Sneaking Suspicions
Archives-- February 23-March 1, 2003

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This page includes posts from February 23-March 1, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

March 1, 2003
Associated Press screws up headline on Rwanda-Iraq story, big time

It's Saturday. Maybe somebody is just not taking the weekend news seriously.

Whatever the cause, the AP headline in this story about Rwanda's reaction to the Iraq situation couldn't be more wrong.

As published on the web at 19:09:33 GMT today, the headline reads as follows:

Rwanda Says Diplomacy Best for Iraq Issue.

When one reads the story below, however, it's obvious that the Rwandan government leaders actually support action against Hussein, not diplomacy. The United Nations' sorry history involving the genocidal atrocities committed in that tiny African country played a major role in the Rwandans' views about what to do now:

[A]s the [Security] council debates whether to use diplomacy or force to disarm Iraq, [President Paul] Kagame and many other Rwandans have no doubt about the right answer.

After an African summit in Paris ended Feb. 20 with a declaration of support for France's anti-war strategy, Kagame begged to differ.

"If it was simply a choice between war and peace, then the automatic choice is peace," he told reporters. "But if it is a choice between war and weapons of mass destruction, ...then I would say that war is a better evil than the alternative."

The headline fits with the spin-job attempted by French President Jacques Chirac, but is jarringly offline compared to the Rwandans' real feelings:

At the summit in Paris, French President Jacques Chirac said the 52 African leaders unanimously endorsed the view that more weapons inspection, not war, was the best way to disarm Iraq.

But Kagame quickly made it known that there had been no discussion of the contents of the declaration, and thanked reporters for asking his opinion.

"I have seen people demonstrating," he said. "Are they demonstrating about the choice between peace and war, or are they demonstrating about the choice between war and weapons of mass destruction? I wish the same people had demonstrated when genocide was taking place in Rwanda and when everybody was asking about which word to use to describe how the Rwandans were dying."

I just hope the folks at AP find some way to fix this screw-up, and quickly.

The Rwandans deserve better treatment than this.

March 1, 2003
A Bloody Daisy Chain

Speaking of blood banks, the statewide newspaper ran a story today about the new blood-sharing arrangement among 75 banks around the country and the U.S. military.

Called America's Blood Centers, a consortium of 6 banks will handle direct transfers of blood to the Defense Department. The remaining 69, including my blood bank, will serve as replenishment sources for the lead six.

The civilian blood will be the back-up supply, if the military's usual stocks run low.

The deal will naturally require increased contributions:

"We're asking people who donate once a year to maybe donate three times a year. We're asking people who have never donated to maybe come out and give it a try," said Emily C. Fowlie, a spokeswoman for the Blood Bank of Delaware/Eastern Shore.

Glenn Reynolds noted a new blogger's comments about the same arrangement yesterday.

Personally, I'm hoping that the military eventually learns it has no need to request a single pint from this consortium.

In the meantime:

February 28, 2003
Four Claudes for a political fund-raising headline

Let’s see.

We have a few Democrats vying for campaign contributions from party activists in New Hampshire this week.

New Hampshire is among the first states to hold a presidential primary that means something to the two major political parties.

Party activists from either party, at least this early in the presidential election process, can be counted upon to be the most partisan, and therefore well-disposed to listening to and responding well to some of the more harshly-toned campaign rhetoric.

In some circles, in fact, these folks would be called the political party’s "meat-eaters".

(In other political circles, of course, that phrase alone would be considered hurtful and demeaning, thus immediately disqualifying the user from any further serious political consideration.)

In this environment, AP reporter Mike Glover wrote up a pretty good story about a fund-raising dinner before 500 New Hampshire Democrats, with speakers including Howard Dean, Joe Lieberman, and Al Sharpton.

As Glover reported, the speeches were fiery, partisan, and apparently well received. In addition, the piece noted a few promising curiosities that the headline writers could have pounced upon:

  • Sharpton said Bush was putting the nation's young at risk while giving tax breaks to wealthy friends. "We must have equal sacrifice and equal patriotism," he said.

This is fascinating. I can’t wait to read the always well-dressed Sharpton’s own tax returns, and read all the details about his own personal charitable contributions for the truly needy.

Oh wait. Were those returns ever filed?

  • Dean got an ovation by blasting Bush's threat to disarm Iraq by force, calling it "a unilateral action against a country that doesn't present an immediate threat."

The former governor of Vermont doesn’t want to go after Iraq? I’d be okay with a reasoned debate on that position based on facts, but "unilateral action"? Last time I checked, Great Britain, Spain, and a whole bunch of other allies are not actually part of the United States.

So the AP headline folks had some great material to work with here. But do they take advantage of it?


They just palm off this lame Claude candidate instead:

Democrats Rip Bush at N.H. Fund-Raiser


I give it four Claudes for obviousness.

Next time, give it a bit more effort, okay? I know it’s early, but these kinds of rhetorical pratfalls should be highlighted, not buried under some stunningly pedestrian announcement.

February 27, 2003
Annals of Crime

On several occasions I've had some very pleasant professional conversations with FBI agents. Whenever the discussion turned to crime, the agents almost always said the same thing:

Bank robbers are about the dumbest criminals out there.

The Sixth Circuit issued an opinion today that tends to
confirm this impression.

Frank H. Roche managed to be caught committing a bank robbery in Michigan. He faced significant jail time as a result.

In an effort to reduce the length of his prison term, however, the robber turned to the creative arts:

Prior to sentencing, Roche submitted several documents including: a letter from Ketura Kulberg, the mother of his children; a character reference from Bernice Peters, an administrator at a battered women's shelter; and a letter from Claudia Brayndt, verifying his place of employment together with confirming employment documents. None of the submitted documents were authentic.

The scheme almost worked. The Federal district judge thought the documents were real, and sentenced Roche to only 18 months for the bank robbery charge, down from the normal guideline range of 30-37 months.

The good times didn't last.

Ms. Kulberg contacted the court about the fraudulent letter involving her, which led to Roche's arrest for obstruction of justice.

Finding himself in a hole, and not content to stop digging, Roche then proceeded to make it worse:

Roche approached Kulberg ... and requested that she advise the FBI that she, Kulberg, had consented to permit Roche to write the letter he had forged.

Kulberg then told the authorities about this request.

As one might imagine, the new district court judge handling the new charges tended to be a bit stern when sentencing Roche after he pled guilty to a single charge of obstruction of justice.

Roche will now spend 33 more months in prison, enhanced by two levels because of his attempt to suborn Kulberg into committing perjury.

Roche faired no better on appeal, with the Sixth Circuit turning down the case in short order.


February 27, 2003
Sally Field Moments

In 1985, Sally Field won an Oscar. Her acceptance remarks were quickly recognized as truly special, if not timeless:

"...You like me, right now, you like me!"

I'm feeling that way today, thanks to some rare and pleasant feedback.

Robert Ambrogi's recent column about lawyer-blogs said this site provides "insightful commentary", which is a very pleasant thing to read about one's blogging.

In the mail I also received a collection of extremely flattering evaluation comments from those who attended a Continuing Legal Education presentation I recently made to the Sussex County Bar Association.

These ratings and 79 cents will buy me a cup of coffee at WaWa, but it's nonetheless really nice to receive this response from one's peers.

February 27, 2003
Blood Blogging

There was a fine picture of Glenn Reynolds at his site today, showing the smiling law professor giving blood.

Some folks might have been surprised to see absolute proof that an attorney's blood is in fact the same familiar red color found in humans and other mammals.

Wonders never cease.

Regardless of one's choice of profession, for those who can surpass the increasing medical limitations that limit the potential participants, donating blood is a great way to connect with one's community.

There are also other benefits, as I saw when I donated a pint of Type O last December at our local blood bank. The organization's banner put it succinctly: 

Give Blood. Save Lives. Eat Cookies.

Perhaps other bloggers would be interested in a joint effort to help maintain the nation's critical blood supplies.

Here's a little banner that might help. Feel free to copy it, if you'd like:

Just replace the blood bank link with your own local organization's URL.

February 26, 2003
Santa’s Haitian Workshop

Last week Walmart received some pleasant news. On February 18 FORTUNE announced that the country’s largest company is also No. 1 in the magazine’s annual survey of the Most Admired Companies.

Unfortunately, not everyone feels all warm and fuzzy about the Arkansas-based retail giant. Last April Jim Hightower wrote a fairly scathing piece about Walmart, for example.

In addition, some of Santa’s elves recently decided that Walmart needed to rethink its relations with at least one supplier. Yesterday the Eighth Circuit Court of Appeals agreed.

General Trading International, Inc. (GTI) sells seasonal craft items to Walmart and other retailers. GTI entered into a standard sales agreement to provide 250,000 vine reindeer for the 1999 Christmas season. The first deliveries would arrive at Walmart’s warehouses in August 1999.

These reindeer were to be made in Haiti. This fact needs to be kept in mind for two reasons:

1. Reindeer are not native to the Island of Hispaniola. The popular holiday critters’ natural habitat is closer to the Arctic Circle than the Tropic of Cancer.

2. Given the Haitians' unfamiliarity with reindeer, it’s entirely possible that the elves at Santa’s Workshop (Southern Division) might have a little trouble making a “craft” item depicting Rudolph, Comet, Cupid, Donner, Blitzen, or any of the other reindeer, especially in vine form.

These issues may have played a role in the creative problems that ensued.

Shortly after the first shipments arrived at Walmart, the buyers noticed some serious problems:

A Wal-Mart employee described the reindeer as "[m]oldy, broken grapevines, shapes that no more resembled a deer than they did a rabbit . . . scary-looking."

These results eventually led to cancellation of any further shipments, a flurry of e-mails and other contacts, harsh feelings, and, of course, litigation. 

As it turned out, GTI was not interested in playing any games about these reindeer.

The company sued Walmart for a $200,000 markdown that the retailer took off the billings, along with other unpaid charges. GTI alleged that it delivered 176,217 vine reindeer, for which Walmart owed $1,839,777.96, but on which Walmart had only paid $1,444,093.79. Walmart counter-claimed.

GTI eventually won $263,280 in the lawsuit, including the $200,000 from the markdown. On the other hand, GTI failed to win an additional claim for over $107,000 in attorney’s fees, which can be awarded under Arkansas law relating to these contract claims.

Both sides appealed.

The Eighth Circuit panel made short work of Walmart’s arguments that portions of the post-shipment e-mails acted to alter the terms of the original contract. In addition, the court noted that the Arkansas statute on attorney’s fees was permissive, not mandatory. Then they upheld the determination by the trial court that there was no compelling basis to award the fees in this case.

Accordingly, GTI is out the $107,000, which will cut into the $263,000 judgment somewhat.

That’s probably a just result all around, in my opinion.

After all, when you move Santa’s workshop that far south, you should probably also know that there might be some potential risks involved.

February 25, 2003
Even the purest of motives won’t necessarily keep you in court

I am sometimes impressed by the purity of motives of some folks who sue government agencies about alleged environmental violations. 

These motives may not be public-spirited, but they are nonetheless pure. 

In fact, some folks are extremely open about the driving principle behind the litigation—their own self-interest.

Last Friday the Fourth Circuit Court of Appeals dealt fairly summarily with two of these kinds of plaintiffs.

In Henrico County, Virginia, a prime piece of land for a shopping mall sits at the intersection of Interstate 64 and Interstate 295 (Oooh—two Interstates).

A developer went to county officials and managed to obtain approval for a brand new mall at this spot, to be called the Short Pump Town Center.

It’s no secret that the owners of regional shopping malls dearly love to have close access to these major highways. This recent story is a good example from my own state.

On the other hand, in Henrico County an existing regional shopping center sits only five miles away from Short Pump. The owners of that mall didn’t think this new mall was such a hot idea from their perspective. They decided to do what they could to keep it from being built.

Using two novel theories of liability, the plaintiffs not only went after Henrico County—they also sued USDOT Secretary Norm Mineta and his Federal Highway Administration (FHWA), under the Federal-Aid Highway Act (FAHA) as well as the National Environmental Policy Act (NEPA):

TRG's complaint alleges that … Short Pump Town Center will create such significant traffic congestion … that the FHWA will be required, without the ability to exercise any discretion in the matter, to approve a change in access to Interstate Highway 64. Similarly, TRG claims that the County's approval … for Short Pump Town Center is in violation of NEPA's requirement that an environmental impact statement (EIS) be prepared ... for "every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment. . . ." [citation omitted].

TRG's … claim …the Federal Defendants … violated the FAHA by refusing TRG's written request that they halt the County's approval process with respect to the Plan of Development for Short Pump Town Center until FHWA performed a formal assessment to determine whether operation of Short Pump Town Center would require a change in access to Interstate Highway 64. TRG's second claim against the Federal Defendants alleged the same in the context of preparing an EIS under NEPA.

After the District Court dismissed the claims without prejudice, the plaintiffs appealed to the Circuit Court.

They lost there, too, primarily because these competitors had no standing to bring their federal claims:

First, we know of no authority, and TRG has offered none, in support of the proposition that the value of privately held commercial property near an interstate highway … is within the zone of interests intended to be protected by the … requirement that the Secretary of Transportation … approve all changes in access to interstate highways subject to the [FAHA] … [citation omitted].

We are not surprised by this circumstance given the fact that the FAHA was enacted with the purpose to improve the interstate highway system in order to "meet the needs of local and interstate commerce, for the national and civil defense." 23 U.S.C. § 101(b).

[T]he potential devaluation of privately held commercial property is insufficient to trigger NEPA's requirement that an EIS be prepared for every proposal for major federal action significantly affecting the quality of the human environment…. [citations omitted.] ("[E]conomic and social effects are not intended by themselves to require preparation of an environmental impact statement [under NEPA]). Accordingly, TRG's NEPA claim under the APA fails the zone of interests test as well.

The owners of the other mall will likely continue their efforts against Henrico County and the developers of Short Pump. On the other hand, I think it’s unlikely that they will try to keep their competitors away by continuing to try to sue the Feds over this relatively routine local land use decision.

Even those with the purest of motives must comply with the basic rules about who can sue a government.

February 24, 2003
Taking a page out of the Federal budget playbook

State governments throughout the country are searching for money, as usual.  The current budget crisis facing most of them has only increased their efforts.

Some are now thinking about tapping a few accounts they originally earmarked for special purposes.

On a personal level, remember the time that you dipped into the money you put away for a new roof, and used it for groceries instead? That’s the idea, but on a very large scale.

This is not a new concept among governments. The Feds did it for years, and some states used a version of this tactic on prior occasions.

In today’s Washington Post, Michael Shear and Lori Montgomery reported on proposals by the Governors of Virginia and Maryland to take money set aside for transportation and apply it to other uses:

In Virginia, close to $2.2 billion from gas and sales taxes will flow into the state's transportation trust fund this year, so Gov. Mark R. Warner (D) and Republican lawmakers are hoping that the $63 million they are diverting to help balance the state's budget will never be missed.

Maryland Gov. Robert L. Ehrlich Jr. (R) has proposed using $500 million from the state's transportation fund to prevent massive budget cuts. He says he can do so without doing serious harm to the state's road and transit system.

These two governors are simply taking a page out of the Federal budget playbook. During the Clinton Administration, for example, the money raised from 4.3 of the 18.3 cents per gallon in federal fuel taxes went to the Treasury's general fund for deficit reduction, instead of being applied to the Federal Highway Trust Fund. (For some reason, this fact went unnoticed in this longish WaPo article, although a similar Bush Administration suggestion is duly noted.)

Not everyone is pleased about this bipartisan approach to finding money:

Bob Chase, president of the Northern Virginia Transportation Alliance, said politicians in Maryland and Virginia are undermining the stability of the trust funds.

"There are words in the English language that are ambiguous," Chase said. "Trust is not one of them."

Voters elsewhere caught wise to this funding switch a long time ago. As the WaPo article notes, several states are now legally required to spend transportation money on transportation.

Other states have been a bit clever about it--mine, for instance.

In the mid-1980s, Delaware created a Transportation Trust Fund (TTF).

The state dedicated specific revenue sources to the TTF, such as fuel taxes, tolls, driver’s license fees, and motor vehicle document fees. The money was earmarked for debt issuing, debt service, and the state’s capital spending on transportation.

Not too long after the TTF's creation, however, the early 90s’ recession caused a major hit on Delaware’s General Fund revenues.

Over the course of a few tight budget years, therefore, the General Assembly shifted the entire operating expenses for DelDOT to the TTF. This freed up a whole pile of General Fund money, and it now pays for most of the rest of the state’s programs other than transportation.

In practice, the TTF's spending priorities now follow this order: first, debt service; second, operating expense; and third, capital projects.

This year’s General Fund revenue estimates for Delaware remain diminished, primarily due to reduced business tax receipts. As part of her solution to this problem, Governor Minner proposed to shift the entire Division of Motor Vehicles from the Department of Public Safety to DelDOT.  She quantified this impact in her budget address:

This move will also produce a cost savings to the General Fund of $9.7 million.

Note that she didn’t say it would be a cost saving to the taxpayers.

The real impact is that the TTF simply picks up an additional operating expense, thus reducing the money available for capital projects. This point is not lost on Delaware’s highway construction industry.

Word is that these folks are expressing a few quiet grumbles about the proposal. They have probably also figured out that the Administration is reluctant to request an increase in transportation taxes and fees to make up the difference.

Jack Shafer’s recent cogent comments on state budget woes focused on the last decade’s state spending sprees that helped produce the current deficits so many states now face. He may find a look at how the states search under the couch cushions for money they already have to be equally worthy of notice.

February 24, 2003
Apocalyptic Visions

For some reason, over the past weekend there was an awful lot of discussion among the blognoscenti about certain familiar apocalyptic visions.

I'm not immune to having similar thoughts on occasion.

Try as I might, however, my contemplations invariably involve this foursome:

(l-r) Chico, Zeppo, Groucho, and Harpo Marx

No horses are involved, although I admit that Margaret DuMont sometimes is.

February 23, 2003
Faking it

Very few people enjoy the prospect of a police encounter along the highways.

The police aren’t so keen on it, either.

They’re never exactly sure who it is they’ve pulled over. The tension is often high on both sides, and the police video shows frequently broadcast instances where the police become the victims of assaults or worse.

The fact that criminals sometimes pass themselves off as police officers certainly doesn’t help matters. In addition to the immediate harm they cause, the stories about these fakes produce even more wariness among drivers when they are stopped by legitimate cops for legitimate reasons.

An AP story this weekend shows what can happen:

A woman was stopped on Interstate 76 by a man posing as a police officer, police said Saturday.

The encounter follows a report of a man who may have been impersonating an officer in Fort Collins. Authorities also believe that a 20-year-old Fort Collins woman was abducted and killed by a man pretending to be a policeman.

Fortunately in this case, the faker drove off when a Colorado state trooper drove by.

In other cases, the fakers sometimes learn while they might think it fun to pretend, it’s a whole ‘nother thing to meet a real cop when they commit their particular favorite crime.

In an incident reported by Ananova, a Canadian flashed a fake police ID and tried to obtain some free sexual favors from a prostitute.  

The whore was a fake herself, however, a cop apparently assigned to the Edmonton vice squad. The prosecutors dropped the solicitation charge, and the idiot pled guilty to the impersonating charge.

Two U.S. teenagers also made a bad choice of victim when they used their modified Dodge Intrepid to pull over a guy in a classic family car.

It was one of those times when one wishes that a camera recorded the event:

The youths flashed the strobe lights and blue high-intensity bulbs at a white minivan along a highway on Nov. 6. Both vehicles pulled over, and Police Chief Mike Martin got out, wearing his full uniform.

"Of course they were shaking like a leaf," Martin said.

When Martin walked up to the driver, he said, "His jaw was on the floor."

The real officer confiscated the fake officers' drivers' licenses and ordered them to meet him at the police station.

The police chief showed a flair for understatement:

"They definitely picked on the wrong vehicle," Martin said. "Hopefully they'll learn a lesson."

While these two cases ended happily and appropriately, the fact is that fake cops do no one any good and cause a lot of harm.

As soon as word spreads about one of these characters in a given area, I’d like to see the police use as many decoys as they can spare to catch them as soon as possible. There’s also a chance that the increasing ubiquity of cell phones will help reduce these incidents, if the folks pushing to outlaw their use in cars don’t get in the way.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002-2003