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jhu-clsp
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CLERC

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247774	Since Greene, this court has rejected similar charges of misconduct where the government supplied counterfeit credit cards to detect which merchants would accept them. See Citro, 842 F.2d at 1153. In a case where an FBI agent bribed a state senator, we found no misconduct. See United States v. Carpenter, 961 F.2d 824, 829 (9th Cir.1992). Most recently, we declined to dismiss an indictment where the government established fake bank accounts and wired money to Mexican banks suspected of money laundering. See United States v. Gurolla, 333 F.3d 944, 948-49 (9th Cir.2003). We noted that the outrageous misconduct claim is limited to “extreme cases,” id. at 950, for example those characterized by “dominant fomentation” or “aggressive solicitation” of criminal activity. REDACTED Here, the FBI did not actually create a criminal enterprise. It constructed a fake travel agency Web site, and Agent Hamer lied about the arrangements he had made for the group. Like the agent who bribed the legislator in Carpenter, Agent Hamer engaged in fictional criminal conduct and lied about being able to facilitate access for Mayer. See also United States v. Williams, 791 F.2d 1383, 1386 (9th Cir. 1986) (refusing to dismiss indictment where prison authorities may have encouraged but did not actually aid jailbreak attempt). Moreover, the agent did not pay for Mayer’s trip, coerce him into buying a ticket, or plant the idea of traveling for illicit sexual conduct in Mayer’s mind. While Mayer points out there	[ { "docid": "22437426", "title": "", "text": "clear predisposition, his conviction was reversed: This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own • affairs. Fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred. Id. at 381 (footnote deleted). Based on Twigg, the Eastern District of Pennsylvania recently acquitted two subjects of the “Abscam” undercover operation. United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.1980) (appeal pending). The court found as a matter of law that the defendants had no predisposition to commit the offenses, and had been entrapped by the government. Id. at 1200. The court further found that the governmental involvement violated due process even if defendants were predisposed to commit the crimes. Id. at 1204-05. Government agents had posed as representatives of an Arab sheik who desired to build a hotel complex in Philadelphia. The defendants, members of the City Council, agreed to assist the project because it would benefit the city. Government agents offered bribes as an additional inducement. Defendants had not requested money, and had made it clear none was necessary. The agents insisted the sheik would be unwilling to proceed with the project unless the payments were accepted. Defendants accepted the money, but did not agree to do anything inconsistent with their obligation to promote the interests of the city. 501 F.Supp. at 1200. The government’s conduct in the present case does not rise to the level of outra-geousness reflected in Twigg and Jannotti. Treating the evidence in the light most favorable to the government, as we must, we find the government’s involvement reflected neither the dominant fomentation of Twigg nor the aggressive solicitation of Jannotti. If the conduct of the government was in some respects overzealous, it was clearly not “so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Ryan, 548 F.2d at 789. The convictions" } ]	[ { "docid": "383845", "title": "", "text": "to check for a wire prior to each transaction. Citro engaged in the activity for profit, and the government’s inducement of two expensive dinners and a $200.00 fee for each introduction was not overwhelming. In United States v. Esquer-Gamez, 550 F.2d 1231, 1234 (9th Cir.1977), the court rejected the defendant’s argument that he was not predisposed to supply cocaine despite his initial reluctance and the fact that he cooperated only after repeated inducements, numbering approximately twenty. The court noted that the only inducement offered the defendant was money. Id. Ci-tro’s position is very similar to that of the defendant in Esquer-Gamez. Although it is true that he did not initiate the idea of a credit card fraud scheme and did not immediately agree to participate, Citro eventually engaged in the scheme fully, and the only inducements offered were money and two expensive dinners. Viewed in the light most favorable to the government, there was sufficient evidence for a rational trier of fact to conclude that Citro was predisposed to commit the crime. Therefore, the district court did not err in denying Citro’s motions for acquittal based on the entrapment defense. Neither was it an abuse of discretion for the trial judge to deny Citro’s motion for a new trial based on the same grounds. II. Outrageous Government Conduct A motion to dismiss an indictment based on outrageous government conduct is a question of law reviewed de novo. United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983). Due process under the Fifth Amendment warrants dismissal of an indictment only where “the government’s conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.” Ramirez, 710 F.2d at 539 (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977)). This defense is similar to that of entrapment and may be applied where involvement by undercover police officers or informers in contraband" }, { "docid": "18061207", "title": "", "text": "concluded that “constitutionally unacceptable” are cases where the “crime is fabricated entirely by the police to secure the defendant’s conviction rather than to protect the public from the defendant’s continuing criminal behavior.” Id. at 1438. The majority opinion concedes that the government here fails the first, fourth, and fifth factors of the Bonanno test. Op. at 304-08. It is undisputed that the defendants were not involved in a continuing series of similar crimes or a criminal enterprise already in progress; that the agents did not infiltrate a criminal organization; and the agents did not approach persons already contemplating or engaged in criminal activity. The cases that decline to use the Bonanno test articulate a guiding principle. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), for instance, a case that the majority notes as declining to use the Bonanno test, see Op. at 308 n. 7, this court stated that our lodestar in determining whether the government conduct is outrageous is whether “the government did not initiate the criminal activity, but rather sought to crack an ongoing operation,” Gurolla, 333 F.3d at 950. Plainly, no ongoing operation existed here. Plainly the government here did initiate the criminal activity. The majority declares that its “concerns that [the government] sought to manufacture a crime that would not have otherwise occurred” are “mitigated to a large degree.” Op. at 307. This mitigation is due to Simpson and Black telling Zayas that they had done similar stash house robberies. These repeated assurances “quickly supplied,” the majority says, “reasons to suspect they were likely to get involved in stash house robberies.” Id. at 307. Nothing in the presentence reports on Black and Simpson shows that they had ever engaged in a stash house robbery. At least as far as the government knew, they were simply boasting. For the government agents to believe the boasts may have been reasonable. But the boasts did not show them to be currently engaged in this kind of crime. As far as the government agents knew or believed, Black and Simpson were neither committing a crime nor engaged in" }, { "docid": "23199670", "title": "", "text": "previous cases. First, Simpson cannot contend that Miller’s status as a paid informant makes her every decision about how to establish rapport with the suspect attributable to the FBI. This argument is squarely foreclosed by United States v. Prairie, 572 F.2d 1316 (9th Cir.1978), in which we held there was no due process violation when, unbeknownst to the government, a paid informant had sex with her suspect. In Prairie, the informant was a known prostitute, but she “was neither paid nor asked by the agents to establish any particular relationship with [the suspect] and, in any event, her official role was limited to that of introducing a willing seller of narcotics to a willing purchaser.” 572 F.2d at 1319. We held on these facts that there could be no due process violation because the informant’s use of sex in dealing with her suspect was not attributable to the government. Id. See also Ryan, 548 F.2d at 791 (private informant’s interference with a suspect’s attorney-client relationship was not attributable to government where there was no “evidence that [the informant] consulted with state agents before [interfering] or that the state was in any manner involved in this [interference]”). As in Prairie, the facts as found by Judge Hatter indicate that the FBI did nothing to encourage the informant to use sex in carrying out her assignment. Indeed, Judge Hatter explicitly found that agent Hamer repeatedly “instructed Miller ... not to get sexually involved.” 10 Reporter’s Transcript (“R.T.”) at 47. Therefore Miller’s initial decision to establish a deceptive sexual and emotional relationship cannot be used to characterize the government’s conduct in this case as outrageous. To be sure, Judge Hatter found that the FBI’s hands were not entirely clean. At some point the FBI became aware of Mil ler’s sexual involvement with Simpson, and though agent Hamer continued to warn her to refrain from further sexual activity, Judge Hatter found that Hamer probably expected her to continue. 10 R.T. at 47. The FBI deliberately closed its eyes to Miller’s ongoing conduct, 10 R.T. at 46, and did not terminate her involvement in the" }, { "docid": "18061191", "title": "", "text": "United States v. Bonanno, 852 F.2d 434, 437-38 (9th Cir.1988) (citing Bogart, 783 F.2d at 1435-38). These factors have not been used consistently, however, nor as a dispositive test. See, e.g., United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003) (not citing or employing the Bonanno factors and instead rejecting the defendants’ outrageous government conduct claim on the more general principle that “the government did not initiate the criminal activity, but rather sought to crack an ongoing operation”). Because we are to resolve every case on its own particular facts, we take account of the Bonanno factors in our analysis but only as part of our consideration of all the circumstances as a whole. . The dissent points out that in most of our decisions rejecting claims of outrageous government conduct the government targeted an existing scheme or suspected an individual of wrongdoing before initiating the sting operation. We agree with the dissent that the absence of those conditions here supports the defendants’ outrageous government conduct claim. In light of our precedent, however, we cannot say that this one factor alone establishes a due process violation. In at least two cases, we have rejected outrageous government conduct claims where, as here, the government initiated a sting operation without targeting an existing scheme or suspecting an individual of wrongdoing. In Bagnariol, the government approached persons involved with lawful gambling enterprises authorized under state law. See Bagnariol, 665 F.2d at 880-81. In United States v. Emmert, 829 F.2d 805 (9th Cir.1987), a confidential informant approached a college student about locating a substantial supply of cocaine for a buyer in the area. The government had no individualized suspicion of the college student as someone who was a drug user or dealer. Rather, the investigators approached him merely because they believed he attended a party at which cocaine was used and he in turn led them to his college roommate, Emmert. See id. at 807, 812. We found sufficient proof that Emmert was contemplating criminal activity simply by his agreement to engage in the criminal activity proposed by the government. See id. at" }, { "docid": "18061175", "title": "", "text": "we are satisfied that there is no significant evidence of government overreaching or coercion — significant factors in determining whether the government acted outrageously. Government’s encouragement of defendants. The extent to which the government encouraged a defendant to participate in the charged conduct is important, with mere encouragement being of lesser concern than pressure or coercion. See, e.g., Mayer, 503 F.3d at 755 (“There is no evidence in the record that any coercive relationship existed between Mayer and Hamer.”); McClelland, 72 F.3d at 721 (rejecting outrageous government conduct claim but noting that the government agent “did encourage McClelland at various times”); Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (“While there is no evidence that Shaw had dealt in food stamps before, once they were available he purchased them willingly and without pressure.”). There is little evidence of government coercion or pressure here. Simpson testified that he felt pressure from Agent Zayas urging him “to do something real quick” in putting a team together and planning the robbery; and the compressed time line of the operation and Zayas’ comments implying that Black and Simpson should involve more individuals may have placed subtle pressure on defendants' to put a team together and quickly plan the details of the robbery. But there is no evidence that the government engaged in inappropriate activity, threats or coercion to encourage defendants to engage in the robbery. Instead, the government proposed the stash house robbery, and the defendants eagerly jumped at the opportunity. Government’s participation in the crime. We have also considered various aspects of the government’s participation in the offense conduct as relevant. The duration of the government’s participation in a criminal enterprise is significant, with participation of longer duration being of greater concern than intermittent or short-term government involvement. See Greene, 454 F.2d at 786 (finding outrageous government conduct where the government’s participation “was of extremely long duration, lasting” about three years). We have also looked to the nature of the government’s participation — whether the government acted as a partner in the criminal activity, or more as an observer of the defendant’s" }, { "docid": "22052061", "title": "", "text": "government conduct Appellants argue that the district court erred in failing to dismiss the indictment because of outrageous government conduct in the process of investigating this case. Appellants claim that various aspects of the government’s involvement with and reliance on informant John “Stranger” Turscak resulted in conduct so improper that their due process rights have been violated. They also argue that the district court should have dismissed the indictments under its supervisory power as a sanction for the government misconduct. Appellants Fernandez, Gonzales, Sanchez and Schoenberg all joined a motion by co-defendant Cervantes raising this claim at the district court. We review the due process claim as to these appellants de novo, United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003), but review the supervisory power claim under the abuse of discretion standard. Id. We review the claims with respect to appellants Gaval-don and Contreras for plain error. See United States v. Duncan, 896 F.2d 271, 275 (7th Cir.1990). In reviewing these claims, we view the 'evidence in the light most favorable to the government and accept the district court’s factual findings unless clearly erroneous. Gurolla, 333 F.3d at 950. “The defense of outrageous government conduct is limited to extreme cases in which the government’s conduct violates fundamental fairness and is shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment.” Gurolla, 333 F.3d at 950 (citations and internal quotation marks omitted). We have found outrageous government conduct in instances where the government has “engineer[ed] and directed] the criminal enterprise from start to finish,” United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991), and in “that slim category of cases in which the police have been brutal, employing physical or psychological coercion against the defendant.” United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir.1986) (citation omitted), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). We do not find such conduct here. Appellants claim that the government engaged in outrageous conduct in this case because it used Turscak as a confidential informant" }, { "docid": "383846", "title": "", "text": "court did not err in denying Citro’s motions for acquittal based on the entrapment defense. Neither was it an abuse of discretion for the trial judge to deny Citro’s motion for a new trial based on the same grounds. II. Outrageous Government Conduct A motion to dismiss an indictment based on outrageous government conduct is a question of law reviewed de novo. United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983). Due process under the Fifth Amendment warrants dismissal of an indictment only where “the government’s conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.” Ramirez, 710 F.2d at 539 (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977)). This defense is similar to that of entrapment and may be applied where involvement by undercover police officers or informers in contraband offenses is so extensive that due process prevents the conviction of even a predisposed defendant. Id.; United States v. Gonzales-Benitez, 537 F.2d 1051, 1055 (9th Cir.1976), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). The government’s involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from beginning to end. Williams, 791 F.2d at 1386. Only two circuit decisions have been found that dismissed indictments based on this defense. In United States v. Twigg, 588 F.2d 373 (3d Cir.1978), the Third Circuit overturned convictions where a government agent suggested the creation of a speed laboratory and gratuitously supplied about 20% of the needed glassware, as well as an indispensable ingredient to production. The government also made arrangements with a chemical supply house to facilitate access to the rest of the materials. When problems developed in securing an adequate production site, the government secured an isolated farmhouse at no cost to the defendants. The government provided all the laboratory expertise. Without the government agent, the" }, { "docid": "23078801", "title": "", "text": "de novo. United States v. Citro, 842 F.2d 1149, 1152 (9th Cir.1988). For a due process dismissal, the Government’s conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice. United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983); Citro, 842 F.2d at 1152. The Government’s involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from start to finish. Citro, 842 F.2d at 1153. The police conduct must be “repugnant to the American system of justice.” Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (quoting United States v. Lomas, 706 F.2d 886, 891 (9th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984)). In short, a defendant must meet an extremely high standard. The courts have upheld all of the following: Use of false identities by undercover agents, Shaw, 796 F.2d at 1125, and United States v. Marcello, 731 F.2d 1354, 1357 (9th Cir.1984); the supply of contraband at issue in the offense, Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 1649-50, 48 L.Ed.2d 113 (1976); the commission of equally serious offenses by an undercover agent as part of the investigation, United States v. Stenberg, 803 F.2d 422, 430 (9th Cir.1986); the introduction of drugs into a prison to identify a distribution network, United States v. Wiley, 794 F.2d 514, 515 (9th Cir.1986); the assistance and encouragement of escape attempts, United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); use of a heroin-using prostitute informant whose own activities were under investigation and who engaged in regular intercourse with the defendant, United States v. Simpson, 813 F.2d 1462, 1465-71 (9th Cir.1987). Although drug agents’ encouraging 18-year-old patients in drug-treatment centers to deal drugs is not the most constructive enforcement method, it does not rise to the level of outrageous conduct necessary to constitute a due process violation. Here, Popp showed a tendency for dealing drugs independent of any action on the part of the DEA:" }, { "docid": "18061174", "title": "", "text": "in the defendants’ favor that the government had no knowledge of any past criminal conduct by any of the defendants when the Cl brought Simpson to the first meeting with Zayas, Simpson’s and Black’s repeated representations that they had engaged in related criminal activity in the past quickly supplied reasons to suspect they were likely to get involved in stash house robberies. Moreover, our review of the record persuades us that once Zayas set his bait, the defendants “responded without further inducement by the government.” Bagnariol, 665 F.2d at 882 (emphasis added). Instead, they responded with enthusiasm. They were eager to commit the fictional stash house robbery, and they joined the conspiracy without any great inducement or pressure from the government. Indeed, the defendants before us in this appeal were recruited by other defendants, not by Agent Zayas or the Cl. We therefore turn to our review of the government’s conduct once the sting got underway. C. Government’s Post-Initiation Conduct In reviewing the government’s conduct once defendants agreed to the scheme and began its implementation, we are satisfied that there is no significant evidence of government overreaching or coercion — significant factors in determining whether the government acted outrageously. Government’s encouragement of defendants. The extent to which the government encouraged a defendant to participate in the charged conduct is important, with mere encouragement being of lesser concern than pressure or coercion. See, e.g., Mayer, 503 F.3d at 755 (“There is no evidence in the record that any coercive relationship existed between Mayer and Hamer.”); McClelland, 72 F.3d at 721 (rejecting outrageous government conduct claim but noting that the government agent “did encourage McClelland at various times”); Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (“While there is no evidence that Shaw had dealt in food stamps before, once they were available he purchased them willingly and without pressure.”). There is little evidence of government coercion or pressure here. Simpson testified that he felt pressure from Agent Zayas urging him “to do something real quick” in putting a team together and planning the robbery; and the compressed time line of" }, { "docid": "18061167", "title": "", "text": "indicated they were already involved in continuing illegal transactions involving wildlife.”), superseded by statute on other grounds as stated in United States v. Atkinson, 966 F.2d 1270, 1273 n. 4 (9th Cir.1992). In some cases where the government did not suspect a particular individual, it has focused on a category of persons it had reason to believe were involved in the type of illegal conduct being investigated. An example is Garzar-Juarez, 992 F.2d 896, involving an investigation of illegal firearm trafficking at swap meets. The government received a tip that a Hispanic male at a swap meet near Casa Grande, Arizona, had illegally sold an assault-type firearm. On that information alone, an undercover agent went to the Casa Grande swap meet looking for Hispanic males and came upon the defendant, who appeared to be selling firearms in numbers exceeding those of a professed “gun collector.” The government then lured him into a faked sale of illegal weapons. See id. at 899-900. See also Emmert, 829 F.2d at 812 (targeting student who attended a cocaine party as one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981) (targeting politicians, political operatives and persons in the gaming business in investigation of political corruption). Known criminal characteristics of defendants. Closely related to the question of individualized suspicion is whether a defendant had a criminal background or propensity the government knew about when it initiated its sting operation. See, e.g., Williams, 547 F.3d at 1200 (noting that before the government suggested a stash house robbery, the defendant was introduced to the government “as a middleman drug dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.2007) (“While Mayer points out there was no ongoing criminal enterprise that the government was merely trying to join, Mayer was certainly a willing and experienced participant in similar activities [traveling internationally for sex with boys].” (citation omitted)). Government’s role in creating the crime. Also relevant is whether the government approached the defendant initially or the defendant approached a government agent, and whether the government proposed the criminal enterprise or merely attached" }, { "docid": "18061204", "title": "", "text": "criminal justice. The majority’s rationale for permitting the government to tempt the general population to crime imposes no limits upon the imagination of agents of the government. Besides Bagnariol, the government searches among its previous stings to find a precedent for what the government did here. The search has not been productive. The government cites cases where the defendants asserted a defense of outrageous government conduct and failed to establish the defense. In United States v. Stenberg, 803 F.2d 422 (9th Cir.1986), the defendants were already engaged in the type of illegal transactions the government sought to shut down, id. at 430. In United States v. Bonanno, 852 F.2d 434 (9th Cir.1988), the defendants were already involved in an illegal purchase order scheme, id. at 438. In United States v. Pemberton, 853 F.2d 730 (9th Cir.1988), the defendant was a long-time drug dealer already involved in money laundering, id. at 732. In United States v. Garza-Juarez, 992 F.2d 896 (9th Cir.1993), the defendants were already known to take part in a pre-existing illegal firearm trafficking scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), one of the largest undercover operations in history, the defendants were already part of a massive money laundering scheme in which Mexican banks laundered money to various drug cartels, id. at 948. In United States v. Williams, 547 F.3d 1187 (9th Cir.2008), the defendant was already wanted for a prior bank robbery; had engaged in several drug deals with a government informant; and had planned his second bank robbery in detail and on his own accord, going so far as to identify a target bank and recruit someone on the inside of the bank to help. It was only after the defendant enlisted a government informant to be his getaway driver that the ATF pitched the fictitious drug stash house as a safer alternative to robbing a bank. Id. at 1192. In each of these cases, the government targeted an existing scheme or suspected an individual of wrongdoing before initiating a sting operation. An Alternative Approach The majority opinion scarcely offers" }, { "docid": "19797117", "title": "", "text": "“[W]e view the evidence in the light most favorable to the government and we accept the district court’s factual findings unless they are clearly erroneous.” United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.), cert. denied, 540 U.S. 995, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003). We agree with the district court that dismissal was not required under the second Ker/Frisbie exception. Some of the government’s actions in Panama are quite disturbing, particularly the flat misstatements to Panamanian authorities. But a comparison to the circumstances in other cases in which the outrageous conduct exception was held inapplicable makes clear that the governmental conduct here does not meet the “extremely high standard” required for dismissal under the outrageous conduct / due process defense. United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991). The involvement of U.S. government agents in facilitating the expulsion of Struckman from Panama and receiving him in the United States surely does not meet this standard. We have previously held, for example, that abduction of a defendant by U.S. Marshals from the defendant’s home was not so shocking and outrageous as to warrant dismissal. See Mattar-Ballesteros, 71 F.3d at 761, 763. The lies told by O’Brien to Panamanian officials are considerably more troubling than other aspects of U.S. governmental involvement in Panama. We are not prepared to say that blatant lies to a foreign government that induce the foreign government to transfer a defendant to the United States when it otherwise would not could never amount to conduct so shocking and outrageous as to violate due process and require dismissal of pending criminal proceedings in the United States. In this case, though, the district court found that O’Brien’s misrepresentations came after the Panamanians had already decided to cooperate with the United States in returning Struckman and had issued the resolutions. So the Panamanians did not rely on these misrepresentations for that purpose. Also, Struckman was deported after his passport was revoked, which provided a separate reason for deportation under Panamanian law, in addition to those covered in the resolutions. In Anderson, we declined to apply the" }, { "docid": "18061205", "title": "", "text": "scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), one of the largest undercover operations in history, the defendants were already part of a massive money laundering scheme in which Mexican banks laundered money to various drug cartels, id. at 948. In United States v. Williams, 547 F.3d 1187 (9th Cir.2008), the defendant was already wanted for a prior bank robbery; had engaged in several drug deals with a government informant; and had planned his second bank robbery in detail and on his own accord, going so far as to identify a target bank and recruit someone on the inside of the bank to help. It was only after the defendant enlisted a government informant to be his getaway driver that the ATF pitched the fictitious drug stash house as a safer alternative to robbing a bank. Id. at 1192. In each of these cases, the government targeted an existing scheme or suspected an individual of wrongdoing before initiating a sting operation. An Alternative Approach The majority opinion scarcely offers an explanation for why it has declined to use the Bonanno test. The test is good law. Under the Bonanno test, the government’s conduct is not outrageous when: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out criminal activity; (4) the agent infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in criminal activity. Williams, 547 F.3d at 1199-1200 (quoting Bonanno, 852 F.2d at 437-38 and evaluating whether the government’s conduct is outrageous by methodically considering each of the five factors). The origin of the test lay in United States v. Bogart, 783 F.2d 1428 (9th Cir.), vacated in part on reh’g sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). Systematically evaluating a number of outrageous government conduct cases, Bogart" }, { "docid": "21561252", "title": "", "text": "(9th Cir.1985). Law enforcement conduct becomes constitutionally unacceptable when “the police completely fabricate the crime solely to secure the defendant’s conviction.” United States v. Emmert, 829 F.2d 805, 811 (9th Cir.1987). The facts of the present case do not support a claim of outrageous government conduct. At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals. Valentino’s acts of supplying Winslow with beer and food, and paying for the trip to Seattle and the bomb components, did not constitute outrageous government conduct. See United States v. Citro, 842 F.2d 1149, 1152-53 (9th Cir.) (undercover agent’s conduct in proposing and explaining details of credit card scheme to defendant and in supplying him with counterfeit credit cards did not constitute a due process violation), cert. denied, 488 U.S. 866, 109 S.Ct. 170, 102 L.Ed.2d 140 (1988). Valentino did not suggest or set up the plan from which the conspiracy evolved. See United States v. Smith, 802 F.2d 1119, 1126 (9th Cir.1986) (supplying opportunity for defendant to arrange drug sale was not outrageous government conduct because informant did not set up the source from which the defendant would purchase the drugs). While it is true that Valentino was paid $90,000 by the FBI as compensation for his undercover activity, “the government may employ undercover tactics to infiltrate criminal ranks and may rely on paid informants in order to locate and arrest criminals.” United States v. McQuin, 612 F.2d 1193, 1195-96 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980). Nor did the arrests of Nelson and Win-slow before the intended Seattle bomb was assembled, but after its components had been purchased, amount to outrageous government conduct. “Police are not required to delay arrest until innocent bystanders are imperiled.” United States v. Moore, 921 F.2d 207, 209 (9th Cir.1990). MOTION FOR MISTRIAL AND EVIDENTIARY OBJECTIONS A. Motion for Mistrial Nelson, Winslow and Baker argue that their convictions should be reversed on all counts because the district court erred in denying their motions for a" }, { "docid": "383847", "title": "", "text": "offenses is so extensive that due process prevents the conviction of even a predisposed defendant. Id.; United States v. Gonzales-Benitez, 537 F.2d 1051, 1055 (9th Cir.1976), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). The government’s involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from beginning to end. Williams, 791 F.2d at 1386. Only two circuit decisions have been found that dismissed indictments based on this defense. In United States v. Twigg, 588 F.2d 373 (3d Cir.1978), the Third Circuit overturned convictions where a government agent suggested the creation of a speed laboratory and gratuitously supplied about 20% of the needed glassware, as well as an indispensable ingredient to production. The government also made arrangements with a chemical supply house to facilitate access to the rest of the materials. When problems developed in securing an adequate production site, the government secured an isolated farmhouse at no cost to the defendants. The government provided all the laboratory expertise. Without the government agent, the defendants would not have known how to produce the substance, and the assistance the defendants provided was minimal. Id. at 380-81. In Greene v. United States, 454 F.2d 783 (9th Cir.1971), this circuit barred prosecution where the government contacted the defendants after their arrest on previous bootlegging charges and offered to supply the necessary equipment, as well as an operator for a still. The government supplied a large quantity of sugar at wholesale, urged the beginning of production, and was the defendants’ sole customer. Id. at 786-87. The court held that the government may not involve “itself so directly and continuously over such a long period of time [two and one-half years] in the creation and maintenance of criminal operations, and yet prosecute its collaborators.” Id. at 787. In the case at hand, the government’s conduct rises nowhere near the levels of Twigg, 588 F.2d 373, or Greene, 454 F.2d 783. While it is true that the government supplied the counterfeit credit cards, and initially raised the idea of a counterfeit credit card scheme, unlike" }, { "docid": "18061169", "title": "", "text": "itself to one that was already established and ongoing. See Williams, 547 F.3d at 1200 (noting that government merely persuaded the defendant to substitute a stash house robbery for the planned bank robbery he had initially proposed to the government agent); Mayer, 503 F.3d at 747 (noting that the defendant was the first to broach the subject of traveling internationally to have sex with boys); United States v. Winslow, 962 F.2d 845, 849 (9th Cir.1992) (“At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals.”); United States v. Wiley, 794 F.2d 514, 516 (9th Cir.1986) (“The drug distribution scheme between defendant and Garbiso was in existence before the government became involved; the government merely activated it.”). In the case before us, the government does not contend it had any individualized suspicion of any of the defendants as being involved in stash house robberies when it dispatched the Cl into the field to find persons willing to do such a robbery. Rather, it knew nothing about them or their criminal inclinations or experiences until the Cl surfaced Simpson through Curtis, a stranger at a bar. The only criterion the Cl used to select the bar was that it was in a “bad” area where persons engaged in “criminal activity” were likely to gather. This is a much wider net than we have seen in previous cases. Moreover, the stash house robbery was entirely the ATF’s creation, and it was Zayas who set the parameters for how it had to be carried out. Thus as to the inception stage of this sting, the argument for government overreaching has some force. Perhaps the most analogous case is Bagnariol, 665 F.2d 877. An FBI agent (Heald), as part of a two-year investigation into gambling and political corruption in the state of Washington, posed as the head of a fictitious corporation (So-Cal) interested in meeting politicians who, for a substantial fee, would assure passage of legislation expanding legalized cardroom gambling that So-Cal wanted to control. Heald made his interests known" }, { "docid": "23562089", "title": "", "text": "entrapment. Accordingly, we affirm the district court’s decision to deny the appellants’ Rule 29 motions. B Williams, Brown, and Steel next argue that the district court erred in failing to dismiss the indictment due to outrageous government conduct. They claim the government concocted, directed, and supervised the criminal enterprise from start to finish, and thus falls within the prohibition on outrageous government conduct imposed by the Due Process Clause of the Fifth Amendment. See United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). For the reasons described below, we reject their argument. “ ‘Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed.’ ” United States v. Holler, 411 F.3d 1061, 1065 (9th Cir.2005) (quoting United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir.1995)). This claim requires meeting a “high standard,” id. at 1066, with a showing that “the government’s conduct violates fundamental fairness and is ‘shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment.’ ” United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003) (quoting Russell, 411 U.S. at 431-32, 93 S.Ct. 1637). We explained in Gurolla that “[t]his standard is met when the government engineers and directs a criminal enterprise from start to finish,” but “is not met when the government merely infiltrates an existing organization, approaches persons it believes to be already engaged in or planning to participate in the conspiracy, or provides valuable and necessary items to the venture.” Id. (internal quotation marks and citations omitted). In United States v. Bonanno, 852 F.2d 434 (9th Cir.1988), we set forth five factors that, when satisfied, indicate that the governmental conduct was acceptable. The five factors are: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in process at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the" }, { "docid": "18061206", "title": "", "text": "an explanation for why it has declined to use the Bonanno test. The test is good law. Under the Bonanno test, the government’s conduct is not outrageous when: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out criminal activity; (4) the agent infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in criminal activity. Williams, 547 F.3d at 1199-1200 (quoting Bonanno, 852 F.2d at 437-38 and evaluating whether the government’s conduct is outrageous by methodically considering each of the five factors). The origin of the test lay in United States v. Bogart, 783 F.2d 1428 (9th Cir.), vacated in part on reh’g sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). Systematically evaluating a number of outrageous government conduct cases, Bogart concluded that “constitutionally unacceptable” are cases where the “crime is fabricated entirely by the police to secure the defendant’s conviction rather than to protect the public from the defendant’s continuing criminal behavior.” Id. at 1438. The majority opinion concedes that the government here fails the first, fourth, and fifth factors of the Bonanno test. Op. at 304-08. It is undisputed that the defendants were not involved in a continuing series of similar crimes or a criminal enterprise already in progress; that the agents did not infiltrate a criminal organization; and the agents did not approach persons already contemplating or engaged in criminal activity. The cases that decline to use the Bonanno test articulate a guiding principle. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), for instance, a case that the majority notes as declining to use the Bonanno test, see Op. at 308 n. 7, this court stated that our lodestar in determining whether the government conduct is outrageous is whether “the government did not initiate the criminal activity, but rather sought to" }, { "docid": "15709520", "title": "", "text": "United States v. Gomez-Tostado, 597 F.2d 170, 172-173 (9th Cir.1979). In Gomez-Tostado, the defendant was stopped in San Diego, California, en route to Mexico with five kilograms of heroin in his car. On appeal, Gomez-Tostado argued that the district court lacked jurisdiction under 21 U.S.C. § 841(a) because he intended to distribute the heroin in a foreign country. Id. at 172. We rejected Gomez-Tostado’s argument, holding that “we find nothing in the legislative history or language of section 841(a)(1) that suggests any congressional intent to limit the applicability of the statute to defendants whose intended distribution point is in this country.” Id. Holler argues that Gomez-Tostado is inapplicable because the defendant in that case actually possessed contraband, whereas Holler was never in possession of the government supplied cocaine. However, Holler was convicted of conspiracy to possess cocaine and attempted possession of cocaine, and neither of these statutes require actual possession. Accordingly, we conclude that the district court had jurisdiction. B. Outrageous Government Conduct Holler argues that the district court erred by not dismissing his indictment for outrageous government conduct because (1) the Cl had a history of misconduct as an informant and the DEA was aware of the prior misconduct, (2) the Cl engaged in misconduct in this, case, including the theft of drug money, and (3) the government ratified the Cl’s behavior. A claim that the indictment should be dismissed because the government’s conduct was so outrageous as to violate due process is reviewed de novo. United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003). The evidence is viewed in the light most favorable to.the government and findings of fact underlying the dismissal are reviewed under a clearly erroneous standard. Id.; see also United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991). “Outrageous government conduct is not a defense, but rather a claim- that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed.” United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir.1995). To meet this high standard, the “governmental conduct must be so grossly shocking and" }, { "docid": "18061168", "title": "", "text": "as one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981) (targeting politicians, political operatives and persons in the gaming business in investigation of political corruption). Known criminal characteristics of defendants. Closely related to the question of individualized suspicion is whether a defendant had a criminal background or propensity the government knew about when it initiated its sting operation. See, e.g., Williams, 547 F.3d at 1200 (noting that before the government suggested a stash house robbery, the defendant was introduced to the government “as a middleman drug dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.2007) (“While Mayer points out there was no ongoing criminal enterprise that the government was merely trying to join, Mayer was certainly a willing and experienced participant in similar activities [traveling internationally for sex with boys].” (citation omitted)). Government’s role in creating the crime. Also relevant is whether the government approached the defendant initially or the defendant approached a government agent, and whether the government proposed the criminal enterprise or merely attached itself to one that was already established and ongoing. See Williams, 547 F.3d at 1200 (noting that government merely persuaded the defendant to substitute a stash house robbery for the planned bank robbery he had initially proposed to the government agent); Mayer, 503 F.3d at 747 (noting that the defendant was the first to broach the subject of traveling internationally to have sex with boys); United States v. Winslow, 962 F.2d 845, 849 (9th Cir.1992) (“At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals.”); United States v. Wiley, 794 F.2d 514, 516 (9th Cir.1986) (“The drug distribution scheme between defendant and Garbiso was in existence before the government became involved; the government merely activated it.”). In the case before us, the government does not contend it had any individualized suspicion of any of the defendants as being involved in stash house robberies when it dispatched the Cl into the field to find persons willing to do such a robbery." } ]
736597	1015(b), to provide for the joint administration of the respective debtors’ estates. But joint administration should not be confused with consolidation. Consolidation results in the creation of one estate from two or more; joint administration does not, but is rather done for procedural convenience by avoiding the duplication of effort that would result if cases involving related debtors were to proceed separately. In re Blair, 226 B.R. 502, 505 (Bankr.D.Me.1998). See also Fed. R.Bankr.P.2009(e) (trustee shall keep separate accounts for each jointly administered estate). Therefore, for all the reasons just explained, the Debtor, Mr. Toland, is not entitled to claim an exemption in his wife’s vehicle. This holding is consistent with past decisions of a similar nature decided by this Court: REDACTED where title to vehicle reflected debtor as sole owner, debtor could not claim that son was intended owner; In re Smith, 310 B.R. 320, 323-24 (Bankr.N.D.Ohio 2004), a non-debtor spouse, whose wages did not contribute to a tax overpayments, had no interest in the ensuing refund which could operate to exclude it from the debtor’s bankruptcy estate. In reaching the conclusions found herein, the Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this Decision. Accordingly, it is ORDERED that the Trustee’s Objection to the claim of exemption of the Debtor, James W. Toland, Sr., in the motor vehicle titled in the name of the Co-debtor,	[ { "docid": "195263", "title": "", "text": "owner. On the Chapter 7 schedules the Debtors listed the promissory note as a debt and the pickup truck as property of the estate. The Debtors also claimed the truck as an exemption from the estate. The Trustee objected to the claim of exemption, an Objection which was sustained by this Court on February 23, 1984. On December 21, 1983, the Trustee-Plaintiff filed this Complaint seeking a recovery of the truck which remained in the Debtors’ possession. At the Pre-Trial the Defendant-Debtor argued that her co-signature on the note was given in order to allow her son to purchase the truck. She further argued at the Pre-Trial that since her son was the only user of the vehicle, that he had made all the payments to the creditor, and that the intent of all parties involved was that the truck belonged to him, the truck should not properly be included in the estate. The record reflects that the time set on February 23, 1984, for the submission of arguments has expired and that only the arguments of the Trustee have been submitted. LAW The property which becomes part of the bankruptcy estate when a Petition is filed is addressed by 11 U.S.C. § 541(a) which states in pertinent part: “The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located ... all legal or equitable interests of the debtor in property as of the commencement of the case.” As correctly argued by the Trustee, in Ohio, legal title to motor vehicles is evidenced only by the name of the owner on a duly certified certificate of title. See, Ohio Revised Code § 4505.04. Accordingly, the only owner which this Court may recognize as the actual owner of the vehicle is the Debtor. Pursuant to the provisions of § 541(a), her legal title has become part of the bankruptcy estate. This conclusion is supported by the fact that the Debtors, by inclusion of the truck on their schedule of property, have admitted that it" } ]	[ { "docid": "20239220", "title": "", "text": "(Bankr.S.D.N.Y.2007). For the reasons stated by the Eighth Circuit Bankruptcy Appellate Panel in In re Carlson, 394 B.R. 491 (8th Cir.BAP 2008), the Court agrees that relying upon the treatment of a tax refund in the event the debtors divorce is not appropriate. The relevant inquiry is not whether Mrs. Evans might be entitled to seek an equitable distribution of the funds upon some future dissolution of the marriage, but rather, whether she had a right to the funds at the time of the filing and whether that right subsequently became part of her bankruptcy estate, as opposed to her husband’s bankruptcy estate. As the court noted in Carlson, the goal of marital dissolution law is to equitably distribute assets between spouses, whereas the question of property ownership in this instance implicates the rights of each of the debtor’s creditors to each of the debtor’s assets. See also In re Crowson, 431 B.R. 484, 489 (10th Cir.BAP2010). The Debtors encourage the Court to respect the “family unit” by treating the Debtors as one. These Debtors’ estates are administered jointly pursuant to section 302(b). They have not been substantively consolidated. See In re Blair, 226 B.R. 502, 506 (Bankr.D.Me.1998). While this legal conclusion may be a distinction without a difference in cases in which the spouses own jointly all assets and owe jointly all debts, it is relevant in cases in which one spouse owns significant amounts of separate property or owes significant amounts of debt upon which the other spouse is not obligated. In such cases, determining the proper apportionment of the spouses’ assets is important to the trustee and the creditors and also respects the fact that the Code anticipates married debtors in a joint case will make separate claims to exemptions. See Carlson, 394 B.R. at 497 (“Allowing debtors to ‘transform’ separate property to joint property, with the result being to allow a co-debtor spouse to claim an exemption in property she does not own, or to allow a non-debtor spouse to keep half a tax refund out of the debtor-spouse’s estate, is not equitable.”); see also 11" }, { "docid": "21058310", "title": "", "text": "appeals in Sumy was not faced with the issue presented by these cases. While the facts of Sumy fully support the remedy given to the chapter 7 trustee, the case is not support for the debtors’ position here. Sumy merely continues the long line of cases originating with Krakower that are designed to prevent and remedy a particular type of abuse — creating an exemption in bankruptcy that does not exist at state law by manipulating the filing of petitions in bankruptcy by the spouses. It was intended to prevent an abuse, not create a new one. Neither Reid nor Sumy support the debtors’ proposition that administration of entireties property is limited to joint creditors. Substantive Consolidation The manner in which the cases are administered — that is, whether they are administratively consolidated or substantively consolidated — may be important to both the debtors and to the creditors. There is a difference between administrative consolidation and substantive consolidation. Administrative consolidation, or joint administration, is justified on the grounds of convenience and efficiency. 2 Collier on Bankruptcy ¶ 302.06, at 302-17 (15th ed. rev., 2000). Joint administration permits a trustee to administer two cases together, however, the individual estates remain legally distinct entities. The rights of the debtors, the creditors and the trustee are not altered. In re Blair, 226 B.R, 502, 505 (Bankr.D.Me., 1998); McCulley, 150 B.R. at 360. When a trustee pays allowed claims, creditors of each estate may receive different dividends. This arises from two factors: the assets recovered in each estate and the allowed claims in each case. Some creditors will be creditors of only one estate while others may be joint creditors. Some assets liquidated by the trustee may have belonged to one debtor alone. Other assets may have been joint assets. This may result in two estates with different amounts of money available for distribution to creditors holding different claims, claims different as to amount and priority. While all creditors of the same class in each estate will receive the same pro rata distribution, usually creditors of the two estates will receive a different percentage" }, { "docid": "12403990", "title": "", "text": "L.Ed.2d 169 (1988). This Court finds it within its equitable powers to convert this Debtor’s chapter 7 case into a-chapter 13. To hold otherwise would be to deny the Debtor’s intention to pay all creditors and subject her to an involuntary liquidation. Under section 1306(b), a chapter 13 debtor is considered a debtor in possession and is entitled to all property in the estate. Conversion of a case under section 706 terminates the service of the chapter 7 trustee. Section 348(e). Thus, the trustee must transfer the insurance proceeds to the Debt- or. CONCLUSION This Court finds that there is insufficient evidence of prejudice of the creditors to war rant substantive consolidation of the Joint Debtors’ separate estates. Under the Court’s equitable powers, the Debtor’s separate estate and case is converted to a case under chapter 13. The Trustee’s request for a set aside of $10,000.00 for administrative expenses is granted. Debtor’s counsel is directed to prepare an order in accordance with this Memorandum Decision within ten (10) days of the date of entry. . Unless otherwise noted, all references herein to \"section” refer to section of the Bankruptcy Code, 11 U.S.C. §§ 101-1330. . Federal Rule of Bankruptcy Procedure 1015(b) in relevant part provides: If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife ..., the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. . Although an old case, the opposing parties have offered no authority for this Court to question the holding in In re Dobbel’s Estate, 104 Cal. 432, 435, 38 P. 87 (1894), that the insurance proceeds are a spouse’s separate property even if purchased with community assets. . The Court declines to consider whether the Debtor is jointly liable for the partnership debts as this should be done in the context of the claims objection procedure. . The Court did find administratively consolidated cases where the court separately converted one" }, { "docid": "18154658", "title": "", "text": "of $3,734.00. The refund check was made payable to the debtor and his wife, although his wife earned no income and made no withholding payments in 2004. Following the debt- or’s individual Chapter 7 bankruptcy filing, the trustee filed a motion for turnover of $1,317.05 of the tax refund as estate property. The trustee calculated the estate’s interest in the tax refund by deducting, from the total amount of the refund, the debtor’s earned income tax credit and child tax credit, as well as the debtor’s remaining wild-card exemption that had not been claimed on Schedule C. See Ex. B to Debt- or’s Obj. to Trustee’s Mot. for Turnover, filed April 12, 2005 (Doc. 16). The debtor disputes the amount sought by the trustee, arguing that only one-half of the tax refund belongs to the debtor. The debtor contends that, after deducting applicable credits and exemptions, the estate’s interest is $80.95. Under § 541 of the Bankruptcy Code, commencement of a bankruptcy case creates an estate, which is comprised of “all legal or equitable interests of the debt- or in property” as of the petition date. See 11 U.S.C. § 541(a). The scope of estate property is very broad and includes every conceivable interest held by the debtor in property. See In re Smith, 310 B.R. 320, 322 (Bankr.N.D.Ohio 2004). Therefore, proceeds due from a tax overpayment, as in this case, become property of the estate to the extent the overpayment was made prepetition. Id. Despite the broad scope of § 541, however, property of a debtor’s estate does not include a third-party’s interest in property co-owned with the debtor. See, e.g., 11 U.S.C. § 363(h). It is upon this basis that the debtor argues that his wife’s one-half interest in the subject tax refund is not property of his bankruptcy estate. Neither this Court nor the Seventh Circuit Court of Appeals has ruled on the issue of whether a non-debtor spouse who earned no income and made no tax with-holdings during the tax year nevertheless has a property interest in a tax refund received after filing a joint return." }, { "docid": "19943949", "title": "", "text": "months after the child was born, Debtor’s wife began her employment. Debtor’s wife earned approximately thirty-one (31%) percent of the couple’s combined income for 2006, although she only worked for a few months. 5. On November 20, 2006, Debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Debtor’s wife has not sought relief under the Bankruptcy Code. 6. Debtor did not disclose any possible tax refund due to him in his Schedule B. 7. On December 22, 2006, Debtor testified at his § 341 meeting of creditors that he expected to receive a tax refund of approximately $1,000.00. Despite being asked his current marital status, Debtor failed to disclose that he and his wife were separated. 8. On or about February 5, 2007, Debt- or and his wife filed a joint return for tax year 2006, and the couple subsequently received a combined (State and Federal) tax refund of $4,666.00. 9. On February 15, 2007, the Trustee filed the Motion for Turnover of Property, whereby she seeks Debtor’s share of the 2006 tax refund. 10. On February 24, 2007, Debtor filed an Amended Schedule B indicating that Debtor anticipates receiving a $4,600.00 tax refund, but asserting that his share of that refund is only $2,200.00. Debtor also filed an Amended Schedule C, wherein Debtor seeks a $900.00 exemption for the anticipated tax refund. CONCLUSIONS OF LAW The filing of a bankruptcy petition by Debtor resulted in the creation of an estate subject to administration by the Trustee for the benefit of Debtor’s unsecured creditors. § 541(a). This estate is comprised of all legal or equitable interests of Debtor in property, including a tax refund, to the extent the overpayment was made prepetition. Campbell v. Woods (In re Woods), No. 97-80172-W, slip. op. at 5 (Bankr.D.S.C. Dec. 1, 1997). While the scope of “estate property” under § 541 is broad, a debtor’s bankruptcy estate does not include a third-party’s undivided interest in property co-owned with the debtor. In re Lock, 329 B.R. 856, 858 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. 320, 322 (Bankr.N.D.Ohio 2004); In re" }, { "docid": "3832184", "title": "", "text": "but to a separate entity referred to as the “unity” or “the marriage.” Id,.; see also In re Stanley, 122 B.R. 599, 604 (Bankr.M.D.Fla.1990). Therefore, with limited exceptions, entireties property does not become property of the bankruptcy estate when only one spouse has filed a bankruptcy petition. Mesa Petroleum Co. v. Coniglio, 16 B.R. 1015, 1021 (M.D.Fla.1982); see also Peeples, 105 B.R. at 94-95. In Florida, a viable tenancy by the entireties estate is created in either personalty or realty when the unities of possession, interest, title, time, and marriage are satisfied. Stanley, 122 B.R. at 604. If the matter involves personalty, the intent to create an entireties estate, at the time of acquisition, must be shown. Id. Such a requirement alleviates concern that the debtor will claim the personalty as entireties property so as to insulate it from claims of creditors of one of the spouses. Id. The burden of proof is not met solely by the debtor’s, or the non-filing spouse’s, testimony at the hearing on the objection to the claimed exemption. Id.; see also In re Spatola, 65 B.R. 49 (Bankr.S.D.Fla.1986). Rather, the debtor must provide a quantum of documentary proof establishing that an entireties estate was intended when the personalty was acquired. In re Allen, 208 B.R. 786, 791 (Bankr.M.D.Fla.1996). In this case, Debtor provided scant evidence to show that the household furnishings were acquired with the intent to be held entireties properties. The only evidence of such intent was testimony by Debtor, and her husband, that they consider the household furnishings to be jointly owned with survivorship rights. However, Debtor did not provide supplementary documentation to establish that a tenancy by the entireties was intended. Debtor’s failure to do provide such documentation is fatal to her claim of exemption. Therefore, the Trustee’s objection to Debtor’s claim of exemption, with respect to the household furnishings, is sustained. C. REAL PROPERTY The Trustee acknowledges that the real property is held as tenants by the entirety. However, the Trustee maintains that Debt- or’s joint debts with her non-filing spouse subjects the realty to administration for the benefit of" }, { "docid": "15640553", "title": "", "text": "requisite property interest in a tax refund which would entitle such spouse to an exemption.”); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987) (“a joint filing does not change the ownership of property rights between taxpayers.”); In re Carey, 1993 WL 541461 2 (Judge Williams, Bankr.N.D.Ohio) (“refund of taxes paid by one spouse, who files jointly with the other spouse, remain the property of the wage-earning spouse.”). But see Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000) (“in an appropriate case a non-income producing non-filing spouse, who is a homemaker that makes substantial contributions to the family, may be entitled to have a property interest in a joint tax refund check, notwithstanding that all the taxable income was generated by the debtor-spouse.”) Consequently, in this particular case, since the Debtor’s spouse did not contrib ute to any of the tax overpayments made in the year 2002, she has no property interest in any refund due therefrom which can be excluded from the Debtor’s bankruptcy estate. As a consequence, the Trustee, subject of course to any applicable exemptions, is conferred with the right to administer any refund that the Debtor is entitled to receive as the result of his 2002 year tax overpayment. As it concerns this decision, a few final observations. First, it is realized that pursuant to 26 U.S.C. § 6013(d)(3), a non-incoming producing spouse who signs a joint tax return is subject to joint and several liability for any tax owing. This predicament, however, is mitigated by the fact that the filing of a joint return is not mandatory, and as noted above, may confer upon both spouses certain tax advantages. The concern of joint and several liability is also alleviated by the fact that 26 U.S.C. § 6015 relieves an “innocent spouse” from any personal liability on a jointly filed tax return. Second, it is observed that this holding may also work against the bankruptcy estate in the reverse situation where a debt- or’s spouse, who is not in bankruptcy, is the only party contributing to the tax overpayment. Finally, it is noted" }, { "docid": "13817360", "title": "", "text": "granting the Blair’s motion would ensure that Rodney’s liabilities encompass Darlene’s (and hers, his). Discussion 1. Substantive Consolidation Rodney and Darlene filed their case jointly under § 302(a) which provides: A joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter. 11 U.S.C. § 302(b). However, as § 302(b) makes clear, the filing of a joint petition does not, by itself, consolidate the estates and their concomitant liabilities: “After the commencement of a joint case, the court shall determine the extent, if any, to which the debtor’s estates shall be consolidated.” § 302(b). One commentator has summarized the differences between joint administration and substantive consolidation as follows: Substantive consolidation must not be confused with the related procedure of joint administration. Joint administration is a procedure by which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort that would result if cases involving related debtors were to proceed separately. The most significant difference between joint administration and substantive consolidation is that joint administration requires the estate of each debtor to be kept separate and distinct. Joint administration does not affect the substantive rights of creditors and other interested parties. Thus, administrative efficiency is achieved without sacrificing the parties’ substantive rights. Conversely, substantive consolidation effects a merger of the consolidated debtors’ estates, which creates a single estate that is recognized throughout the remaining bankruptcy process. J. Stephen Gilbert, Substantive Consolidation in Bankruptcy: A Primer, 43 Vand. L.Rev. 207, 212 (1990)(footnotes omitted). See also Fed. R. Bankr.P. 1015(b)(court may order joint administration of estates of husband and wife); Fed. R. Bankr.P.2009(a)(sin-gle trustee may oversee" }, { "docid": "13817362", "title": "", "text": "jointly administered estates); Fed. R. Bankr.P.2009(e)(trustee shall keep separate accounts for each jointly administered estate); Tisha Morris Federico, The Impact of the Defense of Marriage Act on Section 302 of the Bankruptcy Code and the Resulting Renewed Interest in the Equitable Doctrine of Substantive Consolidation, 103 Com. L.J. 82, 83-87 (1998). After substantive consolidation, “the consolidated estates create a single fund from which all of the claims of the consolidated debtors are satisfied.” Gilbert, supra, at 209. See also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Smith v. Mortgage Funding Corp. (In re Smith and Kourian), 216 B.R. 686, 687 n. 2 (1st Cir. BAP 1997); James F. Queenan et al., Chapter 11 Theory and Practice § 24.01 (1994). Of course, if substantive consolidation is appropriate, I must consider the U.S. Trustee’s dismissal motion in light of the Blairs’ consolidated assets and consolidated liabilities and must necessarily consider the totality of their joint circumstances in assaying whether granting them Chapter 7 relief would constitute a “substantial abuse.” Substantive consolidation is an equitable doctrine. See e.g., Reider v. FDIC (In re Reider), 31 F.3d 1102, 1105 (11th Cir.1994); Colonial Realty Co., 966 F.2d at 59; In re Smith and Kourian, 216 B.R. at 687 n. 2; see generally 4 Queenan, supra, §§ 24.01-24.22. Substantive consolidation of joint debtors’ separate estates is a matter within my discretion, see Fed. R. Bankr.P. 1015 advisory committee’s note, but that discretion must be exercised to effect a fair result to the parties whose interests will be affected (viz creditors). See In re Birch, 72 B.R. 103, 106 (Bankr.D.N.H.1987)(spouses’ estates would not be consolidated because to do so would affect the creditors of each differently and the estates were not inextricably entwined); In re Snider Brothers, 18 B.R. 230, 234 (Bankr.D.Mass.l982)(“[T]he only real criterion is ... the economic prejudice of continued debtor separateness versus the economic prejudice of consolidation.”). Absent substantive consolidation, Rodney’s creditors may look to Rodney’s assets (and, in Chapter 13 or outside bankruptcy, Rodney’s assets and" }, { "docid": "17980123", "title": "", "text": "S.W.2d 493 (Tenn.App.1978) (“[Wjhen personalty is jointly acquired by husband and wife without limitations or conditions attached to it, it becomes entirety property with a right of survivorship.”). Since the property was held by Mr. and Mrs. Crowell as tenants by the entirety, the property interest of each estate was limited to a survivorship interest. In re Walls, 45 B.R. 145 (Bankr.E.D.Tenn.1984). The debt- or’s right to the use, possession, and income from this property passed out of his estate pursuant to the “automatic” exemption allowed under 11 U.S.C. § 522(b)(2)(B) (West 1979). Waldschmidt v. Hamilton, 32 B.R. 337, 339 (Bankr.M.D.Tenn.1983); Waldschmidt v. Shaw, 5 B.R. 107 (Bankr.M.D.Tenn.1980). Accordingly, the estates could sell only the debtors’ survivorship interests in the property and keep any proceeds above the amount exempted. The trustee asserts that the debtors’ joint petition operated to substantively consolidate the estates and, accordingly, obviates any need to examine the effect of Mr. Crowell’s death on the ownership interest of either estate. To determine the effect of a joint petition requires an examination of the property interests of each estate separately. Under 11 U.S.C. § 302(a) (West 1979), a case is commenced with the filing of a single petition by an individual that may be a debtor and such individual's spouse. “Section 302 is designed for ease of administration and to permit the payment of only one filing fee.... but separate estates will exist for each debtor unless and until the court orders substantive consolidation of the estates.” In re Stuart, 31 B.R. 18 (Bankr.D.Conn.1983). Rule 1015 of the Federal Rules of Bankruptcy Procedure provides that the court may order joint administration of a joint petition. In order to substantively consolidate the two estates under a joint petition, the court must make a determination pursuant to 11 U.S.C. § 302(b) (West 1979). The court has ordered neither joint administration nor consolidation in this bankruptcy proceeding. Accordingly, the court must treat the two estates separately in dealing with the property interests at issue and, to determine these interests, consider the effect of Mr. Crowell’s death. Since Rule 1016 of the" }, { "docid": "18548660", "title": "", "text": "a Chapter 7 trustee’s administration the non-exempt entirety equity in Debtors’ principal residence from their respective bankruptcy estates to the extent only one spouse is liable on a debt. This interpretation is consistent with bankruptcy courts in other jurisdictions which, applying laws of different states, have concluded that a Chapter 13 debtor may claim tenancy by the entirety property as exempt under § 522(b)(2)(B) as to individual creditors. See In re Chandler, 148 B.R. 13, 15 (Bankr.E.D.N.C.1992); In re Banks, 22 B.R. 891 (Bankr.W.D.N.C.1982); In re Thomas, 14 B.R. 423, 427-28 (Bankr.N.D.Ohio 1981) Cf. In re Digaudio, 127 B.R. 713 (Bankr.D.Mass.1991) (applying the Massachusetts statute and state judicial interpretations). This Court concludes that after payment of joint debts, entirety equity is returned to each owner as an entirety interest and not as an interest in common. III. Calculating non-exempt equity in the residence Debtor argues that spouses cannot be forced to file jointly. That very well may be true, but § 1325(a)(4) requires an analysis based upon the liquidation of a particular debtor’s estate. Since each did, in fact, file a separate case the Court must conduct a separate § 1325(a)(4) analyses: Residential Fair Market Value = $54,100 (minus) Hypothetical real estate broker fee = $ 3,787 (minus) Homestead exemption = $ 8,000 (minus) Head of household exemption = $ 1,350 (minus) First mortgage = $ 7,960 = $33,003 TOTAL NON-EXEMPT RESIDENTIAL EQUITY Thus, the Debtors have $33,003 in nonexempt equity in their principal residence held by tenancy-in the entirety. Once the aggregate amount of joint debt ($8,829) is subtracted from this equity, $24,174 remains. A hypothetical Chapter 7 Trustee would allocate one half of this sum, or $12,087, to each spouse or to each spouse’s estate. See § 363(j) ; In re Meyer, 187 B.R. 650, 652 (Bankr.W.D.Mo.1995), but as discussed above, this amount would be exempt from administration from each individual Debtor’s hypothetical estate pursuant to § 522(b)(2)(B). Husband has separate unsecured debts of $15,170 and Wife has separate unsecured debts of $19,895. Chapter 7 creditors could not reach any of the entirety equity to the extent only" }, { "docid": "12147453", "title": "", "text": "joint income tax refund is attributable has no ownership interest in the refund. As a result, Coal-ee was not entitled to claim exemptions in the refunds resulting solely from Brian’s withholdings. The Bankruptcy Court’s Order sustaining the Trustee’s objection to her exemption is, therefore, AFFIRMED. . The Honorable Nancy C. Dreher, Chief Bankruptcy Judge, United States Bankruptcy Court for the District of Minnesota. . First Nat'l Bank of Olathe v. Pontow (In re Pontow), 111 F.3d 604, 609 (8th Cir.1997); Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir.1997); Fed. R. Bankr.P. 8013. . In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002). . In re Benn, 491 F.3d 811, 813 (8th Cir.2007) (\"A debtor’s anticipated tax refund, to the extent it is attributable to events occurring prior to the filing of the petition for bankruptcy, is part of the bankruptcy estate.”). .See Thomas v. Peyton, 274 B.R. 450, 456 (E.D.Va.2001) (“When spouses file a joint petition for bankruptcy, the separate estates are administratively consolidated for convenience and efficiency but they remain legally distinct for purposes of satisfying creditors' claims.”); In re Beck, 298 B.R. 616, 624 (Bankr.W.D.Mo. 2003) (\"Although the filing of a joint case creates an estate under 11 U.S.C. § 541, separate estates exist for each debtor, unless or until the court orders substantive consolidation.”); 11 U.S.C. § 522(m) (\"Subject to the limitation in subsection (b), this section shall apply separately with respect to each debtor in a joint case.”). . See In re Kleinfeldt, 287 B.R. at 292 (listing the three approaches) (citing In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996)). . See, e.g., Kleinfeldt, 287 B.R. at 292-93; In re WDH Howell, 294 B.R. 613, 618 (Bankr. D.N.J.2003); In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985). . See, e.g., In re Kestner, 9 B.R. 334 (Bankr. E.D.Va.1981). . See, e.g., In re Trickett, 391 B.R. 657 (Bankr. D.Mass.2008); In re Marciano, 372 B.R. 211 (Bankr.S.D.N.Y.2007). In re Barrow, 306 B.R. 28 (Bankr. W.D.N.Y.2004); In re Hejmowski, 296 B.R. 645 (Bankr.W.D.N.Y. 2003); Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913" }, { "docid": "15640548", "title": "", "text": "417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974); Segal v. Rochelle, 382 U.S. 375, 380, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Nevertheless, while the scope of § 541 is very broad, it is specifically limited to a debtor’s interest in the property; third-party interests are not included. Therefore, a debtor’s bankruptcy estate will not include a third-party’s undivided interest in property eo-owned with the debtor. In re Murray, 31 B.R. 499, 501-02 (Bankr.E.D.Pa.1983). See also 11 U.S.C. § 363(h)/(j) (recognizing co-owner’s separate interest in property owned with the debtor). It is based upon this tenet, by which the Debtor argues that on account of their joint tax filing, one-half of the proceeds due from his tax overpayment belong solely to his wife, and thus did not become property of his bankruptcy estate. In response, however, the Trustee argues that the Debtor’s spouse, despite being a cosignatory on the Debtor’s tax return, has no interest in any refund that became due because she did not contribute to the overpayment. For purposes of § 541(a), whether a party has an interest in property and the extent of that interest is determined by applicable nonbankruptcy law. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979). As this rule relates to a non-earning spouse’s property interest in the other spouse’s tax overpayment, a court in this same division has held two things. In re Taylor, 22 B.R. 888, 890 (Bankr.N.D.Ohio 1982). First, Ohio law, and not federal tax law, controls the issue of whether a debtor has an interest in a tax overpayment. Id. at 890. Second, and at the heart of the instant matter, despite being a cosignatory, a “non-income producing spouse has no property interest, ... in an income tax refund made jointly payable to husband and wife debtors.” Id. at 891. As a basis for these holdings, the Court In re Taylor adopted the legal reasoning previously set forth in Butz v. Wheeler, 17 B.R. 85 (Bankr.S.D.Ohio 1981), stating: ... the mere signing of a joint husband and wife tax return" }, { "docid": "20239221", "title": "", "text": "estates are administered jointly pursuant to section 302(b). They have not been substantively consolidated. See In re Blair, 226 B.R. 502, 506 (Bankr.D.Me.1998). While this legal conclusion may be a distinction without a difference in cases in which the spouses own jointly all assets and owe jointly all debts, it is relevant in cases in which one spouse owns significant amounts of separate property or owes significant amounts of debt upon which the other spouse is not obligated. In such cases, determining the proper apportionment of the spouses’ assets is important to the trustee and the creditors and also respects the fact that the Code anticipates married debtors in a joint case will make separate claims to exemptions. See Carlson, 394 B.R. at 497 (“Allowing debtors to ‘transform’ separate property to joint property, with the result being to allow a co-debtor spouse to claim an exemption in property she does not own, or to allow a non-debtor spouse to keep half a tax refund out of the debtor-spouse’s estate, is not equitable.”); see also 11 U.S.C. § 522(m). Contrary to the Debtors’ suggestion, the Trustee is not asking the Court to change its position on the apportionment of a joint asset. The law has always required the Court to respect the individual ownership of property by spouses in a joint case unless the cases have been substantively consolidated. Those bankruptcy courts adopting what is often referred to as the “majority” rule — that the refund should be divided based upon the withholding — have done so in reliance upon the fact that the applicable state law does not presume equal ownership of property by spouses. See Carlson, 394 B.R. at 494 (applying Minnesota law); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004) (applying Ohio law). Georgia law, like that applicable in the Carlson case, has no presumption of equal ownership of property between spouses. See O.C.G.A. § 19-3-9 (“The separate property of each spouse shall remain the separate property of that spouse, except as provided in Chapters 5 and 6 of this title and except as otherwise provided by law.”)." }, { "docid": "19943950", "title": "", "text": "the 2006 tax refund. 10. On February 24, 2007, Debtor filed an Amended Schedule B indicating that Debtor anticipates receiving a $4,600.00 tax refund, but asserting that his share of that refund is only $2,200.00. Debtor also filed an Amended Schedule C, wherein Debtor seeks a $900.00 exemption for the anticipated tax refund. CONCLUSIONS OF LAW The filing of a bankruptcy petition by Debtor resulted in the creation of an estate subject to administration by the Trustee for the benefit of Debtor’s unsecured creditors. § 541(a). This estate is comprised of all legal or equitable interests of Debtor in property, including a tax refund, to the extent the overpayment was made prepetition. Campbell v. Woods (In re Woods), No. 97-80172-W, slip. op. at 5 (Bankr.D.S.C. Dec. 1, 1997). While the scope of “estate property” under § 541 is broad, a debtor’s bankruptcy estate does not include a third-party’s undivided interest in property co-owned with the debtor. In re Lock, 329 B.R. 856, 858 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. 320, 322 (Bankr.N.D.Ohio 2004); In re Murray, 31 B.R. 499, 501-02 (Bankr.E.D.Pa.1983). While the parties do not dispute that some portion of the tax refund belongs to the estate, Debtor objects to the Trustee’s allocation of the refund. Debtor argues that his wife has a one-half interest in the subject tax refund and therefore her portion is not property of the bankruptcy estate. The Trustee concedes that some portion of the tax refund belongs to Debt- or’s wife, but argues that the pre-petition portion should be allocated proportionally in accordance with the income produced by Debtor and his wife. Thus, the issue to be determined is the amount of the tax refund that constitutes property of Debt- or’s estate. This is an issue of first impression in this district. Bankruptcy courts in other districts have adopted three different approaches to determine the portion of a tax refund to which a debtor’s estate is entitled when a joint tax return has been filed with a non-debtor spouse. The majority approach holds that the tax refund from a joint tax return should be" }, { "docid": "12924508", "title": "", "text": "of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint ease under a chapter of this title constitutes an order for relief under such chapter. (b) After the commencement of a joint case, the court shall determine the extent, if any, to which the debtor’s estates shall be consolidated. 11 U.S.C. § 302. “Section 302(a) permits a married couple to file a joint petition. Section 302 is designed for ease of administration and to permit the payment of one filing fee. In re Crowell, 53 B.R. 555, 557 (Bankr.M.D.Tenn.1985). But, as the Debt- or points out, the joint petition actually creates two separate bankruptcy estates.” In re Estrada, 224 B.R. 132, 135 (Bankr.S.D.Cal.1998) (citations omitted). Unless the joint debtors’ estates are consolidated by the Court pursuant to § 302(b), the two estates remain separate. In re Estrada, 224 B.R. at 135. Rule 1015(b) of the Federal Rules of Bankruptcy Procedure supports the conclusion that the filing of a joint case creates two separate estates. Rule 1015(b) provides in part: Rule 1015. Consolidation or Joint Administration of Cases Pending in Same Court (b) CASES INVOLVING TWO OR MORE RELATED DEBTORS. If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife .... the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. ... Fed.R.Bankr.P. 1015(b)(Emphasis supplied). See also In re Goldstein, 383 B.R. 496, 500 (Bankr.C.D.Cal.2007). The Eleventh Circuit Court of Appeals adheres to the determination that the filing of a joint petition creates two separate estates. “The filing of a joint petition by a husband and wife does not result in the automatic substantive consolidation of the two debtors’ estates.... Used as a matter of convenience and cost saving, it does not cx-eate substantive rights.” In re Reider, 31 F.3d 1102, 1109 (11th Cir.1994). “Under joint administration, the estate of" }, { "docid": "13817361", "title": "", "text": "which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort that would result if cases involving related debtors were to proceed separately. The most significant difference between joint administration and substantive consolidation is that joint administration requires the estate of each debtor to be kept separate and distinct. Joint administration does not affect the substantive rights of creditors and other interested parties. Thus, administrative efficiency is achieved without sacrificing the parties’ substantive rights. Conversely, substantive consolidation effects a merger of the consolidated debtors’ estates, which creates a single estate that is recognized throughout the remaining bankruptcy process. J. Stephen Gilbert, Substantive Consolidation in Bankruptcy: A Primer, 43 Vand. L.Rev. 207, 212 (1990)(footnotes omitted). See also Fed. R. Bankr.P. 1015(b)(court may order joint administration of estates of husband and wife); Fed. R. Bankr.P.2009(a)(sin-gle trustee may oversee jointly administered estates); Fed. R. Bankr.P.2009(e)(trustee shall keep separate accounts for each jointly administered estate); Tisha Morris Federico, The Impact of the Defense of Marriage Act on Section 302 of the Bankruptcy Code and the Resulting Renewed Interest in the Equitable Doctrine of Substantive Consolidation, 103 Com. L.J. 82, 83-87 (1998). After substantive consolidation, “the consolidated estates create a single fund from which all of the claims of the consolidated debtors are satisfied.” Gilbert, supra, at 209. See also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Smith v. Mortgage Funding Corp. (In re Smith and Kourian), 216 B.R. 686, 687 n. 2 (1st Cir. BAP 1997); James F. Queenan et al., Chapter 11 Theory and Practice § 24.01 (1994). Of course, if substantive consolidation is appropriate, I must consider the U.S. Trustee’s dismissal motion in light of the Blairs’ consolidated assets and consolidated liabilities and must necessarily consider the totality of their joint circumstances in assaying whether granting" }, { "docid": "12403991", "title": "", "text": "Unless otherwise noted, all references herein to \"section” refer to section of the Bankruptcy Code, 11 U.S.C. §§ 101-1330. . Federal Rule of Bankruptcy Procedure 1015(b) in relevant part provides: If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife ..., the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. . Although an old case, the opposing parties have offered no authority for this Court to question the holding in In re Dobbel’s Estate, 104 Cal. 432, 435, 38 P. 87 (1894), that the insurance proceeds are a spouse’s separate property even if purchased with community assets. . The Court declines to consider whether the Debtor is jointly liable for the partnership debts as this should be done in the context of the claims objection procedure. . The Court did find administratively consolidated cases where the court separately converted one of the cases. In re Sibarium, 107 B.R. 108, 109 (N.D.Tex.1989). .The trustee’s opposition states there are approximately $186,570.11 in partnership claims while the Court's claims register lists unsecured claims in an approximate amount of $133,-775.57, and the schedules reflect secured claims of $122,265.00, both amounts well within the confines of section 109(e)'s requirements for a chapter 13 debtor. Additionally, the filed schedules reflect that the Debtor has a regular monthly income of $5,537.00." }, { "docid": "15640552", "title": "", "text": "the immutable logic of the court’s reasoning in In re Taylor, there is simply no basis to limit it to solely the context of a non-incoming producing spouse’s claiming an exemption in the tax refund of the other spouse. Thus, this Court takes the position that, for purposes of § 541(a), a spouse has no interest in the proceeds due from any tax refund as the result of the other spouse making a tax overpayment. As for other courts, this, by far, is the prevailing view on the issue. See, e.g., In re Kleinfeldt, 287 B.R. 291, 292-93 (10th Cir. BAP 2002) (nondebtor spouse who had no tax withholdings does not have an interest in half of the tax refund despite the filing of a joint tax return); In re WDH Howell, LLC, 294 B.R. 613, 620 (Bankr.D.N.J.2003) (non-incoming producing spouse did not have any interest in tax refund checks representing a return of wages earned by her debtor-husband pre-petition); In re Smith, 77 B.R. 633, 635 (Bankr.N.D.Ohio 1987) (“non-income producing debtor-spouse is without a requisite property interest in a tax refund which would entitle such spouse to an exemption.”); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987) (“a joint filing does not change the ownership of property rights between taxpayers.”); In re Carey, 1993 WL 541461 2 (Judge Williams, Bankr.N.D.Ohio) (“refund of taxes paid by one spouse, who files jointly with the other spouse, remain the property of the wage-earning spouse.”). But see Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000) (“in an appropriate case a non-income producing non-filing spouse, who is a homemaker that makes substantial contributions to the family, may be entitled to have a property interest in a joint tax refund check, notwithstanding that all the taxable income was generated by the debtor-spouse.”) Consequently, in this particular case, since the Debtor’s spouse did not contrib ute to any of the tax overpayments made in the year 2002, she has no property interest in any refund due therefrom which can be excluded from the Debtor’s bankruptcy estate. As a consequence, the Trustee, subject" }, { "docid": "1174642", "title": "", "text": "U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) (interests in property determined under state law); In re Crowell, 53 B.R. 555, 557 (Bankr.M.D.Tenn.1985) (“To determine the effect of a joint petition requires an examination of the property interests of each estate separately.”). Thus, in a community property state, like Texas, property owned by one or both of the spouses may include the separate property of the wife, the separate property of the husband, “special” or sole management community property of the wife and of the husband which is hable for the individual debts of the non-manager spouse, and jointly owned community property. That there are two estates each consisting of each spouses’ respective separate property and sole management community property plus the community’s interest in joint community property is supported by the very section that recognizes joint petitions. Section 302(b) provides: After the commencement of a joint case, the court shall determine the extent, if any, to which the debtors’ estates shall be consolidated. 11 U.S.C.A. § 302(b). This provision has been consistently interpreted to signify that a joint filing results in two estates, absent an order of substantive consolidation by the court. See In re Chandler, 148 B.R. 13 (Bankr.E.D.N.C.1992). “Absent a court Order to consolidate, joint administration has absolutely no impact on the legal rights and obligations of the Debtors[s], Creditors, or the Trustee.” In re McCulley, 150 B.R. 358, 360 (Bankr.M.D.Pa.1993); see also In re Scholz, 57 B.R. 259 (Bankr.N.D.Ohio 1986); In re Crowell, 53 B.R. 555, 557 (Bankr.M.D.Tenn.1985); Ohio v. Wilkinson, 24 B.R. 474 (Bankr.S.D.Ohio 1982). Thus, while joint cases generally “will be administered jointly, unless there is an objection[,] [consolidation, ..., is not typically granted unless a party seeks it and there is proper justification.” 1 Norton Bankr. L. & Prac.2d § 19.11 & n. 85, at 19-23 (Clark Boardman Callaghan 1993) (citing In re Coles, 14 B.R. 5 (Bankr.E.D.Pa.1981)). Hence, the legislative admonition that “ “[t]his section ... is not a license to consolidate in order to avoid other provisions of the title to the detriment of either the debtors or their creditors." } ]
126954	F.2d 934, 50 CCPA 1153. Appellant’s reply brief in rebuttal argues that since this is solely a question of law, rather than a question of technical facts, the issue may be raised here for the first time. We do not think the solicitor is correct in his contention. The section 102 (e) question may be properly raised here for the first time because we must determine whether the reference is available. The particular question, whether we may consider the Murray reference, must be settled prior to determining the legal effect of the disclosure of that reference. We find no compelling reason to overrule our recent decisions in In re Harry, supra, or In re Kander, 312 F.2d 834, 50 CCPA 928, REDACTED d 316, 44 CCPA 904, or go contrary to the Court of Appeals of the District of Columbia circuit, Hazeltine Research, Inc. v. Ladd, 340 F.2d 786, cert. granted 380 U.S. 960, 85 S.Ct. 1108. Thus Murray being available as prior art for a section 103 rejection, we look next to see whether that section is satisfied. Minion describes production of cortisone hemisuccinate by the same proc ess as appellant uses with hydrocortisone. Cortisone differs from hydrocortisone in having a keto group [0=C<] rather than a hydroxyl group [HO<X] at the 11 position. The hemisuccinate of cortisone is found by Minion to be four times as soluble in water as the	[ { "docid": "21178393", "title": "", "text": "application the art was fully aware of the substitution of Cl and CF3 potentiating groups in phenothiazines analogous to those now claimed by Zenitz. The examiner held, and the board agreed, that the substitution of CF3 for Cl in the phenothiazines disclosed by Cusic, would be obvious to one of ordinary skill in the art. Zenitz contends that the Cusic, Gulesich and Ullyot patents are not available as references for an obviousness rejection under Section 103 because they issued on applications which, although filed earlier than his, were copending therewith. Zenitz maintains that he could not have been aware of the Cusie or Gulesieh disclosures at the time he filed his application. This court has held in a number of decisions that a United States patent speaks for all it discloses as of its filing date, even when used in combination with other references. In re Kander, 312 F.2d 834, 50 CCPA 928; In re Gregg, 244 F.2d 316, 44 CCPA 904; In re Seid, 161 F.2d 229, 34 CCPA 1039. In re Harry, 333 F.2d 920, 51 CCPA, --, decided concurrently herewith, holds that 35 U.S.C. § 103 is in pari materia with 35 U.S.C. § 102(e) and points out that the latter section was intended to enact the rule of Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651, wherein the court said: “ * * * The delays of the patent office ought not to cut down the effect of what has been done. The description shows that Whitford was not the first inventor. Clifford had done all that he could do to make his description public. He had taken steps that would make it public as soon as the Patent Office did its work, although, of course, amendments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing Whitford to profit by the delay and make himself out to be the first inventor when he was not so in fact, when Clifford had shown knowledge" } ]	[ { "docid": "22934601", "title": "", "text": "with undeveloped areas is at least partially completed prior to substantial permeation and development of the next inner emulsion layer by said liquid composition. In allowing it, the board pointed out that it is limited to control of diffusibility by layerwise permeation, which, the board said, “the art of reocrd * * * does not suggest * * As appellants’ brief correctly points out, the issues require an adjudication of the obviousness of each of the 30 appealed claims in view of the prior art but before we can do this we have to deal with Point 2 of that brief raising questions as to whether some of the references underlying the rejection are, in law, available as prior art. This question, as argued, falls into two parts. What References are “Prior Art” — Part I This first aspect of the question involves the issue recently before the United States Supreme Court in Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ, 429 (1965). The Land, Rogers ’606, and Yutzy patents were all copending with the application on appeal. The statutory ground of rejection involved in this question is 35 USC 103 obviousness. Though appellants concede such references are “prior art” under section 102, they raised the old question whether, in view of the unavailability of the contents of pending applications under 35 USC 122, the patents issuing thereon are available as prior art to show obviousness under section 103, as of their filmg dates in the United States. See 35 USC 102(e). Appellants held this question open in their brief, filed May 7, 1965, because Haz&ltine was then pending before the Supreme Court. December 8, 1965, the point was decided adversely to appellants. Patents otherwise available as references may be used singly or combined as of their U.S. filing dates to support section 103 rejections though copending with the application at bar. We so held in In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964). With respect to this case, that makes Yutzy clearly available as a reference, no other question being raised" }, { "docid": "23495780", "title": "", "text": "facts” but mere pleading. It asserts that facts exist but does not tell what they are or when they occurred. The Patent Office must have such facts as will enable it and its reviewing'courts to judge whether there was construction and when it occurred, or whether there was dilb gence. The affidavits were properly rejected for non-compliance with the rule and all of the references are available. ' On the merits of the rejection on the references, we can find no error in the ruling of the Patent Office that it would be obvious, in •view of the secondary references, singly or together, to modify the ■structure of Shutt, the primary reference, by adding more telescoping sections and shortening all of the sections as necessary to reduce headroom requirements. We cannot see here a case of “hindsight reasoning” as alleged by appellant. It is clear to us that one familiar with the art, all of which relates to rigid, vertically moving, overhead crane structures of one kind or another, faced with the problem of reducing headroom requirement would, if possessed of any mechanical skill whatsoever, increase the number and reduce the length of ■the telescoping sections. The rest is routine engineering design to produce the proper movements and desired relative speeds of travel. Appellant argues, with respect to the Ernestus patent, that it was improperly used in support of a rejection under 35 U.S.C. 103, because it did not issue prior to Harry’s filing date. This court has often answered that argument before. The Ernestus patent’s filing date antedates any date on which appellant can rely and that is enough. In re Seid, 34 CCPA 1039, 161 F. 2d 229, 73 USPQ 431, and cases there cited; In re Gregg, 44 CCPA 904, 244 F. 2d 316, 113 USPQ 526, and In re Kander, 50 CCPA 928, 312 F. 2d 834, 136 USPQ 477. As was pointed out in the Gregg case, it had become settled, at least in this court, prior to the 1952 Patent Act “that a patent issued on an application which was copending with that of" }, { "docid": "23495781", "title": "", "text": "headroom requirement would, if possessed of any mechanical skill whatsoever, increase the number and reduce the length of ■the telescoping sections. The rest is routine engineering design to produce the proper movements and desired relative speeds of travel. Appellant argues, with respect to the Ernestus patent, that it was improperly used in support of a rejection under 35 U.S.C. 103, because it did not issue prior to Harry’s filing date. This court has often answered that argument before. The Ernestus patent’s filing date antedates any date on which appellant can rely and that is enough. In re Seid, 34 CCPA 1039, 161 F. 2d 229, 73 USPQ 431, and cases there cited; In re Gregg, 44 CCPA 904, 244 F. 2d 316, 113 USPQ 526, and In re Kander, 50 CCPA 928, 312 F. 2d 834, 136 USPQ 477. As was pointed out in the Gregg case, it had become settled, at least in this court, prior to the 1952 Patent Act “that a patent issued on an application which was copending with that of another applicant could properly be used as a reference against the claims of the other applicant even though'it did not disclose everything claimed, -and it was necessary to combine it with other references.” [Em-phasis added.] When a reference is so used, the rejection, of necessity, is based on section 103. We are not unaware that such use of so-called “copending patents” as references, where they are not complete anticipations under section 102, has long been a subject of debate, which debate has. continued under section 102(e) of the 1952 Act. In view of the fact that the practice is as old as this court (see In re Smith, 17 CCPA 752, 36 F. 2d 522, 4 USPQ 235, decided in 1929 and cited hi the Seid case), our latest application of it in the Kander case should not have come as a surprise to any one. We there rested squarely on the proposition that section 102(e) settles the question, making United States patents effective references as of the U.S. filing dates for all purposes, whether" }, { "docid": "22455933", "title": "", "text": "we are not convinced that synergism of the latter compositions is unexpected. Thus we consider the appellant’s composition to be obvious within the meaning of section 103. Although neither appellant nor the Patent Office raise the point in their briefs, claims 4-7 and 8-13 define appellant’s composition with greater specificity than claim 1. Nevertheless we consider these claims unpatentable. The quantity limitations of claims 4-7 do not distinguish appellant’s composition from “Salcort.” Appellant alleges no criticality in such limitations other than the broad assertion that “it is preferred to use smaller quantities of each of the essential active ingredients in the composition than when each such active ingredient is used alone to obtain a particular therapeutic response.” Apparently “Salcort” satisfies this desideratum. As to claims 8-13 we agree with the board, which sustained the examiner stating: Claims 8 to 13 are directed to composition including a salicylate and pred-nisone or prednisolone together with certain other ingredients. Appellant has not urged any patentable significance in these additional ingredients and we find none. The prior art shows that certain antacid materials and vitamin derivatives may also he included in this type of composition. The decision of the board is affirmed. Appellant’s specification states that the terms “prednisone” and “prednisolone” as used in the specification mean not only the alcohols delta-l-cortisone and delta-l-hydrocortisone, respectively, but also the therapeutically active 21-esters thereof, when the free alcohol is intended, it is referred to as “prednisone free alcohol” or “prednisolone free alcohol.” (Prednisone and cortisone differ solely in that the former has a double bond between the ,1 and 2 positions of the steroid nucleus, the latter a single bond. Prednisolone and hydro-cortisoné.differ in the same way. Apparently the board means \"clearly suggested” since the prior art does not anticipate the claims.under 35 U.S.C. 102(a). The nature of the rejection manifestly indicates that 35 U.S.C. 103 was intended by the board to be the basis for the rejection.. It would have been lielpflil, however, if the statutory basis had been expressly stated. We feel compelled/ to comment on the Patent Office analysis by which patentability under" }, { "docid": "22455926", "title": "", "text": "CCPA 928; 288 Fed (2d) 940; 129 USPQ 288. Further, the examiner had previously stated in his answer, The showings of record attempting to establish synergism in the claimed compositions are conceded to show improved results over the “Salcort” composition or Holt et al. combination therapy. * * * It is not believed that the issue here turns on the ability of an investigator to predict that the particular claimed steroids will be ’operable to give the improved result, 'but rather whether there is any reason to suppose that such steroids, generally, accepted in the art as being themselves improvements over cortisone acetate, would not be suitable. Applicant has not advanced any reason or presented any evidence that the prior art taught against prednisone or prednisolone in lieu of the cortisone of the “Sal-cort” or Holt et al. references. Therefore it would be expected that where the later available analogs of cortisone are known to be many times more physiologically active and otherwise to be preferred for lack of side effects over cortisone, that antirheumatic compositions containing said later available analogs would also be more active and have greater acceptability. Appellant argues that the Patent Office position is based on oversimplification of the problem of finding new anti-inflammatory agents with minimal side effects; that the mere existence of salicylate-cortisone tablets does not suggest substituting for cortisone the later-discovered more potent cortisone derivatives, prednisone and prednisolone; and that synergism attained by the new composition is unexpected. We affirm the rejection, however, since we believe the subject matter of the invention considered as a whole would have been obvious to one skilled in the art at the time the invention was made. But we do so on a rationale somewhat different from that of the Patent Office. Both the board and the solicitor consider the fact of superior pharmaceutical properties immaterial to determining obviousness. The board states, “The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior" }, { "docid": "2605121", "title": "", "text": "Miller et al. process or are wholly obvious over the features of said process which are disclosed.” In affirming, the board said: “* * * appellants have merely adapted the Miller et al. process to continuous operation which we believe to be well within the skill of a person versed in this art.” We agree. Appellants point to the fact that their application and the copend-ing Miller et al. patent are commonly owned. They argue that the reference, therefore, may support only a double-patenting rejection. Since, in appellants’ opinion, the • rejection is properly double-patenting, they allege error in the use of the Miller et al. disclosure as prior art. See, e.g., In re Hammell, 51 CCPA 1469, 1472, 332 F. 2d 796, 799, 141 USPQ, 832, 834 (1964). We must reject the premise that common ownership and copendency in themselves necessarily preclude consideration of a patent as a part of the prior art. A United States patent to another is a valid prior art reference when its United States filing date is earlier than the date of the applicant’s invention. 35 USC 102(e); Alexander Milburn Co. v. Davis-Bournonville, 270 U.S. 390 (1926). Appellants’ filing date, no earlier date having been proved, is their date of invention. A patent is “to another” when the “inventive entities” are different, In re Land, 54 CCPA 806, 368 F. 2d 866, 151 USPQ 621 (1966), and may then be used as prior art to make the determination required by 35 USC 103. Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ 429 (1965); In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964); see In re Hilmer, 53 CCPA 1287, 359 F. 2d 859, 149 USPQ 480 (1966). Appellants would have us carve out an exception to 35 USC 102(e) in the guise of interpreting “to another.” They recognize that in In re Land, supra, we decided that Land, as sole inventor, and Rogers, as sole inventor, were each “another” to Land and Rogers as joint inventors, despite the common ownership and copendency of the reference patents and" }, { "docid": "22934602", "title": "", "text": "with the application on appeal. The statutory ground of rejection involved in this question is 35 USC 103 obviousness. Though appellants concede such references are “prior art” under section 102, they raised the old question whether, in view of the unavailability of the contents of pending applications under 35 USC 122, the patents issuing thereon are available as prior art to show obviousness under section 103, as of their filmg dates in the United States. See 35 USC 102(e). Appellants held this question open in their brief, filed May 7, 1965, because Haz&ltine was then pending before the Supreme Court. December 8, 1965, the point was decided adversely to appellants. Patents otherwise available as references may be used singly or combined as of their U.S. filing dates to support section 103 rejections though copending with the application at bar. We so held in In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964). With respect to this case, that makes Yutzy clearly available as a reference, no other question being raised as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, nor could they have done so as Blout and Rogers was not decided until more than four months after the board decision. The solicitor’s brief objects to our considering it on the usual ground that we do not generally consider points not raised below, citing In re Herthel, 36 CCPA 1095, 174 F. 2d 935, 82 USPQ 55, In re Panagrossi et al., 47 CCPA 904, 277 F. 2d 181, 125 USPQ 410, and In re Soli, 50 CCPA 1288, 317 F. 2d 941, 137 USPQ 797. We find nothing in those cases or in the two other cases cited in Herthel which precludes us from dealing with this point of law. In none of those cases" }, { "docid": "22455928", "title": "", "text": "art.” The solicitor states, “Whether the art recognized that the claimed combination ‘might demonstrate concert of action of its elements in the significant area of lessened adrenal atrophy’ is immaterial, since the sole issue in this appeal is whether it would have been obvious to substitute prednisone or pred-nisolone for cortisone in the combination of Salcort or Holt, and not whether it would be obvious that such substitution would produce lessened adrenal atrophy.” We do not entirely agree with this framing of the issue. This court has frequently stated that properties of chemical compounds must be considered in determining obviousness under 35 U.S.C. 103. In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270; In re Petering and Fall, 49 CCPA 993, 301 F. 2d 676, 113 USPQ 275; In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 42. We think this also applies to such compositions as we have here, i.e., admixtures of two or more compounds. Therefore, the issue of obviousness in this case can be resolved only after considering the differences between the prior art and the claimed compositions chemically and in view of their pharmaceutical' properties. To do so we consider the cited references and what we believe they would teach one skilled in the art. Appellant agrees that cortisone-salicylate mixtures are anti-inflammatory agents, and that prednisone and prednisolone possess anti-inflammatory activity three to four times as great as cortisone or hydrocortisone. The disagreement revolves around interpretation of Holt et al. Appellant contends that Holt et al. do not “suggest” substitution of prednisone or prednisolone for cortisone, since their data áre “inconclusive” and warn of “toxic complications.” Further appellant argues that one skilled in the art, upon finding that prednisone and prednisolone possess enhanced potency without increased side effects, would cease looking for better anti-inflammatory agents. We do not agree with appellant’s interpretation of Holt et al., pertinent portions of which state (all emphasis onrs) : When planning this new study [including combined salicylate-cortisone therapy] we could find no report of combined treatment of this kind. We expected to reach" }, { "docid": "22455925", "title": "", "text": "“Salcort” combination. Since it is known thlat the steroids employed by appellant have the same effect as cortisone, except for being more potent,, it appears to us that it would be- obvious-to at least try -to substitute those steroids for cortisone in. combinations in which cortisone had been employed such as in the “Salcort” composition. The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art. See In re Libby, 45 CCPA 944; 1958 C.D. 324; 118 USPQ 94; 733 O.G. 294 ; 255 Fed. (2d) 412; and In re Gauerke, 1937 C.D. 119; 475 O.G. 3; 24 CCPA 725; 86 Fed. (2d) 330. We do not consider the contentions relative to the fact that Holt et al. did not employ controls or that the results there may have been considered somewhat uncertain material to our conclusion. Obviousness does not require absolute predictability. In re Moreton, 771 O.G. 621; 48 CCPA 928; 288 Fed (2d) 940; 129 USPQ 288. Further, the examiner had previously stated in his answer, The showings of record attempting to establish synergism in the claimed compositions are conceded to show improved results over the “Salcort” composition or Holt et al. combination therapy. * * * It is not believed that the issue here turns on the ability of an investigator to predict that the particular claimed steroids will be ’operable to give the improved result, 'but rather whether there is any reason to suppose that such steroids, generally, accepted in the art as being themselves improvements over cortisone acetate, would not be suitable. Applicant has not advanced any reason or presented any evidence that the prior art taught against prednisone or prednisolone in lieu of the cortisone of the “Sal-cort” or Holt et al. references. Therefore it would be expected that where the later available analogs of cortisone are known to be many times more physiologically active and otherwise to be preferred for lack of side effects over cortisone, that antirheumatic" }, { "docid": "1407902", "title": "", "text": "and Observer article, thus the reliance on Palmquist was not well founded. The solicitor also points out that the two lines of argument are inconsistent, the appellant arguing on the one hand that the invention had not been comfleted prior to the article which therefore cannot be a barring anticipatory disclosure, and, on the other hand, that the invention had been comfleted prior to the publication, and in view of Palmquist the article was not an available reference for a section 103 rejection. Appellant’s reply brief is devoted almost entirely to the argument based on Palmquist, urging that since The News and Observer article is a report of appellant’s own invention it is both absurd and unnecessary to require him to swear behind it, citing M.P.E.P. 715.01(c). We think the contradiction between the two lines of appellant’s argument is more apparent than real. As we see it, appellant is arguing that The News and Observer article is not a complete disclosure, and so much of the invention as was disclosed therein was made prior to the publication thereof. Nevertheless, the line of argument concerning the unavailability of The News and Observer article has been rendered moot by our recent decision in In re Foster, 52 CCPA 1808, 343 F. 2d 980, 145 USPQ 166, in which that aspect of In re Palmquist relied on by appellant for support was explicitly overruled. We agree with the board’s holding that The News and Observer article is a valid reference under 35 U.S.C. 102(b) for what is disclosed therein, since it was available to the public for more than a year prior to applicant’s filing date. In re Ruscetta, 45 CCPA 968, 255 F. 2d 687, 118 USPQ 101; In re Foster, supra. The publication is not removed as a reference merely because it discloses appellant’s own invention, or an early stage of that invention, and the publication, having been available to the public for more than a year, may not be overcome by a showing of invention prior to the publication date. The question then is to determine what is disclosed therein" }, { "docid": "22455924", "title": "", "text": "also known in the art respectively as prednisone and prednisolone. The rejection is stated by the board as “lacking in invention over ^Salcort’ and the Holt et al. publication in view of the Drug Trade News or Bunim et al. references.” Although not specifically stated, 35 TJ.S.C. 103 is obviously the statutory basis. The sole issue before us is, therefore, obviousness of the claimed composition in view of the ■cited prior art. The Patent Office position is that one skilled in the art, knowing of the “Salcort” composition and knowing of the results of the combined therapy of Holt et al., would obviously substitute the later-discovered more physiologically active prednisone or prednisolone for cortisone in “Salcort” to produce a better anti-inflammatory composition. Improved results, conceded to be shown by appellant, are considered immaterial in the Patent Office .view since the composition is obvious. As stated bythe board, We are of tbe opinion that it would readily occur to one skilled in this art that these more potent steroids could be substituted for cortisone in the “Salcort” combination. Since it is known thlat the steroids employed by appellant have the same effect as cortisone, except for being more potent,, it appears to us that it would be- obvious-to at least try -to substitute those steroids for cortisone in. combinations in which cortisone had been employed such as in the “Salcort” composition. The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art. See In re Libby, 45 CCPA 944; 1958 C.D. 324; 118 USPQ 94; 733 O.G. 294 ; 255 Fed. (2d) 412; and In re Gauerke, 1937 C.D. 119; 475 O.G. 3; 24 CCPA 725; 86 Fed. (2d) 330. We do not consider the contentions relative to the fact that Holt et al. did not employ controls or that the results there may have been considered somewhat uncertain material to our conclusion. Obviousness does not require absolute predictability. In re Moreton, 771 O.G. 621; 48" }, { "docid": "15483843", "title": "", "text": "as to a single species. See In re Kyrides, 159 F.2d 1019, 34 CCPA 920. Here Rausser et al. was awarded priority on the basis of the disclosure of the hydrogen species in their parent application, being entitled to its filing date, July 22, 1957, as the date of conception and constructive reduction to practice. Since it has been adjudicated that Taub et al. did not meet their burden of proof showing they were the first inventors of the 9-hydrogen species, they cannot be said to be the first inventors thereof. However, no such determination as to the 9a-fluoro species was made. Since both parties in eifect rest on their filing dates as to the 9a-fluoro species, the record indicates that Taub et al. are prior as to that species, their parent case being earlier than the Rausser et al. continuation case. Thus, within the fact pattern here, logic dictates that count 2 cannot be the prior invention of another applicable against Taub et al. insofar as the 9a-fluoro species is concerned, under section 102(g). Thus the rejection must fall, and it becomes necessary to remand the case for a full consideration of the issue on which appellants attempted to join the Patent Office, the determination of whether the 9a-fluoro species is obvious over the 9-hydrogen species of the count in view of appellants’ affidavits. We do not read In re Fenn, 50 CCPA 1163, 315 F.2d 949, 137 USPQ 367; In re Boileau, 163 F.2d 562, 35 CCPA 727; In re Cole, 82 F.2d 405, 23 CCPA 1057, or In re Sola, 77 F.2d 627, 22 CCPA 1313 to the contrary. Similarly, since the holding in In re Gregg, 244 F.2d 316, 44 CCPA 904, 907, was founded on the fact that “there is no evidence to show completion of the invention covered by the appealed claims by appellant at any time prior to Coakwell’s filing date,” that is, “the Coakwell patent is a reference under Section 102(e) * * we do not find that case to indicate a contrary result. For the foregoing reasons the rejection of the" }, { "docid": "15080608", "title": "", "text": "Inc., the assignee of the application here on appeal. Both appellants’ application and briefs, and the art of record contain various meanings for the term “synergism.” Solimán defines “synergism” to mean the algebraic summation of desirable efleets. Goodman terms this “summation.” The opposite, algebraic summation of undesirable effects is termed “antagonism” by Solimán. Where the combined action is unexpectedly greater than the algebraic sum, it is termed “potentiation” by both Goodman and Solimán, or “supplemental synergism” (Solimán alone). The usual meaning appears to be that of Goodman, algebraic summation being termed summation or mere addition, and where the combined action is greater than the sum of the actions of the ingredients, the term “synergism” applies, In re Huellmantel, 51 CCPA 845, 324 F. 2d 998, 139 USPQ 496 ; In re Luvisi, 52 CCPA 1063, 342 F. 102, 144 USPQ 646. What section 103 requires is “unexpected synergism,” In re Huellmantel, supra, 51 CCPA at 850, the same as “potentiation” or “supplemental synergism” in the art of record here. Thus we read appellants’ second position to be that the results obtained upon the administration of the therapeutic composition demonstrate unexpected synergism in the reduction of dosage. Appellants’ evidence does not refute that view. Some 161 pages of the record are devoted to about 94 “Adenocort Case Reports” (some are duplicates) In which It Is Indicated that the following preparations were previously used to treat collagen disease conditions found amenable to “Adenocort” in the Case Reports: ACTH, Adenolin, Pablate, Calcium gluconate, Hypos, of Demerol/Phenergan [sic], Oral Codein/MS/Demerol, Tetracystine-Penieillin [sic], Sodium Salicylate-ASA Comp.-Anthropan Reía [sic] Betathiolin, Vltamins-Cod liver oil, Calcium, Sal-[unreadable], Hydrocortone TBA, Cortisone, Steroids, Buta-[unreadable], Protaxisol, My-[unreadable], Sigmagen, Madribon, Dela-pyryn Succinate, Antocort [sic], Adenolin Porte, Soma, Extensive Rx, other medication, Papase, Darvon Comp., My-B-Den, Equanil plus other tranquilizers, Prem/Te-[unreadable], BI2-Vitamin B, Analgesics, and unknown medications. Additionally, the sworn letter of Hein, supra fn. Indicates: * * * foreign protein, sulfur, gold, ACTH, cortisone type drugs, hydrocortisone, sali-cylates, enzymes, butazolidln type therapy, hydroxychloroquine preparations, and some of the newer steroids to mention a few * * * gre presently utilized In the" }, { "docid": "22219231", "title": "", "text": "the respective Bernstein teachings which show that 16a-hydroxy substituents are found on closely related steroids, the Bernstein compounds themselves differing from the claimed compounds solely in the absence of a 6a-methyl substituent. Thus appellants are not, nor do they pretend to be, the first to 6-methylate or 16-hydroxylate steroids of the type here involved. What appellants have done is to provide hydrocortisones bearing both these substituents and, accordingly, novelty of the claimed compounds has been conceded. While the issue could be stated, alternatively, as the converse of the above, we see no reason why our statement is not a proper interpretation of the examiner’s rejection. Appellants admit there are “gross structural similarities” between the compounds of claims 3 and 5 and the compounds Spero and Bernstein, but argue that “one need look only to the recent decisions of this Honorable Court to ascertain that the obviousness of chemical compounds, even of homologs * * , is no longer to be predicated solely on structural similarity. * * Here, the superimposition or ‘mechanistic overlaying’ of the compounds of Bernstein and Spero is clearly inappropriate to render the claimed compounds obvious * * *.\" citing In re Riden, Jr., 50 CCPA 1411, 318 F. 2d 761, 138 USPQ 112 for the latter proposition. We agree with appellants’ admonitions against deciding questions of chemical obviousness on the basis of structure alone, whether by means of a “mechanistic overlay” or otherwise. However, we think appellants have failed to present adequate evidence to overcome a prima facie showing of obviousness by reason of the admitted “gross structural similarities” of the art compounds, coupled with the fact those compounds are shown to have utility in the same area of pharmacological activity. During prosecution, appellants presented two affidavits, both by William E. Dulin, an employee of appellants’ assignee, The Upjohn Company, Kalamazoo, Michigan, which convincingly establish that the compound of claim 3 is 4.7 times more effective as an anti-inflammatory agent than the closest compound of Bernstein (IV) and that the compound of claim 5 is 1.6 times more effective as an anti-inflammatory agent than the" }, { "docid": "3971520", "title": "", "text": "not well founded. The solicitor also points out that the two lines of argument are inconsistent, the appellant arguing on the one hand that the invention had not been completed prior to the article which therefore cannot be a barring anticipatory disclosure, and, on the other hand, that the invention had been completed prior to the publication, and in view of Palmquist the article was not an available reference for a section 103 rejection. Appellant’s reply brief is devoted almost entirely to the argument based on Palmquist, urging that since The News and Observer article is a report of appellant’s own invention it is both absurd and unnecessary to require him to swear behind it, citing M.P.E.P. 715.01(c). We think the contradiction between the two lines of appellant’s argument is more apparent than real. As we see it, appellant is arguing that The News and Observer article is not a complete disclosure, and so much of the invention as was disclosed therein was made prior to the publication thereof. Nevertheless, the line of argument concerning the unavailability of The News and Observer article has been rendered moot by our recent decision in In re Foster, 343 F.2d 980, 52 CCPA-, in which that aspect of In re Palmquist relied on by appellant for support was explicitly overruled. We agree with the board’s holding that The News and Observer article is a valid reference under 35 U.S.C. § 102(b) for what is disclosed therein, since it was available to the public for more than a year prior to applicant’s filing date. In re Ruscetta, 255 F.2d 687, 45 CCPA 968; In re Foster, supra. The publication is not removed as a reference merely because it discloses appellant’s own invention, or an early stage of that invention, and the publication, having been available to the public for more than a year, may not be overcome by a showing of invention prior to the publication date. The question then is to determine what is disclosed therein and whether that disclosure, taken with prior art, renders the claimed invention obvious to one of ordinary" }, { "docid": "6022936", "title": "", "text": "family forms a homologous series, the constant difference between successive members being one carbon atom and two hydrogen atoms, e. g., CH4 (methane), C2H5 (ethane), etc. See notes 9-10 supra, for definitions of analogs and isomers. . See E. I. DuPont de Nemours & Co. v. Ladd, 117 U.S.App.D.C. 246, 328 F.2d 547 (1964); Parker v. Marzall, 92 F. Supp. 736 (D.D.C.1950); Application of Papesch, 315 F.2d 381, 50 CCPA 1084 (1963). . See, e. g., Application of Lohr, 317 F.2d 388, 50 CCPA 1274 (1963). . For recent discussion see Application of McLamore, 379 F.2d 985, 989-990 (C.C.P.A.1967); Application of Wagner, 371 F.2d 877 (C.C.P.A.1967); Application of Lunsford, 357 F.2d 380 (C.C.P.A.1966). . See Western, Is 35 U.S.C. § 103 Applicable to Chemical Compounds? 8 Idea 443 (1964); Note, 32 Geo.Wash. L.Rev. 429 (1963). . The Commissioner's position, here paraphrases the Board of Patent Appeals in Papeseh: Such proof of advantages is not seen to occupy a different relationship than proof of commercial success or of the “filling of a long-felt want” often considered as sufficient to establish patentability in cases where some doubt of unobviousness exists, but which have been consistently held as insufficient alone to override the holding of unpatentability in a clear case of obviousness. Papesch, supra, 315 F.2d at 386 (emphasis by court). It was rejected by the Papeseh court. It may well be true that in the field of chemistry, the discovery of useful properties will be the factor primarily responsible for commercial success or a solution to a long felt need, but that alone does not make it a secondary factor. . As was stated at a recent seminar on pharmaceutical invention, [t]ake away the concept of molecular modification and very few of our most outstanding drugs would be available today. Thus, the difference between morphine and codeine is a methyl group; between 11 desoxycorticosterone, which does nothing for humans, and cortisone, which does everything, is one oxygen atom. Seminar, Pharmaceutical Invention, 47 J. Pat.Oi'V.Soc’y 648, 682 (1965). . We are not unmindful that we are dealing in the area commonly referred to" }, { "docid": "2605122", "title": "", "text": "the date of the applicant’s invention. 35 USC 102(e); Alexander Milburn Co. v. Davis-Bournonville, 270 U.S. 390 (1926). Appellants’ filing date, no earlier date having been proved, is their date of invention. A patent is “to another” when the “inventive entities” are different, In re Land, 54 CCPA 806, 368 F. 2d 866, 151 USPQ 621 (1966), and may then be used as prior art to make the determination required by 35 USC 103. Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ 429 (1965); In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964); see In re Hilmer, 53 CCPA 1287, 359 F. 2d 859, 149 USPQ 480 (1966). Appellants would have us carve out an exception to 35 USC 102(e) in the guise of interpreting “to another.” They recognize that in In re Land, supra, we decided that Land, as sole inventor, and Rogers, as sole inventor, were each “another” to Land and Rogers as joint inventors, despite the common ownership and copendency of the reference patents and application on appeal. They ask us to overrule that case because it fails to take into account modern research techniques in which groups rather than individuals make inventions. Appellants argue that the disclosure of these inventions can only be delayed by a system which makes available the patents issued to one part of a group as prior art against the applications of another part. Appellants’ argument is not without some basis. However, it predicates an elasticity of the statute which we do not find. We are not dealing here with the judicially developed aspects of the law of double patenting, as appellants would have us assume, but with the legislatively declared content of the “prior art.” We decline to overrule In re Land, supra, and hold that the Miller et al patent was properly cited as prior art against appellants’ application. Appellants argue, however, that even if the Miller et al. specification is prior art, their invention is nonetheless unobvious. They rely ■on their claim limitations on the five process parameters to impart that unobviousness." }, { "docid": "15080607", "title": "", "text": "that phrase particularly meaningless since the effect of drugs or reactivity of chemical compounds can be nothing else than “Inherent.” But Inherency is not obviousness. See In re Adams, 53 CCPA 996, 356 F. 2d 998, 148 USPQ 742, 746. Dorland’s Illustrated Medical Dictionary, (23rd Ed., 1957) p. SO, defines ACTH as: ACTH, Adrenocorticotrophie hormone, elaborated by the anterior lobe of the pituitary gland, which influences the action of the adrenal cortex and causes the release of cortisone therefrom. The U.S. Dispensatory reference describes one form of “by-B-Den,” A5MP as available “in 10-ml. vials containing a sustained action vehicle (gelatin-base) with 20 mg. per ml. of adenoslne-5-monophosphate (as the sodium salt).” Appellants have included In their brief a statement that the 1963 edition of Physician’s Desk Reference shows more than 225 anti-inflammatory products, and for the treatment of bursitis approximately 140 preparations are listed, and 170 therapeutic agents are listed under the treatment of arthritis. That statement apparently is taken from a sworn letter of record by Mr. Gary L. Hein, President of Lincoln Laboratories, Inc., the assignee of the application here on appeal. Both appellants’ application and briefs, and the art of record contain various meanings for the term “synergism.” Solimán defines “synergism” to mean the algebraic summation of desirable efleets. Goodman terms this “summation.” The opposite, algebraic summation of undesirable effects is termed “antagonism” by Solimán. Where the combined action is unexpectedly greater than the algebraic sum, it is termed “potentiation” by both Goodman and Solimán, or “supplemental synergism” (Solimán alone). The usual meaning appears to be that of Goodman, algebraic summation being termed summation or mere addition, and where the combined action is greater than the sum of the actions of the ingredients, the term “synergism” applies, In re Huellmantel, 51 CCPA 845, 324 F. 2d 998, 139 USPQ 496 ; In re Luvisi, 52 CCPA 1063, 342 F. 102, 144 USPQ 646. What section 103 requires is “unexpected synergism,” In re Huellmantel, supra, 51 CCPA at 850, the same as “potentiation” or “supplemental synergism” in the art of record here. Thus we read appellants’ second position" }, { "docid": "22455927", "title": "", "text": "compositions containing said later available analogs would also be more active and have greater acceptability. Appellant argues that the Patent Office position is based on oversimplification of the problem of finding new anti-inflammatory agents with minimal side effects; that the mere existence of salicylate-cortisone tablets does not suggest substituting for cortisone the later-discovered more potent cortisone derivatives, prednisone and prednisolone; and that synergism attained by the new composition is unexpected. We affirm the rejection, however, since we believe the subject matter of the invention considered as a whole would have been obvious to one skilled in the art at the time the invention was made. But we do so on a rationale somewhat different from that of the Patent Office. Both the board and the solicitor consider the fact of superior pharmaceutical properties immaterial to determining obviousness. The board states, “The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art.” The solicitor states, “Whether the art recognized that the claimed combination ‘might demonstrate concert of action of its elements in the significant area of lessened adrenal atrophy’ is immaterial, since the sole issue in this appeal is whether it would have been obvious to substitute prednisone or pred-nisolone for cortisone in the combination of Salcort or Holt, and not whether it would be obvious that such substitution would produce lessened adrenal atrophy.” We do not entirely agree with this framing of the issue. This court has frequently stated that properties of chemical compounds must be considered in determining obviousness under 35 U.S.C. 103. In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270; In re Petering and Fall, 49 CCPA 993, 301 F. 2d 676, 113 USPQ 275; In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 42. We think this also applies to such compositions as we have here, i.e., admixtures of two or more compounds. Therefore, the issue of obviousness in this case can be resolved" }, { "docid": "22934603", "title": "", "text": "as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, nor could they have done so as Blout and Rogers was not decided until more than four months after the board decision. The solicitor’s brief objects to our considering it on the usual ground that we do not generally consider points not raised below, citing In re Herthel, 36 CCPA 1095, 174 F. 2d 935, 82 USPQ 55, In re Panagrossi et al., 47 CCPA 904, 277 F. 2d 181, 125 USPQ 410, and In re Soli, 50 CCPA 1288, 317 F. 2d 941, 137 USPQ 797. We find nothing in those cases or in the two other cases cited in Herthel which precludes us from dealing with this point of law. In none of those cases was it a point of law that we declined to consider but rather such things as the interpretation of a word (Herthel), the factual significance of a claim limitation, a question of operability, the construction of a claim (Panagrossi), and the propriety of actions of the examiner to which response could have been made in the Patent Office (Soli). Generally speaking, we decline to consider questions which could and should have been raised in- the Patent Office so that we have the benefit of the views of its trained personnel on matters within their special competence .and so that the Patent Office has the opportunity to furnish its position as expert on technical questions, the interpretation.of references, applications, and the like. We will, nevertheless consider a question of law, such as the availability of a reference, which is necessary to the determination of patentability. In re Schoenwaldt, 52 CCPA 1258, 343 F. 2d 1000, 145 USPQ 289, 290. Indeed, we believe we are in a position, to interpret our own opinion in Blout cmd Rogers" } ]
806778	King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; REDACTED Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an	[ { "docid": "22093035", "title": "", "text": "This second judgment was affirmed on appeal. In re S. R. A., Inc., 219 Minn. 493, 18 N. W. 2d 442. Certiorari was sought under § 237 (b) of the Judicial Code.- It was granted because of the importance and uncertainty of the question of the right of a State to tax realty sold by the United States in possession of a buyer from the Government under a contract of sale with uncompleted conditions for execution and delivery of the muniments of title. 326 U. S. 703. The supremacy of the Federal Government in our Union forbids the acknowledgment of the power of any State to tax property of the United States against its will. Under an implied constitutional immunity, its property and operations must be exempt from state control in tax, as in other matters. M’Culloch v. Maryland, 4 Wheat. 316, 425, et seq.; Van Brocklin v. Tennessee, 117 U. S. 151, 177; United States v. Allegheny County, 322 U. S. 174, 176-77. This postulate, as a matter of federal law, forces final decision of the validity of claimed exemptions under this immunity upon this Court. United States v. Allegheny County, supra, 183, and cases cited. The impact of state taxation on federal operations may be so close and threatening as to compel judicial intervention to declare the state tax invalid, as in the M’Culloch case, or so remote and incidental as to justify a federal court in refusing to relieve a taxpayer from a state tax. Alabama v. King & Boozer, 314 U. S. 1. The Ijne of taxability is somewhat irregular and has varied through the years.* * The right of a State to tax realty directly depends primarily upon its territorial jurisdiction over the area. The realty of petitioner had been conveyed to and used by the United States for the essential governmental activities which authorized the exercise of its exclusive legislative jurisdiction.' Exclusive legislative power is in essence complete sovereignty. That is, not only is the federal property immune from taxation because of the supremacy of the Federal Government but state laws, not adopted directly" } ]	[ { "docid": "22554184", "title": "", "text": "112 N. Y. 310; 19 N. E. 845; Emperor of Brazil v. Robinson, 5 Dowl. Pr. 522; Otho, King of Greece, v. Wright, 6 Dowl. Pr. 12; The Beatrice, 36 L. J. Rep. Adm. (N. S.) 10; Queen of Holland v. Drukker, (1928) Ch. 877, 884, although the local soverign does not pay costs. United States v. Verdier, 164 U. S. 213, 219. The foreign sovereign suing, as a plaintiff must give discovery. Rothschild v. Queen of Portugal, 3 Y. & C. Ex. 594, 596; United States v. Wagner, L. R. 2 Ch. App. 582, 592, 595; Prioleau v. United States, L. R. 2 Eq. 659. A foreign sovereign plaintiff “should so far as the thing can be done be put in the same position as a body corporate.” Republic of Costa Rica v. Erlanger, L. R. 1 Ch. D. 171, 174; Republic of Peru v. Weguelin, L. R. 20 Eq. 140, 141; cf. King of Spain v. Hullett, 7 Bligh N. S. 359, 392. The presumption of a grant by lapse of time will be indulged against the domestic sovereign. United States v. Chaves, 159 U. S. 452, 464. The rule nullum tempus has never been extended to agencies or grantees of the local sovereign such as municipalities, county boards, school districts' and the like. Metropolitan R. Co. v. District of Columbia, 132 U. S. 1; Boone County v. Burlington & Missouri River R. Co., 139 U. S. 684, 693. It has been- held not to relieve the sovereign from giving the notice required by local law to charge endorsers of negotiable paper, United States v. Barker, 12 Wheat. 559; cf. Cooke v. United States, 91 U. S. 389, 398; Wilber National Bank v. United States, 294 U. S. 120, 124, and in tax cases has been narrowly construed against the domestic sovereign. Bowers v. New York & Albany Lighterage Co. 273 U. S. 346, 350. Compare United States v. Knight, 14 Pet. 301; Fink v. O’Neil, 106 U. S. 272. The United States accorded recognition to the Provisional Government March 16, 1917 and continued to recognize it until" }, { "docid": "4309786", "title": "", "text": "to establish a probability of the fact that in reality a grant was ever issued. It will afford a sufficient ground for the presumption to show that, by legal possibility, a grant might have been issued. And this appearing, it may be assumed in the absence of circumstances repelling such conclusion that all that might lawfully have been done to perfect the legal title was in fact done, and in the form prescribed by law.’ ” These principles were affirmed as applicable to grants of the kind we are considering in United States v. Chaves, 159 U. S. 452. Mr. Justice Shiras, speaking for the court, said: “ \"Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, whenever by possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 508. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive- bar to the title of the sovereign, agreeably to the maxim, nullum tempus oeeurrid regi; yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment-accompanied by the usual acts of ownership. 1 Green-leaf Ev. § 45. “The principle upon which this doctrine rests is one of general jurisprudence, and" }, { "docid": "23601464", "title": "", "text": "be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 503. Nothing, it is true, can be claimed.by prescription which owes its origin to, and can only be had by, matter of record; but lapse, of time accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, nullum tempus occurrit regi; yet, if the adverse claim .could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev. § 45. The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Roman law and the codes founded thereon, Best’s Principles of Evidence, § 366, and was, therefore, a feature of the Mexican law at the time of the cession. Finally, the rule of the law of nations, that private property in territory ceded by one nation to another, when held by a title vested before the act of cession, should be respected; the express provisions to that effect contained in the treaty between Mexico and the United States; the evidence of the fact of a grant, legal under the forms of Mexican law, and of a juridical possession given thereunder, and the strong presumption growing out of an exclusive and uninterrupted possession and enjoyment of more than half a century, bring us to concur in the decree of the court below. The objection that the Atlantic and JPacifio Railroad Company, as grantee from the United States, of a part of the tract in question, was a necessary party defendant,'has not been pressed" }, { "docid": "22069941", "title": "", "text": "by the law of any State,’ ” id., at 26 (quoting 322 U. S., at 183). Allegheny does not stretch as widely as the United States suggests. That case concerned whether certain property belonged to the United States and, if so, whether the incidence of a state tax was on the United States or on a Government contractor. See id., at 181-183, 186-189. Neither the United States nor any United States agency is a party to this ease, and the auxiliary matter here involved scarcely resembles the controversy in Allegheny. The dissent nowhere suggests that uniform, court-declared federal law would govern the carrier’s subrogation claim against the tortfeasor. Nor does the dissent explain why the two linked provisions — reimbursement and subrogation — should be decoupled. As the Court in Grable observed, 545 U. S., at 312, the classic example of federal-question jurisdiction predicated on the centrality of a federal issue is Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921). Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Alito join, dissenting. This case involves a dispute about the meaning of terms in a federal health insurance contract. The contract, between a federal agency and a private carrier, sets forth the details of a federal health insurance program created by federal statute and covering 8 million federal employees. In all this the Court cannot find a basis for federal jurisdiction. I believe I can. See Clearfield Trust Co. v. United States, 318 U. S. 363 (1943). I A There is little about this case that is not federal. The comprehensive federal health insurance program at issue is created by a federal statute, the Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U. S. C. §8901 et seq. (2000 ed. and Supp. III). This program provides insurance for Federal Government employees and their families. That insurance program today covers approximately 8 million federal employees, retirees, and dependents, at a total cost to the Government of about $22 billion a year. Brief for United States as Amicus Curiae 2. To implement the statute, the Office" }, { "docid": "4309787", "title": "", "text": "possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 508. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive- bar to the title of the sovereign, agreeably to the maxim, nullum tempus oeeurrid regi; yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment-accompanied by the usual acts of ownership. 1 Green-leaf Ev. § 45. “The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Homan law and the codes founded thereon, Best’s Principles of Evidence, § 366, and was, therefore, a feature of the Mexican law at the time of the cession.” The application of these principles to the case at bar does not need many directing words. It is contended by the Government that no juridical possession is shown under the grant to the southern portion of the tract; that there is no grant shown to Sedillo of the northern portion of the tract; that admitting both are shown there is no evidence that the title which Don Diego Borrego received ■ in 1731 was conveyed to Clemente Gutierrez, who was shown to have had the possession claiming title in 1785. To infer all these things, it is argued, is to build presumption on presumption, and carry constructive proof too far. The argument is not formidable. The instances mentioned are of the same kind as those in the cited cases, and the principle of the cases is not limited or satisfied by the presumption" }, { "docid": "21899590", "title": "", "text": "430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U. S. 558, 564. Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years’ possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons.” 32 Stat. 691, § 12. 1 Greenleaf, Evidence (16th Ed.), § 45a. Fletcher v. Fuller, supra, 551; United States v. Chavez, supra, 464; United States v. Chavez, supra, 520. Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. “OPINION BOOK Attorney General’s Department Pages" }, { "docid": "21899588", "title": "", "text": "actual occupancy where the character of the property does not lend itself to such use. No other private owner claims any rights in Palmyra. From the evidence of title and possession shown in this record, we cannot say that the decrees below are incorrect. Judgment affirmed. Hawaii v. Mankichi, 190 U. S. 197. Hawaii v. Mankichi, 190 U. S. 197, 216. Declaration of Rights, 1839. Act to Organize Executive Departments and Joint Resolution, April 27, 1846, Hawaii, Statute Laws, 1845-46, vol. I, pp. 99, 277. Revised Laws of Hawaii, 1905, p. 1197 et seq. Thurston v. Bishop, 7 Haw. 421, dissent, n. at 454. The domain covered by the term seems to be not only the lands declared to be the private lands of the King by the Act of June 7, 1848, but also other unassigned lands later declared by legislative authority to be Crown Lands. Rev. Laws, Hawaii, 1905, p. 1227; Act of November 14, 1890, Laws, Hawaii, 1890, c. 75; Rev. Laws, Hawaii, 1905, p. 1229. Hawaii, Statute Laws, 1845-46, vol. I, p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved. The land in dispute in this case is not one of those specifically reserved by the King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428," }, { "docid": "22143601", "title": "", "text": "States and the rights acquired by it . . . find their roots in the same federal sources. ... In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.” 318 U. S., at 366-367; United States v. Allegheny County, 322 U. S. 174, 183 (1944); United States v. Standard Oil Co., 332 U. S. 301, 305 (1947); Board of County Comm’rs v. United States, 308 U. S. 343, 349-350 (1939). III The next step in our analysis is to determine whether the 1937 and 1939 land acquisition agreements in issue should be interpreted according to “borrowed” state law— Act 315 of 1940. The availability of this choice was explicitly recognized in Clearfield Trust itself and fully elaborated some years later in United States v. Standard Oil Co., supra. There we acknowledged that “in many situations, and apart from any supposed influence of the Erie decision, rights, interests and legal relations of the United States are determined by application of state law, where Congress has not acted specifically.” 332 U. S., at 308. We went on to observe that whether state law is to be applied is a question “of federal policy, affecting not merely the federal judicial establishment and the groundings of its action, but also the Government’s legal interests and relations, a factor not controlling in the types of cases producing and governed by the Erie ruling. And the answer to be given necessarily is dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.” Id., at 309-310. See also De Sylva v. Ballentine, 351 U. S. 570, 580 (1956); RFC v. Beaver County, 328 U. S. 204 (1946) ; Board of County Comm’rs v. United States, 308 U. S., at 351-352; Royal Indemnity Co. v. United States, 313 U. S. 289, 296 (1941); United States v. Yazell, 382 U. S. 341, 356-357 (1966); cf. United States v. Mitchell, 403 U. S. 190 (1971). The Government urges" }, { "docid": "22143600", "title": "", "text": "the governing law in an area comprising issues substantially related to an established program of government operation.” Mishkin, 105 U. Pa. L. Rev., at 800. This, then, is what has aptly been described as the “first” of the two holdings of Clearfield Trust Co. v. United States, supra — that the right of the United States to seek legal redress for duly authorized proprietary transactions “is a federal right, so that the courts of the United States may formulate a rule of decision.” Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383, 410 (1964). At least this first step of the Clearfield analysis is applicable here. We deal with the interpretation of a land acquisition agreement (a) explicitly authorized, though not precisely governed, by the Migratory Bird Conservation Act and (b) to which the United States itself is a party. Cf. Bank of America v. Parnell, 352 U. S. 29, 33 (1956). As in Clearfield and its progeny, “[t]he duties imposed upon the United States and the rights acquired by it . . . find their roots in the same federal sources. ... In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.” 318 U. S., at 366-367; United States v. Allegheny County, 322 U. S. 174, 183 (1944); United States v. Standard Oil Co., 332 U. S. 301, 305 (1947); Board of County Comm’rs v. United States, 308 U. S. 343, 349-350 (1939). III The next step in our analysis is to determine whether the 1937 and 1939 land acquisition agreements in issue should be interpreted according to “borrowed” state law— Act 315 of 1940. The availability of this choice was explicitly recognized in Clearfield Trust itself and fully elaborated some years later in United States v. Standard Oil Co., supra. There we acknowledged that “in many situations, and apart from any supposed influence of the Erie decision, rights, interests and legal relations of the United States are determined by application of" }, { "docid": "22630102", "title": "", "text": "is indeed true that the Court construes waivers of sovereign immunity strictly, that principle of statutory construction is no more than an aid in the task of determining congressional intent. In a close case, it may help the Court choose between two equally plausible constructions. It cannot, however, grant the Court authority to narrow judicially the waiver that Congress intended. United States v. Kubrick, 444 U. S. 111, 118 (1979); Indian Towing Co. v. United States, 350 U. S. 61, 69 (1955). The mere observation that a statute waives sovereign immunity, then, cannot resolve questions of construction. The Court still must consider all indicia of congressional intent. Considering all the evidence, I cannot agree with the Court’s conclusion that Congress intended to subject the States to a statute of limitations that would prevent their assertion of title to lands held in trust for the public. The common law has long accepted the principle “nullum tempus occurrit regi” — neither laches nor statutes of limitations will bar the sovereign. See, e. g., 10 W. Holdsworth, A History of English Law 355 (1938); D. Gibbons, A Treatise on the Law of Limitation and Prescription 62 (1835). The courts of this country accepted the principle from English law. See, e. g., Weber v. Board of Harbor Comm’rs, 18 Wall. 57 (1873); United States v. Kirkpatrick, 9 Wheat. 720, 735 (1824); Iverson & Robinson v. Dubose, 27 Ala. 418, 422 (1855); Stoughton v. Baker, 4 Mass. 522, 528 (1803); see generally J. May, Angell on Limitations 29-30 (5th ed. 1869). As this Court observed: “So complete has been its acceptance that the implied immunity of the domestic ‘sovereign,’ state or national, has been universally deemed to be an exception to local statutes of limitations where the government, state or national, is not expressly included.” Guaranty Trust Co. v. United States, 304 U. S. 126, 133 (1938). In this country, courts adopted the rule, not on the theory that an “impeccable” sovereign could not be guilty of laches, but because of the public policies served by the doctrine. The public interest in preserving public rights" }, { "docid": "21899574", "title": "", "text": "construe that law for themselves. The federal courts cannot be foreclosed by determinations of the Hawaiian law by the Hawaiian courts. They will lean heavily upon the Hawaiian decisions as to the Hawaiian law but they are not bound to follow those decisions where a claimed title to public lands of the United States is involved. The roots of respondents’ claim spring from Hawaiian law. As their claim to Palmyra continued after the United States acquired in 1898 whatever rights Hawaii then had, the validity of respondents’ claim must be judged, also, in the light of the public land law of the United States. The presumption of a lost grant to land has received recognition as an appropriate means to quiet long possession. It recognizes that lapse of time may cure the neglect or failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed. The doctrine first appeared in the field of incorporeal hereditaments but has been extended to realty. The rule applies to claims to land held adversely to the sovereign. The case from this Court most often cited is United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: “Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.” See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to" }, { "docid": "6859212", "title": "", "text": "opinion that the title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate.” Clark v. Graham, 6 Wheat. 577, 5 L. Ed. 334; Kerr v. Moon, 9 Wheat. 565, 570, 6 L. Ed. 161; McCormick v. Sullivant, 10 Wheat. 192, 202, 6 L. Ed. 300; Taylor v. Benham, 5 How. 233, 273, 12 L. Ed. 130; McGoon v. Scales, 9 Wall. 23,19 L. Ed. 545; Burbank v. Conrad, 96 U. S. 291, 298, 24 L. Ed. 731; Brine v. Insurance Co., 96 U. S. 627, 639, 24 L. Ed. 858; Schley v. Pullman Car Co., 7 S. Ct. 730, 120 U. S. 575, 580, 30 L. Ed. 789; Langdon v. Sherwood, 8 S. Ct. 429, 124 U. S. 74, 81, 31 L. Ed. 344; DeVaughn v. Hutchinson, 17 S. Ct. 461, 165 U. S. 566, 570, 41 L. Ed. 827; Clarke v. Clarke, 20 S. Ct. 873, 178 U. S. 186, 191, 44 L. Ed. 1028; Olmsted v. Olmsted, 30 S. Ct. 292, 216 U. S. 386, 393, 54 L. Ed. 530, 25 L. R. A. (N. S.) 1292; Munday v. Wisconsin Trust Co., 40 S. Ct. 365, 252 U. S. 499, 503, 64 L. Ed. 684. This is not only the law of the federal courts, but of the state courts as well, and it is our understanding that it is the law of all countries. This court had occasion to apply the rule in Hotel Woodward v. Ford, 258 F. 322, 169 C. C. A. 338. In Wharton on Conflict of Laws (3d Ed.) vol. 2, c. 7, the writer states that, under the Homan law, the English common law, and that of the United States, real estate in all jurisdictions and by an uninterrupted current of authority is held subject to the lex rei sit®. A “lease,” strictly speaking, as Blackstone defined it, “is a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for. life, for years, or at will, but always for a less" }, { "docid": "21899575", "title": "", "text": "to land held adversely to the sovereign. The case from this Court most often cited is United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: “Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.” See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to one tract, case No. 38 at 516, the existence of the grant to Joaquin Sedillo was not shown except by a statement of January 11, 1734, that the tract conveyed “was acquired by his [affiant’s] father in part by grant in the name of His Majesty [The King of Spain] . . .” P. 514. In referring to the recognition of title in the private owners, this Court said, at 520: “Succeeding to the power and obligations of those Governments, must the United States do so? This is insisted by their counsel, and yet they have felt and expressed the equities which arise from the circumstances of the case. Whence arise those equities? That which establishes them may establish title. Upon a long and uninterrupted possession, the law bases presumptions as sufficient for legal judgment, in the absence of rebutting circumstances, as formal instruments, or records, or articulate testimony. Not that formal instruments or records are unnecessary, but it will be presumed that they once existed and have been lost. The inquiry then recurs, do" }, { "docid": "23601463", "title": "", "text": "indeed, contend that the Court of Private Land Claims and this court have no power to presume a grant upon proof of long-continued possession only; that their power is confined to confirming grants lawfully and regularly derived from Spain and Mexico. It is scarcely necessary for us to consider such a question, because, as we have seen, there is ample evidence from which to find that these settlers were put in juridical possession' under a grant from the governor of New Mexico, who, under the laws then in force, had authority to make the grant. However, we do not wish to be understood as undervaluing the fact of a possession so long and uninterrupted as disclosed in this case. Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 503. Nothing, it is true, can be claimed.by prescription which owes its origin to, and can only be had by, matter of record; but lapse, of time accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, nullum tempus occurrit regi; yet, if the adverse claim .could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev. § 45. The principle upon" }, { "docid": "22623714", "title": "", "text": "219. It further held that while such an adjudication is not res judicata against the United States because it cannot be made a party to the suit, the courts have jurisdiction to resolve the controversy between those who claim possession. And it concluded that an agent or officer of the United States who acts beyond his authority is answerable for his actions. And see Philadelphia Co. v. Stimson, 223 U. S. 605, 619-620; Sloan Shipyards Corp. v. United States Fleet Corp., 258 U. S. 549, 567. Where the right to possession or enjoyment of property under general law is in issue, and the defendants claim as officers or agents' of the sovereign, the rule of United States v. Lee, supra, has been repeatedly approved. Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 452; Tindal v. Wesley, 167 U. S. 204; Smith v. Reeves, 178 U. S. 436, 439; Scranton v. Wheeler, 179 U. S. 141, 152-153; Philadelphia Co. v. Stimson, supra, pp. 619-620; Goltra v. Weeks, 271 U. S. 536, 545; Ickes v. Fox, 300 U. S. 82, 96; Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 50-51. That rule is applicable here although we assume that record title to the shares is in the Commission. In United States v. Lee, supra, record title of the land was in the United States and its officers were in possession. The force of the decree in that case was to grant possession to the private claimant. Though the judgment was not res judicata against the United States, p. 222, it settled as between the parties the controversy over possession. Precisely the same will be true here, if we assume the allegations of the complaint are proved. For if we view the case in its posture before the District Court, petitioners, being members of the Commission, were in position to restore possession of the shares which they unlawfully held. We do not trace the principle of United States v. Lee, supra, in its various ramifications. Cases on which petitioners rely are distinguishable. This is not an indirect" }, { "docid": "17799214", "title": "", "text": "not guilty of inexcusable delay in making its well-pumping claim, and that Colorado had not been prejudiced by Kansas’ failure to press its claim earlier. Id., at 170. Colorado has excepted to this determination. Colorado argues that the equitable doctrine of laches should bar Kansas’ claim for relief. See Colorado’s Exceptions to Special Master’s Report (Colorado’s Exceptions) 24-64. We overrule Colorado’s exception. The defense of laches “requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Costello v. United States, 365 U. S. 265, 282 (1961); see also Black’s Law Dictionary 875 (6th ed. 1990) (“‘Doctrine of laches,’ is based upon maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as bar in court of equity”). This Court has yet to decide whether the doctrine of laches applies in a case involving the enforcement of an interstate compact. Cf. Illinois v. Kentucky, 500 U. S. 380, 388 (1991) (in the context of an interstate boundary dispute, “the laches defense is generally inapplicable against a State”); Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 294 (1983) (O’Connor, J., dissenting) (“The common law has long accepted the principle ‘nullum tempus occurrit regi’ — neither laches nor statutes of limitations will bar the sovereign”); Colorado v. Kansas, supra, at 394 (In the context of a suit seeking an equitable apportionment of river flows, facts demonstrating a delay in filing a complaint “might well preclude the award of the relief [requested]. But, in any event, they gravely add to the burden [the plaintiff] would otherwise bear”)- We need not, however, foreclose the applicability of laches in such cases, because we conclude that Colorado has failed to prove an element necessary to the recognition of that defense. See Costello, supra, at 282. Colorado argues that Kansas knew or should" }, { "docid": "21899589", "title": "", "text": "p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved. The land in dispute in this case is not one of those specifically reserved by the King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U. S. 558, 564. Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of" }, { "docid": "21899591", "title": "", "text": "uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years’ possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons.” 32 Stat. 691, § 12. 1 Greenleaf, Evidence (16th Ed.), § 45a. Fletcher v. Fuller, supra, 551; United States v. Chavez, supra, 464; United States v. Chavez, supra, 520. Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. “OPINION BOOK Attorney General’s Department Pages 598-600 Opinion No. 18 Honolulu, T. H., Feb. 11,1905 To His Excellency Geo. R. Carter, Governor of the Territory of Hawaii, Honolulu, T. H. Sra: In answer to your request of December 15th, 1904, for an opinion as to the jurisdiction of the Territory of Hawaii over the various small guano islands to the north-west of Kauai, I would reply as follows: After a careful investigation of the records in the office of the Secretary of the Territory, formerly the Foreign Office, and from other sources of information, I find that the authority of the Territory of Hawaii over these islands is as follows: It appears in the report of J. A. King, Minister of the Interior, dated the 2nd day of June, 1894, to Sanford B. Dole, President of the Republic of Hawaii, that formal possession was taken of Necker Island by the said J. A. King, representing the Republic of Hawaii, on May 22, 1894; it also appears by that report that the government of the Hawaiian Islands had sent Captain John Paty" }, { "docid": "22415866", "title": "", "text": "Stock Corp. v. Minnesota, 301 U. S. 234, 239-240; Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 506, 514-516. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139; Pennoyer v. Neff, 95 U. S. 714; Arndt v. Griggs, 134 U. S. 316; Fall v. Eastin, 215 U. S. 1; Olmsted v. Olmsted, 216 U. S. 386; United States v. Guaranty Trust Co., 293 U. S. 340, 345-346; Paddell v. City of New York, 211 U. S. 446; St. Louis v. Ferry Co., 11 Wall. 423, 430; Frick v. Pennsylvania, 268 U. S. 473; see Story, Conflict of Laws (8th ed.), §§ 550, 551; Dicey, Conflict of Laws (5th ed.), pp. 418, et seq., 583 et seq., 606 et seq.; 1 Beale, Conflict of Laws, § 48.1 et seq.; American Law Institute, Restatement of Conflict of Laws,’ §§ 48, 49 ; 2 Cooley, Taxation (4th ed.), §§ 447, 451. But there are many legal interests other than conventional ownership which may be created with respect to land of such a character that they may be constitutionally subjected to taxation in states other than that where the land is situated. No one has doubted the constitutional power of a state to tax its domiciled residents on their shares of stock in a foreign corporation Whose only prqperty is real estate locáted elsewhere, Darnell v. Indiana, 226 U. S. 390; Hawley v. Malden, 232 U. S. 1; cf. Kidd v. Alabama, 188 U. S. 730; Carry v. Baltimore, 196 U. S. 466; Cream of Wheat Co. v. County of Grand Forks, 253 U. S. 325, 329; Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 506, 514-516, or to tax a valuable contract for the purchase of land or chattels located in another state, see Citizens National Bank v. Durr, 257 U. S. 99, 108; cf. Gish v. Shaver, 140 Ky. 647, 650; 131 S. W. 515; Golden v. Munsinger, 91 Kan. 820, 823; 139 P. 379; ' Marquette v. Michigan Iron & Land Co., 132 Mich. 130; 92 N. W. 934, or to tax a mortgage of real estate located without the" }, { "docid": "22415865", "title": "", "text": "cannot define the constitutional guaranty in terms of a fiction so unrelated to reality without creating as many tax injustices as we would avoid and without exercising a power to remake constitutional provisions which the Constitution has not given to the courts. See Bristol v. Washington County, supra, 145; Kidd v. Alabama, 188 U. S. 730, 732, quoted with approval in Hawley v. Malden, supra, 13; Bullen v. Wisconsin, supra, 630; Fidelity & Colombia Trust Co. v. Louisville, supra, 58; Cream of Wheat Co. v. Grand Forks, supra, 330. So far as the decree of the Supreme Court of Tennessee denies the power of Alabama to tax, it is Reversed. See, in the case of income taxation, Lawrence v. State Tax Comm’n, 286 U. S. 276; New York ex rel. Cohn v. Graves, 300 U. S. 308; Guaranty Trust Co. v. Virginia, 305 U. S. 19; cf. Senior v. Braden, 295 U. S. 422, 431-432. And in the case of taxation of shares of stock, see Corry v. Baltimore, 196 U. S. 466; First Bank Stock Corp. v. Minnesota, 301 U. S. 234, 239-240; Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 506, 514-516. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139; Pennoyer v. Neff, 95 U. S. 714; Arndt v. Griggs, 134 U. S. 316; Fall v. Eastin, 215 U. S. 1; Olmsted v. Olmsted, 216 U. S. 386; United States v. Guaranty Trust Co., 293 U. S. 340, 345-346; Paddell v. City of New York, 211 U. S. 446; St. Louis v. Ferry Co., 11 Wall. 423, 430; Frick v. Pennsylvania, 268 U. S. 473; see Story, Conflict of Laws (8th ed.), §§ 550, 551; Dicey, Conflict of Laws (5th ed.), pp. 418, et seq., 583 et seq., 606 et seq.; 1 Beale, Conflict of Laws, § 48.1 et seq.; American Law Institute, Restatement of Conflict of Laws,’ §§ 48, 49 ; 2 Cooley, Taxation (4th ed.), §§ 447, 451. But there are many legal interests other than conventional ownership which may be created with respect to land of such a character that they may be" } ]
745199	"amend. . The court has recounted the standards applicable to a motion for summary judgment in more (...TRUNCATED)	[{"docid":"10234535","title":"","text":"1238 (8th Cir.1990). On the other hand, the Federal Rules of(...TRUNCATED)	[{"docid":"3839730","title":"","text":"to lift more than ten pounds, to stand for extended periods o(...TRUNCATED)
14115	"\"ERISA preemption, for as we explain, the City does not act as a market participant in offering ta(...TRUNCATED)	[{"docid":"5627904","title":"","text":"Harbor, the state’s actions in Gould could only be understo(...TRUNCATED)	[{"docid":"20734848","title":"","text":"interests of the BCTC and its affiliates, which were politic(...TRUNCATED)
840906	"that counsel misjudged the admissibility of the confession. The second claim upon which petitioner (...TRUNCATED)	[{"docid":"12238541","title":"","text":"resulted in the inconsistencies. We are not insensitive to t(...TRUNCATED)	[{"docid":"18001188","title":"","text":"be considered in a federal habeas corpus proceeding by a sta(...TRUNCATED)
134081	"not be imposed on a municipality under § 1983. Id. at 691-92, 98 S.Ct. at 2036. The Supreme Court (...TRUNCATED)	[{"docid":"1274457","title":"","text":"were “reasonable grounds to believe” that the offense was(...TRUNCATED)	[{"docid":"23119077","title":"","text":"The initial barrier to appellant’s relief from Charter is (...TRUNCATED)
647086	"transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court m(...TRUNCATED)	[{"docid":"22438326","title":"","text":"21,1975. The last day for filing claims was, therefore, Febr(...TRUNCATED)	[{"docid":"18577319","title":"","text":"to protect the bank’s interest in the estate of the debtor(...TRUNCATED)
369085	"this fact. Once the plaintiff conclusively proves an inability to perform past jobs due to an impai(...TRUNCATED)	[{"docid":"5011261","title":"","text":"the medical-vocational regulations are reasonably related to (...TRUNCATED)	[{"docid":"22864826","title":"","text":"he must direct interrogatories to each physician to obtain a(...TRUNCATED)

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