Saturday, May 31, 2008

Employee Pension & Indian Bank

SYNOPSIS AND BRIEF NOTES:

BRIEF FACTS:

Mr. Tom retired in 1989, after completion of tenure of 21 years of service. The retirement is by way of resignation. The resignation was accepted by bank. At the time of resignation he was given terminal benefits such as gratuity, P.F. On demand of the pension benefits, Mr. Tom was denied the same by the bank – IOB in year 1995 and thereafter in year 2000.

SHORT QUESTION:

Is Mr. Tom eligible for obtaining benefits under the Pension Scheme?

BRIEF ANSWER:

Yes, Mr. Tom should be eligible for the Pension Scheme since he satisfies the requirements of Regulation 29 vis-à-vis Regulation 50. There is no legitimate rationale of distinguishing between two set of employees; first, who resigned between November 1993 to September 1995 second, who resigned between January 1986 to October 1993.

RELEVANT DOCUMENTS AND LAW:

PAD Letter no. 1645, dtd. 04/06/1994.
Letter Ref. 7(F) 124 dtd. 06/03/95.

Regulation 10 of Draft Pension Regulation, 1993
Regulation 22 of IOB (Employees’) Pension Regulation, 1995 (Impugned)
Pension Regulation no. 52(1) of Pension Regulation, 1995
Pension Regulation no. 3(c)
IOB Employees Discipline & Appeal Regulation 1976
IOB (Officers) Service Regulation 1979
Section 2(s) of UP Industrial Disputes Act, 1947
Regulation 31- Pension Regulation 1955
Section 10(10AA) – Income Tax.





Citations referred in petition:

U.Com Bank V/s. S. Sanwarlal (RSA No. 1389/1997)
Income Tax V/s. RT Shahney (dtd. 10/12/1984)
JK Cotton Spinning & Weaving Mills V/s. State of UP (AIR 1990 SC 1808)
Commissioner of Income Tax V/s. DP Malhotra (28/07/1997)
CIT V/s. RJ Shahney (1986) 159 ITR 160
Cecil Dennis Solomon V/s. RBI (WP No. 615/1996)
Dattatreya Shriniwas Buche V/s. RBI (WP No. 2586/1997)


DISCUSSION:


The Constitution of India and the law of the land does not permit irrational discrimination not based on “intelligible differentiation” & “rational consideration”. If the management of the bank is found to have exercised discriminatory practices de hors the provisions of the Constitution of India, there are fair chances for the court to turn in down.

In this case the employer bank resorted to discriminatory practice by allowing pension benefits to those who retired between 1993-1995 and disallowing benefits to those retiring between 1986-1993. The Indian Bank Association (IBA) took permission from the government to pay pension benefits to those who retired between 1993-1995. Such a cut of date has been struck down by the Bombay and Karnataka High Court in case of voluntary retired employees.

Our arguments in brief:

1. Regulation no. 22 seeks to put “resignation” at par with dismissal, removal or termination. This is an unnatural classification and hence should be done away with. Employees who are dismissed or removed can avail benefits of Compassionate Allowance under Regulation no. 31. Manifestly this shows that two classes of employees are distinct and cannot be put on a single platform.

2. Resignation entails avail of terminal benefits such as gratuity & PF. Extrapolating this “Pension” should not be left out.

3. “Voluntary Retirement” and “Resignation” are one and the same. Both should satisfy a “condition precedent” of employer acceptance and a three month notice criteria (Cited: JK Cotton and Spinning Mills’ Judgment).

4. Pension Regulation No. 32 and 33 allow pension benefits in cases of “Premature retirement in Public Interest by Bank’s Order” and “Compulsory retirement”. Punishable cases are given benefits however “clear records” suffer.
This shows discrimination.

5. Punjab and Haryana High Court held “Regulation no.22” argument as ingenious (U Com V/s. S Sanwarlal)

6. Pension was a second re-tiral benefit scheme in lieu of Contributory Provident Fund and hence must be provided.

7. According to Madras High Court in CIT V/s. RT Shahney, retirement may be of various types either on superannuation or resignation. In both cases Section 10(10AA) of IT Act would apply. This view was repeated by Bombay High Court in Re. CIT V/s. DP Malhora.

8. Nagpur Bench of Bombay High Court in Re. Cecil Dennis Solomon V/s. RBI and Dattatreya Shriniwas Buche V/s. RBI took a view that the “Regulations” were not retrospective in nature, if there was nothing in them to show as such. Consequently the pension benefits could not be denied based on Regulation 22 that did not have retrospective effect.

Judgment Summary and applicability

Cases similar came up before various courts of the land. Their ratio and applicability to Mr. Tom’s Case is elucidated briefly hereunder:

1. Canara Bank & others V. ----- (Karnataka High Court)

Canara Bank introduced a Voluntary retirement scheme. IBA asked employees retiring between 1986-1993 to apply for membership of the pension scheme. In terms of Pension Regulation 1995 “retirement” included “premature retirement...before attaining age of superannuation” & included service tenure of 10 years. The court noticed that commutation figures and monthly outlay in case the pension was given was not huge. The definition of “Voluntary Retirement” did not specifically exclude “retirees”. The agreement reached on 29/10/93 between IBA and All Indian Bank Employee Association included retirees between 1986-1993. No circumstances arose that changed the circumstances or conditions in the statutory settlement arrived between parties.

The court noted that: taking into consideration “Principles of Interpretation” and “Rule of Constructions”, if an impugned action is capable of two interpretations, one that infringes fundamental rights and another that does not infringe fundamental rights, it would be necessary to interpret the action the later way.

Taking this principle into consideration, the court held Canara Bank’s action of not including the retirees between 1986-1993 to pension scheme as violating Fundamental Rights.

Pension according to court was granted in lieu of long service rendered by an employee and considered as deferred portion of compensation for past service. It wasn’t a charity that could be deferred at sweet-will.

The court also observed that there was nothing to show that the fund set up under Regulation 5 was meant only for employees retiring after 1993 and that regulation 3 specifically stated that they were applicable to employees who retired between 1986-1993.

Referring to Supreme Court in Re. Nakara and in Re. Krishna, the court pointed that a practice of drawing artificial lines of classification based on cut off dates should be desisted. “Classification amongst employees retired and those who sought voluntary retirement was not permissible”, observed the court.

Since our employer bank – IOB is a part of IBA and we a part of employees union, what transpired above applies to us. Moreover IOB appears to be party to this matter since the appellants have provided the data concerning IOB.


2. Srinath V. Syndicate Bank.

In terms of Clause 17(a) of the V Bipartite Settlement the appellate was “deemed to have voluntary retired” on account of her long and unexplained absence. The pension benefits were denied. A writ petition was filed. Court held that she was eligible for pension benefits under regulation. The bank however rejected the request once again. Matter was taken up to the single judge who ruled in favor of bank while the division bench allowed the LP quashing the order of Single judge.

In doing so, the court opined that the labor and welfare legislations have to be construed broadly and liberally. The concern should be more on content and the context rather than literal import. Directive policies enshrined in Part IV of the Constitution should be borne in mind. Benefits of welfare legislations should not be defeated on subtle devices.

The court opined that there was nothing “Voluntary” in the retirement since the explanation of appellant was rejected and time asked was refused. The management Order cannot be treated as “resignation”. “Resignation” is out of free will and emanates from employee and not from the employer.

While recognizing the distinction and reflecting the lack of “voluntary” element in the instance case, the court proceeded to stress on the importance of the minimum qualifying service criteria. The court said that if the employee resigned however he has put in the minimum qualifying service in such a case he would be eligible for the pension benefits although he “resigned”.

Referring to National Textile Workers Union V/s. PR Ramakrishnan, a judgment of Supreme Court, the Karnataka High Court observed that if the statute does not expressly confer a right to the workmen but does not indicate any negative intendment either, the statute must be construed in favor of workmen. The Pension Regulation entitles “retired employees” to receive pension. In such a case the construction should be liberal and “retired employees” should include those who retired by way of resigning particularly looking to Clause 2(y) of the regulation wherein “Retirement” includes “premature retirement” before attaining the age of superannuation. It is pertinent to note that “Voluntary Retirement” and “Premature retirement” – both these categories have been included in the definition.

The court further stated – “in deciding the entitlement of an employee for pension and other pensionary benefits, the court should necessarily bear in mind the well settled position in law that where an employee put in more than minimum qualifying service for pension under the erlevant regulations or the rules, enven in case of resignation after putting in the qualifying service, the employee would be entitled to pension..”.

Factually the above matter appears to be little different from ours as in this case the employee had “deemed to have retired” on account of management order. Our case is different because we retired by “resignation” and not by management order. However, since the court has used a language of wide amplitude by using the word “resign”, we are benefited by the judgment since the tenure of service is something important according to the court and should not be overlooked. That is same as what we are saying.


3. Syndicate Bank V. Srinath

This judgment emanates from the appeal filed by the Syndicate Bank against the aforesaid decision of the division bench of the Karnataka High Court. The Supreme Court too ruled in favor of the respondent (petitioner before the Karnataka High Court).

However, in taking the view, the Supreme Court has judged the issue by drawing distinction between “forced retirement” and “voluntary retirement”. This distinction is not relevant for our purpose.

While taking the above view, in last paragraph the Supreme Court, while referring to Sanwar Mal’s Case (2004-4-SCC-412) draws distinction between “resignation” and “retirement”. While doing so it points out that “resignation” and “voluntary retirement” are connotations of deliberate abandonment of service and on the other hand “retirement” occurs only on superannuation. After drawing this distinction the Supreme Court states – “..in any case, we are of the opinion that she could not be denied the benefit of her 20 years of service when she comes within the pension scheme that she was employed prior to 1986 and retired before 29.9.95.”

On going through the above discussion, to some extent we can say that the court indicated that both “voluntary retirement” and “resignation” are single specie. While considering the question of providing pension, a long tenure of 20 years of service is a cogent criterion in determining the eligibility of an employee for a pension scheme. The obiter to this extent in the judgment could prove useful.


4. Ramachandra & Ors. V. Canara Bank.

The petitioner voluntarily retired under the VRS. The pension regulations later came into force. Regulation 19(1) permitted an employee to exercise option of early retirement and that could not preclude him on account of such an early retirement. On account of this both “voluntary retirement” and “retirement on superannuation” shared same platform. The respondent bank denied pension benefits taking a plea that the petitioner had retired prior to 1993. This stand of the respondent bank was challenged.

The Court considered the provisions of Section 2(y) of the regulations and pointed out that there could be no distinction between “voluntary retirement” and those retired otherwise. The court said it was open to it to give construction to achieve the objects of regulation. The Karnataka High Court in this case appears to have taken a similar view adopted in succeeding case decided a year later and narrated hereinabove at Point 1.


5. Cecil V. RBI


On perusing this judgment, it appears that some arguments taken in our petition have been adopted from this judgment. The court’s opinion is very much akin to our arguments or rather our arguments have been crafted on the court’s opinion that favors our stand and arguments.

Without deciding the vires of Regulation 26 (3A) to the Staff Regulation, the Nagpur Bench of Bombay High Court has taken a view that:

a. Regulations were not retrospective and hence not applicable to those who resigned prior to 1990 (applicable date in that case)
b. The provision of “voluntary retirement” did not exist when the petitioner were in service [they had no option but to resign]
c. “Resignation is not equivalent to dismissal or termination both of which are the acts of management, but conversely resignation is more akin to voluntary retirement” observed the court.


6. RBI V. Cecil [Contra]

SLP was filed against the aforesaid judgment of Nagpur Bench of Karnataka High Court. The Supreme Court ruled in favor of RBI and held that “resignation” and “voluntary retirement” were different in service jurisprudence and followed different consequences. According to Supreme Court, VRS is created by regulation and “resignation” is an implied term in the employer-employee relationship.

It is pertinent to note that all the respondents who claimed pension did not attain the age of 50 during resignation. In our case they did. This judgment came in light of interpretation of Regulation 26 that did not contemplate resignation. Regulation 26 whilst Regulation 2(y) are materially different as such Regulation 2(y) takes into consideration “resignation” as an included category. This way we are different from the case into contemplation.

In this case the regulations denied retirement benefits to those resigned. In our case retirement benefits were given. In this case stipulated service tenure was not met. In our case it was met. In this case notice was not mandated. In our case notice is mandated and given. There is a material difference in the Regulation which governed the view of the court in this case and the Regulations in our case that passed through the litmus test of the Supreme Court in Karnataka High Court cases.

The view of Supreme Court no doubt favors the employer banks. However, this judgment can be distinguished on facts and law as hereinabove.


7. BOI V. Narendra Dave [Contra]

This judgment takes a view taken by Supreme Court in Re. Cecil (Supra). It adds that Regulation 22 is not ultra vires and the view taken in this decision is primarily by drawing distinctions between “retirement” and “resignation”. What the court contemplates is that anybody can resign anytime – even on the second day of service but retirement is on completion of “qualifying service”. The court acknowledges the difference that large number of years of service makes. It also points out that an argument about completion of minimum years of service is meritorious.

Looking to the fabric of the judgment it appears that various citations of the Supreme Court cited hereinabove were not negated by the court expressly, although mentioned in petition. No mention about these citations finds place in the judgment. The line of argument is single-channeled in that it only says that Regulation 22 is ultra-vires. Our line of argument is manifold and includes contrary view of the Supreme Court in various other prior cases. There are various similarities in the case of the respondent in this case and us. If the Supreme Court wanted the mater to turn water-tight, it could have dealt with each and every line of contention and ruled them out along with earlier views expressed by the Karnataka High Court. This is what the Court has not done. To this extent the doors of re-entry are open.
-------------------------------------------------------------------------------

VARILEASE V. U.S.

United States Court of Appeals for the Federal Circuit

01-5114

VARILEASE TECHNOLOGY GROUP, INC.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.
________________________

DECIDED: May 7, 2002
________________________

Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and CLEVENGER, Circuit Judge.

LOURIE, Circuit Judge.

Varilease Technology Group, Inc. appeals from the decision of the United States Court of Federal Claims granting summary judgment in favor of the United States in Varilease�s suit for breach of contract. Varilease Tech. Group, Inc. v. United States, No. 00-614C, slip op. at c (Fed. Cl. June 7, 2001). Because the court did not err in concluding that the United States did not breach its contract with Varilease, we affirm.

BACKGROUND

March 1998, Varilease and the United States entered into a contract whereby Varilease was to provide maintenance for certain Unisys computers owned by the Defense Information Systems Agency ("DISA"). Id. at c. Its history was as follows: In late 1997, before the award of the contract, DISA had published in the Commerce Business Daily three notices indicating an intention to solicit competitive proposals, one of which would be accepted, following which the proposer would be awarded the contract. Id. at f. The published notices specifically stated that the contract would be an indefinite delivery, indefinite quantity ("ID/IQ") contract. Id. DISA issued a later Request for Proposals ("RFP") that also stated that the contract would be an ID/IQ contract, id. at g, covering Unisys computers owned by DISA, id. at f. Attached to the RFP was a table listing DISA�s Unisys computer equipment, including those items that DISA presently owned and those that DISA leased (under a lease-to-own arrangement) from Unisys. Also attached was a disclaimer stating that tabulated quantities were "estimated" and noting that they were "for informational and evaluation purposes only." The RFP also stated that "[t]here is no guarantee that the quantities will not change." Id. at i. It further indicated that the government would be allowed to discontinue maintenance orders:
The Government may discontinue delivery order coverage provided under a current Delivery Order at anytime prior to the expiration of the delivery order by providing the Contractor with thirty (30) days advanced written notice. . . .
Id. at k.

After receipt and evaluation of the proposals that were submitted, DISA awarded contract number DCA200-98-D-0024 to Varilease for maintenance of the agency-owned Unisys computers. The awarded contract expressly set forth its type, term, minimum, and maximum:

This is an indefinite-delivery, indefinite-quantity (ID/IQ) contract utilizing Firm-Fixed-Price delivery/task Orders in accordance with FAR 16.500. Total orders placed against this contract shall not exceed $50,000,000.00 over a five year period (6-month base period, four 12-month and one 6-month option periods). The guaranteed minimum is $100,000 for the basic period only. There is no guaranteed minimum for the option periods, if exercised.

During the initial term, DISA placed several delivery orders valued in toto at approximately three million dollars. Id. at o. As of January 2001, DISA had ordered from Varilease over ten million dollars worth of computer maintenance under the contract. Id. at q.

Varilease apparently had hoped that DISA would order from Varilease its entire requirements for maintenance of the agency-owned Unisys computers, including those computers leased from Unisys when DISA obtained ownership of them. However, in September 1998, DISA began replacing some of its Unisys computers, and DISA accordingly either cancelled outstanding service orders pursuant to the thirty-day discontinuance clause or stopped placing new maintenance orders. Disappointed by the lost business, Varilease filed a complaint with the Department of Defense Inspector General ("DOD/IG"), which conducted an investigation to determine whether DISA had misled Varilease before awarding the contract. Id. at p. The DOD/IG concluded that DISA had not misled Varilease during formation of the contract and that DISA�s computer replacement plan was not in fact approved until after the award of the contract. Id. at p-q n.41. No "improprieties" were found. Id. at p. Finally, the DOD/IG characterized the contract as an ID/IQ contract. Id. Varilease then complained to the contracting officer that DISA had breached the contract, but the contracting officer disagreed and denied Varilease�s claim for breach. Id. at q.
Varilease brought suit in the Court of Federal Claims, contending that the contract was a requirements contract, rather than an ID/IQ contract, and that DISA had breached the contract by failing to provide accurate estimates of its requirements. Id. at x. The government disagreed, responding that the contract was an ID/IQ contract, which DISA had not breached because DISA had ordered more than the minimum amount specified by the contract. On a motion for summary judgment, the court analyzed the provisions of the contract, as well as the circumstances surrounding its formation, and concluded that the contract was indeed an ID/IQ contract, not a requirements contract. Id. at ee. The court accordingly granted summary judgment in favor of the United States. Varilease appeals from the judgment of the court. We have jurisdiction pursuant to 28 U.S.C. � 1295(a)(3).

DISCUSSION

We review summary judgment determinations of the Court of Federal Claims de novo. Alves v. United States, 133 F.3d 1454, 1456 (Fed. Cir. 1998). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Contract interpretation is a question of law generally amenable to summary judgment. Textron Def. Sys. v. Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998).

On appeal, Varilease makes two principal arguments. First, it argues that the government�s actions led it to reasonably believe that the contract was intended to cover all of DISA�s requirements. Second, it argues that, although the contract was an enforceable ID/IQ contract during the initial six-month base period, each option under the contract should be construed as creating a separate contract, and because each alleged separate option contract lacks a stated minimum order quantity (and hence consideration from the government), each option exercise must be found to create a requirements contract.

The government responds that the plain language of the contract shows that it is an ID/IQ contract. The government also contends that, rather than creating a separate and distinct contract, each option period is part of a unitary ID/IQ contract for its full term, including any option periods, if exercised. Finally, the government contends that because DISA exceeded the minimum order obligation set forth in the contract, there was no breach.

We agree with the government that the contract is plainly an ID/IQ contract, and that Varilease could not have reasonably believed otherwise. Moreover, the intention of a party entering into a contract is determined by an objective reading of the language of the contract, not by that party�s statements in subsequent litigation. Varilease argues that its understanding concerning the amount of maintenance it would perform if awarded the contract was based on an inventory listing of computers provided with the RFP. Whatever Varilease now asserts was its expectation, the plain language of the contract belies that expectation. The contract was an ID/IQ contract with only a minimum purchase obligation.

An ID/IQ contract differs from a requirements contract in that the former does not oblige the buyer to purchase more from the seller than a stated minimum quantity, whereas the latter obliges the buyer to buy from the seller all of its requirements of the relevant goods or services. Travel Centre v. Barram, 236 F.3d 1316, 1318-19 (Fed. Cir. 2001). As the Court of Federal Claims correctly noted, the plain language of the contract clearly, repeatedly, and unequivocally identifies it as an ID/IQ contract rather than a requirements contract. A requirements contract must provide that the buyer will purchase all of its requirements from the seller. Id.; 48 C.F.R. � 16.503(a). Nowhere in the contract is there language, express or implied, obligating the government to purchase its entire requirements for maintenance of agency-owned Unisys computers. On the other hand, in addition to expressly stating that it is an ID/IQ contract, the language of the contract clearly sets forth the essentials of an ID/IQ contract, viz., an obligation on the part of the government to order at least a minimum quantity of computer maintenance and an obligation on the part of the contractor to supply all of the maintenance that the government orders up to a maximum quantity. See Travel Centre, 236 F.3d at 1318-19. Given the clear nature of the type of contract involved, Varilease had no reasonable basis for believing that the government would order all of its requirements for relevant computer maintenance from Varilease. Rather, Varilease could have reasonably believed only that the government would purchase the minimum quantity specified in the contract.

We are also unpersuaded by Varilease�s argument that the contract must be interpreted such that the option periods constitute a series of separate and distinct requirements contracts. We discern no basis in either the relevant regulations or case law for treating option periods of an ID/IQ contract as separate contracts.

The Federal Acquisition Regulations ("FAR") authorize the government to utilize an ID/IQ contract "when the Government cannot predetermine, above a specified minimum, the precise quantities of supplies or services that the Government will require." 48 C.F.R. � 16.504(b) (sometimes cited as FAR 16.504(b)). The FAR requires that an ID/IQ contract state minimum and maximum quantities to be ordered by the government; it also permits the contract to include option periods:

A solicitation and contract for an indefinite quantity must �

(i) Specify the period of the contract, including the number of options and the period for which the Government may extend the contract under each option;

(ii) Specify the total minimum and maximum quantity of supplies or services the Government will acquire under the contract; . . .
48 C.F.R. � 16.504(4)(i)-(ii); see also 48 C.F.R. � 17.202(b)(2) (permitting ID/IQ contracts with options). Minimum quantities are not required to be associated with each option period. On the contrary, according to subsection (ii), the "minimum . . . quantity . . . under the contract" must be specified; according to subsection (i), any option periods are part of the contract itself. The regulation refers to "extend[ing] the contract," indicating that any option periods chosen are part of the original and only contract. The contract in this case is consistent with these regulations, referring to "this . . . contract" in the singular, with parenthetical reference to option periods. We therefore conclude that Varilease�s interpretation of the contract is not supported by the relevant regulatory or contractual language.

While not binding on us, the Armed Services Board of Contract Appeals has reached the same conclusion that an option period in an ID/IQ contract does not require a separate minimum quantity. In In re Five Star Elec., Inc., No. 44984, 1996 ASBCA LEXIS 135 (July 10, 1996), the Board granted summary judgment in favor of the government, rejecting the same argument Varilease now makes:

We also see no basis for appellant�s contention that, "by exercising the options, the Air Force became obligated to order at least a minimum amount of work during the option period." The only minimum quantity requirement specified in the contract is that [covering the initial period of the contract]; there are no minimum quantities specified for any of the option periods. This consideration differentiates the cases that appellant relies upon, where there were minimum requirements for the option periods.

Id. at *9-10. We agree with the Board�s analysis.

Varilease�s reliance on Dynamics Corp. of America v. United States, 389 F.2d 424 (Ct. Cl. 1968), and Crown Laundry & Dry Cleaners, Inc. v. United States, 29 Fed. Cl. 506 (1993), is also misplaced. Varilease cites Dynamics, apparently to support its contention that each exercised option term of the contract is a separate contract, and cites Crown Laundry as holding that a separate contract without a minimum must be a requirements contract. However, Dynamics does not hold that an exercised option in an ID/IQ contract becomes a requirements contract. Dynamics involved an ID/IQ contract, which the court characterized as an option contract in the sense that the government possessed an option to place orders with the contractor under the ID/IQ contract. 389 F.2d at 430-31. Such an order was stated to "consummate" a separate contract for the ordered goods. Id. at 431. However, the fact that an order pursuant to an option clause in an ID/IQ contract may lead to a separate supply contract for that order does not mean that a requirements contract is created in contradiction to the basic nature of what is clearly one ID/IQ contract.

Moreover, the Crown Laundry case is not binding on us, as it is a decision of the Court of Federal Claims. In any event, the facts of that case are distinguishable from those in the present case; the court held that the contract in that case was a requirements contract because there was no minimum quantity provision in that contract, 29 Fed. Cl. at 517, whereas the Varilease-DISA contract contains a minimum quantity provision. We thus reach the same conclusion as did the Court of Federal Claims � that the present contract is an ID/IQ contract, and DISA�s only obligation was to order at least the minimum quantity of relevant computer maintenance during the initial six-month term of the contract. Indisputably, DISA met that
obligation.

CONCLUSION

The court did not err in granting summary judgment that the government did not breach its contract with Varilease; we therefore

AFFIRM.

BECK v LAZARD FRERES

U.S. 11th Circuit Court of Appeals


BECK v LAZARD FRERES

Jeffrey H. BECK, as Trustee of the Chapter 7 Estate of Southeast Banking

Corporation, Plaintiff-Appellant,

v.

LAZARD FRERES & CO., LLC, Defendant-Appellee.

No. 97-5485.

United States Court of Appeals,
Eleventh Circuit.
May 13, 1999.

Appeal from the United States District Court for the Southern District of Florida. (No. 96-2653-CV-EBD), Edward B. Davis, Judge.

Before HATCHETT, Chief Judge, and RONEY and FAY, Senior Circuit Judges.

PER CURIAM:

This is one of a series of cases in which the trustee for the bankrupt Southeast
Banking Corporation has attempted to recover assets from the bank's former officers and directors, several accounting firms and a law firm. Plaintiff Jeffrey H. Beck, as trustee of Southeast Banking Corporation, sought to recover damages against the defendant investment firm of Lazard Freres & Co. for advice it gave concerning Southeast's acquisition of First Federal Savings and Loan Association of Jacksonville. The trustee alleged the defendant breached its contractual obligation to Southeast in a letter giving its unqualified endorsement to the acquisition of First Federal Savings and Loan, which letter the directors relied upon in making the acquisition which turned out to be fatal to Southeast. The trustee alleged in detail that Lazard failed to honor its duty of care and good faith and failed to adhere to its duty to perform its services with reasonable care and industry standards. The district court dismissed the complaint as being barred by section 95.11(2)(b), Florida Statutes, the five-year breach of contract statute of limitations. We affirm.

Lazard Freres completed its contractual obligation and issued its assessment of the First Federal acquisition on September 15, 1988. Southeast's Board of Directors approved the purchase, and the acquisition was completed on December 30, 1988. This action for breach of contract was not filed until over eight years later on December 18, 1996. Thus, the suit is barred by the five-year statute of limitations, section 95.11(2)(b), unless the last fact necessary to the cause of action has occurred within five years preceding the date the suit was filed, or the statute is tolled from some reason.

The limitations period begins to run when "the last element constituting the cause of action occurs." § 95.031(1), Fla. Stat. (1997). The elements of a breach of contract action are (1) a valid contract; (2) a material breach; and (3) damages. See Abruzzo v. Haller, 603 So.2d 1338,1340 (Fla. 1st DCA 1992).

The trustee made several arguments in the district court based on the view that the
Florida statute does not begin to run until the party "discovered the breach." He argued that the date that Southeast filed for bankruptcy was the first date that Southeast could have discovered the breach and sought recourse for it. The district court properly held that the filing of a bankruptcy petition is not a necessary element of a breach of contract claim.

Admitting that under the general rules of agency the knowledge of the former officers and directors would be imputed to Southeast, the trustee argued two exceptions: (1) adverse interest, and (2) adverse domination. The contention was that Southeast could not have "discovered" the alleged breach until its adverse officers and directors who dominated the affairs of Southeast were removed.
The district court, following the argument that the statute did not begin to run until the breach of contract was discovered, nevertheless determined that the adverse interest and adverse domination theories would not toll the statute in this case. The reasons relied upon are adequately addressed in the district court's opinion.

A case from the Supreme Court of Florida, decided after the district court's decision in this case, makes it unnecessary to consider these alleged exceptions to the discovery rule, argued on this appeal. The Florida Supreme Court held that there is no discovery rule in section 95.11(2)(b) and that actions for breach of contract are barred five years after the cause of action accrued regardless of whether the plaintiff knew that it had a claim:

Using the principle of statutory construction expressio unius est exclusio alterius, we conclude that the absence of such express language in section 95.11(2)(b), Florida Statutes(1981), is clear evidence that the legislature did not intend to provide a discovery rule in section 95.11(2)(b), Florida Statutes (1981). To conclude otherwise would require us to write into section 95.11(2)(b), Florida Statutes (1981), a discovery rule when the Legislature has not.
Federal Ins. Co. v. Southwest Florida Retirement Center, Inc., 707 So.2d 1119, 1122 (Fla.1998).

It is clear that all of the actions of the defendant which constitute a breach of contract occurred when the offending letter was delivered, and that the element of damage occurred when Southeast's Board of Directors approved the purchase of First Federal and the acquisition was completed on December 30, 1988. Since the limitations period began to run, whether or not the breach had been discovered, the trustee's claim for breach of contract is barred by the statute of limitations.

AFFIRMED.

AKSOY v APOLLO SHIP

U.S. 11th Circuit Court of Appeals

AKSOY v APOLLO SHIP

United States Court of Appeals,
Eleventh Circuit.
No. 96-5158.
Huseyin AKSOY, Plaintiff-Appellant,
v.
APOLLO SHIP CHANDLERS, INC., Ocean Ship Services Limited, Defendants-

Appellees.
March 27, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-632-CV-MM), K. Michael Moore, Judge.

Before COX and CARNES, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:

Huseyin Aksoy ("Aksoy") appeals the district court's grant of summary judgment in favor of Apollo Ship Chandlers, Inc. and Ocean Ship services, Ltd. ("Apollo"). We vacate and remand.
I.
BACKGROUND

Aksoy is a seaman and was employed by Apollo as an assistant wine steward aboard one of its vessels. Aksoy signed an employment contract with Apollo, which provided in pertinent part:

As a "Tipping Employee" the Employer guarantees you a total monthly income inclusive of gratuities of $ 503 (as per contract wages, $ 155 which include basic wages, ... gratuities guarantee $ 348 ), while the vessel is sailing with passengers.
(R.1-73-Ex. A).

Aksoy claims that as a wine steward, he actually received tips amounting to approximately $ 300 a week. Aksoy became ill during his employment and was unable to work. Apollo paid Aksoy $251.50 to cover unearned wages from February 16, 1995 through February 28, 1995; this amount included $ 174 for guaranteed minimum tips.

Aksoy subsequently commenced a class action against Apollo seeking maintenance and cure on behalf of all similarly situated tip-earning seamen who became ill or injured on the job and did not receive reasonably anticipated tips or, alternatively, monthly guaranteed tips as part of their unearned sick wages. Aksoy does not dispute that Apollo paid him fixed wages plus an amount equal to the minimum tips guaranteed by his contract. Rather, Aksoy contends that Apollo should have paid him his estimated actual earnings as unearned wages, citing this court's decision in Flores v. Carnival Cruise Lines, 47 F.3d 1120 (11th Cir.1995), in support of his argument. Apollo contends that because Aksoy received the amounts set out in his contract, Aksoy was paid all the tips to which he was entitled, asserting that Flores does not command a different result.

The district court, without certifying a class, granted summary judgment in favor of Apollo. The district court reasoned that this court's holding in Flores does not mandate that Aksoy receive his estimated actual earnings rather than the guaranteed minimum under the contract. The district court distinguished Flores, noting that the Flores court employed the actual-earning method of calculating tips specifically because in that case, unearned tips were not predetermined or paid by the employer. In contrast, Aksoy's unearned tips were predetermined under the contract. Therefore, because Askoy undisputedly received the amount guaranteed under the contract, the district court concluded that Apollo was entitled to summary judgment.

II.

STANDARD OF REVIEW


We review de novo the district court's grant of summary judgment and consider all
evidence in the light most favorable to the non-moving party. See Flores v. Carnival, 47 F.3d 1120, 1122 (11th Cir.1995).

III.

DISCUSSION

In Flores, this court addressed whether a sick or injured seaman whose income consisted mainly of tips may recover lost tip income in an action for maintenance and cure. See id. at 1121. In Flores, the employment contract promised both a monthly salary and, in addition, " "daily tips for your services ... you may expect to go as high as $1000.00 a month.' " Id. Flores fell ill and received unearned wages in an amount equal to the lowest paid non-gratuity-earning crew member. Carnival maintained that it had no legal duty to pay Flores anything more than his salary under the contract, $ 45 per month. See id. at 1121-22.

This court reversed the district court's grant of summary judgment for Carnival, holding that Flores was entitled to recover his average tip earnings as unearned wages. See id. at 1122, 1127. In determining the appropriate method for calculating Flores's wages remedy, the court considered the purposes and policy underlying the remedy, the decisions of courts considering similar questions under workers' compensation law, and the actual wording of Flores's contract. See id. at 1122. The court explained that the right to maintenance and cure differs from traditional contract rights; thus, the remedies available are not limited to contractual remedies. See id. at 1126. Noting that the bulk of Flores's compensation came from tips rather than the monthly salary promised in the contract and that an action for maintenance and cure is designed to put the employee in the position he would have been in had he continued to work, the court concluded that Flores was entitled to unearned wages in the amount of his average weekly tips. See id. at 1127.

Applying the principles espoused in Flores to the facts of the instant case, we conclude that Aksoy's unearned wages should be measured by the amount of his average weekly tips rather than the minimum amount guaranteed in the contract. Like the situation in Flores, the "custom and practice" and the expectation of the parties was that tip income would constitute a substantial portion of Aksoy's compensation. Moreover, the only way to place Aksoy in the same position he would have been in had he continued to work is to allow Aksoy to recover wages in the amount that he would have earned during the period of time he was ill.

Apollo urges us to distinguish Flores, arguing that the Flores court employed the "average weekly tips" method for determining Flores's unearned wages specifically because Flores's contract did not set a rate for unearned tips and because unearned tips were not paid by the employer; here, by contrast, the actual language of Aksoy's contract set out an amount of unearned wages that Apollo undisputedly paid. We decline to distinguish Flores on those grounds. The language in Aksoy's contract did not purport to place a limit on the amount of unearned wages Aksoy was entitled to receive; it merely guaranteed that he would receive, at a minimum, the amount stated in the contract. We therefore need not decide whether the right to unearned wages may be modified by contract and to what extent, if any, the Flores method of determining unearned wages applies in such cases. Here, Aksoy's contract neither estimated the tips he would receive nor purported to place a ceiling on the unearned wages to which he was entitled.

IV.

CONCLUSION

For these reasons, we conclude that the district court erred in granting summary judgment for Apollo. We therefore vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED.

US V. DECORAH,

In the United States Court of Appeals For the Seventh Circuit
No. 94-1246

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PARMENTON T. DECORAH,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Wisconsin. No. 93 CR 78--John C. Shabaz, Judge.

ARGUED DECEMBER 8, 1994--DECIDED JANUARY 17, 1995
Before POSNER, Chief Judge, REAVLEY,* and COFFEY, Circuit Judges.

REAVLEY, Circuit Judge. Decorah was indicted for ac- cepting money as an agent of an Indian tribal government, in exchange for his influence and rewards in connection with a business of the tribal government in violation of 18 U.S.C. sec. 666(a)(1)(B). Decorah waived his right to a jury trial and both parties agreed to proceed upon stipulated facts. The district court found the defendant guilty and he appeals. We affirm.

BACKGROUND

Decorah was an elected representative on the Wiscon- sin Winnebago Business Committee ("WWBC"), which is a body elected to make all business and governmental de- cisions for the Wisconsin Winnebago Tribe (the "Tribe"). WWBC's responsibilities included decisions affecting the operation of the tribal gaming business. Glenn V. Corrie, doing business as Jenna Corporation, sought to obtain a contract with the Tribe to manage that gaming business. In order to obtain this contract, he needed six votes on the WWBC. Decorah received cash from Corrie for his vote and efforts to get the other necessary votes. The contract was awarded, but it was declared void for lack of the required federal approval. Decorah and his group then awarded Corrie a new contract, but they acted with- out the required quorum of the WWBC. Jenna Corpora- tion operated the gaming casino for a time, but eventually its second contract was declared void.

The issue of the Corrie contract created factions in the WWBC. The members opposed to contracting with Corrie constituted a minority of the members of the WWBC. Under its bylaws, WWBC could not conduct business without a quorum of at least seven members present at a meeting. The minority decided to block the action of the six mem- bers supporting Corrie by refusing to attend meetings. The Corrie supporters, known as the "six-pack," never- theless continued to hold meetings and make decisions af- fecting the tribal gaming business, including the award of the second contract to Corrie. The decisions favoring Corrie and his company were implemented, despite the fact that the six-pack was not acting under appropriate authority, and Corrie continued to reap the benefits of the contract in question, despite the fact that it was even- tually declared legally void.

Throughout the time period relevant to this case, De- corah admittedly voted and convinced the other members of the six-pack to vote on decisions which favored Corrie and his company. Decorah also admittedly received cash and other items of value from Corrie in exchange for this influence and reward.

DISCUSSION

Decorah argues that since no quorum existed, no legal tribal government acted. His action at those meetings, he says, were not those of an agent of a tribal government. He contends that, without legal government action and a legal contract for the gaming business, rewards obtained by the bribes were not tribal government business. His arguments have no merit.

Decorah was empowered as a representative of the tribal government to act as its agent. The fact that the decisions of the tribal government as a whole were void, did not affect Decorah's status as a government agent. The statute prohibits an agent of an Indian tribal govern- ment from accepting bribes that are intended to obtain influence or reward "in connection with any business" of the tribal government. Corrie wanted a contract for the gaming business, and he and the Tribe did in fact obtain significant revenues from that business. Decorah, the tribal government's agent, received bribes which were in- tended to influence, and did influence, his actions with respect to the business of the tribal government.

AFFIRMED.

FOOTNOTE
* Hon. Thomas M. Reavley, Circuit Judge for the United States Court of Appeals, Fifth Circuit, sitting by designation.

HRE v U.S.

United States Court of Appeals for the Federal Circuit


97-1197
HRE, INCORPORATED,
Appellant,
v.

THE UNITED STATES,
Appellee.

Henry D. Danforth , Watt, Tieder & Hoffar, L.L.P., of McLean, Virginia, argued for appellant.

Robert Steinbuch , Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for appellee. On the brief were
Frank W. Hunger , Assistant Attorney General, David M. Cohen , Director, and Paul S. Padda , Attorney.

Appealed from:Armed Services Board of Contract Appeals

United States Court of Appeals for the Federal Circuit

97-1197

HRE, INCORPORATED,

Appellant,

v.

THE UNITED STATES,

Appellee.
______________________________
DECIDED: April 29, 1998
______________________________
Before RICH, Circuit Judge , FRIEDMAN, Senior Circuit Judge , and LOURIE, Circuit Judge .

FRIEDMAN, Senior Circuit Judge .

The question is whether the Armed Services Board of Contract Appeals ("Board") correctly interpreted a government contract for renovation of a building as requiring the contractor to insulate certain piping. We agree with the Board's interpretation of the contract and we affirm its decision.

I.

The Department of Health and Human Services ("government") awarded a contract to HRE, Inc., for renovation of a federal office building. The contract's instructions for insulating piping and air handling and distribution equipment provide in relevant part:

3.3INSULATION FOR LOW-TEMPERATURE PIPING

A.General: Unless otherwise specified, insulate low-temperature
piping.

B.Locations Insulated: Install insulation in the following
locations and as indicated:

1.Chilled water piping.

2.Dual-temperature
piping (with alternate heating and cooling).

3.

4INSULATION FOR AIR HANDLING

AND AIR DISTRIBUTION EQUIPMENT AND DUCTS

A.General: Unless otherwise specified insulate air handling and air distribution
equipment.

B.Ventilation System Locations Insulated [if leaving temperatures less than 32 o C]:

1.Heating coil enclosures.

C.Air Heating

System Locations Insulated [if leaving temperature more than 32 o C]:

1.Heating coil enclosures and external headers.

During performance of the contract, the government directed HRE to insulate condenser water piping, vortex dampers, and the new ductwork that HRE had installed pursuant to other provisions of the contract. HRE objected to these directives, contending that they called for work the contract did not require. HRE complied with the directives, and subsequently filed with the contracting officer claims seeking an equitable adjustment for this work. The contracting officer denied HRE's claims and the Board affirmed. The Board held that the language of the contract required HRE to do the work.

II.

The parties dispute the meaning of the above-quoted sections 3.3 (Insulation for Low-Temperature Piping) and 3.4 (Insulation for Air Handling and Air Distribution Equipment and Ducts). Because the factual background and legal issues relevant to interpreting each section are for our purposes identical, we simplify our discussion by focusing on the provisions for insulating low-temperature piping.
A.Section 3.3A unambiguously states: "Unless otherwise specified, insulate low-temperature piping." HRE concedes that condenser piping is "low- temperature piping." Nothing in section 3.3 "specifie[s]" that the low- temperature condenser piping is not to be insulated, and the clear language of section 3.3A requires such insulation.

That section 3.3A means what it says is confirmed by another provision of the contract that contains specific exceptions to an indistinguishable general insulation requirement. Section 3.2A provides that piping and equipment for steam and hot water systems should be insulated "[u]nless otherwise specified." Section 3.2C, entitled "Locations Not Insulated," lists specific items of equipment that, although within 3.2A's general category of "equipment for steam and hot water heating systems," need not be insulated.

Interpreting the contract in its entirety, see Zinger Constr. Co. v. United States , 807 F.2d 979, 981 (Fed. Cir. 1986), we conclude that if the parties intended to exempt condenser piping from the requirement in section 3.3A that low-temperature piping was to be insulated, the contract would have explicitly said so-as it did in section 3.2C for certain steam and hot water systems. In the absence of such an exemption, we agree with the Board that section 3.3A should be applied as written to cover all "low- temperature piping" "[u]nless otherwise specified," and that the contract did not "otherwise specif[y]" that condenser piping need not be insulated.
A.HRE contends, however, that the history of the drafting of the contract shows that such piping was not to be insulated. The technical provisions of the contract consisted of portions of a government document that supplemented a document known as "Masterspec," an American Institute of Architects set of work standards widely used in the construction industry. In preparing the contract, the government's draftsman made various changes in the Masterspec Supplement.

Section 3.4 of the Masterspec Supplement, which governs "insulation for low-temperature piping" and parallels section 3.3 of the contract, lists six types of equipment under the heading "Locations Insulated." This is the counterpart of section 3.3B of the contract. Item 2 of that listing is condenser piping. That item was not included in section 3.3B of the contract, which contains only two other items.

HRE contends that because condenser piping was not included in section 3.3B, the contract's general insulation requirement was not intended to cover such piping. It is section 3.3A, however, and not section 3.3B, that defines the work to be done. Section 3.3B identifies the locations.

The only exception to the general insulation requirement in section 3.3A is if non-insulation is "otherwise specified." The use of the word "specified," instead of a more general word like "indicated," strongly suggests that any such exception must be explicitly stated-as it is in section 3.2C. The negative implication upon which HRE relies-that the absence of any reference to condenser piping in the "locations insulated" provision in section 3.3B shows that section 3.3A does not cover such piping-does not satisfy the "otherwise specified" requirement of the latter section.
HRE's construction of the contract violates the well-settled rule that when the provisions of a contract are clear, "the court may not resort to extrinsic evidence to interpret them." McAbee Constr., Inc. v. United States , 97 F.3d 1431, 1435 (Fed. Cir. 1996). "Outside evidence may not be brought in to create an ambiguity where the language is clear." City of Tacoma v. United States , 31 F.3d 1130, 1134 (Fed. Cir. 1994). Here, as we have shown, the general insulation requirement in section 3.3A is clear and unambiguous. Its coverage cannot be restricted by resort to evidence-primarily the testimony of the government official who drafted the contract-regarding the circumstances under which the Masterspec Supplement provision listing condenser piping as one of the six locations to be insulated was not included in section 3.3B of the contract.

Invoking the principle that a contract should be interpreted to give meaning to all of its provisions, see Kimbrell v. Fischer , 15 F.3d 175, 178 (Fed. Cir. 1994), HRE argues that if the contract is read to require insulation of items not specifically listed in section 3.3B, then that provision has no meaning. By the same reasoning, however, HRE's contention would deny meaning to the general insulation requirement of section 3.3A. Although the precise reason for the listing of two types of piping in section 3.3B may be unclear, they may have been included to avoid any question that those two categories were low-temperature piping to be insulated.

C. HRE's arguments relating to section 3.4's provisions for insulating air handling and distribution equipment mirror its arguments relating to section 3.3's provisions for insulating low-temperature piping and thus require only brief discussion. HRE concedes that ductwork and vortex dampers are "air handling and air distribution equipment," and cannot dispute that section 3.4A requires "[u]nless otherwise specified insulate air handling and air distribution equipment." HRE cannot point to any provision in the contract that "otherwise specifies" that ductwork and vortex dampers are not to be insulated. For the reasons given in our discussion of section 3.3, the general requirement in section 3.4A that air handling and air distribution equipment be insulated "[u]nless otherwise specified" requires insulation of
ductwork and vortex dampers.

D. This contract is hardly a model of clarity, and the government would be well advised to review its provisions to make them more comprehensible and avoid ambiguity for the benefit of contractors, government officials, and the courts. Such clarification would also avoid future litigation that seems likely to arise over the various provisions of the contract based on the Masterspec Supplement. In particular:

1. If the government continues to define coverage by a general provision subject to specific exceptions, it might decide to include in every contract a specific exception provision with an instruction that if there are no exceptions that should be stated in the exception provision. Section 3.3A would be clearer if it stated something like: "General. Unless specifically excepted under section ____ below, insulate low- temperature piping."

2. The precise function of paragraph 3.3B is unclear. Although it purports to describe "Locations Insulated," it specifies not the locations but particular kinds of piping. Such a provision is bound to cause confusion and disputes.
There may be other provisions of the Masterspec Supplement that should be revised and clarified. The two items discussed above are singled out only because they are directly involved in this case.

CONCLUSION

The Board's decision affirming the denial of HRE's claim for equitable adjustment is

AFFIRMED.

Thursday, May 29, 2008

TERRY V . POTTER

ELECTRONIC CITATION: 1997 FED App. 0132P (6th Cir.)

File Name: 97a0132p.06

No. 95-6697

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
_________________

RICHARD WAYNE TERRY,

Petitioner-Appellant,

v.

JOHN W. POTTER, JUDGE,
Respondent-Appellee.

ON APPEAL from the United States District Court for the Western District of Kentucky
__________________
Decided and Filed April 15, 1997
__________________
Before: ENGEL, MERRITT, and MOORE, Circuit Judges.
ENGEL, Circuit Judge. Petitioner Richard Terry appeals the district court's denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We reverse.

I.

Terry was convicted in a Kentucky circuit court of the wanton murder of his brother-in-law, Abraham King. The incident occurred soon after the death of Terry's sister, for which Terry apparently blamed King. Terry and King were both in Terry's mother's house, and Terry shot King at close range in the back of the head. According to Terry, the shooting was in self-defense because King had pulled out the gun.
The indictment charged that Terry had "committed the offense of Murder by intentionally or wantonly causing the death of Abraham King." In Kentucky, intentional murder and wanton murder are forms of the capital offense of murder:

A person is guilty of murder when:

(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime; or

(b) Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.

Ky. Rev. Stat. § 507.020(1) (emphasis added). At trial, the jury was instructed as
follows:

[Y]ou may find the defendant, Richard Wayne Terry, not guilty or you may find him guilty of one of the following offenses:

(1) Intentional Murder . . . ;

OR

(2) Wanton Murder . . . ;

OR

(3) First-Degree Manslaughter . . . ;

OR

. . . .

The jury was presented with one verdict form for each offense. Each form contained two possible places for the foreperson to sign: one for "not guilty," and one for "guilty." The jury found Terry guilty of wanton murder and left blank the forms for intentional murder and the other charges. Neither Terry nor the prosecutor objected in any way to the jury's leaving all but one of the pages blank. The court entered judgment "that the defendant is guilty of the crime of MURDER (WANTON)" and sentenced Terry to forty-five years' imprisonment.

The Supreme Court of Kentucky reversed the conviction, holding that the trial court had erred in denying Terry's motion for a directed verdict on the charge of wanton murder because there was no doubt from the evidence that the shooting was intentional. The court explained that wanton murder is not a lesser-included offense of intentional murder. Rather, wanton murder and intentional murder are the two possible ways to commit "murder." Each is as culpable as the other. What distinguishes the mental state of wanton murder from that of intentional murder is that "the actor is indifferent to who is/are the victim(s)." The court noted that if the jury believed Terry's self-defense story, it could find him guilty of second-degree manslaughter or reckless homicide. If the jury did not believe the self-defense story, the court continued, it could find Terry guilty of intentional murder or first-degree manslaughter. The court concluded that "[w]anton murder is not an available option under the evidence presented." McGinnis v. Commonwealth , 875 S.W.2d 518, 520-21, 528-29 (Ky. 1994).

On remand, facing a new trial for intentional murder, Terry filed a motion to dismiss on grounds of double jeopardy. The trial court denied that motion, and the
Kentucky Court of Appeals rejected Terry's petition for a writ of mandamus or prohibition to bar retrial. The Supreme Court of Kentucky affirmed, opining that although Terry could not be retried for wanton murder, the Double Jeopardy Clause did not bar retrial for intentional murder because "intentional murder and wanton murder are not the same offense." Terry v. Potter , No. 94-CA-2671-OA, at 3 (Ky. July 6, 1995). Terry then filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the Western District of Kentucky. The district court denied the petition, and this appeal followed.

In denying the petition the district court ruled:

In the case at bar, the inconclusive termination of the first trial was apparently due to an oversight on the part of the prosecutor, the defendant, and the trial judge. This is true even though the trial judge correctly instructed the jury on the theory of intentional murder. We can discern no motive on the part of the prosecutor in overlooking the intentional murder theory since the evidence was very strong in support of that theory. We therefore decline to bar reprosecution on the theory of intentional murder. Our opinion in this regard is bolstered by the fact that under Kentucky law, as reflected in the statute KRS 507.020, wanton murder and intentional murder are two different offenses. See Smith v. Commonwealth , [1]
"Under KRS 507.020(1), ´murder' is but one offense which may be committed in one of two different ways: either by intentionally causing the death of another person, or by wantonly engaging in conduct which ´causes the death of another person' ´under circumstances manifesting extreme indifference to human life.'" 737 S.W. 2d 683 (1987).

* * *

As pointed out in McGinnis, supra, when a person wantonly engages in conduct under circumstances manifesting extreme indifference to human life and which causes a grave risk of death to another person . . . , that constitutes the crime of wanton murder.

Since the Court is of the opinion that two separate offenses were charged in the indictment, and only one was disposed of conclusively, and since no bad motive on the part of the prosecutor is shown, petitioner is not entitled to rely upon the double jeopardy clause.

II.

We review de novo the legal conclusions of the district court. Lundy v. Campbell , 888 F.2d 467, 469-70 (6th Cir. 1989). The Kentucky Supreme Court's interpretation of Kentucky law is binding on federal courts. Gilbert v. Parke , 763 F.2d 821, 826 (6th Cir. 1985).

The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." At a jury trial, jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz , 437 U.S. 28, 35 (1978). In general, jeopardy ends with an acquittal or a conviction; if the conviction is reversed on appeal, however, a defendant may be retried for the same offense. United States v. Ball , 163 U.S. 662, 672 (1896). The Supreme Court has explained Ball as holding that jeopardy continues until a conviction becomes final on appeal. See Price v. Georgia , 398 U.S. 323, 326 (1970). An exception to this rule is that retrial is barred when a conviction is reversed because of insufficient evidence. Burks v. United States , 437 U.S. 1, 17-18 (1978). The peculiar circumstance of Terry's case is that the jury did not explicitly acquit or convict him of intentional murder.

The issue to be decided here is whether Terry's jeopardy of conviction for intentional murder continued after his trial or expired when the jury was discharged.

In Green v. United States , 355 U.S. 184 (1957), the Supreme Court addressed a case with a similar background. A District of Columbia jury had been instructed that it could find the defendant guilty of either first- or second-degree murder. It found him guilty of second-degree murder, and its verdict was "silent" on the first-degree charge. On appeal, the conviction for second-degree murder was reversed. On remand, the defendant was tried again and was found guilty of first-degree murder. The Supreme Court held that the second trial violated the Double Jeopardy Clause. The Court noted that for jeopardy to attach, "it is not . . . essential that a verdict of guilt or innocence be returned . . . ." Id. at 188. Because "the original jury had refused to find [the defendant] guilty on [the first-degree murder] charge," the Court found that jeopardy on that charge had ended with the discharge of the jury. Furthermore, the Court held that the silent verdict amounted to an "implicit acquittal." The jury had had "a full opportunity" to find the defendant guilty of first-degree murder, the Court noted, so its failure to convict the defendant must be treated "no differently" from a verdict of not guilty. Id. at 190-91.
The Commonwealth argues that Green is inapplicable because wanton murder is not a lesser-included offense of intentional murder in Kentucky. The Green Court explained, however, that the relationship of the two offenses is not determinative:
Green's plea of former jeopardy does not rest on his conviction for second degree murder but instead on the first jury's refusal to find him guilty of felony murder. It is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense.

Id. at 194 n.14.

The next Supreme Court case to address a similar situation was Cichos v. Indiana , 385 U.S. 76 (1966). The defendant had been charged in state court with reckless
homicide and involuntary manslaughter and had been found guilty only of reckless homicide, the less serious offense. The verdict was silent as to the manslaughter count. After the conviction was reversed on appeal, the defendant was retried on the same two counts, with the same result. The Supreme Court granted a petition for certiorari to decide whether the Double Jeopardy Clause applied to state prosecutions through the Due Process Clause of the Fourteenth Amendment. [2] The Court dismissed the writ of certiorari as improvidently granted because of its finding that even if the Double Jeopardy Clause applied, the defendant could not benefit from it. With little discussion and only a fleeting reference to Green , the Court noted that it could not accept the argument that the first jury had acquitted the defendant of the manslaughter charge. Id. at 80.

We see some tension between Green and Cichos , and we find Green more relevant to this case. Cichos technically decided only that the petition for certiorari had been improvidently granted. Indeed, it has been cited infrequently by the Supreme Court, far less often than Green . Moreover, to the extent that Cichos discussed the "silent verdict" issue at all, it placed great weight on the relevant statutory scheme, which provided that a conviction of either reckless homicide or involuntary manslaughter "shall be a bar to a prosecution for the other." 385 U.S. at 78 (quoting Ind. Stat. Ann. § 47-2002 (1965)). The Kentucky murder statute has no such provision.

Three years later, the Court addressed a similar issue in Price v. Georgia , 398 U.S. 323 (1970). The defendant had been tried for murder and found guilty of the lesser-included charge of voluntary manslaughter; the jury verdict had made no reference to the murder charge. After the conviction was reversed on appeal, the defendant was retried under the same indictment with the same verdict. Without any mention of Cichos , the Court held that under Green , the retrial placed the defendant in double jeopardy. The Court stressed that the Double Jeopardy Clause protects defendants from the "risk of conviction"; because the defendant had once faced the risk of conviction for murder, he could not again be subjected to that risk, notwithstanding the lack of an explicit verdict on that charge. Id. at 326-29.
We hold that under Green and Price , Terry may not be retried for intentional murder. As we noted in Saylor v. Cornelius , 845 F.2d 1401 (6th Cir. 1988), "[w]hat happened here most accurately is described as a termination of the jeopardy . . . , without a conviction or an acquittal, but a termination nonetheless." Id. at 1404. The jury had ample opportunity to convict Terry on the intentional murder charge at the first trial, and it did not. McGinnis , 975 S.W.2d at 520. Retrying Terry would violate his "valued right to have his trial completed by a particular tribunal." Crist , 437 U.S. at 36 (quoting Wade v. Hunter , 336 U.S. 684, 689 (1949)). In sum, although jeopardy on the wanton murder charge may have continued after the trial and successful appeal, we hold that jeopardy on the intentional murder charge ended with the trial.

Furthermore, the verdict on the intentional murder charge can be interpreted as an implied acquittal. [3] Like the Green jury, the jury at Terry's trial was instructed in the disjunctive--that it could find Terry guilty of intentional
murder or wanton murder. Once the jury found Terry guilty of wanton murder, therefore, there was no need for the foreperson to sign the "not guilty" line on the intentional murder verdict form. [4] This was not a case in which the inconclusiveness of the verdict was any party's "fault." See United States v. Scott , 437 U.S. 82, 95-96 (1978) (fault of defendant); Saylor , 845 F.2d at 1408 (fault of prosecutor).

We realize that a Second Circuit decision reached the opposite conclusion in a similar case. In United States ex rel. Jackson v. Follette , 462 F.2d 1041 (2d Cir. 1972), the defendant had been tried in the New York state courts for two types of first-degree murder: premeditated murder and felony murder. The jury was instructed that if it returned a verdict on one count, it should remain silent as to the other. The defendant was convicted of premeditated murder; after this conviction was overturned in a habeas corpus action, he was retried on both counts and found guilty of felony murder. The Second Circuit held that the retrial was permissible because the first jury had not implicitly acquitted the defendant of felony murder. The court read Green as being limited to situations in which a defendant is convicted of a lesser-included offense at the first trial. Id. at 1050. We do not read Green so narrowly; indeed, Green noted that it is "immaterial" whether the charge that originally resulted in a guilty verdict is a lesser-included offense of the charge that is retried. 355 U.S. at 194 n.14.

Jackson queried whether the "continuing jeopardy" language in Ball and other existing case law attached to first-degree murder as a whole or merely to the particular form of first-degree murder on which the first conviction was based. 462 F.2d at 1045-46. That question was not answered in Green , in which the relevant offenses were first- and second-degree murder. The statute relevant to the instant case is more analogous to that in Jackson than to that in Green , because intentional murder and wanton murder are forms, rather than degrees, of the unitary offense of murder under Kentucky law. If we viewed the continuing jeopardy on the particular offense of wanton murder as constituting jeopardy on the general offense of murder and therefore as encompassing jeopardy on the particular offense of intentional murder, we could not rule in Terry's favor. The Jackson court implicitly adopted such a view, but we cannot accept that reasoning.

Judge Oakes in Jackson candidly acknowledged that "[w]e have, in short, a case that is sui generis, not controlled by any Supreme Court case on its facts, and not capable of simple resolution either on an historical or logical basis." Id. at p. 1049. He then concluded that "[w]e come to the point where we must weigh on a fine scale the competing interests of the public and the petitioner." Id. We of course have the benefit of continuing case law generated since Jackson was decided in 1972, including authority within our own circuit. And, if Jackson is in fact sui generis, we deal here with a different state's own statutory scheme. Even that, however, does not fully demarcate our different viewpoint.

While we respect the careful logic which led Judge Oakes to his decision we cannot
follow it. If indeed it is proper to follow a prudential rationale when interpreting federal constitutional law we believe that the constitutional language embodies more durable stuff and is entitled to greater deference. "Twice put in jeopardy" means just that. If Terry is now to stand trial on the intentional murder charge it will be fully twice that he has, and none of the justifications used in existing Supreme Court and Sixth Circuit authority in our judgment exist within the factual confines of this case. Further, even assuming it is within our power to bend the force of the principle on other considerations which led the Second Circuit to weigh and balance the interests of the petitioner and the public, or as here to refuse to enforce the constitutional protection simply because only when no "bad motive" of the prosecutor is shown, we do not view application of such standards as that benign. Neither the defendant here nor his counsel can be charged with having brought on the dilemma faced by the Kentucky court. It is not for us to extricate that court from the untoward results of a decision construing Kentucky statutory law, nor to question the wisdom of its own logic in doing so. That is Kentucky's business; ours is application of the Fifth Amendment as made applicable to state criminal prosecutions under the Fourteenth. We respectfully decline to view the Kentucky court problem as merely an "oversight" for indeed it appears to have been a common practice rather than an isolated one. Terry has already stood trial once and was already in very real jeopardy of a jury conviction for intentional murder, a conviction which we now know would have been upheld on appeal. Terry has already gone through not only the risk but the trauma of that trial, and his counsel has already done his job at the first trial, whoever paid him. It may be true that the prosecutor was free of guile or design if he is otherwise to be charged fault for letting the "oversight" to occur, but what about the next time someone in Kentucky is tried under similar circumstances? How can anyone tell whether the motive was innocent or covertly designed to procure a second bite of the apple should the first one come a cropper or produce a result not to the prosecution's liking? Does the double jeopardy clause allow such a result? Aren't these exactly the dangers the double jeopardy clause was designed to prevent?

The Kentucky statute separately describes intentional murder and wanton murder, and we find that continuing jeopardy as to one may not be bootstrapped onto the other. We recognize that if a charge of murder is brought under two legal theories, such as direct and accomplice liability, or two factual theories, such as shooting and stabbing, the reversal of a conviction based on only one of the theories may not bar retrial under the other theory. See United States v. Garcia , 938 F.2d 12, 15 (2d Cir. 1991). When a charge of murder is brought under two separate statutory subsections of a unitary offense, however, as in this case, jeopardy attaches separately as to each. See United States v. Cavanaugh , 948 F.2d 405 (8th Cir. 1991). The jury was discharged without convicting Terry of intentional murder, and now the Commonwealth may not again subject him to the same risk of conviction under Ky. Rev. Stat. 507.020(1). See Price , 398 U.S. at 326 .
III.

For the foregoing reasons, we REVERSE the judgment of the district court and remand with instructions to grant the writ of habeas corpus.
________________________________________
FOOTNOTES

[1]

The language in McGinnis relied upon by the district judge is:

[2]

The Supreme Court later held that the Double Jeopardy Clause does apply to state prosecutions. Benton v. Maryland , 395 U.S. 784, 794 (1969).

[3]

Although we disfavor the citation of unpublished decisions, 6th Cir. R. 24(c), we cannot help but mention that we have ruled that double jeopardy barred retrial in almost identical circumstances. Terry v. Peers , Nos. 85-5076, 85-5077, 1986 WL 16495(6th Cir. Feb. 21, 1986). In Terry [sic Allen Anthony Terry], the jury at the defendant's trial in Kentucky had received the same instructions as in this case. Id. at *1 n.2. The jury found that defendant guilty of wanton murder and left the other verdict forms blank, and the conviction was reversed on appeal. We held that retrial for intentional murder was barred because of an "implicit acquittal." Id. at *1.

[4]

We do not comment on the effect of the silent verdict as to charges that might be considered lesser-included offenses of wanton murder under Kentucky law. See Morris v. Mathews , 475 U.S. 237, 245 (1986).

BONILLAS v D.R. HILL

U.S. 9th Circuit Court of Appeals

BONILLAS v D.R. HILL

9656774

LOUIS LUJAN BONILLAS,

Petitioner-Appellant,

No. 96-56774

v.

D.C. No.

D. R. HILL, Warden; ATTORNEY

CV-96-06021-WMB

GENERAL OF THE STATE OF

OPINION

CALIFORNIA,

Respondents-Appellees.


Appeal from the United States District Court
for the Central District of California
William Matthew Byrne, Jr., Chief Judge, Presiding

Argued and Submitted
December 2, 1997--Pasadena, California

Filed January 29, 1998

Before: Cynthia Holcomb Hall, Melvin Brunetti, and
Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Brunetti

_________________________________________________________________

COUNSEL

David Negus, Deputy Public Defender, Rancho Cucamonga,
California, for the appellant.

Frederick R. Millar, Jr., Deputy Attorney General, San Diego,
California, for the appellees.

_________________________________________________________________

OPINION

BRUNETTI, Circuit Judge.

On January 27, 1983, a California jury returned the follow-
ing verdict: "We, the jury in the above titled action, find the
defendant, Louis Lujan Bonillas, guilty of the crime of mur-
der, as charged in the Information, as to Count I."1 The court
admonished the jurors not to discuss the case and to refrain
from reading about the case. The court then excused the jurors
and directed them to call in on February 2, 1983, to receive
instructions on when to reconvene for the penalty phase.

On January 28, 1983, defense counsel informed the court
that the guilty verdict failed to expressly specify the degree of
murder. On January 31, 1983, the court ordered the jurors to
reassemble. Defense moved that, pursuant to California Penal
Code S 1157,2 the degree of murder must be fixed at second
degree. The court denied the motion and instructed the jury to
retire and consider the appropriate degree of murder. The
court provided the jury with two verdict forms, one finding
murder in the first degree and the other finding murder in the
second degree. The jury then returned a verdict of first degree
murder. Bonillas was subsequently sentenced to death.
In 1989, the California Supreme Court reversed the judg-
ment of death, but affirmed the judgment as to guilt. Bonillas
filed a 28 U.S.C. S 2254 petition for writ of habeas corpus in
district court. The district court denied the petition and Bonil-
las now appeals.3

We review de novo a district court's denial of a S 2254
habeas petition. Dyer v. Calderon, 113 F.3d 927, 933 (9th Cir.
1997).

I. Double Jeopardy

Bonillas first argues that the trial court violated the Double
Jeopardy Clause by resubmitting the verdict to the jury to fix
the degree of murder. Specifically, he contends that California
Penal Code S 1157 dictates that he was convicted of second
degree murder and effectively acquitted of first degree murder
because the jury initially returned a verdict of murder without
specifying a degree. Thus, he argues, the trial court violated
the Double Jeopardy Clause and Green v. United States, 355
U.S. 184 (1957), by allowing the jury to reconsider first
degree murder.

[1] This argument fails because Bonillas was not acquitted
of first degree murder under California law. The Supreme
Court of California ruled that S 1157 did not apply to fix the
degree of murder in Bonillas' case. People v. Bonillas, 48 Cal.
3d 757, 779 (1989). In Bonillas, the court held that the trial
court was authorized to reconvene the jury to complete its
verdict, stating:

Where, as here, further proceedings are to take place,
the jury has not been discharged, the jurors have
been specifically instructed that they are still jurors
in the case, they have been admonished not to dis-
cuss the case with anyone nor to permit anyone to
discuss the case with them, and they have been
directed not to read anything about the case, the
jurors have not thrown off their character as jurors
nor entered the outside world freed of the admoni-
tions and obligations shielding their thought pro-
cesses from outside influences. Clearly, the jury here
remained within the court's control, their verdict was
incomplete, and the court was authorized to recon-
vene the jury to complete its verdict.

Id. at 773.

[2] Bonillas argues that under California Penal Code S 1164,4
as it read at the time of his trial in 1983, a verdict is complete
when received by the clerk, acknowledged by the jury, and
recorded, if no disagreement is expressed by any juror. The
California Supreme Court, however, reasonably construed its
prior precedent to require that the jury also be discharged
before the trial court loses its jurisdiction to reconvene the
jurors. Id. at 770-71.

[3] Because the trial court was authorized to reconvene the
jury to complete the verdict, the jury lawfully made an
express finding of first degree murder. Id. at 769. Thus, the
jury did not fail to specify a degree of murder and, accord-
ingly, S 1157 did not effectuate a conviction of second degree
murder.
[4] Furthermore, under the principles of Schiro v. Farley,
510 U.S. 222
(1994), a review of the entire record does not
show that the jury's silence as to the degree of murder was
tantamount to an acquittal of first degree murder. First, the
trial court instructed the jury that if they were to find Bonillas
guilty of first degree murder, they were then to decide
whether the murder was committed under a special circum-
stance. The jury's verdict did expressly find the special cir-
cumstance, implying that they actually found Bonillas guilty
of first degree murder. Second, the verdict sheets originally
provided to the jury did not specify degrees of murder. Thus,
the jury was not reminded by the verdict sheets to specify a
degree. Finally, counsel for the government and for the defen-
dant both informed the jury that they did not need to find a
degree of murder because felony murder was the only murder
theory that was being submitted. Under Schiro, the record
does not establish that the jury "actually and necessarily"
fixed the degree of murder in Bonillas' favor. Thus, he was
not acquitted of first degree murder and, accordingly, was not
placed in double jeopardy.

II. Due Process

Bonillas next argues that the California Supreme Court's
interpretation of California Penal Code S 1157 in Bonillas
violated his due process rights. He contends that the court
interpreted S 1157 in an "unforeseeable and unsupported"
fashion in violation of a principle articulated in Bouie v. City
of Columbia,
378 U.S. 347, 354
(1964) (stating that "an
unforeseeable and unsupported state court decision on a ques-
tion of state procedure does not constitute an adequate ground
to preclude this Court's review of a federal question").

[5] "[I]t is not the province of a federal habeas court to re-
examine state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to decid-
ing whether a conviction violated the Constitution, laws, or
treaties of the United States." Estelle v. McGuire, 502 U.S.

62, 67-68 (1991). Thus, we cannot reconsider the substance
of the California Supreme Court's interpretation ofS 1157.
However, we can re-examine the propriety of the interpreta-
tion in reference to whether the conviction violated Bonillas'
due process rights.

[6] Specifically, Bonillas argues that the California
Supreme Court's interpretation of S 1157 in Bonillas strayed
from precedent created in People v. McDonald, 37 Cal. 3d
351 (1984), and cases cited therein. Upon review of the
Bonillas opinion, we find that the court's interpretation of
S 1157 was not "unforeseeable and unsupported." The
Bonillas court carefully considered and distinguished
McDonald and the other cases. Thus, the California Supreme
Court did not act in such an erratic fashion as to deprive
Bonillas of his constitutional rights.

AFFIRMED._______________________________________________________________

FOOTNOTES

1 This verdict included the special circumstance of murder committed
during the commission of, attempted commission of, or the immediate
flight after committing or attempting to commit burglary.
2 S 1157 provides: "Whenever a defendant is convicted of a crime or
attempt to commit a crime which is distinguished into degrees, the jury,
or the court if a jury trial is waived, must find the degree of the crime or
attempted crime of which he is guilty. Upon the failure of the jury or the
court to so determine, the degree of the crime or attempted crime of which
the defendant is guilty, shall be deemed the lesser degree."3 Bonillas filed his petition on April 18, 1996. The Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA") applies only to actions
filed on or after April 26, 1996. Lindh v. Murphy, 117 S. Ct. 2059 (1997).
Thus, the AEDPA does not apply to Bonillas' claims.
4 In 1983, S 1164 stated:"When the verdict given is such as the court
may receive, the clerk, or if there is no clerk, the judge or justice, must
record it in full upon the minutes, and if requested by any party must read
it to the jury, and inquire of them whether it is their verdict. If any juror
disagrees, the fact must be entered upon the minutes and the jury sent out;
but if no disagreement is expressed, the verdict is complete, and the jury
must be discharged from the case."

FICKLIN v HATCHER

U.S. 9th Circuit Court of Appeals

FICKLIN v HATCHER
9815025

BENNIE MORGAN FICKLIN,

Petitioner-Appellant, No. 98-15025

v. D.C. No.CV-97-00491-PMP

SHERMAN HATCHER; FRANKIE SUE
DEL PAPA, OPINION

Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding

Argued and Submitted
May 10, 1999--San Francisco, California

Filed May 25, 1999

Before: Joseph T. Sneed, Paul R. Michel 1 and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Sneed

_________________________________________________________________
_________________________________________________________________

COUNSEL

John C. Lambrose, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.

Victor H. Schulze, II, Deputy Attorney General, Las Vegas,
Nevada, for the respondents-appellees.

_________________________________________________________________
OPINION

SNEED, Circuit Judge:

Petitioner Bennie Ficklin ("petitioner") appeals from the
decision of the United States District Court for the District of
Nevada, the Honorable Philip M. Pro, Presiding, which
denied his petition for a writ of habeas corpus. Petitioner
argues that his conviction for first degree murder following a
trial in Nevada state court implicated the Double Jeopardy
Clause of the United States Constitution. He contends that the
instructions given at trial allowed the jury to premise its guilty
verdict on a robbery for which he had already pleaded guilty,
thereby putting him in jeopardy twice for that crime.

The district court disagreed and held that petitioner failed
to establish that his first degree murder conviction was predi-
cated on the robbery. The court found that there was
"sufficient evidence" in the record to support the conclusion
that the jury rested its verdict on a theory of premeditation
and not on felony murder. The district court denied the peti-
tion and this appeal followed.

We have jurisdiction pursuant to 28 U.S.C. S 2253 and
affirm the decision of the district court, albeit on different
grounds.

BACKGROUND

At the age of fifteen, petitioner was arrested for the robbery
of a tavern in Las Vegas, Nevada, and the death of one of its
patrons. Petitioner subsequently was charged with seven
counts of robbery in juvenile court. In these juvenile proceed-
ings, petitioner agreed to admit to one count of robbery in
exchange for the State's agreement to dismiss all other rob-
bery counts.

At the same time, the State pursued murder charges against
petitioner in state trial court. At the conclusion of petitioner's
trial, the trial court instructed the jury that a murder convic-
tion could be supported by a finding of express or implied
malice. The court further instructed the jury that if it con-
cluded that petitioner committed the murder in perpetration of
a robbery, it could imply that petitioner acted with the requi-
site malice. The court also instructed the jury that it could
return a verdict of first degree murder only if it found that
petitioner committed the murder willfully, deliberately and
with premeditation.

There are several pertinent instructions in this case, specifi-
cally:

INSTRUCTION NO. 4:

Murder is the unlawful killing of a human being,
with malice aforethought, either express or implied.
The unlawful killing may be effected by any of the
various means by which death may be occasioned.

In order to prove the commission of the crime of
Murder, each of the following elements must be
proved.

1. That a human being was killed,

2. That the killing was unlawful, and

3. That the killing was done with malice afore-
thought.

Malice aforethought is implied when a Murder is
committed in the perpetration of or in an attempt to
perpetrate a Robbery.

INSTRUCTION NO. 5:

Any kind of wilful, deliberate and premeditated kill-
ing is Murder in the 1st Degree.

INSTRUCTION NO. 8:

Express malice is that deliberate intention unlaw-
fully to take away the life of a fellow creature, which
is manifested by external circumstances capable of
proof.

Malice shall be implied when no considerable provo-
cation appears, or when all the circumstances of the
killing show an abandoned and malignant heart.

INSTRUCTION NO. 9:

All Murder which is not Murder of the First Degree
is Murder of the Second Degree.

Murder of the Second Degree is the unlawful killing
of a human being with malice aforethought, but
without the . . . deliberation and premeditation.

The jury subsequently convicted petitioner of first degree
murder. Petitioner appealed to the Nevada Supreme Court,
arguing, inter alia, that his conviction violated the Double
Jeopardy Clause of the United States Constitution. Petitioner
argued that because he had already pleaded guilty to robbery
in juvenile proceedings, the jury instruction that allowed the
jury to imply malice if it found that petitioner committed rob-
bery (i.e., Instruction Number 4) caused the jury to return a
verdict that punished him a second time for that robbery. The
Nevada Supreme Court rejected petitioner's argument and
affirmed his conviction and sentence. Petitioner filed a peti-
tion for a writ of habeas corpus, again arguing that the convic-
tion violated Double Jeopardy. The district court rejected
petitioner's argument and he timely appealed that decision.

ANALYSIS

[1] We must decide whether the jury in this case relied or
could have relied on an instruction that placed petitioner in
double jeopardy for a robbery to which he had already
pleaded guilty in juvenile court. We conclude that it was error
for the trial court to instruct the jury that it could imply malice
if it concluded that petitioner committed robbery. 2 We hold,
however, that any instructional error was harmless because
we can conclude with certainty from the record that the jury
did not and could not have relied on the faulty instruction to
convict petitioner of first degree murder.

A. Harmless error analysis: Zant v. Stephens.

The Supreme Court's decision in Zant v. Stephens , 462
U.S. 862, 103 S. Ct. 2773, 77 L. Ed. 2d 235 (1983), requires
us to examine the record as a whole to determine whether the
jury rested its guilty verdict on the implied malice theory. In
Zant, the Supreme Court affirmed the death sentence of a
defendant where the jury returned a verdict of death based on
three aggravating circumstances, one of which subsequently
was held unconstitutional by a state appellate court. Id. at 879,
103 S. Ct. at 2744, 77 L. Ed. 2d 235. The Zant jury indicated
on its verdict sheet that the defendant had committed the three
aggravating circumstances, but did not indicate which combi-
nation of the three led it to sentence the defendant to death.
Id. The Supreme Court held that because any of the three
aggravating circumstances were statutorily sufficient to
impose a sentence of death on the defendant, it did not matter
that one subsequently was held unconstitutional. See id. at
881, 103 S. Ct. at 2745, 77 L. Ed. 2d 235. In other words, it
was not necessary to vacate the death sentence because it was
clear from the verdict that the sentence of death was appropri-
ate notwithstanding the jury's reliance on an unconstitutional
aggravating circumstance.

[2] The Zant Court, in a passage important to this case, held
that:

[A] general verdict must be set aside if the jury was
instructed that it could rely on any of two or more
independent grounds, and one of those grounds is
insufficient, because the verdict may have rested
exclusively on the insufficient ground. The cases in
which this rule has been applied all involved general
verdicts based on a record that left the reviewing
court uncertain as to the actual ground on which the
jury's decision rested.

Id. (citing Williams v. North Carolina ,
317 U.S. 287
, 292, 63
S. Ct. 207, 210, 87 L. Ed. 2d 279 (1942) ("To say that a gen-
eral verdict of guilty should be upheld though we cannot
know that it did not rest on the invalid constitutional ground
on which the case was submitted to the jury, would be to
countenance a procedure which would cause a serious impair-
ment of constitutional rights."); Cramer v. United States, 325
U.S. 1, 36 n. 45, 65 S. Ct. 918, 935 n. 45, 89 L. Ed. 1441
(1945); Terminiello v. Chicago,
337 U.S. 1
, 5-6, 69 S. Ct.
894, 896-97, 93 L. Ed. 1131 (1949); and Yates v. United
States,
354 U.S. 298
, 311-12, 77 S. Ct. 1064, 1072-73, 1 L.
Ed. 2d 1356 (1957)) (emphasis added).

B. Application of Zant to petitioner's case.

[3] In this case, the judge instructed the jury that, in order
to find petitioner guilty of first degree murder, it must have
found that the murder was "wilful, deliberate and
premeditated." The jury returned a verdict of first degree mur-
der. Therefore, we know that the jury concluded that the mur-
der was premeditated, notwithstanding the fact that the verdict
was general and did not so specify.

[4] The instructions in this case differ in one significant
respect from general Nevada jury instructions and statutes on
murder. Normally, under Nevada law, first degree murder
includes felony murder, premeditated murder, and murder
committed against a peace officer. See Nev. Rev. Stat.
S 200.030 (1997). However, in this case, instruction number
five, to repeat, defined murder in the first degree only as
"wilful, deliberate and premeditated Murder." Therefore, the
trial court carefully avoided double jeopardy concerns in this
case by instructing the jury that a first degree murder convic-
tion only could be supported by a finding of premeditation. It
did not instruct on the felony murder rule. Under instruction
number nine, in fact, the trial court instructed the jury that all
murder perpetrated without deliberation and premeditation,
including felony murder, is second degree murder. And
instruction number eight defines express malice as a
"deliberate intention unlawfully to take away the life of a fel-
low creature." Because the jury returned a verdict of first
degree murder, it necessarily determined that the murder was
premeditated and deliberate murder, not felony murder predi-
cated on implied malice. Consequently, it is clear that the jury
did not rely on the implied malice instruction."

Thus, because the jury convicted petitioner of first degree
murder, and the instructions defined first degree murder only
as encompassing "wilful, deliberate and premeditated
murder," the jury did not and could not have relied upon
implied malice to convict petitioner. Therefore, the trial
court's instruction that "[m]alice aforethought is implied
when a Murder is committed in the perpetration of or in an
attempt to perpetrate a Robbery" could not have played a part
in the jury's determination that the petitioner was guilty of
first degree murder. We hold that any instructional error was
harmless. See Zant,
462 U.S. at 879
, 103 S. Ct. at 2744, 77
L. Ed. 2d 235.

C. The parties' arguments.

Petitioner nonetheless argues that a harmless error analysis
is inappropriate in this case. In support of that position he
relies on our decision in Suniga v. Bunnell, 998 F.2d 664 (9th
Cir. 1993). Petitioner is incorrect. In Suniga , we concluded
that in circumstances where it was not possible to determine
with certainty whether the jury relied on an unconstitutional
theory to reach its guilty verdict, reversal was required with-
out engaging in a harmless error analysis. 998 F.2d at 668-69.
Suniga, however, is inapplicable in this case. We can tell with
certainty from the jury instructions that the jury rested its ver-
dict on a ground that did not implicate petitioner's constitu-
tional right. It explicitly found that petitioner committed first
degree, premeditated murder. In other words, the jury did not
rely on the implied malice instruction. Any instructional error
was harmless. See supra, pp. 4999-5000.

Respondent asserts that any error in this case is harmless
because the Nevada Supreme Court reviewed the trial tran-
script and found "sufficient" evidence of premeditation. In its
eyes it is of no consequence that the trial court instructed the
jury that it could imply malice if it found that petitioner
engaged in a robbery. Respondent relies on the following pas-
sage from the decision of the Nevada Supreme Court:

[T]here was ample evidence to establish that appel-
lant had committed the murder in a deliberate and
premeditated manner. . . . Specifically, we note that
several witnesses at appellant's trial testified that
appellant had killed the victim with his shotgun at
pointblank range in a manner which appeared to be
intentional. (Emphasis added).

The court also took note that the "prosecution relied primarily
on the theory that appellant had intentionally killed the
victim." (Emphasis added).

This argument misreads Zant. It does not suggest that a
general verdict can be sustained if there is "ample" evidence
presented on a constitutional theory or if the prosecution
"relied primarily" on a constitutional theory. Rather, under
Zant, review must be limited to determining whether it is
absolutely certain from the record that the jury did not rely on
the unconstitutional grounds to convict the defendant. The
Supreme Court emphasized in Zant that "[i]f, under the
instructions to the jury, one way of committing the offense
charged is" not legally proper "the rule of these cases requires
that a general verdict of guilt be set aside even if the defen-
dant's unprotected conduct, considered separately, would
support the verdict."
462 U.S. at 883
, 103 S. Ct. at 2746, 77
L. Ed. 2d 235 (emphasis added).

[5] Thus, it was incorrect for the Nevada Supreme Court
and the district court to rest their holdings on the fact that
there is "sufficient" evidence in the record to support the con-
clusion that the jury convicted petitioner of premeditated mur-
der. Zant limits the harmless error analysis to situations in
which this Court determines that it was impossible for the jury
to have relied on the infirm instruction.

[6] In this case that test was met. It was impossible under
Nevada law--as defined in these instructions--for the jury's
decision to have rested on a theory of implied malice. Peti-
tioner's conviction therefore withstands constitutional scru-
tiny.

For the reasons discussed, the decision of the district court
is

AFFIRMED. the end

_______________________________________________________________

FOOTNOTES

2 It is clear under federal and Nevada law that a prior juvenile adjudica-
tion for robbery and the subsequent prosecution for murder, where the jury
relies on that same robbery to convict a defendant of murder, constitute
multiple trials for the same offense.

First, under Nevada law, a "juvenile proceeding[ ] based upon the
offense alleged in the petition alleging delinquency or an offense based
upon the same conduct are barred if the court has begun taking evidence
or has accepted a child's admission of the facts alleged in the petition. No
child may be prosecuted first as a juvenile and later as an adult, or in two
juvenile court hearings for the same offense." Nev. Rev. Stat. S 62.195(2)
(1997); see also Breed v. Jones,
421 U.S. 519
, 95 S. Ct. 1779, 44 L. Ed.
2d 346 (1975) (adjudication in juvenile proceedings sufficient for jeopardy
to attach). Petitioner accepted responsibility for the robbery charge in
juvenile court before the state finished prosecuting his "adult" trial for
murder. If the offenses of robbery and felony murder are the same for
Double Jeopardy purposes, Double Jeopardy bars the second prosecution
for felony murder.
Second, the Supreme Court has held, in Harris v. Oklahoma, 433 U.S.
682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) (per curium), that the
offenses of robbery and felony murder predicated on that same robbery are
the same offenses for purposes of Double Jeopardy and a defendant cannot
be tried for one offense subsequent to a trial or plea on the other. The
rationale of Harris, and for that matter, double jeopardy itself, is that the
Constitution prohibits the states from having two opportunities to convict
a defendant on the same charge. For example, if the state proceeded
against petitioner for robbery and he was acquitted, the Constitution pro-
hibits the states from attempting to obtain a second conviction for that rob-
bery, whether as an independent charge, or as part of a murder charge.
Therefore, because jeopardy has already attached for petitioner's rob-
bery, it was error for the trial court to instruct the jury that it could imply
malice if it found that petitioner committed robbery. Respondent and the
district court appear to concede that the instruction is erroneous, as it is
raised in neither the briefs to this Court nor in the opinion below. The only
issue in dispute, therefore, is whether the error is harmless.