607 F.2d 871
7 O.S.H. Cas.(BNA) 1802, 1979 O.S.H.D. (CCH) P 23,939BETHLEHEM STEEL CORPORATION, Petitioner,v.OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and RayMarshall, Secretary of Labor, United StatesDepartment of Labor, Respondents.
No. 79-1041.
United States Court of Appeals,Third Circuit.
Argued Sept. 6, 1979.Decided Oct. 15, 1979.

Denis V. Brenan (argued), Richard F. McMenamin, Morgan, Lewis & Bockius, Philadelphia, Pa., for petitioner.
Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., Allen H. Feldman, Acting Counsel for Appellate Litigation, Dennis K. Kade, Asst. Counsel for Appellate Litigation, Laura A. Fargas (argued), U.S. Dept. of Labor, Washington, D.C., Marshall H. Harris, Regional Sol., Philadelphia, Pa. for respondent.
Before SEITZ, Chief Judge, and GIBBONS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.

1
Bethlehem Steel Corporation (Bethlehem), the operator of a ship repair yard at Hoboken, New Jersey, petitions under section 11(a) of the Occupational Safety and Health Act, 29 U.S.C. § 660(a) (1976) (the Act), for review of an order of the Occupational Safety and Health Review Commission (OSHRC) finding that Bethlehem violated the general duty clause, section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1) (1976), and a specific safety standard, 29 C.F.R. § 1915.66(c) (1978), promulgated pursuant to section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2) (1976).  We affirm the Commission's Order finding a general duty clause violation, but set aside the Order respecting the violation of the specific safety standard.

I.

2
On January 20, 1978 five employees of Bethlehem were directed to remove from the hold of the S.S. PENTELI a 300 foot long electric cable used to provide power to the vessel from shore while it was undergoing repairs.  During the course of this operation Richard Brown, one of the employees, fell from an upper deck to a lower deck of the S.S. PENTELI, suffering injuries from which he died the same day.  As is customary in cases of industrial accidents resulting in death, a Labor Department Compliance Officer conducted an inspection of the site of the accident.  At the time of this inspection, the vessel had already sailed and only the pier alongside which it had been moored could be inspected.  On March 14, 1978, the Secretary of Labor issued a citation under section 9 of the Act, 29 U.S.C. § 658 (1976), charging Bethlehem with violations of the general duty clause, 29 U.S.C. § 654(a)(1) (1976), of the specific ship repair safety standard requiring elimination of slippery conditions in working areas of shipyards, 29 C.F.R. § 1915.51(c) (1978), and of the specific safety standard requiring the use of tag lines, 29 C.F.R. § 1915.66(c) (1978).  Bethlehem filed a timely notice of contest, and the Secretary filed a complaint to the Commission repeating the charges in the citation.  A hearing before an Administrative Law Judge resulted in a finding that Bethlehem had violated the general duty clause and the tag line standard, but not the slippery surface standard.  When Bethlehem's petition to the Commission for discretionary review was not granted, the Administrative Law Judge's order became the Final Order of the Commission, and the petition for review in this court followed.

3
The evidence presented at the hearing on the Secretary's complaint disclosed that on January 20, 1978, Hoboken and the vicinity was subjected to a severe snowstorm accompanied by high winds.  Shortly after one o'clock in the afternoon, several Bethlehem employees were directed to remove the power cable from the vessel.  The cable extended from a power source on the pier over the rail of the vessel and through a skylight on an upper deck to the engine room below.  It was fastened to the rail at approximately its midpoint.  The method normally used to remove such a power cable is hoisting it out of the engine room by crane through the skylight in several small bites, and depositing each bite on the deck until the bitter end emerges from the skylight.  Then the cable is unfastened from the rail and lifted to the pier.  Although the evidence might support other conclusions, it was the Secretary's contention that the accident occurred because, as the bitter end emerged from the skylight, the cable swung free, hitting Mr. Brown in the head, and knocking him over the rail to the deck below.  Bethlehem argues that the accident did not and could not have happened in that manner, and that neither the adverse wind and snow conditions nor the absence of tag lines on the bitter end of the cable contributed to the accident.

II.

4
Much of Bethlehem's argument concerning the way in which the accident may have occurred is misdirected, for although the occurrence of a death or serious injury may be relevant to proving a violation of the general duty clause, the statute is violated when a recognized hazard is maintained, whether or not an injury occurs.  See, e.g., Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30-31 (7th Cir. 1976); REA Express, Inc. v. Brennan, 495 F.2d 822, 825 (2d Cir. 1974); Brennan v. OSHRC (Vy Lactos ), 494 F.2d 460, 463 (8th Cir. 1974).  Moreover, an employer may be found not to have violated the general duty clause notwithstanding the occurrence of a death if the hazard was unforeseeable.  See Brennan v. OSHRC (Republic Creosoting Co.) 501 F.2d 1196, 1199-1200 (7th Cir. 1974).  Our task on review is not to look for a proximate cause relationship between the accident which preceded the inspection and the specific violation charged, but to determine whether there is substantial evidence in the record supporting the charge that the employer maintained, at the time and place alleged, a recognized hazard to the safety of its employees.

5
We have no difficulty finding such evidence here.  There is evidence that the snowstorm on January 20, 1978 had caused accumulations of 12 to 14 inches of snow on the decks of the vessel, that the mobile crane was frozen in its tracks, that visibility for the crane's operator was limited because the window of the cab had fogged up and the cab lacked wiper blades, and that high wind conditions made it difficult for the operator to control the swing of the boom.  There is in evidence a Standard promulgated by the American National Standards Institute (ANSI) and referred to in the citation, which states:

6
L. Cranes shall not be operated when wind speeds exceed 45 miles per hour or lower velocities if so recommended by the manufacturer.

7
ANSI, Portal, Tower and Piller Cranes B30.4, § 4-3.1.3L (1973).  Although, unlike many ANSI standards, this one has not been promulgated by the Secretary as a specific standard, Bethlehem's safety officer testified that it represented a consensus in the ship repair industry.  Also in evidence is the Handbook of Industrial Loss Prevention, an insurance industry publication for general usage, which, with respect to cranes recommends:

8
Wind-velocity alarms are used on large or important cranes of various types.  They should be set to give an alarm at 35 mph.

9
Factory Mutual Engineering Corp., Handbook of Industrial Loss Prevention 78-8 (2d ed.).

10
There is testimony by the OSHA Compliance Officer that during storms when the winds exceeded 30 miles per hour, other shipyards tie down a crane.  There is no dispute that the men in charge of the operation of the yard on January 20, 1978 were generally aware of the high wind conditions, because several telephone calls were placed to the Weather Service on the day of the accident.  While there is no precise record of wind speeds at the Hoboken yard on that date, three meteorological reports are in evidence.  The National Weather Service, located at Central Park, New York, to the east of Hoboken, recorded surface observations of wind speeds of between 26 and 32 m. p. h. in the relevant time period, and a gust of 46 m. p. h. between 3:00 p. m. and 4:00 p. m.  The same source recorded the highest wind speed, as distinguished from peak gusts, of 32 m. p. h. on that day.  A third meteorological report, this one from the National Weather Service Wind Observations at Newark Airport, southwest of Hoboken, reported an average wind speed of 19.3 m. p. h. and a peak gust of 42 m. p. h. recorded at 12:54 p. m.  It was not illogical for the Administrative Law Judge to conclude that on the afternoon of January 20, there were gusts exceeding 40 m. p. h. in the Hoboken shipyard.

11
From this evidence the Administrative Law Judge could have found, as he did: (1) that operation of a crane during weather conditions in which peak winds exceeded safe operating limits was a recognized hazard in the ship repair industry; (2) that such operation was likely to cause death or serious physical injury; and (3) that operation during such weather conditions in fact occurred on January 20, 1978.  There was no requirement that the Commission find that the hazard proximately caused Mr. Brown's death.

12
There is much to be said for Bethlehem's argument that a ship repair yard cannot simply suspend operations during inclement weather.  Ships sail during all seasons of the year and are committed to yards for repairs subject to contractual deadlines which must be met even if the elements are uncooperative.  The general duty clause must be applied to the ship repair industry in a manner consistent with the realities of year-round out-of-doors operation.  However, even with all of these considerations in mind, there remain recognized hazards, and we cannot say that the Commission's conclusion that operating a crane in near-blizzard conditions was such a hazard is not supported by substantial evidence.

13
We also reject Bethlehem's argument that the general duty clause is unconstitutionally vague.  The "recognized hazard" standard, in our view, gives industrial employers fair notice of the conduct they must avoid.

III.

14
Bethlehem is also charged with a violation of the specific safety standard requiring the use of tag lines.  29 C.F.R. § 1915.66(c) (1978).  This standard does not apply to every load, but only to loads "likely to swing or to need guidance."  Id.  It is undisputed that tag lines were not used on the cable in question.  The Secretary relies on the testimony of the OSHA Compliance Officer as evidence that tag lines should have been fastened to the bitter end of the cable to prevent it from swinging as it emerged from the skylight.  On close examination, however, that testimony indicates that the Compliance Officer believed that Every load lifted by a crane ought to be guided by tag lines.  The ship repair standard does not so provide.  Joseph LaRocca, a rigging expert, testified that a cable being lifted by a crane would be unlikely to swing even if the crane stopped suddenly.  Joseph P. Eagen, a safety engineer, testified that in his considerable experience he had never seen a tag line used in lifting uncoiled cable in any shipyard on the east coast.  He expressed the opinion that such lines are not necessary because the cable is not likely to swing, and because its movement is controllable without their use.  Against this unequivocal testimony of recognized experts that tag lines are not generally used on dangling cables and that persons knowledgeable in the industry consider such loads unlikely to swing, the opinion of the Compliance Officer, which is actually at variance with the promulgated safety standard, is not substantial evidence upon which the Commission can predicate a violation of a generally worded safety standard.  See B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1372 (5th Cir. 1978).

IV.

15
Bethlehem, relying on Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), contends that the order of the Commission should not be enforced because the inspection of Bethlehem's shipyard was accomplished without a warrant.  No fourth amendment objection was made at the time of the inspection.  Bethlehem urges that since the inspection occurred prior to the decision, on May 23, 1978, in Barlow's, its compliance with the demand for a warrantless entry should not be deemed a knowing and voluntary waiver of its fourth amendment rights.  See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).  We need not, however, decide either the waiver question or the related question of whether Barlow's should apply to inspections carried out prior to May 23, 1978.  In this case the facts surrounding the search were known to Bethlehem, and the administrative hearing was not held until June 20, 1978, four weeks after Barlow's was filed.  This statute upon which our authority to review depends provides that "(n)o objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."  29 U.S.C. § 660(a) (1976).  Bethlehem contends that this provision should not apply to a constitutional claim because an administrative agency is not competent to decide such a claim.  See Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).  Conceding, arguendo, that an administrative agency is not ordinarily considered the appropriate forum for the resolution of constitutional claims, we think there are compelling reasons for insisting that fourth amendment claims for the suppression of evidence in OSHA enforcement cases be tendered first to the Commission.  Those claims in most cases, if not all, require the development of a factual record concerning such issues as consent, waiver, and emergency.  Under the enforcement and review scheme of the Occupational Safety and Health Act, 29 U.S.C. §§ 658-660 (1976), the Commission is the only tribunal available for the development of a factual record.  If we were to hold that these constitutional arguments need not be presented to the Commission, the alternative would be either separate litigation in a district court, which has facilities for making a record, or factfinding in this court, which lacks such facilities.  Assuming we could find a statutory justification for either course, neither is attractive.  Thus we hold that fourth amendment claims must be presented, in the first instance, to the Commission.  See Marshall v. Able Contractors, Inc., 573 F.2d 1055, 1057 (9th Cir.)  (per curiam), Cert. denied, 439 U.S. 826, 99 S.Ct. 98, 58 L.Ed.2d 119 (1978).

16
We could, of course, remand for factfinding on the fourth amendment claim.  However, because at least four weeks elapsed after the filing of the Barlow's decision, during which Bethlehem could have raised the issue before the Commission, we find no "extraordinary circumstances" justifying a remand.  Cf. Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683, 688-89 (9th Cir. 1978).  Thus we decline to consider Bethlehem's fourth amendment contention.

V.

17
Finally, Bethlehem urges that the Commission's order should be set aside because the Secretary's citation was not issued with the "reasonable promptness" required by section 9(a) of the Act, 29 U.S.C. § 658(a) (1976).  Seven weeks elapsed between the inspection and the issuance of the citation.  No showing has been made that Bethlehem was in any way prejudiced by the delay.  In United States Steel Corp. v. OSHRC, 537 F.2d 780 (3d Cir. 1976), we rejected a construction of section 9(a) that would have imposed a mechanical time period for the issuance of citations.  Id. at 784.  Cases in other courts have reached the same conclusion.  See United Parcel Serv. v. OSHRC, 570 F.2d 806, 809-10 (8th Cir. 1978); Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1329-30 (9th Cir. 1977) (per curiam); Brennan v. Chicago Bridge & Iron Co., 514 F.2d 1082, 1085 (7th Cir. 1975) (per curiam).  We hold that at least in the absence of any showing by the respondent of prejudice resulting from delay in issuing the citation, a delay of seven weeks between an inspection and the issuance of a citation does not require its dismissal.

VI.

18
The order finding a violation of 29 C.F.R. § 1915.66(c) is not supported by substantial evidence and will be set aside.  The order finding a violation of the general duty clause by the operation of a crane in near-blizzard conditions is so supported and will be affirmed.  Each party will bear its own costs.


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/27/2020 09:06 AM CDT

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                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                                              Cite as 305 Neb. 396

                       State of Nebraska ex rel. Counsel for Discipline
                         of the Nebraska Supreme Court, relator, v.
                             Evangelos A. Argyrakis, respondent.
                                                  ___ N.W.2d ___

                                        Filed March 27, 2020.    No. S-19-059.

                 1. Disciplinary Proceedings. Because attorney discipline cases are origi-
                    nal proceedings before the Nebraska Supreme Court, the court reviews a
                    referee’s recommendations de novo on the record, reaching a conclusion
                    independent of the referee’s findings.
                 2. Disciplinary Proceedings: Rules of the Supreme Court. Under Neb.
                    Ct. R. § 3-304, the Nebraska Supreme Court may impose one or more
                    of the following disciplinary sanctions: (1) disbarment; (2) suspension;
                    (3) probation, in lieu of or subsequent to suspension, on such terms
                    as the court may designate; (4) censure and reprimand; or (5) tempo-
                    rary suspension.
                 3. Disciplinary Proceedings. To determine whether and to what extent
                    discipline should be imposed in an attorney discipline proceeding, the
                    Nebraska Supreme Court considers the following factors: (1) the nature
                    of the offense, (2) the need for deterring others, (3) the maintenance of
                    the reputation of the bar as a whole, (4) the protection of the public, (5)
                    the attitude of the respondent generally, and (6) the respondent’s present
                    or future fitness to continue in the practice of law.
                 4. ____. Each attorney discipline case must be evaluated in light of its
                    particular facts and circumstances.
                 5. ____. For purposes of determining the proper discipline of an attor-
                    ney, the Nebraska Supreme Court considers the attorney’s actions both
                    underlying the events of the case and throughout the proceeding, as well
                    as any aggravating or mitigating factors.
                 6. ____. In attorney discipline cases, the propriety of a sanction must
                    be considered with reference to the sanctions imposed in prior simi-
                    lar cases.
                              - 397 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
          STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                        Cite as 305 Neb. 396

  Original action. Judgment of disbarment.

  Julie L. Agena, Assistant Counsel for Discipline, for relator.

  Evangelos A. Argyrakis, pro se.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.

  Per Curiam.
                      NATURE OF CASE
   The issue in this attorney discipline proceeding is what
discipline should be imposed on Evangelos A. Argyrakis for
violating the Nebraska Rules of Professional Conduct.
   Argyrakis pleaded no contest to knowing and intentional
abuse, neglect, or exploitation of a vulnerable adult or senior
adult, a Class IIIA felony. At the plea hearing, when asked for
a factual basis for the plea, the prosecutor said that if the mat-
ter proceeded to trial, the State would show that Argyrakis,
in the course of a verbal argument, repeatedly punched his
83-year-old father in the face, resulting in observable inju-
ries. Neither Argyrakis nor his counsel objected to the fac-
tual basis.
   The referee recommended disbarment, and after our review,
we conclude that disbarment is the proper sanction.

                      BACKGROUND
Procedural History.
   Argyrakis was admitted to the practice of law in Nebraska
on September 14, 1992. At all times relevant to these pro-
ceedings, he was licensed to practice law in the State of
Nebraska.
   Argyrakis was initially charged in the district court for
Douglas County with strangulation, a Class IIIA felony. The
information, filed May 10, 2018, identified the victim as
Argyrakis’ father and alleged that the crime took place on
April 8.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
          STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                        Cite as 305 Neb. 396

   On June 25, 2018, the relator hand-delivered to Argyrakis a
letter notifying him that he was under investigation in connec-
tion with the pending criminal case and asking him to provide
a written response within 15 working days. A few days later,
Argyrakis sent an email to the relator in which he stated that
“[t]his matter was a domestic dispute where I was not the
aggressor.” He requested that the relator await the conclusion
of the criminal proceedings before continuing the investiga-
tion. The relator notified Argyrakis that any further action
would be withheld until the criminal case was resolved, but
also asked that Argyrakis advise the relator as to the status of
the case.
   On September 24, 2018, Argyrakis pleaded no contest to an
amended information charging him with knowing and inten-
tional abuse, neglect, or exploitation of a vulnerable adult or
senior adult, a Class IIIA felony. The amended information
again identified the victim as Argyrakis’ father and alleged
that the crime was committed on April 8. He was sentenced to
3 years’ probation, with terms that included chemical testing
and a mental health evaluation. Argyrakis failed to report the
plea and sentencing to the relator.
   After the Committee on Inquiry of the Second Judicial
District concluded that there were reasonable grounds for
discipline of Argyrakis and that the public interest would
be served by the filing of formal charges, formal charges
were filed against Argyrakis on January 23, 2019. The for-
mal charges alleged that Argyrakis had violated the Nebraska
Rules of Professional Conduct by committing a criminal act
that reflected adversely on his honesty, trustworthiness, or fit-
ness as a lawyer in other respects. Argyrakis filed an answer
to the formal charges in which he admitted allegations regard-
ing the fact of his conviction and sentence, but failed to either
admit or deny whether he violated the Nebraska Rules of
Professional Conduct.
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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
          STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                        Cite as 305 Neb. 396

Hearing.
   On May 3, 2019, a hearing on the formal charges was com-
menced. Argyrakis represented himself at the hearing.
   The relator offered certified copies of documents reflect-
ing the charges, plea agreement, and sentence in the criminal
case. The relator also called Argyrakis to testify. In his testi-
mony, Argyrakis admitted that he pleaded no contest to and
was found guilty of vulnerable adult abuse against his father.
Argyrakis denied that he was convicted of a crime of violence,
because, in his words, he “was not the aggressor.” Argyrakis
also acknowledged that since 2010, he had seen five different
doctors for mental health therapy and medication manage-
ment; that he had undergone two mental health evaluations,
one prior to the April 2018 incident and one after; and that
he was currently taking three different medications for mental
health issues.
   After being questioned by counsel for the relator, Argyrakis
made a statement under oath. He stated that during his child-
hood, his father physically and emotionally abused him and
that he witnessed his father physically abusing his mother. He
testified to his belief that he had always represented clients dil-
igently and effectively and that no clients had ever complained
about his services. He also testified that he did not intend to
harm his father, that he had attempted to get help for the cir-
cumstances that led to the incident, and that he did not believe
a similar incident would happen again.
   Argyrakis also called Regina Schulze to testify. Schulze,
a licensed independent mental health professional, testified
that she began providing weekly mental health counseling to
Argyrakis in December 2018. Schulze diagnosed Argyrakis
with depressive disorder, panic disorder, and post-traumatic
stress disorder. She testified to her opinion that these issues
contributed to the incident between Argyrakis and his father
and that she did not expect any physical altercations in the
future. On cross-examination, she admitted that she based these
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
          STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                        Cite as 305 Neb. 396

conclusions solely upon information provided by Argyrakis
and that she had not reviewed any of his prior medical records,
mental health evaluations, or other documentation concerning
his condition.
   Following the close of evidence, the referee directed the
parties to file briefs addressing whether Argyrakis was con-
victed of a crime of violence. The referee expressed hesitation
as to whether the crime of abuse of a vulnerable adult would
always constitute a crime of violence. In particular, the referee
observed that the crime could be committed through neglect
or exploitation, and he noted that it was not clear that would
amount to a crime of violence.
   On May 9, 2019, the relator filed a motion to reopen the
record. The relator sought to supplement the record with the
transcript of the plea proceedings in Argyrakis’ criminal case.
The relator contended it was relevant to the issue of whether
Argyrakis committed a crime of violence. The referee took the
motion under advisement, but allowed the relator to condition-
ally proceed with the evidence.
   When allowed to proceed with evidence, the relator intro-
duced the transcript of the proceeding in which Argyrakis
entered his plea in the criminal case. At that proceeding, the
prosecutor said that the State was pursuing the charge against
Argyrakis on the ground that he physically injured his father.
Further, when asked for the factual basis for the plea, the pros-
ecutor stated that if the matter proceeded to trial, the evidence
would show that during an argument between Argyrakis and
his 83-year-old father, Argyrakis repeatedly punched his father
in the face, causing observable injuries. Neither Argyrakis
nor his counsel objected to the factual basis for the plea, and
Argyrakis stated on the record that he was satisfied with the
representation provided by his counsel.
   The referee later granted the motion to reopen the record.
Referee’s Report.
   The referee filed a report and recommendation. The ref-
eree found, by clear and convincing evidence, that Argyrakis
                                   - 401 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
            STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                          Cite as 305 Neb. 396

violated Neb. Ct. R. of Prof. Cond. § 3-508.4(b) (rev. 2016)
and his oath of office as an attorney.
   The referee specifically analyzed whether Argyrakis was
convicted of a crime of violence. The referee concluded such
analysis was necessary based on his understanding that this
court ruled in State ex rel. Counsel for Dis. v. Walz 1 that dis-
barment is the appropriate sanction for conviction of a fel-
ony crime of violence “absent extraordinary mitigation.” The
referee concluded that Argyrakis was convicted of a crime
of violence.
   The referee also considered potential mitigating circum-
stances. He found that Argyrakis’ lack of a prior disciplinary
record in over 25 years of practice was a mitigating circum-
stance. He found that Argyrakis had not accepted responsibil-
ity for his misconduct and that thus, that was not available as a
mitigating circumstance. He also found that Argyrakis’ mental
health diagnosis should not be considered in mitigation. The
referee explained that under State ex rel. Counsel for Dis. v.
Thompson, 2 in order for mental health to be considered in mit-
igation, Argyrakis was required to show (1) medical evidence
that he is affected by a mental health condition, (2) that the
condition was a direct and substantial contributing cause to the
misconduct, and (3) that treatment of the condition will sub-
stantially reduce the risk of further misconduct. The referee
concluded that Argyrakis had not made the required showing
under Thompson, explaining little weight could be afforded
to Schulze’s opinions that a mental health issue caused his
misconduct and that treatment of the condition would sub-
stantially reduce the risk of further misconduct, because those
opinions were formed solely on the basis of self-reporting
by Argyrakis.
   The referee recommended disbarment.
1
    State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566, 869 N.W.2d 71
    (2015).
2
    State ex rel. Counsel for Dis. v. Thompson, 264 Neb. 831, 652 N.W.2d 593
    (2002).
                                  - 402 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
            STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                          Cite as 305 Neb. 396

                  ASSIGNMENT OF ERROR
   Neither party has taken exception to the report of the ref-
eree. Therefore, the only issue is the appropriate sanction under
the circumstances. Argyrakis opposes the referee’s recommen-
dation and the relator’s request for disbarment.
                   STANDARD OF REVIEW
   [1] Because attorney discipline cases are original proceed-
ings before this court, we review a referee’s recommendations
de novo on the record, reaching a conclusion independent of
the referee’s findings. 3
                          ANALYSIS
   Neither party filed exceptions to the referee’s report and
recommendation. In those circumstances, the court may, at its
discretion, adopt the findings of the referee as final and con-
clusive. 4 We therefore adopt the referee’s findings that clear
and convincing evidence establishes that Argyrakis violated
§ 3-508.4(b) and his oath of office as an attorney. The only
issue remaining for this court’s consideration is the appropri-
ate sanction.
   [2-6] Under Neb. Ct. R. § 3-304, this court may impose one
or more of the following disciplinary sanctions: (1) disbarment;
(2) suspension; (3) probation, in lieu of or subsequent to sus-
pension, on such terms as the court may designate; (4) censure
and reprimand; or (5) temporary suspension. 5 To determine
whether and to what extent discipline should be imposed in
an attorney discipline proceeding, we consider the following
factors: (1) the nature of the offense, (2) the need for deter-
ring others, (3) the maintenance of the reputation of the bar
as a whole, (4) the protection of the public, (5) the attitude of
3
    State ex rel. Counsel for Dis. v. Gast, 296 Neb. 687, 896 N.W.2d 583
    (2017).
4
    Neb. Ct. R. § 3-310(L) (rev. 2014).
5
    State ex rel. Counsel for Dis. v. Nimmer, 300 Neb. 906, 916 N.W.2d 732
    (2018).
                                     - 403 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
              STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                            Cite as 305 Neb. 396

the respondent generally, and (6) the respondent’s present or
future fitness to continue in the practice of law. 6 Each attorney
discipline case must be evaluated in light of its particular facts
and circumstances. 7 For purposes of determining the proper
discipline of an attorney, we consider the attorney’s actions
both underlying the events of the case and throughout the
proceeding, as well as any aggravating or mitigating factors. 8
Furthermore, the propriety of a sanction must be considered
with reference to the sanctions imposed in prior similar cases. 9
We will proceed to consider each of these issues in turn.

Consideration of Traditional
Sanction Factors.
   In Walz, we discussed how the factors we regularly consider
in formulating an appropriate sanction for attorney misconduct
apply when an attorney is convicted of a crime of violence. 10
In the course of discussing the nature of the offense and the
need for deterrence, we observed that offenses involving vio-
lence require discipline and that the sanction must be tailored
to maintain public confidence in the bar. 11 We also noted that
the factor requiring consideration of protection of the public is
not merely concern for a physical danger to the public, but also
requires consideration of whether it is in the public interest to
allow an attorney who has committed a crime of violence to
keep practicing law. Finally, we emphasized that even if no
clients are harmed, “an attorney’s conviction of a felony for a
crime of violence requires a severe sanction.” 12
 6
     State ex rel. Counsel for Dis. v. Jorgenson, 302 Neb. 188, 922 N.W.2d 753
     (2019).
 7
     Nimmer, supra note 5.
 8
     Id.
 9
     Id.
10
     Walz, supra note 1.
11
     Id. (citing § 3-508.4, comment 2).
12
     Id. at 576, 869 N.W.2d at 77.
                              - 404 -
          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
          STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                        Cite as 305 Neb. 396

   The foregoing discussion from Walz regarding the appro-
priate sanction when an attorney is convicted of a crime of
violence is applicable in this case. We classified the conviction
at issue in Walz as a crime of violence when it did not involve
actual physical violence, but the threat to commit such vio-
lence. Here, the factual basis offered for Argyrakis’ no contest
plea, to which Argyrakis did not object, was that Argyrakis
committed an act of actual physical violence by repeatedly
punching his 83-year-old father in the face.
   This case is similar to Walz with respect to another tradi-
tional factor bearing on the appropriate sanction—the attitude
of the respondent. In Walz, the attorney insisted on her inno-
cence despite entering a no contest plea to making terroristic
threats. We stated that it was not our task to review a crimi-
nal conviction in attorney disciplinary proceedings and that
because the respondent insisted on her innocence, she had not
accepted responsibility for her actions. For similar reasons, we
cannot say that Argyrakis has accepted responsibility in this
case. Although Argyrakis seems to concede that he did, in fact,
inflict physical violence on his elderly father, throughout the
proceedings, he has attempted to minimize his culpability by
insisting that he was not the aggressor in the encounter and that
his actions were in self-defense. As in Walz, it is not our task to
review the conviction. And rather than accepting responsibility
for that conviction, Argyrakis is attempting to assign at least
partial responsibility for it to others.

Consideration of Mitigating Factors.
   Also relevant to the appropriate sanction in an attorney dis-
cipline case is the existence of any mitigating factors. Here,
the referee found one mitigating factor: the absence of any
prior disciplinary issues in Argyrakis’ over 25 years of practice.
We agree with the referee that this is a factor to be considered
in mitigation.
   We also do not disagree with the referee’s conclusion that
Argyrakis’ mental health issues were entitled to little weight in
                                     - 405 -
              Nebraska Supreme Court Advance Sheets
                       305 Nebraska Reports
              STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                            Cite as 305 Neb. 396

mitigation. In Thompson, we held that in order for depression
to be considered as a mitigating circumstance, the respondent
must show (1) medical evidence that he or she is affected by
depression, (2) that the depression was a direct and substantial
contributing cause to the misconduct, and (3) that treatment of
the depression will substantially reduce the risk of further mis-
conduct. 13 We see no reason not to require the same showing in
order to consider other mental health conditions as a mitigat-
ing circumstance.
    Argyrakis attempted to introduce evidence of his mental
health issues through Schulze. And though Schulze testified
that she had diagnosed Argyrakis with mental health condi-
tions, that she believed those conditions caused his misconduct,
and that treatment of those conditions would reduce the risk
of further misconduct, we agree with the referee that there
are compelling reasons that this testimony should be accorded
little weight. Schulze did not begin seeing Argyrakis until after
the incident underlying his criminal conviction. And despite
Argyrakis’ acknowledgment that he had been treated by mul-
tiple doctors for mental health issues several years before the
incident and that he had undergone mental health evaluations
before and after the incident, Schulze did not consider any of
this information in forming her opinions. Rather, she admitted
that her opinions were based solely on information reported by
Argyrakis. Because Schulze’s opinions were formed without
considering what would seem to be highly relevant informa-
tion and mindful of the fact that the referee heard and observed
Schulze during her testimony and determined that it should be
given little weight, 14 we find that Argyrakis has not made the
required showing to allow his mental health issues to be con-
sidered in mitigation.

13
     Thompson, supra note 2.
14
     See State ex rel. NSBA v. McArthur, 257 Neb. 618, 599 N.W.2d 592 (1999)
     (while attorney discipline proceeding is trial de novo on record, court may
     give weight to referee’s findings on matters of disputed fact).
                                     - 406 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
              STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                            Cite as 305 Neb. 396

    In his brief before us and at oral argument, Argyrakis con-
tended that other factors should be considered in mitigation.
He claimed that he was not the aggressor in the incident with
his father and that the decision to prosecute him was politically
motivated. We see no other mitigating factors. As noted above,
it is not our function to review his conviction. Further, there is
no evidence in the record supportive of his theory of a politi-
cally motivated prosecution.
Comparison to Prior Cases.
   Each attorney discipline case must be evaluated individually
in light of its particular facts and circumstances. 15 In addi-
tion, the propriety of a sanction must also be considered with
reference to the sanctions imposed in prior similar cases. 16
Walz appears to be the only truly similar prior case for us to
consider here. In Walz, we noted that there are few Nebraska
cases of attorney discipline involving felony convictions of
any kind and that Walz was the first case to involve a crime
of violence. 17
   In Walz, the respondent was first charged with second degree
domestic assault and use of a weapon to commit a felony.
The State alleged that she assaulted her husband with a knife.
Pursuant to a plea agreement, the respondent pleaded no con-
test to one count of making terroristic threats. The respondent
maintained her innocence. We found that her felony conviction
for a crime of violence damaged the reputation of the bar and
threatened public confidence in the profession. We disbarred
the respondent from the practice of law.
   This case bears a number of similarities to Walz. Like the
respondent in Walz, Argyrakis pleaded no contest to a felony
crime of violence. And like the respondent in Walz, Argyrakis
did not accept responsibility for his conviction.
15
     State ex rel. Counsel for Dis. v. Riskowski, 272 Neb. 781, 724 N.W.2d 813
     (2006).
16
     Id.
17
     Walz, supra note 1.
                                     - 407 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
              STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                            Cite as 305 Neb. 396

    There are, to be sure, differences between this case and
Walz. As Argyrakis points out, the respondent in Walz also
had no prior disciplinary history, but we pointed out that she
had been in practice for only about 6 months before the mis-
conduct occurred. This is obviously entitled to less weight
than Argyrakis’ over 25 years of practice without discipli
nary issues. In addition, there was explicit testimony from
the respondent’s psychologist in Walz that she was not, at that
time, fit to practice law. No similar testimony was offered in
Argyrakis’ case.
    But not all of the differences between this case and Walz
tilt in Argyrakis’ favor. As we have previously noted, the
conviction in Walz was for making threats to use violence,
while the conviction here involves actual physical violence
on an elderly person. Further, the conviction in this case was
for a Class IIIA felony, more serious than the Class IV felony
in Walz. In addition, although both the respondent in Walz
and Argyrakis did not accept responsibility for their convic-
tions, the respondent in Walz was found to be fully coop-
erative with the Counsel for Discipline. The same cannot be
said for Argyrakis. Argyrakis failed to notify the Counsel for
Discipline that he had entered a plea and been sentenced in
his criminal case, despite the request to keep the Counsel for
Discipline informed.
    In sum, this case is highly similar to Walz and any differ-
ences that cut in favor of a less serious sanction are counter-
balanced by differences that cut in the opposite direction.
Sanction.
   In Walz, we observed that while we have not stated a
“‘bright line rule,’” 18 our cases regarding the appropriate disci-
pline for felony convictions have generally concluded that such
convictions reflect adversely upon a lawyer’s fitness to practice
law and that disbarment is the appropriate sanction. As in Walz,
we believe it is necessary to convey the serious consequences
18
     Id. at 575, 869 N.W.2d at 77.
                             - 408 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
          STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
                        Cite as 305 Neb. 396

that attach to a conviction for a crime of violence. Such a con-
viction damages the reputation of the bar and threatens public
confidence in the profession. For these reasons, we conclude,
after considering the appropriate factors, that disbarment is the
appropriate sanction in this case.
                        CONCLUSION
   Argyrakis violated § 3-508.4(b) (misconduct) and his oath
of office as an attorney. It is the judgment of this court that
Argyrakis is disbarred from the practice of law in the State of
Nebraska, effective immediately. He is directed to comply with
Neb. Ct. R. § 3-316 (rev. 2014), and upon failure to do so, he
shall be subject to punishment for contempt.
                                   Judgment of disbarment.


             3Jn tbc Wnitcb �tatcs <!Court of jfcbcral <!tlaitns
                                            No. 19-696C

                                        (Filed: July 19, 2019)

                                     (NOT TO BE PUBLISHED)

                                               )
 ROGER ELLIOTT,                                )
                                               )
                        Plaintiff,             )
                                               )
        v.                                     )
                                               )
 UNITED STATES,                                )
                                               )
                        Defendant.             )
_____ _ _
        _______                                )

       Roger Elliott,pro se, Church Hill, Tennessee.

       Joshua A. Mandlebaum, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,
Director, and Elizabeth M. Hosford, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.

                                      OPINION AND ORDER
LETTOW, Senior Judge.

        Plaintiff Roger Elliott has brought suit seeking relief that would order the "end of due[]
process violations to protect high level bureaucrats," con-ect an employment form, and vacate a
Fourth Circuit decision entered in 2001. Comp!. at 2, ECF No. 1. 1 Mr. Elliott also seeks $1.6
million in compensation. Comp!. Ex. 2 at I (civil cover sheet). The United States ("the
government") has moved to dismiss the complaint pursuant to Rule 12(b)(I) of the Rules of the
Court of Federal Claims ("RCFC"). See Def.'s Mot. to Dismiss Pro Se Comp!. ("Def.'s Mot."),
ECF No. 5. Mr. Elliott filed a response on July 12, 2019. PL 's Resp. to Mot. to Dismiss ("PL 's
Resp."), ECF No. 6. The government replied on July 17, 2019. Def. 's Reply in Supp. of its Mot.
to Dismiss the Compl. (Def. 's Reply"), ECF No. 7.

       Because this court lacks subject-matter jurisdiction over the claims, the government's
motion to dismiss Mr. Elliott's complaint is GRANTED.

       1 Citations to
                    the complaint and its attachments con-espond to the page marking as
reproduced in the Electronic Case Filing system.

                                                                              7018 0040 0001 1393 1846


                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                               No. 10-6702

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHEILA DENISE WHITE,

                Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.          Richard L.
Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-17)

Submitted:   August 26, 2010                 Decided:   September 3, 2010

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Sheila Denise White, Appellant Pro Se.       Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Sheila Denise White appeals the district court’s order

denying her motion for reduction of sentence under 18 U.S.C.

§ 3582(c)(2) (2006).        We have reviewed the record and find no

reversible error.    Accordingly, we affirm for the reasons stated

by the district court.       See United States v. White, No. 5:05-cr-

00009-RLV-DCK-17 (W.D.N.C. Apr. 29, 2010).                  We dispense with

oral   argument   because      the    facts   and   legal    contentions    are

adequately    presented   in    the    materials    before    the   court   and

argument would not aid the decisional process.

                                                                     AFFIRMED

                                        2


961 F.2d 524
UNITED STATES of America, Plaintiff-Appellant,v.Lynda Marie KELLY, Defendant-Appellee.
No. 91-5554Summary Calendar.
United States Court of Appeals,Fifth Circuit.
May 13, 1992.

LeRoy Morgan Jahn, Diane D. Kirstein, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., and Charlie Strauss, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellant.
P. Joseph Brake, Philip J. Lynch, Asst. Federal Public Defenders, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:

1
The Government appeals the district court's order granting defendant-appellee Lynda Marie Kelly's (Kelly) motion to suppress evidence.   Concluding that the district court erred as a matter of law, we reverse and remand.

Facts and Proceedings Below

2
At approximately 1:10 a.m. July 19, 1990, Kerr County Deputy Sheriff James Trolinger (Trolinger) was patrolling on Interstate Highway 10 in Kerr County, when he spotted a 1990 Nissan with California license plates that appeared to be speeding.   Trolinger turned on his radar and confirmed that the Nissan was going eighty-four miles per hour in a sixty-five miles per hour zone.   Trolinger stopped the car.   Kelly's codefendant, Donald Craig McCaney (McCaney), was driving, and Kelly was riding in the passenger seat.   Trolinger radioed his location and the California license plate number of the Nissan to the sheriff's office dispatcher.

3
Trolinger then approached the Nissan.   McCaney rolled down his window, and as Trolinger walked forward, he could smell the odor of burnt marijuana.   Trolinger asked McCaney for his license and proof of insurance;  McCaney handed Trolinger a folded piece of paper with his name, California address, and driver's license number on it.   Kelly handed Trolinger a driver's license with her picture.   Trolinger asked McCaney if he had a valid driver's license.   McCaney answered affirmatively, but that the folded paper was all that he had with him.   Trolinger asked who owned the Nissan.   Kelly responded that it was a rental, but was unable to find the rental papers.

4
Trolinger then heard through the ear piece of his portable radio the sheriff's office advice that the Nissan was reported stolen.   While waiting for confirmation, Trolinger asked McCaney and Kelly to step out of the car and walk to its rear.   McCaney asked what was wrong, and Trolinger responded that he simply wanted to make sure that McCaney's driver's license was valid.   Both McCaney and Kelly consented to a pat down, but no weapons were found.   Trolinger then separated McCaney and Kelly and questioned them individually about their destination.   Kelly purportedly responded that they were going to San Antonio to visit McCaney's sick relatives.   McCaney answered that they were headed to San Antonio to see Kelly's sick friends.

5
Ten minutes after the initial stop, Deputy Sheriff Philip Karasek (Karasek) arrived at the scene as backup.   Trolinger told Karasek that he had smelled marijuana emanating from the car and asked Karasek to check inside the vehicle for weapons or narcotics.   Karasek leaned his head into the car and saw a box of ammunition lying on top of a sports bag on the back seat.   Karasek reported his discovery to Trolinger.   McCaney and Kelly were then arrested, handcuffed, and read their rights.

6
After arresting McCaney and Kelly, Trolinger proceeded to search the passenger compartment of the car.   In the back seat, he saw the open black bag with a box of ammunition lying on top that Karasek had seen.   Trolinger removed the ammunition and reached inside the bag, where he felt a handgun that he removed.   The gun was loaded.   In a compartment on the side of the bag facing the front seat, Trolinger found a small clear plastic bag containing numerous other small ziplock bags.1  Continuing his search, Trolinger found three marijuana cigarette butts in the front ashtray and marijuana residue all over the floorboard in the front seat.

7
Approximately twenty-five minutes after the initial stop, Trolinger received confirmation that the Nissan was stolen.   The officers seized the vehicle to impound it and informed Kelly and McCaney that they were under arrest for the unauthorized use of a motor vehicle.2

8
Pursuant to the Kerr County Sheriff Department's unwritten policy to inventory all impounded vehicles, Trolinger and Karasek inventoried the car and its contents.   Two pagers were found in the front seat and were seized.   Under the hood, between a firewall and the quarter panel on the driver's side, Trolinger and Karasek found a paper bag.   Inside the bag was a white plastic package wrapped with masking tape.   They slit the plastic bag and found approximately 900 grams of cocaine inside.   Both McCaney and Kelly were then transported to Kerrville.

9
McCaney was indicted for conspiracy to possess with intent to distribute and aiding and abetting the possession with intent to distribute in excess of 500 grams of cocaine.   Before his bench trial, McCaney filed a motion to suppress the cocaine, which was carried with the bench trial.   At the close of the evidence, the district court granted McCaney's motion to suppress as to the cocaine found under the hood and acquitted him.   The district court noted that the officers had a right to search inside the car and stated that they had sufficient probable cause to obtain a warrant to search under the hood.   The district court found, however, that the search under the hood was not proper without a warrant as a valid inventory search because there was not sufficient proof as to the Kerr County Sheriff's Department's inventory policy.

10
Kelly was indicted for possession of cocaine with intent to distribute, and possession of a firearm during, and in relation to, a narcotics offense.   Kelly filed a motion to suppress the evidence seized from the car and a motion to dismiss the indictment.   The district court held a hearing on the motions on January 14, 1991.   The transcripts of the testimony by Trolinger and Kelly from McCaney's trial were admitted as exhibits.   The transcript of the district court's oral ruling on the motion to suppress in McCaney's case was also admitted as an exhibit.   The district court granted the motion to suppress with regard to the cocaine found under the hood on the basis that it was not a proper inventory search.3  The district court subsequently entered an order granting the motion to suppress based on the findings of fact and conclusions of law orally made part of the record in McCaney's trial.   The Government timely filed a notice of appeal.

Discussion

11
The Government contends that the district court erred in granting Kelly's motion to suppress on three grounds.   First, the Government argues that Kelly lacked standing to complain that the search of the engine compartment violated her Fourth Amendment rights.   Second, it contends that the search of the engine was valid because it was based on probable cause.   Finally, the Government urges that the district court erred in finding that the search of the engine was not conducted as part of a lawful inventory search of an impounded car.   Because we find that the search was a proper warrantless automobile search based on probable cause, we do not reach the first or third issues.

12
The Government argues that the search was a valid warrantless automobile search because it was supported by probable cause.   Kelly responds that this issue has been waived because the Government did not raise it at the suppression hearing.   While we will address the issue of waiver in more detail infra, we simply note at the outset that the issue of adequate probable cause was at least partially raised before the district court.4  Furthermore, the district court explicitly found that sufficient probable cause existed for the officers to have obtained a search warrant authorizing the search of the engine compartment.   The district court granted the motion to suppress not because it concluded that probable cause did not exist on the facts (indeed it found the exact opposite), but because it erroneously believed that a search warrant was necessary to search the engine compartment, despite the existence of probable cause to search the passenger compartment.

13
With regard to the substance of the Government's argument, it is well-established that warrantless searches of automobiles are permitted by the Fourth Amendment if supported by probable cause.   See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2164-65, 72 L.Ed.2d 572 (1982).   In Ross, the Supreme Court confronted the issue of the scope of a warrantless automobile search:

14
"The scope of a warrantless search based on probable cause is no narrower--and no broader--than the scope of a search authorized by a warrant supported by probable cause.   Only the prior approval of the magistrate is waived;  the search otherwise is as the magistrate could authorize."  Id. 102 S.Ct. at 2172.

15
The Court concluded that "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."   Id. at 2173;   see also United States v. Sanchez, 861 F.2d 89, 92 (5th Cir.1988).

16
"Probable cause determinations are not to be made on the basis of factors considered in isolation, but rather on the totality of the circumstances."  United States v. Reed, 882 F.2d 147, 149 (5th Cir.1989).  "The factors relevant to probable cause are not technical ones, but rather 'factual and practical ones of everyday life on which reasonable and prudent persons, not legal technicians, act.' "  Id. (quoting United States v. Tarango-Hinojos, 791 F.2d 1174, 1176 (5th Cir.1986)).

17
In the present case, Trolinger and Karasek observed numerous factors that led them to believe that the vehicle contained contraband.   First, Trolinger stopped the car in which Kelly was a passenger for speeding.   McCaney, the driver of the car, did not have a valid driver's license, and Trolinger discovered that the car was reported stolen.   As Trolinger approached the car, he detected "the distinct odor of burnt marijuana."   Id.  We have previously held that this in itself would have justified the subsequent search of the car, including locked compartments like the trunk.   Id.;  see also United States v. Hahn, 849 F.2d 932, 935 (5th Cir.1988).   Furthermore, Karasek saw a box of ammunition sitting on the sports bag in the back seat.   Karasek conveyed this information to Trolinger.   Trolinger then searched the open sports bag and found a loaded handgun.   In the front of the passenger compartment, he found marijuana residue and three marijuana cigarette butts.   Under the totality of the circumstances, Officers Trolinger and Karasek had probable cause to believe that the car contained evidence of illegal drug trafficking, and thus had the right to search all of the car, including the locked trunk and engine compartment, and any container within it that could conceal the object of the search.   See United States v. Loucks, 806 F.2d 208 (10th Cir.1986).   Thus, we are forced to conclude that the district court erred as a matter of law in concluding that a warrant, in addition to probable cause, was necessary to enable Officers Trolinger and Karasek to search the engine compartment.

18
Regardless of the district court's error in finding that the search of the engine compartment violated the Fourth Amendment because the officers did not obtain a warrant, the issue of whether the Government is entitled to the relief it requests remains.   At the suppression hearing, the Government relied solely on the theory of a valid inventory search to justify the search under the hood of the car.   While the issue of probable cause was raised tangentially by the defense and the district court, it was not raised directly with respect to the search of the engine compartment, and it was certainly never advanced by the Government.5  We note, however, that this is not a typical waiver situation because the evidence regarding probable cause was fully developed at the hearing and the district court even made a finding that probable cause did exist.

19
Our general rule is that "issues raised for the first time on appeal 'are not reviewable by this court unless they involve purely legal questions and failure to consider them would result in manifest injustice.' "  United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.1990) (quoting Self v. Blackburn, 751 F.2d 789, 793 (5th Cir.1985)).   While we have not applied the plain error standard in the context of an argument that the Government failed to raise at a suppression hearing, at least one other circuit has.   See United States v. McNulty, 729 F.2d 1243, 1264, 1269 (10th Cir.1984) (on rehearing en banc).   We see no reason not to apply the plain-error standard in this context.

20
In the instant case, it is clear that what is involved is purely a legal question.   We are also convinced that the failure to consider it will result in manifest injustice.   The result of the district court's erroneous application of the law is the dismissal of charges against Kelly.   Moreover, where standing is held waived, this does not lead to suppression unless there has been a Fourth Amendment violation.6  Here, by contrast, the evidence and findings demonstrate that the officers' actions were constitutional.   Further, this is not a situation as in Garcia-Pillado where the Government's failure to raise the issue below resulted merely in a small reduction in the length of the defendants' sentence.   Instead, the result of the government's delinquency in the instant case is the dropping of all charges against Kelly.   Because it is apparent that the record is fully developed in this respect, that probable cause existed to search the engine compartment and that the district court entered findings to that effect, because the legality of the search is purely an issue of law, and because manifest injustice will result if we do not address this issue, we hold that the search under the hood was proper and the district court's order suppressing the cocaine found under the hood must be reversed.

Conclusion

21
Because the district court erred in holding that the search of the engine compartment was improper without a warrant, we reverse the district court's order granting Kelly's motion to suppress and remand for trial on the merits.

22
REVERSED and REMANDED.

1
 Trolinger testified that Kelly told him that "they" put marijuana in the bags.   Kelly testified that she told Trolinger that she used the bags to package parts to pagers she used in her business when she sent them to be repaired

2
 Kelly testified at McCaney's bench trial, and her testimony was introduced as an exhibit at her suppression hearing.   Her version of the events between the time the car was stopped and the search under the hood is different in some respects from that heretofore recited in the text.   However, given that the district court credited the testimony of the officers in determining there was probable cause to search the passenger compartment, we likewise credit the officers' testimony in establishing the facts relevant to that determination

3
 The district court's comments at the hearing on Kelly's pretrial motions are somewhat ambiguous:
"THE COURT:  ....
"The motion to suppress is granted.   Okay.
"I want to, I just--I want to make sure that everybody, that nobody misconstrues this really.   In my opinion, maybe the officers were a little bit too eager, but you did absolutely correct.   I'm not criticizing anything other than that inventory search.   That's the only thing I'm--I do not, in my own personal, my own mind, I think there was enough there to do a total search of the car.
"Had either, had number one, say a dog came around and sniffed around it and found, and smelled the thing.   Or, number two, a warrant was, in fact, gotten from a mag to, you know, to search every nook and cranny of that car.
"There was absolutely no evidence of cocaine, it seems to me, inside the passenger compartment or in the trunk.   Now, of course there was those zip, those bags, those bags.   And, see that to me, would have been more than sufficient to go to a mag and say, hey look, we got some stuff, we got some stuff that's suspicious, give me a, give me a search warrant, and we're going to go through that vehicle completely.
"And, that's the only thing I'm saying.   I am not saying that they're, I'm not saying anything else.   Okay."  Hearing on Motion to Suppress at 22-23 (emphasis added).

4
 The record reveals that at Kelly's suppression hearing, both the defense and the district court mentioned the issue of probable cause, although it was not addressed by the Government.   Defense counsel summarized the district court's ruling in McCaney's bench trial as follows:
"I think, the court properly ruled at the time that the search of the passenger compartment of the car was proper.   Once the officer found, in plain view, the box of ammunition, he had at that point, probable cause to go on and search the rest of the car, incident to the arrest of the defendants for unlawful possession.
....
"... I think the court properly ruled then that the gun found in the gym bag was not suppressed, but that the cocaine found under the hood was suppressed because the officers did not have probable cause to open the hood of the car without a warrant."   Hearing on Motion to Suppress at 20-21 (emphasis added).
The district court also alluded to the presence of probable cause:  "See that to me, would have been more than sufficient to go to a mag and say, hey look, we got some stuff, we got some stuff that's suspicious, give me a, give me a search warrant, and we're going to go through that vehicle completely."   Id. at 23.

5
 We recognize that there are cases in which federal courts have held that the Government's failure to raise the issue of probable cause at the suppression hearing precludes the Government from raising the issue on appeal.   See, e.g., United States v. Scales, 903 F.2d 765, 770 (10th Cir.1990);  United States v. Thompson, 710 F.2d 1500, 1503-04 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 730, 79 L.Ed.2d 190 (1984).   However, in these cases, not only did the Government not argue during the suppression hearing that probable cause existed, the Government conceded that probable cause did not exist.   See Scales, 903 F.2d at 770 ("Not only did the Government not make this argument below, ... it agreed with the court that the facts prior to the dog sniff gave rise only to a reasonable suspicion of criminal activity....  The district court made no findings to support a conclusion of probable cause prior to the drug dogs' alerting on the luggage.");  Thompson, 710 F.2d at 1504 ("The record of the suppression hearing reveals that government counsel not only failed to argue the existence of reasonable suspicion, but expressly conceded the issue.").   We have not found any cases holding that the Government is barred from raising the issue of probable cause on appeal where, as here, the evidence regarding probable cause has been fully developed and the district court made findings at the suppression hearing that probable cause existed

6
 See, e.g., United States v. Maestas, 941 F.2d 273, 276 n. 2 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 909, 116 L.Ed.2d 809 (1992)


9 Mich. App. 44 (1967)
155 N.W.2d 691
PEOPLE
v.
RUSSELL.
Docket No. 2,542.
Michigan Court of Appeals.
Decided December 5, 1967.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, *45 Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Robert Weinbaum, for defendant.
BURNS, J.
Defendant was convicted by a jury of the offenses of sale[1] and possession[2] of narcotics.
At trial the chief witness for the prosecution, who allegedly purchased the narcotics from the defendant, did not appear and the trial judge allowed the prosecutor to read the witness' preliminary examination testimony to the jury. The defendant was not represented by counsel at the preliminary examination and the record does not indicate that he waived counsel. The defendant did not cross-examine the witness, nor was he asked by the court if he desired to cross-examine the witness. Counsel was appointed to represent the defendant at the trial of the cause. The jury returned a verdict of guilty on both counts, which verdict was supported by other competent evidence. However, the judge set aside the guilty verdict as to the sale of narcotics and sentenced the defendant for the unlawful possession of narcotics.
The defendant claims on appeal that the trial court erred by allowing the prosecutor to read the preliminary examination testimony to the jury, that such evidence violated the Sixth Amendment of the United States Constitution:
"In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * * and to have the assistance of counsel for his defense."
*46 In fairness to the trial judge it should be noted that this case was tried prior to the decision of the United States Supreme Court in Pointer v. Texas (1965), 330 US 400 (85 S Ct 1065, 13 L ed 2d 923). In that case the examining trial was for a determination of probable cause, which is similar to the purpose of a preliminary examination in Michigan. Defendant was not represented by counsel and did not cross-examine a witness at the examining trial, who later was unavailable at the trial. The trial court allowed the examining trial testimony of the unavailable witness to be read in evidence. The United States Supreme Court held that the use of such testimony was a denial of the defendant's constitutional right of confrontation.
In the present case the defendant, not having counsel at the examination, was denied an adequate opportunity to cross-examine the witness, and the introduction of the transcript in evidence amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment of the Constitution of the United States, as made applicable to the States by the Fourteenth Amendment. The present case is controlled by the Pointer Case, supra.
Reversed and remanded for a new trial.
HOLBROOK, P.J., and McGREGOR, J., concurred.
NOTES
[1]  CLS 1961, § 335.152 (Stat Ann 1957 Rev § 18.1122).
[2]  CLS 1961, § 335.153 (Stat Ann 1957 Rev § 18.1123).


Matter of Tyler D. (2018 NY Slip Op 07427)

Matter of Tyler D.

2018 NY Slip Op 07427

Decided on November 7, 2018

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 7, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.

2017-03609
 (Docket No. S-835-15)

[*1]In the Matter of Tyler D. (Anonymous), appellant.

William E. Horwitz, Ardsley-on-Hudson, NY, for appellant.
Jennifer S. Bumgarner, County Attorney, Carmel, NY (Gloria R. Tressler of counsel), for respondent.

DECISION & ORDER
In a proceeding pursuant to Family Court Act article 7, Tyler D. appeals from an amended order of fact-finding and disposition of the Family Court, Putnam County (James F. Reitz, J.), dated March 17, 2017. The amended order, after a fact-finding and dispositional hearing, restored the matter to the calendar, vacated a prior order of adjournment in contemplation of dismissal of the same court dated December 5, 2016, adjudged the appellant to be a person in need of supervision, and directed that he be placed in the custody of the Putnam County Commissioner of Social Services for a period of up to 12 months.
ORDERED that the amended order of fact-finding and disposition dated March 17, 2017, is reversed, on the law, without costs or disbursements, the prior order of adjournment in contemplation of dismissal dated December 5, 2016, is reinstated, and the matter is remitted to the Family Court, Putnam County, for further proceedings.
In September 2015, the assistant principal of the appellant's high school filed a petition pursuant to Family Court Act article 7 seeking to have the appellant adjudicated a person in need of supervision (hereinafter the PINS petition) on the grounds that, among other things, the appellant was persistently truant from school. Thereafter, the appellant, represented by counsel, admitted to truancy and consented to the entry of an order by the Family Court adjourning the matter in contemplation of dismissal (hereinafter the ACD order). After two extensions of the ACD order, the Putnam County Probation Department filed an application to restore the matter to the calendar, alleging that the appellant violated the terms of the ACD order by failing to regularly attend school.
On March 1, 2017, after several other appearances and receipt of a forensic report, the Family Court held a fact-finding and dispositional hearing and heard testimony from three witnesses regarding the appellant's failure to regularly attend school. In the March 17, 2017, order appealed from, the court, having determined that the appellant violated the terms of the ACD order, restored the matter to the calendar, vacated the ACD order, adjudged the appellant to be a person in need of supervision, and directed that he be placed in the custody of the Putnam County Commissioner of Social Services for a period of up to 12 months.
Although the appellant's term of custody has expired by the terms of the order appealed from, the order is not academic in light of the enduring consequences which might flow [*2]from the finding that the appellant violated the terms of the ACD order (see generally Matter of Gabriela A., 23 NY3d 155, 161 n 2; Matter of Bickwid v Deutsch, 87 NY2d 862, 863; Matter of Corey WW., 93 AD3d 1130, 1131).
Family Court Act § 741(a) provides, in relevant part: "[a]t the initial appearance of a respondent in a proceeding and at the commencement of any hearing under this article, the respondent and his or her parent or other person legally responsible for his or her care shall be advised of the respondent's right to remain silent" (emphasis added). The failure to apprise a respondent of the right to remain silent constitutes reversible error, even if the respondent consents to the disposition in the presence of counsel (see Matter of Nicole A., 300 AD2d 947, 948; Matter of Jodi VV., 295 AD2d 659, 659: see also Matter of Aaron UU., 125 AD3d 1155, 1156) or fails to seek to withdraw his or her admissions based on the failure (see Matter of Corey WW., 93 AD3d at 1131).
Here, the Family Court never apprised the appellant of his right to remain silent—not at the initial appearance on the PINS petition, nor prior to accepting his admission to the allegations in the petition and entering the ACD order, nor at the fact-finding and dispositional hearing on March 1, 2017, addressing the alleged violation of the ACD order. The court's failure to advise the appellant of his right to remain silent cannot be considered harmless error (see Matter of Mark J., 259 AD2d 40, 42-43), as the court never advised the appellant of his right to remain silent at any time during the course of this proceeding or the original PINS proceeding. Thus, the order must be reversed (see Matter of Daniel XX., 149 AD3d 1231, 1232; Matter of Jodi VV., 295 AD2d 659, 660; see also Matter of Chad M., 208 AD2d 541).
In light of our determination, we need not reach the appellant's remaining contention.
MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court