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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-07-00602/USCOURTS-ca10-07-00602-0/pdf.json | [
[
"Jan Hamilton",
"Petitioner"
],
[
"Stephanie Kay Lanning",
"Respondent"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JAN HAMILTON, Trustee,
Petitioner,
v.
STEPHANIE KAY LANNING,
Respondent.
07-602
BAP No. KS-07-067
Bankr. No. 06-41037
ORDER DENYING PERMISSION
TO APPEAL
Filed September 5, 2007
Before O’BRIEN, TYMKOVICH and GORSUCH, Circuit Judges
This matter is before the court on a Petition for Permission to Appeal, filed
pursuant to 28 U.S.C. § 158(d)(2), by the Chapter 13 Trustee. Upon
consideration of the petition and the file as a whole, the request for permission to
appeal is denied.
Entered for the Court
ELISABETH SHUMAKER, Clerk of Court
by: Christine Van Coney
Counsel to the Clerk
Appellate Case: 07-602 Document: 010126559 Date Filed: 09/05/2007 Page: 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_99-cv-06112/USCOURTS-caed-1_99-cv-06112-2/pdf.json | [
[
"Ronald C. Cook",
"Petitioner"
],
[
"William Duncan",
"Respondent"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
RONALD C. COOK, )
)
Petitioner, )
)
v. )
)
)
WILLIAM DUNCAN, Warden, )
)
Respondent. )
)
___________________________________ )
CV F 99-6112 WMW HC
ORDER DENYING MOTION
FOR CERTIFICATE OF
APPEALABILITY
[Doc. 91]
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On March 20, 2006, the undersigned issued a Memorandum
Opinion and Order denying the petition for writ of habeas corpus. Judgment for Respondent
was entered the same day.
On April 12, 2006, Petitioner filed an application for a certificate of appealability.
The controlling statute, 28 U.S.C. § 2253, provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district
judge, the final order shall be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the
Case 1:99-cv-06112-WMW Document 93 Filed 04/17/06 Page 1 of 2
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validity of a warrant to remove to another district or place for commitment or trial a
person charged with a criminal offense against the United States, or to test the
validity of such person's detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from--
(A) the final order in a habeas corpus proceeding in which the detention complained
of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant
has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific
issue or issues satisfy the showing required by paragraph (2).
In the present case, the court finds that Petitioner has failed to carry his burden of
making a substantial showing of the denial of a constitutional right. Accordingly,
Petitioner’s request for a certificate of appealability is HEREBY DENIED.
IT IS SO ORDERED.
Dated: April 14, 2006 /s/ William M. Wunderlich
bl0dc4 UNITED STATES MAGISTRATE JUDGE
Case 1:99-cv-06112-WMW Document 93 Filed 04/17/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-08-03920/USCOURTS-ca8-08-03920-0/pdf.json | [
[
"Mark Adams",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | 1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
2
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3920
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Mark Adams, * Eastern District of Missouri.
*
Appellant. *
___________
Submitted: December 16, 2009
Filed: May 11, 2010
___________
Before RILEY, Chief Judge,1
WOLLMAN, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
A jury found Mark Adams guilty of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The district court2
sentenced Adams to 115
months' imprisonment. Adams appeals his conviction, arguing the district court
abused its discretion in admitting certain evidence and clearly erred in rejecting his
challenge under Batson v. Kentucky, 476 U.S. 79 (1986), to the government's
Appellate Case: 08-3920 Page: 1 Date Filed: 05/11/2010 Entry ID: 3663278
-2-
peremptory strikes of African American venire persons. For the following reasons,
we affirm.
I. Background
A grand jury returned a one-count indictment charging Adams with being a
felon in possession of a firearm "on or about March 14, 2008." At trial, Adams
stipulated to his felon status. The government's main witnesses were St. Louis police
officer Daniel Fox and one of Adams's roommates, Lamario Thomas.
Fox testified that he began investigating Adams in March 2008 based on
information that Adams was distributing drugs out of the house he shared with
Thomas and several other individuals. Fox also had information that Adams
possessed firearms on the premises and determined Adams had a prior felony
conviction. On three occasions between March 7 and March 10, 2008, Fox conducted
surveillance of the residence and witnessed Adams engage in what he believed, based
on his experience, to be a total of seven "hand-to-hand" drug transactions with
different individuals. On March 12, Fox obtained a warrant for the house to search
for drugs and firearms. The following day, Fox was patrolling in the vicinity of the
house and observed Adams walking nearby. Fox approached Adams, explained he
had a search warrant, detained Adams on an outstanding traffic warrant, searched him,
and transported him back to the house.
Fox and other officers then executed the search warrant. In a second-floor
bedroom, Fox discovered a loaded semiautomatic rifle lying on the floor next to the
bed. On top of a speaker next to the bed, Fox found state identification paperwork,
bearing Adam's name and photograph, but a different address. From a shoebox on top
of a dresser, Fox recovered an AutoZone receipt with "M. Adams" on it and two bags
of ammunition, one of which contained rounds consistent with the rifle. Officers did
not recover drugs during the search. Adams was arrested on the additional charge of
being a felon in possession of a firearm.
Appellate Case: 08-3920 Page: 2 Date Filed: 05/11/2010 Entry ID: 3663278
-3-
Thomas confirmed Adams lived with him and testified that he observed Adams
possess the firearm at the house on four occasions prior to Adams's arrest. According
to Thomas, Adams primarily used two rooms in the house: he slept and kept his
belongings in the second-floor bedroom where the gun, papers, and ammunition were
found and used another second-floor room, painted blue, for entertainment. In fall
2007, Thomas walked into the kitchen and observed the rifle on the kitchen table
within arm's reach of Adams. Adams yelled at Thomas to leave, and Thomas ran out
of the room. Later in 2007, Thomas entered the "blue room" without knocking and
saw Adams with the rifle close to him. Adams again yelled at Thomas to leave and
Thomas complied. In early 2008, Thomas heard rapid gunfire close to the back of the
house. Thomas went to the kitchen and saw Adams emerge from the basement with
the rifle. Adams apologized for scaring Thomas and promised to tell Thomas next
time he decided to fire the gun. Finally, around February 2008, Thomas again heard
a gun discharge in the backyard. Thomas met Adams when Adams returned to the
house. Concerned that the shots had attracted the attention of police patrolling the
area, Thomas exited the house and informed the police about what had occurred,
though he did not indicate whether the police investigated the incident that night.
Thomas testified that Adams was the only person he had seen possess or discharge the
rifle at the residence.
II. Discussion
A. Prior possession testimony
Adams challenges the district court's rulings concerning his prior possession
and discharge of the rifle. Before trial, the district court ruled the government could
introduce the testimony pursuant to Rule 404(b) as evidence of knowledge or intent
to possess the firearm. Citing our decision in United States v. Rock, 282 F.3d 548
(8th Cir. 2002), the district court determined at trial that the evidence of prior
possession was intrinsic to the charged offense. Although Adams does not concede
Appellate Case: 08-3920 Page: 3 Date Filed: 05/11/2010 Entry ID: 3663278
-4-
the evidence could be properly admitted under Rule 404(b), he primarily argues on
appeal that the district court erred in relying on Rock to treat the evidence as intrinsic
to the crime charged and to admit it without a limiting instruction. Reviewing for
abuse of discretion, United States v. Nadeau, 598 F.3d 966, 968 (8th Cir. 2010), we
find no error in the admission of this evidence.
In Rock, we held evidence that the defendant burgled a storage unit, carried
firearms to the residence he shared with his girlfriend, and displayed them to various
people on a date prior to his arrest "was not merely evidence of other wrongs" but
"directly supported" the government's charge that the defendant possessed the
firearms. Id. at 550–51. The defendant in Rock argued that while the display of the
weapons at other times was evidence of possession, the government did not need the
burglary evidence to prove its case. Id. at 551. We concluded that 404(b) did not bar
presentation of the entire episode because it "completes the story of the crime or
explains the relationship of the parties or the circumstances surrounding a particular
event." Id. Adams's argument that the prior possession testimony neither completes
the story nor gives a "total picture" of his possession of the rifle on March 14, 2008
misses the mark. This testimony is evidence of possession that "directly supports" the
charge.
Even if we were to find Rock inapplicable, we affirm nonetheless. See United
States v. Gettel, 474 F.3d 1081, 1087 (8th Cir. 2007) (court of appeals may affirm the
admission of evidence on any basis supported by the record). The government could
prove that Adams knowingly possessed the gun by showing he actually or
constructively possessed it. United States v. Byas, 581 F.3d 723, 726 (8th Cir. 2009).
Constructive possession may be established by evidence demonstrating ownership,
dominion, or control over a gun. Id. (quotation omitted). Here, the testimony indicates
that the same individual was in sole, knowing possession of the same rifle in the same
house on four successive occasions leading up to the charged date. Such testimony
therefore helps to establish his ownership or control of the gun. As the evidence
Appellate Case: 08-3920 Page: 4 Date Filed: 05/11/2010 Entry ID: 3663278
-5-
"tends logically to prove [an] element of the crime charged," it is not subject to Rule
404(b). Moore v. United States, 178 F.3d 994, 1000 (8th Cir. 1999). Such evidence
is still subject to Rule 403. Id. We have little trouble in concluding that Rule 403
would not bar the testimony here. How the defendant used and controlled the weapon
under similar circumstances is directly relevant to the charged offense. See Rock, 282
F.3d 548.
Adams next asserts that the prior possession testimony constructively amended
the indictment because it altered the date of the offense. The government counters
Adams is really arguing a variance arose instead. The difference between the two is
well established, though at times difficult to apply: "a constructive amendment
changes the charge, while the evidence remains the same; a variance changes the
evidence, while the charge remains the same." United States v. Stuckey, 220 F.3d
976, 981 (8th Cir. 2000). A constructive amendment primarily affects the defendant's
Fifth Amendment right to indictment by a grand jury and constitutes reversible error
per se, while a variance implicates the defendant's Sixth Amendment right to notice
of the nature of the charge and is subject to harmless error analysis. Id. Upon de
novo review, see id. at 979, we conclude neither constructive amendment nor a
variance occurred.
Because Adams argues the testimony changed the date of the offense, not the
offense charged, no constructive amendment occurred. See United States v. Howe,
538 F.3d 842, 850 (8th Cir. 2008), abrogated on other grounds by United States v.
Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009). We conclude no variance occurred
either, particularly because the government never wavered in its theory of the case at
trial: the location where the gun was found established Adams possessed the firearm
"on or about" the charged date and Thomas's testimony simply provided confirmation
of possession. See Howe, 538 F.3d at 851 (no variance where government's theory
did not change and allegedly problematic closing argument merely summarized that
theory); cf. United States v. Johnson, 934 F.2d 936, 941–42 (8th Cir. 1991) (no
Appellate Case: 08-3920 Page: 5 Date Filed: 05/11/2010 Entry ID: 3663278
-6-
constructive amendment for same reason). In sum, we reject Adams's arguments that
there was either a constructive amendment to or a variance in the indictment.
B. Surveillance and drug transaction testimony
Adams also argues that the district court should have limited Officer Fox's
testimony to the execution of the search warrant. According to Adams, the testimony
concerning the surveillance was irrelevant and unfairly prejudicial, and the testimony
of hand-to-hand transactions amounted to propensity evidence in violation of Rule
404(b). The district court had excluded baggies and a digital scale found in the same
room as the firearm out of a concern that the trial would become a narcotics case.
Adams reasons the same should have applied to other evidence of drug dealing as
well.
Assuming, without deciding, that the district court abused its discretion in
admitting this evidence, any error was harmless. United State v. LaDue, 561 F.3d 855,
859 (8th Cir. 2009) (improper evidentiary rulings are subject to harmless error
analysis and will be disregarded if there is no substantial influence on the verdict).
The properly admitted evidence established both Adams's dominion and control over
the location where the firearm was found out in the open as well as his dominion and
control over the weapon itself. We therefore reject Adams's arguments based on the
admission of this evidence.
C. Batson challenge
Adams also challenges the government's use of peremptory strikes against three
African American venire persons, jurors 1, 23, and 27. Batson applies to the federal
government through the Due Process Clause of the Fifth Amendment. United States
v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007). The Batson inquiry involves the
following three-step analysis:
Appellate Case: 08-3920 Page: 6 Date Filed: 05/11/2010 Entry ID: 3663278
-7-
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. Second, if that
showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question. Third, in light of the parties'
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
United States v. Morrison, 594 F.3d 626, 632 (8th Cir. 2010) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 328–29 (2003)). We review the district court's resolution
of a Batson challenge for clear error. United States v. Granados, 596 F.3d 970, 975
(8th Cir. 2010).
The district court determined that Adams established a prima facie case because
three of the six venire persons the government struck were African American and one
of those struck, juror 1, had not spoken during voir dire except to state where he lived
in response to the court's question. In response, the government, relying on the jurors'
answers to a questionnaire, explained that it exercised peremptory strikes against all
jurors who rented their homes out of a concern that they would have an insufficient
stake in the community. These challenges included jurors 1 and 27 as well as two
white jurors. The district court had randomly excused the remaining renter on the
venire panel. Additionally, the government stated that it struck juror 23 along with
another juror because they expressed dissatisfaction with law enforcement's response
to crimes committed against them.
The district court determined these explanations were race neutral, a finding
that we conclude was not clearly erroneous. An individual's status as a renter may
indicate he or she does not have substantial ties to the community. See United States
v. Carr, 67 F.3d 171, 175–76 (8th Cir. 1995). We have found a lack of attachment to
the community to be a valid reason to exercise a peremptory strike. United States v.
Gibson, 105 F.3d 1229, 1232 (8th Cir. 1997) (collecting cases). Furthermore, we have
stated that "[a] juror's expression of past dissatisfaction with law enforcement officers,
which could indicate potential bias against the prosecution, is a legitimate race neutral
Appellate Case: 08-3920 Page: 7 Date Filed: 05/11/2010 Entry ID: 3663278
3
The district court was troubled by the fact that the government used a facially
race-neutral rationale, renter status, to strike African American jurors, when, as the
district court noted, African Americans in St. Louis were more likely to rent than to
own their homes. This opinion should not be read to mean that a defendant can never
sustain a Batson challenge when the government advances a potential juror's renter
status and/or insufficient stake in the community as a race-neutral reason for a
peremptory strike. Instead, this case is an example of our limited scope of review. In
rejecting the challenge, the district court noted its belief that the prosecutors were
credible. Because a trial court's findings on a Batson challenge largely turn on an
evaluation of the prosecutor's credibility, the court of appeals gives great deference
to its conclusions. United States v. Roebke, 333 F.3d 911, 913 (8th Cir. 2003).
-8-
reason for striking potential jurors." United States v. Booker, 576 F.3d 506, 511 (8th
Cir. 2009); see also United States v. Brown, 560 F.3d 754, 763 (8th Cir. 2009); Gibson,
105 F.3d at 1232.
After the government articulated race-neutral reasons for striking AfricanAmericans, the burden returned to Adams to show pretext. Gibson, 105 F.3d at 1232.
Adams argued that the proffered reasons were pretextual because the government had
failed to ask follow-up questions that would probe the jurors' responses, particularly
regarding the renters' ties to the community. The district court acknowledged for the
record that, in St. Louis, African Americans were among those individuals more likely
to rent than to own their homes. Notwithstanding Adams's argument and despite
acknowledging a correlation between race and a lack of property ownership, the district
court held Adams had failed to show purposeful discrimination in the government's
exercise of peremptory strikes. Its rejection of the Batson challenge was not clearly
erroneous. See United States v. Davis, 154 F.3d 772, 782 (8th Cir. 1998) (no Batson
violation when the government failed to solicit certain information through voir dire
that nonetheless became known); United States v. Hart, 544 F.3d 911, 915 (8th Cir.
2008) (no Batson violation where all venire panel members similarly situated to
African Americans were struck).3
Appellate Case: 08-3920 Page: 8 Date Filed: 05/11/2010 Entry ID: 3663278
-9-
III. Conclusion
For the foregoing reasons, we affirm.
______________________________
Appellate Case: 08-3920 Page: 9 Date Filed: 05/11/2010 Entry ID: 3663278 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-14-01820/USCOURTS-ca8-14-01820-0/pdf.json | [
[
"Adetokunbo Olubunmi Adejumo",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1820
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Adetokunbo Olubunmi Adejumo
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: November 13, 2014
Filed: February 5, 2015
____________
Before MURPHY, MELLOY, and BENTON, Circuit Judges.
____________
MURPHY, Circuit Judge.
Adetokunbo Adejumo pled guilty to bank fraud and aggravated identity theft
and was sentenced to 124 months in prison. A year after he was sentenced, the United
States moved to amend the judgment. It sought to add a restitution obligation of $1.1
million; in support it provided a single page exhibit containing the names of four
asserted victim banks and amounts owed to each. Although Adejumo's trial counsel
received electronic court filing (ECF) notice of this motion, he did not respond to the
Appellate Case: 14-1820 Page: 1 Date Filed: 02/05/2015 Entry ID: 4241593
motion nor inform Adejumo of it. The district court entered the requested restitution
order. Two months later it denied Adejumo's motion to reopen or for reconsideration.
Adejumo appeals, and we reverse.
Adejumo pled guilty to one count of bank fraud and one count of aggravated
identify theft. The plea agreement did not set a mandatory restitution amount; instead
it stated that the district court would determine the amount at sentencing. In the
agreement Adejumo did not waive his ability to present argument on the amount of
the loss to the victims. When the court sentenced Adejumo on August 15, 2012, it did
not specify any restitution amount or payees.
On September 4, 2012, Kenneth Udoibok, Adejumo's counsel in the district
court, filed his own motion to withdraw. Udoibok later filed a notice of withdrawal
of his earlier motion on September 10, stating he was withdrawing his motion because
Adejumo had filed a pro se appeal in the Court of Appeals and jurisdiction had been
transferred to the Eighth Circuit where Adejumo would be represented by substitute
counsel.
We granted Udoibok's motion to withdraw as appellate counsel on September
18. On the same day we appointed Jordan Kushner under the Criminal Justice Act to
serve as Adejumo's counsel. Notice of the change in counsel was served on both the
government and the district court. The district court's electronic court filing system
retained Udoibok as the counsel of record, however. In July 2013 Kushner filed
Adejumo's appellate brief and provided a copy to the government.
On August 15, 2013, the government filed a motion in the district court to
amend its judgment to order restitution for victims in the amount of $1,106,931.
Notice of that motion was provided only to Udoibok, however, not to Kushner.
Attached to the motion was a single page document which listed four banks and the
sums purportedly owed to each by the defendants; Adejumo was listed as jointly and
-2-
Appellate Case: 14-1820 Page: 2 Date Filed: 02/05/2015 Entry ID: 4241593
severally liable. Adejumo did not respond to the motion, and on August 29, 2013 the
district court entered an amended judgment ordering Adejumo to pay $1.1 million in
restitution.
Two months later, Adejumo learned about the restitution order entered against
him from his prison counselor. Adejumo then informed Kushner, who filed a notice
of appearance in the district court on October 30, 2013. Also on the same date,
Kushner filed Adejumo's motion to reopen and for reconsideration of the restitution
order. Kushner attached a declaration in which he acknowledged that Udoibok had
until that time been listed in the district court as Adejumo's attorney of record, also
stating that Udoibok had deleted all ECF notices without reviewing them or informing
Adejumo about them.
On March 26, 2014 the district court denied Adejumo's motion to reopen after
concluding that it lacked jurisdiction to alter the final judgment because Adejumo had
not filed his motion within 14 days of the court entering its amended judgment. See
Fed. R. Crim. P. 35(a). The court concluded that neither it nor the government had
"failed to provide the notice due to Defendant under the due process clause and
various statutes." The district court also stated, however, that "[i]f this Order is
appealed to the Eighth Circuit Court of Appeals, this Court is hopeful that the Court
of Appeals might remand the matter of restitution to this Court to be reopened, so that
Defendant is granted notice and the opportunity to be heard on the issue of
restitution."
Although Adejumo appeals from the denial of the motion to reopen, he also
argues that the very entry of the restitution order violated his due process and statutory
rights and that the delay in ordering restitution violated the 90 day deadline set in 18
U.S.C. § 3664(d)(5). In Dolan v. United States, 560 U.S. 605, 608 (2010), the
Supreme Court held that missing the 90 day deadline for ordering mandatory
restitution does not deprive a court of the ability to enter such an order. In Dolan the
-3-
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total restitution amount had been identified in a report by the probation office within
90 days after sentencing. Id. at 609. In the case now before our court the government
did not identify the requested restitution amount until one year after sentencing, and
no probation report was issued.
The First Circuit confronted a very similar scenario in United States v. Cheal,
389 F.3d 35 (1st Cir. 2004). There, as here, the district court entered an amended
judgment which imposed restitution obligations after the defendant had appealed her
conviction. The circuit court had allowed Cheal's trial counsel to withdraw and had
also appointed a new attorney to represent her on appeal. Id. at 50. Notice of the
motion to amend and the amended restitution judgment were provided to Cheal's trial
counsel, and the defendant filed no opposition to restitution in the district court. Id.
The defendant challenged the restitution order raising a due process claim. Id. at 50.
The court acknowledged that "[t]he absence of [proper] notice is a serious matter," but
ultimately concluded that the due process claim could not succeed; "despite the
regrettable problems with notice of the proposed restitution order," the claim failed
because the defendant had failed to make any showing of the challenge she would
make to the order. Id. at 50–51.
Before a judicial deprivation of property can take place, due process requires
"notice reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present their
objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
The unique circumstances here include the appointment of new counsel in our court,
Udoibok's withdrawal of his motion to withdraw as counsel in district court stating
that he anticipated future action by substitute counsel, and a one year delay before the
government moved to add a restitution obligation. We conclude that the notice
provided to Adejumo prior to the entry of the restitution order was not reasonable
under the circumstances.
-4-
Appellate Case: 14-1820 Page: 4 Date Filed: 02/05/2015 Entry ID: 4241593
Adejumo argues that the entry of restitution failed to comply with 18 U.S.C. §
3664, which governs the procedure for issuance of orders of restitution. Section
3664(a) provides in full that:
For orders of restitution under this title, the court shall order the
probation officer to obtain and include in its presentence report, or in a
separate report, as the court may direct, information sufficient for the
court to exercise its discretion in fashioning a restitution order. The
report shall include, to the extent practicable, a complete accounting of
the losses to each victim, any restitution owed pursuant to a plea
agreement, and information relating to the economic circumstances of
each defendant. If the number or identity of victims cannot be reasonably
ascertained, or other circumstances exist that make this requirement
clearly impracticable, the probation officer shall so inform the court.
Section 3664(e) elaborates that the restitution amount is to be determined by the court
by a preponderance of the evidence and that the government bears the burden "of
demonstrating the amount of the loss sustained by a victim as a result of the offense."
The requirements of § 3664 were not met in this case. The probation office did
not provide any guidance or information about restitution in its presentence report, nor
in a separate report. The presentence report stated that as of its writing "the victims'
losses remain[ed] pending." The government argues unpersuasively that this
statement satisfied the requirements of § 3664 and thereby eliminated the need for a
report containing sufficient information. At no time did the probation officer inform
the court that the number or identity of victims could not be ascertained, nor that
circumstances existed which would have made the requirement of § 3664(a) "clearly
impracticable."
In this case the district court lacked "information sufficient" to fashion a
-5-
Appellate Case: 14-1820 Page: 5 Date Filed: 02/05/2015 Entry ID: 4241593
restitution order as required by § 3664(a). The only evidence the government
provided to support its motion for restitution was a single page which listed four
victim banks, amounts purportedly owed to each, and the defendants with whom
Adejumo is said to be jointly and severally liable. We have recognized that such
invoices "ostensibly identifying the amount of loss without further explanation are
insufficient." United States v. Haileselassie, 668 F.3d 1033, 1037 (8th Cir. 2012)
(internal quotation marks omitted). No presentence report detailing restitution
information issued, and no hearing was held. Thus, information of the type
contemplated by § 3664(a), such as "a complete accounting of the losses to each
victim" was not available to the court when it ordered restitution in the amount of $1.1
million from Adejumo.
Sufficient information for the entry of a restitution order may be produced by
witness testimony at a hearing or sworn victim statements outlining the losses which
resulted from the crime. United States v. Adetiloye, 716 F.3d 1030, 1039 (8th Cir.
2013). Restitution orders may not be based only on speculation, however. See id. On
remand, the district court will have the opportunity to hold a hearing at which
Adejumo will be represented by counsel and the United States can meet its burden of
demonstrating loss amounts in compliance with the requirements of 18 U.S.C. § 3664.
For these reasons we reverse. We also remand the case for the district court to
hold a hearing for which Adejumo should have notice and an opportunity to be heard
on the issue of restitution.
______________________________
-6-
Appellate Case: 14-1820 Page: 6 Date Filed: 02/05/2015 Entry ID: 4241593 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-14-12481/USCOURTS-ca11-14-12481-0/pdf.json | [
[
"Ronnie J. Blair",
"Appellee"
],
[
"Jeanne Dunaway",
"Appellee"
],
[
"James Hill",
"Appellant"
],
[
"Madison County School Board",
"Appellee"
],
[
"June Ann Simpson",
"Appellee"
],
[
"Teresa G. Terrell",
"Appellee"
]
] | [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12481
________________________
D.C. Docket No. 5:10-cv-02593-TMP
JAMES HILL,
as guardian and next friend of BHJ,
a minor,
Plaintiff – Appellant,
versus
CHRISTOPHER J. CUNDIFF, et al.,
Defendants,
MADISON COUNTY SCHOOL BOARD,
RONNIE J. BLAIR,
TERESA G. TERRELL,
JEANNE DUNAWAY,
JUNE ANN SIMPSON,
Defendants – Appellees.
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 1 of 75
2
________________________
No. 13-15444
________________________
D.C. Docket No. 5:10-cv-02593-TMP
JAMES HILL,
as guardian and next friend of BHJ, a minor,
Plaintiff – Appellee,
versus
MADISON COUNTY SCHOOL BOARD, et al.,
Defendants,
JEANNE DUNAWAY,
Defendant – Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(August 12, 2015)
Before HULL and BLACK, Circuit Judges, and ANTOON,* District Judge.
BLACK, Circuit Judge:
* Honorable John Antoon II, United States District Judge for the Middle District of
Florida, sitting by designation.
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 2 of 75
3
These consolidated appeals involve student-on-student sexual harassment.
Jane Doe,1 an eighth-grade student at Sparkman Middle School, was raped2 in a
bathroom after school officials decided to use her as bait in a sting operation to
catch CJC, another eighth-grade student, in the act of sexual harassment. On
appeal, Doe argues the district court3 erred in (1) granting summary judgment to
the Madison County School Board (Board) on her Title IX sexual harassment
claim and (2) granting summary judgment to the Board, Principal Ronnie J. Blair,
Assistant Principal Teresa G. Terrell, Assistant Principal Jeanne Dunaway, and
Teacher’s Aide June Ann Simpson on her 42 U.S.C. § 1983 equal protection
claims.4
For the reasons explained below, we affirm the grant of summary
judgment to the Board and Terrell on Doe’s § 1983 equal protection claims. We
reverse, however, the grant of summary judgment to the Board on Doe’s Title IX
1
We grant James Hill’s (the father of BHJ) motion to substitute BHJ, who has now
reached the age of majority while this matter has been pending, as the named plaintiff and allow
BHJ to proceed anonymously as Jane Doe.
2
We refer to this incident as a rape, rather than an alleged rape, because in reviewing a
motion for summary judgment “we are required to view the facts in the light most favorable to
the nonmoving party.” See Sauls v. Pierce Cty. Sch. Dist., 399 F.3d 1279, 1281 (11th Cir. 2005).
3
All parties to this proceeding jointly consented to the exercise of full dispositive
authority of the magistrate judge handling their case, pursuant to 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. We refer to the magistrate judge as the district court.
4 Doe also appeals the district court’s grant of summary judgment to Simpson for § 1983
substantive due process; to Blair for negligence/wantonness; and to Simpson for the tort of
outrage. In her consolidated appeal, Dunaway argues the district court erred in denying her
state-agent immunity for Doe’s negligence/wantonness claim. We discuss these issues after
resolving Doe’s Title IX and § 1983 equal protection claims.
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4
claim and to Blair, Dunaway, and Simpson on Doe’s § 1983 equal protection
claims.
I. FACTUAL BACKGROUND
A. The Parties
At the time of the rape on January 22, 2010, Doe was a 14-year-old girl and
an eighth grader. From the time her mother became ill and later passed away in
2007, Doe grew up in foster homes scattered throughout North Carolina. In 2008,
Doe moved to Huntsville, Alabama, to live with her siblings’ stepmother, Patricia
Jones, before starting seventh grade. While in Huntsville, Doe attended seventh
grade and a portion of eighth grade at Sparkman Middle School, which is operated
by the Board. CJC, a 15-year old male, was also an eighth-grade student at
Sparkman.
Four Sparkman officials are named as defendants in this suit: Ronnie J.
Blair, Teresa G. Terrell, Jeanne Dunaway, and June Simpson. Blair was the
principal at Sparkman. All assistant principals and teachers reported directly to
Blair, and Blair retained ultimate authority for operation of the school. Terrell and
Dunaway were the assistant principals at Sparkman. June Simpson was a teacher’s
aide for physical education classes.
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5
B. Board’s Sexual Harassment Policies
Prior to and during the 2009-2010 school year, the Board adhered to the
following policies concerning the resolution of sexual harassment complaints and
the retention of complaint-related documents and student disciplinary records.
1. Investigation and Discipline
Each year, school administrators assigned a team of teachers to instruct the
students about Sparkman’s sexual harassment policies. Both the 2009-2010
Student Code of Conduct and Board Policy Manual in effect on January 22, 2010, 5
include sections addressing student sexual harassment.
According to the Code of Conduct, the principal is ultimately responsible for
handling all harassment complaints. The Code of Conduct states that students may
report harassment to the “[p]rincipal, assistant principal, a teacher, or to whomever
he/she feels the most comfortable.” Students may fill out a student sexual
harassment complaint form, though Principal Blair cannot remember seeing this
form or recall a single instance in which a student used the form. The person
receiving the harassment complaint “shall make the complaint known to the
[p]rincipal,” and the principal “shall investigate the complaint and take appropriate
5
Two policy manuals are in the record. The first was approved “June 1997” and titled
“STUDENT SEXUAL HARASSMENT.” The second was approved “June 24, 2010” and titled
“6.10 Student Anti-Harassment Policy.” Blair testified he “believe[d]” the June 24, 2010 Policy
Manual was in effect on January 22, 2010, but that is obviously a temporal impossibility. He
also believed the June 1997 policy was in effect as of January 22, 2010. Viewing the facts in the
light most favorable to Doe, only the June 1997 policy was effective as of January 22, 2010.
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6
action.” Similarly, the Policy Manual provides that the school official to whom a
complaint of sexual harassment is made “shall make the complaint known to the
[p]rincipal of the school, except in cases where the complaint is against the
[p]rincipal.” The principal “shall investigate the complaint and take appropriate
action.”
The record contains few details about the training used to implement the
sexual harassment policies outlined in the Code of Conduct and the Policy Manual.
According to Principal Blair, the Board’s central office conducted all sexual
harassment policy training. Blair reportedly attended an after-school workshop
about sexual harassment conducted at Sparkman, but the record does not reveal
any documentation from this workshop, a list of who attended, the year it occurred,
or the details of the training. Assistant Principal Dunaway remembers attending
sexual harassment training at the Madison County Administrator Academy, but
that program has since been discontinued. Again, the record contains no
documentation of these training sessions.
At the time of her deposition, Assistant Principal Dunaway was not aware
the Code of Conduct had any section addressing sexual misconduct or harassment.
Sparkman did not revisit the sexual harassment policy with its employees every
year, and no records were kept about sexual harassment training. Principal Blair
cannot remember the identity of the Title IX coordinator in 2010; does not know
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7
how employees would discover the identity of the Title IX coordinator; and
testified students were not told the identity of the Title IX coordinator. Rather than
give each teacher a copy of the sexual harassment policy, a large binder containing
the entire Policy Manual was kept on file at the media center and principals’ office.
Despite Teacher’s Aide Simpson’s entreaties to Blair and other faculty members,
she received “no proper training” on how to handle sexual harassment complaints.
Principal Blair testified that when a student alleged another student
committed sexual harassment, all school personnel were required to report the
allegation up the chain-of-command to him if the complaint was “of significance.”
Blair was responsible for overseeing the investigation of sexual harassment
complaints. The assistant principals and other staff members could also investigate
complaints of sexual harassment, but they were required to report such allegations
to Blair. Blair was not always the person in charge of disciplinary action with
regard to sexual harassment; Dunaway and Terrell, as assistant principals, could
also be in charge.
Principal Blair crafted a “catch in the act” policy6 establishing three
exclusive types of evidence sufficient for the school to discipline a student for
sexual harassment. First, if students were “caught and proven” performing a
sexual act, that would be grounds for disciplinary action. Second, physical
6
We refer to this policy as the “catch in the act” policy because the parties have used
that phrase in their briefing.
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evidence of sexual harassment could be sufficient. Third, discipline was warranted
if a student admitted guilt. In contrast, “one person saying” sexual harassment
occurred “against another person’s word does not work.” If a student complained
that another student propositioned him or her for sex, that fact alone was not
enough to warrant discipline “because you’ve got one word against another
without witnesses.”
Principal Blair informed other staff members, including Teacher’s Aide
Simpson, that students had to be “caught in the act” of sexual harassment to
impose discipline. Assistant Principal Dunaway testified that “[s]tudents in middle
school, especially with the use of social media, tend to make up a lot of stories
about people and if we disciplined every child for every rumor, we would have no
children at our school.”
2. Recordkeeping
Upon receiving a complaint of sexual harassment or any other disciplinary
infraction, school officials conducted an investigation, which often involved
interviewing witnesses. An investigation normally produced two types of
documents: (1) administrator notes and (2) witness statements.
There was no school-wide policy regarding the retention of administrator
notes made during an investigation. Administrators were authorized to arbitrarily
destroy or preserve these notes. By contrast, there was a specific policy regarding
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9
witness statements. If the sexual harassment allegation was not proven, the
witness statements were quickly destroyed. If the sexual harassment allegation
was proven, school officials kept the witness statements in a student’s paper file
located in the principals’ office. During the summer shortly after the end of the
academic year, all student conduct files (including both administrator notes, if any,
and witness statements) were shredded. The identity of the school staff member
who performed the shredding is unknown.
After the shredding, the only remaining evidence of a sexual harassment
infraction was an entry in the school’s disciplinary computer database called
iNOW. The database contains a barebones description of each incident, without
any accompanying electronic or paper files revealing the precise nature of the
infraction. Each entry contains an infraction code noting the nature of offense—
such as “sexual harassment” or “inappropriate touching.” When asked how the
school differentiated between inappropriate touching versus sexual harassment,
Terrell testified “one is more serious than the other.” The infraction codes were
meant to allow administrators to evaluate the cumulative and recidivistic nature of
a student’s conduct.
The infraction codes were not a systematic method of classifying
misconduct, but instead an ad hoc determination made solely by Kathy Abernathy,
the school secretary. Assistant Principal Terrell testified that she would not tell
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10
Abernathy which code to enter, but instead just “hand[ed] her the paperwork.”
Assistant Principal Dunaway likewise “handed [Abernathy] the paperwork and she
. . . filled it out.” Terrell believes Abernathy had been trained in the central office
about iNOW coding, but she does not know the nature or date of this training.
C. Events Prior to the Rape on January 22, 2010
CJC, a 15 year-old eighth grader, attended Sparkman Middle School during
the 2009-2010 school year. Prior to his rape of Doe on January 22, 2010, CJC had
accumulated a disciplinary history of violence and sexual misconduct. We break
this history into four parts: (1) CJC’s recorded disciplinary history in the iNOW
database prior to January 2010, the month of the rape; (2) allegations he had been
propositioning girls to have sex with him in January 2010; (3) an allegation of
“inappropriately touching” a girl on January 13, 2010; (4) and allegations he had
repeatedly propositioned Doe to have sex with him for two weeks prior to the rape.
1. CJC’s Recorded Disciplinary History Prior to January
CJC’s disciplinary record consists of short summaries of incidents logged in
the Board’s iNOW computer system. Over 18 months preceding the rape in
January 2010, CJC had five infractions for sexual misconduct and four infractions
for violent or threatening behavior. There is no supporting documentation of these
incidents due to the shredding policies described above, and none of the
administrators remember any details about the incidents.
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The first relevant entry on CJC’s record is dated September 24, 2008, when
he was a seventh grader at Ardmore High School (Ardmore). CJC received five
days of in-school suspension for “[i]napp [p]ublic [d]isplay of [a]ffect,” described
in the notes as “[t]ouching girls in inappropriate places. Writing inappropriate
notes to girls asking them to have sex with him.” In another incident at Ardmore,
he “[h]it another student” and received three days of in-school suspension.
After transferring to Sparkman during his seventh-grade year, CJC
continued to tally disciplinary infractions for violent and sexual misconduct. On
December 17, 2008, CJC received an unspecified amount of out-of-school
suspension for “[f]ighting” because he “[h]it another student several times on bus.”
On February 4, 2009, CJC received out-of-school suspension for “[m]aking
inappropriate comments to a young lady,” coded as “[s]exual harassment.”
In September 2009 during eighth grade, CJC received an unspecified amount
of out-of-school suspension for “[h]arassment” because he “[o]ffered to pay
another student to beat up a girl also stated that would he would like to kill her.”
On October 23, 2009, CJC was suspended from riding the bus for saying “F---
You” to the driver. On October 28, 2009, CJC received in-school suspension for
“[i]nappropriate touching” coded as “[d]isobedience.” On November 18, 2009,
CJC was again suspended from the bus for “refusing to obey driver and keep hands
off a female student,” with the infraction coded as “[m]inor disruption on bus.”
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12
One week later, CJC received in-school suspension for “[k]issing” coded as
“[d]isobedience.” On December 15, 2009, CJC received in-school suspension for
“[v]erbal confrontation with another student” coded as “[d]isobedience.” Three
days later, CJC received out-of-school suspension for “[t]hreatening another
student” and “intimidation” while serving his in-school suspension.
Assistant Principal Terrell did not know why the school listed CJC’s
infraction for “[m]aking inappropriate comments to a young lady” as “sexual
harassment,” but listed his failure to “keep hands off a female student” as “[m]inor
disruption on bus.” By Terrell’s admission, there was “not a normal policy” about
“what goes in the infraction box.”
2. Propositioning Girls to Have Sex in Bathrooms in January
In the weeks prior to the rape in January 2010, CJC propositioned female
students to have sex with him in the school bathrooms. There are two competing
versions of CJC’s sexual activity in the bathrooms during January 2010.
According to Teacher’s Aide Simpson, CJC “had been repeatedly
propositioning other female students to have sex in the boys’ bathroom.” The
allegations began shortly after Thanksgiving break in 2009. Simpson reported
CJC’s sexual harassment to Principal Blair in early January and suggested school
officials monitor CJC at all times. Blair responded that school officials “were
going to have to catch [CJC] in the act” before taking any disciplinary action.
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13
Blair’s recollection differs from Simpson’s. According to Blair, he learned
that approximately one and a half weeks prior to the rape on January 22, 2010,
there was one “alleged incident” involving CJC and female student at the school.
Simpson told Blair that CJC and another student were engaged in consensual
sexual activity in a bathroom in the special education wing. Blair spoke directly to
CJC and the female student about the activity and took notes of the conversations.
Though he normally required students to create a written statement about such
incidents, Blair cannot remember whether CJC made such a statement. Blair also
cannot remember the identity of the female student who made the allegations. CJC
and the female student both denied engaging in any sexual activity. Blair did not
impose any disciplinary action in response to the allegation because it was a “he
say/she say kind of deal.” Since he could not confirm the truth of the allegation, it
did not count as sexual harassment and all documents relating to the investigation
were shredded.
Principal Blair did not examine CJC’s disciplinary records as part of his
investigation. There was no reason to examine the records because he would
“recall” those “big” incidents of sexual harassment that had already occurred.
Nonetheless, he told Assistant Principals Terrell and Dunaway to maintain a
“heightened state of alert” about CJC’s activity. Blair pointed one of the school’s
security cameras, which had an unmonitored screen in the front office, towards the
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14
school’s special education bathroom.
3. Sexual Harassment on January 13
On January 13, 2010, there was another allegation that CJC was sexually
harassing female students. Assistant Principals Terrell and Dunaway investigated
a complaint that CJC “inappropriately touch[ed]” another female student. There
are no records of this incident.
Principal Blair cannot recall the exact nature of the allegation, or even
whether it involved sexual touching. Assistant Principal Dunaway remembers
some students mentioning that CJC inappropriately touched a girl’s thigh during
class, but she could not identify a witness with personal knowledge of the incident,
nor could she remember the identity of the victim. Assistant Principal Terrell
described the incident as “middle school drama.”
During the investigation, Principal Blair did not review CJC’s iNOW record
or any other documentation. Assistant Principal Dunaway checked CJC’s iNOW
record, but it did not inform her decision about how to discipline him. Dunaway
did not review the supporting paper documentation in CJC’s file regarding the
October 28, 2009 “[i]nappropriate touching” infraction, the November 18, 2009
infraction for “refusing to obey driver and keep hands off a female student”
infraction, or the November 25, 2009 infraction for “[k]issing.” Dunaway chose
not to look at this documentation because she “had no reason to believe he was
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15
guilty. I had nobody to corroborate the story.”
The incident was recorded in the iNOW database. The database entry says
CJC received 20 days of in-school suspension for “[d]isobedience” due to
“[c]onstant[]distraction continued disruption of learning.” When asked why the
school listed this incidence of sexual harassment as “[d]isobedience,” without any
reference to inappropriate touching, Assistant Principal Dunaway explained the
allegations had not been proven. Assistant Principal Terrell opined the
investigation into the sexual harassment itself was “a constant disruption.”
Even though “[n]othing could be proven” regarding the allegation, Principal
Blair assigned CJC to 20 days of in-school suspension as a “precautionary
measure,” but “not as discipline for him.” In-school suspension involved, inter
alia, sweeping hallways and cleaning the lunchroom. A student assigned to inschool suspension was supervised by a custodian or plant manager. When asked
whether someone was supposed to be with CJC at all times, Blair responded, “[n]ot
necessarily.” A student was assigned a particular task in a certain room or hallway
and was not watched at all times, but instead occasionally left unmonitored. Blair
would not have given CJC such latitude had he been found guilty of misconduct.
CJC, however, had been assigned to in-school suspension as a precautionary
measure.
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4. Propositioning Doe to Have Sex
Over a two-week period prior to January 22, 2010, CJC had been badgering
Doe to have sex with him in the bathroom. Doe refused to respond to him. During
school on January 21, 2010, Doe told Teacher’s Aide Simpson that CJC had been
asking her to have sex. That same night, Doe told her guardian, Patricia Jones, that
“a guy at school, [CJC], was trying to have sex with me at school.” Jones told her
to refuse him.
D. January 22, 2010
1. Prior to the Rape
On Friday, January 22, 2010, Doe rode the bus to school, attended classes,
and walked to gym class at 2:00 pm. The entrance to the gym sat directly opposite
the main hallway where the principals’ office was located. CJC was in the hallway
performing unsupervised cleanup duties as part of his 20-day, “precautionary” inschool suspension for sexual harassment. CJC began talking to Doe next to the
principals’ office. CJC asked Doe to have sex with him in the sixth-grade boys’
bathroom. Doe said nothing and entered the gym.
Doe lined up for roll call and then, rather than enter the locker room with
other students to change into gym clothes, approached Teacher’s Aide Simpson.
Doe and one of her friends (whose identity does not appear in the record) spoke to
Simpson near the entrance of the gym. Doe told Simpson that CJC was still
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17
“messing” with her. Simpson said “do you want to get [CJC]” in trouble and Doe
said “yes.” Simpson said, “Do you want to—you have to go meet him so that we
could set him up and get him caught because he’s been doing this for a while.”
Doe responded that she “didn’t want to go,” and walked to the locker room. Doe
and her friend then sat in the locker room a few minutes and conversed. A few
minutes later, Doe approached Simpson again and “told her I would do it.”
Simpson asked if Doe was “sure,” and Doe said yes.
Teacher’s Aide Simpson escorted Doe to Assistant Principal Dunaway’s
office, but the precise events that occurred in the office are disputed. The facts
recalled by Doe and Simpson differ significantly from the events described by
Dunaway and Andrea Hallman (another teacher at Sparkman).
Doe recollects that, while in the office, Teacher’s Aide Simpson “told [an
assistant principal] what was going to happen.” According to Simpson, Assistant
Principal Dunaway and another teacher, Andrea Hallman, were in the office. Since
Dunaway was on the phone, Simpson asked for Hallman’s advice about the plan to
catch CJC in the act of sexual harassment. When Dunaway finished her telephone
conversation, Simpson spoke directly to Dunaway and described the plan to use
Doe as bait in a sting operation. Simpson said, “I hope this is legal. I don’t know
what I’m doing.” Dunaway appeared “disinterested” and provided “no direction or
advice.” Instead, Dunaway showed Simpson some “pictures of some tile on the
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18
cell phone.” At this time, Doe and her friend from gym class were talking to
Hallman in the doorway of the office. Because she had spoken to Dunaway and
Hallman, Simpson believed “someone else was handling the situation, so I returned
to the gym.”
Assistant Principal Dunaway’s description of the events in her office is quite
different. According to Dunaway, she was speaking to Hallman about student
literacy data when she saw Simpson enter the edge of her office and stand near the
door. At some point, Dunaway spoke on the phone with her husband. Simpson’s
back faced Dunaway, and Simpson appeared to be speaking to someone outside the
door while looking right and left. Simpson stood near the door for three to seven
minutes, but she never spoke to Dunaway. Dunaway claims it was “common” for
staff members to stand in her office without speaking to her for long stretches of
time because her office is large and sits next to the school’s main hallway. She
disclaims any knowledge of the plan to use Doe as bait in a sting operation.
According to Hallman’s affidavit, she was in Dunaway’s office when
Simpson arrived. Simpson stated a male student had been asking girls to meet him
in the bathroom for sex. When Simpson made this comment, Dunaway was
possibly conversing on the phone. Hallman stepped into the hallway and saw CJC
working with a school janitor, so she returned to Dunaway’s office. Simpson
never told Dunaway or Hallman about the plan to use Doe in order to catch CJC in
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19
the bathroom.
2. The Rape
After Doe and Teacher’s Aide Simpson left Assistant Principal Dunaway’s
office, Simpson told Doe to inform CJC that she “would do it.” Doe found CJC
alone in the hallway near the principals’ office. There was no janitorial supervisor
around CJC at this time. Doe told CJC she would have sex, and he said to meet at
the sixth-grade boys’ bathroom. Doe walked slowly toward the bathroom where
she stood by the water fountain. CJC asked her to go inside the bathroom, and she
went in first. CJC told Doe to go inside the most spacious stall. Doe complied and
moved to the back corner of the stall.
CJC directed Doe to pull down her pants, but, since she did not do it quickly
enough, CJC unbuttoned her pants and then pulled his own pants down. Doe
attempted to block the button of her pants, but he moved her hand away. Doe kept
trying to “stall” CJC by telling him “the teachers are going to come,” but CJC said
they would not arrive in time. When CJC pulled his own pants down, Doe told
him “I don’t want to do this” and attempted to pull her pants back up. CJC,
however, pulled them back down and said “I thought you wanted it.” CJC anally
raped Doe. Doe kept telling him to stop.
3. The Aftermath
After leaving Assistant Principal Dunaway’s office, Teacher’s Aide Simpson
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returned to the gym. Shortly thereafter, Doe’s friend told Simpson that Doe had
left to meet CJC. Concerned for Doe’s safety, Simpson returned to Dunaway’s
office. Simpson asked Dunaway and Hallman to search the sixth-grade bathroom.
Dunaway said nothing, and Hallman said she didn’t want to catch students “with
their clothes off.” Simpson called Kennedy, another teacher at Sparkman, and
asked him to search the boys’ bathrooms. She returned to the gym and asked the
gym teacher to also search the boys’ bathrooms. In the meantime, Hallman
checked the hallway, saw a teacher checking a bathroom, and returned to her own
classroom.
Within approximately one minute of receiving Simpson’s phone call,
Kennedy arrived in the sixth-grade boys’ bathroom and saw two pairs of feet
“close together” beneath the stall. He did not feel comfortable saying anything
without another adult present, so he left the bathroom, saw another teacher,
Campbell, and motioned for her to help him. Kennedy and Campbell entered the
bathroom. Campbell asked if anyone was there and told the students to come out.
CJC and Doe exited the stall. Kennedy observed CJC was noticeably erect. CJC
told Kennedy he and Doe “were not doing anything but making out.” Campbell
spoke to Doe in the hallway and asked her what had happened, but Doe could only
answer that he had “touched” her.
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21
The school receptionist learned about the incident and told Assistant
Principal Terrell that a boy and girl were found in a bathroom. Terrell approached
the bathroom, located Doe, and told her “you’ll be suspended.” Terrell walked
outside the school and spoke to Principal Blair, who was performing bus duty.
Terrell said Doe had been instructed to enter the bathroom, but “things had
changed a little bit—or a lot in the situation.” Terrell walked back inside the
school to escort CJC and Doe to the principals’ office.
Assistant Principals Terrell and Dunaway interviewed Doe. Terrell asked
Doe why she had been in a boys’ bathroom. Terrell cannot remember Doe’s
response, other than “[i]t was some wording in defense of herself.” Both Terrell
and Dunaway claimed Doe appeared calm during this meeting. Teacher’s Aide
Simpson entered the office and made a “fist pump” gesture, saying, “I sent [Doe]
and we got [CJC].” After Simpson’s entrance, Terrell and Dunaway asked Doe to
leave the office and remain seated in the lobby.
Principal Blair interviewed Simpson in his office. Teacher’s Aide Simpson
said she devised the sting operation with Doe in order to catch CJC in the act of
sexual harassment. According to Blair, Simpson said the plan went awry because
Doe failed to meet CJC at the correct bathroom where Simpson had originally
planned to catch him.
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Principal Blair also interviewed CJC. CJC claimed he and Doe had only
kissed consensually in the bathroom. Blair cannot recall whether he and CJC
discussed any of the prior allegations of sexual harassment against CJC.
Finally, Principal Blair interviewed Doe. She initially cried and could not
tell him what happened. After her guardian, Jones, and Teacher’s Aide Simpson
entered the office, Doe explained that CJC had raped her. During this interview,
Doe wrote a contemporaneous statement describing the rape in vivid detail.
Before the police arrived, the administrators conferenced to determine
whether to punish CJC for the rape. They decided to suspend CJC for five days,
subject to a subsequent disciplinary hearing at the central office. According to the
“Suspension Notice” provided to CJC’s guardian, the administrators imposed the
suspension for “[i]nappropriate touching.”
After speaking to the police, Doe was transported to a child advocacy center
where nurses performed tests and provided medical treatment. The medical
records from the examination were consistent with anal rape. Doe suffered anal
lacerations, rectal bleeding, redness, and swelling, all of which are welldocumented with photographs. For reasons undisclosed by the record, the
Madison County District Attorney’s Office never filed charges against CJC.
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E. The Board’s Response to the Rape
After contacting CJC’s parents about the sexual assault, Principal Blair
referred CJC’s disciplinary proceeding to Dr. Jim Nash, the Student Support and
Personnel Director for the Board. Nash scheduled an expulsion hearing on
Wednesday, January 27, where he presided as the “Hearing Officer.” There is
virtually no information in the record about this hearing. There are no minutes, no
description of the evidence before Nash, nor an explanation of Nash’s reasoning.
Nash allegedly wrote a report documenting the research and conclusions of his
investigation, but the Board has not produced this report.
The only evidence about the hearing is a one-page form. The form says
Nash sentenced CJC to “Alt[ernative] School Placement / duration of school year
unless results of investigation suggest [unintelligible] punishment.” Later
documents show CJC was assigned to alternative school “pending investigation” of
the rape.
CJC attended alternative school at the “Promoting an Alternative
Commitment to Excellence Alternative Education Program” (PACE) beginning on
February 4, 2010. On February 24, 2010, while at PACE, a teacher caught CJC
viewing pornography on a school computer. CJC claimed he looked at the picture
“to impress a classmate.” PACE gave CJC two days of out-of-school suspension
for this infraction.
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CJC stopped attending PACE on April 2, 2010, and returned to Sparkman on
April 5. The record does not explain why CJC returned to Sparkman, other than a
discharge notation from PACE stating “Dr. Nash approved return due to outcome
of investigation.” The precise nature and findings of this investigation are
unknown. The record also does not show that school officials placed any
additional restrictions on CJC when he returned to Sparkman Middle School.
On May 5, 2010, Sparkman had, according to an email from Assistant
Principal Terrell to Principal Blair and PACE, “additional problems with [CJC].”
Among other things, CJC “kept moving to the table with his girlfriend” and
“hugged a girl in front of the cafeteria.” As a result, Terrell suspended him for
three days and placed him in alternative school the rest of the school year from
May 10 to May 26. This disciplinary infraction was never recorded in Sparkman’s
iNOW database.
CJC’s January 22, 2010 rape of Doe is listed in CJC’s iNOW record. The
database entry says CJC received out-of-school suspension for “[s]exual
[o]ffenses” due to “[i]nappropriate touching a female in boys bathroom.” Assistant
Principal Terrell contends the report describes the incident as inappropriate
touching, rather than rape, because CJC admitted to “making out” with Doe,
whereas no one actually witnessed the rape. Thus, the rape was not definitively
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proven. No one appears to remember who told Secretary Abernathy to describe
the rape as inappropriate touching.
Principal Blair does not know whether he believes CJC actually raped Doe.
Assistant Principal Dunaway never formed an opinion on whether CJC raped Doe
because the police never arrested CJC or charged him with rape. Dunaway
believes a rape cannot occur unless prosecutors bring criminal charges against the
alleged student rapist. Dunaway also believes Doe’s decision to enter the
bathroom makes CJC’s conduct “different” because, in her mind, he was not
“dragging a cave woman by the hair and pulling her into your cave as opposed to
someone saying sure, I’ll go with you.”
Assistant Principal Terrell also never formed an opinion on whether CJC
raped Doe because “[w]e turned it over to the police department for them to
investigate it. That was not my place to make that decision.” After examining the
medical photographs documenting Doe’s anal injuries, Terrell had no opinion on
whether Doe was raped.
With one exception, the Board has not changed a single policy in response to
CJC’s rape of Doe. The Board decided to discontinue the one-day sexual
harassment training workshop for administrators at the Madison County
Administrator Academy. Otherwise, the Board has not changed its sexual
harassment disciplinary policy and recordkeeping policies, nor has it altered the
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way it investigates sexual harassment complaints. Sparkman has not changed its
practice of assigning students to unsupervised janitorial duty as punishment for
alleged sexual harassment. Principal Blair would not change any policies because
“we did as good a job I think as you could do under the circumstances.”
F. Effect of Rape on Doe
After the rape on January 22, Doe continued attending Sparkman until she
withdrew on March 26. She returned to North Carolina to finish eighth grade.
Doe never received any assistance from the Board, in the form of counseling or
otherwise, to deal with her trauma. Upon her return to North Carolina, Doe
attended mental health counseling sessions and was prescribed medication for
depression. Doe discussed the rape with her counselor and how it has affected her.
In seventh and eighth grade at Sparkman, Doe played intramural basketball.
She stopped playing basketball at the end of her eighth-grade year because “I just
didn’t feel like I could do it anymore” and “I was just depressed.” Doe has not
participated in any extracurricular activities since leaving Sparkman. Due to the
rape, Doe prefers to “be by myself” and does not “trust being at school anymore.”
Her grades have suffered because, even though she was diagnosed with bipolar
disorder prior to the rape, her depression has been exacerbated. Doe’s grades have
gone up and down, sometimes earning As, Bs, and Cs, but sometimes receiving Fs.
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G. Destruction of CJC’s Paper Disciplinary File
In a letter dated April 30, 2010, approximately three months after the rape,
Principal Blair received from Doe’s counsel a letter notifying him to preserve
certain records relating to the January 22, 2010 personal injuries of Doe. The letter
stated:
As you may be aware, my law firm represents [Doe] as a result
of personal injuries resulting from an incident which occurred on
January 22, 2010 at Sparkman Middle School. We specifically
request that the following evidence be maintained and preserved and
not be destroyed, modified, altered, repaired, or changed in any matter
[sic]:
1. Any videos or documents pertaining to the above referenced
incident.
2. Any communications, including e-mails, regarding the incident.
Blair says he preserved all the records stemming directly from the January 22,
2010 rape of Doe. Blair preserved no documents, other than the iNOW records,
related to CJC’s other alleged or proven infractions during the 2009-2010 school
year.
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II. PROCEDURAL HISTORY
A. Doe’s Complaint
On September 23, 2010, Doe filed a complaint against the Board, CJC,
Blair, Terrell, Dunaway, and Simpson.7
The complaint alleged (1) negligence
against Blair, Terrell, Dunaway, and Simpson; (2) recklessness/wantonness against
Blair, Terrell, Dunaway, and Simpson; (3) negligent/reckless/wanton hiring,
training, retention and supervision against Blair, Terrell, and Dunaway; (4) the tort
of outrage against Blair, Terrell, Dunaway, and Simpson; (5) a violation of Title
IX, 20 U.S.C. § 1681, against the Board; and (6) a violation of the Equal Protection
Clause and Substantive Due Process Clause, 42 U.S.C. § 1983, against all
Defendants. The complaint sought declaratory relief, injunctive relief, and
damages.
B. Motions for Summary Judgment
The Board, Principal Blair, Assistant Principal Terrell, and Assistant
Principal Dunaway collectively moved for summary judgment. The district court
granted summary judgment to the Board on the Title IX claims because CJC’s
sexual misconduct and violent behavior did not “constitute[] sexual harassment so
severe that it was depriving female students of educational opportunities.”
7
The complaint also named CJC as a defendant. The district court dismissed the claims
against CJC because he was an unrepresented minor and numerous attempts to appoint a
guardian ad litem had proven unsuccessful. That order of dismissal is not on appeal.
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According to the district court, CJC’s disciplinary history was not enough to give
the Board actual knowledge of CJC’s harassment of female students. The district
court found that, even if the Board had actual knowledge, it was not deliberately
indifferent because the disciplinary response to CJC was not clearly unreasonable.
The district court granted summary judgment to the Board, Blair, Dunaway,
and Terrell on the § 1983 claims. The district court granted summary judgment to
Blair, Dunaway, and Terrell on the Alabama negligent/wanton hiring claims, as
well as the tort of outrage claims. The district court also granted summary
judgment to Blair and Terrell on the Alabama negligence/wantonness claims
because they were entitled to state-agent immunity. The district court denied
summary judgment to Dunaway on the negligence/wantonness claims, however,
because she acted beyond her authority by ratifying the sting operation.
In her own motion, Teacher’s Aide Simpson moved for partial summary
judgment on the tort of outrage and § 1983 claims. The district court granted the
motion for partial summary judgment. After the district court’s rulings on the two
motions for summary judgment, the only pending counts were
negligence/wantonness claims against Dunaway and Simpson.
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Dunaway timely filed an interlocutory appeal from the district court’s denial
of summary judgment on the negligence/wantonness claims.
8
The district court
subsequently dismissed without prejudice the pending state law counts against
Dunaway and Simpson because all claims over which the district court had federal
question jurisdiction had been dismissed and the state-agent immunity issues were
not settled under Alabama law.9
Doe timely appealed the orders granting summary
judgment in favor of Defendants. This Court granted the parties’ joint motion to
consolidate the appeals of Doe and Dunaway.
III. STANDARD OF REVIEW
We review de novo a grant or denial of summary judgment, viewing all facts
and reasonable inferences in the light most favorable to the nonmoving party.
Bridge Capital Inv’rs, II v. Susquehanna Radio Corp., 458 F.3d 1212, 1215 (11th
Cir. 2006). The propriety of summary judgment on state-agent immunity and
qualified immunity grounds is a question of law to be reviewed de novo. Taylor v.
Adams, 221 F.3d 1254, 1256–57 (11th Cir. 2000); Johnson v. Clifton, 74 F.3d
1087, 1090 (11th Cir. 1996). “Summary judgment is appropriate only if there is no
genuine issue of material fact and the moving party is entitled to judgment as a
8
We have jurisdiction to consider a public official’s interlocutory appeal from an order
denying her state-law immunity where the disputed issue is whether the official acted outside her
discretionary authority. See Taylor v. Adams, 221 F.3d 1254, 1260 n.9 (11th Cir. 2000).
9
See 28 U.S.C. § 1367(a) (authorizing a district court to decline to exercise supplemental
jurisdiction if, inter alia, “the district court has dismissed all claims over which it has original
jurisdiction”).
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matter of law.” Hallmark Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1276,
1283 (11th Cir. 2006); see Fed. R. Civ. P. 56(a).
IV. DISCUSSION
Doe raises five issues on appeal. Doe argues the district court erred in
granting summary judgment (1) to the Board on the Title IX claim; (2) to the
Board, Blair, Dunaway, Simpson, and Terrell on the § 1983 equal protection
claims; (3) to Simpson on the § 1983 substantive due process claim; (4) to Blair on
the negligence/wantonness claims; and (5) to Simpson on the tort of outrage
claim.10 In her consolidated appeal, Dunaway raises a single argument: the district
10 Doe also argues the district court erred in failing to draw a spoliation inference against
all Defendants for the school officials’ destruction of CJC’s disciplinary record. The district
court did not abuse its discretion in denying Doe’s request for an adverse spoliation inference.
See Mann v. Taser Int’l., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (reviewing district court’s
decision regarding spoliation sanctions for abuse of discretion). Under our precedent, “an
adverse inference is drawn from a party’s failure to preserve evidence only when the absence of
that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997).
As the district court held, the timing and content of Doe’s preservation letter do not establish
Defendants destroyed CJC’s 2009-2010 school year records in bad faith. Instead, the Board
continued to follow the customary document retention policy by which disciplinary files were
shredded each summer.
With regard to timing, Blair received the preservation letter from Doe’s counsel in early
May 2010, but the original complaint was not filed until September 23, 2010. Blair therefore
received the letter roughly five months before Doe put the Board on explicit notice that she was
bringing a Title IX claim whose success hinged on school officials’ knowledge of CJC’s sexual
harassment history. Furthermore, it is undisputed that the summer—the time period between the
submission of the preservation letter and the filing of the complaint—was the customary time of
year when school officials shredded paper disciplinary files.
The content of the preservation letter likewise supports the district court’s denial of
sanctions. Notably, the letter did not request all of CJC’s disciplinary records, but instead only
the evidence “pertaining to” the “incident which occurred on January 22, 2010 at Sparkman
Middle School.” Defendants did, in fact, preserve records stemming directly from the rape of
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court erred in denying her state-agent immunity against Doe’s
negligence/wantonness claims. We first address Doe’s Title IX claim.
A. Legal Standard for Title IX Student-on-Student Sexual Harassment
Title IX states, in pertinent part, that “[n]o person in the United States shall,
on the basis of sex, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). Although Title IX does not
expressly permit private enforcement suits, the Supreme Court has found an
implied private right of action for individuals to enforce Title IX through monetary
damages actions. Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 76, 112 S. Ct.
1028, 1038 (1992); Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S. Ct. 1946,
1968 (1979).
The Supreme Court first addressed Title IX claims in the context of teacheron-student sexual harassment. In Gebser v. Lago Vista Independent School
District, 524 U.S. 274, 277, 118 S. Ct. 1989, 1993 (1998), the Court held § 1681
Doe. We note the narrow request for information in the preservation letter is not dispositive of
Doe’s spoliation claim because “the common-law obligation to preserve relevant material is not
necessarily dependent upon the tender of a ‘preservation letter.’ ” Cache La Poudre Feeds, LLC
v. Land O’Lakes, Inc., 244 F.R.D. 614, 623 (D. Colo. 2007); cf. Thompson v. U.S. Dep’t of
Housing and Urban Dev., 219 F.R.D. 93, 100 (D. Md. 2003) (holding a party’s failure to request
the preservation of documents “does not vitiate the independent obligation of an adverse party to
preserve such information”). A poorly worded preservation letter does not necessarily shield a
defendant from spoliation sanctions solely because she complied with the letter’s narrow request.
In this case, however, the Board’s compliance with the plain meaning of the preservation letter is
another factor pointing against bad faith.
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creates a private cause of action against funding recipients for teacher-on-student
sexual harassment when “an official of the school district who at a minimum has
authority to institute corrective measures on the district’s behalf has actual notice
of, and is deliberately indifferent to, the teacher’s misconduct.” The Court
described the deliberate indifference standard as “an official decision by the
[funding] recipient not to remedy the violation.” Id. at 290, 118 S. Ct. at 1999.
One year later, in Davis v. Monroe County Board of Education, 526 U.S.
629, 633, 119 S. Ct. 1661, 1666 (1999), the Supreme Court held § 1681 creates a
private cause of action for student-on-student sexual harassment. A Title IX
funding recipient is liable for student-on-student harassment if it is “deliberately
indifferent to sexual harassment, of which [it] has actual knowledge, that is so
severe, pervasive, and objectively offensive that it can be said to deprive the
victims of access to the educational opportunities or benefits provided by the
school.” Id. at 650, 119 S. Ct. at 1675. The standard for student-on-student sexual
harassment claims is far more rigorous than a claim for teacher-on-student
harassment. See id. at 650–53, 119 S. Ct. at 1675–76.
Student-on-student sexual harassment rises to the level of actionable Title IX
discrimination only if the harassment is “sufficiently severe.” Id. at 650, 119 S. Ct.
at 1674. The plaintiff must establish not only that the school district was
deliberately indifferent to known acts of harassment, but also that the known
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harassment was “so severe, pervasive, and objectively offensive that it denie[d] its
victims the equal access to education that Title IX is designed to protect.” Id. at
651–52, 119 S. Ct. at 1675.
The Court imposed this high standard to guard against the imposition of
“sweeping liability.” Id. at 652, 119 S. Ct. at 1675–76. Unlike an adult workplace,
children “may regularly interact in a manner that would be unacceptable among
adults.” Id. at 651, 119 S. Ct. at 1675. Due to their immaturity, children at various
ages will invariably engage in some forms of teasing, shoving, and name-calling
that “target differences in gender.” Id. at 651–52, 119 S. Ct. at 1675. Some risk of
sexual harassment is inherent to the enterprise of public education, in particular,
because public schools must educate even the most troublesome and defiant
students.
We begin by clarifying the correct legal standard for student-on-student
sexual harassment claims under Title IX. The parties dispute whether the district
court applied the appropriate standard for evaluating the actual notice requirement
of Doe’s student-on-student harassment claim. The district court required Doe to
prove the Board had actual notice of sexual harassment “so severe, pervasive, and
objectively offensive that it can be said to deprive the victims of access to the
educational opportunities or benefits.”
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Doe, with support from the United States Department of Education and
United States Department of Justice (collectively, DOJ) acting as amicus curiae,
argues the district court erred in applying a “heightened” notice requirement
unsupported by law. According to Doe, a plaintiff must show only that allegations
of sexual harassment alerted the school district that the harasser posed a
“substantial risk” of engaging in “severe, pervasive, and objectively offensive”
harassment against other students. After this showing, a plaintiff may then prove
the harasser’s conduct culminated in sexual harassment that was “so severe,
pervasive, and objectively offensive” that it harmed the victim by depriving him or
her of educational opportunities.
Doe’s and the DOJ’s proposed “substantial risk” standard lacks merit. The
“substantial risk” standard emanates from teacher-on-student Title IX cases, whose
requirements are not as rigorous as student-on-student cases. See Davis, 526 U.S.
at 653, 119 S. Ct. at 1676 (noting that “[p]eer harassment, in particular, is less
likely” to breach the Title IX guarantee of equal access to education than “teacherstudent harassment”). All of the cases cited by Doe and the DOJ applying a
“substantial risk” standard or similar language involved teacher-on-student
harassment. See Doe v. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1254 (11th Cir.
2010) (teacher-on-student harassment); Bostic v. Smyrna Sch. Dist., 418 F.3d 355,
360–61 (3d Cir. 2005) (same); Williams v. Paint Valley Local Sch. Dist., 400 F.3d
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360, 362 (6th Cir. 2005) (same); see also Baynard v. Malone, 268 F.3d 228, 240
(4th Cir. 2001) (Michael, J., dissenting in part) (same).
We hold a Title IX plaintiff must prove the funding recipient had actual
knowledge that the student-on-student sexual harassment was severe, pervasive,
and objectively offensive. The plain language of Davis dictates this result:
“[F]unding recipients are properly held liable in damages only where
they are deliberately indifferent to sexual harassment, of which they
have actual knowledge, that is so severe, pervasive, and objectively
offensive that it can be said to deprive the victims of access to the
educational opportunities or benefits provided by the school.”
Davis, 526 U.S. at 650, 119 S. Ct. at 1675 (emphasis added). The high burden of
Davis ensures school districts are not financially crippled merely because
immature kids occasionally engage in immature sexual behavior. Simply put,
“[t]he Supreme Court has applied a more rigorous standard when a Title IX
plaintiff seeks damages against a school district for student-on-student
harassment.” Sauls v. Pierce Cty. Sch. Dist., 399 F.3d 1279, 1284 (11th Cir.
2005). Accordingly, the district court applied the correct standard to Doe’s Title
IX claim.
B. Application of Legal Standard for Title IX Student-on-Student Sexual
Harassment
We now apply this legal standard to Doe’s Title IX claim. In Williams v.
Board of Regents of University System of Georgia, 477 F.3d 1282, 1292–99 (11th
Cir. 2007), this Court applied Davis and held a plaintiff seeking recovery for a
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Title IX violation predicated on student-on-student sexual harassment must prove
five elements.11
First, the defendant must be a Title IX funding recipient. Id. at 1293.
Second, an “appropriate person” must have actual knowledge of the alleged
discrimination or harassment. Id. (quotation omitted). Third, the discrimination or
harassment—of which the funding recipient had actual knowledge under element
two—must be “severe, pervasive, and objectively offensive.” Id. (quotation
omitted). Fourth, the plaintiff must prove “the funding recipient act[ed] with
deliberate indifference to known acts of harassment in its programs or activities.”
Id. (quotation omitted). Fifth, the plaintiff must demonstrate the discrimination or
harassment “effectively barred the victim’s access to an educational opportunity or
benefit.” Id. at 1298 (quotation and internal alterations omitted).
Applying this test, the district court concluded no reasonable juror could find
the Board had actual knowledge that CJC’s behavior constituted sexual harassment
so severe, pervasive, and objectively offensive as to deprive Doe of educational
opportunities. For the reasons explained below, we disagree and reverse.
11 In Williams, we described this test as comprising four elements, with the fourth
element containing two parts: 4a and 4b. Williams, 477 F.3d at 1293, 1297–98. For purposes of
this appeal, we apply Williams as a five-element test, designating 4a and 4b as separate elements.
For the sake of clarity, we also rearrange our discussion of the elements in the following order: 1,
2, 4a, 3, 4b.
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1. Is the Board a Title IX funding recipient?
The first element requires Doe to prove the Board is a Title IX funding
recipient. See id. at 1293. The parties do not address and therefore appear to agree
the Board is a Title IX funding recipient. Doe succeeds on the first element.
2. Did the Board have actual knowledge of the sexual harassment and
discrimination Doe faced?
The second element requires Doe to prove an “appropriate person” capable
of putting the Board on notice had “actual knowledge” of CJC’s sexual harassment
and discrimination. See id. We begin by identifying the appropriate persons
capable of putting the Board on notice of CJC’s sexual harassment. We then
discuss whether the Board had actual knowledge of CJC’s sexual harassment.
a. Appropriate persons
The Supreme Court has explained that an “appropriate person” is an official
of the recipient entity who “at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the recipient’s behalf.”
Gebser, 524 U.S. at 290, 118 S. Ct. at 1999. In Floyd v. Waiters, 171 F.3d 1264,
1264 (11th Cir. 1999), this Court elaborated on the “appropriate person”
requirement, stating the school official must be “high enough up the chain-ofcommand that his acts constitute an official decision by the school district itself not
to remedy the misconduct.” Applying this standard, this Court held a school
security guard was not an appropriate person. Floyd v. Waiters, 133 F.3d 786, 788,
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793 & n.15 (11th Cir. 1998), vacated by 525 U.S. 802, 119 S. Ct. 33 (1998),
reinstated in 171 F.3d 1264 (11th Cir. 1999).
The parties agree Principal Blair, Assistant Principal Dunaway, and
Assistant Principal Terrell were appropriate persons capable of putting the Board
on actual notice of sexual harassment and discrimination. The parties dispute,
however, whether Teacher’s Aide Simpson was an “appropriate person” such that
her knowledge is attributable to the Board.
We conclude Teacher’s Aide Simpson was not an “appropriate person” who
could put the Board on notice of sexual harassment and discrimination. No
evidence in the record suggests teacher’s aides at Sparkman have the authority to
discipline students for sexual harassment. See Gebser, 524 U.S. at 290, 118 S. Ct.
at 1999. The principal and assistant principals alone possessed that authority. As a
teacher’s aide, Simpson had to answer to a teacher, the assistant principals, and the
principal, and she was not high enough on the chain-of-command at Sparkman for
her acts to “constitute an official decision by the school district itself not to remedy
the misconduct.” See Floyd, 171 F.3d at 1264. Accordingly, in evaluating
whether the Board had notice of CJC’s sexual harassment, we evaluate only the
knowledge of Principal Blair and Assistant Principals Dunaway and Terrell.
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b. Actual knowledge
We now ask what the Board knew—vis-à-vis Principal Blair or Assistant
Principals Dunaway or Terrell—about CJC’s alleged harassment and
discrimination. Under element two, we are concerned only with the Board’s
knowledge. Williams, 477 F.3d at 1293. The analysis of whether CJC’s alleged
harassment was sufficiently severe, pervasive, and objectively offensive is reserved
for element three. The determination of whether the Board’s response to CJC’s
alleged harassment was deliberately indifferent is reserved for element four.
The Board knew—again, vis-à-vis Blair, Dunaway, or Terrell—the
following facts. The Board admits it had knowledge of CJC’s disciplinary history
that was tersely recorded in the iNOW database. The Board does not contest it had
actual knowledge of CJC’s unrecorded instances of alleged sexual harassment in
January 2010. Administrators learned weeks before the rape that CJC had been
propositioning girls to have sex in bathrooms. On January 13, 2010, ten days
before the rape of Doe, the administrators learned CJC had allegedly
inappropriately touched a female student. We recognize there is a dispute of fact
as to whether Teacher’s Aide Simpson informed Assistant Principal Dunaway a
few minutes before the rape about her proposed sting operation and CJC’s
propositioning of Doe to have sex in the boys’ bathroom. Construing the facts in
favor of Doe for purposes of summary judgment, the Board (through Dunaway)
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had actual knowledge of the use of Doe as rape bait for CJC in the sting operation
and CJC’s propositioning of Doe to have sex. And it is undisputed that the Board
became aware of the rape-bait scheme and the rape when Principal Blair
interviewed Simpson and Doe and discovered these events. At that point, the
Board also definitively knew CJC’s verbal harassment of Doe led Simpson to
implement the sting operation.
3. Was the sexual harassment and discrimination Doe faced, of which the
Board had knowledge, severe, pervasive, and objectively offensive?
As to the third element, we ask whether the sexual harassment and
discrimination, of which the Board had actual knowledge, was sufficiently “severe,
pervasive, and objectively offensive.” Davis, 526 U.S. at 651, 119 S. Ct. at 1675;
see Williams, 477 F.3d at 1294. “Whether gender-oriented conduct rises to the
level of actionable [Title IX] harassment . . . depends on a constellation of
surrounding circumstances, expectations, and relationships, including, but not
limited to, the ages of the harasser and the victim and the number of individuals
involved.” Id. (quotations and citations omitted). To be severe, pervasive, and
objectively offensive, the behavior must be serious enough to have a “systemic
effect” of denying equal access to an education. Id. at 652, 119 S. Ct. at 1676. A
“single instance of sufficiently severe one-on-one peer harassment” cannot have
such a systemic effect in light of “the amount of litigation that would be invited by
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entertaining claims of official indifference to a single instance of one-on-one peer
harassment.” Id. at 652–53, 119 S. Ct at 1676.
This is a unique case because the administrators effectively participated in
CJC’s sexual harassment by setting Doe up in a rape-bait scheme involving CJC in
order to “catch him in the act.” Thus, in considering the third element, we examine
and count (1) CJC’s past sexual harassment of Doe and others; (2) Doe’s
complaints about CJC to the Board (through Simpson and Dunaway) to which the
Board responded by having Doe participate in a sting operation with CJC; (3) the
Board’s “catch in the act” policy that motivated Simpson to conduct, and Dunaway
to approve, a rape-bait scheme with CJC as a participant that directly harassed,
injured, and impacted Doe further; and (4) after the rape, the Board’s utter failure
to respond to Doe’s traumatic injury and experience orchestrated by the Board.
In Williams, this Court reversed the dismissal of a Title IX claim brought by
a female student at the University of Georgia (UGA), who was gang-raped by three
student-athletes in a dorm room. The Williams plaintiff alleged UGA had actual
knowledge of the following forms of discrimination or harassment that she faced.
477 F.3d at 1294. UGA had actual knowledge of prior sexual harassment of
women by the ringleader of the gang-rape, and then despite that conduct UGA
recruited him to play basketball and admitted him as a student. Id. The plaintiff
also alleged UGA had actual knowledge of the rape and the subsequent
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discrimination of the plaintiff caused by the university’s own inadequate response
to the rape. Id.
This Court concluded that UGA’s failure to supervise the ringleader on
campus was deliberately indifferent in light of UGA’s knowledge of his prior
sexual misconduct at other schools. Id. at 1296. This Court also concluded that
UGA again responded with deliberate indifference by waiting almost a year after
the rape to conduct a disciplinary hearing, and by failing to take any precautions to
prevent future attacks by, for example, removing the rapist from student housing or
implementing a more protective sexual assault policy. Id. at 1296–97. As
Williams shows, a school’s deliberately indifferent response to sexual harassment
can create Title IX liability.
Here, a jury similarly could find the Board’s knowledge of CJC’s prior
sexual harassment on multiple occasions; the Board’s catch in the act policy; Doe’s
complaints about CJC; the Board’s knowing use of Doe as rape bait in its sting
operation with CJC; and the Board’s failure to respond at all, much less
adequately, to Doe’s allegations or the rape itself, were sufficiently “severe” and
“objectively offensive” to satisfy the third element.
These facts differ markedly from the “rarely actionable, theoretical single
incident mentioned in Davis.” Williams, 477 F.3d at 1298. We conclude the
harassment here is materially different because the physical act of penetration in
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the bathroom was (1) preceded by CJC repeatedly propositioning Doe for sex for
two weeks and (2) orchestrated by school officials during a botched rape-bait
scheme with CJC. Like the rape in Williams where the ringleader conspired with
his friends beforehand to commit sexual assault, a jury could find CJC’s rape of
Doe was the culmination of “a continuous series of events,” id, at 1298, and was
therefore pervasive. These are highly unique and extreme facts that will hopefully
never again be repeated. A jury could find CJC’s rape of Doe was the culmination
of CJC’s two weeks of harassment and the school’s choice to use Doe as bait for
CJC’s sexual harassment, and thus satisfies the third element.
4. Was the Board deliberately indifferent to the sexual harassment and
discrimination Doe faced?
As to the fourth element, funding recipients are deliberately indifferent “only
where the recipient’s response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648, 119
S. Ct. at 1674. A clearly unreasonable response causes students to undergo
harassment or makes them more vulnerable to it. See Williams, 477 F.3d at 1295–
96. To survive a summary judgment motion, a Title IX plaintiff must present
evidence from which a reasonable jury could conclude “the Title IX recipient’s
deliberate indifference to the initial discrimination subjected the plaintiff to further
discrimination.” Id. at 1296. We therefore ask whether the Board’s decision to use
Doe as bait in a sting operation with CJC, a known and already disciplined sexual
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harasser, combined with the Board’s failure to change any sexual harassment
policies after CJC’s rape of Doe, was clearly unreasonable in light of the known
circumstances. See, e.g., Williams, 477 F.3d at 1297 (“[The School] acted with
deliberate indifference . . . when it responded to the January 14 incident [of
rape.]”).
We conclude a genuine dispute of material fact exists as to whether the
Board’s deliberate indifference to Doe’s “initial discrimination subjected [Doe] to
further discrimination” that prevented her from continuing to attend Sparkman. Id.
at 1296. As outlined above, the Board’s knowledge of CJC’s sexual harassment,
its catch in the act policy, its orchestration of a sting operation using Doe as bait
for CJC’s sexual activities, and its failure to help Doe in any way was patently
odious. In addition, the Board made only one policy change: it discontinued a oneday sexual harassment training workshop for administrators at the Madison County
Administrator Academy. Although Principal Blair believes the Board did not need
to change any policies because “we did as good a job I think as you could do under
the circumstances,” a reasonable jury could disagree.
In evaluating whether the Board’s above conduct was deliberately
indifferent, a jury might conclude the Board’s failure to revise its iNOW
recordkeeping policy was clearly unreasonable. After the rape, a jury could find
the Board should have known it needed to develop a more accurate system for
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recording sexual harassment in order to adequately monitor and respond to student
misconduct and complaints of sexual harassment. As an example, the Board
recorded CJC’s rape of Doe in CJC’s disciplinary file as “[i]nappropriate touching
a female in a boys’ bathroom.” In response to the allegations that CJC was
harassing female students by propositioning them to have sex in bathrooms, the
Board recorded the incident as “[d]isobedience” due to “[c]onstant[]distraction
continued disruption of learning.” The evidence reveals school officials never
recorded CJC’s placement in alternative school for “hugg[ing] a girl in the front of
the cafeteria.” School officials apparently did not find this incident worth
recording, even though CJC had raped Doe three months earlier.
A jury could find the policy of entrusting the school secretary to make
iNOW database entries through an ad hoc, rather than systematic, method of
classifying sexual misconduct was flawed. As Assistant Principal Terrell
conceded, the Board did not have a “normal policy” about iNOW recordkeeping.
A jury could find the Board’s failure to create an accurate and systematic iNOW
database policy after CJC’s rape of Doe was clearly unreasonable.
Additionally, a reasonable jury could find the Board’s decision to continue
shredding students’ disciplinary paper records at the end of each year impeded
school officials’ ability to adequately respond to sexual harassment allegations
against CJC. A jury could conclude the Board’s policy prevented school officials
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from “draw[ing] a connection” between CJC’s January 2010 incidents and prior
sexual harassment complaints. See Doe v. Bd. of Broward Cty., Fla., 604 F.3d
1248, 1261 (11th Cir. 2010).
The Board also has not revised its policy of assigning suspected sexual
harassers to unsupervised janitorial duty. In response to complaints that CJC was
inappropriately touching girls, Principal Blair assigned CJC to 20 days of in-school
suspension during which he was occasionally unsupervised. A jury might find
that, after CJC’s rape of Doe, continuing to allow suspected sexual harassers to
roam a middle school’s halls unsupervised—as punishment for covertly attempting
to have sex with girls in bathrooms—was clearly unreasonable.
A jury could find it was clearly unreasonable for the Board to decline to
remedy the school administrators’ practice of ignoring paper disciplinary records
when deciding how to respond to sexual harassment allegations. Principal Blair
did not examine CJC’s disciplinary records as part of his investigation of CJC.
Assistant Principal Dunaway did not check the supporting paper documentation
that would have been in CJC’s file regarding the October 28, 2009 “[i]nappropriate
touching” infraction, the November 18, 2009 “refusing to obey driver and keep
hands off a female student” infraction, and the November 25, 2009 “[k]issing”
infraction. A reasonable factfinder might conclude the Board’s refusal to direct its
officials to consider all the known circumstances, including the nature, pattern, and
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seriousness of a student’s conduct, was clearly unreasonable. See Doe, 604 F.3d at
1263 (stating funding recipients do not “satisfy their obligations under Title IX
without ever evaluating the known circumstances at all”).
A jury might also find it was clearly unreasonable for the Board not to
improve its sexual harassment training. Teacher’s Aide Simpson stated that
despite her entreaties to Principal Blair and other faculty members, she and other
teacher’s aides received no training on how to handle complaints of sexual
harassment. See Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1178 (10th
Cir. 2007) (holding funding recipient demonstrates deliberate indifference by
failing “to provid[e] adequate training or guidance that is obviously necessary for
implementation of a specific program or policy of the recipient”). Blair admitted
the Board does not have a policy for annually revisiting its sexual harassment
policy, and no records are kept about sexual harassment training. Further, there are
genuine questions of fact and credibility regarding the quantity and quality of the
Board’s purported training. The Board has failed to produce any official
documentation of staff training sessions. Blair can remember one workshop on
sexual harassment over the past few years, but cannot remember the approximate
date or details of the program. Assistant Principal Dunaway, despite being
integrally involved in disciplining students for sexual harassment, was not aware
the Code of Conduct had any section addressing sexual misconduct or harassment.
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Blair could not remember the identity of the Title IX coordinator in 2010; did not
know how employees would discover the identity of the Title IX coordinator; and
students were not told who the Title IX coordinator was. Cf. Williams, 477 F.3d at
1296 (holding plaintiff adequately alleged deliberate indifference when school
“fail[ed] to inform its student-athletes about the applicable sexual harassment
policy”). When the Board’s sexual harassment policies are considered
collectively, a reasonable jury could find the Board’s choice to do nothing to
improve its sexual harassment policies was clearly unreasonable.
Given all these events and circumstances considered cumulatively, there is a
genuine issue of fact as to whether both the Board’s action and inaction were
deliberately indifferent. We do not say that any one action or inaction suffices.
The deliberate indifference standard is rigorous and hard to meet. But the
cumulative events and circumstances here, viewed in the light most favorable to
Doe, are enough to establish deliberate indifference under Title IX.
5. Did the Board’s deliberate indifference to the harassment and
discrimination effectively bar Doe’s access to an educational opportunity
or benefit?
Turning to element five, a genuine dispute of material fact exists as to
whether CJC’s sexual harassment, combined with the Board’s use of Doe in a
rape-bait scheme involving CJC, “effectively bar[red] [Doe’s] access to an
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educational opportunity or benefit.” See Davis, 526 U.S. at 633, 119 S. Ct. at
1666.
A reasonable jury could find the Board’s overall conduct and its clearly
unreasonable response to the rape prevented Doe from continuing her education at
Sparkman. Although Doe unenrolled and moved to North Carolina approximately
two weeks before CJC finished his stint at alternative school and returned to
Sparkman, Doe’s withdrawal does not bar a finding that the Board denied her an
opportunity to continue attending Sparkman. In light of the incomprehensible
rape-bait scheme and the resulting severe suffering Doe endured on January 22,
combined with the refusal of school personnel to acknowledge the rape or begin
implementing new sexual harassment prevention or recordkeeping policies, her
withdrawal was reasonable and expected. See Williams, 477 F.3d at 1297
(holding student’s withdrawal after rape was “reasonable and expected” and did
not foreclose fact that defendant’s deliberate indifference denied her an
opportunity to continue attending the school). A person in Doe’s position could
have no confidence in a school system that orchestrates a rape-bait scheme and
whose disciplinary file describes CJC’s rape of her as “[i]nappropriate touching a
female in a boys’ bathroom.” Indeed, her choice to withdraw now seems prescient
because, only one month after CJC returned to Sparkman, school officials had
“additional problems” with him, including “hugg[ing] a girl in the front of the
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cafeteria.” Had Doe declined to withdraw from Sparkman, she might have again
been CJC’s victim.
Drawing all reasonable inferences in favor of Doe, a jury could find CJC’s
sexual harassment, combined with the Board’s rape-bait scheme involving CJC,
“had a concrete, negative effect” on her ability to receive an education. Davis, 526
U.S. at 654, 119 S. Ct. at 1676. Doe missed time at school due to the rape and had
to transfer due to the school’s clearly unreasonable response. She now attends
counseling sessions, takes medication for depression, no longer participates in
extracurricular activities like basketball, and her grades have suffered. Doe has
satisfied element five.
Doe has satisfied all five elements necessary to create a genuine dispute of
fact on her Title IX student-on-student sexual harassment claim. We therefore
reverse the district court’s grant of summary judgment to the Board.
C. Section 1983 Equal Protection Claims
Next we consider Doe’s 42 U.S.C. § 1983 equal protection claims against
the Board, Blair, Dunaway, Simpson, and Terrell. Section 1983 allows persons to
sue individuals or municipalities acting under the color of state law for violations
of federal law. One such law is the Equal Protection Clause, U.S. Const. amend.
XIV, § 1, which confers a federal constitutional right to be free from sex
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discrimination. See, e.g., Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.
Ct. 2282, 2293 (1979).
Although Title IX and § 1983 sexual harassment claims are similar, our
resolution of Doe’s Title IX suit does not dictate the result of our § 1983 analysis.
The differences in Title IX and § 1983, in addition to the parties’ framing of the
issues, may lead to results that are seemingly inconsistent. For instance, in this
case we concluded the Board may be held liable under Title IX, but, as explained
below, we conclude the Board may not be held liable under § 1983.
Doe has framed her § 1983 equal protection claim against the Board
differently than her Title IX claim. Under Title IX, Doe has asserted the overall
conduct of the appropriate school officials—Blair, Dunaway, and Terrell—whose
conduct was attributable to the Board, was deliberately indifferent. By contrast,
under § 1983 where respondeat superior is unavailable, Doe has alleged only that
(1) the Board’s allegedly inadequate training policies and (2) the “catch in the act”
policy amount to deliberate indifference. In contrast to her Title IX claim, Doe has
thus narrowly framed her § 1983 claim against the Board.
Title IX and § 1983 are different. As the Supreme Court has said, Title IX’s
and § 1983’s protections “are narrower in some respects and broader in others.”
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 256, 129 S. Ct. 788, 796
(2009). For instance, Title IX is enforceable against institutions and programs that
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receive federal funds, but does not authorize suits against individuals. Id. at 257,
129 S. Ct. at 796. Section 1983 equal protection claims, by contrast, may be
brought against individuals and municipalities. Id. The standards for establishing
liability under each mechanism also “may not be wholly congruent.” Id. at 257,
129 S. Ct. at 797. Under Title IX, for example, a plaintiff can establish school
district liability by showing an appropriate school official responded to sexual
harassment with deliberate indifference. Id. A plaintiff bringing a similar § 1983
claim must show a municipal custom, policy, or practice caused the harassment.
Id. at 257–58, 129 S. Ct. at 797.
Now that we have discussed the relationship between § 1983 and Title IX,
we analyze Doe’s § 1983 claims. Doe argues the district court erred in granting
summary judgment to Defendants on her § 1983 claims because Defendants
violated her federally guaranteed right to equal protection by subjecting her to
sexual harassment. Specifically, Doe contends Defendants exhibited deliberate
indifference by failing to adequately prevent and respond to CJC’s sexual
harassment. We first analyze the Board’s municipal liability. We then examine
the individual defendants’ liability.
1. The Board
The Board, which is a municipality, may not be held liable for constitutional
deprivations on the theory of respondeat superior. Denno v. Sch. Bd. of Volusia
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Cty., Fla., 218 F.3d 1267, 1276 (11th Cir. 2000). Instead, “municipal liability is
limited to action for which the municipality is actually responsible.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 479–80, 106 S. Ct. 1292, 1298 (1986). A
municipality therefore may be held liable “only if such constitutional torts result
from an official government policy, the actions of an official fairly deemed to
represent government policy, or a custom or practice so pervasive and well-settled
that it assumes the force of law.” Denno, 218 F.3d at 1276.
Doe contends the Board is subject to municipal liability for adopting the
“catch in the act” policy and allegedly inadequate training policies that led
Simpson and Dunaway to formulate the rape-bait sting operation. Assuming,
without deciding, that these policies are attributable to the Board, the district court
did not err in granting summary judgment.
“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality.” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v.
Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997). The plaintiff “must show
that the municipal action was taken with the requisite degree of culpability and
must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.” Id. The Supreme Court has noted the “deliberate
indifference” standard under § 1983 is a “stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious consequence of his
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action.” Id. at 410, 117 S. Ct. at 1391. A court must “carefully test the link
between the policymaker’s inadequate decision and the particular injury alleged.”
Id. at 410. The evidence must show the deprivation of the constitutional right is a
“plainly obvious consequence” of the municipal action. Id. at 411, 117 S. Ct. at
1392.
The Board could not have foreseen a rape-bait scheme that required an
eighth-grade student to voluntarily subject herself to sexual harassment as a
“known or obvious consequence” of the “catch in the act” policy or its training
policies. See id. at 410, 117 S. Ct. at 1391. While the Board’s policies may have
made a violation of Doe’s rights “more likely” by motivating Simpson to engineer
the rape-bait operation, that alone does not give rise to an inference that the
policies “produced a specific constitutional allegation.” See McDowell v. Brown,
392 F.3d 1283, 1292 (11th Cir. 2004) (quoting Brown, 520 U.S. at 411, 117 S. Ct.
at 1382). It is not obvious a teacher’s aide would craft a sting operation like the
one here in response to (1) the Board’s allegedly inadequate training policies or (2)
a policy requiring witnesses, physical evidence, or an admission of guilt before
disciplining a student for sexual harassment. We accordingly affirm the grant of
summary judgment to the Board on Doe’s § 1983 claim.
2. Principal Blair
Doe asserts the district court erred in granting summary judgment to
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Principal Blair on her § 1983 claim. She says Blair’s inadequate response to CJC’s
known sexual harassment deprived her of equal protection, and he is not entitled to
qualified immunity because he had fair warning his actions violated the Equal
Protection Clause. We agree and reverse.
“[A] governmental official . . . may be held liable under section 1983 upon
a showing of deliberate indifference to known sexual harassment.” Murrell v. Sch.
Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1250 (10th Cir. 1999); see Williams v.
Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1300–02 (11th Cir. 2007)
(discussing government officials’ liability under § 1983 arising from “right to be
free from sex discrimination”); Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.
1999) (applying “deliberate indifference” standard for § 1983 deprivation of
constitutional right to be free from sexual harassment). In order to prevail on a
claim of deliberate indifference to sexual harassment, a plaintiff must prove the
individual defendant “actually knew of and acquiesced in” the discriminatory
conduct. Murrell, 186 F.3d at 1250 (quotation omitted). Qualified immunity,
however, offers complete protection for individual government officials
performing discretionary functions “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,
2738 (1982).
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When a court concludes the defendant was engaged in a discretionary
function, “the burden shifts to the plaintiff to show that the defendant is not entitled
to qualified immunity.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,
1264 (11th Cir. 2004). The parties do not dispute that, at all times relevant to this
appeal, Blair acted in his discretionary capacity. Doe consequently bears the
burden of showing “(1) [Blair] violated a constitutional right, and (2) this right was
clearly established at the time of the alleged violation.” See id.
With regard to the first prong of qualified immunity analysis, there is a
genuine dispute of material fact as to whether Principal Blair violated Doe’s
constitutional right to equal protection. For the reasons explained above in our
Title IX analysis, supra Section IV.B(4), a jury could find Blair’s actions after
CJC’s rape of Doe amounted to deliberate indifference. The evidence shows Blair
crafted and implemented Sparkman’s sexual harassment and recordkeeping
policies. A jury could find that despite these policies’ glaring inadequacies that
were exposed by CJC’s rape of Doe, Blair did virtually nothing in response. The
only change was to discontinue the one-day sexual harassment training workshop
for administrators at the Madison County Administrator Academy. Viewing the
evidence favorably to Doe, doing nothing was a deliberately indifferent response
that subjected Doe to further sexual harassment by depriving her of the opportunity
to continue attending Sparkman.
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As to the second prong, when viewing the evidence favorably to Doe,
Principal Blair violated a clearly established right. A right may be clearly
established for qualified immunity purposes in one of three ways: “(1) case law
with indistinguishable facts clearly establishing the constitutional right; (2) a broad
statement of principle within the Constitution, statute, or case law that clearly
establishes a constitutional right; or (3) conduct so egregious that a constitutional
right was clearly violated, even in the total absence of case law.” Lewis v. City of
W. Palm Beach, Fla., 561 F.3d 1288, 1291–92 (11th Cir. 2009) (citations omitted).
Doe has confined her argument to the second of these methods. Under this
method, “every objectively reasonable government official facing the
circumstances would know that the official’s conduct did violate federal law when
the official acted.” See, e.g., Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir.
2002); see also Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002)
(the “salient question” is whether the state of the law gave “fair warning” the
conduct was unconstitutional).
The relevant question is whether a reasonable government official in Blair’s
position as principal could have believed that “doing nothing” to reform
Sparkman’s sexual harassment and recordkeeping policies in response to CJC’s
rape of Doe was lawful, in light of clearly established law. See Cross v. State of
Ala., State Dep’t of Mental Health & Mental Retardation, 49 F.3d 1490, 1503
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(11th Cir. 1995). Viewing all reasonable inferences in favor of Doe, we conclude
an official in Blair’s position would not have believed doing nothing was lawful in
light of the clearly established principle that deliberate indifference to sexual
harassment is an equal protection violation. See, e.g., Doe v. Sch. Bd. of Broward
Cty., Fla., 604 F.3d 1248, 1261 (11th Cir. 2010) (finding deliberate indifference
when the principal “effectively did nothing” in response to sexual harassment).
We reverse the district court’s grant of summary judgment to Blair on Doe’s
§ 1983 equal protection claim.
3. Assistant Principal Dunaway
The district court also erred in granting summary judgment to Assistant
Principal Dunaway on Doe’s § 1983 equal protection claim. The district court
found Dunaway was entitled to qualified immunity because it could not identify
sufficiently similar case law involving a sexual harassment sting operation. This
was error. Drawing all reasonable inferences in favor of Doe, Dunaway
acquiesced to and ratified Teacher’s Aide Simpson’s plan to send Doe alone into a
bathroom with a known sexual harasser and have Doe pretend to initially welcome
the harasser’s sexual advances. It is not surprising the district court could not find
similar case law. That is because “every objectively reasonable government
official facing the circumstances” would know this irresponsible plan violated the
Equal Protection Clause. See Vinyard, 311 F.3d at 1351. We therefore reverse.
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4. Teacher’s Aide Simpson
Teacher’s Aide Simpson is not entitled to qualified immunity for the same
reason as Assistant Principal Dunaway: she participated in using Doe as rape bait
for CJC’s sexual harassment in the sting operation. The only difference between
their conduct is that Simpson contrived the sting operation, whereas Dunaway
ratified it. We reverse the district court’s grant of summary judgment to Simpson
on Doe’s § 1983 equal protection claim.
5. Assistant Principal Terrell
We affirm the district court’s grant of summary judgment to Assistant
Principal Terrell. Terrell is entitled to qualified immunity because the record does
not show she violated Doe’s constitutional right to equal protection. Holloman,
370 F.3d at 1264 (stating official is entitled to qualified immunity if plaintiff fails
to show “the defendant violated a constitutional right”). Unlike Principal Blair,
Terrell was not ultimately responsible for Sparkman’s sexual harassment policies.
As a subordinate to Blair, she could not dictate the response to CJC’s rape of Doe.
Blair’s deliberately indifferent response consequently cannot be attributed to
Terrell. Unlike Assistant Principal Dunaway and Teacher’s Aide Simpson, there is
no evidence Terrell acquiesced to or ratified the plan to use Doe as rape bait for
CJC in the sting operation. Thus, Dunaway’s and Simpson’s deliberate
indifference also cannot be attributed to Terrell.
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D. Section 1983 Substantive Due Process Claim
The district court did not err in granting summary judgment to Simpson on
Doe’s substantive due process claim. This Court has held deliberate indifference is
not, without more, a basis for finding substantive due process liability in cases
arising in the school context. See Davis v. Carter, 555 F.3d 979, 983–84 (11th Cir.
2009). Doe’s effort to state a claim for a violation of her right to substantive due
process fails. Simpson is entitled to qualified immunity, and we affirm the district
court’s grant of summary judgment.
E. Negligence/Wantonness Against Principal Blair
We now turn from Doe’s federal claims to her Alabama state law claims
brought pursuant to the district court’s supplemental jurisdiction. See 28 U.S.C.
§ 1367(a). Doe argues the district court erred in granting summary judgment to
Principal Blair for state law negligence/wantonness. The district court held Blair
was entitled to state-agent immunity under Alabama law. Doe contends Blair is
not entitled to state-agent immunity because he (1) acted beyond his authority by
failing to comply with his Title IX obligation to prevent, eliminate, and address the
effects of sexual harassment; (2) acted in bad faith by failing to impose effective
discipline when he assigned CJC to unsupervised in-school suspension; and
(3) mistakenly interpreted Title IX by improperly conducting investigations of
sexual harassment allegations. We affirm because, as discussed below, Doe has
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not shown any of the exceptions to Alabama state-agent immunity apply to Blair’s
conduct.
Under Alabama law, “[s]tate-agent immunity protects state employees, as
agents of the State, in the exercise of their judgment in executing their work
responsibilities.” Ex parte Hayles, 852 So. 2d 117, 122 (Ala. 2002). The Alabama
Supreme Court has established a burden-shifting framework for application of the
state-agent immunity test. Ex parte Estate of Reynolds, 946 So. 2d 450, 452, 454–
55 (Ala. 2006). A state agent initially bears the burden of demonstrating that she
was acting in a discretionary function that would entitle her to immunity. Id. If
the state agent makes such a showing, the burden shifts to the plaintiff to show the
state agent “act[ed] willfully, maliciously, fraudulently, in bad faith, beyond his or
her authority, or under a mistaken interpretation of the law.” Ex parte Cranman,
792 So. 2d 392, 402 n.13 (Ala. 2000).
Doe concedes Principal Blair has met his initial burden because his handling
of student disciplinary matters is a discretionary function. The only question is
whether Blair lacks state-law immunity because he (1) acted beyond his authority
by violating Title IX, (2) acted in bad faith, or (3) acted based on a mistaken
interpretation of Title IX. We consider each exception in turn.
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 62 of 75
63
1. Acting beyond authority
First, Doe contends Principal Blair is not entitled to state-agent immunity
because he acted “beyond his authority” in failing to comply with his Title IX
obligation to prevent sexual harassment. Even if we accepted the dubious
proposition that Title IX imposes obligations on Blair—who is an individual
school official, not a Title IX funding recipient—he did not forfeit state-agent
immunity by acting beyond his authority. As the Alabama Supreme Court has
explained, a state agent acts beyond his authority when he “fail[s] to discharge
duties pursuant to detailed rules or regulations, such as those stated on a checklist.”
Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000). The rules or regulations must be
so “detailed” as to “remove a State-agent’s judgment in the performance of
required acts.” Ex parte Spivey, 846 So. 2d 322, 333 (Ala. 2002) (quotation
omitted).
Doe has not alleged how Title IX creates rules or regulations so detailed as
to “remove a State-agent’s judgment in the performance of required acts.” See id.
Doe cites only generally to Title IX’s directive that funding recipients eliminate
sexual harassment, prevent its recurrence, and address its effects. Indeed, Doe has
not cited to any specific rule. The failure to abide by a “broadly stated, general
safety policy,” as opposed to a “detailed rule or checklist,” is insufficient to
abrogate state-agent immunity. Bayles v. Marriott, 816 So. 2d 38, 41–42 (Ala.
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 63 of 75
64
Civ. App. 2001).
2. Bad faith
Moving to the second exception to state-agent immunity, Doe contends
Principal Blair acted in bad faith because he failed to discipline CJC harshly
enough. Bad faith, however, requires more than a showing of incompetence. Bad
faith “is not simply bad judgment or negligence. It imports a dishonest purpose
and means a breach of known duty . . . through some motive of self-interest or ill
will.” Gulf Atl. Life Ins. Co. v. Barnes, 405 So. 2d 916, 924 (Ala. 1981); see also
Ex parte Turner, 840 So. 2d 132, 136 (Ala. 2002) (applying state-agent immunity
where, even though state official exercised poor judgment, evidence showed he
acted in “good faith”). Doe has not pointed to evidence from which a jury could
infer Blair’s disciplinary response to CJC was motivated by self-interest or ill will
towards her.
3. Mistaken Interpretation of Law
Third, Doe argues Principal Blair is not entitled to state-agent immunity
because he acted under a mistaken interpretation of the law. Even assuming Title
IX imposes a personal obligation on Blair, and even further assuming Blair’s
allegedly inadequate disciplinary response to CJC’s conduct was caused by a
misinterpretation of Title IX’s requirements, this exception does not remove
Blair’s state-agent immunity.
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 64 of 75
65
Not every innocent misinterpretation of the law revokes an official’s stateagent immunity under Alabama law. If nothing more were required than an
innocent misinterpretation of the law, “that exception would ‘swallow’ the whole
of the general rule of immunity itself” because “any misstep by any state employee
or other state agent that wrongs another can be said to be beyond his or her
authority and/or committed under a mistaken interpretation of the law.” Segrest v.
Lewis, 907 So. 2d 452, 456 (Ala. Civ. App. 2005). For that reason, the
misinterpretation of the law must be coupled with willfulness, maliciousness, or
bad faith to “pull the agent out from under the umbrella of state-agent immunity.”
Id. The evidence does not show Principal Blair acted with willfulness,
maliciousness, or bad faith.
None of the exceptions to Alabama state-agent immunity are applicable to
Blair. We accordingly affirm the district court’s grant of summary judgment to
Blair on the negligence/wantonness claims.
F. Negligence/Wantonness Against Dunaway
In her consolidated interlocutory appeal, Assistant Principal Dunaway
argues the district court erred in denying her state-agent immunity for
negligence/wantonness on the basis that she acted beyond her authority. The
district court found that, viewing the evidence in the light most favorable to Doe,
Dunaway ratified Teacher’s Aide Simpson’s plan to use Doe as bait to catch CJC
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 65 of 75
66
in the act of sexual harassment. The district court concluded Dunaway exceeded
her authority by ratifying the rape-bait scheme rather than reporting CJC’s sexual
harassment to Principal Blair in accordance with the Policy Manual, which
required a school official who receives a complaint of sexual harassment to report
that complaint to the principal.
We affirm the district court’s denial of state-agent immunity to Assistant
Principal Dunaway. Again, under Alabama law, a state official acts beyond her
authority when she fails to comply with a policy that has “remove[d] a Stateagent’s judgment in the performance of required acts.” Ex parte Spivey, 846 So.
2d at 333. The Alabama Supreme Court’s decision in N.C. v. Caldwell, 77 So. 3d
561 (Ala. 2011), is particularly instructive on the application of this standard when,
as here, a school official has allegedly contravened a school policy.
12
In Caldwell, the plaintiff, a seventh-grade girl, was raped by an older male
student after gym class. Id. at 562. Defendant Caldwell, the girl’s gym teacher,
had assigned the male student to serve as a student aide during the gym class,
despite evidence that other female students informed Caldwell the aide had
directed inappropriate sexual comments toward them. Id. at 562–63. Caldwell
moved for summary judgment on the basis of state-agent immunity. Id. at 563–65.
12 Dunaway contends on appeal that L.N. v. Monroe County Board of Education, 141 So.
3d 466 (Ala. 2013) (per curiam) (no opinion), overruled Caldwell. Her reliance on that decision
is misplaced. See Ala. R. App. P. 53(d) (stating “no opinion” affirmance orders “shall have no
precedential value and shall not be cited in argument or briefs and shall not be used by any court
within this state”).
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67
Plaintiff responded Caldwell was not entitled to immunity because he “acted
beyond his authority” by appointing the male student as his aide and by failing to
report previous complaints of sexual harassment. Id. at 566.
The Alabama Supreme Court reversed the grant of summary judgment to
Caldwell because he failed to follow two school policies. Id. at 568–69. First, the
faculty handbook said, “Any student not scheduled for a class should not attend
that class.” Id. at 569. Since the male student had not been assigned to Caldwell’s
gym class, there was a genuine issue of material fact as to whether Caldwell acted
beyond his authority by appointing the student as an aide for that class. Id.
Second, the school’s code of conduct provided “it shall also be a violation of board
policy for any teacher to tolerate sexual harassment.” Id. (alterations in original
omitted). The court held there was a genuine issue of material fact as to whether
Caldwell acted beyond his authority by failing to report the other girls’ complaints
of sexual harassment. Id.
Based on Caldwell, the terms of the Policy Manual are sufficiently detailed
under Alabama law to create a genuine issue of material fact as to whether
Dunaway acted beyond her authority by failing to report Doe’s sexual harassment
complaints to Principal Blair. Under the Policy Manual, the school official to
whom a complaint of sexual harassment is made “shall make the complaint known
to the [p]rincipal of the school, except in cases where the complaint is against the
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68
[p]rincipal.” The principal “shall investigate the complaint and take appropriate
action.” This language is certainly more narrowly focused than the directive in
Caldwell that no teacher may “tolerate sexual harassment,” id. at 569. Because the
district court did not err in denying Dunaway state-agent immunity, we affirm.
G. Tort of Outrage Against Simpson
Doe next argues the district court erred in granting summary judgment to
Teacher’s Aide Simpson on her Alabama state law claim for the tort of outrage.
We agree and reverse.13
Under Alabama law, the tort of outrage requires the plaintiff to show
“(1) the actor intended to inflict emotional distress, or knew or should have known
that emotional distress was likely to result from his conduct; (2) the conduct was
extreme and outrageous; (3) the defendant’s actions caused the plaintiff distress;
and (4) that the distress was severe.” Harris v. McDavid, 553 So. 2d 567, 569–70
(Ala. 1989). We consider each element in turn.
1. Known or Should Have Known
First, a reasonable jury could conclude Teacher’s Aide Simpson “should
have known” emotional distress was likely to result from her decision to send Doe
into the bathroom alone with CJC to act as bait for his sexual harassment.
13 Simpson has not asserted a state-agent immunity defense. See Ryan v. Hayes, 831 So.
2d 21, 27–28 (Ala. 2002) (stating state-agent immunity doctrine applies to “asserted State-agentimmunity defense”) (emphasis added).
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 68 of 75
69
According to Simpson’s own affidavit, she knew CJC “had been repeatedly
propositioning other female students to have sex in the boys’ bathroom.” On
January 21, 2010, Doe told Simpson CJC had been asking her to have sex, and Doe
sought Simpson’s guidance again on January 22 about how to stop the harassment.
In her meeting with Assistant Principal Dunaway regarding her plan to use Doe as
bait for CJC, Simpson said, “I hope this is legal. I don’t know what I’m doing.”
From all this evidence, a reasonable jury could conclude Simpson knew the
significant danger CJC posed to Doe and severely doubted the legality of her
conduct, presumably due to the risk the plan could misfire and an attack or rape
could occur. Despite her consciousness of this risk, Simpson proceeded with the
sting operation. Moreover, she did not even help personally oversee the operation
because, after speaking to Dunaway and Hallman, Simpson believed “someone
else was handling the situation, so I returned to the gym.” A jury could find
Simpson should have known that sending Doe to meet CJC alone in a bathroom
and using Doe as bait to catch CJC was likely to cause emotional distress,
especially when Simpson declined to personally monitor the sting operation.
2. Extreme and Outrageous Conduct
Moving to the second element of Doe’s tort claim, a reasonable jury could
find Simpson’s conduct was extreme and outrageous. The Alabama Supreme
Court’s decision in Henry v. Georgia-Pacific Corp., 730 So. 2d 119 (Ala. 1998),
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 69 of 75
70
illustrates the type of behavior that is considered extreme and outrageous under
Alabama law. In Henry, the defendant-employer required the plaintiff-employee
to attend counseling sessions. Id. at 119. After the counselor made improper
sexual comments and solicitations during these sessions, the plaintiff notified her
employer of the harassment. Id. at 120. Nonetheless, the employer told her the
sessions were mandatory, which led her to continue the sessions until the counselor
stopped visiting. Id. The court reversed the grant of summary judgment to the
employer, stating a reasonable juror could conclude that requiring the plaintiff to
attend counseling sessions with a known sexual harasser constituted extreme and
outrageous conduct. Id. at 121.
Likewise, a reasonable jury could conclude Simpson’s conduct, like the
employer’s conduct in Henry, constitutes extreme and outrageous conduct.
Simpson, with prior knowledge of CJC’s harassment, pressured a vulnerable
middle school student to subject herself to his sexual advances alone in a
bathroom, despite the obvious risks accompanying the plan. As in Henry, a jury
deserves to decide this issue because “[e]gregious sexual harassment can amount to
the tort of outrage.” Id.
3. Causation
With regard to the third element, a reasonable jury could find Simpson
caused Doe’s emotional distress. Under Alabama law, foreseeability is the “key”
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71
to proximate causation. Vines v. Plantation Motor Lodge, 336 So. 2d 1338, 1339
(Ala. 1976). A person who “by some act or omission sets in motion a series of
events[] is not responsible for consequences of intervention of another agency,
unless at the time of his original act or omission, the act of the intervening agency
could reasonably be foreseen.” Id. In simple terms, where the act of an
intervening agent is reasonably foreseeable, a defendant may be held liable for
damages caused by that agent. See Restatement (Third) of Torts: Liability for
Physical & Emotional Harm § 19 cmt. d (Am. Law Inst. 2010) (“[R]isk is
evaluated by reference to the foreseeable . . . probability of harm of a foreseeable
severity.”). A jury could find Simpson proximately caused Doe’s emotional
distress because CJC’s rape of Doe was a reasonably foreseeable consequence of
the sting operation. Any plan that involves placing a middle school student alone
in a bathroom with a known sexual harasser and asking the student to feign sexual
interest in the harasser poses a high risk of emotional distress.
4. Severity of Emotional Distress
As to the fourth element, a jury could conclude the emotional distress
Simpson caused was severe. It is hard to imagine what could cause emotional
distress more severe than the psychological trauma of rape, and the record is
replete with evidence about the anguish Doe has suffered. We reverse the grant of
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72
summary judgment to Simpson because her conduct satisfies all four elements of
the tort of outrage.
V. CONCLUSION
We reverse the grant of summary judgment to the Board on Doe’s Title IX
claim. To prevail on a student-on-student sexual harassment claim, a plaintiff must
prove the funding recipient had actual knowledge the sexual harassment was
severe, pervasive, and objectively offensive. Applying this standard, there is a
genuine dispute of material fact as to whether Doe has satisfied all five elements
necessary to succeed under Title IX.
Under element one, the parties do not contest the Board is a Title IX funding
recipient. Under element two, Blair, Dunaway, and Terrell were appropriate
persons capable of putting the Board on notice of sexual harassment and
discrimination, but Simpson was not. A jury could find the Board learned all of
the facts leading up to the rape and the fact that CJC had raped Doe.
As to element three, the harassment and discrimination Doe faced—of which
the Board had knowledge—was severe, pervasive, and objectively offensive.
CJC’s sexual harassment of Doe was pervasive because he propositioned Doe for
two weeks, school officials orchestrated the sting operation, and the sting operation
resulted in the rape.
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73
With regard to element four, a jury could find the Board clearly acted
unreasonably and therefore was deliberately indifferent to the sexual harassment
and discrimination Doe faced. Under element five, a jury could find the Board’s
deliberate indifference barred Doe’s opportunity to continue her education at
Sparkman. Since there are genuine questions of fact, the district court erred in
granting summary judgment to the Board on Doe’s Title IX claim.
We affirm the grant of summary judgment to the Board on Doe’s § 1983
claim. Simpson’s rape-bait scheme was not a known or obvious consequence of
the “catch in the act” policy or the Board’s allegedly inadequate training policies.
We reverse the grant of summary judgment to Blair on Doe’s § 1983 equal
protection claim. There is a genuine dispute of material fact as to whether Blair
violated Doe’s constitutional right to equal protection by acting with deliberate
indifference to the rape of Doe. Viewing the evidence favorably to Doe, Blair
violated clearly established law. No reasonable official in Blair’s position would
have believed doing nothing to reform Sparkman’s sexual harassment policies was
lawful in light of the clearly established principle that deliberate indifference to
sexual harassment is an equal protection violation.
We reverse the grant of summary judgment to Dunaway on Doe’s § 1983
equal protection claim. Viewing the evidence favorably to Doe, Dunaway
acquiesced to and ratified the sting operation. She is not entitled to qualified
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74
immunity because every objectively reasonable government official facing the
circumstances would have known the plan to use Doe as rape bait violated the
Equal Protection Clause. For the same reason, we reverse the grant of summary
judgment to Simpson on Doe’s § 1983 equal protection claim.
We affirm the grant of summary judgment to Terrell on Doe’s § 1983 equal
protection claim because Terrell is entitled to qualified immunity. Unlike Blair,
Terrell could not dictate the school’s response to CJC’s rape of Doe, and, unlike
Dunaway, there is no evidence she ratified the sting operation.
We affirm the grant of summary judgment to Simpson for the alleged § 1983
substantive due process violation. Simpson is entitled to qualified immunity
because deliberate indifference is not, without more, a basis for finding substantive
due process liability in cases arising in the school context.
Moving to the state law claims, we affirm the grant of summary judgment to
Blair for negligence/wantonness because he is entitled to state-agent immunity.
Doe has not shown any of the exceptions to Alabama state-agent immunity apply
to Blair’s conduct. We affirm the denial of summary judgment to Dunaway. She
is not entitled to state-agent immunity because there is a genuine dispute as to
whether she acted beyond her authority by failing to report CJC’s sexual
harassment to Blair and instead ratifying Simpson’s sting operation. Finally, we
reverse the grant of summary judgment to Simpson for the tort of outrage because
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75
a jury could find Simpson should have known that emotional distress was likely to
result from the sting operation, using Doe as rape-bait was extreme and
outrageous, the sting operation caused Doe’s distress, and that distress was severe.
In light of the foregoing reasons, the district court’s summary judgment
orders are affirmed in part and reversed in part, and this case is remanded.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
USCA11 Case: 14-12481 Date Filed: 08/12/2015 Page: 75 of 75 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-18-07184/USCOURTS-caDC-18-07184-0/pdf.json | [
[
"Ephraim A. McDowell",
"Amicus Curiae"
],
[
"Connie Cornelia Reshard",
"Appellant"
],
[
"Barbara J. Stevenson",
"Appellee"
]
] | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 18-7184 September Term, 2019
FILED ON: MARCH 20, 2020
CONNIE CORNELIA RESHARD, ESQUIRE,
APPELLANT
v.
BARBARA J. STEVENSON,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00775)
Before: GRIFFITH and MILLETT, Circuit Judges, and WILLIAMS, Senior Circuit
Judge.
J U D G M E N T
This case was considered on the record from the United States District Court for
the District of Columbia and the briefs of the parties and court-appointed amici curiae.
The Court has accorded the issues full consideration and has determined that they do not
warrant a published opinion. See D.C. Cir. R. 36(d). For the reasons set out below, it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Appellant Connie Reshard makes two claims on appeal: one, that the district court
erred when it found that Reshard had not completed service of process on her former
landlord, Barbara Stevenson, and two, that the district court abused its discretion when it
declined to grant a second extension of time for Reshard to complete service. Neither claim
has merit.
We review de novo the district court’s determination that Reshard failed to
complete service of process. Freedom Watch, Inc. v. Org. of the Petroleum Exporting
USCA Case #18-7184 Document #1834447 Filed: 03/20/2020 Page 1 of 3
2
Countries, 766 F.3d 74, 78 (D.C. Cir. 2014). Rule 4 of the Federal Rules of Civil Procedure
provides for the service of an individual defendant by “delivering a copy of the summons
and of the complaint to the individual personally,” or by “delivering a copy of [the
summons and complaint] to an agent authorized by appointment or by law to receive
service of process.” Fed. R. Civ. P. 4(e)(2)(A), (C). Reshard does not assert that Stevenson
ever received a copy of the summons and the complaint, and nothing in the record suggests
that Stevenson ever did. Moreover, to the extent that Stevenson was a non-resident
landlord for whom the Director of the Department of Consumer and Regulatory Affairs
would be an agent authorized by law to receive service pursuant to D.C. Code 42-903(b)(2)
and 14 D.C.M.R. § 203.5, Reshard confirmed in her briefs before us and again at oral
argument that she served a different person, the D.C. Rent Administrator. Finally, Reshard
argues that serving Stevenson’s lawyer was sufficient to effectuate service, [Blue 16], but
it clearly is not. There is no evidence that Stevenson appointed her lawyer to be her agent
for accepting service, nor does the law make a person’s lawyer their agent for such
purposes. See Christensson v. Hogdal, 199 F.2d 402, 405 n.3 (D.C. Cir. 1952). Reshard’s
citation to Fifth Third Bank v. Malone, No. 09-CV-6578, 2010 WL 183344, at *2 (N.D. Ill.
Jan. 20, 2010), is wholly inapposite. There, a district court judge, applying Illinois state
law, authorized service on a defendant’s attorney “as a last resort,” where there was
evidence that the defendant was intentionally evading service. Id. at *4. Here, the district
court specifically found that Reshard “has not presented persuasive evidence that Ms.
Stevenson has intentionally evaded service,” Order (Oct. 5, 2018) at 2, and of course, even
if Reshard could have sought an equivalent authorizing order from the district court in this
case, she did not. In fact, quite the opposite: the district court specifically clarified in a
Minute Order that she could not make service on the defendant’s attorney. Appendix at 4.
Accordingly, Reshard cannot find relief in an authorization she never sought or received.
We review for abuse of discretion Reshard’s second claim, challenging the district
court’s refusal to grant a second extension of time. We find no such abuse. Rule 4(m) of
the Federal Rules of Civil Procedure provides that if defendant is not served within 90
days, the court shall either (1) “on motion or on its own after notice to the plaintiff . . .
dismiss the action without prejudice . . . or order that service be made within a specified
time” or (2) “if the plaintiff shows good cause for the failure, the court must extend the
time for service for an appropriate period.” After Reshard failed to complete service of
process within the requisite 90 days, the district court granted a 60-day extension and
notified Reshard that no additional extensions would be granted. When those 60 days were
up, service still had not been effectuated despite an available statutory mechanism for
service, so the district court dismissed the complaint without prejudice. At the time of
dismissal, none of Reshard’s claims was time-barred, so she likely could have refiled and
completed service if she wanted to. Instead, she filed a motion for reconsideration only as
to the district court’s finding that Stevenson had not been properly served. In sum, Reshard,
who is an attorney filing pro se, neither requested a second extension, nor objected to the
court’s decision not to grant one. On appeal to this court, Reshard did not contend that
good cause existed for her failure to serve. While the district court arguably erred in
foreclosing further extensions in its first order and then in failing to provide additional
advance notice to Reshard before dismissing her action, Reshard raised neither of those
USCA Case #18-7184 Document #1834447 Filed: 03/20/2020 Page 2 of 3
3
claims on appeal. Accordingly, on this record, the district court was solidly in bounds
when it dismissed the case.
Finally, amici curiae offer a slight variation on Reshard’s second claim: that the
district court abused its discretion when it failed to conclude that there was good cause for
Reshard’s delay, which under Rule 4(m), they argue, triggered a mandatory, rather than
discretionary, extension.1 Amici Br. 24–31. The district court, however, explained its
reasons for dismissing the case: Reshard already received a two-month-long extension of
time, Order (Oct. 5, 2018) at 1, she offered no persuasive evidence of intentional evasion
of service, id. at 2, and she would not be unduly prejudiced because she could “re-file her
suit if and when she is better positioned to serve Ms. Stevenson,” id. One could add to this
list the fact, discussed above, that Reshard never asked for a second extension, cf. Wright
& Miller, § 1137 (“a plaintiff’s failure to move for a Rule 6(b) extension may be construed
as an absence of good cause”), and that no “outside factor” prevented service on the
Director of the Department of Consumer and Regulatory Affairs, during the period for
which Stevenson was a non-resident landlord, see Mann v. Castiel, 681 F.3d 368, 374 (D.C.
Cir. 2012) (“Good cause exists ‘when some outside factor . . . rather than inadvertence or
negligence, prevented service.” (quoting Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476
F.3d 1277, 1281 (11th Cir. 2007))). These are as much reasons for a finding of no good
cause to trigger a mandatory extension as they are reasons for not granting a wholly
discretionary extension. Moreover, it’s not clear from the text of Rule 4(m) that a second
or subsequent extension would be mandatory even upon a showing of good cause. At any
rate, the district court sufficiently justified its decision to dismiss the complaint, and did so
in terms that parallel a finding of no good cause.
Accordingly, we affirm the order dismissing the case without prejudice.
Pursuant to Rule 36 of this Court, this disposition will not be published. The clerk
is directed to withhold issuance of the mandate herein until seven days after the disposition
of any timely petition for rehearing or petition for rehearing en banc. See FED. R. APP. P.
41(b); D.C. CIR. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Deputy Clerk
1 The court thanks court-appointed amici curiae, Ephraim A. McDowell and Anton Metlitsky of
O’Melveny & Myers, for their excellent service to the court.
/s/
Daniel J. Reidy
USCA Case #18-7184 Document #1834447 Filed: 03/20/2020 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-16-50110/USCOURTS-ca5-16-50110-0/pdf.json | [
[
"Marisol Flores",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-50105
Cons. w/ 16-50110
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MARISOL FLORES,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 2:15-CR-315 & 2:15-CR-316
Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant–Appellant Marisol Flores appeals the special condition of her
supervised release, arguing that the condition as it appears in the district
court’s written judgment conflicts with that in its oral pronouncement, and
thus must be amended to conform to the pronouncement. Because the written
judgment broadened the restrictions of the oral pronouncement by making the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 15, 2016
Lyle W. Cayce
Clerk
Case: 16-50110 Document: 00513760419 Page: 1 Date Filed: 11/15/2016
No. 16-50105 c/w No. 16-50110
2
special condition mandatory rather than conditional, we VACATE the special
condition in the written judgment and REMAND the case with instructions to
the district court to conform the written judgment to its oral pronouncement.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2015, following nolo contendere pleas, Defendant–Appellant
Marisol Flores was convicted in two separate cases for (1) criminal damage to
property1 and (2) assaulting, resisting, or impeding certain officers or
employees.2 Flores was sentenced in federal district court in Kansas3 to two
concurrent one-year probation terms, during which she was required to comply
with various conditions of supervision. Later that month, the case was
transferred to federal district court in Texas because Flores had since moved
from Kansas to Texas.
In November 2015, Flores’s probation officer filed petitions alleging that
Flores had violated several conditions of her probation and recommending that
Flores’s probation be revoked. On January 20, 2016, the district court held a
hearing on the petitions, at the conclusion of which it found that Flores had
violated her probation. Accordingly, the district court revoked her probation
and resentenced her to consecutive terms of 180 days’ imprisonment and 9
months’ imprisonment. The district court also imposed a one-year term of
supervised release following Flores’s prison terms.4 In addition to the standard
conditions of supervised release adopted by a standing order of the U.S.
1 See 18 U.S.C. § 13; Kan. Stat. Ann. § 21-5813. Because the damage involved less
than $1,000, this is a Class B misdemeanor.
2 See 18. U.S.C. § 111(a)(1). Because her conviction involved simple battery, this is a
Class A misdemeanor. 18 U.S.C. § 3559(a)(6).
3 Flores was convicted in federal court because the charged conduct took place on a
federal military base.
4 This supervised release was exclusively in relation to Flores’s Class A misdemeanor
conviction.
Case: 16-50110 Document: 00513760419 Page: 2 Date Filed: 11/15/2016
No. 16-50105 c/w No. 16-50110
3
District Court for the Western District of Texas,5 the district court also
imposed a special condition on Flores’s supervised release:
Now, I’m showing that you don’t have a place to live when you get
out of these sentences. If that’s the case, if we do not have an
approved place for you to live, Ms. Flores, then the first six months
of your term of supervision you will reside in a residential reentry
center for a period of those six months, and you shall observe the
rules of that facility. Further, once employed, you shall pay 20–25
percent of your weekly gross income for your subsistence, as long
as that amount does not exceed the daily contract rate.[6]
Flores did not object to this condition at sentencing. A few days later, the
district court issued its written judgment, which mirrored its oral
pronouncement at the hearing except in one respect. With regard to the special
condition of supervision, the district court’s written order provided: “[Flores]
shall reside in a Residential Reentry Center for a period of six (6) months and
shall observe the rules of that facility.” Flores timely appealed.
II. STANDARD OF REVIEW
Normally, when an issue is raised for the first time on appeal, we review
it for plain error. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.
2006). However, when a special condition of supervised release in the written
judgment is alleged to conflict with that in the oral sentence, the defendant
“had no opportunity at sentencing to consider, comment on, or object to the
special condition[].” Id. Accordingly, we review the district court’s imposition
of that special condition for abuse of discretion. Id. A district court abuses its
discretion in imposing a special condition of supervised release if the condition
5 See Conditions of Probation and Supervised Release (W.D. Tex. July 18, 2011),
http://www.txwp.uscourts.gov/USPO/Supervision%20Documents/Order%20-%20Conditions
%20of%20Probation%20and%20SR%202011.pdf. 6 The U.S. Sentencing Guidelines provide that “on a case-by-case basis . . . [r]esidence
in a community treatment center, halfway house or similar facility may be imposed as a
condition of supervised release.” U.S.S.G. § 5D1.3(e)(1).
Case: 16-50110 Document: 00513760419 Page: 3 Date Filed: 11/15/2016
No. 16-50105 c/w No. 16-50110
4
in its written judgment conflicts with the condition as stated during its oral
pronouncement. United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003) (per
curiam). This is because “a defendant has a constitutional right to be present
at sentencing.” Id. This right is rooted in the Confrontation Clause of the
Sixth Amendment, but is also protected by the Due Process Clause of the Fifth
Amendment when “the defendant is not actually confronting witnesses or
evidence against him.” Bigelow, 462 F.3d at 381 (quoting United States v.
Gagnon, 470 U.S. 522, 526 (1985)); see also Fed. R. Crim. P. 43(a)(3) (“[T]he
defendant must be present at . . . sentencing.”). If a special condition7 appears
in a written judgment but was not included in the oral pronouncement at the
sentencing hearing, or conflicts with that in the oral pronouncement, the
defendant is deprived of her “constitutional right to be effectively present
because [s]he did not receive sufficient notice that th[is] . . . special condition[]
would be imposed in the written judgment.” Bigelow, 462 F.3d at 382. This
lack of notice deprives the defendant of the ability to “object or provide evidence
why those conditions were not warranted.” Id. (citing Gagnon, 470 U.S. at
526). “Therefore, if the written judgment conflicts with the sentence
pronounced at sentencing, that pronouncement controls.” Id. (citing United
States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam)). In the event
of such a conflict, we vacate the conflicting condition contained in the written
7 This rule does not apply to “mandatory, standard, or recommended” conditions of
supervised release. United States v. Torres–Aguilar, 352 F.3d 934, 938 (5th Cir. 2003) (per
curiam). The presence of such conditions in the written judgment but not the oral
pronouncement does not create a conflict. Id. However, residence in a reentry center is not
a mandatory or recommended condition of supervised release. See 18 U.S.C. § 3583(d);
U.S.S.G § 5D1.3(c). Nor is it one of the standard conditions contained in the standing order
of the District Court for the Western District of Texas. See Conditions of Probation and
Supervised Release, supra, at 2–4. Rather, both the standing order and the Sentencing
Guidelines explicitly identify “Community Confinement” (i.e., residence in a reentry center)
as a special condition. Id. at 4; U.S.S.G. § 5D1.3(e)(1). Both parties agree that the condition
at issue here was not such a “mandatory, standard, or recommended” condition but rather a
special condition.
Case: 16-50110 Document: 00513760419 Page: 4 Date Filed: 11/15/2016
No. 16-50105 c/w No. 16-50110
5
judgment and remand the case with instructions that the district court
conform the written judgment to the oral pronouncement. See United States
v. Mudd, 685 F.3d 473, 480 (5th Cir. 2012); Bigelow, 462 F.3d at 384. If,
however, we determine that the discrepancy between the two is merely an
ambiguity, we examine the entire record to determine the sentencing court’s
intent in imposing the condition. See United States v. Warden, 291 F.3d 363,
365 (5th Cir. 2002).
III. CONFLICT OR AMBIGUITY?
Flores argues that the discrepancy in the special condition between the
oral pronouncement and the written judgment is a conflict rather than a mere
ambiguity, and thus the written judgment should be amended to conform to
the oral pronouncement. We agree.
In addressing discrepancies between the oral pronouncement and the
written judgment, “[t]he key determination is whether the discrepancy
between the [two] is a conflict or merely an ambiguity that can be resolved by
reviewing the rest of the record.” United States v. Mireles, 471 F.3d 551, 558
(5th Cir. 2006). The crucial factor upon which we have relied in differentiating
between a conflict and an ambiguity is whether the written judgment
“broadens the restrictions or requirements of supervised release,” id., or
“impos[es] a more burdensome requirement” than that of the oral
pronouncement, Bigelow, 462 F.3d at 383. If so, we have repeatedly found a
conflict, rather than a mere ambiguity, between the oral pronouncement and
the written judgment. See United States v. Alainz–Allen, 579 F. App’x 255, 256
(5th Cir. 2014) (per curiam) (finding conflict where oral pronouncement
prohibited defendant from dating or cohabitating with minors and from
possessing explicit photos of children while written judgment prohibited dating
or cohabitating with anyone with minor children and from possessing any
explicit materials in any medium); United States v. Tang, 718 F.3d 476, 487
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(5th Cir. 2013) (per curiam) (finding conflict where oral pronouncement
prohibited defendant from cohabitating with anyone with children under the
age of 18 while written judgment prohibited both cohabitation with or dating
such an individual); Mudd, 685 F.3d at 480 (finding conflict where oral
pronouncement merely “recommended . . . treatment instead of testing” while
written judgment required defendant to submit to testing); Bigelow, 462 F.3d
at 383–84 (finding conflict where oral pronouncement required defendant to
merely notify his probation officer before obtaining any form of identification
while the written judgment required the defendant to obtain prior approval
before doing so); United States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003)
(per curiam) (finding conflict where oral pronouncement required defendant to
perform 120 hours of community service within the first year of supervised
release while written judgment required 125 hours within two years); United
States v. Ramos, 33 F. App’x 704, at *3–4 (5th Cir. 2002) (per curiam) (finding
conflict where oral pronouncement required substance abuse treatment while
written judgment required substance abuse treatment and testing).
Similarly, the district court’s written judgment here “broadens the
restrictions or requirements of [Flores’s] supervised release,” Mireles, 471 F.3d
at 558, and “impos[es] a more burdensome requirement” on Flores than the
oral pronouncement, Bigelow, 462 F.3d at 383, by eliminating her ability to
live in approved housing of her choosing. When a right is acknowledged in the
oral pronouncement but extinguished in the written judgment, the two conflict
because the written judgment is more burdensome than the oral
pronouncement. See Mudd, 685 F.3d at 480; Bigelow, 462 F.3d at 383–84.
Here the district court’s oral pronouncement stated that Flores would be
afforded the ability to live in an approved place of her choosing upon her
release, but the written judgment extinguished this possibility. Flores had the
right to find an approved place to live under the terms of the oral
Case: 16-50110 Document: 00513760419 Page: 6 Date Filed: 11/15/2016
No. 16-50105 c/w No. 16-50110
7
pronouncement but lost that right under the terms of the written judgment.
Therefore the two conflict and the oral pronouncement controls. Because we
conclude that this discrepancy is a conflict rather than a mere ambiguity, the
Government’s argument that we must examine the record to discern the
district court’s intent is inapposite. See Warden, 291 F.3d at 365.
We disagree with the Government’s position that the special condition
as articulated in the district court’s oral pronouncement need not be
interpreted as conditional. The Government argues that the word “if” in the
district court’s oral pronouncement need not imply a conditional statement but
rather can be used to mean “given that” or “because.” The Government cites
no support for its interpretation and, furthermore, this interpretation defies
common grammatical usage. Grammatically, “if” is widely understood to
introduce a conditional clause, which is a clause that “state[s] a condition or
action necessary for the truth or occurrence of the main statement of a
sentence.” PORTER G. PERRIN, WRITER’S GUIDE AND INDEX TO ENGLISH 500
(rev. ed. 1950); see Condition, BLACK’S LAW DICTIONARY (10th ed. 2014) (using
the word “if” to describe examples of conditions); BRYAN A. GARNER, GARNER’S
MODERN AMERICAN USAGE 436 (3d ed. 2009) (“Use if for a conditional idea . .
. .”); id. at 916 (using “if” in its example of a conditional sentence); PERRIN,
supra, at 601 (“If is a subordinating conjunction introducing a condition . . . .”).
So too should it be understood in the district court’s oral pronouncement.
IV. CONCLUSION
For the foregoing reasons, we VACATE the special condition in the
written judgment and REMAND the case with instructions to the district court
to conform the written judgment to its oral pronouncement.8
8 In view of the fact that Flores’s release date—December 17, 2016—is imminent, the
district court may decide, after proper notice to the parties, to determine whether Flores has
an approved place to live upon her release.
Case: 16-50110 Document: 00513760419 Page: 7 Date Filed: 11/15/2016 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_22-cv-00701/USCOURTS-caed-1_22-cv-00701-4/pdf.json | [
[
"Jody Barry",
"Plaintiff"
],
[
"Teischa Benson",
"Plaintiff"
],
[
"Carson Brenda",
"Plaintiff"
],
[
"Lori Davies",
"Plaintiff"
],
[
"Sadie Floding",
"Plaintiff"
],
[
"Lynnetta Klam",
"Plaintiff"
],
[
"Matthew Peterson",
"Plaintiff"
],
[
"Colin Strub",
"Plaintiff"
],
[
"Thomson International, Incorporated",
"Defendant"
]
] | 1
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[PROPOSED] STIPULATED PROTECTIVE ORDER Case No.: 1:22-cv-00701 JLT-CDB
Robert L. Sallander, Esq., (SBN 118352)
[email protected]
Helen H. Chen, Esq., (SBN 213150)
[email protected]
GREENAN, PEFFER, SALLANDER & LALLY LLP
2000 Crow Canyon Place, Suite 380
San Ramon, California 94583
Telephone: (925) 866-1000
Facsimile: (925) 830-8787
Attorneys for Defendants
THOMSON INTERNATIONAL, INC.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MATTHEW PETERSON, SADIE FLODING,
COLIN STRUB, CARSON BRENDA, JODY
BARRY, TEISCHA BENSON, LYNNETTA
KLAM, and LORI DAVIES,
Plaintiff(s),
v.
THOMSON INTERNATIONAL,
INCORPORATED, a California corporation;
DOES 1-10, INCLUSIVE; and ROE
ENTITIES 1-10, INCLUSIVE,
Defendant(s).
Case No.: 1:22-cv-00701 JLT-CDB
STIPULATED PROTECTIVE ORDER
Magistrate Judge: Christopher D. Baker
Date Action Filed: June 10, 2022
Trial Date: March 26, 2024
IT IS HEREBY STIPULATED AND AGREED by and between the Parties executing this
stipulation, by and through their respective counsel of record, that in order to facilitate the
exchange of information and documents which may be subject to confidentiality limitations on
disclosure due to federal laws, state laws, and privacy rights, the Parties stipulate as follows:
1. SCOPE: This Order governs the handling of all documents, testimony and information
produced, given or filed herein by any party and designated as "CONFIDENTIAL." A
party designating such documents, testimony or information as "CONFIDENTIAL" is
herein referred to as a DESIGNATING PARTY. This Order applies to any documents
previously produced to the parties or counsel.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
2. CONFIDENTIAL INFORMATION: A DESIGNATING PARTY may designate as
"CONFIDENTIAL" any document, testimony, or information the DESIGNATING
PARTY believes in good faith to contain confidential, personal, business, financial, trade
secret, or other proprietary information by conspicuously writing, typing, or stamping on
the face of such document, answer or transcript the word "CONFIDENTIAL" or by
otherwise notifying all counsel in writing, and, in the case of deposition transcripts and
exhibits, also the court reporter, within 30 days from the receipt of the deposition transcript.
Any documents, testimony, or information designated as "CONFIDENTIAL" by a
DESIGNATING PARTY is herein referred to as CONFIDENTIAL INFORMATION.
3. CHALLENGES:
3.1 Should any party object to the designation of a document, testimony or information
as "CONFIDENTIAL," such party shall give the DESIGNATING PARTY
reasonable notice thereof. The DESIGNATING PARTY shall respond within 30
business days. The Parties shall make good faith efforts to resolve the dispute
informally. If efforts to resolve the dispute over documents marked
CONFIDENTIAL, the disputing party may apply to the Court for a ruling that the
CONFIDENTIAL INFORMATION shall not be so treated. Until this Court enters
an Order, if any, changing the designation of the CONFIDENTIAL
INFORMATION, such CONFIDENTIAL INFORMATION shall be treated by all
parties in accordance with this Order.
3.2 Except upon further Order of this Court, CONFIDENTIAL INFORMATION shall
be disclosed only to the Court, counsel of record for the parties, including in-house
counsel and co-counsel retained for this litigation (and their administrative staffs
on a "need to know" basis), individual parties, class representatives, any officer or
employee of a party, to the extent deemed necessary by counsel for the prosecution
or defense of this litigation, and consulting or testifying experts retained by the
parties retained for the prosecution or defense of this litigation, any authors or
recipients of the CONFIDENTIAL INFORMATION, the Court, Court personnel,
and court reporters, and witnesses (the "PERMITTED RECIPIENTS"). No person
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[PROPOSED] STIPULATED PROTECTIVE ORDER
receiving CONFIDENTIAL INFORMATION shall disclose them or their contents
to any person other than the PERMITTED RECIPIENTS.
3.3 Consultants or expert witnesses retained for the prosecution or defense of this
litigation shall execute a copy of the Certification annexed to this Order as Exhibit
“A” before being shown or given any CONFIDENTIAL INFORMATION.
3.4 Witnesses (other than any authors or recipients of the CONFIDENTIAL
INFORMATION) shall sign the Certification before being shown a confidential
document.
4. USE:
4.1 All CONFIDENTIAL INFORMATION shall be used solely for the preparation
for and use at the trial of this action or in other actions involving individuals
represented the same counsel for Plaintiffs and related to the 2020 Salmonella
outbreak that is at issue in this litigation and shall not be used or disclosed by any
receiving person for any other purpose, including any commercial or business
purpose.
4.2 Counsel of record in this litigation receiving CONFIDENTIAL INFORMATION
shall be allowed to disclose them or their contents to any other person only upon
order of the Court or upon receipt of written permission from opposing counsel
granting such disclosure.
4.3 Counsel may permit expert(s) hired by any party in anticipation of litigation to
review CONFIDENTIAL INFORMATION, but counsel must first obtain from
each expert a written statement confirming the expert's agreement to comply with
every element of this Protective Order. Said expert shall agree that the
CONFIDENTIAL INFORMATION shall not be disclosed to any other person,
said documents shall not be photocopied or reproduced by any other means, and
said documents shall be destroyed after conclusion of this action.
5. CLAW-BACK:
5.1 The inadvertent production by any of the undersigned Parties or non-Parties to
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[PROPOSED] STIPULATED PROTECTIVE ORDER
this action of any document, testimony, or information during discovery in this
action without a "CONFIDENTIAL" designation, shall be without prejudice to
any claim that such item is "CONFIDENTIAL" and such Party shall not be held
to have waived any rights by such inadvertent production.
5.2 In the event that any document, testimony or information that is subject to a
"CONFIDENTIAL" designation is inadvertently produced without such
designation, the Party that inadvertently produced the document shall give written
notice of such inadvertent production within twenty (30) days of discovery of the
inadvertent production, together with a further copy of the subject document,
testimony or information designated as "CONFIDENTIAL" (the
"INADVERTENT PRODUCTION NOTICE"). Upon receipt of such
INADVERTENT PRODUCTION NOTICE, the Party that received the
inadvertently produced document, testimony, or information shall promptly
destroy the inadvertently produced document, testimony, or information and all
copies thereof, or, at the expense of the producing Party, return such together with
all copies of such document, testimony, or information to counsel for the
producing Party and shall retain only the designated CONFIDENTIAL
MATERIAL.
5.3 This provision is not intended to apply to any inadvertent production of any
Information protected by attorney-client or work product privileges. In the event
that this provision conflicts with any applicable law regarding waiver of
confidentiality through the inadvertent production of documents, testimony, or
information, such law shall govern.
6. NON-WAIVER:
6.1 Notwithstanding the foregoing provisions, this Order shall be without prejudice to
the right of any party to challenge the propriety of discovery on any grounds
including, but not limited to, relevance, privilege, and materiality.
6.2 Notwithstanding the foregoing provision, this Order shall not restrict in any
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[PROPOSED] STIPULATED PROTECTIVE ORDER
manner the right of any party to offer or use as evidence at the trial of this action
any CONFIDENTIAL INFORMATION, and nothing contained herein shall be
construed as a waiver of any objection which might be raised as to the
admissibility at trial of any evidentiary material.
7. FILING:
7.1 If CONFIDENTIAL INFORMATION needs to be filed in this litigation, the
filing party shall provide notice to the designating party five (5) business days
prior to filing of their intent to file said documents. Thereafter, within five (5)
business days of receiving the request, the designating party shall either 1.
indicate filing party may file the documents openly or 2. file contemporaneously
with filing party a Motion to Seal justifying the sealing of the documents under
federal law. If designating party fails to timely respond to requests from filing
party to file a Motion to Seal, filing party may openly file the documents on the
record. Nothing prohibits designating party from thereafter filing a Motion to
Compel seeking to remove those documents from the record and file them under
seal. In the event filing party is unable to notify designating party prior to filing
any CONFIDENTIAL INFORMATION because of time limitations or other
justifiable reason, filing party is obligated to file a Motion to Seal in the first
instance.
8. RETURN: All CONFIDENTIAL INFORMATION, and all copies of CONFIDENTIAL
INFORMATION, shall be returned to counsel for the DESIGNATING PARTY,
or destroyed, within thirty (30) days of the conclusion of this action, whether by
dismissal, settlement, or entry of judgment. All CONFIDENTIAL
INFORMATION so returned shall be accompanied by an affidavit of the
returning counsel attesting to the fact that no copies have been retained and that
any and all copies known to them have been destroyed.
9. MISCELLANEOUS:
9.1 This Order may be modified by further order of this Court or by agreement of
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[PROPOSED] STIPULATED PROTECTIVE ORDER
counsel for the parties, subject to the approval of the Court, provided that any
such agreement be memorialized in the form of a stipulation that shall be filed
with the Clerk and made a part of the record in the case.
9.2 If any person subject to this Order who has custody of any CONFIDENTIAL
INFORMATION receives a subpoena or other process from any government or
other person or entity demanding production of CONFIDENTIAL
INFORMATION, the recipient of the subpoena shall promptly give notice of the
same by electronic mail transmission, followed by either express mail or
overnight delivery to counsel of record for the DESIGNATING PARTY, and
shall furnish such counsel with a copy of the subpoena. Upon receipt of this
notice, the DESIGNATING PARTY may, in its sole discretion and at its own
cost, move to quash or limit the subpoena, otherwise oppose production of the
CONFIDENTIAL INFORMATION, and/or seek to obtain confidential treatment
of such CONFIDENTIAL INFORMATION from the subpoenaing person or
entity to the fullest extent available under law. The recipient of the subpoena may
not produce any CONFIDENTIAL INFORMATION pursuant to the subpoena
prior to the date specified for production on the subpoena.
9.3 The Parties may designate any documents produced by third parties, whether in
response to a subpoena or other request, as CONFIDENTIAL by providing
written notice to the opposing Party within ten (10) business days of receipt of
said documents.
9.4 This Order shall continue to be binding after the conclusion of this action and all
subsequent proceedings arising from this action, except that a Party may seek the
written permission of the DESIGNATING PARTY or may move the Court for
relief from the provisions of this Order. To the extent permitted by law, the Court
shall retain jurisdiction to enforce, modify, or reconsider this Order, even after the
action is terminated.
9.5 After this Order has been signed by counsel for all Parties, it shall be presented to
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[PROPOSED] STIPULATED PROTECTIVE ORDER
the Court for entry. Counsel agree to be bound by the terms set forth herein with
regard to any CONFIDENTIAL INFORMATION that has been produced before
the Court signs this Order.
IT IS SO STIPULATED.
GRUBER LAW GROUP
Dated: February 24, 2023 By: /s/ Eric Gruber
Eric Gruber, Esq.
3626 Fair Oaks Boulevard, Suite 100
Sacramento, CA 95864
Phone: 415.868.5297
Fax: 415.325.5905
Attorneys for Plaintiffs
NICOLET LAW OFFICE S.C.
Dated: February 24, 2023 By: s/Lindsay Lien Rinholen
Lindsay Lien Rinholen, Esq.
517 Second Street, Suite 205
Hudson, WI 54016
Telephone: 1-855-NICOLET
Facsimile: 715-304-3651
Attorneys for Plaintiffs
GREENAN, PEFFER, SALLANDER &
LALLY LLP
Dated: February 24, 2023 By: /s/Robert L. Sallander
Robert L. Sallander, Esq. SBN 118352
Helen H. Chen, Esq. SBN 213150
2000 Crow Canyon Place, Suite 380
P.O. Box 10
San Ramon, California 94583
Telephone: (925) 866-1000
Facsimile: (925) 830-8787
Attorneys for Defendant
IT IS SO ORDERED.
Dated: February 27, 2023 ___________________ _
UNITED STATES MAGISTRATE JUDGE
Case 1:22-cv-00701-JLT-CDB Document 40 Filed 02/27/23 Page 7 of 8
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[PROPOSED] STIPULATED PROTECTIVE ORDER
EXHIBIT “A”
CERTIFICATION
I hereby certify my understanding that Confidential Information is being provided to me
pursuant to the terms and restrictions of the Protective Order dated _____________ in Matthew
Peterson, et al. v. Thomson International, Incorporated, Case No. 1:22-cv-00701-JLT-CDB. I
have been given a copy of that Order and read it. I agree to be bound by the Order. I will not
reveal the Confidential Information to anyone, except as allowed by the Order. I will maintain
all such Confidential Information – including copies, notes, or other transcriptions made
therefrom – in a secure manner to prevent unauthorized access to it. No later than thirty (30)
days after the conclusion of this action, I will return the Confidential Information – including
copies, notes or other transcriptions made therefrom – to the counsel who provided me with the
Confidential Information. I hereby consent to the jurisdiction of the United States District Court
for the Eastern District of California for the purpose of enforcing the Protective Order.
Dated: _________________
______________________________________________
Name
Case 1:22-cv-00701-JLT-CDB Document 40 Filed 02/27/23 Page 8 of 8 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_13-cv-01498/USCOURTS-caed-1_13-cv-01498-10/pdf.json | [
[
"Bernardina Rodriguez",
"Plaintiff"
],
[
"Taco Bell Corp.",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
BERNARDINA RODRIGUEZ,
Plaintiff,
v.
TACO BELL CORP.,
Defendant.
Case No. 1:13-cv-01498-SAB
ORDER DIRECTING OFFICE OF THE
CLERK TO TERMINATE JESSICA
SIMMONS FAIRBAIRN AS ATTORNEY
OF RECORD FOR DEFENDANT
On October 27, 2014, Defendant filed a notice that Jessica Simmons Fairbairn is no
longer affiliated with the law firm representing Defendant and requesting that she be removed as
attorney of record.
Accordingly, IT IS HEREBY ORDERED that the Clerk’s Office shall terminate Jessica
Simmons Fairbairn as the attorney of record for Defendant.
IT IS SO ORDERED.
Dated: October 30, 2014
UNITED STATES MAGISTRATE JUDGE
Case 1:13-cv-01498-SAB Document 69 Filed 10/31/14 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alsd-1_05-cv-00254/USCOURTS-alsd-1_05-cv-00254-0/pdf.json | [
[
"Jo Anne B. Barnhart",
"Defendant"
],
[
"Gloria Jean Salter",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GLORIA JEAN SALTER, :
Plaintiff, :
vs. :
CIVIL ACTION 05-0254-CB-M
JO ANNE B. BARNHART, :
Commissioner of
Social Security, :
Defendant. :
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits
and Supplemental Security Income (hereinafter SSI). The
action was referred for report and recommendation pursuant to
28 U.S.C. § 636(b)(1)(B). Oral argument was waived in this
action (Doc. 17). Upon consideration of the administrative
record and the memoranda of the parties, it is recommended
that the decision of the Commissioner be reversed, that this
action be remanded, and that judgment be entered in favor of
Plaintiff Gloria Jean Salter and against Defendant Jo Anne B.
Barnhart.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 1 of 10
2
and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983), which must be supported by substantial
evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971).
The substantial evidence test requires "that the decision
under review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla,
but less than a preponderance." Brady v. Heckler, 724 F.2d
914, 918 (11th Cir. 1984), quoting Jones v. Schweiker, 551
F.Supp. 205 (D. Md. 1982).
Plaintiff was born October 19, 1959. At the time of the
most recent administrative hearing, Salter was forty-three
years old, had completed an eleventh-grade education but did
get a Graduate Equivalency Degree (Tr. 599), and had previous
work experience as a sewing machine operator, a
cashier/checker, a hospital food service worker, and a scanner
operator (Tr. 611). In claiming benefits, Plaintiff alleges
disability due to a herniated disk and arthritis of the knee
and ankle (Doc. 11).
The Plaintiff filed protective applications for
disability benefits and SSI on April 1, 2002 (Tr. 79-82, 568-
72). Benefits were denied following a hearing by an
Administrative Law Judge (ALJ) who determined that although
Salter could not return to her past relevant work, there were
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 2 of 10
1The Court notes that the ALJ did consider—and specifically
rejected—the pain form completed by Dr. Barnes (Tr. 20). Therefore,
there will be no discussion of this evidentiary material as “new
evidence.”
3
sedentary jobs in the national economy which she could perform
(Tr. 10-25). Plaintiff requested review of the hearing
decision (Tr. 26-28) by the Appeals Council, but it was denied
(Tr. 6-9).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence. Specifically, Salter
alleges that: (1) There is new evidence which needs to be
considered; (2) the ALJ did not properly consider the
opinions and conclusions of her treating physician; (3) the
ALJ improperly discounted her claims of pain; (4) the ALJ did
not present a proper hypothetical question to the vocational
expert; and (5) she is not capable of performing sedentary
work (Doc. 11). Defendant has responded to—and denies—these
claims (Doc. 14).
Plaintiff’s first claim is that there is new medical
evidence which needs to be considered (Doc. 11, pp. 5-7).
Salter points to the evidence found at Tr. 565-66, a clinical
assessment of pain completed by treating physician, Dr.
Stanley Barnes,1 and Tr. 581-82, a clinical assessment of pain
completed by treating physician, Dr. Thomas L. Yearwood.
It should be noted that "[a] reviewing court is limited
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 3 of 10
4
to [the certified] record [of all of the evidence formally
considered by the Secretary] in examining the evidence."
Cherry v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985).
However, “new evidence first submitted to the Appeals Council
is part of the administrative record that goes to the district
court for review when the Appeals Council accepts the case for
review as well as when the Council denies review.” Keeton v.
Department of Health and Human Services, 21 F.3d 1064, 1067
(11th Cir. 1994). However, “when the [Appeals Council] has
denied review, we will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision
is supported by substantial evidence.” Falge v. Apfel, 150
F.3d 1320, 1323 (11th Cir. 1998), cert. denied, 525 U.S. 1124
(1999).
If, however, the Appeals Council accepts the case for
review, we consider that new evidence as well, though it is to
be examined differently from the balance of the evidence. See
Falge, 150 F.3d at 1323. Keeton directs this Court to look at
the new evidence and determine whether it meets the threeprong standard for remanding this action. Keeton, 21 F.3d at
1068. To make a determination of remand, "the claimant must
establish that: (1) there is new, noncumulative evidence; (2)
the evidence is 'material,' that is, relevant and probative so
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 4 of 10
5
that there is a reasonable possibility that it would change
the administrative result, and (3) there is good cause for the
failure to submit the evidence at the administrative level."
Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986).
In examining the action at hand, the Court notes that the
Appeals Council denied review of the additional evidence (Tr.
6). The Court understands Plaintiff to claim that the Appeals
Council improperly denied review of the new evidence (see Doc.
11, pp. 5-7). Therefore, this Court will review the new
evidence to see if the Appeals Council improperly denied
review. Falge, 150 F.3d at 1324.
The new evidence is a clinical assessment of pain
completed by Dr. Thomas L. Yearwood which expressed his
opinion that Salter’s pain would distract her from performing
her daily activities or work (Tr. 581-82). Yearwood further
stated that physical activity would greatly increase her pain
to the degree that she would be distracted or abandon the task
altogether; additionally, her pain medications would cause
some side effects but would not create serious problems.
The ALJ referred to Yearwood as a “pain management
specialist” in summarizing his treatment of Salter using nerve
blocks, prescription medication, and physical therapy over a
two-year period (Tr. 17-18). After summarizing all of the
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 5 of 10
2Propoxyphene napsylate, more commonly known as Darvocet, is a
class four narcotic used “for the relief of mild to moderate pain”
and commonly causes dizziness and sedation. Physician's Desk
Reference 1443-44 (52nd ed. 1998).
3Ultram is an analgesic “indicated for the management of
moderate to moderately severe pain.” Physician's Desk Reference 2218
(54th ed. 2000).
4Skelaxin is used “as an adjunct to rest, physical therapy, and
other measures for the relief of discomforts associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 830
(52nd ed. 1998).
5Zanaflax “is a short-acting drug for the acute and intermittent
management of increased muscle tone associated with spasticity.”
Physician's Desk Reference 3204 (52nd ed. 1998).
6Robaxin “is indicated as an adjunct to rest, physical therapy,
and other measures for the relief of discomforts associated with
acute, painful musculoskeletal conditions.” Physician's Desk
Reference 2428 (52nd ed. 1998).
6
medical evidence, the ALJ, in stating what evidentiary weight
he gave to the submitted evidence, stated that it was
“noteworthy that Dr. Yearwood did not provide any opinions
regarding the claimant’s physical capacities and limitations
or her estimated level of pain” (Tr. 19).
The Court notes that Dr. Yearwood’s treatment notes
indicate that he prescribed Darvocet2 to go with the Ultram3
which Salter was already taking (Tr. 281). Notes further
indicate the use of Skelaxin,4 Zanaflex,5 and Robaxin6 in
Salter’s treatment (Tr. 281, 546). In the treatment note of
March 15, 2002, Yearwood noted that Plaintiff’s “intradiscal
pathology has continued unabatedly and is somewhat more severe
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 6 of 10
7
than it was when last seen” (Tr. 280). In the October 21,
2002 exam, the doctor stated the following:
[Plaintiff’s subjective complaints] are all
very characteristic for chronic neuropathic
pain. She has scatted myofascial trigger
points present and bilateral paraspinous
muscle spasticity in the cervical spine.
She does have some left lower thoracic
facet joint tenderness. Lumbar spine has
positive spring elicited at L4-L5 with
bilateral paraspinous muscle spasticity and
scattered myofascial trigger points.
Facets are not involved. Positive left
sacroiliac joint dysfunction as noted by
Gillette’s, Gaenslen’s, sacral thrust,
Thomas’, Patrick’s, and march tests.
(Tr. 546). Yearwood’s suggested treatment regimen included
physical therapy, spinal injection therapy, neuromuscular
stimulation, as well as medication therapy (Tr. 546).
The Court finds that Dr. Yearwood’s pain assessment meets
the three-prong standard of Caulder. Specifically, the Court
finds that it is new evidence, that there is a reasonable
probability that it will change the administrative result, and
that there is good cause for Plaintiff’s late submission of
the evidence.
The Court has reviewed Defendant’s arguments that the
Appeals Council properly denied review of this evidence (Doc.
14, pp. 19-20), but finds them unpersuasive. The Court is
aware that the ALJ rejected the pain form completed by Dr.
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 7 of 10
8
Barnes and found Plaintiff’s testimony non-credible (Tr. 20-
21); however, the Court again notes the ALJ’s finding that it
was “noteworthy” that Dr. Yearwood had not expressed an
opinion as to Salter’s pain and limitations (Tr. 19). The
ALJ’s characterization of the absence of Yearwood’s pain
assessment leads this Court to the conclusion that he
considered the evidence material; in any event, the Court
considers it material, especially in light of Dr. Barnes’s
similar, though stronger, assessment. Though Defendant has
argued that the pain assessment is cumulative to the other
information in the file, the ALJ’s noting that it was not a
part of the record belies this argument. Finally, there can
be no argument that Dr. Yearwood’s pain assessment was not a
part of the record at the time of the ALJ’s decision.
Based on review of the entire record, the Court finds
that the Commissioner's decision is not supported by
substantial evidence. Therefore, it is recommended that the
action be reversed and remanded to the Social Security
Administration for further administrative proceedings consistent with this opinion, to include, at a minimum, a
supplemental hearing for the gathering of evidence regarding
Plaintiff’s pain.
Furthermore, it is recommended that a final judgment be
entered ordering remand in this action pursuant to sentence
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 8 of 10
9
four of 42 U.S.C. § 405(g). See Melkonyan v. Sullivan, 501
U.S. 89 (1991). For further procedures not inconsistent with
this recommendation, see Shalala v. Schaefer, 509 U.S. 292
(1993).
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS
AND RESPONSIBILITIES FOLLOWING RECOMMENDATION
AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection. Any party who objects to this recommendation
or anything in it must, within ten days of the date of service
of this document, file specific written objections with the
clerk of court. Failure to do so will bar a de novo
determination by the district judge of anything in the
recommendation and will bar an attack, on appeal, of the
factual findings of the magistrate judge. See 28 U.S.C. §
636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.
1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,
1982)(en banc). The procedure for challenging the findings
and recommendations of the magistrate judge is set out in more
detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a
magistrate judge in a dispositive matter, that is, a
matter excepted by 28 U.S.C. § 636(b)(1)(A), by
filing a “Statement of Objection to Magistrate
Judge’s Recommendation” within ten days after being
served with a copy of the recommendation, unless a
different time is established by order. The
statement of objection shall specify those portions
of the recommendation to which objection is made and
the basis for the objection. The objecting party
shall submit to the district judge, at the time of
filing the objection, a brief setting forth the
party’s arguments that the magistrate judge’s
recommendation should be reviewed de novo and a
different disposition made. It is insufficient to
submit only a copy of the original brief submitted
to the magistrate judge, although a copy of the
original brief may be submitted or referred to and
incorporated into the brief in support of the
objection. Failure to submit a brief in support of
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 9 of 10
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the objection may be deemed an abandonment of the
objection.
A magistrate judge’s recommendation cannot be appealed to
a Court of Appeals; only the district judge’s order or
judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded).
Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the
magistrate judge finds that the tapes and original records in
this action are adequate for purposes of review. Any party
planning to object to this recommendation, but unable to pay
the fee for a transcript, is advised that a judicial
determination that transcription is necessary is required
before the United States will pay the cost of the transcript.
DONE this 1st day of December, 2005.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
Case 1:05-cv-00254-CB-M Document 18 Filed 12/02/05 Page 10 of 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_03-cr-00207/USCOURTS-azd-2_03-cr-00207-0/pdf.json | [
[
"United States of America",
"Plaintiff"
],
[
"Daniel Jay Walker",
"Defendant"
]
] | WO UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
UNITED STATES OF AMERICA
v.
Daniel Jay Walker
ORDER OF DETENTION PENDING DISPOSITION
Case Number: CR-03-00207-001-PHX-FJM
In accordance with the Bail Reform Act, 18 U.S.C. § 3142(f), a detention hearing has been held. I conclude that the following facts
are established: (Check one or both, as applicable.)
: by clear and convincing evidence the defendant is a danger to the community and require the detention of the defendant
pending disposition in this case.
: by a preponderance of the evidence the defendant is a serious flight risk and require the detention of the defendant pending
disposition in this case.
PART I -- FINDINGS OF FACT
9 (1) There is probable cause to believe that the defendant has committed
9 an offense for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. §§
801 et seq., 951 et seq, or 46 U.S.C. App. § 1901 et seq.
9 an offense under 18 U.S.C. §§ 924(c), 956(a), or 2332(b).
9 an offense listed in 18 U.S.C. § 2332b(g)(5)(B) (Federal crimes of terrorism) for which a maximum term of
imprisonment of ten years or more is prescribed.
9 an offense involving a minor victim prescribed in ____________________________________________.1
9 (2) The defendant has not rebutted the presumption established by finding 1 that no condition or combination of
conditions will reasonably assure the appearance of the defendant as required and the safety of the community.
Alternative Findings
: (1) There is a serious risk that the defendant will flee; no condition or combination of conditions will reasonably assure
the appearance of the defendant as required.
: (2) No condition or combination of conditions will reasonably assure the safety of others and the community.
9 (3) There is a serious risk that the defendant will (obstruct or attempt to obstruct justice) (threaten, injure, or intimidate
a prospective witness or juror).
9 (4)
PART II -- WRITTEN STATEMENT OF REASONS FOR DETENTION
(Check one or both, as applicable.)
9 (1) I find that the credible testimony and information submitted at the hearing establish by clear and convincing evidence
as to danger that:
1Insert as applicable: Title 18, § 1201 (kidnaping), § 1591 (sex trafficking), § 2241 (aggravated sexual abuse), § 2242 (sexual abuse), § 2245 (offenses resulting
in death), § 2251 (sexual exploitation of children), § 2251A (selling or buying of children), § 2252 et seq. (certain activities relating to material involving sexual
exploitation of minors), § 2252A et seq. (certain activities relating to material constituting or containing child pornography), § 2260 (production of sexually explicit
depictions of minors for importation into the U.S.), § 2421 (transportation for prostitution or a criminal sexual activity offense), § 2422 (coercion or enticement for a
criminal sexual activity), § 2423 (transportation of minors with intent to engage in criminal sexual activity), § 2425 (use of interstate facilities to transmit information
about a minor).
Case 2:03-cr-00207-FJM Document 32 Filed 12/21/10 Page 1 of 2
9 (2) I find by a preponderance of the evidence as to risk of flight that:
9 The defendant has no significant contacts in the District of Arizona.
9 The defendant has no resources in the United States from which he/she might make a bond reasonably calculated
to assure his/her future appearance.
9 The defendant has a prior criminal history.
9 There is a record of prior failure(s) to appear in court as ordered.
9 The defendant attempted to evade law enforcement contact by fleeing from law enforcement.
9 The defendant is facing a minimum mandatory of incarceration and a maximum of .
9 The defendant does not dispute the information contained in the Pretrial Services Report, except:
: In addition:
The defendant submitted the issue of detention. Defendant is alleged to have violated conditions of supervised release.
The Court incorporates by reference the findings of the Pretrial Services Agency which were reviewed by the Court at the
time of the hearing in this matter.
PART III -- DIRECTIONS REGARDING DETENTION
The defendant is committed to the custody of the Attorney General or his/her designated representative for confinement in
a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending
appeal. The defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court
of the United States or on request of an attorney for the Government, the person in charge of the corrections facility shall deliver the
defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.
PART IV -- APPEALS AND THIRD PARTY RELEASE
IT IS ORDERED that should an appeal of this detention order be filed with the District Court, it is counsel's responsibility to
deliver a copy of the motion for review/reconsideration to Pretrial Services at least one day prior to the hearing set before the District
Court. Pursuant to Rule 59(a), FED.R.CRIM.P., effective December 1, 2005, Defendant shall have ten (10) days from the date of
service of a copy of this order or after the oral order is stated on the record within which to file specific written objections with the
district court. Failure to timely file objections in accordance with Rule 59(a) may waive the right to review. 59(a), FED.R.CRIM.P.
IT IS FURTHER ORDERED that if a release to a third party is to be considered, it is counsel's responsibility to notify Pretrial
Services sufficiently in advance of the hearing before the District Court to allow Pretrial Services an opportunity to interview and
investigate the potential third party custodian.
Date: December 15, 2010
Page 2 of 2
Case 2:03-cr-00207-FJM Document 32 Filed 12/21/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_06-cv-02097/USCOURTS-caed-2_06-cv-02097-1/pdf.json | [
[
"Board of Prison Terms",
"Respondent"
],
[
"Baran Stewart",
"Petitioner"
]
] | 1
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BARAN STEWART, No. CIV S-06-2097-LKK-CMK-P
Petitioner,
vs. ORDER
BOARD OF PRISON TERMS,
Respondent.
/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s petition for
a writ of habeas corpus (Doc. 1), filed on September 21, 2006
The court has examined the petition as required by Rule 4 of the Federal Rules
Governing Section 2254 Cases. It does not plainly appear from the petition and any attached
exhibits that petitioner is not entitled to relief. See id. Respondent, therefore, will be directed to
file a response to petitioner’s petition. See id. If respondent answers the petition, such answer
must comply with Rule 5 of the Federal Rules Governing Section 2254 Cases. Specifically, an
answer shall be accompanied by any and all transcripts or other documents relevant to the
determination of the issue(s) presented in the petition. See id.
Case 2:06-cv-02097-LKK -CMK Document 5 Filed 09/27/06 Page 1 of 2
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Accordingly, IT IS HEREBY ORDERED that:
1. Respondent is directed to file a response to petitioner’s petition within 30
days from the date of service of this order;
2. Petitioner’s traverse or reply (if respondent files an answer to the petition),
if any, or opposition or statement of non-opposition (if respondent files a motion in response to
the petition) shall be filed and served within 30 days of service of respondent’s response; and
3. The Clerk of the Court shall serve a copy of this order, together with a
copy of petitioner’s petition for a writ of habeas corpus on Michael Patrick Farrell, Senior
Assistant Attorney General.
DATED: September 26, 2006.
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Case 2:06-cv-02097-LKK -CMK Document 5 Filed 09/27/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_15-cv-01319/USCOURTS-caed-1_15-cv-01319-1/pdf.json | [
[
"Chad Randall Bergman",
"Plaintiff"
],
[
"County of Kern",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Chad Bergman initiated this action against the County of Kern by filing a complaint on August
28, 2015, alleging employees of the County violated his civil rights by executing an unlawful arrest,
using excessive force in the course of the arrest and failing to provide medical care in violation of the
Fourth and Fourteenth Amendments to the Constitution. (Doc. 1) The Court granted the County’s
motion to dismiss, and ordered Plaintiff to file an amended complaint within thirty days of the date of
service. (Doc. 16 at 12) To date, Plaintiff has failed to comply with or otherwise respond to the
Court’s order.
The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a
party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any
and all sanctions . . . within the inherent power of the Court.” Local Rule 110. “District courts have
inherent power to control their dockets,” and in exercising that power, a court may impose sanctions
including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831
CHAD RANDALL BERGMAN,
Plaintiff,
v.
COUNTY OF KERN,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No.: 1:15-cv-01319 - TLN - JLT
ORDER TO PLAINTIFF TO SHOW CAUSE WHY
THE ACTION SHOULD NOT BE DISMISSED
FOR HIS FAILURE TO PROSECUTE AND
FAILURE TO COMPLY WITH THE COURT’S
ORDER
Case 1:15-cv-01319-TLN-JLT Document 17 Filed 12/09/15 Page 1 of 2
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(9th Cir. 1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute
an action or failure to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)
(dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th
Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).
Accordingly, Plaintiff is ORDERED to show cause within 14 days of the date of service of
this Order why the action should not be dismissed for his failure to prosecute and failure comply with
the Court’s order or, in the alternative, to file an amended complaint.
IT IS SO ORDERED.
Dated: December 9, 2015 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
Case 1:15-cv-01319-TLN-JLT Document 17 Filed 12/09/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-05-07884/USCOURTS-ca4-05-07884-0/pdf.json | [
[
"Sharita LaShawn Pankey",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7884
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHARITA LASHAWN PANKEY,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 06-7975)
Submitted: March 5, 2008 Decided: March 17, 2008
Before WILLIAMS, Chief Judge, and TRAXLER and SHEDD, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Miller A. Bushong, III, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 05-7884 Doc: 34 Filed: 03/17/2008 Pg: 1 of 3
- 2 -
PER CURIAM:
Sharita LaShawn Pankey pled guilty to one count of
distribution of cocaine base, in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999 & Supp. 2007). At sentencing, Pankey argued
that she was eligible for a sentence below the Sentencing
Guidelines because the 100-to-1 crack cocaine to powder cocaine
sentencing disparity was not applicable to her situation. The
district court believed it was constrained to defer to the
guidelines and sentenced Pankey to the low end of the properly
calculated guidelines range of imprisonment. On appeal, we
affirmed her sentence, noting her challenge to the sentencing
disparity was foreclosed by United States v. Eura, 440 F.3d 625
(4th Cir. 2006) (holding that 100:1 ratio could not be used as
basis for variance), vacated, 128 S. Ct. 853 (2008). See United
States v. Pankey, No. 05-7884, 2006 WL 2457166 (4th Cir. Aug. 22,
2006) (unpublished). On January 7, 2008, the Supreme Court granted
Pankey’s petition for writ of certiorari, vacated this court’s
judgment and remanded the case for further consideration in light
of Kimbrough v. United States, 128 S. Ct. 558 (2007). Pankey v.
United States, 128 S. Ct. 856 (2008).
The Supreme Court decided in Kimbrough that “it would not
be an abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder disparity
yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s
Appeal: 05-7884 Doc: 34 Filed: 03/17/2008 Pg: 2 of 3
- 3 -
purposes, even in a mine-run case.” Kimbrough, 128 S. Ct. at 575.
Kimbrough thus abrogated Eura. Because Kimbrough relieves the
court of being constrained by the guidelines when considering the
crack/powder disparity, we vacate the sentence and remand for
resentencing.
Thus, we vacate Pankey’s sentence and remand to the
district court for resentencing in light of Kimbrough. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
Appeal: 05-7884 Doc: 34 Filed: 03/17/2008 Pg: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_15-cv-01078/USCOURTS-caed-1_15-cv-01078-4/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Christine McKinley",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
On August 3, 2016, the parties filed a stipulation for a thirty-day extension of time for
Defendant to file a response to Plaintiff’s opening brief. (Doc. 21) Notably, the Scheduling Order
permits only a single extension by the stipulation of parties (Doc. 8 at 4), which was used by Plaintiff
in seeking an extension to file the opening brief (Doc. 16). In addition, Plaintiff sought a second
extension of time to file the opening brief. (Docs. 18-29) Thus, this is the third extension sought by
the parties in this action.
Notably, beyond the first extension, “requests to modify [the schedule] must be made by
written motion and will only be granted for good cause.” (Doc. 8 at 4) Moreover, as explained by the
Ninth Circuit, a scheduling order “is not a frivolous piece of paper, idly entered, which can be
cavalierly disregarded without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th
Cir. 1992). The deadlines are considered “firm, real and are to be taken seriously by parties and their
counsel.” Shore v. Brown, 74 Fed. R. Serv. 3d (Callaghan) 1260, 2009 U.S. Dist. LEXIS 94828 at *7
CHRISTINE MCKINLEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No.: 1:15-cv-01078- JLT
ORDER GRANTING DEFENDANTS’ REQUEST
FOR AN EXTENSION OF TIME
(Doc. 21)
Case 1:15-cv-01078-JLT Document 22 Filed 08/05/16 Page 1 of 2
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(E.D. Cal. Oct. 9, 2009).
Here, Defendant’s counsel Jeffrey Chen asserts the additional time is necessary “because of a
very heavy workload, including an upcoming Ninth Circuit brief, and because of a planned vacation in
August.” (Doc. 21 at 1) Presumably, when Mr. Chen agreed to the extensions previously requested
by Plaintiff, he knew both of his pending vacation and his workload. The failure to plan accordingly is
not condoned by the Court. Nevertheless, Plaintiff does not oppose the request for an extension of
time. (See Doc. 21 at 2) Accordingly, IT IS HEREBY ORDERED:
1. Defendant’s request for an extension of time is GRANTED;
2. Defendant SHALL file a responsive brief no later than August 26, 2016; and
3. The parties are advised that no further extensions of time will be approved with a
showing of exceptionally good cause.
IT IS SO ORDERED.
Dated: August 4, 2016 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
Case 1:15-cv-01078-JLT Document 22 Filed 08/05/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-14-20436/USCOURTS-ca5-14-20436-0/pdf.json | [
[
"Alfred Henderson",
"Appellant"
],
[
"William Stephens, Director, Texas Department of Criminal Justice, Correctional Institutions Division",
"Appellee"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20436
ALFRED HENDERSON,
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-3254
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
Alfred Henderson, Texas prisoner # 714885, moves for a certificate of
appealability (COA) to appeal the dismissal without prejudice for failure to
exhaust state court remedies of his 28 U.S.C. § 2254 application challenging
his conviction for robbery – bodily injury. He also moves for leave to
supplement his COA motion. Henderson argues that he should be excused
from the exhaustion requirement of § 2254(b)(1)(A). He notes that his state
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 23, 2015
Lyle W. Cayce
Clerk
Case: 14-20436 Document: 00512978766 Page: 1 Date Filed: 03/23/2015
No. 14-20436
habeas application has been pending since December 2012, and the state
courts have yet to resolve the application.
In order to obtain a COA, Henderson must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484 (2000). An applicant must demonstrate that
reasonable jurists would find it debatable whether the § 2254 application
states a valid claim of the denial of a constitutional right and whether the
district court was correct in its procedural ruling. Slack, 529 U.S. at 484.
Exhaustion may be excused in exceptional circumstances, including
“when the state system inordinately and unjustifiably delays review of a
petitioner’s claims so as to impinge upon his due process rights” and when it
would be futile to seek state remedies. Deters v. Collins, 985 F.2d 789, 795-96
(5th Cir. 1993). Failure to exhaust under these circumstances, however, will
only be excused if the delay is “wholly and completely the fault of the state.”
Id. at 796. In determining whether the delay is violative of due process, the
following factors are examined: (1) the length of the delay; (2) the reasons for
the delay; (3) the petitioner’s assertion of his right; and (4) the prejudice to the
petitioner on account of the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972).
Henderson’s state habeas application has been pending for more than
two years, which exceeds the range we have previously considered excessive.
See, e.g., Shelton v. Heard, 696 F.2d 1127, 1128-29 (5th Cir. 1983); Breazeale
v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978). The record contains no explanation
for the delay and no information regarding the progress of the proceedings. In
light of the lack of evidence regarding the current state of Henderson’s state
habeas proceedings and the lack of findings regarding whether the reason for
the delay was justifiable, the district court’s procedural determination is
debatable. See Slack, 529 U.S. at 484. Additionally, “the district court
2
Case: 14-20436 Document: 00512978766 Page: 2 Date Filed: 03/23/2015
No. 14-20436
pleadings, the record, and the COA application demonstrate that reasonable
jurists could debate whether [Henderson] has made a valid claim of a
constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.
2004).
Henderson’s motion to supplement his COA application is GRANTED.
His motion for a COA is GRANTED, the district court’s judgment dismissing
the motion as untimely is VACATED, and the matter is REMANDED for
further factual development regarding whether the delay in considering his
state habeas application is justifiable and the current status of the
proceedings. See id.; Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
If the delay is not justifiable and the matter has not progressed in the state
courts, the district court shall proceed to consider the merits of the federal
habeas application.
3
Case: 14-20436 Document: 00512978766 Page: 3 Date Filed: 03/23/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-16-10292/USCOURTS-ca5-16-10292-0/pdf.json | [
[
"Bank of America",
"Appellee"
],
[
"Sabeena Mishra",
"Appellant"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10292
Summary Calendar
SABEENA MISHRA,
Plaintiff - Appellant
v.
BANK OF AMERICA,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-1521
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
This employment discrimination appeal follows cross-motions for
summary judgment in which Sabeena Mishra’s motion was denied, while Bank
of America’s motion was granted. The district court also denied Mishra’s
motions to strike and for additional discovery, and dismissed her claims with
prejudice.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 25, 2016
Lyle W. Cayce
Clerk
Case: 16-10292 Document: 00513652105 Page: 1 Date Filed: 08/25/2016
No. 16-10292
2
This Court has considered this appeal on the basis of the briefs and
pertinent portions of the record. Having done so, the judgment is affirmed,
essentially for the reasons stated in the magistrate judge’s report and
recommendation, adopted by the district court.
AFFIRMED.
Case: 16-10292 Document: 00513652105 Page: 2 Date Filed: 08/25/2016 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-89-07025/USCOURTS-ca10-89-07025-0/pdf.json | [
[
"Louis W. Sullivan",
"Appellee"
],
[
"Brenda A. Willet",
"Appellant"
]
] | ,.
P 1 LED
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Uoire!d Scares <:Durr of Appeals
Tenth Circuit
~f )I_ .i. 1 1990
!tOBERT L. HOECKER
Clerk BRENDA A. WILLET,
Plaintiff-Appellant,
v .
LOUIS W. SULLIVAN, M.D., Secretary of
Health and Human Services,
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
)
ORDER AND JUDGMENT*
No. 89-7025
(D.C. No. 88-293-C)
(E.D. Okla.)
Before ANDERSON, BARRETT, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not materially
assist the determination of this appeal. See Fed. R. App. P.
34(a); 10th Cir. R. 34.1.9.
submitted without oral argument.
The case is therefore ordered
Plaintiff appeals the district court's affirmance of the
Secretary's decision denying plaintiff supplemental security
* This order and judgment has no precedential value and shall
not be cited, or used by any court within the Tenth Circuit,
except for purposes of establishing the doctrines of the law of
the case, res judicata, or collateral estoppel. 10th Cir. R.
36.3.
Appellate Case: 89-7025 Document: 010110038275 Date Filed: 07/11/1990 Page: 1
•'
income benefits. Plaintiff applied for benefits in June, 1987,
asserting she was disabled due to back and kidney problems. 1
After a hearing, the Administrative Law Judge (A.L.J.) determined
that plaintiff's back problem, diagnosed as lumbosacral syndrome,
did not impair her ability to perform her past work as a laundry
operator. 2 Further, the A.L.J. determined that, while plaintiff
"doubtlessly experienced some discomfort," her pain was not
disabling. The A.L.J., therefore, determined plaintiff was not
disabled and denied benefits.
Plaintiff requested the Appeals Council review the A.L.J. 's
decision. Along with t-Ois request, plaintiff submitted additional
evidence from plaintiff's treating physician. The Appeals Council
denied the request for review, determining that even in light of
the treating physician's evaluation, plaintiff retained the
residual functional capacity for light or sedentary work and,
therefore, was not disabled. Because the Appeals Council denied
plaintiff's request for review, the A.L.J.'s decision became the
final decision of the Secretary.
1 Although plaintiff claimed she was disabled due to both back
and kidney problems, plaintiff failed to assert any evidence
concerning a kidney impairment.
2 The A.L.J. found that plaintiff retained the functional
capacity to perform her past work as a laundry operator, a job
plaintiff held from 1964-75. Contrary to plaintiff's assertions
on appeal, the A.L.J. did not determine plaintiff remained capable
of performing her previous work as a nursing home attendant, a job
plaintiff held from 1985-87, which included some laundry work, but
which also required greater overall strength than plaintiff's job
as a laundry operator.
2
Appellate Case: 89-7025 Document: 010110038275 Date Filed: 07/11/1990 Page: 2
Plaintiff commenced this action in federal court, challenging
the Secretary's denial of benefits. The district court upheld the
Secretary's determination. Plaintiff appeals, asserting the
Secretary's decision was not supported by substantial evidence and
the Secretary failed to apply correct legal standards.
The Secretary's determination will be upheld if it is
supported by substantial evidence, which is defined as such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. See,~, Frey v. Bowen, 816 F.2d 508, 512
(10th Cir. 1987). Failure to apply correct legal standards, as
well as lack of substantial evidence supporting the Secretary's
determination, will be grounds for reversal. See id.
In determining that plaintiff retained the functional
capacity to perform her past work as a laundry operator, the
A.L.J. relied on the reports of three consulting physicians. The
treating physician's evaluation, however, contradicted the
opinions of the consulting physicians and indicated plaintiff was
not capable of performing the exertional requirements of her prior
work activity. The opinion of a treating physician must be
accorded greater weight than the consulting physicians, unless the
Secretary asserts specific, legitimate reasons to disregard the
treating physician's opinion. See Reyes v. Bowen, 845 F.2d 242,
245 (10th Cir. 1988); Frey, 816 F.2d at 513.
The Appeals Council, in denying plaintiff's request to review
the A.L.J.'s determination, considered the treating physician's
opinion, see 20 C.F.R. § 416.1470(b), ruling that even if
plaintiff's residual functional capacity limited her to light or
3
Appellate Case: 89-7025 Document: 010110038275 Date Filed: 07/11/1990 Page: 3
,.
sedentary work, as indicated by the treating physician's
evaluation, "a denial would still be directed by the Medical
Vocational Guidelines." The treating physician's evaluation
further indicated, however, that, in addition to her exertional
limitations, plaintiff's residual functional capacity was
"severely" limited by headaches and back pain. Because the
medical-vocational guidelines measure only exertional limitations,
t he guidelines may not be applied mechanically where a claimant
suffers nonexertional impairments, such as pain, which further
limit her ability to perform work activities. See,~' Gossett
v. Bowen, 862 F.2d 802, 806 (10th Cir. 1988); Frey, 816 F.2d at
512-13.
The A.L.J. had determined that plaintiff's complaints of
disabling pain were not credible and, therefore, implicitly
determined that plaintiff's pain did not further impair
plaintiff's residual functional capacity. While ordinarily a
reviewing court defers to an A.L.J . 's credibility determinations
concerning a claimant's subjective complaints of pain, see, ~'
Gossett, 862 F.2d at 807, the A.L.J. in this case did not consider
the treating physician's evaluation when the A.L.J. made this
credibility determination.
have a reasonable nexus to
In evaluating complaints of pain which
an objectively established medical
condition, the A.L.J. must evaluate ~laintiff's complaints of pain
in light of all relevant evidence. See Luna v. Bowen, 834 F.2d
161, 163, 165-66 (10th Cir. 1987); see also Huston v. Bowen, 838
F.2d 1125, 1130 (10th Cir. 1988)(the A.L.J. must consider a
treating physician's assessment of a claimant's subjective
4
Appellate Case: 89-7025 Document: 010110038275 Date Filed: 07/11/1990 Page: 4
complaints of pain); Gatson v. Bowen, 838 F.2d 442, 447-48 (10th
Cir. 1988)(objective medical evidence of disabling pain can
include the treating physician's clinical assessment of the
credibility of a claimant's complaints of pain). Because the
A.L.J. did not have the benefit of the treating physician's
evaluation when he made his determination concerning the
credibility of plaintiff's complaints of disabling' pain, the
district court's decision affirming the Secretary's denial of
benefits is reversed, and the case is remanded for the Secretary's
consideration of plaintiff's subjective complaints of pain in
light of the treating physician's evaluation. If the complaints
of disabling pain are found to be credible, mechanical application
of the medical-vocational guidelines, which the Appeals Council
appears to have invoked in denying plaintiff's request for review,
would be inappropriate. See Huston, 838 F.2d at 1131.
On appeal, plaintiff also argues that the Secretary's
determination that plaintiff was literate was not supported by
substantial evidence. Although the Secretary's literacy finding
was not relevant to the Secretary's determination that plaintiff
remained capable of performing her past work as a laundry
operator, it may become relevant on remand. In reviewing the
Secretary's findings, an appellate court may not reweigh the
evidence or substitute its judgment for the judgment of the
agency. See Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988).
The Secretary's determination may be reversed, however, where
there is a mere scintilla of evidence supporting the determination
5
Appellate Case: 89-7025 Document: 010110038275 Date Filed: 07/11/1990 Page: 5
or the evidence supporting the determination is overwhelmed by
other evidence in the record. See id.
The A.L.J. 's determination that plaintiff was literate
appears to have been based upon the notation of an agency
interviewer that he observed no difficulties with plaintiff's
ability to read or write. At the hearing, however, plaintiff
testified that, although she had completed the seventh grade, she
could neither read nor write. This testimony was supported by
three letters written by plaintiff's friends, relatives, and
neighbors. Because the Secretary's determination that plaintiff
was literate was overwhelmed by evidence to the contrary, the
Secretary's determination that plaintiff was literate was not
supported by substantial evidence and, therefore, is reversed.
See id.
Plaintiff also asserts that the A.L.J. failed to fulfill his
duty to develop the record concerning both plaintiff's prior work
experience and possible psychological factors complicating
plaintiff's physical condition. While an A.L.J. has a duty "'to
inform himself about facts relevant to his decision and to learn
the claimant's own version of those facts,'" Dixon v. Heckler, 811
F . 2d 506, 510 (10th Cir. 1987)(quoting Heckler v. Campbell, 461
U.S. 458, 471 and n.l (1983)(Brennan, J., concurring)), a claimant
is responsible for raising any matter upon which the claimant is
relying for an award of benefits, see Garcia v. Califano, 625 F.2d
354, 356 (10th Cir. 1980). While an A.L.J. 's duty to develop the
record is heightened when a claimant is proceeding pro se, see
Dixon, 811 F.2d at 510, in the instant case, plaintiff was
6
Appellate Case: 89-7025 Document: 010110038275 Date Filed: 07/11/1990 Page: 6
•
represented by counsel at the hearing before the A.L.J. Upon
careful review of the record, we determine the A.L.J. did not
violate his duty to develop the record.
The judgment of the United States District Court for the
Eastern District of Oklahoma affirming the Secretary's denial of
benefits is REVERSED, and the cause is REMANDED to the district
court with directions to remand to the Secretary for consideration
of plaintiff's complaints of disabling pain in light of the
treating physician's evaluation.
ENTERED FOR THE COURT
PER CURIAM
7
Appellate Case: 89-7025 Document: 010110038275 Date Filed: 07/11/1990 Page: 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-15-02893/USCOURTS-ca8-15-02893-0/pdf.json | [
[
"Bayer AG",
"Appellee"
],
[
"Bayer BioScience NV",
"Appellee"
],
[
"Bayer Corporation",
"Appellee"
],
[
"Bayer CropScience AG",
"Appellee"
],
[
"Bayer CropScience Holding",
"Appellee"
],
[
"Bayer CropScience Inc.",
"Appellee"
],
[
"Bayer CropScience LLC",
"Appellee"
],
[
"Bayer CropScience LP",
"Appellee"
],
[
"Genetically Modified Rice Litigation",
"Not Party"
],
[
"Riceland Foods",
"Appellant"
]
] | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2690
___________________________
In re: Genetically Modified Rice Litigation
------------------------------
Riceland Foods, Inc.,
lllllllllllllllllllll Plaintiff - Appellee,
Don M. Downing and Adam J. Levitt, Plaintiffs’ Co-Lead Counsel and
Co-Trustees of the Genetically Modified Rice Common Benefit Fund,
lllllllllllllllllllllMovant - Appellee,
v.
Bayer Cropscience US; Bayer CropScience LP; Bayer AG; Bayer CropScience
Holding, Inc.; Bayer Corporation; Bayer BioScience NV; Bayer CropScience AG;
Bayer CropScience Inc.; Bayer CropScience LLC; Bayer CropScience Holding SA,
lllllllllllllllllllll Defendants - Appellants.
___________________________
No. 15-2693
___________________________
In re: Genetically Modified Rice Litigation
------------------------------
Appellate Case: 15-2893 Page: 1 Date Filed: 08/31/2016 Entry ID: 4443269
Riceland Foods, Inc.,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Bayer Cropscience US; Bayer CropScience LP; Bayer AG; Bayer CropScience
Holding, Inc.; Bayer Corporation; Bayer BioScience NV; Bayer CropScience AG;
Bayer CropScience Inc.; Bayer CropScience LLC; Bayer CropScience Holding SA,
lllllllllllllllllllll Defendants,
Don M. Downing and Adam J. Levitt, Plaintiffs’ Co-Lead Counsel and
Co-Trustees of the Genetically Modified Rice Common Benefit Fund
llllllllllllllllllllllMovant - Appellee.
___________________________
No. 15-2850
___________________________
In re: Genetically Modified Rice Litigation
------------------------------
Riceland Foods, Inc.,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Bayer AG; Bayer CropScience AG; Bayer BioScience NV; Bayer CropScience
LP; Bayer CropScience LLC; Bayer CropScience Holding, Inc.; Bayer
CropScience Inc.; Bayer Corporation,
lllllllllllllllllllll Defendants - Appellants.
-2-
Appellate Case: 15-2893 Page: 2 Date Filed: 08/31/2016 Entry ID: 4443269
___________________________
No. 15-2893
___________________________
In re: Genetically Modified Rice Litigation
------------------------------
Riceland Foods, Inc.,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Bayer AG; Bayer CropScience AG; Bayer BioScience NV; Bayer CropScience
LP; Bayer CropScience LLC; Bayer CropScience Holding, Inc.; Bayer
CropScience Inc.; Bayer Corporation,
lllllllllllllllllllll Defendants - Appellees.
___________________________
No. 15-3245
___________________________
In re: Genetically Modified Rice Litigation
------------------------------
Riceland Foods, Inc.,
lllllllllllllllllllll Plaintiff - Appellee,
Don M. Downing and Adam J. Levitt, Plaintiffs’ Co-Lead Counsel and
Co-Trustees of the Genetically Modified Rice Common Benefit Fund,
lllllllllllllllllllllMovant - Appellant,
v.
-3-
Appellate Case: 15-2893 Page: 3 Date Filed: 08/31/2016 Entry ID: 4443269
Bayer Cropscience US; Bayer CropScience LP; Bayer AG; Bayer CropScience
Holding, Inc.; Bayer Corporation; Bayer BioScience NV; Bayer CropScience AG;
Bayer CropScience Inc.; Bayer CropScience LLC; Bayer CropScience Holding SA,
lllllllllllllllllllll Defendants - Appellees.
____________
Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: April 12, 2016
Filed: August 31, 2016
____________
Before COLLOTON and SHEPHERD, CircuitJudges, and BOUGH, DistrictJudge. 1
____________
COLLOTON, Circuit Judge.
Bayer AG, along with several of its corporate subsidiaries, and Riceland, Inc.,
appeal an order of the district court requiring Bayer to cause the deposit of a portion 2
of a settlement between Bayer and Riceland into a common-benefit trust fund. This
fund was established to compensate attorneys leading the multidistrict litigation
(“MDL”) concerning Bayer’s LibertyLink LL601 genetically modified rice. We
addressed challenges to the creation of the fund in In re Genetically Modified Rice
Litigation (Rice I), 764 F.3d 864, 870-71, 873-74 (8th Cir. 2014).
The Honorable Stephen R. Bough, United States District Judge for the
1
Western District of Missouri, sitting by designation.
The HonorableCatherine D. Perry, UnitedStatesDistrict Judge for the Eastern 2
District of Missouri.
-4-
Appellate Case: 15-2893 Page: 4 Date Filed: 08/31/2016 Entry ID: 4443269
Bayer and Riceland argue that because their settlement was the product of
negotiations following a state-court judgment, the district court lacked jurisdiction
to order Bayer to cause a percentage of the settlement to be deposited into the fund.
As the district court explained, however, Bayer and Riceland were parties to several
federal cases in the consolidated federal litigation, and their settlement resolved the
very claims asserted by Riceland in those federal cases. We conclude that the district
court properly orderedBayer to hold back a portion ofthe Bayer-Riceland settlement,
and we therefore affirm the judgment.
I.
In 2006, Bayer reported to federal regulators that trace amounts of its
experimental LL601 genetically modified rice, which was not approved for human
consumption, had contaminated the commercial long-grain rice supply in the United
States. In response to this disclosure, severalmajorimporters of U.S. rice—including
Japan, the European Union, and Mexico—banned the import of U.S. long-grain rice
orimposed stringent testing requirements. Rice commodity prices and export volume
dropped precipitously following the disclosure. Although LL601 was retroactively
approved for human consumption, the contamination caused significant economic
loss to the domestic rice industry.
In hundreds ofindividual lawsuits, approximately seven thousand rice growers
(“producers”) and others in the rice industry (“non-producers”) sued Bayer and
related entities for losses suffered as a result of the LL601 contamination.
Approximately three hundred of those lawsuits, comprising the individual claims of
approximately five thousand plaintiffs, were filed in or removed to federal court; the
remaining plaintiffs proceeded in state court. The Judicial Panel on Multidistrict
Litigation, pursuant to 28 U.S.C. § 1407, transferred the federal cases to the United
States District Court for the Eastern District of Missouri for pretrial proceedings. In
re LLRice 601 Contamination Litig., 466 F. Supp. 2d 1351 (J.P.M.L. 2006).
-5-
Appellate Case: 15-2893 Page: 5 Date Filed: 08/31/2016 Entry ID: 4443269
In April 2007, the district court appointed a leadership group of plaintiffs’
attorneys to coordinate the centralized multidistrict proceedings. Don Downing and
Adam Levitt, appellees and cross-appellants here, were named co-lead counsel for
this coordinated effort. Over the course of the litigation, the leadership group took
over one hundred depositions, managed extensive discovery, and conducted several
bellwether trials; evidence generated from each of these efforts was made available
to all plaintiffs in state and federal court. In addition, the leadership group prevailed
on several motions for summary judgment. A special master determined that the
leadership group and other lawyers engaged by the leadership group invested over
100,000 hours for the common benefit of all plaintiffs.
To compensate lawyers who would contribute to this collective effort, the
district court ordered the creation of a common-benefit trust fund (“Common Benefit
Order”). This order required Bayer to hold back and deposit into the fund a
percentage of all recoveries in the federal litigation: eleven percent of recoveries by
producer plaintiffs, ten percent of recoveries by non-producer plaintiffs, and nine
percent of recoveries by European non-producer plaintiffs. The district court
“reluctantly” determined that it lacked jurisdiction to apply the Common Benefit
Order to “settlements and judgments related to cases pending in state courts,” even
though the state-court plaintiffs would be “unjustly enriched,” because plaintiffs in
those cases were not parties before the district court. As a result, the court limited the
scope ofits order to gross recoveries “related to each federal genetically modified rice
case.” In Rice I, we affirmed the district court’s conclusion that it lacked jurisdiction
over state-court plaintiffs, holding that an MDL judge “does not have the power to
order parties in cases not before it to contribute to the Fund.” 764 F.3d at 874.
Riceland, an Arkansas rice-milling and wholesaling cooperative, was named
as a defendant in over two hundred LL601-related lawsuits; in many cases, Riceland
was a co-defendant with Bayer. But, in the words of Riceland’s attorney, the
company “quickly pivoted and was immediately at the forefront of . . . the LLRICE
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litigation as a plaintiff against Bayer.” Riceland filed a complaint and multiple crossclaims and third-party complaints against Bayer, claiming that Bayer was negligent
in failing to prevent its experimental rice fromcontaminating the U.S. long-grain rice
supply. Riceland asserted claims against Bayer in at least seven cases that were part
of the consolidated multidistrict proceedings.
Two cases in which Riceland asserted claims against Bayer are relevant to this
appeal. In Meins v. Bayer AG, No. CV-2008-108 (Ark. Cir. Ct. Arkansas Cty. filed
Aug. 7, 2008), rice farmers and rice-farming entities sued Bayer and Riceland over
the LL601 contamination. Riceland filed a cross-claim against Bayer in Meins; on
the same day, Riceland filed an identical, original complaint against Bayer in federal
court. Riceland Foods, Inc. v. Bayer AG, No. 3:09-cv-00008-BSM (E.D. Ark. filed
Jan. 20, 2009), transferred, No. 4:09-cv-00433-CDP (E.D. Mo. dismissed Aug. 3,
2015).
The plaintiffs in Meins settled their claims against Bayer, leaving only
Riceland’s cross-claims for trial. A jury entered a verdict in favor of Riceland and
awarded the company $11.83 million in compensatory damages and $125 million in
punitive damages. The trial court, applying Arkansas’s statutory cap on punitive
damages, reduced the punitive damages award to $1,073,292.
Riceland appealed the remittitur in Meins. After Riceland filed its notice of
appeal, the Arkansas Supreme Court held in a separate LL601 case that the limit on
punitive damages violated the state constitution. Bayer CropScience LP v. Schafer,
385 S.W.3d 822, 829-32 (Ark. 2011). In its opening brief to the state supreme court,
Riceland argued that Schafer required the court to reinstate the full punitive damage
award; Bayer cross-appealed, arguing that the jury’s finding that Riceland was thirty
percent at fault barred the company from recovering damages. On the punitive
damages issue, Bayer conceded that Schafer applied, but argued that if the verdict
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stood, then remand was appropriate to determine whether the $125 million award
violated the state or federal constitution.
After briefing was complete in the Meins appeal, Riceland and Bayer agreed
to settle Riceland’s claims. Under the settlement agreement, Bayer agreed to pay
Riceland $92 million and to indemnify Riceland against any claims arising out of the
LL601 litigation. In exchange, Riceland released “any and all claims . . . growing or
arising out of the presence in the United States rice supply of Bayer GM Rice.” The
release clause stated: “This specifically includes, but is not limited to, the claims
brought in the Scott Meins, et al. v. Bayer AG, et al. case.” The settlement also
requiredRiceland to dismiss with prejudice its claimin Meins, but did not specifically
mention Riceland’s pending federal lawsuit. Neither Bayer nor Riceland moved to
dismiss Riceland’s federal complaint. Bayer represents to the court that it has paid
the $92 million due to Riceland under the settlement.
The plaintiffs’ leadership group attempted, on three separate occasions, to
require Riceland to contribute to the common-benefit fund. On the eve of the Meins
trial, the leadership lawyers moved in the district court for an order applying the
Common Benefit Order to any recovery Riceland obtained in the state-court trial.
The district court denied the motion, again concluding that although Riceland
received a substantial benefit from the leadership group’s work, the court lacked
jurisdiction over the state-court case. The leadership group also moved to intervene
in Meins to have the state trial court determine whether Riceland should be required
to abide by the Common Benefit Order; the motion to intervene was denied.
After Bayer and Riceland reached their settlement, the leadership group moved
to apply the Common Benefit Order to Riceland’s recovery under the settlement.
Because Riceland was a non-producer plaintiff and a party in the coordinated federal
proceedings, the leadership group argued that Riceland was bound by the Common
Benefit Order to contribute ten percent of the settlement to the common-benefit fund.
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The district court agreed, concluding that the agreement’s release of “any and all
claims”—including those asserted in Riceland’s federal lawsuit—gave the court
jurisdiction to order funds to be held back from the settlement. The court thus
ordered Bayer to “cause to be deposited” $9.2 million into the common-benefit fund.
The court entered a separate order dismissing Riceland’s federal lawsuit based on its
finding that the settlement resolved the parties’ dispute. Bayer and Riceland appeal
the application of the Common Benefit Order to the settlement.
Two other actions involving the subject matter of this appeal are currently
pending. In Downing v. Riceland Foods, Inc., No. 4:13-cv-00321-CDP (E.D. Mo.
filed Feb. 20, 2013), the leadership group has sued Riceland for unjust enrichment
and quantum meruit based on the services rendered by the leadership group. The
district court stayed the suit pending resolution of this appeal. Riceland has also sued
Bayer in Arkansas state court, seeking a declaratory judgment that the settlement
agreement assigned to Bayer the cost of contributing to the common-benefit fund.
Riceland Foods, Inc. v. Bayer CropScience LP, No. CV-2015-072 ND (Ark. Cir. Ct.
Arkansas Cty. filed June 30, 2015).3
II.
This issues presented on appeal can be distilled into three principal questions.
First, Bayer and Riceland both argue that the order requiring Bayer to hold back a
portion of the settlement should be vacated because the district court lacked
jurisdiction to apply the Common Benefit Order to their settlement. Downing and
Levitt, on behalf of the plaintiffs’ leadership group, maintain that the district court
properly exercised jurisdiction over these parties. Next, even if the district court had
Bayer’s motion for the court to take judicial notice of the state declaratory3
judgment action is granted. See Fed. R. Evid. 201(b)(2), (d); Great Plains Tr. Co. v.
Union Pac. R.R. Co., 492 F.3d 986, 996 (8th Cir. 2007). Bayer’s motion to strike
Parts I and II of the plaintiffs’ leadership group’s reply brief is denied.
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jurisdiction to order an allocation of funds from the settlement, Bayer and Riceland
argue that the amount ordered here was too large. Finally, if the court properly
required a payment, the parties dispute whether Bayer or Riceland should be required
to deposit money into the common-benefit fund. Bayer and Riceland each argue that
the other should be required to pay. The leadership group contends that the district
court’s order was correct as entered, but argues alternatively that Riceland should be
required to pay if Bayer is not.
A.
Bayer and Riceland argue that the district court lacked jurisdiction to order a
contribution to the common-benefit fund. They contend that the order conflicts with
this court’s decision in Rice I.
In Rice I, the plaintiffs’ leadership group appealed the district court’s
conclusion that it lacked jurisdiction to apply the Common Benefit Order to plaintiffs
who recovered damages from Bayer in state court. 764 F.3d at 873-74. State-courtonly plaintiffs, the leadership group argued, benefited fromthe common-benefit work
and would be unjustly enriched unless the Common Benefit Order was applied to
them as well. Id. at 874. While recognizing the potential inequities involved, we
agreed with the district court that it lacked jurisdiction over plaintiffs that were not
in federal court. Id.; accord In re Showa Denko K.K. L-Tryptophan Prods. Liab.
Litig.-II, 953 F.2d 162, 165-66 (4th Cir. 1992); Hartland v. Alaska Airlines, 544 F.2d
992, 994, 996, 1001-02 (9th Cir. 1976). Bayer and Riceland now argue that Rice I
precluded the district court fromordering an allocation fromtheir settlement, because
the settlement was the product of negotiations during the appeal of a state-court
judgment.
Rice I does not control this case, because Riceland and Bayer were parties to
multiple federal lawsuits before the district court at the time ofsettlement. Unlike the
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state-court-only plaintiffs in Rice I, Riceland pursued its claims against Bayer in both
state and federal court. Applying the Common Benefit Order to the state-court-only
plaintiffs in Rice I would have required the federal court to exercise authority over
parties that never appeared in federal court. Riceland, by contrast, “voluntarily
entered the litigation” and sought a federal forum by filing a federal complaint and
asserting third-party claims in the consolidated federal proceedings. Showa Denko,
953 F.2d at 166. The district court therefore had jurisdiction to enter any orders
regarding Riceland that are consistent with the authority of a transferee court in
centralized multidistrict litigation.
No party challenges the propriety of the Common Benefit Order or the “well
established” authority of a district court to compensate leadership lawyers by ordering
funds to be set aside from recoveries obtained by other plaintiffs in multidistrict
litigation. Walitalo v. Iacocca, 968 F.2d 741, 747 (8th Cir. 1992). The Common
Benefit Order required Bayer to hold back amounts “related to each federal
genetically modified rice case.” The Bayer-Riceland settlement released “any and all
claims” of Riceland against Bayer, including Riceland’s claims in the federal cases.
As a payment in consideration for resolving all of Riceland’s claims, including those
in federal cases, the settlement amount thus “related to” a federal geneticallymodified
rice case within the meaning of the order.
Bayer and Riceland attempt to narrow the scope of the settlement to exclude
the claims asserted inRiceland’s federal complaint and cross-claims. Riceland argues
that the settlement’s release clause “expressly—and only—applies to Meins.” This
argument is belied by the plain language of the settlement agreement, which states
that the release “includes, but is not limited to,” the claims asserted in Meins. The
agreement expressly disclaims that it applies only to Meins.
Bayer advances the more nuanced argument that even if the terms of the
agreement could be interpreted as relating to the federal case, the parties clearly
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intended to exclude the “worthless” federal lawsuit. Bayer contends that in light of
the jury verdict in Meins, it could have secured dismissal of Riceland’s federal
lawsuit under the doctrine of claim preclusion. See Crockett & Brown, P.A. v.
Wilson, 864 S.W.2d 244, 246 (Ark. 1993) (holding that a judgment has preclusive
effect even while on appeal). Bayer argues that it would be illogical to interpret the
agreement as settling a case with de minimis settlement value.
That Bayer might have resolved or defeated Riceland’s federal claims in a
different way, however, does not alter the plain terms of the settlement agreement.
Bayer and Riceland opted for a release that “includes, but is not limited to” Meins and
extends to “any and all claims.” “The term ‘any and all’ . . . is all-encompassing” and
includes Riceland’s federal claims against Bayer. See Sander v. Alexander
Richardson Invs., 334 F.3d 712, 716 (8th Cir. 2003).
Bayer might have eschewed such broad language and instead relied on the
doctrine of claim preclusion to defeat other claims—federal and state—arising from
the presence of Bayer genetically modified rice in the U.S. rice supply. But Bayer’s
proposed interpretation of the settlement agreement—excluding supposedly
“worthless” claims arising from the same nucleus of operative facts—would mean
that the agreement was in fact “limited to” Meins when the agreement said precisely
the opposite. If the parties wanted to resolve only the Meins lawsuit, and to leave
Riceland’s federal claims open for resolution outside the agreement, then they could
have drafted the settlement agreement more narrowly. The district court did not err
by refusing to vary the terms of the written agreement. See Hurt-Hoover Invs., LLC
v. Fulmer, 448 S.W.3d 696, 703 (Ark. 2014).
Bayer also assertsthatRiceland’s federal lawsuit was “never litigated,” but this
too would not be a reason to ignore the agreement’s resolution of “any and all
claims.” In any event, there was important litigation relating to Riceland’s federal
claim. One month after Riceland filed its federal lawsuit, Bayer moved for partial
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summary judgment on all non-producer claims based on the preemptive effect of the
Plant Protection Act, 7 U.S.C. § 7756(a). If Bayer had prevailed on its motion for
summary judgment, then all of Riceland’s claims would have failed, but the
leadership group successfully defeated Bayer’s motion. The leadership group also
obtained summary judgment on several ofthe affirmative defenses that Bayer asserted
against Riceland, and it obtained extensive discovery materials that benefitted all
plaintiffs. So while Riceland itself may have done little individually to litigate its
federal claim, litigation on its behalf in the consolidated multidistrict proceedings did
benefit Riceland’s claims.
Riceland takes a different tack, arguing that the federal case was moot once the
partiessettled, and that the district court thuslacked jurisdiction over the federal case
when it ordered Bayer to cause a deposit into the common-benefit fund. Riceland’s
argument effectively concedesthat the settlement agreement encompassed the federal
claims. But while Riceland may be correct that the settlement mooted its federal
lawsuit, the district court retained jurisdiction to resolve outstanding collateral
matters, such as attorney fees. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395
(1990). Application of the Common Benefit Order was a comparable collateral
matter that the district court had jurisdiction to resolve in light of the settlement.
B.
Bayer and Riceland argue alternatively that even if the federal lawsuits gave
the district court authority to order an allocation from the settlement, the amount
ordered here was too large. Bayer contends that the court was required to apportion
the amount between the federal and state cases, and to limit the order to an amount
that “constituted a federal-court recovery.” Riceland similarly argues that the court
erroneously “ascribed 100% of the value of the settlement to a defunct federal case.”
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If the district court were required to assess the relative value of Riceland’s
federal and state lawsuits, then it would apply Arkansas state contract law to make
that determination. See Amana Refrigeration, Inc. v. Pidgeon’s Furniture &
Appliance Stores, Inc., 883 F.2d 657, 658 (8th Cir. 1989). But there is a first-order
question here: whether the court was required to make an apportionment at all. That
is not a question of state contract law but a question of federal law concerning the
scope of a district court’s authority in overseeing multidistrict litigation.
The equitable common-benefit doctrine permits a district court to redistribute
costs among plaintiffs when “the litigation has conferred a substantial benefit on the
members of an ascertainable class, and where the court’s jurisdiction over the subject
matter of the suit makes possible an award that will operate to spread the costs
proportionately among them.” Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 393-94
(1970); see Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); Alyeska Pipeline
Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 264 n.39 (1975); In re Diet Drugs, 582
F.3d 524, 546-47 (3d Cir. 2009); In re Air Crash Disaster at Fla. Everglades on Dec.
29, 1972, 549 F.2d 1006, 1017-18 (5th Cir. 1977). The district court found that the
plaintiffs’ leadership group here conferred a substantial benefit on Riceland.
Riceland was before the district court as a plaintiff, cross-claimant, or third-party
claimant in at least seven federal cases. The district court had subject-matter
jurisdiction over these federal actions. This jurisdiction was a sufficient basis for the
court to exercise its equitable and managerial authority to prevent Riceland from
freeriding on the work of the leadership group.
There is no separate requirement that the court also have jurisdiction over the
corpus of the settlement, as though this were a quasi-in rem proceeding. The district
court here chose to use amount of recovery as a proxy for the benefit conferred on
individual plaintiffs, but the court could have assessed a flat fee or used some other
measure. See Showa Denko, 953 F.2d at 164; cf. Mills, 396 U.S. at 392, 394. The key
point is that Riceland was enriched by the work of the plaintiffs’ leadership counsel,
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and Riceland’s participation in federal litigation gave the district court authority to
order the setting aside of funds recovered from Bayer to prevent unjust enrichment
of Riceland.
Riceland complains that the district court failed to consider its unique role as
both a plaintiff and a defendant. The company says that it was denied access to some
discovery material and forced to expend its own resources defending against litigation
by the plaintiffs’ leadership group. For these reasons, Riceland contends that the
district court should have analyzed whether the ten percent holdback is inequitable
as applied to Riceland. Riceland, however, did not object to entry of the Common
Benefit Order. The district court, moreover, concluded that Riceland substantially
benefited from the work of the leadership group, relying on its earlier finding that
“the leadership group’s work in discovery, motion practice, and the bellwether trials
has provided a foundation for all cases involved in the litigation.” That Riceland
supplemented this foundation does not disprove or diminish the benefit it derived
from coordinate pretrial litigation. Regarding Riceland specifically, the court noted
that the leadership group mounted a successful defense on the preemption issue, and
that Riceland’s own attorney sought reimbursement from the common-benefit fund,
thus suggesting coordination with other plaintiffs’ counsel. Given the substantial
deference owed to the district court, we cannot say the court committed an abuse of
discretion by concluding that Riceland should be subject to the same set-aside
requirement as other parties who recover from Bayer.
The Bayer-Riceland settlement was the culmination of an extensive effort by
Riceland to assert its claims against Bayer in over a half dozen lawsuits in both state
and federal court. The settlement “related to” and resolved Riceland’s federal claims.
The district court therefore properly applied the Common Benefit Order to the
settlement and required a percentage of the entire settlement to be redirected to the
common-benefit fund.
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C.
Having determined that the district court properly applied the CommonBenefit
Order to the Bayer-Riceland settlement, we now must address whether the district
court properly ordered Bayer to “caused to be deposited” ten percent of the settlement
into the common-benefit fund. Bayer contends that because it already paid the
settlement amount to Riceland, the district court effectively compelled it to cover
Riceland’s litigation expenses. Such an order, Bayer argues, violates the American
Rule, which prohibits federal courts from shifting the costs of litigation between
adverse parties without statutory authority or a contract between the parties.
Walitalo, 968 F.2d at 747. Bayer did not present this argument to the district court,
so we review for plain error. See Wiser v. Wayne Farms, 411 F.3d 923, 927 (8th Cir.
2005).
Citing Universal Title Insurance Co. v. United States, 942 F.2d 1311, 1314 (8th
Cir. 1991), Bayer argues that we have discretion to consider a purely legal issue for
the first time on appeal, and that plain-error review should not apply. But the two
propositions are not necessarily inconsistent. If the resolution of a purely legal issue
is “beyond any doubt,” see Wiser, 411 F.3d at 927, then the plain-error standard may
well be satisfied. In any event, Universal Title merely recognized the court’s
discretion to consider certain issues for the first time on appeal. 942 F.2d at 1314.
We disagree with Bayer that it is entitled to more searching appellate review of a
forfeited error than a criminal defendant challenging a conviction or term of
imprisonment. See United States v. Olano, 507 U.S. 725, 732 (1993).
Bayer contends that the authority conferred under 28 U.S.C. § 1407, which
authorizes consolidated pretrial proceedings in multidistrict litigation, is “merely
procedural” and does not give the district court authority to enter a fee-shifting award.
Rice I, 764 F.3d at 873-74 (quoting Showa Denko, 953 F.2d at 165). The district
court, however, did not order Bayer to pay attorney fees. It ordered Bayer to comply
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with the Common Benefit Order and “cause to be deposited” a portion of the
settlement into the fund. Bayer has never objected to its assigned role of holding
back portions of recoveries. That Bayer opted to pay Riceland before clarifying its
obligations under the Common Benefit Order did not convert enforcement of the
order into an impermissible fee award.
Although Bayer isrequired under the order to cause a deposit into the commonbenefit fund, the order does not mean that the district court has shifted the ultimate
burden to finance Riceland’s litigation. The parties are disputing in state court
whether the settlement agreement assigned to Bayer the cost of complying with the
Common Benefit Order. Riceland Foods, Inc. v. Bayer Cropscience LP, No.
CV-2015-072 ND (Ark. Cir. Ct. Arkansas Cty. filed June 30, 2015). If Bayer
assumed liability for the common-benefit fee by contract, that agreement would be
a permissible form of fee shifting under the American Rule. See Walitalo, 968 F.2d
at 747. Bayer also has not disclaimed an ability to seek contribution or
indemnification from Riceland, and the district court’s carefully worded order
allowed Bayer to “cause” Riceland to make the deposit if Bayer had a legal basis to
do so. We therefore find no plain error in the district court’s order assigning to Bayer
the duty of causing a deposit of the funds due under the Common Benefit Order.
* * *
The big picture here isthat Riceland was enriched by the work of the plaintiffs’
leadership group. The district court had authority to prevent unjust enrichment of
federal-court plaintiffs through the administration of a common-benefit fund. We
concluded in Rice I that where a party proceeded against Bayer exclusively in state
court, the district court lacked jurisdiction to apply the Common Benefit Order to
recoveries obtained in the state-court litigation. As a consequence, some plaintiffs
proceeding exclusively in state court would be unjustly enriched by the work of the
plaintiffs’ leadership group. Where, however, a plaintiff who benefited from this
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work chose to litigate against Bayer in both federal and state court, and to resolve its
claims in a global settlement, the district court was not required to make the loophole
larger. Application of the Common Benefit Order to the Bayer-Riceland settlement
was a proper exercise of the equitable common-benefit doctrine. The judgment of the
district court is affirmed.
______________________________
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-06-04494/USCOURTS-ca4-06-04494-0/pdf.json | [
[
"Zacarias Moussaoui",
"Appellant"
],
[
"National Association of Criminal Defense Lawyers",
"Amicus Curiae"
],
[
"United States of America",
"Appellee"
]
] | Filed: February 9, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4494
(1:01-cr-00455-LMB)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZACARIAS MOUSSAOUI, a/k/a Shaqil, a/k/a Abu Khalid al
Sahrawi,
Defendant - Appellant.
-------------------------------------
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
Amicus Supporting Appellant.
O R D E R
The court amends its opinion filed January 4, 2010, as
follows:
On page 2, attorney information section, the name “Barbara
Lynn Hartung, Richmond, Virginia” is deleted from line 1 following
“ARGUED” and added at lines 7 and 8 following “ON BRIEF” as counsel
for Appellant; the name “Justin S. Antonipillai” is deleted from
line 4 following “ON BRIEF” and added with “ARNOLD & PORTER, LLP,
Appeal: 06-4494 Doc: 300 Filed: 02/09/2010 Pg: 1 of 79
2
Washington, D.C.” at lines l and 2 following “ARGUED” as counsel
for Appellant.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
Appeal: 06-4494 Doc: 300 Filed: 02/09/2010 Pg: 2 of 79
Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ZACARIAS MOUSSAOUI, a/k/a Shaqil,
a/k/a Abu Khalid al Sahrawi, No. 06-4494
Defendant-Appellant.
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amicus Supporting Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:01-cr-00455-LMB)
Argued: September 25, 2009
Decided: January 4, 2010
Before TRAXLER, Chief Judge, and GREGORY and
SHEDD, Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Gregory and Judge Shedd joined.
Appeal: 06-4494 Doc: 300 Filed: 02/09/2010 Pg: 3 of 79
COUNSEL
ARGUED: Justin S. Antonipillai, ARNOLD & PORTER,
LLP, Washington, D.C., for Appellant. Kevin R. Gingras,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Robert A. McCarter,
Rebecca L. D. Gordon, Joseph M. Meadows, Robert Alexander
Schwartz, Danielle M. Garten, Whitney A. Moore, ARNOLD
& PORTER, LLP, Washington, D.C.; Barbara Lynn Hartung,
Richmond, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, David J. Novak, Assistant United States Attorney, David Raskin, Assistant United States Attorney, David
B. Goodhand, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia;
UNITED STATES DEPARTMENT OF JUSTICE, Appellate
Section, Criminal Division, Washington, D.C., for Appellee.
Joshua L. Dratel, LAW OFFICES OF JOSHUA L. DRATEL,
PC, New York, New York; Theresa M. Duncan, Zachary Ives,
FREEDMAN BOYD HOLLANDER GOLDBERG & IVES,
PA, Albuquerque, New Mexico, for Amicus Supporting Appellant.
OPINION
TRAXLER, Chief Judge:
Zacarias Moussaoui pled guilty to six criminal conspiracy
counts arising from the al Qaeda terrorist organization’s plot to
use commercial aircraft to commit terrorist attacks in this
country, including the attacks that occurred on September 11,
2001.1 In a subsequent sentencing proceeding, the jury
declined to impose the death penalty and the district court sentenced Moussaoui to life imprisonment without the possibility
of release on all six counts, with the sentence on the
1"Al Qaeda" is transliterated from Arabic text. Several spellings may be
acceptable for a single transliterated word. We follow the spelling conventions used by the parties.
2 UNITED STATES v. MOUSSAOUI
Appeal: 06-4494 Doc: 300 Filed: 02/09/2010 Pg: 4 of 79
first count to be served consecutively to the sentences on the
other counts. In this appeal, Moussaoui challenges the validity
of his guilty plea and his sentences. He has also filed a motion
to remand, based upon the Government’s disclosure of classified information during the pendency of this appeal. We
affirm Moussaoui’s convictions and sentences in their entirety
and deny his motion to remand.
I. Facts
On August 16, 2001, Moussaoui, a French citizen, was
taken into custody for overstaying his visa after he raised the
suspicions of his instructor at the Pan American International
Flight Academy in Eagan, Minnesota, where he was receiving
pilot training on a jet simulator. Less than a month later, September 11, 2001, nineteen members of al Qaeda hijacked
three commercial airlines and crashed them into the World
Trade Center towers in New York City and the Pentagon in
Virginia. A fourth airplane, apparently destined for the Capitol Building in Washington, D.C., crashed in a field in Pennsylvania after its passengers attempted to retake control of the
airplane from the al Qaeda hijackers. Collectively, the 9/11
attacks resulted in the deaths of nearly 3,000 people. Moussaoui was still in custody, awaiting deportation, when the
attacks occurred.
A. Procedural History
1. The Indictment
In December 2001, Moussaoui was indicted for his participation in the conspiracies that led to the 9/11 attacks. The second superseding indictment (the "Indictment"), to which he
would later plead guilty, charged him with (1) conspiracy to
commit acts of terrorism transcending national boundaries,
see 18 U.S.C.A. §§ 2332b(a)(2), (c) (West 2000); (2) conspiracy to commit aircraft piracy, see 49 U.S.C.A.
§ 46502(a)(1)(A), (a)(2)(B) (West 2007); (3) conspiracy to
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destroy aircraft, see 18 U.S.C.A. §§ 32(a)(7), 34 (West 2000
& Supp. 2009); (4) conspiracy to use weapons of mass
destruction, see 18 U.S.C.A. § 2332a(a) (West 2000); (5) conspiracy to murder United States employees, see 18 U.S.C.A.
§§ 1114, 1117 (West 2000 & Supp. 2009); and (6) conspiracy
to destroy property of the United States, see 18 U.S.C.A.
§ 844(f), (i) (West 2000 & Supp. 2009). The Indictment identified 110 overt acts committed by Moussaoui and his al
Qaeda co-conspirators, both in the United States and abroad,
including the 9/11 attacks.
2. Appointment of Counsel
Upon his indictment, the district court appointed Frank
Dunham and Gerald Zerkin, from the Federal Public Defender’s Office, and Edward MacMahon, a private practitioner, to
represent Moussaoui. The court informed Moussaoui that,
although counsel had been appointed for him, he had the right
to retain private counsel if he was able to do so. At the
arraignment on January 2, 2002, Moussaoui entered "no
plea," which the district court interpreted to be a plea of not
guilty. J.A. 55.
On January 7, 2002, the Department of Justice imposed
Special Administrative Measures (SAMs) on Moussaoui.
"SAMs are restrictions placed on a prisoner in the interests of
national security." United States v. Abu Ali, 528 F.3d 210,
243-44 (4th Cir. 2008); 28 C.F.R. § 501.3(a) (2008) (providing for the imposition of SAMs where the Attorney General
determines that "there is a substantial risk that a prisoner’s
communications or contacts with persons could result in death
or serious bodily injury to persons"). The SAMs were
imposed to prevent Moussaoui from passing coded messages
to or otherwise communicating with other terrorists. The
SAMs permitted Moussaoui to have unmonitored attorney/client and consular communications and mail, monitored
visits and telephone calls with immediate family, and monitored mail with all others. Approved mail would be forwarded
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to defense counsel for distribution to Moussaoui and Moussaoui would be notified of any seized mail.
Because the case involved classified national security information, the Government also sought and received a protective
order (the "Protective Order") under the Classified Information Procedures Act (CIPA). See 18 U.S.C.A. app. 3, § 3
(West 2000). Under the terms of the Protective Order, access
to classified information produced by the Government in discovery was restricted to persons with the necessary security
clearances, which included defense counsel. The Protective
Order therefore allowed disclosure of classified information
to defense counsel, but not to Moussaoui personally unless the
Government consented or the district court determined that
making it available was necessary.
The relationship between Moussaoui and his appointed
attorneys was strained at best, and Moussaoui almost immediately began demanding to proceed pro se, but with the assistance of Muslim counsel. In April 2002, counsel for
Moussaoui filed a motion requesting that the SAMs restrictions be lifted to permit Moussaoui to have an unrestricted
visit with "[a]n Islamic scholar, referred to . . . as John Doe."
J.A. 145. Counsel explained that the scholar would consult
with Moussaoui and the attorneys so as to improve the "communication and understanding between them," but that the
scholar was unwilling to undergo the vetting process required
by the SAMs. J.A. 145. The Government opposed the motion,
arguing that the pre-clearance requirement was "one of the
cornerstone requirements of the SAM[s] as it [ ] prevents a
miscreant sympathizer from meeting with Moussaoui and
passing on or receiving deadly information (names of witnesses not yet publicly revealed, etc.), as called for in the al
Qaeda terrorism manual." J.A. 187. The district court ultimately denied the motion, concluding that the Government’s
allegations against Moussaoui were supported by probable
cause and that it would be too dangerous to allow an unnamed
"John Doe" unfettered access to Moussaoui.
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At the hearing held on the motion to lift the SAMs, however, Moussaoui stated that he in fact never had any intention
of speaking with John Doe and that his request was simply an
excuse to come to court so he could move to proceed pro se.
Moussaoui complained that his appointed attorneys had "no
understanding of terrorism, [Islam, or] Mujahedin," J.A. 232,
and that the Government was "preventing any Muslim help"
from reaching him, J.A. 223. Moussaoui told the court that he
intended "to hire[ ] [his] own chosen Muslim lawyer to assist
[him] in matters of procedure and understanding of the . . .
law." J.A. 220. Moussaoui explained, however, that he sought
Muslim counsel only for assistance with witnesses and material necessary for his defense, and that no attorney—including
any Muslim counsel chosen by Moussaoui—would ever represent him. Moussaoui also demanded that the court "not . . .
engage in any communication or relation with [his] Muslim
lawyer, concerning any aspect of [his] case." J.A. 215.
The district court advised Moussaoui that he had the right
to proceed pro se and the right to hire an attorney at his own
expense but that Moussaoui could not pick the attorney to be
appointed for him. The district court explained that because
there was classified information protected by the Protective
Order, Moussaoui would not have "totally unrestricted choice
even if [he had] the money available to hire an attorney,
because the attorneys . . . have to be able to be cleared to
receive some of the information in this case." J.A. 246.
After Moussaoui moved to proceed pro se, appointed counsel requested a competency evaluation. They also filed a
motion seeking to grant Moussaoui full access to the classified discovery information and seeking relief from the SAMs
if the district court granted Moussaoui’s request to proceed
pro se. In connection with these motions, defense counsel
advised that the Government had added several Muslim attorneys to the list of counsel cleared to see Moussaoui at their
request, but that "this process will not work if Mr. Moussaoui
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is granted pro se status such that current counsel no longer act
for him." J.A. 444 n.9.
After lengthy proceedings, the district court found that
Moussaoui was competent and that Moussaoui had validly
waived his right to counsel. However, given the complex
nature of the case and the existence of classified discovery
information, the district court determined that "standby" counsel would be required to assist Moussaoui.
Moussaoui told the district court that he had been allowed
to meet with a Muslim attorney who had agreed to represent
him pro bono. Moussaoui made it clear, however, that he still
intended to represent himself, because "it [was] not possible
for [Moussaoui] to entrust [his] life to somebody else." J.A.
527. Moussaoui thus explained that this attorney would only
work as his assistant outside the court, but not as counsel of
record.
Because Moussaoui’s pro bono counsel had not yet made
an appearance, the court ordered existing attorneys to remain
in the case as standby counsel until Moussaoui’s chosen attorney made an appearance. The district court advised Moussaoui that any attorney assisting him would have "to comply
with the rules of ethics and behavior," J.A. 527, and associate
local counsel under the district court’s local rules if the attorney was not licensed to practice law in Virginia. The attorney
would also have to pass at least a preliminary FBI background
check before the attorney would be permitted to help Moussaoui. The court also informed Moussaoui that Randall
Hamud, a Muslim attorney hired by Moussaoui’s mother, was
in the courtroom, but Moussaoui refused to meet with him.
Problems persisted between Moussaoui and his appointed
attorneys, so the district court dismissed MacMahon and
appointed Alan Yamamoto as additional standby counsel. The
court ruled that if pro bono counsel had not entered an
appearance by June 28, 2002, an additional standby attorney
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would be appointed to replace the federal public defenders.
The district court advised Moussaoui that Yamamoto was
available to help him "locate witnesses and evidence," and
that Yamamoto would "be invaluable to any pro bono counsel
. . . unfamiliar with the practices of this Court." J.A. 575.
Moussaoui immediately objected and identified Charles
Freeman, a Muslim attorney from Texas, as his attorney of
choice. However, in keeping with his prior statements, Moussaoui explained that "Bro[ther] Freeman [was] only a legal
consultant" and that Moussaoui would "never, under any circumstance, use him [or] appoint him as a standby lawyer."
J.A. 628. Moussaoui requested that appointed counsel be dismissed and that Freeman be allowed to appear as his "legal
consultant" or "advisor" at upcoming proceedings. J.A. 629.
Freeman, however, did not enter an appearance by June 28,
as required by the district court, nor had he passed the FBI
background check by that date. The district court therefore
denied Moussaoui’s motion to remove appointed counsel and
to allow Freeman to assist him. The court explained that
Mr. Freeman is not licensed to practice law in the
Commonwealth of Virginia, has not been admitted to
practice before this court, has not been admitted to
practice in this case pro hac vice as required by [the
local rules], and has not entered an appearance in
this case. He may already have violated [the local
rules] by submitting two pleadings, which have been
filed for administrative purposes only, but will not
be considered by the Court. Because Mr. Freeman
has not been qualified to lawfully represent the
defendant in this court, he may not sit inside the well
of the court at the defendant’s June 25, 2002 rearraignment. He may, however, attend court proceedings as a member of the public.
J.A. 657. The following day, Freeman advised the court in
writing that:
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I never intended to assist Bro[ther] Moussaoui by
appearing as any so-called standby counsel because
I refuse to be a toothless paper tiger amounting to
absolutely no counsel at all. Unless and until Bro[-
ther] Moussaoui asks me to represent him as his lawyer, if he ever asks, I will only provide out-of-court
legal assistance to him solely on federal law.
J.A. 659-60 (footnotes omitted). Freeman made it clear that he
was "not, by filing th[e] pleading, entering any appearance at
all in the . . . prosecution," J.A. 659 n.1, and that the "request
should not be construed by anyone as an appearance before
this Honorable Court because it is not," J.A. 663 n.8.
At this point in the proceedings, then, Moussaoui had
rejected the help of Yamamoto (in addition to the initial three
appointed attorneys), and Moussaoui had rejected all attempts
by the court, appointed counsel, the Government, and his
mother to assist him in obtaining Muslim counsel. In addition,
Freeman, whose services Moussaoui had sought, had refused
to enter an appearance and assume the role of standby counsel. Concluding that no appointed attorney would ever satisfy
Moussaoui, the court ruled that the federal public defenders
and Yamamoto would remain as standby counsel, and reappointed MacMahon. The court encouraged Moussaoui to "reconsider his refusal to communicate with these lawyers, who
[were] poised to help him obtain experts, locate witnesses and
even provide the paper supplies he needs to mount his
defense." J.A. 787. The court warned Moussaoui that his
"continued unreasonable refusal to interact with standby
counsel [was] only hurting his defense." J.A. 787-88.
Throughout the remainder of the proceedings, Moussaoui
periodically renewed his complaints concerning Freeman,
asserting that the court’s refusal to allow the access he
demanded left him with no "meaningful way to defend" himself. J.A. 695. The district court repeatedly advised Moussaoui that he was not entitled to advisory counsel of his
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choice, particularly where such counsel was unwilling to enter
a formal appearance and be bound by the rules of the court.
See United States v. Singleton, 107 F.3d 1091, 1100-03 (4th
Cir. 1997) (finding that a pro se defendant does not have a
right to an intermediate accommodation such as "advisory"
counsel).
3. The July 2002 Guilty Plea Attempt
On July 18, 2002, Moussaoui informed the court that he
had knowledge of the 9/11 attacks, knew "exactly who d[id]
it, . . . which group, who participated, [and] when it was
decided," and wanted to plead guilty. J.A. 858-59. Moussaoui
stated that he believed that the guilty plea would "save [his]
life, because the jury [would] be . . . able to evaluate how
much responsibility [he] ha[d]." J.A. 858. After warning
Moussaoui that his words could be used against him and suggesting that the Government might enter into plea negotiations with him, the district court gave Moussaoui a week to
consider his decision. Defense counsel again challenged
Moussaoui’s competency and renewed their concerns regarding Moussaoui’s access to the classified discovery, asserting
that "there is exculpatory evidence which has not been provided to him and that his plea of guilty may mean that he
might never have the benefit of such information to use to
contest his guilt." J.A. 866.
At the scheduled Rule 11 hearing, see Fed. R. Crim. P. 11,2
2The district court first offered to postpone the hearing to allow Moussaoui additional time to consult with Professor Sadiq Reza from the New
York Law School, another Muslim attorney who had met with Moussaoui
in an effort to establish a relationship. Moussaoui declined. He did, however, persist in his demands regarding access to Freeman, and the court
again advised Moussaoui that access was contingent upon Freeman’s compliance with the requisite rules and orders governing such representation:
I’ll say it one more time. The SAM[s] say[ ] you get the right to
unmonitored visits only with the attorney of record. . . . All this
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Moussaoui again expressed his belief that the jury might find
him more credible and decline to impose the death penalty if
he pled guilty. However, Moussaoui was ultimately unwilling
to admit to the facts necessary to support a guilty plea to the
charged conspiracies and withdrew his request.
B. The First Appeal
Beginning in September 2002, Moussaoui sought access to
several al Qaeda associates in the custody of the United States
government (the "enemy combatant witnesses" or "ECWs"),
who Moussaoui believed would be helpful to his defense. The
district court agreed, and ordered the Government to produce
three of the ECWs for depositions under Rule 15,3 but denied
access to the remainder because Moussaoui had failed to
establish that they would provide material, admissible testimony. See United States v. Moussaoui, 382 F.3d 453, 458 n.4
(4th Cir. 2004) ("Moussaoui II"). As discussed in more detail
below, we reversed the district court’s decision granting
Moussaoui access to the ECWs and remanded the case for the
preparation of substitutions that would provide Moussaoui
with substantially the same ability to make his defense. See id.
at 456-57. On March 21, 2005, the Supreme Court denied
review of our decision.
Court has said is that Mr. Freeman cannot and does not qualify
as an attorney of record because he has consistently made it clear
that he is not entering an appearance on your behalf. . . . [H]e
could get admitted to practice here if he followed the local rule.
So we have a lawyer who is not admitted to practice in this district, who is not the attorney of record representing you. Therefore, under the SAM[s], he is no different from any member of
the public. Now, members of the public can write to you under
the SAM[s]. That letter would be reviewed by an FBI agent, and
if there was no objection to it, it would go to you.
J.A. 1040-41.
3Rule 15(a)(1) of the Federal Rules of Criminal Procedure provides that
a court may order depositions of witness to preserve testimony for trial
"because of exceptional circumstances and in the interest of justice."
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During the pendency of the earlier appeal, the district court
revoked Moussaoui’s right to proceed pro se. Since October
2003, the district court had received over twenty filings from
Moussaoui, "most of which [were] not proper requests for
appropriate judicial relief." J.A. 1368. These filings "include[d] veiled, and in some cases overt, threats to public officials, attacks on foreign governments, attempts to
communicate with persons overseas, and efforts to obtain
materials unrelated to this case." J.A. 1368.4 After the district
court specifically warned Moussaoui that he might lose his
right to continue pro se if he continued this course, Moussaoui filed two additional improper pleadings, and the district
court revoked Moussaoui’s pro se status.5 Moussaoui would
later testify that his writings were intentionally designed to
promote his agenda of disseminating propaganda about al
Qaeda’s war against the United States.
C. The Guilty Plea
On March 29, 2005, eight days after the United States
Supreme Court denied certiorari review of our decision in
Moussaoui II, Moussaoui informed the court that he wanted
to enter an unconditional plea of guilty to all counts in the
Indictment.
4
See e.g., J.A. 1287 ("Emergency Strike by Slave of Allah Mujahid
Zacarias Moussaoui to counter Dirty Insider Dealing by Fat Megalo Dunham for his Chief Pay Persecution Master Ashcroft (a/k/a United Satan
Chief Liar) and to Have Fat Megalo Out of 9/11 Circus Trial"); J.A. 1359
("$100000 Cash in for ‘Victim Impact’ Extravaganza (a/k: Sucking Scavenger made in U.S.A.)"); J.A. 1358 ("20th Hijacker $100000 American
Tax Payers for 3000+ Americans Dead Head Account").
5
See J.A. 1374 (20th Hijacker: Leonie You Bitch, But ZM must get the
Wicked Tyran Congress 9/11 Report!"); J.A. 6289 ("20th Hijacker: Real
Bitch of Leonie Brinkema position on Uncle Sam").
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1. The Rule 11 Proceeding
In light of the prior attempt to plead guilty and the publicity
surrounding the case, the district court first held, with the consent of the Government, an ex parte hearing with Moussaoui
and Yamamoto to discuss the guilty plea.6 Yamamoto advised
the court that Moussaoui was "now willing to accept responsibility for the events of 9/ll." 2 Supp. J.A. 55.7
Yamamoto represented that he had discussed with Moussaoui his appeal
rights regarding the ECWs and advised Moussaoui that those
issues would be waived, except with regard to the penalty
phase. Moussaoui stated that he had received a letter from
defense counsel and had "plenty of discussion[s] with Mr.
Yamamoto." 2 Supp. J.A. 45. According to Moussaoui, "they
have pour[ed] on me all their so-called legal advice. . . . So
I have heard them, I have read them, I understand what they
say, but we do not agree. That’s all. But somehow they can’t
take that I don’t . . . agree with them." 2 Supp. J.A. 44-45.
Moussaoui stated that he was "voluntar[ily] choosing this
course of action" and exercising his "privilege . . . to plead
guilty [and] testify on [his own] behalf." 2 Supp. J.A. 44-45.
With regard to the effect of a guilty plea on Moussaoui’s right
to assert other claims, Moussaoui told the district court:
We could stay all day here, and I would flood you
with reasons, and you have no interest in it. What is
certain . . . is I’ve listened to their advice, read. . .
the Blackledge v. Perry8 case [they sent] with the
6Although Moussaoui initially refused to communicate with any of his
appointed counsel, he later testified that he began communicating with
Yamamoto because Yamamoto was polite to him.
7The parties have submitted numerous joint appendices in this appeal.
Unclassified appendices are designated "J.A." Classified appendices are
designated "J.A.C." Supplemental appendices are so designated, with,
where necessary, the number of the supplemental appendix noted –- i.e.,
"2 Supp. J.A."
8Moussaoui was referring to Blackledge v. Perry, 417 U.S. 21, 29-30
(1974), discussed infra, which addresses the effect of a guilty plea on the
right to challenge pre-plea constitutional violations.
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statement of the Supreme Court, who made absolutely clear that once you have pled guilty, you cannot raise any . . . claim relating to deprivation of
constitutional rights . . . that occur[s] prior to the
entry of the guilty plea. This is the word of the
Supreme Court.
2 Supp. J.A. 59.
The district court found no indication that Moussaoui had
been coerced to plead guilty, noting that "[i]f anything, the
coercion has been for him not to plead." 2 Supp. J.A. 67. The
court further found that Moussaoui had received "full advice
of counsel," but observed that "[a] defendant in our system
has an absolute right to reject that advice. It does not make
him incompetent, and it does not make him unwise, and in
some cases, who knows, it might have been the better decision." 2 Supp. J.A. 67. Satisfied that Moussaoui was competent, the district court concluded that Moussaoui understood
the ramifications of pleading guilty and that Moussaoui’s plea
was knowing and voluntary.
On April 22, 2005, the district court conducted a public
plea colloquy under Rule 11 of the Federal Rules of Criminal
Procedure, reviewing each of the six counts charged and
advising Moussaoui of the maximum penalties he faced.
Moussaoui confirmed that he had received a copy of the
Indictment long ago and "kn[ew] very much what it’s talking
about." J.A. 1419. The district court explained to Moussaoui
that he would be waiving his right to subsequently challenge
his guilt and his right to raise other issues that arose prior to
the guilty plea, including the issues regarding access to the
ECWs.
Yamamoto advised the court that he had also discussed the
consequences of the guilty plea with Moussaoui and that
Moussaoui "appear[ed] to understand it." J.A. 1434. Yamamoto also advised that Moussaoui had "responded appropri14 UNITED STATES v. MOUSSAOUI
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ately when [he had] spoken to him" and, while they had
"disagreements . . . with respect to certain items[,] [t]hose disagreements were appropriate disagreements." J.A. 1434.
2. The Statement of Facts
In connection with his guilty plea, a written statement of
facts (the "Statement of Facts") was prepared, detailing the
facts pertaining to al Qaeda’s plans for terrorist attacks in the
United States, Moussaoui’s association with al Qaeda, and the
steps Moussaoui took to prepare for the operation and to protect it after he was detained. When he signed the document,
Moussaoui added the designation "20th Hijacker" to his signature. J.A. 1413. A summary of the Statement of Facts, as
adopted and executed by Moussaoui, follows.
Al Qaeda is "an international terrorist group" founded by
Usama Bin Laden (hereinafter "Bin Laden"), that is "dedicated to opposing the United States with force and violence."
J.A. 1409. The head of its military committee was Mohammed Atef, a/k/a Abu Hafs al-Masri (hereinafter "al-Masri").
Al Qaeda members pledge "bayat" to Bin Laden and al
Qaeda, J.A. 1409, meaning that they "give allegiance to Bin
Laden and the group." J.A. 1671. Since 1996, al Qaeda has
been headquartered in Afghanistan, but it associates with terrorists in other parts of the world to further its goals.
In the mid-1990s, Bin Laden issued a fatwah (or religious
ruling) declaring jihad (or war) against the United States and
its allies, sanctioning the killing of United States military and
civilians alike. In furtherance of these aims, "Bin Laden and
al Qaeda provided and supported training camps and guesthouses in Afghanistan, including camps known as al Farooq
and Khalden." J.A. 1409. The training "camps were used to
instruct members and associates of al Qaeda and its affiliated
groups in the use of firearms, explosives, chemical weapons,
and other weapons of mass destruction." J.A. 1409.
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In connection with al Qaeda’s declaration of war, "al Qaeda
members conceived of an operation in which civilian commercial airliners would be hijacked and flown into prominent
buildings, including government buildings, in the United
States." J.A. 1410. In preparation for the attacks, "al Qaeda
associates entered the United States, received funding from
abroad, engaged in physical fitness training, and obtained
knives and other weapons with which to take over airliners."
J.A. 1410. Some of these "associates obtained pilot training,
including training on commercial jet simulators, so they
would be able to fly hijacked aircraft into their targets." J.A.
1410. "Bin Laden personally approved those selected to participate in the operation, who were willing to die in furtherance of their religious beliefs and al Qaeda’s agenda." J.A.
1410.
Moussaoui was a member of al Qaeda and pledged bayat
to Bin Laden. He trained at al Qaeda’s Khalden Camp and
managed an al Qaeda guesthouse in Kandahar, "a position of
high respect within al Qaeda." J.A. 1410. Moussaoui communicated directly with Bin Laden and al Masri while in Afghanistan. He "knew of al Qaeda’s plan to fly airplanes into
prominent buildings in the United States" and "agreed to
travel to the United States to participate in the plan." J.A.
1410. As he did with the other hijackers, Bin Laden personally selected Moussaoui to participate in the planes operation
and approved Moussaoui to attack the White House, which
had been Moussaoui’s dream.
In preparation for the operation, the al Qaeda leadership
first sent Moussaoui to Malaysia to explore flight training.
They also provided him with information about flight schools
in the United States. In September 2000, Moussaoui contacted
Airman Flight School in Norman, Oklahoma. Moussaoui’s
intent was to obtain pilot training to further "al Qaeda’s plan
to use planes to kill Americans." J.A. 1411. "On February 23,
2001, Moussaoui traveled from London to Chicago and then
on to Norman, Oklahoma," where he enrolled at Airman
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Flight School and began pilot training on small planes. J.A.
1411. Like his co-conspirators, he joined a gym and purchased knives, intentionally selecting knives with blades short
enough to pass through airport security.
In the summer of 2001, Moussaoui was instructed by an al
Qaeda associate to train on larger jet planes. Ramzi Bin alShibh, another al Qaeda operative, sent Moussaoui a wire
transfer of money from Germany to the United States to pay
for the flight training. Shortly thereafter Moussaoui enrolled
at the Pan American International Flight Academy in Eagan,
Minnesota, and began simulator training for a Boeing 747-
400. Moussaoui told another al Qaeda associate that his simulator training would be completed before September 2001.
At the time of his arrest, Moussaoui was in possession of
knives, flight manuals for the Boeing 747-400, a flight simulator computer program, fighting gloves and shin guards, a
piece of paper referring to a handheld Global Positioning System ("GPS"), software that could be used to review pilot procedures for the Boeing 747-400, and a hand-held aviation
radio. When questioned after his arrest, Moussaoui "lied to
federal agents to allow his al Qaeda ‘brothers’ to go forward
with the operation." J.A. 1412. He "falsely denied being a
member of a terrorist organization and falsely denied that he
was taking pilot training to kill Americans." J.A. 1412. He
told the "agents that he was training as a pilot purely for his
personal enjoyment and that, after completion of his training,
he intended to visit New York City and Washington, D.C., as
a tourist." J.A. 1412. The attacks of 9/11 happened less than
a month after Moussaoui’s arrest.
At the ex parte guilty plea proceeding, Moussaoui advised
the court that he had read the Statement of Facts "more than
probably ten time[s]." 2 Supp. J.A. 45. Moussaoui made a single correction to the Statement of Facts, changing the date
that he told his al Qaeda associate that he would finish jet
simulator training from "by August 20, 2001" to "before SepUNITED STATES v. MOUSSAOUI 17
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tember 2001." 2 Supp. J.A. 45-46. At the public Rule 11 hearing, Moussaoui confirmed that he had received a revised copy
of the Statement of Facts, which had been corrected in accordance with his request at the ex parte hearing.
3. Acceptance of the Plea
At the conclusion of the Rule 11 hearing, the district court
made the following findings and conclusions:
I have previously found based on a rather unusual
hearing that was done on the record with Mr. Moussaoui and Mr. Yamamoto present that I am fully satisfied that Mr. Moussaoui is completely competent
to enter his guilty pleas today. The defendant has
acted against the advice of his counsel, but he has
clearly exhibited both today and earlier this week a
complete understanding of the ramifications of his
guilty pleas.
Mr. Moussaoui is an extremely intelligent man.
He has actually a better understanding of the legal
system than some lawyers I’ve seen in court. I reread
the transcript from the plea hearing of two-and-ahalf years ago, and he . . . understood then and I have
no reason to believe he does not understand now the
nature of conspiracy law.
The full reasons for my finding the defendant
competent, I think, are adequately expressed in the
transcript of that hearing . . . but I am satisfied, Mr.
Moussaoui, that you have entered these guilty pleas
in a knowing and voluntary fashion. You have intentionally disregarded the advice of counsel. That is
your right in our legal system.
The Court is also satisfied that the written statement of facts which you have had several days to
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carefully go over and you have had the advice and
consultation of Mr. Yamamoto is more than sufficient evidence to establish your guilt beyond a reasonable doubt as to all six counts.
J.A. 1435-36.
D. The Sentencing Proceeding
Because the Government sought the death penalty under
the Federal Death Penalty Act ("FDPA"), see 18 U.S.C.A.
§§ 3591-3599 (West 2000 & Supp. 2009), the district court
conducted a bifurcated capital sentencing proceeding before a
jury. The first phase ("Phase I") was to determine whether the
Government had proven a statutory death-eligibility factor,
and the second phase ("Phase II") was to determine whether
the death penalty would be imposed.
During Phase I, the Government presented extensive evidence regarding the conspiracies alleged in the Indictment,
including evidence of the activities of the 9/11 hijackers and
Moussaoui in the months preceding the 9/11 attacks, the similarities between Moussaoui’s actions and those of the 9/11
hijackers, and the overlap between the al Qaeda leadership
directing them all. Moussaoui also testified, confirming his
participation in the conspiracies.
Moussaoui testified that al-Masri asked him to be a part of
the planes operation in the winter of 1999. Moussaoui ultimately agreed and began training for his mission, which was
to fly a fifth plane on 9/11 into the White House. Moussaoui
specifically denied he was scheduled to be a fifth hijacker on
the flight that crashed in Pennsylvania, testifying that he
signed the Statement of Facts as the "20th hijacker" as "a bit
of fun," "[b]ecause everybody used to refer to [him] as the
20th hijacker." J.A. 3877.
When sent to Malaysia to obtain flight training, Moussaoui
was hosted by members of Jemaah Islamiyah (hereinafter
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"JI"), an al Qaeda-affiliated terrorist group. Moussaoui testified that he had problems with JI when he was in Malaysia –
he talked too much about his mission and was involved in an
unnecessary purchase of explosives. Because of those problems, the al Qaeda leaders temporarily excluded Moussaoui
from the planes operation. Although he was later re-included
in the operation, his position remained under review. According to Moussaoui, time was of the essence and al-Masri told
him to "just go to America" and that he would "be informed
of what [he] need[ed] to know in due time." J.A. 3954. Moussaoui testified that al-Masri told him to communicate with
Khalid Sheikh Mohammed (hereinafter "KSM"), the so-called
"mastermind" of the planes operation.
In February 2001, Moussaoui arrived in the United States
with $35,000 in cash and a fake business letter given to him
by a JI member to use as cover for his presence in this country. He immediately traveled to Airman Flight School to begin
his pilot training. Moussaoui contacted the Pan Am Flight
Academy in May 2001 and was offered enrollment for
$8,300, for classes beginning in mid-August 2001. Moussaoui
sent the school a $1,500 deposit. Mustafa Ahmed alHawsawi, an al Qaeda operative, first transmitted money to
Bin al-Shibh in Germany, who in turn transmitted money to
Moussaoui. Moussaoui informed KSM that he would be out
of jet simulator training before September 2001. Moussaoui’s
roommate, Hussein al-Attas, accompanied him on the trip to
Minnesota, where he began his training on August 13 at Pan
Am. Moussaoui told al-Attas that they would go to New York
City when he completed his training "to see the sites." J.A.
3226. Before he left for the United States, Moussaoui bought
knives to use to take over the plane and, if necessary, kill passengers or flight attendants. He was in the process of obtaining a GPS device when he was arrested.
Moussaoui testified that he did not know specifics of the
planned operation, but knew there were other al Qaeda associates in the United States and that the hijacking plot was in
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the works when he was arrested. Moussaoui knew that the
White House was a target, as were the World Trade Center
towers, and he knew that additional planes would fly as part
of the mission. Because he had been told that there was time
pressure for him to finish his training and because he had conveyed the message that he would be ready before September,
Moussaoui expected the attacks to occur shortly after August
2001. Moussaoui testified that he lied to the agents when he
was arrested "because I’m al Qaeda" and "at war with this
country," J.A. 3881, and because he "wanted [his] mission to
go ahead," J.A. 3882. While he was in custody, the 9/11
hijackers finalized their plans, bought plane tickets and
knives, and returned unused money to al-Hawsawi.
The substituted statements of KSM and several other terrorists were also admitted as evidence during the sentencing proceedings. Although much of this evidence was inculpatory,
portions contradicted Moussaoui’s testimony that he was supposed to participate in the 9/11 strikes, instead indicating that
Moussaoui was to fly in a planned second wave of attacks.
Other portions of this evidence confirmed problems Moussaoui had in Malaysia and the United States while preparing
for his mission, portraying Moussaoui as an unpredictable
operative prone to violations of al Qaeda’s rules regarding
operational security.
According to KSM, Bin Laden first pursued the idea of the
planes operation in 1998. KSM stated that the planes operation included plans for a first and second wave of attacks and
that "the original plan called for Moussaoui to lead the [second] attack operation in the [United States]." J.A. 3998.9
The
first wave of attacks was to be carried out by Arab al Qaeda
associates on the East Coast. The second wave of attacks was
to be carried out by non-Arab associates (such as Moussaoui)
on the West Coast because KSM believed the non-Arabs
9For ease of reading, all internal quotations marks from the statements
have been omitted.
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would still be able to operate in the heightened security
expected after the first wave. For this reason, KSM stated that
Moussaoui would not have been used in the first wave even
if a hijacker pulled out. KSM stated that Moussaoui’s preparations for the "second wave attack . . . entailed the same steps
as the September 11 hijackers: getting flight lessons, purchasing knives, etc.," J.A. 3988, and that the efforts for the second
wave began in parallel with the first wave. KSM confirmed
that Moussaoui was sent to Malaysia to obtain flight training
in late 1999, and that he caused problems with the JI group.
KSM did not think Moussaoui was "a suitable operative" and
asked Bin Laden and al-Masri to remove him from the operation. J.A. 4023. However, "Moussaoui lobbied [al-Masri] and
Bin Laden to use him in operations, and their pressure compelled [KSM] to include him in the second wave plan." J.A.
4021.
KSM also confirmed that Moussaoui was sent to the United
States for flight training and that he was Moussaoui’s contact.
After several security missteps by Moussaoui, however, KSM
became exasperated and turned Moussaoui over to Bin alShibh. According to KSM, "Moussaoui did not have any particular personality flaws, but . . . had a different state of mind
from other operatives because he had been raised in the
[W]est." J.A. 4026. In particular, he had a "high level of selfconfidence" and "a hard time taking instructions." J.A. 4026.
Nonetheless, "[d]espite [this] admittedly problematic personality, [KSM] tasked Moussaoui to take flight lessons in preparation for the second wave attacks." J.A. 4019. According to
KSM, the "plan for a second wave attack ended with Moussaoui’s arrest." J.A. 4022.10
10The statements of al-Hawsawi and al-Kahtani were also presented to
the jury during this phase. Among other things, both witnesses provided
statements indicating that al-Kahtani was sent to the United States in
August 2001 to "complete the group" of 9/11 hijackers. J.A. 4063. This
was consistent with Moussaoui’s testimony that he was not the 20th
hijacker.
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At the conclusion of Phase I, the jury found the requisite
death eligibility factor and moved on to Phase II, to determine
whether to impose the death penalty. During this phase,
Moussaoui again exercised his right to testify and, among
other things, elaborated upon his relationship with counsel.
Moussaoui told the jury that he wanted to advance two arguments in his defense: first, that "jail [was] a greater punishment than . . . being sentenced to death, and [that] martyrdom,
execution, [would] be a reward" and, second, that the jury
"could save [an] American life by keeping [him] alive
because they could use [him] as a bargaining chip, so if one
day some American serviceman [is] taken hostage in Iraq or
Afghanistan, they could . . . exchange Moussaoui [for] the
American soldier." J.A. 4433. Moussaoui testified that the
"jury might spare the death penalty to their enemy, but . . . not
to a coward liar," J.A. 4480, and that "by testifying truthfully,
I will save my life," J.A. 4482. Moussaoui criticized counsel’s
plan to assert that he was mentally ill, which he believed
would not "explain [his] train[ing] on the 747-400, [the] large
amount of cash [he was given], or his traveling to Malaysia."
J.A. 4435.
Moussaoui also addressed the passionate and offensive
documents that he had filed during the course of his prosecution, including pleadings asserting that the district court judge
was trying to kill him, referring to them as "psychological
warfare pro[pa]ganda." J.A. 4429. Moussaoui explained to the
jury that "when I saw something that I believe[d] I could
exploit or I could [use to] psychologically damage you, whatever, by propaganda, I will do it." J.A. 4484. Moussaoui also
admitted that he told his psychologist that his pro se pleadings
were being published and that "Muslim people around the
world have . . . been made happy or have been motivated by
them." J.A. 4484.
Moussaoui’s sentencing strategy appears to have worked.
The jury declined to impose the death penalty. In addition, not
a single juror found that Moussaoui suffered from a psychotic
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disorder, or that his testimony about his plan to fly a plane
into the White House was unreliable or contradicted by his
other statements. Moussaoui was sentenced by the district
court to six terms of life imprisonment without the possibility
of release, with the sentence on the first count to be served
consecutively to the remaining five.
At no point during the sentencing proceedings, nor prior to
the actual sentencing, did Moussaoui seek to withdraw his
guilty plea. On the contrary, Moussaoui twice took the stand
and confirmed his guilt. Four days after he avoided the death
penalty and was sentenced to life imprisonment, however,
Moussaoui filed a motion to withdraw his plea, claiming that
his "understanding of the American legal system was completely flawed" and asking for a new trial "[b]ecause I now
see that it is possible that I can receive a fair trial . . . even
with Americans as jurors and that I can have the opportunity
to prove that I did not have any knowledge of and was not a
member of the plot to hijack planes and crash them into buildings on September 11, 2001." 2 Supp. J.A. 435 (internal quotation marks omitted). In other words, Moussaoui sought to
withdraw his guilty plea (and contradict the sworn testimony
he had just given) because he had been successful in the penalty phase proceedings. Moussaoui also claimed that he had
proceeded pro se only because "the [SAMs] prevented me
from seeking and obtaining a Muslim lawyer of my choice"
and that "Brother Charles Freeman, a Muslim attorney, was
not permitted to be my lawyer." J.A. 5622.
The district court denied the motion to withdraw the guilty
plea. See Fed. R. Crim. P. 11(e) (providing that "[a]fter the
court imposes sentence, the defendant may not withdraw a
plea of guilty or nolo contendere, and the plea may be set
aside only on direct appeal or collateral attack."). This appeal
followed.
II. Discussion
"[A] guilty plea is a grave and solemn act to be accepted
only with care and discernment." Brady v. United States, 397
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U.S. 742, 748 (1970). It "comprehend[s] all of the factual and
legal elements necessary to sustain a binding, final judgment
of guilt and a lawful sentence." United States v. Broce, 488
U.S. 563, 569 (1989).
In order for a guilty plea to be valid, the Constitution
imposes "the minimum requirement that [the] plea be the voluntary expression of [the defendant’s] own choice." Brady,
397 U.S. at 748. Because it operates as a waiver of important
constitutional rights, the plea must also be entered "knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’" Bradshaw v.
Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady, 397 U.S.
at 748). It must reflect "a voluntary and intelligent choice
among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). In
evaluating the constitutional validity of a guilty plea, "courts
look to the totality of the circumstances surrounding [it],
granting the defendant’s solemn declaration of guilt a presumption of truthfulness." Walton v. Angelone, 321 F.3d 442,
462 (4th Cir. 2003) (internal citation omitted).
When Moussaoui executed the Statement of Facts at the
Rule 11 hearing in April 2005, he clearly admitted "that he
committed the acts charged in the [I]ndictment." Brady, 397
U.S. at 748. He confirmed that he had been advised of and
understood that his guilty plea would bar any challenge to
pre-plea constitutional violations. He also represented that he
was entering the plea knowingly, voluntarily, and with (but
against) the advice of his counsel. During the sentencing proceeding, Moussaoui confirmed the admissions made in the
Statement of Facts, adding that his specific mission was to fly
a fifth plane into the White House on 9/11.
Nevertheless, Moussaoui now challenges his guilty plea,
asserting (1) that various pre-plea rulings by the district court
violated his constitutional rights, rendering his plea involuntary as a matter of law; (2) that his plea was not knowingly
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entered because he had not yet been made privy to certain
classified, exculpatory evidence when he pled guilty; (3) that
his plea was not properly counseled because counsel were
prohibited from discussing the substance of this classified,
exculpatory evidence with him at the time of the plea; (4) that
his plea should not have been taken in the absence of further
competency evaluations; and (5) that the plea colloquy otherwise failed to comply with Rule 11 of the Federal Rules of
Criminal Procedure. We address each claim seriatim.
A. The "Voluntarily Entered" Challenge
We begin with Moussaoui’s claim that his plea was involuntary as a matter of law because the district court issued several pre-plea rulings that violated his Fifth and Sixth
Amendment rights to obtain counsel of his choice; to have
personal, pretrial access to classified, exculpatory evidence; to
communicate with his counsel about this evidence; to effectively proceed pro se; to be present during critical stages of
the proceedings; and to have compulsory process to present
the ECWs at trial. These claims, all of which preceded his
guilty plea, are not cognizable on appeal.
"When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to entry of
the plea." United States v. Bundy, 392 F.3d 641, 644 (4th Cir.
2004). The "guilty plea represents a break in the chain of
events which has preceded it in the criminal process." Tollett
v. Henderson, 411 U.S. 258, 267 (1973). Thus, the defendant
who has pled guilty "has no non-jurisdictional ground upon
which to attack that judgment except the inadequacy of the
plea," Bundy, 392 F.3d at 644-45, or the government’s "power
to bring any indictment at all," Broce, 488 U.S. at 575; see
United States v. Bluso, 519 F.2d 473, 474 (4th Cir. 1975) ("A
guilty plea is normally understood as a lid on the box, whatever is in it, not a platform from which to explore further possibilities."); see also Blackledge v. Perry, 417 U.S. 21, 29-30
(1974) ("[W]hen a criminal defendant enters a guilty plea, he
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may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea. Rather, a person complaining of such
antecedent constitutional violations is limited . . . to attacks on
the voluntary and intelligent nature of the guilty plea, through
proof that the advice received from counsel was not within the
range of competence demanded of attorneys in criminal
cases." (internal quotation marks and citations omitted)).
Relying on United States v. Hernandez, 203 F.3d 614 (9th
Cir. 2000), Moussaoui maintains that his alleged constitutional violations rendered his guilty plea involuntary. In Hernandez, the Ninth Circuit held that a district court’s error in
denying the defendant’s request to represent himself rendered
the defendant’s subsequent guilty plea involuntary. See id. at
626-27. In so doing, the court noted that the error at issue was
structural, meaning that it "undermine[d] the integrity of the
trial mechanism itself."11 Id. at 626. Thus, the court reasoned
that the refusal by the district court to allow the defendant to
represent himself left the defendant only with a choice "between pleading guilty and submitting to a trial the very structure of which would be unconstitutional." Id. at 626 (emphasis
omitted). Moussaoui argues that his guilty plea is invalid for
the same reason.
With all due respect, we are not persuaded by the analysis
in Hernandez. As noted above, a guilty plea is constitutionally
valid if it "represents a voluntary and intelligent choice among
the alternative courses of action open to the defendant."
Alford, 400 U.S. at 31. The Hernandez court’s conclusion that
the defendant’s guilty plea was involuntary was based on a
faulty premise, namely, that his only alternative was to submit
to an unconstitutional trial. This premise fails to account for
the fact that if the defendant proceeded to trial and was convicted, he could seek an appellate remedy for the constitu11An error that qualifies as "structural" is not subject to harmless-error
analysis. See Neder v. United States, 527 U.S. 1, 7 (1999).
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tional violations he alleged. See Bundy, 392 F.3d at 645 ("[A]
defendant might rationally choose to proceed to trial for the
sole purpose of preserving a pretrial issue for appellate
review."). Had Moussaoui been convicted after a trial, he, too,
could have sought to vindicate his claims on appeal. Thus, the
rulings Moussaoui now challenges, even if erroneous, did not
render his guilty plea involuntary.12
In sum, Moussaoui, having pled guilty, has waived all nonjurisdictional errors leading up to his conviction except those
affecting the adequacy of his plea. It is to those claims, affecting the adequacy of his plea, that we now turn.
B. The "Unknowing and Uncounselled" Challenge
Moussaoui’s challenge to the adequacy of his plea arises
out of the district court’s handling of the classified discovery
and the effect this had upon his guilty plea. Specifically,
12Moussaoui incorrectly maintains that the Supreme Court in United
States v. Dominguez Benitez, 542 U.S. 74 (2004), suggested that a guilty
plea is invalidated by a prior error if it is structural. Dominguez Benitez
described the showing that defendants must make to satisfy the
substantial-rights prong on plain-error review of alleged Rule 11 violations. Although the Court suggested the prong would be satisfied if Rule
11 violations were structural, see id. at 81, Rule 11 violations clearly relate
to the adequacy of a guilty plea, see United States v. Wood, 378 F.3d 342,
349 (4th Cir. 2004) (explaining that the district court’s plea colloquy with
a defendant is the proceeding that conclusively "establish[es] that the
defendant knowingly and voluntarily enters his plea"). Dominguez Benitez
did not suggest that an error not concerning a guilty plea’s adequacy could
invalidate the plea simply because the error was structural.
In fact, the notion that a structural error occurring prior to a guilty plea
invalidates the subsequent guilty plea would be at odds with the result in
Tollett v. Henderson, 411 U.S. 258 (1973), wherein the defendant sought
to invalidate his guilty plea on the basis that blacks were systematically
excluded from the grand jury that indicted him. Although the Supreme
Court has subsequently clarified that such exclusion would amount to
structural error, see Vasquez v. Hillery, 474 U.S. 254, 262-64 (1986), the
Tollett Court held that the defendant’s claim, even if true, would not invalidate his guilty plea. See Tollett, 411 U.S. at 266-68.
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Moussaoui asserts that the district court violated CIPA,13 and
that these violations resulted in a guilty plea that was neither
knowing nor properly counseled. The guilty plea was not
knowingly entered, Moussaoui argues, because the district
court and the Government denied him personal access to
material and exculpatory evidence during the discovery process, in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The guilty plea was not properly counseled, he argues,
because defense counsel, to whom the information had been
provided, were not allowed to discuss the substance of it with
him prior to his pleading guilty, in violation of Geders v.
United States, 425 U.S. 80 (1976).14
1. The CIPA Process
a.
Under Rule 16 of the Federal Rules of Criminal Procedure,
the Government must produce, among other things, items
"material to preparing the defense." Fed. R. Crim. P.
16(a)(1)(E)(i). However, "[a]t any time the court may, for
good cause, deny, restrict, or defer discovery or inspection, or
grant other appropriate relief," and "may permit a party to
show good cause by a written statement that the court will
inspect ex parte." Fed. R. Crim. P. 16(d). "‘[G]ood cause’
includes the protection of information vital to the national
security." United States v. Aref, 533 F.3d 72, 78 (2d Cir.
2008) (internal quotation marks omitted).
13In particular, Moussaoui asserts that the district court erred in allowing the Government to produce classified, documentary discovery to his
defense counsel in lieu of to him personally, and erred in allowing the
Government to produce classified summaries of highly classified reports
at issue in the prior appeal. He also asserts that the district court erred in
restricting communications with his counsel under the Protective Order.
14As noted earlier, Moussaoui’s constitutional claims under Brady and
Geders, as well as his claims that CIPA was violated, are barred by his
guilty plea. See Tollett, 411 U.S. at 267. Unlike the other pre-plea claims,
however, these claims also form the basis for his challenge to the adequacy of the plea itself, which is cognizable on appeal.
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"Originally enacted by Congress in an effort to combat the
growing problem of graymail, a practice whereby a criminal
defendant threatens to reveal classified information during the
course of his trial in the hope of forcing the government to
drop the charge against him," United States v. Abu Ali, 528
F.3d 210, 245 (4th Cir. 2008), CIPA provides procedures for
protecting classified information without running afoul of a
defendant’s right to a fair trial.15 Section 4 of CIPA governs
discovery of classified information by a defendant, and is the
most pertinent provision in Moussaoui’s challenge. It provides that:
[t]he court, upon a sufficient showing, may authorize
the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the
Federal Rules of Criminal Procedure, to substitute a
summary of the information for such classified documents, or to substitute a statement admitting relevant
facts that the classified information would tend to
prove. The court may permit the United States to
make a request for such authorization in the form of
a written statement to be inspected by the court
alone.
15Classified information includes "any information or material that has
been determined by the United States Government . . . to require protection against unauthorized disclosure for reasons of national security." 18
U.S.C.A. app. 3, § 1. "Upon motion of the United States, the court shall
issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case."
18 U.S.C.A. app. 3, § 3 (emphasis added). The Government’s right to protect such information is absolute, and we do not second guess such determinations. See Abu Ali, 528 F.3d at 253 ("’[W]e have no authority[ ] to
consider judgments made by the Attorney General concerning the extent
to which the information . . . implicates national security. Similarly, neither the prosecutorial decisions . . . nor the possibility of graymail . . .
comes within our purview.’" (quoting United States v. Fernandez, 913
F.2d 148, 154 (4th Cir. 1990)).
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18 U.S.C.A. app. 3, § 4; see In re Terrorist Bombings of U.S.
Embassies in E. Afr., 552 F.3d 93, 121 (2d Cir. 2008) (CIPA
§ 4’s "provisions on discovery . . . complement those of Rule
16(d)" by "giv[ing] trial judges adequate guidance to protect
against the unauthorized disclosure of classified information
in the custody of the federal courts." (internal quotation marks
omitted)). Section 4 "allows the district court to authorize the
government to redact information from classified documents
before providing such documents to the defendant during pretrial discovery." United States v. Moussaoui, 333 F.3d 509,
514 n.6 (4th Cir. 2003) ("Moussaoui I) (emphasis added); see
also Aref, 533 F.3d at 78 (CIPA § 4 "clarifies [the] district
courts’ power under [Rule] 16(d)(1) to issue protective orders
denying or restricting discovery for good cause."); United
States v. Smith, 780 F.2d 1102, 1105 n.7 (4th Cir. 1985) (en
banc) (noting that CIPA § 4 "provides a procedure by which
the court can delete portions of classified documents to be discovered by a defendant. Substitutions are also permitted under
certain circumstances.").
Sections 5 and 6 of CIPA "establish[ ] a pretrial procedure
for ruling upon the admissibility of classified information."
Smith, 780 F.2d at 1105. The defendant must notify the government and the court of classified information he expects to
use, and the defendant is prohibited from "disclos[ing] any
information known or believed to be classified . . . until the
United States has been afforded a reasonable opportunity to
seek a determination pursuant to the procedure set forth in
section 6 of [CIPA]." 18 U.S.C.A. app. 3, § 5. "Once the
defendant gives notice of his intention to introduce classified
information, the United States may request a [section 6] hearing at which the court shall determine the ‘use, relevance, or
admissibility of classified information that would otherwise
be made during the trial or pretrial proceeding.’" Smith, 780
F.2d at 1105 (quoting 18 U.S.C.A. app. 3, § 6(a)).16 If the
16This hearing must be conducted in camera if the government certifies
"that a public proceeding may result in the disclosure of classified inforUNITED STATES v. MOUSSAOUI 31
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court authorizes "the disclosure of specific classified information under the procedures established by [section 6], the
United States may move that, in lieu of the disclosure of such
specific classified information," the court approve the use of
a substitution in the form of "a statement admitting relevant
facts that the specific classified information would tend to
prove," or "a summary of the specific classified information."
18 U.S.C.A. app. 3, § 6(c)(1); see also Smith, 780 F.2d at
1105. "The court shall grant such a motion of the United
States if it finds that the statement or summary will provide
the defendant with substantially the same ability to make his
defense as would disclosure of the specific classified information." 18 U.S.C.A. app. 3, § 6(c)(1) (emphasis added).17
b.
The parties in this case were aware from the outset that
voluminous classified information pertaining to al Qaeda and
the 9/11 attacks would require special handling under CIPA.
In January 2002, the district court issued the Protective
Order, pursuant to Rule 16(d)(1) and CIPA § 3. Under the
Protective Order, classified information would be produced
by the Government only to persons possessing the requisite
security clearance, a category that included Moussaoui’s
appointed counsel but excluded Moussaoui. All other "permation." 18 U.S.C.A. app. 3 § 6(a). The government must also "provide
the defendant with notice of the classified information that is at issue." 18
U.S.C.A. app. 3, § 6(b)(1). If the classified information has been produced
to the defendant, it must be specifically identified. If it has not been made
available to the defendant, it "may be described by generic category, in
such form as the court may approve." Id.
17Section 6(c) hearings must also be conducted in camera at the government’s request, and the government may require that the court examine in
camera and ex parte "an affidavit of the Attorney General certifying that
disclosure of classified information would cause identifiable damage to
the national security of the United States and explaining the basis for the
classification of such information." 18 U.S.C.A. app. 3, § 6(c).
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son[s] whose assistance the defense reasonably require[d]
[could] only have access to classified information . . . after
obtaining from the Court—with prior notice to the
government—an approval for access to the appropriate level
of classification on a need to know basis." J.A. 97-98.
Defense counsel were also prohibited from "disclos[ing] such
information or documents to [Moussaoui] without prior concurrence of counsel for the government, or, absent such concurrence, prior approval of the Court." J.A. 104.
The parties agree that the effect of the Protective Order was
that Moussaoui’s defense counsel would have access to classified information produced under CIPA § 4, but could not
show or discuss the contents of the material with Moussaoui
who, as an admitted al Qaeda terrorist already detained on
immigration violations, would not be granted the necessary
clearance. The Protective Order, however, did not preclude
Moussaoui from ever having access to material or exculpatory
evidence. On the contrary, Moussaoui would be given personal access to classified information "if such access should
be determined by the Court to be necessary." J.A. 101.
The parties agreed upon a schedule for handling the classified information issues, providing deadlines for the filing of
section 5 designations by the defense and section 6 requests
by the Government. The final section 6 hearing to resolve all
remaining classified issues was to be completed several weeks
prior to trial.
In June 2002, Moussaoui’s motion to proceed pro se was
granted, complicating the manner in which the district court
and counsel had intended to handle the classified information
produced in discovery. Because of the complexity of the case,
the district court opted to exercise its discretion to appoint
standby counsel to assist the court and Moussaoui with these
matters. See McKaskle v. Wiggins, 465 U.S. 168, 178-79
(1984); United States v. Gallop, 838 F.2d 105, 110 (4th Cir.
1988). In September 2002, the handling of classified informaUNITED STATES v. MOUSSAOUI 33
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tion was further complicated when Moussaoui began seeking
access to the ECWs. Faced with an issue of first impression,
the court issued a new set of discovery orders protecting certain classified information pertaining to these witnesses pending decisions on the issue of whether Moussaoui would be
granted access to the witnesses for Rule 15 depositions or
whether suitable substitutions could be prepared under CIPA
§ 6(c).
After an interlocutory appeal from the district court’s order
granting access to the ECWs, we initially remanded the matter
to allow the Government to propose CIPA § 6(c) substitutions
for the ECWs testimony and directed the district court to
determine whether the proposed substitutions "‘w[ould] provide the defendant with substantially the same ability to make
his defense as would’ the disclosure ordered by the district
court." United States v. Moussaoui, No. 03-4162, 2003 WL
1889018 (4th Cir. Apr. 14, 2008) (unpublished order) (quoting CIPA § 6(c)(1)).
The Government’s proposed CIPA § 6(c) substitutions for
the testimony of the ECWs were thereafter taken from
answers to questions recorded in "highly classified reports
. . . intended for use in the military and intelligence communities" and not "with this litigation in mind." Moussaoui II, 382
F.3d at 458 n.5. "Portions of the[se] reports concerning Moussaoui and the September 11 attacks [were] excerpted and set
forth in documents prepared for purposes of this litigation."
Id. These documents were "deemed summaries by the parties
and the district court." Id. (internal quotation marks and alterations omitted). The summaries were then "provided to
defense counsel in conformance with the Government’s obligations under Brady v. Maryland, 373 U.S. 83 (1963). The
proposed substitutions [were] based on the . . . summaries."
Id. (internal quotation marks and alterations omitted). The
Government presented these highly classified reports, along
with the summaries for comparison, to the district court ex
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parte. The summaries themselves remained classified pending
the appeal process but were produced to defense counsel.
Upon its ex parte review, the district court was impressed
with the accuracy of the classified summaries, see id. at 478
n.30, but felt that the classified reports that led to the proposed substitutions were unreliable and that the substitutions
were also flawed, see id. at 459. Thus, the district court
ordered the Government to produce the witnesses for Rule 15
depositions. When the Government refused to produce the
witnesses, the district court ruled that "Moussaoui had adequately demonstrated that the witnesses could provide testimony that, if believed, might preclude a jury from finding
Moussaoui eligible for the death penalty" and dismissed the
death notice. Id. at 459. "[B]ecause proof of Moussaoui’s
involvement in the September 11 attacks was not necessary to
a conviction, and because the witnesses’ testimony, if
believed, could exonerate Moussaoui of involvement in those
attacks," the district court also ruled the Government would
be prohibited "from making any argument, or offering any
evidence, suggesting that [Moussaoui] had any involvement
in, or knowledge of, the September 11 attacks." Id. at 459-60
(internal quotation marks omitted).
On September 13, 2004, we issued our decision affirming
the district court’s conclusion "that the [ECWs] could provide
material, favorable testimony on Moussaoui’s behalf." Moussaoui II, 382 F.3d at 456. With regard to the substitutions, we
agreed that they were inadequate but rejected the district
court’s implicit conclusion that no adequate substitutions
could be crafted because the classified summaries were inherently inadequate. See id. at 478. In particular, we noted the
Government’s "profound interest in obtaining accurate information from the witnesses and in reporting that information
accurately to those who can use it to prevent acts of terrorism
and to capture other al Qaeda operatives, . . . considerations
[that] provide[ed] sufficient indicia of reliability to alleviate
the concerns of the district court." Id. We found that the clasUNITED STATES v. MOUSSAOUI 35
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sified summaries did "provide an adequate basis for the creation of" substitutions, id. at 479, and "remand[ed] with
instructions for the district court and the parties to craft substitutions under certain guidelines." Id. at 457.
Accordingly, when we remanded to the district court in the
previous appeal, the CIPA process was well underway, but
incomplete. The classified, exculpatory information had been
produced by the Government to defense counsel pursuant to
the terms of the Protective Order. In accordance with our
holding that Moussaoui was entitled to such evidence in a
suitably unclassified form for use at trial, the district court
was poised to finalize this process, with the input and assistance of counsel for both parties and Moussaoui, when Moussaoui notified the district court of his desire to enter an
unconditional plea of guilty to all counts.
2. The Brady Claim
Moussaoui first complains that the Protective Order issued
under CIPA allowed the Government to deprive him of exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963).
In particular, Moussaoui asserts that he was deprived of personal access to the statements of multiple individuals which
could have demonstrated that he was not slated to participate
in the 9/11 attacks and that he was slated to participate, if at
all, in the second wave of attacks, which never occurred.
Moussaoui contends that this evidence was exculpatory
because it could have demonstrated that he was not involved
in the 9/11 terrorist attacks at all.
In Brady, the Supreme Court held "that the suppression by
the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution." 373 U.S. at 87. In order to
prevail on a true Brady claim, however, it is not enough simply to say that favorable evidence was withheld. The accused
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must prove (1) that the "evidence at issue [is] favorable to the
accused, either because it is exculpatory, or because it is
impeaching"; (2) that the "evidence [was] suppressed by the
[government], either willfully or inadvertently"; and (3) that
the evidence was material to the defense, i.e., "prejudice must
have ensued." Strickler v. Greene, 527 U.S. 263, 281-82
(1999); see also Giglio v. United States, 405 U.S. 150, 154-55
(1972) (including impeachment evidence within the scope of
materials that Brady requires prosecutors to disclose).
The Brady right, however, is a trial right. It requires a prosecutor to disclose evidence favorable to the defense if the evidence is material to either guilt or punishment, and exists to
preserve the fairness of a trial verdict and to minimize the
chance that an innocent person would be found guilty. See
Brady, 373 U.S. at 87; United States v. Ruiz, 536 U.S. 622,
628 (2002) (noting that Brady rights are provided as part of
the Constitution’s "‘fair trial’ guarantee"); id. at 634 ("The
principle supporting Brady was ‘avoidance of an unfair trial
to the accused.’") (Thomas, J., concurring) (quoting Brady,
373 U.S. at 87).
When a defendant pleads guilty, those concerns are almost
completely eliminated because his guilt is admitted. See
Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam)
(explaining that a defendant’s admission of guilt in a guilty
plea is "so reliable that, where voluntary and intelligent, it
quite validly removes the issue of factual guilt from the case")
(first emphasis added); Matthew v. Johnson, 201 F.3d 353,
361 (5th Cir. 2000) (explaining that "[t]he Brady rule’s focus
on protecting the integrity of trials suggests that where no trial
is to occur, there may be no constitutional violation"); Orman
v. Cain, 228 F.3d 616, 617 (5th Cir. 2000) ("Brady requires
a prosecutor to disclose exculpatory evidence for purposes of
ensuring a fair trial, a concern that is absent when a defendant
waives trial and pleads guilty.").
In Ruiz, the Supreme Court considered whether a guilty
plea is invalidated by a prosecutor’s failure to provide exculUNITED STATES v. MOUSSAOUI 37
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patory impeachment information to a defendant prior to the
plea. See 536 U.S. at 625. In holding that it is not, the Court
recognized that due process considerations do not require
prosecutors to disclose all information that might be of use to
a defendant in deciding whether to plead guilty. See id. at
629-30. The Court noted that it had permitted courts to accept
guilty pleas where the defendant lacked knowledge of many
different circumstances, including the strength of the government’s case. See id. at 630-31. The Court also reasoned that
the value to the defendant of requiring disclosure of impeachment evidence was relatively low compared to the substantial
interference that such a requirement could cause to ongoing
criminal investigations and the protection of government witnesses. See id. at 631-32.
To date, the Supreme Court has not addressed the question
of whether the Brady right to exculpatory information, in contrast to impeachment information, might be extended to the
guilty plea context. Compare United States v. Conroy, 567
F.3d 174, 179 (5th Cir. 2009) (per curiam) (rejecting claim
that the Supreme Court’s rejection of a Brady challenge in
Ruiz based upon "impeachment evidence implie[d] that exculpatory evidence is different and must be turned over before
entry of a plea"), with McCann v. Mangialardi, 337 F.3d 782,
787-88 (7th Cir. 2003) (stating that "[t]he Supreme Court’s
decision in Ruiz strongly suggests that a Brady-type disclosure might be required" in circumstances where the prosecution "ha[s] knowledge of a criminal defendant’s factual
innocence but fail[s] to disclose such information to a defendant before he enters into a guilty plea."); Matthew, 201 F.3d
at 364 (considering question of whether a pre-plea nondisclosure of exculpatory evidence might render a plea invalid
under the Due Process Clause irrespective of Brady). In Jones
v. Cooper, 311 F.3d 306, 315 n.5 (4th Cir. 2002), however,
we held that Ruiz foreclosed any claim by the defendant that
the prosecutor’s failure to disclose information potentially relevant as mitigation evidence in the death-penalty phase of
defendant’s trial served to invalidate his guilty plea.
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Whether our decision in Jones is sufficient to dispose of the
claim before us here is a close one. We need not resolve it,
however, because even if we were to assume that the prosecution’s failure to disclose material exculpatory evidence at the
plea stage could result in an unknowing plea in certain narrow
circumstances, Moussaoui cannot demonstrate that his guilty
plea was entered unknowingly for this reason.
The inquiry in any challenge to a guilty plea is whether the
plea was entered voluntarily, and whether the related "waiver
of [the defendant’s] right to receive from prosecutors exculpatory . . . material" was made "‘knowing[ly], intelligent[ly],
[and] with sufficient awareness of the relevant circumstances
and likely consequences.’" Ruiz, 536 U.S. at 628-29 (quoting
Brady, 397 U.S. at 748) (alterations in original). In short,
Moussaoui fails to demonstrate that his waiver of the purported right to exculpatory evidence prior to pleading guilty
was not made knowingly and intelligently, with sufficient
awareness of the relevant circumstances and likely consequences.
First, with regard to the documentary classified information, Moussaoui when he first attempted to plead guilty in
2002 was advised that there was "exculpatory evidence which
ha[d] not been provided to him and that his plea of guilty may
mean that he might never have the benefit of such information
to use to contest his guilt." J.A. 866. A month later, the district court denied Moussaoui’s pro se motion for access to
classified evidence, advising him that the process of reviewing the classified discovery was ongoing, that the United
States had declassified and was continuing to declassify documents, and that "[p]resumably, [he] has had or will have
access to the declassified discovery so long as it is not subject
to a separate protective order." J.A. 1126.
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Second, with regard to the classified information pertaining
to the ECWs, Moussaoui had personally sought access to the
ECWs because he believed they might possess helpful information. From then until remand from our decision in Moussaoui II, the district court and this court confirmed his belief,
making it clear that the ECWs could indeed offer material,
exculpatory evidence on his behalf, but ruling that Moussaoui’s constitutional right to this evidence could be met with
appropriate substitutions under CIPA § 6(c). In doing so, we
even went so far as to explain why the ECW statements were
exculpatory and we remanded for the preparation of substitutions with Moussaoui’s assistance and input. See Moussaoui
II, 382 F.3d at 456 (affirming the district court’s conclusion
"that the [ECWs] could provide material, favorable testimony
on Moussaoui’s behalf"); id. at 473 (noting, among other
things, that the witness statements "tend[ed] to exculpate
Moussaoui [as they] undermine[d] the theory . . . that Moussaoui was to pilot a fifth plane into the White House" and
were "consistent with Moussaoui’s claim that he was to be
part of a post-September 11 operation"); id. at 474 (noting
that the statements indicated that "Moussaoui’s operational
knowledge was limited, a fact that is clearly of exculpatory
value as to both guilt and penalty" and "support[ed] Moussaoui’s contention that he was not involved in the September
11 attacks").
Thus, unlike in the traditional Brady context, or even those
cases relied upon by Moussaoui for a Brady-type pre-plea
right to exculpatory evidence, the Government did not suppress favorable evidence from the defense, much less evidence of factual innocence. On the contrary, the Government
produced the evidence, in accordance with the Protective
Order, to defense counsel pending the final CIPA § 6(a) and
§ 6(c) determinations on remand and Moussaoui was aware
that this evidence had been so produced. See Moussaoui II,
382 F.3d at 458 n.5, 462 n.14 (noting that the classified summaries had "been provided to defense counsel in conformance
with the Government’s obligations under Brady" and that
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there was "no evidence before us that the Government possess[ed] exculpatory material that ha[d] not been disclosed to
the defense"). When the Supreme Court denied review of our
opinion and the case was returned to the district court, Moussaoui was well aware that there was classified, exculpatory
evidence yet to be produced to him personally and he knew
why the material was exculpatory. Rather than wait for the
process to be completed, Moussaoui made the strategic decision to plead guilty immediately. He even went so far as to
confirm with the district court that, because the substitutions
for the ECWs testimony had not yet been completed, he
would retain the right to challenge the final substitutions on
appeal if he received the death penalty.
"[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands
the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may
not know the specific detailed consequences of invoking it."
Ruiz, 536 U.S. at 629. Under the circumstances, we have no
trouble concluding that Moussaoui entered his guilty plea
knowingly, and with sufficient awareness of the relevant circumstances and likely consequences of his decision, and that
the district court did not err in accepting his plea prior to completion of the CIPA process. Clearly, the plea "represent[ed]
a voluntary and intelligent choice among the alternative
courses of action open to [him]." Alford, 400 U.S. at 31.18
18Finally, we note that the CIPA process actually continued after the
guilty plea in preparation for the sentencing proceeding, and the exculpatory, classified information was made available for Moussaoui’s use in an
appropriate form. Moussaoui thereafter testified, confirmed his guilt to the
offenses as charged, and contradicted the supposed exculpatory statements
of the ECWs as they related to his intended participation in the 9/11
strikes. The Brady material that Moussaoui claims he was entitled to preplea was either produced post-plea or was cumulative to evidence that was
produced. Yet, Moussaoui did not seek to withdraw his guilty plea until
after he had successfully defended against the sentence of death. Evidence
is material, and prejudice ensues for purposes of Brady, "only if there is
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3. The "Advice of Counsel" Claim
For similar reasons, we also reject Moussaoui’s claim that
the district court constructively denied him his right to counsel by restricting defense counsel’s ability to discuss the classified exculpatory evidence with him prior to his acceptance
of the guilty plea, rendering his plea invalid.
"Since Gideon v. Wainwright, 372 U.S. 335 (1963), it has
been clear that a guilty plea to a felony charge entered without
counsel and without a waiver of counsel is invalid." Brady,
397 U.S. at 748 n.6; see Broce, 488 U.S. at 569 ("[W]hen the
judgment of conviction upon a guilty plea has become final
and the offender seeks to reopen the proceeding, the inquiry
is ordinarily confined to whether the underlying plea was both
counseled and voluntary."); see McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970) ("[A] defendant pleading guilty to
a felony charge has a federal right to the assistance of counsel."). The waiver of constitutional rights accompanying a
guilty plea has to be a "knowing, intelligent act[ ] done with
sufficient awareness of the relevant circumstances and likely
consequences," Brady, 397 U.S. at 748, and "an intelligent
assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney," id.
at 748 n.6.
Where a defendant alleges ineffective assistance of counsel,
he must ordinarily "demonstrate that counsel performed deficiently and that, but for counsel’s errors, the defendant would
not have pled guilty and would instead have insisted on proceeding to trial." United States v. Faris, 388 F.3d 452, 459
a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different." United
States v. Bagley, 473 U.S. 667, 682 (1985). Because Moussaoui has also
failed to demonstrate a reasonable probability that disclosure of the classified information would have altered his decision to plead guilty, his Brady
claim would also fail on the merits.
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(4th Cir. 2004). "This standard derives from the test for ineffective assistance of counsel set forth in Hill v. Lockhart, 474
U.S. 52, 58-59 (1985), which relied in turn on the standards
announced in Strickland v. Washington, 466 U.S. 668, 687
(1984)." Id. at 459 n.4.
However, "[i]n unusual circumstances, a defendant may
obtain reversal of his conviction based on the inadequacy of
counsel even in the absence of a showing that would satisfy
Hill or Strickland." Id. (citing United States v. Cronic, 466
U.S. 648, 659-60 (1984)). Such a constructive denial of counsel results from circumstances where "the performance of
counsel [is] so inadequate that, in effect, no assistance of
counsel is provided" at all. Cronic, 466 U.S. at 654 n.11; see
Lenz v. Washington, 444 F.3d 295, 303-04 (4th Cir. 2006)
(stating that a constructive denial of counsel "arises only
when a lawyer entirely fails to subject the prosecution’s case
to meaningful adversarial testing, and thus might as well be
absent from the proceedings") (internal quotation marks and
citations omitted); Childress v. Johnson, 103 F.3d 1221, 1228
(5th Cir. 1997) (applying Cronic to the guilty plea context).19
Moussaoui contends that the Protective Order constructively denied him counsel under Cronic because it prohibited
counsel from discussing the substance of the exculpatory evidence with him prior to his guilty plea. See Geders, 425 U.S.
at 91 (holding that trial court’s order barring defendant from
consulting with defense counsel during an overnight recess
deprived defendant of his Sixth Amendment right to counsel).
19Moussaoui does not argue that counsel’s performance was deficient or
that he was prejudiced by it. There was no requirement that the Government produce the classified, exculpatory evidence to defense counsel in
the pretrial process under CIPA § 4 in the first instance. In addition,
Moussaoui had categorically rejected all defense counsel as his enemy and
made it clear that he was uninterested in communicating with his counsel
or following their advice.
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To the extent we would adopt some Cronic-like standard
for guilty pleas, however, Moussaoui falls well short of demonstrating that his guilty plea was entered under circumstances amounting to "no assistance of counsel" at all. Cronic,
466 U.S. at 654 n.11. In fact, Moussaoui cannot even demonstrate that his plea was uncounselled on the matter of exculpatory evidence.
First, the restrictions on counsel’s ability to communicate
with Moussaoui regarding pretrial discovery matters were not
so onerous as to render counsel effectively absent during the
guilty plea proceeding. The right to communicate with counsel at any point in the proceedings is not absolute. "[I]n certain contexts there can be an important need to protect a
countervailing interest, which may justify a restriction on
defendant’s ability to consult with his attorney if the restriction is carefully tailored and limited." In re Terrorist Bombings, 552 F.3d at 127 (internal quotation marks omitted); see
United States v. Hung, 667 F.2d 1105, 1107-08 (4th Cir.
1981) (per curiam) (holding that protective order prohibiting
defense counsel from disclosing contents of certain documents did not violate defendant’s Fifth or Sixth Amendment
rights where trial court allowed defense counsel to review
Jencks Act material to assist in determining whether material
should be disclosed, but precluded counsel from consulting
with defendant about the material); United States v. Bell, 464
F.2d 667, 671-72 (2d Cir. 1972) (counsel barred from disclosing sensitive airport hijacker profiling system); cf. Morgan v.
Bennett, 204 F.3d 360, 368 (2d Cir. 2000) (barring counsel
from disclosing identity of a cooperating witness to the defendant); United States v. Herrero, 893 F.2d 1512, 1526-27 (7th
Cir. 1990) (barring counsel from revealing name of a confidential informant to the defendant).
That principle applies in this case. The Government’s interest in protecting the classified information during the discovery and appeal process justified the limited restrictions upon
Moussaoui’s right to communicate with counsel pending
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completion of the CIPA process and preparation of unclassified substitutions. Cf. Abu Ali, 528 F.3d at 254 ("A defendant
and his counsel, if lacking in the requisite security clearance,
must be excluded from hearings that determine what classified
information is material and whether substitutions crafted by
the government suffice to provide the defendant adequate
means of presenting a defense and obtaining a fair trial.")
(emphasis added).
Second, Moussaoui has failed to demonstrate that he was
completely denied counsel’s advice regarding the evidence at
issue, or that counsel’s advice was so lacking that it amounted
to none at all. As discussed previously, Moussaoui knew that
the exculpatory information existed and had been produced to
his counsel, knew the substance of the information, and knew
that the process for evaluating and declassifying that information was ongoing. He was also well aware that the process
would be completed upon our remand to the district court
from the previous appeal. In any event, the Protective Order
did not preclude defense counsel from advising Moussaoui
that the evidence existed, as they did prior to the July 2002
guilty plea attempt, or from providing advice on how the classification review process would be completed. In fact, it
appears from the record that Yamamoto and Moussaoui did
discuss the issue, but Moussaoui disagreed with counsel about
the effect of his plea upon the substitution process and Moussaoui made the informed and strategic decision to plead guilty
before the process was completed. For its part, the district
court employed a cautious manner of dealing with Moussaoui’s guilty plea. At the ex parte plea proceeding, the court
ensured that Moussaoui had received the advice of his counsel
on these matters. Moussaoui made it clear at this hearing and
the public Rule 11 hearing that he had met with his attorneys,
who had advised that he not plead guilty, but that he was
freely and voluntarily choosing to reject that advice.
While a guilty plea must be counseled in the sense that the
defendant has a right to effective assistance of counsel in
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making the decision, in the end it is the "defendant [who] has
‘the ultimate authority’ to determine ‘whether to plead
guilty.’" Florida v. Nixon, 543 U.S. 175, 187 (2004) (quoting
Jones v. Barnes, 463 U.S. 745, 751 (1983)); see also Miller
v. Angliker, 848 F.2d 1312, 1322 (2d Cir. 1988) ("[T]he right
to decide whether to plead guilty . . . belongs to the defendant,
not to counsel."); cf. Roe v. Flores-Ortega, 528 U.S. 470, 485
(2000) ("Like the decision whether to appeal, the decision
whether to plead guilty (i.e., waive trial) rested with the
defendant."). It is counsel’s duty to ensure that the defendant
is sufficiently aware of the facts and circumstances surrounding the plea so that the defendant can make a reasonably
informed decision. Here, Moussaoui has failed to demonstrate
the type of complete denial of counsel rising to the level of
a constructive denial of counsel under the Sixth Amendment.
On the contrary, it appears that counsel was determined to
effectively represent Moussaoui, and did so, in spite of Moussaoui’s uncooperative behavior and indeed belligerence
towards them.
III. Failure to Hold Competency Hearing
Moussaoui’s next claim is that the district court erred when
concluding that his plea was knowing and voluntary because
the court failed to hold a competency hearing before accepting his plea.
"Before a court may accept a guilty plea, it must ensure that
the defendant is competent to enter the plea." United States v.
Damon, 191 F.3d 561, 564 (4th Cir. 1999). The standard for
competence to plead guilty is the same as that for competence
to stand trial: whether the defendant "has sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding – and whether he has a rational as well
as factual understanding of the proceedings against him."
Dusky v. United States, 362 U.S. 402, 402 (1960) (per
curiam); Godinez v. Moran, 509 U.S. 389, 402 (1993) (applying standard to guilty plea context).
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The district court should hold a competency hearing when
it has reasonable cause to believe that a defendant may suffer
from a mental disease or defect that interferes with his ability
to understand the nature and consequences of entering a plea
of guilty. See 18 U.S.C.A. § 4241(a) (West Supp. 2008). "To
prevail, the defendant must establish that the trial court
ignored facts raising a bona fide doubt regarding [his] competency to stand trial." Walton v. Angelone, 321 F.3d 442, 459
(4th Cir. 2003) (internal quotation marks omitted). The district court should examine "all of the record evidence pertaining to the defendant’s competence, including: (1) any history
of irrational behavior; (2) the defendant’s demeanor at and
prior to sentencing; and (3) prior medical opinions on competency." United States v. General, 278 F.3d 389, 397 (4th Cir.
2002). However, "there are no fixed or immutable signs
which invariably indicate the need for further inquiry to determine fitness to proceed." Walton, 321 F.2d at 459 (internal
quotations omitted). A district court’s decisions on competency, as well as its denial of requests for further competency
evaluations, are reviewed for an abuse of discretion. See
United States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007);
United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
Moussaoui’s counsel first requested a competency evaluation in April 2002, in connection with Moussaoui’s request to
proceed pro se. Counsel acknowledged that they had not
planned to ask for an evaluation for purposes of the defense
but felt it was warranted for purposes of the request to proceed pro se. The district court observed that Moussaoui was
"obviously a very smart" man, J.A. 262, and "appear[ed] to
know and understand what [he was] doing," J.A. 263. However, the district court agreed to order an evaluation "out of
an abundance of caution" and held Moussaoui’s motion to
proceed pro se in abeyance pending the results. J.A. 514.
Dr. Raymond Patterson was appointed to perform the competency evaluation. When Moussaoui refused to cooperate,
the district court advised Moussaoui that his refusal was
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"merely frustrating his own goal of representing himself" and
that "his meeting with Dr. Patterson [was] necessary before
any decision [could] be made on his pending motion." 2 Supp.
J.A. 11. Moussaoui was also advised that "[i]f [he] continue[d] to refuse to meet with Dr. Patterson, he may be sent to
the Federal Correctional Center at Butner, North Carolina, the
federal facility specializing in forensic psychiatric evaluations," for evaluation. 2 Supp. J.A. 11. Moussaoui thereafter
agreed to an interview with Dr. Patterson.
Dr. Patterson concluded that "there [did] not appear to be
a history or current symptoms consistent with a mental disease or defect that would interfere with [Moussaoui’s] voluntary, intelligent, and knowing appreciation of the potential
consequences of waiving counsel." J.A. 5758. Defense counsel retained two mental health experts, neither of whom met
with or personally interacted with Moussaoui, who presented
contrary opinions based upon reports of a family history of
mental illness, a report that Moussaoui had been deemed ineligible for military service in France because of psychiatric
issues noted during his medical examination, Moussaoui’s pro
se filings, and Moussaoui’s solitary confinement. The defense
experts also critiqued Dr. Patterson’s conclusions and opined
that further evaluation was needed.
On June 13, 2002, the district court reviewed the mental
health reports and denied defense counsel’s request for further
evaluations of Moussaoui, noting the following:
[I]t was out of an abundance of caution that I
decided to have the mental evaluation performed of
Mr. Moussaoui, because although his style, his writing style may be a bit more dramatic that would a
lawyer’s style be, . . . , Mr. Moussaoui does come
from a different culture where things are done differently than we, and he is, in fact, in a much smaller
section of that culture than even that culture itself as
a whole. Cultural differences may appear irrational
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to different cultures. It doesn’t mean the person is
insane from a psychological standpoint. I think it’s
. . . very significant that the day-to-day observations
of the people in the Alexandria Jail consistently
negate any question about there being any serious
mental illness or disease from Mr. Moussaoui.
J.A. 514. The district court also considered the potential
impact of solitary confinement but noted that Moussaoui had
been dressed appropriately with proper hygiene when
observed by others and that the jailers had provided no evidence of decompensation caused by the restrictions. Additionally, the court noted, "I’ve certainly seen Mr. Moussaoui now
two or three times in court and read all of his papers. And as
I said, I don’t see any basis to prolong this issue. I am comfortable in deciding the competency issue based upon the
quantum of information that is before me." J.A. 516. Among
other things, the court also noted that Moussaoui understood
and complied when he was informed that he might be sent to
Butner for a competency evaluation if he did not cooperate
with Dr. Patterson. The court ruled that Moussaoui had "sufficient present ability to consult with his attorneys with a reasonable degree of rational understanding and rationally
functioning understanding of the proceedings against him,"
and that he was competent to proceed pro se under the Dusky
standard. J.A. 518.
On several occasions over the next four years, the district
court addressed renewed challenges to Moussaoui’s competency, each time in conjunction with proceedings in which the
court personally observed and interacted with Moussaoui.
In July 2002, when Moussaoui first decided to plead guilty,
defense counsel again raised the question of his competency
to do so and submitted additional reports of the two defense
experts, along with a third expert. Counsel also requested that
the district court order access to Moussaoui for themselves
and a mental health expert. The district court ruled that there
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was no new evidence to support a claim that Moussaoui was
not competent and that forcing Moussaoui to receive standby
counsel and their mental health expert would deprive Moussaoui of the limited privacy to which he had insisted and further damage the relationship between Moussaoui and defense
counsel. At the Rule 11 hearing, the district court ruled as follows:
I have carefully considered the materials that were
submitted by standby defense counsel as well as
their doctor reports, but I am satisfied that Mr.
Moussaoui is not presently suffering from a mental
defect or disease of such a degree as to render him
incompetent to represent himself or, assuming he
answers the questions appropriately, to enter a knowing and voluntary plea of guilty to any one or all six
of the charges. I am particularly impressed with the
fact that although Mr. Moussaoui had filed numerous
repetitive motions, at the hearing last week, when I
advised him that he was not to file any more repetitive motions and if he did so, he might lose his pro
se status, Mr. Moussaoui obviously understood the
Court’s admonition, because we have not received a
single writing from him in a week, which is a record.
But that indicates to the Court that Mr. Moussaoui is
perfectly capable of understanding the Court’s directions, and when he chooses to, he can follow those
directions. That was similar to earlier in the case,
when he was refusing to meet with Dr. Patterson,
and I warned him in an order that continued refusal
would result in the Court not being able to decide his
pro se status. He thereafter met with Dr. Patterson.
So although the defendant’s pleadings are somewhat
confrontational and somewhat unusual, they do not
give the Court sufficient basis to make any kind of
a finding that this man is not competent to go forward with a guilty plea if that is his desire, and there
clearly is no basis in this record at this time to con52 UNITED STATES v. MOUSSAOUI
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tinue or postpone these proceedings for a custodial,
for a mental health forensic evaluation.
J.A. 993-94.
When Moussaoui pled guilty in April 2005, Moussaoui’s
counsel again challenged entry of the plea without further
competency evaluations but did not ask for a full evaluation
at Butner. The district court again rejected the challenge, reiterating that:
despite the fact that we may disagree about things,
this defendant has always struck this Court as articulate, intelligent, fully understanding the proceedings,
and although his world view may be significantly
different from ours and therefore at times perhaps
difficult to understand, in my view, that does not . . .
make a basis for arguing that he is incompetent.
2 Supp. J.A. 51. In addition, Yamamoto, the only defense
counsel with whom Moussaoui would communicate, did not
directly call into question Moussaoui’s competency to plead
guilty. Yamamoto stated that his "discussions with [Moussaoui had] been calm, rational. He knows what we’re talking
about. All that – those things are, are as the Court indicates.
Whether or not there’s some . . . mental health issues other
than his ability to relate to me, I don’t know." 2 Supp. J.A. 55.
The district court also rejected the claim that Moussaoui’s
confinement had affected his ability to proceed, noting that
"any human being locked up under the conditions in which he
has been housed would naturally at times [get] frustrated and
angry. That again does not equate to incompetence." 2 Supp.
J.A. 51. The district court was satisfied that Moussaoui was
competent to enter a guilty plea and scheduled the Rule 11
proceeding.
At the public Rule 11 proceeding, the district court noted
its previous determination, adding that it was "fully satisfied
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that Mr. Moussaoui is completely competent to enter his
guilty pleas today. The defendant has acted against the advice
of his counsel, but he has clearly exhibited both today and
earlier this week a complete understanding of the ramifications of his guilty pleas." J.A. 1435; see also 2 Supp. J.A. 67
(noting that "[a] defendant in our system has an absolute right
to reject [advice of counsel]" and "[i]t does not make him
incompetent [or] unwise."). Yamamoto confirmed that Moussaoui, in discussing the plea, had "responded appropriately
when I’ve spoken to him. He has had disagreements with me
with respect to certain items. Those disagreements were
appropriate disagreements." J.A. 1434.
Given this extensive record, we find no abuse of discretion
in the district court’s determination that Moussaoui was competent to proceed with his guilty plea and that further evaluations were unnecessary. The district court had the benefit of
multiple reports of evaluating and consulting mental health
specialists regarding Moussaoui’s competency to proceed
over the years and, at the time of the plea, Yamamoto confirmed that Moussaoui’s interactions with him had been calm,
rational, and appropriate. Most compelling, however, is that
the district court had the unique benefit of extensive personal
interactions with Moussaoui over the years leading up to his
plea, most of which occurred while Moussaoui was representing and speaking for himself. In addition, the district court
had the opportunity to observe Moussaoui represent himself
at the Rule 15 deposition of a JI operative, during which
Moussaoui conducted himself rationally and intelligently,
conducted cross-examination of the witness, and made cogent
objections, many of which were sustained by the district
court. We also find significant the extensive discussion
regarding Moussaoui’s waiver of appellate rights, during
which Moussaoui confirmed his understanding that a guilty
plea precluded his raising constitutional arguments on appeal:
What is certain, okay, is I’ve listened to their
advice, read . . . the Blackledge v. Perry case [they
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sent] with the statement of the Supreme Court, who
made absolutely clear that once you have pled guilty,
you cannot raise any – you cannot raise claim relating to deprivation of constitutional rights . . . that
occur prior to the entry of the guilty plea. This is the
word of the Supreme Court.
2 Supp. J.A. 59.
Clearly, Moussaoui "ha[d] sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding" and "a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402
(internal quotation marks omitted). As noted by the district
court, Moussaoui has a view that is significantly and culturally different from ours, but there is nothing to indicate that
the district court’s observations should have reasonably
caused it to believe that Moussaoui was suffering from a mental disease or defect that interfered with his ability to understand the nature and consequences of entering a plea of guilty.
See Banks, 482 F.3d at 743 (noting that "[w]e defer . . . to the
district court because it is in a superior position to adjudge the
presence of indicia of incompetency constituting reasonable
cause to initiate a hearing"); United States v. West, 877 F.2d
281, 285 n.1 (4th Cir. 1989) (finding no abuse of discretion
where "district court, having observed and talked with [defendant] at numerous prior hearings, found no reasonable cause
to believe he was unfit to stand trial" and, thus, denied motion
to determine mental competence).
IV. Challenges to the Rule 11 Proceeding
Moussaoui’s final challenges to his guilty plea are based
upon his assertion that the district court violated Rule 11 by
(1) failing to inform him of the nature of the charged conspiracies, in particular, that they encompassed the 9/11 attacks;
(2) failing to ensure that there was an adequate factual basis
for his plea, including a basis for venue in the Eastern District
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of Virginia; and (3) failing to inform him of the possible sentences he would face.
Rule 11 "governs the duty of the trial judge before accepting a guilty plea." Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969). It requires the judge to address the defendant "to
ensure that he understands the law of his crime in relation to
the facts of his case, as well as his rights as a criminal defendant." United States v. Vonn, 535 U.S. 55, 62 (2002); see also
United States v. Wood, 378 F.3d 342, 349 (4th Cir. 2004)
(explaining that the plea colloquy is the avenue by which the
court conclusively "establish[es] that the defendant knowingly
and voluntarily enters his plea"); United States v. Standiford,
148 F.3d 864, 868 (7th Cir. 1998) ("The whole point of the
Rule 11 colloquy is to establish that the plea was knowingly
and voluntarily made."). We "accord deference to the trial
court’s decision as to how best to conduct the mandated colloquy with the defendant." United States v. DeFusco, 949 F.2d
114, 116 (4th Cir. 1991).
Because Moussaoui’s claims are raised for the first time on
appeal, our review is for plain error. See Vonn, 535 U.S. at 71.
Moussaoui must therefore establish (1) error; (2) that was
plain; and (3) that affected his substantial rights, i.e., "a reasonable probability that, but for the error, he would not have
entered the plea." United States v. Dominquez Benitez, 542
U.S. 74, 83 (2004); see United States v. Olano, 507 U.S. 725,
731-32 (1993). Even then, the court will not "correct the forfeited error . . . unless [it] seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings." Olano,
507 U.S. at 731-32.
A. Nature of the Charges
Moussaoui claims that the district court failed to inform
him of the nature of the charges and ensure that he understood
them. See Fed. R. Crim. P. 11(b)(1)(G). Specifically, he contends that the Indictment charged him with participation in the
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9/11 attacks, but he was led to believe that he was pleading
guilty to a different conspiracy. We disagree.
As an initial premise, we reject Moussaoui’s claim that the
Indictment charged him only with conspiring to personally
participate in the 9/11 attacks as a 9/11 hijacker. The Indictment charged Moussaoui with six conspiracy counts arising
out of al Qaeda’s plan to hijack airplanes and fly them into
designated targets, and the Indictment identified 110 overt
acts taken by the conspirators in furtherance of that plan.
These overt acts included the actions taken by Moussaoui and
the co-conspirators in preparation for such attacks and the
9/11 attacks themselves, which resulted in the deaths of nearly
3,000 people.20 Based upon the deaths resulting from the 9/11
attacks, the Indictment also included special findings required
under the FDPA to authorize the death penalty. Thus, the
charged conspiracies were not agreements to carry out the
9/11 attacks specifically; the 9/11 attacks were overt acts
taken after Moussaoui’s arrest by his co-conspirators in furtherance of the charged conspiracies. They also served as the
basis for the Government’s decision to seek the death penalty.
During the plea colloquy, the district court properly
informed Moussaoui of the nature of these charges and
ensured that he understood them. The district court went over
each count in the Indictment, which Moussaoui represented
he had received long ago and "kn[ew] very much what [it
was] talking about." J.A. 1419. See Bousley v. United States,
523 U.S. 614, 618 (1998) (noting that providing the defendant
with a copy of the indictment "give[s] rise to a presumption
that the defendant was informed of the nature of the charge
against him"). In addition, Moussaoui was informed, among
20Counts One through Four and Six alleged that the conspiracies
resulted in the deaths of thousands of persons on 9/11. Count Five alleged
that the conspiracy involved the intent to kill officers and employees of the
United States, including members of the Department of Defense stationed
at the Pentagon.
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other things, of the Government’s burden of proof, including
the requirement that it prove that Moussaoui "knowingly and
intentionally entered into acts in furtherance of the conspirac-
[ies], "knew about the conspirac[ies]," and "purposely joined
[them]." J.A. 1425. Finally, the court correctly advised Moussaoui that the Government would "have to prove that at least
one of the specific overt acts . . . listed in the [I]ndictment was
committed either by [him] or by some other member of the
conspirac[ies]." J.A. 1426.21
The court also addressed the Statement of Facts with Moussaoui. Moussaoui represented that he had read the Statement
of Facts "more than ten times," had "pondered . . . each paragraph," and found the document to be factually accurate. J.A.
1431. He requested a single correction to paragraph 15,
changing the date that he told his al Qaeda associate that he
would finish jet simulator training from "by the 20th of
August," 2001, to "before September 2001." 2 Supp. J.A. 45-
46. The Statement of Facts laid out what the Government
could prove at trial and was fully consistent with the charges
in the Indictment, including a description of the 9/11 attacks
as an object of the conspiracies and Moussaoui’s admission
that he lied to ensure the success of his co-conspirators. See
United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992)
(en banc) ("Statements of fact by a defendant in a Rule 11
proceeding may not ordinarily be repudiated."); Burket v.
Angelone, 208 F.3d 172, 191 (4th Cir. 2000) ("Absent clear
and convincing evidence to the contrary, [a defendant] is
bound by the representations he made during the plea colloquy."). At no point did Moussaoui deny that he was a part of
the conspiracies, or deny that the conspiracies resulted in the
9/11 attacks.
21In addition, the district court had engaged in an extensive discussion
of conspiracy law and its application to the charges at the Rule 11 hearing
held in July 2002. See Vonn, 535 U.S. at 75 ("[T]here are circumstances
in which defendants may be presumed to recall information provided to
them prior to the plea proceeding.").
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Notwithstanding these representations, Moussaoui now
claims that the Statement of Facts and plea colloquy misled
him into believing that he was not pleading guilty to any conspiracy that included 9/11, and that his confusion on this point
was evidenced by various statements he made both pre-plea
and post-plea. We are unpersuaded.
The elements of a conspiracy charge are: (1) an agreement
among the defendants to do something which the law prohibits; (2) the defendants’ knowing and willing participation in
the agreement; and (3) an overt act by one of the conspirators
in furtherance of the agreement’s purpose. See United States
v. Hedgepath, 418 F.3d 411, 420 (4th Cir. 2005). Because it
is the agreement to commit the crime that creates the conspiracy, the defendant need not know the details of the underlying
crime or "the entire breadth of the criminal enterprise." United
States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc).
"A conspirator need not have had actual knowledge of the coconspirators," and "a conspiracy conviction must be upheld
even if the defendant played only a minor role in the conspiracy." United States v. Morsley, 64 F.3d 907, 919 (4th Cir.
1995); see also United States v. Banks, 10 F.3d 1044, 1054
(4th Cir. 1993) ("It is of course elementary that one may be
a member of a conspiracy without knowing its full scope, or
all its members, and without taking part in the full range of
its activities or over the whole period of its existence."). The
defendant "may be liable for conspiracy even though he was
incapable of committing the substantive offense." Salinas v.
United States, 522 U.S. 52, 64 (1997).
In the Statement of Facts, Moussaoui admitted, among
other things, that he "knew of al Qaeda’s plan to fly airplanes
into prominent buildings in the United States and he agreed
to travel to the United States to participate in the plan." J.A.
1410. He admitted that "Bin Laden personally selected [him]
to participate in the operation to fly planes into American
buildings and approved Moussaoui attacking the White
House." J.A. 1410. He also admitted that an al Qaeda assoUNITED STATES v. MOUSSAOUI 59
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ciate provided him with information about flight training, that
he pursued such "training as a pilot in furtherance of al
Qaeda’s plan to use planes to kill Americans," and that he
advised an al Qaeda associate that he would complete his
training before September 2001. J.A. 1411.
Because Moussaoui had denied specific knowledge of the
9/11 hijackers, their activities, or the details of the planes
operation in the United States, the Statement of Facts contained admissions placing him in the general conspiracies to
hijack planes and use them to strike prominent buildings. It
did not, however, involve admissions that Moussaoui knew
the specifics of the operation, such as the precise date, the
range of targets, and the identities of all the hijackers. The latter, however, were not necessary for his conviction, nor was
his guilty plea contingent upon them—a fact that had been
earlier recognized by the district court and this court in published opinions. See United States v. Moussaoui, 282 F. Supp.
2d 480, 484 (E.D. Va. 2003) (noting that "the United States
correctly contends that it need not prove the defendant’s participation in the September 11 attacks to obtain a conviction
in this case."); Moussaoui II, 382 F.3d at 473 (noting argument "that even if the witnesses’ testimony would tend to
exonerate Moussaoui of involvement in the [9/11] attacks,
such testimony would not be material because the conspiracies with which Moussaoui is charged are broader than
[9/11]"). However, the Statement of Facts did include facts
pertaining to the overt acts engaged in by his co-conspirators
on 9/11, as well as an admission that Moussaoui "lied to federal agents to allow his al Qaeda ‘brothers’ to go forward with
the operation." J.A. 1412. Thus, Moussaoui admitted facts
sufficient to plead guilty to the conspiracy charges without
foreclosing defense strategies during the death penalty phase
that would directly focus upon Moussaoui’s degree of culpability for the deaths that occurred on 9/11.
Moussaoui’s pre-plea denials regarding his specific
involvement in 9/11 also lend no support to his claim that he
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was confused or misled about the nature of the conspiracy
charges to which he was pleading guilty. Pre-plea denials of
guilt, of course, would be the usual case where guilty pleas
are entered after an arraignment. In addition, Moussaoui never
admitted knowing the particulars of the planes operation.
After he was asked to and agreed to become a participant in
the planes conspiracy, he was sent here to train and await further instructions. While doing so, Moussaoui was kept separate from the other hijackers. But this was fully consistent
with the operational trade craft of al Qaeda and Moussaoui’s
training as an al Qaeda soldier, cf. United States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (explaining that the
fact that persons "were not always aware of the others’ activities . . . would not prevent the jury from determining that a
single conspiracy existed," as this was "part of the standard
operating procedure for those engaged in espionage"), and
does not indicate that Moussaoui was "confused" about the
Indictment or at the guilty plea proceeding.
We also reject Moussaoui’s claim that his post-plea statements demonstrate the failure of the district court to ensure
his understanding of the nature of the charges and the confusion he labored under during the Rule 11 proceeding. After
the district court accepted Moussaoui’s guilty plea, the court
turned to address motions and issues pertaining to the upcoming capital sentencing proceeding. In connection with the latter, Moussaoui advised the court that he wanted to "file [a]
motion regarding ineffective assistance of defense counsel."
J.A. 1438.22 Part of his complaint was that defense counsel
were pursuing a strategy that he was incompetent and had a
22As discussed in some detail above, Moussaoui vehemently opposed
defense counsel’s representation of him, both as counsel of record and as
standby counsel, throughout the proceedings and refused to cooperate with
the court, counsel, his mother, or Muslim counsel who had stepped forward to assist him. Although his hostile actions had resulted in the revocation of his right to proceed pro se by the time of the guilty plea
proceeding, he continued to conduct himself as if he were pro se, and was
given a great deal of latitude in this regard.
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minor role in 9/11, instead of advancing his desire to argue,
in mitigation, that he did not come "into the United States to
participate in[ ] 9/11" at all. J.A. 1441. Clearly seeking to distance himself for purposes of the sentencing proceeding from
the 9/11 attacks, and the deaths that served as the basis for a
possible sentence of death under the FDPA, Moussaoui
asserted a new theory of his role as an al Qaeda terrorist—that
he "was being trained on the 747[-]400 to eventually use this
plane as stated in this [S]tatement of [F]act[s] to strike the
White House" but that his "aim" was to free Sheikh Omar
Abdel Rahman," (a/k/a the "Blind Sheikh"), an al Qaeda associate who was being held in custody in Florence, Colorado,
and that this "was a different conspiracy tha[n] 9/11." J.A.
1440 (emphasis added). In doing so, however, Moussaoui
reiterated that he was "guilty of a broad conspiracy to use [a]
weapon of mass destruction to hit the White House." J.A.
1440. He simply added that he was only to do so "if the
American government refuse[d] to negotiate" to free the Blind
Sheikh, and asserted that the 9/11 attacks were "not my conspiracy." J.A. 1440-41.
Although Moussaoui refers to his "Blind Sheikh" strategy
as a "different conspiracy" from the so-called "9/11 conspiracy," we fail to see how his strategic post-plea claims could
somehow render invalid the guilty plea he had just entered to
the broader conspiracies. The district court had just reviewed
the Indictment with Moussaoui, as well as the Statement of
Facts that was sufficient to establish Moussaoui’s participation in the al Qaeda conspiracies to hijack planes and fly them
into buildings in the United States. At no point during the
post-plea discussion did Moussaoui indicate that he was confused about the crimes to which he had just pled guilty. On
the contrary, Moussaoui reiterated that he had pled guilty to
the "broader conspiracy to use [an] airplane as [a] weapon of
mass destruction" to hit the White House and that he was
"being trained on the 747[-]400 to eventually use this plane
as stated in this statement of fact to strike the White House."
J.A. 1440. Far from exhibiting confusion, Moussaoui’s state62 UNITED STATES v. MOUSSAOUI
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ment seems more to demonstrate his understanding that his
responsibility for 9/11 remained an important issue for sentencing and just how well he understood the distinction
between the broad conspiracies to which he had pled guilty
and the 9/11 overt acts upon which his eligibility for the death
penalty rested.23
Finally, we find it significant that Moussaoui never sought
to rescind the admissions he had just made, nor to withdraw
his guilty plea during the nearly year-long period that elapsed
between his plea and the conclusion of the sentencing proceeding. See Fed. R. Crim. P. 11(d)(2)(B) ("A defendant may
withdraw a plea of guilty . . . after the court accepts the plea,
but before it imposes sentence if . . . the defendant can show
a fair and just reason for requesting the withdrawal."). On the
contrary, Moussaoui abandoned his "Blind Sheikh" strategy
and declined to pursue the "second wave" strategy, opting
instead to admit his responsibility for 9/11 in the belief that
the jurors would spare his life if he accepted responsibility
and gave them reasons to believe that death would be a
reward.
23We also note that we had just discussed such a distinction in Moussaoui II and may well have mapped out Moussaoui’s strategy for the sentencing at the time. In addressing the Government’s argument that, even
if exculpatory as to 9/11, the ECWs "testimony would not be material
because the conspiracies with which Moussaoui is charged are broader
than September 11," we noted "the possibility that Moussaoui may assert
that the conspiracy culminating in the September 11 attacks was distinct
from any conspiracy in which he was involved" and that "even if the jury
accept[ed] the Government’s claims regarding the [broader] scope of the
charged conspiracy, testimony regarding Moussaoui’s non-involvement in
September 11 [would be] critical to the penalty phase. If Moussaoui had
no involvement in or knowledge of September 11, it is entirely possible
that he would not be found eligible for the death penalty." Moussaoui II,
382 F.3d at 473. Thus, our opinion would have alerted Moussaoui to the
issue of the scope of the conspiracy and the benefits he might derive at
sentencing from arguing that the conspiracy in which he was involved was
"distinct" from the 9/11 attacks.
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To conclude, we hold that the district court properly
informed Moussaoui of the nature of the charged conspiracies
and ensured that he understood them. Regardless of the precise role the al Qaeda leadership intended Moussaoui to play,
or what role he believed he would ultimately play, the facts
admitted by Moussaoui were within the scope of the conspiracies charged. There is no indication that Moussaoui, clearly
the intelligent and knowledgeable man he was observed to be
by the district court, was laboring under any confusion when
he signed the Statement of Facts and entered his valid plea of
guilty to the conspiracies as charged.
B. Factual Basis For the Plea
Moussaoui’s contention that there was an insufficient factual basis for his guilty plea similarly rests upon his early
denials of an intended role in the 9/11 attacks and his claim
that the Indictment charged him only with conspiring to participate in them. This argument fails for the same reasons previously discussed.
Rule 11(b)(3) requires the district court to "determine that
there is a factual basis for the plea." Fed. R. Crim. P. 11(b)(3).
The requirement "ensures that the court make clear exactly
what a defendant admits to, and whether those admissions are
factually sufficient to constitute the alleged crime." United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). "The
requirement to find a factual basis is designed to protect a
defendant who is in the position of pleading voluntarily with
an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the
charge." United States v. Mastrapa, 509 F.3d 652, 660 (4th
Cir. 2007) (internal quotation marks omitted). "[T]he trial
court has wide discretion when determining whether a factual
basis exists." DeFusco, 949 F.2d at 120. "[I]t need only be
subjectively satisfied that there is a sufficient factual basis for
a conclusion that the defendant committed all of the elements
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of the offense." United States v. Ketchum, 550 F.3d 363, 366
(4th Cir. 2008) (internal quotation marks omitted).
The Statement of Facts adopted by Moussaoui and his representations during the plea colloquy were fully consistent
with the charged conspiracies and provided an adequate factual basis for acceptance of the plea. There was no requirement that Moussaoui personally admit to participating in the
9/11 attacks, or that he was intended to be a part of those
attacks. And, as noted above, the fact that he was kept separate from the other hijackers and did not know the specifics
of the planes operation was, in the circumstances of this case,
fully consistent with the operational trade craft of al Qaeda
and Moussaoui’s training. Cf. Squillacote, 221 F.3d at 574.
Accordingly, we find no error in this regard.
Moussaoui’s claim that there was no factual basis for venue
in the Eastern District of Virginia, because there was no factual basis connecting him to the 9/11 attacks, also fails. Venue
is proper in any district in which some act in furtherance of
the conspiracy was committed. See United States v. Al-Talib,
55 F.3d 923, 928 (4th Cir. 1995). Assuming, without deciding, that the district court would even be bound to find a factual basis for venue during the plea colloquy, Moussaoui is
not entitled to relief because at least one overt act taken by the
al Qaeda conspirators took place at the Pentagon, in the Eastern District of Virginia.
C. The Possible Sentences
Finally, Moussaoui asserts that the district court erroneously advised him during the plea colloquy that his only sentencing options were life imprisonment and death, whereas
the district court should have informed Moussaoui that a term
of years was a possible sentence as well.
As part of the Rule 11 colloquy, the district court "must
inform the defendant of, and determine that the defendant
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understands, . . . any maximum possible penalty, including
imprisonment, fine, and term of supervised release; [and] any
mandatory minimum penalty." Fed. R. Crim. P. 11(b)(1)(H)
& (I). The district court complied with this requirement,
informing Moussaoui that he faced a maximum possible penalty of life without parole or death.
V. Sentencing
Finally, Moussaoui raises several challenges to his sentence. Before addressing Moussaoui’s challenges, we believe
it would be helpful to first outline the operation of the Federal
Death Penalty Act and describe the proceedings that took
place in this case.
A.
Under the FDPA, the Government must prove a threshold
eligibility factor before a defendant may be sentenced to death.24
See 18 U.S.C.A. § 3591(a)(2) (West 2000). If the jury unanimously finds that the Government has established that threshold fact, the jury must make specific findings about the
existence of aggravating factors and any mitigating factors
and must weigh those factors to determine whether the factors
"justify a sentence of death. Based upon this consideration,
the jury by unanimous vote . . . shall recommend whether the
defendant should be sentenced to death, to life imprisonment
without possibility of release or some other lesser sentence."
18 U.S.C.A. § 3593(e). In this case, the district court at Moussaoui’s request bifurcated the sentencing proceeding, so that
24The death-eligibility factor asserted by the Government was that
Moussaoui "intentionally participated in an act, contemplating that the life
of a person would be taken or intending that lethal force would be used
in connection with a person, other than one of the participants in the
offense, and the victim died as a result of the act." 18 U.S.C.A.
§ 3591(a)(2)(C). The "act" that the Government identified was Moussaoui’s lies to law enforcement following his arrest, which concealed al
Qaeda’s ongoing plot.
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the jury would first decide whether the Government had
proven the threshold eligibility factor and then in a separate
proceeding would determine whether a death sentence was
justified. The Government and the defense had the opportunity to make opening and closing statements during both
phases of the sentencing proceeding.
As outlined above, the FDPA contemplates that the jury
will decide whether a defendant should be sentenced to death,
to life imprisonment, or to a lesser, term-of-years sentence.
Counsel for Moussaoui, however, made the strategic determination that the best chance for avoiding a death sentence was
to convince the jury that Moussaoui would spend the rest of
his life in prison if the jury declined to impose the death penalty. Accordingly, before opening statements in the first phase
of the sentencing, defense counsel requested that the district
court instruct the jury that if the jury did not unanimously recommend a death sentence, the district court would then
impose a sentence of life imprisonment without the possibility
of release. The district court agreed and, at the beginning of
the phase I proceedings, gave verbatim the instruction
requested by Moussaoui. See J.A. 1591 ("If you fail to unanimously find that the government has proved [that Moussaoui
is death-eligible] beyond a reasonable doubt, your deliberations are over. The Court will then sentence the defendant to
life imprisonment without the possibility of release."). Counsel for Moussaoui emphasized during the first-phase opening
statements that Moussaoui would receive a life sentence if he
was found not to be eligible for the death penalty, describing
Moussaoui as "the man behind [him] in the prison jumpsuit
that he will wear for the rest of his life." J.A. 1626. The district court drove the point home, instructing the jury (again,
at Moussaoui’s request) before the first-phase closing arguments that if the jury failed to find Moussaoui to be deatheligible, "[t]he Court will then sentence the defendant to life
imprisonment without the possibility of release." J.A. 4368.
The jury unanimously found Moussaoui to be death-eligible
on all three counts for which the Government sought the death
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penalty, thereby necessitating the second phase of the sentencing proceedings.
Counsel for Moussaoui continued this strategy into the second phase, when the jury was required to make and weigh
specific findings as to aggravating and mitigating factors.
During this phase, Moussaoui and the Government stipulated
that if the jury did not unanimously recommend a death sentence, the district court would "impose a mandatory sentence
of life imprisonment without the possibility of parole," J.A.
6507, and the district court gave the jury a similar instruction.
Defense counsel’s strategy was evidenced during closing
argument, when counsel exhorted the jury to "confine [Moussaoui] to a miserable existence until he dies, not the death of
a jihadist that he clearly wants, but the long, slow death of a
common criminal." J.A. 5481. Defense counsel identified the
fact that "if [Moussaoui] is not sentenced to death, [he would]
be incarcerated in prison for the rest of his life, without the
possibility of release" as a factor mitigating against imposition of the death penalty. J.A. 6737.
At Moussaoui’s request, however, the jury was not asked
to decide unanimously whether Moussaoui should receive life
imprisonment – as opposed to a lesser sentence—in the event
it did not unanimously recommend the death penalty. The district court instead repeated its previous instructions, informing
the jury that if it did not unanimously impose a sentence of
death, Moussaoui would be sentenced to life imprisonment
without the possibility of release. See J.A. 4408G-H ("If the
jury has found at least one of the three statutory aggravating
factors, then its final job will be to decide whether the defendant should be sentenced to death or life imprisonment without possibility of release."); J.A. 5557 ("If you do not
unanimously determine that a sentence of death is justified as
to any particular count, that determination constitutes a decision by the jury that the defendant be sentenced to life imprisonment without the possibility of release for that particular
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count. And you shall then record your determination with
regard to that count on the special verdict form.").
At the conclusion of the second phase, the jury unanimously found that the Government had proven certain statutory aggravating factors for each capital count, as well as
several non-statutory aggravating factors. Several jurors also
found that Moussaoui had proven several mitigating factors
by a preponderance of the evidence, including five jurors who
found that the requirement that Moussaoui at least be sentenced to life imprisonment was a mitigating factor. Ultimately, the jury did not unanimously agree to recommend the
death penalty.
The district court sentenced Moussaoui the day after the
jury returned its verdict. The court adopted the information in
the presentence report and utilized a total offense level of 58
and criminal history category of VI, which yielded an advisory guidelines range of life imprisonment. Defense counsel
informed the court that they believed that sentence to be a
"proper" one. J.A. 5599. At that time, three family members
of victims of the 9/11 attacks addressed the court regarding
the terrible effects of the attacks. Given the opportunity to
allocute, Moussaoui denounced one of the family members as
a hypocrite before the district court ruled that the response
was an inappropriate political statement. The district court
sentenced Moussaoui to life imprisonment without possibility
of release on all six counts with the sentence on Count One
to be served consecutively to the sentences on the other
counts. In so doing, the district court characterized its sentence as "appropriate and fair." J.A. 5613.
B.
On appeal, Moussaoui argues that district court erred by
denying his motions for acquittal on the death-eligibility question. Moussaoui contends that the Government’s evidence
was insufficient to establish as the statutory death-eligibility
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factor that Moussaoui committed an act directly resulting in
death. Moussaoui also argues that the Government’s theory of
death eligibility, if upheld, would render the FDPA unconstitutional as applied to him. Because the jury did not sentence
Moussaoui to death, we need not consider these claims. The
jury’s rejection of the death penalty means that Moussaoui’s
claims are now moot, cf. United States v. Partida, 385 F.3d
546, 560 n.10 (5th Cir. 2004) (rejecting sufficiency-of-theevidence claim as moot where defendant was acquitted of the
count being challenged), or, at the very least, that any error
was harmless, see Fed. R. Crim. P. 52(a) ("Any error . . . that
does not affect substantial rights must be disregarded.").
Moussaoui, however, contends that he was prejudiced by
the denial of his motion for acquittal because under 18
U.S.C.A. § 3594 (West 2000), the jury’s determination that he
was death-eligible, combined with the fact that the jury did
not unanimously recommend a death sentence, required the
district court to impose a sentence of life imprisonment. We
disagree.
As discussed above, § 3593(e) provides that if a jury finds
a defendant to be eligible for the death penalty, the jury must
then by unanimous vote "recommend whether the defendant
should be sentenced to death, to life imprisonment without
possibility of release or some other lesser sentence." 18
U.S.C.A. § 3592(e). Section 3594, in turn, provides that
"[u]pon a recommendation under section 3593(e) that the
defendant should be sentenced to death or life imprisonment
without the possibility of release, the court shall sentence the
defendant accordingly. Otherwise, the court shall impose any
lesser sentence that is authorized by law." 18 U.S.C.A. § 3594
(emphasis added). Because the jury (at Moussaoui’s request)
was not asked whether it unanimously agreed that Moussaoui
should be sentenced to life imprisonment, the jury did not
make the § 3593(e) recommendation that would have triggered an automatic life sentence under § 3594. We therefore
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eligibility question to the jury and the jury’s subsequent
refusal to impose the death penalty combined to require the
district court to impose a life sentence.
Independent of his § 3594 argument, however, Moussaoui
contends that the district court wrongly25 believed that a life
sentence (as opposed to a term-of-years sentence) was mandated after the jury did not unanimously recommend a sentence of death. Moussaoui therefore contends that a remand
for resentencing is required. See, e.g., United States v. Daiagi,
892 F.2d 31, 33 (4th Cir. 1989) ("[T]he defendant should be
accorded a right to press his petition for a probationary sentence before a court which has not incorrectly assumed that it
absolutely lacks the power to impose such a sentence.").
Because Moussaoui raises this argument for the first time on
appeal, we review for plain error only. See United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005); Fed. R. Crim. P.
52(b).
Under plain error review, "we must affirm unless an appellant can show that (1) an error was made, (2) it was plain, and
(3) it affected the appellant’s substantial rights." United States
v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). Even if the
appellant makes that showing, "the correction of plain error
lies within our discretion, which we do not exercise unless the
error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation marks
omitted).
In this case, Moussaoui cannot show that a plain error even
occurred. An error is plain if it is "clear" or "obvious." United
States v. Olano, 507 U.S. 725, 734 (1993). As support for his
25The Government does not argue on appeal that Moussaoui was in fact
subject to a mandatory life sentence under any of the counts to which he
pleaded guilty. Accordingly, for purposes of this appeal, we will assume
without deciding that none of the charges carried a mandatory life sentence.
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claim of error, Moussaoui relies on statements made by the
district court when accepting Moussaoui’s guilty plea. See,
e.g., J.A. 1421 ("You are aware that the first four counts
essentially expose you to the possibility of a death sentence
or life imprisonment without the possibility of parole?"). The
Federal Rules of Criminal Procedure, however, require a district court before accepting a guilty plea to inform the defendant of the maximum sentences he faces. See Fed. R. Crim.
P. 11(b)(1)(H) ("Before the court accepts a plea of guilty . . . .
the court must inform the defendant of, and determine that the
defendant understands . . . any maximum possible penalty,
including imprisonment, fine, and term of supervised release
. . . ."). When these statements are read in the context of the
Rule 11 proceeding, it is apparent that the district court was
simply fulfilling its Rule 11 obligation to inform Moussaoui
about the maximum sentences he faced. See J.A. 1419 ("I
need to go over the indictment with you at this time, the specific charges that are included in the indictment, the maximum
sentences to which you are exposed with any finding of guilt
. . . . (emphasis added)). These statements therefore provide
no support for Moussaoui’s claim that the district court
wrongly believed that a life sentence was mandated once the
jury declined to sentence Moussaoui to death. And because
Moussaoui has not demonstrated that the district court in fact
believed that Moussaoui was not eligible for a term-of-years
sentence, he has not carried his burden of establishing the
existence of a plain error.26 See United States v. Massenburg,
26Moussaoui also points to statements made by the district court during
the 2002 Rule 11 hearing on Moussaoui’s first (but ultimately withdrawn)
attempt to plead guilty, when the court explained that the charges carried
two "and only two" possible penalties: "either life imprisonment without
the possibility of parole or the death penalty." J.A. 524. Putting aside the
fact that these statements were likewise made in a Rule 11 proceeding
where the court was required to explain the maximum sentences, we question the relevance to our plain-error inquiry of statements made by the district court in connection with an aborted guilty plea that took place four
years before the actual, effective guilty plea. Moreover, it is only by virtue
of the sentencing discretion given district courts by the Supreme Court in
United States v. Booker, 543 U.S. 220 (2005), that Moussaoui can even
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564 F.3d 337, 343 (4th Cir. 2009) ("[T]he defendant bears the
burden of satisfying each of the elements of the plain error
standard.").
Moreover, even if Moussaoui could establish that the district court wrongly believed that Moussaoui could not be sentenced to a term of years, we would not exercise our
discretion to correct the error. As discussed above, counsel for
Moussaoui repeatedly argued to the jury that Moussaoui
would spend the rest of his life in prison if the jury did not
sentence him to death, and counsel specifically requested that
the jury not be asked to recommend, as provided for in
§ 3593, life imprisonment or a lesser sentence. After the district court at sentencing explained that the guidelines calculation called for a life sentence, counsel for Moussaoui
specifically agreed that life imprisonment was warranted:
"We believe the sentence is a proper sentence, that he should
spend the rest of his life incarcerated for his participation in
this conspiracy." J.A. 5599. Because Moussaoui insisted
throughout the proceedings below that he would and should
receive a life sentence, it would not be appropriate to recognize and correct the alleged error in this case. In this regard,
we agree with the sentiments expressed by the Second Circuit
when presented with a similar argument:
[B]ecause defendants, in successfully avoiding the
death penalty, made a tactical decision to concede
the singular non-capital alternative of a life sentence,
we conclude that they cannot now argue that the
imposition of such a sentence constitutes plain error.
Indeed, if we were to entertain an argument that
afforded defendants the possibility of a lesser senargue that he could have been sentenced to a sentence of a term of years.
Because the first Rule 11 proceeding took place in 2002, when the Sentencing Guidelines were still mandatory, the district court’s statements
accurately reflected the sentencing options then available.
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tence than the one the jury was told would be
required when it voted to spare defendants the death
penalty, that ruling, and not the challenged life sentences, would raise concerns about the fairness,
integrity, and repute of the capital proceeding.
United States v. Quinones, 511 F.3d 289, 322 (2d Cir. 2007)
(citations and footnote omitted).
VI. The Motion to Remand
Finally, we briefly address a renewed motion filed by
Moussaoui, seeking to remand this case to the district court
for consideration of classified information that was discovered and produced by the Government to this court and the
district court after this appeal was filed.
In connection with the previous proceedings and appeal
regarding Moussaoui’s access to the ECWs for Rule 15 depositions, the Government advised the district court and this
court that there were no recordings of the interrogations of the
ECWs by the intelligence agencies. Specifically, in May
2003, in connection with a CIPA hearing conducted by the
district court on remand from this court for consideration of
substitutions in lieu of access to the witnesses, the district
court ordered the Government to determine whether interrogations of the witnesses had been recorded. On May 9, 2003,
the Government filed a CIA declaration representing that
there were no recordings.
After we issued our opinion in Moussaoui II and Moussaoui pled guilty, the district court similarly ordered the Government to determine whether recordings existed of
interrogations of additional ECWs (sought in connection with
the sentencing proceeding). On November 14, 2005, the Government filed a second CIA declaration representing that there
were no such recordings.
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On October 25, 2007, during the pendency of the current
appeal, the Government sua sponte notified the court of the
existence of three recordings (two videotapes and one short
audiotape) of interviews of one of the ECWs. The Government produced transcripts of the two video recordings to us
ex parte, asserting that they "ha[d] no bearing on the Moussaoui prosecution" because they "contain[ ] no mention of
Moussaoui or any details of the [9/11] plot." J.A. 5629B.27
The Government explained that "[t]he transcript of the audio
tape previously existed and was contained within an intelligence cable." J.A. 5629C.
In December 2007, the Government also disclosed that it
had learned that hundreds of hours of videotapes of al Qaeda
operative Abu Zubaydah had been destroyed in the fall of
2005. Although Moussaoui had sought access to Zubaydah
prior to pleading guilty, the district court found that the
defense had failed to demonstrate that Zubaydah could provide material, admissible testimony.28 The Government also
discovered the existence of two videotapes of an al Qaeda
operative to whom Moussaoui had first sought access after
pleading guilty. The transcript of one videotape was submitted ex parte to the court, along with the substitution for the
27A redacted copy of the letter was provided to defense counsel. The
transcripts were submitted ex parte under CIPA § 4 because they "address-
[ed] . . . national security matters for which defense counsel lack[ed] a
need to know." J.A. 5629C.
28In a subsequent letter, the Government advised that a former prosecutor in Moussaoui’s case may have been told in late February or early
March 2006 about videotapes of Abu Zubaydah and their destruction. The
prosecutor was one of three AUSAs working on the Moussaoui case, but
does not recall being told this information. Another AUSA, who was not
on the prosecution team, learned of the videotapes in connection with
work he performed on an unrelated project and recalls bringing the matter
to the prosecutor’s attention, again in connection with work unconnected
with Moussaoui’s case. In any event, this alleged notification also postdated Moussaoui’s guilty plea and involved a witness that the district court
had previously determined was not material.
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witness’s testimony prepared for the sentencing proceeding.
The second videotape had not yet been located.
Moussaoui filed a motion for limited remand, requesting
that we remand the case to the district court for an investigation and determination of what recordings existed, the content
of the recordings, and whether the Government had access to
them to determine whether this could have affected the knowing and voluntary nature of Moussaoui’s guilty plea. In January 2008, we denied Moussaoui’s motion for a limited remand
and denied Moussaoui’s motion for access to the classified
tapes and transcripts.
After our decision, the Government located the second videotape of the al Qaeda associate to whom Moussaoui had
sought access post-plea, and submitted this transcript to us ex
parte as well. As represented by the Government, this transcript also makes no mention of Moussaoui or any details of
the September 11 terrorist attacks.29
Since our decision, an Acting United States Attorney was
appointed to investigate missing or destroyed tapes of al
Qaeda detainee interrogations. In July 2008, the Government
requested an extension of its briefing deadline pending its
receipt of information from the tapes investigation that might
or might not be relevant to the issues that had been raised in
Moussaoui’s motion to remand and on appeal. Although no
new information was disclosed at the time, Moussaoui
renewed his motion for limited remand. We denied the motion
as premature, without prejudice to Moussaoui’s right to raise
the issue again after briefing. He has now done so.
We have reviewed the classified information submitted by
the Government ex parte and in camera since our prior deci29Counsel for Moussaoui filed a motion for partial relief from the Protective Order to allow them to discuss this classified information with
Moussaoui, which we also denied.
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sion pertaining to the motion to remand, and find no need for
further proceedings before the district court. We previously
denied Moussaoui’s motion to remand based upon the three
recordings of the ECW that Moussaoui sought access to preplea, satisfied from our in camera and ex parte review that
they presented no information relating to Moussaoui, the
planes operation, or the 9/11 attacks. Accordingly, even if we
were to allow a challenge to the guilty plea for an alleged
Brady violation, the information produced is not Brady material.30 We have also reviewed in camera and ex parte transcripts
of the recordings of the ECW to whom Moussaoui first sought
access post-plea and find them to be similarly devoid of any
exculpatory material.
Moussaoui’s request that we remand to the district court for
further inquiry into the destruction of the Zubaydah recordings was denied in our prior ruling. Moussaoui first sought
access to Zubaydah prior to his guilty plea but was denied
access based upon the district court’s determination that he
was not a material witness. Contrary to Moussaoui’s attempts
to suggest otherwise, the district court made its determination
based upon an ex parte review of the interrogation summaries
submitted by the Government and did not inquire about or
order the production of recordings of Zubaydah. The issues
surrounding the existence of recordings of Zubaydah were
30To the extent that Moussaoui argues that the existence of these recordings may have impacted his decision to plead guilty because it might have
affected his evaluation of the reliability of the summaries of this witness’s
testimony, we are unpersuaded. We previously explained why the intelligence summaries, upon which the substitutions were to be based, carried
sufficient indicia of reliability to alleviate concerns in this regard. See
Moussaoui II, 382 F.3d at 478. Although we, like the district court,
inquired at the time about the existence of recordings that could be compared to the source material, our decision was not dependent upon the
absence of any such recordings. Furthermore, as noted earlier, Moussaoui
short-circuited this entire CIPA process by demanding to plead guilty
before it was completed. And, once the process was completed and the
substitutions provided, Moussaoui made no effort to withdraw his plea.
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first raised on May 2, 2005, when the district court asked the
Government to disclose whether interrogations of detainees
existed in connection with Moussaoui’s motion for reconsideration of the district court’s earlier denial of access to Zubaydah. In the fall of 2005, the Government agreed to produce
discovery of any statements by Zubaydah relating to the 9/11
operation or to Moussaoui, although it continued to oppose
access to him. It was also in the fall of 2005 that the tapes
were allegedly destroyed. However, this all occurred well
after Moussaoui entered his guilty plea and waived his right
to challenge such pre-plea rulings by the district court. And
there is nothing to indicate that Zubaydah actually possessed
evidence that would have been material or favorable to Moussaoui during the guilt phase.
For the foregoing reasons, even if we were to allow a
Brady-type challenge to his guilty plea based solely upon the
failure of the prosecution to produce exculpatory evidence,
Moussaoui has failed to demonstrate that the Government
withheld exculpatory material that would have caused Moussaoui to forego his guilty plea and proceed to trial, much less
evidence of his actual innocence. Should that change, as a
result of the ongoing tapes investigation or otherwise, Moussaoui, like every other criminal defendant, has collateral avenues for raising such claims. In the meantime, the finality of
the guilty plea, entered knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely
consequences, stands.
VII. Conclusion
For the reasons set forth above, we affirm Moussaoui’s
convictions and sentences in their entirety. We also deny his
renewed motion to remand for further proceedings.
AFFIRMED
78 UNITED STATES v. MOUSSAOUI
Appeal: 06-4494 Doc: 300 Filed: 02/09/2010 Pg: 79 of 79 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_08-cv-00752/USCOURTS-caed-1_08-cv-00752-8/pdf.json | [
[
"Katherine Melendez Lopez",
"Respondent"
],
[
"Naoemi Salinas",
"Petitioner"
],
[
"United States of America",
"Petitioner"
]
] | 1
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Benjamin B. Wagner
United States Attorney
BENJAMIN E. HALL
Assistant United States Attorney
United States Courthouse
2500 Tulare Street, Suite 4401
Fresno, California 93721
Telephone: (559) 497-4000
Facsimile: (559) 497-4099
Attorneys for Petitioners
UNITED STATES OF AMERICA and
NAOEMI SALINAS, Revenue Agent,
Internal Revenue Service
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA and )
NAOEMI SALINAS, Revenue )
Officer, Internal Revenue )
Service, )
)
Petitioners, )
)
v. )
)
)
KATHERINE MELENDEZ LOPEZ, )
)
)
Respondent. )
)
)
)
1:08-cv-00752-OWW-SMS
ORDER RE: CONTEMPT
Date: April 19, 2010
Time: 10 a.m.
Ctrm: 3
Hon. Oliver W. Wanger
This matter came before the Court on April 19, 2010, upon an
Order to Show Cause why Respondent, KATHERINE MELENDEZ LOPEZ,
should not be adjudged in contempt of the Court for the reasons
set forth in the Magistrate Judge’s Certification of Facts
Concerning Petition Re: Contempt of Order Filed March 11, 2009;
Order Setting the Matter Before the District Judge for Hearing
and Judgment Pursuant to 28 U.S.C. § 636(e)(6)(B) (Doc. 37).
1
ORDER RE: CONTEMPT
Case 1:08-cv-00752-OWW -SMS Document 45 Filed 04/22/10 Page 1 of 2
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Benjamin E. Hall, Assistant United States Attorney, appeared on
behalf of Petitioners, United States of America and Naoemi
Salinas, Revenue Agent, who was present in the courtroom.
Respondent failed to appear, despite having been personally
served on March 18, 2010, with the Order requiring her to appear
(see Certificate of Service, Doc. 41). Respondent also failed to
file with the Court any opposition to Petitioner’s request that
Respondent be held in contempt.
The Court finds that Respondent has failed and refused to
obey a definite and specific Order of this Court, which required
Respondent to comply with an Internal Revenue Service Summons.
Accordingly,
IT IS HEREBY ORDERED as follows:
1. Respondent, KATHERINE MELENDEZ LOPEZ, is adjudged in
civil contempt of this Court.
2. A bench warrant shall be issued, directing the United
States Marshals Service to take Respondent into custody.
3. Respondent shall be incarcerated until she complies
fully with the Court’s Order filed March 11, 2009, and produces
the documents and testimony identified in the IRS Summons issued
December 6, 2007.
IT IS SO ORDERED.
Dated: April 21, 2010 /s/ Oliver W. Wanger
emm0d6 UNITED STATES DISTRICT JUDGE
2
ORDER RE: CONTEMPT
Case 1:08-cv-00752-OWW -SMS Document 45 Filed 04/22/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-15-14913/USCOURTS-ca11-15-14913-0/pdf.json | [
[
"Bracha Foundation",
"Appellee"
],
[
"Halliwel Assets, Inc.",
"Appellant"
],
[
"Hornbeam Corporation",
"Appellee"
],
[
"Panikos Symeou",
"Appellant"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14913
________________________
D.C. Docket No. 2:15-mc-00748-KOB
IN RE: Application of Bracha Foundation
HALLIWEL ASSETS, INC.,
PANIKOS SYMEOU,
Intervenors-Appellants,
versus
HORNBEAM CORPORATION,
Intervenor-Appellee,
BRACHA FOUNDATION,
Movant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
September 22, 2016
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 1 of 26
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Before MARTIN and JORDAN, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
Three Ukrainian businessmen and friends bought a steel mill in Ohio. They
incorporated a company in the British Virgin Islands to act as the sole
member/owner of the steel mill and each retained one-third of the shares of the
BVI parent company. When a rift between two of the businessmen took place, one
of the men was effectively shut out of the operation of the steel mill. Amidst
allegations of self-dealing between the two still-friendly shareholders, their related
entities, and the steel mill, the odd-man-out pursued lawsuits in the BVI and in
state court in Ohio against the BVI parent company and his former friends. In
addition, pursuant to 28 U.S.C. § 1782, he sought evidence of the self-dealing in
New York, Delaware, Florida, and Alabama, for use in as-of-yet-unfiled foreign
proceedings. This is an appeal from one such discovery action.
After review, and with the benefit of oral argument, we affirm in part, and
vacate and remand in part.
I
Section 1782 provides a mechanism for “any interested person” to apply to
the district court for an order granting discovery “for use in a proceeding in a
* Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 2 of 26
3
foreign or international tribunal.” 28 U.S.C. § 1782. A district court is authorized
to grant such an application under § 1782 if the following four statutory
requirements are met:
(1) the request must be made “by a foreign or international tribunal,”
or by “any interested person”; (2) the request must seek evidence,
whether it be the “testimony or statement” of a person or the
production of “a document or other thing”; (3) the evidence must be
“for use in a proceeding in a foreign or international tribunal”; and (4)
the person from whom discovery is sought must reside or be found in
the district of the district court ruling on the application for assistance.
In re Clerici, 481 F.3d 1324, 1331–32 (11th Cir. 2007) (quoting § 1782) (footnote
omitted). If these statutory requirements are met, a district court is authorized—
but not required—to grant a § 1782 discovery application. See Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004).
The Supreme Court has provided four factors for a district court to consider
in exercising its discretion under § 1782: “(1) whether ‘the person from whom
discovery is sought is a participant in the foreign proceeding,’ because ‘the need
for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is
sought from a nonparticipant’; (2) ‘the nature of the foreign tribunal, the character
of the proceedings underway abroad, and the receptivity of the foreign government
or the court or agency abroad to U.S. federal-court judicial assistance’; (3)
‘whether the § 1782(a) request conceals an attempt to circumvent foreign proofUSCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 3 of 26
4
gathering restrictions or other policies of a foreign country or the United States’;
and (4) whether the request is otherwise ‘unduly intrusive or burdensome.’” In re
Clerici, 481 F.3d at 1334 (quoting Intel, 542 U.S. at 264–65).
“Because Congress has given the district courts such broad discretion in
granting judicial assistance to foreign countries, this court may overturn the district
court’s decision only for abuse of discretion.” United Kingdom v. United States,
238 F.3d 1312, 1319 (11th Cir. 2001) (quotations and citation omitted). This
“extremely limited and highly deferential” standard of review “is identical to that
used in reviewing the district court’s ordinary discovery rulings . . . .” Id.
(citations omitted). However, “to the extent the district court’s decision is based
on an interpretation of law, our review is de novo.” Id. at n.8.
II
The § 1782 application in the instant case arises out of an ongoing complex
commercial dispute. We present here only the facts essential to the resolution of
this appeal.
A
In 2001, corporate entities controlled by Vadim Shulman purchased a steel
mill in Warren, Ohio. Mr. Shulman shared this investment opportunity with two of
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 4 of 26
5
his friends, Igor Kolomoisky, and Gannady1 Bogolubov. In November of 2007,
ownership of the mill was transferred to Warren Steel Holdings, LLC, a Delaware
limited liability company. Warren Steel’s beneficial owners were Mr. Shulman,
Mr. Kolomoisky, and Mr. Bogolubov. In April of 2008, ownership of Warren
Steel was transferred to Halliwel Assets, Inc., a BVI company, and Panikos
Symeou became Halliwel’s director.
Warren Steel is Halliwel’s only asset. Halliwel, in turn, has three registered
shareholders: Hornbeam Corporation (a Panamanian entity held in trust for Mr.
Shulman); Mr. Symeou (who holds shares in trust for Mr. Kolomoisky); and
Marigold Trust Company Limited (which holds shares in trust for Mr. Bogolubov).
Although the details of the corporate structures are complex, it is undisputed that
Mr. Shulman, Mr. Kolomoisky, and Mr. Bogolubov ultimately each owns or
controls one-third of Halliwel.
On December 19, 2014, Hornbeam initiated a transfer of its Halliwel shares
to Bracha Foundation, a Liechtenstein foundation which is wholly owned or
controlled by Mr. Shulman, and requested Halliwel to amend its books to record
the new ownership. Around this time, Hornbeam recorded its resolution of
1 The parties’ affidavits and briefs contain various spellings for Mr. Bogolubov’s first
name. We adopt the spelling from Appellants’ brief. See Br. for Appellants at 5.
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 5 of 26
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dissolution. Mr. Symeou has not recorded the transfer. Accordingly, Hornbeam
remains the record owner.
B
The merits of the underlying commercial dispute between Mr. Shulman, Mr.
Kolomoisky, and Mr. Bogolubov are not presently before the Court and we do not
attempt to resolve the underlying issues. However, a brief overview is useful for
purposes of context.
According to the § 1782 application, initially filed ex parte by Bracha, Mr.
Kolomoisky and Mr. Bogolubov “appear to be using entities and individuals under
their control to execute an elaborate self-dealing scheme focused on exploiting
Warren Steel.” D.E. 1 at 6. “It appears that [Mr. Kolomoisky and Mr. Bogolubov]
are forcing Warren Steel to transact with related parties on terms unfavorable to
Warren Steel and to accept ill-advised on-demand loans secured by Warren Steel’s
assets and revenues from parties related to [Mr.] Kolomoisky, [Mr.] Bogolubov, or
[Mr.] Korf, but not [Mr.] Shulman.” Id.
In response, Mr. Shulman, through the various entities under his control, has
initiated a number of proceedings against Halliwel, its director, and its
shareholders. In 2014, Hornbeam commenced an action in the BVI to enjoin an
“extraordinary” shareholder meeting to approve a proposed restructuring of
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 6 of 26
7
Warren Steel’s debt. In 2015, Bracha and Hornbeam pursued an action in Ohio
state court to prohibit the sale or transfer of Warren Steel to other entities owned
and controlled by Mr. Kolomoisky and Mr. Bogolubov. Discovery has also been
sought by Hornbeam pursuant to § 1782 in New York, Delaware, Ohio, and
Florida.
C
As relates to the instant action, Bracha filed an ex parte application for
discovery pursuant to § 1782 in the Northern District of Alabama. Bracha sought
an order directing Regions Bank, a bank present in the Northern District of
Alabama, to provide discovery of certain documents for use in contemplated
foreign legal proceedings (i) in the BVI against Halliwel and its other shareholders
(Mr. Symeou and Marigold) “for violation of the BVI Business Companies Act of
2004, including, without limitation, an accounting, valuation, shareholder
oppression, and buyout”; (ii) by Mr. Shulman or one of his entities against Mr.
Symeou, in either BVI or Cyprus, for breach of contract and fiduciary duties; and
(iii) by Mr. Shulman or one of his entities against Mr. Kolomoisky, and/or Mr.
Bogolubov for breach of their joint venture agreement. D.E. 1 at 3–4. The district
court granted Bracha’s ex parte application.
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 7 of 26
8
A few months later—after Bracha served its non-party subpoena on Regions
Bank and provided notice of the same to Appellants Halliwel and Mr. Symeou
(hereinafter, Halliwel)—Halliwel filed a motion to intervene, a motion to vacate,
and an emergency motion for protective order. In its motion to vacate, Halliwel
argued, inter alia, that § 1782 applications should not be granted ex parte; that
Bracha was not an “interested person” under § 1782 because it was not the record
owner of the Halliwel shares and, under BVI law, only record owners have
standing to bring the contemplated action against Halliwel in BVI courts; and that
Bracha’s discovery was a mere fishing expedition for use in domestic litigation.
Shortly thereafter, Bracha and Hornbeam moved jointly for Hornbeam to
intervene or for the district court to amend the original § 1782 application to
include Hornbeam, so as to expedite the court’s consideration of the merits of the
application.
At a hearing where all parties were represented, the district court granted
Halliwel and Hornbeam’s respective motions to intervene. As to Halliwel’s
argument that Bracha failed to satisfy § 1782’s “interested person” requirement,
the district court noted:
I think at one point there was an issue as to whether Bracha was truly
the entity with an interest and, therefore, satisfied the standing issue.
But I think with Hornbeam now added as a party, perhaps we need to
amend the initial order to reflect both as interested parties or
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 8 of 26
9
alternatively interested parties, but I think we satisfy any question
about whether there was an interested party with standing upon the
intervention of Hornbeam.
D.E. 51 at 8. Halliwel requested that if the district court was going to amend the
§ 1782 order, Hornbeam should be substituted in as the party entitled to discovery
in place of Bracha. The district court demurred from this request, describing it as
“a point without a real significant difference” because the issue before the district
court was “whether the subpoena to Regions [Bank] that was issued as a result of
this should be somehow withdrawn as a result of a vacated order.” Id. at 13.
After the hearing, the district court issued an order denying Halliwel’s
motion to vacate, but sua sponte quashing the subpoena issued to Regions Bank
and amending its original order to reflect the intervention of Hornbeam and to
narrow the scope of ordered discovery. The district court rejected Halliwel’s
argument against granting § 1782 applications ex parte, concluding that the use of
ex parte § 1782 applications is widespread, and even if the original proceeding was
ex parte, the district court held a hearing and amended its original order in light of
the arguments and submissions of all of the parties. With both Bracha and
Hornbeam as applicants, the district court concluded that “no reasonable dispute
currently exists” on the interested person requirement—it was met. D.E. 46 at 4.
The district court specifically declined to determine whether Bracha alone would
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 9 of 26
10
satisfy the requirement and the amended final order refers to both Bracha and
Hornbeam as applicants. See D.E. 47 at 2 (“The court GRANTS the application of
Bracha and Hornbeam as amended . . . .”). The district court was also satisfied that
Bracha and Hornbeam reasonably contemplated foreign litigation because the
contemplated BVI claims were distinct from the claims previously brought in the
Ohio state court suit, and the applicants also agreed to enter into a protective order
limiting the use of evidence obtained as a result of their § 1782 application to
foreign proceedings.
After the Ohio state court dismissed Bracha and Hornbeam’s suit to prevent
the sale of Warren Steel based on the internal affairs doctrine and forum non
conveniens, Halliwel moved under Rule 60(b) for the district court to reconsider its
decision authorizing discovery. The district court denied this motion. It concluded
that the “Ohio court rulings regarding the internal affairs doctrine and forum non
conveniens addressed in a lawsuit in Ohio,” were different from what the district
court had addressed in its prior rulings—“a § 1782 application for discovery in
reasonable contemplation of future litigation in the BVI.” D.E. 53 at 1.
III
On appeal, Halliwel raises five arguments. First, Halliwel argues that the
district court should have abstained from exercising jurisdiction over the § 1782
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 10 of 26
11
application due to the operation of the internal affairs doctrine. Second, Halliwel
argues that the application failed to meet two of the § 1782 statutory requirements
because one of the applicants, Bracha, was not an “interested person,” and also
because the discovery was not for use in a proceeding “within reasonable
contemplation” in a foreign or international tribunal. Third, Halliwel contends that
two of the discretionary factors identified by the Supreme Court in Intel militate
against granting discovery because the § 1782 aid was not necessary and
circumvented foreign proof-gathering restrictions. Fourth, Halliwel contends that
§ 1782, which partially incorporates the Federal Rules of Civil Procedure, does not
permit discovery prior to the filing of a foreign proceeding. Finally, Halliwel
argues that the district court abused its discretion in granting the § 1782 application
on an ex parte basis.
A
Halliwel’s first argument is that the district court erred in granting the
§ 1782 application because the proper application of the internal affairs doctrine
required the district court to abstain from ordering the discovery of documents
concerning Warren Steel from Regions Bank. As it did in its Rule 60(b) motion,
Halliwel relies heavily on the Ohio state court action, in which the Court of
Common Pleas of Trumbull County, Ohio, General Division, dismissed an action
by Bracha asserting the right of a shareholder under Ohio corporate law to view the
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 11 of 26
12
records of a corporation and seeking, inter alia, permanent injunctive relief under
Ohio corporate law to stop the sale of Warren Steel or any of its assets to named
companies. See D.E. 52-1 (Order in Bracha Foundation v. Warren Steel Holdings,
LLC, No. 2015 CV 1117, 2015 CV 1577 (Trumbull Cty. Ohio Ct. Com. Pl., Oct.
22, 2015)).
The Supreme Court has described the internal affairs doctrine as a “conflict
of laws principle which recognizes that only one State should have the authority to
regulate a corporation’s internal affairs—matters peculiar to the relationships
among or between the corporation and its current officers, directors, and
shareholders—because otherwise a corporation could be faced with conflicting
demands.” Edgar v. Mite Corp., 457 U.S. 624, 645 (1982) (citation omitted). The
Court has explained that the doctrine serves a number of important policy goals.
See CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 89–90 (1987) (explaining
that efficiency of national capital markets rely on the fact that the internal affairs of
corporations are generally governed by the law of a single jurisdiction).
However, not all litigation involving corporations triggers the internal affairs
doctrine. Rather, the litigation must involve the regulation of the internal affairs of
a company. See, e.g., Edgar, 457 U.S. at 645 (“Tender offers contemplate
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 12 of 26
13
transfers of stock by stockholders to a third party and do not themselves implicate
the internal affairs of the target company.”) (citations omitted).
Halliwel’s reliance on the internal affairs doctrine is without merit because
the instant § 1782 application does not attempt to regulate the internal affairs of
any company. As the district court below correctly observed, “the § 1782
application does not propose to litigate a dispute about Halliwel’s internal affairs
here in the Northern District of Alabama. Rather, the application is merely a
discovery device to obtain evidence here in the jurisdiction where the evidence
exists, and then to litigate elsewhere.” D.E. 46 at 9. See also D.E. 33-31 at 17–18
(Order in In re Application of Hornbeam Corp., No. 1:14-mc-00424-P1 (S.D.N.Y.
Sept. 17, 2015) (“This argument also makes no sense because a § 1782 request is
merely a discovery device not a pleading or means of actually litigating a dispute
about Halliwel’s internal affairs.”)).
Halliwel’s reliance on the Ohio state court judgment is similarly misplaced.
That case involved an action under Ohio corporate law asserting substantive
shareholder rights under that law and seeking permanent injunctive relief against
internal corporate decisions of a foreign corporation. The § 1782 order in the
instant case, in contrast, merely requires a third party, Regions Bank, to produce
various documents relating to Warren Steel. It does not presume to regulate
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 13 of 26
14
Warren Steel’s (or Halliwel’s) internal affairs or the relationships among or
between Warren Steel and its current officers, directors, and shareholders. The
internal affairs doctrine accordingly provides no bar to the district court’s exercise
of jurisdiction over the § 1782 application.
B
Next, Halliwel argues that the district court erred in granting the § 1782
application because the application failed to meet two of the § 1782 statutory
requirements: (1) that the application be made by “any interested person”; and (2)
that the requested discovery is “for use in a proceeding in a foreign or international
tribunal.”
1
Section 1782 requires that the discovery request be made “by a foreign or
international tribunal” or by “any interested person.” The controversy lies with
Bracha’s status as an “interested person.” The § 1782 application in this case—
unlike the ones filed in New York, Florida, Ohio, and Delaware—was filed by
Bracha. After the district court granted Hornbeam’s motion to intervene, the
district court expressly declined to decide the question of Bracha’s status as an
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 14 of 26
15
“interested person,” and yet, Bracha remained listed as a party entitled to § 1782
discovery.
2
Halliwel argues that Bracha does not meet the statutory requirement as an
“interested person” because it lacks standing to sue Halliwel in the contemplated
BVI proceeding. Halliwel cites to its expert’s affidavit, stating that “[u]nder §§
1841, 184 and 78 of the BVI Business Companies Act of 2004, only registered
shareholders have standing to bring derivative or direct ‘unfair prejudice’ claims.”
Br. for Appellants at 38 (citing affidavit of legal expert). Under Halliwel’s articles
of association, it maintains, Halliwel is not required to treat a transferee of a share
as a shareholder until the transferee’s name has been entered in the register of
shareholders. See id. Mr. Symeou (presumably in his role as Halliwel’s director,
and not its shareholder) has not recorded the transfer. Halliwel indicates that Mr.
2 Halliwel has repeatedly conceded that Hornbeam is an “interested person” until
recently. Now it argues that “Hornbeam’s dissolution . . . could conclude in less than three
years, disabling it from filing any claims, or it could lose its status as a registered Halliwel
shareholder as a result of the BVI execution proceedings, causing it to lose standing to bring BVI
§ 1841 claims.” Reply Br. for Appellants at 23 n.14. Bracha and Hornbeam, on the other hand,
argue that Hornbeam’s commencement of the voluntary dissolution process does not mean it can
no longer bring an action in the BVI for shareholder oppression. See Br. for Appellees at 29 n.11
(citing to representations by Mr. Symeou himself that Hornbeam continues to exist despite
dissolution proceedings).
We will not presume to determine what could happen between these parties in the next
three years. At this point in time, it is undisputed that Hornbeam is an interested party.
In addition, we note that any reliance by Halliwel on the outstanding BVI judgment may
be moot in light of the uncontested Rule 28(j) filing from counsel for Bracha and Hornbeam,
stating that “on August 24, 2016, Hornbeam’s BVI counsel issued a check in the amount of
$924,916.62 (representing the $846,526 cost order plus interest) to BVI counsel for Halliwel,
Symeou, and Marigold.”
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 15 of 26
16
Symeou is waiting for Hornbeam to pay an outstanding $846,526 judgment to
Halliwel that is remnant from Hornbeam’s prior unsuccessful suit in the BVI prior
to doing so. See id. at 9.3
Bracha and Hornbeam, for their part, contend that the district court did not
err in reserving judgment on Bracha’s status because it was sufficient that
Hornbeam was an interested person. In the alternative, they argue Bracha is an
“interested person” because its rights align with Hornbeam as the anticipated party
in the contemplated BVI suit. Moreover, they argue, “[e]ven if the relevant
standard were ‘participation rights’ under BVI law, a beneficial owner [like
Bracha] may bring a shareholder action under BVI law.” See id. at 31 n.13 (citing
to Halliwel’s expert evidence for support).
We agree with Halliwel that the district court’s decision to grant the
application to both Hornbeam and Bracha, without deciding whether Bracha was
an “interested person,” was an error. Section 1782 requires that the application be
made by an “interested person.” However, the Intel Court expressly rejected the
narrow construction of “interested person” advanced by Halliwel—that the term is
3 We note that this reason for delaying effectuating the transfer may be nullified. See
note 2, supra.
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 16 of 26
17
exclusively limited to litigants—holding that “[t]he text of § 1782(a) . . . plainly
reaches beyond the universe of persons designated ‘litigant.’” 542 U.S. at 256.
In Intel, a complainant before the Commission of the European
Communities qualified as an “interested person” despite its lack of status as a
litigant. The Supreme Court explained that the complainant was an “interested
person” within the meaning of § 1782 because it had a “significant role in the
process,” as the one who triggered the investigation, and also retained “significant
procedural rights,” such as the right to submit information for the DirectorateGeneral for Competition’s consideration and the right to proceed to court if the
Commission discontinued the investigation or dismissed the complaint. Id. at 255–
256. “Given these participation rights,” the Supreme Court held, the “complainant
possesses a reasonable interest in obtaining judicial assistance, and therefore
qualifies as an ‘interested person’ within any fair construction of that term.” Id. at
256 (citation, quotation marks, and brackets omitted).
The central question here, then, is whether Bracha—as a beneficial owner,
but not the record owner, of shares in Halliwel (the corporation set to be the target
of the contemplated litigation)—has sufficient participation rights in the
contemplated BVI (or other contemplated foreign) litigation so as to qualify as an
“interested person.” Because the district court did not decide this issue and there
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 17 of 26
18
are disputes of fact regarding BVI legal proceedings and arguments that are not
adequately developed by the parties on appeal, we find that remand is appropriate.
We therefore vacate the portion of the district court’s order granting § 1782
discovery to Bracha, but affirm as to Hornbeam. On remand, the district court
should determine whether Bracha is an “interested person.”
2
The third of the four § 1782 statutory requirements is that the requested
discovery must be “for use in a proceeding in a foreign or international tribunal.”
§ 1782(a). The foreign proceeding for which a court may authorize discovery need
not be “pending or imminent.” Intel, 542 U.S. at 259 (internal quotation marks
omitted). Rather, the statute requires only that foreign proceedings “be within
reasonable contemplation.” Id. Although “[t]he future proceedings must be more
than speculative,” it suffices that the district court has “‘sufficient indication that a
proceeding in court would eventuate in which the evidence gathered can be
weighed impartially.’” Application of Consorcio Ecuatoriano de
Telecomunicaciones S.A. v. JAS Forwarding (USA) Inc., 747 F.3d 1262, 1270
(11th Cir. 2014) (quoting In re Letter of Request from the Crown Prosecution Serv.
of the U.K., 870 F.2d 686, 691 (D.C. Cir. 1989)).
Halliwel argues that the district court erred in granting discovery because the
requested discovery was not “within reasonable contemplation.” Its main
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 18 of 26
19
argument is that the existence of an outstanding judgment of $846,526 in the BVI
against Hornbeam—remnant from Hornbeam’s prior unsuccessful suit in the BVI,
and the satisfaction of which is a requirement for Hornbeam to proceed with any
new BVI proceedings—prevents any future foreign proceedings from being
“within reasonable contemplation.” See Br. for Appellant at 32–33.
We hold that the district court did not abuse its discretion in determining that
future proceedings in the BVI were “within reasonable contemplation” despite the
existence of this outstanding judgment. Although Hornbeam cannot pursue new
litigation until it satisfies the judgment, there is no reason to believe it will not or
cannot pay.4 Bracha and Hornbeam have represented their intention to return to
litigation in the BVI and have articulated a theory upon which they intend to
litigate. Indeed, we suspect that the decision to satisfy the judgment and pursue
new litigation in the BVI may depend on its success in the instant § 1782 discovery
proceedings. For these reasons, it is clear that the district court did not err in
finding that the requested discovery is for use in a proceeding in a foreign or
international tribunal.
4 Again, we note this argument may be moot. See note 2, supra.
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 19 of 26
20
C
We turn next to Halliwel’s international comity argument. Halliwel
contends that the district court erred in concluding that the first and third Intel
discretionary factors favored discovery, and that it abused its discretion in granting
the § 1782 application.
The district court found that the first Intel factor—“whether ‘the person from
whom discovery is sought is a participant in the foreign proceeding,’” In re Clerici,
481 F.3d at 1334 (quoting Intel, 542 U.S. at 264–65)—favored granting
Hornbeam’s application because the entity from whom discovery is sought,
Regions Bank, was not a participant in the foreign proceedings. The district court
recognized that Bracha and Hornbeam might also be able to seek some records
directly from Halliwel in the contemplated BVI proceeding, but reasoned that a
BVI court would still have no jurisdiction to compel the production of evidence
from Regions Bank, a non-party financial institution located in the Northern
District of Alabama.
As to the third Intel factor—“‘whether the § 1782(a) request conceals an
attempt to circumvent foreign proof-gathering restrictions or other policies of a
foreign country or the United States,’” id. (quoting Intel, 542 U.S. at 264–65)—the
district court concluded that it also favored discovery. The district court credited
Bracha and Hornbeam’s explanation that, given their “lack of success in past BVI
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 20 of 26
21
proceedings,” they “needed to be armed with evidence to support their claims of
bad financial acts on the part of the proposed defendants, and that obtaining
financial records from a bank not located within the jurisdiction of BVI tribunals to
show inconsistencies and anomalies in those records could provide that support.”
D.E. 46 at 9. This was not, the district court concluded, an attempt to forum shop
and circumvent BVI evidence gathering procedures. See id.
On appeal, Halliwel contends that “the question is not, as the [district court]
found, whether the documents are located in a United States judicial district, but
whether they can be obtained from a party to foreign litigation.” Br. for Appellant
at 30. Halliwel argues that the district court abused its discretion because Bracha
and Hornbeam did not first attempt to seek the requested documents from Halliwel
in the BVI, and instead sought to obtain “Warren Steel records through the back
door.” Id. We are not persuaded.
As the Supreme Court explained in Intel, § 1782 discovery is more likely to
be justified when the person from whom the discovery is sought is not a participant
in the prospective foreign proceeding because “nonparticipants in the foreign
proceeding may be outside the foreign tribunal’s jurisdictional reach; hence, their
evidence, available in the United States, may be unobtainable absent § 1782(a)
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 21 of 26
22
aid.” 542 U.S. at 264. Here, it is undisputed that Regions Bank is not a participant
in the prospective foreign proceedings.
In addition, the documents sought in the subpoena to Regions Bank are
broader in scope than, and not clearly duplicitous of, documents that would be in
Halliwel’s (or even Warren Steel’s) possession in the BVI. For example, the
district court authorized the production of “[a]ll communications and relationships
with Related Party Lenders, Related Entities, and Related Individuals . . .
concerning Warren Steel, business transactions with Warren Steel, or loans to
Warren Steel.” D.E. 47 at 3 (emphasis added).
5 Thus, the district court did not
abuse its discretion in granting an application seeking domestic documents in the
possession of a domestic party that would not be available in the foreign
jurisdiction. Cf. Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 81–
84 (2d Cir. 2004) (finding the first Intel factor weighed against discovery where
German investors could seek the same documents from the German company in
the German litigation as the investors sought to discover from the law firms
representing the German company in a similar litigation commenced in the United
5 The definitions of “Related Party Lenders,” “Related Entities,” and “Related
Individuals,” include many parties unfamiliar to this Court, including Divot Enterprises Limited,
CC Metal and Alloys LLC, Felman Trading, Inc., and Optima Acquisitions, LLC. See D.E. 47 at
3 n.1.
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 22 of 26
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States). Finally, we note that we have previously upheld discovery under § 1782 in
the context of intra-shareholder disputes. See Weber v. Finker, 554 F.3d 1379
(11th Cir. 2009).
Other courts have held that even when the requested documents may be
available in the foreign jurisdiction, there is no requirement to first seek discovery
from the non-US tribunal or exhaust other options before applying to a district
court for § 1782 discovery. See In re Malev Hungarian Airlines, 964 F.2d 97,
100–101 (2nd Cir. 1992) (rejecting a “quasi-exhaustion requirement” because
“requiring an interested person first to seek discovery from the foreign or
international tribunal is at odds with the twin purposes of 28 U.S.C. § 1782 . . . . It
would undermine the policy of improving procedures for assistance to foreign and
international tribunals by imposing an additional burden on persons seeking
assistance from our federal courts for matters relating to international litigation.
Additionally, it would undermine the policy of prompting foreign courts to act
similarly based on our own generous example.”); In re Bayer AG, 146 F.3d 188,
195–96 (3d Cir. 1998). We too decline to adopt such a requirement.
In sum, we discern no abuse in the district court’s decision to permit
discovery based on the Intel discretionary factors.
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 23 of 26
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D
We turn next to Halliwel’s argument that the district court erred by
authorizing pre-filing discovery. Specifically, Halliwel argues that the district
court erred because § 1782 incorporates the Federal Rules of Civil Procedure and
the Federal Rules do not generally permit pre-filing discovery.
This argument appears to misunderstand the relationship between § 1782
and the Federal Rules of Civil Procedure. As we have explained,
The district court’s authority to order [a person residing or found in a
district] to give testimony “for use in a proceeding in a foreign . . .
tribunal” stems from § 1782. 28 U.S.C. § 1782(a). Section 1782(a)
then provides that, in its order granting § 1782 assistance, the district
court “may prescribe the practice and procedure . . . for taking the
testimony or statement or producing the document or other thing.”
Id. (emphasis added). This “practice and procedure” may be “in
whole or part the practice and procedure of the foreign country or the
international tribunal.” Id. To the extent that the district court does
not otherwise prescribe the practice and procedure, § 1782(a)
provides that “the testimony or statement shall be taken, and the
document or other thing produced, in accordance with the Federal
Rules of Civil Procedure.” Id.
In re Clerici, 481 F.3d at 1335–36.
In other words, while the Federal Rules of Civil Procedure provide the
default “practice and procedure” in which § 1782 discovery is be taken, the
statutory authorization for district courts to compel discovery for use in foreign or
international proceedings comes not from the Federal Rules of Civil Procedure but
rather from § 1782 itself. See id. at 1336 (“Section 1782(a) refers to the Federal
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 24 of 26
25
Rules, not for whether the district court can order [a person] to give any testimony,
but only for the procedures or manner in which that testimony is to be taken.”).
Accordingly, we look to § 1782, and not to the Federal Rules of Civil Procedure, to
determine whether § 1782 discovery may only be authorized after the filing of a
foreign proceeding. Section 1782 contains no such requirement.
E
Finally, we reject Halliwel’s argument that the district court erred in
granting the original § 1782 order ex parte. The district court quashed the
subpoena issued to Regions Bank pursuant to the original ex parte § 1782 order,
and amended the original § 1782 order following full participation of all of the
parties. Therefore, this argument is moot. We furthermore decline Halliwel’s
invitation to entertain this argument on the basis that “in the future [Bracha and
Hornbeam] may file new ex parte applications.” Br. for Appellants at 40 n.11.
IV
USCA11 Case: 15-14913 Date Filed: 09/22/2016 Page: 25 of 26
26
For the reasons discussed above, the district court’s order granting Bracha
and Hornbeam’s § 1782 application is AFFIRMED with regards to Hornbeam but
VACATED to the extent that it grants discovery to Bracha. We REMAND for the
district court to determine whether Bracha is an interested party.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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