These rules govern proceedings in the courts of the State of Nebraska, to the extent and with the exceptions stated in § 27-1101.
§ 27-801. Rule 801. Definitions.
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, of (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
(22) A statement not specifically covered by any of the foregoing exceptions, but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (a) the statement is offered as evidence of a material fact, (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and. (c) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
(e) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness. if the court determines that (i) the statement is offered as evidence of a material fact, (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
(1) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
0) Any method of authentication or identification provided by act of the Legislature or by other rules adopted by the Supreme Court which are not in conflict with laws governing such matters.
(10) Any signature, document, or other matter declared by Act of Congress and the laws of the State of Nebraska to be presumptively or prima facie genuine or authentic.
(4) A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress or of the Legislature of the State of Nebraska or by other rules adopted by the Supreme Court of Nebraska.
(4) The writing, recording. or photograph is not closely related to a controlling issue.
The contents of an official record. or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form. if otherwise admissible. may be proved by copy, certified as correct in accordance with ~ 27-902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The judge may order that they be produced in court.
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original.
If any business, institution, member of a profession or calling, or department or agency of government in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof of any act, transaction, occurrence, or event and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, optical imagery, microfilm, microcard, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity or unless its preservation is required by law and, with respect to agencies or departments of government, if the State Records Administrator approves such destruction. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original.
No title insurance policy shall be written unless and until the title insurer has caused to be conducted a reasonable examination of the title and has caused to be made a determination of insurability of title in accordance with sound underwriting practices for title insurers. Evidence thereof shall be preserved and retained in the files of the title insurer or its title insurance agent for a period of not less than fifteen years after the title insurance policy has been issued. In lieu of retaining the original copy, the title insurer or the title insurance agent may in the regular course of business establish a system whereby all or part of these writings are recorded. copied, or reproduced by any photographic. photostatic. microfilm. microcard. miniature photographic, or other process which accurately reproduces or forms a durable medium for reproducing the original. This section shall not apply to (I) an insurer assuming no primary liability in a contract of reinsurance or (2) an insurer acting as a coinsurer if one of the other coinsuring insurers has complied with this section.
The recording of all instruments by the roll form of microfilm may be substituted for the method of recording instruments in books, and the filing of all documents by the roll form of microfilm may be substituted for the method of filing original documents. If this method of recording instruments on microfilm or filing documents on microfilm is used, the original Instruments so recorded and the original documents so filed need not be retained after the microfilm has been verified for accuracy and quality, and a security copy on silver negative microfilm in roll form must be maintained and filed off premises under safe conditions to insure the protection of the records and shall meet the microfilm standards as prescribed by the State Records Administrator as provided in §§ 84-1201 to 84-1220. The fee books shall provide the proper index information as to the microfilm roll and numerical sequence of all such recorded instruments and of all such filed documents. The internal reference copies or work copies of the instruments recorded on microfilm and of documents filed on microfilm may be in any photographic form to provide the necessary information as may be determined by the official in charge.
In all cases in which any instrument or document is required by law to be copied or recorded in any public record in any public office within the State of Nebraska, the officials having charge of the making of such records may employ the use of photographic processes for the reproduction of such instrument or document. This shall be done for the public records and shall be a true copy of the original instrument or document to be so recorded, and may likewise use any such photographic process for the making of certified copies of such public records: Provided, no such photographic processes shall be used for the making of permanent records until it shall have been demonstrated to the satisfaction of the officials having charge of such records and the State Records Administrator, that the processes to be used will produce an accurate and permanent record of the instrument or document to be recorded. Any such existing records when reproduced by such photographic processes may be destroyed by the official having charge of the same when approval is given by the State Records Administrator.
The clerk of the district court shall keep records to be called the appearance docket, the trial docket, the journal, the complete record, the execution docket, the fee book, the general index, and the judgment record. Such records may be compiled, filed, and maintained on a computer system. Effective not later than October 1, 1992. provision for dockets and records of the district courts shall be established by rule of the Supreme Court. The journal and complete record may be compiled and filed on microfilm. The recording of all instruments by the roll form of microfilm may be substituted for the method of recording instruments in books. If this method of recording instruments on microfilm is used, a security copy on silver negative microfilm in roll form must be maintained and filed off premises under safe conditions to insure the protection of the records. The internal reference copies or work copies of the instruments recorded on microfilm ma" be in any photographic form to provide the necessary information as may be determined by the official in charge. and shall meet the microfilm standards as prescribed by the State Records Administrator.
(1) That programs for the systematic and centrally correlated management of state and local records will promote efficiency and economy in the day-to-day record-keeping activities of state and local governments, and will facilitate and expedite governmental operations.
(2) That records containing information essential to the operations of government, and to the protection of the rights and interests of persons, must be safeguarded against the destructive effects of all forms of disaster and must be available as needed; wherefore it is necessary to adopt special provisions for the selection and preservation of essential state and local records, thereby insuring the protection and availability of such information.
(11) Disaster shall mean any occurrence of fire, flood, storm, earthquake, explosion, epidemic. riot, sabotage, or other conditions of extreme peril resulting in substantial injury or damage to persons or property within this state, whether such occurrence is caused by an act of nature or of man, including an enemy of the United States.
A State Records Board, hereinafter called the board, is hereby established to advise and assist the administrator in the performance of the duties enjoined upon him or her by the Records Management Act and to perform such other functions and duties as the act requires. In addition to the administrator, the board shall consist of the Governor, the Attorney General, the Auditor of Public Accounts, the Chief Justice, the Clerk of the Legislature, the Director of Administrative Services, the Director of the Nebraska State Historical Society, the State Archivist, and the director of the records management program, who shall be appointed by the administrator with the approval of the board, or their personally designated representatives. The administrator or his or her representative shall be chairperson of the board, and the director of the records management program shall be its secretary. Upon call by the administrator, the board shall convene periodically in accordance with its rules and regulations or upon call by the administrator or his or her personally designated representative.
(d) Obtain from the agencies concerned such reports and other data as are required for the proper administration of the records management program including organizational charts of agencies concerned.
(2) The administrator shall establish standards for designating essential records, shall assist agencies in identifying essential records, and shall guide them in the establishment of programs for the preservation of essential records.
(3) The administrator may advise and assist members of the Legislature and other officials in the maintenance and disposition of their personal or political papers of public interest and may provide such other services as are available to state and local agencies, within the limitation of available funds.
(5) Comply with the rules, regulations, standards and procedures issued and set up by the administrator and the board, and cooperate in the conduct of surveys made by the administrator pursuant to §§ 84-1201 to 84-1226.
In addition to the duties enumerated in ~ 84-1207, each state agency head shall designate a records officer from the management or professional level who shall be responsible for the overall coordination of records management activities within the agency.
(1) The administrator may make or cause to be made preservation duplicates of essential records or may designate as preservation duplicates existing copies thereof. A preservation duplicate shall be durable, accurate, complete. and clear and, if made by means of photography, microphotography, photocopying, film, microfilm, optical imagery, or similar processes, shall be prepared in conformity to standards prescribed and approved by the board.
(2) A preservation duplicate made by a photographic, photostatic, microfilm, microcard, miniature photographic, optical imagery, or similar process which accurately reproduces or forms a durable medium for so reproducing the original shall have the same force and effect for all purposes as the original record, whether the original is in existence or not. A transcript, exemplification, or certified copy of such preservation duplicate shall for all purposes be deemed a transcript, exemplification, or certified copy of the original record.
(3) No copy of an essential record shall be used as a preservation duplicate unless, under the general laws of the state, the copy has the same force and effect for all purposes as the original record.
The administrator may establish storage facilities for essential records, preservation duplicates and other state records and may provide for a system of charges to allocate the cost of providing such storage among the agencies and departments utilizing the storage services. The system of charges shall, as nearly as may be practical, cover the actual costs of operating the storage facilities.
(1) The administrator shall properly maintain essential records and preservation duplicates stored by him.
(2) An essential record or preservation duplicate stored by the administrator may be removed by the regularly designated custodian for temporary use when necessary for the proper conduct of his office, and shall be returned to the administrator immediately after such use.
(3) When an essential record is stored by him, the administrator, upon the request of the regularly designated custodian thereof, shall provide for its inspection or for the making or certification of copies thereof, and such copies, when certified by the administrator, shall have the same force and effect for all purposes as if certified by the regularly designated custodian.
(1) When an essential record is required by law to be treated in a confidential manner, the administrator, in effectuating the purposes of §§ 841201 to 84-1226, shall protect its confidential nature, as well as that of any preservation duplicate or other copy thereof. Any hospital or medical record submitted to the administrator for microfilming or similar processing shall be made accessible in a manner consistent with the access permitted similar records under § 83-109 and § 83-1068.
(2) Nothing in the Records Management Act shall be construed to affect the laws and regulations dealing with the dissemination, security, and privacy of criminal history information under Chapter 29, article 35.
The administrator shall review periodically, and at least once each year, the program for the selection and preservation of essential records, including the classification thereof and the provisions for preservation duplicates and for the safeguarding of essential records and preservation duplicates to insure that the purposes of §§ 84-1201 to 84-1226 are accomplished.
All records made or received by or under the authority of, or coming into the custody, control, or possession of agencies in any of the three branches of the state government, or of any local political subdivision, in the course of their public duties. are the property of the government concerned, and shall not be mutilated, destroyed, transferred, removed, damaged, or otherwise disposed of, in whole or in part, except as provided by law. Any person who shall willfully mutilate, destroy, transfer, remove, damage, or otherwise dispose of such records or any part of such records. except as provided by law, and any person who shall retain and continue to hold the possession of any such records, or parts thereof, belonging to the state government or to any local political subdivision, and shall refuse to deliver up such records, or parts thereof. to the proper official under whose authority such records belong, upon demand being made by such officer or, in cases of a defunct office, to the succeeding agency or to the state archives of the Nebraska State Historical Society, shall be guilty of a Class III misdemeanor.
The State Records Administrator, or any official under whose authority such records belong, shall report to the proper county attorney any supposed violation of § 84-12 13 that in its judgment warrants prosecution. It shall be the duty of the several county attorneys to investigate supposed violations of such section and to prosecute violations of such section.
Whenever any agency desires to dispose of records which are not listed on an approved records retention and disposition schedule applicable to that agency. the agency head shall prepare and submit to the administrator, on forms provided by the administrator, a list of the records sought to be disposed of, and a request for approval of their disposition. which list and request shall be referred to the board for action at its next regular or special session. On consideration thereof, the board may approve such disposition thereof as may be legal and proper, or may refuse to approve any disposition, and the records as to which such determination has been made may thereupon be disposed of in accordance with the approval of the board.
(1) If not otherwise prohibited by law, nonrecord materials, not included within the definition of records as contained in § 84-1202, may be destroyed at any time by the agency in possession thereof, without the prior approval of the administrator or board. The administrator may formulate procedures and interpretations to guide in the disposal of nonrecord materials, but nothing therein shall be contrary to any provision of law relating to the transfer of materials of historical value to the state archives of the Nebraska State Historical Society.
(2) Members of the Legislature and other officials are encouraged to offer their personal and political papers of public interest to the state archives for preservation subject to any reasonable restrictions concerning their use by other persons.
* The administrator shall promulgate such rules and regulations as may be necessary or proper to effectuate the purposes of §§ 84-1201 to 84-1226. Those portions thereof which relate to functions specifically delegated to the board shall be approved and concurred in by the board.
All provisions of the Records Management Act shall apply to all agencies as defined in subdivision (1) of §84-1202 and the administrator shall advise and assist in the establishment of programs for records management and for the selection and preservation of essential records of such branches, and, as required by such branches, shall provide program services pursuant to the provisions of §§ 84-1201 to 84-1226.
The governing bodies of all local political subdivisions in this state, with the advice and assistance of the administrator and pursuant to the rules and regulations established by him, shall establish and maintain continuing programs to promote the principles of efficient records management for local records, and for the selection and preservation of essential local records, which programs, insofar as practicable, shall follow the patterns of the programs established for state records as provided in §§ 84-1201 to 84-1226. Each such governing body shall promulgate such rules and regulations as are necessary or proper to effectuate and implement the programs so established, but nothing therein shall be in violation of the provisions of general law relating to the destruction of local records.
The administrator shall prepare a biennial report on the status of programs established by him as provided in §§ 84-1201 to 84-1226, and on the progress made during the preceding biennium in implementing and effectuating such programs. Copies of this report shall be furnished the Governor, the Speaker of the Legislature, and such other officials and agencies as the Governor or the board shall direct.
§ § 84-1201 to 84-126 shall be known and may be cited as the Records Management Act.
After May 18. 1977. no state agency shall purchase any microfilm system or equipment prior to the approval of the State Records Administrator. The administrator shall not approve internal microfilm activities of any state agency unless such activities may not be feasibly provided by the central microfilming agency and are necessary to a particular operation within the state agency. Any equipment purchased under this section shall become the property of the State Records Administrator and shall be subject to the provisions of § 84-1223.
On May 19. 1979. all micrographic production. processing, and viewing equipment currently owned or subsequently acquired under the provisions of § 84- 1222 by any state executive, judicial, or legislative agency, except the University of Nebraska or the state colleges, shall become the property of the State Records Administrator, regardless of the fund source from which the equipment was originally purchased. Appropriate credit. against future charges. shall be given to all agencies for the fair market value of all equipment accepted which had been purchased with federal funds or trust funds. Equipment purchased with funds from the Highway Cash Fund shall not be deemed to have been purchased with federal funds or trust funds.
(4) After July 1, 1978, be empowered to determine the operating locations of all micrographic equipment in his possession.
The State Records Administrator shall provide for a system of .charges for micropublishing services and computer output microfilm services rendered by the central microfilming agency to any other department or agency of the state when these charges are allocable to a particular project carried on by such microfilming agency. Such charges shall, as nearly as may be practical, reflect the actual cost of services provided by the central microfilming agency. On July 1, 1978, and thereafter the State Records Administrator shall extend this system of charges to include source document microfilming. The State Records Administrator shall extend this system of charges and user fees for all micrographic equipment which is the property of the administrator and which is used by any other state agency or department.
(1) There is hereby created a fund to be known as the Records Management Micrographics Services Revolving Fund. All charges received by the Secretary of State under §§ 84-1209 and 84-1225 and legislative appropriations shall be credited to such fund. Whenever any micrographics equipment of any state agency, except the University of Nebraska or the state colleges, shall become surplus property and shall be sold pursuant to § 81-161.04. the proceeds from the sale of such equipment shall be deposited in the state treasury and shall be credited by the State Treasurer to the Records Management Micrographics Services Revolving Fund. Expenditures shall be made from such fund to finance the micropublishing services and the computer output microfilm services by the Secretary of State or his or her authorized agent in accordance with appropriations made by the Legislature, to receive and expend funds pursuant to § 84-1209 for the providing of records storage services for state agencies. (2) By agreement between any state agency and the State Records Administrator, any state agency may be billed one full year's rental for equipment at the beginning of each fiscal year. The State Records Administrator may coordinate with the Director of Administrative Services to set up a separate subaccount within the fund for the purpose of accounting for micrographic equipment procurement and replacement.


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Table 1. Comparison between Aedes aegypti and Aedes albopictus.
Table 2. Experimental drugs for the treatment of CHIKV disease.
Chikungunya is an arthropod-borne virus transmitted by Aedes mosquito bites. A viral mutation has allowed Aedes albopictus to become the preferred vector extending the geographic spread of the condition. The virus causes an acute febrile illness occasionally followed by a chronic rheumatic condition causing severe impairment. The diagnosis is usually confirmed with serology. No specific treatment is currently available. This article reviews the condition with emphasis on his dissemination in the Americas.
Chikungunya virus has disseminated widely and autochthonous cases have already been reported in the Americas. Although the disease tends to be self-limited, a crippling chronic condition with severe joint compromise can affect patients for weeks to months. Health practitioners need to be acquainted with the manifestations, diagnostic methods and treatment options for this formerly “exotic” condition.
CHIKV persists in nature using two cycles: a sylvatic cycle affecting primates and mosquitoes and an urban cycle affecting humans and mosquitoes (Fig. 1).
Life cycle of the Chikungunya virus.
Although there is an ample range of Aedes species that transmit the disease in Africa5; in Asia and in the Indian Ocean the main vectors of CHIKV are Aedes aegypti and Aedes albopictus. A. albopictus has a wider geographical distribution, and can survive in both rural and urban environments. Mosquito eggs are quite resistant to dry seasons. A. albopictus also has a relatively long life, lasting 4–8 weeks and has a flying range of 400–600m.6 All these capabilities have allowed A. albopictus to become an important vector not only of CHIKV, but also of dengue and other arbovirosis. A comparison between A. aegypti and A. albopictus is presented in Table 1.
Comparison between Aedes aegypti and Aedes albopictus.
In Brazil, an extensive DDT campaign eradicated A. aegypti from the country in the 1940–50s, however the vector was reintroduced in 1970 and become widespread again. Since 1986 it has been considered endemic in several major Brazilian cities. A. albopictus invaded Brazil in the 1980s and a recent survey has detected it in at least 59% of the Brazilian municipalities and in 24 of the 27 federal units7,8A. aegypti affects predominantly tropical areas of Brazil (North, North-East and Central regions) and is more widespread, whereas A. albopictus is more common in the cooler Southern areas of the country. Both vectors combined put 99% of the population of Brazil at risk of acquiring CHIKV.9Fig. 2 shows the geographic distribution of Chikungunya virus in the Americas.
Chikungunya in the Americas. In red: countries with endemic transmission with more than 1000 cases reported. In orange: Countries with endemic transmission with more than 1000 cases reported. In blue: Countries or States with imported cases only. Without color: Countries or States with no transmission reported.
CHIKV is transmitted predominantly by female mosquito bites. Alternatively the disease can be transmitted vertically from mother to fetus or theoretically by blood transfusion (although no cases have been reported so far).
Hemorrhagic manifestations are rare; however gingivorrhagia, epistaxis, hematemesis and melena have been described in old case series.21 Abnormal bleeding, milder than the one seen in dengue fever, has a predilection for children.
In the other end of the spectrum, seropositive patients without clinical manifestations have also been identified.
Cases of dengue (including the hemorrhagic presentation) and CHIKV coinfection have been described (as they share the same vector) however no coinfection with yellow fever has been reported yet.
Like any other vector transmitted disease the propagation of CHIKV depends on characteristics of the vector, the host and the environment.
Currently there is no specific therapy approved for CHIKV disease. The only therapeutic option is symptomatic relief. Hydration and electrolyte balance should be optimized. Paracetamol 1g three to four times a day in adults; or 50–60mg per kg body weight per day in divided doses in children; is the treatment of choice for fever, headache and/or pain according to the World Health Organization.48 Other non-steroidal analgesics are also usually recommended for pain control; however aspirin should be avoided to prevent further platelet dysfunction. In crippling cases corticosteroid use has been advocated, although there is not enough scientific information to support their use.49 French investigators who have experienced the devastating outbreak in the Reunion Island advocate use of tumor necrosis alpha inhibitors for chronic cases that fulfill the criteria for rheumatoid arthritis or seronegative spondyloarthropathy, but no supportive evidence exists beyond expert advice.
Ribavirin is a purine nucleoside analog currently used in the treatment of hepatitis C. A small study that enrolled 10 patients using ribavirin 200mg orally twice a day for 7 days showed improvement in arthralgia and returned capacity to ambulate. Unfortunately the study used non-blinded comparators and it was too small to reveal meaningful results.50 In theory combined use of ribavirin and type I interferon alpha may show a synergistic effect.
Experimental drugs for the treatment of CHIKV disease.
Reduction of peridomiciliary water puddles and containers may prevent mosquito proliferation.
Travelers to endemic areas need to be educated about their risks, precautions and symptom recognition.
The OX513A strain of A. aegypti is composed by radiation sterilized male insects. A study of the release of these agents in a suburb of Juazeiro, Bahia, Brazil demonstrated a reduction of 95% of the local A. aegypti population in one year. The Sterile Insect Technique (SIT) is a genetic control system that seems promising as a mean of vector control.60 Its use, among public controversy, has been imitated in Key West, the most southern region of the United States.
There is no vaccine currently available to prevent CHIKV infection. An ideal vaccine, should be of low cost, highly stable (as it will be predominantly administered in developing countries), administered in a single injection and able to stimulate rapid protection.
In the last 2 years two vaccines have been tested in Phase 1 trials in humans: a live recombinant measles-virus-based chikungunya vaccine and a virus-like particle chikungunya virus vaccine (VRC-CHKVLP059-00-VP). Both of them were immunogenic, safe and well tolerated.62,63 More advanced phase II/III trials are hampered by the sporadic nature of the infection, which makes planning and approval of clinical trials quiet challenging.
A single vaccine has been tested in phase II trials. This was a serially passaged, plaque-purified live Chikungunya vaccine produced by the United States Army Medical Research Institute for Infectious Diseases (USAMRIID). The vaccine was injected subcutaneously and compared in a double-blinded randomized study with placebo. Ninety eight percent of recipients developed neutralizing antibodies (which persisted in 50% of cases for more than a year). The vaccine was safe and the only difference with placebo was more frequent arthalgia.64 Despite the promising results further clinical development was aborted in 2000 due to the lack of commercial interest.
A.H. Khan, K. Morita, C. Parquet Md Mdel, F. Hasebe, E.G. Mathenge, A. Igarashi.
Complete nucleotide sequence of chikungunya virus and evidence for an internal polyadenylation site.
F. Simon, H. Savini, P. Parola.
Chikungunya: a paradigm of emergence and globalization of vector-borne diseases.
A.M. Powers, A.C. Brault, R.B. Tesh, S.C. Weaver.
Re-emergence of Chikungunya and O’nyong-nyong viruses: evidence for distinct geographical lineages and distant evolutionary relationships.
M. Diallo, J. Thonnon, M. Traore-Lamizana, D. Fontenille.
Vectors of Chikungunya virus in Senegal: current data and transmission cycles.
C. Chevillon, L. Briant, F. Renaud, C. Devaux.
The Chikungunya threat: an ecological and evolutionary perspective.
R.G. Carvalho, R. Lourenço-de-Oliveira, I.A. Braga.
Updating the geographical distribution and frequency of Aedes albopictus in Brazil with remarks regarding its range in the Americas.
F.A. Monteiro, R. Schama, A.J. Martins, A. Gloria-Soria, J.E. Brown, J.R. Powell.
Genetic diversity of Brazilian Aedes aegypti: patterns following an eradication program.
M.R. Nunes, N.R. Faria, J.M. de Vasconcelos, et al.
Emergence and potential for spread of chikungunya virus in Brazil.
I. Schuffenecker, I. Iteman, A. Michault, et al.
M. Sourisseau, C. Schilte, N. Casartelli, et al.
Characterization of reemerging chikungunya virus.
Z. Her, B. Malleret, M. Chan, et al.
Active infection of human blood monocytes by Chikungunya virus triggers an innate immune response.
Biology and pathogenesis of chikungunya virus.
N. Wauquier, P. Becquart, D. Nkoghe, C. Padilla, A. Ndjoyi-Mbiguino, E.M. Leroy.
The acute phase of Chikungunya virus infection in humans is associated with strong innate immunity and T CD8 cell activation.
A. Chow, Z. Her, E.K. Ong, et al.
Persistent arthralgia induced by Chikungunya virus infection is associated with interleukin-6 and granulocyte macrophage colony-stimulating factor.
A. Mohan, D.H. Kiran, I.C. Manohar, D.P. Kumar.
Epidemiology, clinical manifestations, and diagnosis of Chikungunya fever: lessons learned from the re-emerging epidemic.
Mucocutaneous features of Chikungunya fever: a study from an outbreak in West Bengal, India.
Rampal, M. Sharda, H. Meena.
Neurological complications in Chikungunya fever.
P. Mahendradas, K. Avadhani, R. Shetty.
Chikungunya and the eye: a review.
J.K. Sarkar, S.N. Chatterjee, S.K. Chakravarti, A.C. Mitra.
Chikungunya virus infection with haemorrhagic manifestations.
X. Fritel, O. Rollot, P. Gerardin, Chikungunya-Mere-Enfant Team, et al.
Chikungunya virus infection during pregnancy, Reunion, France, 2006.
D. Ramful, S. Sampériz, X. Fritel, et al.
Antibody kinetics in infants exposed to Chikungunya virus infection during pregnancy reveals absence of congenital infection.
P. Gérardin, G. Barau, A. Michault, et al.
A. Chopra, V. Anuradha, V. Lagoo-Joshi, V. Kunjir, S. Salvi, M. Saluja.
Chikungunya virus aches and pains: an emerging challenge.
F. Simon, E. Javelle, M. Oliver, I. Leparc-Goffart, C. Marimoutou.
G. Borgherini, P. Poubeau, A. Jossaume, et al.
Persistent arthralgia associated with chikungunya virus: a study of 88 adult patients on reunion island.
S.D. Thiberville, V. Boisson, J. Gaudart, F. Simon, A. Flahault, X. de Lamballerie.
Chikungunya fever: a clinical and virological investigation of outpatients on Reunion Island, South-West Indian Ocean.
C. Schilte, F. Staikowsky, T. Couderc, et al.
P. Gérardin, A. Fianu, A. Michault, et al.
J.J. Hoarau, M.C. Jaffar Bandjee, P. Krejbich Trotot, et al.
Persistent chronic inflammation and infection by Chikungunya arthritogenic alphavirus in spite of a robust host immune response.
D. Mavalankar, P. Shastri, T. Bandyopadhyay, J. Parmar, K.V. Ramani.
Increased mortality rate associated with chikungunya epidemic, Ahmedabad, India.
An epidemic of virus disease in Southern Province, Tanganyika Territory, in 1952–53. I. Clinical features.
C. Bhagwati, M. Madhulika, K.D. Mehta, Y.S. Goswami.
Profile of the chikungunya infection: a neglected vector borne disease which is prevalent in The Rajkot District.
M.M. Thiboutot, S. Kannan, O.U. Kawalekar, et al.
Chikungunya: a potentially emerging epidemic?.
G. Rezza, L. Nicoletti, R. Angelini, CHIKV study group, et al.
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Notes from the field: chikungunya virus spreads in the Americas – Caribbean and South America, 2013–2014.
D. Ruiz-Moreno, I.S. Vargas, K.E. Olson, L.C. Harrington.
Modeling dynamic introduction of Chikungunya virus in the United States.
Chikungunya virus transmission found in the United States: US health authorities brace for wider spread.
Aedes albopictus in the United States: ten-year presence and public health implications.
K.A. Tsetsarkin, D.L. Vanlandingham, C.E. McGee, S. Higgs.
A single mutation in Chikungunya virus affects vector specificity and epidemic potential.
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Laboratory diagnosis of chikungunya virus: do we really need it?.
M. Panning, K. Grywna, M. van Esbroeck, P. Emmerich, C. Drosten.
Chikungunya fever in travelers returning to Europe from the Indian Ocean region, 2008.
B. Pastorino, M. Bessaud, M. Grandadam, S. Murri, H.J. Tolou, C.N. Peyrefitte.
Development of a TaqMan RT-PCR assay without RNA extraction step for the detection and quantification of African Chikungunya viruses.
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M.N. Pyndiah, V. Pursem, G. Meetoo, et al.
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Chikungunya fever in travelers: clinical presentation and course.
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Chikungunya virus: an update on antiviral development and challenges.
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Administration of E2 and NS1 siRNAs inhibit chikungunya virus replication in vitro and protects mice infected with the virus.
T. Couderc, N. Khandoudi, M. Grandadam, et al.
Prophylaxis and therapy for Chikungunya virus infection.
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Development of a highly protective combination monoclonal antibody therapy against Chikungunya virus.
A report of 21 cases of rheumatoid arthritis following Chikungunya fever. A mean follow-up of two years.
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Reflections on the emergence of chikungunya virus in the United States: time to revisit a successful paradigm for the safety of blood-derived therapies.
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Suppression of a field population of Aedes aegypti in Brazil by sustained release of transgenic male mosquitoes.
P.A. Rudd, A.P. Raphael, M. Yamada, et al.
Effective cutaneous vaccination using an inactivated chikungunya virus vaccine delivered by Foroderm.
K. Ramsauer, M. Schwameis, C. Firbas, et al.
L.J. Chang, K.A. Dowd, F.H. Mendoza, VRC 311 Study Team, et al.
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25-1123. Advance voting; transmission of ballots; duties of election officer. (a) When an application for an advance voting ballot has been filed in accordance with K.S.A. 25-1122, and amendments thereto, the county election officer shall transmit to the voter applying therefor one each of the appropriate ballots. Unless an advance voting ballot is transmitted in person pursuant to this subsection, the county election officer shall transmit the advance voting ballots to the voter at one of the following addresses as specified by the voter on such application: (1) The voter's residential address or mailing address as indicated on the registration list; (2) the voter's temporary residential address; or (3) a medical care facility as defined in K.S.A. 65-425, and amendments thereto, psychiatric hospital, hospice or adult care home where the voter resides. No advance voting ballot shall be transmitted by the county election officer by any means prior to the 20th day before the election for which an application for an advance voting ballot has been received by such county election officer. If the advance voting ballot is transmitted by mail, such ballot shall be transmitted with printed instructions prescribed by the secretary of state and a ballot envelope bearing upon the outside a printed form as described in K.S.A. 25-1120, and amendments thereto, and the same number as the number of the ballot. If the advance voting ballot is transmitted to the applicant in person in the office of the county election officer or at a satellite advance voting site, such advance voting ballot and printed instructions shall be transmitted in an advance voting ballot envelope bearing upon the outside a printed form as described in K.S.A. 25-1120, and amendments thereto, and the same number as the number of the ballot unless the voter elects to deposit the advance voting ballot into a locked ballot box without an envelope. All ballots shall be transmitted to the advance voting voter not more than 20 days before the election but within two business days of the receipt of such voter's application by the election officer or the commencement of such 20-day period. In primary elections required to be conducted on a partisan basis, the election officer shall deliver to such voter the ballot of the political party of the applicant.
(b) The restrictions in subsection (a) relating to where a county election officer may transmit an advance voting ballot shall not apply to an advance voting ballot requested pursuant to an application for an advance voting ballot filed by a voter who has a temporary illness or disability or who is not proficient in reading the English language.
(c) The county election officer shall compare the driver's license number, nondriver's identification card number or copy of other valid identification provided by a voter to the voter registration list verified by the division of vehicles in accordance with federal law. If no identification information was provided by the voter or if such information does not match the information on the voter registration list, the county election officer shall transmit a provisional advance voting ballot.
History: L. 1967, ch. 208, § 10; L. 1972, ch. 134, § 5; L. 1973, ch. 154, § 3; L. 1975, ch. 210, § 1; L. 1978, ch. 140, § 6; L. 1984, ch. 140, § 3; L. 1995, ch. 192, § 22; L. 1996, ch. 187, § 27; L. 1997, ch. 124, § 2; L. 1999, ch. 105, § 13; L. 2004, ch. 93, § 3; L. 2011, ch. 56, § 4; Jan. 1, 2012.


text:
Law Web: Whether court can decree the suit if written statement is not filed?
Whether court can decree the suit if written statement is not filed?
Applying the said position of law to the facts of the present case would show that the appellant has relied heavily on a document termed as Partition Deed. Even in the absence of written statement on behalf of the respondents specifically denying the claims made by the appellant, the burden was on the appellant to prove the aforesaid document in terms of the requirements of law, in order to successfully claim the relief of declaration and other ancillary reliefs sought in the suit filed by him. The Courts below have found that the appellant failed to produce the original Partition Deed and that only a photocopy of the same was placed on record. It was stated in the evidence of the appellant that the original of the said document was with respondent No. 1, but, no efforts were taken by the appellant in terms of law to ensure that the original document was brought before the Court.
13. In the absence of the most crucial piece of evidence in support of the claims made by the appellant being brought on record, merely producing alleged witnesses to the said document before the Court was of no avail. In fact, the trial Court specifically records this aspect while rejecting the claims made by the appellant.
14. In the absence of written statement on behalf of defendants and deemed admissions by them, as claimed by the appellant, the law laid down by the Hon'ble Supreme Court places greater responsibility on the trial Court to ensure that the appellant has been able to prove his case to the hilt. In the present case, on the basis of material on record it is evident that the appellant, being the plaintiff, had miserably failed to produce cogent evidence on record to prove his case, even in the absence of written statement filed on behalf of the respondents. The view taken by the trial Court in this context cannot be found faulted with and the appellate Court has also confirmed the same by correctly applying the position of law.
Martand Vs. Dilip Namdeorao Gotmare and Ors.
1. By this appeal, the appellant (original plaintiff) is challenging the judgment and order dated 29-04-2015 passed by the Court of District Judge-10, Nagpur (Appellate Court), whereby the appeal filed by the appellant herein was dismissed and the judgment and order passed by the Court of 2nd Joint Civil Judge, Senior Division, Nagpur (Trial Court) stood confirmed.
2. The appellant filed Special Civil Suit No. 1021 of 1996, being a suit for declaration, damages and permanent injunction, claiming that he had become the owner of suit property i.e. agricultural field survey No. 83/1 situated at village Satnawari, PH No. 52, Taluka Nagpur (Rural), District Nagpur, admeasuring 4.06 acres. It was his case that the said suit property was allotted to him in a Partition Deed dated 23-11-1986. It was claimed that under the said document, Namdeorao Gotmare, the father of appellant, had allotted the said property to the appellant in exclusion of other members of the family i.e. defendant Nos. 1 to 4 (respondent Nos. 1 to 4 herein). The appellant placed a photocopy of the said Partition Deed on record and it was claimed in his evidence that the original of the said document was with respondent No. 1. The defendants failed to file written statement in the proceedings before the trial Court. It is so recorded by the trial Court in paragraph 6 of its judgment that defendant Nos. 1 to 4 were proceeded without written statement and that defendant No. 5, being a person to whom the other defendants were allegedly intending to sell the suit property, did not even appear before the Court. Therefore, suit was proceeded ex parte against defendant No. 5.
3. By its judgment and order dated 20-08-2007, the trial Court dismissed the suit filed by the appellant. The trial Court found that the claims made by the appellant were based on the aforesaid Partition Deed or family arrangement, but, it was not produced before the Court. It was also noted by the trial Court that although the alleged witnesses to the said Partition Deed were produced before the Court, unless the said document was brought on record, the evidence of such witnesses was of no avail. It is a matter of record that the suit property has been recorded in the name of all the heirs of said Namdeorao Gotmare, including the appellant. The trial Court found that the appellant had failed to prove his case and therefore the suit was dismissed.
4. Aggrieved by the same, the appellant filed Regular Civil Appeal No. 442 of 2012 before the appellate Court. By the impugned judgment and order, the appeal has been dismissed and it has been found that the appellant failed to establish that he was the exclusive owner of the suit property. The appellate Court treated the aforesaid document i.e. Partition Deed as Will and it found that in the absence of said document being brought on record, the contentions of the appellant could not be accepted. It was specifically argued on behalf of the appellant before the appellate Court that in the absence of written statement filed by the contesting respondents (defendants), the trial Court ought to have held that the appellant had been able to prove his contentions on the basis of admissions and that a decree ought to have followed. The appellate Court rejected the contentions and dismissed the appeal, thereby confirming the judgment and decree passed by the trial Court.
"Whether the plaintiff is entitled to a decree on admission in absence of document of title produced on record?"
6. Shri A.S. Deshpande, learned Counsel appearing on behalf of the appellant submitted that since the respondents had failed to file written statement in the trial Court, on a conjoint reading of Order 8 Rule 10 and Order 12 Rule 6 of the Code of Civil Procedure, 1908 [CPC], the trial Court ought to have passed a decree on admissions in favour of the appellant. It was contended that absence of written statement on behalf of the respondents (defendants) amounts to admission of the claims made in the plaint by the appellant and that therefore, decree ought to have been passed by the trial Court in his favour. The learned Counsel for the appellant placed on record the judgments of the Hon'ble Supreme Court in the case of Karam Kapahi and others v. M/s. Lal Chand Public Charitable Trust and another, reported at MANU/SC/0240/2010 : AIR 2010 SC 2077, Balraj Taneja and another v. Sunil Madan and another, reported at MANU/SC/0551/1999 : AIR 1999 SC 3381 and judgment of this Court in the case of National Insurance Co. Ltd., Mumbai v. Dayanand Margeppa Pedde and others, reported at MANU/MH/0096/2010 : 2010 (2) Mh.L.J. 931.
7. On the other hand, Shri S.Z. Qazi, learned Counsel appearing on behalf of the respondents, submitted that although the respondents (defendants) had failed to file written statement before the trial Court, the appellant (plaintiff) was required to prove his case to the hilt. It was submitted that failure to file written statement on behalf of the respondents would not absolve the appellant from proving his case before the Court by adducing cogent evidence in support of his claim. It was submitted that when the basic document i.e. the alleged Partition Deed was never produced by the appellant before the trial Court, there was no error committed by the Courts below in dismissing the suit filed by the appellant. It was submitted that although the appellant claimed in his evidence that the original of the Partition Deed was with respondent No. 1, no notice to produce the original documents was issued by the appellant and he did not file any application before the Court for direction to respondent No. 1 to produce such document in the proceedings before the trial Court. It was submitted that the appellant had failed to prove his contentions by placing on record cogent evidence and that the Courts below were justified in dismissing the suit filed by the appellant. The plaintiff relied upon the judgments of the Hon'ble Supreme Court in the case of Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Limited and another, reported at MANU/SC/0270/2013 : (2013) 4 SCC 396 and Maya Devi v. Lalta Prasad, reported at MANU/SC/0122/2014 : (2015) 5 SCC 588.
"Order VIII Rule 10 of C.P.C.
[10. Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.]"
[6. Judgment on admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule(1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.]"
9. According to the learned Counsel appearing for the appellant a conjoint reading of the aforesaid provisions would show that failure on the part of the respondents to file written statement would require the Court to pronounce judgment against them and that the respondents (defendants) would be deemed to have admitted the claims made by the appellant in the plaint. It was contended that the burden on the appellant (plaintiff) would stand reduced to that extent, in the absence of written statement and any specific denial on behalf of the respondents.
"41. The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the Plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha v. T ELCO Ltd., MANU/SC/0270/2013 : (2013) 4 SCC 396, will be sufficient. The failure to file a Written Statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the Court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted."
"29. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10, CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8."
12. Applying the said position of law to the facts of the present case would show that the appellant has relied heavily on a document termed as Partition Deed. Even in the absence of written statement on behalf of the respondents specifically denying the claims made by the appellant, the burden was on the appellant to prove the aforesaid document in terms of the requirements of law, in order to successfully claim the relief of declaration and other ancillary reliefs sought in the suit filed by him. The Courts below have found that the appellant failed to produce the original Partition Deed and that only a photocopy of the same was placed on record. It was stated in the evidence of the appellant that the original of the said document was with respondent No. 1, but, no efforts were taken by the appellant in terms of law to ensure that the original document was brought before the Court.
15. Therefore, it is clear that the substantial question of law framed by this Court deserves to be answered in favour of the respondents and against the appellant and it is held that even if the respondents failed to file written statement in the present case, it was for the appellant to have proved his case to the hilt by producing cogent evidence. In the absence of aforesaid Partition Deed being placed before the Court despite the fact that it was the very basis of the claims of the appellant, the Courts below cannot be said to have committed an error in holding against the appellant. In this light, it is evident that the reliance placed on behalf of the appellant on judgment of the Hon'ble Supreme Court in Karam Kapahi (supra) and of this Court in National Insurance Co. Ltd. (supra), is misplaced. Hence, this appeal is dismissed with no order as to costs.

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text:
Typically, the government has records in about 15 different agencies related to a criminal Defendant. When the prosecutor goes before the judge, the judge might ask the Prosecutor if he has produced the evidence in “his files” for your case. The Prosecutor will probably say he has produced the evidence in his files. What will conveniently be omitted by the Prosecutor is that he is required to produce evidence in “all agencies” of the government, and that the prosecutor has conveniently moved the evidence to other agencies so the Defendant does not see it. It is never the prosecutor’s duty to determine what evidence is material, and it is not your responsibility to have to go on a treasure hunt to find the evidence. In order to have a fair trial, or a fair plea process, the government is required to produce all records in all agencies of the government for review prior to trial, or prior to a knowing and intelligent plea agreement.
Unfortunately, the government never does.
In order to obtain evidence of concealment, you need to send FOIA requests to all agencies that might have records on you, and request the answers returned certified. Typical government agencies which might have records include: State Department, FBI, DEA, EOUSA, Interpol, Treasury, Comptroller of Currency, FINCEN, Department of Justice, Criminal Division of the Department of Justice, Homeland Security. Go through the list of possible agencies and identify any agency that could have records on you. Then send in FOIA requests and request the answers to be returned certified. You need to be prepared to file a FOIA suit in Washington , DC court (never in your district court), if necessary to obtain the records.
Due Process requires a prosecutor to disclose all favorable evidence to a defendant in a criminal case. Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1994, 1196-1197, 10 L. Ed . 2d 215 (1963); Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
The government knows or should know that the records concealed and/or destroyed are Brady material. U.S. v. Garrett, 238 F.3d 293, 297 (5th Cir. 2000). The concealment of the records can impact trial strategy and the organized and efficient preparations for trial by defense counsel and the court. Id. It is the job of the defense, not the prosecution, to decide whether and in what way to use arguably favorable evidence. Id.
The concealment of the evidence by the government establishes its materiality as a matter of law, creating a presumption that can not be overcome by the government. Runkle v. Burnham, 153 U.S. 216, 38 L. Ed . 694, 14 S.Ct. 837 (1894)(the failure of a party to produce in evidence or to testify in reference to an instrument, when its contents were peculiarly within its knowledge, justifies the presumption that its provisions would have been unfavorable to his position); Kirby v. Tallmadge, 160 U.S. 379, 16 S.Ct. 349, 40 L. Ed . 463 (1896)(the failure of a party to produce evidence in his power in elucidation of the subject matter in dispute raises a presumption against him); Fitsimmons v. Ogden, 7 Cranch 2, 11 U.S. 2, 3 L. Ed . 249 (1812); Wetmore v. Rymer, 169 U.S. 115, 42 L. Ed . 682, 18 S.Ct. 293 (1898) Burdine v. Johnson, 262 F.3d 336, 366 (5th Cir. 2001)(failure to produce available evidence justifies an inference that it would be unfavorable to the other party).
The government waives its right to claim privileges on documents concealed. SEC v. First Financial Group of Texas, Inc., 659 F.2d 660, 668-669 (5th Cir. 1981); Clarke v. American Commerce National Bank, 974 F.2d 127, 129 9th Cir. 1992); Spence v. Johnson, 80 F.3d 989, 1005 (5th Cir. 1996)(inadmissible evidence may be material and disclosable); Sellers v. Estelle, 651 F.2d 1074, 1077, n.6 95th Cir. 1981); Peat, Marwick, Mitchell, & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984)(failure to make a clear showing that privilege applies to a document sought in discovery is not excused by a later showing that the document would have been privileged if a timely showing had been made).
As a matter of law, the burden on concealed evidence now shifts to the government and the government can not carry that burden. See Campbell v. United States , 365 U.S. 85, 96, 5 L. Ed . 2d 428, 81 S.Ct. 421 (1961)(“[T]he ordinary rule, based on considerations of fairness, does not place the burden on a litigant of establishing facts peculiarly within the knowledge of his adversary”); United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 78 S.Ct. 212, 2 L. Ed .2d 247 (1957); Allstate Finance Corp. v. Zimmerman, 330 F.2d 740, 744 (5th Cir. 1964)(where burden of proof of negative fact normally rests on one party, but that party has peculiar knowledge or control of evidence as to such matter, the burden rests on the latter to produce such evidence, and failing, the negative will be presumed to be established); United States v. Denver & R.G.R. Co, 191 U.S. 84, 24 S.Ct. 33, 48 L. Ed . 106 (1893); Morgan v. Gardner, 264 F.Supp. 476, 577-578, F.N. 3 (S.D.Miss. 1967)(“…The rule is applicable even in criminal cases”); Local 167 Brotherhood of Teamsters v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L. Ed . 804 (1934); Patco v. Federal Labor Relations Authority, 685 F.2d 547, 577, FN 65 (D.C.Cir. 1982)(“Common sense and established principles of evidence disfavor unnecessarily placing such difficult, perhaps impossible burdens on a party”); Allseas Maritime, S.A. v. M/V Mimosa, 812 F.2d 243, 248 (5th Cir. 1987).
The government’s conduct and concealment of the evidence not only violates Due Process but also violates F.R.Civ.P. 16(c) (continuing duty to disclose); F.R.Civ.P. 11(b) (representations to the Court); F.R.Civ.P 26(e) (supplementation of disclosures and responses); F.R.Civ.P. 26(g) (signing of disclosures, discovery requests, responses, and objections); F.R.Civ.P. 37(failure to make disclosure or cooperate in discovery; sanctions); F.R.Crim.P. 16(c); F.R.Civ.P. 11(b); F.R.Civ.P. 26(e); F.R.Civ.P 26(g); and F.R.Civ.P. 37).
The government’s conduct in concealing evidence also violates most standing orders regarding discovery and the Court’s orders for discovery in trial proceedings.
The failure to disclose violates the Code of Professional Conduct, local rules, and the quasi-judicial responsibility of the prosecutors. Strickler v. Greene, 527 U.S. 263, 281, 144 L. Ed . 2d 286, 119 S.Ct. 1936 (1999) (the U.S. attorney is the representative of a sovereignty whose obligation to govern impartially is as compelling as its obligation to Govern at all).
The Ted Stevens case and Don Siegelman case are just the just the beginning of the evidence of fraudulent practices by the Office of U.S. Attorneys to obtain convictions. Why? When someone wins 99 percent of the time, they are not playing by the rules.
 When you present concealed evidence, you should request the court to take Judicial Notice of the Constitution of the United States . See Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L. Ed . 60 (1803)(Courts of the United States are bound to take notice of the Constitution).
 You should also request the court to take judicial notice of the Criminal and Civil Discovery rules and the plain meaning of the words and phrases of the rules. St. Louis, L.M. & S.R. Co. v. Starbird, 243 U.S. 592, 61 L. Ed . 917, 37 S.Ct. 462 (1917); Missouri K & T.R. Co. v. Wulf, 226 U.S. 570, 57 L. Ed . 355, 33 S.Ct. 35 (1913)(All courts, federal and state alike, take judicial notice of the public and general acts of Congress).

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(4) any federally defined eligible individual for FTAA.
(7) such person is a federally defined eligible individual for FTAA.
(c) Each resident dependent of a person who is eligible for plan coverage shall also be eligible for plan coverage.
(5) any person who is eligible for any other public or private program that provides or indemnifies for health services.
(e) Any person who ceases to meet the eligibility requirements of this section may be terminated at the end of a policy period.
(f) All plan members, insurers and insurance arrangements shall notify in writing persons denied health insurance coverage, for any reason, of the availability of coverage through the Kansas health insurance association.
History: L. 1992, ch. 209, § 6; L. 1995, ch. 129, § 1; L. 1997, ch. 190, § 10; L. 1998, ch. 174, § 4; L. 1999, ch. 30, § 1; L. 2004, ch. 159, § 9; L. 2011, ch. 111, § 6; June 2.


"1. On November 5,2010, A3M Vacuum Services, L.L.C. ("Plaintiff') filed a "Petition for Breach of Contract" in the Fortieth Judicial District Court, St. John the Baptist Parish, Louisiana, where the case was assigned number 60,722 (the "State Action"). Plaintiff named as defendants Westchester Specialty Insurance Services, Inc. d/b/a Ace Westchester Specialty Group and ACE American Insurance Company.
2. On January 10,2011, Plaintiff filed a "First Amended Petition for Breach of Contract," which added Illinois Union Insurance Company as a defendant and deleted as defendants Westchester Specialty Insurance Services, Inc. d/b/a Ace Westchester Specialty Group and ACE American Insurance Company.
3. On November 8,2012, Plaintiff filed a "Supplemental and Second Amended Petition for Breach of Contract," which amended and supplemented the allegations against Illinois Union.
4. On April 8,2013, Plaintiff filed a "Supplemental and Third Amended Petition for Breach of Contract," which added Clarendon as a defendant.
5. A copy of the original "Petition for Breach of Contract," "First Amended Petition for Breach of Contract," "Supplemental and Second Amended Petition for Breach of Contract," and "Supplemental and Third Amended Petition for Breach of Contract" are attached in globo as Exhibit "A."
6. Clarendon received the Supplemental and Third Amended Petition for Breach of Contract, and the previous petitions, through service of process on April 24,2013, which is well within the thirty day limitation provided in 28 U.S.C. § 1446(b). A copy of the citation which shows the date of service is attached as Exhibit "B."
7. The crux of the State Action is as follows. Lawrence E. Brock was in a rear-end auto accident Mr. Brock and his wife sued Myron Ellis Singleton, A3M Vacuum Service, and Clarendon. The matter was tried, and the Brocks were awarded $1,236,419.70, which verdict exceeded Clarendon's $1 million policy limits. In the instant case, Plaintiff alleges that Clarendon failed to prevent a verdict in excess of its policy limits, failed to give proper notice to the excess carrier (Illinois Union), and failed to give proper warning of an excess potential liability claim to Plaintiff. Plaintiff also alleges that Illinois Union was given appropriate notice of the Brock lawsuit, and wrongfully denied coverage. See Exhibit "A."
b. Billie B. Sellars - an individual domiciled in the State of Louisiana. 10. As of the time of the filing of the original Petition for Breach of Contract, the original named defendants were Westchester Specialty Insurance Services, Inc. d/b/a Ace Westchester Specialty Group ("Ace Westchester Specialty Group") and ACE American Insurance Company. Upon information and belief, Ace Westchester Specialty Group was and is an insurance company corporation incorporated in Georgia, with its principal place of business in Georgia. ACE American Insurance Company was and is an insurance company corporation incorporated in Pennsylvania, with its principal place of business in Pennsylvania.
11. As of the time of the filing of the First Amended Petition for Breach of Contract, which substituted in Illinois Union Insurance Company as a defendant in place of Westchester Specialty Group and ACE American Insurance Company, Illinois Union was and is an insurance company corporation incorporated in Pennsylvania, with its principal place of business in Illinois.
12. As of the time of filing of the Supplemental and Third Amended Petition for Breach of Contract, Clarendon was and is an insurance company corporation incorporated in New York, with its principal place of business in New Jersey.
Plaintiff demands recovery from Clarendon damages in the sum of $709,259.10, and recovery from Illinois Union the amount of the original demand ($236,419.70), plus additional damages in the sum of $472,839.40. See Exhibit "A."
14. Therefore, this Court has original jurisdiction over this case as a matter of diversity jurisdiction. See 28 U.S.C. § 1332.
16. Clarendon received the Supplemental and Third Amended Petition for Breach of Contract, and previous petitions, through service of process on April 24,2013. See Exhibit "B." Clarendon is removing this case within 30 days after receipt of service of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. See 28 U.S.C. § 1446(b)(1) - (2).
17. Plaintiff filed its original petition on November 5, 2010, but the case is not barred by the one year removal time limit. Under 28 U.S.C. § 1446(c)(1), which references 28 U.S.C. § 1446(b)(3), the one year removal time limit only applies if the case stated by the initial pleading is not removable. See also, Badon v. R JR Nabisco, 224 F.3d 382,389 (5th Cir. 2000)(citing previous version of 28 U.S.C. § 1446(b), and noting that one-year limitation on removal of diversity cases applies only to those that were not initially removable). At the time of the filing of the initial pleading, the case was removable. Complete diversity existed and the original Petition alleged damages in excess of $75,000. See Exhibit "A."


text:
Ver. 1. Delayed. They waited perhaps about a month, with some patience; and then, becoming seditious, assembled against Aaron, and extorted from him a compliance with their impious request. He was thus guilty of a grievous crime, though the violence might extenuate it in some degree. Salien. --- He was not yet ordained high priest. C. xl. 12. H. --- Gods. Aaron gratified their request by the golden calf. They had the pillar to conduct them, but they wanted something new. They speak with contempt of Moses. M.
Ver. 2. And your sons. The Sept. omit this. But in the East, it was fashionable for men also to wear ear-rings. Plin. xi. 37. Judg. viii. 24. Ezec. vii. 20. Aaron hoped the people would relent at this proposal. S. Aug. q. 141.
Ver. 4. Received them, "in a purse, (as Gideon did afterwards, Judg. viii. 25,) he made a molten calf." Jonath. --- Perhaps he engraved on it the peculiar marks of the Egyptian idol, Apis; a square white spot on the forehead, and a crescent upon the side. For it is generally believed, that this calf was designed to imitate that object of worship, to which the Hebrews had been too much accustomed. Acts vii. 39. 41. S. Jer. in Ose. iv. The Egyptians adored not only the living ox, but also its image, which they kept in their temple. Porphyr. Abst. ii. Mela. i. 8. Some of the fathers think, that the head of a calf only appeared. S. Amb. Lactant. &c. The rest of the figure was perhaps human, as Osiris was represented with the head of an ox, as well as Astarte and Serapis. Monceau pretends that Aaron represented the true God, under the form of a cherub, in which he falsely asserts he had appeared on Mount Sinai, and that his fault consisted only in giving occasion of superstition to the people. But his opinion (though adopted by many Protestants, who excuse all from the guilt of idolatry, but papists. H.) has been condemned at Rome, and refuted by Visorius, &c. --- Thy gods, &c. Thus spoke the infatuated ringleaders. C. --- And they changed their glory, the true God, into the likeness of a calf that eateth grass. Ps. cv. 19. --- They forgot God, who saved them, ib. (v. 21,) and forsook Him, (Deut. xxxii. 18,) to adore the calf. W.
Ver. 5. The Lord. The most sacred name of God is prostituted, (Judg. xvii. and xviii. Wisd. xiv. 21,) and an altar is erected to this idol; though some pretend, that Aaron meant God to be adored under this similitude. His weakness was unaccountable, and God would have slain him, had not Moses interceded. Deut. ix. 20. Those who undertake to justify him, enter not into the sentiments of God; and the offender himself pleads no excuse, but the violence of the people, v. 23. Salien. --- To-morrow, when the 40 days expired, and Moses returned arrayed in terrors. H.
Ver. 6. They offered, by the hands of Aaron, to whom the Sept. refer all this. "He offered," &c. appearing at the head of the idolaters. A Lapide insinuates, that he wished to supplant his brother in the supreme command; and after a faint resistance, became the promoter of idolatry, to ingratiate himself with the people. The Scripture lays not this, however, to his charge. C. --- To eat of the victims. --- To play, dancing and singing in honour of their idol, probably with many indecent gestures, as was customary on such occasions among the nations of Chanaan. H. --- Tertullian (de jejunio) understands impure play. The word means also to dance, and to play on instruments of music. Ludere quæ vellem calamo permisit agresti. Virg. Ec. i. C. --- Sulpitius says, the people abandoned themselves to drunkenness and gluttony, or debauchery, vinoque se & ventri dedisset. H. --- They might get wine from Madian. Salien. --- Foolish mirth is the daughter of gluttony, and the mother of idolatry. S. Greg. Mor. xxxi. 31. W.
Ver. 7. Thy people. They are not worthy to be styled my people; and thou didst ratify the covenant with me, in their name, and as their interpreter. They have sinned, giving way to idolatry in thought, word, and deed.
Ver. 9. And again. The Sept. omit this verse. Moses, at the first intimation of the people's sin, fell prostrate before the Lord, to sue for pardon, and pleaded the natural weakness of an ungovernable multitude, in order to extenuate their fault. This God admits. --- I see, &c. But while he seems bent on punishing them, to try his servant, he encourages him inwardly to pray with fervour. Salien.
Ver. 10. Alone. One fully determined on revenge will bear with no expostulation; whence S. Greg. (Mor. ix. 11,) and Theodoret (q. 67,) look upon this as an incitement to pray more earnestly, seeing God's servants have such influence over Him. The mercy of God struggled with his justice, and stopped its effects. --- Nation, as I promised to Abraham; or I will make thee ruler over a nation greater than this, as Moses explains it, (Deut. ix. 14,) and as the like offer is made, Num. xiv. 12. The Sam. subjoins here, "And God was likewise much irritated against Aaron, and would have destroyed him; but Moses prayed for him:" which we are assured was the case. Deut. ix. 20. C.
Ver. 11. Why, &c. Calvin here accuses Moses of arrogance, in prescribing laws to God's justice. But S. Jerom (ep. ad Gaud.) commends his charity and "prayer, which hindered God's power." W.
Ver. 12. Craftily. Heb. "with a malicious design." Moses insinuates, that the glory of God is interested not to punish the Hebrews, lest the Gentiles should blaspheme, particularly as the land of Chanaan seemed to be promised unconditionally to the posterity of Abraham, who were now, all but one, to be exterminated. H.
Ver. 13. Thy servants. Thus God honours his friends, and rewards their merits, which are the effects of his grace. W.
Ver. 14. Appeased. Yet of this Moses was not fully assured, and in effect only those who were less guilty, were reprieved to be punished afterwards, v. 30. 35. H.
Ver. 15. Both sides. The ten commandments were written twice over, or on both sides, that all who stood round Moses, might be able to read them. M. --- On one side, appeared the laws regarding God; on the other, those which relate to man. H. --- They were like two originals. The common way of writing was only on one side. C.
Ver. 17. Josue, who was waiting for Moses lower down on the mountain. C. xxiv. 13.
Ver. 18. Cry, &c. Heb. "the cry answering strength...or...weakness," which the Vulgate elucidates. --- Singers. Sept. "I hear the cry of those who contend for pre-eminence in wine," or over their cups. H.
Ver. 19. Mount. "Finding the people abandoned to luxury and sacrilege, he broke the tables, deeming it a nation unworthy to be entrusted with the law of God." Sulpit. i. 33. By this action, Moses foreshewed the dissolution of the covenant with the Jews, that the new covenant might take place. S. Aug. q. 144. The Jews kept the 17th of the fourth month as a fast, in memory of this event. S. Jer. in Zac. viii.
Ver. 20. Calf. Having manifested his disapprobation of the people's conduct, in the most signal manner, by breaking the two tables; Moses proceeds to convince them of their stupidity, in adoring what he, in a few minutes, reduces to powder. H. --- He breaks the calf in pieces, after burning it, and then grinds it to dust in a mill, with files; as the Heb. Chal. and Sept. intimate. He throws it, with contempt, into the torrent, which supplied the camp with water, and thus caused the idolaters to swallow their god. T. -- Sa assures us, that he saw an alchymist pulverize gold, which Abenezra says is done by means of some herbs, which turn the gold quite black, when it is melted. C. --- Some use aquafortis for this purpose. T. --- But from the account of Moses, (Deut. ix. 21,) it seems fire, and the mille, or file, reduced the gold into the smallest particles, so as to be even potable. Josephus (viii. 2,) mentions the gold dust used by the courtiers of Solomon. C.
Ver. 22. Evil. Aaron answers his younger brother with humility, being now touched with repentance; on which account, God still grants him the high priesthood. H.
Ver. 24. Came out. The Rabbins pretend alive, and able to walk. Hence they say Aaron was filled with astonishment, and induced to erect the altar in its honour. R. Salomo and Burgens. But these are Jewish fables, injurious to God, and invented to hide, in some degree, the shame of their ancestors. For the same reason, Josephus passes over the whole in silence, and Philo throws the blame on a few Egyptian converts. They might very probably be the ringleaders, as Num. xi. 4. But the Hebrews in general readily gave in to the delusion. 1 Cor. x. 7. H.
Ver. 25. Naked. Having lost not only their gold, and their honour, but what was worst of all, being stripped also of the grace of God, and having lost him. --- The shame of the filth. That is, of the idol, which they had taken for their god. It is the usual phrase of the Scripture to call idols filth, and abominations. Ch. --- Of the filth, is not in Heb. But it serves to explain how the Hebrews came to be so unprotected and disconcerted. See 2 Par. xxviii. 19.
Ver. 26. All the sons; that is, the great majority of them; for some were probably slain, v. 29.
Ver. 28. About, &c. The Heb. letter c means about, and stands also for twenty. All the versions, and some copies of the Vulg. retain the first signification; but our edition gives also the second. Sixtus V. and the Louvain Bible have about 33,000. H. --- S. Paul (1 Cor. x. 7. 8,) mentions, that three and twenty thousand perished, in punishment of their fornication (with the Moabites), which some explain of the adoration of the calf, and say that Moses only specifies those slain by the Levites; while S. Paul gives the number of all those who perished by the hand of God on this occasion, v. 35. C. --- S. Cyril, Alex. glap. 2, Sulpit. and many other fathers, agree with the Vulgate. The fornication with the Moabites, was followed by the death of 24,000. Num. xxv. 9. So that S. Paul cannot refer to it, unless he only mention those who perished in one day; and Moses expresses the total amount of the slain during the whole affair. H.
Ver. 29. To you. Thus they merited the priesthood, and a blessing; (Deut. xxxiii. 9. M.) having been the ministers of God's just indignation, without sparing any of the most guilty. With these they could not be unacquainted. No external signs on their bodies were requisite to make the delinquents known. They had appeared to publicly. H. --- The Levites acted with due authority and order, which their father, Levi, had neglected. Gen. xxxiv. W.
Ver. 30. You. Many who had not been slain, had followed the bad example, and Aaron, in particular, had brought upon them a most heinous sin. v. 21. Yet on account of their repentance, they were not subjected to immediate punishment; but they were visited afterwards, v. 34. Though God was appeased, (v. 14,) so as not to destroy the whole multitude, Moses thought it a very arduous task to obtain a full reconciliation, notwithstanding the exemplary vengeance he had taken of the ringleaders. Hence he addresses himself to God with the greatest humility, and with such earnestness as scarcely seems justifiable, if we understand that he put his own eternal salvation at stake. But he makes an impossible supposition, or proposal, which he knew God would not admit, to extort as it were the requested favour. As he is willing to die for his people, God pardons them for his sake. S. Aug. q. 147, &c. H.
Ver. 32. The book of predestinate. S. Paul uses a similar expression, Rom. ix. 3. Neither could he really desire or consent to be accursed, even for a time. Hence their words can be understood only as an hyperbole, to denote the excess of their love for their brethren, as if a child should say to his father, pardon my brother, or kill me. T. --- Some explain this book, of the law or covenant, by which Moses was appointed the prince of the Hebrews, which title he is willing to forego, with pleasure, to obtain their pardon. C. --- Others understand the book, or register of the living. He is willing to die for his people. See Num. xi. 15. S. Greg. Mor. x. 7. S. Jer. ad Algas. --- This sense is very good, and sufficiently expresses the fervour of Moses. Greater live than this no man hath. Jo. xv. 13.
Ver. 33. Book: him will I slay; and, if he die impenitent, I will punish him for ever. H.
Ver. 35. Struck, with some judgment, not specified; (Lyran.) or perhaps, the various punishments which were inflicted on the Hebrews in the wilderness, were all partly designed to chastise this first act of idolatry. Calmet explains this of the devastation caused by the Levites, as he supposes the narration of Moses does not deserve the order of time. He thinks Moses expostulated with the people, and was then sent by God to punish them; and while they were unarmed, (C. xxxiii. 5,) the Levites fell upon them. Then Moses removed the tabernacle out of the camp, and obtained of God that he would go before them, and not an angel only, v. 34. C. xxxiii. 17. Moses continued full forty days, standing or lying prostrate on the mount, before the Lord, to obtain the pardon of his people. Deut. ix. 25. x. 10. At the expiration of which term he returned, with an order to prepare two other tables of stone, on which, after a supplication of the same length of time, he obtained the law to be again engraven. C. xxxiv. 28. The favour cost him therefore 120 days' earnest prayer; and yet how little are we touched with God's mercy, in giving us his law! H.

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


Judith A. Rosenstein, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.
David Williams, Assistant United States Attorney (Laura Fashing, Assistant United States Attorney and Norman C. Bay, United States Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
Defendant Clifford B. Dando appeals a district court order amending his criminal judgment to impose restitution pursuant to 18 U.S.C. § 3664(d)(5). Defendant asserts the district court lacked jurisdiction to amend the original criminal judgment. This court has jurisdiction pursuant to 18 U.S.C. § 3742(a)(1). We affirm.
On March 27, 2000, Defendant pled guilty to misdemeanor assault of a child under 16 years of age in Indian Country in violation of 18 U.S.C. § 113(a)(5) and 18 U.S.C.
§ 1153. Defendant pled guilty pursuant to a Fed. R. Crim. P. 11(e)(1)(C) plea agreement. In the agreement, Defendant acknowledged he was pleading guilty to a crime of violence under 18 U.S.C. § 16(a), and that restitution was mandatory under 18 U.S.C. § 3663A.
At the sentencing hearing on June 20, 2000, the district court accepted the plea agreement, but did not order restitution because the victim had not yet submitted a restitution request to the court.(1) The court did not set a date for finalizing restitution. The July 7, 2000 judgment order also did not impose restitution. Thirty-six days after the sentencing hearing, the Government moved pursuant to 18 U.S.C. § 3664(d)(5), to amend the judgment to include restitution. Defendant opposed the motion, arguing the district court did not have jurisdiction to amend the judgment. On August 30, 2000, seventy-one days after sentencing, the court held a hearing on the Government's motion and indicated its intent to order restitution pursuant to 18 U.S.C. § 3664(d)(5). At defense counsel's request, the court continued the hearing so Defendant could be present. Subsequently, Defendant filed a motion for an evidentiary hearing concerning the amount of restitution. After an evidentiary hearing, the district court entered an order on December 13, 2000 amending the judgment and ordering Defendant to pay restitution.
The Mandatory Victims Restitution Act (MVRA) requires the court to order restitution in any case involving a conviction for an offense that constitutes a crime of violence as defined by 18 U.S.C. § 16(a), including misdemeanor assault. 18 U.S.C.
If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.
Defendant asserts the Government and the district court failed to follow the procedures necessary for the court to acquire jurisdiction under 18 U.S.C. § 3664(d)(5). The Government or probation office failed to notify the court prior to sentencing that the victim's losses were not ascertainable, as mandated by § 3664(d)(5). The district court failed to follow statutory procedures in deferring entry of the restitution order. According to Defendant, because the district court failed to assert its power at sentencing to defer entry of a restitution order, and failed to enter a restitution order within ninety days of sentencing, the court lacked jurisdiction to order Defendant to pay restitution. The Government concedes the district court failed to follow statutory procedures, but contends a district court is not required to strictly adhere to the procedures to obtain jurisdiction. We review de novo the district court's assertion of jurisdiction. United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997).
A district court does not have inherent authority to modify a sentence. See United States v. Blackwell, 81 F.3d 945, 949 (10th Cir. 1996). The court's authority to order restitution post-sentencing derives solely from the statutory grant of jurisdiction in 18 U.S.C. § 3664(d)(5).(3) The notice and time requirements imposed by jurisdictional statutes generally are mandatory. Courts lack authority to act in cases where the litigants have not satisfied these requirements. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 (1988); United States v. Smith, 182 F.3d 733, 734 (10th Cir. 1999). Procedural requirements, however, are liberally construed. Torres, 487 U.S. at 317 ("[I]f a litigant files papers in a fashion that is technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires."); Smith, 182 F.3d at 734 (court has jurisdiction if motion filed is the "functional equivalent" of what the rules require). We see no reason why the analysis should differ when the court asserts jurisdiction pursuant to 18 U.S.C. § 3664(d)(5). The district court's failure to follow statutory procedural requirements will not deprive the court of jurisdiction if the actions taken provided the functional equivalent of the statutory procedures. See Smith v. Barry, 502 U.S. 244, 248-49 (1992); Smith, 182 F.3d at 734.
In this case, the district court erred by failing to follow the statutory notice provisions. Although the court referred to the Mandatory Victims Restitution Act during sentencing, the court should have clarified at sentencing and in the judgment order that it was holding the matter of restitution open. The court also should have set a date at sentencing for determining the restitution amount. See 18 U.S.C. § 3664(d)(5). Defendant, however, received the functional equivalent of the notice required by the statute. Defendant signed a plea agreement in which he acknowledged restitution was mandatory. Although the district court did not specifically announce its intent to order restitution, and did not establish a date to finalize the restitution amount, the sentence hearing transcript clearly indicates the court recognized restitution was mandatory and considered the matter open. Because Defendant was aware restitution was mandatory and aware the matter was left open at sentencing, Defendant could not have any expectation of finality in the judgment entered.(4) Defendant received notice of the Government's restitution calculations thirty-five days prior to the hearing on the Government's motion and had ample opportunity to object to the restitution amount.
The district court also failed to enter a restitution order within ninety days. Under the plain language of the statute, the district court "shall" set a date for the final determination within ninety days of sentencing. Id. at § 3664(d)(5).(5) See also United States v. Maung, 267 F.3d 1113, 1121 (11th Cir. 2001) (reading the provision as requiring the district court to enter an initial restitution order within 90 days of sentencing); accord United States v. Jolivette, 257 F.3d 581, 584 (6th Cir. 2001); United States v. Stevens, 211 F.3d 1, 5 (2d Cir. 2000); United States v. Grimes, 173 F.3d 634, 639-40 (7th Cir. 1999). In this case, the court entered the initial restitution order 176 days after sentencing.
The statute's time prescriptions, however, are subject to equitable tolling. See Stevens, 211 F.3d at 4-5 (tolling the 90-day period where the defendant's purposeful misconduct caused the delay); see also Carlisle v. United States, 517 U.S. 416, 435 (1996) (Ginsberg, J., concurring) (time prescriptions generally are subject to equitable tolling even in jurisdictional statutes).(6) The Government moved to file a restitution order well within the ninety-day time frame established by the statute. Although the district court did not impose restitution within ninety days, the delay was due to Defendant's request for a continuance and for an evidentiary hearing. Where a defendant's own conduct delayed the timely entry of a restitution order, the defendant cannot insist on strict conformity with the statute's time prescriptions. Stevens, 211 F.3d at 5.
Because the district court proceedings provided the functional equivalent of the notice required by the statute, and because defendant's request for a continuance and an evidentiary hearing tolled the statutory time period, we conclude the district court had jurisdiction to enter a restitution order pursuant to 18 U.S.C. § 3664(d)(5).
Accordingly, the district court order amending the judgment and ordering restitution is AFFIRMED.
Court finds that the victim or victim's treatment agency has not submitted a request for restitution, and, therefore, at this time, the Court will not impose restitution." (emphasis added).
Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim's estate.
3. The Government properly concedes Fed. R. Crim. P. 35 and 36 do not provide the district court authority to order restitution in this case. A court's authority under Rule 35 is limited to correcting technical or arithmetic errors within 7 days after imposing the original sentence. Rule 36 is limited to clerical mistakes.
4. The provision authorizing the court to defer restitution until the victims' losses have been calculated is intended to benefit the victims. See United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999). The legislative history indicates Congress intended the 90-day limitation period to protect victims against the dissipation of defendants' assets and not to protect defendants from a drawn-out sentencing process or to establish finality. See United States v. Stevens, 211 F.3d 1, n. 2 (2d Cir. 2000). The statute expressly provides procedures pursuant to which victims can request additional compensation for additional losses discovered at any time in the future. See 18 U.S.C. § 3664(d)(5).
5. Although § 3664(d)(5) establishes a 90-day period for the "final determination of the victim's losses" rather than referring directly to the restitution order, each of the other circuits to address the issue have construed "final determination" as referring to the entry of the restitution order. See United States v. Jolivette, 257 F.3d 581, 584 (6th Cir. 2001); United States v. Maung, 267 F.3d 1113, 1121 (11th Cir. 2001); United States v. Stevens, 211 F.3d 1, 5 (2d Cir. 2000); United States v. Grimes, 173 F.3d 634, 639-40 (7th Cir. 1999). We agree. "[T]he provision that a victim may 'petition the court for an amended restitution order' would have no meaning unless the order had been entered." Stevens, 211 F.3d at 4.
6. Although we have strictly enforced time period requirements imposed by the Federal Rules of Appellate Procedure, the Rules establish procedures pursuant to which the opposing party and the courts receive adequate notice of the appeal. The Mandatory Victims Restitution Act confers rights on victims, not criminals. See United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999). "Congress could not have intended to permit offenders to subvert the [MVRA] by using dilatory maneuvering to defeat an order of restitution." Stevens, 211 F.3d at 4.