text:
    Ted S. MINK, Plaintiff, v. Albert A. WEGLAGE, et al., Defendants.
    No. C-3-83-480.
    United States District Court, S.D. Ohio, W.D.
    March 28, 1985.

      Eddie Lawson, Jr., Springboro, Ohio, John K. Issenmann, Cincinnati, Ohio, for plaintiff.
    William L. Havemann, Dayton, Ohio, for defendant A. Weglage.
    Robert P. Bartlett, Jr., Thomas H. Pyper, Dayton, Ohio, for defendants Steadman, Judy, Askins, Brad Childress, Rhoades, Arnold, City of Germantown and James Desch.
   DECISION AND ENTRY SUSTAINING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT; MOTION TO COMPEL DISCOVERY (DOC. # 20) DEEMED MOOT; TERMINATION ENTRY

RICE, District Judge.

. I. FACTS

Plaintiff Mink was arrested in German-town by Defendant Weglage on June 19, 1982, and charged with obstruction of official business, assault and resisting arrest. Plaintiff was convicted of resisting arrest by a Miamisburg Municipal Court jury. His conviction was upheld by both the Montgomery County Court of Appeals and the Ohio Supreme Court.

Plaintiff filed the instant action under 42 U.S.C. § 1983, as well as under the First, Fourth, Fifth, Eighth and Fourteenth Amendments, on May 31, 1983. (Doc. # 1). In Counts I, II and III, Plaintiff charges Defendant Weglage with assault, false imprisonment and malicious prosecution in connection with his aforementioned arrest. In Counts IV, V and VI, Defendants City of Germantown, its police chief and city council members are charged with the negligent hiring, training and supervision of Defendant Weglage. All Defendants have moved for summary judgment in this matter. (Docs. # 16, 17).

II. LEGAL ANALYSIS

A. Defendants’ Motions for Summary Judgment With Respect to Counts I, II and III.

The primary issue raised by Defendants is whether Plaintiff Mink is collaterally es-topped from re-litigating the issue of Defendant Weglage’s use of excessive force by virtue of his conviction for resisting arrest in his earlier state criminal proceeding. In Allen v. McCurry, 449 U.S. 90,101 S.Ct. 411, 66 L.Ed.2d 308 (1980), a claimant sought damages from police officers, under 42 U.S.C. § 1983, arising out of a search and seizure. The plaintiff had unsuccessfully challenged the same conduct, by means of a motion to suppress, in the course of his state court criminal conviction. The adverse state court decision was held to preclude the relitigation of the matter in the subsequent Section 1983 suit, given that Plaintiff already had had a full and fair opportunity to litigate the search and seizure in question. 449 U.S. at 97-98, 101 S.Ct. at 416.

The Supreme Court made it clear in Allen that issues actually litigated in a state court proceeding are entitled to the same preclusive effect in a subsequent Section 1983 action as they would receive in the courts of the state where the judgment was rendered. Under Ohio law, collateral estoppel precludes relitigation in a second action of an issue which has been actually and necessarily litigated and determined in a prior action by the parties, or their privies in the first action. Goodson v. McDonough Power Equipment Inc., 2 Ohio St.3d 193, 443 N.E.2d 978 (1983). Defendants herein may be considered the privies of the City of Germantown, which was a party involved in Plaintiff’s prior criminal proceeding, and thus are entitled to invoke preclusion against Plaintiff in the instant action. Trautwein v. Sorgenfrei, 58 Ohio St.2d 493, 391 N.E.2d 326 (1979).

The Court finds the Allen decision to control the case herein. The trial judge in Mink’s criminal proceeding gave the following instruction to the jury as to the offense of resisting arrest:

In the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized Police Officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances____ If you find that the defendant’s arrest was without a reasonable basis, you may not find him guilty of the charge of resisting arrest.

(Doc. # 19, Exh. A at 205, 210). In convicting Plaintiff of the resisting arrest charge, the jury appears necessarily to have concluded that defendant’s arrest had a reasonable basis, and that Defendant Weglage did not use excessive or unnecessary force in effectuating the arrest. In disposing of Plaintiff’s appeal from the trial court’s denial of post-trial relief, the Montgomery County Court of Appeals took the position that the reasonableness of the force used by arresting officer Weglage had been resolved against Plaintiff (the defendant in the criminal case) by the jury. The appellate court also observed that the jury had found adequate evidence as to the existence of the elements of a lawful arrest based upon probable cause, even though the assault charge against Plaintiff was not sustained by the jury on the merits. (Doc. # 16, Exh. A at 3-4).

The Court is not persuaded by Plaintiff’s attempt herein to distinguish the Allen doctrine or at least to mitigate the impact of that ruling upon the allegations contained in his Complaint. The specificity of the jury instruction in Plaintiff’s criminal trial as to excessive force in the context of a charge of resisting arrest undermines Plaintiff’s attempt to rely on Hernandez v. City of Los Angeles, 624 F.2d 935 (9th Cir.1980). In Hernandez, collateral estoppel on the issue of excessive force was found inapplicable to a Section 1983 action brought by plaintiff subsequent to his conviction for resisting arrest. In that case, however, the jury instruction which defined the offense of resisting arrest was found to be ambiguous due to its reference to the reasonableness of the force used by both the arresting officer and the suspect. The Hernandez court was also concerned about the impact of an additional instruction as to self-defense upon the jury’s resolution of the issue of excessive force. No such ambiguities can be said to characterize the jury instructions or the state court proceedings which involved Plaintiff herein; indeed, no jury instruction as to self-defense was even given in Plaintiff’s trial for resisting arrest. (Doc. # 19, Exh. A).

Finally, Plaintiff attempts to save Count I of his Complaint, which charges Defendant Weglage with assault, by claiming that said Count involves an independent assault action for an assault which occurred after Defendant’s use of excessive force in effectuating the arrest. Under this theory, Count I would survive despite the collateral estoppel effect of Plaintiff’s conviction for resisting arrest. Rule 56(e) of the Federal Rules of Civil Procedure, however, requires more than mere allegations or denials from a party adverse to the parties moving for summary judgment. The Court finds no support in Plaintiff’s Complaint, or elsewhere, for the isolation of an independent assault action, and finds Plaintiff’s argument not to be well taken.

In sum, the Court finds that the issues of excessive force and probable cause to arrest were actually litigated in Plaintiff’s prior criminal proceedings, and that these issues were resolved against Plaintiff both at trial and on appeal. As a result, Plaintiff must be collaterally estopped from pursuing those Counts in his Complaint which by necessity would require re-litigation of these same issues. Accordingly, Defendants’ Motions for Summary Judgment are sustained with respect to Counts I, II and III of Plaintiff’s Complaint.

B. Defendants’ Motions for Summary Judgment with Respect to Counts IV, V and VI.

The Court’s conclusion supra, that Plaintiff must be collaterally estopped in the instant action from relitigating the issue of excessive force and probable cause also undermines the remaining Counts of Plaintiff’s Complaint, which allege negligence on the part of the City of German-town, its city council members and police chief in the hiring, training and supervision of Defendant Weglage. As the jury which convicted Plaintiff necessarily determined that Defendant did not use excessive or unnecessary force in arresting Plaintiff, none of the other Defendants’ alleged involvement with Weglage’s conduct or training, even if deemed to be true, can be deemed to have proximately caused the injuries claimed by Plaintiff.

Defendants’ Motions for Summary Judgment, insofar as they pertain to Counts IV, V and VI of Plaintiff’s Complaint, are, therefore, also sustained, meaning that Plaintiff is wholly precluded from pursuing the instant action under the doctrine of collateral estoppel. Judgment is to be entered for Defendants. Plaintiff’s Motion to Compel (Doc. # 20) is rendered moot by the above decision and, therefore, same will not be ruled upon.

The above captioned cause is hereby ordered terminated from the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America v. Scott JONES.
    Crim. No. 85-00094-01.
    United States District Court, E.D. Pennsylvania.
    April 4, 1985.

      Thomas L. McGill, Jr., Philadelphia, Pa., for defendant.
    Asst. U.S. Atty. John P. Pucci, Philadelphia, Pa., for the government.
   MEMORANDUM AND ORDER

WILLIAM F. HALL, Jr., United States Magistrate.

The defendant was indicted on March 14, 1985 in three counts of distribution of heroin, in three counts of distribution of cocaine and in one count of the use of a telephone to facilitate the distribution of cocaine. On March 29, 1985, the Government moved the court to detain the defendant pending his trial pursuant to Section 3142(f)(1)(C) of the Bail Reform Act of 1984: 18 U.S.C. § 3141, et seq. I held an evidentiary hearing on the motion on April 1, 1985. I will deny the Government’s motion for the following reasons.

The Government presented the testimony of an agent of the Drug Enforcement Agency. He testified that on five occasions during May and June 1983, the defendant sold and delivered to him various quantities of heroin and cocaine. He also testified that the defendant sold and delivered cocaine to an informant during that period. He also testified that one of the sales was negotiated in a telephone conversation between the defendant and a confidential informant, which transaction was later consummated by the delivery of a quantity of cocaine to him by the defendant. Based on this evidence I find that there is probable cause to believe, as did the grand jury, that the defendant has violated the Controlled Substances Act, 21 U.S.C. §§ 841(a)(1) and 843(b). The penalties for the distribution of heroin and cocaine, Section 841(b)(1)(A) include a term of imprisonment not exceeding fifteen (15) years. Therefore, the defendant faces a possible sentence of ninety (90) years imprisonment if convicted on each of the six counts of the indictment and an additional four (4) years for the use of a communication facility charge provided for in Section 843(c).

Upon my finding of probable cause that the defendant committed offenses, for which the maximum term of imprisonment for each count is ten years or more, as prescribed in the Controlled Substances Act, a rebuttable presumption arose that “no condition or combination of conditions will assure the appearance of the person as required and the safety of the community ...” 18 U.S.C. § 3142(e). The Act further provides, however, that the facts the judicial officer uses to support a finding that no condition or combination of conditions will reasonably assure the safety of the community shall be supported by clear and convincing evidence. Id.

The Government did not rely exclusively on the rebuttable presumption arising under § 3142(e) and contended that the defendant is a major narcotics trafficker and thus a danger to society. It based that contention on information from confidential informants that the defendant has continued to be engaged in the distribution of drugs from June 1983 until the present time and upon his “lavish lifestyle” which he maintains by the income he derives from trafficking in narcotics.

The DEA agent testified that he received information from a confidential informant that the defendant is presently engaged in selling cocaine from a tavern at 38th Street and Haverford Avenue in West Philadelphia and also from an apartment on Haverford Avenue. He received information from other confidential informants that he is selling cocaine in the vicinity of 38th Street and Haverford Avenue. The agent testified that he purchased narcotics from the defendant at an apartment at 3414 Haverford Avenue and that the telephone at the apartment is listed in the defendant’s name. He testified that the defendant told him that the apartment was his “crib” but that he also lives at 315 S. 63rd Street in West Philadelphia.

The Government also introduced a Pretrial Services report as evidence that the defendant maintains a “lavish” lifestyle notwithstanding his lack of income from lawful sources. The report states that the defendant has been unemployed since September 1984 and that the defendant claimed that he has been doing odd jobs since that time and that he has no other income. The report stated that the defendant owns a 1982 Mercedez Benz which he values at $38,000 and that he makes a monthly payment of $460.00 on a note held by the IVB bank. The report stated that he also owns a 1983 Monte Carlo which he values at $9,000. The report further stated that the defendant pays $160.00 a month on a mortgage on the 63rd Street property and that he vacationed in Aruba during January 1985.

The defendant produced the testimony of Robert Pleasant, Jr. who stated that he and his father own and operate three automobile service stations in West Philadelphia. He stated that he was willing to provide the defendant with immediate employment at one of the three service stations.

The defendant testified that he was last employed as an automobile body and fender person until September 1984 and that he did odd jobs on the waterfront two to three times a week since that time. He stated that he had neither pay stubs nor income tax records to corroborate his stated employment since September 1984. He testified that he helped Mahalia Singleton obtain the apartment on Haverford Avenue because she had no credit references and that he pays the rent, electric and telephone bill when she is away. He said that he 'stays at the apartment once a week. He explained that he is able to meet.his financial obligations with help from his children and that he is aided by income from gambling in Atlantic city where he has been “extremely” lucky.

Upon considering all of the evidence presented, I conclude that the defendant has not rebutted the presumption that he presents a risk of flight and a danger to the community. I find, however, that the Government has not met its burden of producing clear and convincing evidence that no condition or combinations of conditions will assure his appearance or safety of the community. As Honorable Joseph S. Lord, III, Chief Judge Emeritus of this court recently observed in denying the Government’s motion for pre-trial detention, the clear and convincing evidence requirement imposes a heavy burden of proof upon the Government which must be met before the defendant’s liberty may be curtailed by pre-trial detention. Here the Government has produced no evidence nor has it persuasively argued that there are no conditions that will assure the safety of the community. Accordingly, I will enter an order setting forth the terms of the defendant’s release, employing a combination of terms enumerated in § 3142(c).

My order is attached.

ORDER

AND NOW, this 4th day of April, 1985, it is hereby ORDERED that:

1. The defendant shall be released from custody upon the execution of a bail bond in the amount of One Hundred Thousand Dollars ($100,000.00) by him and his wife with ten percent (10%) in cash to be deposited with the Clerk of the Court. His release, however, is conditioned upon the following terms:

(a) that the defendant not commit a federal, state or local crime during the period of his release;
(b) that he accept the offer of employment by Robert Pleasant, Jr. and maintain employment with him during the period of his release;
(c) that he not travel beyond the City of Philadelphia without the prior express approval of the court;
(d) that he not go to or visit the apartment building at 3414 or 3416 Haverford Avenue for any purpose;
(e) that he not visit any taverns at 38th Street and Haverford Avenue or frequent the area of 38th Street and Haverford Avenue;
(f) that he shall not associate with any known or suspected sellers or users of narcotics;
(g) that he report in person daily to the Pre-trial Services Agency of this court;
(h) that he shall reside at 315 S. 63rd Street, Philadelphia, during the period of his release from 8:00 o’clock each evening until 8:00 o’clock in the morning of the following day.

2. The defendant shall be subject to telephone calls from the Pre-trial Services Agency to 315 S. 63rd Street at random times between 8:00 p.m. and 8:00 a.m. daily and his failure to be present to receive these telephone calls shall constitute a violation of this condition.

      . U.S.A. v. Richard Fisher, C.R. NO. 84-00477, January 1, 1985.


author: RICE, District Judge.

text:
    Mark MORRISSEY, Plaintiff, v. OMARK INDUSTRIES, INC., et al., Defendants.
    No. C-3-81-610.
    United States District Court, S.D. Ohio, W.D.
    April 17, 1985.

      Thomas Mester, Richard C. Alkire, Cleveland, Ohio, John R. Ensley, Dayton, Ohio, for plaintiff.
    A. Michael Knapp, Columbus, Ohio, for' defendant and third party plaintiff Omark Industries, Inc.
    Robert P. Bartlett, Jr., Dayton, Ohio, for defendants and third party plaintiffs ITT Corp.
    C. Richard McDonald, Cleveland, Ohio, for third party defendant Ackerman-Chacco Co., Inc.
    Stephen C. Findley, Cincinnati, Ohio, for third party defendant Federal Flooring Co.
    Gregory C. Gibson, Dayton, Ohio, for third party defendant Rodgers Const., Inc.
   DECISION AND ENTRY ON PENDING MOTIONS; SETTLEMENT CONFERENCE SET; NEW TRIAL DATE AND OTHER DATES TO BE SET, IF NECESSARY, FOLLOWING CONCLUSION OF SETTLEMENT CONFERENCE

RICE, District Judge.

The Plaintiff has filed this product liability action contending that on February 11, 1980, while employed as a construction worker by Federal Flooring Company of Dayton and while in the normal course of his work, he was injured when the powder-actuated nail driver which he was operating misfired, causing him severe and permanent injuries. At the time of the injury, the Plaintiff alleges that he was operating a Model 330 staple gun manufactured by Omark Industries, Inc. (Omark). The Plaintiff alleges that the three ITT Defendants are successors in interest and/or parent or controlling entities of Omark and are thus liable to him for his injuries. The Plaintiffs Amended Complaint sets forth claims in negligence, strict liability and breach of express and implied warranties, in causes of action one, two and three respectively. The Defendant Omark and the three ITT Defendants have each filed a Third Party Complaint (Doc. # 77 and Doc. # 91), each claiming that if they be deemed liable to the Plaintiff, then the Third Party Defendants Ackerman-Chacco (Ackerman), the authorized distributor of the power tool utilized by the Plaintiff, Federal Flooring Company (Federal), the employer of the Plaintiff at the time of the incident, and Rodgers Construction Company (Rodgers), the general contractor which contracted with Federal to do part of the job on which the Plaintiff was working at the time of the incident, are liable for all or a part of said damages to the said Defendants-Third Party Plaintiffs.

The captioned cause is presently before this Court on a number of motions. The motions, the Court’s rulings thereon and, whenever deemed necessary, the reasoning behind said rulings, follow:

1. The Motion of the Plaintiff, seeking an Order of the Court, in limine, to exclude the testimony of Defendants’ lay witnesses, for the reason that Defendants have violated this Court’s Order of March 5, 1984 (Doc. # 81), filed December 3, 1984, is deemed by this Court to be moot and same will, therefore, not be ruled upon.

The Plaintiff’s contention is that the Defendants have failed to comply with the letter and spirit of the above Order in that said Defendants identified categories rather than names of lay witnesses, who could not have been deposed prior to the discovery cutoff deadline of November 12, 1984. Both the discovery cutoff deadline and the then trial date of February 11, 1985, have passed. Following the conclusion of the settlement conference, the date, time and place for which will be set forth below, should a new trial setting be deemed necessary, the Court will, once again, set forth a date by which the parties must identify their lay witnesses. This Court would state to the Defendants, however, that names of lay witnesses, rather than identification by category, is required. It is somewhat difficult to depose a category, rather than a live witness. Should any of the parties fail to abide by said lay witness identification date, said party will not be able to utilize the testimony of said lay witnesses at trial.

2. The Motion of the Third Party Defendant, Federal Flooring Company (Doc. # 83), seeking an Order of the Court dismissing the Third Party Complaint of the ITT Defendants and any cross claims against it for the reason that the Third Party Complaint and Cross Claims fail to state claims upon which relief may be granted, because of the alleged “absolute immunity” against suit accorded an employer under Ohio Workers Compensation laws, is deemed by this Court to be not well taken and same is, therefore, overruled in its entirety.

In ruling as aforesaid, this Court adopts the reasoning and citations of authority set forth in the memorandum of the ITT Defendants filed in opposition to said motion (Doc. # 95). This Court agrees with the Defendants-Third Party Plaintiffs that the statutory and case law authority cited by the moving party is not controlling herein, because said authority deals with simple negligence actions, rather than, as herein, a claim sounding in intentional tort and in breach of an implied contract of indemnification. This Court has no difficulty in deferring to the Ohio law that, with reference to purely negligence claims, an injured party’s election to proceed under the State Workers Compensation laws would effectively prohibit not only a suit against his employer or a third party, but also a third party action in indemnification against the injured party’s employer. However, the Ohio Supreme Court decision in Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), allowed an injured employee to file an action for an “intentional tort” against his employer (as an alternative to proceeding against the employer under the State Workers Compensation laws). Therefore, that aspect of the Third Party Plaintiffs’ claim against Federal Flooring which can reasonably be interpreted as setting forth a claim for an intentional tort is not barred, pursuant to the authority in Blankenship. With reference to that part of the Third Party Plaintiffs’ claim against Federal Flooring that is based upon an alleged breach of an implied contract of indemnification — a breach of its implied contract with the manufacturer and distributor of the powder-actuated tool, by failing to seek and to provide proper training and licensing for the Plaintiff, a workman who might reasonably be expected to use said tool, no Ohio case law is extant which deals with such a claim; no Ohio court or, for that matter, no federal court sitting in Ohio and applying Ohio law having addressed the issue of whether a third party (sued by the injured employee) can sue an employer on an intentional tort theory, where the employer is participating in the Workers Compensation Plan, regardless of whether the employee has elected to sue the employer on a common law theory of intentional tort or to accept the insurance benefits of the Workers Compensation Program. Moreover, with respect to election of remedies, the Ohio Supreme Court has held in Jones v. VIP Development Company, 15 Ohio St.3d 90, 472 N.E.2d 1046 (1984), that the receipt of Workers Compensation Benefits does not preclude an employee or his representative from pursuing a common law action for damages against his employer for an intentional tort. Therefore, the election of remedies argument, at least with respect to an intentional tort, appears to have been resolved in a way favorable to the Defendant-Third Party Plaintiff. In Seiffert v. Allis-Chalmers Corp., No. 84-1393, 15 Ohio St.3d Adv.Sh. No. 3 at A-3 (1984), the Ohio Supreme Court, reversed and remanded upon the authority of Jones, and allowed the Defendants, a manufacturer and a distributor of a forklift truck that allegedly injured the plaintiff, to file and maintain a third party action against the plaintiff’s employer. This case did not deal with the employer’s election of remedies. However, in view of the proclivity of the Ohio Supreme Court, of late, to widen, rather than to narrow an injured plaintiff’s access to the court system, this Court concludes that, when and if presented with a similar legal issue, the Ohio Supreme Court will expand upon the Blankenship doctrine by allowing a third party, which has been sued by a plaintiff-employee for injuries which can arguably be denominated as intentional, to file an action for indemnification against the employer of the injured employee.

The allegations in the ITT Defendants’ Third Party Complaint, as directed against Federal Flooring (Doc. # 77, ¶¶ 13-20), are arguably, at least in part, on the borderline between a claim of negligence and a claim of an intentional tort. Should discovery “flush out” the allegations of the Third Party Complaint and show that said claims against the Third Party Defendant sound in negligence, rather than in an intentional tort, the moving Third Party Defendant may renew its Motion to Dismiss. Should affidavits be attached to said motion, the Court will treat same as one for summary judgment.

Finally, the Plaintiff-Employee is not an agent or representative of the ITT Defendants. Accordingly, he is not authorized to act in such a fashion as to bind said Defendants. It is equally obvious that ITT has made no such election (of remedies) between suing Federal Flooring and accepting Workers Compensation benefits. This Court does not believe that the employee’s election should have any preclusive effect on the ITT Defendants’ right to sue the Plaintiff’s employer for indemnification.

3. The Motion of the Third Party Defendant, Ackerman-Chacco, seeking an Order of the Court, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(2), dismissing the Third Party Complaint of the ITT Defendants, for the reason of this Court’s lack of jurisdiction over the subject matter of the Third Party Complaint and lack of in personam jurisdiction over said Third Party Defendant (Doc. #84), filed December 5, 1984, is deemed by this Court to be not well taken and same is, therefore, overruled in its entirety.

In ruling as aforesaid, this Court relies upon the reasoning and citations of authority contained in the memorandum of the Defendants-Third Party Plaintiffs, filed in opposition to said motion. Doc. # 95 at 13, et seq. This Court has jurisdiction over the Third Party Complaint, by reason of its ancillary jurisdiction. Moreover, it is well settled that there need be no independent jurisdictional basis for the third party claim against Ackerman-Chacco, as long as diversity of citizenship jurisdiction existed between the original parties. Since, in the captioned cause, the Third Party Complaint under Fed.R.Civ.P. 14 arose out of the subject matter of the original action and involves the same persons and issues, said Third Party Complaint is ancillary to the original action. In such cases, if the court has jurisdiction to entertain the original action (such as diversity jurisdiction between the original parties), no independent basis of jurisdiction for the cross claim or third party claim need be alleged or proved. In short, the fact that Ackerman-Chacco is a resident of the same state as the Plaintiff herein would not defeat this Court’s jurisdiction over the Third Party Complaint. Lasa, etc. v. Alexander, 414 F.2d 143 (6th Cir.1969) at 146. Accord Huggins v. Graves, 337 F.2d 486 (6th Cir.1964); Stemler v. Burke, 344 F.2d 393 (6th Cir.1965), both of which cases stand for the proposition that where requisite diversity of citizenship jurisdiction existed between plaintiffs and defendants in personal injury actions consolidated for trial, independent grounds of jurisdiction did not have to exist between plaintiffs and third party defendants, against whom plaintiffs were not seeking relief, or between cross plaintiffs and cross defendants. In short, it is not necessary that an independent basis of jurisdiction exists between the original defendants and a third party defendant, in third party procedure, in order for original defendants to recover a judgment against third party defendants.

4.-8. The Motion of the Third Party Defendant, Ackerman-Chacco, seeking an Order of the Court continuing the trial date of February 11, 1985 (Doc. # 85), filed December 5,1984, and similar motions filed by the Third Party Defendant, Rodgers Construction, Inc. (Doc. # 86), on December 7, 1984; by Third Party Defendant, Federal Flooring Company (Doc. # 89), filed December 17, 1984; by Defendants-Third Party Plaintiffs, ITT, et al. (Doc. # 87), filed December 10, 1984 and by Defendant and Third Party Plaintiff, Omark Industries, Inc. (Doc. # 90), filed December 26, 1984, are each deemed to be moot and same will, therefore, not be ruled upon, for the reason that the then-scheduled trial date of February 11, 1985, has come and gone.

Following the settlement conference, the date, time and place for which will be set below, if necessary, the Court will convene a scheduling conference at which a new trial and other necessary dates will be established.

9. The Plaintiff’s Motion for Separate Trials with respect to the third party claims filed by Defendants (Doc. # 88), filed December 14,1984, is deemed by this Court to be not well taken and same is, therefore, overruled in its entirety.

The reason behind the filing of such a motion has now disappeared, to wit: the previously set trial date of February 11, 1985, has been continued. In addition, in ruling as aforesaid, since the impetus behind the Plaintiff’s motion has now been mooted, this Court can conceive of no reason, as a matter of law, fact or equity, why the trial of the Complaint and the Third Party Complaints cannot be tried together. Indeed, even assuming that Ohio law would allow for bifurcation of the type requested by the Plaintiff, duplicate trials, under the factual scenario herein, would be wasteful of the time and resources of the Court, counsel and the litigants.

10. The Plaintiff’s Motion, seeking an Order of the Court allowing him to supplement his Motion in Limine concerning the testimony of Defendants’ experts and/or Motion to Compel the production of experts’ reports (Doc. # 96), filed January 8, 1985, to the extent that same remains relevant, is deemed by this Court to be well taken and same is, therefore, sustained in its entirety. The Plaintiff’s Supplemental Brief must be filed, by the Office, of the Clerk of Courts, and docketed accordingly, instanter.

11. The Motion of the Third Party Defendant, Ackerman-Chacco, seeking an Order of this Court, pursuant to Fed.R.Civ.P. 12(b)(1) and (2), dismissing the Third Party Complaint of Omark Industries (Doc. # 99), filed January 14, 1985, is deemed by this Court to be not well taken and same is, therefore, overruled in its entirety.

In ruling as aforesaid, this Court notes that this motion is identical to the one filed by the moving Third Party Defendant, seeking an Order of the Court dismissing the Third Party Complaint of the Defendants-Third Party Plaintiffs, ITT (Doc. # 84). In overruling this motion, the Court adopts the same reasoning and citations of authority set forth above in overruling a similar motion filed by said Third Party Defendant, said earlier motion directed against the Third Party Complaint of the Defendants-Third Party Plaintiffs, ITT.

12. The Motion of the Third Party Defendant, Federal Flooring Company, seeking an Order of the Court dismissing the Third Party Complaint of Defendant-Third Party Plaintiff, Omark Industries, (Doc. # 101), filed January 25, 1985, based upon the same reasoning and citations of authority set forth in its memorandum filed in support of a similar motion directed to the Third Party Complaint of the Defendants-Third Party Plaintiffs, ITT (Doc. #83), is deemed by this Court to be not well taken and same is, therefore, overruled, based upon the reasoning and citations of authority set forth by this Court in overruling said earlier motion.

13. The Motion of the Third Party Defendant, Rodgers Construction, Inc., seeking an Order of the Court, pursuant to Fed.R.Civ.P. 12(b)(1) and (2), dismissing the Third Party Complaint of Omark Industries, Inc., on the ground that the Court lacks subject matter jurisdiction (Doc. # 103), filed February 4, 1985, based upon the same reasoning stated in the memorandum in support of the Motion to Dismiss filed by Defendant Ackerman-Chacco (Docs. # 84 and # 99), is deemed by this Court to be not well taken and same is, therefore, overruled in its entirety. In so ruling, this Court adopts the same reasoning and citations of authority set forth in its ruling on the aforesaid motions to dismiss of the Third Party Defendant, Ackerman-Chacco, supra.

14. The Motion of the Plaintiff, seeking an Order of the Court granting a protective order with respect to the depositions of Robert J. Stalla, Jerry E. Flexman, William C. Cruice and Lou Barbe, which said depositions were set for March 5, 6 and 7, 1985 (Doc. # 109), filed February 25, 1985, is deemed by this Court to be moot, for the reason that the aforesaid deposition dates have passed. Accordingly, said motion will not be ruled upon.

In ruling as aforesaid, this Court notes that while the previously discovery deadline was November 12, 1984, said discovery deadline follows the setting of the trial, itself. Since the trial date of February 11, 1985, has been continued, a new discovery cutoff deadline must be set.

Having ruled on all outstanding motions in the captioned cause, it is the Order of the Court that a settlement conference be convened at 6 p.m. on Tuesday, April 23, 1985, in this Court’s Chambers, Ninth Floor, 200 West Second Street, Dayton, Ohio. Not only must all counsel be present, but said counsel should also come prepared with settlement authority and with telephone numbers of their clients at which they might be reached during said settlement conference.

Should the settlement conference not succeed in bringing about a settlement of this case, the Court will immediately set a new trial date and other dates for discovery purposes. This Court is willing to place this case ahead of any other on its docket (save and excepting criminal cases), in order that the matter be tried as quickly as may be practicable. Counsel should make the determination as to whether they wish the captioned cause tried before the action due to begin in state court during the month of August, 1985.


author: HOLSCHUH, District Judge.

text:
    Ronald E. PARKINSON, Plaintiff, v. UNITED STATES of America, et al., Defendants.
    No. C-2-83-1393.
    United States District Court, S.D. Ohio, E.D.
    April 22, 1985.
    Ronald E. Parkinson, pro se.
    Albert Richter, Asst. U.S. Atty., S.D. Ohio, and Seth Heald, Trial Atty. Tax Div. of Dept, of Justice, Washington, D.C., for government.
   MEMORANDUM AND ORDER

HOLSCHUH, District Judge.

Plaintiff Ronald E. Parkinson brings this action against the United States alleging that the Internal Revenue Service unlawfully assessed him a $500 frivolous return penalty and failed to refund him $3,723 overpaid on his 1982 income tax return. This matter is before the Court on defendants’ motion to dismiss or, in the alternative, for summary judgment.

Plaintiff Parkinson signed his 1982 income tax return, but he typed in above and below the jurat the following language: “By filling out this form, and/or the attached forms, and/or by signing this form do I waver [sic] any of my rights under the Constitution of the United States of America.” The copy of the return submitted by defendants also has the jurat lined out. Plaintiff asserts that the jurat is not lined out on the copy of the return he submitted to the Court (although there are lines visible on the xerox copy plaintiff submitted running through some words of the jurat), and he argues that “there exist[s] a real possibility that either someone within the IRS, or the U.S. Attorney’s Office, or plaintiff himself struck the form’s jurat.” Plaintiff’s January 30, 1984 Supplemental Motion at p. 12.

On May 2, 1983 the IRS assessed plaintiff a $500 penalty under 26 U.S.C. § 6702 for filing a frivolous federal income tax return. On May 12, 1983 an IRS employee sent plaintiff a letter offering him the opportunity to sign the jurat. Plaintiff’s January 30,1984 Supplemental Motion, Appendix D. Plaintiff did not execute the jurat; instead, he tendered a check for $75 (15% of the $500 penalty) and filed a claim for refund of the $500 penalty and the $3,723.00 he allegedly overpaid on his 1982 income taxes. On July 14, 1983 plaintiff received a July 12, 1983 notice of disallowance of his claim. Amended Complaint, ¶ 18. Plaintiff then filed this suit on August 12, 1983.

Plaintiff contends that his 1982 income tax return is not frivolous. He also complains that defendants did not answer his letters and did not adequately explain the basis for their actions. Finally, he argues that he was denied due process of law because the IRS did not hold a hearing to determine whether his return in fact violated 26 U.S.C. § 6702.

Although the complaint lists a number of jurisdictional statutes, it is clear that the gravamen of plaintiff’s complaint is that the IRS acted unconstitutionally and illegally when it refused to accept his 1982 return and assessed a penalty. Thus, the Court has jurisdiction over the claim against the United States under 28 U.S.C. § 1346. See, 26 U.S.C. § 6703(c)(2).

The penalty was assessed under 26 U.S.C. § 6702(a) which provides that if:

(1) any individual files what purports to be a return ... but which—
(A) does not contain information on which the substantial correctness of the self-assessment may be judged ... and
(2) the conduct referred to in paragraph (1) is due to—
(A) a position which is frivolous, or
(B) a desire (which appears on the purported return) to delay or impede the administration of Federal income tax laws,
then such individual shall pay a penalty of $500.

Plaintiff’s complaint has attached as Exhibit A the signature page of plaintiff’s 1982 return which clearly shows the jurat surrounded by the typed language. “By filling out this form, and/or the attached forms, and/or by signing this form do I waver [sic] any of my rights under the Constitution of the United States of America.” As noted earlier, lines appear on some but not all words of the jurat itself on the xerox copy submitted with the complaint. On the copy submitted by the defendants the entire jurat is lined out. The affidavit of Seth G. Heald, Trial Attorney, Tax Division, Department of Justice, the person who has custody of the administrative file of the Internal Revenue Service, which contains plaintiff’s 1982 return, states unequivocally that the attached copy (showing the entire jurat lined out) “is a true and correct copy of the 1982 federal income tax return filed by the plaintiff with the Internal Revenue Service.” Plaintiff implies that someone in the Internal Revenue Service or the United States Attorney’s office may have drawn the lines through the entire jurat.

The complaint itself was not verified. The words following plaintiff’s signature on the complaint — “Subscribed and Sworn to before me this_day of August, 1983.” —were themselves lined out, presumably by plaintiff, before the complaint was filed. Instead of a specific denial that he had lined out the entire jurat, plaintiff’s response to the Heald affidavit was an affidavit in which plaintiff included the statement “that all documents, and exhibits, filed in the above stated action, are either true and accurate copies of the original documents, or are true and accurate copies of my file copies, which are true and accurate copies of the original documents, as sent, or filed, with this Honorable Court, or with the Department of the Treasury— IRS, or with the other named defendants.”

The disjunctive, ambiguous language of plaintiff’s affidavit hardly rises to the level of a countervailing affidavit on the issue of whether plaintiff did strike out the entire jurat on the original return before mailing it to the Internal Revenue Service. Even if plaintiff’s affidavit could be construed or interpreted as a sworn denial that he did not line out the jurat as shown on the return attached to the Heald affidavit (an earlier affidavit objecting to the Magistrate’s discovery order apparently contained such a denial), it is undisputed that plaintiff attempted to assert some qualification to his signature to the jurat by his addition of words around the jurat itself, regardless of whether, in addition, he lined out the entire jurat. This is clear not only from the form itself but from plaintiff’s own complaint in which he stated that by adding the language plaintiff thereby negated the jurisdiction of the Internal Revenue Service over the Plaintiff under equity law, but not under substantive law.” Whatever plaintiff may have meant by that, the complaint itself shows plaintiff’s purpose was to somehow restrict or qualify the legal significance of his signature on the return;

Federal income tax liability is self-reported. A declaration under penalty of perjury is necessary to assure the correctness of the return information. Any alteration of the jurat throws into question the correctness of the return information and impedes the administration of the federal income tax laws.

Plaintiff was afforded an opportunity to sign an unaltered jurat but failed to do so. His assertion that he has a constitutional right to alter the jurat is baseless. First, plaintiff has a legal duty to file an income tax return, and he has no constitutional right not to. Second, he has no right to include incorrect information in the return. The jurat verifies that return information is correct. Consequently, plaintiff has no legal or constitutional right to alter the jurat in any way. He must sign the declaration under penalty of perjury without qualification. If he has other communications he wants to make with the IRS, he should make them on a separate document.

Since it is uncontroverted that the jurat was altered and any alteration of the jurat impedes the administration of the' federal income tax laws, the IRS properly rejected it as frivolous and imposed a $500 penalty under 26 U.S.C. § 6702(a). Plaintiff has no claim for overpaid income tax because he has not filed a return verified by a declaration under penalty of perjury. Treas.Reg. § 301.64202-2(b)(l). 26 U.S.C. § 7422(a).

WHEREUPON, the Court HOLDS that defendants’ motion for summary judgment is meritorious; and, therefore, it is GRANTED. Accordingly, plaintiff’s request for a memorandum in support of the Magistrate’s Order and plaintiff’s motion for reconsideration and objection to the Magistrate’s Order are MOOT and hereby withdrawn from the consideration of this Court. Plaintiff’s other filings styled as “motions” are actually memoranda contra defendants’ motion for summary judgment. This action is hereby DISMISSED. The Clerk of Court shall enter JUDGMENT for defendants.

IT IS SO ORDERED.


author: FRANCIS J. BOYLE, Chief Judge.

text:
    UNITED STATES of America v. Gerard T. OUIMETTE.
    Crim. No. 85-014B.
    United States District Court, D. Rhode Island.
    May 17, 1985.

      Edwin J. Gale, Sp. Atty., U.S. Dept, of Justice, Providence, R.I., for U.S.
    Paul J. DiMaio, Providence, R.I., William M. Kunstler, New York City, for defendant.
   OPINION

FRANCIS J. BOYLE, Chief Judge.

Pending a new trial, Defendant has moved that this Court (1) disqualify itself and any other federal district judge who knows of the dangerous special offender proceeding which took place during the original trial, as well as alternatively, (2) dismiss the superceding indictment against the Defendant, or (3) issue a declaratory judgment precluding enhancement of Defendant’s sentence if he is convicted on retrial, or (4) change the venue of trial.

I

Defendant Ouimette was indicted on September 29, 1983 for violating two federal laws: 18 U.S.C. § 922(h), which makes it unlawful for a convicted felon to receive a firearm which has been transported in interstate commerce, and 18 U.S.C. § 922(k), which makes it unlawful for a person knowingly to receive in interstate commerce any firearm which has had its serial number removed, obliterated or altered.

Prior to the trial, on November 21, 1983, the Government filed a notice with this judge that it believed the Defendant to be a dangerous special offender under the provisions of 18 U.S.C. § 3575 (1982). That statute provides for an increased sentence for such dangerous special offenders. See id. In compliance with the mandates of section 3575(a), the notice was not disclosed to the trial judge until after the verdict was received. The Defendant was found guilty on both counts of the indictment by a jury on February 10, 1984.

The trial judge then held a hearing on the issue of whether Defendant Ouimette was a dangerous special offender. On June 28, 1984 the trial judge found Ouimette to be a dangerous special offender, and sentenced him to nine years imprisonment on each of the two counts, to run consecutively.

On July 5, 1984 the Defendant appealed his conviction on the ground that both the exclusion of certain defense testimony, and the failure to sever the two counts of the indictment was improper. See United States v. Ouimette, 753 F.2d 188, 189 (1st Cir.1985). The defendant also challenged the sentencing procedure, claiming, inter alia, that the dangerous special offender sentence should be vacated because the Government did not follow the notice requirements of the statute. Id. at 193. The First Circuit Court of Appeals reversed the District Court’s evidentiary ruling, and remanded the case for a new trial. Id. at 194. The Circuit Court did not rule on the dangerous special offender issue, merely stating “We assume that the government will carefully follow the notice requirements of the Dangerous Special Offender Statute the next time around so there is no need to consider this issue.” Id.

On remand, the case was randomly assigned to this judge. On March 21, 1985 a federal grand jury returned a two-count indictment of the Defendant identical to the original indictment upon which the Defendant was tried and convicted. The original indictment then was dismissed on March 22, 1985.

Defendant Ouimette now moves that this Court disqualify itself as well as any other federal district judge who knows that the Government filed a dangerous special offender notice prior to the original trial of this ease. He contends that 18 U.S.C. § 3575 requires that a judge who presides over any aspect of a criminal prosecution have no knowledge of whether or not a dangerous special offender notice was filed against a defendant. He argues that it will be obvious to any judge who knows of the prior notice that a similar notice will be filed in the instant case.

Furthermore, Defendant has moved to dismiss the superceding indictment on the basis that he cannot obtain a fair trial. He reasons that since the dangerous special offender proceedings in the original trial are referred to by the First Circuit Court of Appeals in its opinion, which has been published in the Federal Reporter 2d series, every United States District Judge potentially is privy to this information. Thus, in the Defendant’s view, he will be subject to possible prejudice at a trial presided over by any district judge.

If his motion to dismiss is denied, the Defendant has requested relief in the alternative. He asks the Court to issue a declaratory judgment that he cannot be sentenced under 18 U.S.C. § 3575 as a dangerous special offender if he is convicted after a trial on the superceding indictment. The alternative relief for which the Defendant has moved, if his declaratory judgment motion fails, is that the venue of the trial be changed to a district preferably outside the First Circuit and that a judge in that district preside over his trial. Defendant reasons that a trial judge within the First Circuit is more likely to be aware of the prior dangerous special offender proceeding than a district judge in another circuit because copies of all First Circuit opinions are routinely circulated to all District Judges in the First Circuit.

The Government has objected to all of the Defendant’s motions, with a limited exception. The Government does agree with Defendant's contention that this Judge should not preside over Defendant’s new trial, since this Judge received the dangerous special offender notice which was filed before the initial trial. It notes, however, that since Defendant Ouimette has been reindicted, none of the prior proceedings pursuant to section 3575 apply here. It contends that a judge cannot know whether a dangerous special offender notice will be, or has been, filed in the instant case.

II

Section 3575 of Title 18 empowers a judge to sentence a dangerous special offender to up to twenty-five years of imprisonment. A “special offender” is defined as a defendant who has committed a federal felony and who previously has been convicted, in either federal, state or territorial courts, of two or more felonies committed on different occasions, with the Defendant having been imprisoned for one such felony. 18 U.S.C. § 3575(e)(1). The defendant has to have committed the federal felony within five years of being released from imprisonment for a prior felony, or of committing a prior felony. Id. Such a special offender is considered “dangerous” if a longer period of confinement than the law provides for the federal felony just committed is required in order to protect the public from further criminal conduct by that defendant. Id. at § 3575(f).

In order for a defendant to be sentenced as a dangerous special offender, the prosecutor must sign and file with the court, a reasonable time before trial, a notice setting forth the prosecutor’s belief that the defendant is a dangerous special offender and the basis for this belief (hereinafter referred to as a “dangerous special offender notice”). Id. at § 3575(a). The statute provides that:

In no case shall the fact that the defendant is alleged to be a dangerous special offender be an issue upon the trial of such felony, be disclosed to the jury, or be disclosed before any plea of guilty or nolo contendere or verdict or finding of guilty to the presiding judge without the consent of the parties.

Id. The rationale for prohibiting the disclosure of the notice is “to assure that the filing of the notice will not prejudice the jury or the court against the defendant before the determination of his guilt or innocence.” H.R.Rep. No. 1549, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Ad.News 4007, 4037.

In the cases which have arisen since the passage of section 3575, the courts invariably have held that where the prosecution informs the presiding judge, without the defense’s consent, that it has filed a dangerous special offender notice, the defendant cannot be given an enhanced sentence. United States v. Bailey, 537 F.2d 845, 849 (5th Cir.1976) (oral representation by prosecution to presiding judge that notice filed), cert. denied, 429 U.S. 1051, 97 S.Ct. 764, 50 L.Ed.2d 767 (1977); United States v. Tramunti, 377 F.Supp. 6, 10 (S.D.N.Y.1974) (filing of notice with presiding judge pursuant to similar statute providing for enhanced sentences for certain drug offenders), modified on other grounds, 513 F.2d 1087 (2d Cir.1975).

There have been two rulings to date where a court has held that a trial judge’s knowledge of the filing of a dangerous special offender notice in the case will not preclude the imposition of an enhanced sentence, both in the same case. In the first, the disclosure of the notice was made by the defendant’s counsel. United States v. White, 706 F.2d 506, 510 (5th Cir.1983) (dicta). The second instance, which involved an appeal of issues arising during the retrial of the first case, is the only reported case which specifically has addressed the issue before this Court: whether a defendant who successfully appeals his conviction and obtains a new trial, after being sentenced as a dangerous special offender at his original trial, can be noticed and sentenced as a dangerous special offender in the second trial, and if so, under what conditions. See United States v. White, 748 F.2d 257, 259-60 (5th Cir.1984). There the Fifth Circuit Court of Appeals held that a judge who was aware, from reading an appellate court opinion in the case, that a defendant had received an enhanced sentence as a dangerous special offender in the first trial may preside over the defendant’s second trial. Id. at 259-60. The court also held that, upon the defendant’s conviction, the judge may impose an enhanced sentence upon him. Id. at 260.

In United States v. White the defendant’s conviction was reversed on appeal because of a conflict of interest between the defendant and his counsel which had not been knowingly and voluntarily waived. 748 F.2d at 258. The case was retried in a jury-waived trial before a second judge in the same district in which the first trial had taken place. Id. Although the government filed a dangerous special offender notice prior to the second trial, the court was not specifically informed of the fact. Id. at 259. This judge was aware, from reading the appellate court opinion, that the defendant had been found to be a dangerous special offender and had received an enhanced sentence after the first trial. Id. at 258-59. The second trial resulted in a conviction; the court subsequently found the defendant to be a dangerous special offender and imposed an enhanced sentence upon him. Id. at 259.

The defendant appealed his conviction, claiming he was deprived of his right to a fair trial because the judge in the second trial was aware he had been sentenced as a dangerous special offender in the prior trial. Id. at 259. The Court of Appeals for the Fifth Circuit held the defendant was not entitled to relief because the context of section 3575 makes it clear that the prohibition is against disclosure “by or at the behest of the government.” Id. The court held the statute’s mandate was not violated when the trial court learned of the government’s intent to seek enhancement not from the government, but from a routine reading of the Fifth Circuit opinions. Id. The court reasoned that if the court which heard the second trial could not impose an enhanced sentence upon the defendant, then no trial court within the confines of the Fifth Circuit which habitually read the Fifth Circuit Court’s opinions could impose such a sentence. Id. at 260. It held that a defendant should not be immune from an enhanced sentence merely because the appellate court published an opinion granting him a new trial. Id.

Ill

This Court first will address Defendant Ouimette’s disqualification motion as it relates to disqualifying this Court from hearing the motions before it at this time.

The Court declines to disqualify itself from deciding these motions for two reasons. The first is that the statute at issue, 18 U.S.C. § 3575 (1982), does not prevent even a judge with knowledge of an ongoing dangerous special offender proceeding from hearing pretrial motions in the case. The language which prefaces the statutory prohibition against disclosure of the dangerous special offender allegation limits the effect of the statute to those circumstances occurring “upon the trial of such felony.” Id. at § 3575(a) (emphasis added). Congress demonstrated that it was concerned only with the knowledge of the judge who presides over the actual trial of the felony. Thus the statute’s mandates certainly do not preclude this Court, who has no knowledge of whether a new dangerous special offender notice has been filed, from considering these pretrial motions.

Secondly, a disqualification from deciding the instant motions would serve no useful purpose. The crux of Defendant’s argument in making these motions is that he is entitled to relief because of the dangerous special offender proceeding which occurred during his first trial and presumed judicial knowledge of the proceeding. In order to argue the instant motions as currently framed, the Defendant will have to reveal to any judge who hears these motions that the Government filed a dangerous special offender notice before his first trial and that he was found to be such an offender. Hence, any judge must be apprised of the same facts which the Defendant argues mandate disqualification of this Court.

IV

In considering the remaining motions the Court notes, from the outset, that their filing may be premature. Arguably, several prerequisites must be met before an issue is presented as to whether the Defendant can be properly convicted and an enhanced sentence imposed upon him after a trial presided over by a judge with knowledge of the prior dangerous special offender proceeding. The prerequisites are that (1) the Defendant must be convicted, after trial, upon a felony charge; (2) the Government must have filed a timely and adequate dangerous special offender notice prior to the trial; (3) the trial judge must determine that the Defendant is a dangerous special offender; and (4) the trial judge must impose an enhanced sentence upon the Defendant. This Court cannot unquestioningly assume, no matter how likely the fact, that because the Government filed a dangerous special offender notice before the initial trial, a second notice also will be filed before a new trial. While the likelihood of a second filing cannot be minimized, whether it is an accomplished fact is not, and cannot, be known by the Court at this time.

The Court will address together Defendant’s motions that the Court either dismiss the superceding indictment or issue a declaratory judgment precluding enhancement of Defendant’s sentence if he is convicted upon retrial. The Defendant claims that the provision of 18 U.S.C. § 3575 which precludes the presiding trial judge from knowing of a dangerous special offender allegation until after the jury reaches a guilty verdict falls within the bounds of the constitutional right to due process, and that as a constitutional right, it cannot be waived. He thus argues that since he cannot be guaranteed a judge without knowledge of the prior dangerous special offender proceeding, the indictment must be dismissed, or at a minimum, enhancement of any sentence he might receive must be precluded.

The Defendant’s contentions are flawed. The right to concealment of the dangerous special offender allegation is not based upon the constitutional guarantee to due process. Rather, this right is a statutory right created by Congress in 1970 as part of a scheme to allow for increased sentences for dangerous special offenders. See H.R.Rep. No. 1549, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4036.

The right delineated by the statute is a limited one. It is limited in time, because in a jury case the right exists only until a verdict of guilty is reached. See 18 U.S.C. § 3575(a). Moreover, the very existence of the right is limited by the fact it can be waived; if both a defendant and the government agree, the dangerous special offender allegation can be revealed to the presiding judge either before or during trial. See id.

The fact that a defendant has a right to keep the filing of a dangerous special offender notice secret from the presiding judge does not mean that a judge cannot anticipate such a filing. Since a defendant must have been convicted of two prior felonies in order to qualify as a dangerous special offender, a judge who knows the nature of a defendant’s prior criminal record may well be able to predict whether the government has filed such a notice. There is neither a constitutional nor any generalized statutory prohibition against a judge who has knowledge of a criminal defendant’s background from earlier judicial proceedings presiding over that defendant’s trial. See United States v. Cowden, 545 F.2d 257, 265-66 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977); Smith v. United States, 360 F.2d 590, 592 (5th Cir.1966); Cox v. United States, 309 F.2d 614, 619-20 (8th Cir.1962). “[T]he judicial system could not function if judges could deal but once in their lifetime with a given defendant.” United States v. Cowden, 545 F.2d at 266.

The judge may learn of a defendant’s prior criminal record from a variety of sources. For instance, when a review is requested of a magistrate’s bail decision during which the judge considers the defendant’s prior criminal record, the judge obviously becomes aware of the contents of that record. Furthermore, when a motion in limine is made by a defendant in an attempt to prevent the introduction of any prior convictions in the event the defendant chooses to testify, the judge is informed of the convictions which the defendant is attempting to exclude. In addition, if a defendant decides not to testify in a situation where it apparently is appropriate for such testimony, a judge can surmise, among other possibilities, that the choice was made to avoid the revelation of the defendant’s pri- or record. Finally, when the courtroom security is tighter than usual during the trial, the judge easily can deduce that the defendant has been found to be dangerous in the past.

In the instant case, this Court is fully aware of the fact that Defendant Ouimette has a prior criminal record, and of that record’s nature, from several sources. This Court presided over a trial, in November of 1982, where Defendant Ouimette was charged with assaulting a federal officer. United States v. Ouimette, C.R. No. 82-0063. In the course of the trial, the Court was requested to rule upon the admissibility of Defendant’s prior convictions. This ruling was made only after reviewing the pertinent portions of Defendant’s criminal record.

Then in September of 1983 the Court participated in the trial of Ouimette v. E.F. Hutton & Company, C.A. No. 80-0323. That civil suit concerned the allegedly illegal sale of stock. There Ouimette moved in limine that E.F. Hutton be prevented from questioning Ouimette as to his prior convictions or making any reference to those convictions. As a result, the Court heard arguments upon, as well as reviewed, those convictions which the defendant proposed to use at trial.

In addition, when Defendant Ouimette was denied bail by Magistrate Frederick R. DeCesaris once the Defendant’s conviction was reversed by the First Circuit Court of Appeals, the Defendant asked that this denial be reviewed by this Court. The Court reviewed the Defendant’s prior criminal record before finding the Defendant to be a danger to the community and denying him bail.

As the Defendant’s past offenses are numerous, and range in severity from armed robbery to assault upon a policeman to conspiracy to murder, only the most naive would not reach the conclusion that a dangerous special offender proceeding most likely would be pursued by the prosecution in this case.

Even if, as Defendant claims, the right to a trial presided at by a judge who knows nothing of the prior dangerous special offender proceeding rises to constitutional dimensions, an argument upon which this Court remains unconvinced, “the Constitution does not ... always forbid requiring him to choose” between rights. McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971) (defendant’s constitutional right to due process not violated by requirement that if he chose to assert his right against self-incrimination by remaining silent on the issue of guilt at a unitary trial, he surrendered any chance to plead his case on the issue of punishment). “The criminal process ... is replete with situations requiring ‘the making of difficult judgments’ as to which course to follow,” id. (citation omitted), and this is one of them.

In the case before the Court, the Defendant has waived his statutory protection by challenging his sentencing as a dangerous special offender in an appeal to the First Circuit. The Defendant cannot now claim that because the appellate court complied with his request that it address the validity of his dangerous special offender status, the Government is precluded from reindicting and prosecuting him.

Such a preclusion as Defendant seeks would have broad ramifications. It would mean that any dangerous special offender who pursues an appeal based upon both trial error and the dangerous special offender finding, and whose appeal has sufficient merit to warrant a reversal and remand by the appellate court, could no longer be prosecuted to the full extent of federal law for that offense. If the relief given this Defendant is a dismissal of the indictment, then no new trial could take place; if the desired injunctive relief was granted, then this Defendant could not be sentenced as a dangerous special offender.

When Congress provided a mechanism for imposing an enhanced sentence upon repeat offenders, it hardly could have been condoning such a outcome. The Defendant is entitled to the protections of section 3575(a) only so long as he keeps the dangerous special offender proceeding secret; once the Defendant assists in publicizing the fact that such a proceeding took place, he cannot be allowed to use that publication to prevent his prosecution. Cf. United States v. White, 706 F.2d 506, 510 (5th Cir.1983).

V

The final matter upon which the Court must rule is the Defendant’s motions that this Court disqualify itself and any other federal district judge with knowledge of the prior dangerous special offender proceeding from presiding over the new trial of this case, and that this action’s venue be changed.

Section 3575(a) makes no mention of the procedure which is to be followed if a new trial is ordered after a defendant has been sentenced as a dangerous special offender in the initial trial. Congress has mandated, though, that the presiding judge be unaware of whether a dangerous special offender notice has been filed in the case before the judge until after a jury verdict is reached. 18 U.S.C. § 3575(a) (1982). Moreover, as already indicated, it is reasonable to expect that a defendant who was noticed and found to be a dangerous special offender in the first trial, and sentenced on that basis also will be noticed as one before the second trial. In light of these findings, and the further consideration that both the Defendant and the Government have so requested, this Court will disqualify itself from presiding over the trial of the case. The circumstances of this matter are so completely unique that recusal is appropriate. The perception of justice is as important as the existence of justice and although this Court is satisfied no injustice would result, failure to comply with Congressional policy might be perceived as injustice.

In what well may be an overabundance of caution, because of the lack of precedent in this Circuit this Court will deviate from the path marked by the Fifth Circuit in United States v. White, 748 F.2d 257 (5th Cir.1984). Rather than referring this case to the remaining sitting judge in this District, the Court will follow a plan of action which attempts to assure, but cannot guarantee, that the Defendant is tried by a judge without knowledge of the prior proceeding, regardless of the source of that judge’s knowledge.

Since the slip opinions of the First Circuit Court of Appeals are routinely distributed to the district courts within the Circuit, presumably every trial judge within the Circuit is aware of the Defendant’s prior dangerous special offender proceeding. Thus this Court will request that the Chief Judge of the First Circuit, Chief Judge Levin H. Campbell, arrange for a federal district judge from another circuit to preside over Defendant’s new trial. In an effort to avoid disclosure of the prior dangerous special offender proceeding, the designated trial judge will be told that the reason why that judge is needed to preside over Defendant’s trial cannot be revealed until after the trial. This judge will be provided with a case file which has been sanitized so as to delete any reference to the prior dangerous special offender proceeding, including this opinion. The file will include the opinion of the First Circuit Court of Appeals in this case, with the section of that opinion marked “III. THE SENTENCING” deleted (pages 12 to 13 of the slip opinion). Hopefully by following the within protocol, the appearance of any possible bias by the new trial judge will be avoided.

Finally, this Court will order that the venue of this case be changed to that district in which the designated trial judge sits, so that any publicity about the Defendant’s new trial which traces the case’s history will not taint the presiding judge. By ordering such a transfer, Congress’ expressed policies best can be carried out.

For the foregoing reasons, Defendant’s motion that this Court disqualify itself from presiding over the trial is granted, while Defendant’s motion to dismiss the superceding indictment and his motion that this Court issue a declaratory judgment precluding sentence enhancement are denied. Defendant’s motion that a federal district judge from outside the First Circuit be appointed to preside over his new trial is granted conditioned upon the designation of such a judge by Chief Judge Campbell of the First Circuit Court of Appeals. The venue will be changed to the district within which that appointed judge sits.

SO ORDERED.

      . The Government does not explain why it considers that a judge with whom the notice was filed is especially disqualified vis a vis a judge who otherwise has knowledge of the Government's filing.

      . Defendant makes much of the court’s language in United States v. Bailey, 537 F.2d 845, 847-49 (5th Cir.1976), but makes no reference to United States v. White, supra, decided by the Fifth Circuit eight years thereafter. White distinguishes Bailey. 748 F.2d at 259.


author: KISER, District Judge.

text:
    Murray W. WHITTLE, et al., Plaintiffs, v. TIMESAVERS, INCORPORATED, et al., Defendants.
    Civ. A. No. 81-0190-D.
    United States District Court, W.D. Virginia, Danville Division.
    May 17, 1985.

      Joseph M. Winston, Jr., Luis A. Abreu, Clement & Wheatley, Danville, Va., for Plywood Equipment Sales.
    William B. Poff, Anderson Cromer, Woods, Roger & Hazelgrove, Roanoke, Va., for Timesavers, Inc.
   MEMORANDUM OPINION

KISER, District Judge.

This case is presently before this Court on remand from the United States Court of Appeals for the Fourth Circuit. On September 28, 1983, I denied the Defendant Timesavers, Incorporated’s (“Timesavers”) Motion for Summary Judgment on a cross-claim for indemnity filed by their Co-Defendant Plywood Equipment Sales (“PES”). Whittle v. Timesavers, 572 F.Supp. 584 (W.D.Va.1983). This denial was subsequently appealed, reversed and remanded with precise instructions to consider two rather specific questions in light of the facts of this case. Whittle v. Timesavers, 749 F.2d 1103, 1106 (4th Cir.1984). The first question presented is whether an implied warranty of merchantability runs with the sale of a used product, and secondly, whether such an implied warranty will give rise to an implied contract of indemnity.

Before beginning this analysis, it would be beneficial to very briefly consider the historical posture and the facts of this case. Mr. Murray W. Whittle originally filed this products liability action against Timesavers, PES and U.S. Plywood Champion Papers, Incorporated (“Champion”) seeking damages for injuries sustained while using an industrial wood sander. He alleged that the Defendants had been negligent and had breached the implied warranties in the sale and that this caused his injuries. This sander had been originally designed and manufactured by Timesavers who initially sold it to Champion. After a period of time, Timesavers reacquired ownership, but not possession of the sander, as a trade-in from Champion. Timesavers then sold the machine, still in place at the Champion plant, to PES who was and is in the business of refurbishing and selling used industrial woodworking equipment. PES sold the sander to Whittle Plywood, the original plaintiff’s employer, on an “as is— where is” basis. Following the institution of this suit by Whittle, PES filed a cross-claim against Timesavers seeking indemnity. Prior to trial, PES settled with Whittle, and Timesavers settled during the trial. Timesavers then filed a Motion for Summary Judgment against PES which was denied by this Court. See Whittle, supra, 572 F.Supp. 584 (W.D.Va.1988). The subsequent history of this litigation is all too well known by the parties.

I.

On remand, the initial issue which must be considered is whether an implied warranty of merchantability runs with the sale of a used good. An implied warranty of merchantability in this State finds its legitimacy in the Virginia Commercial Code which became effective on January 1, 1966. This warranty arises by operation of law, and not by agreement of the parties. Anderson on the Uniform Commercial Code, § 2-314:25 (3rd Ed.19'83). The relevant statute provides in pertinent part:

(1) Unless excluded or modified (§ 8.2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to the goods of that kind.

Va. Code § 8.2-314 (1950), as amended.

This warranty of merchantability is implied in every sale made by a merchant seller unless excluded in a manner which is effective under the Code. Anderson, supra, § 2-314:25. There is little question that had the sander been a new product the warranty would have followed. Timesavers certainly qualifies as a merchant with regard to these particular goods and absent an express exclusion sufficient under Va. Code § 8.2-316, the warranty would apply. Thus, the question is whether this result would be any different when the product was used. I believe not.

The provisions of the Code relating to warranties applies to all goods, without any distinction as to whether the goods are new or used goods. Therefore, any warranty authorized by the Code may arise with respect to the sale of used or secondhand goods.

Anderson, supra, § 2-314:188.

The Code makes absolutely no distinction between new and used goods when defining “goods” in Va.Code § 8.2-105, 1950, as amended. If the drafters of the Code had intended for this particular section to apply only to new goods, then it would have been simple to have so stated; however, this was not done. In the absence of express language to the contrary, I believe that in the area of implied warranties that no distinction is made between new and used goods. This view is followed by other commentators on this subject as well as numerous other jurisdictions who have considered this question. See, Robert I. Stevenson, Virginia and West Virginia Products Liability at 117 (1983); A.L. Crandell v. Larkin and Jones Appliance Company, S.D., 334 N.W.2d 31, 36 (1983); International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 639 P.2d 29, 34 (1982); Natale v. Martin Volkswagen, Inc., 92 Misc.2d 1046, 402 N.Y.S.2d 156, 158 (N.Y.City Ct.1978); Knipp v. Weinbaum, 351 So.2d 1081, 1084 (Fla.App.1977); Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wash.App. 39, 554 P.2d 349 (1976); Georgia Timberlands, Inc. v. Southern Airways Co., 125 Ga.App. 404, 188 S.E.2d 108, 109 (1972).

Timesavers has skillfully argued that no such implied warranty attached to the sale of used goods. As support, they point to one of the official comments to the Uniform Commercial Code which states:

A contract for the sale of secondhand goods, however, involves only such obligation as is appropriate to such goods for that is their contract description.

Va.Code § 8.2-314, Comment 3, 1950, as amended.

Timesavers argues that this supports the proposition that there is no implied warranty of merchantability with used goods. On the contrary, I believe that this supports even further the conclusion that the drafters intended not to make a distinction between new and used goods. Had the implied warranty been intended to apply only to new goods, this comment would be meaningless. This statement by the drafters refers to the scope of the warranty and not the existence of such. It merely indicates that when you buy a used product you cannot expect it to be as good as a new one. In short, the warranty which attaches to a used good obviously takes into account normal wear and tear. See International Petroleum Services, Incorporated v. S & N Wells Service, Incorporated, 230 Kan. 452, 639 P.2d 29; McCormack v. Lynn Imports, Incorporated, 114 Misc.2d 905, 452 N.Y.S.2d 821.

PES accurately notes that this limitation would not be of any relevance in a design defect case. If a product is defectively designed when new, then it is no less so when used. The original Plaintiff in this action, Murray Whittle, specifically alleged that Defendants were negligent in failing to guard moving parts properly and to install safety devices and of failing to fully and adequately warn of the dangers. While it is true that these charges were never proven, if any warranties were breached it would have been the result of a design defect.

Additional authority cited by Timesavers is the Virginia Supreme Court case of Smith v. Mooers, 206 Va. 307, 142 S.E.2d 473 (1965), wherein the court held that there was no implied warranty with a used product. This, however, is a pre-Code case and as such is not binding. Timesavers argues on the contrary that Smith is still good law since it was not specifically overruled by the Code. This position is without merit. The very wording of the statute in question would indicate otherwise. The statute provides that “unless excluded or modified (§ 8.2-316)” a warranty is implied. With the exception of the circumstances set forth in Va.Code § 8.2-316, a warranty will exist. There are no implied exclusions to the implied warranty.

Contrary to the recognition of warranties in the sale of used goods, there are decisions that read into the Code an exception that is not expressly stated and refuse to find an implied warranty in the sale of used goods. This view is based upon pre-Code authority and should be regarded as displaced by exclusion: the warranty provisions of the Code exclude any implied exception by the fact that no exception is stated.

Anderson, supra, § 2-314:188.

While Smith may accurately reflect the state of the law prior to 1966, this was displaced by the General Assembly’s enactment of the U.C.C. on January 1, 1966. Thus, I conclude that an implied warranty of merchantability for the used sander did run from Timesavers to PES.

II.

The next issue is whether there is an implied contract of indemnity which derives its existence from the implied warranty of merchantability. I believe that there is.

Indemnity is distinguishable from contribution in that contribution springs from the equitable theory that where there is a common burden, as between joint tort feasors, there should be a common right, while indemnity springs from an express or implied contract.

Moretz v. General Electric Company, 170 F.Supp. 698, 704 (W.D.Va.1959) (Emphasis Added).

An implied warranty of merchantability would suffice as such an implied contract. In considering this precise question, Anderson states:

When the defendant’s breach of warranty has caused the plaintiff to sustain loss by subjecting him to liability to a third person, the plaintiff may obtain indemnity from the defendant.

Anderson, supra, § 2-314:15.

More specifically, “when a seller is held liable for a defect which also constitutes a breach of the implied warranty of the manufacturer to the seller, the seller is entitled to indemnity from the manufacturer.” Id. at 2-314:16.

The case authority cited to this Court also supports this proposition.

Both the originator of the dangerous instrumentality and the subsequent owner owes duties to protect an innocent victim from its dangers. ... A duty arises on the part of the original supplier to indemnify his successor who has become liable to the person injured. There is no policy of the law which forbids a seller of a product from making good on his warranty to the buyer, whether the representation be expressed or implied.

Eagle Star Insurance Company of America v. Metromedia, Incorporation, 578 F.Supp. 184, 189 (D.Vt.1984).

Likewise, applying Missouri law, a federal district court held:

A retailer may have a right to indemnification from the manufacturer of a component part based on a breach of either an express or implied warranty.

City of Clayton v. Grumman Emergency Products, Incorporated, 576 F.Supp. 1122, 1128 (E.D.Mo.1983).

“An implied warranty may also be the basis for survival of an indemnity action.” Feehan v. United States Alliance, Incorporated, 522 F.Supp. 811, 816 (S.D.N.Y.1981). Accord, Bell v. Federal Reserve Bank, 57 F.R.D. 632, 635 (E.D.Va.1972).

While there is no specific Virginia authority directly on point, I believe that where there has been a breach of an implied warranty of merchantability that an implied contract for indemnity will lie. We need not reach the issue as to the degree of proof required to support an action for indemnity. This was thoroughly discussed in this Court’s earlier opinion. See Whittle v. Timesavers, 572 F.Supp. 584 (W.D.Va.1983).

The Clerk is directed to send certified copies of this Memorandum Opinion to all counsel of record.

An appropriate Order will be entered.