Before WALKER, CABRANES, and CARNEY, Circuit Judges. Mark A. Berube, Mishcon de Reya New York LLP, New York, NY, for Defendants–Appellants. Eric M. Creizman, Creizman PLLC, New York, NY, for Defendant–Appellant David Bengis. Jared Lenow (Brent S. Wible, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Arnold Bengis and Jeffrey Noll pleaded guilty to conspiracy to commit smuggling and violate the Lacey Act, which prohibits trade in illegally taken fish and wildlife, and to substantive violations of the Lacey Act. David Bengis pleaded guilty to conspiracy to violate the Lacey Act. The district court (Lewis A. Kaplan, J.) entered a restitution order requiring Arnold Bengis, Noll, and David Bengis (jointly, “defendants”) to pay $22,446,720 to South Africa. Defendants appeal the restitution order on a variety of grounds. In this opinion, we address only: (1) the government's contention that the appeal should be dismissed; (2) the defendants' contention that the restitution order violated their Sixth Amendment rights; and (3) David Bengis's contention that he should not be held liable for the entire restitution amount. We affirm the district court's judgment except as to the extent of David Bengis's liability and we remand the restitution order entered against David Bengis for further proceedings. Defendants' remaining arguments are resolved in a summary order filed simultaneously with this opinion.
From 1987 to 2001, the defendants engaged in an elaborate scheme to harvest large quantities of South Coast and West Coast rock lobsters from South African waters for export to the United States in violation of both South African and U.S. law. At all relevant times, the South African Department of Marine and Coastal Management maintained fishing season quotas and issued harvesting and exporting permits for rock lobsters. Defendants, through their company, Hout Bay Fishing Industries Ltd. (“Hout Bay”), harvested rock lobsters in amounts that exceeded the authorized quotas and exported those lobsters to the United States.
In May 2001, South Africa seized a container of unlawfully harvested lobsters. South Africa declined to prosecute the individual defendants because it determined they were beyond the reach of South African authorities, but it charged Hout Bay with overfishing of South and West Coast Rock Lobsters in violation of South Africa's Marine Living Resources Act 18 of 1998. Arnold Bengis returned to South Africa and pleaded guilty on behalf of Hout Bay.
South Africa cooperated with a parallel investigation conducted by the United States. The individual defendants were eventually indicted in the United States District Court for the Southern District of New York, and, on March 2, 2004, Arnold Bengis and Jeffrey Noll pleaded guilty to: (i) violations of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A), which makes it a crime to, inter alia, import fish taken in violation of foreign law; and (ii) conspiracy to violate the Lacey Act and to commit smuggling, 18 U.S.C. § 545, in violation of 18 U.S.C. § 371. On April 2, 2004, David Bengis pleaded guilty to a misdemeanor count of conspiracy to violate the Lacey Act. The defendants were sentenced principally to terms of imprisonment of 46 months (Arnold Bengis), 30 months (Jeffrey Noll), and 12 months (David Bengis) and to a forfeiture order of $13,300,000 to the United States. Although the plea agreements acknowledged that restitution was a further possibility, the district court deferred addressing restitution.
The United States thereafter sought restitution on behalf of South Africa. In support of its application for restitution, the United States submitted a report prepared by the Ocean and Land Resource Assessment Consultants (“OLRAC”) that calculated restitution under two separate methods. The first method calculated the cost to South Africa of restoring the rock lobster fishery to the level that would have existed if the defendants had not engaged in overharvesting (the “catch forfeit” method); restitution under this method amounted to $46,775,150. The second method calculated the market value of the overharvested lobsters (the “market value” method); restitution under this method amounted to $61,932,630.
The district court denied the government's request for restitution under both the Mandatory Victims Restitution Act of 1996 (“MVRA”) and the Victim and Witness Protection Act of 1982 (“VWPA”) because it concluded that South Africa was not a “victim” of the defendants' offenses. We vacated these orders on the basis that South Africa had a property interest in the illegally harvested lobsters and was therefore a “victim” under both the MVRA and VWPA. Because of South Africa's property interest in the lobsters, we held that the MVRA governed the restitution award to South Africa and remanded for calculation of the appropriate restitution amount. United States v. Bengis, 631 F.3d 33, 42 (2d Cir.2011), cert. denied, ––– U.S. ––––, 131 S.Ct. 2911, 179 L.Ed.2d 1262 (2011).
On remand, the district court referred the government's request for restitution to Magistrate Judge Andrew J. Peck. Using the market value method, the magistrate judge recommended a restitution award of $54,883,550, which represented the market value of the illegally harvested lobster offset by the $7,049,080 the defendants had already paid to South Africa.
On March 11, 2013, the government moved to restrain the defendants from transferring their assets held in three trusts at the SG Hambros Bank located in the Channel Islands in the United Kingdom and to direct the defendants to deposit $54,883,550 with the Registry of the Court. On March 22, 2013, the Bengises made substantial changes to the three trusts. Specifically, David Bengis was removed as a beneficiary of two of the trusts, Arnold Bengis resigned as protector, and the Bengises appointed their family lawyer, Basil De Sousa, as the new protector.
On March 25, 2013, the district court entered an interim order restraining transfer or disposition of the assets held at SG Hambros except to the extent those assets exceeded $54,883,550. On June 14, 2013, the district court adopted the magistrate judge's recommended restitution order in part. The district court found that the government only had shown that the West Coast (and not the South Coast) rock lobsters were intended for the United States and that the restitution order should be limited to the market value of those lobsters. Therefore, the district court entered a restitution order of $22,446,720 and modified its restraining order to reflect the reduced amount of restitution.
Meanwhile, on June 10, 2013, before the restraining order was modified, the trustees of the SG Hambros trusts requested the bank to transfer the trusts' assets to a Swiss bank. Relying on the district court's restraining order, SG Hambros refused to comply with this request. The trustees then sued SG Hambros in the Channel Islands seeking to compel the transfer.
On October 17, 2013, the district court ordered the defendants and “all persons in active concert” with them to deposit funds up to the restitution amount with the Clerk of Court (the “deposit order”) and enjoined defendants and “all persons in active concert” with them from encumbering or transferring to any entity other than the Clerk of Court any property in which the defendants held an interest. Defendants' 2014 App'x 200. The defendants timely appealed both the underlying restitution award and the deposit order.
We review a district court's order of restitution and deposit order for abuse of discretion. See United States v. Ojeikere, 545 F.3d 220, 222 (2d Cir.2008). The district court's legal conclusions are reviewed de novo, and its factual findings for clear error. United States v. Amato, 540 F.3d 153, 158 (2d Cir.2008).
Before turning to the merits of defendants' appeal, we address the government's contention that the appeal should be dismissed because the defendants tried to evade the court's power to execute its mandate. In support, the government points to the defendants' refusal to comply with the deposit order and the trustee's suit seeking to compel a transfer of the SG Hambros assets to a Swiss bank.
The government relies on Stern v. United States, 249 F.2d 720 (2d Cir.1957). In Stern, we entered a provisional order dismissing an appeal because the defendants showed “a determined effort to deprive the court of power to execute its mandate.” Id . at 722. Specifically, the defendants had liquidated their assets, abandoned their U.S. citizenship, and fled to Czechoslovakia in a “successful attempt to render the court powerless to enforce its decree.” Id.
In this case the actions of the defendants are more benign. The defendants, who have served their sentences, have continued to submit to the jurisdiction of the district court, have not renounced their U.S. citizenship, and are in no sense fugitives. As the government conceded at oral argument, the defendants have continued to appear at court proceedings when required. In addition, the defendants' efforts to transfer assets from SG Hambros to the Swiss bank were unsuccessful. Therefore, although we are troubled by the defendants' apparent efforts to place their assets beyond the court's reach rather than comply with the deposit order, the SG Hambros assets appear to remain available to satisfy the restitution award and the district court's contempt power reaches the defendants. Finally and significantly, the government has not sought to hold the defendants in contempt. In these circumstances, we decline to exercise our discretion to deny the defendants appellate review. See In re Feit & Drexler, Inc., 760 F.2d 406, 414 (2d Cir.1985) (declining to dismiss appeal where the defendant remained subject to the court's jurisdiction and the contempt process was available).
Turning to the merits of the defendants' attack on the restitution order, we first address defendants' contention that the order violated their Sixth Amendment protections under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Under the sentencing scheme at issue in Apprendi, a defendant found guilty by a jury beyond a reasonable doubt for possession of a prohibited weapon was guilty of a second-degree offense. If in addition, however, a judge found by a preponderance of the evidence that the defendant's purpose for unlawfully possessing the weapon was to intimidate his victim on the basis of a particular characteristic the victim possessed, the judge could impose punishment identical to that which New Jersey provided for crimes of the first degree. Id. at 491. The effect of this enhancement was to increase the maximum penalty the defendant faced from 10 years to 20 years. Id. at 495. The Supreme Court held that this scheme violated the defendant's Sixth Amendment rights because “[o]ther 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.” Id. at 490.
In this case, the restitution amount reflects South Africa's loss, which was calculated based on the market value of the illegally harvested lobsters. The defendants' plea agreements did not specify the value of the rock lobsters they illegally imported. Defendants therefore argue that, under Apprendi, the restitution amount cannot be based on the value of the lobsters because that fact was neither admitted by the defendants nor found by a jury beyond a reasonable doubt.
This argument is unavailing because, unlike the terms of imprisonment at issue in Apprendi, the MVRA and VWPA specify no maximum restitution amount. Therefore, a judge cannot find facts that would cause the amount to exceed a prescribed statutory maximum. See United States v. Reifler, 446 F.3d 65, 118 (2d Cir.2006) (holding that restitution is an indeterminate system that “fixes no range of permissible restitutionary amounts and sets no maximum amount ․ that the court may order”).
Defendants also argue that the district court's calculation of South Africa's loss required it to engage in the same type of factfinding as the district court that imposed the fine held to violate Apprendi in Southern Union Co. v. United States, ––– U.S. ––––, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012). In that case, the jury found that the defendant had violated an environmental statute, but it was not asked to determine the precise duration of the violation. The district court nevertheless determined that the defendant had violated the statute for 762 days and assessed an $18 million fine based on a statutory maximum of $50,000 per day. Id. at 2349. The Court held that, under Apprendi, the district court's sentence could not exceed the $50,000 statutory maximum fine because it relied on facts that were not reflected in the jury verdict or admitted by the defendant. Id. at 2350.
Southern Union is inapposite. In Southern Union, but for the district court's finding that the defendant had violated the statute for 762 days, the maximum fine the defendant would have faced was $50,000. Id. at 2349. Thus, the district court imposed the fine above a statutory maximum. In this case there never was a determinate maximum restitution amount that defendants faced; under the MVRA, restitution is always determined with respect to the value of property that is lost. See 18 U.S.C. § 3663A(b). The district court could not, and did not, exceed a maximum that did not exist. See Southern Union Co., 132 S.Ct. at 2353 (“Nor, a fortiori, could there be an Apprendi violation where no maximum is prescribed.”). Therefore, any factfinding by the district court was not only permissible under Apprendi but was required to determine the appropriate amount of restitution under the MVRA.
Defendants' final argument is that restitution is similar to a fine whose maximum is determined with reference to the victim's loss. As defendants point out, the Court in Southern Union referenced statutes in which the fine may be pegged to some factor of actual loss. 132 S.Ct. at 2351 n. 4 (citing, inter alia, 18 U.S.C. § 3571(d), 18 U.S.C. § 645, and 18 U.S.C. § 201(b)). But each of those statutes posits two alternative fine amounts: a determinate statutory maximum and an amount based on the value of loss caused by the defendant. See, e.g., 18 U.S.C. § 3571 (prescribing maximum fines based on the class of offense and “alternative fines” based on gain or loss) (emphasis added).
The Court determined that Apprendi was implicated when the district court chose to exercise its discretion to use an alternative valuation that exceeded the statutory maximum based on facts not found by the jury. See Southern Union Co., 132 S.Ct. at 2351 (“[O]ur decisions broadly prohibit judicial factfinding that increases maximum criminal sentences, penalties, or punishments․” (internal quotation marks and alterations omitted)). In contrast, estitution under the MVRA and VWPA has only one valuation—the amount of the victim's loss. There is no alternative maximum penalty. In sum, where, as here, there is no determinate statutory maximum that a district court can exceed, there is no range prescribed by statute and thus there can be no Apprendi violation.
For these reasons, we adhere to our decision in United States v. Reifler and join our sister circuits in concluding that judicial factfinding to determine the appropriate amount of restitution under a statute that does not prescribe a maximum does not implicate a defendant's Sixth Amendment rights. See United States v. Day, 700 F.3d 713, 732 (4th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 2038, 185 L.Ed.2d 887 (2013); United States v. Green, 722 F.3d 1146, 1150 (9th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 658, 187 L.Ed.2d 422 (2013); see also United States v. Wolfe, 701 F.3d 1206, 1217 (7th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 2797, 186 L.Ed.2d 860 (2013) (finding that restitution is not a criminal penalty). Therefore the district court did not abuse its discretion by fixing the restitution amount at $22,446,720.
The district court ordered Arnold Bengis, Jeffrey Noll, and David Bengis to “pay restitution to the Republic of South Africa, jointly and severally, in the amount of $22,446,720.” Defendants' 2013 App'x 325. Separately from the other defendants, David Bengis argues that, because he allocuted to misdemeanor involvement in a conspiracy only from 1999 through August 1, 2001, the restitution ordered against him must exclude losses caused by the acts of the other defendants prior to 1999. The government responds that, because the primary purpose of the MVRA is to make victims of crime whole, the district court acted within its discretion by holding David Bengis jointly and severally liable for the entire restitution amount.
In general, “one who joins an existing conspiracy takes it as it is, and is therefore held accountable for the prior conduct of co-conspirators.” United States v. Sansone, 231 F.2d 887, 893 (2d Cir.1956). In the context of sentencing for drug conspiracies, however, we have held that “[t]he late-entering coconspirator should be sentenced on the basis of the full quantity of narcotics distributed by other members of the conspiracy only if, when he joined the conspiracy, he could reasonably foresee the distributions of future amounts, or knew or reasonably should have known what the past quantities were.” United States v. Miranda–Ortiz, 926 F.2d 172, 178 (2d Cir.1991) (emphasis added).
Restitution must be determined in a similar manner. See United States v. Boyd, 222 F.3d 47, 51 (2d Cir.2000) (per curiam) (finding no plain error where the district court imposed a restitution order holding the defendant “liable for the reasonably foreseeable acts of all co-conspirators”). Thus, if David Bengis's understanding of the scope of the conspiracy he joined in 1999 was such that he knew or reasonably should have known about some or all of the conspiracy's past imports, his restitution order should encompass those amounts. However, if David Bengis joined the conspiracy without reasonable knowledge of his co-conspirators' past activities, then he should not be held liable for the loss caused by those activities. Of course, he would remain jointly and severally liable for the losses caused by the conspiracy after he joined it.
On the record before us, we cannot determine whether David Bengis, when he joined the conspiracy in 1999, understood the scope of the conspiracy, such that he knew or should have known the extent of its adverse economic impact. Accordingly, we remand this matter to the district court in accordance with the procedures we set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994), to determine whether David Bengis knew or reasonably should have known the scope and impact of any or all of the past activities of the conspiracy he joined.
On remand, if the district court finds that a preponderance of the evidence shows that David Bengis knew or should have known of the scope and impact of the conspiracy prior to joining it, then the restitution order that has been entered against him may stand. See United States v. Martinez, 987 F.2d 920, 926 (2d Cir.1993) (preponderance of the evidence standard applies to determination of whether defendant reasonably should have known the quantities of drugs sold by the conspiracy). If the district court determines, however, that the full scope and impact of the past activities of the conspiracy would not have been reasonably known to this defendant, then the district court should vacate the judgment and enter a new order reflecting the appropriate amount of restitution for which David Bengis is liable. This amount should include the amount of losses that occurred after David Bengis joined the conspiracy and may include any amounts of prior losses of which he would have been reasonably aware. In the interest of judicial economy, this panel will retain jurisdiction over any subsequent appeal from the district court; either party may notify the Clerk of a renewed appeal within fourteen days of the district court's decision. See Jacobson, 15 F.3d at 22.
We have considered and find to be without merit the defendants' other arguments, including that (1) the district court abused its discretion by relying on the OLRAC Report and Ray Declaration in determining the appropriate amount of restitution; (2) South Africa was not a “victim” of David Bengis's offense; and (3) the district court abused its discretion by entering the deposit order against the defendants. The disposition of these arguments is set forth in a summary order filed simultaneously with this opinion.
For the foregoing reasons, the judgment is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this opinion.


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The case of Food Lion, Inc. v. McNeill, 393 MD. 715 (2006) stands for the proposition that an attorney can’t wait until trial to object to the introduction of evidence when the objection should have been raised earlier. The issue involved whether something was timely provided during discovery. This case suggests that it is counsel’s responsibility to take a deposition, file a Motion to Compel or pursue further discovery if dissatisfied with discovery responses.
Deposition testimony of a party can be offered at trial as long as the person remains a party to the case. If the person is no longer a party, the deposition testimony is no longer admissible unless unavailability for trial is demonstrated. See Laney v. Daniel.
The Fourth Circuit precedent in favor of exclusion of malingering testimony is found in United States v. Cecil, 836 F 2d, 1431,1441. Federal Rules of Evidence 704 permits an expert to testify on ultimate issues if the District Judge finds such evidence helpful but that principle has never been extended to the right of a psychiatrist to give an opinion on the credibility of a witness. Determination of credibility is one strictly for the jury. For a good discussion about malingering as evidence see the book written by Rick Friedman title Polarizing the Case-Exposing and Defeating the Malingering Myth.
It is inappropriate for an expert to comment on the credibility of the Plaintiff. Determining credibility is solely within the province of the jury. See Globe Sec. Systems Co. v. Sterling, 79 Md. App. 303 (1989); Robinson v. State, 151 Md. App. 384 (2003); Hutton v. State, 339 Md. 480 (1995); Bohnert v. State, 312 Md. 266 (1988); Hall v. State, 107 Md. App. 684 (1966).
These may not be discoverable, see Crowe Countrywide Realty Associates, Co., LLC v. Novare Engineering, Inc. 891 a. 2d 838 (R.I. 2006). However, after the 1993 amendments to the Federal Rules virtually everything appears to be discoverable. See Muscleman v. Phillips, 176 F.R.D. 194 (D.M.D. 1997).
An expert witness is required to prove medical and/or psychiatric conditions that are not patently obvious to a lay person. See Wilhelm v. State Traffic Safety Commission, 230 MD. 91 (1962).
In order to prove lost wages and impaired earning capacity, see Stein on Personal Injury Damages, section 6:18. Expert testimony is required to establish a plaintiff’s accident related disability, but expert testimony is not generally required to establish impairment of earning capacity. However, in the case of a non-obvious injury, expert testimony is required to establish loss of future earning capacity. The real issue is often one of causality where the question is did the injury sustained by the plaintiff cause the loss of earning capacity, a factual question on which expert testimony may obviously shed some light.
See Maryland Rule 5-703. An expert can rely on hearsay or otherwise inadmissible evidence (including reports and records of treating doctors). Rule 5-704 allows opinions on the ultimate issue. Federal Rule 703 and 704 are similar. On the other hand, the doctor probably cannot testify to opinions of other doctors.
There is case law that suggests there is an enhanced duty to be observant in a school zone. See Lavine v. Beebe 238 MD 365.
One of the controlling cases regarding the use of photos is Mason v. Lynch 388 MD 37, 878 A 2nd 588. Essentially, the court has discretion regarding whether to allow use of photos of minor property damage in an action for personal injuries.
To deal with issues involving vehicles that skid see Larkin v. Baltimore Transit, 249 MD 305. Billmeyer v. State F/U/O. Whiteman 191 MD 418;Wolf v. State F/U/O Brown 173 MD 103; Trusty v. Wooden 251 MD 294.
The leading Maryland case on attorney work product is EIduPONT v. Forman-Pack 351 MD 396, 718 A. 2nd, 1129.
See Rule 16-1001 through 16-1011 and particularly 16-1007 (c) See also Commercial Law Article 14-3402. Social Security Numbers should not be disclosed in court documents.
These doctrines only bind parties to prior litigation and those in privity with those parties. In other words, one can use these doctrines against someone who had their day in court but they cannot use it against someone who did not unless they were in privity with the person who had their day in court.
Generally, defense attorneys cannot informally interview plaintiff’s prior treating physicians under HIPAA regulations. See Austin v. Moreland, 288 GA. App. 270. The essence of the ruling is that HIPAA pre-empts state law and therefore precludes such contact.
Issues involving the admissibility of a lay opinion on intoxication may occur in civil cases when a party seeks to comply with a rule that in order for evidence of intoxication to be admissible, the proponent of the evidence must demonstrate some causal connection between the allegedly intoxicated state of the person and his or her conduct of behavior. Mitchell v. Montgomery County, 88 MD. App 542 (1991). The results of breath and blood tests for alcohol are admissible and certain presumptions apply to their results. See MD. Code, Cts. and Jud. Proc. Art. Section 10-307. But such tests results are not necessary for a conviction in a criminal case or a finding of liability in a civil case, and in their absence, other competent evidence may also be used to prove intoxication. See Major v. State, 31 MD App 590, 593-94 (1976). See also Nast v. Lockett, 312 MD 343, 355 (1988). The Court stated “we emphasize that in both civil actions and criminal causes, competent evidence other than the results of chemical analysis of the person’s blood may be induced to show that person’s degree of impairment. See also Section 10-308 of Courts and Judicial Proceedings Article. The admissability of lay opinions is governed by Rule 5-701. If the witness is not testifying as an expert, the witness’s testimony in the form of opinion or inference is limited to those opinions or inferences which are: 1) rationally based on the perception of the witness and 2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. In his book on Maryland evidence law, Chief Judge Murphy of the Court of Special Appeals summarized the rule on the admissibility of lay opinions for alcohol or drug intoxication. Essentially, a witness can express an opinion about a person’s age and whether someone was angry, arrogant, boisterous, excited, nervous or under the influence of alcohol because these are kinds of observations we make on a daily basis.” Bruce v. State, 328 MD 594 (1992). On the other hand, a lay witness is not permitted to express an opinion that someone was under the influence of a particular drug. Persons without some demonstrated expertise are prohibited from expressing an opinion that a person was under the influence of drugs because observations of persons on drugs are considered so unusual that the average person is unlikely to make this observation on a frequent basis. Matthews v. State, 68 MD App 282 (1986). See Maryland Evidence Handbook Section 603 (B) et 249. See also Warren v. State, 164 MD App 153. No field sobriety tests were performed and the defendant declined to take a breath test. However, there was a strong odor of alcohol, the defendant’s eyes were watery and bloodshot, the defendant fumbled with his wallet while searching for his driver’s license and passed over the license several times and his speech was incoherently slurred. The officer had to laser him after he did not respond to repeated requests to turn off his car’s ignition and get out of the car. After he got out of the car, he was very wobbly and unsteady on his feet and the officer leaned him against the car. At the police station, the defendant collapsed while walking up steps and vomited all over the floor. The Court held that the judge was within his discretion in admitting those lay opinions. The Court felt that perceiving whether someone is intoxicated does not require specialized knowledge because the condition of intoxication and its common accompaniments are a matter of general knowledge. In a civil case it is probably necessary to show evidence not only of the smell of alcohol but also to the extent of any impairment or as how any impairment resulted in the accident. Each case will turn on its own facts.
There sometimes arise issues as to the sobriety or use of drugs of the Plaintiff in an action. See Johnny Allen-Mitchell v. Montgomery County, 88 Md. App. 542, 596 A. 2nd 93 for case law on the topic.
See Maurer v. Pennsylvania National Mutual, 131, September term, 2006 in the Court of Special Appeals of Maryland. It would be improper for a court to instruct a jury under the motor vehicle provisions of the Maryland Code regarding driving while intoxicated or impaired as it relates to a passenger and suggest that it is evidence of contributory negligence. Moreover, showing a violation of the relevant statute is not actionable unless it is proximate cause of the harm, see Atlantic Mutual v Kenny, 323 MD 116 (1991). Similarly, Maurer’s use of his false identification was not the proximate cause of his injuries in this case.
Maryland Rules of Procedure, Rule 2-415 is the Rule one needs to consider regarding objections made at a de benne esse deposition. Objections made during the deposition shall be recorded with the testimony. An objection to the manner of taking the deposition to form of questions or answers to the oath or affirmation, to the conduct of the parties or any kind of error or irregularity that might be obviated or removed if objected to at the time of its occurrence, is waived unless a timely objection is made during the deposition. An objection to the competency of a witness or the competency, relevancy or materiality of testimony is not waived by failure to make before or during a deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time. The grounds of an objection need not be stated unless requested by a party. If the ground of objection is stated, it shall be stated specifically, concisely in a non-argumentative and non-suggestive manner. If a party decides to make an objection for the record during the taking of a deposition that reasonably could have the effect of coaching or suggesting to the deponent how to answer, then the deponent, at the request of any party, shall be excused from the deposition during the making of the objection.
Often, counsel agree at the outset of the deposition, that the grounds for the deposition shall be brief and on the record during a video deposition itself and any longer explanation of the grounds may take place on the transcript only for ease in editing the video deposition at trial in case a court makes a ruling requiring editing.
See Lorraine v. Markel American Insurance Company, 241 FRD 534.
See Faith v. Keefer, 127, MD App. 706, denied 367 MD 191.
The Plaintiff must prove future lost earnings but also must reduce the claim to what is called present value. This essentially means what it would cost to purchase an annuity, for example, today that would pay out what the future lost wage claim would be. See Lewin Realty III, Inc. v. Brooks 138 Md. App. 244 ,771 A. 2nd 446.
See Rule 2-415 (d). This does allow substantive changes but it also allows further discovery.
A person can complain of emotional distress as a result of observing another person’s injury if the jury is persuaded that it resulted in physical injury or any objective manifestation. For example, a person who physically pulled dogs off of a child, there could be a recovery for emotional distress. See Beynon v. Montgomery County CableVision L.P. 351 MD 460, 497 (1998). Damages for emotional distress or mental anguish are recoverable in Maryland provided it is proximately caused by the wrongful act of the defendant and it results in a physical injury or is capable of objective determination. See also Bowman v. Williams, 164 MD 397 (1933) Where a person observed a truck going out of control on a street and crashing into the basement below him where his two children were. The plaintiff was not physically injured but suffered a severe emotional injury. In this case, the person was found to be in the “zone of danger”. See also Scott v. John H. Hampshire, Inc., 246 MD 171 (1967); Boddie v. Scott 124 MD App 375 (1999). For an eloquent discussion by Justice Cardozo, see Wagner v. International Railway Company, 133 N.E. 437 (N.Y. 1921). There is a distinction however, that there can be no recovery for emotional distress caused by negligently inflicted damage to a person’s property. The key in these cases is whether a person is in a zone of danger and therefore may very possibly suffer injury.
See Seites v McGinley, 84 MD App 292 (1990) that speaks to the apportionment issue for a pre-existing injury versus a new injury. It is the plaintiff’s burden to prove the apportionment.
See King v. State Farm Insurance Automobile Co., 157 Md. App.. 287 (2004). In this case, the individual tortfeasor was not a party in the case at trial so it is different than a case where the party is at trial. There are out of state cases where the party is at trial that support naming the insurance company. See Earle v. Cobb, 156 S.W. 3d 257 (Ky. 2005) and Lomez v. Geico General Insurance Co., 803 So. 2d 593 (Fla.2001). Also consider the Court of Appeals decision in State v. Bowers, 349 Md. 710 (1998) which expresses disfavor of “sham” trials”.
See Haney v. Gregory, a Court of Special Appeals opinion issued November 30, 2007. In this rear-end collision the defendant claimed a sudden emergency and got such an instruction. The court held that the evidence did not support the giving of the instruction.
See Nationwide Mutual insurance Co. v. Gail Anderson, 160 Md. App. 348 (2004). The Court of Appeals reviewed the last clear chance doctrine and indicated it required primary and contributory negligence of the parties, a showing by the plaintiff of something new and sequential which affords the defendant a fresh opportunity (of which the defendant fails to avail himself or herself) to avert the consequence of his/her original negligence. In this case the estate of a 16 year old intoxicated, unlicensed driver sued the 29 year old defendant/passenger on the theory that the passenger had the last clear chance to prevent the minor from crashing into another car, causing the vehicle in which they were riding to flip over and coming to a rest on its roof, killing the 16 year old driver. Because the negligence of the parties was concurrent and there was no fresh opportunity on the part of the passenger to avid the danger and because the party in helpless peril and the party in position to avoid danger by being in control of the instrumentality were the same person, last clear chance was inapplicable.
The right to recover the value of medical care provided gratuitously should be argued also as the basis for using medical bills discharged in bankruptcy. Similarly, the plaintiff can rely on the collateral source rule case of Plank v. Sommers, 203 MD 552 (1954). In this case, a Court of Appeals adopted the rule that where the hospital and medical services are furnished gratuitously to the injured party, he can recover the value of those services from the tort feasor. One could also argue that the authorization and assignment prepared and signed by the plaintiff requires the medical bill to be paid out of any recovery and therefore it should be permitted in evidence. Similarly, that result would be consistent with the philosophy of bankruptcy. Hernandez v. Southern Hospital Association, Inc., 319 MD 226 also suggests that a patient’s obligation to the health care providers for expenses where an executed assignment has been provided is not discharged in bankruptcy. The reason is that the assignee of it chose in action acquires an equitable lien upon the outcome which, unless disallowed or voided, survives the bankruptcy.
With regard to lack of supervision on a school ground, look at the case of Segerman v. Jones.
See Aetna Casualty Ensurity Company v. Kuhl, 296 MD 446 (1983).
See Rule 5-902 b. Obtain a written certificate from the provider.
See Lakewood Engineering and Manufacturing Co., INC. v. James Quinn, et al. , 91 Md. App.. 375, 604 A. 2d 535 (1992). This stands for the proposition that a person can give the value of an item of normal consumer goods as that does not take any expertise. However, if a rare painting or a house, for example, were involved, an expert would be necessary. See also Hale v. Hale, 74 Md. App. 555; Bastian v. Valentina Laffin, et al, 54 Md. App. 247 (1983); Smith v. Potomac Electric Power Co., 236 Md. 51(1964).
See Benzinger v. Hemler, 134 Md. 581(1919) which stands for the proposition that if there is a dispute about the Will, the privilege will be deemed waived. After death, the Personal representative is permitted to waive the privilege as well.
See Barrett v. Nwaba decided October, 2006 which discusses the rights of a person entering a right lane of a multi-lane road when another vehicle moves into that lane that was already on the road. The boulevard rule is discussed at length in the case of Dunnil v. Bloomberg, 228 Md. 230, 179 A. 2d 371, 374 (1962). The court stated that only in rare instances is it proper to submit to the jury the issue of negligence or contributory negligence on the part of the favored driver. Nor does the fact that the favored driver was exceeding the speed limit somewhat of itself constitute negligence or excuse the defendant’s negligence. See also Covington v. Gernet, 280 Md. 322 (1977); Schwier v. Gray, 277 Md. 631 (1976); Brown v. Ellis, 236 Md. 487 (1964); Dean v. Redmiles, 280 md. 230 (1977); Harper v. Higgs, 225 Md. 24 (1961); Kopitsky v. Boyd, 277 Md. 491 (1976). Many of these cases suggest it is not appropriate to try to make precise calculations about speed which cannot be expected of a reasonably prudent favored driver when immediately confronted by an intrusion upon his right of way.
The so called boulevard rule is codified in Md. Code, Transportation Article, Section 21-403, 21-404. It imposes a duty on a driver entering or crossing a highway from another highway, private roadway, driveway or other place to stop and yield the right of way to any through traffic on the highway. See Barrett v. Nwaba, 885 A. 2d 392 (Md. 2005); Washington Metro Area Transit Auth. V. Seymour, 387 Md. 217 (2005). The driver on the favored road is not required to slow down at every intersecting highway.
Maryland applies the substantive law of the place where the tort occurred. For example, if an accident happens in Delaware it would be likely to apply Delaware law because there is no cap on damages and there is comparative negligence. In Erie v. Heffernon, decided by the Court of Appeals on April 10, 2007, the Court held that even though Maryland had strong public policy in favor of non-economic cap, the Delaware law thought different and did not offend Maryland law and therefore Maryland would not apply the cap. On UM or UIM claims, since these are contract actions, Maryland applies the law of the place where the contract is entered into.
See Maryland Code Health Occupations Article, Section 14-410 (a). Evidence indicating sanctions against doctors is not admissible.
In order to introduce a webpage from a website, one would need to not only show that it was on the particular website but that it was authentic. A third party, for example, might have hacked into the site and changed it. See United States v. Jackson, 208 F. 3d 633 (7th CIR. 2000). Another important opinion regarding authenticating electronically stored information can be found in Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.Md 2007).
Any one party recording of a conversation in Maryland is illegal and is not admissible in evidence. If a conspiracy is alleged and a court order is obtained it might then be admissible. See Courts & Judicial proceedings 10-405(b). the taping must otherwise be consensual.
See the case of Norris v. Ross Stores, Inc., 159 Md. App., 3232, 859 A.2d 266 (2004). The case stands for the proposition that shelves in a department store are within the exclusive control of the proprietor absent evidence that no customer was around them when they collapsed.
Each case will be decided on its own merits. See Cutchin v. State, 143 Md. App. 81, 792 A. 2d 359 (2002) which adopted a test to determine insurer communications are privileged. The test seems to be whether the dominant purpose of the communication was for the insured’s defense and whether the insured had a reasonable expectation of privacy. The court placed the burden on the party claiming the privilege. If the statement was made at the adjuster’s request, the adjuster was not a lawyer or acting on behalf of counsel, and the statement was not requested by an identified counsel for his/her use thwe statement may be discovered.
Detailed disclosures need not be provided for “hybrid” fact/expert witnesses such as treating physicians. This is consistent with Sullivan v. Glock, Inc., 175 F.R.D. 497 where the court held that to the extent that the source of the facts which form the basis for a treating physicians opinions derive from information learned during the actual treatment of the patient-as opposed to being subsequently supplied by an attorney involved in the case concerning the condition or injury, then no 26(a)(2) disclosure is required. However, when a physician relies on materials provided by counsel or receives materials outside the scope of his or her treatment of the patient, , then the requirements of 26(a)(2) apply and the failure to satisfy those requirements mandates exclusion of the witness’s testimony pursuant to Fed. R. Civ. P. 37(c)(1). See also Jay E. Greenig, Jeffrey Kinsler, Handbook of Federal Civil Discovery and Disclosure, Section 1.38 (2nd ed. 2006). See also Hall v. Sykes, 164 F.R.D. 46, 48-49 and Wreath v. United States, 161 F.R.D. 448.
See William Daubert, et ux., Individually and as Guardian ad Litem for Jason Daubert, et al Petitioners v. Merrell Dow Pharmaceuticals, Inc., 509 U.S._, 125 L Ed 2d 469, 113 S. Ct _ . See also Samuel v. Ford Motor Company, et al, 96 F. Supp. 2d 491. See Fed. Rules Evid. Rules 104(a), 702, 28 U.S.C.A.
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80. Veerman, E. C.,, M. Valentijn-Benz,, K. Nazmi,, A. L. Ruissen,, E. Walgreen-Weterings,, J. van Marle,, A. B. Doust,, W. van’t Hof,, J. G. Bolscher, and, A. V. Amerongen. 2007. Energy depletion protects Candida albicans against antimicrobial peptides by rigidifying its cell membrane. J. Biol. Chem. 282: 18831– 18841.
81. Vitorino, R.,, M. J. Calheiros-Lobo,, J. A. Duarte,, P. M. Domingues, and, F. M. Amado. 2008. Peptide profile of human acquired enamel pellicle using MALDI tandem MS. J. Sep. Sci. 31: 523– 537.
82. Vylkova, S.,, W. S. Jang,, W. Li,, N. Nayyar, and, M. Edgerton. 2007. Histatin 5 initiates osmotic stress response in Candida albicans via activation of the Hog1 mitogen-activated protein kinase pathway. Eukaryot. Cell 6: 1876– 1888.
83. Vylkova, S.,, X. S. Li,, J. C. Berner, and, M. Edgerton. 2006. Distinct antifungal mechanisms: beta-defensins require Candida albicans Ssa1 protein, while Trk1p mediates activity of cysteine-free cationic peptides. Antimicrob. Agents Chemother. 50: 324– 331.
84. Wunder, D.,, J. Dong,, D. Baev, and, M. Edgerton. 2004. Human salivary histatin 5 fungicidal action does not induce programmed cell death pathways in Candida albicans. Antimicrob. Agents Chemother. 48: 110– 115.
85. Xu, T.,, S. M. Levitz,, R. D. Diamond, and, F. G. Oppenheim. 1991. Anticandidal activity of major human salivary histatins. Infect. Immun. 59: 2549– 2554.
86. Xu, Y.,, I. Ambudkar,, H. Yamagishi,, W. Swaim,, T. J. Walsh, and, B. C. O’Connell. 1999. Histatin 3-mediated killing of Candida albicans: effect of extracellular salt concentration on binding and internalization. Antimicrob. Agents Chemother. 43: 2256– 2262.
87. Yin, A.,, H. C. Margolis,, J. Grogan,, Y. Yao,, R. F. Troxler, and, F. G. Oppenheim. 2003. Physical parameters of hydroxyapatite adsorption and effect on candidacidal activity of histatins. Arch. Oral Biol. 48: 361– 368.
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It is important to remember that violent crime accusations in Phoenix will not necessarily result in a conviction. The prosecutor is required to prove you committed every element to the offense beyond a reasonable doubt. This can be a very difficult burden to meet, especially when proving mental states to commit the crime. If the judge or jury has any doubt as to whether an element of the crime was proven, the charges against you can be reduced or even dismissed.
However, a conviction for violent crime offenses in Phoenix can result in serious penalties, including lengthy mandatory prison or jail terms, a criminal record and/or steep fines. These types of offenses can also render an individual ineligible for probation, for other types of deferred sentencing, or to own or possess a firearm. Therefore, it is essential to hire a knowledgeable Phoenix criminal defense lawyer to create your best legal strategy in order to possibly help you avoid a conviction to your alleged offense.
If you have been charged with a violent crime in Mesa, or any of the surrounding areas in Arizona, including Gilbert, Tempe, Chandler, Scottsdale, Phoenix or East Valley, contact the Law Office of James E. Novak. James Novak is an experienced violent crimes attorney and will make every effort to help you avoid the most serious penalties and consequences to your alleged offense. Call the Law Office of James E. Novak for a free consultation at (480) 413-1499 about your violent crime allegations.
To cause physical injury to that person or damage their property in order to promote, or induce or solicit another person to participate in a criminal street gang, criminal syndicate or racketeering enterprise.
This offense can result in a class 1 misdemeanor, class 6 felony or class 3 felony conviction.
Knowingly touch another person with the intent to injure, insult or provoke that person.
This offense can result in a class 1, 2 or 3 misdemeanor conviction.
They violate the terms of a protective order.
This offense can result in a class 2, 3, 4, 5 or 6 felony conviction.
Assault with a Weapon – ARS § 13-1204 – An individual can be charged with this offense if they commit an assault offense and use a deadly weapon. This offense can result in a class 2 or 3 felony conviction.
Seize or exercise control over any plane, train, bus or other vehicle.
This offense can result in a class 2, 3 or 4 felony conviction.
Endangerment – ARS § 13-1201 – An individual can be charged with this offense if they recklessly cause another person to be endangered by a substantial risk of immediate death or physical injury. This offense can result in a class 1 misdemeanor or class 6 felony conviction.
Alleged violent crime offenders in Phoenix are often required to have a certain mental state, or act in an intentional, reckless or knowing manner. Mental states are generally unique to each person, so it can be difficult for the prosecution to prove the alleged offender had the required mental state to commit the offense. The most common violent mental states, according to the Arizona Revised Statutes § 13-105(10), are listed below.
Intentionally – An alleged offender acts intentionally if they have the objective to cause the result of the offense, or the objective to engage in the criminal conduct.
Knowingly – An alleged offender acts knowingly if they are aware or believe that their conduct was criminal or assaultive in nature. They are not required to know the act was unlawful.
Recklessly – An alleged offender acts recklessly if they are aware of and consciously disregard a substantial and unjustifiable risk that their conduct will cause the result of the offense.
A class 3 misdemeanor violent crime conviction can result in up to 30 days in jail and/or a fine up to $500.
A class 2 misdemeanor violent crime conviction can result in up to four months in jail and/or a fine up to $750.
A class 1 misdemeanor violent crime conviction can result in up to six months in jail and/or a fine up to $2,500.
A class 6 felony violent crime conviction can result in prison term ranging from 18 months to three years, but the presumptive term of imprisonment is for 27 months.
A class 5 felony violent crime conviction can result in a prison term ranging from two years to four years, but the presumptive term of imprisonment is for three years.
A class 4 felony violent crime conviction can result in a prison term ranging from four years to eight years, but the presumptive term of imprisonment is for six years.
A class 3 felony violent crime conviction can result in five years to 15 years in prison, but the presumptive term of imprisonment is for 7.5 years.
A class 2 felony violent crime conviction can result in a prison term from seven years to 21 years, but the presumptive term of imprisonment is for 10.5 years.
Whether the victim was pregnant at the time of the offense.
Felony violent crime offenders may also be required to pay a fine up to $150,000.
Self Defense – ARS § 13-404 – An individual may be entitled to use self defense if he believed physical force was necessary to protect himself against another person’s use or attempt to use physical force.
Defense of Property or Premises – ARS § 13-407 – 13-408 – An individual may be permitted to use defense of property or premises if he reasonably believed physical force was necessary to prevent an attempt or commission of theft or criminal damage of his tangible property or criminal trespass on his premises by another person.
Defense of a Third Person – ARS § 13-406 – An individual may be able to use defense of a third person if he believed physical force was necessary to protect a third party against another person’s threat of physical force or deadly physical force.
Duress – ARS § 13-412 – An individual may be able to use this defense if they committed some type of conduct that would normally be a criminal offense, but was forced to engage in the conduct by the threat or immediate use of physical force that could result in serious physical injury.
Necessity – ARS § 13-417 – An individual may be able to use this defense if they engaged in conduct that would normally be considered a criminal offense, but was forced to engage in the conduct because they had no alternative to avoid greater public or private injury.
Lack of Mental State – An individual may be able to avoid criminal prosecution for an alleged violent crime if they did not have had the required mental state, or did not act knowingly, recklessly or intentionally when they allegedly committed the offense.
Arizona Revised Statutes – Chapter 12 of Title 13 of the Arizona Revised Statutes defines many violent crimes and assaultive offenses, including endangerment, assault, and aggravated assault. This link is to assault and the potential penalties for assault under ARS § 13-1203.
National Crime Information Center (NCIC) – This link is to a computerized index of criminal justice information, which contains miscellaneous information on crimes and criminals throughout the nations, including Arizona.
Contact the Law Office of James E. Novak today for a consultation about your alleged crimes of violence or assault charges throughout Maricopa County in Arizona. James Novak is an experienced criminal defense lawyer in Mesa who will make every effort to fight the allegations against you and help you achieve the most desirable outcome for your alleged situation. Contact the Law Office of James E. Novak at (480) 413-1499 for a consultation about your alleged violent offense throughout Maricopa County in Arizona.


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Bernard Freamon chronicles the legal history behind the recent case regarding religious accommodation of prisoners, Conway v. Purves.
Four Muslim prisoners incarcerated in four prisons in the Michigan prison system just settled a federal lawsuit against prison officials. The lawsuit, Conway v. Purves, No. 13-cv-10271 (E.D. Michigan, 2017) alleged that the prisoners were denied sufficient nutrition when they fasted during Ramadan in 2011 and 2012. Although the Michigan prison system employs dietary policies allowing prisoners to fast during Ramadan, the prisoners claimed that the caloric intake provided to them fell far below national standards, resulting in the deprivation of a healthy diet resulting from their choice to follow Islamic ritual laws mandating a fast during daylight hours during the month of Ramadan. The prisoners alleged that this set of circumstances violated their constitutional right to the free exercise of religion, to be free from cruel and unusual punishment while incarcerated, and to equal protection of the laws, and that the prison officials also violated various federal statutory provisions.
The Conway settlement followed rapidly after the judge denied the defendants’ motion for a summary judgment on the basis of a claim of qualified immunity. The qualified immunity defense is frequently raised by defendants who are government officials in civil rights cases. The defense requires an official to show that the right asserted by the plaintiff was not “clearly established” by federal statutory or constitutional law at the time of the event and that the defendant acted in good faith. It is most often raised by police officers seeking to avoid liability for the alleged use of excessive force.
The judge in the Conway case rejected the prison officials’ claim that they were not liable. He refused to allow the defendants to assert the qualified immunity defense, holding that a reasonable official in the position of the prison administrators at the time would have known that the diet offered was insufficient to sustain plaintiffs in good health during Ramadan, thus violating their First and Eighth Amendment rights. The judge also cited an earlier decision from the Sixth Circuit Court of Appeals, Welch v. Spaulding, 627 Fed. App’x 479, 484 (6th Cir. 2015) (denying grant of qualified immunity to prison officials where plaintiffs were provided 1300 calories per day in meals served during a 30 day Ramadan fasting period). After the judge denied the claim, the defendants were faced with the Hobson’s choice of settling the case or going to trial and risking a large jury verdict against them. They chose to settle.
This settlement should not surprise anyone familiar with federal law or with the legal history of claims by incarcerated Muslims seeking recognition of their right to appropriately fast during Ramadan, in accordance with the dictates of Islamic law. In point of fact, there is an important history of claims by Muslim prisoners seeking the right to pray, fast, provide and receive charity, name themselves, marry, dress, employ hygienic practices, and engage in other behaviors mandated by Islamic ritual law.
Courts have responded differently over time. Initially courts followed the so-called “hands-off doctrine,” meaning they were loathe to interfere with the actions of prison administrators in dealing with the religious claims of prisoners, especially non-mainstream claims. In that era, prison administrators treated the Nation of Islam as nothing more than a “cult” or radical fringe group.
But as incarceration rates of African American men began to explode, the Nation of Islam’s program became increasingly attractive to prisoners, and more mainstream. After the death of Elijah Muhammad, many members of his organization enthusiastically embraced the tenets of more mainstream Islam. This mainstreaming of Islam in prisons had the surprising effect of illustrating the benefits of sharīʿa-centered norms in coping with prison life.
In the meantime, federal courts began to acknowledge that claims by prisoners seeking to enforce their right to practice non-Christian religions were deserving of protection, even over the objection of prison administrators. In a series of decisions beginning with Cruz v. Beto, 406 U.S. 319 (1972) (recognizing the right of a Buddhist prisoner to worship and to be free from religious discrimination by administrators), courts interpreted the Constitution to require vigorous enforcement of rights to religious free exercise, so long as the religious practice could be accommodated without interfering with “legitimate penological interests” and so long as the government’s restrictions were the “least restrictive means” of furthering the government’s compelling interests in safety and security.
Accommodating a prisoner’s diet during Ramadan to permit compliance with the dictates of Islamic law, which are quite clear and well-known, easily satisfies this test. Federal and state courts around the country rapidly recognized a prisoner’s right to this accommodation. Therefore, any current prison administrator who acts in contravention of this right acts at his or her peril.
While the settlement of the Conway case is a positive development in light of existing, well-established law, there are some aspects of that Conway case that are quite disturbing. Even though the Sixth Circuit law was “clearly established” and even though the prison officials were personally made aware of the prisoners’ claims, they nevertheless took the position that they did not have to provide the prisoners with a healthy diet, meaning 2400 to 2600 calories per day, as prescribed by the United States Departments of Health and Human Services and Agriculture. Furthermore, documents in the case show that there were at least four prior lawsuits brought by Michigan prisoners making similar claims pending in the courts when the Conway case was filed. Several of those cases also resulted in court decisions against the prison administrators or settlements favorable to prisoners. In fact, in response to one of the lawsuits, the Michigan Department of Corrections amended its policy on caloric intake for prisoners fasting during Ramadan to make sure it did not run afoul of the federal law. Yet, one prisoner testified that he lost 11 pounds during the Ramadan fast. Another testified that he lost 12 pounds. And a third testified that he lost 15-20 pounds. There were also consistent complaints that Muslim prisoners often received less food during Ramadan or breakfast after sunrise or both. The prisoners alleged that they suffered from hunger pains, headaches, dizziness, fatigue and/or shakiness as well from the extreme weight loss.
The actions of the Michigan officials, in the face of clearly established federal law and Department of Corrections policy, as well as strong evidence of deleterious effects on the prisoners’ health, suggests a kind of intentionality and lack of respect for the prisoners’ claims today that is reminiscent of the way prison officials treated the Nation of Islam in the 1940s and 1950s. Muslims and civil rights lawyers, both inside and outside the prison system, should vigilantly guard against such blatant disrespect. Perhaps the next case in Michigan, alleging such behavior, should not be settled.
Bernard Freamon is a Professor of Law at Seton Hall University specializing in evidence and legal philosophy, with emphasis on Islamic Jurisprudence and Islamic Legal History.
 Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Cambridge, MA.: Harvard University Press, 2010) 97.
 See, e.g., Tabor v. Hardwick, 224 F. 2d 526, 529, (5th Cir. 1955) (control of federal prisons is entrusted to Attorney General and Bureau of Prisons and courts should not interfere with their decisions except in extreme cases).
 Heard v. Finco, 2014 WL 1347432, at *1 (W.D. Mich., March 31, 2014).
Posted in Civil rights, Civil rights sharīʿa, human rights, Islamic Law and Policy, prisoners' rights, Ramadan, religious accommodation, Religious rights, U.S.

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Article 1 - Notary Public Act.
§ 10B-4: Reserved for future codification purposes.
§ 10B-6. Application for commission.
§ 10B-7. Statement of personal qualification.
§ 10B-8. Course of study and examination.
§ 10B-9. Length of term and jurisdiction.
§ 10B-10. Commission; oath of office.
§ 10B-15: Reserved for future codification purposes.
§ 10B-16: Reserved for future codification purposes.
§ 10B-17: Reserved for future codification purposes.
§ 10B-18: Reserved for future codification purposes.
§ 10B-19: Reserved for future codification purposes.
§ 10B-20. Powers and limitations.
§ 10B-21. Notaries ex officio.
§ 10B-22. False certificate; foreign language certificates.
§ 10B-25: Reserved for future codification purposes.
§ 10B-26: Reserved for future codification purposes.
§ 10B-27: Reserved for future codification purposes.
§ 10B-28: Reserved for future codification purposes.
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§ 10B-30. Imposition and waiver of fees.
§ 10B-31. Fees for notarial acts.
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§ 10B-34: Reserved for future codification purposes.
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§ 10B-40. Notarial certificates in general.
§ 10B-41. Notarial certificate for an acknowledgment.
§ 10B-42. Notarial certificate for a verification or of subscribing witness.
§ 10B-42.1. Notarial certificate for a verification of nonsubscribing witness.
§ 10B-43. Notarial certificate for an oath or affirmation.
§ 10B-44: Reserved for future codification purposes.
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§ 10B-50. Change of address.
§ 10B-51. Change of name.
§ 10B-52. Change of county.
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§ 10B-65. Acts of notaries public in certain instances validated.
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§ 10B-69. Official forms cured.
§ 10B-70. Certain notarial acts for local government agencies validated.
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Article 2 - Electronic Notary Act.
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§ 10B-104. Reserved for future codification purposes.
§ 10B-106. Registration with the Secretary of State.
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§ 10B-112: Reserved for future codification purposes.
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§ 10B-115. Types of electronic notarial acts.
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