appearance of the Fibonacci Sequence." FQ 1.4 (1963): 41-46.
B. Swancoat and E. Kasanjian. "Forecasting Market Turns Using Static and Dynamic Cycles." Technical Analysis of Stocks and Commodities, Sept., 1992, pp. 74-78.
4. THE GOLDEN RATIO, ARCHAEOLOGICAL STUDIES, ARCHITECTURE, FINE ARTS. The Great Pyramid of Gizeh; harmonic design in Minoan architecture; the Parthenon of the Acropolis in Athens; ancient Roman mosaics; the Golden Ratio in art and architecture.
R. S. Beard. "Fibonacci Drawing Board: Design of the Great Pyramid of Gizeh." FQ 6.1 (1968): 85-87.
D. Bergamini and Ed. Mathematics. New York: Time Inc., 1963. Ch. 4.
*M. Bicknell and V. E. Hoggatt, Jr. "Golden Triangles, Rectangles, and Cuboids." FQ 7.1 (1969): 73-91.
M. Bicknell-Johnson. "Fibonacci Chromotology or How To Paint Your Rabbit." FQ 16.5 (1978): 426-428.
R. Fischler. "How to find the "Golden Number" Without Really Trying." FQ 19.5 (1981): 406-410.
#Matila Ghyka. The Geometry of Art and Life. New York: Dover, 1977.
J. Hambidge. Dynamic Symmetry. Yale University Press, 1920.
Dan Harwell. Searching for Design with Fibonacci and Phi . Golden Spiral Publishing, 1842 Matador, Abilene, TX 79605.
H. Hedian. "The Golden Section and the Artist." FQ 14.4 (1976): 406-418.
#P. Hilton and J. Pedersen. Build Your Own Polyhedra. Addison-Wesley Publishing Company, 1988. Golden dodecahedron, pp. 107-110, 123.
#W. Hoffer. "A Magic Ratio Occurs Throughout Art and Nature." Smithsonian, December, 1975, pp. 110-120.
H. E. Huntley. The Divine Proportion. New York: Dover, 1970.
E. E. Kramer. The Main Stream of Mathematics. New York: Oxford University Press, 1955. Chapter 5.
R. E. M. Moore. "Pattern Formation in Aggregations of Entities of Varied Sizes and Shapes as Seen in Mosaics." Nature 209.5019 (1966): 128-132.
R. E. M. Moore. "Mosaic Units: Pattern Sizes in Ancient Mosaics." FQ 8.3 (1970): 281-310.
R. E. M. Moore. "A Newly Observed Stratum in Roman Floor Mosaics." American Journal Archaeology 72.1 (1968): 57-68.
D. A. Preziosi. "Harmonic Design in Minoan Architecture." FQ 6.6 (1968): 370-384.
#G. E. Runion. The Golden Section. Dale Seymour (Box 5026, White Plains, NY 10602), 1990. Fibonacci numbers in art and nature; grades 7-12.
M. Boles and R. Newman. Universal Patterns: The Golden Relationship: Art, Mathematics and Nature. Bradford Massachusetts 01835: Pythagorean Press, 1990. For liberal arts students.
B. A. Bondarenko (translated by R. C. Bollinger). Generalized Pascal Triangles and Pyramids: Their Fractals, Graphs, and Applications. Fibonacci Association, 1993. 253 pages; 532 references.
W. Boulger. "Pythagoras Meets Fibonacci." Mathematics Teacher 82.4 (1989): 277-282.
Brother A. Brousseau. An Introduction to Fibonacci Discovery. Fibonacci Association, 1965. For secondary students.
*M. Bicknell and V. E. Hoggatt, Jr. A Primer for the Fibonacci Numbers. Fibonacci Association,1973. For lower division students.
Richard A. Dunlap, The Golden Ratio and Fibonacci Numbers. World Scientific, New Jersey, 1997.
Martin Gardner. "Mathematical Games: The Multiple Fascinations of the Fibonacci Sequence." Scientific American, March, 1969, pp. 116-120.
#T. H. Garland. Fascinating Fibonaccis: Mystery and Magic in Numbers. Dale Seymour, 1987. Dale Seymour Publications, Box 5026, White Plains, NY 10602. Telephone (800) 872-1100. Grade 6 and up.
#T. H. Garland and C. V. Kahn. Math and Music. Dale Seymour, 1995. See above. #Joseph and Frances Gies. Leonard of Pisa and the New Mathematics of the Middle Ages, Reprinted by New Classics Library, Gainesville, GA, 1969.
V. E. Hoggatt, Jr. Fibonacci and Lucas Numbers. Boston: Houghton-Mifflin, 1969. Now available from Fibonacci Association.
#V. E. Hoggatt, Jr. "Number Theory: The Fibonacci Sequence." 1977 Yearbook of Science and the Future, Encyclopaedia Britannica, pp. 178-191.
Ross Honsberger. "A Second Look at Fibonacci and Lucas Numbers." Chap. 8 in Mathematical Gems III: Dolciani Math Expositions No. 9. M. A. A., 1985.
A. F. Horadam. "Eight Hundred Years Young." Australian Mathemathics Teacher 31.4 (1975): 123-134. The life and mathematics of Fibonacci.
R. V. Jean, "The Fibonacci Sequence," The UMAP Journal V:1, 1984, pp. 23-47.
E. A. Marchisotto. "Connections in Mathematics: An Introduction to Fibonacci via Pythagoras." FQ 31.1 (1993): 21-27. Extensive teaching references.
M. Schroeder. Fractals, Chaos, Power Laws: Minutes from an Infinite Paradise. New York: W. H. Freeman,1991. Numerous references.
S. Vajda. Fibonacci & Lucas Numbers, and the Golden Section: Theory and Application . New York: Halsted Press, John Wiley & Sons, 1989.
J. Varnadore. "Pascal's Triangle and Fibonacci Numbers." Mathematics Teacher 84.4 (1991).
N. N. Vorobyvov. The Fibonacci Numbers. Boston: D. C. Heath, 1963.
#Mark Wahl. A Mathematical Mystery Tour: Higher-Thinking Math Tasks. Zephyr Press, Tucson, AZ, 1988. ISBN 0-913705-26-8. Patterns of nature using Fibonacci numbers and the Golden Section ratio. Middle school.
R. M. Young. Excursions in Calculus: An Interplay of the Continuous and the Discrete . Dolciani Mathematical Expositions Number 13, Mathematical Association of America, 1992. Chapter 3.
*References starred also appear in Primer anthology given above . The Primer for the Fibonacci Numbers ($32.00) and Fibonacci and Lucas Numbers by Hoggatt ($23.00) are available postpaid within the U.S. by sending a check to the Fibonacci Association, c/o Patty Solsaa, Subscription Manager, P. O. Box 320, Aurora, SD 57002-0320. Write for prices for international shipment.
#References marked # are particularly good for children.
Another good source of Fibonacci information!

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Notes: 1. The annually fee under art. 1.4. is calculate at a discount 25% for advance payment of PP UNICO CEZ and have to be paid at the beginning of every annual period upon renewal.
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Oct, 2017 to Present, Assistant Professor | SRM University-AP, Amaravati, India.
2014 to 2017, Postdoctoral Research Associate | King Abdullah University of Science and Technology, Saudi Arabia.
2013 to 2014, Postdoctoral Research Associate | Georgia Institute of Technology, USA.
My research work mainly focuses on computational materials science, that is, I use electronic structure methods as a tool to investigate the electronic properties of novel functional materials. My research activities directed towards the design and development of novel molecules and materials for organic electronic devices. Besides, I am also studying the nature of weak interactions in prototype molecular systems to determine their strength.
Mandal, M. Prakash, R. Mahesh Kumar, R. Parthasarathi, and V. Subramanian.Ab Initio and DFT Studies on Methanol Water Clusters. J. Phys. Chem. A 2010, 114, 2250–2258.
Karthik Kumar, R. Mahesh Kumar, V. Subramanian, T. Mohan Das. Expedient synthesis of coumarin-coupled triazoles via ‘click chemistry’ leading to the formation of coumarin–triazole–sugar hybrids. Carbohyd. Research 2010, 345, 2297–2304.
Mahesh Kumar, M. Elango, and V. Subramanian. Carbohydrate-Aromatic Interactions: The Role of Curvature on XH∙∙∙π Interactions. J. Phys. Chem. A 2010, 114, 4313–4324.
Vijayaraj, S. Sundar Raman, R. Mahesh Kumar, and V. Subramanian. Studies on the Structure and Stability of Cyclic Peptide Based Nanotubes Using Oligomeric Approach: A Computational Chemistry Investigation. J. Phys. Chem. B 2010, 114, 16574–16583.
R Mahesh Kumar, V Subramanian, Quantum Mechanical Studies on Interaction of Carbohydrate with Nanomaterials. J. Biomed. Nanotechnol. 2011, 7,188-190.
Mahesh Kumar, V. Subramanian, Interaction of H2 with fragments of MOF-5 and its implications for the design and development of new MOFs: A computational study. Int. J. Hydrogen Energ. 2011, 36, 10737–10747.
Mahesh Kumar, M. Elango, R. Parthasarathi, and V. Subramanian, Density Functional Theory Studies on Ice Nanotubes. J. Phys. Chem. A, 2011, 115, 12841–12851.
Mahesh Kumar, M. Elango, R. Parthasarathi, D. Vijay and V. Subramanian, The Role of C–H...π Interaction in the Stabilization of Benzene and Adamantane Clusters. J. Chem. Sci. 2012, 124, 193–202.
Balamurugan, Prathab Baskar, R. Mahesh Kumar, Sumitesh Das, and V. Subramanian, Interaction of Carbon Nanotube with Ethylene Glycol−Water Binary Mixture: A Molecular Dynamics and Density Functional Theory Investigation. J. Phys. Chem. C 2012, 116, 4365–4373.
Gopalsamy, M. Prakash, R. Mahesh Kumar, V. Subramanian, Density functional studies on the hydrogen storage capacity of boranes and alanes based cages. Int. J. Hydrogen Energ. 2012, 37, 9730–9741.
Mahesh Kumar, Prathab Baskar, K. Balamurugan, Sumitesh Das, and V. Subramanian. On the Perturbation of the H-Bonding Interaction in Ethylene Glycol Clusters upon Hydration. J. Phys. Chem. A 2012, 116, 4239-4247.
Ravinder, R. Mahesh Kumar, and V. Subramanian, Studies on the Encapsulation of F− in Single Walled Nanotubes of Diﬀerent Chiralities Using Density Functional Theory Calculations and Car−Parrinello Molecular Dynamics Simulations. J. Phys. Chem. A 2012, 116, 5519-5528.
Mahesh Kumar, J. Vijay Sundar and V. Subramanian, Improving the hydrogen storage capacity of metal organic framework by chemical functionalization. Int. J. Hydrogen Energ. 2012, 37, 16070-16077.
Mahesh Kumar, Prathab Baskar, K. Balamurugan, Sumitesh Das, and V. Subramanian, Interaction of ethylene glycol–water clusters with aromatic surfaces. RSC Adv., 2013, 3, 7798-7807.
Sudip Pan, Sukanta Mondal, R. Mahesh Kumar, V. Subramanian, Gabriel Merino, and Pratim K. Chattaraj, Structure and Stability of NgnCN3Be3+ Clusters and Comparison with NgBeY0/+ (Ng=Noble Gas and Y=O, S, Se, Te). Chem. Phys. Chem. 2013, 14, 2511-2517.
Ammu Mathew, Ganapati Natarajan, Lauri Lehtovaara, Hannu Hakkinen, R. Mahesh Kumar, Venkatesan Subramanian, Abdul Jaleel, Thalappil Pradeep. Supramolecular Functionalization and Concomitant Enhancement in Properties of Au25 Clusters. ACS nano, 2014, 8, 139-152.
K Balamurugan, P Baskar, R. Mahesh Kumar, S Das, V Subramanian. Effects of functionalization of carbon nanotubes on their dispersion in an ethylene glycol–water binary mixture–a molecular dynamics and ONIOM investigation. Phys. Chem. Chem. Phys., 2014, 16, 24509-24518.
Min Li, Haitao Wang, Fuquan Bai, Xiaoshi Jia, Di Cao, Ravva Mahesh Kumar, Jean-luc Bredas, Songnan Qu, Binlian Bai and Hong-Xing Zhang. Theoretical study on molecular packing and electronic structure of bi-1,3,4-oxadiazole derivative. RSC Adv., 2014, 4, 51942-51949.
Min Li, Haitao Wang, Fangyi Chen, Xiaoshi Jia, Huimin Liu, Xia Ran, Mahesh Kumar Ravva, Fuquan Bai; Songnan Qu, Hong-Xing Zhang, Jean-Luc Bredas. Controllable molecular aggregation and fluorescence properties of 1,3,4-oxadiazole derivative.J. Mater. Chem. C, 2015,3, 11681-11688.
Tonghui Wang, Mahesh Kumar Ravva, and Jean-Luc Brédas. Impact of the Nature of the Side-Chains on the Polymer-Fullerene Packing in the Mixed Regions of Bulk Heterojunction Solar Cells. Adv. Funct. Mater. 2016, 26, 5913-5921.
Khanh Do, Qasim Saleem, Mahesh Kumar Ravva, Federico Cruciani, Zhipeng Kan, Jannic Wolf, Michael Ryan Hansen, Pierre M. Beaujuge, and Jean-Luc Brédas. Impact of Fluorine Substituents on π-Conjugated Polymer Main-Chain Conformations, Packing, and Electronic Couplings. Adv.Mater. 2016, 28, 8197-8205.
Xian-Kai Chen, Mahesh Kumar Ravva, Hong Li, Sean M. Ryno, and Jean-Luc Brédas Effect of molecular packing and charge delocalization on the non-radiative recombination of charge-transfer states in organic solar cells Adv. Energy Mater. 2016, 6, 1601325.
Sean M. Ryno, Mahesh Kumar Ravva, Xiankai Chen, Haoyuan Li, and Jean-Luc Brédas Molecular Understanding of Fullerene – Polymer or Oligomer Interactions in Organic Solar Cells. Adv. Energy Mater. 2016, 7, 1601370.
Mahesh Kumar Ravva, Tonghui Wang, and Jean-Luc Brédas. Nature of the Binding Interactions between Conjugated Polymer Chains and Fullerenes in Bulk Heterojunction Organic Solar Cells. Chem. Mater. 2016, 28, 8181.
Matthew Menke, Aditya Sadhanala, Mark Nikolka, Niva A. Ran, Mahesh Kumar Ravva, Safwat Abdel-Azeim, Hannah L. Stern, Ming Wang, Henning Sirringhaus, Thuc-Quyen Nguyen, Jean-Luc Brédas, Guillermo C. Bazan, and Richard H. Friend Limits for Recombination in a Low Energy Loss Organic Heterojunction ACS Nano, 2016, 10, 10736.
Mark Nikolka, Iyad Nasrallah, Bradley Rose, Mahesh Kumar Ravva, Katharina Broch, David Harkin, Jerome Charmet, Michael Hurhangee, Adam Brown, Steffen Illig, Patrick Too, Jan Jongman, Iain McCulloch, Jean-Luc Bredas and Henning Sirringhaus High operational and environmental stability of high-mobility conjugated polymer field-effect transistors achieved through the use of molecular additives Nature Materials, 2017, 16, 356-362.
Jianyu Yuan, Niva A Ran, Michael J Ford, Ming Wang, Mahesh Kumar Ravva, Cheng-Kang Mai, Xiaofeng Liu, Jean-Luc Brédas, Thuc-Quyen Nguyen, Wanli Ma, Guillermo C Bazan Structural variations to a donor polymer with low energy lossesJournal of Materials Chemistry A, 2017, 5, 18618-18626.
R. Mahesh Kumar, D. Vijay and G. N. Sastry and V. Subramanian. Concepts and Methods in Modern Theoretical Chemistry, Two volume Set, Ed by S. K. Ghosh; P. K. Chattaraj, CRC Press Taylor and Francis Group, 2013, ISBN 9781466506237.
Mahesh Kumar Ravva, Chad Risko, and Jean-Luc Brédas. Noncovalent Interactions in Organic Electronic Materials (Accepted), Elsevier publications.

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Kenneth J. Kukuda for Petitioner.
[1a] Petitioner seeks writ of mandate to compel the Attorney General to title and prepare summary of a proposed initiative measure.
Petitioner submitted a proposed initiative measure to the Attorney General for title and summary preparatory to obtaining signatures to qualify the measure for the ballot. (See Elec. Code, §§ 3502, 3503.) The measure would (a) make it unlawful for any teacher to strike; (b) prohibit campaign contributions by teachers' organizations; and (c) prevent tax revenues from being used to provide transportation for purpose of racially balancing public schools.
The Attorney General refused to issue the title on the ground that the proposed measure concerns more than one subject thereby violating article II, section 8, subdivision (d), of the California Constitution. The subdivision provides: "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."
The single subject requirement of article II, section 8, subdivision (d), involves difficult legal questions that only a court may resolve. (Cf. Perry v. Jordan, 34 Cal. 2d 87, 92-93 [207 P.2d 47].) We are satisfied that a claim of violation of subdivision (d) is not merely a formal one, but is based on the effects of the contents of the proposed measure. Absent judicial authorization, the Attorney General may not urge violation of the single subject requirement to justify refusal to title and prepare summary of a proposed measure.
This does not mean that the Attorney General may not challenge the validity of the proposed measure by timely and appropriate legal action. We hold only that without prior judicial authorization he may not delay or impede the initiative process while claims of the measure's invalidity are determined. [1b] Petitioner is entitled to have his proposal titled and summarized so that he may commence seeking signatures to qualify it for the ballot.
We express no view as to the merits of the claim that the proposed measure concerns more than one subject.
I must respectfully dissent. The views expressed in the majority opinion are at odds with the recognized powers of the Attorney General derived from constitutional and common law sources and would compel the Attorney General to perform unnecessary acts with respect to an initiative measure which does not meet the requirement for placement on the ballot.
We have recognized the power of the Attorney General to protect the public interest. Recently we reiterated that power in D'Amico v. Board of Medical Examiners, 11 Cal. 3d 1, 14-15 [112 Cal. Rptr. 786, 520 P.2d 10] when we said: "... The Attorney General ... is the chief law officer of [21 Cal. 3d 94] the state (Cal. Const., art. V, § 13). As such he possesses not only extensive statutory powers but also broad powers derived from the common law relative to the protection of the public interest. (See Pierce v. Superior Court (1934) 1 Cal. 2d 759, 761-762 [37 P.2d 460, 96 A.L.R. 1020], and cases there cited, especially People v. Stratton (1864) 25 Cal. 242, 246-247.) '[H]e represents the interest of the people in a matter of public concern.' (Savings Bank v. Superior Court (1894) 103 Cal. 27, 32 [36 P. 1015].) Thus, 'in the absence of any legislative restriction, [he] has the power to file any civil action or proceeding directly involving the rights and interests of the state, ... the preservation of order, and the protection of public rights and interest.' (Pierce v. Superior Court, supra, at pp. 761-762.) Conversely, he has the duty to defend all cases in which the state or one of its officers is a party. (Gov. Code, § 12512.) In the course of discharging this duty he is often called upon to make legal determinations both in his capacity as a representative of the public interest and as statutory counsel for the state or one of its agencies or officers. ..."
If it be assumed that the measure before this court does not meet the test of article II, section 8, subdivision (d), then not only should it not be submitted to the voters, but it shall not "have any effect." This provision does not say that the initiative shall have no effect only after judicial determination, but rather the Constitution renders such measure void, and not merely voidable. Of course, the Attorney General, in concluding that the section has no effect, proceeds at his risk that others, especially the judiciary, will disagree with him. However, such risk taking is inherent in every legal prognostication and marks the very process by which law is practiced in this country, whether by lawyer, trial court or intermediate courts of appeal. That such risks exist, perhaps, may encourage the Attorney General to seek refuge in the safe course of litigation as suggested by the majority, but such risk cannot make effective that which is ineffective. Defense of the Constitution has never been the preoccupation of the timid. This court cannot properly condemn the action of the Attorney General where, as here, it refuses to determine the correctness of his decision.
The characterization of the office of the Attorney General by such terms as "ministerial officer" is not a proper substitute for analysis or understanding of that office, nor is that characterization correct. It is true that Warner v. Kenny (1946) 27 Cal. 2d 627, 630-631 [165 P.2d 889], with respect to the case before it used this unfortunate expression, but in that case, the Attorney General refused to issue a summary and title on the ground that the measure was substantially the same as a measure which had been duly titled and summarized earlier but which failed to qualify for the ballot within the time allowed by law. No basis could be found in law for the Attorney General's refusal. Accordingly, this court stated: "[n]o showing has been made to justify his refusal to prepare a title and summary for the proposed measure, and since it is in proper form and was submitted to him in accordance with the constitutional and statutory requirements as to procedure, petitioners are entitled to have furnished to them a title and summary thereof." (Id., at p. 631.) Unlike Warner, by demonstrating that the measure was not in proper form and that it violated article II, section 8, subdivision (d) of the Constitution, the Attorney General made such a showing as to justify his refusal to prepare a title and summary. Obviously, where the Attorney General has no legal basis to refuse to title and summarize a measure his role is [21 Cal. 3d 96] ministerial, but where he has a legal basis to refuse to act, this court cannot ignore its responsibility to decide the issue by simply uttering "ministerial duty."
Moreover, this case may well return to haunt the constitutional jurisprudence of this state as a result of the majority's holding that a "ministerial officer" must perform an unconstitutional act. I know of no rule of law which excepts a "ministerial officer" from the operation of the Constitution until his decision receives this court's imprimatur that the Constitution applies to his duty. Indeed, a classic means for a public officer to test the constitutionality of a statute is to threaten to disobey it (e.g., California Educational Facilities Authority v. Priest (1974) 12 Cal. 3d 593 [116 Cal. Rptr. 361, 526 P.2d 513]). The majority turns its back on this valid test.
Here the Attorney General refused to act, petitioner seeks relief, the issue is joined and the petition has not been circulated. There is no reason why this court should not now speak on the issue of the validity of the measure. This is not a case where a sizeable body of the electorate have signed the petition. At this point this is simply a lawsuit between the Attorney General and petitioner. Thus, cases expressing our reluctance to become involved in the initiative process are not relevant. (Mulkey v. Reitman (1966) 64 Cal. 2d 529, 535 [50 Cal. Rptr. 881, 413 P.2d 825]; Kevelin v. Jordan (1964) 62 Cal. 2d 82 [41 Cal. Rptr. 169, 396 P.2d 585]; and Wind v. Hite (1962) 58 Cal. 2d 415, 417 [24 Cal. Rptr. 683, 374 P.2d 643]; but see McFadden v. Jordan (1948) 32 Cal. 2d 330 [196 P.2d 787].) This case involves not the substantive validity of the measure, but rather the question whether the measure, failing to meet the procedural requirements of the Constitution ought to be processed at all.
Notwithstanding that the Attorney General has the power to decide the procedural sufficiency of a proposed initiative, the measure is defective as it contains more than one subject. The contested proposal includes provisions on teacher strikes, campaign contributions from [21 Cal. 3d 97] teacher organizations, and the use of tax revenues to support the use of busing to achieve racial balance in public schools. It presents a classic example of the very evils that the one subject limitation was designed to prevent, that is, the dangers of confusing or misleading voters and of subverting the will of the majority. In order to satisfy the one subject limitation, an initiative's provisions must be functionally related in furtherance of a common underlying purpose. The proposed initiative fails to satisfy this requirement. Accordingly, it was properly within the Attorney General's discretion to refuse to prepare a title and summary of the initiative.
Article II, section 8, subdivision (d), provides that "an initiative measure embracing more than one subject may not be submitted to the electors or have any effect." fn. 1 In order to interpret this provision we first consider the intent behind the amendment as reflected in the ballot arguments presented in the official voter's pamphlet for the 1948 election and in relevant case law. fn. 2 Secondly, we must compare the limitation on initiative measures with a similar limitation on legislative enactments. As we shall see, the initiative limitation was intended to be a stricter limitation than the legislative limitation.
It is clear, then, that this limitation was intended to protect voters from misleading and confusing initiatives as well as to guarantee that each subject would receive proper and independent voter consideration. These concerns indicate that the one subject provision was intended to function as substantive limitation on the scope of initiatives. Further, as the amendment history indicates, the initiative provision was intended to be more narrowly applied than the similar limitation on legislative measures.
It is because of the voters' lesser ability to scrutinize a proposal and their total inability to propose modifications, that the multisubject initiative presents greater dangers than a similar multisubject legislative bill.
This greater danger of confusion, deception and vote amalgamation compels a more restrictive interpretation of the limitation on initiatives than the limitation on legislative bills. Accordingly, to satisfy the one-subject requirement, an initiative's provisions must be functionally related in furtherance of a common underlying purpose. This standard, although stricter than the legislative limitation, still permits complex but focused initiatives. What this standard does not permit, however, is the amalgamation of unrelated provisions that could mislead the voters or result in the frustration of the will of the majority of voters as may the present measure.
Indeed, the dangers that inspired the passage of the one-subject initiative limitation are especially manifest in the proposed initiative before us. This proposed initiative would amend the California Constitution to (1) make it unlawful for any teacher to strike, mandating the dismissal and suspension of the credential of a striking teacher; (2) prohibit campaign contributions by any teachers' organization; and (3) prohibit the use of tax revenues to provide transportation for the purpose of racially balancing public schools.
This proposed measure involves three different and unrelated subjects, labor relations, campaign contributions, and integration, fn. 6 affecting the rights of different classes of people. fn. 7 Each of the provisions in the proposed initiative concerns a distinct, controversial, and highly emotional subject. A voter with strong feelings about any one of these matters would not be likely to assess the other provisions independently. Intentionally or innocently, the initiative would tend to cause the amalgamation of the votes of separate minorities in favor of separate provisions to achieve the measure's enactment.
Nor are the proposed initiative's provisions a "general scheme" or in furtherance of a common practice which might ameliorate the measure's [21 Cal. 3d 101] danger. Petitioner claims that the initiative deals with the single subject of "educational reform" with the purpose of eliminating the "political influence that has crept into the educational system." fn. 8 If the broad umbrella of "educational reform" can embrace such diverse and unrelated subjects as are present here, then the one-subject limitation becomes meaningless. Another proponent could just as legitimately and persuasively argue that a welter of unrelated proposals relate to the single subject of "governmental" reform.
The dangers of confusing or misleading voters are manifest in this type of initiative, fn. 9 and it was this type of abuse that the one-subject restriction was adopted to eliminate.
Accordingly, the Attorney General correctly determined that the initiative violated the one-subject limitation of article II, section 8, subdivision (d), and because the Attorney General has the power to assess the validity of the proposed initiative and did not abuse his discretion in that determination, the petition for writ of mandate should be denied.
FN 1. The provision was initially proposed as an assembly constitutional amendment and adopted by the voters as article IV, section 1c, in the general election of November 2, 1948. In 1966 the section was renumbered article IV, section 22. In 1976, it was renumbered to its present designation as article II, section 8, subdivision (d).
FN 2. Initiative ballot arguments are the functional equivalent of the legislative history of a statute passed by the Legislature (People v. Knowles (1950) 35 Cal. 2d 175, 182 [217 P.2d 1] (cert. den., 340 U.S. 879 [95 L. Ed. 639, 71 S.Ct. 117]); Carter v. Seaboard Finance Co. (1949) 33 Cal. 2d 564, 580-581 [203 P.2d 758]).
FN 5. Although the court in Perry v. Jordan (1949) 34 Cal. 2d 87, 93 [207 P.2d 47], suggested that the legislative and initiative limitations could be construed similarly, the court was not required to go that far. The initiative measure under scrutiny in that case was a repealer measure designed to repeal an initiative adopted the previous year concerning old age pension plans. By any reasonable standard of review, the repealer measure included only one subject; hence the case is not controlling.
FN 6. One would normally expect statutes covering these subjects to be placed in entirely different codes.
FN 7. The initiative affects the rights of teachers as employees as well as part of the electorate. The anti-busing provision affects the rights of all people, and specifically of students, to a racially integrated public school system.
FN 8. The provisions of the initiative do not even further the purpose of "eliminating political influence." It is difficult to see how prohibiting government financing of busing or banning political contributions to candidates for offices that have nothing to do with education will eliminate political influence. Similarly, unless one takes an extremely broad view of what constitutes "political influence," it is difficult to see how barring teachers from striking will eliminate political influence. None of the provisions are even directly related to "education" as that word is commonly used.
FN 9. Even if the proposed initiative were judged by the more liberal "reasonably germane" test used for legislative enactments, it is of doubtful constitutionality. Even the legislative standard requires the provisions of an enactment to be so interrelated as to constitute a "general scheme." The proposed initiative, however, does not present any sort of scheme; rather it presents three discrete, unrelated subjects. Neither are the provisions reasonably germane to any common purpose.


also known as Jacob Brock, Defendant-Appellant.
Nathan Lewin, Washington, D.C. (Edith R. Lampson, Miller, Cassidy, Larroca & Lewin, Washington, D.C., of counsel), for defendant-appellant.
Kerry A. Lawrence, Asst. U.S. Atty. for the Southern District of New York, New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Daniel C. Richman, Asst. U.S. Atty., New York City, of counsel), for appellee.
Before VAN GRAAFEILAND, WINTER and WALKER, Circuit Judges.
Jacob Brach appeals from a judgment of the United States District Court for the Southern District of New York (Broderick, J.) that followed his guilty plea to a charge of wire fraud, 18 U.S.C. § 1343. Brach challenges various determinations made by the district court in arriving at his Guidelines sentence. We affirm.
In early 1989, after a major employer in Randolph, Wisconsin, left the area, Brach entered into negotiations with representatives of Randolph to move a knitting mill there from Brooklyn, New York. During the negotiations, Brach requested a $250,000 loan from Randolph as a "financial incentive." Randolph officials were agreeable but first requested a personal financial statement from Brach, who had misrepresented that he was a primary owner of the mill. After receiving a statement that falsely reported a net worth of $4,349,135, Randolph made the loan.
Thereafter, Village officials learned that several of Brach's checks to local contractors had bounced and that he was suspected of defrauding two Canadian companies. Becoming concerned, they requested the return of the $250,000. Brach sent a check in that amount, writing on it that it could be deposited only after his agreement to lease the proposed mill building was cancelled. The Village sent him the release he requested and, apparently alerted by the history of bouncing checks, gave him two days in which to remit the $250,000 by wire. Upon his failure to do so, the Village contacted the FBI, which filed a criminal complaint against Brach two days later. Brach then repaid the $250,000. He thereafter waived grand jury indictment and was charged by a felony information.
The complaint against Brach alleged crimes involving two Canadian companies as well as Randolph. It detailed activities by which Brach obtained $198,259 from Union Carbide of Canada and $125,000 from Lecofilms, a division of Tecsyn Canada, Ltd., through a scheme in which Brach fraudulently represented that he had exclusive patent rights to a toilet seat with a self-replacing plastic film. Pursuant to a plea agreement, Brach pled guilty to wire fraud in connection with the Randolph scheme and agreed to repay the Canadian companies the amounts he had received from them. The Government in turn agreed not to prosecute Brach further for the crimes alleged in the complaint.
In arriving at Brach's sentence, the district court started with the Sentencing Guidelines' base level for Fraud and Deceit of six (§ 2F1.1(a)), added eight points because the loss involved was greater than $200,000 (§ 2F1.1(b)), added two more because the offense involved more than minimal planning (§ 2F1.1(b)(2)(A)), and two more because Brach attempted to obstruct the administration of justice (§ 3C1.1). The court then reduced the total of these calculations by two points because of Brach's acceptance of responsibility (§ 3E1.1(a)). The total offense level of sixteen thus arrived at calls for an imprisonment range of twenty-one to twenty-seven months. The district court sentenced Brach to twenty-seven months' imprisonment and a three-year term of supervised release and imposed a fine of $10,000.
Brach challenges these adjustments on several grounds. He contends at the outset that the district court erred in basing the "loss" on the face value of the loan rather than on the value of the temporary use of the $250,000. We disagree. Application Note 7 under section 2F1.1 refers to the commentaries under section 2B1.1 for a discussion of loss valuation. Section 2B1.1 deals with Larceny, Embezzlement, and Other Forms of Theft. Application Note 2 under section 2B1.1 defines "loss" as "the value of the property taken." Application Note 7 under section 2F1.1 states that, "if a probable or intended loss that the defendant was attempting to inflict can be determined, that figure would be used if it was larger than the actual loss."
In cases involving embezzlement or theft, we have interpreted Application Note 2 literally and affirmed sentencing adjustments based on the value of what was taken, not on the ultimate harm suffered by the victim. See United States v. Cea, 925 F.2d 56, 57 (2d Cir.1991); United States v. Parker, 903 F.2d 91, 104-05 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). We see no reason to follow a different course where, as in the instant case, the loss was caused by fraud and deceit.
Brach's contention that he intended to repay the loan, assuming it to be true, does not change the picture. Brach's crime was complete once he transmitted the false financial statement and obtained the loan. Thereafter, he wrongfully was in possession of $250,000. Under the Guidelines, "loss" includes the value of all property taken, even though all or part of it was returned. United States v. Cockerham, 919 F.2d 286, 289 (5th Cir.1990); United States v. Johnson, 908 F.2d 396, 398 (8th Cir.1990). It is not restricted to the harm that a defendant intended to inflict but instead may consist of the "probable" loss resulting from the fraud. United States v. Haddon, 927 F.2d 942, 951-52 (7th Cir.1991); United States v. Davis, 922 F.2d 1385, 1392-93 (9th Cir.1991). For sentencing purposes, it is enough to recognize that Brach put Randolph at risk for the full amount of $250,000. The district court correctly determined the loss to be $250,000.
Brach's challenge to the district court's minimal planning adjustment is two-pronged. He first contends generally that the district court violated Fed.R.Crim.P. 32(c)(3)(D) by failing to make any findings concerning Brach's activities with the two Canadian companies after Brach contested allegations in the presentence report that he was defrauding those companies. He then makes the specific contention that the district court violated section 1B1.3(a)(1) by considering his Canadian activities in arriving at the adjustment for more than minimal planning.
I have considered the activities with respect to the other entities, Union Carbide and Leco Films [sic] in picking a point within the guideline range. Those activities have indicated to me, up to this point, Mr. Brach, you have been engaged in a way of life which involves deceiving and defrauding people on quite a sophisticated level, and in my judgment it is quite appropriate to consider those matters in that wise.
[i]n determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has "sufficient indicia of reliability to support its probable accuracy." United States v. Marshall, 519 F.Supp. 751 (D.C.Wis.1981), aff'd, 719 F.2d 887 (7th Cir.1983); United States v. Fatico, 579 F.2d 707 (2d Cir.1978).
In sum, a "sentencing court's discretion is 'largely unlimited either as to the kind of information he may consider, or the source from which it may come.' " United States v. Carmona, 873 F.2d 569, 574 (2d Cir.1989) (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972)).
The district court was not precluded from referring to the presentence report by the fact that much of the information contained therein came from the complaint. The complaint, sworn to by FBI Special Agent Carl Amaditz, was based on a review of bank records as well as interviews that Agent Amaditz and other federal agents conducted with employees of Union Carbide, Lecofilms, and the president of Sani-Tech Metro, the true holder of the patent and trademark rights to the sanitary toilet seat mechanism. Moreover, the Government elicited substantial corroborating testimony during the sentencing hearing from Robert Flemming of the Wisconsin Department of Development and Albert Owen Thornburgh, Chairman of Randolph's Executive and Finance Committees. Both Flemming and Thornburgh testified that Brach had held himself out as the owner of a company that sold toilet seats with a plastic covering that was replaced automatically and that Brach had shown them a videotape of the toilet seat's operation. The complaint and testimony bore "sufficient indicia of reliability to support [their] probable accuracy" and provided the district court with ample basis to consider evidence of Brach's Canadian activities as it bore on his "background, character and conduct."
In making its more-than-minimal-planning adjustment the district court referred to Brach's activities relating to Union Carbide. However, we are satisfied that the court did so to illustrate Brach's penchant for developing "elaborate" schemes that are "drenched in fraud." The district court did not suggest that Brach's Canadian activities per se played any part in his scheme to defraud the Village of Randolph. To be sure, there was some overlap in the nature of the two schemes. Mr. Thornburgh testified that his first contact with Brach was in connection with the toilet seat mechanism that was the subject of Brach's fraudulent Canadian machinations, and the Village Board was shown the videotape that undoubtedly played a large role in the duping of the Canadian firms. Other than that, there is nothing to indicate that the district court considered Brach's Canadian activities as part of the planning for the commission of his offense against the Village of Randolph.
Although in calculating a defendant's offense level a sentencing court may consider only activities relating to the offense for which the guilty plea is entered, the record reflects that Brach engaged in more than minimal planning to commit the crime to which he pled guilty. Concocting a scheme to move a business that one does not own is not a simple thing to do, particularly when it involves securing a quarter-of-a-million dollar advance from the subject of the fraud. The money that Brach received from Randolph was preceded by extensive negotiations and travel by both Randolph representatives and Brach that extended over many months. It was based upon a false financial statement that was anything but a simple planning device. Indeed, it is safe to say that fraudulent loans in any substantial amount seldom result from minimal planning. See United States v. Fox, 889 F.2d 357, 361 (1st Cir.1989). The district court did not err in adjusting Brach's offense level for "more than minimal planning."
We have reviewed de novo Brach's argument that the district court erred in enhancing his offense level two points for obstruction of justice under Guidelines section 3C1.1, see United States v. Bonds, 933 F.2d 152, 154 (2d Cir.1991), and we reject it. The district judge concluded, based on his review of tapes of telephone conversations between Brach and the Randolph Mayor, that Brach had attempted to intimidate the Mayor into signing a letter to be used at sentencing which would state that the Village's loan to Brach had been approved twice before the Village requested any financial information from him. Not only does this proposed statement violate common sense, it is contrary to the district court's finding that the Village officials "expect[ed] financial statements almost as a matter of course." We too have reviewed the transcripts of those telephone conversations, and we find no error in the district court's holding that Brach's conduct constituted an obstruction of justice.
Brach's final argument, based on Application Note 10 of Guidelines section 2F1.1, that the district court should have made a downward departure because the amount of the loan "overstate[d] its seriousness" is without merit. A district court's refusal to depart downward is not appealable unless the refusal was based on the court's mistaken belief that it did not have the discretion to do so. United States v. Prescott, 920 F.2d 139, 145-46 (2d Cir.1990). Brach's assertion that Note 10 "requires" a reduction in the amount of actual loss if the accused intends to repay is a misreading of the Note, which provides that in some instances a downward departure "may" be warranted.
In sum, we have considered all of Brach's arguments and find them without merit. The judgment of the district court is affirmed.