BOARD OF RAILROAD COM'RS OF STATE OF MONTANA et al.
Again we are asked to decide whether state taxes as applied to an interstate motor carrier run afoul of the commerce clause, Art. I, § 8, of the Federal Constitution.
Prior to July 1, 1941, the fees collected pursuant to §§ 3847.16(a) and 3847.27 were paid into the state treasury and credited to 'the motor carrier fund.'3 After that date, by virtue of Mont.Laws, 1941, c. 14, § 2, they were allocated to the state's general fund.
Appellant is a Kentucky corporation, with its principal offices in Indianapolis, Indiana. Its business is exclusively interstate. It consists in transporting household goods and office furniture from points in one state to destinations in another. Appellant does no intrastate business in Montana. The volume of its interstate business there is continuous and substantial, not merely casual or occasional.4 It holds a certificate of convenience and necessity issued by the Interstate Commerce Commission, pursuant to which its business in Montana and elsewhere is conducted.
In 1935 appellant received a class C permit to operate over Montana highways, as required by state law.5 Until 1937, apparently, it complied with Montana requirements, including the payment of registration and license plate fees for its vehicles operating in Montana and of the 5¢ per gallon tax on gasoline purchased there.6 However, in 1937 and thereafter appellant refused to pay the flat $10 fee imposed by § 3847.16(a) and the $15 minimum 'gross revenue' tax laid by § 3847.27. In consequence, after hearing on order to show cause, the appellee board7 in 1939 revoked the 1935 permit and brought this suit in a state court to enjoin appellant from further operations in Montana.
Upon appellant's cross-complaint, the trial court issued an order restraining the board from enforcing the 'gross revenue' tax laid by § 3847.27. But at the same time it enjoined appellant from operating in Montana until it paid the fees imposed by § 3847.16(a). On appeal the state supreme court held both taxes applicable to interstate as well as intrastate motor carriers and construed the term 'gross operating revenue' in § 3847.27 to mean 'gross revenue derived from operations in Montana.'8 It then sustained both taxes as against appellant's constitutional objections, state and federal. Accordingly, it reversed the trial court's judgment insofar as the 'gross revenue' tax had been held invalid, but affirmed the decision relating to the flat $10 tax. Mont., 172 P.2d 452, 460.
Moreover, since Montana has not demanded or sought to enforce payment by appellant of more than the flat $15 minimum fee for class C carriers under § 3847.27,11 we limit our consideration of the so-called 'gross revenue' tax to that fee. This too is in accordance with the state supreme court's declaration: 'Even if it be admitted that the manner of arriving at a sound basis upon which the tax on gross revenue (should be calculated) is not provided by the statute, a c ntention to which we do not agree, no difficulty would arise in putting into effect the minimum fee of $15.00 required for each company vehicle operated within the state.'12 Although the state court did not concede that the statute comprehended no workable or sound basis for calculating the tax above the minimum, we take this statement as a clear declaration that it would sustain the minimum charge even if for some reason the amount of the tax above the minimum would have to fall.
Neither exaction discriminates against interstate commerce. Each applies alike to local and interstate operations. Neither undertakes to tax traffic or movements taking place outside Montana or the gross returns from such movements or to use such returns as a measure of the amount of the tax. Both levies apply exclusively to operations wholly within the state or the proceeds of such operations, although those operations are interstate in character.
Concededly the proceeds of the two taxes presently involved are not allocated to those objects.14 Rather they now go into the state's general fund subject to appropriation for general state purposes.15 Indeed this fact, in appellant's view, is the vice of the statute. But in that view appellant of the exactions. It is far too late to question that a state, consistently with the commerce clause, may lay upon motor vehicles engaged exclusively in interstate commerce, or upon those who own and so operate them, a fair and reasonable, nondiscriminatory tax as compensation for the use of its highways. Hendrick v. Maryland, supra; Clark v. Poor, 274 U.S. 554, 47 S.Ct. 702, 71 L.Ed. 1199; Aero Transit Co. v. Georgia Commission, supra; Morf v. Bingaman, 298 U.S. 407, 56 S.Ct. 756, 80 L.Ed. 1245; Dixie Ohio Co. v. Commission, supra; Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001; cf. South Carolina Highway Department v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734. Moreover 'common carriers for hire, who make the highways their place of business, may properly be charged an extra tax for such use.' Clark v. Poor, supra, 274 U.S. at page 557, 47 S.Ct. at page 703, 71 L.Ed. 1199.
The present taxes on their face are exacted 'in consideration of the use of the highways of this state,' that is, they are laid for the privilege of using those highways. And the aggregate amount of the two taxes taken together is less than the amount of similar taxes this Court has heretofore sustained. Cf. Dixie Ohio Co. v. Commission, supra; Aero Transit Co. v. Georgia Commission, supra. The state builds the highways and owns them.16 Motor carriers for hire, and particularly truckers of heavy goods, like appellant, make especially arduous use of roadways, entailing wear and tear much beyond that resulting from general indiscriminate public use. Morf v. Bingaman, supra, 298 U.S. at page 411, 56 S.Ct. at page 758, 80 L.Ed. 1245. Although the state may not discriminate against or exclude such interstate traffic generally in the use of its highways, this does not mean that the state is required to furnish those facilities to it free of charge or indeed on equal terms with other traffic not inflicting similar destructive effects. Cf. Clark v. Poor, supra; Morf v. Bingaman, supra, 298 U.S. at page 411, 56 S.Ct. at page 758, 80 L.Ed. 1245. Interstate traffic equally with intrastate may be required to pay a fair share of the cost and maintenance reasonably related to the use made of the highways.
The exactions in the present case fall clearly within the rule of Morf v. Bingaman and its predecessors in authority, and therefore, like that case, outside the decisions in the Interstate Transit and like cases. Both taxes are levied 'in consideration of the use of the highways of this state,' that is, as compensation for their use, and bear only on the privilege of using them, not on the privilege of doing the interstate business. Moreover, the flat $10 fee laid by § 3847.16(a) is further identified as one on the privilege of use by the fact that 'unlike the general tax in Interstate Transit, Inc., v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953, the levy of which was unrelated to the use of the highways, grant of the privilege of their use is by the present statute made conditional upon payment of the fee.' Morf v. Bingaman, supra, 298 U.S. at page 410, 56 S.Ct. at page 757, 80 L.Ed. 1245.
It is of no consequence that the state has seen fit to lay two exactions, substantially identical, rather than combine them into one, or that appellant pays other taxes which in fact are devoted to highway maintenance. For the state does not exceed its constitutional powers by imposing more than one form of tax. Interstate Busses Corporation v. Blodgett, supra; Dixie Ohio Co. v. Commission, supra. And, as we have said, the aggregate amount of both taxes combined is less than that of taxes heretofore sustained. In view of these facts there is not even semblance of substance to appellant's contention that the taxes are excessive.
The moneys in the motor carrier fund were subject to appropriation for use in supervision and regulation of many activities other than those connected with the public highways. See Rev.Codes Mont. (1935), §§ 3847.17, 3847.28; and cf. note 13.
Appellant's answer and cross-complaint set forth statistics concerning its use of Montana highways during the years 1937, 1938 and 1939. The figures show appellant's equipment operating on Montana highways during 227 days in 1937, 385 trucking days in 1938; and 405 trucking days in 1939. See also note 6.
The statute was Mont.Laws, 1931, c. 184, § 23, now Rev.Codes Mont. (1935), § 3847.23. The section applied the act of which it was a part to interstate and foreign commerce 'insofar as such application may be permitted under the provisions of' the Federal Constitution, treaties and acts of Congress, but expressly exempted interstate carriers from making 'any showing of public convenience and necessity' in order to secure the certificate or permit.
These taxes were imposed separately from the two involved in this case. Appellant's brief states the registration and license plate fees increased from $660.50 in 1937 to $1,212.50 in 1938 and to $1,630.50 in 1939. The gasoline tax increased from $745.30 in 1937 t $1,257.90 in 1938 and $1,649.98 in 1939. The gallonage tax, though ultimately borne by the consumer, was laid on the sale and collected from the dealer.
It should be noted that 'the board of railroad commissioners,' as used in § 3847.16(a), and 'the public service commission,' as used in § 3847.27, designate a single body, invested with regulatory power over various public utilities in addition to motor carriers, e.g., railroads, common carriers of oil, etc. By Rev.Codes Mont. (1935), § 3880, 'The board of railroad commissioners * * * shall be ex-officio the public service commission hereby created * * *.' The two terms were said by the Montana Supreme Court in this case to be 'used interchangeably.' 172 P.2d 452, 461.
This judicial construction was embodied in an amendment to the section made by Mont.Laws, 1947, c. 73, § 2.
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422; Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246; Minnesota v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744, 126 A.L.R. 530; Morehead v. N.Y. ex rel. Tipaldo, 298 U.S. 587, 56 S.Ct. 918, 80 L.Ed. 1347, 103 A.L.R. 1445; cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.
Acting not only in the view that statutes are presumptively constitutional and, if necessary, are to be so construed as to make them so, the court noted that § 3847.16(b) expressly provides that, when service 'is rendered partly in this state and partly in an adjoining state or foreign country,' carriers 'shall comply with the provisions of this act' concerning 'payment of compensation' and making reports by showing 'the total business performed within the limits of this state.' (Emphasis added.) Accordingly it held that §§ 3847.27 and 3847.16 should be read together and the limitation of § 3847.16(b) 'within the limits of this state' thus became a part of § 3847.27 as well as § 3847.16(a). Mont., 172 P.2d 452, 460.
Appellant's vice president and general manager, Wheating, testified that for purposes of applying § 3847.27 he had calculated, for each of the years 1939 through 1942, 'the (gross) income for that operation of the load miles operated in Montana by using an average income per mile figure based upon the probable load factor we would have had in Montana.' (Emphasis added.) On this basis the amount of the tax as calculated at one-half of one per cent quarterly was substantially below the statutory minimum for each of the four years. See note 19. These figures apparently were reported to and accepted by the board as the basis for its demands upon the taxpayer for the flat $15 minimum annual tax.
Mont., 172 P.2d 452, 460. Appellant had argued, as it does here, that even if the 'gross revenue' tax is limited to revenue derived from operations in Montana, it is nevertheless invalid for want of any prescribed method on the face of the statute for ascertaining or calculating the tax. The state court held that the statute by necessary implication authorized the board to 'adopt any fair and reasonable mode of enforcement designed to effectuate the purposes of the Act.' Mont., 172 P.2d 452, 461. In view of our limitation of the question before us, as stated in the text, we need not express opinion concerning this ruling or any tax above the minimum calculated in accordance with it. Cf. note 11.
In another connection the state supreme court adverted to the separability clause contained in § 3847.24 of the statute, though not referring to it expressly in relation to the statement quoted in the text.
See note 6 and text. It is admitted by the pleadings that the proceeds of he vehicle registration and license tax and the gallonage tax are allocated to the construction, repair and maintenance of state highways.
The board concedes in the brief filed here that the state supreme court was in error in the statement that the revenue from the two taxes presently in issue 'is devoted to the building, repairing and policing of such highways * * *.' Mont., 172 P.2d 452, 462.
See note 3 and text.
It is immaterial that the state receives federal aid for state road construction, a fact on which appellant places some emphasis.
See note 18 infra and text.
Appellant claims that the $15 minimum fee is unreasonable since it is roughly ten times greater than the tax that would be required if the percentage standard provided in the statute were applied. To accept appellant's position would mean that a state could never impose a minimum fee, but would have to adjust its taxes to the inevitable variations in the use of the highways made by various carriers. The Federal Constitution does not require the state to elaborate a system of motor vehicle taxation which will reflect with exact precision every graduation in use. In return for the $15 fee appellant can do business grossing $3,000 per vehicle annually for operations on Montana roads. Appellant was not wronged by its failure to make the full use of the highways permitted. Aero Transit Co. v. Georgia Commission, 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439; Morf v. Bingaman, 298 U.S. 407, 56 S.Ct. 756, 80 L.Ed. 1245; cf. Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222.


text:
Katz v. United States: Is electronically eavesdropping on a conversation occurring within a closed glass phone booth without physically penetrating it an “unreasonable” search protected against by the 4th Amdt.?
HELD: Yes, the Govt.’s activities in electronically listening to and recording D’s words violated the privacy upon which he justifiably relied while using the phone booth and thus constituted a “search and seizure” within the meaning of the 4th Amdt.
United States v. White: Does the 4th Amdt. bar testimony of govt. agents who related certain conversations that occurred between D and an informant, which agents overheard by monitoring a radio transmitter carried by the informant and concealed on his person?
Smith v. Maryland: Was the installation of a pen register on D’s phone line, which recorded only the numbers dialed on the phone and not the contents of the conversations, without a warrant a “search” against which D was protected by the 4th Amdt.?
California v. Ciraolo: Did police violate D’s 4th Amdt. protection against warrantless searches when they flew over D’s house at 1000 feet and observed marijuana plants growing in his yard only because police could not see them from the ground due to D’s 2 fences erected there?
HELD: NO, the 4th Amdt. does not require that police traveling in the public airways at 1000 feet need obtain a warrant in order to observe what is visible to the naked eye.
Bond v. United States: Is it a 4th Amdt. unreasonable search when a border patrol agent squeezes hard a passenger’s soft-sided carry-on bag that is located in the overhead bin above the passenger’s seat and feels a brick-like object inside the bag?
Test: What is the general level of tactile manipulation a person can expect from putting his bag in a public space (e.g., overhead bin)?
Kyllo v. United States: Is the use of a thermal imager to detect the heat output of a house in order to determine if high-intensity lights are being used to grow marijuana an unconstitutional search if such details are not available otherwise without physical intrusion into the home?
HELD: Yes, the surveillance is a “search” and is presumptively unreasonable without a warrant when the govt. uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion.
Email = Reasonable Expectation of Privacy?
United States v. Warshak: Does an individual have a reasonable expectation of privacy for the contents of his emails such that the Govt. must obtain a warrant to search and seize them?
Draper v. United States: Officers had PC to arrest Draper when they received a tip from a known informant that Draper would be bringing heroin back from his trip, and all of the informant’s information matched Draper’s description.
Spinelli v. United States: Was there PC for a warrant when the affidavit contained an informant’s tip that did not provide information to support its reliability nor did it provide the underlying circumstances which led to the conclusion in the tip?
HELD: No, the tip was not a sufficient basis for a finding of PC.
Illinois v. Gates: Is an anonymous tip via a letter that does not include info about where the tipster acquired the info nor about his credibility still a sufficient basis for determining that there is PC to search D’s house?
Whren v. United States: Is the temporary detention of a motorist who police have PC to believe has committed a civil traffic violation inconsistent with the 4th Amdt.’s protection against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws?
HELD: No, PC justifies a search or seizure.
Johnson v. United States: Did a police officer violate D’s 4th Amdt. rights by searching her hotel room without a warrant after the officer smelled a strong odor of burning opium and then knocked at the door and D let him in?
United States v. Watson: Did an officer violate D’s 4th Amdt. rights when he made an arrest without a warrant in a public place after believing that D was in possession of stolen credit cards?
HELD: No, officers have the right to arrest in public without a warrant so long as they have PC.
Atwater v. City of Lago Vista: Does the 4th Amdt. prohibit a warrantless arrest for a minor criminal offense such as a misdemeanor seatbelt violation punishable only by a fine?
HELD: No, if an officer has PC to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the 4th Amdt., arrest the offender.
Virginia v. Moore: Did a police officer violate the 4th Amdt. when he arrested D based on PC to believe that D had broken the law, but state law prohibited arrest for this particular misdemeanor?
HELD: No, warrantless arrest for any crimes committed in the presence of an arresting officer are reasonable under the 4th Amdt., and state law requirements in addition do not alter the 4th Amdt.’s requirements.
States can impose greater protections, but that does not affect the 4th Amdt.
United States v. Grubbs: Is an anticipatory search warrant invalid because the property owner was not given the affidavit that contained the condition precedent to the warrant taking effect along with the copy of the warrant?
HELD: No, property owners needn’t receive the warrant at all.
Wilson v. Arkansas: Does an officer have to knock and announce his presence before kicking in a door to a house for which he has a valid search or arrest warrant?
HELD: Maybe – K&A is a factor in the reasonableness requirement.
In some circumstances an officer’s unannounced entry into a home might be unreasonable under the 4th Amdt.
Chimel v. California: Did a search of D’s entire house including closed desk drawers following his valid arrest amount to an unreasonable search under the 4th Amdt.?
HELD: Yes, the search was unreasonable because it far exceeded D’s person and immediate area.
United States v. Robinson: Was a search of a crumpled up cigarette pack in D’s pocket following D’s lawful arrest justifiable as a search incident to arrest?
HELD: Yes, in the case of lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement, but it is also a reasonable search under it.
New York v. Belton: May a police officer search the passenger compartment of a vehicle and containers inside it without a warrant as incident to a valid arrest of its occupants?
HELD: Yes, when a police officer has made a lawful custodial arrest of the occupant of a vehicle, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that vehicle.
Arizona v. Gant: May a police officer properly search the passenger compartment of a vehicle and its contents as a warrantless search incident to arrest if the arrestees are secured and cannot possibly reach any of the contents of the vehicle?
HELD: No, the police are authorized to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.
Payton v. New York: May a police officer enter a private residence without a warrant and with force if necessary in order to make a routine felony arrest, even if allowed by state law?
Exigent Circumstances – Have a good answer to: Why didn’t you get a warrant?
Warden, Maryland Penitentiary v. Hayden: Is a comprehensive search of a residence without a warrant a violation of the 4th Amdt. if an armed robbery had just occurred and police received a tip that the alleged robber had just entered the house in question?
HELD: No, the exigencies of the situation made the warrantless search for the robber and weapons imperative.
Vale v. Louisiana: May police officers search a house as incident to arrest if D was arrested outside the house on the front steps for allegedly selling narcotics?
Steagald v. United States: Police have a valid arrest warrant for D, but he’s not in his own home. Arrest warrant will allow officers to forcibly enter D’s own home but NOT someone else’s home.
Chambers v. Maroney: Is a warrantless seizure of a vehicle unreasonable under the 4th Amdt. if officers had PC to believe that the fruits & instrumentalities of crime would be found inside?
HELD: No, there is no constitutional difference between a warrantless search of the vehicle and a warrantless seizure (both are valid under the 4th Amdt. with PC).
Rare Exception: Police see a person put a paper bag in the trunk that they have PC to believe contains drugs, but they know the rest of the car is clean.
State v. Wallace: Positive dog sniff alerting to a car gives PC to search the car but does NOT give PC to search the passengers in the vehicle. The officer can have the dog sniff the passengers, however, and that won’t be a search.
California v. Carney: Is a warrantless search of a fully-mobile motor home reasonable under the vehicle exception to the 4th Amdt. warrant requirement if the officers have PC to believe that the F&I of crime will be found inside?
California v. Acevedo: Does the 4th Amdt. require the police to obtain a warrant to open a paper bag in a moveable vehicle simply because they lack PC to search the entire car?
HELD: No, the police may search an automobile and the containers within it where they have PC to believe contraband or evidence is contained.
Problem: Police had PC to believe that a car contained heroin so they seized it. However, the search became unreasonable because they searched the car 10 times without a warrant.
United States v. Chadwick: Is a warrantless search of a footlocker that the police have PC to believe contains the F&I of crime valid under the 4th Amdt. if it has been seized by police and under their exclusive control?
HELD: No, the footlocker is protected by the 4th Amdt. Warrant Clause, so it may only be searched with a warrant or under exigent circumstances.
Hawkins v. State: (Not SCOTUS) Is a cell phone similar enough to a “container” such that an officer may reasonably search it without a warrant as a contemporaneous incident to a lawful arrest?
South Dakota v. Opperman: Was a standard inventory search of the contents of a car that was impounded for multiple parking violations unreasonable under the 4th Amdt. if officers found marijuana in the glove box?
HELD: No, in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not “unreasonable” under the 4th Amdt.
Question: Was the inventory search done pursuant to the justification in Opperman, i.e., caretaking?
Illinois v. Lafayette: Was it unreasonable under the 4th Amdt. for an officer to search the contents of D’s shoulder bag upon arresting him and before incarcerating him if the officer found contraband inside?
HELD: No, it is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrestee, to search any container or article in his possession in accordance with established inventory procedures.
Colorado v. Bertine: Was it unreasonable under the 4th Amdt. for an officer to open a backpack and the containers inside that was inside a van the officer was lawfully impounding pursuant to an arrest?
HELD: No, reasonable police regulations relating to inventory procedures administered in good faith satisfy the 4th Amdt. even though in hindsight courts might be able to devise equally reasonable rules.
Florida v. Wells: An inventory search of a locked suitcase found in the trunk of an impounded vehicle did violate the 4th Amdt. because highway patrol had no policy with respect to the opening of closed containers encountered during an inventory search.
Schneckloth v. Bustamonte: Must an individual be advised of his right to refuse consent to a search requested by police in order to be reasonable under the 4th Amdt.?
HELD: No, the prosecution must only show that the consent was in fact voluntarily given and not the result of duress or coercion, express or implied.
Holding: When a subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the 4th Amdt. requires that the consent was in fact voluntarily given and not the result of duress or coercion, express or implied.
Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of the right to refuse is a factor, the prosecution needn’t demonstrate knowledge of this right.
What would a reasonable person have understood by the exchange between the officer and the suspect?
United States v. Matlock: Was the government’s showing of 3rd party consent to search the premises constitutionally sufficient to render the evidence found therein admissible at trial?
Georgia v. Randolph: May police conduct a search consented to by a 3rd party if another cotenant is present and objects to the search?
HELD: No, a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.
Illinois v. Rodriguez: Does an officer’s mistaken but objectively reasonable belief that a person has “common authority” to consent to a search of a residence render the search unreasonable if the person in fact does not live there but had a key?
Horton v. California: Is the warrantless seizure of evidence of crime in plain view prohibited by the 4th Amdt. if the discovery was not inadvertent?
HELD: No, even though inadvertence is characteristic of most legitimate “plain view” seizures, it is not a necessary condition.
Arizona v. Hicks: May police conduct a “search” greater than a cursory examination of an item found in plain view during a lawful search of the premises in order to find out more information about the item?
HELD: No, not unless police have probable cause to search the item.
United States v. Comprehensive Drug Testing: May the govt. lawfully seize electronic information that is comingled with information for which it does not have a warrant to seize if the govt. did not follow the warrant’s requirements in segregating the data?
Terry v. Ohio: Is it always unreasonable for a police officer to seize a person and subject him to a limited search for weapons unless there is PC for an arrest?
HELD: No, where a police officer observes unusual conduct which leads him to reasonably conclude in light of his experience that criminal activity is afoot and that the persons with whom he is dealing may be armed and presently dangerous, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons to discover weapons.
HELD: Yes, the detention of D was indistinguishable from a traditional arrest.
United States v. Mendenhall: Was an airline passenger “seized” under the 4th Amdt. when 2 DEA agents confronted her upon deplaning and asked her for her ticket and ID and then asked if she would accompany them to an office for further questioning?
Florida v. Bostick: Is a categorical per se rule that an impermissible “seizure” results when the police mount a drug sweep on a bus during a scheduled stop and question boarded passengers without articulable suspicion for doing so and thereby obtain consent to search the passengers’ bags consistent with the 4th Amdt.?
California v. Hodari D.: Was a fleeing suspect “seized” when a police officer was right behind him chasing him but had not yet had physical contact with the suspect?
HELD: No, an arrest requires either physical force or submission to the assertion of authority.
United States v. Pratt: (8th Cir.) When probable cause to arrest exists, the standard for determining whether an arrest has occurred is the same as that for determining whether a seizure has occurred.
Illinois v. Wardlow: May a police officer perform a Terry stop when he sees an individual flee from the scene when the police drive by a high-crime area?
Alabama v. White: Did an officer have reasonable suspicion sufficient to justify a Terry stop when the police received an anonymous tip that D would be carrying cocaine and not all of the information in the tip checked out?
Florida v. J.L.: Did officers have reasonable suspicion to believe that D would be carrying a gun when they received an anonymous tip that a young, black male in a plaid shirt at a certain bus stop was carrying a gun?
HELD: No, an anonymous tip lacking indicia of reliability of the kind contemplated in White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.
Hayes v. Florida: May the police take a suspect to the police station for the purpose of fingerprinting the individual if they do not have PC to make an arrest but they do have reasonable suspicion?
United States v. Sharpe: Was it unreasonable for officers to detain a truck for 20 minutes that they suspected was carrying marijuana while the officers tried to pull over another vehicle?
Hiibel v. 6th Judicial District Court of Nevada: A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with the 4th Amdt.
United States v. Place: Is a 90-minute detention of a traveler’s luggage in order to subject the bag to a dog sniff an unreasonable seizure under the 4th Amdt. if it was part of a Terry stop?
Michigan v. Long: May a police officer search the passenger compartment of a vehicle for weapons if he reasonably believes that the driver is potentially dangerous?
HELD: Yes, the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons as long as they possess reasonable suspicion.
Minnesota v. Dickerson: Does the 4th Amdt. permit the seizure of contraband detected through a police officer’s sense of touch during a protective patdown if the incriminating character of the contraband is not immediately apparent?
Maryland v. Buie: Is a protective sweep of a house to ensure that there are no persons hidden that could harm officers while effecting an arrest reasonable under the 4th Amdt.?
New Jersey v. T.L.O.: Was it unreasonable for a school’s vice principal to search the contents of a student’s purse twice because he reasonably believed that she was smoking in the lavatory against school rules?
Michigan Dept. of State Police v. Sitz: Is a highway sobriety checkpoint consistent with the 4th Amdt.’s prohibition on unreasonable seizures?
Stopping motorists at checkpoints is a seizure that invokes the 4th Amdt.
United States v. Martinez-Fuerte: Highway checkpoints for illegal aliens reasonably near the border are reasonable under the 4th Amdt.
City of Indianapolis v. Edmond: Is a drug-detection checkpoint on a road violative of the 4th Amdt.?
Illinois v. Lidster: Is a highway checkpoint for information gathering about a crime that had occurred a week earlier unreasonable under the 4th Amdt.?
Skinner v. Railway Labor Executives’ Association: Is it an unreasonable search of a railroad employee to automatically require him to undergo blood, urine, or breath tests immediately following certain incidents on a railroad in order to determine if he has consumed intoxicants despite lacking individualized suspicion?
Testing is a “search,” and compelled intrusions into the body do invoke the 4th Amdt.
Chandler v. Miller: Is a state statute that requires all candidates for certain public offices to submit a certification of drug testing an unreasonable search without individualized suspicion?
United States v. Flores-Montano: Is disassembly of a vehicle’s gas tank in order to search it for secreted contraband unreasonable if the border patrol agents didn’t have reasonable suspicion that it contained contraband?
United States v. Seljan: Random, suspicionless searches at the border by opening packages mailed from the US to foreign countries. Border context can be used as an excuse for general rummaging.
Tennessee v. Garner: Is it reasonable for an officer to use deadly force to stop a fleeing felon under all circumstances?
Schmerber v. California: Was it unreasonable for the police to force a blood sample to be taken at a hospital in order to determine D’s blood alcohol content following being arrested for DUI?
Blood test is a search and seizure protected by the 4th Amdt.
Winston v. Lee: It is an unreasonable search for a state to require D to undergo an operation to remove a bullet from his chest to be used against him if the state has substantial evidence to use against him at trial already?
Involuntariness due to police misconduct?
If counsel, did police stop questioning until lawyer was present?
If no, then did D re-initiate?
(Or, was D released from custody and allowed to consult attorney, and did the police wait 2 weeks (Shatzer v. Maryland (2010))?).
Ashcraft v. Tennessee: Is a confession obtained through constant questioning for over 36 hours without letting D sleep or leave the room valid against D?
Spano v. New York: Was a confession voluntarily obtained if D repeatedly asked to speak with his attorney but wasn’t allowed and D refused to speak until his friend/new cop convinced him to talk?
Arizona v. Fulminante: After D was having a "rough time" in prison, a prison informant offered D protection from the other inmates if he told him about the murder of D's stepdaughter.
Colorado v. Connelly: Was a confession voluntarily given if D blurted it out to police officers who did not coerce him at all but it later turns out that D was suffering from psychosis?
HELD: Yes, coercive police activity is a necessary predicate to finding a confession not “voluntary” within the meaning of the DPC.
Miranda v. Arizona: Must a suspect be informed of his constitutional rights against self-incrimination and assistance of counsel and give a voluntary and intelligent waiver of those rights as a necessary precondition to police questioning and the giving of a confession?
New York v. Quarles: Was an officer justified in questioning a D immediately upon detention about the whereabouts of a gun that the officer believed was missing without advising D of his Miranda rights in the name of public safety?
HELD: Yes, the needs for answers in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the 5th Amdt.’s privilege against self-incrimination.
Black-Letter Law: No Miranda warnings are necessary as a condition of admissibility for voluntary statements made during custodial interrogation in circumstances where a reasonable police officer might believe the question necessary to protect the safety of the public (including the suspect and the officer).
Dickerson v. United States: Was Miranda a constitutional decision such that a statute enacted by Congress essentially overruling it is invalid?
Berkemer v. McCarty: Was a D taken into “custody” and thus his statements barred from evidence per Miranda if he was detained at a traffic stop and subjected to standard questioning and a balancing test?
Black-Letter Law: There is no Miranda requirement for questions asked during traffic stops or Terry stops because, while they are “seizures” for 4th Amdt. purposes, they are not “custodial” for 5th Amdt. purposes.
Rhode Island v. Innis: Was an individual “interrogated” under Miranda if the 2 officers in the police car said that it would be unfortunate for a little handicapped girl to die by finding a sawed-off shotgun hidden by the individual?
Black-Letter Law: “Interrogation,” for purposes of the “custodial interrogation” test, means any act, verbal or non-verbal by the police that they should know is reasonably likely to elicit an incriminating response from the suspect. It’s not a subjective test on either side.
Illinois v. Perkins: Does an undercover law enforcement officer have to give Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response?
North Carolina v. Butler: Must officers obtain an express waiver from a D of his Miranda rights as a necessary condition to the admissibility of a subsequent statement?
Colorado v. Spring: Must a suspect be informed of all of the possible subjects of the interrogation as a necessary precondition to his waiver of his Miranda rights being voluntary and knowing?
HELD: No, a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his 5th Amdt. privilege.
Michigan v. Mosley: Do police have to cease questioning forever after a suspect invokes his right to remain silent on certain subjects during questioning?
Miranda: If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.
Berghuis v. Thompkins: Are police required to obtain an express waiver of the right to remain silent as a necessary precondition to the admissibility of uncoerced statements if the suspect was given his Miranda rights and understands them?
HELD: No, a suspect who has received and understands his Miranda rights and has not invoked these rights waives the right to remain silent by making an uncoerced statement to the police.
Davis v. United States: Must the police cease questioning of a suspect if he makes an objectively ambiguous mention of consulting with counsel?
Edwards v. Arizona: May the prosecution use a statement D made after he invoked his right to assistance of counsel if the police didn’t provide him with counsel and started a second round of questioning?
Minnick v. Mississippi: Is it necessary for police to refrain from questioning a D if he has invoked his right to counsel and did in fact consult with counsel but counsel was not present in the interrogation room?
Florida v. Powell: Do Miranda rights that tell a suspect that he has the right to assistance of counsel before questioning but also tell him that he can invoke his rights at any time satisfy Miranda?
Betts v. Brady: Does the 14th Amdt. DPC require that states appoint counsel to represent indigent Ds in all criminal cases?
Gideon v. Wainwright: Should Betts v. Brady be overruled as being inconsistent with the fundamental right of fairness at trial?
(2) D was prejudiced in that there was a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.
Scott v. Illinois: Is the Argersinger “actual imprisonment” rule that no person may be incarcerated for any offense unless he was represented by counsel still valid?
When waiving right, judge has to tell D what sentences are possible, etc.
Massiah v. United States: May law enforcement agents use incriminating statements obtained surreptitiously from a D in the absence of D’s counsel who has already been indicted in evidence against D?
(2) Waived in Miranda setting (Montejo)?
Brewer v. Williams: Was it a violation of D’s right to assistance of counsel when officers made statements in a car with him reasonably likely to elicit incriminating responses from D in the absence of D’s attorney?
United States v. Henry: Was it a violation of D’s 6th Amdt. right to counsel when the govt. paid a fellow inmate to listen to D and report to the govt. if D made any incriminating statements while imprisoned after he was indicted and D’s attorney was not present?
Kuhlmann v. Wilson: Did police “deliberately elicit” incriminating statements from D in violation of D’s 6th Amdt. right to counsel when police placed an informant in D’s cell who merely listened to D?
What type of lineup was it?
United States v. Wade: Does a post-indictment lineup conducted for identification purposes out of the presence of D’s counsel violate the 6th Amdt. right to assistance of counsel?
Voice, likeness, etc. are not protected by the 5th Amdt.
Kirby v. Illinois: Was it a violation of D’s 6th Amdt. right to counsel when the police set up a witness identification of D in the police station following D’s arrest but before D was arraigned?
United States v. Ash: Was it a violation of D’s 6th Amdt. right to counsel when police used a photographic lineup outside the presence of D’s counsel to see if the witnesses could identify D?
Due Process Violation in Lineup?
Stovall v. Denno: Did police violate D’s due process rights by displaying him singly in a hospital room a day after the victim had major surgery and the victim made a positive ID?
Foster v. California: D was shown to V in each of 2 lineups. In the 1st lineup, D was 5-6 inches taller than all the other men and was wearing a leather jacket that was how the perp was dressed. In the 2nd lineup, D was the only person who was the same as before.
Manson v. Brathwaite: Did police violate D’s due process rights when the undercover officer who viewed D in dim light was given a single photo to view and ID’ed D as the alleged perp based on a vague and general description of D?
Weeks v. United States: Should the trial judge have excluded evidence obtained from a search of D’s home conducted in violation of the 4th Amdt.?
Mapp v. Ohio: May evidence obtained from an unconstitutional search and seizure be admitted against a criminal D in state court?
Rakas v. Illinois: May passengers in an automobile that was the subject of an unconstitutional search assert the exclusionary rule to exclude the evidence obtained from that search against them?
Minnesota v. Carter: Does a temporary houseguest who is not staying overnight have a legitimate expectation of privacy such that he can object to an allegedly unreasonable search of the house?
Silverthorne Lumber Co. v. United States: May the Govt. use the knowledge it gained from reading illegally seized documents as evidence against Ds at trial?
Murray v. United States: Must evidence obtained through a legal search be suppressed if an illegal search was conducted prior to the legal one but the knowledge gained from the illegal search was not used to obtain the warrant?
Facts X and Y are obtained from an illegal search, but fact Z is from an independent source. Fact Z is admissible.
Nix v. Williams: Should the Inevitable Discovery Doctrine apply to allow admission of evidence that would have been discovered if search teams continued as they would have if D had not led the police to the victim’s body?
Wong Sun v. United States: Did release from custody and a 2-week period sufficiently attenuate the taint of the unlawful police conduct in order for the later, voluntary statements to be admissible?
Brown v. Illinois: Did Miranda warnings sufficiently attenuate the taint of an illegal arrest in order for statements resulting from it to be admissible into evidence?
Hudson v. Michigan: Does a violation of the Wilson knock-and-announce rule when police were conducting a legal, warranted search of D’s home subject the evidence found pursuant to the search to the Exclusionary Rule?
HELD: No, an impermissible manner of entry does not necessarily trigger the Exclusionary Rule.
Oregon v. Elstad: Does an initial failure to administer Miranda warnings before questioning a suspect “taint” a subsequent voluntary, warned confession that was given after Miranda warnings were given and waived?
HELD: No, a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.
No excludable “fruits”: It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.
Missouri v. Seibert: Did midstream Miranda warnings serve to sufficiently dissipate the taint of previous, unwarned police questioning if the 2 sessions of questioning were essentially continuous and referred to each other?
Factors: Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture?
United States v. Patane: Does the failure to give a suspect Miranda warnings require suppression of the physical fruits of the suspect’s unwarned but voluntary statements?
United States v. Leon: Should the 4th Amdt. Exclusionary Rule be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective because there was no PC?
Massachusetts v. Sheppard: Did officers reasonably rely on a search warrant issued by a judge that was defective because it included an authorization to search for materials for which the officers had no PC and it didn’t incorporate the supporting affidavit?
Herring v. United States: Should the exclusionary rule apply to evidence found during a search incident to arrest if the arrest is subsequently invalidated due to a revoked warrant on which the officers reasonably relied in arresting D?
Harris v. New York: Can the prosecution use a statement obtained in violation of Miranda to impeach the D's testimony at trial?
United States v. Havens: Can the physical evidence, otherwise inadmissible because of a 4th Amdt. violation, be used to impeach a D at trial during cross-examination?
James v. Illinois: Should the impeachment exception to the Exclusionary Rule be expanded such that this evidence can be used to impeach all defense witnesses and not just Ds?

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Full Statute Name: Maine Revised Statutes Annotated. Title 33. Property. Chapter 21. Lost Goods and Stray Beasts.
This section comprises Maine's Lost Goods and Stray Beasts Act.
Whoever finds lost money or goods of the value of $3 or more shall, if the owner is unknown, within 7 days give notice thereof in writing to the clerk of the town where the money or goods are found and post a notification thereof in some public place in said town. If the value is $10 or more, the finder, in addition to the notice to the town clerk and the notification to be posted, shall, within one month after finding, publish a notice thereof in some newspaper published in the town, if any, otherwise in some newspaper published in the county.
R.S.1954, c. 179, § 10.
Whoever takes up a stray beast shall, within 7 days, give notice thereof in writing, containing a description of its color and its natural and artificial marks, to the clerk of the town where such beast is taken, and shall cause a notice thereof, containing a like description of the beast, to be posted, and if such beast is of the value of $10 or more, to be published in the manner provided in section 1051; otherwise he shall not be entitled to compensation for any expenses which he may incur relative thereto.
R.S.1954, c. 179, § 11.
Every finder of lost goods or stray beasts of the value of $10 or more shall, within 2 months after finding and before using them to their disadvantage, procure a warrant from the town clerk or a notary public, directed to 2 persons appointed by said clerk or notary, not interested except as inhabitants of the town, returnable at said clerk's office within 7 days from its date, to appraise said goods under oath.
R.S.1954, c. 179, § 12; 1995, c. 227, § 2.
If the owner of such lost money or goods appears within 6 months, and if the owner of such stray beasts appears within 2 months after said notice to the town clerk and gives reasonable evidence of ownership to the finder, the owner shall have restitution of them or the value of the money or goods, paying all necessary charges and reasonable compensation to the finder for keeping, to be adjudged by the district court, if the owner and finder cannot agree.
R.S.1954, c. 179, § 13; 1995, c. 227, § 3.
If such owner appears within 6 months after such notice is filed with the town clerk and proves his title to the beasts, he shall, if they have not been sold, have restitution of the same after paying the charges arising thereon as provided in section 1054. If the beasts have been sold, he shall be entitled to receive the money so deposited in the treasury from the proceeds of the sale. If no owner appears within 6 months, the beasts or the value or price thereof after deducting said charges shall, as prescribed in section 1056, be equally divided between the finder and the town.
R.S.1954, c. 179, § 16.
If no owner appears within 6 months, such money or lost goods shall belong to the finder by paying 1/2 their value after deducting all necessary charges to the treasurer of said town; but if he neglects to pay it on demand, it may be recovered in an action brought by said treasurer in the name of the town.
R.S.1954, c. 179, § 14.
If the owner does not appear and prove his title to the beasts within said 2 months, the finder may sell them at public auction, first giving notice of such sale at least 4 days before the time of sale in 2 public places in the town in which the beasts were taken up. The proceeds of the sale, after deducting all lawful charges, shall be deposited in the town treasury.
R.S.1954, c. 179, § 15.
If the finder of lost money or goods of the value of $3 or more or if the person taking up such stray beast neglects to give notice to the town clerk and to cause them to be advertised as provided, he forfeits to the owner the full value thereof unless he delivers or accounts therefor to the owner, in which case he shall forfeit not more than $20, 1/2 to the town and 1/2 to the prosecutor.
R.S.1954, c. 179, § 17.
Whoever takes away a beast held as a stray, without paying all lawful charges incurred in relation to the same, shall forfeit to the finder double the amount of said charges, not exceeding the value of the beast, and in addition thereto shall be liable for any trespass committed by him in so doing.
R.S.1954, c. 179, § 18.
Any person injured in his land by sheep, swine, horses, asses, mules, goats or neat cattle, in a common or general field, or in a close by itself, may recover his damages by taking up any of the beasts doing it, and giving the notice provided in section 1052, or in a civil action against the person owning or having possession of the beasts at the time of the damage, and there shall be a lien on said beasts, and they may be attached in such action and held to respond to the judgment as in other cases, whether owned by the defendant or only in his possession. If the beasts were lawfully on the adjoining lands, and escaped therefrom in consequence of the neglect of the person suffering the damage to maintain his part of the partition fence, their owner shall not be liable therefor.
R.S.1954, c. 179, § 19; 1961, c. 317, § 615.


UNITED STATES of America, Plaintiff–Appellee, v. Aaron Michael HYMAS, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Tiffany Kim Hymas, Defendant–Appellant.
Marcus R. Mumford (argued), Mumford PC, Salt Lake City, UT, for Defendants–Appellants. Syrena C. Hargrove (argued) and Wendy J. Olson, Assistant United States Attorneys, Boise, ID, for Plaintiff–Appellee.
Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. No. 1:12–cr–00045–EJL–1, D.C. No. 1:12–cr–00045–EJL–2.
Aaron and Tiffany Hymas were each convicted, pursuant to plea agreements, of one count of wire fraud under 18 U.S.C. § 1343. Aaron appeals his sentence of 24 months' imprisonment, contending that facts found by the district court in sentencing should have been subject to the clear and convincing standard of proof rather than the preponderance of the evidence standard that the district court applied, because of the disproportionate impact of those facts on the sentence that was imposed. We agree, in part, vacate that sentence, and remand to the district court for further proceedings. Both defendants also appeal the district court's orders requiring restitution. We affirm those orders.
To avoid confusion we refer to the defendants individually by their first names.
District courts generally use the “preponderance of the evidence standard of proof when finding facts at sentencing, such as the amount of loss caused by a fraud.” United States v. Treadwell, 593 F.3d 990, 1000 (9th Cir.2010). The higher clear and convincing standard may apply, however, “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction.” United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir.2000) (citing United States v. Restrepo, 946 F.2d 654, 659 (9th Cir.1991) (en banc)); see also Treadwell, 593 F.3d at 1000. Particularly “where a severe sentencing enhancement is imposed on the basis of uncharged or acquitted conduct, due process may require clear and convincing evidence of that conduct.” Treadwell, 593 F.3d at 1000.
Our precedents “have not been a model of clarity in deciding what analytical framework to employ when determining whether a disproportionate effect on sentencing may require the application of a heightened standard of proof.” United States v. Berger, 587 F.3d 1038, 1048 (9th Cir.2009). We have indicated that, “where the sentencing enhancements are based on ... the offense of conviction,” the preponderance of the evidence standard is sufficient. Id. (citing United States v. Harrison–Philpot, 978 F.2d 1520, 1524 (9th Cir.1992)) (internal quotation marks omitted). We have also held that “there is no bright-line rule for the disproportionate impact test;” instead, the court examines the “totality of the circumstances” using six factors first articulated in United States v. Valensia, 222 F.3d 1173 (9th Cir.2000) (“ Valensia factors”). Berger, 587 F.3d at 1048 (citing United States v. Jordan, 256 F.3d 922, 928 (9th Cir.2001)) (internal quotation marks omitted).
Our opinion in Valensia was vacated and remanded by the Supreme Court, see United States v. Valensia, 532 U.S. 901, 121 S.Ct. 1222, 149 L.Ed.2d 133 (2001), but we have continued to use the factors articulated in the decision.
The fifth and sixth factors arguably favor use of the clear and convincing standard. The number of offense levels added under U.S.S.G. § 2B1.1 for a loss of more than $120,000 but not more than $200,000 was 10. In pleading guilty, Aaron did not acknowledge any particular loss amount, and that loss enhancement was over 4 levels. Similarly, the length of the Guidelines sentencing range based on that loss amount more than doubled the length of sentence authorized by the initial Guidelines range if no loss had been attributed to the transaction. Aaron argues that these two factors alone were sufficient to require the use of the heightened standard.
The district court in this case concluded that the appropriate standard of proof was preponderance of evidence based upon a line of cases that applied that lower standard when determining the extent of losses from a conspiracy. The decisions cited by the district court— Treadwell, 593 F.3d at 1001; Berger, 587 F.3d at 1048–49; and United States v. Armstead, 552 F.3d 769, 777 (9th Cir.2008)—hold that where losses are based on the extent of a criminal conspiracy, those losses need not be proven by clear and convincing evidence because the defendants had the opportunity at trial to challenge evidence of the extent of the fraud conspiracy.
Similarly, the district court might have imposed the same sentence even if it had calculated a lower loss figure under the clear and convincing standard and, as a result, a lower sentencing Guidelines range, but that possible outcome is too uncertain for us to rely upon it. It is also inconsistent with our normal approach to sentencing. “[T]he district court must correctly calculate the recommended Guidelines sentence and use that recommendation as the ‘starting point and initial benchmark.’ ” United States v. Munoz–Camarena, 631 F.3d 1028, 1030 (9th Cir.2011) (per curiam) (quoting Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)) (internal quotation marks omitted). We cannot say on this record that the failure to calculate the correct recommended Guidelines sentence was harmless error because the district court's analysis for the extent of the variance was not based on the correct range. Id. at 1030–31. Accordingly, we vacate Aaron Hymas's sentence and remand the matter to the district court. On remand, the court should apply the clear and convincing standard in calculating losses attributable to the other loans.
Aaron also argues that the district court erred by using the amount realized from deficiency sales to calculate the losses from the loans. We conclude that the district court correctly calculated the losses by taking the principal amount of the loan and subtracting any credits from the subsequent sale of the property. See United States v. Morris, 744 F.3d 1373 (9th Cir.2014). Similarly, the district court did not err by considering the losses submitted by successor lenders who had purchased the loans. The losses to those lenders are considered reasonably foreseeable pecuniary harm because the lenders purchased the loans “without an awareness of [their] true value due to ... fraud.” United States v. Yeung, 672 F.3d 594, 603 (9th Cir.2012), overruled on other grounds by Robers v. United States, 572 U.S. ––––, 134 S.Ct. 1854, 188 L.Ed.2d 885 (2014). Although Yeung examined proximate cause in the context of the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, we see no reason why its reasoning would not apply to determine losses in the sentencing context.
The court reviews de novo the legality of a restitution order, including the district court's valuation method. Yeung, 672 F.3d at 600. Factual findings supporting an order of restitution are reviewed for clear error. United States v. Chao Fan Xu, 706 F.3d 965, 993 (9th Cir.2013).
Tiffany did not file objections to the PSR. The failure to object might otherwise call for review under the “plain error” standard. We need not consider that possibility, however, because we conclude that the district court did not err at all. For a similar reason, we reject Tiffany's argument alleging ineffective assistance of counsel, discussed below at 17–18.
The Mandatory Victims Restitution Act requires that defendants be ordered to pay restitution to any victim “directly and proximately harmed as a result of the commission of an offense.” 18 U.S.C. § 3663A(a)(2). The district court properly determined that Aaron owed $1,520,296.77 and Tiffany owed $667,505.42 in restitution.
The standard of proof for restitution proceedings is preponderance of the evidence, as opposed to the standard of clear and convincing evidence required for a sentencing enhancement with a disproportionate impact. 18 U.S.C. § 3664(e).
The Hymases also argue that the loan servicers listed in the PSR did not themselves suffer losses. This argument was not presented to the trial court, and it cannot be raised for the first time on appeal. See United States v. Napier, 463 F.3d 1040, 1045–46 (9th Cir.2006). Although we may consider newly-raised issues that are “purely legal,” this argument is not purely legal because it requires fact-finding as to the terms between the servicing entities and the successor holders of the loan.


APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 63-514, DIVISION "D" HONORABLE KIRK A. VAUGHN, JUDGE.
Richard A. Tonry, Kim C. Jones, Michael C. Ginart, Jr., THE LAW OFFICE OF TONRY GINART 8651 West Judge Perez Drive Chalmette, LA 70043 COUNSEL FOR PLAINTIFF/APPELLEE .
Richard Ieyoub, Attorney General Gregory G. D'Angelo, Special Assistant Attorney General PANZECA D'ANGELO 111 Veterans Memorial Boulevard, Suite 1555 Metairie, LA 70005 COUNSEL FOR DEFENDANT/APPELLANT .
The defendants, Kermit Smith and the State of Louisiana through the Department of Public Safety and Corrections appeal the trial court's judgment taxing them with costs and fees.
On May 2, 1990, Gordon J. Trentecosta (Mr. Trentecosta) sued the defendants, Robert Beck (Mr. Beck), Ronnie Jones (Mr. Jones), Kermit Smith (Mr. Smith) and the Department of Public Safety and Corrections for defamation in the 34th Judicial District Court for the Parish of St. Bernard. On April 7, 1993, Mr. Trentecosta's petition for damages was amended to add CT Arabi, Inc. (CT) as a plaintiff. CT is owned by Mr. Trentecosta and his wife. Mr. Trentecosta and CT won the lawsuit and the defendants appealed the trial court's judgment. This Court affirmed the trial court's judgment as to both liability and damages. Thereafter, the defendants sought and were granted writs to the Louisiana Supreme Court of Louisiana. The Supreme Court vacated the judgments of the trial court and the Fourth Circuit Court of Appeal and then remanded the case back to the Fourth Circuit Court of Appeal. On remand, this court entered a judgment in favor of the plaintiffs and against all of the defendants. This court awarded Trentecosta $50,000 and CT Arabi, Inc. $94,357.50. The defendants then applied for writs to the Louisiana Supreme Court but were denied.
After the Fourth Circuit Court of Appeal rendered judgment, the plaintiffs demanded payment of the damages, costs and interest. The defendants tendered payment of the judgment for an amount less than that requested by the plaintiffs. The plaintiffs accepted the payment and then brought a Motion to Tax Costs and Interests against the defendants. In their motion, the plaintiffs alleged that they were entitled to a judgment for costs in the amount of $3,753.17 and that the interest on the judgment in favor of CT should date back to the date the original petition was filed by Mr. Trentecosta. The trial court denied the plaintiffs' motion. The plaintiffs then filed a Motion for a New Trial alleging that the judgment of the trial court failed to mention an award for costs and expert fees and that the judgment was contrary to the law. On October 13, 1999, the trial court first amended the judgment, awarding plaintiffs costs and expert fees. Then, on December 20, 1999, the trial court granted the Motion for a New Trial and rendered a judgment for pre-judgment interest in favor of CT Arabi, Inc. back to the filing of the original petition filed by Mr. Trentecosta. The defendants now appeal the judgment of the trial court awarding costs to plaintiffs.
(10) Set and tax costs and expert witness fees.
Under the provisions of LSA-C.C.P. Art. 2088(10), a trial court retains jurisdiction to set and tax costs and expert witness fees even after the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested and the jurisdiction of the appellate court attaches. [Emphasis added].
Therefore, Louisiana's Code of Civil Procedure and the corresponding case law make it clear that a trial court may award costs and fees following an appeal. We find no distinction between a trial court setting costs and fees after an appeal has been lodged and a trial court setting costs and fees after a case has been remanded to the appellate court. In both instances, although appellate jurisdiction has attached in different ways, the law remains that the trial court still retains jurisdiction to set costs and fees. Consequently, we find that the trial court committed no error with regard to this issue.
Now that we have determined that the trial court did indeed have jurisdiction to determine costs and fees, we must next decide whether CT, as a plaintiff who was added by amendment of the original petition, has the right to pre-judgment interest dating from the filing of the original petition. We find that the trial court was correct that CT Arabi should be awarded costs and interests dating from the inception of the original lawsuit.
When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.
Pursuant to this article, once an amendment is deemed to relate back to the filing date of the original petition, prescription with regard to the amendment is interrupted as of the filing date of the original petition. Hackman v. Southern Farm Bureau Ins. Co., 629 So.2d 531 (La.App. 5 Cir. 1993); Gunter v. Plauche, 439 So.2d 437 (La. 1983). This article has also been interpreted to extend this principle to a petition that is amended to add an extra plaintiff. Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040 (La. 1985); Phillips v. Palumbo, 94-1323 (La.App. 4 Cir. 12/15/94), 648 So.2d 40; Delmore v. Hebert, 99-2061 (La.App. 1 Cir. 9/22/00), 768 So.2d 251. Therefore, if a petition is amended to add an additional plaintiff or plaintiffs, the lawsuit for all plaintiffs is deemed filed the date that the original petition was filed.
It appears that the intent of Louisiana Code of Civil Procedure, Article 1153 is to accord all claims and parties which are added by amendment the same procedural posture as the claims and parties in the original petition. We find no reason to depart from this objective. Therefore, we find that the trial court was correct in holding that the plaintiff, CT Arabi, should receive judicial interest from the date that the original petition was filed.


A. The regulations are pretty clear (DOT §173.185(c)(3) and IATA 7.1.5.5). What should be listed there is a phone number for “additional information”. There should be no extra phrasing other than phone number itself. As for listing Chemtrec, Infotrac or even Canutec, those are 3rd party Emergency Response Providers and would not be appropriate to include in that section of the marking.
Q. Does 49 CFR require segregation of Class 6.1 (PGI) from food cargo onboard vehicles?
A. Yes. Reference 49 CFR §173.25(c) and §177.841(e).
Q. Can IBC with worded hazard labels be re-shipped in Canada?
A. Since labels are permitted on IBC this should be acceptable following the provisions of TDGR 9.4. Although, for large means of containment, placards must be changed to be displayed “in accordance with Part 4…”, since 4.15.3 permits labels on IBC, this aspect of 9.4 should apply – as long as shipping documents are annotated and the vehicle is placarded appropriately.
Q. Does TDG allow the use of a placard on one side of an IBC and a label on the other?
A. This would not be permitted since TDGR 4.15.3 specifies two placards or two sets of safety marks complete with labels.
Q. Do the UN DG Regulations take precedence over national regulations?
A. No. The UN are “model recommendations”. Countries, as sovereign states, may decide whether to accept the UN Model (or other -e.g. modal) regulations unconditionally, conditionally, or partially, depending on circumstances.
Q. Is it true that a consignor in Canada is only required to retain shipping papers for two years?
A. Although the TDGR §3.11 specifies two years, §2.2.1(1) requires consideration of a five year record to be able to comply with “proof of classification” requirements. The Transport Canada “Shipping Document Guidance Bulletin” refers to “at least 2 years”. The 5 year would not apply to carriers, and (although “paper” is required on-board vehicles during transport) §3.11 permits electronic retention for both consignors and carriers. Transport Canada is considering reconciliation of §3.11 with §2.2.1 in an updated FAQ and/or amendment.
In regards to the question related to “Listing Canutec or Chemtrec on Lithium Battery Marks” and the subsequent response, in IATA’s 2018 Lithium Battery Guidance Document, on page 12 paragraph J, it mentions that it also is acceptable to use an emergency response, 24-hour phone number on the lithium battery mark.
Karrie Monette-Ishmael, thank you ever so for you post.Much thanks again.


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The protection of personal data has a high priority in our company.
The following provides you with information regarding the collection of personal data when using our website. Personal data are all data pertaining to you personally, such as name, address, email addresses, user behaviour, IP address.
We collect and use the personal data of our users solely to the extent necessary to provide a functionally operational website and our content and services. Collection and application of the personal data of our users is consistently carried out solely with the consent of the user. An exception applies in certain cases where prior acquisition of consent is not de facto possible and processing of the data in question is permitted on the basis of statutory provisions.
To the extent that we obtain the consent of the data subject for the processing of personal data, Art. 6 (1) (a) of the EU General Data Protection Regulation (GDPR) provides the legal basis for the processing of personal data.
With regard to the processing of personal data that are necessary for the performance of a contract to which the data subject is party, the commensurate legal basis is provided under Art. 6 (1) (b) GDPR. This also applies in respect of processing necessary for steps undertaken prior to entering into a contract. To the extent that processing of personal data is required for compliance with a legal obligation to which our company is subject, the commensurate legal basis is provided under Art. 6. (1) (c) GDPR.
In the event that the vital interests of the data subject or of another natural person require the processing of personal data, the commensurate legal basis is provided under Art. 6 (1) (d) GDPR.
Where processing is necessary for the purposes of the legitimate interests pursued by our company or by a third party and provided such interests are not overridden by the interests or fundamental rights and freedoms of the data subject, the commensurate legal basis for processing is provided under Art. 6 (1) (f) GDPR.
Personal data pertaining to the data subject will be promptly erased or rendered unavailable where the intended purpose of storage no longer applies. Storage may also occur where provided for by the European or national legislatures in Union directives, laws or other regulations to which the controller is subject. Data is also rendered unavailable or erased upon expiry of a storage period prescribed under the aforestated standards, save for where continued storage of the data in question is necessary for the conclusion of a contract or contract performance.
To some extent we use third-party service providers to process your data on our website. We carefully select and appoint these providers, who are subject to our instructions and regularly audited. Data is not transmitted to countries outside the EU or EEA (so-called third-countries).
These data are also stored in log files on our system; not, however, the IP addresses of the user or other data enabling assignment of the data to an individual user. Storage of these data together with other personal user data does not occur.
Legal basis for the temporary storage of data is provided under Art. 6 (1) (f) GDPR.
Temporary storage of the IP address is required by the system to facilitate delivery of the website to the user's computer. As such, the user IP address must be stored for the duration of the session.
These purposes define our legitimate interests in data processing in compliance with Art. 6 (1) (f) GDPR.
The data are erased once they are no longer required to achieve the purpose for which they were collected. Where data are collected to facilitate provision of the website, this occurs when the respective session is concluded.
Collection of data to facilitate provision of the website and the storage of data in log files is a necessary requirement for operation of the Internet site; consequently, the user is not availed of an opt-out option.
User data collected by technically necessary cookies are not used to create user profiles.
These purposes define our legitimate interests in the processing of personal data in compliance with Art. 6 (1) (f) GDPR.
Our website contains a contact form which can be used to contact us electronically. When a user employs this option, data entered into the input screen are transmitted to us and stored.
Your consent to process such data is obtained with reference to this privacy statement within the scope of the submitting procedure.
Alternatively, you can also contact us using the email address provided. In this case, personal user data that are transmitted with the email are stored.
In this connection, the data are not sent to any third parties and are used solely to process the dialogue.
The commensurate legal basis for processing the data with the consent of the user is provided under Art. 6 (1) (a) GDPR.
The commensurate legal basis for processing data transmitted within the course of sending an email is provided under Art. 6 (1) (f) GDPR. Where email contact is for the purpose of concluding a contract, the additional legal basis for commensurate processing is provided under Art. 6 (1) (b) GDPR.
We use the personal data obtained from the input screen solely for the purposes of processing your communication with us. In the case of contact by email, this also defines the requisite legitimate interests for processing the data.
Other personal data processed during the dispatching procedure serve to prevent misuse of the contact form and ensure the security of our IT systems.
The data are erased once they are no longer required to achieve the purpose for which they were collected. In respect of personal data provided within the contact form input screen and data sent by email, this is when the respective dialogue with the user has ended. Accordingly, the dialogue is deemed concluded once the relevant circumstances demonstrate that the issue has been finally resolved.
Additional personal data collected during the sending process are erased within a period of seven days at the latest.
The user may withdraw their consent for the processing of personal data at any time. Users contacting us by email can object to the storage of their personal data at any time. In such cases, the commensurate dialogue cannot be continued. Withdrawal can be effected without observing any formal requirements and should be addressed to the controller.
In any such case, all personal data stored within the course of communication will be erased.
This website uses Google Analytics, a web analysis service provided by Google Inc ('Google'). Google Analytics uses so-called 'cookies', text files that are stored on your computer to enable analysis of your website usage. The information generated by the cookie concerning your use of this website will generally be forwarded to a Google server in the USA and stored there. Within member states of the European Union or other states that are party to the European Economic Area Agreement, if IP anonymisation is activated on this website Google will first truncate your IP address. Only in exceptional cases will the full IP address be passed to and truncated by Google on a server in the USA. On behalf of the operator of this website, Google will use this information to analyse your use of the website, create reports on website activity and provide additional services associated with use of the website and the Internet to the website operator.
The IP address sent from your browser within the scope of Google Analytics will not be combined with other Google data.
This website uses Google Analytics with the extension '_anonymizeIp()', with the result that IP addresses are processed in truncated form to prevent individual persons being identified. Should any data concerning you become personally identifiable, this action will be instantly precluded and the commensurate personal data immediately erased.
We use Google Analytics to analyse use of our website and facilitate regular improvement. The statistical information obtained is used to enhance our services and make them more appealing for you as the user. For the exceptional cases where personal data is transmitted to the USA, Google has agreed to comply with the EU-US Privacy Shield, https://www.privacyshield.gov/EU-US-Framework. Legal basis for the use of Google Analytics is provided under Art. 6 (1) (f) GDPR.
You can prevent the storage of cookies by setting your browser software accordingly; however, please be aware that this may mean you are unable to use the full functionality of the website. You can also prevent the collection and processing by Google of data generated by the cookie regarding your use of the website (including your IP address) by downloading and installing the browser plug-in available under the following link: tools.google.com/dlpage/gaoptout.
The plug-in provider stores data collected in relation to you as a user profile and uses this profile for the purposes of advertising, market research and/or demand-oriented design of its website. Analysis of this kind is carried out (including for users not logged on), in particular, for the presentation of demand-oriented advertising and to inform other users of the social network about your activities on our website.
The data transfer occurs regardless of whether you have an account and are logged on with the plug-in provider. If you are logged on with the plug-in provider, the data we collect concerning you will be directly assigned to your account with the plug-in provider. If you click the activate button and, for example, link the page, the plug-in provider will also store this information in your user account and publicly share it with your contacts. We recommend that you regularly log out after using a social network and particularly before activating the button in order to prevent assignment of your profile to the plug-in provider.
a) Google Inc., 1600 Amphitheater Parkway, Mountainview, California 94043, USA; https://www.google.com/policies/privacy/partners/?hl=en. Google has agreed to comply with the EU-US Privacy Shield, https://www.privacyshield.gov/EU-US-Framework.
Legal basis for the use of plug-ins is provided under Art. 6 (1) (f) GDPR.
Plug-ins allow us to offer you the option of interacting with the social networks and other users so that we can enhance our services and make them more appealing for you as the user.
Please note that we have no influence over the data collected and data processing procedures, nor are the full extent of data collection, purposes of processing or storage periods known to us. Similarly, we do not have any information regarding the erasure of data collected by the plug-in provider.
You have the right to object to the creation of this user profile; to exercise this right you will need to contact the plug-in provider in question.
We use 'Google reCAPTCHA' (hereinafter 'reCAPTCHA') on our websites. The provider is Google Inc. 1600 Amphitheatre Parkway Mountain View, CA 94043, USA ('Google').
reCAPTCHA is used to check whether data input on our websites (e.g. in a contact form) is entered by a human or an automated program. To this end, reCAPTCHA uses various features to analyse the website user's behaviour. This analysis starts automatically when the website visitor accesses the website. reCAPTCHA evaluates various information for the analysis (e.g. IP address, length of time spent on the website by the website visitor or user mouse movements). Data collected by the analysis are sent to Google.
reCAPTCHA analyses run entirely in the background. Website visitors are not notified that such analysis is occurring.
The commensurate legal basis for data processing is provided under Art. 6 (1) (f) GDPR. The website operator has a legitimate interest in protecting its web services from misuse through automated spying and SPAM.
Each data subject has the right of access pursuant to Article 15 GDPR, the right to rectification pursuant to Article 16 GDPR, the right to erasure pursuant to Article 17 GDPR, the right to restriction of processing pursuant to Article 18 GDPR, the right to object pursuant to Article 21 GDPR and the right to data portability pursuant to Article 20 GDPR. With respect to the right of access and the right to erasure, limitations in accordance with Ss. 34 and 35 BDSG (German Federal Data Protection Act) apply. In addition, the right to lodge a complaint with a supervisory authority is also afforded (Article 77 GDPR in combination with S. 19 BDSG).
Consent granted to us for the processing of personal data can be withdrawn at any time. This also applies for withdrawal of declarations of consent communicated to us prior to application of the EU General Data Protection Regulation, i. e. before 25 May 2018. Please note that withdrawal has future effect and will not apply to processing carried out prior to withdrawal. Withdrawal can be effected without observing any formal requirements and should be addressed to the controller.

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