§ 58.1-3503. General classification of tangible personal property.
1. Farm animals, except as exempted under § 58.1-3505.
2. Farm machinery, except as exempted under § 58.1-3505.
3. Automobiles, except those described in subdivisions 7, 8, and 9 of this subsection and in subdivision A 8 of § 58.1-3504, which shall be valued by means of a recognized pricing guide or if the model and year of the individual automobile are not listed in the recognized pricing guide, the individual vehicle may be valued on the basis of percentage or percentages of original cost. In using a recognized pricing guide, the commissioner shall use either of the following two methods. The commissioner may use all applicable adjustments in such guide to determine the value of each individual automobile, or alternatively, if the commissioner does not utilize all applicable adjustments in valuing each automobile, he shall use the base value specified in such guide which may be either average retail, wholesale, or loan value, so long as uniformly applied within classifications of property. If the model and year of the individual automobile are not listed in the recognized pricing guide, the taxpayer may present to the commissioner proof of the original cost, and the basis of the tax for purposes of the motor vehicle sales and use tax as described in § 58.1-2405 shall constitute proof of original cost. If such percentage or percentages of original cost do not accurately reflect fair market value, or if the taxpayer does not supply proof of original cost, then the commissioner may select another method which establishes fair market value.
4. Trucks of less than two tons, which may be valued by means of a recognized pricing guide or, if the model and year of the individual truck are not listed in the recognized pricing guide, on the basis of a percentage or percentages of original cost.
5. Trucks and other vehicles, as defined in § 46.2-100, except those described in subdivisions 4, and 6 through 10 of this subsection, which shall be valued by means of either a recognized pricing guide using the lowest value specified in such guide or a percentage or percentages of original cost.
6. Manufactured homes, as defined in § 36-85.3, which may be valued on the basis of square footage of living space.
7. Antique motor vehicles, as defined in § 46.2-100, which may be used for general transportation purposes as provided in subsection C of § 46.2-730.
9. Motor vehicles with specially designed equipment for use by the handicapped, which shall not be valued in relation to their initial cost, but by determining their actual market value if offered for sale on the open market.
10. Motorcycles, mopeds, all-terrain vehicles, and off-road motorcycles as defined in § 46.2-100, campers and other recreational vehicles, which shall be valued by means of a recognized pricing guide or a percentage or percentages of original cost.
11. Boats weighing under five tons and boat trailers, which shall be valued by means of a recognized pricing guide or a percentage or percentages of original cost.
12. Boats or watercraft weighing five tons or more, which shall be valued by means of a percentage or percentages of original cost.
13. Aircraft, which shall be valued by means of a recognized pricing guide or a percentage or percentages of original cost.
14. Household goods and personal effects, except as exempted under § 58.1-3504.
15. Tangible personal property used in a research and development business, which shall be valued by means of a percentage or percentages of original cost.
16. Programmable computer equipment and peripherals used in business which shall be valued by means of a percentage or percentages of original cost to the taxpayer, or by such other method as may reasonably be expected to determine the actual fair market value.
17. Computer equipment and peripherals used in a data center, as defined in subdivision A 43 of § 58.1-3506, which shall be valued by means of a percentage or percentages of original cost, or by such other method as may reasonably be expected to determine the actual fair market value.
18. All tangible personal property employed in a trade or business other than that described in subdivisions 1 through 17, which shall be valued by means of a percentage or percentages of original cost.
19. Outdoor advertising signs regulated under Article 1 (§ 33.2-1200 et seq.) of Chapter 12 of Title 33.2.
20. All other tangible personal property.
B. Methods of valuing property may differ among the separate categories, so long as each method used is uniform within each category, is consistent with requirements of this section and may reasonably be expected to determine actual fair market value as determined by the commissioner of revenue or other assessing official; however, assessment ratios shall only be used with the concurrence of the local governing body. A commissioner of revenue shall upon request take into account the condition of the property. The term "condition of the property" includes, but is not limited to, technological obsolescence of property where technological obsolescence is an appropriate factor for valuing such property. The commissioner of revenue shall make available to taxpayers on request a reasonable description of his valuation methods. Such commissioner, or other assessing officer, or his authorized agent, when using a recognized pricing guide as provided for in this section, may automatically extend the assessment if the pricing information is stored in a computer.
Code 1950, §§ 58-829, 58-829.3, 58-829.5; 1960, c. 418; 1970, cc. 325, 655; 1974, c. 445; 1975, cc. 47, 541; 1976, c. 567; 1978, cc. 155, 178, 656, 843; 1979, c. 576; 1980, c. 412; 1981, c. 236; 1982, c. 633; 1984, cc. 675, 689; 1985, c. 105; 1987, c. 568; 1991, cc. 253, 255; 1994, c. 827; 1996, c. 529; 1997, cc. 192, 250, 433, 457; 2006, c. 896; 2013, cc. 287, 652, 783; 2018, cc. 28, 292.


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As part of its Advisory Committee Meeting, the CCHR will present a panel discussion entitled “The Obama Administration’s Record on Human Rights and Terrorism: The First Sixty Days”. Panelists include Steven M. Watt, senior staff attorney with the ACLU Human Rights Program and graduate of the Center for Civil and Human Rights LL.M. program and Doug Cassel, Director of the Center for Civil and Human Rights. The presentation will begin at 3:00 p.m. and will be held in the Faculty Meeting Room (Room 2130) in the Eck Hall of Law.
Later in the day, at 5:45 p.m., the Center for Civil and Human Rights will host an open house for all to visit the Center’s new space in the new Eck Hall of Law.
Steven M. Watt is a senior staff attorney with the Human Rights Program, specializing in litigation before federal courts and international tribunals. Watt is counsel in El Masri v. Tenet, and Mohamed v. Jeppesen, challenges to the CIA’s extraordinary rendition program; Ali v. Rumsfeld, a suit challenging U.S. interrogation and detention practices in Afghanistan and Iraq; Sabbithi v. Kuwait, a case on behalf of three Indian women trafficked into the U.S. and enslaved by their diplomat employers; and Gonzales v. United States, a case before the Inter-American Commission of Human Rights on behalf of a victim of domestic violence.
Prior to joining the ACLU, Watt was a Human Rights Fellow at the Center for Constitutional Rights, where he focused on post-9/11 litigation, including Rasul v. Bush, a case involving the detention of Guantánamo Bay detainees; Arar v. Ashcroft, the first legal challenge to extraordinary rendition; and Turkmen v. Ashcroft, a case involving the detention of Arab, South Asian and Muslim men rounded up after the September 11, 2001, attacks.
Before coming to the United States, Watt worked for three years as a public defender and legal policy consultant for the Solomon Islands government, managed refugee camps in Tanzania, worked for a community-based development HIV/AIDS program in Uganda and assisted emergency programs for the internally displaced in Liberia.
Originally from Scotland, Watt holds a law degree from the University of Aberdeen, a Diploma in Legal Practice from the University of Edinburgh, and an LL.M. in International Human Rights from Notre Dame Law School.

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Per Art. 4 No. 1 of GDPR any operation, whether automated or not, means processing data. Examples are collection, recording, organization and structuring, storage, updating or deletion.
The provisions below serve to provide information as to the manner, extent and purpose for collecting, using and processing personal information by the provider.
Which Data will be processed by visiting our website www.optical-data-systems.com and for which purpose?
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With every visit of our website the system will automatically collect data and informations from the requesting computer system.
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Your data processed when using our website will be deleted or blocked as soon as the purpose for its storage ceases to apply. In the case of visiting our website this is after the session ended.
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We provide links to other websites. After leaving our website the data privacy policies of the related third-party will automatically applied.
By using the contact form and E-Mail contact, you automatically accept the processing of the corresponding personal data.
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Judicial Service – Judge James Dickson Phillips, Jr.
Judge James Dickson Phillips, Jr.
Judge Phillips was nominated to a seat on the Fourth Circuit formerly held by J. Braxton Craven, Jr. by President Carter on July 20, 1978 and was confirmed by the Senate on August 11, 1978. Former colleague Judge J. Harvie Wilkinson III wrote that Phillips was “imbued with knowledge and wisdom, devoted to law and respectful of litigants.” More reflections on Judge Phillips’s judicial career appear in A Tribute: Judge James Dickson Phillips, Jr.
Judge Phillips assumed senior status in 1994 and continued to sit with the court through 1999. From his chambers in Durham above the Old Post Office, and later, from his chambers in Chapel Hill, he crafted opinions and dissents that had an impact on constitutional rights not only within the Fourth Circuit but across the nation.
In Gingles, black voters in North Carolina challenged a redistricting plan that the General Assembly enacted in 1982. Judge Phillips, sitting on a three-judge district court panel, wrote the opinion in the case, holding that the redistricting plan violated Section 2 of the Voting Rights Act. Phillips found that the plan would result in the dilution of the electoral rights of black voters. The court later approved a revised redistricting plan, which it found remedied the earlier violations. This decision was appealed directly to the U.S. Supreme Court, which largely affirmed the judgment. See Thornburg v. Gingles, 478 U.S. 30 (1986) (affirming the decision with regard to all of the districts except for House District 23, which was reversed).
New faculty at the UNC School of Law, late 1950s. Many years later, Robinson O. Everett, far left, was lead counsel for plaintiffs in Shaw I, which was heard by J. Dickson Phillips, second from right.
Based on the 1990 decennial census, North Carolina was granted a twelfth seat in the U.S. House of Representatives, leading the General Assembly to create a redistricting plan. In Shaw I, the plaintiffs, white citizens of North Carolina and voters in Durham County, N.C., challenged the implementation of the redistricting plan, which created a new majority-minority district in the state.
With Judge Phillips sitting as a circuit judge, the three-judge panel district court dismissed the case for lack of jurisdiction and failure to state a claim. The U.S. Supreme Court reversed and remanded the case to the district court. See Shaw v. Reno, 509 U.S. 630 (1993). On remand, the three-judge panel held in favor of the defendants, finding that the redistricting plan was narrowly tailored to further the state’s compelling interest and that the redistricting plan did not violate the plaintiffs’ equal protection rights.
The U.S. Supreme Court reversed this decision, finding that the new majority-minority district was not narrowly tailored to the state’s interest. See Shaw v. Hunt, 517 U.S. 899, 918 (1996).
In United States v. Virginia (VMI I), 976 F.2d 890 (4th Cir. 1992), the federal government sued the Commonwealth of Virginia, alleging that the male-only Virginia Military Institute (a state school) improperly discriminated against women by excluding them from the institution. The trial court found in favor of Virginia, and the U.S. appealed. The Fourth Circuit vacated the lower court’s decision, finding that while there was a legitimate reason for single-gender education, Virginia did not justify its policy of only offering the type of training and education to men and not to women. On remand, the trial court judge allowed Virginia to create a similar state-supported all-female program, VWIL, that would be comparable to VMI.
On appeal to the Fourth Circuit in United States v. Virginia (VMI II), 44 F.3d 1229 (4th Cir. 1995), the court noted that the all-female VWIL program would be sufficient to meet the requirements of the Fourteenth Amendment’s Equal Protection Clause, even though it was a leadership program, and not military training like that offered by VMI.
The U.S. Supreme Court later overturned the Fourth Circuit’s VMI II holding, finding that the VWIL plan did not meet the requirements of the Equal Protection Clause, agreeing with many points in Judge Phillips’ dissent. See United States v. Virginia, 518 U.S. 515, at 529-30, 553 (1996).
On the Shaw and VMI cases, see Hampton Dellinger, Modernizing the ‘New South’: The Legacy of Judge Phillips’s Late-Career, Late-Century Rulings in Shaw and VMI, 92 N.C. L. REV. 1795 (2014).

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Real Property, Registered land. Land Court, Registration proceedings. Treasurer and Receiver General. Judgment, Preclusive effect.
CIVIL ACTION commenced in the Superior Court Department on January 19, 1994.
A motion to dismiss was heard by Mitchell J. Sikora, J.
David A. Kiernan for the plaintiff.
Daniel J. Hammond, Assistant Attorney General, for Treasurer and Receiver General.
KASS, J. In her complaint, Josephine Putignano alleges that, without negligence on her part, she was wrongly deprived of land by the registration of the town of Yarmouth as the owner of that land ("locus"). She claims compensation under G. L.
c. 185, § 101, against the land registration assurance fund established under G. L. c. 185, § 99. We decide that prior proceedings have established preclusively against Putignano that she was negligent in the maintenance of her land claim and affirm the judgment in favor of the Treasurer and Receiver General ("Treasurer").
To illuminate the basis for our decision, it is necessary to describe the errant and protracted course (not due to any apparent fault of the Land Court or the Superior Court) of prior proceedings in regrettably tedious detail. The antecedents of the controversy lie in a petition that Yarmouth filed with the Land Court in April, 1973, to confirm and register title to the locus, which the town had acquired through tax title proceedings. Yarmouth's registration petition was docketed as No. 37845. Dominic John Putignano, as trustee of the Dominic John Putignano Trust, filed an objection to the registration petition, claiming an interest in the locus.
Ten years later, on July 19, 1983, the trust's lawyer filed with the Land Court a withdrawal of his appearance and a withdrawal of his client's objections. [Note 2] The occasion of those withdrawals, as Josephine Putignano conceded in a brief in an earlier proceeding before the Appeals Court, was to facilitate conveyance of the locus by Yarmouth to the New Testament Baptist Church of Yarmouth. Josephine Putignano became a successor in interest, in her own right and as executrix of her husband's estate, to the Putignano trust.
rule 1:28 of the Appeals Court, as amended, 46 Mass. App. Ct. 1001 (1998), may not be cited as authority in unrelated cases, we take note of a decision related factually and legally to a subsequent stage of the same controversy. See Lyons v. Labor Relations Commn., 19 Mass. App. Ct. 562 , 566 (1985). Courts take note of their own dockets. Miller v. Norton, 353 Mass. 395 , 399 (1967). Contrast Horner v. Boston Edison Co., 45 Mass. App. Ct. 139 , 141 (1998).
There is an undated document in the record appendix by which Mr. Victor G. Fields, who throughout had acted as counsel for the Putignano interests, moves to "confirm the appearance of Josephine Putignano" in case No. 37845 on the ground that the Putignano trust had dissolved by its terms on June 18, 1982, rendering Mr. Field's withdrawal of the trust's objection a nullity. Also included in the record appendix, again undated, is a document that purports to move to file late objections to the registration petition in case No. 37845. [Note 3] In the meantime, registration case No. 41416, in which the dispute over the locus had lodged, proceeded at measured pace to a decree in favor of Yarmouth that was entered on May 6, 1988. On July 26, 1988, Putignano filed a petition to vacate the registration decree (see note 3, supra), in which she (through counsel) makes the remarkable statement: "It was intended and expected that the [late-filed] objections would be noted on the severed case aforementioned." In addition to this suggestion that it was the business of the Land Court clerk to cross-file to case No. 41416 motions on which Putignano's counsel had placed the docket number, 37845, of the off-locus registration case, the petition to vacate the registration decree asserts that Yarmouth, through its counsel, and the New Testament Baptist Church (which received a deed from the town after the registration decree was issued) were aware of the Putignano claim to the locus and had euchred Putignano out of her land through docket number sleight of hand.
grounds met with no success in the Land Court nor in a subsequent appeal to this court. In the unpublished decision in that appeal, entered on February 1, 1990, [Note 4] we stated that the Putignano interests "do not currently assert, nor did they do so below, that they did not have actual notice of the motion [to sever] or the severance. . . . The result in this case, therefore, can be traced directly to the [Putignanos'] own omissions and their failure to meet their obligation to assert their claim. See Tetrault v. Bruscoe, 398 Mass. 454 , 462-463 (1986). . . . Neither the town nor the Church intentionally or recklessly concealed the [Putignanos'] interest, if any, from the Land Court. Compare State St. Bank & Trust Co. v. Beale, 353 Mass. 103 , 103-104 (1967); Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34 , 40-43 (1980). Contrast Christian v. Mooney, 400 Mass. 753 , 763 (1987), appeal dismissed and cert. denied [sub nom. Christian v. Bewkes, 484 U.S. 1053] (1988); Snow v. E. L. Dauphinais, Inc., 13 Mass. App. Ct. 330 , 333 (1982)." As to the town and its counsel, Mr. John C. Creney, the claims of fraud through intentional concealment (of the severed registration case from Putignano) in the action from which this appeal comes were foreclosed by familiar principles of issue preclusion. See Fay v. Federal Natl. Mortgage Assn., 419 Mass. 782 , 789-791 (1995); Boyd v. Jamaica Plain Co-op. Bank, 7 Mass. App. Ct. 153 , 159-160 (1979). See also Restatement (Second) of Judgments § 27 (1982). [Note 5] The Superior Court judge so ruled.
deprived of land or of any estate or interest therein, by the registration of another person as owner of such land or of any estate or interest therein, through fraud or in consequence of any error, omission, mistake or misdescription in any certificate of title or in any entry or memorandum in a registration book may institute an action in contract in the superior court for compensation from the assurance fund for such loss, damage or deprivation; but a person so deprived of land or of any estate or interest therein, having a right of action or other remedy for the recovery of such land, estate or interest, shall exhaust such remedy before resorting to the action of contract herein provided" (emphasis supplied).
defendants other than the Treasurer. Although in her brief on appeal, Putignano purports to proceed under the first sentence of § 102, i.e., an act or omission of Land Court personnel, her underlying complaint alleges no mistake or other faults by Land Court personnel.
When a prior case has concluded with a final judgment that a primary liability does not exist, we are of opinion that a party such as the Treasurer, who has only secondary liability, may have the benefit of the judgment. See Restatement (Second) of Judgments § 51 (1982). Cf. Restatement (Third) Suretyship & Guaranty § 67(1) (1996). The Treasurer, in every real sense, does become a privy of the party against whom primary liability was asserted.
Judgment in this case was allowed on the basis of a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Consideration of such a motion takes all averments in the complaint as true. We have decided that the averment in the complaint that the plaintiff was without negligence had been barred on grounds of issue preclusion. In such circumstances, when matter outside the pleadings is considered, we treat the motion as one for summary judgment. See Mass.R.Civ.P. 12(b); Watros v. Greater Lynn Mental Health & Retardation Assn., Inc., 421 Mass. 106 , 108-109 (1995). So treated, the motion was properly granted.
[Note 1] Putignano's initial complaint in this action, filed January 19, 1994, named only the Treasurer and Receiver General ("Treasurer") as a defendant. A judge of the Superior Court, who heard all the proceedings in the case, ordered Putignano to file an amended complaint that included as defendants all persons against whom the Treasurer might have rights of subrogation. See G. L. c. 185, § 102 (2d sentence). Judgment was entered in favor of the town and its counsel, the additional defendants named in the amended complaint. Putignano has confined her appeal to the judgment in favor of the Treasurer.
[Note 2] The withdrawal card, as reproduced in the record appendix, has written on it the words, "reserving right to see decree."
[Note 3] From a "Petition to Vacate Decree of Registration" that appears in the record appendix, filed with the Land Court (in case No. 41416) on July 26, 1988, it appears that the motion to file late objections was filed on November 17, 1987.
[Note 4] The rescript is reported at 28 Mass. App. Ct. 1110 (1990).
[Note 5] The plaintiff had not named Mr. Creney a defendant in the earlier case, but as he acted in a representative capacity for the town at all times, adding him in the current case does not destroy the parallelism of parties and the consequent preclusive effect of the earlier judgment.


In the United States Court of Appeals For the Seventh Circuit Nos. 15-2933, 16-1496 & 16-3149 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DESHAUN BROWN, also known as SQUEAK, KYLE PAGAN and GREGORY HAWTHORNE, Defendants-Appellants. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 772 — Elaine E. Bucklo, Judge. ARGUED MAY 18, 2017 — DECIDED JULY 28, 2017 Before BAUER, EASTERBROOK, and SYKES, Circuit Judges. BAUER, Circuit Judge. On September 26, 2013, Deshaun Brown, Gregory Hawthorne, and Kyle Pagan, along with 21 other defendants, were indicted on federal charges of racketeering conspiracy, narcotics offenses, and firearms offenses. 2 Nos. 15-2933, 16-1496 & 16-3149 These charges stemmed from the defendants’ involvement in an open-air drug market, known as the Keystone Drug Market, located on Keystone Avenue near the intersection of Thomas Street, in Chicago, Illinois. On November 13, 2014, after a seven-day trial, a jury convicted Brown, Hawthorne, and Pagan on conspiracy and narcotics-trafficking charges. All three appealed, each raising different challenges. I. BACKGROUND The street gang known as the Imperial Insane Vice Lords, or the “Double-Is,” controlled the Keystone Drug Market. Beginning around 1996, Joseph Faulkner, a high-ranking member of the Double-Is, ran the Keystone Drug Market’s operations. Pagan and Hawthorne were also members of the Double-Is, and began selling narcotics for Faulkner in 2000 and 2005, respectively. Brown was a member of a different street gang, known as the Mafia Insane Vice Lords. Despite his different affiliation, Brown purchased narcotics from Faulkner and other members of the Double-Is and sold them on Keystone Avenue beginning in 2007. In 2011, after Faulkner was arrested, Nathaniel Hoskins, another member of the Double-Is, took over control of the Keystone Drug Market, which he continued to manage until his arrest in 2013. Hawthorne and Pagan continued to sell narcotics on Keystone Avenue under Hoskins. When Hoskins took over, Brown was selling crack cocaine on Keystone Avenue, but was not directly affiliated with the Double-Is’ drug trade. Once he took control, however, Hoskins began requiring Brown to pay a tax, either in money or drugs, in Nos. 15-2933, 16-1496 & 16-3149 3 exchange for allowing Brown to sell drugs on Keystone Avenue. Sometime in late 2010, the Chicago Police Department and the Drug Enforcement Agency began investigating the Double-Is and the Keystone Drug Market. That investigation included various wiretaps and controlled purchases of narcotics, and led to the indictment of 24 individuals on September 26, 2013. The indictment charged Brown with one count of conspiracy to possess with intent to distribute, and to distribute, heroin, cocaine base, and marijuana, in violation of 21 U.S.C. § 846; and two counts of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). The indictment charged Hawthorne with the same count of conspiracy; one count of possessing with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). It charged Pagan with the same conspiracy count and four counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1). Brown pleaded guilty to the distribution charges. Brown, Hawthorne, and Pagan proceeded to trial on the remaining charges. On November 13, 2014, after a seven-day trial, the jury convicted Hawthorne and Pagan of their possession and distribution charges, and convicted all three of the conspiracy charge. The jury did not reach a verdict on Hawthorne’s firearm charge. All three filed timely notices of appeal. 4 Nos. 15-2933, 16-1496 & 16-3149 II. DISCUSSION Brown appeals his conviction, arguing that there was insufficient evidence to sustain the verdict on the conspiracy charge. He also argues that the district court erred in denying two of his requested jury instructions. Hawthorne appeals the district court’s denial of his motion for a new trial based on the government’s failure to timely disclose information regarding its witness, Charles Vaughn. Pagan appeals his sentence, arguing that the court miscalculated his criminal history level. We address each argument in turn. A. Sufficiency of the Evidence as to Brown’s Conspiracy Conviction Brown contends that the government failed to produce sufficient evidence at trial to prove beyond a reasonable doubt that he intentionally joined the drug distribution conspiracy operating at the Keystone Drug Market between 1996 and 2013. “When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Moshiri, 858 F.3d 1077, 1081 (7th Cir. 2017) (citation and quotation marks omitted). We do not make credibility determinations or reweigh the evidence, and “[i]f there is a reasonable basis in the record for the verdict, it must stand.” Id. (citations omitted). The defendant’s burden on a sufficiency challenge is “nearly insurmountable.” United States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009) (citation omitted). Nos. 15-2933, 16-1496 & 16-3149 5 “A conspiracy exists when two or more people agree to commit an unlawful act, and the defendant knowingly and intentionally joins that agreement.” Id. There must be “substantial evidence that the defendant knew of the illegal objective of the conspiracy and agreed to participate.” Id. at 918–19 (citation and quotation marks omitted). We can quickly dispense with Brown’s initial and cursory argument that, because he was not a member of the Double-Is, he could not have joined in their narcotics distribution conspiracy. All that is required for a conspiracy conviction is proof that the defendant joined in an agreement to commit an unlawful act, not that he joined in a particular group. Id. at 919. Thus, Brown’s membership in a different street gang is of no consequence. Brown does not dispute that he sold drugs on Keystone Avenue, nor does he challenge the existence of the charged conspiracy. His main argument, however, is that the government’s evidence proved only that Hoskins forced him to pay a “street tax” in order to sell those drugs, which, he argues, is insufficient to prove his intentional participation in the conspiracy. He contends that his relationship with Hoskins was akin to the type of buyer-seller relationship that we have found insufficient to establish a conspiracy in other cases. See, e.g., United States v. Brown, 726 F.3d 993, 1001 (7th Cir. 2013) (“People in a buyer-seller relationship have not agreed to advance further distribution of drugs; people in conspiracies have.”). That argument is unavailing, however, because the government’s evidence demonstrated a relationship of mutual 6 Nos. 15-2933, 16-1496 & 16-3149 financial interest between Brown and Hoskins, unlike a simple buyer-seller relationship. See United States v. Contreras, 249 F.3d 595, 600 (7th Cir. 2001) (describing a buyer-seller relationship as one “between dealers who have no interest in the success of each other’s enterprise”). There was ample evidence from which the jury could have determined that Brown and Hoskins “agreed to advance further distribution of drugs,” and thus, joined in a conspiracy. Brown, 726 F.3d at 1001. Brown and Hoskins made an agreement whereby Hoskins would allow Brown to continue to sell crack cocaine on Keystone Avenue, and Brown would pay Hoskins with either drugs or cash. Brown does not dispute that he agreed to pay Hoskins, nor that he continued to sell narcotics after making the agreement. We have previously held that an agreement to pay rent for the right to sell drugs in a particular area is sufficient to establish a drug conspiracy. Longstreet, 567 F.3d at 919–20. This is true whether the participants in the agreement are competitors or acting in concert to sell the same drugs. Id. We see no distinction in the agreement here. Brown knowingly agreed to pay Hoskins for the ability to distribute drugs on Keystone Avenue. That agreement demonstrates something more than a simple buyer-seller relationship and, thus, provided a sufficient basis for the jury to convict Brown of conspiracy. In addition to that agreement, however, the government produced other evidence on which the jury could have relied to reach its verdict. Darrell Pitts, a member of the Double-Is and a cooperating witness, testified that Brown told him that he worked for Faulkner selling heroin at the Keystone Drug Market. Pitts also testified that Pagan told him that Brown and Nos. 15-2933, 16-1496 & 16-3149 7 others were “paid off every pack that gets sold” at the Keystone Drug Market. Pitts’ testimony was consistent with the statements Brown made to the officer who arrested him. That officer testified that Brown said that he sold heroin that he received from Faulkner for approximately six months in 2007. Brown also told the officer that, in 2009, he began selling crack cocaine that he received from Charles Vaughn, another member of the Double-Is and a cooperating witness. Brown stated that he always sold these drugs on Keystone Avenue. Finally, Chicago Police officers testified that they twice purchased crack cocaine from Brown while working undercover on Keystone Avenue in June 2011. On both occasions, Brown was working in tandem with one other person to make the exchanges with the officers. All of this evidence, taken together and viewed in the light most favorable to the government, provided a sufficient basis for the jury to conclude that Brown knowingly participated in the charged narcotics conspiracy. B. Brown’s Proposed Jury Instructions Brown also challenges the district court’s refusal to give two proposed jury instructions. The first related to the proof required for a conspiracy conviction. The second sought to define “street tax,” the term Brown used for his arrangement with Hoskins. A defendant is entitled to an instruction on his theory of defense if: (1) the instruction is a correct statement of the law; (2) the evidence supports the theory of defense; (3) the defense is not part of the government’s charge; and (4) the failure to give the instruction would deprive the defendant of a fair trial. 8 Nos. 15-2933, 16-1496 & 16-3149 United States v. Hall, 608 F.3d 340, 342 (7th Cir. 2010). “Similarly, a district court may refuse a proposed jury instruction if the other instructions convey the same message as the proposed instruction.” United States v. Sinclair, 74 F.3d 753, 761 (7th Cir. 1993). We review de novo the court’s refusal to give a proffered instruction. Hall, 608 F.3d at 343. At the close of evidence, the district court gave Seventh Circuit Pattern Jury Instruction 5.10 on membership in a conspiracy. Brown requested that the court give the following additional instruction: To prove that a defendant was a member of a conspiracy, the Government must demonstrate a participatory link between the conspiracy and the defendant. Proof of the participatory link requires substantial evidence that the defendant both knew of the conspiracy and that he intended to join and associate himself with the conspiracy’s criminal design and purpose. This requires proof the defendant did more than merely know the conspiracy existed, approved of the conspiracy, associated himself with the conspiracy or was present during some conspiratorial activities. In determining whether each defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant. The district court refused to give this instruction, finding that it was duplicative of the Pattern Instruction. We agree. The only material difference between Brown’s instruction and Nos. 15-2933, 16-1496 & 16-3149 9 the Pattern Instruction is the use of the phrase “participatory link.” The Pattern Instruction adequately conveys the same message, stating that the defendant must have “been aware of the illegal goal of the conspiracy and knowingly joined the conspiracy.” Pattern Criminal Jury Instructions of the Seventh Circuit (2012 ed.) § 5.10; see also United States v. Campbell, 985 F.2d 341, 344–45 (7th Cir. 1993) (explaining that a “participatory link” for purposes of a conspiracy conviction requires evidence that “the defendant knew of the conspiracy and that he intended to join and associate himself with its criminal design and purpose”). The Pattern Instruction accurately stated the government’s burden of proof on the conspiracy charge, and Brown’s instruction would have been at least repetitive, if not also confusing to the jury. Brown also requested that the court give the following instruction: A “street tax” is a slang phrase describing extortion payments made by victims. A victim of extortion is any person or business forced to make payments under the threat of physical injury, violence or other illegal conduct, to allow them to remain in business. It does not matter that the business the person is engaged in is considered a lawful or unlawful enterprise. Individuals involved in the unlawful business of prostitution, bookmaking, illegal gambling and/or auto theft, have been recognized victims of extortion from organized crime gangs. 10 Nos. 15-2933, 16-1496 & 16-3149 The court rejected this instruction, noting that Brown had not produced any evidence to support his reliance on a defense of duress or coercion. We agree. Brown did not argue, and there was no evidence to indicate, that he was forced to sell drugs for Hoskins under the threat of immediate violence. Moreover, his reliance on a defense of duress or coercion would have failed as a matter of law because he was free to reject Hoskins’ proposal and simply stop selling drugs on Keystone Avenue. See United States v. McGee, 408 F.3d 966, 983 (7th Cir. 2005) (citing United States v. Bailey, 444 U.S. 394, 410 (1980)). The instruction is also an incorrect statement of the law to the extent it suggests that the jury could not convict Brown of conspiracy if it found his payments to Hoskins met the definition of a “street tax.” As we demonstrated above, the jury was entitled to find that Brown’s agreement to pay Hoskins in exchange for the ability to sell drugs was evidence of his participation in the charged conspiracy. See Longstreet, 567 F.3d at 919–20. The proposed instruction is also problematic because it does not provide any guidance for the jury on the potential effect of finding that the arrangement between Hoskins and Brown met this particular definition of “street tax.” It simply provides a definition of the term in the context of extortion payments. Accordingly, the court did not err in rejecting Brown’s “street tax” instruction. C. Hawthorne’s Motion for a New Trial on Brady Grounds After the trial concluded, the government sent a letter to all defendants informing them that the prosecutors who tried the Nos. 15-2933, 16-1496 & 16-3149 11 case had just learned of an interview that a cooperating witness in a different case gave to an Assistant United States Attorney in 2009. In that interview, the witness said that he knew that Charles Vaughn had participated in a murder in 2005 and was involved in another gang-related shooting sometime after that. After learning this information, Hawthorne filed a motion for a new trial, arguing that the late disclosure entitled him to a new trial under Brady v. Maryland, 373 U.S. 83 (1963). The district court denied the motion, finding that the new information did not create a reasonable probability of a different result in Hawthorne’s trial. Hawthorne’s only argument on appeal is that the district court erred in denying his motion. A Brady violation exists if the defendant establishes that the government suppressed evidence, which was favorable to the defendant and material to an issue at trial. United States v. Stallworth, 656 F.3d 721, 731 (7th Cir. 2011). “Such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) (citation and quotation marks omitted). “We review the denial of a motion for a new trial based upon an alleged Brady violation for an abuse of discretion.” Stallworth, 656 F.3d at 731. Although the prosecutors assigned to this trial did not know of the interview before trial, the government concedes that the evidence was suppressed because it was in the government’s collective knowledge. The district court did not decide whether the evidence was favorable to Hawthorne and instead focused its analysis on materiality. Because we agree with the 12 Nos. 15-2933, 16-1496 & 16-3149 district court’s conclusion on that issue, we can assume, without deciding, that evidence of a government witness’s involvement in a prior murder would have been favorable to Hawthorne for impeachment purposes. As an initial matter, Hawthorne argues that the district court applied the wrong standard in its Brady analysis. He contends that the court incorrectly framed the inquiry by asking whether the undisclosed evidence would have changed the result of the trial, rather than whether there was a reasonable probability of a different result. A review of the record, however, defeats that contention. The court ruled orally on Hawthorne’s motion and before providing its analysis, stated the following: “The standard is, as you people noted, would it create a reasonable probability. It would have had to have created a reasonable probability that the result of the proceeding would have been different. … Another way of stating it, does it undermine confidence in the outcome of the trial?” That is an accurate statement of the relevant inquiry in this case. See Youngblood, 547 U.S. at 870. Hawthorne argues, as he did in the district court, that the new evidence was material because it would have caused the jury to question Vaughn’s credibility and motives. It is true that Brady requires the government to disclose impeachment evidence, Youngblood, 547 U.S. at 869, but, we have also recognized that, “ordinarily, newly discovered impeachment evidence will not warrant a new trial under Brady” because it will not be considered material, United States v. Salem, 578 F.3d 682, 688 (7th Cir. 2009). However, new impeachment evidence Nos. 15-2933, 16-1496 & 16-3149 13 may be material where the government’s case rests entirely on one witness’s testimony and credibility. Id. That is simply not the case here. Vaughn provided no testimony regarding Hawthorne’s possession with intent to distribute charge, which was specific to events that took place on March 6, 2013. As to Hawthorne’s involvement in the conspiracy, Vaughn’s testimony was minimal. He testified that Faulkner was running the Keystone Drug Market beginning in 1995 or 1996, but also stated that he did not see Hawthorne around the Market at that time. Vaughn testified that Hawthorne became a member of the Double-Is in later years, but also stated that he never personally saw Hawthorne make a drug sale on Keystone Avenue. Finally, he testified that Hawthorne told him about one particular crack cocaine transaction that Hawthorne made with another member of the Double-Is. Based on the other evidence presented against Hawthorne, it is clear that the government did not rest its case on Vaughn’s testimony, such that the new impeachment evidence could be considered material. Darrell Pitts testified that Pagan told him that Pagan and Hawthorne sold heroin for Faulkner while Faulkner was running the Keystone Drug Market. Pitts also testified that he saw Hawthorne making hand-to-hand drugs sales on Keystone on at least five occasions around 2011. A Chicago Police Officer testified that, while undercover in 2008, he purchased heroin from Hawthorne near the intersection of Thomas and Keystone. The Chicago Police detective who interviewed Hawthorne after his arrest in 2013 testified that Hawthorne said that he was a member of the Double-Is and that he began selling heroin for Faulkner in 2000. Hawthorne 14 Nos. 15-2933, 16-1496 & 16-3149 also told the officer that Faulkner’s operation was selling between ten and twenty “jabs” of heroin per day. In light of that evidence, there is no reasonable probability that the outcome of Hawthorne’s trial would differ, even if the jury found that Vaughn lacked credibility. Therefore, the court did not abuse its discretion by finding that the undisclosed evidence was not material. D. Pagan’s Sentence Pagan’s only argument on appeal is that the district court miscalculated his criminal history score and, therefore, applied the wrong Guidelines range. The Probation Office’s presentence investigation report recommended five criminal history points based on the following calculation: one point for a juvenile conviction of possession of cannabis; one point for possession of an unregistered firearm; one point for a misdemeanor traffic offense; and two points for committing the current offense while under a criminal justice sentence related to the traffic offense. At the sentencing hearing, the district court adopted the PSR’s recommendation with the agreement of both parties. That placed Pagan in criminal history category III and, when combined with an offense level of 37, resulted in a Guidelines range of 262 to 327 months’ imprisonment. Pagan did not object to his criminal history calculation in the district court. Both parties contend that Pagan forfeited, rather than waived, this argument. In similar cases, we have held that an objection to a criminal history calculation is forfeited when the defendant failed to raise it below. See, e.g., United States v. Gill, 824 F.3d 653, 660 (7th Cir. 2016). Therefore, we will treat the argument as forfeited and review for plain Nos. 15-2933, 16-1496 & 16-3149 15 error. Id. Under the plain error standard, we will reverse the district court’s sentencing determination only where: (1) there is an error; (2) the error is clear or obvious; (3) the error affected the defendant’s substantial rights; and (4) the error seriously impugns the fairness, integrity, or public reputation of the proceedings. Id. at 661 (citation omitted). Pagan argues, and the government agrees, that the court should not have assessed criminal history points for his cannabis and traffic offenses. The state court dockets for Pagan’s two convictions were obtained after the sentencing hearing. As to the cannabis conviction, the court documents showed that a sentence was never imposed, and therefore, no criminal history points should have been assigned. See U.S.S.G. § 4A1.1. As to the traffic conviction, the PSR indicated an 18-month probation term, but the state court documents showed only a 12-month probation term. Because that probation term was not for more than one year, Pagan should not have received a criminal history point for his traffic conviction. See id. § 4A1.2(c)(1). Additionally, because he should not have received the criminal history point for the traffic offense, he should not have received the additional two points for committing the instant offense while under a criminal justice sentence. See id. § 4A1.1(d). We conclude that the district court erred in assessing Pagan five criminal history points based on the incorrect information in the PSR. We have consistently held that “[a] district court’s adoption of erroneous information in a PSR that results in an incorrect Guidelines range, however correct such information appears, constitutes plain error on review.” United States v. 16 Nos. 15-2933, 16-1496 & 16-3149 Jenkins, 772 F.3d 1092, 1098 (7th Cir. 2014) (collecting cases). Accordingly, we find that the court committed plain error here. III. CONCLUSION For the foregoing reasons, Brown’s conviction is affirmed, the district court’s order denying Hawthorne’s motion for a new trial is affirmed, and Pagan’s sentence is vacated and his case is remanded for resentencing.


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This Court has jurisdiction over a decision of a state court that a statute of the state compelling the removal of grade crossings on a railroad is constitutional and a judgment in accordance therewith enforcing the provisions of the statute.
The Act of the legislature of the Connecticut relating to railway grade crossings, Act of June 19, 1889, c. 220, Laws 1889, 134, being directed to the extinction of grade crossings as a menace to public safety is a proper exercise of the police power of the state.
A power reserved by a statute of a state to its legislature to alter, amend, or repeal a charter of a railroad corporation authorizes the legislature to make any alteration or amendment of a charter granted subject to that power, which will not defeat or substantially impair the object of the grant or any rights vested under it.
Railroad corporations are subject to such legislative control as may be necessary to protect the public against danger, injustice, or oppression, and this control may be exercised through a board of commissioners. There is no unjust discrimination and no denial of the equal protection of the laws in regulations regarding railroads which are applicable to all railroads alike.
The imposition upon a railroad corporation of the entire expense of a change of grade at a highway crossing does no violation to the Constitution of the United States if the statute imposing it provides for an ascertainment of the result in a mode suited to the nature of the case.
expense of such alteration, change, or removal, including the damages, as aforesaid, to be paid by the town, city, or borough in whose behalf the application is brought, and the remainder of the expense shall be paid by the railroad company owning or operating the road which crosses such public highway. The directors of every railroad company which operates a railroad in this state shall remove or apply for the removal of at least one grade crossing each year for every sixty miles of road operated by it in this state, which crossings, so to be removed, shall be those which in the opinion of said directors are among the most dangerous ones upon the lines operated by it, and if the directors of any railroad company fail so to do, the railroad commissioners shall, if in their opinion the financial condition"
of the company will warrant, order such crossing or crossings removed as in their opinion the said directors should have applied for the removal of under the above provisions, and the railroad commissioners in so doing shall proceed in all respects as to method of procedure and assessment of expense as if the said directors had voluntarily applied therefor.
Section 2 related to alterations of highways, one-fourth of the expense of which was to be paid by the state. Appeal from any decision of the commissioners under the act was specifically provided for.
"1. On the second day of March, 1891, the railroad commissioners of this state made an order to said company, requiring the removal of the grade crossing of its railroad in Main Street in the Town of Bristol, a full copy of which, marked 'Exhibit A,' is to be annexed hereto and filed herewith."
"1a. Said company is not, and at the date of said order was not, of sufficient ability to execute the work of making the changes required by said order, and its financial condition does not, and did not then, warrant the making of such an order."
"11. Said company cannot meet the expenses of executing the said order of the railroad commissioners, and have enough income left to pay its fixed charges, including interest on its bonds issued as aforesaid and outstanding, and the dividends on its preferred stock issued as aforesaid, and maintain its railroad in good and proper condition."
"12. If the law under which the proceedings were had, as set forth in said order, justifies said order, then it and said law are void as violating both the Constitution of the United States and the Constitution of the State of Connecticut in that said order impairs the obligation of the contracts made by said company with the holders of its bonds and preferred stock, by making it impossible for said company to pay the interest on their bonds and dividends on their preferred stock as agreed between them and said company, and yet maintain and operate its railroad efficiently, and, further, in that it takes the property of said company without just compensation and without due process of law, and denies to it the equal protection of the laws. "
"16. Said order, herein appealed from, was not an order necessary for the safety of the public."
"17. Said order should have been so made, and proceedings leading up thereto had, if at all, under section 2 of the act of 1889, as that one-quarter of the expense of its execution should be paid by the state."
Paragraph 1a was substituted for paragraphs 2 to 10, inclusive, struck out by the court as mere statements of evidence.
"8. Because the court erred in holding that the statute under which said proceedings were had, as set forth in said order of the railroad commissioners, justified said order instead of holding that it was no law, because contrary to the constitution of this state in that it takes the property of the plaintiff without just compensation and without due process of law."
to pay the interest on its bonds and dividends on its preferred stock as agreed between them and said company, and yet maintain and operate its railroad efficiently, and further in that it took the property of said company without due process of law and denied to it the equal protection of the law."
"10. Because the court erred in overruling the claim of the plaintiff, in the twelfth paragraph of its petition of appeal, that said statute was void, and was no justification of said order, under the Constitution of the United States and the Fourteenth Amendment thereof."
"11. Because the judgment does not meet the issues. There is no general finding of the issues against the plaintiff, and no finding as to issues raised in paragraphs 11 and 17."
"1. The said court erred in holding that the statute under which were had the proceedings as set forth in the order of the railroad commissioners exemplified in the record of the case justified said order, and in affirming the judgment of the superior court in and for Hartford County affirming said order, and in overruling plaintiff's claim that said statute was void as violating the Constitution of the United States in that it impaired the obligation of the contracts made by said company with the holders of its bonds and preferred stock, by making it impossible for said company to pay the interest on its bonds and dividends on its preferred stock, as agreed between them and said company, and yet maintain and operate its railroad efficiently, and further in that it took the property of the company without due process of law and denied to it the equal protection of the law."
"2. The said court erred in overruling the claim of the plaintiff in error in the twelfth paragraph of its petition of appeal from the railroad commissioners to the supreme court, as set forth in the record, that said statute was void and was no justification on said order under the Constitution of the United States and the Fourteenth Amendment thereof. "
The reasons of appeal to the supreme court were filed October 7, 1892, and assigned errors in the action of the superior court in dealing with various paragraphs of the petition of appeal from the order of the railway commissioners, and in the admission and exclusion of evidence, but contained nothing questioning the constitutionality of the law under which the proceedings were had until they were amended, December 17, 1892, by adding the paragraphs raising that question. This tardiness in bringing the contention forward is perhaps not to be wondered at, in view of the repeated adjudications of the Supreme Court of Connecticut sustaining the constitutionality of similar laws, as well as of this particular statute, and of the rulings of this Court in reference to like legislation.
for delay only, or that the question on which the jurisdiction depends is so frivolous and not to need further argument."
We agree with counsel that this Court has jurisdiction, but are of opinion that the principles to be applied in its exercise are so well settled that further argument is not needed, and that, this being so, the jurisdiction may be said, under the circumstances, to rest on so narrow a foundation as to give color to the motion to dismiss and justify the disposal of the case on the motion to affirm.
It must be admitted that the Act of June 19, 1889, is directed to the extinction of grade crossings as a menace to public safety, and that it is therefore within the exercise of the police power of the state. And, as before stated, the constitutionality of similar prior statutes, as well as of that in question, tested by the provisions of the state and federal constitutions, has been repeatedly sustained by the courts of Connecticut. Woodruff v. Catlin, 54 Conn. 277; Westbrook's Appeal, 57 Conn, 95; N.Y. & N.E. Railroad Co.'s Appeal, 58 Conn. 5320; Woodruff v. Railroad Co., 59 Conn. 63; State's Attorney v. Branford, 59 Conn. 402; N.Y. & N.E. Railroad Co. v. Waterbury, 60 Conn. 1; Middletown v. N.Y., N.H. & Hartford Railroad, 62 Conn. 492.
expense shall be paid by either corporation alone, or in part by both, and may enforce obedience to its judgment. That the legislature of this state has the power to do all this for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue."
And as to this act, the court, in 58 Conn. 532, on this company's appeal, held that grade crossings were in the nature of nuisances, which it was competent for the legislature to cause to be abated, and that it could, in its discretion, require any party responsible for the creation of the evil in the discharge of what were in a sense governmental duties to pay any part or all of the expense of such abatement.
Close v. Glenwood Cemetery, 107 U. S. 466, 107 U. S. 476; Spring Valley Waterworks v. Schottler, 110 U. S. 347; Pennsylvania College Cases, 13 Wall.190; Tomlinson v. Jessup, 15 Wall. 454.
The charter of this company was subject to the legislative power over it of amendment, alteration, or repeal, specifically and under general law. Priv. & Spec. Laws Conn. vol. 5, pp. 543, 547; vol. 7, p. 466; vol. 8, p. 353; Spec.Laws Conn. 1881, p. 64; Stats. 1875, 278; Gen.Stats. 1888, § 1909; N.Y. & N.E. Railroad v. Waterbury, 60 Conn. 1.
The contention seems to be, however, that the legislature, in discharging the duty of the state to protect its citizens, has authorized by the enactment in question that to be done which is, in certain particulars, so unreasonable, and so obviously unjustified by the necessity invoked, as to bring the act within constitutional prohibitions.
The argument is that the existing grades of railroad crossings were legally established in accordance with the then wishes of the people, but with the increase in population, crossings formerly safe had become no longer so; that the highways were chiefly for the benefit of the local public, and it was the duty of the local municipal corporation to keep them safe; that this law applied to railroad corporations treatment never accorded to other citizens in allowing the imposition of the entire expense of change of grade, both costs and damages, irrespective of benefits, on those companies, and in that respect, and in the exemption of the town from its just share of the burden, denied to them the equal protection of the laws.
not required and accorded, which it could not well be in view of the protracted proceedings before the commissioners and the superior court and the review in the supreme court, but that the scope of inquiry was not as broad as the statute should have allowed, and that the particular crossing to be removed was authorized to be prejudged.
It is further objected that the supreme court had so construed the statute that, upon the issue whether the financial condition of the company warranted the order, no question of law could be raised as to the extent of the burdens which a certain amount of financial ability would warrant, and thus, in that aspect, by reason of the large amount of expenditure which might be, and as matter of fact was, in this instance, required, the obligation of the contracts made by the company with the holders of its securities was impaired. Complaint is made in this connection of the striking out by the superior court of certain paragraphs of the petition on appeal, held by that court and the supreme court to plead mere matters of evidence, and the decision by the supreme court that all the material issues were met by the findings. Those issues were stated by the court to be whether or not the company's directors had removed, or applied for the removal of, a grade crossing, as required by the statute; whether or not the grade crossing ordered to be removed by the commissioners was in fact a dangerous one, which the directors ought to have removed, or for the removal of which the directors ought to have applied, and whether or not the company's financial condition was such as to warrant the order.
no matter whether held by them as individuals or partnerships or associations or corporations."
The Supreme Court of Connecticut held that the statute operated as an amendment to the charters of the railroad corporations affected by it; that, as grade crossings are in the nature of nuisances, the legislature had a right to cause them to be abated and to require either party to pay the whole or any portion of the expense; that the statute was not unconstitutional in authorizing the commissioners to determine their own jurisdiction, and that, besides, the right of appeal saved the railroad companies from any harm from their findings; that it was the settled policy of the state to abolish grade crossings as rapidly as could be reasonably done, and that all general laws and police regulations affecting corporations were binding upon them without their assent.
We are asked, upon the grounds above indicated, to adjudge that the highest tribunal of the state in which these proceedings were had, committed, in reaching these conclusions, errors so gross as to amount in law to a denial by the state of rights secured to the company by the Constitution of the United States, or that the statute itself is void by reason of infraction of the provisions of that instrument.
But this Court cannot proceed upon general ideas of the requirements of natural justice, apart from the provisions of the Constitution supposed to be involved, and in respect of them we are of opinion that our interposition cannot be successfully invoked.
"as a means of bringing to the test of the decision of this Court the abstract opinions of every unsuccessful litigant in the state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded."
"it is hardly necessary to say that the hardship, impolicy, or injustice of state laws is not necessarily an objection to their constitutional validity, and that the remedy for evils of that character is to be sought from state legislatures. "
The conclusions of this Court have been repeatedly announced to the effect that though railroad corporations are private corporations, as distinguished from those created for municipal and governmental purposes, their uses are public, and they are invested with the right of eminent domain, only to be exercised for public purposes; that therefore they are subject to legislative control in all respects necessary to protect the public against danger, injustice, and oppression; that the state has power to exercise this control through boards of commissioners; that there is no unjust discrimination, and no denial of the equal protection of the laws, in regulations applicable to all railroad corporations alike; nor is there necessarily such denial, nor an infringement of the obligation of contracts, in the imposition upon them, in particular instances, of the entire expense of the performance of acts required in the public interest, in the exercise of legislative discretion; nor are they thereby deprived of property without due process of law, by statutes under which the result is ascertained in a mode suited to the nature of the case, and not merely arbitrary and capricious, and that the adjudication of the highest court of a state that, in such particulars, a law enacted in the exercise of the police power of the state, is valid, will not be reversed by this Court on the ground of an infraction of the Constitution of the United States. Nashville &c. Railway v. Alabama, 128 U. S. 96; Georgia Railway & Banking Co. v. Smith, 128 U. S. 174; Minneapolis &c. Railway v. Beckwith, 129 U. S. 26; Dent v. West Virginia, 129 U. S. 114; Charlotte, Columbia &c. Railroad v. Gibbes, 142 U. S. 386; Minneapolis & St. Louis Railway v. Emmons, 149 U. S. 364.


Writing in Lawfare in April 2018, I considered the role of foreign sovereign immunity in the Democratic National Committee’s lawsuit against the Russian Federation and Russian individuals and entities. The case raised an interesting set of issues, I noted, but “these questions will only arise if Russia and the state-related defendants are properly served and if they decide to litigate rather than default.” The courts may get to think through some of these questions after all. It appears that Russia has been served, and on Nov. 9 it responded with a letter and a “Statement of Immunity” (SOI).
The SOI does not merely invoke immunity—it also provides an analysis of various provisions of the Foreign Sovereign Immunities Act (FSIA), describes the purported benefits to the United States of according immunity to Russia in this case, and argues that the case should be dismissed as a political question.
The Democratic National Committee (DNC) alleges that the Russian government hacked into the DNC, exfiltrated information and conspired with the Trump campaign and others to publicize the information during the 2016 presidential campaign. The case has changed a bit since my initial analysis. The amended complaint no longer names “Guccifer 2.0” and the “John Does” (unnamed Russian intelligence operatives) as defendants, so the issues of individual immunity addressed in my earlier post are unlikely to arise.
The SOI invokes immunity for the Russian Federation, which is still named as a defendant in the amended complaint. The arguments it advances likely apply to the General Staff of the Armed Forces of the Russian Federation (commonly called the GRU)—also a named defendant—as well, although the SOI does not explicitly take that position. The amended complaint (¶ 34) alleges that the GRU is an “agency or instrumentality” of Russia under the FSIA. It is unclear whether that allegation is correct: The GRU might be classified as the Russian government itself rather than an agency or instrumentality. In many contexts, however, the distinction does not matter. Foreign states and their agencies and instrumentalities are both entitled to immunity unless an exception applies.
The SOI makes much of the complaint’s allegations that the hacking and dissemination of information constituted an “attack” at the direction of the Russian military. A “military attack” (a term that the amended complaint does not actually use), the SOI argues, is classic sovereign conduct for which a foreign government is immune. Taken at its broadest, this argument is unconvincing. Foreign sovereigns are, indeed, generally entitled to immunity from the jurisdiction of foreign domestic courts for traditional military operations, as discussed below. But the mere involvement of military officials in cyber-operations should not automatically render the foreign state immune from suit under the FSIA.
Consider a slightly different context: The United States has recently indicted foreign state-owned enterprises (SOEs) for stealing trade secrets to benefit foreign businesses. Military involvement of the foreign government in such cases should not automatically entitle an SOE to immunity for activity that targets business and commercial interests, even if that activity might be characterized as an “attack” attributable to the military. Indeed, Chinese military officials have been indicted in the U.S. for violating the Computer Fraud and Abuse Act—the same statute on which the DNC complaint is based in part. And, of course, the conduct alleged in the DNC suit formed the basis for the indictment of twelve Russian officials under that same statute. The GRU has not been indicted.
Although the FSIA probably does not apply in criminal cases (and it certainly does not apply in any cases against individual officials), the customary international law of immunity does apply to criminal prosecutions. The indictments themselves are instances of state practice that tend to show that under customary international law, the United States does not believe that the defendants in those cases are entitled to immunity just because of the military involvement. In civil cases that are governed by the FSIA, the same basic point applies: Military involvement in foreign hacking, theft of trade secrets and similar conduct should not, standing alone, render an SOE or the foreign state itself immune. To be clear, we do not know whether the U.S. government thinks immunity is appropriate in the DNC v. Russia case.
The relationship between military action and the international law of sovereign immunity also suggests that Russia is not immune from suit just because the hacking was allegedly conducted by military officials. International law, like U.S. law, includes an exception to foreign sovereign immunity for tortious conduct in the forum state, but the exception arguably does not cover certain military activities. See Germany v. Italy: Greece Intervening, (¶¶65-78); Restatement (Fourth) § 457, rn 9 (describing, for example, the understanding that the U.N. Convention on the Jurisdictional Immunities of States and Their Property (U.N. Convention) does not apply to activities of armed forces). International law might thus suggest that Russia is entitled to immunity for hacking conducted by its military, even if the conduct would otherwise fall within the tort exception.
The SOI further discusses the two specific exceptions to immunity cited in the DNC’s Complaint: commercial activity (28 U.S.C. § 1605(a)(2)) and tortious conduct that causes injury or damage in the United States (28 U.S.C. § 1605(a)(5)). According to the SOI, neither exception to the FSIA applies.
The complaint alleges that Russia and the Trump campaign worked together to interfere with the U.S. elections in ways that advanced Russian governmental interests. That does not sound like “commercial activity.” Note, however, that a section of the statute not cited in the SOI (28 U.S.C. § 1603(d)) defines “commercial activity” based on the nature of conduct, not its purpose. Conduct that only sovereigns can engage in is not commercial. Examples include setting exchange rates as a regulator of the marketplace, employing diplomats, operating a police department, or administering a public benefits system. But the conduct alleged by the DNC is not unique to sovereigns. For example, intentionally accessing a protected computer and obtaining valuable information, as alleged in Count One of the complaint, as a violation of the Computer Fraud and Abuse Act is “garden-variety” (to use Justice Scalia’s phrase from Argentina v. Weltover) hacking of the sort frequently used in the context of financial or commercial gain.
The SOI notes that murder and kidnapping are not commercial activities, arguing that an action is not necessarily commercial just because a private party is “capable” of committing it. But the SOI fails to mention cases holding that “nefarious” and “illegal” conduct can be commercial. Part of the harm to the DNC, after all, was the release of the confidential business information obtained through hacking. Discrediting a competitor is a classic business tactic, and the day-to-day operation of a campaign is much like a business in many respects.
Nevertheless, it is unlikely that a court would find the commercial activity exception applicable. Attempting to swing an election, even by engaging in conduct available to private parties and even putting aside the sovereign purpose motivating the attempt, is not a business or financial activity that falls within the term “commercial activity.” Russia is likely to prevail on this argument.
A stronger basis for denying immunity to Russia is the exception to immunity for cases involving “personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of the foreign state.” Not surprisingly, the SOI argues that the “entire tort” did not take place in the United States, a requirement imposed by many lower courts. That issue has been analyzed extensively, so I will not dwell on it here. Current case law favors immunity in cases in which some part of the act in question took place outside the United States, but the law is still developing.
The SOI also argues that the disclosure of information does not constitute damage or loss in the United States. Whether or not that is correct, the amended complaint alleges (in ¶¶ 29, 30) that stealing proprietary computer code caused damage to the DNC and that the DNC incurred expenses to “repair and remediate electronic equipment.” Finally, the SOI argues that the “discretionary function exception”—which preserves immunity when the tort exception would otherwise apply in cases in which a policy judgment on the sovereign’s part is involved—applies here and preserves immunity for Russia. Unlike the “entire tort” doctrine, the discretionary function exception is written into the FSIA itself. As The Restatement (Fourth) of Foreign Relations Law describes (§457, rn 4), however, some violations of statutory obligations, including federal criminal law, are not classified as discretionary functions. And, as noted above, Russia may be immune from suit under customary international law because the author of the act or omission was not in the United States. If so, international law provides a reason to read the FSIA’s tort exception narrowly.
The most powerful part of the SOI is not the legal analysis but instead the policy argument that alleged election interference by Russia is best resolved through state to state negotiations and measures, not by private litigation. Russia reminds the reader that the U.S. government and its officials engage in cyber operations of many kinds, and that subjecting Russia to private suit in the U.S. helps clear the way for private damages suits against the United States in other countries.
Perhaps the general trend is moving in that direction. The U.S. Congress has repeatedly expanded the ability of private litigants to recover for harm caused by foreign states in the context of terrorism (see, for example, this analysis of the Justice against Sponsors of Terrorism Act) and as described above, the executive branch is using criminal prosecutions against foreign officials and even against state-owned enterprises to counter some forms of computer-related espionage. The DNC case gives courts the opportunity to take a similar step in the civil cyber context by denying immunity to Russia. The best approach for the courts may be to move cautiously, however, keeping in mind that Congress can step in and lift immunity for government-sponsored cyber operations and that federal prosecutors are engaging in their own investigations of Russian hacking.
Ingrid Wuerth is the Helen Strong Curry Professor of International Law at Vanderbilt Law School, where she also directs the international legal studies program. She is a leading scholar of foreign affairs, public international law and international litigation. She serves on the State Department’s Advisory Committee on Public International Law, she is a Reporter on the American Law Institute’s Restatement (Fourth) on U.S. Foreign Relations Law, and she is on the editorial board of the American Journal of International Law. She has won Fulbright and Alexander von Humboldt awards permitting her to spend substantial time in Germany and she is an elected member of the German Society of International Law.


JU SHI, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
Before Thompson, Stahl, and Kayatta, Circuit Judges. Theodore N. Cox and Ana Lucia Alvarado on brief for petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, and Hillel R. Smith, Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.
Ju Shi (“Shi”), a native of Fujian Province in the People's Republic of China, asks us to review the Board of Immigration Appeals' (“BIA”) decision denying his motion to reopen his removal proceedings. Shi claims his newly presented evidence shows that conditions in Fujian Province have changed in the time since his original application was denied. For the reasons explained below, we find the BIA did not abuse its discretion in finding otherwise, and so we deny his petition.
Shi entered the United States on November 11, 1995. Because he did so without a valid entry document, on September 10, 2007, the Immigration and Naturalization Service charged Shi with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Shi applied for asylum and withholding of removal because he fears he will be sterilized if he returns to China. Shi has two children and claims that forced sterilization of people with two or more children is a common practice in Fujian Province.
● The Congressional-Executive Commission on China's (“CECC”) 2009 report that the “use of coercive measures in the enforcement of population planning policies remains commonplace” and violators of China's population control policies are “in some cases, subjected to forced sterilization, forced abortion, arbitrary detention, and torture.” Fujian Province family planning officials are authorized to force abortions to deal with out-of-plan pregnancies. In 2009, there were at least two reported cases of forced abortion in Fujian.
● Various news and internet reports from 2008 and 2009 that individuals were fined, jailed, saw their family members taken hostage, or were otherwise pressured into abortion or sterilization.
● Reports from Fujian Province from 1996, 2007, 2011, and 2012 that individuals were subject to forced abortion and sterilization.
● Fujian Province government-issued documents from 2007, 2008, 2009, and 2010 that direct local family planning offices to intensify family planning activities, including sterilizations and abortions.
The BIA found Shi's evidence did not demonstrate a material change in conditions. “[S]ocial compensation fees, loss of job, promotion, and education opportunity [sic], expulsion from the party, destruction of property, and other administrative measures continue to be used to enforce the family planning policy that has been in place since before the respondent's 2009 hearing.” Furthermore, “alleged incidents of coercion to meet birth targets in some areas of China have been a longstanding concern, including at the time of the respondent's 2009 hearing.” “At most,” Shi's evidence showed that “pressures to enforce the family planning polic[ies] vary [by location] and fluctuate” over time. Shi challenges these conclusions.
Shi asks us to review the BIA's denial of his request to reopen his removal proceedings. To reopen those proceedings now, more than ninety days after the final administrative decision denying his asylum petition, Shi must (1) show a change in circumstances in China with “material evidence that was not available or discoverable at the prior hearing,” and (2) “present a prima facie case of eligibility for the relief sought.” Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015) (quoting Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013)); see 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Shi bears the burden of proving that conditions deteriorated between his hearing and the filing of his motion to reopen--it is not enough for him to show that conditions are the same, or a “slight temporal fluctuation in the level of ever-prevailing persecution.” Yang Zhao-Cheng v. Holder, 721 F.3d 25, 28 (1st Cir. 2013); see Tawadrous v. Holder, 565 F.3d 35, 38 (1st Cir. 2009).
“The BIA has 'broad discretion ․ to grant or deny a motion to reopen”' removal proceedings, and we review the BIA's denial of a motion to reopen for an abuse of that discretion. Smith v. Holder, 627 F.3d 427, 433 (1st Cir. 2010) (quoting Kucana v. Holder, 558 U.S. 233, 250 (2010)). Under this standard, we review legal conclusions afresh, but we review findings of fact to determine whether or not they are supported by substantial evidence. Id.; Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015); see 8 U.S.C. §§ 1252(b)(4), (6). Substantial evidence means enough evidence that a rational person could accept a finding as true, and so the BIA's findings of fact will stand unless “the record evidence points unerringly” to a different conclusion. Xian Tong Dong v. Holder, 696 F.3d 121, 125 (1st Cir. 2012) (quoting Ruiz v. Mukasey, 526 F.3d 31, 35 (1st Cir. 2008)). We also review the BIA's reasoning for “at least minimal adequacy, 'because cursory, summary or conclusory statements [from the Board] leave us to presume nothing other than an abuse of discretion.”' Romer v. Holder, 663 F.3d 40, 42 (1st Cir. 2011) (quoting Aponte v. Holder, 610 F.3d 1, 4 (1st Cir. 2010)).
With these principles established, we turn to Shi's arguments. Shi claims that the BIA inadequately addressed his evidence, and that properly considered, the evidence shows conditions in China have substantially deteriorated since his hearing in 2009. Neither claim has merit.
First, Shi claims the BIA ignored some of his documents from Fujian Province and summarily dismissed the 2009 and 2010 CECC reports. But, the BIA is not required to address every piece of evidence or “dissect [every argument] in minute detail.” Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007). It need only “articulate[ ] its decision in terms adequate to allow a reviewing court to conclude that the agency has thought about the evidence and the issues and reached a reasoned conclusion.” Id.; accord Li Sheng Wu v. Holder, 737 F.3d 829, 833 (1st Cir. 2013). That is what the BIA did here.
Of course, just because the BIA adequately considered the evidence and explained its conclusions does not necessarily mean that those conclusions are supported by substantial evidence. See, e.g., Xin Qiang Liu, 802 F.3d at 77. Shi's remaining argument boils down to a complaint that they are not. Once again, we disagree with Shi.
Substantial evidence supports the BIA's conclusion that Shi did not show a significant increase in the use of coercion to meet birth targets or a significant change in the enforcement of family planning laws since his hearing. Shi presents numerous documents from Fujian Province that encourage local family planning offices to “step up” family planning enforcement in temporary campaigns. But, Shi's evidence also shows that local officials have been under pressure to enforce the family planning policies since long before his 2009 hearing, so this pressure is not a changed circumstance. And even though these documents encourage stricter enforcement of existing policies, Shi presents little evidence indicating that enforcement has actually increased. Shi's newly presented evidence reports a handful of forced sterilizations and abortions in Fujian Province from 1996 to 2012. The State Department's 1994 country conditions report, and the 2007 State Department report presented to the Immigration Judge, both found that “local officials occasionally employ illegal means, such as forcibly performing abortions or sterilizations,” to meet birth quotas. The 2007 report likewise reported instances of forced sterilizations in Fujian Province in 1998 and 2006. Sadly, a reasonable person can conclude from Shi's evidence that the current rate of forced sterilization and abortion in service of population-control goals is a pre-existing state of affairs.
In fact, many of the campaign documents encourage stricter enforcement of population control policies precisely because the existing policies were not being strictly implemented. For instance, one campaign document reports that “illegal births ․ after having two girls and after having one boy are on the rise,” and another reports that “[t]he materialization rate for sterilization in families with two girls is low.” Indeed, “the idea of a targeted, temporary campaign suggests uneven enforcement in the first instance.” Ping Zheng v. Holder, 701 F.3d 237, 242 (7th Cir. 2012). The BIA's finding that “[a]t most ․ pressures to enforce the family planning policy ․ fluctuate incrementally from time to time” is supported by the evidence Shi presented. On this record, the BIA did not abuse its discretion.
On a motion to reopen removal proceedings, the petitioner bears the burden of showing both a material change in country conditions and his prima facie eligibility for relief. Yang Zhao-Cheng, 721 F.3d at 28; Jutus, 723 F.3d at 110. Because we find that Shi did not meet his burden to show changed country conditions on the first prong, we need not decide whether the conditions described in Shi's documents show his prima facie eligibility for relief on the second. See Yang Zhao-Cheng, 721 F.3d at 29. Shi's petition for review is denied.
1. Shi relies on two out-of-circuit authorities to support his position, but that reliance is misplaced. In Ji Cheng Ni v. Holder, 715 F.3d 620, 627 (7th Cir. 2013), and Fei Yan Zhu v. Attorneyu uGeneral, 744 F.3d 268, 277 (3d Cir. 2014), the BIA essentially ignored the 2009 and 2010 reports' allegations of forced sterilizations and did not address the relevant question on a motion to reopen--whether conditions changed over time. Neither error infects the BIA's decision in this case. Indeed, other courts considering these reports and similar evidence from Fujian Province have determined that substantial evidence supports the BIA's conclusion that the documents do not show changed conditions. See, e.g., Yi Mei Zhu v. Holder, 641 F. App'x 185, 189 (3d Cir. 2016) (affirming BIA finding of no changed circumstances in Fujian between 2006 and 2013); Ping Zheng v. Holder, 701 F.3d 237, 242-43 (7th Cir. 2012) (finding no changed circumstances in Fujian between 2001 and 2011).