Sneaking Suspicions
 
Archives-- March 2-8, 2003

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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 archive pages.

March 8, 2003
Car Hunting

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 negotiation.

With that background and her skills, it's just not a fair fight.

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.

As Flounder 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, thankewverymuch.

March 7, 2003
Pushing the sentencing envelope a bit too far

A Sixth Circuit sentencing appeal 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 heroin.

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 time.

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 disagreed:

[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
Traffic Report

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 operative. 

Last night, for example, Sean Hannity and Alan Colmes discussed this idea with former House Speaker Newt Gingrich.

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.

1. 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.

2. 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.

Whenever Mohammed brings his tray to a table, everyone else at the table either leaves at once, or tells him he can’t sit there.

3. The Shower.

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.

4. Recreation.

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.

5. Exercise.

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).

Under this horrifying regimen, Mohammed should only be able to hold out for five days at most. Then we’ll hear everything he knows.

March 5, 2003
The press remains free--to pay a reasonable fee for airport newsracks

Last Friday the Eleventh Circuit 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 Atlanta International Airport.

Newsracks are 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 basis.

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 there.

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 W.H. Smith

In preparation for the Olympics, the City made new deals with Coca-Cola and 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.

Several newspaper 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 charges.

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.

The concurring 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 cases.

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.

Of course, 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 day.

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 mercifully ended.

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 different.

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.

Tamara Olbres incorporated her trade show exhibit company, InterEx, Inc., in 1993. She retained George Coupounas to be her outside counsel and accountant for the business.

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’ professional fees.

There were just a few problems with this deduction, as it turned out.

  • Coupounas never 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 [footnote omitted].”

  • Coupounas refused to testify about the work he did, and would not cooperate with the IRS when they asked about his work for InterEx.

  • Coupounas didn’t 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.

For  example:

  • 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 or so.

It’s the 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.

These particular 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.

Every state 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 Bureau of 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.

This particular windfall earned the recovery firm a pleasant little $6 million fee, for example.

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

We put 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.

Abandoned property 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 modest 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 almost ghostly.

This weekend we saw another sign of this distinct characteristic.

Early Saturday 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 them.

The girls produced the usual “Ewwww!” sounds.

I reminded them of the Circle of Life.

They were not impressed.

Now, if it were summertime, things would be very different. 

The familiar “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 summer.

It's just a different kind of place this time of year.

March 2, 2003
Coach Kuff

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 Bill Geist.

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.


   

Contact Information:

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

fschranck-at-
sneakingsuspicions.com


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© Frederick H. Schranck 2002-2003