An employer sought to compel its employee to arbitrate her Title VII claims and to stay the cross-claims she brought as an intervenor in the Equal Employment Opportunity Commission's (EEOC) enforcement action filed against the employer. The district court ultimately denied the employers motion, and it allowed the employee to intervene in the EEOC action despite her agreement to arbitrate. The employer appealed and the 8th Circuit Court of Appeals reversed.
EEOC, et al. v. Woodmen of the World
Elaw Headnotes (Not Prepared by Court)
Arbitration:
1. [Appeal and Error:] We review de novo the district court's denial of Woodmen's motion to compel arbitration. Suburban Leisure Ctr., Inc. v. AMF Bowling Prods., Inc., 468 F.3d 523, 525 (8th Cir. 2006).
2. [Statutes: Federal Arbitration Act:] Under the Federal Arbitration Act (FAA), "[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. ••• "[T]he FAA's purpose [was] 'to reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same footing as other contracts.'" Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 89 (2000) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991) (ellipses in original)). The federal policy manifested by the FAA "is at bottom a policy guaranteeing the enforcement of private contractual arrangements." Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 625 (1985) (internal marks omitted). ••• Arbitration agreements encompassing federal statutory claims are enforceable as long as the potential litigant can effectively vindicate her statutory rights through arbitration. Green Tree, 531 U.S. at 90; see also Lyster v. Ryan's Family Steak Houses, Inc., 239 F.3d 943, 946 (8th Cir. 2001) ("Title VII claims are subject to individual consensual agreements to arbitrate."). ••• In the Civil Rights Act of 1991, Congress encouraged the use of alternative dispute resolution, including arbitration, "to resolve disputes arising under the Acts or provisions of Federal law amended by this title," including Title VII. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1071, 1081 (Congressional Note on the interpretation of Title VII contained within the 1991 amendments to 42 U.S.C. § 2000e). In addressing a motion to compel arbitration then, courts generally "ask only (1) whether there is a valid arbitration agreement and (2) whether the particular dispute falls within the terms of that agreement." Faber v. Menard, Inc., 367 F.3d 1048, 1052 (8th Cir. 2004).
3. [Contracts:] The validity of the arbitration agreement is determined by state contract law. Id. Here, the 8th Circuit construed the district court's reliance on Faber as raising a concern about the conscionability of the arbitration agreement based on the fee structure. Id. at 1051. ••• The Faber court looked to Iowa contract law to determine whether the fee-splitting provision in the arbitration agreement there at issue was unconscionable, thus invalidating the agreement under state contract law. Id. at 1053.
a. (Nebraska Law:) Under Nebraska law, "the term 'unconscionable' means manifestly unfair or inequitable." Myers v. Neb. Inv. Council, 724 N.W.2d 776, 799 (Neb. 2006). Further, "[a] contract is not substantively unconscionable unless the terms are grossly unfair under the circumstances that existed when the parties entered into the contract." Id. Nebraska courts also consider whether a contract is "procedurally unconscionable," an essential element of which includes "the disparity in respective bargaining positions of parties to a contract." Id.Kosmicki v. Nebraska, 652 N.W.2d 883, 893 (Neb. 2002); see also Faber, 367 F.3d at 1053 (holding that "inequality in bargaining power . . . is not enough by itself to overcome the federal policy favoring arbitration," citing Gilmer, 500 U.S. at 33).
Date Filed and Case No.: March 9, 2007 No. 06-1522
Parties: Equal Employment Opportunity Commission; Louella Rollins, Appellees. Woodmen of the World Life Insurance Society, and/or Omaha Woodmen Life Insurance Society, Appellant.
Court Appealed From: United States District Court for the District of Nebraska.
Judges on Panel: Riley, Hansen, and Smith, Circuit Judges.
Authored By: Hansen, Circuit Judge.
Summary: Louella Rollins worked for Woodmen from 1989 to 2001 pursuant to a written employment agreement that included an arbitration agreement. Rollins filed a charge of sex discrimination with the EEOC on 09/10/99 ( hostile work environment created by her male subordinates/ and she was demoted after she complained to Woodmen's Equal Employment Opportunity office.) The EEOC commenced a Title VII enforcement action against Woodmen and the district court granted Rollins' motion to intervene in that action. Concurrent with the motion to intervene, Rollins filed a cross-claim against Woodmen nearly identical to the EEOC's enforcement action. The district court initially granted Woodmen's motion to compel Rollins to arbitrate the individual claims but after Rollins filed a motion seeking relief from the order (because the cost of the arbitration made it inequitable to force her to arbitrate) it denied arbitration. After Rollins filed for a Bankruptcy, and the automatic stay was lifted, the district court denied a motion by Woodmen to amend its prior order. Woodmen appealed to the the 8th Circuit Court of Appeals which had jurisdiction over the appeal of the denial of a motion to compel arbitration pursuant to 9 U.S.C. § 16(a)(1)(C).
The issue before the the 8th Circuit was whether the district court properly excused Rollins from arbitrating her individual discrimination claims and allowed her to proceed in the EEOC's enforcement action as an intervenor.
1. Should Rollins current inability to afford the arbitration costs, including both the arbitration fees and her own litigation costs, relieve her of her agreement to arbitrate? Considering the circumstances that existed at the time the two arbitration agreements were entered, the 8th Circuit concluded that neither arbitration agreement was unconscionable under Nebraska law. The Court ruled that to the extent that Green Tree (see headnotes) provides a basis for avoiding an arbitration agreement beyond that allowed by general state contract law, Rollins has failed to meet that standard as well. Both the original arbitration agreement contained in Rollins' employment contract and a subsequent "Agreement to Binding Arbitration" provided that the parties would share the costs of arbitration. Rollins introduced evidence in the district court about the costs associated with the private arbitrator chosen and about her impending bankruptcy. The district court determined that the spiraling costs, coupled with Rollins' financial situation, relieved her of her obligation to continue the arbitration, particularly where she could piggyback on the EEOC's discovery and litigation and avoid incurring those expenses personally. The arbitration agreements here allocated the costs of arbitration equally between the parties and Woodmen agreed to waive the fee splitting provision and pay the arbitrator's fees in full. Further, the arbitration agreement contained in Rollins' employment agreement included a severability clause, such that the fee-splitting provision can be severed and the remainder of the arbitration agreement enforced, even absent Woodmen's offer. Rollins did not argue that splitting the costs of the arbitration is fundamentally unfair but Rollins failed to establish that the costs of arbitration will preclude her from vindicating her statutory rights.
2. Will the payment of the attorney's fees and litigation costs associated with the arbitration proceeding make the arbitration agreement unconscionable? The 8th Circuit rejected this claim by Rollins. The Court noted that arbitration costs can make an arbitration agreement unconscionable because a litigant does not face fees for the decision-maker similar to arbitration costs when she proceeds in federal court. She does, however, face attorney's fees and litigation costs in court. Thus, the fact that a party will incur litigation costs and attorney's fees in an arbitral forum does not make that forum unconscionable as she would generally face those fees regardless of the forum. Here, Rollins asserted that unique circumstances–the arbitrator's requirement that each party's attorney personally guarantee payment of the arbitrator's fees–made it nearly impossible for her to obtain the services of a contingency fee-based attorney, thus greatly increasing her out-of-pocket costs. However, Woodmen's offer to pay the arbitrator's fees in full negated the underlying premise of Rollins' argument. Paying one's own attorney's fees and related litigation costs, particularly where there is no impediment to a contingency fee arrangement, cannot be said to be unconscionable.
3. Since Rollins could piggyback on the EEOC's discovery and litigation to avoid duplicative costs shouldn’t Rollins be relieved of her agreement to arbitrate? The 8th Circuit noted that while it may be more convenient and efficient to allow Rollins to proceed in the EEOC's case as an intervenor rather than requiring her to arbitrate, that consequence did not make the arbitration agreement unconscionable, and thus invalid, which the court said is the proper standard for allowing a party to avoid her contractual obligation. The Court therefore held that the arbitration agreements were valid, following the federal presumption in favor of arbitration.
4. Did Rollins rights as an intervenor in the EEOC's enforcement action, does not fall within the terms of the arbitration agreement? Rollins claimed that she has no individual claims to pursue in arbitration because the EEOC preempted her individual cause of action by bringing its enforcement action. The district court determined that requiring Rollins to arbitrate her claims would interfere with the EEOC's ability to pursue its enforcement action. The 8th Circuit rejected the district court's conclusion as the Supreme Court has specifically held that an arbitration agreement between an employer and an employee do not prevent the EEOC from seeking all remedies available to it in its enforcement action, including victim-specific relief. In this appeal, the EEOC seeks only to ensure that its enforcement action will not be stayed in the event the 8th Circuit reversed the district court's judgment relieving Rollins of her obligation to arbitrate her claims. The Court ruledthat the arbitration agreement and any related proceedings have no bearing on the EEOC's ability to pursue its enforcement action, and placed no limitations on the EEOC's continuation of its enforcement action.
5. Once the EEOC filed its enforcement action has Rollins lost any claim to pursue in arbitration? The the 8th Circuit rejected this assertion. The Court noted that the Supreme Court has found that the employee is entitled to intervene in the EEOC's suit for the very purpose of preserving his/her substantive rights. Those rights, which may be protected by intervening in the EEOC's suit, continue to exist after the EEOC has filed its suit. “Indeed,” said the Court “those rights formed the basis for Rollins' cross-claims against Woodmen.” Rollins can bring all of the cross-claims she asserted as an intervenor in the arbitration proceedings. “In fact,” said the Court “by entering into the arbitration agreements, she has bound herself to do so. Just as an employee's agreement to arbitrate her claims mandates that claims that could be brought in an original Title VII federal action be decided in an arbitral rather than a judicial forum, so too does that agreement mandate that the cross-claims that Rollins attempts to bring as an intervenor in the EEOC's enforcement action be decided in the arbitral forum.”
Conclusion: The 8th Circuit Court of Appeals reversed the district court's judgment denying Woodmen's motion to compel arbitration and remanded the case to the district court for entry of an order compelling arbitration of the cross-claims and such further proceedings as are necessary. REVERSED AND REMANDED.
Arbitration, Motion to Vacate Award, Burden of Proof
Here the the 8th Circuit Court of Appeals rules that a district court order confirming an arbitration award affirmed without comment.
Michael J. Riddle v. Wachovia Securities [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
Arbitration Award:
1. [Motion to Vacate: Appeal and Error:]Mid American Energy Co. v. IBEW Local 499, 345 F.3d 616, 619 (8th Cir. 2003) (standard of review)
2. [Burden of Proof:]Stark v. Sandberg, Phoenix & von Gontard, P.C., 381 F.3d 793, 802 (8th Cir. 2004) (burden rests with party seeking vacatur of arbitration award to establish basis for such action); Delta Mine Holding Co. v. AFC Coal Props., Inc., 280 F.3d 815, 820 (8th Cir. 2001) (grounds for challenging arbitration award are narrowly limited, reflecting voluntary contractual nature of commercial arbitration).
Date Filed and Case No.: March 30, 2007 No. 06-1177
Parties: Michael J. Riddle, Appellant. Wachovia Securities, LLC, Appellee.
Court Appealed From: United States District Court for the District of Nebraska, Richard G. Kopf, United States District Judge for the District of Nebraska
Judges on Panel: Riley, Hansen, and Melloy, Circuit Judges.
Authored By: Per Curiam.
Summary: In this case, Michael J. Riddle appealed the district court’s denial of his motion to vacate an arbitration award in favor of Wachovia Securities, LLC (Wachovia).
Should the district court should have vacated the award, because the arbitration panel was guilty of misconduct in failing to postpone his hearing? Having carefully reviewed the record before it and the parties’ briefs on appeal, the 8th Circuit Court of Appeals agreed with the reasoned opinion of the district court that Riddle had failed to carry his burden to support vacatur of the arbitration award.
Conclusion: Accordingly, the Court affirmed the judgment of the district court. See 8th Cir. R. 47B.
Artisans Lien, Possession as Notice, Possession Broken by Debtor, Priorities
The Bankruptcy Appellate Panel of the 8th Circuit here, rules that in this action plaintiff, which held an artisan's lien on debtors' farm equipment by virtue of its repairs to the equipment, did not lose its lien when debtor took the equipment without authority. As a result, the artisan lien did not lose its priority over the defendant lender's blanket lien. Chief Judge Kressel, dissents, noting that the majority has departed from well established principles of interpretation and, “as a result, has essentially engaged in the legislative process.”
Bellamy's, Inc. v. Genoa National Bank
Elaw Headnotes (Not Prepared by Court)
Appeal and Error:
1. [Conclusions of Law:] We review the bankruptcy court’s conclusions of law de novo. Dapec, Inc. v. Small Bus. Admin., U.S. (In re MBA Poultry, L.L.C.), 291 F.3d 528, 533 (8th Cir. 2002).
Parties: Bellamy’s Inc., Creditor - Appellant. Genoa National Bank, Creditor - Appellee
Court Appealed From: United States Bankruptcy Court for the District of Nebraska
Judges on Panel: Kressel, Chief Judge, Schermer, and Venters, Bankruptcy Judges
Authored By: Schermer, Bankruptcy Judge
Summary: This case involves a priority dispute between two lienholders: the Genoa National Bank (“Lender”) who asserts a first priority blanket lien on all of the personal property of Michael R. Borden (“Debtor”) and his wife, and Bellamy’s Inc. (“Artisan”) who asserts an artisan’s lien on certain equipment by virtue of repairs to the equipment. After filing bankruptcy, the Debtor took the equipment from the Artisan without authority, used it in his farming operations, and later returned the equipment to the Artisan’s possession. In April 2006, the Lender filed a motion to determine the priority of the respective liens asserted by the Lender and the Artisan in the Equipment. The bankruptcy court determined that no controlling law existed in Nebraska governing the situation of competing liens where an artisan loses possession of the personal property through action of the property owner. The bankruptcy court looked to other jurisdictions for guidance and found that other courts faced with the issue had reached conflicting results. The bankruptcy court decided that the Lender’s lien had priority over the lien asserted by the Artisan. In reaching its decision, the bankruptcy court concluded that continuous possession is required to maintain an artisan’s lien. Alternatively, the bankruptcy court held that even if continuous possession is not required, the automatic stay prevented the Artisan from regaining possession of the Equipment post-petition. Therefore the Artisan could not have had a possessory artisan’s lien. The Artisan filed a motion to reconsider which was denied by the bankruptcy court. The Artisan appealed to the Bankruptcy Appellate Panel of the 8th Circuit (BAP).
Does the Artisan have a lien which takes priority over the Lender’s lien? In order to answer this question, the BAP had to determine if the Artisan lost its lien when the Debtor removed the equipment from the Artisan’s possession and what impact, if any, the Debtor’s post-petition return of the equipment to the Artisan had on its lien. The BAP said Nebraska law provides a lien to any person who repairs a vehicle, machinery, or a farm implement while in such person’s possession for the reasonable or agreed charges for the work done or materials furnished on or to such vehicle, machinery, or farm implement and authorizes the artisan to retain possession of the property until the charges are paid. (Neb. Rev. Stat. § 52-201, artisan’s lien.) An artisan’s lien falls within the definition of possessory lien under Nebraska law. A possessory lien on goods, such as an artisan’s lien, has priority over a security interest in the goods unless the possessory lien is created by a statute that expressly provides otherwise. Reviewing Nebraska Law, the BAP interpreted it to provide that “the artisan’s lien statute does not provide otherwise; accordingly, an artisan’s lien has priority over a previously perfected security interest in the same goods.” The BAP ruled that while an artisan’s lien is a possessory lien, they ruled that the Artisan here did not lose its artisan’s lien in the Equipment when the Debtor took the Equipment without the Artisan’s knowledge or consent. “Furthermore,” the BAP said “even if the Artisan’s failure to take action to regain possession of the Equipment could be deemed consent to the Debtor’s prior wrongful taking of the Equipment, such after-the-fact consent could not have been more than a conditional consent to the Debtor’s temporary use of the Equipment with an agreement to return it to the Artisan.” They ruled that a conditional consent to a prior wrongful taking likewise does not defeat the Artisan’s lien. The BAP found this result to be consistent with the policy underlying the creation and priority of security interests.
As an artisan’s lien does not require registration with any entity, in order to give notice of the lien, the artisan is permitted to retain the property until receiving payment for the services provided to the property. The BAP noted that a third party interested in the property can easily learn that the property is not in the owner’s possession and is then put on inquiry notice to determine why the owner does not have possession of the property. A third party who continues to deal with the property owner after learning the owner lacks possession of the property does so at his or her peril.
The BAP went on to write that with respect to recorded interests, the general rule is that first in time has priority. However, artisan’s liens are not recorded and invariably are created after security interests have been granted. A lender who advances funds to acquire certain property or who loans money secured by existing property does so on the basis of the property at the time of the loan. “The lender generally assumes the owner will maintain the property after the loan is made and often mandates such maintenance in the loan documentation. If the property later breaks or is in need of maintenance, the owner takes the property to an artisan for repair or maintenance. Such repair or maintenance enhances the value of the property, thus enhancing the value of the lender’s collateral” they said. “The lender thus benefits from the repair and this was the case with the Equipment. By performing the repairs, the Artisan enhanced the value of the Equipment, thus benefitting the Lender by increasing the value of its collateral. Recognizing the superiority of the Artisan’s lien over the Lender’s security interest is consistent with the policy underlying artisan lien law.”
What about situations where an artisan is permitted to retain a lien without maintaining possession of the property? The BAP noted that artisan’s liens are designed to be equitable in nature and to protect the rights of artisans. If the artisan voluntarily surrenders possession, the artisan loses its lien. However, if the artisan loses possession through no action of his or her own, the artisan should not be punished. This is especially true where in situations, as here, the Lender benefitted from the repairs to its collateral and its interests in the Equipment were in no way impaired when the Debtor took the Equipment from the Artisan nor when he later returned the Equipment to the Artisan. The BAP went on to hold that the Artisan did not lose its lien when the Debtor took the Equipment without the Artisan’s permission.
Conclusion: The Artisan had an artisan’s lien in the Equipment on the date the Debtor filed bankruptcy which had priority over the Lender’s security interest under Nebraska law. The Artisan did not lose its artisan’s lien nor its priority over the Lender’s security interest when the Debtor took the Equipment from the Artisan’s possession postpetition without authority. Accordingly, under these circumstances we REVERSE the bankruptcy court’s order determining that the Lender’s security interest in the Equipment takes priority over the Artisan’s lien therein.
Kressel, Chief Judge, DISSENTING, noted that the majority had done an admirable job of reviewing the split of authority on the issue presented here, “none of which admittedly is binding, and picking the line of cases which it feels provides the fair result for this case.” Judge Kressel conceded that the result reached was appealing but thought that in reaching it, “the majority has departed from well established principles of interpretation and, as a result, has essentially engaged in the legislative process.”
“Since I think the Nebraska statute unequivocally provides for a first priority possessory lien only until possession is lost, I would hold that the bankruptcy court correctly held that Genoa National Bank’s perfected security interest has priority over Bellamy’s lien and would affirm.”
This bankruptcy case reviewed by the Bankruptcy Appellate Panel reversed a judgment by a bankruptcy court that buyers were “buyers in the ordinary course of business” allowing them to jump over a secured creditor’s claim.
United Bank of Iowa v. Independent Inputs
Elaw Headnotes (Not Prepared by Court)
Appeal and Error:
1. [Bankruptcy Appellate Panel:]
a. (Findings of Fact an Conclusions of Law:) We review findings of fact for clear error and conclusions of law de novo. Kelly v. Jeter (In re Jeter), 257 B.R. 907, 909 (B.A.P. 8th Cir. 2001). The central issue on appeal – whether the Appellees qualify as “buyers in the ordinary course of business” under Iowa law – is a mixed question of law and fact, which is also subject to de novo review. In re Stephens, 276 B.R. 610, 613 (B.A.P. 8th Cir. 2002) (“Mixed questions of law and fact are subject to plenary review.”). See also, Loehrer v. McDonnell Douglas Corp., 98 F.3d 1056, 1061 (8th Cir. 1996).
b. (Motion to Alter or Amend Judgment (Rule 59)) A bankruptcy court has broad discretion in determining whether to deny a motion to alter or amend judgment pursuant to Rule 59, United States v. Metropolitan St. Louis Sewer District, 440 F.3d 930, 933 (8th Cir. 2006). and the determination of which arguments are properly before the court is implied in that grant of discretion. That determination cannot be reversed absent a clear abuse of discretion. Id. A bankruptcy court abuses its discretion when it bases its decision on a legal error or a clearly erroneous finding of fact. Kennedy Bldg. Associates v. CBS Corp., 2007 WL 284381 (8th Cir. 2007).
Date Filed and Case No.: March 19, 2007 No. 06-6068NE
Parties: United Bank of Iowa, Appellant. Independent Inputs, et al., Appellees
Court Appealed From: United States Bankruptcy Court for the District of Nebraska
Judges on Panel: Before Kressel, Chief Judge, Schermer and Venters, Bankruptcy Judges.
Authored By: Venters, Bankruptcy Judge.
Summary: This appeal involves a contest between a secured creditor and three would-be buyers in the ordinary course of business over the proceeds from the sale of several tons of agricultural lime. In 2004, the Debtor, Western Iowa Limestone, Inc., began marketing agricultural lime (“lime”). The plan for marketing the lime entailed enlisting six fertilizer and chemical dealers, including the Appellees, Independent Inputs, L.L.C., Paul Leinen, and Leinen, Inc. (collectively, “Dealers”), to remarket and sell the lime. The lime purchased by the Dealers was never segregated from the stockpiles of lime on the Debtor’s premises or otherwise identified as having been sold to anyone (let alone to the Dealers). ( The bankruptcy court did find, however, that there was always sufficient lime available on the Debtor’s premises to fulfill the Dealers’ contracts.)
At the time of these sales and after, the Debtor’s business operations were financed, at least in part, by United Bank of Iowa (“United Bank”), which was owed approximately $6 million. That debt was secured by all of the debtor’s assets, including inventory, accounts receivable, and proceeds. The lime was a part of the Debtor’s inventory. The Debtor filed a petition for relief under chapter 11 of the Bankruptcy Code on 12/12/05. On 01/03/06, the Debtor filed a motion to sell substantially all of its assets free and clear of liens, with the liens to attach to the proceeds. The bankruptcy court granted the Debtor’s motion but, in recognition of the Dealers’ claims of ownership of the lime, preserved the Dealers’ rights to make claims against the proceeds of the sale. The Dealers did, indeed, file a joint objection (“Objection”) to the proposed distribution of the sales proceeds, claiming a priority over United Bank to the extent of the value of the lime that they had purchased but which remained in the Debtor’s possession. The Dealers argued that their interest in the proceeds from the sale of that lime is superior to United Bank’s because they qualify as “buyers in the ordinary course of business” (“BIOC”) who purchased the lime free and clear of United Bank’s security interest under Iowa law.
On 05/24/06 the bankruptcy court entered an order (“Order #1”) overruling the Dealers’ Objection. The bankruptcy court determined that the Dealers did not qualify as BIOCs because, under its interpretation of Iowa law. The Dealers filed a motion to alter or amend the judgment or for new trial arguing in the motion that the bankruptcy court committed legal error when it concluded that a purchaser must have actual physical possession of goods to qualify as a BIOC. Following a hearing on the Dealers’ motion on 09/26/06 the bankruptcy court issued an order (“Order #2”) holding that its original legal conclusion that BIOC status required actual physical possession of the goods was, indeed, erroneous. Consequently, the bankruptcy court entered judgment in favor of the Dealers and awarded them the proceeds in question according to their respective interests. The Bank appealed the bankruptcy court’s order granting the Dealers’ motion to amend judgment to the Bankruptcy Appellate Panel of the 8th Circuit (BAP).
Should the bankruptcy court have ruled on the Dealers’ “constructive possession” argument because it was a new legal theory inappropriately raised in the Dealers’ Rule 59 motion to amend judgment? On this point, the BAP found that the bankruptcy court did not abuse its discretion in considering the Dealers’ “constructive possession” argument. A bankruptcy court has broad discretion in determining whether to deny a motion to alter or amend judgment pursuant to Rule 59 and the determination of which arguments are properly before the court is implied in that grant of discretion. That determination cannot be reversed absent a clear abuse of discretion. On this point, the BAP found that the bankruptcy court did not abuse its discretion in considering the Dealers’ “constructive possession” argument (although in the final analysis they concluded that the Dealers did not have constructive possession of the lime).
Is actual or constructive possession required for BIOC status and did the Dealers have constructive possession of the lime? Because the BAP found that the Dealers did not have constructive possession of the lime, it did not need to rule on whether actual or constructive possession is required for BIOC status under Iowa law. While the bankruptcy court was correct in its statement that Iowa courts recognize the concept of constructive possession, the BAP’s examination of the cases it cited and its inquiry into the application of constructive possession by Iowa courts indicated that the bankruptcy court erred in its determination that the identification of a fungible good – i.e., solely by the reference in a contract to an undivided share in an existing, specified fungible bulk – satisfies the requirements of constructive possession under Iowa law (for purposes of a priority contest between a purchaser and a secured creditor of the seller.) The Court found that a correct application of Iowa law, and the result flowing therefrom, is also consistent with, if not mandated by the definition of BIOC in § 554.1201(9). A buyer not in possession of goods purchased qualifies as a BIOC only if he has a right to recover those goods (via replevin under § 554.2502 or a right to specific performance under § 554.2716.)
Finally, although the BAP did not reach the issue of whether constructive possession satisfies the “possession” requirement in § 554.1201(9), it noted that the visible and apparent identification of goods (versus the “invisible” identification accomplished by reference in a contract) would better maintain the balance of risk achieved by the BIOC exception to an inventory lender’s continuing security interest. “Visibly identifying goods upon sale permits a BIOC to purchase goods free and clear of a lender’s security interest while preserving a lender’s ability to monitor the status of its collateral” noted the BAP. “In contrast, if identification is ‘invisible,’ then the lender has no way of knowing whether its collateral has been sold and, potentially, whether it needs to take steps to protect its secured position.”
Conclusion: For the reasons stated in the decision, the BAP reversed the bankruptcy court’s order granting the Dealers’ motion to amend and the resulting amended judgment in favor of Dealers. REVERSED
In this bankruptcy case, where two separate notes had been issued on a residence, the Bankruptcy Appellate Panel of the 8th Circuit Court of Appeals ruled that Section 1355(b)(5) of the Code allows the debtor to cure a default on Note 1, return it to its status prior to the default and thereby "unfix" the amount due on Note 2, which, by its terms, became due when debtor defaulted on Note 1. The case was remanded to the bankruptcy court to permit debtor to present a plan which takes into account his obligation on Note 2.
Robert E. Olsen, Sr. v. Habitat for Humanity
Elaw Headnotes (Not Prepared by Court)
Appeal and Error:
1. We review the bankruptcy court’s factual findings for clear error and its conclusions of law de novo. Debold v. Case, 452 F.3d 756, 761 (8th Cir. 2006); Litzinger v. Litzinger (In re Litzinger), 340 B.R. 897, 903 (B.A.P. 8th Cir. 2006). Because the bankruptcy court’s interpretation of 1322(a) hereunder is a legal conclusion the BAP reviewed it de novo.
Date Filed and Case No.: March 9, 2007 (Corrected March 14, 2007) No. 06-6044NE
Parties: Robert Edward Olsen, Sr. and, Roselita Marie Olsen, Debtors–Appellants. Habitat for Humanity, Objector–Appellee.
Court Appealed From: United States Bankruptcy Court for the District of Nebraska
Judges on Panel: Kressel, Chief Judge, Schermer and Venters, Bankruptcy Judges.
Authored By: Kressel, Chief Judge.
Summary: On 07/28/98, the debtors purchased their home from Habitat for Humanity. As part of the purchase, the debtors executed two promissory notes. Note 1 required the debtors to pay a principal sum of $35,773 without interest over 224 months. The monthly payment was $160 with a final payment of $93. Note 1 contained the provision that if any payment was not made within 10 days of the due date or if any default occurred under the deed of trust, then Habitat had the option to declare the entire balance of the loan immediately due and payable. Note 2 was a non-recourse note which required the debtors to pay Habitat $35,000. However, Note 2 did not require payment so long as the debtors 1) continued to live at the property, 2) timely paid the amounts due under Note 1, and 3) were not in default of the deed of trust. If the debtors met all of these requirements, then the amount due under Note 2 would gradually decline to zero on 11/01/07.
The debtors failed to make timely payments on the loan starting in September 1998 and have failed to make timely payments throughout their occupancy. Habitat claimed that the debtors currently owe $36,113.28 in taxes, fees, and payments on Note 1 and $35,000 on Note 2. On 08/17/05, the debtors filed their chapter 13 bankruptcy petition. Debtors first plan was objected to by both the trustee and Habitat and the bankruptcy court denied confirmation. An amended plan required 48 monthly payments of $250, from which the trustee would pay Habitat’s arrearage. The debtors would pay Habitat directly the current payments due under Note 1. Habitat again objected to the plan because the plan did not adequately compensate it for all amounts due under both Note 1 and Note 2 (it did not provide for Note 2 at all.) After the confirmation hearing on the amended plan took place the court issued an order for an evidentiary hearing on the matter of whether the debtors could reinstate the original terms of Note 2 by curing the default on Note 1 through the bankruptcy plan. Following the hearing, the bankruptcy court denied confirmation of the debtors’ amended plan holding that the debtors are required to pay the full amount of Note 2 because it is a fixed obligation which became immediately due and payable when the debtors violated the conditions of the note. The court further held that the “fixing” of the obligation cannot be modified under 1322(b)(2) because this would constitute an impermissible modification of Note 2. The court granted the debtors time to file an amended plan which repaid both Note 1 and Note 2. The debtor sought and was granted leave to appeal the interlocutory order denying confirmation by the Bankruptcy Appellate Panel of the 8th Circuit Court of Appeals (BAP).
Does “Cure” mean a return to the status quo ante? The BAP noted that the parties argued about whether the amount owed under Note 2 is “locked -in” or “fixed” and whether the debtors may “de-accelerate” Note 2. These terms of art are not used in the bankruptcy code so rather than deal with these terms, the Court went directly to the statute. A chapter 13 plan may modify the rights of holders of secured claims, but the plan may not modify the rights of holders of claims that are secured only by an interest in the debtor’s principal residence. However, there is an exception to the exception to the rule. Section 1322(b)(5) provides that “notwithstanding paragraph (2) of this subsection, [the plan may] provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.”
“Curing” a default returns the situation to pre-default conditions and nullifies the consequences of that default. As pointed out in a case cited by the BAP:
The common meaning of ‘cure’ is to remedy, restore, remove, or rectify, and as the term relates to defaults, ‘cure’ means to restore matters to the status quo ante. Ordinarily the means by which one cures a default is by paying all amounts due and owing; however, ‘cure’ is the end, not the means, and what the term refers to is the restoration of the way things were before the default. Thus the plain meaning of ‘cure,’ as used in § 1322(b)(2) and (5), is to remedy or rectify the default and restore matters to the status quo ante.
In Re Clark, 738 F.2d 869, 872 (7th Cir. 1984)(citations omitted)(emphasis in original).
Here, under the provisions of Note 1 and Note 2, the amount due on Note 2 became fixed when the debtor defaulted on Note 1. Section 1322(b)(5) allows the debtor to cure the default on Note 1, return it to its status prior to the default and consequently “unfix” the amount due under Note 2. Although the debtors may cure the default on Note 2 and return to the status quo ante, their plan must still provide for Note 2 which the amended plan did not address. In addition, because the bankruptcy court denied confirmation on these grounds, it did not address a number of other issues regarding confirmation so the case was remanded.
Conclusion: For those reasons, the BAP reversed the judgment of the bankruptcy court and remanded the case to the bankruptcy court for proceedings consistent with the opinion. REVERSED AND REMANDED
The 8th Circuit Court of Appeals here finds that the grant of summary judgment, relating to claim arising from October 1999 strip search, is summarily affirmed. “Henceforth, the defendant (Martin) must show he is truly in imminent danger before being allowed to proceed in forma pauperis.”
Jacquas L. Martin v. Unknown Serrell [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
None
Date Filed and Case No.: March 20, 2007 No. 06-2163
Parties: JacQaus L. Martin, Appellant. Unknown Serrell, Lt.; Unknown Rohlander, Sgt.; Unknown Clapper, Sgt.; Unknown Crosby, U.M.; Unknown Thompson, C.W.; Unknown Wilson, Cpl.; Unknown Anson; Unknown Behering, C.W.; Unknown Tomek, Cpl.; Frank Hopkins; Michael Kenny; Fred Britten; Unknown Feckne, R.N.; S. Lemar, Dr.; Nebraska Department of Correctional Services; David Miner; Peter Reed, Appellees.
Court Appealed From: United States District Court for the District of Nebraska. Lauri Smith Camp, United States District Judge for the District of Nebraska.
Judges on Panel: Wollman, Murphy, and Bye, Circuit Judges.
Authored By: Per Curiam.
Summary: In this prisoner civil rights matter, Jacqaus L. Martin appeals the district court’s dismissal of certain claims and its adverse grant of summary judgment as to remaining claims. Martin’s lawsuit arose from a strip search in October 1999. He claimed excessive force was used during the search, and that the search was done in retaliation for his exercise of his First Amendment rights and constituted a sexual assault.
Was there error by the district court in dismissing this case? Having carefully reviewed the record, the 8th Circuit Court of Appeals found “--and Martin has provided--no basis for reversal.”
The Court noted that Martin had been previously determined to have three strikes under 28 U.S.C. § 1915(g) but that he has been permitted under section 1915(g)’s imminent-danger exception to proceed in forma pauperis (IFP) in the instant lawsuit and appeal, as well as in two other lawsuits and related appeals, based on his assertions that he is at risk for sexual assaults and unwarranted strip searches. The Court found that because the record in this case and the other two shows that his assertions are baseless, they alerted the district court that, in future cases making similar claims, Martin ought to be required to demonstrate that he is truly in imminent danger before being allowed to proceed IFP.
Conclusion: Accordingly, the the 8th Circuit affirmed and also denied his pending motion. AFFIRMED.
The 8th Circuit Court of Appeals here rules that the grant of summary judgment, relating to claim arising from May 2000 strip search, is summarily affirmed. The Court further rules that henceforth, Martin must show he is truly in imminent danger before being allowed to proceed in forma pauperis.
Jacqaus Martin v. Randy Crosby [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
None
Date Filed and Case No.: March 20, 2007 No. 06-1914
Parties: JacQaus L. Martin, Appellant. Randy Crosby; Peter Reed; Nebraska Department of Correctional Services, Appellees.
Court Appealed From: United States District Court for the District of Nebraska.
Judges on Panel: Wollman, Murphy, and Bye, Circuit Judges.
Authored By: Per Curiam.
Summary: In this prisoner civil rights matter, Jacqaus L. Martin appealed the district court’s dismissal of certain claims and its adverse grant of summary judgment as to remaining claims. Martin’s lawsuit arose from a strip search in May 2000. He claimed excessive force was used during the search, and that the search was done in retaliation for his exercise of his First Amendment rights and constituted a sexual assault.
Was there error by the district court in dismissing this case? Having carefully reviewed the record, the 8th Circuit Court of Appeals found “--and Martin has provided--no basis for reversal.”
The Court noted that Martin had been previously determined to have three strikes under 28 U.S.C. § 1915(g) but that he has been permitted under section 1915(g)’s imminent-danger exception to proceed in forma pauperis (IFP) in the instant lawsuit and appeal, as well as in two other lawsuits and related appeals, based on his assertions that he is at risk for sexual assaults and unwarranted strip searches. The Court found that because the record in this case and the other two shows that his assertions are baseless, they alerted the district court that, in future cases making similar claims, Martin ought to be required to demonstrate that he is truly in imminent danger before being allowed to proceed IFP.
Conclusion: Accordingly, the the 8th Circuit affirmed and also denied his pending motion. AFFIRMED.
In this bankruptcy case, where two separate notes had been issued on a residence, the Bankruptcy Appellate Panel of the 8th Circuit Court of Appeals ruled that Section 1355(b)(5) of the Code allows the debtor to cure a default on Note 1, return it to its status prior to the default and thereby "unfix" the amount due on Note 2, which, by its terms, became due when debtor defaulted on Note 1. The case was remanded to the bankruptcy court to permit debtor to present a plan which takes into account his obligation on Note 2.
Robert E. Olsen, Sr. v. Habitat for Humanity
Elaw Headnotes (Not Prepared by Court)
Appeal and Error:
1. We review the bankruptcy court’s factual findings for clear error and its conclusions of law de novo. Debold v. Case, 452 F.3d 756, 761 (8th Cir. 2006); Litzinger v. Litzinger (In re Litzinger), 340 B.R. 897, 903 (B.A.P. 8th Cir. 2006). Because the bankruptcy court’s interpretation of 1322(a) hereunder is a legal conclusion the BAP reviewed it de novo.
Date Filed and Case No.: March 9, 2007 (Corrected March 14, 2007) No. 06-6044NE
Parties: Robert Edward Olsen, Sr. and, Roselita Marie Olsen, Debtors–Appellants. Habitat for Humanity, Objector–Appellee.
Court Appealed From: United States Bankruptcy Court for the District of Nebraska
Judges on Panel: Kressel, Chief Judge, Schermer and Venters, Bankruptcy Judges.
Authored By: Kressel, Chief Judge.
Summary: On 07/28/98, the debtors purchased their home from Habitat for Humanity. As part of the purchase, the debtors executed two promissory notes. Note 1 required the debtors to pay a principal sum of $35,773 without interest over 224 months. The monthly payment was $160 with a final payment of $93. Note 1 contained the provision that if any payment was not made within 10 days of the due date or if any default occurred under the deed of trust, then Habitat had the option to declare the entire balance of the loan immediately due and payable. Note 2 was a non-recourse note which required the debtors to pay Habitat $35,000. However, Note 2 did not require payment so long as the debtors 1) continued to live at the property, 2) timely paid the amounts due under Note 1, and 3) were not in default of the deed of trust. If the debtors met all of these requirements, then the amount due under Note 2 would gradually decline to zero on 11/01/07.
The debtors failed to make timely payments on the loan starting in September 1998 and have failed to make timely payments throughout their occupancy. Habitat claimed that the debtors currently owe $36,113.28 in taxes, fees, and payments on Note 1 and $35,000 on Note 2. On 08/17/05, the debtors filed their chapter 13 bankruptcy petition. Debtors first plan was objected to by both the trustee and Habitat and the bankruptcy court denied confirmation. An amended plan required 48 monthly payments of $250, from which the trustee would pay Habitat’s arrearage. The debtors would pay Habitat directly the current payments due under Note 1. Habitat again objected to the plan because the plan did not adequately compensate it for all amounts due under both Note 1 and Note 2 (it did not provide for Note 2 at all.) After the confirmation hearing on the amended plan took place the court issued an order for an evidentiary hearing on the matter of whether the debtors could reinstate the original terms of Note 2 by curing the default on Note 1 through the bankruptcy plan. Following the hearing, the bankruptcy court denied confirmation of the debtors’ amended plan holding that the debtors are required to pay the full amount of Note 2 because it is a fixed obligation which became immediately due and payable when the debtors violated the conditions of the note. The court further held that the “fixing” of the obligation cannot be modified under 1322(b)(2) because this would constitute an impermissible modification of Note 2. The court granted the debtors time to file an amended plan which repaid both Note 1 and Note 2. The debtor sought and was granted leave to appeal the interlocutory order denying confirmation by the Bankruptcy Appellate Panel of the 8th Circuit Court of Appeals (BAP).
Does “Cure” mean a return to the status quo ante? The BAP noted that the parties argued about whether the amount owed under Note 2 is “locked -in” or “fixed” and whether the debtors may “de-accelerate” Note 2. These terms of art are not used in the bankruptcy code so rather than deal with these terms, the Court went directly to the statute. A chapter 13 plan may modify the rights of holders of secured claims, but the plan may not modify the rights of holders of claims that are secured only by an interest in the debtor’s principal residence. However, there is an exception to the exception to the rule. Section 1322(b)(5) provides that “notwithstanding paragraph (2) of this subsection, [the plan may] provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.”
“Curing” a default returns the situation to pre-default conditions and nullifies the consequences of that default. As pointed out in a case cited by the BAP:
The common meaning of ‘cure’ is to remedy, restore, remove, or rectify, and as the term relates to defaults, ‘cure’ means to restore matters to the status quo ante. Ordinarily the means by which one cures a default is by paying all amounts due and owing; however, ‘cure’ is the end, not the means, and what the term refers to is the restoration of the way things were before the default. Thus the plain meaning of ‘cure,’ as used in § 1322(b)(2) and (5), is to remedy or rectify the default and restore matters to the status quo ante.
In Re Clark, 738 F.2d 869, 872 (7th Cir. 1984)(citations omitted)(emphasis in original).
Here, under the provisions of Note 1 and Note 2, the amount due on Note 2 became fixed when the debtor defaulted on Note 1. Section 1322(b)(5) allows the debtor to cure the default on Note 1, return it to its status prior to the default and consequently “unfix” the amount due under Note 2. Although the debtors may cure the default on Note 2 and return to the status quo ante, their plan must still provide for Note 2 which the amended plan did not address. In addition, because the bankruptcy court denied confirmation on these grounds, it did not address a number of other issues regarding confirmation so the case was remanded.
Conclusion: For those reasons, the BAP reversed the judgment of the bankruptcy court and remanded the case to the bankruptcy court for proceedings consistent with the opinion. REVERSED AND REMANDED
Jurisdiction, Appeal and Error, Sentence Reduction
In this 8th Circuit Court of Appeals’ decision, the case is dismissed for lack of jurisdiction as an appeal of a Rule 35(b) sentence reduction is governed by 18 U.S.C. § 3742(a), not the general grant in 28 U.S.C. § 1291.
USA v. Austin A. Haskins
Elaw Headnotes (Not Prepared by Court)
Jurisdiction:
1. [Appeal and Error:] A court has jurisdiction to determine its own jurisdiction. See United States v. United Mine Workers of Am., 330 U.S. 258, 291 (1947).
2. [Jurisdiction over an appeal of a Rule 35(b)] Jurisdiction over an appeal of a Rule 35(b) sentence is governed by 18 U.S.C. § 3742(a), not the general grant in 28 U.S.C. § 1291. See, e.g., United States v. Moran, 325 F.3d 790, 792-93 (6th Cir. 2003); United States v. McDowell, 117 F.3d 974, 976-78 (7th Cir. 1997); United States v. McMillan, 106 F.3d 322, 324 n.4 (10th Cir. 1997); United States v. Doe, 93 F.3d 67, 67-68 (2nd Cir. 1996); United States v. Pridgen, 64 F.3d 147, 149-50 (4th Cir. 1995); United States v. Arishi, 54 F.3d 596, 598-99 (9th Cir. 1995); United States v. Chavarria-Herrara, 15 F.3d 1033, 1034-36 (11th Cir. 1994). Contra United States v. McAndrews, 12 F.3d 273, 277-78 (1st Cir. 1993) ("the appealability of an order resolving a Rule 35(b) motion is not controlled by 18 U.S.C. § 3742 because such an order is not, properly speaking, a sentence. . . . An order granting or denying a Rule 35(b) motion is, thus, a final decision for purposes of section 1291.").
Date Filed and Case No.: March 20, 2007 No. 06-1924
Parties: United States of America, Appellee. Austin A. Haskins, Appellant.
Court Appealed From: United States District Court for the District of Nebraska. Laurie Smith-Camp, United State District Judge for the District of Nebraska
Judges on Panel: Melloy, Smith, and Benton, Circuit Judges.
Authored By: Per Curiam.
Summary: After receiving a 41-month prison sentence, Austin Anderson Haskins asked the government to file a Motion to Reduce Sentence, under FED.R.CRIM.P. 35(b) (Rule 35(b)) due to his cooperation with several investigations. The government agreed and at the hearing, the government recommended a 10 % reduction. Haskins wanted more. The district court reduced his sentence to 36 months, nonetheless, Haskins appealed to the 8th Circuit Court of Appeals.
Does the 8th Circuit have jurisdiction to hear this appeal?
The 8th Circuit pointed out that a court has jurisdiction to determine its own jurisdiction. Haskins asserted that the 8th Circuit"has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, which provides for review of a final order subject to appeal, and pursuant to 18 U.S.C. § 3742, which allows for review of a federal sentence." The Court ruled that Haskins was mistaken as jurisdiction over an appeal of a Rule 35(b) sentence is governed by 18 U.S.C. § 3742(a), not the general grant in 28 U.S.C. § 1291. As such the the 8th Circuit ruled that it lacked jurisdiction under section 3742(a) to hear a defendant's appeal of the district court's ruling on a Rule 35(b) motion. “Although Haskins frames the issue as the sentence's overall reasonableness, he is appealing the court's ruling on the Motion to Reduce Sentence. Because Haskins does not satisfy the criteria of section 3742(a)(1)-(4), this court lacks jurisdiction to hear his appeal.” THE APPEAL IS DISMISSED.
The Bankruptcy Appellate Panel of the 8th Circuit here, rules that in this action plaintiff, which held an artisan's lien on debtors' farm equipment by virtue of its repairs to the equipment, did not lose its lien when debtor took the equipment without authority. As a result, the artisan lien did not lose its priority over the defendant lender's blanket lien. Chief Judge Kressel, dissents, noting that the majority has departed from well established principles of interpretation and, “as a result, has essentially engaged in the legislative process.”
Bellamy's, Inc. v. Genoa National Bank
Elaw Headnotes (Not Prepared by Court)
Appeal and Error:
1. [Conclusions of Law:] We review the bankruptcy court’s conclusions of law de novo. Dapec, Inc. v. Small Bus. Admin., U.S. (In re MBA Poultry, L.L.C.), 291 F.3d 528, 533 (8th Cir. 2002).
Parties: Bellamy’s Inc., Creditor - Appellant. Genoa National Bank, Creditor - Appellee
Court Appealed From: United States Bankruptcy Court for the District of Nebraska
Judges on Panel: Kressel, Chief Judge, Schermer, and Venters, Bankruptcy Judges
Authored By: Schermer, Bankruptcy Judge
Summary: This case involves a priority dispute between two lienholders: the Genoa National Bank (“Lender”) who asserts a first priority blanket lien on all of the personal property of Michael R. Borden (“Debtor”) and his wife, and Bellamy’s Inc. (“Artisan”) who asserts an artisan’s lien on certain equipment by virtue of repairs to the equipment. After filing bankruptcy, the Debtor took the equipment from the Artisan without authority, used it in his farming operations, and later returned the equipment to the Artisan’s possession. In April 2006, the Lender filed a motion to determine the priority of the respective liens asserted by the Lender and the Artisan in the Equipment. The bankruptcy court determined that no controlling law existed in Nebraska governing the situation of competing liens where an artisan loses possession of the personal property through action of the property owner. The bankruptcy court looked to other jurisdictions for guidance and found that other courts faced with the issue had reached conflicting results. The bankruptcy court decided that the Lender’s lien had priority over the lien asserted by the Artisan. In reaching its decision, the bankruptcy court concluded that continuous possession is required to maintain an artisan’s lien. Alternatively, the bankruptcy court held that even if continuous possession is not required, the automatic stay prevented the Artisan from regaining possession of the Equipment post-petition. Therefore the Artisan could not have had a possessory artisan’s lien. The Artisan filed a motion to reconsider which was denied by the bankruptcy court. The Artisan appealed to the Bankruptcy Appellate Panel of the 8th Circuit (BAP).
Does the Artisan have a lien which takes priority over the Lender’s lien? In order to answer this question, the BAP had to determine if the Artisan lost its lien when the Debtor removed the equipment from the Artisan’s possession and what impact, if any, the Debtor’s post-petition return of the equipment to the Artisan had on its lien. The BAP said Nebraska law provides a lien to any person who repairs a vehicle, machinery, or a farm implement while in such person’s possession for the reasonable or agreed charges for the work done or materials furnished on or to such vehicle, machinery, or farm implement and authorizes the artisan to retain possession of the property until the charges are paid. (Neb. Rev. Stat. § 52-201, artisan’s lien.) An artisan’s lien falls within the definition of possessory lien under Nebraska law. A possessory lien on goods, such as an artisan’s lien, has priority over a security interest in the goods unless the possessory lien is created by a statute that expressly provides otherwise. Reviewing Nebraska Law, the BAP interpreted it to provide that “the artisan’s lien statute does not provide otherwise; accordingly, an artisan’s lien has priority over a previously perfected security interest in the same goods.” The BAP ruled that while an artisan’s lien is a possessory lien, they ruled that the Artisan here did not lose its artisan’s lien in the Equipment when the Debtor took the Equipment without the Artisan’s knowledge or consent. “Furthermore,” the BAP said “even if the Artisan’s failure to take action to regain possession of the Equipment could be deemed consent to the Debtor’s prior wrongful taking of the Equipment, such after-the-fact consent could not have been more than a conditional consent to the Debtor’s temporary use of the Equipment with an agreement to return it to the Artisan.” They ruled that a conditional consent to a prior wrongful taking likewise does not defeat the Artisan’s lien. The BAP found this result to be consistent with the policy underlying the creation and priority of security interests.
As an artisan’s lien does not require registration with any entity, in order to give notice of the lien, the artisan is permitted to retain the property until receiving payment for the services provided to the property. The BAP noted that a third party interested in the property can easily learn that the property is not in the owner’s possession and is then put on inquiry notice to determine why the owner does not have possession of the property. A third party who continues to deal with the property owner after learning the owner lacks possession of the property does so at his or her peril.
The BAP went on to write that with respect to recorded interests, the general rule is that first in time has priority. However, artisan’s liens are not recorded and invariably are created after security interests have been granted. A lender who advances funds to acquire certain property or who loans money secured by existing property does so on the basis of the property at the time of the loan. “The lender generally assumes the owner will maintain the property after the loan is made and often mandates such maintenance in the loan documentation. If the property later breaks or is in need of maintenance, the owner takes the property to an artisan for repair or maintenance. Such repair or maintenance enhances the value of the property, thus enhancing the value of the lender’s collateral” they said. “The lender thus benefits from the repair and this was the case with the Equipment. By performing the repairs, the Artisan enhanced the value of the Equipment, thus benefitting the Lender by increasing the value of its collateral. Recognizing the superiority of the Artisan’s lien over the Lender’s security interest is consistent with the policy underlying artisan lien law.”
What about situations where an artisan is permitted to retain a lien without maintaining possession of the property? The BAP noted that artisan’s liens are designed to be equitable in nature and to protect the rights of artisans. If the artisan voluntarily surrenders possession, the artisan loses its lien. However, if the artisan loses possession through no action of his or her own, the artisan should not be punished. This is especially true where in situations, as here, the Lender benefitted from the repairs to its collateral and its interests in the Equipment were in no way impaired when the Debtor took the Equipment from the Artisan nor when he later returned the Equipment to the Artisan. The BAP went on to hold that the Artisan did not lose its lien when the Debtor took the Equipment without the Artisan’s permission.
Conclusion: The Artisan had an artisan’s lien in the Equipment on the date the Debtor filed bankruptcy which had priority over the Lender’s security interest under Nebraska law. The Artisan did not lose its artisan’s lien nor its priority over the Lender’s security interest when the Debtor took the Equipment from the Artisan’s possession postpetition without authority. Accordingly, under these circumstances we REVERSE the bankruptcy court’s order determining that the Lender’s security interest in the Equipment takes priority over the Artisan’s lien therein.
Kressel, Chief Judge, DISSENTING, noted that the majority had done an admirable job of reviewing the split of authority on the issue presented here, “none of which admittedly is binding, and picking the line of cases which it feels provides the fair result for this case.” Judge Kressel conceded that the result reached was appealing but thought that in reaching it, “the majority has departed from well established principles of interpretation and, as a result, has essentially engaged in the legislative process.”
“Since I think the Nebraska statute unequivocally provides for a first priority possessory lien only until possession is lost, I would hold that the bankruptcy court correctly held that Genoa National Bank’s perfected security interest has priority over Bellamy’s lien and would affirm.”
Plea Agreement, Waiver of Right to Appeal, Appeal and Error
The 8th Circuit Court of Appeals finds that the waiver of right to appeal entered into here, along with a plea agreement is valid, as the record showed it was knowingly and voluntarily entered into. The Court added that the waiver bars other arguments raised on appeal.
USA v. W. Tomasino-Zapata [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
Plea Agreement and Waiver of Appeal:
1. [Knowingly and Voluntarily:] See United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc) (this court will enforce appeal waiver contained in plea agreement when “both the waiver and plea agreement were entered into knowingly and voluntarily”) Cf. Andis, 333 F.3d at 890 (court will not enforce valid plea waiver where to do so would result in miscarriage of justice).
2. [Ineffective Assistance of Counsel] See United States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006) (this court “will consider ineffective-assistance claims on direct appeal only where the record has been fully developed, where not to act would amount to a plain miscarriage of justice, or where counsel’s error is readily apparent”).
Date Filed and Case No.: March 1, 2007 No. 06-2222
Parties: United States of America, Appellee. Walter Tomasino-Zapata, Appellant.
Court Appealed From: United States District Court for the District of Nebraska. Joseph F. Bataillion, Chief Judge, United States District Court for the District of Nebraska.
Judges on Panel: Smith, Gruender, and Shepherd, Circuit Judges.
Authored By: Per Curiam.
Summary: Walter Tomasino-Zapata (Zapata) appealed the sentence the district court imposed after he pleaded guilty to illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2), and to identity theft, in violation of 18 U.S.C. § 1028A. His counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), and Zapata has filed a supplemental brief.
Did Zapata knowingly and voluntarily waive his right to appeal? The 8th Circuit Court of Appeals said that the record showed that Zapata entered into both the plea agreement and waiver knowingly and voluntarily. To the extent Zapata argued his counsel was ineffective, the Court saw no reason to depart from this court’s usual rule of requiring ineffective-assistance claims to be raised in a 28 U.S.C. § 2255 motion, where a proper record can be developed. Having determined that Zapata’s plea and appeal waiver were voluntary and knowing, the 8th Circuit concluded the waiver bars the arguments raised by Zapata and his counsel. In addition, the Court reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), and found no nonfrivolous issues that fall outside the scope of the appeal waiver. “We conclude that no miscarriage of justice would result from enforcing the waiver in this appeal.”
Conclusion: The 8th Circuit specifically enforced the appeal waiver by dismissing this appeal and granted counsel’s motion to withdraw.
Sentencing, Appeal and Error, Constitutional Issue
In this appeal before the the 8th Circuit Court of Appeals, the Court finds that the government's refusal to move for a substantial assistance departure was not unconstitutional, and the district court did not err in refusing to compel the government to file the motion. Further the 8th Circuit finds that the sentence was not unreasonable.
United States v. William D. Lamb [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
Sentencing:
1. [Substantial Assistance Motion:] See United States v. Mullins, 399 F.3d 888, 890 (8th Cir. 2005) (where plea agreement does not require government to file substantial assistance motion, district court may intervene only if government’s refusal to make such motion was based on unconstitutional motive, such as unlawful discrimination or other action not rationally related to legitimate governmental interest).
2. [Constitutional Issues:] See United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (sentence is unreasonable if it appears district court gave significant weight to improper factor, failed to fully consider appropriate factor, or otherwise made clear error of judgment).
Date Filed and Case No.: March 12, 2007 No. 06-1775
Parties: United States of America, Appellee. William D. Lamb, Appellant.
Court Appealed From: United States District Court for the District of Nebraska. Richard G. Kopf, United States District Judge for the District of Nebraska.
Judges on Panel: Wollman, Hansen, and Colloton, Circuit Judges.
Authored By: Per Curiam
Summary: Following his guilty plea, William D. Lamb was convicted of one count of conspiracy to distribute 500 or more grams of methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841. The district court imposed a sentence of 312 months in prison, to be followed by five years of supervised release. On appeal, Lamb challenged the district court’s denial of his motion to compel the government to file a substantial-assistance sentence-reduction motion and further argues that the court erred in imposing a sentence within his advisory Guidelines range.
Was the district court’s denial of Lamb’s motion to compel the government to file a substantial-assistance sentence-reduction motion in error? The 8th Circuit Court of Appeals noted while Lamb complained that he was not credited for his pre-indictment assistance, he admited that he provided that assistance as part of a prior non-prosecution agreement, the terms of which he violated. The government’s refusal to move for a substantial assistance departure was not unconstitutional, and thus the court’s refusal to compel that motion was appropriate. Moreover, Lamb directed the the 8th Circuit to nothing in the record to support his claim that the district court did not recognize its sentencing discretion or that his Guidelines sentence was unreasonable. “Independently reviewing the entirety of the record, we are satisfied the court understood that the Guidelines were advisory and properly considered the factors enumerated in 18 U.S.C. § 3553(a) in fashioning its sentence” ruled the Court.
Conclusion: Accordingly, the 8th Circuit affirmed. AFFIRMED
Sentencing, Government's Refusal to File Substantial Assistance Motion
In this appeal before the the 8th Circuit Court of Appeals, the Court finds that the government's refusal to move for a substantial assistance departure was not unconstitutional, and the district court did not err in refusing to compel the government to file the motion. Further the 8th Circuit finds that the sentence was not unreasonable.
United States v. William D. Lamb [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
Sentencing:
1. [Substantial Assistance Motion:] See United States v. Mullins, 399 F.3d 888, 890 (8th Cir. 2005) (where plea agreement does not require government to file substantial assistance motion, district court may intervene only if government’s refusal to make such motion was based on unconstitutional motive, such as unlawful discrimination or other action not rationally related to legitimate governmental interest).
2. [Constitutional Issues:] See United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (sentence is unreasonable if it appears district court gave significant weight to improper factor, failed to fully consider appropriate factor, or otherwise made clear error of judgment).
Date Filed and Case No.: March 12, 2007 No. 06-1775
Parties: United States of America, Appellee. William D. Lamb, Appellant.
Court Appealed From: United States District Court for the District of Nebraska. Richard G. Kopf, United States District Judge for the District of Nebraska.
Judges on Panel: Wollman, Hansen, and Colloton, Circuit Judges.
Authored By: Per Curiam
Summary: Following his guilty plea, William D. Lamb was convicted of one count of conspiracy to distribute 500 or more grams of methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841. The district court imposed a sentence of 312 months in prison, to be followed by five years of supervised release. On appeal, Lamb challenged the district court’s denial of his motion to compel the government to file a substantial-assistance sentence-reduction motion and further argues that the court erred in imposing a sentence within his advisory Guidelines range.
Was the district court’s denial of Lamb’s motion to compel the government to file a substantial-assistance sentence-reduction motion in error? The 8th Circuit Court of Appeals noted while Lamb complained that he was not credited for his pre-indictment assistance, he admited that he provided that assistance as part of a prior non-prosecution agreement, the terms of which he violated. The government’s refusal to move for a substantial assistance departure was not unconstitutional, and thus the court’s refusal to compel that motion was appropriate. Moreover, Lamb directed the the 8th Circuit to nothing in the record to support his claim that the district court did not recognize its sentencing discretion or that his Guidelines sentence was unreasonable. “Independently reviewing the entirety of the record, we are satisfied the court understood that the Guidelines were advisory and properly considered the factors enumerated in 18 U.S.C. § 3553(a) in fashioning its sentence” ruled the Court.
Conclusion: Accordingly, the 8th Circuit affirmed. AFFIRMED
The 8th Circuit Court of Appeals here rules that a district court's refusal to grant variance or traditional Guidelines departure is unreviewable. The district court's sentence of 37 months for a drug distribution conspiracy conviction was not unreasonable as the court gave a detailed explanation recognizing rehabilitative efforts of defendant and found they were fairly typical. Further, the defendant did not meet her burden of showing unreasonableness of presumptively reasonable sentence.
USA v. Beatrice Lomeli [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
Sentencing: Guidelines
1. [Appeal and Error:] A district court's decision not to grant a Guidelines departure is unreviewable on appeal, if the district court recognized its right to depart and declined to do so. United States v. Godinez, 474 F.3d 1039, 1043 (8th Cir. 2007). ••• We review her ultimate sentence for unreasonableness. United States v. Pirani, 406 F.3d 543, 548 (8th Cir.) (en banc) (stating that the effect of Booker was "an advisory Guidelines system in which . . . courts of appeal [sic] review sentences for 'unreasonableness'") (quoting Booker, 543 U.S. at 261), cert. denied, 126 S. Ct. 266 (2005); see also, United States v. Rogers, 423 F.3d 823, 829 (8th Cir. 2005) (noting that "reasonableness review under Booker is akin to abuse of discretion") (internal marks omitted). ••• While a sentence within the Guidelines range is presumptively reasonable, the district court does have discretion post-Booker to vary from that advisory range in order to tailor a sentence when circumstances justify such a step. United States v. Maloney, 466 F.3d 663, 668 (8th Cir. 2006).
a. (Burden of Proof:) On appeal, the burden is on defendant to demonstrate that the sentence should have been lower based upon the § 3553(a) factors. United States v. Milk, 447 F.3d 593, 603 (8th Cir. 2006). She may do so "by showing the district court failed to consider a relevant factor that should have received significant weight, gave significant weight to an improper or irrelevant factor, or otherwise committed a clear error of judgment." Id. (internal marks omitted) see also Maloney, 466 F.3d at 688 (noting "that '[t]he Guidelines were fashioned taking the other § 3553(a) factors into account and are the product of years of careful study'") (quoting United States v. Lazenby, 439 F.3d 928, 932 (8th Cir. 2006))..
Date Filed and Case No.: March 22, 2007 No. 05-3959
Parties: United States of America, Appellee. Beatrice G. Lomeli, Appellant.
Court Appealed From: United States District Court for the District of Nebraska. Richard G. Kopf, United States District Judge for the District of Nebraska
Judges on Panel: Colloton, Hansen, and Gruender, Circuit Judges.
Authored By: Per Curiam.
Summary: Beatrice Gloria Lomeli appeals the 37-month sentence imposed upon her by the district court after she pleaded guilty to conspiracy to distribute 500 grams or more of a mixture containing methamphetamine. A grand jury indicted Ms. Lomeli for conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and possession with intent to distribute 500 grams or more of methamphetamine. While she initially pleaded not guilty, she later changed her plea on the conspiracy charge, pursuant to a cooperation agreement with the Government. The agreement stipulated that Ms. Lomeli would be held accountable for at least 5 kilograms but less than 15 kilograms of methamphetamine, and the possession charge was dismissed.
Was the sentence unreasonable? The 8th Circuit Court of Appeals found nothing in the record that indicated the district court's sentence of 37 months was unreasonable. The district court gave a detailed explanation that recognized the rehabilitative efforts of Ms. Lomeli, but found that the case was fairly typical and did not involve circumstances that the Guidelines failed to take into consideration. Ms. Lomeli had not met her burden of showing the unreasonableness of the district court's presumptively reasonable sentence.
Conclusion: Accordingly, the 8th Circuit affirmed the district court's judgment.
Sentencing, Downward Departure for Accepting Responsibility
Denial of acceptance of responsibility adjustment was not clear error rules the the 8th Circuit Court of Appeals, because defendant did not accept responsibility for additional relevant conduct.
USA v. Joseph Monday [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
Sentencing:
1. [Acceptance of Responsibility:] When determining eligibility for an adjustment under USSG § 3E1.1 a court looks to, among other things, whether or not the defendant "'truthfully admit[s] the conduct comprising the offense(s) of conviction, and truthfully admit[s] or not falsely den[ies] any additional relevant conduct for which the defendant is accountable.'" United States v. Kiel, 454 F.3d 819, 824 (8th Cir. 2006) (quoting USSG § 3E1.1, comment. (n.1(a))). "'[A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.'" Kiel, 454 F.3d at 824 (quoting USSG § 3E1.1, comment. (n. 1(a))). ••• Section 3E1.1 requires not only that a defendant "show[] a recognition and affirmative acceptance of responsibility for relevant conduct, and remorse for that conduct," but also that he "must accept responsibility for all of the conduct that is part of his conviction . . . [and] not minimize conduct or partially accept responsibility." United States v. Erhart, 415 F.3d 965, 971 (8th Cir. 2005), cert. denied, 126 S. Ct. 1181 (2006). "Special emphasis is placed on the defendant's honesty about the factual basis for the offense, rather than an emphasis on whether the defendant pleaded guilty or took the matter to trial." Id.
a. (Appeal and Error:) "This court reviews 'a district court's denial of an acceptance of responsibility adjustment under U.S.S.G.§ 3E1.1 for clear error,'" Peters v. United States, 464 F.3d 811, 812 (8th Cir. 2006) (quoting United States v. Winters, 416 F.3d 856, 860 (8th Cir. 2005)), and the decision of the sentencing judge is entitled to great deference upon review, Id.; USSG § 3E1.1, comment. (n. 5). ••• See United States v. Tjaden, 473 F.3d 877, 879 (8th Cir. 2007) ("Whether to grant a reduction for acceptance of responsibility is a factual determination which depends largely on the district court's credibility assessments.") (internal marks omitted).
b. (Burden of Proof:) The defendant bears the burden of establishing entitlement to this adjustment. Peters, 464 F.3d at 812.
Date Filed and Case No.: March 22, 2007 No. 06-1544
Parties: United States of America, Appellee. Joseph W. Monday, Appellant.
Court Appealed From: United States District Court for the District of Nebraska. Richard G. Kopf, United States District Judge for the District of Nebraska.
Judges on Panel: Colloton, Hansen, and Gruender, Circuit Judges.
Authored By: Per Curiam.
Summary: Joseph W. Monday appeals the district court's denial of his motion for a sentence reduction based upon acceptance of responsibility. Monday was indicted on one count of conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine. The case went to trial, where Monday did not contest his culpability for the conspiracy, only the amount of methamphetamine attributed to him. The jury returned a verdict finding Monday responsible for 500 grams or more of methamphetamine. Monday made several objections to the Presentence Investigation Report prepared prior to his sentencing hearing, all but one of which the district court denied. Monday also argued at his sentencing that he was eligible for, and entitled to, a two-level reduction in his offense level for acceptance of responsibility pursuant to United States Sentencing Guidelines (USSG) Manual § 3E1.1. The district court found that Monday was eligible for the downward adjustment but denied the motion because it did not believe Monday had been truthful. With an offense level of 36 and an adjusted criminal history category V, Monday's advisory Guidelines range was 292 to 365 months, and he was sentenced to 292 months of imprisonment.
Did the district court err in not granting Monday a downward departure?
While Monday did not contest his conspiratorial guilt, the Court noted that alone does not entitle him to an adjustment under USSG § 3E1.1 as a matter of right. Instead, Although Monday admitted he conspired only after his trial began, the district court, “in an abundant exercise of discretion,” found him to be eligible for an acceptance adjustment. The district court was also well within its discretion to determine that Monday had not fully accepted responsibility for his crime. Not only did he contest the drug quantity he was charged with, resulting in a continuing trial on that issue, the district court determined that he had not testified truthfully at trial regarding his involvement with methamphetamine use and purchases. The district court and the jury found that the testimony of the Government's witnesses was more credible than Monday's testimony, and the 8th Circuit found no clear error in the district court's decision denying Monday's motion for a sentence reduction based on acceptance of responsibility.
Conclusion: Accordingly, the 8th Circuit affirmed the judgment of the district court. AFFIRMED
Sentencing, Revocation of Sentence, Appeal and Error
In this review of a sentence imposed after the revocation of a sentence by the district court, the 8th Circuit Court of Appeals rules that although district court failed to acknowledge precise Chapter 7 revocation range, the district court's imposition of 24 month sentence for second violation of supervised release was harmless, as sentence was within the district court's discretion, the district court was firm in decision to impose 24 months, and the sentence was not unreasonable.
United States v. Daniel Synowiecki [UNPUBLISHED]
Elaw Headnotes (Not Prepared by Court)
Sentencing: Revocation of Sentencing:
1. [Guidelines:] The district court was required to consider the Chapter 7 policy statements, see United States v. Hensley, 36 F.3d 39, 42 (8th Cir. 1994). ••• A district court remains free to impose a revocation sentence outside the Guidelines range suggested by the policy statements, if in its discretion the court believes that a higher sentence is warranted. See United States v. Larison, 432 F.3d 921, 922-23 (8th Cir. 2006).
2. [Appeal and Error:] United States v. Sayre, 400 F.3d 599, 600-01 (8th Cir. 2005) (whether sentence was reviewed for plain error or harmless error, affirmance was appropriate because ultimate inquiry was whether district court’s error in following nonmandatory sentencing scheme affected defendant’s ultimate sentence, and it was clear court wanted to impose sentence it felt appropriate on undisputed facts, making any remand futile), cert. denied, 126 S. Ct. 198 (2005). Cf. Williams v. United States, 503 U.S. 193, 202-03 (1992) (when district court misapplies Guidelines, remand is required unless reviewing court determines, on basis of whole record, that error is harmless, i.e., error did not affect district court’s selection of sentence imposed);
3. [Statutes:] See 18 U.S.C. § 3583(e) (court must consider certain factors in determining revocation sentence, including those set forth in 18 U.S.C. § 3553(a)(1) (nature and circumstances of offense and history and characteristics of defendant), and (a)(2)(C) (need to protect public from further crimes of defendant)); United States v. Tyson, 413 F.3d 824, 825 (8th Cir. 2005) (per curiam) (revocation sentences are reviewed for unreasonableness in accordance with United States v. Booker, 543 U.S. 220 (2005)).
Date Filed and Case No.: March 2, 2007 No. 06-2125
Parties: United States of America, Appellee. Daniel Matthew Synowiecki, Appellant. Lauri Smith Camp, United States District Judge for the District of Nebraska,
Court Appealed From: United States District Court for the District of Nebraska.
Judges on Panel: Riley, Magill, and Melloy, Circuit Judges.
Authored By: Per Curiam.
Summary: While Daniel Synowiecki was serving the supervised release portion of his bank fraud sentence, he violated his supervised release and the district court sentenced him to 12 months in prison and 2 years of supervised release. During his second period of supervised release, he again violated his supervised release: ultimately he pleaded guilty to violating multiple release conditions, all Class C violations. The district court revoked supervised release and sentenced him to 24 months in prison with no further period of supervised release. Synowiecki appealed to the the 8th Circuit Court of Appeals.
Did the district court fail to consider the applicable Guidelines Chapter 7 revocation range, and did the court abuse its discretion in imposing an excessive sentence? The 8th Circuit noted that Synowiecki is correct that the district court was required to consider the Chapter 7 policy statements and although the Court believed that the district court indicated its awareness of the need to do so, the court failed to acknowledge the precise Chapter 7 revocation range applying to Synowiecki’s Grade C violations and criminal history category. Further, the probation violation worksheet in the record reflected a revocation range that is based on a Grade B violation. “Nevertheless,” ruled the 8th Circuit “regardless of whether any resulting error is reviewed for plain error or harmless error, the revocation sentence must be affirmed.” First, the Court said a district court remains free to impose a revocation sentence outside the Guidelines range suggested by the policy statements, if in its discretion the court believes that a higher sentence is warranted. Second, the Court’s review of the record convinced it that the district court was firm on the 24-month sentence because of Synowiecki’s history of supervised release violations and flouting of authority, as well as his need for rehabilitation and to be incapacitated to protect society. Finally, the Court concluded that the revocation sentence was not unreasonable. The district court here was clearly concerned about the defendant's multiple violations of supervised release and the need to protect society. In addition, the district court articulated as a reason for imposing the sentence she did, the defendant's unwillingness to cooperate with his probation officer or comply with the conditions of supervised release. “The district court's stated reasons for imposing a twenty-four month sentence are more than adequate to demonstrate the reasonableness of the sentence” said the Court.
Conclusion: Accordingly, the Court affirmed the sentence.
