This page includes posts from March 2-8, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
March 8, 2003
My wife and I are going car hunting today.
I pity the sales people.
Over the years we've bought several cars, and every
time the sales people don't realize who they have to be careful about in
dealing with us.
It's not the lawyer. It's his wife.
When my bride finished her master's degree, she began
working for the Navy in procurement. During her tenure with the Federal
government she learned the equivalent of another degree, in contracting and
With that background and her skills, it's just not a
I love it.
The sales people typically focus on what I'm looking
for, which is always a big mistake, especially when we've already told them
the car will mainly be driven by her.
The price negotiations are even more fun. I have to
resist the urge to sit back and just grin, because part of the process
involves making the sales people believe I'm the tough one. Instead of the
"good cop, bad cop" method, it's a bit more like "bad cop, worse cop".
My wife says she doesn't really like the process of
buying cars. On the other hand, once she becomes immersed in the process of
making a deal, it's a truly awesome sight.
would say, "This is going to be great!"
UPDATE: It was. My wife's moxie and the presence
of manufacturer's rebates helped speed up a successful deal very nicely,
March 7, 2003
Pushing the sentencing envelope a bit too
A Sixth Circuit
decision issued this week shows that sometimes the Federal Justice
Department tries to push the sentencing envelope a bit too far.
Nancy Jo Rebman
mailed Leonard Rebman a packet of black tar heroin, from her place in
California to his place in Johnson City, Tennessee. The heroin totaled 0.036
grams (0.0013 ounces).
Leonard was Nancy
Jo’s estranged husband at the time.
Things became even
stranger after he received the packet, when he died of a heroin overdose.
The government went
after Nancy Jo, and she pled guilty to a criminal charge of distribution of
At the initial
sentencing, the Federal prosecutors attempted to show that Leonard’s death
resulted from this shipment. The District Court agreed, and sentenced Nancy
Jo to 292 months’ imprisonment. On appeal, however, the Sixth Circuit
pointed out that recent Supreme Court precedent required proof beyond a
reasonable doubt that death resulted from Nancy Jo’s mailing.
On remand, the
District Court held the government to this standard of proof, a higher level
than was used the first time. The judge eventually ruled that the
prosecutors failed to prove their allegation beyond a reasonable doubt.
By this time,
however, Nancy Jo had already served 30 months in prison, which was within
the range of recommended sentences for her distribution conviction. The
judge then sentenced her to “time served,” freeing her from any further jail
Not content with this
result, the prosecutors appealed. They argued that notwithstanding the prior
Sixth Circuit decision in this case, they were still entitled to seek and
obtain at least a 20-year prison term for Nancy Jo.
The Sixth Circuit
[T]he death resulting enhancement [provision in the
Sentencing Guidelines] applies only when the elemental facts supporting
the "offense of conviction" establish beyond a reasonable doubt that death
resulted from the use of the controlled substance….
[T]he stipulated facts underlying the defendant's
plea of guilty … establish only that she distributed a particular amount
of heroin; they do not establish that death resulted from the use of the
heroin. Further, the district court expressly concluded that the
government had failed to prove beyond a reasonable doubt that Mr.
Rebmann's death resulted from the distribution. Thus, by the express
"offense of conviction" language of the Guidelines, the defendant is not
eligible for the enhancement….
To hold otherwise would allow the sentence to be
increased seven fold - from 30 months to 20 years - by using as a
sentencing enhancement the element of a more serious crime. Such a
sentence raises the due process problem referred to colorfully in
McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986), as the sentencing
enhancement "tail which wags the dog of the substantive offense"….
It’s a shame that
Leonard Rebman died from a heroin overdose. On the other hand, it's a bit of
a stretch to suggest that his wife should sit in jail for twenty years or
more because she sent him about 1/1000th of an ounce of the junk,
especially when the government couldn’t make the evidentiary connection
between those two facts.
March 7, 2003
March 6 marked the
14-month anniversary of this site. As of that date, there have been 119,238
pages viewed by 92,370 visitors.
Thanks very much for your
patronage. Stop by again soon.
March 6, 2003
Effective Torture Techniques
With the capture of
Khalid Shaikh Mohammed, some folks are in a tizzy discussing the
possible use of
torture to obtain critical information from this top Al Qaeda
Last night, for
Hannity and Alan Colmes discussed this idea with former House Speaker
Leaving aside the
legal issues concerning torture devices, here are a few practical techniques
that many readers will recognize as extremely effective in reducing morale,
to the point that Mohammed will beg to give up all he knows.
The Detention Room.
Place Mohammed in a
small room 5 feet wide, 10 feet deep, and 11 feet high. A single 40-watt
bulb is on the ceiling, set to flicker sporadically. He will not be able to
fix or remove the bulb. A chair whose seat is 2 inches too small for
Mohammed’s hips is bolted to the middle of the room. From an unseen vent,
the faint odor of mimeograph
liquid will be pumped into the room.
Leave Mohammed in the
room for 5 hours, with directions to remain seated in the chair. He is given
five sheets of algebra problems to complete within one hour. Even if he
manages to complete each problem correctly, at least three problems per
sheet will be marked wrong, and he will be given five more sheets to
complete. Repeat each hour.
The Dining Hall.
For each meal,
Mohammed is taken to a large dining facility, with linoleum floors and
plastic laminated tables and chairs. All those present must go through a
line to be served their food.
Everyone in front of
Mohammed is given french bread pizza.
The servers will then tell him they are out of pizza. He is given a single
soggy grilled cheese sandwich and a glass of half-diluted orange drink. The
servers then give pizza to the persons behind him in the line.
brings his tray to a table, everyone else at the table either leaves at
once, or tells him he can’t sit there.
Mohammed is escorted
to a bath facility to maintain personal hygiene. While he showers, the
inside of Mohammed’s undergarments are lightly coated with
Ben-Gay® or similar heat-creating ointment. Once dressed, he is
immediately returned to the Detention Room (see No. 1 above). Repeat daily.
On the evening of the
third day, Mohammed will granted permission to attend a special dance at the
facility’s gym. However, none of the women (or men, for that matter) will
agree to dance with him, except for the prettiest woman present. She asks
him to dance.
Just as they are
about to start, however, the music will stop. She is to leave his presence
immediately, and a spotlight is then centered on Mohammed standing alone on
the dance floor. All others present shall point and laugh at him. He is then
taken to the Detention Room (see No. 1 above). Repeat every other evening.
Every other day,
Mohammed is escorted to a soccer field. He will be the last person picked,
and is benched for the entire game. After the game, he is made to take a
shower (see No. 3 above).
horrifying regimen, Mohammed should
only be able to hold out for five days at most. Then we’ll hear everything
March 5, 2003
The press remains free--to pay a reasonable fee for
Last Friday the
Court of Appeals issued what it clearly hoped would be the last
appellate opinion in a long-running First Amendment dispute about newracks
at the Hartsfeld
essentially combined sets of newspaper vending machines. They typically
provide a wide selection of newspapers to buy, but use less square footage
than required for the same number of individual newsboxes. They are a common
sight in railroad stations, bus terminals, airports, and other places where
lots of people walk by.
The City of Atlanta
owns Hartsfeld. As is typical for airports receiving Federal assistance,
Hartsfeld is required to at least attempt to run itself on a self-sufficient
Hartsfeld is better
situated than many other airports to fulfill this daunting task. Over 63
million folks pass through it each year, and the City makes a significant
attempt to have most of them drop a dollar or two off at the airport while
In addition to
parking fees, Atlanta also makes money from various concession agreements
for restaurants, newsstands, and other shops on site. These two sources
alone account for half of the airport’s total revenues.
The newsstand leases
include provisions to make sure airport users have access to critical items,
such as a wide variety of newspapers.
In addition, prior to
1996 the City also had similar revenue-raising deals in place for newsboxes
and newsracks, which many airport users prefer instead of standing in line
at outlets such as
In preparation for
the Olympics, the City made new deals with
others to spruce up the airport. This included setting a new rental fee for
newsracks, based on a flat rate instead of the old method of taking a
percentage of sales.
companies took umbrage at the
suggestion that they should now pay a fee to sell their newspapers at the
airport’s new racks, and sued under the First Amendment to block the
They won at the
District level, and obtained an injunction against paying for the privilege
of selling their papers from the new vending machines.
On appeal, however,
the unanimous en banc Circuit Court explained the difference between
a newsrack placed along a city street and a newsrack at the airport, at
least under current First Amendment law.
The usual rule about
newsboxes is that the government cannot charge a placement fee that brings
in more revenue than the government’s administrative cost of overseeing the
placement (free or next to nothing, in other words).
At airports like
Hartsfeld, however, the situation is different:
The Airport is operated as a self-sufficient business
by the City, as mandated by statute and required by federal regulation,
and the Plan at issue here is an outgrowth of its role as a business
proprietor rather than its ordinary role as a regulator….
In a proprietary capacity, the City has a substantial
interest in the "bottom line," and, when the City acts as a proprietor,
reasonable regulations may include profit-conscious fees for access for
expressive conduct, in a manner similar to fees that would charged if the
forum was owned by a private party ([e.g.], … a fee for displaying
advertisements in a newspaper).
So far so good. Then
came the truly interesting part:
Upon remand, the district court should not be
precluded from considering the City's claim, if any, for lost revenues
from enjoined fees that we have determined were constitutionally
permissible, and, upon approval of the Airport's new newsrack Plan, this
case should be finally resolved.
opinions were not as polite. Here’s a sample from Judge Carnes:
This is not a complicated matter. For six years these
publisher plaintiffs and the multi-billion dollar corporate conglomerates
of which they are a part have been getting a free ride on the public's
back. It is time for them to pay up. They owe the City an amount equal to
the total of all the fees that the City would have collected over the
years but for the wrongful part of the injunction they persuaded the
district court to enter. Plus interest….
One would hope that these particular plaintiffs,
powerful publishers whose papers preach principles of public duty and
civic virtue, might recognize their own legal, equitable, and civic duty
in this instance. If not - and statements of USA Today's attorney at oral
argument indicate not - the district court must force them to pay up, just
as courts forced the robber barons of old to pay what they owed.
This part of the
decision may seem a bit surprising. Nonetheless, it’s analogous to other
situations, where those who seek injunctions must also provide some security
against the possibility that they might just be wrong.
This can present a problem in some
For example, almost
exactly 3 years ago U.S. District Judge William Pauley III held a temporary
restraining order (TRO) hearing in a courtroom of the Southern District of
New York. A man named McKeown sued my clients and seven highway toll
agencies from Maryland, New Jersey, and New York, under the Clean Air Act
and other federal environmental laws. McKeown sought a temporary restraining
order to block the collection of any highway tolls, pending a trial
on his primary claim that toll booths "caused" illegal pollution.
anyone seeking a TRO would normally have
to post a bond to reimburse the defendants, if the injunction were later
determined to have been a mistake.
The TRO rules
usually call for the next hearing within 10 days, so the risk and the bond
to cover it are fairly short-term items.
In this case,
however, the other agencies’ attorneys and I presented affidavits pointing
out that our clients’ combined toll revenues averaged about $7 million per
Do the math.
Judge Pauley had the
following colloquy with the plaintiff:
The Court: Mr. McKeown, are you prepared to post a
bond in this case?
The Plaintiff: No, your Honor.
For this and other
good reasons, no injunction issued that day. The case eventually went up to
the U.S. Supreme Court, where it
Based on the
concurring opinions, I can well imagine just how happy the en banc
Eleventh Circuit would be if the reimbursement issue returns this newsrack
case to their courtroom. It frankly looks like they were giving a very
strong signal to settle what remained of the dispute, with a not-so-veiled
warning to whoever dared to bring it back.
March 4, 2003
Focusing on the bottom line isn’t always the right
thing to do
It always seems that
as every April 15 approaches, it is accompanied by an increasing number of
court opinions dealing with taxation.
This year is no
Last week the
First Circuit Court of
Appeals handed down a decision that reminds business owners that it’s
not a good idea to focus solely on the bottom line, when signing a tax
return someone else prepared for them.
incorporated her trade show exhibit company, InterEx, Inc., in 1993. She
retained George Coupounas to be her outside counsel and accountant for the
No fees for his
services were discussed, apparently, but the company nonetheless deducted
$4,695 for Coupounas’ work on its 1993 tax return.
In 1994, however, the
tax return for InterEx showed a whopping $65,000 deduction for Coupounas’
There were just a few
problems with this deduction, as it turned out.
billed InterEx for the $65,000.
InterEx had no
records to support the charges.
“Moreover, the services Olbres testified that
Coupounas performed could not reasonably have been valued at $65,000
to testify about the work he did, and would not cooperate with the IRS
when they asked about his work for InterEx.
ask for payment for this 1994 work until 1998, which is when Olbres first
became aware of the bill.
Olbres signed the
return as company president and sole stockholder.
And finally, as the
Court noted, “Olbres had not examined the tax return, other than
the bottom line, when she signed.”
Based on this sorry
history, the tax court upheld the IRS Notice of Deficiency. This wiped out
the $65,000 deduction. As an added bonus, the court imposed negligence
penalties on the company.
It’s safe to say that
the First Circuit’s unanimous opinion affirming the tax court’s decision has
a certain tone to it.
Olbres signed the return as well, but if she read it
at all, she did so cursorily.
Since Coupounas has been so lackadaisical in pursuing
payment for these alleged debts, it is fair to infer that, to put it
mildly, their value was distorted for tax purposes.
Gee. Ya think?
I fully expect to
read similar cautionary tales issuing from the nation’s Circuit Courts about
this and other ways to screw up one’s tax returns, over the next six weeks
right time for it.
March 3, 2003
Finding the money
A particular set of
old guys are a pretty common sight on Delaware’s beaches during the summers.
I’m sure there are similar collections of retirees walking along many other
East, Gulf, and West Coast beaches.
No matter which
location, these seasoned citizens show no interest in any of the young
tanned beauties of either sex, on display in the bright sun.
seniors are there for the money--if they can find it.
They wear special
earphones, wave their
metal detectors back and forth above the sand, and occasionally dip down
with a special sieve to see what set off the signal.
The usual results are
fairly modest, but every so often there’s a nice payoff.
government hopes for the same result, but on a vastly different level, and
usually without the earphones.
An article in the
statewide newspaper today discussed a $58.1 million recovery of
abandoned property from a single corporate source. It’s a significant
addition to Delaware’s depleted coffers.
The state's Division
of Revenue includes a small
Unclaimed Property. It handles a search and recovery effort to try to
make the proceeds available to the rightful owners, before the money
officially becomes the state’s to have, to hold, and to spend.
With over a
half-million corporations, along with the usual collection of potential
abandoned property sources such as banks and insurance companies, Delaware
also uses outside audit firms and other assistance to track down escheatable
property and eventually assume ownership over it.
windfall earned the recovery firm a pleasant little $6 million fee, for
The revenues that
states derive from abandoned property laws are not chump change:
Delaware has received $1.1 billion from abandoned
property claims during the past decade. As a revenue source for the state,
the claims rank behind only personal income taxes, business franchise
taxes and the state lottery.
I should also point
out that is no truth to the rumor that the Bureau’s motto is
the cheat in escheat.
As one might imagine,
it’s difficult to estimate the likely revenue from abandoned property on a
consistent, predictable basis. Therefore, from a budget perspective
abandoned property is usually viewed as a good source for one-time
expenditures or capital projects. It’s just not reliable as a structural
element for funding the state’s operating expenses.
On the other hand,
the money does spend. Several years ago an initial payment of $35 million
from a settlement of abandoned property litigation between Delaware and New
York became the Blue Hen State’s
Twenty-First Century Fund. Among other beneficial purposes, this money
helps purchase of land under the state's open space program, buys
development rights for farmland preservation, and provides water and
wastewater infrastructure assistance.
laws typically provide for a long claims period before the money drops down
into the state’s pockets. Here’s a link to a
national database, where you can
start looking to see if any of that cash should go to you first.
Charity begins at home, after all.
March 3, 2003
Living in two places at once
In Rehoboth Beach, we
reside in two places without moving.
There is a vast
difference between the immensely crowded summers and the winters, when it's
mostly just us locals.
Compared to other
small towns, however, Rehoboth
doesn’t provide quite the same mid-winter experience known to inland
municipalities with similar
year-round populations. That's because hundreds of homes sit dark and
unused in this resort, waiting for the summer season.
The downtown business
district remains pretty busy year-round, but several neighborhoods are
This weekend we saw
another sign of this distinct characteristic.
afternoon I drove through a residential neighborhood on the south side of
town, to pick up my younger daughter and one of her teammates and take them
to the opening day of soccer practice.
In the middle of
Hickman Street, about 3 blocks from the beach, I saw a dead possum.
A large, fully mature
turkey buzzard calmly stood near the semi-flattened marsupial, picking at a
fine morsel or two as I approached. (Fine for the buzzard, that is. Raw
possum is not my idea of lunch.)
This bold bird didn’t
move as I drove around it.
After I picked up the
girls, we returned to the same street. Another vulture had already joined
the first one, and the two birds stood by their roadkill prize as we passed
The girls produced
the usual “Ewwww!” sounds.
I reminded them of
the Circle of Life.
They were not
Now, if it were
summertime, things would be very different.
“thump-thump” sound of the possum being run over would still have occurred
late at night, as this one probably did.
On the other hand,
with the very first dog-walk of the day along Hickman, at about 5:30 a.m.,
there would have been an indignant and immediate call to Rehoboth Public
Works to pick up the dead possum. It would be gone before 7:30.
Those buzzards would
have found their lunch eventually, but surely not in the middle of a
Rehoboth street, in the middle of a Saturday afternoon, in the middle of the
It's just a
different kind of place this time of year.
March 2, 2003
Kudos to Charles Kuffner!
I’m looking forward to reading all about his experiences as a blogging
Little League Coach.
The season’s just begun, and Kuffner’s
opening pieces about the initial makeup of the team and its first few
practices look promising.
Kuffner is a Staten Island transplant now living a very full life in
Houston, Texas. He’s an avid baseball fan and former player, and someone had
the bright idea that Kuff should coach a team of budding baseball stars.
Kuffner also shares a predilection toward good writing, a strong sense of
humor, and a deep love of baseball with CBS reporter
Several years ago Geist wrote
Little League Confidential, a wonderful book about his years as a Little
League coach in the suburban wilds of New Jersey. The book was not simply
laugh-out-loud funny, as Geist often is during his segments on CBS. It also
gave its readers some real insight into the beneficial influence volunteers
like Kuffner can have on kids that may not have such a great family life.
In the early 1960s I was a Little League benchwarmer for a couple years,
with a solid record of limited play in right field during the last inning,
in games where we had no chance of winning. My coke-bottle lenses and a
penchant for swinging wildly at the first pitch, no matter how awfully
thrown, probably diminished my coaches’ confidence.
I was not crushed by this turn of events.
Our daughters spent several happy years playing Little League softball
and excelling at it, producing a slew of trophies and other fun memories. My
wife and I spent many hours each spring working at the concession stand,
peeking over the counter to watch our daughters’ at-bats.
Kuff and the other coaches deserve much credit for keeping up the
tradition of community service to kids, especially during this nervous
period. The beauty of this arrangement is that the rest of us will now be
able to enjoy the experience vicariously through Kuff’s blogging.
It’s just one more reason to love the Internet.