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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Joyce Lisa CUMMINGS, Petitioner-Appellant, v. Richard L. DUGGER and Robert A. Butterworth, Respondents-Appellees.
No. 87-3787.
United States Court of Appeals, Eleventh Circuit.
Jan. 12, 1989.
Jake Arbes, Atlanta, Ga., for petitioner-appellant.
Robert Butterworth, Atty. Gen., Sean Daly, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.
Before JOHNSON and CLARK, Circuit Judges, and ZLOCH , District Judge.
Honorable William J. Zloch, U.S. District Judge for the Southern District of Florida, sitting by designation.
JOHNSON, Circuit Judge:
Joyce Lisa Cummings seeks federal ha-beas corpus relief pursuant to 28 U.S.C.A. § 2254. We affirm the district court’s denial of relief.
I.
Cummings was employed by John Bradford at an optical laboratory that he owned. While working at the lab, she became friendly with his wife, Priscilla Bradford, and Janice Gould. Cummings and Gould became aware that Priscilla was being physically abused by her husband John and agreed to help Priscilla plan his murder. Although a number of plans were considered, the women ultimately decided to help Priscilla attack John when he returned home for dinner one night. They then agreed to help Priscilla inflict bruises on herself so that she could claim she acted in self-defense.
On the evening of March 28, 1980, Cummings, Gould, Priscilla and Eden Bradford (Priscilla’s 14 year old daughter by a previous marriage) met at the Bradford’s house to execute the plan. The four women waited for John to arrive, attacked him with various kitchen implements, and beat him to death. Priscilla then called the police as planned, claiming she had acted in self-defense. All four women were eventually arrested and charged with the murder of John Bradford. Because there was little evidence that Cummings had actually beaten John, the state relied on the theory of vicarious liability to hold Cummings responsible with the others for the killing.
From the time of the murder through Cummings’ trial, the case, which was dubbed the “Skillet Slaying” and the “Frying Pan Murder” by the news media, generated extensive pretrial publicity. The newspaper and television coverage included details of the murder, alleged statements made to cellmates by the four women, an alleged plot to kill a state witness, and confessions made by the other defendants.
In light of this publicity, Cummings moved for a change of venue from Titus-ville in Brevard County, Florida, the place of the murder. The motion was granted and the trial was moved to Sanford in Seminole County, Florida, approximately forty miles inland from Titusville.
When the pretrial publicity continued in Sanford, Cummings moved for a second change of venue. The state trial judge reserved ruling on this motion pending initial voir dire of prospective jurors. The trial judge then questioned forty-one potential jurors individually, and dismissed three. Of the remaining thirty-eight jurors, thirty were familiar with the case. The judge then denied the motion for change of venue and allowed the attorneys to proceed with collective voir dire. Of the twelve jurors who were finally chosen, eleven had been exposed to varying degrees of pretrial publicity.
The jury found Cummings guilty of first degree murder and conspiracy to commit first degree murder. She was sentenced to life imprisonment with a minimum mandatory sentence of twenty five years and to a consecutive fifteen year sentence for conspiracy. On direct appeal, she challenged the denial of her motion for change of venue. The state appellate court affirmed her conviction. Subsequently, the state appellate court denied her state habeas petition, which was based on an ineffective assistance of counsel claim.
She then filed a federal habeas petition, challenging the denial of her second motion for change of venue in federal district court. The district court denied her petition. On appeal, she makes two claims, both based on the effect of pretrial publicity on the jury venire. She claims that her Sixth Amendment right to an impartial jury and her Fourteenth Amendment right to due process were violated in two ways: by the way the trial judge conducted voir dire and by the denial of her second change of venue motion. We will address these claims in turn.
II.
Cummings’ first claim is that the judge conducted constitutionally inadequate voir dire with the result that he was unable to detect the potential prejudice of the individual jurors arising from the pretrial publicity. Jordan v. Lippman, 763 F.2d 1265, 1275 (11th Cir.1985) (“[Rjelief is required where there is a significant possibility of prejudice plus inadequate voir dire to unearth such potential prejudice in the jury pool.”). As a threshold matter, the state challenges this claim as procedurally barred because it alleges Cummings did not specifically raise this claim in any previous state court proceedings. We find no procedural default as to this claim.
The procedural default doctrine ensures that “state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding.” Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). To avoid procedural default, the defendant must have presented in his state appeal more than just the facts necessary to support his federal constitutional claim: “The substance of a federal habeas corpus claim must first be presented to the state courts.” Id. at 278, 92 S.Ct. at 513-14 (emphasis added); see Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (quoting Picard). However, the Supreme Court has also indicated that courts should exercise flexibility in determining whether defendants have met this requirement. Picard, 404 U.S. at 278, 92 S.Ct. at 513-14; see Mattox v. Dugger, 839 F.2d 1523, 1524 (11th Cir.), cert. denied, — U.S. -, 109 S.Ct. 92, 102 L.Ed.2d 68 (1988) (defendant need not “[label] his original claims as ‘federal’ constitutional ones”); Osborne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (specific words not necessary so long as state court has “adequate opportunity to consider a party’s objection”).
In this case, Cummings argued on direct appeal in state court that the trial court abused its discretion in denying her motion for change of venue. In her state appellate brief, Cummings specifically objected to the trial court’s denial of her motion for individual voir dire in light of the prejudicial nature of the pretrial publicity and the effect it might have had on the venire. Although Cummings did not specifically state her federal constitutional claims, she repeatedly cited Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In Murphy, the Supreme Court discussed a defendant’s claim that he had been denied due process because he was tried by an allegedly partial jury. Although Murphy focused on what the jurors said during voir dire rather than how it was conducted, the Supreme Court was concerned with the effect of pretrial publicity on the ability of the jury to remain impartial during the trial and with the potential violation of the defendant’s constitutional rights in the choice of jurors. Having presented her claim in this way, she has provided the state courts with an opportunity to review the manner in which the voir dire was conducted as well as the substantive responses given by individual venire persons. Cf. Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984) (issue “obliquely stated” on direct appeal not defaulted if state court was alerted to constitutional issue).
Having ascertained that the claim is not procedurally barred, we turn to the merits. The conduct of voir dire is a matter entrusted to the broad discretion of the trial judge. United States v. Tegzes, 715 F.2d 505, 507 (11th Cir.1983); United States v. Holman, 680 F.2d 1340, 1344 (11th Cir.1982); see also United States v. Gerald, 624 F.2d 1291, 1296 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981) (noting that Fed.R.Crim.P. 24(a) has been interpreted to give trial court broad discretion in deciding method of jury voir dire). “The standard for evaluating the district court’s exercise of its discretion is whether the procedure used for testing juror impartiality created ‘a reasonable assurance that prejudice of the jurors would be discovered if present.’ ” Tegzes, 715 F.2d at 507 (citing Holman, 680 F.2d at 1344); Gerald, 624 F.2d at 1296.
However, the discretion afforded the trial judge to conduct voir dire as he sees fit must be bounded by protection of the defendant’s constitutional rights, especially in a situation of extensive pretrial publicity. United States v. Gerald, 624 F.2d at 1295. For example, in United States v. Davis, 583 F.2d 190 (5th Cir.1978), the former Fifth Circuit reversed the conviction of a defendant who had been the subject of extensive pretrial publicity. The Court held that, in a case where all the jurors had been exposed to some pretrial publicity, simply asking members of the jury venire to indicate by a show of hands whether the publicity would impair their ability to render an impartial decision did not adequately protect the defendant’s constitutional rights. Id. at 196.
The preferred approach in such cases, as discussed in Davis, is to conduct individual examination of the jurors. Id. at 196-98 (citing ABA Standards Relating to Fair Trial and Free Press, which recommends individual voir dire in these cases); Coleman v. Kemp, 778 F.2d at 1542 (citing ABA Standards with approval); Calley v. Callaway, 519 F.2d 184, 208-09 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976) (juror statements as to impartiality made more credible by conduct of individual voir dire). Individual voir dire allows the trial court to probe the effect of any adverse publicity on the juror and insulates the jurors from one another’s prejudicial comments. However, the Davis court did not go so far as to require individual voir dire in cases of pretrial publicity: “Though separate examination of jurors is sometimes preferable, it is not necessarily required. We recognize the district court’s need for flexibility in interrogating jurors as to possible prejudice.” Davis, 583 F.2d at 197 (footnotes omitted).
Recently, this Court cited Davis with approval in addressing the issue of allegedly inadequate voir dire. In Jordan, extensive publicity surrounded a civil rights march on the weekend prior to the start of the trial in which a black inmate was charged in connection with a prison riot. After finding that there was a significant possibility of racial prejudice arising from the coverage of the protest march, this Court concluded the trial judge had abused his discretion by refusing to inquire as to whether each juror had been exposed to the publicity prior to the start of the trial. The Court noted that, in situations of potential prejudice, the jurors must be questioned individually about whether they have been exposed to pretrial publicity and to what degree it has affected their decisionmaking ability. Jordan, 768 F.2d at 1281; accord United States v. Herring, 568 F.2d 1099, 1106 (5th Cir.1978).
In the case at bar, the trial judge refused to grant Cummings’ motion for individual voir dire, but he did agree to screen the jurors individually before the collective questioning of the venire was conducted. Each of the forty-one prospective jurors was brought into the courtroom and asked two questions, First, after briefly describing the case, the judge asked whether the juror had “heard anything about this particular case or read about it in the newspaper.” He then asked whether the juror could “base any verdict you render solely on [the testimony presented in court] without any outside influence from anything you might have read in the newspaper or seen on TV.” When he received tentative answers, he continued asking questions about the juror’s ability to remain impartial. The judge excused three of the forty-one jurors for cause. Of the remaining group, thirty had some exposure to pretrial publicity, although in most eases the exposure was quite minor.
Given these results from his initial screening, the judge denied Cummings’ second motion for change of venue. He then allowed both the prosecutor and defense counsel to question a panel of twelve jurors collectively and to exercise peremptory challenges. Cummings alleges that, during this phase of the voir dire, potential jurors who had been influenced by the pretrial publicity were able to “infect” the rest of the venire by exposing them to prejudicial information gleaned from the media. However, as Cummings conceded at oral argument, the only information revealed by the jurors who had been exposed to the publicity was that one of the other women charged had pled guilty and that Cummings had been present at the scene of the crime. The members of the venire who were subject to questioning were asked twice, once by the prosecutor and once by defense counsel, whether they could reach a verdict based solely on what was presented in court. The jurors thus were reminded of the importance of impartiality and were given an opportunity to discuss any doubts they had about their ability to remain impartial. In light of these facts, we cannot conclude that the trial judge so abused his discretion in limiting the individual voir dire as to render the process of jury selection constitutionally deficient.
III.
Cummings next claims that the trial court erred in denying her second change of venue motion. The standards governing change of venue “derive from the Fourteenth Amendment’s due process clause, which safeguards a defendant’s Sixth Amendment right to be tried by ‘a panel of impartial, indifferent jurors.’ ” Coleman v. Kemp, 778 F.2d at 1489 (citing Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961)); Coleman v. Zant, 708 F.2d 541, 544 (11th Cir.1983). If pretrial publicity is so prejudicial and inflammatory as to preclude the selection of an impartial jury, due process requires a change of venue or a continuance. Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963); Coleman v. Zant, 708 F.2d at 544. Cummings is essentially making a due process claim that pretrial publicity caused her trial to be fundamentally unfair. Murphy, 421 U.S. at 799, 95 S.Ct. at 2035-36.
This Court has articulated two standards for evaluating change of venue requests based on allegations of pretrial publicity—actual prejudice and presumed prejudice. In Coleman v. Zant, the Court described the standards in this way:
To find the existence of actual prejudice, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Irvin v. Dowd, 366 U.S. at 727, 81 S.Ct. at 1645. Second, these jurors, it must be determined, could not have laid aside these preformed opinions and “render[ed] a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643,
Prejudice is presumed from pretrial publicity when (1) pretrial publicity is sufficiently prejudicial and inflammatory, and (2) the prejudicial pretrial publicity saturated the community where the trials were held. Rideau v. Louisiana, 373 U.S. at 726-27, 83 S.Ct. at 1419-20; Murphy v. Florida, 421 U.S. at 798-99, 95 S.Ct. at 2035-36.
708 F.2d at 544-45. The defendant bears the burden of demonstrating either type of prejudice. Murphy, 421 U.S. at 803, 95 S.Ct. at 2039; Coleman v. Zant, 708 F.2d at 545. When an appellant claims actual prejudice, the trial court’s finding of impartiality should be overturned only if the reviewing court finds “manifest error.” Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2888-89, 81 L.Ed.2d 847 (1984). Although the Supreme Court has not directly addressed the standard of review for a claim of presumed prejudice, this Circuit has treated the standard as a mixed question of fact and law. Coleman v. Kemp, 778 F.2d at 1537 & n. 17.
A. Actual Prejudice
The standard established bv the Supreme Court is not that a juror be “totally ignorant of the facts and issues involved,” but that he be able to “lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin, 366 U.S. at 722-23, 81 S.Ct. at 1642-43. An individual juror’s statement that he or she can remain impartial and put aside any prior opinions must be examined in light of the entire process of voir dire. Patton v. Yount, 467 U.S. at 1031, 104 S.Ct. at 2888-89; compare Irvin, 366 U.S. at 727-28, 81 S.Ct. at 1645-46 (in situation where negative publicity permeated community, eight of twelve jurors expressed opinion that defendant was guilty, and some admitted it would take evidence to overcome that opinion, then statements that jurors would be fair and impartial to defendant were not determinative) with Murphy, 421 U.S. at 802-03, 95 S.Ct. at 2038-39 (“indicia of impartiality might be disregarded in a case where the general atmosphere in the community or courtroom is sufficiently inflammatory,” but not when pretrial publicity is limited and largely factual in nature and fewer than half prospective jurors had opinion as to defendant’s guilt). However, deference must be paid to the trial judge’s decision regarding the partiality of an individual juror because of the credibility determination involved. See Patton, 467 U.S. at 1031 n. 7, 104 S.Ct. at 2888-89 n. 7 (presumption of correctness in federal ha-beas proceedings for state court factual findings underlies reviewing court’s “manifest error” standard of review).
Of the twelve jurors who r.endered the verdict in this case, eleven had been exposed to pretrial publicity to some degree. Cummings focuses on jurors Cooper and Sapp, and cites their voir dire testimony as evidence of their alleged impartiality. Under Irvin, this evidence must demonstraté that the jurors in question entertained an opinion before the trial that Cummings was guilty and that these jurors could not have laid these opinions aside to render a verdict based solely on the evidence presented.
Juror Cooper, while admitting that she was not sure she could completely clear her mind of the media coverage she had been exposed to, stated that she had formed no opinion as to Cummings’ guilt and that she was ready to assume Cummings was innocent until proven guilty. Juror Sapp, after initially stating that he could render a verdict without being influenced by the pri- or publicity he had seen, later admitted that he had formed an opinion that Cummings was guilty. However, he also stated that he could put this opinion out of his mind and decide Cummings’ guilt or innocence based on the evidence presented. Given our review of the record, we cannot conclude that the trial court committed manifest error.
B. Presumed Prejudice
The presumed prejudice standard involves two prongs — the pretrial publicity must be sufficiently prejudicial and inflammatory and the publicity must have saturated the community where the trial was held. Coleman v. Zant, 708 F.2d at 544. Relief is granted under this standard only in extreme situations. Coleman v. Kemp, 778 F.2d at 1537.
After reviewing the news articles, affidavits and video cassettes filed in this case, and after conducting an evidentiary hearing on the issue, the district court found that Cummings had failed to introduce enough evidence for the court to presume prejudice from the pretrial publicity. The court found that the reports contained primarily factual accounts of the circumstances surrounding Bradford’s death and that none of the publicity was calculated to provoke hostility. See Murphy, 421 U.S. at 802, 95 S.Ct. at 2038-39 (news articles did not create inflamed community atmosphere when largely factual in nature). The evidence presented to the district court included eleven articles from the Sentinel Star, the local Sanford County paper. These articles had been published over a three month period and only some of them specifically refer to Cummings by name. Compare Rideau v. Louisiana, 373 U.S. at 726, 83 S.Ct. at 1419-20 (defendant’s televised confession seen by large part of community raises presumption of prejudice) and Coleman v. Kemp, 778 F.2d at 1538 (repetitious news coverage containing hostile bias against defendant created “overwhelming showing in the press of [defendant’s] guilt before his trial ever began”). We agree with the trial court that Cummings has failed to meet the extensive evidentiary showing required to warrant relief under the presumed prejudice standard.
IV.
We conclude that, although her challenge to the manner in which voir dire was conducted is not procedurally barred, Cummings has not shown that the trial judge conducted voir dire in such a manner that potential prejudice in the juror’s beliefs went undetected. Further, Cummings has not demonstrated actual or presumed prejudice that rendered the denial of her second change of venue motion a violation of her Sixth and Fourteenth Amendment rights to an impartial jury. We therefore AFFIRM the district court.
.Cummings was intimately involved with Gould and Priscilla in the planning and execution of earlier murder attempts against John. At one point, Priscilla loaned Cummings a rifle which Cummings planned to use on John. Later, Cummings plotted with Gould and Priscilla to place an overdose of drugs in John’s orange juice. Cummings purchased the drugs and helped prepare the orange juice that Priscilla then offered to John.
. Priscilla pled guilty to her husband’s murder. Eden was granted immunity in exchange for her testimony at Cummings’ trial.
. Eden heard Cummings encouraging the others but did not actually see Cummings inflict any blows.
. Cummings also filed motions for additional peremptory challenges, individual voir dire of prospective jurors, and sequestration of the jury. These motions were denied.
. Cummings also raised an ineffective assistance of counsel claim which she does not raise here.
. We note that the district court did address this claim, but it did so when addressing the change of venue motion and Cummings’ allegation of “presumed prejudice.” This Court has assumed, in a recent opinion, that voir dire, conducted in an effective manner, may be sufficient to rebut the presumption of prejudice arising from a community saturated with negative pretrial publicity. Coleman v. Kemp, 778 F.2d 1487, 1541 & n. 25 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). However, the district court did not find the community in which the trial was held saturated with negative publicity. Further, the court found the voir dire was sufficient to root out any partial members of the venire.
. Put another way, the state court was made aware that Cummings was challenging not only the impartiality of individual jurors as revealed in voir dire but also the effect the statements of individual jurors may have had on other potential jurors when the statements were made in a collective setting.
. It appears from the record that these questions were among those requested by defense counsel. Voir Dire Transcript at 17.
. Both parties agree that this claim was presented on direct appeal in state court and that it is not procedurally barred.
. The text of Cooper's voir dire testimony is as follows:
THE COURT: Have you read anything in the newspaper or saw [sic] anything on TV concerning this particular case?
MS. COOPER: Yes, sir.
THE COURT: All right. Can you disregard what you have seen on TV and read in the newspapers and base any verdict that you might render solely on the testimony as it is given to you in this case and that alone, or would you be influenced by anything you might have read outside the Courtroom?
MS. COOPER: I really don’t know if I could rule out all of it or not. It's possible, but I can’t give you a definite yes or no.
THE COURT: You understand that the Defendant, every criminal case is presumed innocent until their guilt is established by the evidence to the exclusion and beyond every reasonable doubt?
MS. COOPER: Right.
THE COURT: You think you have been so influenced by the newspaper or TV that you could not give the Defendant that presumption of innocence at this time?
MS. COOPER: I don't know. I have never been a juror before.
THE COURT: Well, I know most people ... you would be surprised, very few people have been jurors in the past. But you recognize what I am saying that the Defendant is presumed to be innocent, every person accused of a crime is presumed to be innocent?
MS. COOPER: Right.
THE COURT: And, you know, not to be tried in the newspaper. Newspapers report as they see them [sic] and things that they have heard and information they receive.
MS. COOPER: You can’t believe everything that you read.
THE COURT: Right. But do you think that you are, your reading the newspapers or watching TV has tainted that presumption of innocence at all?
MS. COOPER: Well, I really think they are innocent until proven guilty.
THE COURT: Well, that is the main thing.
MS. COOPER: I read in the newspaper, I cannot say they’re guilty from the paper.
THE COURT: Because that is the main thing we are looking for is people who will come up here, disregarding everything that has been in the newspaper and TV and rely solely on the evidence as it is presented to you in the case, because it’s the State’s duty to prove the Defendant guilty beyond a reasonable doubt according to the law the Court will instruct you at the close of the trial.
MS. COOPER: I will try to do that.
THE COURT: All right. Thank you.
Voir Dire Transcript at 37-39. Later, she was questioned by defense counsel:
MS. BICKERSTAFF: Ms. Cooper, there was a little pause when Mr. Robinson asked you about whether you felt you could put out of your mind everything you may have heard about this case before. Are you at all unsure on [sic] that?
MS. COOPER: I am not sure I can put it completely out of my mind, no.
MS. BICKERSTAFF: As a result of what you may have heard, have you formed any opinion with regard to the guilt or innocence of Joyce Cummings?
MS. COOPER: No.
MS. BICKERSTAFF: All right. Do you feel that you can follow the Judge’s instructions with regard to the applicable law in this case and that you can be fair to both sides in the case?
MS. COOPER: Yes.
MS. BICKERSTAFF: You feel you can do that despite what you may have learned or come across before you came today?
MS. COOPER: Yes.
Voir Dire Transcript at 219-20.
. Sapp answered the trial judge’s initial inquiries about his ability to be impartial in the affirmative. Voir Dire Transcript at 66-67.
. Sapp’s testimony when questioned by the defense counsel was as follows:
MS. BICKERSTAFF: If I recall, you don’t know very much about this case anyway.
MR. SAPP: Just what I heard and read in the paper and on TV.
MS. BICKERSTAFF: As a result of what you heard or read, did you form any type of opinion with regard to the guilt or innocence?
MR. SAPP: I just formed the opinion on what I heard and I heard, you know, what happened about the people and that was it.
MS. BICKERSTAFF: Could you tell me?
MR. SAPP: I assume they were guilty ... just about the wife hitting her husband with a frying pan and the other people helping her.
MS. BICKERSTAFF: When you say you assume they were guilty ...
MR. SAPP: Right, but the media by saying
MS. BICKERSTAFF: Do you, have you carried that assumption with you into the Courtroom today?
MR. SAPP: To a certain extent I have, yes. I have to say I have.
MS. BICKERSTAFF: Do you feel that Joyce Cummings might have some burden to overcome with regard to you and your feelings at this time?
MR. SAPP: No. I think I have an open mind. I could listen to the facts.
MS. BICKERSTAFF: Do you think you can completely put out of your mind anything you may have seen or read or heard prior to coming here today?
MR. SAPP: Yes.
MS. BICKERSTAFF: That you can deliberate on the guilt or innocence of Joyce Cummings based on what you hear here in the Courtroom and the law as Judge Woodson instructs you?
MR. SAPP: Yes.
MS. BICKERSTAFF: Do you have any reasons, sir, why it would be a hardship for you to sit in this jury?
MR. SAPP: No.
MS. BICKERSTAFF: All right. Thank you. Voir Dire Transcript at 258-59.
. The state argues that the district court improperly allowed Cummings to supplement the evidence actually presented to the trial court in support of the second motion for change of venue. The issue does not have to be addressed by this Court in light of the fact that, even with this supplemental evidence, Cummings is not able to meet the “presumed prejudice" burden.
. The court suggested that it was aware of other media coverage of the case not included in the submitted materials, but how extensive this coverage was is unclear. The court limited its consideration to the documents and tapes before it.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_fedlaw
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
SKEE-TRAINER, INC., and Stewart J. Leonard, Appellants, v. GARELICK MFG. CO., Appellee.
No. 18067.
United States Court of Appeals Eighth Circuit.
June 8, 1966.
Marcus B. Finnegan, of Finnegan & Henderson, Washington, D. C., Warren A. Sturm, of Carlsen, Carlsen & Sturm, Minneapolis, Minn., on the brief, for appellant.
Mark W. Gehan, C. H. Lauder, St. Paul, Minn., on the brief, for apellee.
Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and VAN PELT, District Judge.
VAN PELT, District Judge.
This is an action against Garelick Manufacturing Company (Garelick) for infringement of Patent No. 3,125,060 issued to plaintiff Stewart J. Leonard on March 17, 1964 and later assigned to plaintiff Skee-Trainer, Inc. Plaintiffs requested a permanent injunction enjoining defendant from infringing the patent in issue and treble damages for deliberate and willful infringement. The device in issue is an aid to people who are learning to water ski and is marketed under the name of “Skee-Trainer.” The trial court, finding the patent invalid for want of invention, entered judgment for the defendant. From that judgment, plaintiffs have appealed. Jurisdiction is established by virtue of 35 U.S.C.A. § 281 and 28 U.S.C.A. § 1338.
The issue before the court concerns the validity of the trial court’s interpretation of the words “prior art” found in 35 U.S.C.A. § 103 which provides:
“A patent may not be obtained * * * if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made-to a person having ordinary skill in the art to which said subject matter pertains.”
After rejecting two possible interpretations, the trial court adopted the following:
“3. Prior art, with respect to any simple mechanical device utilizing universally known principles, may be thought to refer to the field of mechanics itself. Regardless of the field in which he works, every prospective inventor is charged with knowledge of basic mechanical principles. If, by whatever criteria of invention may be invoked, courts decide that his innovation is too ‘obvious’, then it will not be patentable even though nothing really like it has existed before. More specifically, although the simplicity of a mechanical innovation will not automatically render it unpatentable, simplicity is itself strong evidence that ‘invention’ is lacking.”
Relying on Caldwell v. Kirk Mfg. Co., 269 F.2d 506 (8th Cir. 1959), cert. denied, 361 U.S. 915, 80 S.Ct. 260, 4 L.Ed.2d 185 (1959), the court held the patent to be invalid for want of invention.
The task for this court is to ascertain whether the trial court applied the proper interpretation of the words “prior art” in determining the validity of the patent and, if the interpretation is valid, to decide whether the patent satisfies the requirements for patentability. There is no issue as to whether the patent satisfies the elements of “novelty” and “utility” enumerated in 35 U.S.C.A. §§ 101, 102. If the trial court applied the improper standard, the judgment must be reversed. Caldwell v. Kirk Mfg. Co., supra at 508-509.
Prior to the argument in this case the United States Supreme Court accepted for argument a group of patent cases, including three from this circuit. These have since been argued and decided. In Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), an Eighth Circuit case, the court construed section 103, supra, and explained its effect upon patentability of an invention.
Arguments were also had in two other cases from this Circuit, the Cook Chemical cases [Calmar, Inc. v. Cook Chemical Co.], reported at D.C., 220 F.Supp. 414 and 336 F.2d 110. They were decided at the same time as Graham, (See 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545). The Cook Chemical cases were reversed. Graham was affirmed. It was argued in these cases “that the first sentence of § 103 was intended to sweep away judicial precedehts and to lower the level of patentability” (p. 16, 86 S.Ct. p. 693).
The Court concluded that Congress by the revision did not intend “to change the general level of patentable invention.” (p. 17, 86 S.Ct. p. 693) and that
“[T]he 1952 Act was intended to codify judicial precedents embracing the principle long ago announced by [13 L.Ed. 683] this Court in Hotchkiss v. Greenwood, 11 How. 248 (1850), and that, while the clear language of § 103 places emphasis on an inquiry into obviousness, the general level of innovation necessary to sustain patentability remains the same.” (3-4, 86 S.Ct. 686)
The Court went on to say:
“Approached in this light, the § 103 additional condition, when followed realistically, will permit a more practical test of patentability. The emphasis on non-obviousness is one of inquiry, not quality, and, as such, comports with the constitutional strictures.” (17, 86 S.Ct. 693)
It is thus clear that Hotchkiss still controls. The net result of the decision is that the standard of invention, as enunciated over 100 years ago, remains the same and has not been altered either by intervening judicial interpretations or the congressional enactment of Section 103. The rule in Hotchkiss, in essence, is that a patentable invention must evidence more ingenuity and skill than that possessed by an ordinary mechanic acquainted with the business.
One striking aspect of the decision is the Court’s total rejection of the suggestion that the Court, prior to Graham, had been imposing supposedly stricter standards of patentability.
“We have been urged to find in § 103 a relaxed standard, supposedly a congressional reaction to the ‘increased standard’ applied by this Court in its decisions over the last 20 or 30 years. The standard has remained invariable in this Court.” (19, 86 S.Ct. 694) (Emphasis added.)
The Court in a note explained the “flash of genius” phrase used in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58, saying it “was but a rhetorical embellishment of language going back to 1833.”
“Rather than a more exacting standard, Cuno merely rhetorically restated the requirement that the subject matter sought to be patented must be beyond the skill of the calling. It was the device, not the invention, that had to reveal the ‘flash of creative genius.’ ” (383 U.S. 15, 16, 86 S.Ct. 693)
Although the Court was unequivocal in stating that the standard as to patentability “has remained invariable in this Court” it used this language following the quoted words:
“Technology, however, has advanced— and with remarkable rapidity in the last 50 years. Moreover, the ambit of applicable art in given fields of science has widened by disciplines unheard of a half-century ago. It is but an evenhanded application to require those persons granted the benefit of a patent monopoly be charged with an awareness of these changed conditions. The same is true of the less technical, but still useful arts. He who seeks to build a better mousetrap today has a long path to tread before reaching the Patent Office.” (19, 86 S.Ct. 695)
The effect of Graham has recently been considered by this court in American Infra-Red Radiant Co., Inc. v. Lambert Industries, Inc., Cases, 8 Cir., 360 F.2d 977, decided May 20, 1966, and Kell-Dot Industries, Inc. v. Graves, 8 Cir., 361 F.2d 25, decided May 18, 1966. In Lambert it was stated:
“The Court made it clear that the statute merely codified the decisional law and the necessary level of innovation previously demanded by the courts had not been changed by the statute.” 360 of 984 F.2d.
We now conclude that Graham does not invalidate the meaning the trial court gave to the words “prior art”. In fact the trial court’s statement “If, by whatever criteria of invention may be invoked, courts decide that his innovation is too ‘obvious,’ then it will not be patentable even though nothing really like it has existed before,” is now supported by the teachings of Graham. We conclude, as did the trial court, that “prior art” may include not only earlier devices and publications but also similar devices whether or not in related areas to the patented device and with respect to a simple mechanical device utilizing universally known principles permits referring to the field of mechanics itself.
Graham teaches:
“Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy.” (17-18, 86 S.Ct. 694)
We must next determine whether by the standards of Graham the trial court reached a proper conclusion.
BACKGROUND OF THE SKEETRAINER:
As previously stated, the device relates to a method of aiding beginning water skiers to learn to water ski quickly and efficiently. Allegedly, it overcomes the problem of teaching beginners to maintain a proper skiing position. Many methods have previously been employed to achieve this objective; such as attachments- to the skis, special launching platforms, poles suspended from the side of the tow boat, and special water skiing schools.
Plaintiff Leonard, a champion skier, embarked on a project to build a simple, cheap, and safe device. His efforts culminated in the construction of the “SkeeTrainer” which achieved commercial success.
To describe the structure and the use of the device, the court adopts the language utilized by the trial court.
“The Skee-Trainer itself is very simple. It consists of two wooden bars placed across the open end of a U-shaped piece of aluminum tubing. One of the bars is at the very tip of the forward end of the Trainer, the other is a few inches back and parallel to the first. The rear bar has a loop of metal fixed in the center to which a tow rope may be attached. The trainer is twenty-two inches long and its width is about twenty-one inches in the front, tapering to about eighteen inches at the rear.
“In order to use the Trainer, a skier affixes a tow rope to the metal loop, puts on his water skis and then places the front tip of his skis between the wooden bars. By pressing downward, on the closed end of the U-shaped piece of tubing, he can clamp his skis firmly between the two wooden bars. The dimensions of the Trainer are such that, when the skis are clamped, they will automatically be spaced and directed properly for water skiing. The skier will also be held in the crouched position needed for starting.
“As the skier begins to be pulled through the water, he gradually releases the, downward pressure on the handle of the Trainer. This reduces the clamping pressure of the wooden bar and the Trainer slips smoothly off the skis and merely functions as a handle on the tow rope.
“In mechanical terms, the SkeeTrainer is a lever arm which transmits force to two parallel bars used as a friction clamp.”
PRIOR ART:
Without discussing the prior art in the use of the principles of friction and leverage, it is necessary to examine devices similar to the Trainer in use or structure. At trial, two water ski aids previously patented were introduced into evidence: No. 2,938,220 for a “Water Ski Attachment” issued to R. G. Puckett, and No. 2,946,305 for a “Water Ski Towing Device” issued to T. G. Hill. Neither device, however, resembles the Skee-Trainer as each require a permanent or semi-permanent attachment to the skis.
Other devices similar to the Trainer were introduced into evidence. None of them, as found by the trial court, resemble “the Skee-Trainer or anticipate any of its basic features.”
Despite the above conclusions, this court believes, and so holds, that the “Trainer” could have been developed and constructed by an individual with knowledge and skill in the field of mechanics.
INVALIDITY OF THE PATENT:
Although the Trainer- is simple in structure, the court is required not to equate simplicity with obviousness. However, an invention, although new in the sense that nothing like it has previously existed, may still not be patentable if the difference between the new thing and what was known before is not sufficiently great to warrant a patent.
Examination of the entire record convinces this court that the construction of the “Skee-Trainer” involved only the application of mechanical ability. While the device may perform a functional use by aiding beginning skiers and although nothing comparable to it has previously been constructed, the court concludes that the device is obvious to a person having ordinary skill in the art. Congress did not authorize or tend to authorize the issuance of patents as a reward for mechanical skill.
Thus, the trial court’s judgment is affirmed in all respects.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
MONMOUTH MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Hospital Professional and Allied Employees of New Jersey, Intervenor.
No. 78-1832.
United States Court of Appeals, Third Circuit.
Argued March 22, 1979.
Decided Aug. 20, 1979.
Francis X. Dee (argued), Edward F. Ryan, Laurence Reich, Carpenter, Bennett & Morrissey, Newark, N. J., for petitioner.
Vivian A. Miller (argued), Kenneth B. Hipp, John S. Irving, John E. Higgins, Jr., Robert E. Allen, Elliott Moore, Washington, D. C., for respondent.
Alfred G. Osterweil (argued), Osterweil, Wind & Loccke, Edgewater, N. J., for inter-venor.
Before GIBBONS and HUNTER, Circuit Judges, and MEANOR, District Judge.
Honorable H. Curtis Meanor, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
I.
This case is before the Court on a petition by Monmouth Medical Center (the Hospital) to review, and a cross-application of the National Labor Relations Board (the Board) to enforce, an order issued by the Board against the Hospital. The order directs the Hospital to bargain collectively with the Hospital Professionals and Allied Employees of New Jersey (the Union). It is predicated on the Board’s decision that the Hospital’s refusal to bargain with the Union constituted an unfair labor practice in violation of section 8(a)(1) and (5) of the National Labor Relations Act.
Whether the Hospital’s refusal to bargain was an unfair labor practice depends on whether the Union was properly certified by the Board as the collective bargaining representative of the Hospital’s employees. The Hospital alleged that the representation election which the Union won was flawed by improper pre-election conduct and that certification of the Union following such an election was therefore invalid. The Board rejected the Hospital’s objection at the initial representation proceeding and declined to reconsider it at the unfair labor practice hearing. We conclude that the Board’s certification decision was inconsistent with case law and with previous decisions of the Board itself and amounted to an abuse of discretion. Since the Union was not properly certified as the bargaining representative, the Hospital committed no unfair practice when it refused to bargain. The Hospital’s petition will be granted, the order will be denied enforcement, and the disputed election will be set aside.
II.
On June 16, 1977, the Board conducted a secret ballot election in a unit consisting of the Hospital’s full-time and regular part-time registered nurses and graduate nurses. Of approximately 320 eligible voters, 284 cast valid ballots. The Union won the election by a vote of 148 for the Union to 136 against the Union — an effective difference of six votes. The Hospital filed objections to the election, alleging inter alia, that the election should be set aside because the Union “misused and abused the National Labor Relations Board’s processes to secure a partisan advantage in that it represented to unit employees, directly and indirectly, that the... Board endorsed [the Union] in the election”. To support this objection, the Hospital submitted six pieces of literature which had been distributed by the Union during the pre-election campaign.
The first piece of literature, “Exhibit A”, is an official Board-published election pamphlet, entitled “Your Government Conducts an Election”, to which the message “Vote Yes June 16 MMC Auditorium” has been added by hand. At least ten of these altered documents were distributed to voters in May, 1977, by the co-chairperson of the Union’s local steering committee.
The second piece of literature, “Exhibit B”, was mailed to unit employees on or about June 9, 1977. It states, in part:
. On June 13th, there will be a hearing at the National Labor Relations Board regarding the Unfair Labor Practices charged against the Hospital by members of your Steering Committee. The NLRB conducts such hearings only after investigation and rendering merit to such charges. [Emphasis added.] The [Union] has not nor could we be, charged with violating any standard of conduct or representation set to preserve the rights of employees. This hearing proves the Hospital cannot make such a claim. If Mr. Pilla attempted to file such a charge he would realize that he does not stand a chance in a formal hearing as the daily mutilation of the facts would not stand' up as credible evidence at the Labor Board.
Prior to the distribution of Exhibit B, on March 22, 1977, the Union had mailed a letter, “Exhibit C”, which reads in pertinent part:
. If any misguided friend of the administration, probably unaware that they are putting themselves in criminal jeopardy, threaten to take any negative action against you whatsoever for joining or showing interest in a union, that person has violated a federal law. (Emphasis added)
******
WHAT CAN HAPPEN TO THOSE WHO COMMIT AN UNFAIR LABOR PRACTICE?
The law provides that those who commit such violations of the Labor Act can be fined up to $5,000.00 and possibly imprisoned up to one year, or both.
At about the same time that Exhibit B was mailed, the Union mailed another leaflet, “Exhibit D”, which states in part:
Something to think about: The attorneys and agent of the National Labor Relations Board, to whom the hospital and the employees are subject to regarding collective bargaining, ARE UNIONIZED themselves. These people, who are privy to more information than anyone else regarding unions have chosen to unionize years ago. (emphasis in original).
When the experts have chosen this particular method, can it really be the wrong one?
Vote “Yes”
June 16th.
In early and mid-May, the Union mailed two additional leaflets. The first leaflet, “Exhibit E” states in pertinent part:
It is easier for the administrations anti-union campaign, financed with tax deductible hospital funds, to start rumors and spread half-truths than it is for us to send out letters correcting the intentional misinformation many people are being given. WE have nothing to gain by lying to you. When something you hear from the anti-union people contradicts what union organizers have told you, there is any easy way to find out who is telling the truth. Just call the Officer of the Day at the National Labor Relations Board at 645 — 2100. WE have nothing to hide.
The second leaflet, “Exhibit F”, which was mailed within the same time period and context as Exhibit E, but to employees voting in an election unit not at issue here, states in pertinent part:
If you doubt in any way information given you by the administration or by a representative of the union, we urge you to call the National Labor Relations Board at 645-2100 to verify what you’ve been told.
The Regional Director of the NLRB conducted an administrative investigation into the Hospital’s objections. In his Report on Objections, he concluded that Exhibits A and B were not objectionable, but that Exhibits C, D, E, and F were. Accordingly, he recommended that the election be set aside and that a new election be directed. Both the Hospital and the Union filed exceptions to the Regional Director’s report. The Board delegated its authority to hear the exceptions to a three member panel. The panel, in a 2 — 1 decision, overruled the Hospital’s objections, effectively reversing the Regional Director, and certified the Union as the exclusive bargaining representative of the Hospital’s registered and graduate nurses.
The Hospital refused to bargain with the Union, and an unfair labor practice hearing was commenced. The proceeding was conducted by the same panel which had overruled the Hospital’s objections to certification. At the hearing the Hospital defended its refusal to bargain by arguing that the Board had improperly overruled the Hospital’s objections to the election and that, therefore, the Board’s certification of the Union was invalid and could not provide the basis for finding an unlawful refusal to bargain. The panel rejected this argument, again by a 2-1 vote, and granted summary judgment in favor of the NLRB.
Since the Board’s Decision and Order is premised upon its certification of the June 16,1977 election, we must consider the validity of the Board’s certification of the representation election. We are mindful that the Board has “wide discretion” in establishing the procedure and safeguards for conducting representation elections, NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). Nevertheless, the Board’s decision must be reasonably consistent with its previous decisions. In Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir. 1976) we observed:
In articulating the “basis for its order”, the Board is free to refer “to other decisions or its general policies laid down in its rules and its annual reports.” [NLRv. Metropolitan Life Ins. Co., 380 U.S. 438, 443 n.6, [85 S.Ct. 1061, 13 L.Ed.2d 951] (1965)]. However, where the Board has reached different conclusions in prior cases, it is essential that the “reasons for the decisions in and distinctions among these cases” be set forth to dispel any appearance of arbitrariness. [Id. at 442, [95 S.Ct. 1061].
Id. at 357. Accord, NLRB v. Saint Francis College, 562 F.2d 246, 252 (3d Cir. 1977); St. Vincent’s Hospital v. NLRB, 567 F.2d 588, 590 (3d Cir. 1977); NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir. 1979) (“In exercising the discretion entrusted it in representation matters, the Board must faithfully adhere to the policies and procedures previously announced in its rules and decisions”). In reviewing a Board decision, we may not “abdicate” our responsibility to assure “that the Board keeps within reasonable grounds”. Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).
III.
The gravamen of the Hospital’s complaint is that the literature mailed, distributed, and posted by the Union misrepresented the role of the Board in conducting representation elections and created the impression that the Board favored the Union in the June 16 election. The Hospital’s position is that in thus misleading unit employees the Union compromised the statutory neutrality of the Board.
The Board assumes a supervisory role in representation elections. “It is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible to determine the uninhibited desires of the employees.” General Shoe Corp., 77 NLRB 124, 127 (1948). An important aspect of conducting a “fair and free election” has been to prevent the misrepresentation of material facts. In Hollywood Ceramics Company, Inc., 140 NLRB 221, 224 (1962), the Board announced its general policy against misrepresentations which might reasonably be expected to have an impact on the election. Numerous types of misrepresentations can have the impact, under Hollywood Ceramics, to warrant the setting aside of an election. But an area of particular sensitivity, which has given rise to a body of specialized and rigorous rules, is misrepresentation which creates the impression that the Board favors unions and unionization. Misrepresentation of this sort strikes at the heart of the election process, for the Board’s perceived neutrality is essential to the guarantee of a “fair and free” choice by employees.
The Board actively guards its neutral status and will intervene to prevent the improper involvement of the Board and its processes in representation elections. The Board “will not countenance the use of its name in a manner which gives the impression that the Agency has granted a party to an election its imprimatur or support.” GAF Corp., 234 NLRB No. 182, slip op. at 4 (1978). “Especially does [the Board] believe that no participant in a Board election should be permitted to suggest either directly or indirectly to the voters that [the Board] endorses a particular choice.” Allied Electric Products, Inc., 109 NLRB 1270, 1272 (1954). If the successful party to an election has misused Board processes to its partisan advantage, the election will be set aside. Id.
The full Board’s most recent decision in the area of Board neutrality is GAF Corp., 234 NLRB No. 182 (1978), which was decided after the representation decision in this case but before the unfair labor practice hearing. In GAF the Board held that the union had interfered with the election when it mailed a leaflet which contained language similar to that on the Board’s election notice, even though the leaflet was entirely different from that used by the Board. “National Labor Relations Board an agency of the United States Government” appeared on the top right-hand corner of the leaflet. The top left-hand corner contained a rendering of the United Statés Capitol over which the words, “It’s the law” had been superimposed. The union had clearly identified itself as the author of the leaflet by placing its name, address and logogram on the bottom. The context of the leaflet revealed that it was election campaign propaganda. Yet, a majority of the Board held that the election should be set aside:
As composed, the leaflet at the very least creates an ambiguity in the mind of its reader as to the document’s originator. We have repeatedly held that the Board will not countenance the use of its name in a manner which gives the impression that the Agency has granted a party to an election its imprimatur or support. E. g., J. Ray McDermott & Co.,...; Rebmar, Inc....; Allied Electrical Products, Inc.... As we stated in Rebmar, our concern is not with the substance of the material added to a portion of a Board document, but with the possible impact such propaganda may have on the freedom of choice of the voter. The Board cannot lend its name and prestige to a use which has the tendency to mislead. (emphasis added)
Id., slip op. at 3 — 4.
GAF and the cases cited therein thus establish the test which is to be applied by the Board when deciding whether the Board’s neutrality has been compromised. We turn to a discussion of whether the Board abused its discretion in applying these principles to the facts of the instant case.
IV.
Exhibit A is a sample of an official Board document which has been altered by the addition of a hand-printed partisan message. The Board concluded that the partisan message was readily identifiable as emanating from the Union, and that, in any event, a subsequent mailing of identical unmarked documents cured whatever damage the altered document might have caused. This conclusion does not appear to be consistent with previous decisions of the Board. In United States Gypsum Company, 124 NLRB 1026 (1959) the Board set aside an election in which the sole objection was that the union had affixed a union button in the “yes” box of a reproduction of an official ballot. The ballots, which were mailed to employees, were clearly stamped “sample”, and were not in any other manner altered. In Silco, Inc., Atlas Division, 231 NLRB 110 (1977) the Board set aside an election where the employer distributed a hand-printed sample ballot with an arrow pointing to the “no” box. That the partisan message and the ballot itself were hand-printed did not “neutralize” or “justify” the document.
In Allied Electric Products, 109 NLRB 1270 (1954), the union distributed what purported to be a sample of the Board’s official ballot, but which had a partisan message appended. The Board concluded that:
The reproduction of a document that purports to be a copy of the Board’s official secret ballot, but which in fact is altered for campaign purposes, necessarily, at the very least, must tend to suggest that the material appearing thereon bears [the Board’s] approval. As there are many legitimate methods available to parties for disseminating campaign propaganda which clearly do not entail an apparent involvement of the Board or its processes, we believe it is unnecessary to permit unlimited freedom to partisans in election cases to reproduce official Board documents for campaign propaganda purposes. (emphasis added).
Id. at 1272. In Rebmar, Inc., 173 NLRB 1434 (1968), the Board applied the Allied Products rule to a Board document which was not a sample ballot. The union had distributed a handbill which in part consisted of a portion of the Board’s election notice, but with a campaign message superimposed thereon. The Board set aside the election, stating:
Our concern is not with the substance of the material added to the Board’s official notice of election, but with the possible impact such a partisan message added to an official Board document, or copy thereof, might have on the freedom of choice of the voter.
* * * * * *
To duplicate a part of the Board’s official notice and then to add to it a personal partisan message that may be interpreted by the employee as an endorsement by the Board of one of the parties to the election, and thus have an impact on the employees’ freedom of choice, is, we think, an undesirable use of Board documents designed for another purpose. That the Union’s message in this case may be arguably innocuous and that there may have been at most a narrow or technical violation of the Allied Electric Products rule, is clearly irrelevant. Whether deliberate or unintentional, such action has a tendency to mislead, and we are of the opinion that the Board should guard against having its prestige put to such possible abuse. 173 NLRB at 1434. (emphasis added; citation omitted).
In GAF, which did not involve a sample ballot, the Board found that mere ambiguity was enough to make a document objectionable, even though the document was clearly identified as emanating from the union, and contained only some language similar to that used by the Board in its election notices.
Exhibit A is an actual Board document and the union source of the appended partisan message is nowhere admitted. It would seem that, as in Rebmar and GAF, application of the Allied Electric rule is warranted.
The Board, in its brief, attempts to distinguish Silco and Ünited States Gypsum as “merely” being cases in which alteration was found objectionable. In reliance on A. Brandt & Co., Inc., 199 NLRB 459 (1972), the Board concludes that, in Exhibit A, the “comments could not reasonably be construed by the employees as part of the [Board’s publication] but were readily identifiable by them as partisan comments emanating from the [Union] in relation to the election campaign”. We are not necessarily persuaded that this conclusion is consistent with the cases discussed above or represents a reasonable application of the principles those cases represent. Silco itself said that alterations have been found permissible only in “a few cases”. 231 NLRB at 110. The Board’s conclusion is especially questionable in light of the fact that the election was close, and considering the emphasis in GAF on mere “ambiguity” and “tendency to mislead”. However, speaking now only to Exhibit A, we need not decide if the Board abused its discretion in approving this particular campaign material, as the remaining exhibits by themselves are sufficient to make out reversible error.
Exhibit B contains a Union reference to an unfair labor practice hearing and the Union’s declaration that the Board had “render[ed] merit” to the charges. We read it in light of Exhibit C, which was sent out prior to the mailing of B and which incorrectly states that criminal penalties attach to those who have been found guilty of unfair practices. The Board excused Exhibit B as being only “inartfully drafted” and not a “substantial” or “patent” mis-characterization of a Board proceeding. Further, to the extent that there was a misleading inference that the Board had already found merit in the unfair practice charges the Board concluded that the harm was mitigated by the references in the letter to “hearings” and “charges”. The Board found Exhibit C permissible because it did not implicate the Board’s documents or proceedings and could not “reasonably have had an impact on the election.”
The exhibits do implicate a Board proceeding — the unfair labor practice hearing. Exhibit B refers directly to such proceedings and Exhibit C misrepresents the penalties which attach to being found guilty in such proceedings. Misrepresentation of the import of being charged in an unfair labor practice hearing was condemned in Formco, Inc., 233 NLRB No. 5 (1977). There the Board held that the Union interfered with an election when it distributed a letter stating that the employer was guilty of unfair labor practices. The Board reasoned that since only the Board could find an employer “guilty” the Union’s statement drew the Board into the election. In ONA Corp., 235 NLRB No. 85 (1978), the Union distributed excerpted copies of a complaint and notice, and added the disclaimer that a hearing had been set and the employer had denied all of the allegations. The Board ruled that the disclaimer did not cure the violation of Board neutrality, since the excerpted document still “gave the appearance” that the Board had already concluded that the employer was guilty. Citing Mallory Capacitor Co., 161 NLRB (1510 (1966), the Board held that the practice constituted “a misuse of [the Board’s] processes in that such reproduction was reasonably calculated to mislead employees into believing that the Board had judged the Employer to have violated Federal law, whereas such was not the case.” ONA Corp., 235 NLRB No. 85, slip op. at 3 (1978).
The Board’s second justification, that the exhibits could not reasonably have had an impact on the outcome of the election, is based in part on an inappropriate test. It is the “tendency” to mislead and the creation of “ambiguity” which GAF and Allied Products identify as the critical issues to be weighed. Doubts on the question of whether the misconduct actually had an impact should have been resolved against certification. As the court observed in NLRB v. Trancoa Chemical Corp., 303 F.2d 456, 461 (1st Cir. 1962), |t is enough for the election to be set aside because of misrepresentation if the employer shows that “it is sufficiently likely that it cannot be told whether [the employees] were or were not [misled].” To the extent that the Board was concluding that no reasonable person could find the references misleading, the Boárd was directly contradicting its Regional Director without either an apparent or explained reason. The Director had concluded that, “The investigation revealed that [the Union] made numerous references to the National Labor Relations Board and/or the Act not only in Exhibit C but also throughout many of its campaign leaflets including Exhibits B, D and E.. The unavoidable impact of such repeated references to the Board and the Act had to be the creation of the impression in the minds of the voters that [the Union] had a certain expertise regarding Board processes and the Act and knew what it was saying. Therefore, by misstating the law as discussed above, [the Union], whether unintentional or deliberate, misled the voters to believe that their Employer was possibly guilty of criminal conduct.” (Emphasis added)
The Board’s reliance on the reference to “hearings” are “charges” as mitigating the tendency to mislead is misplaced. In ONA, 235 NLRB No. 85 (1979), reference in the document to a “hearing” and to the employer’s denial of the allegations was insufficient to cure the misleading statements. It is not at all clear that mere reference to “hearings” and “charges” in the text of Exhibit B is sufficient to serve as an effective disclaimer, even were disclaimers to be allowed.
Exhibit D appears to strike at the heart of the Board’s neutrality by suggesting that the attorneys and agents of the Board favor unions. It goes so far as to say that the Board favors the “particular method” of unionization upon which the employees were voting. The Board held, however, that an organization could not be presumed to favor unions simply because its employees were represented by a union and that therefore, there could have been no effect on the Board’s neutrality. This completely misses the point. The question is not whether the unionization of its employees proves that the Board actually favors unions. Rather, the question is whether reference by the campaigning Union to unionization of the Board’s employees would create the impression in the minds of the voters that the Board favors unionization.
The Board also concluded that if anything, this exhibit was “campaign propaganda” that employees would recognize and evaluate. We see no reason, and the Board advances none, to conclude that the employees would recognize this particular literature as propaganda, or would look behind it and recognize that it misrepresented the Board’s role in conducting elections. This is especially so since the Board’s finding ignores the conclusion of the Regional Director that “[the Union] cloaked itself throughout the election campaign with the appearance of certain expertise as to the purposes and procedures of the National Labor Relations Act and the Board.” We do not see how the Board could hurdle from this finding, and the Director’s finding quoted at paragraph 21 supra, to the conclusion that the misrepresentations were readily identifiable as propaganda.
Exhibits E and F are letters which referred voters to the Board should they have any questions about the Union. The Regional Director found that these items a lone warranted the setting aside of the election. He concluded that the Union had impermis-sibly injected the Board into the campaign, and had suggested that the Board would respond to the employees’ questions in a manner favorable to the Union.
The conclusion that these letters constituted impermissible interference in the election appears to be compelled by GAF and by Formco, Inc. in which the Board held: “Our concern is with the protection of- our own processes, lest any voter be left with the impression that [the] Board is in favor of any party in an election. We are unwilling to condone any campaign statement which even implies such bias.” 233 NLRB No. 5, slip op. at 5-6 (emphasis added). In this case, the Board held that no document or proceeding was involved, and noted that referring employees’ questions to the Board was allowed. The Board went on to say that anyone calling the Officer of the Day would have been told that he doesn’t answer specific questions. Whether this is in fact the case is sheer speculation. In any event, the dissenting opinion from the Board’s decision in this case effectively questioned the reasonableness of the Board’s conclusion, observing that it was unlikely that employees would actually call the Board, so that the impermissible impression which had been created would remain. Moreover, the dissent noted that even if employees were to call and discover the Union’s misstatement, this would not “render innocuous or justify” the Union’s action. We agree. As the court noted in NLRB v. Trancoa Chemical Corp., 303 F.2d 456, 460 (1962), “We do not think the Union made a half-page statement that it expected would affect no one.”
Y.
For the foregoing reasons the Hospital’s petition for review will be granted and the Board’s cross-application for enforcement will be denied.^ The case will be remanded to the Board so that the disputed election may be set aside.
. The Board Decision and Order (Case No. 22-CA — 8222, reported at 236 NLRB No. 104), was issued pursuant to Section 10(c) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(c) (1976). Because the Board Decision and Order is based in part on findings made in a representation proceeding (Case No. 22-RC-7125, found at 234 NLRB No. 50), the record of that proceeding is also properly before us pursuant to § 9(d) of the Act, 29 U.S.C. § 159(d) (1976).
This Court has jurisdiction of the petitions for enforcement and review under Sections 10(e) and (f) of the Act, Id. §§ 160(e)-(f) (1976).
. Section 8(a)(1) and (5) of the Act provides that: “(a) It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.” 29 U.S.C. § 158(a)(1) & (5) (1976).
. A certification decision is not a final order within the meaning of Sections 10(e) and (f) of the Act, and hence is not reviewable by this Court. AFL v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). Accordingly, the Hospital must “follow [the] circuitous route” of refusing to bargain with the Union in order to precipitate an unfair labor practice proceeding. Aircraft Radio Corporation v. NLRB, 519 F.2d 590, 591 n.2 (3d Cir. 1975). The unfair labor practice decision is final, so the petition for review is properly before us.
. A factor here is the closeness of the election. In such cases, closer scrutiny of objections may be required of the Board. We bear in mind the admonition, nowhere adverted to in the Board’s Decision, that where “an election is extremely close, even minor misconduct cannot be summarily excused on the ground that it could not have influenced the election.” Henderson Trumbull Supply Corp. v. NLRB, 501 F.2d 1224, 1230 (2d Cir. 1974). NLRB v. Skelly Oil Co., 473 F.2d 1079, 1085 (8th Cir. 1973); NLRB v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir. 1972). See Aircraft Radio Corp. v. NLRB, 519 F.2d 590, 594 (3d Cir. 1975). Cf. NLRB v. Savair Manufacturing Company, 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973).
. We note further that in Metropolitan Life Insurance Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) the Supreme Court held that the substitution of appellate counsel’s “rationale or discretion” for that of the administrative agency would be “incompatible with the orderly function of the process of judicial review.'’ Id. at 444, 85 S.Ct. at 1064. Accordingly, “courts may not accept appellate counsel’s post hoc rationalizations for agency action.” Id. Some of the Board’s argument on appeal has been arguably impermissible under this standard. We have felt no need, however, to draw distinctions as the argument has been in any event unpersuasive. *
. See Aircraft Radio Corp. v. NLRB, 519 F.2d 590, 593 (3rd Cir. 1975) (“... [I]t is clear that the Board is committed to an active supervisory role over the pre-election conduct of the contestants.”) In NLRB v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), the Supreme Court recognized the Board’s responsibility for insuring “fair and free choice of bargaining representatives by employees”. It emphasized that:
The Board in its supervision of union elections may not sanction procedures that cast their weight for the choice of a union and against a nonunion shop or for a nonunion shop and against a union.
Id. at 280, 94 S.Ct. at 500, quoting NLRB v. Tower Company, 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946).
. The Board departed from Hollywood Ceramics in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977) when it announced that it would no longer set aside elections on the basis of misleading campaign statements. Id. at 1313. However, the Board has since returned to the stricter Hollywood Ceramics rule, in General Knit of California, Inc., 239 NLRB No. 101 (1978).
. Even under Shopping Kart, which reflects the Board’s most relaxed attitude toward misrepresentation generally, the Board promised that:
. Board intervention will continue to occur in instances where a party has engaged in such deceptive campaign practices as improperly involving the Board and its processes, or the use of forged document's which render the voters unable to recognize the propaganda for what it is. 228 NLRB at 1313 (emphasis added).
The Board’s concern with protecting its neutrality was emphasized in Formco, Inc., 233 NLRB No. 5 (1977). There, the Board held, “Shopping Kart did not change Board law with regard to improper use of the Board and its processes for election campaign purposes.” Id., slip op. at 3.
. GAF was decided by a 3-2 vote of the entire Board. The two dissenters in GAF constituted the majority in our case, it having been decided by a three-member panel. The opinion in the instant case relies on the same cases and the same analysis as did the dissent in GAF. In reference to that dissent, the GAF majority observed that the dissenters were “defin[ing] the words ‘Board document’ too narrowly and construpng] the principles of the cited cases too strictly.” GAF, slip op. at 4. Thus, it appears that the Board has already rejected the analysis upon which the case we are reviewing is based.
. The message was described by the Board as follows:
One side of the handbill was a reproduction of that portion of the election notice entitled, “Rights of Employees” complete with the Board’s seal and name. The only addition to this side of the handbill was a statement superimposed at the top to the effect that “The government protects your right to organize yourself in a union.” The reverse side of the handbill contains an explanation, couched in broad generalized language, of what a union is, how a union functions, and what a collective-bargaining contract contains. Nowhere does the handbill refer to or mention the [Union] by name. (173 NLRB at 1434).
. Even where the altered documents have not been official Board publications, the Board has relied on Rebmar to invalidate elections if the campaign literature appeared to compromise Board neutrality. In J. Ray McDermott & Co., Inc., 215 NLRB 570 (1974) (where the statement “A great day for the I.A.P.D. Keep the faith and vote ‘yes’ when you receive your ballot!!!” had been added at the bottom of. a Regional Director’s telegram) the Board concluded that “the employees could reasonably have believed that some or all of the partisan statements in the insert constituted an endorsement of the [Union] by the Regional Director.” (Id.)
. The facts of Allied Products are similar to ours. There, the union distributed a document which purported to be a sample copy of the Board’s official ballot, which had been altered to include a printed “X” in the yes box. At the bottom was printed, “Do not mark it any other way — mark ‘Yes’ box only.” 199 NLRB at 1271. The Board announced that it would “not permit the reproduction of any document purporting to be a copy of the Board’s official ballot, other than one completely unaltered in form and content,... and upon objection..., will set aside the results of any election in which the successful party has violated the rule.” Id. at 1272 (emphasis added).
. The Regional Director, although finding that Exhibits C, D, E and F were objectionable, excused Exhibits A and B. He too relied on Brandt. However, Brandt was explicitly distinguished from Rebmar when it was decided. We think that especially after GAF, which was decided after the Regional Director made his findings, and which rejected a dissent grounded partly on Brandt, Rebmar is the more appropriate rule. Further, we recall that in a close election, “even minor misconduct cannot be summarily excused.” See note 4 supra.
. In Guitón Industries — Femco Division, 240 NLRB No. 73 (1979), the union had distributed preelection leaflets which mischaracterized a settlement agreement and led to the implication that the employer had been found guilty of unfair labor practices. The Board applied the rule in Formco, Inc. and set aside the election. It made no difference that the leaflets did not expressly state that “the Board” had found a violation, for the leaflets were reasonably calculated to create that impression. The application of Formco, Inc. in Guitón cannot be squared with our case, unless the Board’s decision in our case represents an inconsistent application of the law, which applies to the misrepresentation of the import of unfair practice hearings.
. Of course, we do not conclude that the Regional Director’s
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_abusedis
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
COMMISSIONER OF INTERNAL REVENUE v. GROMAN.
No. 5779.
Circuit Court of Appeals, Seventh Circuit.
Nov. 30, 1936.
Rehearing Denied Jan. 7, 1937.
Robert H. Jackson, Asst. Atty. Gen., and Sewall Key and Joseph M. Jones, Sp. Assts. to the Atty. Gen., for petitioner.
Egbert Robertson and James C. Spence, both of Chicago, Ill. (Robertson, Crowe & Spence, of Chicago, Ill., of counsel), for respondent.
Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
EVANS, Circuit Judge.
The Commissioner appeals from a ruling of the Board which held that the stock under consideration, received by respondent, was not taxable to him as gain because received in the course of a reorganization.
The Facts. Respondent was a stockholder in the Metals Refining Company, an Indiana corporation. The Glidden Company is an Ohio corporation. On January 29, 1929, the Glidden Company and all the stockholders of Metals Company entered into an agreement whereby all the stock of the Metals Company was to be transferred to a third company (Metals Refining Co. of Ohio), an Ohio corporation, to be formed by the Glidden Company. The consideration to the stockholders of Metals Company for the trarisfer was '$153,036.66 cash; 5276 shares of 7% prior preferred stock of the Glidden Company at $105 per share; and 5000 shares of 6% cumulative preferred stock of the new company.
Each shareholder of the Indiana corporation, of which respondent was one, received the percentage of this total consideration that his stock holdings bore to the total outstanding stock of said Indiana company. Glidden Company paid cash for the common stock of the new Ohio company. It did not receive any of the preferred stock of this company. The Indiana company was dissolved. Its assets were valued at $1,207,046.66. It is admitted that the cash received by stockholders was taxable and also that respondent’s proportion of the 5000 shares of the preferred stock of the new Ohio Company by him received was not taxable. The issue is limited to respondent’s proportion of 5276 shares of preferred stock of Glidden Company.
Did the Board of Tax Appeals correctly hold that the Glidden Company was a party to a reorganization within the meaning of section 112 (i) (2) of the Revenue Act of 1928?
The pertinent reorganization sections are:
Ҥ 112. (a) General rule. Upon the sale or exchange of property the entire, amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section. * * *
“(b) * * * (3) Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.
“(4) Same — Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization. * * *
“(5) (c) Gain from exchanges not solely in kind. — (1) If an exchange would be within the provisions of subsection (b) (1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property.
“(2) If a distribution made in pursuance of a plan of reorganization is within the provisions of paragraph (1) of this subsection but has the effect of the distribution of a taxable dividend, then there shall be taxed as a dividend to each distributee such an amount of the gain recognized under paragraph (1) as is not in excess of his ratable share of the undistributed earnings and profits of the corporation accumulated after February 28, 1913. The remainder, if any, of the gain recognized under paragraph (1) shall be taxed as-a gain from the exchange of property. * * *
“(i) Definition of Reorganization. As used in this section and sections 113 and 115—
“(1) The term ‘reorganization’ means (A) a merger or consolidation (including the .acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (C) a recapitalization, or (D) a mere change in identity, form, or place of organization, however effected.
“(2) The term ‘a party to a reorganization5 includes a corporation resulting from a reorganization and includes both corporations in the case of an acquisition by one corporation of at least a majority of the. voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation.
“(j) Definition of control. As used in this section the term ‘control’ means the ownership of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation.” (26 U.S.C.A. § 112(a), (b) (3), (4) (c) (1,2) and note (g) (1,2) note, (h) and note.)
The recent decisions of the courts which have passed upon similar questions reject the respondent’s contention that he was within the exemption of the reorganization section. In other words, thq [following cases, while not exactly in point, are persuasive. Bus & Transport Securities Co. v. Helvering, 296 U.S. 391, 56 S.Ct. 277, 80 L.Ed. 292; G. & K. Manufacturing v. Helvering, 296 U.S. 389, 56 S.Ct. 276, 80 L.Ed. 291; Ballwood Co. v. Commissioner (C.C.A.) 84 F.(2d) 733.
Determinative of the question before us is the answer to the question, Was Glidden a party to1 reorganization whereby the Indiana Company transferred its stock to the Ohio Company and the latter paid the stockholders of Indiana Company in cash, preferred stock of Ohio Company, and preferred stock of Glidden Company?
We see no reason for extending the meaning of the term “party” as it appears in section 112 (i) (2) (26 U.S.C.A. § 112 (g) (2) note). To hold otherwise would be to usurp legislative functions. Congress has defined a party to a reorganization so as to permit a taxpayer to avoid what would otherwise be taxable income. It could have refused to allow such deductions altogether. Having exempted “gains” through reorganization, it could and did define reorganizations. In so doing it used the term “a party” referring to those who were in the reorganization. We must hold respondent to the definition which Congress specifically gave to the word “party.” It would, we think, be a forced construction to assume that under such circumstances there were parties other than those defined by the statute. Respondent relies upon the exemption of the statute, but declines to abide by the Congressional definition of essential terms.
The conclusion here reached is confirmed if we view the transaction from another approach. Let us assume that we have a taxpayer who owns stock in a corporation which he sells to another corporation. He is paid partly in cash, chiefly in preferred stock of a third corporation, and the balance in preferred stock of a corporation which buys his stock. The price received is in excess of the cost of the stock to him. Is his gain taxable?
There can be no question about the correctness of an affirmative answer save for an alleged exception or exemption from the tax law due to the reorganization provision of the act. The cash received, of course, is not exempt. The taxpayer does not question the tax upon the cash by him received. The Government concedes the soundness of the taxpayer’s claim of exemption so far as the stock of the acquiring corporation is concerned. In the face of this concession this item like the cash item is out of the picture. As to the stock of a third company, even though it be a parent company, there seems no reason for exempting it any more than could be advanced for exempting the cash. Instead of preferred stock of the third company, it might have been bonds of the third or a fourth company, or real estate or physical personal property. The reason for exempting the stock of the purchasing company does not apply.
Our conclusion, however, is based not upon the reasons for Congressional action, but upon the fact that Congress, in exempting gains derived through the transfer of stock which transfers are but a part of reorganizations, saw fit to define with particularity the terms “reorganization” and “parties to reorganization.” As we apply these definitions to the facts before' us, we are impelled to the conclusion that the Glidden preferred stock was not exempted.
The order is reversed, with directions to proceed in accordance with the views herein expressed.
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
ANTHONY et al. v. SHERMAN.
No. 5550.
Circuit Court of Appeals, Fourth Circuit.
Feb. 17, 1947.
J. Hanson Boyden, of Washington, D. C. (Stone, Boyden & Mack, of Washington, D. C., Fred W. Bynum, of Rockingham, N. C., and Martha B. Conway, of Richmond, Va., on the brief), for appellants.
L. R. Varser, of Lumberton, N. C., (Var-ser, McIntyre & Henry, of Lumberton, N. C., on the brief), for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a judgment for plaintiff in a patent case finding infringement and awarding damages and an injunction. Plaintiff is the owner of patent No. 2,369,415, covering a method of repairing cracked cylinder heads and blocks, applied for October 5, 1943 and granted February 13, 1945. The defendant Anthony is the operator of a repair shop and the defendant Goodwin is one of his employees, who was employed by plaintiff in the year 1938. Defendants have been engaged in repairing cracked cylinder heads and blocks by a method which plaintiff contends is an infringement of his patent. They contend that the method which they are now using is identical with the method used by them in 1938 and say that, if it is covered by plaintiff’s patent, the patent is necessarily invalid because used publicly both by them and the plaintiff for several years prior to the date of application. The patent contains only one claim, which is as follows : “The method of repairing cracked cylinder heads and blocks, consisting in subjecting the cylinder head to heat, of substantially 500 degrees F., spreading the walls of the crack to substantially V-shape while the cylinder head is in a heated condition, forcing portions of the walls of the V-shaped crack into the bottom of the crack providing right angled surfaces at the bottom of the crack, placing a filler bar having a curved surface and a straight surface, within the bottom of the crack subjecting the filler bar to pressure to form the filler bar into the shape of the bottom of the crack, pressing portions of the cylinder head into engagement with the filler bar, tying the filler bar within the crack, and finally directing pressure to the cylinder block adjacent to the edges of the crack, forcing the walls of the crack together, completely covering the filler bar.”
The patent in suit is in no sense a pioneer patent, and the file wrapper shows that all of the claims at first proposed were rejected on prior patents. THe file wrapper says in this connection: “Claims 1-3 are rejected as unpatentable over Brewer in view of Harman or Haas, all above cited. Brewer discloses the method of repairing cracked machine parts by the method steps of treating the crack, inserting a metal filler into said crack, forcing portions of the metal of the machine part into engagement with the filler material and covering ,the metal filler as shown by Fig. 4 and its description in Brewer. Harman or Haas discloses the method of pressing metal as required to close an opening or crack to form surface of a desired shape and smoothness, which may be substituted for the method of pressing shown by Brewer. In so far as such a substitution is concerned, it is not believed that it required a ‘creative flash of genius’, beyond the skill of the art.” A.reconsideration of the claims was asked and they were again rejected on the citation of three additional patents, but it was intimated that one claim would be allowed if amended to set forth the degree of temperature employed in the method. The claim was so amended setting forth the temperature of substantially 500 degrees F.; and, as so amended, it was allowed.. It is worthy of note that no evidence was adduced showing that the temperature thus made critical was employed by the defendants in their process; but in the view that we take of the case this is relatively unimportant.
In the light of the file wrapper, as well as of plaintiff’s testimony, it is clear that the heart of the invention is the so-called tie-in step described in the claim as “pressing portions of the cylinder head into engagement with the filler bar,' tying the filler bar within the crack”. Plaintiff testified that this' step in his method was not discovered or developed by him until December 1942, and that it was this that made the method a success. There could not, of course, be infringement of the patent unless this as well as the other steps in the method of the patent was used; but there is absolutely no evidence that it was used. Plaintiff attempts to prove infringement by showing that Goodwin and Hyatt, another of his ex-employees whom Anthony had employed, were using for Anthony the method that they had learned from him; but it was several years prior to plaintiff’s development of the tie-in step that these employees worked for him, and there is no showing whatever that they or Anthony used the tie-in step. What evidence there is on the subject, is to the contrary. Thus plaintiff, when asked whether defendant Anthony used the same method or whether there was a variance, answered, “Yes, there is a slight variation. That is, of the tie-in which made the method secure. He used everything else but the tie-in.” With respect to Vance Goodwin he testified: “Vance Goodwin came to my shop one night and he said, ‘let me repair this head for you, I will show you I am doing it just like you are doing it.’ I laughed at him and said, ‘sure, go ahead.’ He picked up my tools and he repaired the head and he repaired right straight through until it came to the tie-in, and then when he came to the tie-in, he jumped it, because he didn’t know it, because that had been concealed by me at Darlington, South Carolina, where it was perfected in 1942, and it was finished on December 2nd, of 1942.”
Plaintiff further testified that his notice of infringement was based on what was learned by a night watchman, Jim Floyd, whom he sent to Anthony’s shop in 1945 to observe the method there used by defendants. As to this he said:
"Q. At the time of Floyd’s visit he found the defendant was not using the tie-in method? A. Yes, he found he was not using the tie-in, that was before they had had time to get this patent, to get the copy of the patent.”
Plaintiff was asked specifically if he had knowledge of any fact showing that the tie-in step was used by defendant and admitted that he had not. The testimony with respect to this is as follows:
“Q. If you have knowledge of any fact that shows he is using the tie-in method, tell us what it is, that is if he has been using it since you got your patent? A. I have not checked one of the heads, 1 mean, since the patent, but it was checked before.
“Q. Was the tie-in then used? A. No sir, everything but that was used.
“Q. He had used everything except the tie-in when you checked it? A. Yes, sir.”
The only thing tending to show the use of the process of the patent that we have been able to find is an affidavit of Goodwin, which he says was obtained from him when he was drinking, but which, in the light of the testimony above quoted, has no probative value in any event; for while Goodwin says in the affidavit that Anthony is repairing cracked cylinder heads’ in the manner covered by the patent, he also says that he has been repairing them in the same manner since 1938. Of course, if this is true, the patent is void for prior use; but it is clear from the evidence that no one was using the tie-in step prior to 1942 and the affidavit evidently does not refer to this but is using general terms to describe the process of the patent, without reference to the tie-in step, under the misapprehension that the use of any part of the patented process is an infringement.
There is thus no evidence to justify a finding that the tie-in step of the patented process was ever used by either of the defendants; and, this being true, a finding of infringement is not justified. There is no evidence of the substitution of an equivalent; and the law is well settled that the claim of a process patent is not infringed where any one of the steps, or series of acts, set forth in the claim as constituting the process, is omitted, unless some equivalent step or act is substituted for it. Royer v. Coupe, 146 U.S. 524, 13 S.Ct. 166, 36 L.Ed. 1073; Id., C.C.Mass., 38 F. 113; Vulcanite Co. v. Davis, 102 U.S. 222, 26 L.Ed. 149; Mowry v. Whiting, 14 Wall. 620, 20 L.Ed. 860; Universal Oil Products Co. v. Globe Oil & Refining Co., 322 U.S. 471, 485, 64 S.Ct. 1110, 88 L.Ed. 1399, 40 Am.Jur. 646; Walker on Patents 6 ed., vol. 1, p. 487, par. 399.
We are impressed, as was the just and learned judge below, by the evidence showing that the defendant Anthony hired employees of plaintiff for the evident purpose of using in his own business the methods of repair that they had learned from plaintiff; but the trouble with plaintiff’s case is that these employees worked for plaintiff before the tie-in step of the patented process was evolved and the evidence does not justify a finding that it was ever used by them. Since -infringement of the patent is not shown, it is not necessary for us to inquire into its validity. The judgment appealed from will be reversed.
Reversed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_stpolicy
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Abraham MANDEL, Executor of the Will of Max Mandel, Deceased, Plaintiff-Appellant, v. Walter R. STURR, Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees. Pauline HOFFMAN, Lillian Starr, Joseph J. Mandel and Abraham Mandel, Plaintiffs-Appellants, v. David COPANS, Executor of Harry M. Hickey, deceased, former Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees.
Nos. 59 & 60, Dockets 24993, 24994.
United States Court of Appeals Second Circuit.
Argued Jan. 7, 1959.
Decided April 29, 1959.
James R. Rowen, New York City (Abraham Mandel, New York City, on the brief), for plaintiffs-appellants.
Arthur V. Savage, Asst. U. S. Atty., Southern District of New York, New York City (Arthur H. Christy, U. S. Atty., Southern District of New York, New York City, on the brief), for defendants-appellees.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge.
GIBSON, District Judge.
Abraham Mandel, executor under the will of Max Mandel, and the beneficiaries, Pauline Hoffman, Lillian Starr, Joseph J. Mandel, Abraham Mandel, hereinafter referred to as the beneficiaries, brought their actions to recover amounts paid by them under protest as a result of additionally assessed estate and income taxes. The executor and the beneficiaries, respectively appeal from the determinations of the Trial Court sustaining in part the deficiency assessed by the Commissioner of Internal Revenue in the estate tax reported by the executor and the income taxes of the recipient-beneficiaries. The appeals in the two cases have been consolidated.
The essential facts of this case are fairly clear. At the date of Max Mandel’s death on June 9, 1945, he and David Wolf son were sole partners in a military uniform business. It is apparent from the facts that the partnership owned and required substantial capital to function. Under the terms of an agreement entered into between the surviving partner and the executor, on December 31, 1945, the book value of Max Mandel’s share in the tangible assets of the partnership was fixed at $153,162.56. There is no reason to doubt that this was a fair valuation. In fact, that figure is not questioned either in the court below or before this court. That amount was included in the decedent’s gross estate and the estate tax properly paid. The sole issues here are (1) whether the gross estate of the decedent includes an amount ($12,595.57) received pursuant to a partnership agreement representing interest on the capital account (valued at $153,162.56), and (2) whether it includes an amount ($10,-000) received by the estate in settlement of a claim to participate in the profits of the business as carried on by the surviving partner (Wolfson) subsequent to the death of Max Mandel. Are these amounts “income in respect of a decedent” to the beneficiaries within the meaning of Section 126, Internal Revenue Code of 1939, 26 U.S.C.A. § 126?
The partnership agreement in effect at Max Mandel’s death provided in part as follows:
“13. That at the expiration of this partnership by the expiration of its term or by reason of any other cause, a full and accurate inventory shall be prepared, and the assets, liabilities and income, both gross and net, shall be ascertained; the debts of the partnership shall be discharged; and all monies and other assets of the partnership then remaining shall be divided in specie between the parties share and share alike, provided, however, that the capital accounts are equal, and if not equal, in that event in such proportion as the capital accounts bear to each other.”
“18. That in the event of the death of either party hereto, this partnership shall terminate and the surviving partner shall become trustee of all of the assets and business of the partnership for the purpose of liquidating the same, discharging its debts and paying to the representatives of the deceased party the respective share as hereinabove provided of said deceased party. The said surviving party shall pay to the representatives of the deceased party the sum of $5,-000. in cash immediately upon receipt from the insurance company of the proceeds of the policy referred to hereinabove in Paragraph 16 and the balance of the deceased party’s share in the partnership in 40 equal monthly installments with interest at the rate of 6% per annum to be computed from the date of demise * * *”
There are other provisions in the agreement whereby a retiring partner could similarly receive installment payments of his partnership share upon retirement. There is little or no doubt that the value of an estate’s right to receive income earned by a partnership subsequent to the death of a deceased partner is includible in the gross estate. As this court stated in Riegelman’s Estate v. Commissioner, 2 Cir., 1958, 253 F.2d 315, 316, an extended discussion is not required as to that particular point, it having been adequately reviewed and analyzed elsewhere. However, this case is distinguishable from Riegelman on the facts.
The amount of $22,595.57, the subject of this appeal, derives from two sources. Firstly, under the quoted portions of the partnership agreement, the deceased partner’s share in the partnership assets was payable to the estate in 40 equal monthly payments with interest at 6% per annum. There was, however, a lapse of some six months from the date of Max Mandel’s death without any such payments being made. It is apparent that after negotiation between the executor and the surviving partner, David Wolfson, a Memorandum Agreement was entered into which provided that the deceased partner’s share of the partnership assets, valued at $153,162.56, would be paid to the estate in full. Wolfson then paid that amount as agreed. They further agreed that the amount of $12,-595.57 was to be paid to the estate in full settlement of all interest due or to become due on the capital account under the Mandel-Wolfson partnership agreement and that an additional $10,000 would be paid by Wolfson in settlement of any claim the estate and beneficiaries might have to post-mortem profits in the partnership. There is no evidence that these were other than arm’s-length negotiations, or that the interest provisions of the partnership agreement were calculated as a method of substituting interest payments for capital to escape possible estate taxation.
The sum of $22,595.57, representing the total of $12,595.57 in interest and $10,000 in settlement of the claim to future profits was paid by Wolf son and distributed to the beneficiaries. The executor and recipient-beneficiaries brought their actions to recover taxes paid on these amounts under protest.
Although Section 126 of the Internal Revenue Code of 1939 is high on the list of vaguely drafted legislation in a field notoriously complex, we see no reason to extend its broad language so far as the Government urges in this case. The $12,595.57 was paid by Wolf-son in settlement of. interest due on an asset of the estate. It was a fair amount to pay for the full usage had by Wolf-son of the capital of the estate invested in his business over the period of time until the full share of the decedent’s interest in the partnership assets was paid in full to the estate. As such, the $12,-595.57 is in the nature of a legal rate of interest or return on a capital investment significantly represented by the principal amount of $153,162.57, already included in the gross estate and the estate tax once paid. To perpetually tax the right to interest or earning capacity of the capital already included in the gross estate, as the appellee suggests, extends the meaning of the Code beyond reason. The Government places much reliance on the Riegelman case, supra, wherein this court reviewed much of the legislative and case history of Section 126, Internal Revenue Code of 1939. That case has, however, no factual similarity to the ease before us. In the case before us, capital is a substantial income producing factor, whereas in Riegelman, it is not. The interest payment can hardly be said to be “the fruits of the (deceased’s) professional activity during his lifetime.” The $12,595.57 has once been accounted for, in effect, by the inclusion of the $153,162.56 in the decedent’s gross estate and is an inherent part of that amount. Such a conclusion is in accord with the court’s reasoning in McClennen v. Commissioner of Internal Revenue, 1 Cir., 131 F.2d 165, 169, 144 A.L.R. 1127. There Judge Magruder aptly analogizes to the case of one who dies possessed of a $1,000 bond payable in ten years bearing interest at 6%. Judge Magruder points out that the bond in its entirety, valued at par at the date of death, will be included in the gross estate, and upon the decedent’s death the right to future income payments have been in effect included in that amount in his gross estate. In short, the interest payment in the case before us is not separately attributable “to the activities of the decedent during his lifetime,” but is attributable to the earning capacity of the capital of the estate allowed to remain in Wolfson’s business. It has been in effect accounted for by the inclusion of $153,162.56, the deceased’s share in the partnership, in the gross estate. In the absence of any evidence of subterfuge on the part of the partners, Mandel and Wolf son, whereby the value of their respective partnership share was understated and subsequently paid out to the estate in the guise of interest payments, we hold that the interest payment of $12,595.57 is not a proper item for inclusion in the decedent’s gross estate, nor is it to the recipient-beneficiaries “income in respect of a decedent.” It is, however, as the appellants admit, ordinary income accruing to the estate and beneficiaries.
The $10,000 item which the Government contends is squarely within the rationale of the Riegelman and McClennen cases poses another question. If this payment represents a settlement of the estate’s established right to postmortem partnership earnings, and such right was created prior to the decedent’s death as a substitute for the estate’s common law liquidation share, then it is a sum includible in the gross estate. However, to characterize the $10,000 payment as a settlement of an existing right of the estate at the date of the decedent’s death is inaccurate. The situation as to the $10,000 Wolfson paid the executor and beneficiaries to settle their claim for post-mortem profits is quite different. Had Wolfson promptly carried out the terms of the partnership agreement, the executor and beneficiaries would have had no right to claim any share in post-mortem profits. Neither the decedent nor his executor or beneficiaries could anticipate that Wolfson would not promptly proceed to carry out the applicable provisions of the partnership agreement.
When the executor concluded that Wolfson had unduly delayed carrying out the terms of the partnership agreement he entered a claim for post-mortem profits accruing during this claimed undue delay.
In McClennen and in Riegelman the courts had before them partnership agreements obviously providing for a right of the estate to share in postmortem profits in lieu of common law liquidation rights to which the estate would have succeeded in the absence of those agreements. There is no such provision in the Wolfson-Mandel partnership agreement. As stated in Riegelman [253 F.2d 319]: “the payments were not gifts, nor were they attributable to anything done by Riegelman’s estate.” On the other hand, in the case before us, the $10,000 was a purchase of peace by Wolfson, in effect attributable to the activity of the executor and beneficiaries.
When Max Mandel died on June 9, 1945, the estate was properly entitled to a settlement of its share in the Mandel-Wolfson partnership interest pursuant to the partnership agreement. While the decedent’s estate was entitled to monthly payments with interest in the manner provided in sections 13 and 18 of that agreement, there is no provision for post-mortem partnership profit payments such as we find in Riegelman. It was only after a lapse of six months or so, during which time no monthly payments were forthcoming that the executor felt entitled to a certain percentage of partnership profits to compensate them for Wolfson’s undue delay in paying over its share in the partnership assets. The estate’s share in the partnership’s tangible assets was a benefit to Wolfson’s business so long as it was retained by him after the death of the decedent, Max Mandel. From these facts the estate’s claim to partnership profits arises. In settlement of this claim, the executor, Wolfson, and the beneficiaries entered into a Memorandum Agreement whereby it was agreed that Wolfson would pay $10,000 in full settlement of any claim the executor and the beneficiaries might have to post-mortem profits; in Wolfson’s business. This payment is referred to in the Memorandum Agreement as being “in full settlement of the claim of (the executor and the beneficiaries) to participate in the profits of (the business) * * * ”, This Memorandum Agreement established a new right that did not exist at the time of the decedent’s death — a sum paid in satisfaction of the contentions of all parties thereto. $10,000 paid under these circumstances does not conclusively establish an existent right of the estate to participate in post-mortem profits when we come to the issue of estate and income taxes. There may well have been no validity to the estate’s contentions as to profits prior to the Memorandum Agreement. However, an agreement to pay and accept $10,000 in settlement of the dispute is entirely reasonable and beneficial to Wolfson’s business and to the estate, both desiring to clear up the affairs expeditiously with a minimum of litigation and expense. On the facts of this case, the payment by way of settlement (attributable to the activity of the estate) is not includible in the estate of the decedent under Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, nor is it “income in respect of a decedent” under Section 126 any more than it would be if it were a gift from Wolfson to the estate and beneficiaries. See Bausch’s Estate v. Commissioner, 2 Cir., 186 F.2d 313. The $10,000 is ordinary-income accruing to the estate and beneficiaries.
Lastly, the question of attorney’s fees is raised by appellants. The Trial Court found the sum of $2,500 to be a reasonable amount for prosecuting the refund claim, and disallowed the $5,000 figure claimed. In computing the estate tax, the estate was allowed a $2,500 deduction. We are unwilling to reverse without concluding that the Trial Court’s findings were clearly erroneous. International Bureau v. Bethlehem Steel Company, 2 Cir., 192 F.2d 304. There is no basis for the appellant’s contention that the Trial Court abused its discretion.
It is apparent, however, that the $2,500 allowed did not include this appeal. The Trial Court is in a far better position than is this court to determine whatever should be allowed for these services.
Accordingly, we remand to the Trial Court, as we have done in the past, for a determination of the amount that should be allowed for this appeal. Bassett’s Estate v. Commissioner of Internal Revenue, 2 Cir., 170 F.2d 916.
Reversed in part; remanded for further proceedings consistent with the views expressed herein.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_opinstat
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES of America, Plaintiff-Appellee, v. Ray PALMER, Defendant-Appellant. UNITED STATES of America. Plaintiff-Appellee, v. Ray PALMER and Maurice Robert Hettich, Defendants-Appellants.
Nos. 71-1596, 71-1597.
United States Court of Appeals, Sixth Circuit.
March 31, 1972.
Certiorari Denied Oct. 10,1972.
See 93 S.Ct. 119.
George J. Long, Louisville, Ky., for appellee.
Frank E. Haddad, Jr., Louisville, Ky., for appellants.
Before TOM C. CLARK, Associate Justice, and PECK and KENT, Circuit Judges.
Associate Justice of the Supreme Court of the United States, Retired, sitting by designation.
PER CURIAM.
The Defendants Appellants, Palmer and Hettich, and others not involved here, were charged with violations of 18 U.S.C. § 1955, which prohibits the operation of an illegal gambling business. To constitute an offense under this Section, the gambling business must violate a relevant state or local law, have five or more persons involved in its conduct and be in substantial, continuous operation for more than thirty days or have a gross revenue of $2,000 or more in one single day. Section 1955(c) further provides that for the purpose of securing warrants “probable cause that the business receives gross revenue in excess of $2,000 in any single day shall be deemed to have been established” if five or more persons conduct such business and it operates for two or more successive days. Appellants conducted their business at two separate locations in Louisville, Kentucky, and search warrants were issued covering both addresses. The affidavit supporting the search of the location on Fifteenth Street recited that five or more persons were involved in its conduct and that it had been in substantial, continuous operation exceeding thirty days. However, the affidavit supporting the Nineteenth Street search recited that five or more persons were engaged in its conduct but only on two successive days. The affidavit relied on the presumption of § 1955(c) aforesaid. Appellants’ primary position is that § 1955(c) is unconstitutional as violative of both the Fourth and Fifth Amendments and that the affidavit in question is not factually sufficient. Other contentions are that the five persons alleged in the affidavits as conducting the gambling business include employees; that § 1955 is hinged on state law, is an unlawful delegation of congressional power and denies equal protection of the law and that the admixture of § 1955 and the Kentucky gambling laws renders the latter unconstitutional in that the Kentucky Constitution provides that no law “shall be enacted to take effect upon the approval of any other authority than the General Assembly.” We find no substance in any of these contentions.
Appellants recognize that Congress has the power to provide in a criminal statute that proof of one fact shall constitute presumptive or prima facie evidence of another. The requirement of a rational connection between the fact proved and the fact presumed was the crucial due process test established in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). Also see Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). The extensive hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary 91 Congress, 1st Session, on S. 30 and other bills which culminated in the Organized Crime Control Act of 1970 clearly reveal that “in most or all” of the cases involving raids of gambling establishments, the records seized reflected revenues of these establishments to be “better than $2,000 a day.” Report of the Senate Committee on the Judiciary S. R. 91-617, page 400. From these and other available statistics indicating revenues received by such gambling businesses, the Congress could reasonably conclude that a gambling operation with five or more participants doing business for two consecutive days would reap at least $2,000 in revenues in a single day. See 116 Cong.Rec. 603-604. We conclude that this is a permissible inference.
Appellants also contend that § 1955(c) creates an irrebuttable presumption that if five or more persons are conducting the business condemned and such business operates for two or more successive days, probable cause is established. The Government answers that there is no irrebuttable presumption in the act and we find none. The Appellants were at liberty to rebut the presumption but elected not to do so. The claim therefore has no merit. Appellants’ other contentions are equally without merit. They urge that the five persons engaged in their business were employees and could not be included among those who “conduct, finance, manage, supervise, direct or own all or part of such business ...” However the Senate Committee Report on the Act specifically states that the term “conduct” refers to both “high level bosses and street level employees.” Nor will the contention that the Federal crime hinges on state law and is therefore an unconstitutional delegation of congressional authority stand scrutiny. It was directly rejected in United States v. Compton, 365 F.2d 1 (6 Cir. 1966), involving the phrase “unlawful activity” in 18 U.S.C. § 1952, which employs the same technique as used in § 1955. Also see United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) which implicitly approved this procedure. Finally, we conclude that Appellants’ contention that § 1955 requires that Federal gambling laws enacted by the Kentucky Legislature take effect only upon the approval of the Congress is entirely frivolous. The relevant Kentucky laws were enacted long prior to § 1955 and insofar as Kentucky law is concerned, the latter has no effect whatever upon their enforcement in Kentucky courts.
Affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_two_issues
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
CITY OF EVANSVILLE, IND., et al. v. GASETERIA, Inc.
No. 4437.
Circuit Court of Appeals, Seventh Circuit.
June 29, 1931.
Frank C. Dailey, Percy E. O’Neal, George S. Dailey, and Robert A. Efroymson, all of Indianapolis, Ind., for appellants.
Myron H. Gray, of Muncie, Ind., and William H. Thompson, Albert L. Rabb, and Thomas D: Stevenson, all of Indianapolis, Ind., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
Appellee brought its equity action to enjoin appellant city and its officers from interfering with appellee’s installation in the city of a gasoline filling station having bulk and service tanks of a total of some 51,000 gallons capacity. Upon final hearing, the court granted the relief prayed,.and the appeal is from the decree.
Federal jurisdiction is invoked upon the allegation that through the acts complained of appellee was and would be deprived of its property without just compensation, in violation of the Fifth Amendment, and be denied the equal protection of the laws, contrary to the Fourteenth Amendment of the Federal Constitution.
In November, 1929, appellee, desirous of installing such a station in Evansville, applied to the Indiana state fire marshal for requisite permit therefor. The marshal granted the permit, which recites tnat the filling and service station is to be located at the corner of John and Heidelbaeh streets and on the Illinois Central railroad land, and to consist of three tanks aggregating 47,000 gallons capacity and two tanks each of 2,000 gallons capacity, and attached a blue print of the plans.
This blue print and the marshal’s permit, together with application for permit from the city to erect the necessary buildings, were presented by appellee to one Voss, then Evansville’s building commissioner. Voss at first refused to grant the permit unless, as he said, appellee would agree in writing not to cut the price of gasoline in the city. With this proposition appellee refused to comply, and Voss indorsed on the application the following :
“The undersigned in the past has denied the Hoosier Petroleum Co. and others a building permit for the reason that they were retailing gasoline in other cities at a cut price and the undersigned does not want to be instrumental in starting in substance a gasoline war in Evansville and denies this permit for the same reason.
“Signed by
“John Voss
“Building Comm., City of Evansville.
“P. S. I acknowledge that the permit fee of $4.00 has been offered and tendered but was refused by me.
“[Signed] John Voss.”
It appears that Voss had -written the fire marshal under date of November 1, 1929, urging him to assist him in keeping out such price cutters.
There was evidently a renewal of the application for the permit, and it was granted on November 21, 1929, with the following in-dorsement thereon:
“Permit considered, approved and ordered by City Attorney, Henry Hardin, and also approved by Mr. Blanchard of City Plan Commission from the standpoint of Zoning and quantity of gasoline storage.
“[Signed] John Voss”
Thereupon appellee completed or let contracts for buying land and equipment; buildings upon the site were tom down, pipes were laid, tanks and other equipment were brought to the property,' and the work was in progress and some equipment installed when, on February 12, 1930, appellee was notified to discontinue excavation in an adjacent alley, and, on disobedience of the notice, appellee’s president, Williams, and agents were arrested, and the work was stopped.
It appears that appellee was not then excavating in the alley, hut had laid pipe across it, and excavation for the building and underground tanks was in progress within six inches of the alley. The board then based its complaint oh the assertion that appellee had no right to cross the alley with, pipe which was designed to carry gasoline from the storage tanks being located on the railroad property to the filling station proper on the opposite side of the alley.
On December 17, 1929, after the procurement of the site and letting of contracts by appellee, the city council passed an ordinance called “gasoline amendment,” amending the Building Code and declaring it unlawful, within the city limits, to install, above or below ground, storage tanks of combined ca-paeity exceeding 3,000 gallons at one location. The City Code had previously provided that such installations should be in accordance with the rules and regulations of the state fire marshal. These regulations provided that no filling station should be installed at any place within a city’s fire limits or fire zone, which had tanks of maximum capacity of over 6,600 gallons, and that bulk storage should not exceed 8,800 gallons. The rules also provided for making exceptions thereto on written request whenever the fire marshal deems that life and property will not thereby be endangered.
Section 2 of the new ordinance provided that it was to be in force fifteen days after its publication. The .publication claimed was by posting on the Federal building in Evansville December 24, 1929. Appellee contends that it never heard of the ordinance until February 5, 1930.
Under date of February 13, 1930, there was sent from the fire- marshal’s office to the Board of Works a letter which stated that if appellee’s bulk storage and filling station was within the fire limits of the city of Evansville it had no approval from his department, as the approval was procured by Mr. Williams, with definite understanding that his bulk storage station of over 8,800 gallons capacity was located outside of the fire limits of Evansville.
Under date of February 18, the fire marshal again addressed a letter to the board of works and to Williams wherein, after purporting to recite the facts, the fire marshal concluded that there was nothing hazardous to life and property in the erection, operation, and conduct of the station, and that he approved its erection upon the terms of the original permit, and for purpose of clarifying the particular ease modified the rule.
Under date of February 20, the state fire marshal, in a more formal instrument, addressed to the mayor, the board of works, the zoning board, the building commissioner, the city council of the city, and to appellee, purported to recite the facts of the ease, and made the order ratifying the original permit of November 18, 1929, and waiving the rules and regulations to the extent that the original permit may have been in conflict therewith.
Respecting the representation to the marshal that the station was not in the fire limits, Williams testified that the location was far from the business part of the city, and so remote from buildings that he honestly assumed it was not within the fire limits.
It appears that on January 8,1930, there was a change of administration in the city; a new mayor and others, including a successor to Voss as building commissioner. However, resistance to this installation appeared to have continued, and there are some faets tending to indicate tbat it was inspired or supported by one or more persons interested in' .other filling stations.
But under date of February 25, the then building commissioner revoked appellee’s permit of .November 21,1929, in so far as it'permits installation of tanks for storage of petroleum products, except as to two 4,000-gal-lon tanks for storage of motor oil and two 2,000-gallon tanks for gasoline and one 500-gallon tank for kerosene, and one 500-gallon tank for alcohol, such revocation purporting on its face to be predicated solely upon subsection 38 of section 6 of an ordinance of the city adopted August 17, 1925, known as the “zone ordinance,” which provides that in the district there defined buildings and premises may be used for any purpose except the following: “38. Petroleum Products, Refining or Wholesale Storage of Petroleum.”
The notice of revocation specified “wholesale storage of petroleum” as the particular part of the ordinance which appellee’s permit transgressed.
It thus appears that the prior pretexts upon which the carrying on of this work was resisted and stopped, after the permit had been granted, viz., misrepresentation to the fire marshal as to location outside of the fire limits, the contention of excavation of alley, which culminated in stopping the work and the arrest of Williams and others of ap-pellee’s employees and the claim that appel-lee had unlawfully crossed the alley with pipes, were all abandoned by the city, and the revocation was predicated wholly upon ap-pellee’s alleged transgression of the above-indicated provision of the zone ordinance.
Appellee properly maintains that appellants are precluded from now asserting grounds for revocation of the permit, other than those asserted in the revocation itself. Ohio & M. Railway Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693; McCreary v. Strongman et al., 6 F.(2d) 441 (C. C. A. 3); Second Nat. Bank of Allegheny v. Lash Corporation, 299 F. 371 (C. C. A. 3).
The situation then was this: The city authorities, with definite knowledge of the location and of the plans for this work, granted the permit for it with the recited concurrence of a representative of the zone board. On the faith of the permit appellee exercised options for the purchase of land, and leased other land and rights to lay pipes, and entered into contracts for constructing the buildings and installing and equipping the plant. Building was then under construction, the tanks had been purchased and were partly installed, some of them were on railroad cars awaiting unloading at the site, and the work was progressing, and about $20,000 had been expended when the work was interrupted by the city.
There is much discussion in the briefs respecting the power of the state fire marshal to make exceptions to his rules. We do not deem it necessary to give much consideration to this proposition beyond referring to Gorieb v. Fox, 274 U. S. 603, at page 607, 47 S. Ct. 675, 676, 71 L. Ed. 1228, 53 A. L. R. 1210, where it is said, concerning a regulation by a city council: “In laying down a general rule, such as the one with which we are here concerned, the practical impossibility of anticipating in advance and providing in specific terms 'for every exceptional case which may arise, is apparent. And yet the inclusion of such cases may well result in great and needless hardship, entirely disproportionate to the good which will result from a literal enforcement of the general rule. Hence the wisdom and necessity here of reserving the authority to determine whether, in specific cases of need, exceptions may be made without subverting the general purposes of the ordinance.”
The statute of Indiana (Acts 1913, p. 556, e. 192; sections 11761-11780, Burns’ 1926; sections 11762-11778, Burns’ Supplement 1929), creating the office of fire marshal, conferred upon the marshal broad functions and authority, which upon their face are sufficiently inclusive to authorize him, in his good judgment, to adopt rules, and in particular cases to make reasonable exceptions thereto.
It would seem that the city, when granting the permit, recognized this as having been a proper ease for exceptional treatment, both as to fire limits and zone; for while the fire marshal may not have known just where Evansville’s fire limits were, it would be drawing quite too heavily upon the imagination to assume that the building commissioner who granted the permit, and the zone officer who concurred in it, not to mention the city attorney, did not have definite knowledge of these lines. Such knowledge was manifestly a fundamentally requisite qualification for proper exercise of their official duties. We are therefore justified in saying that their approval of the permit was, so far as they were concerned, a recognition of its propriety, the fire limits and zone ordinance to the contrary notwithstanding; and when, shortly thereafter, the fire marshal found this to he a proper case for a waiver of his rules respecting the granting of permits within the fire limits, or respecting the zone ordinance, the city officials, whether of the old or new administration, were in no position to maintain that the fire marshal had no right to make the waiver; in fact the city attorney, upon receipt of a copy of the letter from the fire marshal, wherein he waived his rules, advised the building commissioner that that action by the fire marshal permitted of no prohibition against the proposed construction.
It .is not seriously contended that there is anything unreasonable or improper or unjust in the fire marshal’s waiver, so far as concerns the facts upon which he assumed to make it. This installation was not within prohibited proximity to any buildings or institutions as specified in any ordinance. It was on the edge of the fire limits, with no substantial buildings within a hundred feet of it. It was alongside the Illinois Central Railroad, so located that the oil could be passed from the tank ears into the buried storage tanks adjacent to the tracks, and from these tanks by pipes into the buried service tanks of the station, avoiding any further transportation. The tanks were all to be under ground, thereby eliminating considerable of the danger which would otherwise be involved, and the storage tanks were not to be employed for the filling of tank wagons and the general sale of gasoline.
It is quite evident that this location of the station in proximity to the railroad afforded advantages which might enable the station either to make a larger profit or to make reduction in selling price, and it was just this situation which Voss openly proclaimed he was resisting by refusing to grapt permits for stations located in such relation to railroads. However honest his views may have been, he of course had no lawful right to make such discrimination. But it may be fairly gathered from the circumstances here appearing that it was this spirit and purpose which actuated the opposition to this installation.
To obviate such conclusions, it is pointed out that the revocation did not undertake to revoke the permit to the extent of the two 2,000-gallon tanks for the gasoline. But the special advantage of the location, as pointed out, would be minimized, if not wholly neutralized, if in connection with the service tanks there were not bulk tanks into which the contents of cars might be run; for if adequate storage capacity were not immediately available, further handling of the oil was quite inevitable.
It occurs to us further that the words “wholesale storage of petroleum” as used in the zone ordinance may not apply to an installation such as this.
If it be assumed that gasoline would be included in the classification of “petroleum,” nevertheless the word “wholesale” seems to us to be employed in its ordinary significance, indicating sale in quantities, as opposed to sales at “retail.” A “wholesale” storage, where the product is disposed of in bulk quantities, such as to tank wagons, which thus obtain their supplies for retail distribution, is quite unlike one where the storage tanks are designed only to supply by gravity through pipes the nearby smaller tanks out of which the gasoline is pumped for the consumer. There is no procession of vehicles, each taking its load of gasoline; none of the special hazards manifestly incident to such a traffic. In this view, the installation would not in any event fall within the terms of even the zone ordinance.
Expenditure by appellee of this large amount on installation and equipment of this plant, under the facts and circumstances here appearing, in our judgment presents a case where the revocation of the permit, and stoppage of the work, would deprive appellee of its property without due process of law. Dobbins v. Los Angeles, 195 U. S. 223, 25 S. Ct. 18, 49 L. Ed. 169.
There is yet another feature upon which so far we have not dwelt. It is the contention by appellee that the conduct of the city officials has been such as to deny appellee the equal protection of the laws. This was sought to be shown by the fact that, under substantially like circumstances as here appear, various others have been permitted to make and maintain large installations, far in excess of alleged ordinance limits, both before and after these occurrences, and they have been in no manner disturbed by the city or its officials. Examination of the transcript satisfies us that there is good reason to conclude that this is so.
We think it may be fairly said that the openly manifested purpose of preventing price cutting of gasoline within the city, and to that end resisting the location in the city of bulk or storage tanks tillable from ears on adjacent tracks, in connection with a filling station, has so far dominated these transactions on behalf of appellants as to indicate a definite purpose and plan of discriminating unlawfully against this installation. We think it may be fairly gathered from the evidence that appellants have purposely and unlawfully denied to .appellee that protection which they have nevertheless extended to practically all others. This, in our judgment, is violative of the Fourteenth Amendment to the Federal Constitution. Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; Dobbins v. Los Angeles, supra; D. J. Dunigan v. District of Columbia, 59 App. D. C. 384, 44 F.(2d) 892 (C. C. A.); City of Vincennes, Ind., v. Marland Refining Co., 33 F.(2d) 427 (C. C. A. 7).
We are satisfied that the relief awarded was equitable and justifiable, and the decree is affirmed.
“Department of-Buildings
“John Voss, Building Commissioner
“Evansville, Indiana, November 1, 1929.
“State Fire Marshal, Indianapolis, Ind.
“Dear Sir: Several times in the past different parties have attempted to locate a retail gas filling station near a Railroad Switch for the purpose of retailing gasoline at cut prices and so far this office has been able to keep them out and we would like to continue to do so, because if one cut price concern gets started all the others will have to follow and the result is a complete demoralization of the business, as well as throwing a lot of men out of work and I would like before you ok any proposition of this kind to let me know, before giving your final decision and I will be obliged if you will help me out in this matter.
“Yours truly,
“[Signed] John Voss
“Commissioner of Buildings.”
To Gaseteria, Inc., Indianapolis, Ind.
The Mayor, Board of Works, Zoning Board, City Building Commissioner, and City . Council of Evansville, Ind.
In re: Installation and operation of combination bulk and public filling station at the corner of John and Heidelback Streets on the Illinois Central Railroad in the City of Evansville, Indiana.
A permit having been issued by the State Fire Marshal Department on the 18th day of November, 1929, and by the Building Commissioner of the City of Evansville, Indiana, on the 21st day of November, 1929, to Gaseteria, Inc., of Indianapolis, Indiana, for the installation, erection and operation of a combined bulk and public filling station at the corner of John and Heidelback streets on the Illinois Central Railroad in the said City of Evansville, Indiana;
The said Gaseteria, Inc., having proceeded to expend money for work, real estate, supplies and equipment in the installation and erection of said station, all in good faith and to the amount of approximately twenty two thousand dollars ($22,009.-00); and
A controversy having arisen as to the legality of the said permit granted by the State Fire Marshal Department; and
„ The State Fire Marshal having made investigation of all the facts in the matter does now and hereby render his decision as follows:
1. That there is nothing dangerous or hazardous to life or property in the installation and operation of this station at said location, at least no more dangerous or hazardous than is any other bulk or filling station at any other place in the state.
2. That all measurements are to be taken from pumps and center of tanks and not the buildings connected with such station.
3. That for the purpose of clarifying this particular case and rendering justice therein, so far as this said station is concerned the rules of the State Fire Marshal Department prohibiting the erection and operation of bulk storage stations within the fire zone of any city in the state are hereby waived; but this waiver is for only this particular case and not general in its application.
4. That the store building on the corner and about 310 feet from said station is not an apartment house.
• 5. That the unused alley across which the pipes of the Gaseteria, Inc., go is not a public passage way so far as this Department is concerned and the burial of said pipes across this alley to the depth of twenty-four inches is satisfactory to this Department and has the approval of this Department.
6. That the permit granted to the Gaseteria, Inc., by the State Fire Marshal Department on the 18th of November, 1929, was legal, and is so now; that said Gaseteria, Inc., should be permitted to proceed with its work on this station, complete it and operate it.
7. That in order to get this matter straightened out and render substantial justice, the State Fire Marshal does for this case only now and hereby waive all the rules and regulations of the Department that could or might in any way be construed as prohibiting the completion of this station and its operation according to the blue print filed; but such waiver is not general in application to other cases which might arise.
Witness my hand and official seal this 20th day of February, 1930.
[Signed] Alfred Hogston,
[Seal.] State Fire Marshal
State Fire Marshal Indiana,
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_usc1sect
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
CITY OF FORT LAUDERDALE, Appellant, v. EAST COAST ASPHALT CORPORATION et al., Appellees.
No. 19549.
United States Court of Appeals Fifth Circuit.
March 26, 1964.
Rehearing Denied June 10, 1964.
C. Shelby Dale, Fort Lauderdale, Fla., for appellant.
Richard M. White, Miami, Harrison D. Griffin, Fort Lauderdale, Thomas H. Anderson, Earl D. Waldin, Jr., Miami, Fla., for appellees.
Before TUTTLE, Chief Judge, and WISDOM and GEWIN, Circuit Judges.
GEWIN, Circuit Judge.
This case is related to the case of Hardrives Co., Inc., et al. v. East Coast Asphalt Corp., et al. No. 19864, 5 Cir., 329 F.2d 868, and the case of United States v. South Florida Asphalt Co., et al. No. 19635, 5 Cir., 329 F.2d 860, both decided this same date. The conduct about which complaint is made is the violation of the Sherman and Clayton Acts. This appeal is from an order dismissing the complaint of the City wherein an injunction and treble damages were sought.
The record is not clear, but apparently the trial judge dismissed the complaint because he considered that the goods and materials alleged to be involved came to rest in the state of ultimate consumption prior to the sale of the same to the parties who finally utilized them; and that such fact eliminated the “in commerce” character of the goods.
The allegations of the complaint in this case are substantially the same as in the Hardrives case. This Court has repeatedly held that complaints in civil cases should not be dismissed unless it clearly appears that under no theory can the plaintiff be entitled to relief. Des-Isles v. Evans, 5 Cir., 200 F.2d 614; City of Daytona Beach v. Gannett, 5 Cir., 253 F.2d 771; Mannings v. Board of Public Instruction, etc., 5 Cir., 277 F.2d 370.
We think that this complaint alleges facts on which relief could be granted on two grounds, first this Court has held that contractors engaged in the construction of interstate highways and other facilities of interstate commerce are engaged “in commerce.” Archer v. Brown & Root, Inc., 5 Cir., 241 F.2d 663, 667, cert. denied 355 U.S. 825, 78 S.Ct. 33, 2 L.Ed.2d 39; Mitchell v. Hooper Equipment Co., 5 Cir., 279 F.2d 893. The Supreme Court has, of course, held likewise. Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196. It is no argument to say that wage and hour cases are no authority for Sherman Act cases. Of course they are not necessarily authority to the extent> that they deny coverage. On the other hand, if they grant coverage on the basis of the employees actually being engaged in commerce then they are authority for what constitutes interstate commerce. Thus, we conclude that the allegation that the local conspiracy has artificially set prices for materials which its members sell or install for the construction of arteries of interstate commerce, is an adequate allegation of a conspiracy in interstate commerce.
Moreover, for the second point, we think the allegations of the manner in which the conspiracy, even though it be “local” in nature, affects commerce are sufficient to withstand a motion to dismiss. In United States v. Employing Plasterers Assoc. of Chicago, 347 U.S. 186, 74 S.Ct. 452, 456, 98 L.Ed. 618, the Supreme Court said, in a criminal case:
“The complaint plainly charged several times that the effect of all these local restraints was to restrain interstate commerce. Whether these charges be called ‘allegations of facts’ or ‘mere conclusions of the pleader,’ we hold that they must be taken into account in deciding whether the Government is entitled to have its case tried.
“We are not impressed by the argument that the Sherman Act could not possibly apply here because the interstate buying, selling and movement of the plastering materials had ended before the local restraints became effective. Where interstate commerce ends and local commerce begins is not always easy to decide and is not decisive in Sherman Act cases. See Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 232 [68 S.Ct. 996, 1004, 92 L.Ed. 1328].”
We think that the conspiracy alleged in this case dealing with the type of business in which the appellees are engaged falls well within the reasoning vf this case.
See also United States v. Women’s Sportswear, 336 U.S. 460, 69 S.Ct. 714, 93 L.Ed. 805.
The judgment of dismissal was in error.
The judgment is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number.
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Bryon E. CURTNER, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.
No. 78-1408.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 19, 1978.
Decided Oct. 25, 1978.
Phillip J. Barkett, Jr. of Dempster, Fuchs & Barkett, Sikeston, Mo., filed brief for appellant.
Robert D. Kingsland, U. S. Atty. and Bruce D. White, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
PER CURIAM.
Byron E. Curtner was denied social security disability benefits by the Secretary of Health, Education and Welfare. He asked the United States District Court for the Eastern District of Missouri to review the determination. On review the District Court affirmed the determination of the Secretary. Curtner appeals the decision of the District Court. We affirm.
Curtner raises two issues on this appeal. The first is whether the underlined portions of the following statement by an examining physician in a letter-report to the Secretary constitutes substantial evidence under Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).
NEUROLOGIC EXAMINATION: The patient was a ruddy faced, neatly groomed, graying haired WM who in my consultation room was observed to walk slowly, hesitantly and with slow measured painful steps. As the patient was observed leaving the office and walking: down the walk I noted him to have a normal stride with a brisk gait, no hesitancy of movement and normal arm movement while walking. The patient was acyanotic and nonicteric. The carotid pulses were present bilaterally without bruit and no bruit could be heard over the subclavians. Blood pressure, RA sitting, was 140/90. The pedal pulses were present. The patient was right handed. Gait during the examination was characterized by a limping and listing from side to side. He walked slowly hesitantly and painfully. He could do tandem walking adequately and Romberg’s sign was absent. His gait outside mv office, however. was as noted above and was characterized by a normal brisk stride with no hesitation. Cranial nerves 2 through 12 were intact. There was no nystagmus. Muscle tone was good and there was no evidence of weakness, atrophy, spasticity, flaccidity, or fasciculations. There were no tremors. There were no pathologic reflexes. Proprioception, vibration, pain, touch and stereognosis were all intact. Finger to finger, finger to nose and heel to shin were done rapidly and well. There was good flexion of the hips on the heel to shin maneuver bilaterally. There was no drift. The deep tendon reflexes were slightly hypoactive (1 + ) but symmetrical. The plantars were flexor. (Emphasis added.)
In Richardson the Supreme Court held that:
[A] written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.
Richardson v. Perales, supra, at 402, 91 S.Ct. at 1428.
Curtner recognizes that we are bound by Richardson, but contends that that part of the physician’s report which involves the doctor’s observation that Curtner walked with a “normal stride with a brisk gait, no hesitancy of movement and normal arm movement” does not constitute substantial evidence under Richardson because it was not part of the examination in the doctor’s office. While we would be reluctant to extend Richardson beyond the perimeters set by the Supreme Court, we do not find such an extension here. The doctor’s comments were closely and intimately related to the examination in the office and were based on observations made by the doctor with respect to Curtner’s movements in the office and as he left the office. We would also emphasize, as did the Supreme Court, that the claimant had an opportunity under 20 C.F.R. § 404.926 to request sub-poenaes for the examining physician and to cross-examine the physician when he was subpoenaed.
The second issue raised by Curtner is that the vocational expert’s testimony with respect to job opportunities for persons of Mr. Curtner’s age, experience, education, training and general physical condition was based exclusively on double hearsay in that it was based upon publications of the State Employment Office, the United States Government and various business publications. The record belies this contention. The vocational expert specifically testified that he also relied on personal visits to job sites and on conversations with people doing various types of work at the job sites in reaching his conclusion. Under these circumstances, we need not decide the question posed by Curtner.
We affirm the judgment of the District Court.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America, Plaintiff-Appellee, v. Isadore VERLINSKY, a/k/a Isadore Verlin, and Murray Verlinsky, a/k/a Murray Verlin, Defendants-Appellants.
No. 71-2802
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 8, 1972.
Rehearing Denied May 31, 1972.
George W. Ericksen, Maefarlane, Ferguson, Allison & Kelly, Tampa, Fla., for defendants-appellants.
John L. Briggs, U. S. Atty., Bernard H. Dempsey, Jr., Tampa, Fla., Francis Dicello, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., Scott P. Crampton, Gilbert E, Andrews, Asst. At-tys. Gen., Fred B. Ugast, Acting Asst. Atty. Gen., Crombie J. D. Garrett, Gordon S. Gilman, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
Before THORNBERRY, MORGAN and CLARK, Circuit, Judges.
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).
CLARK, Circuit Judge:
The alloyed tax-bankruptcy issue in this appeal requires that we construe a very narrow, highly technical, seldom invoked, slightly ambiguous — but here hotly contested — section of the Internal Revenue Code. Our interpretation constricts the reach of the aphorism of olde that “[t]he King’s debtor dying, the King shall first be paid,” by holding that before the sovereign claimed its privilege the statute of limitations had run. Indeed, the parties before us are agreed that but for the possible application of the tolling provisions of the Code section at issue in this case, the sovereign has no right at all to receive payment from these debtor-taxpayers of an amount admittedly owed.
The facts are not in dispute. We treat with them only briefly for most are of no aid to our disposition of the case. The United States brought an action in the court below to reduce to judgment four separate tax assessments previously made against the taxpayers (Isadore Verlinsky a/k/a Isadore Verlin, and Murray Verlinsky a/k/a Murray Verlin). The taxpayers admitted that the assessments had been made and were true and correct with respect to dates and amounts assessed; that the alleged unpaid balance, plus interest, was due and owing; but contended that it was all barred by the six-year statute of limitations. 26 U.S.C.A. §§ 6501, 6502. The government replied that the addition of four extensions agreed to by the taxpayers, 26 U.S.C.A. § 6502(a) (2), along with a period during which the taxpayers’ assets had been under the control of a bankruptcy court, 26 U.S.C. A. § 6503(b), together served to prolong the otherwise expired statute and brought the filing of the collection suit within the six-year limit. On rebuttal, the taxpayers further sharpened the controversy between the parties by conceding the four extensions, and thereby circumscribed the single issue now before this court to this: within the meaning of § 6503(b), for what portion of the period during which a bankruptcy proceeding continues can it be said that assets of a taxpayer, who is eventually discharged as a bankrupt, are under the control or custody of the bankruptcy court.
From the filing of the petition in bankruptcy, to the discharging of the trustee and closing of the estate, approximately two and one-half years elapsed. Due solely to the fortuitous timing of those proceedings, as they related to the running of the statute, the parties are in complete agreement that: if § 6503(b) should operate to toll the statute only until the discharge of the bankrupt, then it had run on the date suit was filed; if, however, the statute should remain tolled by § 6503(b) as late as the final closing of the estate, then none of the assessments were barred and the entire 23,125.85 dollars sought was payable. The district judge concluded that the latter interpretation was correct, and awarded summary judgment for the United States. We reverse.
Other than the Malkin decision, supra n. 2, which dealt with precisely the same question and facts that are now before us, there have been few cases dealing with this section of the Code, and though both parties attempt to rely on them, we find none to be helpful. Doubtless though, Chief Judge Carter foresaw our question when in his Mc-Cann decision he observed that “[t]he section leaves much to be desired in definiteness and clarity, and various situations may be spelled out in which real problems would arise.” This is what we have here.
Approaching, then, what is a novel question for this circuit, we are convinced that we should be first guided by the purpose Congress intended for § 6503(b), as that purpose is expressed in the legislative history. “The statute generally is suspended where assets are in the control or custody of a court because during this time they are not subject to administration collection procedures.” Quite obviously, the reason for the rule is that it would be unfair to allow the statute to run against the government’s right to enforce a tax lien at a time when, even if the government did bring suit, it couldn’t collect because it couldn’t “get at” the taxpayer’s assets. Other suspensions provided for in § 6503 are similarly designed. For example, the statute is tolled during any period the Secretary is prohibited from collecting by levy or proceeding in court, § 6503(a) (1), and likewise during any period that the taxpayer leaves the country for more than six months. § 6503(c).
Directly put, we must decide at what point during the bankruptcy proceedings did assets which once belonged to the taxpayer cease to be his assets; for at that moment, all assets then belonging to the taxpayer would be subject to collection by the government, and the government would again be charged with the responsibility of pursuing that collection. We hold that that moment occurred when the taxpayer was discharged as a bankrupt. For upon discharge, the taxpayer gave up all interest in his erstwhile assets (title to which had actually passed to the trustee the day the petition was filed, 11 U.S.C.A. § 110(a)), and did so in exchange for release from all save non-dischargeable debts. 11 U.S.C.A. § 1(15). That day, the taxpayer became a new economic person, entitled to retain any non-bankruptcy assets he then held and such other assets as he thereafter could accumulate, without interference from the bankruptcy court. As importantly, no later than that day, the taxpayers here were subject to assessment, suit, levy and execution for any debts not discharged, which included the tax assessments sought to be enforced by this action. Insofar as § 6503(b) relates to a bankruptcy proceeding, we refuse to interpret it in a fashion that would delay the hour when a man could finally divorce himself from his former holdings and debts. To do so would undermine the very purpose and policies of the Bankruptcy Act itself and jeopardize this circuit’s commitment to letting the bankrupt “start afresh.” Menier v. United States, 5th Cir., 405 F.2d 245, 249 (1968). We conclude that if the King wished to be paid, first or otherwise, then beginning on the day of discharge he had the obligation to bestir himself; for that is the day, economically speaking, the King’s debtor died.
Though this settles the issue, we feel compelled to make specific wherein we disagree with the Malkin decision, a carefully considered opinion which the court below endorsed. The Malkin court interpreted § 6503(b) in light of another section of the code, 26 U.S.C.A. § 6873(a).
The Judge reasoned that:
Inasmuch as the government is authorized to present its claim for adjudication to the Bankruptcy Court under 1954 IRC § 6871 and is authorized under 1954 IRC § 6873 to collect the portion of the taxes allowed in such proceeding ‘after the termination of such proceeding,’ it would appear a reasonable construction to hold that the entire term of the bankruptcy proceeding is excluded from the limiting period for suit. In a statutory sense the assets of the taxpayer are ‘in the control or custody of the court’ from the date the petition is filed to the date the referee signs the order closing the estate. United States v. Malkin, supra 317 F.Supp. at 616, n. 9.
We cannot accept that construction of § 6503(b) for two reasons. First, the government in this case has not contended, and we can find no evidence in the record to show, that it had presented a claim for these taxes to the bankruptcy court. Failing in its burden of proving that it was thus prevented from pursuing payment from the taxpayer until “after the termination of such proceeding,” it cannot now claim the protection of any relief § 6873 might otherwise afford. Second, even if the government had presented these claims to the bankruptcy court and was thereby precluded from demanding payment of unpaid claims until the proceedings had finally terminated, that would not persuade us to find that the taxpayer’s assets were under the control of that court until that time. Though in that instance § 6503(b) would not suspend the running of the statute any longer than it did in the actual case, § 6503(a) (1), previously mentioned, would so do. For that section specifically provides that there will be a suspension of the running of the statute for any period “during which the Secretary or his delegate is prohibited from making the assessment or from collecting by levy or a proceeding in court . . . and for 60 days thereafter.” However, finding that §§ 6873 and 6503(a) (1) are completely inapplicable to the case at bar, we decide that”] the statute began to run again from the I date the taxpayers were discharged in bankruptcy. The parties are agreed that this determination bars the suit; therefore the judgment below must be
Reversed.
. Magna Carta, 1225, 9 Hen. 3, c. 18, cited in Plumb, Federal Tax Liens and Priorities in Bankruptcy — Recent Developments, 43 Ref.J. 37 (1969).
. For a fully developed presentation of the facts, see United States v. Malkin, 317 F.Supp. 612 (E.D.N.Y.1970), a case dealing with precisely the same events and issues as the present case.
. The complete text of § 6503(b) reads:
(b) Assets of taxpayers in control or custody of court. — -The period of limitations on collection after assessment pre-cribed in section 6502 shall be suspended for the period the assets of the taxpayer are in the control or custody of the court in any proceeding before any court of the United States or of any State or of the District of Columbia, and for 6 months thereafter.
. See United States v. McCann, 259 F. Supp. 632 (S.D.Cal.1966); United States v. Cranor, 253 F.Supp. 600 (S.D.Ind. 1966).
. S.Rep.No. 1708, 89th Cong., 2nd Sess. 24-25 (1966).
. It is true that upon the completion of administration and distribution of the bankrupt’s estate, should there be any residue remaining it would be restored to the bankrupt for him to deal with as he pleases. 4A Collier on Bankruptcy, ¶ 70.07, at 94 (14th ed. 1971). However, such a remote possibility, which did not come to fruition in the case at bar, is not sufficient to upset our judgment that any such hypothetical residue ceased to , be “the taxpayer’s assets” on the day of discharge. From the day of discharge forward, all assets before the bankruptcy court were held in trust for the creditors of the taxpayer, and for the satisfaction of administrative costs. None of them belonged any longer to the taxpayer; they were all required of him as the price of his new economic freedom. In the unlikely event that he might later regain any portion of them, that portion would represent but an unexpected dividend of his bargain, and a newly-acquired asset.
. That section provides :
Any portion of a claim for taxes allowed in a receivership proceeding under the Bankruptcy Act which is unpaid shall be paid by the taxpayer upon notice and demand from the Secretary or his delegate after the termination of such proceeding.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Elsie W. RUDISILL and Coal, Feed and Lumber Company, Inc., Appellants, v. SOUTHERN RAILWAY COMPANY, Appellee.
No. 76-1552.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 9, 1976.
Decided Jan. 17, 1977.
James P. Erwin, Jr., Asheville, N. C. (McGuire, Wood, Erwin & Crow, Asheville, N. C., on brief), for appellants.
Robert F. Orr, Asheville, N. C. (Harold K. Bennett, Asheville, N. C., on brief), for appellee.
Before CLARK, Associate Justice, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.
Tom C. Clark, Associate Justice, United States Supreme Court, Ret., sitting by designation.
PER CURIAM:
The only issue on this appeal is whether Southern Railway Company (Southern) is a citizen of North Carolina for the purposes of diversity jurisdiction under 28 U.S.C. § 1332(c).
The action was originally instituted in the Superior Court of Madison County, North Carolina, to recover damages for injury to the plaintiffs’ property allegedly resulting from the derailment of a Southern freight train. Southern removed the case to the United States District Court for the Western District of North Carolina pursuant to 28 U.S.C. § 1441, and thereafter the plaintiffs moved to remand upon the ground that Southern is a North Carolina corporation and therefore does not meet the diversity requirements.
Southern was originally incorporated in 1894 in the State of Virginia and has its principal place of business in that state. Shortly after its incorporation Southern purchased under a foreclosure sale all of the property and franchises of the Western North Carolina Railroad Company (Western), a North Carolina corporation. Sections 697 and 698 of Chapter 16 of the North Carolina Code of 1883, which were in effect at the time of the purchase, provided that the old corporation (Western) should ipso facto be dissolved, and that the purchaser should forthwith be a new corporation succeeding to all of the rights, privileges and duties of the former corporation. Southern took no affirmative steps to seek or file articles of incorporation in North Carolina until 1899. In that year the North Carolina General Assembly enacted Chapter 62, Public Acts of 1899, which required that any corporation desiring to own property or carry on business within the state “become a domestic corporation of the State of North Carolina” by filing a copy of its charter and by-laws with the secretary of state and taking certain other steps delineated in the statute. Southern filed the necessary documents with the secretary of state and otherwise complied with the statutory requirements.
In urging their motion to remand, the plaintiffs contended that Southern became a domestic corporation in North Carolina in 1899. Alternatively, they argued that since the derailment occurred on that portion of the line once owned and operated by Western, for the purposes of this particular action Southern is a domestic corporation of North Carolina by virtue of the statutory provisions of the Code of 1883. The district judge carefully reviewed the cases construing these venerable statutes and, relying primarily upon Julian v. Central Trust Company, 193 U.S. 93, 24 S.Ct. 399, 48 L.Ed. 629 (1904), and Southern Railway Company v. Allison, 190 U.S. 326, 23 S.Ct. 713, 47 L.Ed. 1078 (1903), concluded that neither the compulsory incorporation in 1899, nor the operation of the 1883 statutes defeated Southern’s diversity status. Accordingly, he denied the motion to remand. We agree with the conclusions of the district judge and affirm upon his opinion. Rudisill et al. v. Southern Railway Company, 424 F.Supp. 1102 (W.D.N.C., 1976).
AFFIRMED.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appnatpr
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Liberi P. BERARDI et al., Plaintiffs-Appellants, v. The PURE OIL CORPORATION et al., Defendants-Appellees.
No. 71-1611.
United States Court of Appeals, Sixth Circuit.
March 14, 1972.
Jack Schulman, Cleveland, Ohio, for plaintiff s-appellants; C. D. Lambros, Cleveland, Ohio, on brief.
Dennis D. Grant, Columbus, Ohio, for defendants-appellees; Bricker, Evatt, Barton & Eckler, Columbus, Ohio, John H. Gherlein and Daniel W. Hammer, Cleveland, Ohio, on brief.
Before CLARK, Associate Justice, and McCREE and MILLER, Circuit Judges.
Tlie Honorable Tom O. Clark, Associate Justice of the United States Supreme Court, Retired, sitting by designation.
PER CURIAM.
Appellants filed a complaint in the District Court that purported to assert three “causes of action.” The court dismissed the complaint for failure to state a claim upon which relief could be granted but allowed appellants leave to amend to cure defects that the court specifically noted. Appellants then filed an amended complaint, which the court again dismissed for the reason that appellants had not complied sufficiently with the court’s orders and thus had not stated claims upon which relief could be granted. Pursuant to the court’s directions, appellants filed a second amended complaint. This time the court found that appellants’ first “cause of action” did not state a claim upon which relief could be granted and that appellants’ second “cause of action” was defective in the manner twice previously specified. Accordingly, the court dismissed the complaint with prejudice for failure to state claims upon which relief could be granted and for failure to comply with the court’s prior orders. This appeal followed.
Appellants’ counsel has conceded in argument upon this appeal that the first “cause of action” did not state a claim upon which relief could be granted, and we therefore affirm the judgment of the District Court with respect to this part of the complaint. With respect to the remainder of the complaint, we are hard-pressed to find an abuse of discretion in the court’s dismissal, and do so only because we believe that the interests of justice require that appellants be afforded one more opportunity to conform their pleadings to the court’s orders. Therefore, with respect to the first “cause of action” stated in the complaint, the judgment of the District Court is affirmed, and with respect to the remainder of the complaint, the judgment of the District Court is reversed and the case is remanded with directions to allow appellants leave to amend their complaint to conform specifically to the previous orders of the District Court and to such further requirements as the court in its discretion may direct.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
WAUGH et al. v. SUBURBAN CLUB GINGER ALE CO. et al.
No. 9575.
United States Court of Appeals District of Columbia.
Argued Jan. 21, 1948.
Decided April 26, 1948.
Mr. Leonard S. Melrod, of Washington, D. C., for appellants.
Mr. Wilbert Mclnerney, of Washington, D. C., for appellees.
Before EDGERTON, CLARK, and WILBUR K. MILLER, Associate Justices.
EDGERTON, Associate Justice.
The plaintiff appeals from a judgment on a directed verdict for the defendant in an action for personal injuries. Appellant, a boy of 13 or 14, was riding a bicycle that collided with appellee’s truck. Tbe truck had been standing at a street intersection, only about five feet from the right-hand curb, waiting for a green light. Appellant had ridden up from behind, entered the-space between the standing truck and the curb, and stopped to wait beside the truck’s right rear wheel. He was riding “next to the curb” but the space was so narrow that he was also close to the truck; in fact he put his left hand on it. When the light changed the truck started. Appellant then put his hand back on the handlebar and started his bicycle. The collision occurred, in the street intersection, because (1) the truck made a right turn from its position near the right curb and (2) appellant, from' his position even nearer the right curb, did not make a right turn but went straight ahead into the intersection. When he saw the truck turning he attempted to turn, but too late.
Appellant’s theory is that “the driver of the truck was negligent in making a sharp, sudden turn, in failing to keep a proper lookout, and failing to give a warning or signal of his intention to make a right turn.”'
Ordinarily a vehicle about to make a right turn is not and need not be less-than five feet from the curb. As the truck driver expressed it, “the reason he wasn’t exactly up against the curb was that if he was, he would not have been able to proceed for the right hand turn — he would have run over the curb.” No doubt there was, as appellant said, “space enough to the right of the truck that he could drive his-bicycle in without any trouble.” But getting out of such a space without trouble is-another matter. For a bicyclist to put himself in a position so near a curb on the right, a truck on the left, and an intersection, ahead, and then ride straight forward without waiting to see whether the truck, which, may properly turn right, will do so, is plainly dangerous. Such a course is not so common that reasonable drivers anticipate it, and devise and take special precautions-against it, before making a “sharp, sudden”' turn to the right. In other words appellee’s. driver was not negligent m making the turn without special precautions.
If the driver failed to keep a proper lookout and to give a proper signal, he negligently endangered anyone in a position to benefit by those ordinary precautions. But appellant was not in a position to benefit by them. There is no evidence that a reasonable and proper lookout would have disclosed to the driver of the truck the fact that a boy had ridden a bicycle into the narrow space between the right rear wheel of the truck and the curb. There is no evidence that a reasonable and proper signal, by hand or light or both, of the driver’s intention to turn, could have been seen by a person in appellant’s position. Therefore the precautions the driver is said to have omitted would not have enabled either him or the appellant to avoid the accident. It follows that appellee is not responsible for the accident. The reason may be expressed in terms either of negligence or of causation. The driver’s alleged omissions (a) added nothing to appellant’s danger and therefore were not negligent toward appellant, and (b) did not cause his injuries.
In these circumstances the driver’s possible incompetence to drive is immaterial, and it is therefore immaterial that he had no District of Columbia license. Moreover, he had a North Carolina license. Appellant rightly makes no point of the fact that some trucks have signaling devices visible from the relative position in which appellant was. For there is no evidence that appellee’s truck had such a device or that operating it without one was negligent.
The court’s action in directing a verdict for appellee was therefore correct. We need not consider whether a boy of appellant’s age and capacity was, as an adult would have been, plainly negligent in staking his safety on the chance that a truck standing near a right-hand curb would not make a right turn at an intersection.
Affirmed.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
FRUEHAUF TRAILER CO. v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD v. FRUEHAUF TRAILER CO.
Nos. 7291, 7297.
Circuit Court of Appeals, Sixth Circuit.
June 30, 1936.
Victor W. Klein, of Detroit, Mich. (Thomas G. Long, Rockwell T. Gust, and John C. Bills, all of Detroit, Mich., on the brief), for Fruehauf Trailer.
Stanley Reed and Charles Fahy, both of Washington, D. C. (Thomas I. Emerson, Warner W. Gardner, Charles A. Horsky, Philip Levy, and Garnet L. Patterson, all of Washington, D. C., on the brief), for National Labor Relations Board.
Before MOORMAN, HICKS, and SIMONS, Circuit Judges.
Writ of certiorari granted 57 S. Ct. 119, 81 L. Ed. —.
PER CURIAM.
The National Labor Relations Board has filed a petition in this court to enforce an order issued by it in proceedings which it instituted against the Fruehauf Trailer Company. The order directs the trailer company to cease and desist from discharging or threatening to discharge any of its employees because of their activities in connection with the United Automobile Workers Federal Labor Union No. 19,375, to cease discouraging its employees from becoming members of that union, to offer to certain of its former employees immediate and full reinstatement in their former positions without prejudice to their seniority rights, to make such employees whole for.any losses of pay that they have suffered by reason of their discharge by paying them what they would have earned as wages from the dates of their discharges, and to post notices throughout its Detroit plant, in conspicuous places, stating that it has ceased, and desisted from discharging or threatening to discharge its employees for joining the United Automobile Workers Federal Labor Union No. 19,375. The Fruehauf Trailer Company has filed its petition seeking a review of the order and praying that the court set it aside. The record of the proceeding be-, fore the Labor Board has been filed and the two petitions have been heard together in this court.
The Fruehauf Trailer Company is a corporation organized and existing under the laws of the state of Michigan and is engaged in the manufacture, assembly, and sale of automobile trailers at its plant in Detroit, Mich. The material and parts used in the manufacture and production of the trailers are shipped to the plant. After the trailers are manufactured, many of them are shipped to 'other states for sale and use. The order in question undertakes to regulate and control the trailer company’s relations and dealings with its employees engaged in the production and manufacture of trailers at the company’s plant in Detroit and does not directly affect any of the activities of the trailer company in the purchasing and transporting to its plant of materials and parts for the manufacture and production of trailers or in the shipping or selling of such trailers after they are manufactured. It was issued under the authority of the Act of Congress of July 5, 1935, known as the National Labor Relations Act (29 U.S.C.A. § 151 et seq.). The authority for the act is claimed under the commerce clause of the Constitution. ' Since the order is directed to the control and regulation of the relations between the trailer company and its employees in respect to their activities in the manufacture and production of trailers and does not directly affect any phase of any interstate commerce in which the trailer company may be engaged, and since, under the ruling of Carter v. Carter Coal Company, 56 S.Ct. 855, 80 L.Ed. 1160 (decided May 18, 1936), the Congress has no authority or power to regulate or control such relations between
the trailer company and its employees, the National Labor Relations Board was without authority to issue the order. See National Labor Relations Board v. Jones & Laughlin Steel Corporation (C.C.A.5) 83 F.(2d) 998, decided June 15, 1936.
The petition of the Board is accordingly dismissed and the order is set aside.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_circuit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Flozell JONES, Administrator of the Estate of Dennis Jones, Appellant, v. Keith MARSHALL, Appellee.
No. 55, Docket 74-2545.
United States Court of Appeals, Second Circuit.
Argued Sept. 3, 1975.
Decided Nov. 24, 1975.
Louis I. Parley, West Hartford, Conn. (Bruce C. Mayor, Hartford, Conn., on the brief), for appellant.
Robert Y. Pelgrift, Hartford, Conn., for appellee.
Before SMITH, MANSFIELD and OAKES, Circuit Judges.
OAKES, Circuit Judge:
This appeal presents the question whether a civil rights action lies, under 42 U.S.C. § 1983, against a police officer who, in the course of his duty, shoots and kills a person who has committed a felony and is trying to escape arrest. The crime involved here — auto theft— did not involve conduct threatening use of deadly force; nor was there, at the time of the shooting, substantial risk that the person fleeing arrest would cause death or serious bodily harm to anyone if his apprehension were delayed. The United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, granted the defendant police officer’s motion for summary judgment, holding that the Connecticut common law rule as stated in Martyn v. Donlin, 151 Conn. 402, 198 A.2d 700 (1964), affords a privilege, in the circumstances of this case, to an officer using deadly force who reasonably believes such force is necessary to effect an arrest for a felony. Judge Blumenfeld ruled that since the Connecticut privilege is not unconstitutional, it affords a defense to the § 1983 action for deprivation of the fleeing persons’s life without due process of law. 383 F.Supp. 358 (D.Conn.1974). We affirm.
The parties have stipulated the following facts. On August 29, 1969, Officer Marshall of the West Hartford Police Department was cruising in his patrol car in the ordinary course of his duties. While on patrol he observed a Cadillac automobile occupied by three Negro males, including the appellant’s decedent, Dennis Jones, traveling in the vicinity of the Hartford Golf Club. Through radio contact with headquarters, Marshall received the information that the Cadillac had been reported as stolen, so he began to follow it as it drove through the Golf Club and adjacent streets. Both cars proceeded for several blocks, neither exceeding 35 to 40 miles per hour nor violating any traffic regulations. While following the car Officer Marshall did not activate his siren or warning light or make any attempt to cause the car to come to a stop. He was then informed over his radio that assistance from the Hartford Police Department was on the way.
Evidently the individuals in the Cadillac became aware that they were being followed because after circling back onto Mark Twain Drive from Dillon Road, they accelerated to about 80 miles per hour and drove north on Mark Twain Drive. After traveling several blocks at that speed the car reached the end of the Mark Twain Extension and skidded to a halt. Officer Marshall, who had followed, also came to a sliding stop, and the braking of both cars created a large cloud of dust. The officer alit from his cruiser with his weapon drawn. Since the occupants of the car were not immediately visible he climbed to the top of a nearby embankment. At that point he observed two men running across an open field and called to them to halt. They momentarily turned to face him, but then turned and began to run away toward a nearby wooded area. Without firing a warning shot or attempting any further means of apprehension, Officer Marshall fired his gun at Dennis Jones, who was then about 125 feet away across rough terrain which contained a gully and was covered with bushes and underbrush. The shot was aimed at the decedent’s leg, but struck him in the left buttock, causing internal injuries which resulted in his death. It is stipulated that neither Dennis Jones nor the other two occupants of the car, all of whom were minors approximately 16 years old, were armed or had specifically threatened physical injury in any manner to Officer Marshall or anyone else. It is also stipulated that the automobile pursuit did not endanger any other individual than the occupants, although had the chase continued obviously it might have.
It was agreed by the parties that the law in Connecticut at the time of the shooting in this case was that theft of a motor vehicle was a felony offense, Conn.Gen.Stat. § 53a — 119, but that joyriding was only a misdemeanor, Conn. Gen.Stat. § 14 — 229 (use without owner’s permission). The common law rule in Connecticut is that an arresting officer may use such force as he reasonably believes to be necessary under all of the circumstances to effect a legal arrest and to prevent an escape. The use of force likely to cause death, however, is privileged only if the officer reasonably believes that a felony has been committed by the individual sought to be apprehended and the force used was actually and reasonably believed by him in good faith to be necessary to effect the arrest. See Martyn v. Donlin, supra, 151 Conn. at 411-12, 198 A.2d at 705-06. During a codification and revision of Connecticut’s criminal laws occurring after the facts in this case, the Martyn rule was retained and codified as a part of the Connecticut criminal law.
The appellant’s argument involves two simple steps. First, that in actions brought under the federal civil rights statutes the law to be applied is federal law — while reference may be made to state or other law consistent with the United States Constitution, it is not mandatory, as a matter of choice of law, that state law be applied. Second, federal decisions and modern policy indicate that the federal rule to be applied in actions under the federal civil rights statutes, e. g., 42 U.S.C. §§ 1983, 1985(3), is that use of deadly force is not permissible in the case of any escape where a felony has been committed except in a few limited situations essentially embodied in ALI Model Penal Code § 3.07 (Proposed Official Draft 1962). Appellant argues that the use of force is justifiable “only where the arresting officer believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force, or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.” Id.
Appellant further argues that the common law rule in Connecticut lacks logical support, is based upon historically outmoded concepts of outlawry and trial by ordeal and has been uniformly disapproved by scholars. In contrast, appellant argues, the Model Penal Code rule, which has been adopted in form or substance in a number of states by statute, is consistent with the laws and Constitution of the United States and the needs of law enforcement personnel. He therefore concludes that the rule of the Model Penal Code should be adopted in this case under 42 U.S.C. § 1983.
The appellee’s position is less complex. He assumes that since the challenged law of Connecticut, as expressed in Martyn v. Donlin, supra, and in the new Connecticut Penal Code, is constitutional, in that it does not “shock the conscience,” Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); United States v. Toscanino, 500 F.2d 267, 273 (2d Cir. 1974), or otherwise offend any constitutional principle, it is therefore the applicable rule in the case. This was the position taken by Judge Blumenfeld in his decision below. 383 F.Supp. at 362.
With this view, however, we cannot agree. It has long been understood that in interpreting the scope of § 1983 we are not bound by the state law of torts or the defenses of privilege that law provides. In an unbroken line of Supreme Court cases which includes Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 109-11, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Monroe v. Pape, 365 U.S. 167, 183-87, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the conduct of police officers and other state officials has, both civilly (Monroe, Pier-son, Scheuer) and criminally (Classic, Screws, Williams), been held subject to standards demanded by the Constitution of the United States, regardless of approbation by state law. This is necessarily so because one of the principal purposes underlying the Civil Rights Acts of 1871 and 1875 was to protect individuals against “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law....” United States v. Classic, supra, 313 U.S. at 326, 61 S.Ct. at 1043. See 1 B. Schwartz, Statutory History of the United States: Civil Rights 591-653 (1970 ed.). See generally Monroe v. Pape, supra, 365 U.S. at 173, 81 S.Ct. 473. The phrase in Section 1 of the Act of April 20, 1871, 17 Stat. 13 (known as Civil Rights Act of 1871 and also as “the Ku Klux Act”), as amended, 42 U.S.C. § 1983, which provides for liability, “any... law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding,” makes this patently clear. A state rule of immunity or privilege which allows a state officer to escape liability for a deprivation of “rights, privileges, or immunities secured by the Constitution of the United States” is simply not controlling under 42 U.S.C. § 1983.
At the same time not every tort committed against a private person by an official acting under state law rises to the deprivation of a constitutional right; that is to say, there is no “general federal tort law....” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (interpreting § 1985(3), derived from § 2 of the Act of April 20, 1871, 17 Stat. 13). For exam-pie, state legislators’ immunity, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and judges’ immunity, Pierson v. Ray, supra, 386 U.S. at 553-55, 87 S.Ct. 1213, each established at common law, have survived the enactment of § 1983, The latter, in fact, has been adopted as federal common law. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872). But Pierson v. Ray, supra, 386 U.S. at 555, 87 S.Ct. 1213, points out that police officers never had an absolute and unqualified immunity at common law. In that case the Supreme Court did recognize a limited privilege under § 1983 in a false arrest situation where the arrest was made in good faith under a statute later held unconstitutional. The Court expressly upheld “the defense of good faith and probable cause... available to the officers in the common-law action for false arrest and imprisonment....” 386 U.S. at 557, 87 S.Ct. at 1219. In so doing, the Court looked to “the prevailing view in this country,” citing general sources, such as the Restatement (Second) of Torts § 121 (1965), and 1 Harper & James, The Law of Torts § 3.18 (1956). 386 U.S. at 555, 87 S.Ct. at 1218. It is true that the court in Pierson referred to the expansive language of Monroe v. Pape, supra, 365 U.S. at 187, 81 S.Ct. 473, which states that § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Pierson v. Ray, supra, 386 U.S. at 556, 87 S.Ct. at 1219. The opinion modified that phrase, however, to recognize some affirmative defenses under § 1983, saying “Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.” 386 U.S. at 556-57, 87 S.Ct. at 1219.
So, too, in discussing the qualified immunity of the executive branch of a state government, the Supreme Court has referred to a variety of general sources — English common law and statutes, federal and state cases — to support an immunity which varies with “the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.” Scheuer v. Rhodes, supra, 416 U.S. at 247, 94 S.Ct. at 1692; see also id. at 239 n. 4, 240-49.
While we are, then, not bound by whatever privilege state law may afford to the officer we still are by no means free to elevate whatever view of the privilege we think to be preferable to the constitutional level envisaged by § 1983. Rather, with only the example of Pierson and Scheuer before us we must make a studied attempt to weigh the competing interests in the light of historical and current cases and commentary to arrive at a scope of the privilege to use deadly force in particular instances.
Initially we should point out that we agree with appellant that the problem of determining the appropriate rule of privilege for the use of force by arresting officers is complicated by the fact that the common law rule evolved when only a few crimes were felonies, and all of them involved force or violence (arson, burglary, robbery, rape, murder, manslaughter) and were punishable by death and forfeiture of lands and goods. See ALI, Model Penal Code § 3.07, Comment 3 at 56 (Tent. Draft No. 8, 1958). (“Such rational justification for the common law rule as can be adduced rests largely on the fact that virtually all felonies in the common law period were punishable by death.”) But see Note, Justification for the Use of Force in the Criminal Law, 13 Stan.L.Rev. 566, 572-82 (1961). Many American jurisdictions, Connecticut included, have of course expanded the number of felonies to include numerous crimes not involving force or violence, crimes which relate to property and to compliance with complex governmental regulations (e. g., income tax fraud). As the scope of “felony” crimes has expanded wholly away from the concept of violence which underlay its common law origin, the use of the felony label to justify especially severe police behavior has become increasingly strained. As stated by Judge McCree in his concurring opinion in Beech v. Melancon, 465 F.2d 425, 426-27 (6th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973):
I would find it difficult to uphold as constitutional a statute that allowed police officers to shoot, after an unheeded warning to halt, a fleeing income tax evader, antitrust law violator, selective service delinquent, or other person whose arrest might be sought for the commission of any one of a variety of other felonies of a type not normally involving danger of death or serious bodily harm.
The elementary requirements of a use of force rule under § 1983 must be that it neither permits “brutal police conduct,” Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973), nor allows such “application of undue force” that the police conduct “shocks the conscience.” Johnson v. Glick, 481 F.2d 1028, 1032, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973) (holding that a § 1983 action lies by a prison inmate for an unprovoked attack by a guard). As Judge Friendly pointed out in Johnson, while the oft-quoted language from Rochin gains added content from other language in the opinion, it is not exactly precise. We must analyze such factors as “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort or maliciously or sadistically..” Johnson v. Glick, supra, 481 F.2d at 1033. Judge Friendly’s comments were, to be sure, made in the. course of determining whether a claim was stated rather than whether a privilege existed. However, a privilege, simply stated, is a rule of law exempting one from liability for conduct which would otherwise subject him to it. Restatement (Second) of Torts § 10 (1965). This is no different from saying that privileged conduct is not tortious. See id. Comment a. Thus, whether we approach the case from the standpoint of Judge Friendly in Johnson, where the issue was whether the conduct was tortious, or from the standpoint of privilege, where the issue is whether the conduct is not tortious, the analytical factors must be the same.
We find in this case that a number of legislatures, but few if any courts on their own initiative, have analyzed the factors just discussed and have moderated the harshness of the old common law view. There is, in short, a discernible trend in this century away from allowing the use of deadly force by a police officer in effecting a felon’s arrest. But this trend is not so momentous or compelling as to require us to recognize a § 1983 action to lie in the situation of this case. This is to say that we do not believe that our responsibility to give effect to the important civil rights protected by § 1983 provides us with a sufficient mandate to provide a remedy in this case by rejecting the rule of privilege developed by the state to further its own important objective of enforcing its penal law. The preferable rule would limit the privilege to the situation where the crime involved causes or threatens death or serious bodily harm, or where there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed. But we are not satisfied, given the history and current status of the law of privilege, the ready availability of handguns to the populace at large (including nonviolent felons), and the needs of law enforcement in a society where violence is widespread, that we can or should impose that view through § 1983 as a federal standard to which all states would be subject. We are aware, moreover, that to do so in this case, where the Connecticut Supreme Court has fairly recently (1964) taken the contrary view, a view which has even more recently (1971) expressly been preserved in a legislative recodification of the state criminal law, would be to deny the officer the defense of good faith reliance upon the law of his state.
The question of use of deadly force in preventing escape arises here in the narrow context where there is no belief in its necessity for the protection of the officer or of any innocent third persons. In this context, we find the history of the treatment afforded the officer’s privilege by the American Law Institute to be enlightening. The first Restatement of Torts § 131 (1934) extended that privilege only to arrests for treason or a felony which normally causes or threatens death or serious bodily harm, or which involves the breaking and entry of a dwelling place. Official Comment h to § 131 of the Restatement stated that deadly force was not privileged for every common law felony, that crimes are indiscriminately labeled as felonies or misdemeanors, and that it would “be monstrous to make the privilege depend upon the word used by the legislature in describing the offense or upon the penalty attached to its commission.” This conclusion was felt to be particularly forceful in light of the fact that the force used imperils the suspect as well as the guilty. Id. at 305. This rule of the first Restatement of Torts, which approximates the one advocated by appellant, was, however, overturned by the ALI in 1948. Restatement of the Law, 1948 Supplement, Torts § 131, at 628 et seq. (1949). The revised rule would permit the privilege where the arrest is for treason or any felony which has been committed, if the actor reasonably believes the offense was committed by the other and that the arrest cannot otherwise be effected. The notes of the reporter for the 1948 revision, Professor Eldredge, criticize the reliance by the earlier reporter, Professor Bohlen, on one of three dicta from early American case law. Professor Eldredge flatly states that Comment h of § 131 of the first Restatement (and its accompanying illustrations) has “no authority” to support it. He cites five cases decided since 1926 contrary to § 131, and concludes that “[n]o case has been found which has cited § 131 or which is in accord with it.” Restatement of the Law, 1948 Supplement, supra, at 633. While the reporter to the 1948 revision allows that § 131 of the first Restatement is a “desirable rule of law,” Restatement of the Law, 1948 Supplement, supra, at 634, the revision is necessary in a “Restatement of existing authorities” since “[ejvery case which... decides the question agrees that the original English common law is still the law.” Id., but see note 21 supra. It is in this context that the Model Penal Code was adopted by the American Law Institute in 1962. In this Code there are comments which refer to the common law distinction between felony and misdemeanor crimes for the purpose of determining the scope of the privilege to use deadly force as “manifestly inadequate for modern law.” ALI, Model Penal Code § 3.07, at 56 (Tent. Draft No. 8, 1958). The authors of the Model Penal Code point out the anomaly resulting from juxtaposition of the general rule that deadly force can be used to prevent the commission of a felony only if the felony involves substantial risk to life and limb, e. g., Commonwealth v. Beverly, 237 Ky. 35, 39, 34 S.W.2d 941, 943 (1931), with the rule that such force can be used to obtain an arrest for any felony. In contrast, the Restatement (Second) of Torts § 131 (1965) has simply carried forward the 1948 revision of the original Restatement of the Law of Torts and quotes the comment in the 1948 Supplement without reference to the Model Penal Code.
The American Law Institute’s almost 50 years of consideration of the problem demonstrates that the area in which we are treading is one still characterized by shifting sands and obscured pathways. The leading text, 1 Harper & James, supra § 3.18 (1956), cannot suffice on its own to lead us out of the wilderness. The authors seem to equate the rule for effectuating an arrest with that of retaining custody once properly acquired, id. at 284; see also Restatement (Second) of Torts § 134 (1965), and state that
[i]n the absence of a specific statute the more desirable rule is that only such felonies as threaten death or serious bodily harm will justify the use of deadly force to effect an arrest therefor, and such force may be used only when it reasonably appears that the arrest can be made in no other way.
1 Harper & James, supra, at 284.
While we need not, either to extend or to limit liability, “tie section 1983 to the technicalities of state law,” Street v. Surdyka, 492 F.2d 368, 370 (4th Cir. 1974) (extending privilege of officer), we recognize that actions under § 1983 are to some extent “analogous to tort actions,” Dowsey v. Wilkins, 467 F.2d 1022, 1025 (5th Cir. 1972). Here we are dealing with competing interests of society of the very highest rank — interests in protecting human life against unwarranted invasion, and in promoting peaceable surrender to the exertion of law enforcement authority. The balance that has been struck to date is very likely not the best one that can be. In an area where any balance is imperfect, however, there must be some room under § 1983 for different views to prevail. The Connecticut rule carries with it the defects explicated above; it makes no distinction between felonies and therefore could be argued to involve an element of irrationality. It also creates an anomalous asymmetry to the privilege relating to the use of force for preventing the commission of felonies. Furthermore, it is contrary to the recommendations of the new proposed federal criminal code, see U. S. National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code § 607(2)(d) (1970), and the statute law of one of the other two states in this circuit, New York, N.Y. Penal Law § 35.30(l)(a) (McKinney 1975), although apparently not of the other, 13 Yt.Stat. Ann. § 2305 (1974). This would seem peculiarly to be one of those areas where some room must be left to the individual states to place a higher value on the interest in this case of peace, order, and vigorous law enforcement, than on the rights of individuals reasonably suspected to have engaged in the commission of a serious crime. We do not believe that this approach to interpreting § 1983 hearkens back to the early Supreme Court interpretation of the due process clause which condoned all state procedural rules which were in conformity with “settled usage,” e. g., Twining v. New Jersey, 211 U.S. 78, 101, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Hurtado v. California, 110 U.S. 516, 528, 4 S.Ct. 111, 28 L.Ed. 232 (1884). This approach has been overruled in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and we by no means would employ it here. While the Fourteenth Amendment may require us to make an independent assessment of the fairness of the state rule, however, we are today interpreting § 1983, and within that statute the states must be given some leeway in the administration of their systems of justice, at least insofar as determining the scope of such an unsettled rule as an arresting officer’s privilege for the use of deadly force. Further, in the light of the shifting history of the privilege, we cannot conclude that the Connecticut rule is fundamentally unfair.
All of which would not say that, under the original stipulation of facts, the complaint should have been dismissed, as it was on cross motions for summary judgment. As the facts were originally stipulated there were still four questions of fact to be determined under the Connecticut’s common law rule: (1) whether Marshall actually believed and (2) whether Marshall reasonably believed that Jones was a felony suspect; and, even more importantly, (3) whether Marshall actually believed and (4) also reasonably believed that it was necessary under the circumstances to use deadly force to make the arrest. The absence of any one of these four elements would have rendered the Connecticut privilege unavailable, Martyn v. Donlin, supra. Without our having finally to determine the issue here, any such absence might also have given rise to an action for damages under § 1983. But the original stipulation was amended not once but twice to take these issues out of the case. Thus no factual issues remain. We accordingly affirm the judgment below. So holding we do not need to pass on the troublesome question whether felonious theft of an automobile resulting in a high-speed chase in a rural area creates or under a given set of circumstances could create a “substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.” See ALI, Model Penal Code § 3.07(2)(iv)(2) (proposed official draft 1962). Even were we to hold that § 1983 incorporated the Model Penal Code rule it is far from certain whether the appellant would prevail at a trial on the merits.
Judgment affirmed.
. The action originally named the Town of West Hartford and its police chief and town manager, but the action was dismissed as to them. Cf. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).
. It may be noted that both of the young men in the car with Dennis Jones were arrested by the Hartford police on the day following the auto theft and shooting. Neither was charged with a felony; the charge against one was ultimately dropped and the other pleaded guilty to a misdemeanor charge and received a suspended sentence.
. It does not appear from the stipulation whether Jones was the driver or a passenger of the Cadillac. Nor does it appear what his age was, although appellants brief states that he was 16 years old. It also does not appear what caliber revolver Officer Marshall was using or the extent of his training in marksmanship.
. Larceny of any automobile is now a “Class D” felony. Conn.Gen.Stat. § 53a-123. Under a complicated formula set forth in Conn.Gen. Stat. § 53a-35(b)(4), Class D felonies carry a maximum sentence of five years. While the parties stipulated that the offense was a felony at the time of the shooting, the stipulation erroneously refers to Conn.Gen.Stat. § 53a-47, a provision dealing with acquittal on grounds of mental disease or defect. The crime was, however, a felony under Conn.Gen.Stat. § 53a-57. See State v. Keeby, 159 Conn. 201, 268 A.2d 652 (1970), cert. denied, 400 U.S. 1010, 91 S.Ct. 569, 27 L.Ed.2d 623 (1971). The automobile theft provision in the Connecticut code now appears as Conn.Gen.Stat. § 53a-119.
. Conn.Gen.Stat. § 53a-25(a) defines a felony as an offense “for which a person may be sentenced to a term of imprisonment in excess of one year....” The statute also provides that any offense defined in any other section of the Connecticut General Statutes which'“by virtue of any expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified felony.” Id. § 53a-25(c). Since “joyriding” is punishable by a prison sentence of up to one year for a first offense, up to 10 years for a second offense and up to 15 years for a third offense, id. § 14-229, it is somewhat of a hybrid for the purpose of making this classification. However, as to first offenses, unauthorized use of a motor vehicle would appear to constitute only a misdemeanor. See id. § 53a-26(c).
. At least as of 1974, the Connecticut State Police Rules §§ 20-29 limit the use of deadly force to two situations: (1) where the felony is one involving risk of serious bodily harm and (2) where there is a risk that the felon’s efforts to escape will cause harm to the officer or others. Apparently the West Hartford Police Department had issued a Training Bulletin (Oct. 27, 1967), directing officers not to shoot at a motor vehicle (or presumably its occupants) except in those limited circumstances. It does not appear from the stipulation of facts, however, whether Officer Marshall was aware of this Bulletin or of the extent of its effect.
. Conn.Gen.Stat. § 53a-22 provides in part:
(a) For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of physical force to make an arrest or to prevent an escape from custody. A peace officer or an authorized official of the department of correction who is effecting an arrest pursuant to a warrant or preventing an escape from custody is justified in using the physical force prescribed in subsections (b) and (c) unless such warrant is invalid and is known by such officer to be invalid.
(b) Except as provided in subsection (a), a peace officer or authorized official of the department of correction is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes it necessary to:
(1) Effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense, unless he knows that the arrest or custody is unauthorized; or
(2) defend himself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.
(c) A peace officer or authorized official of the department of correction is justified in using deadly physical force upon another person for the purposes specified in subsection (b) only when he reasonably believes that such is necessary to:
(1) Defend himself or a third person from the use or imminent use of deadly physical force; or
(2) effect an arrest or to prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony.
. The ALI Model Penal Code § 3.07 (Proposed Official Draft 1962) makes the following proposal for the use of force in law enforcement:
(1) Use of force justifiable to effect an arrest. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.
(2) Limitations on use of force.
(a) The use of force is not justifiable under this Section unless:
(i) the actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and
(ii) when the arrest is made under a warrant, the warrant is valid, or believed by the actor to be valid.
(b) The use of deadly force is not justifiable under this Section unless:
(i) the arrest is for a felony; and
(ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a police officer; and
(iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and
(iv) the officer believes that:
(1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or
(2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.
. The claim is also made that the Connecticut rule violates the due process clause of the Fourteenth Amendment becáuse, procedurally speaking, it permits the arbitrary imposition of death by the officer, violates the presumption of innocence, and denies the suspect a right to trial by jury. Of course each of the due process arguments would apply equally where deadly force is allowed to effect an arrest for a crime which does involve “conduct including the use or threatened use of deadly force” or where “there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.” ALI, note 8 supra, § 3.07(b)(iv). The killing by the police officer in such a case would, as much as the killing here, deprive
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_respond1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Frederick A. CARTER, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, Appellee.
No. 86-1063.
United States Court of Appeals, Third Circuit.
Submitted Pursuant To Third Circuit Rule 12(6) Aug. 28, 1986.
Decided Nov. 6, 1986.
Frederick A. Carter, pro se.
Howard R. Flaxman, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellee.
Before GIBBONS, WEIS, and MARIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
The plaintiff’s complaint alleges racial discrimination in his employment termination by defendant. The suit was dismissed by the district court because plaintiff’s lawyer failed to comply with a discovery order. We agree with the district judge that counsel has “exhibited, on the record, blatant disregard for explicit orders.” We conclude, nevertheless, that sanctions should have been imposed on the attorney personally rather than denying plaintiff the opportunity to present his case on the merits.
On May 31,1985, the district court directed that plaintiff submit within twenty days his then overdue answers to the defendant’s interrogatories. The plaintiff’s lawyer did not file the answers within that time, and on June 24, 1985, defendant asked that the case be dismissed pursuant to Fed.R.Giv.P. 37. The plaintiff’s counsel did not respond to this motion; on July 18, 1985, the district judge dismissed the action.
In the interim, the plaintiff’s lawyer had failed to appear at a pretrial conference scheduled for June 13, 1985. She gave as an excuse her error in calendaring the conference for 9:30 a.m., (which was when she arrived) rather than 9:00 a.m., the time set by the court. The district court assessed counsel a sanction of $150 for her dereliction. Four days later she sent a letter to the district judge apologizing for her error and asking that the sanction be remitted.
On December 13, 1985, the plaintiff’s lawyer filed a motion under Fed.R.Civ.P. 60(b) to reinstate the complaint. Attached to the motion were answers to the interrogatories which apparently had been served on defendant. Also attached was a copy of a money order, dated November 1, 1985, in the amount of $150 made payable to the defendant’s attorney.
The district judge denied the motion on December 30, 1985, noting the five-month delay which plaintiff had explained by “vague and unsubstantiated claim that he personally had not learned of the dismissal until September, 1985.” More important, however, the court found counsel's explanation for her failure to file the discovery answers “incredible.” The judge also characterized the lawyer’s disregard of the May 31, 1985 order as “inexcusable.”
On January 9, 1986, plaintiff acting pro se filed a motion for reconsideration and for dismissal of his attorney. He alleged that in June 1985 his lawyer had misled him into believing that she had complied with the discovery request, and that he had not learned of the suit’s dismissal until September 26, 1985, when he checked the docket in the clerk’s office. He charged his counsel with being derelict in not promptly requesting reconsideration of the July 18, 1985 dismissal order. He had insisted that his counsel take steps to remedy the situation, but when she prepared a petition, it proved to be inadequate under Rule 60(b). Plaintiff described his counsel’s conduct as “abandonment,” and noted that he had paid $400 as a fee. Because of his financial straits, plaintiff said he had not been able to retain other counsel.
The district court denied the pro se motion, remarking that even after becoming aware of his lawyer’s misdeeds, plaintiff nevertheless entrusted her with filing the Rule 60(b) motion, rather than acting on his own at that time.
We understand and appreciate the district judge’s feelings when his efforts to move his docket expeditiously were frustrated by the inexcusable conduct of the lawyer. She consistently failed to meet her obligations in timely fashion with but one exception. When she was ordered to pay $150 of her own funds, she promptly wrote to the district judge asking for reconsideration. Even in that instance, she utilized a letter rather than a motion, the appropriate district court procedure.
We review the district court’s order under an abuse of discretion standard, recognizing the superior opportunity for the trial judge to assess the challenged conduct. See Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77 (3d Cir.1982).
Nevertheless, we have vacated a dismissal when a client was victimized by his attorney’s extreme negligence. In Boughner v. Secretary of Health, Education & Welfare, 572 F.2d 976 (3d Cir.1978), we directed relief under Rule 60(b) where plaintiff had suffered a default judgment because his attorney had displayed “neglect so gross that it is inexcusable.” Id. at 978. We observed that Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), upheld the dismissal of an action because of counsel’s delinquency on the reasoning that the client was liable for the acts of the lawyer whom he had retained.
In Link, the Supreme Court concluded that because the plaintiff had voluntarily chosen the attorney to represent him in the action, he could not later avoid the consequences of the acts or omissions of this “freely selected agent.” 370 U.S. at 633-34, 82 S.Ct. at 1390. Although the Court declared a party to be bound by his counsel’s acts, it noted that the aggrieved party never availed himself of a corrective remedy such as the “escape hatch provided by Rule 60(b).” Id. at 632, 82 S.Ct. at 1390. Link did not decide whether it would have been an abuse of discretion to deny a Rule 60(b) motion, since none had been filed. Id. at 635-36, 82 S.Ct. at 1391-92. Compare Link with Boughner, 572 F.2d at 978, which held that under its particular facts, appellants were not bound by their attorney’s actions for the purposes of Rule 60(b).
Although the Link principle remains valid, see National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976), we have increasingly emphasized visiting sanctions directly on the delinquent lawyer, rather than on a client who is not actually at fault. See Matter ofMacMeekin, 722 F.2d 32, 35 (3d Cir.1983).
As we said in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 869 (3d Cir.1984), “[dismissal must be a sanction of last, not first, resort.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339 (3d Cir.1982) followed the same theme. There we emphasized the failure of the district court to consider the imposition of some lesser sanction than dismissal with prejudice.
In Scarborough v. Eubanks, 747 F.2d 871 (3d Cir.1984), we discussed some of the factors a district court should weigh in considering whether to dismiss a complaint as a sanction. Although not exhaustive, the court should review (1) the extent of the party’s personal responsibility; (2) a history of dilatoriness; (3) whether the attorney’s conduct was willful and in bad faith; and (4) the meritoriousness of the claim. Id. at 875.
The record before us provides no basis for assessing the merits of the plaintiff’s claim, but the absence of his personal responsibility for his attorney’s behavior seems clear. The attorney’s conduct, although perhaps not in bad faith, was flagrant and deserving of sanctions.
The Court of Appeals for the Fourth Circuit acknowledged the serious dilemma posed by the allocation of responsibility between an attorney and her client for dilatory or contumacious conduct in Universal Film Exchanges, Inc. v. Lust, 479 F.2d 573 (4th Cir.1973): “The more Boeotian and flagrant we deem counsel's conduct in the case, the greater is his professional negligence; correspondingly, the behavior becomes less ‘excusable’ under Rule 60(b)(1). On the other hand, the more indefensible the attorney’s behavior, the greater is one’s natural sympathy for the ultimate victim— the client.” Id. at 574.
Although an action for malpractice is a possibility when a lawyer’s negligence results in dismissal, that remedy does not always prove satisfactory. It may be difficult for the client to obtain and collect a judgment for damages. Perhaps more importantly, public confidence in the administration of justice is weakened when a party is prevented from presenting his case because of the gross negligence of his lawyer who is, after all, an officer of the court. As we pointed out in Poulis, this remedy “would only multiply, rather than dispose of litigation.” 747 F.2d at 867.
We think it critical that the importance of an attorney’s professional responsibility for his client’s interest be brought home to the erring lawyer quickly and unmistakably. Allowing derelictions to await possible punishment through lengthy malpractice litigation or disciplinary board proceedings is not likely to be effective in deterring future misconduct. Consequently, we do not favor dismissal of a case when the attorney’s delinquencies — not the client’s— necessitate sanctions.
On the record before us, plaintiff acted reasonably in pressuring his lawyer to file his 60(b) motion before taking action himself. When the petition proved to be unsuccessful, he acted promptly in proceeding pro se. Not only the court, but the client, was treated unfairly by the lawyer; plaintiff should not shoulder the burden of this incompetence alone.
We conclude that the complaint in this case should be reinstated and plaintiff given a reasonable time to secure new counsel or proceed pro se.
Defendant also has suffered some financial detriment in the expenditure of fees because of the negligence of plaintiff’s counsel. That loss may be reimbursed in whole or in part by the imposition of sanctions on the plaintiff’s lawyer personally. The district court should assess these sanctions in an amount deemed to be reasonable under all the circumstances.
The order of the district court will be vacated and the case remanded with directions to reinstate the complaint and impose appropriate sanctions on the plaintiff’s counsel. Each party will bear its own costs, subject however to reallocation at the discretion of the district court in imposing sanctions on the plaintiff’s attorney.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_respond1_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Appellant, v. John P. ROONEY, Jr., Defendant-Appellee.
No. 240, Docket 92-1229.
United States Court of Appeals, Second Circuit.
Argued Oct. 9, 1992.
Decided Feb. 18, 1993.
Paul D. Silver, Asst. U.S. Atty. (Gary L. Sharpe, U.S. Atty., of counsel, for the N.D. of N.Y., Albany, NY), for appellant.
Edward M. Shaw, New York City (Still-man, Friedman & Shaw, P.C.) for defendant-appellee.
Before: VAN GRAAFEILAND, PRATT, WALKER, Circuit Judges.
WALKER, Circuit Judge:
In a three-count indictment filed May 8, 1991, John P. Rooney, Jr. was charged in Counts I and II with violations of 18 U.S.C. § 1001 (false statements to the government) and in Count III with violating 18 U.S.C. § 666 (solicitation of a bribe). In an order dated March 20, 1992, the United States District Court for the Northern District of New York (Cholakis, J.) dismissed Count III on the ground that the jurisdictional element of 18 U.S.C. § 666, which requires an organization to receive $10,000 in Federal “benefits” within a twelvemonth period had not been satisfied. Count III alleged as a jurisdictional predicate the receipt from the federal government of loans in excess of $10,000. But, the district court held that “benefits” within the meaning of § 666 do not include government loans. Since we hold that government loans may constitute “benefits” under § 666, we reverse the order of the district court and reinstate Count III of the indictment.
BACKGROUND
There is no dispute as to these basic facts. Rooney is the general partner of Dawnwood Properties (“Dawnwood”). In 1978, Dawnwood applied to the Farmers Home Administration (“FmHA”) for a loan to construct a rural senior citizens’ housing project. In 1985, the FmHA advanced loan proceeds to Dawnwood which began construction on the project. As of 1990, Dawnwood had not yet finished the project and it owed the general contractor, Debrino Associates, a substantial sum of money for work already completed. Rooney agreed to apply to the FmHA for an additional $300,000 loan beyond the $1.5 million borrowed to that date, but only if Debrino Associates promised to build a pond on the property adjacent to the project land without extra cost. Rooney’s proposal to Debrino Associates is the subject of Count III which charged that the proposal was a bribe solicitation in violation of 18 U.S.C. § 666.
Before the trial, Rooney moved pursuant to Fed.R.Crim.P. 7 and 12 to dismiss Count III on jurisdictional grounds. Count III alleged as its jurisdictional predicate that Dawnwood was “an organization that received Federal assistance in the form of loans in excess of $10,000 during the one year period commencing on February 6, 1989 and ending on February 5, 1990.” However, Rooney argued, inter alia, that government loans could not be “benefits” within the meaning of 18 U.S.C. § 666 and therefore the jurisdictional requirement of § 666 was not met.
On March 20, 1992, the district court agreed with Rooney and dismissed Count III. The court held that Dawnwood, the recipient of Federal loans totalling $1.5 million, had not received a “benefit” as required by § 666.
DISCUSSION
Title 18, U.S.C. § 666 provides in pertinent part:
(a) Whoever, if the circumstances described in subsection (b) of this section exists—
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—
(A) ...
(B) corruptly solicits or demands for the benefit of any person ... anything of value from the person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization ... involving anything of value of $5,000 or more ...
******
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
18 U.S.C. § 666.
The sole question presented by this appeal is whether a loan can be a “benefit” within the meaning of § 666(b) so as to bring this case within the Federal court’s jurisdiction. If so, Dawnwood received such benefits and the jurisdictional requirement of § 666(b) is satisfied. The district court, in answering this question in the negative, relied on United States v. Stewart, 727 F.Supp. 1068, 1070 (N.D.Tex.1989) and United States v. Webb, 691 F.Supp. 1164, 1169 (N.D.Ill.1988), which concluded that § 666(b) does not apply when the government receives something in return for its money—a situation of quid pro quo. The district court accepted Rooney’s contention that the loan repayment plus interest constitutes such a quid pro quo, and therefore, a loan may not be considered a benefit for purposes of § 666(b). We disagree.
In evaluating the scope of a Federal criminal statute, we must look closely at its language, legislative history, and purpose. Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985); United States v. Hong-Liang Lin, 962 F.2d 251, 253 (2d Cir.1992). The Supreme Court directs, us to use restraint in interpreting Federal criminal statutes based “ ‘on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.’ ” Dowling, 473 U.S. at 214, 105 S.Ct. at 3131 (quoting United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37 (1820)).
1. Statutory Language
The statutory language does not support Rooney’s interpretation. To fall within § 666(b), an organization must “reeeive[], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.” 18 U.S.C. § 666(b). The district court stated that the statute does not expressly equate a “benefit” with a loan, and “merely provides that the Federal program from which the ‘benefit’ is received may involve a loan.” (emphasis in the original).
Common sense suggests that the “benefit” from a program which involves a loan would be the loan itself. Webster defines the word “benefit,” inter alia, as “advantage.” Webster’s Ninth New Collegiate Dictionary, 144 (1990). Rooney’s receipt of the loan afforded him an “advantage” since it allowed him to build a senior citizens’ housing project and hopefully make a profit.
The statute expressly equates “benefits” with “Federal assistance.” Federal statutes commonly include loans within the rubric of “Federal assistance.” For example, the Civil Rights Act, which prohibits discrimination under any Federally assisted programs, 42 U.S.C. § 2000d, specifically includes loans within its definition of financial assistance. See 42 U.S.C. § 2000d-l. In the statute we are examining, Federal programs “involving a grant, contract, subsidy, loan, guarantee, insurance” are a subset of “form[s] of Federal assistance,” which therefore demonstrates that Congress considered a loan a benefit, even if Rooney does not.
Rooney contends that loan proceeds are not “benefits,” since the borrower must agree to repay them, and argues that a loan can be a “benefit” only if it affords the recipient a direct economic advantage such as a reduced interest rate. This interpretation of the statute would create an anomaly: Federal jurisdiction would depend on the daily interest rate. A loan granted at a lower interest rate than the market commanded would be a benefit. But the loan would cease to be a benefit if the market rate dropped below the interest rate of the loan. The jurisdictional reach of § 666 would thus hinge upon national economic conditions and would be turned on and off by interest rate fluctuations.
2. Legislative History
Apart from its lack of support in the language of § 666, Rooney’s interpretation is inconsistent with the provision’s legislative history. Congress enacted § 666 as part of the Comprehensive Crime Bill of 1984, and stated that the provision was “designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations or State and local governments pursuant to a Federal program.” S.Rep. No. 225, 98th Cong., 2d Sess. 369 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510 (hereinafter S.Rep.). The principal policy objective behind § 666 is to “protect the integrity of the vast sums of money distributed through Federal programs.” Id. at 3511. To this end, the Senate Judiciary Committee Report accompanying the statute states that the “[cjommittee intends that the term ‘Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance, or another form of Federal assistance’ be construed broadly.” Id.
The Senate Report states, however, that “not every Federal contract or disbursement of funds would be covered”, and exempts from § 666 instances in which, for example, “a government agency lawfully purchases more than $10,000 in equipment from a supplier.” Id. The district courts in United States v. Stewart, supra, and United States v. Webb, supra, seized upon this language in the Senate Committee Report to preclude § 666 from applying to all situations in which the government receives a tangible material return from its funds. Stewart, 727 F.Supp. at 1070; Webb, 691 F.Supp. at 1169. However, in light of the statute’s purpose, we think that Congress only intended to exclude money spent by the government as a commercial entity, such as payments for supplies or equipment. Stewart is consistent with this reading since that case involved a defense contractor that supplied custom-made goods to the government, which in essence is a purchase of equipment from a supplier. 727 F.Supp. at 1070.
The Webb court held that funds paid by the Department of Housing and Urban Development (“HUD”) to a private accounting firm to manage and administer a Federal program were not § 666(b) benefits. Rather, the Webb court held, the funds were “monies paid in consideration for its services.” 691 F.Supp. at 1169. While we express no opinion as to what the result in Webb should have been, we believe that the Webb court’s construction of the limitation on “benefit” was broader than the facts of that case required, broader than Congress intended, and contrary to the stated purpose of § 666. As we have noted, § 666 was designed to protect the integrity of funds distributed through Federal programs. S.Rep. at 3510. The Senate Report targeted the application of the statute to monies distributed through “Federal programs” for which there is “a specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives.” Id. at 3511. The Report enumerated three cases to illustrate situations § 666 is intended to include: United States v. Hinton, 683 F.2d 195 (7th Cir.1982), aff’d sub nom. Dixson v. United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984) (involving bribery by an employee of non-profit corporation with contract to administer HUD funds); United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) (involving bribery by a State administrator of funds from CETA program); and United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (involving bribery of city employees administering funds from HUD program). S.Rep. at 3511. In each of these cases, the organization or city agency provided the Federal government with a service by administering a government program. Thus, the holding in Webb is in conflict with the legislative history.
We find that the district court’s focus on whether the Federal government receives something of value for its funds is misplaced. The inquiry is not whether there is a quid pro quo, but, rather, whether the funds disbursed can be considered Federal assistance within a specific statutory scheme intended to promote public policy objectives and not payments by the government as a commercial entity.
As discussed above, loans are a common vehicle for distributing Federal assistance. Rooney received the loans from the FmHA pursuant to Section 515 of the Housing Act of 1949, codified at 42 U.S.C. § 1485. Section 1485(a) authorizes loans to provide housing for “elderly or handicapped persons or families of low or moderate income or other persons and families of low income in rural areas____” The FmHA granted Dawnwood the loan to construct rural low-income housing. Therefore, the funds Rooney received from the Federal government were authorized according to a statutory scheme in order to promote Congress’s public policy objective of providing low-cost rural housing, and are exactly the type of monies Congress intended to protect when it enacted § 666. We hold that Dawnwood received a benefit from the FmHA loans under § 666(b). Accordingly, the statute’s jurisdictional requirement is satisfied as to Rooney.
CONCLUSION
We reverse the order of the district court and reinstate Count III of the indictment.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Larry Lee WHITE, a/k/a Felix Idleburg, Appellant. UNITED STATES of America, Appellee, v. Doris WADE a/k/a Janice Handson, Appellant.
Nos. 88-2457, 88-2458.
United States Court of Appeals, Eighth Circuit.
Submitted June 12, 1989.
Decided Nov. 28, 1989.
Rehearing and Rehearing En Banc Denied in No. 88-2457 Feb. 22, 1990.
Charles E. Polk, Jr., St. Louis, for White.
James Delworth, St. Louis, for Wade.
James K. Steitz, Asst. U.S. Atty., St. Louis, for appellee.
Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSON, Senior District Judge.
The HONORABLE WILLIAM C. HANSON, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation.
HANSON, Senior District Judge.
Appellees White and Wade appeal their conviction by jury of drug related crimes. The two were tried together in a conspiracy case before the Honorable George F. Gunn. White presents four causes for reversal. He argues that: (1) the trial court improperly allowed the use of “drug courier profiles” as substantive evidence of guilt; (2) the trial court erred in denying his motion for severance of trials; (3) the government improperly commented on his failure to testify; (4) the sentencing guidelines were unconstitutional in their application to this case. Wade joins in the challenges of the use of the “drug courier profiles” and the constitutionality of the sentencing guidelines. She also challenges the admissibility of evidence used at trial as the fruit of an illegal search. The court, for the reasons discussed below, finds all of the challenges without merit and affirms the convictions. We first address the common challenges.
Constitutionality of Sentencing Guidelines
Appellants challenge the constitutionality of the sentencing guidelines as: a violation of the separation of powers doctrine; a violation of their due process rights; and a violation of the presentment clause. Appellants’ separation of power challenges were rejected by the Supreme Court in Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Appellants’ due process challenges were rejected by this court in United States v. Barnerd, 887 F.2d 841, 842 (8th Cir.1989), United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989) and United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989). The presentment clause challenge was also rejected in Barnerd. At 842. Accordingly, we reject the challenges of appellants on this issue.
Drug Courier Profiles
Appellants’ allegations that “drug courier profiles” were used during the trial as substantive evidence of guilt raises a troublesome issue for the court because such profiles “are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers.” United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.1983). As noted by the Hernandez court:
Generally, the admission of this evidence is nothing more than the introduction of the investigative techniques of law enforcement officers. Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officers in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting an investigation. Although this information is valuable in helping drug agents to identify potential drug couriers, we denounce the use of this type of evidence as substantive evidence of a defendant’s innocence or guilt.
Id. at 555. Additionally, the profile has a “chameleon-like way of adapting to any particular set of observations.” United States v. Sokolow, — U.S. -, 109 S.Ct. 1581, 1588, 104 L.Ed.2d 1 (1989) (Marshall, J., dissenting).
However, it is also well established that it is within a federal court’s discretion to allow law enforcement officials to testify as experts concerning the modus operandi of drug dealers and other criminals in areas concerning activities which are “not something with which most jurors are familiar.” United States v. Daniels, 723 F.2d 31, 33 (8th Cir.1983) (trial court’s allowance of testimony by expert that drug dealers often register their cars and apartments in names of others not an abuse of discretion); United States v. Scavo, 593 F.2d 837, 844 (8th Cir.1979) (trial court’s allowance of testimony concerning nature of gambling operations, gambling terminology and opinion as to defendant’s role in operation not an abuse of discretion). The trial court’s discretion to allow such testimony arises from Fed.R.Evid. 702 which “allows a qualified witness to testify in the form of an opinion if the witness’s specialized knowledge will help the factfinder to understand the evidence or determine a fact in issue.” Daniels, 723 F.2d at 33. Such testimony, however, is “subject to exclusion under Rule 403 if its probative value is substantially outweighed by the risks of unfair prejudice.” Id. In making the Rule 403 determination we give “great deference to the district judge, who saw and heard the evidence.” Id.
We find that the challenged testimony, prejudicial by its nature, was probative in explaining the modus operandi of the crimes defendants were charged with. It was not simply an introduction of a drug courier profile as substantive evidence of guilt. “Thus, the question becomes one of balance” and one in which we must give the trial court “great deference”. Id. In making this balance we find it relevant that defendants’ guilt was clearly and overwhelmingly established by the remaining evidence in the record, making the modus operandi evidence of little significance. Accordingly, we are unwilling to find that the district court so abused its discretion as to warrant a reversal of the conviction. This finding does not indicate any belief that the district court followed the best course in admitting all of the evidence that was admitted, or that we favor admission of such evidence in general. Instead we merely find that in this case there was no clear abuse of discretion and that appellants’ challenges on this ground must fail.
The Bathroom Search
We turn next to appellant Wade’s assertion that she was subjected to illegal searches while occupying restrooms at the airport. The first of these searches occurred shortly after Wade had deplaned from her flight to Los Angeles when a female officer followed her into an airport restroom. Once in the restroom Wade entered one of the stalls and the officer observed what she could of Wade’s actions through a gap between the bathroom stall door and the bathroom stall wall. The officer made her observations from the common area of the restroom by looking through the gap from a distance, and by looking through the gap via the reflections of the bathroom mirror. She did not position herself in any way that would be unexpected by someone using the restroom. Specifically, she did not peer in “knothole fashion” through the gap. Nor did she look under or over the bathroom stall door.
The court finds that the observations made by the officer were not an illegal search in this case because they were not a violation of any reasonable expectations of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A bathroom stall, such as at issue here,
does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded, i.e., to the extent that defendant’s activities were performed beneath a partition and could be viewed by one using the common area of the restroom, the defendant had no subjective expectation of privacy, and, even if he did, it would not be an expectation which society would recognize as reasonable.
People v. Kalchik, 160 Mich.App. 40, 407 N.W.2d 627, 631 (1987). Thus, although Wade could reasonably expect a significant amount of privacy in the bathroom stall, this expectation was not violated in this case because the design of the stall allowed the officer to make her observations without placing herself in any position that would be unexpected by an occupant of the stall.
The second search occurred when Wade entered a second bathroom after conversing with co-defendant White. In this instance an officer knocked the bathroom door open after Wade failed to respond to a demand to open the door. This demand was made based on the officer’s conclusion that Wade was in the process of destroying evidence.
The court finds that there was probable cause for the officer’s action in the second bathroom and that the seizure of the cocaine in the bathroom was valid as incident to Wade’s arrest. The evidence at trial and at a hearing on a motion to suppress establish that it was reasonable to assume that Wade was involved in illegal activity and was in the process of trying to destroy evidence in the bathroom. The court incorporates by reference the analysis of Magistrate Carol Jackson’s June 20, 1989 report and recommendation on this point. Accordingly, this challenge is also denied.
The Government’s Comment on White’s Silence
White's allegation that the trial court should have declared a mistrial because of the government's comment on his failure to testify is also without merit. The challenged comment consisted of the government's statement during closing argument that "{y]ou didn't hear why Larry White used the word-the name Idleburg." White's counsel immediately objected to this statement as an inappropriate comment on White's failure to testify. The trial court sustained the objection and instructed the jury to disregard the comment. This is not sufficiently prejudicial to warrant a mistrial. It had little cumulative effect when viewed in context of the entire trial, the trial court took curative actions, and there was an abundance of properly admitted evidence establishing defendant's guilt. See United States v. Dougherty, 810 F.2d 763, 767-68 (8th Cir.1987).
The Denial of Severance
White’s assertion that the trial court committed reversible error by not severing his and Wade’s trials is similarly unconvincing. Rule 8(b) of the Federal Rules of Criminal Procedure permits join-der of defendants when the defendants are alleged to have participated in the same act or transaction or the same series of acts or transactions constituting an offense or offenses. Further, it is a general rule that persons charged with conspiracy should be tried together, particularly in cases such as this “where proof of the charges against the defendants is based upon the same evidence and acts.” United States v. Lee, 743 F.2d 1240, 1248 (8th Cir.1984). White has presented no convincing reason why this general rule is inapplicable to this case. Thus, severance was not necessary.
Conclusion
We affirm the convictions.
. Justice Marshall documented this chameleon-like nature with the following listing of some of the "drug courier” characteristics relied upon in various cases:
Compare e.g., United States v. Moore (suspect was first to deplane), with United States v. Mendenhall (last to deplane), with United States v. Buenaventure-Ariza (deplaned from middle); United States v. Sullivan (one-way tickets), with United States v. Craemer (roundtrip tickets), with United States v. McCaleb (non-stop flight), with United States v. Sokolow (changed planes); Craemer, supra (no luggage), with United States v. Sanford (gym bag), with Sullivan, supra (new suitcases); United States v. Smith (traveling alone), with United States v. Fry (traveling with companion); United States v. Andrews (acted nervously), with United States v. Himmelwright (acted too calmly).
Sokolow, 109 S.Ct. at 1588-89 (citations omitted) (Marshall, J., dissenting).
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_treat
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellant, v. Charles W. BARTLETT, Trustee et al., Defendants, Appellees.
No. 6940.
United States Court of Appeals First Circuit.
Nov. 8, 1967.
Richard L. Seegel, Assistant Atty. Gen., with whom Elliot L. Richardson, Atty. Gen., was on brief, for appellant.
Sumner H. Babcock, Boston, Mass., with whom Bingham, Dana & Gould, Boston, Mass., was on brief, for Charles W. Bartlett, Trustee of the Boston and Providence Railroad Corporation, appellee.
Robert G. Bleakney, Jr., Boston, Mass., with whom James Wm. Moore, New Haven, Conn., Robert W. Blanchette, New Haven, Conn., and Sullivan & Worcester, Boston, Mass., were on brief, for Richard Joyce Smith and William J. Kirk, Trustees of the Property of the New York, New Haven and Hartford Railroad Company, appellees.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
This appeal is from a declaratory judgment of the district court holding that appellant, the Commonwealth of Massachusetts, could not take by eminent domain certain railroad property in the “exclusive jurisdiction” of the district court by virtue of section 77 reorganization proceedings, 11 U.S.C. § 205, without first obtaining the consent of the Interstate Commerce Commission and the district court, neither of which had been sought. At the opening of the oral argument appellant waived its objections to the first of these rulings and expressly conceded the necessity of receiving the consent of the Commission. We consider, accordingly, only the other issue, except that we will observe that we believe appellant’s concession to have been well-advised. 49 U.S.C. § 1(18). Cf. Thompson v. Texas Mexican Ry., 1946, 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132; New Orleans Terminal Co. v. Spencer, 5 Cir., 1966, 366 F.2d 160, cert. denied, 386 U.S. 942, 87 S.Ct. 974, 17 L.Ed.2d 873. With respect to the public interest in interstate transportation, the federal government stands supreme.
The property involved is owned in fee by the Boston & Providence Railroad, which has been in reorganization in the district court for the District of Massachusetts since 1938. At the present time a plan of reorganization has been approved by the court, In re Boston & P.R.R., D.Mass., 1966, 260 F.Supp. 415, appeal dismissed for want of prosecution, March 29, 1967, and is being submitted to creditors and stockholders for confirmation. The property appellant seeks to condemn is part of a right of way which, under the plan, is to be transferred to the New York, New Haven & Hartford Railroad, a substantial creditor. All of this right of way is presently used for railroad purposes by the New Haven in accordance with section 77(c) (6) of the Bankruptcy Act. The portion the Commonwealth wishes to take runs south from Boston about seven miles and has two shorter lines of the New Haven and various sidings running off it. The proposed taking would preclude a railroad operation. Appellee Bartlett is the trustee in reorganization of the Boston & Providence.
The district court asserted the need for its consent simply and succinctly,
“Section 77(e) [st'e] of the Bankruptcy Act provides that during the pendency of the reorganization proceedings and for the purposes thereof, this court shall have exclusive jurisdiction of the debtor and its property wherever located. Under this section this court has the power to protect the property within its jurisdiction from interference by suits in other courts and the consent of this court is a jurisdictional prerequisite to the maintenance of any such action.” 266 F. Supp. at 392.
“ * * * Bankruptcy administration, including reorganization, is a paramount national function which takes precedence over conflicting provisions of the constitution or laws of any state.” 266 F.Supp. at 393.
It is true that section 77(a) provides that the court shall have “exclusive-jurisdiction of the debtor and its property wherever located, * * * ” but the court failed, at least overtly, to consider the qualifying phrase, “during the pend-ency of the proceedings under this section and for the purposes thereof,” (emphasis ours). In view of this limitation its reference to bankruptcy as a “paramount national function” seems too easy an answer. Indeed, we have already held that where there is no sufficient purpose the bankruptcy court’s jurisdiction is not exclusive. United States v. New York, N.H. & H.R.R., 1 Cir., 1965, 348 F.2d 151. The court’s distinguishing of this case on the ground that the eminent domain taking was there made by the federal government, so that the supremacy clause was not involved, did not go to the heart of the matter; our decision necessarily recognized that the jurisdiction of the bankruptcy court depended upon the need.
In the New Haven case the property taken was a small piece of land not used for railroad purposes. No contention was made that the taking interfered with the reorganization, or should not be effected. The question was whether the “exclusive possession” of the reorganization court meant that there was no independent jurisdiction in the district court of the district where the land was located. The trustees conceded in their brief that in the reorganization court they “would not oppose the granting of permission” to have the actual trial in the local district. We held they had no such concern; that the bankruptcy exclusivity was granted only for substantive and substantial purposes, and that none there existed. Correspondingly, the question in the case at bar is not resolved by pointing to the phrase “exclusive jurisdiction,” but requires the much more difficult determination of whether it is within the purposes of section 77 that the state’s power of eminent domain be suspended, or at least made subject to the control of the court, during the pendency of the reorganization proceedings.
The Commonwealth’s concession, that it cannot proceed without ICC consent focuses scrutiny upon the separate function of the bankruptcy court. The interest of the court in any reorganization is. greater than appellant concedes, the prevention of diminution of assets and the achievement of an equitable adjustment among claimants. It has the further object of preserving the corporation as a going concern. “[T]o prevent the attainment of that object is to defeat the very end the accomplishment of which was the sole aim of the section, and thereby to render its provisions futile.” Continental Illinois Nat. Bank & Trust Co. of Chicago v. Chicago, Rock Island Ry., 1935, 294 U.S. 648, 676, 55 S.Ct. 595, 606, 79 L.Ed. 1110. However, to the extent that appellees suggest that, because this is a section 77 proceeding, “brigaded with the administrative process of the Commission,” in which “the authority of the Court is intertwined with that of the Commission,” Palmer v. Commonwealth of Massachusetts, 1939, 308 U.S. 79, 87, 60 S.Ct. 34, 38, 84 L.Ed. 93, the powers of the court are greater than in the usual reorganization proceeding, we must disagree. Insofar as this business is a railroad, affected by a. special public interest, this special interest is the concern of the ICC, and not of the court. Ecker v. Western Pacific R.R., 1943, 318 U.S. 448, 473, 63 S.Ct. 692, 87 L.Ed. 892; R.F.C. v. Denver & R.G.W.R.R., 1946, 328 U.S. 495, 508-509, 66 S.Ct. 1282, 1384, 90 L.Ed. 1400. In fact, “[w]hen examined to learn the purpose of its enactment, section 77 manifests the intention of Congress to place reorganization under the leadership of the Commission, subject to a degree of participation by the court.” Ecker v. Western Pacific R.R., supra, 318 U.S. at 468, 63 S.Ct. at 705 (emphasis ours). If the court has any function in this particular, see In re Florida East Coast Ry., S.D.Fla., 1949, 81 F.Supp. 926, it is merely one of review to ascertain that constitutional and statutory mandates have been followed and that there is “material evidence” to support the Commission’s conclusions. R.F.C. v. Denver & R.G.W.R.R., supra, 328 U.S. at 509, 66 S.Ct. at 1290. Even in the case of the abandonment of a part of the railroad operation at the behest of the trustee under section 77(o), the court’s only concern is with the economic effect upon the reorganization, and is not with the consequence to public transportation. In re Fonda, J. & G.R.R., 2 Cir., 1938, 95 F.2d 397. Indeed, where there is overlapping of functions, it is the ICC that passes upon the financial aspects of the reorganization, rather than the bankruptcy court that passes upon the public interest aspects. Ecker v. Western Pacific R.R., supra; R.F.C. v. Denver & R.G.W.R.R., supra; Thompson v. Texas Mexican Ry., supra.
Accordingly, the question comes whether the bankruptcy court’s general interest in successful reorganizations was intended by Congress to be paramount to a. state exercise of the right of eminent domain, for if not, there can be nó independent power in the court to refuse to consent. On this question appellant is able to offer no assistance, except to point out that its right to take property for public use is one of great importance, and not readily subordinated. City of Cincinnati v. Louisville & N.R.R., 1912, 223 U.S. 390, 400, 32 S.Ct. 267, 56 L.Ed. 481; State of Georgia v. City of Chattanooga, 1924, 264 U.S. 472, 480, 44 S.Ct. 369, 68 L.Ed. 796. . Appellees do furnish one judicial decision, Chicago, R. I. & P. Ry. v. City of Otawanna, 8 Cir., 1941, 120 F.2d 226, where the court held that the city seeking to condemn property in accordance with a grant of authority in its charter, could not take property which had passed into the hands of trustees under section 77 without the consent of the bankruptcy court. The opinion offers little assistance, however, as it does no more than assert the conclusion of exclusivity of bankruptcy jurisdiction.
Nor have we been able to find any legislative history casting light upon the question. We must, accordingly, approach the problem as essentially one of first impression. In so doing we are led to the conclusion that it is the state’s interest, and not that of a successful reorganization that must prevail if they are in conflict.
It is obvious, at the outset, that the state is not here in the position of a creditor. It is not seeking to enforce an existing mortgage, tax lien, Gardner v. State of New Jersey, 1947, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504, or other such interest which would qualify as a “claim” against the debtor’s property under section 77(b), and therefore be subject to alteration or modification in the course of approving a plan under that section. Rather, it possesses a special inchoate interest or right, which is paramount to any interest of the debtor in the property. This is nothing the debtor ever had, or that it, or the court, could convey, qualify, or subordinate to any other claim or interest. There is, as we held in the New Haven case, not even a bankruptcy function to determine fair compensation. In sum, with respect to the state’s prescriptive rights the court could effect none of the alterations or take any of the actions ordinarily contemplated in a reorganization proceeding. At the most, it could order the state not to proceed. Moreover, the prohibition would be no more than a postponement. The moment the court relinquishes jurisdiction its power is terminated; there can be no prospective prevention. Accordingly, if the state must apply to the court, and the court were to conclude that the proposed exercise of eminent domain would cripple the reorganization, the lethal blow may be diverted from the egg, but it will fall upon the day-old chick at the state’s pleasure.
Under such circumstances it is difficult to imagine how giving the bankruptcy court a temporary veto would serve the “purposes” (§ 77(a)) of the reorganization. But even if, in some fashion we do not perceive, this could be thought to benefit the debtor, we must hold that it is not the bankruptcy purpose that is paramount. Even to the extent that there is a public interest in the preservation of the going business, this economic interest is inferior to the public interest which is the basis of the state’s prescriptive rights. The present reorganization has been, as we have noted, in progress for 29 years. The possibility that a bankruptcy court could be permitted to postpone public rights for such a period is not appealing. Rather, we believe that to accept appellees’ position, apart from the protection preserved to the ICC, would not viably improve the prospects of the estate and would be broadly improvident.
The judgment of the District Court is amended by striking out the last four words thereof, “and of this Court,” and is otherwise affirmed. No costs.
. A companion appeal, No. 6946, by the Massachusetts Bay Transportation Authority, a state agency, raises no separate question.
. Two attempts to review this action are now pending before the Supreme Court.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Appellee, v. Frank FRISONE, Defendant-Appellant.
No. 1169, Docket 86-1085.
United States Court of Appeals, Second Circuit.
Argued March 18, 1986.
Decided June 4, 1986 .
Michael A. Guadagno, Asst. U.S. Attorney-in-Charge, Organized Crime Strike Force, Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Donald S. Sullivan, Sp. Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Michael H. Sporn, New York City, for defendant-appellant.
Before PIERCE, MINER and ALTI-MARI, Circuit Judges.
This appeal was originally heard on March 18, 1986, and decided by order dated June 4, 1986. As a summary disposition it would have no precedential value under our Local Rule § 0.23. We have decided sua sponte to publish the substance of the June 4, 1986 order in this opinion.
PER CURIAM:
Appellant was arraigned on a multi-count indictment in May of 1985 in the United States District Court for the Eastern District of New York. On May 16, 1985, a detention hearing was held before Magistrate Chrein at which time detention was ordered. On January 21, 1986, Judge Henry Bramwell, after independent review of the transcript of the magistrate’s hearing and consideration of arguments presented by counsel for the appellant on a motion for release, concluded that there was probable cause to believe that appellant had been involved in at least three crimes of violence, that appellant had not rebutted the presumption drawn from the conclusion that no condition or combination of conditions would reasonably assure the safety of the community, and that, even if appellant had rebutted such a presumption, there was clear and convincing evidence that no condition or combination of conditions would reasonably assure the safety of the community.
On March 18, 1986, appellant challenged the district court’s ruling before this court on the grounds that there was insufficient evidence to support detention, and that his continued detention pursuant to the Bail Reform Act, 18 U.S.C. §§ 3141 et seq. (the “Bail Act”) violated the Constitution. After argument, the application was denied from the bench on all grounds asserted except the constitutional grounds, as to which decision was reserved pending decision of another case which involved this very issue and which was sub judice at the time of argument. That case has recently been decided, see United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986). Hence, we address the remaining issue herein.
In Melendez-Carrion, the appellants challenged, inter alia, the constitutionality of continued pretrial detention under the Bail Act, where such detention was based upon grounds of dangerousness to the community. Judge Newman found the statute facially unconstitutional in authorizing, even for a brief time, such pretrial incarceration of a competent adult criminal defendant. Chief Judge Feinberg, concurring in the result of Judge Newman’s opinion, found continued confinement for a period over eight months, solely on the ground of dangerousness, a violation of due process since it inflicted punishment without an adjudication of guilt. Judge Timbers vigorously dissented from each of these views. The effect of Judge Feinberg’s and Judge Newman’s decisions render unconstitutional the continued pretrial detention of the appellant herein on the basis of the dangerousness prong of the Bail Act.
Frisone has been denied bail and detained for nearly twelve months on federal charges solely on the ground of dangerousness under the Bail Act. We are constrained to find that the continued confinement of appellant is affected by the majority position as to result in Melendez-Carrion. Consequently, we vacate the order of the district court and remand for the district court to determine whether there are conditions of release which will reasonably assure appellant’s appearance as required, and, if so, to establish appropriate conditions of release. We withhold issuance of the mandate herein pending issuance of the mandate in Melendez-Carrion.
Vacated and remanded with instructions.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_numresp
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
EDWARD B. MARKS MUSIC CORPORATION, Plaintiff-Appellant, v. COLORADO MAGNETICS, INC., d/b/a Sound Values, Inc., et al., Defendants-Appellees.
No. 73-1395.
United States Court of Appeals, Tenth Circuit.
Submitted Nov. 13, 1973.
Decided Feb. 28, 1974.
As Modified on Rehearing May 28, 1974.
Simon H. Rifkind, New York City (James D. Fellers, Frank A. Gregory, Fellers, Snider, Baggett, Blankenship & Bailey, Oklahoma City, Okl., and of counsel, John C. Taylor, III, Stuart Robinowitz, Sidney S. Rosdeitcher, Steven B. Rosenfeld, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Robert C. Osterberg, John S. Clark, Abeles, Clark & Osterberg, Charles B. Lutz, Jr., Speck, Philben & Fleig, Oklahoma City, Okl., on the brief), for plaintiff-appellant.
Jerry J. Dunlap, Oklahoma City* Okl. (Charles A. Codding, Dunlap, Laney, Hessin & Dougherty, Oklahoma City, Okl., on the brief), for defendants-appellees.
Before LEWIS, Chief Judge, and MURRAH and- McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
This is a so-called tape piracy ease. Edward B. Marks Music Corporation, hereinafter referred to as Marks, is an independent music publisher and, as such, is the owner of copyrights in numerous musical compositions. Marks, through its licensing agent, the Harry L. Fox Agency, Inc., has authorized various record companies to make recordings of compositions in which it, Marks, owns the copyright. The recording companies thus licensed by Marks to reproduce or record its copyrighted musical compositions have hired artists who have made recordings of the musical compositions here involved. Such recordings are then offered for sale to the general public.
Colorado Magnetics, Inc., hereinafter referred to as Magnetics, with no authorization from Marks, has also made recordings of musical compositions in which Marks owns the copyrights and has offered its recordings for sale to the general public at a price well below the retail price of the recordings produced by those recording companies licensed by Marks to record its copyrighted compositions. Magnetics’ modus operandi is to first purchase on the open market individual “hit” records thus made by those recording companies licensed by Marks to use its copyrighted compositions. Magnetics then duplicates or copies the recording with its own sound equipment on magnetic tape and offers for sale to the general public its duplicated or copied cassette tape recordings. Magnetics, of course, is able to undersell because, by simply copying the records made by others, it avoids the considerable expense incurred by the licensed recording companies in the hiring of arrangers, an orchestra, and the featured recording artists incident to their recordings.
It was in this general setting that Marks brought a copyright infringement action against Magnetics, seeking damages and injunctive relief. The gist of Marks’ complaint is that Magnetics is making an unauthorized and unlawful use of musical compositions in which it, Marks, owns the copyrights. Magnetics, by answer, denied copyright infringement, and alleged that its use of Marks’ copyrighted compositions is authorized by the so-called “compulsory license” provisions of the Copyright Law, namely, 17 U.S.C. §§ 1(e) and 101(e). Additionally, and alternatively, Magnetics alleged that Marks was guilty of certain antitrust violations which preclude it from enforcing its copyrights.
The case was initially set down for hearing on Marks’ request for a preliminary injunction. However, before such hearing was held, the parties agreed that a hearing on the merits would be combined with the hearing on the preliminary injunction. Upon trial, the only witness called was the president of Marks. Additionally, four depositions were offered, and received into evidence, the two principal owners of Magnetics having been among those thus deposed. Also, considerable documentary material was offered, and received, without objection. And this was the extent of the evidentiary matter before the trial court.
At the conclusion of the trial, the trial court asked the respective parties to submit proposed findings and conclusions. Thus the parties did and the trial court elected to adopt, virtually without change, the findings and conclusions submitted by Magnetics, all of which, needless to say, resulted in a smashing victory on all fronts for Magnetics. In this regard, we note that the Supreme Court in United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964), observed that findings and conclusions prepared by counsel and adopted, more or less verbatim, by a trial court are less helpful on review than findings and conclusions drawn with the “insight of a disinterested mind.” We agree.
In any event, the trial court specifically found that Magnetics in its use of Marks’ copyrighted musical compositions did not infringe on Marks’ copyrights and that Magnetics’ duplication of records playing Marks’ copyrighted compositions was authorized by the compulsory license provisions of 17 U.S.C. §§ 1(e) and 101(e). Alternatively, and additionally, the trial court went on to find that Marks was guilty of certain antitrust violations which precluded recovery; that because of its “misuse” of the copyrights in question Marks was es-topped; and that Marks’ “unclean hands” also barred recovery. In line with such findings and conclusions, the trial court dismissed the proceedings and awarded Magnetics its costs and attorneys’ fees. The complete findings and conclusions of the trial court are reported in Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 357 F.Supp. 280 (W.D.Okl.1973). In this regard, we note that though the trial court made written findings and conclusions, it did not render, as such, an opinion. From such judgment Marks now appeals. We reverse.
COMPULSORY LICENSE
In our view, the central issue in this case relates to the compulsory license provisions of 17 U.S.C. §§ 1(e) and 101(e). If Magnetics’ use of Marks’ copyrighted compositions falls within the ambit of that particular statutory provision, then Marks’ present action must fail. However, if Magnetics’ activities are outside the bounds of that statute, then Marks, as the copyright owner, is entitled to relief.
Although prior to 1909 a composer could obtain a copyright on his musical composition, Congress in 1909 considerably extended the copyright interest of the composer to the end that thereafter the copyright owner of a musical composition could himself control the mechanical reproduction of his composition. At the same time, fearful that by permitting a musical composition to be thus copyrighted it was permitting an absolute monopoly, Congress tacked on a proviso or exception to the statute authorizing the copyrighting of musical compositions. It is this proviso, which is a part of 17 U.S.C. § 1(e), with which we are here concerned. Such proviso reads as follows:
Provided, . . . as .a condition of extending the copyright control to such mechanical reproductions, that whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to be paid by the manufacturer thereof; .
As indicated, Magnetics claims that its use of Marks’ copyrighted composition in its duplication of records made by others is authorized by the foregoing statutory provision, which provides for a so-called compulsory license, in lieu of an express license from the copyright owner. In this general regard, it should be noted that Magnetics did file a notice of intent as required by 17 U.S.C. § 101(e) and did make a tender, of sorts, of the 2 cent royalty called for in 17 U.S.C. § 1(e). Marks refused the tender, and then instituted the present proceeding. We need not here concern ourselves with whether the tender complied with the statute, as, in our view, Magnetics’ use of Marks’ copyrighted compositions necessarily involved in its duplication or copying of the records of others, who are themselves licensed by Marks to record, finds no sanction in 17 U.S.C. § 1(e).
At the outset, we note that we are here concerned with a proviso or exception to the statute vesting a copyright interest in the composer of a musical composition and granting him the exclusive right to determine the use to be made of his copyrighted composition. In this regard, it is the general rule that a proviso should be strictly construed to the end that an exception does not devour the general policy which a law may embody. Shilkret v. Musicraft Records, Inc., 131 F.2d 929 (2d Cir. 1942), cert. denied, 319 U.S. 742, 63 S.Ct. 1030, 87 L.Ed. 1699 (1943).
As we read the statutory provisions here under consideration, one who owns the copyright in a musical composition has, in the first instance at least, absolute control over who records his composition. He may elect not to allow anyone to record his composition. However, when the composer elects to license another to “use . . . the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work,” then the compulsory license provisions of the statute may be invoked. Specifically, the statute provides that once the composer has licensed another to reproduce by recording the composer’s composition, then, upon payment of the statutory royalty, “ . . . any other person may make similar use of the copyrighted work . ” This means, to us, that one who complies with royalty payment called for by the statute, though not having any authorization from the copyright owner, may nonetheless then “use,” not a third party’s record, but the copyrighted composition, which has been characterized as the “raw material,” in a manner “similar” to that employed by the recording company which did have authorization from the copyright owner. There is, of course, nothing in the statute which affirmatively authorizes Magnetics to duplicate and copy the recording of one licensed by the copyright owner to reproduce his composition. However, under the statute Magnetics may “use” the copyrighted composition in a manner “similar” to that made by the licensed recording company. All of which means, to us, that Magnetics may make its own arrangements, hire its own musicians and artists, and then record. It does not mean that Magnetics may use the composer’s copyrighted work by duplicating and copying the record of a licensed recording company. Such, in our view, is not a similar use.
In thus construing the statute, we believe that the legislative history of these particular statutory provisions, from 1909 down to the amendments enacted in 1971, is conflicting and indecisive. More will be said later about the 1971 amendment. We further are aware that the decisions of the several federal district courts which have been faced with this particular question are in conflict. See, for example, Fame Publishing Co., Inc. v. S & S Distributors, Inc., 363 F. Supp. 984 (N.D.Ala.1973), where that court held that a compulsory licensee under 17 U.S.C. § 1(e) acquired no right to duplicate or copy the recordings of another and that one who seeks to rely on the compulsory license provisions of 17 U.S.C. § 1(e) “must hire some musicians, take them into a studio and make his own recording.” For a contrary view, see Jondora Music Publishing Co. v. Melody Recordings, Inc., 351 F.Supp. 572 (D.N.J.1972), where that court held that the Copyright Act of 1909 did not grant to the musical composition copyright holder the power to prevent third persons from copying a particular performance of his composition where (a) with the copyright holder’s permission a performance has already been fixed on a physical object capable of reproducing it, and (b) the third person has complied with the compulsory license provisions of the Act by filing and serving notices of intention and paying statutory royalties to the copyright owner.
The only Circuit Court faced with this precise problem is the Ninth. Duchess Music Corporation v. Stern, 458 F.2d 1305 (9th Cir. 1972), pet. for rehearing and rehearing en banc denied, April 26, 1972, cert. denied, 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972), about which more will be said later. And of course the Supreme Court has not yet passed on this particular issue. In our view, the recent case of Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), is not decisive of the present appeal. In Goldstein, the Court was concerned with the relationship between federal copyright law prior to the 1971 amendments and a California statute prohibiting the “piracy” of sound recordings by copying without permission of the recording company. The nature and extent of the interest of one having a copyright in a musical composition was not there considered.
As indicated, the Ninth Circuit has considered the meaning of 17 U.S.C. § 1(e). Duchess Music Corporation v. Stern, supra,. There was a strong dissent in Duchess. So, the majority opinion and the dissent in Duchess represent quite well the competing points of view on the meaning of 17 U.S.C. § 1(e). In Duchess, the majority held that the phrase “similar use” within the meaning of the Act of 1909 does not include the “right to copy” the recordings of others. We agree and are generally persuaded that the majority opinion in Duchess sets forth the proper interpretation of the statute.
As above indicated, in 1971 Congress amended the Copyright Law by making it possible for the first time to copyright the sound recording of a copyrighted composition, the effective date of this amendment being February 15, 1972. It is suggested that such amendment irrefutably indicates that Congress in 1971, at least, was of the view that the duplication or copying of sound recordings made prior to February 15, 1972, was lawful and in nowise inhibited by the Act of 1909. We do not think that such necessarily follows.
In the first place, we are of course not bound by Congress’ interpretation of a prior existing law. Golsen v. C. I. R., 445 F.2d 985 (10th Cir. 1971), cert. denied, 404 U.S. 940, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971). Indeed, whatever merit there may be in the practice of relying on the opinion of a later Congress as to the intent of an earlier one wanes with the length of time which separates the two sessions, which in the instant case was sixty-three years. United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). For an indication of the interpretation given the Act of 1909 by the judiciary shortly after its enactment, see Aeolian Co. v. Royal Music Roll Co., 196 F. 926 (W.D.N.Y.1912). In that case, it was held that § 1(e) of the Act providing that “any other person may make similar use of the copyrighted work” did not thereby secure the right to a subsequent user to “copy” the perforated piano rolls or records of another. The court then went on to declare that the would-be subsequent user could not avail himself of the skill and labor of the original manufacturer of the perforated roll or record by copying or duplicating the same, but had to resort to the copyrighted composition, and could not “pirate the work of a competitor who has made an original perforated roll.”
Secondly, the 1971 amendment created a copyrightable interest in the recording itself, the amendment to be effective February 15, 1972. We are here concerned with the nature and extent of the copyright interest of the composer, not the recording company. Such distinction we believe to be fundamental. Accordingly, we are not here concerned, as such, with the record, and its copying, but with the original composition and the copyright interest therein. This distinction we believe was indicated by us in Tape Head Company v. R. C. A. Corporation, 452 F.2d 816 (10th Cir. 1971). There, it was suggested by counsel that the 1971 amendment manifested an intention to grant persons situated as is Magnetics in the instant case a “carte blanche” to copy records made prior to February 15, 1972, free from any restriction, which in that case referred to state restrictions. In this general connection, however, we went on to say in Tape Head that “it is highly questionable from the authorities presented that the plaintiffs have, as a result of the Act of Congress, acquired a right to convert and use these recordings with impunity prior to February 15, 1972.” It is on this basis, then, that we are of the view that the 1971 amendment does not control the instant controversy.
ANTITRUST
As indicated, the trial court found, alternatively, that even if Marks had the right to maintain an infringement action, it was barred from obtaining any relief because of its own misconduct, particularly as concerns alleged antitrust violations. Assuming arguendo that an antitrust violation is a defense in a copyright infringement action, the record made in the trial court simply does not support its findings and conclusions. The evidentiary matter on this phase of the controversy is just too sketchy to support the trial court’s drastic and far-reaching findings of antitrust violations. Only certain aspects of this particular phase of the case need comment.
One finding of the trial court was that Marks was precluded from any recovery because it, along with the Harry L. Fox Agency, Inc., and others, had conspired to bring the present proceeding in an effort to stifle competition. This particular finding is pretty well undermined by the interpretation we have above given 17 U.S.C. § 1(e). In any event, in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), it was held that groups with common interests may, without violating the antitrust laws, use federal agencies and the courts to advocate their causes respecting resolution of their business and economic interests as opposed to their competitors. We recognize that in Trucking Unlimited the case was remanded to the trial court for, among other purposes, a factual determination as to whether the resort to the California regulatory agency was but a “mere sham” within the meaning of Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). In the instant case, however, any suggestion of sham or bad faith on the part of Marks disappears in view of our determination that Marks in fact and in law has an enforceable copyright interest in its compositions. So, as we said in Semke v. Enid Automobile Dealers Ass’n., 456 F.2d 1361 (10th Cir. 1972), the utilization of the courts in a manner which is in accordance with the spirit of the law continues to be exempt from the antitrust laws. See also Alberto-Culver Company v. Andrea Dumon, Inc., 466 F.2d 705 (7th Cir. 1972), where it was held that a good faith effort to enforce one’s copyright is not the type of exclusionary conduct condemned by § 2 of the Sherman Act.
The trial court also found that Marks was estopped from obtaining relief because of its misuse of its copyrights as concerns its pricing policies and the like. In this regard, it is argued that Ampex, for example, is a compulsory licensee and is duplicating and copying records in a manner similar to Magnetics. We do not agree that Magnetics is in a similar position to that of Ampex. Ampex has been duplicating and copying, not the recordings of the licensed recording companies, but the master tapes of the recording companies, all with the latter’s permission and for a fee and with the consent of Marks, the copyright owner. See in this latter regard Colorado Pump & Supply Co. v. Febco, Inc., 472 F.2d 637 (10th Cir. 1973), where we recognized the right of a manufacturer to select the customers to whom he will sell so long as his conduct has no monopolistic or market control purposes.
Permeating the entire “antitrust” argument of Magnetics is the belief that Marks comes into court with unclean hands to the end that it is precluded from obtaining equitable relief. The record in our view does not support this position. In this regard, the following language from Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951), is deemed appropriate:
. We have here a conflict of policies: (a) that of preventing piracy of copyrighted matter and (b) that of enforcing the antitrust laws. We must balance the two, taking into account the comparative innocence or guilt of the parties, the moral character of their respective acts, the extent of the harm to the public interest, the penalty inflicted on the plaintiff if we deny it relief. As the defendants’ piracy is unmistakably clear, while the plaintiffs’ infraction of the antitrust laws is doubtful and at most marginal, we think the enforcement of the first policy should outweigh enforcement of the second.
In this same general connection, see also Hoehn v. Crews, 144 F.2d 665 (10th Cir. 1944), aff’d sub nom, Garber v. Crews, 324 U.S. 200, 65 S.Ct. 600, 89 L.Ed. 870 (1945), where it was noted that it is not required that one who would seek equity must himself possess “spotless hands” and that it is not “every stain” that will bar one from equitable relief.
Applying the rationale of such eases as Alfred Bell & Co. and Hoehn, we conclude that Marks is not precluded from relief because of any possible misconduct on its part. The long and short of this entire matter is that Marks owns a copyright to certain musical compositions and Magnetics seeks to use Marks’ property right without Marks’ consent and, in our view, in a manner not authorized by the compulsory license provisions of 17 U.S.C. § 1(e).
As is reflected in the trial court’s decision in Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., supra, the “issue of liability” was separated for trial purposes. On the record before it, the trial court erred in entering judgment for Magnetics. Under the circumstances, it should have entered judgment for Marks. Accordingly, the judgment of the trial court is hereby reversed and the cause remanded with directions that it enter judgment for Marks on the “issue of liability.” Subsequent proceedings to determine the relief to which Marks is entitled should be consonant with the views herein expressed.
. Act of March 4, 1909, Pub.L.No.349, Chap. 320, 35 Stat. 1075; codified at 17 U.S.C. § 1(e). Congress felt this extension to have been necessary because the Supreme Court had held that perforated piano rolls and records were not “copies” of the composition which they reproduced. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908). See 43 Cong.Rec. 3765-3767 (Mar. 3, 1909).
. See H.R.Rep.No.2222, 60th Cong., 2d Sess. 7-8 (1909) ; Shapiro, Bernstein & Co., Inc. v. Remington Records, Inc., 265 F.2d 263 (2d Cir. 1959). However, it has been suggested that the breadth of the contemporary record industry belies any concern over monopolistic power. Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess. (H.R.Comm. Print 1961).
. Nor will we at the same time permit such a general policy to be obscured by “drastic technological changes” that have arisen since the enactment of the statute. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. David Lee TOWNSEND, Defendant-Appellant.
No. 71-1211.
United States Court of Appeals, Tenth Circuit.
Jan. 14, 1972.
Jack Speight, Asst. U. S. Atty. (Richard V. Thomas, U. S. Atty., and Tosh Suyematsu, Asst. U. S. Atty., on the brief), for plaintiff-appellee.
Richard S. Hays, of Hemminger, McKendree, Vamos & Elliott, Denver, Colo., for defendant-appellant.
Before BREITENSTEIN, HILL and McWILLIAMS, Circuit Judges.
PER CURIAM.
David Lee Townsend, age 19, pleaded guilty to a Dyer Act violation (18 U.S.C. § 2312) and was sentenced to a maximum period of imprisonment of three years pursuant to the provisions of 18 U.S.C. § 4208(a) (2). On appeal the issue is whether in accepting the tendered plea of guilty the trial court complied with the mandatory requirements of Fed.R.Crim.P. 11. We find there was no such compliance.
On arraignment the trial court did make some inquiry of Townsend concerning whether there was a factual basis for Townsend’s tendered plea of guilty. However, our perusal of the record discloses that Townsend was in nowise informed as to the various consequences of his tendered plea, which would certainly include explanation as to the nature and extent of the punishment which could lawfully be imposed.
In McCarthy v. United States, 394 U. S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), it was held that Rule 11 requires a trial judge before accepting a plea of guilty to make inquiry as to the defendant’s understanding of the nature of the charge and the consequences of the plea, as well as inquiry designed to ascertain whether there is a factual basis for the proffered plea. McCarthy also holds that a defendant is entitled to plead anew if the trial court accepts a guilty plea without “fully adhering” to the procedure provided by Rule 11.
The rule of McCarthy has been applied by us in such cases as United States v. Birmingham, 454 F.2d 706 (10th Cir. 1971), and United States v. Sanders, 435 F.2d 1282 (10th Cir. 1970).
The judgment is reversed and the case remanded with direction that the trial court permit Townsend to withdraw his plea of guilty and plead anew.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
McCARTY v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, HARRISON DIVISION.
Circuit Court of Appeals, Eighth Circuit.
May 10, 1927.
No. 317.
1. Mandamus <@=>12 — Object of mandamus is to enforce performance of peremptory and plainly defined duty.
Object of writ of mandamus is to enforce performance of existing duty, Which must be both peremptory and plainly defined.
2. Mandamus <@=>14(1) — Mandamus will not lie to compel trial of prosecution against petitioner without previous request for trial.
Mandamus will not lie to compel trial of case against petitioner, who is accused of offense, unless judge is first requested to take steps toward procuring trial of such case.
3. Convicts <@=>5 — Prisoner, serving sentence for violating federal law, cannot be denied right to trial for other* offenses against United States.
Prisoner, serving sentence for violating law of United States, is not, during such imprisonment, immune from, nor can he be denied right to, trial for other offenses against United States.
4. Criminal law <§=>243 — Person serving sentence in federal penitentiary, demanding trial under pending indictment, may be brought to ' place of trial under statutory procedure (Rev. St. §§ 753, 1014 [Comp. St. §§ 1281, 1674]).
Where person is serving sentence in federal penitentiary in same judicial district where an indictment is pending against him under which he demands trial, writ of habeas corpus ad prosequendum, under Rev. St. § 753 (Oomp. St. § 1281), will bring accused to place of trial, and where removal is necessary from one district to another section 1014 (Comp. St. § 1674) may be invoked.
5. Habeas corpus <§=>45(I) — Federal courts may issue every species of writ of habeas corpus (Rev. St. § 751 [Comp. St. § 1279]).
Power conferred by Congress on courts of United States to issue writs of habeas corpus, under Rev. St. § 751 (Comp. St. § 1279), includes every species of such writ.
On Petition for Writ of Mandamus.
Petition for a writ of mandamus by James J. McCarty against tbe United States District Court for tbe Western District of Arkansas, Harrison Division.
Petition denied.
Before WALTER H. SANBORN, STONE, LEWIS, KENYON, VAN VALKENBURGH, and BOOTH, Circuit Judges.
PER CURIAM.
Tbe object of tbe writ of mandamus is to enforce tbe performance of an existing duty, not to create a new one. Tbe obligation must be both peremptory and plainly defined. Tbe law must not only authorize tbe act, but it must require it to be done. Frankel v. Woodrough, 7 F. (2d) 796 (C. C. A. 8).
In reference to tbe issuance of a writ of mandamus by an appellate court, it was said in tbe Erankel Case:
“Where a trial court refuses without proper cause to try an action pending therein; appellate jurisdiction is affected and prevented) because such jurisdiction cannot become operative and effective until a final order, judgment, or deeree is entered. Therefore, in such instances, tbe jurisdiction to issue original writs in aid of tbe appellate jurisdiction exists.”
There is nothing in tbe record here presented, however, to show that tbe judge of tbe United States District Court for the Western District of Arkansas has ever been requested to take any steps looking toward the trial of tbe case against petitioner, or that be knows of tbe whereabouts of petitioner. Nor does the record show that said judge has had anything to do with preventing petitioner from having a speedy trial, or that said judge has bad anything to do with petitioner being deprived of any rights to apply for parole from imprisonment. Eor these reasons tbe present petition for a writ of mandamus has been denied. Frankel v. Woodrough, supra; Bayard v. White, 127 U. S. 246, 8 S. Ct. 1223, 32 L. Ed. 116.
In the latter case the court said:
“The writ of mandamus is a remedy to compel the performance of a duty required by law, where the party seeking relief has no other legal remedy and the duty sought to be enforced is clear and indisputable. Knox County v. Aspinwall, 24 How. 377, 383 [16 L. Ed. 735]. Both requisites must concur in every case.”
However, it does appear from the petition that the petitioner is a citizen of the United States, and is now confined in the penitentiary at Leavenworth, Kan., undergoing sentence for an offense committed against the United States; that an indictment is pending in the Western district of Arkansas against petitioner for another offense against the United States alleged to have been committed by him; and by inference, that petitioner wishes to be speedily tried on this pending indictment. Such being the situation, it may not be amiss to point out that this court has held in Frankel v. Woodrough, supra, that “a prisoner serving sentence for violating a law of the United States is not, during such imprisonment, immune from nor can he be denied the right to trial for other offenses against the United States.” The Supreme Court of the United States in the case of Ponzi v. Fessenden et al., 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879, has approved the practice of allowing a person who is serving a sentence of imprisonment imposed by a federal court to be brought from his place of confinement and to be tried for another offense for which he has been indicted. The procedure in bringing the accused from his place of confinement to the place of trial will doubtless vary according to circumstances; but the trial court, by virtue of its inherent power over its own criminal calendar, is in a position to handle and control the situation.
Where a person is serving a sentence in a federal penitentiary in the same judicial district where an indictment is pending against him under which he demands trial, it would seem that a writ of habeas corpus ad prosequendum under section 753, Revised Statutes (Comp. St. § 1281), would answer; where the removal is necessary from one district to another, section 1014, Revised Statutes (Comp. St. § 1674), might be invoked. See Ponzi v. Fessenden, supra, page 261 (42 S. Ct. 309).
It may be added that the power conferred by Congress upon the courts of the United States to issue writs of habeas corpus (section 751, -Revised Statutes [Comp. St. § 1279]), includes every species of that writ. Ex parte Bollman, 4 Cranch, 75, 2 L. Ed. 554; State v. Sullivan (C. C.) 50 F. 593, 598.
We are assuming that a cordial co-operation with the trial court will exist on the part of the Attorney General and the district attorney, either upon simple request or upon formal order to show cause after application has been made by the party seeking a speedy trial.
The foregoing remarks are not to be taken as directions, but merely as suggestions which possibly may aid the trial court in disposing of the present and similar matters.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
Anna May WOOD v. Rocky Alan DAY and Giant Food, Inc., Appellants.
No. 87-7231.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 15, 1988.
Decided Oct. 28, 1988.
Jayson L. Spiegel, with whom Dwight D. Murray and David P. Durbin, Washington, D.C., were on the brief, for appellants. Mary Ann Snow, Washington, D.C., also entered an appearance for appellants.
H. Vincent McKnight, Jr., Washington, D.C., with whom James M. Hanny, Land-over, Md., was on the brief, for appellee.
Before WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
This appeal is from a judgment entered on a jury’s verdict in a case of negligence arising from a rear-end collision. Because liability was admitted by defendants, Rocky Alan Day and Giant Food, Inc. (collectively “appellants”), the sole issue at trial was damages. The jury awarded plaintiff Anna May Wood (“Wood” or “ap-pellee”) damages of $100,000 via a general verdict. Appellants argue that the verdict was based on erroneous instructions allowing recovery for elements of damages not supported by the evidence. We agree, vacate the award, and remand for further proceedings.
Factual Background
The facts, considered in the light most favorable to the appellee, are as follows:
Appellee, a woman of approximately fifty-two years of age, had been living asymp-tomatically with a degenerative spinal condition known as spondylolisthesis, the breaking down or slipping of the vertebral column. On November 17, 1983, a taxi cab occupied by Ms. Wood was struck from behind by a tractor-trailer driven by appellant Day, an employee of the trailer’s owner, appellant Giant Food, Inc. Ms. Wood was taken from the scene to Prince George’s General Hospital, where she was examined, x-rayed, and released shortly thereafter.
Beginning on November 28, 1983, and over the next three years, Ms. Wood made 22 visits to an orthopedist, Dr. Rida Azer. Dr. Azer initially recommended physical therapy and prescribed medication, opining that further testing would be required if her condition did not improve. For approximately three years, Ms. Wood underwent numerous tests and treatments, including regular participation in physical therapy. Over the years, the frequency of her consultations and treatment tapered off, so that by May 1987, Ms. Wood had seen Dr. Azer only twice in the preceding eleven months, and had been advised by him to cease therapy.
At trial Ms. Wood testified that prior to the accident she had been a cashier at a department store for more than twenty years, and that, though limited to “light duties” after the accident, she remained employed by the company in an associated store. Ms. Wood testified that she was in constant pain and that her range of activities was considerably diminished. Although appellee introduced no evidence as to her pre-accident earnings, she testified that her new position paid $6.80 per hour.
The evidence at trial established that Ms. Wood had sustained permanent injury to the lumbosacral spine and a narrowing of the intervertebral disc space as a result of the accident, causing further spinal degeneration. Though Dr. Azer testified that Ms. Wood’s condition worsened from a grade one to a grade two spondylolisthesis within two weeks of the accident, appellants’ expert witness, Dr. Edward Anthony Rankin, testified that Ms. Wood’s preexisting vertebral condition eventually would have become symptomatic had the accident not occurred.
Dr. Azer testified that in his opinion Ms. Wood’s injury was permanent, would result in continued spinal deterioration, and would permanently restrict her ability to engage in a range of endeavors, including strenuous activity and prolonged sitting or standing, limitations “that she will have to abide by for the rest of her life.” Dr. Azer also testified that while surgery would normally be the optimal course of action, he did not believe it was appropriate for Ms. Wood because of her significant heart and weight problems. For these reasons, Dr. Azer was “very reluctant” to recommend surgery, as Ms. Wood could “end up by having a blood clot or a heart attack, or something.” In his opinion, surgery should be “avoid[ed] as long as possible, until it becomes almost an emergency.” Though Dr. Azer stated that Ms. Wood would need further medical attention, upon appellants’ objection the District Court ruled that Dr. Azer was not able to render an opinion as to the likelihood of surgery with the requisite degree of certainty. Though the Court indicated its willingness to permit the introduction of evidence pertaining to prospective non-surgical medical attention, none was offered.
In its original charge, the Court instructed the jury over appellants’ objection that “you should award such a sum as will reasonably and adequately compensate the plaintiff for any loss of earnings which you find that the plaintiff will probably suffer in the future.” Appellants took exception to the instruction, arguing that the only evidence tending to show a loss of future earnings — that relating to a convalescence period following surgery — had been stricken. The Court disagreed, stating that “I heard something about having to go to the doctor.”
During its deliberations, the jury inquired of the Court as follows: “Can we consider probable future medical costs related to Miss Wood’s condition if we determine defendant is at fault?” Despite a previous statement by appellee’s counsel that such expenses were no longer sought, and over appellants’ objection, the District Court instructed the jury that “you may consider probable future medical expenses, if any, except that you may not consider the cost of surgery.” The Court did so because, in its opinion, the jury (1) could “extrapolate” the number of visits Ms. Wood would make for treatment based on the frequency of her visits in the past; and (2) it could “infer” from the evidence regarding Ms. Wood’s pain that a doctor “will be giving her aspirin or valium, or whatever.”
Before trial, appellants stipulated that as of September 1986, Ms. Wood had accumulated $1,459.90 in lost wages, and medical bills totalling $6,199.13 as a result of the accident. By way of a general verdict, the jury awarded appellee $100,000. After appellants’ motions for a new trial and for remittitur were denied, this appeal followed.
Analysis
The primary purpose of compensatory damages in personal injury cases “is to make the plaintiff whole.” Kassman v. American University, 546 F.2d 1029, 1033 (D.C.Cir.1976). Accordingly, if properly proved at trial, both future medical expenses and loss of future earnings are recoverable. Cf. District of Columbia v. Barriteau, 399 A.2d 563, 567 (D.C.1979).
It is well established that notwithstanding the jury’s broad discretion in awarding damages, its award must be supported by substantial evidence. Doe v. Binker, 492 A.2d 857, 860 (D.C.1985). Damages may not be based on mere speculation or guesswork. Eureka Invest. Corp., N.V. v. Chicago Title Ins. Co., 743 F.2d 932, 939 (D.C.Cir.1984); Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C.1982); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250-51, 75 L.Ed. 544 (1931). Thus, “[w]hile damages are not required to be proven with mathematical certainty, there must be some reasonable basis on which to estimate damages.” Romer, 449 A.2d at 1100 (citing Designers of Georgetown, Inc. v. E.C. Keys & Sons, 436 A.2d 1280, 1281 (D.C.1981); District Concrete Co. v. Bernstein Concrete Corp., 418 A.2d 1030, 1038 (D.C.1980)).
And despite the jury’s discretion, “[i]t is elementary that an instruction should not be given if there is no evidence to support it.” Ceco Corp. v. Coleman, 441 A.2d 940, 949 (D.C.1982); Kasmer v. Sternal, 165 F.2d 624, 626 (D.C.Cir.1948). The evidence presented must be more than a “scintilla,” Doe, 492 A.2d at 860, and, indeed, when recovery is sought for future consequences of a tort, damages are “available only if such consequences are reasonably certain. Unless there is nonspeculative evidence demonstrating that future suffering, additional medical expense, and loss of income will occur, the question should not be submitted to the jury.” Curry v. Giant Food Co., 522 A.2d 1283, 1291 (D.C.1987) (citing American Marietta Co. v. Griffin, 203 A.2d 710, 712 (D.C.1964); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C.Cir.1982)). This Circuit has previously stated that damages for future consequences are recoverable only if plaintiff establishes that it is “more likely than not (a greater than 50% chance) that the projected consequence will occur.” Wilson, 684 F.2d at 119. See also Griffin, 203 A.2d at 712.
While errors limited to individual components of an instruction must be viewed in context, and not in isolation, Ceco Corp. v. Coleman, 441 A.2d at 950, and may be ignored if they are “immaterial” in light of the jury’s verdict, 11 C. Wright & A. Miller, Federal Practice & Procedure § 2886, 290-91 (1973) (“Wright & Miller”), a reviewing court should not turn its back on significant errors that may have substantially prejudiced a party’s rights. Cf. Ceco, 441 A.2d at 950; Wright & Miller, supra, at 291-92.
Appellee’s pretrial and trial documents undeniably demonstrate an intention to recover for future medical expenses and loss of future earnings. The sole theory upon which such recoveries were predicated was the possibility of future surgery, and a concomitant convalescence period. When asked by the Court whether he intended to introduce evidence of loss of future earnings, appellee’s counsel responded that “the doctor will testify that if the surgery is performed, [Ms. Wood] will be out of work for a six-month period of time. So there will be evidence of that.” Likewise, the only evidence offered regarding future medical expenses was Dr. Azer’s estimation of expenses associated with orthopedic surgery. However, the Court ultimately disallowed the introduction of Dr. Azer’s testimony as to the likelihood of surgery, ruling that Dr. Azer lacked the requisite degree of certainty to give an expert opinion. That decision is not challenged herein.
A careful search of the record reveals no word of testimony from any witness that would otherwise support an award of future medical expenses or loss of future earnings. Indeed, after his attempts to introduce evidence as to future surgery were rebuffed, appellee’s counsel abandoned his quest for future medical expenses, indicating to the Court that “we are not going to be arguing ... future medical expenses,” and thus requested that the Court omit a portion of the previously agreed-to jury instructions that would have allowed appellants to comment on Ms. Wood’s failure to call the physician who would perform the contemplated surgery. The Court consented. As noted above, it was only after the jury later inquired that the Court gave its instruction that permitted the jury to consider future medical expenses.
While it is true that evidence was introduced regarding past expenses and lost wages, this was not sufficient to support the Court’s instruction on the future elements. Appellee’s reliance on American Marietta Co. v. Griffin, 203 A.2d 710 (D.C.1964), is misplaced. In Griffin, the Court rejected an appellant’s argument that because there was no medical testimony indicating that plaintiff’s injury was permanent, the jury should not have been allowed to award permanent residual damages. The Court concluded that “when the bad effects of an injury have continued for years, laymen may reasonably infer permanence, even though there is no expert prediction that these injury residuals will continue,” and that “[ejvidence of pain and suffering in existence at the time of trial has been held sufficient to take the question of permanence to the jury.” Id. at 712 (citations omitted). Griffin has been interpreted as standing for the proposition that “absent medical testimony that injuries are temporary, a plaintiff's testimony concerning continuing pain and suffering will be sufficient to send the issue of permanency to the jury.” Davis v. Abbuhl, 461 A.2d 473, 476 n. 5 (D.C.1983) (latter emphasis added). Griffin did not discuss — and we do not interpret it to imply — what quantum of evidence is sufficient to send the issues of future lost wages and medical expenses to the jury. More germane to the present case is Curry v. Giant Food Co., 522 A.2d at 1291, where the Court affirmed the trial judge’s refusal to submit the issue of future loss of income to the jury. After noting that only “reasonably certain” future damages are recoverable, the Court stated that “[ujnless there is nonspecula-tive evidence demonstrating that future suffering, additional medical expenses, and loss of income will occur, the question should not be submitted to the jury.” Id. See also Snead v. United States, 595 F.Supp. 658, 667 (D.D.C.1984) (allowing a claim for future damages on the basis of “the reasoned and persuasive testimony ... as to [plaintiff’s] life expectancy and anticipated medical needs, including the likelihood of future radiation, therapy, chemotherapy and surgery”).
Even if the trial judge were correct that he “heard something about having to go to the doctor,” this was not sufficient to submit appellee’s claim of loss of future earnings to the jury. Similarly, even if it was reasonable to surmise that Ms. Wood would require “aspirin or valium, or whatever,” this would not be sufficient to submit her claim for future medical expenses to the jury. Neither amounts to the “reasonable certainty” required under District of Columbia law to take these elements out of the realm of speculation. In short, there was no substantial evidence upon which the jury could “extrapolate” Ms. Wood’s future medical expenses.
Conclusion
As we have shown, once the testimony as to the possibility of surgery was excluded, there was no evidence in 'the record to support instructions as to loss of future earnings or future medical expenses. In such a case a jury may not be allowed to speculate, and this, under the instructions it was given, is what this jury was allowed to do.
Vacated and remanded for a new trial, limited to the issue of damages.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. Kevin WHITE, Defendant-Appellant.
No. 941, Docket 91-1376.
United States Court of Appeals, Second Circuit.
Argued Feb. 20, 1992.
Decided Nov. 19, 1992.
Richard A. Reeve, Asst. Federal Public Defender, New Haven, Conn., for defendant-appellant.
Anthony E. Kaplan, Asst. U.S. Atty., D.Conn., New Haven, Conn. (Albert S. Da-browski, U.S. Atty., D.Conn., of counsel), for appellee.
Before: VAN GRAAFEILAND, KEARSE, and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
Defendant-appellant Kevin White appeals from a sentence imposed pursuant to a judgment of conviction entered in the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, on May 31, 1991 after a jury trial. White was sentenced to a statutory minimum of twenty years imprisonment based upon a prior conviction for a felony drug offense, in accordance with 21 U.S.C. § 841(b)(1)(A) (1988 & Supp. II 1990). United States v. White, 764 F.Supp. 254 (D.Conn.1991).
White asserts that this sentencing enhancement was improper because the government failed to file the information required by 21 U.S.C. § 851(a)(1) (1988) to trigger such enhancement “before trial,” as mandated by that statute. After an initial filing with the office of the clerk of the district court in Bridgeport, Connecticut that was rejected by that office, the government filed the information a second time before the jury had been sworn or evidence taken, but after jury selection had occurred. The government contends, and the district court ruled, that the second filing occurred “before trial” within the meaning of § 851(a)(1). The government also argues that in any event, there was substantial compliance with the statute.
We conclude that the initial filing was erroneously rejected by the clerk's office, and remand for a determination whether that filing occurred “before trial.”
Background
On July 5, 1990, White was indicted on two counts by a federal grand jury sitting in the District of Connecticut. Count one of the indictment charged White with conspiring to possess with intent to distribute fifty grams or more of “crack” cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1988). Count two charged White with employing a minor to distribute fifty grams or more of “crack” cocaine in violation of 21 U.S.C. § 845b (1988) and 18 U.S.C. § 2 (1988). White’s arrest and indictment resulted from a transaction on January 10, 1990 in which White directed the delivery of crack cocaine by a minor to an undercover police officer.
White was arraigned on July 19, 1990. At the arraignment, White was represented by counsel and entered a plea of not guilty. Prior- to the entry of White’s plea, the district court instructed the government’s attorney to recite the penalties corresponding to the charges in the indictment. The attorney explained that count one of the indictment generally carried a penalty of ten years to life for the conspiracy charged, but that in this case the mandatory minimum penalty was twenty years imprisonment because White had a previous conviction for drug trafficking. The government’s attorney further stated that the penalty for count two of the indictment was also twenty years to life. Upon inquiry by the court, White responded that he understood the penalties that he faced if convicted of the charges contained in the indictment.
On September 5, 1990, the grand jury returned a three-count superseding indictment. In addition to recharging the counts stated in the initial indictment, the superseding indictment charged White with possessing with intent to distribute fifty grams or more of “crack” cocaine within 1000 feet of an elementary school in violation of 21 U.S.C. §§ 841(a)(1) and 845a(a) (1988) and 18 U.S.C. § 2 (1988). On September 20, 1990, White was arraigned on the superseding indictment. As during the initial arraignment, White was represented by counsel, pled not guilty, and was explicitly advised that he confronted penalties of twenty years to life on each of the counts charged in the superseding indictment. Once again, White stated that he understood the charges and their corresponding penalties.
During the pendency of the prosecution, but well before trial, the government informed defense counsel of its intention to file a § 851 information. In the course of plea negotiations, however, government counsel indicated that if White agreed to plead guilty to count one of the superseding indictment, the government would forgo its right to file the § 851 information and seek enhanced punishment under § 841(b)(1)(A). Ultimately, the negotiations proved unavailing, and the government undertook to file the information.
On November 29, 1990, the government mailed the information for filing to the office of the clerk of the district court in Bridgeport, Connecticut. A copy of the information was also mailed that same day to White’s trial counsel at the address stated in the docket sheet and the notice of appearance filed by that attorney.
On December 3, 1990, a jury was selected for trial, but was not sworn. The next day, the government received in the mail from the clerk’s office the original unfiled § 851 information, with a notice that the information had not been accepted for filing because no address for the attorney of record appeared on the signature page of the information.
The government’s brief on appeal asserts that failure to include the attorney’s address was apparently deemed by the clerk to contravene D.Conn.Crim.R. I, which incorporates by reference twenty-one provisions of the District of Connecticut Rules of Civil Procedure, including D.Conn.Civ.R. 6. The latter rule states in pertinent part that: “All pleadings must be prepared in conformity with the Federal Rules of Civil Procedure_ Pleadings that do not conform to [this requirement] will not be accepted by the Clerk.” Fed.R.Civ.P. 11 requires that: “Every pleading, motion, and other paper of a party represented by an attorney shall be signed by [the] attorney of record..., whose address shall be stated (emphasis added).” Thus, the omission of the attorney’s address was apparently considered a violation of Fed.R.Civ.P. 11, incorporated via D.Conn.Civ.R. 6 in D.Conn.Crim.R. 1. There is nothing in the record that directly expresses the clerk’s rationale for rejecting the initial filing; only the fact of rejection is clear.
Upon receipt of the rejected information, the government supplied the requisite address on the signature page and mailed the amended information that same day to the clerk’s office. The information was received and filed by the clerk’s office on the next day, December 5, 1990. White’s counsel did not receive a copy of the information until December 11, 1990, evidently because counsel changed his address during the pendency of the case without notice to the court or opposing counsel.
On December 13, 1990, the jury was sworn and the presentation of evidence commenced. At the trial’s conclusion, White was convicted on all three counts charged in the superseding indictment. Prior to sentencing, White filed a motion to dismiss the § 851 information, contending that it was not filed “before trial” as required by the statute.
The district court denied White’s motion. White, 764 F.Supp. at 255. The court noted that although § 851(a)(1) clearly requires that the information be filed before trial, the statute does not specify what event determines the commencement of trial. Id. Applying principles developed in the area of double jeopardy, the court concluded that a trial commences for § 851 purposes when the jury is sworn and jeopardy attaches, not when the jury is selected. Id. Because the § 851 information was filed and served before the jury was sworn, the court concluded that the government had complied with the statute, and denied White’s motion. Id.
White was accordingly sentenced to the mandatory minimum sentence of twenty years pursuant to the § 841(b)(1)(A) enhancement. The court noted that had it not been bound by the mandatory minimum, it would have set sentence at fourteen years, "the minimum of the applicable Guidelines range of 168 to 210 months. This appeal followed.
Discussion
White contends on appeal that the district court erred in its interpretation of § 851(a)(1) to permit filing of a § 851 information after jury selection. The government defends the district court’s statutory construction, and additionally contends that in any event, there was substantial compliance with the statutory filing requirement.
We initially address the issue of statutory construction. We next consider, sua sponte, the question whether the clerk properly rejected the initial § 851 filing. Responding in the negative, we do not reach the government’s argument as to substantial compliance, and remand for a determination whether the initial filing occurred "before trial” within the meaning of § 851(a).
A. The Meaning of “Before Trial" in Section 851(a)(1).
Our interpretation of § 851(a)(1) must begin, of course, with the statute’s language. Mallard v. United States Dist. Court, 490 U.S. 296, 300, 109 S.Ct. 1814, 1817, 104 L.Ed.2d 318 (1989). Section 851 provides that the required information must be filed “before trial,” but does not specify the event which signifies the beginning of trial. The statute is accordingly ambiguous with respect to the issue presented for decision in this case. The parties agree, moreover, and the court concurs, that there is no relevant legislative history to assist our inquiry. Nor does the precise meaning of “before trial” become clear upon examination of the statutory context in which this phrase appears. Cf. McCarthy v. Bronson, — U.S. -, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991) ("statutory language must always be read in its proper context”).
We accordingly turn for assistance to some familiar canons of statutory construction. One requires that we read this language as taking its “ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) (citing Burns v. Alcala, 420 U.S. 575, 580-81, 95 S.Ct. 1180, 1184-85, 43 L.Ed.2d 469 (1975)). A second instructs us that “[u]se of the same language in various enactments dealing with the same general subject matter... is a strong indication that the statutes should be interpreted to mean the same thing.” Hargrave v. Oki Nursery, Inc., 646 F.2d 716, 720 (2d Cir.1980). These maxims counsel us to seek guidance in analogous enactments and judicial decisions.
In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Supreme Court addressed the question whether supervision of jury selection was a delegable duty under the Federal Magistrates Act, 28 U.S.C. § 636(b)(3) (1988). In the course of ruling that it was not, the Court made the following pertinent observations:
Even though it is true that a criminal trial does not commence for purposes of the Double Jeopardy Clause until the jury is empaneled and sworn, Serfass v. United States, 420 U.S. 377, 388 [95 S.Ct. 1055, 1062, 43 L.Ed.2d 265] (1975), other constitutional rights attach before that point, see, e.g., Brewer v. Williams, 430 U.S. 387, 398 [97 S.Ct. 1232, 1239, 51 L.Ed.2d 424] (1977) (assistance of counsel). Thus in affirming voir dire as a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present, the Court wrote: “ ‘[W]here the indictment is for a felony, the trial commences at least from the time when the work of empanelling the jury begins.’ ” Lewis v. United States, 146 U.S. 370, 374 [13 S.Ct. 136, 137, 36 L.Ed. 1011] (1892) (quoting Hopt v. Utah, 110 U.S. 574, 578 [4 S.Ct. 202, 204, 28 L.Ed. 262] (1884)). See Swain v. Alabama, 380 U.S. 202, 219 [85 S.Ct. 824, 835, 13 L.Ed.2d 759] (1965) (voir dire “a necessary part of trial by jury”); see also Ricketts v. Adamson, 483 U.S. 1, 3 [107 S.Ct. 2680, 2682, 97 L.Ed.2d 1] (1987); United States v. Powell, 469 U.S. 57, 66 [105 S.Ct. 471, 477, 83 L.Ed.2d 461] (1984). Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice, Rosales-Lopez v. United States, 451 U.S. 182, 188 [101 S.Ct. 1629, 1634, 68 L.Ed.2d 22] (1981), Ham v. South Carolina, 409 U.S. 524 [93 S.Ct. 848, 35 L.Ed.2d 46] (1973), Dennis v. United States, 339 U.S. 162 [70 S.Ct. 519, 94 L.Ed. 734] (1950), or predisposition about the defendant’s culpability, Irvin v. Dowd, 366 U.S. 717 [81 S.Ct. 1639, 6 L.Ed.2d 751] (1961). Indications that Congress likewise considers jury selection part of a felony trial may be gleaned, inter alia, from its passage in 1975 of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1982 ed. and Supp. V), and its placement of rules pertaining to criminal petit juries in a chapter entitled “Trial.” See Fed.Rules Crim.Proc. 23, 24; cf. id., Rule 43(a) (requiring defendant’s presence “at every stage of the trial including the impaneling of the jury”).
Id. 490 U.S. at 872-73, 109 S.Ct. at 2245-46 (footnote omitted).
The understanding that a “trial” encompasses voir dire is also supported by judicial decisions construing two other statutes whose enforcement calls for resolution of this issue. Under the Speedy Trial Act, 18 U.S.C. § 3161 (1988) et seq., which provides a mandatory timetable for the conduct of criminal trials, courts have consistently regarded jury selection as the commencement of trial. United States v. Fox, 788 F.2d 905, 908 (2d Cir.1986) (collecting eases); United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982); cf. United States v. Stayton, 791 F.2d 17, 19-21 (2d Cir.1986) (unreasonable post-voir dire delay in proceeding to trial may result in violation of Speedy Trial Act). The federal criminal removal statute, 28 U.S.C. § 1446(c)(1) (1988), which authorizes the filing of a petition for removal “before trial,” has also been construed to include voir dire within the meaning of the term “trial.” New Jersey v. Chesimard, 555 F.2d 63, 65 n. 1 (3d Cir.1977) (in banc); United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026-27 (9th Cir.), cert. denied, 423 U.S. 849, 96 S.Ct. 91, 46 L.Ed.2d 72 (1975).
In light of this general understanding that the term “trial” includes jury selection,. we believe that the district court’s reliance upon decisions involving double jeopardy principles was misplaced. The basis for the court’s decision was that: “A trial begins and jeopardy attaches when the jury is sworn, not when the jury is selected.” White, 764 F.Supp. at 255 (citing United States v. Wedalowski, 572 F.2d 69 (2d Cir.1978)). This is clearly a correct statement of double jeopardy doctrine, see Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975); United States v. DiLapi, 616 F.2d 613, 614 (2d Cir.1980) (per curiam), but we do not regard that body of law as controlling the issue presented for decision in this case.
The Double Jeopardy Clause protects an individual from twice being subject to the risk of a determination of guilt. Serfass, 420 U.S. at 391-92, 95 S.Ct. at 1064-65. That risk comes into play only when “a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ ” Id. at 391, 95 S.Ct. at 1064 (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904)). Accordingly, the risk associated with trial does not occur, and jeopardy does not attach, until the jury has been empaneled and sworn, and is thus competent to dispense a judgment of guilt. These considerations are inapposite to our inquiry under § 851(a)(1), which requires that we determine when the trial begins, not when the defendant’s exposure to the risk of a guilty verdict begins. Put another way, the Constitution protects against “double jeopardy,” not “double trial,” and the attachment of jeopardy does not occur at the commencement of the trial as “trial” is otherwise commonly defined.
Our interpretation of § 851(a)(1) finds support in United States v. Johnson, 944 F.2d 396 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991), — U.S. -, 112 S.Ct. 983, 117 L.Ed.2d 146 — U.S.-, 112 S.Ct. 2951, 119 L.Ed.2d 574 (1992), in which the Eighth Circuit held that “section 851 requires filing before jury selection begins,” id. at 407; and in Arnold v. United States, 443 A.2d 1318, 1323-27 (D.C.1982), so construing the phrase “prior to trial” in an analogous provision of the District of Columbia Code. Cf. United States v. Brown, 921 F.2d 1304, 1309 n. 6 (D.C.Cir.1990) (declining to address issue); United States v. Jordan, 810 F.2d 262, 268-69 (D.C.Cir.) (information filed before voir dire timely under § 851), cert. denied, 481 U.S. 1032, 107 S.Ct. 1963, 95 L.Ed.2d 535 (1987). But cf. United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir.1990) (information served on defendant and counsel before voir dire, but filed with court after trial began, complied with § 851), cert. denied, — U.S. -, 111 S.Ct. 972, 112 L.Ed.2d 1058 (1991).
The Johnson court stressed the need to “allow[ ] the defendant ample time to determine whether he should enter a plea or go to trial, and to plan his trial strategy with full knowledge of the consequences of a potential jury verdict.” 944 F.2d at 407. The Arnold court expressed a similar view, based heavily upon legislative history underlying the local enactment at issue in that case. 443 A.2d at 1324-26. This rationale reinforces the conclusion that we reach via a review of the pertinent case law.
We conclude that the phrase “before trial” in § 851(a)(1) means before the commencement of jury selection. We next address the question whether a § 851 information was filed “before trial” in this case.
B. The Validity of the Section 851 Filing.
As noted earlier, the clerk’s office rejected the government’s initial filing of the § 851 information. For the reasons hereinafter stated, we believe that this rejection was unauthorized. It follows that if the initial filing occurred “before trial” within the meaning of § 851(a)(1),- we may affirm the judgment of the district court on that ground, despite our disagreement with its statutory analysis.
This conclusion follows from the familiar rule that we may affirm on any basis for which there is a record sufficient to permit conclusions of law, including grounds upon which the district court did not rely. Cromwell Assocs. v. Oliver Cromwell Owners, Inc., 941 F.2d 107, 111 (2d Cir.1991); In re Chesley v. Union Carbide Corp., 927 F.2d 60, 68 (2d Cir.1991); Larsen v. NMU Pension Trust, 902 F.2d 1069, 1070 n. 1 (2d Cir.1990); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987). We ultimately conclude, however, that the record on this appeal does not permit a determination as to when the initial filing was completed, and remand for determination of that issue.
Although the government does not take direct issue with the clerk’s rejection of the initial filing of the § 851 information, we perceive no valid basis for that rejection. While, as indicated earlier, the record contains no explicit statement by the clerk’s office of the rationale for its action, it was premised upon the failure to include the attorney’s address below the signature on the § 851 information. No suggestion has been made of any source other than Fed.R.Civ.P. 11 for this requirement, or of any basis for the applicability of Rule 11 other than its incorporation by reference into D.Conn.Crim.R. 1 via D.Conn.Civ.R. 6. See supra notes 5-6 and accompanying text. (Ironically, Civ.R. 6 directly requires only that pleadings “have legibly typed, printed or stamped directly beneath the signature the name of the counsel or party who executed such document [emphasis added].”)
This is not a plausible reading of the operation of the local rules. D.Conn. Crim.R. 1 incorporates by reference twenty-one provisions of the local civil rules, including D.Conn.Civ.R. 6, which in turn requires “pleadings” to be “prepared in conformity with the Federal Rules of Civil Procedure.” Fed.R.Civ.P. 7(a) defines the “[pjleadings [ajllowed” under the Federal Rules of Civil Procedure, and there is of course no mention of indictments or infor-mations. Thus, the only remaining basis for subjecting the § 851 information in this case to the requirements for pleadings would be Fed.R.Crim.P. 12(a), which provides in pertinent part: “Pleadings in criminal proceedings shall be the indictment and the information, and the pleas of not guilty, guilty and nolo contendere.”
However, any claim that Rule 12(a) pleadings should be deemed (by operation of D.Conn.Crim.R. 1 and D.Conn.Civ.R. 6) subject to the requirements imposed upon the preparation of pleadings by the Federal Rules of Civil Procedure will not withstand analysis. This would mean that indictments, informations, and pleas of guilty, not guilty, and nolo contendere must, inter alia, include a short and plain statement of the pleader’s claim and a demand for judgment, Fed.R.Civ.P. 8(a); contain a caption including “a designation as in Rule 7(a),” id. 10(a); and be subject to the sanctions imposed by Fed.R.Civ.P. 11 for unjustified pleadings. Further, superceding indictments, and perhaps withdrawal of guilty pleas, would presumably be governed by the provisions of Fed.R.Civ.P. 15 regarding amended and supplemental pleadings. ■
In this case, the clerk of the court imposed upon a § 851 information the requirement stated in Fed.R.Civ.P. 11 that the signing attorney’s address be stated. The necessary premise that Rule 11 applies to the preparation of criminal law pleadings leads, however, to particularly bizarre results. A prosecutor could be subjected to Rule 11 sanctions for signing an unjustified indictment or information, directly athwart the doctrine of prosecutorial immunity. An indictment or information might be premised upon “a good faith argument for the extension, modification, or reversal of existing law,” Fed.R.Civ.P. 11, a manifest due process violation and an affront to the rule of lenity. Cf. Fed.R.Crim.P. 7(c)(1), which requires a statement of the violated “statute, rule, regulation or other provision of law” supporting each count of an indictment or information. A criminal defendant could be sanctioned for a frivolous plea of not guilty, contravening both the Sixth Amendment right to a speedy and public trial and the Fifth Amendment right not to be deprived of life or liberty without due process of law.
Neither Rule 11 in particular nor the Federal Rules of Civil Procedure are designed for such anomalous applications. The Federal Rules of Civil Procedure “govern the procedure in the United States District Courts in all suits of a civil nature.” Fed.R.Civ.P. 1 (emphasis added); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 391, 110 S.Ct. 2447, 2453, 110 L.Ed.2d 359 (1990). There are instances of incorporation by reference of a specific provision of the federal civil rules in federal criminal procedure. See, e.g., Fed.R.Crim.P. 49(d) (“Papers shall be filed in the manner provided in civil actions.”). Clearly, however, the catchall D.Conn. Crim.R. 1 should not be read to effect a wholesale incorporation of the pleading requirements of the federal civil rules into local criminal practice, and would be invalid if construed to do so. Cf. United States v. Burdette, 161 F.Supp. 326, 331-32 (E.D.Mich.1957) (rejecting motion for psychiatric examination pursuant to Fed. R.Civ.P. 35 in criminal case), aff'd, 254 F.2d 610 (6th Cir.1958) (per curiam), cert. denied, 359 U.S. 976, 79 S.Ct. 887, 3 L.Ed.2d 842 (1959).
The Federal Rules of Criminal Procedure “govern the procedure in all criminal proceedings in the courts of the United States.” Fed.R.Crim.P. 1. Local rules implementing the Federal Rules of Criminal Procedure may not be inconsistent with the federal rules. 28 U.S.C. § 2071(a) (1988); Fed.R.Crim.P. 57; see also Williams v. United States Dist. Court, 658 F.2d 430, 434-37 (6th Cir.) (invalidating local rule inconsistent with Federal Rules of Civil Procedure), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981); McCargo v. Hedrick, 545 F.2d 393, 401-02 (4th Cir.1976) (same). Further, a construction of a local rule that creates a conflict with a federal rule should be avoided. McKinney v. Dole, 765 F.2d 1129, 1135 n. 12 (D.C.Cir.1985); John v. Louisiana (Board of Trustees for State Colleges & Univs.), 757 F.2d 698, 707 (5th Cir.1985); Gerritsen v. Escobar y Cordova, 688 F.Supp. 556, 558 (C.D.Cal.1988).
The requirements for an indictment or information are covered by Fed.R.Crim.P. 7(c)(1), which calls for such instruments to “be signed by the attorney for the government,” but includes no provision for the statement of the signer’s address. Furthermore, the universal practice is that indictments and informations do not include a statement of the United States Attorney’s address. The Appendix of Forms to the Federal Rules of Criminal Procedure has been abrogated as unnecessary; forms of indictment and information are made available to United States Attorneys’ offices by the Department of Justice. Fed.R.Crim.P. Appendix of Forms advisory committee’s note. We understand that none of these forms include the address of the United States Attorney. Nor did prior Forms 1 through 11, which were forms for indictments (1-10) and an information (11). Cf. Form 29 to the Federal Rules of Civil Procedure (calling for provision of address of United States Attorney in civil complaint in accordance with Fed.R.Civ.P. 11).
Given the universal practice in this regard, we strongly doubt that the District of Connecticut could adopt a rule requiring that the government attorney’s address be stated in an indictment or information. We note that there is no counterpart in the Federal Rules of Criminal Procedure to Fed.R.Civ.P. 5(e), see swpra note 7; thus, violation of such a rule could warrant rejection of an attempted filing of an indictment or information, an especially untoward result in the era of the Speedy Trial Act. Further, as outlined earlier, there is no coherent way to interpret the combined operation of the federal and local rules to impose the “address” requirement of Rule 11 upon indictments and informations without imposing all the pleading requirements of the federal civil rules upon such instruments. We are persuaded that the local rules of the District of Connecticut do not intend such a result, and in any event are not authorized to effect it.
We therefore conclude that the court clerk had no valid basis to reject the initial filing of the § 851 information in this case, and accordingly that the issue of the government’s compliance with § 851(a)(1) must be resolved by reference to that initial filing. It is not clear on this appellate record, however, whether the initial filing occurred “before trial” within the meaning of § 851(a)(1); i.e., before jury selection. The record includes an affidavit that the § 851 information was mailed by the U.S. Attorney on November 29, 1990 and received back from the clerk on December 4, 1990, whereupon the Assistant United States Attorney’s address and telephone number were inserted below his signature and the information was mailed to the clerk’s office a second time. There is no specific indication, however, whether the clerk received the initial mailing prior to jury selection on December 3, 1990. The information is stamped only as filed at 11:56 a.m. on December 5, 1990, obviously reflecting the second mailing and receipt of the § 851 information. Since filing requires “ ‘delivery of papers into the actual custody’ ” of the clerk, Greenwood v. New York Office of Mental Health, 842 F.2d 636, 639 (2d Cir.1988) (quoting In re Gubelman, 10 F.2d 926, 929 (2d Cir.1925)); see also Fed. R.Crim.P. 49(d); Fed.R.Civ.P. 5(e), we must remand for a determination as to the time of actual receipt of the initial § 851 information by the court clerk.
Conclusion
The sentence imposed in this case is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
. Section 841(b)(1)(A) provides that in the case of certain drug offenses otherwise subject to a minimum term of imprisonment of ten years, "[i]f any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years....” It is undisputed that White committed violations that are subject to the § 841(b)(1)(A) enhancement, for he had previously been convicted in state court of the felony drug offense of possession of narcotics with intent to sell.
. Section 851(a)(1) provides:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
Id. (emphasis added).
. Section 845b was renumbered as § 861 and amended by Pub.L. 101-647, Title X, §§ 1002(c), 1003(c), Title XXXV, § 3599L, 104 Stat. 4827, 4829, 4932 (1990).
. Section 845a was renumbered as § 860 and amended by Pub.L. 101-647, Title X, §§ 1002(b), 1003(b), Title XII, § 1214, Title XV, § 1502, Title XXXV, § 3599L, 104 Stat. 4827, 4829, 4833, 4932 (1990).
. D.Conn.Crim.R. 1 provides:
Rules 2 (Admission of Attorneys), 3 (Discipline of Attorneys), 4 (Definitions), 6 (Preparation of Pleadings), 7(e) (Proof of Service), 7(f) (Sealed Documents), 9(a)l (Motion Procedure), 9(b) (Motions for Extension of Time), 9(e) (Motions for Reconsideration), 12(c) (Examination of Jurors), 12(e) (Opening Statements), 12(f) (Secrecy of Jury Deliberations), 14 (Removal of Papers and Exhibits), 15 (Withdrawal of Appearance), 17 (Bill of Costs), 21 (Reporter’s Fees), 22 (Remand by an Appellate Court), 30 (Recordings and Photographs), 31 (Sanctions Against Counsel), 32 (Auxiliary Orders), and 33 (Prohibition on Counsel as Witness) of the Local Rules of Civil Procedure shall also govern criminal proceedings in the District of Connecticut, as if said Rules were set forth fully in these Local Rules of Criminal Procedure for the District of Connecticut.
. D.Conn.Civ.R. 6 provides:
All pleadings must be prepared in conformity with the Federal Rules of Civil Procedure. Each such pleading shall be double-spaced, on 8V2" x 11" paper with a left margin of at least 1" free from all typewritten or printed material and shall have legibly typed, printed or stamped directly beneath the signature the name of the counsel or party who executed such document. The complete docket number, including the initials of the Judge to whom the case has been assigned, shall be typed on each pleading. The date of filing of each pleading shall be included in the case caption. Pleadings that do not conform to the foregoing requirements will not be accepted by the Clerk.
.An amendment to Fed.R.Civ.P. 5(e) effective December 1, 1991, and therefore inapplicable here, provides that court clerks "shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.”
. White argues that the government also failed to effect timely service upon White or his
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Arthur Eugene PINKEY, Defendant-Appellant.
No. 76-1254.
United States Court of Appeals, Tenth Circuit.
Submitted Dec. 8, 1976.
Decided Jan. 17, 1977.
Stephen M. Munsinger, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.
Jorge E. Castillo, Denver, Colo. (Richard H. Hill, Denver, Colo., on the brief), for defendant-appellant.
Before McWILLIAMS, BREITENSTEIN and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
Arthur Eugene Pinkey was charged in a four count indictment, tried to a jury and found guilty of using the United States mails to perpetrate a scheme to defraud and obtain money, all in violation of 18 U.S.C.A. § 1341.
Pinkey, who proceeded to defend the charges pro se, with the “stand-by” advice of a Public Defender at trial, does not challenge the sufficiency of the evidence. Accordingly, we shall relate the factual setting as succinctly as possible.
Pinkey was incarcerated in the Colorado State Penitentiary when the charged offenses occurred. At trial the Government called thirteen witnesses and presented twelve exhibits which were admitted in evidence. The crux of the charges is that Pinkey wrote nearly identical letters from the penitentiary to four widowed ladies residing in the State of Colorado after he had read of the deaths of their husbands from newspaper obituary accounts. Pinkey wrote them that he was a friend of the decedents;’ that he had been jailed with them either in “Denver County Jail” or the “Jefferson County Jail” after the decedents had been arrested “for being under the influence [of] alcohol”; that he had loaned them money to “get out of jail” which had not been repaid; and that he wished to have them send him “at least” $80.00 of the $75.00 he had loaned their respective husbands by money order “as soon as possible” because he was to leave for college in October of 1975. In truth, Pinkey did not know the decedents nor did he loan any of them money.
Before the trial commenced, the court fully and completely advised Pinkey of his right to counsel. The judge recommended that Pinkey avail himself of competent court appointed counsel in view of the fact that mail fraud cases are often complicated and technical. [R., Vol. I, pp. 2, 3.] Pinkey responded that he wished to represent himself with counsel present and available simply to advise him. He then volunteered that he intended to testify, whereupon his counsel advised the court that he had discussed the matter with Pinkey and that he (counsel) agreed that Pinkey’s testimony was “relevant, material and necessary.” [R., Vol. I, p. 4.] In Pinkey’s opening statement to the jury, immediately following that of the prosecutor, he remarked, inter alia, that “. . . as far as the letters, the money order, and this type of thing, I can prove that I never wrote these letters . . .” [R., Vol. I, p. 13] At trial, Pin-key voluntarily testified. He then acknowledged writing the letters as “just an idea” but he denied mailing them. There was substantial evidence otherwise.
During the court’s voir dire examination of the jurors, Pinkey hand printed on a yellow legal-sized sheet three questions which he wished to have the judge ask the jurors. These questions were written in the presence of the jurors and submitted to the trial judge. These handwritten questions were later introduced in evidence by the Government, at the suggestion of the court.
A Mr. Verle Truman testified as the Government’s expert on questioned documents, both with regard to comparison and identity of handwriting and typewriting. Truman was then employed at the Western Regional Postal Inspection Service’s Crime Laboratory at San Bruno, California. He gave detailed expert testimony which tied Pinkey to the documents then in evidence, which included the letters, envelopes, etc., offered and admitted during the Government’s case-in-chief. Truman specifically and unequivocally identified the handwriting on the exhibits as that of Pinkey. He demonstrated the identification technique by the use of “blow up charts.”
When Pinkey testified, he stated that he had written the respective letters (contrary to that which he stated he would prove in his opening statement) but he denied mailing them. He contended that he had placed them in a “box” in his cell; that they were nothing more than “just an idea” on his part; and that someone caused the letters to be taken out of the box and placed in the mail. These contentions, we hold, had been effectively — and overwhelmingly — refuted by the Government’s evidence.
On appeal, Pinkey contends that the trial court erred in (1) denying him a fair trial by having suggested to the United States Attorney (out of the presence of the jury) that the handwritten suggested voir dire questions prepared by Pinkey should be furnished to the Government’s handwriting expert for handwriting analysis, said analysis forming the basis of his opinion and (2) denying Pinkey’s right to represent himself by suggesting to the United States Attorney that the aforesaid handwritten voir dire questions be furnished to the handwriting expert for analysis.
I.
Pinkey’s contentions on appeal will be treated and considered jointly in view of the fact that both relate to the same alleged trial court error involving the additional testimony of the expert witness, Truman. At the conclusion of Truman’s direct testimony as a Government witness, the following colloquy occurred out of the presence of the jury:
THE COURT: These proceedings are being had outside the presence of the jury. I do invite your attention, Mr. Waters, to the fact — and I don’t know if you and Mr. Truman are the least bit interested in it — but I do invite your attention to the fact that this being a pro se case, the Defendant submitted here in open court in the presence of the jury earlier today certain samples of his printing. It’s available here if Mr. Truman would like to compare it. The jury saw these samples prepared.
MR. WATERS: Thank you, Your Honor.
THE COURT: They are here and we’ll take a recess. They are here, Mr. Truman, if you would like to look at them.
MR. WATERS: Thank you, Your Honor.
[R., Vol. I, pp. 86, 87.]
Following the above exchange, the Government (through Mr. Waters) caused to have the three voir dire questions which had been hand printed by Pinkey on a yellow sheet marked as Government Exhibit 12c. When the jury was returned, the Government moved the admission of the exhibit after Mr. Truman had identified the writing thereon as that of Pinkey by expert comparison. Pinkey did not object to the admission of Exhibit 12c. Furthermore, he did not cross-examine Truman relative to the identification, even though the court specifically inquired of Pinkey whether he wished to object or cross-examine. After the aforesaid re-direct examination of Truman was completed, the Government rested.
Pinkey voluntarily testified in his own defense. He insisted that even though he wrote the letters to the widows with the “idea” of deceiving them in order to obtain some money that he placed each of the letters in a box in his cell, and that he did not mail them. He contended “the officers mailed them ... It was all a set-up, and I’m just an innocent victim.”
II.
During oral arguments on appeal, counsel for Pinkey contended that the trial court’s suggestion that the prosecutor examine the Government’s handwriting expert with regard to comparison analysis of the writings on documents then in evidence (and with regard to which the expert had already testified) and the hand printed voir dire questions written by Pinkey thereafter handed to the judge, constituted plain error because (a) it denied Pinkey a fair trial by displaying the bias and prejudice of the trial judge toward Pinkey and (b) it compelled Pinkey to testify in his own defense as a result of the expert witness’ testimony on re-direct examination. We find no merit in either contention. The record reflects that the trial court was concerned for and steadfast in protecting Pinkey’s rights at all stages of the proceeding.
In the administration of the criminal justice system, the trial judge has the obligation of safeguarding the rights of the accused while at the same time protecting the interests of society. The adversary nature of criminal proceedings does not prohibit the trial judge from taking proper steps to aid and assist the jury in the truth finding quest leading to the proper determination of guilt or innocence. In the promotion of this goal, the trial judge has an obligation, on his own initiative, at proper times and in a dignified, and impartial manner, to inject certain matters into the trial which he deems important in the search for truth.
In Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933), the trial judge instructed the jury relative to the rules of innocence and reasonable doubt; and he instructed that expressions of opinion on the evidence by the court are not binding on the jury and should be disregarded if the jury believes the evidence indicates otherwise. The judge then expressed his opinion that “I think that every single word that man said, except when he agreed with the Government’s testimony, was a lie.” The judge’s opinion was attributed primarily to the defendant’s mannerism of wiping his hands as he testified. Following the above observation, the court again instructed the jury that his opinion was not binding and that if the jury should not agree “. . . it is your duty to find him not guilty.” The defendant’was convicted. The Supreme Court reversed, based primarily upon the trial judge’s statement of the defendant’s lack of credibility predicated upon his mannerisms rather than any analysis of the evidence. For purposes here, however, this language from the opinion is pertinent:
In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95, 51 S.Ct. 383, 75 L.Ed. 857. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. 289 U.S., at 469, 53 S.Ct. at 698.
In Massey v. United States, 358 F.2d 782 (10th Cir. 1966), cert. denied, 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105 (1966), this Court said, inter alia:
The appellant contends that the trial judge participated too actively in the conduct of the trial, especially in suggesting necessary proof to the prosecuting attorney. This court has recently stated, in Ayash v. United States, 352 F.2d 1009 (10th Cir. 1965) that:
. . The trial Judge is not a mere moderator or umpire in the trial of a case in federal court, and, within reasonable bounds, he has the right to participate in eliciting the truth. He should, however, be careful not to become an advocate for any of the parties, (p. 1010.)”
358 F.2d, at pp. 786, 787.
Analogous to the above decisions is this statement from Gardner v. United States, 283 F.2d 580 (10th Cir. 1960):
. appellants point to several incidents where the court ruled out questions without first having an objection from the prosecution. But the circumstances were such that the questions were argumentative, repetitious in the extreme, or subject to an earlier considered ruling by the court. We believe that the control used by the trial court was not only justified but, indeed, was dictated by the duty of the moment.
283 F.2d, at 581.
In United States v. Wheeler, 444 F.2d 385 (10th Cir. 1971), we held:
The trial judge is allowed to participate in a trial and ask questions of witnesses in order to ascertain the facts. He cannot show hostility toward one side or become an advocate for one side.
444 F.2d, at p. 390.
In McBride v. United States, 409 F.2d 1046 (10th Cir. 1969), cert. denied, 396 U.S. 938, 90 S.Ct. 282, 24 L.Ed.2d 240 (1969), the trial judge questioned a witness who had given conflicting answers in response to questions asked on cross-examination. The judge premised his questioning with the explanation that he wanted the witness to clarify his answers. On appeal this Court said:
the Court’s interrogations were for the purpose of clarifying the facts in the case and were not advocacy. The questions asked were within the range of the judge’s authority and did not prejudice in any way the rights of the defendant .
409 F.2d, at 1049.
The general rule is that a federal judge has the right to examine witnesses. Wright, Federal Practice and Procedure, Criminal, Vol. 2, § 415, pp. 176-178; Barba-Reyes v. United States, 387 F.2d 91 (9th Cir. 1967); United States v. Ostendorff, 371 F.2d 729 (4th Cir. 1967); United States v. Rosenberg, 195 F.2d 583 (2nd Cir. 1952), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952); United States v. Amorosa, 167 F.2d 596 (3rd Cir. 1948).
The power of the court to call witnesses on its own motion in criminal cases, while seldom used, is recognized by both state and federal courts. Smith v. United States, 331 F.2d 265 (8th Cir. 1964), cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964); United States v. Lutwak, 195 F.2d 748 (7th Cir. 1952), affirmed 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953).
In Cooper v. United States, 403 F.2d 71 (10th Cir. 1968), we said:
. While indications in the presence of the jury [by the judge] that statements of the defense counsel are ridiculous, are not to be encouraged, such conduct certainly does not constitute reversible error. Petersen v. United States, 268 F.2d 87, 88 (10th Cir. 1959). Indeed, that incident and the others discussed above, were no more than displays indicative of a firm control of the proceedings and fall well within the reasonable bounds within which a trial judge may act. Inland Freight Lines v. United States, 191 F.2d 313 (10th Cir. 1951). [Emphasis supplied.] 403 F.2d, at 73.
Measured by the above cited rules and evidence in the record before us, we hold that the trial court did not abuse its discretion. Pinkey’s rights were not prejudiced. Even had we found prejudice, however, it would most certainly be harmless in light of the overwhelming evidence of Pinkey’s guilt. Thus, any prejudicial effect of the trial court’s alleged “advocacy” on behalf of the Government could rise no higher than harmless error. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Chase v. Crisp, 523 F.2d 595 (10th Cir. 1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1418, 47 L.Ed.2d 354 (1976).
Finally, we note that Pinkey failed to object to the trial court’s action in regard to the court’s suggestion that the Government conduct further examination of its handwriting expert. Pinkey elected to proceed with the trial of this case on a pro se basis, with court appointed counsel on hand for “stand-by” or “advisory” purposes whenever Pinkey wished to seek legal assistance. This, of course, was Pinkey’s right. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Montgomery, 529 F.2d 1404 (10th Cir. 1976), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833. And the “hybrid” arrangement [self-representation with “stand-by” counsel] was within the discretion of the trial court to allow. United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182.
Our review of the record in the present case convinces us that the trial judge did everything possible to inform Pin-key of the risks he was assuming by proceeding pro se at trial, particularly in light of the complicated aspects of a mail fraud case. When Pinkey insisted on proceeding pro se, the trial judge encouraged and requested that he seek the advice of his “stand-by” counsel. The trial court carefully and adequately pointed out to Pinkey the magnitude of the undertaking and the risks involved in self-representation. Under these circumstances, Pinkey nevertheless proceeded pro se. When he did so, he assumed the obligation of abiding the technical rules governing the conduct of a trial. Pinkey’s failure to object to the alleged prejudicial action of the trial court works to estop him from raising the objection for the first time on appeal, absent plain error. United States v. Taylor, 536 F.2d 1343 (10th Cir. 1976); Warden v. United States, 391 F.2d 747 (10th Cir. 1968); Fed.Rules Crim. Proc., Rules 30 and 52(a), 18 U.S.C.A. This rule is the more applicable in light of the fact that Pinkey had available competent counsel to represent him at trial, but which he [Pinkey] elected to place on a “stand-by” basis simply to advise and counsel him upon his request. The trial court carefully and meticulously informed Pinkey of the nature of the charges, the complexity of the trial and of the issues involved. The trial court attempted to convince Pinkey that he should not run the risks of proceeding pro se. Pinkey nevertheless intelligently, knowingly, and voluntarily made the choice to do so with full understanding of the risks involved. Under these circumstances the Constitution does not force a lawyer on an accused. Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957).
Pinkey intelligently and voluntarily waived his Sixth Amendment right of active participation and assistance of trial counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Having done so, he acquiesced in and subjected himself to the established rules of practice and procedure in federal criminal trials. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).
The hazards which beset a layman when he seeks to represent himself are obvious. He who proceeds pro se with full knowledge and understanding of the risks does so with no greater rights than a litigant represented by a lawyer, and the trial court is under -no obligation to become an “advocate” for or to assist and guide the pro se layman through the trial thicket. Garrison v. Lacey, 362 F.2d 798 (10th Cir. 1966), cert. denied, 387 U.S. 911, 87 S.Ct. 1696, 18 L.Ed.2d 630 (1967); Murphy v. Citizens Bank of Clovis, 244 F.2d 511 (10th Cir. 1957); Carrigan v. California State Legislature, 263 F.2d 560 (9th Cir. 1959), cert. denied, 359 U.S. 980, 79 S.Ct. 901, 3 L.Ed.2d 929 (1959); Barnes v. United States, 241 F.2d 252 (9th Cir. 1956).
WE AFFIRM.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_respond1_1_3
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
THE SOCONY NO. 19.
Circuit Court of Appeals, Second Circuit.
March 5, 1928.
No. 181.
1. Collision <§=106 — Case of vessel maneuvering to. leave slip is one of “special circumstances.”
The case of a vessel maneuvering to leave her slip is one of “special circumstances,” and ordinary steering and sailing rules and signals, made for vessels navigating on definite courses, do not apply.
[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Special Circumstances.]
2. Collision <§=95(4) — Small launch held at fault for collision with barge being maneuvered out of slip by tug, where it did nothing to get out of way.
Small motor launch held at fault in collision with barge, which tug was maneuvering out of slip, where launch, though having tug and barge in plain view for five minutes, did nothing to keep out of the way of their maneuvering.
Appeal from the District Court of ■ the United States for the Eastern District of New York.
Libel by the General Ship. Scaling Corporation against the steam tug Socony No. 19, her engines, boilers, etc., wherein the Standard Transportation Company is claimant. From an interlocutory decree holding the steam tug solely at fault for collision between barge, which tug had in tow, and libelant’s motor launch, claimant appeals.
Reversed and remanded, with directions.
Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, Richard F. Lenahan, and Pierre M. Brown, all of New York City, of counsel), for appellant.
Bigham, Englar & Jones, of New York City (Charles W. Hagen, of New York City, of counsel), for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The libelant’s vessel, Helene No. 2, was a motor launch, 57 feet in length, carrying heavy machinery and equipment, used for scaling vessels and for eleetrie welding/ She had a 32 horsepower gasoline motor, and 'her crew consisted of an operator and a man to handle the engines. Two other vessels concerned were the Socony No. 122, a loaded barge carrying fuel oil to ships, which was 250 feet long, and in tow of the Socony No. 19, a steam tug about 89 feet in length. The barge was on the south side of Pier 5, Bush Terminal, bow in. The tug went alongside No. 122 on her extreme stem quarter, and made fast to her with a strap, head line, and stem line. A deckhand was stationed as a lookout on the stern of the barge. Thereupon the tug blew the usual long slip whistle and proceeded to back the No. 122 out into the stream. When the barge had cleared the slip, the tug began to swing her around in order to get her on her course, which was to be up the river to Pier 35, Brooklyn. Meanwhile the Helene No. 2 was coming across the bay to Pier 5, Bush Docks, saw the Socony No. 19 when something less than a half mile away, and when she got within 600 or 700 feet of the pier gave a stop bell, because the Socony No. 19 was backing her barge out of the slip.
When the tug, by backing her engines, had pivoted the barge, so that the latter was heading in a southerly direction, the Helene No. 2 assumed that she was going down the bay toward Staten Island, instead of up to Pier 35. As the Socony No. 19 swung her barge farther around, the Helene No. 2, who was then about 500 feet from the pier head, did not get out of' her way, and as a result was struck a swinging blow on her starboard bow by the overhang of the bow of the barge. •
The master of the Socony No. 19 testified that, when the Helene No. 2 was 250 or 300 feet away from him, he saw her start her engines ahead, and that he then stopped his tug’s backward motion and put his wheel hard astarboard to shove his bow to the southward, away from the Helene No. 2. The master of the latter said she did not start up, but lay five minutes outside the pier, waiting for the Socony and her barge to proceed, and that when he saw the tug swinging her barge around, instead of proceeding south, as he had expected, he reversed his engine, but too late to avoid collision. He also said that the Socony pulled her barge out of the slip, got her in a position lying north and south and lengthwise of the ends of the piers, then let go her lines, made fast on the stem quarter of the barge, and started to pivot her around.
The trial judge held that the collision was occasioned through the fault of the Socony No. 19 in failing to signal the Helene No 2 that the former was about to make a,, complete turn and go up the bay, and that there was no fault on the part of the Helene No. 2. He also seems to have found that the Socony made fast to the starboard quarter of her barge after she had got her out into the stream, in u position parallel to the pier ends; that the Helene No. 2 had come to a full stop before this, and did not come forward on her engines thereafter. It seems doubtful whether the Helene No. 2 did not come forward, for the Socony swung her barge around while backing her engines, and it is hard to see, when this was being done, how the barge could have extended out far enough to strike the Helene No. 2, if the latter had remained 500 feet outside of the pier ends.
But, assuming that the finding of the trial court was correct, we still have a ease where the tug Socony was taking a heavy barge out of her pier to get her on a course. The small motor launch, Helene No. 2, according to the account of her master, instead of keeping out of the way of the barge, came within 500 feet of the pier heads, and then, though having the tug and barge in plain view for five minutes, did nothing to keep out of the way of their legitimate maneuvers, but practically lay still until she was struck.
It is perfectly settled that the ease of a vessel maneuvering to leave her slip is one of special circumstances. The Servia, 149 U. S. 144, 13 S. Ct. 877, 37 L. Ed. 681; The John Rugge (C. C. A.) 234 F. 861; The Washington (C. C. A.) 241 F. 952. Therefore ordinary steering and sailing rules and signals made for vessels navigating on definite courses do not apply. The Socony was executing a somewhat awkward maneuver, without taking any unnecessary room. She had blown her slip whistle; the Helene No. 2 plainly saw her, and was bound to keep out of her way while she was attempting to leave her slip and get on her course. Of course, the Socony could not be excused if she.recklessly ran into the barge; but she had a right to assume that a small launch, like the Helene No. 2, would get out of her way when there was plenty of time and space within which to do this, if the Helene No. 2 had begun to move in season.
It is evident that, when a tug made fast to the stem quarter of a barge is swinging the barge, the leverage is all against the tug. It is a slow matter either to start or to stop her swing. This is an ample reason why the tug could not avert the collision with the Helene No. 2. She was justified in supposing the latter would make a seasonable effort to get out of the way, and with every natural force against her she did what she could to break the swing of the barge when the Helene No. 2 had taken no measures to get out of the way until too late.
The fault relied on by the libelant to justify holding the Socony is that the latter attempted an unusual maneuver without giving some warning to the Helene No. 2. It is argued that the maneuver was unexpected, because the -Socony and her barge for a moment lay north and south, and were, therefore, apparently about to proceed down the bay. But when a tug has got her tow outside a slip, and has not yet started anywhere, there can be no justification in making assumptions as to her destination. She is still essentially maneuvering to get on her course. The unwarranted suppositions of the master of the Helene No. 2 can serve as no basis for requiring a signal by the Socony, nor is any signal appropriate to such a situation found in the admiralty rules, sanctioned by maritime practice, or pleaded as a fault in the libel.
The interlocutory decree is reversed, and the cause is remanded, with directions to dismiss the libel, with costs.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_treat
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul NEMETH, Defendant-Appellant.
No. 20024.
United States Court of Appeals, Sixth Circuit.
Aug. 18, 1970.
Charles E. Peyton (Court Appointed) Louisville, Ky., for appellant on brief.
John L. Smith, U. S. Atty., Louisville, Ky., for appellee on brief.
Before WEICK, CELEBREZZE and PECK, Circuit Judges.
PER CURIAM.
Appellant was observed by two Louisville police officers outside a Louisville bank at 2:15 a. m. on February 10, 1969. The officers testified that as they approached appellant he was standing beside the bank’s night deposit box and that as soon as he saw them, he made a motion as though he were throwing something away and began walking rapidly away from the bank. After questioning appellant about his actions and his reason for being in the area at that time of night and receiving vague and unsatisfactory answers, the police arrested appellant on loitering and disorderly conduct charges. Subsequent investigation at the bank disclosed that $750' was missing from the night deposit box, and an envelope scoop device bearing appellant’s fingerprint was found inside the night deposit box. Appellant was then indicted, tried and convicted by a jury of violation of 18 U.S.C. § 2113(b), larceny of a federally insured bank. This appeal followed.
Appellant did not take the witness stand or offer any evidence in his defense at the trial. The government’s case against him consisted principally of the circumstances of his arrest, of the fact that $750 was missing from the bank’s night deposit box, and of the fact that appellant’s fingerprint was on the envelope device found inside the night deposit box. The government’s final witness was an FBI agent who, after testifying that he was familiar with the method of committing larceny of bank night deposit boxes by the use of wires and envelope scoop devices, testified that appellant had a prior conviction of the same offense with which he was charged in this case. All of the pertinent testimony on this point is contained in the following:
“Q. [By the U. S. Att’y.] Mr. Doma-lewski, [FBI Agent] are you familiar with the defendant, Robert Paul Nemeth?
“A. Yes, I am.
“Q. And how long have you been familiar with him, sir?
“A. I have had knowledge of Robert Paul Nemeth for approximately five years.
“Q. And in what way?
“A. Mr. Nemeth was first brought to my attention in connection with activity of which I had an interest.
“Q. All right; has he been convicted before ?
“Mr. Peyton: [Defense Counsel] Objection, Your Honor.
“By the Court: Overruled.
“Mr. Peyton: Move that the jury be discharged.
“By the Court: Overruled. I will give the jury an admonition at the right time.
“Q. Has Mr. Nemeth been convicted under the same statute before, using that same kind of device?
“A. Yes, sir; he has.”
Although the trial judge immediately instructed the jury in substance that evidence of a prior conviction could not be considered as evidence of guilt of the offense charged, the testimony, and the manner in which it was presented, was so prejudicial that appellant’s conviction must be reversed and a new trial ordered.
The general rule is that evidence of prior criminal activity is inadmissible to prove the commission of a later offense. The only exceptions to that rule are that when intent, motive or lack of mistake are in issue, evidence of prior similar and related offenses tending to show a consistent pattern of conduct is admissible if accompanied by appropriate cautionary instructions. E. g., Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Gilstrap v. United States, 389 F.2d 6, 9-10 (5th Cir. 1968); Zamora v. United States, 369 F.2d 855, 858-859 (10th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967); United States v. Kirkpatrick, 361 F.2d 866, 868 (6th Cir. 1966); Kowalchuk v. United States, 176 F.2d 873, 878 (6th Cir. 1949). Furthermore, in order to show a consistent pattern of conduct relating to the offense charged, the evidence must be of prior similar acts reasonably near in time to the offense charged. Gilstrap v. United States, supra; Whaley v. United States, 324 F.2d 356, 358 (9th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609 (1964).
Here there was no showing where or by what means the appellant committed the prior act, nor was it shown to be related in point of time or otherwise to the offense charged. From all that appears in this testimony, appellant had one prior conviction for the same offense. Presumably this was within the five year period prior to his trial in this case, although even this is not clear. If such is an accurate reflection of the record, even proper evidence of facts concerning a prior offense would be inadmissible as too remote in time. Finally, the manner in which the evidence was presented to the jury was particularly objectionable since the only thing stressed in the instruction to the jury was the agent’s hearsay statement that appellant had a prior conviction of the same offense. Evidence of this fact even if properly documented, would clearly be inadmissible where the defendant does not testify and his character is not otherwise in issue. Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); United States v. Rudolph, 403 F.2d 805, 807 (6th Cir. 1968).
Since the substance and the pres-. entation of the evidence here was clearly inadmissible and prejudicial, the trial judge’s cautionary instruction immediately following the agent’s testimony cannot be held to have cured the error. As stated above, properly authenticated evidence of prior offenses is admissible only if accompanied by appropriate instructions.' However, otherwise proper cautionary instructions cannot supply the first element of the exceptions to the general rule, i. e., authenticated evidence of prior similar offenses tending to show a consistent pattern of conduct.
The remaining issues raised by appellant are either without merit or consideration of them is unnecessary in light of the disposition of this ease.
The judgment of the District Court is reversed and the case is remanded with instructions to grant the appellant a new trial.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_applfrom
|
L
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERV-AIR, INC., Respondent.
No. 70-70.
United States Court of Appeals, Tenth Circuit.
Sept. 9, 1970.
Glen Bendixsen, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore and Robertamarie Kiley, Attys., N. L. R. B., on the brief), for petitioner.
Frank Carter, Enid, Okl. (Stephen Jones, Enid, Okl., on the brief), for respondent.
Before BREITENSTEIN, HILL and HOLLOWAY, Circuit Judges.
HILL, Circuit Judge.
The National Labor Relations Board is before this court petitioning for enforcement of its supplemental order issued against Serv-Air, Inc., requiring the latter to reinstate R. A. Chodrick to his former position. The order was made on a finding of an unfair labor practice by Serv-Air, in violation of section 8(a) (3) and (1) of the Act. The familiar issue posed is whether substantial evidence supports the decision that Serv-Air suspended and demoted Chodrick in violation of the Act.
R. A. Chodrick was first employed by the Company in 1960 as a hand lineman at Vance Air Force Base. About six months later he was advanced to crew chief of fire fighters. In 1964 the firemen were unionized; Chodrick joined and became a shop steward.
Chodrick has undeniably been a union activist. Since June, 1964, he has served on the union’s negotiation committee; in September, 1964, he led a union walkout; and in February, 1966, he was a leader of a group attempting to present the company with a written grievance over the training schedule. The latter incident resulted in the firing of Chodrick and six others when they refused to drill. Chodrick’s discharge was reduced to a suspension but there has been continued friction between the crew chief and his superiors.
Out of this background arose the incident relevant to this petition for enforcement. In July, 1966, the Company altered its pay procedures by depositing employee salaries in a bank rather than paying the sum directly to each employee. Because of the obvious inconvenience resulting from the change, many of the employees became upset; most considered it to be a thinly veiled attempt to coerce them into opening accounts in the bank because Serv-Air’s president was a stockholder and board member of that bank.
On August 6, 1966, two fire fighters (union members) at Vance Air Force Base left their jobs without permission, apparently to protest the change in pay procedures. For leaving their duty post each was immediately suspended. The next day Chodrick’s crew went on duty. Because men on the earlier shift had reported being bitten by bugs Chodrick’s crew, with his permission, decided to scrub down their sleeping quarters and air out their mattresses. The mattresses were taken outside — two were passed through a window resulting in about $8.00 damage — and laid out to air. The crew then went to chow.
Meanwhile, Terrell, the Assistant Fire Chief, was notified and went to the crash station. After observing the situation and apparently assuming it was a protest related to the suspension of the two union men on the previous day, he called Moxley, the Fire Chief, saying he thought he had “an incident” on his hands. Moxley told Terrell to get the Air Force Security Police, have photographs taken, and a report made. Next Terrell sought out Chodrick and requested an explanation. The reply was that the men were simply attempting to air out the mattresses to rid them of bugs.
Subsequently, Cumpston, director of base operations, asked Moxley what had caused the incident and Moxley answered: “You know as well as I know.” Then, referring to Crew Chief Chodrick, he said: “It looks like this man is continually giving us trouble. It looks like he’s come to the final point. We are going to have to take some action on the individual.” Thereafter Chodrick was suspended for a day and demoted to crash-fireman.
The Company argues that Chodrick’s union activities had nothing to do with the discipline. In their words, “he was laid off because of failure to perform as Crew Chief, his arrogant attitude, his unwillingness to follow prescribed rules and regulations established by Serv-Air, Inc., and the United States Air Force and his callous disregard for the safety of his men.”
Chief Moxley, by his testimony, presented a good case for the Company. But that testimony notwithstanding, the Examiner’s findings are supported by substantial evidence. The Examiner’s observations are clear, pertinent, and concise, and the following excerpts summarize our own conclusions.
“[Ajlthough the purport of Moxley's testimony is that in his opinion Chod-rick had been an unsatisfactory crew chief over a long period of time, Mox-ley was unable to advert to any specific misconduct or act of misfeasance on the part of Chodrick occurring later then [sic] April, 1965 (except for incidents which the Board in prior proceedings found were within the protection of the Act) other than matters which had been continuing for long periods of time.”
“The strenuous effort on the part of respondent to create the appearance of a serious dereliction by Chodrick and members of his crew from something so trivial suggests that Respondent was looking for an opportunity (and judging from the incident onto which it lached — no matter how slight or trivial) for demoting Chodrick. To the argument that the August 7 incident was merely the last straw that broke the camel’s back, it is noted that Respondent was able only to point to outdated misdeeds on the part of Chodrick to demonstrate his unfitness for his job, and several of those matters were incidents with respect to which the Board has found that the Respondent had acted unlawfully. Accordingly, I find no merit to Respondent’s defense that Chodrick was disciplined on August 7, 1966, for ‘good and just cause.’ ”
Serv-Air also charges that the Board violated its rules and regulations in denying the Company’s motions for reopening, reconsideration and rehearing of the case to permit introduction of new and material evidence. A bit of background information is necessary to fully comprehend the argument. The Board’s initial decision in this case issued June 27, 1967. On January 17, 1968, this court issued its decision in a related case, Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557 (10th Cir. 1968), reversing a part of the Board’s decision and remanding that case to the Board for reconsideration. Inasmuch as some of the Board’s findings in the instant case were based on the earlier decision, enforcement proceedings were held in abeyance while the earlier decision was reconsidered. On September 4, 1969, following modification by the Board of its earlier decision, the Board sought the position of the parties as to the effect of such modification on the instant decision. On October 21, 1969, the Board issued a supplemental decision in the present case, reversing it with respect to the discharge of another employee, but reaffirming with respect to the suspension and demotion of Chodrick.
On November 21, 1969, the motions for reconsideration, rehearing and reopening of the record were filed by Serv-Air. The substance of those motions concerns findings by a federal district court in an independent civil proceeding which Serv-Air claims to be related to the same incident over which Chodrick was suspended and demoted.
Under section 10(e) of the Act we are empowered to order a remand where it is shown that the “evidence is material and there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board.” That is the same test contained in the Board’s regulations.
Without considering the reasonableness of the failure to adduce the alleged new evidence, we do not consider the district court findings to be of sufficient materiality to the instant suit to call for a reopening, reconsideration or rehearing. The incident over which the civil suit was litigated occurred more than one year prior to Chodrick’s suspension and demotion. Moreover, the primary reason given for the demotion and suspension concerned only the mattress incident and not the June, 1965, occurrence. And it is of more than casual interest to us that although the Company now attaches great significance to the June, 1965, incident, the record reveals that no disciplinary action whatsoever was taken against Chief Chodrick at the time of the June, 1965, fire, or subsequently. On this state of the record we cannot justify Serv-Air’s motions and conclude that the Board was within its discretion in denying same.
Enforcement of the order of the National Labor Relations Board is hereby granted.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
ROBINSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 6125.
Circuit Court of Appeals, Sixth Circuit.
March 17, 1933.
A. J. Levin, of Detroit, Mich. (Butzel, Levin & Winston, of Detroit, Mich., and Frederick L. Pearce, of Washington, D. C., on the brief), for petitioner.
J. Louis Monarch, of Washington, D. C. (G. A. Youngquist, Sewall Key, Wm. Cutler Thompson, C. M. Charest, and Frank T. Horner, all of Washington, D. C., on the brief), for respondent.
Before MOORMAN, HICKENLOOPER, and SIMONS, Circuit Judges.
MOORMAN, Circuit Judge.
Bernard Wurzburger and Ms wife, Laura Wurzburgor, were residents of Michigan from 1910 until his death on July 10, 1926. Prior to September 8, 1916, the effective date of the first federal estate tax (39 Stat. 777), they acquired two pieces of real estate as tenants by the entirety. Upon the death of the husband the Commissioner assessed an estate tax against the properties. The Board of Tax Appeals affirmed (21 B. T. A. 1373), and the petitioner, executor of the husband’s estate, appeals, contending that section 302 (e) (h) of the Revenue Aet of 1924 (43 Stat. 304, 305 (26 USCA § 1094 note) is unconstitutional, in so far as it requires the inclusion in the gross estate of a decedent of the value of real estate acquired by a decedent and spouse as tenants by the entirety prior to September 8, 1916.
“Tho clear language of the 1924 statute repels the notion that it has no application to joint tenancies created prior to September 8, 1916.” Gwinn v. Commissioner of Internal Revenue, 287 U. S. 224, 53 S. Ct. 157, 158, 77 L. Ed.- (December 5, 1932). Whether its application in the present case is within the limitations of the Constitution depends upon the existence of a taxable event after September 8> 1916, to which it may attach. The death occurred after that date, and if it was a “generating source of definite accessions to the survivor's property rights,” then the tax was constitutionally levied. Sueh was held to he the effect of the death of the joint tenant in the Gwinn Case and in Third National Bank v. White, Collector, 53 S. Ct. 290, 77 L. Ed. -. In the latter ease, the Supreme Court affirmed the decision of the Court of Appeals [58 F.(2d) 1085] sustaining a'judgment of the District Court applying the tax to a tenancy created prior to 1916 [45 F.(2d) 911],
The petitioner relies upon a statement in the Gwinn Case to the effect that under the laws of California the estate could have been terminated by conveyance by either party, through proceedings for partition, or by involuntary alienation by execution. The Third National Bank Case he seeks to distinguish upon tho authority of a brief filed in that ease, citing Massachusetts eases holding that the rights of tho wife in property held by the entirety are subordinate to those of her husband.
It does not seem necessary to examine into the details of the rights of tenants by the entirety under the laws of Massachusetts and California as compared with those in Michigan. The law of Michigan is that prior to the- death. of one tenant neither can convey “without the .other joining in the conveyance.” Naylor v. Minock, 96 Mich. 182, 184, 55 N. W. 664, 665, 35 Am. St. Rep. 595. In Tyler v. United States, 281 U. S. 497, 503, 504, 50 S. Ct. 356, 359, 74 L. Ed. 991, 69 A. L. R. 758, it was said': “Before the death .of. the husband- (to take the Tyler Case, No. 428) the wife had the right to possess and use the whole property, but, so also, had her husband; she could not dispose of the property except with her husband’s concurrence; her rights were hedged about at all points by the equal rights of her husband. At his death, however, and because of it, she, for the first time, became entitled to exclusive possession, use and enjoyment; she ceased to hold the property subject to qualifications imposed by the law relating to tenancy by the entirety, and became entitled to hold and enjoy it absolutely as her own; and then, and then only, she acquired the power, not theretofore possessed, of disposing of the property by an exercise of her sole will. Thus tlje death of one of the parties to the tenancy became the ‘generating source’ of important and definite accessions to the property rights of the other.”
It is also the law of Michigan that an estate by entirety cannot be devised. Webber v. Webber, 217 Mich. 178, 185 N. W. 761. Upon the death-, therefore, of the decedent, his wife for the first time ceased to hold her interest in the property subject to the disabilities' and qualifications imposed by the grant and became entitled to exclusive possession, use, and enjoyment of the whole property. This was,a definite accession to her propei*ty rights under the rulings in the Tyler 'and Gwinn Cases. Cf. O’Shaughnessy v. Commissioner, 60 F.(2d) 235, 237 (6 C. C. A.).
The second question involved in the case relates to a bank deposit in the joint names of the decedent and his wife, payable to both or either or the survivor. The Revenue Act, section 302 (e), 26 USCA § 1094 note, requires that there be included in the estate of a decedent the entire amount of joint bank deposits, “except such part thereof as may be shown to have originally belonged” to the. survivor. No evidence was offered tending to show that any part of this deposit belonged to Laura Wurzburger. The contention is that, in- the absence of proof that it did or did not belong to her, the presumption of equal ownership created by the Compiled' Laws of Michigan, 1915, § 8040, must prevail, Murphy v. Michigan Trust Co., 221 Mich. 243, 246, 190 N. W. 698. It is accordingly contended that one-half of the amount on deposit should have been excluded from decedent’s gross estate. But the Revenue Act provides that all of the amount of such deposit shall be included in the decedent’s estate, except such part as may be shown to have originally belonged to the survivor. This provision cannot, we think, be vitiated by a state court decision construing a state statute as giving rise to a presumption. Burk-Waggoner Oil Ass’n v. Hopkins, 269 U. S. 110, 46 S. Ct. 48, 70 L. Ed. 183; Weiss v. Wiener, 279 U. S. 333, 49 S. Ct. 337, 73 L. Ed. 720. As said in New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 372, 38 S. Ct. 535, 536, 62 L. Ed. 1167, “the question of burden of proof is a matter of substance and not subject to control by laws of the several states.” Commissioner v. Olds (C. C. A.) 60 P. (2d) 252, 254, is not to the contrary. All that was held there was that the Board of Tax Appeals had the right to receive evidence that would have been admissible in the courts of the state where the contract was to be performed.
The order of the Board is affirmed.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee-Cross-Appellant, v. John W.S. McCORMICK, Defendant-Appellant-Cross-Appellee.
Nos. 694, 854, Dockets 92-1470, 92-1482.
United States Court of Appeals, Second Circuit.
Argued Feb. 18, 1993.
Decided April 28, 1993.
Bobbi C. Sternheim, New York City (Barry M. Fallick, Rochman Platzer Fallick Ros-marin & Sternheim, of counsel), for defendant-appellant-cross-appellee.
John M. Conroy, Asst. U.S. Atty., Burlington, VT (Charles A. Caruso, U.S. Atty., David V. Kirby, Chief, Crim. Div., of counsel), for appellee-cross-appellant.
Before: OAKES, ALTIMARI and MAHONEY, Circuit Judges.
OAKES, Circuit Judge:
This appeal raises the question whether the Double Jeopardy Clause prohibits the conviction and imposition of a sentence for an offense where the same offense was used in a prior proceeding to increase the defendant’s offense level under the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”). Defendant John McCormick appeals and the government cross-appeals an order by the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, granting in part and denying in part a motion by McCormick to dismiss a 41-count indictment on double jeopardy grounds. The district court determined that those counts, and only those counts, of the Vermont indictment that had been used to determine McCormick’s sentence in a separate Connecticut proceeding had to be dismissed. United States v. McCormick, 798 F.Supp. 203 (D.Vt.1992). For the reasons set forth below, we affirm.
BACKGROUND
McCormick was charged in the District of Connecticut with bank fraud and related crimes in a 31-count indictment. The loss resulting from these crimes totaled approximately $75,000. A few months later, McCormick was charged in the District of Vermont with bank fraud, mail fraud, and related crimes in a 41-count superseding indictment. The losses resulting from these alleged crimes exceeded $4 million. Following a jury trial, McCormick was convicted on all counts in the Connecticut indictment.
At sentencing, the government filed a sentencing memorandum describing not only McCormick’s fraudulent conduct in Connecticut but similar schemes to defraud that allegedly took place in other states, including Vermont. These other schemes were offered as relevant conduct pursuant to Guidelines § 1B1.3(a)(2). This section directs the sentencing court, when determining the amount of loss for the purpose of calculating the offense level for fraud, to consider acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction____” U.S.S.G. § lB1.3(a)(2). Accordingly, the government argued that the loss arising from McCormick’s conduct fell between the $25& million to $5 million range, calling for a 13-level increase from the base offense level of six for fraud convictions. See U.S.S.G. § 2F1.1(b)(1)(N).
In the government’s communications with the Connecticut district court concerning sentencing, the government addressed the possibility several times that the use of the Vermont conduct in sentencing would preclude further prosecution of McCormick in Vermont for that conduct. For example, the United States Attorney’s Office for the District of Connecticut represented in a letter to the court that “[a] sentence based in part on the Vermont conduct will have the effect of barring further prosecution on the Vermont charges.” The letter further stated that, if the district court accepted the offense level enhancement based on the Vermont conduct, the “United States Attorney’s Office for the District of Vermont feels that although such a sentence would preclude the defendant’s conviction on additional felony counts in their District, the ends of justice will have been served....” At the sentencing hearing, the government partially retreated from these statements, claiming that the U.S. Attorney’s Office in Vermont was unsure whether it would be barred from further proceedings but that it would “not be likely to pursue their charges____”
The Connecticut court accepted the government’s argument and increased McCormick’s offense level by 13. Moreover, the court added two more offense points for “more than minimal planning,” pursuant to U.S.S.G. § 2F1.1(b)(2), creating a total offense level of 21. The Guidelines sentencing range based on an offense level of 21 and a criminal history category of I, McCormick’s category, is 37 to 46 months. The court sentenced McCormick to the top of this range, ordering him to serve concurrent terms of 46 months on each count of the conviction, in addition to a 3 year term of supervised release and restitution. This court by summary order affirmed McCormick’s sentence, thus holding that the district court in Connecticut did not err by considering the Vermont frauds in calculating McCormick’s sentence. United States v. McCormick, 969 F.2d 1042 (2d Cir.1992) (Table).
Following the Connecticut sentencing, McCormick submitted a motion to the Vermont District Court requesting that the Vermont indictment be dismissed on the grounds that prosecution would violate the Double Jeopardy Clause of the Fifth Amendment. The district court found that further prosecution was barred by the Double Jeopardy Clause only on those counts that were used by the Connecticut court in raising the offense level. On appeal, McCormick argues that all counts should be covered by the Double Jeopardy Clause and, on cross-appeal, the government challenges the district court’s finding that there is any double jeopardy problem at all.
DISCUSSION
The Double Jeopardy Clause provides that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Clause protects against both a subsequent prosecution for the same offense after acquittal or conviction as well as multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); see also Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873) (“[T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.”). At issue in this case is whether the prosecution of conduct that has already been used to determine a Guidelines offense level violates the multiple punishments prong of the Double Jeopardy Clause.
New courts have addressed this particular question. The district court and McCormick rely on the reasoning of United States v. Koonce, 945 F.2d 1145 (10th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1695, 118 L.Ed.2d 406 and cert. denied, — U.S. —, 112 S.Ct. 1705, 118 L.Ed.2d 413 (1992). The Koonce court identified three issues to be considered in determining whether the Double Jeopardy Clause prohibited the defendant’s prosecution for possession of a controlled substance in the District of Utah, given that the drug possession had already been used to increase the defendant’s offense level in sentencing for a separate offense in the District of South Dakota. The court considered whether increasing the offense level in light of the related conduct is “punishment” within the meaning of the Double Jeopardy Clause, whether Congress intended a defendant to be subjected to two punishments for that conduct, and whether the imposition of concurrent rather than consecutive sentences avoids double jeopardy issues. The court ultimately found that prosecution on the possession charge in Utah would violate the defendant’s constitutional rights.
The district court in Vermont applied the Koonce analysis to McCormick’s case and found that the Double Jeopardy Clause would be violated if McCormick were punished additionally for any of the counts that the Connecticut court considered in raising McCormick’s offense level. We agree with the district court’s analysis and findings: prosecution of McCormick in Vermont for conduct that was already incorporated into his Connecticut sentence would be a second punishment, Congress did not intend to allow multiple punishments for this type of conduct, and the availability of concurrent sentences does not eliminate this double jeopardy problem.
Application of the first part of the Koonce analysis is straight-forward and resolves McCormick’s contention that the district court should have granted his motion to dismiss every count of the Vermont indictment. McCormick was punished for the Vermont conduct that was taken into account by the Connecticut court when it determined the amount of loss for which McCormick was responsible. The government requested that the court take this conduct into account, the court explicitly stated that it was taking the conduct into account, and the ultimate sentence reflects part of McCormick’s Vermont conduct. Thus, any further prosecution of McCormick for this conduct would subject him to the possibility of multiple punishments for the same conduct. However, those counts of the indictment that did not affect the Connecticut court’s Guidelines calculations are not similarly barred from use. McCormick offers no evidence that the Connecticut court did in fact incorporate the counts that were not dismissed into its calculations and, therefore, prosecution for those counts cannot constitute a second punishment in violation of the Double Jeopardy Clause.
The second step of the Koonce analysis, determining whether Congress intended to allow the same conduct to be punished under both the Guidelines and a subsequent prosecution, raises the most difficult issue of this case. To begin with, Congress may authorize several penalties for the same act. The multiple punishments prong of the Double Jeopardy Clause limits prosecutorial and judicial action but does not prevent the legislature from assigning multiple punishments for the same conduct. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). As stated by the Koonce court, “[i]f Congress did intend multiple punishments for a single act, then for the purposes of Double Jeopardy analysis the combined punishment would simply be viewed as the appropriate punishment determined by Congress to represent the gravity of the offense and it would be upheld.” Koonce, 945 F.2d at 1150. However, “[ajbsent evidence to the contrary, it is assumed ‘that Congress ordinarily does not intend to punish the same offense under two different statutes.’ ” Id. at 1151 (quoting Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740 (1985)).
An examination of the Guidelines suggests that Congress did not intend to allow additional punishment for conduct that was used to enhance a defendant’s offense level. Congress authorized the creation of the Guidelines in significant part to respond to the lack of consistency in sentences imposed by the federal courts and supervised by the Parole Commission. S.Rep. No. 225, 98th Cong., 2d Sess. 38-39 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3221-22. See also U.S.S.G., Ch. 1, Pt. A(3), policy statement (“Second, Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders.”). As part of the effort to achieve consistency in sentencing, the Guidelines attempt to group similar harms and to standardize the punishment that is to be applied to the conduct as a whole. See U.S.S.G. Ch. 1, Pt. A(4)(e), policy statement (multi-count convictions); cf. United States v. Merritt, 988 F.2d 1298, 1307-08 (2d Cir.1993) (comparing Guidelines “highly detailed categorization of offense conduct” with the minimal direction provided for evaluating the character of the defendant).
The District of Connecticut’s use of McCormick’s Vermont conduct to determine McCormick’s sentence was accomplished under U.S.S.G. § 1131.3(a)(2), the Guidelines provision designed to allow courts to account for similar conduct and punish for the aggregate relevant conduct. See U.S.S.G. § 1B1.3, comment, (n. 3); see also U.S.S.G. § 3D1.2 (“All counts involving substantially the same harm shall be grouped together into a single Group.”). This approach of determining a single punishment for a set of similar acts is specifically called for in cases of fraud. See U.S.S.G. § 2F1.1, comment, (n. 6) (“The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level....”). Fraud cases require this special treatment because “federal fraud statutes are so broadly written” that “a single pattern of offense conduct usually can be prosecuted under several code sections, as a result of which the offense of conviction may be somewhat arbitrary.” U.S.S.G. § 2F1.1, comment, (backg’d.). Thus, the Guidelines achieve consistency in sentencing for fraud cases by grouping all of the relevant conduct and applying a single offense level to the whole course of conduct.
In light of the purpose and careful shaping of the Guidelines, we do not believe that Congress or the Guidelines Commission intended to allow a defendant to be prosecuted for conduct already used to enhance his or her offense level. To rule otherwise would undermine the purpose of the Guidelines and introduce additional possibilities for inconsistent sentences. As the Koonce court stated, “[i]t is difficult to believe that Congress would have intended the punishment to be larger if the government chose to proceed with two different proceedings ... than if it chose to consolidate all of the counts in one proceeding.” Koonce, 945 F.2d at 1152. Furthermore, consolidation of punishment in a single proceeding avoids the problem of requiring a sentencing court to anticipate whether it is punishing conduct that may also be punished in another proceeding.
The third step in the Koonce analysis considers whether double jeopardy questions may be avoided if a second punishment consists of a concurrent rather than a consecutive sentence. As the district court and Koonce court realized, this issue was resolved by the Supreme Court in Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). The Ball Court recognized that even if a second conviction results in no greater sentence, a “separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored.” Ball, 470 U.S. at 865. Among the potential collateral consequences of conviction the Court mentioned are increased sentences under recidivist statutes and the extra societal stigma that comes from conviction, including possibly effects upon other state proceedings, past or present. Therefore, the availability of concurrent sentences does not eliminate double jeopardy concerns.
Although we find that the Double Jeopardy Clause precludes McCormick from being prosecuted for conduct that was used to enhance his offense level under the Guidelines, we recognize that at sentencing “justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937). Accordingly, there are a number of cases which have upheld a conviction and punishment for conduct that was previously used to enhance a defendant’s sentence for other conduct. Indeed, nothing we have said should be read as undermining the historic authorization of a sentencing judge “to consider all of the aggravating and mitigating circumstances involved in the crime.” Williams, 358 U.S. at 585, 79 S.Ct. at 427.
The critical distinction between these other cases and McCormick’s case is found in our analysis of congressional intent. If Congress intends to allow the same conduct to be used to enhance a sentence and to serve as the basis for a separate prosecution, the Double Jeopardy Clause does not stand in the way. However, as we have discussed, there is much evidence to suggest that Congress intended to consolidate the punishment for certain conduct, such as fraud, when it created the Guidelines scheme that allows for changes to a defendant’s offense level based on related acts. For this reason, the Double Jeopardy Clause precludes any prosecution of McCormick in Vermont based on the conduct used by the Connecticut court to increase his offense level.
CONCLUSION
Accordingly, the order of the district court is affirmed.
. Excluding the Vermont conduct, McCormick’s offense level would have been subject to a 5-level increase for a loss exceeding $40,000. U.S.S.G. § 2F1.1(b)(1)(F).
. The policy of grouping similar harms established in the Guidelines also serves to minimize the risk of prosecutorial manipulation of the counts charged in an indictment. The Guidelines state that "the Commission has written its rules for the treatment of multicount convictions with an eye toward eliminating unfair treatment that might flow from count manipulation." U.S.S.G. Ch. 1, Pt. A.4(a), policy statement.
. The dissent suggests that "§ 5G1.3 recognizes and explicitly addresses the sentencing problem posed by successive prosecutions in which an overall course of conduct is segmented into separate criminal charges....” The problem with this analysis is that § 5G1.3 does not apply to McCormick's situation. Section 5G1.3(b), the relevant provision of § 5G1.3, applies where a defendant’s offense level in a second prosecution is set taking into account conduct that has already been the subject of a conviction and sentencing. In contrast, McCormick’s first conviction and sentencing took into account conduct that is now the subject of a second prosecution. In the first case, covered by § 5G1.3(b), the Sentencing Commission requires concurrent sentencing in order to avoid multiple punishments. In the second case, presented by McCormick, multiple punishments can only be avoided by precluding a second prosecution.
. The government's conduct in this case lends additional support to the district court’s decision to dismiss those counts of the Vermont indictment that were used to enhance McCormick's offense level. Although it is true that at sentencing the government retracted its earlier categorical claim that the U.S. Attorney’s Office in Vermont would not pursue additional felony counts in Vermont, the government continued to make statements that may have confused the Connecticut court. For example, after retreating from its earlier claims, the government nonetheless stated that ”[i]t would appear that [the U.S. Attorney’s Office in Vermont] would not be likely to pursue their charges....” As a result, the Connecticut court may have sentenced McCormick with the understanding that McCormick would face no other punishment for that conduct.
It is thus unfortunate that the double jeopardy issue need be addressed by this court at all. As we have said before, the double jeopardy concerns brought forward by this case would not have arisen if the United States Attorneys’ offices in Connecticut and Vermont had followed the customary and better practice of making an agreement that sentencing would be resolved entirely in Connecticut. United States v. McCormick, 969 F.2d 1042 (2nd Cir.1992).
. See, e.g., Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) (no constitutional bar to considering at sentencing for one offense criminal conduct that was the subject of a separate offense); United States v. Carey, 943 F.2d 44 (11th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1676, 118 L.Ed.2d 394 (1992) (two-level increase for obstruction of justice based on defendant's failure to appear does not preclude later prosecution for this act); United States v. Mack, 938 F.2d 678 (6th Cir.1991) (defendant's failure to appear for sentencing, for which he was later indicted, resulted in sentence in high end of guidance range); United States v. Williams, 935 F.2d 1531, 1539 (8th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1992) (enhancement of defendant’s criminal history category and imposition of a sentence based on the same conduct does not violate the Double Jeopardy Clause).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_majvotes
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Roland Carl SHELVY, Appellant, v. Salanda WHITFIELD, et al.
No. 82-1921.
United States Court of Appeals, District of Columbia Circuit.
Calendared April 27, 1983.
Submitted Sept. 1, 1983.
Decided Sept. 16, 1983.
Roland Carl Shelvy, on brief, pro se. Stanley S. Harris, U.S. Atty., Michael W. Farrell, John R. Fisher, and Daniel S. Seikaly, Asst. U.S. Attys., Washington, D.C., on brief, for appellees.
A. Franklin Burgess, Jr., (appointed by this court) and Robert P. Mosteller, Washington, D.C., on brief, for amicus curiae urging reversal.
Before GINSBURG and SCALIA, Circuit Judges, and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
Dissenting opinion filed by Senior Circuit Judge BAZELON.
GINSBURG, Circuit Judge:
This case concerns the calculation of credit for presentence time spent in custody. Petitioning for a writ of habeas corpus, Roland Shelvy claimed that he should receive, in addition to the 233 days of credit allowed by the District of Columbia Department of Corrections, a further credit' of approximately six months. The district court denied Shelvy’s application; it held that the statute governing presentence credit, 18 U.S.C. § 3568, does not permit the relief Shelvy seeks. We affirm the district court’s judgment. Our holding rests on two interrelated conclusions. Both grounds of decision stem from a principal objective of Congress in enacting 18 U.S.C. § 3568: to “remove confusion,” “produce certainty,” and “prevent juggling” as to the date on which a sentence commences. See S.Rep. No. 803, 72d Cong., 1st Sess. 2 (1932); H.R. Rep. No. 960, 72d Cong., 1st Sess. 2 (1932).
First, we conclude that credit for presentence time spent in custody against one or more eventual sentences continues until a defendant commences service of a sentence; but once a defendant actually commences service of a sentence, presentence credit ceases. Upon the prisoner’s reception at the institution for service of that sentence, or commitment to a place of detention to await transportation to the place at which the sentence shall be served, other pending charges do not extend the prisoner’s eligibility for credit for time spent in custody prior to the imposition of a sentence. Second, we conclude that a second sentence ordered to run concurrently with a sentence earlier imposed runs with the remainder of the earlier sentence.
I.
Shelvy was charged, held in presentence custody, and eventually sentenced in two separate proceedings. He was arrested on September 24, 1969, on charges of armed robbery, robbery, and two counts of assault with a dangerous weapon (case 1). He alleges that on the same day, he was also arrested and charged with murder (case 2). Shelvy has remained incarcerated since his arrest.
Case 1 was tried before a jury on March 11, 1970. Shelvy was found guilty on three counts. On May 15,1970, he was sentenced to imprisonment for six to eighteen years for armed robbery, and two to six years on each of the assault counts. These sentences were ordered to run concurrently.
In case 2, Shelvy entered a plea of guilty to second degree murder on October 13, 1970. On November 20, 1970, he was sentenced to the maximum term authorized for this offense, imprisonment for fifteen years to life. The district judge ordered the sentence to run concurrently with any sentence then being served.
Shelvy has received credit against both sentences for the period between September 24,1969, the date of his arrest, and May 15, 1970, the date he was sentenced in case 1. Despite commencement of the case 1 sentence on the latter date, Shelvy claims he is entitled to presentence credit in case 2 for the period from May 15, 1970, until November 20, 1970, the date on which the case 2 sentence commenced. In effect, he urges that we hold both sentencing dates irrelevant, and direct that he receive credit against the longer sentence — the one in case 2 — for every day he has been incarcerated since his arrest on September 24, 1969.
II.
The statute controlling credit for time spent in custody prior to the imposition of sentence provides, in relevant part:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed....
No sentence shall prescribe any other method of computing the term.
18 U.S.C. § 3568 (emphasis added). The district court held that the underscored language foreclosed Shelvy’s claim:
[F]rom May 15[, 1970,] on, the petitioner was incarcerated pursuant to his sentence in case 1; this being so, [he] was not spending [that time] in custody “in connection with the offense in [case 2]” and, hence, he is not entitled to credit for this time served.
Shelvy v. Whitfield, No. 82-1555, slip op. at 2 (D.D.C. July 30, 1982).
We recognize the force of the district court’s position. However, Shelvy’s case has an anomalous aspect: If the two sentence dates had been interchanged — the case 2 (murder) sentence imposed on May 15, 1970, the case 1 (robbery) sentence on November 20, 1970 — it appears that Shelvy would have been entitled to the six months credit he seeks. He would have received credit for presentence custody up to May 15, 1970, and for service of the case 2 sentence thereafter. In this hypothetical situation, there would have been no need to answer the question whether credit should have accrued against the case 1 sentence during the period May 15, 1970, to November 20,1970, for the absence of credit would have had no effect on the total period of incarceration; the case 1 sentence, six to eighteen years, even with no credit gained from May 15,1970, to November 20,1970, if ordered to run concurrently with the case 2 sentence, would have fit entirely within the latter, fifteen years to life, sentence.
Shelvy appeared pro se in the district court and on appeal. Because we believed he might have an arguable point, we invited the Public Defender Service to assist the court by submitting a brief, amicus curiae. That brief cogently points out that because Shelvy’s sentence in case 1 is totally subsumed within the considerably longer, concurrently running sentence in case 2, credit against the case 1 sentence, for all practical purposes, is meaningless. Credit against that sentence alone cannot shorten the time Shelvy will spend in prison.
III.
We are impelled to agree with the district court that Shelvy is not entitled to any additional “credit for time [he spent] in custody prior to the imposition of sentence.” See 18 U.S.C. § 3568 (caption) (emphasis added). First, the section in question fixes the time when a sentence commences. Beyond debate, Shelvy commenced serving a sentence on May 15, 1970. Next, the section provides for presentence credit. Congress has consistently described this provision as aimed at credit for confinement before and during trial, and not at credit for any post-sentence custody. See S.Rep. No. 750, 89th Cong., 1st Sess. 21 (1965) (amendments extending section 3568 to nonbailable offenses and lifting its limitation to statutes with minimum mandatory sentences were designed to “guarantee[] credit for pretrial custody”); H.R.Rep. No. 2058, 86th Cong., 2d Sess. 1 (1960) (purpose of amendment to section 3568 “is to make clear that the defendant receives credit for time spent in custody not only prior to trial but during the trial,” and “also to exclude credit for time spent in custody after sentence, such as while on appeal”). Once a sentence is imposed and becomes operative for the period of time at issue, it is artificial to maintain that custody nonetheless retains its preconviction character, that it remains conditional, unsettled, still dependent upon (and therefore “in connection with”) a trial court’s eventual disposition of other charges not yet adjudicated.
Moreover, were we to read 18 U.S.C. § 3568 as authorizing presentence credit for time a prisoner serves after the imposition of a first sentence, we would alter the instruction a trial judge signals when he or she orders that the sentence imposed shall run concurrently with any sentence then “being served.” For example, assume a trial judge imposed a one-year sentence on a defendant and ordered it to run concurrently with a one-year sentence then being served, eight months of which had elapsed. We have little doubt that the sentencing judge in such a case would envision a second sentence outlasting the first by eight months. Precedent in point confirms that a federal sentence made concurrent with a sentence already being served does not operate in a “fully concurrent” manner. Rather, the second sentence runs together with the remainder of the one then being served. See United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980); Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir.1972).
In his pro se brief, Shelvy correctly points out that the presentence credit for which 18 U.S.C. § 3568 provides is responsive to the situation of a person held in custody because of inability to make bail. See Brief for Appellant at 2. The current statute covers such cases and more. It applies to incarceration prior to the imposition of any sentence where the person is charged with a nonbailable offense or is not released pre-sentence for some other reason, for example, where a person is initially detained as a juvenile but later tried as an adult. Indeed, if the statute limited credit to days spent in custody because of inability to make bail, it appears that Shelvy would not have an arguable ease even for the credit accorded him. Jail records indicate that, while Shelvy was held in lieu of a money bond in case 1, the armed robbery case, he was held without bond in case 2, the murder case. See Brief for Amicus Curiae at 1. We therefore find unpersuasive the central assertion in Shelvy’s pro se brief that he was the victim of invidious discrimination because of his poverty.
The brief for amicus curiae suggests that we could grant “meaningful credit against the total period of [Shelvy’s] confinement,” and preclude the order of the two sentences from affecting the total time he serves, by “interrupting] the running of [the sentence in case 1]” and “making it commence six months later on November 20,1970.” Brief for Amicus Curiae at 20. But the opening statement in 18 U.S.C. § 3568 provides:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence.
The concluding sentence of the section states:
No sentence shall prescribe any other method of computing the term.
Setting out the relevant legislative history, this court observed that Congress dominantly intended to provide “a firm date of sentence commencement.” United States v. Liddy, 510 F.2d 669, 674 (D.C.Cir.1974) (en banc), cert. denied, 420 U.S. 980, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975). The court in Liddy recognized authority in the district court to interrupt a sentence once it has commenced and thereby postpone the termination date of the sentence “beyond the time the sentence would have ended had it not been interrupted.” Id. We confront no such situation here. Neither district court order nor statute authorizes the interruption amicus suggests. We therefore have no warrant to treat the case 1 sentence as commencing six months after Shelvy was committed to a place of detention to await transportation to the penitentiary designated for service of that sentence.
Nor, in face of specific congressional instruction to the contrary, are we at liberty to regard the case 2 sentence as “commenc[ing] to run from some date prior to the sentence or some date before [Shelvy] actually commence[d] [its] service.” See S.Rep. No. 803, supra, at 2; H.R.Rep. No. 960, supra, at 2. Moreover, even if we were to ignore the concern of Congress embodied in 18 U.S.C. § 3568 to “prevent juggling with sentences,” id., and entertain the notion that “a sentencing judge has the discretion to provide that a sentence is to be retroactively concurrent with another sentence which has already been served,” it is evident that “no such order was made in this case.” See United States ex rel. Del Genio v. United States Bureau of Prisons, 644 F.2d 585, 589 (7th Cir.1980), cert, denied, 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808 (1981) (rejecting petitioner’s argument that a later sentence, ordered to run concurrently with an earlier one, should be treated as having commenced prior to the date it was imposed).
Shelvy’s case 2 sentence, as pronounced, runs concurrently with the case 1 sentence then being served. No statute authorizes us to amend that direction so that the sentence in case 2 not only runs concurrently with the remainder of the sentence in case 1, but is shortened by the time already elapsed on the prior sentence. The anomaly that Shelvy would have been entitled to consideration for release six months earlier had he been sentenced on the case 2 charge first is no more curious than the one suggested by respondents: had Shelvy been charged in case 2 the day after imposition of the sentence in case 1, none of his presentence detention would have served to reduce the period of his incarceration; he would not have received effective credit even for the 233 days between arrest and first sentencing.
Conclusion
We conclude that Shelvy is entitled to presentence credit only for days of incarceration during which he was not serving any sentence. He has received full credit for those days. We can accord him no more without straining the meaning of 18 U.S.C. § 3568 and departing from judicial understanding and precedent on what a “sentence to run concurrently with an earlier sentence” means. Therefore, the judgment from which this appeal has been taken is
Affirmed.
. Citing Preiser v. Rodriguez, 411 U.S. 475, 486-88, 93 S.Ct. 1827, 1834-35, 36 L.Ed.2d 439 (1973), the district court noted that although granting Shelvy’s application would not result in his immediate release from confinement, a habeas corpus petition appears to be an available means to seek the requested relief.
. Respondents stated that prison records indicated October 31, 1969, as the date of Shelvy’s commitment on the murder charge. The district court assumed, for purposes of ruling on Shelvy’s petition, that commitments in both cases occurred on September 24, 1969. See Shelvy v. Whitfield, No. 82-1555, slip op. at 1 n. 1 (D.D.C. July 30, 1982). We make the same assumption.
. Murder in the second degree, defined in D.C. Code § 22-2403, is punishable by imprisonment “for life or not less than 20 years.” D.C. Code § 22-2404. However, D.C.Code § 24-203, the Indeterminate Sentence Act, provides that a maximum sentence of life imprisonment must be accompanied by a minimum sentence not to exceed 15 years imprisonment. Thus Shelvy’s term was 15 years to life. Had the trial judge sentenced Shelvy to the lightest sentence permissible under § 22-2404, i.e., 20 years, § 24-203 would have made him eligible for parole in 6% years. See Frady v. United States Bureau of Prisons, 570 F.2d 1027, 1028-29 (D.C.Cir.1978) (quoting H.R.Rep. No. 677, 87th Cong., 1st Sess. 2 (1961)).
. The position that presentence credit does not include time spent serving another sentence is announced in instructions for administrative determinations of jail-time credit under 18 U.S.C. § 3568, see United States Department of Justice, Federal Prison System Program Statement No. 5880.24, para. 5.b.(2) (Sept. 5, 1979), and is reflected in prior court rulings. See O’Connor v. Rodgers, Habeas Corpus 233-68, aff’d, No. 22,853 (D.C.Cir. June 24, 1970) (noting that Chief Judge Bazelon would remand the case for clarification of the trial judge’s intention in the imposition of the concurrent sentences). We do not attribute precedential value to this court’s unpublished disposition. See D.C.Cir.R. 8(f). We simply note, in view of the dissent’s reading of the statute, that on a prior occasion, after full consideration, the court determined that the issue occasioned no need for an opinion. See D.C.Cir.R. 13(c).
. In Flores, the defendant was sentenced, after conviction, to ten years on one drug offense on February 12,1976, and, after a plea of guilty, to ten years on another drug offense on December 13, 1976, the latter sentence “ ‘to run concurrently with the sentence imposed [in the first case].’ ” 616 F.2d at 841. He sought, unsuccessfully, to vacate the second sentence, urging that he had entered the guilty plea on the misapprehension that the sentence would be considered to begin and terminate on the same dates as the prior sentence, and that his counsel had labored under the same misapprehension. The court held this erroneous construction of the meaning of a concurrent sentence insufficient to invalidate the plea bargain.
In Wilson, the defendant sought credit for 155 days actually served on a sentence imposed by the District Court for the District of Columbia against a longer sentence subsequently imposed by the District Court for the Southern District of New York and ordered to run concurrently with the District of Columbia sentence the defendant was then serving. Credit was denied on the ground that a sentence cannot commence prior to the date it was pronounced even if it is to be served concurrently with a sentence already being served. 468 F.2d at 584. As in the case before us, the defendant in Wilson was awarded credit against both sentences for the period he spent in federal custody (204 days) prior to the first, District of Columbia, sentence. Id. at 583.
. See S.Rep. No. 750, 89th Cong., 1st Sess. 21 (1965) (nonbailable offenses); Federal Bail Procedures: Hearings on S. 2838, S. 2839, S. 2840 Before the Subcomm. on Constitutional Rights and the Subcomm. on Improvements in Judicial Machinery of the Comm, on the Judiciary, 88th Cong., 2d Sess. 135-36 (1964) (juveniles-tried-as-adults and nonbailable offenses).
. At our request, amicus curiae’s brief centered on this question: “Given the fact that Mr. Shelvy would have received the six months credit he now seeks had the sentencing dates been reversed, does 18 U.S.C. § 3568 require a different result because the sentence in the robbery case came first?” Brief for Amicus Curiae at 6. The brief is a careful, comprehensive development of the arguments in support of six months additional credit for Shelvy. The dissent considers “essential” further supplemental briefing and argument. Dissent at 448. Yet it cites not a single decision that even squints in support of a different outcome in Shelvy’s case.
. No doubt “judicial power,” see dissent at 448, existed to render Shelvy eligible for parole earlier. The sentencing judge in case 2 could have shortened Shelvy’s second degree murder sentence. See supra note 3. Instead, in face of contemporaneous interpretation of 18 U.S.C. § 3568, see supra note 4, and extant administrative procedures for computing jail-time credit, he sentenced Shelvy to the statutory maximum.
. Brief for Respondent-Appellees at 6.
. The days would have been credited against the sentence in case 1, but there would have been no presentence credit at all against the considerably longer sentence in case 2.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_denovo
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's use of the standard of review, "de novo on facts" support the government?" The courts generally recognize that de novo review is impractical for the bulk of agency decisions so the substantial evidence standard helps provide a middle course. Consider the de novo review of administrative action, not de novo review of trial court by appeals court. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Babaui MALONE, Plaintiff-Appellant, v. NORTH AMERICAN ROCKWELL CORPORATION, a corporation, Defendant-Appellee.
No. 26009.
United States Court of Appeals, Ninth Circuit.
March 23, 1972.
Richard I. Wideman (argued), Los Angeles, Cal., for plaintiff-appellant.
Stephen E. Tallent (argued), Kenneth E. Ristau, Jr., of Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendant-appellee.
Charles L. Reischel (argued), Stanley P. Herbert, Gen. Counsel, Russell Specter, Deputy Gen. Counsel, Julia P. Cooper, Gen. Atty., Washington, D. C., for amicus curiae.
Before BROWNING, ELY and CHOY, Circuit Judges.
PER CURIAM:
Mrs. Babaui Malone appeals a district court order granting summary judgment dismissing her complaint charging her employer, North American Rockwell Corporation (North American), with job discrimination in violation of Title VII, the equal employment provisions, of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. We reverse and remand.
Mrs. Malone, a black, has been employed by North American since 1942. She has unsuccessfully sought promotion from her present classification of aircraft assembler to that of aircraft structure mechanic. In early 1967, North American promoted two Caucasian men from assembler to structure mechanic. Both had worked in the same unit as Mrs. Malone; both were below her in seniority.
Mrs. Malone then filed a grievance with her union agent contending that she had been denied promotion in violation of the union contract. The grievance was settled against her on July 12, and Mrs. Malone was so notified on August 27. On September 2, she mailed a charge to the Equal Employment Opportunities Commission (the EEOC), alleging racial discrimination in the promotion of the two men and in the settlement of her grievance. The EEOC immediately referred her charge to the California Fair Employment Practice Commission (the FEPC), in keeping with its policy of forwarding all discrimination charges to the responsible state agency in compliance with § 2000e-5(b). Mrs. Malone personally filed a charge with the FEPC on September 14.
After the sixty-day referral period required by § 2000e-5(b) elapsed, Mrs. Malone requested that the EEOC assume jurisdiction over her case. On February 13, 1968, the EEOC notified her that it had failed to obtain voluntary compliance by North American, and that she had thirty days in which to bring suit in the federal district court. In the interim, the EEOC had not investigated Mrs. Malone’s charge nor attempted conciliation. Mrs. Malone filed her suit on February 20, 1968. Her EEOC charge was not served upon North American until February 11, 1969.
The District Court granted summary judgment for North America, holding that it lacked subject matter jurisdiction because Mrs. Malone’s EEOC charge was not timely filed within the 210 days required by § 2000e-5(d), since the alleged discriminatory acts occurred approximately 330 days before the charge was actually filed in November, 1967. This construction of the statute penalized an employee who sought to adjust her dispute with her employer through the private machinery of the grievance procedure. While resort to contractual grievance procedures may delay somewhat the speedy resolution of discrimination disputes, it nevertheless encourages private settlement without resort to state or federal agencies or to the federal courts. Since Title VII seeks to utilize private settlement as an effective deterrent to employment discrimination, we hold that the 210-day statute of limitations is tolled while an employee in good faith pursues his contractual grievance remedies in a constructive effort to obtain a private settlement. Culpepper v. Reynolds Metal Co., 421 F.2d 888, 891 (5th Cir., 1970); Hutchings v. United States Industries, Inc., 428 F.2d 303, 308-309 (5th Cir., 1970). Cf. Schiff v. Mead Corp. (6th Cir., November 18, 1970). Mrs Malone’s EEOC charge was timely filed.
Reversed and remanded for further proceedings. Under the particular circumstances of this case and pursuant to § 2000e-5(k), we award $2,500 in attorney’s fees for services on this appeal to Mrs. Malone, that amount having been stipulated to as reasonable by North American’s counsel.
. The record does not disclose the exact date of the promotions. We accept the district court’s conclusion that they oc-currecl during January, 1967. Unless otherwise noted, all dates are 1967.
. We do not decide whether North American’s failure to promote Mrs. Malone constituted a “continuing act” of discrimination or whether the settlement of the grievance against her was in itself a discriminatory act.
Question: Did the court's use of the standard of review, "de novo on facts" support the government? The courts generally recognize that de novo review is impractical for the bulk of agency decisions so the substantial evidence standard helps provide a middle course. Consider the de novo review of administrative action, not de novo review of trial court by appeals court.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
SANTEE TIMBER CORPORATION v. ELLIOTT et al. KRUPNICK v. PEOPLE'S STATE BANK OF SOUTH CAROLINA et al.
No. 3564.
Circuit Court of Appeals, Fourth Circuit.
April 3, 1934.
Henry E. Davis, of Florence, S. C., and L. D. Lide, of Marion, S. C., for appellant.
Edward W. Mullins and William M. Shand, both of Columbia, S. C. (Nelson & Mullins and Bénet, Shand & McGowan, all of Columbia, S. C., on the brief), for appel-lees. N
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a decree on an intervening petition in the receivership proceedings of the failed People’s State Bank of South Carolina. The petitioner was the Santee Timber Corporation, which sought to impress a trust on assets in the hands of the receivers on account of deposits made with the bank in the latter part of the year 1931 amounting to $43,532.31. These deposits were made pursuant to contracts between the timber corporation, as seller of certain timber, the purchaser of the timber, and the Mercantile , Trust Compahy of Baltimore, the trustee under a deed of trust securing an issue of bonds. They were subject only to the cheek or order of the trust company. The timber corporation, which had assumed responsibility for the depository, had made payment to the trust company of the amount of the deposits, and all rights of the trust company therein had been assigned to it. The decree adjudged that the claim based on the deposits was without preferential status and dismissed the petition. The timber corporation has appealed.
The material facts are undisputed. In 19-28 the timber corporation entered into a contract for the sale of standing timber to the Tumer-Farber-Love Company, which assigned its rights under the contract to the Santee Hardwood Company. This contract provided that the purchaser should cut the timber on a certain tract of land and pay for same at agreed prices, the basic price being $7 per thousand feet, and should make payment on the 15th day of each month for all lumber shipped during the preceding month. Payment was to be made by depositing the amount due to the credit of the timber corporation in the People’s First National Bank of Charleston, S. C., the predecessor of the failed bank, or in such other bank or banks as might be designated by the timber corporation, that corporation “assuming all responsibility for the solvency of the depository.” The contract provided also that at the time of each monthly payment the purchaser should file with the timber corporation and with the “depository bank” an itemized statement of the lumber shipped during the preceding month.
Shortly after the making of this contract, the timber corporation executed a deed of trust to the Mercantile Trust & Deposit Company of Baltimore, the name of which has since been changed to Mercantile Trust Company, conveying certain property to that company as trustee and assigning to it the rights of the timber corporation under its contract with the Tumer-Farber-Love Company. One of the provisions of the deed of trust was that there should be paid to the trust company semiannually by the bank, acting as depository under the contract heretofore mentioned, “all moneys received by such depository” from the hardwood company to the extent of $6 per thousand feet, and that to this extent the amounts deposited to the credit of the timber corporation should be “subject only to the check or order of the Trustee.” So long as there was no default on the. part of the timber corporation, it was authorized to receive from the depository monthly, for its own use and benefit, the remainder of the moneys received by the depository from the hardwood company. Under the de-ed of trust, as well as under the contract, full responsibility for the depository was assumed by the timber corporation.
The hardwood company carried its general deposit account with the bank. Once each month it drew a cheek on this account for the amount due under its contract with the timber corporation, and this check, together with a copy of the itemized monthly statement provided for in the contract of sale, was sent to one K. E. Bristol, vice president and trust officer of the bank. The cheek was charged to the account of the hardwood company; and so much as was required to meet the conditions of the deed of trust was credited to the “Santee Corporation Sales Agreement Account,” an account carried in the savings department of the bank, and the remainder was credited to the general commercial account of the timber corporation. Every six months the amount accumulated in this “Sales Agreement Account,” with interest thereon, was remitted to the trust company and no compensation was paid to or retained by the bank on account of services rendered as trustee or otherwise. While the account was handled by its trust officer, there was no attempt to segregate or separately invest the funds deposited with it; and there is nothing to show that such segregation or separate investment was contemplated. On July 6, 1931, the bank remitted to the trust company in full for the amounts deposited to that date. The amount here involved represents deposits in the “Sales Agreement Account” made in the manner above described between July 1,1931, and December 31,1931, with interest on such deposits calculated to the latter date. The bank was placed in receivership January 2, 1932.
There can be no question, we think, but that a trust in favor of the trust company was created under the contract and deed of trust with respect to the debt of the bank created by the deposits made pursuant to their provisions; and if the timber corporation, relying upon the fact that the deposits were made in the “Timber Sales Account” carried in its name, were claiming the credit balance as its own and denying the right of the trust company, a trust in favor of the latter would unquestionably be declared. Stickney v. General Electric Co. (C. C. A. 4th) 44 F.(2d) 362. But to say that a trust exists with respect to a debt created by a deposit made pursuant to an agreement of parties does not mean that the bank takes the funds deposited as trustee and is charged with the duty of keeping them separate from its other funds and investing them as trust funds intrusted to its keeping. Complainant confuses a trust with respect to the debt evidenced by a deposit account with a trust in funds held by a bank as trustee, which is an entirely different matter. A general deposit in a bank creates merely a debt oh the part of the bank. The funds thus deposited become the property of the bank; and it is under no obligation to the depositor to preserve them, to invest them, or to keep them separate from its other funds. Funds which are the subject of a trust may be thus deposited in a bank under a general deposit; and the obligation of the bank to repay the deposit may thus become the subject of the trust just as a bond, promissory note, or other obligation. But it is well settled that the bank does not become charged with the duties of a trustee merely because it accepts on deposit funds which are subject to a trust. 3 R. C. L. 518; 7 C. J. 633; notes in 37 A. L. R. 120 and 53 A. L. R. 564. It becomes charged with such duties when it accepts funds, not as a general deposit creating the relationship of debtor and creditor, but under an agreement to handle and account for them in a fiduciary capacity, as in Strauss v. U. S. F. & G. Co. (C. C. A. 4th) 63 F.(2d) 174, or under circumstances giving rise to a constructive trust, as in Tucker v. Newcomb (C. C. A. 4th) 67 F.(2d) 177.
What we have here is nothing more than a series of general deposits made with the bank as a depository pursuant to agreement of the parties to whom the funds belonged and under an agreement that the bank should remit at regular intervals to the party entitled. The fact that the bank was paid nothing for services as trustee but, on the contrary, paid interest on the deposits made with it, shows that the parties thoroughly understood that it was to use the funds deposited as its own, assuming the position of debtor as in the ease of other general deposits, and was not to be charged as a trustee with the duty of segregating and investing the funds. Swan v. Children’s Home Society of West Virginia (C. C. A. 4th) 67 F.(2d) 84; Davis Trust Co. v. Smith (C. C. A. 4th) 226 F. 410; Scammon v. Kimball, 92 U. S. 362, 370, 23 L. Ed. 483. And this is not affected by the fact that it was charged with the duty of dividing the deposit made by the hardwood company between the trust company and the timber corporation, as it is perfectly clear that an ordinary general deposit of the funds held for remittance to the trust company was contemplated and not a segregation or investment of funds for its benefit. Swan v. Children’s Home Society, supra, 67 F.(2d) at page 87. The case is like that presented in Commercial Bank v. Armstrong (Armstrong v. Commercial Bank), 148 U. S. 50, 13 S. Ct. 533, 535, 37 L. Ed. 363, where it was held that no trust arose with respect to collections made by one bank for another under an agreement that remittance for such collections was to be made at stated intervals. The court said:
“The agreement was to collect at par, and remit the 1st, 11th, and 21st of each month. Collections intermediate those dates were, by the custom of banks, and the evident understanding of the parties, to be mingled with the general funds of the Fidelity, and used in its business. The fact that the intervals between the dates for remitting were brief is immaterial. The principle is the same as if the Fidelity was to remit only onee every six months. It was the contemplation of the parties, and must be so adjudged according to the ordinary custom of banking, that these collections were not to be placed on special deposit and held until the day for remitting. The very fact that collections were to be made at par shows that the compensation for the trouble and expense of collection was understood to be the temporary deposit of the funds thus collected, and the temporary use thereof by the Fidelity.”
Another decision by the Supreme Court very mueh in point is Marine Bank v. Fulton Bank, 2 Wall. 252, 256, 17 L. Ed. 785, where the Marine Bank made collections for the Fulton Bank and was advised by the latter to hold the avails subject to order and advise the amount collected. Afterwards the Marine Bank attempted to make payment in the currency which it had received on the collection, then largely depreciated, but its right to do this was denied, the court saying:
“All deposits made with bankers may be divided into two classes, namely, those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter; and that other kind of deposit of money peculiar to banking business, in which the depositor, for his own convenience, parts with the title to his money, and loans it to the bankers; and the latter, in consideration of .the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand. The case before us is not of the former class. It must be of the latter.”
There is some conflict among the state decisions as to whether a deposit made in a bank for a special purpose creates a trust fund in the hands of the bank. But it is well settled in the federal courts that, if the deposit is made as a general deposit, -the fact that it is made for the purpose of providing a credit which is to be used thereafter for a special purpose does not give it the status of a trust fund in the hands of the bank. Thus, in Blakey v. Brinson, 286 U. S. 254, 52 S. Ct. 516, 76 L. Ed. 1089, 82 A. L. R. 1288, it was held that a deposit made for the purpose of providing a credit against which bonds to be purchased by the bank for the depositor were to be charged, did not give rise to a trust in favor of the depositor. In Manhattan Co. v. Blake, 148 U. S. 412, 425, 13 S. Ct. 640, 644, 37 L. Ed. 504, a deposit by a state with a bank which acted as-agent in paying interest on its obligations-was held not to establish a trust but a deposit account subject to the tax on bank deposits. In Kershaw v. Kimble (C. C. A. 10th) 65 F.(2d) 553, a deposit in a savings account to be charged with purchases of securities to be made by the bank was held not to create-a trust. ' And the same conclusion was reached in Keyes v. Paducah & I. R. Co. (C. C. A. 6th) 61 F.(2d) 611, 86 A. L. R. 203, where there was a deposit of funds in a bank pending the final determination of a lawsuit; in Great Atlantic & Pacific Tea Co. v. Citizens’ Nat. Bank (C. C. A. 3d) 66 F.(2d) 883, where deposits were made with a bank which was t'o make daily transmission to another bank of accumulated deposits; in Pitts v. Pease (C. C. A. 5th) 39 F.(2d) 14, where deposits Were made for the purpose of paying-certain notes; in Northern Sugar Corporation v. Thompson (C. C. A. 8th) 13 F.(2d) 829, where deposits were made to meet a. pay roll; in Davis Trust Co. v. Smith, supra (C. C. A. 4th) 226 F. 410, where funds were deposited in a bank under an agreement that interest on the deposit was to be paid to certain children during their minority and that the principal sum was to be paid to them on their coming of age; and in the recent case of Swan v. Children’s Home Society of West Virginia, supra, 67 F.(2d) 84, where a deposit was made in a hank at interest, pursuant to the terms of a will and an order of a probate court, with direction that the interest on the deposit be paid to a society for the care of orphan children. The holding of the South Carolina courts is to the same effect. See Fant v. Home Bank & Trust Co., 152 S. C. 140, 149 S. E. 599.
In Manhattan Co. v. Blake, supra, the Supreme Court used language which is very appropriate here. In that case the bank agreed to act as agent of the state in paying from the deposits made with it interest on certain state obligations. The court said: “The plaintiff occupied two relations to the state, one that of debtor as a bank for the money deposited with it by the state, and the other that of agent of the state to pay out from the money deposited, if it remained on deposit, money for certain specified purposes.” Here the bank was the debtor of the timber corporation for the amount of the deposits made with it under the contract and was the agent of that corporation to make payment to the trust company of the amounts due it under the provisions of the deed of trust and charge such payments to the deposit account. The fact that the funds credited to the “Sales Agreement Account” were subject to the order of the trust company and not of the timber corporation does not, of course, change the situation. Even if there had been provision that they were not to be withdrawn except in the semiannual remittances, this would have had no effect other than give them the status of time deposits. The controlling factor is that there is nothing in the contract, in the deed of trust, or in the dealings of the parties which shows .that it was ever contemplated that the deposits were to be set apart as trust funds and handled and invested as such. On the contrary, the intention is clear that, the deposit was to be a general deposit; and, if the bank had segregated and invested the funds, a tender of the securities in which they had been invested would not have been a compliance with the duty to make semiannual remittances. If it had sustained losses as a result of such investments, any attempt to deduct such losses from the remittances would have been properly resisted under the holding of the Supreme Court in Marine Bank v. Fulton Bank, supra..
Nor do we think that the timber corporation’s position is helped by the South Carolina statute upon which it relies, the Act of March 28, 1930 (36 St. at Large S. C. p. 1367). That statute requires banks acting in a fiduciary capacity to segregate trust funds from their general assets and invest tnem, and provides that funds held awaiting investment or distribution shall be secured to the trust department of the bank by bond acceptable for the securing of public funds under the law of the state. It applies only to eases where banks accept funds to invest or manage in a fiduciary capacity, and has no application whatever to a general deposit which creates a mere indebtedness on the part of the bank.
Because of the importance of the question involved, we have gone somewhat fully into the question as to the existence of a trust; but, even if the bank were held a trustee of the fund covered by the deposits, complainant has not established any right to subject to the trust any of the assets which came into the hands of the receivers. As heretofore stated, the deposits in question were made by crediting to the “Sales Agreement Account” checks drawn by the hardwood company against its general account in the bank. This resulted in a mere shifting of credits and added nothing to the bank’s assets. There was consequently no augmentation of assets upon which a trust in favor of complainant could be predicated. Swan v. Children’s Home Society of West Virginia, supra; Lifsey, Receiver of Planters’ & Merchants’ First National Bank of South Boston, Va., v. Goodyear Tire & Rubber Co. (C. C. A. 4th) 67 F.(2d) 82; Ellerbe v. Studebaker Corporation of America (C. C. A. 4th) 21 F.(2d) 993, 995; Larabee Mills v. First Nat. Bank (C. C. A. 8th) 13 F.(2d) 330; American Can Co. v. Williams (C. C. A. 2d) 178 F. 420; Mechanics & Metals Nat. Bank v. Buchanan (C. C. A. 8th) 12 F.(2d) 891. And see note in 82 A. L. R. at pages 95 and 101, and cases there cited.
For the reasons stated, the decree appealed from was correct and same will accordingly be affirmed.
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
POCONO RUBBER CLOTH CO. v. J. A. LIVINGSTON, Inc. J. A. LIVINGSTON, Inc., v. POCONO RUBBER CLOTH CO.
Nos. 5515, 5529.
Circuit Court of Appeals, Third Circuit.
Aug. 30, 1935.
William F. Hall, of Washington, D. C., and Charles F. Dane, of New York City, for Pocono Rubber Cloth Co.
Abraham Shamos and Milton E. Mermelstein, both of New York City, for J. A. Livingston, Inc.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge.
This was a suit by J. A. Livingston, Inc., hereinafter called plaintiff, against the Pocono Rubber Cloth Company, for infringement of its trade-mark, “Suavelle.” The learned trial judge found that the plaintiff’s trade-mark was valid and infringed, but limited its scope and operation to “clothing” of women and children and permitted the defendant to use its trade-mark on merchandise other than on “articles of women’s or children’s clothing, bearing the trade-mark ‘Swavel’ either alone or in combination with other words or symbols.” The plaintiff appealed from the decree because of this limitation, and the defendant appealed because the plaintiff's trade-mark was held to be valid and infringed by it.
Early in 1930 plaintiff began to use a fine, pure, satin-face silk fabric which was made for it exclusively, to which it gave the name “Suavelle.” It was used for women’s and children’s dresses and “sports wear.” On May 24, 1930, it applied to the United States Patent Office for registration of the name as a trademark and it was granted and registered on March 24, 1931.
Notwithstanding that plaintiff itself does not advertise its business, though some of its customers among the leading shops and stores of New York, Philadelphia, Boston, San Francisco, Los Angeles, Miami, and elsewhere, do advertise_ it, plaintiff’s sales in “Suavelle” dresses by June, 1933, exceeded $250,000.
The defendant, which is a New Jersey corporation, began around April, 1930, to manufacture and sell a “suede-like material” to which in January, 1931, it gave the name of “Swavel.” This was about a year after the plaintiff had begun to use the word “Suavelle” and eight months after it had applied for registration of the name as its trade-mark. On January 17, 1931, the defendant applied for the registration of the name “Swavel” as its trade-mark. This application was first made under Class 42, “Knitted, netted and textile fabrics,” the same class under which the plaintiff had first applied and under which its mark had been published in July, 1930. The defendant’s application was later, by amendment, changed to Class 50, for “merchandise not otherwise classified,” and registration in that class was granted May 26, 1931, two months after the registration of the plaintiff’s trade-mark.
The defendant manufactures the cloth which it calls “Swavel” and sells it to others who make it into various articles, such as bridge-table covers, carryalls, raincoats, shoes, and women’s outfits including coats and jackets. It furnished to its customers labels which were sewed upon the articles, including women’s garments, made from the defendant’s cloth.
The defendant advertised its product as suitable for women’s and misses’ coats and jackets. It advertises in the trade journal which features the plaintiff’s product, and one of the advertisements appeared on the reverse side of the page of “Women’s Wear” which carried pictures of the plaintiff’s dresses. The defendant’s coats and jackets are sold by the same parties and in the same stores as are women’s dresses and move “in the same channel of trade” as does plaintiff’s product.
Defendant says that the use of the word “Suavelle” does not establish trademark rights and the trade-mark is not valid for the reason that it was never used as a trade-mark for sports garments marketed by the plaintiff.
There is testimony, however, which is clear and positive, to the contrary. Miss Brennan testified that the dresses made of the material in question came with the tag of the manufacturer on them, but they removed that tag from the dresses and put on them the tag of the department store or stores for which she was working and wrote on the back of the tag the word “Suavelle.” The dresses so tagged were not only sold from the stores in New York but also from those in South Hampton, Magnolia, Palm Beach, and elsewhere.
The defendant further says that substantially the same word as “Suavelle,” or similar words, were used on the same or similar goods as trade-marks by others at the date the plaintiff entered the field, and the trade-mark is invalid for that reason. The words to which it refers are “crepe suval,” “cavel,” “syvel,” “chamovelle,” “chervel,” and “shelvel.”
We do not think that the word “Suavelle” so nearly resembles any of these words or trade-marks as to be likely to cause confusion or mistake in the mind of the public or to deceive the purchasers.
Congress provided in the Act of February 20, 1905, § 5 (15 USCA § 85): “That trade-marks which are identical with a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trademark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers shall not be registered.”
As to the descriptive properties of the materials of plaintiff and defendant the learned trial judge said: “Both litigated commodities are materials for women’s garments. Both are used for the fabrication of such garments. Both are, therefore, sold first to fabricators of women’s garments, and ultimately to the consumer who wears such garments. Both present a surface having a gloss. That is the inherent and typical quality of silk. The sheen of defendant’s suede is artificial.” 8 F. Supp. 249, 250.
The evidence justifies the conclusion that the materials of the plaintiff and defendant are, within the definition of our case of Rosenberg Brothers & Co. v. Elliott, 7 F.(2d) 962, 966, “of the same descriptive properties.” True there may be some difference in the materials, but after mentioning this the trial court said: “This, difference is servient to and will be obscured in the mind of the average purchaser by their joint character as women’s garments with a glossy or silk like finish.”
The defendant suggests that its trademark should be pronounced “Swa-vel,” with the accent on the first syllable, giving the “a” a long sound to distinguish it from the. plaintiff’s trade-mark “Suavelle,” which has the accent on the second syllable.
The selection of the word “Swavel” by the defendant following so closely upon the selection of the word “Suavelle” by the plaintiff would hardly seem a mere coincidence. A fair interpretation of the evidence rather indicates that the word was chosen by design. ' It is absolutely impossible for the defendant to control the pronunciation which the trade would give to the word. It is apparent that the word so nearly resembles in sound, appearance, and spelling the plaintiff’s trade-mark that it will necessarily cause confusion or mistake in the public mind and will deceive purchasers who will think they are buying merchandise produced by the plaintiff, when as a fact they are purchasing defendant’s merchandise.
Infringement of the plaintiff’s trademark by the defendant is evident. Consequently the defendant is enjoined from using the word “Swavel” not only on articles of women’s and children’s clothing but from using it on any of its products.
The decree of the District Court as thus modified is affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_adminrev
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J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MASTER SLACK AND/OR MASTER TROUSERS CORP., Hardeman Garment Corp., Morehouse Garment Corp., Lauderdale Garment Corp., and Lobel-ville Garment Corp., Respondents.
No. 84-5387.
United States Court of Appeals, Sixth Circuit.
Argued April 4, 1985.
Decided Sept. 17, 1985.
Elliott Moore, W. Christian Schumann, Michael David Fox, Deputy Associate Gen. Counsel, N.L.R.B., National Labor Relations Board, Margaret Bezou, argued, Washington, D.C., for petitioner.
Thomas J. Hughes, Jr. (argued), Jackson, Lewis, Schnitzler & Krupman, Ann Bach-man Hale, Atlanta, Ga., for respondents.
Before KEITH and KRUPANSKY, Circuit Judges, and COHN, District Judge.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
COHN, District Judge.
The National Labor Relations Board (the Board) petitions to enforce a supplemental back pay order directing respondents to make whole 28 discriminatees who were wrongfully discharged by Hardeman Garment Corp. (Hardeman), a subsidiary of Master Slack and/or Master Trousers Corp. Respondents challenge the Board order only as it relates to 11 discrimina-tees, and do not dispute the back pay awards ordered for the other 17. Their primary contention is that the Board erred in holding that certain findings made in the underlying unfair labor practices proceeding precluded respondents from contending in the back pay proceeding that a plant shutdown should cut off the back pay awards. Respondents also contend the Board’s back pay awards to two discrimina-tees are not supported by substantial evidence.
For the reasons stated below, we enforce the order only in part.
I. HISTORY
On July 20, 1973, the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the Union), won an election among Hardeman’s production and maintenance employees at a plant located in Bolivar, Tennessee. The Union was certified by the Board on January 4, 1974.
Hardeman opposed the Union’s certification and continued to operate on the whole as if the Union didn’t exist. The Union filed several unfair labor practice charges from 1973 through 1974 over various company practices. The charges were consolidated and a single hearing was held before administrative law judge Thomas A. Ricci. As relevant here Judge Ricci found that Hardeman had violated Section 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(3), in terminating the night shift at the Bolivar plant, which resulted in the lay off of 20 workers, 3 days before the union election.
The Board, after exceptions were filed by both sides to Judge Ricci’s order, affirmed this ruling and determined that Hardeman had also violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), in laying off 8 more employees due to stricter enforcement of absenteeism and tardiness rules after the Union won the election. The Board further found Hardeman had violated Sections 8(a)(1) and (5) in failing to notify and bargain with the Union prior to the layoff of all employees (about 400) when the Bolivar plant was shut down in the fall of 1974 and also in failing to notify and bargain with the Union when the plant was reopened in 1975 and 80 employees were recalled. This court enforced the Board’s order. See NLRB v. Master Slack, 618 F.2d 6 (6th Cir.1980).
Judge Ricci, in discussing the appropriate remedy in the unfair labor practices proceeding, found that back pay awards in many cases should continue past the plant shutdown in 1974, even though he had earlier stated, “[tjhere is no contention by the General Counsel that the 1974 closing was occasioned by anything other than purely economic factors.” In their orders neither Judge Ricci nor the Board stated that back pay awards should run for any particular period; the orders merely stated that wrongfully discharged employees should be made whole “for any loss of pay or any benefits they may have suffered by reason of Respondent's discrimination against all of them.” Respondents did not object to Judge Ricci’s specific findings made about the length of the back pay periods in either their exceptions to the Board or in the enforcement proceeding before this court.
When the parties were unable to agree on compliance a supplemental hearing was held on June 23 and 24, 1981 before administrative law judge Philip P. McLeod. Judge McLeod rejected the company’s argument that the plant shutdown in 1974 should cut off back pay awards for all discriminatees. He concluded the doctrine of res judicata barred respondents from relitigating that issue since Judge Ricci had found that back pay awards in several instances continued past the shutdown. He further concluded that since respondents had acted unlawfully in shutting down and reopening the plant by failing to bargain with the Union the back pay awards should continue past that point.
In this proceeding for enforcement of the Board’s back pay order respondents contend Judge Ricci’s findings should not preclude relitigation on the effect of the plant shutdown on back pay awards. Respondents also contend there is not substantial evidence in the record to support the back pay awards to Willie Spencer and Margie Wilson.
II. ISSUE PRECLUSION
We must first determine whether Judge Ricci’s general finding that many back pay periods were to continue past the point of the plant shutdown precluded relitigation in the back pay proceeding on the effect of the plant shutdown on back pay awards. Generally, a factual finding which was necessary to support the judgment in a prior proceeding will bar relitigation on that issue in a subsequent proceeding involving the same parties. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 and n. 5, 99 S.Ct. 645, 649 and n. 5, 58 L.Ed.2d 552 (1979); Marlene Industries Corp. v. National Labor Relations Board, 712 F.2d 1011, 1015-16 (6th Cir.1983); United States v. Stauffer Chemical Co., 684 F.2d 1174, 1180 (6th Cir.1982), aff'd 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984). The policies underlying this rule include the preservation of judicial resources and the protection of litigants. Montana, supra, 440 U.S. at 153-54, 99 S.Ct. at 973-74. The findings of agencies made in the course of proceedings which are judicial in nature should be given the same preclusive effect as findings made by a court. United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966).
Issue preclusion should only be applied where the identical issue sought to be relitigated was actually determined and necessarily decided in a prior proceeding in which the litigant against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. See Montana, supra, 440 U.S. at 153, 99 S.Ct. at 973; Parklane Hosiery, supra, at 326 n. 5; Marlene Industries, supra, at 1015-16. A factual issue is “necessarily decided” if its determination was necessary to support the judgment entered in the prior proceeding. See 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4421, p. 192; Marlene Industries, supra, at 1015-16.
While the effect of the 1974 shutdown and 1975 reopening of the plant was actually litigated in the underlying unfair labor practices proceeding it was not necessary to the Board’s order. Accordingly Judge Ricci’s findings cannot preclude relitigation on that issue in the supplemental backpay proceeding.
“ Tt is basic to the law of [issue preclusion] that a finding in one proceeding cannot bind tribunals in subsequent cases unless the finding acted as a basis for final judgment in the first.’ ‘The determination of an issue in an earlier proceeding must be essential to the judgment; it cannot be dicta.’ ” (citations omitted)
Marlene Industries, supra, at 1015-16. See also Block v. Bourbon County Commissioners, 99 U.S. (4 Otto) 686, 693, 25 L.Ed. 491 (1878); Segal v. American Telephone & Telegraph Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.1979); Evans v. Wilkerson, 605 F.2d 369, 372 (7th Cir.1979).
Judge Ricci’s finding that back pay periods should continue past the point of the plant shutdown was not essential to either his order or the Board’s order; it was mere dicta. The Board’s order, like Judge Ric-ci’s order, simply states that respondents “shall ... [m]ake all ... [wrongfully discharged] employees whole for any loss of pay or any other benefits they may have suffered by reason of the respondent’s discrimination against all of them.” This is typical of orders in unfair labor practices proceedings where the Board simply determines if unfair labor practices have occurred and what remedies would effectuate the purposes of the Act. See NLRB v. Deena Artware, Inc., 361 U.S. 398, 411, 80 S.Ct. 441, 447, 4 L.Ed.2d 400 (1960) (Frankfurter, J., concurring); 29 C.F.R. § 102.45. The exact amount of back pay owing is not stated and is left to be determined in a subsequent back pay proceeding if the parties cannot resolve the amounts owing informally. See Deena Artware, supra; 29 C.F.R. § 102.52. Drawing an analogy from court cases, the unfair labor practices proceeding determines liability; a subsequent back pay proceeding, if necessary, determines damages.
The only factual determinations necessarily decided to enter an order that discharged employees be made whole are (1) that the respondent violated the Act in discharging employees, and, (2) that back pay is an appropriate remedy. See Section 10(c) of the Act, 29 U.S.C. § 160(c). It is not necessary to determine the exact amount of back pay owing nor whether subsequent events would have resulted in layoffs of discharged employees totally apart from the wrongful conduct.
“[Questions relating to the exact amount of back pay owing (including whether ... at some reasonably determinable date employment with [the company] would not have been available because [company] operations would have ceased for independent, nondiscriminatory reasons) are prematurely raised in [an] enforcement petition. Those issues may be explored in a compliance proceeding.”
Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 255-56 (9th Cir.1978). See also, NLRB v. Dazzo Products, Inc., 358 F.2d 136, 138 (2nd Cir.1966).
In sum, Judge Ricci’s finding that back pay awards should continue past the point of the 1974 plant shutdown was not necessary to support his order or the Board’s order and therefore his finding does not bar relitigation on that issue. To the contrary, the determination of whether the shutdown should cut off back pay awards belonged in the back pay proceeding.
III. SECTION 8(a)(5) VIOLATIONS
This does not settle the matter since Judge McLeod did not solely rely on the doctrine of issue preclusion in ruling that the plant shutdown would not terminate back pay awards. He alternatively ruled against respondents because Hardeman violated § 8(a)(5) in failing to bargain with the Union when the plant was shut down in 1974 and reopened in 1975. He reasoned:
“Respondent’s argument [that the plant shutdown should terminate all backpay awards] overlooks the fact that the Board, with Circuit Court agreement, found the method in which Respondent effected both the layoff and recall to be unlawful in violation of Section 8(a)(5) of the Act. In order to find merit to this asserted defense of Respondent, one would have to invoke a presumption that if Respondent had acted lawfully and fulfilled its obligation to bargain with the Union in good faith, the exact same result would have occurred as did occur. Since it is impossible to determine what would have occurred if Respondent had fulfilled its lawful obligation to bargain with the Union, Respondent’s unlawful conduct could not serve to terminate backpay.”
Judge McLeod’s ruling, however, does not have factual support in the record and the remedy of back pay past the plant shutdown goes beyond the scope of proper remedies under the Act.
Section 10(c) of the Act, 29 U.S.C. § 160(c), charges the Board with “taking such affirmative action including reinstatement of an employée with or without back pay as will effectuate the policies of [the Act].” The Board’s discretion to fashion appropriate remedies for violations of the Act is quite broad and its choice of remedies should be set aside only if “it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969) (citation omitted).
Back pay awards are intended to “mak[e] employees whole for losses suffered on account of an unfair labor practice.” Id. (citation omitted). The purpose is to “restor[e] the economic status quo that would have obtained but for the company’s wrongful [act].” Id. It is improper, however, to award back pay if an employer can show that even if employees had been treated with total fairness they would have been discharged at a later date. See NLRB v. J.S. Alberici Construction Co., Inc., 591 F.2d 463, 470 n. 8 (8th Cir.1979); NLRB v. Amoco Chemicals Corp., 529 F.2d 427 (5th Cir.1976).
The Board ordered that backpay awards of employees discharged in 1973 continue past the shutdown of the Hardeman plant in the fall of 1974 solely because Hardeman failed to bargain with the Union over the effects of the shutdown and subsequent reopening of the plant. There was no finding, and no evidence, that the shutdown of the plant was motivated by any anti-union animus in violation of § 8(a)(3).
Backpay can be an appropriate remedy for a § 8(a)(5) violation. See Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F.2d 254 (8th Cir.1970); Avila Group, Inc., 218 NLRB 633, 89 LRRM 1364 (1975); see also The Developing Labor Law, pp. 1676-1678 (Morris ed. 2d ed. 1985). It is a proper remedy where it serves to make whole employees for losses suffered due to an employer’s failure to bargain, and also where it creates an incentive for the employer to bargain in good faith with the union representing the employees. See Avila Group, supra. The backpay award in a failure to bargain case runs from the date of termination only until the parties reach agreement or a good faith impasse in bargaining, see The Developing Labor Law, supra, at 1677, and in any event is cut off if the union fails to request bargaining. Morrison Cafeterias, supra, at 254.
In this case the decision that back-pay awards for employees who had been wrongfully discharged over a year before the plant shutdown continue past the shutdown does not appear to serve any proper remedial purpose under the Act. All employees suffered equally due to Hardeman’s failure to bargain with the Union. The 11 employees listed in footnote 3 have no right under the Act, absent special facts, to preferential treatment over other employees. Seven of the 11 had been recalled to work before the plant shutdown. Backpay awards dating from the time each employee was wrongfully terminated until they were recalled or until the plant shutdown fully reestablishes the status quo and puts those individuals on an equal economic footing with all other plant employees. Any backpay awarded to remedy Hardeman’s failure to bargain, if appropriate at all, should be awarded equally to all employees affected by the plant shutdown, since all were equally injured by Harde-man’s failure to bargain, and not just to the 11 employees listed in footnote 3. The backpay awards for these 11 employees, insofar as they extend past the plant shutdown, appear to be punitive rather than remedial.
The Board’s order, awarding backpay past the plant shutdown only to certain employees, can be enforced only if there is evidence in the record to support the distinction made between employees who had been illegally terminated at an earlier date and all other employees. This requires a finding that had Hardeman bargained in good faith over the effects of the plant shutdown and the subsequent reopening the 11 employees listed in footnote 3 would have been given preferential hiring rights over all other employees.
Had Hardeman bargained in good faith with the Union several things could have happened. Hardeman and the Union could have reached an agreement to keep the plant totally or partially opened. However, even after bargaining in good faith, Harde-man could still have elected to shut down the plant for purely economic reasons. Hardeman was not required to bargain over the actual decision to shut down the plant but only over the effect of that decision on its employees. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981); NLRB v. Gibraltar Industries, Inc., 653 F.2d 1091 (6th Cir.1981). On the sparse record before us it is wholly speculative to state what would have happened had Hardeman bargained with the Union concerning the effects of the shutdown and reopening of its plant. It stretches credulity to suggest that the Union, charged with representing all plant employees, would have insisted that the 11 discriminatees listed in footnote 3 be given preferential hiring, disregarding their length of service in relation to other employees.
Backpay awards to the 11 employees listed in footnote 3 which extend past the plant shutdowns do not further any policy under the Act and will not be enforced.
IV. WILLIE SPENCER AND MARGIE WILSON
Respondents specifically challenge the Board's award of back pay to two discrimi-natees as not supported by substantial evidence in the record. Respondents argue Willie Spencer never looked for replacement work after being discharged from Hardeman and is therefore not entitled to back pay. Respondents also contend Margie Wilson failed to engage in a diligent search for interim employment after the second quarter of 1974.
When an employee is discharged due to anti-union animus there is a presumption that some back pay is owing. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2nd Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). The respondent has the burden of proving that a back pay award should be reduced due to a willful failure to seek interim employment. McCann Steel v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir.1978). This court recently summarized the law concerning the failure of discharged employees to mitigate damages in NLRB v. The Westin Hotel, 758 F.2d 1126 (6th Cir.1985):
“[A] wrongfully discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the plaintiff be successful in mitigating the damage.
Finally, it must be remembered that the Board’s conclusion as to whether an employer’s asserted defenses against liability have been successfully established will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board’s findings.”
Id. at 1130 (citations omitted).
A. Willie Spencer
Willie Spencer already had a day job when he was laid off by Hardeman. He did not look for other work until he was laid off from his day job. Respondents contend this demonstrates Spencer’s night job at Hardeman was only “supplemental”. Judge McLeod found that it was impossible to determine which job was “primary” and which “supplemental”, and that it was just as plausible to assume that had Spencer lost his day job he would have been content to work at only his night job at Hardeman. Judge McLeod’s determination is reasonable on the record before us; there is therefore substantial evidence to support the Board’s decision that Spencer was entitled to back pay, with the computation being tolled during the period he worked at his day job. After he was laid off from his day job, Spencer diligently looked for other employment. The Board’s order for back pay to Spencer is enforced, with the limitation set forth in Section III of this opinion.
B. Margie Wilson
Margie Wilson’s testimony was that she consistently applied for jobs from 1973 through 1980. Respondents contend her testimony showed that when she was employed during that period her efforts at working were half-hearted and that as a consequence she made herself unemployable.
Wilson explained the reasons she left each job where she was employed from 1973 through 1980. Judge McLeod credited her testimony, even though he found her answers were often “vague and indefinite.” He noted Wilson is rural and uneducated and that the vagueness in her testimony was probably caused by these factors coupled with the difficulty of remembering events spreading over 8 years prior to the hearing. There is substantial evidence in the record to support the Board’s order of back pay to Wilson; she made a “reasonable effort to mitigate damages.” Westin Hotel, supra, at 1130.
V. SUMMARY
The Board’s order of back pay for the 17 discriminatees listed in footnote 4 is enforced in full. Respondents do not challenge those awards. The Board order of back pay for the 11 discriminatees listed in footnote 3 is only enforced through the mid-third quarter of 1974, when the Harde-man plant shut down. Any backpay award to the employees listed in footnote 3 beyond that quarter is denied enforcement.
. These individuals are called discriminatees because their discharge was motivated by an anti-union discriminatory animus.
. Apart from Master Slack the other named respondents are all, like Hardeman, wholly owned subsidiaries of Master Slack. Master Slack and the other subsidiaries were joined as defendants solely for purposes of the back pay awards. See NLRB v. Master Stack, 618 F.2d 6 (6th Cir.1980).
. Earlie Cheairs, Ray Davis, Alma Jones, Nathaniel McClellan, Gladys McGowan, Doris McNeal, Wiley Murphy, Lurlene Pirtle, Willie Spencer, Ressie Ford Traylor, and Margie Wilson. Of these, Cheairs, Traylor, Pirtle, McNeal, McClellan, Jones, and Davis were rehired at various points in time from August, 1973 through May, 1974. However, they all lost their jobs when the Hardeman plant was shut down in the fall of 1974 and none of them were rehired when the plant reopened in 1975.
. Grace Beard, Mose Burkley, Peggy Peoples Harris, Freddie Jones, Mattie Jones, Earline Lake, Leroy Lake, Annie McKinnie, Percy McNeal, Donald Moss, Vera Norment, Juanita Phillips, Allan Lynn Russell, Johnny Russell, Leo Sain, Ernest Williams, and Patricia Williams.
. Willie Spencer and Margie Wilson, 2 of the 11 discriminatees listed in footnote 3, supra.
. This section states that it shall be an unfair labor practice for an employer to "discrimi-nat[e] in regard to hire or tenure of employment of any term or condition of employment to encourage or discourage membership in any labor organization.”
. Sec. 8(a)(1) states that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights [to organize and participate in labor organizations]”.
. In Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984), the United States Supreme Court discussed the confusing variance in terminology surrounding the concept of preclusion:
“The preclusive effects of former adjudications are discussed in varying and, at times, seemingly conflicting terminology____ These effects are referred to by most commentators as the doctrine of ‘res judicata’. Res judicata is often analyzed further to consist of two preclusion concepts: 'issue preclusion’ and ‘claim preclusion’. Issue preclusion refers to the effect of a judgment in foreclosing relit-igation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit____
This Court on more than one occasion has used the term 'res judicata’ in a narrow sense, so as to exclude issue preclusion or collateral estoppel. When using that formulation, ‘res judicata’ becomes virtually synonymous with ‘claim preclusion’. In order to avoid confusion resulting from the two uses of ‘res judica-ta’, this opinion utilizes the term ‘claim preclusion' to refer to the preclusive effect of a judgment in foreclosing relitigation of matters that should have been raised in an earlier suit.”
In this case the parties and the Board all referred generally to the doctrine of “res judica-ta” even though the problem here is one of issue preclusion rather than claim preclusion. For the sake of clarity this court will follow the lead of the Supreme Court. Accordingly, the term "issue preclusion” will be used throughout this opinion in discussing whether respondent is foreclosed from relitigating issues decided in the prior unfair labor practices proceeding.
. Had the Board found that anti-union animus in violation of § 8(a)(3) had been the cause of the plant shutdown it could have awarded back-pay extending past the plant shutdown not only to employees illegally discharged prior to the shutdown but to all the employees at the plant. See NLRB v. National Car Rental System, Inc., 672 F.2d 1182, 1191 (3d Cir.1982); Electrical Products Division of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir.1980), cert. den. 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980).
. The record does not contain the date when Spencer was laid off from his day job.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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songer_casetyp1_1-2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Plaintiff-Appellant, v. Adela MORALES-ZAMORA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Javier OZUNA-FUENTES and Jose Manuel Morales-Diaz, Defendants-Appellees.
Nos. 89-2172, 89-2244.
United States Court of Appeals, Tenth Circuit.
Sept. 6, 1990.
David N. Williams (William L. Lutz, U.S. Atty., and Robert J. Gorence, Asst. U.S. Atty., with him on the brief), Asst. U.S. Atty., for plaintiff-appellant, U.S.
Nancy Hollander of Freedman, Boyd & Daniels, P.A., Albuquerque, N.M., for defendant-appellee Adela Morales-Zamora.
William E. Parnall, Albuquerque, N.M., for defendants-appellees Javier Ozuna-Fuentes and Jose Manuel Morales-Diaz.
Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellee Javier Ozuna-Fuentes.
Before TACHA and EBEL, Circuit Judges, and DUMBAULD, District Judge.
The Honorable Edward Dumbauld, District Judge, United States District Court for the Western District of Pennsylvania, sitting by designation.
TACHA, Circuit Judge.
Defendants Adela Morales-Zamora, Javier Ozuna-Fuentes, and Jose Manuel Morales-Diaz were indicted on drug charges after a trained narcotics detection dog alerted to their vehicles while they were detained at a roadblock operated by Socorro, New Mexico police authorities. The district court in both cases granted the defendants’ motions to suppress on the ground that the dog sniff was a “search” under the fourth amendment, U.S. Const, amend. IV, requiring a reasonable and ar-ticulable suspicion of drug-related criminal activity. We reverse.
I.
The factual circumstances of the two searches at issue are similar. On February 10, 1989, Adela Morales-Zamora (Zamora) and her seven-year-old son were traveling north on Interstate 25 when she was stopped at a roadblock operated by the Socorro, New Mexico police department. The stated purpose of the roadblock was to check drivers’ licenses, vehicle registrations, and proofs of insurance. Zamora produced her driver’s license, registration, and proof of insurance as requested. While one officer was checking her documents, another officer walked a trained narcotics-detection dog around the exterior of Zamora’s car. The dog did not touch the car. Before the document check was finished, the dog alerted to the car. A subsequent search of the car revealed 126 pounds of marijuana hidden in luggage in the car’s trunk.
On March 16, 1989, Javier Ozuna-Fuentes (Fuentes) was driving a van north on Interstate 25. His sole passenger was Jose Manuel Morales-Diaz (Diaz). Fuentes and Diaz encountered the same kind of Socorro police department roadblock as did Zamora. While they were waiting in line at the roadblock and before a check of their documents had been made, a narcotics-detection dog alerted to the van. The dog did not touch the van. After Fuentes stepped out of the van, an officer frisked him and found a .25 caliber handgun in the front right pocket of his pants. A subsequent search of the van revealed 30 pounds of marijuana concealed in a false compartment under the van’s chassis.
Zamora later moved to suppress the evidence of contraband seized at the roadblock. After a hearing on March 31, 1989, the district court granted Zamora’s motion to suppress, holding that when an officer has no reasonable and articulable suspicion of drug-related criminal activity, a canine sniff that occurs while the driver’s documents are being examined violates the fourth amendment. See United States v. Morales, 714 F.Supp. 1146, 1154 (D.N.M.1989).
Fuentes and Diaz also filed a motion to suppress. In a ruling from the bench, the district court in the Fuentes/Diaz case granted the defendants’ motion to suppress for substantially the reasons expressed in the published opinion in the Zamora case. The government took an interlocutory appeal of the two district court rulings pursuant to 18 U.S.C. section 3731, which we consolidated on appeal.
II.
Our standard of review is well-established. When reviewing a grant of a motion to suppress, we accept the trial court’s findings of fact unless clearly erroneous. See United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990). The ultimate determination of reasonableness under the fourth amendment is, however, a conclusion of law that we review de novo. Id.
A.
As a preliminary matter, we turn to the defendants’ argument that their detention by the Socorro police at the roadblock was an unlawful seizure because the roadblock’s stated purpose was a pretext for searching the stopped vehicles for drugs. Both district courts below did not address the defendants’ arguments that the alleged purpose of the roadblocks was pretextual, ruling instead that even if the reason for the roadblock was not pretextual, the dog sniffs constituted illegal searches under the fourth amendment. Because the district courts below assumed that the alleged purpose of the roadblock—to check for valid drivers’ licenses, vehicle registrations, and proofs of insurance—was valid, we do also. Our holding today does not preclude the defendants from renewing their arguments concerning pretext to the district courts.
B.
The Supreme Court has upheld the constitutionality of brief roadblock detentions not based on an individualized reasonable suspicion of criminal activity in the context of a twenty-five second average detention at a sobriety checkpoint, see Michigan Dep’t of State Police v. Sitz, — U.S. -, 110 S.Ct. 2481, 2483-88, 110 L.Ed.2d 412 (U.S.1990), and a 3-5 minute average detention at an immigration checkpoint, see United States v. Martinez-Fuerte, 428 U.S. 543, 546-47, 562, 96 S.Ct. 3074, 3077-78, 3085, 49 L.Ed.2d 1116 (1976). This circuit previously has dismissed fourth amendment challenges against brief roadblock detentions not based on individualized reasonable suspicion of criminal activity where the purpose of the roadblock is to check for valid drivers’ licenses, vehicle registrations, and proofs of insurance. See United States v. Corral, 823 F.2d 1389, 1392 (10th Cir.1987) (driver’s license, car registration, and proof of insurance check), cert. denied, 486 U.S. 1054, 108 S.Ct. 2820, 100 L.Ed.2d 921 (1988); United States v. Lopez, 777 F.2d 543, 547 (10th Cir.1985) (driver’s license and car registration check); United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984) (driver’s license and car registration check); United States v. Prichard, 645 F.2d 854, 856-57 (10th Cir.) (driver’s license and car registration check), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981). Assuming that the initial stop of the defendants was for the valid purpose of checking drivers’ licenses, vehicle registrations, and proofs of insurance, we hold that the defendants’ initial detention at the roadblock was not an unreasonable seizure under the fourth amendment.
To determine whether the defendants’ vehicles were unlawfully detained after a lawful initial stop for the purpose of facilitating the canine sniff, we look to the timing of the events at the roadblock. In both cases the narcotics-detehtion dog alerted to the defendants’ vehicles before the Socorro police officer had completed his inspection of the defendants’ documents. Because the defendants’ vehicles were not detained beyond the measure of time required for the officer to complete his examination of the defendants’ documents, the purpose for which we assume the defendants were lawfully detained, we hold that there was not a “seizure” of the defendants’ vehicles for purposes of facilitating the canine sniff.
C.
We now turn to the question raised by this appeal that we expressly reserved in United States v. Stone, 866 F.2d 359, 363 n. 2 (10th Cir.1989), namely, whether the police must have a reasonable suspicion of drug-related criminal activity before employing a narcotics-detection dog to sniff a vehicle already lawfully detained by the police. We hold that the dog sniff, under these circumstances, is not a “search” within the meaning of the fourth amendment and therefore an individualized reasonable suspicion of drug-related criminal activity is not required when the dog sniff is employed during a lawful seizure of the vehicle. Accord United States v. Colyer, 878 F.2d 469, 477 (D.C.Cir.1989) (dog sniff in train aisle outside private compartment); United States v. Beale, 736 F.2d 1289, 1292 (9th Cir.) (en banc) (dog sniff of checked luggage at airport), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); United States v. Goldstein, 635 F.2d 356, 361-62 (5th Cir.1981) (dog sniff of luggage in the possession of airline), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981).
United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), is the leading Supreme Court case on canine sniffs as “searches.” In Place, law enforcement officers at an airport seized the defendant’s luggage to subject the bags to a “sniff test” by a narcotics-detection dog based on a reasonable suspicion that the luggage contained narcotics. The Court held that the canine sniff was not a "search” within the meaning of the fourth amendment:
A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.
Id. at 707.
The defendants argue, and the district courts below agreed, that Place requires an individualized reasonable suspicion of drug-related criminal activity before the police may subject a vehicle lawfully detained at a roadblock to a canine sniff. In reaching this conclusion, the district court found Place distinguishable on the ground that in Place the brief detention of the luggage necessary to subject it to the canine sniff was lawful because the seizure was based on a reasonable, articulable suspicion that a drug-related crime was being committed, whereas the seizure of Zamora’s car at the roadblock was lawful for reasons wholly unrelated to suspected drug-related activity. Morales, 714 F.Supp. at 1150.
We disagree with the district court’s reading of Place. Place analyzed whether a canine sniff was a “search” independently from the question of whether the detention of the luggage based on reasonable suspicion was justifiable under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It was only after the Court found that a canine sniff was not a search, that the Court turned its attention to whether the 90-minute seizure of the luggage based on reasonable suspicion of drug-related activity satisfied Terry. The drug-related nature of the officer’s reasonable suspicion was simply not a factor in the Court’s determination that a canine sniff was not a search. See Place, 462 U.S. at 707, 103 S.Ct. at 2644; United States v. Scales, 903 F.2d 765, 768 (10th Cir.1990) CPlace held that subjecting luggage to a canine sniff is not a “search” because both the manner of obtaining information and the information obtained are limited).
Moreover, in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Court broadly construed Place in holding that a police investigatory tool is not a “search” if it merely reveals the presence or absence of contraband because the privacy interest in possessing contraband is not one that society recognizes as reasonable.
We must first determine whether [a cocaine field test] can be considered a “search” subject to the Fourth Amendment — did it infringe an expectation of privacy that society is prepared to consider reasonable?
The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities....
A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy.... [E]ven if the [test] results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in “privately” possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably “private” fact, compromises no legitimate privacy interest.
This conclusion is dictated by United States v. Place in which the Court held that subjecting luggage to a “sniff test” by a trained narcotics detection dog was not a “search” within the meaning of the Fourth Amendment....
Here, as in Place, the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment.
Id. 466 U.S. at 122-24, 104 S.Ct. at 1661-62 (footnotes and citations omitted).
Together, Jacobsen and Place make clear that there is no intrusion on legitimate privacy interests (and hence no “search”) where the only information revealed is limited to contraband items. See Colyer, 878 F.2d at 474 (Place and Jacobsen stand for the proposition that a possessor of contraband can maintain no legitimate expectation that its presence will not be revealed); see also Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (second prong of inquiry defining a fourth amendment “search” under United States v. Katz, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), is whether the individual’s expectation of privacy is one that society is prepared to recognize as “reasonable”).
We find the factual circumstances of the two searches at issue to be legally indistinguishable from the facts of Place. The canine sniffs were made of the exterior of the defendants’ vehicles and did not invade their homes or bodily integrity. The vehicles were detained lawfully in a public area, and the sniff took place in that public area. As in Place, the sniffs did not subject the defendants to any embarassment or inconvenience. Finally, the sniffs did not inconvenience the defendants in any manner. In each case the dog alerted to the vehicle before the officer’s inspection of the driver’s license, vehicle registration, and proof of insurance had been completed; therefore, the defendants did not experience any additional delay to facilitate the canine sniff.
Nevertheless, the defendants argue that they had a legitimate expectation of privacy in the odor of narcotics detected by the dog because this odor emanated from inside their vehicles, a private area protected by the fourth amendment. Consequently, the defendants contend, the dog sniff was akin to an unlawful sniff of their persons, see Horton v. Goose Creek Indep. School Dist., 690 F.2d 470 (5th Cir.1982) (pre-Place decision holding that large dogs physically touching students with their noses is an unreasonable search), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983), or their private residence, see United States v. Thomas, 757 F.2d 1359 (2d Cir.) (dog sniff of exterior of an apartment building is an illegal search), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 67, 88 L.Ed.2d 54 (1985).
We reject defendants’ argument for two reasons. First, we are unpersuaded by defendants’ analogies because there is a lesser expectation of privacy in a vehicle than in a home or one’s bodily integrity. Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. at 3084. Second, we find that when the odor of narcotics escapes from the interior of a vehicle, society does not recognize a reasonable privacy interest in the public airspace containing the incriminating odor. See Goldstein, 635 F.2d at 361 (reasonable expectation of privacy does not extend to airspace around luggage).
In holding that police officers do not need an individualized reasonable suspicion of drug-related criminal activity before subjecting a vehicle lawfully detained to a dog sniff, we are cognizant of the concern that “[t]o so hold would give officers the right to subject vehicular traffic stopped at red lights to canine sniffs so long as the sniff was completed before the light changed.” Morales, 714 F.Supp. at 1150; see also Jacobsen, 466 U.S. at 138, 104 S.Ct. at 1669 (Brennan, J., dissenting) (under majority’s reading of Jacobsen and Place, “law enforcement officers could release a trained cocaine-sensitive dog ... to roam the streets at random, alerting the officers to people carrying cocaine”). This type of canine confrontation is not before us, however, and we reserve the question of the constitutionality of such hypothetical situations for another day.
D.
The district court in the Fuentes-Diaz case also suppressed the evidence against Fuentes because he found that Fuentes had not voluntarily consented to the search of the van. The other district court judge suppressed the evidence against Zamora for the same reason. Morales, 714 F.Supp. at 1154. We need not reach the issue of consent because probable cause to search was supplied when the dog alerted to the vehicles. Under the “vehicle exception” to the general rule that searches are reasonable only if conducted pursuant to a valid search warrant, see United States v. Panitz, 907 F.2d 1267, 1271 (1st Cir.1990); United States v. Swingler, 758 F.2d 477, 489-90 (10th Cir.1985), no warrant was necessary in this case for the search of the vehicles to be reasonable under the fourth amendment.
III.
The order granting the defendants’ motions to suppress is REVERSED.
. The district court in Morales found that it did not have to decide whether Zamora's initial stop was pretextual. Morales, 714 F.Supp. at 1148 n. 2. In the Fuentes-Diaz case the district court judge rendered his personal opinion that "had I been required to address that issue, I [would] conclude that [the alleged purpose of the roadblock] was pretextual,” but went on to state that the issue was not properly before him. Rec. vol. Ill p. 94.
. We find irrelevant the testimony of the private investigator who at both suppression hearings related that when she encountered a similar roadblock operated by the Socorro police on a different date, she was detained approximately two minutes after the officer completed his inspection so that the dog could sniff her car. We are concerned in this case only with the legality of the police conduct regarding Zamora, Fuentes, and Diaz.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
|
songer_const1
|
101
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Appellee, v. Ronald Douglas PATILLO, Appellant.
No. 13948.
United States Court of Appeals, Fourth Circuit.
Argued April 6, 1970.
Decided Aug. 20, 1970.
Albert V. Bryan, Circuit Judge, dissented and filed opinion.
Victor J. Ashe, Norfolk, Va. [Court-appointed] (S. W. Tucker, Seymour Du-bow, and Hill, Tucker & Marsh, Richmond, Va., on brief) for appellant.
Roger T. Williams, Asst. U. S. Atty. (Brien P. Gettings, U. S. Atty., on brief) for appellee.
Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.
CRAVEN, Circuit Judge:
Ronald Douglas Patillo was convicted on two counts of threatening the life of the President of the United States in violation of 18 U.S.C. Section 871 and was sentenced to terms totaling four years. He appeals, and we reverse and remand for a new trial.
I.
The district judge, without a jury, found that Patillo made unlawful threats against President Nixon on two occasions while on duty as a security guard at the Norfolk Naval Shipyard. On the night of May 16, 1969, Patillo and another guard, Herbert N. Cherry, with whom he was only casually acquainted, were riding in a patrol car. Without preamble or explanation, Patillo stated to Cherry: “I’m going to kill President Nixon, and I’m going to Washington to do it.” Neither conversant made further reference that night to the subject of Patillo’s statement. Cherry reported the incident to his supervisor who in turn informed the Secret Service.
On May 22, 1969, a Secret Service agent was secreted in the trunk of a patrol car to be operated by Patillo and Cherry. While on patrol, with the Secret Service agent listening, Cherry engaged Patillo in conversation about the current rioting and about the President’s nomination of a new Chief Justice of the Supreme Court. Patillo said that the rioting was bad, but did not reply to Cherry’s inquiries about the Supreme Court. Cherry then asked Patillo if he thought “Mr. Nixon was doing a good job.” Pa-tillo said, “I will take care of him personally.” Cherry asked how Patillo intended to accomplish that. Patillo did not directly respond, but stated that “he would gladly give up his life doing it * * Patillo further declared, in response to another question from Cherry, that getting close to the President would present no problem because “he (Patillo) did not need to get close to him (the President) to do it * * At that point the conversation terminated.
The trial court fully credited Cherry’s testimony and that of the Secret Service agent. Patillo testified that he had no recollection of the May 16 conversation. He contended that he had nothing against President Nixon, that he didn’t vote, that he was not concerned about politics and that he did not make the statement attributed to him by Cherry. As to the May 22 incident, Patillo testified that he remembered a discussion about the riots but that he had not mentioned or referred to President Nixon.
II.
The Supreme Court recently interpreted, for the first time, the statute under which Patillo was convicted. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). In a per curiam opinion, the Court held that 18 U.S.C. Section 871(a) is constitut-tional on its face.
The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H. R. Rep. No. 652, 64th Cong., 1st Session (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech. 394 U.S. at 707, 89 S.Ct. at 1401.
In deciding Watts, the Court recognized two major elements in the offense created by Congress in 18 U.S.C. Section 871(a). The first is that there be proved “a true ‘threat’ ”, 394 U.S. at 708, 89 S.Ct. 1399 and the second is that the threat be made “knowingly and willfully”, 18 U.S.C. Section 871(a).
The proof in this case clearly meets the first requirement. Patillo’s statements can be viewed only as true threats. He does not assert that his statements were political hyperbole or mere jest. Compare, Watts v. United States, supra, and Alexander v. United States, 418 F.2d 1203 (D.C. Cir. 1969). Instead, his defense was a general denial. His testimony that he was not concerned with politics and that he never voted was offered to make plausible his assertion that he did not utter the words —not to mitigate or explain away their apparent meaning. Within the Watts requirement that the defendant’s statement be examined in its full context, Alexander v. United States, 418 F.2d 1203 (D.C. Cir. 1969), it is clear that Patillo’s flat statement without provocation, that he was “going to kill President Nixon ■x- * * ” was a true threat.
Unlike the May 16 threat, the statements of May 22 were uttered in a context of political discussion. However, it was a very brief discussion. Cherry’s first mention of President Nixon triggered the bald statement: “I [Patillo] will take care of him personally.” In view of Patillo’s admitted lack of concern with politics and with regard to the full context of his statements, the inference drawn by the district judge that the May 22 statement was also a true threat cannot be held erroneous.
III.
We agree with the district judge that the statements made by Patillo were true threats. We must next determine whether the trier of fact properly found that those threats were uttered with the degree of willfulness sufficient for conviction under Section 871(a).
Although recognizing the “willfulness” requirement of Section 871(a), the Watts decision does not resolve a long term controversy over whether “willfulness” means “that a defendant must have intended to carry out his ‘threat’.” 394 U.S. at 707, 89 S.Ct. at 1401. “Some early cases,” the Court observed, “found the willfulness requirement met if the speaker voluntarily uttered the charged words with an apparent determination to carry them into execution. Ragansky v. United States, 253 F. 643, 645 (CA 7th Cir. 1918) (emphasis supplied) ; cf. Pierce v. United States, 365 F.2d 292 (CA 10th Cir. 1966). * * * Perhaps [the Ragansky] interpretation is correct, although we have grave doubts about it. See the dissenting opinion below, [Watts v. United States] 131 U.S.App.D.C. 125, 402 F.2d 676, at 686-693 (Wright, J.)” Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969).
Whatever the motivation for the enactment of Section 871(a), see Watts v. United States, 394 U.S. 705, 709, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (Douglas, J., concurring), it is valid as a safety measure to protect the President and to allow him to perform his duties without interference from threats of physical violence. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Watts v. United States, 131 U.S.App.D.C. 125, 402 F.2d 676, 679 (1968) (Wright, J., dissenting) ; both citing H.R.Rep. No. 652, 64th Cong., 1st Session (1916). The statute must be strictly construed, as are all criminal statutes, to accomplish no more than this purpose. Chief Justice Marshall best stated this rule of construction in United States v. Wiltber-ger, 5 Wheat. 76, 5 L.Ed. 37 (1820):
The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself * * * The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest.
5 Wheat, at 95-96, 5 L.Ed. 37, quoted in Yates v. United States, 354 U.S. 298, 304, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). We think that many of the courts that construed Section 871(a) prior to Watts departed “from the plain meaning of words * * * in search of an intention which the words themselves did not suggest,” with pernicious results. For example, one court held that “[t]he vital inquiry under the act is whether the threat is of such a nature as to create or tend to create sedition or disloyalty.” United States v. Stobo, 251 F. 689 (D.Del.1918). In United States v. Stickrath, 242 F.151 (S.D .Ohio 1917), the first case construing Section 871(a), the court held that the words “knowingly and willfully” in the statute “are intended to signify that the defendant, at the time of making the threat charged him, must have known what he was doing, and, with such knowledge, proceeded in violation of law to make it. They are used in contradistinction to ‘ignorantly’ and ‘unintentionally’.” Id. at 154. The interpretation of “knowingly and willfully” alluded to by the Supreme Court in Watts was first stated in Ragansky v. United States, 253 F. 643, 645 (7th Cir. 1918):
A threat is knowingly made, if the maker of it comprehends the meaning of the words uttered by him. * * * And a threat is willfully made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution.
This language in Ragansky was part and parcel of a holding, now discredited by Watts, that a statement made in jest falls within the ambit of Section 871(a).
The Ragansky interpretation of “willfully and knowingly” is not in keeping with the meaning traditionally accorded to those words when found in criminal statutes. “The word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose. * * *” United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933). Ragansky’s version of the willfulness requirement demands only an “apparent determination,” expressed by the words themselves, to perpetrate the act threatened. We believe that a “bad purpose” assumes even more than its usual importance in a criminal prosecution based upon the bare utterance of words. Americans, nurtured upon the concept of free speech, are not accustomed to controlling their tongues to avoid criminal indictment.
This case does not involve the communication, or attempted communication, by a defendant of his threat to the President. Accordingly, we do not here consider what intent requirement may be effective to accomplish an insulation of the President from threats of violence to his person and also be in accordance with the wording of Section 871(a). We hold that where, as in Patillo’s case, a true threat against the person of the President is uttered without communication to the President intended, the threat can form a basis for conviction under the terms of Section 871(a) only if made with a present intention to do injury to the President. Such intent may take the form of a bad purpose to personally do harm to the President or to incite some other person to do the injury. This is the most reasonable construction of the statute’s plain language viewed in light of Congress’ manifest purpose to protect “the safety of [the] Chief Executive.” 394 U.S. at 707, 89 S.Ct. 1399. There is no danger to the President’s safety from one who utters a threat and has no intent to actually do what he threatens. While threatening remarks made without intent to later carry them out and without intent to incite others may, nevertheless, incite others, Congress has precluded the application of the statute to such remarks by requiring willfulness by him who threatens. Without so deciding, we note that an exception, under the normal definition of willfulness, may occur where inflammatory statements are made in a “full context” evidencing on the part of the speaker a reckless disregard for the strong likelihood that his listeners would be incited to do harm to the President.
The district court, quite understandably, applied the time honored Ragansky willfulness requirement, which we today reject, to Patillo’s case. The court articulated that rule as follows:
The question of intent really is not the issue or a bad purpose is not necessary to constitute a violation of the law when the threat is made, and when the section refers to “knowingly and willfully” it means that it is knowingly made if the maker comprehends the meaning of the words which are uttered by him and is willfully made if, in addition to comprehending the meaning of the words, the maker voluntarily and intentionally utters them as a declaration of an apparent determination to carry them into execution.
Because Patillo was thus tried in accordance with legal principles that we have found to be erroneous, his convictions under 18 U.S.C. Section 871 must be reversed and his case remanded for a new trial.
Reversed and remanded.
. 18 U.S.C. Section 871. Threats against President and successors to the Presidency. (a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of the President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
. Patillo was sentenced to two consecutive two year terms under the provisions of 18 U.S.C. Section 4208(a) (1964).
. The Supreme Court’s flat statement upholding the statute’s facial constitutionality unquestionably forecloses these arguments urged upon us by the appellant: (1) The constitution forbids punishment of pure speech as treason or otherwise, and (2) The statute is unconstitutionally vague.
. Cases decided by the lower federal courts prior to the Supreme Court’s Watts decision had placed an extremely broad interpretation upon the “threat” requirement of 18 U.S.C. § 871(a). Neither conditional language, United States v. Jasick, 252 F. 931 (E.D.Mich.1918), nor jest, Pierce v. United States, 365 F.2d 292 (10th Cir. 1966), nor political hyperbole, Rothering v. United States, 384 F.2d 385 (10th Cir. 1967) escaped inclusion in the pre-Watts definition. Indeed, most of the early cases indicate a preoccupation with the supposed disloyal nature of the utterances punishable under the statute. E. g., United States v. Stobo, 251 F. 689 (D.Del.1918); United States v. Stickrath, 242 F. 151 (S.D.Ohio 1917). See, generally, Comment, Threatening the President: Protected Dissenter or Potential Assassin, 57 Geo. L.J. 553 (1969) and Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (Douglas, J., concurring).
. The appellant contends that his statements on May 16 and those on May 22 should not be considered together for purposes of establishing their nature or the intent with which they were made. We reject this contention. It is familiar learning that similar offenses, close in time, may be viewed together to establish intent and knowledge. McCormick, Evidence Section 157. Furthermore, one statement constituting a threat to the President may be, as here, part of “the full context” in which was made another statement also alleged to constitute an unlawful threat. Such statements, though made at different times, must perforce be considered together. See Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Alexander v. United Statesf, 418 F.2d 1203 (D.C.Cir. 1969).
. For early interpretations of the willfulness requirement contra the Ragansky rule, see United States v. Metzdorf, 252 F. 933 (D.Mont.1918), and United States v. French, 243 F. 785 (S.D.FIa.1917).
. As noted by Wright, J., dissenting' in Watts v. United States, 402 F.2d 676, 687 (D.C.Cir. 1968), this was the view stated by a Congressman who sponsored the bill codified as 18 U.S.C. § 871. Referring to the intent requirement, Congressman Webb said: “ * * * I think he ought to be shown to have done it willfully. I think it must be a willful intent to do serious injury to the President. If you make it a mere technical offense, you do not give him much of a chance when he comes to answer before a court and jury. I do not think we ought to be too anxious to convict a man who does a thing thoughtlessly. I think it ought to be a willful expression of an intent to carry out a threat against the Executive, and I hope that the gentleman will not offer his amendment [to delete the willfulness requirement].” 53 Cong. Rec. 9378 (1916).
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_post_trl
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Appellant, v. 78.40 ACRES OF LAND, MORE OR LESS, Situate IN McKEAN COUNTY, STATE OF PENNSYLVANIA, and Laurence J. Hazzard et al.
No. 16474.
United States Court of Appeals Third Circuit.
Argued Oct. 5, 1967.
Decided Oct. 24, 1967.
Edmund B. Clark, Dept, of Justice, Land and Natural Resources Division, Appellate Section, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Lawrence G. Zurawsky, Asst. U. S. Atty., Pittsburgh, Pa., Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., on the brief), for appellant.
John F. Potter, MacDonald, Illig, Jones & Britton, Erie, Pa. (William F. Illig, Erie, Pa., on the brief), for appellees.
Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
In this condemnation case the Government seeks on appeal to convict the trial judge of error in instructing the jury, as he did, that it might infer from the Government’s failure to call as a valuation witness one of its employees, who had made an initial valuation of the land taken, that his testimony, if produced, would have been detrimental to the Government’s position. It appears, however, that at the conclusion of the charge, in answer to a direct inquiry by the trial judge, counsel for the Government stated that he had no suggestions or corrections as to the charge. Under these circumstances, the Government is precluded from attacking in this court the portion of the trial judge’s charge referred to. Arnold v. Loose, 3 Cir. 1965, 352 F.2d 959, 963-964. We, therefore, do not reach and do not consider the question which the Government seeks to raise as to the right of a claimant to comment to the jury on the Government’s failure to call as a valuation witness an employee who had made the initial valuation upon which was based the estimate of just compensation for the land taken which is required by 40 U.S.C.A. § 258a(5).
The judgment of the district court will be affirmed.
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_const2
|
114
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Charles McCORKLE, Plaintiff-Appellant, v. W.E. JOHNSON, Warden, Joseph Kolb, Chaplain, Freddie V. Smith, Commissioner, Defendants-Appellees.
No. 88-7478
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Aug. 24, 1989.
P. David Bjurberg, David Christy, and Beth Jackson Hughes, Asst. Attys. Gen., Montgomery, Ala., for defendants-appel-lees.
Before VANCE, JOHNSON and CLARK, Circuit Judges.
PER CURIAM:
The judgment of the district court is AFFIRMED on the basis of the memorandum opinion entered by the district court on July 13, 1988. (Attached hereto as Appendix.)
APPENDIX
In The United States District Court For The Southern District of Alabama Southern Division Charles McCorkle, Plaintiff, vs. W.E. Johnson, et al., Defendants.
Civ. A. No. 84-0918-C
MEMORANDUM OPINION
This action was referred to the Magistrate for submission of recommendations pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate submitted recommendations, and timely objections to those recommendations were filed by the plaintiff. In accordance with 28 U.S.C. § 636(b)(1)(C), the court has made a de novo determination of those portions of the Magistrate’s recommendations to which objections were made.
Charles McCorkle, a state prisoner confined in the Holman facility, filed this complaint pursuant to 42 U.S.C. § 1983 seeking redress for the deprivation of his First Amendment right to freely exercise his chosen religion. The defendants are prison officials who allegedly impinged on the plaintiff’s practice of the Satanic “religion” by denying plaintiff’s request for access to certain Satanic books and articles, including The Satanic Bible, The Satanic Book of Rituals, and a Satanic medallion. Their defense is three-fold: (1) Satanism is not a religion entitled to First Amendment protection; (2) assuming it is a religion, the plaintiff is not a sincere believer in Satanism; and (3) access to the requested books and medallion would pose a threat to the security of the prison. The Magistrate held that all three defenses were valid and recommended that judgment be entered in favor of the defendants.
The threshold questions of whether Satanism is a religion and, if it is, whether plaintiff is a sincere believer need not be decided since it is clear that, even if these questions are answered affirmatively, the challenged prison policy does not violate the Free Exercise Clause of the First Amendment as it is applied to the States through the Fourteenth Amendment. When it is alleged that a prison policy impinges on an inmate’s constitutional rights, the policy is valid “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Giving the deference that is due to the officials charged with prison administration, see Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977), the court finds that the policy at issue in the present case successfully withstands this scrutiny; it is not an exaggerated response to the situation.
There are several factors which are relevant in determining the reasonableness of this policy. First, there must be a “valid, rational connection” between the prison restriction and the legitimate governmental interest put forward to justify it. Turner, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). The restriction at issue here clearly meets this standard. The prohibition on Satanic materials such as those requested by the plaintiff is justified by the defendants’ concern for institutional security and order. It is an informed and measured response to the violence inherent in Satan worship, and to the potential disorder that it might cause within the prison.
Testimony at the evidentiary hearing turned gruesome when the plaintiff recounted two of the rituals espoused by The Satanic Book of Rituals. The fertility ritual includes the sacrifice of a female virgin, preferably a Christian. Also explained in this book, according to the plaintiff, is the initiation ritual. Wrist-slashing, blood-drinking, and the consumption of human flesh — usually fingers — are some of the gory highlights of this ceremony. The plaintiff quipped that hopefully the person whose flesh is eaten is alive at the end of the ritual.
Candles, a common item in many religious ceremonies, are also used in the Satanic rituals. However, the candles preferred by the plaintiff and other Satanists are not made of wax or paraffin; instead, they are made from the fat of unbaptized infants.
An inmate witness subpoenaed by the plaintiff testified that he has observed the plaintiff performing certain Satanic rituals within Holman Prison on several occasions. According to this testimony, the plaintiff, as part of these rituals, drew his own blood by slicing his wrist or using a needle, and burned paper. Mr. McCorkle has also asked other inmates for their blood. Approximately three years ago, one inmate got highly irritated when the plaintiff requested that he donate a vial of blood for use in the worship of Satan.
The teachings of The Satanic Bible, which the plaintiff claims to wholeheartedly believe, and desires to study, also present a significant threat to security and order within the prison. W.E. Johnson, Warden of Holman Prison, testified that upon review of The Satanic Bible, he concluded that persons following its teachings would murder, rape or rob at will without regard for the moral or legal consequences. Moreover, Warden Johnson thought that the plaintiff’s safety would be threatened if other inmates became aware of the contents of The Satanic Bible. Accordingly, he denied plaintiff’s requests.
Testimony from proclaimed Satanists, and an independent review of the book, confirms Warden Johnson’s conclusions about the beliefs of Satanists. A “master counselor” of a Satanic sect testified that the premise underlying all of the teachings in The Satanic Bible is that life should be lived according to individual desires without regard for conscience or consequences. Certain portions of the book are somewhat harsher. For instance, in the chapter entitled “The Book of Satan,” author Anton Szandor LaVey states that right and wrong have been inverted too long. He challenges readers to rebel against the laws of man and God. Furthermore, LaVey declares that hatred of ones enemies is of utmost importance; revenge should be a top priority.
Clearly, practices such as those described above, and the beliefs that encourage them, cannot be tolerated in a prison environment since they pose security threats and are directly contrary to the goals of the institution. Allowing the plaintiff access to the requested books and medallion would only encourage such behavior. Thus, it cannot be said that the policy in question is arbitrary; rather, it is logically connected to the governmental interests asserted.
A second factor relevant in determining the reasonableness of a prison restriction is that alternative means of exercising the asserted right remain open. Turner, 107 S.Ct. at 2262. The inquiry here is whether, under the restrictions imposed, the plaintiff is deprived of all means of practicing his “religion.” See O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 2406, 96 L.Ed.2d 282 (1987). Testimony at trial revealed that the plaintiff and other members of the various Satanic sects in Holman Prison are practicing Satanists despite the deprivation of the books and medallion requested by the plaintiff. Moreover, plaintiff indicated that he wears a duplicate medallion and has memorized portions of both The Satanic Bible and The Satanic Book of Rituals. Clearly, the restrictions about which plaintiff complains have not foreclosed all avenues of his worship of Satan.
A third consideration in the reasonableness inquiry is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. Turner, 107 S.Ct. at 2262. Warden Johnson justifiably believes that books and memorabilia that teach hatred for one’s fellow man and disrespect for laws and legal order, and that encourage and explain the practice of violent acts such as flesh-eating and blood-letting, pose substantial threats to prison security and order, and are contrary to the rehabilitative goals of the institution. Consequently, the plaintiff’s asserted right to freely worship Satan can be exercised only at significant costs to guards, other prisoners, and society in general. Where such a trade-off is necessary, the choice made by prison officials should not be lightly set aside by the court since such judgments are peculiarly within their province. See Turner, 107 S.Ct. at 2263, (citing Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974)).
Finally, the presence of workable alternatives is evidence of the unreasonableness of the restrictions imposed. Turner, 107 S.Ct. at 2262. Plaintiff, however, has not offered any alternatives that would fully accomodate his asserted rights at a de min-imis cost to the valid penological interests that gave rise to the imposed restrictions.
The restrictions challenged by the plaintiff are reasonably related to valid penological interests. Accordingly, the court refuses to substitute its judgment on difficult matters of prison administration for the determinations of those charged with the formidable task of running a prison. See O’Lone, 107 S.Ct. at 2407. The court will by separate document enter final judgment dismissing the plaintiff’s complaint on the merits.
DONE this 13 day of July, 1988.
Emmett R. Cox
UNITED STATES CIRCUIT JUDGE SITTING BY DESIGNATION
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_usc1
|
15
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
GOODYEAR TIRE & RUBBER CO. v. ROBERTSON, Commissioner of Patents.
Circuit Court of Appeals, Fourth Circuit.
April 10, 1928.
No. 2659.
Trade-marks and trade-names and unfair competition —Device consisting of diamond-shaped projections to be impressed on tread of automobile tires, held not registerable (Trade-Mark Act 1905, § 5 [15 USCA § 85]).
Under Trade-Mark Aet 1905, § 5 (15 USCA §85) providing that “no mark, which consists merely in * * * devices which are descriptive of the goods with which they are used, * * * shall be registered,” a device which consists of a series of diamond-shaped projections or blocks designed to be used or impressed on the tread of automobile tires, and which is a mechanically functional feature of the tire, is not registerable.
Appeal from the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge.
Suit , in equity by the Goodyear Tire & Rubber Company against Thomas E. Robertson, Commissioner of Patents. Decree for defendant, and complainant appeals.
Affirmed.
For opinion below, see 18 F.(2d) 639.
Archibald Cox, of New York City (R. S. Trogner, of Akron, Ohio, William Pepper Constable, of Baltimore, Md., and William G. Henderson, of Washington, D. C., on the brief), for appellant.
T. A. Hostetler, Sol. U. S. Patent Office, of Washington, D. C. (J. F. Mothershead, of Washington, D. C., on the brief), for appellee.
Before WADDILL and PARKER, Circuit Judges, and WEBB, District Judge.
WADDILL, Circuit Judge.
A hill in equity was filed in this cause in the United States District Court for the District of Maryland to require the Commissioner of Patents of the United States to register a trade-mark under the Trade-Mark Act in accordance with an application theretofore filed by the complainant in the Patent Office on July 27, 1921. The bill was filed pursuant to the provisions of section 9 of the Trade-Mark Act of February 20, 1905 (33 Stat. 727 [15 USCA § 89] ; Rev. St. § 4915, U. S. Comp. St. 1916, § 9460 [35 USCA § 63]), and the action taken was in accordance with the ruling of the Supreme Court of the United States in American Steel Foundries v. Robertson, 262 U. S. 209, 43 S. Ct. 541, 67 L. Ed. 953.
The application thus filed in the Patent Office set forth and alleged that the trademark sought to be registered was designed for use upon vehicle tires composed of rubber or rubber and fabric, the same being described as follows:
“The distinctive and distinguishing features of the trade-mark comprise a series of circumferentially disposed, outstanding blocks or elements, approximately diamond-shaped, and spaced by a series of grooves or lines which intersect each other at right angles, the blocks or elements being aligned on parallel cross-planes.
“The trade-mark is impressed or otherwise formed in the tread surface of the goods, or. by printing it on the cover, container, or wrapper of the goods, or by attaching to the goods or to the wrapping thereof a tag or label hearing the mark.”
The Patent Office rejected the application and denied the registration of the mark on the ground that the design was a part of the tire itself, and intended to prevent skidding of the tire, and that, while probably the tread of the tire had become so well known as to indicate the product of the applicant, this was immaterial, since there was no evidence to show that the design was originally adopted solely for trade-mark purposes. Prom this ruling of the Commissioner an appeal was taken to‘ the Court of Appeals of the District of Columbia (55 App. D. C. 400, 4 F. [2d] 1013), and that court affirmed the action of the Patent Office, saying in a memorandum opinion:
“The diamond-shaped projections, which appellant claims as a trade-mark, are clearly descriptive of the goods on which they are used, since they form a very essential part of the goods itself. In other words, these projections are molded on the face of a rubber tire, either to enhance the wear, or to prevent skidding, or both. Section 5 of the Trade-Mark Aet of 1905 [15 USCA § 85] among other things provides that ‘no mark, which consists merely in * * * devices which are descriptive of the goods with which they are used, * * * shall be registered.’ As suggested in brief of counsel for the Patent Office, ‘the most accurate way of describing an article is possibly by the article itself.’ ”
Notwithstanding these rulings, the complainant, in its hill filed in this cause pursuant to the provisions of the federal statutes aforesaid, insists that it is entitled to the relief prayed for, and urges that it is not seeking to register the article itself, that is, the tire, but only such portion thereof as is indicated by the petition, which is composed of a tread pattern of diamond-shaped rubber figures. It is apparent that the words use'd in the application actually describe the trademark sought to be registered, and that the same may be applied to anything without affording the slightest information as to its nature or quality. Section 5 of the TradeMark Act (33 Stat. p. 725, supra) contemplates that even the name of an individual may be a trade-mark, if written, printed, impressed, or woven in some particular or distinctive manner; and it has been decided that it is no objection to the validity of an otherwise good mark that it is impressed upon or inherent in the article manufactured, as in the ease of wat.er-marks upon paper, a word or symbol blown into a glass bottle or jar, or an arbitrary mark on the head of a horseshoe nail. Samson Cordage Works v. Puritan Cordage Mills (C. C. A.) 211 F. 603-605, L. R. A. 1915F, 1107, and cases cited therein.
A careful consideration of this ease demonstrates that complainant does not seek to register a certainly specified mark as an arbitrary symbol indicative, of origin of the product, apart from the tire itself, but a mark which, if not an essential, at least is an important, part thereof, that is to say, the outstanding diamond-shaped blocks disposed circumferentially upon the tire, so as to form the tread. In an attempt to register a trademark. applicable to automobile tires, the words “diamond-shaped tread” are manifestly descriptive of the goods. To adopt the diamond-shaped tread itself will not better convey the idea. The prohibition of section 5 of the Trade-Mark Act against the registration of descriptive words is unqualified, and does not authorize their registration, if adopted to indicate origin, or if publicly used for any particular period of time. No matter how long the use continues, the mark will never become a technical trade-mark. In this ease the appellant had long used its Goodyear tire. The diamohd tread, presenting a broken surface molded into rubber, does tend to prevent slipping and skidding; but that particular feature was not an essential element, since any rough or broken tread would have the same effect, and the size, shape, and arrangements of projections and impressions may vary within wide limits, without affecting their use or operation. Registration as a trade-mark under these circumstances would not cure its invalidity, because the inhibition against such registration is unqualified under section 5 of the Trade-Mark Act. Here we have an effort to register an alleged trademark, consisting of something which is a mechanically functional feature of an automobile tire, and not registerable at all, and is descriptive of the particular type of tire, the registration of which is expressly inhibited by the provisions of section 5.
Considering the question of the effect of the prohibition of section 5 against the registration of descriptive words, in Vacuum Oil Co. v. Climax Refining Co., 120 F. 254, 256, the Circuit Court of Appeals of the Sixth Circuit held such prohibition against registration of descriptive words to be absolute. Justice Lurton, speaking for the court, said that it does not authorize their registration, if adopted to indicate origin, or if publicly used for any particular period of time, and that, no matter how long the use continues, the mark will never become a technical trade-mark. At page 256 he said:
The “descriptive word or sign or symbol * * * may acquire a secondary significance denoting origin or ownership. * * * But this secondary significance is not protected as a- trade-mark, for a descriptive word is not the subject of a valid trade-mark; the only office of a trade-mark being to indicate origin or ownership. When a descriptive word * * * comes by adoption to have a secondary meaning, * * * its use in this secondary sense may be restrained, if it amounts to unfair competition. In such case, if the use of it by another be for the purpose of palming off the goods of one as and for the goods of another, a court of equity will interfere for the purpose of preventing such a fraud. But this kind of relief depends upon the facts of each case, and does not at all come under the rules applicable to the infringement of a trade-mark.” Vacuum Oil Co. v. Climax Refining Co. (C. C. A.) 120 F. 254, 256, supra.
To accept the doctrine contended for by the appellant would in effect enable one by means of registration of a trade-mark to secure a perpetual monopoly of something not patentable within itself. In re American Circular Loom Co., 28 App. D. C. 446; In re United States Tire Co., 44 App. D. C. 469; In re Barrett Co., 48 App. D. C. 586; Hood Rubber Co. v. Needham Tire Co., 48 App. D. C. 227; Putnam Nail Co. v. Dulaney, 140 Pa. 205, 21 A. 391, 11 L. R. A. 524, 23 Am. St. Rep. 228; Davis v. Davis (C. C.) 27 F. 490; Smith v. Krause (C. C.) 160 F. 270; Daniel v. Electric Hose & Rubber Co. (C. C. A.) 231 F. 827.
We have given careful consideration to the assignments of error presented by appellant, five in number, and the able arguments made in support of the assignments by counsel for appellant, as well as the authorities cited, and our conclusion is that the assignments are without merit, and that the arguments and authorities cited do not warrant us in arriving at a different result from that reached by the Commissioner of Patents, the Court of Appeals of the District of Columbia, and the court appealed from herein. Smithey v. Robertson, 299 F. 248, 250 (C. C. A. 4th Circuit); Hernandez v. Robertson, 16 F.(2d) 279 (C. C. A. 4th Circuit).
The decision of the District Court should therefore he affirmed.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
In re METZ.
(Circuit Court of Appeals, Second Circuit.
April 6, 1925.)
No. 280.
1. Bankruptcy <@=391(3) — Findings of state court of fraudulent conduct of bankrupt as officer of corporation in transferring funds, accepted by federal court.
Findings of state court, showing that debt arose from fraudulent conduct of bankrupt in transferring funds of corporation as officer within meaning of Bankruptcy Act, § 17 (Comp. St. § 9601), to his individual account, to render corporation insolvent, will be accepted by federal court on application to stay contempt proceedings.
2. Bankruptcy <S=426(2) ~ Judgment obtained against corporate officer misappropriating corporate property not dischargeable; “officer.”
Judgment obtained by judgment creditor of corporation against officer fraudulently misappropriating its money, for the purpose of making the corporation insolvent and unable to pay such judgment, was not a dischargeable debt, under Bankruptcy Act, § 17 (Comp. St. §-9601), excepting debts Created by fraud, embezzlement, misappropriation, or defalcation, while acting as an “officer,” as this includes officers of private corporations.
[Ed. Note. — For other definitions, see Words and Phrases, Officer.]
3. Bankruptcy <@=391 (3) — District Court should determine whether debt dischargeable before granting stay against contempt proceeding.
On application to the District Court for the Southern District of New York for stay under Bankruptcy Act, § 11 (Comp. St. § 9595), and Rev. St. U. S. § 720 (now Judicial Code, § 265 [Comp. St. § 1242]), restraining enforcement of contempt order of state court, under Judiciary Law N. Y. § 753, against one adjudged a bankrupt in the district of New Jersey, it was the court’s duty to determine whether debt wás dischargeable, and to inquire into nature of cause of action and the character of the judgment obtained, and with such knowledge to determine whether stay should be granted, and when debt w'as ^ot dischargeable it was improvident to grant stay on ground that question whether debt was dischargeable was one for the District Court of New Jersey to determine.
Petition to Revise Order of the District Court of the United States for the Southern District of New York.
In the matter of Gustave Metz, also known as Gus Hill, bankrupt. Petition of James J. Dealy to revise an order of the District Court for the Southern District of New York, which restrained the enforcement of a contempt order entered against the alleged bankrupt in the New York1 Supreme Court.
Order reversed.
Philip A. Walter, of New York City (David L. Podell, Herman Shulman, Jacob J. Podell, Mortimer Harp, and A. Kane Kaufman, all of New York City, of counsel), for petitioner.
M. Casewell Heine, of New York City (John A. Laird, of Newark, N. J., of counsel), opposed.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
MANTON, Circuit Judge.
On July 23, 1923, Dealy obtained a judgment in a tort action for personal injuries against a New York corporation known as Gus Hills, Inc. After affirmance, upon appeal to the Appellate Division of the Supreme Court of the state of New York, execution of judgment was returned unsatisfied. After examination, in supplementary proceedings to judgment, an action in equity was instituted against the alleged bankrupt for unlawful transfer and appropriation by him of the assets and property of the corporation known as Gus Hills, Inc. A judgment was entered for the plaintiff, which, upon the findings of fact, adjudicated that the bankrupt, wjfile an officer and director of the corporation, caused sums of money to be fraudulently transferred from the account of the corporation to himself, including the amount of the judgment in the tort action, and that this was done for the purpose of making the corporation insolvent and unable to pay its debt to the petitioner, and that in point of fact the corporation became insolvent by reason of such fraudulent transfer of funds. A receiver was appointed, and the bankrupt was directed to pay the amount of the judgment to such receiver. No appeal was taken from the interlocutory judgment thus entered, and the command of the decree was not complied with. After personal demand and refusal to pay over the money, a motion was made to adjudicate him in contempt of court for such refusal. This motion was granted on November 7,1923, and he was ordered to pay as a fine the amount of the judgment.
On October 26,1923, the alleged bankrupt filed a voluntary petition in bankruptcy in the District Court of the United States for the District of New Jersey, praying that he be adjudicated a bankrupt. On November 16, 1923, he applied for a reargument of the contempt order, which was subsequently denied. Thereupon an order was entered on December 15, 1923, adjudging the alleged bankrupt in contempt of court, under section 753 of the state Judiciary Law (Consol. Laws, c. 30), for defeating, impairing, impeding, and prejudicing the rights and remedies of the petitioner and the receiver of the corporation. It is the enforcement of this order which was stayed by the District Court. Below, as here, the first question presented is whether this was a debt which the bankrupt owed under the New York state decree, and, if so, was it dischargeable in bankruptcy? The court below decided that the question of whether it was a debt dischargeable in bankruptcy must be decided by the United States District Court for the District .of New Jersey, and for the purpose of keeping the status quo of the parties it restrained the petitioner from proceeding in the state court;.
Section 11 of the Bankruptcy Act (Comp. St. § 9595) permits the District Court to stay the state court proceedings, where the suit is founded upon a claim from which discharge in bankruptcy would be a release, and where suit is pending at the time of filing the petition. Such a stay may be granted until after an adjudication or dismissal of the petition. This is the exception contained in section 720 of the Revised Statutes of the United States (1 Comp. St. 1901, p. 581, now Judicial Code, § 265, being Comp. St. § 1242), which provides that a writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state. In re Koronsky, 170 F. 719, 96 C. C. A. 39, this court held, in considering the effect of the stay granted in an ex parte order in enjoining proceedings for the enforcement of a contempt order of the City Court of the City of New York, that fines are not dischargeable under the Bankruptcy Act, and pointed out that the punishment of an offender for contempt is a vindication of the dignity of the court, and does not lose its character as such because the statute authorizes the court to turn over the amount of the fine, when collected, to some person pecuniarily aggrieved by the offender’s misconduct. See, also, In re Spalding v. State of New York, 45 U. S. (4 How.) 21, 11 L. Ed. 858; In re Hall (D. C.) 170 F. 721.
Section 17- of the Bankruptcy Act (Comp. St. § 9601) provides that a discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in the fiduciary capacity. The findings in the state court in the equity suit conclusively show that the claim arose from the fraudulent conduct of the bankrupt in transferring the funds of the corporation, as an officer thereof, to his individual account, and it is further found that it was done solely for the purpose of rendering the corporation insolvent and unable to pay the petitioner’s debt. The findings of fact as to this fraud and its results will be accepted by us. Harper v. Rankin, 141 F. 626, 72 C. C. A. 320; In re Wollock (D. C.) 120 F. 516. Hill was the president, director, and principal stockholder of the corporation, and the transfer of the property, made in a voluntary way, as held in the state court, was made while he was acting in such capacity. The judgment obtained in the creditor’s action was not dischargeable in bankruptcy. It was based upon a liability of the bankrupt, created by his fraudulent misappropriation of the property of the corporation, and while he was acting as such officer of the corporation. He was an officer, as provided within section 17, for an officer there referred to includes within its meaning an officer of a private corporation. Harper v. Rankin, supra; In re Gulick (D. C.) 186 F. 350; Bloemecke v. Applegate (C. C. A.) 271 F. 595.
It therefore became the duty of the learned judge below to determine whether or not, under section 11 of the Bankruptcy Aet, the debt was dischargeable in bankruptcy, in passing upon the stay sought and obtained. This was not a matter of discretion. It was Ms duty to inquire into the nature! of the cause of action pending in the state court, the character of the judgment, so as to determine the facts upon which the decree in the state court was based (In re Lawrence [D. C.] 163 F. 131), and, after such knowledge, then to determine whether or not the application of the petitioner for a stay in the proceedings in the state court should be granted. The same duty rests upon an ancillary court in bankruptcy. In re United Wireless Telegraph Co. (D. C.) 192 F. 238. The stay was improvidently granted.
Order reversed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond2_4_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Dawn L. BOYKINS, a minor by Louis Boykins, Jr., her father and next friend, Appellant, v. AMBRIDGE AREA SCHOOL DISTRICT, Ambridge Area School District Board of Education, Dr. Paul R. Vochko, Individually and as Superintendent of Schools and Mary Frances Buk, Individually and as sponsor and coach, Appellees.
No. 79-2027.
United States Court of Appeals, Third Circuit.
Argued Feb. 19, 1980.
Decided May 9, 1980.
David B. Washington (argued), Pittsburgh, Pa., for appellant.
Michael V. Gilberti (argued), Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for appellee Dr. Paul R. Vochko.
Before GIBBONS and ROSENN, Circuit Judges, ánd SHAPIRO, District Judge.
Honorable Norma L. Shapiro, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Dawn L. Boykins, a minor suing by Louis Boykins, Jr., her father and next friend, appeals from an order granting a final judgment in favor of the defendants on their motion for summary judgment. The defendants are a school district board of education, the district superintendent, and the coach of a drill team organized as a school activity. Boykins charged she was dismissed from the team because she was black. We reverse.
I.
On May 4, 1976 the Boykins filed a verified Complaint alleging that Dawn, a black student attending the Ambridge Area School District high school, had on August 28, 1975 been dismissed as a member of the Bridger Belles, a drill team conducted as a school activity. The Complaint further alleged that although the ostensible reason for her dismissal was that, in violation of drill team regulations, she had missed practice for the sixth time, the actual reason for her dismissal was that she was black. It alleged, further, that she appealed to the School Board, which on September 9, 1975 ordered her reinstatement. Attached to the Complaint as Exhibit A is a copy of the School Board’s September 10, 1975 decision, which notes an inconsistency in the method in which two cases of absence, involving one black student and one white student, were handled; a further inconsistency in the rules permitting excused absence for vacation but not for scheduled work; the fact that the school superintendent had ruled, following Dawn’s fifth absence, that she would be in compliance if she attended all sessions of Band Camp practice, which she had done; and the fact that the sixth absence was not from a regularly scheduled practice session, but from one scheduled on only a few hours’ notice and at a time when she was scheduled to work. The Complaint further alleges that on September 11, 1975, the Board, faced with a threatened resignation of Mrs. Mary Frances Buk, the coach/sponsor of the drill team, changed its position, withdrew its direction to reinstate Dawn, and ruled that the coach/sponsor had the prerogative of choosing her participants. It alleges, further:
The changing of the Board’s position and the action of the coach/sponsor was done because plaintiff was black and even though all parties knew that white girls had been reinstated who actually missed six (6) days of practice.
The defendants’ actions were alleged to be in violation of 42 U.S.C. § 1983 and § 1985. The only relief requested was damages.
In due course the defendants, the School District Board of Education, the Superintendent of Schools, and the coach/sponsor, Mrs. Buk, filed answers.
II.
On June 30, 1977 Louis Boykins, Jr., was deposed. His deposition, on file, discloses that at one time the local chapter of the NAACP, concerned that the school did not select black cheerleaders or drum majorettes, suggested the formation of a drill team which would give girls of minority races greater opportunity to participate. At that time, according to his testimony, there were no black girls on the majorette squad or the cheerleading squad. When the drill team was formed Dawn tried out and qualified. Thereafter, according to Mr. Boykins, Mrs. Buk interrogated Dawn about the activities of the NAACP with respects to charges of discrimination in the selection of drum majorettes and cheerleaders. He described the interrogation as a grilling. Mrs. Buk, he testified, was also a coordinator of cheerleaders and majorettes. The drill team scheduled practices during the summer evenings when Dawn, like the other Boykins children, had a part time summer job. Boykins testified that Mrs. Buk caused other members of the drill team to check at Friendly Ice Cream to see if Dawn was actually working when she claimed to be. Eventually Dawn told her father that she had been threatened by Mrs. Buk with dismissal for missing practices, but disputed the number of times she actually had missed practice. Boykins met with Mrs. Buk, who was adamant in her position about attendance despite any conflict with Dawn’s work schedule. Boykins then called the president of the school board, who in turn called the superintendent of schools, Dr. Vochko, who said “Well, tell Lou that any problem just as long as Dawn does not miss any practices for band camp, . [s]he should have no problem.” Band Camp was a two week period of morning and afternoon sessions, all of which Dawn attended. On a Wednesday Mrs. Buk, at midday, came to Band Camp and told the drill team members that they would have to come to an additional practice session that evening, when, as Mrs. Buk knew, Dawn was scheduled to work. When his daughter asked him whether she should go to work Boykins, in reliance on what the superintendent had said about attending all Band Camp sessions, told her to do so. The next morning Dawn attended Band Camp, and at noon was told by Mrs. Buk that she was dismissed from the drill team. Boykins called Dr. Vochko, who, he says, instructed Mrs. Buk, and Mr. Tolfa, the band director, to put Dawn back on the team. However, when Dawn returned to practice she was excluded. Boykins also testified:
There was a young lady, Terry Kashuba, who had missed drill team practice during school. Mrs. Buk dismissed Terry Kashuba because of this. After Mrs. Buk dismissed Dawn, said she didn’t want Dawn, she then brought Terry Kushuba back on the drill team, says, “You’re back on.”
Terry Kashuba is white.
Thereafter the school board meeting of September 10,1975, referred to in the Complaint, took place, and Boykins was advised, first of the board’s favorable decision and later of its change of position. By then school had reopened, and in the high school a regular activities period was scheduled, during which practice for activities such as band, football and drill team took place. For two or three weeks while the drill team practiced, Dawn was placed in an unattended classroom by herself. Boykins’ deposition was filed on July 22, 1977.
III.
On December 23, 1977 defendant Vochko filed a motion for summary judgment. The motion was not supported by any affidavits. It asserts two grounds for dismissing the Complaint. The first is that on December 3, 1975 plaintiffs presented a Complaint, identical in all particulars to the instant Complaint, to the Pennsylvania Human Relations Commission, at Docket No. P-1172; that hearings were held on that Complaint; that the Commission found there was insufficient basis for a finding of discrimination; that no appeal was taken from the Commission’s judgment; and that the instant case is barred by collateral estoppel or res judicata. The second ground asserted is that the Complaint is insufficiently specific to meet the pleading standards of this court for civil rights actions. Vochko’s moving papers did not contain any pleadings, transcript of proceedings, or orders of the Pennsylvania Human Relations Commission, but attached a letter dated September 23, 1977 from the Executive Director of the Commission to the attorneys for the school board, describing the decision of the Commission. The letter says that the Commission determined that the Boykins’ charge was not substantiated. Nowhere in the moving papers, however, is there any disclosure of the inquiry which prompted the Executive Director’s September 23, 1977 letter, or any disclosure of his authority to certify what the Commission decided.
In response to the Vochko motion for summary judgment the Boykins’ attorney, on January 16, 1978, filed an answer. Like the motion, it is not supported by an affidavit. It does, however, deny unequivocally that the Human Relations Commission ever conducted a hearing on the merits, or made a ruling on the merits. Furthermore, attached as an exhibit to the answer is a letter from Cheryl L. Allen, Assistant General Counsel to the Commission, dated March 15,1977, advising the Boykins’ attorney:
RE: Docket No. P-1172
Louise Boykins v. Ambridge Area School District Dear Mr. Washington:
This is to confirm our recent telephone conversation regarding further Commission action in the above case.
This case will be closed for the following reasons:
1. As the Complainant’s daughter will graduate in June, 1977, a public hearing obtaining an order to reinstate her to the drill team would be inappropriate.
2. The Commission presently does not have the power to order compensatory damages in this case.
I hope that this adequately states our position on this matter.
For further information, please contact me.
The Assistant General Counsel’s statement that the Human Relations Commission cannot order compensatory damages accurately reflects Pennsylvania law. Lee v. Walnut Garden Apartments, Inc., 479 Pa. 142, 144, 387 A.2d 875, 876 (1978) (per curiam); Midland Heights Homes, Inc. v. Commonwealth of Pa. Human Relations Comm’n, 478 Pa. 625, 626, 387 A.2d 664, 664 (1978) (per curiam); Pennsylvania Human Relations Comm’n v. Straw, 478 Pa. 463, 465, 387 A.2d 75, 76 (1978); Pennsylvania Human Relations Comm’n v. Zamantakis, 478 Pa. 454, 457-59, 387 A.2d 70, 72-73 (1978). The only relief requested in the instant action is damages.
Although the Boykins’ answer to the motion for summary judgment was filed on January 16, 1978, that motion was not disposed of immediately. The case was pretried on April 24, 1979, and on May 1, 1979 all defendants filed a new motion for summary judgment identical in every respect to that filed in December 1977 by defendant Vochko. As before, there were no supporting affidavits. There was then on file not only the verified Complaint and the answer to the Vochko motion, but also the Boykins deposition.
On May 30, 1979, the district court granted the motion for summary judgment. The Court listed five reasons:
(1) Dawn’s graduation rendered the case moot;
(2) the incident complained of was not racially motivated;
(3) the drill team activity was that of a private social organization managed by “fans;”
(4) the decision of the Pennsylvania Human Relations Commission adjudicated the charge of racial discrimination adversely to the plaintiffs; and
(5) the complaint lacked the specificity required for a civil rights act case.
This appeal followed.
IV.
On appeal the defendants do not defend the first three reasons relied upon by the District Court. They acknowledge that Dawn’s graduation did not moot her claim for money damages, that no affidavit put in issue the allegations of racial motivation, and that the drill team was an activity sponsored by the school district’s high school. They do contend that an affirmance is proper for either of the remaining grounds. We do not agree.
We turn first to the claimed judgment preclusion effect of the decision of the Pennsylvania Human Relations Commission. On the papers before the court it is impossible to tell what, if anything, the Commission decided. All that the record contains on that issue is two conflicting letters, one from the Commission’s Assistant General Counsel and another from its Executive Director. One letter says there was no hearing and the other, while not saying in as many words that there was a hearing, says that the Commission concluded that there were insufficient facts to support the charge of discrimination. If the motion for summary judgment, unsupported by an affidavit, and resting on a copy of a letter describing in conclusory terms the legal effect of the Commission proceeding, was sufficient, under Fed.R. Civ.P. 56, to require any response, certainly the answer containing the conflicting letter from the Commission’s Assistant General Counsel presented a disputed issue of fact. Moreover even if the actual record of the Commission proceedings had been presented there would be difficulties with a summary disposition. As we noted above, the Supreme Court of Pennsylvania has established beyond doubt that the Commission lacks jurisdiction to award compensatory damages, the relief sought here. Certainly the claims were not the same. Thus res judicata can hardly apply. Moreover the Pennsylvania Supreme Court has narrowly circumscribed the discovery tools available in proceedings before the Commission. Pennsylvania Human Relations Comm’n v. St. Joe Minerals Corp., 476 Pa. 302, 310-12, 382 A.2d 731, 735 (1978). Considering those limitations on discovery, we have no idea what collateral estoppel effect a Pennsylvania court would give to a Commission order. The defendants at oral argument candidly acknowledged that there is no case law illuminating that question. Cf. City of Philadelphia v. Stradford Arms, Inc., 1 Pa. Cmwlth. 190, 274 A.2d 277, 280 (1971). Certainly we would not give greater judgment preclusive effect to a Commission proceeding than would Pennsylvania. See 28 U.S.C. § 1738. Whether we would give any judgment preclusion effect to a state administrative agency proceeding in a suit under 42 U.S.C. § 1983 is at least an open question. See Prentis v. Atlantic Coast Line, 211 U.S. 210, 226-27, 29 S.Ct. 67, 69, 63 L.Ed. 150 (1908) (distinguishing between legislative and adjudicative functions; legislative-type proceedings of state administrative agency not entitled to res judicata effect); cf. Moore v. City of East Cleveland, 431 U.S. 494, 524 n.2, 97 S.Ct. 1932, 1948, 52 L.Ed.2d 531 (1977) (Burger, C. J., dissenting) (because state administrative agency’s determinations have no collateral estoppel effect, requiring exhaustion would not limit access to federal forum); Wooley v. Maynard, 430 U.S. 705, 710-11, 97 S.Ct. 1428, 1432-33, 51 L.Ed.2d 752 (1977) (suggesting state conviction no bar to federal litigation); Huffman v. Pursue, Ltd., 420 U.S. 592, 606 n.18, 95 S.Ct. 1200, 1209, 43 L.Ed.2d 482 (1975) (“we in no way intend to suggest that the normal rules of res judicata and judicial estoppel do not operate to bar relitigation in actions under 42 U.S.C. § 1983 of federal issues arising in state court proceedings”). Compare In re Federal Water & Gas Corp., 188 F.2d 100, 104 (3d Cir.) (quasi-judicial determinations of administrative agency are entitled to res judicata effect), cert. denied sub nom. Chenery Corp. v. SEC, 341 U.S. 953, 71 S.Ct. 1018, 95 L.Ed. 1375 (1951) with Roudebush v. Hartke, 405 U.S. 15, 20-21, 92 S.Ct. 804, 808, 31 L.Ed.2d 1 (1972) (federal courts can review legislative acts of state courts and administrative agencies) and FTC v. Texaco, Inc., 555 F.2d 862, 894 (D.C.Cir.) (Leventhal, J., concurring) (individualized rate-making decisions of state administrative agencies have no res judicata effect), cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). See generally K. Davis, Administrative Law Text §§ 18.02, 18.03 (1972). Certainly the record on which the district court acted is not one compelling us to jump into so difficult an area. We should have before us something more establishing the affirmative defense relied upon than two conflicting letters.
As to the specificity required in a Civil Rights Act Complaint, the currently governing authority is Hall v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978). There we held plaintiff’s Complaint met the pleading standard of Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976) when it “alleged the conduct violating his rights (racially discriminatory activity), time (March 17, 1976), place (King of Prussia) and those responsible (various state and bank officials).” Hall v. Pennsylvania State Police, 570 F.2d at 89. The instant Complaint amply meets the Hall test. It alleges the conduct, expulsion from the drill team, the improper racial motive, the times and places of the activity complained of, and the persons responsible, Mrs. Buk, Dr. Vochko, and the members of the School Board. From the facts alleged we can weigh the substantiality of the claim. No more is required. See Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1171-73 (3d Cir. 1978). Moreover the Complaint was fleshed out in this case by an extensive deposition.
V.
The order granting summary judgment will be reversed and the case remanded for further proceedings.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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songer_respond1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
BRIGGS & STRATTON CORPORATION v. QUICK ACTION IGNITION CO.
No. 6271.
Circuit Court of Appeals, Seventh Circuit.
Nov. 4, 1937.
Rehearing Denied Dec. 14, 1937.
Ira Milton Jones, of Milwaukee, Wis., and George A. Chritton and Richard Spencer, both of Chicago, 111., for appellant.
N. S. Amstutz, of Valparaiso, Ind., and John G. Yeagley and J. Walter Yeagley, both of South Bend, Ind., for appellee.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Sought to be reversed is a decree finding valid and infringed claims 7 and 8 of patent No. 1,275,294 and claim 3 of patent No. 1,338,151, both assigned to appellee by the inventor Oglesby. The first is for "a combined internal combustion engine and magneto,” and the second, “detachable magneto-armature heads and core.” The claims appear in the footnote. •
Oglesby’s device of patent No. 1,275,-294, had to do with a magneto attached to and combined with an internal combustion engine. The application was dated January 5, 1917, and the grant, August 13, 1918. The suit included claims 1 to 6 of the first patent, as well as claims 7 and 8, but the District Court refused to grant relief upon all except 7 and 8. Appellant insists that the patent is anticipated by prior patents and uses, and that, in view of the existing prior art, only mechanical skill was involved in devising the combination claimed.
Claims 7 and 8 of patent No. 1,275,294 describe a combination of the prior art flywheel magneto applied to the well known crankcase of an internal combustion engine (Múeller 1,147,038), centered and mounted upon the front of the crankshaft of such case. Flywheel magnetos were old, but appellee claims that Oglesby achieved more efficient operation at low speed and greater ease of assembling. Specifically it relies upon the combination of a crankcase wherein the rotating shaft carries a removable end plate, which also serves as a bearing for the shaft, an armature on the plate, a circuit breaker and condenser “placed adjacent thereto” or “supported on the crankcase end plate, adjacent the path of travel” of a field magnet, adapted to pass by the armature, and a cam carried by the shaft for operating the circuit breaker to produce periodic currents of an undirectional character in the armature coil as the shaft is revolved. This, it says, is a combination both novel and useful, constituting a product of inventive genius.
Claims 7 and 8 differ from claims 1 and 6, upon which the court refused to grant relief, only by adding the circuit breaker and operating it by means of a cam carried by the shaft, and a careful analysis of the evidence convinces us that the claim for distinction between Oglesby and the prior art must lie chiefly in the alleged addition of this element. Mueller, in patent No. 1,-147,038, built a unitary compact fly-wheel magneto mounted upon the crankshaft, but he did not provide that the plate upon which the magneto was mounted should be utilized also as the end plate of the crqnk case. He recognized that the generator type flywheel magneto for internal combustion engines was old in the'art and alleged that he was endeavoring to simplify the structure, reduce the cost of construction, and more fully to expose the timer mechanism and electrical connections, whereby repairs and readjustments might be facilitated. He placed the magneto at the end of the crankshaft, but he did not, as Oglesby did, substitute for the conventional crankcase end plate, the outer surface of the magneto container. He specified that, in his combination there should be used “a circuit interrupter,” but he did not use the specific construction or location of Oglesby. We are convinced that all that Oglesby did was to take Mueller’s crankcase and mount it on the crankcase so as to obviate the use of the conventional end plate by substituting in lieu thereof the old mounting plate of flywheel magnetos, such as Mueller, and relocate the circuit breaker. Apparently all that a skilled mechanic dealing in the art, with Mueller before him, needed to do, in applying the flywheel magneto of Mueller to the conventional internal combustion engine crankshaft, was to make these changes. The elements of both magnetos are the same, and the results obtained are identical.
Nor was Mueller the first to mount his magneto upon the end of the crankcase. Podlesak, 948,483, application filed 1901, mounted a magneto in the flywheel of the engine at the head of the crankcase and provided a make and break ignition mechanism accomplishing the interruption to the current by the use of a cam oscillated and retained in any desired position of adjustment. This make and break connection, he said, might “be of any well known and suitable construction.”
Oglesby was delving in an active and rather crowded art, and the question arises, Did he make a combination, similar to those which existed previously, performing the same functions that those .performed, of such greater facility, ease, and simplicity as to constitute invention? Is what he did anything more than what would have occurred to any ordinary skilled engineer with the prior art before him?. .We think not.
We think that the most that can be said is that he gave a somewhat different form to a familiar combination, using the same elements, without achieving from them any new functions and without accomplishing any new result; that he merely carried forward the original thought by eliminating one plate on the end of a crankshaft and by a slightly different location of the recognized essential circuit breaker. These two changes it seems to us did not involve invention. They were rather a mechanical readaptation of familiar devices.
We have not mentioned the prior uses. The testimony of both parties as to the dates of conception of respective devices is based largely upon oral testimony as to what occurred more than 15 years before without substantiating documentary evidence. Oglesby testified originally that his date of conception was in 1917. He subsequently changed his story and offered the testimony of other witnesses, depending entirely upon their personal recollection, to carry his date back to early 1915. Appellant produced rather convincing testimony of a prior use of what, to our thinking, constitutes an anticipatory device by Evinrude, but again the testimony is almost wholly dependent upon the parol testimony of witnesses as to personal recollection of long past events. If Evinrude was first, as we are inclined to believe, for it was certain that his device was conceived in the fall of 1914 and the very first of 1915, his teachings were clearly anticipatory of everything that Oglesby did. The location of the circuit breaker was not the same, but with the recognition of the essential presence of a circuit breaker, its location again was a matter of the exercise of mere mechanical skill. However, in reaching our conclusion we have not grounded it upon the alleged prior uses. It is not necessary to do so in view of our conclusions as to the effect of the prior art in the way of prior patents.
Courts are loathe to ground final decisions as to priority upon the parol testimony of witnesses, many of whom are related by consanguinity or other ties, as to events having to do with the precise and detailed construction of a specific electrical combination some twenty years ago. Consequently we have preferred to base our conclusion upon the documentary evidence rather than upon the parol testimony.
In patent No. 1,338,151, Oglesby claimed that he had created an improvement in a magneto core structure which included duplicate laminae groupings adapted to be interlaced so as to permit prewinding of the coil apart from the core assembly and the duplicate laminae groupings then assembled with the coil and, when assembled, forming a winding space in which the coil is received, which space is “between and beneath the heads.” The claim includes the word “beneath.” In our opinion it was inadvertently included and should be given no effect. But we are further of the opinion that British patent No. 14,732 of 1902 discloses a structure so similar to that of Oglesby as to be identically equivalent thereto. In each are armature arms; in each, winding of a coil on a space between the armatures, which are open at the opposite side of the device. If we were to give any effect to the word “beneath,” clearly the device of appellant would not come within the teaching of the patent. But, ignoring that word, we are unable to perceive that there is any invention in this patent. If it should be held valid, there is no infringement.
The decree of the District Court is reversed, with directions to proceed in accord with this opinion.
Claims 7 and 8 of patent No. 1,275,-294. Claim 7 — In internal combustion engines, a crankcase, a shaft rotatable therein, a removable end plate for said case also serving as a bearing for shaft, an armature supported by the plate, a circuit breaker and condenser placed adjacent thereto, a field magnet attached to the shaft adapted to pass by the armature, and a cam carried by the shaft for periodically operating the circuit breaker as the shaft is revolved.
Claim 8 — In internal combustion engines, a crankcase, a removable and plate therefor, a crankshaft rotatable therein, a fly wheel a field magnet and cam carried by the shaft, an armature comprising a coil connected to a circuit breaker and condenser supported on the crankcase and plate adjacent the path of travel of the field magnet, and adapted through such rotation to have periodic currents generated in its coil and the circuit breaker actuated by the cam as the shaft revolves.
Claim 3 of patent No. 1,338,151. An article of manufacture comprising a combined magnet core and curved head lamination formed integrally with each other, similarly formed duplicate laminae assembled adjacent each other to constitute a group, independently formed head laminae similarly curved and assembled adjacent the other heads to constitute a half-core unit, duplicate core and head parts constituting a second group, similarly shaped, curved heads assembled with the heads of the second group, to also constitute a half-core unit both units being assembled together so as to form a winding space between and beneath the heads.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Appellee, v. SOCIETY OF INDEPENDENT GASOLINE MARKETERS OF AMERICA, Appellant. UNITED STATES of America, Appellee, v. AMERADA HESS CORPORATION, Appellant. UNITED STATES of America, Appellee, v. ASHLAND OIL, INC., Appellant. UNITED STATES of America, Appellee, v. KAYO OIL COMPANY, Appellant. UNITED STATES of America, Appellee, v. The MEADVILLE CORPORATION, Appellant. UNITED STATES of America, Appellee, v. PETROLEUM MARKETING CORPORATION, Appellant. UNITED STATES of America, Appellee, v. Robert R. CAVIN, Appellant.
Nos. 77-2515 to 77-2521.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1979.
Decided December 26, 1979.
Upon Rehearing June 24, 1980.
Widener, Circuit Judge, filed concurring opinion.
K. K. Hall, Circuit Judge, filed opinion in which he dissented in part.
Wilbur D. Preston, Jr., Baltimore, Md. (Nevett Steele, Jr., Gerson B. Mehlman, Whiteford, Taylor, Preston, Primble & Johnston, Baltimore, Md., A. T. Biggers, Continental Oil Company, Houston, Tex., on brief), for appellant Kayo Oil Company.
John H. Lewin, Jr., Baltimore, Md. (Benson E. Legg, Venable, Baetzer & Howard, Baltimore, Md., Adlai S. Hardin, Jr., Mil-bank, Tween, Hadley & McCloy, New York City, Howard B. Myers, Amerada Hess Corporation, Woodbridge, N. J., on brief), for appellant Amerada Hess Corporation.
William Simon, Washington, D. C. (Ray S. Bolze, Roger C. Simmons, Howrey & Simon, Washington, D. C., Robert H. Compton, Ashland Petroleum Company, Ashland, Ky., on brief), for appellant Ashland Oil, Inc.
Robert E. Nagle, Donald T. Bucklin, Washington, D. C. (Wald, Harkrader & Ross, Washington, D. C., on brief), for appellant Robert R. Cavin.
David F. Albright, Baltimore, Md. (Richard M. Kremen, Franklin T. Caudill, Seemes, Bowen & Semmes, Baltimore, Md., on brief), for appellant Petroleum Marketing Corporation.
Philip L. Cohan, David Freeman, Ginsburg, Feldman & Bress, Washington, D. C., on brief, for appellant The Meadville Corporation.
David A. Donohoe, Jay D. Zeiler, Akin, Gump, Strauss, Hauer & Feld, Washington, D. C., on brief, for appellant Society of Independent Gasoline Marketers of America.
Frederic Freilicher, John J. Powers, III, Dept, of Justice, Washington, D. C. (John H. Shenefield, Asst. Atty. Gen., Rodney O. Thorson, James F. Ponsoldt, Dept, of Justice, Washington, D. C., on brief), for appel-lee, United States of America.
Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.
FIELD, Senior Circuit Judge:
On June 1, 1976, an indictment was returned in the District of Maryland against The Society of Independent Gasoline Marketers of America (“SIGMA”), Amerada Hess Corporation (“Hess”), Ashland Oil, Inc. (“Ashland”), Continental Oil Company (“Continental”), Crown Central Petroleum (“Crown”), Kayo Oil Company (“Kayo”), The Meadville Corporation (“Meadville”), Petroleum Marketing Corporation (“PMC”), Robert R. Cavin (“Cavin”), Norman Goldberg (“Goldberg”), Charles J. Luellen (“Luellen”) and W. H. Burnap (“Burnap”). The indictment, drawn in one count, charged that the defendants had violated Section 1 of the Sherman Act, 15 U.S.C. § 1, prior to its 1974 amendments, by engaging in a conspiracy to fix prices for the retail sale of gasoline in unreasonable restraint of commerce.
After extensive pretrial proceedings, the trial commenced on May 2, 1977, and at the conclusion of the Government’s case the district court granted the motions of three of the individual defendants, Luellen, Goldberg and Burnap, for judgments of acquittal. The trial continued as to the remaining defendants, and on August 30, 1977, the jury returned verdicts of not guilty with respect to Crown and Continental and guilty as to SIGMA, Hess, Ashland, Kayo, Meadville, PMC and Cavin. Judgments of conviction were entered pursuant to the jury’s verdicts and the convicted defendants have appealed.
In an opinion filed December 26,1979, the panel unanimously affirmed the convictions of all of the defendants except Ashland. Similarly, the panel unanimously reversed the conviction of Cavin. With respect to Ashland, a majority of the panel affirmed the conviction, Judge Widener dissenting. Petitions for rehearing and rehearing en banc were filed, and upon the suggestion that the case be reheard en banc less than a majority of the judges in regular active service voted in favor thereof. Accordingly, rehearing en banc is denied. On the petitions for rehearing, however, a majority of the panel are now of the opinion that the conviction of Ashland must be reversed. Additionally, the panel is of the opinion that our disposition of Cavin’s appeal must be modified. To that effect, we withdraw our prior opinion and file the present opinion in lieu thereof.
I
During the period covered by the indictment, and for many years prior thereto, gasoline was sold to motorists through essentially two different types of retail service stations. “Major brand” stations sold the gasoline of major companies, e. g., Exxon, Texaco, Gulf, etc., and in many instances were operated by dealers who were not employees of the major companies. These stations bore brand names that were widely advertised and sold brand name products, including tires, batteries and parts. Many of them offered repair service and accepted recognized company credit cards. “Private brand” stations, on the other hand, offered gasoline under names which were not widely advertised, e. g., Redhead, Kayo, Scatt, etc., and were usually manned by individuals who worked directly for the company which owned the stations. Private brand stations ordinarily offered few products other than gasoline, and spent little money, if any, for media advertising.
With these differences in service, such stations competed with the major brands almost exclusively upon the basis of price. The private brand stations attracted customers from the majors by pricing their gasoline several cents a gallon below that of the major brand stations in the same locale, and as a result the price of major brand gasoline imposed a “ceiling” on private brand prices. In other words, to be competitive the private brand retailer was required to maintain a sufficiently attractive “differential” between his price and that of the majors. Because they were selling gasoline at less than that charged by the majors, the profit margin of the private brand stations was reduced to a marginal level, and the volume of a private brand’s sales was vitally important. In the highly competitive private brand market volume was, of course, significantly related to price. As a result, the private brand company, in the operation of a local station, took into account in pricing its gasoline from day-today not only the price charged in that locale by the major brand stations, but the prices charged by other independents in the same market.
During the period in question the companies which operated private brand stations had available a certain amount of current and accurate data relative to pricing patterns in the major brand gasoline market from a publication known as “Platt’s Oil-gram”. This established trade newspaper conducts price surveys of the majors and publishes such pricing data for major brand markets throughout the country, including advance announcements of upcoming wholesale price moves by the majors. Much information, however, which was vital to the private brand companies could not be gleaned from Oilgram. Oilgram carried little news of major brand retail price behavior on a station-by-station or “street-basis,” and such information was highly important to the private brand companies since their competitive vitality depended upon the ability of their individual retail outlets to undercut at all times the prices charged by neighboring major brand stations. More significantly, Oilgram carried practically no news concerning other private brand retailers’ price behavior, either present or future, nor any analysis of the potential impact of major brand.market behavior upon the private brand market.
In part to fill this void, the private brand retailers formed a trade association called The Society of Independent Gasoline Marketers of America (“SIGMA”). SIGMA’s members were firms and individuals operating private brand stations in various parts of the country. Its board of directors and officers were elected from the membership and its day-to-day operations were managed by a full-time salaried director and his supporting staff. Ordinarily the membership met in convention on a semi-annual basis. SIGMA was characterized at trial by the defendants as an “oral Platt’s Oilgram” for independents. It collected information from various sources (including telephone calls to and from private brand companies in which the companies would discuss upcoming market decisions), and it would relay such information to its members, usually by telephone. Information provided by SIGMA to its members included the behavior of independents and majors in adjoining markets, the impact of wholesale prices on retail price structures, upcoming price moves by other independents, opportunities for increased prices or the perceived need for decreases, and generally such other data which might be of assistance to the members in meeting their competition.
The indictment charged that the defendants, in effectuating the conspiracy to fix prices, “used SIGMA as a clearing house for gasoline pricing information in order to coordinate price increases and to eliminate discounting and settle pricing disputes,” and that they “met at the occasion of SIGMA meetings and discussed pricing strategy, including the coordinated increase of retail gasoline prices and the curtailment and elimination of price cutting and discount practices”. The indictment alleged that this use of SIGMA, supplemented by telephonic or other contact between the several defendants with respect to coordinated price increases and agreements, had resulted in the stabilization of artificial and noncompetitive prices of gasoline, the effect of which was to restrain competition among the defendants and their co-conspirators.
II
In their joint brief the defendants make the prefatory charge that they “were convicted of criminal price fixing for exchanging information on prices,” and assert that no conviction has ever been sustained on such evidence in a highly competitive market of which the participants had a relatively minimal share. In making this contention the defendants draw heavily upon the Supreme Court’s recent decision in United States v. U. S. Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Gypsum involved the practice of inter-seller price verification, a practice which is not, in itself, unlawful per se. The Government contended that such an exchange of price information was violative of Section 1 of the Sherman Act if it had either the purpose or the effect of stabilizing prices. The Court held, however, that an effect on prices, without more, would not support a criminal conviction, and that it was necessary to show that such a consequence was intended by the alleged participants.
There is a marked difference between the case before us and the one considered by the Court in Gypsum. Here the indictment charged the defendants with a conspiracy to fix prices, and the “exchange of information” was merely one of the activities by which the alleged agreement was effectuated. “Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129 (1940). Since in a price-fixing conspiracy the conduct is illegal per se, further inquiry on the issues of intent or the anti-competitive effect is not required. The mere existence of a price-fixing agreement establishes the defendants’ illegal purpose since “[t]he aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition.” United States v. Trenton Potteries, 273 U.S. 392, 397, 47 S.Ct. 377, 379, 71 L.Ed. 700 (1926).
Ill
The principal challenge of the defendants is that the Government failed to offer sufficient evidence to prove the conspiracy which was charged in the indictment. The indictment defined the geographical area of the conspiracy as the “Middle Atlantic states of New York, Pennsylvania, New Jersey, Delaware, Maryland and Virginia, as well as the District of Columbia. The defendants maintain that it was necessary for the Government to demonstrate a single continuing conspiracy to fix gasoline prices throughout the entire Middle Atlantic region, and contend that the only evidence of the area-wide coordination of price moves related to general increases in November, 1970, July, 1971, and August of 1972. The defendants acknowledge that there were area-wide increases on those occasions, but assert that the evidence failed to show that they were the result of any price-fixing agreement. On the contrary, they suggest that the evidence clearly showed that the price moves on these three occasions were the result of economic forces at work in the market place over which the defendants had no possible control.
The defendants argue that other than those three occasions, the Government’s evidence, at best, proved nothing but a series of “local and isolated incidents occurring within the Middle Atlantic states, involving some of the defendants and co-conspirators at different, and shorter, periods of time.” Even if we were to accept the defendants’ criticism of the probative quality of the evidence on the three area-wide increases, we think the Government’s evidence with respect to the various local markets was proper for the consideration of the jury. Under the indictment the conspiracy embraced an agreement not only to fix prices on an area-wide basis, but also to establish prices in local markets within the region and to effectuate price changes on a coordinated basis. The Government’s evidence of the single conspiracy implemented in this manner was not merely circumstantial in nature. The Government’s witnesses, many of whom were employed by the corporate appellants, testified concerning the nature and intent of their pricing communications, and their testimony was augmented in many respects by the contemporaneous records of the defendants. Our review of the record persuades us that the evidence was sufficient to support the conclusion of the jury that the defendants were working together for the accomplishment of their common purpose to fix prices within the geographical area described in the indictment.
We are further of the opinion that the court’s instructions to the jury were consistent with the indictment. The court instructed the jury that the defendants were charged with a “single, continuing conspiracy” to fix prices of gasoline in the Middle Atlantic states and, adverting to the evidence with respect to local pricing incidents, emphasized that “if you find that a defendant engaged in isolated incidents of gasoline price fixing, but was not a party to a single overall conspiracy covering the six-state area and the District of Columbia area, you must find that defendant not guilty of the matters charged in the indictment.” This language, we think, made it crystal clear to the jury that their consideration of the evidence should be addressed to the ultimate issue of a single overall conspiracy.
IV
Defendants also claim that there was a fatal variance of proof from the original indictment, the bill of particulars, and the pre-trial stipulation of the parties. Much of what we have said with respect to the sufficiency of the evidence applies equally to this contention of the defendants which, in a large degree, is predicated upon their argument that the indictment required a showing of continuous area-wide price manipulation. As we have noted, there was substantial evidence to support the jury’s finding of guilt and, assuredly, the defendants were not convicted upon a charge that was not specified in the indictment, nor were they uninformed of the charge against them. Additionally, the charges and specifications found within the four corners of the indictment, the bill of particulars, and the pre-trial stipulation not only informed the defendants of the charges against them, but are sufficiently clear to allow the defendants to assert double jeopardy in the event of any future prosecution for the same conduct.
V
We find no merit in the defendants’ charge that the trial court improperly denied their request for a more detailed bill of particulars. Pursuant to a stipulation entered into five months prior to trial, the Government supplied the defendants with copies of all grand jury testimony, access to all documents subpoenaed from non-defendants; all documents voluntarily submitted to the Government by third parties in the course of the investigation; and all available Brady material. In further compliance with the stipulation the defendants received copies of all trial exhibits thirty days prior to trial, as well as a list of intended witnesses and Jencks Act material fourteen days prior to trial. In the light of this extensive disclosure by the Government there was no abuse of discretion by the trial court in declining to require the Government to supply the further information requested by the defendants. See United States v. Schembari, 484 F.2d 931 (4 Cir. 1973).
VI
The Government’s case against the defendant, Ashland, was based primarily upon the theory that Ashland exercised direct control over the retail operations of five of its subsidiary corporations, including Payless Stations, Inc. (“Payless”). One of the Government’s principal witnesses on the question of Ashland’s control was a former vice-president of Payless, who was in charge of its pricing for the period from 1963 through 1973, and who was employed by the company from 1956 through December of 1973. This witness provided direct testimony of Ashland’s control over its subsidiaries. His testimony also included other information regarding the participation of Ashland and Payless in the conspiracy and the relationship of Payless with SIGMA.
This key witness had been hospitalized for psychiatric problems on two separate occasions in Our Lady of Peace Hospital in Louisville, Kentucky, and counsel for Ash-land subpoenaed the hospital records. They were produced by the hospital administrator who was directed to deliver them to the district judge. After examining the records in camera, the judge advised counsel that they reflected two periods of hospitalization, the first being from July 26 to August 29, 1966, and the second from November 20 until December 24,1968 and that the hospitalizations involved “a mental disorder or illness at that time.”
Concluding that the disclosure of the records was within his discretion, the district judge declined to deliver them to counsel for the reason, among others, that he did “not know to what extent the Government’s examination of the witness will include questioning during the relative period” (App.Vol. 3, at 777, 778). In making this ruling, however, the district judge stated that he was not foreclosing counsel for Ash-land from questioning the witness about the two periods of hospitalization, but that he would rule on the questions as the cross-examination of the witness developed.
The hospital records were sealed by the district judge and after this appeal was filed Ashland moved this court for leave to examine such records. The motion was denied with the provision that counsel for Ashland might renew the motion at the time of oral argument. Following oral argument we granted Ashland’s counsel access to the records and they were jointly examined by counsel for Ashland and the Government. Based on this examination of the hospital records, with leave of the court, both Ashland and the Government filed supplemental briefs on the issue of the relevancy of these records.
Counsel for Ashland contends that in denying access to the hospital records the trial court prejudicially impaired Ashland’s ability to effectively cross-examine the witness. Ashland argues, among other things, that the hospital records were significant for the purpose of evaluating the witness’ perceptive ability during the period in question and suggests, for instance, that if the witness were suffering from paranoia, he might have taken an irrational view of his communications with Ashland and interpreted simple inquiries as commands or binding directives.
As we have noted, the first period of the witness’ hospitalization was from July 26 to August 29 of 1966, which was prior to Ash-land’s acquisition of Payless and also prior to the alleged conspiracy. However, the second period of hospitalization from November 20, 1968, to December 21, 1968, fell within the period of the conspiracy which was alleged to have existed from at “at least as early as 1967 * * * and continuing thereafter until November 1974.”
The record discloses that the vice-president in question was admitted to the hospital on the first occasion because of work-related problems. Significantly, the 1966 records show that a “supervisor” at work brought him to the hospital, and that he believed that “people at work were plotting against him.” The official diagnosis indicated that his problems stemmed from his employment rather than being home-related. The 1968 records show that he was “manic depressed and admitted in psychotic state.” The records also state that he “still tends to push himself,” and contained observations that he was “delusional and hallucinatory with poor judgment and insight.” Although the 1968 records do not specifically state that this was a continuation of his work-related problems, the jury might reasonably have drawn such an inference had the contents of the records been disclosed to them during the cross-examination of the witness. The official record incident to the 1968 visit state the1 final diagnosis as “Schizophrenic Reaction, Schizo-affective Type.” On that occasion the “mental status examination” reflected that the patient was manic in behavior and quite talkative, and that he spoke of his experience with God.
It occurs to us that the hospital records should have indicated to the district court that the witness’ hospitalization in 1966 was work-related and that'it was quite probable that his 1968 illness was of a similar nature. The records should also have indicated to the court that the witness’ judgment during both periods of illness was seriously impaired, and that a jury could have concluded that his ability to make rational observations was highly questionable. The records would further indicate that the patient had not fully recovered when he was discharged from the hospital in 1968 since they point out that his condition required further psychiatric treatment and continued medication.
Bearing in mind that the case against Ashland was based upon its alleged direct control over the retail operations of its subsidiaries, including Payless, it is clear that the testimony of the former vice-president was vital to the Government’s case. Ash-land had acquired control of Payless in 1967 and the witness testified that “Ashland, from the time that they acquired the company [Payless] until the time that I left, assumed gradually more and more control.” At another point, in testifying concerning Ashland’s control of prices of Payless the witness stated “this was a growing thing that started in 1968, when Ashland bought it and extended up until at the end, when they were saying what and where and how to price, not just because of the shortage of gasoline, but because they were taking direct control from Ashland’s offices in Ash-land, Kentucky.” It should be noted that during at least a part of this period in 1968 about which the witness testified, he was experiencing acute mental problems with a hospital record which disclosed that he was “delusional and hallucinatory with poor judgment and insight,” and was “secluded for his own welfare.” Despite this fact, the court forbade Ashland from reviewing the hospital records or putting them to any effective use in the cross-examination of the witness.
Even if it is fair to assume that the hospital records had no direct bearing upon the witness’ mental capacity at the time he testified, they were unquestionably relevant in regard to his perception of the events involving his work at Payless during the time of his unfortunate illness, and had a significant bearing upon his ability to testify at trial concerning his recollection of those events. United States v. Partin, 493 F.2d 750 (5 Cir. 1974), is the leading case in this field, and is quite similar to the case before us. In that case, one Rogers was a key government witness, just as the former vice-president was here. Rogers had been admitted to a Veterans Administration Hospital for treatment for mental illness. The hospital record revealed that Rogers had stated he was having auditory hallucinations and at times he thought he was some other person. The trial court rejected the admission of the hospital record either as a predicate for cross-examination or as a basis upon which another psychiatrist could have given an opinion as to the mental state of the witness Rogers as that may have had an effect on Rogers’ ability to see and hear accurately during the period in which the events occurred about which he was testifying.
The court of appeals reversed the conviction because of the trial court’s error in failing to admit the hospital records, reasoning at page 762:
“It is just as reasonable that a jury be informed of a witness’ mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing. It all goes to the ability to comprehend, know, and correctly relate the truth.”
And again on page 763 appears the following:
“Partin [the defendant] had the right to attempt to challenge Rogers’ credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which he was attempting to testify.”
To the same effect are United States v. Hiss, 88 F.Supp. 559 (S.D.N.Y.1950), and statements in United States v. Honneus, 508 F.2d 566, 573 (1 Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975); Sinclair v. Turner, 447 F.2d 1158, 1163 (10 Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); Ramseyer v. General Motors Corp., 417 F.2d 859, 863 (8 Cir. 1969); United States v. Allegretti, 340 F.2d 254, 257 (7 Cir. 1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965).
In United States v. Figurski, 545 F.2d 389 (4 Cir. 1976), we had occasion to determine whether the contents of a protected report about a key prosecution witness should have been disclosed to defense counsel, and stated:
“If the report contains only material impeaching the witness, disclosure is required only when there is a reasonable likelihood of affecting the trier of the fact. Whether there is such a likelihood depends upon a number of factors such as the importance of the witness to the government’s case, the extent to which the witness has already been impeached, and the significance of the new impeaching material on the witness’ credibility.”
Id., at 391-92. As discussed above, the former vice-president of Payless was the key government witness. Although the defense presented the testimony of two witnesses that contradicted his testimony regarding Ashland’s control over its subsidiaries, the ability of defense counsel to impeach him regarding his ability to properly perceive events about which he testified was severely limited by counsel’s inability to examine the hospital records. We can think of no more relevant or significant material than a hospital record indicating that a witness who is testifying against his former employer had been under treatment for mental illness which rendered him at that time delusional and hallucinatory with poor judgment and insight. Although a trial court should seek to prevent the disclosure of embarrassing, irrelevant information concerning a witness, it is an abuse of discretion to preclude defense counsel from obtaining relevant information, and the witness’ privacy must yield to the paramount right of the defense to cross-examine effectively the witness in a criminal case. See Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111-1112, 39 L.Ed.2d 347 (1974).
Upon careful consideration, we are of the opinion that the action of the district court in denying Ashland access to the hospital records for its use in cross-examination of the former vice-president was so prejudicial that Ashland is entitled to reversal and a new trial.
VII
With the exception of Ashland, we affirm the convictions of the other corporate appellants. We think, however, that assurances of immunity given to Robert Cavin during the grand jury’s investigation and upon which he relied require that his conviction be set aside.
The grand jury investigation was initiated about November 18, 1974, under the direction of Rodney A. Thorson of the Antitrust Division of the Department of Justice. On December 23, 1974, Cavin and Richard Reynolds, a fellow employee of SIGMA, were subpoenaed to testify before the grand jury and were jointly notified that they should appear in Baltimore on January 7, 1975. Reynolds and Cavin immediately contacted David A. Donohoe, who also represented SIGMA, and arranged to meet with him on January 2, 1975. Donohoe then called Thorson and inquired whether either Cavin or Reynolds were targets of the grand jury investigation. According to Donohoe, Thorson told him “not to worry” because Thorson “was obtaining immunity orders for both Mr. Cavin and Mr. Reynolds and that both would be testifying under a grant of immunity.” Based upon Thorson’s representation Donohoe concluded that he should suggest to Cavin and Reynolds that they obtain other counsel. In Thorson’s recollection of the conversation with Dono-hoe, he denied making any “promise” that Cavin and Reynolds would receive immunity but recalled stating that he would obtain immunity orders for both if they intended to claim the Fifth Amendment. Thorson also acknowledged that he had requested immunity authorization for both witnesses at about the time he issued subpoenas for their appearance. Thorson also discussed with Donohoe his possible conflict of interest since he was counsel for SIGMA and suggested that Donohoe secure other counsel for Cavin and Reynolds.
At their meeting on January 2, 1975, Do-nohoe told Cavin and Reynolds of Thorson’s assurance that they were to receive immunity, and advised them to obtain other counsel in order to avoid any possible conflict of interest. After some discussion, Do-nohoe recommended that Cavin and Reynolds consider retaining Donald T. Bucklin. Bucklin met with Cavin and Reynolds at Donohoe’s office on that same day and was retained by them. Donohoe repeated to Bucklin the representations concerning immunity that Thorson had made to him. In the light of this information Bucklin discussed with Cavin and Reynolds their rights under a grant of immunity and they were specifically advised of the importance of testifying fully and honestly in order to obtain the maximum protection under 18 U.S.C. § 6001, et seq.
Shortly after the start of a joint briefing session with Cavin and Reynolds on the afternoon of January 2nd, Bucklin called Thorson to advise him of his representation of the two witnesses and to set up a meeting on January 3rd. During this conversation Thorson confirmed the assurance that both Cavin and Reynolds would receive immunity, and was advised by Bucklin that based upon this assurance he perceived no conflict in his joint representation. Thor-son agreed that no conflict existed. While Thorson later denied discussing the question of conflict with Bucklin, he did acknowledge that he had repeated his earlier assurance that he would obtain immunity orders if the witnesses intended to claim the Fifth Amendment. On this point Thorson testified before the district court as follows:
THE COURT: Did you state that he would get immunity; he would testify pursuant to an immunity order?
MR. THORSON: Yes; yes, I did state that.
THE COURT: Can you restate that to me to the best of your recollection as to when it occurred and what was said and to whom.
MR. THORSON: I stated that initially in the telephone conversation preceding the January 3rd meeting in the context that if it is their intention to claim the Fifth Amendment I will obtain an immunity order. And I explained, expressly, that I had no intentions of having the Government go to the expense of having these people come to Baltimore from St. Louis, and then claim the Fifth Amendment and then I’d send them home. That’s why I wanted to know what their intention was, and I did not find that out until the meeting on Friday. [January 3],
(App.Vol. 18, at 15,225 and 15,226.)
During the initial joint interview with Bucklin on January 3rd Cavin and Reynolds refreshed each others recollections, supplemented their respective comments and responses, and corrected each others memory of events, dates and names of people with respect to incriminating evidence. On January 3,1975, Donohoe and Bucklin, together with another attorney, met with Thorson and other prosecutors in the Department of Justice. At this meeting Thorson agreed to obtain immunity orders prior to the grand jury appearances of Cavin and Reynolds based upon the representations that both witnesses would claim their Fifth Amendment privilege.
Subsequent to the meeting on January 3rd, a conflict developed in Bucklin’s schedule for January 7th, and Terry F. Lenzner was brought into the ease to represent Ca-vin and Reynolds. On January 6th Thorson called Lenzner and advised him that the appearance of the two witnesses was postponed until January 8th. During that conversation Thorson again confirmed that both witnesses would receive immunity, and it was agreed that the attorneys would meet on the morning of January 8th and proceed to the supervisory judge’s chambers for the signing of the immunity orders. At about 7:30 p. m. on that evening Thorson called Lenzner at his home and advised him that the subpoena for Cavin was being can-celled. The reason given by Thorson for the cancellation was a scheduling problem and Lenzner was told that he would be advised if and when Cavin’s appearance was rescheduled.
Under date of January 7, 1975, Lenzner advised Thorson by letter that his representation of Cavin and Reynolds was based upon Thorson’s assurance that both individuals were to testify under a grant of immunity on the same day, and that because of a possible conflict of interest resulting from the cancellation of Cavin’s subpoena, Lenz-ner was withdrawing from further representation of Cavin. Lenzner was unable to advise Cavin of these developments since both Cavin and Reynolds were en route to Washington. Cavin expressed some concern about the postponement but was assured by Lenzner that Thorson had indicated it was due only to a scheduling problem.
At the grand jury session on January 8th Thorson commenced his examination of Reynolds concerning SIGMA documents without an immunity order, whereupon Reynolds refused to answer “on the grounds that it violates the agreement between the Government and my counsel that I would be questioned only after receiving immunity and that I would be granted immunity today before testifying.” Thorson then called upon Donohoe to produce someone to identify the SIGMA records, and the following exchange took place:
MR. THORSON: Well, do I understand that you, as counsel for SIGMA are refusing on behalf of SIGMA to produce someone—
MR. DONOHOE: No, I’m not.
MR. THORSON: —from that association to come here and testify, take an oath and testify as to the document production?
MR. DONOHOE: I think you know perfectly well what I’m saying. I brought two people to this City pursuant to subpoenas that you had directed, so I had two people who could have testified with respect to these documents, but because the commitments that you had made to these two individuals have not been kept, I’m no longer able to go get a third or fourth or fifth person. That’s a situation which is not of my making.
MR. THORSON: Do I understand that you are refusing at this juncture to provide a person to make that production?
MR. DONOHOE: All I’m saying is that there are two people that have — that I have brought that are capable to do that, but I’m willing to assure you that it won’t do you any good because you failed to keep your commitment to obtain a proper order from the Court. You can take Mr. Reynolds or Mr. Cavin in here, but it’s not going to do any good.
MR. THORSON: Mr. Donohoe, I think you can take SIGMA’s documents with you now and would you so instruct, if he is your client, would you instruct Mr. Reynolds to appear before the Grand Jury now?
(App.Yoi. 8, at M86 and M87.)
Reynolds was formally granted immunity later that day and testified before the grand jury. In his affidavit, Reynolds stated that during his grand jury appearances he was questioned and testified about matters he had earlier discussed with Cavin and that his testimony, at least
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Alice J. PAVELKA, Plaintiff-Appellant, v. Susan R. CARTER; Montgomery County, Maryland, Defendants-Appellees.
No. 92-1887.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 4, 1993.
Decided June 9, 1993.
James Berkley Carson, Carson & Jones-Bateman, Baltimore, MD, argued (John B. Jones-Bateman, on brief), for plaintiff-appellant.
Patricia P. Hines, Associate County Atty., Rockville, MD, argued (Joyce R. Stern, County Atty., Joann Robertson, Sr. Asst. County Atty., on brief), for defendants-appel-lees.
Before ERVIN, Chief Judge, and HALL and PHILLIPS, Circuit Judges.
OPINION
PHILLIPS, Circuit Judge:
Alice Pavelka appeals from a grant of partial summary judgment against her and the dismissal of the remainder of her automobile negligence action against Susan Carter and Montgomery County, Maryland for lack of sufficient amount in controversy to maintain diversity jurisdiction. Because the district court erred in holding that governmental immunity barred recovery against the defendants of amounts in excess of $30,000, we reverse.
I
The material facts, viewed in the light most favorable to the nonmovant Pavelka on this appeal from summary judgment against her, are few. On May 5, 1989, Pavelka’s car was struck from behind by a ear which had itself been struck by a bus owned by appellee Montgomery County, Maryland. The bus was being operated within the County by the appellee Carter, an employee of its Ride-On bus service.
On September 9, 1991, Pavelka, a citizen and resident of Virginia, brought a diversity action in the District of Maryland against the County, a governmental unit of the State of Maryland, and Carter, a Maryland resident, seeking $200,000 in compensation for property damage and personal injuries. The defendants answered, then moved for partial summary judgment, interposing a statutory governmental immunity defense ostensibly limiting claims to $20,000 per injured party and $10,000 in total property damage. After Pavelka answered the motion, pressing a different interpretation of Maryland law on governmental immunity, and the defendants replied, the district court granted defendants the relief they sought. Because that relief limited Pavelka’s potential recovery to $30,-000, the district court then dismissed the cause for failure to meet the $50,000 amount in controversy requirement of diversity jurisdiction. See 28 U.S.C. § 1332.
Pavelka appealed.
II
This case presents a question of the degree to which the defendants enjoy governmental immunity in this negligence action for money damages and requires us to determine how best to. harmonize three aspects of Maryland law: the Maryland common law of local governmental immunity, Maryland Transp.Code Ann. § 17-107(c), and the Local Government Tort Claims Act (LGTCA), Maryland Cts. & Jud.Proc.Code Ann. § 5-401 et seq. In making that determination, we consider first the immunity of the County, then that of the bus driver Carter.
A
With respect to the County there are actually two questions. First, we ask whether it enjoyed governmental immunity with respect to Pavelka’s accident in the first place. After finding that it did, we then consider the extent to which it waived that immunity or otherwise obligated itself with respect to Pavelka’s claim.
1
Counties in Maryland have governmental immunity in negligence actions only when the activity concerning which suit is brought is a governmental and not a proprietary one. Maryland-Nat’l Capital Park and Planning Comm’n v. Kranz, 521 A.2d 729, 731 (Md.1987). Mayor of Baltimore v. State ex rel. Blueford, 173 Md. 267, 195 A. 571, 576 (1937), explains the difference between the two:
Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature.
The Maryland Court of Appeals recently has put it more simply:
Another way of expressing the test ... is whether the act performed is for the common good of all or for the special benefit or profit of the corporate entity.
Tadjer v. Montgomery County, 300 Md. 539, 479 A.2d 1321, 1325 (1984).
The heavily subsidized nature of the Ride-On service, see Joint Appendix at 68, makes clear that it exists for “the common good of all” and not for the special benefit or profit of the County as a corporate body. It is undoubtedly authorized by the legislature, 25A Maryland Ann.Code § 5A(a); Maryland Transp.Code Ann. § 10-207(a), and we take judicial notice that public transportation in general, and thus the Ride-On bus service in particular, benefits the public health and welfare in a variety of well established ways. Moreover, it has no obvious element of private interest. Given the breadth of governmental activities recognized by the Maryland courts, see, e.g., Burns v. Mayor of Rockville, 71 Md.App. 293, 525 A.2d 255, 262 (1987) (civic ballet); Austin v. Mayor of Baltimore, 286 Md. 51, 405 A.2d 255, 263 (1979) (children’s day camp); see also Town of Brunswick v. Hyatt, 91 Md.App. 555, 605 A.2d 620, 625 (1992) (finding municipal pool a governmental activity even though it made a profit), there is no doubt that municipal bus service qualifies for similar treatment. Governmental immunity therefore applies, and Pavelka can recover damages from the County only to the extent it has waived that immunity. We therefore turn to that issue.
2
The County concedes that Maryland Transp.Code Ann. § 17-107(c) waives any governmental immunity that it otherwise might assert with respect to the security that state law requires all vehicle owners or lessees, including governmental ones, to post. That security is $20,000 per person per accident ($40,000 total) and $10,000 in total property damage. Maryland Transp.Code Ann. § 17 — 103(b). The County argues, however, that § 17-107(c) is the only waiver of its liability applicable in this case, making partial summary judgment for it on all liability over and above that required security and the resulting dismissal for lack of subject matter jurisdiction proper.
Pavelka, on the other hand, contends that the Local Government Tort Claims Act, Maryland Cts. & Jud.Proc.Code Ann. § 5-401 et seq., operates concurrently with § 17-107 and, where its notice requirements are met, see § 5-404, makes a more substantial waiver of the County’s immunity. Since she undoubtedly complied with those notice provisions, Pavelka contends, she should be permitted to recover from the County the full $200,000 the LGTCA permits. See § 5-403(a). This argument relies heavily on Maryland v. Harris, 327 Md. 32, 607 A.2d 552 (1992), which implied that the Maryland Tort Claims Act (MTCA), Maryland State Gov’t Code Ann. §§ 101 to 12-110, creates a more expansive waiver of immunity distinct from that provided by § 17-107 in those situations where it applies. Harris, 607 A.2d at 556-57.
But the MTCA actually waives the state’s sovereign immunity in such negligence cases if its notice requirements are met. § 12-104(b); § 12 — 105(b). The LGTCA does not waive local governmental immunity when a local governmental entity is sued in its own capacity, Khawaja v. Mayor of Rockville, 89 Md.App. 314, 598 A.2d 489, 494 & n. 6 (1991), cert. granted, 325 Md. 551, 601 A.2d 1114 (1992), so the logic of Harris is inapplicable. The County’s direct liability for Pavelka’s accident is thus limited to that provided by § 17-107.
The LGTCA does have a function, however, and that function is to protect local government employees from suits and judgments on alleged torts committed by them within the scope of their employment, in order to maintain their incentive to perform to the best of their abilities. Ennis v. Crenca, 322 Md. 285, 587 A.2d 485, 488 (1991). To that end, it obligates local governments to defend their employees for job-related tort claims. § 5-402(a). It also bars direct execution of judgments against those employees, absent proof of actual malice, and forces successful plaintiffs to execute their judgments against the local government employers instead. §§ 5 — 402(b), 5-403(b). The employers are expressly obligated to pay these judgments, § 5 — 403(b), but their obligations are not without limit: liability on an individual claim is limited to $200,000, § 5-403(a), punitive damages cannot be recovered, § 5-403(c), and the employer may raise any defenses or immunities held by the employee, even where those defenses or immunities could not have been vicariously asserted by the employer to bar respondeat superior liability at common law. Compare § 5-403(d)-(e) with the Maryland common law rule discussed in James v. Prince George’s County, 288 Md. 315, 418 A.2d 1173, 1182-83 (1980), superseded by statute as stated in Prince George’s County v. Fitzhugh, 308 Md. 384, 519 A.2d 1285 (1987).
The County doesn’t debate the existence of this obligation to fund judgments against its employees imposed by the LGTCA, but pins its hopes instead on the claim that its bus driver Carter is herself immune from suit, hence not subject to a liability which would trigger its obligation. We therefore turn next to that.
B
The district court found Pavelka’s claim against Carter barred by § 17-107(c), but we disagree, for the reasons expressed below.
Governmental immunity from negligence torts in Maryland extends beyond the governmental entity itself to protect “public officials” exercising discretionary functions. James, 418 A.2d at 1178. It does not, however, extend to “mere government employee[s] or agent[s]” performing ministerial functions like Carter, a city bus driver. Id.
On appeal, Carter does not in fact contend that driving a bus was a discretionary function or that she was a public official. Indeed, she ignores this line of cases altogether and argues that notwithstanding any general rules applicable to employee liability, fidelity to the purpose of § 17-107 requires that she be absolved of potential liability in excess of the security required by the Transportation article. She also argues that the claim against her is barred by the doctrine of respondeat superior.
Both these arguments are mistaken. Perhaps recognizing that § 17-107(c), by its terms, does not apply to her, Carter rests her argument that it nonetheless bars action against her primarily on policy grounds. Failing to read § 17-107(c) to bar suit against her would generate an absurd result, she says, because Pavelka could then evade what appellees contend is a cap on the County’s liability imposed by § 17-107 by seeking up to $200,000 from Carter under the LGTCA, which the County would then be required to pay. The result is only absurd, however, if § 17-107(c) is indeed a cap on the County’s direct and indirect liability to Pavel-ka.
We don’t believe it is. Section 17-107(c) is part of the title requiring most vehicle owners to carry minimal insurance coverage. Md.Transp.Code Ann. § 17-101 et seq. Its caption reads “Prohibitions,” and the section bars two things. First, it forbids drivers to drive cars they know are uninsured and owners to permit their uninsured vehicles to be driven. § 17-107(a). Second, it provides
Defense of Sovereign Immunity. — An owner or lessee of any motor vehicle registered under Title 13 of this article may not raise the defense of sovereign or governmental immunity, to the extent of benefits provided by the security accepted by the Administration under § 17-103 of this subtitle, in any judicial proceeding in which the plaintiff claims that personal injury, property damage, or death was caused by the negligent use of the motor vehicle while in government service or performing a task of benefit to the government.
§ 17 — 107(c). As we read this latter provision, it merely prevents Maryland’s governmental entities from interposing the governmental or sovereign immunity they might otherwise enjoy to frustrate otherwise proper recovery against the mandatory security all vehicle operators (including governmental ones) must post. To the extent of that security, then, it puts governmental vehicle owners or lessees in the same position as private owners or lessees. And by its terms, at least, it says nothing whatsoever about the liability of vehicle operators like Carter.
As we noted at the outset, this dispute requires accommodation of two statutes and a common law doctrine. It seems to us that this accommodation is relatively straightforward. The doctrine of governmental immunity reflects the public’s interest in not paying tort judgments with public funds for torts arising out of the performance of governmental functions for the benefit of all. The Maryland legislature, however, has recognized that other policy considerations trump this one in certain cases. One such case is that of providing minimal recovery for vehicular accidents, where the legislature has privileged, to a limited extent, citizens’ interest in securing compensation for injuries negligently inflicted upon them. That policy is embodied in Maryland Transp.Code Ann. § 17-101 et seq. The other case of relevance here is that of protecting ordinary local government employees, who enjoy no common law immunity from liability for their negligent but good faith acts in the scope of employment, from tort suits which might discourage vigorous prosecution of their duties. Maryland could, of course, have furthered this goal at the expense of tort victims by simply extending governmental immunity to those tortfeasors, but it chose not to do it that way, presumably because the traditional tort system goals of compensating victims and deterring misconduct remained important. Instead, it simply shifted the cost of employee negligence in such cases to a party better able to pay, their local government employer, compromising in the process the public interest described above in keeping tort victims out of the public purse. This is the policy reflected in the LGTCA. With that framework in mind, we see no reason why the policy considerations which undoubtedly led to the enactment of § 17-107 should lead us to provide Carter (and thus, indirectly, the County) with a cloak of. immunity similarly situated parties have never enjoyed in Maryland.
This brings us to the appellees’ more direct assertion of the same logic, their apparent contention that the doctrine of respondeat superior also bars Pavelka’s claim. It is true, as Carter and the County argue, that this doctrine imputes the negligence of the servant to the master and makes the latter liable for the torts of the former. Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 506 A.2d 224, 226 (1986). But that liability is joint and several; the servant is not relieved. See Chilcote v. Von Der Ahe Van Lines, 300 Md. 106, 476 A.2d 204, 208 (1984). Moreover, the doctrine is one of vicarious liability, not vicarious immunity, so any immunity the County may enjoy does not, absent the operation of some other principle of law, protect Carter. No other such principle has been suggested.
Carter therefore is potentially liable for her negligence just like any other civil defendant. Unlike most civil defendants, however, she enjoys the protection of the LGTCA, which bars Pavelka from actually executing any judgment obtained against Carter and forces her to execute instead against the County, which is then obligated to satisfy Pavelka’s adjudicated claim against Carter in an amount up to $200,000.
Ill
Because Carter is liable in damages for any negligence on her part which proximately caused Pavelka’s injury, and because the LGTCA obligates Pavelka to execute any judgment obtained on that claim against the County rather than Carter herself and also obligates the County to satisfy it up to $200,-000, partial summary judgment for Carter and the County on amounts over § 17-103’s statutory security requirements was inappropriate, as was dismissal for lack of subject matter jurisdiction. The judgment of the district court is therefore reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
. The parties refer to § 17 — 107(b), but the relevant provision was apparently redesignated § 17 — 107(c) effective July 1, 1988, before Pavel-ka’s 1989 accident. 1988 Md.Laws 787. Since her accident, it’s been amended again, 1990 Md. Laws 546, § 3, but that amendment has no effect on this appeal, so the text is presented as it was in effect at the time of the accident.
. The County argues that we need not reach the governmental/proprietary function inquiry at all, since (it argues) waiver of governmental immunity turns exclusively on whether the conditions of § 17-107 of the Md.Transp.Code Ann. are met. This is incorrect. The governmental/proprietary function question is logically antecedent to the waiver inquiry, since it determines whether counties have tort immunity at all under Maryland law, Kranz, 521 A.2d at 731, not whether they’ve waived it.
. The only case cited by Pavelka finding a particular activity not to be governmental in nature is Higgins v. City of Rockville, 86 Md.App. 670, 587 A.2d 1168, cert. denied, 323 Md. 309, 593 A.2d 669 (1991). There the court found that maintenance of a state-owned driveway was a proprietary function, but its holding was based on stare decisis, not policy, and was strictly limited to liability for negligent maintenance of streets, sidewalks, footways, and adjacent areas. Id. at 1173 (noting that "[t]he exemption of this particular function from the benefits of governmental immunity, logical or illogical, seems destined to remain with us for the foreseeable future." (footnote omitted)). That anomaly is not relevant here.
. The MTCA concerns state sovereign immunity; the LGTCA addresses the more limited doctrine of local government immunity.
. The Court of Appeals’ writ of certiorari did not specify which questions presented by petitioner it would address. • One of those question's could be read to raise the issue whether the LGTCA does in fact constitute an independent waiver of governmental immunity, but that is not now the law of Maryland.
. Until the enactment of the LGTCA, the public generally had not been deemed to have an interest in insulating local government employees from the consequences of their negligence.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_usc1sect
|
201
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
CREEL et al. v. LONE STAR DEFENSE CORPORATION.
No. 12182.
United States Court of Appeals Fifth Circuit.
Jan. 18, 1949.
Rehearing Denied Feb. 7, 1949.
C. M. Kennedy, of Texarkana, Tex., Wayne W. Owen, of Little Rock, Ark., and Pat Coon, of Dallas, Tex., for appellants.
Fred K. Newberry, C. B. Wheel-er and Otto Atcídey, all of Texarkana, Tex., for appellee.
Before HOLMES, WALLER, and LEE, Circuit Judges.
HOLMES, Circuit Judge.
This suit was brought by appellants against appellee to recover overtime compensation, liquidated damages, and reasonable attorney’s fees, under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. In the court below, after issue was joined on the pleadings, the defendant filed a motion for summary judgment, with supporting affidavits; and a hearing was duly had on the pleadings, affidavits, and oral statements of counsel, to determine what-material facts existed without material controversy and those in good faith controverted. The question on this appeal is whether the uncontradicted facts before the court were sufficient to warrant the inference of fact that appellee was not an independent contractor engaged in commerce.
In the light of the Supreme Court’s decisions on the subject, we deem it necessary to write scarcely more than a statement of the uncontradicted facts before the court at the hearing of the appellee’s motion for a summary judgment. This motion was submitted upon affidavits filed by the appellee. Each affiant had personal knowledge of the facts sworn to by him, and was able to give competent testimony of the truth thereof. No opposing affidavits were filed by appellants, and no testimony offered in contradiction of the facts set forth in appellee’s affidavits. The court interrogated counsel at some length as to what were the genuine issues presented for decision. There were many other pleadings, such as motions to amend, motions to dismiss, motions for bills of particulars and for production of documents, and also a response to the motion for summary judgment; all of which show the value of the pretrial-hearing and the summary-judgment procedure; but when the sifting process was completed, it was found that there was absolutely no real controversy between the parties as to any specific fact. The uncontradicted facts were as follows:
During World War II, the appellee’s plant was an ordnance facility owned and operated by the United States for the production of munitions to be used in the prosecution of the war. The appellee was retained, and paid a fixed fee, to manage the operation of the plant. The Government paid all expenses of operation, including the cost of all labor and material. The premises upon which the appellants were employed, the tools furnished them by appellee, and the property with which they dealt in such employment, were in their entirety the property of the United States. The title to all parts, explosives, .and materials, except an inconsequential amount, was vested in the Government at the point of shipment, subject to army inspection upon arrival at the plant.
The appellee did not ship any finished ammunition from the plant; all such shipments were made by the Ordnance Department on government bills of lading. The appellee at no time had title to the finished products of the plant, or of the component parts of such products, the title thereto at all times being in the United States. The latter furnished and shipped to the appellee ninety to ninety-five per cent of all material and equipment used in operating the plant; the remainder was purchased for the United States by the appellee. A Commanding Officer, appointed by the Chief of Ordnance, was on duty at all times relevant hereto.
The contract in this case provided that the appellee was operating the plant as a Government agency; that changes might be made in the contract by the Government but such changes should not excuse the appellee from proceeding with the prosecution of the work as changed; that the Government should prescribe procedures to be followed by the contractor in accounting, checking, and auditing functions, and that if in the opinion of the Contracting Officer the number of employees engaged in checking, auditing, and accounting work, was excessive, the appellee should make such reductions in force as the Contracting Officer deemed necessary; that the contractor should at all times use its best efforts in all acts thereunder to protect and subserve the interest of the Government. The appellee paid wages and salaries of employees by checking against a bank account, the funds of which were furnished by the Government and were subject to withdrawal by the Government.
By a change in the contract, the Government was given the right to pay directly to the persons concerned all sums due from the contractor for labor, material, or other charges; by order dated October 12, 1943, the appellee was ordered to rework and renovate certain ammunition, which provision was reaffirmed and incorporated in a supplement to the contract; by order dated April 3, 1944, the terms of which were included in a supplement to the contract, it was provided that appellee should, as directed from time to time by the Contracting Officer, receive, inspect, assort, screen, segregate, load, renovate, recondition, and rehabilitate, any ammunition (including components and containers), even though it was not specifically mentioned in the contract, regardless of its origin, in such quantities as might be directed by the Contracting Officer.
When we compare the record that was before this court in Kennedy v. Silas Mason Co., 5 Cir., 164 F.2d 1016, with the record in the case at bar, we find many material facts that were not in the former record, which show that this appellee was not an independent contractor but an agency of the Government. Among these additional facts are the following:
The Government paid the freight on materials shipped to the plant. A Government officer was maintained at the plant who was accountable for all property used in connection with appellee’s contract. The Government contracted for electric power, gas, telephone, telegraph, and teletype service at the plant, and paid such bills directly ; the appellee acted as Government agent for the purpose of causing official-business messages to be transmitted; the Government approved all wage and salary rates, and required that no key employees or their principal assistants be hired until there had been submitted and approved by the Contracting Officer a statement of the previous salary, proposed salary, qualifications, and experience, of the persons selected for such assignments; and all munitions processed at the plant were processed under direct Government supervision and control; the Government specified the loading process to be used, directed the type and quantity of munitions, the specifications thereof, and the rate of production; inspections were made by the Government during the various steps of theii processing; detailed rules and regulations covering methods of production were promulgated by the Government; and appellee was required to comply with such rules and regulations; federal officers and employees were in attendance to report as to compliance. Appellee had no discretion as to the type of ammunition, the quantity thereof, or the method of process used in its manufacture, and produced no munitions except as required by the Government. On different occasions, the Government transferred production schedule? from other ordnance plants to appellee for completion, and in such cases, if the original plant had made contracts for materials and supplies on account of such schedules, the appellee was required to take over such supply contracts and pay the vendors thereof from funds supplied to appellee by the Government. Appellee was not penalized if the materials processed at the plant did not’ meet specifications and could not be used. No sales tax was paid by appellee on materials purchased for use at the plant, nor were ad valorem taxes on real or personal property paid to the state or county, and no license or registration fees were paid on motor vehicles used in connection with the operation of the plant.
From the above uncontradicted facts, the court below inferred and found that the appellee was not engaged in the production of goods for commerce, and that the goods in question were munitions of war manufactured by the United States for the purpose of being used by it in the prosecution of the war; and accordingly, as a matter of law, the court entered summary judgment, from which this appeal was taken.
The Supreme Court, in Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, does not condemn the summary judgment procedure if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. There is a large number of these claims, all arising out of a common state of facts and depending for decision upon the same principles of law. The judicial process may break down under the load if the courts fail to use the new methods of procedure provided by the Federal Rules of Civil Procedure, 28 U.S.C.A. While it is true that the appellants here denied generally the facts relied on by appellee for a summary judgment, such denial specified no controverted fact that would be admissible in evidence upon a trial on the merits. Rule 56(e) provides the form of supporting and opposing affidavits in the summary-judgment procedure, and requires that the affidavits shall set-forth such facts as would be admissible in evidence; moreover, the affidavits must show affirmatively that the affiant is competent to testify to the matters therein stated. On motion under this rule, paragraph (d) requires the trial court to ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually in good faith controverted. The court shall thereupon, the rule says, make an order specifying the facts that appear without substantial controversy; and, upon the trial, the facts so specified shall be deemed established.
Paragraphs II and V(D), set out below in full, contain (so far as applicable here) appellee’s response to the motion for a summary judgment. The averments do not meet the requirements for affidavits under Rule 56(e). No witness would be permitted to testify that the appellee operated as an independent contractor and was engaged in the production of goods for commerce, which are the ultimate facts in issue. Those allegations in the pleadings were sufficient to sustain the complaint upon a motion to dismiss for failure to state a claim upon which relief could be granted; but in response to a motion for summary judgment, such allegations at best were only a part of the pleadings to be examined by the court under Rule 56(d) of the Federal Rules of Civil Procedure. They presented issues of fact to be determined by the trial court, at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel. The court below did this, and found as a fact that the appellee was not engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act, and that the United States was not only the actual producer but the ultimate consumer of the goods in question. These findings were deduced from the uncontroverted facts; and, if judgment had not been rendered upon the whole case, an order specifying the facts that appeared without substantial controversy would have been required by Rule 56(d); but, since it appeared from the pleadings, affidavits, and statements of counsel, that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law, the court was required to enter judgment forthwith under subdivision (c) of said rule.
The question before us is not whether the trial court, upon the uncontroverted facts, reasonably might have found that the appellant was operating as an independent contractor in the production of goods for commerce, but whether a fair and impartial tribunal reasonably could have inferred from the uncontroverted facts that the United States was producing munitions for its own use in war, and that the appellee was acting merely as a government agency.
.There is no hard-and-fast rule for determining who are independent contractors, but generally the term signifies one who contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and discharge the workmen independently of such employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as it progresses. Ordinarily the question is one of fact, and each 'case depends on its own facts, no one feature of the relation being determinative, but all being considered together.
With these elementary principles in mind, and without needless repetition, let us summarize the uncontradicted facts upon which the court below based its inference that appellant was not an inde-, pendent contractor, engaged in commerce within the meaning of the Fair Labor Standards Act. Such facts are as follows:
The Army and Navy Departments were responsible for the operation of nearly one hundred government-owned giant munition plants, which were the backbone of -the nation’s armament program. In order fully to utilize the nation’s resources and to minimize encroachments upon its industrial structure, the two departments chose to operate these plants through the agency of selected commercial contractors. All of these plants were owned outright by the United States, and all but a few were located upon military reservations. All were engaged solely in war production, the work performed being of a secret, hazardous, and confidential nature.
The normal profit-making factors were lacking in the arrangement between the Government and appellee in this case. The contractor furnished only its managerial ability, qualities, and services, for which it was paid a fixed fee unaffected by risks of financial loss. The Government retained the right to dismiss any employee at the plant whom it deemed incompetent, or whose retention was deemed by it to be not in the public interest; it approved all wage and salary rates; inspected vigilantly the various processes of production, and required compliance with its detailed specifications that covered every phase of the operation. The Government owned the reservation, owned the plant, tools, working material, and the component parts from which the munitions-were made or assembled; it took title at the point of origin to all goods and materials used in the operations, shipping them to the plant-site under government bills of lading.
The appellee was required to comply with detailed rules and regulations, and no key employees or their assistants- were permitted to be hired or assigned to service until there had been submitted and approved by the Contracting Officer a statement of the previous salary, proposed salary, qualifications, and experience of the persons selected for such assignments. In a word, all munitions processed at the plant were under the direct supervision and control of the Government, with no discretion given the contractor to produce munitions except as required by Government direction. Add to these established facts the self-evident one that the United States is not engaged in commerce in making munitions to be used by it in waging war, and we have a solid and sufficient basis from which to draw the fair and reasonable inference that the appellee was not an independent contractor and not engaged in commerce within the meaning of the Fair Labor Standards Act.
Other defenses, such as payment and statutes of limitation, are presented by the pleadings, but it is unnecessary to discuss them, because wherever we turn in this case we are confronted with the ultimate fact, established by the finding of the court below, that appellee was not an independent contractor. To ignore this fact would be to disregard Rule 56, which was promulgated by the Supreme Court. A reasonable inference fairly deduced from an uncontroverted fact or number of facts may establish the existence of an ultimate fact that entitles one of the parties to judgment as a matter of law.. When this happens, as it did in this case, and summary judgment is sought, Rule ’56(c) requires that “judgment * * * shall be rendered forthwith.”
On the other hand, if the judgment were reversed and the cause remanded, the trial court would be required to proceed under Rule 56(d), by specifying the facts that appeared without substantial controversy; and we know what those facts are from the opinion in this record. Under Rule 52, as amended, findings of fact and conclusions of law are unnecessary on decisions of motions for summary judgment, but under Rule 56(d) the court is required to make an order specifying the facts that appear to be without substantial controversy. Rule 52(a) provides that if an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Thus the court’s opinion in this case, while not required under Rule 52(a), might serve the requirements of Rule 56(d), the provisions of which could not be avoided upon another trial. The intention of this rule is to put an end to useless and expensive litigation if there is no geniune issue as to any material fact.
The judgment appealed from is
Affirmed.
Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031; Murpliey v. Reed, 335 U.S. 866, 69 S.Ct. 105.
Paragraph II. “Plaintiffs state that the defendant is engaged in the production of goods for commerce and in acts necessary for the production of goods for commerce at all times pertinent to the complainant filed herein within the meaning of the Fair Labor Standards Act.”
Paragraph V (D). “That the defendant throughout all times pertinent to this cause operated as an independent contractor upon a cost plus a fixed fee basis and by its contract with the Government of the United States specifically obligated itself to pay plaintiffs the money they seels under this Act.”
Rule 12(b) (6) of Federal Rules of Civil Procedure.
Rule 56(d) of Federal Rules of Civil Procedure.
Pages 93, 94, and 95 of the Transcript; but see Rule 52(a), as amended, which provides that findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 56, i. e., motions for summary judgments.
Rule 56(c) of Federal Rules of Civil Procedure.
42 Corpus Juris Secondum, pages 638 to 641.
See opinion of the court below, pp. 93, 94, and 95 of the record, which contains findings under Rule 52(a), as amended, sufficient to require the entry of an order under Rule 56(d) specifying the facts that “shall be deemed established” upon the trial.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
songer_othadmis
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Lyne Keith KILCREASE, Appellant, v. UNITED STATES of America, Appellee.
No. 71-1309.
United Stales Court of Appeals, Eighth Circuit.
March 28, 1972.
James T. Gleason, Omaha, Neb., for appellant.
R. C. Cougill, Asst. U. S. Atty., Richard A. Dier, U. S. Atty., for appellee.
Before MATTHES, Chief Judge, LAY, Circuit Judge, and HUNTER, District Judge.
Western District of Missouri, sitting by designation.
MATTHES, Chief Judge.
Appellant has appealed from the judgment of conviction entered on the jury’s verdict finding him guilty of knowingly possessing five unregistered firearms. Appellant claims on appeal that the district court committed three errors, to wit: (1) admission into evidence of a firearm obtained during an allegedly illegal search of his car; (2) admission of statements made by him to government agents and of firearms obtained by the government pursuant to these statements; and (3) rejection of his argument that § 5861(d) unconstitutionally abridges rights guaranteed him by the Fifth Amendment. We affirm the judgment of the district court.
I
Appellant was, early, in 1970, an Air Force master sergeant with eighteen years of service to his credit. He was stationed at Offutt Air Force Base, near Omaha, Nebraska. Agents in the Omaha office of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department received information on March 1, 1970, which indicated that appellant had an unregistered and illegally imported firearm in his automobile. Officers approached appellant the following morning as he alighted from his automobile, identified themselves, and asked permission to search the vehicle. The agents had no search warrant. No advice regarding constitutional rights was given at this time to appellant, but he consented to the search. The officers found the firearm inside the automobile.
Appellant next was taken to a government office, where, after being advised of his constitutional rights, he admitted possession of three additional unregistered firearms. Appellant voluntarily drove to his home, picked up the three weapons, and surrendered them to the questioning officers. Later on the same day, again in the Treasury Department office, appellant informed the agents that he had at his home a fifth unregistered firearm. This weapon, too, subsequently was surrendered voluntarily by appellant. Appellant admitted to officers on the following day, March 3, 1970, after renewed advice regarding his constitutional rights, that he had obtained all of the firearms while serving in the armed forces overseas. It is apparent from the trial transcript that appellant understood prior to his contact with the Treasury Department that the importation and possession of these weapons were illegal, and that appellant was troubled by his continuing possession of the weapons and was relieved when the weapons were taken by the government.
Appellant moved prior to trial for suppression of (1) the firearm discovered pursuant to the search of his automobile and (2) the statements made to the Treasury Department agents and the firearms obtained by the agents as a result of these statements. Objection to the admission of the first weapon was premised upon the agents’ failure to advise appellant that he need not consent to the warrantless search of his automobile. The basis of that part of the motion which sought to suppress appellant's statements and the remaining firearms was his contention, advanced at the hearing on the motion to suppress, that he had made the statements at the scene of the search without the benefit of advice concerning his constitutional rights. Treasury Department agents testifying at the hearing asserted that the statements had been made by appellant at their office, some time after the search and after appellant had been advised of his rights.
The district court denied the motion to suppress in all particulars. Appellant subsequently was convicted on all five counts of the indictment charging violations of 26 U.S.C. § 5861(d) and was sentenced to serve six months for each conviction. The district court designated the sentences to run concurrently, and placed appellant on probation.
II
We deal first with appellant’s contention that the search of his automobile was illegal, because he was not advised of his right to refuse to consent to the search, and thus that the firearm discovered during the search should have been suppressed. This argument is unpersuasive because appellant, as evidenced by his own testimony at the suppression hearing, was aware of his rights under the Constitution. Cf., Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. 1971), cert. granted, 405 U.S. 953, 92 S. Ct. 1168, 31 L.Ed.2d 230 (1972). It is well settled that “[t]he protection afforded by the Fourth Amendment . may, of course, be waived by a consent freely and intelligently given.” Drummond v. United States, 350 F.2d 983, 988 (8th Cir. 1965), cert. denied, Castaldi v. United States, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542 (1966). The evidence convinces us that appellant “freely and intelligently” consented to the search of his automobile and that he thereby waived his right to object to that search.
Appellant’s argument against the admissibility of his statements to Treasury Department agents, and the firearms obtained by the government as a result of those statements, also must be rejected. The district court, in ruling against appellant on this portion of the motion to suppress, necessarily resolved in the government’s favor the factual dispute regarding the location at which the controverted statements were made. We construe the finding to be that the statements were made at the Treasury Department office. Because appellant concedes that he was advised of his rights upon arrival at that office, he can only prevail in this portion of his appeal if we reverse the district court’s finding as to the place at which the statements were made. This we are not disposed to do. Factual findings made by the trial court in a criminal case must stand unless clearly erroneous, at least where such findings concern matters other than the ultimate question of guilt. Rule 52(a), F.R.Civ.P., 28 U.S.C.; Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); United States v. Tallman, 437 F.2d 1103, 1104-1105 (7th Cir. 1971); Drummond v. United States, supra, 350 F.2d at 988. It is clear from the record in this ease that the challenged finding was not so in error.
Even assuming, arguendo, that the firearm found in appellant’s automobile should have been suppressed for the reasons advanced by appellant, we would not be warranted in reversing his conviction.
It is conceded that appellant was advised of his rights at least prior to giving the statement regarding the final illegal weapon eventually recovered from his home. Thus the admission into evidence of this firearm and appellant’s statement regarding his possession of it are not challengeable, and appellant’s conviction on the count of his indictment which alleged possession of this weapon must be upheld.
The law is settled that reversal is not required if the conviction underlying any one of several concurrent sentences is valid and alone supports the sentence and judgment. Greene v. United States, 358 U.S. 326, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959); United States v. Bessesen, 433 F.2d 861 (8th Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1254, 28 L.Ed.2d 545 (1971).
We come finally to appellant’s contention that the Fifth Amendment guarantee of freedom from compulsory self-incrimination bars his prosecution under § 5861(d). Appellant points out that because he is neither an importer, manufacturer, dealer, nor transferor of firearms within the definitions of 26 U.S.C. § 5845(k-m), he was not required by 26 U.S.C. § 5841(b) to register the firearms for possession of which he was prosecuted. Further, he observes, because 26 U.S.C. § 5848(a) precludes the incriminating use of registration information only if it is “required to be submitted,” he is not protected by the latter section, and thus, had he registered the weapons, the registration information could have been used in a prosecution against him for violations of other sections of the Gun Control Act.
Appellant’s argument is not acceptable. The result would be different if appellant, by registering his firearms, could have abated the possibility of prosecution under § 5861(d). Had that been the case, appellant would have been confronted with the Hobson’s choice, proscribed by the Supreme Court in Mar-chetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), and related cases, of failing to register and thus subjecting himself to prosecution under the registration section, or of registering and thus supplying the government with information which would have incriminated him under other sections. But no such choice is available under the Act to one in possession of unregistered firearms: only manufacturers, dealers, and professional importers of firearms are capable of registration. 26 U.S.C. §§ 5841(b), 5845(k-m); United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). The act prohibited by section 5861(d) is not failure to register weapons, but rather it is possession of weapons which should have been, but were not, registered. Cf., United States v. Harrelson, 442 F.2d 290, 292 (8th Cir. 1971). We reiterate the following conclusion, drawn in Reed v. United States, 401 F.2d 756, 763 (8th Cir. 1968), cert. denied, 394 U.S. 1021, 89 S.Ct. 1637, 23 L.Ed.2d 48 (1969) :
“We do not believe the Supreme Court intended that its holding in Haynes should be applied to a situation where, as here, the defendant was under no statutory command to and did not in fact supply any self-incriminating information.”
See also United States v. Harflinger, 436 F.2d 928, 936-938 (8th Cir. 1970).
The judgment of the district court is affirmed.
. The agents may have acted unnecessarily in identifying themselves. Appellant, testifying at a hearing prior to his trial, stated that the agents “were as obvious as clowns at a circus.”
. Appellant’s concern is evidenced by the following testimony, which occurred during his cross-examination at the pretrial hearing on the motion to suppress:
“Q. You were cooperative with [the agents], weren’t you?
A. I was trying.
Q. Isn’t it a fact that you told them that you were relieved to get rid of the guns, and so forth?
A. That is true.
Q. They had been a burden to you for some time?
A. Yes.”
. Section 5861(d) provides that it shall be unlawful for any person “to receive or possess a firearm which is not registered to him in the National Elrearms Registration and Transfer Record.”
. Section 5844 prohibits the importation of firearms with exceptions not including appellant’s importations. Section 5861 (k) prohibits the possession of an illegally imported firearm.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_usc2
|
26
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
MARSMAN v. COMMISSIONER OF INTERNAL REVENUE.
No. 6535.
United States Court of Appeals Fourth Circuit.
Argued April 13, 1953.
Decided June 3, 1953.
Rehearing Denied July 7, 1953.
Herbert W. Clark, San Francisco, Cal. (Nelson T. Hartson, Seymour S. Mintz, William T. Plumb, Jr., Washington, D. C., Leon F. De Fremery, Clarence E. Musto, Richard J. Archer, Morrison, Hohfeld, Foerster, Shuman & Clark, San Francisco, Cal., and Hogan & Hartson, Washington, D. C., on the brief), for petitioner.
Louise Foster, Special Asst, to the Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and Plelen Goodner, Special Assts. to the Atty. Gen., on the brief), for respondent.
Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This petition to review the decision of the Tax Court presents the questions whether Mary A. Marsman, a citizen of the Commonwealth of the Philippines, was a resident of the United States during the period from September 22, 1940 to December 31, 1941, and if so, whether she is liable for United States income tax on certain undistributed net income held on December 31, 1940 by La Trafagona, a Philippine corporation, wholly owned by her. If these questions are resolved against the taxpayer, it is also necessary to determine (1) whether the tax should be based on one-half of the entire amount of the undistributed income of La Trafagona on December 31, 1940, or only so much thereof as was acquired after September 22, 1940, when she became a resident of the United States; and (2) whether the taxpayer, being on a cash basis, is entitled to a credit against her United States income tax for 1941 in the amount of the income taxes paid by her to the Philippine Islands in 1941 for the years 1938 and 1940.
The Tax Court found that Mrs. Mars-man was a resident of tile United States between September 22, 1940 and December 31, 1941, the tax periods involved herein, and that she was taxable on the undistributed income of La Trafagona for the entire year 1940 rather than for the period from September 22 to December 31, 1940, and that no pari of the income taxes paid to the Philippine government in 1941 was available to her as a credit against the United States income taxes due by her for that year.
The evidence on the controlling issues of residence may be summarized as follows: The taxpayer, a native of Scotland, and her present husband, J. H. Marsman, a native of Holland, became residents of the Philippines prior to 1920 and were married there in that year. They were naturalized in the Philippines in 1934 and became citizens of the Commonwealth in 1935 and remained citizens during the taxable period.
During these years each of them controlled large corporate business enterprises through the medium of a wholly owned Philippine holding company, that is, La Trafagona, owned by the taxpayer, and El Emprendedor, owned by her husband. They maintained two large and well furnished houses in the Philippines, one in Manila and another at Baguio, which were adequately staffed and always open for occupation. In 1939 and 1940 they made extensive improvements in these residences and acquired new furnishings for them.
In 1939 they planned to place their daughter Anne in school in England or on the continent of Europe, and on April 28 of that year, the three came to San Francisco partly for this purpose and partly to combine a business trip to the United States with a vacation in Europe. After their arrival Mr. Marsman, whose wide connections kept him well informed of the threat of war, concluded that it was not advisable to take his family to Europe and so he left them in California and flew to Europe on a business trip. He returned to San Francisco in September and shortly thereafter returned to Manila and did not return to the United States until December, 1939.
The husband and wife opened a joint account with a stockbroker in San Francisco in 1939 and Mrs. Marsman also opened such an account in her own name.
When the family first arrived in San Francisco in April, 1939 they took up residence in a hotel, accompanied by several servants. In June, 1939 Marsman bought a house for $30,000 and furnished it for use as a residence by the daughter while in attendance at school, and persons were engaged to care for her and the residence during her parents’ absence. In 1943 the house was sold and another was purchased in Los Altos, California.
The daughter was enrolled in a private school in San Francisco in September, 1939, completed her first year, and left for Manila in July, 1940. Her parents had preceded her in the previous April. They bought a yacht in California for $75,000 in 1940 and engaged a crew to sail the vessel to the Philippines in April.
The tax period under consideration began on September 22, 1940, when Mrs. Marsman and the daughter returned to San Francisco by air, and the child was again entered in school. Marsman remained in Manila except for short business trips and a visit to' the United States from June to September, 1941, when he returned to Manila. In December, 1941 he flew to Hong Kong and was captured by the Japanese. He escaped and came to the United States in 1942. He was not a resident of the United States at any time during the tax period which ended December, 1941.
Mrs. Marsman remained in the United States continuously from September 22, 1940 until 1945. She and her daughter were admitted on the occasion of their first visit in April, 1939 for “a temporary period, of six months.” In October, 1939 an extension of the temporary stay was granted for six months. On September 22, 1940, the mother and daughter were admitted for “a temporary period of ten months.” On July 1, 1941 an. extension for one year was requested for the reason that conditions abroad were still in an unsettled state; and in 1942, 1943 and 1944 additional extensions were requested and granted because of the war. In 1945 a one year extension was denied. On February 7, 1948 the taxpayer was allowed to enter the United States through Canada as a permanent British immigrant.
Mrs. Marsman denied that she formed the intent to remain in the United States during the taxable period, but there is nevertheless abundant evidence that her extended stay in this country was caused by war conditions and the desire to avoid the danger that would have attended a return to the Philippines. The Marsmans were acquainted with persons of importance in many parts of-the world and through their contacts were led to believe that there was grave danger of war in the Orient in 1940. Correspondence between the husband in Manila and the wife in San Francisco in the fall of 1940 and thereafter indicates his fear of war, his acquaintance with the' preparations of the United States in the Philippines to meet the emergency, and his satisfaction that his wife was in a safe place. Her letters to him frequently expressed her desire to return to her home, even as late as October, 1941, as well as her sense of obligation to the Marsman employees in the Philippines, but she nevertheless yielded to his wishes and his advice and was herself convinced of the danger, and in October, 1940, advised relatives in Canada to stay away from Manila.
In view of these facts we are of the opinion that the Tax Court was justified in finding that on September 22, 1940 Mrs. Marsman “had a definite intent to remain in the United States until such time as the danger of war in the Orient subsided”; and we do not think that the issuance of certificates for a stay in this country for temporary periods, or the presence of her daughter at school in San Francisco, or the strong desire of the taxpayer to return to her established home in the Philippines as soon as it should become safe for- her to do so, are inconsistent with the court’s conclusion. The case is governed by Treasury Regulations 111 § 29.211-2 where it is laid down that one who comes to the United States for a purpose of such a nature that an extended stay may be necessary for its accomplishment, and to that end makes his home temporarily in the United States, becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. The weight to be given to this Regulation in considering a question of residence in the application of the income tax law, was discussed by this court under somewhat similar factual conditions in Commissioner of Internal Revenue v. Nubar, 4 Cir., 185 F.2d 584, and Commissioner of Internal Revenue v. Patino, 4 Cir., 186 F.2d 962. We conclude that the taxpayer was taxable as a resident alien during the taxable years.
We come then to the questions relating to the inclusion of the undistributed net income of La Trafagona in the taxable income of Mrs. Marsman for the year 1940, and her claim to a credit against her United States income tax for 1941 of the amount of the income taxes paid by her to the Philippine government in 1941. The undistributed net income of La Trafagona for the entire year 1940 was $130,357.04, when computed under the provisions relating to “undistributed Supplement P net income” contained in Section 335 of the Internal Revenue Code, 26 U.S.C.A. § 335. The amount is not in dispute and the controversy is as to what portion thereof should be included in the taxable income, the taxpayer contending that the income acquired by the corporation prior to September 22, 1940 is not taxable in the United States, while the government contends that the income of the corporation for the entire taxable year was taxable to Mrs. Marsman. The statute relied on is Section 337 of the Internal Revenue Code, 26 U.S.C.A. § 337, which provides that the undistributed Supplement P net income of a foreign personal holding company shall be included in the gross income of citizens or residents of the United States who are shareholders thereof in the manner and to the extent set forth in the Supplement. Section 331 provides that a foreign corporation is such a holding company, if at least 50 per cent of its gross income (as defined in Section 334(a) is of the character described in Section 332, and if at any time during the taxable year more than 50 per cent in value of its outstanding stock is owned by not more than five individuals or residents of the United States who are called “United States group”.
It is not disputed that La Trafagona meets these requirements both as to the nature of its income and the ownership of its stock. The question is as to the interpretation of Section 337 which specifies the amount of the undistributed Supplement P net income which shall be included in the gross income, as follows:
“(a) General rule. The undistributed Supplement P net income of a foreign personal holding company shall be included in the gross income of the citizens or residents of the United States * * * who are shareholders in such foreign personal holding company (hereinafter called ‘United States shareholders’) in the manner and to the extent set forth in this Supplement.
“(b) Amount included in gross income. Each United States shareholder, who was a shareholder on the day in the taxable year of the company which was the last day on which a United States group (as defined in section 331(a)(2) existed with respect to the company, shall include in his gross income, as a dividend, for the taxable year in which or with which the taxable year of the company ends, the amount he would have received as a dividend if on such last day there had been distributed by the company, and received by the shareholders, an amount which bears the same ratio to the undistributed Supplement P net income of the company for the taxable year as the portion of such taxable year up to and including such last day bears to the entire taxable year.”
It will be seen that this section requires every “United States shareholder” of a foreign personal holding corporation to include in his gross income certain undistributed net income of the corporation if he was a stockholder on the last day in the tax year when the United States group was in existence. In this case the group consisted of Mrs. Marsman alone and she remained the sole shareholder until the last day of the year, so that she is within the definition of shareholder contained in the statute. As such she is required to include in her gross taxable income the amount she would have received as a dividend upon the last day of 1940 if on that day there had been distributed to her as the sole stockholder “an amount which bears the same ratio to the undistributed Supplement P net income of the company for the taxable .year as the portion of such taxable year up to and including such last day bears to the entire taxable year.” Since the last day in this case is the last day of the year 1940, Mrs. Marsman would be required to include in her- gross income the Supplement P net income of La Trafagona for the entire year, if the language.of the section is to be given a strictly literal interpretation.
We do not think, however, that the statute should be applied literally and without reference to the purpose for which it was admittedly enacted. The provisions of the statute now set out in Sections 331 to 340 of the Internal Revenue Code, 26 U.S.C.A. §§ 331-340, as Supplement P — Foreign Personal Holding Companies, were first enacted in Title II of the Revenue Code of 1937. They were passed by Congress to prevent the avoidance of income tax by taxpayers in the United States which was accomplished by placing-income of the taxpayer in the hands of a foreign holding company that was itself not subject to the jurisdiction of the United States. The Ways and Means Committee of the House of Representatives made this plain in its report to the House (IT.R.Rep. No. 1546, 75th Cong., 1st Sess. 1937), when it said: “* * * The- evidence presented to the Joint Committee has shown that foreign personal holding companies have afforded one of the most flagrant loopholes for tax avoidance. The use of such corporations has greatly increased within the last few years. Unless- immediate preventative measures are taken increased loss of revenue will be suffered in the future.”
The statute was obviously designed to reach the income of persons who were subject to the tax laws of the United States but were eluding taxation through the foreign holding company device. Accordingly Section 331(a)(2) provided that the stock ownership requirement of a foreign personal holding company should be the ownership of 50 per cent in value of its outstanding stock by not more than five individual citizens or residents of the United States, who are called “United States group” in- Section 331 and “United States shareholders” in Section 337; and Section 337 provided that the undistributed Supple-' ment P income of such a corporation must •be included in the gross income of such shareholders. Thereby the distinction between the corporate entity and its controlling United States shareholders was wiped out for the purposes of income taxation and the tax avoidance device of placing undistributed taxable income in a corporation outside the United States was frustrated.
But Congress did not intend to reach the income of persons, such as alien nonresidents, which was not subject to the laws of the United States when it was received by them or by a holding company subject to their control. If that part of the income of Mrs. Marsman, now sought to be taxed, which was earned prior to September 22, 1940, had been received by her instead of by her holding company prior to that date, no one would contend that it was subject to taxation by the United States when she became a resident of this country; and it is not reasonable to suppose that Congress intended that the statute should produce such an unlooked for result. The government’s answer to this view is that the taxpayer and the holding corporation are separate and distinct entities in the eye of the law, and hence the income of La Trafagona prior to September 22, 1940 was not the taxpayer’s income, when received, but became such only after she acquired a residence in this country and became subject to the provisions of the statute which converted undistributed income of a holding company into the income of the shareholders as of the last day of the year. We cannot agree with this analysis of the problem, for it not only extends the statute far beyond its announced purpose, but .it is inconsistent in itself in that it treats the taxpayer and the corporation as distinct legal persons during the first part of the year but as one and the same person after the taxpayer acquired her residence in the United States. If the government’s contention is sound, an alien? who controls a foreign holding company with undistributed income and becomes a resident of the United States on the last day of the year, and hence is a taxpayer of the United States for only a single day, would he subject to income tax upon the income for the entire year. We cannot attribute to the Congress of the United States the intent to accomplish such an extraordinary result.
A more reasonable approach has been taken by the Tax Court in the analogous situation which occurs when there is a change in the status of a taxpayer during the tax year, as where a taxpayer, who is exempt from income tax at the beginning of the year, loses the exemption in the course of the twelve months. Thus iu Economy Savings & Loan Co. v. Com’r, 6 Cir., 158 F.2d 472, a building and loan association, which was exempt from taxation because its business was substantially confined to making loans to members, lost its exemption during the year by changing substantially all of its business to lending money to depositors. Although the statute made no specific provision for such a contingency, ilie court held that the income for the portion of the year prior to the change of business operations was exempt but that the income for the remainder of the year was subject to taxation. See also Royal Highlanders v. C. I. R., 1 T.C. 184, reversed on other grounds, 8 Cir., 138 F. 2d 240; Reserve Loan Life Ins. Co. of Tex. v. C. I. R., 4 T.C. 732.
No reason is suggested, other than the insistence upon a literal interpretation of the statute regardless of results, why a similar procedure should not be followed in the pending case. Returns for a fractional part of the tax year are recognized by Section 48(a) of the Internal Revenue Code, 26 U.S.C.A. § 48(a). Such a return was required of the taxpayer for that part of the year which began when she took up her residence in this country; and if the taxpa3>-er is permitted to limit her report of the undistributed income of La Trafagona to the amount received by that corporation during the last 101 days of 1940, she will pay the tax on all the income received during the period when she was subject to the tax laws of the United States and the purpose of the statute will be effectuated.
This view is in accord with Ihe rule of interpretation enunciated in United States v. Amer. Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345, where the court declined to interpret literally the word “employee” as found in the Motor Carriers Act, because it would place upon the Interstate Commerce Commission, contrary to the settled practice of Congress, the duty of regulating the qualifications of a large number of employees who had nothing to do with safety of operation. The court said, 310 U.S. at pages 543-544, 60 S.Ct. at page 1063:
“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ”
The last question for decision relates to the right of the taxpayer to a credit against her United States income tax for the year 1941 of the amount of her Philippine income taxes for the years 1938 and 1940;A paid by her in 1941. In the last mentioned year, the taxpayer, her husband and daughter, filed joint Philippine income tax returns for the years 1938-41, and paid to the Philippine government 265,812.87 pesos for a deficiency in income tax for the year 1938, and 198,699.12 pesos for income tax for the year 1940.
The taxpayer bases her claim to the credit upon the literal unambiguous wording of Section 131 of the Internal Revenue Code, as amended by the Revenue Act of 1942, 26 U.S.C.A. § 131, as follows:
“Sec. 131(a) Allowance of Credit. — ■ If the taxpayer chooses to have the benefits of this section, the tax imposed by this chapter, except the tax imposed under section 102 or section 4S0, shall be credited with:
******
“(2) Resident of United States. — ■ In the case of a resident of the United States, the amount of any such taxes paid or accrued during the taxable year to any possession of the United States; and * *
“Section 131(b) Limit on Credit.— The amount of the credit taken under this section shall be subject to each of the following limitations:
“(1) The amount of the credit in respect of the tax paid or accrued to any country shall not exceed the same proportion of the tax against which such credit is taken, which the taxpayer’s net income from sources within such country bears to his entire net income, in the case'of a taxpayer other than a corporation, * *
The taxpayer contends that the full amount of the Philippine income taxes paid by her in 1941 is available to her as a credit against her United States income tax for that year because the payments fell clearly within the express terms of Section 131(a)(2) subject only to the limitation contained in Section 131(b) which in this case means that the amount, of the credit shall not exceed the same proportion of the United States tax as her taxable income derived from the Philippines bore to her entire income.
The Tax Court denied the credit as to 1938 entirely and allowed the credit as to 1940 only as to such portion of the Philippine income taxes as were allocable to the period between September 22 and December 31, 1940, during which the taxpayer was a resident of the United States. In so doing the Tax Court departed from its insistence upon the literal meaning of the applicable statute which it displayed in interpreting Section 337 of the Internal Revenue Code as shown above, and held that Section 131 should be so construed as to effect the Congressional purpose to allow a credit of taxes paid to other countries so as to lift the burden of double taxation from the shoulders of the taxpayer.
We are in accord with this interpretation. The Supreme Court has held that the primary purpose of the tax credit, which was first authorized by Section 222 of the Revenue Act of 1918 and is now found in Section 131, was to mitigate the evils of double taxation. See Burnet v. Chicago Portrait Co., 285 U.S. 1, 52 S.Ct. 275, 76 L.Ed. 587; American Chicle Co. v. United States, 316 U.S. 450, 62 S.Ct. 1144, 86 L.Ed. 1591; Hubbard v. United States, Ct.Cl., 17 F.Supp. 93, certiorari denied 300 U.S. 666, 57 S.Ct. 508, 81 L.Ed. 873. This, purpose will not be served and double taxation will not be avoided by allowing the credit now sought by the taxpayer because the 1938 and 1940 Philippine income taxes, paid by the taxpayer in 1941 were imposed upon income which was never subjected and could not be subjected to the United States income taxes for the reason that the taxpayer was a nonresident of the United States until September 22, 1940 and the Philippine income during these two. years was derived from sources outside the United States. To allow the credit under such circumstances would be to give preferred status to a citizen of the Philippines, as compared with a citizen of the United States, and it is not reasonable to suppose that such a result was within the contemplation of Congress.
Other cognate sections of the taxing statutes support this construction of Section 131. It is provided in Section 252 of the Internal Revenue Code, 26 U.S.C.A. §; 252, that an individual, such as the taxpayer, who was a citizen of a possession of' the United States but not otherwise a citizen of the United States, shall be taxed only on income derived from the United States, and that the tax must be computed. as in the case of other persons who are taxable only on income derived from the United States. These other persons are non-resident aliens who by the terms of Section 216 of the Code are expressly denied tax credits based on taxes paid to foreign countries and possessions of the United States. Consequently, if the taxpayer had had income from sources within the United States in 1938 or in 1940 prior to September 22, she would have been allowed no credit for the Philippine taxes paid for these years. In view of these provisions of the tax statutes relating to non-residents it would be anomalous to hold that when the taxpayer became a resident of the United States in 1940 and paid in 1941 overdue Philippine income taxes for 1938, she became entitled to a tax credit under Section 131 which could not have been allowed if the tax had been paid in the year when it was due and payable.
The taxpayer relies on the decision of this court in Helvering v. Campbell, 4 Cir., 139 F.2d 865, where we held that a United States citizen residing in the Philippine Islands was entitled to a credit for the entire Philippine income tax and not merely to a credit for the taxes paid on a portion of the income. But this decision related not to the right to a credit for Philippine taxes paid during the year but to the amount of the credit to be allowed, and we do not regard it as controlling in the present case.
The decision of the Tax Court will be affirmed as to the question of residence and the question of the proper tax credit to be allowed, and will be reversed as to the amount of the undistributed income of La Trafagona to be included in the income of the taxpayer subject to the United States income tax, and the case will be remanded for further proceedings in accordance with this opinion.
Reversed and remanded.
. It is conceded that the taxpayer’s income under Philippine law is community property and that she is chargeable for only one-half of the undistributed property of La Trafagona.
. Section 29.211-2 of the Regulations also provides that an alien whose stay is limited to a definite period by the immigration laws is not a resident in the absence of' exceptional circumstances; and Section 29.211 — 4 states that an alien is presumed to be a non-resident but that the presumption may be overcome by proof that his stay in this country has been of such an extended nature as to constitute Mm a resident. It is evident, however, that these provisions do not conflict with the conclusion that has been reached.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_usc1sect
|
155
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 8. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES ex rel. TRINLER v. CARUSI.
No. 9461.
Circuit Court of Appeals, Third Circuit.
Argued Dec. 15, 1947.
Decided Feb. 16, 1948.
O’CONNELL, Circuit Judge, dissenting.
Abram Orlow, of Philadelphia, Pa. (Lemuel B. Schofield, of Philadelphia, Pa., on the brief), for appellant.
Maurice A. Roberts, of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., and James P. McCormick, Asst. U. S. Atty., both of Philadelphia, Pa., on the brief), for ap-pellee.
Before GOODRICH, McLAUGHLIN and O’CONNELL, Circuit Judges.
GOODRICH, Circuit Judge.
This case raises an interesting question concerning the right to judicial review under the Administrative Procedure Act, hereinafter referred to as the Act.
The appellant, Trinler, is.an alien who was admitted to the United States in 1942 as a “treaty merchant”. He was subsequently convicted for the violation of a Presidential war order, paid his fine and served the sentence imposed on him. Still later he has been made the unhappy subject of a deportation order issued by the Commissioner of Immigration and Naturalization, the person to whom the authority of the Attorney General to deport has been delegated. This order was issued on the ground that he had failed to maintain his “treaty merchant” status. Claiming that the Act gave him a right to judicial review of this order, he filed in the District Court of the United States for the Eastern District of Pennsylvania a document labelled “Petition for Review”. On motion of the respondent the petition was dismissed. 72 F.Supp. 193 (E.D.Pa.1947) noted in 96 U. of Pa.L.Rev. 268 (1947). He has appealed.
The first question raised is whether, assuming all other questions are answered in favor of the appellant, this case is ripe for review. It was suggested in the argument in this Court that the administrative process had not yet come to an end and until it had, review was premature. This point was evidently not made in the District Court and, indeed, was not taken seriously in the briefs submitted to us. But it was stressed in oral argument and has made us some difficulty.
We think this objection does not impose any substantial obstacle to review. The administrative process has come to an end. The statute says “the decision of the Attorney General shall be final.” That decision has been made by the Commissioner of Immigration and Naturalization, the duly delegated official, and this deportation order has been issued thereupon. It is true that Trinler has not been taken into custody and, obviously, has not been put on a ship for deportation, nor has the ship sailed. But these three things are no part of the administrative process. That ended when, intermediate proceedings provided for by the regulations issued by the Attorney General having been gone through with, the order of deportation was issued. There is nothing more to do now than the purely ministerial act of taking the man into custody, putting him on a ship bound for the designated port.
No inconsistency between this view and that of the selective service cases is present. In fact they furnish a persuasive analogy here, as shown by the following language of Mr. Justice Douglas in Estep v. United States: “Falbo v. United States, supra [320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305], does not preclude such a defense in the present cases. In the Falbo case the defendant challenged the order of his local board before he had exhausted his administrative remedies. Here these registrants had pursued their administrative remedies to the end. All had been done which could be done. Submission to induction would be satisfaction of the orders of the local boards, not a further step to obtain relief from them.”
To conclude that the administrative proc-ess has ceased with the issuance of the deportation order by the delegatee of the Attorney General does not, however, settle the question of whether Trinler has a right of judicial review or the nature of that right, if any he has. Attention has already been called to the language of the statute which says that the “decision of the Attorney General shall be final.” Nevertheless, and in spite of such language, it is perfectly clear that it is not final in the sense that courts cannot do anything about it. The petitioner points out, and the Government agrees, that the legality of deportation orders may be tested in habeas corpus proceedings. The Government also points out and the petitioner agrees, that such orders have been tested successfully only in such proceedings and subject to whatever limitations as there are inherent in such proceedings as to the scope of those questions which may be raised by habeas corpus. Such review is not available to this petitioner because he has not yet been taken into custody.
We have, therefore, a situation where in spite of statutory language of finality for an administrative order there is judicial review of long standing, albeit of a limited nature. The new question presented in this litigation is whether that review has been enlarged by Section 10 of the Administrative Procedure Act. Paragraph (a) of Section 10 gives judicial review to “Any person * * * adversely affected * * * by such action.” We do not need to labor the point that petitioner is adversely affected by the deportation order. His difficulty comes, however, in the “excepting” clause with which Section 10 opens. That clause says “Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion” the right of judicial review is given.
The Commissioner says that this case is an instance under the first exception because the basic statute precludes judicial review and it precludes it in the already quoted phrase that the “decision of the Attorney General shall be final.” Trinler says this phrase does not settle the question because in spite of that language courts have judicially reviewed deportation orders for many years through the habeas corpus proceedings. It is admitted, says Trinler, that at this particular stage of his deportation matter habeas corpus would not be available. Nevertheless, his argument runs, since there is a court created judicial review for deportation orders it cannot be said that the case is one where judicial review is precluded. Therefore, the argument continues, he has the right to review which Section 10 of the statute gives and the right accrues when the order is issued without his having to wait for the court created right of review by habeas corpus.
The Commissioner argues that such a result would upset long established administrative procedure in the handling of deportation cases. The petitioner argues that to permit a right of review upon the issuance of the deportation order instead of compelling .a man to wait until arrested is ever so much fairer to him and prevents the hardship of his having to sacrifice his American possessions and be prepared to be taken out of the country if his habeas corpus proceedings fail. We can grant the truth of the foregoing statements by each side without being helped in the- solution of our problem here. If the Act creates new rights for aliens by providing an earlier review of deportation orders, the Attorney General will have to modify his administrative practice. If it does not, the alien will have to continue to suffer whatever hardships that accompany his right to habeas corpus. The nub of the question seems to us to be whether these deportation proceedings are such as to fall within the first exception to Section 10 as a proceeding provided by a statute which “preclude[s] judicial review”.
Our conclusion is that the case does not fall within the exception. Therefore the judicial review provisions found in Section 10 of the Act are applicable. We are impressed by the fact that in spite of the basic statute’s wording habeas corpus proceedings have always been available. Since they have been available the situation cannot be one where judicial review in the past has been precluded. In this we are supported, we think, by discussion found in the legislative history of the Act. In that discussion it was pointed out that statutes which preclude judicial review are unusual. Congressman Walter pointed out to the House of Representatives that this clause was simply put in to provide for the unusual situation where judicial review of administrative action was actually precluded.
It may be granted that the area covered by Section 10 of the statute is not very wide. Counsel for petitioner has given us a long list of important statutes in which judicial review is expressly provided for. It may well be that the instances where it is expressly precluded are few. But whether the new law made by Section 10 be wide or narrow, the instant case seems to us to be one which fits into it.
While it might look as though judicial review were precluded by the giving to the deportation order the air of finality, in practice such finality never existed because of the availability of habeas corpus. The fact that review has been judge-made out of the concept of due process does not make it any less a qualification of the statute than if the legislators had put the provision in it when the statute was first drawn.
Since we conclude that petitioner is entitled to judicial review following the issuing of the order which adversely affects him, we think the form in which he has asked for such review is proper enough. The respondent pointed out to us that a bill in equity, declaratory judgment, and similar remedies were not available in these deportation cases. That is agreed to as the law stood prior to the Administrative Procedure Act. What we are here deciding is that the Act did enlarge the rights of people against whom deportation orders have been issued and that they are now entitled to judicial review after the issuing of a deportation order. That being so, a document headed “Petition for Review” is an appropriate enough form in which to ask for the relief.
It will be noted that the caption of this case is the type which customarily appears in habeas corpus proceedings. It seems to us inappropriate here. The United States is not the complaining party nor is Trin-ler a “relator”. He is a petitioner and a public official is the respondent. These points do not go to the merits of the controversy but should be observed in the interest of neat presentation.
We express at this point no opinion whatever upon the merits -of the petitioner’s case. All we are deciding is that under the Administrative Procedure Act of 1946 he is entitled to have judicial review as one adversely affected by the deportation order after its promulgation but before he has been taken into custody.
The judgment of the District Court will be reversed and the case remanded for further proceedings in accordance with this opinion.
60 Stat. 237, Act June 11, 1946, 5 U.S.C.A. § 1001 et seq.
43 Stat. 154, Act May 26, 1924, 8 U.S.C.A. § 203.
The deportation of aliens has by law been committed to the Attorney General. He has, however, delegated that authority to the Commissioner of Immigration and Naturalization with a right of review of the Commissioner’s order to the Board of Immigration Appeals in those cases in which the Commissioner determines that the alien should be deported. 8 C.F.R. 90.1 (Supp.1943); 8 C.F.R. 90.3 (Supp. 1945); see Warren, The Federal Administrative Procedure Act and The Administrative Agencies (1947) pp. 294-295. If the Board’s conclusions conflict with those of the Commissioner the case may be certified to the Attorney General upon the Commissioner’s request or the Attorney General may request that the record in any case be certified to him. 8 C.F.R. 90.3 (Supp.1945).
The allegations in the petition, which for the purpose of this appeal we must take to be true, do not state which procedure was followed in the case at bar. But the following paragraphs of that petition state the authority of the Commissioner and that he issued the final order. They state:
“2. That the Defendant is the Commissioner of Immigration and Naturalization duly authorized by law to carry into effect the provisions of the Immigration Act of February 5, 1917 and all amendments thereto, and authorized by law to enter final orders thereunder.”
“4. That by virtue of the provisions of the ‘Administrative Procedure Act’ above referred to, this Court has jurisdiction to review the proceedings in which the Commissioner of Immigration and Naturalization is a party in his final capacity as a designated officer of the Government of the United States who enters a final order in administrative proceedings by an Agency of the Government of the United States.”
“8. That thereafter the defendant issued a warrant of arrest in proceedings for deportation by virtue of the authority of the defendant under the Immigration Act of 1924 and after hearing and review, the said defendant directed the deportation of your petitioner and advised him that a final order had been entered by the defendant under the proceedings whereby the petitioner was to make himself ready for deportation at the convenience of the Defendant.”
§ 19 of the Immigration Act of 1917, 39 Stat. 889, amended by 54 Stat. 1238, Reorganization Plan No. 5, June 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A. § 155.
When the Commissioner determines that there is cause to suspect that a person is in the country in violation of the Immigration statute he causes a warrant to be issued. It is the issuance of the warrant which starts the administrative process and the hearing afforded the alien comes after the warrant is issued. See Warren, The Federal Administrative Procedure Act and The Administrative Agencies (1947) pp. 294-295. The regulations of the Attorney General provide that the alien shall be accorded a hearing before an immigration inspector to determine whether he is subject to deportation on the charges stated in the warrant of arrest, at which hearing the alien is entitled to representation by counsel and to offer evidence in his behalf. After the conclusion of the hearing, the inspector is required to prepare a memorandum setting forth a summary of the evidence adduced at the hearing, his proposed findings of fact and conclusions of law and a proposed order, which are to be furnished to the alien, or his counsel who may file exception thereto and submit a brief. 8 C.F.R. 150.6 (Supp.1941). The decision is then made by the Commissioner. The alien then has a right of appeal to the Board of Immigration Appeals, a body authorized by the Attorney General to perform his functions in relation to deportation but responsible solely to him. 8 C.F.R. 90.3 (Supp.1945). If one member of the Board dissents the proceedings are reviewed by the Attorney General, 8 C.F.R. 90.5, 90.12 (Supp.1945). Otherwise, the warrant of deportation is issued by the Commissioner.
Once the order is issued the Commissioner would be recreant to his duty and disobeying the law if he did not deport the alien unless the matter came within the exception contained in the Immigration Act which is not involved here. 39 Stat. 889, Act Feb. 5, 1917, amended 54 Stat. 1238, Reorganization Plan No. 5, Juné 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A. § 155; see United States v. Commissioner of Immigration, S.D.N. Y.1936, 14 F.Supp. 484,487.
1946, 327 U.S. 114, 123, 66 S.Ct. 423, 428, 90 L.Ed. 567.
In Japanese Immigration Case, 1903, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721, it was Feld that in habeas corpus proceedings a court could inquire into the ■deportation proceedings to ascertain if a fair hearing was had, notwithstanding that the statute contained no provision for a judicial review. Congress was aware of this case when it wrote the present immigration law. Sen.Rep.No. 352, 64th Cong., 1st Sess., Vol. 2, Misc. ii. p. 16 (1916); see 96 U. of Pa.L.Rev. 268 (1947).
Petitioner, however, states that other proceedings have failed because the remedy employed was not the proper one rather than due to the fact that ha-beas corpus was the exclusive remedy. See 96 U. of Pa.L.Rev. 268 (1947). In this connection it is interesting to note that the Attorney General’s Committee indicated that the Declaratory Judgment Act of 1934 may afford a method to review deportation orders. See Administrative Procedure Act — Legislative History, Sen.Doc.No.248, 79th Cong., 2d. Sess. p. 37.
60 Stat. 243, Act June 11, 1946, 5 U.S.C.A. § 1009(a).
60 Stat. 243, Act June 11, 1946, 5 U. S.C.A. § 1009.
The Immigration Act of 1917, 39 Stat. 889, Act Feb. 5, 1917, amended by 54 Stat. 1238, Reorganization Plan No. 5, June 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A § 155.
An example is the Economy Act of 1933, 48 Stat. 9, Act March 20, 1933, 38 U.S.O.A. § 705. In that Act such prohibition is expressly stated in clear and unequivocal language. United States v. Mroch, 6 Cir., 1937, 88 F.2d 888. The language used in the Selective Service Act, on the other hand, caused the court to hold that review of a Board’s order was permissible. Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Congress, itself, recognized that such language was not strong enough to prohibit all review for it indicated that habeas corpus would be available after the registrant was inducted. H. Rep.No.36, 79th Cong., 1st Sess. (1945) 5.
See Administrative Procedure Act— Legislative History, Sen.Doc.No.248, 79th Cong., 2d Sess. p. 380. In five of the six bills introduced the original phrase in the section prescribing judicial review was “expressly preclude”. The elimination of the word “expressly” in the bill which finally became law has no significance other than to indicate that the failure of the basic statute to contain the exact words “precludes review” is not conclusive. But the words of the Act when given their ordinary meaning and reference to the legislative history makes it clear that a mere failure to provide for review or an intent to limit the review granted does not place a statute within the “excepting clause” of the Act. See Administrative Procedure Act — Legislative History, supra pp. 131-183 (various bills introduced), 311, 318, 325, 212.
That it was the Congressional intent to make new law in this connection is evident from the answers given by the sponsor of the bill when it was being presented to the Senate. See Administrative Procedure Act — Legislative History, Sen.Doe.No.248, 79th Cong., 2d Sess. pp. 311, 318, 325.
gee Freund, Administrative Powers Over Persons and Property 240-1 (1928).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 8? Answer with a number.
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Bob D. WHITESIDE; Lenore H. Whiteside, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 86-6004.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 1, 1987.
Decided Dec. 1, 1987.
Lawrence R. Lieberman and Patricia M. Snyder, Levinson & Lieberman, Inc., Beverly Hills, Cal., for plaintiffs-appellants.
Matthew Anderton, Washington, D.C., for defendant-appellee.
Before KENNEDY, PREGERSON and KOZINSKI, Circuit Judges.
KOZINSKI, Circuit Judge:
We review an order dismissing Mr. and Mrs. Whiteside’s complaint which charged the United States with wrongfully levying on their property.
Facts
On April 29, 1980, the Whitesides lent $45,000 to another couple, Heert and Linda DeWindt. The loan was secured by a deed of trust on a property the DeWindts owned in San Bernardino, California. The trust deed was duly recorded in San Bernardino County on August 15, 1980.
In 1983, the DeWindts developed financial problems. In April of that year, the Whitesides recorded a notice of default against the property. In October, the IRS recorded two federal tax liens against all the DeWindts’ property in San Bernardino County. The liens, each in the sum of $12,757.94, were identical in every respect except that one named Heert as taxpayer, while the other named Linda.
On November 28, 1983, the trustee notified the IRS that the DeWindts’ property would be sold pursuant to the Whitesides’ notice of default. The sale was called off, however, after the IRS notified the trustee that the notice of sale did not conform to IRS regulations. On December 9, 1983, the trustee sent the IRS a new notice of sale which included the IRS notice of lien against Heert but said nothing about the lien against Linda. The IRS did not object to this second notice and the trustee’s sale was held as scheduled on January 4, 1984. The IRS did not participate in the sale and the Whitesides bought the property for approximately $35,000.
In May 1984, the IRS levied against the property, claiming that the sale had failed to discharge Linda's tax lien. The White-sides exhausted their administrative remedies and then brought suit against the IRS seeking a declaration that Linda’s tax lien was discharged by the trustee’s sale, and that the IRS levy was therefore wrongful. The district court granted summary judgment for the IRS. The Whitesides appeal.
Discussion
As a general rule, a lien in favor of the United States is not disturbed by a nonjudicial sale of the property. I.R.C. § 7425(b). There is an exception, however, if the IRS is given notice of the sale in accordance with IRS regulations. Id. at § 7425(c)(1). The question presented on this appeal is whether the notice given by the Whitesides — disclosing Heert’s lien but not Linda’s — was sufficient to extinguish the government’s interest in the property.
Because I.R.C. § 7425 delegates to the Secretary of the Treasury the authority to specify what a notice of sale must provide, we must look to the applicable regulations in making our decision. Under the regulations, a notice of sale must contain the following four items: (i) the name and address of the person submitting it; (ii) copies of each of the tax liens to be discharged or a summary of the information they contain; (iii) a description of the property and the terms of its proposed sale; and (iv) the approximate amount of the obligation, plus costs, that the sale will discharge. 26 C.F.R. § 301.7425-3(d)(l)(iHiv).
The Whitesides’ December 9 notice of sale was plainly inadequate because it omitted information about Linda’s tax lien as required under item (ii) above. Plaintiffs argue that we should nevertheless deem the notice to the IRS sufficient because the liens against Heert and Linda were identical in every material respect and the IRS therefore suffered no prejudice from the omission. The IRS responds that the regulations clearly provide that the notice of sale shall contain “[a] copy of each Notice of Federal Tax Lien (Form 668) affecting the property to be sold....” 26 C.F.R. § 301.7425 — 3(d)(l)(ii) (emphasis added). Though they be technical, the IRS says, the regulations must be complied with. We agree.
However, the IRS may not simply ignore an inadequate notice and retain the right to levy on the property after the sale. Rather, it must give the trustee “written notification of the items of information which are inadequate.” Id. at § 301.7425-3(d)(2). Where the IRS does not object to the notice more than five days prior to the sale, “the notice shall be considered adequate for purposes of this section.” Id.
Here, the Whitesides provided the IRS notice that was timely but defective. This shifted the burden to the IRS to notify the Whitesides of the defect. Under the plain language of the regulations, the defect in the notice was cured when no IRS objection was received by the trustee five days before the sale. Id. Since the notice of sale was thus deemed effective, it operated to extinguish the government’s lien once the sale was consummated.
The government advances two arguments as to why we should reject this conclusion. First, it suggests that the government’s obligation to object is triggered on a lien-by-lien basis and that, by failing to notify the IRS of Linda’s lien, the Whitesides forfeited the protections provided for them in the regulations. This is simply not so. The statute and regulations provide that the IRS will be given a single notice for each sale, I.R.C. § 7425(c)(1); 26 C.F.R. § 301.7425-3(a)(l), even when there are multiple IRS liens on the property. See id. § 301.7425 — 3(d)(l)(ii) (Notice of sale shall contain “[a] copy of each Notice of Federal Tax Lien (Form 668) affecting the property_”). The regulations contemplate that the notice of sale may be defective and provide procedures for dealing with such a defect: The IRS is required to object. The government provides no support for the proposition that omission of a lien is so serious a defect that it relieves the IRS of the obligation to object. Indeed, the regulations do provide that the IRS may stand mute in the face of one type of defect in the notice of sale. See supra n. 4. The IRS is not given the same privilege when a notice of lien is omitted. The natural inference is that omission of a lien is to be treated like any other defect and the IRS must object if it is to preserve its rights.
The government also argues that requiring the IRS to object where a lien is completely omitted from the notice of sale places upon it an unfair or unreasonable burden. Perhaps so. But we may disregard regulations only if they violate a statute or the constitution. The Secretary had broad authority to shape these regulations but having done so, he is bound by them. See United, States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954); Flores v. Bowen, 790 F.2d 740, 742 (9th Cir.1986).
Conclusion
We reverse the decision of the district court and remand for entry of judgment in favor of the Whitesides.
. The notice did not give an adequate description of the property or the location of the sale.
. The government claims that the Whitesides’ notice of appeal was defective because they made a motion under Fed.R.Civ.P. 52(b) for an additional finding of fact after the district court had entered judgment against them. This question was presented to, and resolved by, a motions panel of this court which asserted jurisdiction over the appeal.
. All references are to the Internal Revenue Code as amended through the date of the trustee's sale.
. There is a single exception to the requirement that the IRS advise the trustee of a deficiency in the notice: where the “notice of sale ... does not contain the name and address of the person submitting such notice_" 26 C.F.R. § 301.7425-3(d)(2).
. The government’s argument that we ought to depart from the strict language of the regulations in the pursuit of fairness sounds a dissonant note with its steadfast reliance on the strict letter of the regulations pertaining to whether the notice was adequate. See Government Br. at 15-16; supra p. 821-22. Having agreed with the government that the notice of sale was technically defective — even though it could have caused the IRS no conceivable prejudice in these circumstances — we surely then cannot be expected to take a different approach when a literal reading of the regulations benefits the taxpayer.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
JANEWAY et ux. v. COMMISSIONER OF INTERNAL REVENUE. SHIELDS v. SAME.
Nos. 29, 30.
Circuit Court of Appeals, Second Circuit.
Feb. 6, 1945.
Wright, Gordon, Zachry, Parlin & Ca-hill, of New York City (Charles C. Parlin and Robert C. Brown, both of New York City, of counsel), for petitioners.
Samuel O. Qark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, and Newton K. Fox, all of Washington, D. C., for respondent.
Before CPIASE, HUTCHESON, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
We read the findings of the Tax Court taken together with its opinion as saying that, as a matter of fact, all the payments made by the taxpayers to the corporation were capital contributions of such character that, as against any third persons (such as, e.g., persons contracting with the corporation) the taxpayers would have to be regarded as stockholders and nothing else. As the Tax Court’s conclusion rests upon a determination of fact supported by substantial evidence, we cannot disturb it, even under a restricted interpretation of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239. Accepting that conclusion, the decision of the Tax Court is correct.
Affirmed.
That we may do so, see, e.g., Insurance & Title Guarantee Co. v. Commissioner, 2 Cir., 36 F.2d 842, 845; California Iron Yards Co. v. Commissioner, 8 Cir., 47 F.2d 514, 518; Producers’ Creamery Co. v. United States, 5 Cir., 55 F.2d 104, 108; Emerald Oil Co. v. Commissioner, 10 Cir., 72 F.2d 681, 683; Flynn v. Commissioner, 5 Cir., 77 F.2d 180, 183; California Barrel Co., Inc. v. Commissioner, 9 Cir., 81 F.2d 190, 193; Baker v. Commissioner, 6 Cir., 115 F.2d 987, 989.
Involved is the question of the credibility of the witnesses as to the taxpayers’ intentions, a question surely for the Tax Court.
See Paul, Dobson v. Commissioner: The Strange Ways of Law and Fact (1944), 57 Harv.L.Rev. 753, 822-831; Buckminster’s Estate v. Commissioner, 2 Cir., 1944, 147 F.2d 331.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
ZICOS v. DICKMANN et al.
No. 11084.
Circuit Court of Appeals, Eighth Circuit.
Aug. 18, 1938.
Louis Hudson and Maurice J. Gordon, both of St. Louis, Mo., for appellant.
Oliver Senti, of St. Louis, Mo. (E. H. Wayman, of St. Louis, Mo., on the brief), for appellees.
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
SANBORN, Circuit Judge.
This is a suit in equity brought by the appellant to enjoin law enforcement officers of the City of St. Louis, Missouri, from seizing or confiscating mint vending machines belonging to him. From a decree dismissing the bill of complaint and the suit for want of equity, this appeal is taken.
The bill of complaint alleges that the petitioner (appellant) is a resident and citizen of Illinois, and' that defendants (appellees) are “the duly appointed, qualified and acting members of the Board of Commissioners of the Police Department of the City of St. Louis, Missouri,” “the duly appointed, qualified and acting Chief of Police of the City of St. Louis, Missouri,” “the duly elected, qualified and acting Circuit Attorney of the City of St. Louis, Missouri,” and “the duly elected, qualified and acting Sheriff of the City of St, Louis. Missouri”; that petitioner is in the business of selling mints by means of vending machines and has been engaged in that business in St. Louis, Missouri; that his business consists of placing mint vending machines in restaurants and other places of business; that he is the owner of about fifty of such machines in locations in St. Louis, which machines are worth $100 each, that he has in St. Louis 100 cases of mints of the value of $1,000, and that his total investment in machines' and equipment in that City is about $6,000 or more; that in November, 1937, the Board of Commissioners of the Police Department, acting through its police officers, “without cause or justification and without warrant issued by a competent or judicial authority, unlawfully seized and confiscated” one of petitioner’s machines, arresting the proprietor of the place where it was installed, and that the defendants ordered the proprietors of two other places in which petitioner’s machines had bepn installed, to remove them under threat of arrest; that petitioner is informed and believes that the Police Board of the City of St. Louis ordered the seizure and removal of all of the petitioner’s machines and the arrest of the proprietors of the places where they were located; that after the seizure by police officers of “the mint vending machines aforesaid” petitioner withdrew the machines theretofore installed and has not since attempted to install any machines or to have any machines operated in St. Louis, “in orders to forestall the unlawful and unwarranted seizure and confiscation thereof by defendants.”
The bill of complaint describes the nature and use of the vending machines and the contracts under which they are installed, all" of which the petitioner claims clearly indicate that they are not gambling devices and are not capable of being used for the purpose of gambling; and the petitioner alleges that there is no law of Missouri or of the United States, enacted to prevent gambling, which applies to the operation of the petitioner’s machines, but that, unless the defendants are restrained from so doing they will destroy any machines of petitioner which may be found in places of business, and arrest the proprietors of. such places and compel petitioner to withdraw his machines from use forever, and will prevent him from earning the profits which would otherwise accrue to him through the leasing of the machines and the selling of mints thereby.
The bill contains this allegation: “Petitioner states that by reason of the seizure, confiscation, and destruction of th$ mint vending machines, now being held by defendant Police Board, aforesaid, and the continued seizure, confiscation and destruction of further machines as threatened by the defendants, and by reason of the loss-of the profits which lawfully accrued to him through the operation and leasing of the said mint vending machines, petitioner is unlawfully deprived of his property without due process of law, in violation of Section 30, Article II, of the Constitution of Missouri [Mo.St.Ann.Const. art. 2, § 30] and of Article V, of the Amendments to the Constitution of the United States [U. S.C.A.Const. Amend. 5]; that by reason of the seizure of said machines, petitioner and his property and effects are being subjected to unreasonable searches and seizures in violation of Section [Article] II, of the Constitution of Missouri [Mo.St.Ann. Const, art. 2, § 11], and of Amendment IV, (four) of the Amendments to the Constitution of the United States [U.S.C.A.Const. Amend. 4] ; that by reason of the seizure and confiscation and destruction of said machines, petitioner is deprived of the right to follow a lawful business and earn a livelihood, in violation of Section IV, of Article II, of the Constitution of Missouri [Mo.St.Ann.Const. art. 2, § 4]; guaranteeing all persons a natural right to the enjoyment of the gains of their own industry.”
The first question to be determined is whether the court below acquired jurisdiction of this case.
It is to be noted that the bill of complaint contains no allegation as to the value of the right of the petitioner to .conduct his business in the City of St. Louis, and states no facts from which the value of that right can be determined. Petitioner alleges merely that he had an investment of some $6,000 in his business in that City, and that, after the seizure of one of his machines and after threats had been made to confiscate two others, he withdrew his investment and ceased operations in St. Louis. That the value of his right to continue in business in St. Louis is worth more than $3,000 does not appear from the facts stated. Since his mint vending machines (with the exception of one which was seized) have been withdrawn, it appears that they are no longer in jeopardy and their value would certainly not measure the sum or value of the matter in controversy.
In a suit of this nature, the jurisdiction of the District Court attaches only “where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under th? Constitution or laws of the United States, or 'treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects.” Jud.Code, § 24(1), 28 U.S.C. § 41(1), 28 U.S.C.A. § 41(1).
The Act of March 3, 1911, c. 231, § 37, 36 Stat. 1098, 28 U.S.C. § 80,28 U.S.C.A. § 80, makes it the duty of the District Court to enforce these jurisdictional limitations (McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 182, 56 S.Ct. 780, 782, 80 L.Ed. 1135; American United Life Ins. Co. v. Franklin, 8 Cir., 97 F.2d 76), and it is incumbent upon one who seeks the exercise of jurisdiction in his favor to allege in his pleading the facts essential to give jurisdiction, and throughout the litigation to carry the burden of showing that he is properly in court. McNutt v. General Motors Acceptance Corporation, supra, page 189, 56 S.Ct. page 785.
It is the value of the right which the petitioner seeks to protect against interference which measures the amount in controversy in such a suit as this. Hunt v. New York Cotton Exchange, 205 U.S. 322, 336, 27 S.Ct. 529, 51 L.Ed. 821; Bitterman v. Louisville & Nashville R. Co., 207 U.S. 205, 225, 28 S.Ct. 91, 52 L.Ed. 171, 12 Ann. Cas. 693; Berryman v. Whitman College, 222 U.S. 334, 345, 346, 32 S.Ct. 147, 56 L.Ed. 225; Glenwood Light Co. v. Mutual Light Co., 239 U.S. 121, 125, 126, 36 S.Ct. 30, 60 L.Ed. 174; McNutt v. General Motors Acceptance Corporation, supra, page 181, 56 S.Ct. page 781.
Suits between citizens of different states and suits arising under the Constitution and laws of the United States cannot be brought in the federal courts unless the value of the matter in controversy is more than $3,000. Holt v. Indiana Manufacturing Co., 176 U.S. 68, 72, 73, 20 S.Ct. 272, 44 L.Ed. 374; Healy v. Ratta, 292 U.S. 263, 269, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248.
While it is unnecessary to consider other questions, we take the liberty of directing attention to the failure of appellant to allege .in his bill that the defendants are citizens of Missouri, and to the rule that jurisdictional facts may not be inferred argumentatively from the allegations of a pleading. Brown v. Keene, 8 Pet. 112, 115, 8 L.Ed. 885; Continental Ins. Co. v. Rhoads, 119 U.S. 237, 240, 7 S.Ct. 193, 30 L.Ed. 380; Anderson v. Watt, 138 U.S. 694, 702, 11 S.Ct. 449, 34 L.Ed. 1078; Timmons v. Elyton Land Co., 139 U.S. 378, 11 S.Ct. 585, 35 L.Ed. 195; Roberts v. Lewis, 144 U.S. 653, 656, 12 S.Ct. 781, 36 L.Ed. 579; Stuart v. Easton, 156 U.S. 46, 15 S.Ct. 268, 39 L.Ed. 341; Hanford v. Davies, 163 U. S. 273, 279, 280, 16 S.Ct 1051, 41 L.Ed. 157.
The suit should have been dismissed for lack of jurisdiction, and not for want of equity.
The case 'is remanded, with directions to set aside the decree appealed from, and .to enter a decree of dismissal for lack of jurisdiction.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Frances E. HOARE, Surviving Widow of Joseph A. Hoare, Deceased, Appellant, v. UNITED STATES of America, Appellee.
No. 17162.
United States Court of Appeals Ninth Circuit.
Sept. 21, 1961.
Kenneth S. Treadwell, of Miracle, Treadwell & Pruzan, Seattle, Wash., for appellant.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz, Fred E. Youngman and C. Guy Tadlock, Attys., Dept, of Justice, Washington, D. C., Charles P. Moriarty, U. S. Atty., and Joseph C. McKinnon, Asst. U. S. Atty., Seattle, Wash., for appellee.
Before CHAMBERS, HAMLEY and HAMLIN, Circuit Judges.
HAMLEY, Circuit Judge.
The question here presented is whether under the circumstances of this case a government tax lien has priority over a chattel mortgage given by the tax debtors as security for the performance of a lease.
The referee in bankruptcy held that the tax lien had priority. The district court confirmed that determination. The surviving widow representing the lessors-mortgagees has appealed. For the reasons indicated below we hold that the chattel mortgagees had priority with respect to rent due and other arrearages prior to the time notice was given of the tax lien.
On October 16, 1957, Joseph A. Hoare and his wife leased the ground floor of a business building in Port Angeles, Washington, to Alfred P. Conrad and wife. The term of the lease was five years, and the lessors, fulfilling an obligation assumed under the lease, expended $29,-496.62 in remodeling the premises for use as a restaurant and cocktail lounge.
The rental was fixed at $660 a month, the lease providing for an increased rental in any month that six per cent of gross monthly sales should exceed that figure. Only that part of the $660 monthly rent which equaled six per cent of gross sales for the month was required to be paid at the end of the month. If at the end of any month the sum thus immediately due did not equal $660, the balance of the rent for that month was payable at any time within six months.
It was further provided in the lease that in the event of the lessees’ failure to perform any term, covenant or condition of the lease the lessors should state the breach in writing to the lessees. The lessees were then given thirty days within which to fully perform, upon failing which “this lease forthwith shall be can-celled. * * *”
As required by other provisions of the lease, the Conrads on October 31, 1957, made, executed and delivered to the lessors a demand promissory note in the amount of $15,000 and a chattel mortgage on the lessees’ property located on the premises. The note was given “as security for the performance” of the lease. The note was “without interest” but contained the provision that “if not paid when due” it would bear interest at six per cent. The mortgage was given “as security for the payment” of the note and “as security for the performance” of the lease.
In both the note and mortgage it was recited that in the event the makers fully performed the lease during the first three years of its term the note and mortgage would be canceled and satisfied. Both instruments provided for foreclosure of the mortgage in the event of failure to perform any term, covenant or condition of the lease. In the note it was stated that from the proceeds of a foreclosure sale the whole amount of the note together with attorney’s fees were to be paid. In the mortgage it was recited that the sum owing by virtue of the note and mortgage should be “the agreed and liquidated damages owing the payees for said breach.”
The Conrads entered into possession on December 21, 1957. They paid no rent until April 1958. They thereafter paid various monthly amounts ranging from $100 to $750, the last payment having been made on October 6, 1958. The Director of Internal Revenue took possession of the leasehold on October 14, 1958, by a proper levy for unpaid taxes in the amount of $5,993.85. The Conrads were accordingly forced to close their business, on that date. On November 13, 1958,, the lessors served upon the Conrads a formal cancellation of the lease. The lease provided for cancellation in the event the lessees became insolvent.
Four days later the Conrads filed a voluntary petition in bankruptcy. Pursuant to a stipulation entered into between the trustee and all lien claimants, the trustee in bankruptcy sold all of the assets of the bankrupt’s business known as Conrad’s Cafe, and after payment of expenses of sale and of administration had $7,500 on hand for distribution to lien claimants.
Proceedings were then had before the referee in bankruptcy to establish the rank and priority of payment of various claims. The referee found that at the time the lease was canceled the bankrupt was delinquent on rent payments in the sum of $3,800, and had permitted utility bills and labor liens to accrue in the amount of $616.56. The Government’s net tax claim was found to be in the amount of $5,775.58, with an additional $776.86 for costs and expenses of levy. It was found that the lessors had re-leased the premises on June 6, 1959, for a monthly rental of $350 and that the lessors’ total loss due to the Conrads’ nonpayment of rent and subsequent cancellation of the Conrad lease was $11,000-.
The referee determined that the claim for the $776.86 expended by the Director of Internal Revenue in enforcing the tax lien had first priority of payment. Second priority was given to a claim in the sum of $743.72 secured by a chattel mortgage held by a hotel supply company. Third priority was given to the tax lien in the sum of $5,775.58. Joseph A. Hoare was given fourth priority “in payment of the lien of his chattel mortgage in the amount of not to exceed $11,000.”
The lessors petitioned the district ■court for a review of the referee’s determination in so far as it gave the tax lien priority over their chattel mortgage. The court adopted and confirmed the referee’s determination, and this appeal followed.
The lien of the United States for unpaid taxes arose under section 6321 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6321. As therein provided, "the lien was “upon all property and rights to property, whether real or personal,” belonging to Conrad. The lien arose at the time the assessment was made (§ 6322 of 1954 Code, 26 U.S.C.A. § 6322) which was after the filing of the ■chattel mortgage here in question. It is provided in section 6323(a) of the 1954 Code, 26 U.S.C.A. § 6323(a), that, with ■exceptions not here relevant, the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed as therein provided.
The lessors asserted that by reason of ■their chattel mortgage they were mortgagees within the meaning of section ■6323(a) and that the tax lien was therefore invalid as to them. The district court, however, confirming the determination of the referee, held that the lessors’ lien under their chattel mortgage was neither perfected nor specific as to the obligation to pay the note and mortgage or the amount owing at the time of the assessment and levy, and that section 6323(a) was therefore inapplicable.
It is not indicated in the record whether a notice of lien was filed in the manner provided by section 6323(a) or if so, when. We will therefore assume that section 60.68.010 of the Revised Code of Washington, providing for the filing of notice of federal tax liens in the office of the county auditor of the county in which the property subject to the lien is situated, was complied with at least as of the date of levy.
The instrument relied upon is labeled a chattel mortgage and was executed and filed in the manner required for chattel mortgages in the state of Washington. Chattel mortgages to secure the performance of the obligations of a lessee under a lease are valid in Washington. Pollock v. Ives Theatres, Inc., 174 Wash. 65, 24 P.2d 396.
What is meant by the word “mortgagee” as used in section 6323(a), however, is a federal question, as to which state law is to be considered but is not controlling. With regard to categories of interests set out in section 6323(a) it has been held that Congress used the terms in their usual and conventional sense. The question then is whether the lessors are, by reason of the chattel mortgage which has been described, “mortgagees” in the usual and conventional sense.
In so far as the mortgage was given to secure the payment of $15,000 as liquidated damages in the event of a breach of the lease, the lessors were not mortgagees in the usual and conventional sense. The foreclosure contemplated by the customary mortgage is intended to effectuate a return of value given by the mortgagee and nothing more.
But the mortgage was given not only to secure payment of the note but also as security for the performance of the lease. If with respect to performance of the lease, at the time of the tax levy, the lessors occupied a position substantially equivalent to that of mortgagees under a conventional mortgage, their claim is to that extent protected against the section 6321 lien under section 6323(a).
It is true that the mortgage provides that in the event of foreclosure payment shall be made from the proceeds of the sale of the whole amount specified in the note. But if the provisions of the mortgage concerning the obligation assumed and the occasioning of a breach are, as we have concluded, compatible with the generally accepted notion of a mortgage, the fact that an unorthodox measure of recovery is specified does not require total rejection of the instrument as a mortgage to which the provisions of section 6323 (a) apply. In this event it comports with the spirit of the statute to afford section 6323(a) protection consistent with the measure of security which an ordinary mortgage affords, if doing so effectuates the underlying purpose of the parties.
In our view, with regard to arrearages actually existing at the time of the tax levy, the lessors occupied a position which may be fairly likened to that of the mortgagee under an open-end mortgage on which advances were made prior to the notice of the tax lien. As each month under the lease went by, the lessees’ use of the premises represented in effect the acceptance and use of value advanced by the lessors. The fact that such value was in the form of the right to occupy premises rather than in the form of cash does not seem important. Had the lessors supplied money each month, secured by an open-end mortgage, the amount owing when the tax lien attached would be protected by section 6323(a). We see no reason why the same protection should not be afforded where the money value is in some form other than actual cash.
The Government argues that section 6323(a) protection is not available because the liability of the bankrupt under the note and mortgage and the corresponding right of the mortgagee to recover were wholly contingent upon some default of the mortgagors in their performance under the lease. It is pointed out in this connection that the first step taken by the mortgagees to assert their right under the mortgage and fix liability on the mortgage was the giving of notice of cancellation on November 13, 1958, which was subsequent to the tax levy.
The mortgage expressly provides that in the event the lessees shall fail to perform any term, covenant or condition of the lease during the first three years of the term “then the Mortgagees may foreclose this mortgage in the manner provided by law. * * * ” There is no requirement that the lease be canceled or that any event beyond a default by the mortgagor occur before the mortgage may be foreclosed.
We have not overlooked the fact that under the terms of the lease the lessees were entitled to thirty days in which to correct any delinquency after being given notice of a breach. It follows that the mortgage was not subject to foreclosure until such notice had been given and the thirty-day period had run without remedial performance by the mortgagors. No such notice had been given prior to the tax levy, and so the lessees had not, prior to the tax levy, been given an opportunity to repair the breach.
But as we view it, the thirty-day grace period relates to the manner of enforcing the mortgage, not its validity. The mortgagors had, to the extent of their use of the premises, already received value and were obligated to pay for it. Notice of the breach was just a step in the process of the mortgagees’ enforcement of their existing right.
With regard to any mortgage, the fact that steps have not been taken to foreclose prior to notice of a federal tax lien does not deprive the mortgagee of the benefit of section 6323(a). Evans v. Stewart, 245 Iowa 1268, 66 N.W.2d 442, 449. Indeed, the underlying promissory note may not yet be due and still section 6323(a) protection is available. This is true despite the fact that under either of these circumstances the mortgagor may, subsequent to the tax lien, pay the obligation if or when due and so avoid foreclosure.
The Government next argues that the identity of the property subject to lien in this case was as indefinite as was the property subject to the lien in United States v. Waddill, Holland & Flinn, 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294, in which the Government tax lien was given priority.
Waddill did not involve section 6323 (a), but rather the priority accorded government claims against an insolvent debtor under 31 U.S.C.A. § 191. The tax lien was asserted with regard to personal property, the fixtures and equipment used in the conduct of a restaurant. The counter-lien was one asserted by a landlord by virtue of certain Virginia statutes. These statutes authorized a landlord to levy distress for six months’ rent upon “any goods” of the lessee found on the premises.
The landlord had not asserted his lien prior to the date on which the tax lien attached. The court, holding that the property subject to the landlord’s lien was not then identifiable, pointed out that until the lien was asserted it was impossible to determine what goods were subject to the lien.
In our case there is no such problem. The chattel mortgage identifies as the mortgaged property all furniture, fixtures, supplies, equipment, appliances, licenses and the trade-name of the restaurant in question, together with added and substituted parts. This identification is as precise and complete as that of the ordinary chattel mortgage. The statutory landlord’s lien in Waddill could not be related to any specific property until the lien was enforced. Here the property was identified in the contract instrument.
The Government further argues that the amount of the liability was not fixed and could not be determined until the mortgagee took steps to foreclose.
The liability to pay delinquent rent arose as soon as the rent became delinquent. At the time of the tax levy the amount then owing was known to or was ascertainable by the parties. This amount was then subject to collection by foreclosure.
Under these circumstances it is immaterial that this amount had not by then been judicially determined, since the lessors are not seeking status as judgment creditors. It is immaterial that the amount due was not then known to the Government or to third parties generally. This is ordinarily the case where, for example, a mortgage is given to secure payment of an installment note. It is likewise immaterial that the lessees’ liability was, by payment, subject to mitigation or elimination after the levy. This possibility exists with regard to any unforeclosed mortgage.
The Government relies upon United States v. R. F. Ball Construction Co., 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510, as requiring a holding that the mortgage before us is not protected by section 6323 (a). The encumbrance involved in Ball was not in form a mortgage, and what tire Supreme Court said in its per curiam opinion may have been intended to indicate the view that the claimant was not a mortgagee within the meaning of the statute.
However that may be, neither of the assignments under consideration in Ball were given to secure an indebtedness which to any extent matured before the tax lien attached. The assignments were given to protect a bonding company with regard to the potential liability it assumed under two performance bonds. There was no failure of performance giving rise to actual liability until after the tax lien was filed. The liability for which the assignments had been given was thus contingent and unliquidated when the tax lien attached.
In the instant case liability had already arisen to the extent of the arrearages existing when the tax levy attached. The fact that the lessees might have thereafter extinguished this liability by paying the arrearages did not render such liabilities either contingent or unliquidated.
Nothing said in United States v. Christensen, 9 Cir., 269 F.2d 624, or United States v. Bond, 4 Cir., 279 F.2d 837, calls for a different conclusion than expressed above. Both of these cases involved the question of whether the protection afforded by section 6323(a) extends to property taxes assessed against mortgaged property and paid by the mortgagee after a tax lien attached. Our conclusions in favor of the mortgage, on the other hand, have been limited to the amount representing value given by the mortgagees to the mortgagors prior to the tax levy.
At the time of the termination of the lease the actual arrearages for rent and other items were $4,416.56. But the lease was not terminated until November 13, 1958, whereas the tax levy was made on October 14, 1958. The arrearages on the latter date, which we hold to be protected by section 6323(a), may have been something less than $4,416.56.
The judgment is reversed and the cause is remanded with directions to determine the actual arrearages on October 14, 1958, and to accord the lessors priority to that extent over the federal tax lien.
. See United States v. Gilbert Associates, 345 U.S. 361, 363, 73 S.Ct. 701, 97 L.Ed. 1071; United States v. Acri, 348 U.S. 211, 213, 75 S.Ct. 239, 99 L.Ed. 264. To be distinguished is the question of ■whether and to what extent the taxpayer has property or rights to property to which a tax lien could attach, as to which question state law controls. Aquelino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365; United States v. Durham Lumber Co., 363 U.S. 522, 80 S.Ct. 1282, 4 L.Ed.2d 1371. No such question is presented here, since lessors do not contend that their chattel mortgage divested the lessees of a property interest in the mortgaged property upon which the Government could levy. Nor would such a contention have substance under Washington law. Glaspey v. Prelusky, 36 Wash.2d 592, 219 P.2d 585, 588.
. United States v. Scovil, 348 U.S. 218, 221, 75 S.Ct. 244, 99 L.Ed. 271, “purchaser”; United States v. Gilbert Associates, Inc., 345 U.S. 361, 364, 73 S.Ct. 701, 97 L.Ed. 1071, “judgment creditor.” Regarding what constitutes a mortgagee within the meaning of 26 U.S.C.A. § 6323, see United States v. Gargill, 1 Cir., 218 F.2d 556, 560-561.
. The Internal Revenue Service has itself so ruled. Rev.Rul. 56-144, 1956-1 Oum. Bull. 562, 563:
“In the ease of an ‘open-end mortgage’ which covers future advances, it is possible that no future advances may ever be made. Therefore, until such an advance is actually made, there can be no fixed and specific or perfected lien under Federal law as distinguished from a mere contingent hen or ‘caveat of a more perfect hen to come.’ Consequently, an intervening recorded Federal tax hen has priority over advances made subsequent to the date of such recording.”
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Robert S. DAVIS, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Robert S. DAVIS, Respondent.
Nos. 11727, 11728.
United States Court of Appeals Seventh Circuit.
March 1, 1957.
Walter E. Barton, Washington, D. C., for. Davis.
Charles K. Rice, Asst. Atty. Gen., Davis W. Morton, Jr., Attorney, Tax Division, U. S. Department of Justice, Washington, D. C., Lee A. Jackson, Robert N. Anderson, Attorneys, Department of Justice, Washington, D. C., for 'C. I. R.
Before LINDLEY and SCHNACKEN-¡BERG, Circuit Judges, and WHAM, District Judge.
LINDLEY, Circuit Judge.
In 11727 the taxpayer seeks to set ■aside a judgment of the Tax Court denying him the right to take as a deduction his admitted loss of $32,000 for the year 1945 on an investment in a part interest •in an oil and gas lease. In 11728 the 'Commissioner seeks to avoid a judgment of the same court allowing the loss as •a deduction- for the year 1944. The second appeal is taken, as the Government frankly avows, to protect its rights if this court disturbs the decision that the loss was sustained in the year 1944. Consequently, the only question presented is whether the Tax Court properly held the deduction in question attributable to the year 1944 instead of the year 1945.
On January 1, 1940 an oil and gas lease was executed by the United States as lessor to certain lessees, covering four ‘ sections of land in Lee County, New Mexico, “for a period of five years and as long thereafter as oil and gas is produced in paying quantities.” On October 17, 1944, the lessees assigned that part of the lease, to Cherry and Kidd, covering Sections 21 and 28 in Town 19 S., R. 33 E., N.M.P.M., Lee County. On July 6, 1944, petitioner advanced to Cherry and Kidd, $32,000 as payment for an undivided one-half interest in their sub-lease covering Sections 21 and 28, and they executed and delivered to him a written assignment. This instrument was not filed with the Secretary of the Interior.
In the fall of 1944 Cherry and Kidd drilled a well on Section 21, but discontinued work thereon, on December 19, 1944, at a depth of 3600 feet. This well was plugged and abandoned on January 6, 1945 and this action was approved by the Secretary of the Interior on November 7, 1945. No other well was drilled on either Section 21 or Section 28. Promptly after ceasing drilling the well in Section 21, the original lessees filed with the Government, a preference right application for a new lease on Sections 29 and 30, and this was allowed by the Department of Interior later effective as of December 31, 1944. On the same day Cherry and Kidd filed a like application for a new lease covering Sections 21 and 28, and, on August 29, 1946, received it effective as of December 31, 1944. The record does not disclose that petitioner at any time obtained or had any interest in either of the new leases.
These facts and others were stipulated and parol evidence was submitted.- The stipulation included an agreement as to the year 1944 that: “The correct net income of the petitioner for 1944 is $32,-387.99, unless the Court should hold that petitioner sustained a loss of $32,000.00 during said year 1944 upon the termination of said lease referred to in paragraph 4(a), supra, in which event the correct net income of petitioner for said year 1944 is $387.99” and, as to the year 1945, that: “The correct net income for 1945 is $103,063.37, unless the Court should hold that petitioner sustained a loss of $32,000.00 during said year 1945 upon the termination of said lease referred to in paragraph 4(a), supra, in which event the correct net income of petitioner for said year 1945 is $71,063.37”. The trial court, believing that that part of the stipulation which refers to the termination of the lease as the decisive event was a stipulation of law, held that the taxpayer had not proved that the loss occurred in 1945 but that, in fact, it had been sustained in 1944.
Section 23 of the Internal Revenue Act of 1939, 26 U.S.C.A. § 23, permits deduction, under subparagraph (e) of individual losses “sustained during the taxable year”, if the loss was “incurred in any transaction entered into for profit.” Regulation 118, Sec. 39.23 (e)-1(b), provides that a loss, to be deductible, “must be evidenced by closed and completed transactions, fixed by identifiable events, bona fide and actually sustained during the taxable period for which allowed.” As the Supreme Court, in Boehm v. Commissioner, 326 U.S. 287, at pages 292, 293, 66 S.Ct. 120, at pages 123, 124, 90 L.Ed. 78, said: “Section 23 (e) itself speaks of losses ‘sustained during the taxable year.’ The regulations in turn refer to losses ‘actually sustained during the taxable period,’ as fixed by ‘identifiable events.’ Such unmistakable phraseology compels the conclusion that a loss, to be deductible under § 23(e), must have been sustained in fact during the taxable year. * * * The standard for determining the year for deduction of a loss is thus a flexible, practical one, varying according to the-circumstances of each case.” And, as. the court said, in Nelson v. United States, 8 Cir., 131 F.2d 301, at page 302, the question is one of fact controlled by evidence in the particular case. So, here, the parties properly stipulated that the.court’s decision as to liability should be based upon a determination of the year-in which the loss occurred. Obviously, the further stipulation that this meant, termination of the lease was not controlling, and the Tax Court rightfully proceeded to decide the question of the-proper date for itself.
However, we find no justification for the conclusion of the Tax Court, that the evidence does not reflect a loss sustained in the year 1945. It is undisputed that the lease did not expire until January 1, 1945; that it covered’ two sections of land; that only one well had been driven, on one of the two sections ; that complete exploration of the-possibilities for production of oil and gas on 1280 acres had not been explored or ascertained; that the lessees had a right to apply to the Government for new leases before the expiration date; and, that, until the lease expired, they had the right to proceed to endeavor to-discover oil and gas. As long as the lease was in effect, there was a possibility that other wells on the section in which the one well had been driven and on the-other sections on which no well had been drilled might result in finding oil and gas. in productive quantities. Consequently, it cannot be said that the leases were worthless. The abandonment of one well on a total of 1280 acres is not proof off the worthlessness of an oil lease upon the entire acreage. That the parties continued to believe in such possibilities, is evident from their applications for and' allowance of new leases. Consequently, this lease, not made worthless by the drilling of one well, was of some value-at all times until it expired, and the Tax Court, we think, was not justified in-saying that stopping work on the one well was an abandonment of the entire-leasehold, and proof of the lack of value-of the entire lease at that time. The identifiable event, in our opinion, irrespective of the stipulation of the parties to that effect, but as a matter' of law, upon the undisputed facts, was the time of the closed transaction, that is, the year 1945. Until that time plaintiff retained an interest in the lease, the possibilities of which had not been exhausted. Obviously, however, when his lease expired and no .attempt was made to renew it, he lost everything he had invested in the lease; and that loss occurred upon the effective termination of the lease in 1945.
Similar to the question here was the one before the court in Helvering v. Canisteo Mining Co., 8 Cir., 76 F.2d 378, 379. There the lease was to become invalid upon giving six months’ notice. The Government contended that the loss occurred when the notice was given, but the court held that the loss was sustained when the lease expired by virtue of the notice saying: “Until the expiration of this prescribed period the lessee is bound by the terms of the lease and all its obligations thereunder.” Mertens, in his Law of Federal Income Taxation, Volume 5, page 54 (1956 Edition) concludes that any loss of investment in an oil lease is sustained at the expiration of the lease, unless there is a definite abandonment prior to the termination thereof. Otherwise, there is no loss, until the lease is cancelled or terminated according to its provisions. We approve of this reasoning.
We think there can be no doubt that the definable date for fixing the time of the loss was January 1, 1945. In making such computations the first day of the period is excluded. Consequently, the lease, having been made January 1, 1940, did not expire until the end of January 1, 1945. This is in accord with the doctrine announced by Mr. Justice Holmes in Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 51 S.Ct. 185, 75 L.Ed. 448. Similar are the announcements of other courts. See Eastern Oil Co. v. Coulehan, 65 W.Va. 531, at page 539, 64 S.E. 836 at page 839, as well as the text writei’s.
We conclude therefore, that the only possible inference to be drawn from the facts submitted to the Tax Court is that the identifiable date fixing the time of accruement of the loss was January 1, 1945, and that the deduction, accordingly, should be attributed to the year 1945 rather than to 1944. Each of the judgments of the Tax Court is reversed. Each of the causes is remanded for further proceedings in accord with the announcements herein contained.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America and Albert J. Valentas, Internal Revenue Agent, Plaintiffs-Appellants, v. HUMBLE OIL & REFINING COMPANY, Defendant-Appellee.
No. 72-3029.
United States Court of Appeals, Fifth Circuit.
Sept. 8, 1975.
Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Mary J. McGinn, Charles E. Anderson, Gilbert E. Andrews, Crombie J. D. Garrett, Robert E. Lindsay, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiffs-appellants.
Walter B. Morgan, Robert G. Standlee, Houston, Tex., for defendant-appellee.
Before GEWIN and MORGAN, Circuit Judges, and GORDON, District Judge.
PER CURIAM:
The Supreme Court of the United States on April 28, 1975 vacated the judgment of this court in the case of United States v. Humble Oil and Refining Company, 488 F.2d 953 (5th Cir. 1974) and remanded the case'for further consideration in light of United States v. Bisceglia, 420 U.S. 141, 95 S.Ct. 915, 43 L.Ed.2d 88 (1975).
We have carefully considered Bisceglia and have concluded that it does not require a reversal of our decision in this case. Both cases involve the enforceability of a “John Doe” summons issued by the Internal Revenue Service. While the Bisceglia Court held the “John Doe” summons before it to be enforceable, we decline to construe that holding as a blanket endorsement of the use of “John Doe” summonses in every situation without reference either to the purpose of the summons or to the factual circumstances which underlie its issuance.
At issue in Bisceglia was the enforceability of a “John Doe” summons issued by the IRS to a bank. The impetus behind the issuance of the summons was the deposit with the bank of some 400 badly deteriorated one hundred dollar bills by an unknown bank customer. This extraordinary transaction gave rise to a strong suspicion of unpaid taxes. An agent was assigned to investigate, and the issuance of the summons constituted the first step in the investigative process.
In the case now before us the IRS issued a “John Doe” summons in order to discover the identities of all lessors of mineral leases surrendered by Humble Oil in the calendar year 1970. The information sought did not relate to a specific, extraordinary transaction as in Bisceglia. Nor were there any factu- . ally demonstrable grounds to suggest the likelihood of unpaid taxes. The summons was not issued to facilitate any ongoing investigation. Rather, the information was sought from Humble to expedite research on an IRS project concerning compliance with the lease restoration requirements of the Internal Revenue Code. An adjustment of tax liabilities may have incidentally resulted from the project, but the primary purpose of the project was research. We do not believe that the provisions of 26 U.S.C. §§ 7601 and 7602 authorize the IRS to force private citizens to do its research. Nor do we believe that Bisceglia sanctions this use of the summons power. The judgment is therefore affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
R. U. V. ENGINEERING CORPORATION v. BORDEN CO.
No. 37, Docket 20722.
United States Court of Appeals Second Circuit
Nov. 8, 1948.
Bohleber, Fassett & Montstream and William Bohleber, all of New York City (Francis H. Fassett and John M. Montstream, both of New York City, of counsel), for appellant.
Fish Richardson & Neave and Maxwell Barus, all of New York City, for appellee.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
L. HAND, Chief Judge.
Judge Coxe’s opinion in the District Court states the facts so fully that we need not repeat them here; and, indeed, we follow so closely his discussion of the invalidity of the claims because of their variance from the original disclosure, that it is perhaps doubtful whether we can add anything useful to what he has said. We have set out in an appendix a number of passages from- the disclosure, which relate to the “activation” of milk to produce Vitamin D. These very fully describe that process (there are other passages specifically devoted to “sterilization”), and it is so apparent from a mere reading of them that the process was conceived in general as requiring “multiple exposure,” that it cannot be necessary to labor the argument. ' The same was true of all the original claims except Claims Ten to Sixteen, inclusive. Claims Ten and Twelve were substantially alike-; they were both to “induce beneficial properties” in the milk by exposure for only a “fraction of a second”; and in 'Clairfis Eleven and Thirteen, which were .also alike, this period was enlarged to “less than eight seconds.” These • four claims,, being general as to the number of exposures, intended,.would have had to be read upon, and confined to, the disclosure; and .they add nothing to the plaintiff’s argument that the specifications from the outset foreshadowed the claims in suit. On the other hand, original Claims Fourteen and Fifteen, again substantially alike, prescribed “one or more” exposures, as did- Claim Sixteen; and it was upon these and upon a passage in the disclosure, which we quote in the margin, that the applicants relied when they later • introduced the claims now in suit.
The meaning of this passage, especially when it is read together with the paragraph which just preceded it, is that a single exposure, “when the irradiation is properly controlled,” will resttlt in a “substantial increase” in vitamins; and that “increase” was described as equal to “ten” Steenbock, or 30 U. S. P. “units.” That meant that, if you were content with that much “activation,” one exposure would do; but that, since the effect of successive exposures was cumulative, if you wished more than the 30 U. S. P. “units,” you might apply the “cyclic method”; i.e>. repeat the exposure. If you repeated it eight times, you would get “a substantial increase * * * with each exposure, and a high vitamin content at the end.” The preceding paragraph spoke more quantitatively; if you repeated the exposure twenty-five times you would get 300 U. S. P. “units.” (Obviously, the increase, though cumulative, would not be in proportion to the number of exposures.) These claims could, therefore, only have meant to cover the first modest “increase,” when they spoke of “treating milk” by one exposure; and similarly Ciai'm Sixteen, when it spoke of “activating and sterilizing milk” by one exposure. Thus it appears, not only that the disclosure in general prescribed “multiple exposure,” but that in the only instance in which a single exposure was suggested, it declared affirmatively that a very low degree of “activation” would result. From one end to the other of the specifications, they did not even intimate the possibility of obtaining 400 U. S. P. “units” by one exposure; indeed, they were to the. contrary.
Claims Thirteen and Fourteen in suit were introduced into the application on March 22, 1935, less than two years before the Creamery Package machine was proved to have gone into public use, and a fortiori before the advent of the Hanovia machine. These claims were not expressly for one exposure, though they could have been read to cover one exposure after the disclosure had been amended as it was on July 26, 1936. When' introduced, merely as matter of interpretation, they would, like Original Claims Fourteen, Fifteen and Sixteen, have confined the single exposure process to the production of a low “activation.” This appears from an analysis of Claim Thirteen, which will serve as a sample for all three. It says that the “desired potency” may be obtained for the whole volume of milk by exposing only a “fraction” of the layer to the rays, the layer as a whole being too thick to be penetrated. That was true enough, if the “desired potency” was in the neighborhood of the 30 U. S. P. “units”; but if a greater “potency” was “desired,” the disclosure, as it then stood,' declared that the exposure must be repeated. Certainly it would be contrary to every canon to interpret such a claim as covering the infringing processes. However, the vice goes deeper, because, even though we were to assume that the claim could be stretched so far, it would then lack any support in the disclosure; and that, of course, would be fatal to its validity. All such support continued to be absent until the disclosure was finally amended on July 26, 1936, and when that was done, not only, did the amendments flatly contradict the disclosure as a whole, but it was too late, for the processes had been in operation for more than two years. Muncie Gear Works, Inc., v. Outboard Marine & Manufacturing Co. is only the' last of many decisions which have halted such attempts. Indeed, it is hard to imagine a more glaring effort to introduce into specifications a new and unexpressed invention two years after the art had already made the advance.
Judgment affirmd.
Appendix
Lines '52-57, Col. I, Page 3: “It is con-: templated to effect the successive treating of portions of substances of this character, such treated portions being mixed with untreated portions between the successive- treating steps in order that the resulting process provides a substance which is relatively uniformly treated.”
Lines 23-47, Col. II, Page 3: “Our method relates to the irradiation of substances capable of having beneficial or detrimental effects imparted thereto and comprises treating such a substance with a number of short intermittent exposures to radiant energy emanating from one or more sources or stages of active rays, no one of said exposures being sufficient to give the whole body of the substance the amount of treatment necessary to produce the ultimate desired beneficial results or effects, and mixing the substance between exposures, such that said mixings take place away from the action of the rays to permit one to control the distribution and amount of treatment received by the substance. The proper combination of the time of each exposure or amount of treatment and the number of exposures will give a much better result than that obtained if the same total time of treatment were given without regard to the amount of each exposure. The number of treatments to be given depends on the layer thickness used, the time limits of exposure and the amount of desirable or beneficial effects desired and the amount of undesirable effects that may be tolerated.”
Lines 57-70, Col. II, Page 3: “With this understanding our invention, in one of its broad aspects, comprises exposing a substance to the influence of active rays of sufficient effectiveness and for such duration as to give the same a fractional treatment and to impart beneficial effects thereto but for a duration insufficient to impart undesirable effects thereto, mixing said substance after such fractional treatment, and then alternately repeating this cycle until the desired beneficial effects throughout the substance have been attained, these repetitions being less than that required to impart detrimental effects thereto.”
Lines 40-45, Col. II, Page 4: “We have discovered that a few or thousands of exposures to radiant energy of short wave lengths may be utilized to produce beneficial effects in a substance when the time of each exposure is only a fraction of a second, as will be hereinafter described."
Lines 73-75, Col. I, Page 5 and Lines 1-10, Col. II, Page 5: “In a general way it can be said that instead of trying to irradiate the complete layer of a substance in one exposure, as is done by those using a thin film or thin stream or by those who agitate while under the action of the rays, we only try to beneficially irradiate a relatively small portion, or, you might say, the surface of the layer or film and then mix the substance while it is away from the action of the rays and thereafter return it again for treatment, repeating the cycle for as many treatments as are necessary to give the results desired.”
Lines 17-39, Col. II, Page 5: “We have discovered that this cyclic method of giving a substance fractional or several properly timed short intermittent exposures (in place of one continuous exposure) for a given number of times and mixing between exposures gives us excellent results. We have found that with a given amount of active ray energy to be applied to a substance, the amount of beneficial effect imparted to a substance varies with the number of treatments given. We have also found that as a rule, the number of treatments to which a substance may be safely subjected depends upon the relation between the amount of treatment required to deleteriously affect the substance and the minimum amount of treatment necessary to produce a beneficial effect in said substance. If the time of each exposure is too long, or the amount of treatment too great, then one is obliged to reduce the number of exposures in order to avoid detrimental effects, and consequently the amount of beneficial effects will be less than if shorter exposures and more of them were used.”
Lines 44-59, Col. II, Page 5: “Likewise, the time intervals between exposures may be readily predetermined. This is particularly important in- sterilizing, because if the time intervals are too great it will enable bacteria to recuperate from the effects of any preceding exposure or exposures. We have found, as already stated, that the layer thickness used when the substance is presented for irradiation has a bearing on the number of exposures to be given and the time of each exposure. We have also found that the degree of mixing given between exposures will also vary the results. Thorough mixing between exposures gives the most accurate control of the amount of treatment and therefore the best results.”
67 F.Supp. 587..
Lines 62-75, Col. 2, Page 6, Lines: 1 and 2, Col. 1, Page 7:
“We have also found that when the irradiation is properly controlled we can produce in milk a substantial increase in the vitamin D effect with a single exposure of about 1/20 of a second. In one of these experiments the vitamin D content produced was ten units per quart with one exposure 1)4 inches from the ray source above described and in a layer of milk 3/32 of an inch thick ov.er an area of about twenty square inches. When we applied our cyclic method and exposed eight times with short exposures of 1/20th of a second each time, we obtain a substantial increase in the number of vitamin D units with each exposure and a high vitamin content at the end of eight exposures.”
Adams Electric Railway Co. v. Lindell Ry. Co., 8 Cir., 77 F. 432, 449; Bird v. Elaborated Roofing Co., 2 Cir., 256 F. 366, 373, 374; Baker Perkins Co. v. Thomas Roulston, Inc., 2 Cir., 62 F.2d 509, 513; Thompson v. Westinghouse El. & Mfg. Co., 2 Cir., 116 F.2d 422, 425; Carl Braun, Inc., v. Kendall-Lamar Corporation, 2 Cir., 116 F.2d 663, 665.
315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_sentence
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E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
COASTLAND CORPORATION, Appellee, v. THIRD NATIONAL MORTGAGE COMPANY, as successor to defendant John W. Murphree Company, Appellant, and Kenneth R. Larish and Grover C. Cauthen, Defendants. COASTLAND CORPORATION, Appellant, v. THIRD NATIONAL MORTGAGE COMPANY, as successor to defendant, John W. Murphree Company, Appellee.
Nos. 78-1418, 78-1420.
United States Court of Appeals, Fourth Circuit.
Argued March 5, 1979.
Decided Dec. 26, 1979.
Thomas P. Kanaday, Jr., Nashville, Tenn. (Robert D. Tuke, Farris, Warfield & Kanaday, Nashville, Tenn., Braden Vandeventer, Robert L. O’Donnell, Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for Third National Mortgage Co.
Philip G. Denman, Norfolk, Va. (James C. Howell, Willcox, Savage, Lawrence, Dickson & Spindle, Norfolk, Va., on brief), for Coastland Corp.
Before RUSSELL and WIDENER, Circuit Judges, and DUMBAULD, Senior District Judge.
United States District Court for the Western District of Pennsylvania, at Pittsburgh.
WIDENER, Circuit Judge:
Third National Mortgage Company (Mortgage Company or appellant), defendant in the action below, appeals from the decision of the district court holding that it breached an oral commitment to provide construction financing to Coastland Corporation for the construction of a condominium project. The district court awarded Coastland $620,650.00 in damages for the breach. The Mortgage Company contends that the district court erred both in finding that an oral commitment existed and in its award of damages. Coastland has filed a cross-appeal contending that the district court’s limitation of damages was erroneous. Jurisdiction in this case is based upon diversity of citizenship, 28 U.S.C. § 1332, and both parties agree, as they did in the court below, that the disposition of the issues raised on appeal is controlled by the law of Virginia.
Coastland brought suit in the district court against Third National Bank in Nashville; John W. Murphree Company, now Third National Mortgage Company (appellant); Kenneth R. Larish, President of Third National Mortgage Company; and Grover C. Cauthen, former Vice President of John W. Murphree Company, alleging that Third National Mortgage Company breached an alleged agreement made through Cauthen to provide construction financing to Coastland for the proposed construction of a condominium project to be known as the Schooner Point Condominium in Currituck, North Carolina. The district court either dismissed as to, or found for, Third National Bank, Cauthen and Larish. Those actions are not questioned on appeal. As noted, however, it entered judgment against the Mortgage Company.
The evidence adduced at trial includes the following. Coastland, a North Carolina corporation with its principal place of business in Virginia, was formed in 1970 and is engaged in the business of real estate development. In 1971, Coastland purchased approximately 600 acres of land approximately seven miles north of Duck and twenty-four miles north of Nagshead on the Outer Banks of North Carolina, for purposes of residential development. A master plan of development was prepared for this tract of land under the name Ocean Sands Subdivision. The plan included provisions for the construction of a condominium project to be known as the Schooner Point Condominium. This condominium project was envisioned as consisting of 134 units, with seventy-one units being constructed during the first phase of development.
James E. Johnson, Jr., President of Coast-land, and Gary G. Cowan, a former officer of Coastland, testified that in January 1974 Coastland began to seek financing for the first phase (71 units) of the Schooner Point project. Appellant was one of the institutions Coastland went to in search of financing. Johnson and Cowan testified that Coastland sought both construction and permanent financing for the project, and entered into discussions with Cauthen, who was acting on behalf of the Mortgage Company, for that purpose.
In connection with the seeking of financing for the condominium project, Coastland provided appellant with cost breakdowns, projected sales figures, estimated budgets, plans, legal documents and other information relating to the project. Johnson and Cowan testified that after the above documentation was supplied, appellant, acting through Cauthen, verbally agreed in May 1974 to provide Coastland with both construction and permanent financing for the first phase of the project.
The commitment to provide permanent financing to qualifying individual purchasers of the proposed condominiums was reduced to a written agreement dated June 26,1974. It was for a total of $3,100,000.00, and was to expire on December 31, 1975. Coastland agreed to pay a fee of $100,000.00 for the commitment for permanent financing. At the time Coastland accepted the permanent financing commitment, it paid appellant $50,000.00 in cash therefor, and issued a note for $50,000.00 payable on or before November 1, 1974 for the unpaid balance of the commitment fee. There are no contentions between the parties concerning either the existence or terms of the permanent financing commitment.
The verbal commitment to provide construction financing was not reduced to writing. However, Johnson testified that subsequent to Cauthen’s assurance in May 1974 that both construction and permanent financing would be available Cauthen called him by telephone to inform him that he, Cauthen, had worked out the details of the financing with Cowan. Cowan testified that the construction financing was to be in the amount of 2.2 million dollars at 4x/2 percent over the prime interest rate, and that the financing would be available for up to eighteen months. Cowan also testified that Coastland was to pay appellant a fee of $20,000.00 to $40,000.00 for the construction financing commitment, but this fee was never paid.
Both Johnson and Cowan testified that the construction financing commitment was not reduced to writing because of a tight banking situation precipitated by the collapse of the Franklin National Bank. They testified that several weeks after Cauthen assured them of construction financing, and prior to the issuance of the written commitment for permanent financing, Cauthen called Coastland to inform it that appellant’s parent company, Third National Bank, did not want it to make any commitments for approximately six months in order to improve its liquidity. Johnson and Cowan further testified that Cauthen related that because of this policy, funding for the construction financing commitment could not be immediately forthcoming, but that around January 1, 1975 funding for said commitment should be available. Cow-an testified that Cauthen said Coastland would be “on the top of the list and could go ahead and get [its] funding” in January 1975.
Subsequent to the just mentioned telephone conversation and the execution of the written commitment for permanent financing, in a letter dated July 5, 1974, from Cowan to Cauthen, Cowan stated, “As we discussed, the 12/31/75 commitment date [for permanent financing] may be a little tight, and you indicated you would grant a reasonable extension if the need arises.” At trial, Cowan explained the reference to the permanent financing commitment date of December 31, 1975 as being too tight as follows:
“Well, we had negotiated originally the terms of the permanent loan at the same time of the construction loan, and, therefore, we had set that date as a reasonable date because we intended to start construction in the immediate future, but the fact the construction loan now had been deferred for a period of six months we wanted to extend the period of the termination date of the permanent financing.!’
Johnson also testified that Coastland sought an extension of the termination date for the permanent financing commitment because appellant could not provide the construction financing at the time originally anticipated.
Cauthen did agree to extend the termination date of the permanent financing commitment from December 31, 1975 to September 1, 1976. In October 1974, Cauthen went to Coastland’s offices in Virginia Beach, where the extension of time for the permanent financing commitment was executed. At that time, $25,000.00 was paid on the promissory note that had been given for the balance of the fee for the permanent financing commitment. The time for payment of the remaining $25,000.00 balance was extended from November 1, 1974 to April 1, 1975, and a new promissory note was issued for the balance. Johnson testified that this new arrangement for paying the balance of the fee for the permanent financing commitment was adopted “because the permanent loan was extended because the construction loan was going to be provided later.” Additionally, both Johnson and Cowan testified that at this October 1974 meeting Cauthen reassured them that he thought the construction financing would be available in January 1975, and certainly no later than April 1975.
Johnson further testified that in early 1975 he contacted Larish, whom he understood to be the new president of appellant, to exercise the commitment for the construction financing loan. Johnson testified that Larish informed him that he would check into the matter and get back in touch with him, but never did. Johnson said that he tried to contact Larish numerous times via telephone, letter, and his attorney, but never received any response to his inquiries. Larish admitted that he did not respond to these inquiries of Johnson or his attorney.
Larish began his employment with appellant in February 1975. He testified that the construction financing matter first came to his attention in March 1975 during discussions with Cauthen, as well as after receiving a memorandum from Cauthen that discussed the matter. Larish further testified that Cauthen stated to him that he never “verbally or formally” committed appellant to provide Coastland with construction financing but, rather, made a single commitment to provide Coastland with permanent financing.
A number of internal memoranda sent between various employees of the Mortgage Company were introduced by Coastland which support its contention that appellant entered into a binding commitment to provide Coastland with construction financing. Cauthen sent a memorandum dated October 22, 1974 to Richard G. Keeran, then President of John W. Murphree Company, that concerned the Schooner Point project. Cauthen stated in that memo: “I am sure that you will agree with me that this is a fine piece of work on my part to have negotiated such a deal under this intense pressure in the worst money market anyone can remember. As the market begins to turn, I am confident that we can obtain back-up for our commitments from investors in the New Jersey area.” (Emphasis added) No explanation was offered by appellant at trial as to Cauthen’s reference to commitments in the October 22, 1974 memorandum, although opportunity to explain was offered. Cauthen also sent a memorandum dated March 18, 1975 to Larish that stated, in part: “When we originally issued our permanent loan commitment, we had hoped to provide construction financing, however due to market conditions, and our own shortages of funds, we were unable to come up with an interim loan commitment.”
Additionally, Larish sent a memorandum dated April 8, 1975 to Chip Stanley, then appellant’s capital asset manager, that stated, in part: “They [Coastland] paid $75,-000.00 in front end points for our take-out commitment and Grover [Cauthen] indicated to them [Johnson and Cowan] at the time that we would make the construction loan as well. Because we didn’t have ready funds to make this deal, Grover convinced them to just take the end mortgage commitment.” (Emphasis added) Larish testified that he was merely relating to Stanley what Johnson had informed him Cauthen had done and that at the time he sent the above memo to Stanley he assumed Johnson was correct in his assertions. He further testified that after checking into the matter he determined that Johnson was not correct in his assertion that Cauthen had assured Coastland that appellant would provide it with construction financing. But the district court did not accept this explanation.
In this same April 8th memo from Larish to Stanley, Larish further stated: “Would you please have Scott or J.P. dig into this case and acquaint us with all the facts and the genesis of the deal? If it can be solved by us getting a backup take-out commitment now, it might be a way for us to help them [Coastland] and get off the hook at the same time.” (Emphasis added) Regarding the quoted language, Larish testified, “The hook I was referring to is: We had when I got with the company over a hundred million dollars of commitments, 88 percent of which were condominium and land development loans. We were on the hook, to use that terminology, for over 50 million dollars of permanent loans on condominiums. We were trying to reduce that potential outstanding.” Again, the district court did not accept the explanation.
Based, in part, upon the testimony of Johnson and Cowan, which the court characterized as uncontradicted and unchallenged, as well as the above mentioned memoranda, the court determined that there was a binding agreement between the Mortgage Company and Coastland for appellant to furnish construction financing for the first phase of the Schooner Point Condominium project. As previously mentioned, the court awarded Coastland $620,-650.00 as damages for the breach of said agreement. The court arrived at the $620,-650.00 figure by allowing Coastland to recover one-half of its projected profits on the first phase (71 units) of the project; one-half of the expenses it incurred for architectural, engineering and legal services, as well as other expenses it incurred, in preparation for the construction of the first phase of the project; and the $75,000.00 it paid as a fee for the permanent financing commitment. Additionally, the court ordered appellant to surrender to Coastland the unpaid note for $25,000.00 that constituted the balance of the $100,000.00 fee for the permanent financing commitment.
I
Appellant contends the district court erred in finding that it made a commitment to provide Coastland with construction financing for the first phase of the Schooner Point Condominium project. This contention is vitiated somewhat by the fact that the Mortgage Company now acknowledges that the district court’s fact findings are supported by the record, leaving the definiteness of the terms of the contract and the measure of damages as its essential arguments. In any event, after considering the evidence of record, including the testimony of Johnson and Cowan and the memoranda mentioned above, we do not think the district court erred in finding that the Mortgage Company made a commitment to Coastland to provide it with construction financing. FRCP 52(a).
Appellant argues that a construction loan of the magnitude of the one at issue here would not have been so loosely entered into, especially without having been reduced to writing. However, as the Virginia Court stated in Twohy v. Harris, 194 Va. 69, 72 S.E.2d 329, 334-35 (1952), “While there is force to the argument, the fact that the parties did not reduce the agreement to writing was but a circumstance to be weighed... in determining whether the agreement was entered into.” And, as the Twohy court also stated, the absence of a written memorandum does not, of course, make Johnson’s and Cowan’s testimony as to the verbal contract incredible.
A related contention is the assumption that the Mortgage Company would not have entered into such a construction loan agreement absent an agreement in writing. No writing was executed, however, apparently because of the Mortgage Company’s parent company’s policy, adopted in June 1974, of not making any commitments for approximately six months. Appellant cites Atlantic Coast Realty Company v. Robertson’s Ex’r, 135 Va. 247, 116 S.E. 476, 478 (1923), for the proposition “that when it is shown that the parties intend to reduce a contract to writing -this circumstance creates a presumption that no final contract has been entered into, which requires strong evidence to overcome.” Assuming that a writing was contemplated, and the district court did not address the point, that case is subject to the qualification stated by the Court in Manss-Owens Co. v. H. S. Owens & Sons, 129 Va. 183, 105 S.E. 543, 547 (1921): “the mere fact that a written contract was contemplated does not necessarily show that no binding agreement had been entered into.” The court further stated:
“The whole question is one of intention. If the parties are fully agreed, there is a binding contract, notwithstanding the fact that a formal contract is to be prepared and signed; but the parties must be fully agreed and must intend the agreement to be binding. If though fully agreed on the terms of their contract, they do not intend to be bound until a formal contract is prepared, there is no contract, and the circumstance that the parties do intend a formal contract to be drawn up is strong evidence to show they did not intend the previous negotiations to amount to an agreement.”
Id., citing Boisseau v. Fuller, 96 Va. 45, 30 S.E. 457 (1898).
In the instant case, we think the evidence of record supports the district court’s finding that a binding verbal commitment- was given by appellant to Coastland to provide it with construction financing for the first phase of the Schooner Point project, and that any presumption to the contrary was overcome. We do not think the district court was clearly erroneous in its finding that appellant intended to be bound by its verbal commitment made through Cauthen. FRCP 52(a).
II
Appellant’s primary contention with regard to the existence of a binding agreement is that, even if a commitment was given to Coastland to provide it with construction financing, the terms of the agreement were so incomplete and uncertain so as to render such agreement unenforceable. It argues that a typical construction loan commitment would contain the following terms: amount of the loan; limitation of principal amount; term of the loan; options to extend; interest rate; computation of interest; prepayment penalties; identification of contractors and location of construction; closing agent; loan servicing arrangements; title insurance; construction performance bonds; architectural specifications to be complied with; filing responsibilities; collateral documents to be prepared; provisions for payment of expenses incurred; commitment fee; provisions for the release of individual units when sold; the manner of making disbursements; and special conditions. It contrasts the terms of the construction financing commitment as testified to by Cowan, i. e., amount— $2,200,000.00; term of the loan — 18 months; interest rate — 4V2 percent over an unspecified prime rate; and commitment fee— $20,000.00 to $40,000.00, with the above enumerated terms purportedly contained in a typical construction loan commitment, and argues that the construction financing commitment in issue here is too incomplete and uncertain to be enforceable.
Appellant relies upon Progressive Construction Co. v. Thumm, 209 Va. 24, 161 S.E.2d 687, 691 (1968), in which the court stated:
“It is fundamental that no person may be subjected by law to a contractual obligation, unless the character of the obligation is definitely fixed by an express or implied agreement of the parties. In order to be binding, an agreement must be definite and certain as to its terms and requirements; it must identify the subject matter and spell out the essential commitments and agreements with respect thereto. * * * ”
See also Parker v. Murphy, 152 Va. 173, 146 S.E. 254, 257 (1929), and Smith v. Farrell, 199 Va. 121, 98 S.E.2d 3, 7 (1957).
While it is true that a contract to be valid and enforceable must be complete and definite in its terms, “reasonable certainty is all that is required.” Smith v. Farrell, 199 Va. 121, 98 S.E.2d 3, 7 (1957). For, “[t]he law does not favor declaring contracts void for indefiniteness and uncertainty, and leans against a construction which has that tendency. While courts cannot make contracts for the parties, neither will they permit parties to be released from the obligations which they have assumed if this can be ascertained with reasonable certainty from language used, in the light of all the surrounding circumstances.” High Knob, Inc. v. Allen, 205 Va. 503, 138 S.E.2d 49, 53 (1964). See also McDaniel v. Daves, 139 Va. 178, 123 S.E. 663, 666 (1924). Additionally,
‘Where the relief sought is specific execution, it is essential that the contract itself should be specific. In other words, the certainty required must extend to all the particulars essential to the enforcement of the contract. But where there has been an entire breach, and compensation is asked in damages, it may be sufficient if there be certainty only as to the general scope and stipulations of the contract.’ Manss-Owens Co. v. H. S. Owens & Son, 129 Va. 183, 105 S.E. 543, 547 (1921). See also McDaniel, 123 S.E. at 666.
In the instant case, Coastland brought suit against appellant for damages, not specific performance. Accordingly, it is sufficient if there is certainty as to the “general scope and stipulations of the contract.” Manss-Owens, 105 S.E. at 547.
When the construction financing commitment is construed in the light of the surrounding circumstances, we do not think the court below erred in finding that it was sufficiently complete and definite to be valid and enforceable. Johnson testified that Cauthen informed him that he had worked out the details of the loan with Cowan. Cowan testified that the loan was to be in the amount of $2.2 million at 4V2 percent over the prime interest rate, and that the loan was to be available for up to eighteen months. Cowan also testified that Coast-land agreed to pay a fee of $20,000.00 to $40,000.00 for the construction financing commitment. Appellant introduced no evidence to show that the terms of the alleged agreement were different than those testified to by Cowan. In light of the fact this is a suit for damages and not specific performance, we think the terms testified to by Cowan were sufficiently complete and definite so as to render the construction financing commitment valid and enforceable.
Ill
Appellant also contests the district court’s award of damages for the breach of its commitment to provide Coastland with construction financing. Appellant contends the court erred as a matter of law in allowing Coastland to recover one-half of its projected profits on the first phase (71 units) of the Schooner Point project.
In allowing Coastland to recover one-half of its projected profits on the seventy-one units, the court recited the general rule of damages that, “[w]hen there has been a breach of a contract to lend money for a particular purpose, profits reasonably within the contemplation of the defaulting parties at the time the contract was made and which are lost by reason of the breach may be recovered, if capable of reasonable ascertainment.” Determining that profits were' reasonably within the contemplation of appellant at the time the construction financing commitment was given and that the projected profits were capable of reasonable ascertainment, the court awarded Coastland $482,750.00 in lost profits, such amount constituting one-half of Coastland’s projected profits on the seventy-one units.
Although the rule as above stated may be the general rule, it has a corollary that distinguishes between the recovery of lost profits when an established business is involved and the recovery of lost profits when a new business, venture, or enterprise, or one merely in contemplation, is involved. In Virginia, as in most other jurisdictions:
When an established business, with an established earning capacity, is interrupted and there is no other practical way to estimate the damages thereby caused, evidence of the prior and subsequent record of the business has been held admissible to permit an intelligent and probable estimate of damages.... But where a new business or enterprise is involved, the rule is not applicable for the reason that such a business is a speculative venture, the successful operation of which depends upon future bargains, the status of the market, and too many other contingencies to furnish a safeguard in fixing the measure of damages.
Mullen v. Brantley, 213 Va. 765, 195 S.E.2d 696, 699-70 (1973). To the same effect are Kay Advertising Co. v. Olde London Transportation Co., 216 Va. 273, 217 S.E.2d 876, 878 (1975); Pennsylvania State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372, 377 (1961); Sinclair Refining Co. v. Hamilton & Dotson, 164 Va. 203, 178 S.E. 777, 780 (1935).
Thus, “where the business which is interfered with or prevented as a result of a breach of contract is a new or unestablished nonindustrial business, or one merely in contemplation, the anticipated profits from such business cannot be recovered, for the reason that it cannot be rendered certain that there would have been any profits at all from the conduct of such business.” Sinclair Refining Co. v. Hamilton & Dotson, 164 Va. 203, 178 S.E. 777, 780 (1935).
In Pennsylvania State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372 (1961), the court reversed a jury’s award of damages because the jury wrongfully considered loss of anticipated profits in arriving at its award. Plaintiff had brought suit for a breach of contract that involved the lease of a service station yet to be constructed. Evidence was offered by plaintiff and others on anticipated profits from the station’s operation. Although plaintiff was an experienced service station operator who successfully operated some fourteen service stations, the court held that anticipated profits based on the estimated number of gallons of gasoline that would be sold at the intended new service station site were not recoverable. The court stated:
Such estimates cannot be made with any degree of certainty for a new business, since they are purely speculative and existing only in anticipation. The successful operation of a gasoline filling station business depends upon many factors, such as the personality of the operator and the service rendered by him and his employees, the popularity of the brand of gasoline sold, the condition of the market, and many other contingencies.
Id. 120 S.E.2d at 378. Thus, the court held plaintiff’s proper measure of damages was the value of the lease in excess of the agreed rent for the term and any expenses or costs which the plaintiff may have reasonably incurred under the contract.
And, in Mullen v. Brantley, 213 Va. 765, 195 S.E.2d 696 (1973), the court again reversed an award of damages that included anticipated profits from the contemplated operation of a Shakey’s Pizza Parlor, despite the fact plaintiff was a successful franchise operator. The court stated:
In the present case it was impossible to determine the profit, if any, Mullen would have derived from the operation of a Shakey’s Pizza Parlor if he had established it on or near the Duke Street site.. Even though Shakey’s Pizza Parlors are a part of a national chain, the establishment of such a pizza parlor at or near the Duke Street site would nevertheless have been a new business. The profits derived from the Annandale, Hybla Valley and Rockville franchises and the national average of all Shakey’s Pizza Parlors, do not represent a reasonable basis upon which to judge with any degree of reasonable certainty what the profits would have been if Mullen had operated a Shakey’s Pizza Parlor at the Duke Street site. The amount of business Mullen would have had at the Duke Street site, and the anticipated profits therefrom, could have been based only on speculation and conjecture.
We hold that Mullen’s proper measure of damages could not be based on loss of anticipated profits from an unestablished business.
Id. 195 S.E.2d at 700.
In the instant case, there is no doubt but that the Schooner Point Condominium project was a new venture or enterprise. Although Coastland has been in business since 1970, the Schooner Point project constituted a new endeavor. See Mullen and Pennsylvania State Shopping Plazas, supra. Consequently, the profits Coastland anticipated could only have been based upon speculation and conjecture. This is so because such business is an adventure, the successful operation of which depends upon future bargains, states of the market, and on too many other contingencies.
Coastland has not attempted to distinguish the new business line of cases from the case at hand. Rather, Coastland argues, based on the general rule of damages, that since appellant was given documentation that included Coastland’s projected profits on the seventy-one units, appellant was aware of Coastland’s potential profits and therefore should be liable in damages for the loss of those potential profits.
As the cases set forth above point out, there is a corollary to the general rule of damages that may be summarized as follows: When the business that is interfered with as a result of a breach of contract is a new business or venture, or one merely in contemplation, the anticipated profits from such business, cannot be recovered as an item of damages because it cannot be rendered reasonably certain that there would have been any profits at all from the conduct of the business. The fact Coastland supplied appellant with documentation that included Coastland’s projected profits on the seventy-one units does not make it certain that there would have been any profits at all from the sale of the seventy-one units. Accordingly, the district court’s award to Coastland of one-half of its anticipated profits on the sale of the seventy-one units is reversed.
IV
Appellant also contends that the balance of the court’s damage award was arbitrary and capricious. Its primary contention is that the court erred in including as an element of damages one-half of the architectural, engineering and attorneys’ fees incurred by Coastland prior to the time the construction financing commitment was given. Appellant also asserts that the court’s inclusion of the permanent financing commitment fee as an element of the damage award was erroneous. We disagree.
A portion of the architectural, engineering, legal and other expenses incurred by Coastland in preparation for the construction of the project was incurred prior to the time appellant agreed to provide Coastland with construction financing. Appellant argues that such expenses were not properly included as an element of damages for breach of contract since those expenditures were not made in reliance upon the contract.
“[0]ne injured by the breach of a contract to which he is a party is entitled to recover special damages which arise from circumstances peculiar to the particular case, where those circumstances were communicated to, or known by, the other party at the time the contract was made; that is, he may recover such damages as are the reasonable and natural consequences of the breach under the circumstances so disclosed and as may reasonably be supposed to have been in the contemplation of both parties.”
22 Am.Jur.2d, Damages § 59, at p. 90. See also 22 Am.Jr.2d, Damages § 69, at pp. 103-04. As previously mentioned, in the instant case, appellant was provided with documentation at the time Coastland applied for construction and permanent financing that included Coastland’s expected total expenditures for architectural, engineering and legal services, as well as other expenses, for the construction of the Schooner Point Condominium project. Consequently, appellant was aware that those expenses were or would be incurred by Coastland and, further, that a breach of its commitment to provide the construction financing might cause Coastland to suffer damages in the amount expended for such services. Without contradiction, and prior to the time such financing became generally unavailable, Coastland rejected offers by others to provide construction financing after the commitment from the Mortgage Company was made. In light of the above, we do not think the district court erred in including expenditures made by Coastland prior to the time the construction financing commitment was given when awarding Coastland one-half of the expenses it incurred in preparation for the construction of the project as damages for the breach of said commitment.
Appellant also contends the district court erred in including the fee for the permanent financing commitment in its award of damages for the breach of the commitment to provide construction financing because appellant never breached its commitment to provide the permanent financing and, in fact, remained ready to provide such financing through the termination date of the commitment. Appellant argues it earned the fee upon the making of the commitment and holding the commitment open through its term.
The evidence of record shows that Coast-land went to appellant seeking both construction and permanent financing. The evidence is that the permanent financing was of no value to Coastland without the construction financing. Additionally, both Johnson and Cowan testified that after appellant informed them that the funding for the construction financing commitment would not be immediately available, Coast-land attempted to secure construction financing elsewhere, but was unsuccessful because of the then existing tight banking situation. Appellant’s breach of its commitment to provide Coastland with construction financing, in conjunction with Coastland’s inability to obtain construction financing elsewhere, did, in a very real sense, render the permanent financing commitment worthless. Accordingly, we are of opinion the district court did not err in including the fee Coastland paid for the permanent financing commitment as an element of Coastland’s damages for appellant’s breach of its commitment to provide construction financing.
In sum, aside from the court’s award to Coastland of one-half of its projected profits on the sale of seventy-one units, we find no merit in appellant’s contentions that the court acted arbitrarily or capriciously, or erroneously as a matter of law, in its award of damages.
V
Coastland has filed a cross-appeal to the district court’s award of damages. It contends that the court erred in awarding Coastland only one-half of the architectural, engineering, legal and other expenses it incurred in preparation for the construction of the Schooner Point project, and in not awarding Coastland interest on the $75,-000.00 it paid to appellant as part of the fee for the permanent financing commitment. We think Coastland’s contentions are without merit.
“When, as in the present case, a defendant is liable for some damages for breach of contract and no evidence is available to show the exact amount, the quantum may be fixed when the facts and circumstances are such as to permit an intelligent and probable estimate thereof.” M&B Construction Co. v. Mitchell, 213 Va. 755, 759, 195 S.E.2d 873, 877 (1973). When describing the total expenses Coastland incurred in preparation for the construction of the project, the court noted that “probably some of the information may yet be used.” It then concluded that considering all of the facts and circumstances in the case, Coastland should be awarded one-half of its expenses as an item of appellant’s breach of contract. As we do not think the court erred in this regard, we do not think the court abused its discretion in concluding that on the facts of this case Coastland should only recover one-half of its total expenses.
Likewise without merit is Coast-land’s assertion that the court erred in not awarding it interest on the $75,000.00 that Coastland paid to appellant for the permanent financing commitment. So far as is relevant to this case, whether to allow Coastland interest on the $75,000.00 was in the sound discretion of the district court. Va.Code § 8.01-382. See Doyle & Russell, Inc. v. Welch Pile Driving Corp., 213 Va. 698, 194 S.E.2d 719, 723 (1973) (interpreting a predecessor statute). We think the denial of interest by the district court was well within its discretion.
Accordingly, on remand the judgment of the district court will be reduced by $482,-750.00, the amount of anticipated profits included therein; otherwise, it is in all respects affirmed.
Each side will bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
. Initially, the Mortgage Company also contended that the district court erred in its determination that Virginia’s Statute of Frauds did not apply and in its admission of parol evidence to prove the existence, conditions and terms of the alleged commitment. However, these contentions were abandoned.
. Johnson and Cowan also testified that during said telephone conversation Cauthen stated that appellant would have no objections if Coastland wanted to try and obtain construction financing elsewhere since appellant could not fund the project immediately. Both Johnson and Cow
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_genapel2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
In re ALTON R. CO. GIBBONS v. GARDNER.
Nos. 9251, 9252.
Circuit Court of Appeals, Seventh Circuit.
Jan. 24, 1947.
Thomas Dodd Healy, of Chicago, Ill. (Louis Boehm, of New York City, of counsel), for appellants.
Anan Raymond, Tappan Gregory, Robert L. Hunter, and Carl A. Waldron, all of Chicago, Ill., Fred N. Oliver, Willard P. Scott, and Delano Andrews, all of New York City, and Kenneth F. Burgess, Douglas F. Smith, George Ragland, Jr., and Luther M. Walter, all of Chicago, Ill. (Oliver & Donnally, of New York City, and Sidley, Austin, Burgess & Harper, of Chicago, Ill., of counsel), for appellees.
Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
MAJOR, Circuit Judge.
This appeal involves five orders of the District Court entered in the Alton Railroad Company reorganization proceedings under. Sec. 77 of the Bankruptcy Act, Title 11 U.S.C.A. § 205 et seq. The orders were entered October 21, November 13,. November 15 (only a portion of this order is appealed from), November 22 and November 27, 1946.
Appellants are a committee asserted to represent a substantial majority of all security holders participating in the Plan of Reorganization, who’ by permission, of the court intervened in the proceedings April 1, 1943. The Plan of Reorganization, after certification by the Interstate Commerce Commission and approval by the court, was submitted to and accepted by the requisite security holders and confirmed by the court on October 21, 1946. The essential purpose to be accomplished by the Plan is a sale of the debtor’s property to the Gulf, Mobile and Ohio Railroad Company (sometimes referred to as G. M. & O.), with that company issuing securities in exchange for distribution to the debtor’s bondholders. Other railroads were included in the reorganization setup, namely, the Kansas City, St. Louis and Chicago Railroad Company, the Joliet and Chicago Railroad Company, and the Louisiana and Missouri River Railroad Company.
All the orders appealed from were entered subsequent to the confirmation of the Plan by the court and have to do with its consummation. It appears unnecessary, therefore, to describe the provisions of the Plan other than those directly relevant to and concerned with such orders. While the contested issues are stated by the respective parties in numerous ways, we think the overall issue, succinctly stated, is whether the court exceeded its authority in entering the orders complained of.
The provisions of the Plan so far as material to the instant controversy may appropriately be noted at this point. Under the heading of “Reorganization Managers,” it provides:
. “There shall be - three reorganization managers, one of whom shall be designated by the Stephen B. Gibbons protective committee for holders of refunding-mortgage 3-percent bonds due October 1, 1949, of The Chicago and Alton Railroad Company, one by the Mutual Savings Bank Group and The Equitable Life Assurance Society of the United States, jointly, and one by the Thorvald F. Hammer independent committee for holders of 6-percent guaranteed preferred stock of the Kansas City, St. Louis and Chicago Railroad Company, all subject to the approval of the court; provided, however, that if the court shall find that at the time of designation either of the committees named has ceased to hold or to represent a substantial interest in' the property, the court may in its discretion designate in lieu of such committee. Should any of the parties named fail to make such designation within such time after confirmation of the plan and notice as the court shall consider reasonable, the court shall appoint the reorganization manager whom such party was entitled to designate. If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court. In case of failure of any party to designate any such successor within such time as the court shall consider reasonable, such successor shall be designated by the court.”
At this point, we note that there is no finding by the court or any contention that those authorized by this provision to designate managers had “ceased to hold or to represent a substantial interest in the property,” or that they failed to make such designation within such time “as the court shall consider reasonable,” or that they failed in case of vacancy to designate any such successor “within such time as the court shall consider reasonable.”
The Plan provides:
“Subject to limitations of law, including the limitations of subsection 77(c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power (a) to take all such action and to enter into such arrangements, financial and otherwise, as they may deem necessary or advisable in order to consummate and carry into execution the plan; (b) to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company; * * * (d) to provide the method by which creditors and other interested parties may participate in the plan, including the distribution of new securities of the reorganized Kansas City, St. Louis and Chicago Railroad Company and of the Gulf, Mobile and Ohio Railroad Company; * * * (f) to make subject to the approval of this court minor adjustments in details of the plan as they may deem advisable; and (g) to construe the plan.”
The Plan further provides:
“Any construction of the plan by the reorganization managers on advice of counsel shall, subject to the approval of the court, be conclusive. The reorganization managers shall, however, exercise only such powers as shall be necessary to carry out the plan in accordance with its provisions subject to the direction of the court * * *. The reorganization managers * * * may employ such agents, attorneys, and others as they may deem desirable to carry out the plan, and may delegate to others any powers or discretion conferred upon them, and no reorganization manager shall be liable for any action taken by him in good faith * * *.”
The Plan also provides “the carrying out of the plan shall be under the direction and supervision of the court,” and under a heading, “Construction of the plan,” provides :
“The construction of the plan by the court, whether before or after submission of the plan to creditors and stockholders shall be final and conclusive. The court, whether before or after submission, may cure any defect, supply any omission, or reconcile any inconsistency, in such manner or to such extent as may be necessary or expedient in order to carry out the plan effectively.”
Appellants in their brief enumerate at great length the “important functions, powers and discretions lodged in or to be exercised by the reorganization managers in carrying out and implementing the plan,” with which it is asserted appellants, on behalf of the security holders represented by them, are vitally concerned. On the other hand, appellees seek to minimize the importance of the duties and obligations with which the managers were vested. We are of the view that we need be little concerned with whether the duties and responsibilities which the Plan imposed upon the managers are as important as claimed by appellants or as insignificant as asserted by appellees. Whatever be the merits of the controversy in this respect, there is no escape from the fact that the manner of designating the reorganization managers, as well as their duties, rights and responsibilities, is definitely fixed by the Plan, certified by the Commission, assented to by the creditors, and confirmed by the court.
This brings us to a consideration of the orders complained of. On October 21 (the same date the Plan was confirmed by the court), the court entered the first order complained of, as follows:
“On the Court’s own motion, It Is Ordered That:
“(1) Henry A. Gardner, Trustee of the properties of the Debtor, be, and he hereby is, authorized and directed, to put into effect and carry out the Plan of Reorganization heretofore approved and confirmed by this Court, under the direction and supervision of this Court; and
“(2) The trustee be, and he hereby is, authorized and directed to employ Messrs. Sidley, Austin, Burgess & Harper as counsel to so put into éffect and carry out the Plan * *
On or prior to October 18, 1946, the names of the designees of the three groups authorized by the Plan to designate reorganization managers were submitted to the court. Immediately after, the entry of the order of October 21, the court announced from the bench its refusal to approve such designees for the reason that they were residents of New York, although they were “unquestionably men of high standing and men of ability.” The court at the same time announced:
“Now, I have directed the Trustee to take the steps necessary to put the plan into execution. It is my desire that that be done forthwith. * * * Accordingly I take it it will be unnecessary for the reorganization managers to employ counsel unless some extraordinary situation may arise which makes that employment necessary * * * »
Thus at the very inception the court authorized and directed the debtor’s trustee to carry out the Plan, in direct contravention of the provisions of the Plan which expressly and specifically vested such authority and power in reorganization managers. Also at the same time the court directed the trustee to employ certain designated counsel, in violation of Sec. 205, sub. c (2), which authorizes the trustee to select his own counsel subject to confirmation by the court.
The parties authorized, by the-Plan to designate reorganization managers evidently for the purpose of avoiding delay acquiesced in the court’s refusal to approve nonresident managers. It is not necessary, therefore, to consider the action of the court in this respect. On October 24, October 29 and November 4, 1946, the Thorvald F. Hammer committee, the Mutual Savings Bank group and the Equitable Life Assurance Society jointly, and appellants, in conformity with their authority contained in the Plan, designated respectively John E. Gavin, Roy D. Keehn and A. Bradley Eben, all of Chicago, to act as reorganization managers. With these newly designated managers awaiting its approval, the court on November 13, 1946 entered the second order complained of. This order was entered upon the petition of Gardner as trustee and provided:
“(1) That the Trustee be, and he hereby is authorized and directed to exercise all powers of the reorganization managers under the Plan, pending their designation and approval.
“(2) That the Clerk of this Court be, and he hereby is authorized and directed to forward a copy of the said petition to the Interstate Commerce Commission, Washington, D. C., together with a copy of this order, for the fixing of the maximum limits of, allowance for said expenses and services in connection with carrying out and putting into effect the Plan of Reorganization herein.”
On November 15, 1946, twenty-two days after the designation of Gavin, seventeen days after the designation of Keehn and eleven days after the designation of Eben. the court entered an order reciting their designation as reorganization managers and approved their appointment, “provided that their exercise of authority under the Plan shall at all times be subject to the direction of this Court.” This order further recited the court’s action of October 21, 1946, authorizing and directing that the trustee employ “Messrs. Sidley, Austin, Burgess & Harper as counsel to put into effect and carry out the Plan of Reorganization,” and without a scintilla of proof, so far as the record discloses, that “substantial progress has been made in effectuating said Plan.” The reorganization managers were speqifically directed not to “employ other counsel or in any manner limit or impair the direction heretofore given to the Trustee and his counsel above named.” The portion of this order which limits the authority of the managers as contained in the Plan is involved in this appeal.
At this point it is pertinent to note that no question is raised on this record as to the honesty, integrity or ability of Eben, Keehn or Gavin to serve as reorganization managers. In fact, they are all well and favorably known members of the Chicago Bar. Why the court so long delayed the approval of their appointment is not disclosed. More than that, the court by its orders of November 13 and November 15 renewed the authority of the trustee and the court-appointed counsel to carry the Plan into effect. Moreover, the authority thus conferred upon the trustee and counsel was not withdrawn or diminished in any respect. In fact, the order of Noyember 15 approving the appointment of Eben, Keehn and Gavin was little more than a meaningless gesture for the reason that by the same order the court stripped them of all substance of power and authority which was theirs according to the provisions of the Plan. Furthermore, the reorganization managers were specifically forbidden to employ counsel, notwithstanding the fact that they were specifically authorized so to do by the Plan.
On November 22, 1946, the court entered the fourth order involved in this appeal. This order also recites that it is on the court’s own motion and provides that the court’s order of November 15, 1946 “approving the designations of certain persons as reorganization managers be, and it hereby is, vacated and suspended pending the further order of this court.” Like the other orders, it was also entered without hearing and without any reason assigned as to why the approval of the reorganization managers theretofore made was “vacated and suspended.” They had been designated strictly in accordance with the provisions of the Plan, and we think the court was without authority to summarily remove them, especially without cause and without an opportunity to be heard.
Notwithstanding the fact that the approval of these reorganization managers had been “vacated and suspended,” the court in the same order directed that they and the trustee file reports on or before November 26, 1946, “showing what each of them had done, is doing, and contemplates doing, to carry out and put into effect the plan of reorganization.” In conformity with this direction, such reports were filed and a hearing was had on November 26, 1946. These reports were considered and the testimony of one witness connected with the legal firm designated by the court to represent the trustee was heard. Much is said concerning these reports and the testimony of this witness, most of which we think is beside the point and immaterial to the issues raised on this appeal.
At the conclusion of the hearing, on November 27, 1946, the fifth order involved in this appeal was entered, which in a large measure supersedes the prior orders. In this order it is recited that on October 21, 1946, when the Plan of Reorganization was confirmed, “it appeared that there would be delay in the designation and approval of Reorganization Managers, and properly to progress the consummation of the plan, notwithstanding that delay, the Court directed the Trustee to employ counsel experienced in railroad reorganization matters, named by the Court, and proceed at once to initiate the steps necessary to the consmmation of the plan.” The order further recites in effect that when the reorganization managers were approved by the court, the trustee and his counsel had made such progress in the effectuation of the Plan that the reorganization managers were “directed by the Court not to employ other counsel, and to proceed with the exercise of their authority under the plan.” The order recites as the reason for the order suspending the order approving the reorganization managers that “delay was being encountered in taking certain steps essential to an expeditious reorganization, and that further delay was threatened.” The order also states:
“The plan of reorganization does not in terms deal with the particular circumstances and the emergency situation which has developed herein except by the provision that the Court may cure any defect and supply any omission necessary to carry out the plan effectively.”
Thus it appears that the court by this order attempted to justify its previous orders upon two grounds, (1) a fear that there would be delay in the consummation of the Plan, and (2) that at the time the managers were approved (November 15, 1946), the trustee and his counsel had made such progress in the effectuation of the Plan that it was unnecessary for the reorganization managers to employ counsel, as they were authorized to do under the Plan. We think the first ground is wholly without merit and that the second ground is beside the point. Obviously, there was no reason on October 21, 1946 (the same day the Plan was confirmed) for thinking that reorganization managers designated as provided by the Plan would delay its execution, yet on that very day the court provided a means of its own for the execution of the Plan, contrary to its plain provisions. It would also appear that there was no basis for charging the reorganization managers designated under the Plan with delay during the time required by the court to make up its mind as to whether it would approve their appointment. It would appear equally certain that they cannot properly be charged with delay even after their approval, in view of the fact that the court stripped them of their prerogatives as set forth in the Plan. Thus with their authority impaired to the point where it was doubtful if they had a right to perform any function, it is difficult to discern how they could have been reasonably expected to make any progress in the execution and carrying out of the Plan. That the court was anxious to see the Plan expeditiously put into effect is to be commended, but speed cannot be indulged in at the expense of the rights of parties as fixed by a Plan. Therefore, we think that i't is 'immaterial' to the issues raised on this appeal that the trustee and his counsel had made progress,'if such be the fact, in the carrying out of the Plan. It is no answer to the charge that their appointment was unauthorized and illegal.
Neither do we think there was an emergency situation which justified the course pursued by the court. If, .however, there was any emergency existing on November 27, it was of the court’s own making. . Neither do we agree that there' was any defect or omission in the Plan which justified the court’s action. In fact, the provisions of the Plan, so far as they relate to the issues before us are written in such plain, clear and unambiguous language as to leave no room for doubt as to their meaning.
The court in its order of November 27 directed “that John E. Gavin, William T. Faricy and Claude A. Roth be, and they hereby are appointed by the Court as Reorganization Managers under the plan of reorganization herein.” (Gavin was one of the original designees.) These Court’s designated managers were not appointed under the Plan; in fact, they were appointed in contravention of its specific terms. Assuming that the removal of Gavin, Keehn and Eben was proper (which assumption we think is not tenable), and that a vacancy thereby existed, the court again ignored the Plan, which clearly provided the manner in which successor-managers were to be designated. It provides:
“If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court.”
The court at the hearing on November 27 further demonstrated its displeasure for the provision in the Plan pertaining to the appointment of reorganization managers by stating:
“* * * the reorganization ‘ managers are- sort of vermiform appendices, without any useful function. But we have them, and we will get along with them if we can.”
Again we think that if the court entertained that view as to the reorganization managers, it should have been given effect at the time it considered the merits of the Plan, as a prerequisite to its approval. It is true, of course, that the court had the authority and -the duty, both under the Act and by the provisions of the Plan, to supervise its execution. Such authority, how-, ever, did not confer upon the court the right to substitute a means of execution of its own contrary to 'and- in derogation of the provisions of the Plan. The duties and responsibilities of the reorganization managers in the execution and carrying into effect its provisions were as definite and certain as those of the court in its supervisory capacity. And the fact that the court might have thought that its means was better or more advantageous to the interested parties than that provided by the Plan can furnish no excuse for depriving the reorganization managers of their duties and responsibilities. To think otherwise is to work an injustice upon the creditors whose required assent to the Plan was procured on its stated terms and conditions, including those for its execution. In this connection, it is pertinent to observe that the means for the execution of a Plan of Reorganization is a positive requirement of the Act. Sec. 77, sub. b (5).
We desire to make it plain that nothing said in this opinion is intended to reflect upon the court’s appointed counsel for the trustee, Messrs. Sidley, Austin, Burgess and Harper. The court evidently had great confidence in their ability to promptly and expeditiously carry the Plan into effect. So have we. Again, however, this is no answer to the contention that the orders complained of were unauthorized.
It may be well at this point to call attention to a few of the cases for the purpose of showing the limited authority which is given the court under Sec. 77, and particularly after a plan has been approved. In Palmer et al. v. Commonwealth of Massachusetts, 308 U.S. 79, 87, 60 S.Ct. 34, 38, 84 L.Ed. 93, the court stated:
“But the whole scheme of § 77 leaves no doubt that Congress did not mean to grant to the district courts the same scope as to bankrupt roads that they may have in dealing with other bankrupt estates.”
In Ecker et al. v. Western Pacific Railroad Corporation, 318 U.S. 448, 468, 63 S.Ct. 692, 705, 87 L.Ed. 892, the court stated:
“When examined to learn the purpose •of its enactment, section 77 manifests the intention of Congress to place reorganization under the leadership of the Commission, subject to a degree of participation bv the court.”
In Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co., 294 U.S. 648, 672, 55 S.Ct. 595, 604, 79 L.Ed. 1110, the court in referring to Sec. 77 stated:
“As outlined by that section, a plan of reorganization, when confirmed, cannot be distinguished in principle from the composition with creditors authorized by the act of 1867, as amended by the act of 1874.”
While we find no case exactly in point, numerous courts have construed the court’s authority in connection with the execution of a plan under Sec. 77 (B). This court, for instance, in In re Corona Radio & Television Corporation, 7 Cir., 102 F.2d 959, 963, held that the court was without authority to direct the execution of a plan in a manner inconsistent with its terms. To the same effect is In re Pilsener Brewing Co., 9 Cir., 79 F.2d 63, 68, and In re Diversey Building Corporation, 7 Cir., 141 F.2d 65, 68. It has also been held that a plan of reorganization is, when certified, approved, accepted and confirmed, in effect a binding contract between a debtor, the security holders and all other parties concerned. Downtown Inv. Ass’n v. Boston Metropolitan Buildings, Inc., 1 Cir., 81 F.2d 314; American United Life Ins. Co. v. Haines City, Fla., 5 Cir., 117 F.2d 574.
Counsel for appellees in their brief and argument in this court go even further than the court in attempting to justify the orders complained of. For instance, it is argued: “Particularly fresh in the Judge’s mind was the recent hearing on fees in connection with the approval of the Plan.” In this connection, it is pointed out that appellants filed with the Interstate Commerce Commission excessive claims for compensation and reimbursement of expenses. Assuming that such is the case, we think it is irrelevant to the orders under attack. If the purpose of such contention is to impugn appellants’ motive or integrity, it is sufficient answer to state that the application for fees referred to and the action of the Commission thereon took place long before October 21, 1946, when the Plan was approved by the court. Such activities certainly were as “fresh in the Judge’s mind” at that time as when he later entered the orders complained of. If there was anything in appellants’ previous conduct which indicated that it was undesirable that they be given the right under the Plan to designate the reorganization managers, it was a. matter for the court’s concern before the Plan was approved rather than subsequently. Furthermore, appellants appear to have played an important part in the formulation of the Reorganization Plan. The Commission in its report of April 25, 1946 stated :
“Counsel and the committee and its advisers, on and after April 17, 1945, concluded the negotiations which led to agreement with the Gulf, Mobile & Ohio on the terms of the plan, and took the lead; in proceedings which thereafter culminated in approval of the plan by the. Commission and the. court * *
Appellees further argue that the court properly exercised its discretion because appellants attempted to block the reorganization and circumvent Sec. 77, sub. c (12). At this point it is pertinent to recall that the court in its order of November 13, 1946 directed its clerk to forward to the Interstate Commerce Commission the petition of the trustee to prescribe maximum limits of 'expenses pursuant to Sec. 77, sub. c(12). The clerk complied with the direction of the court in this respect. Thereupon, New York counsel for the appellant Committee, under date of November 15, 1946, directed a letter to the Commission opposing the petition “on the ground that the Trustee has no power to put into effect and carry out the Plan.of Reorganization.” The letter also called attention to the provision of the Plan by which such power was lodged in the reorganization managers. On November 21, 1946, appellants by the same New York counsel filed with the Commission an answer to the trustee’s petition in which was set forth the provisions of the Plan as well as the orders complained of designed to show that the latter were entered without authority. It was asserted in such answer that the execution of the Plan by the trustee would be in violation of the Plan and would cast a serious doubt and cloud upon the title of the G. M. & O. and on other interested parties. 'It was also asserted that Sec. 77, sub. c(12), was without application because the Plan of Reorganization provided that the compensation and expenses of those employed in carrying out the Plan should be paid by the G. M. & O.
Appellees assert that by this action the appellant Committee “immediately undertook to block the required proceeding before the Interstate Commerce Commission,” and that “It will be seen that while pretending to name a Reorganization Manager to participate in the consummation of the Plan, appellant was actually moving to defeat the consummation of the Plan under and pursuant to the vital limitations imposed by subsection c(12) * *
Thus it will be observed that the attack which appellants sought to make before the Commission was substantially the same as that made here, that is, that the court was acting without authority and in contravention of the terms of the Plan. We are of the view that appellants were not only within their rights in attacking the orders of the court before the Commission but that they would have been derelict in their duty if they had failed to do so.
We have heretofore quoted the provision of the Plan conferring broad and exclusive powers upon the reorganization managers in the execution of the Plan. We repeat this provision, so far as material to the instant discussion. It provides:
“Subject to limitations of law, including the limitations of subsection 77 (c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power * * * to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company * *
Sec. 77, sub. c (12), provides, so far as here material:
“Within such maximum limits as are fixed by the Commission, the judge * * * may make an allowance, to be paid out of the debtor’s estate, for the actual_ and reasonable expenses * * * incurred in connection with the proceedings ana plan and reasonable compensation for services in connection therewith by trustees under indentures, depositaries and such assistants as the Commission with the approval of the judge may especially employ.”
It is true, as appellees assert, that the provision of the Plan imposing upon the railroad the obligation of paying the expenses incurred in the execution of the Plan is “subject to limitations of law, including the limitations of Sec. 77 (c) (12).” Obviously, this limitation in the Plan is of no consequence unless the statutory provision is controlling. We think it is not. The latter expressly limits the allowances to those payable “out of the debtor’s estate.” This fact is emphasized in Reconstruction Finance Corporation v. Bankers Trust Co., 316 U.S. 163, 166, 63 S.Ct. 515, 87 L.Ed. 680. In the instant case, the fees and expenses incurred are not to be paid out of the debtor’s estate. The Plan specifically provides that the compensation and expenses of those authorized to execute the Plan “shall be paid by the Gulf, Mobile & Ohio Railroad Company.” We must assume that there is nothing wrong with a plan containing such a provision; otherwise the Commission would not have certified and the court would not have approved it. We think the creditors and interested parties whose assents were necessary to the validity of the Plan are entitled to have this provision as well as others respected and put into effect.
We might go further and state that even though it be assumed that appellants' action before the Commission, taken in response to the trustee’s petition, was ill-advised, still there would be no basis for properly charging them with blocking the execution of the Plan. It cannot be said that their action was frivolous or not taken in good faith. Certainly the very least that can he said is that they presented a meritorious legal question, which they were entitled to do before the Commission as they have before this court. Furthermore, as already pointed out, the court entered upon a course contrary to the provisions of the Plan prior to appellants’ action now asserted to have blocked consummation of the Plan.
In conclusion, we regret to relate that the court below during the hearing on November 27, 1946, in discussing the provision of the Plan imposing upon the G. M. & O. the obligation of paying the compensation and expenses incurred in its execution, made inquiry as to whether the railroad was represented in court. Upon being informed that its general counsel was present, the court threatened it with contempt “if any engagement is made or if any payment is made by way of attorneys fees or expenses of attorneys or otherwise in and about this reorganization other than within maximum limits fixed by the Interstate Commerce Commission and approved within those limits by this Court.” In our opinion, this threat of contempt directed at the railroad was not only improper but without justification. After all, the G. M. & O. was merely taking over the assets of the debtor corporation; in effect it was the purchaser of those assets. It was solvent and we assume possessed of officials capable of attending to its business. It is doubtful if the court had any jurisdiction over its funds and certainly no authority over the railroad other than to supervise its part in the execution of the Plan. As already shown, the railroad was obligated to pay the expenses of carrying the Plan into effect. Even though there had been a serious legal question as to its obligation in this respect, which we think there was not, such a question could have been more appropriately decided in the traditional judicial manner than by threatened contempt.
The orders appealed from are reversed, with the direction that they be vacated and set aside and that the Plan of Reorganization approved by the court be consummated according to its terms and provisions.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
TRW, INC., Plaintiff-Appellant, v. ELLIPSE CORPORATION and Ford Motor Company, corporations, Defendants-Appellees.
No. 73-1348.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 12, 1974.
Decided April 22, 1974.
Lee N. Abrams, George N. Hibben, Chicago, Ill., Robert W. Poore, Cleveland, Ohio, for plaintiff-appellant.
Norman Lettvin, Chicago, Ill., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
CASTLE, Senior Circuit Judge.
Plaintiff TRW, Inc. appeals from an order dismissing its complaint against defendants Ellipse Corp. and Ford Motor Co. in an action seeking a declaratory judgment that claim 3 of Rhine patent No. 2,628,568 is invalid. TRW asserts on appeal that the lower court erred in dismissing the complaint for lack of jurisdiction and in the exercise of its discretion. Specifically, TRW contends that it is not bound under principles of res judicata by the finding in Ellipse Corp. v. Ford Motor Co. respecting the validity of claim 3 of the Rhine patent. TRW asserts that the jurisdictional elements of a declaratory judgment action are present, because a justiciable case or controversy, reflected in a viable, outstanding charge of patent infringement exists, and because effective relief to effectuate the judgment could be granted. Moreover, TRW maintains that it is an abuse of discretion to dismiss the action, since the issues have not been resolved as against TRW and since the entertaining of this suit would not result in “piecemeal” litigation of the claim’s validity. In the alternative, TRW argues that if this suit’s objective' is deemed designed to seek modification of the court’s mandate in Ellipse Corp. v. Ford Motor Co., this court should grant leave to the district court to evaluate the validity of the patent claim in light of the new evidence tendered by TRW and to reopen the merits of that case to effect relief, because the court was misled into sustaining the patent claim on an erroneous inventive feature. We have considered these issues, and we affirm the dismissal of the action.
This suit grew out of an earlier action, Ellipse Corp. v. Ford Motor Co., supra, in which Ellipse charged that power steering pumps manufactured or sold by Ford infringed the Rhine patent. The lower court sustained the validity and infringement of claims 1 and 3 of the patent,2 and this court affirmed the findings respecting claim 3. The Supreme Court denied certiorari, and the action is now pending in the district court on an accounting to determine damages.
TRW was not a named party in the prior suit, and its participation was limited to observing the district court proceedings and to filing amicus curiae briefs at the appellate level. However, TRW manufactured and sold to Ford approximately 35% of the power steering pumps held to infringe claim 3 of the Rhine patent. These pumps were sold pursuant to a contract in which TRW agreed to indemnify Ford for the costs of defending any accounting proceeding and for any judgment based on patent infringement by the pumps purchased from TRW.
TRW asserts that as it was not a named party in the suit of Ellipse Corp. v. Ford Motor Co., it was not bound by the findings of this court in that case respecting the validity of claim 3 of the Rhine patent, Philips Electronics and Pharmaceutical Industries Corp. v. Thermal and Electronics Industries, Inc., 450 F.2d 1164, 1170 (3rd Cir. 1971), and it is not barred from relitigating the validity of the claim. American Photocopy Equipment Co. v. Rovico, Inc., 384 F.2d 813 (7th Cir. 1967), cert. den., 390 U.S. 945, 88 S.Ct. 1030, 19 L. Ed.2d 1133 (1968). Ellipse does not contend that TRW was a party to the previous litigation; rather, it argues that TRW was in privity with Ford and is thereby barred from bringing this suit. “Where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal. ... A judgment is res judicata in a second action upon the same claim between the same parties or those in privity with them.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402, 60 S.Ct. 907, 917, 84 L.Ed. 1263 (1939); Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1876).
In most situations where privity has been found to exist, one or more of the following relationships are present between the privies: concurrent relationship to the same right of property, successive relationship to the same right of property, or representation of the interests of the same person. IB J. Moore, Federal Practice, ¶ 0.411 [1] (2d ed. 1948). These relationships are illustrated by the cases cited by Ellipse. Thus, in Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 37 S.Ct. 506, 61 L.Ed. 1148 (1917), the Supreme Court found that a company wholly-owned by another company was its privy, because the companies “represented precisely the same, single interest.” Id. at 298, 37 S.Ct. at 507. The same principle was applied by the Court in Sunshine Anthracite Coal Co. v. Adkins, supra, where the Court found privity between officers of the same government “so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation between that party and another officer of the government.” That holding was followed in Ma Chuck Moon v. Dulles, 237 F.2d 241 (9th Cir. 1956), cert. den., 352 U.S. 1002, 77 S.Ct. 559, 1 L.Ed.2d 547 (1957), where the court also held that privity existed between a father who brought a prior action on behalf of his sons and the sons themselves in a later action. In J. R. Clark Co. v. Jones & Laughlin Steel Corp., 288 F.2d 279 (7th Cir. 1961), and in Brunswick Corp. v. Chrysler Corp., 408 F.2d 335 (7th Cir. 1969), the second defendant had purchased the business assets of the unsuccessful party during or subsequent to the determination in the previous litigation to which he was held bound. Similarly, in Schnitger v. Canoga Electronics Corp., 462 F.2d 628. (9th Cir. 1972), the court found res judicata applicable where the declaratory judgment plaintiff was a prospective buyer of infringing products which the manufacturer had been enjoined from making available, thus presenting only a derivative, successive interest to the same property right. None of these relationships is applicable to the case at bar; certainly there is no question of representation of the interests of the same party, and furthermore, there is no relationship (either concurrent or successive) arising from the general doctrine of privity of estate.
Two other cases cited by Ellipse, Switzer Bros., Inc. v. Chicago Cardboard Co., 252 F.2d 407, 411 (7th Cir. 1958), and Jones v. Craig, 212 F.2d 187, 188 (6th Cir. 1954), illustrate the res judicata effect of participation in litigation by a nonparty whose interest is sufficiently closely related to the suit. In the former case, an indemnitor who retained the indemnitee-defendant’s counsel and controlled the litigation was held entitled to the benefit of the judgment for the indemnitee. In the latter case, a warrantor received the benefit of an earlier judgment in a case in which he jointly prepared the defense and shared its cost. It is well-established that one interest sufficient to bring a participating non-party within the conclusionary rule is a legal duty, right or interest dependent wholly or in part on a cause of action before the court for adjudication. IB J. Moore, supra, at 0.411[6]. Professor Moore explicitly suggests that a manufacturer-indemnitor who participates in the defense of a patent infringement suit against a dealer in the manufactured product would have sufficient interest under this principle to be bound by the resulting decree. Id. at n. 20. But the crucial distinction between this example and the cited cases and the case at bar is the extent of participation, for privity in the law of judicial finality usually connotes representation. TRW limited its role in the prior suit to observing the proceedings and to filing amicus curiae briefs. These are insufficient modes of participation to render applicable the doctrine of res judicata, Brown-Crummer Investment Co. v. Paulter, 70 F.2d 184 (10th Cir. 1934) ; 1B J. Moore, supra, and therefore TRW is not bound by the adjudication of the validity of the claim in Ellipse Corp. v. Ford Motor Co.
TRW contends that the jurisdictional requisites for a declaratory judgment exist in part because a justiciable controversy is created between a patent owner and the manufacturer of a product when the patent owner alleges infringement against one who has purchased the product from the manufacturer, even when no direct charge has been made against the manufacturer. The implication of the argument is that a real controversy was created between Ellipse and TRW as a consequence of Ellipse’s allegation of infringement against Ford respecting certain power steering pumps, some of which were manufactured by TRW. It is true, as this court stated in Sticker Industrial Supply Corp. v. Blaw-Knox Co., 367 F.2d 744, 747 (7th Cir. 1966), that under the Declaratory Judgment Act, justiciability exists if the alleged infringer or his customers or dealers have been notified of the patent owner’s claim. Accord, E. Borchard, Declaratory Judgments 807 (2d ed. 1941). But that contention begs a fundamental question of this appeal: When is the underlying charge of patent infringement adjudicated with sufficient finality to extinguish the justiciable controversy ?
This case markedly resembles Walker Process Equipment Co. v. FMC Corp., 356 F.2d 449 (7th Cir. 1966), in which a manufacturer of sewage equipment sought a declaratory judgment of the invalidity of a patent. The patent owner, FMC, had previously sued one of Walker’s customers, alleging infringement through the use of Walker equipment. The Fourth Circuit held that the patent was valid and not infringed. In the action for a declaratory judgment, this court affirmed because of the absence of an actual controversy, stating, “Whatever infringement charges were made in the . . . litigation were resolved, and the controversy between the parties terminated, by the judgment of the Court of Appeals.” Id. at 451. The court cited Aralac, Inc. v. Hat Corp. of America, 166 F.2d 286 (3rd Cir. 1948), for the proposition that a declaratory judgment cannot be maintained against a patent owner unless the plaintiff is in fact accused of infringement by the owner, and the court concluded, “In view of the fact that there are no outstanding charges by FMC of infringement by Walker or Walker’s customers, there is no justiciable controversy between the parties.”
TRW asserts that Walker and Aralac are factually distinguishable from the present case, because at the time of the filing of the declaratory judgment complaints, these patents were not being asserted as infringed by products manufactured by the declaratory judgment plaintiffs. In fact, however, FMC had formally charged Walker with active inducement of infringement in the prior case. Moreover, the gist of every justi-ciable controversy involving a patent owner and a manufacturer whose customer is sued is the implicit charge of active inducement to infringement or contributory infringement. Again, the issue in both Walker and the present case was the extinguishment, and not the creation, of a justiciable controversy. And the striking parallel between Walker and the case at bar is that in neither case did the patent owner make a charge of infringement against the manufacturer independently of the allegation against the customer.
TRW replies that in fact an implicit, independent charge of patent infringement was leveled against TRW by Ellipse by virtue of the allegation of infringement in Ellipse Corp. v. Ford Motor Co. which survives any termination in that suit and provides the jurisdictional basis for this action. TRW asserts that a claim of infringement against a product purchased and used without essential alteration by the customer necessarily embodies a claim of infringement against the manufacturer (in contrast with a claim of infringement arising out of the use of the manufacturer’s product in a process allegedly within the scope of the patent). We find this distinction unacceptably artificial and arbitrary. While it is true that the casein fibers, the manufacturer’s product in Aralac, were noninfringing except when used in an allegedly infringing process to convert the fibers and other ingredients into a new commodity, the manufacturer’s product in Walker, sewage digester stirrer equipment, was not likewise susceptible to myriad uses. Though the complaint in Walker may have been couched in terms of process infringement, it was actually directed against a product so specialized (unlike that of Aralac) as to have doubtful utility outside the process. Similarly, the charge here was directed against a particular customer’s specialized use of an infringing power steering pump. We conclude that where, as here, the charge of patent infringement is asserted against the use of a product by a particular customer, no independent charges of patent infringement unrelated to the litigation are implied.
TRW next contends that whereas the patent in Walker was held not infringed, Ford’s power steering pump was found to infringe Ellipse’s patent. Therefore, the “cloud” on TRW’s patent persists, and the controversy is not extinguished. However, the existence of a viable, outstanding charge of patent infringement is only an indirect measurement of a reasonable apprehension of liability, the “touchstone” for determining jurisdiction under the Declaratory Judgment Act. Sticker Industrial Supply Corp. v. Blaw-Knox Co., swpra, 367 F.2d at 747. Under the holding of the Supreme Court in Aro Manufacturing Co. v. Convertible Top Co., 377 U.S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964), there can be no apprehension of liability by TRW arising from the decision against Ford because judgment against Ford extinguishes the claim and bars a second suit against TRW on the same matter. Similarly, there can be no reasonable apprehension of liability respecting other claims, because no viable, outstanding charges of patent infringement survive the Ellipse Corp. v. Ford Motor Co. litigation.
TRW finally contends that even if there are no independent charges of infringement against it, a justiciable controversy still exists because, unlike Walker, the prior litigation has not yet been terminated by a final decree which is a binding adjudication between the parties. Therefore, because the court could reopen the case prior to entry of its final judgment at the close of the accounting, the jurisdictional predicate for this action is present. In In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994 (1897), the Supreme Court held that there could be no rehearing of the merits even though the reviewing court’s decision did not amount to a final judgment because of a pending accounting, unless the reviewing court had first granted leave. The case of Ellipse Corp. v. Ford Motor Co. was exhaustively litigated through an appeal in this court on the validity of claim 3 of the patent, followed by a petition for rehearing in this court as well as by both a petition for certiorari and a petition for rehearing in the Supreme Court. Further, even TRW concedes that the allegedly new evidence which it has obtained was either known or could have reasonable been known by Ford, precluding its use as a basis for a motion for a rehearing on the merits in an attempt to achieve a different result. Unlike Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475 (1922), there is no litigation arising from independent charges of patent infringement pending elsewhere which might undermine the lower court’s decision respecting the patent’s validity. Thus, whether the lower court’s decision is technically res judicata, Locklin v. Day-Glo Color Corp., 468 F.2d 1359 (9th Cir. 1972), or “law of the case” is somewhat of an academic question. On the facts presented here, the possibility of a rehearing on the merits is so extremely remote as to warrant the conclusion that the lower court’s decision is sufficiently final for purposes of extinguishing the controversy on which the viable, outstanding charge of patent infringement would have necessarily had to have been grounded.
Erroneously assuming that an actual controversy still exists, TRW further argues that effective relief predicated on a favorable decision could be granted, and therefore, a decision in favor of TRW holding claim 3 of the patent invalid would be more than a mere advisory opinion. As TRW points out, a most significant fact, critical to this appeal, is that the proceedings in Ellipse Corp. v. Ford Motor Co. are still pending on an accounting. TRW suggests, as an example of effective relief, that a court could require Ellipse to forego pursuit of any further effort to recover from Ford on account of any alleged patent monopoly. This request for this extraordinary form of relief from a prior decree is wholly unsupported; Direetoplate Corp. v. Huebner-Bleistein Patents Co., 44 F.2d 783 (7th Cir. 1930), is authority only for effecting rather than relieving a prior court decree. Rather, as the lower court presently noted, what TRW is really asking for is a modification of the decision previously entered in Ellipse Corp. v. Ford Motor Co. However, as the Ninth Circuit has held, a court of appeals is without power to transform an independent action into a motion to reopen a former judgment to permit further proceedings. Ma Chuck Moon v. Dulles, supra, 237 F. 2d at 243. Therefore, since we cannot stay the accounting and order the reopening of the merits of the decision in Ellipse Corp. v. Ford Motor Co., we agree with the conclusion of the lower court that a finding of invalidity of the patent at this time would be no more than an advisory opinion.
TRW suggests, too, that if it is allowed to proceed in this ease and to obtain a final judgment of patent invalidity, it could receive effective relief indirectly, because that judgment would be a basis on which Ford, a customer in privity with TRW, could properly seek leave to reopen the earlier case. We reject the distortion in the requirement of privity inherent in TRW’s litigation strategy. It is true that in Hart Steel Co. v. Railroad Supply Co., supra, the Supreme Court held that res judicata was applicable in the patent owner’s prior suit pending on appeal against the distributor of the manufacturer’s product when the patent owner lost a later-filed suit against the manufacturer of the accused product. But significantly, the manufacturer and the distributor in that case were but two manifestations of the same identity. In National Brake & Electric Co. v. Christensen, 254 U.S. 425, 41 S. Ct. 154, 65 L.Ed. 341 (1921), the Seventh Circuit had affirmed a holding of infringement and remanded for an accounting when the defendant, National Brake, petitioned to reopen the case to show that a final judgment in the Third Circuit had held the same patent to he invalid. This court decided against entertaining the petition, as its judgment was final, but the Supreme Court held that the petition should be treated as a request to the court to grant leave to the district court to reopen the case. Yet, unlike the case at bar, the defendant in that case alleged that it had been the substantial party in interest, though not the nominal defendant, in the Third Circuit action. Moreover, TRW incorrectly asserts that Ford on its own motion could present proof in the accounting proceeding of a decision in favor of TRW as a ground for excluding TRW pumps from the scope of the accounting. National Brake makes plain that Ford would have to apply in this court for leave to file a bill in the court of original jurisdiction in the nature of a bill of review, setting up the new matter as a bar to further proceedings. “Such applications are addressed to the sound discretion of the appellate tribunal, and should be decided on considerations addressed to the materiality of the new matter and diligence in its presentation.” Id. at 430, 41 S.Ct. at 156. We need not prematurely face this question not before us at this time. We only note in passing, because of its bearing on the court’s capacity to grant effective relief, that it seems somewhat dubious to assume that the material is either new or was diligently pursued, given the candid admission of TRW that Ford either knew or could have reasonably known about the material.
TRW finally asserts that effective relief could be granted because it manufactures a myriad of products, including many forms of pumps which might be considered similar or equivalent in design characteristics to those sold to Ford. We note that no charge of patent infringement has been made against such TRW products. Furthermore, TRW has not even attempted to demonstrate to the court that its other products so sufficiently resemble the pump at issue that an independent, viable charge of infringement could be inferred.
Even if jurisdiction were present, it would not have been an abuse of discretion for the district court to dismiss the declaratory action, contrary to TRW’s assertion. In E. Edelmann & Co. v. Triple-A Specialty Co., 88 F.2d 852 (7th Cir. 1937), cert. den., 300 U.S. 680, 57 S.Ct. 673, 81 L.Ed. 884 (1937), this court held that the Declaratory Judgment Act permitted an alleged infringer to test the validity of a patent, for “it was the congressional intent to avoid [the] accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to bring suit, after damage had accrued.” Id. 88 F.2d at 854. This was to prevent a patent owner from threatening a manufacturer’s customer with suit for infringement while avoiding suit by the injured manufacturer in merely failing to communicate a direct threat to the manufacturer. Sticker Industrial Supply Corp. v. Blaw-Knox Co., supra. The decision of the court to entertain a suit for a declaratory judgment is a discretionary one. Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321 (4th Cir. 1937). Only when the above policy of the Act is effectuated may the discretion of the court to hear an action be soundly exercised. Where there is a suit pending between the same parties or their privies in which the issue of infringement may be properly adjudicated, discretionary dismissal is appropriate, American Automobile Insurance Co. v. Freundt, 103 F.2d 613 (7th Cir. 1939), because the opportunity to litigate the issue is not denied to the manufacturer. Similarly, where a manufacturer is permitted to intervene in an infringement suit against the customer or where the in-demnitee-customer permits the indemnitor-manufacturer to control the litigation, discretionary dismissal is justified, because again a fair opportunity to litigate the issue has been given to the manufacturer.
In the present case, there is no showing that Ford refused to permit TRW to participate in the defense in the prior suit, that TRW petitioned for intervention in the earlier suit, or that other circumstances such as conflicting positions adopted by the manufacturer and the customer would have denied TRW a fair opportunity to litigate the issue it seeks to have adjudicated in the present case. See, Western Electric Co. v. Hammond, 135 F.2d 283 (1st Cir. 1943). Indeed, it appears that in this case, it was the manufacturer, not the patent owner, who studiously avoided a legal confrontation by limiting his participation solely to observing the earlier proceedings and to filing amicus curiae briefs. It would be perverse to permit the Declaratory Judgment Act, designed to effectuate lawsuits, to be manipulated into a device allowing the avoidance of real legal involvement in an earlier pending suit between the manufacturer’s customer and the patent owner, while permitting the manufacturer subsequently to collaterally attack aspects of the decision unfavorable to its position. Moreover, such action to obtain a judgment in order to reverse the prior court decision smacks of a race for res judica-ta, a variant of the procedural fencing which this court abhorred in Freundt. Finally, for reasons explained previously, since no effective relief could be granted even if a decision favorable to TRW resulted, the dismissal of the declaratory action would be warranted because it could serve no useful purpose. Cf., Chicago Furniture Forwarding Co. v. Bowles, 161 F.2d 411 (7th Cir. 1947). In that sense, the present case resembles the “piecemeal trial” condemned in Yellow Cab Co. v. City of Chicago, 186 F.2d 946 (7th Cir. 1951), which the court held was an advisory opinion to determine the effectiveness of a defense to be introduced in another proceeding.
TRW asserts, in the alternative, that if this action is deemed an attempt to modify the decision of the court in Ellipse Corp. v. Ford Motor Co., and if leave must be granted by this court to empower the lower court to alter its findings during the pendency of an accounting, such leave should be granted to prevent a “miscarriage of justice.” First, a stranger to the lawsuit, who apparently concluded that its interests were insufficiently involved in the suit to warrant even an attempt at intervention, does not have standing to challenge subsequently the findings of the court. Second, even if TRW had standing, this court is not empowered to transmute an independent suit into a motion to reopen a previous decision. Third, even if the alleged new evidence were presented by Ford, since that evidence was either known or could have reasonably been known to Ford, it is unlikely that this evidence would provide the basis for granting a petition for leave to the district court to rehear the merits of the suit. Fourth, there is no basis for claiming that Ellipse has repudiated the court’s decision in Ellipse Corp. v. Ford Motor Co.; on the contrary, in its response to TRW’s request for admissions, the company stated, “Ellipse admits all facts finally found or concluded by the Courts in the adjudication of Ellipse v. Ford, supra, and denies any and all requests that are contrary to, or which collaterally attack, the facts finally found or concluded in said previous adjudication.” Moreover, TRW’s claim that Ellipse Corp. misled the court in the prior action is totally unsupported by the record.
The judgment of the district court is affirmed.
Affirmed.
. U. S. Patent No. 2,628,568, entitled “High Pressure Pump,” was issued on February 17, 1953 to M. L. Rhine and was subsequently assigned to Ellipse Corp.
. Ellipse Corp. v. Ford Motor Co., 452 F.2d 163 (7th Cir. 1971), reh. den., (1971, unpub.), cert. den., 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972) (Douglas, J., dissenting), reh. den., 409 U.S. 898, 93 S.Ct. 99, 34 L.Ed.2d 337 (1972).
. 312 F.Supp. 646 (N.D.Ill.1969).
. The court also held that a mere economic interest, in the absence of a viable charge of infringement, was insufficient, in rejecting the argument that a manufacturer’s indemnity agreements with possible infringing customers, without more, gave it standing to maintain the action.
. FMC actually sued both .Walker and a customer in the earlier action. Walker was dismissed from the suit because it was not subject to process in that jurisdiction.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
BOBY v. ZURBRICK, District Director of Immigration.
No. 6256.
Circuit Court of Appeals, Sixth Circuit.
Dec. 16, 1932.
Ida Lippman, of Detroit, Mich. (Benjamin A. Rossin, of Detroit, Mich., on. the brief), for appellant.
Y. F. McAuliflie, of Detroit Midi. (Gregory H. Frederick, of Detroit, Mich., on the brief), for appellee.
Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.
PER CURIAM.
Appellant, George Boby, filed his petition for writ of habeas eorpus. He sought to be discharged from arrest under a warrant of deportation directing that he be deported to Roumania. lie did not challenge the right of the government to deport him, but insisted that Roumania was not the country “whence he came.” See section 20 of the Immigration Act of February 5', 1917, U. S. C., tit. 8, § 156 (8 USCA § 156).
At the hearing the District Court dismissed the writ. Appellant has preserved nothing for review. No bill of exceptions nor statement of evidence has been “authenticated” or “approved” by the trial judge. The record contains what purports to bo a stipulation, that at the hearing “United States Department of Labor File No. 55,717 was offered and received in evidence,” and a further stipulation that this record be certified to us and made a part of the record on appeal. What purports to be such a file has been sent to us, but it was not ordered to be sent either by the District Court or by this court. It bears no identification marks showing that it was ever considered by the District Court. Indeed, the record entries show only that the petition for the writ of habeas corpus was dismissed after it was read and after the attorney for petitioner had been heard. For the reasons indicated, this file No. 55,717 cannot be considered. Dukas v. Zurbrick, 56 F.(2d) 518 (C. C. A. 6).
The stipulation last above referred to also purports to set forth other evidence and proceedings before the District Court, but it cannot take the place of the authentication or approval by the trial judge necessary to make its contents a part of the record. Malony v. Adsit, 175 U. S. 281, 287, 20 S. Ct. 115, 44 L. Ed. 163; Metropolitan R. R. Co. v. District of Columbia, 195 U. S. 322, 332, 25 S. Ct. 28, 49 L. Ed. 219; Buessel v. U. S., 258 F. 811, 817 (C. C. A. 2). Annexed to this stipulation is the name and official title of the judge, but wo cannot assume that he signed the paper as an authentication or approval of it as a part of the record.
Because of the insufficiency in the record in the particulars indicated, the order of the District Court must be and is affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_direct2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Sven TVETER, an individual, doing business as SGT Enterprises, Defendant-Appellant, v. AB TURN-O-MATIC, a Swedish corporation, and Scandus, Inc., a California Corporation, Plaintiffs-Appellees.
No. 77-2299.
United States Court of Appeals, Ninth Circuit.
Dec. 4, 1980.
Jack M. Wiseman, San Jose, Cal., argued, for defendant-appellant.
George C. Limbach, Limbach, Limbach & Sutton, William Rochester, San Francisco, Cal., for plaintiffs-appellees.
Before BROWNING, Chief Judge, WALLACE, Circuit Judge, and CURTIS, District Judge.
Honorable Jesse W. Curtis, Senior Judge, United States District Court for the Central District of California, sitting by designation.
BROWNING, Chief Judge:
Appellant Tveter produces and distributes “Take-A-Turn,” a device for dispensing numbered tickets to persons awaiting service. Appellee AB Turn — 0—Matic produces “Turn-O-Matic,” a similar device performing the same function. The “Turn-O-Matic” device is distributed in the United States by appellee Scandus, Inc. It was first on the market. The district court held that appellant had infringed appellees’ patent and trademark rights, and that appellant had unfairly competed with appellees by simulating the appearance of the “Turn-O-Matic” and “palming off” appellant’s goods as those of appellees.
We reverse in part and affirm in part, concluding that the “Turn-O-Matic” device is unpatentable for obviousness, but that appellant violated appellees’ trademark rights and engaged in unfair competition in the marketing of “Take-A-Turn.”
I
Appellees’ “Turn-O-Matic” is a commercial embodiment of Ehrlund U.S. Patent No. 3,885,724, issued May 27, 1975, for a “Device for Tearing Off Pieces of a Certain Length from a Strip.” Appellant contends the Ehrlund patent was invalid under 35 U.S.C. § 103, which does not permit a patent to be issued
if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
The district court made findings on the factual issues identified in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966), as relevant to the determination of obviousness under section 103: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; and (3) the level of ordinary skill in the pertinent art.
The district court concluded that the device disclosed by the Ehrlund patent would not have been obvious to one skilled in the art and was therefore patentable-a conclusion of law. Sakraida v. Ag Pro, Inc., 425 U.S. 273, 280, 96 S.Ct. 1532, 1536, 47 L.Ed.2d 784 (1976).
In defending the court’s findings and conclusion, appellees argue that because of the statutory presumption of validity, 35 U.S.C. § 282, appellant bore “the heavy burden of persuasion by ‘clear and convincing’ proof of the alleged obviousness of the patented invention.”
The presumption of non-obviousness over the prior art rests upon the assumption that the patent examiner compared the claims with the prior art. The examiner did not have before him Ingram No. 1,704,-044, Burr & Davis No. 843,579, Osborn Nos. 3,173,601 and 3,229,876, Williams No. 3,098,-594, Beloud No. 2,361,528, Kingsbury No. 1,983,463, and Suk No. 1,575,081. As indicated below, these prior patents contain disclosures closer to Ehrlund’s device than those found in the patents considered by the examiner. This circumstance dissipated the presumption of validity. The burden of proof with respect to non-obviousness remained with appellees as claimants under the patent. Photo Electronics Corp. v. England, 581 F.2d 772, 775 (9th Cir. 1978); Deere & Co. v. Sperry Band Corp., 513 F.2d 1131, 1132 (9th Cir. 1975); Hewlett Packard Co. v. Tel-Design Inc., 460 F.2d 625, 628 (9th Cir. 1972).
The district court’s findings as to the content of the prior art are not in question. The court treated all of the prior patents relied upon by appellant as pertinent prior art.
The district court’s findings as to the differences between the prior art and the patented device consist primarily of listings of one or more respects in which a particular device disclosed in a particular prior art patent, separately considered, differed from the device disclosed in the Ehrlund patent. The differences are largely semantic-often relating more to the label attached to a particular element than to its function.2 In any event, the fact that each prior patented device differed in one or more respects from the Ehrlund device establishes only that the latter was not “identically disclosed or described” in previous patents, thus satisfying section 102 of Title 35. This is not enough to satisfy the requirement of section 103 that a patentable device disclose a non-obvious advance over the whole of the pertinent prior art.
Nor is the non-obviousness requirement satisfied simply because the article sought to be patented differs from the pertinent prior art taken as a whole. “[T]he mere existence of differences between the prior art and an invention does not establish the invention’s nonobviousness. The gap between the prior art and [the invention must be sufficiently] great as to render the system nonobvious to one reasonably skilled in the art.” Dann v. Johnston, 425 U.S. 219, 230, 96 S.Ct. 1393, 1399, 47 L.Ed.2d 692 (1976).
The district court found that the “skill of the average man in this art includes mechanical knowledge, knowledge of materials, and properties of materials, a mechanical ability to see how things fit together, and probably exposure to earlier model dispensers.” (Emphasis added). The emphasized phrase suggests a misapprehension of the law. There can be no doubt that the test for patentable invention is whether the innovation would have been obvious to a person of ordinary skill charged with complete knowledge of all pertinent prior developments, however much universal knowledge might exceed the knowledge actually possessed by the ordinary workman in the art. Walker v. General Motors Corp., 362 F.2d 56, 60 n.3 (9th Cir. 1966). Since such compendious knowledge is at best unlikely, in the usual case the inquiry must be hypothetical.
The district court’s findings recite testimony by the alleged inventor and by two experts that the patented device would not have been obvious either to them or to a person of average skill in the art even had they known of the prior art cited by appellant. Such testimony is of little value. “Obviousness” is not a simple factual conclusion drawn from the subsidiary findings of fact as a matter of ineluctable logic. “Obviousness” is a question of law, Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 280, 96 S.Ct. at 1536, a legal concept embodying the constitutional standard of invention.
An innovation is not necessarily patentable because it results in greater convenience and utility. To be patentable, an innovation must embody “invention”; and “invention” excludes adjustments, alterations, and improvements that could be expected to result from the exercise of the skill and ingenuity of a mechanic charged with knowledge of all that is disclosed in prior art. This is the exclusion expressed in section 103’s requirement that the innovation must not be “obvious” to such a person. Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 279, 96 S.Ct. at 1536.
The level of innovation required for patentability is especially high where the device is a combination of old elements, as here. Such a “mechanical combination must utilize a new principle or achieve a new result to cause it to rise to the status of invention.” SSP Agricultural Equipment, Inc. v. Orchard-Rite Ltd., 592 F.2d 1096, 1101 (9th Cir. 1979). “The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950). There must be “unusual or surprising consequences from the unification of the elements”; the old elements must perform an “additional or different function in the combination than they perform out of it.” Id. As we have repeatedly said, this is a “severe test.” See, e. g., Regimbal v. Scymansky, 444 F.2d 333, 339 (9th Cir. 1971); Santa Anita Manufacturing Corp. v. Lugash, 369 F.2d 964, 967 (9th Cir. 1966); Bentley v. Sunset House Distributing Corp., 359 F.2d 140, 144 (9th Cir. 1966). “Mechanical patents covering a combination of old elements must be scrutinized with care, since it is unlikely that such combinations will amount to patentable invention.” SSP Agricultural Equipment, Inc. v. Orchard-Rite Ltd., supra, 592 F.2d at 1101.
The Ehrlund “Turn-O-Matic” contains a roll of paper tickets numbered consecutively. The tickets are divided by a punched or perforated line across most of the width of the strip, leaving an uncut margin on both sides. The perforated or punched line is curved or angled toward the user at midpoint. As a ticket is pulled, it passes over a projecting flange having the same width as the flap or tongue. Downward pressure on the tape brings the uncut, unperforated margins of the tape in contact with cutting edges at each side of the flange, separating the ticket. The flap or tongue of the succeeding ticket, held level by the flange, projects from the dispenser for the next user to grasp.
Appellees’ claim of inventive difference in the Ehrlund device “is the guidance structure that cooperates without moving parts with the forwardly directed ticket tongue or flap to dispense intended tickets in a one-hand, one-step pulling operation in which the end ticket is separated from the roll leaving the ticket tongue of the succeeding ticket protruding from the dispenser ready to pull the next ticket.” Ap-pellees’ Brief, page 16.
Devices for severing and dispensing sheet material in predetermined lengths are old. Such devices commonly disclose means for guiding the material over a cutting edge for separation. Several employ a one-hand, one-step operation and have no moving parts.
In the final analysis, appellees’ argument for patentability over the prior art rests upon the interaction between the projecting flange and a ticket strip having flaps or tongues pointed in the feeding direction of the strip. Brief for Appellees, page 31. This development is not inventive over Burr & Davis No. 843,579 (1907), in light of Be-loud No. 2,361,528 (1944), or over the so-called “Baggie” patents, Osborn Nos. 3,173,-601 (1965) and 3,229,876 (1966) and Williamson No. 3,098,594 (1963).
Burr & Davis No. 843,579 (“Means for Holding and Detaching Ribbon Strip Labels”) discloses a rolled ribbon, divided into individual labels by perforated lines, wound inside the machine. The perforated cloth strip is pulled out and down over a frame or flange causing the perforations to tear, beginning in the center of the perforation, until a single label is separated. The outer casing or cover of the device has an inward curve over the flange that exposes a tongue-shaped portion of the succeeding label resting on the flange. By pulling this exposed tongue out and down over the flange, the next user may detach a label with a single motion. Burr & Davis cuts from the center rather than at the sides, and the next ticket, though exposed, does not protrude. But cutting at the sides and protrusion are found in Beloud No. 2,361,-528, a dispenser described as
leaving a portion of the next section of the material visible and accessible, in order to allow the operator to withdraw the material to the desired position which will permit a section to be separated from the main body of the material and to repeat the operation at will.
Under the “Baggie” patents, a rolled sheet of bags or plastic, divided by perforations, is drawn from a container across a cutting edge having a vertically projecting section at the center. When the perforated line is pulled over this projection or flange, the perforations tear and the forward motion of the next bag is arrested by the flange. Continued pulling completes the separation. The patent description specifies that after each bag is removed its successor protrudes:
During the act of severance, some small distortion of the sheet material takes place whereby the severed portions thereof on opposite sides of the arresting tab extend outwardly and the corner extremities are supported upon the angular edges of the guide tabs and thus restrained against dropping within the container and out of reach. In this manner the material of the roll (or otherwise packaged material) remains available for convenient grasping whereby withdrawal and severance of the next successive length may be accomplished.
Appellant argues that the Baggie device requires the user to lift the next bag over the projecting flange before it can be removed. This problem could be solved by curving or angling the line of perforations between bags to produce one or more tabs or tongues. Appellant recognizes that “[a] major difference between this prior art and the claims of the Turn-O-Matic patent is the construction of the ticket strip recited in the Turn-O-Matic claim.”
Because the description of the ticket strip is found in the preamble rather than in the body of the claims of the Ehrlund patent, the parties debate whether it is an element of the combination claimed by Ehrlund. It is unnecessary to resolve the issue. Based on the record before us, the essentials of the strip’s construction are in any event old in the art. Suk No. 1,575,081 (1926) claims:
A record strip comprising a signal [sic] oblong length of flexible fibrous material having equally spaced portions thereof scored transversely to provide a series of detachable sections, the scoring between adjacent sections extending along an irregular shaped line so that each section upon detachment will have at one end a projecting tongue.
Appellees contend the Ehrlund device meets the not “obvious” standard because the combination of old elements is “synergistic,” i. e., “result[s] in an effect greater than the sum of the several effects taken separately.” Anderson’s Black Rock v. Pavement Co., 396 U.S. 57, 61, 90 S.Ct. 305, 308, 24 L.Ed.2d 258 (1976). Appellees cite the following exchange with their expert witness:
Q. In your opinion, does the device of the patent produce a synergistic result?
A. Yes, it does, indeed. As I have already described it, it permits several things to happen at the same time. That is it permits a ticket, a single ticket, to be dispensed with one hand without moving parts other than the ticket strip itself in the casing, and in such a way that the next ticket is not touched by the person who pulls off the previous ticket, or anyone else for that matter.”
This description accurately mirrors Borden’s 1940 patent (No. 2,221,213) for a simple cellophane tape dispenser, cited as prior art by the patent examiner.
The Ehrlund combination is an improvement over previous devices in this field, “perhaps producing a more striking result,” Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 282, 96 S.Ct. at 1537. But it does not reflect the application of a new principle or the achievement of a surprising or unexpected result required to satisfy the severe test for patentability of a new combination of elements old in the art.
The projecting flange temporarily arrests the movement of the tape, separates the tongue from the tape, and guides the tongue horizontally toward the user as in Burr & Davis, the cutting edge severs the tape at the sides as in Beloud, the tongue of the succeeding ticket serves as a handle for the next user to grasp as in Suk, the elements combine to permit a single segment of the tape to be dispensed with a one-step pulling operation, without moving parts, as in Burr & Davis and the Baggie structure.
As we said in Kamei-Autokomfort v. Eurasian Automotive Products, 553 F.2d 603, at 609 (9th Cir. 1977), quoting our earlier decision in Rex Chainbelt Inc. v. Harco Products, Inc., 512 F.2d 993, 1000 (9th Cir. 1975): “What we have here is: ‘an improved product but not an innovatively different one . . . [W]e see the development and refinement of an old concept .. . but not an inventive or new approach to the problem.’ ”
The commercial success of the Ehrlund device “cannot fill the gap.” Exer-Genie, Inc. v. McDonald, 453 F.2d 132 (9th Cir. 1971). See SSP Agricultural Equipment, Inc. v. Orchard-Rite, Ltd., supra, 592 F.2d at 1101.
II
Trademark Infringement and Unfair Competition
The district court’s holding that appellant’s use of the name Take-A-Turn infringed appellees’ registered Turn-O-Matic trademark and that appellant had engaged in unfair competition by “palming” off appellant’s dispenser as that produced by ap-pellee are factually and legally unassailable.
Appellant was a distributor of appellees’ Turn-O-Matic ticket dispenser in an assigned territory for over seven years. He became dissatisfied with the relationship. When appellee introduced its new dispenser based upon the Ehrlund patent, appellant set about to copy it. In less than a month he had obtained quotations for the manufacture of a like dispenser from a producer of plastic products. He continued to distribute appellees’ Turn-O-Matic until his dispenser became available. About a year later appellant began distributing his dispenser under the name Take-A-Turn. Appellant’s dispenser is virtually identical with appellees’ Turn-O-Matic in operation, and is almost indistinguishable in appearance, even to the distinctive red color and the location and type-style of the trade name. Appellant’s advertising brochure for Take-A-Turn was copied from appellees’ Turn-O-Matic brochure. Appellant employed the same stock number he had previously used in the sale of Turn-O-Matic dispenser and parts. He sold the Take-A-Turn dispenser in the same territory in which he had previously sold the Turn-O-Matic, and to the same customers. Customers ordered Turn-O-Matic by name but were delivered Take-A-Turn.
Appellees’ evidence fully supported the district court’s findings that appellant’s Take-A-Turn trademark was likely to and did cause confusion, mistake, and deception as to the origin of the dispenser, that the appearance of appellees’ dispenser, copied by appellant, had acquired a secondary meaning identifying appellee as its source, and that appellant deliberately intended to pass his goods off as those of appellee. As a matter of hornbook law, these facts established both trademark infringement and unfair competition.
Appellant argues that “Turn-O-Matic” is descriptive of the use of appellees’ dispenser and is therefore a “weak” mark. Appellees respond that the mark has become “incontestable” under 15 U.S.C. § 1065, and therefore cannot be challenged on the ground that it is descriptive. Appellant answers that he is not challenging the validity of appellees’ mark but is asserting that because of the weakness of the mark there is no likelihood of confusion. The short answer is that even if this factor had the probative tendency appellant suggests, it was overwhelmed by appellees’ evidence that confusion was likely, intended, and occurred.
Appellant argues that because the name “SGT Enterprises” (under which Tveter conducted business) was printed on appellant’s dispenser there could have been no confusion as to source. Although proper labeling will usually preclude confusion, see American Roiex Watch Corporation v. Ri-coh Time Corp., 491 F.2d 877, 879 (2d Cir. 1974); Bose Corp. v. Linear Design Labs, Inc., 467 F.2d 304, 310 (2d Cir. 1972), the overwhelming evidence in this instance is that confusion did occur. Appellant cites West Point Manufacturing Co. v. Detroit Stamping Co., 222 F.2d 581 (6th Cir. 1955), but in that case the court found the labeling was in fact sufficient “to avoid confusing the public as to the producer or the source of the product”. Id. at 596. The court recognized that “when the imitation is likely to deceive prospective customers who care about source . .. the imitator is guilty of unfair competition.” Id.
Appellant was known in the trade as a distributor of appellees’ product. Under such circumstances, the addition of his own label “is an aggravation and not a justification.” Menendez v. Holt, 128 U.S. 514, 521, 9 S.Ct. 143, 144, 32 L.Ed. 526 (1888); see A. T. Cross Co. v. Jonathan Bradley Pens, Inc., 470 F.2d 689, 692 (2d Cir. 1972).
There was evidence that appellees used the mark “Turn-O-Matic” on their earlier dispenser together with the words “Patent Pending” when no patent application on this dispenser was in fact pending. Appellant argues that this misuse bars judicial enforcement of appellees’ trademark rights. But “misconduct in the abstract, unrelated to the claim to which it is asserted as a defense, does not constitute unclean hands.” Republic Molding Corp. v. B. W. Photo Utilities, 319 F.2d 347, 349 (9th Cir. 1963). “What is material is not that plaintiff’s hands are dirty, but that he dirtied them in acquiring the rights he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant.” Id. No relationship is suggested between appellees’ asserted misuse and the acquisition of appellees’ trademark rights; no other reason, arising out of the misuse, is advanced that would make it inequitable to enforce those rights.
Appellant argues that since appellees’ dispenser was not patentable, appellant had a right to copy it in light of Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). Under the rule of these decisions, however, copying may constitute evidence which, when accompanied by proof of confusion as to source or deliberate palming off, as in this case, may support a cause of action for unfair competition upon which appropriate relief may be founded. Compco Corp., supra, 376 U.S. at 238, 84 S.Ct. at 782.
Ill
Remedy
The judgment and the injunction issued pursuant to the judgment must be modified in light of our decision that the Ehrlund United States Patent 3,885,724 is invalid; that the trademark “Turn-O-Matic” is valid and infringed by the mark “Take-A-Turn;” that the configuration of appellees’ dispenser has acquired a secondary meaning reflective of its source, and that appellant has engaged in unfair competition by passing off appellant’s dispenser as originating from the same source as appellees’ dispenser. These adjustments are best left initially to the district court, but it may be helpful to comment upon two matters.
First, it is clear from the decisions in Sears, Roebuck & Co. v. Stiffel Co., supra, and Compco Corp. v. Day-Brite Lighting, Inc., supra, that an injunction against copying the configuration of appellees’ dispenser cannot be based upon California unfair competition law. This does not, however, preclude an injunction under state law that will prevent the palming off of appellant’s product as that of appellees, nor an injunction requiring that appellant’s product “be labeled or that other precautionary steps be taken to prevent customers from being misled as to the source.” Sears, Roebuck & Co., supra, 376 U.S. at 232, 84 S.Ct. at 789. See generally, Cal.Civ. Code § 3369; Tomlin v. Walt Disney Productions, 18 Cal. App.3d 226, 231-235, 96 Cal.Rptr. 118, 120-123 (Ct.App.1971); Components for Research, Inc. v. Isolation Products, Inc., 241 Cal.App.2d 726, 730-731, 50 Cal.Rptr. 829, 832 (Ct.App.1966).
The more difficult question is whether Sears and Compco preclude an injunction based upon § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) against copying the exterior design insofar as it incorporates nonfunctional features and has acquired a secondary meaning. See Truck Equipment Service Co. v. Freuhauf Corp., 536 F.2d 1210 (8th Cir. 1976); American Rolex Watch Corp. v. Ricoh Time Corp., supra, 491 F.2d at 879. The district court should reconsider this question free of the distracting assumption that an injunction against copying appellees’ device was in any event justified because of infringement of the Ehrlund patent. Even if such an injunction would not be barred by Sears and Compco, it could not be so broadly drawn as to preclude appellant from using a circular casing to enclose the circular roll of tickets, a common and essentially utilitarian feature of tape dispenser designs. See Application of Honeywell, Inc., 532 F.2d 180, 182-83 (Cust. & Pat.App.1976).
Second, the provision of the injunction requiring appellant to deliver up for im-poundment and destruction devices and materials infringing the Ehrlund patent or the “Turn-O-Matic” trademark will require reconsideration and modification for the same reasons. In addition, however, appellant contends this provision exceeds the pretrial stipulation of the parties that “[o]nly the remedy of injunction is sought.” Appellant objects on similar grounds to the requirement that appellant notify future customers that he does not sell products under the marks “Turn-O-Matic” and “Take-A-Turn.” But orders for impoundment or destruction and for issuing remedial notices are no less injunctive because they impose affirmative requirements to act. Neither provision imposes liability “for damages, costs, and attorney’s fees” in contravention of the parties’ agreement.
U.S. Letters Patent No. 3,885,724 is declared invalid. The judgment and injunction are vacated and the cause remanded for further proceedings consistent with this opinion.
. See note 6, infra.
. Burr & Davis No. 843,579 (“Means For Holding and Detaching Ribbon Strip Labels”) (1907); Ingram No. 1,704,044 (“Dispensing and Severing Device for Rolled Strip Material”) (1929); Beloud No. 2,361,528 (“Device to Sever Paper Sales Tax Slips”) (1944); Williamson No. 3,098,594 (“Container For Shipping, Storing and Dispensing Sheet Material in Predetermined Lengths”) (1963); Obsorn No. 3,173,601 (“Dispensing Sheet Material in Predetermined Lengths”) (1965); Osborn No. 3,229,876 (“Dispensing Sheet Material in Predetermined Lengths”) (1966).
. Burr & Davis No. 843,579; Ingram No. 1,704,-044; Beloud No. 2,361,528.
. Burr & Davis No. 843,579; Williamson No. 3,098,594; Osborn No. 3,173,601; Osborn No. 3,229,876.
. None of these references was cited by the examiner, who relied instead upon four less pertinent patents. Borden No. 2,221,213 (1940) discloses a dispenser permitting the user to tear off a piece of any length desired from a roll of adhesive tape. Burcz No. 3,007,619 (1961) discloses a similar dispenser for thick tapes that are difficult to tear, such as plastic electricians’ tape. Kunsch No. 3,088,640 (1963) is a variation of the standard aluminum foil box, having several large teeth on the cutting edge so that foil may be either torn off or perforated, or both, at any intervals desired. German Application Disclosure No. 1,218,492 (German Federal Republic 1966) discloses a device for separating punched data processing tape and at the same time marking the direction in which the tape is traveling.
. The district court found that Burr & Davis No. 843,579 “does not disclose a flange for temporarily arresting movement of the ticket tongue that is directed in the feeding of the strip as specified in” the Ehrlund patent. Whether or not any portion of the projecting separation edge of the Burr & Davis device is called a “flange,” the Burr & Davis patent discloses a guiding means that arrests the tape, allowing separation. Similar semantic distinction clouded the district court findings as to Beloud No. 2,361,528 and the “Baggie” patents, all of which disclose arresting mechanisms.
. Claim 1 of the Ehrlund patent, for example, reads:
A device for tearing off pieces of the same predetermined length from a roll of fed flexible strip, said strip having punched lines forming tongues equally spaced along said strip with their spacing equal to said predetermined length and directed in the feeding direction for said strip, whereby the portion of each tongue which is firmly connected to the remainder of the strip is perpendicular to the longitudional direction of the strip, said device comprising a casing for said strip roll, said casing having side walls and an open top, a cover pivotally connected to said casing and closing said top, said cover having an outwardly extending portion, another portion integral with the first-mentioned portion and extending in a downwardly direction relatively to the cover, said casing having a portion extending substantially parallel to the first-mentioned portion but spaced therefrom to form a gap for the passage of the strip out of the casing, a flange for temporarily arresting movement of said tongue integram with the third-mentioned portion and extending close to the second-mentioned portion but spaced therefrom to form a gap for the continuing passage of the remainder of the strip, and tear-off portions on either side of said flange connecting the base of said flange to the side walls of the casing arranged for the cut-off to the remainder of the strip.
(Emphasis added.)
. Marston v. J. C. Penney Co., 353 F.2d 976, 986 (4th Cir. 1965); Stradar v. Watson, 244 F.2d 737, 741 (D.C.Cir.1957); Kropa v. Robie, 187 F.2d 150, 38 CCPA 858 (1951). Appellant comes close to arguing that the tape is part of the claimed combination for the purpose of determining validity but not for the purpose of determining infringement, a position forced upon them by the fact that appellees did not manufacture or distribute the tape itself.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
William C. LANDSTROM, d/b/a Landstrom Gravel Co., Plaintiff-Appellee, v. CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 65 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Defendant-Appellant.
No. 334, Docket 72-1906.
United States Court of Appeals, Second Circuit.
Argued Jan. 15, 1973.
Decided March 30, 1973.
Peter P. Paravati, Utica, N. Y., for defendant-appellant.
James L. Burke, Elmira, N. Y., for plaintiff-appellee.
Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
OAKES, Circuit Judge:
This appeal is by a local union held liable for $60,000 compensatory damages under § 303 of the Labor Management Relations Act of 1947, 29 U.S.C. § 187, for unfair labor practices as defined in § 8(b) (4) (ii) (B) of the Act, 29 U.S.C. § 158(b) (4) (ii) (B). The appellee, a' non-union gravel and ready-mix concrete contractor in Ithaca, New York, alleged that he lost jobs as a result of appellant’s threats to shut down major area contractors if they subcontracted gravel or concrete work to appellee. The questions raised by the appeal relate to (1) sufficiency of the evidence of a violation of § 8(b) (4) (ii) (B); (2) sufficiency of the evidence concerning the charge pertaining to, and excessiveness of, damages; and (3) the admission of evidence on matters not set forth in appellee’s answers to interrogatories.
We resolve the questions of liability in appellee’s favor but reverse and remand for a new trial on the issue of damages.
Appellee’s business is a small one, on the outskirts of Ithaca, where he has a gravel pit, a transit mix concrete plant, three concrete mixers (one standby), about five dump trucks, and eight regular employees. After trying unsuccess-, fully in 1967 to organize the plant, the appellant union picketed it for two weeks in the spring of 1969. Apparently the picketing was stopped after both the union and appellee had filed charges with the NLRB. These charges were later dropped by mutual agreement before May 23, 1969. After that date, for the most part, the course of conduct on which this suit was brought ensued.
Taking the evidence in the light most favorable to the party prevailing before the jury, it appears that appellee had started to supply sand, gravel, or in one case ready-mix concrete to a number of contractors in the period 1969-1971 when he was told by the contractors or their representatives to stop making delivery. There was testimony from those coerced as follows:
(1) John Card, assistant superintendent for Dyer Fitts Construction Company in charge of the Cornell Student Housing Project, testified that he stopped appellee from making deliveries to his site because the appellant’s business agent “told me I better not use Landstrom’s trucks delivering on that job . . . that he might shut the job down, our part of the work down.”
(2) James Cartwright, executive secretary of the Cortland-Ithaca Building Exchange, a contractors’ group, testified that he had several meetings with Mr. Michaels, the business agent of the appellant, who told him that the union “would quite possibly have to picket” the job sites of members of the Exchange who dealt with Landstrom. Acting on this information, Cartwright advised the Exchange’s membership “they should anticipate some type of work stoppage” if they utilized Landstrom material or service. One of the contractors to whom Cartwright said he told this was Mr. McGuire of the firm of Stewart and Bennett.
(3) Mr. McGuire, whose employer was the prime contractor on the Spencer-Van Etten School project, corroborated Cartwright, saying that he recalled being informed by Cartwright that “there was a possibility that the job could have trouble, pickets and so forth,” if Landstrom was used. As a result of Cartwright’s statement, although Landstrom was low bidder, he did not get the 6-7,000 yard concrete contract for the school.
(4) Donald H. Brown, general superintendent of Streeter Associates, another contractor, testified that he had a conversation with Michaels before the Inlet Park job, in the course of which Michaels told him, “You must realize we don’t have an agreement with Landstrom and if you use him you would be violating your contract with us.” As a result of that conversation, according to Brown, Streeter did not order gravel from Landstrom that would have otherwise been ordered. Brown also implied that because of the “groundwork [that] had been laid” in discussion with Michaels about the Inlet Park job, Landstrom did not get the contract to supply gravel on the Unex Press job, Brown also testified, however, that another supplier — Paully Mancini & Son — did haul gravel that was bought at the Landstrom pit to the Unex Press job.
(5) Elwood Marshall, plant foreman of a Landstrom sand supplier, RumseyIthaca Company, testified that Michaels “came to us and told us not to load any of the Landstrom trucks,” and that “if we loaded trucks, he was going to shut the place down.” As a result of Michaels’ intervention with Rumsey-Ithaca, Landstrom had to find another, more expensive, supplier of sand.
(6) Rhaeto Pfister, president of Lynch Excavating Trucking Corporation, who had the excavating contract at the Ithaca College dormitories, testified that he stopped deliveries by Landstrom after “[t]he Teamsters informed us that if Bill Landstrom continued to deliver gravel that . . . I am not sure if he said picketing, or he would pull his men off, there would be a strike. Something to the effect that we would have a shutdown.” He also testified as to a similar threat by Michaels in connection with the excavating contract at Cornell Student Complex at Cornell University and as to his “other jobs,” including jobs at Tompkins Hospital and BOCES School. Pfister’s testimony was subsequently corroborated by the testimony of his then excavation superintendent, William J. Mobbs.
(7) John H. Boniface, Assistant Vice President of A. Frederick & Sons, contractors on the First' National Bank job at Ithaca, testified that he had employed Landstrom on that job but then had a call from Michaels. The substance of Michaels’ message was that “if [Boniface] continued, . . . using the non-union equipment, [Michaels] would put pickets on that job.” Boniface, however, used Landstrom anyway, without further consequences.
(8) Peter Giacobbi of Giacobbi Excavating and Grading Contractors Incorporated said he conferred with Michaels who told him Landstrom was “not union at all” and that thus he could not use Landstrom on the Northeast School Job, one involving some 8,373 cubic yards of gravel.
(9) William Schlobohna, plumbing superintendent of J & B Plumbing & Heating, testified that he had had to stop using Landstrom for hauling a small amount of gravel for a water main ditch in downtown Ithaca when Michaels told him that Landstrom’s gravel was “nonunion” and that Michaels “would shut down the job if I continued to use it.”
The principal line of defense to all of this evidence was that there was a “subcontractor’s clause” in the contracts between the union and the general contractors which required that subcontractors pay their employees the same as the general contractor paid its employees. By using Landstrom, the union argued, a general contractor was violating that clause. Thus Michaels, when asked whether he had ever threatened to shut down any of the contractors for using Landstrom, testified that he had merely “told them I was going to go to the grievance procedure,” by which he explained that he meant “I contacted my legal attorney, I find out what I can do legally, outside of giving him the seventy-two hour notice or three day notice and withdrawing my men”’ In essence, however, the jury disbelieved Michaels’ testimony that he did not tell Card, Pfister, Mobbs, Boniface, Marshall, or Schlobohna that he was going to picket their jobs or shut them down. While there is no indication that Landstrom was a subcontractor, as opposed to being a supplier, even if he were, the clause could only be enforced through the courts, NLRB v. Local 445, 473 F.2d 249 at 252 (2d Cir., 1973), since the clause was clearly “secondary.” See Orange Belt Painters District Council No. 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534, 537-538 (1964). Here there was a jury issue under § 8(b)(4)(ii)(B) in that the jury rationally could have found that appellant threatened or coerced a number of general contractors and others with the object of forcing them “to cease using, selling, ... or otherwise dealing in the products of any other producer, . . or to cease doing business with any other person . . . .” There was evidence from which the jury could have found the appellee’s conduct was “unmistakably and flagrantly secondary” and caused a severe disruption of Landstrom’s business relationships with contractors not involved in the primary labor dispute. NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 304-305, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). See Note, Secondary Boycotts: The New Scope and Application of the “Cease Doing Business” Requirement of Section 8(b)(4) (B), 71 Colum.L.Rev. 1077, 1087 (1971); 12 B.C.Ind. & Comm.L.Rev. 1255 (1971). Thus, appellant’s contention that the evidence was insufficient to support the jury’s finding of a § 8(b) (4) (ii) (B) violation must be rejected.
Appellant makes a somewhat confused subsidiary argument in reference to the Cornell Student Housing and Rumsey-Ithaca job which also applies to the statement made by Michaels to Cartwright of the Building Exchange and repeated by Cartwright to McGuire so as to deprive appellee of the Spencer-Van Etten School contract. As we understand it, appellant relies on the proviso to § 8(b) (4) (ii) (B) and Sailor’s Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950), approved in Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961), and argues that since the alleged threats relating to those three projects occurred during the pendency of a primary dispute between Landstrom and the union, the union could properly picket (and implicitly threaten to picket) Landstrom wherever he was working until the primary dispute was ended in the spring of 1969. The jury could well have found, however, that the threats that occurred in the spring of 1969 went beyond a threat of picketing in conformity with Moore Dry Dock standards, for Michaels’ words were ominous and threatening and included an explicit or implied threat to shut the neutral contractor down if he continued to deal with Landstrom. The Moore Dry Dock rules are only evidentiary aids to the finder of fact and can be overcome by other evidence of illegal secondary purpose. NLRB v. Northern California District Council of Hod Carriers, 389 F. 2d 721, 725 (9th Cir. 1968). But more important, the issue was not raised below, the court’s charge did not deal with it, and no objection was taken to any failure to charge on this question. We would add that as we read the record, the most appellant might have been entitled to in any event was a charge in respect only to the three jobs mentioned above. Coneededly such a charge might have affected the damages substantially, but having permitted the case to be submitted otherwise, appellant cannot now be heard to complain.
Appellant’s final argument on liability is that as to the A. Frederick job, by leaving the gravel in different piles Landstrom was doing on-site work. Hence the argument is this Was work performed by a subcontractor, not a supplier, and subject to the subcontractor clause of the contractor’s labor contracts and the construction industry proviso to § 8(e), 29 U.S.C. § 158(e). But the work Landstrom performed on this particular job is no different from the delivery of concrete by mixing and pouring it at the job site, which we held not to be subcontracting in NLRB v. Teamsters Local 294, 342 F.2d 18, 21-22 (2d Cir. 1965).
Relative to damages, the only evidence consisted of Landstrom’s uncontroverted testimony that his profit (the excess of selling price over cost) on the sale of gravel picked up at his pit was 25 cents per yard, on the sale of gravel delivered by his trucks to a work site approximately 75 cents per yard, and with regard to concrete at the Spencer-Van Etten school job (the only one involving the sale of concrete) $8.95 per yard. Briefly stated, there was evidence from which the jury could find that, multiplying the numbers of yards of gravel lost on the various jobs by the “profits” above stated, together with a “lost profit” for 5400 yards of concrete at $8.95 per yard or $48,330, the total damage on this basis was $74,625.25.
Appellant argues, however, that as a matter of law the evidence on damages was insufficient because appellee had the burden of proof of damages, Jodice v. Calabrese, 80 LRRM 2681 (S.D.N.Y., June 6, 1970), was free to and did use his employees and materials on other jobs, and made no showing of a general loss of profits. H. L. Robertson & Associates, Inc. v. Plumbers Local 519, 74 LRRM 2689 (S.D.Fla., Dec. 9, 1969) , aff’d, 429 F.2d 520 (5th Cir. 1970) (per curiam). It is now clear that, irrespective of state law, only compensatory damages are recoverable 303 actions. Teamsters Local 20 v. Morton, 377 U.S. 252, 260-261, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). It is equally clear that damages in a § 303 action need not be proven to a certainty, but only to an approximation inferable reasonably and justly. Flame Coal Co. v. UMW, 303 F.2d 39 (6th Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 186, 9 L.Ed.2d 125 (1962); UMW v. Patton, 211 F.2d 742 (4th Cir.), cert. denied, 348 U.S. 824, 75 S.Ct. 38, 99 L.Ed. 649 (1954). See also Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 567-568, 51 S.Ct. 248, 75 L.Ed. 544 (1931) (loss of business from Sherman Act violation). But here, with one minor exception, appellee produced no evidence of out of pocket expense as in Gulf Coast Building & Supply Co. v. Electrical Workers Local 480, 428 F.2d 121 (5th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970), or Burns Brothers Plumbers, Inc. v. Groves Ventures Co., 412 F.2d 202 (6th Cir. 1969). There was no evidence produced that appellee did not or could not have employed his material elsewhere and used his trucks and men in connection with other projects not interfered with by appellant — no evidence that his men and equipment were idled by appellant’s activity. The most that was shown is a lost gross profit, but not a loss of net income. The proof of damage here thus falls far short of that adduced by the general contractor in Abbott v. Pipefitters Local 142, 429 F.2d 786, 789-790 (5th Cir. 1970) (proof of average profit over three year period and less profit on particular job, coupled with proof that losses were not attributable to factors other than picketing). See also Sheet Metal Workers Local 223 v. Atlas Sheet Metal Co., 384 F.2d 101 (5th Cir. 1967); Teamsters Local 984 v. Humko Co., 287 F.2d 231 (6th Cir.), cert. denied, 366 U.S. 962, 81 S.Ct. 1922, 6 L.Ed.2d 1254 (1961). While there is ample proof that as a result of appellant’s unlawful activity appellee sustained lost profits on some gravel that he could have sold at the pit and some that he could have delivered, there is no proof that the same gravel — surely the most fungible and widely used of minerals — was not sold elsewhere or in any event delivered elsewhere in the ordinary course of business by the use of Landstrom’s men and equipment. Thus, appellee did not sustain his burden of proving actual damage.
Since we must remand in respect to alleged losses of profits in any event, it is unnecessary to determine whether the court’s response to a jury question in respect to Landstrom’s claim for damages should have been framed in substantially the same terms as Landstrom’s attorney’s summation. We do hold, however, that appellant’s belated objections to evidence relating to liability and damages on the Spencer-Van Etten, Morris Chain and Unex Press jobs on the ground that they were not specifically mentioned in appellee’s answers to interrogatories are unavailing. Reference was made in the interrogatory answers to claimed damages of $62,500 in respect to Stewart and Bennett, the Spencer-Van Etten contractors, and in connection with the Unex Press project there was a general answer of claimed damages of $25,000 on additional jobs; appellant cannot now claim, having failed to press for further specification before trial, that he was surprised by this evidence. Landstrom’s deposition could have been, but was not taken. The Morris Chain project of which appellant now complains was not material since no claim for damages in respect to it was made.
Judgment affirmed as to liability, reversed and remanded for new trial on damages only, costs to neither party.
. Section 8 provides in pertinent part:
(b) It shall be an unfair labor practice for a labor organization or its agents'—
(4) . . . (ii) to threaten, coerce, or restrain any person . . . where . an object thereof is' — •
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing[.]
. Appellee originally also sued Michaels and Lawrence Small, Secretary-Treasurer of the appellant. These suits were dismissed by consent prior to trial.
. On the validity of such clauses, see Truck Drivers Local 413 v. NLRB, 118 U.S.App.D.C. 149, 334 F.2d 539, cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964).
. Section 8(b) (4) (ii) (B) makes an explicit exception with respect to primary disputes. See note 1 supra. See generally United Steelworkers v. NLRB, 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964); Typographical Union No. 37 v. NLRB, 131 U.S.App.D.C. 1, 401 F.2d 952 (1968); NLRB v. Northern California District Council of Hod Carriers, 389 F.2d 721 (9th Cir. 1968).
. The pertinent portion of the charge as to appellant’s defenses read as follows:
The defendant Union, on the other hand, denies that its officers many [sic] any threats to anyone as testified to by the various witnesses produced by the plaintiff. The defendant contends that on various occasions its president advised contractors with whom the Union had .agreements that it would resort to the lawful procedure set forth in those agreements to enforce the Union’s rights under them. The Union concedes that in the course of a dispute with the plaintiff in the spring of 1969 it posted pickets at its place of business. They deny threatening to picket or strike on any other or in connection with anyone else.
You will recall that there is evidence that various charges and counter-charges were filed with the National Labor Relations Board as a result of which the pickets were withdrawn and the matter was resolved in some manner.
The defendant further denies that its actions taken in connection with the plaintiff had any object or purpose or intent to require or force any of the contractors or the Rumsey-Ithaca Corporation to cease doing business with the plaintiff.
Finally, the defendant denies that the plaintiff suffered any injury to his business and property as a proximate result of any unfair or unlawful labor practice. The defendant further maintains that it was only seeking to enforce its rights under three contracts which were introduced into evidence ....
Obviously, this did not suffice to place the Moore Dry Dock issue before the jury.
. (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, ti-ansporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible [sic] and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work ....
. Our understanding of what happened on the damage and other issues in this case below is hampered by a transcript that contains numerous uncorrectod errors, followed by briefs and appendices that are most unhelpful (and as regards the briefs in violation of Fed.R.App.P. 28, in numerous respects). To the best of our understanding, it appears that the trial court’s charge as to Landstrom’s claims was somewhat different from the testimony adduced because in connection with the BOCES School, appellant’s counsel in summation and the court spoke of twenty-seven hundred yards of gravel used there, as to which Landstrom would have delivered only one-half, making a loss of $1,-012.50. The testimony of Mr. Pfister at pages 150 et seq. of the transcript, however, was that the total yardage on the project was twenty-two thousand seven hundred yards of which Landstrom would have delivered at least one-half. On this basis the loss sustained would have been $8,512.50. This discrepancy in the charge of $7,500 in favor of appellant was not objected to by appellee and may have been due to a mistake in transcribing the testimony rather than counsel’s computations.
. For mason sand Landstrom had to purchase at a higher cost — $222.50.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
LEIBMAN v. SIEGEL et al.
No. 9601.
United States Court of Appeals Seventh Circuit.
March 21, 1949.
KERNER, Circuit Judge, dissenting.
Albert E. Jenner, Jr. and Edward H. Hatton, both of Chicago, 111., for appellants.
David M. Jacobson and Ralph E. Jacobson, both of Chicago, 111., for appellee.
Before MAJOR, Chief Judge, KERNER, Circuit Judge, and LINDLEY, District Judge.
MAJOR, Chief Judge.
This is an action by plaintiff, a tenant, against the defendants, landlords, for the recovery of damages and attorney fees for alleged violation of the Emergency Price Control Act of 1942 as amended, 50 U.S. C.A.Appendix, § 925(e), and certain regulations promulgated thereunder. The damages sought to be recovered are for an overcharge alleged to 'have been made by the defendants by the sale to the plaintiff of furniture for the sum of $1500, in connection with and as a condition to the leasing of an apartment. The court below made findings of fact, conclusions of law and, on February 25, 1948, entered a judgment in favor of the plaintiff in the sum of $3000, and in addition thereto, assessed $500 as plaintiff’s reasonable attorney fees.
Upon appeal by the defendants, this court affirmed the judgment in an opinion announced November 24, 1948. Further consideration of the case on petition for rehearing has convinced us that the judgment must be reversed. Our previous opinion is, therefore, withdrawn, and all orders entered pursuant thereto are vacated and set aside.
Sec. 925(e), upon which the instant action is predicated, provides: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity * * * may * * * bring an action against the seller on account of the overcharge. * * * For the purposes of this section the payment or receipt of rent * * * shall be deemed the buying or selling of a commodity, as the case may be; and the word 'overcharge’ shall mean the amiount by which the consideration exceeds the applicable maximum price.” (Italics ours.)
We are thus at once confronted with the perplexing issue as to whether a legal maximum rental existed for the apartment in question at the time of the alleged overcharge sought to be recovered. This issue was not previously decided by this court and it appears was given no more than incidental consideration in the court below. The importance of the issue is apparent from the fact that if decided adversely to the plaintiff no recovery can be had, and it must be kept in mind that the burden is upon the plaintiff to establish the affirmative of this issue as a prerequisite to his right to recover. See Porter, etc. v. Kenmore Mfg. Co., 7 Cir., 161 F.2d 123.
The defendants were the owners of an apartment (housing accommodation) which they inherited on October 12, 1946, upon the death of their mother, who previous to 'her death had occupied the apartment as the owner. The court below found that the defendants on December 18, 1946, agreed with the plaintiff that they would lease the apartment in question to the plaintiff “at a rental of $45.00 per month, which said rental was the maximum rent for said dwelling unit, but as a condition precedent to the said leasing of the said apartment, required the plaintiff to purchase the furniture then in said premises for the sum of Fifteen Hundred ($1500.00) Dollars and the plaintiff, pursuant to the demands and requirements of the defendants, paid over the sum of $1500.00 to the defendants who accepted and received said sum as a condition to the leasing of the said apartment.” The court also found that the transaction was “through the subterfuge and scheme of selling furniture located in said apartment and said sum was in excess of the maximum legal rents * * And the cou'rt further found that the defendants “did not obtain the written consent of the Administrator approving the sale of said 'furniture as a condition upon the leasing of said apartment.” The court concluded as a matter of law that the defendants had violated the Act and the Regulations promulgated thereunder and awarded judgment in favor of the plaintiff.
The court’s finding that defendants on December 18, 1946 sold the furniture to the plaintiff as a condition precedent to the leasing of the apartment and that they did so without the consent of the Administrator is amply supported by the record and must be accepted. But the validity of the finding that $45 per month “was the maximum rent for said dwelling Unit” on December 18, 1946, furnishes the basis for the instant controversy. On what theory the court made this finding is not shown; moreover, we think it is more in the nature of a conclusion of law than one of fact.
It is conceded that no maximum rental had been established for the apartment prior to December 18, 1946, because it had been owner-occupied by the mother of the defendants to the date of her death on October 12, 1946, and in the interim between that date and December 18, 1946, although owned by the defendants, had remained vacant.
On the date involved there was in effect Par. 4(e), 8 F. R. 7324, of the Regulations, which provided the means of determining the first maximum legal rent. See Peters v. Porter, Em.App., 157 F.2d 186,189. This Regulation, insofar as here pertinent, provides : “Section 4. Maximum Rent. Maximum rents * * * shall be: (e) First rent after effective date. For * * * (3) Housing Accommodations not rented at any time during the two months ending on the maximum rent date (March 1, 1942) nor between that date and the effective date (July 1, 1942), the first rent for su'ch accommodations after the change or the effective date as the case may be, but in no event more than the maximum rent provided for such accommodations by any order of the Administrator issued prior to September 22, 1942. Within 30 days after so renting, the landlord shall register the accommodations * *
Thus, a solution to the question under discussion depends upon the meaning to be attributed to “the first rent for such accommodations.” Does it refer to the time when an offer or promise to lease is made by the landlord, which is the situation in the instant case, or to the time when the first rent is received by the landlord?
The record discloses without controversy that no lease was executed on December 18, when the furniture was sold, which is consistent with the court’s finding that the defendants agreed that they “would lease” the apartment. We have read the testimony of the witnesses and the most which it shows is that the defendants on December 18, at and in connection with the sale of the furniture, offered to lease the apartment to the plaintiff for a term commencing January 1, 1947, at $45 per month. In a memorandum signed by the plaintiff on December 17, 1946, it is stated, “I expect that you will lease this apt. to me at $45.00 per mo. beginning Jan. 1st, 1947 for 1 yr. (Rental subject to be approved by O.P.A.) * * * I agree to execute lease accordingly if accepted as tenant.” It is true one of the defendants testified that after she received the $1500 check in payment for the furniture, the keys to the apartment were delivered to the plaintiff and that plaintiff took possession. However, no rent was paid by the plaintiff for the period from December 18 to January 1, and it was on the latter date that the defendants received the first month’s rental. It is -also shown that the defendants later refused to give plaintiff a written lease as promised, for reasons not here material.
The Regulation heretofore quoted required the defendants to register the accommodation with the Administrator within thirty days “after so renting,” and in compliance therewith defendants registered the accommodation at $45 per month on January 29, 1947. This rental has never been challenged by the Administrator acting under the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq., or the Housing Expediter acting under the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq. If December 18, 1946 is determined as the date of the “first rent for such accommodations,” the registration was not in compliance with the Regulation because it was not registered with the Administrator within thirty days. It was, however, registered within thirty days of January 1, 1947, and the fact that it was not challenged by the Administrator would indicate a recognition of January 1, 1947, when the first month’s rent was received by the defendants, as the “first rent for such accommodations.”
'We find no case where the precise question before us has been decided, although that of Woods v. Dodge, 1 Cir., 170 F.2d 761, is similar. There, the accommodation in question was a furnished apartment on which no maximum rental had been fixed as it had previously been rented unfurnished. On September 11, 1946, the landlord accepted from the tenant $150 on account of rent for the month beginning September 13. On September 16, a lease was executed for one year beginning September 13, at $150 per month, payable in advance. Shortly after September 16, the landlord agreed to and did install heating equipment and increased the rental to $167.-50 per month, which thereafter was paid by -the tenant. The landlord within thirty days filed a registration of the first rental at $150 per month, and again within the thirty days filed an amended registration showing the rental to be $167.50 per month. The court -held that it was the $150 per month rental which determined the legal maximum. In this connection, the court stated, 170 F.2d at page 763, “The registration statement is merely a reporting device,” and that the landlord in order to obtain an increase must make application to the Expediter. The court on the same page also stated, “Nor can there be any doubt that the ‘first rent’ charged for the -suite, furnished, which under § 4(j) of the Rent Regulation established the maximum legal rent chargeable for it u'nless and until -changed by the Expediter, was $150 per month.” We understand the court to use the word “charged” in the same sense as “paid,” because the rent held to determine the maximum was paid at the same time that it was agreed upon.
Plaintiff’s argument in support of his contention that a maximum rent was established and in existence at the time of the furniture sale is not convincing. It is argued that the defendants by their an-, -swer “admitted -they promised plaintiff a lease at $45.00 per month.” The exact language of the answer is, “Plaintiff was promised a one-year lease from January 1, 1947 to December 31, 1947 at $45.00 per month rental, subject -to approval by the Office of Price Administration.” As already shown, there is no finding and no proof that any rental was to become effective on December 18, 1946. The defendants did nothing more than promise a lease to become operative in the future at a designated rental.
Certain definitions contained in the Regulation are inconsistent with plaintiff’s contention. Sec. 13(a) (8) provides, “ ‘Landlord’ includes an owner * * * or other person receiving or entitled to receive rent for the use or occupancy of any housing accommodations * * It appears certain that defendants did not receive any rent from the plaintiff on December 18, nor were they entitled to receive rent under their agreement to lease prior to January 1, 1947. Sec. 13(a) (9) defines the term “Tenant” as a person “entitled to the possession or to the use or occupancy of any housing accommodations.” It seems equally apparent that plaintiff was not under the terms of the agreement with the defendants on December 18, 1946 entitled either to the possession, use or occupancy of the apartment. (We think this is true notwithstanding that defendants permitted the plaintiff as a matter of grace to occupy the apartment without the payment of rent from December 18, 1946 to January 1, 1947.) Sec. 13 (a) (10) defines “Rent” as meaning the “consideration * * * demanded or received for the use or occupancy of housing accommodations * * It is also plain that the defendants on December 18, 1946 neither demanded nor received any consideration in the form of rent for the use or occupancy of the apartment. By agreement of the parties and in accordance with what subsequently transpired, the receipt of rent did not take place until January 1, 1947. Of course, it may be claimed, and no doubt properly so, that the $1500 received for the furniture was a part of the consideration received by the defendants, but this amount represents the overcharge sought to be recovered and cannot be considered as the base rental which is determinative of the maximum legal rent as a prerequisite to a determination as to whether any overcharge was made.
Plaintiff in attempting to meet this situation also argues that it was not necessary to make proof as to the maximum legal rent. The brief states, “This type of cause of action does not depend upon the existence of an established maximum rental on a given date.” This argument is predicated upon Sec. 9-B of the Regulations, which so far as here material is the same as Regulation 8, which we considered and discussed in Small v. Schultz, 7 Cir., 173 F. 2d 940, in an opinion filed simultaneously with this opinion. What we said there is equally applicable here and need not be reiterated. It is sufficient to note that a landlord’s requirement that a tenant purchase furniture as a condition to the renting of a housing accommodation without the prior consent of the Administrator, while a violation of the Regulation, does not authorize recovery by the tenant in a civil suit for damages. Such a suit must rest upon the statutory provision which authorizes an action against the landlord for an overcharge. The overcharge relied on in the instant case is the amount the plaintiff paid for the furniture but, obviously, such payment could not constitute an overcharge in the absence of a maximum legal rental in existence at the time. No such maximum legal rent having been fixed or in existence at that time, there can be no recovery.
The judgment is, therefore, reversed, with directions to dismiss the complaint.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_jurisdiction
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America, Appellee, v. Clifford Keith MERRILL, Appellant.
No. 72-1707.
United States Court of Appeals, Eighth Circuit.
Submitted Jeme 12, 1973.
Decided July 20, 1973.
Certiorari Denied Dec. 3, 1973.
See 94 S.Ct. 594.
Donald R. Shultz, Rapid City, S. D., for appellant.
William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee.
Before Mr. Justice CLARK, and HEANEY and BRIGHT, Circuit Judges.
Associate Justice Tom O. Clark, United States Supreme Court, Retired, is sitting by designation.
PER CURIAM:
Clifford Keith Merrill, Jr. was found guilty by a jury on three substantive counts of robbery of a federally insured bank and a fourth count of conspiracy to commit such robbery. Merrill challenges his conviction on six points: (1) the Government’s alleged failure to establish the District Court’s jurisdiction, i. e., that the bank was federally insured; (2) use of a transcript of Merrill’s testimony at a previous removal proceeding infringed his privilege against incrimination; (3) the introduction of a spontaneous statement made by the robbery victim at the scene as part of the res gestae; (4) the admission into evidence of a motel registration card bearing Merrill’s fingerprint; (5) the denial of Merrill’s protective motion that in the event he testified, inquiries as to prior convictions would not be permissible; and (6) the Government’s alleged failure to prove beyond a reasonable doubt that the robbery victim’s death was caused by the injuries received in the robbery. We find no merit in any of these contentions and, therefore, affirm the judgment.
1. Proof of F.D.I.C. Coverage:
The federally insured status of the Blackpipe State Bank of Martin, South Dakota, was proved by the certificate of the Federal Deposit Insurance Corporation issued to the bank in the regular course of business. This, together with testimony that the insurance premium was paid, was quite sufficient proof that the bank was federally insured under 18 U.S.C. § 2113(f). Scruggs v. United States, 450 F.2d 359 (8 Cir. 1971), cert, denied, Chambers et al. v. United States, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972).
2. Use of Merrill’s Testimony at Removal Hearing:
Portions of Merrill’s testimony at his removal hearing held in Chicago in which he said that he had never been to Martin, South Dakota, and did not “ever remember going to South or North Dakota’’ were admitted at his trial. Merrill was represented by counsel at the removal hearing and he does not claim that he was not fully and adequately warned of his rights. In fact he was clearly warned at the hearing that his testimony there might be used against him at any future trial. Merrill cites Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 247 (1968), as authority for excluding his prior testimony. There the Court held that Simmon’s testimony at a motion to suppress was not admissible at his trial on the merits. This holding protects a defendant from the necessity of foregoing one constitutional right (privilege against self-incrimination) in order to exercise another one (right to be free from unreasonable search and seizure). In the present case, however, only the privilege against self-incrimination was involved; the exercise of no other constitutional privilege was dependent on Merrill’s decision to testify at the removal hearing. Merrill’s decision was entirely one of trial strategy. The general evidentiary rule is controlling, i. e., that one’s testimony at a prior hearing is admissible in evidence against him at subsequent proceedings. Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 20 L.Ed.2d 1047 (1968). A long line of cases holds that false exculpatory statements are properly admissible as substantive evidence as tending to show guilt. E. g., Rizzo v. United States, 304 F.2d 810, 830 (8 Cir. 1962), cert, denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962).
3. Introduction of Spontaneous Statement of O. A. Hodson:
The record indicates that in the ■ early morning of Monday, October 26, 1970 O. A. Hodson, the 88 year old President of the Blackpipe State Bank at Martin, South Dakota, and his son Richard, an officer of the bank, had breakfast at a local hotel in Martin. O. A. Hodson left the cafe before his son and proceeded to the bank.
Merrill and his stepson, Robert J. Bruce, had driven to the bank earlier in a rented car and had parked near the rear entrance of the bank. Merrill and Bruce had not expected Hodson to appear so early. When the latter had reached the entry way of the bank, Merrill, armed with a pistol, and his stepson ran up to Hodson and demanded that he open the bank door. When he refused, Merrill hit him on the head with the pistol and Hodson began to bleed profusely, whereupon Merrill took the bank keys from him, opened the door and dragged Hodson into the posting room behind the tellers’ section. He then tied Hodson’s hands behind his back and taped his feet and his mouth. When Hodson refused to give the combination of the safe to Merrill, the latter searched through the teller’s cage and drawers and took the bait money. Merrill again demanded the combination and when Hodson refused, kicked him on the buttocks, ribs, belly and back near the left hip. Hodson’s wallet was taken from him and his body was thrown in the corner against a wastepaper basket.
Merrill removed approximately $100 from the wallet and then threw it in the wastebasket. Hodson’s eyeglasses were also found in the wastebasket. Bruce and Merrill were in the bank about half an hour when Bruce became alarmed and fled the bank at the sight of Richard Hodson outside the bank. The father signalled to Richard and he, along with his brother Bruce Hodson, also a bank officer, came running up. When the tape was removed from the elder Hodson’s mouth and his hands were untied, he told his son Bruce:
“He could not believe that somebody would tie and gag another human being and then stomp him. He said, ‘Son, I didn’t think anybody would do that to a dog.’ ”
This conversation was admitted into evidence as res gestae. The record shows that the elder Hodson was nervous, apprehensive and in a state of emotional shock. He was bleeding actively from headwounds. The statements were made under the stress and strain of the moment. Because of these circumstances and the close proximity of the utterances to the event, the trial judge determined that Hodson’s statement was admissible. Such a determination rests with the sound discretion of the trial court, to be disturbed only when clearly erroneous. Roberts v. United States, 332 F.2d 892, 898 (8 Cir. 1964), cert, denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965). A careful study of the record supports the District Court’s determination.
4. Admission of Motel Registration into Evidence:
There is no merit to the contention that Merrill’s registration card with the Hot Springs, South Dakota, motel, where he and Bruce spent the night the day before the robbery, was improperly admitted into evidence. It was identified by the motel’s manager, who had personally prepared it when Merrill registered and who testified that such registration cards were kept in the ordinary course of business. A motel clerk testified that at the request of the F.B.I. she had searched the motel’s business records for the card. The cards were indexed alphabetically and Merrill’s card was found in its proper place. The card was examined by experts at the F.B.I., who were able to develop Merrill’s latent fingerprint. This proof met the test of 28 U.S.C. § 1732. See United States v. Anderson, 447 F.2d 833, 838 (8 Cir. 1971), cert, denied, 405 U.S. 918, 92 S. Ct. 943, 30 L.Ed.2d 788 (1972). In addition, Bruce testified for the Government that he and Merrill spent the night at the motel as shown on the registration card.
5. Merrill’s Protective Motion Concerning the Use of Former Convictions:
Merrill moved for a protective order prohibiting the Government from cross-examining him on his felony record in the event he took the stand. He claims that because the motion was denied, he was barred as a practical matter from taking the stand in his own defense. It is hornbook law that one who takes the stand in his own defense may be cross-examined relative to prior convictions. United States v. Scarpellino, 431 F.2d 475, 478-479 (8 Cir. 1970).
6. Proof as to the Cause of Death of O. A. Hodson:
Merrill claims that the Government failed to prove beyond a reasonable doubt that O. A. Hodson’s death resulted from injuries which he received in the bank robbery. We have carefully reviewed the record on this point and cannot agree.
Hodson was 88 years of age at the time of the robbery. Prior to the robbery he was in “excellent health,” according to his physician, Dr. Gerald Walton. Dr. Walton was a 38 year old graduate of the Southwestern Medical School at Dallas and had been in the practice at Martin, South Dakota, since 1965. He had been O. A. Hodson’s doctor since coming to Martin and had seen him frequently around town and a few times professionally. During this period Hodson was never hospitalized and suffered no serious illnesses. A routine physical examination made by Dr. Walton on January 8, 1970, indicated that Hodson’s cardiogram was “within normal limits” and his health “excellent.”
On the morning of the robbery Dr. Walton received an emergency call to come to the bank and he arrived there shortly after 8:00 a. m. He found Hod-son “lying on the floor . . . somewhat in a state of emotional shock and very nervous and apprehensive. He was bleeding actively from a head wound.” Dr. Walton had him removed by ambulance to the hospital. Examination showed no evidence of any skull fracture or bleeding under the skin. His blood pressure was 132 over 58, somewhat lower than at previous examinations but “not significantly low.” His respiration and temperature were normal, but his pulse showed “some irregularity.” Tests indicated pus cells in his urine which were related more to trauma than to infection. He had developed a cardiac irregularity with “some weakness and dizziness for several days and ran a persistent elevated blood count, white blood cells . . . ” He was placed on antibiotics “. . . because of his age and the wounds that he had received on the head.” He was discharged from the hospital on October 30 “to home rest.” At the time he was “somewhat weak, still having some cardiac irregularity but his wounds seemed to be healing well at that time.” There was some swelling in the left hip area along with some bruises in the buttocks and hip. Dr. Walton found the heart irregularity to be the result of stress associated with the robbery assault. An examination on November 12 at Dr. Walton’s office revealed an anemic condition with elevated white cell count. Diarrhea had also developed and Mr. Hodson experienced slight confusion and vertigo for several days. Mr. Hodson was returned to the hospital on November 19, 1970, with acute diarrhea and acute urinary retention. He was catheterized and 2000 c.c.’s of urine were removed from the bladder. An earlier urinalysis on October 27 “indicated there was evidence of injury or trauma to the urinary tract.” Hodson began to spike fever on the day of admission to the hospital. The doctor attributed this condition to the urinary tract obstruction and infection in turn related to difficulty in urination and treatment for the diarrhea and to the “possible injury.” During hospitalization Hodson developed fluid in the lungs because his heart was not sufficiently pumping the blood fluid through his system. A tracheostomy was performed on November 25 to facilitate suctioning of the lungs and assist breathing. On November 28 Mr. Hodson suffered a cardiac arrest and died. Dr. Walton found that the causes of death “were related to his initial injuries [suffered at the bank robbery] and complications that developed thereafter. An autopsy of Mr. Hodson by Dr. Freeman revealed “large black and blue areas over the dorsal surface of the hands,” indicative of intravenous infusion; lacerations on the top of the head which were healed; heavier lungs than usual with probable areas of pneumonia; a blood clot in the main artery of the heart: “a normal size heart and remarkably good for a man of his age”; liver within normal weight range; kidneys were normal; bladder was discolored or red; a scar was found in the cerebellum of four weeks or more duration. Dr. Freeman concluded that the cause of death was “hospitalization leading to — with bed rest — leading to bronchial pneumonia and pulmonary em-bolus.”
The cause of death issue was properly submitted to the jury and it found against Merrill. Viewing the evidence, as we must, in the light most favorable to the prosecution, we believe that the Government clearly sustained its burden of proof. Evidence of a chain of causation leading from injuries suffered in the robbery assault to Hodson’s death was strong and there were no missing links in that chain.
In the light of all of these considerations the judgment is affirmed.
. Merrill asserts that Dr. Walton could not relate the infection, urinary retention or diarrhea to the blows received at the bank robbery. In his direct testimony Dr. Walton did say that “it would be impossible to say specifically that the infection came about as a result of the blows.” However, on cross-examination he was shown the October 27 urinalysis which he said:
“I hadn’t seen for some time” and this did indicate injury or trauma to the urinary tract. This in turn brought on difficulty in urination and infection. Merrill also claims that there was no evidence of bed rest. The record, however, shows continuous bed rest during two periods of hospitalization together with “home rest.”
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_applfrom
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES ex rel. EMANUEL v. JAEGER, U. S. Marshal.
No. 175.
Circuit Court of Appeals, Second Circuit
Feb. 10, 1941.
Max Shlivek, of New York City (Shlivek & Brin and Saul S. Brin, all of New York City, on the brief), for relator-appellant.
Nathan Weidenbaum, of New York City (Benjamin F. Steinberg, of New York City, on the brief), for respondent-appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
The relator herein is the president and sole stockholder of Martin Clothes, Inc., which in the fall of 1937 filed a petition in the court below for reorganization under the then § 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. Proceedings in connection with that reorganization and involving one Frank Raskin have now led to the judgment of commitment for contempt against the relator, from which he seeks relief on this writ of habeas corpus. Raskin was not originally, and seemingly never formally, a party to the reorganization proceedings; his interest arises, initially at least, by virtue of a written agreement made November 24, 1937, between him and the relator, whereby he agreed to furnish the necessary cash to consummate the reorganization. Relator’s commitment was occasioned by his failure to comply with an order of the bankruptcy court that he refund to Raskin the money advanced by the latter and pay certain expenses in connection therewith. He attacks this order as beyond the jurisdiction of the court in bankruptcy.
The agreement of November 24, 1937, provided that Raskin was to deposit $2,500 with the clerk of court to provide a 30 per cent cash payment to creditors as soon as a plan of reorganization to that effect should be accepted and confirmed; that relator’s stock, to be held in escrow until confirmation of the plan, should then be delivered to Raskin to hold until relator had reimbursed him, and thereafter to be returned to relator; and that until Raskin was paid, relator should work for the business at a fair and reasonable salary. After it was made, Raskin made the required deposit with the clerk, though only $1,500 was his own money, since $1,000 was supplied by relator’s father-in-law, Feldman. Thereafter the plan of reorganization was modified to substitute for the 30 per cent cash settlement with creditors a combined cash and note settlement of 20 and 10 per cent respectively, with notes of 5 per cent each of the debtor, endorsed by relator, relator’s wife, and Feldman, payable March 20 and April 20, 1938, respectively. The creditors accepted the amended plan and the court confirmed it on February 3, 1938. In its order of confirmation, the court directed the clerk to pay to the debtor the money theretofore deposited “for the purpose of debtor making distribution and payments to creditors under said Amended Plan of Reorganization and under this order.” Relator asserts, and it is not challenged, that debtor, upon receipt of the deposit, distributed it to the creditors as ordered, delivered the notes as required and paid them when they came due, and paid priority claims, as well as administration expenses, in full in accordance with the plan.
On February 15, 1938, Raskin applied to the district court for a resettlement of the confirmation order, on the grounds that he had not been served with a copy of the proposed order, and that the changes in the plan, described above, had been made without his consent. The court referred his application to a special master to hear and report. After extensive hearings the master reported, and the court on December 6, 1938, made an order, which went quite beyond a mere resettlement of the confirmation order. In this order the debtor was directed to pay to Raskin $1,500, representing the sum advanced by him, $125 representing an additional loan, and $115 for a copy of the stenographic record obtained for the special master, and to the special master, court reporters, and Raskin’s attorney fees in the amount of $1,302.50, or a total of $3,042.50. The quite inadequate record before us does not explain why this order was passed at a time when the creditors had apparently received the full 30 per cent payment for which Raskin had stipulated.
Thereafter Raskin moved for a resettlement of this order so that it might include a direction to require not only the debtor, but also the relator individually, to make the stated payments. Relator asserts that this step was taken only after an attempt to have him adjudged in- contempt for failure to make the payments had failed because the court held that the original order applied only to the debtor corporation. The new application was granted on April 17, 1939, in a resettled order wherein relator individually and the debtor corporation were severally and jointly directed to make the said payments, and were further directed to deliver to Raskin “the property, books, and papers of the Debtor herein.” A motion to punish them for contempt, originally returnable on July 12, 1939, eventually resulted in an order on September 26, 1939, which found them both in contempt, and provided that as punishment they “were jointly and severally fined the sum of $3,042.50,” relator, however, to be permitted to purge himself by paying the amount of the fine at the rate of not less than $40 a month. Relator made payments amounting to only $140. On August 10, 1940, the court passed its order directing the United States marshal to apprehend relator and to confine him in the Federal House of Detention until he paid the balance of his fine and the marshal’s expenses, or “until the further orders of this court.”
Between the entry of the contempt order and the commitment order there were further proceedings in the way of motions by relator for modification of the order, for reargument, and for the taking of testimony on the subject of the delivery of the books, records, and papers. These motions were all denied. Whether the books, records, and papers remained undelivered is not clear; the commitment order, while reciting the earlier order which included them, is in terms based upon relator’s failure to purge himself of contempt by paying his fine. Again on June 5, 1940, just after the court had ruled that it would order commitment unless the arrears were paid within two weeks, relator moved for a reargument of all the applications by Raskin and all the prior orders. This motion the court denied, as relator alleges, “in a memorandum decision, holding that he did have jurisdiction over the proceedings instituted by Frank Raskin.” No appeal was taken from any of these orders of the bankruptcy court. The petition for this writ came before another district judge, who expressed doubt as to the jurisdiction of the bankruptcy court over payments of money required by the agreement, but thought that the provision to turn over the stock and papers was sufficient to give the court jurisdiction over the whole subject matter.
From the brief record herein, limited in substance to the facts set forth in relator’s petition and an affidavit filed by Raskin in the earlier proceedings, somewhat supplemented by the recitals of the commitment order, we are left in the dark as to the legal basis for the orders of the bankruptcy court. It is unfortunate that an appeal involving personal liberty should be presented on so scanty a record. The facts before us indicate error in the action taken against the relator; our real problem is to determine whether or not this amounts to a jurisdictional defect open to collateral attack. We address ourselves first to the resettled order of April 17, 1939, for that is the first command directed against the relator personally.
We have not before us either the application for that order or the complete order itself. Since the question of jurisdiction had previously been raised, it would appear that the court passed upon it; at any rate it did so upon the application for reargument in 1940 and found in favor of its jurisdiction. Just the grounds upon which it went are not clear. The arguments and allegations of the parties seem to suggest one or both of two grounds: (1) enforcement of the original agreement with Raskin, and (2) identity of relator with the debtor corporation of which he was president and sole stockholder. We do not believe either ground singly^ or both together are adequate to support the order so far as it required relator to make refund of the loan to Raskin and to pay the expenses in connection therewith. There would be also requisite a finding that relator himself had had possession of the funds in question. The -finding said to have been made that the debtor corporation “was only a medium or a conduit used by” relator seems to be nothing more than a conclusion as to this form of legal and business device which in itself discloses nothing sinister. Corporations at best are only mediums or conduits whereby individuals carry on their affairs. And a violation of the agreement, so far as relator is concerned, is only a contractual breach on a matter collateral to the bankruptcy and hence not within its authority. Nixon v. Michaels, 8 Cir., 38 F.2d 420; In re Railroad Supply Co., 7 Cir., 78 F.2d 530; Smith v. Chase National Bank, 8 Cir., 84 F.2d 608.
*It is said that the plan of reorganization, while not referring to Raskin by name, did, however, recognize the obligation to him incurred by the debtor and his rights in the stock, the books, and the papers of debtor. That might well justify an order for a refund on non-consummation of the plan or for delivery of physical things, and the bankruptcy court surely retained jurisdiction under former § 77B, sub. a, to revoke its confirmation of the original plan twelve days after it had been had. True, it is not clear why the essential features of the agreed-upon plan had not been carried out, nor how the lender could get back both his money and the security for it; but that would appear to be at most error, not a defect of jurisdiction. And since it is natural to expect the president and sole stockholder of a corporation to be able to turn over its physical assets, an order as to them might go against thp president ; at least we held in Re Arctic Leather Garment Co., 2 Cir., 89 F.2d 871, that lack of finding of the officer’s possession of corporate bonds and his own stock was only formal and did not vitiate a turnover order. See also In re Byrd Coal Co., 2 Cir., 83 F.2d 190, 192.
But even if this part of the order is justified, it is not the part upon which the actual commitment was based; and in any event, where an order is partly within and partly without the court’s jurisdiction, the part without is void. In re Bonner, 151 U.S. 242, 257, 14 S.Ct. 323, 38 L. Ed. 149. The remainder of the order, as we view it, must assume that relator had possession of the deposit received from the court. That appears to be contrary to the statement that debtor received it and distributed it to the creditors, presumably long before this hearing, which came a year and a half after the original confirmation order. It involves in substance a holding that relator had taken trust funds in violation of the court’s order. If still open, we should certainly be loath so to hold on the basis of anything appearing in this record. True, Raskin does make charges that debtor’s store was closed, and all the merchandise and fixtures removed, while the hearings were proceeding before the master, and again that relator at some time misappropriated more than $1,100 over a period of six weeks after the trustee had been removed. These apparently unconnected allegations are tied together in respondent’s brief to show that they referred to the physical assets of the corporation and had no connection with the fund for the cash payment to creditors. We have already referred to the “conduit” theory; we see nothing else affording any justification for such a conclusion.
Nevertheless it appears on the authorities that, however harsh may be the result as to the relator herein, that issue is not open to collateral attack. What we have said indicates that in an appropriate case the bankruptcy court could have made the order in question. It is now well settled that on contempt proceedings no attack can lie made on the regularity, correctness, or validity of the original order. Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419, affirming In re Oriel, 2 Cir., 23 F.2d 409, 413; In re Siegler, 2 Cir., 31 F.2d 972; In re Arctic Leather Garment Co., supra; Id., 2 Cir., 106 F.2d 99; cases collected 3 Moore’s Collier on Bankruptcy, 14th Ed., 535-537. A like rule applies to habeas corpus proceedings; they cannot be used to review, as on appeal, the court action which has led to the commitment order. Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293, affirming Ex parte Craig, 2 Cir., 282 F. 138; Ex parte Kearney, 7 Wheat. 38, 20 U.S. 38, 5 L.Ed. 391; United States ex rel. Paleais v. Moore, 2 Cir., 294 F. 852.
Relator has appealed from neither the commitment nor the contempt order; he therefore can raise here the issue of jurisdiction only. Yet he had opportunity to and did raise that issue in the prior proceedings, and the court found against him. Even if we assume that the court was acting upon erroneous grounds as indicated above, yet Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104, makes it clear that the matter is settled against collateral attack. There the issue whether or not the bankruptcy court could release a guarantor in reorganization from his guaranty was decided by the Court in favor of its jurisdiction. Yet the Supreme, Court holds that, even if that ruling be erroneous, and the matter without the power of a bankruptcy court (In re Diversey Bldg. Corp., 7 Cir., 86 F.2d 456; In re Nine North Church Street, Inc., 2 Cir., 82 F.2d 186), the issue cannot be raised collaterally. The situation seems the same as that here presented. Later decisions of the Court reiterate and reinforce this conclusion. Jackson v. Irving Trust Co., Jan. 6, 1941, 61 S.Ct. 326, 85 L.Ed. —; Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 84 L.Ed. 329; cf. 40 Col.L.Rev. 1006, 1008; 53 Harv.L. Rev. 652, 659; 49 Yale L.J. 959; and see also Ripperger v. A. C. Allyn & Co., 2 Cir., 113 F.2d 332, certiorari denied 61 S. Ct. 136, 85 L.Ed. -; Commercial Cable Staffs’ Ass’n v. Lehman, 2 Cir., 107 F.2d 917, 921.
Hence we conclude that the commitment order was authority, not subject to attack herein, for the marshal to hold the relator in his custody. The dismissal of this writ must therefore be affirmed. It would seem, however, that the relator is not wholly without remedy. The recitals herein indicate that the bankruptcy court retained jurisdiction' of all proceedings in connection with the reorganization after it had assumed to pass upon the plan. It may be that jurisdiction once more to resettle the original turnover order exists. Since, so far as the record shows, the issue of relator’s possession of the money. has never been tried out, as his various objections were apparently based on a misapprehension of his legal rights, it would seem appropriate for the court to reconsider that issue if it still retains jurisdiction so to do. In any event the original contempt order was of a continuing nature and the order of commitment was expressly made subject to further orders of the court. It would seem, therefore, that the bankruptcy court may properly be appealed to for action in the light of the considerations we have herein set forth. Present inability to perform has been considered an appropriate defense to a contempt proceeding. Oriel v. Russell, supra; In re Byrd Coal Co., 2 Cir., 83 F.2d 256; 3 Gerdes on Corporate Reorganizations § 1274; cf. United States ex rel. Paleais v. Moore, supra; In re Roxy Liquor Corp., 7 Cir., 107 F.2d 533. Under the circumstances it seems appropriate that no costs be taxed on this appeal, and we so direct.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_fedlaw
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
In re GLANTZ. B. J. HARRISON MFG. CO. v. BROMBERG.
No. 266.
Circuit Court of Appeals, Second Circuit.
March 6, 1933.
CHASE, Circuit Judge, dissenting.
Arthur F. Curtis, of Delhi, N. Y. (Sidney Fertig, of New York City, of counsel), for trustee.
Irving I. Goldsmith, of New York City, for Harry Bromberg.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
MANTON, Circuit Judge.
The B. J. Harrison Manufacturing Company was owned by Charles Glantz, against whom a petition in involuntary bankruptcy was filed and for whom the appellee has been appointed trustee. The property of the bankrupt consisted of a factory building, machinery, stocks, materials, accounts receivable, and patent rights. After tho appointment of the trustee, he received two offers for the purchase of the assets, one of $6,500, by the appellant, and another of $8,000, by John F. Kuhn. After the offers were received, the referee in bankruptcy gave formal written notice to the creditors of the bankrupt that such offers had been made. The notice called for a meeting of the creditors at the plant at Arkville, Delaware county, on the 14th of May, 1932, “to consider said offer, also to consider any other offers which may ho [made] before or at said meeting.” At this meeting, tho appellant increased Ms hid to $10,100, which was higher than all other bids. There was full opportunity for bidding. Two days later, a petition for confirmation of tho sale was filed and notice thereof was sent to the creditors. A few days after service of the notice, and before the 31st of May, 1932, when the matter was set for a hearing, Kuhn increased his offer to $11,500. At the hearing, the trustee communicated to the referee, and the creditors present, this increased offer of Kuhn, and the majority in number opposed the confirmation because a Mgher price could be procured. The final confirmation was adjourned until tho 20th of June, 1932, when the trustee and representatives of tho majority of the creditors again considered bids and approved the appellant’s. Tho referee stated that the sale was fairly conducted and the price offered by the appellant was fair, and that there had been no misrepresentations at the time of acceptance of the appellant’s bid, and he confirmed the sale. On July 7, 1932, the referee made an order accordingly. A petition to reviso was filed in the District Court, and the order of confirmation was reversed, and the property was sold a second time at private sale, August 22, 1932, to John F. Kuhn for $12,750.
The District Judge grounded his decision upon the failure to comply with the provisions of subdivision 2 of General Order XVIII (11 USCA § 53), which provides that upon an application to the court the trustee may be authorized to sell any specific portion of the bankrupt’s estate at private sale, in whieh case he shall keep an accurate account of each article sold and the price received therefor and to whom sold, which account he shall file at onee with the referee. The court below held that this was a private sale and that no application or order was made therefor. This was a jurisdictional requirement, and a private sale may not be had without it. The court said: “There seems to be no eases holding that such requirement may be dispensed with.”
It appears that the receiver attempted to sell the business and failed. The trustee, aided by the receiver and the creditors, had solicited purchasers and had but two bids. It was thought most advantageous by the creditors to have a private sale, rather than a publie sale, and the creditors demanded an authorization to the trustee to negotiate with prospective purchasers. The referee states it was the unanimous opinion that a publie auction should not be undertaken but a private sale had, and he so recommended. The trustee thereupon asked for a private sale, whieh was granted, as the findings of fact indicated. Staley v. Dwyer, 29 F.(2d) 982 (C. C. A. 8); Baker v. Sproul (D. C.) 37 F.(2d) 937, affirmed 37 F.(2d) 938 (C. C. A. 3).
A notice formally directing a meeting of the creditors to consider the bids on May 14, 1932, 'was a sufficient order to proceed with the private sale of the property. Later a meeting was held, the offers considered, and the offer of the appellant accepted. The final act of the referee in confirming this sale to the appellant and the order entered thereon leaves no doubt we think as to the compliance with subdivision 2, General Order XVIII.
The only objection appears to be to the form and not the substance of the order. Nothing in General Order XVIII or in any of the rules malíes this order of sale insufficient. Rule 12 of the Rules of the Northern District of New York requires petition to be written or printed. Collier on Bankruptcy (13th Ed. p. 175), speaking of publie auctions and private sales and referring to General Order XVIII says: “At the same time, in the face of the mandatory provisions of § 58-a (4), this rule will be cautiously applied, and only where the moving papers show clearly either a necessity for immediate sale or a fair and adequate offer.” We regard the proceedings here as a sufficient compliance with this rule. There was just as complete and definite a record made of the proceedings and order therefor as was necessary under the circumstances. The facts satisfied the referee that a private sale was advisable; the trustee asked for such sale, and it was authorized. The purpose of the General Order No. XVIII was complied with; the creditors, fully advised, approved.
Order reversed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_mootness
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that an issue was moot?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
MACK et al. (FRANK, Intervenor) v. PASSAIC NAT. BANK & TRUST CO. et al.
No. 8855.
Circuit Court of Appeals, Third Circuit
Argued April 19, 1945.
Decided July 6, 1945.
Ernest Kurzrok, in pro. per.
Samuel Kaufman, Bilder, Bilder & Kaufman, all of Newark, N. J. (J. Leo Rothschild, of Newark, N. J., on the brief), for appellee Adam Frank.
Ralph A. Corbin, of Passaic, N. J., for appellee Passaic Nat. Bank.
Isadore Glauberman, of Jersey City, N. J., for appellees Ruth Mack and Lucy Elias.
Before BIGGS, GOODRICH, and Mc-LAUGHLIN, Circuit Judges.
BIGGS, Circuit Judge.
The plaintiffs, Mack and Elias, executrices of the estate of Clara B. Prince, brought suit as holders of “Certificate[s] of shares of proceeds of sale of the East and West Ridgelawn Cemeteries, bodies corporate of the State of New Jersey”, against Passaic National Bank & Trust Company hereinafter called the Trust Company, successor trustee to the Passaic Trust & Safe Deposit Company, hereinafter called the Deposit Company, alleging a breach of the provisions of a trust indenture by the successor trustee. The trust indenture, executed on December 21, 1906, recites, among other things, that one Gruber conveyed to the Deposit Company certain lands in Passaic County, New Jersey, and that the Deposit" Company conveyed these lands to East Ridgelawn Cemetery subject to certain trusts in pertinent part as follows: East Ridgelawn Cemetery was to pay to the Deposit Company as trustee not less than 6‡ for each square foot of land sold by the Cemetery Company for burial purposes, the Deposit Company being required to use these moneys for the perpetual care of the cemetery. The rest of the money received from the sale of lots, less certain specified expenses, was also to be paid to the Deposit Company which on certain dates was required to divide it among certificate holders of which Mrs. Prince was one.
The form of the certificate issued was set out in the indenture and was indeed anomalous. The certificate was as follows: “Certificate of shares of proceeds of sale of the East and West Ridgelawn Cemeteries, bodies corporate of the State of New Jersey. This is to certify that * * * is the registered holder of * * * shares of the proceeds of the sale of these companies of sub-lots or plots in the hands of said corporations after deducting certain expenses, charges and disbursements provided for in the deed by which the said lands were conveyed to the said corporations by the * * * Deposit Company. * * * This certificate is part of an issue of shares amounting in the whole to thirteen thousand five hundred. * * * The holder of this certificate is entitled to receive his pro rata share of such proceeds of sale from time to time as provided in said agreement above mentioned. Witness the seals of the companies and the signatures of their Presidents and Treasurers this -- day of -, 19 — .” There follows the words “East Ridgelawn Cemetery - President - Treasurer.” and "West Ridgelawn Cemetery - President -- Treasurer.” It should be stated that except within the form of the certificate just quoted, West Ridgelawn Cemetery is not referred to in the indenture. The parties state that a trust indenture in similar terms, mutatis mutandis, was executed on June 3, 1907, by the Deposit Company in respect to the sale of lots of West Ridgelawn Cemetery. Mrs. Mack and Mrs. Elias as executrices own certificates in the form stated.
The complaint filed by the executrices alleges that the Trust Company is the successor to the Deposit Company, that the Trust Company is in breach of its fiduciary duty in that it failed to collect a certain money decree procured by it in the New Jersey Court of Chancery on July 18, 1933 against East Ridgelawn Cemetery in the sum of $205,973 and that the Trust Company has permitted East Ridgelawn Cemetery “to disburse its funds to other creditors for salaries and other expenses * * *”, that “Although requested by other shareholders [certificate holders] to * * * sequester the income of the * * * East Ridgelawn Cemetery for the purpose of applying a portion thereof to the payment” of the decree of the Court of Chancery of New Jersey, the Trust Company failed to do so and that by reason of this failure the income and funds of East Ridgelawn Cemetery was dissipated. The complaint refers to the trust indenture of 1906 and to conveyances made to "East and West Ridge-lawn Cemeteries” and asserts that though the Deposit Company was given a lien upon the cemetery properties “upon default in payment of the shares of proceeds of sale of lots by the said cemeteries” the lien has been lost by the failure of the Trust Company to exercise it. The complaint also alleges that the Trust Company was a negligent trustee because it invested a large part of the “permanent care fund", the fund for the perpetual care of graves, in securities illegal for trust investments under the laws of New' Jersey whereby the moneys were dissipated.
The complainant prays that the Trust Company be compelled to account for the losses suffered by the plaintiffs’ estate and by “all other shareholders of the East and West Ridgelawn Cemeteries”; that the Trust Company be relieved of its trust and that a decree be entered removing it as trustee; that the Trust Company be required to pay to the new trustee such sums as may be determined to be due and owing from it by reason of the trustee’s negligence, misfeasance and nonfeasance; and for such other and further relief as the court may deem to be just and proper.
The Trust Company appeared and filed an answer and counterclaim. The learned District Judge referred the case to a special master. It appears from evidence offered to the master that neither the Deposit Company nor the Trust Company collected or received funds from West Ridgelawn Cemetery but did collect and receive funds from East Ridgelawn Cemetery. It does not appear how the Deposit Company and its successor the Trust Company could collect funds from the sale of lots in East Ridgelawn Cemetery for the benefit of certificate holders and not collect funds for the benefit of certificate holders from the sale of lots in West Ridgelawn Cemetery without standing in breach of trust. The memorandum opinion of Vice Chancellor Backes and the decree entered in the New Jersey Chancery suit cited do not compel a contrary conclusion. From the decree and the opinion it appears that on January 1, 1933, there was due from East Ridge-lawn Cemetery to the perpetual care fund of that cemetery the sum of $3,418, and that there was due from East Ridgelawn Cemetery to the fund for the benefit of the certificate holders the sum of $205,973. The learned Vice Chancellor did not determine whether or not there was any sum due from West Ridgelawn Cemetery to the trustee. West Ridgelawn Cemetery was not a defendant in the case before him.
In the proceeding in the court below the Trust Company filed an account “as to the dividend and perpetual care funds”. The special master received evidence in respect to the trustee’s account, heard argument and on May 22, 1944, filed a report recommending the approval and allowance of the account of the Trust Company “as Trustee under the Declaration of Trust”. On this report the court below entered a decree which contained a number of recitals. The first states that Gruber conveyed certain lands in the “City of Clifton,' County of Passaic and State of New Jersey, to the - Deposit Company set forth in two Declarations of Trust made by the - Deposit Company dated December 21, 1906 [dealing with lands of East Ridgelawn Cemetery] and June 3, 1907 [dealing with lands of West Ridgelawn Cemetery] respectively -; that in accordance with the said Declarations of Trust the-Deposit Company took title to the said lands and premises, which it thereafter conveyed to two Cemetery Associations known as East Ridgelawn Cemetery and West Ridgelawn Cemetery. -”
The decree confirmed the special master’s report as filed and approved and allowed the account of the Trust Company “as Trustee under the Declaration of Trust”, authorized the resignation and withdrawal of the Trust Company “as Trustee under said Declarations of Trust”, appointed substitute trustees in place of the Trust Company, vested them “with all powers, privileges and duties of the Trustee appointed under the terms and conditions of the DecIcurations of Trust * * * with full power and authority to liquidate the assets of the Trust Estate to the end that the proceeds may hereafter be distributed to those entitled thereto * * *”. The decree also authorized the trustees to collect all moneys due under the decree of July 18, 1933, of the New Jersey Chancery Court and enjoined all persons from interfering with the possession or the management of the successor trustees and restrained all persons from bringing any suit against “the said Trust Estate“ without first obtaining leave of the court. The decree also reserved jurisdiction to fix the reasonable value of the services of the Trust Company and the Deposit Company “as Trustees under the Declarations of Trust”. The closing paragraph of the decree required “all known shareholders [to appear and] show cause * * *” on June 12, 1944 “why a decree should not be entered relieving the * * * Trust Company from any responsibility in connection with said Trust. * * *” It will be observed that parts of the decree referred to and purported to telieve the Trust Company as trustee under both trusts while other parts of the decree are directed only to the asserted negligence of the Trust Company in not collecting from East Ridgelawn Cemetery that portion of the money decree entered by the New Jersey Chancery Court for the benefit of certificate holders.
In view of the form established for the certificates by both indentures there may be one, and only one, fund established or to be established for the benefit of certificate holders. Such moneys, if any, as may be collected from the Trust Company may be subject to a prior charge in favor of the perpetual care funds of both cemeteries or of either cemetery. The decree of May 29, 1944, purports to deal with any right which any person may seek to assert against the Trust Company; for example, it enjoins “all persons” from interfering with the possession or the management of the successor trustees, and as we have pointed out treats on occasion with both declarations of trust, that of December 21, 1906 as well as that of June 3, 1907. If the certificate holders are entitled to share in a single fund and that fund be subject to paramount equitable liens which may be asserted on behalf of the lot holders of both cemeteries or of either cemetery, the decree of May 29, 1944, and a decree entered in the form suggested by the rule to show cause may affect the rights of the lot holders of both cemeteries or of either cemetery.
We must next proceed to appraise the position of the appellant Kurzrok against this background. Kurzrok, a lot owner in West Ridgelawn Cemetery, but not a certificate holder, appeared pro se in the District Court on June 12, 1944, the return day of the rule to show cause designated in the decree of May 29, 1944, and sought to intervene in the proceedings on the ground that any rights which he and other lot owners in West Ridgelawn Cemetery might have against the Trust Company for breach of trust in respect to the perpetual care fund required to be set up for West Ridge-lawn Cemetery, were prejudiced by the decree of May 29, 1944, and might be affected by any subsequent decree framed as the rule to show cause would suggest. His application to intervene was denied and he appealed to this court.
Counsel for the plaintiffs and for another intervening certificate holder assert, and it is not denied by the appellant, that West Ridgelawn Cemetery is now in receivership in the New Jersey Court of Chancery and that that Court has taken possession of all of the property and assets of the corporation and is presently engaged in administering its affairs. Counsel for the certificate holders concede, however, that the decree of May 29, 1944, unless modified, may affect Kurzrok’s rights and they, as well as Kurzrok, have submitted to us suggested forms of decrees to be entered by this court in order that Kurzrok’s rights may be protected in the court below. In our opinion none of the suggested decrees meets the questions here presented. We think it is clear that Kurzrok’s rights are affected by the decree of May 29, 1944, in its present form and that he was and is entitled to intervention of right pursuant to Rule 24(a) (2) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for the lot owners of West Ridgelawn Cemetery are not and cannot be represented adequately by the certificate holders. Kurzrok’s right to appeal therefore is absolute and will lie from the order of the court below refusing him intervention. See Moore’s Federal Practice, vol. 2, § 24.06, p. 2332, and the authorities cited in note 9. Cf. the circumstances and the ruling in Kennedy v. Bethlehem Steel Company, 3 Cir., 102 F.2d 141. Cf. also old Equity Rule 37, 28 U.S.C.A. § 723 Appendix. Counsel for the certificate holders assert that the decree of May 29, 1944, may be so modified that Kurzrok’s rights will not be affected thereby. If this be so, it is a matter for the District Court to be dealt with by that tribunal as the facts and the law require.
The order appealed from is reversed and the cause is remanded for such action by the court below as may be appropriate.
Emphasis added throughout this opinion.
Neither the answer nor the counterclaim is part of the record before us.
No opinion for publication.
We reach this conclusion despite the statements of counsel, which we accept fully, that the court below by an amendatory order struck out of the decree of May 29, 1944, the two paragraphs, hereinbefore referred to, confirming the report of the special master in all respects and approving and allowing the account of the Trust Company as trustee.
Question: Did the court conclude that an issue was moot?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
HARTFORD-EMPIRE COMPANY, Petitioner, v. Charles B. FARIS, District Judge.
No. 362.
Circuit Court of Appeals, Eighth Circuit.
March 26, 1931.
A. C. Paxil, of Chicago, HI., for petitioner.
Lawrence C. Kingsland, of St. Louis, Mo., for respondent.
PER CURIAM.
Motion for leave to file petition for writ of mandamus and prohibition granted, and petition denied.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
INDUSTRIAL CLEARINGHOUSE, INC., Plaintiff-Appellee, v. BROWNING MANUFACTURING DIVISION OF EMERSON ELECTRIC COMPANY, Defendant-Appellant.
No. 91-1928
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 21, 1992.
Kevin P. Sullivan, Fulbright & Jaworski, Dallas, Tex., W. Wendall Hall, Fulbright & Jaworski, San Antonio, Tex., for Browning Mfg.
Mark J. Zimmermann, Thomas C. Clark, John W. Hicks, Jr., Tori S. Levine, Baker, Glast & Middleton, Dallas, Tex., for Indus. Clearinghouse, Inc.
Before POLITZ, Chief Judge, REAVLEY and DAVIS, Circuit Judges.
REAVLEY, Circuit Judge:
Browning Manufacturing (Browning) appeals from a district court’s interlocutory order allowing Industrial Clearinghouse, Inc. (Industrial) to discover communications between Browning and Browning’s former counsel in this suit between Browning and Industrial. We reverse the district court’s order because there is no evidence to support the district court’s finding that Browning, by suing its former counsel, publicized confidential communications that it made to its former counsel.
I. BACKGROUND
Industrial and Browning have long disputed the ownership of certain inventory in the district court proceeding (the Industrial dispute) from which Browning now makes this interlocutory appeal. Midway through the Industrial dispute, Browning became dissatisfied with its counsel, Canterbury, Stuber, Elder, & Gooch (Canterbury), and retained a different law firm to manage that dispute.
Browning also filed a separate action against Canterbury for legal malpractice (the Canterbury suit), alleging, inter alia, that Canterbury failed to verify the accuracy of facts contained in affidavits that Canterbury prepared for Browning’s employees to sign. Browning also alleged that Canterbury did not adequately prepare Browning’s employee, Richard Schaa, for his deposition in the Industrial dispute because Canterbury failed to review with Schaa his prior testimony in a bankruptcy proceeding. Browning alleged that Canterbury’s failure resulted in damaging inconsistencies between Schaa’s deposition and bankruptcy-court testimony.
After Browning filed the Canterbury suit, but before anything else happened in that action, Industrial served Canterbury with a notice of deposition and subpoena duces tecum by which Industrial requested information concerning Canterbury’s representation of Browning. At the deposition, Canterbury’s representative, Charles Stu-ber, refused to produce documents and answer many of Industrial’s questions because of Browning’s attorney-client privilege.
Industrial filed a motion to compel Canterbury’s testimony. The district court referred the motion to a magistrate, who ruled that Browning, by suing Canterbury, waived its attorney-client privilege as to matters “fairly raised” in Browning’s complaint in the Canterbury suit. Record on Appeal at 260. While accepting Industrial’s waiver-by-publication argument, the magistrate refused to hold that Industrial presented sufficient evidence that the crime/fraud exception to the attorney-client privilege entitles Industrial to secure otherwise-protected information from Canterbury.
After considering the parties’ arguments and the transcript of the hearing before the magistrate, the district court found that “Browning has so compromised the confidentiality requirement of the attorney-client privilege that it has, by its actions, waived the privilege with regard to matters complained of in its state court petition that also bear upon Industrial’s claims in this case.” District Court Opinion at 15. The district court also agreed with the magistrate’s ruling as to the crime/fraud exception to the attorney-client privilege; the court held that “Industrial has made no showing that Browning used its relationship with Canterbury/Stuber to promote intended criminal activity.” District Court Opinion at 12-13 n. 16. So the district court affirmed and adopted the magistrate’s order compelling Canterbury to produce documents and provide deposition testimony concerning matters which were fairly raised by Browning’s complaint against Canterbury. Browning appeals.
II. DISCUSSION
Industrial claims that Browning admitted that it waived its attorney-client privilege as to the issues raised in the Canterbury suit by suing Canterbury, so the only issue now presented is whether the district court correctly held that Browning’s waiver extends beyond Canterbury to third parties like Industrial. But at the hearing wherein the magistrate considered Industrial’s motion to compel, Browning’s counsel argued that “there’s been no waiver.” Record on Appeal at 238. Industrial’s only evidence that Browning admitted to waiving its attorney-client privilege is the parties’ agreed statement of the issue presented to both the magistrate and the district court: District Court Opinion at 11 (emphasis added). Browning waived nothing by agreeing to this issue statement. The phrase “which are waived” required the district court, as it did, to find that a waiver occurred before addressing the waiver’s scope. So Browning legitimately appeals from the district court’s finding that Browning waived its attorney-client privilege by suing Canterbury.
The issue presented to the court is the extent of the waiver of the privilege for those communications which are waived by reason of their inclusion in the malpractice petition, i.e., whether they are waived only as to Canterbury/Stuber’s defense of the malpractice suit, or whether they are waived completely and as to any third party.
The attorney-client privilege exists to encourage clients to be candid with their attorneys. United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir.1982), cert. denied, 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473 (1984). The privilege protects only confidential communications of the client to the attorney. Id. at 538 nn. 8, 9. “ ‘[Disclosure of any significant portion of a confidential communication waives the privilege as to the whole.’ ” Id. at 538 (quoting United States v. Davis, 636 F.2d 1028, 1043 n. 18 (5th Cir.1981)). The confidentiality of a client’s communications may be compromised either through the publication of evidence of the communications themselves or through the publication of evidence of attorney statements or documents that disclose the client’s confidential communications. In re Sealed Case, 877 F.2d 976, 979 (D.C.Cir.1989). The attorney-client privilege protects only evidence of client communications; it “does not protect against discovery of underlying facts from their source merely because those facts have been communicated to an attorney.” El Paso Co., 682 F.2d at 538-39 n. 10.
The only evidence of waiver presented by Industrial and considered by the magistrate and the district court is Browning’s complaint, titled “Original Petition,” filed against Canterbury in Texas state court. Industrial, the magistrate, and the district court fail to specify one single communication of Browning’s that is revealed by the Original Petition, let alone any confidential communication. The Original Petition simply accuses Canterbury of various negligent actions in handling the Industrial dispute on Browning’s behalf. While the Original Petition reveals some things that Canterbury told Browning, it reveals no communication from Browning either directly or by reference to Canterbury’s statements. We thus find no record support for the district court’s finding that Browning waived its attorney-client privilege by suing Canterbury.
We are also concerned that the magistrate and the district court so easily dismissed as dicta Judge Rubin’s statement that “[t]he mere institution of suit against a lawyer ... is not a waiver of the privilege for all subsequent proceedings, however related or unrelated.” United States v. Ballard, 779 F.2d 287, 292 (5th Cir.), cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). Ballard teaches, quite correctly, that the mere institution of suit against an attorney is insufficient to waive the attorney-client privilege as to third parties in a separate action that concerns the same subject matter as the attorney malpractice action. Id. at 291-92; accord Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed.Cir.1985) (“A party does not automatically waive [the attorney-client privilege] simply by bringing suit.”). The institution of suit against an attorney does not waive the privilege even as to matters that are raised in both the malpractice suit and the third party suit. Ballard, 779 F.2d at 291-92. The revelation of confidential communications, not the institution of suit, determines whether a party waives the attorney-client privilege. Thus, if a complaint against an attorney, or the attorney’s response or testimony in the malpractice case, reveals confidential client communications, the client waives the privilege as to the subject matter of the disclosed communications. See, e.g., Laughner v. United States, 373 F.2d 326, 327 (5th Cir.1967) (privilege waived where client “demanded and obtained” factual inquiry into claim that appointed attorney failed to render effective assistance). No such revelation has compromised Browning’s attorney-client privilege.
Finally, Industrial argues that the communications are not protected due to the crime/fraud exception to the attorney-client privilege, and that the district court erred in holding that Industrial is not entitled to Canterbury’s testimony and documents under the crime/fraud exception. To invoke the crime/fraud exception, a party must establish a prima facie case that a crime has been committed. Ward v. Succession of Freeman, 854 F.2d 780, 789-90 (5th Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989). The district court found that Industrial failed to show that any misrepresentations made by Browning were intentional. Industrial presents nothing to show that the district court abused its discretion in making its finding as to Browning’s intent. See id. at 789 (standard of review is abuse of discretion). A party must present evidence of an intent to deceive to establish a prima facie case of fraud or perjury. Therefore, the district court properly rejected Industrial’s claim to Canterbury’s information based on the crime/fraud exception to the attorney-client privilege.
REVERSED and REMANDED.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_r_nonp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America v. William SAMS et al. Appeal of Victor CARLUCCI.
No. 75-1023.
United States Court of Appeals, Third Circuit.
Argued April 28, 1975.
Decided Aug. 4, 1975.
Irving M. Green, New Kensington, Pa., for appellant.
Richard L. Thornburgh, U. S. Atty., Henry G. Barr, Asst. U. S. Atty., John C. Kenney, Acting Asst. Atty. Gen., Robert L. Kruch, Edward S. Christenbury, Larry L. Gregg, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before VAN DUSEN, ADAMS and GARTH, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
The two principal issues to be resolved on this appeal are:
1. Whether a district court may, on a coram nobis petition, annul a conviction under the federal wagering tax statutes when the conviction is based on a guilty plea entered prior to the time the Supreme Court held that the privilege against self incrimination furnished a complete defense against such charges; and
2. Whether the petition here presents a claim for the return of the fine imposed as a result of a conviction under the wagering tax statutes that is barred by the statute of limitations.
I.
On February 18, 1963, Victor Carlucci pleaded guilty to two counts of willful failure to pay the special federal occupational tax imposed on wagering. As a result, he was sentenced to pay a fine of $10,000.
In Marchetti v. United States and Grosso v. United States both decided January 26, 1968, the Supreme Court held that the framework of federal wagering tax statutes “may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination.” Overruling their decisions in Kahriger and Lewis, the Court declared that the practice of gambling was so permeated with criminal prohibitions that prosecution for failure to comply with the requirements of the federal gambling tax statutes would encroach upon the Fifth Amendment’s protection against compulsory self-incrimination.
Subsequently, in United States v. United States Coin and Currency the Supreme Court ruled that the Marchetti and Grosso decisions should be given retroactive effect to invalidate a forfeiture proceeding. Donald Angelini had been convicted of not registering as a gambler and not paying the federal gambling tax. The government, prior to the Court’s decisions in Marchetti and Grosso commenced forfeiture proceedings with respect to $8,674 which Angelini had in his possession at the time of his arrest. The Supreme Court held that the doctrine of Marchetti and Grosso should be applied to reverse the judgment of forfeiture.
This was the background when, almost eleven years after his conviction, Carluc-ci, in June, 1974, filed an application for a writ of error coram nobis. Carlucci requested that the district court vacate, annul and set aside his conviction and refund the fine paid. He predicated his application on the Fifth Amendment, the All Writs Act and section 1346(a)(2) of the Tucker Act. The district court denied all the relief sought. It reasoned that by entering a guilty plea Carlucci had waived any defense under the Fifth Amendment, and that because there was no congressional waiver of sovereign immunity, the court had no authority to order a return of the fine.
II.
On this appeal Carlucci contends that under Marehetti and Grosso the Fifth Amendment provides an absolute bar to his conviction, and that the principle of those cases should be applied retroactively. Carlucci further maintains that since at the time of his conviction he could not have known that the prosecution ran afoul of the Constitution, his plea of guilty was not knowing and voluntary, and therefore his conviction should be vacated.
In addition, the Tucker Act, according to Carlucci, affords the district court the power to order his fine refunded, and a coram nobis proceeding is a proper occasion upon which to present his demand for the return of the money unconstitutionally taken from him. Finally,.Car-lucci argues that since he could not have known prior to the decision of the Supreme Court in Coin and Currency that he possessed a cause of action for the refund of the fine, the statute of limitations did not commence running until the date of that decision.
The government, in response, submits that Carlucci’s guilty plea is not subject to collateral attack because it was voluntarily entered and because Carlucci received assistance of counsel which was adequate with respect to the then-existing law. Even if the conviction is invalid, the United States asserts, the district court has no jurisdiction to order the fine remitted. The six year statute of limitations, according to the government, began running at least at the time of Marehetti and Grosso, and thus the period for filing a proceeding under the Tucker Act elapsed before Carlucci instituted this action. Additionally, the government alleges that there is no statutory authorization for repayment of the fine, and that in any case Carlucci has not qualified for recovery because he has not submitted a claim to the Secretary of the Treasury in conformity with the requirements of 26 U.S.C. § 7422.
For reasons which will be set forth below, we reverse that portion of the district court’s judgment that declined to expunge the conviction, and affirm that portion of the judgment that denied Car-lucci’s Tucker Act claim.
HL
A. The effect of Carlucci’s Guilty Plea on the Availability of Collateral Relief.
In three companion cases of Brady, McMann and Parker the Supreme Court established the general rule that where a conviction is based upon a plea of guilty, the conviction is subject to federal collateral attack only on limited grounds. To invalidate his conviction the defendant must show that he did not make the plea knowingly, intelligently and voluntarily or upon a demonstration that the plea was not uttered with the assistance of counsel competent with respect to the law as it existed at the time of the conviction. In particular, the Court stated that “a voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.”
However, in Bannister v. United States this Court, en bane, decided that the general rule of the finality of guilty pleas did not preclude the assertion in a federal habeas petition of a Fifth Amendment defense by a person who had, prior to the ruling in Leary, submitted a guilty plea to charges under the marihuana tax statutes, Bannister pleaded guilty to both counts of a two count indictment alleging criminal failure to pay the marihuana taxes, and in June, 1967, was sentenced to two concurrent prison terms. Thereafter, the Supreme Court, relying on the rationale of Marehetti and Grosso, held in Leary that the privilege against compulsory self-incrimination provided a defense against an accusation of concealing marihuana without payment of the federal transfer tax. It was the judgment of a majority of this Court, albeit on the basis of somewhat divergent reasoning, that in light of Leary Bannister was entitled to have the writ issue in spite of his guilty plea.
We have interpreted the Bannister decision as meaning that in a situation such as that now before us, where a petitioner seeks to upset an earlier guilty plea on the basis of a decision articulating previously unrecognized constitutional rights,
whether we apply the general rule of the guilty plea trilogy depends on the quality of the right sought to be asserted in the collateral attack. Does the newly-expressed right affect. “the integrity of the conviction”. or does it constitute what [has been] described as an “essentially procedural” change in the law...?
In the present case, the constitutional objection raised by Carlucci, like that in Bannister undermines “the integrity of the conviction.” Indeed, the right asserted is the same as that urged in Bannister — freedom from criminal punishment for not incriminating one’s self by paying a special tax on an activity closely circumscribed by criminal penalties. The Supreme Court, in Coin and Currency gave the following description of the self-incrimination privilege as formulated in Marehetti:
“Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the fact finding process.... Rather, Marehetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance.”
We do not find persuasive the government’s argument that our decision in Bannister has been subverted by the opinion of the Supreme Court in Tollett v. Henderson. There the Supreme Court declared that the defendant’s guilty plea to an indictment for murder foreclosed him from litigating on habeas the issue of racial discrimination in the selection of the grand jury that had indicted him. Eschewing an analysis solely in terms of a knowing waiver of a constitutional right, the Court stated that in such cases the focus of the habe-as inquiry should be on “the nature of the advice and the involuntariness of the plea, not the existence as such of an antecedent constitutional infirmity.”
The situation before us, however, is distinguishable from that in Tollett. In Tollett, as in McMann, Brady and Parker, the nature of the recently acknowledged constitutional right which formed the basis for the challenge to the conviction was essentially procedural. Here, in contrast, the assertion is that the very conduct charged against Carluc-ci is constitutionally privileged.
In this case as in Bannister, and unlike Tollett and the cases of the trilogy, there is no longer any governmental interest in continuing to punish the offender. In Tollett the state of Tennessee had a legitimate continuing interest in persisting with the conviction and punishment of the perpetrator of the murder at issue. There was also an on-going public concern in the chastening of those who had committed the crimes involved in Parker, McMann and Brady. Here, however, since the Supreme Court has held that the conduct in question is not constitutionally punishable, upholding the conviction will not vindicate any legitimate societal goal.
Also there is no difficulty here in assessing what course Carlucci would have followed if he had, at the time of his conviction, known of his rights under Marchetti. In Tollett it is difficult, perhaps impossible, to determine whether the defendant, if he had known the grand jury had been selected in a racially discriminatory manner, would have voluntarily waived his right to challenge the indictment in exchange for the prospect of a less burdensome sentence following a guilty plea. We may be quite certain on the other hand, that if Carluc-cf had known of his Fifth Amendment right under Marchetti, and had been competently counseled, he would not have pleaded guilty. For here, unlike in Tollett, the constitutional right in question is not merely one of several possible “pleas in abatement” but a complete defense. Vacating the plea therefore does not present the United States with the arduous task of attempting, years after the trial would originally have taken place, to piece together a case for the prosecution. Carlucci is not now contesting the allegation that he did not pay the statutorily required taxes. Rather, he professes that his failure to do so was privileged under the Constitution.
To hold that Carlucci’s guilty plea prevents him from asserting the Fifth Amendment defense on collateral review would be inconsistent with the solicitude which the Supreme Court has evidenced for allowing defendants a realistic opportunity to assert the self-incrimination defense to prosecutions like those under the wagering tax statutes. The most significant case in this respect is Haynes v. United States. Charged with possession of an unregistered firearm, Haynes moved before trial to dismiss the indictment because the statute abridged his privilege against self-incrimination. After the trial court denied the motion, Haynes pleaded guilty. On his appeal from that conviction, the Supreme Court stated, “Petitioner’s plea of guilty did not, of course, waive his previous claim of constitutional privilege.”
Also in Leary, the defendant, who did not invoke the self-incrimination defense until after the verdict, took the stand and testified that he had indeed acquired the marihuana without paying the tax. “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged,” the Supreme Court said in Tollett in explaining the finality accorded to guilty pleas, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” The Court held, however, that Leary’s admission that he had committed those acts which constituted a violation of the statute did not preclude him from contending, after the trial, that his conviction abrogated the Fifth Amendment.
The aspect of the self-incrimination privilege pressed by Leary before the Supreme Court, Justice Harlan stated, was not the right to remain silent at trial, but rather the right not to be punished for his previous failure to obey a statute which required an incriminatory act. “His admission at trial that he had indeed failed to comply with the statute was perfectly consistent with the claim that that omission was excused by the privilege.”
Thus the seeming incongruity between the Supreme Court’s treatment of the self-incrimination defense and its later guilty plea cases intimates that the Court may, sub silentio, have recognized the distinction drawn in Bannister. In any case, there would appear to be no meaningful difference between a defendant who, like Leary, takes the stand and testifies to his guilt without invoking the Fifth Amendment defense, and one who admits his culpability more succinctly by entering a guilty plea.
In Blackledge v. Perry the Supreme Court signaled that there are exceptions to the general rule articulated in Brady, McMann, Parker and Tollett. Perry, after a trial without a jury, was convicted in the state district court of the misdemeanor of assault with a deadly weapon. As a consequence of that conviction, Perry had an automatic right to a trial de novo in the superior court. After Perry evidenced his intent to exercise that right, the prosecutor obtained an indictment charging him with the felony of “assault with a deadly weapon with intent to kill and inflict various bodily injury.” The indictment was grounded on the same assault that had been the basis of the earlier misdemeanor conviction. Perry pleaded guilty to the felony charge. Subsequently, however, he sought federal habeas corpus on the ground that the felony indictment deprived him of due process because it punished him for exercising his statutory right to a trial de novo. The Supreme Court held that, in spite of the guilty plea, federal habeas was available. The Court distinguished the holdings in Tol-lett and the McMann triad on the ground that the constitutional claims there did not, as did Perry’s argument, challenge the very power of the state to bring the defendant into court to answer the charge against him. In McMann, for example, the defendants could have been brought to trial without the use of the allegedly coerced confessions. And Tol-lett, Justice Stewart pointed out, could have been brought to trial for the same crime through a new indictment by a properly selected grand jury. In Perry, on the other hand,
The nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge, in the District Court, the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon [Perry] to answer to the more serious charge in the Superior Court. Unlike the defendant in Tollett, Perry is not complaining of “antecedent constitutional violations” or of a “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Rather, the right that he asserts and that we today accept is the right not to be hailed into court at all upon the felony charge. The very initiation of the proceedings against him in the Superior Court thus operated to deny him due process of law.
The right asserted by Carlucci is somewhat akin to that involved in Perry in that Carlucci is not objecting to the procedures by which he was arrested and convicted. Rather, he claims “the right not to be haled into court at all” because the institution of the prosecution itself derogated from his right not to incriminate himself.
Accordingly, we conclude that the district court erred in holding that, because of Tollett, Carlucci’s guilty plea is not open to collateral attack on the basis of Marchetti and Grosso.
B. Application of the Statute of Limitations to the Claim for Refund of the Fine.
Even if we assume arguendo that the Tucker Act provides authority for district courts to order the return of fines based on convictions derogating from constitutional rights, and further assume that a Tucker Act claim may be raised during the course of a coram no-bis proceeding, we must, because of the'statute of limitations, conclude that the district court properly denied Carlucci’s plea for restitution of the penalty.
Actions against the United States such as the one pressed here are controlled by the statute of limitations contained in 28 U.S.C. Section 2401(a). That section provides: “Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” The protection afforded by section 2401(a) “may not be waived by the United States, and where it.appears to the court that the time for bringing the action has run, the action must be dismissed.” Therefore, if Carlucci’s action for the return of the fine imposed in 1963 was filed out of time, the district court was without authority to grant the monetary relief requested.
Since the statute requires that the complaint be filed within six years “after the right of action first accrues,” a critical question is when Carlueci’s right of action “accrued.” The government argues that the cause of action accrued at the time the fine was imposed because all the events necessary to make out the claim for a refund had occurred at that time. Alternatively, the government contends that even if, as Carlucci asserts, the statute of limitations did not begin running until the claimant had reason to believe that he had a recoverable claim, the cause of action “accrued” on the date of the Supreme Court decisions in Marchetti and Grosso that the Fifth Amendment, properly interpreted, provided a defense to criminal charges under the gambling tax statutes.
Carlucci, on the other hand, contends that the limitation period did not begin when the fine was levied because Kahriger and Lewis indicated that, at least at that time, he did not have an enforceable claim against the United States. The statute began to run, Car-lucci asserts, when the Supreme Court declared in Coin and Currency that the Marchetti-Grosso interpretation of the Fifth Amendment would be applied retroactively.
We conclude that the statute of limitations commenced running no later than January 29, 1968, the day Marchetti and Grosso were decided. Consequently, Carlucci’s request for the return of the fine — a claim not presented until June 4, 1974 — was beyond the jurisdiction of the district court.
In resolving the issue regarding when the statute of limitations commenced running, we must bear in mind that the time when the statute begins running is a matter of congressional intent. The judiciary is not at liberty to create exceptions to or to enlarge the waiver of immunity by the government.
There is no specific evidence of the legislative intent with regard to the time from which we should measure the period specified in section 2401(a). In construing similarly worded waivers of sovereign immunity courts have generally defined a right of action as “accruing” upon the occurrence of the final event necessary to complete the elements of the claim. “A claim first accrues when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” Here, the wrongful conduct was complete upon payment of the fine, and the statute of limitations would therefore generally begin to run at that time.
The federal courts have, at least in some instances, postponed the commencement of the limitation peridd regulating suits against the United States where the claimant did not know, and in the exercise of reasonable diligence could not learn, that he had been injured by the government’s allegedly wrongful conduct. The Court of Claims has provided the following exposition of this variant:
In certain instances the running of the statute will be suspended when an accrual date has been ascertained, but plaintiff does not know of his claim. Plaintiff must either show that [the United States] has concealed its acts with the result that plaintiff was unaware of their existence or [plaintiff] must show that its injury was “inherently unknowable” at the accrual date.
This exception to the normal commencement of the limitations period does not appear applicable to the present claim, however, because Carlucci was aware of the damage to him at the time the fine was imposed. His situation is therefore distinguishable from that of the plaintiffs in Japanese War Notes who allegedly did not know that the United States was circulating counterfeit Japanese currency. Nor is his claim analogous to that of a medical malpractice plaintiff who cannot with reasonable diligence learn of the physician’s negligent action or of his own injuries until some future time.
In United States v. One 1961 Red Chevrolet Impala Sedan the claimant sought compensation for property which had been forfeited to the government because of its use in the conduct of a wagering operation that did not comply with the federal gambling tax statutes. The Fifth Circuit ruled that under section 2401(a) the limitations period did not begin to run against the claimant until the decisions in Marchetti and Grosso gave notice that the owner of the automobile had a Fifth Amendment defense against its seizure. That Circuit declared that the period should not commence until plaintiff had a “reasonable probability of successfully prosecuting his claim against the government,” and that prior to those Supreme Court decisions his suit would probably have been dismissed on the basis of Lewis and Kah-riger.
We need not, however, determine at this time whether section 2401(a) commenced running when the fine was imposed or when the Marchetti and Grosso decisions were announced. Under either test, Carlucci’s claim would be barred. This is so, because in any event the decisions in Marchetti and Grosso provided Carlucci with reasonable grounds to believe his rights had been violated. Although there had been no ruling that the Marchetti doctrine would be applied retroactively for the benefit of persons like Carlucci, there was certainly nothing indicating that Carlucci could not obtain a refund if he pursued one promptly. Even if we accept, ar-guendo, Carlucci’s argument that the running of section 2401(a) was suspended until such time as he had reason to know he might succeed with his claim against the United States, since Marchetti and Grosso were handed down more than six years before Carlucci applied for a refund, his claim is time-barred.
IV.
Accordingly, that portion of the judgment of the district court denying Car-lucci’s motion to set aside his conviction will be reversed, and that portion of the judgment refusing Carlucci’s request for a refund of the fine will be affirmed.
. Carlucci was convicted of violating 26 U.S.C. § 7203. He was indicted under 26 U.S.C. §§ 7201, 7262 and 18 U.S.C. § 371 as well. All of the allegations of the indictment related to his failure to pay special taxes on wagering. See 26 U.S.C. §§ 4401, 4411. See also 26 U.S.C. § 4412 mandating all persons required to pay the tax under § 4411 to register with the Internal Revenue Service. For a description of the statutory scheme for taxing wagers, see Marchetti v. United States, 390 U.S. 39, 42-44, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 65-66, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).
. 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889.
. 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906. See also Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968) (invalidating federal fire-arm registration statutes on similar self-incrimination grounds); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) (striking down the marihuana transfer tax for the same reason).
. Marchetti, 390 U.S. at 42, 88 S.Ct. at 699.
. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953).
. Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955).
. 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).
. 28 U.S.C. § 1651(a) provides:
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
. 28 U.S.C. § 1346(a) provides:
“The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:...
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort..
. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).
. Brady, 397 U.S. at 757, 90 S.Ct. at 1473.
. 446 F.2d 1250 (3rd Cir. 1971).
. 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).
. 26 U.S.C. § 4744(a)(2).
. Smith v. Yeager, 459 F.2d 124, 126 (3rd Cir. 1972).
. 401 U.S. at 723, 91 S.Ct. at 1045.
. 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
. 411 U.S. at 266, 93 S.Ct. 1602.
. Id.
. Cf. Bannister, 446 F.2d at 1254 (Biggs, J.); 446 F.2d at 1264-65 (Gibbons, J., concurring).
. We need not at this time determine the effect of a guilty plea in a plea bargaining situation where the self-incrimination defense does not apply to all of the charges. For instance, a defendant charged with possession of marihuana with intent to distribute and also accused of failure to pay the transfer tax may agree to plead to the tax count in exchange for dismissal of the other charge, the validity of which is unaffected by Leary. See Gaxiola v. United States, 481 F.2d 383 (9th Cir. 1973); Bannister, 446 F.2d at 1251-53.
. See Coin and Currency, 401 U.S. at 723, 91 S.Ct. 1041.
. See Bannister, 446 F.2d at 1254, 1255; United States v. Russo, 358 F.Supp. 436 (D.N.J. 1973).
. Tollett, 411 U.S. at 268, 93 S.Ct. 1602.
. Marchetti, 390 U.S. at 41-42, 88 S.Ct. 697. See Bannister, 446 F.2d at 1254, 1264; United States v. Liguori, 430 F.2d 842 at 849 (2 Cir.)
. Contrast McMann, 397 U.S. at 733, 90 S.Ct. 1441.
. See Bannister, 446 F.2d at 1254-55, 1264-65; Liguori, 430 F.2d at 849.
. 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968).
. Id. at 87 n. 2, 88 S.Ct. at 725.
. 397 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.
. 411 U.S. at 267, 93 S.Ct. at 1608.
. 395 U.S. at 28, 89 S.Ct. at 1544.
. In Grosso, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the defendant had asserted in the district court only that the privilege against self-incrimination foreclosed his conviction for failure to pay the excise tax on wagering. He had not raised the constitutional issue with respect to the charges of failing to pay the occupational tax on wagering and conspiracy to avoid the latter tax. Even in the Supreme Court his arguments did not address the validity of the occupational tax allegations. The Supreme Court, however, held that in light of its earlier decisions in Lewis and Kahriger, “we are unable to view his failure to present this issue as an effective waiver of the constitutional privilege.” 390 U.S. at 71, 88 S.Ct. at 715. See also United States v. Manfredonia, 391 F.2d 229 (2d Cir. 1968); Greenwood v. United States, 392 F.2d 558 (4th Cir. 1968).
. 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
. 417 U.S. at 30-31, 94 S.Ct. at 2104.
. Although the Court is aware of the contrary precedent in the District of Maryland in Bluso v. United States, 375 F.Supp. 1085 (D.C.Md. 1974), we find the rationale there unpersuasive.
. See Pasha v. United States, 484 F.2d 630, 632 (7th Cir. 1973); DeCecco v. United States, 485 F.2d 372, 373 (1st Cir. 1973); United States v. Summa, 362 F.Supp. 1177, 1180 (D.Conn.1972), aff’d No. 73-1153 (2d Cir., filed August 14, 1973).
. See Pasha, 484 F.2d at 633; DeCecco, 485 F.2d at 373-74; Summa, 362 F.Supp. at 1179; United States v. Lewis, 478 F.2d 835, 836 (5th Cir. 1973).
. Christian Beacon v. United States, 322 F.2d 512, 514 (3d Cir. 1963). As the Fifth Circuit has stated more recently, “Failure to bring an action within the time specified under the Tucker Act does not merely provide the government with a waivable defense to the action, but deprives the district court of jurisdiction to hear the action at all.” United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1357 (5th Cir. 1972).
. Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968). See Crown Coat Front Co. v. United States, 386 U.S. 503, 514, 517, 520, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967).
. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Sori-ano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968).
. Japanese War Notes Claimants Ass’n v. United States, 373 F.2d 356, 358, 178 Ct.Cl. 630 (1967). See Cosmopolitan Mfg. Co. v. United States, 297 F.2d 546, 547, 156 Ct
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BOWERS v. BOWERS.
No. 8686.
United States Court of Appeals District of Columbia.
Argued May 12, 1944.
Decided June 26, 1944.
Mr. Ethelbert B. Frey, of Washington, D. C., for appellant.
Mr. Ben Lindas, of Washington, D.C., for appellee.
Before GRONER, Chief Justice and EDGERTON and ARNOLD, Associate Justices.
EDGERTON, Associate Justice.
This is an appeal by the defendant wife from a judgment for the plaintiff husband in a suit for divorce. The complaint alleged in substance, and the District Court found, “that on July 22d, 1937, plaintiff and defendant mutually agreed to live separate and apart and that in accordance with the said agreement the said parties have lived separate and apart since the said date to, the date of this judgment and that said parties have not lived together as husband and wife since the said date of July 22, 1937.” The court ruled that the plaintiff was entitled to a divorce on the ground of separation for five years by mutual consent.
The District of Columbia Code 1940, § 16 — 403, authorizes divorce for “voluntary separation from bed and board for five consecutive years without cohabitation.” The issue turns upon the continuing character of the separation, not its origin; but its origin is evidence of its continuing character. We have held that if both parties voluntarily and continuously acquiesce in separation during five years, the statute authorizes divorce even though the separation was not originally voluntary on both sides. Parks v. Parks, 73 App. D.C. 93, 116 F.2d 556. It is equally true that if either party does not voluntarily and continuously acquiesce in separation during five years, the statute does not authorize divorce even though the separation was originally voluntary on both sides. But one who contends that a voluntary separation ceased to be voluntary should have the burden of proving his contention. The separation in the present case was originally voluntary on both sides. Although the wife after-wards asked her husband to return to her, the court was “not convinced” that her requests were “made in good faith.” It follows that the judgment should be affirmed.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
AUTO OWNERS INSURANCE COMPANY, a Michigan Corporation, Plaintiff-Appellee, v. John David BASS and Gloria Jean Bass, Defendants-Appellants.
No. 80-7741.
United States Court of Appeals, Eleventh Circuit.
Sept. 1, 1982.
Hornsby & Schmitt, Steven F. Schmitt, Tallassee, Ala., for defendants-appellants.
Lloyd, Ennis & Lloyd, John T. Ennis, Sr., Birmingham, Ala., for plaintiff-appellee.
Before GODBOLD, Chief Judge, MERRITT and HENDERSON, Circuit Judges.
Honorable Gilbert S. Merritt, U. S. Circuit Judge for the Sixth Circuit, sitting by designation.
GODBOLD, Chief Judge:
This is an Alabama diversity suit by Auto Owners Insurance Company against its insureds John David Bass and Gloria Jean Bass seeking to recover amounts it had paid to loss payees for a fire loss on the Bass home and also claiming punitive damages for fraud by the Basses. The precise allegations are significant and will be discussed later in this opinion, but, described in general terms, Auto Owners asserted that John Bass intentionally burned the home and made false and fraudulent claims and statements concerning both the fire and the losses incurred. It charged that Gloria knew of John’s setting the fire and participated in false swearing concerning the fire and the loss. John and Gloria counterclaimed for amounts allegedly still owing under the policy. Following a trial in which John appeared pro se for himself and his wife, a jury found for Auto Owners and awarded $82,239 compensatory damages and $50,000 punitive damages. We affirm the judgment against John and reverse the judgment as to Gloria.
I. The defective verdict
The general jury verdict read:
We, the Jury, find for the plaintiff and award $82,239.22 compensatory damages and $50,000.00 punitive damages.
This the 19th day of August, 1980.
There were no special interrogatories. The court entered judgment as follows:
It is hereby the Finding and Judgment of this Court that John David Bass and Gloria Jean Bass did commit willful and malicious fraud against the Plaintiff, Auto-Owners’ Insurance Company. It is hereby
ORDERED ADJUDGED and DECREED as follows:
The Defendants shall pay to Plaintiff the sum of $82,239.22 plus six percent interest from the date of this Judgment in compensatory damages. The Defendants shall also pay to Plaintiff the additional sum of $50,000.00 plus six percent interest from the date of this Judgment in punitive damages with costs assessed against the Defendants.
No one objected to the form of the verdict, or the proposed forms submitted to the jury, or the form of the judgment. On appeal the defendants contend the judgment should be set aside and a new trial granted because it is based on a verdict for the plaintiff but against no one. Unquestionably the verdict is defective. If a verdict is so ambiguous a reasonable person cannot determine the jury’s intent the verdict cannot stand. See generally Denham v. Yancey, 19 Ala.App. 45, 95 So. 201 (1922).
[T]he sufficiency of a verdict, reasonably interpreted as to its language, depends upon it being capable of definiteness when referred to the pleadings and papers in the case, the pertinent entries, and under the interpretation of the law given by the court to the jury.
In Hopkins v. Duggar, 204 Ala. 626, 628, 87 So. 103, 104, Mr. Justice Sayre observed:
“The real question is whether the verdict was not hopelessly defective and so afforded no proper basis for the judgment. This point was not raised in the trial court. It is raised now for the first time. In order that the objection should avail it is necessary that the judgment be found to be wholly void. Intendments are indulged in favor of judgments.”
Was, then, the verdict rendered void, under the issues of fact submitted by the court and instructions interpreting the law having application thereto, or was it definite and complete when referred to the issues submitted, to support the judgment entered thereon?
Penney v. State, 229 Ala. 36, 155 So. 576, 578 (1934).
[Wjhere the language of judgments, or verdicts can be reasonably interpreted by reference to the pleadings and papers in the case, and the instructions of the court, then on such basis intendments are indulged in favor of judgments. The real question is whether the verdict was hopelessly defective thereby affording no proper basis for a judgment.
Reynolds Brothers Lumber Co. v. W. S. Newell Construction Co., 284 Ala. 352, 224 So.2d 899, 902 (1969).
One of the few federal cases is Moore v. Harjo, 144 F.2d 318, 321 (10th Cir. 1944) where the court said:
Where a judgment or decree is ambiguous or obscure, and fails to express the final determination of the court with clarity or accuracy, reference may be had to the pleadings, the verdict, the findings, and the entire record for the purpose of ascertaining what was determined.
We need not pause over the argument that the verdict can have no effect because it does not say “against defendants” (or a named defendant). The verdict was intended to be against some one or more persons. John and Gloria were the only defendants and the only persons against whom the damages referred to in the verdict could be awarded. The question rather is whether the verdict can be interpreted reasonably and with sufficient certainty as being against both John and Gloria, or against only one of them, and if one which one. In pursuit of this inquiry we turn to examination of the pleadings, the evidence and events at the trial, and the jury instructions.
The complaint alleged that Auto Owners issued a policy to the defendants on their home. It charged that John committed acts of fraud or false swearing by:
(a) deliberately causing an incendiary fire in their dwelling with intent to defraud;
(b) filing a false and fraudulent inventory;
(c) willfully concealing material facts about the contents of the home and the cause of the fire;
(d) falsely swearing to material facts in a statement given the company.
It charged Gloria knew or should have known of John’s fraudulent conduct or false swearing with intent to defraud the company. Finally, it alleged that as a direct and proximate result of the fraudulent conduct of the defendants the plaintiff paid fire loss proceeds to two loss payees.
The pretrial order restated plaintiff’s position to be: that John, with the knowledge of Gloria, set fire to the house; that both committed fraud in causing the fire to be set; alternatively, as to Gloria, if she had no knowledge of a plan to burn the house, she conspired to conceal from the insurance company the facts concerning the loss.
We have read the record. There was sufficient evidence to submit to the jury the issue of liability of Gloria on the basis that she knew of John’s setting the fire. She was present at the home with John and her children when the fire occurred during early morning hours. She was dressed when she escaped from the house. There was some inconsistencies in her stories about removal of items from the house. Also the evidence permitted the jury to infer that she assisted in concealing facts on the cause of the fire and the extent of loss. Thus the jury could have found her liable. This is a long way from saying with any degree of certainty that a verdict against her was what the jury had in mind.
John was the primary actor throughout and Auto Owners’ primary target at trial. There was no direct evidence of who, if anyone, set the fire. Experts testified that they found evidence that an accelerant— gasoline or a similar means — had been used, and they found other evidence that the fire had been set. Much of the trial was devoted to testimony concerning the family’s precarious financial position. Mortgages on the house were in default. John was being pressed for payments. He was overdrawn in his bank accounts, and he was earnestly seeking money. The fire occurred April 17, 1979. On March 12, 1979, John had increased the coverage on the dwelling from $84,000 to $90,000, which increased other coverages under the homeowner’s policy as well. Auto Owners’ stated theory was that John set the fire. It made no contention that Gloria set it (beyond a single statement in closing argument, discussed below). The inventory of personal property destroyed was prepared by John; Gloria stated that from time to time she told him of items that she had remembered that should be included. The complex financial dealings preceding the fire were carried on by John.
In approximately an hour of oral argument Auto Owners examined minutely John’s affairs and conduct before, during and after the fire, and connected up its proof to every theory of liability against him for both compensatory and punitive damages. During this hour there was but a single reference to alleged liability of Gloria. Counsel said “John Bass and Gloria Jean Bass burned that house down.”
We have considered the jury instructions not for correctness, because there was no objection to them, but to see if they assist in resolving the ambiguity of the verdict. Insofar as intent of the jury to subject Gloria to judgment, they contribute no certainty to the uncertain verdict. The instructions are a confusing mixture of language concerning liability of the husband, liability of the defendant (singular), and liability of the defendants (plural) (emphasis is added throughout):
One of the things that the Auto Owners claim is that one or both of the insured with actual intent to deceive or to increase the loss included some items in their proof of loss additional to those actually destroyed by the fire in that proof of loss and that the policy is voided thereby. And I charge you that if an insured with actual intent to deceive or to increase the loss does include items additional to those items actually destroyed by fire in his proof of loss, then the policy is voided and the defendant may not recover any proceeds under the policy and the plaintiff should recover its actual damages claimed which — excuse me, its actual damages which approximately resulted from the defendants’ said acts or actions.
Another aspect of the case, which the insurance company says occurred, is that the defendant deliberately and with intent to defraud set fire to his own house for the purpose of collecting under his policy. And the law is that if you find by a preponderance of the evidence that the defendant wilfully set the fire which caused the destruction of his home and ear, you must find for the insurance company and award damages in an amount that the preponderance of the evidence shows the insurance company paid out of the investigation, the payment of mortgages and the other items of expenses that would not have been incurred but for the said act of the defendants.
Now, in this case the insurance company has sought not only its actual damages, which it says resulted approximately from the wrongful acts of Mr. and Mrs. Bass, it claims punitive damages of fifty thousand dollars. That is in addition to actual damages. In order to award punitive damages you must find that the defendant acted maliciously, wilfully, or with reckless disregard for the rights of others or that he or she made false statements knowingly and with the intent to cheat. Now, the intentional burning of a dwelling with intent to defraud an insurance company is by law a malicious and wrongful act with reckless or wanton disregard for the rights of others. If you find that the defendant committed arson by deliberately burning his house, you should award actual damages and you may award punitive damages to the insurance company. And if you feel the evidence shows by a preponderance of it, a wilful and wrongful act as I have described to you by Mr. Bass and Mrs. Bass, you may include in your award an amount of money for punitive damages which you feel with [sic] adequately punish the wrongdoer and set an example to others who might be inclined to do likewise.
The trial court instructed as follows on the alternate forms of verdict:
The first of them is a proposed jury verdict for the plaintiff insurance company. “We the jury find the plaintiff — excuse me — find for the plaintiff and award blank dollars compensatory damages.” Now, that is the amount that will compensate the insurance company for whatever damages occurred to it because of a wrongful act if any by the Basses. “And blank dollars punitive damages.” The punitive damages are the damages to punish the Basses for the wrongful act under the circumstances that I have described to you if they committed any such wrongful act. I will go back over: “We the jury find for the plaintiff and award blank dollars punitive damages. This the blank day of August, nineteen eighty.” Add a line here under that line, foreperson. You will go back to the jury room and select one of your members to act as your foreperson. That person will preside over your deliberations and will be your spokesman here in court. [Second,] [n]ow, if on the other hand you find in favor of the defendant in this case on their claim on the policy. If you find that they bona fidely, as I have described to you, took out this insurance policy and they had nothing to do with setting this fire, as I have described it, then you would enter a verdict, “We the jury find for the defendants and award blank dollars compensatory damages,” bear in mind they do not seek punitive damages, “this the blank day of August, nineteen eighty.” And a place for the foreperson. The foreperson will sign the verdict that you may enter and will date it and will fill in the amount of damages. Now, I remember when I was a student of law, considered myself one, I had a little trouble at times remembering which was the plaintiff and which was the defendant. You will notice that up here at the top of the name of the case is set out and it says the Auto Insurance — Auto Owners Insurance Company, plaintiff, and John David Bass and Gloria Jean Bass, defendants, so you could always look up there and solve any problem may have there. [Third] the last possible verdict is that you will find that neither the plaintiff nor the defendant proved its right to recover from the other side; the parties will be left as they are. In that event you may enter the verdict, “We the jury find neither for the plaintiff nor for the defendants. This the blank day of August, nineteen eighty.”
Considering all of these circumstances we have outlined — the allegations as further developed in the pretrial order, the evidence, oral argument, and the instructions to the jury, there can be no reasonable doubt that the jury intended to assess compensatory and punitive damages against the principal actor John. But it cannot be said with any degree of certainty that the verdict was also intended to reach Gloria, who was not a central actor and was only a secondary target at trial. Plaintiff’s brief devotes a single page to the matter of the defective verdict, and makes only the points that John and Gloria could be held jointly and severally liable as concurrent tort-feasors and that the evidence was sufficient to support a verdict against both of them. Both statements are correct, but neither addresses the point in issue.
II. Other points
Remarks by Auto Owners’ counsel made to the jury in closing argument, not objected to, were not so improper and prejudicial to require reversal. A comment on defendants’ failure to call a fire expert who had been employed by their first attorney was not error at all. Generally, counsel in a civil trial may comment on the failure of a party to call an available witness whose testimony the party would naturally be expected to produce if favorable to him. United States v. Certain Land in City of Fort Worth, Texas, 414 F.2d 1026, 1028 (5th Cir. 1969). The second comment, that Mr. Bass “has had two prior attorneys and now he is representing himself. You make your own judgment on that,” was inappropriate but certainly not grounds for reversal.
The instruction to the jury concerning failure to produce a witness was not incorrect and moreover was not objected to.
The court did not abuse its discretion in allowing testimony from a plaintiff witness not listed on the pretrial order. The witness was an expert who substituted for another expert listed in the pretrial order. Defendants were informed of this change a month prior to the scheduled trial date and did not object to the witness’ testimony at trial.
There was no error in expert witness Johnson’s testifying to the absence at the scene of the fire of evidence of the existence of personal items claimed to be in the house.. The absence of valuable or sentimental items from a fire scene is circumstantial evidence that the fire was set. Moreover, Johnson’s testimony was relevant to defendants’ counterclaim asking punitive damages for willful refusal to pay a valid claim.
The trial court denied a motion to have the jury view the scene of the fire. The fire had occurred 16 months before the trial and 30 to 35 miles from the courthouse. More than 100 photographs taken shortly after the fire were introduced into evidence. Whether to allow the jury to visit the scene was in the discretion of the district court. Johnson v. William C. Ellis & Sons Iron Works, Inc., 604 F.2d 950, 958 (5th Cir. 1979). See also Fed.R.Evid. 403.
The judgment is AFFIRMED as against John David Bass, REVERSED as against Gloria Jean Bass.
. Arguably the motion to dismiss should have been granted as to the “should have known” allegation, but this issue was not raised on appeal.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_usc1
|
26
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Appellant, v. Paul WHITE and Anna Lee White, Appellees.
No. 6974.
United States Court of Appeals Tenth Circuit.
Dec. 31, 1962.
Robert L. Waters, Attorney, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Melva M. Graney, Attorneys, Washington, D. C., Lawrence M. Henry, U. S. Atty., and Merle R. Knous, Asst. U. S. Atty., Denver, Colo., on the brief), for appellant.
Stanley L. Drexler, Denver, Colo. (Ellis J. Sobol, Denver, Colo., on the brief), for appellees.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
PICKETT, Circuit Judge.
This tax refund case presents the question of the appropriate treatment, for purposes of federal income taxation, of a $175,000 payment received upon a transfer of a mineral interest in Colorado lands. In their joint federal income tax return for 1956, the taxpayers, Paul White and Anna Lee White, reported the payment as income from the sale of a capital asset pursuant to Sections 1201 and 1202 of the Internal Revenue Code of 1954. A deficiency was assessed on the theory that this sum constituted ordinary income, and, after paying the tax and filing a claim for refund, which was disallowed, the Whites brought this suit to recover the amount of the tax paid, plus interest. The district court held that the transfer did not have the characteristics of a lease, but “was intended to be a true conveyance in fee of the minerals within and underlying the land described in the deed”, and that the consideration received therefor was a capital gain for income tax purposes. Judgment was entered accordingly, and the United States appeals.
The essential facts are not in dispute. In 1924 the taxpayers bought some land in Jefferson County, Colorado. About 1953 or 1954, one Schwartzwalder, an amateur geologist, discovered a valuable uranium deposit on a quarter section of the Whites’ land. He entered into a mineral lease with the Whites in February 1955, but it subsequently became apparent that Schwartzwalder was unable to satisfactorily develop the property for the production of minerals. Reliable surveys indicated that the lands contained uranium deposits valued at approximately $1,000,000, and Schwartzwalder and the Whites agreed that it would be to their best interests to find responsible third parties to mine and market this deposit. Ultimately, it was agreed that the minerals, together with Schwartzwalder’s leasehold, should be sold to Denver-Golden Oil and Uranium Company, a Colorado corporation.
The Whites’ interest was transferred on February 16, 1956, by an instrument entitled “Mineral Deed”. This deed, with the usual warranty of title, recites that the Whites “have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell, convey and confirm unto” Denver-Golden Oil and Uranium Company, “its successors and assigns forever, all and each of the ores and minerals, of whatsoever class or kind, EXCEPT oil, gas, casinghead gas or other gaseous or vaporous substances,” on the aforesaid quarter section of land. As a consideration for this transfer the Whites received $175,000 and “a royalty of ten per centum (10%) of the gross value of all minerals mined, marketed and sold from the premises, said gross value being determined by payments received for all ores including bonuses and freight allowances but after deduction of actual costs of milling, smelting, treatment, cost of transporting the ores, and imposition of penalties of [sic] any; * * The provisions of the deed did not require the grantee to mine or develop the mineral interest in any manner, nor did the grantor retain any reversionary rights to the minerals conveyed. At the same time, Schwartzwalder, with the consent of the Whites, assigned his lease interest in the property to Denver-Golden Oil and Uranium Company for $275,000.
Relying on Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199, and like cases, the United States insists that the $175,000 is taxable as ordinary income subject to the allowance for depletion. The government asserts that, by virtue of the reservation of the so-called “royalty,” the taxpayers retained an “economic interest” in the property. Its position is that, regardless of the circumstances, the effect of reserving or retaining an “economic interest” in a transfer of minerals is that all amounts, including a lump sum payment, received by the transferor constitute ordinary income.
The Supreme Court has considered and utilized the concept of an “economic interest” in a number of cases involving mineral properties. E. g., Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747; Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347; Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062; Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343; Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277; Helvering v. Elbe Oil Land Dev. Co., 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904; Helvering v. O’Donnell, 303 U.S. 370, 58 S.Ct. 619, 82 L.Ed. 903; Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897; Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324; Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489. Although the issue presented in these cases was uniformly whether the taxpayer was entitled to depletion allowances on periodic payments received by virtue of an interest in mineral producing properties, or, alternatively, whether certain income from mineral production should be attributed to one taxpayer or another, the principle of “economic interest” has been seized upon as dispositive in reaching a correct solution to all problems involving the taxation of transfers of mineral interests. E. G., Laudenslager v. Commissioner, 3 Cir., 305 F.2d 686; Albritton v. Commissioner, 5 Cir., 248 F.2d 49; Hamme v. Commissioner, 4 Cir., 209 F.2d 29, cert. denied 347 U.S. 954, 74 S.Ct. 679, 98 L.Ed. 1099; Gray v. Commissioner, 5 Cir., 183 F.2d 329; Choate v. Commissioner, 10 Cir., 141 F.2d 641, reversed on another point 324 U.S. 1, 65 S.Ct. 469, 89 L.Ed. 653; Hogan v. Commissioner, 5 Cir., 141 F.2d 92, cert. denied 323 U.S. 710, 65 S.Ct. 36, 89 L.Ed. 571; Commissioner of Internal Revenue v. I. A. O’Shaughnessy, Inc., 10 Cir., 124 F.2d 33. Cf. McLean v. Commissioner, 5 Cir., 120 F.2d 942, cert. denied 314 U.S. 670, 62 S.Ct. 138, 86 L.Ed. 536; Cullen v. Commissioner, 5 Cir., 118 F.2d 651.
311 F.2d — 26
The depletion and income allocation cases are not the final word in determining the appropriate tax treatment of transfers of mineral interests. Barker v. Commissioner, 2 Cir., 250 F.2d 195; Robert M. Dann, 30 T.C. 499. The extent of the holding in Burnet v. Harmel, supra, is that bonuses, or royalties, from oil and gas leases are not income from the sale of capital assets within the meaning of the capital gains provisions of the taxing statute. However, as the Supreme Court said in Helvering v. Bankline Oil Co., supra, 303 U.S. at 367, 58 S.Ct. at 618:
“(T)he phrase ‘economic interest’ is not to be taken as embracing a mere economic advantage derived from production through a contractual relation to the owner, by one who has no capital investment in the mineral deposit. See Thomas v. Perkins, 301 U.S. 655, 661 [57 S.Ct. 911, 81 L.Ed. 1324].”
See Commissioner of Internal Revenue v. Remer, 8 Cir., 260 F.2d 337. In Helvering v. Elbe Oil Land Dev. Co., supra, 303 U.S. at 375, 58 S.Ct. at 622, in considering a factual situation much like the one here, the Supreme Court said:
“We agree with the conclusion of the Board of Tax Appeals that the contract between the respondent and the Honolulu Company provided for an absolute sale of all the properties in question, including all the oil and gas in place, and that respondent did not retain any interest or investment thei*ein. The aggregate sum of $2,000,000 was paid as an agreed purchase price to which was to be added the one-third of the net profits payable on the conditions specified. We are unable to conclude that the provision for this additional payment qualified in any way the effect of the transaction as an absolute sale or was other than a personal covenant of the Honolulu Company. See Helvering v. O’Donnell [303 U.S.], ante, p. 370 [58 S.Ct. 619, 82 L.Ed. 903]. In this view, neither the cash payments nor the agreement for a share of subsequent profits constituted an advance royalty, or a ‘bonus’ in the nature of an advance royalty, within the decisions recognizing a right to the depletion allowance with respect to payments of that sort. Such payments are made to the recipient as a return upon his capital investment in the oil or gas in place. See Burnet v. Harmel, 287 U.S. 103, 111, 112 [53 S.Ct. 74, 77 L.Ed. 199]; Murphy Oil Co. v. Burnet, 287 U.S. 299, 302 [53 S.Ct. 161, 77 L.Ed. 318]. * * *”
It is apparent from the quoted language that the Supreme Court has not intended that the Palmer v. Bender, supra, theory of economic interest is to govern all transfers of mineral interests involving future payments to be made from production. See West v. Commissioner, 5 Cir., 150 F.2d 723, cert. denied 326 U.S. 795, 66 S.Ct. 488, 90 L.Ed. 484.
In another group of cases the federal courts, including the Tax Court, have relied upon a finding as to the intent of the parties, their dominant purpose in entering into the transaction, or the true substance of the transaction, in holding that sales of mineral interests were effected so that taxation of the proceeds was governed by the capital gains provisions. Linehan v. Commissioner, 1 Cir., 297 F.2d 276; Barker v. Commissioner, supra; Crowell Land and Mineral Corp. v. Commissioner, 5 Cir., 242 F.2d 864; Robert M. Dann, supra. Cf. Albritton v. Commissioner, supra. Several cases have reached results on facts similar to the instant case which lead to a conclusion that the transfer made here was an outright sale, and that the provision for sharing in subsequent production did not necessarily characterize the cash payment as an advance royalty or a bonus in the nature of an advance royalty. Maude W. Olinger, 27 T.C. 93. Cf. Griffith v. United States, D.Wyo., 180 F.Supp. 454. See Commissioner of Internal Revenue v. Remer, supra; Gowans v. Commissioner, 9 Cir., 246 F.2d 448. The Whites retained no investment or interest, economic or otherwise, in the minerals in place. The purchaser was free to remove the minerals, or not, as it saw fit. If there was production, the taxpayer was entitled to an additional payment. In this context the economic interest principle advanced by the United States is wholly a legal fiction. We hold that there was a sale of the minerals, and that the $175,000 payment as part of the consideration therefor, was properly treated as a capital gain for income tax purposes. We do not reach the question of whether the payments to be made from production amount to the reservation of an economic interest which would require a différent tax treatment of the income from that source. See United States v. Witte, 5 Cir., 306 F.2d 81.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_genresp2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
PRESTON et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND et al.
No. 7494.
Circuit Court of Appeals, Sixth Circuit.
June 9, 1938.
William L. Frierson, of Chattanooga, Tenn. (W. D. Moon, William L. Frierson, Cantrell, Meacham & Moon, and Williams & Frierson, all of Chattanooga, Tenn., on the brief), for appellants.
Vaughn Miller, of Chattanooga, Tenn., (Vaughn Miller, Miller, Miller & Martin, and Floyd' Estill, all of Chattanooga, Tenn., on the brief), for appellees.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
ALLEN, Circuit Judge.
Appeal from a decree against Charles E. Watson, a former county court clerk of Hamilton County, Tennessee, and the individual sureties on his bond. Two of the sureties obtained a severance from the other surety, and appealed. Watson has not appealed, and a motion to dismiss the appeal has been filed upon the ground that he was not joined in the appeal nor detached by summons and severance. Appellants assert that Watson has no interest in their controversy on appeal, and that the motion must be denied upon the authority of Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340, which held that when the interest of a defendant is separate from that of other defendants, he may appeal without them.
We think the Winters Case is clearly distinguishable from that presented here. There the non-appealing defendants had failed to answer and a judgment pro confesso had been taken against them, so that they were absolutely barred and precluded from questioning the correctness of the decree, unless manifest error appeared. But here Watson is not precluded from questioning the correctness of the decree, herein and the liability of the sureties is necessarily involved with and grows out of the liability of Watson, the principal on the bond.
Appellants in effect contend that the-question of their liability is a matter to be determined apart from Watson’s liability,, and that hence neither joinder nor severance of Watson is necessary in this appeal. But the decree holds Watson and his sureties jointly liable.
This court cannot undertake to explore the record to ascertain what issues-were relied on in the court below. It must accept the judgment as entered. Hartford. Accident & Indemnity Co. v. Bunn, 285 U. S. 169, 52 S.Ct. 354, 76 L.Ed. 685. Since the judgment is joint in form, and no reason appears upon its face why both Watson- and the sureties might not appeal, it follows either that Watson should have joined in. the appeal or that there should have been a summons and severance in order to detach Watson from his right of appeal. Humes v. Third National Bank, 5 Cir., 54 F. 917; H. E. Wolfe Construction Co. v. Fersner, 4 Cir., 58 F.2d 27; Holbrook, Cabot & Daly Contracting Co. v. Menard, 2 Cir., 145 F. 498. Cf. City of Detroit v. Guaranty Trust Co. of N. Y., 6 Cir., 168 F, 608; Oakland County, Mich., v. Hazlett, 6 Cir., 87 F.2d 795.
The motion is sustained; and the appeal is dismissed'.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
GOVERNMENT OF the VIRGIN ISLANDS v. Raphael PARROTT, Appellant.
No. 71-1934.
United States Court of Appeals, Third Circuit.
Argued Jan. 29, 1973.
Decided April 18, 1973.
Joseph L. Costello, Bryant & Costello, Christiansted, St. Croix, V. I., for appellant.
Gary P. Naftalis, Sp. Asst. U. S. Atty., S. D. New York, New York City, for appellee.
Before MARIS, VAN DUSEN and ROSENN, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
This is an appeal by the defendant from a judgment of the District Court of the Virgin Islands convicting him of robbing one Howard Hambler of a sum of money. The offense was committed in the evening when Hambler was walking with two companions on the Long Bay Road in the vicinity of the Paul M. Pearson Gardens in St. Thomas. The defendant did not demand a jury trial and the case was tried to the judge alone. The defendant was identified in court by Hambler and by one Samuel Davis who lived in Pearson Gardens, knew the defendant and who came to Hambler’s assistance at the time of the robbery. The defendant testified that during the evening in question he was playing basket ball in Pearson Gardens, was later playing cards there and at the time of the robbery was in a nearby restaurant. He produced a number of witnesses who testified that they were with, or saw, or spoke to him at various times on the evening in question. Concluding that the government witnesses were credible, that there were conflicts in the testimony of the defendant and his witnesses, and that in any event the defendant under his own evidence could have committed the robbery, the trial judge found the defendant guilty beyond a reasonable doubt of the offense charged and entered the judgment of conviction here appealed from.
On this appeal the defendant contends that the trial judge’s finding of guilty was not supported by the evidence. It is argued that the defendant’s evidence that he was elsewhere when the crime was committed raised a reasonable doubt which required a finding of not guilty. Our consideration of the evidence which was before the trial judge satisfies us, however, that it amply supports the finding of guilty. The “elsewhere” where the defendant claims to have been and where his witnesses said they saw him, was in fact in the immediate vicinity of the scene of the robbery, which he could have committed without absenting himself for any substantial period of time from the places where he claimed to have been. We find no merit in the contention of the defendant that the evidence did not support his conviction.
The defendant further contends, a contention asserted for the first time on this appeal, that he was denied the right to a jury trial because he was not accorded such a trial although he did not expressly waive it in the manner prescribed by Rule 23(a) of the Federal Rules of Criminal Procedure. Admittedly he did not demand such a trial, as is required by section 26, as amended, of the Revised Organic Act of the Virgin Islands. The question is thus squarely raised as to whether the procedure for determining whether or not the defendant desires to exercise his right to a jury trial in a criminal case in the District Court of the Virgin Islands is governed by Rule 23(a), F.R.Cr.P., or by section 26 of the Revised Organic Act.
It is clear that whatever may have been the situation in the Virgin Islands prior to 1968, section 11 of the Act of August 23, 1968, 82 Stat. 837, 841, by extending the Sixth Amendment to the Constitution of the United States to the territory conferred upon persons accused of crimes triable in the District Court of the Virgin Islands the right to trial by jury. It is equally clear that this right is a privilege which need not be invoked if the accused does not desire to do so. Patton v. United States, 1930, 281 U.S. 276, 50 S.Ct. 253, 74 L. Ed. 854; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268.
The question before us, however, is not the existence of the right to trial by jury but rather the procedure by which an accused may exercise his option whether or not to invoke the right. One form of procedure would be to require the accused desiring to enjoy the right to a trial by jury to demand it of the court and to assume in the absence of such a demand that he does not desire a jury trial. This is the procedure provided by section 26 of the Revised Organic Act. Another approach would be to require the accused who does not desire to exercise the right to a jury trial so to state to the court and to assume in the absence of such a statement that the accused desires such a trial. This, of course, is the procedure provided by Rule 23(a) of the Federal Rules of Criminal Procedure.
The question accordingly comes down to whether Rule 23(a), F.R.Cr.P., or section 26 of the Revised Organic Act controls the procedure in this regard in the District Court of the Virgin Islands. Rule 23(a) was one of the original rules of criminal procedure which were adopted by the Supreme Court on December 26, 1944, pursuant to the Act of June 29, 1940, 54 Stat. 688, which was subsequently codified in Title 18, U.S.C., as § 3771. By Rule 54(a)(1) the rules were made applicable, inter alia, to the District Court of the Virgin Islands.
The Revised Organic Act of the Virgin Islands was enacted by the Act of July 22, 1954, 68 Stat. 497. Section 26 of the Act in its original form carried forward the provisions of section 31 of the Organic Act of 1936, 43 Stat. 1814, in substantially their original form. Section 26 was amended, however, by section 8 of the Act of August 28, 1958, 72 Stat. 1095. In its amended form, the section was drastically rephrased so as to make perfectly clear that a defendant would receive a jury trial if he demanded it. That it was the intention of Congress to clarify this appears from the legislative history. The procedural rule embodied in Rule 23(a) of the Federal Rules of Criminal Procedure, having been adopted by the Supreme Court pursuant to Congressional authority, was subject to being repealed, amended or superseded in whole or in part by Congress as well as by the Court. Hawkins v. United States, 1958, 358 U.S. 74, 78, 79 S.Ct. 136, 3 L.Ed.2d 125. We think that this is exactly what has happened here and that by the Congressional amendment in 1958 of section 26 of the Revised Organic Act the procedural provisions of that section have superseded, for the District Court of the Virgin Islands, the earlier provisions of Rule 23(a), F.R.Cr.P. The provisions of section 26 as amended thereby became the Congressionally established procedure under which an accused in the Virgin Islands invokes his right to a trial by jury.
The procedure thus established by Congress for the Virgin Islands, namely, that the duty is laid upon the accused to ask for a jury trial if he desires one, appears to be quite appropriate for the territory in view of the fact that the use of a jury in the trial of criminal eases is of comparatively recent origin in the Islands. There is no ancient or deep-seated tradition that jury trial is the usual and preferred method of trial, as is true in the continental United States. On the contrary, the use of a jury in criminal cases appears to have been first introduced in the Virgin Islands by the Municipal Codes of 1920 and 1921, and then only for felony cases if demanded by the accused. Prior to that time and in the time of Danish rule the use of juries was unknown and criminal trials were by the presiding judge alone or with associate lay judges. This would appear to have been a not impermissible procedure. And we may take judicial notice of the fact that even after jury trials became permissible their use was the rare exception until quite recently and even today a great many criminal cases continue to be tried to the judge alone in accordance with the older tradition.
We recognize that the right to a jury trial under the Sixth Amendment is not effectively waived unless there is a knowing and intelligent waiver of such right by the defendant himself, as required in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). See also Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Adams v. United States ex rel. McCann, 317 U.S. 269, 280-281, 63 S.Ct. 236, 87 L.Ed. 268 (1942) ; Patton v. United States, 281 U.S. 276, 312-313, 50 S.Ct. 253, 74 L.Ed. 854 (1930). We are in no way persuaded that the traditional Virgin Islands practice now codified in section 26 is inconsistent with the constitutional requirement that a waiver be knowing and intelligent. In Johnson v. Zerbst, the Court said, inter alia: “The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background experience and conduct of the accused.” 304 U.S. at p. 464, 58 S. Ct. at p. 1023.
We believe that the procedure now assured by the Criminal Justice Act of 1964, 18 U.S.C.A. § 3006A, under which every defendant in the District Court of the Virgin Islands who cannot afford to retain counsel is provided with counsel at the expense of the United States, will in most cases result in knowledge by the accused that he has the right to request a jury trial and must make such request. Thus, with the rarest exceptions, every person accused of crime who appears in the district court has the benefit of the advice of counsel who, of course, knows of his client’s basic right to a jury trial and should clearly and positively inform him of it, so that it may be decided whether or not, as a matter of trial strategy, the right should be demanded.
On the record in the present case, defendant does not allege that he did not know of his right to a jury trial and that he was not in a position to make an informed choice. He was advised by a lawyer of his choice, the late Francisco Corneiro, one of the ablest members of the Virgin Islands bar, who was a former United States Attorney and Attorney General of the territory. Under these circumstances, he has no grounds to complain that he did not receive the jury trial for which he did not ask.'
The defendant’s remaining contentions are so wholly without merit as to require no discussion.
The judgment of the district court will be affirmed.
. “Rule 23. Trial by Jury or by the Court (a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.”
. “All criminal cases originating in the district court shall be tried by jury upon demand by the defendant or by the Government. If no jury is demanded the case shall be tried by the judge of the district court without a jury, except that the judge may, on his own motion, order a jury for the trial of any criminal action. The legislature may provide for trial in misdemeanor cases by a jury of six qualified persons.” 48 U.S.C.A. § 1616.
. For a discussion of this see Government of the Virgin Islands v. Bodle, 3 Cir. 1970, 427 F.2d 532, footnote 1.
. Senate Report No. 2267, 85th Congress, 2d session, on H.R. 12303, U.S.Code Cong. & Admin.News 1958, pp. 4334, 4336, which was enacted as the Act of August 28, 1958, states with respect to section 8:
“Section 8 clarifies section 26 of the Revised Organic Act of the Virgin Islands which concerns the right to trial by jury in criminal cases.”
. Code of Laws of the Municipality of St. Croix, approved June 15, 1920, effective August 1, 1920, Title V, Chap. 12, Sec. 1; Code of Laws of the Municipality of St. Thomas and St. John, approved March 17, 1921, effective July 1, 1921, Title V, Chap. 12, Sec. 1.
. See Soto v. United States, 3 Cir. 1921, 273 F. 628.
. Palko v. Connecticut, 1937, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288:
■ “ . . . The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not the very essence of a scheme of ordered liberty. To abolish them is not to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ . . New would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.”
. In the case of those rare defendants who choose to defend themselves without counsel, the district court should, of course, inform them of their right to demand a jury trial.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_const2
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105
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. Juan Angel HUGUEZ-IBARRA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dagobastro OLIVARRIA-PALACIOS, Defendant-Appellant.
Nos. 88-1354, 88-1384.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 12, 1989.
Decided Jan. 21, 1992.
Peter B. Keller, Keller & Postero, Tucson, Ariz., for defendant-appellant Juan Huguez-Ibarra.
Stephen G. Ralls, Sean Bruner, Ralls & Bruner, Tucson, Ariz., for defendant-appellant Dagobastro Olivarria-Palacios.
Phillip G. Espinosa, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.
Before POOLE, REINHARDT and BEEZER, Circuit Judges.
POOLE, Circuit Judge:
Appellants Juan Huguez-Ibarra and Da-gobastro Olivarria-Palacios appeal their convictions for conspiracy to possess with intent to distribute and possession with the intent to distribute 500 grams or more but less than five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(B)(ii)(II). They were tried as co-defendants and their appeals have been consolidated.
They appeal the district court’s denial of their motions to suppress. Both also claim that the district court erred when it denied their motions to exclude from evidence notebooks found in their residence. Hu-guez-Ibarra alone alleges the district court erred when it allowed a receipt for the purchase of an automobile, found in the residence, to be admitted into evidence. Furthermore, Huguez-Ibarra challenges the district court’s denial of his motion for a mistrial or continuance based on the late disclosure of evidence. Finally, Huguez-Ibarra argues that the district court erred when it denied his proposed jury instruction on a so-called “lesser included offense.”
We conclude that the government agents lacked probable cause for their warrantless entry into Appellants’ residence. The evidence which the government obtained as a result of that entry should therefore have been suppressed. Because of the prejudicial impact which the inadmissible evidence potentially had on the jury, we reverse the convictions and remand for a new trial.
We have also concluded that the search warrant for the residence was not supported by probable cause. Accordingly, we reverse and remand to the district court for further proceedings to consider whether the evidence seized pursuant to the search warrants is nevertheless admissible under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For the guidance of the district court in the event of retrial, we also discuss the other issues raised by Appellants in their appeals.
FACTS
In August 1987, United States Drug Enforcement Administration (DEA) agents received citizen complaints regarding a high level of vehicular traffic at 3701 East Dover Stravenue (“residence”), in Tucson, Arizona. In response to the citizen complaints, DEA Agents Teresa Gulotta and Alex Vazquez began drive-by surveillance of the residence several times a week in August 1987. Agents began extended surveillance in October 1987, while continuing to drive by periodically. Starting in December 1987 or January 1988, stationary surveillance of the residence was conducted one or two times a month. Agent Gulotta herself participated in stationary surveillance three or four times over the course of the investigation.
Over the course of the entire investigation, agents documented in excess of forty different vehicles at the residence. The agents ran checks on those vehicles, and found that some were registered to individuals reputed to be “affiliates” of narcotics organizations. Agents on occasion tried to follow vehicles departing the residence, and found them to drive in “an erratic and circuitous manner.” Several vehicles were stopped after leaving the residence, their occupants questioned, and the vehicles searched.
During the stationary surveillance, which lasted five or six hours, agents observed as many as six to eight vehicles pulling up to the residence, although the number of vehicles observed varied. Individuals would enter the residence, sometimes empty-handed and sometimes carrying boxes or bags. Visits would last anywhere from a few minutes to several hours, and then the visitors would return to their vehicles, sometimes carrying boxes and bags, and sometimes empty-handed. Agents also observed cars pulling into the carport, and on at least one occasion, a vehicle pulling through the carport and into the backyard. Agents noted that when the vehicle would reach the carport, the carport lights would be extinguished. Agents also on occasion observed “activity” surrounding the vehicles, but were unable to discern what was being done.
On April 29, 1988, at approximately 6:00 p.m., agents Vazquez and Gulotta, accompanied by other agents from the United States Customs Service and the United States Border Patrol, set up a stationary surveillance at the house. Two cars parked in front of the residence were joined by a Mercury Lynx (Mercury) and later a two-tone pick-up truck (pick-up). The occupants of the Mercury were seen entering the residence empty-handed and returning to their car with a white plastic shopping bag. They then drove away from the residence. The Border Patrol agents stopped the Mercury about two miles from the residence. Upon approaching the car, the agents detected the smell of marijuana. They brought a narcotics detection dog to the car, and the dog alerted to two suitcases visible in the car’s hatch area. The white plastic bag seen carried to the car was empty and a search of the car revealed no drugs. A subsequent search of the suitcases also failed to reveal any narcotics. The occupants of the Mercury were released.
When the dog alerted to the suitcases, the agents decided to seek a search warrant for the residence. Agent Gulotta ended her surveillance of the residence to obtain the warrant. After she left the surveillance area but before she could obtain the search warrant, Agent Vazquez with other agents stopped the pick-up. Agent Gulotta’s affidavit supporting the first search warrant contains no information regarding the events which took place after the stop of the Mercury. The stop of the pick-up occurred some time between 6:40 p.m. and 6:52 p.m. In response to questioning, the occupants of the pick-up denied having been at the residence. In addition to questioning the occupants, the agents brought a narcotics detection dog to the pick-up. The dog did not alert to the presence of drugs, and the agents released the pick-up.
At 7:20 p.m., Agent Vazquez made the decision to secure the residence until the search warrant could be obtained. He estimated that it would take two hours to obtain the search warrant and he was afraid that the occupants of the stopped vehicles would warn the residents of 3701 East Dover Stravenue. At approximately 7:36 p.m., Agent Vazquez and law enforcement agents drove up to the residence in one unmarked car and three marked cars. While approaching the residence, the agents saw the front door shut and the lights inside the residence go out. Agent Vazquez proceeded to the front door of the residence, knocked on the door, and announced his presence in Spanish and English. He heard rustling inside the residence. Receiving no response, he forced the front door open and entered the residence.
Agent Vazquez entered a bedroom and opened its bathroom door where he found a man, later identified as Huguez-Ibarra, holding an empty plastic bag, later found to contain cocaine residue, over a toilet. Agent Vazquez retrieved a semi-liquid slush from the toilet. The slush was found to be cocaine. A plastic bag and plastic sifter both containing cocaine residue, and money totaling approximately $10,000 were scattered around the toilet.
A second agent entered another bedroom and found Olivarria-Palacios in it. Both Huguez-Ibarra and Olivarria-Palacios were taken from the residence, and the agents waited outside for the search warrant. Until they entered the residence, the agents neither knew who lived in the residence nor had they actually found or seen any narcotics being carried into or out of the residence.
Upon obtaining the search warrant, the agents re-entered the residence. In the residence agents found a loaded Colt .38 revolver, phone bills, some rent receipts, and bottled water receipts in the name of Olivarria-Palacios. Inside the bedroom in which they found Olivarria-Palacios, the agents discovered two safes, one open and one closed. In the open safe they found a plastic bag containing cocaine residue, a notepad, a check payable to Olivarria-Pa-lacios, and an automobile receipt in the name of Juan Beltran Hughes. In the closed safe, opened at the DEA office pursuant to a second search warrant, agents found approximately three pounds (1,323.6 grams) of cocaine, about $9,000 in cash, and five more notebooks.
PROCEDURAL HISTORY
On May 18, 1988, Huguez-Ibarra and Olivarria-Palacios were charged in a two-count indictment with conspiracy to possess with intent to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(l)(B)(ii)(II). Huguez-Ibarra and Oli-varria-Palacios filed various pre-trial motions. Among them were motions requesting a Franks hearing, the suppression of evidence seized in the warrantless entry, and the suppression of evidence seized in the subsequent entry pursuant to the search warrant.
In response, the district court redacted portions of the affidavit used to obtain the search warrant. The court then denied the motion for a Franks hearing and the motions to suppress, finding that probable cause existed to support a search warrant and, after the testimony of Agent Vazquez, that exigent circumstances existed to justify the warrantless entry.
On July 13, 1988, the first day of trial, the government revealed the existence of a videotape recording of activities surrounding the residence taken by a neighbor of the defendants. The government previously had turned the tape over to the the court for in camera review. Huguez-Ibarra’s motion to produce the tape was denied. On July 14, 1989 he renewed his motion to produce the tape, which was also denied. At the end of that day the court reconsidered and allowed Huguez-Ibarra’s attorney to view the tape before he cross-examined Agent Gulotta. For security reasons it was not introduced at trial.
The district court denied Appellants’ motions to exclude the notebooks allegedly detailing drug transactions as well as Hu-guez-Ibarra’s motion to exclude the car payment receipt. The notebooks were admitted with a limiting instruction. In addition, the court denied Huguez-Ibarra’s motion for a continuance or mistrial based on the late disclosure of the videotape and the agents’ notes. Finally, the court denied Huguez-Ibarra’s proffered jury instruction on a so-called “lesser included offense.”
Both Appellants were found guilty on each count of the indictment. On July 22, 1988, Huguez-Ibarra filed a motion for a new trial which was denied on September 16, 1988. On September 16, 1988, both Appellants were sentenced to six years imprisonment on both counts to run concurrently with one another.
DISCUSSION
1. The Motions to Suppress
Appellants have argued for suppression of evidence seized in the warrant-less search of the residence, and for evidence seized pursuant to the search warrants. We review de novo the trial court’s determination of the validity of a warrant-less entry into a residence. United States v. Lindsey, 877 F.2d 777, 780 (9th Cir.1989). In assessing the validity of the searches conducted pursuant to the warrants, we review the magistrate’s decision that probable cause existed for clear error. The district court’s determination of probable cause in a case with redacted affidavits is reviewed de novo. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988).
A. The Warrantless Entry
The agents’ warrantless entry securing the residence was a seizure subject to the requirements of the Fourth Amendment. United States v. Howard, 828 F.2d 552, 554 (9th Cir.1987). The government has the burden of justifying the seizure under one of a few specifically established exceptions to the warrant requirement. To justify a warrantless entry, the government must demonstrate both probable cause and the existence of an exception to the warrant requirement, such as exigent circumstances. Lindsey, 877 F.2d at 780. Because we find that there was no probable cause, we need not consider whether exigent circumstances existed.
In reviewing a warrantless entry, it is up to this court “to make a practical, commonsense decision” whether based on the “totality of the circumstances” as known by the agents when they entered the residence there was a “fair probability that contraband or evidence of a crime” would be found inside. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Lindsey, 877 F.2d at 780.
The agents observed facts during the course of the investigation giving rise to a suspicion of illegal activity. However, the only evidence of narcotics ever uncovered during the vehicular stops — the narcotics detection dog alerting to the suitcases in the Mercury on April 29th — was discredited when a search of the suitcases failed to turn up any narcotics. In addition, as the agents themselves admitted, there was no connection between the suitcases and the residence — the occupants of the Mercury had entered the residence empty handed and had returned with only a bag, itself found to be empty.
The only other circumstance supporting an inference that the residence housed narcotics or evidence of narcotics trafficking was the ability of agents to trace automobiles frequenting the residence to “affiliates” of narcotics organizations or “facilitators” of narcotics trafficking. While such evidence is certainly relevant, it alone is not sufficient to transform otherwise legal (albeit suspicious) activity into circumstances supporting probable cause. This is especially true where, as here, the visitors to the residence had at best a tenuous and undefined relationship to narcotics trafficking. Such allegations show only that the residents of the house at 3701 East Dover Stravenue were acquaintances of acquaintances of individuals involved in the narcotics trade. Such twice-removed evidence, while not wholly irrelevant, cannot reasonably give rise to a “fair probability” that the residence was the locus of criminal activities. This is true even when combined with the unusual amount of vehicular traffic.
Since there was not probable cause supporting the warrantless entry of the residence, the evidence seized as a direct result of this illegal entry should have been suppressed. Segura v. United States, 468 U.S. 796, 812, 104 S.Ct. 3380, 3389, 82 L.Ed.2d 599 (1984).
B. Searches Pursuant to Warrants
In reviewing the magistrate’s decision that probable cause existed, we are limited to the information contained within the four corners of the affidavits supporting the application for the search warrant. United States v. Stanert, 762 F.2d 775, 778 (9th Cir.), amended, 769 F.2d 1410 (1985). The redacted affidavits in this case contained even less proof than that known to the agents who seized the residence, and thus were deficient for the same reasons as discussed above. We therefore find that the magistrate’s determination that sufficient probable cause existed to issue the warrant was clearly erroneous.
This, however, does not automatically require suppression. Under United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), evidence will not be suppressed if the government acted in good faith — i.e., if the agents’ reliance on the warrant was objectively reasonable. Because the reasonableness of the agent’s reliance on the facially valid search warrant was not addressed in the trial court, we remand for a hearing on this issue.
II. The Notebooks
Appellants assert that the court erred in admitting the notepads because the government did not sufficiently establish the factual predicate for their admission as co-conspirator statements. They argue that under United States v. Ordonez, 737 F.2d 793 (9th Cir.1984), the government was required to lay a foundation for admission of drug ledgers. Ordonez, however, held only that the hearsay rule prohibits the introduction of drug ledgers without a foundation when the ledgers are being admitted to prove the truth of the matters asserted in them. In this case the trial judge made clear in his limiting instructions to the jury that the ledgers were not being admitted to prove the truth of what was written in them. Instead, they were admitted to show that the type of activities charged in the indictment were being carried out in the residence. Thus, “the rule against hearsay was not implicated and the requirement of ‘a proper foundational showing for admitting the records to prove the truth of the matters asserted’ was not triggered.” United States v. Jaramillo-Suarez, 942 F.2d 1412, 1416 (9th Cir.1991).
Since it is not hearsay, such evidence may come in if there is a sufficient showing of relevance and authenticity and if its probative value outweighs undue prejudice. Id. at 1416-1417 (citing United States v. Wilson, 532 F.2d 641, 645 (8th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976)). The notebooks in this case were circumstantially authenticated because they were found in the Appellants’ home in safes with cocaine and documents bearing the Appellants’ names. They were further authenticated by the nature of their contents and the fact that they corroborated the testimony of government agents regarding the suspected drug-trafficking. We do not believe that the trial court abused its discretion in determining that the ledgers were sufficiently authenticated and relevant to come into evidence.
III.The Car Payment Receipt
Appellant Huguez-Ibarra argues that the district court erred in admitting into evidence a receipt for an automobile in the name of “Juan Hughes.” The receipt showed a cash payment of $4000.00 to Watson Chevrolet on March 18, 1988. It was found in the unlocked safe in the same room as the locked safe in which the cocaine was found. Appellant Huguez-Ibar-ra argues that the admission of this document violates the hearsay rule and the prejudice caused by it outweighs its probative value.
As was the case with the notebooks, the receipt falls outside of the hearsay doctrine because it was not offered for the purpose of proving the truth of its contents. See United States v. Campbell, 466 F.2d 529, 531 (9th Cir.), cert. denied, 409 U.S. 1062, 93 S.Ct. 571, 34 L.Ed.2d 516 (1972).
The fact that the name on the receipt was spelled differently than Huguez-Ibarra’s was fully probed. Defense counsel was permitted to attempt to establish that the receipt belonged to Juan Beltran Hughes and not the Appellant. In light of the foregoing, the district court did not abuse its discretion in allowing the receipt into evidence.
IV. The Videotape and Agent’s Notes
Huguez-Ibarra asserts that his conviction was based on an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and in light of this violation he should have been granted a mistrial or at the very least a continuance. It is well-settled that the suppression of evidence favorable to the accused upon request violates due process when the evidence is material to either guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196. Since, however, we reverse the Appellants’ conviction on other grounds, this argument is now moot. Appellants’ counsel have had access to all the information that was sought and, in the event of a retrial, will be fully able to employ that information in Appellants’ defense.
V. Huguez-Ibarra’s Requested Jury Instruction
Huguez-Ibarra asserts that the court erred in refusing to give the jury an instruction which would have allowed him to be convicted of possession of less than 500 grams of cocaine.
Huguez-Ibarra’s theory of the case at the beginning of the trial was to ask the jury to find him guilty only of possession of the drugs he was caught dumping in the toilet and not conspiracy or possession of the three pounds in the safe. The district court refused to instruct the jury on possession of the cocaine recovered from the toilet because the indictment did not charge Huguez-Ibarra with possession of that cocaine. Instead, both Appellants were charged with conspiracy and possession with intent to distribute the three pounds of cocaine found in the safe.
We see no grounds for granting the request for instructing the jury on a crime unconnected with the charges in the indictment. The prosecution enjoys broad discretion in choosing what charges to bring against criminal defendants. Since the government did not charge Huguez-Ibarra with possession of the approximately 74 grams of cocaine recovered from the toilet, the jury could not have rationally convicted him of possession of that cocaine, and consequently there was no error in the refusal to instruct the jury on the “lesser charge.” See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir.1986).
CONCLUSION
The judgment is REVERSED as to each count. The case is REMANDED to the district court for further proceedings consistent with this opinion.
. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
. One example is provided by the affidavit supporting the applications for search warrants, which observes that Clementina Rivera, one of the subscribers for utilities at the residence, was married to Jesus Arias "who was involved in a narcotics related shooting in 1984.” This fact, although more specific than many of the other allegations of involvement with narcotics trafficking, does little to support an inference that the residence was the site of illegal narcotics trade.
This would, of course, be a different case were there a specific showing that the individuals frequenting the residence had themselves been previously involved in narcotics trafficking. Even so, however, such evidence would not alone provide probable cause for a seizure of the residence.
. It is well established that mere association with known or suspected criminals does not give rise to probable cause. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979); United States v. Hillison, 733 F.2d 692, 697 (9th Cir.1984).
. The affidavit in support of the search warrant for the closed safe included information gained in the warrantless seizure of the residence. It goes without saying that this "fruit of the poisonous tree” is not to be considered in evaluating the existence of probable cause. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
.As we read the record, the district court denied Appellants’ motion for a Franks hearing on the ground that probable cause existed even without the allegedly false statements in the supporting affidavit. Since we reverse on the issue of probable cause, we direct the district court on remand to determine whether Appellants can make a "substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978).
. We note that a limiting instruction should have been given but was not, apparently due to the failure of defense counsel to request one. Prior to admitting the document the court asked defense counsel if he wanted a limiting instruction. Counsel moved to have the jury advised where the receipt was found but to withhold submitting the actual document to the jury. This motion was denied, and no limiting instruction was given. Huguez-Ibarra does not specifically raise the failure to give one on appeal.
. Huguez-Ibarra seems to have recognized this by arguing in his closing presentation that his theory of the case had changed — that now it was "all or nothing,” and that the jury could either convict him of possession of the three pounds or acquit him, but that it could not convict him for possession of the cocaine he was found dumping in the toilet.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MUTUAL TEL. CO. v. UNITED STATES.
No. 13284.
United States Court of Appeals Ninth Circuit.
April 27, 1953.
Rehearing Denied July 20, 1953.
Heaton L. Wrenn and Marshall M. Goodsill, Jr., Honolulu, Hawaii, for appellant, Mutual Tel. Co.
A. William Barlow, U. S. Atty. Honolulu, Hawaii, Ellis N. Slack, Acting Asst. Atty. Gen., Howard Locke, Robert N. Anderson and S. Dee Hanson, Sp. Assts. to Atty. Gen., for appellee.
Before ORR, Circuit Judge, and LING and BYRNE, District Judges.
ORR, Circuit Judge.
Appellant is an Hawaiian public utility corporation engaged in furnishing wire telephone service in the Hawaiian Islands. It is subject to the jurisdiction of the Public Utilities Commission of the Territory of Hawaii, hereinafter called Commission.
In 1941 appellant experienced an unusually heavy demand for new telephone service in Honolulu which became a burdensome load on its central office facilities and distribution plant. This difficulty was contributed to by existing restrictions on obtaining materials and supplies. In order to alleviate the situation a plan was worked out which, it was thought, would discourage the demand for new installations. In September, 1941, appellant petitioned the Commission for permission to increase its existing “installation” .and to establish a new “supersedure” charge. The requested increases were approved by the Commission and the increased collection authorized but definite limitations as to use and custody of the receipts were imposed. Pertinent provisions of Commission’s order are set out in- the margin.
On October 2, 1941, the increased installation and new supersedure charges went into effect and continued until May 1, 1942, when they were terminated by an order of the Commission. Appellant requested the Commission’s permission to recapture the amount of the increased rates as income. This request was denied because, as the Commission stated, this did not appear “to be the proper method by which this amount should be accounted for after giving consideration to the purposes for which these monies were obtained from subscribers.” The receipts from the increased charges had been placed by appellant in an account designated as “175.2.” The Commission decided that the accrued balance in this account should, until its further order, be considered as “Contribution to Telephone Plant” and remain in subaccount 175.2 and not be taken into the income account until the Commission authorized such action. This order was complied with by appellant and the amounts collected because of the increased rates were ascertainable at all times. Moneys collected from increased rates were intermingled with other moneys in the general treasury of appellant but appellant kept on hand at all times sufficient cash or marketable securities so that it could immediately comply with any order the Commission might make as to the disposition of the fund.
Appellant did not report amounts received from the increased charges in 1941 and 1942 as part of its gross income in its tax returns for those years. The Commissioner of Internal Revenue determined a deficiency of $36,728.39. This amount was paid by appellant. Claims for refund were made and disallowed and this action resulted.
The trial court held the receipts from the increased rates to be taxable income in 1941 and 1942. We disagree. We are pursuaded that the increased rates were not received by appellant “under a claim of right and without restriction as to its disposition." See North American Oil Consolidated v. Burnet, 1932, 286 U.S. 417, 424, 52 S.Ct. 613, 76 L.Ed. 1197. (Emphasis added.) The Commission possessed and exercised authority to direct retention of the lhoneys received from the increased rates. Certainly it cannot be said that the receipts came into the possession of appellant subject to its “unfettered command” and that it was free to enjoy the receipts at its option. See Corliss v. Bowers, 1930, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 604. The command exercised in this case emanated from the Commission which imposed upon the appellant the duty to hold in reserve an amount equal to the collections made at all times. The most that can be said is that appellant may have received the moneys under a claim of right but the remaining element necessary to constitute the collections in 1941-1942 taxable income, viz., “without restrictions,” is absent here. The Government argues that a correct application of the principle laid down in the long line of cases dealing with the claim of right doctrine compels an affirmance ofthe judgment in this case. We conclude that the proper interpretation of the Supreme Court’s decisions as applied to the facts of this case compel a contrary result. We think the Government has failed to correctly appraise the second requirement with which the cases deal. The controlled circumstances under which the moneys were received and the imposed restriction as. to disposition are the dominant factors here. The Commission’s order requires more than a mere bookkeeping detail. It in effect directs appellant to retain custody of the moneys or its equivalent until further disposition is directed. An order directing such disposition was entered by the Commission on February 24, 1949, and on March 1, 1949, appellant deposited, as directed, the moneys to the “Retirement System of Mutual Telephone Company” in Bank of Hawaii. Then, and not until -then, did the moneys become taxable to it.-
Appellant argued in its brief, but all but abandoned during oral argument, a contention that the increased “installation” and new “supersedure” charges did not become taxable income at any time.' In any event' we think the contention has no merit.
Reversed.
. “The company makes no showing that such an increase of revenue is required, and we believe it improper to allow the increase to go through in a manner that would permit the increase to be passed on to the common stockholders in the form of increased dividends.
tt * * *
“The increase over present charges would be credited to Account No. 175, Contributions to Telephone Plant, and in computing rates on an ‘investment basis’ would be a reduction from the net. investment in arriving at a rate base. In-
vostors would not require a return and subscribers would be spared paying a capital charge on same. On motion of the Commission or upon application of the Company, other disposition of the accrued balance might be made as conditions warranted.
u tk >}s >;c
“The Commission in approving the increase and establishment of said charges, does not intend that such approval is to be construed as a finding of reasonableness of such charges or practices and is of the opinion that said charges should
be but temporary, and that withdrawal of such approval should be made at such time as the Commission deemed appropriate.
ti * * *
“The amounts representing the increase in connection charges and charges for supersedure of service over and above those which are now being charged by petitioner in the same respective categories and the newly established charges for superseduro of service where no charge lias been previously made, shall be charged to Account No. 175, Contributions to Telephone Plant, the amounts so accruing to he segregated from other charges to said account.”
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
MURPHY v. CITY OF ASBURY PARK et al.
No. 8378.
Circuit Court of Appeals, Third Circuit.
Argued Oct. 22, 1943.
Decided Jan. 14, 1944.
Ward Kremer, of Asbury Park, N. J. (Joseph F. Mattice, of Asbury Park, N. J., on the brief), for appellant.
Theodore D. Parsons, of Red Bank, N. J. (Parsons, Labrecque & Borden, of Red Bank, N. J., on the brief), for appellee.
Before TONES, GOODRICH, and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is a personal injury case. The plaintiff was a passenger in an automobile, owned by John J. Bennett and operated by Peter A. Bennett, which collided with one of a series of structures erected on Ocean Avenue, Asbury Park, New Jersey, by that municipality. The accident happened about 6:00 P.M., January 20, 1940, on Ocean Avenue at its intersection with Sixth Avenue in that city. Ocean Avenue runs north and south. It is the most easterly thoroughfare of Asbury Park and is next to and parallels the ocean front. It is 54 feet, seven inches wide. It is a main highway, carrying much of the Asbury Park vehicular traffic and is crossed by pedestrians going to and from the beach. At the time of the accident, there was in existence, a set of standards at intervals along the center of Ocean Avenue for substantially its length, or at least for a number of blocks. The standards had bell-shaped concrete bases. The bottom diameter of such base was 4 feet, its height was 3L/z feet. From the top of the base, a vertical metal column extended about 10 feet further into the air. At the top of the column there was an electric light fixture. In addition, some of the poles had traffic lights attached to them. The particular standard identified with the collision, did not. It did, however, have an inlaid sign on its base reading “Sixth Avenue,” which was the east-west street opposite and deadending into Ocean Avenue. ' The particular base had painted on it the words “No center parking.”
The Bennett automobile had been proceeding north on Ocean Avenue and to avoid hitting a car, Peter Bennett turned out to his left and struck the standard. In the District Court, there was a judgment in favor of the plaintiff and against the driver, Peter Bennett, and the City of Asbury Park. This appeal is taken by the City of Asbury Park. The defendant, Peter Bennett, did not take any appeal.
It is evident that the standard was a part of Asbury Park’s lighting and traffic system on Ocean Avenue. The municipality itself installed and maintained that system, including the particular stanchion in question. The fundamental question in the case is whether it was authorized by law. If it was, then, as Judge Biggs, speaking for this Court, said in Delaware, Lackawanna & Western Railroad Company v. Chiara, 3 Cir., 95 F.2d 663, at page 664: “* * * members of the public, including the appellees, are required to take notice of its presence and situation, and the learned trial judge should have directed a verdict for the appellant as prayed for by it.”
It is not clear from the testimony just when the standards were erected. The only one of plaintiff’s witnesses who ventured to hazard a date, fixed the time as about 1927. Plaintiff’s attorney, in response to the Court’s questions, said that from the best proof they had, the standard had been erected approximately fifteen years prior to the trial date which was M ay 1942 and which woi:ld make the construction date approximately 1927. The date of construction is not mentioned in the trial court’s charge. However, in the opinion on the motion to set aside the verdict, the court, from language in one of the Asbury Park ordinances in evidence inferred that the standards were erected in 1921. In any event, 1921 is the earliest possible date.
In 1917, the New Jersey Legislature passed what is popularly called the “Home Rule Act” (P.L. 1917, Chapter 152, pages 319, 410, N.J.S.A. 40:42-1 et seq.). Paragraph 1, Article XXIV of that Act reads as follows: “1. The governing body of every municipality shall have power by ordinance to cause the streets and public places of such municipality to be lighted, to acquire all necessary lands and real estate for that purpose by purchase, gift or condemnation, and to erect thereon all necessary buildings and to equip the same with all necessary machinery and equipment, and to erect and maintain on or under said streets and public places all necessary poles, conduits, wires, fixtures and equipment, and to operate such lighting system at public expense.” N.J.S.A. 40:67-13.
That law as it reads was in effect in 1921. It will be noted that a municipality was directed to proceed by ordinance. In 1921, Asbury Park enacted its ordinance No. 335 which ordained “that the necessary drains and sewers for standard lamps necessary in connection with the improvements to Ocean Avenue be installed and completed, and that the paving of Ocean Avenue Boulevard be completed * * In the same ordinance, the cost “for the extension and completion of the sewers and drains and bases for lamp standards in Ocean Avenue and for the completion of the paving of said Ocean Avenue” was estimated at $52,000.
In 1927 Asbury Park passed Ordinance No. 454 which referred to the previous Ordinance No. 335, saying that the work called for by the latter had been completed and authorizing a bond issue to pay for same.
In Paragraph 5(a) of Ordinance No. 454 appeared the following sentence in parenthesis: “(The original average periods of usefulness of said improvements being twenty years, six years of the period of said usefulness having already expired and leaving remaining fourteen years.)” This referred to all of the improvements mentioned in the ordinance, including “the necessary drains and sewers for standard lamps necessary in connection with the improvements to Ocean Avenue.” It is from the above that the trial court assumed that the standard, with which we are concerned, was erected in 1921.
In 1923 a supplement to the 1917 Home Rule Act was enacted, P.L. 1923, Chapter 92, page 178, N.J.S.A. 40:67-16. That reads: “1. The governing body of every municipality shall have the power to establish safety zones, to erect, construct and maintain platforms, commonly called ‘safety isles’; to erect, construct, maintain and operate standards, commonly called ‘silent policemen,’ beacon lights, guide posts or other structures, which in its judgment may be necessary for the safety and convenience of persons and vehicles using the streets in said municipality.”
As is seen, the 1923 statute contained-no restrictions on municipalities as to the necessity of proceeding by ordinance. This statute was more concerned with traffic regulation and control than with lighting, which latter had been the primary purpose of the 1917 Act.
A photograph of the stanchion, one of the exhibits in the case, was before this court on the argument of this appeal. It gives a general idea of the Ocean Avenue light and traffic setup. From it, and the other facts in the case, it is clear that the particular stanchion is authorized under both the 1917 and the 1923 statutes. It is in reality an ornamental pole or fixture set in a wide base and serving the double purpose of street lighting and traffic assistance. The appellant argues at length that the structure was not specifically authorized by either law. It is true that the Legislature did not in either Act, see fit to detail exact dimensions of “light poles” or of “standards, commonly called silent policemen, beacon lights, guide posts or other structures, which in its (the municipality) judgment may be necessary for the safety and convenience of persons and vehicles using the streets in said municipality.” However, having in mind that both Acts were general laws, applying to every municipality in New Jersey and to an endless variety of local conditions, it is difficult to conceive how either law could be more specific and at the same time enable the municipalities of the State- to function for practical purposes under them, in the respects indicated. As was said in Denzer v. D., L. & W. R. Co., 103 N.J.L. 95, 134 A. 820, at page 821, by the New Jersey Court of Errors and Appeals: “* * * the inquiry must be whether the particular structure is authorized by law; and whether a structure in one place differs from one in another is beside the mark.”
Though it is extremely doubtful from the evidence, assuming that the standards were constructed in 1921, we think that the 1923 statute is applicable. That law, in addition to giving the municipalities the power to erect standards, etc., in the .same sequence specifically authorizes them to maintain and operate such standards, etc. The language fairly embraces municipal structures of the type designated as were in existence at the time the 1923 Act came into being and authorizes their maintenance and operation. The Legislature in its effort to assist municipalities with their then increasing traffic problems never intended to create chaos. It certainly did not intend forcing the municipalities of the entire 'State to make the stupid, costly gestures of tearing down existing traffic structures and immediately thereafter erecting similar ones guided entirely by their judgment as to what was necessary for the safety and convenience of persons and vehicles using the streets of the municipalities. That such retrospective law is valid seems well settled. Professor Dillon in his work on Municipal Corporations, 4th Edition 2, page 780 says: “By virtue of its authority over public ways, the legislature may authorize acts to be done in and upon them or legalize obstructions therein which would be otherwise deemed nuisances.”
In Calder v. Bull, 3 Dall. 386, at page 391, 1 L.Ed. 648, Justice Chase said:
“Every law that is to have an operation before the making thereof, as to commence at an antecedent time; * * * is retrospective. But such laws may be proper or necessary, as the case may be. * * *
“There are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement.”
The issue herejs controlled by New Jersey law and the statutes and decisions of that State have been carefully examined in this light. It is settled in New Jersey that there can be no recovery as the result of a collision with a legalized permanent obstruction on a highway. In Lorentz v. P. S. R. Co., 103 N.J.L. 104, 134 A. 818, 49 A.L.R. 989, which is a New Jersey Court -of Errors and Appeals case, an automobile collided with an elevated structure maintained by the defendant utility company on Central Avenue, Jersey City, New Jersey. It was shown that the structure was authorized by a New Jersey statute which contained a general authority to erect structures of that type. There was also an ordinance of Jersey City permitting its construction. The Court said at page 818 of 134 A.: “From what has been said it should be sufficiently obvious that the structure in question was a lawful one, sanctioned by legislative and municipal authority. It is elementary, of course, that any unlawful obstruction of the highway is prima facie a nuisance, and that the party responsible for it is liable in damages to the one injured thereby. This was the theory of the leading case of Durant v. Palmer, 29 N.J.L. 544. But it is equally well settled that the Legislature may legalize what would otherwise be a nuisance.”
The Chiara case, supra, also involved a personal injury claim arising out of a New Jersey accident and decided under New Jersey law. There, an automobile collided with the base of a support of defendant’s railroad bridge crossing Henderson Street, Jersey City. This Court said on page 664 of 95 F.2d: “The sole question presented for our consideration is whether or not the structure in question was a lawful one, sanctioned by legislative and municipal authority. Under the law of New Jersey, as construed by the Court of Errors and Appeals, any unlawful obstruction of a highway is prima facie a nuisance and the party responsible for it is liable in damages to one injured thereby. It is equally well settled that the Legislature may legalize what otherwise might be a nuisance.” Citing the Lorentz case and a number of other New Jersey decisions.
In this view of the case, since the standard was authorized by law, it follows that the question of alleged active negligence on the part of the municipality does not arise. The trial court should have directed a verdict for the appellant as prayed for by it.
The judgment of the District Court is reversed.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc1
|
28
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Roderick PLUMMER, Raymond W. Armorer, Neville F. Caesar, Gwendolyn Moore, and all others similarly situated, Plaintiffs-Appellants, v. CHEMICAL BANK, Defendant-Appellant. Miguel A. Oppenheimer, Louis Straker, Herman L. Clark, James Morrison, Theodore Ferguson and Herman I. Taitt, Objectors-Appellees.
Nos. 289, 298, Dockets 81-7528, 81-7546.
United States Court of Appeals, Second Circuit.
Argued Sept. 30, 1981.
Decided Jan. 5, 1982.
Judith P. Vladeck, New York City (Vladeck, Elias, Vladeck & Engelhard, Joseph J. Garcia, Richard S. Corenthal and Andrew Schulz, New York City, on the brief), for plaintiff s-appellants.
Ronald M. Green, New York City (Epstein Becker Borsody & Green and Susan Schenkel-Savitt, New York City, on the brief), for defendant-appellant.
Sidney B. Silverman, New York City (Silverman & Harnes, Joan T. Harnes and Martin H. Olesh, New York City, on the brief), for objectors-appellees Herman I. Taitt, Louis Straker, Herman L. Clark, James Morrison and Miguel A. Oppenheimer.
Jose A. Rivera, Brooklyn, N. Y., for objector-appellee Theodore L. Ferguson.
William L. Robinson and Beatrice Rosenberg, Washington, D. C., (Lawyers’ Committee for Civil Rights under Law and Donna R. Lenhoff, Women’s Legal Defense Fund, Washington, D. C., on the brief), amicus curiae in support of plaintiffs-appellants.
Before LUMBARD, MOORE and VAN GRAAFEILAND, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
Plaintiffs and the defendant both appeal from an order of the United States District Court for the Southern District of New York, Conner, J., 91 F.R.D. 434, denying approval of the proposed settlement of an employment discrimination class action. The appeal which we agreed to expedite is properly before us. Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). For reasons hereafter stated, we hold that the district judge did not abuse his discretion in rejecting the settlement as it was presented to him. However, we believe that appellants should be given an opportunity to amplify the record where the district judge found support for the settlement to be wanting and to correct any remediable defects that the district court may find to exist. This affirmance is without prejudice therefore to a renewed application by appellants, with such changes, if any, in substance and procedure as court and counsel deem proper and with opportunity provided for proponents and objectors to establish such evidentiary matters as the district court deems necessary for making an informed decision.
On December 24, 1980, plaintiffs commenced this Rule 23(b)(2) class action alleging racial discrimination by the defendant Bank. The class which plaintiffs purported to represent consisted of all the black officials, managers, and professionals then employed by the Bank in New York City or who subsequently might become employed by the Bank in New York City. The complaint alleges that the defendant “differentiates between black and white employees with respect to all terms and conditions of employment, providing black employees with less favorable terms and conditions of employment.” In addition to declaratory and injunctive relief against the alleged unlawful practices, the complaint demands that class members be promoted or assigned to the positions they would have occupied had there been no discrimination. It demands that the named plaintiffs be made whole for all lost earnings but seeks only salary adjustments for the remaining class members.
Judge Conner quickly discovered that the filing of the complaint signaled, not the start of a journey, but the end of the road. Plaintiffs’ attorneys, acting as spokesmen for self-declared representatives of an uncertified class, had been negotiating with the Bank’s attorneys for almost two years, and a compromise of their differences was imminent when the complaint was filed. On February 4, 1981, the Bank filed its answer denying all allegations of wrongdoing. On February 10, 1981, plaintiffs’ attorneys presented the district court with a proposed settlement decree.
For the purposes of this opinion, a brief summary of the fifty-nine page decree will suffice. The decree adopts the complaint’s description of the class, i.e., all blacks currently or subsequently employed in official, managerial, or professional capacities. It sets up three-year affirmative action goals which the Bank must make a good faith effort to meet, requires more intensive recruitment of blacks, validated tests for training programs, career counseling for class members and the appointment of an ombudsman to assist in resolving disputes.
The proposed decree makes no provision, however, for advancement in rank of any of the unnamed class members who, like the named plaintiffs, were allegedly discriminated against. It likewise makes no provision for back pay awards to any of the unnamed discriminatees. It provides instead for “Promotion” and “Scholarship” payments. During the three-year term of the decree, any unnamed class member who is promoted into or within any of certain identified job groups is to be paid a “Promotion Payment” if his years of service at the Bank exceed by two or more years the average total number of years of white employees who had received a similar promotion during the previous year. The amount of the Promotion Payment will vary from a minimum of $1,500 to a maximum of $4,500, depending upon the recipient’s length of service in excess of the white average. The Bank’s total liability for these payments is not to exceed $300,-000. Each unnamed class member who is promoted into or within the official, managerial, or professional job groups, is entitled to a Scholarship Payment not to exceed $1,000, until a fund of $100,000 established by the Bank for this purpose is exhausted.
In contrast to these provisional awards, the decree provides that the four named plaintiffs are to receive immediate payments as follows: Plummer ($8,500), Armorer ($10,000). Moore ($17,500), Caesar ($17,500). In addition, Plummer is to be promoted to Senior Trust Officer/Assistant Vice President, Armorer to Supervising Auditor/Assistant Secretary, Moore to Senior Auditor, and Caesar to Senior Tax Specialist.
The district judge ordered that a hearing on the proposed decree be held and directed that a “Notice of Proposed Settlement” be sent by certified mail to all class members. He also directed that the notice be published in a newspaper of general circulation and that copies be posted on Bank bulletin boards. Although suit on behalf of the class was brought under Rule 28(b)(2), the notice to class members permitted them to opt out by filing a written request with “a brief statement of the reasons therefor.” Two hearings were held, at neither of which testimony was taken. By the time of the second hearing, twenty-five persons had indicated their opposition to the settlement and another twenty-five had opted out.
On July 10, 1981, Judge Conner filed an opinion and order denying appellants’ motion for approval of the settlement. Influenced in part by the Manual for Complex Litigation’s admonishment against pre-certification settlement negotiations, Judge Conner felt that the procedure followed in the instant case required him to take special care to assure himself that the settlement was fair, reasonable, and adequate. He concluded that the record before him was inadequate to support a responsible finding that the settlement was fair, reasonable, and adequate or that the “grossly disparate benefits” awarded the named plaintiffs were justified.
Appellants urge that we either make a de novo examination of the record and reverse the decision below or remand for further proceedings. Because our review of the record satisfies us that Judge Conner’s misgivings were warranted at least in part, we adopt the latter alternative.
Although tentative designations of class for settlement purposes are not uncommon, they have been the subject of considerable controversy. See In re Beef Industry Antitrust Litigation, 607 F.2d 167, 173-78 (5th Circuit 1979). Section 1.46 of the Manual for Complex Litigation suggests that ordinarily, before any settlement negotiations occur, there should be a class action determination and that, if settlement has been negotiated before class action determination and the appointment of a class representative, the court must be doubly careful in evaluating the fairness of the settlement. Readers of this opinion, who do not have ready access to the Manual, will find the reasons for its Board of Editors’ recommendations set forth in the Appendix of In re Beef Industry Antitrust Litigation, supra, 607 F.2d at 183-84. The recommendations contained in the Manual were of sufficient merit to warrant the district judge’s consideration. See McDonald v. Chicago Milwaukee Corp., 565 F.2d 416, 420 (7th Cir. 1977); Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 33 (3d Cir. 1971).
Because of the limited control exercisable by class members, class settlements are susceptible to abuse. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir.), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1978). “The interest of lawyer and class may diverge, as may the interests of different members of the class, and certain interests may be wrongfully compromised, betrayed, or ‘sold out’ without drawing the attention of the court.” Id.; see In re Beef Industry Antitrust Litigation, supra, 607 F.2d at 174. This is more likely to occur in a situation such as we have here, where the plaintiffs have negotiated to the verge of settlement before suit is brought and have then sued under Rule 23(b)(2), which requires no pre-certification notice to class members.
In City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), upon which appellants heavily rely, the settlement agreement was reached after more than three years of litigation, in which discovery had been virtually completed, all preliminary motions had been disposed of, and a motion for class certification was pending. Id. at 453. See also, In re Beef Industry Antitrust Litigation, supra, 607 F.2d 167, where “settlement was achieved only after several years of pending litigation”, id. at 176, and Brucker v. Thyssen-Bornemisza Europe N. V., 424 F.Supp. 679, (S.D.N.Y.1976), aff’d sub nom., Brucker v. Indian Head, Inc., 559 F.2d 1202 (2d Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277, 54 L.Ed.2d 183 (1977), where “the settlement was not negotiated in the early stages of the dispute, but rather after the parties had engaged in considerable litigation.” 424 F.Supp. at 688. While the settlement negotiations in the instant case apparently proceeded on the basis of information voluntarily furnished by the Bank, some of this information was received by plaintiffs’ attorneys pursuant to a stipulation of confidentiality. In each of the foregoing cases, the court also was careful to note the absence of any conflict between the proposed class and its unofficial representative. See City of Detroit, 495 F.2d at 465; In re Beef, 607 F.2d at 179; Brucker, 424 F.Supp. at 688-89.
Although negotiations in the instant case were conducted by undesignated class representatives without formal pretrial discovery, this, standing alone, did not preclude judicial approval. However, the district judge was bound to withhold such approval until he had closely and carefully scrutinized the joint settlement proposal to make sure that it was fair, adequate and reasonable, and not influenced in any way by fraud or collusion. Greenfield v. Villager Industries, Inc., 483 F.2d 824, 833 (3d Cir. 1973). The district judge also had to satisfy himself that the named plaintiffs were adequate representatives of the entire class in this across-the-board type of settlement. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403-06, 97 S.Ct. 1891, 1896-98, 52 L.Ed.2d 453 (1977), and that plaintiffs had no interests which were antagonistic to those of other class members, Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968).
Indeed, if Judge Conner was not preliminarily satisfied that class members had been adequately represented in the settlement negotiations, he was empowered to explore that issue before submitting the proposed settlement to the class. See In re Traffic Executive Association-Eastern Railroads, 627 F.2d 631, 634 (2d Cir. 1980); Burwell v. Eastern Airlines, Inc., 68 F.R.D. 495, 499 (E.D.Va.1975). Although pre-certification notice is not required in Rule 23(b)(2) cases, Frost v. Weinberger, 515 F.2d 57, 65 (2d Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1435, 47 L.Ed.2d 364 (1976), a district court has the discretionary power under Rule 23(d) to require that class members be notified of an opportunity to “signify whether they consider the representation fair and adequate.” Id. See Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24, 44-45 (N.D.Cal.1977); Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co., 71 F.R.D. at 666, 671 (S.D.N.Y.1976).
Adequacy of representation and fairness of compromise are questions of fact for the district court. Johnson v. Georgia Highway Express Inc., 417 F.2d 1122, 1124 (5th Cir. 1969). Although we do not expect district judges to convert settlement hearings into trials on the merits, we do expect them to explore the facts sufficiently to make intelligent determinations concerning adequacy and fairness. In re Traffic Executive Association-Eastern Railroads, supra, 627 F.2d at 633. There must be some “evidentiary foundation” in support of the proposed settlement. Saylor v. Bastedo, 623 F.2d 230, 239 n.11 (2d Cir. 1980); see Mendoza v. United States, 623 F.2d 1338, 1348 (9th Cir. 1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981). Some Circuits have held that the district court must make findings of fact and conclusions whenever the propriety of a settlement is in dispute. Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977); Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, 834-36 (9th Cir. 1976); see Patterson v. Newspaper and Mail Deliverers’ Union, 384 F.Supp. 585, 588 (S.D.N.Y.1974), aff’d 514 F.2d 767 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976). If Title VII class settlements are to be treated henceforth as injunctions for purposes of appeal, see Carson v. American Brands, supra, 101 S.Ct. 993, it would seem that findings and conclusions should be made with respect to every controverted settlement in order to permit intelligent review. See United States v. Rohm & Haas Co., 500 F.2d 167, 177 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1352, 43 L.Ed.2d 439 (1975); Fed.R.Civ.P. 52(a). Moreover, those findings and conclusions should not be based simply on the arguments and recommendations of counsel. In re General Motors Corporation Engine Interchange Litigation, supra, 594 F.2d at 1125; Pettway v. American Cast Iron Pipe Co., supra, 576 F.2d at 1215-16; Saylor v. Lindsley, 456 F.2d 896, 900-01 (2d Cir. 1972).
The factors which the district court should consider in assessing proposed settlements have been discussed in detail in numerous opinions. See, e.g., In re General Motors Corporation Engine Interchange Litigation, supra, 594 F.2d at 1123-33; City of Detroit v. Grinnell Corp., supra, 495 F.2d at 463. Judge Conner correctly recognized these factors as appropriate for consideration in class actions alleging discrimination. See, e.g., Armstrong v. Board of School Directors, supra, 616 F.2d at 314-15; Boyd v. Bechtel Corp., 485 F.Supp. 610, 617 (N.D.Cal.1979); Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co., supra, 76 F.R.D. at 175. When a district court approves a settlement which is not based upon “well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors”, its decision will not survive appellate review. Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 434, 88 S.Ct. 1157, 1168, 20 L.Ed.2d 1 (1968); Newman v. Stein, 464 F.2d 689, 692 (2d Cir.), cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972); see Ashbach v. Kirtley, 289 F.2d 159, 163-66 (8th Cir. 1961); Upson v. Otis, 155 F.2d 606, 612-15 (2d Cir. 1946).
The record supports Judge Conner’s uncertainty concerning the fairness of the agreement and the adequacy of the class representation. Because there are only a limited number of supervisory positions in the Bank, all members of the proposed class, at least 500 of whom are current employees, could not be promoted. The possibility of an antagonism in interests as between plaintiffs and other class members seeking advancement could not be ignored. See Franks v. Kroger Co., 649 F.2d 1216, 1226 (6th Cir. 1981); Hill v. Western Electric Co., 596 F.2d 99, 101-02 (4th Cir.), cert. denied, 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979); Air Line Stewards and Stewardesses Ass’n v. American Airlines, Inc., 490 F.2d 636, 640-42 (7th Cir. 1973); Gray v. International Brotherhood of Electrical Workers, 73 F.R.D. 638, 642 (D.D.C. 1977).
Appellees’ objections to plaintiffs’ preferential treatment are not satisfactorily answered with the argument that plaintiffs were the ones who filed charges with the Equal Employment Opportunity Commission and thereafter became the named party plaintiffs. At the time the EEOC charges were filed, plaintiffs’ attorneys purported to be acting as representatives of the entire class. No showing has been made that the attorneys offered their services to all class members for the purpose of filing charges or that those members were advised of the preferential treatment which would be given those who filed. Indeed, the notice of settlement itself failed to inform class members that plaintiffs were being given preferred treatment. There is nothing in the record to show that plaintiffs were discriminated against in any greater or different manner than were other class members.
It may be, of course, that the named plaintiffs’ claims are more meritorious than those of other class members. There is no proof in the record that the Bank ever discriminated against blacks as a class, and the Bank’s willingness to pay damages to the named plaintiffs does not mean that it would agree to pay similar sums to other class members. It is quite possible that unnamed class members would get nothing if forced to litigate their claims. Bearing all these possibilities in mind, we believe, nonetheless, that the district court properly exercised its discretion in requiring additional evidentiary support for the more generous treatment accorded plaintiffs in the proposed decree. See, e.g., Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co., supra, 76 F.R.D. at 180-82.
In deciding whether to approve a proposed class settlement, the most significant factor for the district court is the strength of the claimants’ case balanced against the settlement offer. In re Traffic Executive Association-Eastern Railroads, supra, 627 F.2d at 633. In view of the fact that all class members who do not opt out of the proposed settlement are forever barred from any claim for race discrimination on or before the date of the decree, the district judge ought to be able to make a finding as to what those members are giving up. See, e.g., Krasner v. Dreyfus Corp., 500 F.Supp. 36, 45 (S.D.N.Y.1980). We have no doubt that the proposed consent decree will give class members more than they are receiving under the affirmative action plan presently in effect. The decree’s three-year affirmative action goal speeds up by several years the current goals. The Bank is committed to disbursing $400,000, and eligible class members will receive payments from this fund without the need to prove personal discrimination and damages. The appointment of an ombudsman is also a significant improvement over the current plan. However, the district court is required to weigh these advantages against the disadvantages, if any, that may result from the proposed decree. We agree with the district court that the facts were insufficiently developed to enable it intelligently to make such an appraisal.
In so holding, we do not mean to suggest that extensive pre-trial discovery is a prerequisite to approval or that obstructionist tactics by a minority of objecting class members should be permitted to turn a settlement hearing into a full blown trial on the merits. Having made this point, we see no need to direct the manner in which factual development should take place on remand.
The order appealed from is affirmed without prejudice and without costs, and the matter is remanded to the district court for further proceedings consistent with this opinion.
. The district court judge should not take it upon himself to modify the terms of the proposed settlement decree, nor should he participate in any bargaining for better terms. In re General Motors Corporation Engine Interchange Litigation, 594 F.2d 1106, 1125 n.24 (7th Cir.), cert. denied, 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979); Armstrong v. Board of School Directors, 471 F.Supp. 800, 804 (E.D. Wis.1979), aff'd, 616 F.2d 305 (7th Cir. 1980). However, a dissatisfied judge may, with circumspection, “edge” the parties in what he believes to be the right direction. Seigal v. Merrick, 590 F.2d 35, 39 (2d Cir. 1978).
. The Circuits differ as to whether opting-out is permissible in Rule 23(b)(2) actions. See, e.g., Laskey v. International Union, United Automotive, Aerospace and Agricultural Implement Workers, 638 F.2d 954, 956 (6th Cir. 1981); Penson v. Terminal Transport Co., 634 F.2d 989, 992-96 (5th Cir. 1981); Bauman v. United States District Court, 557 F.2d 650, 659-60 (9th Cir. 1977); Grigsby v. North Mississippi Medical Center, Inc., supra, 586 F.2d 457, 461 (5th Cir. 1978). Although that issue in its present posture has not yet been before this Court, the tenor of the opinions in this Circuit has been that opting-out is permissible only in Rule 23(b)(3) cases. See Robertson v. National Basketball Ass’n., 556 F.2d 682, 684-86 (2d Cir. 1977); Cullen v. New York State Civil Service Commission, 435 F.Supp. 546, 561 (E.D.N.Y. 1977), appeal dismissed, 566 F.2d 846 (2d Cir. 1977); Van Gemert v. Boeing Co., 259 F.Supp. 125, 130 (S.D.N.Y.1966). But see Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co., 71 F.R.D. 666, 671 (S.D.N.Y.1976). If proposed class members are to be permitted to opt out, we find nothing in Rule 23 which requires them to file written reasons for their exercise of choice. Any reasonable indication of a desire to opt out should suffice. In re Four Seasons Securities Laws Litigation, 493 F.2d 1288, 1291 (10th Cir. 1974); 7A Wright & Miller, Federal Practice and Procedure § 1787 (1972).
. Eight of those who explained why they opted out said that they had not been discriminated against. One who sought exclusion wondered why plaintiffs were being paid a total of $55,-000 when discrimination had neither been proved nor admitted, and asked “If four people by filing suit can obtain compensation ranging from $8,500 to $17,500 without proving discrimination, why aren’t all members of the class being similarly compensated?” Another expressed a belief that many of the provisions of the decree “are already in place at Chemical Bank.”
. Nothing continued in Judge Conner’s opinion or in this Court’s opinion should be construed to impugn in any way the character or competence of counsel for either the plaintiffs or the defendant. Simply put, a court may not delegate to counsel the performance of its duty to protect the interests of absent class members.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_treat
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F
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
In re William B. SHAMBLIN; Grace G. Shamblin, Debtors. PHOENIX BOND & INDEMNITY COMPANY; Stanford D. Marks; Debois Investment Group, Inc., Appellants, v. William B. SHAMBLIN; Grace Shamblin, Appellees.
No. 88-5840.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 6, 1989.
Decided June 30, 1989.
As Amended on Denial of Rehearing and Rehearing En Banc Nov. 22, 1989.
Russell H. Rapoport, Encino, Cal., for appellants.
Gerard C. Heldrich, Jr., Chicago, Ill., for appellees.
Before WRIGHT and FARRIS, Circuit Judges, and SMITH, District Judge.
The Honorable Fern M. Smith, United States District Judge for the Northern District of Cali; fornia, sitting by designation.
EUGENE A. WRIGHT, Circuit Judge.
Phoenix Bond & Indemnity Company, Stanford D. Marks, and DeBois Investment Group, Inc., appeal the decision of the Bankruptcy Appellate Panel. The panel reversed the bankruptcy court’s refusal to set aside the tax sale of Grace Shamblin’s real property. The panel also granted the tax sale purchaser a lien on the property to the extent of present equivalent value given. We reverse the panel’s grant of a lien to the tax sale purchaser. We affirm the panel’s decision in all other respects.
FACTS
Grace and William Shamblin filed a voluntary Chapter 11 bankruptcy petition in California on February 2, 1982. When the Shamblins filed for bankruptcy, Grace Shamblin owned an apartment building in Cook County, Illinois, on which she owed back taxes. The Shamblins failed to notify the Cook County Recorder’s Office of their bankruptcy, although they later amended their bankruptcy schedule to include the Cook County Assessor as a creditor.
Stanford D. Marks is principal shareholder and principal operating officer of Phoenix Bond & Indemnity. Marks is also the managing officer and a director of DeBois Investment Group, Inc. The two firms share office space.
On February 22, 1982, the Circuit Court of Cook County entered judgment against Grace Shamblin’s apartment building for back taxes. The Cook County Treasurer conducted a tax sale on May 19, 1982. Phoenix Bond & Indemnity paid $24,430.85 in back taxes, interest, and costs and received a Certificate of Purchase. Neither the Cook County officials nor Phoenix knew of the Shamblins’ bankruptcy at that time.
A Phoenix employee received notice of the Shamblins’ bankruptcy no later than May 22, 1984. Illinois law provides a two year redemption period for property sold at tax sales. This period expired on May 21, 1984. On May 22, 1984, Phoenix assigned its Certificate of Purchase to Debois. After discovering the pending bankruptcy, the Cook County state’s attorney demanded that DeBois return the Certificate of Purchase. DeBois refused. On May 30, 1984, Phoenix, through Stanford Marks, filed an application for an order directing the county clerk to issue a tax deed. Although it is unclear exactly when Marks personally received notice of the bankruptcy, he knew unequivocally of the Shamb-lins’ bankruptcy by June 25, 1984, when he received the Shamblins’ complaint in their bankruptcy court action to set aside the tax sale. Nevertheless, on July 3, 1984, when Marks argued on behalf of the Phoenix/De-bois tax deed in Cook County Circuit Court, he informed the court of the Shamblins’ possible bankruptcy, but said he was speaking from “second-hand information.” The tax deed was issued to DeBois on July 6, 1984.
The Shamblins filed this action in bankruptcy court on June 13, 1984 requesting that the court set aside the tax sale. Phoenix and Marks filed a joint answer on July 18, 1984. The bankruptcy court refused to set the sale aside, holding that the Shamb-lins’ action was untimely under 11 U.S.C. § 549(d)(1). The court held also that even though the sale violated the automatic stay of 11 U.S.C. § 362, the sale was voidable only during the two year redemption period for tax sales under Illinois law. The bankruptcy appellate panel reversed, holding that both the tax sale and the tax deed violated the automatic stay and were therefore void. Finding that Phoenix was a good faith purchaser for value, however, the panel granted Debois, Phoenix’s successor in interest, an 11 U.S.C. § 549(c) lien against the property.
I. Mootness
Phoenix, Marks, and DeBois argue that the Shamblins’ failure to obtain a stay pending appeal from the bankruptcy court order makes the appeal moot. “Bankruptcy’s mootness rule applies when an appellant has failed to obtain a stay from an order that permits a sale of a debtor’s assets.” In re Onouli-Kona Land Co., 846 F.2d 1170, 1171 (9th Cir.1988). However, the rule operates only when a purchaser bought an asset in good faith. Id. at 1173. Lack of good faith includes fraudulent behavior or an attempt to take unfair advantage. See id.; In re Suchy, 786 F.2d 900, 902 (9th Cir.1985).
The tax deed was not obtained in good faith. Phoenix, Marks, and DeBois all had notice of the bankruptcy before the tax deed proceeding. They refused to return the Certificate of Purchase to Cook County authorities, they did not attempt to resolve the possible violation of the bankruptcy stay until after the deed was issued, and they made misleading statements to the court to obtain the order to issue the deed. The mootness rule does not apply.
II. Section 362 Automatic Stay
A. The May Tax Sale
The BAP held correctly that the tax sale was void from the outset. 11 U.S.C. § 362 provides that a petition in bankruptcy operates as a stay on any act to create, perfect, or enforce any lien against property of the bankruptcy estate. Judicial proceedings in violation of this automatic stay are void. In re Stringer, 847 F.2d 549, 551 (9th Cir.1988). In Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940), several mortgagees sought to confirm a sheriff’s sale of a farm owned by persons with petitions pending in bankruptcy court. The Court stated:
Because that State court had been deprived of all jurisdiction or power to proceed with the foreclosure, the confirmation of sale, the execution of the sheriff’s deed, the writ of assistance, and the ejection of appellants from their property— to the extent based upon the court’s actions — were all without authority of law.
308 U.S. at 443, 60 S.Ct. at 348. We decline to depart from this well established rule.
Numerous federal courts have followed Kalb and held tax and foreclosure sales in violation of the automatic stay to be void. See Richard v. City of Chicago, 80 B.R. 451, 453 (N.D.Ill.1987) (Illinois tax sale); In re Greer, 89 B.R. 757, 759 (Bankr.S.D.Ill.1988) (Illinois tax sale); In re Young, 14 B.R. 809, 811 (Bankr.N.D.Ill.1981) (Illinois tax sale); cf. In re Dennis, 14 B.R. 125, 126-27 (Bankr.E.D.Pa.1981) (sheriff’s sale under Pennsylvania law). We agree.
Appellants Phoenix, Marks and DeBois argue that the bankruptcy court retroactively annulled the stay, thereby validating the tax sale. The bankruptcy court judgment discusses annulling the automatic stay, but the court’s decision appears to rest on 11 U.S.C. § 549(d)(1) and the lapse of the two-year redemption period.
Even if the bankruptcy court had annulled the stay retroactively, the BAP correctly held that the court would have abused its discretion by doing so. We need not decide whether equitable principles may, in a proper case, justify retroactive annulment of the automatic stay. In this case, equity favors enforcement rather than annulment of the stay. Any equitable exception to the automatic stay should be narrow and applied only in extreme circumstances. See, e.g., Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984) (refusing, due to laches, to nullify a nearly three-year-old state court order declaring the validity of a land sale contract).
The appellants’ behavior regarding the tax deed proceeding borders on bad faith. The equities therefore favor the Shamblins. Appellants claim that the stay should be annulled retroactively for purposes of the tax sale alone, which they claim was accomplished in good faith. However, issuance of the tax deed was inextricably intertwined with the tax sale proceeding. We decline to view separately the behavior surrounding these two events.
B. The Tax Deed Proceeding
The BAP correctly held that the tax deed proceeding was void due to the invalid tax sale. We agree with the analysis of this issue in Richard v. City of Chicago, 80 B.R. at 452-53. The facts in Richard were similar to this case and, like this case, Richard involved Illinois law. In Richard the purchaser argued that the tax sale was a voidable act ratified when the debtor let the two-year statutory redemption period lapse. The court rejected this argument, holding the tax sale void. Id. at 453. It further held invalid the tax deed issued because of the void tax sale. Id. at 455; see also In re Young, 14 B.R. at 812 (enjoining purchaser at tax sale from seeking issuance of tax deed because sale, conducted in violation of automatic stay, was null and void); cf. In re Wheeler, 5 B.R. 600, 603-04 (Bankr.N.D.Ga.1980) (holding delivery of deed, acceptance of check, and recording of deed all void actions and without legal effect) (Georgia law).
The decisions cited by Phoenix, Marks, and DeBois and relied on by the bankruptcy court involve facts different from this case. All involve situations where the bankruptcy petition was filed during the statutory redemption period. See, e.g., In re Tynan, 773 F.2d 177, 179 (7th Cir.1985) (Wright, J.); In re Martinson, 731 F.2d 543, 544 (8th Cir.1984); Johnson v. First Nat’l Bank, 719 F.2d 270, 272 (8th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); In re Tabor Enters., Inc., 65 B.R. 42, 44 (Bankr.N.D. Ohio 1986) (under Illinois law). The Shamblins filed their petition well before the tax sale occurred.
The equities surrounding the tax deed proceeding also weigh against the appellants. They could have sought relief from the automatic stay before committing acts that violated it. See Richard, 80 B.R. at 453 n. 2, 455. Instead, they refused to return the Certificate of Purchase, continued with the tax deed proceeding, and misled the court regarding the bankruptcy.
III. Section 5^9
Appellants claim that, under 11 U.S.C. § 549, the tax sale should be allowed to stand despite violation of the automatic stay. 11 U.S.C. § 549(a) states a general rule permitting the trustee in bankruptcy (or debtor-in-possession) to avoid certain transactions. It provides: Postpetition transactions.
(a) Except as provided in subsection (b) and (c) of this section, the trustee may avoid a transfer of property of the estate:
(1) that occurs after the commencement of the case; and ...
(2) ... that is not authorized under this title or by the court.
(emphasis added). The remaining subsections provide exceptions to the general rule that unauthorized transfers of property may be avoided. Appellants claim the tax sale falls within the exceptions in § 549(c) and (d). Subsection (c) provides an exception for certain good faith purchasers. When the good faith purchaser has paid less than present fair equivalent value for the property, subsection (c) grants the purchaser a lien on the property to the extent of present equivalent value given. Subsection (d) precludes the commencement of § 549 actions beyond the earlier of two years after the date of the transfer sought to be avoided and the time the case is closed or dismissed.
Section 549 does not apply. The tax sale as conducted under Illinois law was not a “transfer of property of the estate” under § 549. See Richard, 80 B.R. at 454-55 (tax sale does not transfer property, but a claim against the property); In re Young, 14 B.R. at 812 (tax sale transfers only a chose in action) (both cases eonstru-ing Illinois law). Because an Illinois tax sale gives the purchaser only a lien on the property, see Cook County Collector v. ABA Gen. Contractors & Businesses, Inc., 135 Ill.App.3d 901, 90 Ill.Dec. 542, 547, 482 N.E.2d 361, 366 (1985), the purchaser does not obtain a transfer of property of the estate, but obtains only a claim against it. Because the tax sale was not a “transfer of property of the estate” under subsection (a), none of the provisions of § 549 apply. The exceptions to § 549, including the provision granting a lien to certain good faith purchasers, cannot, therefore, apply. CONCLUSION
The tax sale and subsequent tax deed violated the automatic stay and are void. Section 549 does not apply to the tax sale because it is not a “transfer of property of the estate” under subsection (a). Because we conclude that § 549 does not apply, we REVERSE the BAP’s determination that DeBois has a lien on the subject property under § 549(c). We AFFIRM the panel’s decision in all other respects.
. The mootness rule also does not apply to the May tax sale because of a two-year redemption period under Illinois law. See In re Onouli-Kona Land Co., 846 F.2d at 1173 ("To the extent that a sale is subject to rights of redemption, the sale is not truly final.").
. The case arose under the predecessor statute to 11 U.S.C. § 362(a).
. Whether the bankruptcy court may annul the automatic stay retroactively is an open question in this circuit. Compare In re Mellor, 734 F.2d 1396, 1402 (9th Cir.1984) ("[W]e do not reach the serious question which is presented where a bankruptcy court purports to annul an automatic stay in order to attempt retroactively to validate a void state court judgment.") with Alger-an, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1425 (9th Cir.1985) ("Algeran's position that an automatic stay cannot be lifted so as to validate a sale made while the stay was enforced, is without merit.”).
. Mrs. Shamblin, a debtor-in-possession, is regarded as a trustee for § 549(a) purposes. See In re Dant & Russell, Inc., 853 F.2d 700, 703 n. 2 (9th Cir.1988).
. The Shamblins argue that § 549 should not apply because the tax sale and tax deed issuance are void for violating the automatic stay. Because we decide that § 549 does not apply for other reasons, we need not resolve that difficult question. Cf. In re Brooks, 871 F.2d 89, 90 n. 1 (9th Cir.1989). We also do not address whether a party may use § 549 as a defense where the trustee or debtor-in-possession has not raised that section as a basis for avoiding a post-petition transaction.
. The Code in effect at the time of this case defined "transfer” as:
every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest, (emphasis supplied)
.This court has consistently treated the creation of liens on the debtor’s property as a transfer. See, e.g., In re Wind Power Systems, Inc., 841 F.2d 288, 291-92 (9th Cir.1988); Bass v. Stodd, 357 F.2d 458, 464-65 (9th Cir.1966). These cases, however, define "transfer” in the context of pre -petition, as opposed to post -petition, transactions. The Shamblins and their creditors were fully protected against the post-petition creation of a lien under § 362(a)(4). “Transfer" under § 549, therefore, need not include the lien created by the Illinois tax sale.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BILLMAN v. KROGER CO.
No. 10156.
United States Court of Appeals Seventh Circuit.
Nov. 10, 1950.
James J. Stewart, James L. Murray and II. William Irwin, and Murray, Man-non, Fairchild & Stewart, all of Indianapolis, Inch, for appellant.
Harry L. Gause, Erie A. Kightlinger, and Armstrong & Gause, all of Indianapolis, Ind., for appellee.
Before KERNER, FINNEGAN, and BINDLEY, Circuit Judges.
KERNER, Circuit Judge.
This appeal is from a judgment for defendant entered on a verdict of a jury in a suit to recover for personal injuries suffered in a collision between an automobile and a parked truck.
Plaintiff bases his asserted right to reversal of the judgment and a new trial on the prejudicial conduct on the part of the trial judge who, he asserts, exhibited hostility to him and partiality to the defendant throughout the entire proceedings in the following respects: Conducting hostile cross-examination of him and his witnesses; asking defense witnesses leading and suggestive questions; volunteering statements in evidence on behalf of defendant, some of which were inaccurate and irrelevant; making prejudicial remarks to his counsel in the presence of the jury; commenting, arguing and expressing opinions on controversial questions of fact; coercing or influencing the jury by commenting upon their numerical division in connection with their deliberations; and coercing or influencing the jury by hastening their consideration by evidencing surprise and impatience at their failure to promptly arrive at a verdi-ct and by threatening to lock them up.
A study of the record discloses that many of plaintiff’s objections to the conduct of the trial are well grounded and that the practical effect of the court’s conduct was to direct a verdict in favor of defendant. For that reason we have examined the record with a view to ascertaining whether the court should have granted defendant’s motion for a directed verdict filed at the close of plaintiff’s evidence.
It is clear that substantial questions of fact were raised relating to defendant’s negligence. There was conflict in the evidence as to whether the driver of the truck who parked it on the highway while he went for help when a rear tire blew out could have safely driven it a short distance farther to a place where there was evidence that he could have pulled it off the highway and onto a firm shoulder, whether he switched the various truck lights on before he left it, and as to the placing of the flares. However, from our study of the record we are convinced that the testimony of plaintiff himself disclosed that his own negligence was the proximate cause of the collision which caused his injuries. That being the case, the matter of defendant’s negligence, which is in dispute, becomes immaterial.
Plaintiff testified that the accident occurred on a highway about two miles south of Shelbyville, Indiana, at 5 :30 o’clock on the evening of January 12, 1948. It was dark and there was a slight fog, hut visibility was good. Plaintiff had his lights on and thought he could see about 350 feet ahead with them. As he rounded a curve about four-tenths of a mile from the scene of the accident he saw three lighted flares which he stated were directly in line in the middle of the highway. He knew the meaning of a flare in the highway. He testified that to him it meant “to have my car under control because there was something dangerous ahead,” “I knew there was something wrong.” He then reduced his speed from a little less than 50 miles an hour, and was driving about 30 or 35 miles an hour when he came up to the first flare. Although the road was straight for the half-mile or so from the ■ point where he first saw the flares up to the parked trailer and there was nothing to obstruct his view for that distance, it was not until he was almost up to the first flare that he saw that there was a parked trailer-truck on the highway ahead of him. He put on his brakes immediately but was unable to stop in time to avoid running into it. He thought the first flare was 'from 40 to 60 feet back of the truck. He stated that there were no visible lights on the backend of the trailer and that it blended into the highway. He turned to the right in order to avoid running over the flares and struck the right rear of the trailer with the left front of his car, thus causing the injuries to himself for which the action was brought.
The two significant facts which emerge from this testimony are: (1) Plaintiff saw lighted flares ahead for a distance of at least four-tenths of a mile, and knew there was something wrong ahead; (2) he continued to drive his car at a speed of at least 30 and more likely 35 miles an hour until he reached the point where he could identify the obstruction against which the flares were intended to warn him.
Subsections (a) and (d) of the Indiana statute relating to speed regulations, § 47-2004, Burns’ Indiana Statutes Annotated 1933, 1940 Replacement, provide:
“No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so restricted as may be necessary to avoid colliding with any * * * other conveyance on * * * the highway in compliance with legal requirements and with the duty of all persons to use due care. * * *
“The driver of every vehicle shall, consistent with the requirements in subsection (a), drive at an appropriate reduced speed when * * * special hazards exist with respect to * * * other traffic or by reason of weather or highway conditions.”
In Opple v. Ray, 208 Ind. 450, 459, 195 N.E. 81, 84, the court criticized the “hard-and-fast rule” theretofore stated in a number of decisions, “that one who operates a motorcar at night must equip his car with such lights, and proceed at such speed, and observe the way with such care, that he will see any dangerous obstruction in the highway, and that he must stop before collision and injury to himself under penalty of being chargeable with negligence contributory to his own injury,” as basically unsound. In its place it stated 208 Ind. at p. 461, 195 N.E. at page 85 a rule which furnishes an execellent guide as to the measure of care required to avoid a charge of negligence, that “one who drives at night at a speed which will permit him to observe ordinary signals of danger and obstruction, which would ordinarily and naturally be seen by a reasonably prudent person in time to stop without injury, cannot rationally be charged with negligence contributing to a collision because he failed to see and avoid a collision with an object which a reasonably prudent person would not anticipate or expect to find in his path. And an automobile parked in the highway without lights must be considered such an object.” And in Cushman Motor Delivery Co. v. McCabe, 219 Ind. 156, 173, 36 N.E.2d 769, 775, per Judge Swaim, the court stated, “A red light is the ordinary signal of danger to the motorist — a signal which all recognize and understand. A burning flare has also come to mean that there is some obstruction ahead.”
Applying Indiana statute and case law to the facts disclosed by plaintiff’s own testimony, we are convinced that he had ample warning from the flares that there was some special hazard ahead, some object which would not ordinarily be there, and that, being thus put on notice of such hazard, it became his duty to proceed at such a reduced speed as would enable him to stop if necessary when he reached the first flare and ascertain what the danger was and whether or not he could proceed with safety.
Plaintiff’s own testimony spelled out the defense of contributory negligence pleaded by defendant, and barred his right to recover for defendant’s negligence, if any. In this situation a verdict for defendant should have been directed, hence it is unnecessary for us to discuss whether the court’s conduct of the trial was unfair and prejudicial and constituted reversible error. Cf. Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321; United States v. Lee, 8 Cir., 107 F.2d 522, 528; American Motorist Ins. Co. v. Napoli, 5 Cir., 166 F.2d 24, 27; Martucci v. Brooklyn Children’s Society, 2 Cir., 140 F.2d 732, 734.
The judgment of the District Court is affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Appellee, v. Alfreda BARNES, Defendant, Appellant.
No. 88-1161.
United States Court of Appeals, First Circuit.
Heard April 5, 1989.
Decided Nov. 30, 1989.
Ellen K. Wade, by Appointment of the Court, with whom Avery & Friedman, Boston, Mass., was on brief, for defendant, appellant.
Edwin J. Gale, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for the U.S.
Before CAMPBELL, Chief Judge, and BOWNES, Circuit Judge, and CAFFREY, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
CAFFREY, Senior District Judge.
The defendant Alfreda Barnes appeals her conviction in the District of Rhode Island for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count I) and for possession, as a convicted felon, of a firearm in violation of 18 U.S.C. § 922(g) (Count II). On appeal, Barnes challenges her conviction for Count I on three grounds. First, Barnes claims that there was insufficient evidence to support the jury’s finding that she constructively possessed the cocaine base found in her apartment. Second, Barnes argues that there was insufficient evidence to prove that the mixture of cocaine base weighed more than 50 grams as required by § 841(b)(l)(A)(iii). Third, Barnes contends that the term “cocaine base” as used in 21 U.S.C. § 841 (b)(1)(A)(iii) is unconstitutionally vague in violation of the fifth amendment. Finally, as to both Count I and Count II, Barnes challenges her convictions claiming that the district court erred in defining reasonable doubt in its jury instructions. After a thorough review of the trial record and the appellant’s arguments, we affirm the appellant’s convictions on both counts.
I.
The relevant facts for this appeal are those presented to the jury during the appellant’s three-day trial. The trial testimony centered on the seizure of 72.5 grams of “crack” cocaine and a semi-automatic rifle from an apartment at 212 Lenox Avenue in Providence, Rhode Island. According to the record, the jury heard the testimony of 12 witnesses and reviewed at least 14 exhibits. The trial evidence is summarized as follows.
At approximately 11:45 p.m. on June 29, 1987, seven officers of the Providence Police Department executed a search warrant for the second floor apartment at 212 Le-nox Avenue. Upon arriving at the address, Detective Sergeant Joseph Fusco found the appellant Alfreda Barnes in the driveway beside 212 Lenox Avenue. Fusco informed Barnes of the warrant and asked if he could enter the apartment, but Barnes refused to allow entry.
At this time, Fusco saw a young woman in the second floor window of the building. Fusco told the young woman he had a search warrant and asked to be let in, but he received no response. The police officers then forcibly entered both the front door to the building and the door to the second floor apartment.
The police found the second floor apartment empty. Upon entering, the police came to a living room which was partitioned into a double parlor area. Beyond the living room was the kitchen, and off the kitchen was a pantry area. There were to back, and one bedroom off the living room front. The police never searched the bedroom in front.
Detective Sergeant Thomas Oates and Fusco searched the larger rear bedroom. The room had a large mahogany water bed with storage drawers underneath. Beside the bed was a matching bureau, and, at the base of the bed, was a television with several shelves underneath. The room also had a hamper and a closet with female clothing in it.
The police seized several items from the larger rear bedroom. On the floor next to the bed, Fusco found a semi-automatic Sturm Ruger mini-14 rifle modified with a flash-suppressor and a loaded 20-round magazine. In the bureau, Fusco found another gun magazine filled with live ammunition and a box containing $588 in cash. In the hamper, Oates discovered a blue Baby Fresh tissue container with $5,948 in cash inside. With the money, there was also a slip of paper with the figure “$6,000” and other scribblings written on it. Oates also found certain paperwork on the shelves below the television. Among these papers were two food stamp cards: one had the name “A. Barnes” and the other had the name “G. Barnes.”
Under the television, Oates noticed a Mrs. Filbert’s margarine container wrapped with a rubber band. Inside, Oates found three rock-like objects: one the size of a baseball, the other two the size of golf balls. Oates seized these objects believing them to be “crack” cocaine.
After starting to search the larger rear bedroom. Fusco took the rifle into the kitchen where various items were being inventoried. At that time, Barnes was in custody and seated by the kitchen table. As Fusco entered the kitchen with the rifle, Barnes said: “That’s mine, you can’t take it, I bought it at D & B Guns.”
Detective Gail Zienowicz and Fusco searched the kitchen and pantry areas. Zienowicz found several hundred unused small plastic vials inside a clothes dryer in the kitchen. Zienowicz seized the vials believing them to be “crack vials” used for distributing “crack” cocaine. Fusco also found and seized two triple beam scales in the pantry area.
During the search, the police assembled three individuals in the kitchen: Barnes who was in the driveway, the young woman who Fusco recognized as the person in the window, and a small infant. Barnes was arrested and taken into custody by the police. The police did not identify the young woman or the infant.
At trial, Lulu Barnes, the appellant Alfreda Barnes’s mother who lived on the first floor and owned the building, testified as the sole defense witness. Lulu said that Alfreda had lived in the second floor apartment for nine years. Alfreda had paid rent of $870 a month for several years and was on welfare with “section 8” housing support. Lulu also said the phone service was subscribed in Alfreda’s name.
Lulu Barnes testified that Alfreda lived in the second-floor apartment with her .infant child, not named in the record, and her two older children Gina, 20, and Marvin, 18. Marvin was a student at the University of Rhode Island and did not stay at the apartment regularly. The infant and Gina were staying at the apartment at the time.
Lulu Barnes also testified that Gina, not Alfreda, slept in the larger rear bedroom where the rifle and cocaine base were found. Lulu said that Alfreda slept with the infant in the smaller front bedroom off the living room. This testimony, however, was not unequivocal. On cross-examination, Lulu admitted that she had first said Gina lived in the smaller front bedroom, and then quickly corrected herself.
Finally, concerning the substance seized, a Drug Enforcement Administration forensic chemist, Andrea Michaels, testified at trial that she analyzed the three chunks found in the apartment. First, she weighed the three chunks and determined their weight to be 72.5 grams. Next, she screened each chunk with a common chemical color test and found each to contain some amount of cocaine. Then, she ground the chunks into a uniform powder and performed infra-red spectrography and gas chromatography tests on a one gram sample. Michaels said her test results showed the powder to contain 97 percent pure cocaine base. In terms of her chemistry training, Michaels explained that cocaine base differs from cocaine hydrochloride in its molecular structure. Michaels said that cocaine base is commonly called “crack” cocaine which is generally smoked.
II.
The first issue presented by this appeal is whether there was sufficient evidence to support the jury finding that the appellant Barnes constructively possessed the cocaine base found in the larger rear bedroom. Barnes argues that the only direct testimony offered at trial showed that her daughter Gina lived in the larger rear bedroom, and thus Barnes could not have constructively possessed the drugs found in the rear bedroom. Further, Barnes contends that the drugs and drug paraphernalia seized in other areas of the apartment were not in plain view, and thus she had no knowledge or control over these items. In light of the full record and the applicable law, these arguments are not persuasive.
In reviewing this issue, the court must decide whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). See also United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989); United States v. Torres Lopez, 851 F.2d 520, 527 (1st Cir.1988), cert. denied, - U.S.-, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989). In considering this question, the court shall draw all reasonable inferences from direct and circumstantial evidence in favor of the government. United States v. Lochan, 674 F.2d 960, 965-66 (1st Cir.1982). Furthermore, given this circuit’s adherence to the “waiver rule” concerning mid-trial motions for acquittal, the court shall consider all the evidence presented at trial both from the government and the defendant. United States v. Notarantonio, 758 F.2d 777, 788 (1st Cir.1985). Nevertheless, the court is mindful that the burden remains on the government to prove every element of the offense beyond a reasonable doubt. Lochan, 674 F.2d at 965-66.
Pursuant to 21 U.S.C. § 841(a), the government was required to prove that Barnes knowingly possessed the cocaine base found in the apartment at 212 Lenox Avenue. The government need not prove actual possession; constructive possession is sufficient. See United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.), cert. denied, 485 U.S. 1024, 108 S.Ct. 1582, 99 L.Ed.2d 897 (1988); United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988); United States v. Carrasco, 830 F.2d 41, 45 (5th Cir.1987). To show constructive possession, the government must prove that Barnes had dominion and control over area where the contraband was found. See United States v. Morales, 868 F.2d 1562, 1573 (11th Cir.1989); Matra, 841 F.2d at 840. Constructive possession may be shown by direct or circumstantial evidence, but mere association or mere presence with one who possessed contraband is not enough. See United States v. Castillo, 844 F.2d 1379 (9th Cir.1988); Carrasco, 830 F.2d at 45. See also United States v. Mehtala, 578 F.2d 6, 9-10 (1st Cir.1978). Finally, knowledge of possession may similarly be inferred by demonstrating dominion and control over the area where contraband is found. Lochan, 674 F.2d at 966.
To begin our analysis, we note that the appellant misconstrues the law concerning constructive possession on two points. First, Barnes argues in her brief that she “did not have exclusive access to the apartment,” and further suggests that the government must show Barnes exclusively occupied the larger bedroom to satisfy its burden. While the government may prove its case in this manner, constructive possession may be proven in situations of joint occupancy and it need not be exclusive. See Calle-Cardenas, 837 F.2d at 32 (defendant found in apartment with two other men similarly clothed had dominion and control over apartment); United States v. Poole, 878 F.2d 1389, 1392 (11th Cir.1989) (defendant living in apartment with sister, three adolescent children, and a male friend had dominion and control over apartment). Second, the appellant suggests that the government must prove her dominion and control over the cocaine base itself. Again the government may prove its case in that way, but the government may also satisfy its burden of proof by showing dominion and control over the area where the contraband was found. See Morales, 868 F.2d at 1573 (defendant leasing apartment had dominion and control over drugs found there); Lochan, 674 F.2d at 966 (defendant driving vehicle had dominion and control over hashish found behind back seat).
Thus, the issue reduces itself to whether the appellant Barnes, either jointly or exclusively, had dominion and control over the area where the cocaine base was found. With multiple occupants in the apartment and Lulu Barnes’s testimony, the evidence as presented to the jury created a question of fact as to who had dominion and control over the larger rear bedroom. On appeal, however, the evidence presented at trial creates no question of law concerning whether the jury had a rational basis for its verdict.
The government presented substantial circumstantial evidence that Barnes had dominion and control over the larger rear bedroom. The police found a loaded rifle, which admittedly belonged to Barnes, on the floor in the larger rear bedroom and seized a loaded magazine for the gun from the bureau in the same room. The police also found Barnes’s food stamp identification card in the bedroom with her name on it. In addition, the bedroom closet contained women’s clothing.
Added to this circumstantial evidence, certain reasonable inferences could be drawn from these facts. While Barnes argues that her daughter lived in the larger rear bedroom, it is unlikely that Barnes would leave her loaded rifle on the floor of her daughter’s room or store ammunition for the rifle in her daughter’s bureau. Moreover, the size and furnishings of the larger rear bedroom, as well as its proximity to the infant’s room, are consistent with the occupant being the head-of-household with a young child.
In addition to the larger rear bedroom, Barnes clearly had dominion and control over the entire apartment. Barnes had leased the apartment for nine years and the phone was subscribed in her name. Barnes, as the mother of all the regular occupants, was the head of the family in the apartment. Further, Barnes, as a welfare recipient with three dependents, was also the head-of-the household.
Added to this evidence of dominion and control, the government offered further circumstantial evidence suggesting Barnes had knowledge of a large scale drug operation at work in the apartment. The police seized several hundred unused “crack” vials from the clothes dryer in the kitchen. In the pantry, the police found two triple-beam scales commonly used in drug operations. The police discovered over $6,000 cash in an apartment leased by a welfare recipient. Further, the police seized more than 70 grams of “crack” cocaine in close proximity to a loaded, semi-automatic rifle in the apartment.
In response, Barnes mounts several arguments. First, she argues that the testimony of Lulu Barnes was uncontroverted, and Lulu told the jury that Gina, not Alfreda, lived in the larger rear bedroom. But clearly, the fact that Lulu’s testimony was initially ambiguous, as admitted on cross-examination, creates a question of credibility for the jury. Thus, this testimony presented the jury with the task of weighing the credibility of a witness against the reasonable inferences of the government’s circumstantial case. This task was properly before the jury, and, on review, there appears to be ample evidence to support a verdict in favor of either the government or Barnes.
Second, Barnes contends that her identification card was found with her daughter Gina’s card, thus showing a potential conflict in the circumstantial evidence presented by the government. But this response, merely frames the issues placed before the jury, and it does not negate the government’s theory of dominion and control. On appeal, we cannot say that the jury had no rational basis for their verdict.
Third, Barnes argues that most of the circumstantial evidence was not in plain view, and therefore Barnes may not have had knowledge of its existence despite living in the apartment. But clearly the rifle, found beside the bed, and the triple beam scales, found in the pantry, were in plain view. Moreover, it may be arguable that the vials found in the clothes dryer and the cocaine base found in the margarine container were sufficiently in common areas to impute knowledge to the tenant and head-of-household living in the apartment. Nonetheless, we need not answer these specific factual questions because Barnes’s arguments do no more than raise issues for consideration by a jury, and, so long as the jury had a rational basis for its conclusions, we must affirm their verdict.
In sum, we find that on a thorough review of all the circumstantial evidence and the reasonable inferences drawn from that evidence, there is sufficient evidence to support the jury verdict.
III.
The next issue presented by this appeal is whether the government presented sufficient evidence to prove the cocaine base mixture weighed more than 50 grams as required by 21 U.S.C. § 841(b)(l)(A)(iii). The appellant Barnes argues that the government failed to test separately each chunk of cocaine found in the apartment, and therefore, it is possible that one of the three chunks did not contain any cocaine base. Further, if that chunk without cocaine base weighed more than 22.5 grams, the court could not find that at least 50 grams of the 72.5 grams seized contained cocaine base. These arguments, however, fail to consider the express language of 21 U.S.C. § 841(b) and the purity of the cocaine seized.
This issue focuses on the mandatory penalty provisions of 21 U.S.C. § 841(b). If a person knowingly possesses a controlled substance with intent to distribute, such person shall serve a mandatory term of imprisonment depending on the quantity and type of controlled substance. 21 U.S.C. § 841(b). Under subsection (b)(l)(A)(iii), a mandatory 10-year sentence shall apply to violations involving “50 grams or more of a mixture of substance described in clause (ii) which contains cocaine base.” Clause (ii) describes various forms of coca leaves, cocaine, and its derivatives. 21 U.S.C. § 841(b)(l)(A)(ii).
In this case, the DEA chemist testified that all three chunks together weighed 72.5 grams. The chemist also testified that each chunk contained some cocaine and, after being ground into a uniform mixture, the chunks in fact contained cocaine base. Further, the chemist testified that the mixture was 97 percent pure cocaine base.
This evidence is clearly sufficient to satisfy the penalty provisions of section 841(b)(1)(A). The express statute does not require the violation to involve 50 grams of cocaine base; rather it applies to “50 grams of a mixture or substance [of cocaine] which contains cocaine base.” Thus, where the sample weighs 72.5 grams and the mixture contains 97 percent pure cocaine base, the evidence is clearly sufficient for the court to find the contraband seized satisfied the penalty provisions of section 841(b)(l)(A)(iii).
IV.
The next issue presented by this appeal is whether the term “cocaine base” as used in 21 U.S.C. § 841(b)(l)(A)(iii) is so vague as to violate the due process clause of the fifth amendment. The appellant Barnes points out that the term “cocaine base” was included in the statute without any definition. Further, Barnes claims the word “base” appears with several definitions in any traditional dictionary, and consequently, the term “cocaine base” may be subject to any number of possible interpretations creating a vagueness problem. We, however, disagree.
The court recognizes the well-established principle that due process requires a penal statute to “define [a] criminal offense with sufficient definiteness that ordinary people understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). This “void for vagueness” doctrine, however, does not mean a statute is unconstitutionally vague where “Congress might, without difficulty, have chosen ‘clearer and more precise language’ equally capable of achieving the end which it sought.” United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 321, 46 L.Ed.2d 228 (1975) (quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947)). Finally, where the first amendment is not implicated, a “void for vagueness” challenge must be unconstitutional as applied to the defendant and “must be examined in light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975).
To begin our analysis, the term “cocaine base” clearly defines a substance differing from other forms of cocaine. The DEA chemist at trial testified that “cocaine base” was chemically distinguishable from “cocaine hydrochloride.” Cocaine hydrochloride is water soluble, formed in crystals or flakes, and generally snorted by users. Cocaine base is not water soluble, concentrated in a hard rock-like form, and generally smoked. This testimony is consistent with the sources reviewed by this court. See M. Ellenhorn & D. Barcelona, Medical Toxicology: Diagnosis and Treatment of Human Poisoning 645-48 (1988); 3 Court Room Toxicology (MB) Coca 1-2 (1987) (eds. Houts, Baselt, Cravey); Blakiston’s Gould Medical Dictionary 290 (5th ed. 1979). See also United States v. Brown, 859 F.2d 974, 975-76 (D.C.Cir.1988).
Further, in this case, there is no question that the possession of the substance in question is specifically what Congress intended to punish. The chunks seized were the form of cocaine known as “crack,” which was a primary target of the Narcotics Penalties and Enforcement Act of 1986. See 132 Cong.Rec. S11973 (Aug. 15, 1986) (statement of Sen. D’Amato); 132 Cong.Rec. S14270 (Sept. 30, 1986) (statement of Sen. DeConcini); H.R.Rep. No. 845, 99th Cong., 2d Sess. at 11-12, 17 (1986). The substance at issue is not some new form or derivative of cocaine which was not originally contemplated by Congress. Thus, as applied to the facts of this case, the term “cocaine base” clearly does not violate the defendant’s due process rights.
For all these reasons, the appellant fails to show any “void for vagueness” problem with the term “cocaine base” in 21 U.S.C. § 841(b)(l)(A)(iii).
V.
The final issue raised in this appeal is whether the jury instructions concerning reasonable doubt unconstitutionally lowered the government’s burden of proof. The challenged portion of the district court’s charge is as follows:
Reasonable doubt by definition means a doubt founded upon reason not conjec- or which some reason as opposed to conjecture or speculation can be assigned in your minds. I remind you again that the burden is on the government. It is not a doubt suggested by the ingenuity of counsel and unwarranted by the testimony; nor a doubt borne of merciful inclination to permit the accused to escape conviction; nor a doubt prompted by sympathy for those connected with the defendant.
The appellant Barnes argues that the district court’s negative definition of reasonable doubt impermissibly undermined the burden of proof placed on the government. Particularly, the appellant objects to the definition “not a doubt suggested by the ingenuity of counsel.” Relying on our recent decision in United States v. Glantz, we find the appellant’s arguments unpersuasive.
In Glantz, this court considered nearly identical objections to the same instructions from the same district court. 847 F.2d 1, 11-12 (1st Cir.1988). The Glantz opinion expressly disapproved of the “ingenuity of counsel” language, but found that, in light of other extensive and correct definitions of reasonable doubt, the jury instructions taken as a whole caused no constitutional error. 847 F.2d at 11. See United States v. Glenn, 828 F.2d 855, 861 (1st Cir.1987). We note that here, as in Glantz, the trial record is replete with numerous correct definitions of reasonable doubt. These definitions were given several times throughout the trial and in the jury instructions. In light of these definitions, we do not believe the jury could have been misled and thus find no constitutional error.
For all the reasons stated above, we affirm the appellant’s convictions on both counts.
. Honorable Francis J. Boyle, Chief Judge for the District of Rhode Island presiding.
. At trial, three of the seven officers testified for the government: Detective Sergeant Joseph Fus-co, Detective Sergeant Thomas Oates, and Detective Gail Zienowicz.
. As noted in the appellee's brief, this equivocation was not recorded initially by the court reporter on direct examination. Trial Transcript, Vol. Ill, p. 307. On cross examination, however, Lulu Barnes admitted that she changed her first response:
Q Let me just ask you this question, Miss Barnes, isn’t it a fact that about 20 minutes ago when Mr. O’Brien first asked you who was in that bedroom, whose bedroom that was, you said it was Gina’s?
A I always make, you can make a mistake, it’s not Gina’s.
Q But you did say that?
A I said it but it’s not Gina's. It's Alfreda’s bedroom.
Trial Transcript, Vol. Ill, p. 323.
This fact is further corroborated by observations made by the judge during post-trial motions: "One bit of evidence that's been overlooked by everybody seems to me is the defendant’s mother’s testimony in which she was asked the question as to whose bedroom was the one closest to the front door. As I recall that testimony her response was to the effect that that was Gina’s bedroom. Then she changed it. It became Alfreda’s bedroom.” Trial Transcript, Vol. IV, p. 26.
. Where the defendant makes a motion for acquittal at the close of the government’s case and then again at the close of the defendant’s case, this court deems the mid-trial motion as waived by the defendant. Notarantonio, 758 F.2d at 788; Colella v. United States, 360 F.2d 792, 802 (1st Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). The law of this circuit requires this court to examine all the evidence submitted at trial. Notarantonio, 758 F.2d at 788. In this case, applying the "waiver rule,” we shall consider the testimony of the defense’s sole witness, the defendant's mother Lulu Barnes, in evaluating the sufficiency of evidence for the jury verdict.
. As further support, we note that this decision is consistent with this court’s recent decision in United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.), cert. denied, 485 U.S. 1024, 108 S.Ct. 1582, 99 L.Ed.2d 897 (1988). In Calle-Cardenas, the defendant was found in the living room of an apartment along with two other individuals. Certain drugs were found on a table in front of the defendant along with the defendant’s identification card. On review of the evidence, the court found that there was sufficient evidence to prove constructive possession by the defendant.
. It is important to note that the court, not the jury, determines the quantity and type of controlled substance appropriate under 21 U.S.C. § 841(b). See United States v. Gohagen, 886 F.2d 1041 (8th Cir.1989); United States v. Padilla, 869 F.2d 372, 381 (8th Cir.), cert. denied, - U.S. -, 109 S.Ct. 3223, 106 L.Ed.2d 572 (1989). Section 841(b) describes the penalty provisions for violations of section 841(a), in this case possession of a controlled substance with intent to distribute. Therefore, as a penalty provision, the district court judge determines the facts at the sentencing, and, on appeal, we review the court's factual findings, not the jury’s verdict.
In this case, the district court judge properly made a finding during the sentencing as to the quantity and type of the cocaine. See Padilla, 869 F.2d at 381 (conviction vacated and remanded for resentencing where district court had not made findings of fact as to the quantity and type of cocaine). At the sentencing hearing, the court stated: “I’m satisfied that the particular quantity of cocaine base as required by the statute has been proven by the government beyond a reasonable doubt. I am satisfied that the nature of the substance was cocaine base, if those findings of fact have to be made at this point in time.” Trial Transcript, Vol. IV, p. 52.
As a final concern, we note that the judge in this case instructed the jury that it must find the defendant possessed “a detectable amount of cocaine base” and "the amount is more than 50 grams” to return a guilty verdict. Trial Transcript, Vol. Ill, pp. 391-92. In fact, questions as to whether the mixture found was cocaine base and its specific weight were factual findings for the judge at sentencing. The jury need only have found that the three chunks seized contained some mixture of cocaine as defined in schedule II. See 21 U.S.C. § 812. This instruction, however, was not harmful or prejudicial since it created a greater burden for the government, not for the defendant. Cf. Padilla, 869 F.2d at 381 n. 5 (court found no prejudice to defendant where indictment improperly cited penalty provisions of 21 U.S.C. § 841(b) as part of substantive elements of the offense).
. At the outset, we note that the use of the term "cocaine base” in this statute does not present a question of giving adequate notice to possible defendants. The challenged term appears in the penalty provisions of 21 U.S.C. § 841(b). As such, the term "cocaine base” is only relevant to enhanced penalties facing a defendant, and Congress added these penalties without altering the substantive elements of 21 U.S.C. § 841(a). See Anti-Drug Abuse Act of 1986, P.L. No. 99-570, 100 Stat. 3207, 3207-2 (1986) (codified as amended at 21 U.S.C. § 841(b)). Thus, Congress did not criminalize any conduct which was not already illegal, and there is no problem of giving adequate notice of enhanced penalties to possible defendants. See United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988).
In our case, we shall assume that the appellant is challenging the possible vagueness problems in enforcing the term. See Kolender, 461 U.S. at 358, 103 S.Ct. at 1858 (“the more important aspect of the vagueness doctrine ‘is not the actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimum guidelines to govern law enforcement’ ” (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974)). Therefore, in our analysis, we shall focus on problem of vagueness in administering and enforcing the statute rather than in giving adequate notice to the defendant.
. The Narcotics Penalties and Enforcement Act of 1986 was passed as subtitle A of title I of the Anti-Drug Abuse Act of 1986. See Anti-Drug Abuse Act of 1986, P.L. No. 99-570, 100 Stat. 3207, 3207-2 (1986) (codified as amended at 21 U.S.C. § 841(b)).
. We also note that three circuit courts of appeals have faced similar constitutional challenges to the same language in the same statute, and all have found that the term “cocaine base” does not create a due process violation. See United States v. Brown, 859 F.2d 974, 975-76 (D.C.Cir.1988); United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir.1989).
.In reviewing the Glantz and Glenn opinions, we reiterate our disapproval of reasonable doubt defined as "not a doubt suggested by the ingenuity of counsel.” Such a definition "provides an incorrect inference” since “all defenses rely to a great extent on the ingenuity of counsel.” Glantz, 847 F.2d at 11. Further, “[i]f these words stood alone, they could conceivably misdirect the jury’s attention away from the logical force of the doubt and toward its source, leading it to discount reasonable doubts created by defense counsel." Glenn, 828 F.2d at 861 (reviewing similar “ingenuity of counsel” language).
We further note our disapproval of the other language used in the final sentence of the quoted instruction. That too is confusing and incorrect.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_r_fed
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Todd PATTERSON, a Minor suing by his father, Edgar PATTERSON v. FEDERAL BUREAU OF INVESTIGATION, John Doe, an unknown employee of the United States Government and John Doe Agency, an unknown agency of the United States Government. Appeal of Todd PATTERSON in Nos. 89-5342 and 89-5781.
Nos. 89-5342, 89-5781.
United States Court of Appeals, Third Circuit.
Argued Nov. 9, 1989.
Decided Jan. 8, 1990.
Rehearing and Rehearing In Banc Denied Feb. 7, 1990.
Frank Askin (argued), Rutgers Constitutional Law, Newark, N.J., for appellant.
Susan C. Cassell, U.S. Attorney’s Office, Newark, N.J., for all appellees.
Douglas Letter (argued), Robert E. Kopp, Dept, of Justice, Civil Div., Washington, D.C., for F.B.I.
Before MANSMANN and GREENBERG, Circuit Judges, and GAWTHROP, District Judge.
Honorable Robert S. Gawthrop, III, of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
These appeals were born of the ambitious efforts of a sixth grade elementary school student who, in the lawful exercise of his constitutional rights, caused himself to be the subject of an investigation by the Federal Bureau of Investigation (“FBI”). The appeals constitute yet another illustration of the competing need for disclosure of information by government agencies and the need to prevent injury to the national security.
Todd Patterson (“Todd”) appeals from the district court’s orders granting summary judgment to the FBI and denying his post-trial motion filed pursuant to Federal Rule of Civil Procedure 60(b). We hold that the information Todd seeks from the federal agency was properly exempt from disclosure. Therefore, we will affirm the judgment of the district court.
I.
In 1983, Todd, then a sixth grade elementary school student, embarked on a precocious endeavor to write an encyclopedia of the world as part of a school project. Deciding that his school’s resources were inadequate, Todd wrote to 169 countries requesting information. Significantly, Todd enclosed much of this correspondence in envelopes bearing the return address of Laboratory Disposable Products, a business Todd’s parents operated from their home.
The flood of international correspondence engendered by the project attracted the attention of the FBI by means and methods undisclosed by the FBI. In late 1983, an FBI agent appeared unannounced at Todd’s home. The agent spoke to Todd’s parents concerning Todd’s activities and was shown the correspondence received in response to Todd’s requests. Soon after the visit, Todd contacted the FBI agent and spoke with him regarding the school project and the information requests to other countries.
As a result of the school project and the visit by the FBI agent, the FBI came to maintain a file on Todd. The file contained a directive for the FBI’s Newark Division to conduct an appropriate investigation of Laboratory Disposable Products in accordance with Attorney General Guidelines. Also included in the file is a memorandum, prepared on or about February 23, 1984, that changed the subject heading from “Laboratory Disposable Products” to “Todd Patterson.” The memorandum contains a description of Todd’s project and states “Newark indices as well as local criminal checks negative on subject” and “[i]n view of the above, Newark contemplates no further investigation in this matter.” 705 F.Supp. 1033, 1037 (D.N.J.1989).
The FBI maintains that it conducted no further investigation after 1983. However, a document released by the FBI dated December 5, 1985, along with five attachments not released, demonstrate that as of that date some entity of the United States Government continued to monitor Todd’s activities. Todd insists that surveillance remained in effect because he continued to receive pieces of mail in damaged condition. In addition, Todd and his parents report hearing strange background noises on their telephones since 1983.
In April, 1987, Todd requested, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1982), access to records the F.B.I. in Washington, D.C. might be maintaining on him. Todd was informed that the information he requested was exempt from disclosure under 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552a(j)(2). Todd appealed the denial of his FOIA request to the Department of Justice, Office of Information and Privacy, where the determination was upheld. Thereafter, Todd filed a second FOIA request, this time directed to the FBI’s Newark field Office.
In May 1988, Todd initiated a civil suit against defendants FBI, John Doe (an unknown employee of the United States Government), and John Doe Agency (an unknown agency of the United States Government). Todd sought injunctive relief, damages, and disclosure of the requested documents. The complaint presented three distinct causes of action: (1) failure to comply with FOIA; (2) violations of the Privacy Act; and (3) violations of Todd’s First and Fourth Amendment rights and of 18 U.S.C. § 1702 and 19 U.S.C. § 482, statutes relating to the U.S. Mail.
The FBI responded initially to the complaint by offering to expunge Todd’s name from its records. The offer was never accepted. Thereafter, the FBI filed a motion for summary judgment on the first and second causes of action, reasserting that the requested information was exempt from disclosure. As to the third cause of action, the FBI moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). Following oral argument on the motion and in camera review of the withheld documents, the district court granted summary judgment to the FBI on February 7, 1989, on all three causes of action. 705 F.Supp. 1033 (D.N.J. 1989). Todd thereafter filed a motion, pursuant to Fed.R.Civ.P. 60(b), to vacate the judgment or in the alternative to supplement the record which was denied by the district court on August 18, 1989. We have jurisdiction to review the grant of a motion for summary judgment and the denial of a Rule 60(b) motion pursuant to 28 U.S.C. § 1291.
II.
A.
Todd challenges the procedures employed by the district court in its adjudication of the alleged FOIA violation. In particular, Todd contends that the record does not justify the district court’s use of an in camera affidavit and its further in camera examination of withheld documents.
In Lame v. United States Dept. of Justice, 654 F.2d 917, 922 (3d Cir.1981), we expressly authorized the use of in camera affidavits and submissions. We noted that in the ordinary case, “a Vaughn index correlating justifications for non-disclosure with the particular portions of the documents requested will generally suffice to narrow the disputed issues and permit a reasoned disposition by the district court.” Lame, at 922.
However, there are cases, albeit unusual, where the preparation of a detailed Vaughn index would require an agency to disclose the very information that it seeks to withhold. Under these circumstances, we require an agency to submit a public affidavit setting forth, in as detailed terms as possible, the basis for the claimed exemption. Lame, 654 F.2d at 921. The district court must strive to make the public record as complete as possible, soliciting as much information as can be willingly released by the agency. If, however, “the agency is unable to articulate publicly the specific disclosure it fears and the specific harm that would ensue, then in camera inspection of a more detailed affidavit must be resorted to.” See Ferri v. Bell, 645 F.2d 1213, 1224 (3d Cir.1981), opinion modified, 671 F.2d 769 (3d Cir.1982); Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1013 (D.C.Cir.1976). Moreover, to the extent that any public affidavits may appear sufficiently descriptive, it may nonetheless be necessary for the district court to examine the withheld documents in camera to determine whether the agency properly characterized the information as exempt. 5 U.S.C. § 552(a)(4)(B); Lame, 654 F.2d at 921; Ferri, 645 F.2d at 1222; see also Phillippi, 546 F.2d at 1012 (FOIA clearly contemplates that courts will resolve fundamental issues in contested cases on the basis of in camera examination of relevant documents).
We believe the procedural events in the case sub judice are in accord with those procedures outlined above. In seeking discovery from the FBI, Todd propounded interrogatories questioning, inter alia, the internal investigatory procedures of the FBI and the identities of the persons and agencies assigned to Todd’s case. The FBI provided answers to a few of the interrogatories, however, in most instances it claimed exemption from disclosure under the states military secrets privilege and 5 U.S.C. § 552(b)(1) and § 552(b)(7)(C) of the FOIA. In support of its claim of privilege, the FBI submitted the public affidavits of Special Agents Lieberman, Thomas, and Thorton. The purpose of the Thomas affidavit was to provide the district court with a Vaughn index for the records requested by Todd and withheld by the FBI. Lieberman’s affidavit describes the withheld documents and sets forth justifications for those withholdings under the FOIA. Lastly, the Thorton affidavit states that the Patterson premises had never been the subject of electronic surveillance and the FBI was innocent of opening or intercepting any mail directed to the Pattersons.
Ostensibly, the district court found that these affidavits constituted sufficient proof of the privileged nature of the withheld information, for it was not until after oral argument on the FBI’s motion for summary judgment that in camera inspection was ordered. Indeed, the district court’s order directing the ex parte review indicated the following:
because certain issues were raised in oral argument that were not adequately addressed in the supporting papers, I have concluded that in camera inspection of certain withheld documents is required in order for this Court to assure itself that the FBI has acted in good faith with regard to its investigation of Todd Patterson, that the FBI complied with all relevant government regulations, and that the FBI engaged in no illegal conduct.
This in camera review was necessary with respect to only two documents.
The FBI complied with the order by submitting all of the unredacted documents at issue as well as the declaration of James Geer, the FBI Assistant Director in charge of the Intelligence Division. Geer’s declaration was provided as “an explanatory affidavit that goes into more detail than the public affidavits.” The FBI also filed publicly the Declaration and Claim of Privilege of Attorney General Thornburgh so as to assert formally the state secrets privilege.
Thus, the public record consisted of certain redacted documents initially released by the FBI, a few answers to interrogatories, and four affidavits. Not surprisingly, these materials did not allay Todd’s interest in the FBI’s files. Under the circumstances, however, we believe the public submissions represent a good faith effort by the FBI to provide as much access to the information as possible. We can appreciate Todd’s objections to the anomalous situation of having to defend against a motion for summary judgment without being privy to the very documents necessary for such a defense. The Court of Appeals for the D.C. Circuit, which has considered a significant number of FOIA cases, has commented on how this “lack of knowledge by the party seeing [sic] disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution.” Vaughn, 484 F.2d at 824. However, the remedy for the unfairness is an in camera examination by the trial court of the withheld documents and any supporting or explanatory affidavits. Inasmuch as the record was made as complete as possible in this instance, we hold that the proper predicates for accepting records and affidavits in camera were satisfied in this case.
Irrespective of the district court’s in camera review, Todd argues that summary judgment should not have been granted because the FBI failed to sustain its burden to show the sensitive nature of its withheld documents. In reviewing the grant of summary judgment in proceedings seeking disclosure of records under the FOIA, this court’s scope of review is twofold: we must determine whether the district court had an adequate factual basis for its decision and whether its conclusion was clearly erroneous. Cuccaro v. Secretary of Labor, 770 F.2d 355 (3d Cir.1985); Lame v. United States Dept. of Justice, 767 F.2d 66 (3d Cir.1985).
The FBI invoked two exemptions in support of its denial of Todd’s FOIA request. The first exemption provides that documents which are “specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy,” are exempt from disclosure. 5 U.S.C. § 552(b)(l)(1982). In support of its position, the FBI submitted the Thomas affidavit which identifies the relevant Executive Order in this case as being the Executive Order on National Security Information, No. 12356, 3 C.F.R. 166 (1983). Reviewing the Thomas affidavit in conjunction with Executive Order 12356, the district court found, and we agree, that the FBI adhered to the procedural requirements of the Executive Order when the withheld FOIA material was classified.
Next, the affidavit indicates that the documents sought by Todd contain information made eligible for classification by § 1.3(a)(4) of the Executive Order. Particularly, § 1.3(a)(4) provides that information shall be considered for classification if it concerns “intelligence activities (including special activities), or intelligence sources or methods.” 3 C.F.R. 169. This section must be read in conjunction with § 1.3(b):
Information that is determined to concern one or more of the categories in Section 1.3(a) shall be classified when an original classification authority also determines that its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
Id.
The remainder of the affidavit includes Thomas’ description of the documents, the location of the classified portions, and his assertions that the material satisfies the classification criteria of § 1.3(a)(4) and ultimately presents a threat to the national security. The district court found Thomas’ assertions deficient in only two respects. The district court found his references to Documents No. 4 and 5 to be unduly vague and repetitive. Upon in camera inspection of the material, however, the court was convinced that release of the withheld material reasonably could be expected to cause damage to the national security.
We conducted our own in camera review of the documents and accompanying Geer affidavit, mindful that when dealing with documents to which § 552(b)(1) applies courts are expected to accord “substantial weight” to the agency’s affidavit. See American Friends Serv. Com. v. Department of Defense, 831 F.2d 441, 444 (3d Cir.1987); see also S.Conf.Rep. No. 1200, 93d Cong. 2d Sess. 12 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 6267, 6290. We find that the district court’s decision has an adequate factual basis and even on a plenary review we agree with it.
The second exemption invoked by the FBI was § 552(b)(7)(C), which exempts from disclosure:
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ...
(C) constitute an unwarranted invasion of personal privacy ...
5 U.S.C. § 552(b)(7)(C).
In considering this claim, the district court was required to engage in a de novo balancing test: “weighing the public benefit which would result from the disclosure against the privacy interest and the extent to which it is invaded.” Cuccaro, 770 F.2d at 359. In view of its finding that the FBI had not participated in any illegal conduct, the district court concluded that only a negligible benefit would inure to the public by releasing the names of FBI personnel. As a result of our independent examination of the documents, we find that the district court’s conclusion is correct.
Todd also maintains that the blanket exemption from release of the requested documents and the Geer affidavit was over-broad, and that all segregable, non-sensitive portions of the withheld documents should have been released. Our rule in this circuit is that, in response to a FOIA request, “[a]ny reasonably segregable, nonexempt portion of a record is to be made available to the person requesting that record.” Lame, 654 F.2d at 921. In this case, the FBI did release certain papers in which extensive redaction was necessary. Those documents completely withheld were simply inappropriate for partial redaction, except in one instance. The Geer affidavit contains some non-classified portions which could have been disclosed. Responding to questions propounded by this court at oral argument, the FBI admitted that the entire Geer affidavit need not have been withheld. However, the FBI explained that the non-classified parts of that document were available to Todd and disclosure would be made upon request. We are not convinced that earlier disclosure of these non-classified parts would have affected the outcome of the case. Future disclosure will at least assuage some of Todd’s curiosity.
B.
Todd argues that the FBI violated his rights under the Privacy Act, 5 U.S.C. § 552a(e)(7) by collecting information about his protected correspondence with foreign governments and by maintaining records of his protected activity in permanent, retrievable files indexed to his name. The FBI counters with the assertion that under § 552a(e)(7) of the Act the requested records are exempt from disclosure. Concluding that the records were entitled to exemption, the district court granted the FBI summary judgment on the second cause of action of Todd’s complaint.
Our scope of review of the district court’s determination with respect to disclosure under the Privacy Act on summary judgment is the same as that utilized initially by the district court. We must decide whether there exists a genuine issue as to any material fact in dispute, assuming resolution of any disputed fact in favor of the party opposing the motion, and determine whether the moving party is entitled to judgment as a matter of law. Cuccaro, 770 F.2d at 357.
Initially, and as a question of first impression in this circuit, we must interpret the meaning of a portion of § 552a(e)(7). Section 552a(e)(7) prohibits federal agencies from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7) (emphasis added). The precise meaning of the emphasized portion is not defined by the statute itself. The district court compared the decisions of other circuits which have interpreted this particular section and adopted a rule requiring agencies “to demonstrate that any and all records maintained on an individual’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency, and that there exists a sufficient basis for the maintenance of such records.” 705 F.Supp. at 1043 (emphasis in original). It is this definition that the parties now dispute. Todd argues that agencies should be made to show a “substantial relationship” between the records and the government activity. He insists that a “relevancy” standard acts to dilute his First Amendment rights.
Congress’s intent, as revealed in the statute’s legislative history, is for § 552a(e)(7) to prevent “collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future.” S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6916, 6971. The history also instructs:
that the kind of information about individuals which an agency seeks to gather or solicit, and the criteria for programs to investigate individuals will be judged by an official at the highest policy making level to be relevant and necessary to a statutory purpose of the agency.
1974 U.S.Code Cong. & Admin.News 6916, 6960 (emphasis added).
Only four courts of appeals have expressed an opinion as to the standard warranted when evaluating a claim under § 552a(e)(7). The Court of Appeals for the Fourth Circuit has held that Section (e)(7) is violated “to the extent that the [agency] has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce ...” Clarkson v. I.R.S., 678 F.2d 1368, 1375 (11th Cir.1982), cert. denied, 481 U.S. 1031, 107 S.Ct. 1961, 95 L.Ed.2d 533 (1987). A case-by-case analysis of whether an agency’s actions were pertinent to authorized law enforcement activity was adopted by the court in MacPherson v. I.R.S., 803 F.2d 479 (9th Cir. 1986). Section (e)(7) was interpreted by the Sixth Circuit as allowing “investigation with respect to the exercise of first amendment rights if such investigation is relevant to an authorized criminal investigation or to an authorized intelligence or administrative one.” Jabara v. Webster, 691 F.2d 272, 279 (6th Cir.1982), cert. denied 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983) (emphasis added). The Jabara standard was adopted in Nagel v. U.S. Dept. of Health, Education and Welfare, 725 F.2d 1438, 1441 n. 3 (D.C.Cir.1984).
In our view, a relevancy standard is more consistent with Congress’s intent and will prove to be a more manageable standard than employing one based on ad-hoc review. The weight of authority supports a rule requiring a federal agency to establish some nexus between its files and classified activities. A burden as heavy as that suggested by Todd has never been imposed. We, therefore, hold that a federal agency defending its maintenance of records under Section (e)(7) must demonstrate that its records on an individual’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency. Thus, the district court’s interpretation of the section was legally correct.
Applying this standard to the FBI’s records, especially the Geer affidavit, we are persuaded, as was the district court, that the records maintained by the FBI on Todd’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the FBI. Continued maintenance of such records also will not violate any provision of the Privacy Act. Accordingly, with no issue of material fact to resolve, the district court properly entered summary judgment.
C.
The FBI filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) as to Todd’s third cause of action, arguing that in actions instituted in federal court under federal law, courts have eliminated fictitious defendants by motion. In his motion in opposition to the summary judgment motion, Todd maintained that pleading fictitious defendants was allowable until such time as the real parties in interest, who could only be identified through further discovery, could be substituted. The district court found, as a matter of fact, that the FBI and any FBI or other government employees involved in activities concerning Todd had acted in accord with all applicable statutory, regulatory, and administrative guidelines. Further, the district court held that the FBI had properly invoked the state secrets privilege in defense to Todd’s interrogatories. Because these findings were made by considering matters outside the pleadings, i.e., documents submitted for in camera review, the district court converted the motion to dismiss into one for summary judgment, as is authorized for Rule 12(b)(6) motions, and entered judgment in favor of the FBI. Todd contends that in treating the Rule 12(b)(2) motion as one for summary judgment, the district court denied him the opportunity to properly defend his position on the merits. The FBI concedes procedural error but insists that it is “plainly harmless.”
We have had occasion to consider the procedural distinction between a Rule 12(b)(6) motion and a Rule 12(b)(2) motion. In Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir.1984), we explained the mechanics of a Rule 12(b)(2) motion as follows:
A Rule 12(b)(2) motion, such as the motion made by the defendants here, is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdiction actually lies. Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Contrary to the dissent’s suggestion, therefore, at no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant’s Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. See International Ass’n of Machinists & Aerospace Workers v. Northwest Airlines, 673 F.2d 700 (3d Cir.1982). Once the motion is made, plaintiff must respond with actual proofs, not mere allegations.
Time Share Vacation Club, 735 F.2d at 67 n. 9.
In support of its motion, the FBI submitted the Thorton, Thomas and Lieberman affidavits and its answers to interrogatories. Following oral argument on the motion, the FBI produced the Geer affidavit and the total collection of withheld documents. These materials, they contended, clearly evidenced the nonparticipation of the FBI in any mail cover activity. To the extent that the materials revealed the identities of another agency or agencies whose operations concerned Todd’s mailings, the FBI asserted the state secrets privilege to prevent disclosure. Todd’s case consisted of the affidavits of himself and his mother asserting that he had received damaged mail.
A careful reading of the district court’s opinion suggests that the court by implication decided that an action could at least be initiated against a John Doe defendant. Such a determination, however, begs the question whether Todd could receive any further meaningful discovery, so as to ultimately identify the real parties in interest, in light of the FBI’s assertion of the state secrets privilege. Finding that “a ‘reasonable danger’ that harm to the national interest will ensue if defendants are forced to comply with plaintiff’s discovery requests,” the district court held that the state secrets privilege had been properly invoked. 705 F.Supp. 1046. The district court then reasoned that if the record contained no evidence of abuse by the FBI, and the privilege applied to other information known to the FBI, then the case presented no issue of material fact and should be dismissed accordingly.
A Rule 12(b)(2) motion cannot be treated as one for summary judgment. There are situations, however, where “the question of the district court’s jurisdiction [is] entwined with the ultimate question on the merits.” International Ass’n of Machinists v. Northwest Airlines, 673 F.2d 700, 710 (3d Cir.1982). In such circumstances, it may be necessary for the district court “to proceed to a decision which impacts on the merits.” Id.; see also Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947) (district court had jurisdiction to determine its jurisdiction by proceeding to a decision on the merits).
The facts of this case present this type of complicated review. At the time the Rule 12(b)(2) motion was filed, Todd had already received certain redacted papers, three affidavits and answers to interrogatories. After in camera review of the withheld documents, the district court concluded that Todd could not secure any further discovery. The John Doe defendants would thus remain unknown. Since the suit could not be maintained against a fictitious party, the district lacked in personam jurisdiction.
We find it insignificant that the district court treated the Rule 12(b)(2) motion as one for summary judgment and dismissed the cause of action for lack of a genuine issue of material fact. Such a finding is beyond the initial and necessary inquiry of whether in personam jurisdiction actually lies. The FBI’s evidence, both public and in camera materials, convinces us that (1) the FBI is not one of the John Doe defendants, and (2) the FBI is shielded from further disclosure by the state secrets privilege. Todd thus failed to sustain his burden of proof in establishing in personam jurisdiction. Accordingly, the cause of action was properly dismissed.
D.
An order denying a motion for relief from judgment pursuant to Fed.R.Civ.P. 60 is reviewed for abuse of discretion. Lasky v. Continental Products Corp., 804 F.2d 250 (3d Cir.1986). In view of the facts of this case, we find no evidence that the district court abused its discretion in denying Todd’s Rule 60(b) motion.
III.
For the foregoing reasons, we will affirm the judgment of the district court in both appeals.
. The appeals, filed separately from each order, were consolidated for disposition by order of the Clerk.
. The parties dispute the actual number of files. It is clear from the record that at least one file was created. Todd, however, insists that at least six files exist. This was also the district court’s conclusion.
. Todd subsequently received an invitation from the Soviet Mission in New York to visit their facility, which he did after voluntarily contacting the FBI. He was requested to and did contact the FBI following his visit.
. FOIA requests made to the FBI are limited to files maintained at either the FBI headquarters or the individual field office where the request is made. Appellee's brief at 27.
. The FBI indicated at oral argument that the offer remained open. Todd's position, voiced by his attorney, was that he was unwilling to accept the offer without first reviewing the documents.
. Because it had considered matters outside the pleading, the district court considered the motion to dismiss the third cause of action as one for summary judgment. See infra part II.C.
. A Vaughn index is an affidavit which supplies an index of withheld documents and details the agency’s justification for claiming exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
. The state secrets privilege was first recognized in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). As explained by the Court,
[i]t may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.
345 U.S. at 10, 73 S.Ct. at 533.
. We note that notwithstanding this imbalance between the parties, the D.C. Circuit, as well as other circuits, have allowed the use of in camera affidavits in national security cases. See e.g., Molerio v. F.B.I., 749 F.2d 815 (D.C.Cir. 1984); Fitzgerald v. Penthouse Intern., Ltd., 776 F.2d 1236 (4th Cir.1985); Jahara v. Webster, 691 F.2d 272, 279 (6th Cir.1982), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983); and Hayden v. N.S.A., 608 F.2d 1381 (D.C.Cir. 1979).
. On the basis of our in camera review of the documents we have no hesitation in stating that there is nothing derogatory in them regarding Todd or any member of his family.
. The district court denied Todd's request to have his attorney present at the in camera proceedings. Although Todd alleges error on appeal, we find that the issue merits no further discussion.
. The FBI’s counter-argument in the district court was that its central record system is exempt under § 552a(j)(2). The district court rejected this contention, finding that the FBI had failed to show that its records on Todd were compiled specifically for purposes of a criminal investigation. This particular argument has been abandoned by the FBI on appeal.
. We can affirm, if the result reached by the district court is correct, even though our reasoning differs from that of the district court. See Tunnell v. Wiley, 514 F.2d 971, 975 n. 4 (3d Cir.1975).
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Peter M. ROBERTS, Plaintiff-Appellee, v. SEARS, ROEBUCK & CO., Defendant-Appellant.
No. 82-1886.
United States Court of Appeals, Seventh Circuit.
Argued March 30, 1983.
Decided Dec. 21, 1983.
Rehearings Denied Feb. 22, 1984.
James G. Hunter, Jr., Latham, Watkins, Hedlund, Hunter & Lynch, Chicago, Ill., for defendant-appellant.
Louis G. Davidson, John B. Davidson, Sidney Neuman, Harry J. Roper, Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, and BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, and COFFEY, Circuit Judges.
Judge Pell and Judge Flaum did not participate in the consideration of this case.
HARLINGTON WOOD, Jr., Circuit Judge.
After years of interesting struggles with patent issues under the tutelage of the distinguished patent bar in this Circuit, this court, by reason of the Federal Courts Improvement Act of 1982, soon must leave these appellate issues to the experts of the United States Court of Appeals for the Federal Circuit. Our view of patent matters therefore will be of little future consequence; nevertheless, we hope to leave.the field in good standing.
In a jury trial in the district court, plaintiff Roberts’ patent was found to be valid and infringed; judgment was entered in his favor in an amount in excess of eight million dollars. On appeal, the original panel, in a concise opinion authored by Judge Posner, concluded the patent was invalid as obvious, reversed the district court, and directed that the case be dismissed. This court determined that the case required en banc consideration. A majority now reaches a conclusion at variance with that of the original panel. At issue is the oftentimes confused role of the jury in a patent infringement action in which the invalidity of the patent in suit is raised as an affirmative defense.
I
Those of us who have experimented, not always successfully, with the “do-it-yourself” approach to car or bicycle repairs may have had occasion to use a conventional socket wrench. When we were able to tell the nut from the bolt, wished to remove the former, and had located the socket of the correct size, the problem became how to remove the socket then attached to the wrench. After pulling, prying, muttering, and more pulling, the two-handed operation was completed. Plaintiff Peter Roberts, having personally experienced such frustration, addressed himself to that problem; in 1963, he designed and constructed a prototype socket wrench with a quick-release feature that permitted its user to facilely change sockets with one hand without the customary pulling, prying, and muttering. Roberts filed an application for a United States patent on the wrench in April, 1964, which was rejected in March, 1965. He then extensively amended his application and presented a single claim upon which a patent formally was issued on September 28, 1965.
Defendant Sears, the assignee of all rights to Roberts’ patent, mounted an advertising campaign which explained, in layman’s terms, the principal advantage of Roberts’ claimed invention: “Push-button ratchet wrench releases without a fight. Ever tried to separate a socket from an ordinary ratchet wrench when your hands were greasy? Forget it. You just press a button on Sears new Craftsman wrench. They separate easily — no yanking.” Roberts’ quick-release wrench was an enormous commercial success.
In 1969, Roberts sued Sears alleging, inter alia, that he was fraudulently induced to assign his rights to the invention to Sears. The jury awarded Roberts one million dollars in damages. This court affirmed the district court’s judgment against Sears and its decision not to alter Roberts’ monetary award, but reversed the district court’s determination that it lacked authority to order rescission of the agreement assigning Roberts’ rights to Sears. Roberts v. Sears, Roebuck & Co., 573 F.2d 976, 986 (7th Cir.1978) (Sears I).
Following the remand, Sears prepared, executed, and tendered to Roberts, through the district court, reassignment of any and all rights in the patent obtained pursuant to the June 15,1965, agreement, the sole equitable relief anticipated by this court in Sears I. The district court, however, further ordered the entire case reopened for an accounting of Sears’ “unjust enrichment” from June 15, 1965. On appeal, this court held that because Roberts had elected to submit his damage claim to a jury, he was precluded from pursuing the equitable remedy of restitution for “unjust enrichment.” Roberts v. Sears, Roebuck & Co., 617 F.2d 460, 465 (7th Cir.1980).
This court further held that Sears was the lawful owner of all patent rights from June 15, 1965, to January 20, 1977, when Roberts, through reassignment, became the lawful owner of all patent rights. We stated that Roberts would be entitled to sue only for infringement occurring after January 20, 1977. Although Sears was precluded from challenging the validity of the patent in the first trial, we made clear that Sears could do so if sued by Roberts for post-January 20, 1977, infringement. Id.
And it came to pass. Roberts instituted an infringement suit against Sears, which defended on the ground that the patent was invalid as both anticipated and obvious. Roberts demanded a jury trial, which was bifurcated at Sears’ request. Following a five-day trial on the issues of infringement, willful infringement, and validity, the jury was instructed on the relevant substantive law and given five “special verdict” forms to be answered “yes” or “no” pursuant to Fed.R.Civ.P. 49. They read as follows:
(1) We, the jury, find that the defendant willfully infringed the Roberts patent by selling the Roberts type wrenches after January 1977.
(2) We, the jury, find that the Orszulak or Z type design which defendant started to sell in 1980 infringes the Roberts patent in suit.
(3) We, the jury, find that the defendant willfully infringed the Roberts patent by selling the Orszulak or Z type wrenches after January 1977.
(4) We, the jury, find the Roberts patent is new and not anticipated by the Carpenter patent or the Gonzalez patent.
(5) We, the jury, find that the subject matter of the Roberts patent considered as a whole was not obvious to one of ordinary skill in the art in the years 1963-64.
All but special verdict number three were answered affirmatively by the jury. Number three is not now an issue. A two-day trial on the issue of damages followed, resulting in a jury award for Roberts of five million dollars.
The district court composed no findings of its own. Instead, on Roberts’ motion, the district court entered an order adopting as its findings the affirmatively answered special verdicts rendered by the jury finding the Roberts patent not to have been anticipated or obvious, and to have been infringed. The district court concluded that the Roberts patent “is good and valid in law.” The damage award for willful infringement of the Roberts patent by sale of the Roberts-type wrench was increased by a factor of two, bringing the total award to $8,190,254. The district court permanently enjoined Sears from making, using, or selling the infringing wrenches through September 28, 1982, the Roberts patent expiration date. Sears’ motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied.
Sears appealed, contending, inter alia, the Roberts patent was invalid because its claim was anticipated by, and further would have been obvious in light of, prior art references not before the patent examiner. Sears also claimed the district court erred in submitting to the jury the “legal questions” of obviousness and anticipation. The three-judge panel of this court reversed the district court’s judgment based on the jury verdict, reached its own contrary conclusion that the patent was invalid for obviousness, and directed that the complaint be dismissed. Roberts v. Sears, Roebuck & Co., 697 F.2d 796 (7th Cir.1983). Roberts’ petition for rehearing with suggestion for rehearing en banc was granted, and the panel decision was vacated by order dated March 14, 1983.
We find it necessary to address only one issue: whether the jury instructions and procedure utilized mandate reversal of the judgment and remand for a new trial. We premise our discussion of this issue with a review of relevant patent principles.
II
Article I, § 8, cl. 8 of the Constitution empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective writings and Discoveries.” In the exercise of this power, Congress enacted the Patent Act of 1952 (the Act), 35 U.S.C. § 1 et seq. The Act sets forth three criteria of patentability: novelty, utility, and nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966). In a patent infringement suit, the defendant may challenge successfully the validity of the plaintiff’s patent or any claim thereof by proving that any one of these three conditions of patentability was not satisfied; if the patent is proved invalid, the infringement issue is not reached. Moore v. Wesbar Corp., 701 F.2d 1247 (7th Cir.1983); Swofford v. B & W, Inc., 395 F.2d 362, 364 (5th Cir.1968). Sears, conceding the utility of the Roberts quick-release mechanism, claims it is undeserving of patent protection because it fails to satisfy the statutory conditions of novelty, the anticipation feature of which is at issue in this case, and nonobviousness.
Sears contends that the trial court erred in submitting to the jury the two issues of anticipation, which negates novelty, and obviousness; Sears further argues that requiring the jury to determine these issues necessarily required it to interpret the claim in Roberts’ patent, a function that is, with limited exceptions, for the trial court. We premise our discussion of these claims of error by recognizing that to the trial judge presented with an infrequent demand for a jury trial in a patent infringement case falls the most difficult task of determining which of the plurality of issues subsidiary to the ultimate determination of patent validity are subject to jury determination.
The indiscriminate use of inconclusive labels has engendered a great deal of confusion in the field of patent law. The lack of uniform decision and reasoning in circuit codrt opinions leaves the researcher of the issue whether the standards governing the determination of patentability present legal or factual issues with no definitive answer. Chief Judge Hastings, in recognition of this Circuit’s contribution to the disorder, stated in a separate opinion in Armour & Co. v. Wilson & Co., 274 F.2d 143, 155 (7th Cir. 1960):
We have come to speak of questions of “facts,” “primary facts,” “subsidiary facts,” “evidentiary facts,” “ultimate facts,” “physical facts,” “documentary facts,” “oral evidence,” “inferences,” “reasonable inferences,” “findings of fact,” “conclusions,” “conclusions of law,” “questions of fact,” “questions of law,” “mixed questions of law and fact,” “correct criteria of law,” and so on ad infinitum. The simple answer is that we are all too frequently dealing in semantics, and our choice of words does not always reflect the magic we would prefer to ascribe to them.
We enter this labyrinth of conflicting ease law with one basic guidepost — the Patent Act itself as interpreted by the Supreme Court. In Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court pronounced the ultimate question of patent validity a question of law; the determination of patentable invention requires the courts “to give effect to the constitutional standard by appropriate application, in each case, of the statutory scheme of the Congress.” Id. at 6, 86 S.Ct. at 688. The determination requires an exercise in statutory construction, which, as the Supreme Court recognized, is statutory application in practice; the development of the factual content to which the statutory standard is to be applied is within the province of the fact-finder.
To be patentable, a device must be new, useful, and properly classified as invention. The issue of patentability, then, involves several inquiries: what constitutes the prior art and what does it disclose in scope and content; are there differences between the prior art and the claimed invention which render the latter an improvement on the former; and would the improvement have been obvious to one of ordinary skill in the pertinent art at the time the invention was made. Armour & Co. v. Wilson & Co., 274 F.2d at 156.
The first two inquiries determine novelty under § 102; in simple terms, there must be a difference between each prior art reference and the device sought to be patented for the latter to be. deemed “new.” Only if such differences exist does § 103 require a determination whether the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time of invention to one of ordinary skill in the art. Nonobviousness, then, distinguishes those useful innovations that are capable of sustaining a patent from those that are not. Graham v. John Deere Co., 383 U.S. at 3-4, 11, 86 S.Ct. at 686, 690.
We turn first to a more detailed discussion of novelty. A device is “new” if its essence has not been disclosed in a prior art device. Section 102(a), (e), and (g) provide, in distilled form, that a device lacks novelty if it has been anticipated by a prior patent or publication in this or a foreign country or by prior use, knowledge, or invention in this country. This court has stated that anticipation is strictly a technical defense; “[ujnless all of the same elements [of the patented device] are found [in a single prior art device] in exactly the same situation and united in the same way to perform an identical function,” the former is not anticipated by the latter. Illinois Tool Works, Inc. v. Sweetheart Plastics, Inc., 436 F.2d 1180, 1182-83 (7th Cir.1971). We also have stated, however, that “[w]hen the only features distinguishing the purported invention from a prior art product are insubstantial, the earlier may properly be said to anticipate the later product.” Shelco, Inc. v. Dow Chemical Co., 466 F.2d 613, 614-15 (7th Cir.), cert. denied, 409 U.S. 876, 93 S.Ct. 125, 34 L.Ed.2d 129 (1972). Thus, in this Circuit, the test has been one of substantial identity; “[i]t is sufficient if the general aspects are the same and the difference in minor matters is only such as would suggest itself to one of ordinary skill in the art.” Amphenol Corp. v. General Time Corp., 397 F.2d 431, 438 (7th Cir.1968). See also Popeil Brothers, Inc. v. Schick Electric, Inc., 494 F.2d 162, 164 (7th Cir.1974); Deep Welding, Inc. v. Sciaky Brothers, Inc., 417 F.2d 1227, 1234 (7th Cir.1969).
Substantial identity is determined by reference to the language of the patent claims, which define the ambit of the claimed invention. Thus, the determination whether a patented device has been anticipated by a prior art reference requires a two-step analysis: (1) the identity of the patented device, as well as its scope, must be determined by the claims submitted to and allowed by the Patent Office; and (2) the patented device, as so defined, must be compared with each prior art reference.
Construction of the patent claims is a question of law, Super Products Corp. v. D P Way Corp., 546 F.2d 748, 756 (7th Cir.1976), and thus ultimately the responsibility of the trial judge in a patent infringement case tried to a jury. If, however, extrinsic evidence is needed to explain a term of art in a patent claim, the meaning of which is disputed, a narrow factual issue for jury determination is presented. Id.
The issue whether a prior art reference and the patented device are substantially identical may be treated as a question of pure construction in a case in which no substantial disputes of fact are presented and the clarity of the patent documents is such that the court can determine from mere comparison of the descriptions contained therein whether the devices at issue are substantially identical. However,where material factual disputes exist as to the scope and content of the prior art and the differences between each prior art reference and the patented device, as identified by the trial court, issues for jury determination, if a jury is to be the fact-finder, are presented. This is not to say that the trial court does not maintain ultimate control over the issue of anticipation. To hold otherwise would be to vitiate the Supreme Court’s determination that patent validity ultimately is a question of law. Novelty, like utility and nonobviousness, is a condition precedent to patentability. In any given case, lack of novelty may be the ultimate determinant of patent validity; as such, the issue must be deemed to be within the province of the court.
Assuming differences between the patented device and each prior art reference preclude a finding of anticipation, under the broader obviousness test, the disclosures of the prior art references may negative invention because in their light the patented device would have been obvious at the time the ’ invention was made to a person having ordinary skill in the pertinent art.
Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), established the exclusive means by which to measure nonobviousness under section 103. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963, 972 (7th Cir.1979). In reviewing a trial court’s application of the Graham standard, we are mindful of the Court’s admonition that “strict observance of the requirements laid down here will result in that uniformity arid definiteness which Congress called for in the 1952 Act.” Graham v. John Deere Co., 383 U.S. at 18, 86 S.Ct. at 694.
While the ultimate question of patent validity is one of law,... the § 103 condition... lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the pri- or art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unresolved needs, failures of others, etc. might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevance.
Id. at 17-18, 86 S.Ct. at 693-694 (emphasis added).
One can readily see that the factual inquiries necessary to the determination of anticipation (i.e., the scope and content of the prior art and differences between each prior art reference and the claims of the patent in suit) also compose part of the tripartite factual inquiry upon which the determination of obviousness must rest. The anticipation inquiry, itself largely factual in nature, Hughes Tool Co. v. Ingersoll-Rand Co., 437 F.2d 1106, 1108 (5th Cir.), cert. denied, 403 U.S. 918, 91 S.Ct. 2230, 29 L.Ed.2d 696 (1971), is subsumed within the obviousness inquiry. Under the obviousness test, however, an additional factual inquiry is to be made: the level of ordinary skill in the pertinent art must be determined.
Several crucial concepts, as expounded upon in Graham and its progeny, are embodied in the section 103 standard.
The nature of the problem confronting the would-be inventor defines the relevant prior art. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d at 975. Pertinent art has been defined as that art to which one can reasonably be expected to look for a solution to the problem that the patented device attempts to solve. Morpul, Inc. v. Crescent Hosiery Mills, 265 F.Supp. 279, 303 (E.D.Tenn.1967). Inquiry into the level of ordinary skill in the pertinent art is necessary because a patentable invention must evidence more ingenuity and skill than that possessed by an ordinary mechanic acquainted with the business. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d at 975.
Obviousness is measured not by determining what would have been obvious to actual artisans, but by considering whether a hypothetical person, possessing reasonable skills in the pertinent art and knowledge of all prior art, would have found the same solution when addressing himself to the same problem. Id. Invalidity should not be found on the theory that if a development is obvious to the court, it must have been obvious to a person having ordinary skill in the art. Buzzelli v. Minnesota Mining & Manufacturing Co., 480 F.2d 541, 542-43 (6th Cir.1973). Judge Learned Hand put it this way:
To judge on our own that this or that new assemblage of old factors was, or was not, “obvious” is to substitute our ignorance for the acquaintance with the subject of those who were familiar with it.
Reiner v. I. Leon Co., 285 F.2d 501, 504 (2d Cir.1960), cert. denied, 366 U.S. 929, 81 S.Ct. 1649, 6 L.Ed.2d 388 (1961).
It also should be borne in mind that obviousness can only be determined by reference to the precise facts presented; intuitive analysis distorted by the invention’s simplicity and retrospective self-evidence must be avoided. Simplicity is not to be equated with obviousness. Skee-Trainer, Inc. v. Garelick Manufacturing Co., 361 F.2d 895, 899 (8th Cir.1966). Experience has shown that some of the most simple advances have been the most nonobvious. Van Veen v. United States, 151 U.S.P.Q. 506 (Ct.C1.1966). Patentability does not depend upon an astonishing breakthrough or creation of a new technology. Sauer Machine v. Corrugated Finishing Products, Inc., 642 F.2d 203, 206 (7th Cir.1981). In addition, a court must be careful not to declare an innovation obvious because it has become obvious through hindsight.” Id. “ ‘Obvious to try’ is not the same as ‘obviousness.’ ” Novo Industri A/S v. Travenol Laboratories, Inc., 677 F.2d 1202, 1208 (7th Cir.1982), quoting In re Goodwin, 576 F.2d 375, 377 (C.C.P.A.1978), aff’d, 599 F.2d 1061 (C.C.P.A.1979).
Nor is the focus on the manner in which the invention was achieved or on the quality of the mind behind it. “[I]t is immaterial whether ‘the invention resulted from long toil and experimentation or from a flash of genius.’ ” Graham v. John Deere Co., 383 U.S. at 16 n. 8, 86 S.Ct. at 693 n. 8, quoting section 103 Reviser’s Note.
Although prior to 1966 courts often dealt with obviousness as a question of fact, Graham established patent validity, of which nonobviousness is the ultimate determinant, as a question of law. This court consistently has viewed obviousness as a question of law, but that legal determination must rest upon the tripartite factual inquiry set forth in Graham. See, eg., Dickey-john Corp. v. International Tapetronics Corp., 710 F.2d 329 (7th Cir.1983); Dual Manufacturing & Engineering, Inc. v. Burris Industries, 619 F.2d 660 (7th Cir.) (en banc), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980). With the Graham -mandated factual determinations in hand, the court must draw the inferences that the findings reasonably induce, and reach the ultimate legal question whether the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the pertinent art and knowledge of all prior art. 35 U.S.C. § 103; Sakraida v. Ag Pro, Inc., 425 U.S. at 280, 96 S.Ct. at 1536; Moore v. Wesbar Corp., 701 F.2d at 1250.
Graham, in setting forth the analytical steps to be taken in determining obviousness, necessarily clarified the respective functions of judge and jury, as well as the scope of appellate review: disputes as to the Graham subsidiary facts are within the province of the jury; however, responsibility for the ultimate determination of obviousness lies with the trial judge, who must determine whether the facts as found by the jury -fall within the legislative standard.
An appellate court does not sit to adjudicate de novo the factual issues underlying the determination of obviousness. When made in a bench trial, the Graham factual determinations are reviewed under the clearly erroneous standard of Rule 52(a), Federal Rules of Civil Procedure. When these factual determinations have been made by a jury, our review is limited, assuming the instructions are not an issue, to ascertaining whether the denial of a motion for a new trial or a motion for a judgment notwithstanding the verdict was an abuse of discretion. An appellate court’s independent review of the trial judge’s conclusion of law is predicated upon the factual determinations made in the district court. See generally 2 D. Chisum, Patents § 5.04[3] n. 32 (1983).
Before turning to an examination of how decisional responsibilities were allocated between judge and jury in this case, we must determine whether there was a total absence of subsidiary factual disputes that would have required the trial judge to dispose of the entire case as a matter of law. Dual Manufacturing & Engineering, Inc. v. Burris Industries, 619 F.2d at 663.
Ill
Shown below in Figure 1 is a conventional socket wrench. It consists of a handle (3) and a detachable socket (2). The pushbutton (1) on the head of the wrench corresponds with the pushbutton (also 1) on Roberts’ quick-release mechanism shown below in Figure 2. Dr. Youngdahl, Roberts’ expert witness, explained the structure and operation of the Roberts quick-release mechanism. The principal object of Roberts’ device was to provide a means for releasing a socket from a conventional wrench and engaging another in a one-handed operation. Although the Roberts quick-release mechanism retains the ball-type detent (4) utilized in the conventional wrench, in place of a spring directly behind the ball, Roberts uses a springloaded pin (5) that moves in the center of the stud (6). The pin contains a specially-shaped camming recess (7). “Selective alignment,” a key feature of the Roberts device, refers to the' type of ball and pin positioning that results from the “camming action” between the sloped recess of the pin and the curved surface of the ball. In the socket retaining position, small longitudinal movements of the pin result in changes of position of the ball with respect to the pin; the ball and pin can assume one of an infinite number of positions relative to one another depending upon the depth of the socket dimple. The ball will be cammed outward only as far as is necessary to engage the socket dimple. This “selective alignment” feature is claimed to offer unique advantages: it results in a smooth, reliable quick-release operation; it allows use of sockets with various dimple depths; it automatically compensates for socket wear; it prevents “hang up” of the ball detent; and it allows for one-handed operation in both removing and replacing sockets. To release the socket, the pushbutton (1) is depressed, moving the pin to the position where the ball can begin to move along the sloped recess of the pin. Once the ball is in the recess, the socket can fall of its own weight. With the pushbutton still depressed, a new socket may be slipped on and securely retained by releasing the pushbutton, all in a one-handed operation. It is obviously easier to use the wrench than it is to understand what makes it easier to use.
Sears’ expert witness, Smyers, testified that nothing in Roberts’ claim denominates his device as a quick-release mechanism; he further testified that Roberts’ claim does not specify a particularly-shaped recess.
The trial transcript discloses numerous factual disputes as to the structures, operations, and functions of, and the differences between, the prior art and the patent in suit.
Dr. Youngdahl testified that the Carpenter device, a locking device for a socket wrench patented in 1928 (U.S. Patent No. 1,660,989) was not a quick-release mechanism, but was designed to effect a positive lock of the socket on the wrench through the use of a spring arm. He further testified to the Carpenter structure and operation as follows: Carpenter’s essential element, the spring arm upon which the ball usually rests, was designed to prevent the ball from moving into and becoming stuck in the recess, thereby inadvertently allowing unlocking of the socket. Although Carpenter contains a long, narrow, triangularly-shaped slot, its purpose is to receive the spring arm; to release the lock, the user pushes the button inward to place the recess under the ball; the ball, however, does not move into the recess because the spring arm continues to bear it outward. Therefore, it is claimed the socket must be removed forcefully; it will not fall of its own weight. Insofar as the Carpenter device discloses a pushbutton, pressing it merely unlocks the socket but does not effect release or removal of the socket from the wrench.
Youngdahl further testified that if the spring arm is removed, a “camming action” between the inclined surface of the recess and the ball may or may not force the ball toward the locking position; it “may cam” or it “may jam”; in Youngdahl’s opinion, the Carpenter geometry cannot provide for selective alignment. On cross-examination, Youngdahl, asked to assume that the Carpenter device contained a very weak spring arm, agreed that the force generated by the “camming action” might overcome the spring force and allow the ball to move into the recess, thereby effecting release of the socket. He further stated, however, that a weak spring arm will not éffect the locking of the socket on the wrench, the primary goal of the Carpenter device.
Smyers contrarily testified that Carpenter was a quick-release wrench. Although Smyers conceded that the text of the Carpenter patent did not so specify, he stated that he believed the spring arm was an optional feature. Smyers testified that when the pushbutton is depressed, the recess in the Carpenter device will be aligned with the ball. The weight of the socket will force the ball into the recess, releasing the socket. He further testified that a camming action between the slightly slanted sides of the recess and the ball will force the ball to its locking position.
Youngdahl’s testimony on the Gonzalez device, a ball socket attachment for impact tools and socket wrenches patented in 1965 (U.S. Patent No. 3,172,675), may be summarized as follows: Gonzalez was designed to effect a positive lock of the socket on the wrench under the adverse conditions encountered with impact tools; the flat surface of the flange, with which the ball is normally engaged, “holds the ball out positively”; therefore, as planned, small longitudinal movements of the pin do not result in a change of position of the ball. Youngdahl stated that Gonzalez designed his device so that there would be a sharp discontinuity between the pin and flange, giving rise to the flat edge which supports the ball. When the pushbutton is depressed to release the socket, the ball drops into a space behind the flange. In Youngdahl’s opinion, the open space behind the flange in Gonzalez performs only one function — receiving the ball in the socket removing position; it will not invariably perform the function of camming the ball outward into the socket retaining position, as Roberts’ recess will. In order to perform the dual function that Roberts’ recess does, a sloping face must be cut in the flange, and the space behind the flange enlarged. It was Youngdahl’s further opinion that realistic limitations on the size of a socket wrench would preclude the necessary enlargement of this space.
Smyers, however, was of the opinion that the space behind the flange in Gonzalez will receive the ball and allow the socket to fall of its own weight or be manually removed. It was his further opinion that
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
J. C. PENNEY CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, v. Retail Clerks International Association Local 253, AFL-CIO, Intervenor.
No. 17730.
United States Court of Appeals Sixth Circuit.
April 15, 1968.
John C. Egbert, Jr., Cincinnati, Ohio, James R. Adams, Cincinnati, Ohio, on brief; Frost & Jacobs, Cincinnati, Ohio, of counsel, for petitioner.
Allen D. Eisenberg, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., Marsha Swiss, Attorneys, N. L. R. B., Washington, D. C., on brief, for respondent.
Before PHILLIPS, CELEBREZZE and PECK, Circuit Judges.
ORDER.
This case is before the Court upon the petition of J. C. Penney Co., Inc., to review an order of the National Labor Relations Board and upon the cross-petition of the Board to enforce the order. The decision and order of the Board are reported at 162 N.L.R.B. No. 144. The intervenor has filed a brief urging enforcement.
The Court holds that the findings of fact of the Board are supported by substantial evidence on the record considered as a whole.
It is ordered that the order of the Board be and hereby is enforced.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_constit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Bryce BEATTIE, Plaintiff, Appellant, v. Frances W. ROBERTS et al., Defendants, Appellees.
No. 7695.
United States Court of Appeals, First Circuit.
Jan. 6, 1971.
Charles P. Barnes II, Portland, Me., with whom James R. Flaker and Linnell, Perkins, Thompson, Hinckley & Thaxter, Portland, Me., were on brief, for plaintiff, appellant.
Barnett I. Shur, Portland, Me., with whom Wilson, Steinfeld, Mui’rell & Lane, Henry Steinfeld, Charles A. Lane, Bernstein, Shur, Sawyer & Nelson, Gregory A. Tselikis, and George M. Shur, Portland, Me., were on brief, for defendants, appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
This case concerns the procedural rights of tenured public school teachers whose employment contracts are not renewed. Plaintiff, a tenured teacher, taught for five years in the Windham, Maine, school system. On November 18, 1969, the Superintending School Committee voted not to renew his contract. The Superintendent of Schools notified plaintiff of the Committee’s decision in a letter dated December 13. Plaintiff requested a list of reasons for the Committee’s action and a hearing before the Committee. In a letter dated December 31, the Superintendent responded, setting a hearing date for January 21, 1970, and the Committee’s counsel furnished a list of reasons on January 14.
On January 21 the Committee met in executive session for the purpose of conducting the requested hearing. Both the Committee and plaintiff were represented by counsel; witnesses were present; and a stenographer recorded the proceedings. Plaintiff’s counsel raised several procedural objections. He protested because the hearing was not public, because the witnesses were sequestered, and because he was denied permission to cross-examine members of the Committee. The Committee refused to sustain any of these objections, and plaintiff declined to participate further in the proceedings. The merits of the list of reasons were never reached; the Committee’s initial decision hot to reemploy plaintiff remained in effect. Plaintiff brings this action, under 42 U.S.C. § 1983, against the Superintendent and the members of the School Committee alleging that he was denied due process. Summary judgment was entered by the district court after a finding that the Committee had afforded plaintiff procedural due process and that plaintiff had failed to exhaust his administrative remedies. From that decision, plaintiff appeals.
Initially, we are confronted with the question of exhaustion of administrative remedies: can plaintiff bring this action, having refused to participate in the January 21 hearing? This court has recently indicated that plaintiffs who bring § 1983 actions must normally exhaust available administrative remedies. Dunham v. Crosby, 435 F.2d 1177, n. 2 (1st Cir. 1970); Drown v. Portsmouth School District, 435 F.2d 1182, n. 10 (1st Cir. 1970). We require exhaustion, in part, because we hesitate to hold members of school committees liable for tentative dismissal decisions when they are denied the opportunity to view the issue in the light of the facts and argument which the affected teachers might introduce in a formal hearing. Plaintiff argues, however, that the procedure followed by the Committee in considering his case was not the procedure required by state statute. Having recently held that § 1983 defendants who short circuit a plaintiff’s statutory procedural rights cannot assert the defense of failure to exhaust administrative remedies, Dunham v. Crosby, supra, we must consider plaintiff’s statutory argument.
A tenured teacher’s procedural rights are set forth in 20 Me.Rev.Stat. Ann. § 161(5):
“After a probationary period of 3 years, any teacher, who receives notice in accordance with this section [i. e., at least 6 months before the terminal date of the contract] that his contract is not going to be renewed, may during the 15 days following such notification request a hearing with the school committee or governing board. He may request reasons. The hearing shall be private except by mutual consent and except that either or both parties may be represented by counsel. Such hearing must be granted within 30 days of the receipt of the teacher’s request.”
Plaintiff presently asserts that the Committee violated this procedure in two ways. First, he reads the statute to require the Superintendent to notify a teacher before he recommends to the Committee that the teacher’s contract not be renewed. According to plaintiff’s theory, the teacher would then be afforded the opportunity to request the Superintendent’s reasons for so recommending and a hearing before the entire Committee. If he requested such a hearing, the Committee would initially consider the issue of his non-renewal at the date of the hearing; presumably it would be improper for the Committee to consider dismissing a teacher even preliminarily if the teacher were not present.
We see no basis in the above statute for plaintiff’s interpretation. Under the statute, a teacher is entitled to notice “that his contract is not going to be renewed * * * ”, not notice that the Superintendent has recommended non-renewal. The language contemplates action by the entire Committee before the teacher . is notified. Moreover, plaintiff’s interpretation assumes that there is no occasion for the Committee itself to initiate a dismissal, yet the Committee is expressly granted the power to initiate a dismissal under the Maine statute. 20 Me.Rev.Stat.Ann. § 473(4).
Plaintiff says, secondly, that he was not given an adequate statement of the Committee’s reasons as required by the statute. He protests that the list of reasons came from the Committee’s attorney and not from the Committee. Plaintiff’s claim that the Committee must furnish its reasons before it holds a hearing is inconsistent with the interpretation of the statute urged in his first argument. The Committee could not furnish its reasons before the hearing unless it had previously considered the matter. The statute says only that the teacher has the right to “reasons”, but we assume the requirement is designed primarily to assist the teacher in preparing for the hearing before the Committee. In this case, the Committee’s attorney submitted to plaintiff a detailed list of 17 incidents which underlay the Committee’s November 18 action. The same attorney instructed the members of the Committee at the January 21 hearing that they were to consider only those reasons on the list. Plaintiff was clearly put on notice of the charges against him. Although the Committee preferred to characterize the list as a list of unproven charges rather than reasons, that fact did not prejudice plaintiff in any way; indeed, regarding the list as charges to be proven instead of reasons to be rebutted may have eased plaintiff’s burden of proof and should have eased his mind of the matter initially discussed, namely, that the Committee had prejudged its case.
Nor are we able to attach material significance to the fact that two of the events included in the list of reasons occurred after the November 18 meeting when the Committee voted to dismiss plaintiff. We see no reason why the Committee should have ignored incidents occurring after November 18 as long as plaintiff was put on notice before the January 21 hearing of all such events the Committee would consider. The Committee could have considered those incidents, after November 18, which indicated a continuing course of improper conduct.
In fact, the Committee may have afforded plaintiff more procedural protection than he was entitled to under the statute. For example, a stenographic record of the January 21 hearing was kept. Under these circumstances, we see no justification for plaintiff's refusal to follow the proceedings through to the end.
Alternatively, plaintiff claims that the procedure was constitutionally objectionable. He argues that due process requires a completely neutral decision-maker at the hearing and that the Committee, having already made an initial decision not to renew plaintiff’s contract, was not impartial. This contention is raised for the first time on appeal. At no point before or during the aborted hearing before the Committee did plaintiff suggest that it was constitutionally incompetent. His sole efforts were to achieve a public hearing, the non-sequestration of witnesses, and cross-examination ■ of Committee members. The complaint similarly addressed alleged procedural deficiencies, not only excluding any complaint as to the incompetence of the Committee, but, as in the instance of charging its refusal to conduct a public hearing, at least in substantial part inconsistent with any claim of incompeteney. Of even greater pertinence is the fact that at no point does the record show that this matter was argued or even alluded to before the district court. After full oral argument was had and after the court read the transcript of the Committee hearing, the court accompanied its bench ruling on defendants’ motion to dismiss with a summary of plaintiff’s contentions — the three we have noted above — and the applicable law. On concluding, the court inquired of counsel if there were any misstatements. Plaintiff’s counsel then called the court’s attention to its omission of a fourth contention: that the Committee had refused to state whether it adopted any or all of the reasons contained in the January 14 letter of the Committee’s counsel. The court responded and the hearing concluded.
Notwithstanding the obvious inappropriateness of considering an issue neither pleaded nor argued below, which was never called to the district court’s attention, see, e. g., Hap Corp. v. Heyman Mfg. Co., 361 F.2d 329, 331 n. 3 (1st Cir. 1966), we might on rare occasion consider it if the facts pleaded, proved, or sworn to clearly pointed to a blatant and clear deprivation of constitutional rights. This, however, is not such a ease. Such law as exists on the constitutional requirement and definition of an “impartial tribunal” in cases of teacher dismissals is varied and murky. The policy implications are vast.
We have recently recognized that a determination of what procedures afford dismissed teachers due process requires a complex balancing of interests. Drown v. Portsmouth School District, 435 F.2d 1182 (1st Cir. 1970). In Drown we considered the dismissal of a nontenured teacher, but we have not yet confronted a case involving a tenured teacher. There is some authority for plaintiff’s proposition, Pickering v. Board of Education, 391 U.S. 563, 578 n. 2, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (dictum), but we note that no court has required a school system to create the procedure plaintiff seeks.
We see serious problems with this procedure because it would either prevent a Committee from initiating a dismissal or permit it to initiate a dismissal but then require another body of neutral outsiders to review personnel decisions that are properly the responsibility of the Committee. See Drown, supra at 1187. A requirement that the Superintendent serve as prosecutor and bring a proposed dismissal before the Committee for the first time in an adversary proceeding is inconsistent with the Maine statute authorizing the Committee to initiate dismissals. 20 Me.Rev.Stat.Ann. § 473(4). There would still be no guarantee that the Committee would not already have learned of the case in carrying out its duties. The separation of function might well be only facial and insubstantial. There would also be a greater chance of an unwise initial decision to dismiss because only one man, as opposed to the entire School Committee, would have been involved. If we required the state or municipalities to create neutral bodies to which the Committee’s decision to dismiss could be appealed, we would be engrafting into educational administration an appellate layer of enormous complexity, and might well exceed the boundaries of our judicial authority and trespass into legislative territory.
Furthermore, plaintiff’s dual failures to exhaust his administrative remedies and to present the issue to the district court have foreclosed any analysis of the workings of the present Maine procedures, an exploration we would deem essential to any sensible balancing of the interests of tenured teachers and school committees.
Affirmed.
There is, however, some case law to the effect that due process requires an impartial tribunal. E. g., Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir. 1970) ; Wasson v. Trowbridge, 382 F.2d 807, 813 (2d Cir. 1967) ; Esteban v. Central Missouri State College, 277 F.Supp. 649, 651 (W.D.Mo.1967). Some of these cases concern the expulsion of college students for disciplinary reasons where the interests to be balanced are different — perhaps materially different — from this case. E. g., Wasson, supra; Esteban, supra. On the other hand, some cases concerning the procedural rights of dismissed teachers are silent on the nature of the tribunal. E. g., Roth v. Board of Regents, 310 F.Supp. 972 (W.D.Wisc. 1970) ; Lucia v. Duggan, 303 F.Supp. 112 (D.Mass.1969) (both cited with approval by plaintiff). In none of these cases is there any discussion of what is meant by an “impartial tribunal”. Must an impartial tribunal have had no previous contact with the case, as plaintiff urges, or is a tribunal impartial if none of its members are personally interested in the outcome, of. Pangburn v. C.A.B., 311 F.2d 349, 356-358 (1st Cir. 1962)? See generally Wright, The Constitution on the Campus, 22 Vanderbilt L.Rev. 1027, 1080-81 (1969).
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
William H. HAGGARD, Petitioner-Appellant, v. STATE OF TENNESSEE and Honorable Joseph D. Duncan, Judge, Knox County Criminal Court, Knoxville, Tennessee, Respondents-Appellees.
No. 19487.
United States Court of Appeals Sixth Circuit.
Feb. 10, 1970.
William H. Haggard, pro se.
Elmer D. Davies, Jr., Asst. Atty. Gen., State of Tenn., Nashville, Tenn., on brief, for appellees, David M. Pack, Atty. Gen., and Reporter, State of Tenn., of counsel.
Before WEICK, Circuit Judge, and McALLISTER and O’SULLIVAN, Senior Circuit Judges.
WEICK, Circuit Judge.
Appellant, an inmate of the Tennessee State Penitentiary in Nashville, Tennessee, appeals from an order entered by the District Court denying his petition for a writ of mandamus. The petition sought an order of the District Court commanding a state criminal court judge to furnish him with copies of “court records, legal documents, etc.” pertaining to one of his convictions which formed the basis for his conviction as an habitual criminal.
In 1951, appellant was convicted in the Criminal Court of Knox County, Tennessee, of the crime of burglary, and of being an habitual criminal. He was sentenced to life imprisonment. The Supreme Court of Tennessee affirmed his conviction and sentence.
Appellant asserts that one of the three prior state court convictions used to enhance his punishment is void because he was an indigent and did not have the assistance of counsel. He relies on Bur-gett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Appellant’s contention is that he needs the state court records to enable him to prepare a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
The writ of mandamus as such has been abolished by Rule 81(b), Fed.R.Civ.P. However, under 28 U.S.C. § 1651 (All Writs Statute) federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions, including writs in the nature of mandamus. Findley v. Chandler, 377 F.2d 548 (9th Cir.1967); Booker v. Arkansas, 380 F.2d 240 (8th Cir.1967); Youngblood v. United States, 141 F.2d 912 (6th Cir.1944); Newark Morning Ledger Co. v. Republican Co., 188 F.Supp. 813 (D.Mass.1960). See 7 Moore’s Federal Practice § 81.07.
Such relief may be granted only in instances where, before adoption of Rule 81(b), the remedy of mandamus would have been available. Petrowski v. Nutt, 161 F.2d 938 (9th Cir.1947), cert. denied, 333 U.S. 842, 68 S.Ct. 659, 92 L.Ed. 1126 (1948); Newark Morning Ledger Co. v. Republican Co., supra; Deglau v. Franke, 184 F.Supp. 225 (D.R.I.1960).
It is settled that a federal court has no general jurisdiction to issue writs of mandamus where that is the only relief sought. In the absence of special statutory authority it can issue writs of mandamus only as ancillary to and in aid of jurisdiction otherwise vested in it. Hertz v. Record Publishing Co., 219 F.2d 397 (3d Cir.1955), cert. denied, 349 U.S. 912, 75 S.Ct. 601, 99 L.Ed. 1247 (1955).
In any event, federal courts have no authority to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties. Clark v. Washington, 366 F.2d 678 (9th Cir.1966); Campbell v. Washington State Bar Ass’n, 263 F.Supp. 991 (W.D. Wash.1967).
If we treat this action for mandamus as one for habeas corpus, Ray-born v. Jones, 282 F.2d 410 (6th Cir. 1960), we are met with the statutory condition that a person in custody pursuant to a judgment of a state court must first exhaust the remedies available to him in the courts of the state before resorting to the federal courts for relief. 28 U.S.C. § 2254.
In appellant’s petition for a writ of mandamus he admits that he has presently pending in an appellate court in Tennessee a petition for post-conviction relief. It involves the same issue presented here, i. e., that one of his prior convictions which formed the basis for his conviction as an habitual criminal, is void. In that action the court records, which he seeks here, were available to him under the provisions of Section 40-3813 of the Tennessee Code.
Until appellant has exhausted his state remedies, the federal courts are without authority to grant relief to him in a habeas corpus proceeding. Rayborn v. Jones, supra.
The judgment of the District Court denying the petition for a writ of mandamus is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION, Defendant-Appellant, v. STANDARD SHIPBUILDING CORPORATION, Albert Conway, William A. Young, and Alfred A. Stein, as Receivers of the Property of Defendant Standard Shipbuilding Corporation, Defendants-Appellees, and Shooters Island Shipyard Company, Complainant-Appellee.
(Circuit Court of Appeals, Third Circuit.
February 27, 1925.
Rehearing Denied April 7, 1925.)
No. 3201.
Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.
Walter G. Winne, U. S. Atty., of Hackensack, N. J. (Chauncey G. Parker and John, M. Emery, both of Newark, N. J., of counsel), for appellant.
William St. John Tozer and White & Case, all of New York City (Joseph M. Hartfield andl Jeremiah M. Evarts, both of New York City, of counsel), for Shooters Island Co.
Conover English, of Newark, N. J., for Standard Co.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
, The main question in this case concerns the priority of liens of two mortgages given by the Standard Shipbuilding Corporation, — one to Shooters Island Shipyard Company covering after-acquired property and the other to the United States Shipping Board Emergency Fleet Corporation covering the same property. This question is one of law and its solution depends on other questions of law, — whether the mortgage to the Shipping Board, the second in point of time, is a purchase money mortgage or is based on an equitable lien. These questions in turn rest on questions of fact to be decided according as the evidence proves or does not prove that certain large advances of money made by the Fleet Corporation to the Standard Shipbuilding Corporation in the early period of the war were made under an agreement between them that the advances should be secured by a first mortgage and, that pursuant to this agreement negotiations were continuously conducted until finally the mortgage in question was given the Shipping Board for that purpose. The District Court found for the Shipping Board and awarded priority of lien to its mortgage. On appeal this court thought differently and, on an opinion reported in 293 F. 706, was about to issue its mandate reversing the decree below when the Shipping Board appeared and represented that it had newly discovered evidence which, if heard, would compel a "different judgment. Hesitatingly this court remanded the case for further proofs. On the remission the newly-acquired evidence was taken. The learned trial judge was of opinion that it did not alter the judgment of this court and entered a decree accordingly. The ease is here on the Shipping Board’s appeal. We shall not review the testimony, nor shall we do .more than say that the new evidence, supplementing the old, fills several gaps which theretofore existed in the record and, quite contrary to what was expected, ■ fortifies the previous judgment of this court by establishing that the mortgage was not given the Shipping Board in pursuance of an agreement to secure the original money advances but to secure further advances with which to finish uncompleted work. The decree below is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America, Appellee, v. David Henry HOLMES, Appellant.
No. 352, Docket 32788.
United States Court of Appeals Second Circuit.
Argued Dec. 10, 1969.
Decided Jan. 12, 1970.
Stewart H. Jones, U. S. Atty., Hartford, Conn., for appellee.
Karl Fleischmann, Hartford, Conn. (Satter & Fleischmann, Hartford, Conn., on the brief), for appellant.
Before MOORE and KAUFMAN, Circuit Judges, and RYAN, District Judge.
Of the District of Montana, sitting by designation.
IRVING R. KAUFMAN, Circuit Judge:
The question before us on this appeal is whether a Selective Service registrant who orally asserts conscientious objections to military service at the induction station is entitled to have this claim considered and evaluated by the Selective Service System.
David Holmes registered with Selective Service Local Board No. 1 in Hartford, Connecticut on October 5, 1961. For the next several years, while an undergraduate at Trinity College in Hartford and a graduate student at Trinity and the University of Michigan, he had a student deferment (class II-S). On October 10, 1967, shortly after Holmes had notified his local board that he was no longer a student at the University of Michigan, he was placed in class I-A. Two months later he accepted a position as an assistant instructor in history at Eastern Connecticut State College. On this ground, he requested, and was granted, an occupational deferment (class II-A). This deferment expired April 1, 1968, but Holmes was assured by the board that he would be allowed to complete the spring semester. Since he planned to continue teaching after the end of this semester, Holmes considered this assurance inadequate and, shortly after April 1, he began to devote considerable effort to securing another occupational deferment. These efforts were not to cease until the following December 3, the date on which he was ultimately required to report for induction. During the first part of this period, the summer of 1968, Holmes’s teaching plans for September 1968 were in flux. In the end, he decided to remain at Eastern Connecticut State College where he secured a position as a part-time instructor teaching two history courses in the evening session/ The local board determined that this position did not merit an occupational deferment, and, on October 10, the state Appeal Board affirmed this decision. In early November Holmes twice requested his board to reopen his classification, first on the ground that he was teaching three rather than two courses and, second, because he would become a full-time teacher in the second semester. The board denied both requests and, on November 15, ordered him to report for induction on December 3, 1968. Immediately after the issuance of this induction order, the President of the College requested that Holmes’s induction be postponed until the end of the academic year, June 1969, but the request was denied on November 27. Two days after this denial, the College President again attempted to have Holmes’s induction deferred, this time for a shorter period expiring February 1, 1969.
As required by the induction order, Holmes reported to the induction station on the morning of December 3. At that time he was without knowledge of any action state Selective Service headquarters had taken upon the President’s second request. He brought this matter to the attention of a Lt. Lukoff, an officer at the induction station, who, after telephoning state headquarters, advised Holmes that the request had been de- ' nied.
During his processing at the induction station, Holmes declined to sign a form oath swearing to comply with the requirements for serving on active duty and fulfilling subsequent reserve commitments. When asked by the processing officer why he was following this course of action, Holmes responded that he intended to refuse induction “on grounds of conscience.” Lt. Lukoff was then notified of this intent, but precisely what transpired in the resulting conversations between Lukoff and Holmes is somewhat murky.
Holmes testified he clearly informed Lukoff that his. refusal to submit to induction was based “on grounds of conscience” but that he was not given an opportunity to reduce his views to writing ; Lukoff testified that, although Holmes might have employed the word “conscience,” he recalled Holmes expressing only generalized statements of moral opposition and disillusionment with the system. Lukoff also stated that although his recollection was somewhat hazy, he assumed Holmes had been asked whether he wished to make a written or oral statement, an opportunity customarily given to all who had expressed an intention to refuse induction.
It is undisputed that Holmes was given three opportunities to take the oath of induction and that each time he refused to do so. Thereafter, the induction station notified the local board merely that Holmes had been found fully acceptable and had refused induction. The local board thereupon reported Holmes to the United States Attorney as a delinquent. Accordingly, there was no consideration within the Selective Service System of the claim for conscientious objector status which Holmes insisted he had made at the induction station.
On December 20, 1968 Holmes was indicted on charges of refusing to submit to induction. Three months after indictment and one week before his trial, he notified his local board for the first time that he was a conscientious objector and that he had presented this claim at the induction station. His conviction on the charges set forth in the indictment followed a trial before Judge Blumenfeld, sitting without a jury. It rested on the district judge’s conclusions that a Selective Service registrant must lodge a written request for reclassification if he wishes his local board to take any action and that an oral request will avail him nothing, even if meritorious.
In view of this disposition, the sole question before us on this appeal is whether a claim for classification as a conscientious objector presented orally at the induction station merits consideration and evaluation by the Selective Service System. Although we have not previously been presented with this precise pattern of facts, we do not write on a tabula rasa. We have already held that despite the inconvenience occasioned by the reopening of a registrant’s classification after he has been called for induction, a registrant whose conscientious objections crystallize only after the issurance of an induction order and who presents his request for classification as a conscientious objector at the earliest possible time, is entitled to have his classification reopened and considered anew. United States v. Gearey, 368 F.2d 144 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967). Moreover, we have decided that it matters not that a registrant mistakenly presented his request to the officials at the induction station rather than to the local board. “[A] legally untutored registrant should [not] be penalized for his failure to distinguish between * * * two agencies,” which form, part of a single continuing process. United States v. Stafford, 389 F.2d 215 (2d Cir. 1968). Stafford requires us therefore to view Holmes's statement at the induction station as having been addressed to an appropriate body.
The sole distinction we can perceive between the instant case and Stafford is that Stafford presented his claim in writing while Holmes allegedly made his orally. The district court, however, considered this distinction crucial, basing its decision on the requirements of the Selective Service regulation governing the reopening of classifications, 32 C.F.R. § 1625.2. This regulation states that “[t]he local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant” or (b) “upon its own motion if such action is based upon facts not considered when the registrant was classified,” and if such facts have been brought to the attention of a member of the board, reduced to writing, and placed in the registrant’s file. See 32 C.F.R. § 1623.1(b). We read this regulation to provide that a local board may not reopen a registrant’s classification solely on the basis of his oral statements. We do not read it, however, as authorization to totally ignore a registrant’s oral statements. In reaching the conclusion that a local board or induction personnel may not totally ignore oral requests for reclassification, we are mindful of the Supreme Court’s admonition that “[Registrants are not to be treated as though they were engaged in formal litigation assisted by counsel.” Simmons v. United States, 348 U.S. 397, 404 n. 5, 75 S.Ct. 397, 401, 99 L.Ed. 453 (1955). This caveat has particular vitality in conscientious objector cases. For example, in our decisions in Gearey and Stafford we gave recognition to this maxim by instructing that the Selective Service regulation which provides that only in extraordinary circumstances shall a registrant’s classification be reopened after issuance of an induction order, see, 32 C.F.R. § 1625.2, should not be applied to foreclose all conscientious objector claims presented after an induction order is issued. The rationale for these decisions was that imminence of induction could cause previously inchoate feelings suddenly to crystallize into firm and sincere conscientious objections to military service.
The facts before us indicate that Holmes might well have gone to the induction station with the belief that his induction would be deferred because of the request of the President of Eastern Connecticut State College. He was not faced with the realization that he was about to be inducted until he learned of the denial of the President’s request from Lt. Lukoff — some time after he arrived at the induction station. In the light of our decisions in Gearey and Stafford, it would be somewhat anomalous for us, considering the facts before us, to require a registrant on all occasions either to prepare a formal written statement of his views in advance of his induction date or to forfeit his claim of conscientious objector status.
Accordingly, we hold that if Holmes did make an oral claim at the induction station for classification as a conscientious objector, the officers at the station should have brought this claim to the attention of the local board. See United States v. Stafford, 389 F.2d 215, 219 (2d Cir. 1968). In any event, it would have been quite simple to have explained to Holmes the necessity for a full written statement and then to have given him an opportunity to make it or to have reduced to writing in his behalf —on a form readily available — the oral statement he wished to make. Since, as we have stated, local boards are already required to take cognizance of late-maturing conscientious objector claims, see United States v. Stafford, supra, and in light of Lt. Lukoff’s testimony that it is already the policy of induction stations to afford an opportunity to make a written or oral statement to all prospective inductees who signify an intent to refuse induction, we see little merit to the argument that this decision will place extraordinary burdens on the Selective Service System.
Because the district court failed to resolve the conflicting versions of the exchanges between Holmes and Lukoff, we are in no position to determine whether Holmes did in fact present an oral claim for conscientious objector status. We remand, therefore, for the district court to determine whether Lt. Lukoff, or any other officer at the induction station, could reasonably have been expected to construe Holmes’s statements as expressions of conscientious objections to military service.
Even if any one of the officers could have been expected to have interpreted the statements as a request for classification as a conscientious objector, we see no reason to dismiss the indictment. United States v. Gearey, supra. In that event, the district judge should require the local board to determine at what point Holmes’s alleged convictions matured and, if they matured after issuance of the induction order, whether he is entitled to classification as a conscientious objector. If the board should find either that Holmes’s beliefs crystallized prior to issuance of the induction order or that his beliefs are not sincere and in conformity with the statutory standards, and if the district court should determine that this finding is supported by the necessary basis in fact, his conviction may stand. United .States v. Gearey, supra,; United States v. Stafford, supra. Only if the district court finds that Holmes made a claim for conscientious objector status prior to refusing induction and if the board decides both that his convictions matured after the issuance of the induction order and that their content and the sincerity with which they are held entitles Holmes to classification as a conscientious objector must the indictment be dismissed.
Remanded for proceedings in accordance with this opinion.
. This uncertainty stems irom the failure of the district court to resolve conflicts in the testimony. The court considered this unnecessary because under its view of the law, Holmes could not prevail even if all of his testimony were accepted.
. His conscientious objection was set forth in a letter to his local board. The able district judge quite properly gave no weight to this letter. Events which occur after a refusal to submit to induction are generally not relevant to whether there was a duty to submit. Palmer v. United States, 401 F.2d 226 (9th Cir. 1968).
. The means by which these new facts are generally reduced to writing is Selective Service Form 119 (Report of Oral Information). Whenever a member or employee of a Selective Service Board receives oral information from the registrant or some other individual as a result of a personal visit or telephone call, he notes the substance of this information on Form 119. The information may then be considered by the board in determing the registrant’s classification.
. For a description of the form which could be utilized by the officials at the induction station, see note 3 supra.
. As we stated in Gearey, the only objection to this disposition is the argument that, if his conscientious objector claim had been considered and rejected on the merits by his local board, Holmes might have submitted to induction. However, Holmes, as did Gearey, testified that under no circumstances could he or would he be inducted into the armed services.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
HOWARD v. SWAGART et al.
No. 9409.
United States Court of Appeals District of Columbia.
Argued March 12, 3947.
Decided May 5, 1947.
Mr. Earl H. Davis and Mr. A. Arvin. Lynn, both of Washington, D. C., with whom Mr. Martin Mendelsohn, of Washington, D. G, was on the brief, for appellant.
Mr. Austin F. Canfield, of Washington, D. G, with whom Mr. Julian H. Reis, of Washington, D. G, was on the brief, for appellees.
Before GRONER, Chief Justice, and EDGERTON and CLARK, Associate Justices.
CLARK, Associate Justice.
This is an appeal from the action of the District Court of the United States for the District of Columbia entering judgment for appellees, defendants below, and setting aside a verdict of the jury in favor of appellant, plaintiff below, in accordance with Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Appellant was injured when she was struck by an automobile driven by Elbert W. Cherry, who was neither its owner nor its authorized user. It is necessary to record a detailed account of the facts leading up to Cherry’s securing possession of the car in order to present a complete picture of the case essential to a proper disposition of the appeal, and in order to portray deadly the legal relationship of the several parties involved.
In the afternoon of Thursday, December 7, 1944, Lawrence A. Baker, the owner of a certain maroon Lincoln Zephyr sedan, parked his automobile at the S & H Parking Center located in the 1500 block of Eye Street, Northwest. He had a monthly storage contract with the garage which gave him the privilege of taking his car in and out as he wished, in contrast to the daily customer who paid a per diem rate and was given a claim check on each occasion his car was parked. On this particular instance, Baker instructed the garage employee present to close the car windows because he was going away for a day or two. As required by the garage, he left the key in the ignition switch, but took all other keys.
Customers of the Parking Center, daily and monthly, are not permitted to park the car themselves, but simply drive into the garage through its single entrance, leaving the car for one of the garage’s employees, referred to as hustlers or parking attendants, to park in the place assigned to it on one of the various floors. When a customer calls for his car, he is required to wait on the ground floor until a hustler brings the car down to the garage’s single exit. Both the entrance and the exit are on Eye Street, the entrance at the east end of the garage and the exit at the west end. The garage manager’s office is beside the entrance and the cashier’s office is beside the exit.
During the period here involved, the garage was operated on a 24 hour basis. Between 8:00 o’clock a. m. and 6:00 o’clock p. m., it was in charge of Mr. Wine, the day manager. Mr. Smith, the night manager, was in control the remaining hours. Wine generally had seven or eight employees on duty with him, including parking attendants and car washers. One such car washer was Elbert W. Cherry. Before going off duty, Wine would have the cars belonging to daily customers brought down from the upper floors to the first floor to facilitate the work of the night crew. The monthly cars, which had designated places mostly on the fourth and fifth floors, were brought down only when the owners came for them. Smith had only two employees stay with him part time, a parking attendant named Wyatt Clinton, who came on duty shortly after 5:00 o’clock p. m., and remained until 10 o’clock p. m., and a cashier, who also remained on duty until 10 :00 o’clock p. m.
Clinton, who had been employed by the Parking Center for approximately two months prior to December 7, 1944, worked for the War Department during the day and performed his part time duties at the garage during the evening. Cherry had been employed by the garage two or three weeks before December 7, 1944. He had been sent there by the United States Employment service. At the time he was interviewed for the position by Wine, who at that time was in charge of hiring, firing and supervising employees at the garage, he had with him the standard referral card required by government regulations issued under the Presidential Proclamation governing employment stabilization. He was employed as a day time car washer with the understanding that he would sometimes be called upon to work overtime either to wash cars or to act as a parking attendant. Wine testified that at the time Cherry was hired they accepted all employees referred to them by the United States Employment Service without making any independent investigation as to their background and no independent investigation was made concerning Cherry. He further testified that if he had known of Cherry’s past criminal record he would not have accepted him as an employee.
On the evening of December 7, 1944, Cherry was asked to work overtime washing cars. The wash rack was located on the second floor directly to the rear of the garage exit. During the course of the evening, Smith, the night manager, saw the Baker car near the wash rack. Cherry testified that while he did not see the car there, he heard Smith upbraid Clinton for bringing the car down from its usual spot on the fourth floor, and order him to return it to its proper place. Smith testified that he never followed up to see if his order was carried out.
On this same evening, Cherry and Clinton finished work at 10:00 o’clock p. m., and checked out together. Cherry met his wife and baby who were waiting for him outside the garage and Clinton offered to drive them home. Cherry expressed some doubt as to Clinton’s having a car but Clinton assured him that he had one parked at 16th and Eye Streets. They walked to that intersection where a maroon Lincoln Zephyr sedan was parked. Clinton informed Cherry that he had purchased it from his winnings in the numbers game. The pair took Cherry’s wife and baby home and then returned to Clinton’s home where they had a few drinks after which Cherry walked to his home.
The next morning, Friday December 8, 1944, Cherry, while walking to his work, passed Clinton’s home where the latter was sitting on the steps. The car was parked nearby. Cherry asked Clinton to lend him the car and Clinton agreed. Cherry did not take the car then, but proceeded on to work where he was told by Wine that there was no work for him that day and that he could check out. He then returned for the car, picked up two girls on Ninth Street and while he was driving them about struck appellant with resulting injury. After taking appellant to the hospital, Cherry called Clinton and it was then, according to his testimony, that he first found out the car had been stolen by Clinton.
Appellant named as defendants in her action the present appellees, Swagart and Hartig, who own and operate the S & H Parking Center, and Baker, the owner of the car. The court directed a verdict in favor of Baker at the close of appellant’s evidence and no appeal has been taken as to him. Appellees moved for a directed verdict after appellant’s opening statement, at the close of appellant’s evidence and at the conclusion of all the evidence. These motions were all denied. The jury returned a verdict for appellant for $7,500.00 and judgment was entered thereon. Ap-pellees moved for judgment notwithstanding the verdict and in the alternative, for a new trial. The court overruled the latter motion while granting the motion for judgment notwithstanding the verdict, and ordered that judgment be entered in favor of appellees. This appeal followed.
Giving full effect to the principles established by decisions of the Supreme Court and of this court for reviewing the action of the trial court in granting appellees’ motion for judgment non obstante vere-dicto, we proceed to a determination of whether, as a matter of law, the evidence presented by appellant failed to make a case and, therefore, a verdict in appellees’ favor should have been directed.
Appellant’s position is that under the evidence the jury was warranted in finding that appellees were negligent in three respects, first, in failing to remove the ignition key from the Baker car; second in employing Elbert W. Cherry without investigating him; and third, in failing to provide and maintain adequate supervision and control over the cars left in their custody and control. Appellant further asserts that the jury was warranted in finding that appellees’ negligence in any or all of the above respects proximately resulted in the removal of the Baker car from the premises and the injury to appellant.
Appellant relies on two decisions of this court to support her right to .recover against appellees in this action. In the first of these cases, Ross v. Hartman, we held that an owner of a vehicle was liable to a plaintiff who was injured when struck by the vehicle driven by an intermeddler who wrongfully drove it from a public alley where it had been left by the owner’s agent, unattended, with the key in the ignition switch, in violation of a traffic regulation. In the second of these cases, Schaff v. Claxton, we extended this liability to the owner of a vehicle where his employee left the vehicle unlocked with the key in the ignition in a private parking space beside a restaurant not a “ ‘public space’ within the meaning of the ordinance” requiring vehicles to be locked, and a third party in attempting to move the vehicle injured the plaintiff.
We do not think there is any justification to extend the holdings of these decisions to the circumstances of the case at bar. While such an application is ¿'pssible, it is not practicable or justifiable, and would necessitate, and result in, a strained construction of the legal concepts pertaining to negligence and proximate cause. Dealing with the causation aspect first, this court has defined the proximate cause of an injury to be “that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.” S. S. Kresge Co. v. Kenny. The effect of our decisions in the Ross and Schaff cases was that a wilful, malicious and criminal act of an intermeddler was not an “efficient intervening cause” in the circumstances there presented where the action was between the injured party and the owner of the car, and where the owner was held responsible. We are urged, assuming for the moment negligence on the part of appellees, to extend that legal responsibility to a situation where there is added a subsequent intervening cause coming into existence nearly twelve hours after the criminal act which constituted the original intervening cause, and involving not the owner of the vehicle, but his bailee. We feel constrained to oppose such an extension to the law of liability. It cannot fairly be said that this court meant, by the Ross and Schaff decisions, to impose liability on the owner, or here the bailee, of an unlocked car for the negligent action of every person, other than the thief, driving it subsequent to the theft. In the case at bar, the injury to appellant, coming as it did after the car had remained at rest for nearly twelve hours after the original intervening cause and had been set in motion only by a subsequent intervening cause, cannot be held to be the “natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Milwaukee & St. Paul R. Co. v. Kellogg. There was in this case not a scintilla of evidence to indicate a “succession of events so connected as to make an entire whole, without any new intervening cause.” Munsey v. Webb. We hold that the circumstances existing here are outside the realm of those from which a jury could reasonably find that the negligence of appellees was the proximate cause of appellant’s injury, and the trial court was correct, having submitted the cause to the jury, in setting aside a verdict in appellant’s favor and entering judgment for ap-pellees.
In this disposition of the case, it is not necessary for us to discuss the three acts which appellant contends constituted negligent action on the part of appellees, but because of the character of the proceedings in the trial below resulting in the setting aside of a jury verdict, and the views expressed by the trial court concerning this aspect of the case, we think it desirable to record our own views on the matter. The trial court stated in his opinion : “My holding is that there isn’t enough evidence in this case to which can be applied the law that would justify holding these garage defendants responsible for the subsequent traffic accident and injury to the plaintiff.” With this we agree. Turning to the specific acts alleged we hold that, in this jurisdiction, leaving a car unlocked in a private parking-lot garage does not constitute negligence. It is common knowledge that the standard custom and practice of private parking-lot garages is to require the leaving of the key in the ignition switch of cars parked on the premises. This is not only for the convenience of the garage attendants in moving the car about to allow the parking and removal of other cars, but for the convenience of the car owner in having the car delivered to him as soon as called for, and for the further protection of the car owner in having his vehicle easily removable by the garage attendants in case of fire or other emergency. Appellant has not offered evidence tending to establish a duty in appellees to exercise a higher degree of care than is required of others in this business. This action is not negligence.
Neither do we think that hiring Cherry as a car washer and part time parking attendant without an independent investigation as to his reliability constitutes negligent action in view of the fact that he was taken upon the recommendation of the United States Employment Service. But to carry this point a step further, in alleging this negligence, appellant ignores her own evidence, presented through her witness, Cherry, that it was Clinton, not Cherry, who stole the car. And there was no evidence offered to show otherwise. Appellant did not make Cherry a party defendant in this action, although he was the driver of the car at the time of the accident, but utilized him as a principal witness on whose testimony she heavily relied for support of her claim against appellees. She did not call him as an unwilling or hostile witness under Rule 43, Federal Rules of Civil Procedure, and the record does not indicate that he was so treated. Now, on 'appeal, rather than vouching for his credibility as she is required to do, appellant attempts to discredit the testimony of her own witness that Clinton stole the car, and shape it into an unwarranted conclusion on the part of the jury that Cherry alone took the car, or assisted Clinton in so doing, thus giving support to her allegation that it was negligence on the part of appellees to hire Cherry without an independent investigation of his past. We think appellant failed to support her contention in this respect.
We further are of the opinion that appellant failed to offer sufficient evidence to support her claim that appellees were negligent in failing to provide and maintain adequate supervision and control over the cars left in their custody. Her evidence established that the Baker car was stolen by Clinton sometime before 10:00 o’clock p. m., when Cherry and Clinton left the garage together and proceeded to 16th and Eye Streets where the car was parked. The car was seen in the vicinity of the wash-rack at the garage at approximately 8:30 o’clock p. m. The evidence further established that during these hours, up to 10:00 o’clock p. m., there were on duty at the garage the night manager, Smith, a parking attendant, and a cashier, who was stationed in an office at the garage’s single exit. Appellant cannot overcome her lack of proof on this allegation by asserting, as she does, that there was no evidence offered to show whether or not the cashier was on duty on the night in question. Obviously, the fact that the Baker car was stolen from the garage alone does not constitute' evidence of lack of control or supervision, and appellant has failed in all other respects to show such.
' Thus, it is our view that as a matter of law appellant failed to present evidence of negligence sufficient to make out a case to go to the jury and a directed verdict in appellees’ favor was warranted. It was accordingly not error for the court, having submitted the cause to the jury, to set aside the resulting verdict in behalf of appellant and enter judgment for appellees notwithstanding the verdict.
Affirmed.
It ivas brought out in the evidence that in September, 1944, Cherry was convicted of embezzlement, given a sentence of from six to eight months and put on probation.
The only testimony as to the events happening between this time and the time of the accident was offered by Cherry who appeared as a witness for appellant. Clinton died before the trial.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 143 F.2d 142; Simmonds v. Capital Transit Co., 79 U.S.App.D.C. 371, 147 F.2d 570.
78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, certiorari denied 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080.
79 U.S.App.D.C. 207, 144 F.2d 532.
66 App.D.C. 274, 86 F.2d 651.
94 U.S. 469, 24 L.Ed. 256.
37 App.D.C. 185, affirmed 231 U.S. 150, 34 S.Ct. 44, 58 L.Ed. 162.
Accordingly, we need not here decide whether the duty, recognized by this court in Medes v. Hornback, 56 App.D.C. 13, 6 F.2d 711, 712, “of one operating a garage in which automobiles are kept in storage for pay to exercise ordinary care by the employment of trustworthy servants” should be extended beyond the bail- or-bailee relationship to the benefit of a third party who is a stranger to the transaction.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_counsel1
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES v. DANG MEW WAN LUM.
No. 8346.
Circuit Court of Appeals, Ninth Circuit.
Feb. 8, 1937.
Ingram M. Stainback, U. S. Atty., J.. Frank McLaughlin, Asst. U. S. Atty., and' Ernest J. Hover, U. S. Department of Labor, Immigration, and Naturalization Service, all of Honolulu, T. IT., and H. IT. McPike, U. S. Atty., of San Francisco, Cal.
Before WILBUR and GARRECHT, Circuit Judges, and NETERER, District Judge.
NETERER, District Judge.
The appellant seeks reversal of the order of naturalization and cancellation of naturalization certificate of appellee.
No brief is filed by the appellee, nor does any one appear on her behalf. It is stated in appellant’s brief that appellee has not employed counsel, although advised to do so.
The petition for naturalization is sufficient, and among other things shows that appellee was born in Honolulu, Hawaii, May 29, 1894, and is of the Chinese race and is married to Lum Chew Hung. She was married May 2, 1910, at Dai Char, Chungshan, China. Her husband was born at Dai Char, Chungshan, China, February 3, 1886. Appellant entered Honolulu, United States, for permanent residence. She has no children. She departed for China from Hawaii May 16, 1907, steamship Siberia. Her last foreign residence was Macao, Chungshan, China. She came to the United States of America from Hongkong, China, and made lawful entry in the United States at ITonolulu, under the name of Dang Mew Wan Lum on October 19, 1934 on the steamship President Hoover. She qualified for citizenship on belief in organized government, disbelief in polygamy or in the practice thereof, and intention to become a citizen of the United States and the renunciation of all foreign allegiance and particularly with China; is able to speak the English language and had filed no former petition.
Motion was made to dismiss the petition for the reason that appellant, being of the Chinese race, is ineligible to naturalization unless she is entitled to admission under section 4 (a), Act of March 3, 1931 (8 U.S.C.A. § 369a).
Having departed from the United States in 1907 and married a Chinese in China May 2, 1910, which marriage endures, and not returning to the Territory of Hawaii and the United States until October 19, 1934, she is not within the amendment of July 2, 1932 (8 U.S.C.A. § 368b).
The Provisional Government obtained in the Hawaiian Islands from January 17, 1893, to July 4, 1894. She was at birth a citizen of the Provisional Government of the Hawaiian Islands. The Republic of ITawaii began July 4, 1894, and continued to August 12, 1898. By article 17 of the Constitution of the Republic of Hawaii she became a citizen of said republic at its inception and so remained during its life (to August 12, 1898). By the Organic Act of April 30, 1900, c. 339, § 4 (31 Stat. 141, 8 U.S.C.A. § 4), she, together with all other citizens of said republic, were naturalized as citizens of the United States, but when she married an alien ineligible to citizenship in 1910 she lost her citizenship.
The Act of March 2, 1907, c. 2534, § 3 (34 Stat. 1228), provides: “Any American woman who marries a foreigner shall take the nationality of her husband.” The Act of Sept. 22, 1922, c. 411 § 7, 42 Stat. 1022, 8 U.S.C.A. § 9 repealing section 3, Act of March 2, 1907, provides that “Such repeal shall not restore citizenship lost under such section.”
The Act of July 3, 1930, c. 835, § 2(a) (46 Stat. 854, 8 U.S.C.A. § 369), provides that a woman having lost her citizenship by marrying an alien eligible to citizenship, if she did not expiate herself by some affirmative act, may be naturalized. The Act of March 3, 1931, c. 442, § 4(a) (46 Stat. 1511, 8 U.S.C.A. § 369a), provides that any woman having lost her citizenship before March 3, 1931, by residence abroad after marriage or by marriage to an alien ineligible to citizenship if she has not acquired other nationality by her affirmative acts, may be naturalized. This section also makes eligible to citizenship a woman who was at birth a citizen of the United States of whatever race. Appellant was not at birth a citizen of the United States. And the further provision (8 U.S.C.A. § 368b) that a woman born in Hawaii prior to June 14, 1900, shall, if residing in the United States on July 2, 1932, be considered a citizen of the United States at birth does not qualify appellant, as she was not residing in the United States on said date.
This act created a right, upon a fixed status, but petitioner is not within the status, since she was not a citizen of the United States at birth, nor was she a resident of the United States July 2, 1932. The high privilege of citizenship is within the exclusive power of Congress to confer, Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255, and the court must strictly construe the acts granting the privilege, U. S. v. Manzi, 276 U.S. 463-467, 48 S.Ct. 328, 329, 72 L.Ed. 654. See, also, In re McIntosh (D.C.) 12 F.Supp. 177.
The order is reversed and the trial court directed to dismiss the petition and enter an order canceling and recalling the certificate of naturalization issued:
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_circuit
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Richard John FREITAS, Sr., Appellant, v. Warden Calvin AUGER; Deputy Director for Institutions Paul Grossheim; Director of Dept. of Corrections Hal Farrier; Correctional Security Manager G.A. Winders; and Adjustment Committee Members Barrens, Bermeyer and Thomas, Appellees.
No. 87-1597.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 1, 1987.
Decided Jan. 26, 1988.
Rehearing Denied March 7, 1988.
Philip Mears, Iowa City, Iowa, (appointed), for appellant.
Layne M. Lindebak, Des Moines, Iowa, for appellees.
Before HEANEY, BOWMAN and WOLLMAN, Circuit Judges.
HEANEY, Circuit Judge.
A prison disciplinary committee at the Iowa State Men’s Reformatory punished Richard J. Freitas for allegedly conspiring with other inmates in planning an escape. Freitas brought an action before a magistrate under 42 U.S.C. § 1983 against various prison and state officials, contending that they had violated his constitutional rights. After a hearing, the magistrate held against Freitas. We affirm.
I. FACTS
Freitas is a prisoner at the Iowa State Men’s Reformatory in Anamosa, Iowa. Gary A. Winders, the Correctional Security Officer placed Freitas in administrative segregation on October 28, 1985. On October 29, Winders told Freitas he was under investigation for conspiring to escape from the Reformatory. Freitas admitted that two other inmates had discussed with him a plan to escape through the “hobbycraft” area of the Reformatory. Freitas, however, denied that he either initiated or furthered these conversations. The State concedes that Freitas did nothing more than participate in these conversations.
On October 31, 1985, Freitas and Winders talked again. Freitas revealed more about the conversations but again denied any involvement in the escape plan. Frei-tas consented to a polygraph examination on certain issues.
On November 5,1985, a polygraph examination was administered. The examiner asked Freitas whether he intended to escape through the hobbycraft area, whether he would kill a guard to further an escape, whether he knew of another prisoner who would kill a guard to further an escape, and whether he knew of any hacksaw blades which might have been smuggled into the reformatory to further an escape. The examiner told Freitas and Winders that Freitas had truthfully answered “no” to each question. He also said that Freitas had no “deliberate conscious plan” to escape through the hobbycraft area.
On November 8, Freitas was charged with a major disciplinary violation of conspiring to escape. Under the Reformatory rules, an inmate can act in complicity to escape “if, with the intent that an offense be committed, [he] commands, induces, procures, or aids another to commit it.” At a hearing on November 12 before the Adjustment Committee (consisting of appellees Brimeyer, Behrends, and Thomas), Freitas denied the charges. Winders offered a memorandum concerning the polygraph results and two confidential statements of informants.
Based on this evidence, the Committee found Freitas guilty of conspiring to escape. The Committee punished Freitas with ten days in solitary confinement and a minimum of thirty days in administrative segregation. He also was removed from the honor roll and lost forty-five days of good time.
On appeal, the warden, Calvin Auger, determined that a new hearing was necessary for submission of the typed results of the polygraph examination. Because of a lengthy delay in the preparation of the typed results — Freitas was in administrative segregation during this time — Freitas decided to proceed with the hearing without the typed results. At the hearing on December 24, 1985, Freitas told the Committee in some detail about the conversations with the other inmates. He reiterated that he had in no way furthered these conversations or conspired to escape.
Winders explained, not under oath, the polygraph results. The Committee concluded that, while Freitas had answered the questions truthfully, the questions did not address whether Freitas acted in complicity with others in planning an escape.
The Committee again found Freitas guilty of the charge and imposed the same punishment as before. The Committee stated that it relied on the confidential information, the fact that Freitas admitted to having the discussions about the escape, and that he admitted to Winders that he would “leave in a minute” if he had the opportunity to escape.
On internal appeal, Warden Auger upheld the decision but reduced the penalty. Paul W. Grossheim, Deputy Director for Institutions of the Department of Corrections, denied the appeal of that decision.
II. ANALYSIS
The fourteenth amendment to the Constitution forbids the State of Iowa from depriving Freitas of his right to liberty, except by due process of law. The deprivation in this case is the punishment imposed by the Committee: the loss of good time, the solitary confinement, administrative segregation, and the removal from the hon- or roll. Because Freitas is a prisoner, however, less procedural due process may be required because of security concerns in penal institutions. See Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974).
Before analyzing Freitas’ constitutional claims, we state that the only tenable ground for the disciplinary action against Freitas is that Freitas assisted, induced, or encouraged others to escape. There is no evidence that Freitas himself intended to escape. Nor can Freitas be disciplined for simply participating in discussions about escape. Clearly, Freitas must have had the intent to further an escape in some manner.
A. Notice
Due process requires prison officials to inform a resident of charges to be brought against him or her and the evidence relied on in bringing those charges. See id. at 563-64, 94 S.Ct. at 2978-79. The adequacy of the notice hinges on whether it allows the inmate to “marshal the facts" and prepare a defense. Id. at 564, 94 S.Ct. at 2978.
The notice in this case stated that Freitas had violated reformatory rules 5, 27 and 41. It also specifically stated:
Conspiring with others to escape: During the last 60 days, Freitas has talked with other inmates in the institution about planning an escape through the hobbycraft/school building. Freitas has informed myself [sic] that even though he was talking with these people, that he was not actually planning on escaping through the hobbycraft area.
In an effort to maintain the peace and tranquility of the institution, confidential names have been left out of this disciplinary report.
Freitas contends that this notice was constitutionally inadequate because it did not specify the dates of the alleged conversations, where they took place, their content or who participated in them. We do not find these omissions to violate the Constitution. The district court did not err in deciding that prison officials were justified in withholding information about confidential informants because of the risk of revealing their identities. Further information, either about the identity of the informants or the substance of what the informants said, may have endangered the informants. See Dawson v. Smith, 719 F.2d 896 (7th Cir.1983), cert. denied, 466 U.S. 929, 104 S.Ct. 1714, 8 L.Ed.2d 186 (1984). Cf. Muhammad v. Butler, 655 F.Supp. 1470, 1472 (D.N.J.1987) (officials’ withholding of confidential information violated due process because prisoner clearly knew identity of confidential informant).
In addition, Freitas admitted to having the three conversations in question. It does not matter that he may have mistakenly assumed that the prison officials were withholding additional evidence to be used against him. The only information withheld concerned the confidential informants. The decision of the Committee ultimately relied solely on the content of those conversations revealed by Freitas, either to the Committee or to Winders, and the confidential reports. The notice informed Freitas that this was the evidence on which the Committee would rely. It therefore was constitutionally adequate.
B. Adequacy of Committee’s Findings and Reasons
The Constitution requires that a written statement be drafted contemporaneously with the disciplinary action which informs an inmate of the evidence and reasons relied upon by the factfinders in reaching their decision. See Brown v. Frey, 807 F.2d 1407, 1411-12 (8th Cir.1986). Freitas contends that the factual findings of and the reasons given by the Committee were inadequate.
In reaching its decision, the Committee relied on Freitas’ admission to having had conversations about escaping on three separate occasions, on Freitas’ indication he would “leave in a minute,” if given the opportunity, and on confidential statements of informants. The Committee explicitly noted that it did not rely on the polygraph results in reaching its decision.
While these findings and reasons may not be extensive, the record does not indicate that the Committee relied on any other findings or reasons in reaching its decision. In addition, the Committee explicitly noted both its reliance on confidential information and that this information had been deleted for security reasons. See Rinehart v. Brewer, 483 F.Supp. 165, 170 (S.D.Ia.1980) (Confidential information may be omitted from written decision if decision “on its face indicates that the information has been deleted, and if a brief written summary of the confidential information is prepared.”). We therefore find the statement of the Committee’s findings and reasons is constitutionally adequate.
C. Reliability
Freitas argues that additional due process protections should be afforded in cases involving confidential informants. He suggests that the district court should confirm the reliability of the informants in some manner. The appellees on the other hand argue that due process does not require the district court to review the reliability of an informant.
We agree with Freitas that a determination of the reliability of confidential informants must be made. Due process requires that there be some evidence supporting the disciplinary determination. See Superintendent v. Hill, 472 U.S. 445, 454-56, 105 S.Ct. 2768, 2773-75, 86 L.Ed.2d 356 (1985). A bald assertion by an unidentified person, without more, cannot constitute some evidence of guilt. In addition, checking reliability will “help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens.” Id. at 455, 105 S.Ct. at 2774. The district court’s review of confidential information, in camera, provides such a check. See McCollum v. Williford, 793 F.2d 903, 906 (7th Cir.1986). The appellees give no reasons why this requirement would be burdensome, and we can think of none. We therefore hold that the magistrate did not err in requiring a determination of the confidential informants’ reliability.
The prison officials contend that, even if reliability must be established, the magistrate properly did so here. We agree. After an in camera review, the magistrate found that the record contained sufficient indications of reliability of the informants. He noted that the statements of the two informants contained some factual background, were consistent with each other, and at least one of them was against the informant’s penal interest.
We have examined the confidential statements carefully. We note that they are largely conclusory and barely legible. Although they indicate that Freitas may have counselled some prisoners with respect to the escape, the statements are lacking in detail. Were we making the initial decision, we would be inclined to hold that the statements were inadequate. We cannot say, however, that the magistrate erred in finding sufficient indicia of reliability in the statements.
D. Sufficiency of the Evidence
Freitas claims the evidence is insufficient to support the Committee’s finding of guilt. Although this is a close question, we find that there is sufficient evidence, i.e., some evidence,, supporting the Committee’s finding that Freitas had conspired to assist others in planning an escape from the reformatory.
We reiterate that Freitas was not and could not have been disciplined simply for talking about an escape. There is, however, some evidence showing that an escape was being planned and that Freitas had encouraged the furtherance of this plan or assisted in its preparation, although he was not going to participate in it.
Freitas had conversations with a number of inmates about an escape through the hobbycraft area. Freitas indicated in his statements to Winders that he would have nothing to do with these plots, and yet it appears that Freitas had a fair degree of knowledge of them. In addition, Freitas indicated on occasion that he would himself escape if given a good opportunity because of his fifty year sentence. This alone would not constitute some evidence. When this evidence is combined with the statements of the confidential informants which directly implicate Freitas for assisting in the plans, however, there is some evidence, and some evidence is sufficient under existing law.
III. CONCLUSION
The notice of the charges to be brought against Freitas and the explanation of the ruling by the Committee do not violate due process. The evidence showing the reliability of the confidential informants was scant but sufficient to satisfy due process. In addition, because the statements of the confidential informants directly implicated Freitas, there was some evidence that Frei-tas assisted or furthered the planning of an escape. We therefore affirm the district court’s denial of relief under 42 U.S.C. § 1983.
. This matter was submitted to Magistrate James D. Hodges by consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Appeal of the final judgment of the magistrate to this Court is premised on section 636(c)(3).
. The names Brimeyer and Behrends are also spelled Bermeyer and Barrens in the record.
. The memorandum stated that the following questions were asked of Freitas:
1. Within the past two months, have you seen any hacksaw blades not in control of staff?
2. Within the past two months, were you the one who had any hacksaw blades which were not in control of staff?
3. Within the past two months, other than Roberts has any inmate told you he had access to hacksaw blades?
4. Have you ever seriously said that you would kill a staff member to affect [sic] an escape?
5. Have you ever heard another inmate, besides [Moegenburg] say he would kill a staff member to escape?
6. In order to escape did you tell anyone that you would kill a staff member?
7. Did you intend to escape out of the hobbycraft window?
Freitas answered “no” to each question. The examiner stated that he thought Freitas answered these questions truthfully.
.The results were eventually typed on February 18, 1986. They show that Winders had accurately reported the content of the polygraph examination to the Committee, except apparently for one question. As the magistrate points out, Winders’ memorandum states that Freitas answered "no” to the question: “Did you intend to escape out of the hobbycraft window?” The typed results of February 18 contain no such question. This discrepancy certainly did not prejudice Freitas since its inclusion in Winders’ memorandum only could have confirmed that Freitas did not himself plan to escape.
. Rule 41, the rule on complicity, states in full that:
A resident commits an offense under this subsection when the resident has complicity in or attempts to do any of the above offenses and shall be treated as though the resident personally committed the offense.
The definition of complicity states that:
A resident shall be responsible for the action of another if, with the intent that an offense be committed, the resident commands, induces, procures, or aids another to commit it.
. The disciplinary decision of December 24, 1985, is the decision in issue in this case, since it superseded the November 12, 1985 decision. Stadtmueller replaced Thomas on the subcommittee which rendered the December 24 decision. Because Thomas did not participate in the decision in issue, he should be dismissed from the suit.
. Freitas also contends that his counsel or he should have access to the confidential reports. He argues that he no longer poses a threat to the informants because, as he learned from the prison officials pleadings, two of the informants were no longer at the Iowa Men’s Reformatory. As the prison officials point out, however, these informants might someday be in the same facility as Freitas because of retransfers. While this may be speculation, it still is a very real concern in this case. Cf. Muhammad, 655 F.Supp. at 1472 (where prisoner should have been given access to confidential information because he already knew the identity of informant).
. Hill states that the some evidence standard does not require an "independent assessment of the credibility of witnesses.” Id. at 455, 105 S.Ct. at 2774. We believe consideration of the reliability of confidential informants to be a different matter. As the Third Circuit Court of Appeals stated in Helms v. Hewitt, 655 F.2d 487 (3d Cir.1981), rev'd on other grounds, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), "[a] determination of guilt [based on the report of a confidential informant] with no primary evidence of guilt in the form of witness statements, oral or written, or any form of corroborative evidence, amounts to a determination on the blind acceptance of the prison officer’s statement." Id. at 502.
.In McCollum the Seventh Circuit has named four ways in which the reliability of an informant may be established:
(1) the oath of the investigating officer as to the truth of his report containing confidential information and his appearance before the disciplinary committee ..., (2) corroborating testimony ..., (3) a statement on the record by the chairman of the disciplinary committee that, "he had firsthand knowledge of the sources of information and considered them reliable on the basis of ‘their past record of reliability,’ ” or (4) in camera review of material documenting the investigator’s assessment of the credibility of the confidential informant.
793 F.2d at 906 (citations omitted). We agree with the district court that these methods are not necessarily exclusive nor is any one of them necessarily sufficient to determine reliability. Cf. Rinehart, 483 F.Supp. at 170 (requiring written summary of confidential information relied on by prison disciplinary committee).
. As the Court of Appeals in McCollum stated, in camera review of the reliability of a confidential report determines:
(1)whether providing the inmate with "more specific factual information ... would seriously risk exposing the confidential informant's identity;” (2) whether the confidential report, "contains ... sufficient additional information to bolster the reliability of the [confidential] information;” or (3) whether the disciplinary committee “adopt[ed] the credibility determination made by the prison investigator.”
793 F.2d at 906 (quoting Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986)) (citations omitted and bracketed portions in original).
. To ensure the proper establishment of reliability of confidential informants, prison officials should follow the directions of the district court in Rinehart. In Rinehart, the district court stated that a written summary of confidential information should include:
(1) A brief written summary of all the confidential information, both oral and written, available to the disciplinary committee which pertains to the alleged incident under consideration:
(2) A statement setting forth the identity of the informants either by name or by his relationship to the penitentiary;
(3) A statement indicating what confidential information was relied upon by the disciplinary committee in reaching its decision;
(4) A statement indicating why the disciplinary committee believes the confidential information relied upon to be credible, whether any corroboration of such information is available, and if ... available, what the corroborating information is; and
(5) A statement indicating why the disciplinary committee believes the confidential information should in fact be kept confidential.
483 F.Supp. at 170.
.Freitas also argues that the substantial evidence test should be applied in prisoner disciplinary cases where confidential informants are involved. We disagree. We believe that rectifying any prejudice to a prisoner resulting from the presence of confidential information requires establishing the reliability of the informant, not the alteration of the standard of review. By altering the standard of review, we would affect the review of all the evidence, not just the confidential information. This is contrary to the Supreme Court’s directions in Hill, 472 U.S. at 455, 105 S.Ct. at 2774.
. Freitas also raises two issues which were not raised below. He intimates that he should be allowed to take a polygraph examination which addresses the question of whether he participated in planning or furthering an escape. We hold that Freitas was not entitled to a polygraph examination on this issue. We also hold that Freitas was not entitled to a lawyer or an aide to present his case to the Committee. In Wolff, the Supreme Court stated that a prisoner may be entitled to an attorney or aide in prison disciplinary proceedings if, for example, the issues in the case are complex or the prisoner is illiterate. 418 U.S. at 570, 94 S.Ct. at 2981. The issues in this case are not complex, and Freitas’ written work in the record demonstrates that he clearly grasped them.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America ex rel. Theodore GEISLER, Appellant, v. Gilbert A. WALTERS, Superintendent, Western Correctional Institution, Pittsburgh, Pennsylvania.
No. 74-1345.
United States Court of Appeals, Third Circuit.
Final Submission Dec. 16, 1974.
Decided Feb. 5, 1975.
Joseph N. Bongiovanni, III, Speese & Kephart, Philadelphia, Pa., for appellant.
John J. Hickton, Dist. Atty. of Allegheny County, John M. Tighe, First Asst. Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, J. Kent Culley, Asst. Dist. Attys., Pittsburgh, Pa., for appellee.
Before BIGGS, ADAMS and GARTH, Circuit Judges.
OPINION OF THE COURT
BIGGS, Circuit Judge.
This is an appeal from the district court’s dismissal without a hearing of the relator-appellant’s, Geisler’s, application for habeas corpus. The district court ruled that Geisler had failed to exhaust his state remedies. The instant appeal followed. Its disposition requires our examination of the complicated history of Geisler’s various motions and petitions and a determination of whether he has either exhausted his state remedies or been victimized by circumstances rendering those remedies ineffective. 28 U.S.C. § 2254(b).
I. FACTUAL BACKGROUND
Geisler was tried by a jury on October 19, 1962 for armed robbery and violation of the Uniform Firearms Act. His trial was conducted by Judge Robert Morris of the Pennsylvania Court of Common Pleas. Geisler was found guilty on both counts, and his counsel filed a motion for a new trial but subsequently withdrew it. On February 15, 1963, Geisler was sentenced to a term of 1Lh to 15 years. At a hearing on March 3, 1963, his counsel requested leave to argue the original motion for a new trial. Leave was denied.
In 1964, Geisler filed a petition for habeas corpus in the state court. Judge Morris dismissed that petition without a hearing on October 6, 1964 because it raised issues which he deemed were not properly before him in a habeas corpus proceeding. On appeal, the Pennsylvania Superior Court affirmed per curiam. Commonwealth ex rel. Geisler v. Maroney, 205 Pa. Super. 739, 209 A.2d 437 (1965). The Pennsylvania Supreme Court denied allocatur on August 30, 1965.
Geisler then filed a pro se petition pursuant to the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq., on October 23, 1967. On March 7, 1968 Judge Morris conducted a hearing on the petition, having appointed the Allegheny County Public Defender as counsel for Geisler. The issue was stated to be whether Geisler had been deprived of his right to appeal. On March 4, 1969, Judge Morris filed an opinion and order dismissing the PCHA petition but permitting Geisler to file a motion for a new trial nunc pro tunc. The Public Defender again served as counsel for Geisler. On June 27, 1969, Geisler filed pro se a motion for a new trial, as follows: (1) he was denied effective assistance of counsel; (2) the identification was so impermissibly suggestive as to be constitutionally infirm; (3) the trial court erred in permitting introduction into evidence of the appellant’s prior record of convictions under the Uniform Firearms Act; (4) the admission of prejudicial and unrelated evidence was improper; (5) his arrest was without probable cause; (6) the Assistant District Attorney engaged in prosecutorial misconduct; (7) the trial judge’s charge to the jury denied Geisler a fair trial; and (8) the jury’s double verdict resulted in double jeopardy to the appellant.
On December 17, 1969, six months after the motion for new trial was filed, a court consisting of Judge Morris and Judge Samuel J. Feigus heard oral argument on the motion and took it under advisement. On April 27, 1970, ten months after Geisler filed his motion of June 27, 1969 for a new trial, and again on July 16, 1970, thirteen months after the filing of his motion for a new trial on June 27, 1969, Geisler filed petitions for disposition of his motion for a new trial. These petitions were identical, the second having been filed because the first did not reach the clerk’s office. In substance, they were a procedural request that Judge Morris act immediately on the motion for a new trial and not a substantive enumeration of Geisler’s claims. While appellant specifically elaborated upon several contentions, including denial of effective assistance of counsel and prejudice arising from introduction into evidence of appellant’s prior record, the petition also referred to appellant’s motion for a new trial and the oral argument on that motion.
On September 11, 1970, fifteen months after Geisler had filed his motion for a new trial, Judge Morris filed the following opinion and order:
“This matter is before the Court on a Petition which the Defendant describes as a ‘Petition for Disposition and Remedy as a Matter of Law, a New ■ Trial.’
“Upon a careful review of the Petition in the light of the petitions heretofore filed, hearing held, Orders made by this Court as well as the Superior Court, we can see nothing in the Petition of a meritorious nature.
“On March 4, 1969, this Court filed its Opinion and Order granting to the Defendant the right to file a motion for new trial, nunc pro tunc. This Order was made as a result of a Post Conviction Petition filed by the Defendant alleging previously that he had been improperly denied his right of appeal. After hearing and testimony taken the Order granting him the right to appeal was made. For reasons known only to the defendant, no action was taken by the defendant to perfect such appeal. We refer to our Opinion and Order of March 4, 1969, wherein we review the case from its inception. We see no merit to Defendant’s allegations. Accordingly, we make the following ORDER. AND NOW, September 11, 1970, for the reasons stated above the prayer of the Petition is denied and the Petition is dismissed” (emphasis added).
The foregoing opinion of the learned Pennsylvania trial judge is not entirely clear, but his order is clear enough for he states that “the prayer of the Petition is denied and the Petition is dismissed.” It would appear to us that, whatever may have been in the mind of Judge Morris, the order of September 11, 1970 was an appealable final order.
Geisler appealed this decision to the Pennsylvania Superior Court, which granted him leave to file a brief pro se in addition to the brief which the Public Defender filed in his behalf. The Public Defender’s brief dealt only with the identification issue. Geisler’s pro se brief raised all the issues which had been contained in the motion for a new trial. It argued as well that appellant had been denied a fair trial and effective assistance of counsel at all proceedings subsequent to trial. On June 30, 1971, the Superior Court affirmed the judgment of sentence per curiam. Commonwealth v. Geisler, 218 Pa. Super. 911, 279 A.2d 198 (1971). Both appellant and the Public Defender then petitioned for allocatur to the Supreme Court of Pennsylvania. Geisler’s petition contained all eight issues raised in the motion for a new trial. Those petitions were denied per curiam on January 14, 1972.
Geisler then turned to the federal courts for relief and filed a petition for habeas corpus on March 20, 1972 in the United States District Court for the Western District of Pennsylvania. The Honorable Joseph Weis, then a district court judge, conducted a hearing on August 28, 1972 to determine whether an evidentiary hearing should be held on the petition. Judge Weis concluded that the exhaustion requirement had not been met. Possibly confusion arose from the fact that Geisler filed two petitions for disposition of his motion for a new trial. The learned district judge apparently took the view that Geisler’s motion for a new trial had not been disposed of on the merits by Judge Morris and that the Court of Common Pleas had disposed only of the petitions asking disposition of his motion for a new trial. Regardless of the basis for this decision, Judge Weis, having concluded that Judge Morris’ order and opinion of September 11, 1970 were not a disposition of Geisler’s motion for a new trial, advised President Judge Ellenbogen of the Allegheny County Court of Common Pleas of this discovery by letter on August 30, 1972 and requested that his court formally dispose of the motion. On October 24, 1972 Judge Morris formally denied the appellant’s motion for a new trial. On October 26, 1972, Judge Weis dismissed Geisler’s federal habeas corpus petition for failure to exhaust state remedies. The United States District Court denied appellant’s motion for reconsideration, and this court denied a certificate of probable cause on March 1, 1973 (C.A. Misc. Rec. No. 72-8114). We cannot agree with Judge Weis’ conclusion that Judge Morris’ decision and order of September 11, 1970 were not a sufficient disposition of Geisler’s claims for the purpose of exhaustion of state remedies.
It should be observed that three years and four months passed before the post trial motion was “formally” disposed of by the Court of Common Pleas, viz., the period from June 27, 1969 to October 24, 1972. Nor perhaps would disposition have been made even on this late date had it not been for the letter of Judge Weis to Judge Ellenbogen.
Geisler next moved to appeal Judge Morris’ order of October 24, 1972 in the Pennsylvania Superior Court. In a per curiam affirmance of that judgment the Superior Court on September 19, 1973 denied appellant’s application for the third time. Commonwealth v. Geisler, 226 Pa.Super. 722, 309 A.2d 817 (1973).
Then occurred whát we deem to be a curious circumstance. In the first federal habeas corpus proceeding, that of March 20, 1972, a United States Magistrate appointed as counsel for Geisler a member of the bar of Allegheny County. Counsel continued to advise appellant after the case returned to the state tribunals and, when the Superior Court rejected Geisler’s appeal on September 19, 1973, wrote Geisler that he had exhausted his state remedies and that he could now file his “Federal Court Petition for Writ of Habeas Corpus”. The substance of the letter is set out in the footnote. At this point, Geisler, as would be expected, apparently abandoned the thought of any appeal to the Supreme Court of Pennsylvania. In view of the great vigor with which Geisler sought relief from his judgments of conviction, we think he would have applied for allocatur, probably pro se, and if allocatur had been denied, there could be no question but that he would have exhausted his state remedies. Geisler foreclosed himself from this course, however, probably because of the advice of counsel.
Geisler then filed a second petition for federal habeas corpus and this was referred to Judge Snyder, who rejected it on the ground that Geisler had not exhausted his state remedies. It is this denial of habeas corpus which is before us on this appeal.
II. THE LAW AND THE DISPOSITION OF THIS CASE
(A)(1) Geisler has exhausted his state remedies. He filed a petition for state habeas corpus. This was refused. On appeal to the Superior Court the judgment was affirmed and allocatur was denied by the Supreme Court. He also filed a petition under the PCHA and Judge Morris, while on the record denying the relief sought, nonetheless granted it in substance by giving Geisler leave to file a motion for a new trial nunc pro tunc. In our view it is not necessary that he again make use of the provisions of the PCHA or raise these same issues again on collateral attack. “[T]he Supreme Court made clear in Brown v. Allen that the exhaustion doctrine is not intended to give the states more than one full chance.” Developments in the Law — Federal Habeas Corpus, 83 Harv. L.Rev. 1038 at 1096 (1970) (footnote omitted).
We cannot agree with our Brother Weis or with Judge Snyder that Judge Morris’ order of September 11, 1970, the affirmance of that judgment by the Superior Court, and the denial of allocatur by the state Supreme Court did not exhaust Geisler’s state remedies. As we have stated earlier, Geisler’s pro se motion for a new trial and his appeals’ briefs embraced identical issues. They likewise included all issues raised previously in the state habeas corpus proceedings and all issues, save that of denial of the right to appeal, raised in the PCHA proceeding. More importantly, those same issues have been raised in both federal habeas corpus petitions. Geisler’s petitions and briefs are inartistic and do not fit exactly or with clockwork precision into the Pennsylvania state court procedures, but since he was acting pro se, they were sufficiently adapted to their purpose to put the Superior Court and Supreme Court of Pennsylvania on notice as to the issues raised and the relief sought. See United States ex rel. Turner v. Rundle, supra; United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970).
We deem it imperative to note that the exhaustion doctrine does not require that the state courts have actually ruled on the merits of the claims, but merely that they have had those contentions presented to them. See Brown v. Allen, supra, 344 U.S. at 448-449, note 3, 73 S.Ct. 397; United States ex rel. Turner v. Rundle, supra, 438 F.2d at 845; Ralls v. Manson, 375 F.Supp. 1271 (D.Conn.1974). In this regard, the decision as to whether exhaustion has occurred should be based on the record and pleading before the state courts not the length of their opinions. United States v. Pate, 240 F.Supp. 696, 704 (N.D.Ill.1965). See also Sokol, Federal Habeas Corpus, § 22.2 (2d ed. 1969). While the case before us is most certainly sui gen eris, we emphasize that “[i]t is the legal issues that are to be exhausted, not the petitioner.” Park v. Thompson, 356 F.Supp. 783, 788 (D.Haw.1973).
(2) If we assume that our Brother Weis’ position is correct as to the “formal” disposition of Geisler’s motion for a new trial, we are confronted with a further dilemma. The motion for a new trial was filed on June 27, 1969 and was not “formally” disposed of by Judge Morris until October 24, 1972, a period of three years and four months. We hesitate to repeat the ancient statement that justice delayed is justice denied, but there can be no doubt that such an inordinate delay is an adequate basis for federal habeas corpus relief even though state remedies have not been exhausted. See, e. g., United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir. 1973); Tramel v. Idaho, 459 F.2d 57, 58 (10th Cir. 1972); Ralls v. Manson, supra, 375 F.Supp. at 1282; Phillips v. Tollett, 330 F.Supp. 776, 778 (E.D.Tenn.1971).
(B) As we have pointed out, counsel appointed for Geisler at the time of the first federal habeas corpus proceeding by the United States Magistrate was unaware of what constituted exhaustion of state remedies and expressly informed Geisler that he did not need to apply for allocatur to the Supreme Court of Pennsylvania after the Superior Court had affirmed the decision of the Court of Common Pleas of Allegheny County. This court has taken the position that effective representation is to be judged by a standard of normal and reasonable competency as suggested in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). See the cases cited in Case Note, 43 Fordham L.Rev. 310 at 313-315 (1974).
Assuming, however, that the position taken by the learned district judges, i. e., to the effect that Judge Morris’ order of September 11, 1970 was insufficient, we conclude that Geisler is entitled to have his petition heard because of the provisions of 28 U.S.C. § 2254(b), which state that habeas is available if there exists “circumstances rendering [State corrective] process ineffective »
III. CUSTODY FOR THE PURPOSE OF FEDERAL HABEAS CORPUS
One point remains for disposition, but as we read the Government’s position, it is not really contested. The record indicates that appellant is presently on “furlough” from the State Correctional Institution at Pittsburgh. The restraints upon Geisler’s freedom, however, constitute “custody” within the terms of 28 U.S.C. §§ 2241(c), 2254(a) for the purposes of federal habeas corpus jurisdiction.
IV. CONCLUSION
The judgment will be reversed and the case remanded. All issues save that of exhaustion of state remedies remain open for disposition by the district court.
. Geisler had been indicted at No. 3 October Sessions, 1962 in the Criminal Courts of Allegheny County on counts of armed robbery (formerly, 18 P.S. § 4705; now, 18 C.P.S. §§ 3701 and 6103) and receiving stolen goods (formerly, 18 P.S. § 4817; now, 18 C.P.S. § 3925). Geisler was also indicted at No. 14 October Sessions, 1962 on a count of violation of that portion of the Uniform Firearms Act which prohibits former convicts from owning or possessing firearms (formerly, 18 P.S. § 4628(d); now, 18 C.P.S. § 6105). He and his co-defendant Wilbert Kastle were tried and convicted solely on the armed robbery and firearms violation counts.
. The issues raised by this habeas corpus petition were as follows: (1) ineffective assistanee of counsel; (2) trial court erred in permitting evidence as to prior convictions; (3) prejudicial and unrelated evidence; (4) arrest without probable cause; (5) trial judge’s instructions denied fair trial; and (6) prosecutorial misconduct.
Judge Morris’ order was as follows:
“And Now, October 6, 1964, the within petition for writ of habeas corpus is ordered filed, filing fee to be paid by Allegheny County. Inasmuch as the petition sets forth no complaints which can properly be considered under a petition for writ of habeas corpus, the petition is hereby dismissed.”
. The issues raised by the Pennsylvania Post Conviction Hearing Act petition were as follows: (1) ineffective assistance of counsel; (2) introduction into evidence of prejudicial and unrelated evidence; (3) identification; (4) arrest without probable cause; (5) denial of right to appeal; (6) use of prior criminal record; (7) prosecutorial misconduct; and (8) trial judge’s jury charge was erroneous.
Judge Morris’ order of March 4, 1969 stated in part:
“[T]he Defendant-Petitioner is hereby granted the right to file a Motion for a New Trial, nunc pro tunc.”
. Copies of the briefs and petitions filed in these appeals to the Superior and Supreme Courts of Pennsylvania were not in the record before us, a record which, as is too frequently the case in habeas corpus proceedings, is woefully lacking in this and other respects. However, copies of the briefs and petitions to these courts in the aforementioned appeals have been procured, and this court will order them to be included in and made part of the record before us so that the Reviewing Court may have a full and proper record before it. We, of course, take judicial notice of these documents, as the United States District Court could have done. See Doe v. Wohlgemuth, 505 F.2d 186 (3d Cir. 1974), note 5 at 188, citing inter alia, Funk v. Commissioner of Internal Revenue, 163 F.2d 796 (3d Cir. 1947), and Zahn v. Transamerica Corporation, 162 F.2d 36 (3d Cir. 1947). Cf. Rule 44(b), F.R.Civ.Proc., and Rule 10(e), F.R.App.Proc., 28 U.S.C.
. Geisler’s prolix petition consists of 26 typewritten pages, with numerous appendices. This petition asserts ten “grounds” for relief. These grounds when boiled down to their essence, and giving to Geisler’s pleading every advantage to be granted a pro se petition under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), present the same bases for relief, and none other, as were asserted in Geisler’s motion for new trial and in the aforementioned appeals’ briefs and petitions filed with the Pennsylvania Superior and Supreme Courts after Judge Morris’ order of September 11, 1970.
. On this appeal, appellant again raised the eight issues enumerated, supra. In addition, he contended that the three and a half year delay in ruling on his motion for new trial was a deprivation of due process and equal protection of the laws. The briefs filed in this appeal are not in the record before us. We have, however, gleaned the foregoing from the brief which appellee filed with us, and under these circumstances we treat this uncontradicted statement as an admission.
. Appellant alleges, and we find it noteworthy, that on March 27, 1973 during the pend-ency of this appeal before the Superior Court, the Commonwealth filed a “Petition to Dismiss Due to Prior Appellate Review of Issues.” In effect, such a petition is an admission that the Superior Court’s decision of June 30, 1971 was an adequate review of the contentions raised in Geisler’s post-trial motion. The issue of whether appellant has exhausted his state remedies would, then, turn solely on the content of the allocatur petitions rejected by the Pennsylvania Supreme Court on January 14, 1972.
. Please find enclosed the opinion of the Superior Court affirming your judgment of sentence. I now suggest that if you carry this matter further, that you can file your Federal Court Petition for Writ of Habeas Corpus as you have now exhausted the state remedies." (Emphasis added.)
. The “Issues and Grounds" presented in this petition are substantially the same as those which were before the United States District Court in Geisler’s first petition for federal habeas corpus, save two which were added, as follows:
“The district court executed fundamental error in sending petitioner back through the courts of the State, by letter and suggestive belief that the State court would remedy the flagrant abuses of a totality tainted trial, judgment and appeal, without competent counsel, which, subjected him to: a three-year delayed opinion from without jurisdiction and without trial record, on one paragraph opinion and repeat issues on appeal and affirmed on appeal on the previously affirmed appeal.”
“Where petitioner has proceeded to the only appellate court wherein his legal and rightful appeal is mandated, has he not exhausted state remedies? And/or is graceful allowance of appeal to the Supreme Court mandatory?”
We need not concern ourselves with these two claims in respect to any issue of exhaustion of remedies since their contents cannot be considered in an on-the-merits adjudication of appellant’s petition. In fact, they consist of incoherent legal jargon.
For purposes of identification and clarity, we state that the first federal petition for habeas corpus is numbered Civil No. 72-234 and the second federal petition for habeas corpus is numbered Civil No. 73-1034.
. Brown v. Allen, 344 U.S. 443 at 447, 73 S.Ct. 397, 97 L.Ed. 469 (1953); United States ex rel. Schultz v. Brierley, 449 F.2d 1286, 1287 (3d Cir. 1971); Osborn v. Russell, 434 F.2d 650, 651 (3d Cir. 1970).
. A denial of allocatur, as here, or a similar refusal to entertain an appeal constitutes a sufficient presentation for purposes of exhaustion. United States ex rel. Turner v. Rundle, 438 F.2d 839, 845 (3d Cir. 1971) (denial of allocatur by the Pennsylvania Supreme Court).
. Ralls v. Manson, supra, 375 F.Supp. at 1282: “The three and one-half year period during which the direct appeal in the instant case has been pending, although somewhat longer than the average, is by no means unique among Connecticut cases. Nevertheless, this delay in adjudicating the petitioner’s rights is clearly inordinate and excessive: it certainly offends the ‘limits to the sacrifices men must make upon the altar of comity.’ United States ex rel. Lusterino v. Dros [D.C.N.Y.], supra, 260 F.Supp. [13] at 16. As the United States Supreme Court declared in Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963), ‘Where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceedings.’ Cf. Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936, 940-941 (4th Cir. 1964).” The Supreme Court of Delaware in Erb v. Delaware, 332 A.2d 137 (1974) expresses a strong view in respect to delayed juridical actions. The Court said this in respect to delays of counsel:
“The Court docket . . . chronicles appalling and unnecessary delay in prosecution of the appeals resulting from a lack of coordination between trial counsel and the Public Defender and the failure of both of them to meet their responsibilities as counsel of record. Trial counsel did not order a transcript of testimony nor provide the Public Defender with pertinent information as to errors of law on which the appeals are based, and the Public Defender did not meet his responsibility to prosecute the appeals with diligence. The delay of some thirteen months without a transcript, without an order for transcript and without a meaningful brief is simply unconscionable.” (footnote omitted).
. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). See also Sokol, supra, at § 6.1.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_r_natpr
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2
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MYERS v. MYERS et al.
(Court of Appeals of District of Columbia.
Submitted February 10, 1925.
Decided March 2, 1925.)
No. 4160.
I. Divorce <§=222—Allowance of wife’s attorney’s fees by supplemental decree after granting, of divorce to husband held proper.
: ■ Where court, on granting husband divorce on grounds of adultery, and holding similar charges by wife unfounded, reserved for further consideration matter of defendant wife’s 'aftorüe^’s' feesi. ftcid,-under Code, § 975, court did not lose authority to allow attorney’s fees by supplemental decree, nor was such allowance irregular, because husband had prevailed, or because wife’s defense on issue of adultery necessarily served as defense of corespondent named by husband, who was represented by same attorney.
2. Divorce <§=189—Court may not impose on corespondent named by husband payment of counsel fees for wife as party to case.
In husband’s divorce action on ground of adultery, court may not impose on corespondent named payment of counsel fees for defendant wife as party to case.
Appeal from the Supreme Court of the District of Columbia.
Suit for divorce on ground of adultery by Samuel N. Myers against Victoria Myers, with Cecil D. Alley as corespondent, wherein the wife by cross-bill sought divorce on same ground. The court on final decree granted the husband a divorce on the ground charged, and held the wife’s charges against the husband wholly unsustained by evidence, but reserved matter of wife’s attorney’s fees for further consideration, and by supplemental decree fixed amount thereof, from which decree plaintiff appeals.
Affirmed.
F. E. Elder, of Washington, D. C., for appellant.
R. E.. J. Whalen, of Washington, D. C., for appellees.
Before MARTIN, Chief . Justice, amp. ROBB and VAN ORSDEL, Associate Justices.
MARTIN, Chief Justice.
In the lower court Samuel N. Myers filed a petition for a divorce from his wife, Victoria Myers, upon the ground of adultery, naming Cecil D. Alley as corespondent. The wife answered, denying the charge, and by way of cross-bill charged her husband with adultery, praying for a divorce from him upon that ground. The .husband answered the- cross-bill with a denial, and the several corespondents filed similar denials. The trial court heard the testimony and granted an absolute divorce to the husband upon the ground charged in the petition, at the same time holding that the charges of the wife against her husband were wholly unsustained by the evidence.
When the cross-bill was filed, the wife presented a motion praying the court to require her husband to pay her alimony pendente lite, and also a reasonable sum for suit money, including counsel fees. The record does not directly disclose what disposition.: was made of this motion, but apparently the demand for alimony pendente lite was denied, and the determination of suit money and counsel fees was taken under advisement. The final decree contains the following statement, to wit, “It is further ordered that the matter of fees of Robert E. J. Whalen, attorney of record for the defendant in this case, together with costs, shall be in abeyance pending further consideration by the court.” Afterwards the court entered a supplemental decree, reciting the fact that theretofore the question of making proper allowance for counsel foes to the attorney of the defendant, and for expenses incident to the trial of the case, had been reserved for further consideration, and now ordering that the plaintiff should pay to the attorney of record for the defendant the sum of $500 as fees for services rendei'ed in behalf of the defendant, Victoria P. Myers, and in addition should pay the sum of $265.26 to cover the expenses incidont to her defense. The plaintiff appealed from that decree.
We find no error in the action of the lower court. Under section 975, D. C. Code, the court was authorized to require the husband to pay suit money to the wife, including counsel fees, to enable her to conduct her caso. The court did not lose that authority when it seasonably took the matter under advisement, for the cause was still pending when the supplemental decree was entered. Nor was the allowance irregular because of the fact that the husband had prevailed at the trial of the issue. The wife was entitled to present her case, and the court may compel a husband to pay counsel fees for the wife, while refusing because of her misconduct to compel the payment of alimony. Scott v. Scott, 8 Pa. Dist. R. 548; Pratz v. Pratz, 11 Pa. Co. Ct. Rep. 252; Miller v. Miller, 19 Phila. Rep. 329. The procedure adopted in the present ease was within the discretion of the court. Neither was the court’s authority affected by the fact that the wife’s defense upon the issue of adultery necessarily served as a defense of the corespondent, and that the same attorney represented both at the trial. The allowance was specifically made to the attorney because of services rendered to the wife only, and the court was able to make a proper estimate of the value of such services. There is nothing in the record to suggest a mistake, much less an abuse of discretion, upon the part of the lower court in its determination of the amount of the allowance.
It may he added that, by analogy with Eichelhorger v. Symons, 288 F. 654, 53 App. D. C. 116, the court was not entitled to impose upon the corespondent the payment of counsel fees for the wife as a party in the case.
The decree is affirmed, with costs.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_respond1_2_3
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
RHODE ISLAND FEDERATION OF TEACHERS, AFL-CIO et al., Plaintiffs-Appellees, v. John H. NORBERG, Defendant-Appellant.
No. 79-1660.
United States Court of Appeals, First Circuit.
Argued May 5, 1980.
Decided Sept. 17, 1980.
William G. Brody, Asst. Atty. Gen., Providence, R. I., with whom Dennis J. Roberts, II, Atty. Gen., and John S. Foley, Sp. Asst. Atty. Gen., Providence, R. I., were on brief, for defendant-appellant.
Lynette Labinger, Providence, R. I., with whom Julius C. Michaelson and Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Providence, R. I., were on brief, for plaintiffs-appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
The principal question presented by this appeal is whether the district court properly concluded that a Rhode Island statute granting a state income tax deduction for tuition, textbook and transportation expenses incurred in sending dependents to primary and secondary schools in New England contravenes the Establishment Clause of the first amendment. Although judicial responses to the complexities of modern society have transformed the once “high and impregnable” wall erected between church and state by the first amendment, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), into a “blurred, indistinct and variable barrier,” Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971), we agree with the district court’s conclusion that, if allowed to stand, the statute would form an unconstitutional bridge between church and state.
In May of 1979, Rhode Island Governor Garrahy signed an amendment to the Rhode Island income tax statute allowing as a deduction from gross income amounts paid to others for tuition, transportation and textbooks in sending dependents to public and private schools in New England. R.I.Gen.Law § 44-30-12(c)(2). The deduction was limited to five hundred dollars for each dependent enrolled in kindergarten or grades one through six and seven hundred dollars for each dependent enrolled in grades seven through twelve. The term “textbooks” included only secular instructional material and equipment. Id.
In August of 1979, a coalition of individuals and labor and civic organizations brought suit pursuant to 42 U.S.C. § 1983 alleging violation of the first amendment, as applied to the states by the fourteenth amendment, challenging the constitutionality of the statute and seeking injunctive relief against its enforcement by John H. Norberg, Tax Administrator of the State of Rhode Island. A temporary restraining order issued pending a hearing on the merits. After the hearing, the district court found the statute violative of the Establishment Clause of the first amendment and enjoined its enforcement. Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. 1364 (D.R.I.1979).
The State contends, on appeal, that the district court erred in concluding that (1) the tuition deduction had the primary effect of advancing religion; (2) the textbook and instructional materials and equipment deduction would have necessitated surveillance of the choice and use of materials selected, resulting in excessive government entanglement with religion; and (3) the transportation deduction could not be severed from the unconstitutional portions of the statute. We discuss these issues seriatim.
The Tuition Deduction
The State challenges the district court’s conclusion that the primary effect of the tuition deduction was to advance religion on two grounds. First, the State argues that the court erred in assuming that the receipt of a tax benefit by parents whose children attend sectarian schools would result in receipt of a benefit by religious schools themselves. Second, the State contends that the court erred in applying Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), to this case, asserting instead that the case is controlled by Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).
In regard to the first argument, we observe that the district court found “that the primary effect of the tuition tax deduction is the advancement of religion,” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1371 (emphasis added), not religious institutions, as implied by the State. There is no requirement in this case that the plaintiffs prove that religious schools are directly benefited by the tuition deduction. It is sufficient that the plaintiffs show that a primary effect of the tuition deduction is to confer a special benefit on the parents who choose to send their children to sectarian institutions. The law carries the rest of the plaintiffs’ burden, assuming, as a matter of common sense and experience, that conferral of a benefit for the performance of a religious act will make people more likely to continue to perform the act or to begin to perform it if they are not already doing so. The Supreme Court has stated in declaring tuition reimbursement grants for attendance at sectarian schools unconstitutional:
[I]f the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions.
Committee for Public Education v. Nyquist, 413 U.S. at 786, 93 S.Ct. at 2972. The Court made clear that conferral of similar benefits by tax device is equally unconstitutional, regardless of whether the dollars not paid in taxes ever reach the religious institution:
In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition grant allowed under § 2. The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State.
Id. at 790-91, 93 S.Ct. at 1274. By encouraging parents to send their dependents to religious institutions, the tax benefits aid the institutions themselves:
Special tax benefits, however, cannot be squared with the principle of neutrality established by the decisions of this Court. To the contrary, insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions.
Id. at 793, 93 S.Ct. at 2975-2976.
Since the statute is facially neutral and does not speak in terms of sectarian schools, the more important question is whether the district court properly concluded that the tuition deduction had the primary effect of conferring a tax benefit on parents who send their children to sectarian schools. After reviewing the facts found by the district court, undisputed here by the State, and analyzing the facts which may properly be inferred as flowing from the Rhode Island income tax statute, we find the district court’s conclusion to be sound.
The Rhode Island income tax system, like that of some other states, piggybacks on the federal income tax system. Rhode Island taxpayers may determine their state income tax liability in either of two ways. The first method simply sets the State tax at nineteen percent of the taxpayer’s federal income tax. R.I.Gen.Law § 44-30-2(a). The second method requires reference to tax tables prepared by the State Tax Administrator. R.I.Gen.Law § 44-30-3. Use of the tax tables requires determination of the taxpayer’s “Rhode Island income,” R.I. Gen.Law § 44-30-12(a), a term describing the taxpayer’s federal adjusted gross income further adjusted by additions and deductions provided by Rhode Island law, including those at issue here. The tax tables are designed to produce a tax of not more than five dollars less, if no Rhode Island deductions are taken, than would be produced by application of the nineteen percent Rhode Island tax rate to the taxpayer’s federal income tax. The main purpose of the tax tables, however, is to allow the taking of Rhode Island deductions. Accordingly, we may infer that a person would benefit from the tuition tax deduction if the person (1) owed a federal income tax, and (2) sent one or more dependents to a qualifying primary or secondary school in New England, and (3) paid money to others for the tuition of any dependents attending qualifying schools. For practical purposes, the amount of tax benefit received by particular taxpayers would depend upon the amount of the deduction and their federal income tax bracket. In some cases, if the deduction were large enough, the taxpayer would move into a lower federal tax bracket for purposes of computing Rhode Island’s tax. The Rhode Island Budget Office estimated at the time of enactment of the statute that eligible taxpayers would receive an average tax benefit of thirty-three dollars from the deduction.
The facts found by the district court show the true color of the tuition deduction. The court found that, of the 29,387 students attending> nonpublic and tuition funded public schools in Rhode Island in 1979, ninety-four percent (27,397) attended sectarian schools. Although the district court received no evidence concerning the number of religious affiliation of students attending schools outside Rhode Island whose parents would be eligible for the Rhode Island income tax deduction, there was uncontradicted evidence that seventy — nine percent of the students enrolled in nonpublic schools in New England attend sectarian schools. From these facts, it drew the reasonable inference that “the overwhelming majority of parents eligible for the challenged tuition deduction send their children to sectarian schools.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1366. To that inference we add our conclusion that, because of the method of operation of the Rhode Island income tax statute, the tuition tax deduction would produce a tax benefit for any parent who owes a federal income tax. Given our knowledge of the broad impact of the federal income tax and since the class of parents is so large as to be very similar to the general class of federal taxpayers, we think it proper to conclude that the Rhode Island tuition deduction would confer a tax benefit along nearly solid sectarian lines. Cf. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316, 1321 (D.Minn.1978) (a nearly identical statute found to confer no tax benefit unless it moved the taxpayer into a lower tax bracket).
In discussing the State’s first argument, we have also presaged our response to the State’s contention that this case is controlled by Walz, rather than by Nyquist. We address the issue in full, however, because the State has vigorously attempted at each stage of this litigation to squeeze the tuition deduction beneath the protective umbrella of Walz.
In Walz v. Tax Commission, the Supreme Court upheld a New York City property tax exemption for places of religious worship as part of a broad category of exemptions for religious, charitable, and educational institutions. 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697. The Court reasoned that, since places of worship were exempted from property taxation only as part of a broader class of properties owned by not-for-profit institutions, the exemption created only a minimal and remote involvement between church and state. Id. at 674-76, 90 S.Ct. at 1414—15, 25 L.Ed.2d 697. The Court also noted that exemption from taxation created less governmental involvement with religion than would taxation, and that exemption perpetuated a long established relationship between church and state in the United States. Id. at 676-80, 90 S.Ct. at 1415-17, 25 L.Ed.2d 697. Walz has been used for the premise, which the State relies on here, that an exemption which results in a sectarian benefit is more likely to pass constitutional muster than the direct grant of an equivalent benefit. Relying in part on this incorrect premise and in part on the equally flawed theory that conferral of benefits on the parents of sectarian students is constitutionally distinct from conferral of the same benefit on religious institutions, supporters of religious education have attempted in recent years to use a variety of tax devices to reduce the cost of religious education. In addition to the statute at issue here, these devices have included: income tax credits for the educational costs of students enrolled in nonpublic primary and secondary schools, Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d 344 (Minn. 1974), cert. denied, 421 U.S. 988, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975); income tax credits for expenses incurred by any parent, in excess of expenses incurred by parents generally, in sending dependents to a nonpublic primary or secondary school, Kosydar v. Wolman, 353 F.Supp. 744 (S.D.Ohio 1972), aff’d sub nom. Grit v. Wolman, 413 U.S. 901, 93 S.Ct. 3062, 37 L.Ed.2d 1021 (1973); an income tax deduction of $1,000 per dependent attending a nonpublic primary or secondary school. Public Funds for Public Schools v. Byrne, 444 F.Supp. 1228 (D.N.J. 1978), aff’d, 590 F.2d 514 (3d Cir. 1979); an income tax deduction of up to $700 per dependent for expenses incurred in attending a public or private primary or secondary school, Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316 (D.Minn.1978); and an income tax deduction for each dependent attending a nonpublic primary or secondary school, with eligibility for the deduction starting at an income of $5,000 and with the amount of the deduction decreasing as the taxpayer’s income increased, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948. Except for the one in Roemer, all of these devices have been found to contravene the Establishment Clause.
The pivotal factor in determining the constitutionality of tax devices affecting religious institutions or religious education has been the breadth of the affected class. In Walz, places of worship were only part of a broader class of nonprofit institutions. In all but one of the cases holding tax credits or deductions for educational expenses unconstitutional, the courts have found that most of the qualifying schools were sectarian. Committee for Public Education v. Nyquist, supra (85% of eligible schools sectarian); Public Funds for Public Schools v. Byrne, supra (95% of eligible schools sectarian); Kosydar v. Wolman, supra (98% of eligible schools sectarian).
In the only ease in which a tax deduction for educational expenses has been upheld, the exact nature of the benefited class never became known because the parties stipulated that “some” students whose parents were eligible for the tax benefit attended sectarian schools. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. at 1318-19 n.2. The benefited class in Roemer included, at least on the face of the statute, the parents of both public and private school students. Id. Without evidence that more than “some” of the affected students attended sectarian schools, the deduction remained safely beneath the “minimal and remote involvement” umbrella of Walz. Thus, despite the near identity of the statutes in this case and in Roemer, the district court’s finding here that the overwhelming majority of the parents eligible for the tuition deduction send their children to sectarian schools denies the tuition deduction the protection of Walz and places it, as the district court found, within the proscription of Nyquist. Absent a class having primarily secular characteristics, as found in Walz and presumed to exist in Roemer, it cannot be said that the advantages flowing from the statute to the parents of sectarian school students will be incidental to secular ends and effects, Public Funds for Public Schools v. Byrne, 590 F.2d 514, 518-19 (3d Cir. 1979), or that conferral of the benefit will not, as the district court cautioned, “greatly increase the risk of religious rancor.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1367; see also Abington School District v. Schempp, 374 U.S. 203, 259, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring).
The Textbook Deduction
Finding the textbook and instructional materials deduction “constitutionally distinct” from the textbook loan programs upheld by the Supreme Court, e. g., Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), the district court ruled the deduction unconstitutional because of its “potential for excessive entanglement between church and state.” Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1372. The court reasoned that the State would be obligated to ascertain that deductions were not taken for sectarian books and instructional materials and that instructional equipment was not used for sectarian purposes. The minimum surveillance required to fulfill these obligations, the court concluded, would result in excessive entanglement between church and state. On appeal, the State contends that the deduction would be taken by the parents, not by the religious institution, and that any entanglement will be between the state and the parent. The State also argues that, if the instructional materials start “as secular, nonideological and neutral, they will not change in use.” Meek v. Pittenger, 374 F.Supp. 639, 660 (E.D.Pa.1974).
Our analysis compels rejection of both arguments. We start with the premise that the State could not permit deductions to be taken for sectarian books or instructional materials, see Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), or for instructional equipment that is used for sectarian purposes, see Wolman v. Walter, supra. Compare Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973) (reimbursement to religious schools of the cost of state mandated programs held unconstitutional because of the absence of an audit procedure to guarantee secular use of funds), with committee for Public Education v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980) (successor statute, with audit procedure, upheld). We note that there is already on the books a Rhode Island statute requiring local school committees to loan science, mathematics, modern language and other approved secular textbooks to all Rhode Island schoolchildren. This, without more, gives the deduction a sectarian hue. The State’s premise, that if instructional materials are nonideological and neutral to start with they will not change in use, does not apply where the source of the materials is sectarian.
Any surveillance effort will, of course, begin with the parents who take the deductions. We think it highly unlikely, however, especially in the case of textbooks and instructional materials, that the choice of materials will be made by the parent. If only to ensure that students study proper materials and are evaluated fairly, schools will be forced to provide some guidance on the purchase of educational materials. Thus, if a dispute arises as to the religious nature of a text or instructional materials, the dispute will eventually have to be resolved between the State and the affected religious institution. If the State disallows the deduction, the question is appealable to state court, and the State will be asked to define an article of faith as a matter of law. This is precisely the kind of affirmative entanglement of church and state the first amendment prohibits. Moreover, there is also present, at least, the seeds of conflict between parents and the state as to matters of religious faith. If the State contends a written document or other material is religious in nature, a parent may deny its relation to his faith so as to remain eligible for the tax deduction. The potential for' encouragement of the denial of faith, to facilitate its practice, is a perversion of the concepts of religious liberty the first amendment embodies and protects. See Abington School District v. Schompp, 374 U.S. at 259, 83 S.Ct. at 1591.
The difficulty with this provision is not that the secular nature of the textbooks and instructional material for which deductions might be taken could not be guaranteed; it is that the involvement of church and state necessary to guarantee that result would excessively entangle church and state. See generally Surinach v. Pesquera de Busquets, 604 F.2d 73 (1st Cir. 1979). The district court correctly distinguished this case from those in which the state determines in advance of the purchase the secular nature of texts and instructional materials. We agree that continuing surveillance would be necessary to ensure that equipment which can be used for both secular and sectarian purposes, such as tape recorders and projectors, are used only for secular purposes.
The Transportation Deduction
We find no error in the district court’s conclusion that, because the transportation deduction was a minor part of the challenged statute, it could not be severed from the unconstitutional portions of the statute.
The general savings or separability clause of the Rhode Island Income Tax Act, R.I.Gen.Law § 44-30-96, was enacted prior to the adoption of the deductions at issue here. While there is a presumption of separability where such a clause exists, Sutherland on Statutory Construction § 44.09 at 351 (4th ed.), the determining factor is whether the legislature would have enacted the transportation deduction independently of the tuition and textbook deductions. See Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). This necessitates divining the legislative intent of a legislative body that keeps no record of floor debate and chose not to include a separability clause in the challenged act. The legislature could have enacted the deductions in separate sections of the same act; it chose instead to include them in the same sentence. All three deductions have the same purpose as evidenced both by their design and their effect. Moreover, as the district court found, the fiscal note to the act and the fact that the State already requires local school committees to provide free transportation to all primary and secondary students in Rhode Island indicate that the transportation deduction was perceived by the legislature as a small part of the entire bill. In effect, the only persons likely to use this deduction would have been those whose dependents attended school outside Rhode Island. Considering all these factors, we think the district court was correct in inferring an intent to allow the transportation deduction to ride with the rest of the statute. See Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217; see also Sloan v. Lemon, 413 U.S. 825, 833-34, 93 S.Ct. 2982, 2987, 37 L.Ed.2d 939 (1973).
Affirmed.
. R.I.Gen.Law § 44-30-1 et seq.
. R.I.Gen.Law § 44-30-12(c)(2) provides:
(c) Modifications Reducing Federal Adjusted Gross Income.-There shall be subtracted from federal adjusted gross income ...
(2) amounts paid to others, not to exceed five hundred ($500) dollars for each dependent in kindergarten through sixth grade and seven hundred ($700) dollars for each dependent in grades seven through twelve inclusive, for tuition, textbooks, and transportation of each dependent attending an elementary or secondary school situated in Rhode Island, Massachusetts, Connecticut, Vermont, New Hampshire, or Maine, wherein a resident of this state may legally fulfill the state’s compulsory attendance laws, which is not operated for profit, and which adheres to the provisions of the Civil Rights Act of 1964. As used in this section, “textbooks” shall mean and include books and other instructional materials and equipment used in elementary and secondary schools in teaching only those subjects legally and commonly taught in public elementary and secondary schools in this state and shall not include instructional books and materials used in the teaching of religious tenets, doctrines, or worship, the purpose of which is to inculcate such tenets, doctrines or worship.
. For the 1978-79 school year, the average annual tuition nationwide in Catholic schools was $250 in primary schools and $700 in secondary schools. Comeback in Catholic Schools, U. S. News & World Rep., Mar. 20, 1978, at 54 quoted in Note, Government Neutrality and Separation of Church and State: Tuition Tax Credits, 92 Harv.L.Rev. 696, 701 n.30 (1979).
. The first amendment provides in relevant part:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof!.]
. Only expenses incurred in sending dependents to nonprofit institutions which satisfy Rhode Island’s compulsory attendant laws, and which comply with the antidiscrimination provisions of the Civil Rights Act of 1964, qualify for the deduction. R.I.Gen.Law § 44-30-12(c)(2).
. For example, the Joneses, a family of four persons, has a federal adjusted gross income of $12,000. Using their standard personal exemptions, their federal taxable income is $8,000 and their tax is $702 (1979 Tax Rate Schedule). Their Rhode Island income tax would be $133.38 (.19 X $702). If the Jones family sends both children to a qualifying secondary school and incurs $700 in expenses for each, the deduction of $1,400 would reduce their Rhode Island income to $6,600. Since the Rhode Island tax tables are calculated to produce a tax of not more than five dollars less than would be produced by application of the nineteen percent rate of tax to the taxpayer’s federal income tax, the Jones’ savings flow, in effect, from operation of the changes of brackets and rates in the federal tax system. Thus, not only is their taxable income reduced by $1,400, but their effective marginal federal tax rate is reduced from 18% to 16% (1979 Tax Rate Schedule). Their Rhode Island tax would be $89.30 (.19 X $470), a saving of approximately forty-four dollars.
. See Abington School District v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963) (Douglas, J., concurring); “What may not be done directly may not be done indirectly lest the Establishment Clause become a mockery.”
. In Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d 344 (Minn. 1974), cert. denied, 421 U.S. 988, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975), the court found no facts relating to the composition of the affected class. Instead, the court interpreted the primary effects test of Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), to be, in fact, an “any effects” test. Minnesota Civil Liberties Union v. Minnesota, 224 N.W.2d at 353. This application of strict neutrality theory resulted in a finding of unconstitutionality. See generally L. Tribe, American Constitutional Law § 14-4 at 821 (1978). A subsequent attempt by the same plaintiffs to rely on the same theory in challenging another portion of the same statute in federal court failed for lack of a showing of primary effect. Minnesota Civil Liberties Union v. Roemer, 452 F.Supp. 1316 (D.Minn.1978).
. R.I.Gen.Law § 16-23-2.
. A fiscal note is the legislature’s estimate of the cost of implementing the bill and is part of the legislation.
. R.I.Gen.Law § 16-21-1 et seq.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
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songer_trialpro
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
GAY GAMES, INC., v. SMITH.
No. 8068.
Circuit Court of Appeals, Seventh Circuit.
Jan. 28, 1943.
Rehearing Denied Feb. 20, 1943.
Walter E. Barton, of Washington, D. C. (George G. Rinier, of Indianapolis, Ind., of counsel), for appellant.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, John E. Garvey, and J. Louis Monarch, Sp. Assts. to the Atty. Gen., and B. Howard Caughran, United States Atty.,-of Indianapolis, Ind., for appellee.
Before EVANS, KERNER, and MIN-TON, Circuit Judges.
EVANS, Circuit Judge.
To recover a refund of manufacturer’s excise tax of $52,779.45, and interest, paid by plaintiff, from February 1, 1936, to July 31, 1938, to the defendant, this suit was brought. Trial was before a master, and later before the District Court, both of whom found for the defendant.
In the final analysis, the controversy narrows itself to a single issue, to-wit: Did plaintiff include the taxes it admittedly paid to the defendant, in the price of the article it sold to its customers? A better statement of the specific question upon which the foregoing issue turns, is this: Does the evidence support the finding of the District Court that plaintiff failed to establish the necessary fact that it did not include the taxes in its cost price to its customers ?
That plaintiff paid the taxes, assessed under Section 609 of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Acts, page 612, is admitted. TKe amount thus paid is not in dispute. The nonapplicability of the tax to plaintiff’s product is not here questioned. Plaintiff’s right to recover under Sec. 3443 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code § 3443 is, by the undisputed evidence, confined to one issue — sufficiency of plaintiff’s proof that it did not include the tax in the price of the article when it sold the same to its customers.
The credit and refund section pertinent to this controversy reads: “No overpayment of tax under this chapter shall be credited or refunded * * * unless the person who paid the tax establishes * * * that he has not included the tax in the price of the article with respect to which it was imposed, or collected the amount of tax from the vendee. * * * ”
Plaintiff argues that its proof affirmatively and conclusively shows that it did not include the taxes in its sales price when selling its product. It also contends that the master, who tried the issues and saw the witnesses, made specific findings which now make any other conclusion impossible. It finally contends that the court necessarily avoided or refused to follow these specific findings, or, in effect, rejected them in its more general findings and conclusions, which can not be reconciled with the master’s specific findings. This was contrary to Rule 53(e) (2) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
In weighing this contention and examining the findings of both the master and the court, it is noticeable that the findings of the master are much more voluminous and detailed than those of the court. It was the practice of Master Ward to state in detail the evidence on which fact issues were based and then give his reasons for the findings he made. He also divided ultimate fact findings into evidentiary findings upon which his ultimate findings of fact depended. Such a practice is at times highly advantageous and helpful. The trial court, however, is not required to pursue the same order or go into the same detail in its findings. The Rules of Civil Procedure (Rule 52) do not require the court to do more than to cover the ultimate fact issues. This, Judge Baltzell did. His findings are complete, although they are only one-fourth the length of the document called findings of the master, but which include, as before stated, a statement and discussion of the evidence.
While plaintiff presented evidence of its sales before and after it ceased billing the tax as a separate item, and charts of its transactions from which it rather persuasively argues that it did not include the taxes in its sales price, this evidence does not conclusively tell the whole story. Defendant presents equally persuasive testimony showing plaintiff’s price lists of April, 1935, and November, 1935. It was between these two dates that plaintiff changed its policy from one of treating the tax as a separate item and one “for the convenience of our customers in computing prices on orders” which did not set forth the excise tax separately. These price lists on certain cards (plaintiff’s business was making and selling baseball tally cards, tip cards, and jackpot tip cards, etc.) are here stated, taking two illustrations.
April, 1935 — 1 card 50^ — 6 cards $2.75— 1 dozen cards $5.
On Nov. 20th, 1935, when the change in its practice in re excise tax went into effect, the same cards were listed:
1 card 55‡ — 6 cards $3.00 — 12 cards $5.-50.
“Football 29 tally cards” were quoted in the April 1, 1935 price list, to which 10% tax was to be added, as follows:
$1.25 per dozen — $6. per six dozen — $11 per gross.
On November 20, 1935, when the price list' relieving the purchaser from paying any tax, was quoted, the prices were raised as follows:
$1.35 per dozen — $6.60 per six dozen— $12 per gross. .
This evidence strongly supports the court’s finding. It makes impossible a holding by us that the proof conclusively established that plaintiff did not include the tax in the price at which the article was sold.
Left only for consideration is plaintiff’s contention that the master’s specific fact findings support its position, and the court was required to accept them. Our construction of the findings leaves no dispute or conflict between them. In other words, we reject plaintiff’s construction, and the effect, of the master’s specific findings referred to by plaintiff.
The judgment is affirmed.
The master’s general findings and conclusions were against the plaintiff, but appellant argues that these findings were inconsistent with the master’s more specific findings on evidentiary but determinative issues.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Theodore H. CASE, Individually and as Co-Executor of the Estate of Natalie C. Case, Deceased, Hart B. Morrison and Margaret M. Morrison, Plaintiffs-Ap-pellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
Nos. 78-3330 to 78-3333.
United States Court of Appeals, Sixth Circuit.
Argued June 18, 1980.
Decided Oct. 30, 1980.
Rehearing Denied Dec. 5, 1980.
James R. Williams, U. S. Atty., James C. Lynch, Asst. U. S. Atty., Cleveland, Ohio, David J. Curtin, M. Carr Ferguson, Gilbert Andrews, Mike Paup, Gilbert S. Rothen-berg, Tax Div., Appellate Section Dept, of Justice, Washington, D. C., for defendant-appellant, cross-appellee.
Paul A. Weick, Weick & Gibson Co., L. P. A., Cuyahoga Falls, Ohio, for plaintiffs-ap-pellees, cross-appellants in Nos. 78-3330 and 78-3331.
John Kennedy Lynch, Cleveland, Ohio, for plaintiffs-appellees, cross-appellants in Nos. 78-3332 and 78-3333.
Before ENGEL, KEITH, and BOYCE F. MARTIN, Jr., Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
This controversy involves two taxpayers’ suits for refunds of federal income tax paid for the year 1970. Both the United States and the taxpayers have brought appeals from the judgment of the District Court.
We must determine whether gains realized from the disposition of certain real estate should be characterized as long-term capital gain, short-term capital gain, or ordinary income.
I. The Facts
On June 1, 1969, taxpayers Morrison and Case formed a partnership. Their purpose was the acquisition of real estate near Geneva, Ohio, in an area adjacent to Lake Erie and Geneva State Park. Long-range plans included transfer of the properties purchased to a corporation, which the taxpayers would form to develop and sell residential units and a recreational complex. An alternate possibility was resale of the properties in bulk to another, larger developer. Taxpayer Morrison had many years experience marketing real estate in Ohio; taxpayer Case was president of the local telephone company and well-qualified to handle arrangements for bringing utilities to the proposed project.
The partnership’s first purchase was a 3.8 acre tract located on the shore of Lake Erie near the Geneva State Park boundary. “The Behner property” contained about a dozen summer cottages. By declaration of trust dated June 27, 1969 and a warranty deed of June 30, 1969, Herbert and Nona Behner conveyed the property to the Northeastern Ohio National Bank as trustee for beneficiaries Morrison and Case and their wives. The price was $72,800, which the conveyors received from the bank.
The second acquisition was the “Johnson property,” an 8.2 acre tract containing several cottages and a few permanent homes. It was located west of the Behner property. On February 16, 1970, Morrison and Case contracted to purchase the property from George and Catherine Johnson for a price of $150,000. The taxpayers made a $2,000 down payment and agreed to pay an additional $18,000 on or before July 15, 1970. The balance of $130,000 was due on or before January 15, 1971. The contract provided 1) that title would not be transferred until the purchase price was paid in full; 2) that the taxpayers would obtain possession sixty days after the transfer of title; 3) that in lieu of interest on the deferred payments, the Johnsons would receive all rents and profits from the property until passage of title; and 4) that taxes, assessments and insurance would be prorated between the parties as of the date of transfer.
On March 15, 1970, the taxpayers acquired a third tract from Jack and Inez Nightwine. The Nightwine property adjoined the Johnson property and also contained summer cottages. The partnership obtained, for $64,456.95, the Nightwines’ rights under a 1969 purchase contract. Toward that sum, the taxpayers paid $500 on July 20, 1970 and $15,500 on October 15, 1970. They received immediate possession and assumed responsibility for all taxes and assessments.
Morrison, acting individually, contracted to purchase a fourth parcel of land on January 15, 1970. The 162-acre tract had been owned since 1965 by the “B’tawn Beach Club” partnership, consisting of taxpayer Case and his three brothers. Case did not participate in Morrison’s purchase of the B’tawn property, apparently because he wished to avoid a conflict of interest.
The B’tawn contract provided for a total price of $425,000, to be allocated among a $10,000 down payment, a payment of $290,-000 due on or before December 1, 1970 and a final payment of $125,000 to be made on or before December 31, 1970. Morrison did not, however, adhere to these terms. Instead, upon execution of the contract, he gave the B’tawn partnership a promissory note for $10,000; he did not make payment on the note until November 23, 1970. The B’tawn contract provisions governing deferred passage of title and possession were very similar to those contained in the Johnson contract.
The record indicates that the taxpayers attempted to acquire other property contiguous with the four tracts described above. Mr. Case testified, “you can’t sell to some development company in New York and Chicago and have little spots here and little spots there that are missing.” At the same time, however, the taxpayers explored the possibility of developing the property themselves; tentative plans called for the formation of a corporation to be financed by outside investors. Toward this end, they engaged an artist to prepare preliminary sketches of the proposed “Shoreland Acres,” consulted an engineer, and opened negotiations with utility companies for the provision of services to the project.
On September 22, 1970, the State of Ohio announced that the United States Department of the Interior had approved expenditures of up to $1.5 million for the expansion of nearby Geneva State Park. Shortly thereafter, the taxpayers received notice of the State’s intention to acquire the Behner, Johnson, Nightwine, and B’tawn tracts. We outline, briefly, the transactions which followed this notice of condemnation.
On November 27, 1970, the taxpayers instructed the Northeastern Ohio National Bank, as trustee, to grant the State of Ohio a thirty-day option to purchase the Behner property for $175,000. The State exercised this option and on December 7, 1970, the bank transferred title to the State. On December 29, 1970, the State issued a warrant to the bank in the amount of $175,000. The bank discharged the deed of trust on the property and paid the remainder of the $175,000 to the taxpayers.
On November 27, 1970, the taxpayers granted the State a similar option to purchase the Johnson property for $334,000. The State exercised this option on the date it was granted. On December 7, 1970, the Johnsons deeded the property to the taxpayers, who, in turn, transferred title to the State on December 11, 1970. Upon receipt of $334,000 from the State, the taxpayers paid the Johnsons the approximately $110,-000 still owning on the original purchase agreement.
Also on November 27,1970, the taxpayers granted the State an option to purchase the Nightwine property for $139,000. This sale was completed on December 11, 1970, whereupon the taxpayers paid the Night-wines the remaining balance due of $48,-457.
Morrison handled the sale of the B’tawn property in a somewhat different fashion. On December 4, 1970, the B’tawn Beach Club partnership conveyed title of the property to Howard Nazor as trustee for Morrison. Nazor was instructed not to convey title to Morrison until the latter paid the balance of $415,000 due on the original $425,000 price. The deed of trust was recorded December 11, 1970. On December 16, 1970, Nazor, as trustee for Morrison, granted an option to the State to purchase the B’tawn tract for $565,000. On December 17, before the B’tawn Beach Club partnership had received further payment from Morrison, Nazor conveyed both legal and equitable title to the state of Ohio. On December 29, 1970, the State issued a warrant for $565,000 to Nazor, who proceeded to pay the B’tawn Beach Club partnership the balance due on the original contract. He then distributed the remainder to Morrison.
The following chart summarizes the important points in the taxpayers’ real estate transactions:
II. The Controversy
In their respective income tax returns for 1970, Morrison and Case reported the gains realized from the sales of their properties as long-term capital gains. In the course of an audit, the Internal Revenue Service decided that the gains should have been reported as ordinary income. Accordingly, the Service assessed tax deficiencies against Morrison in the amount of $93,094.62 plus interest, and against Case in the amount of $53,080.56 plus interest. Each taxpayer paid his deficiency in full and filed a timely claim for refund. The Service denied both claims and Morrison and Case initiated separate actions in District Court.
Before the two suits were consolidated the United States filed a motion for partial summary judgment against Morrison. It contended that he had held, for tax purposes, the Johnson and B’tawn properties for less than six months; even if he were entitled to report his gains on the sale of these tracts as capital gains, those gains would be taxable on a short-term rather than a long-term basis. In support of its motion, the United States pointed out that Morrison’s tax liability under a short-term capital gain theory would be identical to his liability if the gains were characterized as ordinary income.
The District Court concluded that Morrison had, in fact, held the Johnson property for less than six months; to that extent, it granted the government’s motion for summary judgment. Morrison v. United States, 449 F.Supp. 654 (N.D.Ohio 1977). The Court declined to rule on the appropriate treatment of Morrison’s gain from the sale of the B’tawn property until it heard further evidence.
After trial, for which Morrison’s and Case’s suits were consolidated, the District Court ruled that the taxpayers’ sales of all four tracts generated capital gain and not ordinary income. Morrison v. United States, 449 F.Supp. 663 (N.D.Ohio 1977). The Court’s reasoning can be summarized as follows: on September 22, 1970, when Morrison and Case received formal notice of the state’s intention to acquire their properties, the taxpayers held their real estate for sale in the ordinary course of business; at the time of the actual sales to the state, however, the taxpayers held the properties for investment purposes and therefore realized gain on the disposition of capital assets.
In its discussion of the six-month holding period required for long-term capital gain taxation, the Court ruled that Case’s gain on the sale of the Johnson tract and Morrison’s gain on the sale of the B’tawn property failed to qualify as “long-term” and were, therefore, subject to “short-term” tax treatment. According to the Court, the taxpayers neither assumed the burdens nor enjoyed the benefits of ownership of these two properties until they actually obtained title to them. As noted above, this event did not take place until a few days before title was conveyed to the State.
The government did not contest that the taxpayers had held the Behner and Night-wine tracts for more than six months. Accordingly, the Court found that the gain realized on the sale of these properties was long-term capital gain and that the taxpayers were entitled to a partial refund.
We believe that the District Court achieved the correct result insofar as it determined the amount of tax Morrison and Case ultimately had to pay. However, we have profound misgivings about the rationale underlying the decision below.
III. The Issue on Appeal
On appeal, the government contends that the taxpayers held their properties “for sale to customers in the ordinary course of business.” If this position is correct, the taxpayers should have reported their gain from the disposition of the properties as ordinary income.
Section 1202 of the Internal Revenue Code (26 U.S.C.) provides preferential tax treatment for long-term capital gain. During the tax year 1970, Section 1222(3) defined long-term capital gain as gain derived from the sale of a “capital asset” held for more than six months. Section 1221(1) offers a negative definition of “capital asset”: it is property which does not fall within certain enumerated categories, among them “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade of business.”
The taxpayers, of course, maintain that none of the exceptions set out in Section 1221(1)- apply to the four tracts of real estate described earlier. If they are correct, then their properties were, by definition, capital assets. Furthermore, argue the taxpayers, for purposes of federal taxation, they “held” all four properties for more than six months and were therefore entitled to report their gains as long-term capital gains.
In our review, we adhere to the rule that the preferential capital gains provisions in the tax code are to be narrowly construed. Corn Products v. Commissioner, 350 U.S. 46, 52, 76 S.Ct. 20, 24, 100 L.Ed. 29 (1955); Omer v. United States, 329 F.2d 393, 395 (6th Cir. 1964). In consequence, the taxpayers must overcome a heavy burden of proof in order to prevail.
IV. The Standard of Judicial Review
The government contends that we need not confine ourselves to a “clearly erroneous” standard of review in this case. In support of its position, it cites Third, Fourth, and Fifth Circuit decisions which indicate that the determination of whether the taxpayers held their properties “for sale in the ordinary course of business” is one of law, or “ultimate fact.” Jersey Land and Development Corp. v. United States, 539 F.2d 311, 315 (3rd Cir. 1976); Turner v. Commissioner, 540 F.2d 1249, 1252 (4th Cir. 1976); Biedenharn Realty Co. v. United States, 526 F.2d 409, 416 (5th Cir. 1976). This characterization of the issue, in effect, permits an appellate court to re-examine the evidence without giving customary deference to the original findings of the trial court.
The authorities cited by the government are undoubtedly well-reasoned; however, we are resolved to adhere to the principles expressed in Philhall v. United States, 546 F.2d 210, 214 (6th Cir. 1976), and, most recently, in Gartrell v. United States, 619 F.2d 1150 (6th Cir. 1980). We held in those cases that the determination of whether property is held “primarily for sale” depends entirely upon judicial ascertainment of the taxpayer’s intent. It is, therefore, an ordinary issue of fact, subject to reversal on appeal only if we believe the District Court’s findings were “clearly erroneous.”
V. Review of Authorities
The District Court found: 1) that the taxpayers held their properties primarily for sale to customers in the ordinary course of business; 2) that the threat of condemnation changed this purpose; but 3) that the taxpayers held the Johnson and B’tawn tracts for an insufficient period of time to qualify for long-term capital gains treatment.
The taxpayers maintain: 1) that there was no evidence to support the District Court’s first finding; 2) that the threat of condemnation confirmed the “capital” nature of their gains from sale of the properties; and 3) that they held the Johnson and B’tawn tracts for more than six months. They offer several arguments in support of the third assertion: first, that Ohio law of equitable conversion substantiates their claim to a sufficient holding period; second, that they obtained the “benefits and burdens of ownership” more than six months prior to the state’s purchases; and third, that the purchase contracts gave them “options” within the meaning of Section 1234(a) of the Code.
A. The purpose for which the taxpayers held their properties.
In Matthews v. Commissioner, 315 F.2d 101, 107 (6th Cir. 1963), we enumerated eight factors to consider .in deciding whether property is held “primarily for sale.” They are: 1) the purpose for which the property was acquired; 2) the purpose for which the property was held; 3) the extent of improvements made to the property; 4) the frequency, number, and continuity of sales; 5) the nature and substantiality of the transactions; 6) the nature and extent of the taxpayer’s dealings in similar property; 7) the extent of advertising to promote sales; and 8) whether or not the property was listed for sale either directly or through brokers. See also Broughton v. Commissioner, 333 F.2d 492, 495 (6th Cir. 1964); Gartrell v. United States, supra at 1155-56.
In this case, the taxpayers testified that they acquired the properties in order to “hold ... and develop” them. As we have already noted, they hoped to transfer the properties to a corporation, to be financed and fifty percent owned by two outside investors. The government, in its argument, emphasizes repeatedly that this plan to transfer the real estate to a corporation at costs negates any investment motive on the taxpayers’ part. This interpretation ignores that aspect of the proposed transfer which represents, quite simply, sound tax planning. Transfer of the properties at cost instead of at an appreciated figure would have the effect of postponing recognition of a taxable gain. That the taxpayers intended to use this legitimate means of avoiding an imminent tax scarcely obviates the possibility that they did, in fact, regard their properties as an investment.
Furthermore, the taxpayers did not make improvements to any of the properties; they merely maintained them in their existing condition. The properties were neither advertised nor listed for sale, and no sales in fact occurred until the state issued its condemnation notices.
The District Court was impressed with Morrison’s considerable experience in marketing Ohio real estate; it apparently inferred from his background that he was holding these particular properties primarily for sale. The government introduced no evidence whatsoever to support such a finding-a significant omission, since the Code specifically contemplates that dealers may segregate certain transactions in property similar to their stock in trade in order to qualify for capital gains tax treatment. 26 U.S.C. § 1236(a). Buono v. Commissioner, 74 T.C. No. 15, 1980 Tax Ct.Rep., Dec. 36,-925; Boykin v. Commissioner, 344 F.2d 889, 894 n. 8 (5th Cir. 1975).
In light of tne foregoing observations, we are constrained to hold that there was insufficient evidence to support the District Court’s conclusion that the taxpayers’ properties were held “primarily for sale.” Cf. Appeal of Bush, 610 F.2d 426 (6th Cir. 1979).
B. The effect of the threat of condemnation.
The District Court found that the taxpayers changed their purpose in holding the properties; under threat of condemnation, they became investors holding capital assets. The .Court based its decision on Ridgewood Land Co., Inc. v. Commissioner, 477 F.2d 135 (5th Cir. 1973); Commissioner v. Tri-S Corp., 400 F.2d 862 (10th Cir. 1968); and a Tax Court case, later reversed as Juleo, Inc. v. Commissioner, 483 F.2d 47 (3rd Cir. 1973).
Our reversal of the District Court’s ruling that the taxpayers initially held their property “primarily for sale” eliminates the need to consider the effect of the condemnation notice on these particular litigants. In view of the approach taken below, however, we wish to clarify our position on the legal issue lest this case engender confusion in future cases before the courts of this Circuit.
We agree with the Third Circuit’s rationale for reversing the Tax Court in Juleo, Inc., supra; as a corollary, we reject the suggestion that, for federal tax purposes, mere receipt of a condemnation notice automatically transforms property held “primarily for sale” into investment property. As the government notes in its brief, any property owner who receives a notice of condemnation presumably abandons whatever plans he originally entertained in favor of a new, albeit temporary, reason for holding the condemned property. Common sense application of established tax principles mitigates against giving this circumstance conclusive effect. Except as specifically provided by statute, cf. 26 U.S.C. § 1033, we decline to determine the tax consequences of a sale solely on the strength of a finding that the sale was involuntary.
Ordinarily, the characterization of an asset as “capital” or “non-capital” requires an analysis of several factors; the preceding section of this opinion illustrates just such an exercise. The addition of a condemnation notice to this calculus merely injects one more element to be considered; it does not eliminate the calculus altogether.
C. Whether the taxpayers held the B’tawn and Johnson properties for the six-month period prerequisite to preferential long-term capital gain treatment.
On appeal, the taxpayers argue that the District Court erred in concluding that gains realized on the sale of the B’tawn and Johnson properties were ineligible for taxation at the long-term capital gain rate.
They argue, first, that Ohio law of equitable conversion substantiates their claim to a sufficient holding period. Generally speaking, “State law determines what property rights and interests a taxpayer has, but federal law determines the consequences of such rights and interests for tax purposes.” Coin am v. Commissioner, 263 F.2d 119 (5th Cir. 1959).
The state law argument can be summarized as follows: in Ohio, the principle of equitable conversion invested the taxpayers with an equitable interest in the two properties. We are asked to treat this equitable interest as a capital asset which, when sold, yielded capital gains. The taxpayers assert that they obtained this equitable interest at the time they signed the purchase contracts for the two tracts, more than six months prior to disposition of the properties.
This argument is undoubtedly ingenious; however, Ohio case law does not support its application to the present facts. We quote from Sanford v. Breidenbach, 111 Ohio App. 474, 173 N.E.2d 702 (1960): “Equitable conversion does become effective in those cases in which the vendor has fulfilled all conditions and is entitled to enforce specific performance, and the parties, by their contract, intend that title shall pass upon the signing of the contract of purchase.” (Emphasis added.)
The B’tawn and Johnson contracts, described in Part I of this opinion, clearly intended no such result; on the contrary, the sellers specifically reserved title to the property until they received payment in full. Since payment took place only days before disposition of the properties, the taxpayers’ reliance on the principle of equitable conversion is misplaced.
In the alternative, the taxpayers advance the “practical” test announced by this Court in Commissioner v. Baertschi, 412 F.2d 494 (6th Cir. 1969); and Dettmers v. Commissioner, 430 F.2d 1019 (6th Cir. 1970). In those cases we held that “ownership of real property is acquired either upon delivery ... of the deed or upon transfer of the benefits and burdens of ownership, whichever occurs first.” Dettmers, supra at 1023. The taxpayers point to the fact that they maintained the properties and, in the case of the Johnson tract, applied rental income to offset the interest owed the Johnsons; from this, they ask us to infer “benefits and burdens of ownership” of a character sufficient to sustain a favorable ruling. Again, however, the purchase contracts are clear. Virtually all the “benefits and burdens of ownership” remained in the vendors until the purchase price was fully paid.
Finally, the taxpayers contend that the purchase contracts created options to buy. 26 U.S.C. § 1234(a) accords gains or losses from “privileges ■ or options to buy” the same tax treatment as the property subject to those options. Inasmuch as the properties themselves would have been capital assets in the taxpayers hands, they urge us to treat these “options” as we would treat the underlying properties. The “options” the taxpayers claim to possess would, of course, date back to the signing of the purchase contracts.
Our review of the meaning of an “option” for purposes of Section 1234 convinces us that the taxpayers did not, in fact, possess “options” within the meaning of the statute. What they did possess were bilateral contract rights, to which Section 1234 does not, by its terms, apply. In a scholarly analysis of this issue, the Court of Claims examined the language, legislative history, and Revenue Rulings pertinent to Section 1234; it concluded that an “option” is, for purposes of the statute, a very narrow concept. United States Freight Co. v. United States, 422 F.2d 887, 894-5, 190 Ct.Cl. 725 (1970). We agree, and affirm the District Court’s decision against the taxpayers’ claim to a six-month holding period.
VI. Conclusion
As we have already noted, this opinion modifies the rationale but not the actual result of the trial court’s decision. The District Court’s order directing the government to issue the taxpayers a partial refund of federal income taxes, is therefore, affirmed.
. The District Court’s approach is logically inconsistent with the treatment the tax laws accord judicially enforceable payments in general, and condemnation proceeds in particular. Thus, amounts received in settlement of a claim for lost profits are taxable as the profits would have been taxed, as ordinary income. Raytheon Production Corp. v. Commissioner, 144 F.2d 110 (1st Cir.), cert. denied, 323 U.S. 779, 65 S.Ct. 192, 89 L.Ed. 622 (1944). If the claim is for damage to a capital asset, the amount received in settlement is treated as a return of capital, taxable at capital gain rates if the recovery exceeds the asset’s basis. Farmers & Merchants Bank v. Commissioner, 59 F.2d 912 (6th Cir. 1932).
With respect to condemnation proceeds, the Code envisions the possibility of ordinary income treatment of gain realized on condemnation of inventory. Section 1231(a) provides in part for capital gain treatment of gains recognized upon condemnation of “property used in the trade or business.” Section 1231(b)(1)(B), which defines such property, however, provides as well that real estate which is held primarily for sale cannot qualify for capital gain under Section 1231.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_appel1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
In re SMITH. MILLER v. EHRLICH.
Circuit Court of Appeals, Second Circuit.
December 2, 1929.
No. 171.
George M. Glassgold, of New York City (Arthur Miller, of New York City, of counsel), for appellant.
Abraham J. Halprin, of New York City (Irving Barry, of Brooklyn. N. Y., of counsel), for appellee.
Before MANTON, AUGUSTUS N HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The bankrupt, Isaac Smith, was the sole stockholder of the Israh Building Corporation. At the time the petition in bankruptcy was filed, the corporation owned certain real property in New York City, which was sold shortly after Smith’s bankruptcy. The net proceeds of sale, amounting to $1,676.07, were turned over to the trustee in bankruptcy upon the theory that these moneys were general assets of the insolvent estate, because the bankrupt was the equitable owner of all the property of the corporation. Prior to the bankruptcy the claimant, Miller, drew plans for a building to be erected on the property belonging to the corporation and filed them 'with the building department of the city of New York. These plans were rejected, whereupon he drew another set of plans, which were filed thereafter. The plans were ordered by Smith, who was at the time the president of the corporation. Miller filed the usual architect’s affidavit with the building department, in which he made application on “behalf of Isaac Smith, owner, *. * * for the approval of such * * * plans.” This affidavit was accompanied by an application signed by Smith himself, in which he swore that he was the owner of the premises on which the building was to be erected. Miller testified that he was informed by Smith that the latter was the president of the corporation and that the corporation owned the property.
After the bankruptcy occurred, Miller filed no proof of claim against the bankrupt estate and took no steps to obtain his pay (except by filing a mechanic’s lien just before the sale of the land) until about a year afterwards, when he sued the corporation in the Municipal Court and obtained a judgment by default for $1,135 for his alleged services to the latter. Execution was issued to a city marshal and returned unsatisfied. Thereupon Miller petitioned the bankruptcy court for payment of this judgment to the marshal out of the proceeds of sale of corporate property in the hands of the trustee.
The referee held that Miller’s claim, against the corporation was an afterthought that he contracted solely with Smith, and never looked to the corporation until he found the former was insolvent and could not pay him. He accordingly dismissed the claim, and the District Judge affirmed the order of the referee.
It is manifest that the court below proceeded upon a wrong theory. It could not question the validity of the judgment obtained by Miller against the Israh Building Corporation. If the trustee wished to avoid the effeet of that judgment, he doubtless might as sole stockholder set machinery in motion to require the corporation to apply to the state court to open its default, and thus attempt to defeat Miller’s claim. He took no such step, but relied on testimony which he thought indicated that Miller contracted only with Isaac Smith as an individual. As long as the judgment stood, it conclusively established Miller’s claim against the corporation, and all evidence that he did not contract with it was incompetent. In re Howard (C. C. A.) 135 F. 721.
Thus we have a ease where corporate funds were turned over to the trustee in bankruptcy as sole owner of the corporate stock, though the indebtedness of the corporation to Miller was outstanding and unsatisfied. Such a transfer, even though made to a trustee, who did not know of Miller’s claim, was, under familiar principles, void against creditors of the corporation. It is manifest that the proceeds of corporate property cannot”be treated as assets of the bankrupt estate to the prejudice of Miller. It makes no difference whether a corpora^ tion having no creditors might distribute its property to its sole stockholder. At least to the extent of Miller’s judgment the property under consideration here was subject to the payment of his claim. Consequently the trustee cannot distribute the proceeds of the Israh Building Corporation among the creditors of the bankrupt estate, or use them for general expenses, except so far as they may exceed the amount of corporate creditors. This being so, the question remains as to the proper disposition of the funds in the hands of the trustee in bankruptcy.
Under section 679 of the Civil Practice Act of the state of New York an execution creditor subjects the goods and chattels of his judgment debtor to levy by virtue of the execution from the time of its delivery to the proper officer to be executed. Home Bank v. Brewster & Co., 15 App. Div. 338, 44 N. Y. S. 54. , But such an inchoate lien is only imposed upon tangibles, and not upon ehoses in action. McNeeley v. Welz, 166 N. Y. 124, 59 N. E. 697. Accordingly the mere issuance of the execution imposed no lien on behalf of Miller upon the moneys standing to the credit of the trustee in bankruptcy. Some further suit or proceeding in aid of the execution was necessary under the New York statutes to reach and apply these assets.
Section 792 of the New York Civil Practice Act empowers the judge of the state court, who has granted an order for examination in supplementary proceedings, to make an order upon such notice as he deems best, or, without notice, “permitting” the person indebted to the judgment debtor to pay to a sheriff designated in the order a sum on account of the alleged indebtedness not exceeding the sum which will satisfy the execution. An order for examination in supplementary proceedings was apparently made by the state court after the return of Miller’s execution unsatisfied. The further steps to be taken would not seem to be difficult in such a situation.
While it is necessary for the bankruptcy court, as well as the state court, to authorize the payment before it can be actually made under section 792, supra, yet if the state court order is obtained, and the execution is thus extended to the proceeds of sale of the corporate real estate, except for the bar caused by the possession of the fund by the bankruptcy court, that bar should be at once removed. The transfer of corporate funds from the corporation to the trustee in bankruptcy, which confessedly was without consideration, may properly be treated as constituting a debt from the trustee to the judgment debtor corporation, so as to subject it to levy under section 792 with the consent of the bankruptcy court.
Another less simple method of reaching the proceeds in the hands of the trustee would be through a receiver of the corporation appointed in an action in the state court for a sequestration of its property brought under section 100 et seq. of the General Corporation Law of New York (Consol. Laws, c. 23). This way would seem to be unnecessarily cumbersome, unless there are creditors of the corporation other than Miller who ought to share in its assets.
If it is shown to the District Court that there are no creditors of the corporation, other than Miller, perhaps a simpler procedure would be an order of the District Court, made on the consent of the trustee and the corporation, for the payment by the trustee to the city marshal of the amount of Miller’s judgment.
The trustee in bankruptcy should be directed to hold the proceeds of sale of the corporate real estate which are' in his hands pending a further application by Miller, or by a receiver of the Israh Building Corporation in sequestration, for distribution of the same. The time within which such application shall be made should be fixed by the United States District Court in bankruptcy.
Accordingly the petition of Miller is dismissed, without prejudice to a further application by Miller, or a receiver in sequestration, to reach and apply the proceeds of sale of the Israh Building Corporation which are in the hands of the trustee.
The order, as modified in accordance with the views expressed in this opinion, is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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