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Q: How to get a sigmoid function between 0 and 1 for probability of correct answer? I am trying to simulate some data where a response can either be right (1) or wrong (0). I am thus trying to find a distribution in which there are four conditions (in this case degrees of a circle).
Thus, the x axis is pi/2, pi, pi1.5, 2pi. I have normalised this from 0 to 1 to make this easier. On the y axis I would like the probability of answering correct so is 0-1 or 0-100 etc. I am trying to generate/plot a sigmoid function such that the probability is higher when the condition is closer to 1 and lower when the condition is closer to 0.
I cannot seem to be able to generate the sigmoid between 0 and 1, it just gives me a straight line unless i set x = np.linspace (-10,10,10). How can I do this? The code I currently have is below. Thank you!
I was originally going to use a beta distribution as this is better suited (as it is degrees around a circle) but cannot seem to get it into the shape I want. Any help would be greatly appreciated!
def sigmoid(x,x0=0,k=0.5):
            return (1 / (1 + np.exp(-x)))
x = np.linspace(0,1,10)

A: As you are happy with normalising to the range [0,1], consider normalising to [-1,1]
import numpy as np
import matplotlib.pyplot as plt

def norm(x):
    # normalise x to range [-1,1]
    nom = (x - x.min()) * 2.0
    denom = x.max() - x.min()
    return  nom/denom - 1.0

def sigmoid(x, k=0.1):
    # sigmoid function
    # use k to adjust the slope
    s = 1 / (1 + np.exp(-x / k))
    return s

# un-normalised data
x = np.linspace(-4,+4,100)
# normalise the data
x = norm(x)

plt.plot(x, sigmoid(x))
plt.show()


THE MODERATOR: Good evening. We have University of Michigan on the dais. Coach, general comments about the game?
CAROL HUTCHINS: Just what a great game. What a pitchers' duel, what a gutsy performance by really both pitchers. And in a game like that, and I told the kids late in the game there, you know, you've got to stay tough, and toughness is not allowing yourself to go mentally in the wrong direction, to start worrying about, oh, we haven't scored runs or to extort worrying about anything, just staying tough and staying in the moment, and I thought we did an outstanding job of that, and it just really came down to a timely hit, but some really key bases in that inning, in the bottom of the sixth.
I thought LSU played outstanding, and (Allie) Walljasper was outstanding, but we were outstanding, as well, and again, Megan Betsa gave us a great chance to win, and that's why we're sitting up here.
Q. Coach and Megan, LSU had a little something going, I think it was in the fifth, first and second, nobody out, and you had a long talk with Megan. What was the message, and what did you do to bear down and get those outs to end that threat?
MEGAN BETSA: She came out there and just asked me if I was calm, and I told her no. She just told me, reminded me that I needed to be calm and trust my spin and trust my defense and let them work behind me.
Q. Tera, talk about how you may have changed your approach with the new pitcher coming in. Did you have to adjust quickly? And then also take us through the emotions when you saw that ball taking off your bat.
TERA BLANCO: I mean, I just went up there, I was looking for a good pitch to hit and get it out in front. She throws hard and I was just looking to hit the ball on the ground. I was really excited when I saw the ball off my bat, and I'm pretty sure everyone else was, too. And I think the energy of my team and Megan just throwing her game made everyone more excited.
Q. So just your approach didn't change then? The pitcher wasn't so radically different?
TERA BLANCO: They were a little different, but just see ball, hit ball basically.
Q. Coach, it appeared that a lot of their players were swinging early in the count. Was that part of the game plan going in against Walljasper?
CAROL HUTCHINS: A lot of our players were swinging early in the count? I thought the first few innings we weren't swinging at all, and I thought we were pretty focused on her changeup, which was excellent, and let it get in our head a little bit, and I wanted us to go up there and hit the fast one, whenever it was, and then late in the game we did start swinging early, and it was effective as we had a few hits and got something going. But you know, we definitely — she did an outstanding job against us, and we needed to attack by just simply hitting the fast pitch and not thinking. We're not very good at that thinking thing.
Q. Megan, the strike zone looked like it was shrinking for you in the middle part of that fourth, fifth inning. It looked like there were some pitches that were called balls.
MEGAN BETSA: I didn't notice. Obviously I want every pitch called a strike, so if it's anywhere near close, I'm going to react, but I thought it was in the strike zone.
CAROL HUTCHINS: I thought she was outstanding behind the plate. I hope we have her again.
Q. With the one-day delay were there any little jitters or tightness going on at the start?
KELLY CHRISTNER: I don't think so. Today we went out and hit for an hour before, just to kind of loosen up, feel good, and I think we were just even more excited to get out there and play.
Q. Kelly, can you talk about your at-bat in the sixth? There were a lot of pitches that you looked at that went by, and then finally you were able to take a swing and get a hit.
KELLY CHRISTNER: Well, yeah, early in the at-bat, I was looking to bunt, just to move (Sierra) Romero over, and she was throwing balls, and then with a 3-0 count, especially in that situation you're taking, and then we decided to also take on the 3-1 because if she throws another ball then it's first and second, no outs. And I'm so comfortable with a two-strike at-bat, I was just looking for that pitch to hit because I knew she was coming with another one.
Q. Can you also talk about on the next couple at- bats when you were on first and Tera was at the plate, can you talk about what you felt like after she hit the ball and you saw it was going fair?
KELLY CHRISTNER: Yeah, well, I was on second. I was on first for Kelsey's (Susalla) and then she walked so I was on second. Right whenever I saw it, I thought, 'Please get over her head, please get over her head,' so I was looking to tag up at second base, and then I saw that it was over, and I was like, just run fast and get home and help my team get some runs.
Q. Megan, what was working particularly well for you tonight?
MEGAN BETSA: Well, earlier on in the game it looked like they prepared for my rise and not really for my change, so I was just using that to my advantage, making sure I was throwing it low in the zone and keeping my whip just to fool the hitters, and it obviously worked.
Q. And you mentioned that — she asked you if you felt calm and you said you didn't. Did you quickly find that calmness after that?
MEGAN BETSA: Yeah, I just took a deep breath. We huddled back as our infield huddle and I was just ready to attack the next hitter and get out of the jam.
Q. You touched on the at-bats that your hitters had in that inning, and Kelsey particularly fell behind 0- 2 and then worked the full count and got the walk. Talk about her at-bat and what that meant to the inning and just the patience that your hitter showed there.
CAROL HUTCHINS: Well, it's just one of our philosophies is just to be a base. Find a way to be a base because whether you get a hit or you get walked, they make an error, any time you're on base you have a chance to score. Give her credit for being 0-2 and finding a way not to swing at her pitches and make her throw it where she needed to. Kelsey is a dangerous hitter and it was a good at-bat for her.
Q. Megan, I just want to ask about OU and how you handle a team like that where all those hitters can hit the ball over the fence?
MEGAN BETSA: Well, I throw a lot to my own hitters, and I think we have one of the best offenses in the country, and I'm pretty successful doing that, so I think if I can beat my own hitters, I can beat anyone in the country.
Q. I noticed you all had MLE written on your arms. What does that stand for?
CAROL HUTCHINS: Lymphoma. She was diagnosed with lymphoma in 2007, and she came to one of our softball games and Jess Mendoza said you need to go meet the softball team and she introduced herself. When I asked her what she did for a living, she said, well, I have cancer. She's spent her whole life fighting it, and she's been able to be a part of our program for a few years, and we often bring her on a lot of these trips, and she was supposed to come with us on this trip. She was very sick the day we left so she couldn't come, so this was our way of honoring her. But she was in our dugout tonight. She felt better, and I'm convinced that's why we didn't play last night, because we were waiting for her.
Q. Megan, you keep hearing Hutch week after week talking about how gutsy you are. Are you learning something about yourself the way you're pitching in these postseason games?
MEGAN BETSA: Yeah, I'm learning that I am a lot better than I ever thought I would be. I have a great team behind me and they put themselves out there for me and I just realized I need to do the same and give me all, and whatever at the time is good enough.
THE MODERATOR: Coach, we'll start with general comments about the game.
BETH TORINA: I thought our team did some things really well. I think there's some things we could do better. I think Michigan's pitcher threw a great game against us. She gets a lot of the credit for their victory today. I thought our pitching staff did a good job, our defense did a good job of holding a really tough offense down for a long time, and we just never really got the timely hit. They made big pitches in big moments and that's what great pitchers do. That's why Michigan is here, that's why they're ranked what they're ranked, why they only have five losses on the season, because they do a good job in big situations.
Q. Coach, can you talk about what went into the decision to change pitchers and go with (Cailey) Hoover?
BETH TORINA: Yeah, sort of before the game, that was the plan, that we were going to use multiple arms against them because we thought they had a big offense and a big threat. Trying to keep them off balance with different looks was the plan going into it, and I thought it was a good time for it to happen. Carley has been great in relief. I'd go to her any day of the week, all the time. I'm 100 percent confident in her. Still right now I wouldn't change a thing I did.
Q. Coach, some of the missed scoring opportunities, perhaps a little bad luck, too, the chopper that backed into Bailey (Landry) in that one inning and then Bianka (Bell) after that?
BETH TORINA: Yeah, I didn't think a lot of things went our way. It was a different game and a different strike zone, not anything was bad or good, just elevated more than we would like it to be. I think in a different zone on a different day it's a completely different ballgame. We really didn't get any breaks. Obviously we make our own breaks, too, and we didn't make a lot for ourselves, but we didn't get the ball to bounce the right way at any point, either.
Q. Just having to come back in the early afternoon game tomorrow and facing a tough Bama team, obviously, what are your thoughts?
SANDRA SIMMONS: I think we've shown all year that we can fight. So I think if we come out and play our game and not press, because we're now in the losers' bracket, we're going to be on a really good side. We haven't had time to prepare for Alabama, but we have played them in conference this year, so I think we're going to be able to go back and look at that stuff and make up a plan pretty quickly, and come out and play our game and keep fighting like we have all year.
KELLSI KLOSS: I think any time you play Alabama, whether it's just a regular-season game or an elimination game in the postseason just like we had last year against them, it's just a really hard fought game. They play with a lot of passion and emotion and I think we play hard just like they do. I think it's going to be a good game, but we're just really well prepared for whatever comes our way. We've been in this spot before with our backs against the wall many times and we've come up on the winning end, so I think our team is ready for the challenge.
Q. And Beth, the preparation it's a quick turnaround?
BETH TORINA: It is, but it's an opponent that we've seen before. I hate that we're having to see them now. I wish we were seeing the SEC teams later. I know we've got all the SEC teams playing each other tomorrow. It's the point of year when we want to pull for each other not be against each other, but at least it's a team we've seen, we've prepared for them, we have information on them, so we'll be ready to go. I know they're a little different than when we saw them, but we'll try and bridge the gap a little bit and be ready to go. I think it's a tough spot to be in for our team, but if any team can handle it it's ours. We have the pitching staff for it. We've been with our backs against the wall. It's a spot where we've seemed to thrive in the past, so if any team can handle it, it's this one.
Q. Talking about umpiring can sound like sour grapes, but a lot of your fans have been talking about it. Was it consistent or did you feel like it got tighter in the later innings?
BETH TORINA: I just thought it was a tough zone for Allie to work in. It was just a little bit elevated. She's a down pitcher and it was a little higher than we would have liked it to be. But it is what it is, and every day you get a little bit different strike zone, so it's a little bit — the game changes depending on the zone that you get. I don't think it's something that is good or bad, I just think it's something we've got to coach through. I think that's part of the game. It's actually part of the game that I've truly enjoyed is the human element of this game. I love that part of it.
We had to figure out how to work in that zone. Allie did a really good job of making the adjustment after the first inning, I thought, of working in what it was, and I think she moved forward from it.
No. 2 seed Michigan defeated No. 10 LSU, 2-0, in the second game of session two at the 2016 Women's College World Series. The Wolverines improve to 52-5 on the season, while the Tigers fall to 50-17.
No. 2 Michigan is making its 12th Women's College World Series appearance. With the win, the Wolverines hold a 14-22 all-time record at the tournament.
The No. 10 Tigers are making their fifth WCWS appearance and second consecutive, marking the first time in school history the team has made back-to-back trips to OKC. LSU is 8-9 all time in WCWS games.
The contest between Michigan and LSU, which was originally scheduled for Thursday, June 2 at 8:30 p.m. CT, was postponed until Friday evening due to inclement weather.
With the win, Michigan advances to take on No. 3 seed Oklahoma on Saturday at 8:30 p.m. CT. LSU's loss pits it against No. 6 Alabama on Saturday at 1:30 p.m. CT.
The contest was a pitcher's duel, as the teams remained scoreless until the bottom of the sixth inning when Michigan posted the only two runs of the game.
Michigan pitcher Megan Betsa got the win in the circle, posting her third 7.0 inning complete-game shutout of the season in the contest. Betsa, who improved to 28-3 on the season, allowed no runs on four hits and struck out seven.
Michigan sophomore Tera Blanco blasted a two-run double down the right-field line in the bottom of the sixth inning to score Kelly Christner and Sierra Romero and give the Wolverines a 2-0 lead and the only runs of the game. Blanco went 2-for-3 at the plate and posted two RBI on the evening to lead Michigan.
Allie Walljasper, who falls to 11-6 on the season, took the loss for LSU, allowing two runs on four hits and walking three in five innings pitched. Carley Hoover relieved Walljasper, pitching one inning and allowing no runs on one hit and striking out two.
The second-session attendance was 9,041, marking a new session two record.


Writing is not easy for me and, I dare say, for most people. I live in a world full of journalist; tortured souls every one. But they do talk and they talk a lot; about their stories and of course, themselves. It's this meandering conversation through the news of the day, the office gossip, the lives of their children and finally their stories, that color the work they do. Not so long ago, if you walked through a newsroom, it was full of chatter, writers clustered together, groups crammed into offices or on the phone. It looked like nothing was getting done; a room full of procrastinators. But talking about ideas and defending them, in other words brainstorming, is a crucial part and for some the best part, of the writing process. Besides, even people who write for a living, sometimes find that sitting down to write can be the hardest part of the process.
Camilla, your ideas about brainstorming resonated with me. I fine that there is an awful lot of "stewing" that goes on before I actually put pen to paper, or fingers on keyboard. This can often feel like a glorious distraction, or a prolonged procrastination, and not bear much or any resemblance to the act of writing. Yet in the end it always serves the process, however indirectly.


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Board index » All Posts (JohnThieroff)
JohnThieroff
Re: Woman Hit by Car - Grove & Montgomery - Sunday @ 7:00pm
In theory, yes. But Grand is a disaster. Traffic backs up east bound in the mornings and westbound in the evenings. People try to turn right into standstill traffic in the evenings,which exacerbates the tie-up and frustrates those trying to turn left from Grand onto Marin. About every other light cycle ends with gridlock for five to ten seconds as a result, leaving pedestrians little time to scurry across Grand because the light for those on Marin is short.
The better answer would be traffic enforcement, but since we know that is never going to happen in a meaningful, consistent way, this is a good start.
Terrible. I hope the woman is okay and recovers fully.
Along these lines - a note of thanks to the city, and councilman Solomon, in particular, for the newly installed and much needed No Turn on Red signs at each of the four directions of the Marin and Grand intersection. Pedestrian life expectancy just went up a few years.
Re: Grillo's Campaign Office
annieruiz wrote:
dark contributions? why dont you do an analysis of James Solomon's ELEC and tell me what you find. Because I can tell you what I found, which is that he hired Pablo Fonseca....the same Pablo Fonseca who was involved in his own version of bid rig in Newark, much like Muhammed Akil
http://www.nj.com/news/index.ssf/2010 ... official_facing_corr.html
He then returned some money to Pablo because he has to keep up the facade that he's JC new white knight, coming in to save all of us from the depths of development hell. PUH-LEEEZZ
I have no dog in this hunt, but to read something nefarious into a returned campaign contribution is making some pretty big assumptions. Campaigns are not well-run, well-staffed organizations with excellent controls and highly functioning systems. At the local level, they are almost always run and peopled by well-meaning volunteers who may or may not know all of the regulations.
Every campaign gets contributions at fundraisers that either exceed the cumulative level, are in violation of pay to play, come from people they'd rather not be associated with. Many people come in the door at these events in a wave and someone sitting at a table at the entrance is just trying to get forms filled out and keep people moving. The real test isn't whether or not a campaign received something they shouldn't have, it's how these contributions are handled when they do. The money was returned.
I think the Ward E race is one of the most interesting contests we've had around here in a while. The fact that the mayor hasn't endorsed anyone makes this a level playing field. Each of the four candidates is well-qualified and brings particular strengths to the race. It's a difficult thing to run an effective campaign for office - I salute anyone willing to put themselves out there. By all means, support your candidate of choice however you see fit; it's just too bad so much energy is being spent tearing everyone else down.
Re: I-Team: FBI Investigates Alleged Corruption in Jersey City Police Department
The biggest complaint from the MUA officials were the payments made to off duty cops.
It still is, Yvonne. When I was on the board, I was amazed to see contracts where as much as 25% of the cost was for off-duty cops to stare into the hole. The most outrageous example I saw was one where work was being done at the end of a dead-end street and the cops insisted there needed to be a guy there. Councilman Fulop used to give lip service to this issue, but nothing is going to change until its drummed out of the police contract. As it stands now (unless its changed in the past year), the sole arbiters of whether there needs to be a cop at a site (and how many, whether its 24 hours a day, etc.) are the cops. They decide what is and isn't a public safety issue and then inform the construction company, MUA, et al how many people they will require.
Re: NJ Arts Council funding abysmal for Hudson County once again
Great points, Sam. While it is tempting to leap first to the political - since political gamesmanship, incompetence and/or corruption is at the root of so many things New Jersey - it has always seemed to me that the many disparate and frequently unorganized/poorly conceived entities competing for severely limited and highly contested resources puts Jersey City at a distinct disadvantage. So much noise, so little direction.
Where local government could do a better job is in providing dedicated professional leadership to help work with the arts community and develop a vision of what Jersey City can/should be, rather than short-term, ready/aim/shoot responses like mural programs conceived of and administered by well-meaning folks with no tangible connection to the arts and who are often in over their heads. A sustainable, wide-spread high-quality arts and cultural presence is what ultimately will give the city its definition and sense of place rather than a city in a semi-permanent state of transition.
Re: proposed pay to play reform expansion
There is a great need for this reform - from my time on the MUA board, I would say that paying to play is standard there. Most people don't realize the amount of money that moves through that agency and the size of the contracts it awards - the annual budget is ~ $120 million.
Keep up the push, Dan, Aaron et al.
Re: Your Casino Input Wanted - From Mayor Fulop
And I'm curious, how is torching Norcross in public an example of "political expedience?"
It isn't. It's an example of either not having someone around him to tell him "no" or his unwillingness to listen to "no":
JohnThieroff wrote:
The thing is, though, he seems to have lost the ability to override that instinct when necessary and there doesn't seem to be anyone who tells him no, at least not that he listens to. (The Norcross email a few weeks ago is a great example.)
I have to say, I just adore the unfalsifiability of extreme cynicsm. :D
No more adorable than willful naivete or trying to hard to condescend. If you don't understand what's going on (or choose to subscribe to your own facts) but still feel the need to comment, that's an option, I suppose. Having spent the better part of five years with the man on a pretty much daily basis, I can tell you flatly and without qualification that political expedience are the first three instincts that fire in him when presented with information. And you know what - more often than not, it serves him well. He's good at it. The thing is, though, he seems to have lost the ability to override that instinct when necessary and there doesn't seem to be anyone who tells him no, at least not that he listens to. (The Norcross email a few weeks ago is a great example.) That's my experience. What's yours?
sranade wrote:
I really wish this was about getting input, but it's paid for by his campaign. If he was looking for feedback then he would run this from his office and his staffers would see the input. This goes straight to his election campaign, will get used to get email addresses, and it's a big question mark if anyone ever reads the actual submissions.
That's exactly right, S. What makes it even more disingenuous is that the mayor had already staked out a strong position in favor of a casino in Jersey City before flip-flopping back out of political expedience. In addition to harvesting email addresses, the survey is also a way to paper over the flip flop by being able to point to "the will of the people."
(and honestly, with all of his resources, I'd thought he'd find a better writer to do these things for him by now....)
Re: Jersey City council to vote on controversial MUA franchise fee changes
Actually, the surplus is due almost entirely to an increase in sewer rates in 2010. Prior to then, the sewer fund ran at a loss and the water fund ran at a surplus and the two more or less balanced each other out.
With the large 2010 increase and subsequent 3.75% annual (automatic) rate increases, the MUA is generating very large surpluses - cumulatively in the neighborhood of $60 million, currently. While the MUA does fund some capital improvements internally (i.e. without borrowing), much of its capital spending qualifies under NJEIT programs that provide loans at 1%, sometimes less - even interest free at times. These programs also occasionally come with partial principal forgiveness. From a capital efficiency standpoint, it makes sense to utilize the NJEIT money when available. So spending the surplus indiscriminately on capital projects might not be the best way to go.
I voted against the increased franchise fee (along with Commissioners Matthias and, initially, Balmir) for several reasons. First, while there is ready acknowledgement among all involved that there is a substantial and growing surplus, there is no immediate plan to curtail it. Grabbing a larger franchise fee with a promise to do a rate study "next year" doesn't cut it, in my book. I felt the rate study should have preceded any change to the franchise fee because by doing it the way being proposed, the higher franchise fee gets baked in to the rate study and it becomes an artificial layer in the rate structure (a "backdoor tax", as the late Councilman Fulop would have declared.)
Second, what was discussed in terms of future rates wasn't a rate reduction but a reduction in the future rate increase. (from 3.75% to 2%.) Without an identified plan for the surplus and absent an imminent rate study, I couldn't support a franchise fee increase.
Finally, as with many things at the MUA, the proposal was presented with little advance notice and a false urgency that it needed to be done at that meeting (October) "so council could vote on it and it would be done before year-end." There is no reason that I know of why it needs to be done by year end. The city budget doesn't get done until well into the second half of the year each year. An informed debate would have benefitted everyone rather than jamming something through in a grab by the city.
So what to do with the surplus? One idea that surfaced last night would be to begin separating the combined sewer system in areas where storm-related flooding is most severe (to enable rainwater to be dumped straight into the river.) Another would be to accelerate replacement, repair and compliance-related projects for which EIT funding is not available. And yes, some sort of rate cut - at a minimum we should be talking about eliminating rate increases for the near term.
Re: Fulop, MUA, and the Spirit of the Law
I wasn't involved in the initial bidding process (I joined the commission in February.) Since I wasn't part of the initial discussions around the contract or the bidding process - I abstained from the vote on whether or not to increase the amount of their contract.
Re: Chris Christie's downgrades start to pile up
So, you're not fauxraged that an 'independent' authority, chaired by Fulop's campaign manager, rigs the bidding process so that a company (not a law firm, btw) who made large donations to Fulop's campaign, gets awarded a sizeable contract, that later gets amended to double the size of the contract (so far).
You should re-read the article.
Re: Mike Razzoli is finally out!!!!
donnajc65 wrote:
He appointed a Deputy mayor and said he was full time, it turns out he was running a consulting business out of the mayors office.
Really? Tell me more.
Re: 400 Unit Development in Hamilton Park
K-Lo wrote:
What is not clear to me is whether anyone is looking beyond the immediate impact of these larger buildings. What does it cost to support thousands of additional human beings in firefighters, police, teachers. Does the city have this mapped out somewhere?
A cost/benefit analysis that looks at all of these issues, plus others (like trash pickup) is performed for all abatement applications. It is included in the financial agreement.
A building this size wouldn't have "thousands" of additional human beings and the incremental costs of these new residents is likely to be far less than $1.2 million a year.
Re: 35-year tax break proposed for three-tower Journal Square project
The previous administration gave 30-year abatements to Crystal Point (on the waterfront) and MEPT (Journal Square), among others. Both were market rate.
Re: Jersey City Democratic Committee election a proxy Healy-Fulop battle
A big thank you to anyone who may have read my post and voted for me in District 6 yesterday! My running mate, Hope Cannon, and I won by a very comfortable margin and really appreciate all the support we received. Also, I know that the Democrats for Jersey City candidates from Districts 4 and 5 (we all vote at the same place) won as well.
Hello, I'm John Thieroff and I'm running for a seat on the Democratic Committee in Ward E, District 6 with the Democrats For Jersey City. I live in Gull's Cove and am active in the community - I serve as a trustee on the board of CivicJC, I have worked closely with NoGasPipeline to get Spectra to move their planned pipeline into the river, and I have worked with Councilman Fulop on a number of legislative issues pertaining to quality of life issues.
My running mate, Hope Cannon, and I are running as Committee People so that we can advocate for our neighborhood. We want to make sure that as downtown continues to grow that the Van Vorst Park and Liberty Harbor communities will be heard and their needs will be met, particularly with regard to issues such as:
- Pedestrian safety
- Property Revaluation
- Enforcement of vehicular traffic laws
- Litter
If you live in District 6, please vote 10D and 11D - HOPE CANNON and JOHN THIEROFF - for Democratic Committee tomorrow. The polls are open from 6am to 8pm and our polling location remains at PS 3 - 111 Bright Street. Feel free to contact me directly at jthieroff@gmail.com if you have any questions or issues that you feel are unresolved and need attention. When you vote tomorrow - stop and say hi. I'll be there most of the day, handing out my cards!

redpajama_set_name: RedPajamaCommonCrawl


text:
https://warriorswire.usatoday.com/2017/11/18/watch-warriors-complete-crazy-32-point-turnaround-against-76ers/
Watch Warriors complete crazy 32-point turnaround against 76ers
Chris Biderman
The Warriors tied their biggest halftime comeback in franchise history Saturday night in Philadelphia when they exploded from down 22 points to beat the 76ers, 124-116.
It was possible because they had a ridiculous 47-15 advantage in the third quarter, spurred by a 20-point outburst from Stephen Curry. Check out video of the comeback below.
The @warriors scored a scorching 47 total Q3 PTS in their comeback victory! #DubNation pic.twitter.com/dYjaxV10Mk
— NBA (@NBA) November 19, 2017
Curry finished with a game-high 35 points after struggling during the loss in Boston Thursday when he logged just 9 points on 3-of-14 shooting.
Kevin Durant Saturday added 27 and Draymond Green had 8 points, 8 assists, 7 rebounds, 2 blocks and a steal. Klay Thompson scored 17 and David West added 14 off the bench while going 7 of 8 from the floor.
Golden State outscored the upstart 76ers in the second half, 72-42. Big man Kevon Looney finished a team-high plus-19 during his 9-minutes of action. He had 2 points, 5 rebounds, 2 assists, a steal and block while getting most of his run in that explosive third quarter.
The Warriors look to create their next winning streak with a quick turnaround Sunday in Brooklyn.
Stephen Curry says comments about Celtics going to Finals were taken out of context


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Hope for Horror: Support Independent Cinemas!
We hope that this post finds all of our Brewligans in good health and hopeful spirits! We, like most of you, are just doing our best to keep afloat, stay busy and occupy ourselves with things more positive than we see in the news. It is important that we all take the impact and continuing threat of this COVID-19 pandemic very seriously, however we also shouldn't lose our focus on what comes "after" while we are stuck in this mess "now".
With this in mind, the great guys at Horror Movie Talk Podcast and our good friends at The Scariest Things Podcast have started the ball rolling on looking forward to the impact that the social distancing mandated closures will have on the businesses that bring us what we love most…quality, independent horror movies. We couldn't be more proud than to join them and all of you, our Pacific Northwest horror communities, in finding ways to save local, independent cinemas and theaters!
It is easy to take for granted the midnight showings of a beloved fright flick, the limited release of an inventive and unique cinematic voice, the double features of b-rated monster movies, the newly restored genre classics returning to the big screen and of course the horror film festivals that we anxiously await all year long. These events are not the work of AMC, Cinemark, Marcus or Regal! These are the heartfelt contributions of businesses owned and operated by members of our own communities and staffed with passionate film lovers just like us. Together we can and must ensure these businesses survive!
The Scariest Things Podcast has been hard at work on an expanding list of independent cinemas around the country which support the horror genre and give back to the fans in the way of curated picks and horror festivals. They are also wanting feedback from YOU about the local cinema that means something special to you and your community!
Instead of simply covering the same ground, we encourage you to visit their updated list of cinemas and their histories here: The Scariest Things: Save our Independent Cinemas!
Reach out to them at info@scariestthings.com to suggest a cinema that needs saving near YOU.
Below you will find just a few of the local cinemas that we at Dread, Fright & Brew Horror Podcast hold near and dear to our hearts. We hope that all of our Brewligans are able to come together in this effort and prove that the horror community is strong, passionate and supportive of our own!
Let's bring some Hope for Horror!
–Aaron, Lee, Grace & Juan
Joy Cinema – Tigard, Oregon
Joy Cinema Scare-A-Thon is one of our favorite experiences every year! But the Joy Cinema isn't making us wait for the weird during these troubled times. "The Weirdness will not go away! Follow us on Facebook for info on our WEIRD WEDNESDAY REMOTE Watch Parties! It's your chance to join in and watch some truly bizarre movies and chat with friends. See our Facebook page for updates and details every week.
Gift Cards: Click Here
The Hollywood Theater – Portland, Oregon
"The Hollywood Theatre is a Portland landmark with a national reputation for award-winning film programming, innovative educational programs, and providing fiscal support for local filmmakers. We show classic and contemporary films, host live performances and special guests, and produce innovative film series like Queer Horror, B-Movie Bingo, and Kung Fu Theater."
MERCHANDISE: Click Here
MEMBERSHIP: Click Here
The Academy Theater – Portland, Oregon
"Originally launched in 1948, the Academy Theater was a popular Montavilla destination until its closure in the 1970s. Over the following years, it fell into disrepair, but a full-scale renovation was completed in 2006, including careful restoration of the glittering rounded lobby with its soaring, metallic two-story dome. Great attention was paid to every detail of the project. Using vintage photos from the original opening night, even the theater's signature marquee has been recreated to imbue the building with authentic 1940s charm. …Our hope is that when people enter the lobby, they won't just feel like they have stepped back in time, they will feel like they've actually stepped back into a gloriously colorful 1940s movie."
Cinema 21 – Portland, Oregon
"Built in 1926, its original name was The State Theater. The venue showed silent films with live organ and had an orchestra pit for musical accompaniment. Over the decades it's been called The Vista, 21st Avenue Theater and finally starting in 1962, Cinema 21. In 2013, two additional screens were added in the adjacent space with a new concessions bar and restrooms in the lower lobby. The original theater was renovated with new seats and screen, projection and sound equipment, carpeting and paint in 2014."
The Beacon – Seattle, Washington
"The 50-seat theater is a new addition to Seattle's cinema scene, co-founded by Tommy Swenson and Casey Moore. They screen an eclectic, curated selection of both new and old, avant-garde and mainstream films."
No Gift Cards / Merch Currently – Show them some love and business when they reopen!
Blue Mouse Theatre – Tacoma, Washington
"Threatened by a proliferation of huge theater chain multiplexes, hard times fell upon neighborhood movie theaters in the late 80s and 90s. In 1993 a small group of activists and preservationists, fearing that a plan to "re-adapt" the theater into office space might become the buildings fate, joined together to purchase and restore the property. To this day they call themselves the Blue Mouse Associates. At eighty five, and one of the very oldest continuously operating movie theaters in the country, The Blue Mouse continues on with sights on her hundredth birthday." Friday Night Frights for the win!
Darkside Cinema – Corvallis, Oregon
"Open since April 2005, Darkside Cinema is the only independently owned and operated movie theater in Corvallis. Except for this COVID-19 mandated closure, WE ARE OPEN EVERY NIGHT, playing independent, foreign, and art films you won't find at the local megaplex."
Gift Cards & Donations: Click Here
April 4, 2020 April 4, 2020 dreadfrightandbrew
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Federal Judges
Federal Contracts
981 F. 2d 1418 - United States v. Seligsohn 91-2083
Federal Reporter, Second Series
981 F.2d.
981 F2d 1418 United States v. Seligsohn 91-2083
981 F.2d 1418
Marlene Esther SELIGSOHN, a/k/a Esther DeMarco, Appellant in
No. 91-2083.
Melvin SELIGSOHN, a/k/a Mickey DeMarco, Appellant in No. 91-2093.
UNITED STATES of America, Appellant in No. 92-1038,
Melvin SELIGSOHN, a/k/a Mickey DeMarco.
Mark SELIGSOHN, a/k/a Mark Mancini, Appellant in No. 91-2100.
Nos. 91-2083, 91-2093, 92-1038 and 91-2100.
United States Court of Appeals,
Third Circuit.
Argued Oct. 6, 1992.
Decided Dec. 9, 1992.
Rehearing Denied Feb. 9, 1993.
Jack Zaremski (argued), New York City, for appellant Marlene Esther Seligsohn in No. 91-2083 and appellant-appellee Melvin Seligsohn in Nos. 91-2093 and 92-1038.
Peter Goldberger (argued), Pamela A. Wilk, Philadelphia, PA, for appellant Mark P. Seligsohn in No. 91-2100.
Michael M. Baylson, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Paul J. Van De Graaf (argued), Sp. Asst. U.S. Atty., David M. Howard, Asst. U.S. Atty., Philadelphia, PA, for U.S. in Nos. 91-2083, 91-2093, 91-2100, and 92-1038.
Before: GREENBERG, COWEN and WEIS, Circuit Judges.
WEIS, Circuit Judge.
In this white collar crime case, the district court imposed imprisonment terms and directed payment of substantial sums in restitution to unidentified consumer victims, as well as to certain named victims. Because the district court used the current Sentencing Guidelines for some of the counts rather than those in effect on the dates of the offenses, we must remand for recalculation. In addition, findings on some aspects of the restitution orders are lacking and, consequently, we must remand that portion of the case as well.
Defendants, Melvin Seligsohn, his wife Marlene, and their son Mark, were charged in a 67-count indictment with various offenses committed in the course of conducting their business. The defendants operated a number of companies engaged in roofing repair and sales in the Philadelphia area for many years. They were charged with using the mails to defraud consumers; skimming of cash receipts to pay under-the-table compensation to employees and owners; defrauding union welfare benefit plans of required contributions; paying bribes to a union shop steward; destroying company records; defrauding insurance carriers; and filing false tax returns.
The allegations of consumer fraud included such practices as schemes to sell unnecessary roofing work at excessive prices through blatant misrepresentations. For example, roofing vents which cost but a few dollars and did nothing were added to jobs at costs of hundreds of dollars. In other instances, while customers stood below, workmen would surreptitiously pour water off the roof as proof that water had been trapped below the existing roof and replacement was required. Frequently, the customers were elderly or disabled and unable to climb to the roof to verify the need for repairs.
By paying cash as part of wages earned by employees, the Seligsohns underreported their total payroll, filed false reports to the Internal Revenue Service on withholding taxes, and similarly deprived a union welfare plan of its entitlement. To carry out this scheme, the defendants bribed the union steward to secure his cooperation.
Pursuant to a plea agreement, Melvin pleaded guilty to one count of conspiracy, seven counts of mail fraud, two counts of labor bribery, three counts of obstruction of justice, one count of racketeering, two counts of submitting false employee benefit plan remittance reports, and two counts of submitting false tax returns.
Marlene Seligsohn pleaded guilty to one count of conspiracy, two counts of mail fraud, two counts of labor bribery, two counts of obstruction of justice, one count of racketeering, two counts of submitting false employee benefit plan remittance reports, and two counts of submitting false tax returns.
Mark Seligsohn pleaded guilty to one count of conspiracy, one count of mail fraud, one count of obstruction of justice, and one count of filing a false personal income tax return.
The district court imposed sentences of varying length of imprisonment and also directed restitution. On appeal, the defendants raise a number of objections to their sentences and the orders for restitution.
The defendants contend that the district court made insufficient findings and improperly ordered payments based on charges other than those of conviction.
Restitution is authorized by the Victim and Witness Protection Act, 18 U.S.C. § 3663(a), as incorporated into the Sentencing Guidelines, U.S.S.G. § 5E1.1. We exercise plenary review over whether an award is permitted under law, but we review specific awards for abuse of discretion. United States v. Furst, 918 F.2d 400, 408 (3rd Cir.1990).
In exercising its supervisory powers, this Court has required the district courts to make "findings as to the factual issues that are relevant to the application of the restitution provisions of the VWPA." United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985). We have noted three areas where findings should be made: (1) the amount of loss actually sustained by the victim; (2) how the loss is connected to the offense of conviction; and (3) the defendant's financial needs and resources. See Furst, 918 F.2d at 410; United States v. Johnson, 816 F.2d 918, 924 (3d Cir.1987).
"Difficulties of measurement do not preclude the court from ordering a defendant to compensate the victim through some restitution." United States v. Hand, 863 F.2d 1100, 1104 (3d Cir.1988). We observed in that case that Congress had considered the unusual situation where the exact amount owed would be difficult to determine and authorized the court "to reach an expeditious, reasonable determination of appropriate restitution by resolving uncertainties with a view toward achieving fairness to the victim." Id. at 1104 (citing S.Rep. No. 532, 97th Cong., 2d Sess. 31, reprinted in 1982 U.S.C.C.A.N. 2515, 2537). Such determinations should nevertheless be on the record. Hence, in Furst, 918 F.2d at 410, we took exception to the district court's failure to state the total amount of restitution that it had the power to impose, to identify the victims, and to explain the connection between the loss and the conduct for which the defendant was convicted.
In cases where the offenses were committed before recent amendments to the Victim and Witness Protection Act, if a defendant pleads to or is convicted of less than all the counts of an indictment, the critical inquiry for restitution purposes is not the total loss sustained by the victims. Instead, courts should determine whether the loss is "caused by the specific conduct that is the basis of the offense of conviction." Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 1980, 109 L.Ed.2d 408 (1990).
The government suggests that we should follow our pre-Hughey case of United States v. Woods, 775 F.2d 82 (3d Cir.1985), where restitution was based on provisions of the Probation Act, 18 U.S.C. § 3651 (repealed). In that case, we held that where the offense is a scheme to defraud, each count of mail fraud was simply an act in furtherance of the scheme and that the trial court had the authority to direct restitution for the entire fraudulent operation. Woods, 775 F.2d at 88. The government points out that in Hughey no such scheme was implicated and, therefore, on the facts the case is distinguishable. We decline to adopt such a narrow reading of Hughey and, instead, decide that we should take the Supreme Court at its word that the count of conviction controls the amount of restitution. Furst, 918 F.2d at 410; see also United States v. Badaracco, 954 F.2d 928, 942-43 (3d Cir.1992); United States v. Cook, 952 F.2d 1262, 1264-65 (10th Cir.1991); United States v. Sharp, 941 F.2d 811, 815 (9th Cir.1991); United States v. Stone, 948 F.2d 700, 704 (11th Cir.1991). But see United States v. Brothers, 955 F.2d 493, 496-97 (7th Cir.1992); United States v. Bennett, 943 F.2d 738, 741 (7th Cir.1991); cf. United States v. Hunt, 940 F.2d 130, 131 (5th Cir.1991).
Not long after the Supreme Court decided Hughey, Congress amended the Victim and Witness Protection Act in two respects. First, consistent with the rationale of Woods, when an offense involves as an element a scheme, conspiracy, or pattern of criminal activity, "victim" means a person who is directly harmed by the scheme, conspiracy, or pattern. 18 U.S.C. § 3663(a)(2); see H.R.Rep. No. 681(I), 101st Cong., 2d sess. 177, reprinted in 1990 U.S.C.C.A.N. 6472, 6583. In addition, the court is authorized to order restitution to the extent that the parties have agreed to it in a plea agreement. 18 U.S.C. § 3663(a)(3).
The amendments became effective November 29, 1990, a date which preceded the entry of the plea agreements in this case. We do not consider the amendments applicable to the Seligsohns because ex post facto considerations come into play.
Restitution under the Act is part of the sentencing process. The amendments were intended to change the Hughey interpretation of the statute by enlarging the courts' power to order restitution beyond that permitted by Hughey and, thus, work to the detriment of criminal defendants. Because of the prejudice to the defendants here, whose principal offenses were committed before the effective date of the amendments, we will not apply the statutory amendments to the restitution orders. We also note in passing that the government has not argued for application of the amendments in this case.
The district court directed Melvin to "pay his share, whatever he owes, jointly and severally as to the amount of restitution to the victims as specified by the U.S. Attorney's Office." The court then specifically identified the following debts: $426,040 to Local 30B Employee Benefit Funds, $150,000 to Westmoreland Casualty Company, $50,000 to UNUM Life Insurance Company, $5,000 to Standard Security Life Insurance Company of New York, $7,000 to Travelers Insurance Company, and $2,042,880 plus interest and penalties to the Internal Revenue Service. In the formal order, the court wrote that "the total amount of restitution will be between 10 and 20 million [dollars with] ... the government to make final calculation." That total included the specific amounts previously mentioned.
As to Marlene, the court ordered her "to pay the restitution jointly and severally as follows: $426,040 owed to Local 30B Employee Benefit Funds; $150,000 owed to Westmoreland Casualty Company; $50,000 owed to UNUM Life Insurance Company; $5,000 owed to Standard Security Life Insurance Company of New York; $7,000 owed to Traveler's Insurance Company; and $2,042,808, plus interest and penalties to the United States Internal Revenue Service." The formal order of sentence as against Marlene provided: "Payment of this restitution will be made in installments as determined by the probation officer based on the defendant's future ability to pay." The court further directed: "She is to provide Probation with financial information and the Government is to look into and determine if there is anything further they can seize for forfeiture with regards to this defendant on behalf of the victims--people who have been victimized."
In directing restitution by Mark, the judge stated: "The court will not impose a fine unless they want the defendant to join with the others in making restitution to the people that make claims to be administered by the U.S. Attorney." The court's formal order reads: "The total amount of restitution, as well as the payee(s), shall be determined by the U.S. Attorney General."
In accordance with our precedents, the district court on remand will be required to determine the amount of restitution assessed against each defendant depending on the counts on which guilty pleas were accepted. Some of those counts, such as the conspiracy and racketeering counts, are quite broad and will support very substantial restitution orders.1 Other counts, however, are narrowly focused. We repeat that absolute precision when calculating the amounts of losses is not necessary and that a reasonable approximation is satisfactory if that is the only feasible way that a determination can be made. See Hand, 863 F.2d at 1104.
In discussing the amount of loss for purposes of calculating the pertinent sentencing score under the Guidelines, defense counsel urged the court to accept the figure of $10 million dollars as against the prosecution's claims of $20 million dollars. The district court at various points set the loss between $10 million and $20 million dollars and in one restitution order set the amount at $15 million dollars. The court properly weighed the loss caused by the entire scheme when calculating the defendants' terms of imprisonment.
Hughey, however, does not allow a court to use that sum as a basis for restitution. Instead, in that context the court must focus on the counts to which pleas are entered. It may be that on remand defense counsel will concede that $10 million dollars represents a reasonable approximation of the loss attributable to the various counts on which pleas were entered, but in the absence of such a stipulation the court will be required to determine an amount arising from the pleaded counts.
Determination of the losses for which restitution may be ordered will not end the district court's task. Section 3664(a) requires the court to consider "the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate." A sentencing judge should make findings on the record as to these factors. Johnson, 816 F.2d at 924.
Here, the parties agreed to forfeit substantial assets. The district court intimates that the defendants may have hidden additional assets, but the record does not indicate their value, nor whether they will support the substantial restitution ordered. Indeed, the court stated: "I don't know if they will get the money to pay the victims unless there is more money than anyone knows about."
On remand, the court should make specific findings on the defendants' assets and ability to pay. Moreover, although the district court may disregard the potential indigence of the defendants when fashioning its order of restitution, see, e.g., United States v. Logar, 975 F.2d 958, 962-63 (3d Cir.1992); United States v. Smith, 944 F.2d 618, 623 (9th Cir.1991); United States v. Mounts, 793 F.2d 125, 128-29 (6th Cir.1986), it should make additional findings to justify that order.
In addition, the court should designate recipients of the restitution. See United States v. Miller, 900 F.2d 919, 922-24 (6th Cir.1990). A court can easily name the victims in some cases, but not in others. If the victims are numerous and difficult to identify, the court may define an appropriate victim class and direct the United States Attorneys Office to locate the persons fitting the description.
Here, in addition to the Internal Revenue Service, insurance companies, and union benefit funds, numerous individual homeowners were victimized by the defendants. To locate and name each of them in the sentencing order would complicate the process and, indeed, might constitute delay of such proportions that no restitution at all could be directed. Recognizing those difficulties, the district judge directed that payments be made to the U.S. Attorney, who would then designate the beneficiaries.
Section 3663(f)(4) provides that an order of restitution may direct a defendant to deliver the amount due to "the Attorney General or the person designated under section 604(a)(18) of title 28 for transfer to such victim." Under regulations issued pursuant to 28 U.S.C. § 604(a)(18), each United States Attorney is authorized to accept restitution for transfer to the victim.
Although a court may properly direct that payment be made to the United States Attorney as the district court did here, the unguided discretion to determine who are "victims" should not be entrusted to either the United States Attorney or the Probation Office. That is particularly true where the identity of those entitled to restitution must be determined by reference to the counts to which pleas were entered.
In a case like this, the designation of those eligible should be made by name where that is possible. Where names are unknown, designations can be made by a description specific enough to provide appropriate guidance for the United States Attorney in determining those entitled to share in the proceeds. Cf. United States v. Grundhoefer, 916 F.2d 788, 794 (2d Cir.1990); United States v. Cannistraro, 694 F.Supp. 62, 71-72 (D.N.J.1988), aff'd in relevant part, 871 F.2d 1210, 1214 (3d Cir.1989). When the total available funds will be insufficient to pay all victims, a court should also devise a system of equitable priority or pro ration.
We recognize that the restitution issues in this case are unusually complex and it is understandable that not all of the necessary findings were made. On remand we are confident that the record will be augmented to the extent necessary.
APPLICATION OF THE GUIDELINES
All of the defendants have appealed from the sentences of incarceration alleging errors in the computations under the Guidelines. We conclude that some of these claims have merit and require resentencing.
From the record, it appears that some of the offenses to which the defendants pleaded guilty may have been concluded before November 1, 1989. On that date, amendments to the Guidelines took effect and provided for the imposition of heavier penalties than those previously in effect.
Generally, the Guidelines in effect on the date the defendant is sentenced will be used to calculate the appropriate score. However, when retroactive application of the current version of the Guidelines results in more severe penalties than those in effect at the time of the offense, the earlier Guidelines control. United States v. Kopp, 951 F.2d 521, 526 (3d Cir.1991); see also United States v. Pollen, 978 F.2d 78, 90 (3d Cir.1992); United States v. Chasmer, 952 F.2d 50, 52 (3d Cir.1991).
In this case, the district court applied the post-1989 Guidelines without considering whether the offenses at issue had been committed before or after November 1, 1989. The government concedes that only the post-November 1, 1989, Guidelines were used, but defends that decision on the basis of a so-called "one book rule"--that is, only one set of Guidelines should be used in calculating the applicable total "as a cohesive and integrated whole." That so-called rule is inconsistent with United States v. Kopp and other cases in this Court. Focusing on ex post facto considerations, those cases have prohibited the application of more stringent penalties than were authorized at the time of the offense. Consequently, we expressly disapprove of the "one book" practice as in conflict with the Kopp opinion.
The government also contends that the use of pre-November 1, 1989, Guidelines will result in little, if any, change in the total points assessed and that, therefore, we should affirm the sentences imposed. We decline to do so.
Rather than make the detailed calculations at this juncture as to the appropriate total scores for each defendant, we prefer to leave the assessment to the district court in the first instance. The parties have raised objections that require a detailed review of the appropriate factors. In the absence of stipulations, it may be that in some instances evidentiary hearings will be required. In these circumstances, we believe that the better course is to remand to the district court for re-evaluation aided by specific suggestions from counsel for the parties.
In determining which version of the Guidelines is applicable to specific counts, the district court should bear in mind that the conspiracy and RICO counts are "continuing offenses." See United States v. Moscony, 927 F.2d 742, 754 (3d Cir.1991) (RICO); United States v. Rosa, 891 F.2d 1063, 1068-69 (3d Cir.1989) (conspiracy). In contrast, a count for a single mailing establishes the determinative date of a mail fraud offense. See United States v. St. Gelais, 952 F.2d 90, 96-97 (5th Cir.1992). A similar consideration applies to the tax fraud counts.
Section 3D1.2 of the Guidelines provides that "[a]ll counts involving substantially the same harm shall be grouped together." The purpose is to impose "incremental punishment for significant additional criminal conduct," but at the same time prevent double punishment for essentially the same conduct. United States v. Toler, 901 F.2d 399, 402 (4th Cir.1990) (citing U.S.S.G. Ch. 3, Pt. D, intro. comment.).
Subsections (a) and (b) of section 3D1.2 allow grouping when a victim of two or more counts is the same. Subsection (d) allows grouping when "the offense level is determined largely on the basis of the total amount of harm or loss" and lists a number of offenses at issue here which fit into that category, including tax evasion, mail fraud, and bribery. Essentially, the Guidelines focus on "Groups of Closely-Related Counts." U.S.S.G. § 3D1.1.
The district court grouped the counts according to the three principal offenses: mail fraud, bribery, and tax evasion. The defendants contend that because those offenses are listed under subsection (d) and all involve monetary loss, the counts should have all been grouped together.
We observe first that the three groups of offenses involved different victims--the mail fraud involved homeowners, the bribery involved the union, and the tax evasion involved the government. Grouping under (a) or (b) would have, therefore, been improper. See United States v. Astorri, 923 F.2d 1052, 1056 (3d Cir.1991).
Moreover, although all of the counts are listed in subsection (d) as appropriate for grouping, that inclusion does not mean that the counts must be grouped. See United States v. Harper, 972 F.2d 321, 322 (11th Cir.1992) (grouping under subsection (d) is not automatic). Counts must be of the "same general type" before grouping is appropriate. Id.; see also United States v. Patterson, 962 F.2d 409, 416-17 (5th Cir.1992); United States v. Porter, 909 F.2d 789, 793 (4th Cir.1990).
It is clear that although the mail fraud counts involved many victims, the nature of the offense as to each was similar. The mail fraud counts were, thus, appropriately grouped together. On the other hand, the tax evasion counts differed in nature and were not an essential part of or related to the mail fraud. The tax evasion counts also affected different victims. Similarly, the bribery of a union official differs substantially from tax evasion. Although the mail fraud counts could be appropriately grouped together, they cannot be combined further with the tax evasion or bribery counts.
In United States v. Cusumano, 943 F.2d 305, 313 (3d Cir.1991), we concluded that a determination of whether "various offenses were part of one overall scheme" is essentially a factual issue which we review under a clearly erroneous standard. The defendants have failed to persuade us that the district court's grouping was clearly erroneous. Our decision to uphold the court's grouping of the counts is further influenced by the fact that when reviewing the appropriateness of a grouping, deference must be given to the district court. United States v. Beard, 960 F.2d 965, 969 (11th Cir.1992).
Because the sentences must be reviewed on remand, however, we point out that before grouping the various offenses to determine the score, the district court must first apply the applicable Guidelines for each offense. In other words, if some of the offenses occurred before November 1, 1989, the Guidelines appropriate for that period of time must be used before those offenses are grouped with violations occurring after November 1, 1989. See U.S.S.G. § 1B1.1(a)-(d). Through this method the defendants are given the leniency required by ex post facto considerations.
Melvin and Marlene Seligsohn contend that their sentences were substantially in excess of the maximum stated during the plea colloquy. This allegation is the result of a stenographic error in the transcript that stated the maximum sentences in terms of "months" rather than "years." The transcript has since been corrected by the district court and leaves no doubt that the maximum permissible terms of imprisonment were accurately stated at the plea colloquy. After reviewing the matter closely, we are completely satisfied that the original transcript was faulty and that the Seligsohns were, in fact, aware of the actual possible maximum sentences.
Marlene Seligsohn, in addition, said she was coerced into pleading guilty by threats that if she did not agree to a bargain, the government would not allow her husband to enter a plea. Mrs. Seligsohn has not filed a motion to set aside her plea and, therefore, the matter is not properly before us. In any event, we note that she did admit to guilt during the sentencing hearing as well as during the plea colloquy. Moreover, in the circumstances here, the government could appropriately bargain for a "package deal" as part of the plea agreements. Package deal plea bargains, in which a prosecutor makes an agreement with one defendant contingent upon a co-defendant also pleading guilty, are permissible provided that the defendant's decision to forego a trial is otherwise voluntary. See United States v. Marquez, 909 F.2d 738, 741-42 (2d Cir.1990); United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir.1987), aff'd, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).
Melvin Seligsohn contends that the district court erred in granting a two-level enhancement under section 3A1.1 on the basis that he "knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct." See United States v. Boult, 905 F.2d 1137, 1139 (8th Cir.1990).
Whether a victim is particularly vulnerable to certain types of criminal conduct is inherently a factual determination subject to a clearly erroneous standard of review. Astorri, 923 F.2d at 1055. The defendant's consumer fraud scheme depended in many instances on the inability of elderly homeowners to verify the need to repair or replace roofs. There was adequate evidence in the record to sustain a finding that the defendants preyed on those particularly vulnerable individuals. We cannot conclude that the district court's determination was erroneous.
Melvin Seligsohn argues that his sentence was improperly enhanced because of an imprecise calculation of the loss attributable to the consumer fraud scheme. The district court adopted the presentence report that based the offense calculation on a consumer fraud amount exceeding $20 million. However, the parties stipulated and the court accepted that the amount of the consumer fraud was between $10 million and $20 million. When sentencing Mr. Seligsohn, the district court overlooked the stipulation and used the guideline range in the presentence report that posited fraud greater than $20 million. On remand, the district court should correct this error.
Melvin and Marlene Seligsohn contend that the district court sentenced them on the tax fraud counts for an offense with which they were never charged and that this violated due process. The indictment against the defendants did not allege any corporate tax evasion, but charged violations based only on personal tax fraud conspiracy violations. Thus, the defendants argue that the district court erred in computing their sentences based upon a tax loss attributable to the defendants' companies rather than using the amounts of individual tax loss.
We conclude that the tax fraud conspiracy mentioned in the indictment was clearly intended to encompass the tax losses attributable to the employees of the defendants' companies as well as the losses from the defendants' own personal tax evasion. The Seligsohn's cash skimming scheme defrauded the Internal Revenue Service out of the taxes owed by those employees receiving cash, as well as the defendants. We find that the district court properly computed the offense level for the tax fraud count based on the tax loss from the entire scheme.
Melvin and Marlene contend that the district court erred in failing to articulate the standard applied to the evidence as it went to the dollar amount of tax evasion and consumer fraud. They assert that because of the upward departures triggered by the large sums involved, the clear and convincing standard of United States v. Kikumura, 918 F.2d 1084, 1101 (3d Cir.1990), should apply rather than the preponderance standard of United States v. McDowell, 888 F.2d 285, 291 (3d Cir.1989).
The district court did not articulate the standard it used, but even assuming that the evidence met at least the preponderance standard, in the circumstances it was adequate. It is important to understand that much of the difficulty in determining the amount of money involved in the fraud and tax counts was the direct result of the defendants' mass destruction of company records--an action that formed the basis for the obstruction of justice charges. It comes with poor grace, therefore, for the defendants to assert a lack of convincing evidence when they systematically destroyed pertinent data.
The government did submit extremely detailed affidavits by special agents of the Department of Labor and the Internal Revenue Service describing the information secured from many witnesses, including some of the co-defendants. The agents also supplied an analysis of the remaining records of the roofing companies. During the sentencing proceedings, the district judge offered defense counsel the opportunity to cross-examine the agents. Counsel declined the offer, preferring instead to submit counter-affidavits. Moreover, at the sentencing hearing, defense counsel urged the court to use $10 million as the pertinent amount for purposes of assessing the impact of consumer fraud on the Guideline calculations.
We conclude that, in these circumstances, Melvin's and Marlene's contentions about the standard of proof lack merit.
Mark Seligsohn maintains that the government breached its agreement to recommend a downward departure based upon his cooperation with the prosecution. The government responds that it refused to move for a departure because after entering a plea agreement, the defendant engaged in insurance fraud. Mark applied for and received disability payments from an insurance company although he continued to receive money from one of the roofing companies indirectly through his wife who worked there. In addition, Mark furnished erroneous information to a bank in connection with a loan application. The prosecution contends that this continuing criminal activity impaired Mark's credibility as a witness and demonstrated a lack of cooperation.
We have made it clear that the government must abide by the terms of a plea agreement, United States v. Hayes, 946 F.2d 230, 233 (3d Cir.1991), and may not fail to meet its commitment because "it decides after the fact that it has made a bad bargain." United States v. Badaracco, 954 F.2d 928, 941 (3d Cir.1992). The defendant contends that his subsequent criminality did not violate his plea agreement or affect his standing as a potential government witness because the government had known his previous character was poor. This argument strikes us as chutzpah, rather than legal justification.
As part of his bargain, Mark agreed to cooperate with the prosecution in exchange for the government's promise to move for a downward departure. His obligations required him to disclose his knowledge of, and participation in, any crimes about which he had knowledge and to "provide truthful, complete, and accurate testimony and information."
Mark concealed his criminal conduct that occurred after signing the plea agreement and affirmatively lied to the government. He argues, nevertheless, that in context, the plea agreement obligated him to provide information only about the criminal conduct of other persons who were being prosecuted. However, the language of the plea agreement refers to his disclosure of "any crime about which he has knowledge" and is not limited to those of co-defendants. Promising to cooperate with the government was inconsistent with continuing involvement in criminal conduct. In these circumstances, the defendant's conduct relieved the government of its obligation to move for a downward departure, one that is difficult to believe the sentencing court would have granted in any event.
Finally, we come to the government's cross-appeal complaining that the district court erred in granting a downward departure to Melvin because of his age and health. At the time of the sentencing, Melvin Seligsohn was 62 years of age, but was not alleged to be in poor physical health. Although the Guideline imprisonment range was 168 to 210 months, the district court reduced the sentence to 150 months because of Mr. Seligsohn's age, and to reduce disparity with the punishment assessed against co-defendants.
Under section 5H1.1, departures on the basis of age are not normally permitted, United States v. Higgins, 967 F.2d 841, 845 (3d Cir.1992), but are permissible, for example, when the defendants are elderly and infirm and home confinement is equally efficient as well as being less costly. The record here does not demonstrate that appropriate findings were made to sustain a downward departure on this ground alone.2
In United States v. Nelson, 918 F.2d 1268, 1271-72 (6th Cir.1990), the Court of Appeals for the Sixth Circuit held that departures to reduce disparity between defendants were permissible because Congress' purpose was to eliminate "illogical, unjust, and unwarranted disparity." See also United States v. Daly, 883 F.2d 313, 319 (4th Cir.1989). However, the Court of Appeals for the Second Circuit in United States v. Restrepo, 936 F.2d 661, 670-71 (2d Cir.1991), and United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir.1991), concluded that Congress was more concerned with promoting national uniformity than with disparity among defendants in the same case. See also United States v. Arlen, 947 F.2d 139, 147 (5th Cir.1991).
A panel of this Court chose to adopt the reasoning of the Court of Appeals for the Second Circuit in United States v. Higgins, 967 F.2d 841, 845 (3d Cir.1992) (decided after the sentences were imposed in the case at hand). We are bound by the Higgins precedent and, accordingly, must hold that, as a general proposition, sentence disparity among co-defendants is not a sufficient basis for departure.
In this case, however, we are unable to determine from the record whether there are unusual circumstances that would constitute an exception to the rule. At sentencing, the district judge said with respect to Melvin's sentence: "Because the Government asks for a downward view of the guidelines in some of the other people that were involved and were as much involved as he in some cases, the court will impose the following sentence: ... 150 months, I think, will suffice because of the time he will spend in prison for what has happened here."
We are well aware that the Guidelines have transferred much discretion in the sentencing process from the courts to the prosecution. However, we do not believe that Congress intended that shift to be so drastic as to give the prosecution the power to bring about downward departures for some defendants while opposing like treatment for co-defendants similarly situated.
Because the district court did not cite the instances in which the government asked for downward departures and the similarities between those co-defendants and Melvin, we are unable to determine at this time whether there is an adequate basis for recognizing an exception to the Higgins rule. An elaboration by the district court is particularly important here because there were fifteen co-defendants named in the indictment in addition to the three parties to these appeals. To our knowledge, all pleaded guilty and were sentenced within the same period of time. On remand, therefore, the district court shall review this facet of the sentence computation in the light of Higgins and this opinion, keeping in mind Melvin's leadership role.
In view of the lack of findings on restitution and necessary review of the calculations under the Guidelines, this case will be remanded to the district court for proceedings consistent with this opinion.
SUR PETITION FOR REHEARING BEFORE ORIGINAL PANEL
Feb. 9, 1993.
The petition for panel rehearing filed by appellee in the above entitled case having been submitted to the judges who participated in the decision of this court, and no judge who concurred in the decision having asked for rehearing, the petition for rehearing is denied.
The defendants have pleaded guilty to a conspiracy that lasted from 1975 to 1989; however, the Victim and Witness Protection Act does not apply to losses that occurred before January 1, 1983. See United States v. Martin, 788 F.2d 184, 188-89 (3d Cir.1986). Although restitution may be imposed under the Federal Probation Act for offenses that occurred before November 1, 1987, 18 U.S.C. § 3651, repealed by Act of Oct. 12, 1984, Pub.L. No. 98-473, Title II, § 212(a)(2), 98 Stat.1987, such restitution may not be utilized when incarceration is imposed on the same count on which restitution would be based. See United States v. Hawthorne, 806 F.2d 493, 495 n. 2 (3d Cir.1986)
Speaking for himself, the author of this opinion is baffled by the government's conduct in complaining about the fact that Melvin would be released from prison when he would be about 72 years of age, rather than about 74 as the Guidelines would require. This overkill is another example of the untoward effects caused by the unnecessary rigidity of the Guidelines


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text:
namespace Atata.KendoUI.Tests;

using _ = NumericTextBoxPage;

[Url("numerictextbox")]
public class NumericTextBoxPage : Page<_>
{
    public KendoNumericTextBox<_> Regular { get; private set; }

    public KendoNumericTextBox<_> Disabled { get; private set; }

    public KendoNumericTextBox<_> ReadOnly { get; private set; }
}

redpajama_set_name: RedPajamaGithub


text:
Q: Differences in Javascript date in XP and OSX var d = new Date();
var date = d.getTime();
var age = Math.floor(date/1000 - time);

time is just a UNIX timestap like 1434168603 retrieved from a table.
If I console.log(time), both numbers are equal on XP and Mac OSX (Chrome). However if I console.log(date/1000), for example one is 1433914098 (rounded) on XP but 1434168768 (rounded) on OSX, leading to incorrect submission time on XP. On OSX it's correct.
What is causing this?

redpajama_set_name: RedPajamaStackExchange