Before SEYMOUR, Circuit Judge, McWILLIAMS, Circuit Judge, and MILLS,(2) District Judge.
In a second superceding indictment filed in the United States District Court for the Northern District of Oklahoma, Sidney Ronnell Iiland ("Iiland"), David Busby ("Busby"), Kenneth Maurice Woods ("Woods"), Robert Edwin Eskridge ("Eskridge"), Michael McCalister ("McCalister"), and others, were jointly charged with various drug and drug related offenses. Some defendants entered into plea agreements, and two were never apprehended. In a jury trial, Busby was convicted of several offenses. In a separate jury trial, Iiland, Woods, Eskridge and McCalister were jointly tried, and all were convicted of various drug offenses.
Iiland, Busby, Woods, Eskridge and McCalister have each filed separate appeals and are represented in this Court by different counsel. On November 16, 2000, oral argument was heard by this Court from counsel for Busby, Woods and McCalister, as well as from government counsel. Counsel for Iiland and Eskridge waived oral argument and by order of this Court their appeals were submitted on the briefs. Four of the five appellants, namely, Busby, Woods, Eskridge, and McCalister are companioned for the purpose of disposition, although each will be considered seriatim. Iiland's appeal will be treated separately.
Busby was charged in the superceding indictment with conspiracy to possess with intent to distribute, and distribution of controlled drugs, use of a firearm during a drug trafficking crime, possession with intent to distribute a controlled substance and maintaining a place for the purpose of distributing a controlled substance. Busby, in a jury trial, was tried and convicted of all counts except conspiracy which the government dismissed. Busby was sentenced to 211 months imprisonment, supervised release of five years and a fine of $2000.
On appeal, Busby, who was tried separately from the other appellants, argues that the district court erred in two particulars: (1) the district court erred in denying his pre-trial motion to suppress wiretap evidence allegedly obtained in an illegal telephone tap, and (2) the district court also erred in denying his motion to suppress certain inculpatory statements made by him to police officers. We find no reversible error and therefore affirm Busby's several convictions and the sentences imposed thereon.
On September 23, 1998, upon application of the Assistant United States Attorney for the Northern District of Oklahoma, which was supported by a fifty six page affidavit, the district court issued an order authorizing the interception of wire communication for no more than 30 days to and from the telephone located at 316 West 13th Street, Apartment #1, Tulsa, Oklahoma, which phone was "subscribed to in the name of Latrice Edmond . . . hereinafter the target telephone." On October 23, 1998, the district court, again upon application of the Assistant United States Attorney, extended the prior order for up to 30 days on the same "target telephone" identified in the original order of authorization.
Although we cannot find it in the record on appeal, prior to his trial, Busby apparently filed a pretrial motion to suppress the use at trial of the evidence obtained through the wire interceptions, which included several telephone calls by Busby to the target telephone, and some from the target telephone to Busby. Hearing on Busby's motion to suppress was held on August 16, 1999. At the outset of the hearing, counsel, and the court, were in apparent agreement that a wiretap authorization order is presumed proper and that a defendant in a criminal proceeding bears the burden of overcoming this presumption. United States v. Mondragon, 52 F.3d 291, 292 (10th Cir. 1995); United States v. Green, 175 F.3d 822 (10th Cir. 1997). In any event, counsel for Busby called as his one and only witness Christopher Peters, a special agent of the Federal Bureau of Investigation, who was examined and cross-examined, at length, regarding the wiretap orders and the applications therefor. Peters was the affiant in each application. At the conclusion of this hearing, the district court denied Busby's motion. The district court first observed that Busby "had failed to reach the threshold of rebutting the presumption that the order and its extension were proper." The district court then went on to discuss in some detail the other aspects of the matter. On appeal, counsel's initial argument is that the district court erred in denying Busby's motion to suppress the wiretap evidence. We do not agree.
As we understand it, Busby's challenge is to the extension order of October 23, 1998, and not to the initial wiretap order of September 23, 1998. The challenge of the extension order is based on counsel's belief that there was "no necessity" for an extension order, at least as such relates to Busby, since Busby became known, or could have been known, to the authorities during the 30 day period authorized by the order of September 23, 1998. That is not the way we read the record. At the hearing on the motion to suppress, counsel for Busby called one witness, Christopher Peters, the special agent for the Federal Bureau of Investigation. Agent Peters testified that Busby's identity was not made during the initial 30 day period but only well after the extension order was entered. It would appear that in the initial 30 day period there may have been telephone calls involving the target telephone and Busby, but Busby's identity was not established until after the issuance of the extension order. It is our understanding that, during the time of the wiretap, there were about 3200 calls to and from the target telephone and that only 310 were deemed pertinent and recorded. In any event, the application for the wiretap and the application for the extension thereof were sufficient to meet the "necessity" requirement. The statutory requirements concerning necessity, 18 U.S.C. §§ 2518(1)(c), (3)(c), must be read in a "common sense fashion" and do not require law enforcement officials to exhaust all conceivable procedures before seeking a wiretap. See United States v. Nunez, 877 F.2d 1470, 1472 (10th Cir. 1989); United States v. Apodaca, 820 F.2d 348, 350 (10th Cir. 1987) cert. denied 484 U.S. 903 (1987).
Busby also challenges on appeal the district court's denial of his motion to suppress statements made by him at the time of his arrest to Officers Parsons and Francetic of the Tulsa Police Department. A hearing on this motion was held just before commencement of the actual trial  out of the presence of the jury. Counsel for Busby called two witnesses in support of that motion, Officers Parsons and Francetic. Parsons testified that shortly after Busby's arrest, he advised Busby of his Miranda rights and questioned him briefly, at which point Busby indicated that he did not want to talk further with Parsons. There was some indication that because of some real, or fancied, "personality conflict," Busby simply did not want to talk with Parsons. In any event, after a few questions about a key ring, Busby was turned over to Parsons' supervisor, Corporal Francetic. The latter testified that he advised Busby again of his Miranda rights and that Busby then voluntarily gave him information about a rented storage unit where contraband was later found. Francetic testified that Busby later stated the contents of the storage unit were his, and not his girlfriend's.
Counsel argues that the officers continued to question Busby after he had indicated that he wanted to discontinue all dialogue with the police and that his subsequent statements concerning the storage unit and his girlfriend were involuntary. We do not agree. The testimony of Officers Parsons and Francetic amply supports the district court's holding that, all things considered, Busby's statements to the local police were voluntary. United States v. Lewis, 24 F.3d 79 (10th Cir. 1994).
It is on this basis that we conclude that the district court did not err in denying Busby's motions to suppress evidence gained by the wiretap and his statements to the police officers at the time of his arrest.
Eskridge was jointly tried with Iiland, Woods, and McCalister and the jury convicted him of conspiracy, 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and a continuing criminal enterprise in violation of 21 U.S.C. §§ 846, 848. He was later sentenced to imprisonment for 420 months on each conviction, to be served concurrently and certain monetary assessments. Eskridge appeals. We affirm.
On appeal, Eskridge raises two issues, both relating to evidentiary rulings made by the district court during a trial which extended over several weeks: (1) the district court erred in admitting, over objection, "co-conspirator hearsay" by government witness David Andrew Sump ("Sump"), and (2) the district court erred by admitting so-called "non-scientific expert testimony" by government witness Harold Clouse ("Clouse"), an FBI document expert. We find no error.
By the second superceding indictment, Eskridge was charged, inter alia, with conspiracy to possess and distribute drugs in the Tulsa area from 1991 to the date when the indictment was returned, namely February 26, 1999. Sump was permitted to testify about a meeting he had with Eskridge in 1995 at the latter's residence in Tulsa, Oklahoma, which residence was that of Eskridge's mother, as well. Several others were present at Eskridge's residence on that occasion. As indicated, the district court, over objection, allowed Sump to testify as to events occurring at that time and place. Sump testified, inter alia, that shortly prior thereto he and others had transported drugs from California to Tulsa and that he first met, or at least saw, Eskridge at the time and place of delivery in Tulsa. Sump testified as to certain face-to-face conversations he had with Eskridge at his residence and also testified as to certain comments made by others in attendance when Eskridge was out of earshot, so to speak, to the effect that Eskridge was in charge of the "Tulsa operation." Sump also testified that on that particular occasion, Eskridge escorted and unidentified person out of the room and that he, Sump, "heard" Eskridge administer a severe beating to the other person who apparently had failed to turn over certain drug monies.
Apparently all concerned recognize the exception to the hearsay rule which permits the statements of a co-conspirator made in furtherance of a conspiracy to be used against a defendant co-conspirator who was not present when the statements were made. Statements made by Eskridge to, or overheard, by Sump, are not hearsay. Fed. R. Evid. 801(d)(2)(E). Statements made by others when Eskridge was not physically present would appear to us to come within the hearsay exception. The testimony regarding the beating administered by Eskridge to an underling who had not accounted for monies due Eskridge was not, in our view, hearsay.
As concerns witness Clouse, he merely identified certain "records" obtained during the police investigation of the conspiracy as being "consistent" with and in the "format" of an "illegal drug organization's record keeping." Clouse was examined closely as to his background, training and general qualifications to make such examinations and form opinions in connection therewith. We find no error on the part of the district court in permitting such line of authority. In permitting Clouse to so testify, the district court did not offend Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) or Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Further, neither Sump nor Clouse were, in our view, "key" witnesses in this case. Their testimony merely tended to corroborate testimony of others. The government called some thirty one witnesses, which included co-conspirators, and some indicted co-conspirators, who directly implicated Eskridge in what the government aptly describes as "a large scale poly drug conspiracy spanning several years."
In the second superceding indictment Woods, also known as "Kool-Aid," was charged in Count I with conspiring with McCalister, Iiland, Busby, Eskridge and others to possess controlled substances with an intent to distribute in violation of 21 U.S.C. § 846. The "Objects of the Conspiracy" as set forth in Count I were to possess and distribute cocaine and cocaine base, methamphetamine, marijuana and heroin. One hundred thirty-two "overt acts" were also set out in the indictment. In Count XI of the indictment Woods and one Arnold Ray Simon were charged with distributing on June 6, 1996, a quantity of heroin in violation of 21 U.S.C. §§ 841(a)(1); 841(b)(1)(C). As indicated Woods was jointly tried with McCalister, Iiland, and Eskridge, and the jury found him guilty on both counts. The district court sentenced Woods to imprisonment for 216 months on each count to run concurrently. Woods was also sentenced to five years supervised release. He appeals from the convictions and sentence imposed thereon.
In his opening brief in this court counsel urges eight grounds for reversal. They are as follows: (1) There was a prejudicial variance between the allegations in the indictment and the evidence adduced at trial in that the indictment charged one conspiracy and the evidence adduced at trial indicated there were in fact seven conspiracies, and that Woods was only involved in one of the seven; (2) The district court erred in refusing to strike the improper co-conspirator statement of Iiland after Iiland's motion for acquittal on the conspiracy charge was granted by the district court; (3) The government's witnesses, Christopher Peters, an F.B.I. agent, and Dale Francetic, a Tulsa police officer, were allowed to remain in the courtroom during the trial, which violated Fed. R. Evid. 615; (4) Woods' convictions were based on perjured testimony of Secret Service Special Agent Parkman and witness Pearson; (5) Improper restriction of counsel for Woods in his cross-examination of government witness Timbrook; (6) Cumulative error; (7) Insufficient evidence to support Woods' conviction on Count XI; and (8) The district court misapplied the Sentencing Guidelines in factoring into Woods' base offense level drugs found in Kathy Cooper's home on June 16, 1996, counsel contending that there was insufficient evidence to show that Woods was in constructive possession of such. Our study of the record and the briefing on these eight matters indicates that there is no reversible error in connection with any. This was a five week jury trial with numerous witnesses being called by the government, which, as above stated, included co-conspirators who, along with others, gave direct testimony involving Woods and the other defendants. Thus, viewed in context, we conclude there was no error.
By supplemental brief, Woods, through counsel, draws to our attention to Apprendi Jr. v. New Jersey, 530 U.S. 466, decided June 26, 2000. Counsel argues that under Apprendi, Counts I and XI in the indictment were fatally defective under the Fifth and Sixth Amendments because neither identified both the precise drug involved and the quantity thereof. Counsel further argues that, in any event, should we affirm Woods' convictions, the sentences imposed should be vacated and the case remanded for re-sentencing after the district court has considered the possible applicability of Apprendi.
In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." 526 U.S. at 252-253 (opinion of STEVENS, J.); see also Id. at 253 (opinion of SCALIA, J.).
Id. at 455 (emphasis added).
Counsel also argues that under Apprendi, we must, at the very least, vacate the sentence imposed and remand for re-sentencing in accord with Apprendi. As we understand it, counsel does not really argue that the district court committed reversible error in sentencing Woods to imprisonment for 216 months, which was within the guideline range of 188 to 235 months. Imprisonment for 216 months (18 years) does not exceed the statutory maximum term set forth in either 21 U.S.C. § 841(b)(1)(A) (life) or 21 U.S.C. § 841(b)(1)(C) (20 years). Rather, counsel argues that the district court's imposition of a five year supervised release on both Count I and XI, to run concurrently, offends Apprendi. In this regard, 21 U.S.C. § 841(b)(1)(A) provides, inter alia, that in the absence of a prior conviction, the district court in sentencing a person thereunder shall impose a term of supervised release "of at least five years." 21 U.S.C. § 841(b)(1)(C) provides, inter alia, that in the absence of any prior conviction, the district court in sentencing a person thereunder, shall impose a term of supervised release "of at least three years." As indicated, the district court imposed a term of supervised release of five years on each count which is consistent with 21 U.S.C. § 841(b)(1)(C), which mandates a term of supervised release "of at least three years." In other words, it may be more than three years. In this regard, see our recent case of United States v. Heckard, 238 F.3d 1222 (10th Cir. 2001), where we held "that § 841(b)(1)(C) is not restricted by U.S.S.G. § 5(D)1.2(a) or [18 U.S.C.] § 3583(b)(2) from establishing terms of supervised release greater than three years."
Michael McCalister was jointly tried with Iiland, Woods, and Eskridge and was convicted by the jury of conspiracy to possess with an intent to distribute controlled substances in violation of 21 U.S.C. §846. He was later sentenced to imprisonment for 290 months, supervised release for five years and $14,000 in fines. He now appeals his conviction and the sentence imposed thereon.
On appeal, counsel's principal argument is that there is insufficient evidence to support the jury's verdict that he was involved in any conspiracy and thus did not violate 21 U.S.C. §846, as charged. Our reading of the record indicates otherwise.
Counsel points out that of the government's thirty one witnesses, twenty four offered no testimony concerning McCalister, that only seven of the government's witnesses mentioned McCalister and that only two of these witnesses, namely Marque Greene and Charles Hudson, testified directly as to any drug activity on the part of McCalister.
As indicated, the second superseding indictment charged seventeen defendants with various and sundry drug offenses. In Count 1 of that indictment McCalister and fourteen of his co-defendants were charged with conspiring from 1991 to the date of the indictment (1999) with each other, "and with others, both known and unknown to the Grand Jury, to commit offenses against the United States in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(A), namely possession of controlled substances, with intent to distribute and distribution of controlled substances and other such offenses as set forth below, all in violation of Title 21, United States Code, Section 846 as follows . . . ."
It is the government's position that Count 1 charged a "large scale" drug conspiracy extending from 1991 to 1999 in the Tulsa, Oklahoma area with drugs being brought form California and Mexico to Tulsa for distribution. As concerns McCalister, the government contends that its evidence indicated that McCalister became a part of that conspiracy in 1994 and continued to be a member thereof until 1999. Counsel for McCalister, however, suggests that there is insufficient evidence of any participation by McCalister in such conspiracy, and, alternatively, that in about 1997 McCalister withdrew from the conspiracy when he voluntarily went to the FBI and became an informant. Counsel also argued that any participation by McCalister in drug sales in Tulsa was the result of entrapment. We are in accord with the government's analysis of the record.
A conspiracy is a combination of two or more persons acting in concert to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. The evidence must show circumstances to warrant a jury finding that the conspirators had a unity of purpose or a common design and understanding. A co-conspirator need not know of the existence or identity of the other members of the conspiracy or the full extent of the conspiracy. The agreement need not be shown to have been explicit. It can be inferred from the facts and circumstances of the case. Our examination of the evidence, with a view most favorable to the government, leads us to conclude that there is substantial proof, direct or circumstantial, together with reasonable inferences to be drawn therefrom, to sustain the burden of proving that the appellants were guilty of intentionally participating in a conspiracy to rig bids beyond a reasonable doubt.
Id. at 450-451 (citations omitted).
As we did in Metropolitan, our study of the present record viewed in a light most favorable to the government, convinces us that the direct and circumstantial evidence, together with reasonable inferences therefrom, is sufficient to support the jury's verdict that McCalister conspired as charged. Evidence that McCalister "withdrew" from any conspiracy was sparse, and would not expiate his prior participation therein. The further suggestion that McCalister was somehow entrapped into drug sales was resolved by the jury acting pursuant to appropriate instructions on the matter.
Counsel next argues that the district court erred in denying McCalister's pre-trial request that he be tried separately. As indicated, McCalister was jointly tried with three other defendants, Iiland, Woods, and Eskridge. Counsel suggests that because the evidence against McCalister was so slight, and the evidence against the other three defendants was so strong, that he was prejudiced be being tried with the others. We are not persuaded.
Federal Rules of Criminal Procedure, 8(b) permits joinder of two or more defendants in the same indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." The grant or denial of a motion for severance is a matter resting within the sound discretion of the district court. United States v. Holland, 10 F.3d 696, 698 (10th Cir. 1993). The mere fact that one co-defendant may be less culpable than his co-defendants, is not, standing alone, sufficient grounds to establish abuse of discretion. United States v. Williams, 45 F.3d 1481, 1484 (10th Cir. 1995). While more witnesses may have testified against the other defendants, there was still considerable testimony involving McCalister.
McCalister was represented at trial by the Federal Public Defender's Office, he being indigent and unable to retain counsel. Apparently friction developed between McCalister and his counsel and motions were filed to allow counsel to withdraw from the case. At a pretrial conference, the district court denied such request, and at trial the Defender's Office presented a vigorous defense. On appeal, counsel, no longer the Public Defender's Office, argues that the district court in denying the requests that trial counsel be permitted to withdraw from the case violated McCalister's Sixth Amendment rights and constituted reversible error. We disagree.
Counsel next challenges the admission at trial of the wiretap evidence, claiming that the "necessity" therefore was not demonstrated. This argument has previously been considered and rejected by us in Busby's appeal.
Counsel's final argument is that, at sentencing, the district court erred in estimating the amount of drugs involved in determining relevant conduct. However, it would appear that there was no objection to the Probation Office's computation thereof as such was contained in the presentence report. In this connection, "[w]e have repeatedly held that if a defendant fails to object to his presentence report, he waives his right to challenge the district court's reliance on it, unless the district court's decision to do so amounts to plain error." United States v. Ivy, 83 F.3d 1266, 1297 (10th Cir. 1996). Counsel has not demonstrated plain error.
2. Honorable Richard H. Mills, Senior District Judge, United States District Court for the Central District of Illinois, sitting by designation.
1.Subsequent to oral argument, Eskridge filed with this Court a pro se reply brief and two pro se supplemental briefs. In his pro se reply brief Eskridge challenges the government's statement of the facts in several particulars. In his supplemental briefs Eskridge raises, inter alia, the Apprendi issue (Apprendi v. New Jersey, 530 U.S. 466, 2000), which is discussed by us in Woods' appeal, infra. We are not persuaded by any of the matters sought to be raised in the supplemental briefs, some of which are raised for the first time.
[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.
3. We are not persuaded by counsel's further argument that if the district court had held a "detention" hearing, which McCalister had twice waived, he would have been released from pre-trial detention and could have earned money and retained counsel.


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State and local landmarks, historic preservation, zoning, or building codes, relating to architectural works protected under section 102(a)(8).
Notwithstanding the provisions of section 303, and in accordance with chapter 14, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title. With respect to sound recordings fixed before February 15, 1972, the preemptive provisions of subsection (a) shall apply to activities that are commenced on and after the date of enactment of the Classics Protection and Access Act. Nothing in this subsection may be construed to affirm or negate the preemption of rights and remedies pertaining to any cause of action arising from the nonsubscription broadcast transmission of sound recordings under the common law or statutes of any State for activities that do not qualify as covered activities under chapter 14 undertaken during the period between the date of enactment of the Classics Protection and Access Act and the date on which the term of prohibition on unauthorized acts under section 1401(a)(2) expires for such sound recordings. Any potential preemption of rights and remedies related to such activities undertaken during that period shall apply in all respects as it did the day before the date of enactment of the Classics Protection and Access Act.
Nothing in this title annuls or limits any rights or remedies under any other Federal statute.
The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder.
On or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, all legal or equitable rights that are equivalent to any of the rights conferred by section 106A with respect to works of visual art to which the rights conferred by section 106A apply are governed exclusively by section 106A and section 113(d) and the provisions of this title relating to such sections. Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or statutes of any State.
activities violating legal or equitable rights which extend beyond the life of the author.
Section 301, one of the bedrock provisions of the bill, would accomplish a fundamental and significant change in the present law. Instead of a dual system of “common law copyright” for unpublished works and statutory copyright for published works, which has been the system in effect in the United States since the first copyright statute in 1790, the bill adopts a single system of Federal statutory copyright from creation. Under section 301 a work would obtain statutory protection as soon as it is “created” or, as that term is defined in section 101 when it is “fixed in a copy or phonorecord for the first time.” Common law copyright protection for works coming within the scope of the statute would be abrogated, and the concept of publication would lose its all-embracing importance as a dividing line between common law and statutory protection and between both of these forms of legal protection and the public domain.
1. One of the fundamental purposes behind the copyright clause of the Constitution, as shown in Madison’s comments in The Federalist, was to promote national uniformity and to avoid the practical difficulties of determining and enforcing an author’s rights under the differing laws and in the separate courts of the various States. Today when the methods for dissemination of an author’s work are incomparably broader and faster than they were in 1789, national uniformity in copyright protection is even more essential than it was then to carry out the constitutional intent.
2. “Publication,” perhaps the most important single concept under the present law, also represents its most serious defect. Although at one time when works were disseminated almost exclusively through printed copies, “publication” could serve as a practical dividing line between common law and statutory protection, this is no longer true. With the development of the 20th-century communications revolution, the concept of publication has become increasingly artificial and obscure. To cope with the legal consequences of an established concept that has lost much of its meaning and justification, the courts have given “publication” a number of diverse interpretations, some of them radically different. Not unexpectedly, the results in individual cases have become unpredictable and often unfair. A single Federal system would help to clear up this chaotic situation.
3. Enactment of section 301 would also implement the “limited times” provision of the Constitution [Const. Art. I, § 8, cl. 8], which has become distorted under the traditional concept of “publication.” Common law protection in “unpublished” works is now perpetual, no matter how widely they may be disseminated by means other than “publication”; the bill would place a time limit on the duration of exclusive rights in them. The provision would also aid scholarship and the dissemination of historical materials by making unpublished, undisseminated manuscripts available for publication after a reasonable period.
4. Adoption of a uniform national copyright system would greatly improve international dealings in copyrighted material. No other country has anything like our present dual system. In an era when copyrighted works can be disseminated instantaneously to every country on the globe, the need for effective international copyright relations, and the concomitant need for national uniformity, assume ever greater importance.
Under section 301, the statute would apply to all works created after its effective date [Jan 1, 1978], whether or not they are ever published or disseminated. With respect to works created before the effective date of the statute [Jan. 1, 1978] and still under common law protection, section 303 of the statute would provide protection from that date on, and would guarantee a minimum period of statutory copyright.
The intention of section 301 is to preempt and abolish any rights under the common law or statutes of a State that are equivalent to copyright and that extend to works coming within the scope of the Federal copyright law. The declaration of this principle in section 301 is intended to be stated in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation of its unqualified intention that Congress shall act preemptively, and to avoid the development of any vague borderline areas between State and Federal protection.
Under section 301(a) all “legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106” are governed exclusively by the Federal copyright statute if the works involved are “works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103.” All corresponding State laws, whether common law or statutory, are preempted and abrogated. Regardless of when the work was created and whether it is published or unpublished, disseminated or undisseminated, in the public domain or copyrighted under the Federal statute, the States cannot offer it protection equivalent to copyright. Section 1338 of title 28, United States Code, also makes clear that any action involving rights under the Federal copyright law would come within the exclusive jurisdiction of the Federal courts. The preemptive effect of section 301 is limited to State laws; as stated expressly in subsection (d) of section 301, there is no intention to deal with the question of whether Congress can or should offer the equivalent of copyright protection under some constitutional provision other than the patent-copyright clause of article 1, section 8 [Const. Art. I, § 8, cl. 8].
As long as a work fits within one of the general subject matter categories of sections 102 and 103, the bill prevents the States from protecting it even if it fails to achieve Federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into the public domain. On the other hand section 301(b) explicitly preserves common law copyright protection for one important class of works: works that have not been “fixed in any tangible medium of expression.” Examples would include choreography that has never been filmed or notated, an extemporaneous speech, “original works of authorship” communicated solely through conversations or live broadcasts, and a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down. As mentioned above in connection with section 102, unfixed works are not included in the specified “subject matter of copyright.” They are therefore not affected by the preemption of section 301, and would continue to be subject to protection under State statute or common law until fixed in tangible form.
The preemption of rights under State law is complete with respect to any work coming within the scope of the bill, even though the scope of exclusive rights given the work under the bill is narrower than the scope of common law rights in the work might have been.
Representatives of printers, while not opposed to the principle of section 301, expressed concern about its potential impact on protection of preliminary advertising copy and layouts prepared by printers. They argued that this material is frequently “pirated” by competitors, and that it would be a substantial burden if, in order to obtain full protection, the printer would have to make registrations and bear the expense and bother of suing in Federal rather than State courts. On the other hand, these practical problems are essentially procedural rather than substantive, and the proposal for a special exemption to preserve common law rights equivalent to copyright in unpublished advertising material cannot be justified. Moreover, subsection (b), discussed below, will preserve other legal grounds on which the printers can protect themselves against “pirates” under State laws.
In a general way subsection (b) of section 301 represents the obverse of subsection (a). It sets out, in broad terms and without necessarily being exhaustive, some of the principal areas of protection that preemption would not prevent the States from protecting. Its purpose is to make clear, consistent with the 1964 Supreme Court decisions in Sears, Roebuck & Co., v. Stiffel Co., 376 U.S. 225 [84 S.Ct. 784, 11 L.Ed.2d 661, rehearing denied 84 S.Ct. 1131, 376 U.S. 973, 12 L.Ed.2d 87], and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 [84 S.Ct. 779, 11 L.Ed.2d 669, rehearing denied 84 S.Ct. 1162, 377 U.S. 913, 12 L.Ed.2d 183], that preemption does not extend to causes of action, or subject matter outside the scope of the revised Federal copyright statute.
The numbered clauses of subsection (b) list three general areas left unaffected by the preemption: (1) subject matter that does not come within the subject matter of copyright; (2) causes of action arising under State law before the effective date of the statute [Jan. 1, 1978]; and (3) violations of rights that are not equivalent to any of the exclusive rights under copyright.
The examples in clause (3), while not exhaustive, are intended to illustrate rights and remedies that are different in nature from the rights comprised in a copyright and that may continue to be protected under State common law or statute. The evolving common law rights of “privacy,” “publicity,” and trade secrets, and the general laws of defamation and fraud, would remain unaffected as long as the causes of action contain elements, such as an invasion of personal rights or a breach of trust or confidentiality, that are different in kind from copyright infringement. Nothing in the bill derogates from the rights of parties to contract with each other and to sue for breaches of contract; however, to the extent that the unfair competition concept known as “interference with contract relations” is merely the equivalent of copyright protection, it would be preempted.
The last example listed in clause (3)—“deceptive trade practices such as passing off and false representation”—represents an effort to distinguish between those causes of action known as “unfair competition” that the copyright statute is not intended to preempt and those that it is. Section 301 is not intended to preempt common law protection in cases involving activities such as false labeling, fraudulent representation, and passing off even where the subject matter involved comes within the scope of the copyright statute.
“Misappropriation” is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as “misappropriation” is not preempted if it is fact based neither on a right within the general scope of copyright as specified by section 106 nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of International News Service v. Associated Press, 248 U.S. 215 (1918) [39 S.Ct. 68, 63 L.Ed. 211], or in the newer form of data updates from scientific, business, or financial data bases. Likewise, a person having no trust or other relationship with the proprietor of a computerized data base should not be immunized from sanctions against electronically or cryptographically breaching the proprietor’s security arrangements and accessing the proprietor’s data. The unauthorized data access which should be remediable might also be achieved by the intentional interception of data transmissions by wire, microwave or laser transmissions, or by the common unintentional means of “crossed” telephone lines occasioned by errors in switching.
The proprietor of data displayed on the cathode ray tube of a computer terminal should be afforded protection against unauthorized printouts by third parties (with or without improper access), even if the data are not copyrightable. For example, the data may not be copyrighted because they are not fixed in a tangible medium of expression (i.e., the data are not displayed for a period or not more than transitory duration).
Nothing contained in section 301 precludes the owner of a material embodiment of a copy or a phonorecord from enforcing a claim of conversion against one who takes possession of the copy or phonorecord without consent.
This language could be read as abrogating the anti-piracy laws now existing in 29 states relating to pre-February 15, 1972, sound recordings on the grounds that these statutes proscribe activities violating rights equivalent to * * * the exclusive rights within the general scope of copyright. * * * Certainly such a result cannot have been intended for it would likely effect the immediate resurgence of piracy of pre-February 15, 1972, sound recordings.
The Department recommended that section 301(b) be amended to exclude sound recordings fixed prior to February 15, 1972 from the effect of the preemption.
The Senate adopted this suggestion when it passed S. 22. The result of the Senate amendment would be to leave pre-1972 sound recordings as entitled to perpetual protection under State law, while post-1972 recordings would eventually fall into the public domain as provided in the bill.
The Committee recognizes that, under recent court decisions, pre-1972 recordings are protected by State statute or common law, and that should not all be thrown into the public domain instantly upon the coming into effect of the new law. However, it cannot agree that they should in effect be accorded perpetual protection, as under the Senate amendment, and it has therefore revised clause (4) to establish a future date for the pre-emption to take effect. The date chosen is February 15, 2047 which is 75 years from the effective date of the statute extending Federal protection to recordings.
Subsection (c) makes clear that nothing contained in Title 17 annuls or limits any rights or remedies under any other Federal statute.
The date of enactment of the Classics Protection and Access Act, referred to in subsec. (c), is the date of enactment of title II of Pub. L. 115–264, which was approved Oct. 11, 2018.
Section 610(a) of the Visual Artists Rights Act of 1990 [Pub. L. 101–650], referred to in subsec. (f)(1), (2)(A), is set out as an Effective Date note under section 106A of this title.
1998—Subsec. (c). Pub. L. 105–298 substituted “2067” for “2047” wherever appearing.
1990—Subsec. (b)(4). Pub. L. 101–650, § 705, added par. (4).
Subsec. (f). Pub. L. 101–650, § 605, added subsec. (f).
1988—Subsec. (e). Pub. L. 100–568 added subsec. (e).
Amendment by section 605 of Pub. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set out as an Effective Date note under section 106A of this title.
Amendment by section 705Pub. L. 101–650 applicable to any architectural work created on or after Dec. 1, 1990, and any architectural work, that, on Dec. 1, 1990, is unconstructed and embodied in unpublished plans or drawings, except that protection for such architectural work under this title terminates on Dec. 31, 2002, unless the work is constructed by that date, see section 706 of Pub. L. 101–650, set out as a note under section 101 of this title.

matches: § 8 § 8 v. v. v. § 705 § 605


text:
be-warnian to beware, R. Ben. 7. v. be-warenian.
be-weallan; p. -weóll, pl. -weóllon; pp. -weallen, To boil away; decoquere :-- Óþ-ðæt þrydda dæ-acute;l sý beweallen till the third part be boiled away, Med. ex Quadr. 1, 3; Lchdm. i. 328, 17 : 8, 10; Lchdm. i. 360, 1.
be-wealwian; p. ode; pp. od To wallow; volutare :-- Swín on ða solu bewealwiaþ swine wallow in the mire, Bt. 37, 4; Fox 192, 29.
be-weardian, -weardigan; part. -weardigende; p. ode; pp. od To ward, protect, keep; custodire; protegere, observare :-- Ðú, Drihten, beweardast us tu, Domine, custodies nos, Ps. Spl. 11, 8. Hálige englas ða dæ-acute;da beweardiaþ holy angels protect the deeds, L. C. E. 4; Th. i. 360, 31. Beweardigende observantes, Ps. Spl. 30, 7.
be-wearp cast, Bt. 7, 2; Fox 16, 25; p. of be-weorpan.
be-weaxan, bi-weaxan; p. -weóx, pl. -weóxon; pp. -weaxen To overgrow, cover over; obducere, obserere :-- Sindon burgtúnas brérum beweaxene [MS. beweaxne] the city-dwellings are overgrown with briers, Exon. 115 b; Th. 443,17; Kl. 31. Scyllum biweaxen overgrown with scales, 60 a; Th. 219, 21; Ph. 310.
be-weddian, -weddigan; p. ede, ode; pp. ed, od To espouse, wed; spondere, despondere :-- Ic beháte oððe ic beweddige [MS. bewedige] spondeo, Ælfc. Gr. 26, 6; Som. 29, 10. Gif he híg his suna beweddap si filio suo desponderit eam, Ex. 21, 9. v. weddian.
be-weddung, e; f. A betrothal, wedding; oppigneratio, connubium :-- Be wífmannes beweddunge of a woman's betrothal, L. Edm. B. titl; Th. i. 254, 1.
be-wefan; p. -wæf, pl. -wæ-acute;fon; pp. -wefen To cover over, envelope; obtexere, obducere :-- Biþ ðæt brægen mid reáman bewefen the brain is covered over with a membrane, Lchdm. iii. 146, 4.
be-wegan; p. -wæg, pl. -wæ-acute;gon; pp. -wegen To cover, cover over, surround; obducere, circumdare :-- Bewegen wælmiste covered with the mist of death, Exon. 87 b; Th. 329, 30; Vy. 42. He hí bewæg mid wuda útan he surrounded them with wood, Bt. 39, 4; Fox 216, 25.
be-wendan; p. -wende; pp. -wended, -wend To turn, turn round or about, convert; vertere, convertere :-- Bewend to ðære menigu conversus ad turbam, Mk. Bos. 5, 30. Se Hæ-acute;lend bewende hyne the Saviour turned himself about, Mt. Bos. 9, 22 : Mk. Bos. 8, 33. Æt sumum cyrre bewend aliquando conversus, Lk. Foxe 22, 32. v. wendan.
be-wenian; p. ede; pp. ed [be, wenian to accustom, draw to one's self, honour] To entertain, take care of; hospitio accipere :-- We wæ-acute;ron hér tela bewenede we were here kindly entertained, Beo. Th. 3646, note; B. 1821. Dryht-bearn Dena duguþa bewenede [MS. and Thorpe's note, 4077; bí werede, B. 2035] a noble offspring of the Danes entertained the knights, 4077, note.
be-weópon wept over, bewailed, Num. 20, 30; p. pl. of be-wépan.
be-weorcean to adorn, Elen. Kmbl. 2045; El. 1024, v. be-wyrcan.
be-weorpan, -wyrpan; ic -weorpe, ðú -wyrpst, he -weorpeþ, -wyrpþ, pl. -weorpaþ; p. -wearp, pl. -wurpon; pp. -worpen. I. to cast, cast down, throw; projicere, dejicere :-- Seó cwén hét [híg] ðam cyninge heáfod ofaceorfan, and bewyrpan on ánne cylle the queen commanded [them] to cut off the king's head, and to cast it into a vessel, Ors. 2, 4; Bos. 45, 33. Hwæt bewearp ðé on ðás gnornunga what has cast thee into these lamentations? Bt. 7, 2; Fox 16, 25. He hæfþ us beworpen on ealra wíta mæ-acute;ste he hath cast us down into the greatest of all torments, Cd. 21; Th. 25, 13; Gen. 393. Ic wæs hér unscildig on pytt beworpen I was thrown here innocent into a dungeon, Gen. 40, 15. II. to cast about or over, cover over, surround; conjicere, supertegere, cingere :-- Hláford, læ-acute;t hine [fíctreów] gyt ðis geár, óþ ic hine bedelfe, and ic hine beweorpe mid meoxe Lord, suffer it [the fig-tree] yet this year, till I dig about it, and cast it about [surround it] with dung, Lk. Bos. 13, 8 : Oft beweorpeþ ánre þecene wundrum gewlitegad often casts over with a covering wondrously adorned, Exon. 128 b; Th. 493, 20; Rä. 81, 34. Hafaþ fægerne eard wætre beworpen it hath a fair dwelling surrounded with water, Runic pm. 28; Kmbl. 345, 8; Hick. Thes. i. 135. DER. weorpan.
be-weotian; p. ode; pp. od To observe, watch over; observare, curæ habere :-- Draca hord beweotode a dragon watched over the hoard, Beo. Th. 4431; B. 2212. v. be-witian.
be-wépan; p. -weóp, pl. -weópon; pp. -wópen To weep, weep over, bewail; flere, deflere, plorare :-- Ic bewépe defleo, Ælfc. Gr. 26, 1; Som. 28, 28. Hí beweópon Aarones forþsíþ they bewailed Adron's death, Num. 20, 30. Wyduwan heora næ-acute;ron bewópene viduæ eorum non plorabantur, Ps. Lamb. 77, 64 : Ors. 2, 8; Bos. 51, 41.
be-wépnian to unweapon, disarm, L. C. S. 61, titl; Th. i. 408, 16. v. be-wæ-acute;pnian.
be-werenes, -ness, e; f. [be-wered forbidden] A forbidding; prohibitio :-- Óþ bewerenesse to onfónne ðam hálgan gerýne usque ad prohibitionem percipiendi sancti mysterii, Bd. 1, 27; S. 496, 43.
be-werian, bi-werian, -wergan; p. ede, ode; pp. ed, od To defend restrain; defendere, prohibere, tueri :-- Bisceopas godcunde heorda bewarian and bewerian sceolon bishops ought to guard and defend [tueri debent] their spiritual flocks, L. C. E. 26; Wilk. 133, 22; Th. i. 374, 25. Bewerede coercuit, Cot. 56. Bewered prohibitus, Bd. 1, 27; S. 493, 10. Bewerode defendit, Ex. 2, 17. Bewerod prohibitus, Ælfc. Gl. 63; Som. 68, 104. DER. werian.
be-werigend, es; m. A defender; protector, Ps. Spl. 27, 11.
be-werung, e; f. A defence, fortification; tutamen :-- Bewerung strang a strong defence, Scint. 64.
be-wícian; p. ode; pp. od To encamp; castra metari :-- Ælfréd cyning bewícode betuh ðám twám hergum king Alfred encamped between the two armies, Chr. 894; Gib. 92, 21.
be-wimman; g. -wimmannes; f. [be-wimmen, Wrt. Voc. 72, 36] A niece; neptis, Som. Lye. v. wimman.
be-windan, bi-windan; p. -wand, -wond, pl. -wundon; pp. -wunden; v. a. To wind or bind around or about, entwine, wrap, enwrap, encircle, surround, wind, turn; amplecti, involvere, cingere, circumdare, volvere :-- Hí ísene næglas mid flexe bewundon they wound iron nails round with flax, Ors. 4, 1; Bos. 78, 8. Wæs bewunden was wound round, Andr. Kmbl. 38; An. 19. Wírum bewunden bound round with wires, Beo. Th. 2066; B. 1031. Iosep bewand hyne mid clæ-acute;nre scýtan Ioseph involvit illud in sindone munda, Mt. Bos. 27, 59 : Lk. Bos. 2, 7 : Bd. 3, 11; S. 536, 9. Geseah heó monnes líchoman mid scýtan bewundenne vidit corpus hominis sindone involutum, Bd. 4, 9; S. 576, 32. Wæs Cristes lof on fyrhþlocan bewunden Christ's praise was entwined within his breast, Andr. Kmbl. 116; An. 58 : Beo. Th. 6283; B. 3146. Bi-wunden entwined, Exon. 69 a; Th. 256, 20; Jul. 234. Sum gæ-acute;stes þearfe móde bewindeþ one wraps his spirit's need in his mind, 79 b; Th. 298, 18; Crä. 87 : Ps. Th. 102, 12. Wæs feorh æðelinges flæ-acute;sce bewunden the prince's soul was wrapped in flesh, Beo. Th. 4840; B. 2424. Mec mon folmum biwond, and mec ðá on þeóstre alegde biwundenne mid wonnum cláðum one with hands enwrapped me, and then laid me in darkness enwrapped in dusky clothes, Exon. 28 b; Th. 87, 9-12; Cri. 1422-1424. He wæs cláðum biwunden he was enwrapped with clothes, 18 b; Th. 45, 27; Cri. 725. Ðæ-acute;r is geat gylden wynnum be-wunden there is the golden gate encircled with joys, Cd. 227; Th. 305, 21; Sat. 650 : Beo. Th. 6097; B. 3052. He is wuldre biwunden he is encircled with glory, Exon. 65 b; Th. 241, 34; Ph. 666. Ða þreó wæter steápe stánbyrig streámum bewindaþ the three waters surround lofty cities of stone with their streams, Cd. 100; Th. 133, 18; Gen. 2212. Hwonne us líffreá tíre bewinde when the Lord of life may surround us with honour, Exon. 8 a; Th. 3, 1; Cri. 29. Ic eom bewunden mid wuldre I am surrounded with glory, 108 a; Th. 412, 18; Rä. 31, 2. He geseah Sennera feld sídne bewindan he saw Shinar's field wide winding, Cd. 205; Th. 253, 28; Dan. 602. Abraham bewand ða hleóðorcwydas on hige sínum Abraham turned the revelations in his mind, 107; Th. 140, 34; Gen. 2337.
be-wiste governed, presided, Gen. 24, 2; p. of be-witan.
be-witan; ic. he -wát, ðú -wást, pl. -witon; p. -wiste, pl. -wiston; pp. -witen; v. trans. [be near, witan to know, see, take care of] To overlook, watch over, superintend, preside, govern, administer; præesse, administrare :-- Ðe ealle his þing bewiste qui præerat omnibus quæ habebat, Gen. 24, 2. Ne miht ðú leng tún-scíre bewitan jam non poteris villicare, Lk. Bos. 16, 2 : Ex. 3, 7 : 5, 14 : Ors. 2, 2; Bos. 41, 33 : 2, 4; Bos. 43, 21 : 6, 37; Bos. 132, 21. Fæder ealle gesceafte bewát the father watches over all creatures, Exon. 128 a; Th. 492, 5; Rä. 81, 9. To bewitanne, Gen. 39, 4.
be-witian, -witigan, -weotian; p. ode; pp. od To observe, take care of, administer, perform; observare, curæ habere, exsequi, peragere :-- Ne mágon hí tunglu bewitian they may not observe the heavenly bodies, Exon. 89 b; Th. 335, 31; Gn. Ex. 40. Hí oft bewitigaþ sorgfulne síþ they often perform a sorrowful journey, Beo. Th. 2861; B. 1428 : Exon. 12 b; Th. 22, 18; Cri. 353.
be-wlát looked, beheld, Cd. 142; Th. 177, 6; Gen. 2925; p. of be-wlítan.
be-wlátian; p. ode; pp. od To see, look, behold; videre, conspicere :-- Eágan ðíne geseón oððe bewlátion [MS. bewlatiun] efnysse oððe rihtwísnesse oculi tui videant æquitates, Ps. Lamb. 16, 2. To gescyldnysse mínre beseoh oððe bewláta ad defensionem meam conspice, 21, 20.
be-wlátung, e; f. Show, sight, pageant; spectaculum. DER. be-wlátian.
be-wlítan; p. -wlát, pl. -wliton; pp. -wliten To look, behold; spectare, respicere :-- Se eádega bewlát rinc ofer exle the happy man looked over his shoulder, Cd. 142; Th. 177, 6; Gen. 2925.
be-wópen bewailed, Ors. 2, 8; Bos. 51, 41; pp. of be-wépan.
be-worht made, built, covered, Jos. 2, 1; pp. of be-wyrcan.
be-worpen cast, cast down, thrown, cast about, surrounded, Cd. 21; Th. 25, 13; Gen. 393 : Gen. 40, 15 : Runic pm. 28; Kmbl. 345, 8; Hick. Thes. i. 135; pp. of be-weorpan.
be-wræ-acute;con exiled, sent forth, Cd. 189; Th. 235, 12; Dan. 305; p. pl. of be-wrecan.

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


text:
Present, Campbell, C.J., and Holt, Hudgins, Gregory, Chinn and Eggleston, JJ.
1. LIMITATION OF ACTIONS — Pleading — Sufficiency — Statute Not Relied on in Answer — Case at Bar. — In the instant case, a suit for an accounting, appellant contended that the court erred in not sustaining his plea of the statute of limitations. The only reference to the question of limitations was contained in appellant's answer, wherein he stated that the transactions referred to in the bill would be barred by the statute of limitations had there been no certain contract, designated as "Exhibit A." Appellant, however, relied on said contract in the lower court.
Held: That there was no merit in the assignment of error for the reason that no proper plea of the statute of limitations was filed by appellant, nor was the question of the statute urged before the lower court.
2. LIMITATION OF ACTIONS — Pleading — Equity — Raising Question in Answer. — While it is true that the same strictness of pleading is not required in equity as at law, and the question of limitations may be raised in general terms in the answer, it is nevertheless incumbent upon the defendant to apprise the plaintiff that the statute is relied upon, and the better practice is to allege such facts as indicate that the statute is applicable.
3. LIMITATION OF ACTIONS — Pleading — Necessity — Question Cannot Be Raised for First Time in Appellate Court. — The statute of limitations cannot be relied upon for the first time in the Supreme Court of Appeals.
4. JURISDICTION — Appeal and Error — Objection May Be Made for First Time on Appeal. — The question of jurisdiction may be taken advantage of for the first time in the appellate court.
5. JURISDICTION — Equity Jurisdiction — Accounts and Accounting — Establishing Legal Rights and Administering Legal Remedies — Case at Bar. — In the instant case, a suit for an accounting, a decree was entered in favor of complainants for a stated amount and defendant assigned as error the failure of the court to dismiss complainants' bill on the ground that the complainants had an adequate remedy at law.
Held: That the bill set forth sufficient matter to warrant the enquiry of a commissioner upon the question of an accounting, a basis of equity jurisdiction, and the court having acquired jurisdiction of the parties, it might go on to a complete adjudication of the cause, even to the extent of establishing legal rights and administering legal remedies.
6. JURISDICTION — Equity Jurisdiction — Accounts and Accounting. — Accounting between parties has always been the basis for equity jurisdiction.
7. ADEQUATE REMEDY AT LAW — Exceptions to Rule — Concurrent Jurisdiction of Equity and Law. — The existence of a remedy at law cannot deprive courts of equity of jurisdiction in a matter that comes within the scope of their elementary jurisdiction.
8. JURISDICTION — Equity Jurisdiction — Retention of Jurisdiction Once Acquired — Retention for Complete Relief. — Where some phase of the case alleged in a bill in chancery presents a good ground for equitable relief, and the court has acquired actual jurisdiction of all the parties, or of the res, necessary for the granting of some of the equitable relief to which the allegations of the bill entitle the complainant, a court of chancery may go on to a complete adjudication of the cause, even to the extent of establishing legal rights and administering legal remedies, which would otherwise be beyond the scope of its authority.
9. MASTER IN CHANCERY — Weight Due Commissioner's Report Approved by Chancellor. — A report of a commissioner which has been confirmed by the chancellor is entitled to great weight.
Appeal from a decree of the Circuit Court of the city of Richmond. Decree for complainants. Defendant appeals.
H. Carter Redd and Smith Gordon, for the appellant.
B. H. Turnbull and Willis D. Miller, for the appellees.
This suit was instituted by Mary Brown and Benjamin Brown against Edward Shield, for the purpose of ascertaining the true statement of account between the parties, due by reason of their business relations which began in the year 1914 and continued to the year 1933.
The bill alleges that numerous business transactions were had between the parties, and while not as specific as it might be, it sufficiently sets forth the various transactions consummated. The bill was filed on the 8th day of May, 1933, the cause matured for hearing, and the bill taken for confessed at the second June Rules, 1933. On the 31st day of July, 1933, a decree of reference was entered, directing the commissioner in chancery to enquire into and report in what amount, if any, the defendant was indebted to complainants. Before the execution of this decree, defendant, on the 1st day of August, 1933, obtained leave of court to file his answer. The answer denied the allegations of the bill and affirmatively set up the defense that on the 1st day of November, 1932, the complainants, by a written agreement, had settled all matters in controversy between the parties.
After an exhaustive hearing, the commissioner filed his report setting forth that Shield was indebted to complainants in the sum of $6,967.28. Upon exception to the report, the chancellor reduced the amount of interest found by the commissioner and entered a decree against Shield in the principal sum of $6,590.30.
It is assigned as error that the court erred in not sustaining respondent's plea of the statute of limitations.
"This Respondent further answers and says that the transactions and matters referred to in Paragraph 1, 2, 3 and 4 of the Bill are not only closed transactions, as set forth in said contract, but are transactions which are barred by the Statute of Limitation had there been no such contract as 'Exhibit A' herewith."
That respondent did not rely the statute of limitations in the lower court is evidenced by the fact that he did rely upon the alleged contract designated as "Exhibit A."
While it is true that the same strictness of pleading is not required in equity as at law, and the question of limitations may be raised in general terms in the answer, it is nevertheless incumbent upon the defendant to apprise the plaintiff that the statute is relied upon, and the better practice is to allege such facts which indicate that the statute is applicable. Tazewell's Ex'r v. Whittle's Adm'r, 13 Gratt. (54 Va.) 329, 344.
There is in the language contained in the answer no intimation that the statute of limitations would be relied upon. As we view the record, the question of limitations has been relied upon for the first time in this court. The issue is presented too late, even if there were any merit in it.
The next assignment of error is that the court erred in not dismissing complainant's bill or transferring the cause to the law side of the court.
This assignment raises for the first time the question of jurisdiction. It is virtually conceded by counsel for Shield that no motion was made to transfer the cause to the law side of the court; that no question of jurisdiction was raised in the lower court. The main reliance of defendant is found in the contention, that upon the face of the bill it appears that complainants had a complete remedy at law, and therefore, equity is without jurisdiction.
It has been repeatedly held by this court that the question of jurisdiction may be taken advantage of for the first time in the appellate court. Boston Blower Co. v. Carman Lumber Co., 94 Va. 94, 26 S.E. 390.
Without setting forth the bill of complaint in its entirety, we deem it sufficient to state that the bill sets forth sufficient matter to warrant the enquiry of a commissioner upon the question of an accounting between the parties. Much of the enquiry was devoted to the books of account kept by the defendant. The transactions between the parties were complicated and covered a long period of years; all the parties were people well advanced in years, and the report of the commissioner shows that only after diligent search and enquiry was it possible to reach a conclusion in the matter.
"There are many and varied transactions had between the plaintiffs and defendant dating from 1913 to 1934 as shown by the evidence, (R., p. 110) (Mary Brown): Q. 'You have been borrowing money from him for twenty years?' A. 'It seems so,' and allegations of the bill, paragraph four, page four; and it is evident the plaintiffs do not know what has occurred or what they owe. Their allegations and evidence deals in generalities and unfortunately the defendant, 84 years old, and nearly blind, could not, on account of his advanced age and physical and mental condition, give much assistance to his attorney in his case. * * * The transactions are as stated in the bill and shown by the evidence, numerous and varied, commencing prior to 1915. There are notes and accounts due defendant by plaintiffs for the purchase of wood, land, mules, saw outfit, truck, etc. The transactions are too numerous to detail, some of them with the brother-in-law of Brown, his sister and some other members of the family at the request of the Browns and for them, in all of which Mr. Shield is advancing and putting up money for them, even paying taxes and insurance."
[6, 7] Accounting between parties has always been the basis for equity jurisdiction. "Granting it to be true, as contended, that appellee had a complete and adequate remedy at law, it is equally true that the existence of a remedy at law cannot deprive courts of equity of jurisdiction in a matter that comes within the scope of their elementary jurisdiction." Hull v. Watts, 95 Va. 10, 13, 27 S.E. 829, 830.
"Where some phase of the case alleged in a bill in chancery presents a good ground for equitable relief, and the court has acquired actual jurisdiction of all the parties, or of the res, necessary for the granting of some of the equitable relief to which the allegations of the bill entitle the complainant, a court of chancery may go on to a complete adjudication of the cause, even to the extent of establishing legal rights and administering legal remedies, which would otherwise be beyond the scope of its authority. In each such case the court is vested with a sound discretion to determine upon the facts and circumstances of the particular case, whether it is better to relegate the parties to a court of law for the establishment of their legal rights and the administration of legal remedies, or to go on and end the litigation by giving complete relief in the chancery cause. Walters v. Farmers Bank, 76 Va. 12, 20; Shaw v. G. B. Beaumont Co., 88 N.J. Eq. 333, 102 A. 151, 2 A.L.R. 122. But generally speaking, in such a case it will not send the parties back to a court of law, but will retain jurisdiction for all purposes, and do complete justice between the parties. This is true even where the proof may show that the complainant is not entitled to the equitable relief prayed, or that subsequent to the filing of the bill need for equitable relief has ceased to exist."
In our opinion the above rule is the proper one to apply in this case.
It would serve no good purpose to prolong this opinion by a review of the evidence. It is replete with contradictions. The report of the commissioner has been confirmed by the learned chancellor, and the settled law is that this action is entitled to great weight.
"In the face of the commissioner's conclusion, approved by the court, we would not be justified in reversing the judgment, unless it clearly appears that the commissioner has erred. The consistent holding of this court has been to attach great weight to the findings of a special commissioner whose report has been confirmed by the trial court."
See Stimpson v. Bishop, 82 Va. 190; Boston v. Shackelford, 162 Va. 733, 175 S.E. 625 Clevinger v. County School Board, 139 Va. 444, 124 S.E. 440.
Upon the whole case, we are of opinion that appellant has not been prejudiced by the decree of which he is complaining.
My views of this case are so different from those expressed in the majority opinion, I deem it necessary to restate the facts.
The action of the trial court in overruling the demurrer to the bill can be sustained, if at all, only on the theory that during a period of more than 20 years there had been numerous transactions between the parties, and that the accounts had been so confused and complex, that the aid of a court of equity was necessary to ascertain the true status of affairs. The prayer is "that a true statement of accounts be had between your complainants and the defendants; that should said accounting show that defendant is indebted to complainants in any amount, that judgment be given for said amount."
In view of these allegations and prayer, we would expect to find in the commissioner's report a statement of debits and credits. While the commissioner's report in this case refers to several transactions between the parties, the findings are restricted to only one item; namely, the alleged failure of the Browns to receive full consideration for a note bearing date August 13, 1919, payable to Edward Shield in the sum of $4,128. Mary Brown testified that she received $900 of this amount, and that she had been incorrectly charged with the difference, or $3,228. The commissioner, on Mary's Brown's uncorroborated testimony, found that she was correct in this statement, and the trial judge entered judgment for her and her husband, against Shield, for $6,590.30, which included interest from August 13, 1919, until the date of judgment.
I cannot concur in this conclusion for the following reasons: (1) Mary Brown is contradicted by the note and deed of trust executed by her, and her husband, at the time. (2) By the positive testimony of J. M. Turner, who acted as her attorney, and the attorney for Shield at the time the note and deed of trust were prepared. (3) By the testimony of Shield.
While Shield could not recall the full consideration that he had given the Browns for the $4,128 note, and deeds of trust, he did state that it included the $900 which Mary Brown admitted she received, and the purchase price of a truck, the exact amount he could not remember. He did not keep an accurate set of books, and his books didn't show any consideration for this note. Mary Brown produced a printed form of a negotiable note, with the amount, date, and payee blank, but signed by her and Benjamin Brown. She stated positively that this was the note signed by her and her husband in August, 1919, and which she had left with Shield for him to fill in the exact sum which he was to advance her in the purchase of some cord wood; that upon her request in 1932, Shield had returned this note, with some other papers, to her. It was convincingly established that this form of note was not printed until 1920. The exhibit, instead of corroborating Mary Brown, thus clearly showed that she was mistaken.
Even if we disregard the written evidence which contradicts Mary Brown, the positive testimony of Mr. Turner, that he prepared the $4,128 note, as well as the deed of trust securing it, and that Mary Brown and her husband executed the same in his presence, and accept Mary Brown's testimony on the subject as true; still she is not entitled to recover on this item, for the following reasons. She admitted that in 1921, she and her husband owed Shield $4,400 made up of the following items: The $900 obtained from Shield on August 13, 1919, and $3,500 evidenced by several other notes, with interest on $3,000 from August 4, 1915, and on $500 from January 9, 1917, payments of which were secured by three deeds of trust, in which she and her husband conveyed to J. M. Turner, as trustee, 11.9 acres of land located on the Richmond-Petersburg turnpike, Chesterfield County, Virginia.
In April of that year, that is 1921, she, her husband, and Mr. Shield, went to Mr. Turner's office, and there she informed him that she could not pay the indebtedness, and joined in Shields' request, to Mr. Turner, to sell the land under the deed of trust. Acting on this request Mr. Turner sold the property at public auction, at which sale Shield became the purchaser for $5,000, which sum was not sufficient to pay the principal and interest at that time due and owing to Mr. Shield. Turner testified, and it is not denied, that Mary Brown had decided to go into bankruptcy, as she was not able to pay the judgments which had been obtained against her, and other obligations she was owing. The property stood in Shields' name from 1921 to 1923. What happened during the intervening two years, no one stated.
There is filed as an exhibit, a contract bearing date December 24, 1923, which is signed by S. P. B. Stewart, J. H. Blackwell, Mary Brown and Benjamin Brown. In this contract Stewart and Blackwell agreed to consummate the purchase from Shield of the 11.9 acres, for the sum of (about) $12,500. Stewart and Blackwell were to divide the property into streets and lots, and offer it for sale as a subdivision. They were to receive one-half the profits, and to pay the other one-half to Mary and Benjamin Brown. This contract was performed. Mary and Benjamin Brown received as their share of the profits $3,325.77, and in addition 20 lots subject to liens totaling $2,264.22.
In October, 1925, Stewart and Blackwell made a complete report of their transaction in the sale of this property. The report shows that Mary Brown had objected to the amount paid Shield, and that upon this being called to Shield's attention, he had adjusted the matter by returning to Mary Brown $218.
When Stewart and Blackwell became interested in the property, title was examined, and it seems that the title examiner reported that Mr. Turner had made some mistake in the deed, by which he, as trustee, had conveyed the property to Shield. Turner testified that he had sold the property under the fourth deed of trust held by Shield dated August 13, 1919, securing the payment of the note of $4,128; that when this mistake was called to his attention he explained the matter to Mary and Benjamin Brown, and that they united with him in executing a deed of correction to Shield, and this deed of correction made specific reference to the $4,128 note; another written document inconsistent with the present oral testimony of Mary Brown.
No attempt was made, by either party to the cause, to explain how they arrived at the amount of the purchase price for which Shield had agreed to sell the 11.9 acres to Mary and Benjamin Brown, through Stewart and Blackwell, except that Shield had agreed to let her repurchase the property for the full amount of the indebtedness which she and her husband owed to him. The only part of the consideration, which she now questions is the $3,228 which she claims she has never received from Shield. In the absence of a specific charge of fraud, clearly and satisfactorily proven, is a court of equity going to permit one party to a contract of sale, ten years after a full and complete settlement has been made, to reopen the sale and fix a different and lower price than that stated in the written contract of sale? The evidence shows that Mary Brown is no fool. She seems to have had numerous business transactions, not only with Shield, but with other people, involving comparatively small amounts. Is it probable that a person accustomed to trade in small sums should make a mistake of as large a sum as $3,228, and let that mistake go for fifteen years without discovering it?
From this point on I will assume that the majority opinion is right in accepting the statement of Mary Brown, and that Shield is indebted to her, and her husband, for $3,228, with interest from August 13, 1919. Still there should be no recovery in this case for the following reasons, and I will base these reasons on Mary Browns own testimony.
She stated that on June 15, 1929, she had another settlement with Shield. This settlement took in "every little odd and end that we owed him." On that date, she and her husband were indebted to him in the sum of $4,500, for which she executed a note secured by a deed of trust on a part of the 11.9 acres of land which she had acquired at the time it was subdivided and sold. She further admits that she failed to pay this note, or any part of it. At Shield's request, the trustee, on September 23, 1932, sold the property under the deed of trust, at which sale it was cried out to Shield for the sum of $2,300.
On the date of sale the sum due Shield was $4,500 plus $518 accumulated interest. The trustee found, and paid back taxes on the property totaling $210.15, which including his expenses of sale, amounted to $343.68. The total of these sums, or $5,361.68, represents the total outlay made by Shield in this transaction. Of course he had title to the lots, and a claim against Mary and Benjamin Brown for the deficiency, which amounts to $3,923.36, as of September 23, 1932, from which he was entitled to a judgment against Mary and Benjamin Brown. The commissioner entirely ignored this obligation, admittedly due to Shield, and this action is now approved in the majority opinion. Shield testified that Mary and Benjamin Brown owed him $1,900, for which in 1930 they gave him a chattel mortgage on two mules, a cut-off saw, and a truck; that this mortgage was subject to a credit of $525, and that the Browns owed him the difference, or $1,375. Mary Brown testified that the balance due on this chattel mortgage was $300. The commissioner disregarded the testimony of Mary Brown and Shield, and allowed Shield nothing on this item.
After the sale, in September, 1932, Shield, under a written contract and lease, permitted Browns to remain in possession of the property with an option to purchase it provided the purchase money was paid on or before October 31, 1933. The lease provided that they should pay $25 per month rental, in advance, and in the event that the Browns exercised their option, and purchased the property, then the amount paid as rent should be credited on the purchase price. The Browns failed to exercise their option, or pay the monthly rental. Shield notified them to vacate the premises. This they failed to do. He thereupon instituted an action of unlawful detainer. The record is silent as to the outcome of this action. I mention it simply because this seems to be the origin of this whole controversy.
I repeat, the judgment of the trial court is based wholly on the uncorroborated testimony of Mary Brown, and self serving declarations filed therewith, testimony given fifteen years after the transaction in question, contradicted by, and varying terms of four written instruments, executed by her and her husband. Even if her statements be taken as true, the admitted amount of indebtedness which she states is owing by her, and her husband to Shield, is entirely ignored. If they are entitled to recover anything, it is a serious question whether it should be for their benefit, or for the benefit of unpaid creditors.
No one can read the record in this case without reaching the conclusion that Mary and Benjamin Brown are insolvent, and yet the majority opinion approves a judgment for $6,590.30, pronounced in a court of equity against Shield, a solvent person, in favor of Mary and Benjamin Brown, admittedly insolvent, and indebted to Shield, for an amount equal to if not larger than the amount of the judgment.
With due deference to the views of my associates, I am firm in the conviction that the judgment is clearly wrong, and should be reversed.

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David Solomon appeals from a judgment of a single justice of this court denying his petition under G. L. c. 211, § 3. We affirm.
in violation of G. L. c. 266, § 60; operating a motor vehicle with a suspended license, in violation of G. L. c. 90, § 23; possession of burglarious tools, in violation of G. L. c. 266, § 49; and violating a municipal ordinance. Then, on September 26, 2006, a complaint issued from the Woburn Division of the District Court Department charging Solomon with one count of breaking and entering in the daytime with intent to commit a felony, in violation of G. L. c. 266, § 18; and one count of larceny from a building, in violation of G. L. c. 266, § 20. The charges stemmed from an incident that occurred on September 6, 2006, in which, allegedly, Solomon and Marcos Beato broke into a home in Stoneham, sometime between approximately 3 and 3:30 P.M. Neighbors reported to the police seeing a red automobile parked in front of the home at about that time, seeing a man go around to the side of the house while another man remained in the vehicle, and then, after a short time, seeing the man return to the vehicle. Approximately one and one-half hours later, Boston police officers stopped a red automobile being driven by the defendant with Beato as a passenger. Two pillowcases containing property stolen from the home in Stoneham were in the vehicle. The property included jewelry and approximately $6,000 in cash.
Solomon pleaded guilty, on October 2, 2006, to the charges alleged in the Boston Municipal Court complaint. [Note 1] He then moved to dismiss the Woburn District Court complaint on the ground of double jeopardy. A judge dismissed the larceny charge but not the breaking and entering charge, and a Middlesex County grand jury later indicted Solomon on that charge. Solomon then filed a motion in the Superior Court to dismiss the indictment, again on the ground of double jeopardy. The motion was denied, and Solomon subsequently filed at least two other motions, also in the Superior Court, first on the ground of collateral estoppel and then on the basis that the indictment was defective. Each motion was denied on the basis that it was simply an attempt by Solomon to raise anew his double jeopardy argument. Ultimately Solomon filed a G. L. c. 211, § 3, petition in the county court, which a single justice denied without a hearing.
in common," and that a defendant could be "punished for violating both statutes 'unless it [could] be said with certainty that his actions were "so closely related in fact as to constitute in substance but a single crime." ' " Commonwealth v. Cabrera, supra at 828, quoting Commonwealth v. Jones, 441 Mass. 73 , 76 (2004). The court then went on to find that the defendant's actions "were not so related" and "were separated in time and by different forms of conduct." Commonwealth v. Cabrera, supra.
Solomon also contends that the Commonwealth's failure to appeal from the decision on his motion to dismiss the Woburn District Court complaint is relevant to the double jeopardy issue. That is also incorrect. The District Court judge dismissed only the larceny charge (correctly, on the basis that a defendant cannot be convicted of both larceny and receiving stolen property, see Commonwealth v. Cabrera, supra at 828), yet Solomon asserts that the judge's allowance of the motion somehow encompassed both offenses. The Commonwealth, according to Solomon, thus had an obligation to appeal from the decision or accept the dismissal of the complaint in its entirety. Solomon's argument appears to be that the crimes of breaking and entering in the daytime with intent to commit a felony and larceny cannot be charged or punished separately. The argument is without merit; after the larceny charge was dismissed, the charge of breaking and entering properly remained.
stolen property would not violate double jeopardy principles. The single justice therefore did not abuse his discretion or otherwise err in denying Solomon's G. L. c. 211, § 3, petition.
Jessica Noble, Assistant District Attorney, for the Commonwealth.
[Note 1] The docket indicates that Solomon pleaded guilty to receiving stolen property, operating a motor vehicle with a suspended license, and possessing burglarious instruments. It does not indicate, and the parties do not say, what, if anything, became of the alleged municipal ordinance violation.
[Note 2] In Cabrera v. Commonwealth, 449 Mass. 825 (2007), the defendant was charged with breaking and entering in the nighttime with intent to commit a felony, in violation of G. L. c. 266, § 16, rather than breaking and entering in the daytime with intent to commit a felony, in violation of G. L. c. 266, § 18. The difference is not relevant here.
[Note 3] Solomon's other efforts to distinguish the Cabrera case are equally unavailing. He argues that unlike in his case, the Cabrera case involved a motion to suppress. Additionally, he asserts that the Cabrera case is different because in that case the Commonwealth did not present certain evidence to the grand jury. These differences, even if true, are not relevant to the issue of double jeopardy, which is the only issue with which we are here concerned.


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A jury convicted Smith of first-degree reckless homicide while armed as party to a crime and a host of other crimes. Two issues are noteworthy.
Miranda-Edwards issue: Police began questioning Smith while he was in custody. He invoked his right to counsel, so they stopped. They re-initiated questioning (with fresh Miranda warnings) during which Smith said things like “I kind of want a lawyer present, but I don’t want it to look worse.” The court of appeals held this to be an ambiguous or equivocal request for a lawyer, ergo the police were not required to stop questioning Smith, ergo the trial court appropriately denied the motion to suppress his confession. Slip op., ¶17. See Davis v. United States, 512 U.S. 452, 459 (1994) and State v. Jennings, 2002 WI 44, ¶¶ 5, 36, 252 Wis. 2d 228, 647 N.W.2d 142. See lots of On Point posts re same here.
Right to confrontation/ineffective assistance of counsel issue: Smith did not act alone in the shooting. A man named Treadwell was also involved. At Smith’s trial, Treadwell testified that he had already pled guilty, that he was Smith’s friend, and that he had told police what happened on the day in question. When asked if Smith was involved in the shooting, Treadwell answered: “If you all get him you get him on your own . . . No.” Then he stopped answering questions. That certainly didn’t stop the State from asking–14 different times–questions such as: “Do you recall that . . . you identified photographs . . . of Omar Smith, who is the defendant in court here today, and you stated that that is Omar the person who asked you to come with him to do the shooting?” and “Do you recall telling Police Detectives . . . that you shot approximately four or five times and that Omar shot everything and then his gun locked back?” Treadwell sat mute. So did defense counsel (at least until the next day when he moved for a mistrial). The trial court denied the mistrial motion and, with defense counsel’s approval, gave a curative instruction ordering the jury to ignore all of the unanswered questions.
On appeal, Smith challenged trial counsel’s effectiveness arguing that limiting instructions do not “cure” where a nontestifying codefendant’s confession is admitted. See Bruton v. U.S., 391 U.S. 123 (1968) and Cruz v. New York, 481 U.S. 186 (1987). Unmoved, the court of appeals found no prejudice because: (1) this was not a joint trial so Treadwell was not a “co-defendant”; and (2) the trial court struck all of Treadwell’s nonresponsive testimony and ordered the jury not to consider it during deliberations. Slip op., ¶23.
We all know that you can’t unring a bell–let alone 14 bells. Dunn v. U.S., 307 F.2d 883, 886 (5th Cir. 1982) (“one ‘cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.'”) After Treadwell’s testimony that he had already pled guilty to the crime at issue and that Smith was his friend, telling the jury to ignore the State’s numerous, persistent, suggestive questions and Treadwell’s non-responsiveness is like trying to deodorize skunk spray. It’s pretty much impossible. See “How to Remove Skunk Odor” here.
However, the Supreme Court expressly held that squishy “unreliable or unfair” standard in Williams v. Taylor, 529 U.S. 362 (2000), to be not merely wrong, but contrary to controlling Supreme Court authority. Despite the fact that the Seventh Circuit has granted habeas relief in a number of Wisconsin cases based on state courts’ application of this same erroneous standard, the Wisconsin Court of Appeals persists in its misstatement of controlling law.
The erroneous standard, of course, also contributes to the fact that, in my experience reading and handling criminal appeals over the past 26 years, distortion or misapplication of the resulting prejudice/harmless error standard has resulted in far more cases of injustice than all other types of errors in criminal cases combined.
Next post: Ineffective assistance of counsel — failure to demand speedy trial, communicate with defendant, and impeach the victim. Sentencing — unduly harsh sentence.

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