author: JON 0. NEWMAN, Chief Judge:

text:
    Michael MAIETTA, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Greenhaven Correctional Facility, Respondent-Appellee.
    No. 1323, Docket 95-2673.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 22, 1996.
    Decided May 15, 1996.

      Steven C. Krane, New York City (Pamela B. Silverman, Proskauer Rose Goetz & Men-delsohn, New York City, on the brief), for petitioner-appellant.
    Lisa I. Cuevas, Asst. Dist. Atty., New York City (Robert T. Johnson, Dist. Atty., Joseph N. Ferdenzi, Allen H. Saperstein, Asst. Dist. Attys., New York City, on the brief), for respondent-appellee.
    Before: NEWMAN, Chief Judge, LUMBARD and KEARSE, Circuit Judges.
   JON 0. NEWMAN, Chief Judge:

The issue on this appeal concerns the pre-clusive effect of a guilty plea in the context of successive criminal prosecutions. The precise issue is whether a guilty plea forecloses a challenge to the validity of an arrest under circumstances where not being arrested is a condition of a plea agreement governing sentencing on an unrelated charge. The issue arises on an appeal by Michael Maietta from the September 5, 1995, judgment, of the District Court for the Southern District of New York (Lawrence M. McKenna, Judge) denying his petition for a writ of habeas corpus to challenge a state court sentence. Because the guilty plea eliminates any issue of the validity of the arrest, at least for purposes of demonstrating Maietta’s breach of the plea agreement, we affirm.

Background

Maietta pled guilty in Bronx County Supreme Court to four counts of burglary-related crimes. The plea agreement provided that Maietta’s sentence would be within a range of four to eight years, provided that he met certain conditions including not being arrested while at liberty awaiting sentencing. The state court trial judge warned Maietta that, if he did not satisfy the conditions of the agreement, he would receive the maximum sentence. When defense counsel pointed out that, on a prior occasion, Maietta had been arrested, apparently without foundation, and released within a few days, the trial judge responded that “[i]f he gets arrested and the case is dismissed within three days of the arrest,” the Court would not find the no-arrest condition violated. The Court later stated to Maietta, “I am warning you ..., you get arrested again, not convicted but arrested again, you face significant time in jail.”

Only a few weeks after entering the plea, Maietta was arrested for a burglary in West-chester. The arrest was based on evidence that Maietta’s Jeep was observed parked in front of a residence in Yonkers, which the Jeep passenger then attempted to burglarize. A police officer on the scene later identified Maietta as the driver of the vehicle.

At sentencing on the Bronx charge, Maiet-ta sought to offer evidence that he had not been the driver of the Jeep in Westchester. His evidence consisted of a signed but un-sworn statement by Anthony Salveggi that he, not Maietta, was the driver, and three statements from alibi witnesses. The sentencing judge declined to consider the evidence and proceeded to impose a sentence of ten to twenty years imprisonment. The sentencing judge stated:

I made it extremely clear that if the defendant was rearrested, rearrested I emphasize, not convicted, not indicted, not pursuant to a subsequent hearing, but rearrested period, that I was going to enhance his sentence and give him the máxi-mum sentence allowed under the law....
... [I]n this ease, not only was the defendant arrested but he was subsequently indicted so that there is an additional filter for the quality of the arrest, and not only was he arrested and not only was he indicted, but he was arrested and indicted for things that he does professionally, burglary.

In the Appellate Division, Maietta argued that the Bronx sentencing judge should have imposed the four-to-eight-year sentence, or at least conducted an evidentiary hearing to determine whether the Westchester arrest was valid. The Appellate Division affirmed the sentence because, among other reasons, an evidentiary hearing would be duplicative of the forthcoming Westchester criminal proceedings. People v. Maietta, 173 A.D.2d 17, 24, 578 N.Y.S.2d 529, 533-34 (1st Dept.1991).

Maietta subsequently pled guilty to the Westchester charge. At the plea allocution, he explicitly admitted that he was the person who had committed the Westchester burglary. He now asserts that he pled guilty only because he had lost faith in the criminal justice system, he did not wish to risk receiving a longer sentence after a trial, and he understood that he would serve his West-chester sentence concurrently with his Bronx sentence.

In the New York Court of Appeals, Maiet-ta argued that the Bronx sentencing court had deprived him of due process by failing to hold an evidentiary hearing to establish the validity of the Westchester arrest. The Court of Appeals held that, when a defendant denies post-plea criminal conduct, the sentencing court must conduct an “inquiry” to permit the defendant to show that the arrest is unfounded. However, the Court rejected Maietta’s claim that this inquiry must be a full evidentiary hearing. The Court found that the sentencing judge had inquired sufficiently by noting Maietta’s ownership of the crime vehicle, the eyewitness identification, and the grand jury indictment.

The District Court denied Maietta’s subsequent habeas corpus petition on the ground that according Maietta a federal constitutional right to challenge the validity of his arrest for purposes of the plea agreement would constitute a “new rule” within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Discussion

On appeal, Maietta alleges that his due process rights were violated by the state court that sentenced him to the maximum penalty on the Bronx charge because the Westchester arrest was considered to be a violation of the plea agreement governing the Bronx charge. Maietta claims that the Westchester arrest was based on mistaken identity, and that the Bronx sentencing court should have conducted an evidentiary hearing to determine whether the arrest was valid. We affirm the denial of habeas corpus on the ground that, in the circumstances of this case, Maietta’s guilty plea to the West-chester charge precludes his challenge to the validity of his arrest on that charge, at least for the limited purpose of determining his breach of the plea agreement governing the Bronx charges.

Though collateral estoppel has been applied from one criminal proceeding to another for the benefit of the accused, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), whether the doctrine may be applied against the accused has divided the few courts of appeals that have considered the question. The Eighth and Ninth Circuits have held that a prior conviction that necessarily determines a defendant’s alienage has collateral estoppel effect on the issue of alienage in a subsequent criminal prosecution. See Hernandez-Uribe v. United States, 515 F.2d 20, 21 (8th Cir.1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976); Peña-Cabanillas v. United States, 394 F.2d 785, 787 (9th Cir.1968). On the other hand, the Third Circuit has held that the Sixth Amendment’s guarantee of a jury trial entitles a defendant to have every fact necessary to a conviction determined by a jury, including a fact determined by a prior jury. See United States v. Pelullo, 14 F.3d 881 (3d Cir.1994).

We need not decide whether a fact necessarily found adversely to a criminal defendant has collateral estoppel effect in a subsequent juiy trial of a criminal case, because in the pending ease the issue is whether the defendant’s conviction precludes his challenge to the validity of an arrest that is used only for purposes of sentencing in a different criminal case. Maietta’s guilty plea to the Westchester charge precludes a challenge to the validity of the arrest because the conviction following the guilty plea constitutes an adverse adjudication of the merits of the only issue that Maietta sought to dispute at his sentencing on the Bronx charge — the identity of the perpetrator of the Westchester crime. His reasons for tendering that plea do not diminish the preclusive effect of the resulting conviction.

The judgment of the District Court is affirmed.

      . Application of collateral estoppel from a criminal proceeding to a subsequent civil proceeding is not in doubt. “It is well-settled that a criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in favor of the United States in a subsequent civil proceeding as to those matters determined by the judgment in the criminal case.” United States v. Podell, 572 F.2d 31, 35 (2d Cir.1978). See also LaMagna v. United States, 646 F.2d 775, 778 (2d Cir.) ("plea of guilty ... was an admission of all the elements of a formal criminal charge, and was itself a conviction as conclusive as a jury verdict”), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981). We have also ruled that, even where the requirements for collateral estoppel are not met, common law principles preclude a challenge to the validity of an arrest after a guilty plea, for purposes of a civil suit under 42 U.S.C. § 1983. See Cameron v. Fogarty, 806 F.2d 380, 386-89 (2d Cir.1986); see also Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995) (same as to Bivens lawsuit).


source: Caselaw Access Project

author: MAHONEY, Circuit Judge:

license: Public Domain

text:
    Lawrence J. BERNARD, Jr., Plaintiff-Appellee, v. LAS AMERICAS COMMUNICATIONS, INC., Defendant-Appellant.
    No. 282, Docket 95-7305.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 17, 1995.
    Decided May 16, 1996.

      Eduardo F. Lopez, New York City (Lopez & Romero, New York City, of counsel), for Plaintiff-Appellee.
    Russell Munves, New York City (Steven G. Storch, Storch, Amini & Munves, P.C., New York City, of counsel), for Defendant-Appellant.
    Before LUMBARD, CARDAMONE, and MAHONEY, Circuit Judges.
   MAHONEY, Circuit Judge:

Defendant-appellant Las Americas Communications, Inc. (“LAC”) appeals from a judgment entered March 9,1995 after a jury trial in the United States District Court for the Southern District of New York, Sonia Sotomayor, Judge, that awarded plaintiff-ap-pellee Lawrence J. Bernard, Jr. a contingent portion of a legal fee related to his representation of LAC in its application for a radio station license from the Federal Communications Commission (the “FCC”). The judgment also dismissed with prejudice LAC’s counterclaim for legal malpractice. LAC argues on appeal that the district court erred in charging the jury on proximate causation, damages, and materiality, and in excluding evidence regarding the value of the license that LAC sought.

We affirm in part and vacate and remand in part.

Background

In 1982, LAC, a New Jersey corporation having its principal place of business in New York decided to apply to the FCC for a license to build and operate an FM radio station in Newark, New Jersey (the “License”). LAC retained the services of attorney Bruce Eisen to represent it with respect to this application.

In order to finance the project, LAC developed a relationship with the New York National Bank (“NYNB”). On October 28, 1985, NYNB agreed to extend a $400,000 line of credit to LAC if the FCC granted LAC the License. NYNB also loaned $75,000 to LAC on November 29, 1985, to be repaid by February 24, 1986. In consideration of their providing certain collateral to secure the loan, LAC executed a “promise to sell a 12% equity interest in [LAC] to Mr. Frank Flores and Mr. Antonio Acevedo[,] 6% each.” During the early months of 1986, NYNB periodically agreed to extend this loan.

In June 1986, however, NYNB informed LAC that it was no longer willing to fund LAC’s ongoing expenses, and on June 24, 1986, it demanded immediate repayment of the outstanding loan. LAC needed NYNB’s line-of-credit commitment, the funds from the outstanding loan, and an additional $60,-000 in order successfully to continue the FCC loan application process. Immediately thereafter, LAC’s president, L. Raul Bernard (“President Bernard”), telephoned plaintiff-appellee Lawrence J. Bernard, Jr. (“Bernard”), an attorney in Washington, D.C., regarding the FCC application and its funding. They agreed to meet a few days later at Bernard’s Washington office.

At the meeting, President Bernard and Bernard telephoned Serafín Mariel, the president of NYNB, and arranged a meeting with Mariel later that day. During this meeting, Bernard learned of the outstanding loan to LAC and NYNB’s demand for its repayment. In the course of this meeting with Mariel, the parties arrived at the outlines of an agreement (the “Loan Agreement”) for NYNB’s continued support of LAC’s FCC application. Specifically, it was agreed that: (1) Bernard would represent LAC throughout the application process; (2) Flores and Acevedo would provide $150,000 to LAC to satisfy LAC’s obligations to NYNB and to Eisen, LAC’s former counsel, and to pay for ongoing legal services related to the License application; and (3) if LAC’s application was granted by the FCC, LAC would pay Flores and Acevedo an amount equivalent to twelve percent of the value of the radio station.

Shortly thereafter, Bernard and LAC executed a retainer agreement dated July 8, 1986 under which Bernard was to receive an initial fee of $20,000 as compensation for his services. As presently relevant, the agreement also provided that

4- [I]n the event Las Americas decides to dismiss its application, either in the Court or at the FCC, in return for a payment from another applicant, Las Americas will pay [Bernard] a fee ... equal to eight percent (8%) of all amounts received in excess of Two Hundred Thousand Dollars ($200,000.00), payable at such time as Las Americas actually receives funds in excess of $200,000.00.
It is understood and agreed that Las Americas may terminate [Bernard’s] services at any time and proceed with the prosecution of its application with another attorney, provided that paragraph[ ] 4 ... above will remain in force and Las Americas will pay [Bernard] the amounts due thereunder in the event the contingencfy] described therein [is] realized.

The Loan Agreement was negotiated over the summer of 1986, and finalized and signed on September 16, 1986. The Loan Agreement included a provision that LAC would “pay Acevedo/Flores twelve percent (12%) of any and all funds ... which it receives or $360,000, whichever sum is greater,” if LAC “decide[d] to dismiss its application to the FCC in return for a payment or payments from any other applicant or applicants whose applications are or shall be pending and subject to the FCC hearing proceedings.” The Loan Agreement also contained a “call” provision that allowed Flores and Acevedo to demand $360,000 after two years if LAC’s application to the FCC was still pending. At trial, LAC claimed that Bernard had failed to advise LAC of the adverse impact that this “call” provision of the Loan Agreement would have upon its FCC application, and that Bernard failed to disclose this provision to the FCC.

Having resolved the NYNB funding crisis, LAC proceeded with its License application. In 1986, President Bernard enlisted the aid of Rafael Diaz, a personal friend, to obtain additional financing to pay off the competing applicants for the License in exchange for their withdrawal of their applications. From 1986 to 1989, Diaz lent LAC approximately $700,000.

By 1987, LAC had five serious competitors for the License. From 1987 to 1989, LAC negotiated with these five competitors. In the spring of 1989, all five applicants signed a series of settlement agreements which requested that the FCC approve LAC’s application. One of the competitors subsequently attempted to withdraw from a settlement agreement with LAC, and LAC brought suit to enforce the contract in the District of Columbia Superior Court. This litigation was settled in November 1989.

Diaz introduced LAC to Midlantic Bank of New Jersey (“Midlantic”), and Midlantic issued a $3,200,000 loan commitment to LAC on January 30,1989. The proceeds from this loan were to be used by LAC to fund the settlement agreements it had reached with its competitors. An issue arose at trial about whether Midlantic had been informed about the Loan Agreement when it issued this commitment. According to Bernard, on April 2, 1990, he finally prevailed upon LAC to disclose the Loan Agreement to Midlantic. According to President Bernard, he made this disclosure “[w]hen [LAC] first started to deal with Midlantic.”

In January 1990, President Bernard and his attorneys, Leroy Wilson and Bernard, met with Flores, Acevedo, and their attorney, Dasil E. Velez. At this meeting, a dispute arose between the parties as to the extent of LAC’s obligations to Flores and Acevedo. The meeting broke up acrimoniously, and Flores and Acevedo commenced a lawsuit against LAC in the Supreme Court of New York, New York County in April 1990, a month after the FCC approved the LAC settlement agreements. This lawsuit sought to compel LAC to arbitrate the value of Flores’ and Acevedo’s claim under the Loan Agreement. Shortly after this lawsuit began, Midlantic demanded that it be resolved by May 25, 1990, indicating that Midlantic would otherwise withdraw its $3,200,000 financing commitment. This lawsuit also notified several of LAC’s competitors of the existence of the Loan Agreement, and three of them filed petitions with the FCC requesting reconsideration of the FCC’s prior approval of the settlement agreements.

LAC failed to resolve the Flores/Acevedo lawsuit by May 25, 1990; as a consequence, Midlantic withdrew its $3,200,000 loan commitment on June 5, 1990. In July 1990, the New York Supreme Court granted summary judgment in favor of Flores and Acevedo, and ordered LAC to submit to arbitration on the amount to be paid to them under the Loan Agreement.

On March 13, 1991, the FCC issued an order remanding the LAC application for further hearings before an administrative law judge to determine LAC’s qualifications for the License. LAC replaced Bernard and James Gammon, another attorney working on the FCC application, with a Washington law firm in April 1991.

On July 31, 1991, while additional hearings were being held by an FCC administrative law judge, LAC withdrew its application for the License in favor of a competitor in exchange for a payment of $2,100,000 plus interest. LAC received this money in the summer of 1993. Shortly thereafter, Bernard demanded payment under the applicable contingency portion of his retainer agreement (the “Contingent Payment”). After LAC refused his demand, Bernard initiated the present action on September 27, 1993.

On December 1,1993, LAC answered Bernard’s complaint by denying its obligation to pay Bernard and counterclaiming for malpractice, contending that Bernard had “failed to exercise reasonable care and skill” in his representation of LAC. A trial was held in February 1995 at the conclusion of which the jury found that: (1) Bernard’s representation of LAC had been negligent; (2) Bernard’s negligent representation had not proximately caused LAC’s failure to obtain the License; and (3) Bernard had not materially and substantially breached the retainer agreement so as to be disentitled to the Contingent Payment. Accordingly, the district court entered judgment requiring LAC to make the Contingent Payment to Bernard, and dismissed LAC’s counterclaim with prejudice.

This appeal followed.

Discussion

As previously noted, LAC contends on appeal that the district court erred in its instructions concerning proximate causation, damages, and materiality, and in excluding evidence regarding the value of the radio station license that LAC unsuccessfully sought. We consider these contentions in turn.

A Proximate Causation and Damages.

The interplay between proximate causation and damages resulted in the dismissal of LAC’s counterclaim against Bernard despite the jury’s verdict that Bernard had been negligent in his representation of LAC. We therefore consider these aspects of the case in tandem.

The district court instructed the jury that LAC’s counterclaim for malpractice could succeed only if the jury found, in addition to negligent representation by Bernard,

that [LAC] would have been successful in its ultimate goal to obtain the [License] were it not for the negligent acts of [Bernard]_ Therefore, for [LAC] to succeed, you will have to decide ... that, were it not for the negligence of [Bernard], if any, [LAC] would have been the final grantee of the [License].

LAC argues that the district court should have permitted recovery if LAC would have fared better in the application process but for Bernard’s negligence, even if that negligence did not proximately cause LAC to lose the License.

In an action for legal malpractice under District of Columbia law, which is recognized by both parties as applicable in this diversity of citizenship case, “it is sufficient to show that the movant could have ‘fared better’ in reaching the ultimate goal sought.” Chase v. Gilbert, 499 A2d 1203, 1212 (D.C.1985) (quoting Parksville Mobile Modular, Inc. v. Fabricant, 73 A.D.2d 595, 599, 422 N.Y.S.2d 710, 716 (2d Dep’t 1979)). This general rule must be applied, however, with a proper appreciation of the facts of the particular case under adjudication. In Chase itself, for example, the claim was that an attorney had negligently represented a client that was seeking a radio station license from the FCC, and the court’s focus was upon the outcome of that application. See id. (‘We hold that, even assuming negligence by Chase, GBC has failed to establish that his negligence caused it to be disqualified for the radio station Icense.”).

In the present case, LAC alleged in its counterclaim that “[h]ad Bernard exercised proper care and skil in [representing LAC], LAC would have been [the] successful appl-cant for [the License] in the proceeding before the FCC.” Moreover, as the district court observed at the charge conference when LAC raised the Chase “fared better” formulation, “the evidence and the arguments by counsel” at trial supported the conclusion that LAC was “complaining about ... the loss of a radio Icense.” Furthermore, aside from its mention of the Chase “fared better” formulation, LAC approved the verdict sheet that framed the issues for the ensuing jury delberations.

LAC now contends on appeal that Bernard’s neglgent representation caused LAC to incur extra expenses with respect to the radio station and the FCC proceeding for which it should be alowed to recover, and that the district court erroneously excluded evidence concerning the economic value of the License. As to the first claim, the case was not tried on that theory of recovery, and we will not retry the case at the appellate level. As to the second contention, the jury determination that Bernard’s negligent representation was not the proximate cause of LAC’s failure to obtain the License moots any consideration of evidence regarding the value of the License.

' In sum, LAC’s arguments concerning the issues of proximate causation and damages do not persuade us to disturb the judgment of the district court insofar as it dismissed with prejudice LAC’s counterclaim for legal malpractice.

B. Materiality.

In charging the jury as to Bernard’s right to the Contingent Payment, the district court said:

If ... you find that Bernard was negligent in his representation of [LAC], he may not be entitled to compensation. The question is whether [Bernard’s] negligence, if any, amounted to such a material and substantial breach of the retainer contract as to negate [Bernard’s] entitlement to fees.
A material breach of contract is one that would justify the other party in suspending its own performance of the contract. A substantial breach of contract is one that defeats the purpose of the entire transaction.
If you find that [Bernard] was negligent, and that his negligence amounted to a material and substantial breach of contract, then you may find that [LAC] does not owe [Bernard] the contingency fee. If, however, you find that [Bernard] did not materially and substantially breach the retainer contract, [LAC] must pay [Bernard] the agreed-upon contingency fee.

Thus, the district court required the jury to find that Bernard’s negligence “defeated] the purpose of the entire transaction” as a prerequisite to excusing LAC’s performance.

Bernard was entitled to the Contingent Payment if “Las Americas decide[d] to dismiss its application ... in return for a payment from another applicant.” It is undisputed that this contingency occurred and LAC did not make the Contingent Payment to Bernard. The question thus posed is whether Bernard’s negligent representation (as found by the jury) excused LAC’s obligation to make the Contingent Payment.

That obligation appears to have been conditioned only upon the occurrence of the stated contingency. Nevertheless, the law considers Bernard’s contractual obligation to provide legal representation to LAC to be a condition precedent to LAC’s payment obligation. See Restatement (Second) of Contracts § 237 (1979) (“[I]t is a condition of each party’s remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time.”). Because Bernard’s performance is a constructive condition, he must have substantially performed his obligation to provide legal representation in order to trigger LAC’s obligation to make the contingent payment. See Wakefield v. Northern Telecom, Inc., 769 F.2d 109, 113 (2d Cir.1985) (“Under th[e] doctrine [of substantial performance], ‘if one party’s performance is a constructive condition of the other party’s duty, only “substantial” performance is required of the first party before he can recover under the contract.’ ”) (quoting Farnsworth, Contracts § 8.12 at 590 (1982)). Of course, the doctrine of substantial performance does not require performance in exact correspondence with the contracted obligation. See Brown-Marx Assocs., Ltd. v. Emigrant Sav. Bank, 703 F.2d 1361, 1367 (11th Cir.1983) (“The substantial performance doctrine provides that where a contract is made for an agreed exchange of two performances, one of which is to be rendered first, substantial performance rather than exact, strict or literal performance by the first party of the terms of the contract is adequate to entitle the party to recover on it.”).

A finding that Bernard’s conduct in representing LAC materially breached his contract with LAC, however, is equivalent to a finding that Bernard did not substantially perform under the contract. See John D. Calamari & Joseph M. Perillo, Contracts § 11-18 at 461-62 (3d ed. 1987) (“Substantial performance is the antithesis of material breach. If it [is] determined that a breach is material, it follows that substantial performance has not been rendered.”). Therefore, the district court was correct in framing the jury charge in terms of the materiality of any breach by Bernard.

Under District of Columbia law, an attorney breaches a contract for his legal services if he fails “to perform with reasonable skill,” O’Neil v. Bergan, 452 A2d 337, 342 (D.C.1982), and the standard for satisfying the “reasonable skill” requirement in a contract action “is the same as the ‘reasonable skill’ which an attorney must display to avoid tort liability,” id. at 343. In the present case, Bernard’s legal representation was found by the jury to have been negligent; i.e., in terms of the district court’s jury instruction on the issue of negligence, not to have constituted “the exercise of reasonable competence, care and skill.”

Thus, the jury’s finding that Bernard was negligent established that he breached his contract of employment with LAC. If that breach was material, LAC was excused from performance of its promise to make the Contingent Payment. In our view, the district court erred in instructing the jury that a breach by Bernard would be material only if it “defeat[ed] the purpose of the entire transaction.” The standard of materiality under the law of the District of Columbia is considerably less demanding. A breach is material if the promisee “reeeiv[es] something ‘substantially less or different from that for which he bargained.’ ” Fowler v. A & A Co., 262 A2d 344, 347 (D.C.1970) (quoting Simpson, Contracts § 159 (2d ed.1965)); cf. O’Neil, 452 A.2d at 342 (client seeking to establish malpractice by attorney need not base breach of contract claim upon alleged promise to achieve specific result). Because LAC timely objected to the court’s instruction and proposed an alternative that accurately reflected the law of the District of Columbia, see Fed.R.Civ.P. 51, the judgment in favor, of Bernard on his claim for the Contingent Payment must be vacated and the case remanded for a new trial of that claim.

Conclusion

The judgment of the district court is affirmed insofar as it dismissed LAC’s counterclaim with prejudice, and vacated and remanded insofar as it required LAC to make the Contingent Payment to Bernard. The parties shall bear their own costs.

      . President Bernard is not related to Bernard, and the two had never met prior to this telephone conversation.

      . At that time, FCC rules permitted such payoff transactions. Effective August 1, 1991, a new rule was promulgated whereby no payoff amount could be paid to a competing applicant greater than the amount the competitor had actually spent in pursuit of its own application. See 47 C.F.R. § 73.3525(a)(3).

      . Indeed, the contract between Bernard and LAC explicitly provided that Bernard would be entitled to the Contingent Payment upon occurrence of the stated contingency even if he had been replaced as LAC’s counsel.


author: PARKER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Abiodun T. GIWAH, Defendant-Appellant.
    Nos. 635, 732, 389, Dockets 95-1229, 95-1230, 95-1242.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 21, 1995.
    Decided May 22, 1996.

      Louis R. Aidala, New York City (Martin Geoffrey Goldberg, New York City, on the brief), for Defendant-Appellant.
    Douglas M. Lankier, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Southern District of New York, Ira M. Feinberg, Assistant United States Attorney, New York City, of counsel), for Appellee.
    Before: CARDAMONE, WALKER, and PARKER, Circuit Judges.
   PARKER, Circuit Judge:

Abiodun Giwah pleaded guilty to one count of mail fraud in violation of 18 U.S.C. § 1341, one count of bail jumping in violation of 18 U.S.C. § 3146(a)(1) & (b)(l)(A)(ii), and one count of credit card fraud in violation of 18 U.S.C. § 1029(a)(2). He appeals two portions of his sentence: a thirty-three month prison term and an order to make restitution to the victims of his fraud in the amount of $79,265 in payments of at least 15% of his annual gross earnings. As for his prison sentence, Giwah argues that the United States District Court for the Southern District of New York (Allen G. Schwartz, District Judge) improperly refused to grant a downward adjustment for acceptance of responsibility. As for the restitution order, Giwah argues that (1) the district court failed to comply with the statutory procedure for imposing restitution, and (2) it was improper to order restitution payments of at least 15% of his income.

For the reasons explained below, we affirm the prison sentence, vacate the restitution order and remand for reconsideration thereof.

I. BACKGROUND

Giwah pleaded guilty to three criminal charges in January 1995: a count of mail fraud, a count of bail jumping, and a count of credit card fraud.

A The Crimes

The mail fraud charge stems from two money market accounts which Giwah opened in the spring of 1991. He opened these accounts with stolen cheeks totalling $81,180, and then withdrew $60,600 before the financial institution, Dreyfus, realized the illegality of the accounts and froze the assets in them. Giwah was arrested on this charge on February 8, 1993. He pleaded not guilty that same day and was released on a $50,000 personal recognizance bond.

While out on bail, however, Giwah committed two more crimes. First, during the summer and fall of 1993, he opened two Citicorp Diner’s Club card accounts under false names and charged $18,665 worth of purchases. This amount was lost by Citicorp. This conduct violated 18 U.S.C. § 1029(a)(2), the credit card fraud statute.' Second, he jumped bail when he failed to appear at a December 3, 1993 pre-trial hearing relating to the mail fraud charge, in violation of 18 U.S.C. § 3146(a)(1) & (b)(l)(A)(ii).

Giwah was indicted for bail jumping on December 28,1993, and was arrested on that charge in February 1994. He has been in federal custody since that time. Because he used fake names to perpetrate the credit card fraud, federal authorities did not connect Giwah to that crime until after his February 1994 arrest. Giwah was indicted for credit card fraud on December 19,1994.

B. The Plea Agreement

Giwah pleaded guilty on January 27, 1995, to all three indictments. In the plea agreement with the government, he agreed that his adjusted offense level pursuant to the United States Sentencing Guidelines (“USSG”) was 16. This figure reflected a base offense level of 12 from grouping the two fraud counts and totalling the amounts of money they involved, increased by 2 for more than minimal planning pursuant to U.S.S.G. § 2Fl.l(b)(2), and by another 2 due to the additional count of bail jumping pursuant to USSG § 3D1.4 (rules for calculating effect of count grouping). Giwah and the government also agreed to a three level decrease for acceptance of responsibility pursuant to USSG § SE1.1. This decrease brought the total offense level to 13. For purposes of the agreement, Giwah’s criminal history level was calculated to be category III. Lastly, the agreement stated that neither the court nor the Probation Department was bound by the sentencing calculations in the agreement and that “defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be outside the Guidelines range set forth above.”

The Probation Department in its Presen-tenee Report (“PSR”) also calculated Giwah’s adjusted offense level to be 16, though in a slightly different way. Rather than considering the bail jumping offense as an additional count to be calculated pursuant to USSG § 3D1.4 (resulting in a two point increase pursuant to count-grouping rules), the probation department treated bail jumping as an obstruction of justice relating to the mail fraud count pursuant to USSG § 3C1.1, comment. (n.6), resulting in a two point increase. Also in contrast to the plea agreement, the Probation Department determined that Gi-wah deserved only a two point reduction, not three, for acceptance of responsibility. Thus the total offense level according to the Probation Department was 14. The Probation Department reasoned that Giwah did not deserve the additional downward adjustment for acceptance of responsibility under USSG § 3E 1.1(b) because he waited more than a year and a half between his first indictment on mail fraud and his eventual guilty plea.

The Probation Department also recommended that the court order Giwah to pay, “with at least 10% of his gross earnings, full restitution” to Dreyfus and Citicorp.

C. The Sentence

At sentencing, Judge Schwartz adopted the Probation Department’s recommended adjusted offense level of 16, including the obstruction of justice enhancement pursuant to USSG § 3C1.1. Judge Schwartz gave two reasons for applying the obstruction enhancement. First, he found that Giwah perjured himself during a suppression hearing on August 25,1994 relating to the mail fraud charge. Second, the court emphasized Gi-wah’s bail jumping.

But Judge Schwartz rejected both the plea agreement and the PSR when he refused any downward adjustment for acceptance of responsibility under § 3E1.1. He reasoned that this was not an “extraordinary case” such that it would warrant both the obstruction enhancement of § 3C1.1 and the acceptance reduction of § 3E1.1. See USSG § 3E1.1, comment, (n.4). Judge Schwartz explained that Giwah’s “extensive efforts [to] obstruct justice at the very least militates in favor of’ rejecting the acceptance deduction.

Giwah was sentenced to thirty-three months in prison, the highest sentence within the applicable guideline range (offense level 16, criminal history category III), to be followed by three years of supervised release. Judge Schwartz also ordered Giwah to pay over $79,000 in restitution, “at a rate of at least 15 percent of his annual gross earnings,” during Giwah’s supervised release. Judge Schwartz did not impose a fine, though the Guidelines called for one between $4,000 and $40,000, “because I find the defendant has not the ability to pay a fine.”

II. DISCUSSION

A. The Prison Sentence

1. Standard of Review

Whether there has been an acceptance of responsibility is a fact-question and the circuit court will not reverse the district court’s finding on this issue unless it is “without foundation.” United States v. Harris, 13 F.3d 555, 557 (2d Cir.1994) (citing United States v. Irabor, 894 F.2d 554, 557 (2d Cir.1990)). Accordingly, a district court’s decision regarding a defendant’s acceptance of responsibility in a sentencing calculation “is entitled to great deference on review.” USSG § 3E1.1, comment, (n.5).

2. Review

As discussed in the statement of facts above, the district court based its refusal to give Giwah the benefit of accepting responsibility on (1) Giwah’s perjury in an evidentiary hearing relating to his mail fraud charge and (2) Giwah’s bad jumping. The propriety of the obstruction enhancement is clear. Failing to appear for a judicial proceeding is one prototype of justice obstruction under the guidelines. See USSG § 3C1.1, comment. (n.3(e)). It is also perfectly proper to base a § 3C1.1 enhancement and the denial of a § 3E1.1 reduction on the same conduct of the defendant. United States v. Echevarria, 33 F.3d 175, 179 (2d Cir.1994) (doing so is not impermissible double-counting). Under application note 4 to § 3E1.1, it takes an “extraordinary case” to justify the simultaneous application of the obstruction increase and the acceptance decrease. Giwah makes no argument that this is such an extraordinary case other than his attempt to minimize the seriousness of his justice-obstructing conduct.

For example, he argues that his perjury at an evidentiary hearing should not count against him because it was in response to aggressive questioning from the bench. This argument is breathtaking. Perjury is no less serious when it is committed in response to questions from a judge than when it is committed while answering a lawyer’s inquiry.

Giwah also argues that the perjury occurred long before the plea agreement. Therefore, he reasons, the obstruction was not very serious. Guideline § lB1.3(a)(l) makes clear that all acts “that occurred ... in the course of attempting to avoid detection or responsibility for that offense” “shall” be considered in determining the appropriate adjusted offense level. Giwah’s argument ignores this. His perjury can only be seen as an attempt to avoid responsibility or detection for his mail fraud crime.

In a more technical argument, Giwah contends that the obstruction enhancement should not apply (and therefore the acceptance reduction should apply) to the credit card fraud count because he was indicted on the credit card count after he engaged in the justice-obstructing conduct. He argues that he deserves an acceptance reduction for the credit card count because he pleaded guilty thereto only a month after indictment.

There are many problems with this argument. The first problem is that the sentence does not change if the credit card conviction is thrown out. Guideline § 2Fl.l(b)(l)(G) assigns the same base offense level to all frauds where the intended loss is more than $70,000 but less than $120,000. Here, Giwah and the Government agree that the intended loss in the mail fraud scheme was more than $80,000. The credit card fraud adds approximately $18,000 to the total. Combining the amounts from the two frauds does not increase the base offense level above that for the mail fraud alone. Furthermore, the mail fraud charge involved more than minimal planning. See USSG § 1B1.1, comment. (n.l(f)) (minimal planning exists where there are repeated acts over a period of time). Thus before the obstruction enhancement is applied, the base offense level is 14 regardless of the credit card count. This being the case, it is irrelevant whether Giwah accepted responsibility for the credit card count: The adjusted offense level is, therefore, 16 (14 + 2 from the obstruction adjustment).

The other major problem with this argument is that it ignores how the guidelines work. Guideline § 3D1.2 mandates that counts “be grouped together into a single Group .... (d) When the offense level is determined largely on the basis of the total amount of harm or loss.” Application'note 6 provides a relevant example:

(3) The defendant is convicted of five counts of mail fraud and ten counts of wire fraud. Although the counts arise from various schemes, each involves a monetary objective. All fifteen counts are to be grouped together.

USSG § 3D1.2, comment, (n.6). As in this example, Giwah engaged in multiple fraud schemes. The counts “shall be grouped together.” USSG 3D1.2. There is no error in considering the issue of acceptance of responsibility only after counts have been appropriately grouped. See United States v. Mizrachi, 48 F.3d 651, 655-56 (2d Cir.1995).

The last issue raised with respect to the refusal to grant the acceptance reduction is whether Giwah was entitled to advance notice of the denial of that reduction. A defendant’s acceptance of responsibility is always a factor which must be considered before sentencing. The Guidelines make clear that a guilty plea does not entitle the defendant to an acceptance reduction and that the defendant must prove to the court that he or she has accepted responsibility. USSG § 3E1.1, comment, (n.3). To argue that the defendant needs special notice before the court declines to adjust downward is inconsistent with that authority. This is especially true where, as here, the defendant stands convicted of, inter alia, jumping bail, constituting obstruction of justice which notifies defendant that an acceptance reduction will likely be difficult to obtain, at best.

B. Restitution

1. Standard of Review

18 U.S.C. § 3663(a) authorizes the sentencing court to “order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense.” We explained in United States v. Porter, 41 F.3d 68, 70 (2d Cir.1994), that the statute “require[s] restitution whenever possible.” See also USSG § 5El.l(a)(l) (“The court shall ... enter a restitution order if such order is authorized under 18 U.S.C. §§ 3663-3664....”).

The district court must consider certain factors when it decides whether to impose restitution. The sentencing court “shall” consider

the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.

18 U.S.C. § 3664(a). If the record fails to demonstrate that the court considered these mandatory factors, then this court will vacate a restitution order. United States v. Soto, 47 F.3d 546, 551 (2d Cir.1995); United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993); United States v. Gelb, 944 F.2d 52, 56-57 (2d Cir.1991). The district court need not make specific findings with respect to each of these factors, but the record must reflect that the court did consider them. United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.), cert. denied, — U.S. -, 116 S.Ct. 208, 133 L.Ed.2d 141 (1995).

The threshold issue (the only issue we reach) is whether the record reflects that the district court engaged in the factor analysis which Congress has mandated in 18 U.S.C. § 3664(a), and not whether the district court’s consideration of those factors was an abuse of discretion. In the latter instance, the standard of review is extremely deferential. See United States v. Atkinson, 788 F.2d 900, 902 (2d Cir.1986).

2. Review

The government argues that the Probation Department’s PSR in this case considered the § 3664(a) factors and the district court satisfied the procedural requirements for the imposition of an order of restitution when it “followed in large part the recommendations of the Probation Department.” There are two problems with this argument. First, the PSR appears to have detailed only the loss to the victims and Giwah’s ability to pay. The government does not tell us how the PSR considered, in the words of § 3664(a), “the financial needs ... of the defendant and the defendant’s dependents.” Those considerations are mandatory-

Second, the district court did not follow the recommendation of the PSR. The PSR recommended an order of full restitution (over $79,000), to be paid “with at least 10% of [Giwah’s] gross earnings.” In contrast, the district court ordered that restitution be paid “at a rate of at least 15 percent of the defendant’s annual gross earnings.” Thus the PSR recommended 10% and the district court ordered 15%.

In Soto, we held “that it is not enough for a district court to have before it a PSR which includes information that would be relevant to the consideration mandated by § 3664(a).” 47 F.3d at 551. Even if the PSR adequately considers the § 3664(a) factors, that fact alone is not enough to insulate a restitution order from being vacated by this court. There must be “an affirmative act or statement allowing an inference that the district court in fact considered” the mandatory factors. 47 F.3d at 551. As in Mortimer, 52 F.3d at 436, here the district court indicated its consideration of the defendant’s ability to pay restitution when it decided not to order Giwah to pay a fine, stating that the defendant lacked the ability to pay a fine. Such a decision, coupled with such a statement, permits an inference that the court did consider the defendant’s ability to pay when ruling on restitution.

There must, however, be a sufficient basis in the record for this court to infer that all of the § 3664(a) factors have been considered. These factors include the financial needs of the defendant and the defendant’s dependents. In this case, the terms of the restitution order fail to evidence sufficient consideration of these factors.

It could be argued that the terms of Gi-wah’s restitution order (i.e., payments of at least 15% of Giwah’s income) inherently reflect consideration of Giwah’s financial needs such that the restitution should survive appellate review. But reducing the income of a person who earns barely enough to pay routine living expenses by 15% will have a different impact than the same order imposed on a person with more income. Congress reflected such concerns when it specified that restitution orders are enforceable like civil judgments, 18 U.S.C. § 3663(h), and that civil judgments should not reach certain minimum earnings. See 15 U.S.C. § 1673 (insulating from garnishment the greater of thirty times the minimum hourly wage per week or 75% of the judgment debtor’s disposable earnings).

In this case, the restitution order imposed against Giwah does not evidence such consideration. The order to pay 15% of income is not coupled with evidence that such a percentage is not unduly harsh, nor is it accompanied with a safety valve such as the terms found in 15 U.S.C. § 1673. The contrary is true. The district court’s finding that Giwah lacks the “ability to pay a fine,” suggests the court envisioned Giwah having only very modest earnings. Accordingly, we remand for reconsideration of the portion of Giwah’s sentence which orders restitution payments in the amount of 15% of Giwah’s gross earnings.

We are cognizant of the inconvenience this remand creates for the parties and the courts. However, the government could avoid such inefficiencies by providing the sentencing judge, in open court, with a suggested rationale for imposing restitution or perhaps a suggested safety valve provision. If the sentencing judge adopts that rationale, and if that rationale reflects consideration of the § 3664 factors, then, as discussed above, the standard of appellate review is significantly more deferential, and the restitution order is more likely to survive appeal.

C. The Terms of the Restitution Order

To guide the district court on remand, we also briefly address Giwah’s alternative argument, that ordering payments of “at least 15%” of annual earnings is inherently improper. Giwah argues that the order must be for a “flat rate of 15%” if it is to reflect his ability to pay.

This argument is logically flawed. That the court allows Giwah to pay more than 15% of his earnings does not mean the court requires Giwah to pay more than 15%. Gi-wah is on the hook for the whole amount regardless of how he pays. By ordering at least 15%, the district court simply articulated what Giwah must do in order to avoid violating the terms of supervised release, pursuant to 18 U.S.C. § 3663(f) & (g), and to avoid other ramifications of failure to comply with a restitution order (such as suspension of all federal benefits pursuant to § 3663(i)).

The district court may only order a schedule of restitution payments during the five years following the conclusion of Giwah’s prison term. 18 U.S.C. § 3663(f)(2)(B). Ordering minimum payments during the time periods specified in 18 U.S.C. § 3663(f) clarifies what the defendant must do in order to continue to enjoy conditional liberty and other federal benefits. It is certainly in the defendant’s best interests to pay the full amount ordered as quickly as possible. After that time period expires, the defendant is subject to the laws regarding the enforcement of fines and money judgments.

III. CONCLUSION

Giwah’s prison sentence is affirmed. The restitution order is vacated and remanded for reconsideration. Any new restitution order should reflect that the district court properly engaged in the considerations mandated by 18 U.S.C. § 3664(a).

      . We have held that the decision not to impose a fine alone, without a statement from the district court explaining that decision, does not satisfy the requirement of “an affirmative act or statement allowing an inference that the district court in fact considered the defendant's ability to pay.” See Soto, 47 F.3d at 551.

      . Notwithstanding § 3663(f)(2)(B), the defendant remains liable to the government and the victims for unpaid amounts for up to 20 years. 18 U.S.C. § 3663(h)(1) (making restitution orders enforceable by the federal government in the same manner as fines and enforceable by the victims of the crime and the government in the same manner as a civil judgment); 18 U.S.C. § 3613(b)(1) (liability for payment of fine expires after 20 years); N.Y. Civ. Prac. L. & R. 211(b) (McKinney 1990) (creating conclusive presumption that money judgments are satisfied after 20 years).


author: PER CURIAM:

text:
    TRANS WORLD AIRLINES, INC., William D. Hart, Gary D. Dilley, as Members of the Retirement Board of the Retirement Plan For Pilots of Trans World Airlines, Inc., Plaintiffs-Appellants-Cross-Appellees, v. Anthony V. SINICROPI, H.O. Van Zandt, W.A. Murphey, as Members of the Retirement Board of the Retirement Plan For Pilots of Trans World Airlines, Inc., Defendants-Appellees, William L. Meusel, Jr., Air Line Pilots Association International, Defendants-Counterclaimants-Appellees-Cross-Appellants.
    Nos. 1618, 1883, Dockets 95-9222(L), 95-9224.
    United States Court of Appeals, Second Circuit.
    Argued May 20, 1996.
    Decided May 23, 1996.
    Thomas S. Gigot, Washington, D.C. (Gary M. Ford, William F. Hanrahan, Groom & Nordberg, Washington, D.C., Alane C. Probst, New York City, on the brief), for Plaintiffs-Appellants-Cross-Appellees.
    Eugene B. Granof, Herndon, Virginia (James K. Lobsenz, Herndon, Virginia, on the brief), for Defendants-Appellees and Defendants-Counterclaimants-Appel-lees-Cross-Appellants.
    Robert J. DeLucia, Washington, D.C., filed a brief for Amicus Curiae The Airline Industrial Relations Conference, in support of Appellants.
    Before: KEARSE, WINTER, and CALABRESI, Circuit Judges.
   PER CURIAM:

Plaintiffs Trans World Airlines, Inc. (“TWA”), and William D. Hart and Gary D. Dilley, as members of the Retirement Board of the Retirement Plan For Pilots of Trans World Airlines, Inc. (the “Board”), appeal from an amended judgment of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, dismissing their claims that defendants Anthony Sinieropi, H.O. Van Zandt, and W.A. Murphey, as members of the Board, erred in deciding certain pension claims of defendant William L. Meusel, Jr., a former TWA pilot. The district court granted summary judgment in favor of defendants on the grounds that since the Board was interpreting a pension plan established by agreement between TWA and defendant Air Line Pilots Association International (“ALPA”), which is the collective bargaining representative of TWA’s pilots, the Board’s decision is to be reviewed under the standards established by the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. (1994), rather than those provided in the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. (1994), and that under RLA standards the Board’s decision must be upheld. On appeal, plaintiffs contend that ERISA applied. Defendants Meusel and ALPA have cross-appealed, contending that although the Board’s decision was not reviewable under ERISA standards, the district court erred in refusing to award them attorney’s fees and costs under ERISA. We reject both challenges and affirm substantially for the reasons stated in Judge Haight’s Memorandum Opinion and Order dated May 30, 1995, reported at 887 F.Supp. 595 (1995).

We have considered all of the parties’ contentions in support of their respective appeals and have found them to be without merit. The amended judgment of the district court is affirmed.

No costs.


author: SAROKIN, Circuit Judge: STAPLETON, Circuit Judge,

text:
    Barbara CINEA; Sandra Bernardi; Ken Bernardi; Judith Wimbs, on their own behalf and on behalf of all others similarly situated; Betty Bendel v. Pennsylvania State Constable Daniel CERTO; Pennsylvania State Constable Fred Taiber; Bernard Regan, Manager of Constable Services for Allegheny County, individually and in their official capacities; Robert A. Cox; Nancy Sobolevitch; Patrick Siegworth. Barbara Cinea, Sandra and Ken Bernardi and Judith Wimbs, on their own behalf and on behalf of all other similarly situated, Appellants.
    No. 95-3168.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 7, 1995.
    Decided May 6, 1996.

      Janice Haagensen (Argued), Evalynn Welling, Neighborhood Legal Services Ass’n, Pittsburgh, PA, for Appellants.
    Howard M. Holmes (Argued), Supreme Court of Pennsylvania, Administrative Office of Pennsylvania Courts, Philadelphia, PA, for Appellee Nancy Sobolevitch.
    Before: STAPLETON, SAROKIN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

SAROKIN, Circuit Judge:

Plaintiffs, a class of Allegheny County judgment debtors, filed suit against Pennsylvania constables and the Court Administrator of Pennsylvania, alleging that plaintiffs were deprived of their property without due process of law by operation of Pennsylvania’s rules governing the post-judgment levy and execution against property in proceedings before district justices. Following a bench trial, the district court entered judgment for the defendants, and plaintiffs appealed. For the reasons that follow, we will affirm.

I.

Prior to the commencement of this action, each of the named plaintiffs was embroiled in a separate landlord-tenant proceeding before a district justice in Allegheny County. As a result of these proceedings, they were evicted from their homes, had money judgments entered against them, and had their personal property levied upon in satisfaction of that judgment. Their individual stories are as follows.

A. Barbara Cinea

Barbara Cinea, a welfare recipient who lived with her eight-year-old son in Pittsburgh, fell behind on her rent payments when her welfare benefits were temporarily suspended. In a proceeding before a district justice, Cinea’s landlord, Robert Cox, obtained a judgment against her for rent due and for possession of the property she occupied.

On March 3, 1992, in accordance with that judgment, Cinea was served with an eviction notice. Although the eviction was not to take effect until March 5, Cinea and her son fled hurriedly on March 4 in response to threats by the landlord, leaving behind all of their belongings. The following day, a constable posted a notice on the door stating that the locks had been changed and instructing Ci-nea to make arrangements with her landlord within thirty days of the date of the notice in order to retrieve her possessions.

On March 16, 1992, before the thirty-day period had expired, Constable Daniel Certo, a defendant in this action, entered the house and levied on Cinea’s property pursuant to a writ of execution issued by a district justice. The levy, which was intended to satisfy the money judgment in the landlord-tenant action, covered “ANY AND ALL PROPERTY BELONGING TO DEFENDANT AT ADDRESS.” Although Constable Certo could have taken the levied property into his physical possession, he left it, as is customary, in Cinea’s former residence subject to the terms of the levy. He then served Cinea at her mother’s house with notice of the levy and execution. The Notice of Levy stated: “YOU WILL THEREFORE NOT REMOVE THIS PROPERTY FROM THE PREMISES WITHOUT AN ORDER FROM ME.”

Because certain pieces of the furniture that was levied upon belonged to Cinea’s mother, her mother filed a property claim to recover them. Following a hearing, a district justice ordered the release of Cinea’s mother’s property on March 19. Pursuant to Pennsylvania rules for levy and execution proceedings, the landlord filed a timely objection in the state court of common pleas. Meanwhile, for reasons that are unclear from the record, Cinea’s mother did not receive her property. The court scheduled the hearing on the landlord’s appeal for September 15,1992 — nearly six months after the district justice’s order in Cinea’s mother’s favor.

Cinea herself also filed an objection to the levy, arguing that the value of the property seized far exceeded the amount of the underlying money judgment ($795) and that the levy was improper in that it included personal, unsalable items. What happened next is not clear from the record. It appears, however, that Cinea prevailed at least in part, and that the district justice ordered the release of much of the property that had been subject to the levy. Letter Order of District Justice Connery (March 30, 1992). Ulti-irately, after filing the instant action, Cinea settled with her landlord and recovered all of her property. The landlord released Cinea’s mother’s property upon settlement as well.

B. Sandra and Ken Bernard!

Sandra and Ken Bernardi were evicted from their apartment in January of 1992. Before they had actually moved out, Constable Fred Taiber, a defendant in this action, levied upon certain of their property in satisfaction of a $606 money judgment entered against them in the eviction action. The Notice of Levy, like the one given to Cinea, ordered the Bemardis not to remove any levied property from the premises without permission of the constable. Constable Tai-ber told the Bemardis that they would be imprisoned if they violated this order.

Although the Bemardis’ daughter succeeded in recovering property belonging to her that had been levied upon in satisfaction of her parents’ debt, the Bemardis themselves filed no objection to the levy. They moved out pursuant to their eviction, leaving the levied property behind. The property was subsequently sold by the constable.

C. Judith Wimbs

On November 21, 1991, a district justice entered an order of eviction and a $1,107 money judgment against Judith Wimbs. She subsequently moved to a new address, where Constable Certo levied upon enumerated items of her personal property in satisfaction of the money judgment, and “any and all personal property of the defendant at the address.” Like the other plaintiffs in this action, Wimbs was served with a Notice of Levy that forbade her from removing any levied property without an order from the constable; however, unlike the Bemardis and Cinea, she retained possession of the property up until the time of sale.

Wimbs neither objected to the levy nor attempted to contact her landlord regarding satisfaction of the judgment. Consequently, the levied property was sold to the landlord.

II.

Plaintiffs filed suit on behalf of themselves and all persons living in Allegheny County whose property has been or will be subject to levy and execution before the district justices of Allegheny County, alleging that the levy and execution procedures set forth in the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings Before District Justices (hereinafter “District Justice Rules”) are unconstitutional. The bases of their claims are that the levy procedures deprive judgment debtors of the use of their property prior to sale in violation of the due process clauses of the Fifth and Fourteenth Amendments and work an unlawful seizure in violation of the Fourth Amendment. Plaintiffs prayed for declaratory judgment, injunctive relief, and compensatory and punitive damages.

Plaintiffs initially named six individual defendants: Pennsylvania State Constables Daniel Certo, Fred Taiber, and Patrick Sieg-worth; Bernard Regan, Manager of Constable Services of Allegheny County; Robert Cox, plaintiff Cinea’s former landlord; and Nancy Sobolevitch, Court Administrator of Pennsylvania. Upon plaintiffs’ motion, however, defendants Cox and Siegworth were dismissed from the case prior to trial.

The ease was tried without a jury on February 21 and 22, 1995. The district court entered a directed verdict in favor of defendant Regan, from which order plaintiffs do not appeal. On February 24, the district court entered judgment in favor of all remaining defendants.

On appeal, plaintiffs challenge only the district court’s rulings on the constitutional claims. They raise the following three issues for our review: (1) whether judgment debtors whose property is held outside their possession pending appeal of a district justice’s ruling are afforded a constitutionally adequate post-deprivation remedy; (2) whether the deprivations of property that the plaintiffs suffered during the levy appeals process resulted from the levies or from their evictions; and (3) whether the levies at issue violated the Fourth Amendment protection against unlawful seizures insofar as the official levy form lent apparent authority to the landlords’ unlawful retention of the property of their evicted tenants. Because we believe the second issue is a subpart of the first, we will address issues (1) and (2) together.

III.

The district court had jurisdiction pursuant to 28 U.S.C. § 1343. As this is an appeal from a final order of a district court, we have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

IV.

We review the district court’s findings of fact under a clearly erroneous standard and its findings of law de novo. Louis W. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir.1994).

V.

We turn first to the question of whether plaintiffs were afforded a post-deprivation remedy adequate to satisfy the due process requirements of the Fifth and Fourteenth Amendments. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful maimer.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (citation omitted). However, “‘“[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Id. (citation omitted). On the contrary, it is “ ‘flexible and calls for such procedural protections as the particular situation demands.’ ” Id. (citation omitted). Under the circumstances presented here, we must determine whether the procedures set forth in the District Justice Rules “represent[ ] a fair accommodation of the respective interests of creditor and debtor.” Finberg v. Sullivan, 634 F.2d 50, 58 (3d Cir.1980).

It is axiomatic that the degree of procedural protection required by the Due Process Clause is proportional to the extent of the deprivation. In this case, the extent of the deprivation is in dispute. Plaintiffs argue that they were deprived of their property during the period between levy and execution by the Notice of Levy and the actions of the constables who served those notices, because the Notice and actions indicated to plaintiffs that removal of their property from the site of levying would expose them to the risk of criminal sanctions. Defendants counter that the levies deprived plaintiffs only of the right to alienate their property, and that it was the evictions rather than the levies that deprived plaintiffs of the possession and use of their property.

It may well be the case that plaintiffs, through some combination of the Notice of Levy forms and the statements of the constables, were under the impression that they could not remove their property from the quarters from which they had been evicted. However, neither the text of the forms nor the underlying law supports that assumption.

The Notice of Levy forms served on plaintiffs warned them that they would face criminal penalties if they moved their levied property without the permission of the levying constable. The forms did not absolutely forbid plaintiffs to remove the property from their landlords’ premises, and no plaintiff makes such an allegation. Nor is there any evidence that any plaintiff sought the constable’s permission to move her levied possessions and was refused. Judith Wimbs, the Bernardis, and Betty Bendel apparently did not make any attempt to move their property. Cinea testified that she asked Constable Certo to release her property to her at one point, but that he told her that her former landlord was the one with control over her possessions and that she would have to take it up with him. Cinea does not dispute the truth of this assertion, nor could she do so; her former landlord had changed the locks on the building, and the constable had neither the authority to enter without the landlord’s permission nor a means of entering without the landlord’s key.

Moreover, under Pennsylvania law, a judgment debtor is subject to criminal sanctions only if she

destroys, removes, conceals, encumbers, transfers or otherwise deals with property subject to a security interest or after levy has been made thereon with intent to hinder enforcement of such interest.

18 Pa.C.S.A. § 4110 (emphasis added). A judgment debtor who retains possession of levied property may move her property post-levy as long as she does not do so with intent to conceal her movements or defeat execution and informs the constable of her new location. Commonwealth v. Fisher, 14 Pa. D. & C. 603 (1930).

Plaintiffs argue that the fact that it may take three to four months for the court of common pleas to hear an appeal from a district justice’s decision regarding the propriety of a levy constitutes a violation of due process. We disagree. First, while a constable theoretically has the legal right to take control and possession of levied property, the constable in each of these eases left the levied property on the premises. Thus, if not for the eviction, each plaintiff would have retained the use and possession of her property pending appeal from the levy. Although a levy still works a deprivation of property even if the judgment debtor retains possession, Montgomery v. Green, 1989 WL 121868, *4 (E.D.Pa.1989)(not reported in F.Supp.), the fact that the judgment debtors retain possession and use of their property renders the deprivation slight and reduces the amount of process due.

Of course, a constable has the right to remove the levied property from the possession of the judgment debtor at the time of the imposition of the levy. As none of the named plaintiffs suffered this type of deprivation, however, they do not have standing to challenge the rules on this ground. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992)(holding that to meet the “irreducible constitutional minimum” of standing, a plaintiff must establish, inter alia, that she has personally suffered an “ ‘injury in fact’ ” that will be redressed by a favorable decision).

Under the circumstances of this case, there is no question that the procedures provided satisfy the requirement of the due process clause. The existing rules provide fairly extensive post-levy procedural protections for judgment debtors. The levying constable must serve on the judgment debtor a notice which explains the nature of the levy and informs the debtor of her rights and liabilities. R.409. This notice informs the debtor that certain types of property are exempt from levy and that she is entitled to a $300 exemption, and explains the procedures for claiming the exemption, appealing from the levy, and obtaining free legal assistance if necessary. Id. If the debtor fails to claim the monetary exemption, the executing officer must set aside sufficient property to constitute a $300 exemption in kind or, if in-kind division is not possible, $300 in proceeds from the sale. R.408.

The executing officer must give notice of the sale by mailing handbills to the judgment debtor and to the plaintiff at their last known addresses. In addition, the executing officer must post handbills in the office of the district justice who issued the order of execution, at the place of levy, and at the place of sale, at least six days prior to the sale. R.412.

The District Justice Rules provide for two ways of challenging the levy prior to sale of the goods. First, the judgment debtor can file an objection in the office of the district justice on the ground that the levy is “illegal or excessive compared to the amount of the judgment, interest, and probable costs.” R.413(l). Second, a third party with an interest in all or part of the property levied can file a claim. R.413(2). The filing of such an objection stays the sale of the property pending a hearing pursuant to Rule 420. R.413.

A district justice must hold a hearing on such an objection not later than five days after it is filed, after notifying all parties “by telephone or other timely means of communication.” R.421. The justice must then rule on the objection not later than three days after the hearing. Id. In making such ruling, the district justice may, among other things,

(1) Reappraise or redesignate property appraised or designated by the executing officer, or order inclusion in the levy of property set aside by that officer;
(2) Stay or order the abandonment of the levy in whole or in part, or release property from the levy;
(3) Stay or prohibit a sale of all or part of the property levied upon;

R.420(B). Any stay of the execution proceedings ordered by the district justice is effective immediately. R.421(D). Other orders do not take effect for ten days, so as to allow an aggrieved party in interest to appeal. Id.

To appeal from a Rule 420 ruling of a district justice, the aggrieved party must file a statement of objection with the district justice within ten days of the order or determination. R.1016, Unless and until the court of common pleas orders otherwise, the filing of an objection operates as a stay.on any execution proceedings. R.1020. The court of common pleas reviews the district justice’s determination de novo. R.1019B.

In reviewing these procedural protections, the question we must ask is whether they “represent ] a fair accommodation of the respective interests of creditor and debtor.” Finberg v. Sullivan, 634 F.2d 50, 58 (3d Cir.1980). We easily conclude that they do, especially in light of the fact that the plaintiffs already had an opportunity to be heard at the original landlord-tenant proceeding and thus clearly had notice of the money judgment against them. The rules outlined above provide ample notice of the levy and execution proceedings, explain the judgment debtor’s rights and liabilities, set forth the procedures for filing objections and provide for prompt hearings on those objections. They protect the interest of the judgment creditor by keeping the levy in place during the appeals process, thus preventing the judgment debtor from selling or secreting the property; and they protect the interests of the judgment debtor by providing a forum for a hearing and staying execution of the levy until its validity has been determined. That the appeals process may be delayed at the court of common pleas level is attributable to the operations of that court, not the procedural rules at the district justice level, and in any event, does not rise to the level of a constitutional violation. Plaintiffs’ challenge is to the District Justice Rules governing levy and execution proceedings. What happens at the court of common pleas is beyond the province of those rules.

Plaintiffs argue that the automatic stay provision of Rule 1020, which prevents all district justice orders affecting “execution proceedings” from taking effect once an appeal has been filed, infringes the due process rights of judgment debtors insofar as it prevents enforcement of orders releasing their property from levy during the weeks or months appeal is pending before the court of common pleas. Had the levying constables in this case taken actual physical possession of the judgment debtors’ property, rather than leaving it in the place of levy, this argument might have some merit. Under those circumstances, the automatic stay provision of Rule 1020 might infringe upon the due process rights of judgment debtors because it would completely deprive them of all use and possession of their property pending appeal, despite a district justice order in their favor. However, that issue is not before us, and we do not decide it here. We conclude simply that where, as here, (1) the levying constable does not take physical possession of the property of a judgment debtor but rather leaves it (theoretically at least) in the possession of the judgment debtor, (2) a district justice issues an order releasing the judgment debtor’s property from levy, and (3) that order is stayed pursuant to Rule 1020 pending appeal, the fact that several weeks or months may elapse before the court of common pleas finally determines the validity of the order on appeal does not render the automatic stay provision of the District Justice Rules violative of due process.

VI.

Plaintiffs second argument on appeal is that the levies at issue violated the Fourth Amendment protection against unlawful seizures insofar as the official levy form lent apparent authority to the landlords’ unlawful retention of the property of their evicted tenants. Here again, we disagree. While the Fourth Amendment protects property rights outside the criminal search and seizure context, Soldal v. Cook County, Illinois, 506 U.S. 56, 60, 113 S.Ct. 538, 543, 121 L.Ed.2d 450 (1992), a seizure of property only violates the Fourth Amendment if it is unreasonable. Id. at 71, 113 S.Ct. at 549 (“‘reasonableness is still the ultimate standard’ under the Fourth Amendment”) (citation omitted).

In this case, the constables had authority to levy on plaintiffs’ property in the form of an order of execution from a district justice. As the Supreme Court noted in Soldal, making a showing of unreasonableness when the officer in question was acting pursuant to a court order “would be a laborious task indeed.” Id. Moreover, that the levies coincided with plaintiffs’ evictions does not transform the levies into unreasonable seizures in violation of the Fourth Amendment. While we recognize the hardship that plaintiffs suffered as a result of the combination of levy and eviction, we cannot conclude that either the constables or the rules under which they acted violate the Constitution.

VII.

For the foregoing reasons, we will affirm the judgment of the district court.

STAPLETON, Circuit Judge,

concurring:

As the court observes, this case does not present a substantial constitutional issue. My reasons for so concluding are somewhat different, however, than those assigned in the court’s opinion.

A levy is a seizure under color of state law. See, e.g., 15 Pennsylvania Law Encyclopedia, Execution §§ 61, 62 (1959). Such a seizure constitutes deprivation of a property interest for due process purposes whether or not the judgment debtor may ask the permission of the seizing officer to move the property and whether or not the seizing officer may choose to allow the judgment debtor to continue to exercise some of the attributes of ownership. See Finberg v. Sullivan, 634 F.2d 50, 59-60 (3d Cir.1980). As the court’s opinion demonstrates, however, appropriate process in the factual context of this case was afforded under the District Justice Rules. The levy was a court authorized seizure based on a duly entered final judgment and an opportunity was afforded to secure relief from an erroneous or excessive seizure within a maximum of eight days. This process exceeds the minimum process due under the Constitution as interpreted in Finberg.

None of the appellants here is in a position to advance the only arguable constitutional issue presented by the District Justice Rules. If Rule 1020 were inteipreted as automati-eally precluding a judgment debtor with a meritorious claim for relief from an erroneous or excessive seizure from securing that relief prior to a final merits decision in the Court of Common Pleas, a judgment debtor adversely affected by the application of the Rule as so interpreted would be able to raise a substantial constitutional issue. The stay provided by Rule 1020, however, is triggered only by the filing of “a statement of objection” — i.e., an appeal — with the Court of Common Pleas. Thus, this substantial issue would be presented for decision only if an appellant had been successful on her objection before the district justice but the release of her property had been stayed under Rule 1020 when the landlord appealed to that court. No one other than Barbara Cinea in this ease filed an objection with a District Justice. Cinea filed an objection and secured an order releasing some of her property. The district court’s findings of fact, however, indicate that the landlord appealed only her mother’s judgment and the record evidences no appeal from the order releasing a portion of her own personal property. Because no one involved in this case was adversely affected by Rule 1020, the court properly expresses no opinion on its interpretation or constitutionality.

      . Cinea testified before the district court that the district justice "didn’t do anything" with respect to Cinea's objection, and that Cinea appealed. Tr. 126. Cinea argues on appeal, however, that the district justice ruled in her favor. Appellants’ Brief, p. 8. The district court’s Findings of Fact does not clarify this point, because it states merely that the district justice held a hearing on Cinea’s claim and one on her mother’s claim, and subsequently ordered the release of "some of the property.” App. 36. Our review of the district justice’s property release order was similarly unavailing; that document simply releases "all” property except certain enumerated items, without indicating whether the property released belonged to Cinea or to her mother.

      . The final plaintiff in this matter, Betty Bendel, did not join in the appeal and thus is not discussed in this opinion.

      . Plaintiffs also asserted state-law claims for wrongful conversion and abuse of process against the constables, but they do not challenge the district court's disposition of these claims on appeal.

      . Defendants Certo and Taiber did not enter appearances with respect to this appeal, apparently having settled. Thus, the State Court Administrator, who is generally responsible for "the prompt and proper disposition of the business of all courts and justices of the peace,” Penn. Const. art. IV, § 10(a), remains the sole appellee.

      . We question the relevance of evidence of the constables' behavior to the issue of whether the forms and procedures violate the due process clause, and our discussion of such evidence by no means reflects a determination that it is relevant.

      . The notice states as follows: Your real estate cannot be taken on this execution, nor can perishable personal property or personal property which is intangible such as your bank accounts. There are some other types of property which are exempt from execution under State and Federal law, such as wearing apparel, bibles, school books, sewing machines, military uniforms and equipment, most wages and unemployment compensation, social security benefits, certain retirement funds and accounts, certain veteran and aimed forces benefits, certain insurance proceeds and such other exemptions as may be provided by law. R.409(2).

      . Rule 1020 provides:
      Until further order of the court of common pleas, receipt by the district justice of the statement of objection shall operate as a stay of any execution proceedings that may be affected by the proceedings on the statement.

      . It is not necessary to construe Rule 1020 in this manner. Rule 1020 provides for “a stay of any execution proceedings that may be affected by the” appeal. At the time the Rule comes into play, the levy has been completed and, of what remains to be done, the execution sale proceedings would seem to be the most likely intended object of the stay. As so construed, Rule 1020 would serve only to protect a judgment debtor's property from sale when he or she has appealed from a decision of the district justice in favor of the creditor. Given that this is the most natural reading and that a contrary one would raise substantial issues trader the United States Constitution, I believe the Supreme Court of Pennsylvania would be more likely to adopt this interpretation.