                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        October 3, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
THELMA ANDERSEN, o/b/o
Terry D. Andersen, deceased,

             Plaintiff-Appellant,

v.                                                         No. 12-4181
                                                  (D.C. No. 2:10-CV-00872-CW)
CAROLYN W. COLVIN, Acting                                    (D. Utah)
Commissioner of Social Security
Administration,*

             Defendant-Appellee.

                            ORDER AND JUDGMENT**

Before HOLMES, HOLLOWAY, and BACHARACH, Circuit Judges.

      Thelma Andersen, as surviving spouse of Terry D. Andersen, appeals from the

order entered by the district court affirming the Social Security Commissioner’s

*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
decision to deny her husband’s application for disability insurance benefits.

Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

                                  I. BACKGROUND

       The administrative record indicates that Mr. Andersen suffered from

significant heart and lung conditions prior to his date last insured of December 31,

1998. Mr. Andersen claimed that he was unable to work since May 4, 1993, as a

result of these conditions, primarily due to fatigue and shortness of breath. But in

April 2002, the administrative law judge (ALJ) denied Mr. Andersen’s application

for disability insurance benefits. Following unsuccessful appeals to the Appeals

Council and the United States District Court for the District of Utah, Mr. Andersen

challenged the ALJ’s adverse decision in this court. In that prior appeal, we

concluded that “the ALJ erred in failing to properly determine the weight ultimately

assigned to Mr. Andersen’s treating physicians’ opinions.” Andersen v. Astrue,

319 F. App’x 712, 718 (10th Cir. 2009). We therefore remanded the case so that the

ALJ could reevaluate the opinions of Mr. Andersen’s treating physicians (Dr. Wren,

Dr. Woods, Dr. Hodges, and Dr. Mackie1) and perform a proper sequential evaluation

of their opinions in accordance with the controlling regulations and this court’s case

law.

       On January 27, 2010, after receiving additional medical evidence and

conducting another hearing at which Mr. Andersen’s wife testified (Mr. Andersen
1
       The first three doctors are internists; Dr. Mackie is a cardiologist.

                                           -2-
died in January 2007 as a result of end stage congestive heart failure), the ALJ issued

a decision in which he again denied Mr. Andersen’s application for disability

insurance benefits. In his decision, the ALJ followed the five-step sequential

evaluation process for determining whether an individual is disabled. See

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (summarizing five-step

process). First, at step one, the ALJ found that Mr. Andersen had not engaged in

substantial gainful activity from his alleged onset date through his date last insured.

The ALJ then found, at step two, that Mr. Andersen suffered from the following

severe impairments through his date last insured:

      history of mitral valve disease with history of rheumatic heart disease;
      an enlarged heart; open heart mitral valve repairs in 1970 and 1976;
      mitral stenosis, status post mitral valve replacement with prosthetic
      St. Judge mitral valve in 1984; aortic sclerosis with moderate aortic
      stenosis and moderately severe aortic regurgitation; moderately severe
      tricuspid regurgitation with pulmonary artery hypertension; atrial
      fibrillation; chronic congestive heart failure with progressive dyspnea
      on exertion; chronic obstructive pulmonary disease; diffuse pulmonary
      fibrosis, secondary to a long history of smoking cigarettes; and
      mononuclear vision (blindness in left eye) due to stroke.

Admin. R. at 337.2

      The ALJ found, at step three, however, that Mr. Andersen did not have an

impairment or combination of impairments that met or equaled one of the per se

disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Turning

to steps four and five, and after reevaluating the opinions of Dr. Wren, Dr. Woods,
2
      The administrative record is contained in Volumes I and II of the Appendix to
Appellant’s Opening Brief.

                                          -3-
Dr. Hodges, and Dr. Mackie, the ALJ next found that Mr. Andersen had the residual

functional capacity (RFC) to perform a limited range of light, unskilled work from

his alleged onset date through his date last insured. Given this RFC, the ALJ then

found, at step four, that Mr. Andersen did not have the RFC to perform any of his

past relevant work. However, at step five, the ALJ determined that there were light

jobs that existed in significant numbers in the national economy that Mr. Andersen

could have performed through his date last insured. The ALJ therefore determined

that Mr. Andersen was not under a disability during the relevant time period of May

4, 1993, through December 31, 1998.

      In June 2010, the Appeals Council denied Mrs. Andersen’s request for review,

rendering the ALJ’s decision the final decision of the Commissioner. See Bowman v.

Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). Mrs. Andersen then filed this action in

federal court on behalf of her husband, and, in August 2012, the district court entered

an order affirming the ALJ’s decision. This appeal followed.

                                  II. DISCUSSION

      On appeal, Mrs. Andersen argues that the ALJ committed four errors in his

decision on remand. First, she claims the ALJ erred in assessing Mr. Andersen’s

RFC because: (a) the ALJ failed to take into account his left ventricular hypokinesis;

and (b) the ALJ failed to accord the opinions of his treating physicians controlling

weight or, in the alternative, greater weight than the opinion of the nonexamining

state agency physician. Second, she claims the ALJ erred in posing an inadequate

                                         -4-
hypothetical question to the vocational expert at the hearing conducted during the

remand proceedings. Third, she claims the ALJ erred by failing to find that

Mr. Andersen met or equaled the listing for chronic heart failure, Listing 4.02. And

finally, she claims the ALJ erred in assessing her and her husband’s credibility. We

will address these contentions in the order presented.

      A. Standard of Review

      In our review of the ALJ’s decision, we must determine if the ALJ has

“applied the correct legal standards” and also if the ALJ’s “factual findings are

supported by substantial evidence in the record viewed as a whole.” Frantz v.

Astrue, 509 F.3d 1299, 1300 (10th Cir. 2007) (internal quotation marks omitted).

“Substantial evidence is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. It requires more than a scintilla, but less than a

preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation and

internal quotation marks omitted). A decision is not based on substantial evidence “if

it is overwhelmed by other evidence in the record.” Wall v. Astrue, 561 F.3d 1048,

1052 (10th Cir. 2009) (internal quotation marks omitted).

      But in reviewing the ALJ’s decision, “we may neither reweigh the evidence

nor substitute our judgment for that of the agency.” Frantz, 509 F.3d at 1300

(internal quotation marks omitted). As a result, “[t]he possibility of drawing two

inconsistent conclusions from the evidence does not prevent an administrative

agency’s findings from being supported by substantial evidence.” Lax, 489 F.3d at

                                          -5-
1084 (internal quotation marks omitted). In other words, “[w]e may not displace the

agenc[y’s] choice between two fairly conflicting views, even though the court would

justifiably have made a different choice had the matter been before it de novo.” Id.

(second alteration in original) (internal quotation marks omitted). Instead, where

substantial evidence supports an ALJ’s decision, “we may not reweigh the evidence

or try the issues de novo in order to advance a different view.” Wall, 561 F.3d at

1069 (internal quotation marks omitted).

      B. Left Ventricular Hypokinesis

      Mrs. Andersen claims the ALJ committed reversible error because, “[i]n spite

of the Commissioner’s mandate that the ALJ consider all of a claimant’s medically

determinable impairments, . . . there is no indication in the ALJ’s decision that he

took into account Plaintiff’s left ventricular hypokinesis in ruling upon his

disability.” Aplt. Opening Br. at 10-11. According to Mrs. Andersen:

      Such an oversight was not only in contravention of the Commissioner’s
      regulations but ignored a significant impairment that, when combined
      with the damage to two other chambers of Plaintiff’s heart, rendered
      him unable to function in the workplace. There is no question that when
      the left ventricle of an individual’s heart is compromised, it has a
      significant impact upon a person’s ability to engage in normal daily
      activities for the left ventricle pumps oxygenated blood to the rest of the
      body. Said left ventricle dysfunction was noted throughout Plaintiff’s
      medical records and was the obvious cause of his progressive fatigue
      and weakness and dyspnea (shortness of breath) with decreased exercise
      tolerance.

Id. at 11 (record citations omitted).

                                           -6-
       We agree with the Commissioner that Mrs. Andersen’s argument is belied by

the ALJ’s decision. As the Commissioner has succinctly explained:

              Although the ALJ did not explicitly discuss left ventricular
       hypokinesis, the ALJ adequately accounted for its limiting effects by
       finding Andersen had as a severe impairment “chronic congestive heart
       failure with progressive dyspnea [shortness of breath] on exertion.”
       (App. 337). Congestive heart failure “means that your heart can’t pump
       enough blood to meet your body’s needs.” MayoClinic.com, Heart
       failure, http://www.mayoclinic.com/health/heart-failure/DS00061 (last
       visited Mar. 5, 2013). It can be caused by the fact that the left ventricle
       cannot contract vigorously, and symptoms include shortness of breath,
       fatigue, and weakness. See id. (follow “Symptoms” hyperlink and
       “Causes” hyperlink). Thus, by finding congestive heart failure to be
       severe, and considering its effects on Andersen’s ability to work, the
       ALJ adequately accounted for Andersen’s ventricular dysfunction.

Id. at 33-34 (alteration in original).

       We also note that the ALJ discussed evidence of Mr. Andersen’s left

ventricular dysfunction when determining his residual functional capacity. See

Admin. R. at 342 (noting “moderate global left ventricular hypokinesis”), 343 (noting

“progressive left ventricular dysfunction”), 353 (noting “moderate global

hypokinesis”). The ALJ also discussed the limitations that Mr. Andersen alleged

were caused by his left ventricular dysfunction, including fatigue, weakness, and

shortness of breath.

       Finally, at step two of the sequential evaluation process, the ALJ stated that he

“carefully reviewed and considered all the evidence, regardless of whether it is cited

specifically” in his decision. Admin. R. at 337. This court’s “general practice . . . is

to take a lower tribunal at its word when it declares that it has considered a matter.”

                                          -7-
Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (internal quotation marks

omitted).

      C. Evaluation of Treating Physician Opinions

      “Treating source medical opinions are [] entitled to deference,” and must

either be given controlling weight or assigned some lessor weight “using all of the

factors provided in 20 C.F.R. 404.1527.” SSR 96-2p, 1996 WL 374188, at *4 (July

2, 1996). To ensure that these opinions receive proper deference, an ALJ reviewing

the opinions of treating sources must engage in a sequential analysis. Watkins v.

Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

      First, an ALJ must determine whether the opinion deserves controlling weight.

Id. Controlling weight must be given if the opinion is both supported by medically

acceptable clinical and laboratory diagnostic techniques and not inconsistent with the

other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2). If both of these

conditions are met, no other factors need be considered and the inquiry is at an end.

See id.; Watkins, 350 F.3d at 1300.

      If one or both of these conditions is lacking, an ALJ is not free to simply

disregard the opinion or pick and choose which portions to adopt. Instead, the ALJ

must proceed to a second determination, where the ALJ must both: (1) weigh the

opinion “using all of the factors provided in 20 C.F.R. § 404.1527”; and (2) “give

good reasons in the . . . decision for the weight [the ALJ] ultimately assigns the

opinion.” Watkins, 350 F.3d at 1300-01 (internal quotation marks and alteration

                                          -8-
omitted). Further, if the ALJ rejects a treating physician’s opinion completely, he

must give specific and legitimate reasons for doing so. Id. at 1301.

      To support his finding that Mr. Andersen could perform a limited range of

light work during the relevant time period, the ALJ found that: (1) neither Dr. Wren,

Dr. Woods, Dr. Hodges nor Dr. Mackie was Mr. Andersen’s treating physician

during the relevant time period; (2) even if any of them were treating physicians,

none of their opinions to the effect that Mr. Andersen was unable to work at any

exertional level during the relevant time period was entitled to controlling weight;

and (3) after considering the factors set forth in 20 C.F.R. § 404.1527(c), each of

their opinions was entitled to less weight than the opinion of the nonexamining state

agency physician who reviewed Mr. Andersen’s medical records and determined in

November 2000 that he had the RFC to perform light work activity through his date

last insured. See Admin. R. at 347-58. We agree with the Commissioner that the

ALJ articulated numerous specific and legitimate reasons in his extremely thorough

decision for giving less weight to the opinions of Dr. Wren, Dr. Woods, Dr. Hodges,

and Dr. Mackie, and we see no reason to reiterate the ALJ’s extensive analysis of

those opinions here. Having concluded that the ALJ properly discounted the

opinions of these doctors and properly gave more weight to the opinion of the state

agency physician, we also do not need to address the treating physician/controlling

weight issues.

                                         -9-
       D. Hypothetical Question to Vocational Expert

       Mrs. Andersen claims the ALJ erred by posing an inadequate hypothetical

question to the vocational expert at the hearing held before the ALJ in November

2009. We disagree. As the Commissioner has correctly explained:

             [Mrs. Andersen’s] argument . . . is simply a reiteration of her
       previous arguments: That the ALJ’s hypothetical question was
       incomplete because it did not consider his ventricular hypokinesis and
       did not contain the limitations identified by several physicians . . . .
       Because the ALJ reasonably considered Andersen’s ventricular
       dysfunction and reasonably discounted the doctors’ opinions, the ALJ
       was entitled to rely on the vocational expert’s testimony at step five.

Aplee. Br. at 56.

       E. Listing 4.02
       Mrs. Andersen claims the ALJ erred at step three of the sequential evaluation

process by finding that her husband did not meet or equal the listing for “chronic

heart failure,” Listing 4.02, and she relies on the version of Listing 4.02 that was in

effect in 1998. But the version of Listing 4.02 that was in effect in 1998 is not

applicable to this case. Instead, the current version of Listing 4.02, which was

enacted in 2006, applies to this case. See Revised Medical Criteria for Evaluating

Cardiovascular Impairments, 71 Fed. Reg. 2312, 2313 (Jan. 13, 2006) (“In those

cases decided by a court after the effective date of [these revised] rules, where the

court reverses the Commissioner’s final decision and remands the case for further

administrative proceedings, on remand, we will apply the provisions of these final

rules to the entire period at issue in the claim.”).

                                           - 10 -
      In his decision, the ALJ found that Mr. Andersen did not meet or equal the

current version of Listing 4.02, and Mrs. Andersen has failed to challenge that ruling.

Moreover, as the Commissioner has pointed out, because Mr. Andersen was not

bedridden during the relevant time period, he could not meet or equal the version of

Listing 4.02 that was in effect in 1998 in any event. See Aplee. Br. at 29-30.

      F. The ALJ’s Adverse Credibility Determination

      “Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial evidence.”

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks

omitted). In his decision, the ALJ found that Mr. and Mrs. Andersen’s allegations

concerning the fatigue and breathing problems related to Mr. Andersen’s heart and

lung problems were not credible in terms of the limiting effects of those symptoms.

We conclude that the ALJ’s adverse credibility determination is supported by

substantial evidence in the record on which the ALJ relied, specifically: (1) the

paucity of medical treatment that Mr. Andersen received from Dr. Mackie and his

other doctors during the relevant time period; (2) the vague nature of much of

Mr. and Mrs. Andersen’s hearing testimony; (3) the fact that Mr. Andersen continued

to smoke despite his doctors’ recommendations that he quit smoking; and (4) the fact

that Mr. Andersen was not always compliant with his doctors’ recommendations.

                                         - 11 -
The judgment of the district court is affirmed.

                                           Entered for the Court

                                           Jerome A. Holmes
                                           Circuit Judge

                                  - 12 -


37 F.3d 858
Charles D. SCANIO, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 1733, Docket 94-2002.
United States Court of Appeals,Second Circuit.
Argued May 26, 1994.Decided Oct. 11, 1994.

Pierce, Circuit Judge, dissented and filed opinion.
Jeffrey M. Blum, Williamsville, NY, for petitioner-appellant.
William J. Knapp, Asst. U.S. Atty. for W.D.N.Y., Buffalo, NY (Patrick H. NeMoyer, U.S. Atty., on the brief), for respondent-appellee.
Before VAN GRAAFEILAND, PIERCE, and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge:

1
Petitioner-appellant Charles D. Scanio appeals from a judgment of the United States District Court for the Western District of New York (Telesca, C.J.), denying petitioner's motion for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2255 (1988).  The district court denied the motion and dismissed the petition on the ground that the petition was untimely when filed because Scanio had completed his sentence and was no longer "in custody" within the meaning of 28 U.S.C. Sec. 2255.  On appeal, Scanio challenges the district court's conclusion that his petition was untimely.

2
For the reasons set forth below, we affirm.

BACKGROUND

3
On November 1, 1988, following a jury trial, Scanio was convicted of one count of structuring a currency transaction in violation of 31 U.S.C. Secs. 5324(3) and 5322(a).  He was sentenced to one year imprisonment and two years' supervised release.  Scanio's conviction was affirmed on appeal.  United States v. Scanio, 900 F.2d 485 (2d Cir.1990).  Scanio reported to prison on November 30, 1990.

4
While incarcerated, Scanio became eligible to spend the last third of his prison term in a community halfway house, and on July 29, 1991, he was transferred to the Salvation Army Adult Rehabilitation Center, Community Correction Center (the "Salvation Army") to serve his remaining prison time.  Thereafter, on November 27, 1991, Scanio was released from the Salvation Army facility and began his term of supervised release.

5
On November 29, 1993, Scanio filed the instant petition in which he moved to set aside his conviction and vacate his sentence, alleging ineffective assistance of counsel at his state court trial.  On December 6, 1993, the district court dismissed the petition.  The court found that Scanio's term of supervised release expired at midnight on November 26, 1993, two years from the date he was released from the Salvation Army facility, and because Scanio had completed his sentence when he filed his petition on November 29, 1993, it was untimely.

6
Scanio now appeals.

DISCUSSION

7
On appeal, Scanio argues that even if the terms of his sentence were completed on November 26, 1993, the district court erred in dismissing his habeas corpus petition as untimely.  Scanio maintains that given the clerk's office in the district court was closed by Order of Chief Judge Michael A. Telesca on that day, Fed.R.Civ.P. 6(a), which operates to expand the period within which to file a motion, applied to make his claim timely.  The government, on the other hand, contends that the district court properly dismissed the habeas petition because it lacked jurisdiction under 28 U.S.C. Sec. 2255 to consider Scanio's claim.  We agree with the government's position.

8
We review the district court's factual findings for clear error, see Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985);  United States v. Springer, 946 F.2d 1012, 1015 (2d Cir.1991), and we review questions of law de novo, see Anderson v. McElroy, 953 F.2d 803, 805 (2d Cir.1992);  United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir.1991).  As a preliminary matter, we find ample support in the record for the district court's determination that Scanio completed the terms of his sentence on November 26, 1993.  The record indicates that Scanio was released from incarceration on November 27, 1991.  His two-year term of supervised release therefore commenced on November 27, 1991 and expired at midnight on November 26, 1993.  Thus, we next consider whether Scanio met the requirements for filing a habeas corpus petition.

9
Title 28 U.S.C. Sec. 2255 states in pertinent part:

10
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.  (emphasis added).

11
In order to invoke habeas corpus review by a federal court, the petitioner must satisfy the jurisdictional "in custody" requirement of 28 U.S.C. Sec. 2255.  See United States v. Brilliant, 274 F.2d 618, 620 (2d Cir.)  ("A district court is without jurisdiction to entertain a writ of habeas corpus or a Sec. 2255 motion if the relator or movant is not in custody."), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960).  Indeed, the Supreme Court stated in Carafas v. LaVallee that "[t]he federal habeas corpus statute requires that the applicant must be 'in custody' when the application for habeas corpus is filed."  391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968) (emphasis added).

12
Although physical confinement is not necessary in order for a prisoner to challenge his sentence, see Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963) (holding prisoner on parole remains "in custody"), the Supreme Court has never gone so far as to hold that "a habeas petitioner may be 'in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed," Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (emphasis in original).  The rationale in such a case is that the "habeas petitioner suffers no present restraint from a conviction."  Id. at 492, 109 S.Ct. at 1926;  see, e.g., Ward v. Knoblock, 738 F.2d 134, 138-39 (6th Cir.1984) (holding that to confer habeas jurisdiction on petitioner, there must be significant deprivation of his liberty), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 974 (1985).

13
In sum, the habeas corpus statute confers jurisdiction to district courts to entertain habeas petitions for relief solely from persons who satisfy the status or condition of being "in custody" at the time the petition is filed, and a petitioner under supervised release may be considered "in custody."

14
Because in the instant matter Scanio filed his habeas petition on November 29, 1993, three days after his term of supervised release expired, we find that at the time of the filing, he was not "in custody."   See Maleng, 490 U.S. at 491, 109 S.Ct. at 1925.   Under these circumstances, Scanio was jurisdictionally barred from asserting his habeas corpus claim.

15
We reject Scanio's argument that Fed.R.Civ.P. 6(a) should be applied in this case to expand the time period within which to file his habeas motion.  Fed.R.Civ.P. 6(a) provides that where the last day of a time period for filing a court paper is a Saturday, Sunday, holiday, or a day on which the clerk's office is inaccessible, the period runs until the end of the next business day.  Clearly, Fed.R.Civ.P. 6(a) does not extend the jurisdiction of the district court.  See Fed.R.Civ.P. 82 ("These rules shall not be construed to extend or limit the jurisdiction of the United States district courts....").  Fed.R.Civ.P. 6(a) is a procedural rule that governs procedural matters and operates to enlarge certain filing periods.

16
The "in custody" requirement of Sec. 2255 is more than a filing period;  it is a status or condition that cannot be altered by a procedural rule.  Either Scanio was "in custody" on November 29, 1993, or he was not.  Because we find that Scanio was not "in custody," we hold that the district court lacked jurisdiction to entertain his claim.

17
We have considered all of Scanio's remaining arguments and find them to be without merit.  Accordingly, we affirm the district court's dismissal of Scanio's habeas corpus petition.

CONCLUSION

18
Based on the foregoing, we affirm the judgment of the district court.

PIERCE, Circuit Judge, dissenting:

19
This is a case concerning jurisdiction and it necessarily implicates the right of access to the courts.  In my view, the majority has given an incorrect and needlessly narrow interpretation to applicable principles, with the result that appellant will be denied his day in court.  I respectfully disagree and dissent.

20
Scanio was prosecuted in the Western District of New York for structuring a currency transaction in violation of 31 U.S.C. Secs. 5324(3) and 5322(a).  After trial by jury, he was convicted and sentenced to a one year term of imprisonment and two years of supervised release.  Scanio appealed to this Court and in an unanimous opinion, the conviction was affirmed.  United States v. Scanio, 900 F.2d 485 (2d Cir.1990) (Pierce, J.).

21
Scanio began serving the prison portion of his sentence on November 30, 1990.  He remained in prison until July 29, 1991, when he was transferred to the Salvation Army Adult Rehabilitation Center (hereinafter, the "Salvation Army") to serve the remainder of his one-year term of incarceration, which was to end on November 29, 1991.  The Salvation Army released him early, on November 27, 1991, the day before Thanksgiving Day.  Upon release from the Salvation Army facility, Scanio commenced the two-year supervised release portion of his sentence.

22
Scanio was nearing the end of the period of supervised release when his new attorney sought to file a second petition pursuant to 28 U.S.C. Sec. 2255, this time seeking to set aside the conviction, asserting for the first time ineffective assistance of trial counsel.  On Friday, November 26, 1993, counsel went to the federal courthouse in Rochester, New York, to file the subject habeas petition.  He was informed that the Clerk's Office was closed in observance of the Thanksgiving holiday.1  Thus, despite his attempt, counsel was unable to file Scanio's petition on Friday, November 26, 1993 at the courthouse.  Counsel returned to the courthouse the following Monday, November 29, 1993, and filed the petition that day.  Scanio's petition was therefore filed on the first day the courthouse and Clerk's Office were open following the holidays and the weekend.

23
The petition was dismissed one week later by the district judge as untimely, on the ground that Scanio was no longer "in custody," as required by Sec. 2255.  In a one page order, the district judge, without stating what evidence he relied upon, ruled:  "Petitioner's term of probation terminated November 26, 1993.  This motion was filed November 29, 1993.  At the time the motion was filed, all terms of Petitioner's sentence had been completed."  (Emphasis added).

24
On this appeal, the appellant contends, inter alia, that (1) the district court's determination that his sentence expired on November 26, 1993 is erroneous and based on a misapplication of the law, and, in any event, (2) the petition was timely filed on November 29, 1993, pursuant to Fed.R.Civ.P. 6(a), which excludes weekends and holidays and other days when the court is inaccessible in determining if filing is timely.

25
I cannot agree with the majority that the district court did not err in summarily dismissing this petition.  The majority states that the district court had "ample support" in the record for the determination that Scanio completed the terms of his sentence on November 26, 1993, and, thus, was not "in custody" for habeas purposes on November 29, 1993.  In my view, the record contains insufficient evidence to support such a conclusion.

26
The majority's argument is flawed because it makes an unsupportable assumption:  that because Scanio was released early by the Salvation Army on November 27, 1991, Scanio's sentence was reduced accordingly.2  For purposes of determining Scanio's period of custody,3 I believe it is incorrect to conclude that Scanio's three-year sentence expired early simply because he was "released" early from the incarceration phase of his sentence by the Salvation Army.

27
As the majority states and the record indicates, Scanio's one-year incarceration phase of his sentence began on November 30, 1990.4  We could assume that the district judge rejected the evidence supporting this fact, and, further, hold that because the district court's factual findings must be reviewed for clear error, we should not disturb this "factual finding."   But that response would entail a misreading of applicable legal principles.  Although normally a district judge's findings of fact are to be reviewed for clear error, see Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985), that standard is inappropriate where, as here, it is unclear how the judge arrived at his factual conclusions.  See Grimo v. Blue Cross/Blue Shield, 34 F.3d 148, 152-53 (2d Cir.1994) (factual record was inadequate for appellate review of question presented);  Monarch Beverage Co., Inc. v. Tyfield Importers, Inc., 823 F.2d 1187, 1192 (7th Cir.1987) ("the findings of fact must include as many of the subsidiary facts as are necessary to disclose to the reviewing court the steps by which the trial court reached its ultimate conclusion on each factual issue") (quotations and citations omitted);  Fogarty v. Piper, 767 F.2d 513, 515 (8th Cir.1985) (appellate court unable to review because district court made inadequate findings of fact);  see also Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 295 (3d Cir.1991) (requiring district court to clearly state basis of findings);  cf. Demarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 1185-86, 39 L.Ed.2d 501 (1974) (per curiam) (appellate court should not make factual findings when the district court fails to make such findings).  Herein, it is unclear whether the district judge's ultimate conclusions were based on facts established in the record or on a misapplication of the law, e.g., that Scanio's early release meant he was not "in custody" on November 29, 1993 when the three year sentence would ordinarily have ended.  I believe that the district judge's ruling lacks support in the record and was based on a misapplication of legal principles.

28
It is undisputed that the Salvation Army "released" Scanio on November 27, 1991, but his early release from confinement does not affect the calculation of when Scanio's overall sentence expired.  I have found no support for the proposition that an early "release" reduces the length of the overall sentence;  indeed, the courts have consistently held to the contrary.  See Stabile v. United States Bureau of Prisons, 834 F.2d 305, 306 (2d Cir.1987) (per curiam) (although "duration of parole supervision [is reduced], ... the length of the sentence" is not);  Miller v. Taylor, 313 F.2d 21, 22 (10th Cir.1962) (even though a court order permitted a premature release, this did not affect length of prisoner's sentence), cert. denied, 374 U.S. 837, 83 S.Ct. 1887, 10 L.Ed.2d 1058 (1963);  Frierson v. Rogers, 289 F.2d 234, 235 (5th Cir.1961) (per curiam) (although good time credit reduces the time of confinement, it does not reduce the length of a sentence);  Rowe v. Nicholson, 78 F.2d 468, 469 (4th Cir.)  (release of a prisoner prior to his serving his maximum sentence is merely "an extension of the prison walls" and not the expiration of his sentence) (quotations and citations omitted), cert. denied, 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405 (1935).  Courts have generally been willing to distinguish between modification of the time of confinement and modification of a sentence.  See, e.g., Raines v. United States Parole Comm'n, 829 F.2d 840, 844 (9th Cir.1987) (per curiam) ("good time credits reduce only the period of incarceration, not the sentence itself");  Leyvas v. Harris, 428 F.2d 366, 367 (7th Cir.1970) (per curiam) ("[t]here is no merit ... to the contention that the good time ... earned in prison reduce[s] the original sentence....");  cf. 18 U.S.C. Sec. 4210(a) (A sentenced individual, even if paroled, remains "in legal custody ... until the expiration of the maximum term ... [to] which [he] was sentenced.")  (emphasis added).  For instance, in the context of confinement periods reduced by good time allowances, the courts have consistently refused to interpret the reduction of confinement as a reduction of sentence.  See Raines, 829 F.2d at 844;  Stabile, 834 F.2d at 306;  LaMagna v. United States Bureau of Prisons, 494 F.Supp. 189, 191 (D.Conn.1980).  Caselaw thus indicates that reduction in the length of confinement is not synonymous with reduction of a person's sentence.  Therefore, in my view, it is wrong to assume, as the majority does here, that, because the incarceration phase of Scanio's sentence expired on November 27, 1991 due to his early release, his sentence ended two years later on November 26, 1993.

29
The majority also implicitly assumes that the Salvation Army could prematurely end the incarceration phase of Scanio's sentence at its option.  Unlike in the context of good time allowances, where reduction of confinement is explicitly authorized by statute, see, e.g., 18 U.S.C. Sec. 4161, there has been no showing that the Salvation Army even possessed the authority to release Scanio early.  More importantly, the Salvation Army certainly had no authority to modify Scanio's sentence as such, as would be necessary in order to reach the majority's conclusion that Scanio was not in custody on November 29, 1993.5  The courts have generally frowned upon permitting even the courts themselves to modify a prisoner's sentence unless expressly authorized by statute.  See United States v. Fraley, 988 F.2d 4, 6-7 (4th Cir.1993) (absent statutory authority, the courts cannot modify a sentence sua sponte );  United States v. Benefield, 942 F.2d 60, 66 (1st Cir.1991) (recognizing limited capacity of courts to alter sentences even when statutorily authorized);  United States v. Whittington, 918 F.2d 149, 151 (11th Cir.1990) (sentencing judge was prohibited from modifying prisoner's sentence after sentence was imposed);  United States v. Cook, 890 F.2d 672, 675 (4th Cir.1989) (the district court cannot modify sentences because it merely changes its mind);  see also 18 U.S.C. Sec. 3582(c) ("court[s] may not modify a term of imprisonment once it has been imposed except" in the rare circumstances authorized by certain enumerated statutes).  I am unaware of any support for the proposition that agencies, public or private--here, the Salvation Army--can, without any statutory authority, sua sponte alter the sentences of individuals remanded to their facilities for incarceration.  Indeed, such a rule would seem anomalous on its face.6  Yet, the majority, in relying on the date when the Salvation Army released Scanio from incarceration, in order to determine when his sentence expired, is, in effect, vesting that agency with the authority to reduce a defendant's sentence.   It would surely be unique in a system which has so zealously guarded the authority to alter a person's sentence, to now hold that an agency, given no authority by statute or precedent, can on its own accord effectively eliminate a portion of a sentence imposed by a district court when the district court itself cannot do so.  I believe the better rule, and the only one consistent with caselaw, is that a prisoner's sentence cannot be reduced unless specifically authorized by statute.

30
Unlike the majority, I believe we cannot rely on the date the Salvation Army released Scanio from incarceration to determine whether he was "in custody" for Sec. 2255 purposes on November 29, 1993,7 because, as stated, that requires reliance on unsupportable legal ground.  Moreover, since there is no other evidence to support the district court's holding that on November 26, 1993, "all terms of Petitioner's sentence had been completed," I would hold that the district court's finding is "merely conclusory and as such [is] insufficient to indicate the factual basis for its ultimate conclusions...."  Fortner v. Balkcom, 380 F.2d 816, 821 (5th Cir.1967);  accord Kelley v. Everglades Drainage Dist., 319 U.S. 415, 421, 63 S.Ct. 1141, 1145, 87 L.Ed. 1485 (1943);  Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1228 (1st Cir.1994);  Monarch Beverage, 823 F.2d at 1192 ("it is necessary to disclose to the reviewing court the steps by which the trial court reached its ultimate conclusion on each factual issue") (quotations and citations omitted).  Accordingly, I would remand to the district court with instructions to state the manner in which it reaches its ultimate conclusions or to make additional factual findings in order to support its conclusions.  See Rule v. International Ass'n of Bridge, Structural & Ornamental Ironworkers, Local Union No. 396, 568 F.2d 558, 568 (8th Cir.1977) ("When a District Court has failed to make appropriate findings of fact, an appellate court should not attempt to resolve factual issues on its own.  In such circumstances, the appropriate action is to vacate the judgment and remand the case to the district court.");   see also Grimo, 34 F.3d at 152-53 (since factual record was inadequate for appellate review, remand was proper).

31
Further, even assuming that appellant's sentence expired on November 26, 1993, I believe that the equitable principles embodied in Fed.R.Civ.P. 6(a)8 require us to permit, as timely, the filing of this habeas petition on November 29, 1993, that being the first business day following the holiday weekend.  The majority rejects appellant's claim that Rule 6(a) applies to this habeas corpus petition, on the ground that the "in custody" requirement of 28 U.S.C. Sec. 2255 is a jurisdictional limitation.  I consider this to be circular reasoning and I disagree with my colleagues that the application of Rule 6(a) would improperly enlarge federal court jurisdiction in this habeas case.  I would hold that, absent a contrary policy expressed in the statute governing our review, we should interpret time limitations so as to promote the "considerations of liberality and leniency which find expression in Rule 6(a)...."  Union Nat'l Bank v. Lamb, 337 U.S. 38, 41, 69 S.Ct. 911, 913, 93 L.Ed. 1190 (1949).

32
In Lamb, the Supreme Court held that Rule 6(a) applied where "no contrary policy [was] expressed in the statute governing [the Court's] review...."  Id.   This Court applied the Lamb approach in Simon v. Commissioner of Internal Revenue, 176 F.2d 230, 232 (2d Cir.1949).  The appellant in Simon filed an appeal on July 24, 1947, from a January 27, 1947 decision of the United States Tax Court.  Id. at 231.   The issue before the court was whether the filing of a motion for reconsideration on April 28, 1947 was timely;  if so, the motion would operate to enlarge the time to file an appeal from the Tax Court decision.  See Revenue Act of 1942, Secs. 504, 1140, 1142, 53 Stat. 165.  The Commissioner argued that the motion was untimely since it was filed one day after the three-month time limit for the filing of such motions.  Simon, 176 F.2d at 231.   Judge Jerome Frank, in an opinion joined by Chief Judge Learned Hand and Judge Charles Clark disagreed with the Commissioner.  They held, in a section of the opinion entitled "Jurisdiction," that since April 27, 1947, the last day of the three-month period, was a Sunday, the filing of the appeal on Monday, April 28, 1947 was timely, pursuant to Rule 6(a).  Id. at 232;  accord Kane v. Douglas, Elliman, Hollyday & Ives, 635 F.2d 141, 142 (2d Cir.1980) (per curiam) (Rule 6(a) applied to the filing of Title VII claim).

33
Other circuits have also followed the reasoning of Lamb when the statute at issue was passed after the federal rule which provides the time computation.  See, e.g., Wood-Ivey Sys. Corp. v. United States, 4 F.3d 961, 962-63 (Fed.Cir.1993) (construing the identical Claims Court Rule 6(a) to permit filing under the Contract Disputes Act of 1978, two days after the twelve month limitations period);  United Mine Workers of Am. v. Dole, 870 F.2d 662, 665 (D.C.Cir.1989) (construing the virtually identical Fed.R.App.P. 26(a) and allowing the filing of a petition under the Mine Act two days after the 60-day limitations period);  In re Gotham Provision Co., Inc., 669 F.2d 1000, 1014 (5th Cir.)  (applying Fed.R.Civ.P. 6(a) to compute period of filing notice under the Packers and Stockyards Act), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982).

34
Instead of relying on this caselaw, the majority asserts that the "in custody" requirement of Sec. 2255 is "jurisdictional" and therefore Rule 6(a), if applied herein, would impermissibly expand the jurisdiction of the federal courts.  Although I agree with the majority that the "in custody" requirement is jurisdictional, I disagree that Rule 6(a) is therefore inapplicable.

35
Rule 6(a) is an acknowledgment that the functioning of the courts is often interrupted by holidays, weekends and other events that make filing impossible.  The Rule, grounded in notions of fairness, provides a practical mechanism to permit filings made on the first business day following the day when the court was inaccessible.  See Frey v. Woodard, 748 F.2d 173, 175 (3d Cir.1984) ("We all know ... that the clerks' offices close on weekends, and Fed.R.Civ.P. 6(a) provides for the computation of time limits consistent with that reality.").  Construing the use of Rule 6(a), in certain circumstances, as an expansion of jurisdiction to deny access to the courts ignores the practical purpose of the Rule and unnecessarily restricts its functioning in stifling formalism.  See generally 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 1163, at 469 (1987) ("It is difficult to perceive how a legitimate governmental interest would be prejudiced by application of ... Rule 6 ... to federal statutes of limitations, ... [since it] would delay the expiration of a given period by, at most, two or three days, which is unlikely to inconvenience or prejudice anyone.").

36
Courts have often refused to so hamper Rule 6(a), explicitly rejecting the notion that it expands jurisdiction.  In Frey, 748 F.2d at 175, for example, the Third Circuit characterized as "frivolous" the government's contention that the application of Rule 6(a) would "expand the jurisdiction of the district court."  Id.;  accord Dole, 870 F.2d at 665 ("time periods, including jurisdictional time periods, are to be construed in accordance with [rule that provides exemption for weekends and holidays]");  Wood-Ivey, 4 F.3d at 962-63 (rejecting the Claims Court's characterization that Claims Court Rule 6(a) was inapplicable because the filing was "jurisdictional");  Simon, 176 F.2d at 231-32 (holding that Rule 6(a) applied and the appeal was timely even though the Tax Court's jurisdiction depended upon the timely filing of the motion for reconsideration).

37
Moreover, cases in the notice of appeal context lend implicit support for the notion that Rule 6(a) does not expand jurisdiction of a court even if used to permit a filing where timely filing is a jurisdictional issue.  It is well-settled that the timely filing of a notice of appeal is "mandatory and jurisdictional."  United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960);  see also United States v. Batista, 22 F.3d 492, 493 (2d Cir.1994) (per curiam) ("untimely filing of a notice of appeal is a jurisdictional defect");  United States v. Ferraro, 992 F.2d 10, 11 (2d Cir.1993) (per curiam).  Yet, Fed.R.Civ.P. 6(a), and later the virtually identical Fed.R.App.P. 26(a), have consistently been utilized in the context of filings of notices of appeal.  See, e.g., Jones & Laughlin Steel Corp. v. Gridiron Steel Co., 382 U.S. 32, 32, 86 S.Ct. 152, 152, 15 L.Ed.2d 26 (1965) (per curiam) (Applying Rule 6(a), the Court held that "[s]ince the thirtieth day following entry of the judgment appealed from was Saturday and the notice of appeal was filed the following Monday, we hold that the filing of the notice of appeal was timely");  Batista, 22 F.3d at 492-93 (Although notice of appeal was due on Saturday, Court noted that Monday filing was timely by operation of Fed.R.App.P. 26(a));  Telephone & Data Sys., Inc. v. Amcell F Atlantic City, Inc., 20 F.3d 501, 501-02 (D.C.Cir.1994) (per curiam) ("due to inclement weather, we conclude that the clerk's office was 'inaccessible' on [January 19, the day notice was due and January 20] and that notice of appeal was timely filed on January 21");  Prudential Oil & Mineral Co. v. Hamlin, 261 F.2d 626 (10th Cir.1958) (applying Rule 6(a) in notice of appeal context);  Wilson v. Southern Ry. Co., 147 F.2d 165, 166 (5th Cir.1945) (applying Rule 6(a) in the notice of appeal context and stating that "[t]he Rule does not attempt to change a jurisdictional statute, but merely provides a method of computing the statutory period").

38
Finally, considerations of fairness clearly tip the scales towards implementing Rule 6(a) to permit the filing of this habeas petition.  Fairness is a principle that must inform all of our deliberations in the courts of the United States, even when the task requires us, in the first instance, to decide whether we have the power to hear and decide a litigant's claims.  Jurisdiction and fairness are not naturally antagonistic concepts, and our courts' procedures should operate so as to avoid making them so.  In my view, the majority does not give sufficient regard to fairness when it allows the district court to effectively thwart a litigant from complying with a legal requirement that he be "in custody" when he files a petition under 28 U.S.C. Sec. 2255, because by happenstance the date his custody ends coincides with the date the court decides to close its doors for the holiday--and he thereafter files on the first day that the courthouse is open.

39
It is especially important to insure access to the courts in the context of habeas petitions.  As the Supreme Court noted in Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969), "[t]he very nature of the writ [of habeas corpus] demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice ... are surfaced and corrected."   See also Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973) ("we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements").

40
Appellant should be able to have his day in court--win or lose.  A needlessly rigid interpretation of the law as applied to the facts herein should not be permitted to deny appellant access to the federal courts.

1
 November 26, 1993 followed Thanksgiving Day, which was November 25.  As frequently occurs under these circumstances, the Chief Judge of the Western District of New York extended the holiday to include Friday, November 26, 1993 and, thus, the courthouse was not open from the close of business Wednesday until the following Monday

2
 The sole evidence of record that arguably supports the district judge's conclusion that Scanio's sentence expired on November 26, 1993, is a Notice of Release and Arrival form indicating that Scanio was "released" from the Salvation Army on November 27, 1991.  Apparently, the majority views this as a sufficient factual basis to conclude that Scanio's two-year period of supervised release began immediately following November 27, 1991 and that his sentence therefore expired two years later at midnight on November 26, 1993

3
 Mere release from incarceration does not affect the inquiry of whether an individual is "in custody" for Sec. 2255 purposes.  See Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (per curiam) (individual need not be "physically confined" to be considered in custody);  see also Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (persons on parole are still in custody);  Hahn v. Burke, 430 F.2d 100, 102 (7th Cir.1970) (persons on probation are in custody), cert. denied, 402 U.S. 933, 91 S.Ct. 1522, 28 L.Ed.2d 868 (1971);  Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (per curiam) (persons under suspended sentence are in custody);  United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 (3d Cir.1975) (same)

4
 The record contains a letter from the Chief Deputy United States Marshal stating that Scanio was to voluntarily surrender himself to the FCI McKean Prison in Bradford, Pennsylvania on November 30, 1990, for service of his sentence--which Scanio apparently did

5
 If Scanio began a three year sentence on November 30, 1990 and his sentence expired, as the majority asserts, on November 26, 1993, then his sentence would have been reduced by three days

6
 In this case, where the difference involves only a few days, the anomaly of a rule that permits an institution of incarceration to, in effect, reduce a prisoner's sentence may not be apparent.  However, if the Salvation Army can reduce Scanio's sentence by three days, I can think of no legal principle preventing it from reducing a defendant's sentence by one month, two months, a year or even more

7
 Again, the determination of whether a person is "in custody" for habeas purposes is controlled, not by the date when the person is released, but by the date when the sentence is completed.  See generally supra note 2;  17A Charles Alan Wright et. al., Federal Practice and Procedure Sec. 4262 (1988 & Supp.1993)

8
 Fed.R.Civ.P. 6(a) provides, in pertinent part:
In computing any period of time prescribed ... by any applicable statute, ... [t]he last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days.


           IN THE SUPREME COURT OF THE STATE OF DELAWARE

PETERSON ENTERPRISES, INC.,               §
RONALD A. PETERSON, ERIC                  §      No. 109, 2019
PETERSON, KIRK PETERSON,                  §
RONALD A. PETERSON                        §      Court Below: Court of Chancery
REVOCABLE TRUST, RONALD A.                §      of the State of Delaware
PETERSON 2010 IRREVOCABLE                 §
TRUST and VERNON L.                       §      C.A. No. 11189-VCG
GOEDECKE COMPANY, INC.,                   §
                                          §
       Defendants Below,                  §
       Appellants,                        §
                                          §
       v.                                 §
                                          §
BRACE INDUSTRIAL                          §
CONTRACTING, INC., and                    §
PETERSON INDUSTRIAL                       §
SCAFFOLDING, INC.,                        §
                                          §
       Plaintiffs Below,                  §
       Appellees and Cross-               §
       Appellants.                        §

                              Submitted: October 16, 2019
                               Decided: January 6, 2020

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

                                     ORDER

      This 6th of January 2020, after careful consideration of the briefs, oral

argument, and the record on appeal, it appears to the Court that:

      1.     The appeal involves disputes arising from the sale of a scaffold

subcontracting company, Peterson Industrial Scaffolding, Inc. (PIS).    PIS was

formerly a wholly owned subsidiary of Peterson Enterprises, Inc. (PEI). On August
10, 2014, PEI sold all of its stock in PIS to Brace Industrial Contracting, Inc. After

settlement, disputes arose, and Brace Industrial Contracting, Inc., and PIS (Brace)

filed suit in the Court of Chancery against PEI and the other defendants.

      2.     Brace’s amended complaint set forth three sets of claims, only two of

which are raised and will be discussed in this appeal. In the first set, Brace alleged

that asset disclosure schedules which were part of the Stock Purchase Agreement

(SPA) overstated the amount of industrial and commercial scaffolding equipment

owned by PIS at the time of sale (the inventory claims).           Because PEI had

misrepresented the amount of scaffolding equipment inventory owned by PIS, the

amended complaint alleged, Brace had paid for inventory it never received. It sought

indemnification under the SPA for the difference between the scaffolding inventory

as represented on the asset disclosure schedules and the inventory actually owned

by PIS at the time of sale. The amended complaint further alleged that Defendants

Ronald Peterson, the Ronald A. Peterson Revocable Trust, and the Ronald A.

Peterson 2010 Irrevocable Trust (the Guarantors) had guaranteed PEI’s

indemnification obligations. In a written opinion dated October 31, 2016, the Court

of Chancery ruled in Brace’s favor and awarded Brace $703,975 on the inventory

claims. In a separate order dated December 12, 2018, the Court of Chancery also

awarded Brace $440,149 in costs and $241,686 in attorney’s fees under the SPA’s

indemnification provision.

                                          2
      3.    In a second set of claims, Brace alleged that PEI had agreed on behalf

of itself and all its affiliates to refrain from competing with Brace for five years

except as permitted in a “carve-out” provision (the restrictive covenant claims).

Brace alleged that PEI had done so through its subsidiary, Vernon I. Goedecke, Inc.

(Goedecke). The complaint named Defendants Goedecke, Ronald Peterson, Eric

Peterson, and Kirk Peterson as affiliates of PEI who were liable for the restrictive

covenant claims. In its October 31, 2016 opinion, the Court of Chancery ruled in

favor of PEI and the other defendants on the restrictive covenant claims.

      4.    The Appellants set forth three claims of error on appeal. They first

contend that the Court of Chancery erred with respect to the inventory claims by

adopting a methodology for determining the volume of scaffolding at the time of

closing which was not the product of an orderly and logical deductive process. In

connection with this claim of error, the Appellants also contend that Brace did not

follow the proper procedure set forth in the SPA for obtaining indemnification. The

second claim is that the Court of Chancery committed error in awarding Brace costs

of $440,149. That sum represents the entire amount of costs incurred by Brace in

the action. The Appellants argue that under the SPA Brace was entitled to recover

costs only for claims upon which it prevailed, such as the inventory claims, not for

claims upon which it did not prevail, such as the restrictive covenant claims.

Awarding the entire $440,149, the Appellants argue, improperly awards costs for

                                         3
unsuccessful claims. The third claim of error is that the Court of Chancery erred in

entering judgment against Eric and Kirk Peterson in any amount and against the

Guarantors for judgment amounts which exceed their liability for SPA

indemnification. As part of this claim, the Appellants also contend that the Court of

Chancery erred by ordering that the entire amount of the judgment be paid out of an

escrow fund which was established by an Escrow Agreement as part of the

transaction.

      5.       Brace has cross-appealed, claiming that the Court of Chancery erred by

awarding it only $241,686 in attorneys’ fees.

      6.       We have carefully considered the arguments on appeal, and affirm the

Court of Chancery’s disposition of the inventory claims as legally correct and the

product of an orderly and logical deductive process for the reasons stated in its

October 31, 2016 opinion. We also affirm the Court of Chancery’s award to Brace

of $241,686 for the reasons assigned by the Court of Chancery in its order dated

January 11, 2019. We do, however, find merit in Appellant’s claims of error related

to the award to Brace of $440,149 in costs, and the form of the judgment.

      7.       The Appellants concede that Brace is entitled to $18,663.88 of costs

under Court of Chancery Rule 54(d) for its success on the inventory claims. Brace

argues that it is entitled to all of the $440,149, which, as mentioned, is its entire costs

on all claims. Brace contends that Section 6.2 of the SPA entitles it to all costs not

                                            4
covered by Rule 54(d). Section 6.2 gave Brace a right of indemnification for any

“[l]osses incurred or sustained by, or imposed upon, the Buyer Indemnitees based

upon, arising out of, with respect to or by reason of . . . any inaccuracy in or breach

of any of the representations or warranties of Seller.”1 The Appellants argue that

Brace is not entitled to any costs associated with the restrictive covenant claims

because PEI was found not to have breached its representations or warranties with

respect to those claims. Brace argues that all of its costs flow from PEI’s breach of

its representations and warranties under the SPA.

       7.      We agree with the Appellants that Brace is not entitled to costs

associated with the restrictive covenant claims because the Court of Chancery found

that PEI did not breach the SPA’s restrictive covenants. Where a party asserts more

than one claim and is entitled to recover costs for one or more but not others, the

party must make a good faith effort to segregate costs between those claims for

which it is entitled to recover costs and those it is not.2 Brace made no effort to

1
  App. to Appellants’ Opening Br. at A82.
2
  In Council of Dorset Condominium Apartments v. Gordon, on remand from this Court to explain
its findings, the Court of Chancery noted in dicta that it would have awarded a party only those
fees and costs that were associated with the claim on which the party had prevailed under the
plaintiff condominium association’s Code of Regulations (COR). See 2002 WL 1335620, at *1
(Del. Ch. June 14, 2002). There, the applicable provision of the plaintiff’s COR stated that “[i]n
any proceeding arising out of any alleged default by a Unit Owner, the prevailing party shall be
entitled to recover the costs of the proceeding, and such reasonable attorneys’ fees as may be
determined by the court.” Id. The defendant in Council of Dorset Condominium Apartments
prevailed on the majority of its claims; the plaintiff prevailed on a single, “less important claim,”
and “the court denied the plaintiff’s request for attorneys’ fees and costs.” Id. The court did so
for several reasons, including the notion that “if th[e] court had interpreted the COR to authorize
or even require an award of fees or costs to the plaintiff condominium association as the prevailing

                                                 5
segregate its costs between the inventory claims and the restrictive covenant claims.

Neither the Court of Chancery nor the Appellants were under any obligation to

attempt to segregate Brace’s costs. Since Brace made no effort to segregate its costs,

it failed to meet its burden of establishing the amount of costs it is entitled to recover

for those claims upon which it was successful. Therefore, the Court of Chancery’s

award of $440,149 is reversed. On remand, the Court of Chancery should amend its

judgment to reduce Brace’s award of costs to $18,663.88.

       8.      The Court of Chancery also erred in the form of final judgment entered

February 6, 2019. That order entered judgment in favor of the plaintiffs on Counts

I, II, III and V of the amended complaint in the following amounts: $550,743, less

eight adjustments; $561,975.82, comprising the sum awarded by an Independent

party on the less important claim, any such award would have been limited to fees and costs related
to that claim.” Id. (emphasis added). Additionally, in Cantor Fitzgerald, L.P. v. Cantor, the Court
of Chancery, after denying reargument and in an amending and superseding opinion, awarded
reasonable costs and attorneys’ fees where the prevailing party “produced adequate documentation
of the fees and expenses incurred in righting the wrong done to it by defendants.” 2002 WL
1824908, at *2 (Del. Ch. June 21, 2002) (emphasis added). Under the particular facts in Cantor,
however, the court did not apply traditional fee shifting concepts because the court found that the
fees and expenses incurred there constituted actual damages. Id. The traditional fee shifting
concept, advanced by the defendants in Cantor and which we adopt, requires that “the direct causal
connection between the finding that a fee is warranted and the fee incurred must be established.”
Id. (relying on Arbitrium (Cayman Islands) Handels AG v. Johnson, 705 A.2d 227, 237 (Del. Ch.
May 27, 1997), aff’d sub nom Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542
(Del. 1998) (noting, in a request for attorneys’ fees and expert witness’s fees, that the party
requesting expenses did not distinguish costs between a claim on which costs were recoverable
and a claim on which costs were not recoverable and finding “further proceedings, and a more
detailed record” necessary for the court to determine the appropriate amount of attorneys’ fees)).
We therefore take it as a precondition to an award of costs that a party make a good faith effort to
distinguish costs related to any claim on which it may recover from those costs to which it is not
similarly entitled.

                                                 6
Accountant in a post-closing adjustment proceeding, less an offset for $25,000 for

the cost of that proceeding; the above-discussed attorneys’ fees and costs; and pre

and post judgment interest. The judgment also recited that the $725,059 awarded on

Brace’s inventory claims had been satisfied and was excluded from the judgment.

The judgment also ordered that the sums due Brace be paid from the escrow fund

established as part of the transaction.

      9.     All defendants’ names are in the caption of the final judgment. The

Appellants contend that no judgment in any amount should have been entered

against Eric Peterson and Kirk Peterson because those parties were named as

defendants only with respect to the restrictive covenant claims. The Appellants also

contend that the Court of Chancery erred by entering judgment against the

Guarantors for all amounts owed under the judgment. The Guarantors, they contend,

are liable only for indemnification obligations arising under Section 6.2 of the SPA

(the inventory claims). The Appellants also contend that the Court of Chancery erred

by ordering that the escrow fund be used to pay the judgment amounts due Brace up

to the amount of the judgment. Under Section 1.3 of the Escrow Agreement, the

Appellants contend, the escrow funds are available only for satisfying

indemnification claims arising under Section 6.2 of the SPA.

      10.    It appears from the amended complaint that Counts I, II and V were

asserted against PEI only, and Count III was asserted only against PEI and the

                                          7
Guarantors. Thus, on remand, the Court of Chancery should amend its judgment to

clarify that judgment is entered against those parties only. It should also amend its

judgment to clarify that the Guarantors are liable as Guarantors only for the costs

and fees remaining on indemnification claims under Section 6.2 of the SPA. Finally,

it should amend the judgment to reflect that only what remains unpaid on

indemnification claims are payable out of the escrow fund.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Court of

Chancery is affirmed in part and reversed in part. The case is remanded for

proceedings in conformity with this opinion. Jurisdiction is not retained.

                                       BY THE COURT:

                                       /s/ James T. Vaughn, Jr.
                                       Justice

                                         8


204 Ga. App. 301 (1992)
419 S.E.2d 135
WOJCIK
v.
LEWIS.
A92A0449.
Court of Appeals of Georgia.
Decided May 20, 1992.
Doffermyre, Shields & Canfield, Everette Doffermyre, Jr., Kelly & Hunter, Robert J. Hunter, for appellant.
Land, McKnight, Newlin & Cohen, Robert H. McKnight, J., for appellee.
BEASLEY, Judge.
Plaintiff Wojcik appeals from a verdict directed in favor of defendant Lewis in a suit for breach of contract.
Lewis was chairman of the board of directors and stockholder of Uniglobe Southeast Travel, Inc. ("Uniglobe SE"), a Georgia corporation, which was a franchise covering a number of southern states of a travel agency business named Uniglobe International, Inc. Through a mutual friend in Ohio, Lewis met Wojcik and after discussions offered him the job of regional president of the Uniglobe Southeast territory. *302 After additional negotiations Wojcik accepted Lewis' offer and drew up a document captioned "LETTER OF UNDERSTANDING between Morris Lewis III & William L. Wojcik."
The Letter of Understanding listed the matters that Lewis and Wojcik had discussed pertaining to Lewis' desire to have Wojcik become regional president of Uniglobe SE. It provided for compensation; automobile; moving expenses; down payment for a house to be loaned by Lewis; the assistance of Lewis in obtaining home financing from his banking contacts; and the authority to run the business so long as Wojcik did not act in a manner detrimental to the best interests, good name, reputation or well being of Lewis or the business.
The last paragraph set forth the terms of the agreement as being "for a period of not less than three years." It added: "The conditions of the Letter of Understanding shall be able to be changed by mutual consent between the parties of William L. Wojcik and Morris Lewis III. In the unlikely event William L. Wojcik gives cause to Morris Lewis III to desire to terminate this agreement, then such cause shall be brought to the attention of Uniglobe International and they shall act as arbitrator between both William L. Wojcik and Morris Lewis III." The letter was signed by both men on June 20, 1987. No written employment contract with the corporation was entered into.
Wojcik sued on July 15, 1988, asserting that Lewis wrongfully breached the contract represented by the Letter of Understanding in unilaterally terminating his employment and failing to honor its terms during the course of his employment. His trial testimony showed that he began working for Uniglobe SE on a full-time basis in September of 1987, but almost immediately began having problems with Lewis due to his interference with day-to-day affairs which affected the performance and morale of the other employees and forced Wojcik to spend a disproportionate amount of time trying to rectify. Although attempts were made to restore the discretion and authority Wojcik needed to operate the business, Lewis resumed his constant interference. On May 13, 1988, Lewis fired Wojcik effective immediately and ordered him not to discuss the circumstances of the firing or to have any further contact with anyone at Uniglobe SE.
Lewis moved for summary judgment and later for directed verdict on the grounds that (1) the Letter of Understanding was an incomplete and therefore unenforceable contract; (2) the agreement was terminable at will because it was for an indefinite period of "not less than three years"; (3) the arbitration provision in the agreement had been satisfied, which authorized him to terminate Wojcik because the conditions of the agreement had been fulfilled; and (4) he had acted as an agent for a disclosed nonparty corporation, thereby relieving him of any personal liability under the letter.
The court ascertained that from the letter it was clear Wojcik *303 knew he was going to work as the president and an employee of Uniglobe SE; that all of his salary was paid to him on a corporate bank account of Uniglobe SE; that Uniglobe SE's name was on his office door; and that Lewis had loaned Wojcik $34,800 to be used as a down payment on a house in Atlanta. The court concluded as a matter of law that where it is, clear and undisputed that a contracting party such as Wojcik knows that he was contracting to provide services for a corporation, there are no issues of fact for a jury to determine as to whether a corporation, rather than an individual agent, is liable for any alleged breach of the contract; and that under the circumstances there were no issues of fact precluding the conclusion that the agent, Lewis, was not liable.
Wojcik contends that the court erroneously directed a verdict on the basis that Lewis acted as an agent for a nonparty corporation, thereby relieving him of personal liability for breach of the Letter of Understanding.
1. Lewis contends that even if there was a valid contract of employment, it was unenforceable because the period of employment was for an indefinite period of time and therefore terminable at will by either party. While this is a true statement of the law, OCGA § 34-7-1, it is not controlling. The contract specified that the term of Wojcik's employment was to be "for a period of not less than three years," and his testimony showed that had he not been guaranteed this length of time to try to turn the business around he would not have agreed to give up his employment in Ohio and relocate to Atlanta. The line of cases cited by Lewis involves situations where "[i]n [the] absence of a controlling contract between the parties, employment for an indefinite period  a `permanent job'  is terminable at the will of either party, and a discharge in such circumstances affords no cause of action for breach of contract. [Cits.]" Land v. Delta Air Lines, 130 Ga. App. 231 (203 SE2d 316) (1973). The time from the commencement of Wojcik's employment until the end of three years is a certain period of time, Wojcik was terminated before the end of that period, and he did not claim any rights beyond that period.
We adhere to the legal principle espoused in Milton v. Bank of Newborn, 30 Ga. App. 55, 58 (116 SE 861) (1923): "` "The parties to a contract which is wholly executory have a right to the maintenance of the contractual relations up to the time for performance, as well as to a performance of the contract when due."'" As recently explained in Barker v. CTC Sales Corp., 199 Ga. App. 742, 743 (1) (406 SE2d 88) (1991), "Milton involved a contract of employment for a specific and definite term, and thus in Milton the employee's discharge because of the employer's insolvency prior to the expiration of that term was actionable." Accord Marshall v. W. E. Marshall Co., 189 Ga. App. 510 *304 (1) (376 SE2d 393) (1988), where a contract for a one-year period was held not to become terminable at will until after the expiration of that period. Wojcik was not foreclosed from bringing an action on the contract.
2. OCGA § 10-6-87, the agency statute upon which Lewis and the trial court relied, recites: "Where the agency is known and the credit is not expressly given to the agent, he shall not be personally responsible upon the contract. The question to whom the credit is given is a question of fact to be decided by the jury under the circumstances in each case." It appears that the court did not consider the second sentence of the statute and the cases applying it.
"[A]n agent who makes a contract without disclosing that he is acting as an agent or without identifying his principal, or an agent who makes a contract with the express or implied understanding with the other party that he is binding himself individually, will become individually liable on the contract.... If the agent would avoid personal liability, the duty is on him to disclose his principal, and the is individually liable if he fails to disclose his agency and the identity of his principal. [Cits.] Whether or not the fact of the agency and the identity of the principal were disclosed or known to the other contracting party is a question of fact which may be shown by direct or circumstantial evidence. [Cit.] And to relieve himself of personal liability the agent ordinarily has the burden of proving by direct or circumstantial evidence the fact of agency as well as knowledge thereof by the opposite party. [Cit.] The contract may, depending upon the facts and circumstances, be impliedly one with the agent in his individual capacity. What was the understanding of both parties is a question of fact to be decided by the jury under the circumstances of each case. [Cits.]" Chambliss v. Hall, 113 Ga. App. 96, 99 (2) (147 SE2d 334) (1966).
As in Whitlock v. PKW Supply Co., 154 Ga. App. 573, 574 (1) (269 SE2d 36) (1980), so here: "` "Where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it." ' [Cits.] The fact that [Wojcik] was aware of the existence of [Uniglobe SE] was not sufficient to relieve [Lewis] of personal liability as an agent of a disclosed principal. The use of a trade name is not necessarily a sufficient disclosure of the identity of the principal and the fact of agency so as to protect the agent against personal liability. [Cit.] Even if the principal here were disclosed, the intention of the parties as to who will be bound where the principal is disclosed is usually a question of fact for a jury. [Cit.]"
The primary reason for directing the verdict was the trial court's finding that Lewis was representing the disclosed principal, Uniglobe SE, when he hired Wojcik. However, there was evidence to show that *305 Lewis contracted with Wojcik personally and not as an agent for Uniglobe SE. The language of the Letter of Understanding supports Wojcik's position that Lewis was acting individually in asking him to work for the corporation. It states that its contents were discussed, understood and agreed upon between Lewis and Wojcik and that it was Lewis' desire to hire him, not that of the corporation through its board of directors. The corporate name is mentioned only to describe the territory which Wojcik was employed to oversee. Wojcik's salary was paid by the corporation, but Lewis personally expedited the financing for Wojcik's residence and loaned him the money for a down payment. The letter was signed by Lewis individually, without any designation of his capacity or other descriptive title.
"`An agent may expressly contract on his own credit, and be bound, even though his principal be known.' [Cit.] Ordinarily it is a question of fact for a jury under the circumstances of each case whether credit is expressly given to the agent. [Cits.]" Brown & Huseby, Inc. v. Chrietzberg, 242 Ga. 232, 234 (3) (248 SE2d 631) (1978). The Letter of Understanding embodying the contract allowed an inference that Lewis was acting on behalf of Uniglobe SE, "or an inference that it was the intention of [Wojcik] and [Lewis] that [Lewis] was to be bound individually on the contract. [Cit.] But this evidence did not demand a finding that either of these inferences was the true fact. A trade name may be used under such circumstances that agency will be sufficiently disclosed; but the use of a trade name is not per se a sufficient disclosure but raises a question of fact to be determined by the fact-finding tribunal. [Cits.]" Chambliss, supra at 100.
The evidence did not demand a verdict for either the plaintiff or the defendant, so a directed verdict should not have been granted. Stone v. Allen, 201 Ga. App. 842 (1) (412 SE2d 605) (1991). "It is clear that the trier of fact should determine whether ... [the job offer] was extended [by] the agent in his own right or [by] the principal on whose behalf the agent was acting." Yarbrough & Co. v. Travis Pruitt & Assoc., 130 Ga. App. 49, 50 (202 SE2d 227) (1973).
Judgment reversed. Birdsong, P. J., and Andrews, J., concur.


738 F.2d 431
Roysterv.Adams
83-1308
United States Court of Appeals,Fourth Circuit.
6/21/84

1
D.S.C.

AFFIRMED


617 F.2d 104
UNITED STATES of America, Plaintiff-Appellee,v.Adolfo H. GONZALEZ, Defendant-Appellant.
No. 79-5516.
United States Court of Appeals,Fifth Circuit.
May 14, 1980.

Louis R. Beller, Miami Beach, Fla.  (Court-Appointed), for defendant-appellant.
Jack V. Eskenazi, U. S. Atty., Linda Collins Hertz, A. Scott Miller, Asst. U. S. Attys., Miami, Fla., for the U. S.
Appeal from the United States District Court for the Southern District of Florida.
Before COLEMAN, Chief Judge, PECK*, and KRAVITCH, Circuit Judges.
COLEMAN, Chief Judge.

1
In a jury trial the appellant, Adolfo H. Gonzalez, was convicted of illegally possessing, with intent to defraud, $200 in counterfeit Federal Reserve Notes (two $50 notes and five $20 notes), in violation of 18 U.S.C. § 472 (1976).1

2
On appeal Gonzalez argues that the government's circumstantial evidence is, as a matter of law, not sufficient to support his conviction.  In response to this we must view the evidence in the light most favorable to the government.  Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed.680 (1942).  We affirm the conviction.

3
Before beginning his regular patrol at 11 p. m. on December 2, 1978, Miami Beach Police Officer Bauer, under the supervision of his sergeant, conducted a customary, standard search of his patrol car.  He examined the trunk, the glove compartment, and the floor.  He also lifted the back seat and searched beneath it.  He found nothing there or elsewhere in the car.

4
While on patrol at approximately 2:45 a. m. that same morning, Officer Bauer arrested Gonzalez for a traffic violation.  Gonzalez's wrists were handcuffed behind his back, a pat-down search for weapons was performed, and Gonzalez was placed on the back seat of the patrol car.  Officer Bauer noticed Gonzalez fidgeting on the back seat, moving from side to side and up and down.  Gonzalez twice ignored orders to stop this activity.  However, Officer Bauer testified that the fidgeting did not, at the time, arouse his suspicion.

5
Bauer then drove to the Miami Beach Police Station and went inside to make copies of his report.  While the officer was inside the station, Gonzalez was alone in the patrol car.  During this time Officer Neumann kept Gonzalez under surveillance from another patrol car, parked immediately behind Bauer's vehicle.

6
Next, Bauer drove to the Dade County Justice Building where at around 3:45 a. m. he deposited Gonzalez.  Bauer then resumed routine patrolling.

7
Near the end of his shift at approximately 7:20 a. m., Bauer returned to the Police Station where he and two other officers conducted a standard search of his patrol car.  They discovered two $50 bills and five $20 bills in the back seat, between the seat cushion and the back cushion, right where Gonzalez had been sitting.  Because the crumpled notes did not appear to be regular currency, Bauer called the Secret Service, which identified them to be counterfeit.  It was stipulated at trial that the notes were counterfeit.

8
In the meantime, Gonzalez had posted bail and had been released.  At approximately 10:30 Bauer arrested Gonzalez on a charge of violating the currency laws.

9
At trial, Bauer testified that during his entire shift no one besides Gonzalez had been on the back seat of the patrol car; in fact, no one had sat on the back seat during the preceding shift.  Bauer further stated that although he had left his vehicle unattended for short periods during his shift, the back doors had always been locked or another officer had always watched the patrol car.

10
Gonzalez, challenging the sufficiency of the evidence, moved for acquittal at the end of the government's case.  He also moved for acquittal, or in the alternative for a new trial, after the jury had returned its verdict.

11
Here, the standard of review is whether, based on the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant's guilt.  United States v. Caro, 569 F.2d 411, 416 (5th Cir. 1978).  As we have said:

12
(I)f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that "the jury must necessarily have had a reasonable doubt as to the inconsistency".

13
United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975).

14
This standard accords great weight to the jury verdict but it also requires the government to meet its burden of proof.  When the evidence is such that a reasonably minded jury must have a reasonable doubt as to the existence of any element of the crime, a motion for acquittal must be granted, United States v. Pinner, 561 F.2d 1203, 1207 (5th Cir. 1977).  Applying this standard we consider the evidence in the light most favorable to the government, resolving reasonable inferences and credibility choices in favor of the verdict, United States v. Henderson, 588 F.2d 157, 161 (5th Cir. 1979); however, the government must prove every element of the crime beyond a reasonable doubt.  United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977).  This is a circumstantial evidence case but the test is the same no matter whether the evidence is direct or circumstantial.  United States v. Bright, 550 F.2d 240, 242 (5th Cir. 1977).

15
In this case, to prove a violation of 18 U.S.C. § 472, the government had to show (1) that the defendant passed or possessed counterfeit money and (2) that he did so with the intent to defraud.

16
From the evidence, as above recounted, there could be no reasonable doubt that Gonzalez possessed the counterfeit notes.  No one sat on the back seat during the preceding shift.  At the beginning of his shift Officer Bauer searched the car and found nothing.  During Officer Bauer's shift no one other than Gonzalez sat on the back seat, and the patrol car was always occupied, locked, or under surveillance by another officer.  At the end of Officer Bauer's shift, the counterfeit notes were found behind the back seat cushion exactly where Gonzalez had sat.

17
A reasonably minded jury could find beyond a reasonable doubt and to the exclusion of any other reasonable hypothesis that the notes had not been in the patrol car at the beginning of Officer Bauer's shift, that Gonzalez had possessed the notes, and that he had discarded them by removing them from his back pocket and stuffing them where they were later found, thus explaining Gonzalez's persistent squirming.

18
The more difficult question is whether the evidence was sufficient to show that Gonzalez possessed the notes with the intent to defraud, that is, the defendant knew the notes were counterfeit.  Possession or passing, standing alone, is not sufficient to establish the necessary knowledge.  United States v. Haggins, 545 F.2d 1009, 1013 (5th Cir. 1977).

19
We recently had occasion to conduct an extensive survey of Fifth Circuit jurisprudence on this subject, so we need not repeat it here.  See United States v. Slone, 601 F.2d 800, 803 (5th Cir. 1979).

20
Suffice it to say, if the evidence was sufficient to justify a verdict that Gonzalez had, with much effort while handcuffed, stuffed the counterfeit currency behind the cushion, and we have just held that it was, then it was also sufficient to justify a corresponding finding that the defendant had attempted to abandon (conceal) the counterfeit currency while under arrest.  See Slone, at 803, citing United States v. King, 326 F.2d 415 (6th Cir. 1964).

The Judgment of the District Court is

21
AFFIRMED.

*
 Circuit Judge of the Sixth Circuit, sitting by designation

1
 18 U.S.C. § 472 (1976):
Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both.


                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 23, 2014
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                    TENTH CIRCUIT

 MUSTAPHA D.R. TORAIN, #464762,

               Plaintiff - Appellant,

 v.                                                          No. 13-1502
                                                    (D.C. No. 1:13-CV-02420-LTB)
 MITCHELL R. MORRISSEY, Reg. No.                               (D. Colo.)
 13784; TIM GOSS, #05118; SASSETTI,

               Defendants - Appellees.

                              ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

       After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

       Plaintiff Mustapha Torain filed this complaint under 42 U.S.C. § 1983 while in jail

awaiting trial on state drug charges. Although his complaint was unclear, he appeared to

mainly challenge the validity of his arrest and of the criminal charges pending against

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
him. The magistrate judge concluded the complaint was deficient under Rule 8 of the

Federal Rules of Civil Procedure because the specific claims he asserted were confusing

and difficult to understand. The magistrate judge accordingly instructed Plaintiff to file

an amended complaint clearly identifying the specific claims he was asserting, the

specific facts that supported each asserted claim, the Defendants against whom he was

asserting each claim, and what each Defendant did to allegedly violate his rights. See

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The

magistrate judge also noted that federal courts may not intervene in ongoing state court

proceedings absent extraordinary circumstances. See Phelps v. Hamilton, 122 F.3d 885,

889 (10th Cir. 1997).

       Plaintiff responded to the magistrate judge’s order by filing two new pleadings and

two other documents that contained varying, and still unclear, iterations of his claims.

The district court reviewed all of the submitted pleadings and other documents and

concluded that Plaintiff had still failed to provide a short and plain statement of the claims

he was asserting. The district court accordingly dismissed the action without prejudice

for failure to file an amended pleading that complied with Rule 8.

       After thoroughly reviewing Plaintiff’s brief and the record on appeal, we see no

error in the district court’s dismissal of the action for failure to comply with Rule 8. We

also note that, to the extent Plaintiff’s complaint sought to raise a claim of malicious

prosecution or other claim challenging the validity of the pending state court charges

against him, such claims would be premature under the rule of Heck v. Humphrey, 512

                                             -2-
U.S. 477 (1994). See Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th

Cir. 1999).

        For substantially the same reasons given by the magistrate judge and district court,

we AFFIRM the district court’s order dismissing this action without prejudice. We

GRANT Plaintiff’s motion to proceed in forma pauperis on appeal and remind him of his

obligation to continue making partial payments until the entire filing fee has been paid in

full.

                                                   Entered for the Court

                                                   Monroe G. McKay
                                                   Circuit Judge

                                             -3-


        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

18
CA 16-00682
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.

CHETI CASELLA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

AJAY GLASS & MIRROR CO., INC., PEERLESS
PRODUCTS, INC., DEFENDANTS-RESPONDENTS,
THE PIKE COMPANY, INC., ROCHESTER GLASS, INC.,
AND JHC SALES CORP., DEFENDANTS.

MORRIS & MORRIS, ATTORNEYS, ROCHESTER (DEBORAH M. FIELD OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (MICHAEL F. PERLEY OF COUNSEL), FOR
DEFENDANT-RESPONDENT AJAY GLASS & MIRROR CO., INC.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (THOMAS J. SPEYER OF
COUNSEL), FOR DEFENDANT-RESPONDENT PEERLESS PRODUCTS, INC.

     Appeal from an order of the Supreme Court, Ontario County
(Frederick G. Reed, A.J.), entered January 4, 2016. The order, among
other things, granted the motion of defendant Peerless Products, Inc.,
and the cross motion of defendant Ajay Glass & Mirror Co., Inc. for
summary judgment dismissing plaintiff’s second amended complaint and
all cross claims against them.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion of defendant
Peerless Products, Inc. and the cross motion of defendant Ajay Glass &
Mirror Co., Inc. and reinstating the second amended complaint against
them, except insofar as the second amended complaint alleges breach of
warranty, and reinstating all cross claims against them, and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the bottom sash of a window that
she was attempting to close fell in and struck her. The accident
occurred in a classroom at the middle school where plaintiff was
employed as a teacher. The window was designed and manufactured by
defendant Peerless Products, Inc. (Peerless). Defendant Ajay Glass &
Mirror Co., Inc. (Ajay) purchased the window from Peerless and
installed it pursuant to a contract with the general contractor on a
remodeling project at the school that included the installation of
windows in the classroom where plaintiff was injured.
                                 -2-                            18
                                                         CA 16-00682

     Plaintiff alleged, inter alia, that the window was defectively
designed because the tilt latches, safety devices that were intended
to prevent the window from tipping inward, were prone to failure.
Plaintiff further alleged that the warnings provided with the windows
were inadequate and that Peerless and Ajay were negligent in failing
to remedy the hazard arising from the failure of the tilt latches
after they had been apprised of ongoing problems with windows of the
same model tipping inward.

     Supreme Court erred in granting the motion of Peerless and the
cross motion of Ajay seeking summary judgment dismissing the second
amended complaint and cross claims against them except insofar as the
second amended complaint alleges breach of warranty, inasmuch as
plaintiff stipulated to withdraw “all causes of action based in breach
of warranty.” We therefore modify the order accordingly. At the
outset, we reject the contention of Ajay that it established as a
matter of law that it is not subject to liability for plaintiff’s
injuries because its role in the remodeling project was limited to
that of an installer. To the contrary, Ajay’s own submissions
establish that its subcontract for that project entailed not only
installing the windows, but purchasing them from Peerless and selling
them to the general contractor, and that the purchase and sale of
windows was a regular part of Ajay’s business (see Perazone v Sears,
Roebuck & Co., 128 AD2d 15, 20-21). Thus, Ajay failed to establish
that it was not part of the chain of distribution and thus may not be
held strictly liable for the injuries to plaintiff allegedly resulting
from the defectively designed window (see generally Hoover v New
Holland N. Am., Inc., 23 NY3d 41, 53-54; Sprung v MTR Ravensburg, 99
NY2d 468, 472-473). Peerless failed to meet its burden of
establishing that the window was not defectively designed, inasmuch as
its own submissions raise triable issues of fact whether, inter alia,
the tilt latches on the window model that injured plaintiff were prone
to failure. In any event, even assuming, arguendo, that Peerless met
its burden, the affidavit of plaintiff’s expert raises triable issues
of fact whether the window was defectively designed (see Fronckowiak v
King-Kong Mfg. Co., 289 AD2d 1054, 1055).

     Inasmuch as Peerless and Ajay failed to establish that the window
was not defective at the time it was manufactured and sold, they
cannot meet their burden of establishing that the window was rendered
unsafe by subsequent modifications (see Hoover, 23 NY3d at 56). They
also failed to meet their burden of establishing their entitlement to
judgment with respect to plaintiff’s strict liability failure to warn
claim, because they failed to establish whether any warnings
concerning the failure of the tilt latches to engage were provided to
anyone at the school (see Belsinger v M&M Bowling & Trophy Supplies,
Inc., 108 AD3d 1041, 1043). Finally, the court erred in granting
those parts of the motion and cross motion seeking dismissal of the
negligent failure to warn claim, inasmuch as the submissions of
Peerless and Ajay included evidence that they were each aware, prior
to plaintiff’s accident, that the window model at issue had caused
injury by tilting inward, thus raising an issue of fact whether they
were aware that the window posed a danger without a warning (see
generally Lancaster Silo & Block Co. v Northern Propane Gas Co., 75
                              -3-                   18
                                             CA 16-00682

AD2d 55, 63-64).

Entered:   February 3, 2017         Frances E. Cafarell
                                    Clerk of the Court