Argued Dec. 12, 13, 1933.
Appeal from the Supreme Court of the State of California.
Mr. J. Marion Wright, of Los Angeles, Cal., for appellants.
Mr. James S. Howie, of Los Angeles, Cal., for the People of State of California.
The appellants have been convicted of a conspiracy to violate the Alien Land Law of the state of California.
The indictment charges that the two appellants, Morrison and Doi, feloniously conspired to place Doi in the possession and enjoyment of agricultural land within the state; that possession was obtained, and the land used and cultivated, in execution of the conspiracy; and that Doi was an alien Japanese, ineligible to citizenship, and not protected in his possession by any treaty between the government of the United States and the government of Japan. These acts, if committed with guilty knowledge of each defendant, make out a criminal conspiracy under the statutes of the state.
On the trial the state proved that Dio had gone upon the land and used it under an agreement with Morrison, but did not attempt to prove that he was not a citizen of the United States or that he was ineligible for citizenship. The statutes of California provide that as to these elements of the crime the burden of disproving guilt shall rest on a defendant. By section 9a of the Alien Land Law, as amended in 1927 (California Statutes, 1927, pp. 880, 881, c. 528, § 1), it is enacted that, 'in any action or proceeding, civil or criminal, by the State of California, or the people thereof, under any of the provisions of this act, when the proof introduced by the state, or the people thereof, establishes the acquisition, possession, enjoyment, use, cultivation, occupation, or transferring of real property or any interest therein, or the having in whole or in part the beneficial use thereof by any defendant, or any of such fact(s), and the complaint, indictment or information alleges the alienage and ineligibility to United States citizenship of such defendant, the burden of proving citizenship or eligibility to citizenship shall thereupon devolve upon such defendant.' At the same session of the Legislature, the Code of Civil Procedure of the state was amended by the addition of a new section (1983) which in substance and effect restates the same rule. California Statutes, 1927, p. 434, c. 244. Applying these statutes to this case, the trial judge held (a jury having been waived) that both the defendants, Morrison as well as Doi, were guilty of conspiracy. They were sentenced to be imprisoned for two years, but the sentences were suspended, and the defendants placed upon probation. There was an appeal to the District Court of Appeal for the Fourth District, where the judgment was affirmed. The court overruled the defendants' contention that, by the application of section 9a of the Alien Land Law and section 1983 of the Code of Civil Procedure, there had been a denial of due process of law under the Fourteenth Amendment of the Constitution of the United States. 13 P.(2d) 803. The cause was then transferred to the Supreme Court of California. There defendants' contention under the Fourteenth Amendment was again overruled, and the conviction was affirmed, three judges dissenting. 22 P.(2d) 718. An appeal to this court followed.
The California Alien Land Law must be read in the light of these rulings as to the effect of birth and race. Section 1 of the act (Cal. Stat. 1923, p. 1020, § 1, amending Cal. Stat. 1921, p. lxxxiii) provides that all aliens eligible for citizenship may acquire and occupy real property to the same extent as citizens. Section 2 (as amended by section 2 of act of 1923) provides that aliens not eligible for citizenship may use and occupy real property to the extent prescribed by any treaty between the Government of the United States and the nation or country of which such alien is a citizen or subject, 'and not otherwise.' There is a Treaty between the United States and Japan (Feb. 21, 1911, 37 Stat. 1504) by which the Japanese may own or lease houses, manufactories, warehouses, and shops, and may lease land for residential and commercial purposes. The treaty does not confer a privilege to own or use land for the purposes of agriculture. Webb v. O'Brien, supra, 263 U.S. 323, 44 S.Ct. 112, 68 L.Ed. 318; Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323. Section 3 of the act (as amended by section 3 of the act of 1923) prescribes the rule applicable to the acquisition of shares in corporations organized by aliens for the occupation or use of land; sections 4 and 5 (as amended by sections 4, 5 of the act of 1923) prescribe the rule for alien trustees and guardians; sections 7, 8, and 9 (as amended by sections 6-8 of the act of 1923) provide for the escheat to the state of any interest in real property unlawfully acquired. Section 10 (as amended by section 9 of the act of 1923) provides that: 'If two or more persons conspire to violate any of the provisions of this act they are punishable by imprisonment in the county jail or state penitentiary not exceeding two years or by a fine not exceeding five thousand dollars, or both.' This is the section under which the defendants have been convicted. There is nothing in the statute whereby unlawful occupation of land by an alien ineligible for citizenship is declared to be a crime unless the occupation has been acquired by force of a conspiracy.
This court in Morrison v. California, 288 U.S. 591, 53 S.Ct. 401, 77 L.Ed. 970,2 passed upon a controversy as to the validity of section 9b of the California Alien Land Law, which, though akin to section 9a, has important elements of difference. This section (9b) provides in substance that, when it has been proved that the defendant has been in the use or occupation of real property, and when it has also been proved that he is a member of a race ineligible for citizenship under the naturalization laws of the United States, the defendant shall have the burden of proving citizenship as a defense.3 We sustained that enactment when challenged as invalid under the Fourteenth Amendment of the Federal Constitution. The state had given evidence with reference to the defendant, the occupant of the land, that by reason of his race he was ineligible to be made a citizen. With this evidence present, we held that the burden was his to show that by reason of his birth he was a citizen already, and thus to bring himself within a rule which has the effect of an exception. In the vast majority of cases, he could do this without trouble if his claim of citizenship was honest. The people, on the other hand, if forced to disprove his claim, would be relatively helpless. In all likelihood his life history would be known only to himself and at times to relatives or intimates unwilling to speak against him.
The ruling was not novel. The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. Cf. Wigmore, Evidence, vol. 5, §§ 2486, 2512, and cases cited. Special reasons are at hand to make the change permissible when citizenship vel non is the issue to be determined. Citizenship is a privilege not due of common right. One who lays claim to it as his, and does this in justification or excuse of an act otherwise illegal, may fairly be called upon to prove his title good. In accord with that view are decisions of this court in proceedings under the acts of Congress for the deportation of aliens. A Chinaman by race resisted deportation on the ground that, though a Chinaman, he had been born in the United States. The ruling was that as to the place of birth the burden was upon the alien, and not upon the government. The ruling also was that the imposition of that burden did not deprive the alien of his constitutional immunities. Chin Bak Kan v. United States, 186 U.S. 193, 200, 22 S.Ct. 891, 894, 46 L.Ed. 1121. 'The inestimable heritage of citizenship is not to be conceded to those who seek to avail themselves of it under pressure of a particular exigency, without being able to show that it was ever possessed.' Id. See, also, Ah How v. United States, 193 U.S. 65, 76, 24 S.Ct. 357, 48 L.Ed. 619; Christy v. Leong Don (C.C.A.) 5 F.(2d) 135. Cf. Ng Fung Ho v. White, 259 U.S. 276, 283, 42 S.Ct. 492, 66 L.Ed. 938. We adhered to that principle in Morrison v. California, supra. Upon that basis, we approved the ruling of the Supreme Court of California (People v. Osaki, 209 Cal. 169, 286 P. 1025) that section 9b of the Alien Land Law casting upon a Japanese defendant the burden of proving citizenship after proof of his race had been given by the state was not an impairment of his immunities under the Federal Constitution. No point was made in the statement of jurisdiction or the supporting brief that the crime was conspiracy, and that one of the defendants belonged to the white race. The case was submitted as if both were Japanese.
The question is now as to section 9a. obviously there is a wide difference between the scope of the two sections. Possession of agricultural land by one not shown to be ineligible for citizenship is an act that carries with it not even a hint of criminality. To prove such possession without more is to take hardly a step forward in support of an indictment. No such probability of wrongdoing grows out of the naked fact of use or occupation as to awaken a belief that the user or occupier is guilty if he fails to come forward with excuse or explanation. Yee Hem v. United States, 268 U.S. 178, 183, 184, 45 S.Ct. 470, 69 L.Ed. 904; Luria v. United States, 231 U.S. 9, 25, 34 S.Ct. 10, 58 L.Ed. 101; Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 374, 72 L.Ed. 632; Mobile, etc., R. Co. v. Turnipseed, 219 U.S. 35, 42, 43, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.(N.S.) 226, Ann.Cas. 1912A, 463; Bailey v. Alabama, 219 U.S. 219, 233, 238, 31 S.Ct. 145, 55 L.Ed. 191; Manley v. Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; People v. Cannon, 139 N.Y. 32, 34 S.Ct. 759, 36 Am.St.Rep. 668. 'The legislature may go a good way in raising (a presumption) or in changing the burden of proof, but there are limits.' McFarland v. American Sugar Co., 241 U.S. 79, 86, 36 S.Ct. 498, 501, 60 L.Ed. 899. What is proved must be so related to what is inferred in the case of a true presumption as to be at least a warning signal according to the teachings of experience. 'It is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.' McFarland v. American Sugar Co., supra; Bailey v. Alabama, supra; Manley v. Georgia, supra. There are, indeed, 'presumptions that are not evidence in a proper sense but simply regulations of the burden of proof.' Casey v. United States, supra. Even so, the occasions that justify requlations of the one order have a kinship, if nothing more, to those that justify the others. For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance (Yee Hem v. United States, supra; Casey v. United States, supra), or, if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, vol. 1, § 79.4 The list is not exhaustive. Other instances may have arisen or may develop in the future where the balance of convenience can be redressed without oppression to the defendant through the same procedural expedient. The decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness or of facilities of proof, to be crowded into a formula. One can do no more than adumbrate them; sharper definition must await the specific case as it arises.
We turn to this statute and endeavor to assign it to its class. In the law of California there is no general prohibition of the use of agricultural lands by aliens, with special or limited provisos or exceptions. To the contrary, it is the privilege that is general, and only the prohibition that is limited and special. Without preliminary proof of race, occupation of the land is not even a suspicious circumstance. The inquiry must therefore be whether occupants so situated may be charged with the burden of proving themselves eligible and thus establishing their innocence.
First. The indictment is for conspiracy, and, indeed, the Alien Land Law creates no other crime. In re Akado, 188 Cal. 739, 742, 207 P. 245; Mott v. Cline, 200 Cal. 434, 448, 253 P. 718; California Delta Farms v. Chinese American Farms, 207 Cal. 298, 308, 278 P. 227. Morrison and Doi are charged to have conspired, but Doi alone is charged to be ineligible for citizenship. One might suppose from a reading of the statute that the burden of proof, even if shifted as to him, would be unaffected as to Morrison. The California courts, however, have cast the same burden upon both; and both have been convicted. None the less, in applying the presumption, we must keep before us steadily the quality of their crime. It is impossible in the nature of things for a man to conspire with himself. Turinetti v. United States (C.C.A.) 2 F.(2d) 15, 17. In California as elsewhere conspiracy imports a corrupt agreement between not less than two with guilty knowledge on the part of each. People v. Richards, 67 Cal. 412, 7 P. 828, 56 Am.Rep. 716; People v. Kizer, 22 Cal.App. 10, 14, 133 P. 516, 521, 134 P. 346; People v. Entriken, 106 Cal.App. 29, 32, 288 P. 788; Sands v. Commonwealth, 21 Grat.(Va.) 871, 899; Pettibone v. United States, 148 U.S. 197, 203, 205, 13 S.Ct. 542, 37 L.Ed. 419.
Now, plainly as to Morrison, an imputation of knowledge is a wholly arbitrary presumption. He may never have seen Doi before the transfer of possession or afterwards. He may have made his agreement by an agent or over the telephone or by writings delivered through the mails. Even if lessor and lessee came together face to face, there is nothing to show whether Doi was a Japanese of the full blood, whose race would have been apparent to any one looking at him. Moreover, if his race was apparent, he may still have been a citizen, for anything that was known to Morrison or others. The statute does not make it a crime to put a lessee into possession without knowledge or inquiry as to race and place of birth. The statute makes it a crime to put an ineligible lessee into possession as the result of a willful conspiracy to violate the law. Nothing in he people's evidence gives support to the inference that Morrison had knowledge of the disqualifications of his tenant or could testify about them. What was known to him, so far as the evidence discloses, was known also to the people, and provable with equal case. Only an arbitrary mandate could charge him with guilty knowledge as an inference of law if it were proved that Doi was not a citizen or eligible to become one. Still less can he be charged with such knowledge when Doi's disqualification is itself a mere presumption. In such circumstances the conviction of Morrison because he failed to assume the burden of disproving a conspiracy was a denial of due process that vitiates the judgment as to him. Nor is that the only consequence. Doi was not a conspirator, however guilty his own state of mind, unless Morrison had shared in the guilty knowledge and design. Pettibone v. United States, supra; Gebardi v. United States, 287 U.S. 112, 123, 53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370. The joinder was something to be proved, for it was of the essence of the crime. Without it there was a civil wrong, but not a criminal conspiracy, the only crime denounced. In re Akado, supra. The conviction failing as to the one defendant must fail as to the other. Turinetti v. United States, supra; Williams v. United States (C.C.A.) 282 F. 481, 484; Gebardi v. United States, supra.
Second. The result will not be changed if we view the case on the assumption that possession by one ineligible, when it is the product of agreement, may be criminal as to the tenant who holds with guilty knowledge, though innocent as to the landlord who believes that all is lawful.
We have pointed out before that a lease of agricultural land, unaccompanied by evidence of the race of the lessee, conveys no hint of criminality. For the moment we assume, without intending to decide, that strong considerations of convenience, if they existed, might cast upon the tenant the burden of proving his qualifications and thus disproving guilt. The question will then be whether the normal burden of proof will so thwart or hamper justice as to create a practical necessity, without preponderating hardship to the defendant, for a departure from the usual rule.
In the vast majority of cases the race of a Japanese or a Chinaman will be known to any one who looks at him. There is no practical necessity in such circumstances for shifting the burden to the defendant. Not only is there no necessity; there is only a faint promotion of procedural convenience. The triers of the facts will look upon the defendant sitting in the courtroom and will draw their own conclusions. If more than this is necessary, the people may call witnesses familiar with the characteristics of the race, who will state his racial origin. The only situation in which the shifting of the burden can be of any substantial profit to the state is where the defendant is of mixed blood, the white or the African so preponderating that there will be no external evidence of another. But in such circumstances the promotion of convenience from the point of view of the prosecution will be outweighed by the probability of injustice to the accused. One whose racial origins are so blended as to be not discoverable at sight will often be unaware of them. If he can state nothing but his ignorance, he has not sustained the burden of proving eligibility, and must stand condemned of crime.
The probability is thus apparent that the transfer of the burden may result in grave injustice in the only class of cases in which it will be of any practical importance. The statute does not say that the defendant shall be acquitted if he does not know his racial origin and is unable to make proof of it. What the effect of such a law would be, we are not required to consider. To the contrary, the statute says in substance that, unless he can and does prove it, he will have failed to discharge his burden, and will therefore be found guilty. Moreover, if he were to profess ignorance, and ignorance were an excuse, the trier of the facts might refuse to credit him. Holmes, J., in Ah How v. United States, supra, 193 U.S. 76, 24 S.Ct. 357, 48 L.Ed. 619. There can be no escape from hardship and injustice, outweighing many times any procedural convenience, unless the burden of persuasion in respect of racial origin is cast upon the people.
What has been written applies only to those provisions of the statute that prescribe the rule for criminal causes. Other considerations may or may not apply where the controversy is civil. We leave that question open.
The opinions in Jeffries v. Ankeny, 11 Ohio, 372 and Gray v. State, 4 Ohio 353, rest upon peculiar provisions of the Ohio Constitution.
The appeal was dismissed for the want of a substantial federal question upon a statement as to jurisdiction, and without argument of counsel.
'Sec. 9b. In any action or proceeding, civil or criminal, by the State of California, or the people thereof, under any of the provisions of this act, when the complaint, indictment or information, alleges the alienage and ineligibility to United States citizenship of any defendant, proof by the state, or the people thereof, of the acquisition, possession, enjoyment, use, cultivation, occupation or transferring of real property or any interest therein, or the having in whole or in part of the beneficial use thereof by such defendant, or of any such facts, and in addition proof that such defendant is a member of a race ineligible to citizenship under the naturalization laws of the United States, shall create a prima facie presumption of the ineligibility to citizenship of such defendant, and the burden of proving citizenship or eligibility to citizenship as a defense to any such action or proceeding shall thereupon devolve upon such defendant.' Cal. Stats. 1927, c. 528, p. 881, § 2.
Instances of the application of this principle can be cited in profusion. The cases that follow are typical examples: King v. Turner, 5 Maule & Sel. 206, where a defendant, having game in his possession in violation of a statute whereby possession was generally a crime, was held to have the burden of proving his special qualifications (cf. Yee Hem v. United States, supra; also Spieres v. Parker, 1 T.R. 144, per Lord Mansfield); Fleming v. People, 27 N.Y. 329, a prosecution for bigamy, where, on proof that the defendant had contracted a second marriage during the lifetime of his first wife, the burden was laid upon him to prove exceptional circumstances that would have made the marriage lawful; and finally such cases as Potter v. Deyo, 19 Wend.(N.Y.) 361, 363, and United States v. Turner (D.C.) 266 F. 248 (typical of a host of others) where a defendant has been subjected to the burden of producing a license or a permit for a business or profession that would otherwise be illegal. Cf. United States v. Hayward, 26 Fed.Cas. 240, No. 15,336; Board Com'rs Excise of Auburn v. Merchant, 103 N.Y. 143, 8 N.E. 484, 57 Am.Rep. 705.
Indians not born in the United States and not entitled to the special privileges growing out of service in the war (8 U.S.C. § 3, 8 USCA § 3) are ineligible for citizenship.
There is a strain of Indian blood in many of the inhabitants of Mexico as well as in the peoples of Central and South America. Robert F. Foerster, The Racial Problems Involved in Immigration from Latin America and the West Indies to the United States, Report to Secretary of Labor, 1925, pp. 7, 10, 15, 17, 18, 21, 22, 23, 24, 28, 29, 41.
Whether persons of such descent may be naturalized in the United States is still an unsettled question.
The subject was considered in Matter of Rodriguez (D.C.) 81 F. 337, but not all that was there said is consistent with later decisions of this court. Ozawa v. United States, and United States v. Bhagat Singh Thind, supra. Cf. In re Camille, supra.
Mexicans have migrated into California in increasingly large numbers (T. F. Woofter, Jr., Status of Racial and Ethnic Groups in 'Recent Social Trends,' vol. 1, pp. 553, 562, 572, 573); and there have developed racial problems which have been considered by official bodies. California Departments of Industrial Relations, Agriculture and Social Welfare, 'Mexicans in California,' Report by Governor C. C. Young's Mexican Fact Finding Committee, San Francisco, Cal., 1930, pp. 41, et seq.
The Treaty of Amity, Commerce, and Navigation of 1831 between the United States and Mexico gives to the nationals of either country the privilege of owning personal estate in the other (article 13), but contains no provision in respect of the ownership of land. This treaty was revived after the Mexican War by article 17 of the Treaty of Guadalupe Hidalgo (1848). It was terminated by Mexico in November, 1881. See Malloy, Treaties, vol. 1, p. 1085 (8 Stat. 414; 9 Stat. 935).
As to the appearance of children of marriages between Japanese and the white races, see: S. C. Gulick, The American Japanese Problem, p. 153; Iyenaga v. Sato, Japan and the California Problem, p. 157.


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text:
Argued: March 14, 15, 1935.
In 1926, Turner received in distribution of his father's estate $20,000 in bonds. Wishing to change his inheritance into stock, he opened a marginal account with a stock broker; sold the bonds; and, with the proceeds as margin, purchased, from time to time during that year, an aggregate of 1,200 shares of United Gas Improvement Company stock at a cost of $117,202.50. On this stock the broker received for him, later in 1926, 300 shares as a dividend. There were no further operations in 1926 or in 1927. His marginal account became active in 1928. At the beginning of the year he was long 1,500 shares of this stock; in May he sold 300 shares for $44,619 net; in June he bought 1,000 shares for $143,225; in October he sold 500 shares for $73,865; and in November 500 shares for $74,115. Thus, at the close of the year, he was long 1,200 shares.
'We think the petitioner's (Turner's) communication to his broker of his intention to hold the 1200 shares first purchased as an investment was in effect an order to his broker not to sell those shares, and when, two years later, he ordered the broker to make two sales in lots of 500 shares each, they were, conformably with the original instructions, the 1000 shares last purchased. The petitioner's instructions excluding from sale the shares first purchased were in effect an identification of the shares later sold as those last purchased.
Third. If the facts found by the Board of Tax Appeals had been what the Court of Appeals assumed them to be, there would have been such an identification of shares sold with shares purchased as to preclude the Commissioner from applying the 'First-in, first-out' rule. The Court of Appeals assumed that, 'What Turner did in this case, acting and speaking through his attorney, was to communicate to his broker his intention to hold for investment the shares of U.G.I. he originally purchased.' The facts found by the Board of Tax Appeals do not bear out this assumption of the court. The Board's findings were that, 'The decedent (Turner) always intended to retain the ownership on margin of 1,200 shares of the United Gas Improvement Company stock'; and that, 'an employee of the broker understood * * * that the decedent desired to retain 1,200 shares to take the place of the bonds which he had received from his father.' The difference between the Board's findings and the court's statement of the facts is obviously vital. The court held that Turner's communication of his intention 'was in effect an order to his broker not to sell those shares'; that 'when, two years later, he ordered the broker to make two sales in lots of 500 shares each, they were, conformably with the original instructions, the 1,000 shares last purchased.' But if the employee was told, as the Board found, merely that Turner 'desired to retain 1,200 shares (of the U.G.I. stock) to take the place of the bonds which he had received from his father,' he would naturally believe that so long as any 1,200 shares of the stock were retained, it was immaterial to which of the lots the sales in 1928 were attributed; and hence there was no identification. Thus it was only by departing from the facts as found by the Board of Tax Appeals that the court found justification for reversing the Board's decision.
Sixth. The Court of Appeals did not explicitly hold that the Board's finding as to Turner's communication to his broker was without substantial support in the evidence. The court, in its opinion, does state that, 'The evidence shows conclusively that Turner was sentimental about keeping the original 1,200 shares as an inheritance from his father; that his 'intention' was to retain as an investment the shares originally purchased and sell in speculation the shares more recently acquired.' It does not state that the evidence was equally conclusive as to the communication to the broker of this exact intention. There was, it is true, testimony to the effect that 'from the very beginning West & Company knew Mr. Turner's intentions and knew he was keeping the first purchase of 1,200 shares'; and the failure of the Board so to find was assigned as error by the taxpayer in his petition for review. But there was also testimony showing that Turner, during 1928, traded heavily in 20 other issues of stock. The Court of Appeals did not consider whether, in view of this and other evidence, the Board might reasonably have concluded that the testimony as to the broker's knowledge of Turner's intention was not entirely accurate, and that the broker's only clear understadning of Turner's intention was that, throughout his extensive trading, 1,200 shares of United Gas Improvement Company stock were to remain in his account. Since this question was not considered in the court below nor argued here, the case must be remanded to the Court of Appeals for further consideration.
Art. 4, par. 60, Regulations No. 33 (Revised), Revenue Acts of 1916 and 1917; Art. 39, Regulations Nos. 45, 62, 65, and 69, Acts of 1918, 1921, 1924, and 1926, respectively; Art. 58, Regulations Nos. 74 and 77, Acts of 1928 and 1932, respectively; Act. 22(a)-8, Regulations No. 86, Act of 1934.
The original regulation, Art. 4, par. 60, Regulation No. 33 (Revised), read, 'When stock is sold from lots purchased at different times and at different prices, and the identity of the lots can not be determined as to the dates of purchase, the stock sold shall be charged against the earliest purchases of such stock.' It has been suggested that, 'Under the language quoted from Regulations 33, ('as to the dates of purchase,' omitted in subsequent regulations) it might be argued that the identification intended could have been accomplished merely by recording 'the dates of purchase', rather than by requiring physical identification of the certificates.' Wilkins, Identity of Marginal Transactions, Int. Rev. News, v. 4, no. 7, p. 5 (1931).
Compare Howbert v. Penrose (C.C.A.) 38 F.(2d) 577, 68 A.L.R. 820; Skinner v. Eaton (C.C.A.) 45 F.(2d) 568; Snyder v. Com'rs of Internal Revenue (C.C.A.) 54 F.(2d) 57; Com'r of Internal Revenue v. Merchants' & Mfrs.' Fire Ins. Co. (C.C.A.) 72 F.(2d) 408.
Compare Tracy v. Com'r of Internal Revenue (C.C.A.) 53 F.(2d) 575, 578, 579; Slayton v. Com'r of Internal Revenue, 76 F.(2d) 497, decided March 26, 1935, by the Circuit Court of Appeals for the First Circuit; Heywood Boot & Shoe Co. v. Com'r of Internal Revenue, 76 F.(2d) 586, decided April 1, 1935, by the Circuit Court of Appeals for the First Circuit.
Compare Bishoff v. Com'r of Internal Revenue (C.C.A.) 27 F.(2d) 91, 92; Washburn v. Com'r of Internal Revenue (C.C.A.) 51 F.(2d) 949, 951; Tricou v. Helvering (C.C.A.) 68 F.(2d) 280, 285.
Compare Royal Packing Co. v. Com'r of Internal Revenue (C.C.A.) 22 F.(2d) 536, 538; Com'r of Internal Revenue v. Langwell Real Estate Corporation (C.C.A.) 47 F.(2d) 841, 842; Independent I. & C. Storage Co. v. Com'r of Internal Revenue (C.C.A.) 50 F.(2d) 31, 33; Kansas City Southern Ry. Co. v. Com'r of Internal Revenue (C.C.A.) 52 F.(2d) 372, 379; Houston v. Com'r of Internal Revenue (C.C.A.) 53 F.(2d) 445; Underwood v. Com'r of Internal Revenue (C.C.A.) 56 F.(2d) 67, 73; Eau Clair Book & Stationary Co. v. Com'r of Internal Revenue (C.C.A.) 65 F.(2d) 125, 126.
Compare Kendrick Coal & Dock Co. v. Com'r of Internal Revenue (C.C.A.) 29 F.(2d) 559, 564; Francisco Sugar Co. v. Com'r of Internal Revenue (C.C.A.) 47 F.(2d) 555, 558; Belridge Oil Co. v. Helvering (C.C.A.) 69 F.(2d) 432.
The Solicitor General stated in his petition to this Court for certiorari, that the question presented was 'whether shares of stock held on margin are capable of identification so that a taxpayer selling part of his holdings may select, as his basis for determining gain or loss, the cost of any particular lot'; and counsel for the government may have contended in the Court of Appeals, as he did here, that such identification is impossible. It is also true that the Board of Tax Appeals in other cases has approved the rule for which the government is now contending. See Stryker v. Com'r of Internal Revenue, 21 B.T.A. 561; Leng v. Com'r of Internal Revenue, 22 B.T.A. 149; Seelye v. Com'r of Internal Revenue, 29 B.T.A. 695; compare Kelchner v. Com'r of Internal Revenue, 31 B.T.A. 262.
Compare Lewis-Hall Iron Works v. Blair, 57 App.D.C. 364, 23 F.(2d) 972, 974, 975; Hurwitz v. Com'r of Internal Revenue (C.C.A.) 45 F.(2d) 780, 781; Dickey v. Burnet (C.C.A.) 56 F.(2d) 917, 918.
COMMISSIONER OF INTERNAL REVENUE v. MUNTER. COMMISSIONER OF INTERNAL REVENUE v. SAME.
ELMHURST CEMETERY CO. OF JOLIET v. COMMISSIONER OF INTERNAL REVENUE.
PALMER v. COMMISSIONER OF INTERNAL REVENUE. HELVERING, Commissioner of Internal Revenue, v. PALMER.
DAVIDSON v. COMMISSIONER OF INTERNAL REVENUE.
COLORADO NAT. BANK OF DENVER et al. v. COMMISSIONER OF INTERNAL REVENUE.
HELVERING, Com'r of Internal Revenue, v. KEHOE.
POWERS v. COMMISSIONER OF INTERNAL REVENUE.
GENERAL UTILITIES & OPERATING CO. v. HELVERING, Com'r of Internal Revenue.
HULBURD v. COMMISSIONER OF INTERNAL REVENUE.
SNYDER v. COMMISSIONER OF INTERNAL REVENUE.

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Patrick T. O'Connor joined Oliver Maner LLP as a partner on January l , 1990. His practice concentrates on business litigation, the defense of civil rights claims and the defense of legal malpractice and other professional negligence claims. Mr. O'Connor also represents plaintiffs in select personal injury and wrongful death cases. Mr. O'Connor is licensed to practice in all Georgia courts including the Georgia Supreme Court and the Georgia Court of Appeals, and numerous federal courts including the U. S. Supreme Court, the Courts of Appeal for the Sixth, Eleventh and Federal Circuits, the United States Court of Federal Claims, and the Southern, Middle and Northern Districts of Georgia.
Mr. O'Connor served as the 54th President of the State Bar of Georgia from 2016-2017. He was the first State Bar President from Savannah since Frank "Sonny" Seiler in 1973. Mr. O'Connor previously served as President - Elect and Treasurer of the State Bar of Georgia (2015-2016).
Mr. O'Connor is a Fellow of the American College of Trial Lawyers and has been listed in The Best Lawyers in America (in the categories of commercial litigation, legal malpractice law and alternative dispute resolution) for more than 10 years. He has been named one of the Top 10 Georgia Super Lawyers by Atlanta Magazine, has been listed in the Super Lawyers' Corporate Counsel Edition, and has received an "AV" rating from Martindale-Hubbell for many years. Mr. O'Connor has also been recognized as a member of the Georgia Legal Elite by Georgia Trend Magazine and has been recognized by Best Lawyers in several categories.
Mr. O'Connor is also a mediator and arbitrator, registered with the Georgia Office of Dispute Resolution and The American Arbitration Association, and has served as a mediator or arbitrator in more than 1,000 cases, primarily involving personal injury, professional malpractice claims and commercial disputes. He is a founding member of the Georgia Academy of Mediators and Arbitrators. In 2018 he was selected by his peers as Best Lawyers - Lawyer of the Year for his work in Mediation in Savannah.
From 1985 to 1995, Mr. O'Connor served as a Judge Pro Tempore for the Savannah-Chatham County Recorder's Court. From 1985 to 1989, he served as an Assistant City Attorney for the City of Savannah and continues to represent the City of Savannah. He has handled the defense of several hundred cases for municipalities, counties and their employees throughout Georgia. He presently represents numerous municipalities and counties on behalf of the Georgia Interlocal Risk Management Agency (GIRMA) and the Association of County Commissioners of Georgia Interlocal Risk Management Agency (ACC-IRMA).
Mr. O'Connor has obtained favorable results for his clients in numerous reported appeals. Notable decisions include: Drumm v. George, (Ga. Court of Appeals Case No. A18A0691); Mayor and Alderman of Garden City v. Harris, (Ga. Supreme Court Case No. Sl 7G0692); City of Richmond Hill v. Maia 301 Ga. 257 (2017); Garden City v. Herrera, 329 Ga. App. 756 (2014); We, The Taxpayers v. Board of Tax Assessors of Effingham County, 292 Ga. 31 (2012); Pollman v. swan, 289 Ga. 767 (201 1); King v. Toler, 296 Ga. App. 577 (2009); Mayor and Aldermen of the City of Savannah v. Stevens, 278 Ga. 166 (2004); CSX Transportation. Inc. v. City of Garden City, 277 Ga. 248 (2003); Cameron v. Lang, 274 Ga. 122 (2001); City of Tybee Island v. Godinho, 270 Ga. 567 (1999); Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844 (1998); Mayor & Aldermen of Savannah v. Radford, 261 Ga. 129 (1991); Banks v. Patton, 202 Ga. App. 168 (1991); Cyr v. Mayor and Aldermen of Savannah, 188 Ga. App. 261 (1988); Shuman v. Mayor and Aldermen of Savannah, 180 Ga. App. 427 (1986); and Sammor v. Mayor and Aldermen of Savannah, 176 Ga. App. 176 (1985).
Mr. O'Connor served as the 1995-96 President of the Savannah Bar Association and as President of the Young Lawyers Section of the Savannah Bar Association. He is a member of the American Bar Association, the State Bar of Georgia, the American Board of Trial Advocates and the Federal Bar Association. Mr. O'Connor has served as a member of the Board of Governors of the State Bar of Georgia and the Executive Committee of the State Bar of Georgia and was Secretary of the State Bar from 2014-2015, Treasurer of the State Bar from 2015-2016, President Elect from 2015-2016, and President from 2016-2017. He has served as member of the Georgia ICLE Board of Trustees and is a Fellow of the American Bar Foundation. He has served as a member of the State of Georgia Disciplinary Board-Review Panel. Mr. O'Connor has also served as the Chairman of the Southern District of Georgia Lawyers Advisory Committee, is currently amember of the 1 1 th Circuit Lawyer Qualifications Committee and has served as a member of the State Bar of Georgia Commission on Continuing Lawyer Competency. He has also been appointed by the Georgia Supreme Court to serve as a Mentor in The State Bar of Georgia's Transition Into Law Practice Program. He served as a member of the Judicial Council of Georgia (2016-2017), a member of the Georgia Commission on Dispute Resolution, served on the Chief Justice's Commission on Professionalism (2016-2017), and The Georgia Bar Foundation (20162017). Governor Nathan Deal appointed Mr. O'Connor to Georgia's Judicial Nominating Commission in 2011 and he served in that role through 2018.
Mr. O'Connor has received several law related awards involving the Savannah Bar Association's Judge Frank Cheatham Award (for professionalism) (2009), and the Georgia Legal Services' Champion of Justice Award (2019).
After graduating from Statesboro High School in 1973, Mr. O'Connor received his B.A. degree from Auburn University in 1978. A journalism major, Mr. O'Connor wrote for several newspapers, including the Columbus Enquirer, The Birmingham News, The Auburn Plainsman and The Auburn Bulletin. He attended the University of Georgia Law School where he participated on the Georgia Intrastate Moot Court Team, served as Vice-Chairman of the Georgia Moot Court Board and coached Georgia's National Moot Court Team to the quarter-final round of the national competition in New York City. Mr. O'Connor received his J.D. degree from Georgia in 1981.
Mr. O'Connor served as Chair of the Savannah Country Day School Board of Trustees from 2014-2016, served as a member of the Georgia Southern University Foundation Board of Trustees (2006-2016) and is a member of the Auburn University Dean's Advisory Council for the School of Liberal Arts. He served as a member of the Board of Directors of Horizons Savannah, and as President of the Savannah Civitan Club, as Captain of the Savannah Quarterback Club and as Chairman of Deacons for the Ardsley Park Baptist Church. He has served as President of the Coastal Empire Council of the Boy Scouts of America and received the Boy Scouts' Silver Beaver Award. He is a graduate of the Leadership Savannah Program and is a member of Savannah's St. Patrick's Day Parade Committee. Mr. O'Connor is a past National President of Theta Chi Fraternity, which has more than 140 chapters nationwide. He now serves as litigation counsel for the Fraternity.
Mr. O'Connor is married to the former Carol Darby of Statesboro, and they have three children, Daniel Tyler (Maggie), Thomas Patrick (Kelly), and John Tate (Mary Grace). Mr. And Mrs. O'Connor have four grandchildren, Liam Patrick O'Connor, Daniel Tyler O'Connor, Jr., Margaret Grace O'Connor, and John Tate O'Connor, Jr.

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§ 70.38 - Definitions related to costs.
§ 70.39 - Statutes specifically providing for setting of fees.
§ 70.40 - Charges assessed for the production of records.
§ 70.41 - Waiver or reduction of fees.
§ 70.42 - Consent to pay fees.
§ 70.43 - Payment of fees.
§ 70.44 - Other rights and services.


Driven to offer the citizens of the United States a superior private monetary system, BVNH formed NORFED (National Organization for the Repeal of the Federal Reserve System and the Internal Revenue Service) based in Evansville, Indiana, served as its Monetary Architect and introduced the American Liberty Dollar (ALD) on October 1, 1998.
The ALD currency was 100% backed and 100% redeemable with one ounce 999 fine Silver Libertys. Initially, the currency was issued in gold and silver paper certificates. A silver based electronic Liberty Dollar (eLD) was issued in 2002. The ALD certificates and eLD were legally defined as "Silver Certificates" owned by the bearer. The silver that backed the paper certificates and digital eLD was warehoused at Sunshine Minting in Coeur d'Alene, Idaho.
But in 2006, the U.S. Mint issued a press release stating that prosecutors at the Justice Department had determined that using Silver Libertys as circulating money was a federal crime. The press release also stated that the Silver Libertys were meant to compete with the circulating coinage (currency) of the United States and such competition consequently was a criminal act. The Justice Department also stated that the Liberty was confusingly similar to actual U.S. currency and the language used on NORFED's website was deceptive.
The Liberty Dollar organization responded to the Mint's press release by stating: "The Liberty Dollar never has claimed to be, does not claim to be, is not, and does not purport to be, legal tender." BVNH and supporters of the Liberty Dollar asserted that the Liberty Dollar was not legal tender, that legal tender and barter are mutually exclusive concepts, and that the Liberty Dollar was a numismatic piece or medallion which could be used voluntarily in barter.
On March 20, 2007, Bernard von NotHaus, the president of Liberty Services, filed a Declaratory Judgment lawsuit in the District Court for the Southern District of Indiana against the U.S. Mint's claim that the Liberty Dollar was illegal. Defendants included Henry M. Paulson, Secretary of the Treasury; Alberto R. Gonzales, former Attorney General of the United States; and Edmund C. Moy, Director of the Mint. The lawsuit sought a declaratory judgment that circulating Liberty Dollars as a voluntary barter currency was not a federal crime and an injunction barring the Defendants from publicly or privately declaring the Liberty Dollar an illegal currency and to remove any such declarations from the U.S. Mint's website.
On November 14, 2007, the Liberty Dollar offices were raided by agents of the Federal Bureau of Investigation (FBI) and the U.S. Secret Service. BVNH and Liberty Services sent an email to customers and supporters saying that the agents took all the gold, silver, and platinum, and almost two tons of Ron Paul Dollars. The agents also seized computers and files and froze the Liberty Dollar bank accounts. BVNH's email linked to a signup page for a class action lawsuit so that the victims might recover their assets. At the same time, all forms on the Liberty Dollar organization’s website relating to purchases of Liberty Dollars became nonfunctional.
In May 2009, Bernard von NotHaus and three others were charged with federal crimes in connection with the Liberty Dollar monetary organization. On July 31, 2009, BVNH announced that he had closed the Liberty Dollar operation, pending resolution of the criminal charges. On March 18, 2011, BVNH was found guilty of "making coins resembling and similar to United States coins". His case was only the fifth trial for 18 U.S.C. § 486 that was passed during the chaotic times of the Civil War.
A federal grand jury brought an indictment against Bernard von NotHaus and three others in May 2009 in United States District Court in Statesville, North Carolina and Mr. von NotHaus was arrested on June 6, 2009. Mr. von NotHaus was charged with one count of conspiracy to possess and sell coins in resemblance and similitude of coins of a denomination higher than five cents, and silver coins in resemblance of genuine coins of the United States in denominations of five dollars and greater, in violation of 18 U.S.C. § 485, 18 U.S.C. § 486, and 18 U.S.C. § 371; one count of mail fraud in violation of 18 U.S.C. § 1341 and 18 U.S.C. § 2; one count of selling, and possessing with intent to defraud, coins of resemblance and similitude of United States coins in denominations of five cents and higher, in violation of 18 U.S.C. § 485 and 18 U.S.C. § 2; and one count of uttering, passing, and attempting to utter and pass, silver coins in resemblance of genuine U.S. coins in denominations of five dollars or greater, in violation of 18 U.S.C. § 486 and 18 U.S.C. § 2.
On July 28, 2009, Bernard von NotHaus entered a plea of not guilty.
From the moment the FBI Raid on the Liberty Dollar went public, it created a firestorm of sentiment against the U.S. government and the FBI in particular. Dr. Richard Timberlake, the noted PhD free market economist from the University of Georgia, an arch supporter of private money and the Liberty Dollar in particular, was an outspoken vocal critic of the government's depreciating US dollar. He titled his December 3, 2007 article: Gestapo Raid on Coin-producing Enterprise. Over 100 articles and countless treats flamed the government for its action against the peaceful Liberty Dollar.
When the New York Times asked Bernard von NotHaus about the government's motive for accusing him of terrorism, BVNH scoffed, "This is the United States government. It's got all the guns, all the surveillance, all the tanks, it has nuclear weapons and it's worried about some ex-surfer guy from Hawaii making his own money? Give me a break!"
Whoever, except as authorized by law, makes or utters or passes, or attempts to utter or pass, any coins of gold or silver or other metal, or alloys of metals, intended for use as current money, whether in the resemblance of coins of the United States or of foreign countries, or of original design, shall be fined under this title or imprisoned not more than five years, or both.
On March 18, 2011, Mr. von NotHaus was convicted of "making, possessing and selling his own coins", after a jury in Statesville, North Carolina deliberated for less than an hour. The jury found him guilty of one count under 18 U.S.C. § 485 and 18 U.S.C. § 2, one count of violating 18 U.S.C. § 486 and 18 U.S.C. § 2, and one count of conspiracy, under 18 U.S.C. § 371, to violate sections 485 and 486. He faced up to 22 years in prison, a $250,000 fine, and the threat of being forced to give $7 million worth of minted coins and precious metals to the government, weighing over 16,000 pounds.
After his conviction, Attorney for the Western District of North Carolina Anne M. Tompkins described the Liberty Dollar as "a unique form of domestic terrorism" that was trying "to undermine the legitimate currency of this country". The Justice Department press release quotes her as saying: "While these forms of anti-government activities do not involve violence, they are every bit as insidious and represent a clear and present danger to the economic stability of this country."
Domestic Terrorism, however, is defined in 18 USC § 2331 as “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State,” and no violence was ever attributed to BNVH or The Liberty Dollar.
The Associated Press reported: "Federal prosecutors successfully argued that Bernard von NotHaus was, in fact, trying to pass off the silver coins as U.S. currency. Coming in denominations of 5, 10, 20, and 50, the Liberty Dollar also featured a dollar sign, the word "dollar" and the motto "Trust in God," similar to the "In God We Trust" that appears on U.S. coins".
...if anything is clear from the evidence presented at trial, it is that the last thing Mr. von NotHaus wanted was for Liberty Dollars [to] be confused with coins issued by the United States government...His intention – to protest the Federal Reserve system – has always been plain. The jury's verdict conflates a program created to function as an alternative to the Federal Reserve system with one designed to [deceive] people into believing it was the very thing Mr. von NotHaus was protesting in the first place... The Liberty Dollar was not a counterfeit and was not intended to function as such. The verdict is a perversion of the counterfeiting statutes and should be set aside.
However, once a defendant has been convicted by a jury of his peers, it is incumbent upon the court, in the absence of compelling evidence to the contrary, to uphold that conviction and pass sentence. On Nov 11th, 2014 Judge Voorhees denied Bernard von NotHaus' Motion for Acquittal because the arguments therefor simply reiterated evidence already presented during his trial and offered no new reasoning. The conviction would stand and sentence must therefore be passed.
On December 2, 2014, despite Justice Department insistence that BVNH serve 22 years in federal prison, the maximum possible time, Judge Voorhees carefully enumerated the reasons why he felt that this case deserved a severe downward departure from sentencing guidelines. After his lengthy explanation, Judge Voorhees sentenced Mr. von NotHaus to 6 months house arrest, without ankle monitor or drug testing, to be served concurrently with 3 years of probation.
Early termination of probation was formally granted December 9, 2015 by U.S. District Judge Richard L. Voorhees after only one year - an example of vindication in action - and he is now truly free to continue his quest to return America to a sound, value based, monetary system. http://www.libertydollarnews.org/2015dec/BVNH_pt.pdf.
Whoever, except as authorized by law, makes or utters or passes, or attempts to utter or pass, any coins of gold or silver or other metal, or alloys of metals, intended for use as current money, whether in the resemblance of coins of the United States or of foreign countries, or of original design, shall be fined under this title  or imprisoned not more than five years, or both.
The forfeiture trial resumed on Monday April 4, 2011. Federal prosecutors were seeking to keep roughly $7 million worth (about eight tons of gold and silver minted Libertys) seized in 2007 from the Sunshine Minting warehouse by the FBI and the United States Secret Service.
In late 2014, U.S. District Court Judge Richard L. Voorhees ruled that all Liberty Dollars dated 2007 and earlier seized by FBI and United States Secret Service raid should be returned to their owners. In 2017, a significant number of seized Liberty Dollars were finally returned to their owners after the petitioners filed their claims with the court for their return. True to his word and at the pleasure of Liberty Dollars supporters, BVNH is still providing redemption of gold and silver certificates today, and will continue to do so until the full twenty year term of every certificate has expired.
It is significant to note that, in gaining its conviction against Bernard von NotHaus for counterfeiting, the government has actually narrowed the scope of its authority: digital non-government currencies are not subject to USC 486. In just the few short years since Bitcoin was inspired by the Liberty Dollar, it is already 2,000 times larger than the Liberty Dollar, knows no national bounds, and is far more contemptuous of the US Dollar.
In addition, the case also clarified the position on Silver Certificates, which were never considered to be any form of contraband or counterfeit. There is substantial reference to Silver Certificates as lawful negotiable instruments in every state and federal laws to ensure that the New Liberty Dollars are legal and will be around for a very long time.
This is the history of the Liberty Dollar. It should be obvious to anyone that BVNH did not intend to break the law and even Judge Richard L. Voorhees alluded to that fact during his sentencing. BVNH's mission was to bring about lawful change to our country’s monetary policy, not an attempt to subvert it or allow his work to be confused with U.S. money.
Today, BVNH is proud to see the Liberty Dollar Network bringing back the non-political benefits of Liberty Dollars, which means that many people will be able to take advantage of the inherent power of silver to resist the ravages of inflation and preserve their personal purchasing power for the future.
The Liberty Dollar Legacy Lives!


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Before SEYMOUR, MCKAY and BRORBY, Circuit Judges.
Lonnie Lynn brought this action for money damages under the Americans with Disabilities Act, 42 U.S.C. §§ 12111-12117 (ADA), against the Colorado Department of Institutions, Division of Youth Services (Division), a division of the Colorado State Government. Mr. Lynn's complaint alleges that he began working for the Division in 1979, that he became mentally disabled in 1993-94, and that he requested reasonable accommodation but was deemed to have resigned his position in 1994. The district court granted the Division's motion for summary judgment, ruling that Mr. Lynn's action was barred by collateral estoppel and that he did not have a disability. Mr. Lynn appealed. For the reasons given below, we hold we lack jurisdiction to hear this appeal and dismiss the action.
While Mr. Lynn's appeal was pending, the Supreme Court decided Bd. of Trustees v. Garrett, 121 S. Ct. 955 (2001), holding that suits against states for money damages under the ADA are barred by the Eleventh Amendment. Garrett effectively overrules this court's decision to the contrary in Cisneros v. Wilson, 226 F.3d 1113, 1124 (10th Cir. 2000). Consequently, we issued an order directing Mr. Lynn to show cause why this appeal should not be dismissed in light of the decision in Garrett. We have considered the parties' response to the show cause order, and we conclude this action is barred by the Eleventh Amendment.
In his complaint, Mr. Lynn sought damages for "lost earnings and benefits, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to reputation, humiliation, embarrassment and medical and insurance expenses and other damages in an amount subject to proof." Aplt. App. at 10. In addition, Mr. Lynn sought "injunctive relief to prevent the Division from further violations of his statutorily protected rights." Id. Mr. Lynn does not deny that his claim for monetary relief is barred under Garrett, but he argues that his claim for injunctive relief, in particular the equitable relief of reinstatement, still remains available to him.
Mr. Lynn relies on a footnote in Garrett in which the Court observed that its holding did not "mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced . . . by private individuals in actions for injunctive relief under Ex parte Young, 209 U.S. 123 (1908)." Garrett, 121 S. Ct. at 968 n.9. Mr. Lynn contends that in light of this comment, his claim for the equitable relief of reinstatement is not barred. As the Division points out, however, the doctrine of Ex parte Young is not available to Mr. Lynn.
"Under the Ex parte Young legal fiction, when an official of a state agency is sued in his official capacity for prospective equitable relief, he is generally not regarded as 'the state' for purposes of the Eleventh Amendment and the case may proceed in federal court." ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188 (10th Cir. 1998) (emphasis added). The Ex parte Young exception is a narrow one. Elephant Butte Irrigation Dist. v. Dep't of Interior, 160 F.3d 602, 607 (10th Cir. 1998). "[I]t 'has no application against the States and their agencies, which are barred regardless of the relief sought.'" Buchwald v. Univ. of N. M. Sch. of Med., 159 F.3d 487, 496 (10th Cir. 1998) (emphasis added) (quoting Puerto Rico Aqueduct v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)); see also Elephant Butte, 160 F.3d at 607 (Ex parte Young doctrine applies only when "lawsuit involves an action against state officials, not against the state"); ANR Pipeline, 150 F.3d at 1187 (any form of relief against state agency, even solely prospective injunctive relief, is barred).
Mr. Lynn has sued only the state agency with whom he was employed. He did not name any state official in any capacity. Accordingly he may not proceed under the Ex parte Young doctrine, even assuming that the equitable relief he now seeks would otherwise be available.
The appeal is DISMISSED for lack of jurisdiction. The judgment of the district court is VACATED, and the matter is REMANDED with instructions to dismiss the action, without prejudice, for lack of jurisdiction.

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G.R. No. 180661, December 11, 2013 - GEORGE ANTIQUERA Y CODES, Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.
GEORGE ANTIQUERA Y CODES, Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.
This case is about a supposed warrantless arrest and a subsequent search prompted by the police officers’ chance sighting through an ajar door of the accused engaged in pot session.
The prosecution evidence shows that at around 4:45 a.m. of February 11, 2004, PO1 Gregorio Recio, PO1 Laurence Cabutihan, P/Insp. Eric Ibon, PO1 Rodelio Rania, and two civilian operatives on board a patrol car and a tricycle were conducting a police visibility patrol on David Street, Pasay City, when they saw two unidentified men rush out of house number 107-C and immediately boarded a jeep.
On July 30, 2004 the RTC rendered a Decision8 that found accused Antiquera and Cruz guilty of the crime charged and sentenced them to a prison term ranging from six months and one day to two years and four months, and to pay a fine of P10,000.00 each and the costs of the suit.
The RTC said that the prosecution proved beyond reasonable doubt that the police caught accused Antiquera and Cruz in the act of using shabu and having drug paraphernalia in their possession. Since no ill motive could be attributed to PO1 Recio and PO1 Cabutihan, the court accorded full faith and credit to their testimony and rejected the self-serving claim of Antiquera.
On appeal, the Court of Appeals (CA) rendered a Decision10 on September 21, 2007 affirming in full the decision of the trial court. The accused moved for reconsideration but the CA denied it.11 The accused is now before this Court seeking acquittal.
The issue in this case is whether or not the CA erred in finding accused Antiquera guilty beyond reasonable doubt of illegal possession of drug paraphernalia based on the evidence of the police officers that they saw him and Cruz in the act of possessing drug paraphernalia.
The prosecution’s theory, upheld by both the RTC and the CA, is that it was a case of valid warrantless arrest in that the police officers saw accused Antiquera and Cruz through the door of their house, in the act of having a pot session. That valid warrantless arrest gave the officers the right as well to search the living room for objects relating to the crime and thus seize the paraphernalia they found there.
But the circumstances here do not make out a case of arrest made in flagrante delicto.
1. The police officers claim that they were alerted when they saw two unidentified men suddenly rush out of 107 David Street, Pasay City. Since they suspected that a crime had been committed, the natural thing for them to do was to give chase to the jeep that the two fleeing men boarded, given that the officers were in a patrol car and a tricycle. Running after the fleeing suspects was the more urgent task but the officers instead gave priority to the house even when they heard no cry for help from it.
By the way, Mr. Cabutihan, when you followed your companion towards the open door, how was the door open? Was it totally open, or was it partially open?
It was partially open Your Honor.
By how much, 1/3, 1/2? Only by less than one (1) foot?
More or less 4 to 6 inches, Your Honor.
So how were you able to know, to see the interior of the house if the door was only open by 6 inches? Or did you have to push the door?
We pushed the door, Your Honor.
Were you allowed to just go towards the door of the house, push its door and peeped inside it, as a police officer?
Are you not allowed to – Are you not required to get a search warrant before you can search the interior of the house?
What do you mean by yes? Would you first obtain a search warrant before searching the interior of the house?
So why did you not a [sic] secure a search warrant first before you tried to investigate the house, considering your admission that you suspected that there was something wrong inside the house?
Because we saw them that they were engaged in pot session, Your Honor.
But before you saw them, you just had to push the door wide open to peep through its opening because you did not know what was happening inside?
Velasco, Jr. (Chairperson), Peralta, Mendoza, and Leonen, JJ., concur.
* Also referred to as George Antiquira in some parts of the records.
1 In violation of Section 12, Article II of Republic Act 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.
7 TSN, May 31, 2004, pp. 3-4.
10Rollo, pp. 56-70. Penned by Associate Justice Jose C. Reyes, Jr. and concurred in by Associate Justices Japar B. Dimaampao and Myrna Dimaranan Vidal.
13People v. Molina, 404 Phil. 797, 809 (2001).
14Zalameda v. People, G.R. No. 183656, September 4, 2009, 598 SCRA 537, 552.
15 TSN, May 20, 2004, pp. 8-10.
16 See: Luz v. People, G.R. No. 197788, February 29, 2012, 667 SCRA 421, 434.
17 See: People v. Villareal, G.R. No. 201363, March 18, 2013, 693 SCRA 549, 561.
18People v. Martinez, G.R. No. 191366, December 13, 2010, 637 SCRA 791, 801.

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Paul Castoldi, Francis J. Butler, Spokane, Wash., for petitioners.
Charles K. Rice, Asst. Atty. Gen., Marvin W. Weinstein, Robert N. Anderson, Lee A. Jackson, Attys., Dept. of Justice, Washington, D. C., for respondent.
Before HEALY and FEE, Circuit Judges, and JAMES M. CARTER, District Judge.
The petitioner, Mathew J. Spiesman, Jr., and his wife, filed joint federal income tax returns for the calendar year 1951 and 1952, and the family partnership, "Spiesman & Sons" filed information returns on Form 1065 for the same year. The matters in controversy concern only one month of 1951, December 1st to December 31st, and all of 1952. The petitioner, Mary Spiesman, the wife, is a party solely because she and her husband filed joint returns for the years in question. She is not otherwise involved in this controversy.
The Commissioner determined deficiencies existed in the return of income and tax, notice was mailed, and the taxpayers filed a petition with the Tax Court for redetermination of deficiencies, within the statutory time. The case was heard by the Tax Court on a record consisting in part, of stipulated facts and in part of oral testimony. Deficiencies in income tax were found in the amounts of $2,155.22 and $14,056.20 for the years of 1951 and 1952, respectively. Written findings of fact and opinion were filed, 28 T.C. No. 62. The decision was reviewed by the full Tax Court. The Tax Court held that the five minor children of the petitioner, Mathew J. Spiesman, Jr., were not bona fide partners in the partnership known as "Spiesman & Sons" during the years 1951 and 1952, within the meaning of the sections of the Internal Revenue Code set forth above, and that income reported for the children as partners on Form 1065, should have been included in the return of Spiesman Jr. The case comes here on petition to review the decision of the Tax Court.
Prior to 1950 Spiesman Jr., owned certain slot machines located in the Gem State Club of Idaho. Under agreement with the club, Spiesman received 20% of the receipts from the slot machines; he was also President and Manager of the club. On February 1, 1950, Spiesman Jr. and his father, Mathew Spiesman, Sr., hereafter referred to as Spiesman Sr., entered into a partnership known as "Spiesman & Spiesman" for the purpose of operating amusement devices. The agreement recited that "the assets to be taken over by the partnership are in the possession and owned by the partner, Mathew J. Spiesman, Jr." and that Spiesman Sr., "agrees to pay a sum equal to one-half of the value of the assets;" that the partners should bear equally all expenses, fees, licenses, permits and share the profits one-third to Spiesman Sr., and two-thirds to Spiesman Jr., the petitioner.
Spiesman Jr., claims to have learned in October of 1951 about the amendments of the Internal Revenue Act of 1951 referred to above, and on or about December 1st, a new partnership agreement was entered into between Spiesman Sr., Spiesman Jr., and the latter's minor children, who on or about that date were of the following ages: Mathew Joseph, 11, Philip James, 8, Leonard John, 6, Mathew James III, 5, Francis Edward, 1.
The record shows that Spiesman Sr. was 80 years of age in 1956, the date of the Tax Court hearings and would have been about 75 years of age in 1951. He testified he made gifts to his son, Spiesman Jr., and gifts to the children of Spiesman Jr., consisting largely of stock at times from 1945 to 1951, and that in December of 1951, he gave each of the five children an interest in the equipment of "Spiesman & Spiesman," the partnership of Spiesman Jr. and Spiesman Sr. Spiesman Jr., testified he gave the five children part of his interest in the old partnership.
The result reflected in the partnership agreement of "Spiesman & Sons" showed that Spiesman Jr. claimed a 3/9 interest, Spiesman Sr. a 1/9 interest and each of the five children claimed a 1/9 interest in the partnership of "Spiesman & Sons."
There is controversy over this agreement. It recited that it was entered into between Spiesman Sr., Spiesman Jr., and the five minor children, and was signed by Spiesman Sr., Spiesman Jr., and by Spiesman Jr., as guardian for the five minor children. It is without dispute that Spiesman Jr., had been appointed in 1947 as guardian for the first four of the minor children, but he was not appointed as guardian for the youngest, Francis Edward until October of 1953. He was therefore not the guardian of Francis Edward at the time the agreement was purportedly signed on behalf of said minor.
More important, paragraph Second of the partnership agreement read: "At the time of this agreement the assets to be taken over by the partnership are in the possession and owned by the partner(s), Mathew James Spiesman Jr., (and Mathew James Spiesman Sr.) * * *". The words and letters within the brackets were interlineations inserted by Spiesman Jr., in 1953, after the execution of the agreement and after the initiation of the investigation of Spiesman Jr.'s income tax returns for the years involved. Thus, as originally written, the agreement recited that the assets were owned by Spiesman Jr.
The partnership returns filed by the new partnership, "Spiesman & Sons" for the period December 1, 1951 to December 31, 1951, showing net earnings distributable to the partners in the sum of $3,254.30; and for the year 1952 showed net earnings distributable to the partners in the sum of $46,021.71. This income was derived from the operation of slot machines and amusement devices, most of which were located in the Gem State Club and which had continued to be operated under the original agreement as to percentages, entered into between Spiesman Jr., and his father, prior to the formation of the partnership of "Spiesman & Sons." Licenses for the operation of the machines were obtained and paid for by the Gem State Club or by others at other locations where they were placed. Spiesman Jr., spent part of his time operating the affairs of "Spiesman & Sons", and the major part of his time as Manager of the Gem State Club, for which he received a salary. The Tax Court found that "Capital is a material income-producing factor of the Spiesman & Sons partnership and the salary paid Spiesman for managing the affairs of the partnership is reasonable."
From 1947 to 1952 no inventories or accountings were filed by Spiesman Jr., as guardian for the four older boys. In October of 1953, after the initiation of the investigation of the income tax returns for the tax years involved, Spiesman Jr., as guardian, filed inventories and accounts for the four older boys. The accounts were approved, allowed and settled by the Probate Court. In October 1953, he was appointed guardian for the youngest boy, and inventories and accounts were filed for the estates of all five boys in 1954, 1955 and 1956 for the respective preceding years.
No withdrawals were made from the capital accounts of the partners during the period involved in 1951, namely the month of December.
Computations show, taking the capital account at the beginning of the partnership of Spiesman & Sons, on December 1, 1951, and adding the distributable earnings for 1951, that the capital account for the year 1951, was accurately computed; and that adding the distributable earnings for 1952 and taking into account the withdrawals, the capital account for the end of the year 1952, was accurately computed.
According to the inventory and accounting record filed by Spiesman Jr., as guardian of the estate of his five sons, the following withdrawals on behalf of the sons was made by him as guardian from "Spiesman & Sons."
Thus, there were discrepancies between the withdrawals shown in the capital account for 1952, and as shown on the guardianship records for the same year. It will be noted that the withdrawals on behalf of Michael, the oldest boy, is exactly $1,000 greater, as shown by the guardianship records than as shown by the capital account. The withdrawals on behalf of Philip and Michael, the next two sons, were exactly $1,000 less, as shown by the guardianship records, than as shown on the capital account. As to the youngest boy, Leonard, the withdrawals as shown by the guardianship records were $1,102.95 less than those shown in the capital account.
The funds withdrawn were in part, deposited to the savings account of the children, used to pay life insurance premiums, the policies being payable to the mother of the children, and in part used to pay income taxes and to purchase additional securities for them. The Tax Court found, "None of these funds insofar as the accounting reports filed with the Probate Court reveal, were used for the support or living expenses of any of the minor children."
The Tax Court found that the withdrawals on behalf of the children were not equal to the one-ninth interest purportedly owned by each child, and that unequal withdrawals were also shown by the guardianship records for 1952, 1953 and 1954. In explaining the discrepancies, where withdrawals were in some cases more and in some cases less than the distributable share of the child, Spiesman Jr. testified that certain of the boys had income from stocks, and that he tried to "even up" the cash account of each child, so that if he was killed or died, the child would not say, "Well my dad was not very fond of me, he didn't leave me anything." The Tax Court found that such conduct did not conform to the purported partnership interest of the children, or to the duties of a guardian if the partnership interests were bona fide, but that they were the action of a parent who "owned, controlled and distributed his own funds according to his own desires and ideas."
In 1947, the Legislature for the state of Idaho enacted a statute [S.L.1947, c. 151; sections 50-1501 to 1510 inclusive, Idaho Code] providing it should be lawful for any person to own and operate coin operated amusement devices within the corporate limits of any incorporated city or village after having secured a license. The term "person" was defined to include "an individual person, partnership, corporation or association." The law further provided that no such device might be operated on any premise except those owned or leased by the licensee, and that no person other than the licensee "may have any legal, equitable or financial right, title or interest in such device * * * nor receive any rental or remuneration therefrom or from the operation thereof." Subsequently, on December 3, 1953, in State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328, the law was declared unconstitutional by the Idaho Supreme Court. See State ex rel. Nielson v. City of Gooding, 75 Idaho 36, 266 P.2d 655. Also, in 1953 the statute was repealed [S.L.1953, c. 62, section 1, page 82].
The machines here in question, were operated at the Gem State Club or other locations not shown to have been owned or leased by Spiesman Jr., the partnership or any members of the "Spiesman & Sons" partnership. All licenses were obtained and paid for by the Gem State Club or the operators of other places where the machines were located. The Tax Court concluded that even if the statute had not been declared unconstitutional, the minor children, partners in "Spiesman & Sons" could not be considered as having any "legal, equitable or financial title or interest" in such devices, and that they could not legally receive any rent or remuneration from the operation of such device.
The Tax Court also found that the partnership agreement of "Spiesman & Sons" was "to say the least" inconclusive with respect to the transfer of title to the machines. No other written transfers of title appear in evidence, and the books and the records of the partnership were not placed in evidence. The partnership returns filed by "Spiesman & Sons" for 1951 and 1952 showed that the full value of the machines were included in the capital account of Spiesman Jr., and no interest in such machines was included in the capital account of any of the children.
The Tax Court found, "Considering all the facts and circumstances herein, we hold that the five minor children of the petitioner were not the real owners of capital interests in the partnership, and were not bona fide partners in the Spiesman & Sons partnership during the taxable years 1951 and 1952."
1. The Tax Court failed to give full import to Sections 340(a) and (b) of the Revenue Act of 1951 (supra).
2. The Tax Court relied on and misapplied the Culbertson case, Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S. Ct. 1210, 93 L. Ed. 1659, in view of the provisions of the Revenue Act of 1951.
(a) That the Spiesman & Sons partnership was a "sham."
(b) In relying on the interlineations made in 1953 on the partnership agreement.
(c) In considering that the partnership agreement showed no clear transfer of title of the machines to the children and the fact that the full value of the machines were shown in the capital account of Spiesman Jr.
(d) In considering the unequal withdrawals from the capital account of the children, and not giving full weight to the approval of the Probate court of the subsequent accounting in the children's guardianship estates.
(e) In relying on the fact that there was no accounting or supervision of the guardianship estates during the taxable years in question.
(f) In relying on the Idaho law concerning slot machines and the holding of the State court that the law was unconstitutional.
4. The Tax Court erred in holding the entire income assigned to the minor children in the returns should be taxed to Spiesman Jr., rather than in proper proportions to Spiesman Jr. and his father, Spiesman Sr.
Points I and II in our summation of the contentions of Spiesman Jr., will be considered together, points III and IV separately.
The Tax Court Properly Applied the Law.
The Supreme Court in Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S. Ct. 1210, 93 L. Ed. 1659, had in 1949 laid down the test for determining the validity of family partnerships for tax purposes. This test was one of fact and depended on "whether, considering all the facts * * * the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise." (337 U.S. at page 742, 69 S. Ct. at page 1214). The Supreme Court also pointed out what it termed an "error in emphasis" (337 U.S. at page 741, 69 S. Ct. at page 1214) by the Tax Court in requiring that an essential to membership in a valid family partnership was a contribution by each member of either vital services or original capital. The court further pointed out, (337 U.S. at page 745, 69 S. Ct. at page 1216) that its previous decision in Commissioner of Internal Revenue v. Tower, 1946, 327 U.S. 280, 66 S. Ct. 532, 90 L. Ed. 670, "did not say that the donee of an intra-family gift could never become a partner through investment of the capital in the family partnership;" and that at page 746 of 337 U.S., at page 1216 of 69 S. Ct., the Supreme Court said "that existence of the family relationship * * * is simply a warning that things may not be what they seem", and that "transactions between members of a family will be carefully scrutinized" to determine whether the donee partner acquired sufficient dominion and control over the property to influence the conduct of the partnership in the disposition of its income and thus became a "true partner."
"Your committee's amendment makes it clear that, however the owner of a partnership interest may have acquired such interest, the income is taxable to the owner, if he is the real owner. If the ownership is real, it does not matter what motivated the transfer to him or whether the business benefited from the entrance of the new partner."
The report further referred to various cases in the courts "which suggest that an intrafamily gift of a partnership interest, where the donee performs no substantial services, will not usually be the basis of a valid partnership for tax purposes. * * *"
"The amendment leaves the Commissioner and the courts free to inquire in any case whether the donee or purchaser actually owns the interest in the partnership which the transferor purports to have given or sold him. Cases will arise where the gift or sale is a mere sham * * The same standards apply in determining the bona fides of alleged family partnerships as in determining the bona fides of other transactions between family members. Transactions between persons in a close family group, whether or not involving partnership interests, afford much opportunity for deception and should be subject to close scrutiny. All the facts and circumstances at the time of the purported gift and during the periods preceding and following it may be taken into consideration in determining the bona fides or lack of bona fides of a purported gift or sale."
Thus Congress clearly stated that recognition of membership in a family partnership could not be denied merely because the partner had acquired his interest by a gift from a member of his family, if in fact a bona fide gift was intended and made. The law was not changed in any respect as to the requirement existing under the Culbertson case, supra, that the courts carefully scrutinize such transactions, determine the bona fides thereof, and determine whether the transaction was merely a sham for tax purposes, or whether the donor had in fact relinquished dominion and control over the purported gifts.
There is nothing in the Tax Court decision to indicate that they misapplied the law. No criticism was directed at the fact that the interest of the minor children of the partnership was claimed to have arisen by gifts from the father and grandfather. The Tax Court decision, holding the family partnership invalid for tax purposes, was not based upon this ground.
The Factual Determination of the Court Was Not Clearly Erroneous and Must Be Upheld.
The decision of the Tax Court was based entirely on the consideration of the facts and circumstances. The Tax Court found that the transaction was in fact a sham and that five minor children were not bona fide partners during the taxable years within the meaning of the law.
In reaching this decision, the Tax Court pointed to various circumstances which we hold it might rightfully consider. Among others it considered the interlining of the partnership agreement; that the agreement showed no clear transfer of title of the slot machines to the children and that the full value of the machines were included within the capital account of Spiesman Jr.; that there were unequal withdrawals from the capital account of the children; that Spiesman Jr., had testified this was done to "even up" the amounts received by the children, taking into consideration other gifts and income; that there were no accountings or supervision of the guardianship assets during the tax years in question; and that under Idaho law, the children as purported partners, could not legally own interests in the business income-producing assets, namely the slot machines; that ownership of such machines was only legal after license was secured and that such machines could not be operated on premises other than those owned by the licensee; and that no person other than the licensee could have any interest whatever in such machines.
The Tax Court is a trier of fact. Based on the record before it, it made findings of fact and ultimately found that bona fide gifts were not intended or made, and that the children were not bona fide partners in the business during the years 1951-1952.
Such factual determinations by the Tax Court will not be disturbed on appeal unless they are found to be "clearly erroneous," Smith v. Westover, 9 Cir., 1956, 237 F.2d 201, 203; Cf. Parker v. Westover, 9 Cir., 1957, 248 F.2d 490. As shown above, we are satisfied that the findings of the Tax Court were "not clearly erroneous" but were supported by the facts in the record.
There Is No Merit To Petitioners' Contention That Part of the Income Reported for the Children, Should Be Charged Back To Spiesman Sr., Rather Than Petitioner Spiesman Jr.
The opinion of the Tax Court stated that petitioners, at the hearing and on briefs, have conceded or abandoned all other issues raised by the pleadings, except one, namely whether the five minor children were partners during 1951 and 1952. No mention was made before this court in petitioners' briefs or arguments that such recital in the opinion of the Tax Court was not correct.
The partnership agreement of February 1, 1950, between Spiesman Jr. and his father, Spiesman Sr., recited "the assets to be taken over by the partnership are in the possession and owned by the partner, M. J. Spiesman Jr." The agreement further provided that Spiesman Sr., "agrees to pay a sum equal to one-half of the value of the assets."
There is testimony in the record by Spiesman Sr., that he purchased and acquired one-half of the assets in the partnership of "Spiesman and Spiesman," and that he gave part of his interest to the minor children. Standing against this testimony is the second partnership agreement for "Spiesman & Sons," dated December 1, 1951, and signed by Spiesman Sr., which at the time of its execution recited, "The assets to be taken over by the partnership are in possession and owned by the partner, Spiesman Jr." The agreement further provided for cash contributions, and Spiesman Sr. is listed along with the children as having contributed $100. The partnership returns on Form 1065 for each year, show as distributable to Spiesman Jr. the identical amount as distributable to each of the minor children, who likewise had made a $100 contribution. The capital account for 1951, shows only the $100 contributed by Spiesman Sr. and $2,774.63 in the account of Spiesman Jr., representing the machines. Likewise the capital account for 1952 again shows Spiesman Sr., as having only the capital and earnings attributable to his 1/9 interest from his $100 contribution, and the value of the machines still in the capital account of Spiesman Jr.
The Tax Court, as a finder of fact, was entitled to conclude that Spiesman Sr. did not have any interest in the machines and therefore properly concluded the income allocated to the children should be attributable to Spiesman Jr.
The Tax Court in its opinion stated, and thus found, that "The full value of the machines was shown as included in the capital account of the petitioner." This is equivalent of a finding that none of the value of the machines were shown in the capital account of Spiesman Sr.
We conclude that the Tax Court decision was correct and the judgment should be and is affirmed.