LGST 201 UMGC Week 5 Varda Inc v Insurance Company of North America Questions

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LGST 201

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Background:  Chong is preparing a professional development seminar for the City Bar Association.  She has prepared exercises related to case opinions that reflect flaws in legal writing.  Chong has asked you to prepare answers to the exercises that she can use in the seminar.  She knows this practice will benefit the legal analysis and writing you are completing in the Hastings case.

Instructions: 

Following are case opinions that reflect flaws in legal writing.  Some of the examples may be amusing (such as one judge's reference to putting a pig in a dress and calling her Florence), but it is important to grasp the courts' underlying message: pay attention to what you write!

Complete the exercises below.  Do not copy and paste the questions into your uploaded document. 

1. On Westlaw, go to Varda, Incorporated v. Insurance Company of North America, at page 634 in volume 45 of Federal Reporter, Third Series.  

1a. Go to headnote 13 in the opinion, which is under Part IV, Costs.   In 3-4 sentences explain why Varda's counsel was denied court costs, although Varda was the successful party on appeal.

1b. In that same section of the opinion, Judge McLaughlin tells the story of what happened in 1596 to the author of a lengthy pleading.  Why was the author penalized?  What was his penalty?  Summarize that story in 1-2 sentences. 

1c. Provide the full and correct Bluebook citation for this case. Abbreviate where necessary.

2. On Westlaw, go to Bradshaw v. Unity Marine Corporation, Incorporated at volume 147, page 668, in Federal Supplement, Second Series.

2a. At pages 670 of the opinion, why does the judge chastise one party over citing volume 1886 of the Federal Reporter? Answer in 1 sentence.

2b. At page 671, why does the judge chastise counsel for not using a pincite? Answer in 1 sentence.

2c. In 3-4 sentences, discuss the judge's assessment of the legal authorities cited in the parties' pleadings.

2d. In addition to the errors noted in a, b, and c above, what lessons can you take away from this case? Answer in 2-3 sentences.

2e. Provide the full and correct Bluebook citation for this case. Abbreviate where necessary.

3. On Westlaw, go to United States v. Butler by typing this citation into the search box: 1995 WL 934960. This is an unpublished military appeal. Go to footnote 2 and respond:

3a. What Latin phrase do you think the government counsel meant when he typed "(el bang)" (hint: click on the Kelly opinion and look just below the list of counsel). What does this two-word phrase mean?

3b. What does (sic) mean when you see it embedded in a sentence?


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U.S. v. Butler U.S. Navy–Marine Corps Court of Criminal Appeals. | 1995 WL 934960 September 27, 1995 | Document Details All Citations: Not Reported in M.J., 1995 WL 934960 Search Details Jurisdiction: Navy-Marine Ct. of Crim. App. Delivery Details Date: Delivered By: Client ID: Status Icons: Inline KeyCite: June 19, 2021 at 5:13 AM Irma Conde LGST 200 Inline KeyCite completed successfully. © 2021 Thomson Reuters. No claim to original U.S. Government Works. Not Reported in M.J. | U.S. v. Butler, Not Reported in M.J. (1995) Not Reported in M.J., 1995 WL 934960 (N.M.Ct.Crim.App.) Only the Westlaw citation is currently available. U.S. Navy–Marine Corps Court of Criminal Appeals. UNITED STATES v. William G. BUTLER, XXX-XX-XXXX Airman Recruit (E–1), U.S. Naval Reserve. No. NMCM 95 00753. Decided 27 Sept. 1995. Sentence adjudged 19 December 1994. Military Judge: E.J. Barnett. Review pursuant to Article 66(c), UCMJ, of Special Court–Martial convened by Commanding Officer, USS CARL VINSON (CVN 70). Maj W. JAMES PAYNE, USMCR, Appellate Defense Counsel LT JONATHAN W. HARAY, JAGC, USNR, Appellate Government Counsel BEFORE W.A. DeCICCO T.D. KEATING E.D. CLARK AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT. PER CURIAM. *1 We have examined the record of trial, the assignments of error, 1 and the Government's reply thereto, and we have concluded that the findings and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. During presentencing, Prosecution Exhibits 1 through 6 were admitted without objection. Record at 31. Prosecution Exhibits 2 and 4 are Court Memoranda evidencing summary courts-martial at which the appellant was convicted of unauthorized absences. The record of trial contains no evidence that before either summary court-martial the appellant, (1) was advised of a right to consult with independent counsel, and (2) affirmatively and personally waived in writing his right to object to disposition by summary court-martial. See 238 (C.M.A.1977). United States v. Booker, 5 M.J. At the time of the appellant's presentencing hearing, the recognized prerequisite for admission of a prior summary court-martial was a showing of compliance with Booker. After the appellant's presentencing hearing, this Court decided that appellate authority had overtaken implicitly overruled it, citing Booker and Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). United States v. Kelly, 41 M.J. 833 (N.M.Ct.Crim.App.1995)(en banc), petition granted, ––– M.J. ––––, No. 95–0625 (July 18, 1995)(Order). Applying the reasoning we expressed in Kelly, we hold that the military judge did not err when he admitted evidence of the appellant's two prior summary courts-martial. An appellant, in claiming ineffective representation by counsel, must establish both serious deficiency in the counsel's performance and prejudice arising from that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Lawson, 40 M.J. 475 (C.M.A.1994); United States v. Sanders, 37 M.J. 116 (C.M.A.), cert. denied, 510 U.S. 1010, 114 S.Ct. 600, 126 L.Ed.2d 565 (1993); United States v. Scott, 24 M.J. 186 (C.M.A.1987). To satisfy the first requirement, the allegation of ineffectiveness and the record of trial must contain evidence which, if unrebutted, would overcome the presumption of competence. United States v. Lewis, 42 M.J. 1 (1995). The appellant has failed to surmount the first tier of a valid claim of ineffective assistance of counsel. A defense counsel is not required to object to admissible evidence. Even had it been error for the military judge to admit evidence of the two summary courts-martial, the appellant has not shown that he was prejudiced by their admission. The appellant was convicted of two periods of unauthorized absence; one period of 5 months and one period of more than 11 months. Also, he was convicted of negligently missing a movement of his ship. During presentencing he presented evidence of serious emotional problems resulting from family tragedies. However, there was also evidence that the command was nearing completion of a hardship discharge for the appellant when he began a period of unauthorized absence. Prosecution Exhibit 5. Whatever sympathy the appellant's tragic family situation may have elicited was undercut by the appellant's abandonment of his ship and shipmates for nearly a year-and-a-half. We are satisfied that, © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 U.S. v. Butler, Not Reported in M.J. (1995) even without evidence of the two summary courts-martial, the military judge would have imposed the sentence which he did—a bad-conduct discharge. The appellant has provided no basis for a contrary belief. *2 The appellant's sentence is not inappropriately severe. Accordingly, the findings of guilty and the sentence, as approved on review below, are affirmed. DeCICCO, Senior Judge (concurring in the result): I dissented in to follow Kelly because I believed that we were bound Booker as long as it remained binding precedent of our superior court. See Kelly, 41 M.J. at 845 (DeCICCO, Judge, dissenting in part). The U.S. Court of Appeals for the Armed Forces has granted the petition for review of our absence of plain error. Rule for Courts–Martial 801(g); Mil. R. Evid. 103. Plain error is an error that is not only obvious and substantial, but it must also have had an unfair prejudicial impact on the proceedings. United States v. Fisher, 21 M.J. 327 (C.M.A.1986). We are to use it only sparingly, solely in those situations where a miscarriage of justice would otherwise result. Id. The case before us clearly does not involve plain error. Even without the two prior convictions by summary court-martial, the appellant deserved the sentence he received (which did not include any confinement or forfeiture of pay) in light of the fact that he was absent from his ship for 16 months and missed its movement through neglect. As a result, I do not find that the error in this case had an unfair prejudicial impact on the proceedings, and, therefore, no plain error. decision in Kelly, and, of course, will have the final word on the matter unless the U.S. Supreme Court grants certiorari. I agree completely with the majority's disposition of the other issues. In the meantime, I continue to find error when violated, and I so find in this case. Accordingly, I concur with the majority in affirming the Booker is findings and sentence. 2 This is not the end of the analysis, however. Because trial defense counsel did not object, the error was waived in the Footnotes 1 2 I. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBJECT TO THE GOVERNMENT'S OFFER OF TWO PRIOR, UNCOUNSELED SUMMARY COURT MARTIAL CONVICTIONS. II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ADMITTED INTO EVIDENCE IN AGGRAVATION EVIDENCE OF TWO UNCOUNSELED SUMMARY COURT MARTIAL CONVICTIONS BECAUSE THE ERROR WAS OBVIOUS, SUBSTANTIAL AND UNFAIRLY PREJUDICED THE SENTENCE OF A BAD–CONDUCT DISCHARGE. SEE United States v. Scranton, [sic] 35 M.J. 362, cert. den. 113 S.Ct 1595 (C.M.A.1992). III. UNDER THE CIRCUMSTANCES OF THIS CASE A BAD–CONDUCT DISCHARGE IS INAPPROPRIATELY SEVERE. When citing the Kelly opinion in its brief, the Government cited it as “ United States v. Kelly, 41 M.J. 833 (N.M.Ct. Rim. Ape 1995) (el bang)” [sic]. While we all make mistakes from time to time, and we all have a lot of cases to review, I would ask that counsel proofread their pleadings more carefully. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 Bradshaw v. Unity Marine Corp., Inc. United States District Court, S.D. Texas, Galveston Division. | 2001 WL 739951 June 27, 2001 | Document Details standard Citation: All Citations: Search Details Jurisdiction: Delivery Details Date: Delivered By: Client ID: Status Icons: Inline KeyCite: 147 F.Supp.2d 668 | Outline Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668 (S.D. Tex. 2001) West Headnotes (p.1) 147 F.Supp.2d 668, 2001 A.M.C. 2358 Attorneys and Law Firms (p.1) Texas ORDER GRANTING DEFENDANT'S MOTION FOR June 19, 2021 at 5:07 AM SUMMARY Irma Conde JUDGMENT LGST 200 (p.1) All Citations (p.4) Inline KeyCite completed successfully. © 2021 Thomson Reuters. No claim to original U.S. Government Works. Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668 (2001) 2001 A.M.C. 2358 147 F.Supp.2d 668 United States District Court, S.D. Texas, Galveston Division. John W. BRADSHAW, Plaintiff, v. UNITY MARINE CORPORATION, INC.; Coronado, in rem; and Phillips Petroleum Company, Defendants. No. CIV. A. G–00–558. | June 27, 2001. Synopsis Seaman brought action against dock owner for personal injuries sustained while working aboard vessel using the dock. Upon dock owner's motion for summary judgment, the District Court, Kent, J., held that since maritime law did not impose a duty on the dock owner to provide a means of safe ingress or egress to crew member of a vessel using the dock, Texas' two-year statute of limitations for personal injury cases, rather than three-year federal statute for maritime personal injuries, applied to crew member's action against dock owner for failure to provide a means of safe ingress or egress to crew member of a vessel using the dock. Maritime law did not impose a duty on the dock owner to provide a means of safe ingress or egress to crew member of a vessel using the dock. [3] Seamen Limitations and Laches Since maritime law did not impose a duty on the dock owner to provide a means of safe ingress or egress to crew member of a vessel using the dock, Texas' two-year statute of limitations for personal injury cases, rather that three-year federal statute for maritime personal injuries, applied to crew member's action against dock owner for failure to provide a means of safe ingress or egress to crew member of a vessel using the dock. V.T.C.A., Civil Practice & Remedies Code § 16.003; 763a. 46 App.U.S.C.A. § 1 Cases that cite this headnote Attorneys and Law Firms *669 Harold Joseph Eisenman, Attorney at Law, Houston, TX, for plaintiff. Ronald L White, White Mackillop et al, Houston, TX, for Coronado, and Unity Marine Corporation, Inc. Motion granted. Procedural Posture(s): Motion for Summary Judgment. Charles Wayne Lyman, Giessel Barker & Lyman, Houston, TX, for Phillips Petroleum Company. West Headnotes (3) [1] Admiralty Torts in General; Workers' Compensation Absent a maritime status between the parties, a dock owner's duty to crew members of a vessel using the dock is defined by the application of state law, not maritime law. 1 Cases that cite this headnote [2] Wharves ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT KENT, District Judge. Plaintiff brings this action for personal injuries sustained while working aboard the M/V CORONADO. Now before the Court is Defendant Phillips Petroleum Company's (“Phillips”) Motion for Summary Judgment. For the reasons set forth below, Defendant's Motion is GRANTED. Personal Injuries I. DISCUSSION © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668 (2001) 2001 A.M.C. 2358 Plaintiff John W. Bradshaw claims that he was working as a Jones Act seaman aboard the M/V CORONADO on January 4, 1999. The CORONADO was not at sea on January 4, 1999, but instead sat docked at a Phillips' facility in Freeport, Texas. Plaintiff alleges that he “sustained injuries to his body in the course and scope of his employment.” The injuries are said to have “occurred as a proximate result of the unsafe and unseaworthy condition of the tugboat CORONADO and its appurtenances while docked at the Phillips/Freeport Dock.” Plaintiff's First Amended Complaint, which added Phillips as a Defendant, provides no further information about the manner in which he suffered injury. However, by way of his Response to Defendant's Motion for Summary Judgment, Plaintiff now avers that “he was forced to climb on a piling or dolphin to leave the vessel at the time he was injured.” This, in combination with Plaintiff's Complaint, represents the totality of the information available to the Court respecting the potential liability of Defendant Phillips. 1 Defendant now contends, in its Motion for Summary Judgment, that the Texas two-year statute of limitations for personal injury claims bars this action. See Tex. Civ. Prac. & Rem.Code § 16.003 (Vernon Supp.2001). Plaintiff suffered injury on January 4, 1999 and filed suit in this Court on September 15, 2000. However, Plaintiff did not amend his Complaint to add Defendant Phillips until March 28, 2001, indisputably more than two-years after the date of his alleged injury. Plaintiff now responds that he timely sued Phillips, contending that the three-year federal statute *670 for maritime personal injuries applies to his action. See 46 U.S.C. § 763a. Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact— complete with hats, handshakes and cryptic words—to draft their pleadings entirely in crayon on the back sides of gravystained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devilmay-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552–53, 91 L.Ed.2d 265 (1986). When a motion for summary judgment is made, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, when a defendant moves for summary judgment based upon an affirmative defense to the plaintiff's claim, the plaintiff must bear the burden of producing some evidence to create a fact issue some element of defendant's asserted affirmative defense. See Kansa Reinsurance Co., Ltd. v. Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1371 (5th Cir.1994); F.D.I.C. v. Shrader & York, 991 F.2d 216, 220 (5th Cir.1993). Defendant begins the descent into Alice's Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n. 1 (5th Cir.1998). That is all well and good—the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court's water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie. Finally, Defendant does not even provide a cite to its desired Texas limitation statute. 2 A more bumbling approach is difficult to conceive—but wait folks, There's More! Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. See 46 U.S.C. § 763a. Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff “cites” to a single case from the Fourth Circuit. Plaintiff's citation, however, points to a nonexistent Volume “1886” of the Federal Reporter *671 Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court's dismay after reviewing the opinion, it stands simply for the bombshell proposition © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668 (2001) 2001 A.M.C. 2358 that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of The Fifth Circuit has held that “absent a maritime status between the parties, a dock owner's duty to crew members of a vessel using the dock is defined by the application of general maritime rather than state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir.1999) (What the ...)?! The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive. There is nothing in Plaintiff's cited case about ingress or egress between a vessel and a dock, although counsel must have been thinking that Mr. Liddy must have had both ingress and egress from the cruise ship at some docking facility, before uttering his fateful words. state law, not maritime law.” Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir.1993) (holding that Louisiana premises liability law governed a crew member's claim versus a dock which was not owned by his employer); Further, as noted above, Plaintiff has submitted a Supplemental Opposition to Defendant's Motion. This Supplement is longer than Plaintiff's purported Response, cites more cases, several constituting binding authority from either the Fifth Circuit or the Supreme Court, and actually includes attachments which purport to be evidence. However, this is all that can be said positively for Plaintiff's Supplement, which does nothing to explain why, on the facts of this case, Plaintiff has an admiralty claim against Phillips (which probably makes some sense because Plaintiff doesn't). Plaintiff seems to rely on the fact that he has pled Rule 9(h) and stated an admiralty claim versus the vessel and his employer to demonstrate that maritime law applies to Phillips. This bootstrapping argument does not work; Plaintiff must properly invoke admiralty law versus each Defendant discretely. See Debellefeuille v. Vastar Offshore, Inc., 139 F.Supp.2d 821, 824 (S.D.Tex.2001) (discussing this issue and citing authorities). Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon—Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig. accord Forrester v. Ocean Marine Indem. Co., 11 F.3d 1213, 1218 (5th Cir.1993). Specifically, maritime law does not impose a duty on the dock owner to provide a means of safe ingress or egress. See Forrester, 11 F.3d at 1218. Therefore, because maritime law does not create a duty on the part of Defendant Phillips vis-a-vis Plaintiff, any claim Plaintiff does have versus Phillips *672 must necessarily arise under state law. 3 See id.; 332–34. Florida Fuels, 6 F.3d at [3] The Court, therefore, under Erie, applies the Texas statute of limitations. Texas has adopted a two-year statute of limitations for personal injury cases. See Tex. Civ. Prac. & Rem.Code § 16.003. Plaintiff failed to file his action versus Defendant Phillips within that two-year time frame. Plaintiff has offered no justification, such as the discovery rule or other similar tolling doctrines, for this failure. Accordingly, Plaintiff's claims versus Defendant Phillips were not timely filed and are barred. Defendant Phillips' Motion for Summary Judgment is GRANTED and Plaintiff's state law claims against Defendant Phillips are hereby DISMISSED WITH PREJUDICE. A Final Judgment reflecting such will be entered in due course. II. CONCLUSION After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable [1] [2] Now, alas, the Court must return to grownup land. odor of wet dog emanating from such) the Court believes it As vaguely alluded to by the parties, the issue in this case has satisfactorily resolved this matter. Defendant's Motion for turns upon which law—state or maritime—applies to each Summary Judgment is GRANTED. of Plaintiff's potential claims versus Defendant Phillips. And despite Plaintiff's and Defendant's joint, heroic efforts to At this juncture, Plaintiff retains, albeit seemingly to his obscure it, the answer to this question is readily ascertained. befuddlement and/or consternation, a maritime law cause © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668 (2001) 2001 A.M.C. 2358 of action versus his alleged Jones Act employer, Defendant Unity Marine Corporation, Inc. However, it is well known around these parts that Unity Marine's lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what's left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action. 4 IT IS SO ORDERED. All Citations 147 F.Supp.2d 668, 2001 A.M.C. 2358 Footnotes 1 2 3 4 Six days after filing his one-page Response, Plaintiff filed a Supplemental Opposition to Phillips Petroleum Company's Motion for Summary Judgment. Although considerably lengthier, the Supplement provides no further illumination of the factual basis for Plaintiff's claims versus Phillips. Defendant submitted a Reply brief, on June 11, 2001, after the Court had already drafted, but not finalized, this Order. In a regretful effort to be thorough, the Court reviewed this submission. It too fails to cite to either the Texas statute of limitations or any Fifth Circuit cases discussing maritime law liability for Plaintiff's claims versus Phillips. Take heed and be suitably awed, oh boys and girls—the Court was able to state the issue and its resolution in one paragraph ... despite dozens of pages of gibberish from the parties to the contrary! In either case, the Court cautions Plaintiff's counsel not to run with a sharpened writing utensil in hand—he could put his eye out. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 Varda, Inc. v. Insurance Co. of North America United States Court of Appeals, Second Circuit. | January 13, 1995 | 45 F.3d 634 | Document Details KeyCite: standard Citation: All Citations: KeyCite Yellow Flag - Negative Treatment Declined to Follow by Cummings v. General Motors Corp., 10th Cir. (Okla.), April 28, 2004 Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d 634 (2d Cir. 1995) 45 F.3d 634, 31 Fed.R.Serv.3d 1105 Search Details Jurisdiction: New York Delivery Details Date: Delivered By: Client ID: Status Icons: Inline KeyCite: June 19, 2021 at 5:01 AM Irma Conde LGST 200 Inline KeyCite completed successfully. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1995 WL 15935 Outline West Headnotes (p.1) Attorneys and Law Firms (p.2) Opinion (p.2) All Citations (p.7) Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995) 31 Fed.R.Serv.3d 1105 [2] KeyCite Yellow Flag - Negative Treatment Declined to Follow by Cummings v. General Motors Corp., (Okla.), April 28, 2004 4 Cases that cite this headnote [3] VARDA, INC., Plaintiff–Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant–Appellant. No. 579, Docket 94–7405. | Argued Oct. 28, 1994. | Decided Jan. 13, 1995. Synopsis Insured sued casualty insurer for breach of contract in failing to pay losses from burglary. Following jury trial before the United States District Court for the Southern District of New York, Lawrence M. McKenna, J., judgment was entered on jury verdict in favor of insured. Insurer appealed. The Court of Appeals, McLaughlin, Circuit Judge, held that: (1) insurer failed to preserve sufficiency of evidence issue due to its failure to renew its preverdict motion for judgment as matter of law; (2) affirmative defenses of fraud and failure to return signed transcripts of examination under oath (EUO) were properly dismissed; and (3) casualty policy did not preclude award of prejudgment interest under New York law. Under New York law, failure to file proofs of loss is material breach of casualty insurance contract and, if unexcused, precludes recovery under contract. 2 Cases that cite this headnote Mode and sufficiency of 4 Cases that cite this headnote [4] Federal Courts presentation Mode and sufficiency of Federal Courts reconsideration New trial, rehearing, or Where insurer did not renew its motion for judgment as matter of law after verdict in favor of insured, and did not even file motion for new trial, it waived challenge to denial of its motion for judgment as matter of law based on insufficiency of evidence. Fed.Rules Civ.Proc.Rule 50(b), 28 U.S.C.A. 1 Cases that cite this headnote [5] Insurance Excuses for Delay or Failure Delay in investigating or resolving claim will not, by itself, support finding of repudiation of claim on part of insurer, for purposes of determining whether insured is excused from failing to comply with proof of loss provision. West Headnotes (13) Insurance Effect of Noncompliance with Requirements Federal Courts presentation To preserve for appeal challenge to denial of preverdict motion for judgment as matter of law, movant must renew that motion after verdict. Fed.Rules Civ.Proc.Rule 50(b), 28 U.S.C.A. Affirmed. [1] Excuses for Delay or Failure If insurer repudiated claim before it demanded sworn proofs of loss, insured's failure to submit proofs is excused under New York law. 10th Cir. 45 F.3d 634 United States Court of Appeals, Second Circuit. Insurance 2 Cases that cite this headnote [6] Federal Courts Verdict New trial was not required to prevent manifest injustice in case in which appellant failed to preserve for appeal challenge to denial of preverdict motion for judgment based on insufficiency of evidence; no manifest injustice existed in case in which evidence, although not © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995) 31 Fed.R.Serv.3d 1105 overwhelming, was such that jury's verdict could not be deemed wholly without legal support. 12 Cases that cite this headnote [7] Insurance 4 Cases that cite this headnote [12] under New York law. 5001(b). 10 Cases that cite this headnote Insurance Weight and Sufficiency Evidence was insufficient to present jury question on insured's alleged fraud in inflating loss estimates for burglary under casualty policy were insurer introduced no direct evidence that insured padded its loss, but merely labeled as “patently incredible” insured's written statement describing burglary. [9] [10] Insurance Conflict Ambiguity, Uncertainty or N.Y.McKinney's CPLR 3 Cases that cite this headnote [13] Federal Civil Procedure briefs Arguments and Federal Civil Procedure of sanction Type and amount Denial of award of costs was appropriate remedy for successful party's violation of 50–page limit on briefs. F.R.A.P.Rule 28(g), 28 U.S.C.A.; U.S.Ct. of App. 2nd Cir.Rule 32, 28 U.S.C.A. 6 Cases that cite this headnote Under New York law, courts resolve ambiguities in insurance policy in insured's favor. Attorneys and Law Firms Insurance *635 Robert M. Sullivan, New York City (Ira J. Greenhill, P.C., of counsel), for defendant-appellant. Verification Under New York law, insured's failure to return signed transcript of examination under oath (EUO) did not warrant drastic remedy of dismissal of its suit; policy's “fuzzy language,” which merely required that insured sign any EUO transcript, and did not mention returning it, coupled with insured's failure to demand that insured return signed transcript and insured's cooperation during earlier parts of investigation, did not warrant denial of claim on such basis. 1 Cases that cite this headnote [11] Insurance matters Under New York law, casualty policy provision, which merely established time when insurer was required to pay insured's claim, did not address or preclude award of prejudgment interest Fraud or False Swearing To establish affirmative defense of fraud under New York law, insurer must show that insured intentionally made material misrepresentations to insurer. [8] Interest Interest Insurance matters Insurer must normally pay prejudgment interest when it breaches insurance contract under New York law. Dennis T. D'Antonio, New York City (Debra Ruth Wolin, Weg & Meyers, P.C., of counsel), for plaintiff-appellee. Before: VAN GRAAFEILAND, McLAUGHLIN, and LEVAL, Circuit Judges. Opinion McLAUGHLIN, Circuit Judge: The Insurance Company of North America (“INA”) issued a casualty insurance policy to Varda, Inc. (“Varda”), a clothing and shoe store. The policy required Varda to submit sworn proofs of loss after filing a claim with INA. When one of its stores was burglarized, Varda filed a notice of claim, but no proof of loss. INA undertook an investigation. Almost a year later, Varda sued INA in the United States District Court for the Southern District of New York (John © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995) 31 Fed.R.Serv.3d 1105 E. *636 Sprizzo, Judge ) for failure to pay the insurance. INA, for the first time, requested proofs of loss, but Varda did not submit them. INA filed an answer, asserting a number of defenses, including Varda's failure to submit sworn proofs of loss. The case went to trial (after being reassigned to Lawrence M. McKenna, Judge ). The jury found for Varda, and awarded $110,833.03 in damages. The district court added $82,478.92 in pre-judgment interest. INA now appeals, arguing that the district court erroneously charged the jury that if INA had repudiated the policy, this excused Varda's non-compliance with various provisions of the policy. INA's position is that, as a matter of law, there was no repudiation. INA also contends that the district court erroneously dismissed two of INA's affirmative defenses. Finally, INA claims that the insurance policy precludes the award of pre-judgment interest. We hold that: (1) because INA did not renew its pre-verdict motion for judgment as a matter of law, we cannot now set aside the verdict; (2) the district court properly dismissed INA's affirmative defenses; and (3) the policy does not preclude pre-judgment interest. In addition, we deny Varda its costs on appeal, because its counsel blatantly evaded this Court's page limit on briefs by the massive abuse of textual footnotes. BACKGROUND INA insured Varda against losses from burglaries. The insurance policy required Varda to submit proofs of loss after filing a claim. (Under New York law, however, failure to submit proofs of loss is not a material breach unless and until the insured receives and ignores a written demand for the proofs of loss. N.Y.Ins.Law § 3407(a) (McKinney 1985).) The policy also required Varda to sign the transcript of any examination under oath (“EUO”) INA conducted. One of Varda's stores was burglarized on October 23, 1984. Varda filed a notice of claim, but no proof of loss; and INA began an investigation. Cooperating with INA, Varda conducted an extensive post-loss inventory and compared that inventory with its pre-loss records. Although it pored through Varda's books, INA made no independent effort to determine whether any of the supposedly stolen inventory remained in the store. Moreover, INA's claims adjuster, Robert Dwyer, informed Varda that it had no provable loss and told INA that Varda's claim was “ludicrous.” Nevertheless, even after almost a year, INA still had not told Varda whether it would pay the claim. Fearing that INA would deny the claim, and having been cautioned by its own adjuster that the policy's one-year period to sue INA was running out, Varda brought a diversity suit against INA for failing to pay the insurance. After being sued, INA then requested, for the first time, that Varda submit sworn proofs of loss. (Varda had sixty days to do so after INA's request. See N.Y.Ins.Law § 3407(a).) INA also asked Varda's principal, Ezra Omri, to appear for an EUO. Omri appeared at the EUO, but failed to produce sworn proofs of loss. He later signed the transcript of the EUO, but did not return it to INA. INA made no additional request for either the proofs of loss or the EUO transcript. Instead, it filed its answer several days after the statutory sixty-day period for submitting the proofs of loss expired. In the answer, INA admitted there was an insurance contract between the parties, but little else. It also asserted several affirmative defenses, including failure to file proofs of loss, fraud, and failure to sign and return EUO transcripts. INA then moved for summary judgment on the proof of loss defense, arguing that Varda's failure to submit proofs of loss was a material breach of the insurance contract. Varda opposed the motion, arguing that: (1) INA had waived the proof of loss requirement because it never sent Varda the policy language that contained the proof of loss requirement; and, alternatively, (2) INA had already repudiated the insurance policy before it requested proofs of loss from Varda. The district court denied INA's motion. It held that whether Varda received the proof *637 of loss clause was a question of fact. Varda, Inc. v. Insurance Co. of North America, 701 F.Supp. 57, 60 (S.D.N.Y.1988). It also held that if Varda had not received the proof of loss provision, the jury could find that INA had waived (or was estopped from asserting) the proof of loss defense. Id. at 59. Finally, it held that neither INA's delay in investigating Varda's claim nor its adjuster's comment to INA that the claim was ludicrous amounted to a repudiation of the policy. Id. at 61. The case was reassigned to Judge McKenna, and went to trial. Omri (Varda's principal) testified about the burglary, how he calculated Varda's loss, and his efforts to get INA to process Varda's claim. He also testified that INA's claims adjuster, © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995) 31 Fed.R.Serv.3d 1105 Dwyer, never showed up to investigate the Varda store until January 16, 1985, almost three months after the loss. Dwyer testified for INA. He admitted that there had indeed been a burglary, but he recalled little of his investigation (it took place over nine years before). Contrary to Omri, he claimed that he met with Varda's claims adjuster at the store on October 31, 1984. (On cross-examination, however, he admitted that his written report of that “meeting” contained no photographs of the store nor any statement from the insured, even though he agreed that adjusters usually obtain such information as soon as possible.) He referred to the January 16, 1985 meeting as his “second” visit to the site. His own records revealed, however, that he visited the site to take photographs on November 8, 1984, which would make the January meeting the third site visit—if Dwyer was telling the truth about the October 31, 1984 meeting. At the close of the case, INA moved for judgment as a matter of law. Varda countered with a motion to dismiss INA's fraud and EUO transcript defenses. The district court denied INA's motion, and granted Varda's. After reviewing a proposed jury charge on repudiation, INA renewed its motion for judgment as a matter of law. In addition to the grounds raised earlier, INA now argued that it had not repudiated the policy. The district court again denied the motion. It charged the jury, over INA's objection, that Varda was not obliged to comply with INA's request for proofs of loss if the jury found that INA had already formed a definitive intent to deny Varda's claim. The jury returned a general verdict for Varda, awarding it $110,833.03 in damages. Varda moved for pre-judgment interest. The district court granted the motion, tacking on $82,478.92. INA neither renewed its motion for judgment as a matter of law, nor moved for a new trial. INA now appeals. Both parties concede that New York law governs. DISCUSSION Notwithstanding the flurry of issues raised by INA on appeal, we need address only three questions: (1) whether the district court erred by instructing the jury that Varda would be excused from failing to comply with the proof of loss provision if the jury found that INA had repudiated the policy; (2) whether INA has any affirmative defenses to Varda's claim of breach of contract; and (3) whether the insurance contract bars the award of pre-judgment interest. I. Repudiation [1] [2] There is no question that Varda failed to file proofs of loss, even after INA's written request for them. Under New York law, this failure is a material breach of contract, and, if unexcused, precludes recovery under the contract. See N.Y.Ins.Law § 3407(a) (McKinney 1985); Anthony Marino Constr. Corp. v. INA Underwriters Ins. Co., 69 N.Y.2d 798, 800, 513 N.Y.S.2d 379, 505 N.E.2d 944 (1987). If, however, INA had repudiated the claim before it demanded sworn proofs of loss, Varda's failure to submit the proofs is excused. See Igbara Realty Corp. v. New York Property Ins. Underwriting Ass'n, 63 N.Y.2d 201, 217, 481 N.Y.S.2d 60, 66, 470 N.E.2d 858, 864 (1984). INA argues that, because, as a matter of law, there was no repudiation, the district court should never have sent that issue to the jury. We cannot reach this issue, however, because INA failed to preserve it. *638 In retrospect, it has now become clear that the core issue both at trial and on this appeal is the repudiation question. If INA repudiated its liability under the insurance policy, it loses. If it did not repudiate, then Varda loses because it never filed the required proof of loss. Despite the centrality of this issue, it was treated cavalierly in the trial court and badly muddled in the appellate briefs. At the charging conference, Judge McKenna informed the parties that he would charge the jury on the repudiation issue and indicated what he intended to say. INA objected to the charge, not because it was substantively incorrect, but because INA believed there was insufficient evidence to carry that issue to the jury. Lest the trial judge miss the point, INA coupled its objection with a motion for judgment as a matter of law under Rule 50. Properly analyzed, then, this is an appeal from the denial of a Rule 50 motion. [3] [4] To preserve for appeal a challenge to the denial of a pre-verdict motion for judgment as a matter of law, a movant must renew that motion after the verdict. Fed.R.Civ.P. 50(b); see Johnson v. New York, New Haven & Hartford R.R., 344 U.S. 48, 50, 73 S.Ct. 125, 127, 97 L.Ed. 77 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 214–18, 67 S.Ct. 752, 754–56, 91 L.Ed. 849 (1947); Borger v. Yamaha Int'l Corp., 625 F.2d 390, 394–95 (2d Cir.1980). INA did not © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995) 31 Fed.R.Serv.3d 1105 renew its motion for judgment as a matter of law. Indeed, it did not even file a Rule 59(a) motion for a new trial. Accordingly, INA has waived its challenge to the denial of its motion for judgment as a matter of law based on the insufficiency of the evidence. See Cone, 330 U.S. at 218, 67 S.Ct. at 756 (“In the absence of such a motion, ... the appellate court [is] without power to direct the District Court to enter a judgment contrary to the one it had permitted to stand.”); Borger, 625 F.2d at 395 (“A judgment n.o.v. motion is not a useless formality[;]” without one, an appellate court cannot pass on the weight of the evidence.). INA contends that Judge McKenna excused it from renewing its motion after the verdict because he said at the charge conference that he regarded INA's positions “as part of the record preserved for appeal.” Putting aside the question of a district court's power, if any, to excuse a rule of procedure that affects this Court's jurisdiction, see Borger, 625 F.2d at 395, INA ignores the context of Judge McKenna's remark. Near the end of the charging conference (which had begun on the preceding day and had been interrupted by a blizzard), Varda's counsel had a few minor questions. Before asking them, he sought assurance that he was not waiving any earlier objections: So the record is clear, I am not waiving any other applications I have made previously with respect to the charge by now limiting it to these items, and I take it, your Honor, all of our prior discussions were in the context of the charge conferences, so any issues I would need to raise for the appeal, if raised during that discussion, I need not go through again. (Joint Appendix at 874). Judge McKenna graciously responded: Everything both sides said is part of the record. I don't think we are quite as formal as in state court about objections. Your positions were enunciated yesterday and I regard them as part of the record preserved for appeal. (Id.) This exchange established only that the attorneys need not repeat positions asserted the previous day about the jury charges. It did not excuse the requirements of Rule 50(b) for renewing a motion for judgment as a matter of law. [5] [6] Although we have, on occasion, ordered “a new trial to prevent a manifest injustice” in cases “[w]here a jury's verdict is wholly without legal support,” Sojak v. Hudson Waterways Corp., 590 F.2d 53, 54 (2d Cir.1978) (per curiam ), we see no manifest injustice here. To establish repudiation, Varda had to show that INA distinctly, unequivocally, and absolutely refused to perform its obligations under the policy. Rhodes, Couch on Insurance 2d at § 74:279 (rev. ed. 1983); see Aryeh v. Westchester Fire Ins. Co., 138 A.D.2d 337, 338, 525 N.Y.S.2d 628, 629 (2d Dep't), appeal denied, *639 73 N.Y.2d 703, 537 N.Y.S.2d 491, 534 N.E.2d 329 (1988). While a delay in investigating or resolving a claim will not, by itself, support a finding of repudiation, see Lentini Bros. Moving & Storage Co. v. New York Property Ins. Underwriting Ass'n, 76 A.D.2d 759, 761, 428 N.Y.S.2d 684, 685–87 (1st Dep't 1980) (dismissing insured's suit, in part because evidence of delay alone created no material dispute of fact concerning repudiation), aff'd, 53 N.Y.2d 835, 440 N.Y.S.2d 174, 422 N.E.2d 819 (1981), there was more here than mere delay. INA's own adjuster, Dwyer, doubted the veracity of the claim, and told INA officials that the claim was ludicrous. Although Dwyer may not have had the legal authority to deny Varda's claim, surely INA attached considerable weight to his recommendation. In addition, Varda's cross-examination of Dwyer suggested that Dwyer lied about the date his investigation began. The evidence thus supported an inference that INA was not conducting its investigation in good faith, and that it intended to deny the claim. While this was not overwhelming proof of repudiation, we cannot say that the “jury's verdict [wa]s wholly without legal support.” Sojak, 590 F.2d at 54. INA also contends that the repudiation issue had already been definitively resolved by the district court before trial, and, thus, could not be relitigated at the trial. INA had moved for summary judgment. Opposing the motion, Varda contended © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995) 31 Fed.R.Serv.3d 1105 that INA had repudiated Varda's claim. The district court was unimpressed by Varda's evidence of repudiation. Varda, Inc., 701 F.Supp. at 61. INA interprets this ruling to preclude the trial court from submitting the repudiation issue to the jury, but this overstates the effect of the pre-trial ruling. INA forgets that its motion for summary judgment was denied. Varda raised repudiation simply as a defense to INA's motion for summary judgment. The district court deprecated that defense because it “lack[ed] merit on the facts presented” by Varda in opposition to INA's motion for summary judgment. Id. Thus, rather than being barred from raising repudiation at trial, Varda was merely put on notice that it would have to proffer additional evidence if it wanted to get to the jury on the repudiation defense. It heeded the court's admonition and did produce additional evidence at trial. II. Affirmative Defenses INA argues that the district court erred by dismissing its defenses of (1) fraud and (2) failure to sign and return EUO transcripts. A. Fraud INA contends that the fraud issue should have gone to the jury. We disagree. [7] To establish the affirmative defense of fraud, the insurer must show that the insured intentionally made material misrepresentations to the insurer. Kaffalos, Inc. v. Excelsior Ins. Co., 105 A.D.2d 957, 958, 482 N.Y.S.2d 96, 98 (3d Dep't 1984); see also Saks & Co. v. Continental Ins. Co., 23 N.Y.2d 161, 164–65, 295 N.Y.S.2d 668, 671, 242 N.E.2d 833, 835 (1968) (entire policy void if insured has willfully concealed or misrepresented any material fact). The insurer must prove fraud by clear and convincing evidence. See Ausch v. St. Paul Fire & Marine Ins. Co., 125 A.D.2d 43, 44, 511 N.Y.S.2d 919, 922 (2d Dep't), appeal denied, 70 N.Y.2d 610, 522 N.Y.S.2d 110, 516 N.E.2d 1223 (1987). [8] INA's adjuster conceded that Varda's shop was burglarized. But INA claimed that Varda had inflated the loss estimates. INA introduced no direct evidence (and little more than innuendo) that Varda had padded its loss. Instead, INA, which carried the burden of proof on the fraud issue, was satisfied to label as “patently incredible” Varda's written statement describing the burglary. Moreover, there is no evidence of Varda's intent to defraud, “a necessary element of the defense.” Deitsch Textiles, Inc. v. New York Property Ins. Underwriting Ass'n, 62 N.Y.2d 999, 1001, 479 N.Y.S.2d 487, 488, 468 N.E.2d 669, 670 (1984). No reasonable jury could find fraud on so sparse a record, and the court properly took that issue away from the jury. B. Failure to Return Signed Transcripts INA argues that the policy required Varda to sign and return transcripts from examinations under oath. We can find no such obligation in the insurance policy. *640 [9] [10] Courts resolve ambiguities in an insurance policy in the insured's favor. See, e.g., Cantanucci v. Reliance Ins. Co., 43 A.D.2d 622, 623, 349 N.Y.S.2d 187, 191 (3d Dep't 1973), aff'd 35 N.Y.2d 890, 364 N.Y.S.2d 890, 324 N.E.2d 360 (1974). The policy here required Varda, upon request, to “submit to an examination under oath and sign a copy of the examination.” The policy is silent or ambiguous, at best, about whether Varda had to return any EUO transcript it signed. It certainly does not expressly require Varda to return the transcript. We realize, of course, that a signed transcript is of little value to INA if Varda keeps it. The policy's fuzzy language, however, coupled with INA's failure to demand that Varda return the signed transcript and Varda's cooperation during earlier parts of INA's investigation, persuades us that Varda's failure to return the signed transcript did not warrant the drastic remedy of dismissing Varda's suit. Cf. Pogo Holding Corp. v. New York Property Ins. Underwriting Ass'n, 73 A.D.2d 605, 606, 422 N.Y.S.2d 123, 124 (2d Dep't 1979) (insured failed to sign and return an EUO transcript, although the insurer requested it; rather than have its complaint dismissed outright, the insured could cure the breach of contract). Accordingly, we affirm the dismissal of the fraud and transcript affirmative defenses. III. Pre-judgment Interest INA maintains that, even if it is liable under the policy, its terms preclude the award of pre-judgment interest. Again, we find the policy ambiguous. [11] An insurance company must normally pay prejudgment interest when it breaches an insurance contract. See United States Fire Ins. Co. v. Federal Ins. Co., 858 F.2d © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995) 31 Fed.R.Serv.3d 1105 limits.” Production & Maintenance Employees' Local 504 v. Roadmaster Corp., 954 F.2d 1397, 1407 (7th Cir.1992). 882, 887–89 (2d Cir.1988) (interpreting N.Y.Civ.Prac.L. & R. § 5001(a)), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989); see also L. Smirlock Realty Corp. v. Title Guarantee Co., 63 N.Y.2d 955, 958, 483 N.Y.S.2d 984, 985, 473 N.E.2d 234, 235 (1984) (awarding insured in a claim concerning a title defect interest from date title policy was issued). In New York, “[i]nterest shall be computed from the earliest ascertainable date the cause of action existed.” Although the denial of costs may sting, Varda's counsel are fortunate that they practice *641 law in the late twentieth century. Four hundred years ago, an English court imprisoned the pleader of a 120–page replication. Mylward v. Weldon, (1596), first reported in 1 G. Spence, Equitable Jurisdiction of the Court of Chancery 375 n.h (Philadelphia, Lea & Blanchard 1846). In addition, it ordered a warden to: N.Y.Civ.Prac.L. & R. § 5001(b) (McKinney 1992). [12] INA focuses on the policy's provision requiring INA to pay Varda's claim within thirty days after: (1) INA reaches an agreement with Varda; (2) “the filing of an appraisal award”; or (3) “the entry of a final court judgment.” Contending that under this provision, interest does not accrue until thirty days after the entry of final judgment, INA believes that this provision trumps New York law. We reject this construction of the policy. The provision does not even mention pre-judgment interest. It merely establishes the time when INA must pay Varda's claim. It does not address the question of how the amount of the claim is to be calculated. Construing the ambiguity against INA, as we must, see, e.g., Cantanucci, 43 A.D.2d at 623, 349 N.Y.S.2d at 190–91, we find that the district court did not err in awarding pre-judgment interest to Varda. Id. The warden was then to: IV. Costs [13] Costs on appeal are routinely awarded to a successful party, “unless otherwise ordered.” Fed.R.App.P. 39(a). Varda's brief in this case is a textbook example of where it should be otherwise ordered. There is a fifty-page limit on briefs in the Court of Appeals. Fed.R.App.P. 28(g). Under Local Rule 32, “footnotes may be single-spaced,” while text must be double-spaced. Varda's fifty-page brief is pocked with fifty-eight footnotes, many over a page long and containing crucial parts of Varda's arguments. Indeed, approximately 75% of Varda's statement of facts and argument appear in footnotes. If Varda had presented its facts and argument in canonical form, i.e., in the text, its brief would have been roughly seventy pages. Varda thus brazenly used “textual footnotes to evade page End of Document cut a hole in the midst of the same engrossed Replication ... and put the said [pleader's] head through the same hole, and so let the same Replication hang about his shoulder with the written side outward. lead the said [pleader] bareheaded and barefaced round about Westminster Hall, whilst the Courts are sitting, and ... show him at the Bar of every of the three Courts within the Hall. Id. Varda's brief stirs nostalgia for the rigors of the common law. CONCLUSION We have carefully reviewed INA's other arguments, and conclude that they lack merit. The judgment of the district court is affirmed, and costs to Varda are denied. All Citations 45 F.3d 634, 31 Fed.R.Serv.3d 1105 © 2021 Thomson Reuters. No claim to original U.S. Government Works. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 7 U.S. v. Kelly U.S. Navy–Marine Corps Court of Criminal Appeals. | 68599 February 3, 1995 | 41 M.J. 833 | Document Details KeyCite: All Citations: KeyCite Red Flag - Severe Negative Treatment Decision Set Aside by U.S. v. Kelly, U.S. Armed Forces, September 30, 1996 41 M.J. 833 Search Details Jurisdiction: Navy-Marine Ct. of Crim. App. Delivery Details Date: Delivered By: Client ID: Status Icons: Inline KeyCite: June 19, 2021 at 5:26 AM Irma Conde LGST 200 Inline KeyCite completed successfully. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1995 WL U.S. v. Kelly, 41 M.J. 833 (1995) Principles of stare decisis apply in cases reviewed by military courts of criminal appeals, and such courts are bound to follow precedent established by senior courts; any departure, real or perceived, from decision of senior court must be fully justified. KeyCite Red Flag - Severe Negative Treatment Decision Set Aside by U.S. v. Kelly, U.S. Armed Forces, September 30, 1996 41 M.J. 833 U.S. Navy–Marine Corps Court of Criminal Appeals. UNITED STATES v. Danny R. KELLY, XXX–XX–XXXX Fireman Apprentice (E–2), U.S. Navy. 2 Cases that cite this headnote [3] Affirmed. Summary courts-martial Military Justice counsel; waiver Right to confer with Records of prior nonjudicial punishments or summary courts-martial are admissible to enhance sentence in subsequent courts-martial, without prosecution showing that accused was advised of right to confer with counsel before opting for nonjudicial punishment or trial by summary court-martial. NMCM 94 00169. Sentence Adjudged 1 May 1992. Decided 3 Feb. 1995. Synopsis Accused was convicted by special court-martial of two unauthorized absences. The United States Navy-Marine Corps Court of Criminal Appeals, Mollison, Senior Judge, held that records of prior nonjudicial punishments or summary courts-martial are admissible to enhance sentence in subsequent courts-martial, without prosecution showing that accused was advised of right to confer with counsel before opting for nonjudicial punishment or trial by summary courtmartial. Military Justice without counsel 2 Cases that cite this headnote [4] Constitutional Law Military Justice Proceedings Due process “Military due process” is not a source of military law, nor is it a natural or common-law concept; “military due process” requires creation of right by act of Congress. 2 Cases that cite this headnote West Headnotes (4) [1] Military Justice of evidence Admission or exclusion Where defense counsel did not object to evidence of previous summary court-martial on ground that there was no showing that accused had been advised of his right to object to trial by summary court-martial, or on ground that it had not been shown that review had been completed, those objections were waived. R.C.M. 1001(b)(3)(B); Military Rules of Evid., Rule 103. 7 Cases that cite this headnote [2] Military Justice Stare decisis *833 Maj R.K. Stutzel, USMC, Appellate Defense Counsel. CDR Philip D. Cave, JAGC, USN, Appellate Defense Counsel. LT Brian B. Rippel, JAGC, USNR, Appellate Government Counsel. Before the Court En Banc. MOLLISON, Senior Judge: The principal issue in this appeal from a special court-martial conviction is whether restrictions on admitting records of prior nonjudicial punishments and summary courts-martial during the presentencing procedure of a subsequent court- © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 U.S. v. Kelly, 41 M.J. 833 (1995) martial, as stated in United States v. Booker, 5 M.J. 238 (C.M.A.1977), should continue to be applied in light of Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). We conclude they should not. Accordingly, we affirm the appellant's conviction and sentence. I. Consistent with his pleas, the appellant was convicted of two unauthorized absences. Article 86, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 886 (1988). A military judge sentenced the appellant to confinement for 60 days, forfeiture of $250.00 pay per month for 3 months, reduction to pay grade E–1, and a bad-conduct discharge. The convening authority approved the sentence without modification. UCMJ art. 60, 10 U.S.C. § 860 (1988). The appellant's case is before this Court for review in accordance with *834 Article 66, UCMJ, 10 U.S.C. § 866 (1988). We may affirm such findings of guilty and such part of the sentence as we find correct in law and fact and determine on the basis of the entire record should be approved. UCMJ art. 66(c). We may hold a finding or sentence incorrect on an error of law only if the error materially prejudices the substantial rights of the appellant. UCMJ art. 59(a), 10 U.S.C. § 859(a) (1988). The appellant assigned three errors. 1 The first and third assignments of error lack merit and require no discussion. United States v. Jenkins, 38 M.J. 287 (C.M.A.1993). The appellant's second assignment of error concerns evidence of a prior summary court-martial admitted during the presentencing procedure in this case. That assignment of error requires further discussion. In United States v. Booker, a divided Court of Military Appeals held that before a record of a prior nonjudicial punishment or a summary court-martial could be admitted 2 against an accused to enhance the sentence at a subsequent court-martial, the prosecution must show that: (1) the accused had been advised of a right to consult with independent counsel before opting for nonjudicial punishment or trial by summary court-martial, and (2) the accused affirmatively and personally waived in writing his right to object to disposition by nonjudicial punishment or summary court-martial. 3 5 M.J. at 243–44. [1] During the presentencing procedure in the appellant's court-martial, trial counsel offered Prosecution Exhibit 5, a service record entry evidencing a previous summary courtmartial at which the appellant was awarded reduction in pay grade and forfeiture of pay based on four offenses of unauthorized absence and one offense of missing ship's movement. 4 UCMJ arts. 86, 87, 10 U.S.C. §§ 886, 887 (1988). Trial counsel offered no evidence of a Booker advisement or of a waiver of objection to trial by summary court-martial. Defense counsel objected to Prosecution Exhibit 5 on grounds there was “no evidence that the accused at that time was advised of his right to either consult with counsel or to be represented by counsel at a summary courtmartial, and the court should not consider that as a prior conviction unless there is some evidence regarding advice of counsel.” 5 Record at 39. The military judge overruled the objection and admitted Prosecution Exhibit 5 without comment. Id. *835 If Booker retains its vitality, the military judge erred. However, the United States Supreme Court has recently held in Nichols v. United States, that uncounseled, yet constitutionally firm, prior misdemeanor convictions may be used to enhance sentences in federal criminal trials and a cautionary advisement at the time of the prior conviction is not required. Therefore, we specified the following issue for briefing by the parties: WHETHER THE REQUIREMENTS OF United States v. Booker, 5 M.J. 238 (C.M.A.1977), CONTINUE TO APPLY IN TRIALS BY COURT– MARTIAL IN LIGHT OF Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994)? We also ordered the case be considered by this Court sitting as a whole in order to secure uniformity of decision and because the proceedings involved a question of exceptional © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 U.S. v. Kelly, 41 M.J. 833 (1995) importance. Courts of Military Review Rules of Practice and Procedure, Rule 17(a)Courts of Military Review Rules of Practice and Procedure, Rule 17(a), 2222 M.J. CXXXIII. II. The Constitution empowers Congress “[t]o make Rules for the Government of the land and naval Forces.” U.S. Const. art. I, § 8, cl. 14. Congress has exercised that authority by enacting the Uniform Code of Military Justice, 10 U.S.C. §§ 801– 946 (1988 & Supp. IV 1992). In exercising its constitutional authority, Congress has established a comprehensive hierarchy of disciplinary proceedings, and it has apportioned disciplinary authority among a variety of officials and courts. It has authorized four proceedings at which disciplinary violations may be disposed. They are, from the least severe to the most severe: nonjudicial punishment, trial by summary court-martial, trial by special court-martial, and trial by general court-martial. UCMJ arts. 15– 20, 10 U.S.C. §§ 815–820 (1988). For minor and non-capital offenses, Congress has authorized the imposition of nonjudicial punishment and trial by summary courts-martial. UCMJ arts. 15, 20, 10 U.S.C. §§ 815, 820 (1988). Nonjudicial punishment is imposed by the servicemember's commanding officer and generally may not exceed 30 days correctional custody or 3 days' confinement on bread and water if the servicemember is attached to or embarked in a vessel. Nonjudicial punishment may not be imposed if the member demands trial by court-martial in lieu thereof, unless the member is attached to or embarked in a vessel. A servicemember may appeal the imposition of nonjudicial punishment to the next superior authority. The summary court-martial is a one-officer proceeding conducted by a commissioned officer who need not be a lawyer. The summary court may not award a punitive discharge or confinement for more than 1 month. No accused may be brought to trial by summary court-martial over the accused's objection. A summary court-martial is automatically reviewed by the authority who convened the court and by a judge advocate and may be reviewed by the Judge Advocate General. UCMJ arts. 60, 64, 69, 73, 10 U.S.C. §§ 860, 864, 869, 873 (1988 & Supp. IV 1992). No further right of appeal exists with respect to these two proceedings. The special court-martial is the relative equivalent of the civilian misdemeanor court; the general court-martial is the relative equivalent of the civilian felony court. Special courts-martial are customarily presided over by a military judge, who must be a lawyer. A special court-martial may impose confinement up to 6 months and a bad-conduct discharge. General courts-martial must be presided over by a military judge. Depending upon the offense, a general courtmartial may impose up to life imprisonment, a dishonorable discharge, and/or death. UCMJ arts. 16, 18, 19, 26, 10 U.S.C. §§ 816, 818, 819, 826 (1988). The sentence of any special or general court-martial is reviewed by the officer who convened the court. Depending on the sentence, the accused may appeal to the Judge Advocate General, this Court, the United States Court of Appeals for the Armed Forces, and the United States Supreme Court. Additionally, some sentences may not be executed until approved by the service Secretary concerned, or by the President. UCMJ arts. 60, 66–67a, 69, 71, 73, 10 U.S.C. §§ 860, 866–867a, 869, 871, 873 (1988 & Supp. IV 1992). *836 Congress has prescribed when counsel shall be detailed to represent servicemembers in military disciplinary proceedings. UCMJ arts. 27, 32, 38, 70, 72, 10 U.S.C. §§ 827, 832, 838, 870, 872 (1988). Under the Code, the accused is entitled to the assistance of counsel, without charge, at an Article 32 pretrial investigation, special and general courts-martial, and post-trial proceedings and appeals thereon. No provision in the Code requires counsel be detailed to represent an accused at nonjudicial punishment proceedings or summary courts-martial, grants an accused the right to consult with counsel before deciding whether to object to nonjudicial punishment or trial by summary court-martial, or sets conditions on the admissibility of prior nonjudicial punishments or summary courts-martial during the presentencing procedure in a subsequent court-martial. Congress has delegated to the President and the Secretaries of the military departments the authority to promulgate supplemental regulations respecting nonjudicial punishment and summary courts-martial. UCMJ arts. 15(a), 20, 36(a), 10 U.S.C. §§ 815(a), 820, 836(a) (1988). The President has exercised that authority as to nonjudicial punishment by promulgating Part V of the Manual for Courts–Martial, United States, 1984 [MCM]. He has also exercised that authority as to trials by summary court-martial by promulgating Rules for Courts–Martial [R.C.M.] 1301 to 1306, set forth in Chapter XIII of Part II of the MCM. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 U.S. v. Kelly, 41 M.J. 833 (1995) Nothing in Part V of the MCM gives the servicemember a right to counsel in nonjudicial punishment proceedings. The “drafter's analysis” of Part V of the MCM states “that there is no right to consult with counsel before deciding whether to demand trial by court-martial,” and “unless otherwise prescribed by the Secretary concerned, the decision whether to permit a member to consult with counsel is left to the commander.” MCM, Part V, ¶ 4 analysis, app. 21, A21– 108. Otherwise, Part V of the MCM provides that unless the servicemember is attached to or embarked in a vessel, the member must be notified of the right to demand trial by court-martial in lieu of nonjudicial punishment, the right not to be tried by summary court-martial over the member's objection, and the right to be represented by counsel at a special or general court-martial. MCM, Part V, ¶ 4a(5). If the servicemember does not demand trial by court-martial in lieu of nonjudicial punishment within a reasonable time after such notice, the nonjudicial punishment hearing may proceed. MCM, Part V, ¶ 4b. The MCM further provides that if the servicemember requests personal appearance before the nonjudicial punishment authority, the servicemember in some cases is entitled to be accompanied by a spokesperson arranged for by the member. The spokesperson need not be a lawyer and is not entitled to travel or similar expenses. The proceedings need not be delayed to permit the presence of the spokesperson. MCM, Part V, ¶ 4c(1)(B). The Secretary of the Navy has promulgated supplementary regulations on nonjudicial punishment. Manual of the Judge Advocate General of the Navy, Judge Advocate General Instruction 5800.7C of 3 Oct 1990 (Change 1 of 6 Aug 1992) [JAGMAN]. The regulation provides in part: Legal rights. Prior to the imposition of nonjudicial punishment, the commanding officer or officer in charge shall ensure that the individual concerned is fully advised of all applicable legal rights and that other required action is taken prior to the hearing.... There is no right for an accused to consult with counsel prior to nonjudicial punishment; however, commanding officers are encouraged to permit an accused to so consult subject to immediate availability of counsel, the delay involved, or operational commitments or military exigencies. Failure to provide the opportunity for an accused to consult with counsel prior to nonjudicial punishment does not preclude the imposition of nonjudicial punishment; it merely precludes the admissibility of the record of nonjudicial punishment in aggravation at a later court-martial (unless the accused was attached to or embarked in a vessel at the time of the *837 imposition of the nonjudicial punishment). 6 JAGMAN 0109a. The same regulation sets out the nature and extent of the advice to be provided by military lawyers under these circumstances, as well as a rights-waiver form. Such advice is limited to an explanation of the legal ramifications of refusing nonjudicial punishment. It does not equate to the establishment of an attorney-client relationship, which military lawyers are cautioned not to establish unless detailed by proper authority. JAGMAN 0109d(2). The Rules for Courts–Martial expressly provide “[t]he accused at a summary court-martial does not have the right to counsel,” however, if the accused has retained civilian counsel, “that counsel shall be permitted to represent the accused at the summary court-martial if such appearance will not unreasonably delay the proceedings and if military exigencies do not preclude it.” R.C.M. 1301(e). The Rules also provide the accused must be informed of the right to object to trial by summary court-martial and must be given a reasonable period of time to decide whether to object. R.C.M. 1304. Congress has also delegated to the President the authority to prescribe regulations respecting pretrial, trial, and posttrial procedures, including modes of proof. These regulations may not conflict with the Code but must, so far as the President considers practicable, apply principles of law and rules of evidence generally recognized in criminal trials in federal district courts. UCMJ art. 36(a), 10 U.S.C. § 836(a) (1988). The President has exercised that authority by promulgating the Rules for Courts–Martial and the Military Rules of Evidence. R.C.M. 1001 sets forth the courtsmartial presentencing procedure. According to this rule, the prosecution may introduce evidence of disciplinary actions, including nonjudicial punishments. R.C.M. 1001(b)(2). It may also introduce military convictions, including summary court-martial convictions. Such convictions may be proven by any evidence admissible under the Military Rules of Evidence. R.C.M. 1001(b)(3). The Military Rules of Evidence set forth no Booker-type requirements. Finally, Congress has delegated to the President the authority to prescribe the maximum punishment for those offenses under the Code that are punishable as “a court-martial may direct.” UCMJ art. 56, 10 U.S.C. § 856 (1988). The President has likewise exercised that authority in the Rules for Courts–Martial and Part IV of the MCM. He has prescribed © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 U.S. v. Kelly, 41 M.J. 833 (1995) sentence limitations for the various offenses, and he has prescribed circumstances under which the sentence may be enhanced (escalated) based upon the existence of previous courts-martial convictions. R.C.M. 1003(d)(1)–(2). A courtmartial conviction includes for these purposes conviction by summary court-martial. R.C.M. 103(8)(E). None of the sentence enhancement provisions of the Rules for Court– Martial includes Booker-type requirements. III. In 1973, in United States v. Alderman, 22 C.M.A. 298, 46 C.M.R. 298, 1973 WL 14505 (1973), a divided Court of Military Appeals held that evidence of two prior summary courts-martial convictions was erroneously admitted during the presentencing procedure to enhance the sentence because the accused was not represented by counsel at the summary courts-martial. It based its conclusion that the accused had a right to counsel at summary courts-martial on Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), in which the United States Supreme Court held that the Sixth Amendment to the Constitution requires an accused be provided the assistance of counsel in civilian misdemeanor prosecutions resulting in imprisonment. The Court of Military Appeals based its conclusion that an uncounseled summary court-martial conviction could not be admitted to enhance the sentence in a subsequent trial on United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), in which the Supreme Court also held that it was reversible error for a trial judge *838 to consider, during sentencing, evidence of convictions that were constitutionally infirm. In Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), however, the Supreme Court settled the question of whether an accused servicemember is entitled to the assistance of counsel at a summary court-martial. There, the Supreme Court explicitly rejected Alderman, the application of Argersinger to summary courts-martial, and claims that the right to the assistance of counsel at summary courts-martial was required by either the Fifth or Sixth Amendments to the Constitution. 7 In doing so, it gave “particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S. Const. Art. I, § 8, that counsel should not be provided in summary courts-martial.” 92. 425 U.S. at 43, 96 S.Ct. at 1291– Henry appeared to overrule Alderman's holding that a prior uncounseled summary court-martial conviction could not be introduced for sentence enhancement purposes; however, following Henry, the Court of Military Appeals granted a petition for review of this Court's decision in Booker. There, two prior uncounseled summary courts-martial had been admitted for sentence enhancement purposes. Notwithstanding Henry, Chief Judge Fletcher, writing for an again-divided Court of Military Appeals, set forth the Booker rule, stated above. 5 M.J. at 243– 44. Thus, while the Court retreated from Alderman's holding that an accused is entitled to the assistance of counsel at a summary court-martial, it fashioned a somewhat different right, viz, the right to confer with independent counsel before opting for nonjudicial punishment or trial by summary courtmartial. It also held in Booker that in the absence of an advisement of this right to confer, a nonjudicial punishment or summary court-martial could not be admitted at a subsequent trial. The Court based these new procedural requirements upon the Fifth Amendment, the Sixth Amendment, and again on Argersinger. 5 M.J. at 243. In particular, Chief Judge Fletcher opined that “[i]t is in order to give some meaning to the due process guarantees of the Fifth Amendment that we must provide limitations on the utilization of evidence of the imposition of discipline at a summary court-martial in a subsequent trial.” Id. The Booker decision engendered criticism. See United States v. Nordstrom, 5 M.J. 528, 535 (N.C.M.R.1978) (Baum, J., concurring). That criticism persists today. See United States v. Lawer, 41 M.J. 751 (C.G.Ct.Crim.App.1995) (Baum, C.J.) (questioning Booker in light of Nichols ); United States v. Heath, 39 M.J. 1101, 1103– 04 (C.G.C.M.R.1994) (Baum, C.J.). Nonetheless, the armed forces have made wholesale changes in processing nonjudicial punishments and summary courts-martial to meet the requirements of Booker, and this Court has endeavored to apply the Booker rule. See generally United States v. Elston, 34 M.J. 1036 (N.M.C.M.R.1992). IV. Since Booker was decided, most appellate activity has been devoted to limiting its application. For example, the © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 U.S. v. Kelly, 41 M.J. 833 (1995) Court of Military Appeals reconsidered Booker and vacated that part of the decision that purported to limit the jurisdiction of summary courts-martial “ ‘solely ... [to] minor military offenses unknown in the civilian society,’ ” something the Court acknowledged had been incorrectly stated in its original decision. United States v. Booker, 5 M.J. 246, 248 (C.M.A.1978) (quoting Booker, 5 M.J. 238 at 242). The Court also held that Booker did not apply to summary courts and nonjudicial punishments prior to the date of the decision, October 17, 1977. United States v. Cannon, 5 M.J. 198 (C.M.A.1978) (per curiam); see also United States v. Syro, 7 M.J. 431 (C.M.A.1979). Next, in United States v. Mathews, 6 M.J. 357 (C.M.A.1979) (per Fletcher, C.J. with Cook & Perry, JJ., separately concurring in the result), the Court concluded that if the record of nonjudicial punishment offered in *839 aggravation did not reflect a waiver of counsel and the right to demand trial, the military judge had the obligation to conduct an inquiry on the record to supply the missing information, but the military judge could conduct an inquiry of the accused for this purpose. The portion of Mathews authorizing examination of the accused, however, was later discarded in United States v. Sauer, 15 M.J. 113 (C.M.A.1983). In United States v. Mack, 9 M.J. 300 (C.M.A.1980), a majority of the Court retreated from the requirements for proof of Booker compliance. There, an Army record of nonjudicial punishment met most of the Booker requirements, however, it did not reflect whether the accused had actually consulted with a lawyer or waived consultation. Faced with these circumstances, the Court held the military judge could engage in a presumption of regularity and admit the record. Chief Judge Everett devoted the balance of his lead opinion to an extensive reexamination of the basis for the Booker rule. He suggested that insofar as the rule prevents the use of records of uncounseled summary courts-martial for sentence enhancement purposes, such might be based on the then-recent decision in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), in which the Supreme Court held that an uncounseled misdemeanor civilian conviction could not be used to enhance a sentence even though the prior conviction was constitutionally valid. Mack, 9 M.J. at 313. On the question of the admissibility of uncounseled nonjudicial punishments, Chief Judge Everett observed in Mack that there was no constitutional basis for the Booker requirement, however, it could best be justified as “a practical means” of implementing the congressionally granted right to decline nonjudicial punishment, just as the Supreme Court had utilized a right of consultation with counsel as a means of implementing the Fifth Amendment privilege against self-incrimination for persons subject to custodial interrogation. 9 M.J. at 320 (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). He also observed that “service regulations now grant to many accused persons a right or an opportunity to consult counsel,” and such regulations stemmed in part from a memorandum issued by Secretary of Defense Laird in 1973. 8 9 M.J. at 320–21. He reasoned that “[t]o the extent that military directives call for counsel to be made available to accused persons in connection with nonjudicial punishment, Booker helps enforce those directives.” at 321. Finally, he observed: Id. Indeed, if we were writing now on a completely clean slate, it might be suitable simply to overrule United States v. Booker, as the Government has repeatedly requested and hold that, since an accused has neither a constitutional nor a statutory right to consult counsel or to be represented by counsel in connection with impending nonjudicial punishment, a record of nonjudicial punishment need contain no reference to consultation with counsel. However, at this point it seems unwise to turn back the clock. This is all the more true since consultation with counsel allows a better informed exercise of an accused's right to refuse nonjudicial punishment and also since the Department of Defense—apparently in response to various complaints—committed itself several years ago to a policy of providing an opportunity for accused persons to consult counsel in connection with proceedings under Article 15. Id. at 323. Judge Cook, the lone dissenter in concurred in the disposition of to the application of Booker, Mack, but took exception Baldasar. Chief Judge Fletcher, the author of Booker, dissented. In United States v. Hayes, 9 M.J. 331 (C.M.A.1980), decided the same day as Mack, Chief Judge Everett, with Judge Cook concurring, held that a Navy record of nonjudicial © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 U.S. v. Kelly, 41 M.J. 833 (1995) punishment met the requirements of Booker. Chief Judge Everett reiterated that the accused had neither a constitutional nor statutory right to consult with counsel in connection with nonjudicial punishment. 9 M.J. at 332. He also again took notice of the aforementioned DoD policy memorandum as well as the fact that the accused had not *840 objected at trial to the admission of the record. Id. at 332–33. Next, in United States v. McLemore, 10 M.J. 238 (C.M.A.1981) (per curiam with Fletcher, J., dissenting), the Court of Military Appeals held that an accused's failure to object to a service record entry of a nonjudicial punishment, introduced without proof of the accused's election to refuse or accept nonjudicial punishment, waived the issue on appeal. Then, in United States v. Kuehl, 11 M.J. 126 (C.M.A.1981) (per curiam with Fletcher, J., dissenting in part), the Court of Military Appeals further retreated from Booker when it held that the military judge did not err in admitting over defense objection a record of a prior summary court-martial when the record showed the accused had been advised of his right to consult with counsel, but did not indicate whether he had actually consulted or had waived consultation. The last Court of Military Appeals decision that appears to have accepted Booker as a working rule of military law was decided 11 years ago. United States v. Alsup, 17 M.J. 166 (C.M.A.1984). There, the Court held that a record of a prior summary court-martial was admissible when the accused was advised he had a right to be represented by appointed counsel at the summary court-martial but had not been advised of his right to consult with counsel before deciding whether to object to trial by summary court. V. [2] An objective examination of the Booker issue would suggest there is no constitutional, statutory, or regulatory right to the assistance of counsel at nonjudicial punishment proceedings or summary courts-martial, no right to confer with counsel before deciding whether to opt for such proceedings, and no right to be advised of any of the foregoing as a prerequisite to the admission of same at a subsequent trial. However, the principles of stare decisis apply in cases reviewed by military courts of criminal appeals, and we are bound to follow precedent established by our senior Courts. Accordingly, we are not generally free to ignore the precedent established by the Court of Military Appeals (now the United States Court of Appeals for the Armed Forces) or the United States Supreme Court. United States v. Jones, 23 M.J. 301 (C.M.A.1987); White. But, as with all American jurisprudence, military law is ever changing, and we, as the junior appellate court, believe our senior Courts expect us to remain vigilant to developments in constitutional and criminal law to ensure military law remains current. Accordingly, we believe the Court of Appeals for the Armed Forces “does not intend us to be bound by a case decision mindless of the impact that subsequent developments in the law may have upon it.” 9 United States v. Martindale, 36 M.J. 870, 878 n. 5 (N.M.C.M.R.1993), aff'd, 40 M.J. 348 (C.M.A.), cert. denied, 513 U.S. 1113, 115 S.Ct. 907, 130 L.Ed.2d 789. (1995). In all events, any departure, real or perceived, from the decision of our next senior Court must be fully justified. 10 Accordingly, we *841 must: (1) carefully consider the basis for the questioned precedent (e.g., the Constitution, statutes, or regulations); (2) we must clearly articulate a change in circumstances warranting departure (e.g., a recent decision of the United States Supreme Court re-interpreting a principle of constitutional law upon which the questioned precedent was based); and (3) though we do not pretend to be clairvoyant, we must apply the law in accordance what we believe our senior Courts would now hold, given a change in circumstances. VI. As noted above, the Booker issue has been highly contentious. Most decisions subsequent to Booker have retreated in some way from it. There does not appear to have been agreement as to the legal basis for the Booker rule, and the basis for the rule, like the rule itself, has also changed. Such factors alone might suggest the appropriateness of reexamination after the passage of some time. In any case, we believe that the former judges of the Court of Military Appeals based their decision on principles of Fifth and Sixth Amendment constitutional law, Argersinger, and Baldasar. See Booker, 5 M.J. at 243 & n. 20; Booker, 5 M.J. at 248 (Fletcher, C.J., dissenting upon reconsideration); Syro, 7 M.J. at 433; Mack, 9 M.J. at 326–28. Insofar as nonjudicial punishments are concerned, former Chief Judge United States v. White, 39 M.J. 796 (N.M.C.M.R.1994). © 2021 Thomson Reuters. No claim to original U.S. Government Works. 7 U.S. v. Kelly, 41 M.J. 833 (1995) Everett may have based his adherence to aforementioned DoD policy. Booker on the Since Booker, the Supreme Court has expressed reservations about mechanically applying its constitutional law holdings on a civilian's right to counsel to the military, see Davis v. United States, 512 U.S. 452, ––––n. *, 114 S.Ct. 2350, 2354 n. *, 129 L.Ed.2d 362 (1994), and it has recently reiterated that while the Due Process Clause provides some measure of protection to defendants in military proceedings, particular deference must be given to Congress' determination as to what process is due. Weiss v. United States, 510 U.S. 163, ––––, 114 S.Ct. 752, 760, 127 L.Ed.2d 1 (1994). [T]he tests and limitations [of due process] may differ because of the military context. The difference arises from the fact that the Constitution contemplates that Congress has plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline. Judicial deference thus *842 is at its apogee when reviewing congressional decisionmaking in this area. Our deference extends to rules relating to the rights of servicemembers: Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military.... [W]e have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated. 115 S.Ct. 200, 130 L.Ed.2d 131 (1994) (citing Goldman v. Weinberger, 475 U.S. 503, 507–08, 106 S.Ct. 1310, 1313–14, 89 L.Ed.2d 478 (1986)). More significantly, since the Court of Military Appeals relied upon constitutional law, Argersinger, and decision of germane. recently echoed the Weiss rule of deference, as well as a policy of deference to military regulations promulgated in accordance with congressional direction. United States v. Mitchell, 39 M.J. 131 (C.M.A.), cert. denied, 513 U.S. 874, Baldasar, the Supreme Court Nichols, decided June 6, 1994, is particularly 11 In Nichols, the defendant pled guilty to conspiracy to possess cocaine with intent to distribute. Under federal sentencing guidelines, the defendant's sentencing range was increased based upon a prior, uncounseled state misdemeanor conviction for driving under the influence for which the defendant was fined, but not imprisoned. The defendant objected to the increase on the basis of Baldasar. The Supreme Court took the opportunity to revisit Baldasar and its fractionated holding. As a consequence, it expressly overruled Baldasar and held that a uncounseled misdemeanor conviction, that was constitutionally valid because imprisonment had not been awarded, could be used to enhance the sentence in a subsequent trial for another crime. The Court also explicitly rejected the defendant's contention that minimum due process required the defendant be warned that his misdemeanor conviction might be used for enhancement purposes should the defendant later be convicted of another crime. 510 U.S. at ––––, 114 S.Ct. at 1928. Simply put, Nichols means that if a prior conviction is constitutional, its use in subsequent sentencing proceedings is constitutional without a special advisement. Insofar as the Booker rule was based on the Fifth Amendment, Sixth Amendment, Argersinger, and Baldasar, it has been undermined by the more recent decisions of Id. at –––– – ––––, 114 S.Ct. at 760–61 (citations and quotations omitted). The Court of Military Appeals has, itself, Weiss; Weiss, Davis, and Nichols. Insofar as the Booker rule, as applied to nonjudicial punishments, may have come to rest in part upon a 1973 DoD policy memorandum, we recall that the Court of Military Appeals has observed since Booker that “policy typically is not law. ” United States v. Sloan, 35 M.J. 4, 9 (C.M.A.1992); see also United States v. Garwood, 20 M.J. 148, 153–54 (C.M.A.), cert. *843 denied, 474 U.S. 1005, 106 S.Ct. 524, © 2021 Thomson Reuters. No claim to original U.S. Government Works. 8 U.S. v. Kelly, 41 M.J. 833 (1995) 88 L.Ed.2d 456 (1985). More importantly, we note that no such policy has been implemented by the President as a part of the MCM. In fact, the “drafter's analysis” to the MCM states that the current nonjudicial punishment procedure meets the policy concerns of former-Secretary Laird and that there is no right to consult with counsel before deciding whether to demand trial by court-martial. MCM, app. 21, A21–108. Additionally, such a right to counsel has not been granted by the Secretary of the Navy. JAGMAN 0109; see also United States v. Harrell, 5 M.J. 604, 607 (N.C.M.R.1978). VII. The clear teaching of Weiss and other Supreme Court cases is that interpretations of the Constitution rendered in the civilian context will not be applied mechanically to the military, and the greatest deference must be given in these matters to Congress and to the President to whom Congress has delegated the authority to establish procedural rules, rules of evidence, and sentencing criteria for trials by courtsmartial. The allocation of legal resources within the military is the prerogative of Congress and the President. Congress and the President have determined with deliberation and precision at which disciplinary proceedings servicemembers will be afforded the assistance of counsel and at which they will not. Such inclusions and exclusions are presumptively intentional. Cf. Custis v. United States, 511 U.S. 485, ––––, 114 S.Ct. 1732, 1736, 128 L.Ed.2d 517 (1994). Neither Congress nor the President has provided for the assistance of counsel at or before nonjudicial punishment proceedings or summary courts-martial. The President has expressly stated that an accused will not be afforded the assistance of counsel in trials by summary court-martial. The President has made no provision for the assistance of counsel in nonjudicial punishment proceedings, and such cannot be interpreted as an oversight. Cf. Custis. Similarly, the President has exercised his statutory authority in prescribing maximum authorized punishments and the presentencing procedures. He has authorized the consideration of prior nonjudicial punishments and summary courts-martial for these purposes, and neither he nor Congress has otherwise conditioned the admission of these records upon prior consultation with counsel. In short, Congress and the President have acted within their constitutional prerogatives—prerogatives which we are required to respect. See United States v. Wesley, 19 M.J. 534, 540–41 (N.M.C.M.R.1984). [3] If the Argersinger line of civilian cases is yet to be applied to this issue, Nichols now instructs that an uncounseled, but constitutionally valid conviction (which under Henry includes summary courts-martial whether or not confinement was awarded) may be used to enhance the sentence in a subsequent trial without any further advisement respecting counsel. A fortiori, the same would apply to nonjudicial punishments. Finally, we note that in his brief the appellant suggests that Booker was based on the ubiquitous “military due process.” We have found no case in which the Court of Military Appeals explicitly based the Booker decision on “military due process.” Nonetheless, it is true that the term “military due process” has appeared, and continues to appear, in the opinions of military appellate tribunals. United States v. Clay, 1 C.M.A. 74, 77, 1 C.M.R. 74, 77, 1951 WL 1512 (1951); United States v. Lemaster, 40 M.J. 178, 181 (C.M.A.1994). [4] The sources of military law include the Constitution, international law, the statutes governing the military establishment and regulations issued thereunder. MCM pmbl., Part I, ¶¶ 1, 3. “Military due process” is not a source of military law, nor is it a natural or common law concept. Cf. Wesley, 19 M.J. at 540–41. Rather, it was coined by the early Court of Military Appeals to describe a pattern of rights granted by Congress to servicemembers and as a means to determine when the abrogation of those rights warranted a remedy: [W]e look to the acts of Congress to determine whether it has declared that there are fundamental rights inherent in the trial *844 of military offenses which must be accorded to an accused before it can be said that he has been fairly convicted. There are certain standards in the military accusatorial system which have been specifically set by Congress and which we must demand be observed in the trials of military offenses. Some of these are more important than others, but all are of sufficient importance to be a significant part of military law. We conceive these rights to mold into a pattern similar to that developed in federal civilian © 2021 Thomson Reuters. No claim to original U.S. Government Works. 9 U.S. v. Kelly, 41 M.J. 833 (1995) cases. For lack of a more descriptive phrase, we label the pattern as “military due process” and then point up the minimum standards which are the framework for this concept and which must be met before the accused can be legally convicted. The Uniform Code of Military Justice contemplates that he be given a fair trial and it commands us to see that the proceedings in the courts below reach that standard. Generally speaking, due process means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. For our purposes, and in keeping with the principles of military justice developed over the years, we do not bottom those rights and privileges on the Constitution. We base them on the laws as enacted by Congress. But, this does not mean that we can not give the same legal effect to the rights granted by Congress to military personnel as do civilian courts to those granted to civilians by the Constitution or by other federal statutes. As we have stated in previous opinions, we believe Congress intended, in so far as reasonably possible, to place military justice on the same plane as civilian justice, and to free those accused by the military from certain vices which infested the old system. Believing this, we are required to announce principles consistent therewith. .... ... Under our powers as an appellate court we can reverse for errors of law which materially prejudice the substantial rights of the accused, and we need go no further than to hold that the failure to afford to an accused any of the enumerated rights [provided in the UCMJ] denied him military due process and furnishes grounds for us to set aside the conviction. Clay, 1 C.M.A. at 77–78, 1 C.M.R. at 77–78 (emphasis added). “It is self-evident from the foregoing language that the threshold requisites to the application of the concept of ‘military due process' are the existence of an act of Congress which grants a fundamental right to a military accused and the denial of that right in the course of a courtmartial proceeding.” United States v. Jerasi, 20 M.J. 719, 723 (N.M.C.M.R.1985), aff'd, 23 M.J. 162 (C.M.A.1986)23 M.J. 162 (C.M.A.1986). “Military due process” has also been employed to connote outrageous government conduct that gives rise to the functional equivalent of a recognized defense. Lemaster; cf. United States v. Wooten, 34 M.J. 141, 148 (C.M.A.1992). Inasmuch as “military due process” requires the creation of a right by an act of Congress, the term “military due process” cannot be used to explain Booker. Congress has not granted a right of representation or consultation respecting nonjudicial punishments or summary courts-martial, nor has it conditioned their use in the pre-sentencing procedure. The Booker rule is not consistent with the statutory pattern of rights Congress and the President have fashioned. The Booker rule is also not now consistent with the rule in federal civilian courts. Finally, we note that the failure to give a Booker advisement is not outrageous government conduct. The Court of Military Appeals did not base the Booker rule on “military due process.” Instead, it based the rule on principles of constitutional law, as it then interpreted them. Seventeen years later, those principles have been clarified by the Supreme Court. Armed with that clarification, we are of the view a different rule must now be applied. We express no view as to whether it is good policy or bad policy to mandate a right to confer with counsel before nonjudicial punishment proceedings or summary courtsmartial. We do not make policy. That prerogative belongs to others. It is our obligation *845 to carry out our statutory charge. UCMJ arts. 59, 66, 10 U.S.C. §§ 859, 866 (1988). Based on the foregoing, we have concluded that a reexamination of Booker is timely and appropriate, and upon such reexamination we have found no basis in law upon which to continue to apply the Booker rule. Accordingly, we conclude that the military judge's admission of the summary court-martial in appellant's case was not in error. For the reasons noted above, we also believe the United States Court of Appeals for the Armed Forces would now be of the same view. VIII. The findings and sentence as approved on review below are affirmed. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 10 U.S. v. Kelly, 41 M.J. 833 (1995) Court. 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Learning Activity Week 5 LGST-201
Student’s Name
Institutional Affiliation

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a. Varda’s counsel was denied court costs due to the brief’s length in the Court
of Appeals. The brief had more than 58 footnotes with several critical
provisions on the argument. Hence, the counsel was denied court costs
considering that the critical sections were misplaced and that the correct
placement...

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